Legislature(2019 - 2020)BUTROVICH 205
03/11/2019 03:30 PM Senate RESOURCES
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| Audio | Topic |
|---|---|
| Start | |
| Overview: Alaska Department of Law Overview of State Litigation on Federal Issues | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
SENATE RESOURCES STANDING COMMITTEE
March 11, 2019
3:30 p.m.
MEMBERS PRESENT
Senator Chris Birch, Chair
Senator John Coghill, Vice Chair
Senator Cathy Giessel
Senator Lora Reinbold
Senator Click Bishop
Senator Scott Kawasaki
Senator Jesse Kiehl
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
OVERVIEW: ALASKA DEPARTMENT OF LAW OVERVIEW OF STATE LITIGATION
ON FEDERAL ISSUES
- HEARD
PREVIOUS COMMITTEE ACTION
No previous action to record
WITNESS REGISTER
SETH BEAUSANG, Chief Assistant Attorney General
Natural Resources Section
Alaska Department of Law
Juneau, Alaska
POSITION STATEMENT: Provided an overview of state litigation on
federal issues.
TOM LENHART, Assistant Attorney General
Natural Resources Section
Alaska Department of Law
Juneau, Alaska
POSITION STATEMENT: Provided an overview of state litigation on
federal issues.
EMMA POKON, Assistant Attorney General
Environmental Section
Alaska Department of Law
Juneau, Alaska
POSITION STATEMENT: Provided an overview of state litigation on
federal issues.
ACTION NARRATIVE
3:30:20 PM
CHAIR CHRIS BIRCH called the Senate Resources Standing Committee
meeting to order at 3:30 p.m. Present at the call to order were
Senators Coghill, Kawasaki, Giessel, Kiehl, Bishop, Reinbold,
and Chair Birch.
^OVERVIEW: Alaska Department of Law Overview of State Litigation
on Federal Issues
OVERVIEW: Alaska Department of Law Overview of State Litigation
on Federal Issues
3:30:52 PM
CHAIR BIRCH announced that the committee will hear an overview
from the Alaska Department of Law regarding federal issues and
conflicts. He noted that the federal government owns more 60
percent of all land in Alaska, approximately 224 million acres;
this fact combined with the problem of federal overreach on
state, local, tribal, and private lands set the stage for
disagreement between Alaska and the federal government on a
range of issues related to land access, fish and game
management, and the development of the state's mineral, oil and
gas resources.
He said thankfully the state has the attorney general and the
Alaska Department of Law whose duty it is to assert and defend
Alaska's interest in issues with the federal government, issues
that matter deeply to Alaskans and that effect the state's
ability to manage its destiny.
He noted that committee members have received copies of the
current Alaska Department of Law list of federal issues and
conflicts dated January 21, 2019. He announced that attending
the committee to brief members on the 25 cases on the
department's list are Seth Beausang, Chief Assistant Attorney
General; Tom Lenhart, Assistant Attorney General; and Emma
Pokon, Assistant Attorney General.
3:32:46 PM
SETH BEAUSANG, Chief Assistant Attorney General, Natural
Resources Section, Alaska Department of Law, Juneau, Alaska,
said the department will update the committee on federal
litigation matters. He referenced a list of cases that the
department will address during their overview. He said the group
will skip cases that were reviewed in earlier committee
meetings, noting that the previously addressed cases dealt with
navigability issues that the state is handling, one case is the
Sturgeon case that is before the U.S. Supreme Court.
3:33:50 PM
TOM LENHART, Assistant Attorney General, Natural Resources
Section, Alaska Department of Law, Juneau, Alaska, explained
that for the last 12 years he has been counsel for the State on
the Roadless Rule and most things related to the Tongass. He
specified that he would review the topic, "access and land"
regarding federal issues and conflicts cases or matters.
He said the first case he will address is the Roadless Rule and
the Tongass Land Management Plan because talking about roadless
litigation without talking about the management plan is
impossible.
3:35:01 PM
He addressed the Roadless Rule case as follows:
• Roadless Rule:
o State of Alaska v. U.S. Department of Agriculture:
square4 D.C. Circuit Court;
square4 17-5260.
o Assistant Attorney Generals:
square4 T. Lenhart,
square4 S. Lynch.
o Alignment with Feds:
square4 Not aligned.
o Brief Description:
square4 State challenged the application of the Roadless
Rule in Alaska. The Roadless Rule prohibits the
building of roads in wilderness areas, which
essentially shuts down resource development in
many areas of the Tongass. On a parallel track,
the State is pursuing a regulatory fix for
Alaska.
o Status:
square4 On the regulatory fix, the State recently entered
into an MOU for cooperating agency status with
the U.S. Department of Agriculture to work on a
Tongass state specific rule to replace the
Roadless Rule. The rulemaking process is
anticipated to take 18 months. In the litigation,
the district court upheld the Roadless Rule, and
the State appealed. Briefing has been completed,
but the appellate court granted intervenor's
request to put the case on hold until the
rulemaking is done.
MR. LENHART explained that in 2001 during the last week of the
Clinton Administration, the USDA promulgated the Roadless Rule,
it effectively withdrew from future development 60 million acres
of national forest nationwide, equivalent to 2 percent of all
land in the U.S. In Alaska, in addition to the Chugach, road
construction and timber harvest was prohibited on 9-million
acres of the Tongass National Forest which dramatically affected
the Alaska timber industry and other activities as well.
He said in the 18 years since the USDA promulgation, the State
has remained very busy in seeking relief from the Roadless Rule.
The approach has been a three-pronged effort and all branches of
the federal government. The State has been in federal court
almost nonstop. The State has worked closely with USDA in
rulemakings to try and obtain some relief. The State's
delegation in Washington, D.C. has also been active and on
numerous occasions they have introduced federal legislation to
exempt the Tongass National Forest, but the attempts have not
been successful to date.
