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Senate OKs bill making it tougher to challenge industrial projects

Richard Mauer

JUNEAU -- The Senate passed a bill Wednesday to raise the bar for Alaskans who want to stop industrial or construction projects in court, directing judges to consider lost employee wages and contractor payments when setting a bond in an injunction case.

The Senate vote was 14-6 after Democrats tried to change the bill with nine amendments, including one that would exempt the proposed Pebble project from the law. All but one of the amendments failed, including the one on Pebble, which picked up only a single Republican vote, that of Sen. Gary Stevens, R-Kodiak.

Sen. Hollis French, D-Anchorage, said without the exemption, someone who wanted to challenge the Pebble project and stop it with an injunction, if only temporarily, might have to put up a billion dollar bond under the bill, House Bill 47.

Democrats said the bill creates improper barriers to Alaskans who want access to the courts to prevent a wrong. Republicans said it will make plaintiffs think twice before challenging a development that helps the economy and provides jobs.

The bill was introduced in the House by Rep. Eric Feige, R-Chickaloon, at the start of the 28th Legislature in 2013. It languished in the House until February, when it suddenly picked up steam. It passed the House 26-12 on March 12 and was referred to a single Senate committee. Because of the one amendment, accepted without objection on the Senate floor, the bill will have to go back to the House for concurrence before going to Gov. Sean Parnell for his signature.

In a recent interview, Feige said his inspiration for the bill was an environmental lawsuit years ago that temporarily shut down Shell's offshore exploration in the Arctic Ocean, which cost him a job as a pilot. That lawsuit was brought in federal court, which is unaffected by the bill, and Feige acknowledged that most injunctions against industrial projects are issued by federal judges.

At a House hearing in February, a representative of the state court system, Nancy Meade, said that in the last five years, only two or three such cases were brought in state court.

Feige has other personal connections to industrial developments. His wife, Corri Feige, was the local representative for Pioneer Resources in its controversial exploration for coal-bed methane near residential areas in the Mat-Su Borough in the early 2000s. He and his wife also owned a company, the Castle Mountain Group, which he described in financial disclosures as engaging in "project management and permit consultation." And now, Feige reported in his official disclosure last month, his wife is general manager for Linc Energy Alaska, the company seeking to develop an oil field in Umiat on the North Slope that would involve construction of a road and pipeline opposed by some Native groups.

Feige said he had no conflicts of interest and wasn't taking away anyone's rights.

"We're not restricting anybody's access to the court," Feige said. "They can still go and conduct a lawsuit. We're talking about industrial operations which have already gone through an extensive permitting process."

The bill doesn't require a judge to order a bond be posted, he noted.

"Nothing really changes except we're giving a big hint to the judge to say, you really ought to consider the employees that are being affected here," Feige said.

On the floor of the Senate, Democrats said the bill was a solution in search of a problem that didn't exist.

"I heard conflicting things with this bill," said Sen. Bill Wielechowski, D-Anchorage, who serves on the Judiciary Committee. "I heard this is needed to stop frivolous lawsuits, but I never heard of a single project that got shut down."

French said the law already required judges to conclude before issuing an injunction that an industrial activity would cause irreparable harm and that the party who was suing would likely prevail. The bill just made it harder to a person to bring a case, he said.

And Sen. Donny Olson, D-Golovin, said the people in his district, who don't own expensive homes or vehicles that they could use a collateral, could find themselves blocked from court -- or seeking help from an environmental group with much deeper pockets.

Sen. Lesil McGuire, R-Anchorage, who spoke on behalf of the bill, said the state had a vigorous permitting process, and that was where people should voice their objections to a project.

But Wielechowski proposed amending the bill so that a bond wasn't required if the state failed to notify the public about a permit. Olson strongly endorsed that amendment.

"It's not wrong to let the people have notice," Olson said.

That amendment failed 13-7, with one Republican, Peter Micciche of Soldotna, joining Wielechowski, French, Olson and three other Democrats in favor.

Reach Richard Mauer at rmauer@adn.com or (907) 500-7388.

 


By RICHARD MAUER
rmauer@adn.com