AG urges state to up its fight against listings

Alaska must protect development from Endangered Species Act, Sullivan says

Posted: Wednesday, January 27, 2010

Attorney General Dan Sullivan wants to spend $1 million fighting Endangered Species Act listings, and is spotlighting Alaska's involvement in the Kensington mine as an example of how the state can help.

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Michael Penn / Juneau Empire
Michael Penn / Juneau Empire

Sullivan said Coeur Alaska's mine north of Juneau already had lost in lower courts, but the state intervened in the case on the side of the mine.

"When it involves the state, the territory and how it is going to be used, my inclination is to get involved," he said

Sullivan credited the efforts of the Alaska Department of Law, which he now heads, with saving the mine. A federal agency had originally sought the mine's waste discharge permit. After the Court of Appeals loss, the agency wasn't interested in pursuing an appeal.

Without the state's participation, it was unlikely the nation's highest court would have agreed to hear the case, Sullivan said. After the justices did agree to hear it, they overturned the appeals court by a 5-4 vote, paving the way for the mine to open later this year, bringing with it 200 new jobs to Juneau.

"Had the state not intervened, that mine would be shut down, I have no doubt," Sullivan told the House Finance Committee on Tuesday.

Sullivan is seeking budget support for $200,000 to hire an additional in-house attorney to handle ESA listing issues, and another $800,000 to hire Outside law firms to help. The effort could benefit other industries in Alaska the way the state helped Kensington, he said.

"To me, that is the poster child for why we should be intervening more aggressively when the state's interests are at stake," he said.

Rep. Bill Stoltze, co-chairman of the committee, who has frequently been an outspoken critic of federal regulation, chaired the meeting.

On Tuesday, however, it was the button-down attorney general who was getting worked up about attempts to stop development in Alaska.

"I actually get a little but upset about this," he explained at one point.

In one recent case, Sullivan said, an Arizona-based environmental group, Center for Biological Diversity, sued in San Francisco to require the ribbon seal be listed under the Endangered Species Act.

"You have an Arizona-based environmental group suing on the future of how you are going to use Alaska territory," he said.

The group then tried to stop Alaska's efforts to join the case, he said.

"Opposing the state of Alaska's intervention - that's nuts," Sullivan said.

Some lawmakers agreed with Sullivan. "I like the attorney general's vigor," said Rep. Bill Thomas, R-Haines.

Among the species likely to need state intervention are Southeast herring populations, polar bears and Cook Inlet beluga whales, Sullivan said.

Doug Vincent-Lang with the Alaska Department of Fish and Game said the agency is concerned that if herring were listed under the ESA, it could negatively affect Southeast. What began as a request to study Lynn Canal herring populations has been extended throughout the region, he said.

"We recognize that herring stocks go up over time and they go down over time; they disappear from certain places and they reappear," Vincent-Lang said.

When the state successfully showed that Lynn Canal herring were not a distinct species, the federal review was expanded to look at all of Southeast's herring.

Among critics' complaints were that new ESA listings increase the cost of doing business in Alaska, and they also transfer important decisions about Alaska from the state to the courts, such as the Ninth Circuit in San Francisco.

Rep. Les Gara, D-Anchorage, said he objected to hiring outside attorneys for tasks that could be done more cost-effectively by Department of Law staff.

Sullivan said he sought support from other states' attorneys general. He asks them, "Do you think this is an Alaska-only issue? It's not."

• Contact reporter Pat Forgey at 586-4816 or patrick.forgey@juneauempire.com.



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