Legislature(2009 - 2010)BELTZ 211
03/30/2009 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB47 | |
| SB148 | |
| SB48 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | SB 148 | TELECONFERENCED | |
| + | SB 48 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| = | SB 47 | ||
SB 148-LIABILITY FOR TRIBAL ROAD CONSTRUCTION
1:36:16 PM
CHAIR FRENCH announced the consideration of SB 148.
DOROTHY SHOCKLEY, Staff to Senator Albert Kookesh, introduced SB
148 with the following statement:
SB 148 will resolve the issue of liability to the
state or employees of the state when partnering with
federally recognized tribes under the Indian
Reservation Roads (IRR) Program. With the decline in
state and federal highway funds, it is imperative that
we collaborate and work together. This bill will
assist the partnering process and ultimately benefit
all Alaskans by leading to long-term improvements in
the state's overall transportation infrastructure.
She directed attention to the list of tribes in Alaska that in
2008 received more than $45 million in IRR funds. The stimulus
is expected to supplement these funds by roughly $40 million. As
the Department of Transportation & Public Facilities prepares
the next Statewide Transportation Improvement Program (STIP),
tribes for the first time can bring both matching and
maintenance funds, she said. "This will move the working
relationship along and allow both state and federal funds to be
used on highways."
1:38:33 PM
CHAIR FRENCH asked Mr. Putzier to explain where this would
apply, to whom it would apply, and what would happen in the
event that a road was built incorrectly and someone wanted to
file suit.
PETER PUTZIER, Senior Assistant Attorney General, Civil
Division, Opinions, Appeals, & Ethics, Department of Law (DOL),
Anchorage, explained that the bill would apply where a tribe is
performing work on state roads pursuant to the IRR Program. This
program has been around for some time, but with changes in the
law tribes now are better funded. Most notably in 2005 SAFETEA-
LU (Safe Accountable Flexible Efficient Transportation Equity
Act) made about $100 million available to the roughly 230
federally recognized tribes in Alaska. One sort of partnering
relationship that has been discussed is that the tribe would use
100 percent federal funds and their own personnel to perform the
work.
CHAIR FRENCH questioned where this work would take place.
MR. PUTZIER explained that by definition Indian Reservation
Roads are either on a reservation or leading to or from an
Alaska Native village. That opened the door for a number of
state roads to be denominated as Indian Reservation Roads and
the tribes have expressed an interest in taking over the
maintenance activities for some of those roads.
CHAIR FRENCH asked if the state highway near Mentasta could
potentially fall under the bill.
MR. PUTZIER replied there is that potential.
CHAIR FRENCH asked what would determine whether that highway did
fall under the bill.
MR. PUTZIER explained that the tribes go through a process with
the Bureau of Indian Affairs (BIA) where sections of road that
are on a particular tribe's inventory are formally denominated
as an Indian Reservation Road.
CHAIR FRENCH asked if the state has any input in the decision.
MR. PUTZIER said no. Early on the state was asked to certify
certain state roads as IRR and there was considerable discussion
about what that certification should say. Ultimately, the state
provided a listing of the public roads in Alaska without
providing any sort of certification. Tribes used that public
listing of roads to identify the various roads they consider to
be IRRs.
CHAIR FRENCH summarized that the state opted not to make the
hard choices and simply turned over a list of all state roads.
1:42:54 PM
MR. PUTZIER clarified that it's not up to the state to decide
whether or not certain segments of road are IRR or not. "We were
asked to provide a certification that the roads were Indian
Reservation Roads and we weren't sure of the ramifications of
providing such a certification," he added.
CHAIR FRENCH asked how many miles of state road were on the list
that was given to BIA.
MR. PUTZIER replied he doesn't know the number of miles but he
believes the list includes all state roads within Alaska.
CHAIR FRENCH said, "So you basically turned the universe of
state roads over to BIA and now it's up to them to make the
final decision as to which segments of those roads this bill
would apply to."
MR. PUTZIER clarified that the state didn't turn anything over
to the BIA; they simply provided a publicly available listing of
the roads in the state.
CHAIR FRENCH asked what position the administration is taking on
the bill.
MR. PUTZIER replied he believes the administration supports it.
CHAIR FRENCH asked if he's being cautious because he hasn't
asked.
MR. PUTZIER replied this didn't come through as a governor's
bill, but DOTPF certainly supports it.
SENATOR THERRIAULT observed that the bill says "By the Senate
Transportation Committee by request" and asked if that doesn't
mean it is at the request of the administration.
