Legislature(2021 - 2022)BUTROVICH 205
02/24/2021 03:30 PM Senate RESOURCES
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| Audio | Topic |
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| Start | |
| Overview: Department of Law-federal Issues and Conflicts | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
SENATE RESOURCES STANDING COMMITTEE
February 24, 2021
3:31 p.m.
MEMBERS PRESENT
Senator Joshua Revak, Chair
Senator Peter Micciche, Vice Chair
Senator Gary Stevens
Senator Natasha von Imhof
Senator Jesse Kiehl
Senator Scott Kawasaki
MEMBERS ABSENT
Senator Click Bishop
COMMITTEE CALENDAR
OVERVIEW: DEPARTMENT OF LAW-FEDERAL ISSUES AND CONFLICTS
- HEARD
PREVIOUS COMMITTEE ACTION
No previous action to record
WITNESS REGISTER
CORI MILLS, Deputy Attorney General
Civil Division
Department of Law
Juneau, Alaska
POSITION STATEMENT: Provided an overview of federal litigation
issues and conflicts.
JESSIE ALLOWAY, Assistant Attorney General
Opinions, Appeals, and Ethics Section
Civil Division
Department of Law
Anchorage, Alaska
POSITION STATEMENT: Participated in the overview of federal
litigation issues and conflicts.
MARY HUNTER GRAMLING, Assistant Attorney General
Oil and Gas Section
Civil Division
Department of Law
Juneau, Alaska
POSITION STATEMENT: Participated in the overview of federal
litigation issues and conflicts.
RON OPSAHL, Assistant Attorney General
Natural Resources Section
Civil Division
Department of Law
Anchorage, Alaska
POSITION STATEMENT: Participated in the overview of federal
litigation issues and conflicts.
ACTION NARRATIVE
3:31:42 PM
CHAIR JOSHUA REVAK called the Senate Resources Standing
Committee meeting to order at 3:31 p.m. Present at the call to
order were Senators Kiehl, Kawasaki, Stevens, von Imhof, and
Chair Revak. Senator Micciche arrived during the course of the
meeting.
^OVERVIEW: Department of Law-Federal Issues and Conflicts
OVERVIEW: Department of Law-Federal Issues and Conflicts
3:32:29 PM
CHAIR REVAK announced the committee would hear an overview from
the Department of Law (DOL) regarding a list of federal issues
and conflicts pertaining to navigable waterways, access to land
and lands, Clean Air Act, water, mining, and oil and gas.
3:33:51 PM
CORI MILLS, Deputy Attorney General, Civil Division, Department
of Law, Juneau, Alaska, said she will highlight some of the good
work DOL is doing on statehood defense and revenue projection.
She noted the DOL list provided to committee members represents
35-federal-issue cases that are currently active. The cases
include state alignment with the federal government or not in
alignment with the federal government. Attorneys within DOL are
handling all the noted casesthe cases do not involve outside
counsel.
MS. MILLS said to put the 35 cases into context, the Natural
Resources Section within DOL worked on approximately 700-active-
legal matters during FY2020. Although the 35 cases are
important, they are a small fraction of what the section does
within the department.
MS. MILLS stated DOL refers to the 35 cases as "statehood
defense" because they are helping to defend what the [federal
government] promised Alaska at statehoodthe right to manage its
resources based on the sustained yield principle to become self-
sufficient, rights embodied in Article XIII of the Alaska
Constitution.
3:36:07 PM
MS. MILLS explained that defending [the 35 cases] has 2 main
purposes. The first purpose is to ensure the state can
responsibly and sustainably develop its resources that results
in the money the legislature appropriates for government
includes money to the general fund, permanent fund, and the
constitutional budget reserve. The second purpose is the ability
for the state to manage its resources for the benefit of all
Alaskansreferenced in Article XIII of the Alaska Constitution.
She said DOL anticipates based on the recent policies and
executive orders that have come out of the federal government
that the workload in the [statehood defense] area is going to
increase. DOL anticipates having more cases that are averse to
Alaska in determining how to best represent the state's
interests. DOL will need to advise on the legal ramifications of
the [federal government's] actions, resolution options short of
litigationthe department's goalbut ultimately to instigate
lawsuits if necessary.
MS. MILLS detailed there have been several executive orders, the
one talked about the most is the [30x30 executive order]
(30x30). The initiative calls for federal agencies to
essentially lockup 30 percent of the land in the United States
and 30 percent of the United States' oceans by 2030. For the
initiative to get to its 30-percent-land number, the federal
government will need to lockup more than 440 million acres on
top of what is already in conservation statusroughly twice the
size of Texas.
She pointed out 30x30 applies to the entire nation. However, DOL
does not know what the initiative potentially means to Alaska.
DOL said the state could potentially see the federal agencies
using their land management plans to create more restrictions
and essentially turn land into conservation use onlysomething
seen in the past that could happen again. The state could see a
reversal of things like the Roadless Rule exemptionthe state
has finally achieved getting an exemption and is currently in
litigation. The state has been in alignment with the federal
government on the Roadless Rule, but the federal government
could reverse that decision.
