Fairbanks Daily News-Miner

EDITORIAL: Time to break up the 9th Circuit

Faribanks Daily News-Miner The 9th U.S. Circuit Court of Appeals should be broken up, split into two or three smaller and perhaps more regionally aware circuits. It’s been the unrelenting plea of Alaska officials for decades, it seems. It should be broken up for many reasons. The 9th Circuit is the largest of the nation’s 13 federal appellate courts. It is based in San Francisco and hears appeals from Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington and the territories of Guam and the Northern Mariana Islands. Together, that’s about 20 percent of the U.S. population and is a disproportionately larger share than of the other circuit courts. The court, as of March, has 29 active judges and 15 judges on senior status, a classification that in many instances has such a judge working as much as one on active status. It’s a large court. Calls to break the 9th Circuit have come from beyond Alaska’s border as well and for a long time. One of the significant factors supporting the division of the court — and one that relates directly to those who find themselves using the 9th Circuit — is that the court takes, by many accounts, an inordinately long time to close out cases. The extended time in closing a case results in extended trauma for people who have truly been victimized, whether in a criminal or civil case. The 9th Circuit’s own website indicates a lengthy process: An oral argument on a civil appeal will occur 12 to 20 months after the filing of a notice of appeal. It’s four to five months for a criminal case. After that, it’s three months to a year until the court issues a decision, though the judges have no time limit. That’s a long time. 9th Circuit Judge Andrew Kleinfeld of Fairbanks strongly favors, and has for many years time, the breakup of the court on which he has served since 1991. He laid out the severe problems of the over-sized court in remarks submitted for a hearing of a subcommittee of the House Judiciary Committee in March of this year. Judge Kleinfeld’s observations about the 9th Circuit should concern residents of all states covered by the court. He provides a grim insight into what he sees as the court’s failings — failings caused by the sheer size of the court, which is so big it cannot ever meet as one, known as “en banc,” to rehear cases. That is left for smaller panels. Here are but a few of Judge Kleinfeld’s many points, in brief: “Our size causes errors, and gives us too much power,” he stated in his 14 pages of written testimony. “When we make a mistake, the impact is colossal, and we do make mistakes. We have so many judges that we cannot read each other’s opinions, and we cannot correct our errors by effectively rehearing cases en banc. “Judges on the same court should read each other’s decisions. We are so big that we cannot and do not. That has the practical effect that we do not know what judges on other panels are deciding. “The Ninth Circuit, because of its size, is not and cannot be a reckonable court. No district judge and no lawyer can, by reading even a few hundred of our decisions, predict what our court will do in the next case. Even if the decisions could be read, there are over 3,000 combinations of judges who may wind up on panels, so the exercise would not be worth the time. “Judges betray their trust if they do not act with shared authority. We were not put in office to be 29 individuals each imposing our idiosyncratic individual will on 60 million people. The en banc process is what an appellate court uses to speak as a single unified organ of authority. Because of our size, that is impossible. “We judges on the Ninth Circuit have too much power over too many people. When we err, the consequences of error can be very great, and the Supreme Court cannot catch all the errors. Much governmental power in our country is confined by distributing it among 50 states. Our court’s excess power can benefit from division into two or three intermediate appellate courts.” Deciding the number of circuit courts is within the purview of Congress; it created the 11th Circuit in 1980, for example. But, as with many issues, opposition exists. Nevertheless, a firm case exists for breaking up the 9th U.S. Circuit of Appeals. The effort to achieve that should continue. Read Judge Andrew Kleinfeld’s testimony to a House Judiciary Committee subcommittee here: http://bit.ly/2yEKhO1

