03/05/2018 01:00 PM House RESOURCES

        HB 355-FIRE;FOREST LAND; CRIMES;FIRE PREVENTION                                                                     
                                                                                                                                
1:05:22 PM                                                                                                                    
                                                                                                                                
CO-CHAIR TARR  announced that the  first 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."                                                                                                         
                                                                                                                                
1:06:22 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  DAVID GUTTENBERG,  Alaska  State Legislature,  as                                                               
prime  sponsor, presented  HB  355.   He  explained  that HB  355                                                               
addresses  fire safety,  suppression,  and education.   The  bill                                                               
seeks to  restructure the  way fines are  levied, called  a bail,                                                               
which is  whether a person receives  a ticket, or goes  to court,                                                               
or is pursued because of  deliberately setting a fire that caused                                                               
considerable  damage.    The  bill   also  includes  a  component                                                               
addressing fire  safety, as  well as  clarifies the  authority of                                                               
fire   prevention  officers   to   enter   private  property   to                                                               
investigate  fires.   Currently,  if  it  is post-fire  and  fire                                                               
prevention officers  need to investigate,  they must  receive the                                                               
property  owner's permission  and without  said permission,  they                                                               
need to obtain a warrant for access.                                                                                            
                                                                                                                                
1:07:36 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE TUCK asked if a subpoena is required for access.                                                                 
                                                                                                                                
REPRESENTATIVE GUTTENBERG replied that  if a [wildland] fire goes                                                               
through  private property,  fire prevention  officers can  access                                                               
the  property  to  suppress,  control,  and  put  out  the  fire.                                                               
However,  to further  investigate after  the fire,  officers must                                                               
have  the property  owner's  permission or  obtain  a warrant  if                                                               
permission is denied.                                                                                                           
                                                                                                                                
                                                                                                                                
1:09:10 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE RAUSCHER  moved to adopt Amendment  1, labeled 30-                                                               
LS1382\D.2, Radford, 3/1/18, which read:                                                                                        
                                                                                                                                
     Page 2, lines 10 - 11:                                                                                                     
          Delete "or a destructive agent"                                                                                       
          Insert "[OR A DESTRUCTIVE AGENT]"                                                                                     
                                                                                                                                
     Page 2, line 12:                                                                                                           
          Delete "at any time"                                                                                                  
          Insert ", when responding to a wildland fire or                                                                   
     suspected fire, [AT ANY TIME]"                                                                                         
                                                                                                                                
     Page 2, lines 14 - 15:                                                                                                     
          Delete "or a destructive agent"                                                                                       
          Insert "[OR A DESTRUCTIVE AGENT]"                                                                                     
                                                                                                                                
CO-CHAIR JOSEPHSON objected for discussion purposes.                                                                            
                                                                                                                                
1:09:35 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE RAUSCHER  explained Amendment  1 limits  the times                                                               
when forestry  officials can enter  private property  by deleting                                                               
the  words "at  any time"  and  inserting "when  responding to  a                                                               
wildland fire or  suspected fire," and deletes  "or a destructive                                                               
agent."  He said the  amendment preserves the property rights and                                                               
the privacy of  property owners.  He  acknowledged officials need                                                               
to investigate  nearby properties  during a fire  and immediately                                                               
after, but [without the amendment]  officials could enter private                                                               
properties at a much later time.                                                                                                
                                                                                                                                
1:11:35 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE JOSEPHSON  questioned why Amendment 1  deletes and                                                               
inserts "or a destructive agent."                                                                                               
                                                                                                                                
REPRESENTATIVE RAUSCHER said the  definition of destructive agent                                                               
includes  bugs, which  is  not  a valid  reason  to access  one's                                                               
private property at any time.                                                                                                   
                                                                                                                                
1:12:38 PM                                                                                                                    
                                                                                                                                
ANNE   NELSON,  Senior   Assistant   Attorney  General,   Natural                                                               
Resources Section, Civil Division  (Anchorage), Department of Law                                                               
(DOL), stated she was also confused  by whether the intent of the                                                               
amendment was to remove "destructive agent".                                                                                    
                                                                                                                                
The committee took a brief at-ease.                                                                                             
                                                                                                                                
1:14:18 PM                                                                                                                    
                                                                                                                                
DARRELL  BREESE, Staff,  Representative  George Rauscher,  Alaska                                                               
State Legislature,  said the definition  of destructive  agent is                                                               
found in AS 41.15.170 as follows:                                                                                               
                                                                                                                                
      destructive agent means an insect, pathogen or other                                                                      
       environmental agent that causes damage to a forest                                                                       
     resource                                                                                                                   
                                                                                                                                
MR.   BREESE  further   explained  that   Division  of   Forestry                                                               
regulation  41 AAC  9595 places  the onus  for addressing  insect                                                               
infestation  wholly on  the property  owner  with the  division's                                                               
approval  or disapproval  of  the method  the  property owner  is                                                               
using.   As  written, the  amendment would  delete language  from                                                               
both HB 355 and from existing statute by the bracketed language.                                                                
                                                                                                                                