MS. MILLS said the state has also seen in the past that the
federal government does not want to work with Alaska on
submerged land, navigable waterways, [Revised Statute] (RS)
2477s, as well as the state's land selections; instead, the
state must litigate at ever inch to get those lands that belong
to the state. Other avenuesif the federal government were open
to itwould be getting a Recordable Disclaimer of Interest (RDI)
from the federal government, but that depends on how willing
they are to work with the state.
She noted other areas of increased activity [by the federal
government] includes placing more species on the ESA list,
establishing huge areas of critical habitat, and tightening down
on the stringent mitigation measures that possibly is hard for
anyone to meetbased on 50-to-100-year projections versus
current or near-future circumstances. Alaska has already seen a
halting of oil and gas leasing on federal lands which also
impacts the state and its revenues. The case list could get
longer should DOL come before the committee next year.
3:40:48 PM
MS. MILLS explained she wanted to build on why the [federal
issue] cases are important because there sometimes are feelings
that the state seems to lose more than it wins. The federal-
issue cases can be hard cases, but they are important and
building successes and picking your cases is important. The
committee will see a lot of successes as DOL talks about the
federal-issue cases.
She said she will start by giving the example of the Sturgeon
casewhich everyone in the state is familiar with. Mr. Sturgeon
had a hard fight with the federal government on his case. The
U.S. Supreme Court's decision was a huge win for Mr. Sturgeon
and others, allowing them to continue to usein Mr. Sturgeon's
case, his hovercraft on the Nation Riverand for the Alaskans to
use that river.
MS. MILLS noted the Sturgeon case was also a big win for Alaska
and its citizens and that is why the state was also so involved
in that case and worked so closely with Mr. Sturgeon. The
Sturgeon case clarified who has management authority over
navigable waterways within federally owned Conservation System
Units (CSUs). Generally, CSUs are units of the National Park
System, the Refuge System, or [Wild and Scenic River Corridors]
created by the [Alaska National Interest Lands Conservation Act]
(ANILCA). Many CSUs encompass state-owned land, including state-
owned submerged lands that the state received as part of its
statehood settlementthis goes back to what the federal
government promised Alaska at statehood.
3:42:34 PM
MS. MILLS said the Sturgeon decision is important because it
verified that Alaska is the exception and not the ruleAlaska
now has U.S. Supreme Court precedent recognition for future
casesand the decision made clear that the federal government
cannot manage state-owned navigable waterways within the ANILCA-
created National Parks or Refuge Systems. The navigable
waterways are separate and belong to the state for management.
She explained the Sturgeon decision goes way beyond the Nation
River. The U.S. Supreme Court decision applies to any navigable
water owned by the state that is within a CSU. The decision
allows the state to take a more active role managing the use of
its navigable waterways. The state can build on that success by
reaching out to the federal governmentwhich the state has done
to try and reach agreements to determine which waterways are
navigable. If the state fails in determining navigable waterways
via federal agreements, then the state might have to turn to
litigationan area where the state has had success as well.
MS. MILLS said taking the time on the Sturgeon case as well as
some of the other caseswhich committee members will hear about
can ultimately build on the Sturgeon case success and build a
path forward with reduced difficulty for establishing [state's
rights for its navigable waterways.]
She detailed costs associated with the Sturgeon case, noting Mr.
Sturgeon had $1 million in attorney's fees. The stateusing the
state's billing ratespent about $720,000 in attorney's fees and
using an outside firm would have cost $1.1 million to $1.4
million. U.S. Supreme Court cases can be significant
investments, but ultimately really pay dividends in the end.
3:44:51 PM
SENATOR STEVENS referenced her discussion of 30x30 and that the
initiative locks up 30 percent of the land and 30 percent of the
oceans. He noted not hearing her mention 30x30 litigation going
onassuming she means navigable waters when she talks about
oceans. He said his concern has to do with fisheries and he
wonders if the 440 million acres she mentioned is just land or
land and oceans.
MS. MILLS replied that is an important point. The state saw the
ban of offshore drilling, for example, and how that affects the
fisheries is an interesting question that DOL will need to
watch.
She said she did not focus on oceans because the federal
government has already locked up a lot of ocean, so to reach the
30 percent they do not have to lock up as much more ocean as
they did lands. Nevertheless, it
is an important area because Alaska has the most coastline in
the United States. Not only does Alaska have the most federal
land, but also the most coastline. DOL will watch that as well
but to get to the goal was not quite as difficult as to get to
the 440 million acres.
SENATOR STEVENS asked if the federal government could take ocean
territory within the three-mile limit.
MS. MILLS said she did not believe the federal government would
take state waters, but it is talking about working with
communities and working within states to lock things up through
other means. However, Alaska is not going to give up its state
waters.
3:47:41 PM
SENATOR STEVENS stated he appreciated her comments, and [30x30]
is an important issue to know what the threats are.
