Legislature(2013 - 2014)BELTZ 105 (TSBldg)
03/31/2014 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB47 | |
| HB284 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 284 | TELECONFERENCED | |
| = | HB 47 | ||
HB 47-INJUNCTION SECURITY: INDUSTRIAL OPERATION
1:35:51 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." [This was the third hearing
and [CSHB 47(JUD) was before the committee.]
LINDA HAY, Staff, Representative Eric Feige, Alaska State
Legislature Juneau, Alaska, introduced herself.
CHAIR COGHILL asked Ruth Hamilton Heese to again provide
testimony on HB 47 because the previous teleconference
connection was very garbled.
1:37:11 PM
RUTH HAMILTON HEESE, Assistant Attorney General, Civil Division,
Environmental Section, Department of Law, Juneau, Alaska,
restated the reasons for the exemptions for the primacy programs
that were approved by EPA or the Department of Interior for the
Clean Water Act regulation, Clean Air Act regulation and the
coal program that the state administers under the Surface Mining
Control and Reclamation Act. State agencies were concerned that
the injunction provisions anticipated in the original language
of HB 47 may be viewed by federal agencies as chilling third
parties' access to the courts in order to challenge a primacy
permit that the state issues. This opened the possibility that
the federal agencies would withdraw approval of the federal
permitting programs over which the state has primacy. The new
language set out in subsection (d) of CSHB 47 address the
initial concerns by exempting the state's primacy programs from
application in the bill.
CHAIR COGHILL asked what process the law would follow if a
public interest litigant filed suit under this provision.
MS. HAMILTON HESSE deferred to John Hutchison.
1:41:03 PM
JOHN HUTCHINS, Assistant Attorney General, Civil Division, Oil,
Gas, and Mining Section, Department of Law, advised that it
would be identical to the current process under [Federal Rule of
Civil Procedure 65].
CHAIR COGHILL asked how the bond would be apportioned for a
third party who is largely backed by somebody versus somebody
who has a neighborhood problem.
MR. HUTCHINS explained that a hearing would be held to determine
whether a preliminary injunction should issue. Once the judge
has determined that the injunction should issue and that the
injury is irreparable, the judge would consider the usual
factors under Rule 65. With passage of HB 47, the judge would
also consider the wages and benefits for employees or payments
that contractors and subcontractors may have suffered and set
the appropriate bond.
1:42:56 PM
SENATOR WIELECHOWSKI joined the committee.
CHAIR COGHILL summarized his understanding.
MR. HUTCHISON clarified that it would have to be an injury that
can't be compensated by a monetary award if the party prevails.
It would have to be an injury that is irreparable.
CHAIR COGHILL opened public testimony.
1:44:22 PM
BARBARA HUFF TUCKNESS, Director, Legislative and Governmental
Affairs, Teamsters Local 959, Anchorage, Alaska, stated support
for HB 47. She disagreed with the allegation that the bill does
nothing but stop the permitting process. She cited an instance
when a union member working on a federal project was laid off
for 2-3 weeks when an injunction was filed after the permitting
process was complete and the project was ready to go forward.
She said she found no similar examples under the state law but
the concern is that if there is a wrongful enjoinment, the
entity who files the lawsuit needs to have some "skin in the
game" because workers are impacted. She stressed that once a
contractor has been awarded a contract and has walked through
all the appropriate steps, it is only fair to allow the
construction to move forward without undue interference.
CHAIR COGHILL asked Ms. Hay if she wanted to supplement the
record.
MS. HAY said she didn't have anything to add.
CHAIR COGHILL found no further questions and solicited a motion.
1:48:34 PM
SENATOR MCGUIRE moved to report CS for HB 47 from committee with
individual recommendations and attached fiscal note(s).
1:49:00 PM
SENATOR WIELECHOWSKI objected voicing concern that people whose
property is threatened will be financially foreclosed from
exercising their constitutional rights to go to the courts to
challenge a project. He questioned the need for the legislation
when there was already a law on the books that requires
security. This legislation is likely to increase the security
amounts which will close the door to the courts for the middle
class and working families. "I can't support that," he said.
SENATOR OLSON said he too objects because it places his
constituents at a financial disadvantage. It imposes another
hurdle and makes it prohibitively expensive to try to object to
development in the rural areas where they live.
CO-CHAIR COGHILL stated his support for the legislation based on
the testimony from the Department of Law and his belief that
this was well within a judge's ability to give proper
discretion.
He asked for a roll call vote.
1:50:24 PM
A roll call vote was taken. Senators McGuire, Dyson, and Coghill
voted in favor of reporting HB 47 from committee; Senators
Wielechowski and Olson voted against it. Therefore, CSHB 47(JUD)
was reported out of the Senate Judiciary Standing Committee by a
vote of 3:2.