Legislature(2021 - 2022)GRUENBERG 120
03/22/2021 01:30 PM House JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| HB109 | |
| HB29 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 109 | TELECONFERENCED | |
| += | HB 29 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
March 22, 2021
1:31 p.m.
DRAFT
MEMBERS PRESENT
Representative Matt Claman, Chair
Representative Liz Snyder, Vice Chair (via teleconference)
Representative Harriet Drummond
Representative Jonathan Kreiss-Tomkins
Representative David Eastman
Representative Christopher Kurka
Representative Sarah Vance
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
HOUSE BILL NO. 109
"An Act extending the termination date of the Board of Governors
of the Alaska Bar Association; and providing for an effective
date."
- HEARD & HELD
HOUSE BILL NO. 29
"An Act relating to liability of an electric utility for contact
between vegetation and the utility's facilities; and relating to
vegetation management plans."
- HEARD & HELD
PREVIOUS COMMITTEE ACTION
BILL: HB 109
SHORT TITLE: EXTEND BAR ASS'N BOARD OF GOVERNORS
SPONSOR(s): REPRESENTATIVE(s) CLAMAN
02/22/21 (H) READ THE FIRST TIME - REFERRALS
02/22/21 (H) JUD, FIN
03/22/21 (H) JUD AT 1:30 PM GRUENBERG 120
BILL: HB 29
SHORT TITLE: ELECTRIC UTILITY LIABILITY
SPONSOR(s): REPRESENTATIVE(s) RAUSCHER
02/18/21 (H) PREFILE RELEASED 1/8/21
02/18/21 (H) READ THE FIRST TIME - REFERRALS
02/18/21 (H) JUD, L&C
03/19/21 (H) JUD AT 1:30 PM GRUENBERG 120
03/19/21 (H) <Bill Hearing Canceled>
03/22/21 (H) JUD AT 1:30 PM GRUENBERG 120
WITNESS REGISTER
LIZZIE KUBITZ, Chief of Staff
Representative Matt Claman
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Introduced HB 109 on behalf of
Representative Claman, prime sponsor.
KRIS CURTIS, CPA, CISA, Legislative Auditor
Division of Legislative Audit
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: During the hearing of HB 109, discussed the
division's audit report regarding the Board of Governors of the
Alaska Bar Association.
BEN HOFMEISTER, President
Board of Governors
Alaska Bar Association
Juneau, Alaska
POSITION STATEMENT: During the hearing of HB 109, answered
questions and provided invited testimony on the bill.
DANIELLE BAILEY, Executive Director
Alaska Bar Association
Anchorage, Alaska
POSITION STATEMENT: During the hearing of HB 109, answered
questions related to the bill.
REPRESENTATIVE GEORGE RAUSCHER
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: As prime sponsor, introduced HB 29.
JESSE LOGAN, Staff
Representative George Rauscher
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented HB 29 on behalf of Representative
Rauscher, prime sponsor.
CRYSTAL ENKVIST, Executive Director
Alaska Power Association (APA)
Anchorage, Alaska
POSITION STATEMENT: During the hearing of HB 29, answered
questions and provided information in support of the bill.
JOHN ANDREW LEMAN, Attorney
Kemppel, Huffman and Ellis, PC
General Counsel, Alaska Power Association (APA)
Anchorage, Alaska
POSITION STATEMENT: During the hearing of HB 29, answered
questions and provided information in support of the bill.
JIM BUTLER, Attorney
Baldwin & Butler LLC
Advisor, Incident Response Group, Homer Electric Association
(HEA)
Kenai, Alaska
POSITION STATEMENT: During the hearing of HB 29, answered
questions and provided information in support of the bill.
TRAVIS MILLION, Chief Executive Officer (CEO)
Copper Valley Electric Association (CVEA)
Glennallen, Alaska
POSITION STATEMENT: During the hearing of HB 29, answered
questions and provided information in support of the bill.
JOHN BURNS, President & Chief Executive Officer (CEO)
Golden Valley Electric Association (GVEA)
Fairbanks, Alaska
POSITION STATEMENT: During the hearing of HB 29, answered
questions and provided information in support of the bill.
ACTION NARRATIVE
1:31:12 PM
CHAIR MATT CLAMAN called the House Judiciary Standing Committee
meeting to order at 1:31 p.m. Representatives Eastman,
Drummond, Kurka, Kreiss-Tomkins, Snyder (via teleconference),
and Claman were present at the call to order. Representative
Vance arrived as the meeting was in progress.
HB 109-EXTEND BAR ASS'N BOARD OF GOVERNORS
1:31:53 PM
CHAIR CLAMAN announced that the first order of business would be
HOUSE BILL NO. 109, "An Act extending the termination date of
the Board of Governors of the Alaska Bar Association; and
providing for an effective date."
1:32:16 PM
LIZZIE KUBITZ, Chief of Staff, Representative Matt Claman,
Alaska State Legislature, introduced HB 109 on behalf of
Representative Claman, prime sponsor. She explained that HB 109
extends the termination date of the Board of Governors of the
Alaska Bar Association ("Bar") from 6/30/2021 to 6/30/2029, in
accordance with the recommendation of the legislative auditor.
She said the Division of Legislative Audit concluded an audit of
the Board of Governors and determined that the board is
operating in the public's interest and complied with its duties
and responsibilities to the public, and the division recommended
that the termination date be extended to 6/30/2029. She said
the Division of Legislative Audit has also determined that the
Board of Governors should again recommend to the Alaska Supreme
Court that it amend the Bar rules to increase the number of
mandatory continuing legal education (CLE) credit hours.
Currently, she continued, Bar members "shall" complete three
hours of ethics CLE and "may" complete nine hours of general
CLE.
MS. KUBITZ stated that the Board of Governors serves an
important public service by regulating the practice of law,
promoting reform in the law and in judicial procedure,
facilitating the administration of justice, investigating
complaints, requiring continuing legal education for membership,
and increasing the public service and efficiency of the Bar.
