Legislature(2013 - 2014)CAPITOL 120

02/10/2014 01:00 PM House JUDICIARY


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
*+ HB 292 2014 REVISOR'S BILL TELECONFERENCED
Moved CSHB 292(JUD) Out of Committee
+ HB 47 INJUNCTION SECURITY: INDUSTRIAL OPERATION TELECONFERENCED
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
        HB  47-INJUNCTION SECURITY: INDUSTRIAL OPERATION                                                                    
                                                                                                                                
1:24:40 PM                                                                                                                  
                                                                                                                                
CHAIR KELLER announced  that the next order of  business would be                                                               
HOUSE  BILL  NO.  47,  "An   Act  requiring  a  party  seeking  a                                                               
restraining order,  preliminary injunction, or order  vacating or                                                               
staying  the  operation  of  a  permit  affecting  an  industrial                                                               
operation  to give  security in  the amount  the court  considers                                                               
proper for costs incurred and  damages suffered if the industrial                                                               
operation is wrongfully enjoined or restrained."                                                                                
                                                                                                                                
                                                                                                                              
1:24:58 PM                                                                                                                  
                                                                                                                                
REPRESENTATIVE LYNN moved to  adopt proposed committee substitute                                                               
for HB 47, Version 28-LS0072\N,  Bullock/Wallace, 1/10/14, as the                                                               
working document.                                                                                                               
                                                                                                                                
REPRESENTATIVE GRUENBERG objected for  purposes of discussion and                                                               
inquired as to the difference in Version N.                                                                                     
                                                                                                                                
1:25:54 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE ERIC FEIGE, Alaska  State Legislature, speaking as                                                               
one  of  the prime  sponsors  of  HB  47,  said the  only  change                                                               
embodied in Version  N is the addition of subsection  (d) on page                                                               
2.     The  commissioner  of  the   Department  of  Environmental                                                               
Conservation  (DEC) was  very concerned  that under  the original                                                               
language of HB  47 the federal permitting programs  for which the                                                               
state has primacy  could be adversely affected in  that the state                                                               
could   be   open   to  the   possibility   of   having   primacy                                                               
administratively retracted  by the federal  government.   The new                                                               
language, he  explained, exempts the federal  permitting programs                                                               
that  the  state  administers  and over  which  it  has  primacy.                                                               
Therefore, there is not even a  hint that this bill would prevent                                                               
access to the courts by other parties involved in those permits.                                                                
                                                                                                                                
1:28:04 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE GRUENBERG  pointed out  that the language  on page                                                               
1, line  11, of  HB 47  reads, "... including  an amount  for the                                                               
payment of wages ..." but was  changed in Version N to read, "The                                                               
court shall consider  the amount of wages,"  The  new language in                                                               
Version   N  allows   the  court   more   discretion,  which   he                                                               
characterized as a good amendment.                                                                                            
                                                                                                                                
REPRESENTATIVE FEIGE agreed the  aforementioned was also a change                                                               
and in further  response to Representative Gruenberg  said he and                                                               
his staff were not aware of any other changes.                                                                                  
                                                                                                                                
1:29:35 PM                                                                                                                    
                                                                                                                              
REPRESENTATIVE GRUENBER withdrew his objection.                                                                                 
                                                                                                                                
1:29:41 PM                                                                                                                    
                                                                                                                                
CHAIR  KELLER  then  objected  for  purposes  of  discussion  and                                                               
related his understanding that the language is new in Version N.                                                                
                                                                                                                                
REPRESENTATIVE FEIGE clarified that the  language on page 2, line                                                               
6-13,  is new  language, which  pertains specifically  to federal                                                               
permitting   programs  that   are  administered   by  the   state                                                               
government.                                                                                                                     
                                                                                                                                
1:30:56 PM                                                                                                                    
                                                                                                                                
CHAIR  KELLER removed  his  objection.   There  being no  further                                                               
objection, Version N was before the committee.                                                                                  
                                                                                                                                
1:31:43 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  FEIGE,  continuing  his presentation  of  HB  47,                                                               
informed the committee that,                                                                                                    
                                                                                                                                
