02/28/2018 06:00 PM House RESOURCES

        HB 355-FIRE;FOREST LAND; CRIMES;FIRE PREVENTION                                                                     
                                                                                                                                
6:14:56 PM                                                                                                                    
                                                                                                                                
CO-CHAIR  JOSEPHSON announced  that the  final order  of business                                                               
would be  HOUSE BILL NO.  355, "An Act  relating to the  crime of                                                               
criminally negligent burning; relating  to protection of and fire                                                               
management  on forested  land; relating  to  prohibited acts  and                                                               
penalties  for prohibited  acts on  forested land;  and providing                                                               
for an effective date."                                                                                                         
                                                                                                                                
CO-CHAIR  JOSEPHSON  reminded  the  committee  the  deadline  for                                                               
amendments to HB 355 was 5:00 p.m. on [3/1/18].                                                                                 
                                                                                                                                
REPRESENTATIVE   RAUSCHER   stated   his   intention   to   offer                                                               
amendments.                                                                                                                     
                                                                                                                                
CO-CHAIR JOSEPHSON opened public testimony.                                                                                     
                                                                                                                                
REPRESENTATIVE PARISH stated his  intention to offer an amendment                                                               
related to the definition of forested land.                                                                                     
                                                                                                                                
CO-CHAIR JOSEPHSON  questioned whether Representative  Parish was                                                               
concerned  about  the  definition  because  it  may  be  used  in                                                               
criminal proceedings.                                                                                                           
                                                                                                                                
REPRESENTATIVE  PARISH  pointed  out  all  disputes  may  not  be                                                               
resolved in court; for example,  the legality of firecrackers set                                                               
off on a beach.                                                                                                                 
                                                                                                                                
6:18:13 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  DAVID   GUTTENBERG,  Alaska   State  Legislature,                                                               
speaking  as  the  sponsor  of HB  355,  informed  the  committee                                                               
amendments that strengthen and clarify  a bill are not a problem;                                                               
however, he cautioned an amendment to  a definition in HB 355 may                                                               
affect other statutes.                                                                                                          
                                                                                                                                
6:18:51 PM                                                                                                                    
                                                                                                                                
JOHN  "CHRIS"  MAISCH,  State  Forester;  Director,  Division  of                                                               
Forestry, Department of Natural  Resources (DNR), stated forested                                                               
land is defined  in several sections of  statute, particularly in                                                               
the  Alaska Forest  Resources  and Practices  Act,  and thus  has                                                               
multiple meanings across various statutes.   He also cautioned an                                                               
amendment to HB 355 could  affect other statutory citations.  Mr.                                                               
Maisch pointed out the definition  of forested land must be broad                                                               
enough to  include all flammable  materials, and gave  an example                                                               
of burning material flying through  the air and igniting fires in                                                               
a  nearby subdivision.   He  said  the definition  is written  to                                                               
include  "any  type of  burnable  material  that's vegetative  in                                                               
nature."                                                                                                                        
                                                                                                                                
REPRESENTATIVE   PARISH   asked    whether   the   aforementioned                                                               
subdivision was "temporarily forested land."                                                                                    
                                                                                                                                
MR. MAISCH remarked:                                                                                                            
                                                                                                                                
     Forested land would be where  the fire was ignited, and                                                                    
     the point  of origin,  which was in  the yard,  in that                                                                    
     fluff ... so, for the  purposes of this statute and how                                                                    
     it's  enforced, that  would have  been a  burnable fuel                                                                    
     type.   So, whether  you would include  unburnable, you                                                                    
     know,  surfaces in  forested land,  now  that gets  ...                                                                    
     down  in the  weeds  a  bit, but  it's  where the  fire                                                                    
     originates from is  the issue.  It  would not originate                                                                    
     from asphalt,  typically, but it could.  ... Hot brakes                                                                    
     can  start  fires,  it's pretty  amazing  the  type  of                                                                    
     ignition sources we have for fires ....                                                                                    
                                                                                                                                
6:22:05 PM                                                                                                                    
                                                                                                                                
CO-CHAIR JOSEPHSON opened public testimony on HB 355.                                                                           
                                                                                                                                
6:22:20 PM                                                                                                                    
                                                                                                                                
JAMES  SQUYRES testified  in opposition  to HB  355 as  currently                                                               
written.   He urged the committee  to amend the bill  in order to                                                               
bring  AS 42.15  "in  line with  constitutional elements"  within                                                               
[Article 12 - General Provisions,  Section 5. Oath of Office], of                                                               
the  Alaska State  Constitution.   He directed  attention to  the                                                               
bill [on page 2, lines 7-15], which read:                                                                                       
                                                                                                                                
