Legislature(2013 - 2014)CAPITOL 120

02/10/2014 01:00 PM JUDICIARY

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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
Moved CSHB 292(JUD) Out of Committee
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
                    ALASKA STATE LEGISLATURE                                                                                  
               HOUSE JUDICIARY STANDING COMMITTEE                                                                             
                       February 10, 2014                                                                                        
                           1:08 p.m.                                                                                            
MEMBERS PRESENT                                                                                                               
Representative Wes Keller, Chair                                                                                                
Representative Bob Lynn, Vice Chair                                                                                             
Representative Neal Foster                                                                                                      
Representative Gabrielle LeDoux                                                                                                 
Representative Charisse Millett                                                                                                 
Representative Max Gruenberg                                                                                                    
MEMBERS ABSENT                                                                                                                
Representative Lance Pruitt                                                                                                     
COMMITTEE CALENDAR                                                                                                            
HOUSE BILL NO. 292                                                                                                              
"An Act  making corrective amendments  to the Alaska  Statutes as                                                               
recommended  by the  revisor of  statutes; and  providing for  an                                                               
effective date."                                                                                                                
     - MOVED CSHB 292(JUD) OUT OF COMMITTEE                                                                                     
HOUSE BILL NO. 47                                                                                                               
"An  Act   requiring  a  party   seeking  a   restraining  order,                                                               
preliminary  injunction,   or  order  vacating  or   staying  the                                                               
operation of a  permit affecting an industrial  operation to give                                                               
security  in the  amount  the court  considers  proper for  costs                                                               
incurred  and damages  suffered  if the  industrial operation  is                                                               
wrongfully enjoined or restrained."                                                                                             
     - HEARD & HELD                                                                                                             
PREVIOUS COMMITTEE ACTION                                                                                                     
BILL: HB 292                                                                                                                  
SHORT TITLE: 2014 REVISOR'S BILL                                                                                                
SPONSOR(s): RULES BY REQUEST OF LEGISLATIVE COUNCIL                                                                             
02/03/14       (H)       READ THE FIRST TIME - REFERRALS                                                                        
02/03/14       (H)       JUD                                                                                                    
02/10/14       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
BILL: HB  47                                                                                                                  
SHORT TITLE: INJUNCTION SECURITY: INDUSTRIAL OPERATION                                                                          
SPONSOR(s): FEIGE, CHENAULT                                                                                                     
01/16/13       (H)       PREFILE RELEASED 1/11/13                                                                               
01/16/13       (H)       READ THE FIRST TIME - REFERRALS                                                                        
01/16/13       (H)       JUD                                                                                                    
01/30/13       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
01/30/13       (H)       Heard & Held                                                                                           
01/30/13       (H)       MINUTE(JUD)                                                                                            
02/10/14       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
WITNESS REGISTER                                                                                                              
LISA KIRSCH, Assistant Revisor                                                                                                  
Legal Services                                                                                                                  
Legislative Legal and Research Services                                                                                         
Legislative Affairs Agency (LAA)                                                                                                
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:  Testified on HB 292.                                                                                     
REPRESENTATIVE ERIC FEIGE                                                                                                       
Alaska State Legislature                                                                                                        
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:  Testified as one of the prime sponsors of                                                                
HB 47.                                                                                                                          
NANCY MEADE, General Counsel                                                                                                    
Administrative Staff                                                                                                            
Office of Administrative Director                                                                                               
Alaska Court System                                                                                                             
Anchorage, Alaska                                                                                                               
POSITION STATEMENT:  Responded to questions regarding HB 47.                                                                  
MAYNARD TAPP, Founder and Managing Member                                                                                       
Hawk Consultants, LLC;                                                                                                          
Member, The Alliance                                                                                                            
Anchorage, Alaska                                                                                                               
POSITION STATEMENT:  Testified in support of HB 47.                                                                           
MICHAEL JUNGREIS                                                                                                                
Director, Resource Development Council                                                                                          
Anchorage, Alaska                                                                                                               
POSITION STATEMENT:  Testified in support of HB 47.                                                                           
MIKE PRAX                                                                                                                       
Fairbanks, Alaska                                                                                                               
POSITION STATEMENT:  Testified in support of HB 47.                                                                           
ANDY ROGERS, Deputy Director                                                                                                    
Alaska State Chamber of Commerce                                                                                                
Anchorage, Alaska                                                                                                               
POSITION STATEMENT:  Testified in support of HB 47.                                                                           
ACTION NARRATIVE                                                                                                              
1:08:50 PM                                                                                                                    
CHAIR WES  KELLER called the  House Judiciary  Standing Committee                                                               
meeting to  order at 1:08  p.m.  Representatives  Foster, LeDoux,                                                               
Gruenberg,   Keller  were   present   at  the   call  to   order.                                                               
Representatives Lynn  and Millett arrived  as the meeting  was in                                                               
1:09:02 PM                                                                                                                    
                   HB 292-2014 REVISOR'S BILL                                                                               
1:09:50 PM                                                                                                                  
CHAIR  KELLER announced  the  first order  of  business would  be                                                               
HOUSE BILL NO.  292, "An Act making corrective  amendments to the                                                               
