Legislature(2017 - 2018)BARNES 124

02/28/2018 01:00 PM RESOURCES

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Audio Topic
01:03:10 PM Start
01:04:02 PM Presentation(s): Alaska Minerals Commission
01:56:29 PM HB355
02:36:59 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ Presentation: AK Minerals Commission by: TELECONFERENCED
- Lance Miller
- Bronk Jorgenson
- Rob Retherford
-- Testimony <Invitation Only> --
Heard & Held
-- Testimony <Invitation Only> --
+ Bills Previously Heard/Scheduled TELECONFERENCED
        HB 355-FIRE;FOREST LAND; CRIMES;FIRE PREVENTION                                                                     
1:56:29 PM                                                                                                                    
CO-CHAIR  JOSEPHSON announced  that the  final order  of business                                                               
would be  HOUSE BILL NO.  355, "An Act  relating to the  crime of                                                               
criminally negligent burning; relating  to protection of and fire                                                               
management  on forested  land; relating  to  prohibited acts  and                                                               
penalties  for prohibited  acts on  forested land;  and providing                                                               
for an effective date."                                                                                                         
1:57:12 PM                                                                                                                    
REPRESENTATIVE  DAVID   GUTTENBERG,  Alaska   State  Legislature,                                                               
sponsor  of  HB  355,  paraphrased  from  the  following  sponsor                                                               
statement [original punctuation provided]:                                                                                      
     Most  of   the  current   Division  of   Forestry  fire                                                                    
     prevention laws  were enacted in  1961. HB  355 updates                                                                    
     and  modernizes   the  wildland  fire   prevention  and                                                                    
     enforcement  statutes,   with  the  ultimate   goal  of                                                                    
     reducing the  number of human  caused fires  in Alaska.                                                                    
     This bill  reduces risks to  human life, loss  of homes                                                                    
     and  structures, extensive  property  damage, and  fire                                                                    
     suppression costs.                                                                                                         
     Current burning offenses  are unclassified misdemeanors                                                                    
     that  require  a  mandatory court  appearance  and  are                                                                    
     punishable by a fine of  between $100-$1,000 or 10 days                                                                    
     to  6  months  imprisonment.   The  bill  replaces  the                                                                    
     current   system   with   a   tiered   prevention   and                                                                    
     enforcement  structure,   similar  to  fish   and  game                                                                    
     violations.  Violations  of regulations  adopted  under                                                                    
     the  bill  that  would  be  "bail  schedule"  offenses,                                                                    
     allowing  DOF prevention  officers  to issue  citations                                                                    
     for violations  of these offenses. The  bill also gives                                                                    
     state  fire  prevention  officers more  flexibility  in                                                                    
     responding  to  burning  violations  and  investigating                                                                    
     wildland  fires.  "Knowing"   violations  of  the  bill                                                                    
     provisions  would   be  a  class  A   misdemeanor,  and                                                                    
     resolution would require a mandatory court appearance.                                                                     
     The  bill  also  addresses   enforcement  gaps  in  the                                                                    
     existing   arson  and   criminally  negligent   burning                                                                    
     statutes  in  AS  11.46,  makes  technical  changes  to                                                                    
     clarify the right of state  fire prevention officers to                                                                    
     enter   land   to   investigate   wildland   fire   and                                                                    
     establishes a  misdemeanor offense of  interfering with                                                                    
     this   right  of   access,  and   corrects  potentially                                                                    
     conflicting statutory provisions ..                                                                                        
     Over  the last  15 years,  the length  of the  wildland                                                                    
     fire  season and  amount of  acreage burned  each year-                                                                    
     especially  in   and  near   communities-has  increased                                                                    
     dramatically. The  statutes and regulations  that guide                                                                    
     our prevention and management of  wildland fire need to                                                                    
