By Hal Shepherd
With few exceptions, the state of Alaska’s strategy for, quietly, limiting the rights of citizens to participate in natural resource decision making and further insulate government and political officials from public oversight and scrutiny, has been working pretty well. It started a couple of years ago, after Alaska became the only state in the country in which unsuccessful litigants are required to pay attorney fees when such fees are demanded by the prevailing party in state court cases. That the adoption of what is now known as the “Loser Pays Rule,” by the legislature, was intended to target groups and citizens who have no where else to turn but state courts in attempting to protect natural resources, is illustrated by a set of bills adopted during last year’s session that have gradually complemented the Rule in all but crippling the public’s ability to participate in state agency natural resource decision making. This trend continues in this year’s legislature with HB 47 which requires a party seeking a pre-trial restraining order or similar action staying the operation of a permit affecting an industrial operation to provide a financial bond that would discourage most such litigants from seeking out the courts for help.
Yet a chink in the armor of Alaska’s efforts to exclude every day citizens and Native tribal governments from decision making lead by Governor Parnell and the Department of Natural Resources, occurred during the end of last year’s legislative session, after a record number of tribal resolutions and over whelming public comment in opposition to HB 77, which would restrict the rights of such citizens and tribes to protect instream flows and fishery resources and participate in water and land resource decision making, were received. When the Bill came back this year even after overwhelming opposition during last year’s legislature, however, every day Alaskans had finally had enough and, this year, opposition to HB 77 has developed into a, statewide, grass roots, campaign. So, when over 40 tribal resolutions, hundreds of participants in public hearings, commentary through radio shows, Op-eds, letter to the editor s and petitions all illustrated unprecedented opposition, DNR (which is promoting the Bill) was forced to agree to amendments.
It was no major surprise that the DNR amendments were sharply criticized during public testimony before the Senate Resources Committee, almost immediately after they were announced, probably, because they amounted to little more then cosmetic improvements designed to make the bill look better without changing much of anything. The changes to one of the most controversial provisions, for example, which eliminates the rights of tribes and citizens to apply for reservations to keep water instream to protect fish habitat, on face value, now appears to allow individuals and Tribes to seek such reservations. However, the amendments do not grant such entities the ability to hold those rights if granted but, instead, give the rights to another state agency, allow DNR to refuse to process those applications, and does not allow applicants access to due process.
After the amendments to HB 77 fell flat during their first public appearance, Resource Committee Chair and industry loyalist, Sen. Cathy Giessel was faced with a dilemma – how to get the bill approved irregardless of overwhelming public opposition? So, less with over 100 people still waiting to comment, she cut off public testimony, stating that she “wasn’t hearing anything new”. This move, however, back- fired, not only because testimony on the amendments, which were released just 48 hours prior to the hearing, could not have been anything but “new”, but due to intense pressure provide additional space for public comment, Sen. Giessel relented and schedule another round of public testimony.
If the Bill is moved out of Senate Resource, it would then go to Senate Rules, which would schedule it for a floor vote, then it would go to the House for a concurrent vote. That supporters of HB 77 have blinked (for now) illustrates that through continuing to testifying, making phone calls and comments and sending emails to law makers, we make sure it doesn’t get that far! Alaskans must continue to tell the legislature that the amendments failed to provide anything new to eliminate the substantial threat that HB77 presents to Alaska’s natural resources and citizen and constitutional rights.
Hal Shepherd is the director Center for Water Advocacy
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