Legislature(2017 - 2018)BELTZ 105 (TSBldg)
04/12/2017 01:30 PM Senate JUDICIARY
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| Audio | Topic |
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| Start | |
| SB58 | |
| Confirmation Hearings | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| + | TELECONFERENCED | ||
| += | SB 58 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
April 12, 2017
1:31 p.m.
MEMBERS PRESENT
Senator John Coghill, Chair
Senator Mia Costello
Senator Pete Kelly
Senator Bill Wielechowski
Senator Mike Dunleavy
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
SENATE BILL NO. 58
"An Act relating to the Department of Law public advocacy
function to participate in matters that come before the Federal
Energy Regulatory Commission."
- MOVED SB 58 OUT OF COMMITTEE
CONFIRMATION HEARING
Attorney General of the State of Alaska
Jahna Lindemuth
CONFIRMATION ADVANCED
PREVIOUS COMMITTEE ACTION
BILL: SB 58
SHORT TITLE: DEPT OF LAW: ADVOCACY BEFORE FERC
SPONSOR(s): RULES BY REQUEST OF THE GOVERNOR
02/13/17 (S) READ THE FIRST TIME - REFERRALS
02/13/17 (S) RES, JUD, FIN
03/20/17 (S) RES AT 3:30 PM BUTROVICH 205
03/20/17 (S) Heard & Held
03/20/17 (S) MINUTE(RES)
03/22/17 (S) RES AT 3:30 PM BUTROVICH 205
03/22/17 (S) Moved SB 58 Out of Committee
03/22/17 (S) MINUTE(RES)
03/23/17 (S) RES RPT 2DP 4NR 1AM
03/23/17 (S) DP: GIESSEL, COGHILL
03/23/17 (S) NR: HUGHES, VON IMHOF, STEDMAN, MEYER
03/23/17 (S) AM: WIELECHOWSKI
04/10/17 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
04/10/17 (S) Heard & Held
04/10/17 (S) MINUTE(JUD)
04/12/17 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
WITNESS REGISTER
CLYDE "ED" SNIFFEN, Assistant Attorney General
Regulatory Affairs and Public Advocacy (RAPA)
Department of Law (DOL)
Anchorage, Alaska
POSITION STATEMENT: Answered questions related to SB 58 on
behalf of the administration.
JAHNA LINDEMUTH, Designee
Alaska Attorney General
Department of Law (DOL)
Anchorage, Alaska
POSITION STATEMENT: Testified as Alaska Attorney General
Designee.
NIESJE STEINKRUGER, representing herself
Fairbanks, Alaska
POSITION STATEMENT: Testified in support of the confirmation of
Jahna Lindemuth to the position of Alaska Attorney General.
ALAN LEMASTER, representing himself
Copper River Salmon Charters
Gakona, Alaska
POSITION STATEMENT: Testified during the confirmation hearing of
Jahna Lindemuth to the position of Alaska Attorney General.
MARY BISHOP, representing herself
Fairbanks, Alaska
POSITION STATEMENT: Testified in opposition to the confirmation
of Jahna Lindemuth as Alaska Attorney General.
SCOTT OGAN, representing himself
Palmer, Alaska
POSITION STATEMENT: Testified in opposition to the confirmation
of Jahna Lindemuth as Alaska Attorney General.
MICHAEL GERAGHTY, representing himself
Anchorage, Alaska
POSITION STATEMENT: Testified in support of the confirmation of
Jahna Lindemuth as Alaska Attorney General.
PATTY BARBER, representing herself
Palmer, Alaska
POSITION STATEMENT: Stated opposition to the confirmation of
Jahna Lindemuth as Alaska Attorney General.
KENNY BARBER, representing himself
Palmer, Alaska
POSITION STATEMENT: Stated that he does not support the
confirmation of Jahna Lindemuth as Alaska Attorney General
CHUCK DERRICK, representing himself
Fairbanks, Alaska
POSITION STATEMENT: Testified in opposition to the confirmation
of Jahna Lindemuth as Alaska Attorney General.
CRAIG COMPEAU, representing himself
Fairbanks, Alaska
POSITION STATEMENT: During the confirmation hearing for Attorney
General Lindemuth, he asked why she does not believe the R.S.
2477 case against Ahtna is worth defending.
DOUG VINCENT-LANG, representing himself
Anchorage, Alaska
POSITION STATEMENT: During the confirmation hearing for Attorney
General Lindemuth, he asked the committee to get her on the
record committing to reach out to all potentially affected users
on all R.S. 2477 cases going forward.
GARY STEVENS, representing himself
Chugiak, Alaska
POSITION STATEMENT: Stated that he opposes the confirmation of
Attorney General Lindemuth.
RICK ALLEN, Director
Office of Public Advocacy
Anchorage, Alaska
POSITION STATEMENT: Stated support for the confirmation of
Attorney General Lindemuth.