     keep pace  with these changes  which is why I  hope you                                                                    
     will join me in supporting this bill.                                                                                      
REPRESENTATIVE RAUSCHER  asked how  provisions in the  bill would                                                               
affect access to private land.                                                                                                  
REPRESENTATIVE GUTTENBERG deferred to legal counsel.                                                                            
1:59:53 PM                                                                                                                    
JOHN  "CHRIS" MAISCH,  State Forester  and Director,  Division of                                                               
Forestry  (division),  Department  of  Natural  Resources  (DNR),                                                               
expressed  his  support for  HB  355,  which would  reduce  human                                                               
caused  wildland  fires and  human  risk.   The  bill  modernizes                                                               
existing statute in  two areas:  to allow firefighters  to have a                                                               
tiered approach  to enforcement  when needed,  and to  expand the                                                               
education aspect of  the division's fire prevention  program.  He                                                               
explained Fire Prevention Officers  are firstly firefighters and,                                                               
secondly,  wildland fire  investigators who  determine the  cause                                                               
of, and  responsibility for,  a wildland  fire and  assess fiscal                                                               
recovery -  when appropriate -  through criminal and  civil legal                                                               
proceedings.  Fire Prevention Officers  do not carry guns and are                                                               
trained  to  withdraw when  necessary  and  seek assistance  from                                                               
Alaska State Troopers, Department of  Public Safety.  In response                                                               
to Representative Rauscher,  he said the division  already has in                                                               
statute the  right to  enter land  for the  suppression, control,                                                               
and prevention of  wildland fire, thus the bill  seeks to clarify                                                               
that  the  division  also  has   the  right  to  enter  land  for                                                               
investigative  purposes.   For example,  after a  fire starts  on                                                               
private land, part of the  control and suppression efforts are to                                                               
enter  the land  to  determine  the point  of  origin, which  may                                                               
include following the  path of the fire to other  private land to                                                               
investigate the source  and cause.  Mr. Maisch said  HB 355 would                                                               
clarify "that investigative piece  is included in the terminology                                                               
that we used in the previous statute."                                                                                          
REPRESENTATIVE  RAUSCHER  expressed  his understanding  the  bill                                                               
would mean  private property owners  give up their right  to give                                                               
permission to the division to investigate [on their property].                                                                  
MR. MAISCH  stated AS 41.15.040  provides the division  the right                                                               
to enter  land to prevent,  suppress, or control a  wildland fire                                                               
or  a destructive  agent.   Further, AS  41.15.950 allows  police                                                               
officers,  and  any  DNR  employees who  are  authorized  by  the                                                               
commissioner, to  request a warrant  from an officer or  court of                                                               
competent jurisdiction.   He restated  in an  immediate situation                                                               
during a fire, the division has  the right to enter private land;                                                               
after control of  a fire, the division must request  a warrant to                                                               
2:05:09 PM                                                                                                                    
REPRESENTATIVE RAUSCHER  surmised after a  fire is out,  the bill                                                               
allows access without seeking permission through a court order.                                                                 
MR. MAISCH clarified  after the fire is  controlled, the division                                                               
does not have authority to  enter land without permission, and if                                                               
access were  denied by the  landowner, a search warrant  would be                                                               
necessary.   In further response  to Representative  Rauscher, he                                                               
said  the  foregoing statement  applies  to  current statute  and                                                               
after the  change proposed by  HB 355.   In response  to Co-Chair                                                               
Josephson, he said the clarification  occurs in the bill [on page                                                               
2,  line  14]  in  Section  3, with  the  addition  of  the  word                                                               
