Legislature(2017 - 2018)BUTROVICH 205

03/08/2017 03:30 PM RESOURCES

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03:30:27 PM Start
03:30:54 PM Overview: State Litigation on Federal Issues
04:26:31 PM Adjourn
* first hearing in first committee of referral
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+ Overview of State Litigation on Federal Issues: TELECONFERENCED
Department of Law
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                    ALASKA STATE LEGISLATURE                                                                                  
              SENATE RESOURCES STANDING COMMITTEE                                                                             
                         March 8, 2017                                                                                          
                           3:30 p.m.                                                                                            
                                                                                                                                
                                                                                                                                
MEMBERS PRESENT                                                                                                               
                                                                                                                                
Senator Cathy Giessel, Chair                                                                                                    
Senator John Coghill, Vice Chair                                                                                                
Senator Natasha von Imhof                                                                                                       
Senator Bert Stedman                                                                                                            
Senator Shelley Hughes                                                                                                          
Senator Kevin Meyer                                                                                                             
                                                                                                                                
MEMBERS ABSENT                                                                                                                
                                                                                                                                
Senator Bill Wielechowski                                                                                                       
                                                                                                                                
COMMITTEE CALENDAR                                                                                                            
                                                                                                                                
OVERVIEW: STATE LITIGATION ON FEDERAL ISSUES                                                                                    
                                                                                                                                
     - HEARD                                                                                                                    
                                                                                                                                
PREVIOUS COMMITTEE ACTION                                                                                                     
                                                                                                                                
No previous action to record                                                                                                    
                                                                                                                                
WITNESS REGISTER                                                                                                              
                                                                                                                                
JAHNA LINDEMUTH, State Attorney General                                                                                         
Department of Law (DOL)                                                                                                         
Anchorage, Alaska                                                                                                               
POSITION STATEMENT:  Provided an overview of state litigation on                                                              
federal issues.                                                                                                                 
                                                                                                                                
KENT SULLIVAN, Assistant Attorney General                                                                                       
Natural Resources Section                                                                                                       
Department of Law                                                                                                               
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:  Provided an overview of state litigation on                                                              
federal issues.                                                                                                                 
                                                                                                                                
                                                                                                                                
ACTION NARRATIVE                                                                                                              
                                                                                                                                
3:30:27 PM                                                                                                                    
CHAIR  CATHY   GIESSEL  called  the  Senate   Resources  Standing                                                             
Committee meeting  to order at 3:30  p.m. Present at the  call to                                                               
order were  Senators Coghill, Hughes, Meyer,  Stedman, Von Imhof,                                                               
and Chair Giessel.                                                                                                              
                                                                                                                                
                                                                                                                                
^Overview: State Litigation on Federal Issues                                                                                   
          Overview: State Litigation on Federal Issues                                                                      
                                                                                                                              
3:30:54 PM                                                                                                                    
CHAIR GIESSEL  stated that  the business today  is to  continue a                                                               
meeting that  was started on  February 15 on federal  issues that                                                               
the State  of Alaska  is disputing or  litigating with  regard to                                                               
access  and use  of  the state's  lands,  waters, and  subsurface                                                               
rights. She  said some  of the  more contentious  and complicated                                                               
issues were intentionally left until today.                                                                                     
                                                                                                                                
3:31:41 PM                                                                                                                    
JAHNA  LINDEMUTH,  State  Attorney  General,  Department  of  Law                                                               
(DOL),  Anchorage, Alaska,  said  she was  working  from a  table                                                               
dated  January  23,  2017  called "List  of  Federal  Issues  and                                                               
Conflicts." She recapped that they  had already covered navigable                                                               
waterways and most of the access  to land cases, but left some of                                                               
those and the Endangered Species Act  cases on pages 4 and 5. The                                                               
water, fish and game, mining, and  oil and gas cases have already                                                               
been covered.                                                                                                                   
                                                                                                                                
