HB 355-FIRE;FOREST LAND; CRIMES;FIRE PREVENTION  1:56:29 PM CO-CHAIR JOSEPHSON announced that the final order of business would be HOUSE BILL NO. 355, "An Act relating to the crime of criminally negligent burning; relating to protection of and fire management on forested land; relating to prohibited acts and penalties for prohibited acts on forested land; and providing for an effective date." 1:57:12 PM REPRESENTATIVE DAVID GUTTENBERG, Alaska State Legislature, sponsor of HB 355, paraphrased from the following sponsor statement [original punctuation provided]: Most of the current Division of Forestry fire prevention laws were enacted in 1961. HB 355 updates and modernizes the wildland fire prevention and enforcement statutes, with the ultimate goal of reducing the number of human caused fires in Alaska. This bill reduces risks to human life, loss of homes and structures, extensive property damage, and fire suppression costs. Current burning offenses are unclassified misdemeanors that require a mandatory court appearance and are punishable by a fine of between $100-$1,000 or 10 days to 6 months imprisonment. The bill replaces the current system with a tiered prevention and enforcement structure, similar to fish and game violations. Violations of regulations adopted under the bill that would be "bail schedule" offenses, allowing DOF prevention officers to issue citations for violations of these offenses. The bill also gives state fire prevention officers more flexibility in responding to burning violations and investigating wildland fires. "Knowing" violations of the bill provisions would be a class A misdemeanor, and resolution would require a mandatory court appearance. The bill also addresses enforcement gaps in the existing arson and criminally negligent burning statutes in AS 11.46, makes technical changes to clarify the right of state fire prevention officers to enter land to investigate wildland fire and establishes a misdemeanor offense of interfering with this right of access, and corrects potentially conflicting statutory provisions .. Over the last 15 years, the length of the wildland fire season and amount of acreage burned each year- especially in and near communities-has increased dramatically. The statutes and regulations that guide our prevention and management of wildland fire need to keep pace with these changes which is why I hope you will join me in supporting this bill. REPRESENTATIVE RAUSCHER asked how provisions in the bill would affect access to private land. REPRESENTATIVE GUTTENBERG deferred to legal counsel. 1:59:53 PM JOHN "CHRIS" MAISCH, State Forester and Director, Division of Forestry (division), Department of Natural Resources (DNR), expressed his support for HB 355, which would reduce human caused wildland fires and human risk. The bill modernizes existing statute in two areas: to allow firefighters to have a tiered approach to enforcement when needed, and to expand the education aspect of the division's fire prevention program. He explained Fire Prevention Officers are firstly firefighters and, secondly, wildland fire investigators who determine the cause of, and responsibility for, a wildland fire and assess fiscal recovery - when appropriate - through criminal and civil legal proceedings. Fire Prevention Officers do not carry guns and are trained to withdraw when necessary and seek assistance from Alaska State Troopers, Department of Public Safety. In response to Representative Rauscher, he said the division already has in statute the right to enter land for the suppression, control, and prevention of wildland fire, thus the bill seeks to clarify that the division also has the right to enter land for investigative purposes. For example, after a fire starts on private land, part of the control and suppression efforts are to enter the land to determine the point of origin, which may include following the path of the fire to other private land to investigate the source and cause. Mr. Maisch said HB 355 would clarify "that investigative piece is included in the terminology that we used in the previous statute." REPRESENTATIVE RAUSCHER expressed his understanding the bill would mean private property owners give up their right to give permission to the division to investigate [on their property]. MR. MAISCH stated AS 41.15.040 provides the division the right to enter land to prevent, suppress, or control a wildland fire or a destructive agent. Further, AS 41.15.950 allows police officers, and any DNR employees who are authorized by the commissioner, to request a warrant from an officer or court of competent jurisdiction. He restated in an immediate situation during a fire, the division has the right to enter private land; after control of a fire, the division must request a warrant to investigate. 2:05:09 PM REPRESENTATIVE RAUSCHER surmised after a fire is out, the bill allows access without seeking permission through a court order. MR. MAISCH clarified after the fire is controlled, the division does not have authority to enter land without permission, and if access were denied by the landowner, a search warrant would be necessary. In further response to Representative Rauscher, he said the foregoing statement applies to current statute and after the change proposed by HB 355. In response to Co-Chair Josephson, he said the clarification occurs in the bill [on page 2, line 14] in Section 3, with the addition of the word "investigating." REPRESENTATIVE GUTTENBERG gave an example of a situation in which an investigator was not present during a fire and was denied permission for access afterward: A warrant or a court order would be necessary. REPRESENTATIVE RAUSCHER asked who currently completes an investigation. MR. MAISCH said Division of Forestry employees are trained to investigate wildland fire origin and cause; for more complicated fires and those involving structures, investigators are aided by the office of the Alaska State Fire Marshal/Director, Division of Fire and Life Safety, Department of Public Safety. Fire investigators staff each of the division's area offices. REPRESENTATIVE RAUSCHER restated his question as to the purpose of proposed Section 3. MR. MAISCH further explained the purpose is to clarify "that investigating a fire's cause and origin is also covered under this statute." He deferred to the Department of Law (DOL). 