     In the past  several years there have  been cases where                                                                    
     courts  have   issued  injunctions  or   stays  against                                                                    
     companies  engaged  in   the  development  of  resource                                                                    
     extraction and  other large industrial  operations that                                                                    
     had been  legally permitted.   These  legally permitted                                                                    
     projects  now   have  to  endure  the   high  costs  of                                                                    
     uncertainty and  delay.  The  discovery phase  in these                                                                    
     types  of  cases  can cost  hundreds  of  thousands  of                                                                    
     dollars   to  the   state  as   well  as   the  project                                                                    
     proponents.   House Bill 47 does  not condone "sloppily                                                                    
     written  or  wrongfully  issued permits"  as  has  been                                                                    
     described  by  some  opponents  of  the  bill.    If  a                                                                    
     permittee  is violating  the terms  of the  permit then                                                                    
     the  issuing departments  of the  state should  step in                                                                    
     and either  get the situation rectified  or temporarily                                                                    
     stop the project  until it comes into  compliance.  The                                                                    
     state has laid out  a rigorous science based permitting                                                                    
     system   to  allow   responsible  development   of  our                                                                    
     resources  for the  benefit of  all  Alaskans.   Public                                                                    
     involvement   and  input   is  encouraged   through  an                                                                    
     established  public  process.   Too  often,  once  this                                                                    
     process has been completed and  the permits are issued,                                                                    
     opponents   of  the   project   file  public   interest                                                                    
     litigation   seeking   an   injunction   or   a   stay.                                                                    
     Ultimately, those  who feel the most  immediate impacts                                                                    
     of  these   injunctions  are  the  workers   and  their                                                                    
     families because  workers are laid off,  both union and                                                                    
     non-union.                                                                                                                 
                                                                                                                                
1:33:21 PM                                                                                                                    
                                                                                                                                
     House  Bill  47 was  filed  with  intent to  level  the                                                                    
     playing field  and put  those who  file these  suits on                                                                    
     notice  that  they  too have  consequences  to  contend                                                                    
     with.   Some people  have pointed to  the title  of the                                                                    
     bill which  uses the  words "An  Act requiring  a party                                                                    
     ..."   The  requirement for  security is  already there                                                                    
     embedded in  Alaska Civil  Rule 65(c).   House  Bill 47                                                                    
     parallels  the   requirements  of  Rule   65(c),  which                                                                    
     states,  "...  No   restraining  order  or  preliminary                                                                    
     injunction  shall  issue  except  upon  the  giving  of                                                                    
     security by  the applicant,  in such  sum as  the court                                                                    
     deems  proper,  for  the  payment  of  such  costs  and                                                                    
     damages as  may be  incurred or  suffered by  any party                                                                    
     who  is  found  to  have been  wrongfully  enjoined  or                                                                    
     restrained. ..."   House  Bill 47  was written  to work                                                                    
     with Rule 65(c), not change  it.  The court already has                                                                    
     the   power   and   authority  to   require   a   bond,                                                                    
     unfortunately,  in most  cases they  don't require  it.                                                                    
     This  legislation directs  the court,  when considering                                                                    
     the bond  amount, to take  into account costs  that may                                                                    
     be  incurred   and  damages   that  may   be  suffered,                                                                    
     including  an  amount  for the  payment  of  wages  and                                                                    
     benefits    for    employees,   sub-contractors,    and                                                                    
     contractors.   It  does not  set  a bond  amount.   The                                                                    
     court  continues  to  have full  discretion  and  could                                                                    
     still  ultimately decide  to not  require a  bond.   In                                                                    
     this  legislation, industrial  operation is  defined to                                                                    
     include a construction, energy  or timber activity, and                                                                    
     oil,  gas  and   mineral  exploration  development  and                                                                    
     production.   Historically,  we have  not seen  a large                                                                    
     number  of these  types of  injunctions in  state court                                                                    
     for  two  reasons:  most lawsuits  today  have  involve                                                                    
     federal  permits, and  in  talking  with lawyers  about                                                                    
     this issue, found that many  of these cases are settled                                                                    
     out  of court  in an  effort  to avoid  costs and  work                                                                    
     delays.                                                                                                                    
                                                                                                                                
