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Loss of coast zone program hurts state's beluga whale case

Richard Mauer

Back in February, the Parnell administration told a judge that Cook Inlet beluga whales didn't need the protection of the federal Endangered Species Act because the state was perfectly capable of protecting them itself, in part because of the Alaska Coastal Management Program.

But in a notice belatedly filed in the case Friday, the Alaska attorney general's office acknowledged the state had lost that conservation and enforcement tool four months ago. The program expired July 1 when the Alaska Legislature failed to renew it this year, first in its regular session and then in two special sessions.

The February assertion and Friday's notice were made in a lawsuit brought by the state in U.S. District Court in Washington, D.C., seeking to overturn a federal agency's listing of belugas as endangered. The challenge, one of many pursued by Gov. Sean Parnell over environmental decisions by the federal government, sought to forestall potential restrictions on oil drilling and other development in Cook Inlet.

When the Legislature was meeting in Juneau earlier this year, Parnell was lukewarm to renewing the coastal zone management program, saying some versions in the Legislature would have set back development by giving too much power to local communities. When the program expired, Attorney General John Burns said the state had many other tools to influence federal decision making.

But advocates of the program, like Rep. Beth Kerttula, D-Juneau, say the governor was shortsighted in not pushing harder to get the renewal enacted.

"It's a real irony for him to not care about it, given how much he's fighting the federal government, because it's our only way to have an absolute seat at the table, an absolute right to have our voice heard," said Kerttula, who for five years was the state program's attorney.

Two weeks ago, elected officials from Juneau, Kenai and Kodiak announced a drive to establish a new coastal-zone management program through a ballot initiative if the Legislature fails to enact it next year.

"By allowing the program to expire Alaska has lost one very effective tool in helping to shape what happens on federal land and offshore under federal management," one of those officials, Juneau Mayor and former Alaska attorney general Bruce Botelho, said in an interview Sunday. "The Coastal Zone Management Act is actually the only federal law that requires the federal government to submit to local review and state review of land activities."

Lawyers for the state have cited the now defunct coastal zone program in at least three endangered species lawsuits -- ribbon seals, polar bears and belugas. Bradley Meyen, the assistant attorney general who filed the notice Friday, said only the beluga case is pending a decision at the district court level.

In February, the state asked U.S. District Judge Beryl Howell to throw out the beluga listing, saying the federal government overstepped the law because belugas were recovering already and because the state had adequate protections.

In its motion for summary judgment, the state said the coastal management program "ensures that all development projects meet statewide standards and (ensures) enforceable policies that effectively conserve belugas and beluga habitat by preventing adverse environmental impacts."

In a companion sworn statement, Doug Vincent-Lang, the endangered species coordinator in the Alaska Department of Fish and Game, said the state had implemented the coastal management program "to ensure the orderly, balanced utilization and protection of the resources of the coastal area consistent with sound conservation and sustained yield principles."

In August, the Daily News asked Vincent-Lang whether he would inform the court of the demise of the program. In an email response, he said, "The declaration was valid at the time I made it," and declined to comment further.

Meyen, the assistant attorney general, declined to explain why it took the state so long.

"We filed it now. That's all I can say," Meyen said.

In an interview Saturday, Vincent-Lang said the state has many more legal options for managing coastal resources that the federal government should have considered before listing belugas, a point also made by Meyen in his notice to the court.

"We feel still feel confident that we have the tools to preserve beluga whales," he said.

But Kerttula said nothing is quite as good as the coastal program.

The U.S. Coastal Zone Management Act, passed by Congress in 1972 during the heyday of the environmental movement, encouraged coastal and Great Lake states to take over some of the regulation that had been previously in the hands of the federal government, making the rules tougher if they wanted. It was designed to balance economic development with conservation.

"It's the only program that gives you any kind of sovereign and jurisdictional rights over the federal activities," Kerttula said.

While other federal environmental laws like those governing the Environmental Protection Agency and the U.S. Fish and Wildlife Service allow the state to comment on new rules, its opinions could easily be ignored, she said.

"All they legally have to do to meet the requirements under those acts are to say, 'We have seen the comments, we've considered them, and we reject them,' " Kerttula said.

In Washington, both the state and federal government, as well as industry and environmental intervenors, may have to wait a while before a decision in the beluga case. In a one-sentence order filed Oct. 5, the case was reassigned without explanation from Judge Howell, an Obama appointee, to the chief judge of the Washington, D.C., District Court, Royce Lamberth, a Reagan appointee.

Reach Richard Mauer at rmauer@adn.com or 257-4345.


By RICHARD MAUER
Anchorage Daily News
Contact Richard Mauer at or on