Legislature(2003 - 2004)
04/04/2003 08:35 AM House FSH
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
HOUSE SPECIAL COMMITTEE ON FISHERIES
April 4, 2003
8:35 a.m.
MEMBERS PRESENT
Representative Paul Seaton, Chair
Representative Peggy Wilson, Vice Chair
Representative Dan Ogg
Representative Ralph Samuels
Representative Ethan Berkowitz
Representative David Guttenberg
MEMBERS ABSENT
Representative Cheryll Heinze
COMMITTEE CALENDAR
HOUSE BILL NO. 130
"An Act relating to the award of damages, costs, and attorney
fees in an action against a seafood processor under certain
state laws that prohibit unfair trade practices, monopolies, and
restraints of trade; stating legislative intent regarding the
appropriation and use of money obtained by the state from the
operation of this Act; amending Rules 54, 58, and 82, Alaska
Rules of Civil Procedure; and providing for an effective date."
- MOVED CSHB 130(FSH) OUT OF COMMITTEE
HOUSE CONCURRENT RESOLUTION NO. 10
Relating to restoration of riparian habitat that is vital to the
fisheries resources of the state.
- MOVED HCR 10 OUT OF COMMITTEE
PREVIOUS ACTION
BILL: HB 130
SHORT TITLE:UNFAIR TRADE PRACTICES; ANTITRUST
SPONSOR(S): REPRESENTATIVE(S)WEYHRAUCH
Jrn-Date Jrn-Page Action
02/26/03 0305 (H) READ THE FIRST TIME -
REFERRALS
02/26/03 0305 (H) FSH, JUD, FIN
04/04/03 (H) FSH AT 8:30 AM CAPITOL 124
BILL: HCR 10
SHORT TITLE:RESTORATION OF RIPARIAN HABITAT
SPONSOR(S): REPRESENTATIVE(S)WOLF
Jrn-Date Jrn-Page Action
02/28/03 0338 (H) READ THE FIRST TIME -
REFERRALS
02/28/03 0338 (H) FSH, RES
03/17/03 0565 (H) COSPONSOR(S): FOSTER
03/19/03 0593 (H) COSPONSOR(S): LYNN, MEYER
03/26/03 0652 (H) COSPONSOR(S): HEINZE,
CHENAULT
04/02/03 0749 (H) COSPONSOR(S): MORGAN
04/04/03 0798 (H) COSPONSOR(S): WILSON
04/04/03 (H) FSH AT 8:30 AM CAPITOL 124
WITNESS REGISTER
REPRESENTATIVE BRUCE WEYHRAUCH
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented the sponsor statement for HB 130.
CATIE BURSCH, Bristol Bay setnetter
Homer, Alaska
POSITION STATEMENT: Testified on behalf of herself that she
would support HB 130 if the amount was changed to 5 percent and
was specified towards funding the marketing of wild salmon.
CLYDE (ED) SNIFFEN, JR., Assistant Attorney General
Fair Business Practices Section
Civil Division (Anchorage)
Department of Law
Anchorage, Alaska
POSITION STATEMENT: Provided information relating to HB 130.
REPRESENTATIVE KELLY WOLF
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented the sponsor statement for HCR 10.
ACTION NARRATIVE
TAPE 03-23, SIDE A
Number 0001
CHAIR PAUL SEATON called the House Special Committee on
Fisheries meeting to order at 8:35 a.m. Representatives Seaton,
Wilson, Ogg, Samuels, and Guttenberg were present at the call to
order. Representative Berkowitz arrived as the meeting was in
progress.
HB 130-UNFAIR TRADE PRACTICES; ANTITRUST
[Contains discussion pertaining to HB 131]
CHAIR SEATON announced that the first order of business would be
HOUSE BILL NO. 130, "An Act relating to the award of damages,
costs, and attorney fees in an action against a seafood
processor under certain state laws that prohibit unfair trade
practices, monopolies, and restraints of trade; stating
legislative intent regarding the appropriation and use of money
obtained by the state from the operation of this Act; amending
Rules 54, 58, and 82, Alaska Rules of Civil Procedure; and
providing for an effective date." [In committee packets was
Version I, labeled 23-LS0484\I, Bannister, 4/3/03.]