1:34:30 PM
CHAIR CLAMAN disclosed for the record that he is a member of the
Alaska Bar Association.
1:34:50 PM
KRIS CURTIS, CPA, CISA, Legislative Auditor, Division of
Legislative Audit, stated that the Division of Legislative Audit
conducted an audit of the Board of Governors of the Alaska Bar
Association. She explained that the purpose of a sunset audit
is to determine whether a board or commission is serving the
public's interest and whether it should be extended. She
directed attention to the 6/9/2020 audit report in the committee
packet [titled "A Sunset Review of the Alaska Court System,
Board of Governors of the Alaska Bart Association (Bar)]. She
stated the audit concluded that the board served the public's
interest by effectively admitting qualified members to the Bar
and by investigating complaints made against Bar members. She
further stated that the division is recommending an eight-year
extension, which is the maximum allowed for in statute.
MS. CURTIS brought attention to the schedule of admission and
exam statistics for calendar years 2017 through 2019 (page 8 of
the audit report). She noted that, on average, 120 members were
admitted to the Bar each year, and, on average, the exam pass
rate was 54 percent. She specified that the audit reviewed a
random sample of 15 new member applications and found all 15 met
admission requirements.
1:35:59 PM
MS. CURTIS discussed the Bar's disciplinary statistics (page 6
of the audit report). She related that between January 2017 and
December 2019, 689 complaints were filed with the Bar; 82
percent were not accepted for further investigation because the
complaints were incomplete, or did not identify unethical
conduct, or were not within the Bar's jurisdiction. She noted
that five complaints resulted in discipline and 89 complaints
were still open at the time of the audit.
MS. CURTIS said that to promote competency and professionalism,
active Bar members are required to obtain three hours of
continuing education each year and encouraged to voluntarily
obtain nine additional hours. She pointed out that as of March
2020, 37 states required at least 12 continuing education hours
each year, making Alaska's required CLE hours significantly
below most other states. She further pointed out that the low
number of mandatory continuing education hours has been a
finding in the prior three sunset audits. She related that in
2011 the board formed a committee to review the mandatory
continuing education program. The review, she continued,
included an electronic survey of Bar members, and of the over
900 Bar members that responded to the survey 91 percent did not
favor increasing the mandatory education hours.
1:37:24 PM
MS. CURTIS turned to the findings and recommendations (page 11
of the audit report). The first recommendation, she specified,
is that the Bar's executive director should ensure meetings are
properly posted on the state's online public notice system. She
related that of the nine meetings reviewed by the division,
seven were not published on the state's online public notice
system and six did not include public comment as an agenda item.
She said that according to the executive director the notices
were posted in the Bar's publication called the "Bar Rag" and
were posted on the Bar's website. However, she pointed out,
that does not technically comply with the law that requires they
be posted on the state's public notice system.
MS. CURTIS addressed the second recommendation that states the
board should improve internal controls over the Bar's online
admission system and case management database [page 12]. She
said two deficiencies were identified by the audit that could
affect the security and availability of data. The pertinent
details, she explained, were communicated to management in a
separate confidential document and not reported in the audit to
ensure that the weaknesses are not exploited. She said
management did provide Legislative Audit corrective action.
1:38:33 PM
MS. CURTIS spoke to the third recommendation that states the
board should recommend an increase in the non-ethics mandatory
continuing legal education for attorneys (page 12). In 2019,
she related, 99 percent of Bar members completed the mandatory
ethics education, but only 55 [percent] voluntarily completed
the nine additional hours. She explained that continuing
education is important because it benefits the public by helping
ensure that attorneys remain competent regarding the law and the
profession's obligations and standards.
MS. CURTIS concluded her testimony with a review of management's
response to the audit (pages 29-33 of the report). She said the
court system's general counsel agrees that the board should make
a new recommendation on the number of mandatory continuing
education hours for the court's consideration. The board's
response, she continued, agrees with recommendations one and
two. Regarding recommendation three, the board agreed to
discuss the appointment of a committee to review the mandatory
continuing education at its October 2020 meeting.
1:40:16 PM
REPRESENTATIVE EASTMAN asked whether the Alaska Bar Association
has any other duties in addition to admitting applicants and
dealing with disciplinary issues.
MS. CURTIS replied that under the "Organization and Function"
section of the report, page 1 describes the board composition
and page 2 talks about the board's two primary functions. She
said it's an interesting dynamic because of how the Alaska
Supreme Court and the Bar work together to oversee the legal
occupation profession.
REPRESENTATIVE EASTMAN stated that this seems like a short list.
He asked whether statute or official policy delegates any other
official duties to the Bar.
MS. CURTIS responded that the board's purpose includes
regulating the practice of law through regulation, promoting
reform in the law and the judicial procedure, facilitating the
administration of justice, encouraging education, administering
the Bar exam, admitting members to the Bar, and disciplining the
Bar. She explained that that is the typical function of any
occupational board.
1:42:24 PM
REPRESENTATIVE KURKA related that he has looked at how many
attorneys comprise the [board] and how many are appointed by the
governor and how many are appointed internally. He said he
hasn't made a comparison to other boards and commissions, but
the normal process is that the governor appoints members to a
state board to be confirmed by the legislature. He stated that
this board seems lopsided in that it is heavily controlled by
the Alaska Bar Association without input from the legislature.
MS. CURTIS answered that she never considered that. She said
this association appoints its members and the governor appoints
only three, and that typically on an occupational board the
governor appoints more. She said she doesn't have the
background on that to talk about why that is the case.
REPRESENTATIVE KURKA inquired whether Ms. Curtis is aware of any
other boards that are structured this way where it comes
internally from the industry and not from the governor.
MS. CURTIS replied there are plenty of other boards, although
maybe not occupational boards, that have identified composition
that might come from other places, but she doesn't have any
statistics to provide.
