Legislature(2021 - 2022)BUTROVICH 205
03/25/2022 03:30 PM Senate RESOURCES
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| Audio | Topic |
|---|---|
| Start | |
| Department of Law Presentation on Statehood Defense | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| *+ | SB 239 | TELECONFERENCED | |
| *+ | SB 240 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| + | TELECONFERENCED | ||
ALASKA STATE LEGISLATURE
SENATE RESOURCES STANDING COMMITTEE
March 25, 2022
3:41 p.m.
MEMBERS PRESENT
Senator Peter Micciche, Vice Chair
Senator Click Bishop
Senator Jesse Kiehl
Senator Scott Kawasaki (via teleconference)
MEMBERS ABSENT
Senator Joshua Revak, Chair
Senator Gary Stevens
Senator Natasha von Imhof
COMMITTEE CALENDAR
DEPARTMENT OF LAW PRESENTATION ON STATEHOOD DEFENSE
- HEARD
SENATE BILL NO. 239
"An Act approving and ratifying the sale of royalty oil by the
State of Alaska to Petro Star Inc.; and providing for an
effective date."
- SCHEDULED BUT NOT HEARD
SENATE BILL NO. 240
"An Act approving and ratifying the sale of royalty oil by the
State of Alaska to Petro Star Inc.; and providing for an
effective date."
- SCHEDULED BUT NOT HEARD
PREVIOUS COMMITTEE ACTION
No previous action to record
WITNESS REGISTER
TREG TAYLOR, Attorney General
Department of Law (DOL)
Anchorage, Alaska
POSITION STATEMENT: Introduced the Department of Law
presentation on statehood defense.
CORRI FEIGE, Commissioner
Department of Natural Resources
Anchorage, Alaska
POSITION STATEMENT: Spoke about navigability during the
Department of Law presentation on statehood defense.
RON OPSAHL, Assistant Attorney General
Natural Resources Section
Civil Division
Department of Law
Anchorage, Alaska
POSITION STATEMENT: Discussed litigation related to navigable
waters during the Department of Law presentation on statehood
defense.
JASON BRUNE, Commissioner
Department of Environmental Conservation
Anchorage, Alaska
POSITION STATEMENT: Spoke about waters of the US during the
Department of Law presentation on statehood defense.
JULIE PACK, Assistant Attorney General
Environmental Section
Civil Division
Department of Law
Anchorage, Alaska
POSITION STATEMENT: Discussed litigation and the importance of
the Waters of the United States (WOTUS) comment letter during
the Department of Law presentation on statehood defense.
CODY DOIG, Assistant Attorney General
Environmental Section
Civil Division
Department of Law
Anchorage, Alaska
POSITION STATEMENT: Spoke about ANCSA contaminated sites during
the Department of Law presentation about statehood defense.
DOUG VINCENT-LANG, Commissioner
Alaska Department of Fish and Game (ADF&G)
Juneau, Alaska
POSITION STATEMENT: Provided the fish and game perspective
during the Department of Law presentation about statehood
defense.
CHERYL BROOKING, Senior Assistant Attorney General
Natural Resources Section
Civil Division
Department of Law
Anchorage, Alaska
POSITION STATEMENT: Discussed litigation related to the state's
right to manage hunting and fishing during the Department of Law
presentation about statehood defense.
ACTION NARRATIVE
3:41:43 PM
VICE CHAIR PETER MICCICHE called the Senate Resources Standing
Committee meeting to order at 3:41 p.m. Present at the call to
order were Senators Kiehl, Kawasaki (via teleconference), and
Vice Chair Micciche. He asked the record to reflect that the
committee did not have a quorum, but one wasn't required because
no official business would be conducted. Senator Bishop joined
the committee during the course of the meeting.
^Department of Law Presentation on Statehood Defense
Department of Law Presentation on Statehood Defense
3:42:40 PM
VICE CHAIR MICCICHE announced the Department of Law presentation
on statehood defense. He welcomed the presenters.
3:43:22 PM
TREG TAYLOR, Attorney General, Department of Law (DOL),
Anchorage, Alaska, began the presentation by introducing the
Department of Law staff who would assist in the presentation. He
thanked the commissioners who were present, calling it an
illustration of the importance of statehood defense to the
various agencies. This team meets once per week on the various
issues on statehood defense. He also highlighted that the DOL
team meets weekly on this issue, had filed some successful
lawsuits, and had more planned.
3:44:50 PM
ATTORNEY GENERAL TAYLOR advanced to slide 2 and described the
five main components of the statehood defense strategy:
• Initiate & Defend Litigation
• Partner with Resource States Department of Law partners
with other states on letters, comments, and litigation.
• Engage With Federal Administrative Processes This is done
through comment letters, hearings and other outreach to
federal sister agencies.
• Submit Amicus Briefs In Ongoing Litigation This is usually
in cases where there are tangential issues that could
affect outcomes in Alaska. He noted the specific issues the
state has regarding the Alaska Native Claims Settlement Act
(ANCSA) and the Alaska National Interest Lands Conservation
Act (ANILCA.)
• Enlist Experts For Environmental Impact Studies Having
better science is how the state has achieved victory in
many of its cases.
3:46:32 PM
ATTORNEY GENERAL TAYLOR advanced to slide 3 and read the
definition of statehood defense:
Defending the rights and privileges promised to the
Citizens of the State of Alaska upon the State's
admission into the Union, especially concerning the
use, conservation, and management of the State's
lands, waters, and natural resources.
He stated that the commissioners would speak to the reasons for
statehood defense, the issues the state is facing, and why this
is important to Alaskans and the state.
3:47:09 PM
VICE CHAIR MICCICHE said he wonders whether some of the
statehood defense issues the state faces stem from federal
agencies' basic lack of knowledge about ANILCA, ANCSA, and the
statehood compact. These make Alaska different and prevent it
from fitting with the federal government's standard blueprint
for dealing with states.
