By Naomi Klouda
An Alaska Superior Court decision issued last week is gaining interest as the Alaska Legislature takes up discussions on House Bill 77 and Senate Bill 26. The bills take away the right of Alaska Tribes and residents to intervene for salmon stream protections. The bills give those rights to federal and state agencies.
On Feb. 25 the Superior Court ruled that the Department of Natural Resources violated its own regulations by denying Alaskans their right to give input.
The decision in Chuitna Citizens Coalition vs. Dan Sullivan, Commissioner, Alaska Department of Natural Resources, takes on importance as the Alaska Legislature considers the bills, which will strip Alaskans of their right to protect “instream flows.”
Alaska operates under a water law system called the “prior appropriation doctrine,” Cook Inletkeeper’s Bob Shavelson explains. Under prior appropriation, anyone can get a right to use water by withdrawing or reserving it from a ground or surface waterbody, then putting that water to a beneficial use, such as for drinking water, crop irrigation or even industrial use (e.g., cooling water for an engine).
“The key behind the prior appropriation doctrine is that it’s based on the notion of ‘first in time, first in right’ – which means the first person to appropriate water from a specific waterbody has a superior right to that water than anyone who appropriates water afterward. The prior appropriation doctrine has been embraced by western states, because it’s better suited to dryer areas containing fewer rivers; in eastern states, the riparian doctrine typically applies, which allows anyone along a waterbody to make ‘reasonable use’ of the water unless it adversely affects another user. This doesn’t necessarily make sense for a wet state like Alaska, but water law is a creature of a long, tangled web of history,” Shavelson wrote at Inletkeeper.org
In 2009, the Chuitna Citizens Coalition filed for instream flow rights on Middle Creek, which supports wild runs of Chinook and Coho within the Chuitna River Watershed. DNR accepted these applications, but refused to process them, according to the lawsuit.
Later, in 2011, DNR approved Temporary Water Use Permits in just eight days that allowed PacRim Coal to remove up to 305,000 gallons from the same waterbody. Chuitna Citizens appealed the TWUP decision, arguing DNR had to consider the water they had requested for fish habitat before giving water-use rights to PacRim for its coal extraction.
Chuitna Citizens took its case to Alaska Superior Court, represented by the public interest law firm Trustees for Alaska. The Alaska Superior Court overturned the DNR decision, holding that DNR had to consider Chuitna Citizens application to keep water in the stream for fish.
Superior Court Judge Mark Rindner ruled specifically that DNR erred by considering Chuitna Citizens’ “moot” and therefore not an “appropriator of record.”
To read more on these legal definitions, go to http://inletkeeper.org/blog/fish-first
Update: Late Tuesday, the governor’s office announced the Alaska House of Representatives passed House Bill 77, his bill to reform and streamline the state’s permitting process.
The legislation reforms and streamlines the process for obtaining, issuing and appealing permits, leases, best interest findings and other authorizations dealing with land and water issued by the Department of Natural Resources.
The bill passed 23-14.
Yeas: Reps. Mike Chenault, Mia Costello, Eric Feige, Lynn Gattis, Mike Hawker, Pete Higgins, Lindsey Holmes, Doug Isaacson, Johnson, Keller, Lynn, Millett, Cathy Munoz, Ben Nageak, Mike Neuman, Olson, Lance Pruitt, Reinbold, Dan Saddler, Bill Stoltze, Steve Thompson, P.Wilson, T.Wilson
Nays: Rep. Alan Austerman, Harriet Drummond, Bryce Edgmon, Neal Foster, Les Gara, Max Gruenberg, Bob Herron, Andy Josephson, Steve Kawasaki, Beth Kerttula, Kreiss-Tomkins, Paul Seaton, Geran Tarr, Chris Tuck
How the Chuitna decision impacted their work on the bill had not been explained to the Legislature prior to its passage, said Rep. Paul Seaton in his weekly address.
“House Bill 77 is on the floor and deals with permitting and processes for water in the state. We have not yet received information about any interaction between the bill and the appeals court decision this last week,” he wrote.
The bill’s biggest proposed change is that only federal and state agencies and their political subdivisions such as boroughs and cities would be able to apply for water reservations, and not individuals and corporations.
Seaton was able to get an amendment adopted in House Resources stating that any entity that had previously filed water reservations would have a year to transfer that application. The original bill had retroactively terminated the applications of all, except the newly qualified agencies. He wasn’t successful in getting tribes included in the category of qualified holders of water reservations.
“I think it is counterproductive for a Legislature very concerned about ‘federal overreach’ to put tribal governments in the position of having to engage a federal government agency as their surrogate to apply for and hold water reservations for subsistence concerns,” Seaton wrote. “I assume tribes would engage federal agencies because that is where their relations are for subsistence recognition and regulation as the state does not recognize the subsistence priority.”
Sen. Peter Micciche will be in Homer Friday to speak with the public and the Homer City Council. Beginning at 5 p.m. in the Homer City Council Chambers, the public is invited to eat pizza and ask questions of the senator.
Rep. Seaton will be back Saturday and Sunday, March 23 and 24 to hold townhall meetings. He will meet, along with Speaker Chenault and Rep. Olson in Soldotna at the Kenai Peninsula Borough Assembly Chambers from 10 a.m. to 1 p.m. He plans to hold a townhall meeting in Ninilchik March 23 and in Homer March 24. Details on the Ninilchik and Homer meetings will be announced.
Sen. Lisa Murkowski voted in favor of a move to give the administration flexibility in how $85 billion of sequestration budget cuts are made in 2013.
The cuts will be a 10-year process. She voted against a permanent tax hike to avoid spending cuts in the near term.
“The Administration has said they do not have the flexibility to make the truly painful cuts and former Defense Secretary Panetta said last week that he wished there was some discretion built into the process,” Murkowski said in a prepared statement.
“So, today I voted to give the federal government more judgment when it comes to spending cuts instead of the blunt, indiscriminate instrument of sequestration. We need smart, targeted cuts to begin to responsibly address our nation’s debt.”
Sequestration boils down to automatic spending cuts to the tune of $1.2 trillion over 10 years, she said. More strategic cuts must be made, but that’s just one piece of the puzzle.
“We also need comprehensive pro-growth tax reform, and America must also come to terms with the ballooning automatic federal spending increases and understand reforms are needed to important mandatory programs like Medicare, Medicaid and Social Security to keep them sustainable, as well,” she said. The bill put forth by the Senate Majority was a short-sighted approach to get through the next 10 months.
Comments are closed