“Silencing Alaskans Act” Likely to Return

House Bill 77 Sought to Deny Citizens a Voice in Resource Development

Alaska is defined by our natural resources – spectacular wildlife, abundant fisheries, vast reserves of oil, gas and other minerals, and endless acres of forests, wetlands and water.  Under our constitution, these resources belong to all Alaskans for our “common use.” They are protected through a sensible set of laws that protect the public’s interest and ensure our resources are developed prudently and sustainably for the maximum benefit of all Alaskans.

Because of the tremendous value we put on these resources, Alaskans were outraged when Governor Parnell and his Department of Natural Resources Commissioner, Dan Sullivan attempted to wrestle legislators into passing House Bill 77.  This sweeping legislation proposed removing scores of protections for our resources under the guise of “streamlining” industry permits.  It ran roughshod over countless laws, even trampling our Constitution.  Alaskans testified in droves against this dangerous bill and killed it … this year.

Unfortunately, it will likely rear its ugly head under a new name next year.  The Governor and his special interest backers will not give up easily.  Below are just a few of the most harmful provisions of H.B. 77.

GENERAL PERMITS 

Section 1 as originally written allowed the Department of Natural Resources Commissioner to authorize any activity – you heard me, any activity ­– on state land via “a general permit,” so long as the activity won’t result in what DNR considers “significant, irreparable harm to state land or resources.” It gave the commissioner the power to singlehandedly issue permits, “notwithstanding any other provision of the law.”  This was an unprecedented and dangerous expansion of the authority of a single, unelected government official.

It meant that activities that are harmful to fisheries, wildlife, lands and waters could be authorized with few findings and no public input.  Section 1 would have given then Commissioner Dan Sullivan unfettered authority to trump almost any protection currently provided by law.  It undid over 50 years of hard-fought public safeguards in one sentence.

The commissioner could have allowed an activity that wiped out a salmon run for decades or closed hunting in a particular area for a generation.  Neither of these impacts is “irreparable” since eventually hunting or fishing could resume.

Conceivably, DNR would have been granted the authority to issue a general permit for mineral extraction in a sensitive fishery area without public notice or the opportunity to comment.  This raises a host of concerns, not to mention significant constitutional issues as the Alaska Constitution requires public notice of leases or disposals of State land or interests, as well as the ability to challenge those actions in court.

ENSURING WATER FOR FISH 

H.B. 77 as originally proposed also would have taken away Alaskans’ rights to apply for “instream flow reservations” to protect water flow in streams for fishing and other recreation.  Currently, individuals, non-profits, and tribes all can “reserve” water for this purpose.

To make matters worse, the bill required the State to return pending applications for instream flow reservations. DNR has never decided a single instream flow application submitted by an individual, non-profit or tribe—even those submitted 20 years ago—so the bill would have retroactively taken away that right.

TAKING AWAY YOUR VOICE

H.B. 77 would have made it more difficult for Alaskans to challenge DNR decisions by cutting away at “standing,” which is essentially the ability to come before a judge or agency official and challenge a decision.  This is bad for Alaskans and Alaska. It limits the ability of an agency to review and correct its decisions and could lead to expensive court challenges that waste time and money.

The Alaska Constitution protects Alaskans’ right to “due process” – a right H.B. 77 seems to overlook.  H.B. 77 would allow only those “substantially and adversely affected” to appeal a decision. It also limited the right of Alaskans to challenge DNR decisions in court.

BAD LAW

H.B. 77 is an example of a bad bill that should never have been proposed.  It deserves to die forever, but that is not likely.  Stay tuned.  Toward the end of this past legislative session there were talks about stuffing parts of H.B. 77 into another bill.  In the chaos of the end of session the hope was the public would not notice.  It did, and that idea died, but I would urge those celebrating the demise of H.B. 77 to keep vigilant.  These bad ideas are likely to be back next year.

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Bill Wielechowski is the Democratic State Senator from Alaska’s District G, in East Anchorage, serving in this capacity since 2006.

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