02/15/2023 03:30 PM Senate RESOURCES
| Audio | Topic |
|---|---|
| Start | |
| SB33 | |
| Presentation(s): Overview of Statehood Defense | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| *+ | SB 33 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
ALASKA STATE LEGISLATURE
SENATE RESOURCES STANDING COMMITTEE
February 15, 2023
3:30 p.m.
MEMBERS PRESENT
Senator Click Bishop, Co-Chair
Senator Cathy Giessel, Co-Chair
Senator Bill Wielechowski, Vice Chair
Senator Scott Kawasaki
Senator James Kaufman
Senator Forrest Dunbar
Senator Matt Claman
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
SENATE BILL NO. 33
"An Act relating to the renewable energy grant fund and
recommendation program; and providing for an effective date."
- MOVED SB 33 OUT OF COMMITTEE
PRESENTATION(S): OVERVIEW OF STATEHOOD DEFENSE
- HEARD
PREVIOUS COMMITTEE ACTION
BILL: SB 33
SHORT TITLE: RENEWABLE ENERGY GRANT FUND
SPONSOR(s): SENATOR(s) KAUFMAN
01/18/23 (S) PREFILE RELEASED 1/13/23
01/18/23 (S) READ THE FIRST TIME - REFERRALS
01/18/23 (S) RES, FIN
02/13/23 (S) RES AT 3:30 PM BUTROVICH 205
02/13/23 (S) Heard & Held
02/13/23 (S) MINUTE(RES)
02/15/23 (S) RES AT 3:30 PM BUTROVICH 205
WITNESS REGISTER
DOUG WOODBY
350 Juneau, Climate Action for Juneau
Juneau, Alaska
POSITION STATEMENT: Testified in support of SB 33.
MATTHEW JACKSON, Climate Program Manager
Southeast Alaska Conservation Council
Sitka, Alaska
POSITION STATEMENT: Testified in support of SB 33.
JASON BRUNE, Commissioner
Department of Environmental Conservation
Juneau, Alaska
POSITION STATEMENT: Participated in the overview of statehood
defense from DEC's perspective.
CORI MILLS, Deputy Attorney General
Office of the Attorney General
Civil Division
Department of Law
Juneau, Alaska
POSITION STATEMENT: Participated in the overview of statehood
defense from DOL's perspective.
JOHN BOYLE, Commissioner-Designee
Department of Natural Resources
Anchorage, Alaska
POSITION STATEMENT: Participated in the overview of statehood
defense from DNR's perspective.
BRENT GOODRUM, Deputy Commissioner
Department of Natural Resources
Anchorage, Alaska
POSITION STATEMENT: Participated in the overview of statehood
defense from DNR's perspective.
JOHN CROWTHER, Deputy Commissioner
Department of Natural Resources
Anchorage, Alaska
POSITION STATEMENT: Participated in the overview of statehood
defense from DNR's perspective.
BEN MULLIGAN, Deputy Commissioner
Alaska Department of Fish and Game
Juneau, Alaska
POSITION STATEMENT: Participated in the overview of statehood
defense from ADF&G's perspective.
ACTION NARRATIVE
3:30:20 PM
CO-CHAIR CLICK BISHOP called the Senate Resources Standing
Committee meeting to order at 3:30 p.m. Present at the call to
order were Senators Kaufman, Dunbar, Wielechowski, Claman, Co-
Chair Giessel and Co-Chair Bishop. Senator Kawasaki arrived
during introductions.
SB 33-RENEWABLE ENERGY GRANT FUND
3:31:20 PM
CO-CHAIR BISHOP announced the consideration of SENATE BILL NO.
33 "An Act relating to the renewable energy grant fund and
recommendation program; and providing for an effective date."
He noted that this was the second hearing. The intention was to
hear public testimony and look to the will of the committee.
3:31:43 PM
CO-CHAIR BISHOP opened public testimony on SB 33.
3:32:00 PM
DOUG WOODBY, 350 Juneau, Climate Action for Alaska, Juneau,
Alaska, stated support for SB 33. He emphasized the importance
of extending the Renewable Energy Grant Fund for at least 10
years and appropriating at least $50 million annually. Rural
communities in particular will benefit. The bill is important
for the rapid transition to renewable energy that's needed to
have sustainable communities in Alaska.
3:32:58 PM
MATTHEW JACKSON, Climate Program Manager, Southeast Alaska
Conservation Council (SEAAC), Sitka, Alaska, testified in
support of SB 33. He stated that he also works closely with the
Alaska Climate Alliance and recently submitted a petition to the
committee with 230 signatures from people statewide who support
the Renewable Energy Grant Fund. He echoed Mr. Woodby's
sentiments that this fund has been wildly successful. It has
funded more than 100 projects that are operational and 44 more
under development. It keeps communities from burning multiple
millions of gallons of diesel every year. This saves multiple
millions of dollars and keeps millions of tons of carbon dioxide
from being released into the air. He urged the committee to not
only pass SB 33, but also to fund it with $50 million during the
budget process this year. The Renewable Energy Grant Fund is the
most effective means of helping communities transition to
renewable energy.
3:35:19 PM
CO-CHAIR BISHOP closed public testimony on SB 33, and reviewed
the fiscal note.