EDITORIAL: Walker gives up, reverses himself on land trust case

Gov. Bill Walker’s decision to not appeal a federal court’s ruling in an Alaska Native lands trust case is as disastrous as the ruling itself. It was a year ago that the state, in taking over a lawsuit against the federal government brought by Alaska tribes in Akiachak, Chalkyitsik and Tuluksak, made a compelling case that the Department of the Interior erred terribly when it changed its rules to allow Alaska Native land to be accepted into trust by the federal government. The department’s action came after a federal District Court judge in the District of Columbia in 2013 ruled that the Alaska Native Claims Settlement Act of 1971 didn’t bar land from being taken into trust. The Interior Department had been relying on its own interpretation of ANCSA, as seen through the department’s implementing regulations, as requiring that Alaska be exempted from provisions in the Indian Reorganization Act of 1934 that allowed for land to be held in trust by the government. Rather than appeal the court ruling, however, the department changed its regulations to comply with the lower court. Putting lands into trust appears as though it would benefit tribes greatly, but it also brings great risk and responsibility. There is no guarantee that the needs of residents on such lands would be improved. Allowing lands to be put into federal trust will come at a fundamental cost to state sovereignty. For example, tribes will gain greater authority to implement their own criminal and civil laws on the land, affecting any Alaskan who would venture onto the trust land and be accused of violating tribal law. Federal funds for a variety of functions, including law enforcement, will become available when the government essentially owns the land in the trust. That’s why the state entered the case a year ago, on Aug. 24, 2015. It was that important. The administration of Gov. Walker appealed the lower court ruling once the Interior Department opted not to. The state argued that the so-called “Alaska exception” was actually mandated by ANCSA itself, and not just through department regulation, and that the exemption therefore superseded the Indian Reorganization Act. The state made crisp, bold points in its appeal. Among them: “Alaska has a major stake in the issue of whether ANCSA remains viable and how millions of acres of land within its borders will be governed.” “Injury-in-fact has occurred here because the district court judgment prevents the state from getting what it bargained for in ANCSA.” “Trust land in Alaska would diminish the state’s authority by creating islands of land within its borders potentially controlled by 229 competing sovereigns, thus harming Alaska’s sovereign and proprietary interests.” “The state has no authority to tax trust land. Furthermore, the Secretary (of the Interior) has stated that trust land in Alaska would be considered Indian country, which means the state could also lose authority to impose on it land use restrictions, natural resource management requirements, and certain environmental regulations. Exercise of police powers and regulation of state resources are fundamental elements of state sovereignty.” “New trust land in Alaska thus harms the state by abrogating its authority over land within its borders and creating widespread uncertainty over governance. Trust land and Indian country could confuse Alaskans and nonresidents who could be subject to a patchwork quilt of legal and regulatory authorities, depending on where they are and whether they are a tribal member or nonmember.” The state’s tough position continued for many pages, and the point was clear: This decision was damaging to Alaska and must be overturned. A three-judge panel of the U.S. Court of Appeals for the District of Columbia sided with the tribes, however, though in a split 2-1 decision. The dissenting judge, Janice Rogers Brown, seemed to share the state’s view when she noted the lower court judge acknowledged that Alaska could be severely harmed. Judge Brown, in her dissenting opinion, wrote “Specifically, the district court enjoined the department from taking any Alaska lands into trust while this appeal was pending because such an action would cause ‘irreparable harm to state sovereignty and state management of land’ in Alaska.” Would the state ask for a hearing before the full appeals court so as to avoid this damage? Surely Gov. Walker would do so given the strong claims made a year ago when the state entered the case. No. Instead, the governor simply gave up and said the state would be attentive and comment as necessary as individual land trust applications were presented to the federal government. The governor stated in news release Aug. 22 that “it doesn’t make sense to use the state’s limited resources pursuing this litigation that has already dragged on for ten years.” Yes, governor, it does make sense — especially if you believe the points your administration raised just one year ago.  