1:15:40 PM                                                                                                                    
                                                                                                                                
CO-CHAIR  TARR  requested  Mr.  Chris  Maisch  to  speak  to  why                                                               
"destructive agent"  is in current  statute and  whether removing                                                               
that term would be a problem.                                                                                                   
                                                                                                                                
1:15:40 PM                                                                                                                    
                                                                                                                                
CHRIS  MAISCH, State  Forester, Director,  Division of  Forestry,                                                               
Department of  Natural Resources (DNR), stated  that AS 41.15.020                                                               
gives the DNR commissioner the  power to make regulations related                                                               
to fires  and destructive agents  and that this definition  [of a                                                               
destructive agent]  is used in  numerous places in statute.   For                                                               
example, in an  emergency the commissioner can declare  a zone of                                                               
infestation and  then emergency regulations to  address something                                                               
such as a  bark beetle outbreak.  He advised  that in its history                                                               
the  Division of  Forestry has  not needed  to make  use of  this                                                               
statutory authority, but it exists for that reason.                                                                             
                                                                                                                                
1:17:13 PM                                                                                                                    
                                                                                                                                
CO-CHAIR  JOSEPHSON posited  that the  amendment would  prevent a                                                               
fire  officer  right of  entry  to  forested  land to  address  a                                                               
destructive agent, and an officer  would only have right of entry                                                               
when  responding to  a wildland  fire or  a suspected  fire.   He                                                               
surmised  the  amendment's  goal  of protecting  the  privacy  of                                                               
private property owners reaches across public lands.                                                                            
                                                                                                                                
MR.  MAISCH  replied  that  his comments  were  narrowed  to  the                                                               
"destructive agent"  piece, but that the  aforementioned would be                                                               
a concern.   He said the division has other  authority to declare                                                               
a zone of infestation to address  an issue of insects or disease,                                                               
although  he  would  read  the  amendment  narrowly  as  Co-Chair                                                               
Josephson described when it refers  to wildland fire or suspected                                                               
fire and  that there  could be  some potential  conflicts between                                                               
the two.                                                                                                                        
                                                                                                                                
CO-CHAIR  JOSEPHSON  stated  he   has  some  concerns  about  the                                                               
expansiveness of  this section under  the bill and  under current                                                               
law.  He  said his understanding of criminal procedure  is that a                                                               
person could  still file motion practice  and say notwithstanding                                                               
this  statute  or  this  bill,  something  should  be  suppressed                                                               
because  someone's  rights weren't  read  to  them or  a  warrant                                                               
should  have issued,  although one  would think  that this  might                                                               
support  the  state's  argument  that  a  warrant  wasn't  always                                                               
necessary.   He  said he  is making  the point  that there  could                                                               
still  be an  assortment  of motion  practice  in criminal  court                                                               
theoretically.                                                                                                                  
                                                                                                                                
1:19:46 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE BIRCH observed the  term destructive agent appears                                                               
in  multiple locations  in the  bill and  the bill  title relates                                                               
generally to  burning, negligent burning, and  everything related                                                               
to fire.   He asked whether the division  can quarantine property                                                               
due to  issues such as dead  standing trees on public  or private                                                               
land, without consent of the property owner.                                                                                    
                                                                                                                                
MR. MAISCH responded  he could not envision a  unilateral case in                                                               
which  the  division would  enter  property  without first  going                                                               
through  forest  practices   statutory  authority  involving  the                                                               
commissioner and a  best interest finding to establish  a zone of                                                               
infestation,  which   could  be   insects,  diseases,   or  other                                                               
pathogens,  and then  enacting emergency  regulations on  how the                                                               
division  would  intend  to  deal with  that,  which  could  mean                                                               
treatments on  private lands.   There would be a  more exhaustive                                                               
process  for the  division to  go through  besides just  making a                                                               
unilateral  decision  that  it   would  take  action  under  this                                                               
statute.  This statute is really focused on the fire piece.                                                                     
                                                                                                                                
REPRESENTATIVE  BIRCH   surmised  this   accommodation  currently                                                               
exists.                                                                                                                         
                                                                                                                                
MR. MAISCH answered correct.                                                                                                    
                                                                                                                                
MR. BREESE pointed out that the  section that would be amended by                                                               
Amendment 1, AS  41.15.040, deals specifically with  the right of                                                               
entry to control  and to suppress fires.  So,  if this section is                                                               
amended, the  Division of  Forestry would still  have a  right to                                                               
enter for  any other  reasons, such as  insect infestation.   The                                                               
changes suggested  by the amendment  are to limit the  entry when                                                               
[the division] is controlling and suppressing fires.                                                                            
                                                                                                                                