REPRESENTATIVE KURKA asked whether it is true that Board of
Governors or the members at large of the Bar select the attorney
appointee to the Judicial Council.
REPRESENTATIVE CLAMAN clarified that Representative Kurka is
asking about the three members of the Judicial Council that are
selected by the Alaska Bar Association.
MS. CURTIS responded that the audit did not look at that
specifically and has no comment about that.
1:44:57 PM
REPRESENTATIVE SNYDER stated that these seem to be essential
primary functions. She asked who would pick up those functions
and what the anticipated repercussions would be if this board
was terminated.
MS. CURTIS replied she doesn't have a good answer for that and
doesn't know what would happen if that was the case. She noted,
however, that typically if it's an occupational board it falls
within the Department of Commerce, Community, and Economic
Development and if the board goes away the licensing function
reverts to the department and there is no break in the actual
occupation. With this board, she continued, rather than it
terminating she sees this as more of a legislative oversight
process as opposed to actually considering it for termination,
like the Board of Parole and those type of boards.
CHAIR CLAMAN added that it is unlike other boards because the
licensing of attorneys is in the end a matter for the court
because the court is a third branch of government as the people
who are admitted to practice before the court. Unlike any other
board, he continued, it is not entirely clear that it could go
back to another part of the Executive Branch because the
supervision in the end is ultimately the court's responsibility,
not the Executive Branch's responsibility.
1:47:12 PM
REPRESENTATIVE SNYDER requested clarification on the word
"terminate" given that is the word used in the audit provided to
the committee.
MS. CURTIS answered that a sunset date is in statute for this
board, so technically it would terminate if a bill were not
submitted to the legislature to formally extend the board.
CHAIR CLAMAN asked whether anyone from the Alaska Bar
Association would like to add perspective regarding this
specific function should the legislature not extend the sunset
date as well as who is supervising and how that works.
1:48:14 PM
BEN HOFMEISTER, President, Board of Governors, Alaska Bar
Association, noted he is an assistant attorney general in the
attorney general's office, but that he is before the committee
in his capacity as the Alaska Bar Association president. He
said this was analyzed briefly in prior conversations with the
Board of Governors over the past three years, and he agrees with
Chair Claman, which is that the functions would fall underneath
the court, specifically the supreme court. "So," he continued,
"if this were terminated, we would probably follow the same
model of other states that do not have a bar association like we
do." He said if he remembers correctly Nebraska was one of the
other states looked to and all of Nebraska's disciplinary and
admissions issues fall directly under the supreme court. "We
would also terminate the funding source that comes from our
dues," he said, "and that would be something that the
legislature would have to pick up in terms of funding ... all
the things that we do that are pointed out in ... Ms. Curtis's
legislative audit report."
1:49:29 PM
REPRESENTATIVE KREISS-TOMKINS referenced the results of the
member survey about increasing the number of CLE hours required.
He inquired whether the Bar has a position about what may happen
to the current requirement.
1:50:02 PM
DANIELLE BAILEY, Executive Director, Alaska Bar Association,
replied that after receiving the audit the Bar formed the "MCLE
Subcommittee." She related that the subcommittee has had five
meetings and at this point has decided it will not be polling
the membership, and that it's looking like the subcommittee is
going to increase the number of CLE hours. However, she noted,
the subcommittee's work is not yet finished, and that
recommendation would go to the board and the board has not had
time to process all those results yet.
CHAIR CLAMAN noted that even if the board suggests increasing
the number of mandatory CLE hours, it would ultimately be a
decision for the Alaska Supreme Court. He recalled that in 2008
or 2009 the supreme court approved the three mandatory ethics
hours, but during years prior to that the board had suggested
more than just the three hours of ethics and the supreme court
rejected the request. He explained he knows about this because
he was president of the board at the time.
1:51:30 PM
REPRESENTATIVE KREISS-TOMKINS asked whether there is a list of
courses or trainings that are approved by the Alaska or national
bar associations that one must select from to fulfill the CLE
requirement.
MS. BAILEY responded that attorney members can receive their CLE
credits in a variety of ways. She said the essentially one hour
of education equates to one CLE credit. The Alaska Bar
Association has lots of offerings, she continued, and that
information is provided in the Bar's annual report to the
legislature. Members are also free to get continuing legal
education from other sources, she added.
1:52:36 PM
REPRESENTATIVE EASTMAN said there seems to be a lot of focus on
CLE requirements in the audit. He asked how that came to be a
focus of the audit.
MS. CURTIS answered that the criteria used is in Appendix A to
the audit. The division, she explained, uses specifically set
statutory criteria to evaluate a board or commission. One
criterium is to what extent a board or commission is operating
in the public's interest and, given this has been a finding in
the previous three sunset audits, it was already on the
division's radar to focus in and provide the current status of
that prior recommendation.
REPRESENTATIVE EASTMAN asked why eight years was the recommended
for the board's extension.
MS. CURTIS replied that eight years is the maximum allowed for
in the sunset statute. She said this board is operating fairly
well and that, in her opinion, there are not any serious
concerns that should impact the term of extension.
1:53:45 PM
CHAIR CLAMAN recalled the question about what would happen
financially if the legislature doesn't extend the sunset date.
He inquired whether the membership dues collected from members
would be self-sustaining or whether the board relies on any
state funds to run the Alaska Bar Association.
MS. CURTIS responded that Appendix A is comprised of the Alaska
Bar Association's statements of financial position showing the
Bar's fund balance and it looks like the association does have
adequate fund balance now to be self-supporting. To her
knowledge, she continued, the association does not receive any
funding from the legislature.
CHAIR CLAMAN asked whether, based on previous audits, there was
ever a time in which the Alaska Bar Association relied on state
funds to be self-supporting.
MS. CURTIS answered that she doesn't remember.
CHAIR CLAMAN stated he is "pretty sure the answer is no, there
was never a time."
1:54:49 PM
CHAIR CLAMAN opened public testimony on HB 109 and noted he
doesn't see anyone wishing to testify. He requested Mr.