Alaska Statutes  as recommended by  the revisor of  statutes; and                                                               
providing for an effective date."                                                                                               
1:10:11 PM                                                                                                                  
LISA  KIRSCH,  Assistant  Revisor,  Legal  Services,  Legislative                                                               
Legal and  Research Services, Legislative Affairs  Agency advised                                                               
this bill is the legislature's  opportunity to correct and remove                                                               
any   deficiencies,   conflicts   and/or   obsolete   provisions.                                                               
Primarily,  the bill  updates  the names  of  agencies that  have                                                               
changed due  to changes in federal  law.  The bill  also captures                                                               
several instances of the term  "adoptive child," which is not the                                                               
standard term  for a  child who  has been  adopted.   The correct                                                               
terms  are "adoptive  parent" and  "adopted child."   Ms.  Kirsch                                                               
informed the committee another reference  had been discovered and                                                               
thus  there  is  an  amendment to  change  the  "adoptive  child"                                                               
reference to  "adopted child."   The  bill also  updates obsolete                                                               
date  references  to  the  boiler  code,  and  changes  the  word                                                               
"stimulation"  as it  was a  typographical error  in the  statute                                                               
related to oil wells and hydraulic fracking.                                                                                    
1:12:01 PM                                                                                                                    
CHAIR KELLER referred to the  deletion of the language in Section                                                               
5, "after  January 1, 1974,"  and opined the dates  were valuable                                                               
bits of information,  which often marked when a bill  passed.  He                                                               
noted three or  four sections similar to Section 5,  in that they                                                               
delete  dates.     He   asked  whether   this  bill   included  a                                                               
comprehensive list  of such date  markers in statute  and whether                                                               
such changes had occurred.                                                                                                      
MS. KIRSCH  confirmed that per  Title 1 routine review  occurs to                                                               
remove obsolete dates from statute.   She explained that [January                                                               
1,  1974] has  meaning  when  there were  people  who had  rights                                                               
predating that  date.  However,  1974 is  so many years  ago that                                                               
the likelihood of anyone having a  right arise prior to that date                                                               
is very low to nonexistent.   She further explained that once the                                                               
date is  far enough back in  history, relative to the  context it                                                               
is in and  the nature of the section, the  date may be determined                                                               
to be  obsolete.   Although dates could  [be relevant]  for 20-30                                                               
years,  at a  certain  point  the date  becomes  obsolete and  is                                                               
removed from statute.                                                                                                           
1:14:45 PM                                                                                                                    
CHAIR KELLER asserted it is good  he is not setting the standards                                                               
for  drafting  as  he  believed  the  value  of  a  date  is  for                                                               
historical context.   He then  questioned whether Section 3  is a                                                               
substantive change.                                                                                                             
MS.   KIRSCH  stated   the  revisor's   bill  cannot   include  a                                                               
substantive  change.   The  section  of  statute being  added  in                                                               
Section 3 is AS 40.25.295, which  is just the short title.  Short                                                               
titles of  an article  or section  are located  at the  very end.                                                               
She noted that these provisions, being  added in Section 3 are in                                                               
the Alaska Public Records Act.                                                                                                  
1:16:25 PM                                                                                                                    
CHAIR  KELLER  offered   his  belief  the  change   of  the  term                                                               
"adoptive"  to "adopted"  is a  substantive change,  particularly                                                               
since  the  two   have  different  meanings  in   terms  of  time                                                               
sensitivities.  In the English  language adoptive means something                                                               
different than adopted.                                                                                                         
MS. KIRSCH explained  that the adoptive parent is  the person who                                                               
becomes a  parent by virtue  of adopting a  child.  The  child is                                                               
not the  one taking  the action,  the child is  the party  who is                                                               
acted upon  and is adopted.   The aforementioned is  the standard                                                               
usage of those terms.                                                                                                           
1:17:58 PM                                                                                                                    
CHAIR KELLER  suggested that an  adoptive child could be  a child                                                               
in the  process of being  adopted as opposed  to a child  who has                                                               
been adopted sometime in the past.                                                                                              
MS. KIRSCH  expressed her understanding  that the  statutes refer                                                               
to a child who has been adopted, not a child in the process.                                                                    
CHAIR  KELLER maintained  concern with  the change  and asked  if                                                               
other committee members had a  similar concern to which there was                                                               
no response.                                                                                                                    
1:19:31 PM                                                                                                                    
REPRESENTATIVE   GRUENBERG  moved   that   the  committee   adopt                                                               
Amendment  1,  labelled  28-LS0904\C.1,  Kirsch,  2/14/14,  which                                                               
     Page 10, following line 13:                                                                                                
     Insert a new bill section to read:                                                                                         
        "* Sec. 20. AS 39.52.960(11) is amended to read:                                                                    
               (11)  "immediate family member" means                                                                            
               (A)  the spouse of the person;                                                                                   
               (B)  another person cohabiting with the                                                                          
     person in a conjugal relationship that is not a legal                                                                      
               (C)  a child, including a stepchild and an                                                                       
     adopted [ADOPTIVE] child, of the person;                                                                               
               (D)  a parent, sibling, grandparent, aunt,                                                                       
     or uncle of the person; and                                                                                                
               (E)  a parent or sibling of the person's                                                                         
     Renumber the following bill sections accordingly.                                                                          
CHAIR KELLER removed his objection.                                                                                             
There being no further objections, Amendment 1 was adopted.                                                                     
REPRESENTATIVE LYNN  moved to report  HB 292, as amended,  out of                                                               
committee  with individual  recommendations and  the accompanying                                                               
fiscal notes.                                                                                                                   
