Legislature(2015 - 2016)BUTROVICH 205
02/04/2015 03:30 PM Senate RESOURCES
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| Audio | Topic |
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| Overview of the Alaska Statehood Compact and the Alaska National Interest Lands Act (anilca) | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
ALASKA STATE LEGISLATURE
SENATE RESOURCES STANDING COMMITTEE
February 4, 2015
3:29 p.m.
MEMBERS PRESENT
Senator Cathy Giessel, Chair
Senator Mia Costello, Vice Chair
Senator John Coghill
Senator Peter Micciche
Senator Bert Stedman
Senator Bill Stoltze
Senator Bill Wielechowski
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
OVERVIEW OF THE ALASKA STATEHOOD COMPACT AND THE ALASKA NATIONAL
INTEREST LANDS ACT (ANILCA)
- HEARD
PREVIOUS COMMITTEE ACTION
No previous action to record
WITNESS REGISTER
SARA TAYLOR, Executive Director
Citizens' Advisory Commission on Federal Areas (CACFA)
Department of Natural Resources (DNR)
Palmer, Alaska
POSITION STATEMENT: Presented an overview of ANILCA and its
context.
SUSAN MAGEE
State ANILCA Program Coordinator
Department of Natural Resources (DNR)
Juneau, Alaska
POSITION STATEMENT: Related the state ANILCA program activities.
MIKE SCHECHTER, Assistant Attorney General
Natural Resources Section
Department of Law (DOL)
Anchorage, Alaska
POSITION STATEMENT: Commented on ANILCA litigation.
PAUL DECKER, Director
Division of Oil and Gas
Department of Natural Resources (DNR)
Anchorage, Alaska
POSITION STATEMENT: Commented briefly on ANILCA.
DOUGLAS VINCENT-LANG, representing himself
Anchorage, Alaska
POSITION STATEMENT: Related his ANILCA-related experiences
having until recently been director of the Division of Wildlife
within the Alaska Department of Fish and Game (ADF&G) in charge
of the state Endangered Species team and the ANILCA team.
THOR STACEY, Director
Government Affairs
Alaska Professional Hunters Association
POSITION STATEMENT: Related history of the guide industry in
Alaska and discussed state and federal regulatory policy issues
related to ANILCA.
ACTION NARRATIVE
3:29:51 PM
CHAIR CATHY GIESSEL called the Senate Resources Standing
Committee meeting to order at 3:29 p.m. Present at the call to
order were Senators Stedman, Costello, Wielechowski, Coghill,
and Chair Giessel.
3:30:18 PM
^Overview of the Alaska Statehood Compact and the Alaska
National Interest Lands Act (ANILCA)
Overview of the Alaska Statehood Compact and the Alaska National
Interest Lands Act (ANILCA)
3:30:36 PM
CHAIR GIESSEL announced an overview of the Alaska National
Interest Lands Conservation Act of 1980 (ANILCA) and the Alaska
Statehood Compact by Sara Taylor.
SARA TAYLOR, Executive Director, Citizens' Advisory Commission
on Federal Areas (CACFA), Department of Natural Resources (DNR),
said she would present an overview of ANILCA. She said CACFA is
a statutory commission that has been operating since 1981 with a
brief break; it was created to help Alaskans navigate ANILCA's
very complex implementation. Sue Magee would present on Arctic
National Wildlife Refuge (ANWR) plan.
She said ANILCA was passed in 1980 and is unprecedented in more
ways than one. It didn't just create a vast swath of 104 million
acres of conservation lands in a very diverse patch-work across
the state, it also created a different way of managing lands to
accommodate the Alaskan context, a very critical piece in
ANILCA's passage. She explained that when the Alaska Native
Claims Settlement Act (ANCSA) passed in 1971, section 17(d)(2)
specifically directed the secretary of the Department of
Interior to designate up to 80 million acres (one-third of the
federal land at that time) into conservation lands. The debate
about that area continued and the secretary was given until 1978
to make those land designations. In October 1978, session ended
without it happening. Shortly after that, Secretary of Interior
Andrus and the President used their executive authority to
withdraw about 160 million acres from entry and state land
selection pending congressional action. This really motivated
everyone to come to a compromise.
At that time, the Alaska State Legislature passed a joint
resolution referred to as "The Seven Consensus Points," the
points the state absolutely needed when it came down trading for
the balance that ANILCA was to create.
3:33:55 PM
SENATOR MICCICHE joined the committee.
3:34:22 PM
The seven consensus points the state needed were:
1. Revoke all monuments and executive withdrawals that had just
happened
2. Grant the state and Native corporations their full land
entitlement
3. Barricade access across these federal lands to be able to
access state and private lands
4. State management of fish and game on all lands
5. Conservation boundaries should exclude critical natural
resources
6. Continue traditional uses on all lands
7. "No more" administrative expansion or additions to
conservation system units (CSU)
Each of these consensus points was infused into various places
when ANILCA passed. There are three "no more" clauses and the
access provisions were very specific.
MS. TAYLOR said the conservation system units created by ANILCA
are managed by several federal agencies, all with very different
mandates, very different internal policies and guidelines, and
it is CACFA's job to help Alaskans navigate those and to enforce
the promises that were made in ANILCA, because it was an
unprecedented compromise. Unprecedented means they have
continually challenged the federal agencies that are used to
managing things one way into managing them differently in
Alaska, because of the guarantees under ANILCA.
