Legislature(2013 - 2014)BUTROVICH 205
01/22/2013 09:00 AM Senate STATE AFFAIRS
| Audio | Topic |
|---|---|
| Start | |
| Overview: Federal Overreach - Activities of the Departments of Law and Natural Resources | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
SENATE STATE AFFAIRS STANDING COMMITTEE
January 22, 2013
9:02 a.m.
MEMBERS PRESENT
Senator Fred Dyson, Chair
Senator Cathy Giessel, Vice Chair
Senator John Coghill
Senator Bill Wielechowski
MEMBERS ABSENT
Senator Bert Stedman
OTHER LEGISLATORS PRESENT
None
COMMITTEE CALENDAR
OVERVIEW: FEDERAL OVERREACH - ACTIVITIES OF THE DEPARTMENTS OF
LAW AND NATURAL RESOURCES
- HEARD
PREVIOUS COMMITTEE ACTION
No previous action to record
WITNESS REGISTER
MICHAEL GERAGHTY, Attorney General
Department of Law,
Anchorage, Alaska
POSITION STATEMENT: Presented information on Federal Overreach
Activities.
DANIEL SULLIVAN, Commissioner
Department of Natural Resources
Anchorage, Alaska
POSITION STATEMENT: Presented information on Federal Overreach
Activities.
MIKE STEFANSKI, representing himself
Marlborough, Massachusetts
POSITION STATEMENT: Testified about a personal experience
regarding Federal overreach activities.
ACTION NARRATIVE
9:02:15 AM
CHAIR FRED DYSON called the Senate State Affairs Standing
Committee meeting to order at 9:02 a.m. Present at the call to
order were Senators Giessel, Coghill, Wielechowski, and Chair
Dyson. Senator Stedman was excused.
^OVERVIEW: FEDERAL OVERREACH - ACTIVITIES OF THE DEPARTMENTS OF
LAW AND NATURAL RESOURCES
9:02:50 AM
CHAIR DYSON stated that the purpose of the meeting was to
discuss one of the seminal issues facing Alaska - the control of
Alaska's lands. He said during the statehood debate, one of the
questions asked by Congress was how the people in the new state
of Alaska would be able to support themselves. It turned out
that most of Alaska's income would come from natural resources.
He noted that there are huge battles going on regarding
ownership of those resources.
CHAIR DYSON introduced the two people testifying before the
committee. He said Alaska's Attorney General, Michael Geraghty,
is the state's chief law enforcement officer, overseeing the
state's involvement in all civil matters and criminal
prosecutions, and leading over 550 attorneys and staff in the
Department of Law's (DOL) thirteen offices throughout the state.
MICHAEL GERAGHTY, Attorney General, Department of Law,
acknowledged the introduction.
CHAIR DYSON stated that the Commissioner of the Department of
Natural Resources (DNR), Daniel Sullivan, leads the 1,100
professionals in the department, as well as manages one of the
largest portfolios of oil, gas, renewable energy, minerals,
timber, land, and water in the world, in addition to overseeing
regulatory activities on approximately 150 million acres of
state land and 40,000 miles of coastline.
9:05:13 AM
ATTORNEY GENERAL GERAGHTY introduced his staff.
DANIEL SULLIVAN, Commissioner, Department of Natural Resources,
introduced his staff.
CHAIR DYSON cautioned the witnesses regarding the use of
acronyms. He said he hoped they would provide information about
the history of Alaska land issues, the present situation, the
scope of the problem, as well as current work being done.
9:07:16 AM
COMMISSIONER SULLIVAN introduced the topic of Federal Overreach
into Resource Development in Alaska. He said the presentation
involved a team effort by various agencies. He noted that
federal overreach is a very important topic to Alaska. It was
highlighted in the Governor's State of the State address. He
said the last four years have shown an unprecedented number of
attempts by certain agencies in the federal government to lock
up Alaska's natural resources. He stated that he would clear up
some misconceptions about the state's involvement with federal
overreach. He stressed that federal overreach is a nationwide
problem and a bi-partisan issue.
