SB 204-WILDFIRES AND NATURAL DISASTERS  MS. VICKI KINDSETH, Staff to Senator Lyda Green, sponsor of SB 204, said SB 204 addressed the concerns of residents during the emergency management of wild fires and other natural disasters. She said SB 204 would give decision-making powers to emergency personnel based on information at hand to allow residents wanting to enter an area under emergency management to do so. She said the residents would be informed of the risks and would enter at their own risk with the responsibility of injury or death taken by the resident. She said the provisions for the decision-making would be authorized by the guidelines adopted by each community. MS. KINDSETH said the crime of unsworn falsification would be amended to include anyone making a false statement of residency in order to enter an area under emergency management. Immunity from liability would be provided for state and municipal governments, emergency service workers and organizations for the injury or death of a person entering an area under emergency management. SENATOR COWDERY said people went to the Big Lake area during the Miller's Reach fire because they were concerned about family members. He asked if SB 204 would still allow them to be in the area. MS. KINDSETH said the emergency guidelines in the packets addressed some of the questions Senator Cowdery raised. She thought that decision would be made at the scene. 2:25 p.m. Chairman Taylor left the meeting. MR. DEL SMITH, Deputy Commissioner, Department of Public Safety (DPS), said Senator Cowdery's concerns were probably the reason SB 204 had been introduced. He said there was a confrontation between troopers and a man who wanted to check on his grandfather during the Lazy Mountain fire near Palmer. He recognized the need to address those issues. He said people came to an area concerned about their parents, children, other family members, pets or house. He said a committee consisting of the Department of Natural Resources (DNR) and other agencies that responded to wildfires was formed after the Lazy Mountain fire. He was not directly involved with the committee but it was his desire to work out some procedures. He said DPS was working with everyone involved to come up with a plan to address individual emergency situations. He met with Lazy Mountain citizens after the fire to listen to their concerns. He said DPS was working to address those concerns. MR. SMITH said SB 204 would allow people to enter an area if they were a resident of the threatened or affected area and appeared to be capable of making a reasonable and informed decision. He was concerned about the ability of law enforcement officers to make that determination. He said these situations involved high emotions on the part of both law enforcement officers and citizens, particularly if people were concerned about their families or property. His experience was that people in emergency situations might not remember what they said. He didn't like putting law enforcement officers in the position of determining whether a person was able to make an informed decision. He said he had never met an emergency responder who would not try to get someone out of a dangerous situation. He was concerned allowing people into an area would hinder the efforts of responders who wanted to rescue them. He didn't think putting SB 204 into statute was the proper way to address concerns about emergency management. He understood that many people felt that agencies wouldn't do anything unless they were required to by statute. But he felt that the agencies were involved in making changes and not having anything in statute allowed them flexibility. He said there was also the problem of letting nonresidents into an area under emergency management. He said SB 204 would allow the State to charge people with making false residency statements in order to get into an area. He noted that when a disaster was large enough and went on long enough some people would try to get into the area to loot unoccupied homes. SENATOR THERRIAULT said he had the same concerns. He asked if somebody who was let in would be issued a red vest or something to indicate that they wished to remain in the area. He didn't know how SB 204 was supposed to work, especially when things in an emergency situation were moving quickly. MR. SMITH said there were problems with emergency situations before. He believed substantial work had gone into addressing the problems. He wanted more flexibility in the future for responding law enforcement officers. He said checkpoints should be updated if a fire had moved substantially in another direction and people should be allowed into the safe area. On the other hand, it was dangerous for people to be in an area if a retardant drop was needed or the fire turned and came back. He said SB 204 would create substantial amounts of potential liability for the State. SENATOR COWDERY said they were discussing people wanting to enter an area. He noted that there would probably be people already in the area before responders arrived. He said these people could be visitors or people driving through as well as residents. MR. SMITH said that was an issue he had struggled with prior to the Miller's Reach fire. As a law enforcement officer he was uncomfortable saying that a person had to leave their residence. He said there was a man who died because he wouldn't leave his home in Washington during the Mount St. Helens eruption. He said it was different if someone wanted to go in an area to protect his or her residence. He said those people should be given warning that there was an emergency situation. He said that also created a problem with responders trying to get people out of a dangerous area. SENATOR COWDERY Asked if there were any further questions for Mr. Smith. There were none. 2:35 p.m. MS. DEAN BROWN, Deputy Director, Division of Forestry (DOF), DNR, wanted to testify to the steps that had already been taken to address concerns about emergency management. She said this was a complex issue in which the lives of the public and firefighters were in danger. She said Alaska had experienced a number of wildland-urban interface fires and related evacuations. She said the Miller's Reach fire wasn't the