He addressed where the State currently is in the courts
regarding the Roadless Rule in the Tongass, noting that the rule
was not in effect from 2001 to 2011 due to successful litigation
and USDA rulemaking exemptions; however, an "en banc" decision
in 2011 by the U.S. Court of Appeals for the Ninth Circuit
invalidated the "exemption rule" that applied to the Tongass.
The state filed new litigation challenging the underlying
Roadless Rule in the U.S. District Court for the District of
Columbia and eight years later the State is still fighting the
battle in the courts.
He detailed that the State has been through court battles on
venue standings and statute of limitations, noting that the
State received a dismissal on a statute of limitations where the
ruling was taken up to the D.C. Circuit Court where it was
successfully reinstated. Finally, several years ago the district
court ruled against the State on the merits, the State
immediately appealed to the D.C. Circuit; the case has been
fully briefed for some time, was on the docket for oral
arguments the fall of 2018, but the environmental interveners in
the case moved to hold the case in abeyance pending the final
outcome of the USDA's rulemaking. The State is looking at ways
to get the abeyance lifted. If the abeyance is lifted and the
case is moved to a final decision the remedy could result in
invalidation of the entire Roadless Rule either nationwide, in
Alaska, or just the Tongass.
3:38:25 PM
MR. LENHART addressed the matter of an amendment to the Tongass
Land Resources Management Plan as follows:
• 2016 Amendment to the Tongass Land Resources Management
Plan (TLMP):
o Assistant Attorney Generals:
square4 T. Lenhart,
square4 S. Lynch.
o Alignment with Feds:
square4 Uncertain.
o Brief Description:
square4 The 2016 TLMP amendment fully incorporated both
the Roadless Rule and the Secretary of
Agriculture's directive to rapidly transition
timber harvest from old growth to young growth.
The result would effectively place millions of
additional acres off-limits to timber harvest and
other resource development. The timber industry
would likely be forced out of business while
utilities, mining and other industries would be
substantially harmed.
o Status:
square4 The Secretary of Agriculture granted the State's
petition for a rulemaking to amend the TLMP,
along with the State's petition for a rulemaking
on the Roadless Rule. USDA published a Notice of
Intent to commence the rulemaking on August 30,
2018. A final rule is expected by summer of 2020.
He detailed that in January 2018 the State petitioned Secretary
of Agriculture Sonny Perdue to seek both a new rulemaking to
exempt the Tongass and to revise the 2018 Tongass Land
Management Plan. In August 2018, Secretary Perdue granted the
State's petition, not in quite the way the State would have
liked, but there is rulemaking that is well underway with one
alternative to completely exempt the Tongass. The State is
actively involved in the rulemaking because the State is a
cooperating agency in committees with the USDA. A draft
Environmental Impact Statement (EIS) is expected to be issued in
July 2019 and a new rule to be in place within one year of the
EIS. The alternatives will probably range from "no action" up
through "full exemption" for the Tongass.
MR. LENHART explained that even if the State gets a new
exemption rule or wins the court decision, the 2016 Land
Management Plan would come in. Under the National Forest
Management Act it's required that every national forest have a
written management plan and that the U.S. Forest Service take
all actions in compliance with the plan; in effect, the forest
plan has the effect of law because a violation of the plan by
the U.S. Forest Service is automatically a violation of the
National Forest Management Act and fully enforceable in the
federal courts. The 2016 Land Management Plan effectively, not
technically but effectively, is law. When the Land Management
Plan was revised in 2016 the U.S. Forest Service took most of
the important restrictions in the Roadless Rule and put them
into the Land Management Plan; however, the Roadless Rule was
not just referenced so that if the Roadless Rule is revised the
restrictions are revised, the restrictions were actually lifted
substantively so that even if the Roadless Rule goes away, even
if there is a new exemption rule, the Land Management Plan would
have to be amended or the independent restrictions would still
be enforceable prohibiting tree cutting and road building. The
State petition asked that both be done, but the decision was
made to first do the rulemaking and then amend the Land
Management Plan if necessary.
He summarized that the finish line is not quite in sight yet,
after 18 years there is a little while to go.
3:41:32 PM
SENATOR COGHILL asked that Mr. Lenhart address how the
management areas under Roadless Rule impacts neighboring
properties.
MR. LENHART specified that the Roadless Rule does not apply
outside of its boundaries; however, the rule may limit access to
properties that are next door. He conceded that Southeast Alaska
is a patchwork of federal and state lands.
SENATOR COGHILL asked if there has been litigation on the
Roadless Rule's impact on neighboring properties.
MR. LENHART replied not directly because there is no legal
context.
SENATOR COGHILL conceded that his argument is economically
related. He remarked that the inability to standup an industry
because of the Roadless Rule has been significant.
MR. LENHART replied that the impact has been huge. He conceded
that state timber sales are not going to support a sawmill and
federal timber sales are needed to maintain the timber industry.
3:44:10 PM
He addressed the "Shelter Cove Road" case as follows:
• Shelter Cove Road:
o State v. U.S. Forest Service:
square4 1:16-cv-00018;
o Greater Southeast Alaska Conservation Community v.
Stewart:
square4 State intervened in support of defendant;
square4 1:16-cv-0009.
o Assistant Attorney General S. Lynch.
o Alignment with Feds:
square4 Aligned on the end result and not on
justification.
o Brief Description:
square4 The State intervened to defend the building of
Shelter Cove Road in Ketchikan. Contrary to the
federal government's position, the State asserted
that it has a Section 4407 easement for the road.
This would mean no environmental review is
needed. To ensure the 4407 issue is addressed,
State brought a separate lawsuit on that issue.
The lawsuits have been consolidated and, in an
effort to end both cases, the USFS issued the
4407 easement just prior to the State's motion
for summary judgment on all remaining issues.
o Status:
square4 In the environmental group's challenge to the
State's road project, the court issued partial
summary judgment in the State's favor on all
environmental permitting issues and dismissed all
4407 issues with prejudice on a finding of no
NEPA of NFMA requirements for these easements. In
the State's companion suit against the USFS, on
November 9, 2018 the State filed a motion for
summary judgment seeking declaratory judgment on
the scope and requirements for the 4407
easements. The USFS response is due after the
federal government shutdown. Construction on the
road continues while the case proceeds.
