Legislature(2017 - 2018)GRUENBERG 120

04/02/2018 01:00 PM House JUDICIARY

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02:50:17 PM Start
02:50:50 PM HB355
03:08:58 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
-- Delayed to 2:45 pm --
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
        HB 355-FIRE;FOREST LAND; CRIMES;FIRE PREVENTION                                                                     
2:50:50 PM                                                                                                                    
CHAIR CLAMAN announced  that the only order of  business would be                                                               
HOUSE BILL NO.  355, "An Act relating to the  crime of criminally                                                               
negligent burning; relating to protection  of and fire management                                                               
on forested land;  relating to prohibited acts  and penalties for                                                               
prohibited acts on forested land;  and providing for an effective                                                               
CHAIR CLAMAN  referred to the  hearing of 3/19/18 and  noted that                                                               
the committee considered Amendments  1-3; Amendment 1 was adopted                                                               
and Amendments 2, and 3, failed to be adopted.                                                                                  
2:51:49 PM                                                                                                                    
REPRESENTATIVE EASTMAN referred  to the discussion on  one of the                                                               
earlier  amendments which  was put  to the  side pending  a legal                                                               
interpretation  on  the  question  of fire  fighters  serving  as                                                               
police officers.  He advised  that Legislative Legal and Research                                                               
Services confirmed  that this could  potentially be an  issue and                                                               
that no matter  what the circumstances of (indisc.),  that due to                                                               
an  officer status  as  a police  officer  the requirement  would                                                               
"kick in."   He offered  to share Legislative Legal  and Research                                                               
Services memorandum with the committee.                                                                                         
CHAIR CLAMAN  advised Representative Eastman that  he was welcome                                                               
to share  the memorandum  with the  committee, and  asked whether                                                               
Representative Eastman was prepared to move Amendment 4.                                                                        
2:52:50 PM                                                                                                                    
REPRESENTATIVE  EASTMAN commented  that when  the committee  left                                                               
off, he believed there was still open discussion on Amendment 2.                                                                
CHAIR CLAMAN pointed out that Amendment  2 failed by a vote of 2-                                                               
2:53:06 PM                                                                                                                    
REPRESENTATIVE EASTMAN moved to adopt Amendment 4, labeled 30-                                                                  
LS1382\J.5, Radford, 3/16/18, which read as follows:                                                                            
     Page 3, lines 7 - 9:                                                                                                       
          Delete all material and insert:                                                                                       
          "(b)  A person may not set fires or use burning                                                                       
         devices without a permit as prescribed by the                                                                          
     commissioner in regulation."                                                                                               
REPRESENTATIVE KREISS-TOMKINS objected.                                                                                         
2:53:11 PM                                                                                                                    
REPRESENTATIVE  EASTMAN  advised  that  Amendment  4  states,  as                                                               
follows:  "a person  may not  set  fires or  use burning  devices                                                               
without   a  permit   as  prescribed   by  the   commissioner  in                                                               
regulation."  He  opined that that language  matches the original                                                               
intent, it is  reasonable, and makes sure the  prohibition is not                                                               
overly broad, which was his main concern.                                                                                       
2:54:32 PM                                                                                                                    
CHRIS  MAISCH,  Director,  Division of  Forestry,  Department  of                                                               
Natural  Resources,  advised  that   the  Department  of  Natural                                                               
Resources  opposes   Amendment  4  because  it   would  curb  the                                                               
department's existing  authorities that  are "very  important for                                                               
us to  have," rather  than a broad  definition because  there are                                                               
many different reasons  fires can be set that may  not be covered                                                               
under  "burning devices."   For  example,  during timber  harvest                                                               
activities fires can  be set by a  "hot saw," which is  a big saw                                                               
on a piece  of heavy equipment, that hit a  rock, caused a spark,                                                               
and  started a  fire.   He  noted that  it  is not  defined as  a                                                               
burning  device,  but it  set  a  fire,  and other  examples  can                                                               
include ATV's with hot mufflers and  dry grass, or a lawnmower in                                                               
the  urban  interface  sparking  rocks with  its  blades.    This                                                               
amendment  would limit  the ability  for people  to report  these                                                               
types of fires, he said.                                                                                                        
2:55:36 PM                                                                                                                    
REPRESENTATIVE LEDOUX  asked that if  Sec. 7 is violated,  is the                                                               
person subject to criminal liability.                                                                                           
MR. MAISCH answered  that it depends upon  the circumstances, but                                                               
a person could potentially be cited  if the event was viewed as a                                                               
negligent act under current law.                                                                                                
2:56:06 PM                                                                                                                    
REPRESENTATIVE LEDOUX offered concern  that where there is actual                                                               
criminal liability,  the phrase, "or conduct  other activities or                                                               
use land  that increases fire  danger without a  permit," appears                                                               
