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House leaders push land bill despite advice that it's unconstitutional

  • Author: Dermot Cole
  • Updated: September 28, 2016
  • Published March 23, 2015

FAIRBANKS --Ten legislators have signed onto a bill introduced by House Speaker Mike Chenault despite a warning from legislative attorneys that it is unconstitutional.

Chenault, a Republican from Nikiski, wants to order the federal government to transfer upward of 166 million acres of federal lands to state ownership on or before Jan. 1, 2017, but state attorneys say Alaska legislators don't have the power to make it so.

"The bill is unconstitutional," the Division of Legal and Research Services said in a Feb. 13 legal opinion, five days before Chenault introduced House Bill 115.

Chenault said at a March 16 hearing it would be up to the courts to decide if the bill is unconstitutional. "I think all of us may feel that this might be unconstitutional," Chenault said, but legislators and lawyers are not the arbiters.

"The courts are who determines what's constitutional and what's not, not a lawyer either across the street or down the street in some office building somewhere," Chenault said.

Chenault and other supporters of the bill said they don't know what it would cost to fight the matter in court, so they attached no legal charges to the state on the bill. They also expressed some support for other legal opinions, including one saying the unconstitutional argument might not be the "slam dunk" violation cited by state attorneys.

The Department of Natural Resources said that if the federal government complied with the state order, the state would have to add employees and the costs would be "significant," but the department said it can't estimate what the total would be.

Anchorage Democratic Rep. Les Gara said there are often legal opinions from legislative lawyers saying a bill "may" be unconstitutional, but this one stood out because of the clear-cut pronouncement. He said there is no doubt the bill is unconstitutional, that it is a waste of money and it contradicts the oath of office he took as a legislator.

"I've taken a look at the U.S. Constitution. I don't see any provision that allows a state to take federal land as much as we might like to. Is there any provision in the U.S. Constitution that you know of that says a state can take land from the federal government?" Gara asked Chenault.

Chenault did not answer, but Tom Wright, who works for Chenault, said, "Not that I'm aware of."

Gara said the logic of Chenault's bill is that Pennsylvania could claim the Liberty Bell and Kentucky the U.S. Mint. For Alaska, Gara said, it would cost money to pursue the case and asked why the state would spend money on a fight that everyone says is unconstitutional.

Chenault did not answer that question either, but Wright said, "It will be up to the governor to decide whether he wants to take it to court."

Fairbanks Rep. Tammie Wilson said there was no need to put any price on the bill because it would cost nothing until the state decided to file a lawsuit. "Right now we're just saying this is what we want," she said.

Chenault said the bill is based on a similar measure in Utah, approved in 2012, demanding the handover of 30 million acres of federal land by last December. Utah set aside $2 million after the federal government refused.

Arizona Gov. Jan Brewer vetoed a similar bill in 2012, saying it was unconstitutional, but the idea has found some support among Republicans in some Western states.

For more than 30 years, Alaska has had a provision in state law declaring that it is unconstitutional for the federal government to own public land in Alaska. The so-called "Tundra Rebellion," approved by voters in 1982, was never implemented. The measure directed the state to start managing the land, but the attorney general declared the plan unconstitutional under the Alaska Constitution and instructed state agencies to ignore it.

Chenault's original bill said that all federal lands, excluding military property and some other classifications, must be turned over by Jan. 1, 2017, but an amended version advanced Monday by the House Finance Committee would allow the federal government to keep 53.8 million acres of national parks.

The legislators co-sponsoring the bill are Reps. Craig Johnson and Charisse Millett, R-Anchorage; Lora Reinbold and Dan Saddler, R-Eagle River; Mark Neuman, R-Big Lake; Wes Keller, R-Wasilla; Steve Thompson, R-Fairbanks; Dave Talerico, R-Healy; Kurt Olson, R-Soldotna; and Bob Herron, D-Bethel.

Wright said Monday the original idea of the bill was to get the federal government to complete the state land entitlement. At statehood, the state was allowed to select about 105 million acres of land, which is about the size of the state of California. It has received all but about 5 million acres.

But Ed Fogels, deputy director of the Department of Natural Resources, said the state has delayed its final selections because there are long-standing federal land orders making some land off-limits for selection. The state would like to see them lifted.

Neuman said that anybody has a right to go to court and that because the state is owed another 5.5 million acres under the Alaska Statehood Act, it makes sense to go to court. There are probably resource-rich areas that the state should be able to pick from federal lands, he said.

Saddler said the 10th Amendment of the U.S. Constitution might make the state land transfer legal, so he supports the bill.

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