Department: Department of Commerce, Community and
Economic Development
Appropriation: Alaska Energy Authority
Allocation: Statewide Project Development, Alternative
Energy and Efficiency
OMB Component Number: 2888
Fund Source (Operating Only): 1210 Renewable Energy
(DGF) - $1.4 million/year through FY29.
SB33 extends the effective date of the Renewable
Energy Grant Fund and recommendation program to June
30, 2033.
CO-CHAIR BISHOP found no questions or comments and solicited the
will of the committee.
3:36:22 PM
CO-CHAIR GIESSEL moved to report SB 33, work order 33-LS0235\A,
from committee with individual recommendations and attached
fiscal note(s).
CO-CHAIR BISHOP found no objection and SB 33 was reported from
the Senate Resources Standing Committee.
3:36:42 PM
At ease
^PRESENTATION(S): OVERVIEW OF STATEHOOD DEFENSE
PRESENTATION(S): OVERVIEW OF STATEHOOD DEFENSE
3:38:47 PM
CO-CHAIR GIESSEL reconvened the meeting and announced the
committee would hear an overview of statehood defense by a group
of commissioners and attorneys. She invited the presenters to
the witness table.
3:39:38 PM
JASON BRUNE, Commissioner, Department of Environmental
Conservation, Juneau, Alaska, stated that he was eager to talk
about the measures that have been implemented over the last two
years to defend the state. He introduced the panel that had been
meeting weekly over the last two years to talk about how the
state can defend against attacks and have self-determination. He
thanked the legislature for funding this effort.
COMMSSIONER BRUNE stated that statehood defense is about more
than litigation. It is preparing for the potential for
litigation with baseline science that does not rely solely on
science from the federal government. This requires preparing a
record that is as Alaska-specific as possible. Participating in
amicus briefs and initiating litigation may be appropriate and
it's important to engage with other states impacted by federal
policies from a Tenth Amendment perspective. He emphasized the
importance of Alaska having control over its destiny, speaking
to the following definition of statehood defense:
Defending the rights and privileges promised to the
Citizens of the State of Alaska upon the State's
admission into the Union, especially concerning the
use, conservation, and management of the State's
lands, waters, and natural resources.
3:42:20 PM
COMMSSIONER BRUNE spoke to the following laws that protect
Alaska's right to manage its own land, waters, fish, and
wildlife: statehood defense:
United States Constitution:
• Establishes a federal government of limited power
• 10th Amendment Expressly reserves State rights
• Equal Footing Doctrine State submerged lands,
inland and tidal waters
• Anti-commandeering doctrine
Statehood Act:
• State land selections
• State submerged lands
• Right to manage state lands, waters, fishery
resources, mineral development, and wildlife
Federal Submerged Lands Act:
• State submerged lands inland, tidal, and
coastal waters
Alaska National Interest Lands Conservation Act
(ANILCA):
• State land selections
• Management of state lands, waters, fish and
wildlife confirmed
• Sturgeon v. Frost limits the extent of federal
lands in Conservation System Units
Alaska Native Claims Settlement Act (ANCSA)
3:42:45 PM
COMMISSIONER BRUNE spoke about taking on statehood defense,
touching briefly on the following points on slide 6:
• Limit federal overreach into issues that are best
handled by the State
• Assert and defend State's ownership and
management of its resources for the benefit of
the citizens of the State
He noted that Deputy Commissioner Mulligan would talk about some
of ADF&G's studies on polar bears and other fish and wildlife
species.
• Defend State and its citizens' ability to access
State, private, and Tribal resources
• By
• State of Alaska Science
• Comment/Record development
• Direct litigation
• Intervention
• Amicus support
• Multi-State Coordination
COMMISSIONER BRUNE stated that the general strategy to defend
statehood is to engage experts on Alaska's resources, partner
with others, and outsource when necessary. He deferred to Cori
Mills to discuss how funding in defense of statehood had been
used in the past.
3:44:23 PM
CORI MILLS, Deputy Attorney General, Office of the Attorney
General, Civil Division, Department of Law (DOL), Juneau,
Alaska, directed attention to the legal proceedings listed on
slide 8 and explained that it is the current list of cases that
the legislature had funded through the multi-year statehood
defense funding. She opined that the list would grow by three or
four in the next several months because of upcoming matters
related to waters of the United States (WOTUS) and the recent
Tongass Roadless Rule. She said what's important to note is that
the legislature had appropriated about $6.5 million, and half
had been spent. She directed attention to the anticipated costs
column that totals about $8.7 million and conveyed that these
capture the upper range of potential costs.
She also advised that Department of Law releases an annual
federal law and litigation report for the legislature that has
47 total cases, some of which draw from different pots of money
than the multi-year statehood defense fund.
3:46:22 PM
SENATOR DUNBAR asked how the legislature knows that the funding
it appropriates for statehood defense actually go to these
lawsuits and not to anti-birth-control lawsuits, for example.
MS. MILLS answered that the department uses a case management
system and each case is pointed to a specific funding source.
That funding source can be undesignated general fund or another
department's reimbursable services agreement if they are paying
for the litigation. For statehood defense cases there are three
fund codes: 1) the original $4 million, 2) $2 million from last
year, and 3) $500,000 specifically for the Tongass litigation.
