HOUSE RESOURCES STANDING COMMITTEE February 14, 1996 8:07 a.m. MEMBERS PRESENT Representative Joe Green, Co-Chairman Representative William K. "Bill" Williams, Co-Chairman Representative Scott Ogan, Vice Chairman Representative Alan Austerman Representative John Davies Representative Pete Kott Representative Don Long Representative Irene Nicholia MEMBERS ABSENT Representative Ramona Barnes COMMITTEE CALENDAR CS FOR SENATE BILL NO. 190(RES) am "An Act establishing a residency requirement for auctions of state land." - PASSED CSSB 190(RES)am OUT OF COMMITTEE *HOUSE BILL NO. 357 "An Act relating to the issuance of hunting, trapping, and noncommercial fishing licenses, tags, and permits and to residency for fish and game purposes; and providing for an effective date." - PASSED CSHB 357(RES) OUT OF COMMITTEE *HOUSE BILL NO. 386 "An Act relating to cruelty to animals and the provision of food and water to confined or impounded animals." - PASSED CSHB 386(RES) OUT OF COMMITTEE (* First Public Hearing) PREVIOUS ACTION BILL: SB 190 SHORT TITLE: RESIDENCY REQUIREMENT/STATE LAND AUCTION SPONSOR(S): SENATOR(S) TAYLOR, Leman, Kelly, Pearce, Salo, Sharp, Green, Lincoln, Halford, Torgerson, Miller, Donley; REPRESENTATIVE(S) Grussendorf, Williams JRN-DATE JRN-PG ACTION 12/29/95 2056 (S) PREFILE RELEASED - 12/29/95 01/08/96 2056 (S) READ THE FIRST TIME - REFERRAL(S) 01/08/96 2056 (S) RESOURCES 01/30/96 2250 (S) RES RPT CS 5DP 1AM SAME TITLE 01/30/96 2250 (S) ZERO FISCAL NOTE TO SB (DNR) 02/02/96 2278 (S) ZERO FISCAL NOTE TO CS (DNR) 02/05/96 2304 (S) RULES TO CALENDAR 2/5/96 02/05/96 2305 (S) READ THE SECOND TIME 02/05/96 2305 (S) RES CS ADOPTED UNAN CONSENT 02/05/96 2305 (S) COSPONSOR(S): SALO, SHARP, GREEN 02/05/96 2305 (S) LINCOLN, HALFORD, TORGERSON 02/05/96 2305 (S) TORGERSON, MILLER, DONLEY 02/05/96 2305 (S) AM NO 1 ADOPTED UNAN CONSENT 02/05/96 2305 (S) ADVANCED TO THIRD READING UNAN CON 02/05/96 2305 (S) READ THE THIRD TIME CSSB 190(RES) AM 02/05/96 2306 (S) PASSED Y20 N- 02/05/96 2310 (S) TRANSMITTED TO (H) 02/07/96 2640 (H) READ THE FIRST TIME - REFERRAL(S) 02/07/96 2640 (H) RESOURCES 02/07/96 2667 (H) CROSS SPONSOR(S): GRUSSENDORF 02/09/96 2708 (H) CROSS SPONSOR(S): WILLIAMS 02/14/96 (H) RESOURCES 8:00 AM CAPITOL 124 BILL: HB 357 SHORT TITLE: RESIDENCY REQUIREMENT:FISH & GAME LICENSE SPONSOR(S): REPRESENTATIVE(S) OGAN JRN-DATE JRN-PG ACTION 12/29/95 2359 (H) PREFILE RELEASED 01/08/96 2359 (H) READ THE FIRST TIME - REFERRAL(S) 01/08/96 2359 (H) RESOURCES, FINANCE 02/14/96 (H) RES AT 8:00 AM CAPITOL 124 BILL: HB 386 SHORT TITLE: CRUELTY TO ANIMALS SPONSOR(S): REPRESENTATIVE(S) GRUSSENDORF, Finkelstein, B.Davis JRN-DATE JRN-PG ACTION 01/05/96 2367 (H) PREFILE RELEASED 01/08/96 2367 (H) READ THE FIRST TIME - REFERRAL(S) 01/08/96 2367 (H) RESOURCES, JUDICIARY 02/14/96 (H) RES AT 8:00 AM CAPITOL 124 WITNESS REGISTER JOE AMBROSE, Legislative Assistant to Senator Robin Taylor Alaska State Legislature Capitol Building, Room 30 Juneau, AK 99801 Telephone: (907) 465-3873 POSITION STATEMENT: Testified on SB 190. RON SWANSON, Deputy Director Division of Lands Department of Natural Resources 3601 C Street Anchorage, AK 99501 Telephone: (907) 269-8503 POSITION STATEMENT: Testified on SB 190. MAJOR BUELL RUSSEL, Deputy Director Division of Fish and Wildlife Protection Department of Public Safety 5700 East Tudor Road Anchorage, AK 99507-1225 Telephone: (907) 269-5682 POSITION STATEMENT: Testified in support of HB 357. CAPTAIN RICHARD GRAHME Division of Fish and Wildlife Protection Department of Public Safety 5700 East Tudor Road Anchorage, AK 99507-1225 Telephone: (907) 269-5589 POSITION STATEMENT: Testified in support of HB 357. PAUL JOHNSON P. O. Box 22 Elfin Cove, AK 99825 Telephone: (907) 789-0944 POSITION STATEMENT: Testified in support of HB 357. EDDIE GRASSER Alaska Outdoor Council 4506 Robbie Road Juneau, AK 99801 Telephone: (907) 463-3830 POSITION STATEMENT: Testified in support of HB 357. REPRESENTATIVE BEN GRUSSENDORF Alaska State Legislature Capitol, Room 415 Juneau, AK 99801 Telephone: (907) 465-3824 POSITION STATEMENT: Testified on HB 