Legislature(2003 - 2004)
05/16/2003 02:05 PM Senate JUD
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ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
May 16, 2003
2:05 p.m.
MEMBERS PRESENT
Senator Ralph Seekins, Chair
Senator Scott Ogan, Vice Chair
Senator Gene Therriault
Senator Johnny Ellis
Senator Hollis French
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
CS FOR HOUSE JOINT RESOLUTION NO. 22(RLS)
Relating to the USA PATRIOT Act, the Bill of Rights, the
Constitution of the State of Alaska, and the civil liberties,
peace, and security of the citizens of our country.
MOVED SCS CSHJR 22(JUD) OUT OF COMMITTEE
CS FOR SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 86(JUD) am
"An Act relating to state permitted projects; and providing for
an effective date."
HEARD AND HELD
CS FOR HOUSE BILL NO. 245(JUD)(efd fld)
"An Act relating to certain suits and claims by members of the
military services; relating to certain suits and claims
regarding acts or omissions of the organized militia; relating
to workers' compensation and death benefits for members of the
organized militia; relating to liability arising out of certain
search and rescue, civil defense, fire management, and fire
fighting activities."
SCHEDULED BUT NOT HEARD
SENATE JOINT RESOLUTION NO. 19
Proposing amendments to the Constitution of the State of Alaska
relating to the Alaska permanent fund.
SCHEDULED BUT NOT HEARD
SENATE BILL NO. 170
"An Act relating to the Code of Criminal Procedure; relating to
defenses, affirmative defenses, and justifications to certain
criminal acts; relating to rights of prisoners after arrest;
relating to discovery, immunity from prosecution, notice of
defenses, admissibility of certain evidence, and right to
representation in criminal proceedings; relating to sentencing,
probation, and discretionary parole; amending Rule 16, Alaska
Rules of Criminal Procedure, and Rules 404, 412, 609, and 803,
Alaska Rules of Evidence; and providing for an effective date."
ITEM REMOVED FROM AGENDA
PREVIOUS ACTION
HJR 22 - See State Affairs minutes dated 5/13/03.
HB 86 - See Judiciary minutes dated 5/7/03 and 5/13/03.
WITNESS REGISTER
Mr. Jomo Stewart
Staff to Representative Guttenberg
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Commented on HJR 22.
Ms. Rynnieva Moss
Staff to Representative Coghill
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Commented on HJR 22.
Mr. John Brading
2004 Steese Hwy
Fairbanks AK 99712
POSITION STATEMENT: Supported HJR 22.
Mr. Frank Turney
Bill of Rights Defense Committee
PO Box 70392
Fairbanks AK 99716
POSITION STATEMENT: Supported HJR 22.
Mr. Mike Lawless
Bill of Rights Defense Committee
General Delivery
Two Rivers AK 99716
POSITION STATEMENT: Supported HJR 22.
Mr. Lee DeSpain
707 Cowles St. #3
Fairbanks AK 99701
POSITION STATEMENT: Supported HJR 22.
Mr. Scott Trafford Calder
PO Box 75011
Fairbanks AK 99707
POSITION STATEMENT: Supported HJR 22.
Ms. Jennifer Rudinger, Executive Director
Alaska Civil Liberties Union
P. O. Box 201844
Anchorage, AK 99520-1844
POSITION STATEMENT: Supported HJR 22.
Mr. Gary Carlson, Senior Vice President
Forest Oil Corporation
Anchorage, AK
POSITION STATEMENT: Supported HB 86.
Mr. Kyle Parker, Attorney
Pat & Boggs
Anchorage, AK
POSITION STATEMENT: Supported HB 86.
Mr. Tray Wilson, Senior Vice President
General Counsel and Secretary
Forest Oil Corporation
Anchorage, AK
POSITION STATEMENT: Supported HB 86.
Mr. Joe Balash
Staff to Senator Therriault
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Commented on HB 86.
ACTION NARRATIVE
TAPE 03-50, SIDE A
CSHJR 22(RLS)-PATRIOT ACT AND DEFENDING CIVIL LIBERTIES
CHAIR RALPH SEEKINS called the Senate Judiciary Standing
Committee meeting to order at 2:05 p.m. Present were Senators
Ogan, Ellis and French. The first order of business to come
before the committee was HJR 22.
SENATOR ELLIS motioned to adopt SCS CSHJR 22(JUD), version Q.
There was no objection and it was so ordered.
MR. JOMO STEWART, Staff to Representative Guttenberg, said the
changes in the SCS are appropriate.
MS. RYNNIEVA MOSS, Staff to Representative Coghill, said she
would answer questions.
MR. JOHN BRADY, Fairbanks resident, supported HJR 22. He said,
"The USA's Patriot Act creates a virtual police state with
little or no judicial oversight."