1:35:24 PM                                                                                                                    
                                                                                                                                
     An  example of  this type  of  court case  would be  an                                                                    
     injunction filed  on the Port Mackenzie  Rail Extension                                                                    
     just as they were  starting to commence construction in                                                                    
     the Fall  of 2012.   A lawsuit  filed in  federal court                                                                    
     which ordered  a Stop  Work Order  on October  1, 2012,                                                                    
     eventually, later  that Fall on November  28, 2012 that                                                                    
     same  federal court  lifted  the order.    But for  two                                                                    
     months almost two  hundred people were put  out of work                                                                    
     and unable to  feed their families.   Here in Southeast                                                                    
     Alaska,  fairly  recently,  the  City  and  Borough  of                                                                    
     Juneau  permitted a  cruise ship  dock expansion.   The                                                                    
     Juneau  Assembly, last  month,  approved the  contract.                                                                    
     It  has  already  had  a group  file  for  a  Temporary                                                                    
     Restraining Order to keep the  city from working on the                                                                    
     project.   Work is  not even  scheduled to  begin until                                                                    
     2015.   Of  course,  you  are all  aware  that we  have                                                                    
     fairly large  projects potentially on our  horizon.  An                                                                    
     effort  to build  an instate  gas  line as  well as  an                                                                    
     export  line  would  involve a  whole  series  of  mega                                                                    
     projects that could potentially  be affected by someone                                                                    
     wanting to file  an injunction.  During  the interim we                                                                    
     continued to work with the  administration to deal with                                                                    
     some  concerns  that  they  had  with  respect  to  the                                                                    
     unintended   consequences   centering  on   the   state                                                                    
     primacy,  i.e., those  permits  related  to clean  air,                                                                    
     clean water  and surface coal.   I've detailed  some of                                                                    
     the  new language  in Version  N of  the CS.   The  new                                                                    
     language  specifically  exempts  those  federal  permit                                                                    
     programs  that the  state administers.    It does  not,                                                                    
     however, do anything to the  over one hundred different                                                                    
     state  permits  that  the state  currently  has  permit                                                                    
     authorization authority  for.  The language  will still                                                                    
     apply to  those and  a list of  those permits  has been                                                                    
     included in your packet.                                                                                                   
                                                                                                                                
REPRESENTATIVE   FEIGER   advised   the  committee   there   were                                                               
representatives  in  the  room from  the  Department  of  Natural                                                               
Resources, Department  of Environmental Conservation,  the Alaska                                                               
Court System, Department of Law,  and Legislative Legal available                                                               
for questions, and also a number of people online to testify.                                                                   
                                                                                                                                
1:38:37 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE LEDOUX inquired  as to what was  the percentage of                                                               
injunctions filed in the state versus federal court.                                                                            
                                                                                                                                
REPRESENTATIVE  FEIGE maintained  that  most  of the  injunctions                                                               
brought  forth are  in federal  court.   In  further response  to                                                               
Representative LeDoux,  Representative Feige affirmed that  HB 47                                                               
would not impact federal courts.                                                                                                
                                                                                                                                
REPRESENTATIVE  LEDOUX inquired  as to  how much  assistance this                                                               
bill could provide projects.                                                                                                    
                                                                                                                                
1:39:45 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  FEIGE  clarified  that  HB  47  does  not  impact                                                               
federal courts  as it is not  in the state's arena  of authority.                                                               
However,  the  possibility  exists  that  plaintiffs  could  seek                                                               
injunctions   under   state  court,   which   he   opined  is   a                                                               
vulnerability  within  the  state's legal  structure.    Although                                                               
Civil  Rule 65(c)  already  requires  security, the  overwhelming                                                               
majority of  judges do not  appear willing to require  parties to                                                               
post bonds.  He said he did  not know whether [the actions of the                                                               
judges] were the  intent of the legislature or the  intent of the                                                               
original rule.   If HB  47 passes,  the legislation would  send a                                                               
significant message  to the third  branch of government  that the                                                               
legislature  encourages  judges  to  look  closely  at  requiring                                                               
security bonds,  especially in  cases like  this.   Regarding the                                                               
total number of  court cases like this, he deferred  to the court                                                               
system.                                                                                                                         
                                                                                                                                
1:42:04 PM                                                                                                                    
                                                                                                                                
CHAIR KELLER advised  the committee it was not  his intention for                                                               
the committee to vote  on HB 47 today, as it  had just received a                                                               
memorandum from Legal Services.                                                                                                 
                                                                                                                                
1:42:19 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE GRUENBERG  opined that  the current language  is a                                                               
definite improvement and asked Representative  Feige if his staff                                                               
would make a copy of his presentation for his review.                                                                           
                                                                                                                                
REPRESENTATIVE FEIGE agreed to do so.                                                                                           
                                                                                                                                
1:43:38 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE MILLETT  noted her  appreciation for HB  47, which                                                               
she  felt  was a  long  time  in coming  as  Alaska  must make  a                                                               
statement  about frivolous  lawsuits  and actions  taken to  slow                                                               
down projects and cause projects to  be more expensive.  She said                                                               
Alaskans  are  not  taking  these   actions  rather  it  is  non-                                                               
government organizations (NGO) from  out-of-state that have found                                                               
a beautiful  picturesque place  like Alaska and  use it  as their                                                               
biggest fundraising tool in the  Lower 48.  Representative Millet                                                               
related that she  is offended that Alaskans are  being treated in                                                               
this manner.                                                                                                                    
                                                                                                                                
1:44:42 PM                                                                                                                    
                                                                                                                                
CHAIR  KELLER  advised the  committee  that  Friday's meeting  is                                                               
scheduled for bills  previously heard, of which  could include HB
47.  He then turned to public testimony.                                                                                        
                                                                                                                                