386. TERRI TIBBETT, Legislative Staff to Representative Ben Grussendorf Alaska State Legislature Capitol Building, Room 415 Juneau, AK 99801 Telephone: (907) 465-3824 POSITION STATEMENT: Available for questions on HB 386. JERRY LUCKHAUPT, Legislative Counsel Division of Legal Services Legislative Affairs Agency 130 Seward Street, Suite 409 Juneau, AK 99801-2105 Telephone: (907) 465-2450 POSITION STATEMENT: Testified on HB 386 MICHAEL GATTI, Borough Attorney Matanuska-Susitna Borough 350 East Dahlia Avenue Palmer, AK 99645-6488 Telephone: (907) 745-4801 POSITION STATEMENT: Testified in support of HB 386. EDNA ANDERSON Farm Bureau P. O. Box 441 Homer, AK 99603 Telephone: (907) 235-8433 POSITION STATEMENT: Has concerns with HB 386. JIM JENNINGS 422 NRA Lane Fairbanks, AK 99709 Telephone: (907) 479-6598 POSITION STATEMENT: Has concerns with HB 386. BEVERLY NESTER 5465 Chena Hot Springs Road Fairbanks, AK 99712 Telephone: (907) 488-6356 POSITION STATEMENT: Has concerns with HB 386. DIXIE JENNINGS 422 NRA Lane Fairbanks, AK 99709 Telephone: (907) 479-6598 POSITION STATEMENT: Has concerns with HB 386. DAN LaSOTA Fairbanks North Star Borough 693 Manchester Loop Fairbanks, AK 99712 Telephone: (907) 479-0650 POSITION STATEMENT: Testified in support of HB 386. ANNE CARPENETI, Attorney Criminal Division Department of Law P. O. Box 110300 Juneau, AK 99811-0300 Telephone: (907) 465-3600 POSITION STATEMENT: Testified in support of HB 386. ACTION NARRATIVE TAPE 96-16, SIDE A Number 000 CO-CHAIRMAN JOE GREEN called the House Resources Committee meeting to order at 8:07 Members present at the call to order were Representatives Green, Ogan, Austerman, Davies, Kott and Long. Representatives Barnes, Nicholia and Williams were absent. SB 190 - RESIDENCY REQUIREMENT/STATE LAND AUCTION Number 044 JOE AMBROSE, Legislative Assistant to Senator Robin Taylor, testified on behalf of Senator Taylor, sponsor of CSSB 190 (RES)am: "Senate Bill 190 was introduced to correct a situation which allowed ten percent of the state land sold at the first public auction since 1991 to be purchased by non-residents. This in a state where only about one percent of the land is in private ownership. MR. AMBROSE continued, "Current law restricts the homestead program to Alaska residents, but no such provision is made for the sale of other land, sold at auction. As a result, of the 204 parcels actually sold in 1995, 21 went to out-of-state bidders. In eleven cases, these nonresidents beat out otherwise qualified state residents. MR. AMBROSE stated, "Imagine how it must feel to the resident of Fairbanks who submitted a bid on state land, only to be beat out by a resident of Washington state by $61.80. Or the Wasilla couple who lost their chance at owning a piece of Alaska to a Minnesota woman by $442? Or the Anchorage woman who lost out to a man from Michigan by $214? MR. AMBROSE proceeded, "To add insult to injury, the availability of state land to out-of-state residents was actually promoted on the Internet by the Alaska Tourism Marketing Council. A Council spokesman said they were trying to promote the "Alaska mystique." Maybe the Council thinks there is something mystical about the shortage of private land in Alaska, but the average Alaska is more frustrated than mystified. MR. AMBROSE concluded, "SB 190 would restrict participation in the public auction of state land to people who have been residents of the state for at least one year prior to the sale. The bill was amended to place no such restriction on the disposal of commercial, industrial or agricultural land. I don't believe we want to inhibit those who would purchase land for growth and development. But the sale of recreational and residential property, like the homestead program, should be restricted to folks who have already made an investment by residing in this great state." Number 243 REPRESENTATIVE JOHN DAVIES appreciated the motivation behind SB 190. He said it would be frustrating to get beat out by $61.00, but equally frustrating if it were another Alaskan resident that won by $61.00 as well. REPRESENTATIVE