MR. FRANK TURNEY, Bill of Rights Defense Committee, supported
HJR 22. He thought the definition of a terrorist was really
broad in the Patriot Act.
MR. MIKE LAWLESS, Bill of Rights Defense Committee, supported
HJR 22 and thanked them for all the hard work they had done on
this resolution.
MR. LEE DESPAIN, Fairbanks resident, supported HJR 22.
SENATOR THERRIAULT arrived at 2:13 p.m.
MR. SCOTT TRAFFORD CALDER, Fairbanks resident, supported HJR 22.
He wanted to know if the words "reasonable suspicion" had
changed in version Q.
CHAIR SEEKINS replied reasonable suspicion and probable cause
essentially mean the same thing.
MR. CALDER said he objected to the use of reasonable suspicion,
but that this bill is only a resolution and it's better to get
something passed than nothing at all.
SENATOR FRENCH commented that reasonable suspicion is a lesser
standard than probable cause, but it is the standard that is
used before you stop a citizen who is walking down the street.
SENATOR OGAN said that Black's Law Dictionary defines reasonable
suspicion as:
Such suspicion, which will justify an officer, for
fourth amendment purposes, in stopping a defendant in
a public place, is quantum of knowledge sufficient to
induce ordinary prudent and cautious man under
circumstances that could lead to criminal activity...
He said that probable cause is a higher standard by 50 percent
or more and felt that reasonable suspicion was enough to
investigate an activity, but it's not enough to get search
warrants for wiretaps and those kinds of things.
SENATOR FRENCH said what he reads on page 2, lines 13 - 25, is
that they are resolving that in the absence of reasonable
suspicion or criminal activity under Alaska state law, no state
agency may begin an investigation. He asked whether they think
that state officers should be able to assist in perceived
violations under the same reasonable suspicion standard as
federal law or are they trying to avoid that.
CHAIR SEEKINS added that he thought that was a good point and
asked if we have state laws that cover the federal side of
things like kidnapping.
SENATOR FRENCH replied that you can always find some statute
that will cover a federal crime and vice versa.
MS. JENNIFER RUDINGER, Executive Director, Alaska Civil
Liberties Union (ACLU), thanked Representatives Guttenberg and
Coghill for the bi-partisan and tireless effort they put into
crafting this resolution. The ACLU supported the language that
came out of the House by a vote of 32 - 1. Reasonable suspicion
is the appropriate legal standard for initiating the
investigations and searches that are contemplated by HJR 22;
probable cause is the appropriate standard for obtaining a
warrant.
SENATOR OGAN asked if aliens are treated differently under the
Patriot Act than for other crimes since it looks as though it
allows them to be detained for six months without due process.
MS. RUDINGER replied that the Patriot Act takes many of the
types of searches and covert surveillance that used to apply to
agents of a foreign power and expands that to any kind of
investigation.
It's not whether it's a U.S. citizen or a non-citizen
and whether it's a routine criminal investigation or
an investigation related to terrorism. That's one of
the more troublesome aspects of the Patriot Act. It's
the breadth of power and the expansion of that
power...
With respect to non citizens and their detention, I
think a lot of that action came from executive orders,
but I want to find out more information specifically
on the length of those detentions as to whether that's
coming from the Patriot Act or other executive orders.
SENATOR OGAN said Section 213 of the Patriot Act has the
authority for delaying notice of execution of warrant and he
wasn't sure if reasonable cause was an appropriate standard.
MS. RUDINGER said that issue has been troubling a lot of
constitutional scholars, because although the Fourth Amendment
does say probable cause is necessary to obtain a warrant, U.S.
Supreme Court cases have lowered that standard in some
instances. Justice Scalia said that troubled him.
SENATOR FRENCH commented that Alaska law has not eroded, but he
couldn't speak to federal law.
CHAIR SEEKINS said the draft is too weak and ignores the
possibility of other federal laws that cause some of the same
problems.
MS. MOSS said this is the product of almost a week of
negotiations between Representatives Guttenberg and Coghill and
the intent is to encourage Congress to look at any measures that
infringe on our liberties.
SENATOR FRENCH said the language is aimed at the problem, which
is overreaching under the Patriot Act.
SENATOR ELLIS motioned to pass SCS CSHJR 22(JUD) from committee
with individual recommendations and the accompanying fiscal
note. There were no objections and it was so ordered.
2:32 - 2:36 p.m. - at ease
CSSSHB 86(JUD) am-INJUNCTIONS AGAINST PERMITTED PROJECTS
CHAIR SEEKINS announced HB 86, version X.2, to be up for
consideration.
SENATOR THERRIAULT moved amendment 1.
CHAIR SEEKINS objected for the purposes of discussion.
