Legislature(2013 - 2014)BELTZ 105 (TSBldg)

03/24/2014 01:30 PM Senate JUDICIARY


Download Mp3. <- Right click and save file as

* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
*+ SJR 25 EXXON VALDEZ OIL SPILL DAMAGES/REOPENER TELECONFERENCED
Heard & Held
+ HB 47 INJUNCTION SECURITY: INDUSTRIAL OPERATION TELECONFERENCED
Heard & Held
+ HB 218 SENTENCING;AGGRAVATOR/DEPORTATION STATUS TELECONFERENCED
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
        HB 47-INJUNCTION SECURITY: INDUSTRIAL OPERATION                                                                     
                                                                                                                                
2:48:12 PM                                                                                                                    
CHAIR  COGHILL announced  the  consideration of  HB  47. "An  Act                                                               
requiring  a  party  seeking  a  restraining  order,  preliminary                                                               
injunction,  or  order  vacating  or  staying  the  operation  of                                                               
certain  permits  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." He  said it  was the  first                                                               
hearing of the bill. [CSHB 47(JUD) was before the committee.]                                                                   
                                                                                                                                
2:48:31 PM                                                                                                                    
REPRESENTATIVE  ERIC  FEIGE,  Alaska State  Legislature,  Juneau,                                                               
Alaska,  introduced  HB  47 speaking  to  the  following  sponsor                                                               
statement: [Original punctuations provided.]                                                                                    
                                                                                                                                
     Under current law  the cost to bring  a lawsuit against                                                                    
     a legally  permitted project is  in effect  zero. There                                                                    
     is very  little risk in  bringing a suit. All  the risk                                                                    
     is borne  by the defendants. These  actions do shutdown                                                                    
     projects  at  significant  costs to  working  Alaskans,                                                                    
     businesses  and  the state  treasury.  HB  47 seeks  to                                                                    
     remedy the situation by leveling the playing field.                                                                        
     HB 47  parallels the requirements of  Alaska Civil Rule                                                                    
     65(c). As written, 65(c)  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".                                                                                                               
                                                                                                                                
     HB  47 closely  mirrors  the language  of Alaska  Civil                                                                    
     Rule  65(c)  in  order  to clarify  that  the  proposed                                                                    
     statute  would  not  change   the  court  rule.  Judges                                                                    
     already have  the ability to require  security. In most                                                                    
     instances,  they  are  not  doing   so.  HB  47  simply                                                                    
     requests that part of  the court's deliberation process                                                                    
     should  include  payment  of  wages  and  benefits  for                                                                    
     employees   &   payments   to  contractors   and   sub-                                                                    
     contractors of  the industrial operation that  is being                                                                    
     shut  down.  The  party asking  the  court  to  require                                                                    
     security  must  present  evidence   of  the  costs  and                                                                    
     damages incurred.  The court should then  consider this                                                                    
     as one  of the  relevant factors  when it  determines a                                                                    
     bond/security  amount.   The  amount  of   security  is                                                                    
     totally within the hands of the court.                                                                                     
                                                                                                                                
     Language was added in the  House Judiciary Committee to                                                                    
     further clarify  that no such  security is  required of                                                                    
     the state and municipalities  and to exclude permitting                                                                    
     programs in  which DEC  or DNR  issues permits  under a                                                                    
     state  primacy permitting  program  that was  developed                                                                    
     under federal law and approved by a federal agency.                                                                        
                                                                                                                                
2:53:15 PM                                                                                                                    
REPRESENTATIVE   FEIGE  concluded   that  this   legislation  has                                                               
implications for  preserving the  interests of  companies engaged                                                               
in resource  extraction, as well  as for potential  revenues that                                                               
could accrue  to the state  of Alaska  if those projects  are not                                                               
unduly delayed.                                                                                                                 
                                                                                                                                
SENATOR WIELECHOWSKI directed attention to  page 2, lines 8 - 15.                                                               
He asked why the exemptions are there.                                                                                          
                                                                                                                                
