Legislature(2017 - 2018)BELTZ 105 (TSBldg)
04/17/2018 09:00 AM Senate JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| HB307 | |
| HB355 | |
| HB170 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 170 | TELECONFERENCED | |
| += | HB 355 | TELECONFERENCED | |
| += | HB 307 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 355-FIRE;FOREST LAND; CRIMES;FIRE PREVENTION
9:35:05 AM
CHAIR COGHILL announced the consideration of HB 355. [CSHB
355(JUD) was before the committee.]
9:36:28 AM
ALLIANA SALANGUIT, Staff, Representative David Guttenberg,
Alaska State Legislature, Juneau, Alaska, stated that HB 355
seeks to prevent human-caused fires. Some of these have been
very large and expensive. The Sockeye fire resulted in the loss
of 55 residences and $10 million, the McHugh fire cost $6
million, and the Hastings fire cost $20 million. The bill
inserts stronger language in the statute and implements a new
bail schedule. She continued the introduction speaking to the
following sponsor statement:
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.
9:37:56 AM
REPRESENTATIVE GUTTENBERG explained that HB 307 modernizes the
statutes related to wildland fires. The bail schedule is
separated based on the activity. It's one thing to build a fire
in a yard outside a burn barrel and without a grate whereas
setting a fire that gets out of control is another level of
crime. Knowingly and intentionally setting a fire is a felony.
Some of the existing definitions are clarified and much of the
language is modernized. He said if Chris Maisch agrees with any
changes the committee might make, he would not object.
9:39:47 AM
CHRIS MAISCH, State Forester and Director, Division of Forestry,
Department of Natural Resources (DNR), Fairbanks, Alaska, stated
that about 80 percent of the wildland fires are preventable
because they are human caused. They are very expensive and
preventing even one could save the state treasure $20 million
and prevent risk to the public and the firefighters. He said
another key point is that the division has aggressive education
programs. These include the Firewise Program that teaches
homeowners and businesses how to survive a wildland fire and
several school-based programs that promote smart burning
practices, especially during fire season. HB 355 provides a more
modern approach to enforcement, which any good education program
needs.
CHAIR COGHILL stated support for a strong educational program
combined with increased penalties. He noted that the fire
department in his area provides good education when it issues a
burn permit.
9:41:42 AM
MS. SALANGUIT delivered the following sectional analysis for HB
355.
Section 1. Amends AS 11.46.427(a)(2) by adding
references to AS 41.15.060 - 41.15.120 to make it
easier for agencies to coordinate enforcement of
similar statutes that appear in different Titles of
law.
Section 2. Amends AS 41.15.010 to add the word
forested land to the intent language of this statute.
Forested land is already defined in AS 41.15.170 and
brings consistency to terminology used in the
statutes.
Section 3. Amends AS 41.15.040 by updating terminology
by deleting the "division of land" and adding
"division of forestry". Clarifies the right of entry
to public or privately owned land for the purpose of
preventing, suppressing and controlling a wildland
fire to include for the purpose of "investigating" and
"when responding to a wildland fire or suspected fire
or administering the provisions of this chapter."
Section 4. Adds a new subsection (b) to AS 41.15.040
that clarifies that a person may not interfere with or
prohibit access authorized under (a) of this section,
which is the right to enter for the purposes stated.
Section 5. Amends AS 41.15.050 Fire Season to allow
the commissioner the ability to designate other
periods as fire season at any time in order to allow
open burning only by permit or to prohibit open
burning.
Section 6. Amends AS 41.15.060. Permits. To include
obtaining a permit for setting of fires, use of
burning devices, and other activities and use of land
that increases fire danger. This would include burning
devices such as burn barrels, a common source of urban
interface ignitions. This section is also amended to
remove the type of offense a violation of this section
would be and relies on a new section to establish
types of violations.
Section 7. Adds a new subsection to AS 41.15.060
stating that a person may not participate in any
activities that increase fire danger without a permit
as prescribed by the commissioner in regulation.
Section 8. Amends AS 41.15.70. Disposal of burning
materials to read "may not discard...burning materials
on forested land." Repeals language on the type of
violation this offense would be and relies on
amendments in Section 13 of this bill that provides a
new range of violations. It also removes a reference
to the "fire season" as the period of time this
section applies and removes a reference to "public or
private land".
Section 9. Amends AS 41.15.090. Building or leaving
fires. To read " ... may not start a fire ... without
first clearing the ground." The type of offense for a
violation of this section is removed and relies on a
new section to establish types of violations.
Sections 10. Amends AS 41.15.090 by adding a new
subsection (b) A person who starts a fire in or near
forested land may not leave the fire before totally
extinguishing the fire. This change makes it very
clear that leaving a fire unattended will result in
consequences.
Section 11. Clarifies AS 41.15.100 Setting fires
without consent. Updates language to "may not set on
fire forested land ... " to make this section
consistent with terminology and intent. The type of
offense for a violation of this section is repealed
and relies on a new section to establish types of
violations.
Section 12. Amends AS 41.15.110 Uncontrolled spread of
fire; leaving a fire unattended by repealing the type
of offense for a violation of this section and relies
on a new section to establish types of violations.