Number 0189
REPRESENTATIVE BRUCE WEYHRAUCH, Alaska State Legislature,
speaking as the sponsor of HB 130, testified that the bill takes
into consideration short-term concerns as well as addressing
longer-range effective public policy. He said that although HB
130 was intended to be a companion bill to HB 131, the bills
need to be looked at and considered separately. He informed the
committee that HB 131 would appropriate $40 million from the
general fund to ASMI [Alaska Seafood Marketing Institute] for
the purpose of marketing wild salmon, whereas HB 130 is the
mechanism that provides financing to ASMI.
Number 0289
REPRESENTATIVE WEYHRAUCH told the committee that the Alaska tort
reform statute, used as a model for HB 130, was passed by the
legislature in 1997, and requires that 50 percent of an award of
punitive damages be paid to the State of Alaska, to be deposited
in the general fund.
Number 0346
REPRESENTATIVE WEYHRAUCH said that the mechanism in HB 130 would
require 15 percent or $40 million - whichever is less - to be
paid to the general fund, anytime damages are awarded under the
state antitrust statute; the state's antitrust statutes are
based on the federal antitrust statutes under the Sherman Act.
Under Alaskan antitrust statute, if a party alleges damages for
collusion, monopoly, or unfair trade practices and if they prove
their complaint, then they would get those damages; under the
antitrust statute, damages are automatically treble, he said.
Number 0450
REPRESENTATIVE WEYHRAUCH explained that the punitive damages are
built into the antitrust statute in the form of treble damages
for any party aggrieved under those unfair trade practice
statutes; the statutes also address "prevailing-party
litigation" and the fees that are involved. He informed the
committee that there is no jury decision on how much punitive
damages should be awarded; the damages are already calculated.
There's a treble damage award under the antitrust statutes,
which are the same statutes referred to in HB 130. He said that
this is different from the tort statute or the tort reform
statute, which requires a punitive damage claim. That punitive
damage claim is determined by a judge as to whether there's
clear and convincing evidence of outrageous conduct, and if
there is, then there's a trial in which the defendant's wealth
is brought in and a jury or the "definer of fact" determines how
much punitive damages should be awarded.
Number 0520
REPRESENTATIVE WEYHRAUCH spoke to the proposed committee
substitute (CS), saying that the intent language pertains to any
funds under Section 1; that is, any funds obtained through the
mechanism of HB 130 would go to ASMI. He said that because [the
State of] Alaska cannot dedicate funds, this action of intent
indicates to the legislature that a political act will have to
be taken later - by the legislature - to appropriate any funds
received in this manner. The language doesn't bind the
legislature; it's just a signal of intent. Representative
Weyhrauch stated that the intent is to market wild salmon,
stressing that Alaska has a significant problem with marketing
wild salmon in light of the $65-to-$80 million budget utilized
by Chile, New Zealand, Scotland, Norway, and Newfoundland, for
example, which raise farmed salmon. Alaska's efforts to market
wild salmon are miniscule compared with those worldwide
marketing efforts; there are salmon fishermen losing their jobs
and businesses, he emphasized.
Number 0605
REPRESENTATIVE WEYHRAUCH said that there must be marketing
efforts that match the worldwide competition for salmon
products. He explained that the proposed CS differs from the
original bill in that, rather than targeting the seafood
processing industry, the bill and its provisions apply
universally, to all persons and entities.
Number 0702
REPRESENTATIVE WEYHRAUCH said that in retrospect, removing
Section 1 would remove the intent language that has monies going
to ASMI; if the bill were introduced as such, there would
probably be no reason for referral to this committee because it
would go to the House Judiciary Standing Committee and then on
to a House Finance Committee referral. But, he continued,
Section 1 remains, indicating that the [House Special Committee
on Fisheries] will make a policy decision as to whether there
will be funding to market the state's wild salmon.
