Legislature(2017 - 2018)BARNES 124
02/28/2018 01:00 PM House RESOURCES
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| Audio | Topic |
|---|---|
| Start | |
| Presentation(s): Alaska Minerals Commission | |
| HB355 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| *+ | HB 355 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
HOUSE RESOURCES STANDING COMMITTEE
February 28, 2018
1:03 p.m.
MEMBERS PRESENT
Representative Andy Josephson, Co-Chair
Representative John Lincoln, Vice Chair
Representative Harriet Drummond
Representative Justin Parish
Representative Chris Birch
Representative DeLena Johnson
Representative George Rauscher
Representative David Talerico
MEMBERS ABSENT
Representative Geran Tarr, Co-Chair
Representative Mike Chenault (alternate)
Representative Chris Tuck (alternate)
COMMITTEE CALENDAR
PRESENTATION(S): ALASKA MINERALS COMMISSION
- HEARD
HOUSE BILL NO. 355
"An Act relating to the crime of criminally negligent burning;
relating to protection of and fire management on forested land;
relating to prohibited acts and penalties for prohibited acts on
forested land; and providing for an effective date."
- HEARD & HELD
PREVIOUS COMMITTEE ACTION
BILL: HB 355
SHORT TITLE: FIRE;FOREST LAND; CRIMES;FIRE PREVENTION
SPONSOR(s): REPRESENTATIVE(s) GUTTENBERG
02/16/18 (H) READ THE FIRST TIME - REFERRALS
02/16/18 (H) RES, JUD
02/28/18 (H) RES AT 1:00 PM BARNES 124
WITNESS REGISTER
LANCE MILLER PhD., Chair
Alaska Minerals Commission
Division of Economic Development
Department of Commerce, Community & Economic Development; Vice
President, Natural Resources
NANA Regional Corporation
Anchorage, Alaska
POSITION STATEMENT: Co-provided a PowerPoint presentation
entitled, "Alaska North to Opportunity Report of the Alaska
Minerals Commission," dated January 2018.
ROB RUTHERFORD, Member
Alaska Minerals Commission
Division of Economic Development
Department of Commerce, Community & Economic Development; Owner
Alaska Earth Sciences
Anchorage, Alaska
POSITION STATEMENT: Co-provided a PowerPoint presentation
entitled, "Alaska North to Opportunity Report of the Alaska
Minerals Commission," dated January 2018.
REPRESENTATIVE DAVID GUTTENBERG
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Speaking as the sponsor, introduced HB 355.
JOHN "CHRIS" MAISCH, State Forester; Director
Division of Forestry
Department of Natural Resources
Fairbanks, Alaska
POSITION STATEMENT: Testified in support during the hearing of
HB 355.
ANNE NELSON, Senior Assistant Attorney General
Natural Resources Section
Civil Division(Anchorage)
Department of Law
Anchorage, Alaska
POSITION STATEMENT: Answered questions during the hearing of HB
355.
ACTION NARRATIVE
1:03:10 PM
CO-CHAIR ANDY JOSEPHSON called the House Resources Standing
Committee meeting to order at 1:03 p.m. Representatives
Josephson, Birch, Drummond, Johnson, Parish, Rauscher, Talerico,
and Lincoln were present at the call to order.
^PRESENTATION(S): ALASKA MINERALS COMMISSION
PRESENTATION(S): ALASKA MINERALS COMMISSION
1:04:02 PM
CO-CHAIR JOSEPHSON announced that the first order of business
would be a presentation by the Alaska Minerals Commission.
1:04:15 PM
LANCE MILLER PhD., Chair, Alaska Minerals Commission (AMC),
Division of Economic Development, Department of Commerce,
Community & Economic Development, informed the committee he
works for NANA Regional Corporation.
1:04:46 PM
ROB RUTHERFORD, Member, AMC, informed the committee he is the
owner of Alaska Earth Sciences, which is a consulting firm to
the minerals and energy industries.
DR. MILLER introduced a PowerPoint presentation entitled,
"Alaska North to Opportunity Report of the Alaska Minerals
Commission." He pointed out all the members of the commission
are appointed thus the commission is not a trade group.
Further, seats on the commission are dispersed by region and
industry, in order to provide broad coverage of the industry and
its related issues. The current report covers the past year and
the membership of the commission has changed (slides 1 and 2).
MR. RUTHERFORD added the role of the commission is primarily to
look for constraints, or other problems that address the
minerals system, and to support the efforts of the legislature
and state agencies (slide 1).
