Legislature(1993 - 1994)
04/21/1993 01:00 PM House JUD
| Audio | Topic |
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE
April 21, 1993
1:00 p.m.
MEMBERS PRESENT
Rep. Brian Porter, Chairman
Rep. Jeannette James, Vice-Chair
Rep. Pete Kott
Rep. Gail Phillips
Rep. Joe Green
Rep. Cliff Davidson
Rep. Jim Nordlund
OTHER MEMBERS PRESENT
Rep. Jerry Mackie
COMMITTEE CALENDAR
SB 178 "An Act relating to civil nuisance actions."
HOUSE JUDICIARY COMMITTEE SUBSTITUTE PASSED OUT
WITH NO RECOMMENDATION
SB 173 "An Act relating to health insurance for small
employers; and providing for an effective date."
NOT HEARD
WITNESS REGISTER
CHIP THOMA
Juneau, Alaska 99801
Position Statement: Opposed SB 178
DAVE MATTHEWS
Acting Manager
Alaska Forest Association
111 Stedman, Suite 200
Ketchikan, Alaska 99901
Phone: 225-6114
Position Statement: Supported SB 178
JAMES F. CLARK
Robertson, Monagle & Eastaugh
Attorneys at Law
P.O. Box 21211
Juneau, Alaska 99802
Phone: 586-3340
Position Statement: Supported SB 178
PETER EHRHARDT
35401 Spur Highway
Soldotna, Alaska 99669
Phone: 262-9164
Position Statement: Opposed SB 178
CHUCK ROBINSON
35401 Spur Highway
Soldotna, Alaska 99669
Phone: 262-9164
Position Statement: Opposed SB 178
MATTHEW DONOHOE
P.O. Box 2993
Sitka, Alaska 99835
Phone: 747-6467
Position Statement: Opposed SB 178
DON MULLER
P.O. Box 1042
Sitka, Alaska 99835
Phone: 747-6734
Position Statement: Opposed SB 178
CHUCK ACHBERGER
Alliance for Juneau's Future
P.O. Box 21143
Juneau, Alaska 99802
Phone: 586-2495
Position Statement: Supported SB 178
MARY FORBES
Kodiak Audubon Society
418 Mill Bay Road
Kodiak, Alaska 99615
Phone: 486-2685
Position Statement: Opposed SB 178
JAMIE PARSONS
Alaska State Chamber of Commerce
217 Second Street, #201
Juneau, Alaska 99801
Phone: 586-2323
Position Statement: Supported SB 178
VALORIE NELSON
P.O. Box 1356
Sitka, Alaska 99835
Phone: 747-5030
Position Statement: Opposed SB 178
RONN DICK
801 Lincoln Street
Sitka, Alaska 99835
Phone: 747-2505
Position Statement: Opposed SB 178
ROBERT ELLIS
P.O. Box 2966
Sitka, Alaska 99835
Phone: 747-8950
Position Statement: Opposed SB 178
NANCY LETHCOE
P.O. Box 1353
Valdez, Alaska 99686
Phone: 835-4300
Position Statement: Opposed SB 178
STEVE BORRELL
Alaska Miners Association
501 West Northern Lights Boulevard
Anchorage, Alaska 99503
Phone: 276-0347
Position Statement: Supported SB 178
JEFFREY TROUTT
Birch, Horton, Bittner & Cherot
One Sealaska Plaza, Suite 301
Juneau, Alaska 99801
Phone: 586-2890
Position Statement: Opposed SB 178
AVRUM GROSS
Gross & Burke
424 North Franklin Street
Juneau, Alaska 99801
Phone: 586-1786
Position Statement: Opposed SB 178
BOB LESHER
P.O. Box 3
Pelican, Alaska 99832
Phone: 735-2276
Position Statement: Opposed SB 178
DOUG MERTZ
319 Seward Street
Juneau, Alaska 99801
Phone: 586-4004
Position Statement: Opposed SB 178
SUSAN STURM
617 Katlian, #B-23
Sitka, Alaska 99835
Phone: 747-5990
Position Statement: Opposed SB 178
DAVID KATZ
Tongass Conservation Society
P.O. Box 3377
Ketchikan, Alaska 99901
Phone: 225-5827
Position Statement: Opposed SB 178
CAROLYN NICHOLS
305 Islander Drive
Sitka, Alaska 99835
Phone: 747-3146
Position Statement: Opposed SB 178
NATASHA CALVIN
P.O. Box 2966
Sitka, Alaska 99835
Phone: 747-8950
Position Statement: Opposed SB 178
VANCE SANDERS
424 North Franklin Street
Juneau, Alaska 99801
Phone: 586-1786
Position Statement: Opposed SB 178
PAULA TERREL
Thane Neighborhood Association
5025 Thane Road
Juneau, Alaska 99801
Phone: 586-3451
Position Statement: Opposed SB 178
LAURIE FERGUSON CRAIG
Alaskans for Juneau
P.O. Box 22428
Juneau, Alaska 99802
Phone: 463-5065
Position Statement: Opposed SB 178
RICHARD HOFFMAN
5025 Thane Road
Juneau, Alaska 99801
Phone: 586-3451
Position Statement: Opposed SB 178
ROBERT ENGELBRECHT
Temsco Helicopters
1650 Maplesden Way
Juneau, Alaska 99801
Phone: 789-9501
Position Statement: Discussed SB 178
RUSSELL HEATH
Alaska Environmental Lobby
P.O. Box 22151
Juneau, Alaska 99802
Phone: 463-3366
Position Statement: Opposed SB 178
ROBERT LOESCHER
Sealaska Corporation
One Sealaska Plaza
Juneau, Alaska 99801
Phone: 586-1512
Position Statement: Discussed SB 178
FLORIAN SEVER
1706 Edgecumbe Drive
Sitka, Alaska 99835
Phone: 747-8466
Position Statement: Opposed SB 178
PAM BRODIE
Sierra Club
241 East Fifth Avenue, #205
Anchorage, Alaska 99501
Phone: 276-4048
Position Statement: Opposed SB 178
GAYLE HORETSKI
Committee Counsel
House Judiciary Committee
Capitol Building, Room 120
Juneau, Alaska 99801-1182
Phone: 465-6841
Position Statement: Discussed SB 178
PREVIOUS ACTION
BILL: SB 178
SHORT TITLE: CIVIL NUISANCE ACTIONS
BILL VERSION: CSSB 178(JUD)AM (EFD FLD)
SPONSOR(S): JUDICIARY
TITLE: "An Act relating to civil nuisance actions; and
providing for an effective date."
JRN-DATE JRN-PG ACTION
03/31/93 1006 (S) READ THE FIRST TIME/REFERRAL(S)
03/31/93 1006 (S) JUDICIARY
04/05/93 (S) JUD AT 01:30 PM BELTZ ROOM 211
04/06/93 (S) JUD AT 01:30 PM BELTZ ROOM 211
04/12/93 (S) JUD AT 01:30 PM BELTZ ROOM 211
04/13/93 1334 (S) JUD RPT CS 3DP 1NR
SAME TITLE
04/13/93 1334 (S) ZERO FISCAL NOTE TO SB & CS
(LAW)
04/15/93 1406 (S) RULES 3CAL 1DNP 4/15/93
04/15/93 1410 (S) READ THE SECOND TIME
04/15/93 1410 (S) JUD CS ADOPTED UNAN CONSENT
04/15/93 1411 (S) ADVANCE TO 3RD RDG FAILED
Y11 N9
04/15/93 1411 (S) THIRD READING 4/16 CALENDAR
04/15/93 1420 (S) RETURN TO FINANCE FAILED Y9
N11
04/16/93 1446 (S) READ THE THIRD TIME CSSB
178(JUD)
04/16/93 1447 (S) RETURN TO JUDICIARY FAILED Y9
N11
04/16/93 1447 (S) PASSED Y11 N9
04/16/93 1448 (S) EFFECTIVE DATE FAILED Y11 N9
04/16/93 1448 (S) PHILLIPS NOTICE OF
RECONSIDERATION
04/18/93 1461 (S) RECON TAKEN UP-IN THIRD READING
04/18/93 1462 (S) HELD ON RECONSIDERATION TO
4/19/93
04/19/93 1547 (S) RECON TAKEN UP-IN THIRD READING
04/19/93 1548 (S) AM NO 1 NOT OFFERED
04/19/93 1548 (S) RETURN TO SECOND FOR AM 2
UNAN CONSENT
04/19/93 1548 (S) AM NO 2 MOVED BY TAYLOR
04/19/93 1549 (S) DIVIDE AM 2 INTO 3 PARTS
UNAN CONSENT
04/19/93 1549 (S) AM NO 2 PART A FLD Y- N20
04/19/93 1549 (S) AM NO 2 PART B ADPTD UNAN
CONSENT
04/19/93 1549 (S) AM NO 2 PART C ADPTD UNAN
CONSENT
04/19/93 1549 (S) AUTOMATICALLY IN THIRD READING
04/11/93 3550 (S) AM NO 3 NOT OFFERED
04/19/93 1550 (S) RETURN TO SECOND FOR AM 4
UNAN CONSENT
04/19/93 1550 (S) AM NO 4 ADOPTED UNAN
CONSENT
04/19/93 1550 (S) AUTOMATICALLY IN THIRD READING
04/19/93 1550 (S) RETURN TO SECOND FOR AM 5
FLD Y10 N10
04/19/93 1551 (S) RETURN TO SECOND FOR AM 6
UNAN CONSENT
04/19/93 1552 (S) AM NO 6 MOVED BY RIEGER
04/19/93 1552 (S) AM TO AM 6 ADOPTED UNAN
CONSENT
04/19/93 1552 (S) AM NO 6 AS AM ADOPTED Y11 N9
04/19/93 1552 (S) AUTOMATICALLY IN THIRD READING
04/19/93 1552 (S) PASSED ON RECONSIDERATION
Y11 N9
04/19/93 1552 (S) EFFECTIVE DATE FAILED Y11 N9
04/19/93 1555 (S) TRANSMITTED TO (H)
04/20/93 1346 (H) READ THE FIRST TIME/REFERRAL(S)
04/20/93 1346 (H) JUDICIARY, FINANCE
04/21/93 (H) JUD AT 01:00 PM CAPITOL 120
BILL: SB 173
SHORT TITLE: GROUP HEALTH INS. FOR SMALL EMPLOYERS
BILL VERSION: CSSB 173(FIN)
SPONSOR(S): SENATOR(S) RIEGER,Pearce,Salo,Kelly,Phillips;
REPRESENTATIVE(S)B.Davis,Nordlund,Ulmer,Brice
TITLE: "An Act relating to health insurance for small
employers; and providing for an effective date."
