Legislature(2023 - 2024)BUTROVICH 205
02/17/2023 03:30 PM Senate RESOURCES
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| Audio | Topic |
|---|---|
| Start | |
| SJR7 | |
| Update: Statehood Defense Litigation | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | SJR 7 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| + | TELECONFERENCED | ||
ALASKA STATE LEGISLATURE
SENATE RESOURCES STANDING COMMITTEE
February 17, 2023
3:30 p.m.
MEMBERS PRESENT
Senator Click Bishop, Co-Chair
Senator Cathy Giessel, Co-Chair
Senator James Kaufman
Senator Forrest Dunbar
Senator Matt Claman
MEMBERS ABSENT
Senator Bill Wielechowski, Vice Chair
Senator Scott Kawasaki
COMMITTEE CALENDAR
SENATE JOINT RESOLUTION NO. 7
Supporting oil and gas leasing and development within the
National Petroleum Reserve in Alaska; and urging President Biden
and the United States Department of the Interior to approve the
Willow Master Development Plan.
- HEARD & HELD
STATEHOOD DEFENSE LITIGATION
- HEARD
PREVIOUS COMMITTEE ACTION
BILL: SJR 7
SHORT TITLE: NAT'L PETROLEUM RESERVE IN ALASKA
SPONSOR(s): RESOURCES
02/10/23 (S) READ THE FIRST TIME - REFERRALS
02/10/23 (S) RES
02/15/23 (S) RES WAIVED PUBLIC HEARING NOTICE,RULE
23
02/17/23 (S) RES AT 3:30 PM BUTROVICH 205
WITNESS REGISTER
JULIA O'CONNOR, Staff
Senator Giessel
Alaska State Legislature
Juneau, Alaska.
POSITION STATEMENT: Introduced SJR 7 on behalf of the committee.
REPRESENTATIVE JOSIAH PATKOTAK, District 40
Alaska State Legislature
Juneau, Alaska.
POSITION STATEMENT: Provided supporting testimony for SJR 7 as
sponsor of the House companion resolution.
AGREUK HARCHARIK, President
Voice of the Arctic
Anchorage, Alaska
POSITION STATEMENT: Provided invited testimony in support of SJR
7.
KARA MORIARTY, President and CEO
Alaska Oil and Gas Association (AOGA)
Anchorage, Alaska
POSITION STATEMENT: Testified in support of SJR 7.
DR. MICHAEL TOBIN, MD, Board Member
350Juneau - Climate Action for Alaska
Juneau, Alaska
POSITION STATEMENT: Testified in opposition to SJR 7.
ELAINE SCHROEDER, Co-Chair
350Juneau - Climate Action for Alaska
Juneau, Alaska
POSITION STATEMENT: Testified in opposition to SJR 7.
DOUG WOODBY, Co-Chair
350Juneau - Climate Action for Alaska
Juneau, Alaska
POSITION STATEMENT: Testified in opposition to SJR 7.
CORI MILLS, Deputy Attorney General
Civil Division
Department of Law
Juneau, Alaska
POSITION STATEMENT: Participated in the presentation on
statehood defense litigation.
RON OPSAHL, Assistant Attorney General
Natural Resources Section
Civil Division
Department of Law
Anchorage, Alaska.
POSITION STATEMENT: Participated in the presentation on
statehood defense litigation.
JESSIE ALLOWAY, Solicitor General
Statewide Section Supervisor
Opinions, Appeals, and Ethics Section
Civil Division
Department of Law
Anchorage, Alaska
POSITION STATEMENT: Answered questions during the presentation
on statehood defense litigation.
THAD ATKINS, Assistant Attorney General
Natural Resources Section
Civil Division
Department of Law
Anchorage, Alaska
POSITION STATEMENT: Participated in the overview of litigation
related to statehood defense.
ACTION NARRATIVE
3:30:04 PM
CO-CHAIR CATHY GIESSEL called the Senate Resources Standing
Committee meeting to order at 3:30 p.m. Present at the call to
order were Senators Dunbar, Claman, Kaufman, Co-Chair Bishop,
and Co-Chair Giessel.
SJR 7-NAT'L PETROLEUM RESERVE IN ALASKA
3:30:59 PM
CO-CHAIR GIESSEL announced the consideration of SENATE JOINT
RESOLUTION NO. 7 Supporting oil and gas leasing and development
within the National Petroleum Reserve in Alaska; and urging
President Biden and the United States Department of the Interior
to approve the Willow Master Development Plan.