3:36:10 PM
SENATOR STOLTZE joined the committee.
MS. TAYLOR said ANILCA also expanded the Arctic National
Wildlife Refuge (ANWR), which had been in existence since just
after statehood from about 8.9 million acres to 19 million
acres. Part of the area was designated as wilderness, most of
the original range was included in that wilderness, but the
Coastal Plain was excluded, and it was addressed in a separate
ANILCA provision.
MS. TAYLOR stated that everyone was here today to discuss the
President's recent announcement to designate the Coastal Plain
and the majority of the ANWR as wilderness and create four new
Wild and Scenic Rivers in addition to the three that already
exist there. She said Sue Magee, the Statewide ANILCA
coordinator, would discuss the management plan, the vehicle by
which those designations occur.
3:38:18 PM
SENATOR COGHILL commented that conservation unit planning has
come to Alaska and not only do these people have to be educated,
they have systematically ignored the existing law.
3:41:36 PM
SUSAN MAGEE, State ANILCA Program Coordinator, Department of
Natural Resources (DNR), Juneau, Alaska, related that the ANILCA
program consists of a small group of dedicated state employees
from various state departments who work diligently to review
these federal plans, policies and regulations to ensure the
provisions of ANILCA that apply to Alaska are appropriately
recognized and to protect the state's interests. She would
discuss the Arctic Refuge Revised Management Plan, which is the
vehicle for the wilderness and Wild and Scenic River
recommendations that the President recently announced.
She said ANILCA requires the Park Service (Service) to prepare
and update comprehensive management plans (CMPs) to guide
management refuges in Alaska. The law also requires the Service
to consult with the state and Native corporations, and hold
hearings to get input from those that will be most affected by
these planning efforts.
The Arctic Refuge planning process which revises the 1988 CMP
began in 2009. The draft plan was released for public review and
comment in 2011 and the final plan while just released, was
actually completed in 2012. After 30 days when the record of
decision is signed by the Service, they can then forward their
wilderness and Wild and Scenic River recommendations to Congress
for either approval or rejection. State representatives
participated in the planning process from the beginning and the
administrative record for that process shows that the Service
was well aware of the state's position opposing new wilderness
and Wild and Scenic River recommendations. They were not
included as decision-makers, and the Service did not disclose
their final decision to them prior to release of the plan. The
plan includes a disclaimer that the state did not endorse it,
but had valuable input.
The Service is recommending that Congress add approximately 11
million acres of wilderness to the existing 8 million acres of
wilderness in ANWR. If Congress passes it, almost the entire
refuge will be designated wilderness. It also recommends adding
four new Wild and Scenic Rivers to the refuge's existing three
Wild and Scenic Rivers, which were designated by ANILCA.
She explained that only Congress can designate wilderness and
Wild and Scenic Rivers, but if it doesn't take action to reject
these recommendations, federal agency policy dictates that these
areas be managed to protect their status until Congress does
act, which sometimes takes decades, or possibly never occurs.
Leaving these areas in protective status indefinitely requires
more restrictive management.
3:45:19 PM
The state doesn't agree with the Service on this; they believe
the Service is either ignoring or misinterpreting several
provisions in ANILCA. It allowed the Service a one-time
opportunity to conduct a wilderness review, but that ended in
1980. That was limited another section that allows the Bureau of
Land Management (BLM) to conduct wilderness reviews and make
recommendations "from time to time."
While the Service completed the on-time wilderness review it did
not include the Coastal Plain, because ANILCA section 1002 gave
the Service explicit direction for it. Congress explicitly
directed the Service to study the Coastal Plain fish and
wildlife resources, to evaluate the potential impacts that oil
and gas development would have on those resources, and to
authorize all oil and gas exploration. The results were
documented in a legislative environmental impact statement (EIS)
and in 1987, the secretary of the Department of Interior
recommended that Congress authorize full leasing of the entire
area for oil and gas production. Congress has yet to act on that
recommendation.
A cornerstone provision of ANILCA is commonly referred to as the
"no more" clause. The most familiar one says federal agencies
cannot conduct any more studies of federal lands for the single
purpose of establishing new conservation system units without
congressional authorization, and wilderness and Wild and Scenic
Rivers are defined under ANILCA as issues.
Congress has not authorized any more studies. The studies in the
Arctic Refuge Management Plan are administrative actions that
are based on agency policy, not law. ANILCA also had clear
intent language in which Congress states that it believes ANILCA
found a balance between the national conservation interest and
the state's economic and social needs. It ends with: "The need
for future legislation designating new conservation system
units, new national conservation areas, or new national
recreation areas has been obviated thereby."
MS. MAGEE said the Service's response to all of this is that
they are simply following the planning requirements in ANILCA
which state that they must identify and describe the special
values of the refuge in the management plans. So, they are
merely assessing the wilderness and river values in the plan and
the associated recommendations are not required; they are just
agency policy.
They also say they are not violating ANILCA's "no more" clause,
because the reviews have been incorporated into the larger
management plan, itself, not for the single purpose of
establishing new CSUs.
3:48:43 PM
There will be no oil and gas development if the Coastal Plain is
designated wilderness, Ms. Magee said. The Service is also not
abiding by the overall commitment and compromise in ANILCA.