DAVIES said that allowing outsiders to buy land in Alaska is not necessarily detrimental in every instance, and he alluded to a former Alaskan wanting to participate. REPRESENTATIVE DAVIES asked what the overall percentage was in this particular land sale. What was the percentage of Alaskans getting in versus the percentage of people outside of Alaska? Number 378 MR. AMBROSE replied, right at 10 percent went outside. MR. AMBROSE pointed out that this would only restrict the sale on the first go-around. The state has gone to an auction system rather than lotteries because it is less expensive to manage and the minimum bid is the assessed value. Property that is not sold in the first round becomes an over-the-counter sale to anyone who wants to walk in and buy it. So, that former Alaskan would have the opportunity to walk in to the Department of Natural Resources and purchase property. MR. AMBROSE stated that this year, since the 1991 Mental Health Lands Trust dispute, is the first year that the state has had a sale. He said the bill restricts the land sale, on the first go- around, to Alaska residents and if the property is not sold then it becomes available to anyone who wants to buy it. Number 455 CO-CHAIRMAN GREEN asked if the state of Alaska financially benefitted from outside competition. MR. AMBROSE stated that the impact is so minimal the Department of Natural Resources placed a zero fiscal note on SB 190. Number 498 REPRESENTATIVE DON LONG asked for clarification on the one-year residency requirement. MR. AMBROSE responded that the one-year residency requirement seems to be an acceptable standard. The sponsor would argue that the state does have an interest in restricting the sales, at least on the first go-around. Number 572 REPRESENTATIVE SCOTT OGAN expressed appreciation that agricultural and industrial lands are excluded from the legislation. Number 610 REPRESENTATIVE DAVIES addressed Representative Long's question about the one-year residency requirement asking if Mr. Ambrose' answer also dealt with the equal protection concerns of the people of the United States. MR. AMBROSE responded by reading a memorandum from Jack Chenoweth, Legislative Legal Services, "I am required to transmit with the bill a memo cautioning that the bill, both as it was introduced and as offered in the Senate Resources Committee, MAY present constitutional questions. Objection may be taken either under privileges and immunities, Article IV, Section 2, U. S. Constitution, or with reference to the one year durational residency requirement under the equal protection clause. It is hard to say where the court will come out on this. On the privileges and immunities questions, the U.S. Supreme Court has been inclined to reject state efforts to withhold privileges for nonresidents and the justification for the regulation involved nonresident economic or employment opportunities and the right to travel, but has been less demanding when the state has acted to protect for the benefit of its residents as against nonresidents. State institutions that were established and are supported primarily for the benefit of state residents. Similarly, the validity of durational residency requirements will depend on the courts trying to find whether the legislation strikes a proper balance between legitimate state interests and the classification it has drawn. I cannot provide definitive advice on these points, but I am sending this memo along only to note potential (indisc)." Number 744 REPRESENTATIVE DAVIES said that part of the justification for this bill is the stated possibility of land available to Alaskans. Yet you have just argued that there is a lot of land available over- the-counter. He said those are contradictory positions. MR. AMBROSE said the property that becomes available over-the- counter because it was not sold at auction would indicate that it is less desirable. The more desirable pieces go first at auction. Number 841 REPRESENTATIVE ALAN AUSTERMAN asked the residency requirement for homesteaders. MR. AMBROSE replied that he was not certain. Number 