Month: April 2019

U.S. Fish and Wildlife Service Criticizes Trump’s Arctic Refuge Drilling Study

In unusually harsh criticism, the U.S. Fish and Wildlife Service says the Trump Administration failed to adequately consider oil spills, climate change and the welfare of polar bears in its rush to open Alaska’s Arctic National Wildlife Refuge to oil drilling. The criticism which appeared in written comments filed by the agency stated that Draft Environmental Impact Statement (DEIS) failed to consider oil spill response planning, analyze impacts of climate change in the Arctic, require polar bear denning habitat surveys; pointed to substantial information gaps and implied that the agency in charge of drafting the DEIS (the Bureau of Land Management) failed to properly consult with USFWS as required by federal law.

The Fish and Wildlife oversight agency comments come at a time of increasing criticism of the BLM’s proposal to lease 400,000 acres in ANWR which is the largest wildlife sanctuary in the United States and which serves has habitat for multiple species including bears, caribou, lynx and muskox. Because 16 billion barrels of recoverable crude oil reserves also lie underneath the area, it is a major component of President Donald Trump’s “Energy Dominance” strategy.

Not only do the USFWS comments illustrates that even federal agency’s are starting to resist the administration’s rush to develop resources in the Arctic at the expense of environmental laws but, like the rest of Trump Arctic drilling campaign, the flawed permitting process which includes an order from the President that the National Environmental Policy Act process be completed within one year and the Final EIS be no more than 150 pages, may result in litigation. Such shortcutting of a process which is intended to be thorough and normally takes years and thousands of pages of documentation, can mean the failure to fully analyze significant impacts, tribal consultation and coordination will be inadequate, important scientific data will be ignored, and the public notice and comment process will be negatively impacted.

U.S. Supreme Court Tells Alaska Moose Hunter to “Rev Up Your Engine!”

The U.S. Supreme Court, recently, ruled in favor of John Sturgeon who sued the National Park Service in 2007, after rangers on the Yukon-Charley Rivers National Preserve  told him he could not use a hovercraft for hunting moose on the Nation River near the Canadian border. While the Park claimed it had jurisdiction to manage navigable waters inside park boundaries, the state which which allows hovercrafts, joined in the law suit and maintained that it had the right to manage waters within the state including those of such rivers.

When in the Spring of 2019,  the U.S. Supreme Court made it’s decision it concluded that, for the purposes of the Alaska National Interest Lands Conservation Act, the Nation River does not qualify as “public land” and, therefore, that the park service does not have authority to regulate Sturgeon’s activities on that part of the river found within the preserve. According to the Court “[t]hat means Sturgeon can again rev up his hovercraft in search of moose.”

Despite worries from tribal interests, that the Sturgeon litigation would reverse decades of  legal precedents for federal subsistence fishing rights in Alaska, the Katie John case was kept intact by a single footnote buried in the middle of the 46-page ruling which stated that the Katie John is “not at issue in this case, and we therefore do not disturb the Ninth Circuit’s holdings that the Park Service may regulate subsistence fishing on navigable waters.” As a result, immediately after the ruling was issued, the Alaska Federation of Native’s largely supported the decision stating “[o]ur Board previously approved two principles related to the case: private landowner’s access to – and use of – inholdings within conservation system units; and no net loss to subsistence rights. This ruling accomplishes both.”

In apparent agreement with AFN, Alaska’s congressional delegation said that the Court upheld “promises made to Alaskans in ANILCA” limiting the NPS rights over state and native lands and praised the decision for not over turning Katie John.

The decision could also impact other rivers in the state which could be interpreted as navigable waters and therefore, under the state, rather than the federal jurisdiction. Concurring opinions from Justices Sonia Sotomayor and Ruth Bader Ginsburg pointed out that the majority decision raises uncertainty about what remains of the park service’s authority over navigable waters in Alaska’s parks.