DR. MILLER said the topics for discussion would be AMC's top
priority, state priorities, federal priorities, and an industry
overview of projects (slide 3). The first priority is the
establishment of a stable state fiscal policy, which is needed
so that businesses can attract capital for long-term investment
in the industry, and upon which is based AMC's recommendations
for action (slide 5).
MR. RUTHERFORD stressed all industries need consistency in
policies with a long-term view toward issues such as taxes and
permitting.
DR. MILLER continued to the second priority: reallocate
portions of the state mining license tax to communities, while
precluding targeted local severance taxes. He explained
communities need to feel they are benefitting from development
within their jurisdiction, and this can be accomplished by [the
mining] company, or by returning some of the money collected in
mining license taxes to a community impacted by development,
thereby avoiding local severance taxes (slide 6).
1:10:09 PM
MR. RUTHERFORD said the third priority is to urge for strong
legislative support for the minerals industry and for state
agencies. He said the Department of Environmental Conservation
(DEC), the Department of Natural Resources (DNR), and other
agencies, have excellent staff and services. Further, AMC urges
the administration to let large companies know Alaska is open to
business (slide 7).
REPRESENTATIVE JOHNSON directed attention to the fourth priority
and read as follows [original punctuation provided]:
Encourage the Governor's Administration to challenge
ballot initiatives that seek to regulate natural
resource development
REPRESENTATIVE JOHNSON asked whether AMC has taken a position on
[HB 199, introduced in the Thirtieth Alaska State Legislature].
DR. MILLER explained AMC believes the [Yes for Salmon ballot
initiative] to be detrimental to all rural economic development.
He said AMC applauds the administration for its challenge of
said initiative, and questions whether the initiative process is
the correct approach for making natural resource policy
decisions, instead of the state relying on state agencies and
staff (slide 8).
CO-CHAIR JOSEPHSON advised a change in the initiative process
requires changes to the Alaska State Constitution.
DR. MILLER agreed, and continued to the fifth priority: address
key state regulations governing water use. He said a waterway
designated as Tier 3 water quality - which is a waterway with no
degradation whatsoever - should be recommended by agencies, but
designated by the legislature, in order to "take it out of the
hands of other special interest groups"; similarly, instream
flow reservations for water should be granted to the State of
Alaska and not to a nongovernmental agency, or to a private
interest group, because this is an appropriation of state
resources (slide 9).
1:15:10 PM
MR. RUTHERFORD remarked:
... it's a balance. Obviously, at times industry has
to be constrained, so if we wanted a[n] ... instream
flow restriction, then we could apply for one, but as
a balancing act, it seems like the agencies should be
the ones who have the final say.
CO-CHAIR JOSEPHSON recalled public opposition prevented the
passage of [HB 77, introduced in the Twenty-Eighth Alaska State
Legislature].
1:16:05 PM
DR. MILLER pointed out the U.S. Environmental Protection Agency
(EPA) is directing the state to formulate specific water quality
standards for about 96 elements and chemicals; national human
health criteria limit the amount of fish that can be consumed
per day to about 6.5 grams of fish, including salmon. He
explained metals end up in fish, and salmon and marine mammals
are included in the amount of fish that can be consumed,
although salmon live much of their lives in saltwater, which may
make an influence on the metal intake of mammals and fish. He
remarked:
... what it could mean to water quality is that ... if
you higher the consumption rate of the fish you intake
... if you go by these specific criteria, for the
amount of, say selenium, then you're going to have to
lower ... the detection limits for the water quality
standards, O.K? It basically may make it impossible
to, to permit a wastewater treatment plant.
DR. MILLER advised he brought the issue to the committee's
attention because it is intertwined with the [water]
antidegradation issue.
MR. RUTHERFORD urged for the committee to regard opinions from
DEC staff on this issue.
DR. MILLER added, "The human health criteria are really intended
to protect the public from chemical uptake through drinking
water, fish consumption, and other exposure routes for
waterborne chemicals. And the focus has been on fish
consumption."
REPRESENTATIVE JOHNSON surmised fish absorb more metals in the
ocean and questioned whether this has been proven by science.
DR. MILLER expressed his understanding EPA's original limit for
the daily consumption of fish was 175 grams, including salmon,
and the limit was reduced due to the influence of special
interest groups.
1:20:35 PM
REPRESENTATIVE JOHNSON asked whether mercury levels are not a
problem in Alaska salmon.
