Legislature(2001 - 2002)
04/08/2002 02:05 PM Senate JUD
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
SB 204-WILDFIRES AND NATURAL DISASTERS
MS. VICKI KINDSETH, Staff to Senator Lyda Green, sponsor of SB
204, said SB 204 addressed the concerns of residents during the
emergency management of wild fires and other natural disasters.
She said SB 204 would give decision-making powers to emergency
personnel based on information at hand to allow residents wanting
to enter an area under emergency management to do so. She said
the residents would be informed of the risks and would enter at
their own risk with the responsibility of injury or death taken
by the resident. She said the provisions for the decision-making
would be authorized by the guidelines adopted by each community.
MS. KINDSETH said the crime of unsworn falsification would be
amended to include anyone making a false statement of residency
in order to enter an area under emergency management. Immunity
from liability would be provided for state and municipal
governments, emergency service workers and organizations for the
injury or death of a person entering an area under emergency
management.
SENATOR COWDERY said people went to the Big Lake area during the
Miller's Reach fire because they were concerned about family
members. He asked if SB 204 would still allow them to be in the
area.
MS. KINDSETH said the emergency guidelines in the packets
addressed some of the questions Senator Cowdery raised. She
thought that decision would be made at the scene.
2:25 p.m.
Chairman Taylor left the meeting.
MR. DEL SMITH, Deputy Commissioner, Department of Public Safety
(DPS), said Senator Cowdery's concerns were probably the reason
SB 204 had been introduced. He said there was a confrontation
between troopers and a man who wanted to check on his grandfather
during the Lazy Mountain fire near Palmer. He recognized the
need to address those issues. He said people came to an area
concerned about their parents, children, other family members,
pets or house.
He said a committee consisting of the Department of Natural
Resources (DNR) and other agencies that responded to wildfires
was formed after the Lazy Mountain fire. He was not directly
involved with the committee but it was his desire to work out
some procedures. He said DPS was working with everyone involved
to come up with a plan to address individual emergency
situations. He met with Lazy Mountain citizens after the fire to
listen to their concerns. He said DPS was working to address
those concerns.
MR. SMITH said SB 204 would allow people to enter an area if they
were a resident of the threatened or affected area and appeared
to be capable of making a reasonable and informed decision. He
was concerned about the ability of law enforcement officers to
make that determination. He said these situations involved high
emotions on the part of both law enforcement officers and
citizens, particularly if people were concerned about their
families or property. His experience was that people in
emergency situations might not remember what they said. He
didn't like putting law enforcement officers in the position of
determining whether a person was able to make an informed
decision.
He said he had never met an emergency responder who would not try
to get someone out of a dangerous situation. He was concerned
allowing people into an area would hinder the efforts of
responders who wanted to rescue them.
He didn't think putting SB 204 into statute was the proper way to
address concerns about emergency management. He understood that
many people felt that agencies wouldn't do anything unless they
were required to by statute. But he felt that the agencies were
involved in making changes and not having anything in statute
allowed them flexibility.
He said there was also the problem of letting nonresidents into
an area under emergency management. He said SB 204 would allow
the State to charge people with making false residency statements
in order to get into an area. He noted that when a disaster was
large enough and went on long enough some people would try to get
into the area to loot unoccupied homes.
SENATOR THERRIAULT said he had the same concerns. He asked if
somebody who was let in would be issued a red vest or something
to indicate that they wished to remain in the area. He didn't
know how SB 204 was supposed to work, especially when things in
an emergency situation were moving quickly.
MR. SMITH said there were problems with emergency situations
before. He believed substantial work had gone into addressing
the problems. He wanted more flexibility in the future for
responding law enforcement officers. He said checkpoints should
be updated if a fire had moved substantially in another direction
and people should be allowed into the safe area. On the other
hand, it was dangerous for people to be in an area if a retardant
drop was needed or the fire turned and came back. He said SB 204
would create substantial amounts of potential liability for the
State.
