03/07/2003 01:05 PM House RES
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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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