9:09:03 AM
COMMISSIONER SULLIVAN showed a map that depicts how important
federal, state, and Native land ownership issues are in
interactions with the federal government. Speaking as a former
U.S. Attorney General, he noted that states made up of
intermixed federal and state lands, such as Alaska, experience
issues of federalism frequently. He brought up the fact that
Alaska is a young state and the relationship with the federal
government is relatively new. So much of Alaska's economic
future is tied into the development of its land resources.
COMMISSIONER SULLIVAN noted that there are a number of federal
acts that form the unique legal framework for relations between
the federal government and Alaska as a sovereign state:
· The Alaska Statehood Act
· Alaska National Interest Lands Conservation Act (ANILCA)
· Alaska Native Claims Settlement Act (ANCSA)
· National Petroleum Reserve - Alaska (NPR-A) federal
statutes
· Outer continental Shelf (OCS) Lands Act
9:11:17 AM
COMISIONER SULLIVAN described three troubling trends regarding
federal decision making as it applies to Alaska: significant
overreach, lengthy delays in permitting, and lack of state
consultation and input. He described instances of federal
overreach and permitting delays, such as CD-5 and Point Thomson.
He opined that the lack of state input is the biggest problem.
He stressed that the consultation aspects of making decisions
that affect the state are important. The state continues to
emphasize to federal officials that it is the stakeholder and
has constitutional rights. He said the state has the expertise
needed on so many of the issues. He used the critical habitat
designation of the polar bear as an example of what happens when
the federal government does not consult with the state on
important issues. He shared an experience regarding the Wild
Lands initiative that proceeded without state consultation or
notice.
9:14:54 AM
COMMISSIONER SULLIVAN described actions the state has taken to
address federal overreach:
· Monitor activities
· Advocate publicly
· Build alliances
· Assume authority
· Work cooperatively
· Research legal options
COMMISSIONER SULLIVAN provided an example of the state's
monitoring of activities. In 2010 there was a discussion in
Washington, D.C. about designating ANWR as a national monument,
despite the "no more' clauses of ANILCA. He described how the
Governor was able to quickly respond with a legal opinion that
dissuaded the action.
He shared examples of public advocacy, testimonies given before
Congress, and articles to spur interest in Alaskan views on
energy development and other issues.
9:19:29 AM
COMMISSIONER SULLIVAN gave examples of how Alaska addresses
federal overreach by building alliances. He described how
alliances were built with Washington and Oregon regarding the
Steller sea lion. He related that the Governor is currently
chairman of the OCS Governors' Coalition, which facilitates
communication between the states and the federal government in
support of responsible offshore development. He discussed a
partnership with the North Slope Borough to challenge the
critical habitat designation for the polar bear. He said another
partnership is with the Office of Surface Mining to work on coal
issues.
COMMISSIONER SULLIVAN spoke of the state's work toward assuming
permitting authority. Some federal environmental statutes
include sections that allow state programs to receive approval
from federal agencies to administer their provision. One such
area is wastewater discharge permitting. Also, Governor Parnell
has introduced a bill that would allow state agencies to take
initial steps needed to assume wetland dredge and fill
permitting responsibilities from the Army Corps of Engineers.
He detailed cooperative efforts being taken between state and
federal agencies to work on big issues that affect Alaska.
COMMISSIONER SULLIVAN turned to the subject of litigation. He
listed examples of the state's supporting federal decisions
through litigation, such as defending challenges to the Chukchi
Sea and Beaufort Sea exploration plans, and defending OCS lease
sale 193 and related seismic activity. He spoke of personal
opportunities when he was Attorney General where the federal
government voiced appreciation for the state's support of a
number of federal decisions such as the Wild Species Act (WSA).
COMMISSIONER SULLIVAN recalled the respectful relationship with
the U.S. Department of Justice. He stressed that the state has
very strong relationships with most federal agencies.
9:26:56 AM
COMMISSIONER SULLIVAN gave examples of the state's opposition to
federal decisions through litigation. He noted challenges such
as the Environmental Protection Agency's "endangerment finding."
