Legislature(2003 - 2004)

03/07/2003 01:05 PM RES

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
                    ALASKA STATE LEGISLATURE                                                                                  
               HOUSE RESOURCES STANDING COMMITTEE                                                                             
                         March 7, 2003                                                                                          
                           1:05 p.m.                                                                                            
                                                                                                                                
                                                                                                                                
MEMBERS PRESENT                                                                                                               
                                                                                                                                
Representative Hugh Fate, Co-Chair                                                                                              
Representative Beverly Masek, Vice Chair                                                                                        
Representative Carl Gatto                                                                                                       
Representative Cheryll Heinze                                                                                                   
Representative Bob Lynn                                                                                                         
Representative David Guttenberg                                                                                                 
Representative Beth Kerttula                                                                                                    
                                                                                                                                
MEMBERS ABSENT                                                                                                                
                                                                                                                                
Representative Mike Chenault, Co-Chair                                                                                          
Representative Kelly Wolf                                                                                                       
                                                                                                                                
COMMITTEE CALENDAR                                                                                                            
                                                                                                                              
HOUSE BILL NO. 24                                                                                                               
"An Act relating to intergovernmental agreements regarding                                                                      
management of fish or game."                                                                                                    
                                                                                                                                
     - MOVED CSHB 24(RES) OUT OF COMMITTEE                                                                                      
                                                                                                                                
HOUSE BILL NO. 86                                                                                                               
"An Act relating to permits issued by the state."                                                                               
                                                                                                                                
     - HEARD AND HELD                                                                                                           
                                                                                                                                
PREVIOUS ACTION                                                                                                               
                                                                                                                              
BILL: HB 24                                                                                                                   
SHORT TITLE:AGREEMENTS ON MANAGEMENT OF FISH AND GAME                                                                           
SPONSOR(S): REPRESENTATIVE(s) WEYHRAUCH, WHITAKER                                                                               
                                                                                                                                
Jrn-Date   Jrn-Page                     Action                                                                                  
01/21/03     0037       (H)        PREFILE RELEASED (1/10/03)                                                                   
01/21/03     0037       (H)        READ THE FIRST TIME -                                                                        
                                   REFERRALS                                                                                    
01/21/03     0037       (H)        RES, JUD                                                                                     
03/05/03                (H)        RES AT 1:00 PM CAPITOL 124                                                                   
03/05/03                (H)        Heard & Held -- Meeting                                                                      
                                   Postponed to After Session --                                                                
                                   MINUTE(RES)                                                                                  
03/05/03                (H)        MINUTE(RES)                                                                                  
03/07/03                (H)        RES AT 1:00 PM CAPITOL 124                                                                   
                                                                                                                                
BILL: HB 86                                                                                                                   
SHORT TITLE:INJUNCTIONS AGAINST PERMITTED PROJECTS                                                                              
SPONSOR(S): REPRESENTATIVE(S)FATE                                                                                               
                                                                                                                                
Jrn-Date   Jrn-Page                     Action                                                                                  
02/10/03     0169       (H)        READ THE FIRST TIME -                                                                        
                                   REFERRALS                                                                                    
02/10/03     0169       (H)        RES, JUD                                                                                     
02/21/03                (H)        RES AT 1:00 PM CAPITOL 124                                                                   
02/21/03                (H)        Failed To Move Out Of                                                                        
                                   Committee                                                                                    
02/21/03                (H)        MINUTE(RES)                                                                                  
02/24/03                (H)        RES AT 1:00 PM CAPITOL 124                                                                   
02/24/03                (H)        <Bill Hearing Postponed>                                                                     
03/07/03                (H)        RES AT 1:00 PM CAPITOL 124                                                                   
                                                                                                                                
WITNESS REGISTER                                                                                                              
                                                                                                                                
REPRESENTATIVE BRUCE WEYHRAUCH                                                                                                  
Alaska State Legislature                                                                                                        
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:  Spoke as the sponsor of HB 24.                                                                             
                                                                                                                                