Outside counsel contracts are handled the same way. She reviews
those invoices to make sure they point to the correct funding
source. The matters on slide 8 are pointed to the three
statehood defense funding sources.
She clarified that the abortion case he mentioned, was an amicus
brief that specifically supported a state's right to regulate
that type of public health care. Department of Law is not a
party to that and it does not change any laws relating to
abortion in Alaska.
SENATOR DUNBAR said it seems as though that matter could easily
fit under statehood defense. He asked how a distinction is made
and what the legislative recourse would be if DOL were to decide
to use that as a fund source.
MS. MILLS restated that the department is very specific about
funding sources and where matters are pointed. An audit will
show which cases have been funded in which manner. Also, there
isn't a significant cost associated with joining an amicus
brief. She offered to follow up with further conversations about
the process.
3:50:11 PM
SENATOR CLAMAN, in follow up to Senator Dunbar's questions, said
the news reported that the Texas attorney general joined the
lawsuit as a party plaintiff. He offered his understanding and
experience that amicus briefs come later in the process, often
after an appeal. He asked whether he misunderstood or the news
got it wrong.
MS. MILLS opined that the news misunderstood and the reporting
was inaccurate.
SENATOR CLAMAN asked why the Department of Law disregarded the
legislature's specific directive to stop participating in the
Janus suit.
3:52:20 PM
MS. MILLS answered that the Janus matter was about spending
outside counsel dollars on the lawsuit, not about not
participating at all. That distinction was not in the budget
last year; it was in the previous year's budget. In any event,
she said DOL was no longer using outside counsel for that case.
SENATOR CLAMAN asked how the legislature should express its
desire appropriately, if the body were to decide it was not
going to appropriate money to challenge the Pebble Mine
decision.
3:53:42 PM
MS. MILLS opined that there was a fundamental disagreement
between the legislature and the Department of Law about what the
appropriation power does versus the Confinement Clause in
substantive law. The attorney general has the authority over
litigation decisions, including contracting with outside
counsel. She offered to share letters that provide the
department's position on those issues. She said the department
has tried to adhere to the legislature's intent, but it is a
substantive law and separation of powers issue for the
legislature to tell the department it can or cannot enter into
certain types of lawsuits.
She restated that DOL had been strict in how it spent the money
the legislature had appropriated for the lawsuits listed on
slide 8. The focus is on natural resources and the purposes of
these departments in the arena of natural resources management.
3:55:09 PM
SENATOR WIELECHOWSKI said his recollection of the Janus matter
was different. He referenced a letter that was sent to the
Legislative Budget and Audit Committee that indicated there had
been a clear violation. The administration violated the
directive not to spend any funds on Janus. He said he supports
defending state's rights but when the legislature inserts a
provision in the budget that prohibits spending on something and
the administration ignores that directive, it is a violation of
trust. As the appropriating body, the legislature wants to know
that the funds will be used as directed.
3:56:24 PM
COMMISSIONER BRUNE transitioned to talk specifically about DEC
activities in defense of statehood. He advanced to slide 10, and
restated that Alaska wants to be in control of its own destiny.
One way to do this is to assume primacy of federal programs
within the state. Currently, Alaska has primacy over the
following programs:
similar Safe Drinking Water Act
similar Clean Air Act
similar Clean Water Act Section 402, National Pollution Discharge
Elimination System C
The FY23 budget has funding to create a hazardous waste control
program under the Resource Conservation Recovery Act (RCRA).
The governor's amended budget has approximately $5 million to
assume primacy of the Section 404, Dredge & Fill Permitting
Program under the Clean Water Act.
3:58:25 PM
SENATOR KAWASAKI asked, in addition to what's in the governor's
amended budget, would statehood defense money also be spent to
assume primacy of the Section 404, Dredge & Fill Permitting
Program.
COMMISSIONER BRUNE answered no; the governor's budget proposes
$10 million for the preparation of comments, science, and
litigation. The efforts to assume primacy over the Section 404
Dredge & Fill Permitting Program are separate budget items.
SENATOR KAWASAKI asked if that separate budget item was
currently in DEC's budget.
COMMISSIONER BRUNE clarified that while having primacy programs
is a component of statehood defense, it is not part of the $10
million that is proposed for the governor's statehood defense
budget.
4:00:10 PM
SENATOR WIELECHOWSKI asked if staffing was sufficient for the
programs that the state had already assumed primacy, or if there
were complaints from industry about the lack of staff.
COMMISSIONER BRUNE answered that before the legislature provided
funding to create a hazardous waste control program under RCRA,
the Environmental Protection Agency (EPA) provided program
oversite with one-half of one position located in Seattle. DEC
proposed six positions so it certainly seems that would be
sufficient, but they were only in the application process. He
continued that there was absolutely sufficient staff for the
Safe Drinking Water Act. The state assumed primacy over the
NPDES Program in 2008 through 2012 with 41 positions. In
response to an annual report four years ago that said
enforcement staffing was insufficient, he requested four
additional enforcement staff positions and the reports since
then have been glowing.
4:02:25 PM
SENATOR WIELECHOWSKI asked if industry had lodged complaints
about the time DEC takes to process permits.
COMMISSIONER BRUNE said the department has never missed a
permitting deadline related to the Clean Air program, but
industry nevertheless has requested a more expedited timeline
for the permitting process.
