03/24/2014 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SJR25 | |
| HB218 | |
| HB47 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| *+ | SJR 25 | TELECONFERENCED | |
| + | HB 47 | TELECONFERENCED | |
| + | HB 218 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
March 24, 2014
1:36 p.m.
MEMBERS PRESENT
Senator John Coghill, Chair
Senator Fred Dyson
Senator Donald Olson
Senator Bill Wielechowski
MEMBERS ABSENT
Senator Lesil McGuire, Vice Chair
COMMITTEE CALENDAR
SENATE JOINT RESOLUTION NO. 25
Urging the Alaska Department of Law and the United States
Department of Justice to file a motion in United States District
Court to compel the ExxonMobil Corporation to honor the
commitment to pay additional damages for the Exxon Valdez oil
spill under the "Reopener for Unknown Injury" provision of the
1991 Agreement and Consent Decree and to collect the full demand
for payment the state and federal government submitted to the
ExxonMobil Corporation on August 31, 2006; and urging the Exxon
Valdez Oil Spill Trustee Council immediately to initiate
subsurface lingering oil restoration work.
- HEARD & HELD
COMMITTEE SUBSTITUTE FOR HOUSE BILL NO. 218(JUD)
"An Act relating to the aggravating factor at felony sentencing
of multiple prior misdemeanors when a prior misdemeanor involves
an assault on a correctional employee; providing that
deportation is not a proper factor for referral of a case to a
three-judge panel for sentencing for a felony; and providing for
an effective date."
- HEARD & HELD
COMMITTEE SUBSTITUTE FOR HOUSE BILL NO. 47(JUD)
"An Act requiring a party seeking a restraining order,
preliminary injunction, or order vacating or staying the
operation of certain permits affecting an industrial operation
to give security in the amount the court considers proper for
costs incurred and damages suffered if the industrial operation
is wrongfully enjoined or restrained."
- HEARD & HELD
PREVIOUS COMMITTEE ACTION
BILL: SJR 25
SHORT TITLE: EXXON VALDEZ OIL SPILL DAMAGES/REOPENER
SPONSOR(s): SENATOR(s) GARDNER
02/18/14 (S) READ THE FIRST TIME - REFERRALS
02/18/14 (S) JUD
03/24/14 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
BILL: HB 47
SHORT TITLE: INJUNCTION SECURITY: INDUSTRIAL OPERATION
SPONSOR(s): REPRESENTATIVE(s) FEIGE, CHENAULT
01/16/13 (H) PREFILE RELEASED 1/11/13
01/16/13 (H) READ THE FIRST TIME - REFERRALS
01/16/13 (H) JUD
01/30/13 (H) JUD AT 1:00 PM CAPITOL 120
01/30/13 (H) Heard & Held
01/30/13 (H) MINUTE(JUD)
02/10/14 (H) JUD AT 1:00 PM CAPITOL 120
02/10/14 (H) Heard & Held
02/10/14 (H) MINUTE(JUD)
02/14/14 (H) JUD AT 1:00 PM CAPITOL 120
02/14/14 (H) -- MEETING CANCELED --
02/19/14 (H) JUD AT 1:00 PM CAPITOL 120
02/19/14 (H) Moved CSHB 47(JUD) Out of Committee
02/19/14 (H) MINUTE(JUD)
02/21/14 (H) JUD RPT CS(JUD) NT 4DP 2NR
02/21/14 (H) DP: MILLETT, LEDOUX, LYNN, KELLER
02/21/14 (H) NR: FOSTER, GRUENBERG
03/12/14 (H) TRANSMITTED TO (S)
03/12/14 (H) VERSION: CSHB 47(JUD)
03/14/14 (S) READ THE FIRST TIME - REFERRALS
03/14/14 (S) JUD
03/24/14 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
BILL: HB 218
SHORT TITLE: SENTENCING; AGRAVATOR & DEPORTATION STATUS
SPONSOR(s): REPRESENTATIVE(s) CHENAULT, MILLETT, HERRON, LYNN
01/21/14 (H) PREFILE RELEASED 1/10/14