CHAIR KELLER stated there being  no objections, CSHB 292(JUD) was                                                               
reported from the House Judiciary Standing Committee.                                                                           
1:21:09 PM                                                                                                                    
The committee took a brief at-ease.                                                                                             
        HB  47-INJUNCTION SECURITY: INDUSTRIAL OPERATION                                                                    
1:24:40 PM                                                                                                                  
CHAIR KELLER announced  that the next order of  business would be                                                               
HOUSE  BILL  NO.  47,  "An   Act  requiring  a  party  seeking  a                                                               
restraining order,  preliminary injunction, or order  vacating or                                                               
staying  the  operation  of  a  permit  affecting  an  industrial                                                               
operation  to give  security in  the amount  the court  considers                                                               
proper for costs incurred and  damages suffered if the industrial                                                               
operation is wrongfully enjoined or restrained."                                                                                
1:24:58 PM                                                                                                                  
REPRESENTATIVE LYNN moved to  adopt proposed committee substitute                                                               
for HB 47, Version 28-LS0072\N,  Bullock/Wallace, 1/10/14, as the                                                               
working document.                                                                                                               
REPRESENTATIVE GRUENBERG objected for  purposes of discussion and                                                               
inquired as to the difference in Version N.                                                                                     
1:25:54 PM                                                                                                                    
REPRESENTATIVE ERIC FEIGE, Alaska  State Legislature, speaking as                                                               
one  of  the prime  sponsors  of  HB  47,  said the  only  change                                                               
embodied in Version  N is the addition of subsection  (d) on page                                                               
2.     The  commissioner  of  the   Department  of  Environmental                                                               
Conservation  (DEC) was  very concerned  that under  the original                                                               
language of HB  47 the federal permitting programs  for which the                                                               
state has primacy  could be adversely affected in  that the state                                                               
could   be   open   to  the   possibility   of   having   primacy                                                               
administratively retracted  by the federal  government.   The new                                                               
language, he  explained, exempts the federal  permitting programs                                                               
that  the  state  administers  and over  which  it  has  primacy.                                                               
Therefore, there is not even a  hint that this bill would prevent                                                               
access to the courts by other parties involved in those permits.                                                                
1:28:04 PM                                                                                                                    
REPRESENTATIVE GRUENBERG  pointed out  that the language  on page                                                               
1, line  11, of  HB 47  reads, "... including  an amount  for the                                                               
payment of wages ..." but was  changed in Version N to read, "The                                                               
court shall consider  the amount of wages,"  The  new language in                                                               
Version   N  allows   the  court   more   discretion,  which   he                                                               
characterized as a good amendment.                                                                                            
REPRESENTATIVE FEIGE agreed the  aforementioned was also a change                                                               
and in further  response to Representative Gruenberg  said he and                                                               
his staff were not aware of any other changes.                                                                                  
1:29:35 PM                                                                                                                    
REPRESENTATIVE GRUENBER withdrew his objection.                                                                                 
1:29:41 PM                                                                                                                    
CHAIR  KELLER  then  objected  for  purposes  of  discussion  and                                                               
related his understanding that the language is new in Version N.                                                                
REPRESENTATIVE FEIGE clarified that the  language on page 2, line                                                               
6-13,  is new  language, which  pertains specifically  to federal                                                               
permitting   programs  that   are  administered   by  the   state                                                               
1:30:56 PM                                                                                                                    
CHAIR  KELLER removed  his  objection.   There  being no  further                                                               
objection, Version N was before the committee.                                                                                  
1:31:43 PM                                                                                                                    
REPRESENTATIVE  FEIGE,  continuing  his presentation  of  HB  47,                                                               
informed the committee that,                                                                                                    
     In the past  several years there have  been cases where                                                                    
     courts  have   issued  injunctions  or   stays  against                                                                    
     companies  engaged  in   the  development  of  resource                                                                    
     extraction and  other large industrial  operations that                                                                    
     had been  legally permitted.   These  legally permitted                                                                    
     projects  now   have  to  endure  the   high  costs  of                                                                    
     uncertainty and  delay.  The  discovery phase  in these                                                                    
     types  of  cases  can cost  hundreds  of  thousands  of                                                                    
     dollars   to  the   state  as   well  as   the  project                                                                    
     proponents.   House Bill 47 does  not condone "sloppily                                                                    
     written  or  wrongfully  issued permits"  as  has  been                                                                    
     described  by  some  opponents  of  the  bill.    If  a                                                                    
     permittee  is violating  the terms  of the  permit then                                                                    
     the  issuing departments  of the  state should  step in                                                                    
     and either  get the situation rectified  or temporarily                                                                    
     stop the project  until it comes into  compliance.  The                                                                    
     state has laid out  a rigorous science based permitting                                                                    
     system   to  allow   responsible  development   of  our                                                                    
     resources  for the  benefit of  all  Alaskans.   Public                                                                    
     involvement   and  input   is  encouraged   through  an                                                                    
     established  public  process.   Too  often,  once  this                                                                    
     process has been completed and  the permits are issued,                                                                    
     opponents   of  the   project   file  public   interest                                                                    
     litigation   seeking   an   injunction   or   a   stay.                                                                    
     Ultimately, those  who feel the most  immediate impacts                                                                    
     of  these   injunctions  are  the  workers   and  their                                                                    
     families because  workers are laid off,  both union and                                                                    
1:33:21 PM                                                                                                                    
     House  Bill  47 was  filed  with  intent to  level  the                                                                    
     playing field  and put  those who  file these  suits on                                                                    
     notice  that  they  too have  consequences  to  contend                                                                    
     with.   Some people  have pointed to  the title  of the                                                                    
