HB 399-STATE HISTORICAL ARTIFACTS; CRIMES  1:19:30 PM CHAIR CLAMAN announced that the first order of business would be HOUSE BILL NO. 399, "An Act relating to misconduct involving confidential information; relating to artifacts of the state; and relating to penalties regarding artifacts or historic, prehistoric, or archeological resources of the state." 1:20:16 PM JUDY BITTNER, Chief/State Historical Preservation Officer, Office of History and Archaeology (OHA), Division of Parks and Outdoor Recreation, Department of Natural Resources (DNR), stated that OHA provides statewide historic preservation programs to identify, document, study, evaluate, protect, restore, and exhibit prehistoric, archaeological, and historic sites and buildings. The office works under the state authority of the Alaska Historic Preservation Act and the federal authority of the National Historic Preservation Act. She continued that OHA also serves as the State Historic Preservation Office, which administers federal historic preservation programs, represents the state's interest in protecting heritage resources, and ensures federal agencies are complying with laws and regulations. 1:21:22 PM CHAIR CLAMAN requested a motion. 1:21:41 PM VICE CHAIR SNYDER moved to adopt the proposed committee substitute (CS) for HB 399, Version 32-GH2541\I, Bullard, 4/4/22, as a working document. There being no objection, Version I was before the committee. 1:22:04 PM MS. BITTNER, continuing the introduction, said that under the National Historic Preservation Act, OHA reviews projects, maintains a historic inventory of resources in Alaska, and administers grants and programs. She said that under the Alaska State Preservation Act, OHA staffs the Alaska Historical Commission, issues permits for state lands, maintains an inventory, assists designating sites and monuments, and serves as the Geographic Names Board. 1:23:52 PM MS. BITTNER explained that HB 399, [Version I], would enhance protection of artifacts and archaeological sites by increasing criminal penalties for violations of the Alaska Historic Preservation Act. CHAIR CLAMAN questioned whether adding [the stipulation of] a mental state would create a new crime. 1:24:47 PM MS. BITTNER stated that there are criminal penalties today, and the proposed legislation would clarify the penalties by adding a felony. She said the Department of Law (DOL) suggested that adding a mental state would help with prosecution and implementation of penalties concerning intentional acts, such as stealing or vandalizing artifacts. 1:26:35 PM CHAIR CLAMAN expressed the understanding that the crimes already exist in statute under Title 41. He said that the proposed legislation would add a mental state to the crimes. He questioned Kaci Schroeder what the mental state would be without the proposed legislation. 1:26:51 PM KACI SCHROEDER, Assistant Attorney General, Criminal Division, Department of Law, stated that DOL would default to mental states addressed in Title 11, which are "knowing" as to conduct and "reckless" as to the circumstance. She stated that the inclusion of a mental state in the proposed legislation would clarify and assist practitioners. She expressed hope that the clarification would reduce arguments, "because occasionally we can argue about that stuff when it is outside of Title 11." She stated this would be an attempt to make it clearer. 1:27:19 PM CHAIR CLAMAN questioned whether there should be [a clarification of] a mental state, as the standard already exists in the U.S. Supreme Court and Alaska Supreme Court. He considered that even if [the legislation] does not list a mental state, there would have to be a mental state. He questioned whether the common law argument about the mental state in the existing statute would apply. 1:27:52 PM MS. SCHROEDER, in response, expressed the opinion that DOL would likely argue there was some sort of negligence, but DOL would like to avoid arguments which could result in bad case law. CHAIR CLAMAN suggested that DOL would argue the mental state is negligence for the criminal conduct, and the defense would argue there is a higher mental state. He expressed the understanding between criminal negligence and ordinary negligence. He questioned whether DOL would be arguing the lower mental state, while the defense would be arguing something else. MS. SCHROEDER responded that there is a possibility that a prosecutor could argue a lower mental state. She said, "I will tell you though, the way these ... crimes are drafted, it is very hard to imagine something that is not intentional or knowing. I think that would be a tough argument for us to win." She explained that this is the reasoning for the inclusion [of a mental state] in [Version I], to attempt to reduce this level of argument, so DOL could focus on the prosecution. MS. SCHROEDER, in response to a series of follow-up questions, stated that these crimes are not prosecuted frequently. She related that the record shows two referrals. In response to a second question, she stated that in 2015 one case had been referred, and the prosecution of this case is complete, while the other referral has been more recent, and it is unclear if there will be a prosecution. In response to a third question, she specified the cases had been referred to DOL for prosecution, not the federal government. 