Legislature(2015 - 2016)SENATE FINANCE 532
02/17/2016 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.
| Audio | Topic |
|---|---|
| Start | |
| Overview: Update on John Sturgeon Supreme Court Case | |
| 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 17, 2016
3:31 p.m.
MEMBERS PRESENT
Senator Cathy Giessel, Chair
Senator John Coghill
Senator Peter Micciche
Senator Bill Stoltze
Senator Bill Wielechowski
Senator Bert Stedman
MEMBERS ABSENT
Senator Mia Costello, Vice Chair
OTHER LEGISLATIVE MEMBERS PRESENT
Senator Charlie Huggins
Senator Kevin Meyer
Senator Anna Mackinnon
Senator Pete Kelly
Representative Wes Keller
COMMITTEE CALENDAR
OVERVIEW: UPDATE ON JOHN STURGEON SUPREME COURT CASE
- HEARD
PREVIOUS COMMITTEE ACTION
No previous action to record
WITNESS REGISTER
JOHN STURGEON
Anchorage, Alaska
POSITION STATEMENT: Commented on the Sturgeon Case Update.
MATTHEW FINDLEY, Attorney
Representing Mr. Sturgeon
Anchorage, Alaska
POSITION STATEMENT: Commented on the Sturgeon Case Update.
JANELL HAFNER, Assistant Attorney General
Department of Law (DOL)
Juneau, Alaska
POSITION STATEMENT: Commented on the Sturgeon Case Update.
RUTH BOTSTEIN, Assistant Attorney General
Department of Law (DOL)
Anchorage, Alaska
POSITION STATEMENT: Commented on the Sturgeon Case Update.
EDDIE GRASSER, Vice President
Safari Club International (SCI)
Palmer, Alaska
POSITION STATEMENT: Commented on the Sturgeon Case Update.
ACTION NARRATIVE
3:31:21 PM
CHAIR CATHY GIESSEL called the Senate Resources Standing
Committee meeting to order at 3:31 p.m. Present at the call to
order were Senators Coghill, Wielechowski, and Chair Giessel.
Senators Huggins, Meyer, Kelly, and Mackinnon, and
Representative Keller were in attendance.
^Overview: Update on John Sturgeon Supreme Court Case
Overview: Update on John Sturgeon Supreme Court Case
3:32:25 PM
CHAIR GIESSEL announced an update on the John Sturgeon case that
affects the entire State of Alaska and was heard in the U.S.
Supreme Court recently. She introduced Mr. Sturgeon and his
Alaskan attorney, Matthew Findley.
3:33:40 PM
JOHN STURGEON, Anchorage, Alaska, said he appreciated being in
Juneau and thanked the people who had personally donated to his
effort. He said he would use a slide presentation, but wouldn't
follow it very closely.
MR. STURGEON said the Washington Post had a very favorable
article on his lawsuit the day before the Supreme Court hearing.
The story started in 2008. He had been hunting the same area
just outside of Eagle on the Yukon River since 1971. He was
repairing a broken cable on his 6 horse power (hp) motor on his
hovercraft when three uniformed National Park enforcement folks
stopped him, and asked a lot of questions as if they were really
interested in what was going on. They asked if he had hunted
moose here for a long time to which he answered yes. Then the
tone changed completely; they actually pulled out a rule book
and showed him a sentence that said "hovercrafts are not allowed
in parks and preserves." He responded that he didn't know that,
and that he needed to get it out of there right away. They said
if he started the motor up they would give him a citation. So,
he got his river boat up there and put the hovercraft in the
river boat and got out without getting a citation. He had hunted
the same area since 1971 and had used the hovercraft there since
1991.
3:35:54 PM
SENATOR STOLTZE joined the committee.
MR. STURGEON said the foundation of the lawsuit is based on
Section 103(c) of the Alaska National Interests Lands
Conservation Act (ANILCA). He then turned the presentation over
Mr. Findley, his attorney and expert on ANILCA.
CHAIR GIESSEL recognized Senator Kelly in the audience.