CAREY MILLS, representing himself
POSITION STATEMENT: During the confirmation hearing for Jahna
Lindemuth as Alaska Attorney General, testified that the court
issued a decision recently in his longstanding R.S. 2477 case in
which the state chose not to intervene.
CHRISTINE WILLIAMS, representing herself
Seattle, Washington
POSITION STATEMENT: Testified in strong support of the
confirmation of Jahna Lindemuth as Alaska Attorney General.
MIKE COONS, representing himself
Palmer, Alaska
POSITION STATEMENT: Stated that he strongly opposes Jahna
Lindemuth for Alaska Attorney General.
MIKE TINKER
Alaska Wildlife Conservation Association (AWCA)
Fairbanks, Alaska
POSITION STATEMENT: During the confirmation hearing for Attorney
General Lindemuth, testified that the public does not understand
the decision to settle and fears losing ground on access issues
to resources along the Klutina Lake Road.
KAREN GORDON, representing herself
Fairbanks, Alaska
POSITION STATEMENT: Testified in opposition to the confirmation
of Jahna Lindemuth as Alaska Attorney General.
LARRY SMITH, representing himself
Homer, Alaska
POSITION STATEMENT: Testified in support of the confirmation of
Jahna Lindemuth as Alaska Attorney General.
ROD ARNO, Executive Director
Alaska Outdoor Council
Juneau, Alaska
POSITION STATEMENT: Testified in opposition to the confirmation
of Jahna Lindemuth as Alaska Attorney General.
LAWRENCE ARMOUR, Mayor of Klawock;
Tribal Administrator for Klawock Cooperative Association
Klawock, Alaska
POSITION STATEMENT: Testified in support of the confirmation of
Jahna Lindemuth as Alaska Attorney General.
AL BARRETTE, representing himself
Fairbanks, Alaska
POSITION STATEMENT: Testified in opposition to the confirmation
of Jahna Lindemuth as Alaska Attorney General.
GREGORY RAZO, representing himself
Anchorage, Alaska
POSITION STATEMENT: Testified in support of the confirmation of
Jahna Lindemuth as Alaska Attorney General.
NICOLE BORRROMEO, Executive Vice President and General Counsel
Alaska Federation of Natives
Anchorage, Alaska
POSITION STATEMENT: Testified in support of the confirmation of
Jahna Lindemuth as Alaska Attorney General.
RICHARD BISHOP, representing himself
Fairbanks, Alaska
POSITION STATEMENT: Testified in opposition to the confirmation
of Jahna Lindemuth as Alaska Attorney General.
SUE ZAJAC, representing herself
Eagle River, Alaska
POSITION STATEMENT: During the confirmation hearing of Jahna
Lindemuth as Alaska Attorney General, cautioned against making
any arbitrary decisions about access along the Klutina Lake Road
before getting to know the area.
ACTION NARRATIVE
1:31:58 PM
CHAIR JOHN COGHILL called the Senate Judiciary Standing
Committee meeting to order at 1:31 p.m. Present at the call to
order were Senators Dunleavy, Costello, Wielechowski, and Chair
Coghill. Senator Kelly arrived during introductions.
SB 58-DEPT OF LAW: ADVOCACY BEFORE FERC
1:33:44 PM
CHAIR COGHILL announced the consideration of SB 58 and noted the
proposed amendment.
CLYDE "ED" SNIFFEN, Assistant Attorney General, Regulatory
Affairs and Public Advocacy (RAPA), Department of Law (DOL),
Anchorage, Alaska, said he presented SB 58 on Monday and he
didn't have anything to add.
1:34:11 PM
SENATOR WIELECHOWSKI moved Amendment 1, labeled 30-GS1875\A.1.
CHAIR COGHILL objected for an explanation.
AMENDMENT 1
OFFERED IN THE SENATE BY SENATOR WIELECHOWSKI
TO: SB 58
Page 1, line 2, following "Commission":
Insert "; and relating to the regulatory cost
charge"
Page 1, following line 3:
Insert a new bill section to read:
"* Section 1. AS 42.08.380(a) is amended to read:
(a) Each year, a person operating an
in-state natural gas pipeline under this chapter
shall pay to the commission a regulatory cost
charge if the pipeline for which the charge is
assessed is subject to this chapter and the
commission has taken action on the pipeline or
certificate under this chapter during the prior
fiscal year. The amount of the regulatory cost
charge may not exceed the sum of the following
percentages of gross revenue derived from
operations in the state:
(1) 0.7 percent to fund the operations
of the commission; and
(2) 0.23 [0.17] percent to fund
operations of the public advocacy function under
AS 42.04.070(c) and AS 44.23.020(e) in the
Department of Law."
