Legislature(2013 - 2014)BELTZ 105 (TSBldg)
03/28/2014 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB47 | |
| HB218 | |
| SB201 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| += | HB 47 | TELECONFERENCED | |
| += | HB 218 | TELECONFERENCED | |
| += | SB 201 | TELECONFERENCED | |
HB 47-INJUNCTION SECURITY: INDUSTRIAL OPERATION
2:03:50 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." [CSHB 47(JUD) was before the
committee.] Noting that this was the second hearing, he asked
Ms. Hay if she had any information to add.
2:04:21 PM
LINDA HAY, Staff, Representative Eric Feige, Alaska State
Legislature, Juneau, Alaska, said Ruth Hamilton Heese is online
to address the question that Senator Wielechowski had about the
DEC provisions. She added that the sponsor worked closely with
the administration during the Interim to address the concerns on
permits that the state has received from the federal government
through primacy. She noted that Ed Fogels with the Department of
Natural Resources (DNR) was available to answer questions about
primacy regarding surface coal and Nancy Meade was available to
address suggestions from the Court System.
SENATOR WIELECHOWSKI asked the Department of Law why clean air
and clean water was exempt.
RUTH HAMILTON HEESE, Assistant Attorney General, Civil Division,
Environmental Section, Department of Law Juneau, Alaska,
explained that the state agencies were concerned that EPA or the
Department of Interior might view the injunction provision as
chilling third party access to the court and withdraw approval
of the program. [Teleconference terminated due to indiscernible
audio.]
2:07:54 PM
JOHN HUTCHINS, Assistant Attorney General, Civil Division, Oil,
Gas & Mining Section, Department of Law, Juneau, Alaska, offered
to answer questions.
SENATOR WIELECHOWSKI referenced page 1, line 9, and asked how he
envisions the courts will determine what constitutes proper
security.
MR. HUTCHINS offered his expectation that it would work in much
the same way as securing a bond for a preliminary injunction.
The court makes a determination about the amount of security
based on testimony during the hearing.
SENATOR WIELECHOWSKI asked how much it might cost a middle class
homeowner who is trying to enjoin a multimillion dollar mine on
the adjacent property.
MR. HUTCHINS said he didn't believe the language would change
the amount that is required under existing Rule 65, but it does
have the effect of asking courts to look at broader policy
considerations and the impact of the injunction on people
generally.
SENATOR WIELECHOWSKI asked, under the current Court Rule 65, if
there was a security requirement for an order vacating or
staying the operation of certain permits.
MR. HUTCHINS replied Court Rule 65 only addresses injunctions.
SENATOR WIELECHOWSKI asked if this was a new provision.
MR. HUTCHINS answered yes.
SENATOR WIELECHOWSKI asked if there was an exemption for an
average homeowner who could not afford to challenge a large
industrial corporation if the homeowner thought a permit was
wrongfully issued.
MR. HUTCHINS said no, but if the homeowner can show irreparable
injury the court has discretion under Court Rule 65 and
discretion under this statute to set a bond that is fair.
SENATOR WIELECHOWSKI pointed out that the language on page 1,
lines 12-14 appears to remove much of the discretion that the
court currently has under Court Rule 65.
MR. HUTCHINS responded that the purpose of Court Rule 65 is to
try to reach a fair allocation of costs, and it too has
mandatory language. He opined that what the wages and benefits
language adds is a look at both the costs sustained by the
industrial operation and the potential impact on workers and
contractors who may or may not be parties to the litigation.
CHAIR COGHILL opened public testimony.
2:17:18 PM
JAMES SULLIVAN, Southeast Alaska Conservation Council (SEACC),
stated that SEACC opposes HB 47 in the belief that Alaskans
should always have the right to petition the court if they
believe that the government has not done its job properly or if
a corporation isn't following the terms of its permit. He
maintained that HB 47 created double standards within the legal
system by exempting permits under the Clean Water Act, the Clean
Air Act, and surface coal mining. This was done because the
state was concerned that it would lose its ability to administer
permits under those federal programs. This patchwork approach
imposes bonding requirements for some permits but not for
others. He further highlighted that this law protects the state
and municipalities from having to bond, but not private citizens
and tribal groups, or Alaskan organizations.
