Legislature(2005 - 2006)CAPITOL 120

03/02/2005 01:00 PM JUDICIARY

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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
Moved CSHB 155(JUD) Out of Committee
Moved CSHB 132(JUD) Out of Committee
Heard & Held
Heard & Held
Bills Previously Heard/Scheduled
HB 107 - ATTY FEES: HUNTING/FISHING INTERFERENCE                                                                              
1:40:26 PM                                                                                                                    
CHAIR McGUIRE announced that the  next order of business would be                                                               
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."  [Before the committee was CSHB 107(RES).]                                                                          
JIM  POUND,  Staff to  Representative  Jay  Ramras, Alaska  State                                                               
Legislature,   sponsor,   presented   HB   107   on   behalf   of                                                               
Representative Ramras.  He said:                                                                                                
     [House Bill 107] is based  on language, in part written                                                                    
     years   ago,  about   a   growing   concern  that   the                                                                    
     legislature had  of individuals and  groups obstructing                                                                    
     hunting, trapping,  and even  wildlife viewing  in this                                                                    
     state.   When an  obstruction takes place,  there often                                                                    
     is  a criminal  charge  filed  against the  individual.                                                                    
     [He/she]  can also  be sued  by  the aggrieved  person;                                                                    
     juries  have awarded  as much  as $200,000  in some  of                                                                    
     these cases.  But under  the current system and current                                                                    
     statute,  reasonable attorney  fees and  costs are  not                                                                    
     This  has  a  chilling   effect,  as  those  costs  are                                                                    
     directly passed  onto the  plaintiff in  the case.   An                                                                    
     individual has  to consider, before  they go  to court,                                                                    
     how  much it's  going to  cost to  pursue a  civil case                                                                    
     even if  they prevail;  HB 107  corrects this  error in                                                                    
     the law.   It allows the court  to authorize reasonable                                                                    
     and actual  attorney fees and  costs to  the prevailing                                                                    
     party.   It sends  a clear message  to those  who would                                                                    
     attempt to  prevent people from enjoying  their outdoor                                                                    
     activities.  It also  tells Alaska's hunters, trappers,                                                                    
     and  wildlife viewers  that we  support  them in  their                                                                    
MR. POUND,  in conclusion,  urged the  committee's support  of HB
CHAIR McGUIRE reminded members that  CSHB 107(RES) was before the                                                               
1:42:25 PM                                                                                                                    
REPRESENTATIVE GARA raised the  issue of unintended consequences.                                                               
Using the example  of those who fish in combat  fishing areas, he                                                               
indicated that he wouldn't want to  see a lot of lawsuits "coming                                                               
out of a weekend at the Russian River."                                                                                         
MR. POUND offered his understanding  that the language on page 2,                                                               
line 8,  should address  that concern  because it  specifies that                                                               
"lawful competitive practices" are exempted from the bill.                                                                      
REPRESENTATIVE GARA  argued that he  still has a  concern because                                                               
some things that occur are  not necessarily part of a competitive                                                               
process; instead,  they occur because  somebody is "just  being a                                                               
jerk  - they're  not trying  to  compete with  you, they're  just                                                               
cluelessly walking  over your line  or something like that."   He                                                               
said he  would like to see  this issue addressed before  the bill                                                               
gets to  the house floor.   He noted that trout  fisherman try to                                                               
keep a  low profile - they  try not to splash  through the water,                                                               
they crouch a little  bit so as not to scare the  fish away - and                                                               
so  according to  the  wording of  the bill,  a  person would  be                                                               
interfering with a trout fisherman  if he/she were walking around                                                               
splashing through the  water.  Does the language in  the bill now                                                               
say that  anybody who gets  hypersensitive about  "stream ethics"                                                               
can sue for full attorney fees?                                                                                                 
MR.  POUND   opined,  "The  fact   that  we're  dealing   with  a                                                               
'prevailing  party'  clause  ... would  eliminate  the  frivolous                                                               
lawsuits of that nature."  He  mentioned that much of the wording                                                               
in the bill  is part of current statute and  that HB 107 proposes                                                               
to  add  the aforementioned  clause  [to  AS 16.05.791(b)].    He                                                               
offered his  belief that  this would not  increase the  number of                                                               
lawsuits, and  that the prevailing party  [clause] was originally                                                               
designed to address concerns pertaining to commercial fishing.                                                                  
REPRESENTATIVE GARA,  in response  to a question,  clarified that                                                               
