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Federal Issues and Conflicts July 2021

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Federal Issues and Conflicts July 2021 Alaska Department of Law List of Federal Issues and Conflicts July 2021 NAVIGABLE WATERWAYS Alignment with Case or Matter Brief Description Status Federal Approach Kuskokwim River/ Interior The State requested a recordable disclaimer of interest on Board of Land Appeals the Kuskokwim River to resolve a dispute over ownership of a (IBLA) Appeal. Not aligned. portion of the riverbed. The Bureau of Land Management Briefing is complete and we are awaiting a decision by the IBLA. (BLM) denied the request, and the State appealed to Interior AAG J. Alloway Board of Land Appeals. Middle Fork, North Fork, BLM previously found portions of the Middle Fork of the and Dennison Fork of the Fortymile, North Fork of the Fortymile, Dennison Fork, and Fortymile River— West Fork of the Dennison Fork non-navigable. In response to BLM filed an answer denying the navigability of the disputed navigability. Not aligned. the State’s notice of intent to sue, BLM reversed its position portions of the Middle Fork and North Fork of the Fortymile. The on the Dennison Fork and the West Fork of the Dennison parties are engaged in discovery; trial is anticipated Summer 2022. AAGs R. Opsahl, L. Fork, but not the other two rivers. The State filed a quiet title Harrison action on those rivers in October 2018. Navigable Waterways/ The PUMP asserts jurisdiction over, and directs the United Togiak Public Use States Fish and Wildlife Service (USFWS) to adopt Management Plan (PUMP). Not aligned. The USFWS has not proposed the regulations yet. regulations to limit unguided use on state navigable waterways in the Togiak National Wildlife Refuge. AAG A. Nelson July 2021 Page 2 of 16 ACCESS AND LAND Alignment with Case or Matter Brief Description Status Federal Approach In the litigation, the district court upheld the Roadless Rule, and the State appealed. Briefing has been completed before the D.C. Circuit, but in 2018 the appellate court granted intervenor’s request to put the case on hold until the rulemaking is done. In October 2020, Roadless Rule - State of State challenged the application of the Roadless Rule in the USDA published a final rule exempting the Tongass from the Alaska v. U.S. Dept. of Alaska as well as nationwide. The Roadless Rule prohibits the 2001 Roadless Rule. The 2001 Roadless Rule continues to apply to Agriculture (D.C. Cir., 17- building of roads in Inventoried Roadless Areas of national Not aligned. about 5.4 million acres in the Chugach. In December 2020, the State 5260). forests, which essentially shuts down resource development in requested that the abeyance be lifted and the case put back on the many areas of the Tongass. On a parallel track, the State is calendar for argument. The federal government and intervenor AAG M. Gramling pursuing regulatory relief for the Tongass. defendants have requested the case be dismissed as moot. The State's motion to lift the abeyance was granted. The briefing on the merits and the motions to dismiss the case are scheduled for argument. Argument will be held on September 10, 2021. In late December 2020, a group of Alaska Native tribes, tourism businesses, a fisheries advocacy group, and The case is stayed until at least September 1, 2021. The USDA has environmental organizations filed a complaint in the U.S. 2020 Tongass Exemption yet to answer the complaint. The State and various communities and District of Alaska challenging the 2020 Tongass Exemption Rule - Organized Village of businesses have intervened to support defense of the 2020 Tongass Rule. The 2020 Tongass Exemption Rule exempts the Tongass Kake, et al v. U.S. Dept. of Exemption Rule. The USDA requested the stay because the Biden National Forest from the 2001 Roadless Rule. The Complaint Agriculture (Alaska Dist., Uncertain. administration asked that the USDA review the 2020 Tongass alleges that the 2020 Tongass Exemption Rule violates 1:2020-cv-00011). Exemption Rule. The USDA has given notice that it intends to ANILCA, NEPA, the APA, the Organic Administration Act, propose a rulemaking to repeal or amend the 2020 Tongass and the National Forest Management Act. The 2020 Tongass AAG M. Gramling Exemption Rule. The anticipated date for the new rulemaking is Exemption Rule was published following a rulemaking August 2021. process that begin in 2018 with the State of Alaska's petition for an exemption. The State successfully condemned the rights-of-way across Native R.S. 2477 Rights of Way - allotment lands, which was necessary before the case proceeded on State of Alaska v. U.S. the main issues relating to land owned by the federal government. (4:13-cv-00008). State sued the U.S. and others to quiet title to a number of The Native allotment owners appealed that decision to the Ninth Not aligned. R.S. 2477 rights-of-way near Chicken, Alaska. Circuit, and in November 2020 the Ninth Circuit