JIM POUND, Staff                                                                                                                
to Representative Hugh Fate                                                                                                     
Alaska State Legislature                                                                                                        
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:  Testified on HB 86; provided information                                                                   
about the changes made in the proposed committee substitute.                                                                    
                                                                                                                                
KATHRYN KURTZ, Attorney                                                                                                         
Legislative Legal and Research Services                                                                                         
Alaska State Legislature                                                                                                        
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:  Answered legal questions and addressed                                                                     
concerns relating to HB 86.                                                                                                     
                                                                                                                                
ACTION NARRATIVE                                                                                                              
                                                                                                                                
TAPE 03-11, SIDE A                                                                                                            
Number 0001                                                                                                                     
                                                                                                                                
CO-CHAIR HUGH FATE called the  House Resources Standing Committee                                                             
meeting  to order  at 1:05  p.m.   Representative's Fate,  Masek,                                                               
Gatto, Heinze, Lynn,  and Guttenberg were present at  the call to                                                               
order.   Representative Kerttula  arrived as  the meeting  was in                                                               
progress.                                                                                                                       
                                                                                                                                
HB 24-AGREEMENTS ON MANAGEMENT OF FISH AND GAME                                                                               
                                                                                                                                
CO-CHAIR FATE  announced that the  first order of  business would                                                               
be  HOUSE BILL  NO.  24, "An  Act  relating to  intergovernmental                                                               
agreements regarding management of fish or game."                                                                               
                                                                                                                                
Number 0076                                                                                                                     
                                                                                                                                
CO-CHAIR FATE noted  that HB 24 had been heard  on 3/5/03 and had                                                               
been  held for  the  purpose of  hearing  more public  testimony.                                                               
[Version  S. labeled  23-LS0135\S,  Utermohle,  3/4/03, had  been                                                               
adopted as a work draft.]                                                                                                       
                                                                                                                                
Number 0156                                                                                                                     
                                                                                                                                
REPRESENTATIVE MASEK turned attention to  page 1, line 6, and she                                                               
asked for  clarification as  to the  type of  board named  in the                                                               
bill.                                                                                                                           
                                                                                                                                
Number 0203                                                                                                                     
                                                                                                                                
REPRESENTATIVE   BRUCE  WEYHRAUCH,   Alaska  State   Legislature,                                                               
speaking  as one  of  the two  sponsors  of HB  24,  said it  was                                                               
intended to be  any board with management  jurisdiction over fish                                                               
and game  resources [such as]  the Alaska Department of  Fish and                                                               
Game (ADF&G).                                                                                                                   
                                                                                                                                
REPRESENTATIVE  MASEK   asked  Representative  Weyhrauch   if  he                                                               
thought  the   language  read  well   enough  to   reflect  [that                                                               
intention] in the bill.                                                                                                         
                                                                                                                                
REPRESENTATIVE  WEYHRAUCH   said  if  the  entity   charged  with                                                               
developing that with the National  Park Service (NPS) is going to                                                               
come  up with  that kind  of agreement,  it's great  to be  broad                                                               
enough  to incorporate  any  of those  entities  - department  or                                                               
board - with management jurisdiction  for the state over fish and                                                               
game resources, so it would broad  enough.  He offered his belief                                                               
that it  was intended to  be generally broad to  incorporate that                                                               
and "sweep it in."                                                                                                              
                                                                                                                                
Number 0326                                                                                                                     
                                                                                                                                
REPRESENTATIVE   GUTTENBERG  asked   for  an   overview  of   the                                                               
[intention] of  the bill and  what the  problems had been  in the                                                               
past.                                                                                                                           
                                                                                                                                
Number 0362                                                                                                                     
                                                                                                                                
REPRESENTATIVE WEYHRAUCH  discussed the  area in  question, which                                                               
is about  600,000 marine acres  in Glacier Bay National  Park and                                                               
Preserve that  are involved in  a jurisdictional  dispute between                                                               
NPS [and the State of Alaska].   He mentioned the quite title for                                                               
submerged lands, and management  jurisdiction of the fisheries in                                                               
those waters.   Representative Weyhrauch  said the  United States                                                               
Senate,  through S.  501, had  adopted a  bill that  required the                                                               
state  and the  federal  government to  enter into  co-management                                                               
agreements on fisheries in the waters  outside the park.  He said                                                               
this bill  [HB 24] is  intended to ensure that  any co-management                                                               
agreement  between  the State  of  Alaska  and NPS  is  reviewed,                                                               
because it is  important [to assert] that the state  did not cede                                                               
its  jurisdictional management  rights  over  fisheries in  those                                                               
waters to  NPS, so  [the federal  government] doesn't  become the                                                               
manager of Alaska's commercial fisheries.                                                                                       
                                                                                                                                