EDITORIAL: Legislators need to join real world to address deficits

A report from the U.S. Energy Information Administration earlier this month contained a small but — from the Alaska view — telling notation. The July 11 report, “EIA projects rise in U.S. crude oil and other liquid fuels production beyond 2017,” projected a continued decline in Alaska’s output. “Production in Alaska continues to decline through 2040, dropping to less than 0.2 million b/d (barrels per day) in 2040,” according to the report. This is not good news for anyone hoping that increased oil production or an increase in oil prices, or both, is going to help Alaska out of its precarious fiscal situation. To think either of those occurrences is going to materialize to help Alaska is folly. Alaskans, and especially those campaigning for a seat in the Legislature, are making a grave mistake if they choose to reject major deficit-reduction efforts in favor of such wishful thinking. Some people, unfortunately, do argue that our situation will be saved by an oil price and production renaissance. Alaska had a $3.1 billion deficit for the current fiscal year, a gap that was covered through Gov. Bill Walker’s $1.29 million in vetoes and by drawing on savings accounts. Those savings accounts are going to run dry in about two years unless the Legislature approves significant legislation to straighten out the state’s finances. Gov. Walker put forward solid ideas in December, but legislators repeatedly balked. Nothing got done. Once upon a time, not too long ago, revenue from Alaska’s oil fields accounted for about 90 percent of the state government’s general fund revenue. Now it’s a fraction of that amount. Massive and sudden change would be needed in the oil world to return to the good ol’ days. The Energy Information Administration report is but one of several that constantly come out about the global oil market, of which Alaska is but one of many players. Those reports have a variety of differing projections based on various price and production scenarios, adding to the uncertainty. Alaska’s own report, from the Alaska Department of Revenue — it issues two reports annually — gives a pretty grim near-term and medium-term outlook about the amount of oil income the state can expect. The cover letter from Revenue Commissioner Randall Hoffbeck spells it out: “The revenue forecast is based on a revised oil price forecast of about $40 per barrel versus $50 in the fall,” he wrote. “The forecast prices over the next 10 years have also been reduced to reflect anticipated future lower prices. The average price is now not forecast to reach $60 until FY 2021. However, with the global contraction on investment in production, and spare capacity that represents less than three percent of global demand — we also recognize the potential for significant price volatility over the next few years.” Oil revenue collapsed several years ago, and there’s little sign of improvement. The year-to-year change in the amount of the state’s oil income is staggering, from $1.69 billion in fiscal 2015 to $801 million in fiscal 2016 to a projected $705 million for fiscal 2017, the current fiscal year. And the fiscal 2015 number is down sharply from the days when oil exceeded $100 a barrel; it’s now about $40. That’s catastrophic. It isn’t going to change anytime soon. And what that means is Alaska urgently needs its residents and its elected officials to live in the real world and not in the world of fantasy.  