She  started with  the lands  into trust  issue and  the Akiachak                                                               
litigation  where  several tribes  filed  a  lawsuit against  the                                                               
federal  government   saying  that  the  Alaska   exemption  that                                                               
disallowed  Alaska  tribes  from  taking  lands  into  trust  was                                                               
illegal  and  inconsistent  with  federal  statute.  The  federal                                                               
government  fought  that and  Alaska  intervened  on the  federal                                                               
government's side.  The federal district court  ruled against the                                                               
federal government's  position, and  then the  federal government                                                               
changed its mind. It complied  with the federal order and changed                                                               
their regulations to allow Indian  tribes in Alaska to take lands                                                               
into trust.                                                                                                                     
                                                                                                                                
The federal decision  said there is no basis  for treating tribes                                                               
in  Alaska differently  than tribes  in  the rest  of the  United                                                               
States. In changing sides, the  federal government did two things                                                               
for Alaska's  position. It  left no  case in  controversy because                                                               
the original lawsuit had been  between the tribes and the federal                                                               
government.  It  also  meant  that   Alaska  had  a  new  federal                                                               
regulation interpreting federal statute  that was contrary to the                                                               
position  Alaska was  taking  in  that case,  a  very hard  legal                                                               
battle to fight.                                                                                                                
                                                                                                                                
So, when she became Attorney  General last August, the department                                                               
was facing  a deadline of  whether to appeal the  Ninth Circuit's                                                               
decision  that had  ruled  the case  moot  and that  procedurally                                                               
Alaska was  out of luck.  She talked  it over with  the governor,                                                               
the  lieutenant   governor,  explaining  that  her   approach  to                                                               
litigation  generally  is  that  although the  AG  may  have  the                                                               
statutory  authority to  make final  decisions,  it is  something                                                               
that you want client involvement in  no matter what, and you want                                                               
to have consistency.                                                                                                            
                                                                                                                                
3:35:27 PM                                                                                                                    
Her legal  advice was  consistent with  the policy  decision that                                                               
was made,  which was to not  fight lands into trust  making it an                                                               
absolute bar to allowing something  in Alaska, but rather to deal                                                               
with  it on  a case-by-case  basis. And  that is  where they  are                                                               
today.                                                                                                                          
                                                                                                                                
She  explained  that  in  going  forward,  whenever  the  federal                                                               
government receives  an application  to put  lands into  trust it                                                               
will  give  notice  and  allow  both  the  state  and  any  local                                                               
governments  to comment.  Although  it doesn't  say  this in  the                                                               
regulation, anyone  can comment. It's  not limited to  states and                                                               
local  governments. If  a Native  Corporation is  impacted or  if                                                               
there  is  a  resource  project,  anyone can  weigh  in  on  that                                                               
application.                                                                                                                    
                                                                                                                                
She  also  explained that  lands  into  trust  does not  give  an                                                               
absolute right to any Indian  tribe to have any particular parcel                                                               
taken into trust;  it is something that is  completely within the                                                               
discretion  of  the Department  of  Interior  (Interior) and  the                                                               
Bureau  of Indian  Affairs (BIA).  So, if  the BIA  says no  to a                                                               
particular parcel, there  is no right to appeal  or challenge it,                                                               
because it's completely discretionary.                                                                                          
                                                                                                                                
ATTORNEY GENERAL LINDEMUTH  said in dealing with this  on a case-                                                               
by-case basis  and actually sitting  down with the  Department of                                                               
Interior, Indian tribes,  and all of Alaskans  and working openly                                                               
and collaboratively  through any  concerns puts  her in  a better                                                               
position to advocate  for what the state wants  in any particular                                                               
instance.                                                                                                                       
                                                                                                                                
Often during  litigation, parties  take very  polarized positions                                                               
and predict  the worst case  scenario, and  if one loses  all the                                                               
horror that  you predicted will be  what you are facing.  So, one                                                               
of the things to consider in  deciding whether to go forward with                                                               
litigation  or  not  is  that  in  working  through  issues  more                                                               
collaboratively, you can take a  more middle ground and have your                                                               
absolute issues addressed.                                                                                                      
                                                                                                                                
3:38:32 PM                                                                                                                    
SENATOR COGHILL said  the idea of commenting  is appropriate, but                                                               
for  example,  if  the  state   and  citizens  comment,  is  that                                                               
equitable  comment?  Who has  more  standing  if it's  completely                                                               
discretionary to the BIA?                                                                                                       
                                                                                                                                