MR. LENHART detailed that "Shelter Cove" was a road construction
project and the federal government was first sued by
environmental plaintiffs trying to stop the project. The State
intervened as a codefendant on the side of the federal
government. The environmental case has been resolved in the
favor of the federal government and the road is being built;
however, one of the arguments that was brought by the
environmental groups was regarding the State's "4407 easements"
that were granted to Alaska from Congress. The argument from the
environmental plaintiffs is that road construction on the
easements required a full National Environmental Policy Act
(NEPA) process and an Environmental Impact Study (EIS). The
State contended that any impact statement was not needed but the
federal government agreed with the environment plaintiffs. The
court has dealt with the case in terms of the plaintiffs,
finding in favor of the federal government on all counts;
however, because of the State's disagreement with the federal
government on "440 easements," the State filed a cross-action on
the federal government that was decided in the State's favor but
continued action was taken for a declaratory judgement in an
attempt to permanently put to rest the remaining questions on
all of the other "4407 easements."
3:46:05 PM
He addressed the "4407 easements" and explained that in 2005 in
the federal highway bills, there were 19 transportation and
utility easements granted by Congress to the state of Alaska
that were not contingent on anything. The problem has come in
because in 2005 the easements were not well surveyed legal
descriptions, they were red-lines on a map. The work was not
properly done to locate for roadbuilding purposes. When refined,
the easements were found to go through lakes, over cliffs, so
most of the red-lines were not accurate for road building. The
issue is the federal government's position has been if you move
outside of the red-line to relocate the easement, even if the
move is feasible with less environmental impact, the change is a
new federal decision subject to NEPA, an EIS, fully reviewable,
and subject to court action. The State's argument has been the
easement shows a right to go from "point A to point B" and there
is flexibility for the State to figure out where the best
alignment. Once the alignment and the permitting process with
the Army Corps of Engineers and other needed federal permits are
attained, all the U.S. Forest Service has a right to do is the
administerial act of issuing an easement and there is no
decision process. Congress did go back to the bill to clarify
the intent for the easements; that is the issue remaining before
the federal district court in Alaska and the State is hoping for
a favorable ruling where the 15 remaining "4407 easements"
become a "done deal."
3:48:17 PM
SENATOR COGHILL asked what the timeline is for the ruling on the
easements.
MR. LENHART answered that the briefing should be done within 30
days. He said once the briefing is done, he doubts the judge
will hear arguments and suspected that the case will be ripe for
a decision within two years.
CHAIR BIRCH asked what an example is of a "4407 easement." He
inquired if "Shelter Cove Road" is a "4407 easement."
MR. LENHART answered yes. He detailed that the title "4407"
simply is the section in the 2005 Highway Bill that provided the
easements.
SENATOR COGHILL noted U.S. Congressman Don Young can comment on
the "4407 easements" as well.
MR. LENHART referenced the "King Cove Road" matter as follows:
• King Cove Road:
o Assistant Attorney General T. Lenhart.
o Alignment with Feds:
square4 Not aligned.
o Brief description:
square4 After attempts under the previous federal
administration to complete a land exchange, King
Cove and the U.S. Department of Interior entered
into a 2017 land exchange which has been
challenged by environmental groups. The purpose
of the land exchange is to build a road between
the community of King Cove and Cold Bay Airport,
specifically for emergency purposes. The State is
not a party to the litigation but will monitor
the case closely.
o Status:
square4 On August 24, 2018, the State filed an amicus
brief in support of the briefs filed by the U.S.
Department of Interior and the King Cove Group,
seeking to uphold the land exchange. The case has
been fully briefed, and the parties are awaiting
a decision from the court.
MR. LENHART detailed that the State has been litigating the King
Cove to Cold Bay road through the Izembek National Wildlife
Refuge for many years. The 2009 land exchange between state and
federal lands was only subject to the U.S. Secretary of
Interior's approval based on an EIS, but former Secretary Jewel
was against the road. An appeal to the decision was withdrawn
because of the change in federal administrations and a new land
exchange was worked out between the U.S. Department of Interior
and the King Cove Corporation in 2017. Under the National
Environmental Policy Act (NEPA), there is a special provision
that exempts native corporations from an EIS for federal land
exchanges, but a lawsuit challenged the land exchange. The State
was not party to the 2017 land exchange, but the State filed an
amicus brief supporting the land exchange; that case has been
briefed, is ripe for a decision, and awaits U.S. District Judge
Gleason's ruling. Based on Judge Gleason's ruling, there is the
possibility of a circuit court action.
He explained that the land exchange itself does not authorize a
road, noting that the process is strictly a real estate
transaction. Once the land exchange is completed there would
have to be construction permits requested through the U.S. Army
Corps of Engineers. The Alaska Department of Transportation and
Public Facilities has been involved in identifying the best
route and lands sought in the land exchange. Should approvals be
granted, Alaska will play a key role in designing and
constructing the road which will ultimately be turned over to
the borough.
3:54:48 PM
SENATOR KAWASAKI asked what the "decision tree" is regarding
whether to be party to litigation.
MR. LENHART replied that his experience has been to have
discussions with the active litigants, generally the State gets
invited. The decision ultimately goes to the lieutenant governor
or the governor.
MR. BEAUSANG added that requirements must be met to intervein in
a case where a certain legal standing is needed whereas
appearing as an "amicus" is easier to weigh in. Possible
consideration to not being a party is when participation causes
a disruption or complication to the party being supported. If
the State intervenes as a party then the State would have
certain legal rights to weigh in substantively, rights that are
not available when an amicus brief is filed.
3:57:15 PM
SENATOR KAWASAKI asked if there are other states with Roadless
Rule problems that have come forward with amicus brief filings
to help a position or precedent.