JRN-DATE JRN-PG ACTION
03/25/93 946 (S) READ THE FIRST TIME/REFERRAL(S)
03/25/93 946 (S) LABOR & COMMERCE, FINANCE
03/30/93 (S) L&C AT 01:30 PM FAHRENKAMP
ROOM 203
03/30/93 (S) MINUTE(L&C)
03/30/93 (S) MINUTE(L&C)
03/31/93 1003 (S) L&C RPT 4DP 1AM
03/31/93 1003 (S) ZERO FISCAL NOTE (DCED)
04/08/93 (S) FIN AT 09:00 AM SENATE FINANCE
ROOM 518
04/08/93 1269 (S) FIN RPT CS 5DP SAME TITLE
04/08/93 1269 (S) PREVIOUS ZERO FN APPLIES TO CS
04/12/93 1307 (S) RULES TO CALENDAR 4/12/93
04/12/93 1309 (S) READ THE SECOND TIME
04/12/93 1309 (S) FIN CS ADOPTED UNAN CONSENT
04/12/93 1310 (S) AM NO 1 FAILED Y5 N11 E3 A1
04/12/93 1311 (S) AM NO 2 FAILED Y5 N11 E3 A1
04/12/93 1311 (S) AM NO 3 FAILED Y6 N11 E3
04/12/93 1312 (S) AM NO 4 WITHDRAWN
04/12/93 1313 (S) AM NO 5 FAILED Y5 N11 E3 A1
04/12/93 1313 (S) FAILED TO ADVANCE TO 3RD RDG
Y11 N6 E3
04/12/93 1313 (S) THIRD READING 4/13 CALENDAR
04/13/93 1338 (S) READ THE THIRD TIME CSSB
173(FIN)
04/13/93 1338 (S) RET TO SECOND FOR AM 6 FAILED
Y10 N10
04/13/93 1339 (S) PASSED Y19 N1
04/13/93 1339 (S) EFFECTIVE DATE CLAUSE VOTE SAME
AS PSG
04/13/93 1339 (S) Adams NOTICE OF RECONSIDERATION
04/14/93 1393 (S) RECON TAKEN UP-IN THIRD READING
04/14/93 1394 (S) PASSED ON RECON Y19 N1
04/14/93 1394 (S) EFFECTIVE DATES VOTE SAME AS
PASSAGE
04/14/93 1396 (S) TRANSMITTED TO (H)
04/15/93 1249 (H) READ THE FIRST TIME/REFERRAL(S)
04/15/93 1250 (H) JUDICIARY, FINANCE
04/15/93 1272 (H) CROSS SPONSOR(S):B.DAVIS
04/16/93 1303 (H) CROSS SPONSOR(S):NORDLUND,ULMER
04/19/93 1341 (H) CROSS SPONSOR(S):BRICE
04/21/93 (H) JUD AT 01:00 PM CAPITOL 120
ACTION NARRATIVE
TAPE 93-66, SIDE A
Number 000
The House Judiciary Standing Committee meeting was called to
order at 1:45 p.m. on April 21, 1993. A quorum was not
present; therefore, a work session remained in progress
until a quorum was established.
SB 178 CIVIL NUISANCE ACTIONS
CHAIRMAN PORTER announced that the committee would take up
SB 178 first. He noted that the meeting was being
teleconferenced.
CHAIRMAN PORTER stated that the bill before the committee
was the Senate-passed version of SB 178, as amended on the
Senate floor. He suggested that those testifying on SB 178
consider the significant amendments which had been made to
the original bill. He mentioned that he had heard people
express concern that some permits were not issued after a
public hearing process, making it difficult for individuals
to be aware of problems related to the permits. He stated
that SB 178 had been amended on the Senate floor so that the
prohibition against civil actions would not apply to permits
or licenses issued without a public hearing.
(Rep. Nordlund arrived at 1:49 p.m., establishing a quorum
of the committee.)
Number 110
CHAIRMAN PORTER noted that nuisances involving nuclear waste
had been removed from SB 178's provisions as well. He said
that SB 178 pertained to specific occupations, structures
and acts for which a permit was issued. He cited an example
regarding a veterinary clinic. The clinic could not be sued
over a nuisance if someone simply did not like the fact that
the clinic was located where it was. If, however, the
clinic let its dogs out at night, and the dogs barked and
disturbed the clinic's neighbors, then a nuisance suit could
be filed, he said. He then turned to testimony from those
in Juneau and those at the teleconference sites. He asked
participants to limit their testimony to two minutes.
Number 142
CHIP THOMA testified in opposition to SB 178, as amended on
the Senate floor. He said that the bill originated because
of a lawsuit filed by a Mr. Larry Edwards against the Alaska
Pulp Corporation (APC). He asserted that the bill was
designed to protect the APC pulp mill in Sitka, even if the
mill violated its permit, which he said the mill had been
doing for the last two decades. He stated that, to his
knowledge, no other state imposed similar limitations on
civil actions. He commented that the bill was probably
unconstitutional because it denied due process to property
owners.
Number 160
MR. THOMA said that SB 178 constituted a "taking" of private
property rights, and might make the state liable for the
costs of injury to property caused by permitted activities.
He called the members' attention to a letter from Lloyd
Miller, an attorney representing many plaintiffs in the
Exxon Valdez case. He said that SB 178 used permits to
immunize polluters from liability, and expressed his opinion
that that should not occur. He commented that the U.S.
Supreme Court, and the Sixth and Ninth Circuit Courts of
Appeals had struck down legislation similar to SB 178.
Number 200
MR. THOMA cited a 1987 U.S. Supreme Court ruling which found
that a private nuisance claim against a paper mill was not
preempted by the fact that the mill operated under a federal
water pollution permit. He submitted to the committee a
memorandum from Mr. Jim Clark to Attorney General Charlie
Cole, dated March 24, 1993, as well as a recent article from
the Sitka Sentinel. He expressed his opinion that the
federal Environmental Protection Agency (EPA) would take a
"strong and significant interest" in SB 178.
(Rep. Davidson joined the meeting at 1:55 p.m.)
Number 214
DAVE MATTHEWS, representing the ALASKA FOREST ASSOCIATION
(AFA), noted that Mr. Jim Clark would be speaking on AFA's
behalf in support of SB 178.
Number 216
MR. CLARK stated that SB 178 did not provide a wholesale
exemption from nuisance lawsuits. What the bill did, he
said, was to redefine "nuisance" to outline what was and
what was not a reasonable use of property. He said SB 178
provided that, after a project went through the public
permitting process, a permit-holder would be immune from
nuisance suits stemming from actions the permit-holder was
allowed to take under the permit.
MR. CLARK commented that the legislature and the congress
passed laws which defined property rights, including
environmental restrictions which prevented people from using
their property in certain ways. The courts, he said, had
found that these types of regulations were reasonable
restrictions on private property owners and did not
constitute a "taking" by the government. Senate Bill 178,
he said, was the other side of the coin; it established that
it was reasonable for a permit-holder to do what his or her
permit allowed.