She said that designated wilderness is the most restricted
management regime possible for federal lands. Alaska has rural
communities scattered throughout whose residents rely on these
lands for food and shelter. There are limited roads and
infrastructure and the state's economy is based on responsible
resource development. Federal wilderness management directives,
which are developed by policy makers without an understanding of
ANILCA or the unique Alaska context, make it nearly impossible
for these types of activities to occur. These restricted
policies also interfere with state management activities and the
public's ability to use and enjoy these areas.
Even if federal land managers want to allow more uses, their
hands are tied because environmental groups are watching and
poised to sue. Because the Arctic Refuge Wildlife Management
Plan is so steeped in protective-oriented management directions,
the plan establishes buffers around two villages - Kaktovik and
Arctic Village - implying that Alaska's village life is somehow
incompatible with designated wilderness even though Alaska's
rural residents have been living in and taking care of
wilderness for thousands of years.
The Wild and Scenic River recommendations are managed more
restrictively, and from experience these recommendations if left
in place will be used as additional justification for
restrictive management actions and project-related mitigation.
This was the case with the Pt. Thomson oil and gas development
project that is located on state land adjacent to the refuge and
they are concerned about impacts to future development projects
such as the AKLNG gasline project, which will also run adjacent
to the Arctic Refuge.
3:51:29 PM
MS. MAGEE said the state is in the process of review and
evaluation of the final plan including the Service's responses
to its comments.
3:54:48 PM
SENATOR WIELECHOWSKI asked how many lawsuits the state has filed
over ANILCA violations and what the win/loss ratio is.
MS. MAGEE answered there are a couple of current lawsuits: one
(Sturgeon lawsuit that the state joined) about section 103(c)
having to do with whether or not the Park Service regulations
apply to state and private lands and waters.
3:56:27 PM
MIKE SCHECHTER, Assistant Attorney General, Natural Resources
Section, Department of Law (DOL), said he didn't have a win/loss
number, but the research could be done. He said the Sturgeon
lawsuit is at the stage to apply for certiorari to the U.S.
Supreme Court. The state has until March 16 to file its petition
for review and the work is under way in the AG's office in
concert with the governor's office to make a decision as to
whether the state will participate in the appeal. His most
recent information (through CACFA) with regard to Mr. Sturgeon
is that he has decided to file suit and has found funding to
push forward.
CHAIR GIESSEL said John Sturgeon is a constituent of hers who
has been funding the lawsuit himself so far. Both she and
Senator Coghill had submitted a letter requesting the state to
join in that lawsuit.
SENATOR WIELECHOWSKI followed up saying he was interested in a
synopsis of all ANILCA litigation the state had been involved
with to see a record of interpretation.
3:59:31 PM
MS. TAYLOR said she would add lawsuits the state has not been
involved in, too, because that would provide a lot more
information.
SENATOR COGHILL asked the names of Wild and Scenic Rivers. It
looks like that would be a significant taking at this point.
MS. TAYLOR said three Wild and Scenic Rivers are currently
designated in ANILCA, section 602: the Ivishak, the Sheenjek,
and the Wind Rivers. Four more are being proposed: the Atigun,
Hulahula, Kongakut, and the Marsh Fork of the Canning Rivers.
SENATOR COGHILL asked if the designation, which is for portions
of the rivers, would cut off travel and commerce or subsistence
through them.
MS. TAYLOR replied that some provisions in ANILCA guarantee
certain levels of access and activity on Wild and Scenic Rivers
that may now apply to other Wild and Scenic Rivers that are not
in Alaska.
SENATOR COGHILL said he was trying to understand if this is what
we expected under the "no more" clause as wilderness
designations and how it impacts Alaskans.
MS. TAYLOR said he might want to also consider the U.S. versus
Alaska case about whether or not the state owns the submerged
lands in ANWR.
SENATOR COGHILL said several studies were to be done on the 1002
area to look at impacts on flora and fauna but also to look at
the energy potential for America, and asked if Congress had
asked for that study yet or is it an open question.
4:04:00 PM
MR. SCHECHTER explained that section 1002 (h) required the Fish
and Wildlife Service to do one study and that study was
submitted in 1987. The purposes of section 1002 requires a
continuing inventory of wildlife and such. A lawsuit is pending
before Judge Gleason of the Alaska District Court over the
exploration plan they were just discussing. The question is
whether the submission of the 1987 report to Congress terminated
the Fish and Wildlife Service's authority to review submitted
plans for exploratory activity, non-drilling exploration in the
Coastal Plain. He didn't know whether or not Congress had
specifically requested more studies or information, but it is
the state's position in that lawsuit that the opportunity for
private parties or the state to continue to seek out that
information about the energy potential of the Coastal Plain is
there and it is balanced by the Service's ability to determine
that an exploration plan may be duplicative or may impact the
environment. Judge Gleason has yet to rule on it.
4:05:49 PM
PAUL DECKER, Director, Division of Oil and Gas, Department of
Natural Resources (DNR), said he didn't have any better
information.
MS. MAGEE said she thought that Mr. Schechter answered that
question very completely.
SENATOR COGHILL said he would look at the congressional record
on that.
SENATOR MICCICHE said two villages, Kaktovik and Arctic Village,
are within the Coastal Plain area and asked if there is any
precedence within the U.S. of an active community that is
suddenly designated as being included in a wilderness area, and
what happens with things like fuel storage, water wells, or
release of household effluent, home construction, and that sort
of thing that happens in an active community.