MR. LENHART answered that Wyoming has been a lead state for some
time in challenging the Roadless Rule. Wyoming had an injunction
against the Roadless Rule that the State filed an "amicus" in
their state. Colorado has a state-specific Roadless Rule which
is what the State is now engaged in doing; however, the State
has never had an amicus filing by other attorney generals.
MR. BEAUSANG addressed the "Eastern Interior Resource Management
Plan" as follows:
• Eastern Interior Resource Management Plan (EIRMP) Adopted
by the Bureau of Land Management (BLM):
o Assistant Attorney General A. Nelson.
o Alignment with Feds:
square4 Not aligned.
o Brief description:
square4 The EIRMP, adopted January 6, 2017, recommends
unjustified mineral closures and conservation
designations that are inconsistent with Alaska
National Interest Lands Conservation Act (ANILCA)
and Federal Land Policy Management Act's multiple
use mandate. The EIRMP also fails to provide for
lifting outdated Alaska Native Claims Settlement
Act (ANCSA) "d-1" withdrawals unless new
conservation withdrawals are implemented.
o Status:
square4 The Government Accountability Office determined
in November 2017 that the EIRMP is a rule under
the Congressional Review Act (CRA), which means
Congress has 60 session days to repeal it;
however, BLM has not submitted the Plan to
Congress as required by the Act and it's unclear
whether the 60-day period has already run or has
yet to begin. The State continues to monitor
congressional and agency action on the issue and
evaluate options, including administrative
action, litigation, or working with Congress to
repeal it.
MR. BEAUSANG said BLM's EIRMP covers an area in eastern Alaska,
specifically the Fortymile River region that is high in mineral
potential. The State will watch BLM's recommendations from the
EIRMP and consider taking litigation action.
4:00:37 PM
SENATOR COGHILL asked him to confirm that within the EIRMP there
are areas of environmental concern that if the "d-1"
restrictions are not lifted the outcome is a de facto wilderness
taking.
MR. BEAUSANG answered that Senator Coghill is exactly right. He
emphasized that the plan is a recommendation at this point. He
opined that what the BLM is trying to do is rather than lifting
the withdrawals they are almost creating a "super conservation
system" that would really impact development or natural resource
management.
He addressed "Lands into Trust" as follows:
• Lands into Trust:
o Assistant Attorney General A. Nelson.
o Alignment with Feds:
square4 Uncertain.
o Brief description:
square4 After the district court in Akiachak v.
Department of Interior (DOI) found in favor of
plaintiffs, DOI changed its regulations to permit
lands in Alaska to be taken into trust. In the
summer of 2018, the Department of Justice
rescinded the Solicitor's Opinion on which the
DOI relied to change its regulations. DOI has
stated it will not process any new applications,
but federal representatives have stated that
pending applications would continue to be
processed.
o Status:
square4 The State commented on six applications before
the DOI embarked on the new rulemaking process--
one from the Craig Tribal Association, three from
the Central Council Tlingit and Haida Indian
Tribes of Alaska, one from the Ninilchik
Traditional Council, and one from the Native
Village of Fort Yukon. The Bureau of Indian
Affairs (BIA) has granted the Craig application,
but has not acted on the other applications. The
BIA held public meetings and consultations with
tribes throughout the State. Written comments
were due by January 25, 2019.
MR. BEAUSANG explained that for a long time, until the "Akiachak
litigation," the position of DOI in regulation was that there
was an Alaska exemption for taking lands into trust, that's not
the course that was chosen for Alaska through the Alaska Native
Claims Settlement Act (ANCSA). The course was not to follow the
reservation system that was adopted in the Lower 48 and that
seemed clear to everyone until the district court took a
different view in the "Akiachak litigation" and subsequently the
DOI then adopted that view, adopted regulations, and adopted the
Solicitor's Opinion which justified the district court's legal
reasoning that taking lands into trust was allowed in Alaska.
He detailed that the DOI rescinded the Solicitor's Opinion in
the 2018 and invited comment on the next steps for taking lands
into trust in Alaska. In January 2019 the State submitted its
comment letter that urged the DOI to revert to its position
which the State thinks is clearly the obvious result under ANCSA
that lands should not be taken into trust, there should not be
Indian country with one exception under ANCSA. The State is
waiting to see what the DOI is going to do and that will
determine the State's next steps.
4:03:03 PM
SENATOR COGHILL noted that DOI made a proposal and asked what
their expected timeline will be for comment and what their
expected decision points are.
MR. BEAUSANG replied that the comment deadline ends later in
March and there is no set deadline for DOI to make its decision.
SENATOR COGHILL opined that he finds the process troublesome
where the DOI puts a deadline on the State, but the DOI's
decision-making process has "no cap."
SENATOR KIEHL opined that ANCSA was the last gasp of the
"termination era" in federal Indian law and asked if the State's
executive branch's position is that nothing in federal Indian
law has changed applicably to Alaska since then.
MR. BEAUSANG specified that the State's position is that ANCSA
settled native claims and charted a new course to not have the
reservation system, to not have Indian country as was followed
in the Lower 48; however, the district court in "Akiachak"
determined that ANCSA did not resolve that issue and that lands
could still be taken into trust that results in Indian country.
The State's position is that taking lands into trust was settled
with ANCSA.
4:05:35 PM
SENATOR KIEHL opined that the question of the reservation system
versus whether tribes may have land they own taken into trust is
a different question.
CHAIR BIRCH asked him to explain the consequences and meaning of
"taking lands into trust."
MR. BEAUSANG explained that there are 229 native tribes in
Alaska with land holdings that are often not contiguous. Taking
lands into trust would create Indian country which would impact
the state's ability to have control over natural resource
management and environmental regulation.
SENATOR BISHOP opined that for a native tribe to convert land
into trust is a "high bar."
MR. BEAUSANG answered that there are several applications
pending with one that may have been accepted by DOI. He conceded
that he is not familiar with the process for making the land
conversion decisions.