first but it was probably the largest and probably received the most publicity. She said the Lazy Mountain fire spurred SB 204. She said the bill addressed a need that was there and was a problem for troopers and fire fighters in responding to all high-risk emergencies. She said safety was DNR's first concern. She said DNR worked with several organizations, including the Division of Emergency Services, the Alaska State Troopers (AST) and the Red Cross, to develop guidelines for an official working document. She said a field guide was created to test evacuation guidelines. DNR felt the field guide would give them an opportunity to further refine the guidelines. She said dozens of organizations responded to huge fires such as the Miller's Reach fire and those organizations also had valid needs and concerns about how an evacuation was carried out. She said they were concerned about documentation making sure all response organizations knew who was in an area and where they were. DNR felt the guidelines gave them a good flexible document to use as a work in progress because they were going to learn as situations progressed. She said DNR was working with various agencies regarding recommendations suggested after an investigation of a fire. She said the guidelines had been created through a good inter-agency effort and were still being revised. She said the statute was inflexible and changes would be difficult to make as they were needed. 2:39 p.m. Chairman Taylor returned to the meeting. MS. BROWN said there might be several entrances into an area under emergency management, each of which would have to be manned by a law enforcement officer in order to control ingress. But people with off-road vehicles could enter an area just about anywhere. She said having unidentified people in an area created a problem because responders needed to document their presence and ensure that they had been informed of the latest changes in the situation. She thought this was a serious issue and commended the sponsor of SB 204 for putting it forth and trying to resolve it. She said DNR worked closely with the Lazy Mountain homeowners' association on the guidelines. She said a number of very good things that were incorporated into the guidelines came from their discussions. She said there were concerns from DNR and AST about the need to protect life in wildland-urban interface fires. She said that was a concern even when a person consented and understood the risks of staying in an area. She said the issue was handled considerably differently in other states. Some states simply determined that if a person entered an area they had been told not to enter, they were completely on their own. She said that created an entirely different level of liability and created serious concerns. She said DNR wanted to protect life and then property and their responders were extremely dedicated. She said the guidelines used in evacuations were a work in progress and improvements would be made. She said trying to determine who was already there, who was passing through, and trying to limit who could enter would create a problem for fire fighters who should be focused on fire suppression and protecting life and property. She said DNR would be happy to continue to work on the guidelines but they needed the flexibility to improve the guidelines. SENATOR COWDERY asked what concerns had been expressed by people who were not supportive of the guidelines. MS. BROWN thought some people felt there shouldn't be any restriction on who could enter an area under emergency management. She said nonresidents might want to check on a family member in the area. She said a resident who was out of the area might also call a friend or family member and ask them to check on pets or children. She said those situations were addressed in the guidelines but not in SB 204. She said some areas were very difficult to get into and out of, such as East End Road in Homer. She said it was difficult to get emergency vehicles into and out of the area and additional traffic into the area could affect response efforts. SENATOR COWDERY said during the Miller's Reach fire there were people who wanted to go in and retrieve personal effects such as pictures and family treasures with the knowledge that the building might burn. He said someone could have been outside and called their children to go get some things. CHAIRMAN TAYLOR asked Mr. Kevin Saxby to provide testimony. MR. KEVIN SAXBY, Assistant Attorney General, Department of Law (DOL), said there were two legal problems with SB 204. He said SB 204 would create a legal right for members of the public to be present in areas under emergency management. He said these were areas that public safety officials would have determined evacuation necessary. He said this would override the public safety tool of evacuation and interfere with emergency responders. He said SB 204 would also create a legal duty for emergency responders to ensure informed consent by residents entering an area. He said DOL believed this would lead to increased litigation and litigation risks. He said Section 1 would make false statements by members of the public regarding residency illegal. He said SB 204 presumed that emergency responders would be able to make that determination. He said DNR firefighters and public safety officers were relatively ill equipped to make those kinds of decisions on the spur of the moment in the field. He said a written consent form could be developed but that would require a higher level of record keeping in order to ensure and later prove that the determinations were properly made. MR. SAXBY said Sec. 2 would create the new rights. He said these rights would be subject to a number of conditions including residency determination. He said residency determination would be very important for the State to address and prove in litigation. He noted that SB 204 didn't provide for the rights of nonresidents or family members to be in the area. It only provided for the rights of the residents of the area. 2:47 p.m. He said SB 204 wouldn't immunize the State from property damage occurring as a result of letting the wrong people into an area. He said property damage often occurred through theft or looting. He