HB 355-FIRE;FOREST LAND; CRIMES;FIRE PREVENTION  3:20:29 PM CHAIR CLAMAN announced that the first order of business would be CS FOR HOUSE BILL NO. 355(RES), "An Act relating to the crime of criminally negligent burning; relating to protection of and fire management on forested land; relating to prohibited acts and penalties for prohibited acts on forested land; requiring the Alaska Supreme Court to establish a bail schedule; and providing for an effective date." [Before the committee was the working draft, CSHB 355(RES), labeled 30-LS1382\J.] 3:20:59 PM REPRESENTATIVE DAVID GUTTENBERG, Alaska State Legislature, explained that HB 355 upgrades how the state deals with forest fires, and clarifies language. He remarked that the state cannot continue to have forest fires the size of the State of Delaware year, after year, after year. [Representative Guttenberg then paraphrased from the document titled "HB-355 Fire Prevention and Crimes on Forested Land.] He pointed out that the some of the fires included: the Sockeye Fire that caused $10 million in damages and was started by a human due to careless open burning; the Card Street Fire in Soldotna was human caused; the Funny River Fire was human caused and it was in close proximity to the Card Street Fire from the previous year; the Fairbanks Rex Bridge Fire near Clear was caused by lightening; and the 2017 McHugh fire was started by a campfire left behind by a hiker in Chugach State Park. The Division of Forestry is trying to reduce the incidents of fire and set up a schedule where people who simply do not have a burn barrel is one thing, but someone who lets a fire get out of control is something else, and someone that intentionally sets a forest fire is another classification. Portions of this legislation deal with more fire prevention programs, "and going down the road and doing that stuff. Smokey the Bear kind of world." This legislation includes some changes in statute to reflect that the names have changed "so that the Division of Forestry is actually what is referred to now where fire suppression is actually what they're doing because those names change over time," he said." 3:23:58 PM REPRESENTATIVE KOPP asked whether the intent of this legislation is to update Title 41 statutes related to burning because the statutes had not been reviewed in approximately 60 years. REPRESENTATIVE GUTTENBERG responded that Representative Kopp was correct. REPRESENTATIVE KOPP asked whether anyone could speak to the changes in the different sections of HB 355. 3:25:09 PM JOHN "CHRIS" MAISCH, Director & State Forester, Division of Forestry, Department of Natural Resources (DNR), advised that the last time these statutes were addressed was in 1961, and a large portion of this bill updates the language for format and the outdated style of writing and outdated terminology. He paraphrased from the Sectional Analysis for Version J [included in the members' packets], which read as follows [original punctuation provided]: Section 1. Amends AS 11.46.427(a)(2) by adding references to AS 41.15.060 -41.15.120 to make it easier for agencies to coordinate enforcement of similar statutes that appear in different Titles of law. Section 2. Amends AS 41.15.010 to add the word forested land to the intent language of this statute. Forested land is already defined in AS 41.15.170 and brings consistency to terminology used in the statutes. Section 3. Amends AS 41.15.040 by updating terminology by deleting the "division of land" and adding "division of forestry". Clarifies the right of entry to public or privately-owned land for the purpose of preventing, suppressing, and controlling a wildland fire to include for the purpose of "investigating" and "when responding to a wildland fire or suspected fire or administering the provisions of this chapter." 3:27:05 PM MR. MAISCH explained that the words "at any time" were struck because it was believed that "any time" was too broad and by listing these out, it provided more specificity to that right of entry piece. The prior statute read "preventing, suppression, and control of wildland fire" and the term "investigating" was added because the 1961 prevention was a holistic term that included fire investigation for cause and determination. Section 4. Adds a new subsection (b) to AS 41.15.040 that clarifies that a person may not interfere with or prohibit access authorized under (a) of this section, which is the right to enter for the purposes stated. MR. MAISCH explained that the intent was to make clear to the lay reader especially, that "investigating" was one of the reasons the state had the right to enter the property. Clearly, he advised, during an emergency that is one thing, but after an emergency, if the division