MR. CLARK said that for those who violated their permits,
nuisance suits could be filed. He stated that court cases
previously mentioned dealt with wholesale exemptions from
all nuisance suits. Senate Bill 178 did not accomplish
that, he argued. He addressed a concern that SB 178 would
cause the state, not the permit-holders, to be the target of
nuisance suits. He said that the only theory under which a
person could sue the state over a nuisance was "inverse
condemnation." Inverse condemnation suits that had been
brought by mining and timber interests claiming that
environmental regulations constituted a "taking" had
uniformly lost, he noted. He acknowledged that someone
might file an inverse condemnation action against the state,
but said that the threat of inverse condemnation suits had
never stopped the Alaska Legislature or the U.S. Congress
from passing environmental laws.
MR. CLARK asked the committee to consider three amendments
which he said would improve SB 178. He suggested that the
word "valid" be added on page 1, line 11, just before the
word "statute." On page 1, line 14, he suggested replacing
"decision" with "judgment." And on page 2, line 9, he
recommended deleting the word "real." He said that he had
spoken with officials from the Attorney General's office who
felt that these three amendments would improve SB 178.
(Rep. Phillips joined the meeting at 2:00 p.m.)
REP. KOTT asked Mr. Clark if he felt that due process
requirements were fulfilled during the public permitting
process.
MR. CLARK replied that he believed so. He called SB 178 a
"minimalist" provision. All that SB 178 did, he added, was
to say that governmental agencies, not the courts, would
decide what activities were deemed to be in the public's
interest.
Number 339
REP. KOTT asked Mr. Clark to address why he wished to amend
SB 178 so as to refer to a "valid" statute or regulation.
Number 343
MR. CLARK stated that the Attorney General's office proposed
that particular change. In his opinion, it did not change
the effect of the bill.
Number 350
REP. KOTT asked Mr. Clark if there were "invalid" statutes.
Number 353
MR. CLARK said that he agreed with Rep. Kott.
Number 356
REP. DAVIDSON took issue with Mr. Clark's contention that
changing a definition was "no big deal" from a legal
standpoint. He expressed his disagreement with Mr. Clark.
He asked Mr. Clark to explain why inverse condemnation cases
which had been filed on behalf of his clients had uniformly
lost.
Number 367
MR. CLARK responded that the theory of inverse condemnation
had not been "bought" by the courts. He said that if
someone chose to sue the state on the theory of inverse
condemnation, the suit would probably be a "loser," based on
the outcome of other inverse condemnation suits. He
asserted that such a case might be filed once, and then
likely would not happen again.
Number 384
REP. NORDLUND asked how a damaged party could collect if he
or she were damaged by an individual or a company that did
meet the requirements of a permit.
Number 396
MR. CLARK commented that it would be difficult to presume
damages from a permitted activity. He noted that in order
to get a clean air act permit in Alaska, a person would have
to show that primary (human health) and secondary
(vegetation and wildlife) ambient air standards would be
met. He said that safety margins had been built into those
standards. The standards were created to ensure that the
public would not be harmed. Therefore, he said, it would be
difficult to prove that harm resulted from a permitted
activity. For that reason, he added, SB 178 was justified.
Bringing a lawsuit after an activity had been permitted was
"harassment for harassment's sake," he claimed.
Number 423
REP. NORDLUND commented that it was not hard to imagine a
situation in which a person's property truly was damaged by
a permitted activity, with the result being an inability to
sell the property at a fair price. Someone should be made
to pay for such damages, he said, whether it be the permit-
holder or the state.
Number 432
MR. CLARK argued that people who were burdened with
environmental regulations also had their property value
diminished. The courts had decided that that did not give
rise to just compensation, he said. The philosophy behind
SB 178 was that if it was reasonable for government to put
environmental restrictions on private property without
compensation, then it was also reasonable to protect permit-
holders to the extent that they were complying with their
permits. He stated that SB 178 would encourage permit-
holders to comply with the conditions of their permits.
(Chairman Porter acknowledged the arrival of Rep. Jerry
Mackie.)
REP. GREEN asked Mr. Clark if the Attorney General supported
SB 178.
Number 472
MR. CLARK responded that the Attorney General was reserving
judgment on the bill, but felt that the three proposed
amendments would improve SB 178.
Number 476
REP. GREEN mentioned that there had apparently been some
differences of opinion between Mr. Clark and the Attorney
General. He asked Mr. Clark to elaborate on those
differences.
Number 481
MR. CLARK replied that the Attorney General was concerned
about several court cases interpreting laws similar to SB
178 in other jurisdictions. However, he said that those
cases involved situations in which wholesale exemptions from
nuisance suits were provided. But, he said, SB 178 would
only apply to situations in which a public process had been
followed, a permit had been issued, and the conditions of
the permit were met. He expressed his opinion that SB 178
would be found constitutional, as it was very narrow in
scope.
Number 509
PETER EHRHARDT testified via teleconference from
Kenai/Soldotna. He said that he was an attorney
representing Mr. Larry Edwards in his nuisance case against
the APC mill. He said that he also represented a local
Native corporation which was very concerned about SB 178.
He expressed his opinion that Mr. Clark was arguing that the
public hearing process could be substituted for
constitutional protections, because "what's good for the
gander is good for the goose." He said that Mr. Clark's
argument was fatally flawed.
MR. EHRHARDT commented that the level of hearings that
occurred before the state decided to take the property
rights of the APC mill was immeasurably greater than the
level of hearings that occurred before the state decided to
take the property rights of someone whose property was
damaged by the nuisance created by the pulp mill or another
entity.
MR. EHRHARDT mentioned that the legislature's Citizen's
Oversight Council on Oil and Other Hazardous Substances
found that the public hearing process was fatally flawed:
the public had insufficient input and impact on regulations
and on decisions made by agencies. In that light, he said,
Mr. Clark's contention that the public hearing process could
serve as a substitute for constitutional protections was
simply wrong.
MR. EHRHARDT mentioned that the bill, as written, would not
apply to nuclear waste. He said that he did not understand
how nuclear waste was any worse than substances such as
PCBs, benzene, or dioxin.
Number 572
CHUCK ROBINSON, an attorney who worked for a law firm which
represented Larry Edwards in his suit against the APC mill,
testified via teleconference from Kenai/Soldotna. He said
that case law established that it was unconstitutional for a
state to take away an individual's ability to bring a
private nuisance claim, particularly for a non-public
purpose. He claimed that SB 178 was unconstitutional. In
response to Mr. Clark's "tit for tat" argument, he said that
there was a big difference between placing restrictions on
the use of property that the public believed might be
harmful and the pursuit of a legal claim because someone's
property was harmed.
MR. ROBINSON noted that the courts, for generations, had
held that as long as restrictions on the use of property
were health, safety, and welfare measures intended to
protect the public, and did not amount to a total
confiscation of the property, then they were reasonable
restrictions on property use. He expressed an opinion that
there was a big difference between that and denying an
individual whose property had been harmed the right to bring
a claim for recompense. He said that if SB 178 merely
changed the definition of "nuisance," then the legislation
should be restricted to alter the definitions section of the
law, AS 09.45.255.
Number 630
MATTHEW DONOHOE testified via teleconference from Sitka. He
said that SB 178 would limit his rights to redress, through
the courts, any damage occurring to his property. He said
that the bill would restrict his rights to due process. He
commented that SB 178 assumed that all permit practices were
fair and correctly carried out. He submitted that that was
often untrue. Citizens were often damaged by permitted
activities, he said, and SB 178 would restrict citizens'
ability to recover.
Number 640
MR. DONOHOE claimed that SB 178 was a direct constitutional
challenge to a property owner's due process rights. He
noted that the City of Sitka had not taken a position on the
bill in any public meeting. He said that he was not against
the Sitka pulp mill, but wanted to protect his rights as a
citizen and his property.
Number 670
DON MULLER testified via teleconference from Sitka. He said
that he had been a business person in Sitka for 17 years;
before that, he worked as a chemist for the APC mill. He
stated that SB 178 was a very clever and cunning bill. He
noted that in a democracy, the rights of an individual were
supposed to be as important, or more important, than the
rights of a single industry, particularly an industry that
had a long history of violating laws and regulations.
MR. MULLER said that SB 178 was obviously drafted because
the APC mill did not like a particular right of individuals.
He said that the mill believed that its rights outweighed
the rights of individuals or the community. He urged the
committee to vote against SB 178 in the interest of
democracy and the rights of citizens.
Number 689
CHUCK ACHBERGER, DIRECTOR OF THE ALLIANCE FOR JUNEAU'S
FUTURE, said that his organization was founded four years
ago to go through the "fairly simple and straightforward"
process of opening the Alaska-Juneau (A-J) gold mine in
Juneau. He discussed the lengthy, arduous, and expensive
public process that had occurred over the last four years.
He said that there should be a point at which legal
challenges stopped. He noted that oftentimes legal recourse
led to harassment. He mentioned a belief of some people
that state courts had been "bought off." He expressed his
organization's support for SB 178.
Number 716
REP. DAVIDSON asked Mr. Achberger to expand on his statement
that Alaska's courts had been "bought off."
Number 722
MR. ACHBERGER replied that his comment pertained not to his
own opinion, but to one expressed on the editorial page of
the Juneau Empire.
Number 727
REP. KOTT asked Mr. Achberger to address how important the
public process and the public comment period were in the A-J
permitting process.