4:03:05 PM
COMMISSIONER BRUNE directed attention to the federal proposals
listed on slide 11 that DEC experts evaluated and provided
commentary to articulate Alaska's perspective. He highlighted
the following:
Waters of the United States (WOTUS): EPA and the Army Corps
continue to push the limits of federal jurisdiction under the
Clean Water Act and Congress's authority under the U.S.
Constitution. DEC and DOL prepared comments and are evaluating
the final rule. Most recently, the Biden administration put
forward an expanded definition of WOTUS. DEC submitted extensive
comments expressing concern about that.
Clean Water Act Section 404(c) Dredge and Fill Permitting
Program: He clarified that this effort is not just about the
Pebble Mine; EPA peremptorily vetoed 41 additional claims in the
area. This made 309 square miles of state-owned lands off limits
to resource development. DNR, DEC, ADF&G, and DOL commented and
are now preparing to challenge the final determination.
Fairbanks PM2.5 Non-Attainment Area: EPA proposes to disapprove
the stakeholder-driven plan for correcting air quality concerns;
DEC will engage to address concerns raised. [DEC also intervened
in a lawsuit brought by Earth Justice seeking to force EPA's
hand to ensure the state is heard.] He said it's important to
ensure that the State Implementation Plans (SIP) are developed.
DEC believes the state can improve air quality in Fairbanks and
prevent an adverse effect on the economy. He noted that there
would be a public hearing on the issue in early March.
4:04:50 PM
Aviation Gas Endangerment Finding: Rural Alaska relies on
aviation gas to deliver goods. The EPA proposal [regarding lead
emissions from aircraft] may compromise access to rural
communities.
Oil & Gas Methane Rule: The EPA proposes to penalize maintenance
activities and unleash third-party observers to oversee
facilities. Nevertheless, the state has to continue to remind
the EPA that it is doing things right and is not a major
contributor to the release of methane gas into the environment.
By state law, methane from the North Slope is reinjected for
enhanced oil recovery.
COMMISSIONER BRUNE advanced to slide 12 and discussed the areas
that DEC has engaged on national policy priorities to ensure the
state's perspective is represented.
Arctic Policy: Alaska is the reason the US is an Arctic nation,
so it's appropriate that the new Arctic ambassador is an
Alaskan. Alaska should be guiding the science and policy.
Environmental Justice Initiatives: Alaska works to highlight
aspects of social justice that are often overlooked. The
economic opportunities afforded Red Dog and oil development on
the North Slope have increased life expectancy and helped to
maintain cultures and subsistence lifestyles.
Maintenance and Operations for IIJA-Funded Facilities: Alaska
has highlighted the long-term operation and maintenance needs
for the 32 communities that will be upgraded from honey buckets.
Human Health Criteria
Environmental Social Governance and Greenhouse Gas Analyses
Toxic Release Inventory: The Red Dog and Greens Creek mines are
known as two of the top five releasers of toxic material, but
it's because of what is defined as a release. Moving a rock from
one place to the other is considered a release, but
manufacturers in the Lower 48 that release toxins into the air
or water are ranked lower because of the way they're classified.
DEC is pointing this out to the EPA and trying to change how
toxic release inventory is identified.
COMMISSIONER BRUNE advanced to slide 13 and discussed two areas
where DEC is holding federal agencies accountable:
ANCSA Contaminated Sites: DEC is pushing the
Department of Interior to clean up contamination they
left on properties the federal government transferred
to Alaska Native Corporations under ANCSA.
EPA Woodstove Certification Program: EPA required DEC
(and Fairbanks residents) to replace old woodstoves in
the non-attainment area with EPA-certified woodstoves.
DEC discovered that the EPA certification program is
fundamentally flawed and is pushing the agencies to do
its job to ensure the new stoves are actually cleaner.
4:11:20 PM
SENATOR DUNBAR questioned the reason that maintenance and
operations for IAJA funded facilities were in a DEC statehood
defense presentation. He asked if DEC intended to lobby or
litigate the matter.
COMMISSIONER BRUNE responded that the Village Safe Water Program
and the State Revolving Loan Fund help put infrastructure for
potable and waste water in rural Alaska. He stressed that it was
a statehood defense issue to hold the federal government
accountable for the ongoing maintenance and operations of that
infrastructure or the legislature would be responsible for
appropriating the funds. He noted that the director of water for
EPA told DEC to ignore the scoring for managerial, technical,
and financial requirements for communities to qualify for that
infrastructure and just put it in.
SENATOR DUNBAR indicated he was still puzzling over the
connection to DEC.
COMMISSIONER BRUNE offered to follow up after the meeting to
provide additional clarity.
CO-CHAIR BISHOP asked if the director of water for the EPA had
articulated her position in writing.
COMMISSIONER BRUNE answered no.
CO-CHAIR GIESSEL recognized DNR Commissioner-Designee Boyle as
the next presenter.
4:14:07 PM
JOHN BOYLE, Commissioner-Designee, Department of Natural
Resources, Anchorage, Alaska, stated that DNR's perspective of
statehood defense is through the prism of the Alaska Statehood
Act. The state received a land entitlement of approximately 105
million acres so it could stand on its own economically and not
become a ward of the federal government. At that time, it was
generally understood that Alaska's future success as a state was
tied to its abundant and diverse natural resources. This state
has found and will continue to find its wellbeing and prosperity
tied to its oil and gas resources, minerals, fish and game, and
timber through traditional uses or innovative means such as
carbon offset and sequestration programs or expanded tourism
opportunities.