MATTHEW FINDLEY, Attorney representing Mr. Sturgeon, Anchorage,
Alaska, said Section 103(c) of ANILCA is an example of something
that should be simple, but somehow has spun into more than five
years of litigation.
CHAIR GIESSEL asked Mr. Findley to remind the committee what the
acronym ANILCA means.
MR. FINDLEY said ANILCA stands for the Alaska National Interest
Lands Conservation Act.
MR. FINDLEY said that, despite what the Park Service keeps
saying, Mr. Findley said, ANILCA is a statute that was designed
to resolve long-standing land allocation issues in Alaska that
started with the Statehood Act. Between the passage of the
Alaska Native Claims Settlement Act (ANCSA) in the early 70s and
the passage of ANILCA in the late 70s, there were constant
issues about land selections for the state over what lands would
go to Native Corporations, what lands should be withdrawn for
preserves, and what lands should be more economically developed.
ANILCA was supposed to resolve all of that. So compromises were
made on both sides. Over 100 million acres of parks were
created, but also significant swaths of land were set aside for
more economic development. That purpose is in the Preamble of
the statute.
MR. FINDLEY explained that one of the compromises (embodied in
Section 103(c)) that was made was over a concern that about 100
million acres was going to be added to the park system. Folks
raised their hands, particularly the state and Native
Corporations. From the Native Corporation perspective, over 40
percent of their land selections were going to be surrounded by
these parks. These were lands given to them for economic
development, so they didn't want to be part of the park and
didn't want to be regulated like a park in the contiguous United
States. They wanted to have the same status after ANILCA that
they had before. Legislative history shows that is the deal that
was struck. It's clear throughout the statute that the intent
was that their land was not owned by the federal government, was
not part of the park and was not to be regulated as if it were
going to be. So, the first sentence in Section 103(c) says if
the land is not owned by the federal government it is not part
of the park, period.
That should have been enough, but the second sentence makes it
even clearer saying "clearly these lands won't be regulated as
though they were part of a park." The third sentence says, "If
the federal government does want to regulate this land it needs
to go out and buy it." One would hope that this section would
have ended the issue, he said, but it didn't.
3:39:15 PM
Up until 1996, there actually hadn't been a conflict. The Park
Service in Alaska wasn't trying to regulate these non-federal
lands as if they were part of the park. That changed in 1996
when the Park Service changed its regulations and extended its
regulatory reach to all navigable waters without regard to
ownership of the submerged lands or ownership of the waters.
MR. FINDLEY said under the Equal Footing Doctrine at Statehood,
Alaska took title to all its submerged lands and navigable
waters. So, the rivers are state land; they aren't part of the
parks and they shouldn't be regulated as though they were.
However, the state did not actually challenge the regulation
when it was promulgated in 1996, and so it sat there until Mr.
Sturgeon came along with his case.
SENATOR MICCICHE joined the committee.
MR. STURGEON said he filed a public interest lawsuit after a lot
of discussion and thought. He calls it a public interest
lawsuit, because he didn't get a citation or a written warning.
He hired three separate attorneys that specialize in natural
resource issues, all three of whom thought he had a good case
with Section 103(c) navigable waters, and the promises made in
ANILCA, as a basis for suing the federal government. He searched
around a while to find the right attorney and Matt Findley came
to the top.
3:41:52 PM
MR. FINDLEY explained the basics of the lawsuit, which brought
an "as-applied challenge to the regulation." He provided the
following background of that statutory provision:
It is our belief that the NPS cannot ban hovercrafts
on Navigable waters owned by the State of Alaska.
Section 103 (C) of ANILCA specifically says Federal
management regulation do not apply on inholdings. A
point made crystal clear by the co-sponsors of ANILCA.
The legislative history of 103(c) is extensive. Rep.
Sieberling, 125 Cong. Rec. 11158 (1979) (Rep.
Sieberling was the sponsor of the amendment adding
103(c):
"All this amendment does is restate and make clear
beyond any doubt that any State, native or private
lands, which may lie within the outer boundaries of
the conservation system unit, like the National Park,
are not parts of that unit and are not subject to
regulations which are applied to public lands which,
in fact, are part of the unit."