Number 734
MR. ACHBERGER replied that he felt that the public process
was extremely important. He said that the public process
produced a compromise in an effort to build a better permit
and a better project. No one was perfectly happy with what
the process produced, he said.
Number 753
MARY FORBES, representing the KODIAK AUDUBON SOCIETY,
testified via teleconference from Kodiak in opposition to
SB 178, as amended on the Senate floor. She expressed
concerns about the constitutionality of the bill, and
whether it would constitute a "taking" by the state, thereby
costing the state a great deal of money. She mentioned the
Citizens' Oversight Council's finding that the permitting
process was questionable.
Number 765
JAMIE PARSONS, representing the ALASKA STATE CHAMBER OF
COMMERCE, testified in support of SB 178. He said that the
bill would go a long way toward reducing frivolous lawsuits
and unnecessary litigation and create a more positive
business development climate in the state.
Number 782
VALORIE NELSON testified via teleconference from Sitka in
opposition to SB 178. She said that she had a lawsuit
pending which could be invalidated by the retroactivity
clause of the bill. She likened the retroactivity clause to
changing the rules in the middle of a game. She said that
her lawsuit had been filed based on existing statutes and
ordinances, and that she had spent a great deal of money
fighting the expansion of a nonconforming use which had been
allowed by government officials in Sitka. She said that SB
178 took away individuals' rights to protect their property.
Number 792
RONN DICK testified via teleconference from Sitka in
opposition to SB 178. He stated that the bill violated
underlying principles of justice. He said that because the
bill exempted polluters from any liability as long as they
had the government's permission, it was absolutely essential
that the integrity of the permitting process be untainted.
That, he asserted, was not the case. The process often
involved collusion between the permitting agency and the
polluter, he said, and lacked the necessary integrity.
Number 800
MR. DICK alleged that the Department of Environmental
Conservation (DEC) and the APC mill had held numerous
private meetings to agree upon acceptable pollution
standards. Generally, he said, the mill informed the DEC of
its current discharge levels for certain pollutants; the DEC
then wrote standards so that those levels of discharge could
be maintained. He commented that the DEC often failed to
enforce its standards and regulations. He said that the EPA
was considering suing the DEC over its extreme leniency
toward the APC mill. He spoke against SB 178, saying that
it would prevent the public from seeking legal redress, when
the state and industry were already in collusion to
circumvent laws and regulations.
TAPE 93-66, SIDE B
Number 000
ROBERT ELLIS testified via teleconference from Sitka in
opposition to SB 178. He said that the bill represented a
further erosion of the public's right to protect itself from
the actions of government and industry. He questioned why
nuclear waste was excluded from SB 178's provisions, while
other toxic substances were included. He suggested that the
committee add to the exclusions any toxic elements or
chemicals. He expressed his opinion that public hearings
were often a facade designed to make the public's anger go
away, but resulting in no significant changes to pre-
arranged deals between government and industry.
MR. ELLIS stated that he did not understand why the
legislature had omitted health -- physical destruction from
chemicals, including acids and fallout -- from the bill.
Also, he asked why the bill would only protect citizens of a
municipality. He said that SB 178 emphasized the importance
of public participation in hearings, but penalized those
people who had not attended past hearings. He stated that
he opposed the retroactivity clause of the bill.
Number 050
NANCY LETHCOE, PRESIDENT OF THE ALASKA WILDERNESS RECREATION
AND TOURISM ASSOCIATION (AWRTA), testified via
teleconference from Valdez. She said that AWRTA's members
were concerned about SB 178, and asked the committee members
not to pass it out of committee. She said that there were
two problems in the permitting process. First of all,
permits were often issued using data provided by industry.
Because of the state's declining revenues, independent
checking of that data would occur less and less often. She
expressed concern that more permits would be issued, under
the pressure of economic constraints, that might lead to
damage of private property.
Number 075
MS. LETHCOE said that her second concern regarding the
permit process was that it was very unequal. Industry
lawyers met privately with regulators during the permitting
process, she said. She indicated that she did not object to
that practice, but said that citizens whose property might
be affected did not have the scientific expertise, nor the
lawyers, time, funding, or access to regulators which
industry enjoyed during the permitting process. It was only
after permits were issued, when damage was seen, that the
public recognized a problem with the permitted activity.
The DEC often lacked funds to monitor compliance with
permits. The public's only recourse, she said, was through
the courts, and SB 178 would deny that recourse.
A technical problem with the teleconference network
prevented Ms. Lethcoe from continuing with her testimony.
Number 126
STEVEN BORRELL, EXECUTIVE DIRECTOR OF THE ALASKA MINERS
ASSOCIATION, testified in support of SB 178. He said that
if an individual or company was conducting its business
within the law, there should be nothing in statute
encouraging third parties to file nuisance lawsuits against
the activity. He said that SB 178 would remove one
incentive for groups and individuals to file nuisance
lawsuits. He predicted that the bill would decrease the
number of suits which were filed merely to harass and stall
projects. Fewer nuisance lawsuits would mean that
individual miners and mining companies would have one less
"artificial uncertainty" to deal with when trying to develop
a project. He commented that passage of SB 178 would
indicate to the international mining industry that Alaska
was a good place to do business.
REP. DAVIDSON asked Mr. Borrell how he would characterize
the current definition of "nuisance" in the Alaska statutes.
Number 160
MR. BORRELL responded that the current definition was
broader than that contained in SB 178. He said that the
bill would put reasonable restrictions on the definition.
He noted that currently, even if a company had a permit, a
person could file a nuisance suit merely because he or she
did not enjoy seeing a particular item. He said that filing
a suit over a "visual impairment" was simply a way in which
an individual could harass a project.
MR. BORRELL stated that permit requirements in Alaska were
so considerable now that the international mining industry
was looking to develop projects outside of the United
States. Passage of SB 178 would help to encourage mining
development in Alaska, he said.
Number 196
REP. DAVIDSON asked Mr. Borrell if he felt that the state's
current definition of "nuisance" was too broad.
MR. BORRELL replied that Rep. Davidson was correct.
Number 203
JEFFREY TROUTT, an ATTORNEY with the law firm of BIRCH,
HORTON, BITTNER & CHEROT in Juneau, testified on his own
behalf against SB 178. He stated that he was a conservative
Republican and strongly supported business and economic
development. He said that he liked the idea of statutorily
defining "nuisance." He commented that by increasing the
standard to "substantial and unreasonable" harm, the number
of frivolous lawsuits would probably decrease.
MR. TROUTT indicated that he did not support SB 178's
shifting of the economic burden for pollution or other types
of nuisances off of the person who caused the nuisance and
onto the person who was affected by the nuisance. He said
that he had done some preliminary legal research and found
that only nine nuisance cases had been decided and published
in the Alaska Digest -- only two since statehood. He
acknowledged that he did not have any statistics for cases
filed in District or Superior Court. That, he said, led him
to believe that nuisance lawsuits were not much of a
nuisance at all.
MR. TROUTT expressed his opinion that trying to eliminate
frivolous lawsuits by eliminating all nuisance lawsuits
under certain circumstances was equivalent to trying to kill
a mouse with a cruise missile. He stated that nuisance
lawsuits existed in order to protect individuals' private
property interests. When used legitimately, he continued,
they encouraged the reduction of pollution.
MR. TROUTT noted that the real issue in SB 178 was who would
pay for the cost of reducing or eliminating pollution. In
his conservative viewpoint, he said that the person who
caused the nuisance ought to be the one who paid for it.
Number 280
AVRUM GROSS, FORMER ATTORNEY GENERAL, said that he was an
attorney in private practice with the law firm of GROSS AND
BURKE. He added that he was testifying strictly on his own
behalf against SB 178. He noted that there was a great deal
of misinformation surrounding the bill. He commented that
SB 178 was introduced in response to one particular lawsuit
against a company. He expressed his opinion that SB 178 had
nothing to do with what were referred to as "nuisance" or
"frivolous" lawsuits. Those, he said, were filed for
harassment purposes and were already prohibited through a
number of different means.
MR. GROSS claimed that the bill pertained to lawsuits to
abate nuisances. He noted that the bill defined "nuisance"
as an unreasonable and substantial interference with the
property rights of another individual or entity. He said
that if a person walked on, or built a house across a
property line onto the neighbor's property, that would not
be a nuisance, but a trespass. However, if a person
interfered with the same property by unreasonably fouling
the air above the property, or by spoiling the neighbor's
water supply, or created such loud noises that it was
literally impossible for the neighbors to live on their own
property, then that would constitute a nuisance, he said.
MR. GROSS said that, to his knowledge, in every state all
property owners had the right to protect their property by
filing a lawsuit to abate a nuisance. No state had ever
allowed the creator of a nuisance to defend his or her
conduct by showing a permit, or proving that his or her
conduct was lawful. He mentioned a statute regarding
permits for diverting and polluting anadromous fish streams.
Those permits, he said, had nothing to do with whether or
not the activity created a nuisance on adjoining land.
