Legislature(2013 - 2014)BELTZ 105 (TSBldg)
03/24/2014 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SJR25 | |
| HB218 | |
| HB47 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | SJR 25 | TELECONFERENCED | |
| + | HB 47 | TELECONFERENCED | |
| + | HB 218 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 47-INJUNCTION SECURITY: INDUSTRIAL OPERATION
2:48:12 PM
CHAIR COGHILL announced the consideration of HB 47. "An Act
requiring a party seeking a restraining order, preliminary
injunction, or order vacating or staying the operation of
certain permits affecting an industrial operation to give
security in the amount the court considers proper for costs
incurred and damages suffered if the industrial operation is
wrongfully enjoined or restrained." He said it was the first
hearing of the bill. [CSHB 47(JUD) was before the committee.]
2:48:31 PM
REPRESENTATIVE ERIC FEIGE, Alaska State Legislature, Juneau,
Alaska, introduced HB 47 speaking to the following sponsor
statement: [Original punctuations provided.]
Under current law the cost to bring a lawsuit against
a legally permitted project is in effect zero. There
is very little risk in bringing a suit. All the risk
is borne by the defendants. These actions do shutdown
projects at significant costs to working Alaskans,
businesses and the state treasury. HB 47 seeks to
remedy the situation by leveling the playing field.
HB 47 parallels the requirements of Alaska Civil Rule
65(c). As written, 65(c) states: "no restraining order
or preliminary injunction shall issue except upon the
giving of security by the applicant, in such sum as
the court deems proper, for the payment of such costs
and damages as may be incurred or suffered by any
party who is found to have been wrongfully enjoined or
restrained".
HB 47 closely mirrors the language of Alaska Civil
Rule 65(c) in order to clarify that the proposed
statute would not change the court rule. Judges
already have the ability to require security. In most
instances, they are not doing so. HB 47 simply
requests that part of the court's deliberation process
should include payment of wages and benefits for
employees & payments to contractors and sub-
contractors of the industrial operation that is being
shut down. The party asking the court to require
security must present evidence of the costs and
damages incurred. The court should then consider this
as one of the relevant factors when it determines a
bond/security amount. The amount of security is
totally within the hands of the court.
Language was added in the House Judiciary Committee to
further clarify that no such security is required of
the state and municipalities and to exclude permitting
programs in which DEC or DNR issues permits under a
state primacy permitting program that was developed
under federal law and approved by a federal agency.
2:53:15 PM
REPRESENTATIVE FEIGE concluded that this legislation has
implications for preserving the interests of companies engaged
in resource extraction, as well as for potential revenues that
could accrue to the state of Alaska if those projects are not
unduly delayed.
SENATOR WIELECHOWSKI directed attention to page 2, lines 8 - 15.
He asked why the exemptions are there.
REPRESENTATIVE FEIGE said it was a concern by the DEC
commissioner that the previous language could conflict with
federal law. From line 9 to line 15 are the exemptions for
permits attained under the Clean Water Act and under the Clean
Air Act, federal permitting programs the state administers.
SENATOR WIELECHOWSKI asked if omitting the exemptions risks the
ability to issue permits for the EPA on those Acts.
REPRESENTATIVE FEIGE said that's a matter of debate and an
effort to avoid court fights.
2:55:39 PM
LYNN KENT, Deputy Commissioner, Department of Environmental
Conservation (DEC), Anchorage, Alaska, explained that the two
provisions were added to make it clear that the state law isn't
more restrictive than federal law with regard to access to
courts. She added that DEC does not object to the language.
SENATOR WIELECHOWSKI inquired if the federal government allows
this kind of security or bond in the attempt to obtain an
injunction or a restraining order.
MR. KENT deferred the question to the Department of Law.
2:56:33 PM
RUTH HEESE, Assistant Attorney General, Civil Division,
Environmental Section, Department of Law, said the issue is that
there not be a concern by the federal approving agencies
regarding actions brought by the federal courts with respect to
actions brought on permits issued under primacy programs.
Exempting the Clean Air and Clean Water and Coal program permits
from HB 47 gives assurance to federal agencies that state
programs won't be subject to the security requirements.
REPRESENTATIVE FEIGE said federal Rule 65c and state Rule 65c
are essentially the same. They both put the responsibility for
setting the bond amount on the judge of the particular court.
SENATOR WIELECHOWSKI countered that the bill requires people to
post a bond if they are attempting to get a restraining order or
an injunction in a state action.
REPRESENTATIVE FEIGE said, "We're not requiring them to put it
up in a bond, we're asking the judge to consider.
SENATOR WIELECHOWSKI read page 1, line 9, "unless exempt, the
parties seeking restraining order, preliminary injunction, or
order vacating or staying the operation of certain permits
affecting an industrial operation shall give security." He asked
if the "shall" isn't mandatory.
REPRESENTATIVE FEIGE said it's whatever the court considers
proper.
SENATOR WIELECHOWSKI maintained that the courts will be
wondering how much they should require. He requested the sponsor
state the intent and asked whether the court could say zero.
REPRESENTATIVE FEIGE replied that the courts could require
nothing.
SENATOR WIELECHOWSKI asked for the circumstances where the
courts could say that.
REPRESENTATIVE FEIGE said he would leave it to the judge's
discretion.
2:59:34 PM
CHAIR COGHILL said it's a valid question. He held HB 47 for
further consideration and kept public testimony open.