does not have permission from the landowner to enter, it must seek a search warrant because the landowner has standard protections under criminal or constitutional law. He related that his prevention officers do not carry badges or guns, they are peace officers, which is defined later in the section. This language is solely for the purposes of this chapter, and wildland and fire prevention is related to the narrow definition of peace officer, he explained. Section 5. Amends AS 41.15.050 Fire Season to allow the commissioner the ability to designate other periods as fire season at any time in order to allow open burning only by permit or to prohibit open burning. Section 6. Amends AS 41.15.060. Permits. To include obtaining a permit for setting of fires, use of burning devices, and other activities and use of land that increases fire danger. This would include burning devices such as bum barrels, a common source of urban interface ignitions. This section is also amended to remove the type of offense a violation of this section would be and relies on a new section to establish types of violations. 3:28:55 PM MR. MAISCH explained that the language is more specific as to why the person is obtaining that permit. The current permit system is only in place during fire season, which is the period of time that is statutorily designated. The process, he explained, is that a person can go online to self-issue a permit which includes educational information about safe burning practices and the things they must have on hand if they are going to burn. Each day, the Division of Forestry opens and closes burning based on conditions, he related, which could be fire weather, availability of resources to respond to an incident if it is already tied up with other wildland fire activities, and it outlines the things a person must do to safely use best practices to burn. Most importantly, the person is to call in every day to determine whether it is a safe day to burn, he advised. Section 7. Adds a new subsection to AS 41.15.060 stating that a person may not participate in any activities that increase fire danger without a permit as prescribed by the commissioner in regulation. Section 8. Amends AS 41.15.70. Disposal of burning materials to read "may not discard ... burning materials on forested land." Repeals language on the type of violation this offense would be and relies on amendments in Section 13 of this bill that provides a new range of violations. It also removes a reference to the "fire season" as the period of time this section applies and removes a reference to "public or private land". Section 9. Amends AS 41.15.090. Building or leaving fires. To read " ... may not start a fire ... without first clearing the ground." The type of offense for a violation of this section is removed and relies on a new section to establish types of violations. Sections 10. Amends AS 41.15.090 by adding a new subsection (b) A person who starts a fire in or near forested land may not leave the fire before totally extinguishing the fire. This change makes it very clear that leaving a fire unattended will result in consequences. Section 11. Clarifies AS 41.15.100 Setting fires without consent. Updates language to "may not set on fire forested land ... " to make this section consistent with terminology and intent. The type of offense for a violation of this section is repealed and relies on a new section to establish types of violations. Section 12. Amends AS 41.15.110 Uncontrolled spread of fire; leaving a fire unattended by repealing the type of offense for a violation of this section and relies on a new section to establish types of violations. Subsection (b) has verbiage change to shall, a positive action as opposed to the deleted current language "who neglects to." New language is added to make it clear that a person may not leave a fire unattended and the type of offense for a violation of this section is removed and relies on a new section to establish types of violations. Subsection (c) updates terminology and makes it clear in any criminal action brought under this section that the escape of a fire may be evidence that the person acted knowingly. This change helps define mental state. Section 13. Amends AS 41.15.120 by including the term investigate as one of the criteria for when an officer or employee of the United States or the state who is authorized to prevent and suppress fire requests a person to assist with such efforts. It also adds the word shall as opposed to "fails to" in determining if a person is in violation of the statute. The type of offense for a violation of this section is removed and relies on a new section to establish types of violations. Section 14. Amends AS 41.15.130 Backfires. Adds the terminology and burnouts to allow fire suppression activity as "directed by an officer or employee of the U.S. or state who is authorized ... " and makes it clear that AS 41 .15.045 (Civil immunity) applies to the activities under this section. 