Number 0768
REPRESENTATIVE WILSON referenced the award being tripled and
asked if the 15 percent was, in fact, only 5 percent of the
original award.
REPRESENTATIVE WEYHRAUCH said that if there was a $50 award that
was trebled to $150, 15 percent of that award or $40 million
would be taken, whichever amount was less.
Number 0830
REPRESENTATIVE OGG asked how many antitrust suits have been
filed in Alaska under the state statutes in the last 20 years.
REPRESENTATIVE WEYHRAUCH replied that plenty of antitrust suits
have been filed. He said that [Alaska Judicial Council] - the
organization associated with the court system that keeps track
of settlements and outcomes of cases - has only kept statistics
for the past five or six years. He stated that it is up to the
parties to report such information to the court system and that
he hasn't found a centralized database indicating the number of
cases that have been filed alleging antitrust, although he knows
that a lot of cases do get filed. He suggested that there are
probably a handful of cases that eventually go to trial and that
have been reported under these statutes.
REPRESENTATIVE OGG inquired as to the specific amount involved.
REPRESENTATIVE WEYHRAUCH responded that the amount was dependent
upon the allegations and the complaint. He said, "I have not
seen the statistics, and they haven't been keeping them for
twenty years."
REPRESENTATIVE OGG replied that gathering the exact information
for five or seven years - or for whatever amount of time - would
be helpful to the committee. He then inquired as to how many
antitrust suits are currently in process.
REPRESENTATIVE WEYHRAUCH responded that until a case is either
dismissed or settled, the number of cases that are in progress
is unknown. He mentioned the one case that has received a lot
of publicity is the Bristol Bay antitrust [class action]
lawsuit, but said that no other case gets reported as heavily as
that one. He added that there may be plenty of cases, "but we
don't know about them."
REPRESENTATIVE OGG said he thought there would be records in the
courts of cases that have been filed under the antitrust
statutes.
REPRESENTATIVE WEYHRAUCH said the database in the court system
provides the name of the party and the case number. He told the
committee that until the case is reported as either settled or
dismissed - and then reported to the [Alaska Judicial Council]
or to the State of Alaska court system - it is not recorded;
it's in a centralized database.
Number 1045
CHAIR SEATON referred to page 2, line 2, AS 45.50.471 - AS
45.50.561, commenting that the analysis in the committee packet
refers to AS 45.50.576, which is a different section, and
therefore lies outside of those parameters.
REPRESENTATIVE WEYHRAUCH responded that the reference pertained
to [Sec. 45.50.539] and also that Section 3 [AS 45.50.576]
referenced a new statute that repeated the amount to be
deposited.
CHAIR SEATON then asked if page 2, line 2, was similar to [AS
45.50.576].
REPRESENTATIVE WEYHRAUCH confirmed that this was so.
Number 1175
REPRESENTATIVE GUTTENBERG said that a troubling aspect of the
bill was that of limiting the antitrust cases to fisheries. He
gave the example of people in Fairbanks reviewing gas-pricing
cases; if those prevailed or if there were some findings, then
those monies would then go to ASMI. In looking at HB 131, with
a central deposit of $40 million, he asked if this was a one-
time grant or, as an ongoing program, would be funded on a
yearly basis.
REPRESENTATIVE WEYHRAUCH said he saw this as a one-time
appropriation. He said that the legislature and political
pressure would need to be "brought to bear" to determine whether
the legislature would even initially pass HB 131. He repeated
that the legislature would have no obligation to appropriate
money to ASMI under this bill, the companion bill, or any future
bill. It would be up to the lobbying efforts of the commercial
fishing industry to say, "The legislature made a deal and it
intended to appropriate this money out." If there were oil or
gas interests in a district that required a portion of the funds
received under this mechanism, then that rationalization would
be applied to obtain a portion of the money. The legislature
would not be bound by this intent language at all.
REPRESENTATIVE WILSON suggested that since this was being
referred to Judiciary, the decision that currently needs to be
made is whether the money would go to ASMI, and if so, to then
pass the bill and allow the next committee of referral to
address the bill in more detail.