01/21/14 (H) READ THE FIRST TIME - REFERRALS
01/21/14 (H) JUD
02/12/14 (H) JUD AT 1:00 PM CAPITOL 120
02/12/14 (H) Heard & Held
02/12/14 (H) MINUTE(JUD)
02/21/14 (H) JUD AT 1:00 PM CAPITOL 120
02/21/14 (H) Heard & Held
02/21/14 (H) MINUTE(JUD)
02/24/14 (H) JUD AT 1:00 PM CAPITOL 120
02/24/14 (H) Moved CSHB 218(JUD) Out of Committee
02/24/14 (H) MINUTE(JUD)
02/26/14 (H) JUD RPT CS(JUD) NT 4DP 1NR 2AM
02/26/14 (H) DP: MILLETT, LYNN, PRUITT, KELLER
02/26/14 (H) NR: FOSTER
02/26/14 (H) AM: LEDOUX, GRUENBERG
03/14/14 (H) TRANSMITTED TO (S)
03/14/14 (H) VERSION: CSHB 218(JUD)
03/14/14 (S) READ THE FIRST TIME - REFERRALS
03/14/14 (S) JUD
03/24/14 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
WITNESS REGISTER
SENATOR BERTA GARDNER
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Sponsor of SJR 25.
NOAH HANSON, Staff
Senator Berta Gardner
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Introduced SJR 25 on behalf of the sponsor.
TOM WRIGHT, Staff
Representative Mike Chenault
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Introduced HB 218 on behalf of the sponsor.
REPRESENTATIVE MIKE CHENAULT
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Sponsor of HB 218.
RICK SVOBODNY, Deputy Attorney General
Criminal Division
Department of Law (DOL)
Juneau, Alaska
POSITION STATEMENT: Provided supporting information for HB 218.
MARGARET STOCK, representing herself
Anchorage, Alaska
POSITION STATEMENT: Testified in support of the original version
of HB 218 and opposition to the CS.
QUINLAN STEINER, Director
Public Defender Agency
Department of Administration (DOA)
Anchorage, Alaska
POSITION STATEMENT: Provided information related to HB 218.
ANN BLACK, Assistant Attorney General
Criminal Division
Special Prosecutions and Appeals
Department of Law
Anchorage, Alaska
POSITION STATEMENT: Provided supporting information related to
HB 218.
REPRESENTATIVE ERIC FEIGE
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Sponsor of HB 47.
LYNN KENT, Deputy Commissioner
Department of Environmental Conservation (DEC)
Anchorage, Alaska
POSITION STATEMENT: Provided information related to HB 47.
RUTH HEESE, Assistant Attorney General
Civil Division
Environmental Section
Department of Law
Juneau, Alaska
POSITION STATEMENT: Provided information related to HB 47.
ACTION NARRATIVE
1:36:17 PM
CHAIR JOHN COGHILL called the Senate Judiciary Standing
Committee meeting to order at 1:36 p.m. Present at the call to
order were Senators Dyson, Wielechowski, Olson, and Chair
Coghill.
SJR 25-EXXON VALDEZ OIL SPILL DAMAGES/REOPENER
1:37:32 PM
CHAIR COGHILL announced the consideration of SJR 25, a
resolution, "Urging the Alaska Department of Law and the United
States Department of Justice to file a motion in United States
District Court to compel the ExxonMobil Corporation to honor the
commitment to pay additional damages for the Exxon Valdez oil
spill under the 'Reopener for Unknown Injury' provision of the
1991 Agreement and Consent Decree and to collect the full demand
for payment the state and federal government submitted to the
ExxonMobil Corporation on August 31, 2006; and urging the Exxon
Valdez Oil Spill Trustee Council immediately to initiate
subsurface lingering oil restoration work." He said it was the
first hearing on the bill.