SENATOR THERRIAULT said he was concerned about decreasing oil
and gas production in Cook Inlet, but the Forest Oil Corporation
activity has shown promise. After having fought lengthy legal
challenges, they have permits in hand and are ramping up their
production. Since they have jumped through all the hoops, the
Legislature is saying once and for all that the project can go
forward.
SENATOR ELLIS asked if this would be intervening in an active
lawsuit.
SENATOR THERRIAULT replied that there has been a stream of
challenges.
MR. GARY CARLSON, Senior Vice President, Forest Oil, said they
operate the Osprey Platform and are developing the Redoubt Shoal
Oilfield in Cook Inlet south of Anchorage. It's the largest oil
field to be developed in Cook Inlet since the early 70s and its
production is vital to Forest Oil and is in the state's
interest. They have invested over $200 million in this project
to date (transporting about 35,000 barrels of oil per day) and
they and the state are just beginning to see some return on the
investment. They hope to increase production by another 10,000
barrels as additional wells are completed. All was accomplished
in a safe manner using state of the art design, engineering and
innovation to minimize environmental impacts of the project.
The Osprey Project is the first platform in Cook Inlet to grind
and inject all the drill cuttings eliminating the need to
transport the materials to shore. They are the first platform to
reinject produced fluids on location and the first platform to
electrify the drilling rig using shore power thereby eliminating
the need for diesel engines and reducing the associated air
emissions. They are the first Cook Inlet operation to use soil
borings for pipeline installation, which eliminates disturbances
to the bluffs and shoreline.
MR. CARLSON said they have done what the state has asked plus
some. However, their development of the Redoubt Shoals has been
the subject of continuing litigation since the leases were
issued by the State of Alaska. He said, "The Alaska Supreme
Court could issue an injunction at any time and, if it were to
do so, the fiscal impacts for both Forest Oil and the State of
Alaska would be dramatic and immediate."
SENATOR ELLIS asked what they are in court for now and would
this amendment resolve the matter.
MR. CARLSON replied the special interest group, Trustees for
Alaska, have sued the state for awarding permits to develop the
Redoubt Shoal field. They asked the superior court for a stay to
stop production, but they were turned down so they petitioned
the Alaska Supreme Court. The basic case is being heard by
superior court right now.
SENATOR FRENCH said he too would be frustrated if he had been
sued for 10 years, but he didn't know of any lawsuit that didn't
have two sides and asked him what their argument was.
MR. CARLSON replied they stated in superior court that they are
basically against any development and listed a lot of issues
that the state didn't administer to their satisfaction.
SENATOR FRENCH asked if it had to do with the initial
permitting.
MR. KYLE PARKER, Pat & Boggs, Counsel for Forest Oil, said they
have been working with Forest Oil since 1997. The leases that
are the subject of the current lawsuit are now in their 10th
year of litigation, originating in 1993 in a case known as
Ninilchik Traditional Counsel v. State. That is where the state
issued its best interest finding and coastal zone consistency
determination and put the leases out for sale. He continued,
In that litigation, the AC&P issues were litigated
thoroughly. The next litigation that came along was
1995 and it was litigation over the general permit
that governs all the discharges associated with oil
and gas activities in Cook Inlet. That case was
litigated again by Port Graham and Nanwalek
Traditional Groups, represented again by Trustees for
Alaska. The principal focus of the attack there was,
again, the coastal zone consistency determination for
the general permit that was issued for covering all
discharges in Cook Inlet.
The next set of litigation was the litigation
challenging the exploration phase of the Redoubt
Shoals Project, which Forest Oil has been pursing
since it came into acquisition of leases in 1996. Many
of you will remember that last year the [Alaska]
Supreme Court entered an injunction stopping the
project in its tracks, because it found that under the
AC&P, the state had failed to consider the impacts of
the discharges associated with the projects. That is
the very same issue that had been litigated in the
general permit litigation, which was completed prior
to the [Alaska] Supreme Court entering the injunction
last year. The Legislature, you will recall, acted
last year and passed a bill that ratified the state's
ability to rely on general permits when they are
authorizing projects. No sooner had the litigation
ended in May of last year, but the Trustees and Cook
Inlet Keepers stepped forward with the next
litigation. The next litigation we're currently
involved in challenging the development phase of the
project and, again, the focus of the attacks is on the
AC&P consistency determination....
CHAIR SEEKINS said this is a classic case of what this bill
intends to keep from happening.
MR. TRAY WILSON, Senior Vice President, General Counsel and
Secretary for Forest Oil Corporation, said he had a letter that
he would summarize for the committee. It includes the amount of
expenses they have incurred in defending the cases.