MR. GROSS noted that permits also had nothing to do with
actual damages created, as they were based on studies and
assumptions. If those studies and assumptions were later
proven incorrect, he asked, should a damaged private
property owner be barred from suing the creator of a
nuisance? He expressed his opinion that SB 178 attempted to
get rid of an existing lawsuit by authorizing private
property owners to commit nuisances. He said that the bill
was not a development bill. He commented that SB 178 could
hurt businesses just as much as individual private
landowners. He called SB 178 an "anti-property rights
bill." He said that the bill authorized taking private
property rights away from people by the issuance of
government permits.
MR. GROSS said that until now the government could only take
private property for public purposes and by compensating the
owner. Senate Bill 178 would authorize private parties to
"take" private property belonging to others, without any
compensation to the landowner, to enhance their own property
at the expense of another property owner. He said that if
SB 178 was enacted, the courts likely would find the state
liable. He stated that no one had investigated the
magnitude of that liability. He predicted that if the state
were issuing permits, and would be liable for any nuisance
created by permitted activities, the permit process would
grind to a halt.
CHAIRMAN PORTER asked Mr. Gross if he was aware of
amendments made to SB 178 on the Senate floor.
MR. GROSS replied that, in his opinion, the Senate's
amendments were of absolutely no significance. He commented
that a nuisance caused by nuclear waste was no different
than any other type of nuisance. He noted that, regardless
of whether or not public hearings were held, the issuance of
a permit often had nothing to do with the impact of the
permitted activity on neighboring property.
Number 486
REP. DAVIDSON commented that SB 178 seemed to create private
property out of public permits, and to allow people to hide
behind the permit process. Also, he questioned why the
court system had not submitted a fiscal note, as it seemed
that SB 178 would result in a significant fiscal impact on
the state.
Number 505
MR. GROSS noted that SB 178 would not just immunize holders
of state-issued permits, but would also immunize holders of
permits issued by the federal government. He said that, if
enacted, the bill could prove very expensive for the state.
He stated that, under SB 178, a permit-holder could do
anything that he or she wanted, and would be immune from
litigation.
MR. GROSS commented that permits were often property rights,
depending on the nature of the permit and how it could be
revoked. The difference between permits generally and
permits under the provisions of SB 178, he said, was that
permits generally authorized someone to do a specific act.
They did not say whether or not that act would create a
nuisance to someone else, he noted. He used as an example a
permit to burn in a national forest. A permit-holder could
burn to his or her heart's content, he said, as long as he
or she did not burn down the forest. But, if the burning
was occurring adjacent to a fishing lodge, was going on day
and night, and the smoke was going in the windows of the
lodge, then the lodge owner could protest. Under SB 178, he
said, unlike every other state in the union, the lodge owner
would have no right to protest the burning.
Number 532
REP. DAVIDSON asked Mr. Gross to address the fiscal impact
on the state of SB 178.
Number 535
MR. GROSS replied that SB 178 would result in much more
extensive permit procedures. He said that under SB 178, no
state agency in its right mind would issue a permit which
exposed the state to liability for all conceivable nuisances
which could result from the permit, without exhaustive
hearings. He noted that it already took a great deal of
time to obtain a permit. He urged the committee to not turn
the entire civil justice system on its head in order to
address one perceived problem in Sitka.
CHAIRMAN PORTER announced that the teleconference network
had been reconnected. He noted that when the line was
disconnected, Ms. Nancy Lethcoe was in the middle of her
testimony. He invited her to repeat her remarks in their
entirety.
MS. LETHCOE summarized her earlier remarks to the committee,
and concluded by saying that her organization felt that SB
178 was a very bad bill. Polluters should be responsible
for their own pollution, she added, not those who were
impacted by that pollution. She thanked the Chairman for
allowing her to testify again.
Number 615
BOB LESHER, representing seven homeowners on Lisianski Inlet
near Pelican, some of whom were entering the tourism
business, testified in opposition to SB 178. He said that
he viewed SB 178 as a threat to his right to protect his
property and his lifestyle. He said that he particularly
opposed the bill's section 1, subsections (b) and (c), and
section 2. He commented that many activities which were not
illegal could still cause harm to an individual's property
rights. He cited the legal discharge of firearms on state-
owned tidelands on a frequent basis as an example.
MR. LESHER expressed his opinion that SB 178 opened the door
to abuse. He noted that many licenses, permits, and orders
were issued with brief, limited, or discretionary hearings.
He offered as examples DEC's solid waste disposal permits
and the U.S. Army Corps of Engineers' permits to discharge
dredged or fill materials into U.S. waters. He said that he
did not believe that a brief hearing of a few days or less
deserved the privilege of denying property owners the right
to ask for abatement of an offensive activity.
MR. LESHER noted that he and those he represented lived
outside of a local government unit. He questioned the
constitutionality of SB 178, as it did not provide equal
protection to those residing outside of municipal government
boundaries. He stated his objections to the tightening of
the definition of "nuisance." He asked why the legislature
was considering reducing the property rights of individuals.
He commented that it was obvious that SB 178 was designed to
prevent civil suits from stopping or delaying industry
projects that had gone through a permitting process.
MR. LESHER commented that SB 178 did too much harm to
individual property rights. He offered several alternatives
to the bill's approach. He noted that a project which had
received five days of public hearings could be protected
from civil actions. He said that such an approach would
more adequately protect private property rights and projects
which had received sufficient public attention. He stated
that SB 178, if enacted, could cost the state a great deal
of money, as private property owners might sue the state for
not providing equal protection and for depriving an
individual of property rights without just compensation.
Number 712
DOUG MERTZ noted that he had submitted written testimony to
the committee, and added that former Attorney General Gross
had made many points with which he agreed. He said that
SB 178 was a bad bill because it would cut off the rights of
property owners to protect their own property. He commented
that that would be true for all property owners:
residential, commercial, industrial, public, charitable,
etc. He stated that the permitting or regulation writing
process could not be substituted for the right of an
individual to go to court to protect her or his own private
property rights.
MR. MERTZ noted that regulations and permits were written in
general terms to protect general public interests. He added
that they were not written to provide protection for all
types of property in all types of circumstances. He
commented that many permits were issued without the benefit
of a public hearing process. When public hearings were
held, he said, sometimes individuals could not participate,
due to the location of the hearing, or due to illness, or
because they had not read the public notices in the
newspaper in order to learn that a public hearing was being
held in the first place. Additionally, he said, some people
purchased property after a permit was issued, but before
offensive activities commenced. He said that SB 178 would
cut off these individuals' rights to protect their property.
MR. MERTZ commented that SB 178 embodied both bad public
policy and bad law. The bill would subject the state to
damages for takings, he noted. He mentioned that Alaska's
constitutional condemnation provisions, unlike most other
states', required compensation not only for "takings" of
property, but also for damages to private property.
TAPE 93-67, SIDE A
Number 000
MR. MERTZ expressed his opinion that it was clear that if
the state cut off the right of a property owner to protect
his or her own property from damage, the state would be
liable for a "taking." He noted that SB 178 was probably
also unconstitutional because it would require that public
funds be spent to compensate for a "taking" made for a
private purpose. The differentiation between property in
residential areas and non-residential areas also presented
constitutional problems, he said. He concluded by saying
that SB 178 was a bad law that would buy the state lawsuits,
result in massive costs to the state, and be detrimental to
virtually all private property owners in the state.
Number 039
CHAIRMAN PORTER announced that the committee would not hold
its hearing on SB 173, GROUP HEALTH INSURANCE FOR SMALL
EMPLOYERS, today due to time constraints. He said that
SB 173 would be rescheduled to the following Friday.
Number 057
SUSAN STURM testified via teleconference from Sitka in
opposition to SB 178, as it would prevent individuals from
exercising their constitutional rights. She added that the
bill would take away a citizen's right to due process. What
was a nuisance to some was not a nuisance to others, she
stated. She objected to the lack of information available
to the public on SB 178. She commented that any testimony
purporting to represent the views of the City of Sitka was
invalid, as the city assembly had not discussed the bill,
nor had any public hearings been held on the issue. She
mentioned that she had taught her children that if they made
a mess, they cleaned it up.
CHAIRMAN PORTER responded to Ms. Sturm's comment that there
had been no public hearings on the bill by saying that a
public hearing was currently in progress.
Number 090
DAVID KATZ, representing the TONGASS CONSERVATION SOCIETY,
testified via teleconference from Ketchikan in opposition to
SB 178. He expressed his opinion that the ability to file
suit to abate a pollution nuisance was a very important part
of the total body of regulation and law that inhibited
pollution. He noted that he knew of no other state that
intended to effectively eliminate the ability of a property
owner to defend her or his property against nuisances.
MR. KATZ stated that few nuisance suits were ever filed. He
mentioned earlier testimony which asserted that only two
such suits had been filed since statehood. He commented
that SB 178 did not solve a problem; rather, it created one.