1:37:50 PM
SENATOR BERTA GARDNER, sponsor of SJR 25, thanked the committee
for hearing the bill. She noted it was the 25th anniversary of
the Exxon Valdez oil spill. She said her intention is twofold:
to gain access to additional resources as agreed by Exxon and
the state and to prepare for development of resources going
forward with assurance that this development is expected to
prevent spills in the future. Alaska has a strong interest in
assuring that there are high standards in resource development
pertaining to prevention and response. She stated that, thus far
with the Exxon Valdez spill, Alaska hasn't done everything it
could. She said she wanted to make sure that Alaska does not
miss the opportunity to claim what is still needed and has been
agreed upon.
1:40:53 PM
NOAH HANSON, Staff, Senator Berta Gardner, introduced SJR 25 on
behalf of the sponsor. He read from the following document:
SJR 25 urges the Alaska Department of Law and the US
Department of Justice to take court action to collect
from Exxon the delinquent $92 million oil spill
"Reopener for Unknown Injury" claim submitted by the
Murkowski Administration in 2006.
In the historic 1991 settlement of the State of Alaska
and U.S. Government claims against Exxon for the 1989
Exxon Valdez oil spill, Exxon agreed to pay $900
million in civil damages, $100 million in criminal
restitution, and a $25 million criminal fine.
Additionally, the Agreement and Consent Decree
provided for a "Reopener for Unknown Injury" under
which Exxon would pay up to $100 million in the future
for injuries unknown and unanticipated at the time of
the settlement.
In 2006, the Murkowski Administration, at the urging
of the Alaska Legislature, collaborated with the Bush
administration to develop a restoration plan for
unknown injuries, and presented a demand for payment
to Exxon for $92 million. Exxon rejected the claim and
refused to honor its obligations as set forth in the
1991 agreement.
Meanwhile, state and federal studies confirm that a
substantial amount of Exxon Valdez oil remains on
beaches in substrates and the oil is nearly as toxic
as it was the first few weeks after the spill. Birds,
fish and mammals in the region continue to be
affected.
Although the State of Alaska has continued to study
lingering oil injuries, it has yet to begin work to
remediate lingering oil, as promised in 2006, nor has
it taken Exxon to court to collect the long-overdue
claim.
th
On June 25, 2010 Exxon unilaterally suspended the
tolling agreement among the parties, under which the
statute of limitations had been temporarily suspended.
This action started the clock ticking, with
potentially a 6-year limit. Therefore, we must pursue
our claim in court before June 25, 2016, or lose it
forever.
After 25 years, it is time to give Alaskans closure on
this issue. I look forward to your support on this
resolution.
1:45:58 PM
SENATOR DYSON said he takes exception to the phrase "what we
need." He suggested it should be based on what is fair and just.
SENATOR GARDNER said she was indicating that research and work
are still needed.
SENATOR DYSON suggested the context is "what we need for
remediation, not what the state needs for income."
SENATOR GARDNER agreed. She said a need for income is not what
this bill is about.
SENATOR DYSON said overstatements are a bother and ultimately
bring credibility into question. He offered that most beaches in
Prince William Sound weren't oiled. It's not accurate to give
the impression that the entire Sound was oiled. He further
opined that Dr. Steiner's report is overstated.
CHAIR COGHILL said he would hold SJR 25 in committee and take
public testimony at a subsequent hearing.
HB 218-SENTENCING; AGRAVATOR/DEPORTATION STATUS
1:49:38 PM
CHAIR COGHILL announced the consideration of HB 218. "An Act
relating to the aggravating factor at felony sentencing of
multiple prior misdemeanors when a prior misdemeanor involves an
assault on a correctional employee; providing that deportation
is not a proper factor for referral of a case to a three-judge
panel for sentencing for a felony; and providing for an
effective date." This was the first hearing of the bill. [CSHB
218(JUD) was before the committee.]
