Legislature(2017 - 2018)GRUENBERG 120
04/02/2018 07:00 PM House JUDICIARY
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| Start | |
| HB355 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
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= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| += | HB 355 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
April 2, 2018
7:00 p.m.
MEMBERS PRESENT
Representative Matt Claman, Chair
Representative Jonathan Kreiss-Tomkins, Vice Chair
Representative Louise Stutes
Representative Gabrielle LeDoux
Representative David Eastman
Representative Chuck Kopp
MEMBERS ABSENT
Representative Lora Reinbold
Representative Charisse Millett (alternate)
Representative Tiffany Zulkosky (alternate)
COMMITTEE CALENDAR
HOUSE BILL NO. 355
"An Act relating to the crime of criminally negligent burning;
relating to protection of and fire management on forested land;
relating to prohibited acts and penalties for prohibited acts on
forested land; and providing for an effective date."
- MOVED CSHB 355(RES) OUT OF COMMITTEE
PREVIOUS COMMITTEE ACTION
BILL: HB 355
SHORT TITLE: FIRE;FOREST LAND; CRIMES;FIRE PREVENTION
SPONSOR(s): REPRESENTATIVE(s) GUTTENBERG
02/16/18 (H) READ THE FIRST TIME - REFERRALS
02/16/18 (H) RES, JUD
02/28/18 (H) RES AT 1:00 PM BARNES 124
02/28/18 (H) Heard & Held
02/28/18 (H) MINUTE(RES)
02/28/18 (H) RES AT 6:00 PM BARNES 124
02/28/18 (H) Heard & Held
02/28/18 (H) MINUTE(RES)
03/05/18 (H) RES AT 1:00 PM BARNES 124
03/05/18 (H) Heard & Held
03/05/18 (H) MINUTE(RES)
03/09/18 (H) RES AT 1:00 PM BARNES 124
03/09/18 (H) Moved CSHB 355(RES) Out of Committee
03/09/18 (H) MINUTE(RES)
03/12/18 (H) RES RPT CS(RES) NT 4DP 3NR 1AM
03/12/18 (H) DP: LINCOLN, DRUMMOND, JOSEPHSON, TARR
03/12/18 (H) NR: BIRCH, PARISH, TALERICO
03/12/18 (H) AM: RAUSCHER
03/14/18 (H) JUD AT 1:00 PM GRUENBERG 120
03/14/18 (H) Heard & Held
03/14/18 (H) MINUTE(JUD)
03/19/18 (H) JUD AT 1:00 PM GRUENBERG 120
03/19/18 (H) Heard & Held
03/19/18 (H) MINUTE(JUD)
03/26/18 (H) JUD AT 1:00 PM GRUENBERG 120
03/26/18 (H) Scheduled but Not Heard
03/30/18 (H) JUD AT 1:00 PM GRUENBERG 120
03/30/18 (H) <Bill Hearing Canceled>
04/02/18 (H) JUD AT 1:00 PM GRUENBERG 120
04/02/18 (H) JUD AT 7:00 PM GRUENBERG 120
WITNESS REGISTER
CHRIS MAISCH, State Forester
Division of Forestry
Department of Natural Resources
Fairbanks, Alaska
POSITION STATEMENT: During the hearing of CSHB 355, answered
questions.
AARON PETERSON, Assistant Attorney General
Fish & Game Section
Office of Special Prosecutions
Criminal Division
Department of Law (DOL)
Anchorage, Alaska
POSITION STATEMENT: During the hearing of CSHB 355, answered
questions.
ACTION NARRATIVE
7:00:13 PM
CHAIR MATT CLAMAN called the House Judiciary Standing Committee
meeting to order at 7:00 p.m. Representatives Claman, Kopp,
Stutes, Kreiss-Tomkins, and Eastman were present at the call to
order. Representative LeDoux arrived as the meeting was in
progress.
HB 355-FIRE;FOREST LAND; CRIMES;FIRE PREVENTION
7:00:37 PM
CHAIR CLAMAN announced that the only order of business would be
HOUSE BILL NO. 355, "An Act relating to the crime of criminally
negligent burning; relating to protection of and fire management
on forested land; relating to prohibited acts and penalties for
prohibited acts on forested land; and providing for an effective
date." [Before the committee was CSHB 355(RES).]
CHAIR CLAMAN referred to the hearing on 3/19/18 and noted that
the committee considered Amendments 1-3, Amendment 1 was adopted
and Amendments 2, and 3, failed to be adopted, and during the
2:21 p.m. meeting today, Amendment 4 failed to be adopted.
7:01:32 PM
REPRESENTATIVE EASTMAN moved to adopt Amendment 5, labeled 30-
LS1382\J.6, Bruce/Radford, 3/16/18, which read as follows:
Page 4, line 1:
Delete "knows of a fire or"
Insert "[KNOWS OF A FIRE OR]"
REPRESENTATIVE KREISS-TOMKINS objected.