Page 1, line 4:
Delete "Section 1"
Insert "Sec. 2"
SENATOR WIELECHOWSKI explained that the amendment increases to
.23 percent the regulatory cost charge (RCC) funding for the
Department of Law RAPA Section. That is the amount the
department indicated it would need to fully fund the RAPA budget
without relying on the general fund.
CHAIR COGHILL asked Mr. Sniffen if he had seen the amendment.
MR. SNIFFEN answered no, but that is the rough number Department
of Law has presented. It would result in another $700,000 in the
regulatory cost charge that the Department of Law would be able
to look to for funding.
SENATOR WIELECHOWSKI asked him to confirm that this would result
in a savings to the general fund.
MR. SNIFFEN said that is correct, but the amendment should
probably be in AS 42.06, the pipeline RCC statute, rather than
AS 42.08.
1:37:08 PM
CHAIR COGHILL asked what Title 42 addresses.
1:37:25 PM
SENATOR WIELECHOWSKI said he received the amendment from
legislative legal late last night and this is where the drafter
said the amendment should be placed.
1:37:35 PM
CHAIR COGHILL maintained his objection to Amendment 1.
1:38:14 PM
SENATOR WIELECHOWSKI said he would withdraw Amendment 1 and give
everyone an opportunity to think it over.
SENATOR WIELECHOWSKI withdrew Amendment 1.
1:38:26 PM
SENATOR COSTELLO moved to report SB 58, version A, from
committee with individual recommendations and attached fiscal
note(s).
CHAIR COGHILL announced that without objection SB 58 is reported
from the Senate Judiciary Standing Committee.
1:39:00 PM
At ease
^Confirmation Hearings
CONFIRMATION HEARING
1:40:46 PM
CHAIR COGHILL reconvened the meeting and announced the next
order of business would be to continue the confirmation hearing
for the Governor's appointee to the position of Alaska Attorney
General. He summarized that the primary discussion has been the
issue of [the R.S. 2477 right-of-way access from Copper Center
to Klutina Lake]. He thanked Attorney General Designee Lindemuth
for providing his office with extensive information on the topic
and meeting with him on three separate occasions.
He said the purpose today is to give Attorney General Designee
Lindemuth an opportunity to talk about the discussions over the
past several weeks, take public testimony, and allow her to
respond to the testimony.
1:42:12 PM
JAHNA LINDEMUTH, Alaska Attorney General Designee, Department of
Law (DOL), said she would go over her background and talk about
the case before there is public testimony. She advised that she
is a lifelong Alaskan, other than leaving for undergraduate and
law school. She takes her citizenship, responsibilities as an
Alaskan, and duties as attorney general very seriously. "I am
honored to serve as Alaska's Attorney General."
She noted that at the last hearing she talked about the many
hats the attorney general wears depending on the particular
issue. Depending on the circumstance, the governor can be the
client, or an independent board or commission can be the client.
When there is a lawsuit involved, as in the Klutina case, there
is a statute that gives the attorney general the sole authority
to run that case and settle that case if he/she deems it
appropriate. "Again, I'm not going to pursue a case or recommend
settlement in a case unless I think it's in the best interest of
all Alaskans. That's the primary client that I serve - the whole
state of Alaska."
She directed attention to the Alaska Department of Law List of
Federal Issues and Conflicts that she distributed earlier. It
summarizes the status of the federal issues the state is dealing
with. "So we're pressing full steam ahead on all of the
different cases we have against the federal government." She
noted that many of the cases have updates since the recent
change from the Obama Administration to the Trump
Administration.
1:44:55 PM
ATTORNEY GENERAL LINDEMUTH clarified that the Klutina case is
against the private party Ahtna, not the federal government.
This case involves access rights on 24 miles of road from Copper
Center to Klutina Lake. The state has been in right-of-way
litigation with Ahtna for over eight years. With the trial
pending, the parties again looked at whether some interests
could align making settlement possible. Speaking as someone who
has 20 years of commercial litigation experience, she said this
is a normal part of any case that is moving forward. Being able
to evaluate cases and decide what is in the best interest of the
state is expertise she brings to this position.
Over the last eight years there have been two previous attempts
to settle with Ahtna. At that time the parties were too far
apart; Ahtna was not willing to give on the critical issue of a
100 foot right-of-way under R.S. 2477. "That is the basic right
that we insisted be a part of any settlement." This is the
difference between now and the failed settlement attempts in
past years. While there is no settlement at this point, DOL
insisted on including key terms in the settlement before they
released the trial date. "When and if we get to a place where I
believe that we are getting what we want out of the settlement,
and that we're ensuring access for future Alaskans and that's in
the best interest of all Alaska, that's a settlement that I'll
be recommending that we move forward on and sign." She would
confer with the governor and other three commissioners involved
to ensure that they agree with her judgement. "But at the end of
the day it's my call on whether we move forward with that
settlement."