4:07:51 PM
He addressed the "ANWR Boundary IBLA Appeal" as follows:
• Arctic National Wildlife Refuge (ANWR) Boundary Interior
Board of Land Appeals (IBLA) Appeal:
o Assistant Attorney Generals:
square4 M. Schechter,
square4 A. Brown.
o Alignment with Feds:
square4 Not aligned.
o Brief description:
square4 BLM denied the State's request for conveyance of
20,000 acres, based on dispute over western
boundary of ANWR. The State also objected to a
survey plat of the area directly south of the
area requested for conveyance.
o Status:
square4 IBLA denied BLM's motion to dismiss and has
consolidated the State's two appeals. Briefing
has been completed and the case is now pending
with the IBLA, which has a significant case
backlog and is unlikely to issue a decision
before late 2019 at the earliest.
MR. BEAUSANG said ANWR's northwestern boundary has been a
longstanding dispute between Alaska and the federal government.
The boundary in question is the western bank of the Canning
River, a position that the state agrees with. BLM's view is that
the river moved, and that the boundary line runs through many
miles of open tundra. The land in question is 20,000 acres, land
that has the potential for oil and gas development and staging.
The case has been briefed before the IBLA, but the board has a
track record of not issuing prompt decisions.
CHAIR BIRCH noted that the Senate passed a resolution earlier in
the day encouraging an ANWR lease sale. He asked if the
litigation is tied to the ANWR lease sale.
MR. BEAUSANG answered that he does believe there is a
relationship. He opined that however the litigation is resolved
the outcome will not impact the lease sale.
4:10:44 PM
He addressed the "ANWR Section 1002" matter as follow:
• ANWR Section 1002:
o Assistant Attorney General M. Schechter.
o Alignment with Feds:
square4 Aligned.
o Brief description:
square4 The Tax Cuts and Jobs Act of 2017, Pub. L. 115-
97, opened the ANWR 1002 area to oil and gas
exploration and leasing.
o Status:
square4 The Draft EIS is out for public comment. State
agencies are to submit comments on the Draft EIS
to the state Office of Project Management and
Permitting (OPMP) by January 24. OPMP will submit
the State's comment letter to BLM by Monday, Feb.
11 on behalf of the State.
He explained that "Section 1002" was something talked about in
the Senate resolution. Section 1002 is the area of ANWR that is
open for leasing out of the Tax Cuts and Jobs Act of 2017. The
Draft EIS is necessary before leases can go forward. Under the
Act, the federal government is required to have the two lease
sales within ten years and 50 percent of the revenues will go to
the state of Alaska.
CHAIR BIRCH specified that the deadline for public comment is
9:59 p.m. on Wednesday, March 13.
4:12:19 PM
EMMA POKON, Assistant Attorney General, Environmental Section,
Alaska Department of Law, Juneau, Alaska, said the three cases
she will address applies to nationally applicable Environmental
Protection Agency (EPA) regulations, noting the rules applying
to Alaska are being reevaluated due to prompting from a
presidential executive order. Alignment with the federal
government is dependent on the outcome of the rulemakings.
She addressed the "2017 Regional Haze State Implementation Plan
Rule" as follows:
• 2017 Regional Haze State Implementation Plan Rule:
o State v. EPA; Texas v. EPA (D.C. Dir., 17-1074).
o Assistant Attorney General S. Mulder.
o Alignment with Feds:
square4 Uncertain.
o Brief description:
square4 The State, along with North Dakota, Texas, and
Arkansas, challenged the 2017 Regional Haze State
Implementation Plan Rule, which imposed
quantification requirements on international air
emission contributions to regional haze affecting
national parks and wilderness areas. The State is
concerned about having international
contributions to haze, that are beyond the
State's control, count against Alaska and other
states. The State also objects to the EPA
shifting its modeling responsibilities and
modeling costs to Alaska.
o Status:
square4 At the appellate court level. Briefing is
currently on hold, while EPA revisits aspects of
the rule and engages in a new rulemaking process.
She specified that the 2017 rule was a requirement change in how
visibility is improved around Class I areas. Alaska has four
Class I areas, three are in remote islands and the fourth is
Denali National Park. Regional haze sources can be from natural
and human sources; for example, the 2012 Consent Decree between
Golden Valley Electric Association (GVEA) and the federal
government required pollution controls to be put on GVEA's Healy
power plant or to shut down Healy Unit 1 by 2024 due to concerns
over contributions to regional haze close to Denali Nation Park.
Alaska also has concerns over haze contributions from "Arctic
haze" that originates from smelter plants in Siberia and dust
storms from the Mongolia and China deserts. The EPA
traditionally did not expect Alaska to address "Arctic haze,"
but the 2017 rule caused the EPA to require Alaska to use a
scientifically valid methodology with data to prove and quantify
the "Arctic haze" contribution in order for the state to not
reduce haze sources within the state. The State thinks that
international modeling of air currents is an EPA responsibility
under the statute, so the state challenged the 2017 rule. The
briefing on the case is on hold due to a revaluation of the 2017
rule by the EPA. The State expects additional guidance from the
EPA by spring 2019, including a modeling platform and a revised
rule.
4:16:33 PM
MS. POKON addressed the "Clean Power Plan" as follows:
• Clean Power Plan:
o 40 C.F.R. 60.5700-.5820.
o Assistant Attorney General S. Mulder.
o Alignment with Feds:
square4 Uncertain.
o Brief description:
square4 The Clean Power Plan establishes mandatory
"goals" for reducing carbon emissions from
certain coal and natural gas fired power plants.
The EPA excluded Alaska and Hawaii from the final
rule, but the EPA indicated that they would
likely include Alaska in the future after
accruing more evidence.
o Status:
square4 Other states sued challenging the rule. President
Trump signed an executive order calling on the
EPA to review the Clean Power Plan and end the
moratorium on coal mining on federal lands. The
EPA proposed to repeal the Clean Power Plan in
October 2017 and the EPA has not made a final
decision. On August 21, 2018, the EPA announced
it is proposing a new rule, the Affordable Clean
Energy rule ("ACE"), to replace the Clean Power
Plan. The comment period closed on October 30,
2018. The State is awaiting the EPA's decision on
the rulemaking.
