Legislature(2017 - 2018)BUTROVICH 205

02/07/2018 03:30 PM RESOURCES

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03:29:52 PM Start
03:30:09 PM Overview: Alaska's Federal Issues
04:35:21 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ Overview: Alaska's Federal Issues TELECONFERENCED
- Department of Law
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+ Bills Previously Heard/Scheduled TELECONFERENCED
                    ALASKA STATE LEGISLATURE                                                                                  
              SENATE RESOURCES STANDING COMMITTEE                                                                             
                        February 7, 2018                                                                                        
                           3:29 p.m.                                                                                            
MEMBERS PRESENT                                                                                                               
Senator Cathy Giessel, Chair                                                                                                    
Senator John Coghill, Vice Chair                                                                                                
Senator Natasha von Imhof                                                                                                       
Senator Bert Stedman                                                                                                            
Senator Kevin Meyer                                                                                                             
Senator Bill Wielechowski                                                                                                       
Senator Click Bishop                                                                                                            
MEMBERS ABSENT                                                                                                                
All members present                                                                                                             
COMMITTEE CALENDAR                                                                                                            
OVERVIEW: ALASKA'S FEDERAL ISSUES                                                                                               
     - HEARD                                                                                                                    
PREVIOUS COMMITTEE ACTION                                                                                                     
No previous action to record                                                                                                    
WITNESS REGISTER                                                                                                              
JAHNA LINDEMUTH, Attorney General                                                                                               
Alaska Department of Law                                                                                                        
Juneau, Alaska                                                                                                                  
POSITION STATEMENT: Briefed the committee on Alaska's federal                                                                 
case issues.                                                                                                                    
JESSIE ALLOWAY, Assistant Attorney General                                                                                      
Alaska Department of Law                                                                                                        
Juneau, Alaska                                                                                                                  
POSITION STATEMENT: Briefed the committee on Alaska's federal                                                                 
case issues.                                                                                                                    
SETH BEAUSANG, Chief Assistant Attorney General                                                                                 
Alaska Department of Law                                                                                                        
Juneau, Alaska                                                                                                                  
POSITION  STATEMENT: Briefed  the committee  on Alaska's  federal                                                             
case issues.                                                                                                                    
ACTION NARRATIVE                                                                                                              
3:29:52 PM                                                                                                                    
CHAIR  CATHY   GIESSEL  called  the  Senate   Resources  Standing                                                             
Committee meeting  to order at 3:29  p.m. Present at the  call to                                                               
order  were Senators  Stedman,  Meyer,  Wielechowski, Von  Imhof,                                                               
Coghill, Bishop, and Chair Giessel.                                                                                             
^Overview: Alaska's Federal Issues                                                                                              
                Overview: Alaska's Federal Issues                                                                           
3:30:09 PM                                                                                                                    
CHAIR   GIESSEL  announced   the  presentation   by  the   Alaska                                                               
Department  of  Law regarding  federal  issues.  Alaska has  more                                                               
federal acreage,  the largest refuge  and national  park acreage,                                                               
and more  coastline than all the  rest of the United  States. Our                                                               
Constitution  says  we  are  to develop  our  resources  for  the                                                               
maximum benefit of the people and  to manage our fish and game to                                                               
a sustained yield. However, Alaska  has a checkerboard of federal                                                               
management   practices  and   policies  that   often  bring   the                                                               
Constitutional mandates in conflict.                                                                                            
She said this is the  fourth consecutive year that the Department                                                               
of  Law (DOL)  has  participated  in such  an  update on  federal                                                               
issues.  Attorney  General Lindemuth  is  joined  with her  Chief                                                               
Assistant   Attorney  General,   Seth  Beausang,   and  Assistant                                                               
Attorney General,  Jessie Alloway. She stated  that litigation is                                                               
a last  resort, and our  Attorney General  is no stranger  to the                                                               
court room in these arguments.                                                                                                  
3:31:24 PM                                                                                                                    
JAHNA  LINDEMUTH,  Attorney  General, Alaska  Department  of  Law                                                               
(DOL),  Juneau, Alaska,  remarked that  she started  this job  18                                                               
months  ago tomorrow,  not  that she's  counting.  When she  took                                                               
office, she  was briefed on all  the big issues that  were facing                                                               
Alaska and  many of them  were federal  issues. So, she  put them                                                               
all,  30 different  issues, in  one place  making them  easier to                                                               
track, and they  get updated quarterly. She used  this format for                                                               
the committee last year and she would do that again today.                                                                      
She  said Seth  Beausang just  took  over the  leadership of  the                                                               
DOL's  Natural  Resources  Section.  That  section  is  not  only                                                               
responsible  for providing  advice to  the Department  of Natural                                                               
Resources (DNR)  but also to  Alaska Department of Fish  and Game                                                               
(ADF&G).  It is  the most  important and  largest section  in the                                                               
3:33:54 PM                                                                                                                    
ATTORNEY GENERAL LINDEMUTH said  for last year's presentation [to                                                               
the  Senate Resources  Committee]  the  Obama Administration  was                                                               
just  ending, and  the  state was  in conflict  with  it on  many                                                               
issues,  but  the  theme  they   will  hear  today  is  that  the                                                               
department  is working  together with  the federal  government on                                                               
many   issues  and   working   towards   resolution  outside   of                                                               
litigation,  through the  Congressional Review  Act (CRA)  or new                                                               
rule-making,  and she  is  excited to  report  progress is  being                                                               
The State  filed its brief asking  for cert on the  Sturgeon case                                                               
to  the Supreme  Court on  Monday. Mr.  Sturgeon was  operating a                                                               
hovercraft on the Nation River  inside a conservation system unit                                                               
(CSU) and  the federal  government said he  couldn't do  that. He                                                               
challenged  it and  Alaska has  participated  in that  litigation                                                               
from the very beginning.                                                                                                        
They had  an adverse ruling  at the Ninth Circuit  District Court                                                               