EDITORIAL: University of Alaska isn’t to blame for state budget woes

Last week, the University of Alaska faced a barrage of skepticism from legislators unlike any the institution has seen in years. In hearings by the House Finance Committee’s subcommittee on the university budget, chairwoman Rep. Tammie Wilson put forth a mammoth cut that would have represented a loss of nearly a fifth of all state funding. She and other members of the majority told university officials to justify the state money being spent on all university functions outside of basic classroom instruction. Their explanation must not have been satisfactory, as the subcommittee voted to send forward a university budget with $50 million in cuts from last year’s funding level, an amount that would hit the institution like a sledgehammer as it enters its 100th year. In the hearings, Rep. Liz Vazquez said the university hadn’t done enough in its budgeting to prepare itself for the oil price collapse now hampering state revenues. But if legislators want an answer for why the university wasn’t better prepared for less funding, they need look no further than the nearest mirror. The governance of Alaska’s university has long been an arrangement causing friction in the halls of the Legislature. The Alaska Constitution established the Board of Regents as the governing body of the University of Alaska. But in practice, the Legislature holds considerable sway over the university’s direction, because it holds the purse strings for the state funding that makes up close to half the institution’s budget. What’s more, legislators have often included intent language in the university’s budget allocation in a bid to restrict or control how some funds can be used. The university has been forced to rely on state general funds far more than it should have in the decades since statehood, as legislative misadventures from 1959 onward resulted in the institution never receiving more than a fraction of the land grant that would help it be a self-sustaining organization. Even the land grant travesty and the Legislature’s control over a substantial chunk of the university budget would be far less problematic were it not for legislators’ tendency to micromanage the university’s mission. Certainly, oversight and direction can be beneficial. One example of this was the Legislature’s recognition in the mid-2000s that the state was in need of more nurses and engineers, when they directed the university to focus resources on producing more of each. Accordingly, the Fairbanks and Anchorage campuses expanded the pre-medical nursing program and engineering programs. The university was successful in attracting students to the programs, which — particularly in the case of engineering — highlighted the need for new and expanded facilities to provide a modern education. In pursuit of the goal of producing more engineering graduates, the Board of Regents planned for new engineering buildings in Fairbanks and Anchorage. The state’s burgeoning oil wealth and the concentration of legislators in Anchorage made the $78 million UAA engineering building a relatively easy sell — its construction began in 2013 and was finished two years later, complete with an enclosed skybridge to the adjacent Health Sciences building. The Fairbanks facility, however, was another matter. Legislators chose to allocate $109 million to an Anchorage sports center the Board of Regents didn’t see as needed or wanted — thanks to an existing deferred maintenance backlog of hundreds of millions of dollars, the regents were painfully aware of the ongoing operating costs a new building entailed. The Legislature opted for the sports arena anyway, fully funding it and providing piecemeal funding to the much-needed UAF engineering building. When the oil crash hit, construction of the half-finished engineering building stalled; the UAA arena was already complete. The Legislature has made no plan to provide funds to finish the engineering building, an asset that could help students immensely. Now, with budget pressure coming from all directions, some legislators are heaping scorn on the university for not being more prudent with its funds. The truth of the matter is that the Board of Regents’ priorities have been far more prudent than those of the legislators who now, in an ironic twist, are cutting university athletics funding, threatening to shutter the costly sports center that they so eagerly voted to fund only a few years prior. Legislators should know better than to give the university lectures on fiscal responsibility.

EDITORIAL: Omnibus energy bill a chance for bipartisan progress

Since becoming chairwoman of the Senate Committee on Energy and Natural Resources, Sen. Lisa Murkowski hasn’t been sitting on her hands. In addition to routine legislation and a host of bills on priorities of the day, she has spent much time crafting a gargantuan omnibus energy bill that, if passed, would be the first such successful legislation in almost a decade. As it stands now, the bill is in a holding pattern after Michigan senators blocked it due to a lack of action on resolving the Flint water crisis. Both the energy bill and the situation in Flint are worthy of the Senate’s attention, but using one to block the other will serve the country only if both are resolved. The omnibus energy bill, on which Sen. Murkowski has worked with the help of Sen. Maria Cantwell, D-Wash., is a landmark piece of legislation and the product of many months’ heavy lifting by both senators. Before even passing the bill from committee, Sens. Murkowski and Cantwell invited members to submit any and all amendments they wished to have become part of the bill so they could be heard and debated, even if many ultimately didn’t pass muster. In an attempt to ensure bipartisan support for the bill, the senators made sure to avoid loading it up with pork, controversial legislative agenda items or state-specific benefits. That means it doesn’t address hot-button issues such as the proposed Keystone XL pipeline or state priorities such as funding for Alaska’s LNG line from the North Slope. What it does include, however, is plenty important for the Last Frontier and the rest of the U.S. Energy efficiency and weatherization programs are a major focus of the bill, as well as funding for alternative energy options such as microgrid hybrid power systems of the type common in Alaska villages off the road system. There are funds for extending and expanding federal geothermal energy research, from which Alaska — located as it is along the geological “Ring of Fire” — could see great benefits. And though there isn’t money included for the LNG line, the bill would speed up LNG permitting. And when it comes to major infrastructure projects of the sort Alaska LNG would be, time can be a far more valuable resource than money. The bill passed out of the energy committee late last year and looked like it had momentum to succeed on the Senate floor, but its prospects got a bit cloudier when it ran afoul of the water crisis in Flint, Mich. The energy bill as passed from committee doesn’t relate directly to Flint’s situation, of course, but its progress is being blocked by Sens. Debbie Stabenow and Gary Peters of Michigan. The Michigan senators, both Democrats, want to see funds included to deal with the water crisis for their state’s city and others similarly effective. It’s a worthy priority, and Sens. Murkowski and Cantwell recognize that. When the Flint issue blew up a cloture vote on the omnibus bill last week, the two senators worked through the weekend to try to resolve the situation. As late as Feb. 8, there had been no resolution, leaving little time left on the Senate calendar to move the important legislation. Both the omnibus bill and Flint’s water plight deserve consideration, and it smacks of cutting off one’s nose to spite one’s face to potentially torpedo one over a debate with the other. The Senate energy omnibus bill should pass — after nine years without one, it’s time to show that Washington, D.C., doesn’t always have to be the broken morass residents have come to feel it is.  