[The bail schedule]
Subsection (b) has verbiage change to shall, a
positive action as opposed to the deleted current
language "who neglects to." New language is added to
make it clear that a person may not leave a fire
unattended and the type of offense for a violation of
this section is removed and relies on a new section to
establish types of violations.
Subsection (c) updates terminology and makes it clear
in any criminal action brought under this section that
the escape of a fire may be evidence that the person
acted knowingly. This change helps define mental
state.
Section 13. Amends AS 41.15.120 by including the term
investigate as one of the criteria for when an officer
or employee of the United States or the state who is
authorized to prevent and suppress fire requests a
person to assist with such efforts. It also adds the
word shall as opposed to "fails to" in determining if
a person is in violation of the statute. The type of
offense for a violation of this section is removed and
relies on a new section to establish types of
violations.
Section 14. Amends AS 41.15.130 Backfires. Adds the
terminology and burnouts to allow fire suppression
activity as "directed by an officer or employee of the
U.S. or state who is authorized ... " and makes it
clear that AS 41.15.045 (Civil immunity) applies to
the activities under this section.
Section 15. Repeals and reenacts AS 41.15.140 to
establish a range of violations and fines that
increase with the seriousness of the offense. This
section also links to the criminal statutes to improve
the understanding and consistency between enforcement
agencies and the courts.
Subsection (a) makes it clear that if AS 41.15.150
applies, a felony charge, the following sections do
not apply.
Subsection (a)(l) establishes a class A misdemeanor
offense for violations of AS 41.15.010- 41.15.130 for
persons who knowingly violate this section.
Subsection (a)(2) establishes a fine amount in
accordance with AS 12.55
Section 16. Amends AS 41.15.150 to provide specific
criteria for criminal burning in the first degree if
(a)(l) the person violates AS 41.15.155, and (2) a
provision of 41.15.010 - 41.15.130 or a regulation
adopted under AS 41.15.010 - 41.15.130.
Subsection (b) provides for a class B felony if in
violation of subsection (a) of this section and is
punishable as provided in AS 12.55 the Sentencing and
Probation Chapter of Title 12.
Section 17. Amends AS 41.15.150 by adding a new
section to provide specific criteria for criminal
burning in the second degree if the person (a)(l)
knowingly sets a fire, (2) with criminal negligence,
the person (a) permits the fire to spread beyond the
person's control or (b)fails to prevent the fire from
spreading to forested land or other flammable material
and (3) as a result, the fire burns forested land or
other flammable material located or growing on land
that is not owned, possessed or controlled by the
person
Subsection (b) provides for a class C felony if in
violation of subsection (a) of this section and is
punishable as provided in AS 12.55 the Sentencing and
Probation Chapter of Title 12.
Subsection (d) provides for an upgrading violation to
a class B felony if the initial setting of the fire is
in violation of AS 41.15.010 - 41.15.130 or a
regulation adopted under AS 41.15.010 - 41.15.130.
Section 18. Amends AS 41.150.160. Double damages in
civil actions to clarify applicable statutes for this
provision.
Section 19. Amends AS 41.15.170 to add paragraph (5)
"knowingly" which has the meaning in AS 11.81.900 and
adds paragraph (6) "recklessly" which has the meaning
given in AS 11.81.900.
Section 20. Amends AS 41.15.950 to add (b)(4) a new
subsection to provide clear authority to issue a
citation to a person who violates a provision of AS
41.15.010 - 41.15.170 or a regulation adopted under
this chapter.
Section 21. Adds a new section AS 41.15.960 directing
the supreme court to establish a bail schedule for
violations of statute specified in this bill.
Section 22. Repeals AS 41.15.080 which was a section
on equipment and notice requirement for operators of a
conveyance on or above forested land to be equipped
with a receptacle for the disposal of burning
material, shall post or display a copy of AS 41.15.050
- .080 and 41.15.140 in a conspicuous place.
Additionally, an operator of a milling, logging or
commercial operation shall also post and display a
copy of the statute per the previous notation and if
found in violation of this section, is guilty of a
misdemeanor.
Section 23. Amends the uncodified law of the State of
Alaska by adding a new section to read: TRANSITION:
REGULATIONS. The Department of Natural Resources may
adopt regulation necessary to implement the changes
made by this Act. The regulations take effect under AS
44.62 (Administrative Procedure Act), but not before
the effective date of the law implemented by the
regulation.
Section 24. Provides courts 120 days to establish bail
schedule required by Section 21.
Section 25. Sections 23 and 24 take effect immediately
under AS 01.10.070 (c)
Section 26. Except as provided in Section 25, this Act
takes effect July 151, 2018.
9:47:52 AM
CHAIR COGHILL asked Mr. Maisch for an explanation of the bail
schedule.
MR. MAISCH explained that the bail schedule will be similar to
traffic tickets and the types of offenses one can receive for
violations. It is established in regulation and the supreme
court will approve it to ensure consistency of fine amounts for
different offenses. Importantly, the bill also crosslinks Title
41, the natural resources statutes, with Title 11, the criminal
code. Previously it was difficult for state troopers, district
attorneys, and others to understand and enforce the fire code.