     bill which  uses the  words "An  Act requiring  a party                                                                    
     ..."   The  requirement for  security is  already there                                                                    
     embedded in  Alaska Civil  Rule 65(c).   House  Bill 47                                                                    
     parallels  the   requirements  of  Rule   65(c),  which                                                                    
     states,  "...  No   restraining  order  or  preliminary                                                                    
     injunction  shall  issue  except  upon  the  giving  of                                                                    
     security by  the applicant,  in such  sum as  the court                                                                    
     deems  proper,  for  the  payment  of  such  costs  and                                                                    
     damages as  may be  incurred or  suffered by  any party                                                                    
     who  is  found  to  have been  wrongfully  enjoined  or                                                                    
     restrained. ..."   House  Bill 47  was written  to work                                                                    
     with Rule 65(c), not change  it.  The court already has                                                                    
     the   power   and   authority  to   require   a   bond,                                                                    
     unfortunately,  in most  cases they  don't require  it.                                                                    
     This  legislation directs  the court,  when considering                                                                    
     the bond  amount, to take  into account costs  that may                                                                    
     be  incurred   and  damages   that  may   be  suffered,                                                                    
     including  an  amount  for the  payment  of  wages  and                                                                    
     benefits    for    employees,   sub-contractors,    and                                                                    
     contractors.   It  does not  set  a bond  amount.   The                                                                    
     court  continues  to  have full  discretion  and  could                                                                    
     still  ultimately decide  to not  require a  bond.   In                                                                    
     this  legislation, industrial  operation is  defined to                                                                    
     include a construction, energy  or timber activity, and                                                                    
     oil,  gas  and   mineral  exploration  development  and                                                                    
     production.   Historically,  we have  not seen  a large                                                                    
     number  of these  types of  injunctions in  state court                                                                    
     for  two  reasons:  most lawsuits  today  have  involve                                                                    
     federal  permits, and  in  talking  with lawyers  about                                                                    
     this issue, found that many  of these cases are settled                                                                    
     out  of court  in an  effort  to avoid  costs and  work                                                                    
1:35:24 PM                                                                                                                    
     An  example of  this type  of  court case  would be  an                                                                    
     injunction filed  on the Port Mackenzie  Rail Extension                                                                    
     just as they were  starting to commence construction in                                                                    
     the Fall  of 2012.   A lawsuit  filed in  federal court                                                                    
     which ordered  a Stop  Work Order  on October  1, 2012,                                                                    
     eventually, later  that Fall on November  28, 2012 that                                                                    
     same  federal court  lifted  the order.    But for  two                                                                    
     months almost two  hundred people were put  out of work                                                                    
     and unable to  feed their families.   Here in Southeast                                                                    
     Alaska,  fairly  recently,  the  City  and  Borough  of                                                                    
     Juneau  permitted a  cruise ship  dock expansion.   The                                                                    
     Juneau  Assembly, last  month,  approved the  contract.                                                                    
     It  has  already  had  a group  file  for  a  Temporary                                                                    
     Restraining Order to keep the  city from working on the                                                                    
     project.   Work is  not even  scheduled to  begin until                                                                    
     2015.   Of  course,  you  are all  aware  that we  have                                                                    
     fairly large  projects potentially on our  horizon.  An                                                                    
     effort  to build  an instate  gas  line as  well as  an                                                                    
     export  line  would  involve a  whole  series  of  mega                                                                    
     projects that could potentially  be affected by someone                                                                    
     wanting to file  an injunction.  During  the interim we                                                                    
     continued to work with the  administration to deal with                                                                    
     some  concerns  that  they  had  with  respect  to  the                                                                    
     unintended   consequences   centering  on   the   state                                                                    
     primacy,  i.e., those  permits  related  to clean  air,                                                                    
     clean water  and surface coal.   I've detailed  some of                                                                    
     the  new language  in Version  N of  the CS.   The  new                                                                    
     language  specifically  exempts  those  federal  permit                                                                    
     programs  that the  state administers.    It does  not,                                                                    
     however, do anything to the  over one hundred different                                                                    
     state  permits  that  the state  currently  has  permit                                                                    
     authorization authority  for.  The language  will still                                                                    
     apply to  those and  a list of  those permits  has been                                                                    
     included in your packet.                                                                                                   
REPRESENTATIVE   FEIGER   advised   the  committee   there   were                                                               
representatives  in  the  room from  the  Department  of  Natural                                                               
Resources, Department  of Environmental Conservation,  the Alaska                                                               
Court System, Department of Law,  and Legislative Legal available                                                               
for questions, and also a number of people online to testify.                                                                   
1:38:37 PM                                                                                                                    
REPRESENTATIVE LEDOUX inquired  as to what was  the percentage of                                                               
injunctions filed in the state versus federal court.                                                                            
REPRESENTATIVE  FEIGE maintained  that  most  of the  injunctions                                                               
brought  forth are  in federal  court.   In  further response  to                                                               
Representative LeDoux,  Representative Feige affirmed that  HB 47                                                               
would not impact federal courts.                                                                                                
REPRESENTATIVE  LEDOUX inquired  as to  how much  assistance this                                                               
bill could provide projects.                                                                                                    
1:39:45 PM                                                                                                                    
REPRESENTATIVE  FEIGE  clarified  that  HB  47  does  not  impact                                                               
federal courts  as it is not  in the state's arena  of authority.                                                               
However,  the  possibility  exists  that  plaintiffs  could  seek                                                               
injunctions   under   state  court,   which   he   opined  is   a                                                               
vulnerability  within  the  state's legal  structure.    Although                                                               
Civil  Rule 65(c)  already  requires  security, the  overwhelming                                                               
majority of  judges do not  appear willing to require  parties to                                                               