SENATOR COWDERY said they were discussing people wanting to enter
an area. He noted that there would probably be people already in
the area before responders arrived. He said these people could
be visitors or people driving through as well as residents.
MR. SMITH said that was an issue he had struggled with prior to
the Miller's Reach fire. As a law enforcement officer he was
uncomfortable saying that a person had to leave their residence.
He said there was a man who died because he wouldn't leave his
home in Washington during the Mount St. Helens eruption. He said
it was different if someone wanted to go in an area to protect
his or her residence. He said those people should be given
warning that there was an emergency situation. He said that also
created a problem with responders trying to get people out of a
dangerous area.
SENATOR COWDERY Asked if there were any further questions for Mr.
Smith. There were none.
2:35 p.m.
MS. DEAN BROWN, Deputy Director, Division of Forestry (DOF), DNR,
wanted to testify to the steps that had already been taken to
address concerns about emergency management. She said this was a
complex issue in which the lives of the public and firefighters
were in danger. She said Alaska had experienced a number of
wildland-urban interface fires and related evacuations. She said
the Miller's Reach fire wasn't the first but it was probably the
largest and probably received the most publicity. She said the
Lazy Mountain fire spurred SB 204. She said the bill addressed a
need that was there and was a problem for troopers and fire
fighters in responding to all high-risk emergencies. She said
safety was DNR's first concern.
She said DNR worked with several organizations, including the
Division of Emergency Services, the Alaska State Troopers (AST)
and the Red Cross, to develop guidelines for an official working
document. She said a field guide was created to test evacuation
guidelines. DNR felt the field guide would give them an
opportunity to further refine the guidelines. She said dozens of
organizations responded to huge fires such as the Miller's Reach
fire and those organizations also had valid needs and concerns
about how an evacuation was carried out. She said they were
concerned about documentation making sure all response
organizations knew who was in an area and where they were. DNR
felt the guidelines gave them a good flexible document to use as
a work in progress because they were going to learn as situations
progressed. She said DNR was working with various agencies
regarding recommendations suggested after an investigation of a
fire. She said the guidelines had been created through a good
inter-agency effort and were still being revised. She said the
statute was inflexible and changes would be difficult to make as
they were needed.
2:39 p.m.
Chairman Taylor returned to the meeting.
MS. BROWN said there might be several entrances into an area
under emergency management, each of which would have to be manned
by a law enforcement officer in order to control ingress. But
people with off-road vehicles could enter an area just about
anywhere. She said having unidentified people in an area created
a problem because responders needed to document their presence
and ensure that they had been informed of the latest changes in
the situation.
She thought this was a serious issue and commended the sponsor of
SB 204 for putting it forth and trying to resolve it. She said
DNR worked closely with the Lazy Mountain homeowners' association
on the guidelines. She said a number of very good things that
were incorporated into the guidelines came from their
discussions.
She said there were concerns from DNR and AST about the need to
protect life in wildland-urban interface fires. She said that
was a concern even when a person consented and understood the
risks of staying in an area.
She said the issue was handled considerably differently in other
states. Some states simply determined that if a person entered
an area they had been told not to enter, they were completely on
their own. She said that created an entirely different level of
liability and created serious concerns. She said DNR wanted to
protect life and then property and their responders were
extremely dedicated.
She said the guidelines used in evacuations were a work in
progress and improvements would be made. She said trying to
determine who was already there, who was passing through, and
trying to limit who could enter would create a problem for fire
fighters who should be focused on fire suppression and protecting
life and property. She said DNR would be happy to continue to
work on the guidelines but they needed the flexibility to improve
the guidelines.
SENATOR COWDERY asked what concerns had been expressed by people
who were not supportive of the guidelines.
MS. BROWN thought some people felt there shouldn't be any
restriction on who could enter an area under emergency
management. She said nonresidents might want to check on a
family member in the area. She said a resident who was out of
the area might also call a friend or family member and ask them
to check on pets or children. She said those situations were
addressed in the guidelines but not in SB 204. She said some
areas were very difficult to get into and out of, such as East
End Road in Homer. She said it was difficult to get emergency
vehicles into and out of the area and additional traffic into the
area could affect response efforts.