872 RON SWANSON, Deputy Director, Division of Lands, Department of Natural Resources said the homestead and homesite residency requirement is one year. Number 880 REPRESENTATIVE AUSTERMAN asked if the homestead residency requirement had been tried in court. MR. SWANSON responded that the homestead resident requirement had not been challenged in court. He said the only time a residency requirement had been challenged was in the early 1970s. The Kenai Peninsula Borough restricted their land sales to only borough residents. That was challenged in court and upheld. Number 931 MR. SWANSON said he would elaborate on Mr. Ambrose' testimony. The state offered 417 parcels for sale in October, 1995. 383 were subdivision residency or recreational lots, 34 were agricultural. 205 of those were sold at the auction and 21 of those went to non Alaskans. Of those 21, nine lots were not even bid on by Alaskan residents. MR. SWANSON said of the 53 homestead parcels offered in the state lottery, the department received 4,133 applications for those parcels. MR. SWANSON said starting in January 1996, the lots that were not sold at the auction, 214 were put up over-the-counter. 14 of those have been purchased by non Alaskans out of 122 applications. He said as of today, we still have 132 of those parcels available for sale. Number 1010 MR. SWANSON said a total of $4.2 million total was brought in for land sales this year. Number 1020 CO-CHAIRMAN GREEN said, on those recycled tracts, does the department maintain the requirement that the appraised value is the minimum bid. MR. SWANSON responded that the state sells at the fair market value, the appraised value. Number 1038 REPRESENTATIVE DAVIES asked Mr. Swanson if he had any concerns about the passage of SB 190. Would it have a detrimental affect on being able to sell the lands that you are offering? MR. SWANSON replied that considering the state only sold 21 of the 417 parcels to non Alaskans and the lots that are available over the counter, he does not see a problem. He said the 417 parcels offered by the state are basically recycled lots. Parcels that were foreclosed on or people just gave up on. Number 1125 REPRESENTATIVE OGAN moved that CSSB 190(RES)am move from the House Resources Committee with individual recommendations and attached zero fiscal note. Hearing no objections, it was so ordered. HB 357 - RESIDENCY REQUIREMENT:FISH & GAME LICENSE Number 1163 REPRESENTATIVE OGAN said the HB 357 is a long overdue housekeeping measure in Title 16 that deals with residency licensing privileges: "HB 357 simplifies the enforcement of residency requirements for hunting, trapping, and noncommercial fishing licenses. This legislation will reduce the number of nonresidents who use loopholes in current state residency laws to hunt, trap, and fish Alaska's resources. After meeting and working diligently with the Department of Law, Department of Fish and Game, Department of Public Safety and Legislative Legal Services, this bill was drafted to accommodate all the participants concerns addressed during those discussions. "The definition of residency was separated into subsections for clarification purposes. In these subsection, you will note the different changes that were made to better define the rules of residency for Title 16 purposes. "Also, passage of HB 357 could increase revenue annually by thousands of dollars in relationship to current statistics of nonresidents in terms of licenses, game tags and hunting fees for guides." REPRESENTATIVE OGAN said a major point of HB 357 is replacing the language, "permanent place of abode" to "domicile" which makes it clear that the legislature intended only those who are domiciled in the state are entitled to residency licensing privileges. Number 1286 CO-CHAIRMAN GREEN referred to the domicile language on page 3, line 14 and the language on page 3, lines 25 - 27 concerning military personnel who have been stationed in Alaska. He asked why the language "domicile" did not automatically qualify the military. REPRESENTATIVE OGAN discussed the definition of residency