She directed attention to the sponsor statement in member's bill
packets and highlighted the fourth paragraph. It read:
Revenue from the Willow project will produce positive
results for the residents of the region for
generations. This will come from the subsequent
family-supporting jobs, expanded healthcare and
education opportunities and overall prosperity. As
happened over the past 40 years or more, this project
will result in positive health and well-being impacts
for Alaskans in every corner of our state.
CO-CHAIR GIESSEL relayed that the foregoing statement was based
on the substantive data from the Journal of American Medical
Association Retrospective Study on Life Expectancy in the state
of Alaska over the years when the Trans Alaska Pipeline System
(TAPS) came online, Red Dog Mine started production, and the
Magnuson Stevens Act passed.
3:32:12 PM
JULIA O'CONNOR, Staff, Senator Cathy Giessel, Alaska State
Legislature, Juneau, Alaska, introduced SJR 7 on behalf of the
committee with the following statement:
• The National Petroleum Reserve in Alaska (NPR-A) was
established in 1923 by the federal government to
provide oil for the United States Navy.
• The 23.5 million acres of NPR-A falls entirely within
the North Slope Borough.
• The NPR-A has become a critical source of oil and gas
production in Alaska, with great potential for future
development.
• The Willow Project, located in the Bear Tooth Unit of
the NPR-A, is one of the largest oil development
prospects in Alaska. The project would tap into
reserves of an estimated 600 million barrels of oil
and produce 180,000 barrels per day at peak
production. If approved, the project could generate
billions of dollars in revenue and create thousands of
jobs.
• The Willow Project has support from communities on the
North Slope, Alaska Native leaders, labor unions, and
stakeholders. In addition, Alaska's entire United
States Congressional delegation stands together in
support of the project.
• The NPR-A's 2020 Integrated Activity Plan was
developed in partnership with local communities and
tribes. It included provisions to ensure responsible
development and mitigation of impacts on the
environment and cultural resources.
• The Department of the Interior's recent reversal to
the 2013 plan, which removes 7 million acres from
potential oil and gas development, ignores the needs
and input of local communities and violates Executive
Order 13175.
• Safe and responsible oil and gas development has been
demonstrated by over 50 years of activity on the North
Slope without adverse effects on the environment or
wildlife populations.
• Senate Joint Resolution 7 urges the Department of the
Interior to support the responsible development of
resources in the National Petroleum Reserve in Alaska
and issue a positive final record of decision for the
Willow Project.
3:34:22 PM
CO-CHAIR GIESSEL found no questions and moved to invited
testimony.
3:34:49 PM
REPRESENTATIVE JOSIAH PATKOTAK, District 40, Alaska State
Legislature, Juneau, Alaska, sponsor of the House companion
resolution for SJR 7, confirmed that oil development had
generational impact on the people living on the North Slope. He
conveyed that his grandfather was born in 1932 just outside of
Kaktovik, which is now known as ANWR, the Alaska National
Wildlife Refuge. His grandmother, who was born in 1920 on the
delta of the Prudhoe Bay area, told stories of getting crude oil
on her boots when she played in the mud. Her grandfather
migrated from Noatak to Colville to start whaling.
Representative Patkotak said his family's history in this area
is why he's compelled to speak to development in this region.
REPRESENTATIVE PATKOTAK reviewed the history of the NPRA
beginning in 1923 when it was established by President Warren
Harding as a source of oil for commercial development. In 2017,
US Geological Survey (USGS) research estimated the area had 8.7
billion barrels of recoverable oil. In 2020, the Bureau of Land
Management (BLM) issued a record of decision for the Willow
Project Master Plan and in 2021 the Ninth Circuit issued an
injunction. As of February 1, 2023, the final environmental
impact statement (EIS) with the preferred alternative E was
issued. This started the 30-day period for the record of
decision.
REPRESENTATIVE PATKOTAK conveyed that the companion resolution
for SJR 7 was amended to speak to the role that the Willow
Project could play in furthering renewable energy where
possible. He highlighted that the residents of Utqiagvik/Barrow
were able to access natural gas starting in the '60s and the
residents of Nuiqsut began using natural gas in 2008 from the
Alpine facility. This has saved money and reduced dependence on
diesel for these residents. He said his priority is to help more
people in the region reduce their reliance on diesel for home
heating and power generation.