COMMISSIONER-DESIGNEE BOYLE emphasized that the state's wealth
was inherently meaningless without having management and control
of transportation corridors such as rivers, lakes, tidal waters,
RS 2477 rights-of-way, and other state land easements so
Alaskans can access the natural resources in the state and reach
the markets for those resources. He said this was why the
importance of statehood defense cannot be overstated. Through
statehood defense initiatives, DNR endeavors to secure, for
current and future Alaskans, the right to enjoy the promises
made at statehood.
4:17:04 PM
COMMISSIONER-DESIGNEE BOYLE displayed slide 15 and spoke to
navigability as a vital aspect of state sovereignty. It read:
Estimated 800,000 miles of Navigable Rivers in Alaska
Estimated 30 million acres of Navigable Lakes in
Alaska
The State of Alaska owns the submerged lands beneath
every navigable-in-fact river and lake, and beneath
tidally influenced waters in the stateunless a valid
pre-Statehood withdrawal or reservation defeats State
title.
In Federal Conservation System Unit areas created in
Alaska post-Statehood, the submerged lands beneath
navigable-in-fact and tidally influenced waters are
State-owned lands.
This is a fundamental promise of Statehood enjoyed by
Alaskalike all other statespursuant to the Equal
Footing Doctrine of the United States Constitution.
COMMISSIONER-DESIGNEE BOYLE displayed slide 16, Federal
acknowledgement of State title to submerged lands (1959-
present). He deferred to Mr. Goodrum to discuss the important
work being done by DNR's Public Access Assertion and Defense
(PAAD) Team, but not before noting that their work to determine
navigability of waterways often involved high adventure and the
use of rafts and camping equipment.
4:18:49 PM
BRENT GOODRUM, Deputy Commissioner, Department of Natural
Resources, Anchorage, Alaska, directed attention to slide 17,
stating that on the second anniversary of the Sturgeon v. Frost
II US Supreme Court decision in March 2021, Governor Dunleavy
announced the Unlocking Alaska Statehood Defense Initiative.
This signaled that Alaska was not content to wait for federal
agencies to tell the state it could manage its own lands.
Rather, Alaska was going to act like the rightful landowner.
He spoke to the multifaceted approach the state is taking to
exercise its ownership rights of navigability:
similar Heighten number of Recordable Disclaimers of Interest (RDI)
applications filed to exacerbate BLM backlog. Since the
state last filed suit several years ago on the north and
middle forks of the Fortymile River, the Bureau of Land
Management has not issued a single RDI determination,
despite the growing number of staff to do this.
similar Assert state management rights of submerged lands in
federal areas. DNR hopes that legislation to codify state-
owned navigable waters in federal areas will pass this
year.
similar Aggressive approach in state and federal land planning
initiatives.
similar Release map of state-owned navigable waters in federal
areas.
similar Legislatively codify state-owned navigable waters in
federal areas.
similar Intensify quiet title litigation against the federal
government. He noted that this will be demonstrated on
slide 18.
similar Partner with users to document navigable water usage for
strategic purposes.
similar Negotiate in good faith with federal authorities.
similar Educate and energize the public on state efforts and
heighten federal failures.
4:21:50 PM
MR. GOODRUM highlighted DNR's efforts to assert state interests
pursuant to the federal Quiet Title Act listed on slide 18.
Pending Cases:
North Fork and Middle Fork of Fortymile River
(Pending) (BLM)
He noted that the state often goes through a protracted
litigation process only to have BLM disclaim interest in the
matter shortly before a court ruling. To date in the Fortymile
River litigation, BLM had disclaimed about 80 percent of the
submerged lands in question. He opined that the state would
likely still pursue summary judgement.
Middle Fork of Koyukuk River, Bettles River and
Dietrich River (Pending) (NPS, BLM)
Mulchatna River, Chilikadrotna River, Turquoise
Lake, Twin Lakes (Pending) (NPS, BLM)
Mendenhall River and Mendenhall Lake (Pending)(USFS,
BLM)
Ready to File (Expired 180-Day Quiet Title Act Notice
of Intent):
Birch Creek (BLM)
Sarkar Lake and Prince of Wales Island (USFS, BLM)
Walker Lake and Kobuk River (NPS, BLM)
Ready to Serve 180-Day Quiet Title Act Notice of
Intent:
Telaquana River, Necons River, Stony River, Two
Lakes, Telaquana Lake (NPS, BLM)
Nabesna River (BLM NPS USFWS)
Noatak River (NPS, BLM)
Resurrection River (USFS, NPS, BLM)
Other rivers and lakes of great strategic importance
4:23:40 PM
SENATOR CLAMAN offered his understanding that in the Sturgeon
case, the state is seeking title to the submerged lands based on
a finding that the waterbody is navigable and navigability makes
it a federal waterbody.
MR. GOODRUM said that's close. He explained that if a waterbody
is navigable in fact, the submerged lands beneath that waterbody
are rightfully held by the state.
SENATOR CLAMAN maintained that he did have it right; the federal
government owns the navigable waters, and when the state files
quiet title action it is to the submerged lands under a river or
lake. He noted that Ms. Mills was nodding her head.