1:44:43 PM
MARY SIROKY, Legislative Liaison, Department of Transportation
and Public Facilities (DOTPF), confirmed that the bill was at
the request of the administration.
SENATOR WIELECHOWSKI asked about the ability of an individual to
sue a tribe.
MR. PUTZIER explained that the tribe would be considered an
employee of the federal government and in the event that it is
sued, the federal Department of Justice would take over the
defense. A person would be able to maintain an action against
the tribe pursuant to the Federal Tort Claims Act. That is a
waiver of the federal government's liability to certain causes
of action similar to what the state has, so a lawsuit could be
maintained against the tribe.
SENATOR WIELECHOWSKI asked if the Act limits the amounts a
person can recover.
MR. PUTZIER replied it's similar to the state recovery in that a
person can get compensatory but not punitive damages. He said he
doesn't believe the compensatory damages are capped, but he
isn't certain.
SENATOR WIELECHOWSKI asked if, for these types of actions, the
limits under the Federal Tort Claims Act are different than
under the State Tort Claims Act.
1:46:38 PM
MR. PUTZIER replied he doesn't know the answer.
SENATOR WIELECHOWSKI asked if someone online might know the
answer.
CHAIR FRENCH noted that that there wasn't anyone who could
answer and asked Mr. Putzier to find out soon.
MR. PUTZIER agreed to do so.
SENATOR WIELECHOWSKI asked how common it is to have lawsuits
with claims arising out of design, operations, maintenance, or
construction activities pertaining to roads.
MR. PUTZIER replied, according to the tort section, it's quite
common to have litigation arising on highways.
SENATOR WIELECHOWSKI noted that he received a letter from an
angry constituent complaining about the ruts on the Glenn
Highway that allegedly caused an accident. He understands
there's a balance, but he doesn't want to pass this bill if it
takes away Alaskan's constitutional right to file a lawsuit if
they've been wronged.
1:48:25 PM
MR. PUTZIER acknowledged it's a good point, but the bill doesn't
relieve the State of Alaska of its own negligence. The idea of
the bill is that if a project is managed by a tribe, any actions
arising from that work could not be brought against the state.
The individual could sue the tribe. However, the state would
remain liable for certain causes of action.
SENATOR WIELECHOWSKI asked if lawsuits against tribes in these
types of actions would need to be brought in federal district
court.
MR. PUTZIER said his understanding is that under the Federal
Tort Claims Act an individual first has to file an
administrative claim against the agency for which the tribe is
working. Typically that would be the Federal Highway
Administration (FHWA) and that agency would have about six
months to process the claim. If it's unresolved at that level an
individual would have the right to sue in federal district
court.
SENATOR WIELECHOWSKI asked if this means an individual would not
be able to sue in state court.
MR. PUTZIER said his understanding is that there would not be
the ability under the Federal Tort Claims Act.
SENATOR WIELECHOWSKI asked if the statute of limitations is
different under the Federal Tort Claims Act than the 1tate Tort
Claims Act.
MR. PUTZIER said he believes they differ in some respects, but
he would check on that.
SENATOR WIELECHOWSKI expressed interest in getting the
information and asked if he said he would also provide a list of
the roads that would be impacted by the bill.
MR. PUTZIER asked if he wanted a list of state roads or Indian
Reservation Roads.
SENATOR WIELECHOWSKI replied he'd like to know the breadth and
depth of the roads that this will impact. In particular he's
interested in the major roads along the Railbelt and any roads
in Anchorage.
MR. PUTZIER said he knows that sections of the Glenn Highway
have an IRR designation.
SENATOR WIELECHOWSKI expressed concern that this creates a maze
for Alaskans to navigate to figure out who they need to sue and
what procedures they need to go through in order to file a
lawsuit.
1:52:16 PM
CHAIR FRENCH asked if this is the sort of provision you'd see
done on behalf of contractors that the state employs to build
roads.
MR. PUTZIER explained that DOTPF asks to be named as an
additional insured when it contracts with a contractor.
CHAIR FRENCH observed that if there's an accident on a road that
the state contracted, the lawsuit alleging a poorly designed
road ultimately will follow an insurance policy to its end.
MR. PUTZIER agreed; typically the state and the contractor are
sued and the state will tender the defense to the contractor.
CHAIR FRENCH asked if in this case the state will say an
individual should go to federal court to seek damages.
MR. PUTZIER emphasized that this is slightly different than a
normal construction job because it literally turns over the
construction to the tribe. The tribe would be using federal
funds and its own resources; the state would have no active
participation or oversight. It's a government-to-government
relationship between the tribe and the federal government.