CO-CHAIR GIESSEL asked him to illuminate the fiscal impact of
development in the NPRA for the North Slope Borough.
3:39:43 PM
REPRESENTATIVE PATKOTAK replied that the property tax assessment
over the 30-year estimated life of the Willow project is
estimated to have a local impact of $1.2 billion. Over that
timeframe the share of state and federal royalty that goes into
the NPRA grant mitigation fund is expected to be about $2.3
billion. The aggregated total is $3.5 billion. Importantly, this
allows affected municipalities, city governments, and tribal
entities east of the Colville River to access these grant funds
and better the lives of residents.
CO-CHAIR GIESSEL relayed that she worked for the North Slope
School District for nine years, so she knows first-hand the
positive impact the Willow Project will have on the communities
in the area.
3:43:45 PM
SENATOR CLAMAN asked if he was requesting this committee amend
SJR 7 to match the companion House resolution that was amended
in the Resource Committee.
CO-CHAIR GIESSEL said it was not necessary for the committee to
address an amendment at this time.
REPRESENTATIVE PATKOTAK agreed that action was not necessary at
this time.
3:44:53 PM
NAGREUK HARCHARIK, President, Voice of the Arctic Inupiaq,
Anchorage, Alaska, provided invited testimony in support of SJR
7. He described the nonprofit organization and relayed that the
board asked him to convey its unanimous support of the Willow
Project and SJR 7. He said it represents a positive model of
cultural, economic, and ecological interdependence. He
highlighted the benefits to communities from projects like
Willow, including food security through research and monitoring
of marine mammals by state and federal agencies as well as
direct and indirect jobs. Projects like Willow help the people
in the area use modern technology and equipment to continue
their customary and cultural traditions.
MR. HARCHARIK stated that the Voice of the Arctic Inupiaq is
asking the Biden administration to fulfil its promise and listen
to the indigenous voice. Throughout the North Slope, the people
value and believe in unity in the family and among and between
communities. Legislative support of SJR 7 will send a clear
message of unity to the Biden administration.
3:49:22 PM
CO-CHAIR GIESSEL opened public testimony on SJR 7.
3:49:49 PM
KARA MORIARTY, President and CEO, Alaska Oil and Gas Association
(AOGA), Anchorage, Alaska, stated that SJR 7 represents a
tremendous opportunity to meet the energy needs of Americans
while also benefitting the people of the North Slope. The Willow
Project will generate an estimated 2,500 union jobs and
significantly boost throughput in TAPS by about 180,000
barrels/day at peak production. She noted that permitting began
70 months ago for three well sites. On behalf of AOGA, she urged
the committee to support the resolution.
3:51:15 PM
DR. MICHAEL TOBIN, MD, Board Member, 350Juneau - Climate Action
for Alaska, Juneau, Alaska, stated that he was speaking in
opposition to SJR 7. He noted the International Energy Agency
statement that no new fossil fuel infrastructure can be
developed if there is to be a chance of having a stable climate.
Tremendous technological progress has been made in in the area
of renewable energy since the oil fields in Prudhoe Bay were
discovered and developed. He emphasized that Alaska must go in
that direction for the future. A 30-year commitment to fossil-
based energy is taking Alaska in the wrong direction. He urged
the committee to vote against SJR 7.
3:52:26 PM
ELAINE SCHROEDER, Co-Chair, 350Juneau Climate - Action for
Alaska, Juneau, Alaska, stated opposition to SJR 7. She said
climate scientists worldwide have called fossil fuel projects
like Willow climate bombs. This is because the Arctic is warming
at four times faster than the rest of the planet. This increases
the risk worldwide of sea level rise and catastrophic flooding.
She noted that UN Secretary Antonio Guterres sent a special
message to fossil fuel producers during his annual report to set
a credible course for net zero emissions. When asked, she
restated opposition to SJR 7.
3:53:55 PM
DOUG WOODBY, Co-Chair, 350Juneau - Climate Action for Alaska,
Juneau, Alaska, advised that he submitted written testimony. He
said he opposes SJR 7 even though another oil boom is tempting
because of the economic opportunities for communities and jobs.
He relayed his first-hand experience of paying for heating oil
when he lived in the areas around Norton Sound and Kotzebue
Sound. Nevertheless, he supports a sustainable energy plan that
is not dependent on fossil fuels. That's what the state needs
and it will take leadership to get there.
