03/28/2012 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| Confirmation Hearing(s) || Alaska Police Standards Council | |
| Judicial Council | |
| HB6 | |
| SB168 | |
| HB215 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| += | HB 215 | TELECONFERENCED | |
| += | SB 168 | TELECONFERENCED | |
| += | SB 198 | TELECONFERENCED | |
| += | HB 6 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
March 28, 2012
1:45 p.m.
MEMBERS PRESENT
Senator Hollis French, Chair
Senator Bill Wielechowski, Vice Chair
Senator Joe Paskvan
Senator John Coghill
MEMBERS ABSENT
Senator Lesil McGuire
OTHER LEGISLATORS PRESENT
Representative Mike Hawker
COMMITTEE CALENDAR
BOARD AND COMMISSION CONFIRMATIONS
Police Standards Council
BRAD REICH - Kiana
JAMIE SUNDERLAND - Unalaska
- CONFIRMATIONS ADVANCED
Judicial Council
Kenneth Kreitzer - Juneau
- CONFIRMATION ADVANCED
COMMITTEE SUBSTITUTE FOR HOUSE BILL NO. 215(JUD) AM
"An Act relating to the judicial review of a right-of-way lease
or the development or construction of an oil or gas pipeline on
state land; and relating to the lease of a right-of- way by the
Alaska Housing Finance Corporation for a gas pipeline
transportation corridor."
- HEARD AND HELD
COMMITTEE SUBSTITUTE FOR HOUSE BILL NO. 6(JUD) AM
"An Act authorizing the governor to remove or suspend a member
of the Board of Regents of the University of Alaska for good
cause; and establishing a procedure for the removal or
suspension of a regent."
- HEARD AND HELD
SENATE BILL NO. 168
"An Act relating to geographic cost-of-living salary adjustments
for justices of the supreme court and judges of the superior and
district courts; and providing for an effective date."
- MOVED CSSB 168(JUD) OUT OF COMMITTEE
SENATE BILL NO. 198
"An Act establishing procedures relating to issuance,
suspension, or revocation of certification of police officers by
the police standards council; making certain court service
officers subject to certification by the police standards
council; making confidential certain information that personally
identifies a police officer; relating to requesting or requiring
police officers to submit to lie detector tests; repealing a
provision exempting certain police officers from a prohibition
against requiring certain employees to submit to lie detector
tests; and providing for an effective date."
- SCHEDULED BUT NOT HEARD
PREVIOUS COMMITTEE ACTION
BILL: HB 215
SHORT TITLE: PIPELINE PROJECT: JUDICIAL REVIEW/ROW
SPONSOR(s): REPRESENTATIVE(s) CHENAULT
03/29/11 (H) READ THE FIRST TIME - REFERRALS
03/29/11 (H) JUD
04/06/11 (H) JUD AT 1:00 PM CAPITOL 120
04/06/11 (H) Heard & Held
04/06/11 (H) MINUTE(JUD)
04/08/11 (H) JUD AT 1:00 PM CAPITOL 120
04/08/11 (H) -- Rescheduled to 4/9/11 @ 12:30 pm --
04/09/11 (H) JUD RPT CS(JUD) NT 5DP 2NR
04/09/11 (H) DP: LYNN, KELLER, THOMPSON, PRUITT,
GATTO
04/09/11 (H) NR: GRUENBERG, HOLMES
04/09/11 (H) JUD AT 12:30 AM CAPITOL 120
04/09/11 (H) -- Rescheduled from 4/8/11 --
04/11/11 (H) TRANSMITTED TO (S)
04/11/11 (H) VERSION: CSHB 215(JUD) AM
04/12/11 (S) READ THE FIRST TIME - REFERRALS
04/12/11 (S) JUD, FIN
03/05/12 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
03/05/12 (S) Heard & Held
03/05/12 (S) MINUTE(JUD)
03/28/12 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
BILL: HB 6
SHORT TITLE: REMOVING A REGENT
SPONSOR(s): REPRESENTATIVE(s) GRUENBERG
01/18/11 (H) PREFILE RELEASED 1/7/11
01/18/11 (H) READ THE FIRST TIME - REFERRALS
01/18/11 (H) EDC, JUD
02/11/11 (H) EDC AT 8:00 AM CAPITOL 106
02/11/11 (H) Heard & Held
02/11/11 (H) MINUTE(EDC)
02/21/11 (H) EDC AT 8:00 AM CAPITOL 106
02/21/11 (H) Moved CSHB 6(EDC) Out of Committee
02/21/11 (H) MINUTE(EDC)
02/23/11 (H) EDC RPT CS(EDC) 5DP
02/23/11 (H) DP: P.WILSON, SEATON, KAWASAKI, FEIGE,
DICK
03/21/11 (H) JUD AT 1:00 PM CAPITOL 120
03/21/11 (H) Heard & Held
03/21/11 (H) MINUTE(JUD)
03/23/11 (H) JUD AT 1:00 PM CAPITOL 120
03/23/11 (H) Scheduled But Not Heard
04/04/11 (H) JUD AT 1:00 PM CAPITOL 120
04/04/11 (H) Moved CSHB 6(JUD) Out of Committee
04/04/11 (H) MINUTE(JUD)