In response to a query from Congressman Young to not use "catch
words that some sharp lawyer" could use against the state later
the following was stated:
...if lands are within the boundaries drawn on the map
for the conservation unit, it does not in any way
change the status of that State, native, or private
land or make it subject to any of the laws or
regulations that pertain to U.S. public lands, so that
those inholdings are clearly not controlled by any of
the public land laws of the United States.
MR. FINDLEY said these aren't the only quotes. There are great
quotes from Senator Stevens and others in the Senate who were
actually sponsors of the legislation that were Democrats. Both
sides of the isle knew what was going on. Yet the Park Service
changed its position in 1996 and people were "blown away" by the
court's interpretation.
CHAIR GIESSEL recognized former State Senator Scott Ogan in the
audience.
3:44:15 PM
MR. STURGEON summarized that this case is about more than
hunting moose on the Yukon River. It's about state sovereignty
and a promise made at statehood. Navigable waters are owned by
the State of Alaska. The submerged lands are owned by the State
of Alaska and rivers like the Yukon with all kinds of large sand
and gravel bars are owned by the State of Alaska, too.
It's a classic case of federal overreach. If one reads the
Congressional intent, one wonders how it ever got to the Supreme
Court. It's pretty clear that the federal government ignored the
law. He said this lawsuit is also about the federal government
keeping the promises it made in ANILCA, which is the grand
compromise in Alaska between economic development and conserving
special areas. Part of the deal was that the parks, preserves
and refuges were supposed to be managed differently than in the
Lower 48. That is what this case is all about.
MR. STURGEON said this lawsuit is also about the federal
government keeping promises it made to Alaska Native
Corporations: 18.1 million acres of the Native Corporations' 44
million acres are within the boundaries of these parks,
preserves, and refuges. The federal government, after the Ninth
Circuit when he filed the petition to cert the Supreme Court,
made it very clear that they weren't going to overuse this new
Sturgeon Ruling. However, Parks Service attorneys referenced
9(b) rules, which are used to manage the 26 oil wells within
parks and preserves, in the Sturgeon case in the Ninth Circuit
to include Alaska. Before the Ninth Circuit decision, Alaska was
exempt from those rules.
MR. STURGEON said the federal government has done a great
disservice to Alaska Native Corporations by not keeping promises
made in the Alaska Native Claims Settlement Act (ANCSA). The
corporations are supposed to use this land for economic
development for the betterment of their people. If they are
managed like a park, preserve or refuge, that won't happen. The
federal government has to know they have limits, too, and that's
what Section 103(c) does.
3:47:53 PM
What does Alaska have to lose? Mr. Sturgeon said management of
all its navigable waters within Conservation Units. He explained
that when parks, preserves and refuges were designated under
ANILCA, they weren't described like parks down south. The legal
descriptions for Yosemite and Yellow Stone National Parks, for
instance, are like squares, but in Alaska, ecosystem boundaries
were used, and those included a lot of state, private, and
native land. That is one of the reasons that Section 103(c) was
written.
3:49:05 PM
He said under the Ninth Circuit ruling the state could lose
management of its lands within the parks, preserves and refuges
and have to follow the Park Service's regulations. The 18
million acres of Native corporation land and private allotments
- homesteads and mining claims - would also have to follow Park
Service regulations.
MR. FINDLEY said he asked for "certiorari" from the Supreme
Court, and the government came back and said the Ninth Circuit
just gave a ruling that gives the Park Service plenary authority
over these non-federal lands within Alaska parks, but, hey,
don't worry about it. They weren't actually going to use the
power. But less than a month after they filed that brief, the
Park Service issued its new proposed revised 9(b) regulations
saying, for the first time, they were going to try to apply
these oil and gas regulations on Alaska inholdings. Yet, still
at oral argument before the Supreme Court the lawyer for the
solicitor general's office again stood up and said the Park
Service only exercises limited authority over these non-federal
lands. Chief Justice Roberts asked if she wasn't just relying on
the first provision of the Organic Act, which says any
regulation the Park Service deems necessary and proper to
regulate land.