3:55:21 PM
CO-CHAIR GIESSEL closed public testimony on SJR 7.
She found no questions or comments and solicited a motion.
3:55:34 PM
SENATOR BISHOP moved to report SJR 7, work order 33-LS0454\A,
from committee with individual recommendations and no fiscal
note(s).
3:55:55 PM
CO-CHAIR GIESSEL stated that without objection SJR 7, is moved
from the Senate Resources Standing Committee.
[Subsequent to this bill action, SJR 7 was held in committee
awaiting a fiscal note per Sec. 24.08.035. Fiscal notes on
bills.]
3:56:03 PM
At ease
^Update: Statehood Defense Litigation
UPDATE: STATEHOOD DEFENSE LITIGATION
3:57:35 PM
CO-CHAIR GIESSEL reconvened the meeting and announced the
committee would hear an update from the Department of Law on
litigation associated with statehood defense.
She directed attention to the document in the packets dated
1/15/2023 titled, "Federal Laws and Litigation Report" that
summarizes the extensive roster of litigation the department is
currently working on.
3:58:30 PM
CORI MILLS, Deputy Attorney General, Civil Division, Department
of Law, Juneau, Alaska, stated that every year DOL puts out the
federal issues list for the legislature. The department
intervenes on matters where it aligns with the federal
government, or it files suit when it's an issue of
jurisdiction/federal overreach. She noted that the bulk of the
jurisdictional fights relate to natural resources.
She explained that the overview would highlight certain cases,
most of which are funded with statehood defense monies the
legislature has provided over the last two years. She noted that
the department uses different funding sources for litigation
depending on the matter.
4:00:13 PM
THAD ATKINS, Assistant Attorney General, Natural Resources
Section, Civil Division, Department of Law, Anchorage, Alaska,
began the statehood defense litigation update with a review of
Wild Fish Conservancy v. Rumsey, et. al. No. 2:20-cv-00417. He
spoke to the following points:
• In early 2020 the Wild Fish Conservancy sued the
United States, arguing that the Southeast Alaska
Chinook Biological Opinion related to Southern
Resident Killer Whales was flawed and that take of
their food (chinook salmon) was unlawful
• Alaska intervened to defend the Biological Opinion
• The court granted the plaintiff summary judgment,
finding that the Biological Opinion violated the ESA
and National Environmental Policy Act
• The parties have briefed remedy and the issue is
ripe for a final order from the District Court judge
4:02:23 PM
SENATOR DUNBAR asked what the practical impact will be on the
fishery if the ruling is upheld on appeal.
MR. ATKINS answered the winter and summer troll fisheries will
terminate if the recommendation is upheld.
MS. MILLS added that a new biological opinion from the National
Marine Fisheries Service (NMFS) is expected this summer. The
hope is to avoid the devastating impacts this could have if the
judge upholds the recommendation.
4:03:44 PM
SENATOR DUNBAR asked if upholding the recommendation would
actually cancel the fisheries or if they would be suspended to
give the agencies time to do what she described.
MS. MILLS said that was the focus in oral arguments. There has
been a determination of what's wrong and now the work is on the
remedy. She deferred to Mr. Atkins for further explanation.
4:05:00 PM
MR. ATKINS said he would need to confer with Assistant Attorney
General Aaron Peterson before he could provide additional
information.
SENATOR DUNBAR indicated the answer was satisfactory.
4:05:37 PM
RON OPSAHL, Assistant Attorney General, Natural Resources
Section, Civil Division, Department of Law, Anchorage, Alaska,
discussed the following cases relating to marine mammals, one
that the department supports the federal decision and two that
it opposes:
similar Defense of nonlethal incidental take of polar bears
for oil and gas activities
o Alaska Wildlife Alliance v. Haaland (U.S. Dist.
Alaska)
He explained that the incidental take regulations (ITR) are
reissued every five years to allow oil and gas activities
to continue on the North Slope. The last authorization in
August 2021 was challenged and the state intervened to
defend the regulations. The magistrate judge upheld the
regulations, and a final order is expected.
4:07:06 PM
SENATOR CLAMAN asked him to clarify what would remain in place
if the decision were upheld.
MR. OPSAHL explained that upholding the regulations maintains
the status quo regarding oil and gas operations on the North
Slope. If the regulations were struck down, oil and gas
activities on the North Slope would stop.
SENATOR CLAMAN asked how long the status quo regulations have
been in place.