04/05/11 (H) JUD RPT CS(JUD) 3DP 1NR 1AM
04/05/11 (H) DP: GRUENBERG, HOLMES, THOMPSON
04/05/11 (H) NR: PRUITT
04/05/11 (H) AM: KELLER
04/11/11 (H) TRANSMITTED TO (S)
04/11/11 (H) VERSION: CSHB 6(JUD) AM
04/12/11 (S) READ THE FIRST TIME - REFERRALS
04/12/11 (S) JUD
03/05/12 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
03/05/12 (S) Heard & Held
03/05/12 (S) MINUTE(JUD)
03/21/12 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
03/21/12 (S) Scheduled But Not Heard
03/28/12 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
BILL: SB 168
SHORT TITLE: GEOGRAPHIC COLA FOR JUDGES
SPONSOR(s): RULES BY REQUEST
01/18/12 (S) READ THE FIRST TIME - REFERRALS
01/18/12 (S) JUD, FIN
01/30/12 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
01/30/12 (S) Heard & Held
01/30/12 (S) MINUTE(JUD)
03/26/12 (S) JUD AT 2:00 PM BELTZ 105 (TSBldg)
03/26/12 (S) Heard & Held
03/26/12 (S) MINUTE(JUD)
03/28/12 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
WITNESS REGISTER
BRAD REICH, Appointee
Alaska Police Standards Council
Kiana, AK
POSITION STATEMENT: Testified as appointee to the Alaska Police
Standards Council.
JAMIE SUNDERLAND, Appointee
Alaska Police Standards Council
Unalaska, AK
POSITION STATEMENT: Testified as appointee to the Alaska Police
Standards Council.
KENNETH KREITZER, Appointee
Judicial Council
Juneau, AK
POSITION STATEMENT: Testified as appointee to the Judicial
Council.
TED MADSEN, Staff
Representative Max Gruenberg
Alaska State Legislature
Juneau, AK
POSITION STATEMENT: Described the proposed changes to HB 6,
version O.A, on behalf of the sponsor.
REPRESENTATIVE MIKE CHENAULT
Alaska State Legislature
Juneau, AK
POSITION STATEMENT: Sponsor of HB 215.
TOM WRIGHT, Staff
Representative Mike Chenault
Alaska State Legislature
Juneau, AK
POSITION STATEMENT: Reviewed HB 215 on behalf of the sponsor.
KEN VASSAR, General Counsel
Alaska Gasline Development Corporation (AGDC)
Anchorage, AK
POSITION STATEMENT: Provided supporting testimony on HB 215.
JOE DUBLER, Vice President and Chief Financial Officer
Alaska Gasline Development Corporation (AGDC)
Anchorage, AK
POSITION STATEMENT: Provided supporting testimony on HB 215.
DAVE HAUGEN, Project Manager
Alaska Gasline Development Corporation (AGDC)
Anchorage, AK
POSITION STATEMENT: Provided supporting testimony on HB 215.
TINA GROVIER, Attorney
Birch Horton Bittner and Cherot
Anchorage, AK
POSITION STATEMENT: Provided information related to HB 215.
JOHN HUTCHINS, Assistant Attorney General
Civil Division
Department of Law (DOL)
Juneau, AK
POSITION STATEMENT: Provided information and answered questions
related to HB 215.
RUTH HAMILTON HEESE, Assistant Attorney General
Civil Division
Department of Law (DOL)
Anchorage, AK
POSITION STATEMENT: Explained the reason for AS 38.35.200(d) in
HB 215 and suggested clarifying language.
ACTION NARRATIVE
1:45:29 PM
CHAIR HOLLIS FRENCH called the Senate Judiciary Standing
Committee meeting to order at 1:45 p.m. Present at the call to
order were Senators Wielechowski, Coghill, Paskvan, and Chair
French.
^CONFIRMATION HEARING(S)
^Alaska Police Standards Council
1:45:45 PM
CHAIR FRENCH announced the first order of business would be the
confirmation hearing of Brad Reich to the Alaska Police
Standards Council. He asked Mr. Reich to tell the committee why
he was interested in serving on the council.
1:46:01 PM
BRAD REICH, Appointee, Alaska Police Standards Council (APSC),
said he was interested in serving on the APSC to promote public
safety. Currently, he was the Mayor of Kiana, a member of the
regional school board, a member of the Alaska Association of
School Boards, and a member of the Kiana Liquor Board.
CHAIR FRENCH asked how long he had served as mayor.
MR. REICH replied this was his third term.
CHAIR FRENCH noted that he was serving on the Northwest Arctic
Borough Public Safety Commission (NABPSC), and asked what it
does.
MR. REICH said NABPSC primarily oversees the borough VPSO
program and develops five-year public safety plans. The council
is also working to get VPOs in the villages.
