Alaska Clash Over Resources and Rights Heats Up
By WILLIAM YARDLEY
JUNEAU, Alaska — Anyone interested in learning more about the distinctive flora and fauna here in the Last Frontier will want to pick up a copy of an unconventional new field guide: the 2010 Annual Report of the Alaska Department of Law.
Just published in January, the report, on Page 21, tells the fascinating tale of the Cook Inlet beluga whale — specifically of Alaska’s legal battle to remove it from the federal endangered species list. On Page 22, it recounts the state’s continuing fight to remove protections for the Eastern Steller sea lion. Page 24 provides an update on the battle against a federal decision that prevents Alaska from killing wolves to protect a declining caribou population.
Yet as the report goes on to say, and as the state’s attorney general, John J. Burns, made clear in an accompanying letter to Gov. Sean Parnell and state lawmakers, the fate of Arctic wildlife is just one front in the fight to free Alaska from the federal environmental restrictions that limit its ability to drill for oil, build roads, mine precious metals and otherwise make a living developing the state and its abundant natural resources.
“The Department of Law, in conjunction with other state agencies and with the assistance of the administration and the Legislature, must and will remain vigilant in protecting against the federal regulatory overreach that threatens our socioeconomic well-being,” Mr. Burns wrote.
Amid the recent rush of resistance to federal initiatives nationwide — with terms like “state sovereignty,” “constitutional conservative” and “nullification” becoming increasingly common in the political patois — Alaska stands out for the considerable experience and irony it brings to the debate. No matter which party is in power in Alaska, the state has long cried for more autonomy, and its governors have boasted of filing suit, even as it has routinely received more federal money per capita than any other state.
Yet setting aside that contradiction, what legal observers say is notable about Governor Parnell’s administration is the degree to which it is following up its words of resistance with legal action — all at once and on many fronts. It is involved in high-profile issues, like protections for polar bears and overturning the health care law, but also in more obscure matters like the fate of wood bison or a small population of caribou on a remote island.
“There’s a lot more litigation,” said Mayor Bruce Botehlo of Juneau, a Democrat who served as attorney general under two governors. “It reflects a deep conviction on the part of the Parnell administration that the federal government has overstepped its bounds.”
The same week that the Department of Law released its report, Mr. Parnell, addressing a Rotary Club meeting in Fairbanks, Alaska, outlined what his office called his “strategy to fight federal overreach.” In February, speaking at the National Press Club in Washington, he said the federal government was “openly hostile” to oil production in Alaska.
“I used to think we in Alaska were the only ones being ill-treated by the federal government,” he said this month in a meeting here with reporters.
Underscoring Mr. Parnell’s commitment is that he recently named his former attorney general, Dan Sullivan, who led many fights against the government, as commissioner of the state agency that promotes oil production.
But Mr. Parnell, who succeeded Sarah Palin as governor, said his perspective broadened after he spoke with Republican governors from other oil-producing states, including Texas and Oklahoma. “I think you’re seeing a new alliance of states that are crying foul,” he said.
That is about as blustery as Mr. Parnell gets. He is not floating threats of secession. (“Don’t get me wrong. We are thankful to be part of this great republic, the United States of America,” he told the crowd in Fairbanks.) Mostly, say people who have been involved in legal issues in Alaska for decades, he is just serious.
Resisting Washington is “part of the cultural fiber of Alaska, but it has definitely been taken to a new level by this administration,” said Tom Waldo, a staff lawyer here for the environmental law firm Earthjustice.“You see this particular eagerness to respond even to imagined provocations.”
He pointed to a lawsuit that the state filed last year seeking to block a federal moratorium on offshore oil drilling in Alaska that did not actually exist. The state filed the case after the United States secretary of the interior, Ken Salazar, suggested during a news conference that a moratorium would be put in place, but it was never carried out.
In dismissing the suit, Judge Ralph R. Beistline of Federal District Court in Alaska, wrote that “the court interprets this claim as a request that the court require Secretary Salazar to formalize a moratorium on oil drilling in Alaska so that the state has something which can be appealed under the Administrative Procedure Act (“APA”). The court lacks the authority to issue such an order.”
Alaska is also among the states whose lawsuit against the federal health care law led a judge in Florida to strike down the overhaul. When the judge later clarified that the law should remain in effect pending appeals, Mr. Parnell issued a statement saying that Alaska would decide how to put the law into effect “on a case-by-case basis,” with the goal of using “state resources for state-based health care solutions to increase access and improve affordability, rather than become more entangled.”
Entangled with the federal government, that is.
Yet nothing seems to generate more legal work here than Alaska’s wildlife. The more federal protections for wildlife there are, the harder it can be for the state to develop natural resources. And while the Parnell administration has attacked the growth of the federal government, it has grown a bit itself in fighting back. It recently created a new position for a lawyer who deals specifically with issues involving the Endangered Species Act.
In 2010 alone, the state fought (sometimes against the federal government and sometimes with it) over polar bears, beluga whales, ribbon and other seals, humpback whales, Steller sea lions, wood bison, caribou, wolves and salmon. In some cases the state was simply challenging a decision through administrative channels. In others, like with protections for polar bears, it filed lawsuits.
States, of course, have been fighting the federal government since the nation’s birth. California has a history of successfully pushing for more regulation, not less. For Alaska, winning or losing might not be determined by the outcome of a single case.
“If all people ever do is roll over, then agencies can become more and more aggressive in their rule-making,” said Stewart Jay, a constitutional law professor at the University of Washington School of Law. “But whenever you’re dealing with agencies that are expecting to be sued, you can expect to have a lot more care taken in the process.”