1:50:05 PM
TOM WRIGHT, Staff, Representative Mike Chenault, introduced HB
218 on behalf of the sponsor. He said the bill started out as a
very simple bill. After Representative Chenault had a discussion
with a correctional officer in Seward, he was informed there
were some statutes that did not cover correctional officers in
the same manner as police officers. Legislative Legal found one
statute that did not include correctional officers - AS
12.55.155(c)(31), which covers the aggravating factor of
multiple misdemeanors. The aggravating factor allows a judge who
is sentencing a person for a felony conviction to impose a
sentence above the presumptive range if the defendant has five
previous convictions for class A misdemeanors.
Generally, convictions for two crimes that are part of a single
criminal episode are counted as one prior conviction in
sentencing. However, there are exceptions. Current law provides
that prior convictions for resisting arrest, a misdemeanor while
attempting escape, and assault on a peace officer would each
count as a prior conviction even though they were part of the
same criminal episode. The bill extends the same protection to
correctional officers.
He explained that Department of Law had a problem extending the
same rights to persons in sentencing for a three-judge panel.
There were several cases where the defendants requested a three-
judge panel, citing deportation as an issue. The judge allowed
the defendants to go before a three-judge panel for sentencing
and the sentences were lessened because deportation was an
issue.
He related that an amendment now provides that the immigration
status of a defendant convicted of a felony should be a neutral
factor in imposing sentence on the defendant. He noted the
decision to initiate or not initiate deportation proceedings is
made by the federal government, not the state. He noted a letter
in the packets from the office of Immigration Customs
Enforcement (ICE) that on page 5 explains how ICE comes to a
deportation decision.
He concluded that it is a matter of fairness that a non-citizen
be granted different rights than a citizen. Allowing deportation
to be used in a sentencing factor creates a certain and
exceptional circumstance.
REPRESENTATIVE MIKE CHENAULT, sponsor of HB 218, said he agrees
with what the Department of Law has brought forward. No one
should have more rights than of a U.S. citizen.
CHAIR COGHILL asked Mr. Svobodny to discuss Sections 3, 4, and
5.
1:57:09 PM
RICK SVOBODNY, Deputy Attorney General, Criminal Division,
Department of Law (DOL), Juneau, Alaska, said Mr. Wright gave a
very good explanation of the bill. He said he wanted to make
four points. The provisions that deal with immigration are
designed to cover neutrality, fairness, public safety, and that
immigration/deportation and removal are subject to federal
jurisdiction.
He provided an example of how neutrality would apply. A person
in Nome who emigrated from Jamaica stabbed a cab driver and the
Jamaican got a break that the cab driver wouldn't if the
situation were turned. The bill is designed to treat all who
come before the courts in an equal way.
SENATOR WIELECHOWSKI said it seems like a violation of equal
protection. He asked if somebody could address that.
MR. SVOBODNY deferred to Ms. Black to answer. He addressed the
fairness issue. Sentencing laws come from the legislature and
set out a list of things to consider in sentencing, such as
deterrents. The preparatory language says it's being done to
make sentencing fair and equal among all persons. The court is
supposed to look at restitution and treating victims with
dignity and respect during sentencing. He said immigration
status isn't a factor.
He addressed public safety. He used the previous example to make
a point that when the three-judge panel considered sentencing,
they consider public safety.
He explained that deportation is a fundamental federal issue
beyond the control of the state. He noted that President Obama
yesterday said there would be fewer deportations, which is a
change in the rules. The National Immigration Law Center
believes that the President and ICE have extraordinary
discretion in deportation matters.
2:08:27 PM
SENATOR DYSON commented that prosecutors will often plead down a
case. His understanding was that the aforementioned person had
been in the U.S. for some time and had served in the military
with great distinction. He imagined the other side of the story
was that the judges thought his military service ought to be a
mitigating factor. If that was true, he wondered if the state
ought to do more in letting courts decide mitigating
circumstances.