Hofmeister to provide the association's invited testimony.
1:55:23 PM
MR. HOFMEISTER testified on behalf of the Board of Governors and
the Alaska Bar Association. He said he thinks the audit speaks
for itself and that the testimony of Ms. Curtis is a positive
note on the Bar and what it does. Regarding the earlier
question about the goals and purposes of the association, he
stated it is correct that discipline and admissions are primary
focuses. However, he continued, as explained by Ms. Curtis the
association also has [other] purposes as set out in Section 3 of
Article I of the association's bylaws. He related that as the
Bar president he constantly finds himself going back to the five
purposes when he is considering initiatives that the Bar
Association and the Board of Governors are taking on. He said
these purposes are to: regulate the practice of law; promote
reform in the law and in judicial procedure; facilitate the
administration of justice; encourage continuing legal education
for the membership; and increase the public service and
efficiency of the Bar. All of those are very important, he
opined, and not only does the Bar Association do an excellent
job of that, but it also has staff that know what they are
doing. He added that with him today are Phil Shanahan, Bar
Counsel, and Danielle Bailey, Executive Director, both amazing
attorneys who have taken on roles very recently and have led the
machine that is the Alaska Bar Association onward into 2021.
The association lost a lot of history last fall when the prior
executive director, Deborah O'Regan, retired after 38 years of
service, but Ms. Bailey has seamlessly led the association
forward. He stated that anyone reviewing this audit should be
comforted that the association does a good job in its purposes
of admissions and discipline. He said the Alaska Bar
Association believes HB 109, as proposed, is solid and should be
passed by the committee.
1:58:31 PM
CHAIR CLAMAN closed public testimony on HB 109 after
ascertaining the committee had no questions of the witness and
no one else wished to testify.
CHAIR CLAMAN offered his belief that Ms. O'Regan's 38 years of
serving as executive director is the longest in any bar
association in the history of the U.S.
1:59:40 PM
REPRESENTATIVE KREISS-TOMKINS inquired about the length of time
of the last extension for the Board of Governors.
CHAIR CLAMAN replied it was eight years.
CHAIR CLAMAN held over HB 109.
2:00:13 PM
The committee took an at-ease from 2:00 p.m. to 2:02 p.m.
HB 29-ELECTRIC UTILITY LIABILITY
2:02:41 PM
CHAIR CLAMAN announced that the final order of business would be
HOUSE BILL NO. 29, "An Act relating to liability of an electric
utility for contact between vegetation and the utility's
facilities; and relating to vegetation management plans."
2:03:22 PM
REPRESENTATIVE GEORGE RAUSCHER, Alaska State Legislature, as
prime sponsor, introduced HB 29. He stated that HB 29 makes
clear that an electric utility would not be held liable for a
fire caused by vegetation outside the utility's easement
contacting electric facilities. He said the bill requires
utilities to create, adopt, and adhere to a vegetation
management plan that would mitigate the risks of contact with
electrical facility's lines for vegetation within their easement
and right-of-way. Ultimately, he continued, this bill helps
protect utilities from lawsuits that arise from things outside
of the utilities' control and thus helps protect ratepayers by
keeping their costs down.
2:04:35 PM
JESSE LOGAN, Staff, Representative George Rauscher, Alaska State
Legislature, presented HB 29 on behalf of Representative
Rauscher, prime sponsor. He reiterated that HB 29 helps to
protect utility customers by clarifying that the utility is not
liable for fire damage caused by vegetation outside the utility
right-of-way and outside the utility's control. He said that
without this clarity, legal liability with wildfire that is
caused by vegetation contacting electrical lines poses a serious
threat to Alaska's electrical utilities and consequently to
their customers. The bill, he explained, stipulates that a
utility will be held liable for damages that are the result of
fire from vegetation located entirely within the boundary of a
right-of-way or if the utility fails to have a written
vegetation management plan or fails to comply with the
management plan. He pointed out that utilities are prohibited
from entering adjacent properties without the consent of the
property owner, yet they can still be held liable for the
damages that are the result of the vegetation located where they
are prohibited to enter or manage.
MR. LOGAN drew attention to the document in the committee packet
titled ["Alaska Electric Utility Liability Bill (House Bill 29),
General Information"], which was produced by the Alaska Power
Association (APA). He cited an example given in the document
from a 2015 case where litigation was brought against an
electrical cooperative. In that instance, he related, a spruce
tree located beyond the boundary of the utility easement fell
and contacted the cooperative's distribution line, resulting in
a wildfire. Damaged property owners sued the utility and the
case was eventually settled, he said, but the cooperative was
required to defend the lawsuit. Those costs of the legal
defense and the settlement, he continued, would most likely
result in a rate increase to the cooperative customers.
2:06:04 PM
MR. LOGAN reminded committee members that one of the main
missions of an electric utility is to provide reliable power.
It is in the best interest of the utility and therefore its
customers, he stated, to manage vegetation in a way that
mitigates any risks that may occur. He related that all the
utilities he is aware of have adopted vegetation management
plans as one of the many safety policies. As an example, he
drew attention to a draft plan from the Copper Valley Electric
Association (CVEA) provided in the committee packet. He pointed
out that these management plans include such things as right-of-
way maintenance schedules, hazard tree identification, removal
methods, and notification. He said he formerly worked as a
renewable energy project manager and safety policy coordinator
for Kotzebue Electric Association and even thought there isn't
one tree within 20 miles of the utility lines the association
had a vegetation management plan, illustrating that these
management plans are commonplace and taken seriously.
MR. LOGAN concluded his presentation by stating that without the
proposed reforms in HB 29 electric utilities would be held
liable for things outside their control, or they must look at
other options that are prohibitively expensive to consumers such
as burying the electric lines or widening the easements, costs
that would be passed on to consumers. He stressed the bill does
not give immunity to electric utilities, instead it sets up
clear rules and expectations for vegetation management.