MR. SULLIVAN explained that when an Alaska court makes a
decision on a temporary restraining order or a preliminary
injunction, the plaintiff must show balance of hardships or
irreparable harm. Because this standard is already very high the
bill doesn't solve any problems, but it would send a clear
message to Alaskans that this legislature believes that the
value of Alaskans' rights is commensurate to the value of their
checkbook. That would be an unfortunate message to send, which
is why SEACC opposes HB 47, he concluded.
SENATOR OLSON commented that in the recent past Alaska
environmental issues have become an international football. Some
groups that don't have Alaska's best interest at heart are
joining litigation and taking advantage of people in the rural
areas and trying to inhibit activities like reindeer herding and
hunting. He questioned how to create a reasonable balance
between the varied interests because litigation is very
expensive.
MR. SULLIVAN agreed that litigation can be very costly, but it
is SEACC's belief that no one should be financially intimidated
from accessing the court. Every Alaskan should have the ability
to go to court and say their rights are being violated without
having a financial backer.
SENATOR WIELECHOWSKI argued that the law as it exists already
protects Alaskans. To get a restraining order right now the
plaintiff has to prove irreparable harm and post a bond. If the
plaintiff loses they'll have to pay attorney's fees under Court
Rule 82. He opined that the law is already weighted in favor of
industry and HB 47 tips it further by increasing the bond
requirement. The average Alaskan won't be able to afford to go
to court to get the relief that they are constitutionally
entitled to seek, he said.
2:23:38 PM
RICK ROGERS, Executive Director, Resource Development Council
(RDC), Anchorage, Alaska, stated that RDC supports a rigorous
science-based permitting system that allows responsible
development of Alaska's resources. RDC also supports public
input through the public process, but too often opponents of
projects file litigation after the process is complete and it
delays or stops the permitted development. If the litigation
ultimately is found to have no merit, it is the Alaska workers
who suffer the most from lost wages and opportunities. HB 47
helps rectify this by requiring parties seeking a restraining
order to post a bond to cover lost wages or benefits if the
[project] is found to be wrongfully enjoined.
RDC does not believe that the bill prevents appeals or
litigation of state permits or that it restricts the rights of
public interest litigants. It does force public interest
litigants to recognize that there is a financial risk of their
actions and it does provide security for Alaska workers. For
these reasons, RDC supports HB 47.
CHAIR COGHILL asked Ms. Hay if she would like to speak to the
issue of the public interest litigant and small property owners.
MS. HAY responded that Court Rule 65(c) already says that a bond
is required and the amount is at the discretion of the court.
Legislative Legal essentially said the courts already have the
ability to take wages into account and HB 47 simply highlights
that as one relevant economic factor the court should consider.
With regard to the homeowner who has a mine next door, that
person would have had ample opportunity to talk about it during
the permitting process. And if a permit isn't being followed,
that should be addressed by the department that issued the
permit, not the court.
SENATOR OLSON said he assumes that the bill is in response to
the suit filed by Bella Hammond and Vic Fischer to stop the
Pebble Mine, and he wonders how someone from Shishmaref or
Noatak could afford to challenge a major project next door now
that there is no longer an ability to do so under the Coastal
Zone Management Plan. This appears to be another impediment to
the people in rural areas, he said.
MS. HAY responded that HB 47 affects industrial operations that
occur on state land going forward. It was not crafted for Pebble
Mine, but it is one of those operations.
2:30:50 PM
CHAIR COGHILL announced he would hold HB 47 in committee for
further consideration.
| Document Name | Date/Time | Subjects |
|---|---|---|
| CSSB 201.pdf |
SJUD 3/28/2014 1:30:00 PM |
SB 201 |
| HB 218 Amendment.PDF |
SJUD 3/28/2014 1:30:00 PM |
HB 218 |
| HB 47 - Written Testimony.pdf |
SJUD 3/28/2014 1:30:00 PM |
HB 47 |
| Written Testimony - SB 201.pdf |
SJUD 3/28/2014 1:30:00 PM |
SB 201 |