REPRESENTATIVE  GUTTENBERG  gave an  example  of  a situation  in                                                               
which  an investigator  was not  present  during a  fire and  was                                                               
denied permission  for access  afterward:  A  warrant or  a court                                                               
order would be necessary.                                                                                                       
REPRESENTATIVE   RAUSCHER  asked   who  currently   completes  an                                                               
MR. MAISCH  said Division  of Forestry  employees are  trained to                                                               
investigate wildland fire origin  and cause; for more complicated                                                               
fires and those involving structures,  investigators are aided by                                                               
the office  of the Alaska  State Fire  Marshal/Director, Division                                                               
of  Fire and  Life Safety,  Department  of Public  Safety.   Fire                                                               
investigators staff each of the division's area offices.                                                                        
REPRESENTATIVE RAUSCHER  restated his question as  to the purpose                                                               
of proposed Section 3.                                                                                                          
MR.  MAISCH further  explained the  purpose is  to clarify  "that                                                               
investigating a  fire's cause  and origin  is also  covered under                                                               
this statute."  He deferred to the Department of Law (DOL).                                                                     
2:10:03 PM                                                                                                                    
ANNE   NELSON,  Senior   Assistant   Attorney  General,   Natural                                                               
Resources  Section, Civil  Division(Anchorage), DOL,  advised the                                                               
proposed  bill  would  not impact  the  constitutional  law  that                                                               
applies to  investigative searches  and privacy  protections, but                                                               
clarifies  the  activities  undertaken  by the  division  in  the                                                               
investigation of a fire, or when responding to an active fire.                                                                  
REPRESENTATIVE RAUSCHER restated his question.                                                                                  
MR. MAISCH further  explained the investigation aspect  - that is                                                               
implied in the  prevention language of the existing  statute - is                                                               
REPRESENTATIVE   BIRCH   expressed   his   understanding   if   a                                                               
firefighter  is  fighting a  fire  on  property and  views  items                                                               
perceived  to be  the cause  of the  fire, the  bill would  allow                                                               
those  items to  be  used in  court  at a  later  date, which  is                                                               
reasonable.    He opined  the  bill  is reasonable  and  provides                                                               
REPRESENTATIVE  LINCOLN questioned  whether the  bill applies  to                                                               
fires that  have been suppressed,  or only when  firefighters are                                                               
actively  fighting a  fire.   He  asked, "but  is  this also  the                                                               
expectation  that once  a fire  is suppressed,  and you're  going                                                               
back to  the scene  to investigate further,  at that  point would                                                               
you need to get the, a prior approval or a warrant ...?"                                                                        
2:13:49 PM                                                                                                                    
MR. MAISCH  answered after a fire  is out, when the  division has                                                               
permission   from  the   landowner,  it   can  proceed   with  an                                                               
investigation; if  not, it would  seek a warrant to  continue the                                                               
investigation.    Mr.  Maisch continued  to  the  most  important                                                               
aspect  of the  bill, which  provides the  division a  three-tier                                                               
enforcement  tool  to  address violations  of  burn  regulations.                                                               
Currently,  the  process  to  deal   with  minor  infractions  is                                                               
cumbersome,  therefore, the  division  typically issues  warnings                                                               
except  for the  most egregious  offenses.   HB 355  provides the                                                               
division with three  tiers of responses:  firstly,  a ticket with                                                               
a  predetermined bail  schedule  for an  infraction; secondly,  a                                                               
class A  misdemeanor offense; thirdly,  B and C  felony offenses.                                                               
In  addition,  the  bill  clarifies  two  types  of  firefighting                                                               
techniques - more  commonly referred to as  burnouts or backburns                                                               