     Sec. 41.15.040. Right of entry  to control and suppress                                                                    
     fires.  Upon   approval  by  the  commissioner   or  an                                                                    
     authorized  agent,  an  employee  of  the  division  of                                                                    
     forestry [LANDS], or of  any organization authorized to                                                                
     prevent, control,  or suppress a fire  or a destructive                                                                    
     agent,  and   others  assisting   in  the   control  or                                                                    
     suppression of  a fire  upon request  of an  officer or                                                                    
     employee of the  United States or the state  may at any                                                                    
     time  enter   upon  any   land,  whether   publicly  or                                                                    
     privately  owned,   for  the  purpose   of  preventing,                                                                    
     investigating, suppressing,  or controlling  a wildland                                                                
     fire or a destructive agent.                                                                                               
                                                                                                                                
MR. SQUYRES remarked:                                                                                                           
                                                                                                                                
     Director Chris  Maisch testified before  this committee                                                                    
     earlier  today that  prevention  terminology, that  was                                                                    
     used  in  the  past,  is  being used  as  a  basis  for                                                                    
     extending  language  to  include investigations  of  an                                                                    
     event  after  the fact.  ...  What  is in  question  is                                                                    
     current  prevention terminology  that  is currently  in                                                                    
     conflict  with  [Article  1 -  Declaration  of  Rights,                                                                    
     Section 14. Searches and Seizures,  of the Alaska State                                                                    
     Constitution].    Currently,  a  forestry  employee  is                                                                    
     considered  a   peace  officer  under   Alaska  Statute                                                                    
     41.15.950,  and  may climb  over  a  locked and  posted                                                                    
     gate,  and walk  down  your driveway  ... where  you've                                                                    
     clearly expressed your  expectation of privacy, without                                                                    
     probable  cause  that a  crime  is  being committed  to                                                                    
     prevent a wildfire.  Now, none  of us have a problem if                                                                    
     there is  probable cause, but [Article  1 - Declaration                                                                    
     of Rights, Section 22. Right  of Privacy, of the Alaska                                                                    
     State  Constitution] indicates  that the  right of  ...                                                                    
     people  to  privacy  is recognized  and  shall  not  be                                                                    
     infringed.   The reason they want  to add investigation                                                                    
     language is to put into  statute this veil of authority                                                                    
     to enter  onto private  property without warrant.   The                                                                    
     scary part is when  Director Maisch indicates that they                                                                    
     already have  the right simply because  it's already in                                                                    
     statute.  It is in conflict with the constitution.                                                                         
                                                                                                                                
MR.  SQUYRES further  noted testimony  related to  constitutional                                                               
elements  was directed  to the  statute and  not to  the proposed                                                               
amendment to  statute.  He  advised the committee to  remove both                                                               
the words  "prevention" and "investigation" from  AS 41.15.040 to                                                               
realign the  statute with  its title, and  with the  Alaska State                                                               
Constitution.   Mr. Squyres also urged  for a title change  in AS                                                               
41.15.040  from  "Right"  to "Authority."    Further,  within  AS                                                               
41.15.950, he cautioned against  the terminology of peace officer                                                               
as  applied to  "employees of  forestry" who  are not  trained as                                                               
peace  officers;   he  described  a  procedure   pursuant  to  AS                                                               
11.61.220, Misconduct of Weapons in  the Fifth Degree, and opined                                                               
that is  a procedure a  person on a fire  crew is not  trained to                                                               
perform.                                                                                                                        
                                                                                                                                
6:26:05 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  RAUSCHER referred  to two  forthcoming amendments                                                               
"that take care of some of the problems that you mentioned."                                                                    
                                                                                                                                
CO-CHAIR  JOSEPHSON asked  Mr. Squyres  whether he  was concerned                                                               
that Division of Forestry officers have a hidden agenda.                                                                        
                                                                                                                                
MR. SQUYRES said  there are opportunities for abuse.   He gave an                                                               
example of a  former fire prevention officer who  proposed a fire                                                               
prevention  plan  to  the  Deltana   Community  Corporation.    A                                                               
provision  in  the  prevention plan  said,  "after  three  calls,                                                               
according  to its  plan, they  were just  going to  come by  your                                                               
place and  walk down your  driveway ... whether you  were burning                                                               
that fire  at that time,  or not."   Although this  provision was                                                               
removed  from  the  plan,  he restated  his  concerns  about  the                                                               
opportunity  for abuse  by fire  prevention  officers, and  about                                                               
[untrained] members  of fire crews designated  as peace officers.                                                               
Mr.  Squyres  agreed  it  is  time to  align  and  modernize  the                                                               
affected statute.                                                                                                               
                                                                                                                                