and the definition of domicile with Chairman Green. MAJOR BUELL RUSSEL, Deputy Director, Division of Fish and Wildlife Protection, Department of Public Safety, said he was available for questions and deferred to Captain Grahme. Number 1432 CAPTAIN RICHARD GRAHME, Division of Fish and Wildlife Protection, Department of Public Safety, testified in support of HB 357 stating that the division had worked on the bill over the past several months with Representative Ogan and the departments of law and fish and game. He said the definition of residency is of importance to the department. It has caused problems in the past of prosecuting cases and simply responding to what the state's residency requirements are and what has to be done to meet those requirements. It is not just a matter of enforcement, it is also a matter of providing a service and answers to the public. He said equally important to know is residency privileges of other states. Number 1552 CAPTAIN GRAHME said in Section 16.05.940(c) and Section 16.05.940(26)(d) the branch of United States Coast Guard has been added to the federal definition of military service. Number 1573 REPRESENTATIVE DON LONG referred to page 4, line 3 and asked the difference between one year and 12 consecutive months. REPRESENTATIVE OGAN responded that an individual has to remain in the state for 12 consecutive months. REPRESENTATIVE AUSTERMAN explained that a fisherman might come to Alaska and fish for five months and then return to Bellingham for six months and then return to Alaska again for three months. That fisherman considers himself a resident of the state of Alaska. Number 1663 CO-CHAIRMAN GREEN noted the arrival of Co-Chairman Williams and Representative Irene Nicholia. Number 1710 REPRESENTATIVE OGAN said there is a description in Title 16, the hunting regulations that explains the 12 consecutive months. C0-CHAIRMAN GREEN stated that an individual can be outside the state and travel to and from Alaska as long as domicile is maintained in Alaska. Number 1784 PAUL JOHNSON, Elfin Cove, agreed with the testimony of Major Russel and Captain Grahme. He said, in our small communities in Southeast Alaska, we have a continuing problem with individuals taking advantage of state residency. HB 357 cleans things up and it is enforceable. Number 1831 EDDIE GRASSER, Alaska Outdoor Council, testified in support of HB 357 stating that the bill will close some loopholes and streamline the process on residency requirements. Number 1863 REPRESENTATIVE DAVIES offered an amendment on page 3, line 31. Strike the word "and" and change it to "or." Number 1913 REPRESENTATIVE OGAN said he had no problem with the amendment. Number 1937 CO-CHAIRMAN GREEN stated that the amendment was small but significant. He asked if there were objections to the amendment. Hearing no objection, it was so ordered. Number 1988 REPRESENTATIVE AUSTERMAN moved that HB 357, as amended, move from the House Resources Committee with individual recommendations and attached zero fiscal note. Hearing no objection, CSHB 357(RES) passed from the House Resources Committee. HB 386 - CRUELTY TO ANIMALS Number 2048 REPRESENTATIVE BEN GRUSSENDORF addressed the proposed committee substitute for HB 386. He said the proposed changes offer prosecutors a more workable statute. Changing "intentionally" to "knowingly" lowers the state of mind the state must prove in prosecuting a case. Changing the wording which describes the animal's level of suffering offers more options under which to prosecute and lowers the difficult standard which exists. Number 2159 REPRESENTATIVE GRUSSENDORF discussed the term reckless. He said in order to prove cruelty through neglect, current law requires that the accused acted "recklessly" which means "a person is aware of and consciously disregards a substantial and unjustifiable risk that the result with occur." Number 2198 REPRESENTATIVE GRUSSENDORF stated that the main thrust of the proposed committee substitute for HB 386 is the penalty section. He said a lot of local governments had contacted his office and said they would