3:31:27 PM MR. MAISCH explained that Section 14 updates some terminology, and "backfires" is the term used when the division lights fires to fight fire, but the more common term is "burnout," which is similar to a backfire, except backfire is a more outdated term. When speaking with firefighters these days, they would rarely use that language, firefighters refer to using fire to fight fire as a burnout operation. The specific statutes are cited and it makes some clarification as to when fire is used, as opposed to the general term backfire. Section 15. Repeals and reenacts AS 41.15.140 to establish a range of violations and fines that increase with the seriousness of the offense. This section also links to the criminal statutes to improve the understanding and consistency between enforcement agencies and the courts. Subsection (a) makes it clear that if AS 41. 15.150 applies, a felony charge, the following sections do not apply. Subsection (a)(l) establishes a class A misdemeanor offense for violations of AS 41.15.010- 41.15 .130 for persons who knowingly violate this section. Subsection (a)(2) establishes a fine amount in accordance with AS 12.55 Section 16. Amends AS 41.15.150 to provide specific criteria for criminal burning in the first degree if (a)(l) the person violates AS 41.15.155, and (2) a provision of 41.15.010-41.15.130 or a regulation adopted under AS 41.15.010-41.15.130 Subsection (b) provides for a class B felony if in violation of subsection (a) of this section and is punishable as provided in AS 12.55 the Sentencing and Probation Chapter of Title 12. Section 17. Amends AS 41.15.150 by adding a new section to provide specific criteria for criminal burning in the second degree if the person (a)(l) knowingly sets a fire, (2) with criminal negligence, the person (a) permits the fire to spread beyond the person's control or (b)fails to prevent the fire from spreading to forested land or other flammable material and (3) as a result, the fire burns forested land or other flammable material located or growing on land that is not owned, possessed or controlled by the person. Subsection (b) provides for a class C felony if in violation of subsection (a) of this section and is punishable as provided in AS 12.55 the Sentencing and Probation Chapter of Title 12. Subsection (d) provides for an upgrading violation to a class B felony if the initial setting of the fire is in violation of AS 41.15.010 - 41.15. 130 or a regulation adopted under AS 41.15.010 - 41.15.130. Section 18. Amends AS 41.150.160. Double damages in civil actions to clarify applicable statutes for this provision. Section 19. Amends AS 41.15.170 to add paragraph (5) "knowingly" which has the meaning in AS 11.81.900 and adds paragraph ( 6) "recklessly" which has the meaning given in AS 11.81 .900. Section 20. Amends AS 41.15.950 to add (b)(4) a new subsection to provide clear authority to issue a citation to a person who violates a provision of AS 41.15.010 - 41.15.170 or a regulation adopted under this chapter. Section 21. Adds a new section AS 41.15.960 directing the supreme court to establish a bail schedule for violations of statute specified in this bill. Section 22. Repeals AS 41.15.080 which was a section on equipment and notice requirement for operators of a conveyance on or above forested land to be equipped with a receptacle for the disposal of burning material, shall post or display a copy of AS 41.15.050 - .080 and 41.15.140 in a conspicuous place. Additionally, an operator of a milling, logging or commercial operation shall also post and display a copy of the statute per the previous notation and if found in violation of this section, is guilty of a misdemeanor. Section 23. Amends the uncodified law of the State of Alaska by adding a new section to read: TRANSITION: REGULATIONS. The Department of Natural Resources may adopt regulation necessary to implement the changes made by this Act. The regulation take effect under AS 44.62 (Administrative Procedure Act), but not before the effective date of the law implemented by the regulation. Section 24. Provides courts 120 days to establish bail schedule required by Section 21. Section 25. Sections 23 and 24 take effect immediately under AS 01.10.070 (c) Section 26. Except as provided in Section 25, this Act takes effect July 1, 2018. 