REPRESENTATIVE  FEIGE   said  it  was   a  concern  by   the  DEC                                                               
commissioner  that  the  previous language  could  conflict  with                                                               
federal  law. From  line  9 to  line 15  are  the exemptions  for                                                               
permits attained  under the Clean  Water Act and under  the Clean                                                               
Air Act, federal permitting programs the state administers.                                                                     
                                                                                                                                
SENATOR WIELECHOWSKI  asked if omitting the  exemptions risks the                                                               
ability to issue permits for the EPA on those Acts.                                                                             
                                                                                                                                
REPRESENTATIVE  FEIGE  said that's  a  matter  of debate  and  an                                                               
effort to avoid court fights.                                                                                                   
                                                                                                                                
2:55:39 PM                                                                                                                    
LYNN  KENT,  Deputy  Commissioner,  Department  of  Environmental                                                               
Conservation  (DEC), Anchorage,  Alaska, explained  that the  two                                                               
provisions were added  to make it clear that the  state law isn't                                                               
more  restrictive  than federal  law  with  regard to  access  to                                                               
courts. She added that DEC does not object to the language.                                                                     
                                                                                                                                
SENATOR WIELECHOWSKI  inquired if  the federal  government allows                                                               
this  kind of  security  or  bond in  the  attempt  to obtain  an                                                               
injunction or a restraining order.                                                                                              
                                                                                                                                
MR. KENT deferred the question to the Department of Law.                                                                        
                                                                                                                                
2:56:33 PM                                                                                                                    
RUTH   HEESE,  Assistant   Attorney   General,  Civil   Division,                                                               
Environmental Section, Department of Law,  said the issue is that                                                               
there  not  be  a  concern  by  the  federal  approving  agencies                                                               
regarding actions brought  by the federal courts  with respect to                                                               
actions  brought  on  permits   issued  under  primacy  programs.                                                               
Exempting the Clean Air and  Clean Water and Coal program permits                                                               
from  HB  47  gives  assurance to  federal  agencies  that  state                                                               
programs won't be subject to the security requirements.                                                                         
                                                                                                                                
REPRESENTATIVE FEIGE  said federal  Rule 65c  and state  Rule 65c                                                               
are essentially  the same. They  both put the  responsibility for                                                               
setting the bond amount on the judge of the particular court.                                                                   
                                                                                                                                
SENATOR WIELECHOWSKI  countered that the bill  requires people to                                                               
post a bond if they are  attempting to get a restraining order or                                                               
an injunction in a state action.                                                                                                
                                                                                                                                
REPRESENTATIVE FEIGE  said, "We're not  requiring them to  put it                                                               
up   in   a  bond,   we're   asking   the  judge   to   consider.                                                               
                                                                                                                                
SENATOR WIELECHOWSKI  read page  1, line  9, "unless  exempt, the                                                               
parties  seeking restraining  order,  preliminary injunction,  or                                                               
order  vacating  or  staying the  operation  of  certain  permits                                                               
affecting an industrial operation  shall give security." He asked                                                               
if the "shall" isn't mandatory.                                                                                                 
                                                                                                                                
REPRESENTATIVE  FEIGE  said  it's whatever  the  court  considers                                                               
proper.                                                                                                                         
                                                                                                                                
SENATOR  WIELECHOWSKI   maintained  that   the  courts   will  be                                                               
wondering how much they should  require. He requested the sponsor                                                               
state the intent and asked whether the court could say zero.                                                                    
                                                                                                                                
REPRESENTATIVE  FEIGE  replied  that  the  courts  could  require                                                               
nothing.                                                                                                                        
                                                                                                                                
SENATOR  WIELECHOWSKI  asked  for  the  circumstances  where  the                                                               
courts could say that.                                                                                                          
                                                                                                                                
REPRESENTATIVE  FEIGE  said he  would  leave  it to  the  judge's                                                               
discretion.                                                                                                                     
                                                                                                                                