the language which causes him concern  is located in Section 1 of                                                               
the  bill.     That  language   is  part  of  existing   law,  AS                                                               
16.05.790(a), and says in part:                                                                                                 
       a person may not intentionally obstruct or hinder                                                                        
     another person's lawful hunting, fishing, trapping, or                                                                     
     viewing of fish or game by                                                                                                 
         (1)  placing one's self in a location in which                                                                         
     human presence may alter the                                                                                               
             (A)  behavior of the fish or game that                                                                             
     another person is attempting to take or view                                                                               
REPRESENTATIVE  GARA  remarked  that   scaring  fish  away  could                                                               
qualify  as behavior  addressed in  the aforementioned  paragraph                                                               
(1)(A);   this,   along  with   the   proposed   changes  to   AS                                                               
16.05.791(b), would  make it financially  rewarding for  a person                                                               
to sue someone for scaring fish  away because the person would be                                                               
able to get back  all of his/her attorney fees.   "It seems to me                                                               
that an unintended  consequence would be to  make annoyances that                                                               
people normally deal with now  ... profitable to complain about,"                                                               
he added.                                                                                                                       
1:48:43 PM                                                                                                                    
MR.  POUND  offered instead  that  the  plaintiff will  still  be                                                               
losing time and  various other things and thus would  not find it                                                               
worthwhile to pursue such a case.                                                                                               
CHAIR  McGUIRE acknowledged  Representative  Gara's concern,  and                                                               
suggested that the dialog on this issue continue.                                                                               
REPRESENTATIVE GARA remarked that  regardless of whether a person                                                               
would  find it  worthwhile to  pursue  a lawsuit,  the bill  does                                                               
allow a person to get back  full attorney fees if he/she brings a                                                               
lawsuit  because someone  scared his/her  fish away.   "Fishermen                                                               
are pretty  serious about what they  do, and I can  tell you that                                                               
people ...,  when they deal  with ...  bad behavior at  a fishing                                                               
stream,  it ruins  their day,  and they  would sue  somebody over                                                               
it," he predicted.   He asked that the  sponsor consider changing                                                               
the bill  so that  it allows  for the recovery  of 80  percent of                                                               
attorney fees.  Such a  change, he opined, would still accomplish                                                               
most of  the bill's  goals, to punish  someone for  bad behavior,                                                               
without making  it lucrative enough  for someone who's had  a bad                                                               
day [fishing] to go out and file a lawsuit.                                                                                     
MR. POUND said  [the sponsor] wouldn't have an  objection to such                                                               
a  change.    He  pointed  out, however,  that  the  language  in                                                               
Sections 3  and 4 has  become a more  important part of  the bill                                                               
because  the state  has actually  lost money  by not  having that                                                               
language in statute; such language  would have eliminated some of                                                               
the lawsuits  that Alaska State Troopers  and wildlife protection                                                               
officers have been faced with.                                                                                                  
REPRESENTATIVE GARA asked what the motivation for the bill is.                                                                  
MR.  POUND   said  that  most   of  the  motivation   stems  from                                                               
circumstances involving  trapping [and  hunting]:  trap  lines up                                                               
in  the  Interior  have  been  cut,  injured  animals  have  been                                                               
released from traps, and people have  come between a hunter and a                                                               
moose or caribou in order to keep the hunter from shooting it.                                                                  
1:52:04 PM                                                                                                                    
REPRESENTATIVE COGHILL  surmised that  the increase  in multi-use                                                               
activities on  trails has created tension  between different user                                                               
groups.   For example,  some of the  activities now  occurring on                                                               
trapping trails can spring traps,  and some of the activities now                                                               
occurring on ski  trails can damage snow machines.   He mentioned                                                               
he has a  concern regarding how to quantify  or define physically                                                               
interfering or tampering with a  person's viewing experience, for                                                               
CHAIR McGUIRE suggested  that the committee ought  to ensure that                                                               
the  behavior  to  which  the   bill  can  apply  is  intentional                                                               
behavior,  and  although  the bill  does  specify  "intentionally                                                               
obstruct  or  hinder",  it  goes  on to  also  specify  what  the                                                               
behavior actually  is; she  noted that this  language is  part of                                                               