3:32:52 PM MR. MAISCH offered that the whole purpose behind HB 355 is about fire education and preventing human-caused wildfires. He pointed to the document on the committee table titled, "HB 355 Fire Prevention and Crimes on Forested Land" and advised that approximately 80 percent of the fires in Alaska are the result of humans, especially around communities. He pointed to the examples of five different wildfires in the last few years that have cost the general fund, $20 million in one case, $10 million in another case, and significant loss of structures for primary residents. He related that even if one of those fires could be prevented, it saves the state significant general fund monies, and significant damage to private individuals. 3:33:33 PM REPRESENTATIVE KOPP referred to Sec. 2, [AS 41.15.010], page 2, lines 4-7, which read as follows: It is the intent of AS 41.15.010 - 41.15.170 to provide protection from wildland fire and other destructive agents, commensurate with the values at risk, on forested land that is owned privately, by the state, or by a municipality. REPRESENTATIVE KOPP offered a scenario of a fire, such as the Sockeye Fire, that would sweep through a forested land and then move through a residential area that is solely made up of homes. He asked whether the statutes that come into play to address the negligent burning go over to Title 11 in those areas and the Title 41 offenses, or if it is all the same event as to enforcement. The state has these mirror sets of laws between Titles 11 and 41, and he said that he would like to have an idea of the interplay between the two statutes. MR. MAISCH responded that in Title 41, the definition of forested land is broad as it includes, brush, grass, and basically any flammable organic material. Therefore, it doesn't matter where the fire occurs on the landscape, it is what the division calls the "urban interface" which would be communities and subdivisions, small villages, or in the true wildlands which would be more like forest land. The Title 41 statute would apply whether it is in an urban or rural setting as far as the enforcement of the burning statutes. He explained that a portion of this bill does cross-reference the criminal part over to the criminal code. Currently, the only ability the division has is to issue a violation for the violation of these statutes, which is a mandatory court appearance as well as coordination with the District Attorney's Office. It is rare that the division takes that that action because it has to be a serious case as the courts are already tied up with more important matters. This legislation would offer the division more of a range of options in dealing with infractions of the burn regulations, he explained. 3:35:51 PM REPRESENTATIVE KOPP surmised that there are solely civil violations here, and there are offenses here that are not misdemeanors. MR. MAISCH answered that the division is proposing a bail schedule similar to a traffic ticket, to be approved by the Alaska Supreme Court. He said, "Not a maximum of $500, but they would establish the amounts based on the type of offense in the regulations, a class A misdemeanor offense, and then two felony offenses that are both at a class B and C level. He noted that this is a scaled approach to enforcement and as the type of offenses committed become more serious, potentially there is a greater punishment, and that is the criminal phase. Currently, he advised, the division has the ability to recover costs on the civil side, and that is oftentimes how the division recovers costs. 3:36:55 PM REPRESENTATIVE REINBOLD asked whether Mr. Maisch was familiar with "Firewise?" MR. MAISCH responded that Firewise is a program the division is actively promoting, it offers education, and it works directly with the homeowners and communities. REPRESENTATIVE REINBOLD advised that she has participated in Firewise and it provides excellent programs. Firewise has helped out with private property and it also helps with trail building efforts to decrease the amount of debris and materials that would stimulate fires. She asked whether Mr. Maisch works with the "Hot Shots?" MR. MAISCH answered that the division is the "Hot Shots," and he would be happy to talk about the crews because they are important resources to the division and are equivalent to a "smoke jumper" in terms of the level of training and professionalism. REPRESENTATIVE REINBOLD advised that she has tried for approximately five years to get them into her area but it is competitive" because they are in high demand. She commented that they are extremely well trained and professional, but she ended up using prisoners to help clear the debris to reduce the fire hazards in her area and "they were awesome with the chainsaw." 