Legislature(2019 - 2020)BUTROVICH 205
02/12/2020 03:30 PM Senate RESOURCES
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| Audio | Topic |
|---|---|
| Start | |
| Presentation: Regarding Pending Cases Affecting Alaska Resources by the Department of Law | |
| HB122 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| += | HB 122 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
SENATE RESOURCES STANDING COMMITTEE
February 12, 2020
3:33 p.m.
MEMBERS PRESENT
Senator Peter Micciche, Chair
Senator Click Bishop
Senator Joshua Revak
Senator Scott Kawasaki
Senator Jesse Kiehl
MEMBERS ABSENT
Senator John Coghill, Vice Chair
Senator Cathy Giessel
COMMITTEE CALENDAR
PRESENTATION: REGARDING PENDING CASES AFFECTING ALASKA RESOURCES
BY THE DEPARTMENT OF LAW
- HEAR
D
HOUSE BILL NO. 122 AM
"An Act relating to the Funter Bay marine park unit of the state
park system; relating to protection of the social and historical
significance of the Unangax cemetery located in Funter Bay and
providing for the amendment of the management plan for the
Funter Bay marine park unit; and providing for an effective
date."
- MOVED HB 122 AM OUT OF COMMITTEE
HOUSE BILL NO. 122 am
"An Act relating to the Funter Bay marine park unit of the state
park system; relating to protection of the social and historical
significance of the Unangax cemetery located in Funter Bay and
providing for the amendment of the management plan for the
Funter Bay marine park unit; and providing for an effective
date."
- MOVED HB 122 AM OUT OF COMMITTEE
PREVIOUS COMMITTEE ACTION
BILL: HB 122
SHORT TITLE: FUNTER BAY MARINE PARK: UNANGAN CEMETERY
SPONSOR(s): REPRESENTATIVE(s) HANNAN
04/03/19 (H) READ THE FIRST TIME - REFERRALS
04/03/19 (H) RES, FIN
04/15/19 (H) RES AT 1:00 PM BARNES 124
04/15/19 (H) Heard & Held
04/15/19 (H) MINUTE(RES)
04/17/19 (H) RES AT 1:00 PM BARNES 124
04/17/19 (H) -- MEETING CANCELED --
04/22/19 (H) RES AT 1:00 PM BARNES 124
04/22/19 (H) Moved HB 122 Out of Committee
04/22/19 (H) MINUTE(RES)
04/24/19 (H) RES RPT 3DP 3NR
04/24/19 (H) DP: HANNAN, TARR, LINCOLN
04/24/19 (H) NR: RASMUSSEN, HOPKINS, TALERICO
04/24/19 (H) FIN REFERRAL REMOVED
05/09/19 (H) TRANSMITTED TO (S)
05/09/19 (H) VERSION: HB 122 AM
05/10/19 (S) READ THE FIRST TIME - REFERRALS
05/10/19 (S) RES, FIN
02/05/20 (S) RES AT 3:30 PM BUTROVICH 205
02/05/20 (S) Heard & Held
02/05/20 (S) MINUTE(RES)
02/12/20 (S) RES AT 3:30 PM BUTROVICH 205
WITNESS REGISTER
ED SNIFFEN, Deputy Attorney General
Alaska Department of Law
Anchorage, Alaska
POSITION STATEMENT: Participated in an overview of federal
litigation affecting Alaska resources.
JESSIE ALLOWAY, Assistant to Attorney General
Civil Division
Opinion, Appeals, and Ethics Section
Alaska Department of Law
Anchorage, Alaska
POSITION STATEMENT: Participated in an overview of federal
litigation affecting Alaska resources.
MARY HUNTER GRAMLING, Assistant Attorney General
Civil Division
Natural Resources Section
Alaska Department of Law
Juneau, Alaska
POSITION STATEMENT: Participated in an overview of federal
litigation affecting Alaska resources.
REPRESENTATIVE SARA HANNAN
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Sponsor of HB 122.
HUNTER MEACHUM, Staff
Representative Sara Hannan
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Answered questions regarding HB 122.
RICHARD ZACHAROF, representing self
St. Paul Island, Alaska
POSITION STATEMENT: Testified in support of HB 122.
NIKO SANGUINETTI, Curator of Collections & Exhibits
Juneau Douglas City Museum
Juneau, Alaska
POSITION STATEMENT: Testified in support of HB 122.
JOEL BENNETT, representing self
Juneau, Alaska
POSITION STATEMENT: Testified in support of HB 122.
ACTION NARRATIVE
3:33:36 PM
CHAIR PETER MICCICHE called the Senate Resources Standing
Committee meeting to order at 3:33 p.m. Present at the call to
order were Senators Kiehl, Kawasaki, Revak, and Chair Micciche.
^PRESENTATION: Regarding Pending Cases Affecting Alaska
Resources by the Department of Law
PRESENTATION: Regarding Pending Cases Affecting Alaska Resources
by the Department of Law
3:34:23 PM
CHAIR MICCICHE announced that the first order of business would
be a presentation by the Alaska Department of Law (DOL).
3:34:46 PM
ED SNIFFEN, Deputy Attorney General, Alaska Department of Law,
Anchorage, Alaska, discussed, Navigable Waterways Case Sturgeon
v. Frost (in official capacity at Dept. of Interior) (Alaska
intervened in support of plaintiff; after State's case
dismissed, filed amicus) (Sup. Ct., 17-949) AAG C. Brooking, as
follows:
• Alignment with Feds
o Not aligned
• Brief Description
o State intervened to challenge the U.S. Department of
Interior's (DOI) application of National Park Service
(NPS) regulations to state navigable waterways. The
Ninth Circuit originally ruled in favor of the DOI and
dismissed the State's independent challenge for lack
of standing. State filed an amicus brief supporting
Sturgeon's challenge at the U.S. Supreme Court. The
Supreme Court reversed the Ninth Circuit's decision
and remanded for further proceedings. On remand the
Ninth Circuit again found for the DOI. The Supreme
Court heard the case again and ruled in Mr. Sturgeon's
favor.
• Status
o The State is not a party to the case but participated
as an amicus, including supporting Mr. Sturgeon's
second cert. petition to the U.S. Supreme Court. In
March 2019 the U.S. Supreme Court ruled 9-0 in Mr.
Sturgeon (and the State's) favor; holding that the
State's navigable waters are not transformed into
federal lands by virtue of falling within conservation
system units created by the Alaska National Interest
Lands Conservation Act (ANILCA). The case has been
remanded to the lower courts for ministerial follow-
up.
MR. SNIFFEN said most people are familiar with Mr. Sturgeon's
efforts before the U.S. Supreme Court. The favorable result
found that the federal government cannot regulate state
navigable waterways. In May 2019, Attorney General Clarkson sent
a letter to the National Park Service (NPS) asking them to amend
their regulations to conform to the decision in the Sturgeon
case. In September 2019, the attorney general sent the U.S.
Department of Interior (DOI) a formal petition for rulemaking
asking them to change the specific language in their existing
regulations to comply with the new mandates that the U.S.