COMMISSIONER SULLIVAN questioned how to define success. He
provided a list of areas of success where success was not a
win/lose situation, some of which are simply court victories.
Examples of success include:
· Point Thomson permitting
· Polar bear critical habitat federal court ruling
· Tanana River bridge project approval
· Arctic drilling moratorium reversal
· CD-5 permitting
· Kensington Mine Supreme Court ruling
· Diesel timber sale federal court victory
· No executive branch ANWR monument designation
He spoke of the Wild Lands initiative, the TAPS shutdown, and
the Arctic moratorium as other examples of successes.
9:32:55 AM
COMMISSIONER SULLIVAN listed a number of unresolved issues:
· Shell permitting, including the Department of Interior's
current "Expedited Assessment of 2012 Arctic Operations"
· OSM response to state's position on Wishbone Hill permits
· Cook Inlet - permit delays for new companies that could
support energy production in the Inlet
· NPR - A final Environmental Impact Statement and upcoming
Record of Decision
· Jurisdictional/navigability issues for waterways
He added to the list the EPA preemption issue with regard to the
Pebble Mine, which has not requested permits from the state yet.
He went into detail about Shell permitting, describing the
process of resolution to date. He stated that all of these areas
will require further monitoring.
9:36:29 AM
SENATOR COGHILL pointed out that most dealings with the federal
government take place in EPA Region 10. He inquired about the
working relationship with Region 10.
COMMISSIONER SULLIVAN replied that the state has made an effort
to work closely with Region 10. He noted the problem comes when
there is a sense that the decision is based in Washington, D.C.
He emphasized that one of the tools of cooperation is to form
good relationships. He noted that DEC Commissioner Larry Hartig
has a good relationship with Region 10. He used the CD-5
decision as an example of a decision that probably came from
Washington, D.C.
SENATOR COGHILL commented that he wanted people to understand
that many issues get pushed through Region 10.
COMMISSIONER SULLIVAN said he agreed that Region 10 may not be
the ones advocating for overreach issues.
CHAIR DYSON requested an explanation of the laws governing
federal and state relations and why they are problematic.
COMMISSIONER SULLIVAN related that Senator Dyson is referring to
statutes that define the state and the federal government's
relationship to land and the use of land. They deal with how
much land will be controlled by the federal government and
include statutory mandates. He spoke of ANILCA and the "No More
Clause" that determined which lands would be federal
designations. He pointed out that a concern is when there is
executive or administrative federal action that conflicts with
state statutes.
9:41:53 AM
CHAIR DYSON requested clarification on what lands entitled to
Alaska as a result of these Acts remain problematic.
COMMISSIONER SULLIVAN offered to provide detailed information on
land entitlements from the federal government to the state and
to Native corporations. He said not all land transfers have been
completed; there are still 5 million federal acres of
entitlement to be settled. The entitlement issues become more
complicated when the amount of acreage left to be transferred is
relatively small. Many people in DNR are working on the final
transfer of the lands. He did not think the federal government
was withholding land, but that the process was very complicated.
He offered to provide more information on ANILCA and its
clauses. He spoke of recent NPRA issues which have potential
implications for state statutes.
SENATOR DYSON said the question was not answered. He requested
more information.
9:45:42 AM
ATTORNEY GENERAL GERAGHTY suggested the committee read the
"Compact Case", a 25-page opinion issued by the Federal Court of
Claims, which was affirmed in 1996 by the federal court without
any changes. Many of the concerns about Alaska's ability to
select its own land were addressed in the Compact Case. For
example, there is an exception in the Statehood Act that allows
the federal government to settle aboriginal land claims. He said
he would be happy to provide a copy of the opinion, and
suggested that the committee study it to learn more about the
issue, which he opined, has been addressed and put to rest.
He pointed out that the U.S. is a republic made up of 50
sovereign states. The federal government is also a sovereign
entity. There is a constitutional doctrine called "Federalism"
that recognizes that those two sovereigns need to coexist. He
said that the problem is that the state/federal relationship has
gotten away from a balance.