ATTORNEY GENERAL TAYLOR said that's part of it and it's also
that Alaska is somewhat off the beaten path so it's a matter of
out of sight, out of mind. But there's also a begrudging
resistance to do what's right. He said he's come to that
conclusion based on the uphill battles Alaska has faced on
issues that are very clear from a legal standpoint. In addition
to ANILCA, ANCSA, and the Statehood Act, Alaska's rights come
from the equal footing doctrine, the Tenth Amendment, and the
Submerged Lands Act, all of which outline Alaska's rights
relating to lands, and resource development. These are the laws
the state looks at to support its arguments.
3:49:51 PM
ATTORNEY GENERAL TAYLOR stated that in the interest of time, he
was skipping to slide 6, Multi-State Efforts - 19 ongoing cases.
He directed attention to the list that included:
Affordable Clean Energy Rule
Endangered Species Act Rule
Oil and Gas Drilling Ban
Emissions Regulation (Clean Air Act)
Federal Energy Regulatory Commission (FERC)
Social Cost of Carbon
He said the state tries to work with its federal counterparts
through personal relationships, letter writing, providing
science, and engaging in federal processes and comment periods
as proscribed by administrative rules. This takes considerable
resources of talent and money and still doesn't always work out,
so the state has to be in a position to fight back when
necessary.
3:51:04 PM
ATTORNEY GENERAL TAYLOR advanced to slide 8 and described his
general strategy for statehood defense:
Engage Alaska resources and expertise, which is letting
Department of Law attorneys take on these cases as the experts
in the areas.
Partner with others when there's the ability to do so. This can
be partnering with nongovernmental organizations (NGO),
businesses, and other states that have a lot of federal lands,
are resource-development minded, and have similar views on
policy issues. Joining with others in some litigation and
relying on their expertise has been a cost-saving measure that
has made it possible for the state to engage in many more cases.
Outsource when necessary is something that DOL is increasingly
facing as the number of cases increase. He said he foresees the
department increasingly engaging outside counsel because the
cases are coming at such a rapid pace. Over the last year, DOL
has seen a 30 percent increase in these cases. The team meets
weekly and it seems that there's a new issue to look into every
week.
ATTORNEY GENERAL TAYLOR deferred to Corri Feige for the next
part of the presentation.
3:53:15 PM
CORRI FEIGE, Commissioner, Department of Natural Resources,
Anchorage, Alaska, stated the following:
We'll begin this discussion talking about
navigability. Alaska uses our navigable lakes and
rivers differently than any other state. They are
literally the arteries that connect our communities
and they facilitate commerce in this state.
When we are talking about navigability, what we're
talking about is that the state has ownership of the
submerged lands. That's everything below the ordinary
high water mark. And those lands in Alaska, reside
under roughly 800,000 river miles of navigable in fact
rivers, and below over 30 million acres of lakes
across the state. These submerged lands came to the
state at statehood, and yet the federal government
refused and continues to refuse to recognize the
state's ownership and the management authority since
then. This is negatively impacting the rights of
Alaska citizens and this is why Alaskans should care.
They have the right to the full use and enjoyment that
was granted to them of the state submerged lands at
the time of statehood.
And so our citizens have been harassed and even cited
by federal law enforcement while undertaking legal
activities on state submerged lands, simply because
the federal government refuses to acknowledge the
state ownership and the rights conveyed to us under
ANILCA.
And it's this type of wrongful bullying that has led
to certain litigations, in part the Sturgeon v. Frost
litigation and others. After more than 60 years of
statehood, during which time the state has vigorously
engaged with the Department of the Interior on
administrative and other very collaborative measures
to remove cloud of title from the state submerged
lands, this is what those measures have resulted in.
3:55:40 PM
COMMISSIONER FEIGE directed attention to the state map on slide
10 and explained that the rivers and lakes that are colored blue
are where the Department of Interior concurs with the state that
those are navigable waters. The areas colored pink are those
that remain undetermined by federal agencies. She highlighted
that the federal government acknowledges the state's clear title
to submerged lands on just nine percent of the 800,000 river
miles, and only 16 percent of the 30 million acres of state lake
lands. She said the federal government is particularly resistant
to recognizing the state's ownership and management authority
within conservation system units such as the Yukon Delta
National Wildlife Refuge and the Lake Clark National Park and
Preserve. This was the reason for the governor's unlocking
Alaska initiative last year.
COMMISSIONER FEIGE advanced to the state map on slide 11 that
stands in stark contrast to the previous map. It shows what the
state has determined to be state-owned navigable waters, and
there are no areas colored pink. These are all rivers that the
state asserts are navigable, based on criteria derived from case
law and field data. Regardless, the state must continue to
litigate to remove the cloud of title to state owned submerged
lands.
3:57:19 PM
VICE CHAIR MICCICHE asked if she was saying that the state has
management authority over all navigable waters in Alaska.
COMMISSIONER FEIGE answered that is correct and there is
criteria and well defined case law that supports that those
lands belong to the state.
VICE CHAIR MICCICHE commented that slide 10, STATE-OWNED
NAVIGABLE WATERS ACKNOWLEDGED TO DATE was a strange heading.
COMMISSIONER FEIGE responded that the federal government has
only acknowledged as navigable the waters colored in blue.
VICE CHAIR MICCICHE offered his view that it should say
acknowledged by the federal government to date.
COMMISSIONER FEIGE acknowledged the point.
3:58:40 PM
COMMISSIONER FEIGE advanced to the picture on slide 12 to
explain the types of rivers and lakes that the federal
government does not concur are navigable. The picture is of two
BLM employees paddling an inflatable boat on a portion of the
Fortymile River in the eastern Interior. Nevertheless, BLM
asserts this river is not navigable, so settling the dispute
will require litigation.
COMMISSIONER FEIGE deferred to Ron Opsahl to talk about specific
cases.
3:59:34 PM
RON OPSAHL, Assistant Attorney General, Natural Resources
Section, Civil Division, Department of Law, Anchorage, Alaska,
stated that the river depicted on slide 12 is illustrative of
the type of rivers DOL is choosing to litigate. They are clearly
navigable and despite BLMs assertion, its rangers routinely
patrol these rivers in boats.