He said that SB 178 would encourage people to pollute. He
likened the tool of suits to abate nuisances to a precision
tool like a scalpel. That tool would cut out specific acts
of pollution, he said. Senate Bill 178 would eliminate that
"scalpel," he said, requiring that it be replaced with some
other, much blunter instrument. He said that property
owners would not sit back and watch their property diminish
in value. He predicted that removing the tool of suits to
abate nuisances would result in more regulations and
statutes. He echoed the comments of former Attorney General
Gross.
Number 149
CAROLYN NICHOLS testified via teleconference from Sitka in
opposition to SB 178. She stated that, over the years, many
people had tried, unsuccessfully, to curtail the pollution
emitted by the pulp mill in Sitka. She expressed her
opinion that the permitting process for that mill had
obviously not worked. She said that passage of SB 178 would
force private property owners to sue the state for damage to
their property. She questioned whether the state wanted to
be liable for the pollution of businesses. She noted that
SB 178 addressed an issue far broader than Mr. Larry
Edwards' lawsuit against the Sitka pulp mill, which she said
the bill was obviously introduced to quash.
MS. NICHOLS commented that SB 178 opened the door for
polluters throughout the state to operate without risk. How
could the state go after a polluter, she asked, in the event
that the state was successfully sued by a private property
owner over a nuisance created by a permitted polluter? She
stated that SB 178 was unfair to the state and to the
citizens of the state. She said that, as a fisherman, she
felt very threatened by the bill, because the health of the
state's fisheries depended upon clean water. She added
that, to date, the City of Sitka had held no public meetings
on SB 178; therefore, there was no publicly agreed upon
position on the bill.
Number 191
NATASHA CALVIN testified via teleconference from Sitka in
strong opposition to SB 178. She stated that the bill would
take away her rights as a citizen. She expressed doubt that
the permitting process and the DEC would adequately protect
the public's health and well-being. She noted that court
orders and judgments did not include a public process or
public notice. She said that she agreed entirely with
former Attorney General Gross.
Number 227
VANCE SANDERS, an attorney in private practice in Juneau,
testified against SB 178 as amended by the Senate. He cited
two recent U.S. Supreme Court cases which were relevant to
the bill. He explained that in Lucas v. South Carolina
Coastal Council, the Supreme Court found that the state of
South Carolina had deprived a property owner of his rights
and was required to compensate the owner for a "taking." He
cited another U.S. Supreme Court case pertaining to the City
of Escondido, California's attempts to legislate mobile home
park rates. He called the committee's attention to a 1982
New York case, in which the U.S. Supreme Court held that a
property owner could prevent a cable company from wiring a
building for cable.
Number 305
MR. SANDERS expressed his opinion that the U.S. Supreme
Court could find SB 178 to be unconstitutional, applying
principles similar to those applied in the aforementioned
cases. He added his prediction that the U.S. Supreme Court
would find that the state was liable for diminished property
value and rights resulting from nuisances. He recommended
that the Attorney General examine the cases which he had
just brought to the committee's attention. He said that he
believed that SB 178 would result in fiscal liability to the
state.
Number 331
PAULA TERREL, representing the THANE NEIGHBORHOOD
ASSOCIATION, said that her neighborhood would experience the
greatest impact from the reopening of the A-J mine. She
said that she had been actively involved in the permitting
process for the A-J mine. She said that her neighborhood
was zoned as residential, and that the A-J mine had gone
through the public permitting process. She noted that a
permit did not guarantee that a project would not have
negative impacts on surrounding property owners. She
questioned what would happen to private property owners in
the event that the A-J mine received a permit, but the
project still resulted in polluted wells and excessive
noise. She predicted that property values would drop
dramatically in that situation.
MS. TERREL stated that governmental agencies did not protect
individual property owners; rather, they protected the
public's interests. She said that if SB 178 passed,
homeowners like herself who were impacted by polluted wells
and/or excessive noise would have no place to turn, except
for the state. She said that SB 178 took away the rights of
private property owners.
Number 419
REP. JAMES indicated her understanding that SB 178 only
applied to activities which were permitted. It did not, in
her understanding, cover activities which were violations of
permits.
Number 446
MS. TERREL noted that if a permit allowed the A-J mine to
produce a certain amount of noise, and that amount was such
that no one wanted to buy her property, or she was unable to
sleep at night, then she would have no recourse.
REP. JAMES asked if Ms. Terrel would have a case against the
state, which issued a permit, if permitted noise levels
turned out to be excessive.
Number 491
MS. TERREL replied that, as she was not an attorney, she
could not address Rep. James' question. However, she noted
that SB 178 took away citizens' rights to seek recourse from
a polluter.
Number 493
REP. GREEN asked Ms. Terrel if she was aware that "view,
odor, or noise" were excluded from the provisions of SB 178.
He said that this was an addition made by the Senate.
Number 499
MS. TERREL indicated that her examples were not all-
inclusive.
Number 507
REP. NORDLUND stated that the "view, odor, or noise"
exclusion only applied to areas zoned as residential. He
added that in many cases people lived in areas which were
not zoned as residential.
Number 523
LAURIE FERGUSON CRAIG, representing ALASKANS FOR JUNEAU, a
group involved in the permitting process for the A-J mine,
testified against SB 178. She mentioned severe budget cuts
to the DEC, curtailing that agency's ability to enforce and
update permits designed to protect the public and property
owners. She said that citizens needed to have the ability
to protect their investments. She expressed her strong
opposition to SB 178's retroactivity clause. She noted that
pollution was not just an environmental issue, but also a
health issue.
MS. CRAIG stated that the public hearing process did not
guarantee safety. Regarding the A-J permit, she said that
there was overwhelming public opinion against the provisions
in the A-J permit. But, she said, there was a strong
likelihood that the permit would be approved. Of particular
concern to her organization was the city's and the state's
decision to address the permit in phases, because state
water quality revision standards were not yet available.
She said that the project as it now stood would violate
state and federal laws. She objected to allowing the
project to proceed, knowing that it violated the law.
MS. CRAIG referred to a mine in Colorado which had exceeded
its standards and gone bankrupt. The nation's taxpayers
were now paying $45,000 a day to prevent that mine from
becoming an environmental disaster. She said that she did
not want to see a similar situation occur in Juneau. She
noted that state agencies in Colorado had faced budget cuts,
resulting in inadequate monitoring and enforcement. She
said that if a permit were to be issued, it should be a
complete permit.
Number 589
MR. RICHARD HOFFMAN said that some people believed that
local, state, and federal agencies had failed on numerous
occasions to protect the public from adverse impacts of
large businesses. He noted that SB 178's sponsor had
indicated that the bill was an effort to remove
administrative hurdles and loosen environmental regulations
in order to make it easier for big business to carry out
projects.
MR. HOFFMAN commented that if a permitting agency knew that
it, instead of a permit-holder, could be sued, it would
likely carry out a more detailed permit process than it now
did. He noted that a great deal of information used when
granting permits came from a project's developers. If the
information was flawed, he said, under SB 178, the agency
would be liable for the improperly-issued permit, not the
permit-holder.
MR. HOFFMAN said that he lived on Thane Road, near the site
of the proposed A-J mine project. He said that for several
years, he had attempted without success to have his concerns
regarding decreased property values addressed by the city.
Additionally, he said that he had unsuccessfully tried to
get the city to address the problem of increased traffic on
an already hazardous road. He said that if, in the future,
these concerns turned out to be valid, under SB 178, the
permitting agency would be liable, not the permit-holder.
MR. HOFFMAN stated that the A-J mine permit would allow the
project to create more noise than was recommended by a
consultant. The noise, he said, would be generated 24 hours
a day, 365 days a year for three years. He noted that under
SB 178, neighbors would have no recourse when they
experienced excessive noise. He said that SB 178 would have
the effect of reducing public protection against harmful
projects. He added that the bill would force people to sue
the government in order to get relief from adverse impacts.
Number 663
BOB ENGELBRECHT, VICE PRESIDENT OF TEMSCO HELICOPTERS, noted
that he had testified in support of SB 178 at a Senate
hearing. Since that time, he said, the bill had been
amended. He commented that his company operated under a
U.S. Forest Service permit, which it obtained after
extensive public hearings. Although his company complied
with all of the conditions of the permit, he said, it was
still at risk for a lawsuit from any individual over a
nuisance issue. For that reason, he said, he supported SB
178. Unfortunately, the bill was amended on the Senate
floor to exclude noise. He asked the committee to amend the
bill so as to include noise.
Number 696
REP. NORDLUND asked Mr. Engelbrecht to further explain the
U.S. Forest Service permit under which Temsco operated.
Number 701
MR. ENGELBRECHT responded that the permit pertained to
impacts both on and off of the national forest. He noted
that if a new impact occurred, which was not covered in the
original permit, the permit would likely be amended. He
said that the permit process was expensive and lengthy.
REP. NORDLUND said that he had not known that the U.S.
Forest Service was concerned with areas outside of the
national forest boundaries. He stated that the Forest
Service probably cared more about impacts on the national
forest.
MR. ENGELBRECHT responded that there had been virtually no
impacts from his business identified on the national forest;
therefore, the focus of the permit process had been on non-
national forest impacts.