SENATOR COWDERY said during the Miller's Reach fire there were
people who wanted to go in and retrieve personal effects such as
pictures and family treasures with the knowledge that the
building might burn. He said someone could have been outside and
called their children to go get some things.
CHAIRMAN TAYLOR asked Mr. Kevin Saxby to provide testimony.
MR. KEVIN SAXBY, Assistant Attorney General, Department of Law
(DOL), said there were two legal problems with SB 204. He said
SB 204 would create a legal right for members of the public to be
present in areas under emergency management. He said these were
areas that public safety officials would have determined
evacuation necessary. He said this would override the public
safety tool of evacuation and interfere with emergency
responders.
He said SB 204 would also create a legal duty for emergency
responders to ensure informed consent by residents entering an
area. He said DOL believed this would lead to increased
litigation and litigation risks.
He said Section 1 would make false statements by members of the
public regarding residency illegal. He said SB 204 presumed that
emergency responders would be able to make that determination.
He said DNR firefighters and public safety officers were
relatively ill equipped to make those kinds of decisions on the
spur of the moment in the field. He said a written consent form
could be developed but that would require a higher level of
record keeping in order to ensure and later prove that the
determinations were properly made.
MR. SAXBY said Sec. 2 would create the new rights. He said these
rights would be subject to a number of conditions including
residency determination. He said residency determination would
be very important for the State to address and prove in
litigation. He noted that SB 204 didn't provide for the rights
of nonresidents or family members to be in the area. It only
provided for the rights of the residents of the area.
2:47 p.m.
He said SB 204 wouldn't immunize the State from property damage
occurring as a result of letting the wrong people into an area.
He said property damage often occurred through theft or looting.
He said the State would have to undergo a new burden in order to
ensure that proper determinations about residency and competency
were made.
He said requiring informed consent before allowing residents to
enter an area would carry public policy implications similar to
Miranda warnings. He said Miranda warnings were often videotaped
in order to undercut as many legal arguments as possible. He
said there could be dozens of people wanting to get into an area
during a large emergency situation. He said proving that
informed consent was given would be difficult. He said there
would be people arguing that the warning wasn't given in enough
detail or wasn't understood or people were incapable of making a
reasoned and informed decision because they were afraid, confused
or lacked mental capacity.
He said SB 204 would also allow people who wouldn't be
interfering with the responders' efforts into an area. He noted
that the non-interference would only apply to access. He said SB
204 didn't address people interfering with a backfire or a
retardant drop. He said there would be costly litigation about
the level of non-interference needed to override the rights
created in SB 204. He noted that the legislature could create
the rights but the courts would have to interpret the rights.
He said the immunity clause for the State would only cover the
injury or death of a person entering an area. It wouldn't
immunize the State or the responders against property damage. He
said property damage was the most common damage that occurred in
emergency situations. He said people would be able to tie
property damage to an evacuation decision or a faulty residency
determination.
SENATOR COWDERY said there was a nonresident in the Miller's
Reach fire who had rented a generator and went to the property to
wet the generator down and run the pump so water would be
available. He asked if SB 204 would allow that. He acknowledged
that the person's right to be there would be difficult to prove
on the spot.
TAPE 02-13, SIDE B
1:50 p.m.
MR. SAXBY said it would be difficult to make the determination.
He noted that SB 204 didn't address the right of nonresidents to
enter the area. He said it was presumed that the legislature had
looked at all possibilities and alternatives for State action
when they addressed a concern. He said SB 204 would give a right
to a certain class of people. He said it would be presumed that
the legislature didn't intend for other people to have the same
right. He said there would be litigation and a lot of argument
that statute had been violated if emergency responders allowed
nonresidents into an area.