DR. MILLER explained the issue is not the actual metal content
but the level of fish consumption.
DR. MILLER, in response to Representative Drummond, said the
current rate is 6.5 grams per person, per day, excluding salmon.
1:22:13 PM
REPRESENTATIVE DRUMMOND questioned the validity of the "numbers"
and pointed out 6.5 grams is less than 0.25 of an ounce. She
agreed there are minerals found in fish, seafood, breastmilk,
and other places, which is a valid concern, and urged for
further review of the science by representatives of all the
relevant disciplines, such as health agencies, minerals
producers, and others.
REPRESENTATIVE PARISH inquired as to research into the
correlation between the minerals found in fish and the heavy
metals found in their stream of origin.
MR. RUTHERFORD explained the research tends to be focused on
specific areas because of proposed development, a fishery, or
"an industrial thing going on." For example, there is data from
the Red Devil area relative to mercury in the streams flowing
into the Kuskokwim River; however, it is rare that a project
would have baseline data collected prior to development. He
concluded there is insufficient data.
1:25:07 PM
MR. RUTHERFORD continued to the sixth priority: ensure the
state defends the mining reclamation bond pool. He explained
miners put money into a [State of Alaska DNR State Wide Bond
Pool] fund which covers a large group of miners for poor
performance on reclamation. The bond pool was established for
small mines - such as placer mines - and has worked very well,
thus AMC seeks to maintain the state bond pool for small mines.
However, the U.S. Bureau of Land Management (BLM) has suggested
a different method of bonding for small mines. He pointed out
in the last 25 years, the bond pool has covered several hundred
operations per year, and there has never been an incident that
required use of the bond pool (slide 10).
REPRESENTATIVE RAUSCHER asked whether funds are returned if the
bond pool is not used.
MR. RUTHERFORD surmised the pool is maintained at a certain
level thus contributions are adjusted each year, but money is
not returned to the individual miners.
DR. MILLER opined - because Alaska contains large amounts of
federal lands and wetlands - it is important for the
administration and the legislature to work with the federal
government. He continued to the seventh priority: waters of
the U. S. should be defined in accordance with the intent of the
Clean Water Act (CWA). [AMC] supports monitoring federal
legislation that defines Waters of the United States (WOTUS),
according to the Clean Water Act (slide 11).
MR. RUTHERFORD stated BLM Resource Management Plans (RMPs) are a
concern to AMC because during the Obama era, BLM used RMPs to
close areas to further development. For example, a management
tool within RMPs, Area of Critical Environmental Concern (ACEC),
was used to lock up additional land in the Central Yukon
Resource Management Plan, which he characterized as overreaching
by BLM. [AMC] seeks to ensure the state recognizes this issue,
as does the Alaska congressional delegation, and stressed these
lands are multiple use areas (slide 12). He cautioned regarding
the consideration of outdated public land orders and federal
land withdrawals [priorities 9 and 11], AMC recommends the state
negotiate with BLM to "free those areas up to whatever multiple
use[s] they may have. In many areas there is substantial
mineral potential so these areas, [within] public land orders,
currently locked up in there, or within withdrawals ... we need
to keep the pressure on to BLM to free those up" (slides 13 and
15).
1:30:42 PM
DR. MILLER directed attention to priority 10: ensure the state
defends Alaska's navigable waters and access corridors. He said
it is critical to have access to state lands and to address
navigability issues, and urged the administration and the
legislature to continue to secure access corridors to public
land, and to Native corporation and other private land (slide
14).
