Legislature(2003 - 2004)

03/26/2004 01:10 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
HB 474 - LIABILITY FOR AIRPORTS AND AIRSTRIPS                                                                                 
                                                                                                                                
Number 0247                                                                                                                     
                                                                                                                                
CHAIR McGUIRE  announced that the  final order of  business would                                                               
be  HOUSE BILL  NO.  474,  "An Act  relating  to civil  liability                                                               
associated with aircraft runways, airfields, and landing areas."                                                                
                                                                                                                                
REPRESENTATIVE HOLM, speaking as  the sponsor, noted that members                                                               
have a proposed committee substitute (CS) in their packets.                                                                     
                                                                                                                                
Number 0299                                                                                                                     
                                                                                                                                
CHAIR McGUIRE moved to adopt the  proposed CS for HB 474, Version                                                               
23-LS1745\D, Bullock,  3/23/04, as the  work draft.   There being                                                               
no objection, Version D was before the committee.                                                                               
                                                                                                                                
REPRESENTATIVE  HOLM said  that  HB 474  proposes  to make  minor                                                               
changes to  AS 09.65.093.  It  will remove the word  "natural" so                                                               
that "person" will include  "a corporation, company, partnership,                                                               
firm, association,  organization, business trust, or  society, as                                                               
well as a  natural person", which is currently  the definition of                                                               
"person"  given in  AS  01.10.060(a)(8).   With  regard to  civil                                                               
liability,  the  law  currently  only  protects  individuals  who                                                               
maintain  airstrips without  compensation; HB  474 will  allow "a                                                               
greater  range  of  people  and  organizations  to  provide  this                                                               
service for  free."  Also  included are changes intended  to make                                                               
the statute more  comprehensive and clear, he relayed.   The goal                                                               
is to allow volunteer organizations  and good corporate neighbors                                                               
to provide some services that  might otherwise fall to the state.                                                               
If a company or organization  or individual spends their own time                                                               
and money  to maintain or  construct an airstrip that  others are                                                               
free to land  upon, they should not be sued  for "this kind act,"                                                               
he concluded, noting  that HB 474 is [supported]  by the Aircraft                                                               
Owners and Pilots Association (AOPA).                                                                                           
                                                                                                                                
REPRESENTATIVE GARA asked if proposed  subsection (b) is supposed                                                               
to  apply  to  people  who voluntarily  provide  or  maintain  an                                                               
airfield.                                                                                                                       
                                                                                                                                
REPRESENTATIVE HOLM indicated that that is his intent.                                                                          
                                                                                                                                
REPRESENTATIVE   GARA  remarked,   however,   that  as   written,                                                               
subsection  (b) appears  to apply  to all  airfields, even  those                                                               
that  are "run  for  profit."   He  suggested  adding a  specific                                                               
reference,  in  subsection (b),  to  the  airfields described  in                                                               
subsection (a).                                                                                                                 
                                                                                                                                
REPRESENTATIVE HOLM replied:                                                                                                    
                                                                                                                                
     I  think  the reason  is  ...  that private  or  public                                                                    
     airfields  would   fall  underneath  this   release  of                                                                    
     liability.   And  the reason  being is  that there  are                                                                    
     public  airfields   that  are  maintained   by  private                                                                    
     individuals  without compensation,  and  ... we  didn't                                                                    
     want to  limit the  ability of  somebody to  assist the                                                                    
     state and feel that their liability is increased.                                                                          
                                                                                                                                
REPRESENTATIVE  GARA  said  he   agrees  that  those  individuals                                                               
volunteering  their  services should  not  be  held liable.    He                                                               
opined that such  would be clarified if, on page  1, lines 12-13,                                                               
the words  were changed  to say in  part:  "A  person who  is the                                                               
owner or  operator of  an aircraft  runway, airfield,  or landing                                                               
area described in subsection (a) ...".                                                                                          
                                                                                                                                
REPRESENTATIVE  HOLM said  he  would accept  such  as a  friendly                                                               
amendment to Version D.                                                                                                         
                                                                                                                                