SENATOR THERRIAULT said Mr. Saxby mentioned that the informed
consent could be given in a written statement. He said he had to
sign a waiver before he went rafting at McKinley. He said the
waiver was nothing more than a speed bump in the road of
litigation. He said people would say they were distraught
because they thought there was a family member, pet or heirloom
in the area. He said Mr. Saxby had done a good job explaining
that there was no good way to limit the liability of the State
and a statute wasn't necessarily enough protection.
He asked if Mr. Saxby was directly involved in putting together
the fiscal note.
MR. SAXBY said he was. He noted that it was an indeterminate
fiscal note.
SENATOR THERRIAULT said it would cost the State money but there
was no way of determining how much.
MR. SAXBY said that was correct.
CHAIRMAN TAYLOR asked if the State had been sued over any of the
recent fires.
MR. SAXBY said the State was still involved in very heavy
litigation regarding the Miller's Reach fire.
CHAIRMAN TAYLOR asked what that litigation alleged.
MR. SAXBY said the main point of the allegation was that
negligent decision-making on the part of State personnel during
the first day or so of the response caused or exacerbated the
property damage that ensued.
CHAIRMAN TAYLOR asked if any of that litigation had been lost.
MR. SAXBY said they had lost some initial motion practice. He
said that was before the Supreme Court but the case had not gone
to trial.
CHAIRMAN TAYLOR asked for suggestions from Mr. Saxby on how the
legislature might enact a law that would provide that people use
a level of common sense.
MR. SAXBY asked if he was speaking of responders or the public.
CHAIRMAN TAYLOR said he was speaking of both. He said existing
laws implied that responders would use some level of common sense
in determining who they allowed into an area and in the way they
dealt with wildland-urban interface fires. He said there were
obviously people who felt they had not done so. He said since
the responders didn't seem to do a very good job deciding who
should enter an area, SB 204 was filed to leave those
determinations up to the people who lived in the area and had
some interest in saving their own property.
He said fires weren't the only concern. He noted that there were
areas in the state that were subjected to flood, earthquake and
tsunami. He said a flood could happen in the Knik River area and
a Fish & Game officer who happened to be the only law enforcement
officer with a boat would be deciding who could go back to their
farm and try to save their cows or who could go back to their
house to save their dog.
He asked for suggestions on how to better tailor SB 204 so that
it would end up with at least some form of standard by which a
reviewing body such as the court or the legislature might address
natural disasters in the future.
MR. SAXBY was sorry that he didn't have any suggestions. He
cautioned that any guidelines that were adopted should be very
general and broad. He said once a statute was adopted and a
legal standard was set people would only need to prove that the
State had violated the statute to prove their negligence case.
He said that was called negligence pro se doctrine. Then they
would just have to prove damages. He said there was a big
difference between guidelines that were internal policy adopted
by an agency and guidelines set into statute by the legislature.
He said it upped the ante when the legislature put them into
statute.
CHAIRMAN TAYLOR said there could be a situation where somebody
called to ask responders to check on their family and nobody
bothered to do so for two days. He said in that situation the
State could be sued. He asked if that was the kind of guideline
he was talking about. He asked if there should be a statute
mandating that such a call should be responded to within 12 hours
or the department would be held liable.
MR. SAXBY said any specific deadline put into statute would
inevitably lead to greater litigation risk for the State.
CHAIRMAN TAYLOR understood his concerns. He said at some point
the legislature had to consider whether it was a risk of
litigation to the State or a risk of loss to the people of the
state. He said that was a very delicate balance. He appreciated
Mr. Saxby's advocacy for the State and the work he had done on SB
204. He said the committee would appreciate suggestions on how
to make it a better piece of legislation.
He asked Ms. Barbara Leiss to provide testimony.
MS. BARBARA LEISS said she and her husband, Mr. Hilary Leiss,
supported SB 204. She said it had been three years since the
Lazy Mountain fire, which started the process.
She was disturbed listening to the testimony saying law
enforcement officers needed more flexibility. She felt they had
all the flexibility in the world during the Lazy Mountain fire
and they abused it and misused it.