GVEA purchase won’t help gas project, but should lower costs

Interior electric utility Golden Valley Electric Association’s decision to assume a more minor role in the Interior Energy Project than some hoped was perhaps the worst news for the project’s prospects in 2015. The Alaska Industrial Development and Export Authority had hoped the cooperative would line up for two billion cubic feet of natural gas per year, a substantial base demand that would help reduce costs to residential customers. Instead, GVEA settled on a 12-year deal with local refiner Petro Star to fuel its North Pole generation plant mostly with naphtha, committing to 600 million cubic feet of natural gas as a compromise measure. While this was hard news for the natural gas project, GVEA’s reasoning for making the decision is sound and in the best interest of its members. In order to make achieving the energy project’s $15 price point easier, backers at AIDEA and in the Interior community were hoping Golden Valley would sign on for 2 billion cubic feet of natural gas, a major base from which to build residential demand in the project’s early phases. More gas demand would spread costs out further, reducing the burden on residential customers to repay the bonds upon which the bulk of the energy project is being financed. The net difference in gas costs to residential customers with GVEA’s lessened 0.6 billion cubic foot commitment has been estimated at between $0.60 and $1.50 per thousand cubic feet for residential customers. In a project that has already struggled to achieve its $15 per thousand cubic foot price target, an additional $1 per mcf in cost to customers makes matters even more difficult. But though GVEA has been — and still is — a major part of the IEP, as an area-wide utility, it has more to consider than the target price for natural gas in Fairbanks and North Pole. Its overarching goal is cheaper energy for all of its members, many of whom won’t directly benefit from the natural gas project. And the persistent delays that have pushed back the delivery date for gas aren’t easy for residents to abide, much less a utility presented with a long-term, relatively low-cost fuel source. GVEA’s deal with Petro Star for naphtha locks in 12 years of supply at rates comparable to those available now. If residents could secure a deal like that for their own homes for heating oil, it’s a safe bet the natural gas project would be abandoned altogether. They don’t have that flexibility; GVEA did. It’s difficult to blame the co-op for pulling the trigger on a fuel source that should lower electricity costs for all of its members for years to come. Nonetheless, the natural gas project remains vital to Fairbanks and North Pole residents. Even in the absence of a trucking or rail delivery system, local gas storage and distribution would be essential for the community to take advantage of gas from the large-scale Alaska LNG plan when it comes online. And natural gas appears the best — and possibly only — solution to get North Pole’s air pollution problem under control. GVEA has been good enough to maintain a sizeable chunk of commitment to the project — while 600 million cubic feet isn’t two billion, it’s still a big anchor the project needs, especially since the co-op has pledged to take that gas in the summer, when residential demand will be close to nil. The Interior Energy Project is still a top priority for the community, and GVEA shouldn’t be thrown under the bus for their decision to seek surety in their fuel rates when the opportunity presented itself. That is, after all, what the IEP itself is all about. Golden Valley just took advantage of the opportunity to bring costs down earlier — and possibly more — than would have been possible with natural gas.