REPRESENTATIVE GATTO  said Steven Griles, Deputy  Secretary, U.S.                                                               
Department of  the Interior, indicated  that there are  more than                                                               
22,000  rivers,  streams,  and  lakes   in  Alaska  that  may  be                                                               
navigable  under applicable  federal  standards and  that it  was                                                               
time  that  the  federal  government  quit  acting  as  if  those                                                               
waterways belong to it.                                                                                                         
                                                                                                                                
REPRESENTATIVE  GATTO   expressed  concerns  about   the  federal                                                               
[government's  involvement  in  jurisdictional  issues],  but  he                                                               
noted he was in favor of the bill.                                                                                              
                                                                                                                                
CO-CHAIR FATE noted  that it was a big concern  to many committee                                                               
members and was  aired at the last meeting concerning  HB 24.  He                                                               
said it's  still a  concern whether  this bill  has an  effect on                                                               
that  particular aspect  of navigable  waters, although  it is  a                                                               
needed piece of legislation.                                                                                                    
                                                                                                                                
Number 0702                                                                                                                     
                                                                                                                                
[Note:    The  bill  packet also  contained  a  nearly  identical                                                               
proposed  sponsor  substitute,  Version  23-LS0135\Q,  Utermohle,                                                               
2/21/03, which was never adopted.   A motion to report Version Q,                                                               
CSHB 24(RES) was inadvertently made.]                                                                                           
                                                                                                                                
REPRESENTATIVE  HEINZE  moved  to  report CSHB  24  [Version  23-                                                               
LS0135\S,  Utermohle, 3/4/03]  out of  committee with  individual                                                               
recommendations and  the accompanying fiscal notes.   There being                                                               
no objection, CSHB 24(RES) was  reported from the House Resources                                                               
Standing Committee.                                                                                                             
                                                                                                                                
HB 86-INJUNCTIONS AGAINST PERMITTED PROJECTS                                                                                  
                                                                                                                                
CO-CHAIR FATE announced that the  next order of business would be                                                               
HOUSE BILL  NO. 86,  "An Act  relating to  permits issued  by the                                                               
state."                                                                                                                         
                                                                                                                                
Number 0776                                                                                                                     
                                                                                                                                
REPRESENTATIVE LYNN  moved to  rescind the  action of  failing to                                                               
move  HB  86  out  of  committee  [on  2/21/03],  and  asked  for                                                               
unanimous consent.   There being  no objection, HB 86  was before                                                               
the committee.                                                                                                                  
                                                                                                                                
Number 0812                                                                                                                     
                                                                                                                                
REPRESENTATIVE  LYNN  moved  to   adopt  the  proposed  committee                                                               
substitute  (CS),  labeled  23-LS0349\S, Kurtz,  3/6/03,  as  the                                                               
working  document.   There  being  no  objection, Version  S  was                                                               
before the committee.                                                                                                           
                                                                                                                                
The committee took an at-ease from 1:18 p.m. to 1:20 p.m.                                                                       
                                                                                                                                
Number 0850                                                                                                                     
                                                                                                                                
JIM  POUND,  Staff  to Representative  Hugh  Fate,  Alaska  State                                                               
Legislature, testified.   Mr. Pound  noted that some  changes had                                                               
been made to  the proposed CS because of some  concerns that were                                                               
expressed  at a  previous committee  meeting.   He  said the  one                                                               
concern is  that as the bill  was written, it may  be interpreted                                                               
that there's a possibility the  commissioner would not be able to                                                               
stop the project  for an error through the procedure  or if there                                                               
was  a legitimate  concern, under  [subsection] (a),  that was  a                                                               
legitimate  appeal  process.   Mr.  Pound  said [subsection]  (b)                                                               
provides  that the  commissioner is  able  to stop  a project  if                                                               
there's an error  in the procedure or if a  concern is brought to                                                               
him/her  based on  pertinent new  scientific  information or  new                                                               
recognized local knowledge.  He  indicated that the definition of                                                               
"permit" and which departments [the  bill] would affect were also                                                               
clarified.                                                                                                                      
                                                                                                                                
