Legislature(2005 - 2006)CAPITOL 124
02/02/2005 01:00 PM RESOURCES
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* first hearing in first committee of referral
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HB 107-ATTY FEES: HUNTING/FISHING INTERFERENCE CO-CHAIR RAMRAS 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." 2:29:34 PM JIM POUND, Staff of Representative Ramras, stated that HB 107 was created to address a growing concern that people have been obstructed from hunting, trapping, and wildlife viewing. He said that when an obstruction takes place under current law an offender can be charged in criminal court, and he or she can also be charged in a civil case by an aggrieved person. He stated that juries have awarded as much as $200,000 to the aggrieved, but under the current system, full attorney fees and costs are not necessarily awarded. Mr. Pound opined that this has a "chilling effect" on people taking their cases to a civil court because they might end up paying their own attorney fees. 2:31:13 PM REPRESENTATIVE SEATON asked if there are other circumstances in which all attorney fees are mandated to be paid. MR. POUND responded that if a case goes beyond superior court, there may be a full award of attorney fees for the appeal. REPRESENTATIVE SEATON clarified his question, and pointed out that this is a single statute which overrides Rule 82 of the Alaska Rules of Civil Procedure and wanted to know if it occurred elsewhere in the law. MR. POUND said he is not sure, and he suspects Rule 82 was created because "there was a point in time when we were looking at attorney fees that may have been going beyond the call of what was considered reasonable, and this language may have been actually put into the court rules by the legislature to help cut that down, and I would suspect in certain civil cases that attorney fees may mount to a level of where they might be considered unreasonable. I don't believe in this particular instance of hunting, fishing, or trapping we're going to be dealing with that type of situation." 2:33:31 PM REPRESENTATIVE ELKINS asked if a person was "calling up a moose" and another hunter shot the moose, would that be considered obstruction under this bill. MR. POUND responded that this "has to do with people clearing trap lines" and people walking in front of an animal to protect it from being shot, "that is how the determination of obstruction would be. Same thing with wildlife viewing where people will try to chase off the wildlife..." REPRESENTATIVE ELKINS said it happened in Fairbanks, "the guy went to court and spent a lot of money... He ended up being prosecuted by the state over it because he got a little bit excited, but he won the case against the state." MR. POUND said that that case established a precedent for what is and is not an obstruction. REPRESENTATIVE LEDOUX asked how big of a problem obstruction is. MR. POUND answered that it does not occur often. He said there are people with "radical attitudes" who have decided they are going to manage fish and game, and they are doing it through protest. He said one concern is that a person will get shot. He cited a theoretical example of a tourist spending money to watch wildlife and the tourist is hindered by another person. He said the tourist could go through a criminal process, but "to take it to civil, it's going to cost money out of [his] individual pocket to do so. And it is something that is starting to grow." 2:37:04 PM CO-CHAIR RAMRAS asked if it is fair to say that people practicing civil disobedience in the wild may harm themselves. MR. POUND said "there's always a possibility when you get out into the wild of being harmed." He added that the bill gives the individual who is being obstructed another avenue to gain full compensation from the loss. REPRESENTATIVE CRAWFORD said a few years ago he and a hunting partner were moose hunting and his partner shot a moose, and it walked off and died in the someone's private yard. The landowner would not let them retrieve the moose. Would that be obstruction under this bill? Representative Crawford asked. MR. POUND said he would yield that question to an attorney. 2:39:06 PM LANCE NELSON, Senior Assistant Attorney General, Natural Resources Section, Office of the Attorney General, Anchorage, said he wanted to discuss Section 2 and Section 3 of HB 107 which address two court rule amendments: Rules 79 and 82. He said the Department of Law doesn't believe those sections are necessary for this bill because "Section 1 provisions are a substitute rather than procedural and thus we believe [are] within the independent power of the legislature." He said Rule 82 begins by saying "except as otherwise provided by the law." So it would not require a rule change. He said that the "two thirds vote requirement" of Article IV of the state constitution would not apply. 2:41:51 PM CO-CHAIR RAMRAS asked if Section 2 and Section 3 are unnecessary. MR. NELSON replied in the affirmative. REPRESENTATIVE SEATON asked if getting attorney fees without any reasonable standard appears in other sections of the law. MR. NELSON said there is a "common law provision by the supreme court" to award full cost of attorney fees in cases brought by a public interest litigant who prevails in an action against the state. He said this would "probably" be applied similarly. 