HB 355-FIRE;FOREST LAND; CRIMES;FIRE PREVENTION  1:05:22 PM CO-CHAIR TARR announced that the first 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." 1:06:22 PM REPRESENTATIVE DAVID GUTTENBERG, Alaska State Legislature, as prime sponsor, presented HB 355. He explained that HB 355 addresses fire safety, suppression, and education. The bill seeks to restructure the way fines are levied, called a bail, which is whether a person receives a ticket, or goes to court, or is pursued because of deliberately setting a fire that caused considerable damage. The bill also includes a component addressing fire safety, as well as clarifies the authority of fire prevention officers to enter private property to investigate fires. Currently, if it is post-fire and fire prevention officers need to investigate, they must receive the property owner's permission and without said permission, they need to obtain a warrant for access. 1:07:36 PM REPRESENTATIVE TUCK asked if a subpoena is required for access. REPRESENTATIVE GUTTENBERG replied that if a [wildland] fire goes through private property, fire prevention officers can access the property to suppress, control, and put out the fire. However, to further investigate after the fire, officers must have the property owner's permission or obtain a warrant if permission is denied. 1:09:10 PM REPRESENTATIVE RAUSCHER moved to adopt Amendment 1, labeled 30- LS1382\D.2, Radford, 3/1/18, which read: Page 2, lines 10 - 11: Delete "or a destructive agent" Insert "[OR A DESTRUCTIVE AGENT]" Page 2, line 12: Delete "at any time" Insert ", when responding to a wildland fire or  suspected fire, [AT ANY TIME]" Page 2, lines 14 - 15: Delete "or a destructive agent" Insert "[OR A DESTRUCTIVE AGENT]" CO-CHAIR JOSEPHSON objected for discussion purposes. 1:09:35 PM REPRESENTATIVE RAUSCHER explained Amendment 1 limits the times when forestry officials can enter private property by deleting the words "at any time" and inserting "when responding to a wildland fire or suspected fire," and deletes "or a destructive agent." He said the amendment preserves the property rights and the privacy of property owners. He acknowledged officials need to investigate nearby properties during a fire and immediately after, but [without the amendment] officials could enter private properties at a much later time. 1:11:35 PM REPRESENTATIVE JOSEPHSON questioned why Amendment 1 deletes and inserts "or a destructive agent." REPRESENTATIVE RAUSCHER said the definition of destructive agent includes bugs, which is not a valid reason to access one's private property at any time. 1:12:38 PM ANNE NELSON, Senior Assistant Attorney General, Natural Resources Section, Civil Division (Anchorage), Department of Law (DOL), stated she was also confused by whether the intent of the amendment was to remove "destructive agent". The committee took a brief at-ease. 1:14:18 PM DARRELL BREESE, Staff, Representative George Rauscher, Alaska State Legislature, said the definition of destructive agent is found in AS 41.15.170 as follows: destructive agent means an insect, pathogen or other environmental agent that causes damage to a forest resource MR. BREESE further explained that Division of Forestry regulation 41 AAC 9595 places the onus for addressing insect infestation wholly on the property owner with the division's approval or disapproval of the method the property owner is using. As written, the amendment would delete language from both HB 355 and from existing statute by the bracketed language. 1:15:40 PM CO-CHAIR TARR requested Mr. Chris Maisch to speak to why "destructive agent" is in current statute and whether removing that term would be a problem. 1:15:40 PM CHRIS MAISCH, State Forester, Director, Division of Forestry, Department of Natural Resources (DNR), stated that AS 41.15.020 gives the DNR commissioner the power to make regulations related to fires and destructive agents and that this definition [of a destructive agent] is used in numerous places in statute. For example, in an emergency the commissioner can declare a zone of infestation and then emergency regulations to address something such as a bark beetle outbreak. He advised that in its history the Division of Forestry has not needed to make use of this statutory authority, but it exists for that reason. 1:17:13 PM CO-CHAIR JOSEPHSON posited that the amendment would prevent a fire officer right of entry to forested land to address a destructive agent, and an officer would only have right of entry when responding to a wildland fire or a suspected fire. He surmised the amendment's goal of protecting the privacy of private property owners reaches across public lands. MR. MAISCH replied that his comments were narrowed to the "destructive agent" piece, but that the aforementioned would be a concern. He said the division has other authority to declare a zone of infestation to address an issue of insects or disease, although he would read the amendment narrowly as Co-Chair Josephson described when it refers to wildland fire or suspected fire and that there could be some potential conflicts between the two. CO-CHAIR JOSEPHSON stated he has some concerns about the expansiveness of this section under the bill and under current law. He said his understanding of criminal procedure is that a person could still file motion practice and say notwithstanding this statute or this bill, something should be suppressed because someone's rights weren't read to them or a warrant should have issued, although one would think that this might support the state's argument that a warrant wasn't always necessary. He said he is making the point that there could still be an assortment of motion practice in criminal court theoretically. 