4:00:51 PM
SENATOR BISHOP joined the meeting.
4:01:08 PM
MR. OPSAHL directed attention to the list of rivers on slide 13
that the state has chosen to litigate the question of
navigability:
• Kuskokwim River
? State of Alaska (Interior Board of Land
Appeals)
• Middle Fork and North Fork of Fortymile River
? Alaska v. United States (U.S. Dist. Alaska)
• Middle Fork of Koyukuk River, Dietrich River, and
Bettles River
? Alaska v. United States (U.S. Dist. Alaska)
• Mulchatna River, Chilikadrotna River, Twin Lakes,
and Turquoise Lake
? Alaska v. United States (not yet filed,
anticipated May 2022)
• Sarkar Canoe Route
? Alaska v. United St
MR. OPSAHL stated that the latest update on the Kuskokwim
litigation is that IBLA reversed BLM's non-navigability
determination last September on a 14.5 mile segment near
McGrath. In January of this year BLM acknowledged that and
issued the recordable disclaimer of interest (RDI) for that
segment, so the river is now recognized as state-owned from
statehood.
The litigation of the Middle Fork and North Fork of the
Fortymile River has been ongoing for several years. The case is
in the discovery stage and about 16 expert in fact witness
depositions have been conducted. Some of the depositions
required out of state travel because the federal government
would not produce the witnesses locally for DOL to depose.
Dispositive briefing is anticipated to begin in early May with
trial probably in the spring of 2023.
The Department of Law recently filed litigation to quiet title
segments of the Koyukuk, Dietrich, and Bettles rivers. The
United States has filed a motion to dismiss that case. The
motion is fully briefed and DOL is waiting for a decision or
setting of oral argument on the motion.
The Department of Law has noticed its intent to sue under the
Quiet Title Act for several rivers and lakes in the Lake Clark
vicinity, including the Mulchatna River, Chilikadrotna River,
Twin Lakes, and Turquoise Lake. DOL anticipates it will file a
complaint in May and the notice of intent will run at the end of
April.
The Department of Law recently filed notice of intent to sue
under the Quiet Title Act for the Sarkar Canoe Route in the
Tongass National Forest. This will run until about the middle of
September.
4:03:54 PM
VICE CHAIR MICCICHE asked why DOL hasn't filed a case that
outlines the entire state so these questions can be settled in
one fell swoop as opposed to these one-offs.
MR. OPSAHL answered that he'd like to do that but these cases
are very fact and labor intensive cases and the state would go
broke if it tried to do it in one fell swoop. The hope is that
the Department of Interior will eventually recognize that Alaska
was granted these rights at statehood, and the case law will be
so well established that there is no longer any question. The
department currently is litigating the most minor of questions
in these cases. For example, BLM refuses to agree what boat
should be considered a criteria boat to determine navigability.
In the Fortymile litigation it will be a serious contention
whether rafts can be considered, what the draft can be, how deep
the water has to be, and for what portions of the year. There
aren't real court determinations on these questions because the
federal government forces the state to go through the most
expensive portions of the litigation before disclaiming interest
on the eve of summary judgement argument or trial. This avoids a
court determination that would settle some of these issues.
MR. OPSAHL explained that DOL's strategy is to focus on families
of rivers, picking a point and working upstream to collect as
many rivers as possible into the particular litigation. In the
Fortymile case, the department worked on the Mosquito Fork and
Denison Fork in separate cases, and is now working on the middle
and north forks. That approach has changed to try to capture as
much in the litigation as possible to make it more cost
effective. The department now is trying to work on the Koyukuk,
Dietrich, and Bettles rivers together. In the Mulchatna family
the work is from the headwaters to as far down as is navigable
and that hasn't been determined. It's a balance between size and
manageable cost.
4:07:16 PM
COMMISSIONER FEIGE added that the court rendered a decision of
bad faith against the federal government for making the state
bring cases on rivers like the Denison portion of the Fortymile
when it was obvious that the river met the criteria for
navigability. She noted that the state recovered more than
$660,000 in court costs in that case. She emphasized that DNR
continues to work to ensure that these cases have solid
scientific underpinnings to support any litigation that is
required.
4:08:32 PM
SENATOR BISHOP asked whether federal publications of historical
facts about head of navigation are used to help the state make
its case.
COMMISSIONER FEIGE answered that those documents definitely are
used as part of the record in making in making determinations of
navigable in fact.
COMMISSIONER FEIGE advanced to slide 15 to discuss the state's
second area of litigation, which is access to state lands. She
provided the following explanation:
Access means a lot of things, and it does include the
complex suite of special rights that the state was
provided in ANILCA. These go to support our economy,
our way of life, our unique geography, and our lack of
infrastructure.
The cases in the land access topic area are about
statehood rights, economic development,
infrastructure, and community access.
These cases go to support programs like our Alaska
Native Vietnam veterans having access to a broader
suite of lands, which they can select their own
allotments from. These cases include the Ambler Access
Project, which is recognized in ANILCA as a
transportation corridor and which will facilitate the
next generation of resource development opportunities
in the state. This project also has national security
implications for the long-term mineral security of the
United States.
The Izembek Road case is unfortunately now a multi-
generational struggle to let an isolated community
build a road to an airport, something that just about
everywhere else in the country simply takes for
granted.
COMMISSIONER FEIGE asked Mr. Opsahl to speak to the cases listed
on slide 15 and the advancements in the Izembek case:
• King Cove Dep't of Interior land exchange (Izembek
Road)
? Friends of Alaska Nat'l Wildlife Refuges v. Haaland
(9th Cir.)
• Defense of federal rights-of-way to access Ambler
Mining District (Ambler Road)
? Northern Alaska Environmental Center v. Haaland &
Alatna Village Council v. Heinlein (U.S. Dist.
Alaska)
• Challenge to delay of revocation of ANCSA Section
17(d)(1) withdrawals covering 28 million acres of
federal public lands
? Alaska v. Haaland (U.S. Dist. Alaska)
4:10:41 PM
MR. OPSAHL corrected the record stating that the bad faith case
was on the Mosquito Fork of the Fortymile River. He said he
informed the judge hearing the Koyukuk case about that decision
and the motion to dismiss as evidence of BLM's policies and how
it is handling these cases.
