Legislature(1993 - 1994)
03/09/1994 08:32 AM House FIN
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE FINANCE COMMITTEE
March 9, 1994
8:32 a.m.
TAPE HFC 94-52, Side 2, #000 - end.
TAPE HFC 94-53, Side 1, #000 - 448.
CALL TO ORDER
Co-Chair Larson called the House Finance Committee to order
at 8:32 a.m.
PRESENT
Co-Chair Larson
Co-Chair MacLean Representative Martin
Vice-Chair Hanley Representative Navarre
Representative Brown Representative Parnell
Representative Foster Representative Therriault
Representative Grussendorf
Representative Hoffman was not present for the meeting.
ALSO PRESENT
Senator Robin Taylor; Senator Jay Kerttula; Bruce Botelho,
Attorney General, Department of Law.
SUMMARY INFORMATION
SB 178 "An Act relating to civil nuisance actions; and
providing for an effective date."
CSSB 178 (FIN) was HELD in Committee for further
discussion.
SENATE BILL NO. 178
"An Act relating to civil nuisance actions; and
providing for an effective date."
BRUCE BOTELHO, ATTORNEY GENERAL DESIGNEE, DEPARTMENT OF LAW
responded to an inquiry by the House Finance Committee in
regards to the constitutionality of HCS CSSB 178 (FIN). He
distinguished between a private and public nuisance. He
observed that a private nuisance is a "non-trespassing
invasion of another's interest in private use and enjoyment
of land." He summarized that a private nuisance threatens
one person or a relative few people and involves
interference in the use or enjoyment of land and is
actionable by the individual person or persons whose rights
have been disturbed.
1
Attorney General Botelho observed that HCS CSSB 178 (FIN)
would amend AS 09.45.230. He explained that general
nuisance law authorizes a private cause of action with two
remedies, the right to seek to enjoin or abate the private
nuisance; and the right to seek damages for the injury. He
stressed that HCS CSSB 178 (FIN) leaves intact the general
law of nuisance, except within the parameters detailed on
page 1, line 7 through page 2 line 6, HCS CSSB 178 (FIN).
Attorney General Botelho observed that HCS CSSB 178 (FIN)
provides a definition of the term "nuisance", and bars any
pending action that has not been brought to judgement before
the effective date.
Attorney General Botelho acknowledged that the purpose of
HCS CSSB 178 (FIN) is clear. He noted that if a
governmental institution has approved the issuance of a
permit, license or order, after having determined that the
activity to be conducted will not offend the public health
or safety, then the permittee should be able to rely upon
that determination with some reasonable assurance that there
will not be interference with the conduct of the activity.
Attorney General Botelho summarized that proponents feel
that nuisance law as it currently exists is being abused by
those who, disgruntled by their lack of success in blocking
the issuance or renewal of permits, resort to this means to
achieve their ends. He emphasized that there are
appropriate remedies and sanctions that the court may impose
on those that abuse the process.
Attorney General Botelho outlined three potential
constitutional problems. He stated that it is a fundamental
principle of law that a person has a right to reasonable use
and enjoyment of his property and to the extent there is
substantial interference with that right, the person is
entitled to a remedy or some form of compensation. He
pointed out that HCS CSSB 178 (FIN) disallows a remedy to
private property owners. He suggested that this may raise
the question of constitutionality. He accentuated that
courts are under a duty to construe statutes in a way that
they will be found consistent with the Constitution. He
reflected that the court could read into the statute a
governmental taking and an implied right to seek damages
from the government.
Attorney General Botelho spoke to Amendment 3, provided by
Representative Brown (copy on file). He observed that the
amendment recognizes the liability of the state and is
drafted to alleviate the constitutional problem. He pointed
2
out that the amendment would not address all the issues
regarding the right to seek damages. He noted that there
would be no viable remedy for landowners who move against
federal permit holders. He added that liability for damages
has effectively shifted from the permit holder to the public
at large.
Attorney General Botelho addressed the issue of state
indemnification. He pointed out that there may be a
potential constitutional problem with state indemnification.
He questioned if the legislature can commit public resources
for the taking of private property, for a non-public
purpose. He emphasized that public lawyers could be called
on to defend the conduct of permit holders.
Attorney General Botelho challenged the constitutionality of
the retroactive effective date. He noted that HCS CSSB 178
(FIN) would extinguish the right to maintain an action. He
suggested that a pending tort claim may be a
constitutionally protected property interest that itself
cannot be taken away without due process.
Attorney General Botelho acknowledged that the underlying
motive for HCS CSSB 178 (FIN) is to make Alaska more "user
friendly" to resource extraction industries, which will be
the economic base of the state. He urged caution that in
curing one perceived problem, another is not created. He
accented that a prudent regulator, faced with the prospect
of state liability, is likely to modify his conduct through
additional public notice, strict conditions,
indemnification, and disclaimers. Citizens dissatisfied
with the conduct of regulators could bring increased
injunctive actions against the state to block the issuance
of permits.
Attorney General Botelho conceded that he could not
anticipate the court's position in regards to the matters
previously discussed. He elucidated that some bans are in
place in other states, that proponents may successfully
argue that exceptions are narrowly crafted, and that public
enforcement and remedies remain in effect. He maintained
that the legislation can impose reasonable restrictions on
the right to bring private nuisance actions. He pointed out
that the legislature has already banned certain nuisance
actions against agriculture, where one moves to the cause of
the nuisance, AS 09.45.235. He added that the legislature
can modify the definition of "nuisance". He read the state
of California's definition of "nuisance":
"Anything which is injurious to health, or is indecent
or offensive to the senses, or an obstruction to the
free use of property, so as to interfere with the
3
comfortable enjoyment of life or property, or
unlawfully obstructs the free passage or use, in the
customary manner, of any navigable lake, or river, bay,
stream, canal, or basin, or any public park, square, or
highway, is a nuisance."
