HB 47-INJUNCTION SECURITY: INDUSTRIAL OPERATION  1:35:51 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." [This was the third hearing and [CSHB 47(JUD) was before the committee.] LINDA HAY, Staff, Representative Eric Feige, Alaska State Legislature Juneau, Alaska, introduced herself. CHAIR COGHILL asked Ruth Hamilton Heese to again provide testimony on HB 47 because the previous teleconference connection was very garbled. 1:37:11 PM RUTH HAMILTON HEESE, Assistant Attorney General, Civil Division, Environmental Section, Department of Law, Juneau, Alaska, restated the reasons for the exemptions for the primacy programs that were approved by EPA or the Department of Interior for the Clean Water Act regulation, Clean Air Act regulation and the coal program that the state administers under the Surface Mining Control and Reclamation Act. State agencies were concerned that the injunction provisions anticipated in the original language of HB 47 may be viewed by federal agencies as chilling third parties' access to the courts in order to challenge a primacy permit that the state issues. This opened the possibility that the federal agencies would withdraw approval of the federal permitting programs over which the state has primacy. The new language set out in subsection (d) of CSHB 47 address the initial concerns by exempting the state's primacy programs from application in the bill. CHAIR COGHILL asked what process the law would follow if a public interest litigant filed suit under this provision. MS. HAMILTON HESSE deferred to John Hutchison. 1:41:03 PM JOHN HUTCHINS, Assistant Attorney General, Civil Division, Oil, Gas, and Mining Section, Department of Law, advised that it would be identical to the current process under [Federal Rule of Civil Procedure 65]. CHAIR COGHILL asked how the bond would be apportioned for a third party who is largely backed by somebody versus somebody who has a neighborhood problem. MR. HUTCHINS explained that a hearing would be held to determine whether a preliminary injunction should issue. Once the judge has determined that the injunction should issue and that the injury is irreparable, the judge would consider the usual factors under Rule 65. With passage of HB 47, the judge would also consider the wages and benefits for employees or payments that contractors and subcontractors may have suffered and set the appropriate bond. 1:42:56 PM SENATOR WIELECHOWSKI joined the committee. CHAIR COGHILL summarized his understanding. MR. HUTCHISON clarified that it would have to be an injury that can't be compensated by a monetary award if the party prevails. It would have to be an injury that is irreparable. CHAIR COGHILL opened public testimony. 1:44:22 PM BARBARA HUFF TUCKNESS, Director, Legislative and Governmental Affairs, Teamsters Local 959, Anchorage, Alaska, stated support for HB 47. She disagreed with the allegation that the bill does nothing but stop the permitting process. She cited an instance when a union member working on a federal project was laid off for 2-3 weeks when an injunction was filed after the permitting process was complete and the project was ready to go forward. She said she found no similar examples under the state law but the concern is that if there is a wrongful enjoinment, the entity who files the lawsuit needs to have some "skin in the game" because workers are impacted. She stressed that once a contractor has been awarded a contract and has walked through all the appropriate steps, it is only fair to allow the construction to move forward without undue interference. CHAIR COGHILL asked Ms. Hay if she wanted to supplement the record. MS. HAY said she didn't have anything to add. CHAIR COGHILL found no further questions and solicited a motion. 1:48:34 PM SENATOR MCGUIRE moved to report CS for HB 47 from committee with individual recommendations and attached fiscal note(s). 1:49:00 PM SENATOR WIELECHOWSKI objected voicing concern that people whose property is threatened will be financially foreclosed from exercising their constitutional rights to go to the courts to challenge a project. He questioned the need for the legislation when there was already a law on the books that requires security. This legislation is likely to increase the security amounts which will close the door to the courts for the middle class and working families. "I can't support that," he said. SENATOR OLSON said he too objects because it places his constituents at a financial disadvantage. It imposes another hurdle and makes it prohibitively expensive to try to object to development in the rural areas where they live. CO-CHAIR COGHILL stated his support for the legislation based on the testimony from the Department of Law and his belief that this was well within a judge's ability to give proper discretion. He asked for a roll call vote. 1:50:24 PM A roll call vote was taken. Senators McGuire, Dyson, and Coghill voted in favor of reporting HB 47 from committee; Senators Wielechowski and Olson voted against it. Therefore, CSHB 47(JUD) was reported out of the Senate Judiciary Standing Committee by a vote of 3:2.