2:08:26 PM
REPRESENTATIVE VANCE referenced last year's wildfires and asked
how HB 29 would impact a broader scope of fires, how the
utilities would need to respond, and whether any liability would
be had versus a singular tree.
2:09:28 PM
CRYSTAL ENKVIST, Executive Director, Alaska Power Association
(APA), requested that the question be answered by Mr. Andy
Leman, APA's general counsel.
2:09:40 PM
JOHN ANDREW LEMAN, Attorney, Kemppel, Huffman and Ellis, P.C.,
General Counsel, Alaska Power Association (APA), replied that
the impact of the bill is dependent on the determined cause of
the fire. "If it was because vegetation from outside the
easement contacted a tree then this says ... the utility is not
going to be responsible for that," he stated. If the fire is
inside the easement, he continued, then a look would be taken at
the vegetation management plan and whether the utility followed
it. He said he isn't personally familiar with the details of
what was determined to be the cause of last year's big
wildfires, but "you would certainly be looking at a bill like
this in a situation where you had a fire around the utility
line."
2:10:33 PM
REPRESENTATIVE VANCE recalled that the during the Swan Lake Fire
the Homer Electric Association's transmission line received
considerable damage. She inquired whether the association was
responsible for paying to get that repaired or whether the
federal government was responsible because it was a federally
managed wildfire.
2:12:07 PM
JIM BUTLER, Attorney, Baldwin & Butler LLC, Advisor, Incident
Response Group, Homer Electric Association (HEA), responded that
the large Swan Lake Fire burned throughout summer 2019. He said
the fire originated off the [federal] wildlife refuge and was
started by lightening. It came in through electrical
facilities, he stated, and HEA worked closely with the different
fire teams, but the fire did not originate because of an
electrical energized line. However, he continued, HEA has had
those in the urban interface context and those have typically
been from either a failure to an old electrical facility or
related to vegetation that had come in from outside the right-
of-way into the energized line. "In each of those cases," he
related, "[HEA] worked with forestry to do an investigation and
resolve any causal factors that might lead to assessment of
suppression cause."
2:13:18 PM
REPRESENTATIVE VANCE asked whether HEA was held liable to repair
the lines that were destroyed through that fire.
MR. BUTLER answered that the damaged transmission line in the
Swan Lake Fire carried electrical power from the Kenai Peninsula
to the Railbelt. He said other parties were involved in the
ownership administration of that line and the repair cost to the
facility was the responsibility of the utilities. Of primary
concern, he explained, was the exposure to suppression cost
because those costs can far exceed any potential coverage that
utilities might have.
REPRESENTATIVE VANCE mused about whether HB 29 would have helped
put repair liability for the transmission line onto the federal
government or whether she is conflating two different issues.
CHAIR CLAMAN asked whether repair of electric lines damaged by
lightening caused fires is considered a cost of doing business
in the utility world.
MR. BUTLER replied yes, in most cases the utility absorbs the
repair cost of a damaged facility if it is through an act of God
where it is hard to find a third party that may be responsible,
which has been the case on several large fires on the Kenai
Peninsula. In instances where a facility is damaged through
someone's negligence, he continued, HEA looks at options for
pursuing a claim for third party liability.
2:16:05 PM
REPRESENTATIVE KREISS-TOMKINS, regarding the cost of suppression
being of foremost interest, surmised the cost of suppression is
a part of the liability that electric cooperatives assume. He
requested elaboration on that relationship.
MR. LEMAN responded that suppression costs are a civil
liability. He stated that in a situation where it is something
outside the utility's control, such as a tree entering the
easement that causes a fire, the utility and its ratepayers
should not be looked to for paying those suppression costs.
2:17:39 PM
REPRESENTATIVE KREISS-TOMKINS noted the bill clarifies where
liability ultimately exists. He asked whether there has been an
instance in Alaska in which a utility was held liable for a fire
which started because of vegetation that was outside the
utility's legal right-of-way.
MR. LEMAN offered his belief that there has been at least one
case involving an electric utility from which suppression costs
were sought, but he is unsure whether that was a tree matter.
He pointed out that sometimes when the state seeks suppression
costs it can be quite a while after the fire occurred. He
deferred to Mr. Butler for further response as to whether there
have been recent examples.
MR. BUTLER answered that the instances of property damage seem
to be more likely than the ones for wildland fire, but wildland
fire suppression costs are growing. He added that the concept
of utilities being held responsible for the large suppression
costs of wildland fire is a national trend and he thinks it is
just a matter of time before it gets to Alaska. In general, he
continued, the utilities have tried to do a good job. He said
it's whether vegetation from outside the utility could add
confusion in seeking the suppression cost for a high-expense
fire or a high-damage fire and how a utility might be forced to
defend itself in protracted litigation to get to a resolution.
2:20:56 PM
REPRESENTATIVE KREISS-TOMKINS said his takeaway is that HB 29 is
mostly preemptive and prophylactic, and it is instances in the
Lower 48 that are prompting this legislation. As presented, he
continued, it does seem that electric cooperatives are in a
powerless position that there be vegetation outside their right-
of-way that could potentially foul their lines or cause fire.
He stated he is surprised that the rights-of-way would be
sufficiently narrow in the first place that utilities couldn't
attend to vegetation that is problematic. He asked how it is
that this situation is in place, and nothing can be done about
trees outside the legal right-of way that could take down a
utility's lines and cause wildfires.
MR. BUTLER explained a right-of-way is a portion of property
that allows the utility to run powerlines through that area.
Most rights-of-way are narrow, he further explained, anywhere
between 20 and 30 feet, which means 15 feet on either side of
the line. Many trees grow much taller than the height of the
facility, i.e., the powerline poles, and can easily blow or fall
into that energized facility and cause a fire, he continued. In
many cases on private property, the ability to clean those
rights-of-way from the ground to the sky is limited because
private property owners must grant access and most people don't
prefer to have their trees trimmed or maintained over time. It
is over time that is problematic, he noted, particularly in
Alaska with the spruce bark beetle infestation.