1:46:51 PM                                                                                                                    
                                                                                                                                
NANCY  MEADE, General  Counsel, Administrative  Staff, Office  of                                                               
the Administrative Director, Alaska  Court System, in speaking to                                                               
Representative    LeDoux's    earlier    question,    preliminary                                                               
injunctions  are  tracked,  but   there  are  not  statistics  on                                                               
preliminary injunctions against industrial  operations as that is                                                               
not a term  used in its data base yet.   Anecdotally, she related                                                               
that over  the last six or  seven years there have  been possibly                                                               
two  or  three  cases  that  would fall  into  what  the  sponsor                                                               
intended to cover with  HB 47.  This bill is  similar to CR 65(c)                                                               
as  the courts  do  have authority  to set  the  security.   Many                                                               
times,  she  explained,  parties  will stipulate  the  amount  of                                                               
security for  various actions for preliminary  injunction or TROs                                                               
and  for the  most part  judges accept  those stipulations.   The                                                               
security  is intended  to cover  the costs  and damages  that the                                                               
enjoined  party might  suffer if  the injunction  were wrongfully                                                               
granted.  The court holds the  security until the end of the case                                                               
and  if the  enjoined party  should not  have been  enjoined, the                                                               
security can  be used  to pay  the costs  and damages  that party                                                               
suffered.                                                                                                                       
                                                                                                                                
1:48:40 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE GRUENBERG  emphasized the  need for  the committee                                                               
to  carefully  understand the  language  of  CR  65 in  order  to                                                               
understand  the legal  issues involved  in HB  47, which  is what                                                               
will, if  anything, be changed by  HB 47.  He  then asked whether                                                               
the trial court has broad discretion in issuing injunctions.                                                                    
                                                                                                                                
MS. MEADE advised  the trial court has discretion  whether or not                                                               
to  grant a  motion  for preliminary  injunction,  but there  are                                                               
specific legal tests it must apply.                                                                                             
                                                                                                                                
REPRESENTATIVE GRUENBERG requested  Ms. Meade briefly enumerating                                                               
what the list of factors.                                                                                                       
                                                                                                                                
MS. MEADE expressed concern she  would misstate them as they were                                                               
not written before her.                                                                                                         
                                                                                                                                
CHAIR KELLER  requested Ms.  Meade come  prepared to  discuss the                                                               
legal tests on Friday.                                                                                                          
                                                                                                                                
1:51:04 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE GRUENBERG remarked that he  was not sure the court                                                               
system is  the appropriate  branch to  answer that  question, and                                                               
requested  that   staff  from  Legislative  Legal   and  Research                                                               
Services be available  on Friday.  In  response to Representative                                                               
Lynn, Representative  Gruenberg explained  that CR 65  covers the                                                               
following  three   types  of  injunctions,  with   the  specified                                                               
meaning:  temporary   injunction  is   attending  a   hearing;  a                                                               
preliminary injunction  is after a  hearing pending trial,  and a                                                               
permanent injunction is covered by  the rule of procedure.  There                                                               
are also statutes on the  subject, which he requested be included                                                               
in the committee's packet.                                                                                                      
                                                                                                                                
1:52:20 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE LEDOUX  related her  understanding that  for state                                                               
permits if  a party desired  a TRO  against the state,  the party                                                               
would  be  against  the  state.   For  federal  permits  and  the                                                               
category  of  permits  for  which   the  state  has  primacy,  is                                                               
basically the federal  program.  However, a party  cannot sue the                                                               
state in federal court.  She  then explored whether a party could                                                               
simply  sue the  industrial operation  in federal  court and  not                                                               
include the state as a party.                                                                                                   
                                                                                                                                
MS.  MEADE  related  her  understanding   that  HB  47  addresses                                                               
injunctions  filed against  the industrial  operation itself  and                                                               
not against the  state as the defending party  to the injunction.                                                               
The intent,  she opined, was to  cover lawsuits in which  a group                                                               
or  individual  wishes  to stop  the  industrial  operation  from                                                               
proceeding  and that  group itself  is the  defendant/respondent,                                                               
and thus is enjoined.  She  specified that she had not understood                                                               
that the  state would be  a party  to those actions,  which could                                                               
take place in state or federal court.                                                                                           
                                                                                                                                
REPRESENTATIVE  LEDOUX surmised  then that  any lawsuit  with any                                                               
federal element whatsoever could be brought in federal court.                                                                   
                                                                                                                                
MS. MEADE stated her agreement with Representative LeDoux.                                                                      
                                                                                                                                
REPRESENTATIVE GRUENBERG  cautioned the committee not  to ask the                                                               
court  system as  this  may  be an  issue  that ultimately  comes                                                               
before it.                                                                                                                      
                                                                                                                                