that   said   Alaska   National   Interest   Lands   Conservation                                                               
Act (ANILCA)  allowed the  federal regulations  under the  103(c)                                                               
interpretation. The  U.S. Supreme Court reversed  that decision a                                                               
year ago saying ANILCA 103(c)  does not allow the U.S. Department                                                               
of  Interior  to regulate  state  and  private lands  within  the                                                               
conservation system  units, but  the reversal  did not  reach all                                                               
the  other  arguments  the  federal  government  was  making  for                                                               
authority to  regulate. Those issues  were remanded to  the ninth                                                               
circuit. Argument  was held last  October, and the  ninth circuit                                                               
issued  an  adverse  decision,  again, finding  that  as  far  as                                                               
navigable  rivers  are  concerned,  the  federal  government  has                                                               
authority to regulate under the Reserved Water Rights Doctrine.                                                                 
The state's position  is that the Reserved  Water Rights Doctrine                                                               
is a very  limited doctrine that is intended to  give the federal                                                               
government the  necessary amount of  water needed out of  a river                                                               
for any federal lands, but it is  not a doctrine that is meant to                                                               
give  full regulatory  authority to  the federal  government. So,                                                               
she  is  again asking  the  U.S.  Supreme  Court to  review  that                                                               
decision and to reverse it. She  is working very closely with Mr.                                                               
Sturgeon and his  council in pushing these  arguments forward and                                                               
is hopeful that the U.S. Supreme Court will take the case.                                                                      
3:36:05 PM                                                                                                                    
SENATOR COGHILL said he struggles  with this because it should be                                                               
a state  issue. However, Mr. Sturgeon  lead the way. He  asked if                                                               
there is potential to have a  state violation before the court on                                                               
this issue, because of the ninth circuit ruling.                                                                                
ATTORNEY GENERAL LINDEMUTH replied that  at one point, Alaska did                                                               
have  its own  challenge, and  the ninth  circuit ruled  that the                                                               
state didn't have standing to  bring it. The state disagreed, but                                                               
that was  before she took office,  and they felt the  best way to                                                               
support  Mr. Sturgeon,  who was  already on  appeal, was  to stay                                                               
within Mr. Sturgeon's  case and participate as  amicus. The state                                                               
moved to intervene in that case  as an intervener party, and that                                                               
was denied by  the ninth circuit. However, she  is confident that                                                               
the U.S. Supreme Court will hear Alaska's arguments on that.                                                                    
3:37:16 PM                                                                                                                    
CHAIR GIESSEL asked what the  difference is between being a party                                                               
to a case and just being an amicus.                                                                                             
3:37:26 PM                                                                                                                    
ATTORNEY GENERAL LINDEMUTH  explained that an amicus  is a friend                                                               
of  the  court and  not  technically  a  party and  doesn't  have                                                               
standing to  weigh in.  To be  a party, one  must have  a certain                                                               
level of  interest in the  case, in other  words a party  will be                                                               
impacted by the  court's ruling. Even though  the state disagrees                                                               
with  the  ninth  circuit  about standing,  she  feels  that  the                                                               
state's issues  are being fairly represented  by participating as                                                               
an amicus.                                                                                                                      
3:38:09 PM                                                                                                                    
JESSIE ALLOWAY, Assistant Attorney  General, Alaska Department of                                                               
Law,  Juneau,  Alaska, said  she  would  talk about  navigability                                                               
cases  in which  they  continue making  progress  on getting  the                                                               
federal  government to  recognize  the state's  ownership in  its                                                               
submerged lands.  When she reported  to the committee  last year,                                                               
two cases  were on appeal.  The first  one was the  Mosquito Fork                                                               
case and  that was where Judge  Gleason had issued an  order that                                                               
the  U.S.  had acted  in  bad  faith  during the  litigation  and                                                               
awarded the state nearly $600,000 in attorney's fees and costs.                                                                 
The second case was the Stikine  Matter that related to the legal                                                               
issue they argued in the  Mosquito Fork case. Judge Beistline had                                                               
awarded  the  state  costs,  although  a  lower  amount,  and  no                                                               
attorney's fees.  Both judges relied  on similar theories  on the                                                               
law. Since she last spoke  with the committee, the U.S. dismissed                                                               
its appeals  to the ninth  circuit and  has paid the  state those                                                               
awards.  The Mosquito  Fork award  was  paid in  October and  the                                                               
Stikine amount was paid in the spring. Those cases are now done.                                                                
She  said she  didn't have  anything to  report on  the Kuskokwim                                                               
3:39:28 PM                                                                                                                    
SENATOR STEDMAN  thanked the DOL  for standing up to  the federal                                                               
government  and asked  her for  a  brief rundown  of the  Stikine                                                               
River  matter.   The  new  administration   appears  to   have  a                                                               
directional  change  from the  state  having  to file  litigation                                                               
versus getting a quiet title settlement to some of its waters.                                                                  
3:40:12 PM                                                                                                                    
MS. ALLOWAY explained that the  Stikine River matter was a little                                                               
bit  different than  the  Mosquito Fork  matter  that dealt  with                                                               
whether  the river  was,  in  fact, navigable.  At  issue in  the                                                               
Stikine was  whether the  U.S. withdrew  the submerged  lands for                                                               
its  own  purpose  pre-statehood,  which  would  mean  the  state                                                               
wouldn't get it  at statehood. She explained that  in the Glacier                                                               
Bay case the  U.S. had previously disclaimed its  interest to the                                                               
tidal waters  within the  Tongass National  Forest, but  they had                                                               
yet  to  do  that  for  the non-tidal  portions  of  the  forest.                                                               
Initially DNR  filed an application  for a  recordable disclaimer                                                               
of interest,  a process that is  meant to reduce costs  and allow                                                               
the state  to clear its  title without pursuing  litigation. That                                                               
application was  pending before  BLM for  five years  before they                                                               
initially issued a decision to  grant the application. The Forest                                                               
Service  objected  and   then  BLM  came  back   and  denied  the                                                               
application. So,  the state appealed  that to the  Interior Board                                                               
of Land  Appeals (IBLA), the  administrative agency  that handles                                                               
those appeals, and  the state prevailed. The  Interior Board told                                                               
BLM they couldn't just cite  a Forest Service objection; they had                                                               
to tell  the state  why it  was wrong. So,  it was  remanded back                                                               
