Compass: House bill on injunctions aims to muzzle Alaskans

The 2014 legislative session includes a new iteration of legislation that would deprive Alaskans of the right to intervene in the democratic process. That bill is House Bill 47 (Industrial Operation Injunctions).

Ostensibly, the goal of this legislation is to mandate that Alaska courts require litigants to post security bonds for costs industry might suffer if wrongfully enjoined or restrained from its activities. Additionally, this bill requires that courts consider the amount of lost wages and benefits in setting the bond.

Courts just don't hand out temporary restraining orders (TROs) and injunctions because they're in the mood and so inclined. Alaska law declares, generally, that a TRO or preliminary injunction can only issue on a showing that the applicant will suffer "irreparable harm" and that there is a "likelihood of success on the merits."

Courts ferret out frivolous applications for TROs and injunctions, as do the Rules of Civil Procedure. Existing statutes also allow for civil liability for "malicious" injunction petitioners, which can include comprehensive damages. Indeed, the key witness in support of HB47 testified that judges are extremely reluctant to grant TROs. And, persons subject to TROs and preliminary injunctions have an immediate right of review to a higher court. Additionally, they have the right to appeal to the very judge who issued the TRO or injunction within 48 hours of its issuance, and receive priority consideration.

I referred to the ostensible goal of the legislation. While the bill is accurately summarized above, supporters of the bill also suggested that its object was to suppress lawsuits. As evidence, during debate on the bill, a proponent indicated that the actual goal was "...keeping someone from [] asking for injunctive relief..." As I explained, frivolous lawsuits are already suppressed by existing law--as they should be. Instead, HB 47 will suppress legitimate, meritorious and rightful claims from individuals, tribes, and the public, that an industrial operation violates existing legal rights, negatively impacting the greater public interest. Its chilling effect could be profound and its supporters indicated this was their wish.

The bill defines an "industrial operation" to include a "construction, energy, or timber activity and oil, gas, and mineral exploration, development, and production." The definition is a broad one, and the industrial activities could be close to home. Consider, for example, the 2003-2004 Mat-Su debate over coal bed methane. Injunctions in that dispute would clearly fall under the rubric of this bill.

Noteworthy, while in committee, HB47's supporters could only identify two instances where this legislation might have application. In their first example, it was conceded that an injunction issued over the new Port MacKenzie road was filed in federal court, so this bill would have had no effect on that litigation. In the second example, the litigation was not brought by conservationists, but by the Alaska Commercial Fishermen's Memorial Board in Juneau. This group was concerned that Juneau city harbor improvements could impact its memorial--the location where it blesses the fleet every spring before the commencement of the fishing season. This illustrates how the far-reaching consequences of this legislation might impact much more than the feared NGOs its supporters wish to quiet (as does the coal bed methane example).

Added to this "solution in search of a problem", the testimony both in committee and on the House floor was that there has been no historic abuse of injunctions in the state court system. A committee witness testified that there had been two or three injunctions in the prior six or seven years that relate to industrial operations. And, importantly, there was no evidence that it was improper to issue those two or three injunctions.

The price of admission to court should not be high where government has improperly allowed bad permits or where a corporation is violating the law or the terms of its permits. The Alaska Supreme Court properly called the right to court access an "important" right. But, under HB 47, if you consider yourself a "regular" Alaskan, and wish to challenge an illegal industrial operation, you had better be Warren Buffet.

Rep. Andy Josephson, D-Anchorage, has served in the state House since 2013.