SENATOR VON IMHOF noted her opening remarks were very poignant
where she said states generally need to be able to pay for
themselves. When Alaska statehood occurred in 1959, one of the
big hurdles was Alaska's ability to responsibly develop its
resources to be an ongoing concern without federal subsidy
dependencyhistorically, this was a huge argument by Congress to
make sure Alaska could pay for itself. The Swanson River [oil
field] on the Kenai Peninsula was the first indicator that there
was oil and there was resource extraction.
She asked her what the state's recourse is if the federal
government does not allow states to develop their resources to
finance their operations and if 30x30 goes against the Alaska
Constitution when Congress voted for Alaska to be a state in
1959.
MS. MILLS replied the state has great dicta in the Sturgeon case
and will utilize that to the best of its ability to show the "no
more" clauses. Alaska did receive promises from the federal
government and the state needs them.
She said the federal government actually working with Alaska
would be great, but if not, at least the state has good case law
from the U.S. Supreme Court saying Alaska is different. The
federal government should treat Alaska differently and those are
things DOL will cite in every brief.
3:50:36 PM
JESSIE ALLOWAY, Assistant Attorney General, Opinions, Appeals,
and Ethics Section, Civil Division, Department of Law,
Anchorage, Alaska, stated she would build on Ms. Mills'
discussion of the Sturgeon case and start by talking about
navigability and R.S. 2477.
She explained, in general, the state received all submerged
lands under tidally influenced or navigable-in-fact waterways at
the time of statehood. Again, it is part of Alaska's statehood
entitlement. The [navigability] cases were important prior to
the Sturgeon case, but the Sturgeon case made them even more
important because the [decision] ties into the state's ability
to manage the [submerged lands] to the extent they exist within
CSUs designated by ANILCA.
MS. ALLOWAY detailed when the state has a dispute over the
ownership of submerged lands, the dispute typically comes in two
forms. One, the state could argue about whether the waterway was
navigable-in-fact at the time of statehoodthe gist of the
federal test is whether a boat can float to the extent using
that waterway as a highway of commerce. Two, was there a pre-
statehood conveyance or withdrawal that defeated the state's
interests.
She noted prior to statehood the federal government could have
taken action to withdraw the federal submerged lands for itself
or it could have conveyed that land away, but the federal
government had to take specific action to do that. Over the last
10 years or so, DOL had good success in challenging the federal
government's position on of those issues and further DOL
testimony will address building on the challenge successes going
forward.
3:52:25 PM
MS. ALLOWAY said regarding the navigability-in-fact dispute, the
state brought a lawsuit to quiet title to the submerged lands
under the Mosquito Fork of the Fortymile RiverDOL brought the
lawsuit when she first joined the department in 2012. DOL worked
with the Department of Resources (DNR), the department got the
litigation ready and was about two weeks away from trial when
the federal government decided to disclaim its interest.
She explained the problem in the [Mosquito Fork] litigation and
the problem the state has had all along in trying to deal with
the federal government on the issue is the department's feeling
that the federal government is bringing frivolous arguments to
try to defeat the state's interests by trying to relitigate
arguments that the U.S. Supreme Court or the U.S. Court of
Appeals for the Ninth Circuit (The Ninth Circuit) already
resolved in the state's favor.
MS. ALLOWAY detailed after the federal government disclaimed its
interest, the state brought a motion for attorney's feesarguing
the federal government had taken frivolous positions to route
that lawsuit and that they had acted in bad faith. The Ninth
Circuit agreed with the state and said:
The United States' position that recreational use in
not relevant, or the United States' position that you
had to have a wooden watercraft that carried two-
thousand pounds.
MS. ALLOWAY said those were frivolous arguments and the Ninth
Circuit awarded the state attorney's fee in the [Mosquito Fork]
litigation.
She mentioned litigation costs and reported that, using outside
rates, the state spent about $1 million to get the Mosquito Fork
case ready for trial. The Ninth Circuit Judge Sharon Gleason
awarded the state $600,000 in attorney's fees.
MS. ALLOWAY said that in the years after the Mosquito Fork case,
the state was able to get the federal government to change its
position on the Delta River, the Kisaralik River, and the West
Fork of the Dennison Fork. Except for the Kisaralik, those
rivers all go through Wild and Scenic River Corridors and they
are important for the argument that Ms. Mills talked about on
the Sturgeon case. She said she believes those were all
successes triggered by what DOL accomplished in the Mosquito
Fork litigation.
MS. ALLOWAY acknowledged that in recent years there is more
tension with the federal government on other issues. The state
asked the federal government to change its mind on the North
Fork of the Fortymile River and the Middle Fork of the Fortymile
River that go through [Bureau of Land Management] (BLM) managed
Wild and Scenic River Corridors. The federal government declined
and that is one of litigations that committee members will see
on the DOL list. DOL is in the early stages with expert reports
due and she anticipates a trial within the next year or so.
