Legislature(2005 - 2006)CAPITOL 120
03/02/2005 01:00 PM JUDICIARY
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* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was 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 awarded. 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 activities. MR. POUND, in conclusion, urged the committee's support of HB 107. CHAIR McGUIRE reminded members that CSHB 107(RES) was before the committee. 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 example. 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 consequences. 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 grounds. 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.