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Senate would serve Alaska well by repealing Obamacare

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By JONATHAN INGRAM
COMMENTARY

Since its implementation, ObamaCare has wreaked havoc on Alaska, leading to higher premiums, worsening access to care, more dependency, and skyrocketing spending. The Graham-Cassidy-Heller-Johnson proposal in Congress would give Alaska a sensible way out of the ObamaCare mess, helping unwind a disastrous Medicaid expansion while lowering premiums for Alaskan families who buy insurance on their own in the individual market.

According to data provided by the U.S. Department of Health and Human Services, premiums in Alaska’s individual insurance market have more than tripled under ObamaCare, growing from $4,100 per year in 2013 to a whopping $12,500 per year in 2017, and eventually forcing the state to create a state-funded reinsurance program to keep the insurance market out of a death spiral.

Skyrocketing premiums have also led to declining enrollment.

In March 2015, more than 21,000 Alaskans had enrolled in plans through HealthCare.gov. But by February 2017, that enrollment had dropped by a third, dwindling to just 14,000 individuals.

According to state data, the number of Alaska Natives and American Indians enrolled in the individual insurance market have dropped by nearly 45 percent since 2015. And even those who sign up for plans have no real choices. In 2017, just one insurer sold health insurance plans in the state’s individual market.

But it’s not just families’ budgets that are busting—the state budget is at its breaking point as well. When Gov. Bill Walker unilaterally expanded Medicaid under ObamaCare, ignoring a clear statutory prohibition enacted by the legislature, he promised that no more than 27,000 able-bodied adults would ever sign up. But today, just two years after enrollment began, more than 36,000 able-bodied adults are enrolled in the expansion.

And taxpayers are having to deal with the repercussions. Data from the Alaska Department of Health and Social Services shows that Walker’s Medicaid expansion has cost taxpayers$593 million so far—more than 85 percent higher than the $320 million price tag that was initially promised. The state’s rising share of those costs mean fewer resources for education, public safety, and services for the truly needy.

The Graham-Cassidy-Heller-Johnson proposal pending in the U.S. Senate could alleviate some of the fiscal damage ObamaCare has caused Alaska. Recent analyses show Alaska will fare well under the new plan, despite slowed spending growth nationwide.

An earlier version of the proposal would have resulted in Alaska receiving $53 million in more federal funding over the next decade, after accounting for additional Disproportionate Share Hospital payments, with fewer strings attached.

The new funding would even allow Alaska to set aside up to 20 percent of its block grant to use on traditional Medicaid costs.

This is vital, given that the state’s Medicaid costs are projected to double over the next decade and the Walker administration has already announcing forthcoming cuts to hospitals and other providers. Instead, Alaska could redirect current ObamaCare spending back to traditional Medicaid services for the truly needy.

More than 500 Alaskans with intellectual or developmental disabilities are trapped on Medicaid waiting lists to receive desperately-needed home- and community-based services—most having languished there for years. In 2015, the Walker administration announced plans to reduce the number of people moved off the waiting list each year by up to 75 percent, and more recently, the Alaska Department of Health and Social Services proposed additional cuts to services for individuals with developmental disabilities who are already on the program. The Graham-Cassidy-Heller-Johnson plan would free up resources that could be used to help provide services to those currently enrolled as well as those trapped on waiting lists.

But the latest amendment would be even more generous to Alaska than the early analyses suggest.

The plan exempts large rural states — including Alaska — from the proposed caps on Medicaid spending growth. Although the caps will have only a modest effect in reducing Medicaid spending nationwide, Alaska would be exempt from those changes altogether.

The proposal also grandfathers Medicaid eligibility for Alaska Natives who are currently enrolled in ObamaCare’s Medicaid expansion and provides 100 percent federal funding for all Medicaid services delivered to Alaska Natives. And the plan goes even further, providing a permanent bump to the federal Medicaid matching rate in Alaska and Hawaii, which would save Alaska taxpayers nearly $250 million immediately in current Medicaid spending. Over the next decade, that funding boost would amount to an estimated $4 billion.