MR. SVOGODNY opined that PTSD and FASD make sense as mitigating
factors and if the legislature decides to make distinguished
service a mitigating factor that is fine, but when a three-judge
panel is just guessing, it isn't acceptable.
2:12:29 PM
MR. WRIGHT highlighted a February 11 memo from Mr. Svobodny to
Representative Chenault that wasn't meant to be a legal memo.
Some of the testimony in House Judiciary treated it as a legal
treatise and it is not.
2:13:35 PM
MARGARET STOCK, representing herself, Anchorage, Alaska, said
she's an attorney who practices in the area of immigration. She
represents deported military veterans and they are not often
allowed reentry. Usually, they are deported under a particularly
harsh section of the law.
She described Mr. Svobodny's statement that the President is
changing the immigration law startling, because it can't be
done. She suggested he Google "deport veterans" to understand.
She also questioned what a memo from the Department of Law would
be if it isn't a legal memo. She cited other inaccuracies in
Department of Law's position on this matter.
MS. STOCK stated support for HB 218 as originally introduced,
but not with the anti-immigrant amendment that the Department of
Law suggested. It will disrupt the neutrality and fairness of
the law. It says these people can't go to a three-judge panel
because they're foreign born. What this does is create more
unfairness in the law. The amendment was designed to treat
foreign-born people differently.
She reiterated that there was neutrality before the recent
amendment was introduced.
2:21:14 PM
CHAIR COGHILL thanked Ms. Stock for her work and service to her
country.
SENATOR DYSON said he was startled to hear her say a naturalized
citizen could lose their citizenship.
MS. STOCK said there are two provisions resulting in loss of
citizenship for those who earn their citizenship through
military service. One is if five years of honorable military
service is not met, a person can be denaturalized and then
deported.
SENATOR DYSON said that information was helpful.
MS. STOCK said she would address in writing further errors in
the Department of Law's latest memo.
2:25:23 PM
QUINLAN STEINER, Director, Public Defender Agency, Department of
Administration (DOA), discussed the three-judge panel
application and unduly harsh consequences, which separates the
case from a valid equal protection argument. The Constitution
says that community condemnation, restitution, and reformation
are the goals of the criminal justice system. When viewed too
narrowly, you run the risk of unfair proceedings. Presumptive
sentences are designed to allow departures when appropriate,
based upon the full range of collateral consequences.
CHAIR COGHILL mentioned Section 4 and asked how the non-
statutory mitigators would apply under the presumptive range.
MR. STEINER explained that "if you plead and prove a non-
statutory mitigator, then you would potentially get the referral
to the three-judge panel." It would have to be re-proven to the
panel and then show that the departure is appropriate. There are
three hurtles in getting a departure below the presumptive
range.
2:30:29 PM
SENATOR WIELECHOWSKI asked what other states procedures are for
mitigating factors.
MR. STEINER said he didn't know; sentencing law is unique -
ranges and presumptions are unique.
SENATOR WIELECHOWSKI requested information about the mechanics
for getting to a three-judge panel.
MR. STEINER said there are two ways: a non-statutory mitigator
and the argument that the sentence is manifestly unjust.
2:32:36 PM
ANN BLACK, Assistant Attorney General, Criminal Division,
Special Prosecutions and Appeals, Department of Law, Anchorage,
Alaska, said with regard to the position that the bill is
injecting bias or lack of neutrality into sentencing, Mr.
Svobodny was accurate regarding a person's immigration status,
which is valid under U.S. immigration law. It's a federal issue
and isn't mentioned in the state constitution discussing what
the appropriate factors are when dealing with the administration
of justice in Alaska. She said in Alaska, the criminal
administration of justice under Article 1, Section 2, is
governed by the principles of protecting the public by enforcing
community condemnation of the offender, by considering the
rights of crime victims, by ensuring restitution from the
offender, and reformation of the offender.