REPRESENTATIVE WEYHRAUCH explained that the bill was referred to
this committee because seafood processors were originally
targeted, although that has since been deleted in the proposed
CS. The referral was also due to the intent language; it's the
policy decision of the committee to determine whether the
intention is for [the money] to go to ASMI or not. He said his
feeling is that money isn't found and that industry generates
money, or else "we have to tax."
Number 1350
CHAIR SEATON asked if the retroactivity clause on page 3 [line
2] included the Bristol Bay lawsuit.
REPRESENTATIVE WEYHRAUCH confirmed that this would be included,
adding that this policy decision also needs to be made.
Number 1415
CATIE BURSCH, Bristol Bay setnetter, said she was representing
herself and commended Representative Weyhrauch for taking steps
to help the wild salmon industry in Alaska. She said her
understanding was that ASMI markets all Alaskan seafood and she
doesn't think that ASMI could target its money specifically to
just salmon. She said her other concern was that although the
intent was to market wild salmon, funds might be used for other
things such as fish farming, should it become legal in Alaska,
since there was nothing in place to stop something like that
from happening.
Number 1609
MS. BURSCH objected to a perception of the Bristol Bay price-
fixing suit as "hitting the lottery," resulting in the state's
receiving money. She said, if the prices were fixed, then that
money had been worked for and should have been paid years ago.
Ms. Bursch said she wondered whether the state should be more
vigilant regarding price fixing in order to protect industries.
She also expressed concern over the large increase of money that
ASMI would receive, saying that the organization might not be
prepared to handle that amount of money, and inefficiencies may
be the result. She concluded by saying that if the amount was 5
percent and could be targeted specifically towards marketing
wild salmon, she would be in support of HB 130. She stated that
it was important to protect the wild salmon industry in the
future and to keep the fish farms out of Alaska.
Number 1757
CLYDE (ED) SNIFFEN, JR., Assistant Attorney General, Fair
Business Practices Section, Civil Division (Anchorage),
Department of Law, said he was primarily responsible for
enforcing Alaska's consumer protection and antitrust statutes.
He referred to treble damages and clarified that those damages
are not regularly awarded in antitrust suits. The statute only
allows an award of treble damages if one can prove that the
conduct by the violator was willful. He explained that the
willfulness requirement is fairly onerous and it must be shown
that someone acted intentionally or willfully to violate the law
before treble damages are awarded. He noted that this feature
in the antitrust statute is very different from the punitive
damages tort reform that Representative Weyhrauch spoke about.
Number 1838
MR. SNIFFEN said that another portion of the bill that causes
concern to the state is that the state itself would be included
within these provisions. He said that Alaska joins with other
states as well as pharmaceutical companies, automobile
manufacturers, and others who are sued for violations of
antitrust statute. Sometimes these result in judgments or
settlements and the money is designated for use towards consumer
protection, education, and enforcement. He suggested that it
would be desirable to carve those types of actions out of this
bill so that when the state is actually bringing the action,
monies recovered by the state would not be subject to the 15
percent, or $40 million, disgorgement to ASMI.
Number 1884
MR. SNIFFEN said that he doubted the constitutionality and
enforceability of the retroactivity provisions of HB 130 and
stated that it would be tricky to use this vehicle for recovery,
if there is one, in the Bristol Bay lawsuit. In response to a
question from Chair Seaton, he confirmed that the 15 percent or
$40 million would apply for any judgment, whether or not treble
damages were awarded.
REPRESENTATIVE OGG repeated the questions he had previously
asked of Representative Weyhrauch as to the number of antitrust
lawsuits that have been filed over the past 20 years.
MR. SNIFFEN reported that he had been in his position for the
past three years and during that time, the state had filed
approximately eight antitrust suits, most of which were multi-
state litigation claims. He said he didn't know if his office
had filed more than approximately one dozen antitrust lawsuits
in the past 20 years, but he does know that in the private
sector, he suspects that there are a fair number of suits filed
that have antitrust allegations contained within them. He said
that this bill doesn't have a mechanism that requires reporting
of those specific cases, other than the current court system of
tracking settlements. He said that perhaps there could be a
different way of tracking these cases, in the future.