1:48:38 PM
CHAIR FRENCH asked if he had any bias that would make it
difficult to sit in judgment of police officers accused of
wrongdoing.
MR. REICH said no.
CHAIR FRENCH thanked Mr. Reich for his willingness to serve.
CHAIR FRENCH announced that the next order of business would be
the confirmation hearing of Jamie Sunderland to the Alaska
Police Standards Council. He asked Mr. Sunderland to tell the
committee about his interest in serving on the council.
1:49:35 PM
JAMIE SUNDERLAND, Appointee, Alaska Police Standards Council,
said he had worked for the Unalaska Police Department for 16.5
years, and had served as the chief for the last 4.5 years. He
relayed that he served in the military for 10 years and held a
master's degree in business administration. He said he had
attended council meetings in the past and believed he would be a
valuable asset in holding officers accountable for their
actions.
CHAIR FRENCH reviewed Chief Sunderland's credentials including
10 years in military intelligence, graduation from the FBI
National Academy, and the ability to speak Russian.
CHIEF SUNDERLAND added that he also serves on the Alaska
Emergency Response Commission.
CHAIR FRENCH thanked Chief Sunderland for stepping forward to
serve.
^Judicial Council
CHAIR FRENCH announced the next order of business would be the
confirmation hearing of Kenneth Kreitzer to the Judicial
Council. He asked Mr. Kreitzer to tell the committee why he was
interested in serving on the Judicial Council.
1:52:34 PM
KENNETH KREITZER, Appointee, Judicial Council, said that when he
retired from public safety after 25 years he was looking for
something to do that would be both engaging and important. He
served on the Citizen's Advisory Commission on Federal Areas
(CACFA) for three years and became interested in serving on the
Judicial Council when he became aware of how important it was to
the people of Alaska.
CHAIR FRENCH offered his belief that the Judicial Council was
one of the more important councils to which the Legislature
makes appointments. It has a great deal of influence on who
becomes an Alaska judge. He asked Mr. Kreitzer if he had
attended any council meetings.
MR. KREITZER replied he had attended at least four meetings
since the governor appointed him on August 1. During those
meetings, the council considered applicants for three district
court seats and three superior court seats. He said he found the
work both engaging and interesting.
CHAIR FRENCH asked what would be the most difficult issues a
Judicial Council member would face.
MR. KREITZER responded that it is not an easy task to pick the
"best of the best."
CHAIR FRENCH asked when the council would select a new supreme
court justice.
MR. KREITZER responded that it would happen in June.
CHAIR FRENCH asked if the council had received a list of names
from the Bar poll.
MR. KREITZER confirmed that the council would interview the
candidates from the Bar poll and that the current list had 12
names.
1:55:10 PM
SENATOR WIELECHOWSKI asked if he believed that the way Alaska
appoints its judges was appropriate.
MR. KREITZER answered yes; there was real beauty to the system.
The council selects strictly by merit and the governor can
select from those candidates anyway he or she likes. Initially,
Alaska was one of two states that had an appointment system, and
now 33 states have similar systems.
SENATOR WIELECHOWSKI said some people want to change the process
because they think the governor should have free reign in the
selection. He asked Mr. Kreitzer if he had an opinion one way or
another about how Alaska selects its judges.
MR. KREITZER said he liked the current system, but was open to
suggestions.
SENATOR WIELECHOWSKI asked if he had ever advocated to change
the process for selecting judges or had plans to advocate
changing the process.
MR. KREITZER answered no, and reiterated that he liked the
system and the way the council vets the candidates.
SENATOR WIELECHOWSKI asked how he would define "activist judge"
and if he would reject someone he deemed to be an activist
judge.
MR. KREITZER responded that he would consider a person to be an
activist if he or she went outside the rule of law, went outside
of common sense, tried to push their personal beliefs, or had
trouble being impartial. "They probably wouldn't get my vote and
I can't imagine them getting anybody else's vote on the
council," he said.
SENATOR WIELECHOWSKI asked if he could cite specific examples of
judicial activism that would cause him to reject an applicant
for being a judge.
MR. KREITZER said he hadn't thought about it.
1:58:22 PM
CHAIR FRENCH noted that Mr. Kreitzer earned a Bachelor of Arts
degree from Wright State University and had an Alaskan resume
that included city council member, fisheries deckhand,
correctional officer, airport safety officer, drilling fluids
engineer, professional firefighter, legislative aide, city
treasurer, EMT technician, and PSEA board member. He asked Mr.
Kreitzer if he had formulated a response to Senator
Wielechowski's question about judicial activism.
MR. KREITZER mentioned abortion and said that personal opinions
should not enter in.
SENATOR WIELECHOWSKI asked if he would agree or disagree with
those who say that Roe v. Wade was an activist decision.
MR. KREITZER responded that the questions were putting him on
the spot.
SENATOR WIELECHOWSKI said that was not his intention.
1:59:44 PM
SENATOR COGHILL pointed out that, at one time or another, every
member of the committee had disagreed with a judge's position.
He questioned the relevance of the abortion issue if somebody
was willing to be impartial.
