Legislature(2017 - 2018)BARNES 124
02/28/2018 01:00 PM House RESOURCES
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| Audio | Topic |
|---|---|
| Start | |
| Presentation(s): Alaska Minerals Commission | |
| HB355 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| *+ | HB 355 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 355-FIRE;FOREST LAND; CRIMES;FIRE PREVENTION
1:56:29 PM
CO-CHAIR JOSEPHSON announced that the final order of business
would be HOUSE BILL NO. 355, "An Act relating to the crime of
criminally negligent burning; relating to protection of and fire
management on forested land; relating to prohibited acts and
penalties for prohibited acts on forested land; and providing
for an effective date."
1:57:12 PM
REPRESENTATIVE DAVID GUTTENBERG, Alaska State Legislature,
sponsor of HB 355, paraphrased from the following sponsor
statement [original punctuation provided]:
Most of the current Division of Forestry fire
prevention laws were enacted in 1961. HB 355 updates
and modernizes the wildland fire prevention and
enforcement statutes, with the ultimate goal of
reducing the number of human caused fires in Alaska.
This bill reduces risks to human life, loss of homes
and structures, extensive property damage, and fire
suppression costs.
Current burning offenses are unclassified misdemeanors
that require a mandatory court appearance and are
punishable by a fine of between $100-$1,000 or 10 days
to 6 months imprisonment. The bill replaces the
current system with a tiered prevention and
enforcement structure, similar to fish and game
violations. Violations of regulations adopted under
the bill that would be "bail schedule" offenses,
allowing DOF prevention officers to issue citations
for violations of these offenses. The bill also gives
state fire prevention officers more flexibility in
responding to burning violations and investigating
wildland fires. "Knowing" violations of the bill
provisions would be a class A misdemeanor, and
resolution would require a mandatory court appearance.
The bill also addresses enforcement gaps in the
existing arson and criminally negligent burning
statutes in AS 11.46, makes technical changes to
clarify the right of state fire prevention officers to
enter land to investigate wildland fire and
establishes a misdemeanor offense of interfering with
this right of access, and corrects potentially
conflicting statutory provisions ..
Over the last 15 years, the length of the wildland
fire season and amount of acreage burned each year-
especially in and near communities-has increased
dramatically. The statutes and regulations that guide
our prevention and management of wildland fire need to
keep pace with these changes which is why I hope you
will join me in supporting this bill.
REPRESENTATIVE RAUSCHER asked how provisions in the bill would
affect access to private land.
REPRESENTATIVE GUTTENBERG deferred to legal counsel.
1:59:53 PM
JOHN "CHRIS" MAISCH, State Forester and Director, Division of
Forestry (division), Department of Natural Resources (DNR),
expressed his support for HB 355, which would reduce human
caused wildland fires and human risk. The bill modernizes
existing statute in two areas: to allow firefighters to have a
tiered approach to enforcement when needed, and to expand the
education aspect of the division's fire prevention program. He
explained Fire Prevention Officers are firstly firefighters and,
secondly, wildland fire investigators who determine the cause
of, and responsibility for, a wildland fire and assess fiscal
recovery - when appropriate - through criminal and civil legal
proceedings. Fire Prevention Officers do not carry guns and are
trained to withdraw when necessary and seek assistance from
Alaska State Troopers, Department of Public Safety. In response
to Representative Rauscher, he said the division already has in
statute the right to enter land for the suppression, control,
and prevention of wildland fire, thus the bill seeks to clarify
that the division also has the right to enter land for
investigative purposes. For example, after a fire starts on
private land, part of the control and suppression efforts are to
enter the land to determine the point of origin, which may
include following the path of the fire to other private land to
investigate the source and cause. Mr. Maisch said HB 355 would
clarify "that investigative piece is included in the terminology
that we used in the previous statute."
REPRESENTATIVE RAUSCHER expressed his understanding the bill
would mean private property owners give up their right to give
permission to the division to investigate [on their property].
MR. MAISCH stated AS 41.15.040 provides the division the right
to enter land to prevent, suppress, or control a wildland fire
or a destructive agent. Further, AS 41.15.950 allows police
officers, and any DNR employees who are authorized by the
commissioner, to request a warrant from an officer or court of
competent jurisdiction. He restated in an immediate situation
during a fire, the division has the right to enter private land;
after control of a fire, the division must request a warrant to
investigate.
2:05:09 PM
REPRESENTATIVE RAUSCHER surmised after a fire is out, the bill
allows access without seeking permission through a court order.
MR. MAISCH clarified after the fire is controlled, the division
does not have authority to enter land without permission, and if
access were denied by the landowner, a search warrant would be
necessary. In further response to Representative Rauscher, he
said the foregoing statement applies to current statute and
after the change proposed by HB 355. In response to Co-Chair
Josephson, he said the clarification occurs in the bill [on page
2, line 14] in Section 3, with the addition of the word
"investigating."