4:25:08 PM
MS. MILLS said multiple laws and constitutional principles
relate to navigability so applicability depends on the body of
law and area of regulation. Sturgeon said operation of a
hovercraft was okay under ANILCA, the Submerged Lands Act, and
the Equal Footing Doctrine, and the US Supreme Court agreed.
SENATOR CLAMAN offered that there has to be a river-by-river,
stream-by-stream, or lake-by-lake determination. Sometimes the
state can exercise exclusive control over regulating that water,
sometimes it's done concurrently with the federal government,
and sometimes the state has no power to regulate the water.
MS. MILLS said that sounds right, but she would defer to Ron
Opsahl who would speak to the committee on Friday.
4:27:20 PM
SENATOR WIELECHOWSKI asked what would change if the state were
to be successful in its quiet title action for the Mendenhall
River and Mendenhall Lake, for example.
MR. GOODRUM said it would mean that the US Forest Service
acknowledges it has an adjacent landowner. If the agency were to
decide to build a dock or structure in the submerged land of the
lake, they would apply for a state permit.
SENATOR WIELECHOWSKI asked if the Forest Service could build a
dock or structure on the Mendenhall Lake right now.
MR. GOODRUM answered that with quiet title the regulation of the
uses and activities on the lake or river would fall to the state
as opposed to the Forest Service making those decisions
unilaterally regardless of ownership of the lake.
4:29:00 PM
SENATOR WIELECHOWSKI recalled that the Juneau representatives'
position on that lawsuit was that the people of Juneau did not
object to the way Mendenhall River and Mendenhall Lake were
being managed. He asked if that was incorrect.
MR. GOODRUM answered that those waterbodies were included in the
evaluation by the state as the landowner, of waterbodies from a
navigability perspective.
SENATOR WIELECHOWSKI wondered if it was the best use of limited
resources if the Juneau community was happy with the status quo
management of the Mendenhall Lake and Mendenhall River.
CO-CHAIR GIESSEL asked Mr. Goodrum to continue the presentation.
4:30:57 PM
MR. GOODRUM advanced to slide 19 and briefly spoke to the
following:
Statehood Defense and RS 2477 rights-of-way
Alaska has a vast network of RS 2477 rights-of-way
(ROWs) that often provide the only land-based public
access to many areas statewide.
Many of Alaska's state-owned RS 2477 ROWs cross
federal lands in conservation system units (CSUs)
across the state.
Even when located within the external boundaries of a
federal CSU, a valid RS 2477 ROW remains a property
interest of the SOA and remains subject to state
ownership, management and control.
MR. GOODRUM directed attention to the state maps on slide 20.
The image on the left depicts the DOT road network and the image
on the right depicts the DOT road network plus the RS 2477
network that has been codified by the legislature. He pointed
out that the critically important Dalton Highway is a RS 2477
right.
MR. GOODRUM advanced to slide 21 and explained that in the
spring of 2022, DNR launched the Yukon-Charley Rivers National
Preserve RS 2477 project. Field work commenced for the purpose
of seeking quiet title to all known RS 2477 rights-of-way in an
entire federal conservation system unit (CSU). This was a break
from the historical approach of litigating the validity of RS
2477 ROWs either route-by-route or mile-by-mile. The eight RS
2477 ROWs within the Yukon-Charley Rivers National Preserve, in
conjunction with the state's navigable waters, create a
transportation network. In December 2022, the state filed a 120-
day notice. The image on the right of the slide shows a portion
of the 190 mile Eagle to Circle mail trail that is part of this
network. The field work for this important endeavor will
continue in the coming season.
4:33:55 PM
JOHN CROWTHER, Deputy Commissioner, Department of Natural
Resources, Anchorage, Alaska, stated that the last few slides
provide updated information about the Willow Project within the
National Petroleum Reserve-Alaska (NPRA), which is the 1002 Area
of the Arctic National Wildlife Refuge; and a little about the
Ambler Road Project and the associated federal authorization and
issues the department sees with each one of those.
He spoke to slide 22:
Willow and NPR-A Update
Permitting
• Comment period for Draft Final Supplemental
Environmental Impact Statement (SEIS) closed August
29, 2022
• Final SEIS review completed by cooperating agencies in
January 2023
• Publication of Final SEIS February 1, 2023
• A Record of Decision (ROD) should follow as soon as 30
days after Final SEIS publication potentially early
March
Anticipated Performance
• Expected peak production of 180,000 barrels of oil per
day
• 600 million barrels of oil estimated total production
over project life
• $817 billion in royalty and property tax payment to
State of Alaska, US, and municipal governments
Integrated Activity Plan (IAP) Litigation
• Biden Administration has reverted to 2013 management
plan for the broader National Petroleum Reserve
Alaska (NPR-A) and some parties are continuing to
litigate
• No lease sales have been scheduled/planned at this
time
4:38:02 PM
SENATOR WIELECHOWSKI referenced the bullet point about
anticipated royalty and property tax payments of $8-17 billion.
He said his understanding was that the state does not get any
royalties from Willow. He asked if that was accurate.