She said another testifier said SB 204 would create a new right.
She said it was a legal right that had been taken away from the
people. She said SB 204 was needed to protect the people. She
said law-abiding citizens wanted to make the legislators
understand that they were supposed to enact laws that were for
the people and not against the people. She said without SB 204,
Alaska would be nothing more than a police state with all the
authority and control of lives in the hands of public servants
hired and paid for by the people. She said SB 204 would place
constitutional rights and control over their own lives back into
the hands of the people. She said they didn't wish to be
threatened or coerced by the police like they were during the
Lazy Mountain fire. She said they were honest citizens who
merely wished to protect their homes and families. She said the
existing law went against human nature and the desire to save
loved ones and prevent destruction to their homes. She said no
one should prevent them from performing that natural act. She
said power over others should never be given to the police or any
other public servants without also demanding accountability for
their actions and punishment for inappropriate actions.
MS. LEISS said there was a young man who was running home to
protect his new wife and grandfather and save his farm. She said
the police brought him to his knees, put a gun to his head,
handcuffed him and dragged him off to jail. She said he had to
spend a lot of money to defend himself and his natural born
rights.
She said Alaskans were survivors who were used to helping
themselves and neighbors. She said Alaskans didn't need to be
coddled. She said this wasn't a communist regime. She wanted
elected and hired public servants to understand and accept their
individual independence. She said they were capable of
exercising common sense during a natural disaster.
She said the Lazy Mountain community worked with DPS, AST and DOF
regarding the guidelines. She said the guidelines were very well
written and the community had accepted them. She said the
guidelines had also been presented to and accepted by surrounding
communities. She said SB 204 would merely back up those accepted
guidelines.
She said SB 204 needed to become law because there could be a
change in the different heads of the agencies. She said two of
the individuals who helped to draw up the guidelines weren't with
the agencies anymore. She said they needed to make sure that if
there were a change in personnel the guidelines wouldn't be
changed and would remain the way the communities had accepted
them.
She noted that the guidelines accounted for several possible
situations. She said there was a young man who had been born and
raised in Lazy Mountain who was house sitting his father's house.
He lived in Dutch Harbor so he had no other place to go. She
said he was prevented from going back to the house he was
watching for his father.
She said Alaska drivers' licenses didn't have a physical address
on them. She said anybody looking in their wallet would have a
hard time finding anything with their physical address on it.
She said the guidelines addressed that as well.
MS. LEISS said the communities had accepted the guidelines. She
wondered why the officials were so worried about SB 204 becoming
law. She said people would litigate against the State for
everything and anything. She said the officials in charge of
forestry, fire and law enforcement had fallen down on the job
during the Miller's Reach and Lazy Mountain fires. She said that
was why the people had risen up and wanted SB 204 to protect
them. She expected the Judiciary Committee to pass SB 204 and
give them back their rights.
CHAIRMAN TAYLOR asked if there was anybody else who wished to
testify on SB 204. There was nobody.
SENATOR THERRIAULT asked why was there a problem with putting the
guidelines in SB 204 into law if they would just back up the
guidelines that had been developed. He asked if the bill went
further than the guidelines.
CHAIRMAN TAYLOR said SB 204 would put into statute many of the
guidelines found in the field guide. He said the field guide was
an evolving process that had been developed while working with
agencies and citizens. He said the State felt it should not be
put into law too quickly because changes might be needed.
He said it was his intention to move SB 204 out of committee. He
said the next committee of referral was the Senate Resources
Committee, which had a broader panel than the Senate Judiciary
Committee. He hoped that before SB 204 left Resources, there
would be some finalization of the guidelines that might be
sufficient and incorporated into regulations. He said if that
didn't happen, the Legislature would continue to work on and move
SB 204.
3:10 p.m.
SENATOR COWDERY moved SB 204 out of committee with attached
fiscal note and individual recommendations.
There being no objection, SB 204 moved out of committee with
attached fiscal note and individual recommendations.
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