like to have the power in regards to cruelty to animals. He said Section 2 and Section 5 allow first and second class boroughs to exercise this power. REPRESENTATIVE GRUSSENDORF said there was some concern with Section 3 and Section 6 where some boroughs said they had ordinances that they were operating under and might have to change what they are doing. He offered a proposed amendment to take care of those concerns: Page 2, line 8: Delete "inconsistent with" and insert "more stringent than." Page 2, line 22: Delete "inconsistent with" and insert "more stringent than." Number 2297 REPRESENTATIVE GRUSSENDORF stated that his bill does not apply to lawful hunting and trapping activities and clarified that his intent is not to regulate, but just to be specific with the prevention of cruelty to animals. Number 2397 CO-CHAIRMAN GREEN asked for the adoption of Committee Substitute of HB 386.C as the working document. Hearing no objection, it was so ordered. CO-CHAIRMAN GREEN asked the sponsor if he would like the Resources Committee to move the amendment on page 2, lines 8 and 22. Number 2450 REPRESENTATIVE AUSTERMAN moved to adopt the amendment to CSHB 386. Hearing no objection, it was so ordered. Number 2465 REPRESENTATIVE OGAN asked if the Iditarod Trail Committee or any other dog racing association had contacted Representative Grussendorf about this bill. REPRESENTATIVE GRUSSENDORF asked his staff, Terri Tibbett, to come forward.....(change tape) TAPE 96-16, SIDE B Number 000 TERRI TIBBETT, Legislative Staff to Representative Grussendorf, responded that HB 386 is now before the Iditarod Trail Committee and has not received an official endorsement but, unofficially, Mr. Stan Hooley had expressed his support. Number 039 MS. TIBBETT said the Alaska Animal Control Association also supports HB 386. Number 049 REPRESENTATIVE OGAN asked for more background information on the introduction of this bill and the intent. Number 122 REPRESENTATIVE GRUSSENDORF discussed with the committee the terms of negligence, intent and preponderance of the evidence. Number 153 REPRESENTATIVE LONG related a story about Polar Bears coming into the City of Barrow and having to be chased away. He said people complained about cruelty to the Polar Bears. He said when Polar Bears come to town, they eat people, they are dangerous. He asked if there is a distinction between wild and domesticated animals. REPRESENTATIVE GRUSSENDORF said there is a distinction between wild and domestic animals. He said unless we have a special permit, you and I cannot have control over a wild animal. Number 235 REPRESENTATIVE OGAN asked if criminal negligence was a misdemeanor. He said he takes exception when the state will not pass a statute making it criminally negligent to kill people but we are asking for a statute to make it criminally negligent to kill animals. He said he cannot support this bill and, therefore, put a higher priority on an animal's life than a human's life. Number 341 JERRY LUCKHAUPT, Legislative Counsel, Division of Legal Services, Legislative Affairs Agency, said that Representative Ogan's comments would be better addressed by the Department of Law. He said Alaska has a criminally negligent homicide statute that penalizes the killing of a person with criminal negligence in this state, that is a Class E Felony. He expounded on criminal negligence and Class E Felonies. MR. LUCKHAUPT said that HB 386 reduces the requisite mental states or cruelty to animals in the first degree from intentional conduct to knowing conduct. In this case, it would be intentionally inflicting severe physical pain or prolonged suffering on an animal. Number 509 REPRESENTATIVE AUSTERMAN felt that Representative Ogan's concern was a separate issue and stated that he supports HB 386. Number 540 MICHAEL GATTI, Borough Attorney, Matanuska-Susitna Borough, thanked Representative Grussendorf for bringing the bill forward and stated that it is generally a good bill. He said amending the standard for establishing cruelty to animals is a good step forward because these cases can be difficult