SENATOR WIELECHOWSKI said politics aren't relevant, but he
wanted to understand Mr. Kreitzer's position on judicial
activism since he said he would not vote for an applicant who
might be an activist judge. He asked Mr. Kreitzer if he
considers either the Citizens United decision or the Roe v. Wade
decision as examples of judicial activism.
2:01:11 PM
MR. KREITZER responded that an applicant's point of view or
belief system does not enter into the equation unless he or she
has been vocal and editorialized on a topic. If something like
that came out in a person's interview, the council would talk
about it and come to a consensus about whether the applicant
would be loyal to the rule of law. He reiterated that the role
of the council is to look at merit and loyalty to the rule of
law. He opined that it was inappropriate for the council to
discuss personal opinions.
2:02:33 PM
CHAIR FRENCH asked, in any of the meetings he sat on, if he
disagreed with any of the names the council forwarded to the
governor.
MR. KREITZER replied not all of the applicants were his
favorite, but he was happy with whomever the governor chose.
CHAIR FRENCH asked if there were applicants who he though should
have gone on to the governor, but the council elected not pass
along their names.
MR. KREITZER answered yes, one or two.
CHAIR FRENCH asked if he was alone in that belief.
MR. KREITZER replied he had never been the lone belief.
CHAIR FRENCH thanked Mr. Kreitzer.
2:03:44 PM
SENATOR WIELECHOWSKI moved to forward the names Brad Reich,
Jamie Sunderland and Kenneth Kreitzer to the full body for a
vote in joint session.
CHAIR FRENCH announced that without objection the names would be
forwarded to the full body for consideration.
HB 6-REMOVING A REGENT
2:04:15 PM
CHAIR FRENCH announced the consideration of HB 6 and asked for a
motion to adopt the proposed committee substitute (CS), version
G.
2:04:41 PM
SENATOR PASKVAN moved to adopt Senate CS for CSHB 6, labeled 27-
LS0027\G, as the working document.
CHAIR FRENCH announced that without objection, version G was
before the committee.
2:05:06 PM
TED MADSEN, Staff to Representative Max Gruenberg, explained
that the Board of Regents suggested the following changes to
CSHB 6(JUD)am:
Section 1 - Subsection (a) paragraph (3) states that it is not
clear whether the Board of Regents has the constitutional
authority to suspend or remove a regent. Section 1 also has one
grammatical change.
Section 2 - subsection (a) paragraph (4) makes the suspension
procedure, in the case of a complaint of malfeasance or
nonfeasance in office, more rigorous. Three things are required:
1) a sworn complaint, 2) the governor must investigate the
complaint, and 3) find "probable cause" to proceed further and
suspend the regent. New language in this subsection will
prohibit proceedings based on political differences or the
discretionary performance of a lawful act or a prescribed duty.
For example, a student would not be able to lodge a complaint
and have a regent suspended because he or she disagreed with a
tuition increase.
2:07:01 PM
CHAIR FRENCH asked if this was in response to a March 9 letter
that, in his view, made good points.
MR. MADSEN said yes, and the sponsor worked closely with the
legislative liaison to try to accommodate the concerns.
Section 2 - subsection (a) paragraph (5) requires a formal
allegation or charge by a licensing board to proceed through a
suspension proceeding. This makes the procedure more rigorous.
Section 2 - subsection (d) requires the Office of Administrative
Hearings to conduct the hearings and the administrative law
judge issues the decision. This is a way to insulate the Board
of Regents from political directions from the governor.
Section 2 - subsection (g) paragraph (5) clarifies that a
violation of a professional or occupational licensing statute or
regulation that results in the revocation or suspension of a
professional or occupational license that is related to the
regent's ability to serve, will be grounds for suspension or
removal of a regent.
Section 3 is a new section. It includes removal and suspension
of a regent in the list of hearings conducted by the Office of
Administrative Hearings.
2:09:10 PM
CHAIR FRENCH reviewed the process when a regent commits
wrongdoing: someone files a complaint, the governor finds there
is probable cause, and the trial takes place in from of an
administrative law judge.
MR. MADSEN clarified that the trial takes place in front of the
Office of Administrative Hearings.
SENATOR COGHILL referred to page 4, lines 16-19, and asked if
there was any discretion with regard to violating a licensing
statute or regulation. He mentioned paying a late fee on a
license as opposed to blatantly violating a licensing practice.
MR. MADSEN replied it would have to relate to a regent's fitness
to serve as a regent. He opined that late payment of a fee would
not rise to that occasion.
SENATOR COGHILL asked how serious the violation would have to be
for a regent to be unfit to serve.
MR. MADSEN offered his understanding that if the regent was a
lawyer, for example, the violation would have to be something
like a breach of trust or a crime of dishonesty that would
result in the person losing their license to practice law.
SENATOR COGHILL asked for an explanation of the applicability
section because it would apply to conduct that occurred before
the effective date.
MR. MADSEN said the applicability section seeks to capture
wrongdoing that was under investigation before the effective
date of the Act.
