Legislature(2021 - 2022)BUTROVICH 205

03/25/2022 03:30 PM Senate RESOURCES

Note: the audio and video recordings are distinct records and are obtained from different sources. As such there may be key differences between the two. The audio recordings are captured by our records offices as the official record of the meeting and will have more accurate timestamps. Use the icons to switch between them.

Download Mp3. <- Right click and save file as

Audio Topic
03:41:43 PM Start
03:42:40 PM Department of Law Presentation on Statehood Defense
05:18:58 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ Department of Law Presentation TELECONFERENCED
Scheduled but Not Heard
Scheduled but Not Heard
+ -- Public & Invited Testimony -- TELECONFERENCED
+ Bills Previously Heard/Scheduled TELECONFERENCED
**Streamed live on AKL.tv**
                    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                                                                                                  
     - 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                                                               
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                                                               
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                                                               
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                                                               
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                                                                    
     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                                                               
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                                                               
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                                                               
        • Kuskokwim River                                                                                                       
          ? State of Alaska (Interior Board of Land                                                                             
        • 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                                                               
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                                                               
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                                                               
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                                                               
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                                                                    
     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                                                                    
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                                                                   
          ? 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.                                                                     
        • 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                                                               
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                                                               
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                                                                     
          ? 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.                                                                    
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                                                                    
        • 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                                                               
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                                                                          
        • 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                                                               
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                                                               
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                                                               
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                                                               
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                                                               
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                                                               
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                                                               
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                                                               
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                                                               
        • 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                                                               
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                                                               
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                                                               
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                                                               
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                                                               
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                                                               
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                                                               
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                                                               
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