to be somewhat broad.  While  she understands where Mr. Maisch is                                                               
going when citing  his examples, she said that she  would be more                                                               
comfortable  if  Mr.  Maisch  put those  examples  into  Sec.  7.                                                               
Representative LeDoux related that before  someone is guilty of a                                                               
crime,  there actually  should be  something  specific that  says                                                               
what a person cannot do under the law.                                                                                          
MR. MAISCH answered that it  would be difficult to anticipate all                                                               
of the potential reasons or uses  of land that might cause a fire                                                               
because  the  types of  issues  that  can  occur might  be  quite                                                               
surprising.  For example, he said,  a compost pile started a fire                                                               
a few  years ago, which  was a first in  Alaska, and it  would be                                                               
basically impossible  to anticipate  the various causes  and list                                                               
them.   Simply  because someone  is charged,  he added,  does not                                                               
mean their  due process rights  are not in  place to have  a fair                                                               
and impartial hearing on a charge.                                                                                              
2:57:51 PM                                                                                                                    
REPRESENTATIVE LEDOUX  agreed that  a person may  have procedural                                                               
safeguards after  being charged,  but there  is nothing  in place                                                               
that advises  them as  to exactly  what they  can and  cannot do,                                                               
which bothers her, she commented.                                                                                               
MR.  MAISCH replied  that a  lot of  this is  common-sense during                                                               
fire season as to what can  and cannot take place, and the person                                                               
needs to  think of their  actions and the  potential consequences                                                               
of their  actions.  He  referred to  the education piece  of this                                                               
statute and the department is trying  to educate the public as to                                                               
safe   burning  practices.     The   department's  statutes   and                                                               
regulations are  structured toward  that type  of a  safe burning                                                               
program  and educating  people to  basically be  fire-wise during                                                               
the fire season.  Under  AS 41.15.070, some specific examples are                                                               
listed  regarding lighted  tobacco, cigars,  cigarettes, matches,                                                               
firecrackers,  and  other burning  materials.    He offered  that                                                               
"other  burning materials"  is a  fairly  generic and  open-ended                                                               
definition, but a lot of it is common sense.                                                                                    
2:59:21 PM                                                                                                                    
REPRESENTATIVE EASTMAN  referred to  Mr. Maisch's  testimony that                                                               
this is "already authority the  department has," but in reviewing                                                               
Sec. 7,  it read that Sec.  7 is added  as a new subsection.   He                                                               
noted that  if the  authority is already  elsewhere, why  is this                                                               
new subsection necessary.                                                                                                       
MR. MAISCH answered that he would  have to look at the subsection                                                               
ordering  because he  was unsure  whether the  subsection changed                                                               
due  to previous  changes  to  the section.    This section  does                                                               
currently exist,  and subsection (b)  is added to make  clear the                                                               
general types  of activities that  can cause a  situation wherein                                                               
the FPOs  need a  person to  report a  fire when  it occurs.   He                                                               
described that it is actually  about reporting and public safety.                                                               
In  the  event a  person  starts  a  fire  on their  property  by                                                               
accident  and does  not report  the fire  promptly, there  can be                                                               
some  pretty  serious  consequences  for  their  neighbors  which                                                               
includes,   loss   of   homes   and   business   infra-structure.                                                               
Unfortunately, that has  taken place several times  in Alaska and                                                               
it is all about reporting a fire when it starts.                                                                                
3:00:45 PM                                                                                                                    
REPRESENTATIVE EASTMAN noted that  the language being proposed is                                                               
"increases  fire  danger,"  and  asked   what  that  means.    He                                                               
acknowledged that Mr.  Maisch had offered examples  of sparks and                                                               
so forth, where  a person might actually be starting  a fire, but                                                               
does  "increases fire  danger" mean  that a  fire is  started, or                                                               
exactly what does it mean.                                                                                                      
MR. MAISCH responded  that "increasing fire danger"  is simply an                                                               
action or  activity during the wrong  time, such as during  a red                                                               
flag  warning.     He  used the  example  that  a timber  harvest                                                               
operation will  shut down because the  danger is so high  that it                                                               
is likely  their activities could  spark a fire,  "increased fire                                                               
danger."    He  explained  that   it  is  the  type  of  activity                                                               
undertaken.   Another example is agricultural  burning, wherein a                                                               
person wants to burn when it is  safe to burn, and not when there                                                               
is an increased danger from burning.                                                                                            
3:01:48 PM                                                                                                                    
REPRESENTATIVE  EASTMAN asked  whether Mr.  Maisch would  want to                                                               
put language in there as a  sideboard or some type of limitation.                                                               
He  related  that  the  language   now,  "increases  fire  danger                                                               