SENATOR COGHILL asked if a regent had ever been dismissed.
MR. MADSEN said no. Several years ago, Mr. Hayes stepped down
but he was not dismissed.
SENATOR COGHILL said he always wonders about a fishing
expedition when a bill applies to conduct that occurred on or
before the effective date.
2:13:50 PM
CHAIR FRENCH agreed that caution was warranted when
administering a penalty for conduct that occurred before the
penalty phase was laid out.
SENATOR COGHILL said he'd like to know if there was a better way
to word the applicability section.
CHAIR FRENCH said he would hold HB 6 in committee to provide
time to discuss the matter with Legislative Legal and the
Department of Law (DOL).
SB 168-GEOGRAPHIC COLA FOR JUDGES
2:15:14 PM
CHAIR FRENCH announced the consideration of SB 168. He stated
that he held the bill in committee to ensure that the members
were comfortable with the changes. He noted that the Finance
Committee was the next committee of referral.
2:15:39 PM
SENATOR WIELECHOWSKI moved to report CS for SB 168, version M,
from committee with individual recommendations and attached
fiscal note(s).
CHAIR FRENCH announced that without objection, CSSB 168(JUD)
moved from the Senate Judiciary Standing Committee.
At ease from 2:15 p.m. to 2:17 p.m.
HB 215-PIPELINE PROJECT: JUDICIAL REVIEW/ROW
2:17:15 PM
CHAIR FRENCH announced the consideration of HB 215. He noted
that the committee received a brief overview of the bill at the
previous hearing and that the Senate committee substitute (CS),
version X, was before the committee. He recognized that Speaker
Chenault and Representative Hawker were present.
2:17:53 PM
REPRESENTATIVE MIKE CHENAULT, sponsor of HB 215, said his staff
would refresh the committee on the provisions in the bill.
2:18:28 PM
TOM WRIGHT, staff to Representative Mike Chenault, reviewed the
bill speaking to the following sponsor statement: [Original
punctuation provided.]
The objective of House Bill 215 is to prohibit the
filing of lawsuits that have the potential to delay
construction of in-state gaslines. The provisions
under House Bill 215 modify current statute and the
provisions only apply to state land rights-of-way.
Claims may be filed only by an applicant, a competing
applicant or a person who has a direct financial
interest affected by the lease of a right-of-way. The
requests for judicial review must be filed within 60
days of the publication of notice for a right-of-way
lease application. Judicial review may only be granted
for claims challenging the validity of the statute or
challenging a denial of rights under the state
constitution. Any claim will be barred unless it is
filed within the 60 day time frame. [That means from
the effective date of this bill since most of the
right-of-way leases on state land have been granted or
are in the process of being granted.] The Department
of Environmental Conservation, under the Clean Water
and Clean Air Acts, is exempted from the provisions
pertaining to judicial review.
All claims are to be filed in Alaska Superior Court
which will have exclusive jurisdiction to determine
the proceeding. The court will not have the
jurisdiction to grant any injunctive relief with the
exception of an issuance of a final judgment.
This legislation is modeled after the Trans-Alaska
Pipeline legislation, 43 USC, Chapter 34, that was
adopted by Congress in 1973 (43 USC, Chapter 43, Sec.
1652 (d).) Similar legislation to House Bill 215 was
passed by the Alaska State Legislature in 1973, Senate
Bill 3, related to the TAPS line.
The bill also allows the Alaska Gasline Development
Authority (AGDC) to move from a common carrier
requirement to a contract carrier option. This change
is necessary to pursue a successful open season and
project financing for an in-state gasline.
CHAIR FRENCH recognized that Ken Vassar with AGDC, Ann Brown
with the Department of Natural Resources (DNR), Daryl Kleppin,
Tina Grovier, Joe Dubler, and Dan Fauske were available to
testify and/or answer questions.
CHAIR FRENCH referred to the October 5, 2011 memorandum from
legislative counsel, Donald Bullock Jr., and asked for an
explanation of "direct financial interest."
MR. WRIGHT deferred the question to an attorney.
2:22:33 PM
KEN VASSAR, General Counsel, Alaska Gasline Development
Corporation (AGDC), said that someone with a "direct financial
interest" would primarily be a competing applicant.
CHAIR FRENCH asked if AGDC would be the applicant.
MR VASSAR explained that Alaska Housing Finance Corporation
(AHFC) previously leased the right-of-way and part of this
legislative effort was to transfer the lease to AGDC.
CHAIR FRENCH asked how much of the right-of-way AHFC had under
lease.
MR VASSAR said all of the right-of-way was currently under lease
to AHFC.
CHAIR FRENCH asked if it was a continuous right-of-way from the
North Slope to Anchorage.
MR VASSAR said that AHFC had all of the rights-of-way that DNR
had authority to lease, but that other owners along the route
were not part of the AHFC lease.
CHAIR FRENCH asked if anyone had a map that showed which parts
of the right-of-way were under lease to AHFC.