post bonds.  He said he did  not know whether [the actions of the                                                               
judges] were the  intent of the legislature or the  intent of the                                                               
original rule.   If HB  47 passes,  the legislation would  send a                                                               
significant message  to the third  branch of government  that the                                                               
legislature  encourages  judges  to  look  closely  at  requiring                                                               
security bonds,  especially in  cases like  this.   Regarding the                                                               
total number of  court cases like this, he deferred  to the court                                                               
1:42:04 PM                                                                                                                    
CHAIR KELLER advised  the committee it was not  his intention for                                                               
the committee to vote  on HB 47 today, as it  had just received a                                                               
memorandum from Legal Services.                                                                                                 
1:42:19 PM                                                                                                                    
REPRESENTATIVE GRUENBERG  opined that  the current language  is a                                                               
definite improvement and asked Representative  Feige if his staff                                                               
would make a copy of his presentation for his review.                                                                           
REPRESENTATIVE FEIGE agreed to do so.                                                                                           
1:43:38 PM                                                                                                                    
REPRESENTATIVE MILLETT  noted her  appreciation for HB  47, which                                                               
she  felt  was a  long  time  in coming  as  Alaska  must make  a                                                               
statement  about frivolous  lawsuits  and actions  taken to  slow                                                               
down projects and cause projects to  be more expensive.  She said                                                               
Alaskans  are  not  taking  these   actions  rather  it  is  non-                                                               
government organizations (NGO) from  out-of-state that have found                                                               
a beautiful  picturesque place  like Alaska and  use it  as their                                                               
biggest fundraising tool in the  Lower 48.  Representative Millet                                                               
related that she  is offended that Alaskans are  being treated in                                                               
this manner.                                                                                                                    
1:44:42 PM                                                                                                                    
CHAIR  KELLER  advised the  committee  that  Friday's meeting  is                                                               
scheduled for bills  previously heard, of which  could include HB                                                               
47.  He then turned to public testimony.                                                                                        
1:46:51 PM                                                                                                                    
NANCY  MEADE, General  Counsel, Administrative  Staff, Office  of                                                               
the Administrative Director, Alaska  Court System, in speaking to                                                               
Representative    LeDoux's    earlier    question,    preliminary                                                               
injunctions  are  tracked,  but   there  are  not  statistics  on                                                               
preliminary injunctions against industrial  operations as that is                                                               
not a term  used in its data base yet.   Anecdotally, she related                                                               
that over  the last six or  seven years there have  been possibly                                                               
two  or  three  cases  that  would fall  into  what  the  sponsor                                                               
intended to cover with  HB 47.  This bill is  similar to CR 65(c)                                                               
as  the courts  do  have authority  to set  the  security.   Many                                                               
times,  she  explained,  parties  will stipulate  the  amount  of                                                               
security for  various actions for preliminary  injunction or TROs                                                               
and  for the  most part  judges accept  those stipulations.   The                                                               
security  is intended  to cover  the costs  and damages  that the                                                               
enjoined  party might  suffer if  the injunction  were wrongfully                                                               
granted.  The court holds the  security until the end of the case                                                               
and  if the  enjoined party  should not  have been  enjoined, the                                                               
security can  be used  to pay  the costs  and damages  that party                                                               
1:48:40 PM                                                                                                                    
REPRESENTATIVE GRUENBERG  emphasized the  need for  the committee                                                               
to  carefully  understand the  language  of  CR  65 in  order  to                                                               
understand  the legal  issues involved  in HB  47, which  is what                                                               
will, if  anything, be changed by  HB 47.  He  then asked whether                                                               
the trial court has broad discretion in issuing injunctions.                                                                    
MS. MEADE advised  the trial court has discretion  whether or not                                                               
to  grant a  motion  for preliminary  injunction,  but there  are                                                               
specific legal tests it must apply.                                                                                             
REPRESENTATIVE GRUENBERG requested  Ms. Meade briefly enumerating                                                               
what the list of factors.                                                                                                       
MS. MEADE expressed concern she  would misstate them as they were                                                               
not written before her.                                                                                                         
CHAIR KELLER  requested Ms.  Meade come  prepared to  discuss the                                                               
legal tests on Friday.                                                                                                          
1:51:04 PM                                                                                                                    
REPRESENTATIVE GRUENBERG remarked that he  was not sure the court                                                               
system is  the appropriate  branch to  answer that  question, and                                                               
requested  that   staff  from  Legislative  Legal   and  Research                                                               
Services be available  on Friday.  In  response to Representative                                                               
Lynn, Representative  Gruenberg explained  that CR 65  covers the                                                               
following  three   types  of  injunctions,  with   the  specified                                                               
meaning:  temporary   injunction  is   attending  a   hearing;  a                                                               
preliminary injunction  is after a  hearing pending trial,  and a                                                               
permanent injunction is covered by  the rule of procedure.  There                                                               
are also statutes on the  subject, which he requested be included                                                               
in the committee's packet.                                                                                                      
1:52:20 PM                                                                                                                    
REPRESENTATIVE LEDOUX  related her  understanding that  for state                                                               
permits if  a party desired  a TRO  against the state,  the party                                                               
would  be  against  the  state.   For  federal  permits  and  the                                                               
category  of  permits  for  which   the  state  has  primacy,  is                                                               
basically the federal  program.  However, a party  cannot sue the                                                               
state in federal court.  She  then explored whether a party could                                                               
simply  sue the  industrial operation  in federal  court and  not                                                               
include the state as a party.                                                                                                   
MS.  MEADE  related  her  understanding   that  HB  47  addresses                                                               
injunctions  filed against  the industrial  operation itself  and                                                               