1:54:10 PM
CHAIR FRENCH said he can see the attraction because there would
be more federal funds and more work for the tribes. "There's not
even a 90:10 match, it's pure federal dollars."
MR. PUTZIER responded there is the opportunity for a match, but
he believes the goal is for the tribe to build its own
transportation expertise so there is a desire to do the work
itself.
CHAIR FRENCH asked if this is mandated by SAFETEA-LU or if other
state legislatures are pushing this type of legislation.
MR. PUTZIER replied this is not required and because the program
is new, states with Indian reservations are trying to figure out
how the state/tribal relationship will occur. Alaska is
different in that it doesn't have reservations and has the issue
that IRRs can be roads leading to and from villages. That
complicates the jurisdictional puzzle and the application of the
program so looking at other states won't provide a clear analogy
to the kinds of issues that Alaska is facing.
1:55:43 PM
GORDON JACKSON, Director of Roads and Transportation, Central
Council Tlingit Haida Indian Tribes of Alaska (THITA), said
THITA is one of the largest federally recognized tribes in
Alaska with 27,000 members, $25 million in budgets, and about
250 employees. SB 148 is important and, if enacted, it will
resolve the state's lingering concern about potential liability
from IRR projects. If the bill does not pass the state may
continue to require model maintenance agreements, which require
tribes to carry significant general liability coverage to
protect the state. This insurance can be costly and difficult to
obtain.
1:57:59 PM
MR. JACKSON said THITA takes inventory of roads within the City
and Borough of Juneau (CBJ) and has also entered into
memorandums of agreement (MOA) with various municipalities. The
MOA basically says the tribe will coordinate and cooperate on
roads and where possible provide matching funds. THITA also sent
a MOA to the state. Roughly $320 million is available nationally
for the IRR Program and THITA wants to ensure that it is being
proactive.
2:00:03 PM
CHAIR FRENCH asked if he has projects in mind.
MR. JACKSON replied there are a number of trails that CBJ has
mentioned, there is some need for marine highway terminals, and
there is need for terminal buildings at various airports. The
idea is to work cooperatively if money is coming to the state,
he said.
KAY GOUWENS, Attorney, Sonosky Chambers Sachse Miller & Munson,
Anchorage, said she is testifying on behalf of the Chickaloon
Native Village in support of SB 148. She related that her firm
has been negotiating with the state for more than a year on a
proposed model maintenance agreement under which tribal entities
could maintain state-owned roads. There has been agreement on a
number of issues but liability of the state remains a major
sticking point. Passage of SB 148 would resolve the state's
concerns so that these projects can go forward. Under the IRR
Program, tribal contractors performing work are treated as if
they are agents of the federal government and their employees
are treated as if they are federal employees. The Federal Tort
Claims Act gives protection to the traveling public and makes it
unnecessary for the tribes to carry insurance to protect
themselves from liability. Passage of this bill will make it
possible to move beyond the state's liability concerns and bring
IRR funds into the state and put them to work.
2:04:28 PM
CHAIR FRENCH asked if a citizen would sue the federal government
or the tribe under the Federal Tort Claims Act if an accident
were to happen on a road that had been designed, operated, or
maintained by a tribe.
MS. GOUWENS replied it would technically be the federal
government but she expects that the claim would be presented to
the tribe. The tribe would have an obligation to forward the
claim to the Federal Highway Administration (FHWA), the FHWA
would enter it into the Federal Tort Claims Act process, and the
Department of Justice would handle any lawsuit that is filed.
CHAIR FRENCH asked what assurance the citizen would have that
they would be paid if they were to sue the tribe.
MS. GOUWENS replied by operation of law those are claims against
the federal government so the federal government is on the hook
for any payment that has to be made on those claims.
2:06:49 PM
SENATOR WIELECHOWSKI observed that the tribes don't have to have
insurance.
MS. GOUWENS said that's correct. The Indian Self Determination
Act (ISDA) is the applicable law. It provides the Federal Tort
Claims Act coverage for the IRR Program, and others, pursuant to
or in accordance with the ISDA. Indian tribes are taking over
federal Indian programs that federal agencies used to provide
directly. Those federal agencies were covered by the Federal
Tort Claims Act so they didn't have to purchase insurance. The
idea is that the same protection should apply when the tribes
are carrying out the programs. The FTCA provision makes a lot of
sense because it prevents the tribes from having to spend their
limited resources on buying insurance and still it protects the
traveling public.