MR. OPSAHL reported that on the Izembek Road case the state
received a favorable ruling from the Ninth Circuit Court of
Appeals that reversed the district court's invalidation of the
land exchange. The decision also included a good discussion of
the history of ANILCA and the compromise it represents between
conservation and development.
The update on the Ambler Road is that the Department of the
Interior filed a motion for a voluntary remand. DOL is
strenuously opposing the motion arguing that remand is
unnecessary because the record has more than enough information
and analysis to uphold the decisions to issue the rights-of-way.
AIDEA joined the case and the other interveners to a lesser
extent. They still opposed the motion for remand. Plaintiffs are
also opposing the motion for remand, arguing it doesn't go far
enough. He called it a case of wanting their cake and eating it
too.
The case involving the revocation of ANCSA Section 17(d)(1)
withdrawals covering 28 million acres of federal public lands
was dismissed March 14 after the district court held that there
was no final agency action and it was necessary to wait until
the two year reanalysis period had lapsed and BLM had issued a
new decision before a case could be brought. DOL views the two-
year delay as a new withdrawal, particularly since the Interior
Secretary had issued and signed orders, although they weren't
published in the federal register.
MR. OPSAHL said he believes that an environmental assessment was
released yesterday dealing with Vietnam veteran issues in
basically the same areas. He had not had time to review the
assessment.
4:14:49 PM
COMMISSIONER FEIGE stated that the last category that DNR has
engaged in litigation on statehood defense is oil and gas
development. She stated the following:
Unfortunately, oil and gas development in Alaska,
particularly on the North Slope, has long been a
target of extensive litigation by environmental
groups, and that's nothing new. But what is new today
is the fact that we find many of the same senior
litigants who were leading those very suits against
the state and our projects, now holding leadership
positions within the Biden Administration Department
of Interior, BLM etc. And they're now pushing to
restrict from within and from leadership positions in
the federal administration, pushing to restrict,
reduce or eliminate production from federal lands in
Alaska altogether. We see this happening in the 1002
area, we see it in the National Petroleum Reserve
Alaska, and in the Outer Continental Shelf,
particularly for the 1002 area and the NPRA. In order
to protect states' interest the state has had to join
in litigation that seeks to delay or restrict
activities on valid leases or seeks to delay and alter
terms of already approved projects, projects where we
have had a record of decision.
Current events have certainly highlighted the
shortcomings and shortsightedness of an Alaska focused
decision, but we unfortunately are not expecting a
change to this policy anytime soon. Consequently, the
state has had to take up these cases to prevent the
Biden Administration from settling behind closed
doors. And if we ever want to see these resources
brought into production, we must be at the table.
4:16:49 PM
MR. OPSAHL provided updates on the cases listed on slide 17:
• Defense of National Petroleum ReserveAlaska
Integrated Activity Plan
? National Audubon Society v. Haaland & Northern
Alaska Environmental Center v. Haaland (U.S.
Dist. Alaska)
He explained that a number of environmental and tribal
nongovernmental organizations (NGO) are suing to set aside the
2020 integrated activity plan (IAP). The case is stayed and the
Department of Interior has indicated that it intends to issue a
new record of decision to reinstate the prior IAP with some 2020
leasing stipulations. DOL has yet to see what those may be or
how they will be interjected or enforced. DOL is also looking at
the new biological opinion that was issued earlier in March to
see what was changed from the 2013 biological opinion,
particularly as it involves mitigation measures for the various
animal species that were discussed.
• Challenge to Bureau of Land Management de facto
suspension of processing pre-development activity
permits
? Alaska Industrial Development and Export
Authority v. Biden (U.S. Dist. Alaska)
MR. OPSAHL explained that this second case is about AIDEA's
oil and gas leases in the 1002 area of ANWR. AIDEA
submitted permit applications to do predevelopment work,
including archeological clearing and survey work, but BLM
said it would not process the applications until other
litigation had run its course. AIDEA sued and DOL
intervened as a plaintiff and plaintiffs from the next case
intervened as defenders. DOL is opposing the intervention
arguing that the Gwich'in Steering Committee, the National
Audubon Society, and the Native Village of Venetie Tribal
Government don't have an interest in this case because it's
a contract dispute about lease terms between BLM and AIDEA.
• Defense of federal oil and gas leasing program
for Arctic National Wildlife Refuge
? Gwich'in Steering Committee v. Haaland,
National Audubon Society v. Haaland, Native
Village of Venetie Tribal Government v.
Haaland, & Washington v. Haaland (U.S. Dist.
Alaska)
MR. OPSAHL said this case is larger in scope in that it is
about the underlying decision to have a leasing program.
This cases is stayed pending review, and a new
environmental impact statement (EIS) is being prepared. He
said it's unclear how long this process may take, which
underscores the lack of certainty associated with these
cases.
• Defense of Willow Project Master Plan
? Sovereign Inupiat for a Living Arctic v. Bureau
of Land Management & Center for Biological
Diversity v. Bureau of Land Management (U.S.
Dist. Alaska)
MR. OPSAHL explained that the Willow case was remanded for
additional National Environmental Policy Act of 1969 (NEPA)
analyses of global greenhouse gases and polar bears. He said
this illustrates why the state's participation is crucial and
brings value to these cases. In this case the plaintiffs brought
about a dozen cases, ten of which were not successful. The cases
that were successful had the same issues as the Hilcorp Liberty
Project decision. By intervening, DOL was able to limit the
remand and defend the [Section 404 Clean Water Act] permit.
4:22:31 PM
MR. OPSAHL opined that this shows that the definition of a win
has to be viewed in context in these cases. It's difficult to
get every plaintiff claim rejected, but if the state doesn't
step in, odds are that more issues will be remanded.
VICE CHAIR MICCICHE recognized Commissioner Brune as the next
presenter.