7:01:41 PM
REPRESENTATIVE EASTMAN referred to Section 12, page 3, line 30
through page 4, line 3, which read as follows:
Sec. 12. AS 41.15.110 is amended to read:
Sec. 41.15.110(a). Uncontrolled spread of
fire; leaving fire unattended. (a) A person who knows
of a fire or sets a fire on forested land owned,
possessed, or controlled by the person, shall exercise
due care to prevent the uncontrolled spread of the
fire.
REPRESENTATIVE EASTMAN commented that separating that language
from someone who actually sets a fire or participates in setting
a fire, it is appropriate they should exercise "all due care to
prevent the uncontrolled spread of the fire." Except, he
questioned how the legislature can legally require a person who
receives an alert on their iPhone that there is a fire on their
property across the state to prevent the uncontrolled spread of
the fire. In the event a person sets a fire, then they own the
fire and are responsible for the fire, but if someone else sets
the fire (indisc.) be responsible for making sure that fire does
not spread in an uncontrolled manner.
7:03:38 PM
REPRESENTATIVE KOPP referred to Representative Eastman's
example, that if a person becomes aware of a fire on land owned
by them that is across the state, his read is that the person's
knowledge of that fire requires that the person has to be in
control of the land. He asked whether the person is actually in
control of the land if they are not directly at the fire in
person. He then referred to the term "due care" wherein the
landowner notified someone that they were not present to observe
the fire but were aware of the fire, and asked whether in
Representative Eastman's mind, "due care" would be carried out
if the person notified the fire control authorities in the area
or any other emergency authority.
REPRESENTATIVE EASTMAN answered that Representative Kopp "was
"not quite catching the meaning of the language before." He
noted that [page 4, lines 1-2] read: "forested land owned,
possessed, or controlled", and Representative Kopp was "just
reading 'or' into an 'and' there," meaning that if it was
controlled by a person, then they should be doing certain
things. Actually, he said, it is saying that if the land is
"just owned by you, controlled by someone else, or whatnot," the
language before the committee is that the person still has every
bit of the responsibility of someone who either possesses or
controls "that." He opined that "and" would be preferable
reading because there is a natural logic that goes from that
[language]. He reiterated that "owned, possessed, or
controlled" is expansive.
CHAIR CLAMAN stated that for purposes of this amendment, there
is no language changing "owned, possessed, or controlled" to
"owned, possessed, and controlled". The simple question is
whether to adopt this amendment with the language "owned,
possessed, or controlled", he pointed out.
REPRESENTATIVE EASTMAN reiterated that if the discussion is
about exercising "due care" for someone setting the fire, it
makes perfect sense. Although, he said, Representative Kopp's
question was more about, what is the due care for someone who
simply knows about a fire that is not under their control. This
discussion is about a heating fire, for example, and "you might
not have anything to do with it other than the fact that you
heard about it, or whatnot," he asked, what is the due care at
that point because calling 911 would not necessarily be
appropriate, he said.
7:07:21 PM
REPRESENTATIVE KOPP commented that "due care" in the language
alleviates the concern of the maker of this amendment because
"due care" is a term used to describe the basic speed rule,
which is any time a person is driving faster than the conditions
permit, such as weather and snow, sleet, or fog limiting
visibility, and so forth. A person can drive under the speed
limit and still be in violation of the basic speed rule because
the person was not exercising "due care." He further explained
that "due care" is a term law enforcement uses when citing
people for being responsible in some manner for creating a
dangerous circumstance. He offered that after listening to the
amendment maker and due care, if someone was aware of a heating
fire on property they owned, possessed, or controlled, that
person is not exposing themselves to liability unless the person
believed the heating fire was somehow not attended or had the
possibility of becoming dangerously expansive quickly. He
related that the manner in which the language is written, the
amendment maker's concern is met by the way it is read in
context.
7:09:06 PM
REPRESENTATIVE KREISS-TOMKINS acknowledged that his question did
not relate directly to Amendment 5, but in looking at AS
41.14.110, CSHB 355 removes all of the "if such and such person
does this, they are guilty of a misdemeanor" language, and asked
what Sec. 41.15.110 does in that case.
CHRIS MAISCH, State Forester, Division of Forestry, Department
of Natural Resources, asked Representative Kreiss-Tomkins to
repeat his question regarding the current AS 41.15.110 and
leaving a fire unattended.
REPRESENTATIVE KREISS-TOMKINS pointed out that AS 41.15.110(a)
and (b) lay out, "if you do this or you do that, you are guilty
of a misdemeanor," and CSHB 355 eliminates the "you're guilty of
a misdemeanor" language, and it appears to simply create
definitions. He related that he is trying to understand what AS
41.15.110 does if CSHB 355 passes.
MR. MAISCH responded that those sections as to the type of
penalties are addressed later in the new version of CSHB 355.
He explained that it updates all of the statutes to establish a
bail schedule as well as misdemeanor and felony offenses, which
is why it is struck, at this point, in the language.
7:11:29 PM
REPRESENTATIVE KREISS-TOMKINS said that given the language
Representative Eastman is homing in on and the scenario he
described relating to the language in Amendment 5, he asked
whether his colleagues have encountered a scenario where someone
knows of a fire, but isn't reasonably responsible by any common-
sense definition, but the person then becomes criminally liable
for that fire.
