Legislature(2021 - 2022)GRUENBERG 120
04/06/2022 01:00 PM House JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| HB399 | |
| Presentation: Uniform Law Commission | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| + | TELECONFERENCED | ||
| *+ | HB 399 | TELECONFERENCED | |
HB 399-STATE HISTORICAL ARTIFACTS; CRIMES
1:19:30 PM
CHAIR CLAMAN announced that the first order of business would be
HOUSE BILL NO. 399, "An Act relating to misconduct involving
confidential information; relating to artifacts of the state;
and relating to penalties regarding artifacts or historic,
prehistoric, or archeological resources of the state."
1:20:16 PM
JUDY BITTNER, Chief/State Historical Preservation Officer,
Office of History and Archaeology (OHA), Division of Parks and
Outdoor Recreation, Department of Natural Resources (DNR),
stated that OHA provides statewide historic preservation
programs to identify, document, study, evaluate, protect,
restore, and exhibit prehistoric, archaeological, and historic
sites and buildings. The office works under the state authority
of the Alaska Historic Preservation Act and the federal
authority of the National Historic Preservation Act. She
continued that OHA also serves as the State Historic
Preservation Office, which administers federal historic
preservation programs, represents the state's interest in
protecting heritage resources, and ensures federal agencies are
complying with laws and regulations.
1:21:22 PM
CHAIR CLAMAN requested a motion.
1:21:41 PM
VICE CHAIR SNYDER moved to adopt the proposed committee
substitute (CS) for HB 399, Version 32-GH2541\I, Bullard,
4/4/22, as a working document. There being no objection,
Version I was before the committee.
1:22:04 PM
MS. BITTNER, continuing the introduction, said that under the
National Historic Preservation Act, OHA reviews projects,
maintains a historic inventory of resources in Alaska, and
administers grants and programs. She said that under the Alaska
State Preservation Act, OHA staffs the Alaska Historical
Commission, issues permits for state lands, maintains an
inventory, assists designating sites and monuments, and serves
as the Geographic Names Board.
1:23:52 PM
MS. BITTNER explained that HB 399, [Version I], would enhance
protection of artifacts and archaeological sites by increasing
criminal penalties for violations of the Alaska Historic
Preservation Act.
CHAIR CLAMAN questioned whether adding [the stipulation of] a
mental state would create a new crime.
1:24:47 PM
MS. BITTNER stated that there are criminal penalties today, and
the proposed legislation would clarify the penalties by adding a
felony. She said the Department of Law (DOL) suggested that
adding a mental state would help with prosecution and
implementation of penalties concerning intentional acts, such as
stealing or vandalizing artifacts.
1:26:35 PM
CHAIR CLAMAN expressed the understanding that the crimes already
exist in statute under Title 41. He said that the proposed
legislation would add a mental state to the crimes. He
questioned Kaci Schroeder what the mental state would be without
the proposed legislation.
1:26:51 PM
KACI SCHROEDER, Assistant Attorney General, Criminal Division,
Department of Law, stated that DOL would default to mental
states addressed in Title 11, which are "knowing" as to conduct
and "reckless" as to the circumstance. She stated that the
inclusion of a mental state in the proposed legislation would
clarify and assist practitioners. She expressed hope that the
clarification would reduce arguments, "because occasionally we
can argue about that stuff when it is outside of Title 11." She
stated this would be an attempt to make it clearer.
1:27:19 PM
CHAIR CLAMAN questioned whether there should be [a clarification
of] a mental state, as the standard already exists in the U.S.
Supreme Court and Alaska Supreme Court. He considered that even
if [the legislation] does not list a mental state, there would
have to be a mental state. He questioned whether the common law
argument about the mental state in the existing statute would
apply.
1:27:52 PM
MS. SCHROEDER, in response, expressed the opinion that DOL would
likely argue there was some sort of negligence, but DOL would
like to avoid arguments which could result in bad case law.
CHAIR CLAMAN suggested that DOL would argue the mental state is
negligence for the criminal conduct, and the defense would argue
there is a higher mental state. He expressed the understanding
between criminal negligence and ordinary negligence. He
questioned whether DOL would be arguing the lower mental state,
while the defense would be arguing something else.
MS. SCHROEDER responded that there is a possibility that a
prosecutor could argue a lower mental state. She said, "I will
tell you though, the way these ... crimes are drafted, it is
very hard to imagine something that is not intentional or
knowing. I think that would be a tough argument for us to win."
She explained that this is the reasoning for the inclusion [of a
mental state] in [Version I], to attempt to reduce this level of
argument, so DOL could focus on the prosecution.
MS. SCHROEDER, in response to a series of follow-up questions,
stated that these crimes are not prosecuted frequently. She
related that the record shows two referrals. In response to a
second question, she stated that in 2015 one case had been
referred, and the prosecution of this case is complete, while
the other referral has been more recent, and it is unclear if
there will be a prosecution. In response to a third question,
she specified the cases had been referred to DOL for
prosecution, not the federal government.