Supreme Court laid out in the Sturgeon case. DOL heard from DOI
that they have not promulgated a final rule, but their intent is
to have a final rule in place by the end of 2020.
CHAIR MICCICHE asked if DOL expects compliance.
MR. SNIFFEN answered yes. He said DOL expects that NPS and DOI
will promulgate a rule that will change the language to conform
to the Sturgeon decision. DOL knows that the two agencies are no
longer enforcing federal regulations over waters where the state
owns the submerged lands.
3:37:27 PM
JESSIE ALLOWAY, Assistant to Attorney General, Civil Division
Opinion, Appeals, and Ethics Section, Alaska Department of Law,
Anchorage, Alaska, said she will talk about Alaska's
navigability program in cases against federal agencies to
determine who owns submerged lands under waterways. She said the
Sturgeon case will make the lines for navigability cases even
more important. For the Sturgeon case to apply, the State must
prove it owns submerged lands, which is what the navigability
cases are about.
MS. ALLOWAY explained that the disagreement between the State
and the federal government generally falls into two categories:
was there pre-statehood withdrawal of submerged lands by the
federal government, or are the waterways actually navigable.
3:38:26 PM
She reviewed, Navigable Waterways Case: Kuskokwim River/Interior
Board of Land Appeals (IBLA) Appeal AAG J. Alloway, as follows:
• Alignment with Feds
o Not aligned
• Brief Description
o The State requested a recordable disclaimer of
interest on the Kuskokwim River to resolve a dispute
over ownership of a portion of the riverbed. The
Bureau of Land Management (BLM) denied the request,
and the State appealed to Interior Board of Land
Appeals.
• Status
o Briefing is complete and we are awaiting a decision by
the IBLA.
MS. ALLOWAY detailed that the case is a pre-statehood withdrawal
issue. There is agreement on much of the Kuskokwim River except
for a small section near McGrath that the federal government
claims withdrawal occurred pre-statehood for a military
reservation. They ultimately relinquished the military
reservation to general land status prior to statehood, but that
was not a valid pre-statehood withdrawal. The Interior Board of
Land Appeals decision has been pending since 2016.
3:39:18 PM
MS. ALLOWAY reviewed, Navigable Waterways Case: Knik
River/Eklutna, Inc.'s Selection Application/IBLA Appeal State v.
U.S. (3:17-cv-00090) AAG J. Alloway, as follows:
• Alignment with Feds
o Not aligned
• Brief Description
o In approving Eklutna, Inc.'s selection application,
IBLA and the Bureau of Land Management (BLM) did not
preserve Alaska Native Claims Settlement Act (ANCSA)
17(b) easements and purported to convey portions of
the bed of the Knik River, which the State asserts is
a state navigable waterway.
• Status
o The State settled the easement issue to preserve
public access. The State filed a lawsuit challenging
the navigability finding. BLM reversed its previous
navigability determination and filed a formal
disclaimer of interest. The State was awarded $400 in
costs, and BLM appealed the cost decision to the Ninth
Circuit. BLM voluntarily dismissed its appeal in
November 2019.
MS. ALLOWAY detailed that the federal government claimed that a
portion of the Knik River, just below the glacier to the old
Glenn Highway Bridge, was non-navigable and conveyed to Eklutna.
The State challenged the conveyance by filing a quiet title
action.
She noted that the federal government ultimately agreed with the
State and disclaimed their interest prior to getting too far
into the litigation.
MS. ALLOWAY said she filed a motion for nearly $425 in
prevailing party costs up to the Ninth Circuit and won, but the
federal government appealed. The State engaged in unsuccessful
mediation prior to the case going forward, but the federal
government ultimately dismissed its appeal. The State is waiting
for the $425 check. The finished case is going through an
administrative process dealing with 17(b) easements.
3:40:22 PM
She reviewed, Navigable Waterways Case: Middle Fork, North Fork,
and Dennison Fork of the Fortymile River navigability AAG J.
Alloway, as follows:
• Alignment with the Feds
o Not aligned
• Brief Description
o BLM previously found portions of the Middle Fork of
the Fortymile, North Fork of the Fortymile, Dennison
Fork, and West Fork of the Dennison Fork nonnavigable.
In response to the State's notice of intent to sue,
BLM reversed its position on the Dennison Fork and the
West Fork of the Dennison Fork, but not the other two
rivers. The State filed a quiet title action on those
rivers in October 2018.
• Status
o BLM filed an answer denying the navigability of the
disputed portions of the Middle Fork and North Fork of
the Fortymile. The parties are engaged in discovery
and the trial is anticipated in the fall of 2020.
MS. ALLOWAY summarized that both parties have identified their
experts. The State anticipates depositions in the spring of 2020
and a trial in the fall of 2020.
3:41:03 PM
MS. ALLOWAY reviewed, Navigable Waterways Case: Navigable
Waterways/Togiak Public Use Management Plan (PUMP) AAG A.
Nelson, as follows:
• Alignment with Feds
o Not aligned
• Brief Description
o The PUMP asserts jurisdiction over and directs the
United States Fish and Wildlife Service (USFWS) to
adopt regulations to limit unguided use on state
navigable waterways in the Togiak National Wildlife
Refuge.
• Status
o The USFWS has not proposed the regulations yet.
MS. ALLOWAY noted that litigation in the Sturgeon case held up
USFWS regulation promulgation. The State anticipates resolution
once the Department of Interior publishes its new water
regulations in compliance with the Sturgeon decision.
CHAIR MICCICHE asked why navigability determination is important
in the rulings.
MS. ALLOWAY explained that under the equal footing doctrine, all
states came into the Union under equal footing. All states are
entitled to the submerged lands under their navigable-in-fact
waterways. The navigable-in-fact determination is a federal test
that the State applies.
MS. ALLOWAY explained that she breaks the navigable-in-fact down
to whether a boat can float down a waterway carrying a thousand
pounds relatively easily, which is a position that the federal
government would disagree with. She noted that the term "boat"
means an inflatable raft carrying a thousand pounds. The State's
position is the submerged lands belong to Alaska if a waterway
is navigable-in-fact.
CHAIR MICCICHE asked if a waterway must pass the test at all
stages of the tide in all seasons.
MS. ALLOWAY answered no. She pointed out that the State took a
position in the Mosquito Fork litigation that taking a customary
and ordinary watercraft down the waterway during one-third of
the open water season (May through September) is sufficient. The
U.S. Supreme Court has stated multiple times that navigability
does not have to be easy, it can be difficult. Hitting a rock
and pulling a boat does not defeat navigability but having to
portage a boat might be a problem. She noted that none of the
rivers she is talking about requires a portage.
3:43:55 PM
MARY HUNTER GRAMLING, Assistant Attorney General, Civil
Division, Natural Resources Section, Alaska Department of Law,
Juneau, Alaska, discussed, Access and Land Case: Roadless Rule -
State of Alaska v. U.S. Dept. of Agriculture (D.C. Cir., 17-
5260) AAGs M. Gramling S. Lynch, as follows:
• Alignment with Feds
o Not aligned
• Brief Description
o State challenged the application of the roadless rule
in Alaska as well as nationwide. The roadless rule
prohibits the building of roads in Inventoried
Roadless Areas of national forests, which essentially
shuts down resource development in many areas of the
Tongass. On a parallel track, the State is pursuing
regulatory relief for the Tongass.