MS. MAGEE answered that these village boundaries are not part of
the refuge. The buffers she was referring to are beyond the
village boundaries that would not be designated as wilderness.
So that activities they feel are inconsistent with wilderness,
such as ATV use, wouldn't be restricted because of the buffers.
SENATOR STEDMAN said they need to prepare for the fact that the
feds want the people to move out over time.
SENATOR STOLTZE said over the last 65 days there has been
substantial change in the statehood defense team and he wondered
if the new team had the horsepower in the DNR, the legal
department commitment, and the same resolve.
MS. TAYLOR answered that the CACFA team is the Department of Law
and it is the very dedicated employees in the ANILCA
implementation program. It operated while CACFA was defunded and
has been advocating for the state's interest and the interest of
Alaskans for the past 30 years. That has been a critical
component of the continual monitoring, but it is very
challenging to "keep this wall manned."
4:12:42 PM
SENATOR WIELECHOWSKI asked the practical impact to ANWR of
designating more wilderness.
MS. TAYLOR replied that there are significant implications. If
Congress does not reject this plan, ANWR gets managed to a non-
impairment standard pending designation. This means there are
still certain guarantees with respect to ANILCA that they hope
are honored, but the ANWR CMP has taken the management of
wilderness to an additional extreme, more than the one
contemplated under ANILCA. People will have to use non-
mechanized tools to maintain airstrips, no wheeled vehicles,
like strollers or bikes, and public use cabins (which ANILCA
provides for) would not be allowed even for health and safety.
MS. MAGEE added if Congress rejects the recommendations, then
the refuge gets managed minimally, which is more restive than
with other CMPs; the danger is if Congress doesn't act and then
the wilderness and Wild and Scenic River designations remain in
place and get managed as defacto wilderness and that can spill
over into adjoining state lands.
SENATOR WIELECHOWSKI asked if Congress rejects the
recommendations does ANWR get managed as it is today.
MS. MAGEE replied that it would be managed in accordance with
the management plan without the wilderness and Wild and Scenic
River recommendations. Because ANWR is very important to the
wilderness community, a lot of the management direction is more
restrictive. For example, ANILCA allows public use cabins in
wilderness for public health and safety, but this plan says even
though ANILCA allows it, they will not allow public use cabins
in wilderness.
4:18:36 PM
SENATOR WIELECHOWSKI asked how many airstrips and public use
cabins are there now.
MS. MAGEE answered she didn't know an exact number, but there
wouldn't be any new ones under the new management plan.
SENATOR STEDMAN said he was curious about how residents up there
will be treated under the new designation and how many feds will
be needed to monitor the visitors.
MS. MAGEE responded that she couldn't provide those details, but
added that wilderness has a philosophical management associated
with it: the refuge is to be untrammeled. What is ironic is that
management occurs behind the scenes to make sure visitor
experiences are maintained.
SENATOR STEDMAN remarked that Yellowstone Park has been enjoyed
by a lot of Americans for decades; it has a lot of wildlife
viewing and fishing. He has a hard time trying to grasp how many
people go to the Coastal Plain; it doesn't have a hotel or
transportation. It looks like the real point is to restrict the
Alaskans that are up there in the two villages and to block oil
development.
MS. TAYLOR said the Fish and Wildlife Service has reported
roughly 1,000 visitors per year.
CHAIR GIESSEL said volunteers in Southeast used to cut firewood
with chainsaws for some of the public use cabins, but quit
because motorized equipment can't be used there.
SENATOR STEDMAN added that a family cabin built in the 50s has
evolved into a wilderness area. You can't cut any brush without
permission and you can't run a gas-fired or wood heater; the
next door cows are gone. It's very challenging to use and
maintain. Alaskans are viewed as an invasive species in their
own state and the feds want us out of there.
SENATOR COSTELLO said she appreciated the comments and everyone
is wondering how we can get our voices to Washington, D.C. She
asked if CACFA was just observing or are they going to put
forward recommendations.
MS. TAYLOR answered that in 2013, CACFA had a federal overreach
summit and came up with a number of powerful recommendations.
They are still processing those recommendations, but they are
not advocates. Their job is to be a resource for Alaskans, more
the institutional memory and means of helping Alaskans figure
out what their rights are. One recommendation is creating an
advisory group to examine the ability to acquire federal land
into state ownership or at least state management. That is
gaining some traction in the Lower 48.
CHAIR GIESSEL said that is why she gave the committee maps
showing the percentages of federal land and pointed out that
Nevada is worse off than Alaska.
SENATOR COSTELLO said she was interested in coordinating with
other western states that are facing similar challenges.
CHAIR GIESSEL responded that the American Lands Council is
vigorously working this topic and is led by a Nevada
Representative who is also an attorney.
4:33:54 PM
SENATOR STOLTZE said the Department of Agriculture is a bigger
problem for Southeast.
MS. TAYLOR said the National Marine Fisheries Service (NMFS) and
the Environmental Protection Agency (EPA) also have interesting
ways of interrupting development.
SENATOR STEDMAN said the cows were gone before going to
wilderness designation probably through improved barge service
and modernization of homogenized milk and transportation. But
Southeast has its own unique set of problems, because it is a
forest that was created in 1907.
SENATOR MICCICHE liked his analogy and asked if the state has
been successful on a single ANILCA challenge.
MS. TAYLOR answered yes; many times it has headed off major
misunderstandings with respect to ANILCA and those far outnumber
the ones lost.