MR. MAISCH answered that he is not aware of a scenario described
by Representative Kreiss-Tomkins.
7:12:14 PM
REPRESENTATIVE LEDOUX noted that when she first looked at
Amendment 5, she thought it was with regard to some sort of
liability on a person who had no connection with the property,
and failed to report. She pointed out that under Alaska
criminal law, unless someone has a duty to someone or something,
the state generally does not make them liable if they are
irresponsible and do not care to report it to the police or the
fire department. Except, she since realized that it only
relates to land "owned, possessed, or controlled" by the person,
it makes sense to her that those people would have a duty to use
common sense. She said she will not support Amendment 5.
7:13:29 PM
REPRESENTATIVE EASTMAN opined that the committee is reading that
it is about some type of dangerous fire, or likely to be
dangerous fire, or uncontrolled fire, and it is not simply
dealing with the existence of a fire. In the event the
discussion is about an uncontrolled fire, there should be a duty
of care to deal with the fire if it is on a person's property.
Except, he said, this is simply talking about the fact that it
is a plain fire and the person, by implication, did not start
the fire or have any part in starting the fire. He said he is
not supportive of attaching criminal liability in that
situation.
REPRESENTATIVE KREISS-TOMKINS maintained his objection.
7:14:14 PM
A roll call vote was taken. Representative Eastman voted in
favor of the adoption of Amendment 5. Representatives Kreiss-
Tomkins, Kopp, Stutes, LeDoux, and Claman voted against it.
Therefore, Amendment 5 failed to be adopted by a vote of 1-5.
7:14:53 PM
REPRESENTATIVE EASTMAN moved to adopt Amendment 6, labeled 30-
LS1382\J.7, Bruce/Radford, 3/16/18, which read as follows:
Page 4, lines 16 - 17:
Delete ", investigate,"
REPRESENTATIVE KREISS-TOMKINS objected.
7:15:07 PM
REPRESENTATIVE EASTMAN turned to [CSHB 355] Sec. 13. [AS
41.15.120, page 4, lines 15-21], and explained that this
provision deals with "failure to assist in preventing or
suppressing fires," and he paraphrased the current language as
follows:
If an officer or employee of the United States or the
state who is authorized to prevent or suppress fires
requests a person to assist in the prevention or
suppression of a fire and informs the person of the
officer or employee's official status, and the person
fails to assist the officer or employee in the
performance of duties, the person is guilty of a
misdemeanor.
REPRESENTATIVE EASTMAN noted that if someone is not authorized
to prevent and suppress fires, those individuals should not be
added to the list of people who have authority to order a person
to do something and the person becomes criminally liable if they
do not do what was ordered, he said. For someone who cannot
prevent and suppress fires and ordering someone to help them
prevent and suppress fires is "a little bit of a leap," he
described.
7:17:20 PM
REPRESENTATIVE LEDOUX asked Mr. Maisch whether, under current
law, he could request someone who had nothing to do with the
starting of the fire to assist.
MR. MAISCH responded that under current law, one of his fire
staff could make a request of someone to help, such as call 911
to report the fire, while the fire prevention officer (FPO)
undertakes suppression action. All of his officers do have the
authority to suppress and control fires in addition to
investigate, he advised.
7:18:23 PM
REPRESENTATIVE LEDOUX asked, "So, is that normal?" She then
asked Representative Kopp that during the time he was a law
enforcement officer, whether a bystander could be arrested if
they refused to abide by the officer's instructions, even if
they had nothing to do with the crime. She commented that that
is not how she thought Alaska's laws worked.
REPRESENTATIVE KOPP answered yes, it is called a failure to
respond to request for assistance at the direction of a
uniformed police officer. He advised that it is actually a
misdemeanor offense to fail to respond to that request, and it
has been a while since he read that section of law but it has
been on the books for many decades. In response to the
immediacy of need for help, he emphasized that law enforcement
is a collective societal responsibility and there are times when
all hands-on decks are necessary to safely bring a situation to
a safe resolution. Personally, he never used that provision,
and he commented that by adding the term "investigate," the
discussion is definitely about uniformed and badged deputy fire
marshals or fire marshals who are sworn peace officers. By
having "them in there" indicates that it is logically consistent
with Title 11, in that if the urgency of suppressing that fire
required immediate assistance from the person who started the
fire, there could be criminal liability attached to the person
for failing to supply that assistance. The law has always
recognized the defense of a person being physically unable or
other issues that can cause a person to be immune from
prosecution, he said.
7:21:29 PM
CHAIR CLAMAN offered a real-world example wherein the Twin
Creeks Fire on Kodiak Island picked up and started racing into
forested lands owned by the Kodiak Island Borough. A timber
harvesting operation was working on Kodiak Island at the time
and the fire folks immediately contacted the harvesters
requesting assistance. The harvesting operation stopped to
provide equipment in mobilizing the firefighters because it was
one of the few sources on Kodiak Island that had any type of
equipment available to respond. To the extent the operation
incurred costs, it went back later and requested reimbursement,
but this company pretty much stopped everything to fight the
fire.