MR. FINDLEY said he tries to make clear to the court that the
9(b) regulation is just the tip of the iceberg. Once the Park
Service sees they have this power, they're going to go with it.
3:50:54 PM
MR. STURGEON said it does make a difference which judge you get,
and Justice Roberts seemed to be very sympathetic to his case.
It first lost in District Court and then in the Ninth Circuit
they got three of the worst judges possible. But sometimes there
is a silver lining. In this case the silver lining could have
been that the Ninth Circuit's decision was way out there, and
maybe that is why the Supreme Court took the case.
3:52:28 PM
MR. FINDLEY said for those not familiar with the process, when
this case was filed before the U.S. Supreme Court, it was
important that it was a case of concern to a broad cross section
of Alaskans. So the case had many amicus briefs from a broad
coalition of people. Large Native Corporations, both regional
and village, came in, primarily because a lot of their Native
Claims Settlement Act lands were at issue; the Alaska delegation
- both Senators Sullivan and Murkowski and Representative Young
- filed a brief; a brief was filed by a coalition of development
organizations and some outside organizations like Safari Club,
Pacific Legal, Southeastern Legal, and of critical importance,
the State of Alaska.
He explained that the State of Alaska (SOA) had moved to
intervene in the case and actually participate as a full party
at both the District Court and Ninth Circuit level, primarily on
the basis that the Park Service had a practice of making the
state get permits to do research on its own land. Yet, somehow
the Ninth Circuit found that that wasn't sufficient injury for
the state to have standing. The state came back in at both the
cert petition and the merit stage to file an amicus brief for
the Supreme Court. They filed an excellent amicus brief - Ruth
Botstein and Janell Hafner, Assistant Attorneys General, did
amazing work. The state also asked for divided argument, which
the Supreme Court sometimes grants when a sovereign wants to
argue alongside a private party. Ruth Botstein argued the case
and did a "fantastic job." He said the state was a wonderful
partner throughout the whole ordeal.
3:53:48 PM
SENATOR STEDMAN joined the committee.
3:54:48 PM
SENATOR MICCICHE asked if any Alaska-based NGOs had filed briefs
in opposition to his case.
MR. FINDLEY answered the National Park Service Conservation
Association, the Trustees for Alaska, and the Subsistence Users
Coalition/Foundation, along with lawyers from both Alaska and
British Columbia (B.C.) filed on the other side.
MR. STURGEON said the Supreme Court hearing was pretty
incredible, and he was very fortunate to have some very good
attorneys. It was a very expensive, very lengthy process. At one
point he had to make a decision to pull out the stops realizing
that he is representing more than just John Sturgeon; he is
representing all the people of Alaska. He decided to do whatever
it would take to win. That included hiring Supreme Court
specialists in D.C.
MR. FINDLEY related that he was in D.C. for 10-12 days before
the argument doing nothing for 14 hours a day but preparing for
it. He was there with two other lawyers from his firm, with Ms.
Botstein and Ms. Hafner from the AG's office, and Will Consovoy,
the D.C. lawyer. They did research and put together materials,
had several moot court sessions - moot court before the National
Association of Attorneys General and with a bunch of Supreme
Court practitioners from D.C., moot court at the Heritage
Foundation, and a moot court at Georgetown Law School. In each
one of those sessions both he and Ruth were grilled for over an
hour. It really helped them hone their presentation. They didn't
get any surprise questions, because of their elaborate
preparations.
3:58:39 PM
MR. STURGEON said because of the magnitude of this case, Mr.
Findley did whatever he needed to do to prepare for it. He
doesn't know how they did, but he is optimistic. All he can say
is that he would have much rather been Mr. Findley than the
federal attorney whose questions were a lot more hostile. He was
told by the specilized attorneys that you really can't tell what
the justices are thinking from the questions they ask.
MR. STURGEON point out a question that Supreme Court Justice
Alito asked the federal attorney. Justice Alito asked why the
federal brief contained an incredibly small amount of space on
defending the Ninth Circuit's decision. That was important,
since it was the Ninth Circuit's decision that was the reason
for the Supreme Court hearing the case.