MS. POKON detailed that the EPA based their plan on the ability
to access the "interstate interconnected transmission grid" for
reducing carbon emissions by accessing renewables and natural
gas sources rather than from coal generation. The State pointed
out that Alaska was not connected to the interstate transmission
grid but noted that Alaska has an instate transmission grid with
constraints. The EPA rule effectively assumed that Alaska would
be able to replace Healy generation with Bradley Lake
hydropower; however, challenges exist with transmission and
reliability. The EPA ultimately exempted Alaska from the rule,
but the agency indicated that the issue may be revisited.
Several states challenged the rule in court, but the State did
not join in the litigation because Alaska was not involved in
the final rule. The State is watching the case because the EPA
said they might come back and the rule exhibits a broader
approach by the agency regarding the Clean Air Act where winners
and losers are chosen within the industry, a dramatic departure
in how the agency exercises its authority.
SENATOR COGHILL noted that he had read briefs that showed
constitutional questions on the EPA's "Clean Power Plan" and
their new method of management rather than addressing air
quality issues.
MS. POKON explained that the case is being held in abeyance
pending the outcome of a new rulemaking. The EPA has proposed a
new rule called, "The Affordable Clean Energy Rule." The
proposed rule takes a more traditional approach in using current
power generation more efficiently, including coal plants. The
comment period on the proposed plan closed in October 2018 and
the State is waiting to see what comes out as a final rule.
4:19:32 PM
She addressed the "Waters of the U.S. Rule" as follows:
• Waters of the U.S. (WOTUS) Rule:
o North Dakota v. EPA:
square4 North Dakota District Court;
square4 3:15-cv-00059.
o Assistant Attorney General E. Pokon.
o Alignment with Feds:
square4 Uncertain.
o Brief description:
square4 State joined a coalition of 12 states challenging
the 2015 "waters of the U.S." rule. Among other
things, the 2015 rule expands what falls under
federal jurisdiction by automatically sweeping up
"adjacent" or "neighboring" waters and wetlands
within certain geographical limits to downstream
waters already covered by federal law.
o Status:
square4 The district court action is currently proceeding
in North Dakota Federal District Court. The WOTUS
rule has been stayed by the court as to the
states that are a party to this case, including
Alaska. Summary judgment briefing is complete.
The federal government is no longer defending the
merits of the 2015 rule, though intervening
environmental groups are. Oral argument has not
been scheduled.
On August 16, 2018, a federal judge in South
Carolina enjoined the Trump administration's
order suspending the rule; that court decision
resulted in the WOTUS rule going into effect for
26 states but does not affect the North Dakota
court's stay.
Meanwhile the federal rulemaking process proceeds
to withdraw or replace the rule. EPA and the U.S.
Army Corps of Engineers released a prepublication
version of a revised rule in December 2018. A 60-
day public comment period will run from the date
the formal notice is published in the federal
register.
MS. POKON explained that the Clean Water Act applies its
regulatory programs to navigable waters and the statute defines
"navigable waters" as, "Waters of the United States including
the territorial seas." The "navigable waters" definition is
notoriously ambiguous with a long history of the EPA and the
U.S. Army Corps of Engineers defining the term and issuing
various regulations for proving further guidance. The rule is
important for Alaska because it determines where a project is
subject to federal or state permitting in terms of impacting
water. The rule reflected an even broader approach than what the
EPA was taking historically; for example, the federal government
could assert its jurisdiction over an isolated water body after
a single rainstorm or if a fixed setback in within a certain
number of feet. The summary judgement briefing has been
completed in the lawsuit and the State is waiting for an oral
argument date; however, the situation is peculiar because the
environmental interveners are defending the case, not the
federal government.
4:21:56 PM
CHAIR BIRCH noted that in January several legislators including
himself, Senator Giessel, and Senator Coghill signed a letter to
Attorney General Clarkson questioning the EPA's authority to
force the state of Alaska to adopt a process for designating
"Tier 3 Waters" which is deemed to be a restrictive designation
that gave rise to concerns about what is actually in the state's
best interest. He asked if there has been an assessment of the
"Tier 3" designation.
MS. POKON explained that the Tier 3 Waters program is another
Clean Water Act issue. Another assistant attorney general is
actively looking at the Tier 3 designation. There is pending
legislation that will clarify what the state of Alaska's process
would or would not be and the pending result will dictate where
the department proceeds.
SENATOR COGHILL remarked that the designation is, "basically
anything that is wet."
4:23:31 PM
MR. BEAUSANG said he will address the "fish and game" matter,
starting with the "NPS and USFWS Rules on Management of Fish and
Game" as follows:
• NPS and USFWS Rules on Management of Fish and Game:
o State v. Zinke:
square4 3:17-cv-00013.
o Assistant Attorney Generals:
square4 C. Brooking,
square4 J. Alloway.
o Alignment with Feds:
square4 Not aligned.
o Brief description:
square4 The State is challenging regulations adopted by
the National Park Service (NPS) affecting hunting
on preserve lands throughout Alaska and
regulations adopted by the U.S. Fish and Wildlife
Service (USFWS) restricting hunting on the Kenai
National Wildlife Refuge (NWR). Three cases were
filed and consolidated. The NPS regulations
preempted state management of wildlife,
prohibited several means of take for predators,
and changed public participation procedures for
hunting and fishing closures. The USFWS
regulations prohibit certain activities within
the Kenai NWR and the State is objecting to the
prohibition on taking brown bears at black bear
baiting stations, a practice that is allowed
under state regulations.
o Status:
square4 In July 2017, NPS and USFWS were directed by the
Acting Assistant Secretary for Fish and Wildlife
and Parks to initiate rulemaking procedures to
reconsider their rules. In June 2018, NPS
published a proposed rule that would reverse much
of the 2015 rule challenged in the litigation,
and the comment period closed October 5, 2018.
