Legislature(2005 - 2006)HOUSE FINANCE 519

03/15/2005 01:30 PM FINANCE


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
-- Recessed to 5:00 --
HB 19 PESTICIDE & BROADCAST CHEMICALS
Heard & Held
HB 107 ATTY FEES: HUNTING/FISHING INTERFERENCE
Moved CSHB 107(FIN) Out of Committee
Bills Previously Heard/Scheduled
= HB 155 USE CRIMINAL FINES FOR YOUTH COURTS
Moved CSHB 155(JUD) Out of Committee
= SB 98 FAST TRACK SUPPLEMENTAL APPROPS/CBRF
Moved HCS CSSB 98(FIN) Out of Committee
= HB 66 APPROP: MENTAL HEALTH BUDGET
Heard & Held
= HB 67 APPROP: OPERATING BUDGET/LOANS/FUNDS/CBR
Heard & Held
HOUSE BILL NO. 107                                                                                                            
                                                                                                                                
     An Act providing  for the award of full  actual attorney                                                                   
     fees  and  costs  to  a  person  aggrieved  by  unlawful                                                                   
     obstruction  or   hindrance  of  hunting,   fishing,  or                                                                   
     viewing  of fish  or  game; amending  Rules  79 and  82,                                                                   
     Alaska Rules of Civil Procedure;  and amending Rule 508,                                                                   
     Alaska Rules of Appellate Procedure.                                                                                       
                                                                                                                                
JIM POUND,  STAFF, REPRESENTATIVE  JAY RAMRAS, reported  that                                                                   
HB 107 is a change to existing  statute regarding persons who                                                                   
hunt, fish, trap, or view wildlife  in Alaska.  Presently, if                                                                   
any  of those  people are  obstructed  from participating  in                                                                   
that experience, they  can seek relief in court.   The courts                                                                   
are  permitted to  grant  damages for  most  of the  expenses                                                                   
except  reasonable  actual  attorney  fees and  costs.    The                                                                   
legislation  would allow the  judge to  grant full  costs and                                                                   
reasonable and actual attorney fees.                                                                                            
                                                                                                                                
Mr.  Pound continued,  pointing  out  that there  is  growing                                                                   
sentiment across the country that  disturbing wildlife in any                                                                   
manner is unacceptable, however,  hunting, fishing, trapping,                                                                   
and viewing wildlife are considered  an important way of life                                                                   
in  Alaska.   The  individuals or  groups,  who could  hinder                                                                   
wildlife experience,  know that  most people  will not  go to                                                                   
court because of the attorney  fees and costs associated with                                                                   
that type of litigation.                                                                                                        
                                                                                                                                
He added that  Alaskans and visitors should  not be subjected                                                                   
to pay because of interference,  obstruction, or hindrance of                                                                   
that right.   The  legislation allows  for an opportunity  of                                                                   
the prevailing  party to recoup actual costs  associated with                                                                   
hindering that type experience.                                                                                                 
                                                                                                                                
Representative Hawker  asked the basis used  to determine the                                                                   
90% attorney fee  amount.  Mr. Pound responded  that resulted                                                                   
from Representative  Gruenberg, who was concerned  leaving it                                                                   
at 100%.   He thought there could  be more of a  potential of                                                                   
false litigation and filing and requested the change.                                                                           
                                                                                                                                
Representative   Hawker  asked   if   there  was   precedence                                                                   
elsewhere for  the 90% number.    Mr. Pound replied  there is                                                                   
not and  that in  eminent domain  cases, it is  at 100%.   He                                                                   
reiterated that 90% was unique.                                                                                                 
                                                                                                                                
Representative  Hawker  asked if  the sponsor  would  welcome                                                                   
changing  it  back to  100%.    Mr. Pound  replied  that  the                                                                   
sponsor would not object.                                                                                                       
                                                                                                                                