ATTORNEY GENERAL LINDEMUTH explained that before the settlement
document is signed, it will be put out for at least 30 days of
public comment and testimony. The comments from the public and
the legislature will be evaluated, and a determination will be
made on whether additional negotiations need to occur and
whether the state should move forward. "So we won't have a
signed deal until we have completely evaluated the input we have
received from the public."
1:49:29 PM
She explained that the two issues at play in the case are the
existence of an easement and the use of the easement. The state
first has to prove - based on historical use before 1976 - that
an R.S. 2477 actually exists. This fact and time-intensive
exercise poses some risk, but the Department of Law believes
this case is a winner and is asserting a 100-foot right-of-way
in any settlement. The second outstanding issue is what use can
be made of that R.S. 2477. It is not to the state's advantage
that Judge Guidi ruled several years ago that access is limited
to driving from point A to point B along the right-of-way but no
stopping, fishing, or camping, which the state has and continues
to assert should be included.
She underscored that the state has already lost that issue in
this case. Even if the R.S. 2477 is proved in trial, the state
would still need to appeal Judge Guidi's order to the Alaska
Supreme Court. What is important to recognize, she said, is that
Ahtna is a private party and private rights are involved so
there is real risk of losing that order in this case. She said
she would like to see the court make a strong, precedence-
setting case about state's rights sometime in the future, but
here the intent is to avoid a precedent-setting event.
ATTORNEY GENERAL LINDEMUTH highlighted that Governor Walker
issued a press release to clarify what key terms the state is
insisting be included in the settlement. This is a 100-foot
state-controlled R.S. 2477. It is not a federally controlled
17(b) easement. She expressed confidence that once Alaskans
review the settlement documents their fears will be allayed and
they will agree that the settlement is in the best interest of
Alaska.
1:53:55 PM
SENATOR KELLY agreed with the chair that the Attorney General
and her office has been very responsive since the first hearing.
He said it is frustrating, but he understands that it wouldn't
be wise or appropriate to ask probing questions about this case
because it is active.
1:55:11 PM
CHAIR COGHILL agreed with Senator Kelly and predicted that the
public testimony would sound cautionary.
1:55:52 PM
SENATOR WIELECHOWSKI summarized that the dispute centers on what
can be done along the R.S. 2477 right-of-way.
ATTORNEY GENERAL LINDEMUTH clarified that there are two
disputes. One is whether the R.S. 2477 even exists and the
second is what can be done along the right-of-way.
SENATOR WIELECHOWSKI observed that the state argued that this
area was historically used for boat launching, camping, and day-
use sites, whereas Ahtna asserted that access is limited to
simple ingress and egress along the route.
ATTORNEY GENERAL LINDEMUTH agreed; the state argued that the
historical use was part of the R.S. 2477, but Ahtna argued that
as a legal matter under R.S. 2477 it is ingress/egress.
CHAIR COGHILL added that what makes a strong case for the state
is that historical use is embedded in the R.S. 2477.
SENATOR WIELECHOWSKI summarized that R.S. 2477 sets the
easements as of 1976. Judge [Guidi] made a finding that R.S.
2477 only grants the right to pass over the land; it does not
and cannot convey the right to develop the land for recreational
and commercial purposes.
ATTORNEY GENERAL LINDEMUTH said the state absolutely disagrees
with that finding.
SENATOR WIELECHOWSKI pointed out that the state is stuck with
that judge's order; if the case went to the Alaska Supreme Court
the state could get a bad decision that would have statewide
impact.
ATTORNEY GENERAL LINDEMUTH agreed; if the Alaska Supreme Court
ruled against the state that would impact this R.S. 2477 and
others. She added, "If we do reach that settlement we're
actually securing those very access rights that we are insisting
on here." She said her goal is to make sure that the current
users experience very little disruption.
CHAIR COGHILL observed that Ahtna wants to be respected as a
property owner; an R.S. 2477 does that but the question is how.
2:00:21 PM
SENATOR WIELECHOWSKI summarized that Ahtna is asking for a
simple 60-foot-wide, 24-mile-long [17(b)] easement from point A
to point B, whereas the state is arguing that the easement
should be 100 feet wide and provide opportunities for
recreational day use.
ATTORNEY GENERAL LINDEMUTH agreed with the summary.
SENATOR WIELECHOWSKI asked her to convey what Governor Walker
publicly stated must be included in a settlement.
ATTORNEY GENERAL LINDEMUTH responded that the most important
tenet is a 100-foot right-of-way maintained by the state. There
will be boat launches, fishing opportunities, and camping along
the right-of-way. The distinction is that Ahtna will be able to
charge a reasonable fee for camping on Ahtna land. Certain
campers are leaving trash on their land, and the state is trying
to balance the rights of both parties.
SENATOR WIELECHOWSKI asked her perspective of the facts in this
case.