2:59:34 PM                                                                                                                    
CHAIR  COGHILL said  it's a  valid question.  He held  HB 47  for                                                               
further consideration and kept public testimony open.                                                                           

Document Name Date/Time Subjects
SJR 25_2006_Demand_Ltr_PressRelease.pdf SJUD 3/24/2014 1:30:00 PM
SJR 25
SJR 25_Court EVOS ruling 2-15-12.pdf SJUD 3/24/2014 1:30:00 PM
SJR 25
SJR 25_Department of Justice and Department of Law Joint_FactSheet.pdf SJUD 3/24/2014 1:30:00 PM
SJR 25
SJR 25_Exxon Aims to Bail on Payments for Valdez Damage.pdf SJUD 3/24/2014 1:30:00 PM
SJR 25
SJR 25_Letter of Support_Steiner.pdf SJUD 3/24/2014 1:30:00 PM
SJR 25
SJR 25_Reopener Restoration Plan June 1, 2006.pdf SJUD 3/24/2014 1:30:00 PM
SJR 25
SJR 25_Reopener_Demand_Letter.pdf SJUD 3/24/2014 1:30:00 PM
SJR 25
SJR 25_Restoration Plan_Exxon Valdez Oil Spill Trustee Council.pdf SJUD 3/24/2014 1:30:00 PM
SJR 25
SJR 25_Sponsor Statement.pdf SJUD 3/24/2014 1:30:00 PM
SJR 25
SJR 25_State of Alaska and Department of Interior Press Release.pdf SJUD 3/24/2014 1:30:00 PM
SJR 25
SJR 25_US Fish and Wildlife FactSheet.pdf SJUD 3/24/2014 1:30:00 PM
SJR 25
SJR 25_USGS Poster.pdf SJUD 3/24/2014 1:30:00 PM
SJR 25
SJR_25_Judge Considers Exxon Valdez Reopener Clause.pdf SJUD 3/24/2014 1:30:00 PM
SJR 25
Correctional Officers' Memo-Legal.pdf SJUD 3/24/2014 1:30:00 PM
HB 218
APOA Letter of Support.pdf SJUD 3/24/2014 1:30:00 PM
HB 218
AS 12.55.155.pdf SJUD 3/24/2014 1:30:00 PM
HB 218
Law Memo on Sentencing.pdf SJUD 3/24/2014 1:30:00 PM
HB 218
Margaret Stock Follow up Testimony.pdf SJUD 3/24/2014 1:30:00 PM
HB 218
Police Chiefs Letter of Support.pdf SJUD 3/24/2014 1:30:00 PM
HB 218
Response to Comments on AG Memo.pdf SJUD 3/24/2014 1:30:00 PM
HB 218
Sponsor Statement - CSHB 218(JUD).pdf SJUD 3/24/2014 1:30:00 PM
HB 218
U.S. Immigration & Customs Enforcement Memorandum.pdf SJUD 3/24/2014 1:30:00 PM
HB 218
HB 47 Letter of Support - Resource Development Council.pdf SJUD 3/24/2014 1:30:00 PM
HB 47
CSHB 47(JUD) Sponsor Statement.pdf SJUD 3/24/2014 1:30:00 PM
HB 47
CSHB47 - Explanation of Changes.pdf SJUD 3/24/2014 1:30:00 PM
HB 47
CSHB47(JUD) Sectional.pdf SJUD 3/24/2014 1:30:00 PM
HB 47
CSHB47(JUD) Version Y.pdf SJUD 3/24/2014 1:30:00 PM
HB 47
HB 47 Alaska Rules of Procedure - Rule 65(c).pdf SJUD 3/24/2014 1:30:00 PM
HB 47
HB 47 Dept. of Law - Overview of Injunctions.pdf SJUD 3/24/2014 1:30:00 PM
HB 47
HB 47 Letter of Support - Council of AK Producers.pdf SJUD 3/24/2014 1:30:00 PM
HB 47
HB 47 Letter of Support - Doyon.pdf SJUD 3/24/2014 1:30:00 PM
HB 47