2:23:51 PM
CHAIR CLAMAN invited Mr. Leman to respond to the question from
Representative Kreiss-Tomkins.
MR. LEMAN agreed with Mr. Butler. He noted that when utility
facilities are in another easement, such as a highway easement,
there sometimes isn't much extra room to begin with. In
dedicated utility easements, such as municipal or public
easements, the utility may not even have a choice about the
width. Regarding easements from utility customers, he specified
that most electric consumers in Alaska are served by
cooperatives and most cooperatives require a member to provide a
free easement so service can be delivered. He pointed out that
having those easements on one's private property is a burden
because the trees get cut or the property owner cannot build a
house in the easement or get permission to build a deck or shed
within the easement. So, he continued, there are some good
reasons why easements tend to be as narrow as possible to allow
the utility to install the facilities, get access for them, and
get access for things like guy wires.
2:25:31 PM
REPRESENTATIVE EASTMAN observed page 1 of the bill talks about
civil liability. He inquired whether workers' compensation
claims would, in this case, fall under that civil liability.
MR. LEMAN offered his belief this would not impact workers'
compensation. He stated workers' compensation is a separate
system of compensation for workplace injuries that is apart from
Alaska's civil litigation system.
REPRESENTATIVE EASTMAN requested Mr. Leman to explain how that
would not be interpreted at some point down the line to deny
someone a workers' compensation claim.
MR. LEMAN responded he doesn't believe that that is the intent,
nor would it be the outcome, of the civil liability language in
HB 29 because workers' compensation and the obligation to carry
insurance and for insurers to pay those claims wouldn't be
changed by the bill. He qualified he is not a workers'
compensation lawyer, but said an administrative system is set up
for adjudicating workers' compensation claims. One purpose of
workers' compensation, he explained, is to preclude civil
liability for employers for workplace injuries. Part of the
grand bargain of workers' compensation, he continued, is that in
exchange for not having to fight over causation the worker gets
his or her workplace injuries taken care of.
2:28:03 PM
REPRESENTATIVE EASTMAN stated he would like to hear from someone
on the workers advocate side to confirm that Mr. Leman's
interpretation is their interpretation as well. He explained
that his question stems from having been involved with and
hearing of cases where firefighters have incurred some nasty
injuries dealing with these types of situations. If the
liability is now not on the side of the utility, what other
sidebars are there other than following a vegetation management
plan. He pointed out that a vegetation management plan could be
written that is lacking and only dealt with grass and ignored
trees and if there is a fire dealing with trees and that wasn't
part of their management plan and by the way he is reading this
language the utility would be off the hook. He asked whether
there is somewhere else that spells out all the different things
that must be included in that management plan.
MS. ENKVIST suggested that Mr. Travis Million is the person best
able to answer this question because he provided the committee
with CVEA's draft vegetation management plan.
2:30:06 PM
TRAVIS MILLION, Chief Executive Officer (CEO), Copper Valley
Electric Association (CVEA), related that the CVEA plan gives
criteria regarding rotation of the vegetation management and how
often, and that this is based on what the utility sees prudent
for the different areas it serves. He said the plan also
establishes the methods of clearing the right-of-way, what type
of machine is used, and the width of the right-of-way. That is
the generalized criteria that would be covered in a standard
vegetation management plan, he explained. Some plans will have
more detail than others based on location of the rights-of-way,
he added; for example, some areas of Alaska don't have any trees
or vegetation that the utility needs to worry about.
2:31:07 PM
REPRESENTATIVE EASTMAN posed a scenario in which HB 29 has
passed and a utility's vegetation management plan calls for a
good look at trees every 20 years, but a fire occurs in year 15.
He asked whether the utility would be covered.
MR. MILLION deferred to Mr. Leman to answer the question.
CHAIR CLAMAN added to Representative Eastman's question about
the adequacy of the plan. He asked whether it would go to the
reasonableness of the plan itself if the plan doesn't seem to
have worked, which may or may not come under a question of would
time and circumstances.
MR. LEMAN answered, "Exactly." Responding further to Chair
Claman, he stated HB 29 does not include a set standard for what
would go into a vegetation management plan because there are
such different circumstances across the state. For example, he
continued, there may be no vegetation at all or, if there is
vegetation, then what is the vegetation, how fast does it grow,
and how susceptible is it to damage; so, it would be difficult
to have a one-size-fits-all vegetation management plan. He said
that even without the protection that is being offered by HB 29,
utilities across Alaska already have vegetation management
plans, including Kotzebue where it's hard to come up with a lot
of vegetation that could contact electrical facilities. He
explained that utilities already have these plans because to
assure their operations they must. He stated that no utility is
going to have a plan that says its plan is to have no plan, or
that its plan is to look every 50 years, because they wouldn't
be able to operate. The utilities already have all kinds of
incentives operationally and financially to protect their
transmission lines, he noted. He pointed out that even if
utilities or cooperatives do everything that they can under
their plans that were developed to protect their ratepayers or
member owners, they still can be sued by someone saying they
were not being reasonable enough. He said that tying it to
these vegetation management plans that the utilities already
have will provide a clear standard that the utilities and their
ratepayers can rely on.
2:34:47 PM
REPRESENTATIVE EASTMAN inquired how the committee should
understand the language "entirely within" that is located on
page 1, line 14. He posed a scenario of a stand-alone tree that
is entirely within versus a scenario of a root system that is
partly within and further inquired about the meaning of
"entirely within."
MR. LEMAN replied that the "entirely within" language is
included because there is a difference in how liability would be
evaluated for something the utility could control, vegetation
that is within the easement, and vegetation that is outside of
the easement. The idea, he said, is for situations such as a
tree growing partly inside and partly outside the easement and
whether it is completely within the utility's control given the
utility would probably have to work with the landowner who may
or may not be willing to cooperate. From the perspective of the
utility, the utility would much rather deal with a tree like
that, he continued. Utilities will trim or remove trees that
are outside the easement if the utility thinks the tree is going
to threaten the powerline, he stated, but that requires
cooperation with the landowner that is not always there.
