Legislature(2003 - 2004)

03/22/2004 01:10 PM RES

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
HB 297-WILDFIRES AND NATURAL DISASTERS                                                                                        
Number 0037                                                                                                                     
CO-CHAIR  DAHLSTROM announced  that the  first order  of business                                                               
would be  HOUSE BILL NO. 297,  "An Act relating to  wildfires and                                                               
other natural disasters."                                                                                                       
Number 0078                                                                                                                     
BEN MULLIGAN, Staff to Representative  Bill Stoltze, Alaska State                                                               
Legislature,  presented  CSHB  297   on  half  of  Representative                                                               
Stoltze, sponsor.                                                                                                               
Number 0099                                                                                                                     
CO-CHAIR MASEK  moved to adopt CSHB  297, 23-LS1073\H, Luckhaupt,                                                               
3/18/04,  as the  working document.   There  being no  objection,                                                               
CSHB 297, version H, was before the committee.                                                                                  
MR. MULLIGAN  told the members that  this bill came about  due to                                                               
Miller's Reach fire, and then later,  the Lazy Mountain fire.  He                                                               
explained that a lot of people  were forced to evacuate the area.                                                               
Some individuals were  able to regain entry to the  area and were                                                               
able  to personally  save their  homes.   Representative  Stoltze                                                               
introduced this legislation in an  effort to allow individuals to                                                               
either  regain entry  or remain  at their  place of  residence in                                                               
order to save their property.                                                                                                   
Number 0240                                                                                                                     
REPRESENTATIVE GUTTENBERG asked if  Mr. Mulligan could review the                                                               
differences between the CS and the original bill.                                                                               
MR.  MULLIGAN replied  that  one change  addresses  the issue  of                                                               
minors accessing the area.   The change indicates that the person                                                               
gaining reentry or remaining must be an adult, he said.                                                                         
MR. MULLIGAN said another change refers  to (b) on page 2, [lines                                                               
30  and 31,  and  page 3,  lines  1 through  3],  which reads  as                                                               
     (b)  Notwithstanding  another  provision  of  law,  the                                                                    
     state, a municipality, a  fire department, an emergency                                                                    
     medical, rescue, or  emergency services organization or                                                                    
     an employee or volunteer  of the state, a municipality,                                                                    
     a fire department, or an  emergency medical, rescue, or                                                                    
     an emergency  services organization  is not  liable for                                                                    
     property damage or the injury or death ...                                                                                 
MR.  MULLIGAN  explained  that  this  language  was  expanded  to                                                               
include  the  removal of  liability  of  emergency personnel  for                                                               
property damage.                                                                                                                
CO-CHAIR DAHLSTROM  announced for the record  that Representative                                                               
Heinze and Kerttula have joined the meeting.                                                                                    
Number 0365                                                                                                                     
GAIL VOIGTLANDER,  Assistant Attorney General,  Supervisor, Torts                                                               
and Worker's  Compensation Section, Department of  Law, testified                                                               
on  HB  297  and  answered  questions  from  the  members.    She                                                               
acknowledged  that  she  has  not  seen the  CS  which  is  being                                                               
discussed;   however,  if   she   understands  the   presentation                                                               
correctly some of the department's  concerns have been addressed.                                                               
Ms. Voigtlander  explained that  she did  have concerns  with the                                                               
original  bill  where  there  could  be  competing  statutes  and                                                               
children could be  placed at risk.  The CS  addresses that point.                                                               
As she understands it, she said,  the CS only provides for adults                                                               
to remain or  return to an evacuated area.   Ms. Voigtlander said                                                               
if  that  is  the  case   it  removes  any  conflict  with  child                                                               
protective statutes.                                                                                                            
MS.  VOIGTLANDER commented  that another  concern the  department                                                               
had was  with the scope  of immunity  that was being  provided by                                                               
the bill.   It appears that  property damage has been  added into                                                               
the CS so  immunity for both personal injury  and property damage                                                               
are included.                                                                                                                   
