HB 47-INJUNCTION SECURITY: INDUSTRIAL OPERATION  2:03:50 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." [CSHB 47(JUD) was before the committee.] Noting that this was the second hearing, he asked Ms. Hay if she had any information to add. 2:04:21 PM LINDA HAY, Staff, Representative Eric Feige, Alaska State Legislature, Juneau, Alaska, said Ruth Hamilton Heese is online to address the question that Senator Wielechowski had about the DEC provisions. She added that the sponsor worked closely with the administration during the Interim to address the concerns on permits that the state has received from the federal government through primacy. She noted that Ed Fogels with the Department of Natural Resources (DNR) was available to answer questions about primacy regarding surface coal and Nancy Meade was available to address suggestions from the Court System. SENATOR WIELECHOWSKI asked the Department of Law why clean air and clean water was exempt. RUTH HAMILTON HEESE, Assistant Attorney General, Civil Division, Environmental Section, Department of Law Juneau, Alaska, explained that the state agencies were concerned that EPA or the Department of Interior might view the injunction provision as chilling third party access to the court and withdraw approval of the program. [Teleconference terminated due to indiscernible audio.] 2:07:54 PM JOHN HUTCHINS, Assistant Attorney General, Civil Division, Oil, Gas & Mining Section, Department of Law, Juneau, Alaska, offered to answer questions. SENATOR WIELECHOWSKI referenced page 1, line 9, and asked how he envisions the courts will determine what constitutes proper security. MR. HUTCHINS offered his expectation that it would work in much the same way as securing a bond for a preliminary injunction. The court makes a determination about the amount of security based on testimony during the hearing. SENATOR WIELECHOWSKI asked how much it might cost a middle class homeowner who is trying to enjoin a multimillion dollar mine on the adjacent property. MR. HUTCHINS said he didn't believe the language would change the amount that is required under existing Rule 65, but it does have the effect of asking courts to look at broader policy considerations and the impact of the injunction on people generally. SENATOR WIELECHOWSKI asked, under the current Court Rule 65, if there was a security requirement for an order vacating or staying the operation of certain permits. MR. HUTCHINS replied Court Rule 65 only addresses injunctions. SENATOR WIELECHOWSKI asked if this was a new provision. MR. HUTCHINS answered yes. SENATOR WIELECHOWSKI asked if there was an exemption for an average homeowner who could not afford to challenge a large industrial corporation if the homeowner thought a permit was wrongfully issued. MR. HUTCHINS said no, but if the homeowner can show irreparable injury the court has discretion under Court Rule 65 and discretion under this statute to set a bond that is fair. SENATOR WIELECHOWSKI pointed out that the language on page 1, lines 12-14 appears to remove much of the discretion that the court currently has under Court Rule 65. MR. HUTCHINS responded that the purpose of Court Rule 65 is to try to reach a fair allocation of costs, and it too has mandatory language. He opined that what the wages and benefits language adds is a look at both the costs sustained by the industrial operation and the potential impact on workers and contractors who may or may not be parties to the litigation. CHAIR COGHILL opened public testimony. 2:17:18 PM JAMES SULLIVAN, Southeast Alaska Conservation Council (SEACC), stated that SEACC opposes HB 47 in the belief that Alaskans should always have the right to petition the court if they believe that the government has not done its job properly or if a corporation isn't following the terms of its permit. He maintained that HB 47 created double standards within the legal system by exempting permits under the Clean Water Act, the Clean Air Act, and surface coal mining. This was done because the state was concerned that it would lose its ability to administer permits under those federal programs. This patchwork approach imposes bonding requirements for some permits but not for others. He further highlighted that this law protects the state and municipalities from having to bond, but not private citizens and tribal groups, or Alaskan organizations. MR. SULLIVAN explained that when an Alaska court makes a decision on a temporary restraining order or a preliminary injunction, the plaintiff must show balance of hardships or irreparable harm. Because this standard is already very high the bill doesn't solve any problems, but it would send a clear message to Alaskans that this legislature believes that the value of Alaskans' rights is commensurate to the value of their checkbook. That would be an unfortunate message to send, which is why SEACC opposes HB 47, he concluded. SENATOR OLSON commented that in the recent past Alaska environmental issues have become an international football. Some groups that don't have Alaska's best interest at heart are joining litigation and taking advantage of people in the rural areas and trying to inhibit activities like reindeer herding and hunting. He questioned how to create a reasonable balance between the varied interests because litigation is very expensive. MR. SULLIVAN agreed that litigation can be very costly, but it is SEACC's belief that no one should be financially intimidated from accessing the court. Every Alaskan should have the ability to go to court and say their rights are being violated without having a financial backer. SENATOR WIELECHOWSKI argued that the law as it exists already protects Alaskans. To get a restraining order right now the plaintiff has to prove irreparable harm and post a bond. If the plaintiff loses they'll have to pay attorney's fees under Court Rule 82. He opined that the law is already weighted in favor of industry and HB 47 tips it further by increasing the bond requirement. The average Alaskan won't be able to afford to go to court to get the relief that they are constitutionally entitled to seek, he said. 2:23:38 PM RICK ROGERS, Executive Director, Resource Development Council (RDC), Anchorage, Alaska, stated that RDC supports a rigorous science-based permitting system that allows responsible development of Alaska's resources. RDC also supports public input through the public process, but too often opponents of projects file litigation after the process is complete and it delays or stops the permitted development. If the litigation ultimately is found to have no merit, it is the Alaska workers who suffer the most from lost wages and opportunities. HB 47 helps rectify this by requiring parties seeking a restraining order to post a bond to cover lost wages or benefits if the [project] is found to be wrongfully enjoined. RDC does not believe that the bill prevents appeals or litigation of state permits or that it restricts the rights of public interest litigants. It does force public interest litigants to recognize that there is a financial risk of their actions and it does provide security for Alaska workers. For these reasons, RDC supports HB 47. CHAIR COGHILL asked Ms. Hay if she would like to speak to the issue of the public interest litigant and small property owners. MS. HAY responded that Court Rule 65(c) already says that a bond is required and the amount is at the discretion of the court. Legislative Legal essentially said the courts already have the ability to take wages into account and HB 47 simply highlights that as one relevant economic factor the court should consider. With regard to the homeowner who has a mine next door, that person would have had ample opportunity to talk about it during the permitting process. And if a permit isn't being followed, that should be addressed by the department that issued the permit, not the court. SENATOR OLSON said he assumes that the bill is in response to the suit filed by Bella Hammond and Vic Fischer to stop the Pebble Mine, and he wonders how someone from Shishmaref or Noatak could afford to challenge a major project next door now that there is no longer an ability to do so under the Coastal Zone Management Plan. This appears to be another impediment to the people in rural areas, he said. MS. HAY responded that HB 47 affects industrial operations that occur on state land going forward. It was not crafted for Pebble Mine, but it is one of those operations. 2:30:50 PM CHAIR COGHILL announced he would hold HB 47 in committee for further consideration.