REPRESENTATIVE GUTTENBERG gave an example of a situation in
which an investigator was not present during a fire and was
denied permission for access afterward: A warrant or a court
order would be necessary.
REPRESENTATIVE RAUSCHER asked who currently completes an
investigation.
MR. MAISCH said Division of Forestry employees are trained to
investigate wildland fire origin and cause; for more complicated
fires and those involving structures, investigators are aided by
the office of the Alaska State Fire Marshal/Director, Division
of Fire and Life Safety, Department of Public Safety. Fire
investigators staff each of the division's area offices.
REPRESENTATIVE RAUSCHER restated his question as to the purpose
of proposed Section 3.
MR. MAISCH further explained the purpose is to clarify "that
investigating a fire's cause and origin is also covered under
this statute." He deferred to the Department of Law (DOL).
2:10:03 PM
ANNE NELSON, Senior Assistant Attorney General, Natural
Resources Section, Civil Division(Anchorage), DOL, advised the
proposed bill would not impact the constitutional law that
applies to investigative searches and privacy protections, but
clarifies the activities undertaken by the division in the
investigation of a fire, or when responding to an active fire.
REPRESENTATIVE RAUSCHER restated his question.
MR. MAISCH further explained the investigation aspect - that is
implied in the prevention language of the existing statute - is
clarified.
REPRESENTATIVE BIRCH expressed his understanding if a
firefighter is fighting a fire on property and views items
perceived to be the cause of the fire, the bill would allow
those items to be used in court at a later date, which is
reasonable. He opined the bill is reasonable and provides
clarity.
REPRESENTATIVE LINCOLN questioned whether the bill applies to
fires that have been suppressed, or only when firefighters are
actively fighting a fire. He asked, "but is this also the
expectation that once a fire is suppressed, and you're going
back to the scene to investigate further, at that point would
you need to get the, a prior approval or a warrant ...?"
2:13:49 PM
MR. MAISCH answered after a fire is out, when the division has
permission from the landowner, it can proceed with an
investigation; if not, it would seek a warrant to continue the
investigation. Mr. Maisch continued to the most important
aspect of the bill, which provides the division a three-tier
enforcement tool to address violations of burn regulations.
Currently, the process to deal with minor infractions is
cumbersome, therefore, the division typically issues warnings
except for the most egregious offenses. HB 355 provides the
division with three tiers of responses: firstly, a ticket with
a predetermined bail schedule for an infraction; secondly, a
class A misdemeanor offense; thirdly, B and C felony offenses.
In addition, the bill clarifies two types of firefighting
techniques - more commonly referred to as burnouts or backburns
- under the civil immunity statute.
2:16:41 PM
CO-CHAIR JOSEPHSON asked whether a lawsuit has been brought
against the division or against firefighters.
MR. MAISCH recalled there was a lawsuit challenging
discretionary immunity related to the Miller's Reach Fire [that
burned near Houston, from 6/2/96 to 6/15/96]. He added, "So,
since that time we've never had any specific challenge on the
discretionary immunity ... unless we do something that's beyond
our training or knowledge base, and then, of course, we can be
held negligent, just like anybody else." Returning attention to
the bill, he noted the bill also seeks to replace terminology
that is no longer in use, and brings the statute into a modern
format.
REPRESENTATIVE GUTTENBERG assured the committee a property owner
would not lose any constitutional rights; after a fire, an
investigator still needs permission, or a court order, to access
[private] property. He reviewed other aspects of HB 355.
CO-CHAIR JOSEPHSON pointed out AS 41.15.150 - which imposes one
to ten years of imprisonment in the case of malicious or wanton
setting of a fire - is deleted by the bill. He asked whether
this sort of misconduct is still addressed [within provisions of
HB 355].
MR. MAISCH said yes; that type of offense would be raised to a
felony or arson charge, or a misdemeanor, depending on the
gravity of the offense. In further response to Co-Chair
Josephson, he confirmed there is still a differentiation between
accidental and wanton/malicious offenses.
REPRESENTATIVE PARISH directed attention to the bill on page 2,
beginning on line 30 and continuing to page 3, line 1, which
read as follows [in part]:
Sec. 41.15.060. Permits. The commissioner shall, by
regulation, prescribe the conditions of and the manner
for obtaining a permit for the setting of fires, use
of burning devices, and other activities and uses of
land that increase fire danger [.FAILURE TO OBTAIN THE
REQUIRED PERMIT, OR VIOLATION OF A CONDITION OF THE
PERMIT IS A MISDEMEANOR].
REPRESENTATIVE PARISH asked whether fires in a burn barrel are
affected by the foregoing change.
2:21:44 PM
MR. MAISCH said no; however, burn barrels and other outdoor
fires are required to have a permit during fire season, and
permittees must contact the division to verify it is a safe day
for open burning in their area.