MR. FINDLEY echoed what Mr. Sturgeon said, that it's dangerous
to speculate about the Justices' questions. His team was very
prepared, and it was an honor and a privilege to appear before
that court.
CHAIR GIESSEL said after they finished that day, the Attorney
General, Craig Richards, visited her office and dropped off the
transcript, and he was very excited at what he read. He thought
they had done very well and was feeling pretty optimistic about
the outcome.
MR. STURGEON said this case cost way more than he thought it
would. Prior to being accepted by the Supreme Court, District
and Ninth Circuit courts and preparing for the appeal to the
Supreme Court cost about $325,000. He thanked Ed Rasmussen for
helping him with it. The Supreme Court portion was $327,000.
Everyone was prepared, but it took a lot of time, money and
effort. The total cost is $652,000, assuming the case is now
done.
4:05:34 PM
The best thing in this whole lawsuit is the support he received
from Alaskans. Mr. Sturgeon said it has been absolutely
incredible. He has raised $250,000 so far, and he never asked
anyone for a penny. He related the numerous fund raising
efforts.
4:07:15 PM
MR. FINDLEY noted that this was the final summary of any case
that Supreme Court Justice Antonin Scalia heard before he
passed. Mr. Findley summarized the government's position by
reading his closing statement:
The government's position here, they keep saying their
authority is limited, and Mr. Chief Justice hit the
nail on the head. They're relying on the Organic Act
which allows them to enact any regulations they feel
necessary at any time. They've already done that with
the 9(b) oil and gas regulations, seeking to apply
those to Non-Federal land within Alaska. And the hits
are going to keep on coming unless this Court stops
this interpretation and goes back to what 103(c) was
meant to do, which was to prevent the Park Service
from taking these lands that aren't owned by the
government and regulating them as though they are part
of the park.
And the second point want I want to make-
There's a lot of discussion about whether ANILCA
covers official navigable waters or not. The clear
statement rule covers that question. And in that
circumstance, it's a question of is anything in the
statute clearly saying we are taking away State
authority over navigable waters? You will not find the
term navigable waters in the statute once. Let's
contrast this to other park enabling legislation. This
is for Olympic National Park, and you'll find this at
16 U.S.C. 251(n). And here's what it says: "The
boundary of Olympic National Park Washington is hereby
revised to include within the park all submerged lands
and waters of Lake Ozette, Washington, and the Ozette
River, There's your clear statement.
4:09:52 PM
MR. STURGEON concluded that was the summary of his journey from
a broken down hovercraft on the Yukon River to standing in front
of the highest court in the land.
CHAIR GIESSEL said she heard that at least one of the Justices
kept referring to it as a "Hoover craft."
MR. FINDLEY said that was Justice Sotomayor.
SENATOR STOLTZE remarked that years ago the legislature took a
lot of lead in fighting the federal government, and he commended
Ted Popely and Ron Somerville who had the uncanny vision to hire
future Interior Secretary Norton and future Justice and later
Chief Justice Roberts to engage in Alaska's service. So,
historically Justice Roberts has been involved in Alaska issues.
CHAIR GIESSEL recognized former Representative Bill Thomas in
the audience.
4:13:37 PM
JANELL HAFNER, Assistant Attorney General, Department of Law
(DOL), Juneau, Alaska, said she is one of the attorneys that
represented the State of Alaska as amicus curia in Mr.
Sturgeon's case before the Supreme Court.
RUTH BOTSTEIN, Assistant Attorney General, Department of Law
(DOL), Anchorage, Alaska, acknowledged Ms. Hafner's
introduction.
MS. HAFNER said they both work in the opinions, appeals and
ethics section of the DOL and specialize in civil appellate
practice. They were co-counsel on this case. Ms. Botstein argued
and appeared on the state's behalf at oral arguments before the
Supreme Court last month. They appreciate the invitation to be
at today's meeting and they were very proud to support Mr.
Sturgeon in this very important case.