Number 0552                                                                                                                     
                                                                                                                                
REPRESENTATIVE GARA  made a motion  to adopt Amendment 1,  to add                                                               
to  page  1,  line  13,  after  "landing  area"  the  words,  "as                                                               
described  in  subsection  (a)".     There  being  no  objection,                                                               
Amendment 1 was adopted.                                                                                                        
                                                                                                                                
REPRESENTATIVE  GRUENBERG suggested  that the  language currently                                                               
in  proposed  subsection  (b)(1)  would  exclude  a  person  from                                                               
liability  -  even  if  the act  or  omission  constitutes  gross                                                               
negligence, recklessness, or intentional  misconduct - as long as                                                               
the runway is not marked with a large "X."                                                                                      
                                                                                                                                
Number 0706                                                                                                                     
                                                                                                                                
TODD  LARKIN,  Staff to  Representative  Jim  Holm, Alaska  State                                                               
Legislature,   in  response   to  questions   about  a   possible                                                               
duplication  of language  in proposed  subsections  (a) and  (b),                                                               
relayed   that  proposed   subsection   (a)  essentially   covers                                                               
"groomers,"  whereas proposed  subsection (b)  is "an  additional                                                               
consideration for owners who are  already covered under" proposed                                                               
subsection  (a).   He  said that  it is  possible  in Alaska  for                                                               
someone  -  for example,  a  gold  miner  or a  corporation  like                                                               
Alyeska [Pipeline Service Company]  ("Alyeska") - to actually own                                                               
an airstrip  privately and not charge  any fees but be  on public                                                               
land.  Currently,  such persons would be liable  to whoever lands                                                               
on  the  airfields they  maintain  even  though they  receive  no                                                               
compensation.  He went on to say:                                                                                               
                                                                                                                                
     [Proposed  subsection] (b)  ... specifically  speaks to                                                                    
     ... negligence  and recklessness; if you're  that owner                                                                    
     or operator  [and] you're not charging  the fee, that's                                                                    
     the  important part.    And  [say you]  need  to dig  a                                                                    
     utility  ditch across  your airstrip  ..., you  will be                                                                    
     grossly negligent  or reckless  if you  don't put  an X                                                                    
     [on  the strip]  and notify  the FAA  [Federal Aviation                                                                    
     Administration]  that  that  strip  is  closed.    Now,                                                                    
     everybody who wants to land  there who's in trouble can                                                                    
     go ahead and land,  but if they see a big  X or read in                                                                    
     FAA that  you've said  your strip  is closed,  and they                                                                    
     crash,  that  owner  who  dug   a  ditch  across  their                                                                    
     [airstrip is]  ... not going  to be liable:   the strip                                                                    
     was closed - you landed at your own risk.                                                                                  
                                                                                                                                
REPRESENTATIVE  OGG  offered   his  understanding  that  proposed                                                               
subsection  (a)  pertains  to open  airstrips,  whereas  proposed                                                               
subsection (b) pertains to closed airstrips.                                                                                    
                                                                                                                                
Number 0850                                                                                                                     
                                                                                                                                
REPRESENTATIVE   GRUENBERG    disagreed.      He    offered   his                                                               
understanding  that proposed  subsection (b)  applies to  owners,                                                               
and that "the rule is you're  not civilly liable for one of these                                                               
types of  airfields."   He surmised, however,  that "even  if the                                                               
owner was grossly  negligent, the field would have  to marked for                                                               
[he/she] to be liable."                                                                                                         
                                                                                                                                
MR. LARKIN opined that if the  owner closes the field through the                                                               
two methods  listed in paragraphs (1)  and (2), then there  is no                                                               
opportunity for gross negligence of recklessness.                                                                               
                                                                                                                                
REPRESENTATIVE GRUENBERG  asked, "How about  if the ...  field is                                                               
not closed but it is open?"                                                                                                     
                                                                                                                                
MR.  LARKIN  replied, "If  you  have  not received  compensation,                                                               
again,  without  gross  negligence or  recklessness,  you're  not                                                               
liable."                                                                                                                        
                                                                                                                                