Number 1012                                                                                                                     
                                                                                                                                
REPRESENTATIVE GATTO  mentioned that he  is troubled by  the term                                                               
"pertinent new".  He indicated  that someone may  be able  to use                                                               
this language to stop a project.                                                                                                
                                                                                                                                
Number 1132                                                                                                                     
                                                                                                                                
CO-CHAIR FATE,  sponsor of HB 86,  noted that he was  not present                                                               
during the  last committee meeting  on HB  86 and he  offered his                                                               
understanding   that  the   word  "pertinent"   was  offered   by                                                               
Representative  Gatto as  a clarifying  amendment.   He suggested                                                               
that   [the  language]   "new  scientific"   is   not  just   new                                                               
information, but is "new scientific  information".  Co-Chair Fate                                                               
noted that he had accepted  "pertinent" as a clarifying amendment                                                               
that Representative Gatto had proposed.                                                                                         
                                                                                                                                
Number 1150                                                                                                                     
                                                                                                                                
REPRESENTATIVE GATTO indicated that  the language "not previously                                                               
disclosed" may be more appropriate.                                                                                             
                                                                                                                                
Number 1176                                                                                                                     
                                                                                                                                
REPRESENTATIVE HEINZE indicated that  the word "pertinent" seemed                                                               
clear to her.                                                                                                                   
                                                                                                                                
REPRESENTATIVE GATTO  talked about  a hypothetical  situation and                                                               
the extent to which  a person may go if it was  [his or her] goal                                                               
to stop  a project   He indicated that  an attorney may  find the                                                               
language to be ambiguous.                                                                                                       
                                                                                                                                
The committee took an at-ease from 1:30 p.m. to 1:34 p.m.                                                                       
                                                                                                                                
REPRESENTATIVE  GATTO  turned  attention to  Sec.  46.35.400  and                                                               
asked if there was a way to interpret the word "new".                                                                           
                                                                                                                                
Number 1435                                                                                                                     
                                                                                                                                
KATHRYN   KURTZ,  Attorney,   Legislative   Legal  and   Research                                                               
Services, testified.   She offered  her understanding  that there                                                               
are many ways to interpret the word "new".                                                                                      
                                                                                                                                
REPRESENTATIVE GATTO asked Ms. Kurtz for clarification.                                                                         
                                                                                                                                
MS. KURTZ said  this draft does not specify.   She remarked, "New                                                               
is new,  and when  you have a  word like 'new'  that is  a common                                                               
word, ...  you could ask  everyone sitting around the  table, and                                                               
if  you  [have]  different  ideas  about  what  new  means,  that                                                               
indicates the breadth of interpretation  which one could apply to                                                               
that  particular word."   She  said this  draft does  not have  a                                                               
particular timeline for "how new is new."                                                                                       
                                                                                                                                
CO-CHAIR FATE  asked, in  this context, if  "new" would  mean not                                                               
previously used.                                                                                                                
                                                                                                                                
MS. KURTZ, in response, said one might argue that.                                                                              
                                                                                                                                
REPRESENTATIVE HEINZE  asked Ms. Kurtz  if she could  foresee any                                                               
problem with [the language] "new scientific information".                                                                       
                                                                                                                                
MS. KURTZ  said there is  always the potential for  litigation in                                                               
almost  anything,  but  particularly  where  the  language  of  a                                                               
statute isn't  clear or  tends to  lend itself  to more  than one                                                               
meaning.   She said if  there are  people who interpret  the word                                                               
"new"  differently  and it's  important  enough  to them,  it  is                                                               
conceivable  that  there [is  a  potential]  for litigation  that                                                               
would revolve around the meaning of the word "new".                                                                             
                                                                                                                                