- under the civil immunity statute.                                                                                             
2:16:41 PM                                                                                                                    
CO-CHAIR  JOSEPHSON  asked whether  a  lawsuit  has been  brought                                                               
against the division or against firefighters.                                                                                   
MR.   MAISCH   recalled   there   was   a   lawsuit   challenging                                                               
discretionary immunity  related to the Miller's  Reach Fire [that                                                               
burned near  Houston, from  6/2/96 to 6/15/96].   He  added, "So,                                                               
since that  time we've  never had any  specific challenge  on the                                                               
discretionary immunity  ... unless we do  something that's beyond                                                               
our training  or knowledge base, and  then, of course, we  can be                                                               
held negligent, just like anybody  else."  Returning attention to                                                               
the bill,  he noted  the bill also  seeks to  replace terminology                                                               
that is  no longer in use,  and brings the statute  into a modern                                                               
REPRESENTATIVE GUTTENBERG assured the  committee a property owner                                                               
would  not  lose any  constitutional  rights;  after a  fire,  an                                                               
investigator still needs permission, or  a court order, to access                                                               
[private] property.  He reviewed other aspects of HB 355.                                                                       
CO-CHAIR JOSEPHSON pointed  out AS 41.15.150 -  which imposes one                                                               
to ten years  of imprisonment in the case of  malicious or wanton                                                               
setting of  a fire -  is deleted by the  bill.  He  asked whether                                                               
this sort of misconduct is  still addressed [within provisions of                                                               
HB 355].                                                                                                                        
MR. MAISCH  said yes; that type  of offense would be  raised to a                                                               
felony  or  arson charge,  or  a  misdemeanor, depending  on  the                                                               
gravity  of  the  offense.    In  further  response  to  Co-Chair                                                               
Josephson, he confirmed there is  still a differentiation between                                                               
accidental and wanton/malicious offenses.                                                                                       
REPRESENTATIVE PARISH directed  attention to the bill  on page 2,                                                               
beginning on  line 30  and continuing  to page  3, line  1, which                                                               
read as follows [in part]:                                                                                                      
     Sec.  41.15.060. Permits.  The  commissioner shall,  by                                                                    
     regulation, prescribe the conditions  of and the manner                                                                    
     for obtaining  a permit for  the setting of  fires, use                                                                  
     of burning  devices, and other  activities and  uses of                                                                  
     land that increase fire danger  [.FAILURE TO OBTAIN THE                                                                  
     REQUIRED  PERMIT, OR  VIOLATION OF  A CONDITION  OF THE                                                                    
     PERMIT IS A MISDEMEANOR].                                                                                                  
REPRESENTATIVE PARISH  asked whether fires  in a burn  barrel are                                                               
affected by the foregoing change.                                                                                               
2:21:44 PM                                                                                                                    
MR.  MAISCH said  no;  however, burn  barrels  and other  outdoor                                                               
fires  are required  to have  a  permit during  fire season,  and                                                               
permittees must contact  the division to verify it is  a safe day                                                               
for open burning in their area.                                                                                                 
CO-CHAIR JOSEPHSON noted  failure to get a permit  is currently a                                                               
misdemeanor, and questioned how this is changed by the bill.                                                                    
MR. MAISCH stated currently, one  who is burning without a permit                                                               
would get  a warning, except  for a  repeat offender, who  may be                                                               
issued  a violation  at  the option  of  the prevention  officer.                                                               
After passage  of HB  355, burning  without a  permit would  be a                                                               
minor offense listed on the  bail schedule, and a repeat offender                                                               
could  be issued  a citation.   In  further response  to Co-Chair                                                               
Josephson,  he said  a misdemeanor  would  be issued  for a  more                                                               