• Status
o In the litigation, the district court upheld the
roadless rule, and the State appealed. Briefing has
been completed, but the appellate court granted
intervenor's request to put the case on hold until the
rulemaking is done. The State continues to object to
the abeyance. On the rulemaking, the USDA proposed an
exemption for the Tongass to the roadless rule. The
public comment period for the proposed rule ended in
December.
MS. HUNTER GRAMLING noted that every 90 days since October 2018,
the State has been filing reports with the other parties on the
status of the rulemaking. The State continues to object to the
abeyance. The USDA published a draft environmental impact
statement (DEIS) in October 2019 and comments on it occurred in
December 2019. The USDA is planning to get a ruling out by June
2020. The USDA's preferred alternative was the alternative that
the State requested which would be full exemption for the
Tongass.
MS. HUNTER GRAMLING explained that the State's position is that
even if Alaska gets the full exemption for the Tongass, the
rulemaking doesn't obviate the need for the litigation. The
State wants to continue with the litigation because it has
claims against the roadless rule nationwide, statewide, and
Tongass-wide.
3:46:15 PM
MS. HUNTER GRAMLING reviewed, Access and Land Case: Shelter Cove
Road - State v. U.S. Forest Service (1:16-cv-00018); Greater
Southeast Alaska Conservation Community v. Stewart (State
intervened in support of defendant) (1:16-cv-0009) AAG S. Lynch,
as follows:
• Alignment with Feds
o Resolved in State's favor.
• Brief Description
o The State intervened to defend the building of Shelter
Cove Road in Ketchikan. Contrary to the federal
government's position, the State asserted that it has
a Section 4407 easement for the road. This would mean
no environmental review is needed. To ensure the 4407
issue is addressed, State brought a separate lawsuit
on that issue. The lawsuits have been consolidated and
the Court heard motions for summary judgment on all
issues.
• Status
o In the environmental group's challenge to the State's
road project, the court issued partial summary
judgment in the State's favor on all environmental
permitting issues, and dismissed all 4407 issues with
prejudice on a finding of no National Environmental
Policy Act (NEPA) or National Forest Management Act
(NFMA) requirements for these easements. In the
State's companion suit against the USFS, on June 11,
2019 the court issued a summary judgment order
providing clear and particular declarations on the
scope and requirements for the 4407 easements With the
favorable decision on all causes of action, DOT&PF
anticipates the acceleration of certain project
timelines in Southeast Alaska.
MS. HUNTER GRAMLING explained that the U.S. District Court for
the District of Alaska decided on the two consolidated cases.
The State sought multiple declarations about Section 4407
easement corridors and the court granted some of them. The court
ruling increases the flexibility for the State's ability to site
for road construction with those easements. The ruling also
declared that within those property rights the State should have
permanent access across National Forest lands, a ruling that
includes the Tongass roadless rule issues. The case is important
because it is in a line of cases where Alaska is trying to
preserve its infrastructure rights to connect communities,
particularly in the Tongass.
CHAIR MICCICHE asked when resolved actually means resolved.
MS. HUNTER GRAMLING answered that to her knowledge there is no
appeal for the U.S. District Court decision regarding the
Shelter Cove Road case. She said, "For now, it's been resolved."
She pointed out that the declarations from the case will be
helpful for other cases going forward.
CHAIR MICCICHE remarked that there is potential for cases
without resolution. He said there may be some forward motion,
but someone can always bring a suit back. He asked if the U.S.
Supreme Court ever says, "We're done."
MS. HUNTER GRAMLING answered that the decision made by the U.S.
District Court is on what she believes to be an unfinished
project. She said case completion could occur when the project
finishes, but litigation has concluded for the current round.
3:48:51 PM
MS. ALLOWAY addressed, Access and Land Case: R.S. 2477 Rights of
Way - State of Alaska v. U.S. (4:13-cv-00008) AAGs J. Alloway,
M. Schechter, as follows:
• Alignment with Feds
o Not aligned
• Brief Description
o State sued the U.S. and others to quiet title to a
number of R.S. 2477 rights-of-way near Chicken,
Alaska.
• Status
o At the district court level. The State successfully
condemned the rights-of-way across Native allotment
lands, which was necessary before the case proceeded
on the main issues relating to land owned by the
federal government. The Native allotment owners
appealed that decision to the Ninth Circuit, but the
remainder of the case is proceeding. The case is
currently in the discovery phase, and trial is
anticipated in the fall of 2020.
MS. ALLOWAY detailed that the Chicken litigation deals with a
series of trails that leave Chicken to the north and ultimately
ends up going into Wild and Scenic Corridors in the 40-mile
area, both near Franklin Creek and Hutchinson Creek. To get to
the terminuses of the two trails, a person had to go through a
Native allotment, so there were multiple things going on in the
litigation.
She explained that the courts held that the Native allotment
owners did not have jurisdiction to address the State's claim of
an R.S. 2477 right-of-way. The State had to ultimately condemn
the lands in order to have a continuous right. The condemnation
proceeding concluded in the district court, but it gets back to,
"When is it resolved?" An appeal is in the Ninth Circuit Court
and the State brief is due in March 2020.
MS. ALLOWAY added that the State is now proceeding against the
federal government in the R.S. 2477s that the State claimed
through their Wild and Scenic Corridor. The case is at the
district court level with the State in the discovery process.
Depositions occurred last week and expert reports will be
exchanged in a couple of months, similar to the navigability
cases. The anticipated trial date is next spring or early
winter.
3:50:30 PM
CHAIR MICCICHE asked what the best way is for Alaskans to stay
in touch with the cases that DOL is pursuing.
MS. ALLOWAY suggested that the public contact the State of
Alaska Public Access Assertion and Defense (PAAD) Unit at DNR.
CHAIR MICCICHE remarked that his secondary objective is to
inform the public and have the public care. He opined that
federal decisions have compromised Alaskan's rights and everyday
lives prior to and after statehood. He said what DOL is doing is
very important and suggested that the department share a case
spreadsheet with the public on a biannual basis.
MR. SNIFFEN explained that DOL biannually updates the federal
cases chart and posts the chart on the department's website for
public access.
3:53:02 PM
MS. HUNTER GRAMLING reviewed, Access and Land Case: King Cove
Road Friends of Izembek NWF v. Bernhardt (3:19-cv-00216) AAGs S.
Lynch, M. Gramling, as follows:
• Alignment with Feds
o Aligned
• Brief Description
o For many years, residents of King Cove have been
trying to get a road from the village to the airport
at Cold Bay. The road would be primarily for health
and safety purposes, as the airport at Cold Bay is the
nearest location where large planes can land in the
area's often poor weather conditions. A road directly
connecting these two towns would have to cross
federally designated wilderness in the Izembek
National Wildlife Refuge.