Number 1543                                                                                                                     
                                                                                                                                
REPRESENTATIVE HEINZE  indicated the language  "newly recognized"                                                               
would  also have  to  be looked  at [because  it  also refers  to                                                               
"new"].   She  asked, "Unless  there's a  real danger  of ...  us                                                               
opening up to litigation, are we splitting hairs here?"                                                                         
                                                                                                                                
MS. KURTZ  said she was  not sure how  to answer that,  since she                                                               
had missed the  [beginning] of the meeting and was  not sure that                                                               
she had  gotten a good  perspective of the whole  discussion that                                                               
had already taken place.                                                                                                        
                                                                                                                                
CO-CHAIR FATE stated  that the discussion was on the  use of [the                                                               
language] "pertinent new scientific  information" and the meaning                                                               
of "new".   He said it was discussed that  almost anything is not                                                               
immune to a cause of action  or to interpretation.  Co-Chair Fate                                                               
offered his  view as sponsor that  it would certainly have  to be                                                               
adjudicated as  to what "new" means.   He said he  didn't know if                                                               
[the committee] could  determine the meaning of  "new".  Perhaps,                                                               
he suggested,  it would  be up  to some judicial  body or  to the                                                               
commissioner, whom this is remanded  back to anyway if there's an                                                               
appeal, to determine what new means.                                                                                            
                                                                                                                                
Number 1680                                                                                                                     
                                                                                                                                
REPRESENTATIVE  KERTTULA suggested  that the  sponsor's intention                                                               
is that people  who have gone through some kind  of a process not                                                               
be  delayed  inappropriately.   She  said  the  committee  hadn't                                                               
talked  about what  injunctions  are normally  used  for or  what                                                               
enjoining really  means.   Representative Kerttula  indicated she                                                               
would like  Ms. Kurtz to  explain what  an injunction is  and how                                                               
that happens.   She suggested having a small  subcommittee on the                                                               
bill [with the  objective] of coming to an  understanding of what                                                               
the goal is, because the  language is "horribly" broad, and there                                                               
would be terrible problems with enforcement.                                                                                    
                                                                                                                                
Number 1765                                                                                                                     
                                                                                                                                
MS.  KURTZ explained  that an  injunction  is a  remedy that  the                                                               
court can offer,  and that the court might  give monetary damages                                                               
in some  suits.  She said  an injunction is where  one party goes                                                               
to the court and asks the  court to make another party stop doing                                                               
something.  She said  in the case of a project,  it might be used                                                               
to  stop  work on  a  project  until  [the party  requesting  the                                                               
injunction] gets its  lawsuit and other issues figured  out.  The                                                               
[injunction]  can remain  as long  as the  court determines  it's                                                               
necessary, she said.                                                                                                            
                                                                                                                                
REPRESENTATIVE KERTTULA  asked what  standards are  normally used                                                               
in Alaska.  She noted that  an injunction is pretty dramatic, and                                                               
normally the court doesn't like to grant injunctions.                                                                           
                                                                                                                                
MS. KURTZ offered her belief that  the court would be looking for                                                               
some sort of irreparable harm  that might occur if the injunction                                                               
is not granted.                                                                                                                 
                                                                                                                                
REPRESENTATIVE KERTTULA  asked if  it would have  to be  a pretty                                                               
dramatic [situation] for the court to take action, normally.                                                                    
                                                                                                                                
MS.  KURTZ,  in  response,  said there  are  different  kinds  of                                                               
injunctions,  but  it's  certainly   something  the  court  would                                                               
consider.                                                                                                                       
                                                                                                                                
REPRESENTATIVE  KERTTULA  asked  if  the  court  would  grant  an                                                               
injunction if it  felt all of the questions of  the person asking                                                               
to stop  a project  had been answered  previously, if  the agency                                                               
had already looked at everything,  and if the court was satisfied                                                               
that had happened.                                                                                                              
                                                                                                                                