down  to BLM  and  sat there  while the  Mosquito  Fork case  was                                                               
litigated. Nothing happened.                                                                                                    
The state  got the  disclaimer of interest  in the  Mosquito Fork                                                               
case and  then came back  to the Stikine  and there was  still no                                                               
decision. Her reasoning  was the U.S. has only  two mechanisms to                                                               
disclaim their  interest. Either  they can do  it in  response to                                                               
litigation or  they can do  it through the  recordable disclaimer                                                               
of interest (RDI) process. So, she  filed a quiet title action in                                                               
the federal court  and the U.S. disclaimed its  interest within a                                                               
couple of months never actually filing an answer.                                                                               
A  couple  of  things  were   going  on  there  illustrating  the                                                               
difficulty DNR  has in getting BLM  to take action. The  state is                                                               
paying BLM to process its  RDI applications. So, DNR was spending                                                               
a lot  of money and not  getting any action. In  filing for quite                                                               
title, the  DOL actually initiated court-imposed  deadlines. When                                                               
that was in place, BLM  actually recognized the state's ownership                                                               
and disclaimed interest.                                                                                                        
3:43:06 PM                                                                                                                    
SENATOR STEDMAN asked  her to explain in layman's  terms what the                                                               
state actually has title to  in the Stikine River system, because                                                               
the Stikine is a big trade corridor.                                                                                            
MS. ALLOWAY explained  that right now the state has  title to the                                                               
entire Stikine from  the ordinary highwater mark  to the ordinary                                                               
highwater mark.  So, everything  under the  water of  the Stikine                                                               
River now belongs  to Alaska except for a small  portion near the                                                               
border where there is a  boundary issue. In recent litigation the                                                               
State of  Alaska got title  to the non-tidal  portion. Previously                                                               
in other  litigation the  federal government  recognized Alaska's                                                               
ownership in  the tidal  portion, so whatever  is subject  to the                                                               
ebb and flow of the tide.                                                                                                       
3:44:14 PM                                                                                                                    
SENATOR STEDMAN asked Ms. Alloway  to address the interest in how                                                               
upland  zoning   is  applicable  to  tide   lands  and  potential                                                               
submerged  lands.  In the  Stikine  River  area there  is  always                                                               
concern about  the state  citizens' use  of the  tidelands versus                                                               
the Forest  Service in  how they are  managing the  timbered area                                                               
above high tide line.                                                                                                           
3:45:21 PM                                                                                                                    
MS.  ALLOWAY concurred  that the  Stikine River  is an  important                                                               
issue and  elaborated that they  think the federal  government is                                                               
essentially  recognizing  that  the Tongass  withdrawal  was  not                                                               
sufficient to defeat the state's  interest. So, DNR's plan moving                                                               
forward  is  to try  to  seek  additional disclaimers  for  other                                                               
rivers within the Tongass National Forest.                                                                                      
She said the  next important navigability case that  she wants to                                                               
talk about is the Knik River.  This became an issue in 2005, when                                                               
BLM  issued a  decision to  convey certain  lands to  the Eklutna                                                               
Native Corporation  and those lands  were within the  Knik Public                                                               
Use  area.  DNR  was  concerned about  preserving  public  access                                                               
through the Eklutna lands to the  Knik Public Use area. That case                                                               
has  two  parts:  the  easement   part  where  public  access  is                                                               
preserved over the road, and  two, whether the federal government                                                               
was actually  telling Eklutna they were  conveying them submerged                                                               
lands below the Knik River,  because obviously the state believes                                                               
the Knik River is navigable.                                                                                                    
Andrew  Naylor, DOL's  Natural Resources  Attorney, appealed  the                                                               
easement issue  to the IBLA  and an  agreement was worked  out to                                                               
preserve the public's access through  their conveyance area. That                                                               
agreement was  then presented to  BLM and a final  settlement has                                                               
been reached.                                                                                                                   
MS. ALLOWAY  said she handled  the navigability part and  DNR did                                                               
additional field  work using the  same experts from  the Mosquito                                                               
Fork case,  and she then wrote  to BLM asking them  to reconsider                                                               
since the state had additional  evidence that she would give them                                                               
now. She  didn't get a  response back until the  Attorney General                                                               
followed  up. They  weren't  able to  reach  an agreement  simply                                                               
because BLM wanted  the State of Alaska to file  an RDI, and that                                                               
would require DNR to  pay for it. Not being able  to force BLM to                                                               
take action  within a  certain timeframe, the  DNR decided  if it                                                               
was  going to  spend money  to spend  it on  litigation to  get a                                                               
quick answer  or get the answers  they were talking about  in the                                                               
navigability context.  DNR filed  a quiet  title action  in April                                                               
2017 and  received a  disclaimer of  interest in  September 2017.                                                               
So, the Knik  case has also been resolved and  they are beginning                                                               
to  see some  movement on  the federal  government's part  to act                                                               
more quickly on issues of navigability.                                                                                         
3:48:37 PM                                                                                                                    
SENATOR BISHOP asked the definition for "navigable waterway."                                                                   
MS.  ALLOWAY  answered  that navigable  waterway  is  defined  as                                                               
whether the river could be used  as a highway for commerce in its                                                               
natural  and  ordinary condition  at  the  time of  statehood  by                                                               
relevant water  craft (a boat  of the time carrying  a commercial                                                               
load of about 1,000 pounds).                                                                                                    
3:49:48 PM                                                                                                                    
ATTORNEY GENERAL LINDEMUTH  turned to the Izembek  King Cove road                                                               
issue  saying the  Department of  Interior  (DOI) just  announced                                                               
that they  reached an  agreement with King  Cove to  provide that                                                               
road  through the  Izembek.  The agreement  is  based on  certain                                                               
provisions of ANILCA  that the parties all agree allow  a road to                                                               
be built through Izembek Refuge. The state is pleased.                                                                          
She  said this  issue started  30 years  ago and  the history  is                                                               
tortuous.  More recently,  Congress had  already approved  a land                                                               
exchange when Department of Interior  Secretary Jewell denied the                                                               