4:08:41 PM
MR. OPSAHL answered that a new biological opinion and new
regulations are issued every five years. They are different
every time. The regulations allow a scope of activities that
allow the incidental harassment of polar bears. A certain number
of those ITRs can be divided among the activities on the North
Slope.
4:10:06 PM
MR. OPSAHL continued to review marine mammal litigation.
similar Challenge to negative 90-day finding regarding
State's petition to delist Arctic ringed seal
o Alaska v. National Marine Fisheries Service (U.S.
Dist. Alaska)
He explained that ringed seals were listed as threatened in
2012. Based on research after that time, ADF&C petitioned for
delisting in 2019. The petition was denied, and the state sued.
If the state wins the case, the petition will be pushed forward
in full review for the next 12 months.
4:12:36 PM
SENATOR DUNBAR asked whether the state ever supported the
listing of a species under the Endangered Species Act.
MS. MILLS said the state didn't have a lot of problems with the
Endangered Species Act until the federal government started
applying speculative modeling on healthy populations. The
modeling indicated species would be threatened in 50-100 years,
and they were listed now. The state believes the statute
requires the species to be imminently threatened, not 50-100
years from now. She deferred to ADF&G to talk about specific
recent cases and the science behind those.
CO-CHAIR GIESSEL noted that the committee could follow up with
the Alaska Department of Fish and Game (ADF&G). She clarified
that species are being listed based on the notion that they
could be threatened in 50-100 years which is even more
speculative.
4:15:13 PM
SENATOR DUNBAR asked when the federal government started the
speculative modeling, and if she was asserting that the state
was not involved in ESA litigation before then or just not in as
many lawsuits.
MS. MILLS said the first time she was aware of the new model was
when the polar bear was listed the 2008-2009 timeframe.
4:16:08 PM
MR. OPSAHL reviewed the third case of marine mammal litigation.
similar Challenge to critical habitat designations for Arctic
ringed seals and bearded seals
o Alaska v. National Marine Fisheries Service (U.S.
Dist. Alaska)
He said critical habitat is defined under the ESA as specific
areas that are essential to the recovery of the species. When
these seals were listed, the entire 324,000 square miles where
they range in Alaska was designated as critical habitat. He said
it's hard to believe all that area is indispensable. Critical
habitat designations in the Lower 48 are much more targeted. The
state is trying to get the designation reversed.
CO-CHAIR GIESSEL reminded the members that Mr. Mulligan
highlighted this case during the last meeting.
4:17:59 PM
JESSIE ALLOWAY, Solicitor General; Statewide Section Supervisor,
Opinions, Appeals, and Ethics Section, Civil Division,
Department of Law, Anchorage, Alaska, began by discussing two
cases that are meant to preserve the state's traditional
authority to manage the methods and means of hunting. She would
touch briefly on why the state believes it has that authority
then talk about the two related cases: State v. Haaland No. 22-
401 and Alaska Wildlife Alliance v. Haaland No. 3:20-cv-209-SLG.
She spoke to the following points to explain why the state has
this authority:
similar The Alaska Statehood Act transferred the authority from the
federal government to the State of Alaska to manage
wildlife, including on federal land. The state had to
develop a system through the constitution or laws to manage
and protect wildlife in the broad interest. The Sustained
Use Principle is in the constitution and the legislature
enacted appropriate statutes. The Secretary of the Interior
certified that these actions met the Statehood Act and
management authority was transferred to the state.
similar The state believes it has had the traditional authority and
ability to manage the methods and means of hunting since
that time. The federal government maintains the overarching
authority to step in if it has a conservation concern.
Through regulation in 1971, the Department of the Interior
recognized that states have the authority "to regulate the
capturing, taking, and possession of fish and resident
wildlife within the public, in-state boundaries."
similar When ANILCA passed, Congress created Conservation System
Units, but also meant to preserve certain authority for the
state. Sections 13-14 says, "Nothing within ANILCA was
meant to enlarge or diminish the State of Alaska's
authority over wildlife or to change the constitutional
provisions." The state has interpreted that to maintain the
status quo. That includes the ability to regulate the
methods and means of hunting.
similar At the end of the Obama administration, the U.S. Fish and
Wildlife Service and the National Park Service started
promulgating regulations to preempt state law over the
methods and means of hunting.