3:55:44 PM
MS. ALLOWAY said the second issue is pre-statehood withdrawal.
After the Mosquito Fork litigation ended, DOL filed litigation
on the Stikine River. The federal government recognized the
Stikine River as navigable, but their position was the creation
of the Tongass National Forest prior to statehood withdrew all
the submerged lands within the boundaries of the Tongass to the
federal government. The state disagreed and filed a lawsuit.
Again, the federal governmentbefore the court could resolve the
issuechanged its mind and disclaimed its interest in the
Stikine River.
She noted the statewanting to build off its success to get the
federal government to recognize the [Stikine River] decision
applies to all waters within the Tongassfiled a Recordable
Disclaimer of Interest (RDI) for the Taku River near Juneau. The
RDI program is a way for the state to get the federal government
to recognize the state's ownership without having to file
litigationthe process is administrative. The federal
governmentfollowing what it did in the Stikine casedid
disclaim its interest in the Taku River.
MS. ALLOWAY said DOL has made progress on the [submerged lands
and pre-statehood] cases and continues to do so. The department
hopesworking with DNR and strategically choosing the riversto
litigate and continue building the precedent to get the federal
government to change its position on other rivers throughout
Alaska.
She noted both in navigability and R.S. 2477 cases, DOL cannot
do its job without the help of DNR; these cases require the
assistance of DNR to float the rivers, engage in fieldwork, and
building technology that allows DOL to make a better
presentation to the court. DNR has done great work with drones
to get new videos and [geographic information system] (GIS)
work. DOL also seeks outside hydrology, geomorphology, and
history experts to create a teamwith DNRto pursue the
[navigability and R.S. 2477] cases.
3:58:31 PM
She explained that R.S. 2477 cases are important because that
was one of the ways that the public or the state could reserve
rights of way over federal public land prior to that statute
withdrawal. She noted she calls R.S. 2477 cases the "Chicken
Litigation" where the state is seeking quiet title to several
R.S. 2477s near Chicken, Alaska; these R.S. 2477s start in
Chicken and end up going through Wild and Scenic River Corridors
that are managed by BLM and provide access to hunting, state
submerged lands, and mining claims.
She said the R.S. 2477 litigation has been going on for a number
of years, but issues unrelated to the federal government have
hung up the litigation, and those issues are resolved. DOL is in
discovery, similar to the navigability case, and the department
anticipates going to trial in 2022.
4:00:13 PM
MARY HUNTER GRAMLING, Assistant Attorney General, Oil and Gas
Section, Civil Division, Department of Law, Juneau, Alaska, said
she would speak about Roadless Rule matters and the state's
involvement in the Izembek Road between King Cove and Cold Bay.
MS. HUNTER GRAMLING noted before she goes into the details of
the Roadless Rule cases, she referenced her colleague's previous
testimony on the two decisions in the Sturgeon case as being
important to the state's efforts in Roadless Rule litigation and
in the Izembek matter. The Sturgeon decisions have good dicta
that says Alaska is different, and there is a lot of background
and analysis of what the U.S. Supreme Court did in those
decisions about the purposes of ANILCA and that it really is
about the balance of national conservation interests, but also
the economic and socio-economic opportunities for Alaska and its
residents. The Sturgeon case arguments are important and
something the state is trying to build off of in Roadless Rule
litigation as well as the Izembek Road case.
She said a second general trend that DOL is seeing is that in
the land management plans, and to a certain extent the Izembek
Road, the federal government is trying to manage lands in ways
to get around ANILCA. There are arguments on the application of
the Roadless Rule and the treatment of certain areas as if they
are CSUs. When DOL sees those land management plans or
regulations, that is when the state does take a particular
interest in ANILCA's "no more" clause issues.
MS. HUNTER GRAMLING added that the third kind of general trend
the department is seeing in the [Roadless Rule and Izembek]
cases are that the state's alignment with the federal government
really does change by presidential administrations. However, DOL
does not see hardly any change via Alaska's executive branch.
For example, there have been Democratic and Republican
governors, but the department's position has been the same that
the Roadless Rule should not apply in Alaskaparticularly in the
Tongass. The state has also been very consistent in its position
that there really needs to be a road and reasonable access for
King Cove, especially for medical help in emergencies.
She said the fourth general trend in the noted cases is that the
statewhether with a plaintiff or defendingtypically aligns
with groups for intervention help or close coordination. For
example, in the Roadless Rule litigation the state works with
other aligned interveners that represent a number of
municipalities in Southeast, Southeast Alaska power companies,
chambers of commerce, and Alaska mining associations. In the
Izembek litigation, the state is frequently aligned with the
King Cove Corporation and the municipalities in that area.
4:04:20 PM
MS. HUNTER GRAMLING said her first case overview is the state's
challenge to the 2001 Roadless Rulea nationwide rule that
applies, until recently, to 15 million acres of National Forest
land in Alaska. The federal government recently exempted the
Tongass National Forest from the Roadless Rule, but the state
still has its Roadless Rule litigation in the [United States
Court of Appeals for the District of Columbia Circuit] (DC
Circuit Court) regarding the underlying 2001 Roadless Rule.