DR. MILLER directed attention to a slide of a map entitled,
"Mining Activity in Alaska," which illustrated producing mines,
advanced exploration projects, other exploration projects, and
communities with mining industry employees. Alaska has five
metal mines and one coal mine, and he said 7,000-15,000
evaluations of prospects occurred to advance the six mines in
Alaska to production; in fact, the chance of an occurrence being
developed into a mine is less than 1.0 percent. A slide
entitled, "Alaska mineral development timelines & investment"
listed successful mines, those in process, and two that are
closed. He pointed out the difference between oil and gas
development and mining development in Alaska is that to advance
a project to a decision to mine takes about sixteen years and an
investment of $250 million to $300 million. A slide entitled,
"Typical project stages" illustrated the stages of mineral
development from exploration to construction, and he said this
is why mining companies must have a "long view." He provided a
slide entitled, "Competing for Capital on a global stage -
depends upon project stage" and pointed out capital that is
needed at the exploration level is high risk/high return,
funding is erratic, and the political/regulatory environment is
critical. At the final feasibility stage, return on capital
becomes more predictable and with lower risk, financing is more
available, and the political/regulatory environment remains
critical. Two graphs provided by Orion Resource Partners - a
private equity group - illustrated significant declines in
global exploration budgets, from a high in 2012, and a decline
in capital expenditures, from a high in 2009. In Alaska, total
exploration dollars decreased from $300 million in 2012, to less
than $50 million, and currently are at $90 million, following
the global trend. A slide entitled, "Commodity prices over
time:" illustrated the cyclicity of metals on the chart of a
commodity index dated from 1749 to 2009. Dr. Miller stated
markets fluctuate; for example, he provided a slide entitled,
"Nominal & Real 2017$Zinc Price:" and noted zinc is an important
metal export for Alaska. Red Dog Mine came into production in
1989, and since then there have been three spikes in price, so
because of periods of low prices, Red Dog Mine took fourteen
years to pay back its capital, even though its feasibility study
predicted the payback period would be three to seven years.
1:36:47 PM
REPRESENTATIVE RAUSCHER questioned whether planing for a mine
could include the intervals between the spikes and lows in
price, which follow a pattern.
DR. MILLER agreed that's a good idea, when possible. Overall,
cycles last about eight years. For example, when the price of
zinc is up, many explore to fill the deficit in supply; after
mines expand and new mines open, the supply increases and the
price goes down. Also, the timeline of development, metal
cycles, availability of capital, and permitting all create
chaos. An operator searching for base metals seeks a deposit
that will produce through at least two cycles.
REPRESENTATIVE RAUSCHER inquired as to the cause of the highest
spikes in price.
DR. MILLER credited the fundamentals of supply and demand, and
sometimes the influence of world events. He directed attention
to a slide entitled, "Zn example-price/mental inventory" which
illustrated zinc price and inventory, noting as inventory
declined, price increased. In 2007, metal stocks were low,
which explains the spike in price shown on the previous slide.
A slide entitled, "Global Demand Growth will Continue Even at
Lower Rates" was a pie chart of the global demand for zinc and
the global zinc consumption rate. He noted global consumption
is increasing; the per capital annual consumption of zinc
worldwide is four pounds. Dr. Miller described types of mines
and informed the committee that placer mines collectively make
up the equivalent of one other large mine in Alaska, are mostly
gold mines, and represent a family's livelihood.
Characteristics of other mining companies in Alaska are:
Junior mining companies
• main explorers and discoverers of new deposits
• small market capitalization
• dependent on equity markets
• high risk
• examples of junior mining companies are Nova Gold,
Trilogy Metals, Millrock, Solitario, Constantine,
International Tower Hill, and Northern Dynasty
Mid-tier mining companies
• operators
• fairly large market capitalization
• have access to public money, debt financing banks, and
royalty firms
• examples of mid-tier mine companies are Hecla Mining,
Red Dog Mine, Greens Creek, Usibelli Coal, Hudbay, and
Lundin
Major mining companies
• larger projects
• vertically integrated through transportation and
fabrication, such as smelting
• large market capitalization
• low-cost debt
• global
• examples of major mining companies are TECK, Barrick,
Anglo, Rio Tinto, BHP, MMG, Glencore, and Kinross
DR. MILLER said AMC is not making suggestions related to
infrastructure, but wishes to provide information on other
jurisdictions. For example, Canada has funded three large
initiatives: Yukon Infrastructure program, at a cost of CAD
$360 million; BC Hydro transmission line, at a cost of CAD $737
million; Ontario road system, at a cost of CAD $900 million. He
explained the foregoing projects were in support of mining or
rural development; however, in Alaska, mining companies
typically self-fund and build their own infrastructure that has
public benefits, such as the Copper River Railway and the DeLong
Mountain Transportation System. Other mining activities were
illustrated on two maps that showed in 2012, there were over 120
communities with mining industry employees, and in 2014, there
were over 50 communities with mining industry employees. He
concluded the mining industry provides more local jobs to the
Interior than any other industry. For an example of benefits to
the state, he related NANA Regional Corporation received $1.7
billion in royalties, and as of last year has distributed over
$1 billion in Alaska Native Claims Settlement Act Sections 7(i)
and 7(j) natural resource revenue distributions to the other
Alaska Native corporations.