SENATOR MICCICHE asked her to add those informal successes to
her litigation document so they can understand where Alaska has
been successful even if it doesn't involve litigation.
4:38:44 PM
DOUGLAS VINCENT-LANG, representing himself, Anchorage, Alaska,
said up until recently he was the director of the Division of
Wildlife within the Alaska Department of Fish and Game (ADF&G)
and was in charge of the state Endangered Species team and the
ANILCA team and has first-hand experience on these issues. He
said this afternoon he would speak about a range of federal
intrusions into the state's wildlife management programs. These
issues will forever impact our state and our ability to
determine sovereignty as promised under the statehood compact,
ANILCA and other federal laws. These are his comments:
Let me begin by saying that despite what some are
saying, Alaska has a rich and excellent history of
successfully managing our fish and game resources and
their habitats. We restored many once depleted
fishery stocks that we received from the federal
government at the time of our statehood. Alaskans
have the experience, using the efforts of people
ranging from highly professional scientists to the
wisdom of our Native Elders, to manage our fish and
game resources and our lands for their sustained
yields and benefits. And yes, Alaskans manage our
resources for sustainability and human benefit and use
and not just for their natural diversity and
existence. This is part of our constitution.
Let me also say that Alaska routinely tries to seek
common ground with our federal partners. At times,
these efforts succeed and we are able to work
cooperatively. However, we have recently begun to
experience increased federal intrusions on a wide
range of fronts into our sovereign authorities and
responsibilities to sustain and manage wildlife
populations that are seemingly unresolvable given
differing management and conservation philosophies and
goals. Unfortunately what we once saw as rare
occurrences are now becoming more commonplace and the
norm.
Let me demonstrate the nature of these federal
intrusions by starting with a discussion of the
Endangered Species Act, or ESA for short, as a species
and landscape control mechanism. Alaska has been
assaulted with precautionary listings of species
irrespective of their current or near term heath or
abundance based solely on untested models speculating
possible extinction sometime in the far distant
future. This began with the listing of the polar
bear, which despite our scientist's concerns with the
untested models that speculated extinction by 2050,
remain today at all-time record numbers, and for the
Chukchi Sea population which has experienced some of
the greatest sea ice loss over the past decade, vital
rates remain the same as they were 30 years ago. We
have now seen this strategy being employed by federal
agencies and NGOs to list or attempt to list
additional species. For example the NMFS listed the
ringed seal based on speculative climate impacts 100
years in the future, despite their being over 3
million of these seals in the world today and, this is
important, their own information that suggests that
there will be no measurable impacts for the next 50
years. Similar proposals are pending for other species
based solely on speculated impacts in the far distant
future rather than observed or documented declines now
or in the near future.
This concerns me for many reasons; however, my
greatest concern is that once a species is listed all
forms of take, including hunting and fishing, or
incidental takes through development of our resources,
comes under federal oversight. I view this as an
unprecedented and unjustified federalization of state
trust species and their habitats, and more
significantly, of their management. It will not be
long before a raft of state managed species are
petitioned for listing and federalization, many of
which are managed sustainably under state management.
For example, what would happen if sockeye salmon were
listed due to speculated impacts from ocean
acidification, or caribou from global warming? Both
species are currently well managed by the state but if
listed would become federally managed.
Alaska has begun to fight back on these unwarranted
listings. For example the state challenged the
listing of the bearded seal and successfully reversed
it with the judge calling the listing a gross misuse
of federal discretion and authority.
We are also seeing this Act used as a landscape
control mechanism through overly expansive
designations of critical habitat that encompass any
area potentially occupied by a species, rather than
those areas truly critical to a species survival. As
an example, for the polar bear, an area of Alaska
larger than California was designated as critical
habitat despite acknowledgment in the rule that the
designation would not significantly benefit the
species or that much of the area did not contain the
primary constituent elements defining the habitat as
critical.
4:44:21 PM
I believe this needlessly federalizes broad areas of
land/seascapes. I also fear that such designations
allow federal agencies to unnecessarily exert their
management goals and authorities onto the designated
lands and waters, including state and private lands.
Such designations have opened a Pandora's Box
regarding federal intrusion into state management
authority. Again, Alaska fought back by successfully
challenging the polar bear critical habitat
designation. This rule was found so faulty the judge
threw out the entire rule. It is currently under
appeal by the U.S. Fish and Wildlife Service (USFWS).
Recently, the National Marine Fisheries Service (NMFS)
has proposed to list an area twice the size of
California to protect those ringed seals that number
in the millions. I wonder what our position will be as
we did not state one at the recent public hearing held
in Anchorage.
4:45:00 PM
Alaska's concerns that the use of Endangered Species
(ESA) listings has gone too far came to fruition near
the small island of Adak. Here the NMFS determined
that commercial fishing was causing nutritional stress
to Steller sea lions and closed commercial fishing
resulting in significant economic impacts to local
Aleut communities dependent upon these fisheries.
This occurred despite there being over 70,000
endangered sea lions at the time of this action and
data showing that the population was increasing at a
rate of 1.5 percent per year and nearing federally
determined down-listing objectives.