She gave a brief overview of the state's interests, which were
slightly distinct from Mr. Sturgeon's in this case. She
explained that the state has long been concerned with the extent
to which the Park Service and other federal land management
agencies have attempted to regulate lands that the federal
government does not own. This case has always been about who has
regulator control and authority over state lands and waters: the
State of Alaska or the federal government? From a litigation
perspective, DOL involvement began in 2011 after Mr. Sturgeon
filed his lawsuit. At that point, one of the senior assistant
attorneys general who specializes in natural resources brought
suit on behalf of the SOA against the Park Service in a very
similar case with a different pattern.
The hovercraft ban that was the subject of Mr. Sturgeon's
lawsuit was one type of a small class of regulations that the
Park Service had been attempting to roll out and expand over
state lands and waters. Another regulation in effect required
the ADF&G to apply for a permit to access a state-owned exposed
gravel bar on the Alagnak River in Katmai National Park for the
purpose of conducting a "benign scientific study" of genetic
sampling on salmon stock. The state was not accessing federal
lands at any point. It's a fairly well established and
undisputed principle of the law that the state owns the
submerged lands and the beds below navigable rivers, and part
and parcel of that ownership right is the right to regulate and
manage the waters that flow above the submerged lands for
navigation and for fishing. That is a very essential component
of state sovereignty, and that right has passed to the State of
Alaska as a matter of constitutional grace under what is known
as the Equal Footing Doctrine, and it was also guaranteed in the
Submerged Lands Act, which Congress passed in 1953.
4:17:32 PM
MS. HAFNER said they filed suit against the Park Service; the
case proceeded on a companion track and was handled by the same
court as Mr. Sturgeon's. The cases were essentially treated as
effectively consolidated. The theme of the DOL case was very
similar in that the state said ANILCA was intended in many ways
to strike a balance. It is in one part a conservation act, and
no one is denying that. But it also made very clear that it
would protect the state's ability to provide for the self-
sufficiency of the Alaskan people. One of the ways it did that
is through Section 103(c). They focused on that provision as
being an essential safeguard in allowing the state to continue
to have authority to manage and regulate its resources.
Ultimately, they were unsuccessful at the District Court level
and at the Ninth Circuit, as well.
At the Ninth Circuit the court took a little bit of a divergent
approach with respect to the parties before it, and it dismissed
the ADF&G's case against the Park Service on "standing grounds."
"Standing" is a legal doctrine that says that a plaintiff must
have a concrete injury and the court, if it rules in that
person's favor, must be able to give some relief. It won't be
just an abstract or an advisory ruling. The idea behind the
doctrine is to prevent a party from just airing a general
grievance.
4:19:48 PM
MS. HAFNER explained that in the Ninth Circuit's view, because
the scientific research study that the state had used the permit
for was already completed, it wouldn't be entitled to any relief
if it won, because the cost of complying with the permit and
some of the harms they had focused on were already over and done
with. It felt very differently about Sturgeon's claim, because
he had anticipated using his hovercraft to access hunting
grounds each year, and so it reached the merits of his legal
question on what Section 103(c) of ANILCA really means.
At that point, the DOL had a few options. With two adverse
rulings, one on the core legal question of what 103(c) of ANILCA
means and the other if it protects the state's management
authority. Then they had the adverse decision on standing. The
state took a hard look at what their goal was, and the most
important thing was to get the legal decision that the Ninth
Circuit made on the question of 103(c) reversed. So, they
evaluated what would be the best and most effective way of
getting that question before the Supreme Court and decided to
devote their resources to drafting a strong amicus brief and
participating in Mr. Sturgeon's petition for cert.
MS. HAFNER related that decision was informed by a number of
reasons including that the Supreme Court likes legal cases to
come to it in a very straight forward, clean, legal fashion with
preferably not a lot of messy facts and not a lot of threshold
questions. If the court sees an off-ramp and doesn't have to get
to the meat of an issue, it will take it. Both the state and Mr.
Sturgeon agreed that they wanted the court to really reach this
issue and to rule that the Ninth Circuit really got it wrong.