1:19:46 PM REPRESENTATIVE BIRCH observed the term destructive agent appears in multiple locations in the bill and the bill title relates generally to burning, negligent burning, and everything related to fire. He asked whether the division can quarantine property due to issues such as dead standing trees on public or private land, without consent of the property owner. MR. MAISCH responded he could not envision a unilateral case in which the division would enter property without first going through forest practices statutory authority involving the commissioner and a best interest finding to establish a zone of infestation, which could be insects, diseases, or other pathogens, and then enacting emergency regulations on how the division would intend to deal with that, which could mean treatments on private lands. There would be a more exhaustive process for the division to go through besides just making a unilateral decision that it would take action under this statute. This statute is really focused on the fire piece. REPRESENTATIVE BIRCH surmised this accommodation currently exists. MR. MAISCH answered correct. MR. BREESE pointed out that the section that would be amended by Amendment 1, AS 41.15.040, deals specifically with the right of entry to control and to suppress fires. So, if this section is amended, the Division of Forestry would still have a right to enter for any other reasons, such as insect infestation. The changes suggested by the amendment are to limit the entry when [the division] is controlling and suppressing fires. 1:22:49 PM REPRESENTATIVE PARISH expressed his concern about denying [state fire officers] access to land to prevent a fire, to investigate a negligent fire, or to investigate after a fire. He said Amendment 1 is overly restrictive and he cannot support it. REPRESENTATIVE DRUMMOND noted the state forester did not indicate a destructive agent has been an issue for the division. Furthermore, she said, if insects, diseases, or pathogens contribute to fire danger by killing trees, the destructive agent language must be part of the assessment in fire prevention by the division, and there is no reason to remove it. She said she therefore cannot support Amendment 1. REPRESENTATIVE JOSEPHSON stated he opposes Amendment 1. The law as written allows a fire officer to enter public and private land to prevent prospective fires because of destructive agents such as bug infestations, he said, and he doesn't have enough knowledge to say that that should be prohibited. He further cautioned against encumbering a fire official's ability to access and inspect public land. 1:26:19 PM REPRESENTATIVE TUCK asked whether a destructive agent could be something that may be administered to prevent insect infestation. He requested clarification on the intent of existing statute regarding destructive agent. MR. MAISCH responded that destructive agent is defined in statute and means insect pathogen or environmental agent that can cause damage to the forest resource. Whatever the cause, standing dead timber is a more receptive and dangerous fuel source to wildland fire than is a standing green forest. Destructive agent is rather broad, but in the context of forestry operations, it would primarily be for spruce bark beetle infestations. He reminded members that the spruce bark beetle infestation on the Kenai Peninsula was substantial and crossed public and private ownership. He advised that prevent, control, and suppress all have specific meanings in forestry. 1:28:43 PM REPRESENTATIVE TUCK surmised the purpose of having this language in this section is to allow the division to check whether a property owner is applying flammable agents and/or whether something needs to be applied to prevent the trees from drying out and becoming a fire hazard. MR. MAISCH answered the division would not be checking on what a property owner is applying. He explained that if a property owner has cut a lot of timber on his/her land and hasn't properly treated the slash or disposed of the material it becomes a breeding source for the insects and then the insects can spread onto adjoining private or public lands. Therefore, that would be the reason why forestry division staff would need access to a piece of property. 1:29:41 PM REPRESENTATIVE TUCK offered his understanding that there are regulations which require downed trees be treated with a proper destructive agent and the purpose of this is to be able to inspect whether the downed trees have been treated with the proper destructive agent. MR. MAISCH replied correct, it would be a control method. He explained there are numerous control methods for keeping an insect infestation or potential infestation under control. It is how the slash is treated - which could be chemical treatment or physical treatment such as bucking, burning, or burial. There are many ways to do that and those are addressed under the separate Alaska Forest Resources and Practices Act statute. 1:30:47 PM REPRESENTATIVE DRUMMOND said any organization authorized to prevent, control, or suppress a fire includes any one of the volunteer or paid fire departments in the state's communities. She noted the Anchorage fire department has been working for years to remove excess dry timber on "the hillside" in Anchorage because it is extremely difficult or impossible to get water to that area given the size of the roads. Therefore, she said, close attention must be paid to who would be prevented from getting to the source of a fire or potential source of a fire. 1:31:48 PM CO-CHAIR TARR held over HB 355 with Amendment 1 pending for further discussion.