ATTORNEY  GENERAL LINDEMUTH  said  her  understanding in  talking                                                               
with  the  BIA is  that  they  really don't  want  to  end up  in                                                               
litigation  as has  happened in  the  Lower 48  on every  parcel.                                                               
However, all of  her comments thus far are  from discussions with                                                               
the prior administration,  and the big question  going forward is                                                               
what the new  administration does with this.  Secretary Zinke and                                                               
whatever team  he puts in  place may take a  completely different                                                               
view  and  it's  possible  that very  few  allocations  may  move                                                               
forward in the next four years.                                                                                                 
                                                                                                                                
SENATOR COGHILL  commented then, that  it is an open  question on                                                               
how much our voice counts.                                                                                                      
                                                                                                                                
3:40:54 PM                                                                                                                    
CHAIR GIESSEL  said she wondered  what the implications  were for                                                               
resources development in the state  - since this is the Resources                                                               
Committee.                                                                                                                      
                                                                                                                                
ATTORNEY GENERAL  LINDEMUTH said that  issue is at  her forefront                                                               
and Governor Walker is very  pro-resource development. She thinks                                                               
this  will be  a  fairly small  issue given  the  amount of  land                                                               
available for  Indian tribes  to put into  trust as  it currently                                                               
exists. The  big picture  is that Alaska  has 330  million acres;                                                               
approximately 60 percent is federal,  28 percent is state, and 12                                                               
percent is owned  by the Alaska Native  Claims Settlement (ANCSA)                                                               
corporations. Less  than 1 percent  is owned by  private parties,                                                               
which includes Indian tribes.                                                                                                   
                                                                                                                                
She has  a long history  of working with ANCSA  corporations, and                                                               
the  purpose  of  providing  ANCSA lands  to  both  regional  and                                                               
village  corporations   is  to  provide  a   source  of  economic                                                               
development, which  often leads to resource  development on those                                                               
lands. The significant  legal issue remaining is  whether a split                                                               
estate  could be  taken into  trust if,  for instance,  a village                                                               
corporation  transfers  a  surface  estate to  a  tribe  and  the                                                               
regional corporation  still owns the subsurface  estate, which is                                                               
the dominant estate, and wants to do resource development.                                                                      
                                                                                                                                
ATTORNEY GENERAL  LINDEMUTH said  she actually thinks  that ANCSA                                                               
runs contrary  to allowing  lands into  trusts. However,  she had                                                               
talked it  through with Interior  under the  prior administration                                                               
and they  didn't see split  estates as  a problem, because  it is                                                               
done in  the Lower 48.  But the Lower  48 doesn't have  ANCSA and                                                               
that  makes  it  completely  different.  The  Ninth  Circuit  has                                                               
authority on  the whole subsurface  estate and that is  a greater                                                               
right than the normal mineral  assignment or reservation than one                                                               
sees in the Lower 48.                                                                                                           
                                                                                                                                
In talking with regional corporations,  she didn't find a uniform                                                               
position on this issue, but most  of them also believe that it is                                                               
not  possible for  a  split estate  to be  taken  into trust.  If                                                               
something like  that were to  be proposed, probably  the regional                                                               
corporation  that  is  impacted   would  object  and  potentially                                                               
litigate. The  state would  weigh in  on that  issue in  favor of                                                               
resource development (and creating  a situation where some Indian                                                               
tribe who has  a surface estate could take more  off the resource                                                               
project  through a  tax or  some other  type of  fee and  that is                                                               
inconsistent  even with  7i sharing  that  results from  resource                                                               
development of subsurface assets).                                                                                              
                                                                                                                                
3:45:04 PM                                                                                                                    
ATTORNEY GENERAL LINDEMUTH  said this is a huge  legal issue that                                                               
remains, but  it may not arise  for many years. However,  she has                                                               
tried to  start the  discussion on  this issue,  and if  there is                                                               
consistent thought on  it, a federal regulation  could address it                                                               
without the need for litigation.                                                                                                
                                                                                                                                
SENATOR STEDMAN  said there is  concern throughout  the Southeast                                                               
region as  to how taking properties  off the tax rolls  will work                                                               
in cash economy communities. Her  synopsis noted a situation that                                                               
was  worked  out  between  the  City  of  Craig  and  the  tribal                                                               
association there.  Craig was the  first community to do  it, but                                                               
pretty much every community in  Southeast has tribal lands within                                                               
it and a  significant population of the community  are members of                                                               
those tribes. What has she seen in that arena?                                                                                  
                                                                                                                                