affirmed the district AAGs J. Alloway, R. court. Since the district court's decision on the condemnation, the Opsahl1 remainder of the case has also proceeded. The case is currently stayed pending settlement discussions. July 2021 Page 3 of 16 ACCESS AND LAND, continued There have been three attempts to complete a land exchange with federal administrations. The State has participated as an intervenor- King Cove Road - Friends of Izembek NWF v. For many years, residents of King Cove have been trying to defendant and amicus curiae in past litigation. Most recently, King get a road from the village to the airport at Cold Bay. The road Cove Corporation and the U.S. Dept. of Interior (DOI) entered into a Bernhardt (3:19 cv-00216) would be primarily for health and safety purposes, as the 2019 land exchange agreement, which, like previous similar (Ninth Circuit: 20-35721, airport at Cold Bay is the nearest location where large planes agreements, has been challenged by environmental groups. The State 35727, 35728). Aligned. can land in the area’s often poor weather conditions. A road intervened in support of the agreement. On June 1, 2020, the district directly connecting these two towns would have to cross court vacated the land exchange agreement after finding it violated federally designated wilderness in the Izembek National the Administrative Procedures Act and Title XI of the Alaska AAGs S. Lynch, M. Wildlife Refuge. National Interest Lands Conservation Act. The State, King Cove Gramling Corporation, and DOI appealed the decision to the Ninth Circuit. Oral arguments are scheduled for August 4, 2021 The Secretary of Agriculture granted the State’s petition for a rulemaking to effectively amend the Roadless Rule by promulgating a state specific rule to manage roadless areas in Alaska. USDA published a Notice of Intent to commence the rulemaking on August 30, 2018. But, the USDA declined the State’s request to simultaneously amend the 2016 TLMP concluding that any amended The 2016 TLMP amendment fully incorporated both the to the TLMP must be a second process after the regulation has been 2016 Amendment to the Roadless Rule and the Secretary of Agriculture’s directive to changed. The final rule published in October 2020 exempted the Tongass Land Resources rapidly transition timber harvest from old growth to young Tongass from the 2001 Roadless Rule and directed administrative Management Plan (TLMP). growth. The result would effectively place millions of Not aligned. changes be made to the Tongass forest plan consistent with the additional acres off-limits to timber harvest and other resource changes in timber suitability determinations from the new exemption AAGs M. Gramling, S. development. The timber industry would likely be forced out rule. It is not anticipated that the plan will change regarding the Lynch of business while utilities, mining, and other industries would transition from old growth to young growth. In support of the be substantially harmed. USDA's motion to stay litigation challenging the 2020 Tongass Exemption Rule, the USDA indicated that it did not anticipate approving any projects in inventoried roadless areas in the Tongass. The USDA has yet to amend the TLMP as required by the 2020 Tongass Exemption Rule. The State is monitoring the USDA's implementation of the 2020 Tongass Exemption Rule and the TLMP. The State sought resolution of these issues with the USFS both formally and informally. On April 16, 2020 the USFS issued the The new Chugach NF Plan established de facto final ROD and new Plan, which specifically identified the 2019 Amendment to the Conservation System Units (CSUs) in violation of ANILCA’s Resurrection Pass Trail as a CSU, although the trail has no such Chugach Land Resources prohibition of additional CSUs except by Act of Congress. congressional designation. The new Plan also mandates management Management Plan. Not aligned. The unauthorized CSU’s overlap existing highways, railways, of a number of river segments as if those segments were CSUs, and utilities and will make it difficult to impossible to expand although State highways parallel these rivers and are located within AAG S. Lynch or improve these facilities. the restrictive management areas. The State is disappointed that the USFS did not resolve the State’s concerns with their management plan and the State is considering its options. July 2021 Page 4 of 16 ACCESS AND LAND, continued The EIRMP, adopted January 6, 2017, recommends unjustified mineral closures and conservation designations that are inconsistent with Alaska National Interest Lands Eastern Interior Resource Conservation Act (ANILCA) and Federal Land Policy We continue to monitor congressional and agency action on the Management Plan Management Act’s multiple use mandate. The EIRMP also issue and evaluate options, including administrative action and (EIRMP). Not aligned. fails to provide for lifting outdated ANCSA d-1 withdrawals litigation.
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