USFWS has not published a proposed new rule. The
litigation has been stayed for several months
pending possible rulemaking that might moot
portions of the lawsuit. The case is stayed for
30 days as a result of the federal government
shutdown. A status report was scheduled to be
filed on February 6, 2019.
MR. BEAUSANG summarized that the federal government was trying
to, under the Alaska National Interest Lands Conservation Act
(ANILCA), take over primary game management which is not what
ANILCA is about at all. The new federal administration seems to
be agreeing with the State's argument because they have been
backtracking quite a bit. The litigation is on hold, the NPS has
proposed a new rule which reverses their previous proposal and
the State is waiting for the USFWS to take a similar approach
with a new rule as well by taking back the federal overreach
adopted by the prior administration.
4:25:23 PM
He addressed "Congressional Review Act Resolution on USFWS
Rules" as follows:
• Congressional Review Act Resolution on USFWS Rules:
o Center for Biological Diversity v. Zinke:
square4 3:17-cv-00091.
o Assistant Attorney Generals:
square4 C. Brooking,
square4 J. Alloway.
o Alignment with Feds:
square4 Generally aligned.
o Brief description:
square4 The Center for Biological Diversity filed a
lawsuit to challenge Pub. L. 115-20 which was
adopted under the rules established in the
Congressional Review Act (CRA). Pub. L. 115-20
revoked a rule adopted by the USFWS that would
have restricted hunting and affected refuge
closure procedures on all refuges throughout
Alaska. The State and other groups intervened on
behalf of the federal defendants. Because the
plaintiffs are challenging the constitutionality
of the CRA, this case could impact prior actions
taken by Congress and the President under the
CRA.
o Status:
square4 The district court dismissed the litigation in
June 2018. In August 2018, plaintiff appealed to
the Ninth Circuit. Appellant's opening brief was
filed. Briefing by federal defendants and
intervenors has been extended as a result of the
federal government shutdown. Oral argument has
not yet been scheduled.
SENATOR KAWASAKI asked why the State filed as an intervener
versus filing an amicus brief.
MR. BEAUSANG replied that he was not privy to the decision but
could provide some guesses. He explained that case disruption or
doing something that is not in the interest of the side that the
State is intervening on would not be an issue. The State has a
very important point to make that probably would not have been
made by the federal government and that is that Alaska is the
primary manager of game in the state and the federal government
has not always expressed it as clearly and plainly as the State
thinks it should. The State wanted to be a party and to make
sure that the court was aware that Alaska has a stake in the
case as the primary manager of game where the state's rights are
being impacted substantively in addition to the federal
government defending its statute. The decision probably was that
it is much better to be a party to the case with the previously
noted interest as opposed to just expressing a view through an
amicus brief.
4:28:42 PM
He addressed the "Salmon Fishery Management Plan" as follows:
• Salmon Fishery Management Plan:
o United Cook Inlet Drift Association v. National Marine
Fisheries Service:
square4 Alaska intervened in support of defendants;
square4 3:13-cv-0104.
o Assistant Attorney General B. Meyen.
o Alignment with Feds:
square4 Aligned.
o Brief description:
square4 United Cook Inlet Drift Association (UCIDA)
challenged Amendment 12 to the Salmon Fishery
Management Plan in Alaska that ensured Alaska
retained full authority over salmon management in
three historical areas beyond the three-mile
limit, as it has since statehood.
o Status:
square4 The court of appeals found in favor of the
plaintiffs, reversing the district court's
decision. The U.S. Supreme Court denied the
State's request for review of the Ninth Circuit's
decision. The district court has retained
jurisdiction to oversee adoption of a new plan,
and there continues to be litigation over
attorneys' fees. The North Pacific Fishery
Management Council continues to work through the
issues and will likely take a while for adoption
of any final management measures.
MR. BEAUSANG summarized that the State was on the side of the
federal government. The case was brought up by commercial
fisherman who were unhappy that the fishery management plan for
salmon fisheries in Alaska did not include the federal waters of
Cook Inlet. The fisheries within federal waters of the Cook
Inlet have always been managed exclusively by the state since
statehood. The commercial fishermen in the case believed that
the fisheries should be managed by the federal government under
the Magnuson-Stevens Act, even though that had never been done.
The Ninth Circuit Court's decision required a new fishery
management plan include Cook Inlet as well as two other
historical fisheries near the Copper River and False Pass,
fisheries that have always been managed by the state. The North
Pacific Fishery Management Council decided to proceed with Cook
Inlet first, a committee was formed that included the plaintiffs
in the case as well as other stakeholders to make
recommendations to the council. A draft plan by the council is
not expected for a year or more.
4:31:19 PM
SENATOR REINBOLD remarked that the action goes against a lot of
the normal bane a lot of Alaskans have for federal control of
state resources. She asked why the commercial fishermen would
want federal control.
MR. BEAUSANG presumed that the fishermen believed that the Board
of Fisheries was not managing the resource as it would be
managed under the Magnuson-Stevens Act.
He addressed the "Critical Habitat" case as follows:
• Critical Habitat:
o Alabama v. National Marine Fisheries Service:
square4 Alabama District Court;
square4 1:16-CV-00593.
o Assistant Attorney General B. Meyen.
o Alignment with Feds:
square4 Uncertain.
o Brief description:
square4 The State joined 17 other states to challenge two
new rules regarding the designation of critical
habitat. The new rules greatly expand the types
of areas that can be designated, without much, if
any, connection to the presence of the protected
species. The Attorney General also joined a
letter with several other attorneys general
asking the new federal administration to review
and withdraw these rules.
o Status:
square4 On March 14, 2018, settlement was reached whereby
plaintiff states dismissed the case without
prejudice and the federal government agreed to
submit revised rules. Revised rules have now been
proposed, and the comment period closed in
December. We are now awaiting a decision on the
proposed rule.