1:56:06 PM                                                                                                                    
                                                                                                                                
MAYNARD  TAPP, Founder  and  Managing  Member, Hawk  Consultants,                                                               
LLC, Member, The Alliance, opined  that delaying Alaskan projects                                                               
hurts The Alliance members, and  therefore hurts workers that are                                                               
the  employees   of  The  Alliance.     For  example,   a  recent                                                               
cancelation of a project caused 70  people to lose their job in 1                                                               
company.  Those  70 people earned $60,000 -  $80,000 annually and                                                               
the  loss of  wages  has  a major  impact  on local  communities.                                                               
Currently, there  are approximately 180  jobs at risk  on another                                                               
project  in rural  Alaska.   The impact  of those  lost wages  on                                                               
individuals as well as most  communities would be staggering.  If                                                               
a  party  desires   to  delay  a  project,  it   should  be  held                                                               
accountable  for the  financial harm  caused by  its actions,  he                                                               
opined.                                                                                                                         
                                                                                                                                
1:58:16 PM                                                                                                                  
                                                                                                                                
MR. TAPP, in  response to Representative Gruenberg  advised he is                                                               
one of  the principals  for Hawk  Consultants, LLC,  which leases                                                               
personnel to oil companies.                                                                                                     
                                                                                                                                
1:59:03 PM                                                                                                                    
                                                                                                                                
MICHAEL JUNGREIS,  Director, Resource Development  Council (RDC),                                                               
clarified that  although he is  a partner with Davis,  Wright and                                                               
Tremaine, LLP,  he is testifying  on his  own behalf and  that of                                                               
the RDC.   He related  that the  RDC favors this  legislation and                                                               
emphasized the injunction power is  the most powerful tool of the                                                               
court as it has the power  to stop any activity from occurring in                                                               
the state.   In  a preliminary  injunction, the  court frequently                                                               
has only relatively sketchy factual  materials available to it in                                                               
order to make  a determination.  A large  scale enterprise, which                                                               
may  be employing  scores  of hundreds  of  people and  deploying                                                               
millions  of  dollars into  a  major  economic activity  in  this                                                               
state, can be brought to a  complete halt by the power judges can                                                               
impose.  He  related his experience that judges  are reluctant to                                                               
impose the  bonding requirement the  law allows.    Therefore, he                                                               
opined,  it is  important for  the legislature  to make  it clear                                                               
that  judges must  consider the  impact the  decisions they  make                                                               
have on  individuals, the economy,  and on the  economic activity                                                               
they can stop.                                                                                                                  
                                                                                                                                
2:01:56 PM                                                                                                                    
                                                                                                                                
MR.  JUNGREIS  explained  that   the  standard  for  granting  an                                                               
injunction, which is  in State Division of  Elections v. Metcalf,                                                             
(Alaska  2005) and  has been  cited since  2005, is  that if  the                                                               
threatened injury  is irreparable, meaning something  that cannot                                                               
be brought  back as  in chopping  down a forest  or filling  in a                                                               
lake, then  all the  plaintiff must  do is  raise "a  serious and                                                               
substantial question" that is not  frivolous or obviously without                                                               
merit.  The bottom line is  that a plaintiff who claims a serious                                                               
enough  injury does  not  have  to persuade  the  judge that  the                                                               
plaintiff is going  to win.  In fact, the  judge may conclude the                                                               
plaintiff  is probably  going  to  lose, but  when  it  is not  a                                                               
frivolous case a preliminary injunction  must be granted, even on                                                               
partial knowledge.   He opined that when judges have  to grant an                                                               
injunction, it  is critical that  the injunction only  be granted                                                               
with protection  for the enterprises  that are the life  blood of                                                               
the state.                                                                                                                      
                                                                                                                                
2:03:49 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE LEDOUX asked  if the standards for  granting a TRO                                                               
were less than for a preliminary injunction.                                                                                    
                                                                                                                                
MR.  JUNGREIS, noting  that he  had been  practicing law  in this                                                               
state for a while and had appeared  in a number of cases in which                                                               
both   preliminary  and   temporary   injunctions  were   issued,                                                               
responded he was not certain but  the TRO, which by its terms can                                                               
only  be issued  for a  10  day period,  also requires  security.                                                               
Information upon  which a TRO  is granted frequently  consists of                                                               
an affidavit  or two and  rarely is there  live testimony.   As a                                                               
result,  there are  some judges  who are  extremely reluctant  to                                                               
grant TROs  unless there  is something terrible  going on  like a                                                               
child who  is about to  be removed from  the state or  someone is                                                               
about  to  be taken  off  life  support.   This  legislation,  he                                                               
opined,  would  apply  to  a  TRO  in  an  industrial  permitting                                                               
situation.                                                                                                                      
                                                                                                                                