• Status
o There have been three attempts to complete a land
exchange with federal administrations. The State has
participated as an intervenor-defendant and amicus
curiae in past litigation. Most recently, King Cove
Corporation and the U.S. Dept. of Interior (DOI)
entered into a 2019 land exchange agreement, which,
like previous similar agreements, has been challenged
by environmental groups. On January 8, 2020, the State
moved to intervene in the case in support of the
agreement and the road.
MS. HUNTER GRAMLING reviewed, Access and Land Case: 2016
Amendment to the Tongass Land Resources Management Plan (TLMP)
AAGs M. Gramling, S. Lynch, as follows:
• Alignment with Feds
o Uncertain
• Brief Description
o The 2016 TLMP amendment fully incorporated both the
roadless rule and the Secretary of Agriculture's
directive to rapidly transition timber harvest from
old growth to young growth. The result would
effectively place millions of additional acres off-
limits to timber harvest and other resource
development. The timber industry would likely be
forced out of business while utilities, mining and
other industries would be substantially harmed.
• Status
o The Secretary of Agriculture granted the State's
petition for a rulemaking to effectively amend the
roadless rule by promulgating a state specific rule to
manage roadless areas in Alaska. USDA published a
Notice of Intent to commence the rulemaking on August
30, 2018. A final rule is expected by summer of 2020.
But the USDA declined the State's request to
simultaneously amend the 2016 TLMP concluding that any
amended to the TLMP must be a second process after the
regulation has been changed. There is no specific plan
or timetable to amend the TLMP.
MS. HUNTER GRAMLING explained that the State's alignment is
uncertain because the petition for rulemaking process is
underway and the roadless rule litigation is pending. For the
moment, DOL is not acting on the 2016 TLMP because it wants to
see how the other two avenues that the State is pursuing pan
out. After the finalized TLMP, DOL filed objections and
preserved its ability to take further action.
CHAIR MICCICHE asked if alignment on the Izembek Road case
relates to the land exchange agreement.
MS. HUNTER GRAMLING answered that the environmental groups
challenged the federal government's decision to enter into the
exchange and the State entered in support of the federal
government.
3:55:49 PM
She reviewed, Access and Land Case: 2019 Amendment to the
Chugach Land Resources Management Plan AAG S. Lynch, as follows:
• Alignment with Feds
o Not Aligned
• Brief Description
o The new Chugach NF Plan established de facto
Conservation System Units (CSUs) in violation of
ANILCA's prohibition of additional CSUs except by Act
of Congress. The unauthorized CSU's overlap existing
highways, railways, and utilities and will make it
difficult to impossible to expand or improve these
facilities.
• Status
o The State sought resolution of these issues with the
USFS both formally and informally. On October 29, 2019
the State filed its formal objections, under USFS NEPA
procedures, to the draft ROD in support of USFS's new
Chugach NF Plan. Objection resolution meetings are
scheduled for mid-January 2020. The final (and
judicially challengeable) ROD and Chugach NF Plan are
expected in May 2020.
MS. HUNTER GRAMLING said the State will evaluate options going
forward after the Final Record of Decision. Part of the issue
with federal land management plans is that sometimes the
national rule imposed on Alaska does not consider the Alaska
National Interest Lands Conservation Act (ANILCA) provisions.
3:55:58 PM
SENATOR BISHOP joined the committee meeting.
MR. SNIFFEN reviewed, Access and Land Case: Eastern Interior
Resource Management Plan (EIRMP) AAG A. Nelson, as follows:
• Alignment with Feds
o Not aligned
• Brief Description
o The EIRMP, adopted January 6, 2017, recommends
unjustified mineral closures and conservation
designations that are inconsistent with Alaska
National Interest Lands Conservation Act (ANILCA) and
Federal Land Policy Management Act's multiple use
mandate. The EIRMP also fails to provide for lifting
outdated ANCSA d-1 withdrawals unless new conservation
withdrawals are implemented, although BLM has lifted
the withdrawals in some of the less controversial
areas, facilitating conveyance of certain statehood
selections.
• Status
o The Government Accountability Office determined in
2017 that the EIRMP is a rule under the Congressional
Review Act - Congress has 60 session days to repeal
rules. BLM has not submitted the Plan to Congress as
required by the Act and it's unclear whether the 60-
day period has already run or has yet to begin. We
continue to monitor congressional and agency action on
the issue and evaluate options, including
administrative action and litigation. We also continue
to monitor implementation decisions made under EIRMP.
MR. SNIFFEN said the Eastern Interior Resource Management Plan
(EIRMP) is a BLM land management plan for a very large area that
contains smaller, disconnected BLM units, including the Steese
and White Mountains areas in the Fortymile and Black River
regions. The BLM plan is problematic because it contains land
withdrawn from the federal public domain under ANCSA that is
close to mineral development.
He detailed that federal withdrawals originated in 1971 to
prevent the creation of third-party rights during ANCSA
selections. However, in 2004 after passage of the Alaska Lands
Transfer Acceleration Act (ALTAA), Congress directed BLM to
identify land for lifting from those withdrawals. BLM identified
about 50 million acres to lift and made them available for
Alaska. The first lifted withdrawals occurred in 2018 in the
Goodnews Bay area and additional lifted withdrawals occurred in
2019 in the Fortymile and Bering Glacier areas.
MR. SNIFFEN said the federal is not moving as quickly as the
State would like in removing their restrictions on Alaska to
pursue mineral or land development.
3:58:48 PM
MR. SNIFFEN reviewed, Access and Land Case: Lands into Trust AAG
A. Nelson, as follows:
• Alignment with Feds
o Uncertain
• Brief Description
o After the district court in Akiachak v. Dept. of
Interior found in favor of plaintiffs, DOI changed its
regulations to permit lands in Alaska to be taken into
trust. This summer, the Department of Justice
rescinded the Solicitor's Opinion on which the DOI
relied to change its regulations. DOI has stated it
will not process any new applications, but federal
representatives have stated that pending applications
would continue to be processed.
• Status
o The State commented on six applications before the DOI
embarked on the new rulemaking process--one from the
Craig Tribal Association, three from the Central
Council Tlingit and Haida Indian Tribes of Alaska, one
from the Ninilchik Traditional Council, and one from
the Native Village of Fort Yukon. BIA has granted the
Craig application, but has not acted on the other
applications. The BIA held public meetings and
consultations with tribes throughout the State. The
State submitted comments to Interior of January 25,
2019.
MR. SNIFFEN detailed that the State does not know when the
Department of Interior (DOI) will issue a new Solicitor's
Opinion or if they will open a new rulemaking. The State knows
that DOI is not processing any new applications to take lands
into trust, but they have stated that they will continue to
process submitted applications. The State is not aware of any
actions taken on pending applications.
CHAIR MICCICHE asked if the Craig application for lands in trust
is the only one in Alaska.
MR. SNIFFEN answered yes; there is an approximate one-acre
parcel of land in Craig taken into trust.
CHAIR MICCICHE asked if the application granted in Craig is a
test case of some sort.
MR. SNIFFEN answered no. He explained that after the withdrawal
of the Solicitor's Opinion, processing of pending applications
has not occurred.