ATTORNEY GENERAL LINDEMUTH said the state has very good facts on
the historical existence of the R.S. 2477. The main risk in the
case is if Judge Guidi's order is upheld on appeal. That would
be a problem for all the R.S. 2477s in the state.
2:03:13 PM
SENATOR WIELECHOWSKI asked if the appeals court would hear the
case de novo or if Judge Guidi's interpretation would be given
deference.
CHAIR COGHILL asked if settling this case would set precedence.
ATTORNEY GENERAL LINDEMUTH clarified: 1) that the settlement
will not create precedence for any other case, and 2) that the
state intends to pursue all its R.S. 2477 rights statewide.
"This is not a new change in policy or how the state is handling
R.S. 2477s." Addressing Senator Wielechowski's question, she
said Judge Guidi's order raises a legal issue that would be
resolved de novo; but that lower court order and the legal
analysis would be very important if the state were to lose the
case and appeal it to the Alaska Supreme Court. A future R.S.
2477 case would be a better case to take up on appeal because
there would be a different superior court judge who would make
his/her own legal analysis of the case; they would not follow
Judge Guidi.
SENATOR KELLY asked why the Klutina case would not be precedent
setting.
ATTORNEY GENERAL LINDEMUTH explained that reaching a settlement
means that the parties have evaluated the risks in the case and
agreed to resolve their dispute in a particular way. The parties
are not conceding their rights; what the state is doing here
does not mean it would do the same thing for anybody else.
2:05:10 PM
SENATOR COSTELLO asked her to talk about the significance of
this being an R.S. 2477 across private property and if the state
would have taken a different approach if it were across federal
land.
ATTORNEY GENERAL LINDEMUTH said the court approaches the case
very differently when it is a state versus federal issue. When
there is private property involved, the court is more likely to
weigh in favor of the property owner versus the state. The state
has an R.S. 2477 case pending in the Chicken area against the
federal government, which the state hopes will result in good
court orders and create good precedent.
SENATOR WIELECHOWSKI asked if her final decision would be
unilateral or based on the opinions of the Governor and three
commissioners.
2:07:25 PM
ATTORNEY GENERAL LINDEMUTH said that in this particular case she
will only recommend settlement if she believes it is in the best
interest of the state. "When I recommend settlement, I'll then
talk it through with the other three commissioners - Department
of Transportation, Department of Natural Resources, Fish and
Game - and the Governor. And I want to make sure we're all on
the same page and that we all agree that it's in the best
interest of Alaskans."
2:08:57 PM
CHAIR COGHILL opened public testimony.
2:09:05 PM
NIESJE STEINKRUGER, representing herself, Fairbanks, Alaska,
reviewed her professional career as an attorney and current
position on the superior court bench. She said she met Attorney
General Lindemuth in her professional capacity on two occasions
and was struck by her professionalism and integrity. She comes
from a civil law background, but has paid attention to the
criminal division and learned the issues related to [Senate Bill
91]. "This is not the usual AG in Alaska. Alaska is fortunate to
have a competent lawyer with supervising litigation experience
running the Department of Law."
2:14:32 PM
ALAN LEMASTER, representing himself, Copper River Salmon
Charters, Gakona, Alaska, said he has been an outfitter who has
operated on the Klutina off-and-on for over 35 years. He spoke
of the importance of maintaining access to the Klutina River for
boating and fishing as well as camping along the right-of-way.
He explained that he launches his rafts into the Klutina River
at no cost where the river encroaches on the right-of-way and he
pays Ahtna's fee whenever he uses their land. He stated support
for Ahtna's right to charge a reasonable fee for the use of
their land and the 100 foot right-of-way under R.S. 2477.
2:17:52 PM
MARY BISHOP, representing herself, Fairbanks, Alaska, stated
that she is not confident that Attorney General Lindemuth
supports the state's commitment that all people are entitled to
equal rights and opportunities. She cited three actions that she
views as contrary to the Alaska Constitution: 1) she
participated in developing the Memorandum of Agreement between
the Interior Department and an Ahtna Intertribal Commission; 2)
she supports settlement of the R.S. 2477 Klutina matter; and 3)
she dropped the state's case opposing tribes placing lands in
trust.
2:21:18 PM
SCOTT OGAN, representing himself, Palmer, Alaska, testified in
opposition to the confirmation of Jahna Lindemuth as Alaska
Attorney General. He reviewed his legislative career and work
with the Department of Natural Resources including the years he
managed the various disciplines that supported the Klutina
litigation. He opined that the Klutina case has the best
historical use of any R.S. 2477 case in the state, and that
settling is not in the best interest of the state. He described
Judge Guidi's ruling as unfortunate and posited that Attorney
General Lindemuth should be very aggressive in appealing it.
2:25:12 PM
MICHAEL GERAGHTY, representing himself, Anchorage, Alaska,
reviewed his 39 year legal career in Alaska including his two-
year service as attorney general during the Parnell
Administration. He described Attorney General Lindemuth as a
skillful attorney and wholeheartedly endorsed her appointment.