1:29:27 PM CHAIR CLAMAN questioned whether fish and wildlife violations and artifact cases would more often be in federal court than in state court. 1:29:45 PM MS. SCHROEDER responded that DOL frequently prosecutes fish and game [violations], but she expressed uncertainty concerning the number of cases which have been referred to the federal government. She stated that DOL retains a prosecutor who focuses on these crimes, so they are prosecuted with some frequency [in state court]. CHAIR CLAMAN questioned whether most fish and game violations concern how the hunting took place and the manner [the animal] was taken, as opposed to Lacey Act violations on the federal level, which points to the species taken. MS. SCHROEDER responded in the affirmative. 1:30:25 PM CHAIR CLAMAN questioned the distinguishing feature in the proposed legislation which would "bump" the level up from a misdemeanor to a felony. MS. SCHROEDER responded that [Version I] is currently drafted so Section 1 would be a misdemeanor and Section 2 would be a felony. In response to a follow-up question, she laid out that the distinguishing conduct in Section 1 would be excavating, removing, or destroying the artifact, and in Section 2 it would be transporting, buying, selling, or possessing the artifact. 1:31:13 PM REPRESENTATIVE DRUMMOND, per the Alaska Historic Preservation Act, questioned Ms. Bittner whether artifacts in their natural settings and artifacts in museums are both included in the preservation of resources. 1:32:01 PM MS. BITTNER responded that both would be correct. She said artifacts are preserved in place at sites, and a permit would be issued to excavate the site. When artifacts are removed with a permit, they are reposited in the Alaska State Museum in Juneau or in the Museum of the North in Fairbanks. She provided that other museums may borrow the artifacts for displays. 1:32:47 PM REPRESENTATIVE DRUMMOND, with a follow-up question, expressed the understanding that when an industry would like to use a potentially historic or prehistoric piece of land, the industry would obtain a permit to remove any artifacts from "harm's way." She questioned whether [Version I] would be referring to this type of permit. 1:33:59 PM MS. BITTNER responded that she is very familiar with the process, as OHA is involved in thousands of projects, and, in her position, she would be consulted with all federally funded and state public construction projects. She said when there is an adverse effect on a site, there would be a consultation to negotiate a mitigation for the adverse effect. If it is a state site, there would be a programmatic agreement or memorandum agreement to spell out the mitigation and excavation process. If the site cannot be avoided, the data will be recovered, and if it is on state land, the artifacts will either go to the Museum of the North or the Alaska State Museum. If it is found to be on private land and part of the state's heritage, there would be mitigation. She explained the process of determining what would happen to the artifacts, as the type of mitigation can vary. 1:36:21 PM REPRESENTATIVE DRUMMOND, with a follow-up question, asked whether this would apply, for example, when land is cleared for electric transmission lines. She questioned whether the same kind of care to investigate the potential for archaeological resources would be taken. 1:36:48 PM MS. BITTNER responded in the affirmative. 1:37:04 PM VICE CHAIR SNYDER requested a written progression of the legislation from the initial draft to [Version I], including who participated and why the legislation had been instigated. She questioned whether Alaska Native organizations had been consulted. MS. SCHROEDER responded that the current version of the bill has taken "a while to get to," and DNR would need to be consulted on the progression of the bill. CHAIR CLAMAN deferred the question to the next hearing on the legislation. 1:38:04 PM CHAIR CLAMAN announced that HB 399 was held over.