3:47:23 PM                                                                                                                    
ATTORNEY  GENERAL LINDEMUTH  responded  that issues  needs to  be                                                               
addressed and  is one of  those things that local  government can                                                               
address in  its objection. She  actually participated in  a panel                                                               
before the  Municipal League in  the fall  and one of  the things                                                               
she recommended then that is  consistent with what the Department                                                               
of Interior is recommending is  that tribes should approach local                                                               
governments   in  the   state  before   they  actually   file  an                                                               
application  and talk  through  their concerns.  And  if a  local                                                               
government hears  of a potential  application, it  should contact                                                               
the  Indian  tribe  before  it  is noticed  and  under  a  30-day                                                               
deadline. When a  parcel is slated to be taken  off the tax rolls                                                               
there can be  a payment in lieu of taxes  beforehand to the local                                                               
government.  The  benefit to  the  tribe  is that  the  municipal                                                               
government doesn't file an objection  on that lost revenue basis,                                                               
since the  payment in lieu  of taxes  addresses the heart  of the                                                               
potential objection.                                                                                                            
                                                                                                                                
In Craig, that particular parcel wasn't  on the tax rolls and the                                                               
City  of Craig  didn't  raise  it as  a  concern.  They filed  an                                                               
objection, but  it was overruled  by the Department  of Interior,                                                               
because it didn't have a legal  basis. It's just that they wanted                                                               
more time to figure out how this would impact them.                                                                             
                                                                                                                                
3:49:05 PM                                                                                                                    
SENATOR   STEDMAN    recalled   his   conversation    the   Craig                                                               
administrator about  the parcel not  being on the tax  rolls, but                                                               
Craig  had  helped a  tribal  association  make a  local  policy.                                                               
Because it would be  tough for the tribe to pay  taxes on a large                                                               
tract of  land in the  middle of  town, and the  community didn't                                                               
want  them to  lose it,  so they  worked with  the tribe.  All of                                                               
these instances are going to  be different in each community, but                                                               
that  is  the biggest  concern  he  has  heard  from all  of  his                                                               
communities on this particular issue.                                                                                           
                                                                                                                                
CHAIR GIESSEL  said lots of  folks were very concerned  the state                                                               
did not  contest this  case and  the reason it  comes to  mind is                                                               
because  the  AG  just  described   talking  with  the  different                                                               
departments  and the  governor  about whether  to  go forward  in                                                               
contesting the Akiachak  ruling. Her question is  as the attorney                                                               
general for the State of Alaska  who she is serving: the governor                                                               
or the people of Alaska?                                                                                                        
                                                                                                                                
ATTORNEY  GENERAL LINDEMUTH  replied that  her answer  is "both,"                                                               
and it is certainly  the people of Alaska at the  end of the day,                                                               
but the highest elected official for  the people of Alaska is the                                                               
governor. Between the  two of them they discuss  policy, which is                                                               
what an  elected official  should do on  a day-to-day  basis. For                                                               
some cases, like rate cases,  she represents the people of Alaska                                                               
by  statute,  and  the  governor   isn't  involved  at  all.  She                                                               
explained  how she  represents different  interests by  assigning                                                               
assistants to work with then.                                                                                                   
                                                                                                                                
CHAIR GIESSEL pointed  out that there are  differences between an                                                               
appointed attorney general and an elected one.                                                                                  
                                                                                                                                
3:54:23 PM                                                                                                                    
ATTORNEY GENERAL  LINDEMUTH said  she brought the  comments filed                                                               
for the Village  of Craig application and a  two-page overview of                                                               
lands into  trust, the  document she is  using with  their client                                                               
departments and  folks to solicit  comments on any impact  on any                                                               
particular application.  She thought it  would be useful  for the                                                               
committee to see, both for purposes  of a quick legal analysis of                                                               
what lands into trust is and  the procedure the state is using to                                                               
make sure  of full input on  any comment given on  any particular                                                               
application.                                                                                                                    
                                                                                                                                