7:22:26 PM
REPRESENTATIVE LEDOUX offered that in civil tort liability,
there is absolutely no obligation to help someone, and a person
will never be civilly liable for failure to assist someone even
if the assistance is simply making a telephone call.
REPRESENTATIVE KOPP commented that he will never argue civil
tort liability, but for many years now in criminal law, failure
to report a violent crime against an adult or a child and having
the knowledge of the crime or that it was ongoing, exposes a
person to misdemeanor penalties.
7:23:38 PM
REPRESENTATIVE LEDOUX opined that that was only if the person
had a duty to the person, for example a doctor, because there
are certain mandatory reporters. She asked, under criminal law,
"would the word 'investigate' be in there?"
REPRESENTATIVE KOPP reiterated that he has not read that statute
in a while and he would have to read it again, but that is one
of things police officers do, they investigate. When he looks
at the term "investigate," he said it elevates this above a
normal fire service officer (FPO) who is there to either prevent
or suppress the fire. "Investigation" rapidly gets into the
criminal arena, and he said he guesses that "you are insinuating
the law enforcement function there, and that is why you are also
consistent with the Title 11 directive." He commented that he
would like to know if his understanding is correct.
CHAIR CLAMAN commented that a question raised by this
conversation is actually whether adding the term "investigate"
makes it a narrower class of people that can exercise authority
to give orders, or whether it makes it a broader class of
people. He noted that this amendment seeks to remove the word
"investigate."
REPRESENTATIVE LEDOUX pointed to the word "or" and said it would
not narrow the class of people.
7:25:31 PM
AARON PETERSON, Assistant Attorney General, Fish & Game Section,
Office of Special Prosecutions, Criminal Division, Department of
Law (DOL), responded that Representative LeDoux was correct
wherein the "or" offsets "investigate" from prevents or suppress
and it would add the class of responders investigating separate
from prevent or suppress fires. In the event the responders
only had authority to prevent fires, for example, they would
have the same authority under this statute as someone who only
had the authority to suppress or to investigate. The FPOs have
the ability and, in fact the duty, to perform all three
functions, he advised. The purpose behind this is that the FPOs
rely on the public's cooperation when trying to determine
whether a fire exists. He offered a hypothetical that the FPOs
believed there was smoke located in a certain area, except the
only entrance to reach the area was blocked by a truck sitting
across the road. The FPOs asked the person to move their truck
so they could get to the fire, and he offered that the person
has a duty to move their truck in that circumstance. Obviously,
he said, without a law creating a duty, the person may simply
say that they are parked there and to give them a traffic ticket
because they would not move their truck.
7:27:22 PM
REPRESENTATIVE LEDOUX referred to circumstances involving the
police officer that Representative Kopp discussed, and asked
whether under Title 11, criminal liability would attach if
someone refused to help someone in an investigation.
REPRESENTATIVE LEDOUX, in response to Chair Claman, answered
that she is interested in any investigation.
MR. PETERSON referred to AS 11.56.720, Refusal to assist a peace
officer or judicial officer, which read as follows:
(a) A person commits the offense of refusing to
assist a peace officer or judicial officer if, upon a
request, command, or order by someone the person knows
to be a peace officer or judicial officer, that person
unreasonably fails to make a good faith effort to
physically assist the officer in the exercise of
official duties.
(b) A person who, without expecting compensation,
assists a person in accordance with this section is
not liable for civil damages as a result of an act or
omission in rendering that assistance. This subsection
does not preclude liability for civil damages as a
result of reckless, wilful, wanton, or intentional
misconduct.
(c) Refusing to assist a peace officer or
judicial officer is a violation.
MR. PETERSON explained that this law creates the duty to respond
appropriately to a request from law enforcement, in their
official capacity, to make a good faith effort and physically
assist the officer if necessary. He then referred to subsection
(b) and advised that it bars civil liability. He offered that
there is an axiom of criminal law that someone has to perform an
affirmative act or omit to do something they are required to do
by law before criminal liability can attach. He said that AS
41.15.120 has, for decades, created that duty for folks to
respond appropriately to an officer's request for prevention and
suppression of fires, and this would add in those that are
investigating.
7:30:01 PM
REPRESENTATIVE LEDOUX asked how Mr. Peterson sees this playing
out as to what additional authority the word "investigate" adds,
and where it comes into play.
MR. PETERSON answered that Mr. Maisch previously advised that
that the FPOs already have authority to prevent and suppress,
and he would have to ask Mr. Maisch whether folks in forestry
are solely authorized to investigate. Inasmuch as the
discussion is about folks with only the authority to
investigate, he referred to his previous hypothetical about the
investigators needing to check a certain area of land but it was
barricaded off. Barriers, he related, are erected because
someone does not want the FPOs coming onto their land, except it
would be necessary in that case to determine where the forest
fire was headed, where the fire started, or whether there was a
forest fire at all, he pointed out. Any situation imaginable
where someone is preventing fire investigators from being able
to do their job and determine what is going on with the fire
would fall under this category, he advised.