She detailed the state completed its briefing two years ago for
the 2001 Roadless Rule case. However, the state requested the
court to stay the casewhich the court grantedbecause the state
requested an exemption for the Tongass. Parties recently filed
their positions about what should happen in the future of the
case. The state's position is that the DC Circuit Court should
hear the case for a decision that the 2001 Roadless Rule is not
consistent with ANILCA, the Tongass Timber Reform Act, and the
Administrative Procedure Act in the National Environmental
Policy Act (NEPA). DOL is waiting to see how the court will rule
on either the state's motion to have the case go to argument or
the defendant's and environmental group interveners' motions to
dismiss the case.
4:06:06 PM
MS. HUNTER GRAMLING said the other Roadless Rule related case
that the state currently has is that in October 2020 the U.S.
Department of Agriculture (USDA) exempted the Tongass National
Forest from the 2001 Roadless Rule. The state requested the
rulemaking and granted cooperating agency status. The DOL, DNR,
and other state agencies worked to combine the state's comments
the department spent a lot of time in that rulemaking process.
She noted in December 2020, environmental, native, fish, and
tourism advocacy groups challenged the rule. That is a recent
challenge and the federal government's answer was imminently
due, but yesterday the federal government requested a stay for
the case. She noted today, the state filed a notice to intervene
and requested a hold on the stay until the state has an
opportunity to intervene. She added she just found out that
there is another large group that intends to also intervene in
support of the rule and that makes up some of the same people
that are supporting the state in the DC Circuit Court.
4:08:01 PM
SENATOR KIEHL recalled that the state was not successful at the
district court level in challenging the Roadless Rule, but won
the total exemption through the political route. He noted the
change in the federal administration and questioned the wisdom
of trying to turn around the first lawsuit.
MS. HUNTER GRAMLING replied the district court decision is a
case currently in the DC Circuit Court and that is the case
about the underlying rule. The state completed its briefing long
before the 2020 Tongass exemption rule. Even though the new
rulemaking does exempt the Tongass, the 2001 Roadless Rule
restrictions on roadbuilding and timber harvest still applies in
full force to 5.4 million acres of the Chugach National Forest
98 percent of the forest is under the Roadless Rule. The state
still has a continuing interest in the litigation and is another
case where the state would like a decision on Alaska's statutory
claims.
4:10:09 PM
CHAIR REVAK asked if they are two separate things.
MS. HUNTER GRAMLING answered yes. Currently the state is
involved in two cases and about to be involved in another case.
The first case in the DC Circuit Court is on the underlying 2001
Roadless Rule. The second casewhich the state will intervene
inis a recent challenge to the Roadless Rule exemption granted
to the Tongass National Forest.
SENATOR KIEHL commented that his general approach is to take
your wins and defend them, and cut your losses.
MS. HUNTER GRAMLING addressed the King Cove Road case and noted
the state is intervening in support of an agreement that the
King Cove Corporation has with the U.S. Department of Interior
(DOI) to grant them a land exchange so that they can have a
corridor across the Izembek National Wildlife Refuge to build a
permitted road with the required funding.
She noted the current case is the third round for the state. The
district court found DOI did not adequately explain the
agreement it entered intounder the [Administrative Procedure
Act] (APA)and that it violated ANILCA. This is a case where the
state's briefing in the Ninth Circuit focuses on the purposes of
ANILCA and how the district court decision did not acknowledge
the balances of interests in the overall purpose of ANILCA to
include opportunities for satisfaction and health of Alaska
residents.
MS. HUNTER GRAMLING detailed DOI's reply brief was due earlier
and they requested a 30-day extension. The reply briefs are due
on March 8, 2021 for the state, DOI, and the King Cove
Corporation. She said the Ninth Court looks to want to hear the
case for argument either in June or August 2021.
She noted she will skip over the Chugach Land Management Plan
and the Tongass Land Management Plan.
4:14:02 PM
SENATOR VON IMHOF commented that the military appears to have
the ability to supersede the Roadless Rule since there is a new
military road in the Stuckagain Heights and Basher Road area in
the Chugach Mountains outside of Anchorage.
CHAIR REVAK asked her to address Senator von Imhof's point.
MS. HUNTER GRAMLING replied she is not familiar with the road
Senator von Imhof referenced, but there are limited exceptions
to the Roadless Rule; that road may have fit into one of those
exceptions or there was some other issue. However, the state's
concerns, particularly with a lack of roads in the Chugach, has
also diminished the ability of the state to respond to fire
hazards and beetle issues in neighboring state forests.
4:16:02 PM
RON OPSAHL, Assistant Attorney General, Natural Resources
Section, Department of Law, Juneau, Alaska, said he will touch
more on the U.S. Bureau of Land Management's (BLM) resource
management planning about the Eastern Interior Resource
Management Plan (EIRMP).