4:23:36 PM
JASON BRUNE, Commissioner, Department of Environmental
Conservation (DEC), Anchorage, Alaska stated that DEC, DOL, DNR,
and ADF&G meet weekly to address the new issues the state is
forced to defend. He gave credit to the agency staff who were
doing this amazing work.
COMMISSIONER BRUNE began the presentation highlighting the size
and scope of Alaska waters:
ALASKA WATERS:
• Nearly 900,000 miles of navigable rivers and
streams
• 22,000 square miles of lakes (3 million lakes
larger than 5 acres)
• Nearly 27,000 miles of coastline (more coastline
than Lower 48 combined)
He emphasized that no other state will be affected more if there
is any change in the definition of waters in the US.
Furthermore, if the state doesn't specifically mention issues
during any comment period, it won't have standing if and when
the definitions are changed, as they have in each of the last
three administrations.
4:25:44 PM
COMMISSIONER BRUNE advanced to slide 20, Waters of the United
States (WOTUS) that shows that 43 percent of the surface area of
Alaska is wetlands, which is 63 percent of the total wetlands in
the US. He stated that less than one quarter of one percent of
Alaska's nearly 175 million acres of wetlands have been
developed. By comparison, the Lower 48 has developed over half
of the 200 million acres of wetlands it used to have. When the
Biden Administration talked about again changing the definition
of WOTUS, DOL submitted comment letters and ultimately requested
a regional roundtable to prevent Alaska from being considered
together with nine other West Coast states. The administration
agreed and a WOTUS regional roundtable was held in Anchorage on
February 25 of this year. He deferred to Julie Pack to discuss
what was included in the comments and the statements that were
made.
4:27:07 PM
JULIE PACK, Assistant Attorney General, Environmental Section,
Civil Division, Department of Law, Anchorage, Alaska, stated
that roundtables with federal agencies are part of the effort to
narrow the expansion of the definition of WOTUS in Alaska. She
said this is important because the more expansive the rule, the
less control Alaska has over project and mitigation specifics.
MS. PACK stated that DOL is challenging the WOTUS definition on
1) rule making proceedings and 2) the US Supreme Court case
Sacket v. EPA. DOL formally requested Alaska-specific exclusions
from the rule for permafrost wetlands, forested wetlands,
wetland mosaics, and other water category. She said these mirror
the data gap in the federal science underpinning the federal
definition of WOTUS. If these exclusions are granted, many
Alaska wetlands would return to state control. If the exclusions
are not granted, Department of Law's comment letter is the
foundation for a future challenge that the WOTUS definition is
arbitrary and capricious as it is applied to Alaska.
MS. PACK conveyed that the Department of Law was also supporting
a court challenge to the federal agency's authority to craft
such an expansive rule to begin with. In Sacket v. EPA, the US
Supreme Court will decide whether or not the test the Ninth
Circuit Court of Appeals used was appropriate for determining
whether wetlands are WOTUS. The strategies differ but both
challenges are aimed at limiting federal power and federal
agency discretion over wetlands in Alaska. The goal is for
Alaska to have more control over waters in the state.
4:29:39 PM
SENATOR KIEHL commented on the court's unpredictability on water
cases, and cited the surprising decision in Maui v. Hawaii
Wildlife Fund as an example. He then suggested everyone keep in
mind that water tends to flow down slope continually connecting
with other water bodies.
VICE CHAIR MICCICHE questioned whether settling these arguments
once and for all would require the repeal of ANILCA.
4:31:00 PM
MR. OPSAHL responded that the term "navigable waters" is used in
many contexts, but the broadest definition is in the Commerce
Clause of the US Constitution. ANILCA really isn't at issue
because the Commerce Clause will trump anything in ANILCA based
on constitutional versus statutory definition.
VICE CHAIR MICCICHE asked whether the definition in the Commerce
Clause wasn't more closely related to an interstate highway
definition than a small stream that isn't connected to other
waters.
MR. OPSAHL answered yes. The potential for federal overreach
into this area is why its so important for Alaska to accurately
define the extent of WOTUS within its boundaries. The definition
should be limited to every extent possible to recognize that
Alaska is unique. It has more wetlands and less development than
the rest of the Lower 48 combined. He opined that the tendency
for the Corps of Engineers and EPA to use Alaska as a wetlands
bank for the rest of the US diminishes the state's ability to
develop basic infrastructure. He offered his view that this was
why it was so important for the state to participate in cases
like Sacket.
4:34:54 PM
VICE CHAIR MICCICHE summarized his understanding that the
foregoing illustrates the importance of the February 7, 2022
comment letter in isolating the obviously non-navigable waters
of permafrost wetlands, forested wetlands, wetland mosaics, and
other waters from the Commerce Clause waters. He asked if that
was accurate.
MS. PACK confirmed that was what DOL was arguing. Those waters
clearly are not navigable and the Commerce Clause authority is
based on navigability. That is why those exclusions are
requested.
4:36:15 PM
SENATOR KIEHL asked whether the Clean Water Act didn't discuss
significant nexus to navigable waters.
MS. PACK clarified that the term "significant nexus" has no
legitimate connection to the Clean Water Act or the Commerce
Clause authority that undergirds the Clean Water Act. She
advised that US Supreme Court Justice Rehnquist first coined the
term, Justice Kennedy picked it up in the 2006 Rapanos v. United
States decision, and since then it has snowballed into the rule
today.
SENATOR KIEHL thanked her for clarifying the state's argument.
4:37:23 PM
COMMISSIONER BRUNE added that he would ensure that the members
receive a copy of the letter Ms. Pack composed regarding DOL's
position on definitions of WOTUS.
COMMISSIONER BRUNE turned to the topic of ANCSA contaminated
sites and the associated litigation. He said the state is on the
offensive because ANCSA lands were contaminated before
conveyance. He described the letter writing efforts he'd been
part of since the Obama Administration to get these lands
cleaned up through the ANCSA resource manager's group. These
multiple efforts have been unsuccessful and on the eve of the
th
50 anniversary of ANCSA, the state made the decision to file
548 notices of intent to sue to force action from the Department
of Interior (DOI). The response to Governor Dunleavy's letter
was that BLM had no continuing obligation to document or
remediate contaminated sites conveyed under ANCSA unless future
documentation showed that the contamination occurred while BLM
managed or controlled a particular parcel. He deferred further
explanation to Cody Doig who was leading this effort.