2:24:52 PM
MR. WRIGHT said he wasn't aware of a map, but his understanding
was that AHFC had over 300 miles of right-of-way and that an
application had been submitted to the federal government for
federal rights-of-way. He noted that Mr. Dubler might have
additional information.
CHAIR FRENCH asked how much of the pipeline route was federal
right-of-way and how much was state right-of-way.
2:25:35 PM
JOE DUBLER, Vice President and Chief Financial Officer, Alaska
Gasline Development Corporation (AGDC), said there are 437 miles
of state right-of-way, and once AGDC obtains the federal right-
of-way the combination will represent over 90 percent of the
rights-of-way. He suggested that Dave Haugen, the AGDC project
manager, might know the exact number of miles of federal right-
of-way.
CHAIR FRENCH asked Mr. Haugen how many miles of the proposed
pipeline was federal right-of-way.
2:26:06 PM
DAVE HAUGEN, Project Manager, Alaska Gasline Development
Corporation (AGDC), said he would follow up with the exact
number, but it was over 200 miles.
CHAIR FRENCH asked if the proposed Act would affect the federal
rights-of-way in any way.
MR. WRIGHT confirmed that the answer was no.
CHAIR FRENCH asked if the pipeline would have to cross land that
was neither state nor federal.
MR. DUBLER said yes; AGDC would have to negotiate rights-of-way
to cross a variety of lands including Native allotments, private
lands, and mental health trust lands.
CHAIR FRENCH asked if AHFC or AGDC currently held any rights-of-
way on private land.
MR. DUBLER answered no.
CHAIR FRENCH asked where most of the private lands were located.
MR. DUBLER said the bulk is in the Anchorage, Big Lake area but
some is near Fairbanks and Cantwell. He offered to follow up
with a map to show the different rights-of-way.
2:28:06 PM
CHAIR FRENCH asked if HB 215 gives AGDC the right to negotiate
those rights-of-way and try to collect them in one corridor.
MR. DUBLER said no; the bill applies only to state rights-of-
way.
CHAIR FRENCH asked what would happen in the event of a
recalcitrant private landowner along the proposed pipeline
route.
MR. DUBLER responded that AGDC is asking for the right of
eminent domain, so the property would be condemned and taken for
purposes of the gas pipeline. He confirmed that the landowner
would receive fair market value for the condemned property.
2:29:06 PM
MR. WRIGHT highlighted that there was already statutory
authority for gas pipelines to invoke the right of eminent
domain.
CHAIR FRENCH commented that it is a utilitarian government
authority for the greater good. He asked which landowners would
be most affected by the proposed pipeline.
MR. DUBLER said it would be private landowners in the Big Lake
and Willow areas and AGDC expected to begin negotiations soon
with these landowners to obtain rights-of-way.
CHAIR FRENCH asked if, once AGDC connected to the distribution
network in Big Lake, there would be sufficient capacity to move
up to 500 million mcf of gas without constructing more
pipelines.
MR. DUBLER said that was correct; the plan was to enter the
Enstar pipeline system at Beluga, so the pipeline won't enter
the Municipality of Anchorage.
2:31:31 PM
CHAIR FRENCH asked Ms. Grovier who might have a direct financial
interest.
2:31:43 PM
TINA GROVIER, Attorney, Birch Horton Bittner and Cherot, said
the language came from existing statute, and it might be an
adjacent landowner or a non-applicant who wants their comments
on a proceeding to rise to the level of direct financial
interest in order to have standing."
CHAIR FRENCH asked if a competitor might bring a challenge
because they, too, want to build a pipeline.
MS. GROVIER agreed that was one possibility.
CHAIR FRENCH posed a hypothetical situation of a competitor
whose land the proposed pipeline would cross.
MS. GROVIER qualified that it would be an adjacent landowner.
CHAIR FRENCH asked if an Anchorage consumer could challenge the
pipeline.
MS. GROVIER clarified that the bill reflects the same framework
as existing statute, with slight reordering.
CHAIR FRENCH recalled the same debate with AGIA; the Legislature
made sure that any challenges would be brought sooner rather
than later so that a project wouldn't get derailed in the later
stages by a lawsuit. He asked if AGIA adopted a 60-day or 90-day
timeline
MS. GROVIER said she couldn't speak to AGIA, but AS 38.35.200
has a 60-day timeline for someone to raise a challenge.
CHAIR FRENCH reviewed Sec. 5 starting on page 6 and agreed with
Ms. Grovier that it was all new language.
MR. VASSAR said that under the current statutory language AGDC
wouldn't have the background to know whether somebody was
intended to be included, and if it came to a court challenge it
would be difficult to identify who would be able to carry the
burden of demonstrating a direct financial interest. It might
be, but wouldn't have to be, a person who wants to lease the
land for some other type of project and the AGDC project in some
way gets in the way of their ability to lease the land.
CHAIR FRENCH asked if the 60-day timeframe on page 6, lines [23
and 25] refer to a challenge to the constitutionality of this
provision.
MR. WRIGHT said yes.