"The state is fortunate to have an attorney of her caliber in
that position." Regarding the controversy over the Klutina
settlement, he said, "Any attorney general worth his/her salt
will always explore opportunities to resolve cases at the
appropriate time based upon the calculus of weighing the risks
involved and whether there is a compromise available that can
accommodate the critical needs of the people of Alaska." The
little he knows about the Klutina case leads him to believe it
is a good settlement that achieves the fundamental goal of
access for Alaskans. The larger point, he said, is that it would
be a tragic mistake to make a single settlement the basis for
challenging Jahna Lindemuth's confirmation as attorney general.
2:31:01 PM
PATTY BARBER, representing herself, Palmer, Alaska, stated
opposition to the confirmation of Jahna Lindemuth as Alaska
Attorney General. She mentioned unequal representation and
asked, "If this case against Ahtna has been going on for over
eight years, shouldn't someone have found out that the road is
an R.S. 2477 by now?"
2:31:48 PM
KENNY BARBER, representing himself, Palmer, Alaska, stated that
he does not support the confirmation of Jahna Lindemuth as
Alaska Attorney General because she doesn't appear to believe in
the Alaska Constitution. He maintained that the state is losing
a lot of land and rights because of the Klutina litigation.
2:32:49 PM
CHUCK DERRICK, representing himself, Fairbanks, Alaska, stated
that Attorney General Lindemuth has ignored the rights of
Alaskans by agreeing to settle with Ahtna and removing R.S. 2477
designation in favor of a 100-foot easement where Ahtna controls
access and activities that were guaranteed under R.S. 2477. She
has placed the wishes of one special interest above the rights
of all Alaskans, he asserted. He expressed concern that the
settlement could affect dipnetters who use another state
easement between O'Brien and Haley Creek to access the Copper
River.
2:34:49 PM
CRAIG COMPEAU, representing himself, Fairbanks, Alaska, asked
Attorney General Lindemuth why she wants to pursue an R.S. 2477
case against the federal government like the one in the Chicken
area to set precedent, but doesn't believe the R.S. 2477 case
against Ahtna is worth defending after spending eight years in
litigation and close to $1 million of taxpayer money.
2:36:14 PM
DOUG VINCENT-LANG, representing himself, Anchorage, Alaska,
stated that the role of the Alaska Attorney General is to
represent the interests of all Alaskans. Attorney General
Lindemuth has the responsibility to reach out to all potentially
affected Alaskans on issues of importance, but she never asked
potential users for advice, concerns or possible remedies in the
Klutina case before entering into private settlement talks. He
asked the committee to get Attorney General Lindemuth on the
record committing to reach out to all potentially affected users
on all cases going forward. He said he is encouraged that she
has begun to reach out to individuals, but would like in on
record what the bar is for walking away from the settlement
talks.
2:39:14 PM
GARY STEVENS, representing himself, Chugiak, Alaska, stated that
he opposes the confirmation of Attorney General Lindemuth and
agrees with the testimony of Mr. Bishop and Mr. Ogan.
2:40:12 PM
RICK ALLEN, Director, Office of Public Advocacy, Anchorage,
Alaska, stated support for the confirmation of Attorney General
Lindemuth. He knows her in a professional capacity and considers
her a friend. He has worked with many lawyers during his 20-year
legal career and she is one of the smartest and most hard
working lawyers he has ever had the pleasure of working with.
She is also a skilled manager. She is deeply committed to
serving the state and Alaskans are lucky to have an attorney
general of her caliber.
2:41:31 PM
CAREY MILLS, representing himself, stated that he is a litigant
in the 40-mile Station Eagle Trail R.S. 2477 case that the state
chose not to intervene in. He related that the district court
recently ruled that the Alaska statutes that were approved on
August 3, 1988 recognized the 40-Mile Station Eagle Trail. The
court said that as long as the state recognizes the trail, the
court would accept it until there is proof otherwise. He read an
excerpt from the order. Customary usage is a key element. He
said he doesn't know enough about Attorney General Lindemuth to
make a determination, but he does understand the need to resolve
litigation. "If she is resolving the litigation by settlement
that protects those rights that the R.S. 2477 ensures us, I
would applaud her."
2:44:51 PM
CHRISTINE WILLIAMS, representing herself, Seattle, Washington,
stated that she was born and raised in Alaska and knows Attorney
General Lindemuth in both a professional and personal capacity.
She is a strong advocate for her clients and she knows how to
make informed decisions. She is held in high regard by other
attorneys and is highly skilled. Alaskans should be honored to
have her as attorney general, she said.