3:55:38 PM                                                                                                                    
She said part of her charge  with the governor and the lieutenant                                                               
governor was to do outreach  to citizens of Alaska, to understand                                                               
concerns,  to  help inform  any  comments,  but also  to  educate                                                               
folks. She  has met with  the Municipal League, presented  to the                                                               
Mining Association  and the Alaska  Federation of  Natives (AFN),                                                               
and will present to the  Resource Development Council (RDC) later                                                               
in  the year  on this  and other  federal issues  that are  being                                                               
faced right now.  Lands into trust is a  controversial issue even                                                               
for tribes and  she didn't see a huge number  of them running out                                                               
to do it.                                                                                                                       
                                                                                                                                
ATTORNEY GENERAL LINDEMUTH  said her take on this  stems from the                                                               
many  court   decisions  over  the   need  for  tribes   to  have                                                               
jurisdiction  over certain  matters,  like  child protection  and                                                               
civil diversion agreements that would  actually need a land base.                                                               
As attorney general,  she wants to talk with tribes  about how to                                                               
be a more proactive player  in public safety in their communities                                                               
by having civil remedies for low level misdemeanor crimes.                                                                      
                                                                                                                                
3:59:02 PM                                                                                                                    
CHAIR GIESSEL said lands into  trust brings up another issue, the                                                               
state's  loss of  access  to resources  through  RS2477s and  the                                                               
Klutina Road, and she wanted an update on it.                                                                                   
                                                                                                                                
ATTORNEY   GENERAL  LINDEMUTH   replied  there   has  been   some                                                               
misinformation  and fear  over  the  fact that  the  state is  in                                                               
settlement  discussions, but  there  is  currently no  settlement                                                               
with Ahtna on  those issues. To put this in  context, on February                                                               
15,  Mr.  Sullivan  covered the  Chicken/Ahtna,  an  RS2477  case                                                               
against  the federal  government  that the  state  had chosen  to                                                               
litigate. Ahtna  initiated the  claim nine  years ago  saying the                                                               
state couldn't  access a 24-mile  road between Copper  Center and                                                               
the Klutina  Road. They  are almost $700,000  into that  case and                                                               
were looking at going to trial at the end of April.                                                                             
                                                                                                                                
Often  what   happens  as  the  trial   approaches,  parties  ask                                                               
themselves  the risks  and benefits  of going  to trial  and that                                                               
often  leads to  settlement  talks that  work  for both  parties.                                                               
That's what happened.  At the end of January they  had a full day                                                               
with a  professional mediator  and even  though it  actually went                                                               
until 10 p.m.,  it still wasn't worked out. So  the parties spent                                                               
the next two  weeks in discussions and came up  against the court                                                               
deadline for the case. She decided  to not release the court date                                                               
without  a  framework  of  decisions  points  for  getting  to  a                                                               
settlement.  That  was reached  last  week,  which is  when  they                                                               
jointly  asked the  court to  take it  off of  the calendar.  The                                                               
parties have given themselves 90  days to work through the issues                                                               
and  to get  to a  settlement document.  If they  don't get  to a                                                               
settlement the  issues still  need to be  litigated so  she can't                                                               
say much about it.                                                                                                              
                                                                                                                                
ATTORNEY  GENERAL  LINDEMUTH said  two  years  ago they  lost  an                                                               
important  summary  judgement  motion addressing  scope  of  use.                                                               
Ahtna had  challenged the  existence of the  RS2477, but  it also                                                               
said even  if the state  has one, it  can't be used  for anything                                                               
but to  drive down  the road  from point  A to  point B.  So, the                                                               
secondary issue  is what you can  do on an RS2477.  Judge Guidi's                                                               
order is  still standing  on that  case, and if  this were  to go                                                               
through a six week trial they  would still be facing an appeal to                                                               
the Alaska Supreme Court.                                                                                                       
                                                                                                                                
4:03:55 PM                                                                                                                    
One of the things they talk  about in deciding whether to look at                                                               
a  settlement  is if  it  is  the  best  vehicle to  challenge  a                                                               
particular issue.  So, if the state  loses this case in  front of                                                               
the Alaska Supreme  Court, it means that it has  lost the ability                                                               
to  access  all  RS2477s  for   fishing,  hunting,  parking,  and                                                               
everything else,  and she wants  to preserve the most  access and                                                               
the most important rights that she can in a possible compromise.                                                                
                                                                                                                                