Number 721
REP. MACKIE asked Mr. Engelbrecht if the reason behind his
desire for the committee to amend language regarding noise
was because he feared being the target of a lawsuit. He
mentioned a situation in Ketchikan in which harbor residents
had complained about floatplane noise. He noted that noise
generated by a mine was substantially different from the
noise created by aircraft.
Number 739
MR. ENGELBRECHT replied that he did fear that Temsco would
be sued. He said that people had complained about the noise
of his operation. He noted that, in addition to receiving a
Forest Service permit, Temsco was part of a 1987 Federal
Aviation Administration (FAA) noise compatibility study
which involved public hearings. He commented that the
airport was found to be within noise guidelines for
airports. But, he said, despite Temsco's compliance with
its permit, it was subject to lawsuits.
MR. ENGELBRECHT noted that Temsco complied with airport
restrictions as well as FAA flight pattern requirements. He
asked Rep. Mackie to restate his question regarding mine
noise as compared to aircraft noise.
Number 758
REP. MACKIE asked Mr. Engelbrecht to discuss the difference
between impacts of noise from a new mine on existing
property owners and impacts of aircraft noise on people who
bought property adjacent to an airport.
Number 768
MR. ENGELBRECHT commented that he was not an attorney, and
did not know how language might be crafted so as to
differentiate between certain types of noise. He noted that
Temsco operated near an airport which had been there for 40-
50 years, and that the noise which Temsco's operations
produced was intermittent.
Number 778
REP. MACKIE asked Mr. Engelbrecht if he agreed that there
was a substantial difference between the type of noise
produced by Temsco's helicopters and the type of noise
generated by a new mine.
MR. ENGELBRECHT indicated his agreement.
REP. DAVIDSON asked if Temsco had ever been the target of a
civil nuisance action.
MR. ENGELBRECHT replied that, to his knowledge, it had not
occurred in Juneau. But, he said, in Ketchikan, air taxi
operators had once experienced a problem regarding noise.
He stated that he was unsure as to whether that problem
resulted in the filing of a nuisance lawsuit.
Number 794
REP. DAVIDSON asked Mr. Engelbrecht what fueled his concern,
given the fact that Temsco had never been sued, nor
threatened with a suit.
Number 795
MR. ENGELBRECHT responded that Temsco was threatened by
lawsuits. He noted that Temsco had operated under a permit
for nine years, and had improved its operations over the
years by lessening the amount of noise it produced. During
those nine years, he said, Temsco had had more restrictions
placed on it by the FAA and the Forest Service.
MR. ENGELBRECHT noted that the permit process was becoming
more difficult and time-consuming. He commented that one
person had objected to Temsco's permit and appealed the
Forest Service's decision to grant it. Additionally, he
said, that same person had threatened to sue Temsco.
TAPE 93-67, SIDE B
Number 000
RUSSELL HEATH, EXECUTIVE DIRECTOR OF THE ALASKA
ENVIRONMENTAL LOBBY, questioned whether nuisance lawsuits
were really a problem. Previous testimony indicated that
very few had ever been filed in Alaska. He said SB 178 was
introduced for one sole purpose, which was to kill a lawsuit
against APC in Sitka. He noted that the bill was introduced
only days after the court ordered APC's parent company to
disclose its financial records. APC, he explained, had
evaded complying with air and water quality standards for
years by claiming that it lacked the financial resources to
do so. Disclosure of financial records would destroy the
company's last defense against compliance with pollution
laws, he added.
MR. HEATH explained that the APC mill emitted sulphur
dioxide, which turned into sulfuric acid when released into
the atmosphere. That substance burned eyes and throats and
resulted in lowering property values for residences near the
mill, he said. A monitor erected several years ago near the
most heavily-impacted neighborhood indicated that the
ambient air quality was still within the terms of the APC
permit. He noted that APC's air quality permits were
renewed annually, despite vociferous public complaints about
the health hazard created by the release of the sulphur
dioxide. Additionally, he stated, the DEC had received
hundreds of written and telephonic complaints about the
health hazard.
MR. HEATH said the DEC had ignored the public's concerns for
the past 20 years. And, he said, the public had been
excluded from the permit writing process, even as observers.
Administrative appeals had been filed against the DEC
alleging that the public had been excluded from the permit
writing negotiations. A DEC hearing officer found those
allegations to be true, and ordered the DEC to include the
public in future negotiations, he said. To date, this had
not been done. He stated that, just because an activity
which caused a nuisance was permitted, that did not
guarantee the protection of private property. He also noted
that the government had failed to protect the rights and
interests of residents of the area surrounding a permitted
facility. When the government failed to provide protection,
he said, the only recourse was through the courts. Senate
Bill 178 takes away that recourse, he noted. He called the
bill bad policy and said that, as only two reported nuisance
suits had been filed since statehood, they were clearly not
a significant problem in Alaska.
Number 126
ROBERT LOESCHER, EXECUTIVE VICE PRESIDENT FOR RESOURCE
MANAGEMENT FOR SEALASKA CORPORATION, called the committee
members' attention to written testimony which he had
submitted. He commented that Sealaska was the owner of huge
amounts of private land. He noted that a number of
Sealaska's concerns had been addressed in the Senate's
amended version of SB 178. But, he said, Sealaska still had
some serious concerns about the bill. The main concern was
that SB 178 sought to eliminate frivolous nuisance lawsuits
by banning all lawsuits under certain circumstances. He
said that the bill as written would result in legitimate
nuisance claims not being heard, depriving private property
owners with legitimate claims of their day in court.
MR. LOESCHER noted that Sealaska supported some aspects of
SB 178, including the amended definition of "nuisance" and
the attempt to decrease the number of frivolous lawsuits.
He expressed Sealaska's concern about the bill's provision
that only property owners in areas zoned as residential
could sue for nuisance against a permit or license holder on
the basis of "view, odor, or noise." He noted that many
Alaskans lived in areas where there was no zoning, thus
providing less protection to those individuals living in
rural Alaska and Native villages. He said that Sealaska
opposed legislation which gave these people "second-class"
property rights. Also, he said the bill was too narrow, as
it only allowed nuisance suits based upon "view, odor, or
noise." He expressed an additional concern that SB 178's
retroactivity provision seemed to be specifically targeted
at one lawsuit, raising constitutional concerns. He noted
his agreement with former Attorney General Gross' comments
regarding the constitutionality of SB 178.
MR. LOESCHER stated that the Senate's substitute for SB 178
was an improvement over the original bill. He indicated
Sealaska's support for the bill's attempts to weed out
frivolous lawsuits; however, the bill would do so by banning
valid lawsuits by property owners who had suffered economic
loss due to the activities of another. He concluded by
saying that the sponsor could achieve that objective without
harming legitimate individual private property rights. He
commented that the bill was flawed, but not unredeemable.
He suggested that the bill be amended so as to include the
revised statutory definition of "nuisance," but not to ban
lawsuits based on nuisances. He also suggested that the
bill ban lawsuits filed for injunctive relief in cases where
a permit or license had been issued, but allow suits for
monetary damages. He expressed Sealaska's willingness to
work with the committee or the sponsor over the interim on
compromise language.
FLORIAN SEVER, representing the FOUNDATION FOR THE
PROTECTION OF THE COMMON PEOPLE, a public interest group,
testified via teleconference from Sitka. He said that he
opposed SB 178, as it was intended to deprive the citizens
of Alaska of their constitutional rights to due process and
equal protection. He urged the committee to defeat the
bill.
Number 236
PAM BRODIE, representing the SIERRA CLUB, testified in
opposition to SB 178, as it was unfair to property owners.
She said that the bill was clearly designed to negate a
pending lawsuit.
Number 260
REP. DAVIDSON requested that the committee work on SB 178
during the interim in order to craft a bill with which all
parties could agree. He noted that the former Attorney
General's extensive concerns regarding the bill raised a lot
of red flags.
Number 275
REP. KOTT asked if, while he was out of the room, a
representative from the Attorney General's office had
testified on the bill.
CHAIRMAN PORTER replied that no representative from the
Attorney General's office had testified on SB 178.
Number 277
REP. KOTT expressed a concern about the constitutionality of
the bill's retroactivity clause.
Number 284
REP. DAVIDSON offered Amendment 1, which would delete
Section 3 of SB 178.
CHAIRMAN PORTER objected.
Number 293
REP. DAVIDSON commented that much of the discussion
regarding the possible unconstitutionality of SB 178
centered around Section 3. He added that attempts to
undermine due process blackened the reputation of the
legislature.
Number 304
REP. NORDLUND spoke in support of the proposed amendment.
He said that the retroactivity provision was unfair to
people currently involved in litigation, and expressed his
opinion that the provision was clearly unconstitutional. He
encouraged the other committee members to support the
amendment.
REP. JAMES stated that it seemed to her that, when laws were
passed while a court case was pending, the court yielded to
the new laws, making a decision moot. So, she said, a
retroactivity clause in SB 178 would not matter very much.