not against the  state as the defending party  to the injunction.                                                               
The intent,  she opined, was to  cover lawsuits in which  a group                                                               
or  individual  wishes  to stop  the  industrial  operation  from                                                               
proceeding  and that  group itself  is the  defendant/respondent,                                                               
and thus is enjoined.  She  specified that she had not understood                                                               
that the  state would be  a party  to those actions,  which could                                                               
take place in state or federal court.                                                                                           
REPRESENTATIVE  LEDOUX surmised  then that  any lawsuit  with any                                                               
federal element whatsoever could be brought in federal court.                                                                   
MS. MEADE stated her agreement with Representative LeDoux.                                                                      
REPRESENTATIVE GRUENBERG  cautioned the committee not  to ask the                                                               
court  system as  this  may  be an  issue  that ultimately  comes                                                               
before it.                                                                                                                      
1:56:06 PM                                                                                                                    
MAYNARD  TAPP, Founder  and  Managing  Member, Hawk  Consultants,                                                               
LLC, Member, The Alliance, opined  that delaying Alaskan projects                                                               
hurts The Alliance members, and  therefore hurts workers that are                                                               
the  employees   of  The  Alliance.     For  example,   a  recent                                                               
cancelation of a project caused 70  people to lose their job in 1                                                               
company.  Those  70 people earned $60,000 -  $80,000 annually and                                                               
the  loss of  wages  has  a major  impact  on local  communities.                                                               
Currently, there  are approximately 180  jobs at risk  on another                                                               
project  in rural  Alaska.   The impact  of those  lost wages  on                                                               
individuals as well as most  communities would be staggering.  If                                                               
a  party  desires   to  delay  a  project,  it   should  be  held                                                               
accountable  for the  financial harm  caused by  its actions,  he                                                               
1:58:16 PM                                                                                                                  
MR. TAPP, in  response to Representative Gruenberg  advised he is                                                               
one of  the principals  for Hawk  Consultants, LLC,  which leases                                                               
personnel to oil companies.                                                                                                     
1:59:03 PM                                                                                                                    
MICHAEL JUNGREIS,  Director, Resource Development  Council (RDC),                                                               
clarified that  although he is  a partner with Davis,  Wright and                                                               
Tremaine, LLP,  he is testifying  on his  own behalf and  that of                                                               
the RDC.   He related  that the  RDC favors this  legislation and                                                               
emphasized the injunction power is  the most powerful tool of the                                                               
court as it has the power  to stop any activity from occurring in                                                               
the state.   In  a preliminary  injunction, the  court frequently                                                               
has only relatively sketchy factual  materials available to it in                                                               
order to make  a determination.  A large  scale enterprise, which                                                               
may  be employing  scores  of hundreds  of  people and  deploying                                                               
millions  of  dollars into  a  major  economic activity  in  this                                                               
state, can be brought to a  complete halt by the power judges can                                                               
impose.  He  related his experience that judges  are reluctant to                                                               
impose the  bonding requirement the  law allows.    Therefore, he                                                               
opined,  it is  important for  the legislature  to make  it clear                                                               
that  judges must  consider the  impact the  decisions they  make                                                               
have on  individuals, the economy,  and on the  economic activity                                                               
they can stop.                                                                                                                  
2:01:56 PM                                                                                                                    
MR.  JUNGREIS  explained  that   the  standard  for  granting  an                                                               
injunction, which is  in State Division of  Elections v. Metcalf,                                                             
(Alaska  2005) and  has been  cited since  2005, is  that if  the                                                               
threatened injury  is irreparable, meaning something  that cannot                                                               
be brought  back as  in chopping  down a forest  or filling  in a                                                               
lake, then  all the  plaintiff must  do is  raise "a  serious and                                                               
substantial question" that is not  frivolous or obviously without                                                               
merit.  The bottom line is  that a plaintiff who claims a serious                                                               
enough  injury does  not  have  to persuade  the  judge that  the                                                               
plaintiff is going  to win.  In fact, the  judge may conclude the                                                               
plaintiff  is probably  going  to  lose, but  when  it  is not  a                                                               
frivolous case a preliminary injunction  must be granted, even on                                                               
partial knowledge.   He opined that when judges have  to grant an                                                               
injunction, it  is critical that  the injunction only  be granted                                                               
with protection  for the enterprises  that are the life  blood of                                                               
the state.                                                                                                                      
2:03:49 PM                                                                                                                    
REPRESENTATIVE LEDOUX asked  if the standards for  granting a TRO                                                               
were less than for a preliminary injunction.                                                                                    
MR.  JUNGREIS, noting  that he  had been  practicing law  in this                                                               
state for a while and had appeared  in a number of cases in which                                                               
both   preliminary  and   temporary   injunctions  were   issued,                                                               
responded he was not certain but  the TRO, which by its terms can                                                               
only  be issued  for a  10  day period,  also requires  security.                                                               
Information upon  which a TRO  is granted frequently  consists of                                                               
an affidavit  or two and  rarely is there  live testimony.   As a                                                               
result,  there are  some judges  who are  extremely reluctant  to                                                               
grant TROs  unless there  is something terrible  going on  like a                                                               
child who  is about to  be removed from  the state or  someone is                                                               
about  to  be taken  off  life  support.   This  legislation,  he                                                               
opined,  would  apply  to  a  TRO  in  an  industrial  permitting                                                               
2:05:34 PM                                                                                                                    
REPRESENTATIVE  LEDOUX  related  her  understanding  that  for  a                                                               
preliminary  injunction  a party  has  to  show a  likelihood  of                                                               
success on  the merits as  opposed to  simply showing that  it is                                                               
not a frivolous  lawsuit.  However, she said she  was not certain                                                               
that a party had to show the  likelihood of success with a TRO as                                                               
it is maybe a more lax standard.                                                                                                
MR.  JUNGREIS  conveyed the  current  standard  is in  two  parts                                                               