He said a good example for other issues that he sees coming down
the road include Kobuk-Seward, Bering Sea-Western Interior, and
Central Yukon planning; these cases typically involve challenges
to environmental analysis conducted by BLM. The state serves as
a cooperating agency and provides input through that process,
but once it hits litigation it becomes important for the state
to intervene to defend in those cases where the state and the
federal government are aligned.
MR. OPSAHL said the NEPA case can be very difficult to defend.
Statistics will show resolution in more than 90 percent of NEPA
cases in the favor of the federal government. However, that is
not the case regarding major plans and issues that garners a lot
of public interest. The reason that these cases often fail is
not because the government had a flawed environmental analysis
or was hiding the ball, the reason is usually because the
"procedural deck" is really stacking in favor of a plan.
He explained the [plan] cases, he canas a plaintiffallege that
a NEPA analysis failed to analyze any given topic, but it does
not take long before the defense runs out of pages to respond to
everything that a plaintiff reports. That is when it becomes
vital for an intervener to step in the right case at the right
time. Intervention can make a significant difference in these
cases. Leaving the federal government alone to defend may result
in a remanded case with defensible plans. When the state is
involved, the outcome can be more favorable.
MR. OPSAHL said BLMas a matter of conveniencehas decided to
use its planning process to evaluate the slew of 1970s era
public land orders that it issued under the Alaska Native Claims
Settlement Act (ANCSA). Recently, the Kobuk-Seward plan
recommended revocation of a handful of [Public Land Orders]
(PLO) covering nine million acres. The effect is to allow the
state's selections under the Alaska Statehood Act to mature from
top filings into full selections.
MR. OPSAHL added the [Kobuk-Seward] example may not be following
with Bering Sea-Western Interior or Central Yukon [plans]. BLM
has not decided on whether it is going to revoke the outdated
PLOs. If BLM does not, the state may become averse to the
federal governmentas far as the PLO goesbut that does not mean
the state should not intervene to defend the rest of the plan if
the plan otherwise aligns with the state's interests.
4:21:19 PM
CHAIR REVAK addressed withdrawals for Kobuk-Seward and noted the
federal government recently did an emergency Federal Register
alterationvia executive orderto remove what BLM had already
decided to make available in terms of the withdrawal revocation,
the lands available for selection.
He said he has several concerns with the emergency federal
Register alteration to the Kobuk-Seward, one of which is that
Native Vietnam veterans have been waiting for over 60 years for
their allotments, and would have been available for selection in
the Kobuk-Seward agreement.
MR. OPSAHL explained the state's position is the revocation was
effective when signed on January 19, 2021. The PLOs were revoked
for those nine million acres and the lands became available.
What the second half of that land order requires that within 30
daysFebruary 18those lands would then fallback under standard
mining and leasing laws. The Federal Register noticed that last
week, which effects that second part. He said he does not read
it as affecting the first part at all but delays the
reimplementation of mining laws and leasing laws to the lands
where the withdrawals were revoked.
He detailed those lands do not fallback under the mining laws
and the leasing laws for 60 more days, but the state's position
is the revocation had effect immediately with no further action
required and it is not revokable. He said DNR is moving forward
with the standard selection process for the highest priority
lands to get conveyance to the state under its selections.
CHAIR REVAK commented that the only reason they would delay it
is to find a way to stop it.
4:24:41 PM
SENATOR MICCICHE joined the committee meeting.
MR. OPSAHL said DOL continues to monitor the PLO for Kobuk-
Seward and if BLM does pull some shenanigans, DOL is evaluating
that to see if there is any legal recourse that would be
available.
MR. OPSAHL said the next cases that he will discuss relate to
the Arctic National Wildlife Refuge (ANWR). The first two cases
are the boundary dispute and 1002 Lease Sale Litigation. In the
ANWR boundary dispute, the case involves an interpretation of
the establishment of ANWR and whether the western boundary was
intended to be the Canning River or Staines River; that created
20,000 acres between those 2 rivers of disputed land, with the
state wanting to assert its ownership on those acres and the BLM
denied that. The state appealed to the Interior Board of Land
Appeals (IBLA). In November 2020, IBLA upheld BLM's decision, so
the state is evaluating judicial review options to take the case
to federal court.
MR. OPSAHL explained the ANWR Boundary Dispute dovetails into
the [ANWR Section 1002 Lease Sale]. The Tax Cuts and Jobs Act of
2017 opened up the ANWR coastal plainSection 1002 areato oil
and gas leasing. To implement the proposed BLM lease sale, the
bureau identified available acreages and put the lease sale out
for comment. The state commented saying that Track 29the area
that contains the disputed strip of land between Canning and
Staines riversshould not be part of the lease sale. BLM denied
the state's request and included Track 29. The lease sale
occurred on January 6, 2021 and the [Alaska Industrial
Development and Export Authority] (AIDEA) won the lease that
includes the disputed ANWR acreage.