REP. DAVIDSON commented that when the Judiciary Committee
passed bills out of committee, they should have been
thoroughly examined. He said that SB 178 was clearly a bad
law, with overwhelming opposition. He noted that dropping
Section 3 would not produce a good law, but would improve
SB 178 somewhat.
Number 361
REP. JAMES agreed with Rep. Davidson that the committee
needed to thoroughly examine those bills which it passed out
of committee. She said that she opposed the amendment, as
it did not improve SB 178. She expressed her opinion that
the amendment would have no effect.
Number 369
REP. DAVIDSON countered that the amendment would delete the
bill's retroactivity, obviously having an effect. He said
that the amendment would make a bad bill just a little bit
better.
Number 376
REP. NORDLUND stated that the committee had opinions from
attorneys which held that the bill's retroactivity clause
was unconstitutional. He added that if Rep. James supported
SB 178 and wanted it to be successful, it would make sense
for her to support the amendment.
Number 382
REP. KOTT asked to hear from Mr. Clark on the amendment.
Number 393
REP. DAVIDSON noted that, instead of asking the person who
wrote the bill to comment on it, the committee should ask
for the Department of Law's opinion on the amendment.
Number 397
MR. CLARK cited case law where retroactivity provisions were
found to be valid. He stated that Rep. James' earlier
comment regarding pending court cases and new laws was
correct. He commented that the Alaska courts had found
that, when used explicitly, retroactivity provisions were
valid.
Number 436
CHAIRMAN PORTER spoke in opposition to the amendment and in
support of SB 178. He said that he did not agree with the
opinion that the bill would preclude anyone's ability to sue
over a nuisance, with the single exception of "nuisance
suits." He expressed his opinion that the bill would
prevent suits from being filed over activities which were
specifically allowed under a permit, which was issued after
a public hearing process.
CHAIRMAN PORTER commented that, in the case of the A-J mine
project polluting a neighbor's well, that neighbor could
still sue the company, as the permit did not allow the
company to pollute the wells of neighbors. He said that if
the Sitka case was the type of case which SB 178 would
preclude, then he expressed his opinion that the case should
be precluded. If the Sitka case was not the type of case
which SB 178 was trying to preclude, he added, then the bill
would not affect the case. He commented that if the state
issued a permit which was so onerous that it allowed the
types of nuisances which the committee had heard testimony
about, then the state should be sued. He said that SB 178
represented a balance, and would provide the state with an
incentive to do a good job in issuing permits.
Number 495
REP. DAVIDSON commented that if SB 178 represented a
balance, then "lady liberty, I think, has lost her scales."
He commented that the committee had heard many private
property owners testify that they could not even get to
first base during the permitting process. He said that SB
178 dealt with a very important issue and required a great
deal of examination. He expressed his hope that the bill
was not being rushed through the committee in order to be
enacted prior to adjournment.
Number 521
REP. NORDLUND noted that there was a large cloud hanging
over SB 178. He expressed the viewpoint of some that the
bill was written to solve one company's problem with a
particular lawsuit. He commented that that was the worst
kind of bill for the legislature to be passing. In order to
remove the cloud, he said, the committee should remove the
bill's retroactivity clause.
A roll call vote was taken on Amendment 1. Reps. Nordlund
and Davidson voted "yea." Reps. Kott, Green, Phillips,
James, and Porter voted "nay." Amendment 1 failed.
Number 549
REP. DAVIDSON offered Amendment 2, which provided that if a
portion of SB 178 were found to be unconstitutional, then
the entire law would be repealed.
Number 559
CHAIRMAN PORTER stated that there was a general provision
that specified that if any portion of a statute was found to
be unconstitutional, then the rest of the statute was not
negated. He noted that Amendment 2 would contradict that
policy.
Number 569
GAYLE HORETSKI, COMMITTEE COUNSEL TO THE HOUSE JUDICIARY
COMMITTEE, stated that a general severability statute,
located in Title 1 of the Alaska Statutes, held that all
laws passed by the legislature should be read as though they
included the phrase, "if any provision of this is struck
down, the rest of it is severable." She said that the
courts interpreted all bills as if they included that
severability language. But, she said, there was nothing
that would prevent the legislature from making specific
exceptions to that statute, as Amendment 2 would do.
A roll call vote was taken on Amendment 2. Reps. Nordlund
and Davidson voted "yea." Reps. Phillips, Green, Kott,
James and Porter voted "nay." Amendment 2 failed.
REP. PHILLIPS made a motion to move SB 178 out of committee,
with individual recommendations. Rep. Nordlund and Rep.
Davidson objected.
Number 591
CHAIRMAN PORTER noted that the committee had received an
indirect request for a further amendment, which Mr. Clark
had outlined earlier in the hearing. He expressed his
opinion that adding the word "valid" before "statute" on
page 1, line 11, of the bill was not a good idea. And, he
said, replacing the word "judgment" with "decision" on page
1, line 14, was not necessary in his opinion. He expressed
his support, however, for the deletion of "real" on page 2,
line 9, of the bill.
REP. NORDLUND moved that the committee amend the bill so as
to strike "real" from page 2, line 9, of CSSB 178(JUD)am
(efd fld).
REP. DAVIDSON objected.
A roll call vote on the amendment was taken. Reps. Davidson
and James voted "nay." Reps. Green, Kott, Nordlund, and
Porter voted "yea." Rep. Phillips passed. The amendment
was adopted.
Because the motion to move SB 178 out of committee was still
on the table, the adoption of the amendment was deemed
invalid. Rep. Phillips removed her motion to move the bill
out of committee.
REP. PHILLIPS asked for an explanation of the effect of
deleting the word "real."
CHAIRMAN PORTER explained that deleting the word "real"
would expand the definition of property which might be
affected by a nuisance.
REP. NORDLUND moved the amendment.
Another roll call vote on the amendment was taken. Reps.
Davidson and James voted "nay." Reps. Green, Phillips,
Nordlund and Porter voted "yea." Rep. Kott passed. The
amendment was adopted.
REP. PHILLIPS made a motion to move the Judiciary Committee
substitute for SB 178 out of committee, with individual
recommendations. Objection was heard.
Number 673
REP. DAVIDSON said that it appeared that the committee was
rushing a very important bill which would affect a huge
number of people. He asked that the committee "back off"
and take into account the grave concerns of those who had
testified against the bill. He commented that SB 178 had
obviously been hurried through the Senate, and should not be
hurried through the House as well.
Number 689
REP. JAMES expressed her opinion that the intent behind SB
178 was good. But, she said that she agreed with Rep.
Davidson in that she was uncomfortable with the speed with
which the bill was moving through the legislature, as well
as the overwhelming testimony against the bill. She noted
her preference for keeping the bill in committee for the
time being, in order to address concerns surrounding it.
Number 702
CHAIRMAN PORTER commented that there was a difference of
opinion about the bill's scope and effect. He expressed his
opinion that the bill was a very simple one that would
preclude a "second bite" from someone who was attempting to
negate a permit.
TAPE 93-68, SIDE A
Number 000
REP. GREEN questioned the effect of deleting the word
"real."
Number 011
REP. NORDLUND stated that he would vote "no" on the motion
to move the bill out of committee, as the committee had not,
in his view, given the bill adequate consideration. He
noted that the committee had heard from several different
attorneys, but not from Attorney General Charlie Cole. He
indicated his desire to learn the Attorney General's opinion
of SB 178. He recommended that a subcommittee be formed to
work on the bill over the interim. He said that he did not
see any reason to hurry an important bill like SB 178.
Number 031
REP. PHILLIPS said that the concept behind SB 178 had been
discussed for many years. She added that the pendulum was
swinging the other way, and indicated her viewpoint that it
was about time that the pendulum swung the other way.
Number 046
REP. DAVIDSON disagreed with Rep. Phillips, saying that the
pendulum sometimes served to protect people from losing
their property. While others may have discussed the issue
embodied in SB 178, he said, it had received very little
discussion by the legislature.
Number 073
REP. NORDLUND noted that SB 178 had been introduced on March
31. He said that while the issue may have been before the
legislature in previous years, there were many freshmen
members of the legislature who had not had adequate
opportunity to consider the bill. He said that the bill had
been before the legislature for less than a month, and
commented that it was moving too fast. He added that it was
being "railroaded."
A roll call vote was taken on moving the bill out of
committee. Reps. Kott, Phillips and Porter voted "yea."
Rep. Nordlund voted "nay." Rep. Davidson voted "no,
unconstitutional." Reps. Green and James passed.
CHAIRMAN PORTER asked Rep. James and Rep. Green to vote. An
"at ease" was taken at 4:50 p.m. The committee reconvened
at 4:54 p.m.
Number 119
REP. GREEN said that his earlier concern had been
sufficiently addressed. He voted in favor of moving the
bill out of committee.
REP. JAMES voted "no" on moving the bill from committee.
And so, by a vote of 4-3, the Judiciary Committee substitute
for SB 178 passed out of committee.
ADJOURNMENT
CHAIRMAN PORTER adjourned the meeting at 4:55 p.m.
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