2:05:34 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  LEDOUX  related  her  understanding  that  for  a                                                               
preliminary  injunction  a party  has  to  show a  likelihood  of                                                               
success on  the merits as  opposed to  simply showing that  it is                                                               
not a frivolous  lawsuit.  However, she said she  was not certain                                                               
that a party had to show the  likelihood of success with a TRO as                                                               
it is maybe a more lax standard.                                                                                                
                                                                                                                                
MR.  JUNGREIS  conveyed the  current  standard  is in  two  parts                                                               
depending upon the severity of  injury that the plaintiff claims.                                                               
If the  plaintiff's injury is not  claimed to be all  that severe                                                               
or if  it is claimed to  be less than irreparable,  the plaintiff                                                               
must present a  clear showing of probable success  on the merits.                                                               
In  that instance,  the judge  would be  required to  believe the                                                               
plaintiff was going to win  before issuing the injunction.  There                                                               
is a  "lessened" standard for which  the harm that is  alleged is                                                               
of a greater amount.  If  a plaintiff is claiming the neighbor is                                                               
going  to block  the  driveway,  the plaintiff  must  show it  is                                                               
probably going  to win.   If  a plaintiff  asserts the  injury is                                                               
irreparable,  such  as filling  in  a  lake  or chopping  down  a                                                               
forest, the  plaintiff is not  required to  show it is  likely to                                                               
win, but rather must show the case is not frivolous.                                                                            
                                                                                                                                
2:08:28 PM                                                                                                                    
                                                                                                                                
MR. JUNGREIS, in response  to Representative Gruenberg; suggested                                                               
the committee  [consult] the following cases:  State, Division of                                                             
Elections  v. Metcalf,  110  P.3d 976  (Alaska  2005); Misyura  v                                                           
Misyura, 244  P.3d 519 (Alaska  2010).  In further  response, Mr.                                                             
Jungreis offered  that the court  is considering  the seriousness                                                               
of  the injury,  whether the  defendant can  be protected  if the                                                               
[injunction] is  granted, and  whether the  court can  be certain                                                               
the defendant is not injured if  the injunction turns out to have                                                               
been granted  in error.   The aforementioned,  he opined,  is the                                                               
purpose of HB 47.  The other issue  is how good of a case has the                                                               
plaintiff  presented to  require  an injunction.   Although  it's                                                               
likely  the duration  is  an  element that  would  be taken  into                                                               
account in  assessing all of the  factors, he was not  certain it                                                               
would be a separate factor.                                                                                                     
                                                                                                                                
2:12:22 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  GRUENBERG,  questioned  whether  the  legislation                                                               
could simply  provide this  as a factor  to be  considered rather                                                               
than  specifying  out   hard  and  fast  rules   that  may  cause                                                               
constitutional problems.                                                                                                        
                                                                                                                                
MR. JUNGREIS  said that  the court has  to consider  the factors,                                                               
but [the ultimate  decision] is for the court to  determine.  The                                                               
court  must  be  able  to  show  it  reviewed  every  factor  and                                                               
understood those  were critical factors  that must be  taken into                                                               
consideration,  although the  factors do  not absolutely  control                                                               
the  decision.   This  legislation does  not  attempt to  specify                                                               
dollar  for  dollar exactly  how  the  court must  determine  the                                                               
issue, he stated.                                                                                                               
                                                                                                                                
2:14:45 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  LEDOUX  asked whether  the  denial  of a  TRO  or                                                               
preliminary injunction, or the amount  of bond the court requires                                                               
to  be  posted  is  appealable.   If  it  is  appealable,  is  it                                                               
appealable on an expedited basis, she asked.                                                                                    
                                                                                                                                
REPRESENTATIVE  GRUENBERG answered  that  [denial  and amount  of                                                               
bond is absolutely appealable].                                                                                                 
                                                                                                                                
MR. JUNGREIS agreed with  Representative Gruenberg that certainly                                                               
in every  legal system, the failure  to grant or the  granting of                                                               
injunctive relief all give rise to an immediate right to appeal.                                                                
                                                                                                                                
REPRESENTATIVE  GRUENBERG  advised  the technical  term  for  the                                                               
process would be "Petition for Review."                                                                                         
                                                                                                                                
MR. JUNGREIS  answered that he was  not certain of that  term but                                                               
offered  that there  is  no question  a party  has  the right  to                                                               
Petition  for Review  for any  interlocutory order.   Clearly,  a                                                               
party has  a right to  appeal, but  he was uncertain  whether the                                                               
court must hear the appeal.                                                                                                     
                                                                                                                                