Number 0448                                                                                                                     
MS.  VOIGTLANDER  pointed out  that  there  remains a  couple  of                                                               
issues that do not  seem to be addressed by the  CS.  She pointed                                                               
to  the need  for  clarity  on the  scope  of  immunity which  is                                                               
discussed in (b)  [page 2, lines 30  and 31, and page  3, lines 1                                                               
through 3, text previously provided].   Ms. Voigtlander explained                                                               
that this language could be read  to include claims by any person                                                               
or it could be  read to only include claims by  the person who is                                                               
allowed to reenter  or stay in an evacuated area.   When there is                                                               
personal  injury  or property  damages  often  times it  involves                                                               
others interests  as well, she  said.  Ms.  Voigtlander suggested                                                               
that subsection (b)  be tightened up so that no  civil action may                                                               
be filed for injury, death,  or property damage out of provisions                                                               
of the section.                                                                                                                 
MS.  VOIGTLANDER  said  that  another issue  which  needs  to  be                                                               
addressed in subsection (b) is  a concern that if individuals are                                                               
allowed to remain  in or reenter an evacuated area,  there may be                                                               
claims made  by their neighbors  if their neighbors  believe that                                                               
individuals who stay in the area  may do things to their property                                                               
which causes them loss or theft.   She referred to some suggested                                                               
wording  that would  provide  for that  issue  so that  emergency                                                               
providers would also be immunized from third party claims.                                                                      
MS.  VOIGTLANDER  made  a final  suggestion  to  include  broader                                                               
language which  would take care of  the issue of paper  trails in                                                               
order  to defend  tort claims  that might  arise.   She explained                                                               
that as the bill is presently  drafted, if for example someone is                                                               
allowed  to reenter  or to  stay in  an evacuated  area, and  the                                                               
emergency provider  has given that  individual a list  of rights,                                                               
which  is required  by the  bill, it  would also  require that  a                                                               
determination be  made that  the person who  wishes to  remain or                                                               
reenter is  competent to  make that decision  in order  to defend                                                               
against claims  downstream.  Ms.  Voigtlander emphasized  that it                                                               
is not an issue of  whether the emergency personnel are qualified                                                               
to make these  determinations, but that in order to  defend a law                                                               
suit two years downstream, it  is necessary to have the documents                                                               
that would show that the person  was informed of their rights and                                                               
that competency was  determined.  She said it is  important to be                                                               
mindful  that  this bill  is  written  to  address issues  in  an                                                               
emergency situation,  so this poses  some procedural  problems in                                                               
ensuring  that  everything  in  the bill  is  followed  and  then                                                               
Number 0895                                                                                                                     
CO-CHAIR MASEK noted that the fiscal  note is the same for the CS                                                               
the committee adopted  as the working document.   She referred to                                                               
the analysis in  the fiscal note from the Department  of Law that                                                               
says the following:                                                                                                             
     ...expected to have a fiscal impact on the Department                                                                      
     of Law that will arise in the event that an emergency                                                                      
     worker's on-the-spot decision is challenged...                                                                             
CO-CHAIR MASEK asked Ms. Voigtlander to comment on that point.                                                                  
MS.  VOIGTLANDER replied  that  the Department  of  Law would  be                                                               
challenging  lawsuits that  challenge whether  or not  everything                                                               
that was  required under the law  was actually done.   This would                                                               
include issues  of fact rather  than issues  of law, so  it could                                                               
not be summarily  disposed of and could in  all likelihood result                                                               
in jury  trials on these issues.   Since this bill  does not take                                                               
care of third party claims it  is quite possible that there would                                                               
be  tort claims  raised  by  family members  of  someone who  was                                                               
allowed  to remain  or reenter  or by  other property  owners who                                                               
have third party claims.                                                                                                        
Number 1029                                                                                                                     
REPRESENTATIVE GUTTENBERG  commented that  even though  this bill                                                               
