Legislature(2017 - 2018)BUTROVICH 205
02/07/2018 03:30 PM Senate RESOURCES
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| Overview: Alaska's Federal Issues | |
| Adjourn |
* first hearing in first committee of referral
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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
state.
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
made.
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
matter.
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
litigation.
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
committee.
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-
March.
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
litigation.
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
briefed.
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 |