4:46:00 PM
State scientists challenged the foundational science
associated with the nutritional stress hypothesis and
challenged the fishery closures as unwarranted. Seven
subsequent independent reviews, three contracted by
the NMFS itself, verified the state concerns. Despite
this, the NMFS stood by their action citing that
amorphous cloud, federal discretion. Alaska challenged
NMFS in court, succeeding in a partial victory and
restoring fishing to our western Alaskan communities.
Again, a legal challenge proved successful in
overturning unjustified federal action and intrusion.
Speaking of federal influence on state lands and
waters, the Department of Interior has recently
initiated an expansive program called Landscape
Conservation Cooperatives (LCCs). LCCs were initially
established to coordinate science at a landscape scale
to study the effects of a changing climate. On the
surface this sounds good as climate is having an
impact on our landscapes. Unfortunately this program
has morphed into something much broader and
controlling. The USFWS has now directed these entities
to establish conservation goals and objectives for all
lands and waters and species occupying them within the
boundaries of these cooperatives. Included in the
boundaries of these LCCs are millions of acres of
state and private lands and waters, including lands
owned by Native Corporations. As such, federal
conservation goals and objectives would apply to those
lands and waters, state and private. When I was
Wildlife Director we quit participation in two LCCs
because they chose to vote by majority, allowing
numerically dominant federal partners to establish
conservation goals and objectives that apply on state
lands and waters or over state trust species all over
our objection. This approach causes me great concern
as federal agencies often have quite differing
conservation and management philosophies, as I will
discuss shortly.
On yet another front, the National Ocean Council is
implementing a National Ocean Policy under
administrative order of the President. Alaska has
voiced significant concerns with the proposed national
ocean policy and its associated planning bodies. In
short, the concerns of the state related to the level
of federal authority associated with these policies
and how they may be applied to state trust resources,
lands and waters. Alaska also expressed concern
regarding the extent of these planning boards'
jurisdiction cover state territorial seas as well as
adjacent uplands and waterways.
4:48:01 PM
Alaska also expressed concern that these planning
bodies, again dominated by a federal voting decision
and appeal process, could stipulate sanctuaries or
other closed areas where resource use and development
would be restricted.
4:48:43 PM
On yet another front, Alaska continues to implement
intensive management programs to meet our
constitutional responsibilities for sustained yield
management. Overall, many of these programs have shown
success and are providing additional hunting
opportunities for Alaskans, particularly rural
Alaskans wholly dependent upon wild foods for their
food security and livelihood. Despite this sound
management approach Alaska has been criticized by our
federal partners as overly focusing on and managing
our wildlife for human benefits and that our wildlife
management is nothing more than running a game farm.
They also oppose such an approach on federal lands
despite its demonstrated success, but interestingly
usurp the subsequent benefits for federally qualified
users when these animals move onto federal lands, then
claim that intensive management (IM) is not compatible
with undefined federal management objectives or
values. I am grateful that you see the value of our IM
programs and continue to fund and support them despite
the expressed federal opposition.
Alaska is also seeing impacts caused by federal
wilderness management. In response to declining
abundance of caribou on Unimak Island, Alaska
attempted to work with the USFWS to reduce predation
and improve calf recruitment through a very limited
and selective wolf reduction program. Our hope was to
restore caribou hunting and food security to people
that live in this remote area. Alaska was warned in a
letter from the USFWS that if we took action we would
be arrested and charged in federal court. The Service
determined that under provisions of the Wilderness Act
and their Biological Diversity Policy that caribou
could be allowed to be extirpated from the island, or
as their leadership described it - blink out of
existence.
Alaska cannot under its constitutional
responsibilities allow a species to simply blink out
of existence. This makes one wonder what is in store
for ANWR which was recently proposed for increased
wilderness designations by the USFWS. Will the
Porcupine Caribou herd someday be allowed to become
extirpated under their wilderness and biological
diversity policies? You need to be aware that the
USFWS in Alaska is currently seeking a federal
regulation that will forever prohibit management of
wildlife that has the intent or even potential to
alter or manipulate populations to provide for harvest
opportunities in any way for any reason, including for
subsistence use.
4:51:17 PM
We are also seeing intrusions into our sovereign
jurisdiction of state waters. The NPS recently
authorized themselves the authority to regulate uses
on all water bodies within their Park units, including
state navigable waterways. This is a direct violation
of the Submerged Lands Act and ANICLA. Alaska
challenged this action with John Sturgeon and should
consider appealing the recent court 9th Circuit Court
decision upholding the federal action. This is
impacting state authorized hunting and fishing and
research, as well as public use and access to state
lands and waters.
4:51:42 PM
While I could continue with many other examples, let
me close with a real example. The National Park
Service (NPS) recently preempted state subsistence
hunting regulations for the documented customary and
traditional harvest of bears at den sites in two
Alaska national parks. The Park Service also preempted
state wolf seasons in two other Alaska national park
units despite there being no conservation concerns and
acknowledgement that the preempted practice would not
impact other park users. The Park Service told the
state the action was necessary given that the
preempted state regulations impacted undefined park
values and biological integrity, whatever they may be.
Alaska repeatedly asked for measurable metrics on how
such impacts could be assessed, but none were ever
provided. In short, state hunting regulations adopted
under an open public process can be preempted if they
are perceived by a federal manager to have some
undefined impact on park values or natural diversity.
Both the NPS and USFWS are now proposing to adopt
their own set of hunting regulations on federal lands
that are based on their undefined values and natural
diversity conservation goals; goals that do not take
into account the needs and desires of Alaskans,
including those Alaskans living a subsistence
lifestyle, a lifestyle ANILCA was intended to protect.