deals with  wildfires and  natural disasters, he  said it  is his                                                               
belief  that this  bill should  have a  House Judiciary  Standing                                                               
Committee referral because many of  his concerns deal with issues                                                               
under judiciary purview.                                                                                                        
REPRESENTATIVE GUTTENBERG  pointed out  that individuals  who are                                                               
allowed  to reenter  or remain  in an  evacuated area  are facing                                                               
very  high  stress  levels.     He  said  he  is  concerned  that                                                               
individuals would  be presented with  a list of  conditions under                                                               
which the  individual is  permit to  enter.   What if  the family                                                               
comes back  later and says  the person who  may have died  in the                                                               
fire  was not  rational and  should  never have  been allowed  to                                                               
remain  or reenter.   Representative  Guttenberg  asked what  the                                                               
state's role is in this.                                                                                                        
Number 1110                                                                                                                     
MS. VOIGTLANDER responded that the  emergency evacuation may have                                                               
been  done  by state  agents  or  agencies,  or local  agents  or                                                               
agencies,  or it  could be  done by  coordinated teams  of state,                                                               
federal,  and  local personnel.    She  said that  Representative                                                               
Guttenberg's point  is exactly the  issue that she  was referring                                                               
to in her earlier statement.   If after the fact, someone were to                                                               
challenge whether the determination  was properly made or whether                                                               
the resident  was or  was not competent  to understand  the risks                                                               
he/she  were   putting  themselves  in,  the   state  could  face                                                               
liability, she said.                                                                                                            
MS.  VOIGTLANDER told  the members  that last  session there  was                                                               
legislation passed that included  immunity provisions in Title 41                                                               
that  relate to  wildfires.    There are  sections  in there  for                                                               
reckless conduct or  things of that nature.  She  said that since                                                               
this bill  provides for immunities  there may  be an issue  as to                                                               
whether it  is the  intent of  the legislature  to make  in roads                                                               
into  immunities that  passed last  session related  to wildfires                                                               
and emergency  situations.  The  legal issue that this  raises is                                                               
whether  or not  this  bill  is intended  to  cut  back on  those                                                               
immunities.  Ms.  Voigtlander said that if it is  not intended to                                                               
do so,  but that  the intent  is to allow  residents to  enter or                                                               
remain  in an  evacuated  area,  the way  to  avoid liability  to                                                               
local,  state,  and  federal  governments  would  be  to  provide                                                               
broader language such  as "there may be no claims  arising out of                                                               
this bill".   That way there would be  no incompatibility between                                                               
HB  297 and  the  statutes  that were  passed  last session,  Ms.                                                               
Voigtlander summarized.                                                                                                         
CO-CHAIR DAHLSTROM told the members  that after hearing the other                                                               
testifiers, it  is her intention  to hold  the bill.   There have                                                               
been significant  concerns brought forward both  from the sponsor                                                               
and the testifiers.                                                                                                             
Number 1349                                                                                                                     
REPRESENTATIVE  KERTTULA asked  if Ms.  Voigtlander knows  if any                                                               
other state  has laws similar to  what is being proposed  in this                                                               
MS. VOIGTLANDER replied  that she has not looked at  the issue of                                                               
how other states handle individuals  reentering [or remaining] in                                                               
an evacuated area.                                                                                                              
REPRESENTATIVE  KERTTULA  commented  that   she  thinks  this  is                                                               
Number 1403                                                                                                                     
LIEUTENANT  ALLEN   STOREY,  Director  of  Staff,   Alaska  State                                                               
Troopers, Department of Public Safety  (DPS), testified on HB 297                                                               
and  answered questions  from the  members.   He preferenced  his                                                               
comments by  saying that he  just received a  copy of the  CS and                                                               
has not  had an opportunity  to discuss it with  the commissioner                                                               
of the  DPS, so his testimony  is based upon past  discussions of                                                               
the issues, and  not necessarily in light of the  CS.  Lieutenant                                                               
Storey told  the members that  the lessons  of the Big  Lake fire                                                               