4:01:18 PM
MS. HUNTER GRAMLING reviewed, Access and Land Case: Arctic
National Wildlife Refuge (ANWR) Boundary IBLA Appeal AAGs M.
Schechter, as follows:
• Alignment with Feds
o Not aligned
• Brief Description
o BLM denied the State's request for conveyance of
20,000 acres, based on dispute over western boundary
of ANWR. The State also objected to a survey plat of
the area directly south of the area requested for
conveyance.
• Status
o IBLA denied BLM's motion to dismiss and has
consolidated the State's two appeals. Briefing was
completed in May 2018 and the case is now awaiting a
decision from the IBLA, which continues to deal with a
significant case backlog. The IBLA denied a joint
motion to expedite the case in June 2019.
MS. HUNTER GRAMLING noted that BLM also wanted expedited appeal
consideration because the Tax Cuts and Jobs Act authorized
consideration to open the 1002 Area in the Arctic National
Wildlife Refuge (ANWR) to oil and gas leasing. However, the
inclusion of the disputed acreage within the boundary appeal is
in question. BLM's preference is to clear up the dispute to
determine whether leasing is possible. The State obviously would
also like the acres.
SENATOR BISHOP asked if the State is claiming the 20,000 acres.
MS. HUNTER GRAMLING answered yes. She said there is no alignment
between the State and federal government on the 20,000-acre
conveyance request, but there is alignment between both parties
to get the appeal resolved.
CHAIR MICCICHE summarized that if there were conveyance, the
State of Alaska would be managing a lease sale and not BLM.
MS. HUNTER GRAMLING answered correct.
4:03:52 PM
MS. HUNTER GRAMLING reviewed, Access and Land Case: ANWR Section
1002 AAG J Hartz, as follows:
• Alignment with Feds
o Aligned
• Brief Description
o The Tax Cuts and Jobs Act of 2017, Pub. L. 115- 97,
opened the ANWR 1002 area to oil and gas exploration
and leasing.
• Status
o BLM finalized the EIS on September 12, 2019 and issued
a notice that the final EIS was available for review
on September 25, 2019. BLM must wait at least 30 days
after that date to issue a Record of Decision that
chooses BLM's preferred alternative for conducting a
lease sale program in the ANWR1002 area. BLM has not
issued a record of decision as of the time this report
was provided.
MS. HUNTER GRAMLING detailed that the State submitted comments
and is waiting for a record of decision. At that time, the
federal government can move forward with leasing.
MR. SNIFFEN reviewed, Access and Land Case: Native Village of
Eklutna v. United States Department of the Interior et al (D.C.
District Court No. 1:19-cv02388) AAG L Harrison, as follows:
• Alignment with Feds
o Aligned
• Brief Description
o The Native Village of Eklutna requested a
determination from the Department of the Interior that
a certain Alaska Native allotment is "Indian lands
eligible for gaming under the Indian Gaming Regulatory
Act. The Department denied the request primarily on
the grounds that the plaintiff does not have
jurisdiction or "exercise governmental power" over the
allotment, as required to meet IGRA's definition of
"Indian lands." The plaintiff has challenged the
denial in D.C. District Court pursuant to the
Administrative Procedures Act. The State has moved to
intervene in defense of the Department's denial.
• Status
o This case is in its early stages. The plaintiff filed
the Complaint on August 7, 2019, the federal
defendants filed their Answer on December 17, 2019 and
the State moved to intervene on December 31, 2019, and
the motion was granted. The administrative record has
not yet been certified. No substantive briefing has
yet been filed.
MR. SNIFFEN explained that the State intervened in the case on
the side of the decision that the allotments did not meet the
definition test. The decision has broad reaching applications
for a lot of allotments in Alaska and the State's authority to
control gaming activities and funds derived from that activity
on allotment land across the state.
4:05:49 PM
CHAIR MICCICHE noted that there are a lot of Indian lands across
the U.S. where gaming occurs. He asked what the difference is in
Alaska.
MR. SNIFFEN explained that across the country the federal
government established Indian reservation land via treaties and
settlements. However, Alaska settled a lot of Indian claims
through ANCSA. He noted that there has never been a decision on
Native allotments in Alaska.
MR. SNIFFEN reviewed, Clean Air Act Case: 2017 Regional Haze
State Implementation Plan Rule - State v. Environmental
Protection Agency (EPA); Texas v. EPA (D.C. Cir., 17- 1074) AAG
S. Mulder, as follows:
• Alignment with Feds
o Uncertain
• Brief Description
o The State, along with North Dakota, Texas, and
Arkansas, challenged the 2017 Regional Haze State
Implementation Plan Rule, which imposed quantification
requirements on international air emission
contributions to regional haze affecting national
parks and wilderness areas. The State is concerned
about having international contributions to haze, that
are beyond the State's control, count against Alaska
and other states. The State also objects to the
Environmental Protection Agency (EPA) shifting its
modeling responsibilities and modeling costs to
Alaska.
• Status
o At the appellate court level. Briefing is currently on
hold, while EPA revisits aspects of the rule and
engages in a new rulemaking process.
4:08:55 PM
MS. HUNTER GRAMLING discussed, Clean Air Act Case: Clean Power
Plan (40 C.F.R. 60.5700- .5820) AAG S. Mulder, as follows:
• Alignment with Feds
o Uncertain
• Brief Description
o The Clean Power Plan (CPP) established mandatory
"goals" for reducing carbon emissions from certain
coal and natural gas fired power plants. EPA excluded
Alaska and Hawaii from the final rule, but EPA
indicated that they would likely include Alaska in the
future after accruing more evidence.
• Status
o President Trump signed an executive order calling on
the EPA to review the CPP and end the moratorium on
coal mining on federal lands. On August 21, 2018, EPA
announced it was proposing a new rule, the Affordable
Clean Energy rule (ACE), to replace the CPP. On June
19, 2019, EPA issued the final ACE rule "replacing the
prior administration's overreaching CPP with a rule
that restores the rule of law and empowers states to
continue to reduce emissions while providing
affordable and reliable energy for all Americans."
[EPA News Release 6/19/2019].
CHAIR MICCICHE asked what the reasons were that the EPA
originally excluded Alaska and Hawaii. He inquired if the EPA
could exclude another state, at will, in the final rule.
MS. HUNTER GRAMLING answered that since the repeal of the Clean
Power Plan (CPP) regulations, it does not seem likely that
Alaska is at risk from the current administration, but it is an
issue that DOL will monitor.
4:11:01 PM
MS. HUNTER GRAMLING reviewed, Clean Air Act Case: Affordable
Clean Energy Rule (ACE) AAG. Mulder, as follows:
• Alignment with Feds
o Aligned
• Brief Description
o The Affordable Clean Energy (ACE) rule and took effect
on September 6, 2019. ACE repeals the Clean Power Plan
(CPP); issues emissions guidelines for greenhouse gas
emissions; and revises the emission guidelines
implementing regulations under the Clean Air Act.