4:04:46 PM                                                                                                                    
ATTORNEY  GENERAL  LINDEMUTH   said  this  particular  litigation                                                               
involves  the   Department  of   Natural  Resources   (DNR),  the                                                               
Department of  Transportation and Public Facilities  (DOTPF), the                                                               
Alaska Department  of Fish and  Game (ADF&G), and  the Department                                                               
of Law  (DOL). So, it  is complicated  to get client  buy-in. She                                                               
would be happy to talk  through the settlement with the committee                                                               
if it actually happens.                                                                                                         
                                                                                                                                
4:06:09 PM                                                                                                                    
CHAIR GIESSEL  said the  concern is that  once the  settlement is                                                               
reached it is too late for  public comment, and they are the ones                                                               
who will lose access to these resources.                                                                                        
                                                                                                                                
ATTORNEY GENERAL  LINDEMUTH said she  didn't know that  it should                                                               
be framed as losing access  until folks see the final settlement.                                                               
The  required  public notices  and  associated  comments will  be                                                               
followed through  the settlement process. She  promised to comply                                                               
with statutory and constitutional law on these issues.                                                                          
                                                                                                                                
4:07:30 PM                                                                                                                    
KENT  SULLIVAN,  Assistant  Attorney General,  Natural  Resources                                                               
Section,  Department of  Law, Juneau,  Alaska, said  an important                                                               
concern  at  the  time  of statehood  was  whether  Alaska  would                                                               
possess  the land  and resources  necessary to  avoid becoming  a                                                               
ward of  the federal government.  Consequently, the state  gave a                                                               
high priority  to ensuring that  it received what it  was legally                                                               
entitled to  from the federal  government pursuant  to provisions                                                               
in  the  Alaska  Statehood  Act,  the  Alaska  Constitution,  the                                                               
negotiated and bargained for process  resulting in statehood, and                                                               
the  Alaska National  Interest Lands  Conservation Act  (ANILCA).                                                               
However, despite its promises, the  federal government still owns                                                               
over 229  million acres  of land in  Alaska and  occupies roughly                                                               
over 60 percent of the state.                                                                                                   
                                                                                                                                
4:08:56 PM                                                                                                                    
Of concern are the on-going  disputes with the federal government                                                               
involving  the Arctic  National  Wildlife Refuge  (ANWR). A  high                                                               
priority  for the  Governor  and DNR  Commissioner  Mack is  ANWR                                                               
boundaries and what  the state is entitled to select  that is not                                                               
part  of ANWR.  This is  what the  Commissioner and  the Attorney                                                               
General addressed as recently as last week in Washington, D.C.                                                                  
                                                                                                                                
The  state is  seeking to  ensure that  it is  allowed to  select                                                               
lands that it is legally  entitled to from statehood. The problem                                                               
is that  the state has  determined that  the boundary of  ANWR is                                                               
defined by  the ordinary  high water mark  of the  Canning River.                                                               
There is no  dispute on what creates the legal  boundary of ANWR;                                                               
both  the  feds  and  the  state  agree  that  it's  a  PLO  that                                                               
originally withdrew the  area prior to it becoming  a refuge that                                                               
basically said  it's the western  bank of the Canning  River. The                                                               
dispute is  over where  that is exactly.  The state  is confident                                                               
about  where that  line should  be drawn,  but due  to a  federal                                                               
surveying  discrepancy,  the  federal government  defines  it  as                                                               
being part of the Staines  River, another tributary entirely that                                                               
is actually located many miles to the west and over tundra.                                                                     
                                                                                                                                
SENATOR  VON IMHOF  said she  is  very familiar  with that  area,                                                               
because  she has  flown it  in a  super cub  and it  is a  couple                                                               
hundred miles.                                                                                                                  
                                                                                                                                