depending upon the severity of  injury that the plaintiff claims.                                                               
If the  plaintiff's injury is not  claimed to be all  that severe                                                               
or if  it is claimed to  be less than irreparable,  the plaintiff                                                               
must present a  clear showing of probable success  on the merits.                                                               
In  that instance,  the judge  would be  required to  believe the                                                               
plaintiff was going to win  before issuing the injunction.  There                                                               
is a  "lessened" standard for which  the harm that is  alleged is                                                               
of a greater amount.  If  a plaintiff is claiming the neighbor is                                                               
going  to block  the  driveway,  the plaintiff  must  show it  is                                                               
probably going  to win.   If  a plaintiff  asserts the  injury is                                                               
irreparable,  such  as filling  in  a  lake  or chopping  down  a                                                               
forest, the  plaintiff is not  required to  show it is  likely to                                                               
win, but rather must show the case is not frivolous.                                                                            
2:08:28 PM                                                                                                                    
MR. JUNGREIS, in response  to Representative Gruenberg; suggested                                                               
the committee  [consult] the following cases:  State, Division of                                                             
Elections  v. Metcalf,  110  P.3d 976  (Alaska  2005); Misyura  v                                                           
Misyura, 244  P.3d 519 (Alaska  2010).  In further  response, Mr.                                                             
Jungreis offered  that the court  is considering  the seriousness                                                               
of  the injury,  whether the  defendant can  be protected  if the                                                               
[injunction] is  granted, and  whether the  court can  be certain                                                               
the defendant is not injured if  the injunction turns out to have                                                               
been granted  in error.   The aforementioned,  he opined,  is the                                                               
purpose of HB 47.  The other issue  is how good of a case has the                                                               
plaintiff  presented to  require  an injunction.   Although  it's                                                               
likely  the duration  is  an  element that  would  be taken  into                                                               
account in  assessing all of the  factors, he was not  certain it                                                               
would be a separate factor.                                                                                                     
2:12:22 PM                                                                                                                    
REPRESENTATIVE  GRUENBERG,  questioned  whether  the  legislation                                                               
could simply  provide this  as a factor  to be  considered rather                                                               
than  specifying  out   hard  and  fast  rules   that  may  cause                                                               
constitutional problems.                                                                                                        
MR. JUNGREIS  said that  the court has  to consider  the factors,                                                               
but [the ultimate  decision] is for the court to  determine.  The                                                               
court  must  be  able  to  show  it  reviewed  every  factor  and                                                               
understood those  were critical factors  that must be  taken into                                                               
consideration,  although the  factors do  not absolutely  control                                                               
the  decision.   This  legislation does  not  attempt to  specify                                                               
dollar  for  dollar exactly  how  the  court must  determine  the                                                               
issue, he stated.                                                                                                               
2:14:45 PM                                                                                                                    
REPRESENTATIVE  LEDOUX  asked whether  the  denial  of a  TRO  or                                                               
preliminary injunction, or the amount  of bond the court requires                                                               
to  be  posted  is  appealable.   If  it  is  appealable,  is  it                                                               
appealable on an expedited basis, she asked.                                                                                    
REPRESENTATIVE  GRUENBERG answered  that  [denial  and amount  of                                                               
bond is absolutely appealable].                                                                                                 
MR. JUNGREIS agreed with  Representative Gruenberg that certainly                                                               
in every  legal system, the failure  to grant or the  granting of                                                               
injunctive relief all give rise to an immediate right to appeal.                                                                
REPRESENTATIVE  GRUENBERG  advised  the technical  term  for  the                                                               
process would be "Petition for Review."                                                                                         
MR. JUNGREIS  answered that he was  not certain of that  term but                                                               
offered  that there  is  no question  a party  has  the right  to                                                               
Petition  for Review  for any  interlocutory order.   Clearly,  a                                                               
party has  a right to  appeal, but  he was uncertain  whether the                                                               
court must hear the appeal.                                                                                                     
MS. MEADE  agreed with Representative  Gruenberg that  the denial                                                               
or  granting of  the order  would be  a Petition  for Review  and                                                               
would definitely be  allowable by a court above  the trial level.                                                               
In  further  response  to  Representative  Gruenberg,  Ms.  Meade                                                               
confirmed injunctions must  be brought in the  superior court and                                                               
not the  district court.  If  the decision is appealed,  it first                                                               
goes to a single justice, and  then can be reviewed by the entire                                                               
court.   Appeals,  she clarified,  are not  expedited per  se and                                                               
they  are  not  in  the  rule  regarding  which  proceedings  are                                                               
automatically expedited.   However,  Petitions for Review  can be                                                               
handled faster than an appeal on a full case, she pointed out.                                                                  
2:18:29 PM                                                                                                                    
REPRESENTATIVE LEDOUX  noted her  understanding whether or  not a                                                               
court heard a Petition for Review was discretionary.                                                                            
MS. MEADE agreed with Representative  LeDoux.  She further agreed                                                               
with Representative LeDoux  that a party has the right  to file a                                                               
[Petition for  Review], but that  doesn't mean the court  will do                                                               
anything about it.                                                                                                              
REPRESENTATIVE GRUENBERG provided that if  that is the case, that                                                               
unless and until  the court issued a superseding  order on appeal                                                               
the trial court's original order would remain in effect.                                                                        
MS. MEADE agreed with Representative Gruenberg.                                                                                 
2:19:34 PM                                                                                                                    
MS.  MEADE  directed  attention  to  the  following  language  in                                                               
Version  N on  page 1,  line 11:  "The court  shall consider  the                                                               
amount  of  wages and  benefits  for  employees and  payments  to                                                               
contractors and  subcontractor ..."   She  suggested it  might be                                                               
beneficial to  use the following  language: "Upon the  request of                                                               
any party  and when  that party  presents credible  evidence ..."                                                               
because if  the industrial  operation does  not want  to disclose                                                               