application for the  land exchange. Under that  land exchange the                                                               
state would  have to provide  a number  of acres in  exchange for                                                               
the federal  land that would  be used  to create the  road. Under                                                               
the  current agreement,  the state  doesn't have  to give  up any                                                               
land, so it is  not a land exchange. In summary,  a road is being                                                               
created through  the refuge  based on  provisions in  ANILCA that                                                               
allow that kind of access when appropriate.                                                                                     
The most  recent update on  that is that  environmentalist groups                                                               
including  Trustees of  Alaska  filed suit  on  that decision  on                                                               
January 31.  The federal  government has 60  days to  answer. The                                                               
state will  follow that to see  what role it should  play in that                                                               
3:52:19 PM                                                                                                                    
MS. ALLOWAY said she has  been handed two R.S. 2477 rights-of-way                                                               
cases: the  Klutina Lake Road  matter and the Fortymile  case for                                                               
which  she has  two "very  capable" trial  teams. In  the federal                                                               
litigation, the  state is  seeking two  systems of  RS-2477s that                                                               
originate  in  Chicken  and  go north.  One  provides  access  to                                                               
Hutchinson  Creek  and  the other  provides  access  to  Franklin                                                               
Creek. The  intent of  this lawsuit is  to set  precedent against                                                               
the federal  government and  try to  establish RS-2477s  in CSUs.                                                               
The problem  with that is  there are two Native  allotments north                                                               
of Chicken  that the  RS-2477s go through.  When the  lawsuit was                                                               
filed, they thought the case law  was pretty clear that one could                                                               
file  a  quiet title  action  against  the Native  allotments  to                                                               
confirm the  RS-2477s. The  ninth circuit  disagreed, but  it did                                                               
say if  the state  really wants  these trails,  it could  seek to                                                               
condemn  them against  the Native  allottees. That  is why  their                                                               
spreadsheet has two different proceedings.                                                                                      
She said they are currently in  the condemnation part of the case                                                               
trying to confirm the RS-2477s  through the two Native allottees.                                                               
They anticipate that process will be  over by the end of the year                                                               
and once  that case is done,  they will proceed with  the rest of                                                               
the case against the federal government to confirm the RS-2477s.                                                                
3:54:25 PM                                                                                                                    
SETH   BEAUSANG,  Chief   Assistant   Attorney  General,   Alaska                                                               
Department  of Law,  Juneau,  Alaska, said  he  would talk  first                                                               
about the  roadless rule  litigation that also  has quite  a long                                                               
history.  The first  time the  state  sued it  was successful  in                                                               
effectuating a settlement that resulted  in a temporary exemption                                                               
of  the Tongass  National Forest  from the  roadless rule  with a                                                               
commitment  to permanently  exempt  it.  Unfortunately, that  was                                                               
challenged by  environmental groups  and ultimately in  2014, the                                                               
ninth  circuit  reversed that  rule  and  found that  the  Forest                                                               
Service didn't provide  a reasoned explanation for  its change in                                                               
position. The roadless rule is now  back in effect, but the state                                                               
challenged it again  in 2011. It took a while  to reach the point                                                               
where  the district  judge made  a decision  and there  were some                                                               
appeals on whether  it was time-barred or not, but  the state was                                                               
successful in keeping that litigation alive.                                                                                    
Now  the State  of Alaska  is  challenging the  roadless rule  in                                                               
federal  court  in  Washington,  D.C.  on  a  number  of  grounds                                                               
including  that  the  Forest  Service   didn't  make  the  proper                                                               
disclosures  when it  enacted it,  that it  violates the  Tongass                                                               
Timber  Reform Act  for not  providing for  timber and  it is  in                                                               
violation of ANILCA.  The district court ruled  against the state                                                               
on  that  challenge  and  it  has been  appealed.  They  are  now                                                               
awaiting a briefing schedule from the Court of Appeals.                                                                         
3:56:30 PM                                                                                                                    
SENATOR STEDMAN said they have  talked about how turning over the                                                               
easements  to the  state is  a never-ending  battle and  recalled                                                               
that the  state had  upheld its  side of  the bargain  in turning                                                               
over its  ATF areas. He asked  how that process is  going forward                                                               
in clearing up those easements.                                                                                                 
3:57:05 PM                                                                                                                    
MR.  BEAUSANG  said he  refers  to  those  as the  Section  44.07                                                               
easements. Their status plays into  the Shelter Cove Road matter.                                                               
In short, the federal government  is still reluctant to turn over                                                               
its end  of the  bargain despite two  federal acts  directing the                                                               
DOI secretary to  do that. The state is in  litigation seeking to                                                               
compel the federal  government to turn over the  easement for the                                                               
Shelter Cove Road  project and is getting ready  to brief summary                                                               
judgement in  that case.  He said  the Shelter  Cover Road  is in                                                               
construction  pursuant  to  an  entry  permit,  but  the  federal                                                               
government has decided not to grant the easement the road needs.                                                                
3:58:05 PM                                                                                                                    
SENATOR  STEDMAN  recalled  the   legislature  funded  that  road                                                               
several years  ago with several  appropriations and it  should be                                                               
about  98  percent  complete.  As  mentioned  twice,  the  Alaska                                                               
delegation has  put specific language  in federal law  to require                                                               
them to  act and they  still don't act.  He hoped that  maybe the                                                               
new   administration  in   Washington  and   pressure  from   the                                                               
Department  of  Law will  help  clear  this  up. He  thanked  the                                                               
department for pushing back.                                                                                                    
3:59:19 PM                                                                                                                    
MR. BEAUSANG replied they are hoping  the Shelter Cove road has a                                                               
favorable outcome, because  it will also set a  precedent for the                                                               
other easements the state is owed.                                                                                              
SENATOR STEDMAN  said these road  corridors have  been identified                                                               
for 50 years or so.                                                                                                             
4:00:16 PM                                                                                                                    
SENATOR BISHOP  said it amazes him  that Congress can pass  a law                                                               
and then, so.... "Where is the justice in that?"                                                                                
SENATOR STEDMAN agreed.                                                                                                         
CHAIR GIESSEL said they all agree.                                                                                              
