HB 47 - INJUNCTION SECURITY: INDUSTRIAL OPERATION 2:14:25 PM CHAIR KELLER announced that the final order of business would be HOUSE BILL NO. 47, "An Act requiring a party seeking a restraining order, preliminary injunction, or order vacating or staying the operation of a permit 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." REPRESENTATIVE LYNN moved to adopt the original version of HB 47 as the working document. REPRESENTATIVE LYNN then objected. 2:15:33 PM REPRESENTATIVE ERIC FEIGE, Alaska State Legislature, as one of the joint prime sponsors of HB 47, offered his beliefs that over the past several years there have been cases in which preliminary injunctions or orders staying the operation of a permit have been issued against companies engaged in the development of resource extraction or in other large industrial operations that had already been granted a permit, and that such companies had to endure uncertainty and delay. [Litigating such cases] can cost hundreds of thousands of dollars, and thus the threat of having a preliminary injunction issued could act as a deterrent to investing in such projects. When preliminary injunctions or orders staying the operation of a permit are issued, it is the subsequently-laid-off workers who feel the most immediate impact. He assured the committee that HB 47 would not be applied in situations involving wrongfully-issued or poorly-written permits, or when permittees are violating the terms of their permits - in those situations it would still be up to the permitting agency to [rectify the situation]. REPRESENTATIVE FEIGE said HB 47 parallels the requirements of Rule 65(c) of the Alaska Rules of Civil Procedure; Rule 65(c) reads: (c) Security. 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. No such security shall be required of the state or a municipality or of an officer or agency thereof, or unless otherwise ordered by the court, in domestic relations actions or proceedings. REPRESENTATIVE FEIGE said HB 47 doesn't set a specific security amount, and was written to work with Rule 65(c), not change it. He offered his beliefs that although the court already has the authority to require that security be given, this isn't occurring in most cases, and that the bill itself doesn't mandate that the court require that security be given but instead simply directs the court, when determining what amount of security to require, to consider the costs that may be incurred, the damages that may be suffered, and an amount for the payment of wages and benefits for employers, contractors, and subcontractors. As used in HB 47, the term, "industrial operation" is defined as including a construction, energy, or timber activity, and oil, gas, and mineral exploration, development, and production. He offered his understanding that most preliminary injunctions involve federal permits and are settled out of court to avoid costs and [project] delays, and that in one instance wherein a federal court recently issued an injunction that was later lifted, 200 people were out of work for about a month and half. In that instance, he surmised, the lost wages and lost [project] time had an impact on Alaska's citizens and on the companies and employees involved in that project, a railroad spur-line. 2:21:04 PM REPRESENTATIVE LEDOUX questioned the need for the bill, given that [under Rule 65(c),] the court already has the authority to require that security be given. REPRESENTATIVE FEIGE offered his hope that as an expression of legislative intent, passage of HB 47 would influence future court decisions. In response to another question, he confirmed that a direct change to the Alaska Rules of Court would require an affirmative two-thirds vote. REPRESENTATIVE FOSTER pointed out that as currently written, HB 47 does mandate that the court shall require that security be given: language on page 1, lines 1-3, says in part, "An Act  requiring a party ... to give security"[; and language on page 1, lines 7-9, says in part, "A party ... shall give security"]. REPRESENTATIVE FEIGE referred to the language on page 1, lines 8-9, of HB 47 that says in part, "shall give security in an amount the court considers proper"; offered his belief that the court would have the discretion to simply choose a security amount of zero; and reiterated that the bill is not intended to change Rule 65(c) - the bill simply adds a stipulation that the amount the court considers proper could include an amount for the payment of wages and benefits for employers, contractors, and subcontractors. "We would, as a legislature, ... like to see judges ... require actual cash bonds more often," he added in conclusion. CHAIR KELLER ascertained that no one else wished to testify on HB 47. [HB 47 was held over, with the motion to adopt HB 47 as the working document left pending.]