REPRESENTATIVE OGG asked what the total amount of the awards
might be.
Number 2065
MR. SNIFFEN replied that in a fairly recent pharmaceutical
price-fixing case that involved the state, about $300,000 in
damages was recovered. In a different case filed against an
auto manufacturer several years ago, $0.5 million was recovered.
In three pending antitrust lawsuits, currently in various stages
of settlement involving national companies, pharmaceuticals, and
patent issues, the expected recovery is in the $200,000-to-
$400,000 range. He summarized that in the past three years,
recovery in antitrust cases has approximated $700,000.
Number 2120
REPRESENTATIVE BERKOWITZ noted that most of the larger cases are
class action [suits]; he referenced the language, "if a person
receives an award, the court shall require 15 percent or $40
million," and asked how a class action relates to that
provision. He said if there is a very large class action, the
aggregate amount that the state could collect would exceed $40
million.
MR. SNIFFEN replied that this would depend upon the definition
of "person" in the bill. For example, if "person" included the
State of Alaska, then whatever damages were recovered would be
subject to the 15 percent or the $40 million payout. He said,
"Most of the cases we bring, we bring in a parens patriae action
on behalf of consumers in Alaska; ... there are also additional
private plaintiffs who have put together classes of people who
opt out of the state's representation and choose to be
represented by private parties." He said that he suspects that
those persons would be subject to this rule, individually. Mr.
Sniffen said that "persons" could be defined to mean every
individual person, regardless whether he/she was (indisc.) ...
received an award of damages.
Number 2205
REPRESENTATIVE SAMUELS asked if the 15 percent applied to any
judgment or applied only if the triple damages were awarded.
REPRESENTATIVE WEYHRAUCH responded that it is an award of
damages.
CHAIR SEATON said the main question before the committee was the
intent language and that at least from the attorney general's
opinion, it sounded like this would not apply to the Bristol Bay
lawsuit.
REPRESENTATIVE WEYHRAUCH said he had previously indicated that
he wanted to work with Representative Ogg, in House Judiciary
Standing Committee, on the retroactive effective date, since
that was an expressed concern. He said this was a legal issue,
and that although legislators could discuss it, it would remain
unclear until receiving the judge's opinion.
Number 2309
REPRESENTATIVE SAMUELS mentioned that he didn't think the bill
should be moved out of committee with the intent language
specifying that all of the money would be going to ASMI; he said
that he had difficulty with the intent language in the proposed
CS.
REPRESENTATIVE WEYHRAUCH pointed out that this was the same
language that was in the original bill.
REPRESENTATIVE SAMUELS said the original bill was tighter
regarding the seafood processors and that in the proposed CS,
the gate had "been opened up."
CHAIR SEATON asked if Representative Samuels was having
difficulty with the specification that 15 percent of damages
from, for example, pharmaceutical- or car-related lawsuits would
be going towards ASMI.
REPRESENTATIVE SAMUELS confirmed that he was having difficulty
with this.
Number 2377
REPRESENTATIVE WILSON asked for further clarification of
Representative Samuels' concern.
Number 2384
REPRESENTATIVE WEYHRAUCH explained his understanding that the
intent of the original bill had indicated that if there were to
be treble damages against a seafood processor, if harm had been
done, then monies would go to the general fund and then, in
turn, would be appropriated to ASMI. The proposed CS removes
the seafood processor as the specific party in the antitrust
case. He said he thought that Representative Samuels wanted to
remove the specific appropriation to ASMI so that money could be
applicable to any program.
REPRESENTATIVE SAMUELS confirmed that this was the case. He
asked, if a pharmaceutical company or the oil industry was being
sued, why that money would necessarily go to ASMI.
REPRESENTATIVE WILSON asked if the language would be less
objectionable if it focused on the seafood industry.
REPRESENTATIVE SAMUELS noted that in the original bill there was
a connection, but that the proposed CS is basically a tort bill
and has nothing to do with the fishing industry.