said the State would have to undergo a new burden in order to ensure that proper determinations about residency and competency were made. He said requiring informed consent before allowing residents to enter an area would carry public policy implications similar to Miranda warnings. He said Miranda warnings were often videotaped in order to undercut as many legal arguments as possible. He said there could be dozens of people wanting to get into an area during a large emergency situation. He said proving that informed consent was given would be difficult. He said there would be people arguing that the warning wasn't given in enough detail or wasn't understood or people were incapable of making a reasoned and informed decision because they were afraid, confused or lacked mental capacity. He said SB 204 would also allow people who wouldn't be interfering with the responders' efforts into an area. He noted that the non-interference would only apply to access. He said SB 204 didn't address people interfering with a backfire or a retardant drop. He said there would be costly litigation about the level of non-interference needed to override the rights created in SB 204. He noted that the legislature could create the rights but the courts would have to interpret the rights. He said the immunity clause for the State would only cover the injury or death of a person entering an area. It wouldn't immunize the State or the responders against property damage. He said property damage was the most common damage that occurred in emergency situations. He said people would be able to tie property damage to an evacuation decision or a faulty residency determination. SENATOR COWDERY said there was a nonresident in the Miller's Reach fire who had rented a generator and went to the property to wet the generator down and run the pump so water would be available. He asked if SB 204 would allow that. He acknowledged that the person's right to be there would be difficult to prove on the spot. TAPE 02-13, SIDE B  1:50 p.m. MR. SAXBY said it would be difficult to make the determination. He noted that SB 204 didn't address the right of nonresidents to enter the area. He said it was presumed that the legislature had looked at all possibilities and alternatives for State action when they addressed a concern. He said SB 204 would give a right to a certain class of people. He said it would be presumed that the legislature didn't intend for other people to have the same right. He said there would be litigation and a lot of argument that statute had been violated if emergency responders allowed nonresidents into an area. SENATOR THERRIAULT said Mr. Saxby mentioned that the informed consent could be given in a written statement. He said he had to sign a waiver before he went rafting at McKinley. He said the waiver was nothing more than a speed bump in the road of litigation. He said people would say they were distraught because they thought there was a family member, pet or heirloom in the area. He said Mr. Saxby had done a good job explaining that there was no good way to limit the liability of the State and a statute wasn't necessarily enough protection. He asked if Mr. Saxby was directly involved in putting together the fiscal note. MR. SAXBY said he was. He noted that it was an indeterminate fiscal note. SENATOR THERRIAULT said it would cost the State money but there was no way of determining how much. MR. SAXBY said that was correct. CHAIRMAN TAYLOR asked if the State had been sued over any of the recent fires. MR. SAXBY said the State was still involved in very heavy litigation regarding the Miller's Reach fire. CHAIRMAN TAYLOR asked what that litigation alleged. MR. SAXBY said the main point of the allegation was that negligent decision-making on the part of State personnel during the first day or so of the response caused or exacerbated the property damage that ensued. CHAIRMAN TAYLOR asked if any of that litigation had been lost. MR. SAXBY said they had lost some initial motion practice. He said that was before the Supreme Court but the case had not gone to trial. CHAIRMAN TAYLOR asked for suggestions from Mr. Saxby on how the legislature might enact a law that would provide that people use a level of common sense. MR. SAXBY asked if he was speaking of responders or the public. CHAIRMAN TAYLOR said he was speaking of both. He said existing laws implied that responders would use some level of common sense in determining who they allowed into an area and in the way they dealt with wildland-urban interface fires. He said there were obviously people who felt they had not done so. He said since the responders didn't seem to do a very good job deciding who should enter an area, SB 204 was filed to leave those determinations up to the people who lived in the area and had some interest in saving their own property. He said fires weren't the only concern. He noted that there were areas in the state that were subjected to flood, earthquake and tsunami. He said a flood could happen in the Knik River area and a Fish & Game officer who happened to be the only law enforcement officer with a boat would be deciding who could go back to their farm and try to save their cows or who could go back to their house to save their dog. He asked for suggestions on how to better tailor SB 204 so that it would end up with at least some form of standard by which a reviewing body such as the court or the legislature might address natural disasters in the future. MR. SAXBY was sorry that he didn't have any suggestions. He cautioned that any guidelines that were adopted should be very general and broad. He said once a statute was adopted and a legal standard was set people would only need to prove that the State had violated the statute to prove their negligence case. He said that was called negligence pro se doctrine. Then they would just have to prove damages. He said there was a big difference between guidelines that were internal policy adopted by an agency and guidelines set into statute by the legislature. He said it upped the ante when the legislature put them into statute. CHAIRMAN TAYLOR said there could be a situation where somebody called to ask responders to check on their family and nobody bothered to do