He used Affordable Health Care Act as an example of lack of
state/federal balance. It contains a provision that penalizes
those who do not purchase insurance. The Supreme Court found
that was an impermissible exercise of the federal government's
commerce power because there was no limiting principle. The
Affordable Health Care Act was eventually upheld under
Congress's taxing authority. He stressed that there are
limitations that are invoked from time to time. A lot of what
Alaska tries to do as a state is redress imbalance. He pointed
out that land issues are bi-partisan and resonate throughout the
country.
ATTORNEY GENERAL GERAGHTY listed examples of state/federal
issues: Arizona - voter ID and immigration laws; Montana -
intrastate manufacturing and sale of firearms; Oklahoma -
surface mining and reclamation. He assured the committee that it
is a mischaracterization to claim that Alaska is just interested
in suing the federal government; these are bi-partisan issues,
not Alaskan issues, with the exception of those that are
specific to Alaska, such as ANILCA and ANSCA.
9:55:09 AM
ATTORNEY GENERAL GERAGHTY covered several Endangered Species Act
(ESA) litigation cases Alaska is involved in. He noted that the
"game changer" has been climate change. He used the Polar Bear
critical habitat federal court ruling and the Bearded Seal
challenge as examples of where climate change modeling was used.
He stated an objection to the extreme measures proposed by the
federal government related to the ESA. He stressed that Alaska's
responsibility to challenge those decisions, because the next
step involves critical habitat and greatly complicates Alaska
ability to develop on its lands. The district court in Anchorage
did say that the critical habitat decision was overbroad and it
was vacated, so now agencies can proceed with permitting in the
North Slope. He quoted from the findings of the district court.
He emphasized that he does not keep score; however, the state
has a responsibility to challenge these types of rulings.
10:01:29 AM
ATTORNEY GENERAL GERAHGTY brought up ESA issues related to the
Stellar Sea Lion. He described mitigation measures by the
National Marine Fisheries Services (NMFS). He spoke of fisheries
jobs that were lost due to those measures. He described the 9th
Circuit Appeal and said he was struck by how "thin" the science
was that related to the fisheries' harming the Pollock species
and causing nutritional stress to the Stellar Sea Lion. He said
the courts deferred to the federal government; however, NMFS
issued an opinion that the science was flawed. He was hopeful
that a decision could be reached soon.
10:05:33 AM
ATTORNEY GENERAL GERAGHTY turned to the subject of emission
controls. The state of Alaska has brought suit against the EPA
over the emission control area (ECA), a 200-mile ribbon of ocean
shoreline from the coast of Mexico up to the west coast of
Alaska to the Aleutians and along the East Coast. The ECA
requires low-sulfur fuel to be burned in that area. He listed
the air pollution problems in California and the extension of
proposed EPA regulations to southern Alaska. He argued against
the "one size fits all" mentality. He noted the importance of
having sound scientific research. He said including ultra-low
sulfur fuel requirements in Anchorage, Alaska, will raise the
cost of shipping goods. He related that 90 percent of the goods
consumed by 85 percent of all Alaskans come through the Port of
Anchorage.
ATTORNEY GENERAL GERAGHTY brought up the Tongass timber sale
issue. He said there used to be a good relationship between the
state and the federal government. In 1990 ANILCA was amended by
the Tongass Timber Reform Act, which changed the ruling to say
"the federal will seek to meet annual demand for timber," and it
was subject to conditions, including funding. As a result, the
timber industry in the Tongass nearly disappeared.
He noted that the Tongass was supposed to be exempted from the
Roadless Rule because of ANILCA, among other things. However,
that exemption is no longer valid. There is currently a
challenge to the Roadless Rule in Alaska, as well as in Montana
and other states.
ATTORNEY GENERAL GERAGHTY discussed issues of navigability, such
as in the Mosquito Fork River. He said there was currently a
lawsuit about this.