MS. GROVIER agreed and added that that idea came from the Trans-
Alaska Pipeline Authorization Act (TAPPA) legislation as opposed
to the direct financial interest language in AS 38.35.200(a).
CHAIR FRENCH highlighted that Sec. 38.35.200 had been law since
1973.
2:38:52 PM
SENATOR WIELECHOWSKI offered his understanding that someone
could challenge the constitutionality of a statute at any time.
He asked if he was incorrect.
CHAIR FRENCH recalled that it was done in AGIA.
2:39:34 PM
MR. WRIGHT read the judicial review from AGIA as follows:
A person may not bring a judicial action challenging
the constitutionality of this chapter or the
constitutionality of a license issued under this
chapter unless the action is commenced in a court of
the state of competent jurisdiction within 90 days
after the date that a license is issued.
SENATOR WIELECHOWSKI asked if there was case law on that.
MR. WRIGHT said that John Hutchins from DOL tried and was unable
to find any challenges to TAPS either during or after that
period.
SENATOR COGHILL asked for an explanation of the language in
Section 5 on page 5, lines 23-25.
MR. DUBLER explained that the action refers to the signing of
the lease with the state. All the references are to the state
lease of the right-of-way between AGDC and DNR.
MR. WRIGHT said Mr. Hutchins was prepared to expound on the
answer he gave about challenges.
2:41:38 PM
JOHN HUTCHINS, Assistant Attorney General, Civil Division,
Department of Law (DOL), said the 60-day language came from the
Trans-Alaska Pipeline Authorization Act, but the original model
was probably from the Emergency Price Control Act of 1942. In
Yakus v. United States, the U.S. Supreme Court upheld the 60-day
limit to challenge the constitutionality of the Act or an action
by the Office of Price Administration (OPA). He said he wasn't
aware of an Alaska case.
SENATOR WIELECHOWSKI asked what the fact scenario was.
MR. HUTCHINS summarized that it was a wartime challenge of the
constitutionality of the federal OPA price regulation statutes
that said that a case could only be brought within 60 days of an
action. The U.S. Supreme Court reviewed the case and upheld that
provision of the statute.
CHAIR FRENCH referred to the April 15, 2011 memorandum from
Legislative Counsel, Donald Bullock Jr. that discussed how Moore
v. State might apply to HB 215. He read the following from page
5:
The limitations on bringing a claim under AS
38.35.200(c) are set by law; the equitable remedy of
laches is not applicable.
CHAIR FRENCH explained that the Moore case concerned oil and gas
leases in Kachemak Bay. A provision in that lease barred someone
from bringing a challenge after a certain length of time. On
page 5 of the memo, Mr. Bullock said the court indicated
disfavor of limitations and found that the plaintiffs were "not
guilty of inexcusable delay" and that sufficient prejudice was
established on the record.
MR. HUTCHINS responded that laches is common-law doctrine and it
was his belief that Moore was distinguishing between common law
in statute and the statute of limitations. This is about a
statutory limitation on bringing an action, and the question is
whether the Legislature has the power to impose a time limit to
bring an action. He opined that Yakus and the cases that affirm
the Yakus holding were more relevant than Moore was.
CHAIR FRENCH asked Mr. Hutchins to forward the Yakus citation to
his office.
2:45:43 PM
SENATOR PASKVAN asked what type of constitutional challenges the
bill seeks to limit, and questioned how the Legislature could
validate that it considered specific limitations if they weren't
presented.
MR. HUTCHINS replied the most obvious constitutional challenge
would be an action by the commissioner to deprive someone of a
property interest without due process.
SENATOR PASKVAN assumed that this was about due process
regarding the potential loss of an economic interest as opposed
to a non-economic interest.
MR. HUTCHINS agreed that it primarily deals with things that
could be measured by an economic loss.
SENATOR PASKVAN reiterated that the specific issues related to
economic due process ought to be on the record.
MR. DUBLER highlighted that DNR already issued the lease and
AGDC followed all the statutory due process requirements in
applying for the permit.
CHAIR FRENCH clarified that he was saying that AHFC already had
the right-of-way and that HB 215 would pass it to AGDC.
MR. DUBLER agreed.
MR. HUTCHINS added that [AS 38.35.200(c)] would affect more than
the existing right-of-way decision. It would also affect
permitting decisions that relate to the right-of-way so there is
potential for a constitutional challenge relating to a
permitting decision that's not yet been made.
2:49:31 PM
SENATOR COGHILL asked what a final judgment would be reviewed
Section 5, page 6, lines 28-30:
Notwithstanding AS 22.10.020(c), except in conjunction
with a final judgment on a claim filed under this
subsection, the superior court may not grant
injunctive relief,
MR. HUTCHINS posed a hypothetical example of someone who had a
permit to use part of the land in the right-of-way corridor. The
construction activity and pipeline impaired the ability of that
person to exercise his rights under his land use permit. He
believed that the commissioner did not account for his use of
the land or adequately notice him of the pipeline such that he
could comment so he brought a constitutional challenge. If the
court were to decide in his favor, he could get an injunction
that would reverse whatever the commissioner had done that
affected his interests.