and the  Lazy Mountain fire were  not lost on the  department and                                                               
those lessons that  were learned will help  the department manage                                                               
instances like that in the future.                                                                                              
LIEUTENANT STOREY explained that  the department is in compliance                                                               
with the governor's Administrative Order  170 which was signed in                                                               
January of 1997.   From this order a plan  was put together which                                                               
was primarily spearheaded by the  Department of Natural Resources                                                               
(DNR) with DPS,  local, and other agency  involvement, to outline                                                               
in great detail how to manage  these kinds of incidents.  He said                                                               
that DNR  and DPS  use this  plan now  when dealing  with natural                                                               
disasters and  other events  that are applicable.   The  plan has                                                               
many  of the  same  provisions  that are  in  the proposed  bill,                                                               
Lieutenant  Storey   commented.    The  plan   is  actually  more                                                               
resident-friendly and  provides for  more flexibility,  he added.                                                               
He emphasized that the plan  which already exists is very dynamic                                                               
and has the  input of all the  agencies.  Don Savage,  who at the                                                               
time was a  captain with the Alaska State Troopers  in Palmer and                                                               
is now the  chief of the Wasilla Police Department,  is an expert                                                               
in  the incident  command  system, he  said.   Lieutenant  Storey                                                               
reaffirmed his  belief that the  plan is more  comprehensive than                                                               
the provisions of the bill.                                                                                                     
LIEUTENANT  STOREY clarified  that the  authority to  evacuate an                                                               
area is  very limited.  It  is primarily centered at  the feet of                                                               
firefighters  who  can   order  an  evacuation,  he   said.    He                                                               
summarized  that  DPS  would  be  working  through  the  incident                                                               
command  system.   He reiterated  that the  exiting plan  is more                                                               
user-friendly, has greater flexibility,  and addresses the issues                                                               
that HB 279 is targeting.                                                                                                       
Number 1638                                                                                                                     
REPRESENTATIVE  WOLF referred  to  the Kenai  Lake  fire in  2001                                                               
where  there   was  tremendous   community  support   to  protect                                                               
structures.  There was an  ordered evacuation to take citizens to                                                               
Seward; however,  it is  his understanding  that very  few people                                                               
left.   They remained  behind to protect  their homes,  he added.                                                               
Representative  Wolf  asked  if  it   is  up  to  individuals  to                                                               
determine whether they leave or  not after an evacuation order is                                                               
LIEUTENANT  STOREY replied  that is  a prime  example where  this                                                               
plan was  used.   He said he  understands from  previous hearings                                                               
that  the plan  has been  used  on three  wildfires.   Lieutenant                                                               
Storey  said  the plan  does  not  have the  enforced  evacuation                                                               
provisions in  it, it allows  people to  stay and try  to protect                                                               
their property.   However,  in the public  safety industry  it is                                                               
their  responsibility to  make people  aware of  the dangers  and                                                               
seek voluntary compliance if it is appropriate to do so.                                                                        
REPRESENTATIVE WOLF  commented that the volunteer  support during                                                               
that fire  is the very reason  there is a Trail  Lakes Campground                                                               
on the  Kenai Lake.   A volunteer  firefighter, who did  not have                                                               
his red  card, jumped  on a CAT  and cut a  fire line  around the                                                               
Trail Lakes Campground.  The fact  that he was discovered that he                                                               
was  not certified  about  half  way through  the  process, so  a                                                               
certified  firefighter  jumped on  the  CAT  and rode  with  him,                                                               
Representative Wolf said.                                                                                                       
Number 1790                                                                                                                     
DEAN BROWN, Deputy Director, Division  of Forestry, Department of                                                               
Natural  Resources, testified  on HB  297 and  answered questions                                                               
from  the members.   He  told the  members that  he supports  the                                                               
testimony provided to the committee.   Mr. Brown offered that the                                                               
department  has utilized  and refined  the evacuation  guidelines                                                               
that   were  developed   in   order   to  essentially   implement                                                               
evacuations.    There  is  a working  process  ongoing  with  the                                                               