2:37:09 PM
REPRESENTATIVE KURKA asked whether HB 29 would affect the
liability of large property owners like the State of Alaska or
the federal government regarding stewardship of the vegetation
on their property; for example, managing dead trees killed by
spruce bark beetles.
MR. LEMAN responded that HB 29 is a shield, not a sword. He
stated he doesn't think it changes the situation one way or the
other for a utility if the utility thinks its facilities have
been damaged by anyone, whether it is someone crashing a vehicle
into a pole or someone causing a fire. He said the bill is just
about what happens when there is a tree or other form of
vegetation that contacts a powerline.
REPRESENTATIVE KURKA inquired whether it would be appropriate to
consider that in an amendment or in terms of the consequences to
be consistent.
CHAIR CLAMAN asked whether Mr. Leman has any opinion about an
amendment that addresses the liability of adjacent property
owners, whether they be a private property owner or a
governmental property owner.
MR. LEMAN answered that it is an interesting question, but he
does not have an opinion at this time.
2:40:21 PM
REPRESENTATIVE SNYDER posed a scenario in which a tree is
growing on the boundary of the easement or is outside of the
easement and the tree has a limb that is growing into the
easement. She asked whether it is correct that the utility is
not allowed to remove that limb.
CHAIR CLAMAN requested Mr. Million to answer the question
because CVEA has a vegetation clearance plan within its
vegetation practices.
MR. MILLION replied that CVEA's easement or right-of-way is, in
most places, 30 feet wide ground to sky. He said CVEA has
equipment that allows it to stay within its right-of-way and mow
or cut the trees or cut the limbs growing into the easement.
So, he continued, if a tree outside the right-of-way has a limb
coming inside the right-of-way, CVEA has the means to clip it
and that is how CVEA practices it within its utility.
REPRESENTATIVE SNYDER qualified she would not suggest that a
utility would find any value in not continuing the practice of
removing limbs that cross into [the easement]. However, she
stated, it seems the bill's current language that if it's not
completely within the easement could release the utility from
liability should the utility not clear those limbs. She asked
for comment on her interpretation of this possible loophole.
MR. MILLION responded that one of CVEA's main drivers for being
an electric cooperative is reliable, economic, and safe electric
services for members. Even if there was a small loophole, he
said, from a liability standpoint that could affect CVEA's
reliability to its members. So, he continued, just from good
utility practice CVEA would be clearing those regardless of
whether there was a liability loophole just because of the
reliability of the electric service to its members.
2:43:14 PM
REPRESENTATIVE SNYDER, regarding who the liability might be
shifted to and its implications, inquired about the percentage
of the different entities that are adjacent to the easements,
such as the State of Alaska, federal government, and individual
Alaskans.
2:43:56 PM
JOHN BURNS, President & Chief Executive Officer (CEO), Golden
Valley Electric Association (GVEA), stated that there is no
shifting of liability, the utilities are not trying to avoid any
responsibility for that which the utilities control. He said
the clarification being requested here is within the context of
the right-of-way, which is the only area that any utility has
the authority to control. He pointed out that if a utility were
to arbitrarily go on to someone's property and expand its right-
of-way, the utility would be subject to trespass and potentially
treble damages under state statute. He said the legislation
seeks to clarify that a utility is not liable for trees or
vegetation that are outside of its right-of-way that fall into
the utility's right-of-way. He related that GVEA has 2,600
miles of right-of-way easements and has a vegetation management
plan under which it tries to clear on a five-year cycle at a
cost of about $3 million annually. He pointed out that weather
patterns have changed, and Fairbanks is now experiencing heavy
winds, freezing rains in November and December, and a
proliferation of growth on trees. If heavy winds knock a 60-
foot-tall tree that is two feet outside GVEA's 30-foot-wide
easement into GVEA's line and causes a fire, this bill says that
GVEA is not liable for that fire. The bill doesn't say somebody
else is liable for it, he continued; the bill makes it clear
that GVEA would not be liable for that provided it has a
vegetation management plan.
2:48:07 PM
CHAIR CLAMAN opened public testimony on HB 29. He noted that
the only people online for public testimony are those the
committee has already been hearing from and that the committee
understands that all the people online support HB 29. He
invited those online to add testimony if they so wished.
2:49:20 PM
MR. LEMAN indicated he did not have anything to add.
2:49:26 PM
MR. MILLION said everything has been covered on which he had
planned to testify,
2:49:37 PM
MS. ENKVIST stated that several of the points in her testimony
had been covered.
2:49:49 PM
MR. BUTLER clarified he is an attorney, has worked with HEA for
many years, and his practice is dealing primarily with incident
management.
2:50:28 PM
MR. BURNS added that GVEA has a vegetative management plan, that
it is best practices, and that it is always evaluated. He
stated that it is the reasonableness of the plan that is
evaluated. Just because a utility has a plan doesn't make it an
appropriate plan, he said; for example, a plan that says the
utility is not going to have a plan is not a reasonable plan,
and that will always come into question. He reiterated that the
bill is not shifting liability, it is posing liability for that
which a utility has control over.
CHAIR CLAMAN noted Mr. Burns is a licensed attorney as well as
the CEO of GVEA.
MR. BUTLER confirmed he is still a licensed attorney.
2:51:42 PM
CHAIR CLAMAN closed public testimony on HB 29 after ascertaining
no one else wished to testify.
2:51:58 PM
REPRESENTATIVE EASTMAN said he doesn't see any exception in the
bill for negligence. He asked whether the bill would preclude a
utility being held liable for a claim of negligence on the part
of the utility.