2:11:19 PM                                                                                                                    
                                                                                                                                
Representative Weyhrauch  referenced Subsection  3, regarding                                                                   
a person physically interfering  or tampering with equipment.                                                                   
Mr. Pound commented that language  was inserted because there                                                                   
have  been   situations  where  an  individual   cut  another                                                                   
person's trap line.  That person  was caught and they entered                                                                   
into  the  criminal process.    The  guilty person  was  only                                                                   
charged with criminal mischief.                                                                                                 
                                                                                                                                
Representative  Weyhrauch thought  that was  a "narrow"  lead                                                                   
and proposed other hypothetical  situations.  Mr. Pound noted                                                                   
that other  situations could be  addressed under  language in                                                                   
Section 2.                                                                                                                      
                                                                                                                                
Representative  Weyhrauch  grilled  the  point.    Mr.  Pound                                                                   
advised  that the  courts  had already  interpreted  existing                                                                   
language.                                                                                                                       
                                                                                                                                
2:14:35 PM                                                                                                                    
                                                                                                                                
Representative  Weyhrauch   asked  who  would   be  entitled,                                                                   
outside  of   the  law  enforcement  officers,   to  instruct                                                                   
regarding hunting,  fishing, etc. and asked if  that could be                                                                   
a  property owner  if  someone was  trespassing.   Mr.  Pound                                                                   
noted  that AS  16.05.0790(e)  explains  the lawful  hunting,                                                                   
fishing and trapping practices  on private land given consent                                                                   
of the owner.                                                                                                                   
                                                                                                                                
Representative  Weyhrauch  asked  if the  90%  payment  would                                                                   
require a  2/3 vote because of  the direct rule change.   Mr.                                                                   
Pound said yes.                                                                                                                 
                                                                                                                                
Vice-Chair  Stoltze  inquired if  those  types  of cases  are                                                                   
difficult   to  prove.     Mr.  Pound   clarified  that   the                                                                   
legislation only deals with being  out in the field or on the                                                                   
water.                                                                                                                          
                                                                                                                                
2:16:34 PM                                                                                                                    
                                                                                                                                
Vice-Chair Stoltze pointed out  a letter in the file from the                                                                   
National  Rifle Association  (NRA).   Mr.  Pound stated  that                                                                   
there would be testimony from the Alaska Outdoor Council.                                                                       
                                                                                                                                
Representative Weyhrauch asked  if the legislation would only                                                                   
apply to "wild" fish and game.  Mr. Pound said yes.                                                                             
                                                                                                                                
2:17:16 PM                                                                                                                    
                                                                                                                                
JENNIFER YUHAS,   (TESTIFIED  VIA TELECONFERENCE),  EXECUTIVE                                                                   
DIRECTOR, ALASKA  OUTDOOR COUNCIL, ANCHORAGE,  voiced support                                                                   
for  HB 107.    Current statute  does  not  guarantee that  a                                                                   
citizen  can   be  awarded   attorney  fees  for   litigating                                                                   
incidences  of obstruction  abuse  from  hunting, fishing  or                                                                   
trapping.   The  changes in  the  proposed legislation  would                                                                   
bring necessary corrections to the existing statute.                                                                            
                                                                                                                                
2:18:32 PM                                                                                                                    
                                                                                                                                
Representative  Weyhrauch asked  why  commercial fishing  had                                                                   
not been included to Section 3,  Page 2.  Mr. Pound responded                                                                   
that  in  Section 3,  Line  18,  it  had  been added  to  the                                                                   
previous version of the bill.                                                                                                   
                                                                                                                                
2:20:03 PM                                                                                                                    
                                                                                                                                
Representative  Weyhrauch commented  that  falling under  the                                                                   
exclusion  of  that  sentence,  a person  would  have  to  be                                                                   
actively  engaged  in  commercial  fishing  in  order  to  be                                                                   
exempt.   They could be traveling  to, from or be  on fishing                                                                   
grounds to be  exempt.  Mr. Pound understood  that they would                                                                   
have to be actively fishing.                                                                                                    
                                                                                                                                
2:20:56 PM                                                                                                                    
                                                                                                                                
Representative  Hawker MOVED  to  ADOPT conceptual  Amendment                                                                   
#1, changing  the two  instances of 90%  to full  recovery of                                                                   
legal fees  at 100%.  That change  would be on Page  2, Lines                                                                   
18 & 19, and Page 2, Line 24, deleting "90% of".                                                                                
                                                                                                                                