7:31:49 PM
REPRESENTATIVE LEDOUX offered a scenario where the location fire
was known and the FPOs were simply investigating for purposes of
who may have started the fire. She related that her scenario
did not appear to be something where all hands-on deck would be
necessary.
MR. PETERSON asked whether her question was, for example, that
after the fact, a fire investigator tried to come onto someone's
land to request the landowner's help in determining what took
place here.
REPRESENTATIVE LEDOUX answered yes, that is what she was asking.
MR. PETERSON submitted that when statutes are read, no word is
read in isolation, "a thing is known by those around it." He
opined that when reading this section in whole, under Title 41,
it applies to FPOs, Division of Forestry, fire investigators who
are in the early stages of their response to a forest fire or
potential forest fire, and this discussion is about the
potential forest fire. He commented that he did not think that
under the constitution the legislature could say that everyone
contacted by an investigator must assist regardless of the stage
of that investigation. He advised that this is very much in
line with the rest of the statute, and it is very much talking
about FPOs and the Division of Forestry responding to fires in
the early stages of potential fires.
7:34:19 PM
CHAIR CLAMAN offered a practical example wherein the source of
the reported smoke was somewhat uncertain, which caused concern
that a fire might be starting and they wanted to determine the
reason for the smoke before it became a forest fire. The
question then becomes whether those fire investigators have the
authority to request assistance during that initial
investigation in determining whether there is a fire. Also,
specifically for the purposes of this amendment, he asked
whether the committee prefers "to not have people that
investigate included amongst the description of people who can
make the requests."
REPRESENTATIVE LEDOUX remarked that she re-read this section
again and while it adds "investigate" to the people who are
authorized to prevent, investigate, or suppress, it is very
clear that the officers need to request a person to assist in
the prevention or suppression of a fire. As opposed, she
continued, to assist in the prevention, suppression, or
investigation of a fire. She said, "I'm actually happy," and
she does not support Amendment 6.
7:35:59 PM
REPRESENTATIVE EASTMAN commented that adding "investigate" is
pointless because it would not affect the FPOs who can already
prevent or suppress, and the discussion is about preventing the
possibility of fires. He opined that the committee is "back-
dooring what we already dealt with in a previous amendment about
going onto somebody's land because now we're giving you the
obligation to help them with preventing a future fire." He
commented that that appears to be a little more than what is
being discussed regarding the "investigate" part, and logically
it doesn't follow that someone who can only investigate will
require someone to help them in preventing or suppressing a fire
when they are not authorized.
REPRESENTATIVE KREISS-TOMKINS maintained his objection.
7:37:05 PM
A roll call vote was taken. Representative Eastman voted in
favor of the adoption of Amendment 6. Representatives LeDoux,
Kreiss-Tomkins, Kopp, Stutes, and Claman voted against it.
Therefore, Amendment 6 failed to be adopted by a vote of 1-5.
7:37:39 PM
REPRESENTATIVE EASTMAN moved to adopt Amendment 7, labeled 30-
LS1382\J.8, Bullard/Radford, 3/16/18, which read as follows:
Page 3, line 16:
Delete "A"
Insert "Except as provided in AS 41.15.130, a
[A]"
Page 4, lines 22 - 27:
Delete all material and insert:
"* Sec. 14. AS 41.15.130 is amended to read:
Sec. 41.15.130. Backfires and burnouts excluded.
AS 41.15.010 - 41.15.040 and 41.15.050 - 41.15.170
[AS 41.15.010 - 41.15.170] do not apply to the setting
of
(1) backfires and burnouts and other burning
or clearing of land [A BACKFIRE] under the direction
of an officer or employee of the United States or the
state who is authorized to prevent or suppress fires;
or
(2) a backfire by a person on land owned by
the person."
CHAIR CLAMAN objected for purposes of discussion.
7:37:47 PM
REPRESENTATIVE EASTMAN referred to Section 14, page 4, lines 22-
27, and noted that the discussion is of backfires and burnouts,
and basically an exemption on lines 24-27, which read as
follows:
do not apply to the setting of backfires, burnouts,
and other burning or clearing of land [A BACKFIRE]
under the direction of an officer or employee of the
United States or the state who is authorized to
prevent or suppress fires.
REPRESENTATIVE EASTMAN stated that the legislation neglected to
include and authorize the landowner to set a backfire to prevent
their property, or neighboring properties, from being burned and
possibly propagating a forest fire.
7:39:11 PM
REPRESENTATIVE LEDOUX requested a description of a backfire and
burnout.
MR. MAISCH responded that backfires and burnouts are fires the
fire suppression crew members actually set in order to burnout
the unburned fuel between an advancing fire and a constructed
control line. A natural feature, such as a river or a road,
will burnout the fuel in front of the fire's approach to lessen
its impact when it hits the control line. He explained that it
makes it easier for the officers to defend that control line and
safer for the fire fighters in that process.