And finally, the plan reserves nearly $2 billion in short-term market stabilization funding for rural states like Alaska.

The Senate proposal would give state policymakers new flexibility to reduce premiums for Alaskan families and refocus the Medicaid program on the truly needy, making seniors, children, and individuals with disabilities a top priority once again. It would also give the state new tools to encourage able-bodied adults on Medicaid to work, train, or volunteer — what could be one of the biggest Medicaid reforms in a generation. And despite doomsday scenarios put out by welfare advocacy groups, estimates show that Alaska would fare well under the plan.

ObamaCare has created chaos in Alaska’s insurance market and Medicaid program. The Graham-Cassidy-Heller-Johnson proposal could finally begin to reverse that damage and put Alaska on a path to a brighter future.

Jonathan Ingram is vice president of research at the Foundation for Government Accountability, a non-profit research organization dedicated to replacing failed health and welfare programs nationwide.

Shuffle: Walker names long-time Begich aide to commissioner post

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Former long-time Begich aide Leslie Ridle has been named commissioner of the Department of Administration.

The former commissioner, Sheldon Fisher, has moved to head the Revenue Department after the departure of Randy Hoffbeck from the Walker Administration.

Such shuffling is not uncommon in the final year of an administration. Earlier, Walker had to replace his attorney general and three commissioners of the Department of Natural Resources, Education, and Public Safety, when his earlier appointments quit.

Ridle has been acting commissioner for several weeks. Prior to that, she was deputy commissioner. Her appointment must be confirmed by the Legislature, but there is no indication she won’t be waved on through.

Leslie grew up in Douglas and Anchorage, according to the Office of the Governor. Her background includes teaching, as well as working for many years for former Sen. Mark Begich, Democrat, whom many are expecting will run for governor against Gov. Bill Walker.

Ridle is a well-known Democrat activist, and joined Begich this spring in cohosting a fundraiser for the Alaska Democrats at the home of former Gov. Bill Sheffield.

Quote of the week: Berkowitz on Anchorage’s ‘Food Desert’

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“This area is a food desert.”

– Anchorage Mayor Ethan Berkowitz at a  Scenic Foothills Community Council meeting on Oct. 5. Berkowitz was making the case for a grocery store-office park planned development planned for Elmore Blvd. and Tudor Road. The site is a current transportation facility for school buses, which the municipality is trying to move. Residents at the meeting told him that food is readily available and that everyone knows where the grocery stores are in Anchorage.

Pebble CEO responds to Walker statement: ‘He is correct’

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Alaska Public Media may not have gotten it quite right, says the Pebble Limited Partnership in a response issued today to a news report.

Pebble CEO Tom Collier released the following statement regarding Governor Walker’s position, which was reported by Alaska Public Media earlier this week as “doubling down” on his opposition to the Pebble Mine:

“We have long stated that our mine must co-exist with the salmon fishery in Bristol Bay or we should not receive a permit to develop it. This week, Governor Walker elaborated on his position regarding Pebble and stated that we have a high burden in convincing him that Pebble should go forward. The Governor is correct. He should be skeptical, ask hard questions of us, and allow the permitting agencies to do their work.

“Governor Walker specifically said he did not have sufficient information for him to be comfortable or supportive of Pebble. He emphasized the burden was on us to prove the project can be done without a risk to the fish in that area. He went on to say it is a high burden that we have not yet met.

“And he is correct.

“The next step is for Pebble to file a comprehensive plan with the state and federal regulatory agencies and for them to do their work. This agency review should be done without prejudging our work either in support or in opposition. As the head of Alaska’s executive branch in charge of these reviews, Governor Walker’s position is well stated.

“Alaska Public Radio portrayed this appropriate skepticism by the governor as doubling down on his opposition to Pebble, a misleading and incorrect portrayal of his position that remains uncorrected.

