04/06/2009 01:30 PM Senate JUDICIARY

         SB 148-LIABILITY FOR TRIBAL ROAD CONSTRUCTION                                                                      
                                                                                                                                
1:41:39 PM                                                                                                                    
CHAIR FRENCH announced the consideration  of SB 148 and asked for                                                               
a motion to  adopt work draft committee  substitute (CS), version                                                               
\E, as the working document.                                                                                                    
                                                                                                                                
SENATOR WIELECHOWSKI  moved to  adopt work draft  CS for  SB 148,                                                               
labeled  26-LS0685\E. There  being  no objection,  version E  was                                                               
before the committee.                                                                                                           
                                                                                                                                
CHAIR FRENCH explained that the language  in the CS is the result                                                               
of  lengthy  negotiation  between   the  Department  of  Law  and                                                               
representatives  from  the  plaintiffs   bar  in  Anchorage.  His                                                               
understanding  is that  the language  is  mutually agreeable.  He                                                               
asked Mr. Putzier his perspective.                                                                                              
                                                                                                                                
PETER   PUTZIER,  Senior   Assistant   Attorney  General,   Civil                                                               
Division,  Opinions,  Appeals,  &   Ethics,  Department  of  Law,                                                               
Anchorage,  said he  hasn't seen  a copy  of the  CS, but  he had                                                               
agreed to something in principle.                                                                                               
                                                                                                                                
CHAIR FRENCH  said he  would have  a copy  posted online.  In the                                                               
meantime, he read subsection (d) starting on page 1.                                                                            
                                                                                                                                
1:44:51 PM                                                                                                                    
MR. PUTZIER  said the language  differs in some respects  to what                                                               
was agreed upon, but the  changes probably will be acceptable. "I                                                               
will want to look at it more  closely, but I think we can proceed                                                               
on this basis," he added.                                                                                                       
                                                                                                                                
CHAIR FRENCH  agreed that  the drafters  changed the  language in                                                               
the  definition   of  "independent   negligence"  but   he  feels                                                               
confident that the phrases mean nearly the same thing.                                                                          
                                                                                                                                
MR. PUTZIER said that is his initial impression as well.                                                                        
                                                                                                                                
CHAIR  FRENCH  suggested  that with  the  possible  exception  of                                                               
several words on page 1, line  13, this is a concept everyone can                                                               
agree to. He noted the letter  of support from the Manley Village                                                               
Council.                                                                                                                        
                                                                                                                                
1:46:49 PM                                                                                                                    
SENATOR   THERRIAULT  asked   why  the   phrase  "other   federal                                                               
transportation  programs  or  transportation grants  designed  to                                                               
benefit tribes" was deleted and what the impact is.                                                                             
                                                                                                                                
MR. PUTZIER explained that the  plaintiffs  bar expressed concern                                                               
that the phrase  didn't define specific programs  or grants. That                                                               
made it unclear  whether the Federal Tort Claims  Act would apply                                                               
under all  circumstances and therefore  whether there would  be a                                                               
guaranteed  ability  to  sue  the  tribe  under  the  Act.  As  a                                                               
compromise DOL  narrowly defined  the largest programs  and those                                                               
that are  subject to the Federal  Tort Claims Act. The  impact is                                                               
that future  transportation programs and grants  won't be covered                                                               
so  the legislation  will probably  require amendment  to address                                                               
situations that might arise.                                                                                                    
                                                                                                                                
SENATOR THERRIAULT said  he just wanted it on the  record if that                                                               
is in fact what is anticipated.                                                                                                 
                                                                                                                                
1:48:36 PM                                                                                                                    
CHAIR FRENCH, noting  that Mr. Putzier now had a  copy of the CS,                                                               
asked him  to take  a minute  to review  the language  before the                                                               
committee moves on.                                                                                                             
                                                                                                                                
SENATOR THERRIAULT  observed that the original  bill talked about                                                               
the "catch  line,which   is a  phrase he never heard  before, and                                                               
the CS substituted that phrase with "section heading."                                                                          
                                                                                                                                
CHAIR  FRENCH acknowledged  that he  too is  unfamiliar with  the                                                               
phrase  and  he  suspects  the   legislative  drafters  made  the                                                               
substitution.                                                                                                                   
                                                                                                                                
SENATOR THERRIAULT asked  if all the money comes  directly to the                                                               
tribes  or  if   it  flows  through  the  state   coffer  and  is                                                               
appropriated to the program.                                                                                                    
                                                                                                                                
1:50:15 PM                                                                                                                    
DOROTHY SHOCKLEY,  Staff to Senator  Kookesh, explained  that for                                                               
the most  part the money goes  directly to the tribes.  She noted                                                               
that she had  submitted a list showing the amount  of money going                                                               
to each community as well as the roads in their inventory.                                                                      
                                                                                                                                
SENATOR THERRIAULT  asked if the  tribal entities  apply directly                                                               
to the IRR Program for the money.                                                                                               
                                                                                                                                
MS.  SHOCKLEY replied  they apply  through the  Bureau of  Indian                                                               
Affairs (BIA).                                                                                                                  
                                                                                                                                
SENATOR  THERRIAULT remarked  he  knows that  someone is  keeping                                                               
track  of all  federal  stimulus dollars  and  he's mindful  that                                                               
there will be a leveling effort.                                                                                                
                                                                                                                                
CHAIR FRENCH asked Mr. Putzier if  he had further comments on the                                                               
CS.                                                                                                                             
                                                                                                                                
MR. PUTZIER expressed the view  that the final clause is awkward,                                                               
and he  would suggest inserting  "due to" before the  phrase "the                                                               
state's approving or accepting" on page 2, line 1.                                                                              
                                                                                                                                
1:53:07 PM                                                                                                                    
CHAIR FRENCH moved Conceptual Amendment 1.                                                                                      
                                                                                                                                
                     CONCEPTUAL AMENDMENT 1                                                                                 
                                                                                                                                
     Page 2, line 1:                                                                                                            
          Insert "due to" before the phrase "the state's                                                                        
     approving or accepting"                                                                                                    
                                                                                                                                
Finding no  objection, he announced  that Conceptual  Amendment 1                                                               
is adopted.                                                                                                                     
                                                                                                                                
CHAIR FRENCH  expressed small qualms  related to the  language on                                                               
page 1,  lines 12 and 13.  He consulted Mr. Putzier  and proposed                                                               
Amendment 2.                                                                                                                    
                                                                                                                                
                          AMENDMENT 2                                                                                       
                                                                                                                                
     Page 1, line 13:                                                                                                           
          Delete "occurs and" before the phrase "is not due                                                                     
     to the state's selection,"                                                                                                 
                                                                                                                                
MR. PUTZIER said it sounds reasonable.                                                                                          
                                                                                                                                
CHAIR FRENCH  found no objection  and announced that  Amendment 2                                                               
is adopted.                                                                                                                     
                                                                                                                                
1:55:08 PM                                                                                                                    
CHAIR FRENCH  closed public testimony  and asked the will  of the                                                               
committee.                                                                                                                      
                                                                                                                                
SENATOR WIELECHOWSKI moved to report CS  for SB 148, version E as                                                               
amended,  from  committee  with  individual  recommendations  and                                                               
attached fiscal note(s). There being  no objection, CSSB 148(JUD)                                                               
moved from the Senate Judiciary Standing Committee.