The law establishes a misdemeanor A offense and class B and C
felonies. The tiered structure is based on the seriousness of
the offense. Previously there was just one unclassified felony
offense and one misdemeanor offense.
CHAIR COGHILL offered his understanding that a criminal charge
would not relieve the civil liability.
MR. MAISCH said that's correct. Depending on the circumstances,
there can be both a civil and criminal process.
9:50:50 AM
CHAIR COGHILL noted the individuals from the Department of Law
who were available to answer questions. He asked Ms. Meade to
discuss the bail schedule and proposed regulations.
9:51:19 AM
NANCY MEADE, General Counsel, Administrative Office, Alaska
Court System, Anchorage, Alaska, explained that a bail schedule
allows somebody to deal with their offense without a mandatory
court appearance. The provision in Section 21 instructs the
court to create a schedule of the amount of the fines.
Typically, the court's administrative office meets with the
agency with expertise to establish the amounts of the fines and
that draft is presented to the supreme court for approval. The
citizen who receives a citation doesn't need to show up in court
to pay the fine unless they dispute the charge.
SENATOR WIELECHOWSKI asked the definition of forested land.
MS. SALAGUIT read the definition in Sec. 41.15.170.
SENATOR WIELECHOWSKI asked if that includes a backyard.
MR. MAISCH said yes; it includes anything that is vegetative and
combustible under the right circumstances. The definition is
purposefully broad because it's difficult to anticipate what
might be a flammable vegetative material. For example, a spark
from a lawnmower can and has ignited the white fluff in aspen
tree seed pods.
SENATOR WIELECHOWSKI reviewed the language in Section 3
regarding the right of entry to control and suppress fires. He
asked if the commissioner or authorized agent could order people
in the Anchorage Hillside area to chop down their trees to
prevent fires or order them to clean up debris that could cause
a fire.
MR. MAISCH said no, but they would address that through the
Firewise Program. Section 3 allows the Division of Forestry to
enter a property to prevent, suppress, and investigate reports
of smoke. Investigate is a key term because firefighters would
enter property to look for the cause and origin of reported
smoke.
SENATOR WIELECHOWSKI asked if Section 3 allows an authorized
agent of the commissioner or an officer to enter a property and
tell the homeowner to chop down their black spruce trees and/or
do it themselves for the purpose to preventing a fire.
MR. MAISCH said no.
SENATOR WIELECHOWSKI read the language in Section 3 and
questioned that it doesn't give the commissioner or authorized
agent the authority to tell a homeowner they needed to chop down
their trees to prevent a wildfire and then do it.
MR. MAISCH said it would depend on context. They could chop down
trees to prevent a fire in progress from spreading. They could
not chop down someone's trees as a fire prevention measure
SENATOR WIELECHOWSKI said the language in Section 3 does not say
it has to be an encroaching fire. He asked where there is a
provision that limits the authority to an encroaching fire.
9:59:09 AM
CHAIR COGHILL said he believes the title to Sec. 41.15.040,
Right to entry to control and suppress fires, would be the
controlling factor.
MR. MAISCH agreed and pointed out that farther along in .040 it
specifically talks about "preventing, controlling, or
suppressing a fire or destructive agent." The context of Section
3 is that an emergency must exist for someone to remove
vegetative material.
SENATOR WIELECHOWSKI said he was trying to establish a clear
record because the language is loose. He reviewed the language
in Section 8, asked how discard is defined, and if shooting a
firecracker in your backyard would violate the section.
MR. MAISCH said the definition is broad and includes anything
that leaves your hand and goes into forested land and causes a
fire.
CHAIR COGHILL observed that the language doesn't explicitly say
causes a fire.
MR. MAISCH said they would not be investigating unless they had
a report from a citizen that someone was lighting fireworks
during a period when a burn closure was in place. That would be
a criminal offense even if it didn't cause a fire. A person
would not be cited if they discarded fireworks that did not
cause a fire.
SENATOR WIELECHOWSKI said he reads Section 8 to mean you can't
shoot a firecracker anywhere in the state on forested land.
10:01:40 AM
MR. MAISCH said he was changing his answer. Someone who discards
a firework during fire season could be cited, but it would be
unlikely unless it started a fire. He added that municipal codes
are often more restrictive than the state fire codes and
fireworks is a very specific cause of fire. From a fire
prevention standpoint, they would recommend not using fireworks
anytime during fire season.
SENATOR WIELECHOWSKI said he reads Section 8 to broadly restrict
the use of fireworks at any time because forested land is
defined as any land that has vegetative material. He reviewed
the language in Section 9 and asked what clearing the ground
entails and how immediately around is defined.
MR. MAISCH said their education materials provide that
information. Clearing the ground entails removing organic
material down to the mineral layer. The recommended distance to
clear depends on the size of the fire. Their educational
material also covers that. He suggested that any continuing
questions on Section 8 could be directed to the Department of
Law.
CHAIR COGHILL deferred further questions until the meeting
tomorrow.
10:05:49 AM
CHAIR COGHILL held HB 355 in committee.