03/20/2012 01:30 PM Senate LABOR & COMMERCE

        HB 168-INJUNCTION SECURITY: INDUSTRIAL OPERATION                                                                    
                                                                                                                                
1:35:03 PM                                                                                                                    
CHAIR EGAN announced consideration of HB 168 [CSHB 168(JUD),                                                                    
labeled 27-LS0395\D, was before the committee].                                                                                 
                                                                                                                                
ANDY MODEROW,  Executive Director, Alaska  Conservation Alliance,                                                               
opposed HB 168,  and said he was concerned  that this legislation                                                               
is  unconstitutional,  punitive  and  would do  nothing  to  stop                                                               
frivolous litigants.  Further, it  would require Alaskans  to pay                                                               
the  corporate  costs  of  a  permit  delay  if  a  judge  grants                                                               
temporary release  after an initial  review, which places  a hold                                                               
on  a  permit. Temporary  release  is  only  granted if  a  judge                                                               
decides two  things: that the  case against the permit  is likely                                                               
to  succeed and  that  irreparable  harm will  be  caused in  the                                                               
absence of a temporary release being given.                                                                                     
                                                                                                                                
MR. MODEROW explained  that two things could cause  a strong case                                                               
against a permit in the eyes of  the court: if a court believes a                                                               
corporation  isn't following  the terms  of the  permit and  if a                                                               
court believes the government issued the permit in error.                                                                       
                                                                                                                                
1:37:00 PM                                                                                                                    
If  a case  is frivolous,  it will  be dismissed  and no  project                                                               
delay  will  occur,  Mr.  Moderow  said,  and  hence,  this  only                                                               
punishes  the  Alaskans  who  bring strong  cases  to  court  and                                                               
nothing  punishes the  frivolous litigants  who have  their cases                                                               
quickly dismissed.                                                                                                              
                                                                                                                                
Requiring  a  citizen  to  pay  for a  governmental  error  or  a                                                               
corporate misdeed puts a very  chilling effect on a long American                                                               
tradition  of   protecting  whistle  blowers.  Indeed,   it  only                                                               
penalizes the whistle blowers who make  a strong case in the eyes                                                               
of  the  judge. He  pointed  out  that this  legislation  impacts                                                               
Alaskans, communities, tribal  organizations and potentially even                                                               
the state of Alaska.                                                                                                            
                                                                                                                                
MR. MODEROW said in reviewing  cases where this bill would apply,                                                               
he found  one where Bella  Hammond and Vic Fisher  challenged the                                                               
legitimacy of some Pebble water  discharge permits. Alaskans like                                                               
them should  not have  to pay  for the  corporate cost  of delay,                                                               
particularly when after  a judicial review the  judge finds their                                                               
case likely has merit.                                                                                                          
                                                                                                                                
1:37:52 PM                                                                                                                    
This legislation has  been framed as a jobs bill,  but instead of                                                               
charging Alaskans  millions of dollars  to hold  their government                                                               
accountable, the core  of the problem could  be addressed through                                                               
adequately funded,  strong permitting programs that  make certain                                                               
that  when judicial  review occurs,  a permit  is upheld  and the                                                               
case is dismissed.  This is a better tactic than  taking away the                                                               
ability of an Alaskan to point out a governmental error.                                                                        
                                                                                                                                
1:38:44 PM                                                                                                                    
REPRESENTATIVE ERIC  FEIGE, sponsor of  HB 168, responded  that a                                                               
lot of objections  that have been raised are opinions,  and in SB
 he  was trying to  essentially allow  people to work  and not                                                               
have their  projects stopped unless  there is a good  argument to                                                               
the contrary.                                                                                                                   
                                                                                                                                
1:39:48 PM                                                                                                                    
SENATOR PASKVAN joined the committee.                                                                                           
                                                                                                                                
REPRESENTATIVE FEIGE  said this bill  does not prevent  a lawsuit                                                               
from being filed  or a request for an injunction  as part of that                                                               
lawsuit.  Whenever  an injunction  is  requested,  he said  there                                                               
generally two reasons:  one is a legitimate  concern that somehow                                                               
the  operation continuing  would have  an adverse  effect on  the                                                               
plaintiff and  the other is  to delay because of  a philosophical                                                               
objection to it.                                                                                                                
                                                                                                                                
He explained  that HB 168 provides  the judge with a  fair amount                                                               
of  latitude.  Court Rule  65(c)  already  allows for  bonds  and                                                               
security  to  be  posted,  but  this  measure  would  provide  an                                                               
additional emphasis  on the part  of the legislature to  give the                                                               
judge certain things  to consider when it comes  to that security                                                               
or bond.                                                                                                                        
                                                                                                                                
CHAIR EGAN closed public testimony and removed his objection.                                                                   
                                                                                                                                
SENATOR PASKVAN moved  to report CSHB 168(JUD),  version \D, from                                                               
committee  to  the next  committee  of  referral with  individual                                                               
recommendations  and  attached  fiscal  note(s).  There  were  no                                                               
objections, and it was so ordered.