4:00:47 PM                                                                                                                    
MR. BEAUSANG  said the state got  a decision in the  Shelter Cove                                                               
road  matter that  the federal  government had  moved to  dismiss                                                               
their  action. The  judge wrote  a  short opinion,  which in  the                                                               
state's  view, telegraphed  that he  might be  thinking like  the                                                               
4:01:11 PM                                                                                                                    
SENATOR  BISHOP asked  what if  the  judge rules  in the  state's                                                               
favor. "Will they listen to that?"                                                                                              
MR.  BEAUSANG said  he expects  they will  listen. He  added that                                                               
sometimes  lawyers  can get  creative  when  they are  trying  to                                                               
decipher acts of  Congress, but they often don't  get so creative                                                               
when they have  an order from a federal  district judge directing                                                               
them to do something.                                                                                                           
4:01:45 PM                                                                                                                    
MR. BEAUSANG  said the  DOL was successful  in defending  the Big                                                               
Thorne timber  sale that  was approved by  the Forest  Service on                                                               
Prince  of  Wales  Island.  Environmental  groups  challenged  it                                                               
claiming  that  this  sale  would  harm the  habitat  of  a  wolf                                                               
population that lives  on the island. They were  arguing that the                                                               
National  Forest   Management  Act  required  that   there  be  a                                                               
sustainable  population of  wolves. The  state intervened  in the                                                               
matter and  said it needed to  be a viable population.  The judge                                                               
agreed  with  the  state  but   said  he  wasn't  sure  what  the                                                               
difference  was. Nevertheless,  he  upheld the  sale  and on  the                                                               
appeal. That case is closed out.                                                                                                
4:02:49 PM                                                                                                                    
SENATOR STEDMAN commented that this is  good news and one can see                                                               
the  settlement in  the  mood  of community  on  Prince of  Wales                                                               
Island that now has  a glimmer of hope that they  will be able to                                                               
survive economically.                                                                                                           
4:03:24 PM                                                                                                                    
MR. BEAUSANG next talked about  the 2016 amendment to the Tongass                                                               
Land Resources  Management Plan (TLRMP). The  state challenged it                                                               
through a "protest." The amendment  did two things that concerned                                                               
the state: one  is that it incorporated the  roadless rule within                                                               
the management plan,  so that the effect of the  rule will remain                                                               
no matter  what else happens  as long as  the plan is  in effect.                                                               
Their concern is  that it provides for a rapid  transition in the                                                               
timber industry from old growth  harvest to young growth harvest,                                                               
which is a problem for the timber industry.                                                                                     
The state  filed a  protest to  the plan and  it was  denied. Now                                                               
they are  considering various options.  This could  be overturned                                                               
due  to the  Congressional Review  Act  and they  have asked  the                                                               
secretary to direct  that this plan gets revised.  They have also                                                               
petitioned  the DOI  secretary  to exempt  the  Tongass from  the                                                               
roadless rule. There  is also the possibility  of litigation over                                                               
the plan.                                                                                                                       
4:05:17 PM                                                                                                                    
MR. BEAUSANG  turned to the Eastern  Interior Resource Management                                                               
Plan (EIRMP) that  was adopted in 2017. The  state protested this                                                               
one and was denied. It did  two things that concerned him: one is                                                               
that the  plan applies to an  area that has the  potential and is                                                               
subject to  mineral development; placer  miners are in  the area.                                                               
The  plan designates  fairly large  areas as  "areas of  critical                                                               
environmental   concerns,"   which   are  managed   almost   like                                                               
wilderness  areas.  It  also  suspends  the  termination  of  D-1                                                               
withdrawals in  the Alaska Native Claims  Settlement Act (ANCSA).                                                               
These  withdrawals  are  supposed   to  be  temporary  and  other                                                               
management  plans provide  for their  termination. This  one does                                                               
not and  in their  view, almost  creates new  conservation system                                                               
units that  are not authorized  by ANILCA. He is  considering his                                                               
options  among which  that  it could  be  overturned through  the                                                               
Congressional Review Act  or the plan could be  revised; there is                                                               
always the possibility of litigation, as well.                                                                                  
4:06:55 PM                                                                                                                    
SENATOR BISHOP  asked what the  timeline is on  the Congressional                                                               
Review Act (CRA).                                                                                                               
MR. BEAUSANG surmised  that the timeline is  flexible and depends                                                               
on when Congress has official notice of the rules.                                                                              
ATTORNEY GENERAL LINDEMUTH added that  it would be 60 legislative                                                               
days from that time.                                                                                                            
MR. BEAUSANG said  they are still within the  possibility of this                                                               
plan being reversed by the CRA.                                                                                                 
4:07:58 PM                                                                                                                    
ATTORNEY GENERAL  LINDEMUTH touched briefly on  lands into trust.                                                               
Indian tribes  had challenged  the federal  government's decision                                                               
not  to take  lands into  trust in  Alaska and  lost in  district                                                               
court. Then  the federal government  changed its mind  and issued                                                               
regulations allowing it. Since that  decision there have been six                                                               
applications to take  lands into trust in Alaska and  only one of                                                               
those, in  Craig, has been  granted so  far. The other  areas are                                                               
for a number  of parcels in Juneau for  Tlingit Haida, Ninilchik,                                                               
in the Fort Yukon area. All are less than 10 acres.                                                                             
4:09:14 PM                                                                                                                    
SENATOR COGHILL  explained that  the issue  would take  land into                                                               
federal management for  tribal groups, creating a  kind of Indian                                                               
country potential,  which takes  them off the  tax rolls.  It's a                                                               
one-way street:  once you go  in you  can't come out.  He thought                                                               
the Alaska Natives saw this  as an opportunity, but then realized                                                               
the cost gets pretty high, too.  Once it goes into effect, Alaska                                                               
probably has less  to say about everything for  zoning to taxing.                                                               
It has  caused the  people of Alaska,  Native and  non-Native, to                                                               
seriously sit down and consider it.                                                                                             