REPRESENTATIVE WILSON asked if the desire was to tighten up the
bill so that it pertained to the seafood industry or if the
desire was that it "never go to ASMI."
Number 2468
REPRESENTATIVE SAMUELS [offered Amendment 1]. He said he would
like to delete [page 1, lines 9-11].
REPRESENTATIVE SAMUELS explained that he'd also like to discuss
in the House Judiciary Standing Committee what to do with the 15
percent going to the state. He commented on the lack of
connection regarding punitive damages, brought up the question
of what to pick as the recipient of the funds, and asked, "Why
pick ASMI?"
Number 2500
REPRESENTATIVE BERKOWITZ commented that these treble damages
were properly characterized as punitive damages and that with
these kinds of damages, the underlying theory is that there's
been an injury to the state or to the people of the state. He
said he thought there was a very strong argument, since the
state would have been injured, that the state ought to be the
beneficiary. He said, "But it seems to me that the theory is
that if the state is injured, the state should recover,
particularly in the area where it was injured." He offered that
the problem seemed to be a "lack of nexus, as some lawyers might
say."
CHAIR SEATON questioned whether testimony from the attorney
general indicated that this didn't apply only to treble damages,
but would apply to any damages.
REPRESENTATIVE BERKOWITZ agreed that in Section 2 there was
applicability to all damages; he said this issue was problematic
and that he expected it would be addressed in House Judiciary
Standing Committee because it's conceivable that damages are
acquired that are not the full extent of damages and would then
be required to (indisc.).
Number 2560
CHAIR SEATON pointed out that the committee was looking at
whether the desire was to focus HB 130 on "having a lawsuit
against a seafood processor" or to remove that legislative
intent, which would mean that the bill would have nothing to do
with fisheries.
REPRESENTATIVE WEYHRAUCH referred to this as being a policy call
and highlighted the issue as follows:
Number one, do you want to adopt the original bill,
which has as its formula for collecting damages - only
against seafood processors - in which case
Representative Samuels would leave in Section 1?
That's the first issue. If you adopt the proposed CS,
which removes seafood processors as a target, then do
you also remove Section 1, which is the intent to have
the money appropriated to ASMI, and then have the
appropriation debate take place in a separate context?
This is only a financing, a funding mechanism for the
state. The policy question is, do you want to keep
seafood processors in the bill, and therefore [the]
legislative intent, or do you want to adopt the
[proposed CS], in which case, Section 1 would be
removed.
REPRESENTATIVE BERKOWITZ offered that the underlying policy
issue is how to fund ASMI.
Number 2707
REPRESENTATIVE WEYHRAUCH said that fundamentally HB 130 is an
ASMI-funding bill to market wild salmon because wild salmon is
not being sufficiently marketed in Alaska; the financing
mechanism is the central concern.
CHAIR SEATON voiced appreciation of that concern, adding that
there was an attempt being made to balance [the needs of] the
seafood industry and the [funding] mechanism.
REPRESENTATIVE BERKOWITZ asked what the current ASMI budget was
and what amount of funding was needed.
REPRESENTATIVE WEYHRAUCH said that if ASMI was going to compete
on a worldwide basis, matching dollar for dollar, the need would
be $70 million.
REPRESENTATIVE BERKOWITZ asked approximately what the current
revenues were.
REPRESENTATIVE WEYHRAUCH said his understanding was that there
was not a general fund appropriation to ASMI. He said someone
else could address the issue of revenue pertaining to taxes -
such as the raw fish tax and federal taxes.
REPRESENTATIVE BERKOWITZ said something successfully done
pertaining to power cost equalization was "a fund that was
created from which a revenue stream helped to ensure a level of
funding." He then added, "The minority doesn't control the
Constitutional Budget Reserve (CBR), but it might be a good
avenue for creating that kind of fund, at least in the House."
REPRESENTATIVE WILSON reiterated that the salmon industry is in
dire trouble and that ASMI doesn't have the funds to offer much
assistance; she said she thought it was important to help with
the situation.