2:47:58 PM
MIKE COONS, representing himself, Palmer, Alaska, stated that he
strongly opposes Jahna Lindemuth for Attorney General. He
disagreed with her closed door negotiations on R.S. 2477 access
litigation; questioned her ability to successfully litigate the
R.S. 2477 matter concerning access to Chicken trails through
federal lands; noted that she is a graduate of the University of
California, Berkeley that has "a long history of extreme liberal
thought and action"; questioned whether she and the Governor
would side with "eco-wackos" in his remaining term since they
did not join other states in filing lawsuits against the Obama
administration on carbon tax; and stated support for a
constitutional amendment that supports an elected attorney
general.
2:51:41 PM
MIKE TINKER, Alaska Wildlife Conservation Association (AWCA),
Fairbanks, Alaska, advised that his subdivision in the Fairbanks
North Star Borough accesses over private property via an R.S.
2477. He said AWCA has a 40-year interest in access issues and
believes that settlement of the Ahtna case is controversial
because the public does not understand the decision and fears
losing ground on access issues to resources along the Klutina
Lake Road. He highlighted the importance of Attorney General
Lindemuth's statement that the settlement is only on the Klutina
Lake Road. Keep that in mind, he said, because the testimony
opposing the settlement may be overwhelming.
2:56:07 PM
KAREN GORDON, representing herself, Fairbanks, Alaska,
maintained that instead of asserting state sovereignty on the
established R.S. 2477 right-of-way on the Klutina State Road,
Attorney General Lindemuth appears to have resorted to
negotiations behind closed doors and is relinquishing the
state's rights to appease Ahtna Corporation. "Negotiating away a
state asset we already own is unconscionable. I fear the state
would soon be giving away more R.S. 2477 trails across the state
if we cavalierly not take this one to the mat." She emphasized
that the AG's office has not been open about this case and it
hasn't helped in the eyes of Alaskans. Some look at it as a
betrayal of Alaskans and the Alaska Constitution that she
negotiated a memorandum of agreement (MOA) between the Ahtna
Intertribal Resource Commission and the U.S. Department of
Interior. She concluded, "I ask that she not be confirmed as
Alaska's Attorney General."
2:59:05 PM
LARRY SMITH, representing himself, Homer, Alaska, stated that he
has been working on resource issues in Alaska since statehood
and he sympathizes with Alaskan's concerns about access to
resources, homes, and livelihoods. He expects Attorney General
Lindemuth to help with these things. She is a woman of
independent judgement who has firm recommendations from many
respected legal voices and that makes a large impression. "I
would ask you to send her confirmation right along."
3:00:28 PM
ROD ARNO, Executive Director, Alaska Outdoor Council, Juneau,
Alaska, said AOC's hope was that 20 years from now Alaskans
would still be talking about Attorney General Lindemuth's pit-
bull defense of state sovereignty and the common use clause of
the Alaska Constitution. However, those hopes have been dashed
by events since she took office. He said the AOC supports the
sovereign right of the state to manage and allocate public
resources, but state sovereignty is being eroded bit by bit. He
pointed out that the last AG quit when the third floor agenda
differed from the policies the legislature set, but AOC cannot
say that Attorney General Lindemuth would follow the same path.
He cautioned that if you see the erosion of state sovereignty
and the Klutina Lake Road as a pattern, then do not confirm
Jahna Lindemuth as Alaska's Attorney General.
3:03:33 PM
LAWRENCE ARMOUR, Mayor of Klawock and Tribal Administrator for
Klawock Cooperative Association, Klawock, Alaska, opined that
every once in a while, an attorney comes along who is
universally recognized as the best in jurisprudence and is
extremely qualified as an administrator. Attorney General
Lindemuth personifies those attributes. She is a strong and
ethical litigator, an inspiring leader, and is able to manage a
large staff. She will serve the state with distinction.
3:05:49 PM
AL BARRETTE, representing himself, Fairbanks, Alaska, said he is
testifying in opposition to the confirmation of Jahna Lindemuth
as Alaska Attorney General. He said the settlement has no
precedence, but it will ensure that the next R.S. 2477 right-of-
way to be compromised will be the Chitna dipnetting trail. He
stressed that the trail into the Klutina area is well-developed
and documented and the state should move forward through the
court case. "I think it's one of the better court cases I've
seen for R.S. 2477 rights-of-way."
3:07:25 PM
GREGORY RAZO, representing himself, Anchorage, Alaska, said he
has practiced law in Alaska for 33 years and knows Attorney
General Lindemuth to be a highly qualified attorney. Speaking
from his perspective as a member of the Alaska Criminal Justice
Commission, he said that during her tenure on the commission she
has been a strong advocate for public safety and victims'
rights, and has always asserted the Department of Law's concerns
over the commission's review of Alaska criminal law and
policies. "She's done a good job and, in my opinion, she should
be confirmed as Attorney General."