existing law, and that in order  for the bill to apply, the state                                                               
will have to prove that someone did something intentionally.                                                                    
REPRESENTATIVE  COGHILL noted  that  some  people might  consider                                                               
viewing trees more  pleasurable than viewing the  skyline, and so                                                               
if one  brushes a  trail, that could  "mess up  somebody's view."                                                               
He  offered  an  example  wherein   a  person  building  a  house                                                               
obstructed  the view  that  another  person had  paid  for -  the                                                               
courts required  the person  obstructing the  view to  remove the                                                               
top story of his  house.  "As we get into  more and more multiple                                                               
uses  in Alaska,  we better  be really  clear [about]  what we're                                                               
talking about," he concluded.                                                                                                   
1:56:10 PM                                                                                                                    
REPRESENTATIVE  GRUENBERG mentioned  that his  wife is  active in                                                               
creating dog parks, and he has  concern that the creation of such                                                               
could run  afoul of HB 107  as currently written even  if that is                                                               
not the intent.                                                                                                                 
MR. POUND  pointed out  that the sponsor  is just  using existing                                                               
law as the  vehicle for the proposed changes,  which are intended                                                               
to address two actual cases.   One proposed change is designed to                                                               
give  the police  more authority  and  ensure that  they are  not                                                               
inadvertently the subject of a lawsuit.                                                                                         
REPRESENTATIVE    GRUENBERG    cautioned    against    unintended                                                               
1:58:05 PM                                                                                                                    
REPRESENTATIVE GARA  said the bill appears  to address situations                                                               
in which rafters or those in  motor boats travel through water in                                                               
which  someone is  fishing  for  trout, for  example;  this is  a                                                               
behavior that can anger those that  are fishing.  Under the bill,                                                               
lawsuits engendered by  such cases could result  in the plaintiff                                                               
being awarded full attorney fees.                                                                                               
MR.  POUND  remarked that  such  lawsuits  could be  filed  under                                                               
existing law.                                                                                                                   
REPRESENTATIVE GARA countered that under  the bill it will be for                                                               
"real money."                                                                                                                   
REPRESENTATIVE GRUENBERG asked whether it  is the intent to "have                                                               
actual costs and  [attorney] fees on appeal?"  He  opined that if                                                               
that is  not the intent, then  the bill would not  alter Rule 508                                                               
of the Alaska Rules of Appellate Procedure.                                                                                     
REPRESENTATIVE  COGHILL  mentioned  that   the  bill  appears  to                                                               
include licensed  activities, except for [wildlife]  viewing, and                                                               
so he is wondering  if "that has any snags to  it."  He suggested                                                               
that  there should  be some  mechanism  in the  bill to  quantify                                                               
[obstructing and hindering].                                                                                                    
CHAIR  McGUIRE remarked  that existing  law, as  detailed in  the                                                               
bill, appears to raise concerns.   she suggested that the sponsor                                                               
and members work together to  come up with a committee substitute                                                               
(CS) or amendments that will address those concerns.                                                                            
2:03:09 PM                                                                                                                    
REPRESENTATIVE GRUENBERG  opined that  the language  currently in                                                               
existing  AS  16.05.790(d)  would  seem to  already  include  law                                                               
enforcement  officers.   If that  is  the case,  why include  the                                                               
change proposed by Section 2?                                                                                                   
MR.  POUND said  that although  it  might seem  that current  law                                                               
already addresses situations  involving law enforcement officers,                                                               
the court has ruled otherwise in  a recent case where a "fish and                                                               
wildlife" helicopter  was flying too low  over commercial fishing                                                               
REPRESENTATIVE GRUENBERG said he'd like  to see whether that case                                                               
has  been appealed.   Just  because  a judge  makes an  erroneous                                                               
decision, it  doesn't mean  that the  law has  to be  changed, he                                                               
remarked, noting that the such cases can be appealed.                                                                           
MR. POUND offered his understanding that "they settled."                                                                        
REPRESENTATIVE  GRUENBERG  suggested  that the  committee  get  a                                                               
legal opinion on whether current law does cover such situations.                                                                
CHAIR McGUIRE indicated that HB 107 would be held over.                                                                         

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