Number 2835
REPRESENTATIVE SAMUELS offered his belief that the proposed CS
was before the committee and said the intention of Amendment 1
was to eliminate Section 1.
CHAIR SEATON clarified that this would eliminate the intent of
the bill to direct funds towards ASMI.
Number 2850
REPRESENTATIVE WILSON objected.
REPRESENTATIVE SAMUELS said he was back to the same argument,
which is, if the oil industry was sued, why wouldn't that be
directed to education, the state troopers, nurses, or other
entities ... "why pick just one"; he said he didn't "get the
connection" [to ASMI].
REPRESENTATIVE WILSON suggested fixing the bill in order to make
that connection.
The committee took an at-ease from 9:25 a.m. to 9:28 a.m.
Number 2899
REPRESENTATIVE SAMUELS withdrew Amendment 1.
REPRESENTATIVE SAMUELS moved to rescind actions in adopting the
proposed CS, which would thereby put HB 130, the original bill,
back on the table.
Number 2930
REPRESENTATIVE OGG objected. He said that in speaking with
Representative Weyhrauch about the bill and in listening to
testimony today from Ed Sniffen, in particular, he believed the
retroactivity clause had some constitutional problems and he
would rather have the drafter come up with another proposed CS
to address those problems. He said another problem was that the
way the bill is drafted, it doesn't solely attack the triple
damages, which, although they are akin to punitive damages, are
not the same thing. He said the state would be taking
compensatory damages from people who had actually lost
something, and he didn't agree with that aspect. He said the
basis of the bill and the companion bill was focused on one
particular suit, so the retroactivity date was bothersome and
didn't make the state look good.
TAPE 03-23, SIDE B
CHAIR SEATON asked if Representative Ogg wanted to offer these
as amendments.
REPRESENTATIVE OGG said he'd be happy to do so, but wanted to
give the sponsor the opportunity to make those corrections.
REPRESENTATIVE WEYHRAUCH said he'd worked on the retroactivity
date and that it was included to the extent permitted by the
state and federal constitutions.
CHAIR SEATON said that Representative Ogg's intent was a policy
concern rather than a legal concern, so the question was not
whether the attorney general or [Legislative Legal and Research
Services] would prevail in the end.
REPRESENTATIVE WEYHRAUCH asked if this meant the removal of
Section 6.
CHAIR SEATON clarified that there was an objection to putting
HB 130 back on the table in its original form; the current
discussion involved whether, by removing retroactivity and also
referencing this to triple damages, the objection would then be
satisfied.
REPRESENTATIVE OGG said that conceptually he did not have a
problem offering amendments that would strictly apply this to
triple damages, and second, that the retroactivity clause would
not be applicable, thereby preventing this bill from affecting
any present lawsuits that are filed or ongoing.
REPRESENTATIVE WILSON asked if the motion was to just get the
bill before the committee.
CHAIR SEATON clarified that there was an objection to putting
the [original] bill on the table, and that Representative Ogg
was explaining his objections.
REPRESENTATIVE SAMUELS agreed that the state should not be
taking "a piece of the pie" unless the damages were tripled.
Number 2758
REPRESENTATIVE WEYHRAUCH stated what he thought were the
conceptual amendments. He said that the motion is to have
HB 130 before the committee and that Conceptual Amendment [2]
deletes Section 6, whereas Conceptual Amendment [3] allows for
the damages, the portion paid as damages, to be the treble award
of damages, not the compensatory award. [Conceptual Amendment 3
adds the language "of the amount of the award that exceeds
actual damages" to Section 3, subsection (c), after the word
"less".] He told the committee he was fine with the adoption of
these two conceptual amendments.
Number 2730
REPRESENTATIVE OGG stated that with the inclusion of Conceptual
Amendments [2 and 3], he was withdrawing his objection.
CHAIR SEATON clarified that HB 130 [rather than the proposed CS]
was before the committee, with the sponsor agreeing with two
conceptual amendments. He restated that this would be the
removal of Section 6, and that the damages would refer to the
treble-damage portion relating to the compensatory damages.