1:22:49 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE PARISH expressed his  concern about denying [state                                                               
fire officers] access  to land to prevent a  fire, to investigate                                                               
a  negligent fire,  or  to investigate  after a  fire.   He  said                                                               
Amendment 1 is overly restrictive and he cannot support it.                                                                     
                                                                                                                                
REPRESENTATIVE  DRUMMOND   noted  the  state  forester   did  not                                                               
indicate a destructive agent has  been an issue for the division.                                                               
Furthermore,  she  said,  if   insects,  diseases,  or  pathogens                                                               
contribute  to  fire danger  by  killing  trees, the  destructive                                                               
agent language must be part  of the assessment in fire prevention                                                               
by the division, and  there is no reason to remove  it.  She said                                                               
she therefore cannot support Amendment 1.                                                                                       
                                                                                                                                
REPRESENTATIVE JOSEPHSON stated he opposes  Amendment 1.  The law                                                               
as  written allows  a fire  officer to  enter public  and private                                                               
land to  prevent prospective fires because  of destructive agents                                                               
such as  bug infestations,  he said, and  he doesn't  have enough                                                               
knowledge  to say  that that  should be  prohibited.   He further                                                               
cautioned  against  encumbering  a  fire  official's  ability  to                                                               
access and inspect public land.                                                                                                 
                                                                                                                                
1:26:19 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE TUCK  asked whether  a destructive agent  could be                                                               
something   that   may   be  administered   to   prevent   insect                                                               
infestation.    He  requested  clarification  on  the  intent  of                                                               
existing statute regarding destructive agent.                                                                                   
                                                                                                                                
MR.  MAISCH  responded  that  destructive  agent  is  defined  in                                                               
statute  and means  insect pathogen  or environmental  agent that                                                               
can cause  damage to  the forest resource.   Whatever  the cause,                                                               
standing  dead timber  is  a more  receptive  and dangerous  fuel                                                               
source  to  wildland  fire  than  is  a  standing  green  forest.                                                               
Destructive  agent  is  rather  broad,  but  in  the  context  of                                                               
forestry  operations,  it  would  primarily be  for  spruce  bark                                                               
beetle infestations.   He reminded  members that the  spruce bark                                                               
beetle  infestation on  the Kenai  Peninsula was  substantial and                                                               
crossed public and  private ownership.  He  advised that prevent,                                                               
control, and suppress all have specific meanings in forestry.                                                                   
                                                                                                                                
1:28:43 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE TUCK surmised the  purpose of having this language                                                               
in  this section  is to  allow the  division to  check whether  a                                                               
property  owner  is  applying  flammable  agents  and/or  whether                                                               
something needs  to be applied  to prevent the trees  from drying                                                               
out and becoming a fire hazard.                                                                                                 
                                                                                                                                
MR. MAISCH answered the division would  not be checking on what a                                                               
property  owner is  applying.   He explained  that if  a property                                                               
owner  has  cut a  lot  of  timber  on  his/her land  and  hasn't                                                               
properly  treated  the  slash  or disposed  of  the  material  it                                                               
becomes a  breeding source for  the insects and then  the insects                                                               
can spread  onto adjoining private  or public lands.   Therefore,                                                               
that would be  the reason why forestry division  staff would need                                                               
access to a piece of property.                                                                                                  
                                                                                                                                
1:29:41 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  TUCK offered  his  understanding  that there  are                                                               
regulations which require  downed trees be treated  with a proper                                                               
destructive  agent and  the  purpose of  this is  to  be able  to                                                               
inspect  whether the  downed  trees have  been  treated with  the                                                               
proper destructive agent.                                                                                                       
                                                                                                                                
MR. MAISCH  replied correct, it  would be  a control method.   He                                                               
explained  there  are numerous  control  methods  for keeping  an                                                               
insect infestation  or potential  infestation under control.   It                                                               
is how the  slash is treated - which could  be chemical treatment                                                               
or  physical  treatment  such as  bucking,  burning,  or  burial.                                                               
There are many ways to do  that and those are addressed under the                                                               
separate Alaska Forest Resources and Practices Act statute.                                                                     
                                                                                                                                
1:30:47 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  DRUMMOND  said  any  organization  authorized  to                                                               
prevent,  control, or  suppress a  fire includes  any one  of the                                                               
volunteer or  paid fire departments  in the  state's communities.                                                               
She  noted the  Anchorage fire  department has  been working  for                                                               
years to remove excess dry  timber on "the hillside" in Anchorage                                                               
because it is  extremely difficult or impossible to  get water to                                                               
that area  given the  size of  the roads.   Therefore,  she said,                                                               
close  attention must  be paid  to  who would  be prevented  from                                                               
getting to the source of a fire or potential source of a fire.                                                                  
                                                                                                                                
1:31:48 PM                                                                                                                    
                                                                                                                                
CO-CHAIR  TARR held  over HB  355  with Amendment  1 pending  for                                                               
further discussion.