4:27:09 PM
CHAIR REVAK asked where the state is on the lease sale, noting
there are executive orders related to those lease sales.
MR. OPSAHL replied that is the next case he would talk about.
He detailed there are four related cases, all challenging BLM's
leasing program for the ANWR coastal plain. The cases include
tribal group plaintiffs, non-governmental organizations (NGOs),
and a coalition of states all alleging various violations of
federal environmental natural resources laws including NEPA,
ESA, ANILCA, and the Tax Cuts Act. The state intervened in all
four of those lawsuits to defend the leasing program.
MR. OPSAHL said the case is now stayed for 60 days to allow the
incoming administration to evaluate whether it wants to
continue. If the administration chooses not to, that is going to
raise a question of whether the state can continue without the
federal government. Arguing one way or the other would be
premature.
MR. OPSAHL said he would not be surprised if the new
administration tries to pullback the leasing programat least
temporarilyto either redo the environmental analysis, bolster
some of it, or to remove some of the lands that were nominated
and available for lease sale.
He said the last example of the state's recent intervention is
the Ambler Road litigation. The state has two more related
lawsuits challenging the approval of the Ambler Industrial
Access Roadincludes Tribal plaintiffs and NGOsunder the full
panoply of environmental laws. Even though access to the Ambler
District is guaranteed under ANILCA, the plaintiffs continue to
challenge access. The state is intervening to defend the access
road. The case has not been stayed, but a stay would not
surprise him. However, the state is waiting for a briefing on
that matter.
4:30:37 PM
SENATOR MICCICHE asked him what happens to the aligned cases,
such as the Izembek Road, when an administration changes where
the state and federal government are aligned.
MR. OPSAHL replied that situation often happens, and its
occurrence raises issues. Sometimes the state and federal
government are able to continue, sometimes the intervener is
able to continue in defense. A lot of times when the federal
government withdraws the challenged plan, there is nothing left
to defend, but a cross claim becomes important to hopefully
allow the parties to continue instead of being aligned with the
government. The state is challenging the federal government's
action to withdraw that plan, but there really is no good
precedent that says 100 percent of time that allows or disallows
a continuance. The decision is fact dependent and often the luck
of a judge draw.
SENATOR MICCICHE commented that another column is needed for the
likelihood of the case continuing with the Biden administration.
4:32:58 PM
MS. ALLOWAY said she will talk about a couple of Clean Water Act
cases where the state is currently aligned with the federal
government, but that very well may change going forward in the
future.
MS. ALLOWAY detailed the first case is the Trout Unlimited case
which is about the Pebble Project. In order to go forward with
the Pebble Project, the project would need a Section 404 permit
under the Clean Water Act and that involves two federal
agencies: U.S. Army Corps of Engineers (USACE) and the U.S.
Environmental Protection Agency (EPA).
She explained during the end of the Obama administration, EPA
did something quite unusual in that they used their authority to
issue a proposed decision under Section 404 to put a halt on the
permitting process without actually having received a permit
application to review and resulted in litigation that the state
and other groups joined.
MS. ALLOWAY detailed in 2020, the EPA revoked their [authority]
decision by actually getting a copy of that Pebble Project
permit, worked with USACE, and learned new information to allow
the process to proceed in the normal course. Trout Unlimited
challenged the EPA's ability to pullback on that proposed
determination, and the state intervened on the side of EPA. The
federal government prevailed in the lower court on some
procedural issues, and that is now on appeal to the Ninth
Circuit. The case has been briefed and the state is awaiting a
decision from the court.
4:35:06 PM
MS. ALLOWAY said the other cases that relate to the Clean Water
Act must deal with the waters of the United States rule that she
is sure all the committee members are aware with. To exercise
its regulatory authority under the Clean Water Act, the federal
government must decide if said water is of the United States,
which results in how to define the water of the United States.
She noted in 2015, the Obama administration issued a rule that
most states thought was quite broad and over extended the
government's authority under the Clean Water Act. That rule was
challenged and that is one of the litigations the committee
members see on the DOL chart.
MS. ALLOWAY explained the federal governmentvia the Trump
administrationalso pulled back on the [water of the United
States] regulation and issued a new water of the United States
regulation and environmental groups are challenging that
regulation. In that situation, the state is both aligned and not
aligned with the federal government and the state has intervened
in both of those casesas well as numerous statesto protect
their interests and their ability to participate in litigation
over how the government is going to define its external reaches
of regulatory authority under the Clean Water Act.
SENATOR VON IMHOF commented that the people that the state or
its entities sides with sometimes seems convoluted or backwards.
She said by siding with the EPA, sometimes your enemies are your
friends and vice versa.
4:37:18 PM
MS. ALLOWAY said she would address cases regarding the state's
ability to regulate hunting and fishing on federal land.
She detailed the state is dealing with some Obama era
regulations where the Obama administration promulgated various
rules towards the end of its administration that limited state
authorized hunting on federal lands. There is a National Park
Service regulation that limited state authorized hunting on
National Preserves. Also, there are two U.S. Fish and Wildlife
Service (FWS) regulations, one that applied statewide to all
refuges and a second rule that applied only to the Kenai Refuge.