Number 2692
REPRESENTATIVE WILSON objected for discussion purposes. She
said it was important to include "triple" to make sure
fishermen know that the intent isn't to get fishermen's money
that is "due them." She said, if it is ensured that the state
would take part of it only if it is tripled, fishermen would
realize that state isn't trying to "get their money."
REPRESENTATIVE WILSON then withdrew her objection.
Number 2674
REPRESENTATIVE WILSON moved to report HB 130, as amended out of
committee with individual recommendations [and the accompanying
zero fiscal note]. There being no objection, CSHB 130(FSH) was
reported from the House Special Committee on Fisheries.
HCR 10-RESTORATION OF RIPARIAN HABITAT
CHAIR SEATON announced that the next order of business would be
HOUSE CONCURRENT RESOLUTION NO. 10, Relating to restoration of
riparian habitat that is vital to the fisheries resources of the
state.
Number 2558
REPRESENTATIVE KELLY WOLF, Alaska State Legislature, speaking as
the sponsor of HCR 10, offered the historical perspective that
in the early 1990s habitat wasn't talked about within
communities or in departments [as it is today]. He said that
understanding the importance of riparian habitat has grown over
the past 8 to 10 years. He indicated that HCR 10 asks that
state agencies, federal agencies, communities, and organizations
understand that the fishery resource is an important part of
Alaska's traditional consumptive use and enjoyment, and provides
income to the state, saying that HCR 10 asks for recognition of
this via "working together."
Number 2466
REPRESENTATIVE WOLF said a key phrase that he liked to use was
"it's easier to educate than it is to regulate." He said that
HCR 10 promotes stewardship through communities and allows
agencies - federal, state, municipalities, and boroughs - to
expand their ability to protect riparian habitat for all user
groups. He explained that this resolution is about promoting
agencies' understanding that there are options for partnerships
with community groups that would bring in corporate funding, and
promote restoration and the protection of the riparian habitat.
Number 2392
REPRESENTATIVE GUTTENBERG inquired about the correlation between
HCR 10 and Executive Order 107 (EO 107), saying that HCR 10 was
based on healthy habitat and fisheries, while EO 107 was
eliminating that program.
Number 2350
REPRESENTATIVE WOLF replied that EO 107 involved moving the
Division of Habitat and Restoration from the Alaska Department
of Fish & Game (ADF&G) to the Department of Natural Resources
(DNR), while HCR 10 was focused on agencies working together to
raise the awareness of the importance of the riparian habitat.
He noted that the governor has acknowledged the importance of
habitat and resources. He said he would like to keep HCR 10 as
far away from EO 107 as "China is from Alaska" or even further.
Number 2300
REPRESENTATIVE GUTTENBERG commented that he didn't know if it
were possible [to separate the issues].
Number 2280
REPRESENTATIVE WOLF asked if the committee wanted to view a
portion of a videotaped TV program that was developed by a
program that he [Representative Wolf] used to run. He said that
the videotape demonstrates what can be accomplished from
cooperation and working together.
[The committee watched a few minutes of a videotape entitled
"Bringing the Nation to Alaska."]
Number 2142
REPRESENTATIVE WOLF said that riparian habitats involve
partnerships, and he explained that this particular project was
done in 2001 as part of the "DOT Highway Improvement Project"
and was done between mile 39 and 45 in Cooper Landing, involving
the development of the gravel pit as a source of gravels. He
said the project involved some 29 different agencies working
together. He said the Youth Restoration Corps was involved due
to corporate support and that it involved 137 sponsors,
nationwide. There were 84 teenagers from around the nation,
involving 10 states including Alaska - all promoting
stewardship. He added that there was no state money involved
whatsoever.
Number 2090
REPRESENTATIVE OGG moved to report HCR 10 out of committee with
individual recommendations and the accompanying zero fiscal
notes. There being no objection, HCR 10 was reported from the
House Special Committee on Fisheries.
ADJOURNMENT
There being no further business before the committee, the House
Special Committee on Fisheries meeting was adjourned at
9:50 a.m.
| Document Name | Date/Time | Subjects |
|---|