MS. MEADE  agreed with Representative  Gruenberg that  the denial                                                               
or  granting of  the order  would be  a Petition  for Review  and                                                               
would definitely be  allowable by a court above  the trial level.                                                               
In  further  response  to  Representative  Gruenberg,  Ms.  Meade                                                               
confirmed injunctions must  be brought in the  superior court and                                                               
not the  district court.  If  the decision is appealed,  it first                                                               
goes to a single justice, and  then can be reviewed by the entire                                                               
court.   Appeals,  she clarified,  are not  expedited per  se and                                                               
they  are  not  in  the  rule  regarding  which  proceedings  are                                                               
automatically expedited.   However,  Petitions for Review  can be                                                               
handled faster than an appeal on a full case, she pointed out.                                                                  
                                                                                                                                
2:18:29 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE LEDOUX  noted her  understanding whether or  not a                                                               
court heard a Petition for Review was discretionary.                                                                            
                                                                                                                                
MS. MEADE agreed with Representative  LeDoux.  She further agreed                                                               
with Representative LeDoux  that a party has the right  to file a                                                               
[Petition for  Review], but that  doesn't mean the court  will do                                                               
anything about it.                                                                                                              
                                                                                                                                
REPRESENTATIVE GRUENBERG provided that if  that is the case, that                                                               
unless and until  the court issued a superseding  order on appeal                                                               
the trial court's original order would remain in effect.                                                                        
                                                                                                                                
MS. MEADE agreed with Representative Gruenberg.                                                                                 
                                                                                                                                
2:19:34 PM                                                                                                                    
                                                                                                                                
MS.  MEADE  directed  attention  to  the  following  language  in                                                               
Version  N on  page 1,  line 11:  "The court  shall consider  the                                                               
amount  of  wages and  benefits  for  employees and  payments  to                                                               
contractors and  subcontractor ..."   She  suggested it  might be                                                               
beneficial to  use the following  language: "Upon the  request of                                                               
any party  and when  that party  presents credible  evidence ..."                                                               
because if  the industrial  operation does  not want  to disclose                                                               
records about its  wages or its contracts  or subcontractors, the                                                               
court  would   not  have   evidence  to   consider.     With  the                                                               
aforementioned suggested language the  court has to consider this                                                               
because otherwise it  would not have the means  or information to                                                               
consider those factors.  The  sponsor, she related, was receptive                                                               
to including such language.                                                                                                     
                                                                                                                                
2:20:46 PM                                                                                                                    
                                                                                                                                
CHAIR KELLER directed  the sponsor to be prepared  on Friday with                                                               
language for discussion on that matter.                                                                                         
                                                                                                                                
MS. MEADE informed  the committee the language  would be provided                                                               
to the committee.                                                                                                               
                                                                                                                                
2:21:35 PM                                                                                                                    
                                                                                                                                
MIKE  PRAX   state  that  the  [suggested   language]  change  to                                                               
"something the  court shall consider"  rather than just  "do," is                                                               
needed.   This legislation,  he opined, is  necessary as  it does                                                               
appear  that injunctions  are granted  too easily.   Furthermore,                                                               
the committee  should know how often  injunctions are overturned,                                                               
he opined.   He  related that  he followed  the Healy  Clean Coal                                                               
Project  for which  tens of  millions of  dollars a  year to  the                                                               
members of  Golden Valley [Electric Association  GVEA] were lost,                                                               
which he  acknowledged would  not be  considered.   Objections to                                                               
Healy Clean  Coal, he opined,  were without merit from  the start                                                               
and it appeared  the injunction strategy was to run  the costs up                                                               
so GVEA would give up on  the project regardless of the merits of                                                               
the  case.   He further  opined that  the aforementioned  happens                                                               
often  as  it  is  a strategy  attorneys  apply  sometimes.  This                                                               
legislation  is needed  to  maintain equity,  which  should be  a                                                               
primary goal  and focus of the  committee.  Mr. Prax  said he had                                                               
not  given thought  to Section  1(d), which  will not  require it                                                               
under  cases in  which  the  state is  acting  with primacy  over                                                               
federal regulations.  He encouraged  the committee to contact the                                                               
United States  Environmental Protection  Agency (EPA)  or someone                                                               
in the federal government to  obtain their opinions directly.  He                                                               
proffered that  State agencies are  often overly  conservative in                                                               
their interpretation of these laws  and too concerned, therefore,                                                               
about  losing primacy.   He  was not  sure that  the EPA  and the                                                               
Department of Natural Resources  would object to this legislation                                                               
to the  degree that it would  withdraw primacy.  The  fact that a                                                               
party  has  issued  a  court action,  by  itself,  discourages  a                                                               
company from  moving forward,  and thus  he did  not see  harm in                                                               
maintaining equity.                                                                                                             
                                                                                                                                