homeowners' association on Lazy  Mountain, Alaska State Troopers,                                                               
and the Department of Military and Veteran Affairs.                                                                             
Number 1843                                                                                                                     
REPRESENTATIVE  HEINZE  said she  recalls  that  the priority  in                                                               
fighting fires  was saving lives,  first; saving  cabins, second,                                                               
and acreage, third.  Is that correct she asked.                                                                                 
MR. BROWN agreed.                                                                                                               
REPRESENTATIVE  HEINZE posed  a  hypothetical  question where  an                                                               
individual either  remains or reenters  an evacuated area.   Does                                                               
that mean that  firefighting efforts will be shifted  to save the                                                               
person who refuses to leave, she asked.                                                                                         
MR. BROWN commented that is a  good observation.  There have been                                                               
internal discussions  about risking the lives  of firefighters or                                                               
other  support personnel  to save  the lives  of individuals  who                                                               
have gone back into  an area that is known to be  risky.  That is                                                               
a concern  and will be factored  into any decision that  is made,                                                               
he said.                                                                                                                        
REPRESENTATIVE  HEINZE  agreed that  is  a  major concern.    She                                                               
suggested  that  an obstinate  person  or  one who  for  whatever                                                               
reason refuses to leave an area,  can put a firefighter or rescue                                                               
personnel  in  jeopardy  because  they are  charged  with  saving                                                               
lives.   It  also  affects  the strategy  in  fighting the  fire,                                                               
Representative Heinze added.                                                                                                    
MR. BROWN acknowledged  that this is an important  concern.  Much                                                               
depends on the  facts that are known at the  time the decision is                                                               
made.  He emphasized that  [saving] lives is the primary mission,                                                               
then saving property.                                                                                                           
REPRESENTATIVE HEINZE posed a hypothetical  question where a fire                                                               
was threatening Talkeetna.   However, there is one  person who is                                                               
90 degrees  South of there, and  manpower will have to  be pulled                                                               
to protect that  person and possibly endanger other  lives.  What                                                               
if the decision  was made to have greater  security in Talkeetna,                                                               
and the one person  who lives South of there is  lost.  She asked                                                               
what would happen then.                                                                                                         
MR. BROWN suggested  that question be posed to  the Department of                                                               
Law.  The incident commander  makes decisions in many situations,                                                               
and while speculation  is important in preplanning  what might be                                                               
faced, he said he is  not comfortable providing an answer without                                                               
having actual situation.                                                                                                        
Number 2081                                                                                                                     
REPRESENTATIVE  HEINZE  commented  that  this bill  may  put  the                                                               
department in a situation where it cannot get out.                                                                              
MR.  BROWN  replied  that  he  believes  the  comments  that  Ms.                                                               
Voigtlander made  regarding exposure to liability  for individual                                                               
firefighters and local municipalities are good ones.                                                                            
REPRESENTATIVE GUTTENBERG  shared that in  his youth he  fought a                                                               
lot of forest  fires both in urban and rural  settings.  He noted                                                               
that  there  is a  zero  fiscal  note  and questioned  whether  a                                                               
component  would be  added for  liability.   He also  asked if  a                                                               
protocol would be  written for individuals who come up  a road or                                                               
trail and  want a decision on  whether or not he/she  can go into                                                               
an area.  Will there be  a component for training with respect to                                                               
this, he asked.                                                                                                                 
MR. BROWN responded that policy  and procedures are in place, and                                                               
there has already  been training of firefighters.   The liability                                                               
question is  not one  that he  can address, he  said.   Mr. Brown                                                               
told the  members that  it is not  the department's  intention to                                                               
add a fiscal note for firefighter training at the point.                                                                        
Number 2192                                                                                                                     
CO-CHAIR  DAHLSTROM  announced  the  HB   297  will  be  held  in                                                               
[Co-Chair Dahlstrom passed the gavel over to Co-Chair Masek.]                                                                   

Document Name Date/Time Subjects