1:45:12 PM
REPRESENTATIVE PARISH returned attention to communities with
mining industry employees, and inquired as to the percentages of
resident and nonresident mining employees in each community -
between 2012 and today - and how many jobs moved out of state.
DR. MILLER offered to provide the requested information - he
said he was sure the number of employees has increased since
2014 - and added the percentages of resident and nonresident
employees vary between each mine.
MR. RUTHERFORD said the Alaska's Minerals Industry 2016 report
by the Division of Geological & Geophysical Surveys, DNR, is a
good source of information. He remarked:
We did, earlier, take the numbers of the actual
production and the actual exploration funds and as so
... I'm not sure if there is a good correlation, but
obviously, the more work that's done, the more dollars
changing hands, the more people are working. So, it
looks like in the last, say, three-year period ...
whereas exploration dollars have bottomed out and come
back slightly, the production side has leveled and ...
dropped just a little bit, but stayed fairly high:
$2.5 billion ... for total dollars.
DR. MILLER turned attention to Alaska's position in global
mining and a slide provided by the Fraser Institute entitled,
"Global Mining Investment Attractiveness Ranking." Of 91
jurisdictions, Alaska ranks 10th overall because of its mineral
potential and geology, but when rated on uncertainty of existing
regulations, Alaska ranks 41st. He said AMC's recommendations
are to address the low ranking on uncertainty of existing
regulations.
CO-CHAIR JOSEPHSON related South America and Africa are
continents that were exploited in some ways during recent
history. He posited, because of economic pressure and civil
war, both continents would be more attractive to industry for
exploration and development. For example, a mine in South
Africa may be less regulated than a mine in Alaska, and
therefore more inviting.
1:50:06 PM
DR. MILLER opined from his experience in South Africa and
Russia, the idea a mining company is attracted by less
regulation is not valid - except possibly by an explorer -
because a major mining company has a global image and its stock
may be affected by negative reports in social media; further,
the cost of capital may be affected by certain practices
identified by the Dow Jones Sustainability Index. In further
response to Co-Chair Josephson, he explained the Dow Jones
Sustainability Index is an index of companies that are viewed as
engaged in best practices, and thereby have lower cost of
capital financing.
CO-CHAIR JOSEPHSON clarified for inclusion in said index, [Teck
Resources] must have qualified certain standards.
DR. MILLER said correct. He gave an example of a company
terminating a partnership after being held responsible for the
partner's transgression. Turning to a local story, he told of
the 1982 Haines Consensus and subsequent legislation that
created the Chilkat Bald Eagle Preserve and the Haines State
Forest Management Area in Haines. He pointed out the
signatories of the Haines Consensus included a wide variety of
interest groups, and concluded working together to solve an
issue can result in both development and preservation.
CO-CHAIR JOSEPHSON questioned whether the consensus is abided
by.
DR. MILLER said it is. He stated the proposed Constantine Metal
[Palmer Project] mineral deposit, located in the area, was known
at the time of the consensus, and described the slow pace of the
project.
REPRESENTATIVE LINCOLN asked what AMC expects from the
legislature in response to its presentation.
DR. MILLER was unsure. The members of AMC are volunteers who
prepare its report; he suggested legislators contact members to
garner support regarding their issues of interest.
1:55:35 PM
REPRESENTATIVE PARISH urged the members of AMC to advocate for
its top priority: the establishment of a stable state fiscal
policy.
REPRESENTATIVE BIRCH lauded AMC's efforts.
HB 355-FIRE;FOREST LAND; CRIMES;FIRE PREVENTION
1:56:29 PM
CO-CHAIR JOSEPHSON announced that the final order of business
would be HOUSE BILL NO. 355, "An Act relating to the crime of
criminally negligent burning; relating to protection of and fire
management on forested land; relating to prohibited acts and
penalties for prohibited acts on forested land; and providing
for an effective date."
1:57:12 PM
REPRESENTATIVE DAVID GUTTENBERG, Alaska State Legislature,
sponsor of HB 355, paraphrased from the following sponsor
statement [original punctuation provided]:
Most of the current Division of Forestry fire
prevention laws were enacted in 1961. HB 355 updates
and modernizes the wildland fire prevention and
enforcement statutes, with the ultimate goal of
reducing the number of human caused fires in Alaska.
This bill reduces risks to human life, loss of homes
and structures, extensive property damage, and fire
suppression costs.