• Status
o Legal challenges have been filed by various groups and
states asking the court to toss the ACE rule and
reinstitute the CPP. Am. Lung Assoc. v. EPA, No. 19-
1140 (July 8, 2019 D.C. Circuit); New York v. EPA, No.
19-1166 (Aug. 14, 2019 D.C. Circuit). Numerous
industry groups and power providers are seeking to
intervene in the litigation to support EPA's ACE rule.
Alaska and several other states intervened in New York
v. EPA.
MS. ALLOWAY reviewed, Water Case: "Waters of the U.S." Rule -
North Dakota v. EPA (ND Dist. Ct. 3:15-cv00059) AAG A. Roberts,
as follows:
• Alignment with Feds:
o Uncertain
• Brief Description:
o State joined a coalition of 12 states challenging the
2015 "waters of the U.S." (WOTUS) rule. Among other
things, the 2015 rule expands what falls under federal
jurisdiction by automatically sweeping up "adjacent"
or "neighboring" waters and wetlands within certain
geographical limits to downstream waters already
covered by federal law.
• Status:
o The district court action is currently proceeding in
North Dakota Federal District Court. The WOTUS rule
has been stayed by the court as to the states that are
a party to this case, including Alaska. Summary
judgment briefing is complete. The federal government
is no longer defending the merits of the 2015 rule,
though intervening environmental groups are. Oral
argument still has not been scheduled.
Meanwhile EPA and the Army Corps of Engineers
initiated a 2-step process for revising the rule. Step
1, repealing the 2015 rule, has been completed
reinstating the prior definition. Step 2, a rulemaking
to redefine WOTUS has been through public comment. On
January 23, 2020 EPA issued the final rule. The
affected state agencies are currently reviewing the
final rule for impact.
4:13:04 PM
MS. ALLOWAY reviewed, Fish and Game Case: NPS and USFWS Rules on
Management of Fish and Game - State v. Bernhardt (3:17- cv-
00013) AAGs C. Brooking, J. Alloway, as follows:
• Alignment with Feds
o Not aligned
• Brief Description
o The State is challenging regulations adopted by the
National Park Service affecting hunting on preserve
lands throughout Alaska and regulations adopted by the
U.S. Fish and Wildlife Service restricting hunting on
the Kenai National Wildlife Refuge (NWR). Three cases
were filed and consolidated. The NPS regulations
preempted state management of wildlife, prohibited
several means of take for predators, and changed
public participation procedures for hunting and
fishing closures. The USFWS regulations prohibit
certain activities within the Kenai NWR and the State
is objecting to the prohibition on taking brown bears
at black bear baiting stations, a practice that is
allowed under state regulations.
• Status
o In July 2017, NPS and USFWS were directed by the
Acting Assistant Secretary for Fish and Wildlife and
Parks to initiate rulemaking procedures to reconsider
their rules. In June 2018, NPS published a proposed
rule that would reverse much of the 2015 rule
challenged in the litigation, and the comment period
closed October 5, 2018. USFWS has not published a
proposed new rule. The litigation has been stayed for
several months pending possible rulemaking that might
moot portions of the lawsuit. The parties agreed to
delay action in the case pending further rulemaking. A
briefing schedule anticipates opening briefs to be
filed January 6, 2020.
4:14:39 PM
MS. ALLOWAY reviewed, Fish and Game Case: Congressional Review
Act Resolution CRA) on USFWS Rules - Center for Biological
Diversity v Bernhardt (3:17- cv- 00091) AAGs C. Brooking, J.
Alloway, as follows:
• Alignment
o Generally aligned
• Brief Description
o The Center for Biological Diversity (CBD) filed a
lawsuit to challenge Pub. L. 115-20 which was adopted
under the rules established in the CRA Pub. L115-20
revoked a rule adopted by the USFWS that would have
restricted hunting and affected refuge closure
procedures on all refuges throughout Alaska. The State
intervened on behalf of the federal defendants. CBD
argued that Public Law No. 115-20 adopted under the
CRA violated the Take Care clause of the US
Constitution because it prevented FWS from carrying
out its statutory responsibilities under existing
laws.
• Status
o The district court dismissed the litigation in June
2018. In August 2018, plaintiff appealed to the Ninth
Circuit. In December 2019 the Ninth Circuit issued an
opinion that resolved all claims in favor of
defendants.
SENATOR REVAK asked what the NPS rules are, how they differ, and
what DOL is challenging.
MS. ALLOWAY explained that the heart of the issue is what the
State considers to be predator control. Examples include the
State authorized taking of black bears in their den for
subsistence hunting by Native groups, brown bear over bait, and
hunting season change for wolves. The federal government views
the previous examples to be predator control.
4:17:38 PM
SENATOR REVAK summarized that the National Park Service (NPS)
does not allow any predator control.
MS. ALLOWAY answered yes.
SENATOR BISHOP asked Ms. Alloway to confirm that the National
Park Service (NPS) does not allow predator control.
MS. ALLOWAY answered that is correct.
SENATOR BISHOP pointed out that allowing predator control is not
a blanket position. He said there have been some cases in the
Aleutians where the federal government has eradicated certain
species.
CHAIR MICCICHE asked Ms. Alloway to talk about the relationship
between the sustained yield principle in the Alaska Constitution
and how that is problematic in the predator control case. He
said the U.S. Department of Justice has taken a position that
NPS policies preempt Alaska's constitutional management through
sustained yield, and asked if that is important in the predator
control case.
MS. ALLOWAY answered yes. She explained that the Alaska
Department of Fish and Game (ADFG) manages wildlife populations
through the sustained yield guideline. Part of the argument that
DOL is raising in the litigation is that the federal government
exercises its jurisdiction to preempt Alaska without any
biological studies. There is no concern about the populations
that ADFG is managing because there are plenty of animals. ADFG
was not reducing the number of predators to allow the prey
population to increase. The federal government is hampering
Alaska's ability to maintain all populations for a sustained
yield.
CHAIR MICCICHE remarked that the federal government's ability to
define predator control could extend into the taking of any
predator for any reason in the future if they are able to create
their own definition. The federal government winning the case on
predator control could impact 80 percent of the lands in Alaska.
4:20:18 PM
MS. ALLOWAY answered yes, depending on how the court wants to
define predator control.
MS. ALLOWAY reviewed, Fish and Game Case: Salmon Fishery
Management Plan - United Cook Inlet Drift Association v.
National Marine Fisheries Service (Alaska intervened in support
of defendants) (3:13-cv-0104) AAG A. Peterson, as follows:
• Alignment with Feds
o Aligned
• Brief Description
o United Cook Inlet Drift Association (UCIDA) sued the
National Marine Fisheries Service (NMFS) challenging
the validity of Amendment 12 to the Fishery Management
Plan (FMP) for Salmon Fisheries in the Exclusive
Economic Zone (EEZ) off the Coast of Alaska. Amendment
12 effectively removes federal oversight under the
Magnuson-Stevens Act, thereby allowing state
management, for three fishing areas beyond the three-
mile limit from shore. One of these areas was the Cook
Inlet EEZ, which is the focus of the lawsuit.