MR. BURNS responded that the answer is no from the perspective
that if a utility fails to do something which it should have
done, which is within the utility's control, then the utility
would not be shielded from negligence. From the standpoint of a
utility's right-of-way, side to side clearing, he said he does
not see the bill shielding utility companies from basic
negligence. The bill says utility companies are not liable for
that which they cannot control, he continued, and if a utility
can control and fails to do it, then the utility is negligent.
MR. LEMAN responded that HB 29 makes it clearer what the legal
standard is that the utility is going to be held to. In the
absence of HB 29, he said, the situation is that lawyers get to
argue about whether a utility was negligent. He said HB 29
makes it clearer for landowners and the utilities about when a
utility is going to be liable for a wildfire that resulted from
vegetation contacting the facilities. If that vegetation is
outside the easement the utility is not going to be liable, he
continued, and if the utility is liable a look will be taken at
the vegetation management plan and when the utility follows it.
He further stated that in the industry's mind, the bill is
providing more certainty and more clarity than would be had with
a negligence standard, which is very general and with lots of
room for lawyers to argue about what it means.
2:55:13 PM
REPRESENTATIVE EASTMAN said a question that might be asked later
is whether there is anything wrong in pulling out liability
after negligence or gross negligence here since that doesn't
seem to be what the bill is about. He said there is also the
question of timing. For example, he noted, negligence can occur
after the fire has already happened and so it's not a question
of negligence on the vegetation management plan. He related
that there have been times when [firefighters] receive calls
about sparking from vegetation contact but the fire may not
start until several days later. He inquired about the point at
which the liability happens.
MR. LEMAN answered that he would turn back to the language of
the bill - if the tree that eventually caused the fire by
contacting the facility is outside the easement it's got the
standard in there; if it's inside the easement it's the other
standard. He maintained it would be unlikely to have a
situation where vegetation sits for a week on a powerline
without that becoming obvious operationally and something that
somebody would deal with quickly.
2:57:24 PM
REPRESENTATIVE VANCE stated the committee may need to speak to
its legislative intent about what is a reasonable management
plan. She observed that HB 29 specifically speaks to vegetation
and the liability. She asked whether there are instances of
liability that involve a buildup of ice which causes damage or
possible flooding that is not being addressed.
MR. BURNS replied he is not aware of that type of incident in
GVEA's service territory.
MR. BUTLER responded he is not aware of those types of
circumstances which arguably are an act of God or force majeure
beyond the ability of the utility to practically manage for. He
said utilities manage their facilities for reliability and
safety; if something that was outside the control of the utility
caused the problem, then that would probably be beyond the scope
of what this bill is trying to do. He offered his understanding
that HB 29 is trying to just make clear that if a utility adopts
best practices and has an effective vegetation management plan
that the lines of responsibility and liability are clear and not
as ambiguous as they are now.
2:59:48 PM
CHAIR CLAMAN held over HB 29.
3:00:26 PM
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 3:00 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB 109 v. A 2.22.2021.PDF |
HJUD 3/22/2021 1:30:00 PM HJUD 3/24/2021 1:30:00 PM |
HB 109 |
| HB 109 Sponsor Statement v. A 3.20.2021.pdf |
HJUD 3/22/2021 1:30:00 PM HJUD 3/24/2021 1:30:00 PM |
HB 109 |
| HB 109 Additional Document - A Sunset Review of the Board of Governors of the Alaska Bar Association 6.9.2020.pdf |
HJUD 3/22/2021 1:30:00 PM HJUD 3/24/2021 1:30:00 PM |
HB 109 |
| HB 109 Statement of Zero Fiscal Impact 3.21.2021.pdf |
HJUD 3/22/2021 1:30:00 PM HJUD 3/24/2021 1:30:00 PM |
HB 109 |
| HB 29 v. A 2.18.2021.PDF |
HJUD 3/22/2021 1:30:00 PM HJUD 3/29/2021 1:00:00 PM HJUD 4/9/2021 1:00:00 PM HJUD 4/16/2021 1:00:00 PM |
HB 29 |
| HB 29 Sponsor Statement 3.22.2021.pdf |
HJUD 3/22/2021 1:30:00 PM HJUD 3/29/2021 1:00:00 PM HJUD 4/9/2021 1:00:00 PM HJUD 4/16/2021 1:00:00 PM |
HB 29 |
| HB 29 Supporting Document - Electric Utility Liability Information 3.22.2021.pdf |
HJUD 3/22/2021 1:30:00 PM HJUD 3/29/2021 1:00:00 PM HJUD 4/9/2021 1:00:00 PM HJUD 4/16/2021 1:00:00 PM |
HB 29 |
| HB 29 Supporting Document - APA Letter 3.1.2021.pdf |
HJUD 3/22/2021 1:30:00 PM HJUD 3/29/2021 1:00:00 PM HJUD 4/9/2021 1:00:00 PM HJUD 4/16/2021 1:00:00 PM |
HB 29 |
| HB 29 Supporting Document - CVEA Letter 3.9.2021.pdf |
HJUD 3/22/2021 1:30:00 PM HJUD 3/29/2021 1:00:00 PM HJUD 4/9/2021 1:00:00 PM HJUD 4/16/2021 1:00:00 PM |
HB 29 |
| HB 29 Supporting Document - GVEA Letter 3.16.2021.pdf |
HJUD 3/22/2021 1:30:00 PM HJUD 3/29/2021 1:00:00 PM HJUD 4/9/2021 1:00:00 PM HJUD 4/16/2021 1:00:00 PM |
HB 29 |
| HB 29 Supporting Document - CVEA Vegetation Management Draft March 2021 3.22.2021.pdf |
HJUD 3/22/2021 1:30:00 PM HJUD 3/29/2021 1:00:00 PM HJUD 4/16/2021 1:00:00 PM |
HB 29 |
| HB 29 Fiscal Note LAW-CIV 3.12.2021.pdf |
HJUD 3/22/2021 1:30:00 PM HJUD 3/29/2021 1:00:00 PM HJUD 4/9/2021 1:00:00 PM |
HB 29 |