4:10:14 PM                                                                                                                    
CHAIR GIESSEL  commented that  the parcels  are small  right now,                                                               
but it does set a precedent and there is no limit.                                                                              
4:10:30 PM                                                                                                                    
ATTORNEY GENERAL LINDEMUTH responded  that keeping perspective in                                                               
mind, out  of the lands in  Alaska about 60 percent  are owned by                                                               
the  federal  government;  28  percent by  the  state;  about  12                                                               
percent by  ANCSA corporations,  which are  not tribes,  and less                                                               
than 1  percent is in  private ownership, which  includes tribes.                                                               
In order  for lands to be  taken into trust, an  Indian tribe has                                                               
to own  them in  fee. So, it's  a very small  amount of  lands in                                                               
Alaska that would be eligible to be taken into trust.                                                                           
4:11:11 PM                                                                                                                    
ATTORNEY  GENERAL LINDEMUTH  next addressed  the Arctic  National                                                               
Wildlife Refuge (ANWR) boundary dispute.  The state has been in a                                                               
dispute with the federal government  over where the boundary lays                                                               
and 20,000  acres are  at play. The  briefing is  currently under                                                               
way before  the IBLA. They have  stayed briefing in order  to see                                                               
if an agreement  could be worked out with  the federal government                                                               
on this issue.  If they don't reach agreement in  a couple weeks,                                                               
the  federal government's  brief on  that matter  is due  in mid-                                                               
4:11:59 PM                                                                                                                    
ATTORNEY  GENERAL  LINDEMUTH  said  there has  now  been  federal                                                               
legislation  opening  the  1002  area  of ANWR  to  oil  and  gas                                                               
development. In order for that to  change, there would have to be                                                               
another Congressional act.                                                                                                      
4:12:39 PM                                                                                                                    
CHAIR GIESSEL  said the U.S.  has an ongoing border  dispute with                                                               
Canada and asked if she had anything to do with that.                                                                           
ATTORNEY GENERAL LINDEMUTH  replied that she is not  aware of it,                                                               
so  it's not  in her  shop. If  she gets  corrected on  that, she                                                               
would get back to her.                                                                                                          
4:13:18 PM                                                                                                                    
MR.  BEAUSANG said  he would  next  talk about  a few  Endangered                                                               
Species Act (ESA) cases. ESA  litigation has had great success in                                                               
the  district court  only to  not have  it in  the Ninth  Circuit                                                               
Court of  Appeals. That  was the  case for  the two  bearded seal                                                               
listings in 2012.   They successfully challenged  that listing in                                                               
district  court only  to be  reversed by  the ninth  circuit, and                                                               
just  two  weeks ago,  the  U.S.  Supreme Court  denied  Alaska's                                                               
petition for  certiorari in that  case. That case and  the ringed                                                               
seal  case involve  the National  Marine  Fishery Service  (NMFS)                                                               
doing  something  that it  hasn't  done  so  much before  in  two                                                               
respects:  one  is  that  everyone  agrees  that  both  of  those                                                               
populations are  not in  trouble numbers-wise  now, but  they are                                                               
being listed  because of projections  of what is going  to happen                                                               
to  their  populations  as  a  result  of  climate  change.  Also                                                               
unusual,  is the  timeframe that  the  service is  using for  its                                                               
projections. It used to be  comfortable projecting about 50 years                                                               
out, and now it feels comfortable going 100 years out.                                                                          
4:15:47 PM                                                                                                                    
MR. BEAUSANG said  their challenges have tried to  make the point                                                               
that  perhaps  it  might  be  better to  wait  and  see  what  is                                                               
happening, since the  populations are robust now.  They have also                                                               
pointed  out that  there  isn't  any science  in  the record  for                                                               
either case about  what the effects of climate change  will be on                                                               
their populations and if the species adapt or not.                                                                              
They were  successful in  overturning the  listing of  the ringed                                                               
seal in district  court; it's on appeal to the  ninth circuit and                                                               
has been fully briefed and  argued. The ninth circuit was holding                                                               
off  on issuing  a decision  until it  saw what  happened to  the                                                               
Supreme Court petition and he expects they will decide soon.                                                                    
Polar bears were listed as threatened  in 2008. The next step was                                                               
for the  NMFS is  compelled to identify  what is  called critical                                                               
habitat  for the  species. This  is significant  because what  is                                                               
classified  as critical  habitat has  substantive and  procedural                                                               
hurdles  to any  kind of  activity that  would harm  it. The  DOL                                                               
challenged the designation of critical  habitat in the polar bear                                                               
case, because  they thought it  was not supported by  science and                                                               
it  covered  too much  area.  Their  justification for  it  being                                                               
suitable habitat for polar bears was  that as a result of climate                                                               
change, perhaps  these areas might  become suitable  for habitat.                                                               
The state  was successful in  the district court, and  once again                                                               
in  the ninth  circuit  they  were not,  and  their petition  for                                                               
certiorari was denied by the U.S. Supreme Court.                                                                                
4:17:11 PM                                                                                                                    
MR. BEAUSANG said there is good  news in the Alabama v. NMFS case                                                               
in which the state is  a co-plaintiff. That case challenges rules                                                               
on critical  habitat that speak to  some of the same  issues that                                                               
they have  been litigating in  the polar bear case  about whether                                                               
it's proper under the ESA  to designate as critical habitat areas                                                               
where the  species is not  found and  that is not  even presently                                                               
suitable  for  habitat, based  on  speculation  that the  habitat                                                               
might become suitable in the future.                                                                                            
That  case was  filed under  the previous  federal administration                                                               
and has  since been stayed  while the new  administration figures                                                               
out what  they want  to do with  it. Perhaps it  might come  to a                                                               
different  conclusion without  having  to go  through the  entire                                                               
4:18:03 PM                                                                                                                    
MR. BEAUSANG  reported that the Supreme  Court granted certiorari                                                               
a few weeks ago  in a case out of the  fifth circuit dealing with                                                               
some of these same issues  about whether it's proper to designate                                                               
critical habitat  when the species  is not found there  and based                                                               