7:40:01 PM
CHAIR CLAMAN asked the impact of this proposed amendment on the
immunity statute.
MR. MAISCH answered that "this change" makes clear that the
discretionary immunity statute does pertain to backfires and
burnouts, and "burnout" is a new term added into this piece of
legislation. Under the current statute, it begins,
"Notwithstanding other provisions of law" which is where the
section regarding discretionary immunity is located. He advised
that the state successfully defended the current statute in a
recent case and the Brewer and the Miller Reach fires both spoke
to this point, but this change makes it absolutely clear that it
does pertain.
CHAIR CLAMAN asked Mr. Peterson whether he would like to add to
the testimony of Mr. Maisch.
MR. PETERSON answered that Mr. Maisch covered it and if that
answered the question, he is content to rely upon Mr. Maisch's
answer.
7:41:40 PM
CHAIR CLAMAN asked whether the administration opposes Amendment
7.
MR. MAISCH responded that the Department of Natural Resources
(DNR) does oppose the amendment.
CHAIR CLAMAN asked Mr. Maisch to explain the reason for its
opposition.
MR. MAISCH replied that it would be rare for a private
individual to have the proper training and knowledge to actually
safely set their own burnout or backfire, and it could cause
safety problems for the fire fighters who are not aware that a
fire might be behind them when they are in front of the fire
working. He related that it could also cause damage to private
homes or businesses which would then be an additional
consequence for that untrained individual to perform that type
of control. Therefore, he said, DNR opposes Amendment 7.
7:42:40 PM
REPRESENTATIVE EASTMAN commented that in this particular
situation, the discussion is solely about private property
rights and someone using their own private property to aid
themselves and their community in preventing their property from
spreading a wildfire. In that situation, he said, the committee
would be wrong in making someone criminally liable when not
allowing them to act in their own best interests. Also, he
related, there are recent news stories where this not being in
statute was used against ranchers to their detriment and to
"ours as well."
CHAIR CLAMAN maintained his objection.
7:43:38 PM
A roll call vote was taken. Representatives Kopp, LeDoux, and
Eastman voted in favor of the adoption of Amendment 7.
Representatives Stutes, Kreiss-Tomkins, and Claman voted against
it. Therefore, Amendment 7 failed to be adopted by a vote of 3-
3.
7:44:08 PM
REPRESENTATIVE EASTMAN moved to adopt Amendment 8, labeled 30-
LS1382\J.9, Bullard/Radford, 3/16/18, which read as follows:
Page 1, line 3, following "land;":
Insert "providing that a person may be arrested
only for a misdemeanor or felony violation of certain
statutes and regulations protecting forested land;"
Page 6, line 14, following "chapter":
Insert "punishable as a misdemeanor or felony"
REPRESENTATIVE KREISS-TOMKINS objected.
7:44:14 PM
REPRESENTATIVE EASTMAN explained that Amendment 8 makes clear
that when discussing an arrest, it is only for a misdemeanor or
a felony, rather than a citation. The legislature does not want
the state's fire service officers "to be known or to be
threatening to other people, or to have other people perceive
them in any other way than they are," he said.
7:45:52 PM
CHAIR CLAMAN asked Mr. Peterson whether issues may be raised as
to Amendment 8.
MR. PETERSON answered that Amendment 8 might raise some
confusion because the text of the amendment says that a person
may be arrested only for "insert: punishable as a misdemeanor or
felony." Therefore, he said, if this were to be adopted, many
of the offenses under Title 41 would be punishable either as a
strict liability violation if there was no mental state, and a
misdemeanor if there was a culpable mental state. He pointed
out that under a broad reading, it could be read to mean that a
violation punishable as a misdemeanor due to a culpable mental
state, if it were charged that way, could give rise to an
arrest, where there is not going to be an arrest for a violation
because there is no possibility of incarceration. He advised
that he does think Amendment 8 could muddy the waters and lead
to some confusion, wherein there is otherwise a pretty clear-cut
delineation between strict liability violation and a misdemeanor
based on mental state.
7:47:29 PM
CHAIR CLAMAN requested a description of a setting in which an
officer may need to arrest a person based on a violation that
does not carry any potential for jailtime where they would still
nevertheless believe there was a need for arrest.
MR. PETERSON answered that he could not describe that setting
because a person would not be arrested on a violation.
MR. MAISCH remarked he concurred with Mr. Peterson's statement.
7:48:38 PM
REPRESENTATIVE LEDOUX opined that by the very nature of a
citation a person cannot be arrested, which is the difference
between a citation and a misdemeanor or felony.
CHAIR CLAMAN commented that the testifiers had confirmed
Representative LeDoux's view.
7:49:11 PM
REPRESENTATIVE KOPP asked to hear clearly from the Department of
Law (DOL) whether Amendment 8 makes it more or less confusing
for law enforcement.