EDITORIAL: Sturgeon case vital for Alaska’s sovereignty

The case of John Sturgeon versus the National Park Service and the Department of the Interior is strikingly important with regard to the sovereignty of the State of Alaska. The lawsuit brought by Mr. Sturgeon, an Anchorage resident, in September 2011 is a fairly straightforward one and at 21 pages can be considered brief. It is now in the hands of the U.S. Supreme Court. The lawsuit’s central contention is this: Mr. Sturgeon and his many supporters argue that the National Park Service does not have the authority to enforce its regulations on state waterways that pass through lands under control of the federal agency. The point of debate is a phrase in the Alaska National Interest Lands Conservation Act, approved by Congress in 1980. Section 103, subsection (c) of the act reads as follows: “Only those lands within the boundaries of any conservation system unit which are public lands (as such term is defined in this Act) shall be deemed to be included as a portion of such unit. No lands which, before, on, or after the date of enactment of this Act, are conveyed to the State, to any Native Corporation, or to any private party shall be subject to the regulations applicable solely to public lands within such units.” Mr. Sturgeon, in his lawsuit, alleges the National Park Service abided by that language for 15 years, limiting its authority on state lands — the term includes the submerged land of the waterways —within federal conservation units. But it was in July 1996, the lawsuit says, Park Service leaders chose to extend their authority to encompass navigable waters within conservation unit boundaries “without regard to whether these navigable waters were owned by the state of Alaska.” In doing so, the Park Service decision suddenly made numerous regulations applicable in Alaska. One of those regulations prohibits the use of hovercraft on public lands within boundaries of Park Service conservation units. Mr. Sturgeon at the time owned a hovercraft and had since 1990 regularly used it to access moose hunting grounds within the Yukon-Charley Rivers National Preserve and upriver of the preserve, traveling on the Yukon and Nation rivers. The genesis of his lawsuit came in September 2007, when on a moose hunting trip, Mr. Sturgeon needed to bring his hovercraft to a gravel bar to repair a steering cable. Three armed Park Service law enforcement employees approached him, according to the lawsuit, and told him it was illegal to operate a hovercraft within the Yukon-Charley’s boundaries. “When plaintiff advised the NPS employees that the hovercraft was being operated on a state-owned navigable river and thus the NPS water regulations did not apply, the NPS employees advised plaintiff that he was incorrect,” the lawsuit reads. Following that 2007 incident, Mr. Sturgeon met with Park Service personnel and, because of the Park Service personnel warnings, did not hunt in the area from 2008 to 2010. He sued in 2011, and Alaskans should be glad that he did. A federal judge in Anchorage ruled against him, though, as did the 9th U.S. Circuit Court of Appeals. In both instances, the language in Section 103 of ANILCA may have fallen subject to a version of understanding not in line with the intent of Congress. The state of Alaska submitted a brief in support of Mr. Sturgeon’s view during his appeal to the full 9th Circuit Court. In it, the state argues a ruling against Mr. Sturgeon “upsets ANILCA’s delicate balance between state and federal authority, but it also could be interpreted to impair the ability of Alaska Native corporations to utilize their vast inholdings to secure their economic and cultural well-being as Congress intended.” Further, the state’s filing details the intent of Congress, noting a Senate report accompanying the final version of ANILCA “plainly explains Congress’ intent to prohibit the Park Service from regulating non-federal land as if it were part of a national park and to not allow the Park Service to decide which of its regulations would apply where.” The position of Mr. Sturgeon, the state and others appears strong. Now the matter will be for the Supreme Court to decide. The outcome of the appeal will, regardless of which way the decision comes down, have a direct affect on Alaskans traveling on state waterways that transit units of the National Park System. Alaskans must hope the justices read the language as Congress intended. If not, the Last Frontier, with its promise of freedom and expanse, will lose a little more of itself to the multitudinous pages of a rulebook.
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