6:29:35 PM                                                                                                                    
                                                                                                                                
MIKE  TRIMMER,  Acting  Fire Management  Officer,  Valdez  Copper                                                               
River Area, Division  of Forestry, DNR, expressed  his support of                                                               
HB 355.   He informed the committee the  bail schedule [provision                                                               
within  HB 355]  is an  important enforcement  piece of  the fire                                                               
prevention   program  that   has   been   missing.     Currently,                                                               
enforcement options are  a verbal warning, or  a written warning,                                                               
or a  misdemeanor citation  and mandatory  court appearance.   He                                                               
said multiple  verbal and written  warnings are  weak; therefore,                                                               
frontline  firefighters and  initial  attack incident  commanders                                                               
need  to take  care of  some enforcement  issues directly  at the                                                               
scene,  and avoid  a later  investigation.   In addition,  a bail                                                               
schedule would provide a component  of public education through a                                                               
commonly  known  schedule  of  fines.    Mr.  Trimmer  said  fire                                                               
prevention officers  do not want  to make criminals out  of those                                                               
who forget  to get a burn  permit.  From his  experience, he said                                                               
it is  a rare occurrence that  a fire investigator needs  to come                                                               
to  the  fire  scene  after  the  fact,  because  initial  attack                                                               
firefighters are trained to preserve  the point of origin, and to                                                               
perform  basic preliminary  fire  investigations;  if they  could                                                               
also  issue a  violation for  non-misdemeanor/felony events,  the                                                               
work  would be  done.   In  fact, there  are  few qualified  fire                                                               
investigators   in   the   state,   which   creates   delays   in                                                               
investigations  and  staffing  issues, and  fewer  investigations                                                               
would also mean fewer right-of-entry concerns.                                                                                  
                                                                                                                                
6:33:57 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE PARISH  asked for  Mr. Trimmer  to comment  on the                                                               
definition of  fire prevention officer  as peace officer,  and on                                                               
the concealed carry [law].                                                                                                      
                                                                                                                                
MR. TRIMMER expressed his understanding  he and his employees are                                                               
noncommissioned officers who do not -  and do not wish to - carry                                                               
badges or  guns.  As to  the forested land issue,  he advised the                                                               
fuel has to  be able to support the carry  and spread of wildland                                                               
fire.   In further response  to Representative Parish,  he opined                                                               
forested land has  to be able to support the  ignition and spread                                                               
of fire,  and sparse green  grass on a beach  at the side  of the                                                               
ocean is  not forested  land, although by  definition it  may be.                                                               
Tundra supports  fire, as do  hayfields and grass  before turning                                                               
green, and he  added, "... I don't think you'd  find a prevention                                                               
officer  in  the  state  trying  to  cite  anybody  for  anything                                                               
different than that, regardless of, of what the definition is."                                                                 
                                                                                                                                
REPRESENTATIVE   PARISH  referred   to  earlier   testimony  that                                                               
investigations performed at the time  of the fire reduce division                                                               
staffing.                                                                                                                       
                                                                                                                                
MR. TRIMMER restated engine captains  and incident commanders are                                                               
trained in  basic investigation and  prevention skills,  and thus                                                               
can  define  the  point  of  origin,  determine  the  cause,  and                                                               
establish protection.   Although a fire that  spreads and damages                                                               
property would require a fully  qualified fire investigator, most                                                               
incidents can  be handled  by the initial  attack resources  if a                                                               
bail schedule of violations were in place.                                                                                      
                                                                                                                                
REPRESENTATIVE  PARISH asked  whether  the  bill's definition  of                                                               
forested land would confuse members of the public.                                                                              
                                                                                                                                
MR.  TRIMMER, speaking  from his  experience, said  there was  no                                                               
confusion by  Alaskans; fireworks  discharged on a  graveled area                                                               
over  a  body  of  water  are  legal  by  state  statute,  unless                                                               
prohibited by local ordinances.                                                                                                 
                                                                                                                                
6:40:23 PM                                                                                                                    
                                                                                                                                
CO-CHAIR  JOSEPHSON, after  ascertaining  no one  else wished  to                                                               
testify, closed public testimony on HB 355.                                                                                     
                                                                                                                                
HB 355 was held over.