serious offense.  He deferred to Ms. Nelson.                                                                                    
CO-CHAIR JOSEPHSON surmised HB 355  reduces a penalty because the                                                               
offense is more manageable through a bail schedule.                                                                             
2:25:08 PM                                                                                                                    
MS.  NELSON  added  violations  of any  of  the  provisions  from                                                               
Section  6  through   new  Section  41.15.140,  are   a  class  A                                                               
misdemeanor or either  a bail schedule offense -  resolved by the                                                               
payment of a fine -  or a mandatory court appearance misdemeanor.                                                               
For  example, Section  6 would  make burning  without a  permit a                                                               
misdemeanor; however,  depending on regulations and  the proposed                                                               
bail  schedule, sentences  could be  resolved by  the payment  of                                                               
bail and would not be criminal in nature.                                                                                       
REPRESENTATIVE  TALERICO suggested  the intent  of changing  from                                                               
violations  to  a  noncriminal bail  schedule  is  so  prevention                                                               
officers can  respond appropriately to  an offense; in  fact, the                                                               
maximum punishment  for a class A  misdemeanor can be 30  days in                                                               
jail and a fine of $25,000.                                                                                                     
MS. NELSON  agreed.  She said  the bail schedule in  the bill has                                                               
an upper limit of $5,000,  and a violation approaching a criminal                                                               
penalty would require  a mandatory court appearance.   Ms. Nelson                                                               
characterized  bail  schedule  offenses  as  the  first  tier  of                                                               
prevention  and   "light  enforcement"   in  response   to  minor                                                               
CO-CHAIR  JOSEPHSON questioned  whether  the  court system  added                                                               
violations of the fire code to the bail schedule.                                                                               
MS.  NELSON  advised  the Alaska  Supreme  Court  needs  specific                                                               
statutory legislative  authority to  establish the  bail schedule                                                               
found in Section 21, subsection (b), of the bill.                                                                               
2:30:20 PM                                                                                                                    
REPRESENTATIVE PARISH  asked whether  tundra would  be considered                                                               
forested land.                                                                                                                  
MR. MAISCH  said the bill  defines forested land as  any burnable                                                               
organic material.  In further  response to Representative Parish,                                                               
he said the definition of  forested land is AS 41.15.170(3) which                                                               
       "forested land" includes all land on which grass,                                                                        
      brush, timber, and other natural vegetative material                                                                      
REPRESENTATIVE  PARISH suggested  that  definition would  include                                                               
farmland, tideland beach grass and seaweed.                                                                                     
MR. MAISCH said correct.                                                                                                        
2:33:45 PM                                                                                                                    
The committee took a brief at-ease.                                                                                             
CO-CHAIR JOSEPHSON set  the deadline for amendments to  HB 355 at                                                               
5:00 p.m. on 3/1/18.                                                                                                            
[HB 355 was held over.]                                                                                                         

Document Name Date/Time Subjects
HB 355 Sectional Analysis 2.21.18.pdf HRES 2/28/2018 1:00:00 PM
HRES 2/28/2018 6:00:00 PM
HRES 3/5/2018 1:00:00 PM
HRES 3/9/2018 1:00:00 PM
HB 355
HB 355 Sponsor Statement 2.21.18.pdf HRES 2/28/2018 1:00:00 PM
HRES 2/28/2018 6:00:00 PM
HRES 3/5/2018 1:00:00 PM
HRES 3/9/2018 1:00:00 PM
HB 355
HB 355 Supporting Document- Expanded One Pager 2.21.18.pdf HRES 2/28/2018 1:00:00 PM
HRES 2/28/2018 6:00:00 PM
HRES 3/5/2018 1:00:00 PM
HRES 3/9/2018 1:00:00 PM
HB 355
HB 355 Ver A 2.21.18.pdf HRES 2/28/2018 1:00:00 PM
HRES 2/28/2018 6:00:00 PM
HRES 3/5/2018 1:00:00 PM
HRES 3/9/2018 1:00:00 PM
HB 355
DNR Fiscal Note, HB 355.pdf HRES 2/28/2018 1:00:00 PM
HRES 2/28/2018 6:00:00 PM
HRES 3/5/2018 1:00:00 PM
HB 355
Law Fiscal Note, HB 355.pdf HRES 2/28/2018 1:00:00 PM
HRES 2/28/2018 6:00:00 PM
HRES 3/5/2018 1:00:00 PM
HRES 3/9/2018 1:00:00 PM
HB 355
Alaska Minerals Commission 2018 Report.pdf HRES 2/28/2018 1:00:00 PM
HRES Alaska Minerals Commission Presentation 2.28.18.pdf HRES 2/28/2018 1:00:00 PM
HB 355 Supporting Document- Alaska Fire Chiefs Letter of Support 2.28.18.pdf HRES 2/28/2018 1:00:00 PM
HRES 2/28/2018 6:00:00 PM
HRES 3/5/2018 1:00:00 PM
HRES 3/9/2018 1:00:00 PM
HB 355