records about its  wages or its contracts  or subcontractors, the                                                               
court  would   not  have   evidence  to   consider.     With  the                                                               
aforementioned suggested language the  court has to consider this                                                               
because otherwise it  would not have the means  or information to                                                               
consider those factors.  The  sponsor, she related, was receptive                                                               
to including such language.                                                                                                     
2:20:46 PM                                                                                                                    
CHAIR KELLER directed  the sponsor to be prepared  on Friday with                                                               
language for discussion on that matter.                                                                                         
MS. MEADE informed  the committee the language  would be provided                                                               
to the committee.                                                                                                               
2:21:35 PM                                                                                                                    
MIKE  PRAX   state  that  the  [suggested   language]  change  to                                                               
"something the  court shall consider"  rather than just  "do," is                                                               
needed.   This legislation,  he opined, is  necessary as  it does                                                               
appear  that injunctions  are granted  too easily.   Furthermore,                                                               
the committee  should know how often  injunctions are overturned,                                                               
he opined.   He  related that  he followed  the Healy  Clean Coal                                                               
Project  for which  tens of  millions of  dollars a  year to  the                                                               
members of  Golden Valley [Electric Association  GVEA] were lost,                                                               
which he  acknowledged would  not be  considered.   Objections to                                                               
Healy Clean  Coal, he opined,  were without merit from  the start                                                               
and it appeared  the injunction strategy was to run  the costs up                                                               
so GVEA would give up on  the project regardless of the merits of                                                               
the  case.   He further  opined that  the aforementioned  happens                                                               
often  as  it  is  a strategy  attorneys  apply  sometimes.  This                                                               
legislation  is needed  to  maintain equity,  which  should be  a                                                               
primary goal  and focus of the  committee.  Mr. Prax  said he had                                                               
not  given thought  to Section  1(d), which  will not  require it                                                               
under  cases in  which  the  state is  acting  with primacy  over                                                               
federal regulations.  He encouraged  the committee to contact the                                                               
United States  Environmental Protection  Agency (EPA)  or someone                                                               
in the federal government to  obtain their opinions directly.  He                                                               
proffered that  State agencies are  often overly  conservative in                                                               
their interpretation of these laws  and too concerned, therefore,                                                               
about  losing primacy.   He  was not  sure that  the EPA  and the                                                               
Department of Natural Resources  would object to this legislation                                                               
to the  degree that it would  withdraw primacy.  The  fact that a                                                               
party  has  issued  a  court action,  by  itself,  discourages  a                                                               
company from  moving forward,  and thus  he did  not see  harm in                                                               
maintaining equity.                                                                                                             
2:26:31 PM                                                                                                                    
CHAIR  KELLER   said  he  identified  with   Mr.  Prax's  remarks                                                               
regarding the state  needing to be overly cautious  with what the                                                               
federal  programs require,  and he  advised the  legislature must                                                               
stay on top of it at all times.                                                                                                 
REPRESENTATIVE GRUENBERG expressed the  need to consider the high                                                               
cost of litigation  and how the party with deep  pockets can make                                                               
it difficult for the  other party to be heard.   If the desire is                                                               
for equity,  he suggested the  committee consider what it  can do                                                               
to ensure the law is not misused.                                                                                               
2:28:29 PM                                                                                                                    
MR.  JUNGREIS  remarked  that he  and  the  Resource  Development                                                               
Council believe  something on  this order  is critical  to ensure                                                               
that the  projects, which are the  life blood of this  state, are                                                               
protected from this particular type of disruption.                                                                              
2:29:24 PM                                                                                                                    
ANDY ROGERS,  Deputy Director, Alaska State  Chamber of Commerce,                                                               
informed the  committee that the  Alaska State  Chamber (Chamber)                                                               
is a  member organization made  up of companies across  the state                                                               
and these  types of injunctions  are an ever-occurring  issue for                                                               
the Chamber.   The  business community  supports passage  of this                                                               
bill  and   when  legislation  receives  universal   support  and                                                               
agreement from  across the  state and across  a broad  section of                                                               
industries,  it carries  weight.   The Chamber  will continue  to                                                               
support the core concepts of  this legislation.  The Chamber went                                                               
on record  on behalf  of Alaska's  businesses and  encouraged the                                                               
committee to pass this legislation out of committee.                                                                            
2:31:23 PM                                                                                                                    
CHAIR KELLER announced he would leave public testimony open.                                                                    
2:32:11 PM                                                                                                                    
REPRESENTATIVE  GRUENBERG explained  there is  a body  of law  on                                                               
injunctions and  the committee should review  the background upon                                                               
which this bill is presented.                                                                                                   
CHAIR KELLER announced  his intent to take a vote  on the bill on                                                               
Friday.  [HB 47 was held over.]                                                                                                 
2:34:17 PM                                                                                                                    
There being no  further business before the  committee, the House                                                               
Standing Judiciary Committee meeting was adjourned at 2:34 PM.                                                                  

Document Name Date/Time Subjects
HB 292 ver. C.pdf HJUD 2/10/2014 1:00:00 PM
HB 292
HB 292 Sectional Analysis.pdf HJUD 2/10/2014 1:00:00 PM
HB 292
HB 292 Proposed Amendment C.1.pdf HJUD 2/10/2014 1:00:00 PM
HB 292
HB 292 Fiscal Note~Law.pdf HJUD 2/10/2014 1:00:00 PM
HB 292
HB 47 Sponsor Statement 2014.pdf HJUD 2/10/2014 1:00:00 PM
HB 47
HB0047A.pdf HJUD 1/30/2013 1:00:00 PM
HJUD 2/10/2014 1:00:00 PM
HB 47
CSHB47 ver. N Draft.pdf HJUD 2/10/2014 1:00:00 PM
HB 47
CSHB47 ver. N~Explanation of Changes.pdf HJUD 2/10/2014 1:00:00 PM
HB 47
HB 47 Testimony List.pdf HJUD 2/10/2014 1:00:00 PM
HB 47
HB 47 Fiscal Note~Court System 2014.pdf HJUD 2/10/2014 1:00:00 PM
HB 47
HB 47 Fiscal Note~DEC Air Quality 2014.pdf HJUD 2/10/2014 1:00:00 PM
HB 47
HB 47 Fiscal Note~DEC Water Quality 2014.pdf HJUD 2/10/2014 1:00:00 PM
HB 47
HB 47 Fiscal Note~DNR 2014.pdf HJUD 2/10/2014 1:00:00 PM
HB 47
HB 47 Fiscal Note~Law 2014.pdf HJUD 2/10/2014 1:00:00 PM
HB 47
AK Chamber of Commerce Support.pdf HJUD 1/30/2013 1:00:00 PM
HJUD 2/10/2014 1:00:00 PM
HB 47
HB 47 Support Document~DEC Authorizations & Permits.pdf HJUD 2/10/2014 1:00:00 PM
HB 47
HB 47 Support Document~DNR Permits.pdf HJUD 2/10/2014 1:00:00 PM
HB 47
HB 47 Support Document~Leg. Legal Memo.pdf HJUD 2/10/2014 1:00:00 PM
HB 47