• Status
o The State intervened in support of NMFS to protect the
State's interest in maintaining management authority
over the area. The federal district court found in
favor of NMFS, upholding Amendment 12. After UCIDA
appealed, the Ninth Circuit reversed the district
court and held that Amendment 12 was contrary to law
to the extent it removed the Cook Inlet EEZ from the
FMP. The court explained that the MSA allows
delegation to the state under an FMP but does not
excuse the federal government's obligation to adopt an
FMP when it opts for state management. The U.S.
Supreme Court denied the State's request to hear the
case. The district court retained jurisdiction to
oversee adoption of a new plan. The North Pacific
Fishery Management Council continues to work through
the issues. The plaintiffs filed a motion to enforce
judgement, seeking the court's intervention in the
creation of the FMP and oversight of the fishery until
the plan is in place. The district court denied the
plaintiff's motion and ordered that the Council adhere
to their estimated timeline and adopt a final FMP
amendment by December 31, 2020, with final agency
action to occur within one year thereafter.
MS. ALLOWAY reviewed, Mining Case: 2008 Mining Claim Rule -
Earthworks v. U.S. Dept. of Interior (Alaska intervened in
support of defendant) (D.C. Dist. Ct. 1:09-cv-01972) AAG E.
Fossum, as follows:
• Alignment with Feds
o Aligned
• Brief Description
o Plaintiffs challenged the 2008 Mining Claim Rule.
State intervened to support the federal rule, which
eliminated some of the regulatory hurdles for miners.
• Status
o At the district court level. Briefing has been
completed and oral argument was held on October 27,
2017. Both parties have since filed supplemental
authorities. The case was reassigned to J. Rudolph
Contreras on November 27, 2019. We are awaiting the
court's decision.
4:22:23 PM
MS. ALLOWAY reviewed, Mining Case: Comprehensive Environmental
Response, Compensation, and Liability Act (CERCLA) Hard Rock
Mining - Idaho Conservation League v. Pruitt (D.C. Cir., 18-
1141) AAG E. Fossum, as follows:
• Alignment with Feds
o Aligned
• Brief Description
o The State intervened with 13 other states in a lawsuit
concerning the EPA decision not to impose a federal
requirement for financial assurances under the CERCLA
on hard rock mines. The EPA recognized that states,
such as Alaska, have robust financial bonding and
regulatory requirements in place to protect the
environment, making a federal requirement unnecessary.
Environmental groups sued the EPA, asserting that it
must adopt regulations imposing financial assurances
on hard rock mines.
• Status
o Appellant's petition for review denied by the D.C.
Circuit on July 19, 2019. The appellate court deferred
to the EPA's interpretation of setting financial
responsibility on financial risks, not risks to
health/environment; and also, that EPA's financial and
economic risk analyses were neither arbitrary nor
capricious. No petition for certiorari was filed. The
case is closed.
MS. HUNTER GRAMLING discussed, Mining Case: Wishbone Hill Mine -
Castle Mountain Coalition v. Office of Surface Mining
Reclamation and Enforcement (OSMRE) (State intervened in support
of defendant) AAG C. Moore, as follows:
• Alignment with Feds
o Not generally aligned
• Brief Description
o The State intervened to defend the validity of the
state-issued mine permits, which plaintiffs asserted
had automatically terminated.
• Status
o The district court found in favor of plaintiffs and
remanded the decision back to the agency. On remand,
the federal agency ultimately found that the State had
"good cause" to not take action because it needed
additional time to come to a decision. The State
issued a decision at the end of November 2018,
upholding the validity of the permits. OSMRE
subsequently determined that it did not have
sufficient reason to believe a violation existed, and
therefore did not issue a ten-day notice or order an
inspection. At this time, no party has requested
further review.
MS. HUNTER GRAMLING explained that the way the Surface Mining
Control and Reclamation Act (SMCRA) works is that if a state's
regulatory program and laws are consistent with SMCRA, then a
state can have primacy. Alaska has primacy over surface mining
as long as the state's programs are consistent with Office of
Surface Mining Reclamation and Enforcement (OSMRE). The Wishbone
Mine issue concerned a state permit and DOL intervened to
enforce primacy.
4:24:43 PM
MS. HUNTER GRAMLING reviewed, Oil and Gas Case: Reversal of Ban
on Offshore Development Trump v. League of Conservation Voters
(Nos. 19-35460, 19-35461. 19-35462) AAG L. Fox, as follows:
• Alignment with Feds
o Aligned
• Brief Description
o Before leaving office, former President Obama issued
an order pursuant to the 1953 Outer Continental Shelf
Lands Act indefinitely banning all leases in certain
offshore areas, including large portions of the
Chukchi and Beaufort Seas. President Trump issued an
executive order rescinding the ban, and environmental
groups have challenged the order. BOEM is gathering
comments on a new proposed five-year National Offshore
Oil and Gas Leasing Program, for years 2019-2024. The
State intervened in a lawsuit to support and defend
President Trump's executive order.
• Status
o At the 9th Circuit in the briefing stage argument
expected in June 2020. In district court on March 29,
2019 Judge Gleason granted summary judgment to the
League of Conservation Voters (and denied summary
judgment to Trump and State) ruling that the Outer
Continental Shelf Lands Act's language permitting a
president to "from time to time, withdraw" unleased
lands from disposition did not permit President Trump
to undo a previous withdrawal that had been ordered by
President Obama.
MS. HUNTER GRAMLING explained that Alaska's interest in the case
is based on Alaska having more coastline than the rest of the
states. The outer continental land shelf issues are very
important to Alaska. The case concerned withdrawal under the
Outer Continental Shelf Lands Act of certain lands from leasing.
The State's position in the case is that one of the goals of the
act was to benefit the state's infrastructure and economy.
4:25:46 PM
CHAIR MICCICHE asked if the language in the Outer Continental
Shelf Lands Act is actually as loose as saying, "Permitting a
president to from time to time withdraw unleased lands."
MS. HUNTER GRAMLING answered yes. The State and federal
government are aligned that "from time to time" means one
president can do it and another president can change it. The Act
is not meant to imply a permanent withdrawal or a permanent
grant of anything.
CHAIR MICCICHE remarked that the threshold is sort of like,
"Substantially similar."
MR. SNIFFEN reviewed, Endangered Species Act Case: Endangered
Species Act Rules - California v. Bernhardt, (N.Cal. Dist. Ct.,
4:19-cv-06013-JST); Animal Legal Defense Fund v. Bernhardt,
(N.Cal. Dist. Ct., 4:19-cv-06812-JST0; and Center for Biological
Diversity v. Bernhardt, (N.Cal. Dist. Ct., 4:19-cv05206-JST0 AAG
C. Brooking, as follows:
• Alignment with Feds
o Aligned
• Brief Description
o Three lawsuits were filed challenging regulations
adopted in 2019 by the US Fish and Wildlife Service
and National Marine Fisheries Service. Among other
things, the rules clarified the meaning of
"foreseeable future" in determining whether a species
is threatened, allows economic factors to be
considered while still making decisions based on the
best scientific and commercial data, and provided
guidance on when to consider unoccupied areas as
critical habitat for listed species.