She said that the team was very heartened and pleased when the
court accepted Mr. Sturgeon's petition and then incredibly
pleased to have the court grant the state's request to appear at
oral argument. It's not unprecedented, but it is a very
exceptional opportunity to have, because the state was not a
party. It was the ultimate opportunity to present and vindicate
the state's sovereign interest in this case, and illustrate for
the court why they believe that this decision has meaning not
just to folks like Mr. Sturgeon, but really impugns the state's
sovereignty and its sovereign right to manage its resources and
to put that into some real perspective. She added that that
opportunity was made possible, in large part by the department's
great working relationship with Mr. Sturgeon and his counsel,
who were very gracious in ceding time that they had at the
podium to the State of Alaska. Their strong relationship was
very effective in refining the arguments and augmenting and
supplementing the approach that each took with respect to
putting these issues before the court.
MS. HAFNER said they had two rounds of briefing: one was at the
cert stage, the stage at which one asks the Supreme Court to
take the case. It's when you convince the court why your case
matters and what the broader implications and interests are, and
then once it decides to take the case, there is another
opportunity to submit another round of briefing. The state filed
a second brief where they really attempted to convince the court
that the Ninth Circuit got it wrong, really highlighting the
state's interest and their primary goal of why the state's
sovereign interest in its natural resource management matters so
much.
She said Congress does not lightly take away a state's authority
to manage its lands and waters. That is a legal doctrine that
DOL built on. The court knows that, and it's something that is
invoked fairly frequently, as are the notions of federalism, the
state's rights, and state sovereignty. They tried to drive home
the practical and bring that down from an academic level and say
those issues matter in Alaska in a very unique way that they
don't matter in the rest of the world, and to say that there are
real world harms here that extend to Mr. Sturgeon and well
beyond to the state as a whole. They explained, in part, that
the Statehood Act, ANILCA and ANCSA were this trilogy of
legislation that all on their own way really tried to account
for the Alaska-specific needs and challenges. They highlighted
the size of the state, the remote nature, the fact that so many
Alaskans live unconnected from the road system, what not living
on the road system looks like here, and really highlighted the
transportation and infrastructure barriers that exist throughout
much of the state. Part of that was to say to someone who is
living in Washington, D.C., who might not be so familiar with
what Alaska looks like, when you impose an access restriction on
a river, or you authorize the Park Service to roll out these
regulations on a nationwide basis and lump in Alaska lands and
waters, you're doing a lot more than simply telling someone they
can't kayak on the Potomac River or curtailing someone's ability
to use a snow machine on a well-used trail in Glacier National
Park. To Alaskans those sorts of access restrictions mean rural
Alaskans can't get fuel delivered in the winter and that winter
ice road traffic will be impeded, that you will impede
commercial fuel shipments to hub communities, medical supplies,
and the ability to get to and from one's home. That was the
theme of their case: Number 1, we have a sovereign right to
manage our resources and that has historical importance here to
provide for our people and that number 2, given these unique
challenges and the realities of what rural Alaska and Alaska as
a whole looks like, there is more of a value to local decision
making and the need for the state legislature and decision
makers who have expertise in and familiarity with the reality of
daily life in Alaska to be making these sorts of land management
decisions. They framed the sovereign right to manage the lands
and resources in a very contemporary real world way and showed
how the ramifications of this decision and taking away that
local control would matter and harm everyday Alaskans.
4:27:09 PM
MS. BOTSTEIN said she is in the opinion, appeals and ethics
section of the DOL. She echoed all the previous speakers'
comments. She said it was really an honor and a privilege to
represent Alaska in this case. Everyone in the state has
something to gain or lose here. Handling this case within the
Department of Law was also a wonderful thing. In the past they
have hired outside counsel like now Chief Justice John Roberts
to work with the state on federal cases at this level.
She said that one can't predict the outcome based on the
argument, but it went well. The court was very interested and
they had a chance to clarify some confusion that will be helpful
as the court makes its decision, and she was pleased that she
got a chance to talk about what life is like for rural Alaskans
and how these access restrictions that the federal government
wants on state use and access of its lands and waters really
affects everyday people. This is always valuable as many people
who live in major urban East Coast areas really don't have any
idea of what it's like to live in Alaska and depend on a river
to travel or to hunt for moose to feed their family.