SENATOR WIELECHOWSKI asked if a claim would be dragged into
federal district court if somebody wanted to sue another driver
because there had been an accident caused by negligent
construction of the road.
MS. GOUWENS said her understanding is that if somebody filed an
action in state court to sue another driver the tribe would
inform the federal government and the federal government would
have that action removed to federal district court. "I believe
the whole case would go, but under the Federal Tort Claims Act,
state substantive law on liability applies," she said.
SENATOR WIELECHOWSKI asked if the FTCA limits would apply only
to the tribe and not to the other driver who caused the
accident.
MS. GOUWENS replied she believes that's correct. The FTCA
doesn't allow punitive damage claims against the federal
government but she doesn't know about any dollar amount limit.
It's a two-year statute of limitation for filing the claim,
which is the same as for the state tort law.
SENATOR WIELECHOWSKI asked if there is a time limit for
notifying the administrative agency.
MS. GOUWENS said she believes the time limit is two years to
file the claim with the administrative agency and then the
agency has six months to act on that claim.
SENATOR WIELECHOWSKI asked if the agency typically acts within
six months.
MS. GOUWENS said yes.
HOWARD MERMELSTEIN, Director, Tetlin Native Village Department
of Transportation, stated support for SB 148. Responding to
previous questions about what is on the inventory, he explained
that the C.F.R. 25.179 regulations governing the IRR Program
states that any road that provides primary access or access to
goods and services for Alaska Natives is eligible to be included
in the inventory. Working from the public listing of state roads
the tribe selects and submits an inventory document to BIA which
uses parameters to decide what roads do or do not go into the
system. Roads that are owned by the state go into the system as
state-owned roads and the tribes generate five percent of the
cost to construct on the road. Part of the Alaska Highway
traverses the former Tetlin reservation and that section of road
is in the system.
The traveling public will always have a place to turn with
respect to liability. For the most part the tribes are
interested in ongoing maintenance, but any must follow the
federal highway regulations and meet or exceed state or federal
standards for road construction. If there is litigation the case
would go over to the federal government through the Federal Tort
Claims Act. It's important that the bill pass so that projects
can move forward because the IRR Program does bring in $50
million a year to the state, he stated.
SENATOR THERRIAULT asked how broadly the term "road" is
interpreted and if rural community boardwalks would qualify.
MR. MERMELSTEIN replied boardwalks that are more than 12 foot
wide have been reclassified as board roads and many of those are
in the system. This allows tribes the ability to maintain those
board roads, many of which were built by the BIA. The work must
meet or exceed accepted standards and if the tribe and their
contractors carried out the design, then it would fall under
protection of the tribes and the Federal Tort Claims Act.
Oftentimes trails fall under the classification of motorized
trails, which allows tribes to spend their funds to upgrade or
maintain those trails. In order for a tribe to widened or make a
state-owned trail into a roadway. Once a road or trail is in the
IRR inventory, they are open to the general public and the tribe
can no longer block access.
2:20:25 PM
SENATOR THERRIAULT asked if a boardwalk of less than 12 feet
could be nominated as a project for improvement.
MR. MERMELSTEIN said yes and added that what a tribe receives
through the funding formula is based on population, vehicle
miles traveled and the length of section of roadway.
CHAIR FRENCH noted the table showing the list of tribes and the
amount that would go to each under what looks like the 2008
allocation. He said it's worth pointing out that the amounts of
money available to tribes on the major road system are fairly
modest, which would suggest there won't be a wholesale
substitution of tribes in place of the state with respect to
construction, design and maintenance goes. For example,
Chickaloon would receive $580,000 and Eklutna is in line for
$42,000. While the total $36 million allocation is large, each
individual tribe would receive just a modest amount of money.
MR. MERMELSTEIN agreed and added that Chickaloon is in line for
more funding than most tribes because it has been proactive for
years in getting the roads traversing its land into the system.
Four tribes on Prince of Wales Island also have been proactive
for years and they are in line for roughly $7 million. As the
program increases in size, more funding will come into the
state. For FY09 about $54 million should come to the state
through its tribal governments for roads.
2:25:01 PM
JOHNNY AMBROSE, Transportation Technician, Ruby Tribal Council
stated support for SB 148 on behalf of the Council. He's been in
his current position for a little over a year and the learning
curve is steep.
CHAIR FRENCH announced he would hold SB 148 over so that he
could hear from a plaintiff's attorney to get their perspective
on what this might mean to the traveling public.
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