whenever" even  if it is -30  degrees and someone is  moving snow                                                               
around on their  property, or during red flag warnings,  or it is                                                               
fire season.                                                                                                                    
MR. MAISCH answered that this  provision is during the legal fire                                                               
season, April 1st through August 31st.                                                                                          
3:02:43 PM                                                                                                                    
REPRESENTATIVE EASTMAN  asked where that information  is located,                                                               
and how is it known (indisc.) fire season.                                                                                      
MR.  MAISCH answered  that it  actually mentions  that without  a                                                               
permit  as prescribed  by  the regulation,  and  the permits  are                                                               
required under AS 41.15.060.                                                                                                    
REPRESENTATIVE  EASTMAN commented  that that  did not  answer his                                                               
CHAIR CLAMAN advised that Mr. Maisch  had answered to the best of                                                               
his ability.                                                                                                                    
3:03:18 PM                                                                                                                    
REPRESENTATIVE KOPP  referred to  the language  currently written                                                               
in  the bill  draft, and  asked whether  this is  consistent with                                                               
what the  commissioner can  do now through  their authority.   He                                                               
referred to AS 41.15.050, which read as follows:                                                                                
     The period  from April  1 to  August 31,  inclusive, of                                                                    
     each   year  is   designated  the   fire  season.   The                                                                    
     commissioner  may  designate   other  periods  as  fire                                                                    
     season.  The commissioner  may  proclaim an  additional                                                                    
     period  for  all  or  any portion  of  the  state  when                                                                    
     weather  or other  conditions  require  action for  the                                                                    
     protection  of  forested  land.  The  commissioner  may                                                                    
     also, during  the fire season, prohibit,  or allow only                                                                    
     by  permit, the  setting of  fires, smoking,  entry, or                                                                    
     other use  on the  land, when, in  the judgment  of the                                                                    
     commissioner, the activities  would unduly increase the                                                                    
     fire danger.                                                                                                               
REPRESENTATIVE  KOPP  referred to  AS  41.15.060,  which read  as                                                               
     The  commissioner shall,  by regulation,  prescribe the                                                                    
     conditions of  and the manner  for obtaining  a permit.                                                                    
     Failure to obtain the required  permit, or violation of                                                                    
     a condition of the permit is a misdemeanor.                                                                                
REPRESENTATIVE KOPP  explained that he was  trying to distinguish                                                               
how the language in the bill, and the two statutes differ.                                                                      
MR. MAISCH explained  that AS 41.15.050 sets the  fire season and                                                               
the other conditions  he previously referenced.   It differs from                                                               
the proposed addition,  in that that this  subsection makes clear                                                               
that a  person needs to report  a fire, for whatever  cause, when                                                               
it occurs.   Subsection  (b) makes  clear that  that is  the case                                                               
under CSHB 355, and that a permit  is required at the same time a                                                               
person undertakes any of those activities.                                                                                      
3:05:22 PM                                                                                                                    
REPRESENTATIVE EASTMAN  commented that  Mr. Maisch is  asking the                                                               
committee to take a  "whole lot on faith" as to  how this will be                                                               
interpreted  and applied  by  the  state.   He  related that  the                                                               
language before the  committee does not put  the limitations that                                                               
"any  of us  would find  reasonable," as  there is  a requirement                                                               
that in order for  a person to use their land  in any manner that                                                               
might  increase fire  danger,  they  must obtain  a  permit.   He                                                               
described  it  as  unrealistic  and  excessive  on  the  part  of                                                               
government to require  that of Alaskans, and it  does not support                                                               
the purposes intended.                                                                                                          
REPRESENTATIVE KREISS-TOMKINS maintained his objection.                                                                         
3:06:17 PM                                                                                                                    
A roll call  vote was taken.  Representatives  Eastman, Kopp, and                                                               
LeDoux  voted   in  favor  of   the  adoption  of   Amendment  4.                                                               
Representatives Stutes, Kreiss-Tomkins,  and Claman voted against                                                               
it.  Therefore, Amendment 4 failed to  be adopted by a vote of 3-                                                               
3:06:56 PM                                                                                                                    
The committee took an at-ease from 3:06 p.m. to 3:08 p.m.                                                                       
3:08:15 PM                                                                                                                    
CHAIR   CLAMAN   noted   that  certain   members   had   previous                                                               
[HB 355 was held over.]                                                                                                         

Document Name Date/Time Subjects
HB355 ver J 3.14.18.PDF HJUD 3/14/2018 1:00:00 PM
HJUD 3/19/2018 1:00:00 PM
HJUD 3/26/2018 1:00:00 PM
HJUD 4/2/2018 1:00:00 PM
HJUD 4/2/2018 7:00:00 PM
HB 355
HB355 Sponsor Statement 3.14.18.pdf HJUD 3/14/2018 1:00:00 PM
HJUD 3/26/2018 1:00:00 PM
HJUD 4/2/2018 1:00:00 PM
HJUD 4/2/2018 7:00:00 PM
HB 355
HB355 Amendments #1-10 3.19.18.pdf HJUD 3/19/2018 1:00:00 PM
HJUD 3/26/2018 1:00:00 PM
HJUD 4/2/2018 1:00:00 PM
HJUD 4/2/2018 7:00:00 PM
HB 355
HB355 Amendments #1-10 HJUD Votes 4.2.18.pdf HJUD 4/2/2018 1:00:00 PM
HB 355