similar One rule that's being litigated applies on the Kenai
Refuge where certain state-authorized hunting methods were
banned, including the take of brown bear over bait. That
was later expanded in a statewide refuge rule to include
predator control methods the state authorizes. The
National Park Service then said it would limit those and
other methods of take in national preserves.
similar These two cases are related in that they address the
federal agencies' authority to preempt state law
similar The State filed litigation to challenge all the
regulations in 2017. Congress used the Congressional
Review Act to invalidate the statewide refuge rule. That
challenge is settled, but the state still needs to
challenge the Kenai and national preserve rules.
similar The Ninth Circuit Court of Appeals said the federal
government has plenary authority over wildlife on federal
land. This means there is no limit for when a federal
agency can preempt state law.
similar After Congress invalidated the statewide refuge rule, the
National Park Service changed the rule and recognized the
state's authority. The state intervened on their behalf
to defend the 2020 regulation that recognized the state's
authority.
similar The district court looked at the Ninth Circuit decision
and said the federal agency had plenary authority to
regulate the methods and means of hunting service. The
rule was remanded to the agency. The state appealed but
that will be held up while the Park Service promulgates
new regulations.
similar The State filed a petition for certiorari with the
Supreme Court, asking it to consider the Ninth Circuit's
conclusion on the Kenai rule. It is scheduled for
conference on March 3.
4:25:05 PM
SENATOR CLAMAN asked if this was related to the subsistence
priority dynamic in that there is a distinction between one's
method of hunting and taking, and how many one may take.
4:26:11 PM
MS. ALLOWAY said Title VIII of ANILCA has a mechanism for the
state to manage that rural subsistence priority. Unfortunately,
the Alaska Supreme Court said that rural preference violated the
Equal Protection Clause so a federal subsistence board provides
management.
To the question, she said Congress has authority under the
property clause to manage wildlife populations. The state has
its own constitutional provision, but the federal government can
overrule a state decision to kill all Brown bears, for example,
because of the interest in preserving that wildlife population.
Hunting could be closed on the refuge. The state recognizes this
but takes the position that for the federal government to
exercise that authority, it has to show a conservation concern
that the state is managing the population such that it can't
survive. The Alaska Constitution requires management on a
sustained yield so there's a little conflict between the two
provisions. If the state were to brief that National Park
Service appeal, some of those things might be addressed.
SENATOR CLAMAN asked if there was overlap between the lawsuits
about the method of taking and the fish and game resources that
are subject to the subsistence priority that the federal
government is managing.
MS. ALLOWAY replied there is some overlap between management
authorities, but not for the Kenai Refuge because that area
doesn't have a subsistence priority. There are subsistence
priorities in the national preserves.
SENATOR CLAMAN asked her to focus on where there was a
subsistence priority managed by a federal agency. He asked if
the lawsuit she described had any overlap or was managed
entirely by the federal subsistence board.
MS. ALLOWAY replied there's overlap between the management
authorities.
SENATOR CLAMAN asked her to describe the overlap. For example,
how does the state regulate a subsistence hunter when they are
hunting in a federal subsistence unit where they are authorized
to take a certain number of game?
MS. ALLOWAY suggested she respond by using the example in the
next appeal she was going to talk about.
4:30:12 PM
SENATOR DUNBAR wondered how the district court and Ninth Circuit
Court of Appeals worked around Title XIII and Title XIV of
ANILCA.
MS. ALLOWAY answered that Part A preserves the state's
authority, Part B preserves the federal government's authority
to manage the habitat to sustain the species, and Part C says
hunting can happen on these federal lands, subject to federal
and state law. She said both the district court and the Ninth
Circuit suggested that Part C granted extra authority, but she
disagrees. Her interpretation of the provision was that hunting
can occur on federal land, but it must comply with the methods
and means under state law and comply with federal law on how the
land is accessed. She said DOL will ask the US Supreme Court to
look at the congressional grants of authority in ANILCA.
4:32:16 PM
MS. ALLOWAY turned to slide 9 to discuss Case # 22-0195, State
v. Federal Subsistence Board. She spoke to the following points:
• In August 2020, the State challenged the Federal
Subsistence Board ("FSB") decision to close moose
and caribou hunting in GMU 13A and 13B for two
years to non-federally qualified hunters only.
• The State also challenged FSB's delegation of
authority to local federal land managers to open
emergency hunts and to delegate hunt
administration outside of a federal agency.
• In December 2021, the Alaska federal district
court issued a decision favorable to the FSB.