“The Alaska mining community knows Governor Walker supports mining. We also know he supports fishing. And above all we know he supports a fair process for projects that could contribute to growing Alaska’s economy, providing new jobs, and contributing to local and state government revenue.”

The Pebble Partnership presented the concepts for its proposed mine during a Resource Development Council meeting earlier this week. Before that, the governor made his remarks showing his strong doubts about the project.

The governor did not issue a response contradicting the Alaska Public Media report.

But his statement to the reporter this week before he even reviewed the new plan was nearly the same statement reported by Alaska Journal of Commerce three years ago: “Based on what I know at this point I’m not in favor of Pebble,” Walker said on Oct. 10, 2014.

Walker campaign treasurers integrated with Ship Creek Group, official office

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A sitting governor has an advantage in a re-election campaign. But never has a sitting Alaska governor had such an advantage as this one has.

Gov. Bill Walker’s campaign adviser and special assistant John-Henry Heckendorn is the latest name to be listed as a deputy treasurer for the Walker-Mallott ticket, along with Scott Kendall, the governor’s chief of staff and several others on the official roster of the Governor’s Office.

Both Heckendorn and Kendall were hired within the last year by the Office of the Governor. The only significant experience either one of them has had is running campaigns. Kendall, now as chief of staff, is suddenly running the entire state. He came fresh off the Lisa Murkowski re-election campaign, but has no real policy experience.

Heckendorn, who founded the Ship Creek Group, was hired by Walker in January. He left the company he founded on Jan. 30, but no one outside Ship Creek Group knows if those ties are actually severed or just swept under the carpet. His cofounders have picked up his 52 percent ownership.

The breadcrumb trail shows direct connections between the Office of the Governor, the Ship Creek Group, and the Walker-Mallott campaign.The treasurer for the Walker-Mallott campaign is Paula DeLaiarro, a principal of the Ship Creek Group. Another deputy treasurer is Shea Siegert, who was with the Ship Creek Group, where he picked up the campaign of Palmer District 11 Rep. DeLena Johnson. Siegert then went to work for Johnson as a legislative research assistant after her election. Correspondence relating to fundraisers for Walker has shown up with his name attached and he is still listed as Johnson’s staff member in the State employee directory, although he has left to work on the Walker campaign. His 2016 filing with the Alaska Public Offices Commission showed his home address as the same as Democrat Sen. Minority Leader Berta Gardner.

In the political world, this is what is called embedding. The Ship Creek Group is handling the day-to-day campaign for Walker-Mallott, and Heckendorn is being paid by the public treasury at the cost of at least $100,000 a year to run the Walker campaign as he stands to the side of Walker at every official event.

“This is classic corruption,” said Steve Strait, an Anchorage media professional. “We’re ranked as the seventh most corrupt state out of 50, and this is an example of that.”

On the Ship Creek Group web site, a disclaimer has recently been posted to clarify the relationship between the company and its founder:

“Note: Founder and former Projects Director John-Henry Heckendorn is currently serving as Special Assistant to Alaska Governor Bill Walker, and is not active in SCG projects or operations. Additionally, SCG wishes to recognize the exemplary work of our 2016 election cycle staff: Genevieve Mina, Jillian Banner, Max Neale, Mark Simon, Peter Heckendorn, and Shea Siegert.”

Heckendorn has, however, been recently overheard telling Alaskans he is leading the Walker-Mallott re-election strategy.

Heckendorn’s photograph is still on the Ship Creek Group’s web site under the “About” tab, which also credits him for the company’s “break the mold” model.

He has also been featured by the dark-money Lottsfeldt Strategies group as in the talent pool of Jim Lottsfeldt, who ran an independently funded campaign to get Walker elected in 2014 and who owns and operates the political blog MidnightSunAk.

Jobless in Alaska: 24 months straight

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August was the 23rd consecutive month of job losses in Alaska, according to the Alaska Department of Labor. Employment opportunities slid another 1.4 percent from a year ago, with the North Slope losing the most jobs year over year — 4.9 percent of the jobs in the far north evaporated. Those are oil patch jobs.