REPRESENTATIVE SAMUELS said  he assumes that the  people who work                                                               
on the  runways for  Alyeska Pipeline  Service Company  are paid,                                                               
and thus  do not fall under  the category of not  having received                                                               
compensation.                                                                                                                   
                                                                                                                                
MR. LARKIN said  that in the case of Alyeska  using its employees                                                               
to do  the work,  those employees would  be considered  assets of                                                               
Alyeska,  and thus  would not  be liable  as individuals  because                                                               
Alyeska would be simply using  its assets to improve/maintain its                                                               
airfield.                                                                                                                       
                                                                                                                                
REPRESENTATIVE SAMUELS referred  to the Red Dog  Mine, and asked,                                                               
"If somebody  works for  Cominco [Alaska] and  they go  out there                                                               
and  they  tell you  the  breaking  action  is fine,  and  Alaska                                                               
Airlines slides  off the runway  because the breaking  action was                                                               
nil, is anybody accountable for their actions?"                                                                                 
                                                                                                                                
Number 1060                                                                                                                     
                                                                                                                                
MR.  LARKIN said  he would  defer  the question  of whether  such                                                               
action  constitutes   gross  negligence   to  those   with  legal                                                               
experience.                                                                                                                     
                                                                                                                                
REPRESENTATIVE SAMUELS said:                                                                                                    
                                                                                                                                
     That would be considered  maintaining the runway, but I                                                                    
     don't  think  -- I  assume  that  you're getting  after                                                                    
     little mining strips  here and there, or  [if] some guy                                                                    
     owns  a lodge  and  gets  a bulldozer  and  he plows  a                                                                    
     runway, and  if some guy  happens to land there  and he                                                                    
     flips  over his  [plane] ...  he can't  sue [the  lodge                                                                    
     owner].  I assume that's  what you're trying to get at.                                                                    
     But when  you said Alyeska Pipeline  [Service Company],                                                                    
     if you  look at Coldfoot  and all the pump  stations up                                                                    
     the line, that's a little different story.                                                                                 
                                                                                                                                
REPRESENTATIVE OGG surmised that  "compensation" refers to things                                                               
like landing  fees.   "But if  these folks  had [an]  airport for                                                               
their  own business  and other  people landed  on it  and they're                                                               
just  negligent,  they're  not  liable, but  if  they're  grossly                                                               
negligent,  then  they  are liable,"  he  suggested,  adding  his                                                               
belief that  "the same thing"  applies under  proposed subsection                                                               
(b):   "you're not liable  for just  negligence, but if  you have                                                               
gross  negligence,   you're  liable  even  if   you  marked  [the                                                               
airstrip]."                                                                                                                     
                                                                                                                                
Number 1141                                                                                                                     
                                                                                                                                
TOM GEORGE,  Alaska Regional Representative, Aircraft  Owners and                                                               
Pilots Association  (AOPA), said that  the AOPA's interest  is in                                                               
preserving   a   healthy   aviation   infrastructure,   including                                                               
backcountry  airstrips.   He relayed  that the  AOPA supports  HB
474,  which, he  opined,  broadens the  current statute  limiting                                                               
civil  liability  on  aircraft runways,  airfields,  and  landing                                                               
areas.  The primary goal  of [the proposed statutory changes], he                                                               
suggested,  is to  protect the  backcountry  airstrips that  [the                                                               
AOPA's members] rely on for  access to Alaska's remote locations;                                                               
HB  474  should help  protect  the  companies, corporations,  and                                                               
organizations  that  devote  their time  and  resources,  without                                                               
compensation, to maintaining airstrips across the state.                                                                        
                                                                                                                                