MS. KURTZ  said the court  does not  have to grant  an injunction                                                               
just because it  is asked for one.  She  explained that the court                                                               
would certainly  look at the merits  of the argument and  [try to                                                               
determine] whether it saw that harm happening or not.                                                                           
                                                                                                                                
Number 1850                                                                                                                     
                                                                                                                                
MS.  KURTZ,  in  response  to   a  question  from  Representative                                                               
Kerttula, said there could be many  reasons why one would ask for                                                               
an  injunction.   It  could  occur  in  many different  types  of                                                               
lawsuits being brought for many different reasons.                                                                              
                                                                                                                                
REPRESENTATIVE  KERTTULA asked  if  this  bill would  completely,                                                               
radically  change  how injunctions  are  governed  in Alaska  for                                                               
permitting.                                                                                                                     
                                                                                                                                
MS.  KURTZ said  this  bill  would seem  to  set a  significantly                                                               
different standard.                                                                                                             
                                                                                                                                
REPRESENTATIVE KERTTULA asked  Ms. Kurtz if she was  aware of any                                                               
other states that limit injunctions for permits in this manner.                                                                 
                                                                                                                                
MS.  KURTZ, in  response, said  she was  not personally  aware of                                                               
that.                                                                                                                           
                                                                                                                                
REPRESENTATIVE KERTTULA said she  thought that helped explain her                                                               
basic concerns about the bill.                                                                                                  
                                                                                                                                
Number 1920                                                                                                                     
                                                                                                                                
CO-CHAIR FATE  said there had  been cases where there  was either                                                               
an  objection  in  the  best public  interest,  which  was  never                                                               
clearly  defined, or  an objection  to an  "eyesore," which  some                                                               
people didn't [view] as an  eyesore, that helped in obtaining the                                                               
injunction.  He offered his belief  that the 9th Circuit Court of                                                               
Appeals is  80 percent  wrong, and that  it makes  decisions that                                                               
stop projects.   Co-Chair Fate  said he wanted to  draw attention                                                               
to [his belief] that the court is not immune to bias.                                                                           
                                                                                                                                
REPRESENTATIVE KERTTULA said she thought  those were the kinds of                                                               
facts  that are  really important.   She  suggested that  maybe a                                                               
subcommittee could  [identify] what  the intent [of  bill] really                                                               
is.   Representative  Kerttula  said she  thought  this piece  of                                                               
legislation was  enormously broad in  its impact, and  not really                                                               
directed to what the concern is.                                                                                                
                                                                                                                                
Number 1997                                                                                                                     
                                                                                                                                
CO-CHAIR FATE  noted that [attorneys]  in [Legislative  Legal and                                                               
Research Services] had reviewed [the  bill].  He remarked, "If it                                                               
is the  intent to  slow a bill  so that in  the face  of mounting                                                               
committee assignments, because  of the heavy load  that is coming                                                               
down on us, ... to slow this bill  and stop it because of that, I                                                               
won't tolerate  it for that reason."   He continued by  saying if                                                               
there  is a  valid reason  that [committee  members] think  there                                                               
should be a subcommittee, he would entertain it.                                                                                
                                                                                                                                
CO-CHAIR FATE noted that the bill  still has to be heard in front                                                               
of the  House Judiciary  Standing Committee, and  he said  it was                                                               
his hope that  some of these issues [would be  addressed] at that                                                               
time.   Co-Chair Fate noted the  intent of the bill  was to allow                                                               
projects to  proceed without stopping  for reasons that  were not                                                               
valid.   He suggested  that those valid  reasons are  embodied in                                                               
this  bill, so  that [a  decision] can  be remanded  back to  the                                                               
commissioner;  so there  is an  appeal process,  and there  is no                                                               
design to  hold any  kind of  a public appeals  process up.   Co-                                                               
Chair Fate  said [the  bill] is  designed to  allow a  project to                                                               
[proceed] without some type of nebulous reason for stopping it.                                                                 
                                                                                                                                
REPRESENTATIVE KERTTULA  posed a hypothetical situation,  and she                                                               
asked  if there  would  there  be a  risk  that [individuals  who                                                               
object to  a permitting  project] would have  to file  a lawsuit,                                                               
and yet wouldn't get an injunction under this standard.                                                                         
                                                                                                                                