Representative   Weyhrauch  OBJECTED   for  the  purpose   of                                                                   
discussion.    Representative  Hawker repeated  the  proposed                                                                   
change.  Representative Weyrauch  understood that there would                                                                   
continue to  be judicial  discretion.  Representative  Hawker                                                                   
thought so.                                                                                                                     
                                                                                                                                
Representative Weyhrauch WITHDREW his OBJECTION.                                                                                
                                                                                                                                
Representative Hawker  noted that his staff  was distributing                                                                   
the written version of Amendment #1.  (Copy on File).                                                                           
                                                                                                                                
Representative  Weyhrauch thought  that  the proposed  change                                                                   
would  return  the legislation  back  to the  House  Resource                                                                   
Committee version.  He questioned  why the change was needed.                                                                   
                                                                                                                                
Representative Hawker requested  that Mr. Pound respond.  Mr.                                                                   
Pound  explained  that the  indirect  court  rule change  was                                                                   
still a  discussion of  argument in the  courts and  that the                                                                   
Supreme Court has not yet made a decision.                                                                                      
                                                                                                                                
2:26:01 PM                                                                                                                    
                                                                                                                                
Representative Hawker WITHDREW conceptual Amendment #1.                                                                         
                                                                                                                                
Representative  Hawker MOVED to  ADOPT written Amendment  #1.                                                                   
(Copy on File).                                                                                                                 
                                                                                                                                
Representative  Weyhrauch  OBJECTED.    He commented  on  the                                                                   
proposed language regarding suing  for the damages because of                                                                   
the action.   If the case goes  to trail, all costs  would be                                                                   
charged  plus  the  reasonable  attorney  fees.    Mr.  Pound                                                                   
acknowledged  that  was correct.    Representative  Weyhrauch                                                                   
commented on "full and actual" attorney fees.                                                                                   
                                                                                                                                
2:28:49 PM                                                                                                                    
                                                                                                                                
Representative  Croft   referenced  Section   D(2)  regarding                                                                   
prosecution.  He asked the instance of "lawfully".                                                                              
                                                                                                                                
Representative  Hawker inquired if  that was relative  to the                                                                   
Amendment #1.  Representative Croft responded it was not.                                                                       
                                                                                                                                
Representative Weyrauch  WITHDREW his OBJECTION  to Amendment                                                                   
#1.   There  being  NO further  OBJECTION,  Amendment #1  was                                                                   
adopted.                                                                                                                        
                                                                                                                                
Mr. Pound responded to the question  by Representative Croft.                                                                   
He  noted  that  "lawful" would  address  combat  fishing  on                                                                   
rivers.    Representative  Weyhrauch noted  an  example  that                                                                   
occurred fishing  on the  Kenai River.   Mr. Pound  responded                                                                   
that situation would be classified  as "lawfully" interfering                                                                   
and would be listed as intentional vandalism.                                                                                   
                                                                                                                                
Discussion followed between Representative  Weyhrauch and Mr.                                                                   
Pound regarding the example.                                                                                                    
                                                                                                                                
2:32:15 PM                                                                                                                    
                                                                                                                                
Representative  Weyhrauch interjected  that  with passage  of                                                                   
the bill; both  sport and commercial fishermen  would have to                                                                   
take a lawyer into account while fishing.                                                                                       
                                                                                                                                
Representative Foster MOVED to  report CS HB 107 (FIN) out of                                                                   
Committee  with  individual  recommendations   and  with  the                                                                   
accompanying fiscal notes.  There  being NO OBJECTION, it was                                                                   
so ordered.                                                                                                                     
                                                                                                                                
CS  HB 107  (FIN)  was reported  out  of Committee  with  "no                                                                   
recommendation" and  with zero note  #1 by the  Department of                                                                   
Fish & Game and zero note #3 by the Department of Law.                                                                          
                                                                                                                                
2:32:58 PM                                                                                                                    
                                                                                                                                

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