Haycox wrong on ANWR and Alaska’s rights as a state

John Coghill,Chad Hutchison

February 11, 2015

On Feb. 5, Steve Haycox published an opinion piece entitled, “Alaska leaders’ talk against Obama is cheap, and ignores the long-established law of the land [2].”

Respectfully, we disagree with a few of the points made, particularly on the Arctic National Wildlife Refuge. Any unilateral executive branch movement towards “de facto” wilderness designations should properly be resisted by Alaska’s state and federal leaders.

To briefly recap:

Recently, the U.S. Fish and Wildlife Service under the U.S. Interior Department, recommended with the support of President Barack Obama, a revised comprehensive conservation plan that Congress designate 12 million more acres of ANWR as wilderness. If approved, all of ANWR’s approximate 19.2 million acres would be part of the national conservation system. That would include 1.5 million acres of the coastal plain area, also known as the “1002 area”. If a 2005 U.S. Geological Survey is correct, the coastal plain (in currently nondesignated wilderness sections), may have up to 10 billion barrels of undiscovered oil and 37 trillion cubic feet of natural gas.

Many view the recommendation by itself as a further hindrance to potential development. The coastal plain, which already had very restrictive “minimal management,” may “de facto” be managed as wilderness (even without Congressional approval). As the state looks to the future and struggles to refill the pipeline, that’s not good news.

To put this in context: Until the 1970s, the federal branches willingly assisted in the development of state resources (adopting the “wise use” philosophy). That’s changed. Now, as perceived by many, the agencies’ intent is to restrict development and preserve the “wild-nature” of large portions of Alaska. More often, this occurs against the majority will of the people who actually live in-state.

On to Haycox’s opinion piece:

President Barack Obama’s announcement last week that he endorses renewal of the Interior Department’s management plans for the Arctic National Wildlife Refuge and National Petroleum Reserve, and that certain biologically sensitive areas of the Chukchi and Beaufort Seas are off-limits for oil drilling, generated a political firestorm in Alaska. Our political leaders cried foul. They argued that the federal government doesn’t have the right to do whatever it wants in Alaska, that Alaska has a sovereignty that empowers it to limit what the federal government can do here. Their anger is misplaced. (Emphasis added).

Haycox misdiagnoses the anger. More precisely, the anger is correctly building against the federal executive branch, which, despite assertions to the contrary, cannot do “whatever it wants in Alaska.”

President Obama has, through his agencies, established a troubling pattern throughout the state. Alaskans have become increasingly frustrated with “de facto” lawmaking beyond the authority of Congress.

Haycox goes on:

Where might such empowerment come from? Some say from the “compact theory” of federal governance. Others say from promises the federal government made.

It may be wise to remind the public about the history of the term “compact” in Alaska. When Alaska joined the union, we were not merely absorbed by the federal government. We weren’t a colony then. We’re not a colony today.

The Alaska Statehood Act was passed by Congress on June 30, 1958. The term “compact” was used in Section Four of the Act:

“As a compact with the United States said State and its people do agree and declare that they forever disclaim all right and title to any lands or other property not granted or confirmed to the State.”

After the Act passed Congress, the next step was critical: Alaskans had to march to the polls to ratify the terms. Those were the very terms that were fashioned by Congress and the Alaska delegation.

In plain English, the legal basis for Alaska’s statehood is not simply an act of Congress subject to “easy amendment.” It is a compact. It is a contract. Specifically, it’s a contract between two sovereign entities agreed upon by both parties. It cannot be unilaterally amended by one side without the other’s consent.

Congress knew the Statehood Act was not like other legislation. The act could not be unilaterally amended by Congress. During debate, Nebraska Sen. Hugh Butler famously stated:

A bill which grants statehood is not some minor piece of legislation, but is a major function of the national legislature. We cannot undertake to perform that function without reminding ourselves that we are asked to make a grant which cannot be revoked.We cannot, therefore, consider these bills as we would ordinary legislation, in the sense that ordinary legislation may be amended or changed in subsequent years as experience dictates. (Emphasis added). 104 Congressional Record 12316-17 (June 26, 1958).

So, what does this have to do with ANWR?

Just like with the statehood compact, Alaskans grow upset over unilateral action taken by the federal government that seemingly changes or circumvents prevailing authority or agreements. With ANWR, unilateral movement is not coming from Congress, but instead, through unelected federal bureaucrats, encouraged by the president.

With the recent ANWR recommendation, there is considerable concern about a potential violation under the Alaska National Interest Lands Conservation Act Section 1326(a). That section specifically states that future land withdrawals by the executive branch (of more than 5,000 acres), must be approved by Congress. Any withdrawal would terminate unless Congress passes a joint resolution of approval within one year of that notice.

While the recommendation for wilderness designation is just a recommendation, under Fish and Wildlife Service policy, the recommendation must be managed to not diminish the “wilderness character.”

The result?

“De facto” wilderness is created and managed as such. This, effectively, usurps the intent of Congress and ANILCA. That does not sit well with many Alaskans.

The growing anger against the federal executive branch is more nuanced than Haycox acknowledged. Supporters of strong, overpowering federal agencies need to recognize that unelected bureaucratic “ultimate decision-makers” living comfortably in Washington, D.C. don’t always know best. Infamously, even the U.S. Environmental Protection Agency has struggled in front of the U.S. Supreme Court when, throughout the years, the agency has tried to expand its regulatory authority under the Clean Water Act.

What does it all mean?

To give up in Alaska would be unwise. The agencies are not impervious to mistakes. The chess match between Alaskans and Washington, D.C. is far from over.

Sen. John Coghill has served in the Alaska Senate since 2009 and previously in the state House of Representatives. Chad Hutchison is an attorney. Both were born in Fairbanks.

The views expressed here are the writer’s own and are not necessarily endorsed by Alaska Dispatch News, which welcomes a broad range of viewpoints. To submit a piece for consideration, e-mail commentary(at)alaskadi [3]spatch.com [3]

Author: Ann Northcutt

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