on projections  that it might  become critical habitat  some time                                                               
in the future.                                                                                                                  
4:18:34 PM                                                                                                                    
SENATOR BISHOP asked if he argued the polar bear case.                                                                          
4:18:46 PM                                                                                                                    
MR. BEAUSANG answered no, and he didn't recall who did.                                                                         
4:18:55 PM                                                                                                                    
SENATOR  VON IMHOF  said part  of  the argument  in the  upcoming                                                               
salmon  initiative  is what  might  be  a  salmon stream  in  the                                                               
future. She asked if he was familiar with that.                                                                                 
4:19:21 PM                                                                                                                    
MR. BEAUSANG  replied that  he is  familiar with  the initiative,                                                               
but not with that particular issue.                                                                                             
4:19:42 PM                                                                                                                    
ATTORNEY GENERAL  LINDEMUTH turned to  the Clean Air Act  and two                                                               
water cases on the  bottom of page 7 and on page  8 and said this                                                               
new administration  is taking a  different approach.  These cases                                                               
are being  resolved either through  the Congressional  Review Act                                                               
(CRA) or rule making.                                                                                                           
4:20:07 PM                                                                                                                    
ATTORNEY  GENERAL LINDEMUTH  said  although  Alaska was  excluded                                                               
from  the Clean  Power Plan  issue,  the EPA  had indicated  that                                                               
Alaska  may in  the  future be  subject  to it.  So,  the DOL  is                                                               
concerned.  EPA  under the  new  administration  has proposed  to                                                               
repeal the Clean Power Plan. The  decision will be made soon, but                                                               
she doesn't expect it to stand.                                                                                                 
4:20:36 PM                                                                                                                    
ATTORNEY  GENERAL  LINDEMUTH  said  Alaska had  joined  12  other                                                               
states  in challenging  the Waters  of the  U.S. issue.  It is  a                                                               
nation-wide standard that didn't  take Alaska's unique nature and                                                               
what  that would  do to  resource development  into account.  The                                                               
U.S. Supreme  Court just recently  ruled in the state's  favor on                                                               
the  proper  venue  for  challenging  that  case,  which  is  the                                                               
district  court. Alaska  is  already  party to  a  case in  North                                                               
Dakota with 12  other states and that district  court had already                                                               
issued a  stay. Alaska is covered  by that court's order  and so,                                                               
that rule won't go into effect in Alaska.                                                                                       
The  EPA has  also  proposed that  rule not  go  into effect  for                                                               
another  two  years  while  they go  through  a  new  rule-making                                                               
process and she expects that to be successful for the state.                                                                    
4:21:52 PM                                                                                                                    
ATTORNEY GENERAL  LINDEMUTH said  the Stream Protection  Rule was                                                               
overturned by  the Congressional Review  Act, and there  has been                                                               
no  direct challenge  to that  case. But  Ms. Alloway  would talk                                                               
about another case where the  use of the Congressional Review Act                                                               
has  itself been  challenged in  these  kinds of  cases and  that                                                               
could impact this issue in the future.                                                                                          
4:22:20 PM                                                                                                                    
MS.  ALLOWAY said  there  are  two wildlife  cases  (page 9)  and                                                               
towards  the end  of the  Obama  administration regulations  were                                                               
passed that  prohibited certain state-authorized  hunting methods                                                               
and  means (bear  baiting  and  a season  for  taking wolves  and                                                               
coyotes) on  Fish and  Wildlife Service  and Park  Service lands.                                                               
They would call it predator control  and Alaska does not. This is                                                               
not what the Alaska Department of  Fish and Game uses as predator                                                               
control. The  state filed a  complaint last year  that challenged                                                               
both  sets of  those rules.  Congress did  use the  Congressional                                                               
Review  Act to  revoke the  Fish and  Wildlife Service  rule. The                                                               
National  Park Service  rule was  outside of  the 60  legislative                                                               
days (to  use the CRA) and  depends on when Congress  is session.                                                               
So,  the  state still  has  litigation  challenging that  set  of                                                               
rules.   DOL  hasn't   briefed,  yet,   and  is   in  a   "little                                                               
disagreement"  with the  federal government  over what  should be                                                               
included in  the administrative record.  In these types  of cases                                                               
one can only cite what is  in the administrative record, which is                                                               
prepared by the  National Parks Service that is  saying the Board                                                               
of Game  implemented regulations  that it  deemed to  be predator                                                               
control,  and  the  state  is   saying  "No,  we  did  not."  The                                                               
department thinks  that the  Board of  Game's record  where their                                                               
rules are explained  should be in the  administrative record. The                                                               
NPS says  it should not.  They are working out  that disagreement                                                               
and  once  the judge  issues  that  decision,  the case  will  be                                                               
He  said  the  second  part  of what  the  Attorney  General  was                                                               
referring to  is the second  case that sprung up  from Congress's                                                               
use of  the CRA. Environmental groups  are challenging Congress's                                                               
revocation  of the  Fish and  Wildlife Service  regulations. They                                                               
are basically saying  that Congress passed a  rule that prohibits                                                               
Fish  and  Wildlife  Service   from  implementing  its  statutory                                                               
mandates  under ANILCA.  The state  is aligned  with the  federal                                                               
government in  this situation, because  they are  both protecting                                                               
Congress's use of  the CRA. The federal  government's response to                                                               
that is this was a piece  of legislation passed by both the House                                                               
and Senate  and signed by the  President, and to the  extent they                                                               
were controlling the agency's use  of ANILCA, they were basically                                                               
confirming their  legislative intent  or even amending  ANILCA to                                                               
make it  clear that ANILCA  was not  meant to prohibit  the state                                                               
from  exercising  its  authority  to  implement  these  sorts  of                                                               
regulations on  federal lands.  Right now,  the state  is aligned                                                               
with  the federal  government and  this case  could impact  other                                                               
situations where the Trump administration  used the CRA. For that                                                               
reason,  other states  are participating  in  this litigation  as                                                               
amicus. Wisconsin is taking the lead on that.                                                                                   
4:26:24 PM                                                                                                                    