Attorney General Botelho noted that HCS CSSB 178 (FIN)
defines "nuisance" as:
"A substantial and unreasonable interference with the
use or enjoyment of real property, including water."
Attorney General Botelho pointed out that the presumption
that an activity conducted in accordance with a state or
federal license or permit is reasonable, could be used to
rebut nuisance lawsuits.
Attorney General Botelho suggested that if HCS CSSB 178
(FIN) is adopted that AS 46. 03.870 would need to be
amended. He stressed that contradictory statutes not
remain.
Representative Therriault asked if there is some point when
a person unhappy with the result of actions taken to prevent
an activity cannot bring additional court action. Attorney
General Botelho replied that if an action to prevent the
issuance of a permit is judged by the court to be invalid
than the basis for additional action would not exist.
In response to a question by Representative Therriault,
Attorney General Botelho demonstrated that even if the
permitting agency determines that no impact will be caused
at the property line there is no way to guarantee that
damages will not result. He raised the question of who
would be responsible for damages.
Representative Therriault emphasized that private property
owners would be able to argue their case when the permit
comes up for review if damages to their property has
occurred. Attorney General Botelho pointed out that if
damages occur the agency does not have the authority to
assign damages to the permit holder. He acknowledged that
agencies can impose stronger provisions.
Representative Therriault noted that some permits contain
provisions for compensation of possible damage by the
permitted activity. Attorney General Botelho observed that
the larger the permit and the closer to populated areas the
greater the chance that permits will identify and anticipate
most eventualities.
In response to a question by Representative Foster, Attorney
4
General Botelho observed that the California definition of
"nuisance" is a broad interpretation. He discussed the
California definition of "nuisance".
Representative Grussendorf asked for recommendations to
accomplish the intent of the legislation. Attorney General
Botelho prefaced his remarks by stressing that courts are
constrained to try to determine that enacted legislation is
constitutional. He observed that the substitution of the
state as the body upon which damages can be asserted would
raise the additional question of can the state use resources
to satisfy a non public purpose. He suggested that the
state be expressly permitted to tender the actual cost of
the case.
Representative Brown referred to Amendment 3. Attorney
General Botelho reiterated that the best defense of
Amendment 3 is to allow the state to tender the defense from
the outset. He expounded that the cost of the case
including the judgement be adopted by the state.
Representative Brown questioned if the adoption of Amendment
3 would allow individuals to litigate against the state for
damages occurring under federal permits. Attorney General
Botelho could not answer the question. He noted that if
there is a taking by the state as a result of the statute,
the courts may focus on the fact that the state is the court
remedy. He suggested that allowing the state to tender the
case along with adoption of Amendment 3 may remedy the
situation.
Representative Brown provided to members a letter by Theresa
Bannister, Legislative Counsel, dated 3/7/94 (copy on file).
She asked if Attorney General Botelho agreed with
assumptions, made by Ms. Bannister, that nuclear waste
exception raise a constitutional equal protection issue.
Attorney General Botelho did not feel that the issue is a
major impediment.
Representative Parnell referred to the opinion by Theresa
Bannister, Legislative Counsel, regarding the retroactive
clause. He noted that the abruptness of the action was
cause for concern. He asked if the fact that the
legislation was under consideration for an extended length
of time would counteract the claim of abruptness of action.
Attorney General Botelho felt that the court would consider
the effective date of the action.
(Tape Change, HFC 94-53, Side 1)
Attorney General Botelho anticipated that the court would
consider the fundamental fairness of the issue. He could
5
not recall other examples of litigation cut off by
legislation. He discussed the retroactive change made by
Economic Limit Factor. He illuminated factors that the
court might consider.
Representative Navarre raised the issue of equal protection
of permit holders. Attorney General Botelho stressed that
it is possible that an equal protection issue could be
raised, if permittee subject to the same permit processes
were treated differently. He anticipated that the court
would allow the legislature to distinguish between classes
of permittee.
In response to a question by Representative Navarre,
Attorney General Botelho emphasized that permitting agencies
cannot control the actual impact of activities.
Representative Navarre queried if private property holders
testify that they believe an activity being reviewed for
permitting will lower their property values and the activity
after being permitted does result in a lowering of the
private property values, if it would be a foreseeable harm.
Attorney General Botelho answered that it could be a
foreseeable harm. He stressed that the issue is, do they
have entitlement to compensation for the reduced value.
Representative Navarre asked who would be liable under HCS
CSSB 178 (FIN). Attorney General Botelho replied that in
order for a court to construe the legislation constitutional
there would have to be an implied right of action against
the permitting agency. Attorney General Botelho discussed
private versus public nuisance actions.
Representative Brown asked if the definition of "nuisance"
should be uniform. Attorney General Botelho acknowledged
that definitions may vary through statute.
Representative Hanley asked if agencies can prohibit a
permit from being issued based on a potential damage to
private property. Attorney General Botelho affirmed that
conditions can be placed or imposed to mitigate effects on
private property. He pointed out that private and public
interests overlap. Representative Navarre asserted that HCS
CSSB 178 (FIN) extinguishes private property concerns even
if they are not addressed.
CSSB 178 (FIN) was HELD in Committee for further discussion.
ADJOURNMENT
The meeting adjourned at 9:45 a.m.
6
| Document Name | Date/Time | Subjects |
|---|