MR. PETERSON responded that Amendment 8 makes it more confusing,
in his opinion, because it could give rise to someone thinking
"this could be punishable as a misdemeanor. I'm charging it as
a violation, which I can't arrest for, but it could be
punishable as a misdemeanor, so I can arrest." He verified that
Amendment 8 would cause confusion which otherwise would not
exist.
7:50:03 PM
REPRESENTATIVE EASTMAN related that the discussion is that
officers now have the ability to arrest a person who violates a
provision of this chapter, and that (indisc.) not confusing. In
the event a person violated a provision of this chapter, the
authority has been given that the person may be arrested. He
opined that if that is not the committee's intention, it should
be changed and not give the public the apprehension that they
could be arrested for violating a provision of this chapter.
Amendment 8 was created to make it clear in some manner, he
said.
REPRESENTATIVE KREISS-TOMKINS maintained his objection.
7:51:12 PM
A roll call vote was taken. Representative Eastman voted in
favor of the adoption of Amendment 8. Representatives Kopp,
Stutes, LeDoux, Kreiss-Tomkins, and Claman voted against it.
Therefore, Amendment 8 failed to be adopted by a vote of 1-5.
7:51:43 PM
CHAIR CLAMAN ruled that Amendment 9, labeled 30-LS1382\J.10,
Radford, 3/16/18, rolls Amendments 2-8 into a single amendment,
and because the committee previously reviewed all of the issues
in failed Amendments 2-9, he ruled Amendment 9 out-of-order.
7:51:59 PM
REPRESENTATIVE EASTMAN moved to adopt Amendment 10, labeled 30-
LS1382\J.11, Radford, 3/16/18, which read as follows:
Page 1, line 2:
Delete "forested"
Following "land":
Insert "with inflammable material"
Page 1, line 3:
Delete "forested"
Following "land":
Insert "with inflammable material"
Page 2, line 6:
Delete "forested"
Following "land":
Insert "with inflammable material"
Page 2, line 26:
Delete "forested"
Insert "[FORESTED]"
Following "land":
Insert "with inflammable material"
Page 3, line 13:
Delete "forested"
Insert "[FORESTED]"
Following "land":
Insert "with inflammable material"
Page 3, line 17:
Delete "forested"
Following "land":
Insert "with inflammable material"
Page 3, line 22:
Delete "forested"
Following "land":
Insert "with inflammable material"
Page 3, line 26:
Delete "forested land [TIMBER, BRUSH, GRASS,] or
other"
Insert "[TIMBER, BRUSH, GRASS, OR OTHER]"
Page 4, line 1:
Delete "forested"
Insert "[FORESTED]"
Following "land":
Insert "with inflammable material"
Page 4, line 7:
Delete "forested"
Insert "[FORESTED]"
Following "land":
Insert "with inflammable material"
Page 5, line 5:
Delete "forested"
Following "land":
Insert "with inflammable material"
Page 5, line 6:
Delete "forested"
Following "land":
Insert "with inflammable material"
Page 5, line 10:
Delete "forested"
Following "land":
Insert "with inflammable material"
Page 5, line 13:
Delete "forested"
Following "land":
Insert "with inflammable material"
Page 5, line 14:
Delete "forested"
Following "land":
Insert "with inflammable material"
Page 5, lines 19 - 20:
Delete "forested land or other flammable"
Insert "land with inflammable"
Page 5, line 21:
Delete "forested land or other flammable"
Insert "land with inflammable"
Page 5, line 23:
Delete "forested"
Following "land":
Insert "with inflammable material"
Page 6, following line 5:
Insert a new paragraph to read:
"(6) "inflammable material" means material
that is combustible and easily set on fire."
Renumber the following paragraph accordingly.
REPRESENTATIVE KREISS-TOMKINS objected.
7:52:10 PM
REPRESENTATIVE EASTMAN explained that Amendment 10 deals with
the current failure in Alaska Statutes as to the definition of
"forested land." When any member of the public, he advised,
sees the words "forested land," they have a general
understanding that the phrase probably involves some type of
trees, large bushes, and timber. He said that the definition of
"forested land" used in CSHB 355, has nothing to do with trees.
For example, the current definition of "forested land" would
qualify regarding water and land under water, a kelp patty, and
a tide moving out to sea, he said. The intent of the use of
"forested land" in CSHB 355, is about flammable material. The
amendment language, he related, is more specifically about land
containing flammable material, it makes the intention clear, and
it would bring the public along with that intention.
7:54:35 PM
REPRESENTATIVE KREISS-TOMKINS asked whether there are other
instances in which an overly broad definition of "forested
lands" has been problematic.
REPRESENTATIVE EASTMAN responded that this bill expands what
fire service individuals can and should do, which is fine, but
it is in the context of those individuals' perspectives and the
public is not necessarily thinking in those terms. Whereas,
fire service individuals think more about what can burn, how
quickly it can burn, the fuel load on a particular piece of
land, and so forth. He acknowledged to Representative Kreiss-
Tomkins that he is not aware of what would normally be
considered "forested land" being abused or misused. He offered
that he is "keying in on ... the old, very tailored definition
of forested land," and applying it to this more expansive
manner, which will potentially cause new issues going forward
with enforcement and educating the public.