She continued to say that this body codified additional factors
found in AS 12.55.005 including the seriousness of the
defendant's present offense, the defendant's prior criminal
record, and likelihood of rehabilitation, the need to confine
the defendant, the circumstances of the offense itself, and the
extent to which the defendant harmed or endangered victims or
public safety. Also considered are the effects sentencing will
impose of deterring the defendant, as well as other members of
society, community condemnation in the effort to reaffirm social
norms, and restoration of the community and the victim. Nowhere
is there any reference to federal policy on any topic, let alone
immigration.
She concluded that the bill "gets us back to the foundation of
criminal administration in Alaska." By doing that, it advances
this body's stated goal in creating a presumptive sentencing
scheme, which is to ensure that there is not disparate
sentencing. She said Mr. Svobodny noted two cases that are an
excellent example of showing how considering a person's
immigration status results in disparate sentencing. She used the
State vs. Silvera case as an example of an aggravated felon who
avoided deportation because he did not receive a presumptive
term sentence. It highlights why the state needs to allow the
federal system to enforce its own laws.
She maintained that Alaska judges and district attorneys do not
have the resources or time to become experts on federal
immigration law. The way the law currently stands, Alaska judges
are in the position to be making extremely weighty decisions
that affect, not only an individual defendant's ability to
remain in this country, but also affect public safety and the
rights of crime victims. This bill would prevent that from
happening.
2:41:25 PM
MS. BLACK addressed the equal protection issue. She said when
the court looks at whether or not a law violates equal
protection or due process, the law has to be narrowly tailored
to achieve a legitimate purpose. Protecting the public and
ensuring victim rights are compelling state purposes. In
addition, the court always looks to the class that is being
affected by the law. There has been some indication that the
class should be those who are subject to harsh consequences -
those who are potentially subject to deportation. But,
throughout its history, the court of appeals, when assessing
whether or not there is an equal protection violation, doesn't
look at the specific details of an individual defendant, they
look at broader categories. In this instance regarding
sentencing law, the courts have already upheld the presumptive
sentencing laws and when they did so, they looked to the level
of felony classification as the classification. She used all
class A felonies as an example.
2:45:19 PM
She discussed military personnel who were deported. She said
Senator Dyson was correct in pointing out that they were
required not to engage in misconduct. She pointed out that
honorable service is required to earn U.S. citizenship. The
Alaska legislature must ensure that its citizens are protected
and that military personnel brought before a court will receive
just and equal treatment by the court. She concluded that HB 218
would ensure that that happens.
2:46:51 PM
CHAIR COGHILL said the argument is well laid out. He listed the
questions he would like to explore and stated he would hold HB
218 in committee for further consideration.
HB 47-INJUNCTION SECURITY: INDUSTRIAL OPERATION
2:48:12 PM
CHAIR COGHILL announced the consideration of HB 47. "An Act
requiring a party seeking a restraining order, preliminary
injunction, or order vacating or staying the operation of
certain permits affecting an industrial operation to give
security in the amount the court considers proper for costs
incurred and damages suffered if the industrial operation is
wrongfully enjoined or restrained." He said it was the first
hearing of the bill. [CSHB 47(JUD) was before the committee.]
2:48:31 PM
REPRESENTATIVE ERIC FEIGE, Alaska State Legislature, Juneau,
Alaska, introduced HB 47 speaking to the following sponsor
statement: [Original punctuations provided.]
Under current law the cost to bring a lawsuit against
a legally permitted project is in effect zero. There
is very little risk in bringing a suit. All the risk
is borne by the defendants. These actions do shutdown
projects at significant costs to working Alaskans,
businesses and the state treasury. HB 47 seeks to
remedy the situation by leveling the playing field.
HB 47 parallels the requirements of Alaska Civil Rule
65(c). As written, 65(c) states: "no restraining order
or preliminary injunction shall issue except upon the
giving of security by the applicant, in such sum as
the court deems proper, for the payment of such costs
and damages as may be incurred or suffered by any
party who is found to have been wrongfully enjoined or
restrained".