MS.  KURTZ,   in  response,  said  that   raises  an  interesting                                                               
question, because  this does require new  scientific information,                                                               
so,  yes, there  is a  risk  that somebody  would interpret  this                                                               
statute to block that type of  suit.  She offered her belief that                                                               
if the state constitution is  being violated, it would also raise                                                               
questions about the validity of a statute.                                                                                      
                                                                                                                                
REPRESENTATIVE KERTTULA remarked, "So,  you've got the statute at                                                               
risk, in and of itself."                                                                                                        
                                                                                                                                
MS. KURTZ responded, "In that hypothetical [situation], yes."                                                                   
                                                                                                                                
Number 2166                                                                                                                     
                                                                                                                                
REPRESENTATIVE GUTTENBERG asked  if there was a  certain point of                                                               
harm, potential harm,  imminent danger, or damage that  had to be                                                               
reached in order to get an  injunction, and what had to be proved                                                               
to the courts in order to get an injunction.                                                                                    
                                                                                                                                
MS. KURTZ  said she wished that  she'd been prepared with  a good                                                               
case setting  forth the exact  standards that the  Alaska Supreme                                                               
Court has established  for granting injunctions.  She  said it is                                                               
something that  is frequently requested,  and in preparing  for a                                                               
trial court argument,  one would certainly have it in  hand.  Ms.                                                               
Kurtz said  it becomes the  decision of  the court as  to whether                                                               
that standard has been satisfied in  a particular case.  She said                                                               
generally  there  is  presentation   of  some  sort  of  evidence                                                               
required to  get an injunction, which  might take the form  of an                                                               
affidavit, for instance.                                                                                                        
                                                                                                                                
REPRESENTATIVE  HEINZE  asked  if   the  courts  would  grant  an                                                               
injunction for lack of evidence or lack of information.                                                                         
                                                                                                                                
MS. KURTZ  explained that  if the  court doesn't  have sufficient                                                               
information to evaluate a legal  claim, she would guess that [the                                                               
court]  would not  grant  an  injunction based  on  that lack  of                                                               
information.                                                                                                                    
                                                                                                                                
REPRESENTATIVE HEINZE remarked, "So, they could."                                                                               
                                                                                                                                
MS. KURTZ,  in response, said  in general  she would say  a court                                                               
needs  sufficient  information to  evaluate  [both  sides of  the                                                               
issue].                                                                                                                         
                                                                                                                                
Number 2273                                                                                                                     
                                                                                                                                
REPRESENTATIVE GUTTENBERG asked how  the word "pertinent" applies                                                               
to  [the language]  "pertinent new  scientific information".   He                                                               
remarked,  "It seems  to  me  that the  whole  concept under  new                                                               
scientific  information's not  [really] pertinent.   'New'  seems                                                               
... to  allow the question;  ... you can  just keep asking  it if                                                               
something comes up that's [a] pertinent situation on a permit."                                                                 
                                                                                                                                
REPRESENTATIVE GUTTENBERG  asked if  this allows  new information                                                               
to be reevaluated constantly every time something happens.                                                                      
                                                                                                                                
MS. KURTZ asked Representative Guttenberg  if he envisioned court                                                               
cases that go on forever.                                                                                                       
                                                                                                                                
Number 2386                                                                                                                     
                                                                                                                                
REPRESENTATIVE  GUTTENBERG posed  a situation  in which  a person                                                               
frivolously wants to stop a  project, and every day something new                                                               
happens that  might not have  been pertinent the day  before, but                                                               
would  be pertinent  in the  following days.   He  asked if  that                                                               
would "keep  the ball  rolling" for that  person who  is [looking                                                               
for a reason to stop a project].                                                                                                
                                                                                                                                
MS.  KURTZ  told  the  committee  that the  court  system  is  an                                                               
institution with limited  resources that tends to not  like to be                                                               
confronted with the same issue repeatedly.                                                                                      
                                                                                                                                
REPRESENTATIVE  GUTTENBERG  asked,  if  [the  situation  were  to                                                               
change],  whether  it would  be  considered  "new and  pertinent"                                                               
[information].                                                                                                                  
                                                                                                                                
