$3 fee proposal overnight AMC, RMC stays likely unconstitutional
February 16, 2011CONCORD — The bill that would charge a fee to overnight hikers staying in AMC and RMC properties is very likely unconstitutional, explained chairman of the Senate Energy and Natural Resources Committee Sen. Bob Odell, a Republican of Lempster, at Thursday's hearing on the legislation.
The bill, SB 128-FN, is sponsored by Sen. Lou D'Allesandro, a Democrat of Manchester, and Sen. John Gallus, a Republican of Berlin. Odell alerted his fellow committee members, including vice chairman Gallus and those on hand to testify, that a Senate staffer had alerted him to this concern.
SB 128-FN seeks to establish a fee on the occupancy of sleeping accommodations of both the Appalachian Mountain Club (AMC) and the Randolph Mountain Club (RMC) to help pay for search and rescue (SAR) operations of the state Fish and Game Department.
The bill is crafted to impose a fee or tax on only two nonprofit hiking clubs, while the state constitution grants the legislature the power "to impose and levy proportional and reasonable assessments, rates, and taxes, upon all the inhabitants of, and residents within, the … state." Other aspects of the proposed fee are also likely unconstitutional, violating the clubs' right to equal protection of the law and singling them out for different treatment from other providers of overnight accommodations whose customers participate in outdoor activities that could require SAR assistance.
Two North Country men — Major Kevin Jordan of Groveton, Assistant Chief of Fish and Game Law Enforcement, and RMC president John Scarinza of Randolph, former Commander of Troop F of the State Police — articulated opposing arguments.
Jordan explained that hikers make up a large percentage of those who require the help of Conservation Officers and volunteers, and that the proposed new fee fill the gap of the fees already paid by hunters, anglers, snowmobilers, and ATVers.
Fielding a 16-member advanced rescue team as well as a 14-member dive team has substantially raised SAR costs. Training alone costs $5,000 for each participant.
Without adequate dedicated SAR funding to pay for these relatively new costs, the Department has been skimping on vehicular and boat replacement costs, endangering CO safety, Jordan said. Further study will not solve the problem, "we need somebody to cut a check," he said.
Scarinza pointed out, however, that he had participated in several high-profile searches during his 30—year law enforcement career working side-by-side with Fish and Game.
"While the hiking public is certainly a good-sized portion of those in trouble, some of the more expensive and time-consuming searches are in fact for members of the non-hiking community, such as the very young, the elderly or the emotionally distressed," the retired lieutenant said. "It's just not fair or reasonable to rely on only two individual organizations in the entire state to generate funds when historically we have been a part of the solution (by supplying SAR volunteers and working to prevent the need for rescues) and not a creator of the problem."
RMC charges $12 and $7 for its rustic sleeping accommodations, which would mean that the proposed $3 fee would increase the cost of an overnight stay to hikers of by 25 and 43 percent respectively, Scarinza explained.
Both he and AMC policy director Susan Arnold said they and their organizations would work hard collaboratively with other stakeholders to come up with alternative ways to increase SAR funding.
One alternative would be to take a .002 fractional share of the state's Meals and Rooms Tax revenues, much of which is generated by residents and visitors who enjoy the state's outdoor resources, to provide a continuous SAR revenue stream.
Others who spoke in favor of the bill included Rep. Gene Chandler of Bartlett and Rep. Lyle "Rusty" Bulis of Littleton.
Peter Crane of Bartlett, vice president of the all-volunteer New Hampshire Outdoor Council (www.nhoutdoorcouncil.org), testified against the bill noting that on behalf of the organization "with regret. SB 128-FN, Crane said, "strives 'to make things work,' rather than to make things work well. The Council would like to support a bill that creates a reliable funding source for SAR that "is sufficient, enforceable, efficient, and equitable."
Chairman Odell said he hopes the Committee can vote on this bill by Feb. 24.