4:53:22 PM
In sum, we are seeing an unprecedented administrative
intrusion on a wide range of fronts by federal
agencies into our traditional role as the primary
manager of fish and wildlife. In my 30 plus years I
have never seen such a siege on so many fronts. This
is occurring despite our statehood compact, ANICLA and
other Congressional assurances to the contrary that
were intended to protect Alaska's ability to fulfill
our constitutional sustained yield mandates. It is
directly impacting management of fish and game given
that federal management agencies often have quite
differing philosophical management objectives,
objectives that do not have the interests of Alaskans
as a part of their development.
I urge you to remain vigilant given the impacts this
is having on Alaska and our future. While no one
likes to sue, we should not rule this out as it allows
us a seat at the settlement table. The NGO community
has successfully employed this strategy. The future
of Alaska, its resources and the people who depend on
it rest on the ability of Alaskans to manage, use and
conserve all our resources for the benefit of its
people. That is the mandate Alaska's Constitution
requires. It is our future and we must protect it.
Thank you.
4:54:15 PM
SENATOR STOLTZE thanked him for his service, foundational
knowledge and science-based approach, with a vision to maintain
an opportunity for the state's constitutional mandates.
4:57:30 PM
SENATOR COGHILL thanked him for his service, too, and his very
compelling testimony. He said the issue of caribou on Unimak
Island ended up in court and asked if some appeals were made to
the USFWS and to our congressional delegation.
MR. VINCENT-LANG answered that they went round and round on what
could happen on Unimak Island to restore caribou, because the
state could not accept the fact that they could blink out of
existence as the leadership of USFWS portrayed it. He eventually
negotiated a deal, by being very hard-nosed, that his staff
should be able to go to that island and participate in legal
hunts for wolves. This past year, the department actually sent a
few people down to Unimak Island to take wolves under state
hunting regulations. If that continues for a year or two he
hoped that would turn the tide on that caribou herd.
SENATOR COGHILL asked if Unimak Island was a wilderness
designation.
MR. VINCENT-LANG answered yes. He said the USFWS is applying
wilderness on a broader range across refuges in Alaska and
basically elevating the natural diversity and bio-diversity
mandate higher than hunting in a variety of other uses.
5:01:16 PM
THOR STACEY, Director, Government Affairs, Alaska Professional
Hunters Association, said he is also an active registered guide
in the state. He holds a special use permit in ANWR, which
allows him to provide commercial hunting activities there. He
wanted to make the committee aware that there are some nuts and
bolts questions on how those concession permits are
administered, and he would entertain those from an individual
perspective.
MR. STACEY said the Alaska Professional Hunters Association was
formed as result of concerns created by ANCSA when ANILCA was
going into effect and as a result of federal overreach. From a
hunting guide's perspective the person who owns the land
controls the industry, he said. The trespass that hunting guide
operates under essentially defines a person's operation, and
with the committee's permission, he would suggest a plan forward
for the guide industry.
5:04:51 PM
He said the hunting guide industry existed pre-statehood. It is
resource based, but also a visitor industry. Alaska hunting
guides are Alaskans, which is important for understanding how
economics affects this group. Hunting guides have a very
positive relationship with Alaskan-owned small businesses and
the resource they are allowed to utilize.
MR. STACEY said guides don't own the resource; all Alaskans do.
Wildlife, the resource they rely on, is important to all
Alaskans. Sixty-five percent of Alaskans view wildlife as very
important or mostly important to why they live here or how they
see themselves.
5:06:04 PM
When the lawsuit over closure of Alaska's refuge after the
appropriation act failed to pass Congress in October 2013, Mr.
Stacey said he was guiding hunters on the Alaska Peninsula. They
were listening to the radio and hearing that the appropriations
act may not pass Congress and it was possible there wouldn't be
funding to continue the refuges or the Department of Interior's
programs. It was communicated to them via satellite phone from
family members at home that the ANWR system might be closed for
business in the middle of his hunting season, which is what
happened. When the appropriations act failed to pass, the
hunters viewed it as political retaliation toward the user group
that was viewed as a conservative user group (hunters).
The Alaska Refuge system was closed in the middle of their bear
hunting season. They interacted with the Parnell Administration
and a lawsuit was filed, because under ANILCA, specific
provisions allow for state wildlife and enforcement personnel to
trespass any time on federal lands. Within the act there are
also specific provisions when an emergency closure happens: they
have to consult with the affected user groups. But that wasn't
done. The hunting guides were asked to sign onto the lawsuit to
help give the state standing, because members of the association
experience real financial hardship as a result of this closure.
Fortunately, the refuges were re-opened the day the court case
was filed.
Moving forward their standing was mooted and they opted not to
appeal, but they hoped to have a discussion with the refuge
system about what would happen if a shutdown happened again in
the future. Their response was simply that they were discussing
a proposed rule. It would take away the requirements for
consultation, extending the amount of time for an emergency
shutdown from 30 to 60 days and proposing to extend the duration
of a closure based on itemized concerns from 1 year to 5 years
before they have to explain their action.
5:10:20 PM
MR. STACY remarked that before they had a chance to discuss what
would happen to them in the future, the agency's response was it
agreed that it might have broken the rule, so the agency changed
the rule, in order to not break it in the future.
