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Senate questions primacy on injunction reform house bill

Posted: April 12, 2012 - 12:08am

After working its way through the Alaska House of Representatives and the first of its two referred Senate committees, Senate Bill 168 has bumped up against a big question in the Senate Judiciary Committee with few days left in the legislative session.

Bill sponsor Rep. Eric Feige, R-Chickaloon, introduced the bill to the committee Wednesday. The public was invited to testify.

If passed, the bill would advise judges considering whether to require a bond and where to set the amount of the bond when issuing an injunction, to “include an amount for the payment of wages and benefits for employees and payments to contractors and subcontractors that may be lost if the industrial operation is wrongfully enjoined," according to the bill text.

The concern is based around whether the state of Alaska could run afoul of the federal government if the state statute deviates too far from federal law. Committee Chairman Hollis French, D-Anchorage, said he wanted to find out if altering state statue to give guidance to judges when deciding whether and how much to ask in bond when a plaintiff in case requests an injunction would cause the state to lose primacy.

According to the Oxford Journals, primacy allows states to enforce federal policies. The federal government can retain control over policies while passing enforcement to the states. States can set more stringent policies than the federal government and retain control over enforcement. Less strict policy could result in the federal government retaking enforcement control.

The state of Utah overturned a similar statute due to the primacy issue, French said. He said he asked Legislative Legal department if HB 168 could result in similar concerns.

“The short answer is yes,” French said.

Feige said it is not the intent of the bill to affect primacy.

“We talked to the departments and they would be prepared to provide intent language with the bill” to make this clear.

French said he was also concerned that the bill represented a solution without a problem.

“Are we doing something wrong that needs (to be) fixed?” French asked.

He asked Feige for an example of an inappropriate injunction that was not secured with a bond.

Feige gave an example of when the shutdown of the Pogo Mine, but it was later determined to be an inaccurate example.

The public testified at Wednesday’s hearing.

Those who testified in favor of the bill said groups or individuals who request injunctions on development projects should take some of the risk involved.

The term “skin in the game,” was used as least twice.

Opponents testified the bill would take away the ability of Alaskans to challenge the actions of large and powerful corporations.

Feige said his bill would still allow for ample public comment during Alaska’s permitting process. It does not tie judges hands by setting a security bond amount, but gives them guidance when deciding whether to bond and how much.

Judges hold an awesome power in the right grant injunctions, Mike Jungreis, spokesman for the Resource Development Council said.

“That power must be handled with discretion,” Jungreis said. House Bill 168 would help guide judges in their decisions about how much “damage can be inflicted if an injunction is improperly granted,” he said. The Council supports HB 168.

The Alaska State Chamber of Commerce adopted litigation reform as one of its top three priorities in 2012, Rachel Petro, president of the Alaska State Chamber of Commerce said.

“Such delays put Alaskans out of work,” Petro said.

Alaska resident Andrew Keller said the bill would “effectively prohibit whistle blowing.”

Bristol Bay fisherman Terry Sevy testified in opposition to the bill. He said it would “favor large corporations and strip individuals and smaller groups of their right to take action against such corporations, making it economically impossible for them to do so.”

• Contact reporter Russell Stigall at 523-2276 or at russell.stigall@juneauempire.com.

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