3:08:25 PM
NICOLE BORRROMEO, Executive Vice President and General Counsel,
Alaska Federation of Natives, Anchorage, Alaska, stated that AFN
has submitted a letter in support of the confirmation of Jahna
Lindemuth as Alaska Attorney General, so her comments would be
brief. She said she wanted to echo the testimony of former
Attorney General Geraghty in full. "She is a very strong
candidate for the position and fully capable of leading Alaska
in the right direction."
3:09:15 PM
RICHARD BISHOP, representing himself, Fairbanks, Alaska, stated
that he has been involved with Alaska's natural resource issues
for 40 years as a biologist and a public interest advocate and
he is mad that Attorney General Lindemuth seeks consensus on
issues at the expense of Alaskans. He said he is fed up with:
fumbling federal overreach; insidious internal special interest
imprecations [sic]; and the erosion of Alaskans' equal
protection under the state constitution. He concluded, "Alaska
needs a champion - not an architect of cloying consensus
regarding such issues as: fee to trust tribal lands; the
Interior Department/Ahtna MOA; and R.S. 2477 issues."
3:12:08 PM
SUE ZAJAC, representing herself, Eagle River, Alaska, stated
that she has enjoyed the Klutina Lake Road in all four seasons
since she moved to Alaska 47 years ago. It is the only four-
season road along the Richardson Highway. Speaking as a 33-year
resident of the Copper River Valley, she cautioned against
making any arbitrary decisions before getting to know the area.
"Please go out there. If you were limited to a 100-foot right-
of-way, you wouldn't like it," she said.
CHAIR COGHILL asked the individuals who had not testified to
submit their written comments. He asked Attorney General
Lindemuth to address some of the concerns that were articulated.
3:15:55 PM
ATTORNEY GENERAL LINDEMUTH clarified that the state is not a
part of the Ahtna MOU with the U.S. Department of Interior that
several testifiers mentioned. Rather, she and Bruce Dale with
the Alaska Department of Fish and Game attended a meeting to ask
those parties to make certain changes to their agreement to make
it clear that the state's management of state fish and game
resources statewide was not impinged. "We filed a whole lawsuit
over this so I'm not going to let some agreement impact those
rights."
Regarding the Klutina Lake Road case, she agreed with Mr. Ogan
and other callers that there is strong historical use of that
road. That type of evidence is what the state would use to prove
a 100-foot state-maintained R.S. 2477. Establishing that in the
settlement eliminates any risk of the judge thinking otherwise.
"We are actually securing those rights into the future if we are
able to reach that in a settlement."
Regarding the number of R.S. 2477s on federal land versus
private land, she said a 2014 memo in the material she provided
today references that the state has 20,000 linear miles of R.S.
2477 right-of-way. DNR estimated at the time that 50 percent was
private land, which implies that 50 percent was federal land.
She said she is happy to hear that there is a recent decision in
Mr. Mills' R.S. 2477 case that the prior administration declined
to intervene in. "We will look for that and look for what order
was entered in his case to see if it's relevant here."
ATTORNEY GENERAL LINDEMUTH said the public is rightly concerned
about the Klutina River Road case and potential settlement. It
is an important state right. However, there has been confusion
and misunderstanding about the final terms because the final
terms agreement has not been put out for public comment.
The comment period will be meaningful and we will
consider the comments we receive from the public. I
think some of the comments we got today were very
helpful and I expect that the next comment period will
allow us to better negotiate and have a better final
agreement if we can reach one. My goal here is to act
in the best interest of all Alaskans in pursuing this
settlement. And my goal is to preserve access, not to
give it away.
She asked the people who disagree with her in this case, to
judge her entire record. This is one case amongst hundreds she
has been involved with as Attorney General. She concluded
saying:
The last eight months has been a true pleasure and
I've really enjoyed my time as Alaska's Attorney
General. I think it's an honor and a privilege to
serve this state and I look forward to continuing my
service if confirmed. I ask that I be confirmed as
Attorney General.
CHAIR COGHILL thanked Attorney General Lindemuth and emphasized
the interest in preserving the right of access in Alaska. He
asked anyone who didn't have an opportunity to testify to submit
their comments in writing and he would post it to BASIS.
3:21:49 PM
Off the record
3:22:10 PM
CHAIR COGHILL reconvened meeting and stated that in accordance
with AS 39.05.080, the Senate Judiciary Standing Committee
reviewed the following and recommends the confirmations be
forwarded to a joint session for consideration: Alaska Attorney
General - Jahna Lindemuth and Commissioner of the Department of
Public Safety - Walt Monegan.
He reminded members that signing the reports regarding
appointments to boards and commissions in no way reflects
individual members' approval or disapproval of the appointees,
and that the nominations are merely forwarded to the full
legislature for confirmation or rejection.
3:22:48 PM
There being no further business to come before the committee,
Chair Coghill adjourned the Senate Judiciary Standing Committee
meeting at 3:22 p.m.