1:29:27 PM
CHAIR CLAMAN questioned whether fish and wildlife violations and
artifact cases would more often be in federal court than in
state court.
1:29:45 PM
MS. SCHROEDER responded that DOL frequently prosecutes fish and
game [violations], but she expressed uncertainty concerning the
number of cases which have been referred to the federal
government. She stated that DOL retains a prosecutor who
focuses on these crimes, so they are prosecuted with some
frequency [in state court].
CHAIR CLAMAN questioned whether most fish and game violations
concern how the hunting took place and the manner [the animal]
was taken, as opposed to Lacey Act violations on the federal
level, which points to the species taken.
MS. SCHROEDER responded in the affirmative.
1:30:25 PM
CHAIR CLAMAN questioned the distinguishing feature in the
proposed legislation which would "bump" the level up from a
misdemeanor to a felony.
MS. SCHROEDER responded that [Version I] is currently drafted so
Section 1 would be a misdemeanor and Section 2 would be a
felony. In response to a follow-up question, she laid out that
the distinguishing conduct in Section 1 would be excavating,
removing, or destroying the artifact, and in Section 2 it would
be transporting, buying, selling, or possessing the artifact.
1:31:13 PM
REPRESENTATIVE DRUMMOND, per the Alaska Historic Preservation
Act, questioned Ms. Bittner whether artifacts in their natural
settings and artifacts in museums are both included in the
preservation of resources.
1:32:01 PM
MS. BITTNER responded that both would be correct. She said
artifacts are preserved in place at sites, and a permit would be
issued to excavate the site. When artifacts are removed with a
permit, they are reposited in the Alaska State Museum in Juneau
or in the Museum of the North in Fairbanks. She provided that
other museums may borrow the artifacts for displays.
1:32:47 PM
REPRESENTATIVE DRUMMOND, with a follow-up question, expressed
the understanding that when an industry would like to use a
potentially historic or prehistoric piece of land, the industry
would obtain a permit to remove any artifacts from "harm's way."
She questioned whether [Version I] would be referring to this
type of permit.
1:33:59 PM
MS. BITTNER responded that she is very familiar with the
process, as OHA is involved in thousands of projects, and, in
her position, she would be consulted with all federally funded
and state public construction projects. She said when there is
an adverse effect on a site, there would be a consultation to
negotiate a mitigation for the adverse effect. If it is a state
site, there would be a programmatic agreement or memorandum
agreement to spell out the mitigation and excavation process.
If the site cannot be avoided, the data will be recovered, and
if it is on state land, the artifacts will either go to the
Museum of the North or the Alaska State Museum. If it is found
to be on private land and part of the state's heritage, there
would be mitigation. She explained the process of determining
what would happen to the artifacts, as the type of mitigation
can vary.
1:36:21 PM
REPRESENTATIVE DRUMMOND, with a follow-up question, asked
whether this would apply, for example, when land is cleared for
electric transmission lines. She questioned whether the same
kind of care to investigate the potential for archaeological
resources would be taken.
1:36:48 PM
MS. BITTNER responded in the affirmative.
1:37:04 PM
VICE CHAIR SNYDER requested a written progression of the
legislation from the initial draft to [Version I], including who
participated and why the legislation had been instigated. She
questioned whether Alaska Native organizations had been
consulted.
MS. SCHROEDER responded that the current version of the bill has
taken "a while to get to," and DNR would need to be consulted on
the progression of the bill.
CHAIR CLAMAN deferred the question to the next hearing on the
legislation.
1:38:04 PM
CHAIR CLAMAN announced that HB 399 was held over.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB 399 Work Draft Committee Substitute v. I 4.4.2022.pdf |
HJUD 4/4/2022 1:00:00 PM HJUD 4/6/2022 1:00:00 PM |
HB 399 |
| HB 399 v. A 3.14.2022.PDF |
HJUD 4/1/2022 1:00:00 PM HJUD 4/4/2022 1:00:00 PM HJUD 4/6/2022 1:00:00 PM |
HB 399 |
| HB 399 Transmittal Letter 3.10.2022.pdf |
HJUD 4/1/2022 1:00:00 PM HJUD 4/4/2022 1:00:00 PM HJUD 4/6/2022 1:00:00 PM |
HB 399 |
| HB 399 Sectional Analysis v. A 3.15.2022.pdf |
HJUD 4/1/2022 1:00:00 PM HJUD 4/4/2022 1:00:00 PM HJUD 4/6/2022 1:00:00 PM |
HB 399 |
| HB 399 Fiscal Note DNR-DPOR 3.14.2022.pdf |
HJUD 4/1/2022 1:00:00 PM HJUD 4/4/2022 1:00:00 PM HJUD 4/6/2022 1:00:00 PM |
HB 399 |
| Alaska Uniform Law Commission Presentation to HJUD Committee 3.23.2022.pdf |
HJUD 4/6/2022 1:00:00 PM |
|
| Uniform Law Commission Items of Interest for Alaska 3.12.2022.pdf |
HJUD 4/6/2022 1:00:00 PM |