MR. BEAUSANG  said the Salmon Fishery  Management Plan litigation                                                               
was  filed in  2013 by  the United  Cook Inlet  Drift Association                                                               
(UCIDA).  It challenges  amendment 12  to the  Fishery Management                                                               
Plan  for Alaska  salmon fisheries.  The Fishery  Management Plan                                                               
applies to  federal waters and  most salmon fishing in  the state                                                               
takes place  in state waters. At  least three areas of  the state                                                               
have substantial  commercial salmon  fishing: Cook  Inlet, Prince                                                               
William Sound, and False Pass.                                                                                                  
Historically, since statehood the  state has always managed those                                                               
salmon fisheries, and that continued  even after the enactment of                                                               
the  Magnuson Stevens  Act of  1976, which  provided for  federal                                                               
management  of fisheries  beyond three  miles. UCIDA  has been  a                                                               
frequent  participant  at  the Board  of  Fisheries  over  issues                                                               
dealing with Cook  Inlet salmon and they have  long advocated for                                                               
more  federal   oversight  of   that  fishery.   Therefore,  they                                                               
challenged the  amendment in federal court.  The state intervened                                                               
on the  side of the  National Marine Fisheries Service  (NMFS) to                                                               
defend  the  amendment and  weren't  surprised  when the  federal                                                               
district  court   upheld  the   amendment.  However,   they  were                                                               
surprised when  the ninth circuit  reversed that  decision. After                                                               
that  decision  was made,  the  NMFS  did request  rehearing  and                                                               
petitioned the  U.S. Supreme Court  to review  it. Unfortunately,                                                               
the U.S. Supreme Court did not accept that petition.                                                                            
The district  court has now  entered an  order calling for  a new                                                               
amendment to  the Fishery Management  Plan that is going  to mean                                                               
federal  management  for  these   fisheries.  The  North  Pacific                                                               
Fisheries Management Council (NPFMC) will  take these plans up in                                                               
steps  and  the  Cook  Inlet   will  go  first.  The  state  will                                                               
participate in that  process and see what happens.  There is talk                                                               
of the NPFMC eventually delegating  management back to the state,                                                               
which  the  state  supports.  However,  there  are  going  to  be                                                               
changes, and it will be managed under the Magnuson Stevens Act.                                                                 
4:28:57 PM                                                                                                                    
MR. BEAUSANG said  the Federal Subsistence Board  matter dates to                                                               
2015  when it  authorized a  subsistence gillnet  opening in  the                                                               
Kenai River  in an area where  King salmon spawn and  some of the                                                               
best  trophy rainbow  trout in  the  state exist.  The state  and                                                               
federal  scientists   thought  this  was  a   terrible  idea  and                                                               
testified  as   such  before   the  Federal   Subsistence  Board.                                                               
Nevertheless,  the  board approved  the  proposal  and the  state                                                               
filed  a request  for reconsideration  of that  decision, as  did                                                               
hundreds of Alaskans.  All those requests are  still pending. But                                                               
since  then,  the  gillnet  has  been used  in  the  Kenai  River                                                               
pursuant to the  new rule; the Fish and Wildlife  manager has put                                                               
"pretty stringent" controls on the  gillnet fishermen and some of                                                               
the  worst  fears about  what  that  would  mean for  these  fish                                                               
populations have not come about.                                                                                                
4:30:19 PM                                                                                                                    
MR. BEAUSANG  said the  state is involved  in two  mining matters                                                               
that are outlined on page 11.  He didn't have an update but would                                                               
be happy to answer questions.                                                                                                   
4:30:36 PM                                                                                                                    
SENATOR BISHOP  asked for  more detail  on Earthworks  versus the                                                               
Department of Interior.                                                                                                         
MR. BEAUSANG  replied the  state is intervening  in that  case on                                                               
the side of  the U.S. Department of Interior to  defend two rules                                                               
that are  being challenged, only one  of which has impact  in the                                                               
state. The claim  in that case is that the  federal government is                                                               
not  collecting  appropriate fees  for  mining  on federal  lands                                                               
where  there are  no federal  mining  claims in  effect. In  that                                                               
case,   the   federal   government   does   collect   fees.   The                                                               
environmental  groups  are  asserting that  the  federal  statute                                                               
requires that  the federal government  collect whatever  would be                                                               
fair  market  value for  these  lands,  which are  probably  much                                                               
greater than what is being collected now.                                                                                       
4:31:47 PM                                                                                                                    
ATTORNEY  GENERAL LINDEMUTH  turned to  the final  matter on  the                                                               
last page, offshore development.  She explained that as President                                                               
Obama was  leaving office last year,  he issued a ban  in certain                                                               
offshore  areas   including  the   Chukchi  and   Beaufort  Seas.                                                               
President  Trump issued  an executive  order rescinding  the ban,                                                               
and  environmental groups  have  challenged that.  The Bureau  of                                                               
Ocean Energy  Management (BOEM)  is gathering  comments on  a new                                                               
proposed five-year  lease program  from 2019  to 2024.  The state                                                               
intervened in the  lawsuit to support and  defend the president's                                                               
executive  order.  At the  district  court  level, the  defendant                                                               
brought a motion to dismiss. Oral argument was held on November                                                                 
8, 2017, and they are awaiting a decision.                                                                                      
4:33:53 PM                                                                                                                    
CHAIR GIESSEL thanked the presenters and their obvious very hard                                                                
work, saying that the news is good this year.                                                                                   
4:34:23 PM                                                                                                                    
SENATOR MEYER asked if any litigation is going on in the                                                                        
National Petroleum Reserve-Alaska.                                                                                              
4:34:43 PM                                                                                                                    
ATTORNEY GENERAL LINDEMUTH said she wasn't aware of any but                                                                     
would follow up if she heard different.                                                                                         
4:35:21 PM                                                                                                                    
There being no further business to come before the committee,                                                                   
Chair Giessel adjourned the Senate Resources Standing Committee                                                                 
at 4:35 p.m.                                                                                                                    

Document Name Date/Time Subjects
Senate Resources - Dept of Law Summary of Federal Issues - 1 - 25 - 2018.pdf SRES 2/7/2018 3:30:00 PM
Federal Issues
Senate Resources - SOA Amicus Brief on Sturgeon Case - 2 - 5 - 2018.pdf SRES 2/7/2018 3:30:00 PM
Federal Issues
Senate Resources - Agenda - 2 - 7 - 18.pdf SRES 2/7/2018 3:30:00 PM