3:38:56 PM REPRESENTATIVE REINBOLD referred to Sec. 5. [AS 41.15.050], page 2, lines 21-30, and asked whether there are any changes in permitting. MR. MAISCH replied that there are no changes to permitting, and that Section 5 clarifies that the commissioner has the authority, at any time, to extend the fire season based on need. 3:39:27 PM REPRESENTATIVE REINBOLD referred to Sec. 10. [AS 41.15.100], page 3, lines 22-23, which read as follows: (b) A person who starts a fire in or near forested land may not leave the fire before totally extinguishing the fire. REPRESENTATIVE REINBOLD asked whether there is a definition of "totally extinguishing the fire." MR. MAISCH responded that the division points out that a person must be able to touch it with their hand. He explained that "cold and out" is the common way in which firefighters will look when performing mop up on a fire to make sure a hot ember is not covered in ash. Smokey Bear, the most iconic figure internationally, offers the good message of, "stir the fire." The fire must be dead-out and the best way to determine whether a fire is dead-out is by touch. He offered that the division's education programs focus on that, it offers school programs, it is at the fairs around the state, and it is at all community events where it has an opportunity to see and meet a lot of people. The division's prevention officer teaches safe burning practices, including how to properly extinguish a campfire to be certain it is dead-out, he remarked. 3:40:52 PM REPRESENTATIVE REINBOLD asked whether the division runs the Smokey Bear program. MR. MAISCH answered that the United States Forest Service has the copyright for Smokey the Bear, but yes, the division has its own Smokey the Bear costumes in every area office, and they are active with Smokey the Bear type of issues. 3:41:12 PM REPRESENTATIVE REINBOLD referred to Sec. 18. [AS 41.15.160], page 5, lines 26-31 and page 6, lines 1-3, and paraphrased that "you can double the damages in civil actions." She asked Mr. Maisch to elaborate. MR. MAISCH replied that double damages is the standard starting point of civil recovery, and there are many reasons for a fire, such as accidental and negligent, negligent, or a lot of different standards that the division is reviewing. He pointed out that double damages is the standard starting point for cost recovery and it typically gets the attention of the party the entity is trying to recover costs from, typically they settle for insurance limits, depending upon the situation. The division is not out to bankrupt an individual or a business, but it depends on how egregious the offense, he offered. 3:42:24 PM ANNE NELSON, Senior Assistant Attorney General, Natural Resources Section, Civil Division (Anchorage), Department of Law, explained that the double damages provision is available to any person, as well as governmental entities, that have incurred suppression costs. She described that it is a mechanism that functions not only as a deterrent, but also as a method for the state, in this case the Division of Forestry, to recoup the costs of fighting a fire. This provision is also available to property owners who may have lost property during a fire, she offered. 3:42:48 PM REPRESENTATIVE REINBOLD asked whether the double damages only include the suppression costs, or does it include property damage to the private landowner. MR. MAISCH answered that for the division, it is simply trying to recover its costs of preventing the fire. Although, he offered, sometimes when there are not sufficient insurance proceeds, the division will subordinate itself and first let the damaged homeowner be made whole for the damages they suffered before the state will then step in and recover costs. Typically, the division does not go for the value of the timber or the land, it is just the suppression costs, he said. 3:43:47 PM REPRESENTATIVE REINBOLD referred to Secs. 21 and 24 and noted that they go hand-in-hand with regard to the bail schedule and asked whether the division has 120 days to develop a bail schedule. MS. NELSON responded that the Alaska Supreme Court must adopt a bail schedule. Under this bill, the Division of Forestry would adopt regulations implementing these statutes and create the bailable offenses, which are essentially non-criminal tickets that can be satisfied without a court appearance by simply paying the fine. Once the regulations have been through the public comment period and are properly adopted under the Administrative Procedures Act (APA), those regulations would be sent to the Alaska Supreme Court with a suggested bail schedule, she explained. The Alaska Supreme Court would then review the regulations and, she opined, it would publish them under Administrative Rule 43. 3:45:08 PM CHAIR CLAMAN opened public testimony on HB 355. 