4:30:54 PM
ED GRASSER, Vice President, Safari Club International (SCI),
Palmer, Alaska, said he is chair of their Governmental Affairs
Committee based in Washington, D.C. He said the previous
speakers ably covered the case. He thanked Mr. Sturgeon for
taking the case forward and everyone who donated to the cause.
MR. GRASSER said SCI is the world's largest hunting-based
conservation organization. They have been engaging with the
federal government for the last five years, starting with the
polar bear issue that was based, in SCI's view, on erroneous
information. The Three Amigos case in Texas is where U.S. Fish
and Wildlife Service (FWS) told some SCI members they couldn't
hunt antelope, an exotic species imported from Africa, on
private land. Because they were endangered in Africa, they
couldn't be hunted on the ranch. Never mind that the only chance
for reintroducing them into the wild was the ranches in Texas
who were hosting the animals. They had a good breeding program,
and the alternative for them since they couldn't charge for
hunting any more to help sustain their operations, was to
extirpate those herds. That was totally okay with U.S. FWS.
So, the absurdity of some of these federal rules coming down the
pike, whether they are affecting people like Mr. Sturgeon or
their members in Texas, is that they are happening in not just
Alaska, but in the rest of the states, as well. They just won a
case in Florida on black bear hunting and are entering into a
joint case in North Carolina on wolves. His point is that the
federal government is moving forward with efforts to regain or
take over wildlife management across the nation, which was a
central concern in the Sturgeon case.
MR. GRASSER said SCI just had a huge meeting in Las Vegas and
met with National Rifle Association leadership and other
organizations. Now 48 states, including Alaska, have a
Sportsmen's caucus to try to build a team to fight back. Even
the eastern states are beginning to realize they are in
jeopardy.
MR. GRASSER said a savings clause in a lot of federal acts
including ANILCA basically says that nothing in the act neither
diminishes nor enhances state management authority. They want
that changed to make it clear that the state does have
management authority. He hoped Alaska would be at the forefront
of this fight. He said he thanked Mr. Sturgeon for bringing this
case forward, and that it was a travesty that an individual had
to bear the financial cost for a case that is critical to the
state.
SENATOR HUGGINS asked the date and time of the SCI meeting in
Anchorage.
MR. GRASSER replied Feb 27, and it's the biggest sportsmen's
event of the year in Alaska.
4:37:51 PM
MR. STURGEON thanked Alaskans for their support; it's been
incredible. Keep up the fight, he said, federal overreach is not
going to stop.
SENATOR MICCICHE thanked him, and said he was proud that the
state contributed to this effort. It might not have been
financial help, but the time and dedication from state personnel
to assist this case was invaluable.
MR. STURGEON concurred. Had the State of Alaska not been
involved, he said it was highly unlikely they would have pursued
the case to the Supreme Court.
SENATOR HUGGINS said Mr. Sturgeon is in the great Alaskans
category.
4:40:37 PM
SENATOR COGHILL thanked Mr. Sturgeon, saying that the
legislature looks for every way it can to stand up to the
federal government, and he was glad that the full weight didn't
fall on the State of Alaska.
MR. STURGEON closed by saying that the state's help was
invaluable; the attorneys were top notch.
SENATOR COGHILL also thanked the attorneys from the State of
Alaska, and said he hoped this one could "go over the top."
CHAIR GIESSEL thanked Mr. Sturgeon and the attorneys.
4:45:51 PM
Finding no further business to come before the committee, Chair
Giessel adjourned the Senate Resources Standing Committee
meeting at 4:45 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| ASRC Letter Regarding Sturgeon Case - SRES - Feb 17.pdf |
SRES 2/17/2016 3:30:00 PM |
John Sturgeon-EPA |
| SCI Testimony to SRES-02-17-2016.pdf |
SRES 2/17/2016 3:30:00 PM |
john Sturgeon/EPA |
| SCI Testimony to U.S. Senate Committee on Public Works-02-17-2016.pdf |
SRES 2/17/2016 3:30:00 PM |
John Sturgeon/EPA |
| John Sturgeon-Final PPT-02-17-2016.pdf |
SRES 2/17/2016 3:30:00 PM |
John Sturgeon/EPA |