MR. GEORGE  said that currently,  the statute only applies  to an                                                               
individual person, and the AOPA feels  it is necessary to use the                                                               
broader  definition of  person so  that entities  such as  mining                                                               
companies, lodges,  and aviation  associations are included.   He                                                               
offered  that the  other changes  encompassed in  Version D  will                                                               
clarify what activities and  situations "this protection" applies                                                               
to.   The AOPA thinks  HB 474 is  a good step  towards protecting                                                               
airstrips  that provide  access  primarily to  public lands,  and                                                               
that protection from liability should  help the AOPA find support                                                               
for keeping  those airstrips  open and usable  in years  to come.                                                               
In  conclusion,  Mr.  George   thanked  Representative  Holm  for                                                               
sponsoring  the bill,  and  relayed  that he  would  be happy  to                                                               
answer any questions from the committee.                                                                                        
                                                                                                                                
Number 1219                                                                                                                     
                                                                                                                                
REPRESENTATIVE  GARA,  after  noting  that he'd  made  a  mistake                                                               
regarding  Amendment  1, moved  that  the  committee rescind  its                                                               
action in  adopting Amendment 1.   There being no  objection, the                                                               
committee rescinded its action.                                                                                                 
                                                                                                                                
REPRESENTATIVE GARA  asked whether it  is the intent of  the bill                                                               
to extend the  limitation on liability to someone  who operates a                                                               
business and  orders supplies, thereby requiring  that a delivery                                                               
plane  land  on an  airstrip  being  maintained by  the  business                                                               
owner.   In such  a situation,  the delivery  plane would  not be                                                               
paying a landing fee.                                                                                                           
                                                                                                                                
MR. GEORGE suggested  that the issue is whether  the operation of                                                               
the airstrip  is commercial;  in other  words, is  somebody being                                                               
paid,  either  by the  government  or  through landing  fees,  to                                                               
operate the airstrip.  He  noted that there are approximately 260                                                               
airstrips  that   the  Department  of  Transportation   &  Public                                                               
Facilities (DOT&PF) supports,  and those would not  be covered by                                                               
HB 474.   Thus it wouldn't  matter whether the people  landing on                                                               
the  airstrip  are   doing  it  as  private   individuals  or  as                                                               
commercial  operators.    He  pointed  out  that  there  are  FAA                                                               
regulations regarding  what class of  aircraft can use  what kind                                                               
of airport, adding  that these regulations "would  deal with that                                                               
issue."                                                                                                                         
                                                                                                                                
REPRESENTATIVE GARA  asked whether the  intent of the bill  is to                                                               
extend the limitation on liability  to those who run a commercial                                                               
airstrip but don't charge landing  fees; for example, the Red Dog                                                               
Mine airstrip.   "Assuming that they're not  charging any landing                                                               
fees, do  we want to extend  this limitation to an  airstrip that                                                               
knows that  supply planes are going  to come in for  a commercial                                                               
operation," he asked.                                                                                                           
                                                                                                                                
MR. GEORGE replied:                                                                                                             
                                                                                                                                
     I would argue  that we would want to  extend it because                                                                    
     they  are providing  a service  that the  state is  not                                                                    
     having to  pay for.   So  ... limiting  their liability                                                                    
     would hopefully  be an incentive  for them  to continue                                                                    
     to  provide that  service.   And ...  the same  case is                                                                    
     covered with Alyeska  Pipeline [Service Company], where                                                                    
     they're  operating airports  on,  as  I understand  it,                                                                    
     public lands,  but they're totally  paying the  cost of                                                                    
     maintenance and  operation, yet those  are open  to the                                                                    
     public to land  on.  So I think  limiting liability ...                                                                    
     in  a balanced  way  ...  is a  reasonable  way to  ...                                                                    
     [provide]   an  incentive   to   continue  doing   that                                                                    
     maintenance function.                                                                                                      
                                                                                                                                
REPRESENTATIVE  SAMUELS asked:    "What's the  standard that  the                                                               
state follows? ... Is it gross negligence?"                                                                                     
                                                                                                                                
REPRESENTATIVE GARA said it is negligence.                                                                                      
                                                                                                                                
Number 1475                                                                                                                     
                                                                                                                                
REPRESENTATIVE  HOLM,   in  response   to  further   comments  by                                                               
Representative  Samuels,  said  that  the size  or  type  of  the                                                               
business does  not matter;  the intent  of the  bill is  to limit                                                               
liability   for   those    who   [maintain   airstrips]   without                                                               
compensation,  and   thereby  provide   incentive  for   them  to                                                               
continue.   He suggested,  however, that if  a business  makes an                                                               
assertion that an  airstrip is maintained in  a certain condition                                                               
and that is not true, then there might be [a cause of action].                                                                  
                                                                                                                                