TAPE 03-50, SIDE B
The most significant impact of this litigation has been
uncertainty of outcome. If they were enjoined from continuing
production at this point, the cost would be significant. They
disclose the litigation in their filings with the Securities and
Exchange Commission and the public is aware of the uncertainty
associated with it and they believe it has had a negative effect
on the valuation of their stock. They are also concerned about
whether or not they should invest in additional projects in
Alaska.
SENATOR ELLIS asked if there are other companies in this same
position and shouldn't everyone be helped or no one.
Specifically, he asked whether other amendments would follow to
help other companies close out litigation.
CHAIR SEEKINS replied that this is the only one he has seen, but
he would be willing to look at everything on a case-by-case
basis.
SENATOR THERRIAULT said his staff, Mr. Balash, has been dealing
with drafters on Senator Ellis' issue and that the language is
not project specific.
SENATOR OGAN said this bill references the Cook Inlet Basin,
which is a geographic area.
MR. JOE BALASH, staff to Senator Therriault, said that Section 1
states the purpose and findings, which is:
To legislatively authorize and approve all oil and gas
projects located within the Cook Inlet Basin that
have, as of the effective date of the act, a final
authorization permit or other form of approval from
DEC, Fish and Game, DNR or the former Division of
Governmental Coordination at OMB.
The new provision under AS 46.40.096 adding Section 3 supercedes
and:
Replaces any other form of approval previously
required by law and a project approved under this new
section shall remain subject to regulation by any
agency having jurisdiction over the project consistent
with the terms and requirements of the authorization
permit or other approval issued by the agency.
So, they are speaking to all oil and gas projects within the
Cook Inlet Basin. This morning he spoke with a UNOCAL
representative who is very supportive of the amendment. Marathon
is also examining the amendment to see if it would help them,
too.
MR. BALASH said lines 12-15 say a project that is approved by
this act shall remain subject to regulation, which means that
just because they are ratifying the decisions made by the
agencies, does not mean that the companies can ignore the terms
and conditions of their permits.
SENATOR FRENCH asked for a list of the Cook Inlet oil and gas
projects that have a final authorization as of the effective
date of this act.
MR. BALASH said he would try to get one from the Division of Oil
and Gas.
CHAIR SEEKINS told Senator French that he was endorsing a
concept in the bill that has no name attached regardless of the
player.
SENATOR FRENCH replied the language says:
'The purpose of these next two sections is to
legislatively authorize and approve all oil and gas
projects located within the Cook Inlet Basin that
have, as of the effective date of this act, a final
authorization permit or other form of approval.'
So I guess what I need to know is how many of those
are there...
MR. BALASH replied he could think of a handful of current
projects that are either in exploration, seismic testing or
development - the Cosmopolitan project on the Kenai and
additional exploration with UNOCAL. He said he would be happy to
get the list for him.
SENATOR FRENCH thanked him and asked what is meant by, "other
form of approval."
MR. BALASH replied the permitting process is very complex. There
are consistency findings, best interest findings, and
elevations, to name a few - and this was an easy term to use to
catch everything.
SENATOR FRENCH said he thought it could cover a telephone call
that said, 'sure, go ahead,' and he did not want to give his
legislative blessing to a telephone call. He thought "other form
of approval" was too vague.
SENATOR ELLIS asked Mr. Balash if the two other companies he
mentioned have lawsuits going in addition to this one.
MR. BALASH replied UNOCAL and Marathon are active players in the
Cook Inlet Basin and would be subject to this bill.
CHAIR SEEKINS reiterated that this bill is not company specific,
but is geographically oriented.
MR. BALASH said line 25 inserts a new section into the
consistency review process, AS 46.40.096, and goes along with HB
191, which is the revision of the coastal management program.
CHAIR SEEKINS noted that the language on lines 3-17 says this is
in Alaska's best public interest, avoids costly litigation,
provides jobs, creates local tax revenue, and fuels local
economies. The processes that have already taken place have
adequately protected the public interest.
SENATOR THERRIAULT added that Section 3 says, "not withstanding
any other provision except with respect to an appeal filed by
the applicant or the affected coastal resource district." So,
the coast districts still have the right to appeal. Otherwise
they are saying if a company has fulfilled all the other lengthy
requirements, they are allowed to proceed.
SENATOR OGAN said he didn't think Section 3 applied to just the
Cook Inlet area. It would apply to the coastal zone no matter
where you are.
MR. BALASH replied that he was correct.
3:16 - 3:18 p.m. - at ease
CHAIR SEEKINS removed his objection to Senator Therriault's
amendment.
SENATOR ELLIS objected to wait for Senator French's information.
CHAIR SEEKINS said he would hold HB 86 until tomorrow morning to
get that information. There being no further business to come
before the committee, he adjourned the meeting at 10:00 a.m.
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