HCS CSSB 178(FIN): "An Act relating to civil nuisance actions; amending Alaska Rules of Civil Procedure 79 and 82; and providing for an effective date."
00HOUSE CS FOR CS FOR SENATE BILL NO. 178(FIN) 01 "An Act relating to civil nuisance actions; amending Alaska Rules of Civil 02 Procedure 79 and 82; and providing for an effective date." 03 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 04 * Section 1. AS 09.45.230 is repealed and reenacted to read: 05 Sec. 09.45.230. ACTION BASED ON PRIVATE NUISANCE. (a) A person 06 may bring a civil action to enjoin or abate a private nuisance. Damages may be 07 awarded in the action. 08 (b) A person may not maintain an action under this section based upon an air 09 emission or water or solid waste discharge, other than the placement of nuclear waste, 10 where the emission or discharge was expressly authorized by and is not in violation 11 of a term or condition of 12 (1) a statute or regulation; 13 (2) a license, permit, or order that is 14 (A) issued after public hearing by the state or federal
01 government; and 02 (B) subject to 03 (i) continuing compliance monitoring; 04 (ii) periodic review by the issuing agency; 05 (iii) renewal on a periodic basis; or 06 (iv) AS 46.40; or 07 (3) a court order or judgment. 08 (c) The provisions of (b) of this section do not apply to actions in which the 09 air emission or water or solid waste discharge that is the subject of the action produces 10 a result that was unknown or not reasonably foreseeable at the time of the 11 authorization. 12 (d) The provisions of (b) of this section remain in effect only as long as both 13 of the following are satisfied: 14 (1) AS 46.03.900 defines "pollution" as including the contamination or 15 altering of waters, land, or subsurface land of the state in a manner that creates a 16 nuisance; and 17 (2) AS 46.14.990 defines "emission" as the release of one or more air 18 contaminants to the atmosphere. 19 (e) Notwithstanding other provisions of law, except AS 09.50.170 - 09.50.240 20 and AS 19.25.080 - 19.25.180, a person may not bring a civil action to enjoin or abate 21 a private nuisance or to recover damages for a private nuisance unless the action is 22 authorized by this section. 23 (f) A person who is shielded under (b) of this section from a nuisance action 24 shall indemnify, defend, and hold the state harmless from a claim or court action for 25 inverse condemnation, including damages, costs, and attorney fees, for which the state 26 may become liable because of the air emission or wastewater or solid waste discharge 27 for which the person is shielded by (b) of this section. The state shall immediately 28 tender the defense of the inverse condemnation claim or court action to the person. 29 The provisions of (b) of this section do not apply to shield the person, if the person 30 fails to accept or refuses the tender of the defense. A person who prevails in the 31 defense of the claim or court action for inverse condemnation described under this
01 subsection shall be awarded full reasonable attorney fees and costs. 02 * Sec. 2. AS 09.45 is amended by adding a new section to article 4 to read: 03 Sec. 09.45.255. DEFINITION. In AS 09.45.230 - 09.45.255, "nuisance" means 04 a substantial and unreasonable interference with the use or enjoyment of real property, 05 including water. 06 * Sec. 3. AS 09.45.230(f), enacted by sec. 1 of this Act, amends 07 (1) Alaska Rule of Civil Procedure 79 by requiring a prevailing party to be 08 awarded full reasonable costs in certain actions rather than the items allowed as costs under 09 the rule; 10 (2) Alaska Rule of Civil Procedure 82 by requiring the court to award full 11 reasonable attorney fees to a prevailing party in certain actions. 12 * Sec. 4. This Act applies to an action if a final judgment has not been entered in the 13 action before the effective date of this Act, and to that extent this Act is retroactive under 14 AS 01.10.090. 15 * Sec. 5. As provided under AS 01.10.030, if a provision of this Act or the application of 16 a provision of this Act to a person or circumstance is held unconstitutional, the remainder of 17 this Act and the application of this Act to other persons or circumstances are not affected. 18 * Sec. 6. This Act takes effect immediately under AS 01.10.070(c).