He detailed that the State filed the case with 17 other states
challenging rules under the Endangered Species Act that expanded
the ability of the National Marine Fisheries Service (NMFS) to
designate critical habitat even if a species did not live in a
specified area and the land in the specified area did not
possess the features that would enable the species to live.
Alaska has been down the road before regarding endangered
species with the federal government where huge areas were
designated as critical habitat. In 2018 a settlement was reached
where the federal government agreed to submit revised rules, the
comment period has closed, and the State is waiting for the
rules to be finalized.
4:34:05 PM
MR. BEAUSANG addressed the "Comprehensive Environmental
Response, Compensation, and Liability Act Hard Rock Mining" as
follows:
• Comprehensive Environmental Response, Compensation, and
Liability Act (CERCLA) Hard Rock Mining:
o Idaho Conservation League v. Pruitt:
square4 D.C. Circuit Court;
square4 18-1141.
o Assistant Attorney General A. Brown.
o Alignment with Feds:
square4 Aligned.
o Brief description:
square4 The State intervened with 13 other states in a
lawsuit concerning the EPA decision not to impose
a federal requirement for financial assurances
under the CERCLA on hard rock mines. The EPA
recognized that states, such as Alaska, have
robust financial bonding and regulatory
requirements in place to protect the environment,
making a federal requirement unnecessary.
Environmental groups sued the EPA, asserting that
it must adopt regulations imposing financial
assurances on hard rock mines.
o Status:
square4 The State's intervention was accepted at the
appellate court level. Briefing was completed in
December 2018. Oral argument has not yet been
scheduled.
He summarized that the EPA was compelled through litigation to
adopt rules for financial responsibility for hazardous
substances through CERCLA. Hard rock mining was the first
industry class chosen to adopt the new rules and states like
Alaska were concerned that the rules would be duplicative,
burdensome, and "one sized" that would preempt unique and
adaptive state rules that have been working successfully for
some time. In December 2017 the EPA withdrew its proposed rule
and was subsequently sued, Alaska and 13 other states intervened
to defend the EPA's decision.
4:35:48 PM
MR. BEAUSANG addressed the "Reversal of Ban on Offshore
Development" case as follows:
• Reversal of Ban on Offshore Development:
o League of Conservation Voters v. Trump:
square4 3:17-cv-00101.
o Assistant Attorney General J. Douglas.
o Alignment with Feds:
square4 Aligned.
o Brief description:
square4 Before leaving office, former President Obama
issued an order pursuant to the 1953 Outer
Continental Shelf Lands Act indefinitely banning
all leases in certain off-shore areas, including
large portions of the Chukchi and Beaufort Seas.
President Trump issued an executive order
rescinding the ban, and environmental groups have
challenged the plan. The Bureau of Ocean Energy
Management (BOEM) is gathering comments on a new
proposed five-year National Offshore Oil and Gas
Leasing Program, for years 2019-2024. The State
intervened in a lawsuit to support and defend the
President's executive order.
o Status:
square4 At the district court level. The plaintiffs filed
a motion for summary judgment on June 8, 2018,
and the State filed its own motion for summary
judgment and an opposition to plaintiff's motion.
Briefing was completed, and oral argument was
held on November 9, 2018. The State is awaiting
the court's decision.
He summarized that the case occurred on the twilight of the
Obama Administration where President Obama issued an executive
order withdrawing large portions of the Chukchi and Beaufort
seas from oil and gas leasing; shortly after, President Trump
issued an executive order reversing President Obama's decision.
The League of Conservation Voters sued and argued that under the
Outer Continental Shelf Lands Act when a president acts to
withdraw the areas from leasing, the decision can only be
reversed by an act of Congress. The Outer Continental Shelf
Lands Act allows land withdrawals from leasing, "from time to
time" and the State believes the language in the Outer
Continental Shelf Lands Act allows for decisions to be
revisited.
CHAIR BIRCH asked if the argument on equity with the continental
shelf leasing in the Gulf of Mexico "holds water."
MR. BEAUSANG specified that the case defends President Trump's
reversal decision, but the argument for equal footing with other
states might have be made if the situation was still under the
"Obama ban."
4:38:03 PM
SENATOR KIEHL asked him to confirm that the that the legal
argument for the language, "from time to time" means
reinstatement can occur even though it does specifically not say
that.
MR. BEAUSANG answered that the language, "from time to time," is
used in other federal statutes and other courts have determined
that what that means is that it can be revisited. In the State's
view it's unusual to have a situation whereby presidential
proclamation a decision can never be reversed by a subsequent
president and that Congress would give one president the
authority to make a decision that can only be reversed by an act
of Congress. The State's argument is "from time to time" means
that the decision can be revisited by a subsequent president can
be revisited.
SENATOR COGHILL asked him to address the Revised Statute (R.S.)
2477 access issues with the federal government on right-of-ways.
MR. BEAUSANG answered that the Department of Law has a robust
program on asserting the state's right to R.S. 2477 right-of-
ways. He noted that the department is currently litigating two
cases. He conceded that it would be nice if the State did not
have to fight the federal government on the right-of-way issues.
4:41:56 PM
SENATOR COGHILL commented on the noted R.S. 2477 right-of-way
cases and said his hope is the state can address the issue with
the federal government on whole areas of access via setting a
precedent.
MR. BEAUSANG concurred with Senator Coghill.
SENATOR GIESSEL thanked the Department of Law for their
overview, noting that the Senate Resources Committee established
the tradition of having the Department of Law update the
committee on cases four years ago. She remarked that the update
makes her proud that the department is following issues on
behalf of Alaska's rights.
CHAIR BIRCH said he echoed Senator Giessel's comments and
thanked the department for their presentation and the work they
do to protect Alaskans' interests. He added that he is amazed by
the depth and breadth of the department's engagement.
4:44:58 PM
There being no further business to come before the committee,
Chair Birch adjourned the Senate Resources Standing Committee
meeting at 4:44 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| Dept of Law List of Federal Issues & Conflicts 1.21.19.pdf |
SRES 3/11/2019 3:30:00 PM |