REPRESENTATIVE  SAMUELS said  that he  could understand  limiting                                                               
liability   for   those   who  provide   this   service   without                                                               
compensation.   However, companies like Alyeska  Pipeline Service                                                               
Company are  getting paid:   "that's  their job,  is to  plow the                                                               
runway or  make sure the  lights are working  or what ever  it is                                                               
[they're] doing -  they are being compensating."   He offered his                                                               
belief that such a company should  not be liable for any airstrip                                                               
it built  but then abandoned,  but it should  be liable if  it is                                                               
paying somebody to  plow an airstrip or maintain  its lighting or                                                               
approach.                                                                                                                       
                                                                                                                                
REPRESENTATIVE OGG  surmised that  if a  company like  Alyeska is                                                               
maintaining  a runway,  it then  becomes  a "person"  and so  the                                                               
limit on liability  extends to any of its  employees because they                                                               
are a  part of the company.   The compensation being  referred to                                                               
in the bill, he also surmised,  is probably a landing fee, not an                                                               
employee's paycheck.                                                                                                            
                                                                                                                                
Number 1625                                                                                                                     
                                                                                                                                
REPRESENTATIVE  GRUENBERG  said  that  when  considering  whether                                                               
there has been compensation, the  question becomes:  compensation                                                               
for  what?   For  example,  is  it  somebody who  is  compensated                                                               
specifically for maintaining  the runway?  Or is  it somebody who                                                               
is compensated  for maintaining the  facility?  Or is  the entity                                                               
doing the maintaining a profit-making  business?  The question of                                                               
what the  legislature means by  the term,  "without compensation"                                                               
will become the subject of some litigation, he predicted.                                                                       
                                                                                                                                
REPRESENTATIVE  HOLM pointed  out that  the language  on page  1,                                                               
lines 6-7, says  in part:  "who  without compensation constructs,                                                               
maintains, or  repairs an aircraft  runway, airfield,  or landing                                                               
area".                                                                                                                          
                                                                                                                                
REPRESENTATIVE  GRUENBERG  noted,  though,  that  the  bill  also                                                               
refers to the owner of  "an aircraft runway, airfield, or landing                                                               
area", and  surmised that  the target  will be  the owner  of the                                                               
airfield.   Current  law refers  to situations  involving private                                                               
land, but HB 474 could  conceivably refer to situations involving                                                               
any airfield anywhere, he remarked,  and opined that such is much                                                               
broader than would  be good public policy.  The  bill proposes to                                                               
immunize  airfield owners,  and could  conceivably be  considered                                                               
precedent for  immunizing owners of docking  facilities or people                                                               
who maintain private roads, he added.                                                                                           
                                                                                                                                
Number 1769                                                                                                                     
                                                                                                                                
REPRESENTATIVE GARA said  he did not mind  limiting liability for                                                               
those who  do something on  a volunteer basis, and  surmised that                                                               
that is the goal of the bill.   With that in mind, subsection (a)                                                               
is  written fine,  he  remarked,  but coming  up  with the  right                                                               
language  so that  subsection (b)  has the  same effect  could be                                                               
problematic.  He added:                                                                                                         
                                                                                                                                
     I would assume that we're  essentially trying to get at                                                                    
     airfields that  are run by noncommercial  entities, and                                                                    
     for  which  nobody  is receiving  compensation.  ...  I                                                                    
     assume   we  don't   want  to   extend  the   liability                                                                    
     [limitation] to an airfield that  a supply plane has to                                                                    
     use because  they've got a  contract with  the business                                                                    
     that's running  the airfield,  even though  they're not                                                                    
     charged  a landing  fee; I  think  the supplier  should                                                                    
     have  an  expectation  that  that's  a  responsibly-run                                                                    
     airfield.  ... So  maybe we  can  say "a  noncommercial                                                                    
     airfield operated without compensation".                                                                                   
                                                                                                                                