2:10:03 PM ANNE NELSON, Senior Assistant Attorney General, Natural Resources Section, Civil Division(Anchorage), DOL, advised the proposed bill would not impact the constitutional law that applies to investigative searches and privacy protections, but clarifies the activities undertaken by the division in the investigation of a fire, or when responding to an active fire. REPRESENTATIVE RAUSCHER restated his question. MR. MAISCH further explained the investigation aspect - that is implied in the prevention language of the existing statute - is clarified. REPRESENTATIVE BIRCH expressed his understanding if a firefighter is fighting a fire on property and views items perceived to be the cause of the fire, the bill would allow those items to be used in court at a later date, which is reasonable. He opined the bill is reasonable and provides clarity. REPRESENTATIVE LINCOLN questioned whether the bill applies to fires that have been suppressed, or only when firefighters are actively fighting a fire. He asked, "but is this also the expectation that once a fire is suppressed, and you're going back to the scene to investigate further, at that point would you need to get the, a prior approval or a warrant ...?" 2:13:49 PM MR. MAISCH answered after a fire is out, when the division has permission from the landowner, it can proceed with an investigation; if not, it would seek a warrant to continue the investigation. Mr. Maisch continued to the most important aspect of the bill, which provides the division a three-tier enforcement tool to address violations of burn regulations. Currently, the process to deal with minor infractions is cumbersome, therefore, the division typically issues warnings except for the most egregious offenses. HB 355 provides the division with three tiers of responses: firstly, a ticket with a predetermined bail schedule for an infraction; secondly, a class A misdemeanor offense; thirdly, B and C felony offenses. In addition, the bill clarifies two types of firefighting techniques - more commonly referred to as burnouts or backburns - under the civil immunity statute. 2:16:41 PM CO-CHAIR JOSEPHSON asked whether a lawsuit has been brought against the division or against firefighters. MR. MAISCH recalled there was a lawsuit challenging discretionary immunity related to the Miller's Reach Fire [that burned near Houston, from 6/2/96 to 6/15/96]. He added, "So, since that time we've never had any specific challenge on the discretionary immunity ... unless we do something that's beyond our training or knowledge base, and then, of course, we can be held negligent, just like anybody else." Returning attention to the bill, he noted the bill also seeks to replace terminology that is no longer in use, and brings the statute into a modern format. REPRESENTATIVE GUTTENBERG assured the committee a property owner would not lose any constitutional rights; after a fire, an investigator still needs permission, or a court order, to access [private] property. He reviewed other aspects of HB 355. CO-CHAIR JOSEPHSON pointed out AS 41.15.150 - which imposes one to ten years of imprisonment in the case of malicious or wanton setting of a fire - is deleted by the bill. He asked whether this sort of misconduct is still addressed [within provisions of HB 355]. MR. MAISCH said yes; that type of offense would be raised to a felony or arson charge, or a misdemeanor, depending on the gravity of the offense. In further response to Co-Chair Josephson, he confirmed there is still a differentiation between accidental and wanton/malicious offenses. REPRESENTATIVE PARISH directed attention to the bill on page 2, beginning on line 30 and continuing to page 3, line 1, which read as follows [in part]: Sec. 41.15.060. Permits. The commissioner shall, by regulation, prescribe the conditions of and the manner for obtaining a permit for the setting of fires, use of burning devices, and other activities and uses of land that increase fire danger [.FAILURE TO OBTAIN THE REQUIRED PERMIT, OR VIOLATION OF A CONDITION OF THE PERMIT IS A MISDEMEANOR]. REPRESENTATIVE PARISH asked whether fires in a burn barrel are affected by the foregoing change. 2:21:44 PM MR. MAISCH said no; however, burn barrels and other outdoor fires are required to have a permit during fire season, and permittees must contact the division to verify it is a safe day for open burning in their area. CO-CHAIR JOSEPHSON noted failure to get a permit is currently a misdemeanor, and questioned how this is changed by the bill. MR. MAISCH stated currently, one who is burning without a permit would get a warning, except for a repeat offender, who may be issued a violation at the option of the prevention officer. After passage of HB 355, burning without a permit would be a minor offense listed on the bail schedule, and a repeat offender could be issued a citation. In further response to Co-Chair Josephson, he said a misdemeanor would be issued for a more serious offense. He deferred to Ms. Nelson. CO-CHAIR JOSEPHSON surmised HB 355 reduces a penalty because the offense is more manageable through a bail schedule. 2:25:08 PM MS. NELSON added violations of any of the provisions from Section 6 through new Section 41.15.140, are a class A misdemeanor or either a bail schedule offense - resolved by the payment of a fine - or a mandatory court appearance misdemeanor. For example, Section 6 would make burning without a permit a misdemeanor; however, depending on regulations and the proposed bail schedule, sentences could be resolved by the payment of bail and would not be criminal in nature. REPRESENTATIVE TALERICO suggested the intent of changing from violations to a noncriminal bail schedule is so prevention officers can respond appropriately to an offense; in fact, the maximum punishment for a class A misdemeanor can be 30 days in jail and a fine of $25,000. MS. NELSON agreed. She said the bail schedule in the bill has an upper limit of $5,000, and a violation approaching a criminal penalty would require a mandatory court appearance. Ms. Nelson characterized bail schedule offenses as the first tier of prevention and "light enforcement" in response to minor incidents. CO-CHAIR JOSEPHSON questioned whether the court system added violations of the fire code to the bail schedule. MS. NELSON advised the Alaska Supreme Court needs specific statutory legislative authority to establish the bail schedule found in Section 21, subsection (b), of the bill. 2:30:20 PM REPRESENTATIVE PARISH asked whether tundra would be considered forested land. MR. MAISCH said the bill defines forested land as any burnable organic material. In further response to Representative Parish, he said the definition of forested land is AS 41.15.170(3) which read: "forested land" includes all land on which grass, brush, timber, and other natural vegetative material grows; REPRESENTATIVE PARISH suggested that definition would include farmland, tideland beach grass and seaweed. MR. MAISCH said correct. 2:33:45 PM The committee took a brief at-ease. CO-CHAIR JOSEPHSON set the deadline for amendments to HB 355 at 5:00 p.m. on 3/1/18. [HB 355 was held over.]