2:26:31 PM                                                                                                                    
                                                                                                                                
CHAIR  KELLER   said  he  identified  with   Mr.  Prax's  remarks                                                               
regarding the state  needing to be overly cautious  with what the                                                               
federal  programs require,  and he  advised the  legislature must                                                               
stay on top of it at all times.                                                                                                 
                                                                                                                                
REPRESENTATIVE GRUENBERG expressed the  need to consider the high                                                               
cost of litigation  and how the party with deep  pockets can make                                                               
it difficult for the  other party to be heard.   If the desire is                                                               
for equity,  he suggested the  committee consider what it  can do                                                               
to ensure the law is not misused.                                                                                               
                                                                                                                                
2:28:29 PM                                                                                                                    
                                                                                                                                
MR.  JUNGREIS  remarked  that he  and  the  Resource  Development                                                               
Council believe  something on  this order  is critical  to ensure                                                               
that the  projects, which are the  life blood of this  state, are                                                               
protected from this particular type of disruption.                                                                              
                                                                                                                                
2:29:24 PM                                                                                                                    
                                                                                                                                
ANDY ROGERS,  Deputy Director, Alaska State  Chamber of Commerce,                                                               
informed the  committee that the  Alaska State  Chamber (Chamber)                                                               
is a  member organization made  up of companies across  the state                                                               
and these  types of injunctions  are an ever-occurring  issue for                                                               
the Chamber.   The  business community  supports passage  of this                                                               
bill  and   when  legislation  receives  universal   support  and                                                               
agreement from  across the  state and across  a broad  section of                                                               
industries,  it carries  weight.   The Chamber  will continue  to                                                               
support the core concepts of  this legislation.  The Chamber went                                                               
on record  on behalf  of Alaska's  businesses and  encouraged the                                                               
committee to pass this legislation out of committee.                                                                            
                                                                                                                                
2:31:23 PM                                                                                                                    
                                                                                                                                
CHAIR KELLER announced he would leave public testimony open.                                                                    
                                                                                                                                
2:32:11 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  GRUENBERG explained  there is  a body  of law  on                                                               
injunctions and  the committee should review  the background upon                                                               
which this bill is presented.                                                                                                   
                                                                                                                                
CHAIR KELLER announced  his intent to take a vote  on the bill on                                                               
Friday.  [HB 47 was held over.]                                                                                                 
                                                                                                                                

Document Name Date/Time Subjects
HB 292 ver. C.pdf HJUD 2/10/2014 1:00:00 PM
HB 292
HB 292 Sectional Analysis.pdf HJUD 2/10/2014 1:00:00 PM
HB 292
HB 292 Proposed Amendment C.1.pdf HJUD 2/10/2014 1:00:00 PM
HB 292
HB 292 Fiscal Note~Law.pdf HJUD 2/10/2014 1:00:00 PM
HB 292
HB 47 Sponsor Statement 2014.pdf HJUD 2/10/2014 1:00:00 PM
HB 47
HB0047A.pdf HJUD 1/30/2013 1:00:00 PM
HJUD 2/10/2014 1:00:00 PM
HB 47
CSHB47 ver. N Draft.pdf HJUD 2/10/2014 1:00:00 PM
HB 47
CSHB47 ver. N~Explanation of Changes.pdf HJUD 2/10/2014 1:00:00 PM
HB 47
HB 47 Testimony List.pdf HJUD 2/10/2014 1:00:00 PM
HB 47
HB 47 Fiscal Note~Court System 2014.pdf HJUD 2/10/2014 1:00:00 PM
HB 47
HB 47 Fiscal Note~DEC Air Quality 2014.pdf HJUD 2/10/2014 1:00:00 PM
HB 47
HB 47 Fiscal Note~DEC Water Quality 2014.pdf HJUD 2/10/2014 1:00:00 PM
HB 47
HB 47 Fiscal Note~DNR 2014.pdf HJUD 2/10/2014 1:00:00 PM
HB 47
HB 47 Fiscal Note~Law 2014.pdf HJUD 2/10/2014 1:00:00 PM
HB 47
AK Chamber of Commerce Support.pdf HJUD 1/30/2013 1:00:00 PM
HJUD 2/10/2014 1:00:00 PM
HB 47
HB 47 Support Document~DEC Authorizations & Permits.pdf HJUD 2/10/2014 1:00:00 PM
HB 47
HB 47 Support Document~DNR Permits.pdf HJUD 2/10/2014 1:00:00 PM
HB 47
HB 47 Support Document~Leg. Legal Memo.pdf HJUD 2/10/2014 1:00:00 PM
HB 47