HB 47 closely mirrors the language of Alaska Civil
Rule 65(c) in order to clarify that the proposed
statute would not change the court rule. Judges
already have the ability to require security. In most
instances, they are not doing so. HB 47 simply
requests that part of the court's deliberation process
should include payment of wages and benefits for
employees & payments to contractors and sub-
contractors of the industrial operation that is being
shut down. The party asking the court to require
security must present evidence of the costs and
damages incurred. The court should then consider this
as one of the relevant factors when it determines a
bond/security amount. The amount of security is
totally within the hands of the court.
Language was added in the House Judiciary Committee to
further clarify that no such security is required of
the state and municipalities and to exclude permitting
programs in which DEC or DNR issues permits under a
state primacy permitting program that was developed
under federal law and approved by a federal agency.
2:53:15 PM
REPRESENTATIVE FEIGE concluded that this legislation has
implications for preserving the interests of companies engaged
in resource extraction, as well as for potential revenues that
could accrue to the state of Alaska if those projects are not
unduly delayed.
SENATOR WIELECHOWSKI directed attention to page 2, lines 8 - 15.
He asked why the exemptions are there.
REPRESENTATIVE FEIGE said it was a concern by the DEC
commissioner that the previous language could conflict with
federal law. From line 9 to line 15 are the exemptions for
permits attained under the Clean Water Act and under the Clean
Air Act, federal permitting programs the state administers.
SENATOR WIELECHOWSKI asked if omitting the exemptions risks the
ability to issue permits for the EPA on those Acts.
REPRESENTATIVE FEIGE said that's a matter of debate and an
effort to avoid court fights.
2:55:39 PM
LYNN KENT, Deputy Commissioner, Department of Environmental
Conservation (DEC), Anchorage, Alaska, explained that the two
provisions were added to make it clear that the state law isn't
more restrictive than federal law with regard to access to
courts. She added that DEC does not object to the language.
SENATOR WIELECHOWSKI inquired if the federal government allows
this kind of security or bond in the attempt to obtain an
injunction or a restraining order.
MR. KENT deferred the question to the Department of Law.
2:56:33 PM
RUTH HEESE, Assistant Attorney General, Civil Division,
Environmental Section, Department of Law, said the issue is that
there not be a concern by the federal approving agencies
regarding actions brought by the federal courts with respect to
actions brought on permits issued under primacy programs.
Exempting the Clean Air and Clean Water and Coal program permits
from HB 47 gives assurance to federal agencies that state
programs won't be subject to the security requirements.
REPRESENTATIVE FEIGE said federal Rule 65c and state Rule 65c
are essentially the same. They both put the responsibility for
setting the bond amount on the judge of the particular court.
SENATOR WIELECHOWSKI countered that the bill requires people to
post a bond if they are attempting to get a restraining order or
an injunction in a state action.
REPRESENTATIVE FEIGE said, "We're not requiring them to put it
up in a bond, we're asking the judge to consider.
SENATOR WIELECHOWSKI read page 1, line 9, "unless exempt, the
parties seeking restraining order, preliminary injunction, or
order vacating or staying the operation of certain permits
affecting an industrial operation shall give security." He asked
if the "shall" isn't mandatory.
REPRESENTATIVE FEIGE said it's whatever the court considers
proper.
SENATOR WIELECHOWSKI maintained that the courts will be
wondering how much they should require. He requested the sponsor
state the intent and asked whether the court could say zero.
REPRESENTATIVE FEIGE replied that the courts could require
nothing.
SENATOR WIELECHOWSKI asked for the circumstances where the
courts could say that.
REPRESENTATIVE FEIGE said he would leave it to the judge's
discretion.
2:59:34 PM
CHAIR COGHILL said it's a valid question. He held HB 47 for
further consideration and kept public testimony open.
3:00:08 PM
There being no further business to come before the committee,
Chair Coghill adjourned the Senate Judiciary Standing Committee
meeting at 3:00 p.m.