4:39:43 PM
CODY DOIG, Assistant Attorney General, Environmental Section,
Civil Division, Department of Law, Anchorage, Alaska, stated
that this case is a little different than the ones discussed
previously because the complaint has yet to be filed.
Nevertheless, Department of Law sent 548 notices of intent to
sue under both the Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA) and the Resource
Conservation and Recovery Act (RCRA), while also reserving the
right to bring other claims. The notice period affords the
federal government the opportunity to avoid litigation through
settlement. DEC hired outside counsel to assist in these
conversations and potentially in litigation. Outside counsel and
the Department of Law have had three conversations regarding the
notices of intent to sue. In the first two meetings, the
Department of Justice tried to gain insight on the state's legal
theory underpinning these claims. In the third meeting DOI and
EPA indicated they were working on a plan to address some or all
of the issues, but there were no details about the plan or a
timeline for when the state could expect to see the plan.
Additional meetings are anticipated and the federal government
will be encouraged in writing to provide the details and respond
timely when the state comments on the proposed plan.
4:42:03 PM
SENATOR BISHOP commented that DOI's response that BLM had no
continuing obligation for contaminated sites conveyed under
ANCSA was an insult given that elders living on the North Slope
are able to point out the contamination from federal activities
pre-statehood.
COMMISSIONER BRUNE responded that he could not agree more.
VICE CHAIR MICCICHE asked what proportion of contaminated sites
in Alaska were on ANCSA lands.
4:43:38 PM
MR. DOIG answered that all 548 notices of intent to sue were
attached to ANCSA lands.
VICE CHAIR MICCICHE asked if there were contaminated sites that
were not on ANCSA lands.
MR. DOIG answered yes.
VICE CHAIR MICCICHE wondered whether the Bureau of Indian
Affairs (BIA) supported the Natives it represented on ANCSA
lands or if it was always a federal government versus state
issue.
MR. DOIG deferred to Commissioner Brune.
COMMISSIONER BRUNE answered that the response to the state's
letter came from the Department of the Interior and BIA falls
under that agency.
VICE CHAIR MICCICHE asked how many of the NGOs that were
litigating cases in defense of Alaska Natives had indicated
interest in this litigation.
COMMISSIONER BRUNE answered that none of the environmental
organizations had expressed interest in joining the case to
ensure that ANCSA lands are cleaned up.
4:45:10 PM
SENATOR KIEHL suggested formally inviting the NGOs to join the
litigation. He also asked whether the state should notify the
federal agencies that were operating on the land when it was
polluted.
MR. DOIG answered that he didn't believe it would advance the
case from a legal perspective. He deferred to the commissioner
to talk about any possible political benefit in doing so.
COMMISSIONER BRUNE said he believes the recommendation to ask
the NGOs to join the case was a good idea. He added that he was
very pleased when several ANCSA corporations indicated interest
in joining the litigation when it's brought forward. Cleaning up
these contaminated sites on indigenous land was a promise under
ANCSA to get the Trans Alaska Pipeline System built. Unless this
case is brought forward, he estimated that cleanup efforts could
continue for the next 150 years.
VICE CHAIR MICCICHE recognized Commissioner Vincent-Lang as the
next presenter.
4:47:44 PM
DOUG VINCENT-LANG, Commissioner, Alaska Department of Fish and
Game (ADF&G), Juneau, Alaska, stated that he would talk about:
1) the state's right to manage its fish and game resources and
uses, and 2) ensuring that the best available information
possible is being used in federal permitting processes.
COMMISSIONER VINCENT-LANG advanced to slide 31, Right to Manage
our State's Fish and Game Resources and their uses. He relayed
that the fight for statehood was fought largely over the issue
of who would control fish and game resources. Alaskans' argument
was that the federal government was mismanaging these resources
to the point of extinction. Alaskans were successful and the
statehood compact and Executive Order 1087 by President
Eisenhower officially transferred the control of fish and game
resources to the State of Alaska in 1959. The Alaska Native
Claims Settlement Act (ANILCA) reconfirmed that the state was
the primary manager of its fish and game resources. He said the
bottom line is that this was a clear contract from the time of
statehood. The state was able to manage these resources and see
that they were utilized in the best interest of the state.
COMMISSIONER VINCENT-LANG recounted the reasons, listed on slide
32, that state management of its fish and game resources is
important:
• Alaskans ability to access and utilize its fish
and game resources is being unnecessarily
restricted by federal agencies.
• This is impacting the ability of Alaskans to hunt
and fish and the food security of Alaskans
He deferred to Cheryl Brooking to discuss two cases that
challenge federal actions related to primary management of fish
and game resources in the state.
4:51:44 PM
CHERYL BROOKING, Senior Assistant Attorney General, Natural
Resources Section, Civil Division, Department of Law, Anchorage,
Alaska, stated that federal statutes specifically preserve the
state's right to manage hunting and fishing, and recognize the
state as the primary manager, including on federal lands within
the boundary of the state.
MS. BROOKING advanced to slide 33, Alaska v. Federal Subsistence
Board 22-35097. She explained that the state brought this
lawsuit against the Federal Subsistence Board based on the
premise that the board was exceeding the authority it was
granted in ANILCA. Last December, the federal district court
declined to address many of the state's claims, and upheld a two
year closure of moose and caribou hunting for non-federally
qualified subsistence users on road-accessible federal areas in
Game Management Unit (GMU) 13. The case currently is on appeal
to the Ninth Circuit Court of Appeals.
MS. BROOKING highlighted that the court also agreed with the
Federal Subsistence Board argument that it was not required to
hold open meetings. The court ruled that the board can hold
secret meetings and take action by email without letting the
public know or be present. She said this illustrates the
persistent federal creep to close federal lands to hunting
despite that hunting for federal subsistence hunters and others
is specifically preserved in ANILCA, which also has a Savings
Clause that preserves the state's ability to manage fish and
game.