to prosecute. MR. GATTI referred to his letter of February 13 to Representatives Ben Grussendorf and Scott Ogan outlining municipal concerns about language in Sections 3, 4, 5 and 6 of HB 386. He said the bill amends the animal control power that is set up by ordinance to prohibit cruelty to animals. He said animal control regulations includes a number of activities other than license, impound, regulate, prohibit cruelty to, or disposition of animals. While the language "prohibit cruelty to" is good language, a good amendment would be to insert instead license, impound, regulate, prohibit cruelty to those animals. MR. GATTI said with respect to municipal powers, they are liberally construed and you would not want to restrict municipal powers in a particular area because they should have the discretion and flexibility to deal with different geographical, social and economic conditions. He said a good example is the Polar Bear story. He said animal control in rural areas is much different that animal control in Anchorage or even Mat-Su. You would not want to undermine the principle that municipal powers are liberally construed. MR. GATTI said if you look at the various municipal animal control codes you will find that not only do they regulate licensing, impounding, cruelty and disposition of animals, but they are concerned about barking dogs, sanitary enclosures, diseased animals, animals near the street, kennel licensing, rabies certificates, adoption, rabies control. If a municipality does not follow the power through an election to make sure that it encompasses all those activities, it could be limited from engaging in those activities. MR. GATTI suggested the word "regulate" be included in those sections because that will allow municipalities more flexibility to protect the public interest. Number 780 MR. GATTI referred to subsection (e) of Sections 3 and 6. He felt that subsection (e) is not needed because municipalities cannot have criminal penalties more stringent than a misdemeanor. He said Title 29, for second class boroughs, limits a municipal penalty for misdemeanors to a $1,000 fine or 90 days in jail. He said that municipalities do not have the jurisdiction to develop felony offenses, and it is his understanding that the state would be responsible for that. A municipality cannot have laws more stringent than the state. Number 859 CO-CHAIRMAN GREEN said that the next committee of referral is the House Judiciary Committee. He said the legality issue might be better addressed by House Judiciary. Number 871 EDNA ANDERSON, President, Farm Bureau - Kenai Chapter, testified from Homer saying that most of her questions had been addressed by previous witnesses. Number 887 JIM JENNINGS testified from Fairbanks that he has been involved with animals for 25 years as a horseshoer. He said what you are trying to do here is give boroughs authority without a vote of the people of the boroughs. He said if there is a problem in the borough, the borough has the ability to go to the vote of the people. It may be costly, but the people are going to pay the bill one way or the other. MR. JENNINGS noted that nowhere in HB 386 does it call for a veterinarian to make the diagnostic call on cruelty to animals. He predicted that without the diagnostic call by a licensed veterinarian, there could be litigation that could cost the borough or the state financially. A licensed veterinarian is the only one who can make a diagnostic call on an animal that will hold up in a court of law. Number 1026 BEVERLY NESTER testified from Fairbanks stating that the language changes in HB 386 are very disturbing to her. The intent, as she understands it, is to lower the standards of intent of cruelty so as to more easily charge an accused and offer more options to prosecute. She feels that if a person is negligent but does not mean to cause harm, they should not be guilty of a crime and should be given a chance to amend the problem without the harassment from power groups. MS. NESTER listed multiple concerns and talked about a concern with selective enforcement