4:12:04 PM                                                                                                                    
MR.  SULLIVAN   presented  a  map   showing  the   disputed  ANWR                                                               
boundaries that  occupied about 20,000  acres. The  Staines River                                                               
doesn't  have  a  discernible  river   channel  and  the  federal                                                               
government claims that  it is actually part of  the Canning River                                                               
and therefore, they are using  the boundary of the Staines River,                                                               
but  it is  a  much shorter  body  of water  that  dries up  into                                                               
virtually  nothing. So,  in order  to make  the federal  proposal                                                               
work, that  boundary must go  across open tundra for  many miles,                                                               
which is difficult to do under  the PLO definition of going along                                                               
a bank of a river.                                                                                                              
                                                                                                                                
He said the  state is arguing that any  competent surveyor should                                                               
have been  able to determine  that boundary easily on  the ground                                                               
in the  1960s and has filed  two cases before the  Interior Board                                                               
of Land  Appeals (IBLA)  that are ongoing.  The state  is arguing                                                               
that the  area in yellow is  outside the boundaries of  ANWR, and                                                               
therefore the  state ought to  be able  to select those  lands as                                                               
part of the Statehood land  selection process. Once the lands are                                                               
in  the state's  hands, it  can do  what it  sees fit  with them.                                                               
Hopefully, the  issues will  be resolved in  the not  too distant                                                               
future.                                                                                                                         
                                                                                                                                
4:14:55 PM                                                                                                                    
CHAIR GIESSEL asked if he knew  where the single well was drilled                                                               
in the 1002 area.                                                                                                               
                                                                                                                                
MR. SULLIVAN said he didn't know exactly.                                                                                       
                                                                                                                                
4:15:32 PM                                                                                                                    
MR. SULLIVAN  said the  state is addressing  one more  issue with                                                               
regard to ANWR and that is  the 1002 area. Section 1002 of ANILCA                                                               
set aside the Coastal Plain  of ANWR for further investigation of                                                               
its oil and gas potential.   Back in the mid-1980s the Department                                                               
of Interior and  others investigated the potential  of that area,                                                               
but  ANILCA provides  that  oil and  gas  production can't  occur                                                               
until   approved  by   an   Act  of   Congress.   Based  on   the                                                               
investigations   that  occurred,   the  Department   of  Interior                                                               
recommended that  the 1002 area  be opened to production,  but up                                                               
to now,  Congress has  failed to pass  a bill  implementing those                                                               
recommendations. So,  Senators Murkowski and  Sullivan introduced                                                               
SB 49,  the Oil and Gas  Production Act, on January  5, 2017 that                                                               
would allow exploration  and production in a portion  of the 1002                                                               
area, and the  administration continues to be  very supportive of                                                               
those efforts.                                                                                                                  
                                                                                                                                
4:17:12 PM                                                                                                                    
SENATOR  HUGHES  said she  hoped  that  topic  came up  in  their                                                               
meeting with the President today.                                                                                               
                                                                                                                                
MR.  SULLIVAN said  he would  follow up  on that  as everyone  is                                                               
anxious about it.                                                                                                               
                                                                                                                                
4:17:37 PM                                                                                                                    
ATTORNEY  GENERAL  LINDEMUTH said  she  also  was in  Washington,                                                               
D.C.,  last  week  for  a  different  reason  and  met  with  the                                                               
congressional delegation. She gave each  of them the same federal                                                               
issues  list that  they have  and  encouraged them  to watch  the                                                               
hearings  on them,  because  they frame  the  discussion on  many                                                               
other important points that the  Walker administration is pushing                                                               
with the Trump  administration. One of them is the  Waters of the                                                               
U.S. order that is being  reconsidered. Another is the Endangered                                                               
Species Act (ESA) cases as follows:                                                                                             
                                                                                                                                
1. The Polar bear critical habitat  case was filed in 2013. Polar                                                               
bears were a  designated an endangered species  and their habitat                                                               
covers  187,000  acres  on  the North  Slope.  It's  the  state's                                                               
position that  that is  far too  big of  a designation  and isn't                                                               
supported by  science. That was  challenged in Ninth  Circuit and                                                               
the state  lost. Working with  Arctic Slope  Regional Corporation                                                               
(ASRC) and the  other Native Corporations and  tribes involved in                                                               
that  litigation they  filed  a petition  for  certiorari to  the                                                               
Supreme  Court  and  that  is   pending.  She  thinks  the  Trump                                                               
administration is trying  to decide what position  they are going                                                               
to take on appeal.                                                                                                              
                                                                                                                                