3:45:51 PM BRENDA AHLBERG, Kenai Peninsula Borough, advised that on behalf of Mayor Charlie Pierce and the Kenai Peninsula Borough, they support the enactment of HB 355. As the Kenai Peninsula's population continues to grow, so too does the expectation that wildfires must be reduced using combined strategies. Too often, she pointed out that people quickly lose the sense of awareness or fail to practice prevention after the response to wildfires and costly rehabilitation measures have been completed for the season. This bill creates an updated framework that addresses fire prevention and enforcement actions aimed at reducing risk, educating the public through outreach, and recognizing the movement toward establishing fire adapted communities. She commented, "Let's face it, we live in the trees, the wildland- urban interface (WUI) and fuels reduction projects on private or public landholding should compliment fire as a natural occurrence on the landscape." Approximately 98 percent of all fire starts on the Kenai Peninsula are human caused and that is not acceptable. As the WUI continues to intermingle with forested land, and as people continue to live in the trees, there is a need to recognize that minimizing wildfire risk is a shared responsibility among all landowners, she remarked. 3:47:39 PM JAMES SQURYES noted his appreciation for the amendment process that took place during the last committee of referral, but there is still work to be accomplished on HB 355. He noted that he has been concerned for some time with AS 42.15. He offered hope that legislators use this opportunity to make additional amendments to this bill to bring the statutes in line with the constitutional elements that legislators swore to uphold under Article 12, Sec. 5, of the Constitution of the State of Alaska. In particular, Sec. 3 of the bill refers to AS 41.15.040, the right of entry to control and suppress fires, needs to be realigned with Article 1, Section 14 of the Constitution of the State of Alaska, and the Fourth Amendment of the Constitution of the United States against unreasonable searches when it comes to private property. (Indisc.) wants the Division of Forestry to charge in and control and suppress wildfire even if it is on private property, that is not the question here. He commented that Alaska is a huge state and there is not that much private property, even less when backing out urban from rural privately owned forested land. He noted that what is in question is the current prevention terminology in statute that can be easily abused by virtually any employee in the Division of Forestry to enter private property when there is no probable cause that a crime is being committed. Currently, a Division of Forestry employee is considered a peace officer under AS 41.15.950 and may climb over a rock and posted gate and walk down a person's driveway, where the homeowner clearly expressed their expectation of privacy, without probable cause that a crime is being committed to prevent, not just a wildfire, but any fire. Many Alaskans, like himself, currently have smoke rolling out the top of their chimneys as he presents his testimony. None of the people have a problem [rising to] probable cause, yet they know that Article 1, Section 22 indicates that the right of the people to privacy is recognized and shall not be infringed, he said. AS 41.15.040 could be cleaned up by a simple amendment on page 2, line 14, adding the word "wildland" between the words "suspected fire;" and on page 2, line 16, removing the word "preventing." The title of this section could be modernized by changing it to "AS 41.15.040, Authority of entry to control and suppress ... CHAIR CLAMAN advised Mr. Squryes that he had gone over his two minutes and asked that he conclude his remarks. MR. SQURYES said he wanted to address the situation of peace officers under AS 41.15.950 being applied to the employees of the Division of Forestry who are not trained as peace officers. 3:50:19 PM REPRESENTATIVE EASTMAN asked about his concerns with regard to peace officers in this bill. MR. SQURYES explained that AS 11.61.220 involves misconduct involving weapons in the fifth degree, whereby an Alaskan carrying a concealed firearm, even on his own private property, has a duty to immediately notify a peace officer that they are carrying a concealed firearm, and the peace officer has the right to secure the deadly weapon. He described that this procedure, wherein someone on the fire crew is not trained in performing, opens the pandora's box to the possibility of undesirable outcomes. In revising the statute, it is time for this issue to be addressed, he said. 3:51:32 PM CHAIR CLAMAN, after ascertaining that no one wished to testify, closed public testimony on HB 355. [HB 355 was held over.]