5:11:13 PM
SENATOR MICCICHE asked if there is an emergency closure while he
is out on the Alaska Peninsula, what park services they use.
MR. STACEY said they don't use any of their services, but if
they violate the terms of their contract, like continue hunting,
they will take away their land use authorization.
SENATOR MICCICHE said under ANILCA the state manages its own
fish and game and it would be best if they would temporarily
hand off that responsibility when they have closures so it
doesn't affect our hunters.
5:12:39 PM
MR. STACEY said the concern is that whoever issues the trespass
permit controls the industry. If a person violates the terms of
the landlord they have the ability to remove him. People
experience very real stress and angst over such an action. You
can lose your entire livelihood over an arbitrary decision that
happens in Washington, D.C.
5:13:59 PM
Mr. Stacey read the following history of how the guide industry
got to the point of so much federal oversight:
1. The state of Alaska regulated the establishment of
guide areas through the 60s, 70s, and 80s.
2. Congress deferred to this state regulatory scheme
when ANILCA was enacted in 1980. Specifically 1307,
which set forth various preferences for visitor
services in the park and refuge units, exempted state
regulated fishing and hunting guide services.
3. During the first eight years of ANILCA's
implementation, the federal agencies deferred to the
state guide area program and honored those state
authorizations/permits to guide on federal land units.
4. In 1988, the Alaska Supreme Court declared
unconstitutional the state guide area system as
inconsistent with the equal use provisions. However,
the decision outlined features, which if added to the
guide area system, would make a guide area program
constitutional. These included competition, reasonable
time limits on permits, and state oversight of permit
transfers.
5. New state legislation was drafted in 1989-1990 per
the court ruling but the legislation was not passed.
6. For three years there was a regulatory hiatus
during which the state had no program and the federal
agencies continued to wait for the state to act to
fill the regulatory gap created by the 1988 ruling.
7. When it became evident that the state action was
not likely, the NPS and USFWS took regulatory steps to
create a federally administered guide program on the
National Park Service preserve lands and the Fish and
Wildlife Refuge lands. These two federal programs were
first implemented in 1993-94 and have been in force
and effect over the subsequent 20 years to fill the
regulatory gap created by state inaction.
8. During this 20 year period, MLM accepted the
regulatory gap and took no steps to create a program
comparable to those set up by the NPS and FWS. That
hiatus is likely to end as BLM now indicates it
intends to set up a similar federal program absent
action by the state to do likewise.
MR. STACEY remarked that this is not a very cheery narrative. He
would prefer to be under the administration of the state. He
would prefer that this body administer and regulate and write
laws to create, enhance, and improve or restrict the industry.
5:17:26 PM
He said the "quick" expansion of federal authority over guide
service in Alaska is the direct result of state inaction,
especially when ANILCA outlines mutually responsible stewardship
relationships between the state and the federal side.
He said the guide industry has a full brother, the transporter
industry, the two commercial services that can sell Alaska big
game services, and there is no program to regulate transporters
right now on federal or state land. In a recent Fairbanks
advisory meeting, the manager of the Arctic National Wildlife
Refuge said they are going to create a regulatory regime for
transports there. He explained that transporters largely service
Alaska hunters. There is an absence of regulation and he
finished the historical outline.
9. The expansion of federal authority over guide
services in Alaska is the direct result of state
inaction. Passage of a state program will likely stop
BLM from setting another federal guide program.
Passage of a state program will also enable the state
to go to NPS and FWS and seek re-establishment of
state primacy on federal lands that existed until
1993-94.
The very core question that causes the regulatory vacuum that
the agencies are exploiting in the guide industry is does the
state have the authority to limit the number of commercial
operators on its land. Because it is paralyzed by that question
for now for a variety of reasons, the federal agencies are
filling that vacuum in controlling the industry.
5:19:33 PM
SENATOR MICCICHE asked why the state went 20 years without any
action.
MR. STACEY answered that the industry was exhausted and
discouraged from making the argument for the state to fill that
void after a divisive Supreme Court decision. Some of the
industry received concessions, which have proven to be stable
and good for them over time. The other portion of the industry
was left open on state lands, splitting the voice. Because the
voice was split, the one group tended to focus on making the
federal concession program better, and for a lack of better
words, the others didn't know what to do in advocating for
themselves within the state process. He added that program was
drafted right here in Senate Resources.
CHAIR GIESSEL, finding no further questions, said she
appreciated the history Mr. Stacey presented as well as the
robust documentation.
5:20:55 PM
CHAIR GIESSEL adjourned the Senate Resources Committee meeting
at 5:20 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| SRES-Alaska Legislature Resolve 1979-Re CACFA Presentation.pdf |
SRES 2/4/2015 3:30:00 PM |
|
| SRES-Written Tesitimony-Doug Vincent-Lang-02-04-2015.pdf |
SRES 2/4/2015 3:30:00 PM |
|
| SRES-Written Testimony-Thor Stacey 1 of 4.pdf |
SRES 2/4/2015 3:30:00 PM |
|
| SRES-Written Testimony-Thor Stacey 2 of 4.pdf |
SRES 2/4/2015 3:30:00 PM |
|
| SRES-Written Testimony-Thor Stacey-3 of 4.pdf |
SRES 2/4/2015 3:30:00 PM |
|
| SRES- Written Testimony-Thor Stacey-4 of 4.pdf |
SRES 2/4/2015 3:30:00 PM |