4:20:26 PM                                                                                                                    
2.  The  critical habitat  case  of  Alabama v.  National  Marine                                                               
Fisheries Service (NMFS): In that  case Alaska joined Alabama and                                                               
18  other states  in filing  a lawsuit  challenging the  new rule                                                               
that defined  critical habitat under  the ESA. As with  the Polar                                                               
bear designation, it  was a huge designation in  Alaska. Then the                                                               
federal  government changed  the definition  of critical  habitat                                                               
that would grant  them greater power to designate  even more area                                                               
as critical habitat.  That is something many  other states didn't                                                               
take kindly  to.   It is  a multi-state  direct action  effort in                                                               
which Alaska is a plaintiff.                                                                                                    
                                                                                                                                
One of the main things achieved  by filing in Alabama is that the                                                               
Ninth  Circuit won't  review any  particular decision  that comes                                                               
out of the District Court Case;  it will be the Eleventh Circuit.                                                               
That  case has  been stayed  by an  agreement of  the parties  to                                                               
allow the new  administration to get up to speed.  She is hopeful                                                               
for a similar result to the Waters of the U.S. ruling last week.                                                                
                                                                                                                                
4:23:02 PM                                                                                                                    
3. The last two cases are  similar: the bearded seal case and the                                                               
ringed seal case.  In 2012 the NMFS listed  the Beringia distinct                                                               
population segment of the bearded  seals as threatened. They also                                                               
listed  four  subspecies of  the  ringed  seal as  threatened  or                                                               
endangered.   The state is  working with  the Alaska Oil  and Gas                                                               
Association and the North Slope  Borough and has filed complaints                                                               
on both  issues. In  both cases,  the state  won at  the district                                                               
court level.  The bearded seal  case was overturned at  the Ninth                                                               
Circuit and  the petition for  rehearing was filed on  January 9.                                                               
The ringed  seal case is still  at the briefing stage  before the                                                               
Ninth  Circuit, but  she doesn't  hold out  much hope  given what                                                               
happened with the bearded seal case.                                                                                            
                                                                                                                                
4:24:20 PM                                                                                                                    
The  problem with  both  cases, as  the state  sees  it, is  that                                                               
neither  of  them is  a  threatened  population today.  What  the                                                               
federal government is  trying to do is  use the ESA as  a tool to                                                               
address climate  change, but it  is not designed to  address that                                                               
issue.  Federal scientists  did climate  model projections  going                                                               
out 100 years  of what will happen to these  populations. That is                                                               
not  good science.  Nobody would  have  gotten populations  right                                                               
predicting today's  numbers 100 years  ago, and they  are hopeful                                                               
that the new administration will  see more eye-to-eye with Alaska                                                               
on this issue.                                                                                                                  
                                                                                                                                
ATTORNEY GENERAL LINDEMUTH offered  to address any other concerns                                                               
the committee has.                                                                                                              
                                                                                                                                
4:26:31 PM                                                                                                                    
CHAIR GIESSEL  adjourned the  Senate Resources  Committee meeting                                                               
at 4:26 p.m.                                                                                                                    
                                                                                                                                
                                                                                                                                

Document Name Date/Time Subjects
Agenda 3-8-17.pdf SRES 3/8/2017 3:30:00 PM
1. Federal Issues as of January 23 2017.pdf SRES 3/8/2017 3:30:00 PM
Fed Overreach
2. FederalLawLitigationReport2017 012317.pdf SRES 3/8/2017 3:30:00 PM
Federal Issues
3. Klutina Road-Partial Court Summary - 5 - 11 - 16.pdf SRES 3/8/2017 3:30:00 PM
Land Issues
4. AK Superior Court Summary RE Right of Way- 1 - 17 - 12.pdf SRES 3/8/2017 3:30:00 PM
Land Issues
5. Vacate Order on Klutina Road- 2 - 24 - 17.pdf SRES 3/8/2017 3:30:00 PM
Land Issues
6. State of Alaska comments on Craig Tribal Association Trust.pdf SRES 3/8/2017 3:30:00 PM
Federal Lands
7. Overview of Trust Lands in Alaska.pdf SRES 3/8/2017 3:30:00 PM
Federal Lands