7:56:57 PM
REPRESENTATIVE KREISS-TOMKINS asked Mr. Maisch his thoughts on
the proposed definition.
MR. MAISCH responded that "forested land" is defined under AS
41.15.170(3), which read as follows:
(1) "damages" includes costs incurred in suppressing,
controlling, or extinguishing a fire;
(2) "forested land" includes all land on which grass,
brush, timber, and other natural vegetative material
grows;
(3) "forest fire" includes the uncontrolled burning of
grass, brush, timber, and other natural vegetative
material.
MR. MAISCH explained that "other natural vegetative material" is
key because it is difficult to predict what type of vegetative
material might actually be flammable and carry a fire. He noted
that "inflammable" is a confusing term to the lay person, and in
fact the National Fire Protection Association (NFPA) stopped
using that term in the 1920s, and instead uses the term
"flammable" as opposed to "inflammable." He advised that the
department opposes this definition change.
7:58:22 PM
REPRESENTATIVE KREISS-TOMKINS commented that use of inflammable
caught him off guard and he could see how it would cause great
confusion.
7:58:45 PM
REPRESENTATIVE KOPP commented that Title 41 is Public Resources,
and Chapter 15 is titled "Forests," which is about managing
forests and contracting for the care of this resource. The use
of the term "forested" is consistent within the statute, and he
opined that for the person reviewing the law, it is internally
consistent because its heading and intent deals with management
of state forests on public lands. He noted that "we could be"
unintentionally changing language that could make it not consist
with what the law was written for in the first place.
7:59:52 PM
CHAIR CLAMAN offered curiosity as to the 1920s use of
"inflammable" material, and if one had a gas can sitting in a
vacant lot, that probably fits the definition of "inflammable
material." Except, when looking at forested land, which has
some requirement of vegetative growing material, it would be
different than fighting forest fires, so he has trouble with the
amendment, he said.
8:00:29 PM
REPRESENTATIVE EASTMAN referred to the requirement of natural
vegetation and said that it takes away from what the committee
is trying to accomplish. For example, say someone stacked up
all sorts of flammable material that is not naturally
vegetative, this does not fall into the definition of "forested
land." Land that is not flammable, that has no risk of being
flammable in the near future, is being called "forested land."
Which, he said, is what the request is designed to get away from
because if there is really no chance of it burning, the public
should not be calling it "forested land."
REPRESENTATIVE KREISS-TOMKINS maintained his objection.
8:01:26 PM
A roll call vote was taken. Representative Eastman voted in
favor of the adoption of Amendment 10. Representatives Kreiss-
Tomkins, Kopp, Stutes, LeDoux, and Claman voted against it.
Therefore, Amendment 10 failed to be adopted by a vote of 1-5.
CHAIR CLAMAN then brought CSHB 355 back before the committee for
discussion.
8:02:15 PM
REPRESENTATIVE KOPP referred to the 3/14/2018 letter of strong
support from the Kenai Peninsula Borough Mayor's Office
[contained within the committee packets] and reminded the
committee that that borough has suffered a significant rash of
wildfires. He went on to describe that the committee discussed
some good policy calls, and that perhaps in the next committee
of referral, the definition of who a person has a duty to
disclose they are carrying a firearm can be fine-tuned. He
added that if that committee is able to work in the phrase
"sworn law enforcement," that phrase will make the legislation
explicitly clear that there is a duty to [disclose to] those
uniformed and badged deputy fire marshals or fire marshals who
are sworn peace officers. He acknowledged that this committee
does not have to address every issue, the above issue is good
issue to highlight, and this legislation will have good work put
to it as it moves forward.
8:03:39 PM
REPRESENTATIVE KREISS-TOMKINS moved to report CSHB 355, labeled
30-LS1382\J, as amended, out of committee with individual
recommendations and the accompanying fiscal notes. There being
no objection, CSHB 355(JUD) moved from the House Judiciary
Standing Committee.
8:04:35 PM
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 8:04 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB355 ver J 3.14.18.PDF |
HJUD 3/14/2018 1:00:00 PM HJUD 3/19/2018 1:00:00 PM HJUD 3/26/2018 1:00:00 PM HJUD 4/2/2018 1:00:00 PM HJUD 4/2/2018 7:00:00 PM |
HB 355 |
| HB355 Sponsor Statement 3.14.18.pdf |
HJUD 3/14/2018 1:00:00 PM HJUD 3/26/2018 1:00:00 PM HJUD 4/2/2018 1:00:00 PM HJUD 4/2/2018 7:00:00 PM |
HB 355 |
| HB355 Amendments #1-10 3.19.18.pdf |
HJUD 3/19/2018 1:00:00 PM HJUD 3/26/2018 1:00:00 PM HJUD 4/2/2018 1:00:00 PM HJUD 4/2/2018 7:00:00 PM |
HB 355 |
| HB355 Amendments #1-10 HJUD Final Votes 4.2.18.pdf |
HJUD 4/2/2018 7:00:00 PM |
HB 355 |