REPRESENTATIVE  GARA asked  Representative Holm  to describe  the                                                               
circumstances that  he'd like HB 474  to apply to and  which ones                                                               
he doesn't want it to apply to.                                                                                                 
                                                                                                                                
REPRESENTATIVE  OGG  asked  whether the  definition  of  "person"                                                               
could   be  interpreted   to  mean   state   agencies  or   state                                                               
corporations.                                                                                                                   
                                                                                                                                
CHAIR   McGUIRE   noted   that   "person"  is   defined   in   AS                                                               
01.10.060(a)(8) as:  "a  corporation, company, partnership, firm,                                                               
association, organization,  business trust,  or society,  as well                                                               
as a natural person".                                                                                                           
                                                                                                                                
REPRESENTATIVE  GRUENBERG offered  his  belief that  none of  the                                                               
members object  to having  that definition  of "person"  apply in                                                               
the bill.   However, the  bill also eliminates the  phrase, "that                                                               
is located on private land".                                                                                                    
                                                                                                                                
REPRESENTATIVES  OGG and  HOLM offered  their understanding  that                                                               
that phrase only pertains to closed airports.                                                                                   
                                                                                                                                
Number 1947                                                                                                                     
                                                                                                                                
MR.  GEORGE -  with regard  to the  phrase, "that  is located  on                                                               
private land", in subsection (b) -  said that part of the problem                                                               
is that  most of  Alaska is still  public land, and  so a  lot of                                                               
backcountry airstrips are operated -  to the extent that they are                                                               
operated at  all -  by miners  and lodge owners,  and so  if they                                                               
didn't do it,  either there wouldn't be access or  there would be                                                               
pressure put on the state to do it.  He went on to say:                                                                         
                                                                                                                                
     The second  part of this  bill is about  extending that                                                                    
     protection  from  liability  in   the  case  where  the                                                                    
     airfield  needs to  by closed,  and showing  how to  go                                                                    
     about doing that  closing.  So I guess I  think that is                                                                    
      a reasonable thing to do and I don't think it takes                                                                       
     the lid off Pandora's box in terms of wildly extending                                                                     
     the coverage provided by the statute.                                                                                      
                                                                                                                                
CHAIR McGUIRE, in response to  questions, highlighted the changes                                                               
proposed by subsection (b) of the bill.                                                                                         
                                                                                                                                
REPRESENTATIVE GARA  offered his belief that  proposed subsection                                                               
(b),  as written,  applies  to both  open  and closed  airfields,                                                               
specifically that everything after "a  person" on page 2, line 1,                                                               
applies to closed  airfields, and everything up  to and including                                                               
"a  person" applies  to open  airfields.   He suggested  that the                                                               
committee should  add language to  the bill that would  limit its                                                               
effect to airfields that are not  part of some sort of commercial                                                               
operation.  Another  alternative, he remarked, would  be to leave                                                               
subsection (b) applying only to  a "natural person", because that                                                               
would  maintain the  current policy  that  a person  who owns  an                                                               
airfield would not  be held liable, but corporations  that own an                                                               
airfield could be held liable.                                                                                                  
                                                                                                                                
CHAIR McGUIRE  relayed that  HB 474  would be  held over  for the                                                               
purpose of allowing the sponsor to address the issues raised.                                                                   
                                                                                                                                
REPRESENTATIVE  HOLM  offered  his  understanding  that  proposed                                                               
subsection (b)  applies strictly to closed  airfields, but agreed                                                               
to look into the issue further.                                                                                                 
                                                                                                                                
REPRESENTATIVES  OGG  and   SAMUELS  agreed  with  Representative                                                               
Holm's interpretation of proposed subsection (b).                                                                               
                                                                                                                                
CHAIR  McGUIRE suggested  that any  forthcoming amendments  be in                                                               
writing.                                                                                                                        
                                                                                                                                
[HB 474 was held over.]                                                                                                         

Document Name Date/Time Subjects