Current burning offenses are unclassified misdemeanors
that require a mandatory court appearance and are
punishable by a fine of between $100-$1,000 or 10 days
to 6 months imprisonment. The bill replaces the
current system with a tiered prevention and
enforcement structure, similar to fish and game
violations. Violations of regulations adopted under
the bill that would be "bail schedule" offenses,
allowing DOF prevention officers to issue citations
for violations of these offenses. The bill also gives
state fire prevention officers more flexibility in
responding to burning violations and investigating
wildland fires. "Knowing" violations of the bill
provisions would be a class A misdemeanor, and
resolution would require a mandatory court appearance.
The bill also addresses enforcement gaps in the
existing arson and criminally negligent burning
statutes in AS 11.46, makes technical changes to
clarify the right of state fire prevention officers to
enter land to investigate wildland fire and
establishes a misdemeanor offense of interfering with
this right of access, and corrects potentially
conflicting statutory provisions ..
Over the last 15 years, the length of the wildland
fire season and amount of acreage burned each year-
especially in and near communities-has increased
dramatically. The statutes and regulations that guide
our prevention and management of wildland fire need to
keep pace with these changes which is why I hope you
will join me in supporting this bill.
REPRESENTATIVE RAUSCHER asked how provisions in the bill would
affect access to private land.
REPRESENTATIVE GUTTENBERG deferred to legal counsel.
1:59:53 PM
JOHN "CHRIS" MAISCH, State Forester and Director, Division of
Forestry (division), Department of Natural Resources (DNR),
expressed his support for HB 355, which would reduce human
caused wildland fires and human risk. The bill modernizes
existing statute in two areas: to allow firefighters to have a
tiered approach to enforcement when needed, and to expand the
education aspect of the division's fire prevention program. He
explained Fire Prevention Officers are firstly firefighters and,
secondly, wildland fire investigators who determine the cause
of, and responsibility for, a wildland fire and assess fiscal
recovery - when appropriate - through criminal and civil legal
proceedings. Fire Prevention Officers do not carry guns and are
trained to withdraw when necessary and seek assistance from
Alaska State Troopers, Department of Public Safety. In response
to Representative Rauscher, he said the division already has in
statute the right to enter land for the suppression, control,
and prevention of wildland fire, thus the bill seeks to clarify
that the division also has the right to enter land for
investigative purposes. For example, after a fire starts on
private land, part of the control and suppression efforts are to
enter the land to determine the point of origin, which may
include following the path of the fire to other private land to
investigate the source and cause. Mr. Maisch said HB 355 would
clarify "that investigative piece is included in the terminology
that we used in the previous statute."
REPRESENTATIVE RAUSCHER expressed his understanding the bill
would mean private property owners give up their right to give
permission to the division to investigate [on their property].
MR. MAISCH stated AS 41.15.040 provides the division the right
to enter land to prevent, suppress, or control a wildland fire
or a destructive agent. Further, AS 41.15.950 allows police
officers, and any DNR employees who are authorized by the
commissioner, to request a warrant from an officer or court of
competent jurisdiction. He restated in an immediate situation
during a fire, the division has the right to enter private land;
after control of a fire, the division must request a warrant to
investigate.
2:05:09 PM
REPRESENTATIVE RAUSCHER surmised after a fire is out, the bill
allows access without seeking permission through a court order.
MR. MAISCH clarified after the fire is controlled, the division
does not have authority to enter land without permission, and if
access were denied by the landowner, a search warrant would be
necessary. In further response to Representative Rauscher, he
said the foregoing statement applies to current statute and
after the change proposed by HB 355. In response to Co-Chair
Josephson, he said the clarification occurs in the bill [on page
2, line 14] in Section 3, with the addition of the word
"investigating."
REPRESENTATIVE GUTTENBERG gave an example of a situation in
which an investigator was not present during a fire and was
denied permission for access afterward: A warrant or a court
order would be necessary.
REPRESENTATIVE RAUSCHER asked who currently completes an
investigation.
MR. MAISCH said Division of Forestry employees are trained to
investigate wildland fire origin and cause; for more complicated
fires and those involving structures, investigators are aided by
the office of the Alaska State Fire Marshal/Director, Division
of Fire and Life Safety, Department of Public Safety. Fire
investigators staff each of the division's area offices.
REPRESENTATIVE RAUSCHER restated his question as to the purpose
of proposed Section 3.
MR. MAISCH further explained the purpose is to clarify "that
investigating a fire's cause and origin is also covered under
this statute." He deferred to the Department of Law (DOL).