2:42:55 PM REPRESENTATIVE SEATON asked if language regarding reasonableness of attorney fees is not applicable for HB 107 as well as for public interest litigation. MR. NELSON answered that trial courts believe they have the authority to review the attorney fees claims of successful litigants and eliminate fees that aren't substantiated. "I would predict that Section 1 provisions would be applied the same way--that completely unreasonable or undocumented or unsubstantiated claims under HB 107" would be questioned and reviewed. But, he added, generally the courts have been very generous. 2:44:46 PM JENNIFER YUHAS, Executive Director, Alaska Outdoor Council, expressed her support for the legislation. She stated that current statute does not guarantee a citizen will be awarded attorney fees, and this bill will bring about a necessary correction to an oversight. She said obstruction cases are rare, but this legislation would be a deterrent "to those wishing to obstruct the lawful use of fish and game resources." She asked for speedy passage of the bill. She added that a representative of the Alaska Wildlife Conservation Association asked her to relate his support of HB 107. 2:46:34 PM CO-CHAIR RAMRAS closed public testimony. REPRESENTATIVE LEDOUX said she supports the bill but wondered if it would be fair to provide attorney fees to whoever is the winner of the lawsuit to protect against frivolous lawsuits. 2:47:59 PM REPRESENTATIVE LEDOUX said she would like to offer that as a conceptual amendment. MR. POUND said "the passage of who receives what is normally handled by the courts." Rule 508 has to do with affirmation of judgment, and he read: "In all cases of affirmance of a judgment or any order or decision of the superior court, costs shall be allowed to the appellee or respondent unless otherwise ordered by the court." Mr. Pound said that the awarding of fees is handled through the existing court rules. REPRESENTATIVE LEDOUX understood that the awarding of fees is normally subject to Rule 82 which also allows for attorney fees for a defendant, and, she said, Rule 82 allows for payment of partial attorney fees--they are not normally actual fees unless the statute would provide for actual attorney fees. MR. POUND stated that the statute would give actual attorney fees and costs, and he added that Rule 82 specifically states that the award is for the prevailing party. REPRESENTATIVE SEATON said Mr. Nelson told the committee that it is not a procedural question, which would be covered by Rule 82. He said the bill is establishing a "substantive provision" that actual full attorney fees would be awarded and only to the person aggrieved of the violation. Representative Seaton agreed with Representative LeDoux because Rule 82 will no longer apply. He said the bill needs to be balanced. REPRESENTATIVE LEDOUX said she read the bill to say that the plaintiff can get full attorney fees, and the defendant would be subject to Rule 82. 2:52:21 PM REPRESENTATIVE SEATON pointed out that HB 107 overrides reasonableness in statute, and takes away the court's latitude to adjust for reasonableness. MR. NELSON agreed that Representative LeDoux is correct that persons who bring a case and are successful in proving they were aggrieved by a violation of AS 16.05.790 would be able to cover full actual attorney fees, and if they were not successful the other person would be limited by Rule 82. CO-CHAIR RAMRAS asked that if a committee substitute deleted Sections 2 and 3, would the defendant still be entitled to Rule 82. MR. NELSON said yes. 2:54:32 PM REPRESENTATIVE LEDOUX asked for clarification of Representative Ramras' question. CO-CHAIR RAMRAS responded that "the A.G. is saying that Section 2 and Section 3 may not be necessary for HB 107. So I think that what we're going to try and do today is pass HB 107 out, we'll review it, and could be that when we get to Judiciary we'll just delete Section 2 and Section 3..." REPRESENTATIVE KAPSNER interjected saying that was not a good idea. "I think that we have a duty...to pass out the best piece of legislation that we can," she said. REPRESENTATIVE LEDOUX asked if Section 2 were eliminated, then would Rule 82 not apply to the defendant. REPRESENTATIVE SEATON said he thought Mr. Nelson was saying that the committee is doing substantive law, and it has no effect on Rule 82. The only reason to eliminate Sections 2 and 3 is to make it consistent with other legislation. REPRESENTATIVE LEDOUX said she understood that, but it doesn't address the concern of the disparity of the plaintiff and defendant's rights. The committee took an at-ease from 2:57 PM to 2:59 PM. 2:58:41 PM REPRESENTATIVE ELKINS asked if HB 107 would apply to commercial fishing. CO-CHAIR RAMRAS said he believes it applies only to hunters, trappers, and wildlife viewers. REPRESENTATIVE KAPSNER pointed out that "fishing" is in the title. REPRESENTATIVE LEDOUX said that since it applies to commercial fishing, she is concerned about the seining industry in which people are "corking each other off," and she said she hates to see one being able to get actual attorney fees and the other not. REPRESENTATIVE CRAWFORD went back to his example and asked if he could get full attorney fees if he won a lawsuit and if the person defending his property rights could only get 30 percent. REPRESENTATIVE KAPSNER asked Mr. Nelson if private property rights supersede this legislation. MR. NELSON answered that he didn't think it applied to people who post their property with no trespassing or no hunting signs. Once a hunter shoots an animal it becomes his or her property which makes it more complicated, he said, and normally someone would be entitled to go on to private land to retrieve his or her property. 3:02:46 PM CO-CHAIR RAMRAS announced that HB 107 would be held over.