MS. ALLOWAY noted that at the beginning of the Trump
administration, Congress used the Congressional Review Act which
gives Congress the abilities to easily review regulations that
are promulgated by federal agencies, and then decide whether
they agree with the policies set by that agency. Congress used
the Congressional Review Act to invalidate the FWS rule that
applied throughout Alaska. Congress said to all refuges, "We do
not like that policy determination, and we are going to
invalidate that rule."
She said last year the Trump administration pulled back on the
National Park Service rule and issued a new regulation which
resolves some the state's concerns regarding preserves and how
the federal government was limiting the state's ability to
manage hunting and fishing on the preserves. The state still has
litigation over that rule because it did not satisfy all the
state's concerns and that is in the district court. The briefing
is stayed pending allowance for the Biden administration to
decide which way it is going to go on the rule, will the
administration make additional changes as requested by the
state, and does the administration want to litigate the rule as
it stands. The briefing will probably take place early in 2021.
4:39:42 PM
MS. ALLOWAY stated the second litigation DOL has going is
regarding that Kenai specific rule. If committee members
remember, Congress said, "Hey, we don't like this regulation as
it applies to all the refuges throughout the state." However,
for some reason the Fish and Wildlife Service has said, "We are
going to still apply those same regulations but only to the
Kenai Refuge." The state is challenging that regulation as it
applies to the Kenai Refuge, and the district court ruled
against the state at the lower court proceedings and that is now
on appeal to the Ninth Circuit. Briefing has not yet begun and
that will probably take place in the spring or early summer with
oral arguments possibly in fall 2021.
MS. ALLOWAY said the next fish and game case deals with the
Federal Subsistence Board. In 2020, the Federal Subsistence
Board issued an order closing moose and caribou hunting to non-
federally qualified users, so state users in game management
units 13A and 13B. This was significant for the state because
these areas are quite popular for hunting because of their
proximity to the Richardson Highway.
She noted the game management unit closures are supposed to take
place for two years, through 2022. The state filed a lawsuit in
the district court arguing the Federal Subsistence Board
overreached its authority to manage this type of hunting and has
not supported its decision under ANILCA or the Administrative
Procedures Act, which basically says the government must
adequately support and say, "These are the reasons why we are
taking this action."
MS. ALLOWAY detailed the state received an unfavorable decision
on a motion for preliminary injunction; in other words, the
state said, "Hey federal court, this is really bad. Will you
step in right away before we get to major briefing on the
merits?" The federal court declined to step in right away, but
that case is still proceeding. The state has just received the
administrative record, so all the documents the federal
government looked at for regulation promulgation is going to be
reviewed. The briefing is going to take place in the next couple
of months. The state will get a final decision on whether that
regulation is within the Federal Subsistence Board's authority.
4:42:30 PM
MS. ALLOWAY said the last thing she wanted to talk about is the
Salmon Fishery Management Plan (FMP). She explained the
Magnuson-Stevens Act (MSA) requires federal councils to create
management plans for fisheries under their authority. Typically,
the state has management authority from the coast to 3 miles out
and the federal government manages miles 3 to 200 out. It is
known as the Exclusive Economic Zone (EEZ).
MS. ALLOWAY detailed that the federal government amended the FMP
to recognize the benefit of state management in particular
instances. It excluded three pockets within the EEZ including a
pocket adjacent to Cook Inlet. The federal government said, "We
recognize the benefits of state management and we are going
delegate our management authority within the EEZ to the states."
MS. ALLOWAY noted the United Cook Inlet Drift Association
(UCIDA) filed litigation to challenge the federal government's
delegation. The Ninth Circuit agreed with UCIDA to the extent
that the federal government had to create a plan and say why it
was delegating management authority to the state.
She detailed the district courtafter the higher court remanded
the case to the lower courtimposed deadlines on the council to
issue the plan. The plan was issued late in 2020 where the
federal council closed the EEZ in Cook Inlet to any commercial
salmon fishing. That plansent up to the Secretaryis awaiting a
final decision and final rule promulgation.
4:45:13 PM
CHAIR REVAK asked Ms. Mills if she had anything to add.
MS. MILLS agreed with Senator Micciche that cases could change;
DOL is getting requests for stays so that the federal government
can reevaluate its case positions.
CHAIR REVAK expressed appreciation for DOL's time and testimony,
and agreed with the statement that these cases are bipartisan;
they are Alaskan issues. Importantly, DOL represents Alaska when
the state is at odds with what the federal government
4:48:07 PM
There being no further business to come before the committee,
Chair Revak adjourned the Senate Resources Standing Committee
meeting at 4:48 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| SRES DOL-Federal Issues List Feb 2021.pdf |
SRES 2/24/2021 3:30:00 PM |
DOL Federal Issues List Feb 2021 |