• The State appealed and oral argument was held
before the Ninth Circuit Court of Appeals in
December.
MS. ALLOWAY said the overlap she mentioned occurs when the
federal government can step in through the FSB with regulations
that are in addition to state regulations. She asked Senator
Claman if his question about overlap was answered.
4:35:35 PM
SENATOR CLAMAN suggested they continue the conversation offline.
MS. ALLOWAY agreed.
4:35:52 PM
MS. MILLS added that DOL's position is that the means and
methods is a state authority.
SENATOR CLAMAN offered his understanding of DOL's perspective
that the number of the take is a federal question, and the
method of the take is a state question, unless the federal
government can show the method would cause harm.
MS. MILLS answered yes; the overall position is that the default
is always state methods and means.
SENATOR CLAMAN assumed that an attorney for the federal
government might have a different opinion on the question.
MS. MILLS said that's true, but that power wasn't invoked in
either the Kenai Refuge case or the National Park Service case.
SENATOR CLAMAN acknowledged subsistence was a little off topic.
MS. MILLS replied that it all intertwines.
4:38:12 PM
SENATOR DUNBAR asked if it was the state's position that the
federal government could not take action on behalf of federally
qualified hunters in the circumstance that wealthier non-
federally qualified hunters consistently out competed those
subsistence hunters.
MS. MILLS clarified that the state has a subsistence hunt but it
can't impose it based on zip codes. Rather, all subsistence
hunters are in one category, with some exceptions. Without
getting into that, she said non-federally qualified hunters are
still subsistence. Federally qualified users are those
subsistence users that fit into the rural preference that the
federal government enforces, but the state cannot.
She continued that it is fact-specific based on things like
access, number of animals, and whether the hunt is staggered or
phased. The boards of game and fish make those determinations.
SENATOR DUNBAR asked if the case in question involved a remedy
for some sort of out-competing.
MS. ALLOWAY said no; the record had no evidence of that. The
federal subsistence board considered and rejected the same
proposal at the last meeting because it didn't have any basis.
The board didn't provide any new evidence but made the decision
to close those to areas to non-federally qualified subsistence
hunters.
MS. MILLS stated that Mr. Opsahl would provide an update on the
cases about navigability.
4:41:33 PM
MR. OPSAHL stated that he would start by answering some of the
questions about navigability that were raised during the
previous meeting. He said the confusion stems from the fact that
the term navigable waters is used in three contexts.
Commerce Clause: In the broadest sense, navigability is in the
Commerce Clause. It reaches waters that are navigable in fact,
that could be made navigable in fact, or waters that touch
waters that are navigable. This is where the Clean Water Act
jurisdiction comes in and this is where discharge cannot go into
wetlands that drain into navigable waters. This is where the
definition of waters of the United States (WOTUS) comes from.
Rivers and Harbors Act: A second way that navigability is used
is for transport under the Rivers and Harbors Act. Here the term
is mostly concerned with obstructions to navigability. This is
where the permitting authority resides for the US Army Corps of
Engineers for building a levy or a dock or a dam that is going
to impede the use of the navigable waters for transportation
interstate.
Equal Footing Doctrine: Navigability in the current context is
for purposes of the Equal Footing Doctrine. This is an older
concept than both the others. It comes from the law of the
English King. The crown owns tidal waters that boats use. This
was introduced in America when the original 13 colonies
inherited the rights of the crown at Independence. The only
rights that were ceded were those ceded in the Constitution. A
right that the states reserved was ownership of the beds of the
navigable waters. That right stayed with those states and every
state that comes into the union is placed on an equal footing
with those original 13 states. They receive ownership of the
submerged land under navigable waters. That comes with the right
to regulate the uses of the water above the submerged land. The
water is owned by the public for the public use. Ownership of
water is governed by water law; with a water right, comes the
right to use the water, but not own it. Nobody actually owns the
water.
MR. OPSHAL continued to explain that the Commerce Clause
navigability can change. If a river is made navigable, it can
come under the Commerce Clause regulatory authority. The same
applies to the Rivers and Harbors Act; navigable servitude looks
at present use and it can change in the future, but it doesn't
look at the past. The question is navigability today. Under the
Equal Footing Doctrine statehood rights governing navigability
look to the past to the time of statehood. It's a fixed point in
time. By operation of law, submerged lands were transferred to
the state for waters that were navigable or susceptible to
navigability at statehood. The federal government held those
rights for future states.