and discrimination. She said all citizens should be treated equally under the law including the people in Juneau, Fairbanks, Anchorage, Barrow, Wainwright and Nome. She said if the state foots the bill in unorganized boroughs, it should also foot the bill in the first and second class boroughs. She recommended that any amendments require a vote of the people rather than an ordinance of the borough. Number 1162 DIXIE JENNINGS testified that her concerns echo the two previous speakers and she had nothing new to add. Number 1199 DAN LaSOTA, Assemblyman, Fairbanks North Star Borough, distributed a memorandum dated September 7, 1995 outlining a history of the borough's authority to prosecute cruelty to animals. A second class borough can exercise powers that are approved by the voters and the legislature. MR. LaSOTA said beginning in 1965, the voters approved dog control and, in the ensuing years, various powers were granted by the state through statute. MR. LaSOTA talked about a recent incident involving an owner and a pig. The judge ruled that in a 1978 borough ordinance, the borough adopted more powers than it was entitled to. Specifically, in relation to cruelty to animals, the judge ruled that the borough only has the power to prohibit cruelty to dogs. Cats, pigs and snakes are out of the borough's bounds. MR. LaSOTA stated that further advice from their attorney indicated that there were two options for the borough's cruelty ordinance: go to the voters or have the legislature grant those powers. MR. LaSOTA said the FNSB intent is to get back those powers and the borough passed resolution 95-062 relating to cruelty to animals. MR. LaSOTA said that by asking the state to grant these additional powers, there will be no additional fiscal impact. He said the proposed committee substitute for HB 386 is the best vehicle to attain what the borough needs. Number 1442 REPRESENTATIVE DAVIES clarified that the operative word in the bill is "may" and does not require any municipality to adopt this. It just allows them to adopt it. MR. LaSOTA said that his intent is, if legislation passes during this session, to bring forth an ordinance and hold lengthy public hearings. If the legislation does not pass, his intention is to put it on the ballot. Number 1505 ANNE CARPENETI, Attorney, Criminal Division, Department of Law, testified that the department supports the committee substitute for HB 386. She clarified that this is still a crime and if the state brings charges under this statute, we are obliged to prove our case beyond a reasonable doubt in order to obtain a conviction. She said by changing the mental states required for the state to prove its case, you are still requiring the state to prove that the defendant who is charged with the offense acted, at least, under paragraph 2, with criminal negligence which is different from the standard in civil negligence. She said this is found in the definition section of Title 11. A criminal negligence is a gross deviation from the standard of reasonable care. Civil negligence is less of a deviation. This bill does not reduce the standard of burden of proof in terms of reducing it beyond any state of a crime. The state is obliged to prove, beyond a reasonable doubt, that the person acted with criminal negligence under paragraph 2, and knowingly under paragraph 1. Number 1631 CO-CHAIRMAN GREEN asked the wish of the committee. Number 1637 REPRESENTATIVE DAVIES moved that CSHB 386 amended (RES) move from the House Resources Committee with individual recommendations and attached fiscal note and a note from Chairman Green to the House Judiciary Committee to consider the issue of "regulation." There was an objection, so a roll call vote was taken. Representatives Austerman, Davies, Kott, Long, Nicholia, Williams and Green voted in favor of moving the bill. Representative Ogan voted against moving the bill. So CSHB 386 (RES) moved from the House Resources Committee. ADJOURNMENT There being no further business to come before the House Resources Committee, Chairman Green adjourned the meeting at 9:32 a.m.