MR. CROWTHER replied that the law that allocates the royalty
interest on federal lands in the NPRA directs 50 percent to the
federal government and 50 percent to the state. However,
pursuant to the federal law, the payments go into a fund
allocated to meeting the needs of communities most impacted or
proximate to the development. State law established the Impact
Assistance Program that is managed by the Department of
Commerce, Community and Economic Development (DCCED) for
villages on the North Slope. Grant funds from that program go to
meet the needs of impacted communities on the North Slope. He
noted that should Willow move into full development, the state's
royalty share and thus the funds going into that fund would
increase significantly.
SENATOR WIELECHOWSKI noted that a flier from ConocoPhillips said
the state was projected to receive $1.3 billion over the life of
the project from property tax, corporate income tax, and
severance taxes.
MR. CROWTHER said it depends on how the life of the project is
assessed, but that's an approximate number.
SENATOR WIELECHOWSKI said he'd heard that it will cost $8-10
billion to develop the field.
MR. CROWTHER said that sounded about right.
SENATOR WIELECHOWSKI pointed out that the current tax structure
allows ConocoPhillips to write off 35 percent of the development
costs on the taxes it pays to the state. He calculated that if
the cost were $10 billion, the state would be writing off $3.5
billion in production taxes over the life of the development and
getting back $1.3 billion in production taxes, corporate taxes,
and property taxes. He asked if that sounded about right.
4:40:26 PM
MR. CROWTHER said he believed the Department of Revenue was
working on a more specific estimate of the revenues and tax
revisions as they apply to the Willow Project. It should be
available in about a week.
4:41:04 PM
SENATOR KAUFMAN asked for the scope of the Integrated Activity
Plan.
MR. CROWTHER explained that the Integrated Activity Plan is a
federal land management plan for the entire NPRA. On a basic
level, it lays out where there might be oil and gas leasing and
where infrastructure might and might not be appropriate. The
state does analogous land management plans for state lands, and
federal agencies do land management plans for other federal
lands. In the NPRA the land management plan is uniquely called
the Integrated Activity Plan.
SENATOR KAUFMAN said he'd like to learn more about the master
plan for primacy. He further asked if there was some way to
select good projects for primacy that are both proactive and
reactive to emerging issues.
4:43:06 PM
COMMISSIONER-DESIGNEE BOYLE conveyed that the state had serious
reservations about returning to the 2013 IAP. It put more than
50 percent of the NPRA off limits to oil and gas development and
created expansive special areas where not only could there be no
oil and gas development, but also no surface development. The
local stakeholders found serious flaws in BLM's methodology and
said multiple times that it would significantly impact
communities' ability to develop infrastructure and thus property
tax revenues. It sets bad precedent in terms of making the NPRA
more a conservation unit than an area where oil and gas can be
developed responsibly.
4:45:52 PM
MR. CROWTHER added that the Department of Law could brief the
committee on Friday on the status of the continuing litigation
on the Integrated Activity Plan. He advanced to slide 23 and
provided the following update on the Arctic National Wildlife
Refuge (ANWR).
similar The 2017 Tax Cuts and Jobs Act authorized leasing and
development in the 1002 area on the coastal plain of ANWR.
That law required an initial lease sale and the federal
government conducted that sale and the leases were issued
in early 2021. Shortly thereafter the new administration
took actions that have affected the issued lease rights and
the broader program.
similar Federal law still requires a second lease sale by the end
of 2024.
similar Part of the administrative actions in early 2021 was a
suspension order on the leases. AIDEA is the sole remaining
lessee and is pursuing litigation with the state,
challenging that the suspension was inconsistent with the
regulations and laws that directed development to go
forward.
similar The Biden administration also initiated a new EIS for the
leasing program. The documents authorizing the first lease
sale were revised with the stated intent of having new
review documents and conditions for the second lease sale.
similar A new EIS document and federal review is expected in the
next 12 to 18 months. The state is a cooperating agency and
understands work has begun, but is not proceeding according
to the original timelines.
4:48:58 PM
SENATOR WIELECHOWSKI noted that the state was getting just 50
percent of the royalties from oil development on federal lands
in ANWR, which was a clear violation of the Statehood Act that
said the state would get 90 percent of those royalties. He asked
whether the state had considered litigation to challenge the 50
percent royalty split.
MR. CROWTHER said that as a general operating matter, Congress
has asserted its authority to change the 90:10 royalty split.
Congress exercised that authority previously when it adjusted
the ratio in the NPRA. The actionable compromise that Congress
made to advance development was with the perspective that 50
percent of something was more valuable than 90 percent of
nothing.
SENATOR WIELECHOWSKI asked if there was clear case law on
Congress's authority to unilaterally change the Statehood Act.
MS. MILLS said the Department of Law bought a claim in federal
court in the '80s or early '90s asserting the Statehood Act and
the court said those provisions could be changed because it
wasn't a contract. When it applies and when it does not apply is
very nuanced
4:52:07 PM
SENATOR WIELECHOWSKI said he'd like to hear from the Department
of Law on this matter at some point, because it means a
difference of billions of dollars to the state. He voiced
support for funding the effort and suggested an in-office
meeting to understand why the department hadn't gone forward.
MS. MILLS indicated she'd be happy to meet.