2:51:17 PM
SENATOR PASKVAN asked if the court would be unlikely to grant
injunctive relief if the total remedy was money.
MR. HUTCHINS said yes and that was one reason that provisions
that bar temporary injunctive relief were upheld in the past.
However, there could be circumstances under which a damages
remedy could be held to be inadequate. He cited a hypothetical
example of a stream crossing that required construction that
could not be remediated entirely with money. An injunction might
be barred in such a case.
SENATOR COGHILL summarized his understanding of the
circumstances under which the court would not grant injunctive
relief.
MR. HUTCHINS responded that the point is to prevent legal delays
from delaying the project.
2:53:23 PM
SENATOR WIELECHOWSKI asked if the exact route of the pipeline
was established.
MR. DUBLER explained that AGDC applied for several alternative
routes in the draft EIS process, but the preferred route
minimizes the length of the pipeline and the impact on the
environment. The final EIS, due this summer, will come with a
record of decision and the federal right-of-way.
SENATOR WIELECHOWSKI asked if someone who wants to file a
constitutional challenge within 60 days of the effective date of
this Act potentially would not know the route.
MR. DUBLER clarified that this only applies to the state
portion; DNR already issued that lease and the route is
established.
SENATOR PASKVAN asked how state law compared to federal law for
things such as stream protection.
MR. DUBLER deferred the question to Tina Grovier.
MS. GROVIER stated that the provision in Section 5 models the
Trans-Alaska Pipeline Authorization Act (TAPAA) and her
understanding was that there would not be any comparable federal
statute that would apply to federal land.
CHAIR FRENCH asked if the federal government treats challenges
to federal rights-of-way the same way that AS 38.35.200 does for
TAPS.
MS. GROVIER said no, and clarified that while the federal
government has treated challenges to its rights-of way in this
manner in the past - under TAPPA for example, she did not
believe that there was an example that would apply to the AGDC
pipeline.
SENATOR PASKVAN restated that he was trying to understand the
current system for someone to challenge a federal right-of-way
because of a stream crossing, for example.
2:58:33 PM
MS. GROVIER offered to follow up.
CHAIR FRENCH commented that the state will treat its rights-of-
way in one legal method and it was fair to ask what legal method
the federal government will use for its rights-of-way.
2:58:57 PM
SENATOR COGHILL asked if the U.S. Army Corps of Engineers
(USACE) and the Bureau of Land Management (BLM) would explain
both federal and state rights-of-way to the public in meetings
going forward.
MR. DUBLER responded that the USACE focused on federal rights-
of-way through the draft EIS process, and AGDC already held
public meetings along the proposed route from Barrow to Wasilla.
SENATOR PASKVAN mentioned a conflict last summer on an Interior
waterway, and asked if federal right-of-way laws might preempt
state laws if a federal waterway passed through land in the
state right-of-way.
MR. HUTCHINS explained that the Clean Water Act uses the phrase
"Waters of the United States," and there was some ambiguity as
to what that means. Clearly, it includes navigable waters and
adjacent wetlands, but a waterway in the Interior probably is
not "Waters of the United States" unless it is adjacent to a
river that is a navigable waterway, he said.
SENATOR PASKVAN asked Mr. Hutchins to submit a written
explanation so he could better understand where federal law may
and may not apply.
MR. HUTCHINS agreed.
CHAIR FRENCH asked if the provision in subsection (d) on page 7,
lines 9-13, was necessary because the state was taking primacy
on permits.
MR. HUTCHINS deferred the question to Ruth Heese who was
responsible for the provision.
3:02:32 PM
RUTH HAMILTON HEESE, Assistant Attorney General, Civil Division,
Department of Law (DOL), representing the Department of
Environmental Conservation (DEC), explained that subsection (d)
applies to three clean water and clean air programs that the
U.S. Environmental Protection Agency had approved DEC to
administer. She said that to add clarity, DOL suggested the
sponsor make the following changes to the language in AS
38.35.200(d):
Page 7, line 9, following "decision"
Insert "or authorization"
Page 7, line 10-11, following "under"
Insert "a program approved or delegated" and
Delete "authority delegated to the Department of
Environmental Conservation"
3:05:17 PM
CHAIR FRENCH summarized that appeals of DEC permitting decisions
that relate to the Clean Water Act do not fall under the
restrictions in AS 38.35.200(c).
MS. HEESE clarified that it applies to both the Clean Water Act
and the Clean Air Act.
CHAIR FRENCH observed that land was being restricted.
MR. WRIGHT explained that removing the second reference to DEC
[page 7, line 11] keeps the EPA from taking control from the
state of programs under the Clean Air Act. He said the state has
the ability to administer programs under the Clean Water Act
under the language that Ms. Heese described, and the sponsor
would be happy to make the suggested changes.
CHAIR FRENCH thanked the participants and held HB 215 in
committee.
3:06:58 PM
There being no further business to come before the committee,
Chair French adjourned the Senate Judiciary Standing Committee
meeting at 3:06 p.m.
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