REPRESENTATIVE HEINZE  suggested returning to the  [original bill                                                               
that  did not  contain the  language] "new  and pertinent."   She                                                               
asked if [this language] would [cause] problems.                                                                                
                                                                                                                                
CO-CHAIR FATE  explained that  this isn't  new language;  it came                                                               
out  of  other  pieces  of   legislation  including  the  "public                                                               
interest land  legislation," and  that it  had been  used before.                                                               
He said he  is prepared to delay [the bill]  so that [Legislative                                                               
Legal and Research Services]  could address the constitutionality                                                               
of [the language].   Co-Chair Fate suggested that  there's no use                                                               
to  put a  bill, regardless  of  how good  it is  thought to  be,                                                               
through  the  process  if  it's   going  to  have  constitutional                                                               
challenges.                                                                                                                     
                                                                                                                                
CO-CHAIR FATE said  he had no problem in finding  out whether the                                                               
bill  [would potentially]  have  constitutional  challenges.   He                                                               
said  there is  a  need  for legislation  such  as  this, and  he                                                               
offered  an example  where a  permit had  been issued,  and after                                                               
approximately  $4 million  and seven  years [of  litigation], the                                                               
permit  was  basically  reissued,  and   it  was  because  of  an                                                               
enjoinment to stop  the project.  Co-Chair Fate  remarked, "So it                                                               
does happen, and  as we try to progress and  develop our State of                                                               
Alaska,  and do  it properly,  ...  we don't  need somebody  that                                                               
doesn't  agree with  us, from  outside or  within the  state, ...                                                               
stopping projects that have been properly permitted."                                                                           
                                                                                                                                
Number 2512                                                                                                                     
                                                                                                                                
REPRESENTATIVE GATTO offered  his belief that the  bill needed to                                                               
be  moved forward  with the  new [language  as it  appears].   He                                                               
noted that [the bill] was  going to the [House Judiciary Standing                                                               
Committee],  which   he  suggested   [could  address   the  issue                                                               
regarding the language] better than this committee.                                                                             
                                                                                                                                
CO-CHAIR FATE  said it is  his hope  that before [the  bill moves                                                               
from committee],  there would be  some determination on  either a                                                               
constitutional   fix  or   the   constitutionality   of  it;   as                                                               
Representative Kerttula suggested, it might be problem.                                                                         
                                                                                                                                
REPRESENTATIVE MASEK  said she had  pretty broad concerns  on the                                                               
constitutional  [aspect]  of the  bill,  and  she felt  that  the                                                               
committee should be granted the  opportunity to hear more on this                                                               
subject matter,  because it is  a resource  issue.  She  said she                                                               
would  feel  more comfortable  getting  more  background on  [the                                                               
bill] before moving it [from committee].                                                                                        
                                                                                                                                
Number 2643                                                                                                                     
                                                                                                                                
CO-CHAIR FATE  clarified that  a motion  had not  been made.   He                                                               
noted the [committee's] very tight  schedule and his intention to                                                               
request  [Legislative  Legal  and Research  Services  to  address                                                               
issues related to the bill].   Co-Chair Fate indicated the intent                                                               
of the  bill is to get  the state moving in  the proper direction                                                               
for proper development.                                                                                                         
                                                                                                                                
Number 2721                                                                                                                     
                                                                                                                                
REPRESENTATIVE  HEINZE  objected.    She said  she  thought  [the                                                               
concerns  could   be  addressed   in  House   Judiciary  Standing                                                               
Committee].                                                                                                                     
                                                                                                                                
CO-CHAIR FATE agreed that it can  be handled in there, but didn't                                                               
fully agree that  it could be handled any  more expediently there                                                               
than in the current committee.                                                                                                  
                                                                                                                                
[HB 86 was held over.]                                                                                                          
                                                                                                                                
ADJOURNMENT                                                                                                                   
                                                                                                                                
There being no  further business before the  committee, the House                                                               
Resources Standing Committee meeting was adjourned at 2:00 p.m.                                                                 

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