so for two days. He said in that situation the State could be sued. He asked if that was the kind of guideline he was talking about. He asked if there should be a statute mandating that such a call should be responded to within 12 hours or the department would be held liable. MR. SAXBY said any specific deadline put into statute would inevitably lead to greater litigation risk for the State. CHAIRMAN TAYLOR understood his concerns. He said at some point the legislature had to consider whether it was a risk of litigation to the State or a risk of loss to the people of the state. He said that was a very delicate balance. He appreciated Mr. Saxby's advocacy for the State and the work he had done on SB 204. He said the committee would appreciate suggestions on how to make it a better piece of legislation. He asked Ms. Barbara Leiss to provide testimony. MS. BARBARA LEISS said she and her husband, Mr. Hilary Leiss, supported SB 204. She said it had been three years since the Lazy Mountain fire, which started the process. She was disturbed listening to the testimony saying law enforcement officers needed more flexibility. She felt they had all the flexibility in the world during the Lazy Mountain fire and they abused it and misused it. She said another testifier said SB 204 would create a new right. She said it was a legal right that had been taken away from the people. She said SB 204 was needed to protect the people. She said law-abiding citizens wanted to make the legislators understand that they were supposed to enact laws that were for the people and not against the people. She said without SB 204, Alaska would be nothing more than a police state with all the authority and control of lives in the hands of public servants hired and paid for by the people. She said SB 204 would place constitutional rights and control over their own lives back into the hands of the people. She said they didn't wish to be threatened or coerced by the police like they were during the Lazy Mountain fire. She said they were honest citizens who merely wished to protect their homes and families. She said the existing law went against human nature and the desire to save loved ones and prevent destruction to their homes. She said no one should prevent them from performing that natural act. She said power over others should never be given to the police or any other public servants without also demanding accountability for their actions and punishment for inappropriate actions. MS. LEISS said there was a young man who was running home to protect his new wife and grandfather and save his farm. She said the police brought him to his knees, put a gun to his head, handcuffed him and dragged him off to jail. She said he had to spend a lot of money to defend himself and his natural born rights. She said Alaskans were survivors who were used to helping themselves and neighbors. She said Alaskans didn't need to be coddled. She said this wasn't a communist regime. She wanted elected and hired public servants to understand and accept their individual independence. She said they were capable of exercising common sense during a natural disaster. She said the Lazy Mountain community worked with DPS, AST and DOF regarding the guidelines. She said the guidelines were very well written and the community had accepted them. She said the guidelines had also been presented to and accepted by surrounding communities. She said SB 204 would merely back up those accepted guidelines. She said SB 204 needed to become law because there could be a change in the different heads of the agencies. She said two of the individuals who helped to draw up the guidelines weren't with the agencies anymore. She said they needed to make sure that if there were a change in personnel the guidelines wouldn't be changed and would remain the way the communities had accepted them. She noted that the guidelines accounted for several possible situations. She said there was a young man who had been born and raised in Lazy Mountain who was house sitting his father's house. He lived in Dutch Harbor so he had no other place to go. She said he was prevented from going back to the house he was watching for his father. She said Alaska drivers' licenses didn't have a physical address on them. She said anybody looking in their wallet would have a hard time finding anything with their physical address on it. She said the guidelines addressed that as well. MS. LEISS said the communities had accepted the guidelines. She wondered why the officials were so worried about SB 204 becoming law. She said people would litigate against the State for everything and anything. She said the officials in charge of forestry, fire and law enforcement had fallen down on the job during the Miller's Reach and Lazy Mountain fires. She said that was why the people had risen up and wanted SB 204 to protect them. She expected the Judiciary Committee to pass SB 204 and give them back their rights. CHAIRMAN TAYLOR asked if there was anybody else who wished to testify on SB 204. There was nobody. SENATOR THERRIAULT asked why was there a problem with putting the guidelines in SB 204 into law if they would just back up the guidelines that had been developed. He asked if the bill went further than the guidelines. CHAIRMAN TAYLOR said SB 204 would put into statute many of the guidelines found in the field guide. He said the field guide was an evolving process that had been developed while working with agencies and citizens. He said the State felt it should not be put into law too quickly because changes might be needed. He said it was his intention to move SB 204 out of committee. He said the next committee of referral was the Senate Resources Committee, which had a broader panel than the Senate Judiciary Committee. He hoped that before SB 204 left Resources, there would be some finalization of the guidelines that might be sufficient and incorporated into regulations. He said if that didn't happen, the Legislature would continue to work on and move SB 204. 3:10 p.m. SENATOR COWDERY moved SB 204 out of committee with attached fiscal note and individual recommendations. There being no objection, SB 204 moved out of committee with attached fiscal note and individual recommendations.