MR. OPSHAL said there is a lot of confusion about navigability
and the courts are never clear about the test it is applying and
when. He asked Senator Claman if the explanation answered his
question.
4:47:48 PM
SENATOR CLAMAN summarized his understanding relative to the
earlier discussions about assuming primacy of Section 404 of the
Clean Water Act. He said the point is that the state's interest
is in the submerged lands and that may or may not include the
ability to regulate the navigable waters of the US that are
above the submerged lands.
4:48:47 PM
MR. OPSAHL posed a hypothetical example to clarify the point. If
somebody put up a zip line on their property that crossed onto
the neighboring homeowner's lot, that neighboring property owner
could stop the activity. The concept is the same in submerged
lands. As the owner of the submerged lands, the state has the
obligation to manage how the water above that submerged land is
used. The Commerce Clause mixes in with right to regulate the
water and discharges into it; the federal government has the
right to regulate the things that would affect interstate
commerce.
4:50:02 PM
SENATOR CLAMAN offered a hypothetical situation where it would
be a Commerce Clause matter if the federal government wanted to
dam the Copper River because it affects commerce. The state
could assert different interests but in the end the control of
the water in that instance would fall to the federal government.
Absent a Commerce Clause assertion, the state may have more
control over how the water is managed.
MR. OPSAHL said that's what happens when the Federal Energy
Regulatory Commission (FERC) permits dams. The Commerce Clause
gives the federal government the authority to permit dams. The
state would be reasonably compensated when its submerged lands
ownership is impacted. Similarly, if the dam were on private
land, the private landowner would be reasonably compensated.
Those are examples of taking. What has not yet happened to the
extent that it's an issue, is the federal government as an
adjacent landowner trying to control impacts when it asserts
what happens on the navigable water with state-owned submerged
lands. He cited the hypothetical example of BLM saying people
cannot drive across BLM land on a boat with a large outboard. It
doesn't affect BLM lands but the agency is trying to bootstrap
into the regulation because it doesn't want the large outboard
on the state-controlled submerged lands. He said that's
happening but it's not an issue at this point. He opined that if
the state isn't happy with the way the management plays out,
it's the state's duty and obligation to change it through DNR or
state law, and prohibit uses it doesn't want.
4:54:40 PM
SENATOR CLAMAN returned his attention to Section 404 of the
Clean Water Act. He recapped that the federal government was
exercising its Section 404 authority in the 47 states that have
not assumed primacy based on a combination of WOTUS and a
Commerce Clause analysis that authorizes permitting what goes
into federal waters.
MR. OPSAHL agreed, adding that it applies to both state and
private ownership of the submerged lands.
4:56:38 PM
MR. OPSAHL directed attention to the cases related to submerged
lands on slide 11 and explained that the state selected the
cases it was challenging based on the likelihood of winning. A
reasonable person would say they're navigable. He spoke to the
following:
similar Middle Fork and North Fork of Fortymile River, Alaska
v. United States (U.S. Dist. Alaska) is in a wild and
scenic river corridor and a drainage with significant
placer mining. The importance is that the decision
will talk about state submerged lands in wild and
scenic river corridors. This area is easily accessible
and sees a lot of activity. The case is in summary
judgement.
4:59:31 PM
SENATOR CLAMAN recapped that in this instance, the state had an
interest in confirming title to the submerged land because of
the placer mining. The suit asserted the state's claim to the
submerged lands. In the course of the litigation, the federal
government disclaimed interest in the submerged lands, which
effectively acknowledges that the water is navigable. If the
state were to win on navigability on the Fortymile River, it
would give the state title to the submerged lands that have
placer deposits and the state can make those accessible to the
placer miners.
MR. OPSAHL said access to the mining claims is a driver, but the
state is also looking at how that interacts with wild and scenic
rivers. Additionally, the Fortymile connects to waters the state
already has ownership of and it drains into the Yukon River that
crosses the entire state and into Canada.
CO-CHAIR GIESSEL briefly reviewed the remaining slides and said
the discussion probably would continue at a later time. She
thanked the presenters.
MS. MILLS suggested that the information was helpful to educate
both the legislature and the public since needed explanations
sometimes are missing in the media.
5:03:23 PM
There being no further business to come before the committee,
Co-Chair Giessel adjourned the Senate Resources Standing
Committee meeting at 5:03 p.m.