4:53:08 PM
MR. CROWTHER displayed slide 24 and provided an update on the
Ambler mining district and road project. He explained that this
federal project had a National Environmental Policy Act (NEPA)
review, and the EIS was developed. In 2020, that resulted in a
joint record of decision between the Bureau of Land Management
(BLM) and the Army Corps of Engineers. The road passes through
the Gates of the Arctic National Park and Preserve so leases
were required from the National Park Service. Leases from BLM
are also required for the areas close to the Dalton Highway.
In late 2020, litigation was filed in district court.
Ultimately, BLM accepted voluntary remand and asked for return
of the record of decision for revision and review. In response
to the remand, BLM began a supplemental EIS (SEIS) and has said
it will be released this year. The right-of-way is suspended
while the voluntary remand is ongoing, so project work cannot
continue. The state is also participating in litigation about
the scope of what has been suspended versus what can move
forward under preliminary work, including work on state and
private lands.
4:55:27 PM
BEN MULLIGAN, Deputy Commissioner, Alaska Department of Fish and
Game, Juneau, Alaska, began ADF&G's portion of the statehood
defense update by talking about the department's work to defend
the state's right to manage its own resources. He spoke to the
following points:
Protect Alaska's right to manage our state's fish and
game resources and their uses
Ensure the best available information is being used in
federal permitting processes
Challenge unnecessary and unjustified listings of
species and their critical habitats under the
Endangered Species Act
Fight for statehood was largely driven by federal fish
and game mismanagement
Alaska's statehood compact gave us control over fish
and game
On December 29, 1959, President Eisenhower formally
recognized the transfer of authority over fish and
game to Alaska (Executive Order 10857)
These rights were re-affirmed with the passage of
ANILCA
BOTTOMLINE
The State is the primary manager of fish and game on
all lands throughout Alaska
4:58:26 PM
MR. MULLIGAN spoke to why it is important for the state to have
the right to manage its own resources. He said food security and
continuing the heritage of hunting and fishing is important to
the department and a large majority of Alaskans. He emphasized
that Alaskans must be able to access fish and game resources
without being unnecessarily restricted by federal agencies. He
specifically mentioned the Endangered Species Act.
4:59:17 PM
MR. MULLIGAN stated that ADF&G's most important tool to protect
Alaska's right to manage, access, and use its natural resources
is to collect and utilize sound science that will inform federal
processes. He reviewed the following state science initiatives:
Inform Endangered Species Act potential listing
decisions
• Yellow cedar
• Bumble bees
• Bats
• Northern Bog Lemmings
• Southeast Alaska wolves
Inform Endangered Species Act Biological Opinion and
incidental take provisions, including decisions
involving the Marine Mammals Protection Act
• Polar Bear ITR
• Ringed Seal listing
5:02:25 PM
MR. MULLIGAN discussed informed participation and his role in
the federal subsistence program. That program has its own board
that takes action on federal public lands that relate to federal
subsistence. The department comments on every proposal that
comes before the board and participates in the federal
subsistence regional advisory councils. He advised that the
department provides much of the data that is used in this
process. State biologists provide much of the analyses of the
proposals that are considered.
He also highlighted the department's participation in lawsuits
to defend federal findings they support. He specifically
mentioned intervention in the lawsuit related to polar bear
incidental take regulations (ITR). The department has conducted
studies on snow modeling to better determine where polar bear
dens will occur because activity can't occur within a mile.
Studies are also ongoing to try to determine whether those
disturbances are actually detrimental and if certain activities
can occur.
5:05:41 PM
MR. MULLIGAN discussed the department's challenge of certain
federal decisions:
Unnecessary and unjustified listings of species and
their critical habitats under the Endangered Species
Act
• Ringed Seal Listing
• Ringed Seal Critical Habitat designation that
covered 350,000 square miles of ocean. That was
habitat, not critical habitat.
• Humpback Whale Critical habitat designation that
covers all marine waters.
5:07:46 PM
MR. MULLIGAN displayed the list of current litigation that gives
a flavor of what the commissioner might talk about on Friday.
The list read as follows:
Kuskokwim River Management
- United States v. Alaska
Kake Special Hunt
- State v. Federal Subsistence Board
Nelchina Caribou Herd
- State v. Federal Subsistence Board
Kenai Wildlife Refuge Rule
- State v. Haaland, et. al.
National Park Service Rule
- Alaska Wildlife Alliance v. Haaland
Metlakatla Fishing Jurisdiction
- Metlakatla Indian Community v. State
Chinook Salmon & Southern Killer Whales
- Wild Fish Conservancy v. Rumsey, et. al.
Upper Cook Inlet Salmon Management
-United Cook Inlet Drift Association v. NMFS
SENATOR KAUFMAN commented that being able to control access and
comply with the constitution was a critical issue. He expressed
interest in learning more about how lawsuits are prioritized,
given that there is a master plan for primacy.
5:09:29 PM
COMMISSIONER BRUNE stated that the departments welcome input
from the committee on what should be prioritized. He called
Senator Wielechowski's idea "fantastic" and assured the members
that it would be on the agenda of the next commissioner meeting.
SENATOR KAUFMAN suggested going for the biggest bang for the
buck.
5:10:23 PM
There being no further business to come before the committee,
Co-Chair Giessel adjourned the Senate Resources Standing
Committee meeting at 5:10 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| 02.15.23 SRES Statehhood Defense Update.pdf |
SRES 2/15/2023 3:30:00 PM |