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Democracy is not dead in Alaska, but HB 77 is -- for now

Hal Shepherd
OPINION: The death of legislation proposing changes to Alaskans' access to water rights proves that loud and sustained public outcry can indeed change the course of government for the greater good. But Alaskans should keep vigilant for the bill's return. Lestat (Jan Mehlich)

Last week, House Bill 77 was declared dead in the Senate, for the 2014 legislative session. The bill would have limited the ability of Alaska Native tribes and citizens to protect land and water resources in the face of a new natural resource permitting process for the Department of Natural Resources.

Of course, it would have been impossible to move the bill forward after opposition turned into an outcry throughout the state, not only to protect water and subsistence resources but to preserve the rights of tribes and citizens to participate in state agency decision making. Tribal government and other entities, for example, adopted nearly 50 resolutions opposing HB 77 because of it’s harmful impacts to tribal sovereignty and to water, subsistence and traditional uses. Also, hundreds of people attending public hearings and radio call-in shows, newspaper articles and other media pointed to overwhelming opposition to the HB 77.

The fire storm surrounding HB 77 was due in part to its provisions that would deny tribes and individuals the right to file for "in-stream flow reservations," to secure enough water in rivers and streams for healthy fisheries and reduce restrictions on transferring water rights. But what really made folks come out of the woodwork was the proposed law’s exclusion of the public from participation in governmental decision making, including through limiting public comment regarding issuance of water and general permits, the right to appeal the state's granting of water and land use permits and ignoring the reservation of fish and game for public uses in the Alaska constitution.

Amendments to the bill offered by DNR. which amounted to little more than cosmetic improvements designed to make the bill look better without changing the substance, failed to cut through the intense opposition. While one such amendment, for example, apparently, reinstated the right of non-state and federal governmental entities to apply for in-stream reservations, the bill would still prohibit such applicants from holding the right which would, instead, be turned over to a state agency as the owner of the right. Not only would such a situation provide the original applicant with no water right and, therefore no means of enforcing the right after a costly and timely application process, but it would have put tribal applicants in a kind of awkward sub-agency position for the Department of Fish and Game or other program. Also, the amendments allowed DNR to refuse to process tribal or citizen applications, and did not provide for access to due process by applicants in the event in the event of such refusal.

After the amendments were introduced, they were immediately criticized prompting the Senate Resources Committee to take over six hours of public testimony from every corner of the state. The committee also received more than 1,500 letters, resolutions, and petitions. Because of the unprecedented numbers of Alaskans speaking out against it, HB 77 will die in the committee this session.

Gov. Sean Parnell’s concurrence with Sen. Cathy Giessel’s decision, illustrates that supporters of the bill were, finally, forced to listen after Alaska tribes and everyday citizens spoke clearly and loudly. On the other hand, because HB 77 was merely tabled, this does not mean that it is entirely dead -- there’s always next session and more bills. Alaskans must, therefore, remain vigilant and ensure that any future efforts to change the use of the state’s water and other natural resources is conducted using a transparent public process and includes a consultation process with tribes when the proposed changes are significant in scope or would affect subsistence uses and and tribal interests.

For now, we should take time to recognize the significance of tribes, every day citizens and many others who came together in an unprecedented show of unity to speak out for protection of natural resources, tribal sovereignty and public participation in agency decision making. A big thank to all those who showed that democracy is not dead in Alaska.

For 10 years, Hal Shepherd has served as director of the Center for Water Advocacy, a non-profit conservation group that focuses on water and human rights in Alaska.

The views expressed here are the writer's own and are not necessarily endorsed by Alaska Dispatch, which welcomes a broad range of viewpoints. To submit a piece for consideration, e-mail commentary(at)alaskadispatch.com.