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.