4:53:38 PM
SENATOR BISHOP asked if she said the Department of Interior
(DOI) Federal Subsistence Board can hold secret meetings.
MS. BROOKING answered that is correct.
SENATOR BISHOP said he wanted to make sure that everyone heard
and understands that the Federal Subsistence Board can hold
secret meetings.
4:54:10 PM
COMMISSIONER VINCENT-LANG explained that in 2020, the Federal
Subsistence Board closed hunting on federal lands to everyone
but those who were federally qualified to hunt. This closed the
Glennallen Nelchina Caribou Hunt in GMU 13. The state challenged
the closure and the federal district court upheld the decision
so it's now on appeal to the Ninth Circuit Court of Appeals.
COMMISSIONER VINCENT-LANG said the state mounted the challenge
even though subsistence needs were being met and the caribou
herd was large enough to meet the subsistence needs of both
federally qualified users and state qualified users. The board's
reason to favor federally qualified users was safety and
experience. ADF&G's view was that the decision displaced the
people, including AHTNA Native Corporation members and others,
who had grown up in the Glennallen region and pushed them into
urban areas. He acknowledged that at some point there may be a
conservation reason to close this region, but not at this time.
This highlights the persistent creep of federal overreach into
other areas. In Northwest Alaska the Federal Subsistence Board
is trying to close vast portions of federal land to all but
federally qualified users, despite the fact that the Western
Alaska Caribou Herd in that area has about 200,000 animals. In
Southeast Alaska the board seeks to close deer hunting on
federal land on the Tongass National Forest to everyone but
those who are federally qualified users. He stressed that in
both areas there are more than enough animals to satisfy the
needs of both state and federally qualified subsistence users.
4:56:27 PM
MS. BROOKING advanced to slide 34, Alaska Wildlife Alliance v.
Haaland 3:20-cv-00209-SLG. She explained that in this case the
state intervened to defend a 2020 National Park Service rule
that reversed a 2015 rule the state objected to that regulated
methods and means of hunting and allowed park superintendents to
annually preempt state hunting regulations without any public
process such as the Administrative Procedures Act (APA). The
2020 rule recognizes the state as the manager of hunting on
national preserves, as stated in ANILCA. She highlighted that
most of the restrictions in the 2015 rule are in state
regulations, which underscores that the state is the manager of
hunting, including on national preserves.
MS. BROOKING said this litigation has been stayed for some time,
at the request of the federal government. The district court
judge recently ruled that the federal government brief on the
merits was due next Tuesday.
4:57:47 PM
VICE CHAIR MICCICHE asked if there was a reason the state did
not seem to be willing to challenge the rights of Alaskans in
federal waters to manage Alaska-bound anadromous species of
value. He cited the example of the recent closure of half of
Cook Inlet to commercial fishing, which are only Alaska-bound
anadromous species of value.
4:59:01 PM
COMMISSIONER VINCENT-LANG explained that the Ninth Circuit Court
of Appeals ordered the state to look at the next steps relating
to the federal waters in the Economic Exclusion Zone (EEZ) in
Cook Inlet. The state tried to protect the rights of Alaska
fishermen, but the court told the state to go back through the
fishery management council process to correct the action.
Instead of taking the matter to the US Supreme Court, the state
decided to work with the congressional delegation to answer the
question once and for all about who has the authority to manage
salmon species that are returning to a state stream in EEZ
waters of the US. He expressed hope for a legislative rather
than court solution.
VICE CHAIR MICCICHE said he wanted to make sure that the state
was willing to fight the federal government for the inalienable
rights of all Alaskans. He added that he hopes that the
administration will be willing to take on that fight if there
isn't a legislative fix in a reasonable amount of time. He
acknowledged that not all Alaskans support all uses, but pointed
out that the state either has the right for management as a
state or it doesn't.
COMMISSIONER VINCENT-LANG mentioned previous conversations about
whether it was time for the state to ask for a 12-mile
territorial limit rather than the current three-mile limit. That
would resolve many of the cases since very little salmon fishing
occurs outside the 12-mile zone. He noted the precedence for
that because several of Mexico's Gulf States have jurisdiction
further out than three miles.
5:01:32 PM
COMMISSIONER VINCENT-LANG advanced to slide 35 to discuss the
two ways ADF&G works to ensure that the best available
information is used in federal permitting processes. The first
is to participate in lawsuits to defend federal findings the
department supports. He noted that Ms. Brooking will describe
cases where the state is intervening to defend the federal
government from challenges by environmental nongovernmental
organizations. The second way the state ensures that the best
information is used in the federal permitting processes is to
collect state scientific data to inform the federal decision
processes.
He deferred to Ms. Brooking to discuss the next cases.
5:02:27 PM
MS. BROOKING said the importance of the state providing data
cannot be understated. In the previous case, the National Park
Service passed the 2015 rule that attempted to usurp the state's
authority to manage hunting on national preserves. That was
adopted as a policy decision but there was no data. When the
2020 rule was adopted, it was based on a large amount of data
that the state provided.
MS. BROOKING advanced to slide 36, and explained that Alaska
Wildlife Alliance v. Haaland 3:20-cv-00209 relates to the
nonlethal incidental take of polar bears, which are listed as an
endangered species under the Endangered Species Act. Polar bears
are also protected under the Marine Mammal Protection Act, which
allows the US Fish and Wildlife Service (USFWS) to issue five-
year Incidental Take Regulations (ITRs) so that oil and gas
activities can occur. She noted that USFWS had issued ITRs
consistently since 1953, but recently started using a new model
to predict unrealistically high levels of nonlethal incidental
take. Despite that, USFWS did correctly find that the nonlethal
take would be in small numbers and have negligible impact. The
regulation was issued and letters of authorization are being
issued to allow oil and gas activities in the southern Beaufort
Sea to continue.