2:10:03 PM
ANNE NELSON, Senior Assistant Attorney General, Natural
Resources Section, Civil Division(Anchorage), DOL, advised the
proposed bill would not impact the constitutional law that
applies to investigative searches and privacy protections, but
clarifies the activities undertaken by the division in the
investigation of a fire, or when responding to an active fire.
REPRESENTATIVE RAUSCHER restated his question.
MR. MAISCH further explained the investigation aspect - that is
implied in the prevention language of the existing statute - is
clarified.
REPRESENTATIVE BIRCH expressed his understanding if a
firefighter is fighting a fire on property and views items
perceived to be the cause of the fire, the bill would allow
those items to be used in court at a later date, which is
reasonable. He opined the bill is reasonable and provides
clarity.
REPRESENTATIVE LINCOLN questioned whether the bill applies to
fires that have been suppressed, or only when firefighters are
actively fighting a fire. He asked, "but is this also the
expectation that once a fire is suppressed, and you're going
back to the scene to investigate further, at that point would
you need to get the, a prior approval or a warrant ...?"
2:13:49 PM
MR. MAISCH answered after a fire is out, when the division has
permission from the landowner, it can proceed with an
investigation; if not, it would seek a warrant to continue the
investigation. Mr. Maisch continued to the most important
aspect of the bill, which provides the division a three-tier
enforcement tool to address violations of burn regulations.
Currently, the process to deal with minor infractions is
cumbersome, therefore, the division typically issues warnings
except for the most egregious offenses. HB 355 provides the
division with three tiers of responses: firstly, a ticket with
a predetermined bail schedule for an infraction; secondly, a
class A misdemeanor offense; thirdly, B and C felony offenses.
In addition, the bill clarifies two types of firefighting
techniques - more commonly referred to as burnouts or backburns
- under the civil immunity statute.
2:16:41 PM
CO-CHAIR JOSEPHSON asked whether a lawsuit has been brought
against the division or against firefighters.
MR. MAISCH recalled there was a lawsuit challenging
discretionary immunity related to the Miller's Reach Fire [that
burned near Houston, from 6/2/96 to 6/15/96]. He added, "So,
since that time we've never had any specific challenge on the
discretionary immunity ... unless we do something that's beyond
our training or knowledge base, and then, of course, we can be
held negligent, just like anybody else." Returning attention to
the bill, he noted the bill also seeks to replace terminology
that is no longer in use, and brings the statute into a modern
format.
REPRESENTATIVE GUTTENBERG assured the committee a property owner
would not lose any constitutional rights; after a fire, an
investigator still needs permission, or a court order, to access
[private] property. He reviewed other aspects of HB 355.
CO-CHAIR JOSEPHSON pointed out AS 41.15.150 - which imposes one
to ten years of imprisonment in the case of malicious or wanton
setting of a fire - is deleted by the bill. He asked whether
this sort of misconduct is still addressed [within provisions of
HB 355].
MR. MAISCH said yes; that type of offense would be raised to a
felony or arson charge, or a misdemeanor, depending on the
gravity of the offense. In further response to Co-Chair
Josephson, he confirmed there is still a differentiation between
accidental and wanton/malicious offenses.
REPRESENTATIVE PARISH directed attention to the bill on page 2,
beginning on line 30 and continuing to page 3, line 1, which
read as follows [in part]:
Sec. 41.15.060. Permits. The commissioner shall, by
regulation, prescribe the conditions of and the manner
for obtaining a permit for the setting of fires, use
of burning devices, and other activities and uses of
land that increase fire danger [.FAILURE TO OBTAIN THE
REQUIRED PERMIT, OR VIOLATION OF A CONDITION OF THE
PERMIT IS A MISDEMEANOR].
REPRESENTATIVE PARISH asked whether fires in a burn barrel are
affected by the foregoing change.
2:21:44 PM
MR. MAISCH said no; however, burn barrels and other outdoor
fires are required to have a permit during fire season, and
permittees must contact the division to verify it is a safe day
for open burning in their area.
CO-CHAIR JOSEPHSON noted failure to get a permit is currently a
misdemeanor, and questioned how this is changed by the bill.
MR. MAISCH stated currently, one who is burning without a permit
would get a warning, except for a repeat offender, who may be
issued a violation at the option of the prevention officer.
After passage of HB 355, burning without a permit would be a
minor offense listed on the bail schedule, and a repeat offender
could be issued a citation. In further response to Co-Chair
Josephson, he said a misdemeanor would be issued for a more
serious offense. He deferred to Ms. Nelson.