CO-CHAIR JOSEPHSON noted failure to get a permit is currently a
misdemeanor, and questioned how this is changed by the bill.
MR. MAISCH stated currently, one who is burning without a permit
would get a warning, except for a repeat offender, who may be
issued a violation at the option of the prevention officer.
After passage of HB 355, burning without a permit would be a
minor offense listed on the bail schedule, and a repeat offender
could be issued a citation. In further response to Co-Chair
Josephson, he said a misdemeanor would be issued for a more
serious offense. He deferred to Ms. Nelson.
CO-CHAIR JOSEPHSON surmised HB 355 reduces a penalty because the
offense is more manageable through a bail schedule.
2:25:08 PM
MS. NELSON added violations of any of the provisions from
Section 6 through new Section 41.15.140, are a class A
misdemeanor or either a bail schedule offense - resolved by the
payment of a fine - or a mandatory court appearance misdemeanor.
For example, Section 6 would make burning without a permit a
misdemeanor; however, depending on regulations and the proposed
bail schedule, sentences could be resolved by the payment of
bail and would not be criminal in nature.
REPRESENTATIVE TALERICO suggested the intent of changing from
violations to a noncriminal bail schedule is so prevention
officers can respond appropriately to an offense; in fact, the
maximum punishment for a class A misdemeanor can be 30 days in
jail and a fine of $25,000.
MS. NELSON agreed. She said the bail schedule in the bill has
an upper limit of $5,000, and a violation approaching a criminal
penalty would require a mandatory court appearance. Ms. Nelson
characterized bail schedule offenses as the first tier of
prevention and "light enforcement" in response to minor
incidents.
CO-CHAIR JOSEPHSON questioned whether the court system added
violations of the fire code to the bail schedule.
MS. NELSON advised the Alaska Supreme Court needs specific
statutory legislative authority to establish the bail schedule
found in Section 21, subsection (b), of the bill.
2:30:20 PM
REPRESENTATIVE PARISH asked whether tundra would be considered
forested land.
MR. MAISCH said the bill defines forested land as any burnable
organic material. In further response to Representative Parish,
he said the definition of forested land is AS 41.15.170(3) which
read:
"forested land" includes all land on which grass,
brush, timber, and other natural vegetative material
grows;
REPRESENTATIVE PARISH suggested that definition would include
farmland, tideland beach grass and seaweed.
MR. MAISCH said correct.
2:33:45 PM
The committee took a brief at-ease.
CO-CHAIR JOSEPHSON set the deadline for amendments to HB 355 at
5:00 p.m. on 3/1/18.
[HB 355 was held over.]
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB 355 Sectional Analysis 2.21.18.pdf |
HRES 2/28/2018 1:00:00 PM HRES 2/28/2018 6:00:00 PM HRES 3/5/2018 1:00:00 PM HRES 3/9/2018 1:00:00 PM |
HB 355 |
| HB 355 Sponsor Statement 2.21.18.pdf |
HRES 2/28/2018 1:00:00 PM HRES 2/28/2018 6:00:00 PM HRES 3/5/2018 1:00:00 PM HRES 3/9/2018 1:00:00 PM |
HB 355 |
| HB 355 Supporting Document- Expanded One Pager 2.21.18.pdf |
HRES 2/28/2018 1:00:00 PM HRES 2/28/2018 6:00:00 PM HRES 3/5/2018 1:00:00 PM HRES 3/9/2018 1:00:00 PM |
HB 355 |
| HB 355 Ver A 2.21.18.pdf |
HRES 2/28/2018 1:00:00 PM HRES 2/28/2018 6:00:00 PM HRES 3/5/2018 1:00:00 PM HRES 3/9/2018 1:00:00 PM |
HB 355 |
| DNR Fiscal Note, HB 355.pdf |
HRES 2/28/2018 1:00:00 PM HRES 2/28/2018 6:00:00 PM HRES 3/5/2018 1:00:00 PM |
HB 355 |
| Law Fiscal Note, HB 355.pdf |
HRES 2/28/2018 1:00:00 PM HRES 2/28/2018 6:00:00 PM HRES 3/5/2018 1:00:00 PM HRES 3/9/2018 1:00:00 PM |
HB 355 |
| Alaska Minerals Commission 2018 Report.pdf |
HRES 2/28/2018 1:00:00 PM |
|
| HRES Alaska Minerals Commission Presentation 2.28.18.pdf |
HRES 2/28/2018 1:00:00 PM |
|
| HB 355 Supporting Document- Alaska Fire Chiefs Letter of Support 2.28.18.pdf |
HRES 2/28/2018 1:00:00 PM HRES 2/28/2018 6:00:00 PM HRES 3/5/2018 1:00:00 PM HRES 3/9/2018 1:00:00 PM |
HB 355 |