5:04:34 PM
COMMISSIONER VINCENT-LANG added that various environmental
groups are challenging the Department of Interior's incidental
take regulations (ITRs) and the state is intervening in defense
of the federal government and the ITRs. All oil and gas
activities on the North Slope is what's at risk if the court
were to uphold the challenge to the ITRs. At the same time that
the state is intervening, he said it also is collecting
additional scientific data that will hopefully address ongoing
concerns with the modeling processes for the incidental take
regulations.
5:05:37 PM
MS. BROOKING advised that the state has consistently
communicated with USFWS on this case and has provided a great
deal of documentation and responses to the modeling.
She advanced to slide 37 and relayed that the state also
intervened in support of the federal decision in Cook
Inletkeeper v. Ross 3:19-cv-00238-SLG, which was about the ITRs
for beluga whales in Cook Inlet. The nonlethal incidental take
regulation in this case allowed Hilcorp oil and gas activities
to continue. The court ultimately ruled to vacate the use of
tugs towing drilling rigs for exploratory well drilling and
production, but the rest of the ITRs remain in place pending
review.
5:06:54 PM
SENATOR BISHOP referenced slide 36 and questioned whether
"nonlethal incidental take" referred to harassment.
MS. BROOKING answered that's correct; it allows activity that
could change the behavior of an animal. For example, it might be
taking for a truck to approach an animal standing in the road
and cause it to move off the road.
SENATOR BISHOP commented on the lunacy of power producers in
California raising California Condors in captivity for release
into the wild to offset the condors killed by windmills that
produce power for those power companies.
5:08:02 PM
COMMISSIONER VINCENT-LANG responded that the rules are applied
differently for Alaska than any other state. That's becoming
apparent in how critical habitat is designated and how
incidental take is calculated.
He noted that he wrote a letter recently asking the Secretary of
Commerce to reconsider the discrete, small area critical habitat
designation for North Atlantic Right Whales versus the
calculation of critical habitat for Ring Seals in Alaska, which
is virtually any place a Ring Seal currently or potentially
could exist with climate change. His point was it can't be both
ways. Either the Alaska designation should be reconfigured to be
discrete or the East Coast designation should be reconfigured to
be more consistent to applications in Alaska. The same thing is
happing with incidental take regulations; they are applied
differentially in Alaska than in the Lower 48.
5:09:26 PM
VICE CHAIR MICCICHE asked where the federal Endangered Species
Act interfaces with state management primacy and whether the ESA
always overrides state law.
MS. BROOKING answered that the ESA and the Marine Mammal
Protection Act are the limited preemption of the state's right
to manage wildlife, although the state still plays an active
role. She deferred to the commissioner to address that active
role.
COMMISSIONER VINCENT-LANG explained that when a species is
listed under the ESA, the federal government assumes control
over the take and any critical habitat designated for that
species, but the state retains a trust authority over the
species.
5:11:10 PM
COMMISSIONER VINCENT-LANG skipped to slides 39 and 40. He
thanked the legislature for appropriating funds last year to
look at ways to collect scientific data to inform federal
decisions about listed species and listing decisions.
He referred to Ms. Brooking's discussion about the USFWS
decision to switch from observational data to modeled data. The
federal agency is essentially saying that polar bears can exist
anywhere on the North Slope for denning, and that it was
possible to model the incidental take associated with
disturbance of the dens that can't be seen.
COMMISSIONER VINCENT-LANG said ADF&G knows that the snow depth
on 95 percent of the North Slope is insufficient for a polar
bear den, and it is currently conducting snow modeling exercises
to demonstrate that much of the polar bear critical habitat in
Alaska does not have sufficient snow depth to support a den. If
the state can demonstrate this it will reduce the amount of
incidental take because there can't be an associated incidental
take if there can't be a den. He said the department is also
collecting scientific data to challenge the USFWS model that
says that any activity within a mile of a polar bear den results
in a complete take of an animal in that den. The idea is to
publish data that shows that there is a higher probability of a
take the closer the activity is to the den, not the blanket one
mile.
COMMISSIONER VINCENT-LANG said the department is also using the
money from the legislature to collect scientific data to inform
listing decisions because the state is under fire from various
environmental groups asking for listing of species in Alaska
from bumblebees to brown bats to sea flowers to sun stars. He
noted that the department has already prevented the listing of
several species in the state. The scientific data has also been
important in the decision to not list the entirety of the Alaska
coastline as Mexican humpback whale critical habitat. The
coastline of Southeast Alaska was excluded based on the data the
department collected and informed through the processes.
COMMISSIONER VINCENT-LANG recapped that the money was spent to
inform the Endangered Species Act potential listing decisions
and to actually look at the biological factors going into
incidental take regulations and how biological opinion decisions
are made in Alaska.
5:15:08 PM
SENATOR KIEHL asked how the department prioritizes and makes the
decision about whether or not to sue.
ATTORNEY GENERAL TAYLOR answered that the focus now is on areas
that Alaska residents use the most and the questions for which
the argument is the clearest. He expressed hope of getting to
the point that the courts say, "enough is enough" and allow
cases that are broader in scope.
5:16:41 PM
At ease.
5:17:03 PM
VICE CHAIR MICCICHE reconvened the meeting.
ATTORNEY GENERAL TAYLOR continued to say that DOL was working to
get the biggest bang for the buck.
5:17:22 PM
SENATOR KIEHL asked for the mechanics of how the department was
making decisions about potential legal challenges.
ATTORNEY GENERAL TAYLOR answered that the Governor's Office had
given clear direction to take on this fight. With that policy
direction the department works with agency partners to look at
where to get the biggest bang for the buck and move forward
accordingly.
5:18:07 PM
VICE CHAIR MICCICHE thanked the presenters for the comprehensive
multidepartment statehood defense presentation.
5:18:58 PM
There being no further business to come before the committee,
Vice Chair Micciche adjourned the Senate Resources Standing
Committee meeting at 5:18 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| Department of Law, Statehood Defense Presentation 3.25.2022.pdf |
SRES 3/25/2022 3:30:00 PM |