10:11:58 AM
CHAIR DYSON said he hoped that the testimony would explain the
Statehood Compact and how it relates to lands not yet conveyed.
He requested information about ANILCA land selections. He also
wanted to know the value of state lands that were taken away by
the federal government. He questioned ANCSA and how it related
to land development in remote areas due to Native corporation
involvement. He requested more information about the RS-2477
issue.
ATTORNEY GENERAL GERAGHTY explained that the state is on the
verge of filing to protect state rights under the RS-2477
ruling.
CHAIR DYSON requested an explanation of RS-2477.
ATTORNEY GENERAL GERAGHTY related that RS-2477 says that a
traditional use trail on federal land could be claimed by the
state for its own use and ownership. A number of states,
especially Utah and Alaska, are trying to determine where trails
and right-of-ways exist. They must be documented by photo or by
personal testimony. For example, there are trails in the Chicken
area that apply to this rule. The state is in the process of
gathering information on the several hundred trails that have
been identified. The goal is to get the federal government to
recognize that the trails belong to the state.
10:16:59 AM
COMMISSIONER SULLIVAN described the difficulties of the RS-2477
project. He voiced appreciation for legislative funding and for
the work done by DOL and DNR. He noted that Alaska is working
with Utah, which has also spent a lot of time working on the
issue.
CHAIR DYSON related that he has meet with the board in Utah and
wondered if establishing a board in Alaska would be beneficial.
He asked about the Citizens Advisory Committee.
ATTORNEY GENERAL GERAGHTY spoke of his involvement with Utah in
their efforts on a similar project. He opined that Alaska has
all the resources presently needed to work on its trail project.
10:19:29 AM
SENATOR WIELECHOWSKI asked how many lawsuits the state has filed
in the last five years against the federal government, how much
they cost, and what the win/loss ratio is.
ATTORNEY GENERAL GERAGHTY thought there are currently about 10
lawsuits pending. With the exception of ESA litigations, all are
done in house. He offered to provide more information.
CHAIR DYSON said he wanted to show how federal overreach is
affecting individual Alaskans. He gave an example of a man named
Mark Stefanski who obtained all the required permits for his
recreation mine and yet the federal government intervened and
confiscated his mining equipment. Mr. Stefanski said he was
pleased that the state is helping him in his fight against
federal overreach.
MARK STEFANSKI, representing himself, clarified that the mining
equipment belonged to his brother. He described the situation on
his land in Dan Creek and the state's intervention. He related
issues with the federal government's demand that he and his
brother sign a right-of-way certificate. The case is still in
the 9th Court of Appeals. He referenced a similar case - John
Sturgeon Case. He concluded that there has been constant
interference by the federal government.
10:25:45 AM
CHAIR DYSON noted that the state has been very helpful.
MR. STEFANSKI agreed.
CHAIR DYSON voiced appreciation for Mr. Stefanski's testimony.
COMMISSIONER SULLIVAN commented that the state is checking into
the navigability of the Nazina River, which the state believes
is navigable.
SENATOR GIESSEL thanked DOL for intervening in the Sturgeon
Case.
ATTORNEY GENERAL GERAGHTY agreed that was an important case for
the state to support.
SENATOR COGHILL requested to know the number of times Non-
government Organizations (NGOs) have taken the state to court
and how much it cost
10:28:33 AM
COMMISSIONER SULLIVAN said that many of the state's court cases
are due to NGOs initiating the suits. Oftentimes the state sides
with the federal government in such cases. He used lease sales
as an example. He offered to provide the requested information.
10:29:04 AM
There being no further business to come before the committee,
Chair Dyson adjourned the Senate State Affairs Committee at
10:29 a.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| 1-22-13 SenateStateAffairs-Dept of Law Handout FINAL.pdf |
SSTA 1/22/2013 9:00:00 AM |
Departments of Law and Natural Resources Overview |
| State Affairs DNR Handout Federal_Overreach_1_22_13 FINAL.pdf |
SSTA 1/22/2013 9:00:00 AM |