CO-CHAIR JOSEPHSON surmised HB 355 reduces a penalty because the
offense is more manageable through a bail schedule.
2:25:08 PM
MS. NELSON added violations of any of the provisions from
Section 6 through new Section 41.15.140, are a class A
misdemeanor or either a bail schedule offense - resolved by the
payment of a fine - or a mandatory court appearance misdemeanor.
For example, Section 6 would make burning without a permit a
misdemeanor; however, depending on regulations and the proposed
bail schedule, sentences could be resolved by the payment of
bail and would not be criminal in nature.
REPRESENTATIVE TALERICO suggested the intent of changing from
violations to a noncriminal bail schedule is so prevention
officers can respond appropriately to an offense; in fact, the
maximum punishment for a class A misdemeanor can be 30 days in
jail and a fine of $25,000.
MS. NELSON agreed. She said the bail schedule in the bill has
an upper limit of $5,000, and a violation approaching a criminal
penalty would require a mandatory court appearance. Ms. Nelson
characterized bail schedule offenses as the first tier of
prevention and "light enforcement" in response to minor
incidents.
CO-CHAIR JOSEPHSON questioned whether the court system added
violations of the fire code to the bail schedule.
MS. NELSON advised the Alaska Supreme Court needs specific
statutory legislative authority to establish the bail schedule
found in Section 21, subsection (b), of the bill.
2:30:20 PM
REPRESENTATIVE PARISH asked whether tundra would be considered
forested land.
MR. MAISCH said the bill defines forested land as any burnable
organic material. In further response to Representative Parish,
he said the definition of forested land is AS 41.15.170(3) which
read:
"forested land" includes all land on which grass,
brush, timber, and other natural vegetative material
grows;
REPRESENTATIVE PARISH suggested that definition would include
farmland, tideland beach grass and seaweed.
MR. MAISCH said correct.
2:33:45 PM
The committee took a brief at-ease.
CO-CHAIR JOSEPHSON set the deadline for amendments to HB 355 at
5:00 p.m. on 3/1/18.
[HB 355 was held over.]
2:36:59 PM
ADJOURNMENT
There being no further business before the committee, the House
Resources Standing Committee meeting was adjourned at 2:36 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB 355 Sectional Analysis 2.21.18.pdf |
HRES 2/28/2018 1:00:00 PM HRES 2/28/2018 6:00:00 PM HRES 3/5/2018 1:00:00 PM HRES 3/9/2018 1:00:00 PM |
HB 355 |
| HB 355 Sponsor Statement 2.21.18.pdf |
HRES 2/28/2018 1:00:00 PM HRES 2/28/2018 6:00:00 PM HRES 3/5/2018 1:00:00 PM HRES 3/9/2018 1:00:00 PM |
HB 355 |
| HB 355 Supporting Document- Expanded One Pager 2.21.18.pdf |
HRES 2/28/2018 1:00:00 PM HRES 2/28/2018 6:00:00 PM HRES 3/5/2018 1:00:00 PM HRES 3/9/2018 1:00:00 PM |
HB 355 |
| HB 355 Ver A 2.21.18.pdf |
HRES 2/28/2018 1:00:00 PM HRES 2/28/2018 6:00:00 PM HRES 3/5/2018 1:00:00 PM HRES 3/9/2018 1:00:00 PM |
HB 355 |
| DNR Fiscal Note, HB 355.pdf |
HRES 2/28/2018 1:00:00 PM HRES 2/28/2018 6:00:00 PM HRES 3/5/2018 1:00:00 PM |
HB 355 |
| Law Fiscal Note, HB 355.pdf |
HRES 2/28/2018 1:00:00 PM HRES 2/28/2018 6:00:00 PM HRES 3/5/2018 1:00:00 PM HRES 3/9/2018 1:00:00 PM |
HB 355 |
| Alaska Minerals Commission 2018 Report.pdf |
HRES 2/28/2018 1:00:00 PM |
|
| HRES Alaska Minerals Commission Presentation 2.28.18.pdf |
HRES 2/28/2018 1:00:00 PM |
|
| HB 355 Supporting Document- Alaska Fire Chiefs Letter of Support 2.28.18.pdf |
HRES 2/28/2018 1:00:00 PM HRES 2/28/2018 6:00:00 PM HRES 3/5/2018 1:00:00 PM HRES 3/9/2018 1:00:00 PM |
HB 355 |