Legislature(2005 - 2006)CAPITOL 124

02/02/2005 01:00 PM RESOURCES


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
*+ HB 76 BIG GAME SERVICES & COMM. SERVICES BD TELECONFERENCED
Moved Out of Committee
*+ HB 107 ATTY FEES: HUNTING/FISHING INTERFERENCE TELECONFERENCED
Heard & Held
Bills Previously Heard/Scheduled
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.                                                                       

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