• Status
o In December 2019 and January 2020, Alaska joined
twelve other states to move to intervene in all three
cases to defend the new rules.
MR. SNIFFEN explained that a few years ago, Alaska joined about
15 other states in a lawsuit challenging EPA rules that expanded
the types of areas that can be designated as critical habitat,
and that under those rules there was little if any connection to
the presence of a listed species. For example, the lawsuit
listed Alaska polar bear and ringed seals as threatened even
though the populations were healthy. The dismissal of that
lawsuit lead to new rules that were much more reasonable. The
new rules became final in 2019. Alaska joined 12 other states to
intervene and help defend the new rules under attack by
environmental groups.
4:28:59 PM
MR. SNIFFEN reviewed, Endangered Species Act Case: Seismic
testing in Cook Inlet - Cook Inlet keeper et al., v. Ross, et
al. (D. Alaska 3:19-cv-00238-SLG) AAG C. Brooking, as follows:
• Alignment with Feds
o Aligned
• Brief Description
o Cook Inletkeeper and others sued to challenge
permission given to Hilcorp Alaska to conduct seismic
testing in Cook Inlet. The testing is permitted by the
National Marine Fisheries Service under the Marine
Mammal Protection Act and the Endangered Species Act.
The permission includes conditions to avoid and limit
impacts on beluga whales. Cook Inlet belugas are
listed as a distinct population segment.
• Status
o In December 2019 the court granted Alaska's motion to
intervene. The federal record is scheduled to be filed
by February 7, 2020.
CHAIR MICCICHE asked if alignment with the federal government
sometimes changes with administrations.
MR. SNIFFEN answered yes.
CHAIR MICCICHE thanked the DOL presenters. He said his office
will look for the DOL link for the public to keep up with
federal cases.
He noted that DOL has a heavy caseload. He asked how much of the
litigation is associated with Alaska being an infant state with
an agreement such as ANILCA as opposed to older states that have
settled their land and water issues.
4:31:14 PM
MR. SNIFFEN explained that Alaska is fairly unique in a lot of
ways. It has more coastline than any other state, it gets
involved in issues that other states do not get involved with,
it has the Alaska Native Claims Settlement Act (ANCSA) that is
unique to Alaska, and it has unique statehood issues like
navigability that seem to be prolific. He concurred that many of
the litigation issues are associated with Alaska being unique
and new.
SENATOR REVAK asked how much the federal government might have
spent to get its $400 back in the Knik River/Eklutna, Inc.
Selection Application case.
MS. ALLOWAY answered that she has no idea.
SENATOR REVAK asked for the duration of the case.
MS. ALLOWAY answered that it went on for over a year.
CHAIR MICCICHE remarked that the federal government paid more
than $400.
HB 122-FUNTER BAY MARINE PARK: UNANGAN CEMETERY
4:32:53 PM
CHAIR MICCICHE announced that the final order of business would
be HOUSE BILL NO. 122 am, "An Act relating to the Funter Bay
marine park unit of the state park system; relating to
protection of the social and historical significance of the
Unangax cemetery located in Funter Bay and providing for the
amendment of the management plan for the Funter Bay marine park
unit; and providing for an effective date."
4:33:25 PM
REPRESENTATIVE SARA HANNAN, Alaska State Legislature, Juneau,
Alaska, sponsor of HB 122, said Ms. Meachum will present the
bill to committee members.
4:33:43 PM
HUNTER MEACHUM, Staff, Representative Sara Hannan, Alaska State
Legislature, Juneau, Alaska, explained that HB 122 would
transfer land from the Division of Mining, Land and Water to the
Division of Parks & Outdoor Recreation for land management and
protection of the Unangax cemetery in Funter Bay. She detailed
that the Unangax cemetery has 30-marked graves and a number of
unknown grave sites. She noted that there is no additional cost
to the state from the bill.
4:34:46 PM
CHAIR MICCICHE opened public testimony.
He noted that many entities have submitted letters in support of
the bill. He said HB 122 is a very important bill and he looked
forward to hearing public testimony.
4:35:18 PM
RICHARD ZACHAROF, representing self, St. Paul Island, Alaska,
testified in support of HB 122. He said he represents the
communities of St. Paul Island and St. George Island. He
detailed that he is a tribal council member and a tribal
corporation representative. He noted that representatives from
the Pribilof Islands were in attendance.
He disclosed that 10 percent of the Unangax population passed
away at Funter Bay. He said the legislation is important to the
Pribilof Island communities for protecting and preserving the
burial site of loved ones and family members that perished at
Funter Bay.
4:36:49 PM
NIKO SANGUINETTI, Curator of Collections & Exhibits, Juneau
Douglas City Museum, Juneau, Alaska, testified in support of HB
122. She said she has been working with a group in Juneau and
various community members from St. Paul and St. George to work
on not only HB 122, but added recognition regarding the Funter
Bay internment camps as well. She noted that the museum will do
its largest exhibit of the year on the internment camps to
address a very important part of Alaska's history. She said the
resources around the cemetery will preserve the site, provide a
buffer zone, and limit more destruction in the future.
4:38:46 PM
JOEL BENNETT, representing self, Juneau, Alaska, testified in
support of HB 122. He disclosed that he is a property owner in
Funter Bay and his three-acre site abuts the Unangax cemetery.
He said he has owned his property for over 30 years and is
intimately familiar with the area around the cemetery. He said
it is essentially low-quality timber with no mining development
since the 1930s. He added that the U.S. Forest Service
designated that area as remote recreation and there has never
been consideration for resource development for timber harvest.
He summarized that from a perspective of perhaps the closest
landowner to the cemetery, there is not a conflict. He said the
bill is a great step forward to recognize the sad history as
well as the significance of the graveyard to the Pribilof
people.
CHAIR MICCICHE remarked that his initial concerns with the bill
pertained to transferring the surrounding property into the park
area. He noted that his responsibility is to ask questions for
all Alaskans, not just those at Admiralty Island. He said he is
no longer concerned about transferring the land and is convinced
that the bill is the right move.
4:42:38 PM
SENATOR MICCICHE closed public testimony.
4:43:03 PM
SENATOR KIEHL moved to report HB 122 am, work order 31-
LS0637\U.A, from committee with individual recommendations and
attached zero fiscal note.
4:43:18 PM
CHAIR MICCICHE said there being no objection, HB 122 am moved
from the Senate Resources Standing Committee.
4:43:45 PM
There being no further business to come before the committee,
Chair Micciche adjourned the Senate Resources Standing Committee
meeting at 4:43 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB 122 Letter of Support Sealaska Heritage 02.05.2020.pdf |
SRES 2/12/2020 3:30:00 PM |
HB 122 |
| DOL Presentation on Federal Issues and Conflicts 02.06.2020.pdf |
SRES 2/12/2020 3:30:00 PM |
Dept. of Law Presentation |
| HB 122 Written Testimony Joel Bennett 02.12.2020.pdf |
SRES 2/12/2020 3:30:00 PM |
HB 122 |