The economic tea leaves, from declining home prices to the meager number of new car imports, tell Alaskans that September will make 24 months in a row of tough job hunting conditions.

But Alaska’s downward slide may be close to the bottom. In the 1980s, during the last big Alaska recession, Alaska had 25 straight months of employment decline, according to the Department of Labor.

In August of 1986, however, unemployment reached an alarming 11 percent. In August of this year, unemployment was 7.2 percent. Nationwide, unemployment is a low 4.4 percent.

While Alaska continues to have the highest unemployment rate in the nation, North Dakota is the place to go for job seekers, with just 2.3 percent of the workforce unemployed.

The unemployment rate in Alaska is hard to gauge because many people leave the state for greener pastures when jobs are scarce, and they are not considered in the overall unemployment count.

In fact, between 2015 and 2016, more than 4,200 people left the state, according to the Labor report. Due to births, the population grew by .4 percent, but school enrollment has dropped or flattened. Population estimates for 2017 will be released in January.

In other economic indicators, personal bankruptcies in Alaska increased by 20 percent from August 2016 to August 2017. Initial filings for unemployment are down 20 percent year over year, to 4,603, according to the report, indicating the downward trend is leveling off.

While Alaska’s downward economic trends may be showing signs of leveling off, some economic and business observers caution against assuming the pattern of the late 1980s will repeat itself. There are many differences between then and now.

Business leaders in the telecommunications, transportation and resource development sectors point to the massive state fiscal gap we are facing today, which policymakers have been unable to close. Combined with the steady drumbeat of new tax proposals coming out of the Walker Administration, new business investment in Alaska — hundreds of millions if not billions — remains on the sidelines until the fiscal environment stabilizes.

 

Snap: Interior bureaucrat quits with blistering letter to Zinke

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Joel Clement was among the first three dozen to be reassigned in the Department of Interior after Donald Trump became president. Clement was considered part of the “swamp” that was obstructing progress in the nation; he was not aligned with what the president had promised the nation.

Clement was reassigned from being a climate change expert to counting money coming into the Interior Department from oil royalties.

He complained. Loudly and publicly. He threatened.

After all, Clement was part of the Senior Executive Service, a class of federal workers who are hard to fire. Many of them end up feeling entitled to the jobs they have. These are federal workers who also can’t be fired without cause, and they have union protection.

Reassigning members of what is known as the SES had to wait, by law, until Interior Secretary Ryan Zinke had been in office for 120 days. Clement and 35 other Interior officials were reassigned on June 28 — 120 days to the day.

This week, Clement had enough of bean counting. He quit his federal job, and sent his blistering resignation letter to the Huffington Post. In it, he calls out Zinke and Trump for “poor leadership” and continues to threaten to make their lives miserable.

“Retaliating against civil servants for raising health and safety concerns is unlawful, but there are many items to add to your resume of failure,” Clement blasted in his letter Zinke, a letter any future potential employer might want to review.

Those failures, Clement said, include “muzzling scientists and policy experts,” conducting an “arbitrary and sloppy review of our treasured National Monuments,” and for altering an Obama-Jewell-era plan for the conserving the greater sage grouse.

“Secretary Zinke, your agenda profoundly undermines the [Interior Department’s] mission and betrays the American people,” wrote Clement, who had worked for Interior seven years. He ended his letter by encouraging Interior Department employees to “resist when necessary.”

KIDS, DON’T TRY THIS AT HOME

Clement’s letter, shown below, is a textbook case of what not to do when leaving a job — and is a good indication of why he was not seen as a good fit for the Zinke team:

Secretary Ryan Zinke
U.S. Department of the Interior
Washington, DC
Dear Secretary Zinke, I hereby resign my position as Senior Advisor at the U.S. Department of the Interior (DOI).
The career men and women of DOI serve because they believe in DOI’s mission to protect our nation’s natural and cultural resources and they believe that service to this country is a responsibility and an honor. I’m proud to have served at DOI alongside such devoted public servants, and I share their dedication to the mission and country, so it is with a heavy heart that I am resigning as a senior official at the Department.
I have three reasons for my resignation:
Poor Leadership. I blew the whistle on the Trump administration because I believe you unlawfully retaliated against me for disclosing the perilous impacts of climate change upon Alaska Native communities and for working to help get them out of harm’s way. The investigations into my whistleblower complaints are ongoing and I hope to prevail.
Retaliating against civil servants for raising health and safety concerns is unlawful, but there are many more items to add to your resume of failure: You and President Trump have waged an all-out assault on the civil service by muzzling scientists and policy experts like myself; you conducted an arbitrary and sloppy review of our treasured National Monuments to score political  points; your team has compromised tribal sovereignty by limiting programs meant to serve Indians and Alaska Natives; you are undercutting important work to protect the western sage grouse and its habitat; you eliminated a rule that prevented oil and gas interests from cheating taxpayers on royalty payments; you cancelled the moratorium on a failed coal leasing program that was also shortchanging taxpayers; and you even cancelled a study into the health risks of people living near mountaintop removal coal mines after rescinding a rule that would have  protected their health.
You have disrespected the career staff of the Department by questioning their loyalty and you have played fast and loose with government regulations to score points with your political base at the expense of American health and safety. Secretary Zinke, your agenda profoundly undermines the DOI mission and betrays the American people.
Waste of Taxpayer Dollars. My background is in science, policy, and climate change. You reassigned me to the Office of Natural Resources Revenue. My new colleagues were as surprised as I was by the involuntary reassignment to a job title with no duties in an office that specializes in auditing and dispersing fossil fuel royalty income. They acted in good faith to find a role for me, and I deeply appreciate their efforts. In the end, however, reassigning and training me as an auditor when I have no background in that field will involve an exorbitant amount of time and effort on the part of my colleagues, incur significant taxpayer expense, and create a situation in which these talented specialists are being led by someone without experience in their field. I choose to save them the trouble, save taxpayer dollars, and honor the organization by stepping away to find a role more suited to my skills. Secretary Zinke, you and your fellow high-flying Cabinet officials have demonstrated over and over that you are willing to waste taxpayer dollars,  but I’m not.
Climate Change Is Real and It’s Dangerous. I have highlighted the Alaska Native communities on the brink in the Arctic, but many other Americans are facing climate impacts head-on. Families in the path of devastating hurricanes, businesses in coastal communities experiencing frequent and severe flooding, fishermen pulling up empty nets due to warming seas, medical  professionals working to understand new disease vectors, farming communities hit by floods of  biblical proportions, and owners of forestlands laid waste by invasive insects. These are just a few of the impacts Americans face. If the Trump administration continues to try to silence experts in science, health and other fields, many more Americans, and the natural ecosystems upon which they depend, will be put at risk.
The solutions and adaptations to these impacts will be complex, but exponentially less difficult and expensive than waiting until tragedy strikes – as we have seen with Houston, Florida, the US Virgin Islands, and Puerto Rico – and there is no time to waste. We must act quickly to limit climate change while also preparing for its impacts.
Secretary Zinke: It is well known that you, Deputy Secretary David Bernhardt, and President Trump are shackled to special interests such as oil, gas, and mining. You are unwilling to lead on climate change, and cannot be trusted with our nation’s natural resources.  – Joel Clement
So for those three compelling reasons – poor leadership, waste, and your failures on climate change, I tender my resignation. The best use of my skills is to join with the majority of Americans who understand what’s at stake, working to find ways to innovate and thrive despite the many hurdles ahead. You have not silenced me; I will continue to be an outspoken advocate for action, and my voice will be part of the American chorus calling for your resignation so that someone loyal to the interests of all Americans, not just special interests, can take your job.
My thoughts and wishes are with the career women and men who remain at DOI. I encourage them to persist when possible, resist when necessary, and speak truth to power so the institution may recover and thrive once this assault on its mission is over.
Joel Clement
4 October, 2017
Whatever his other merits or demerits may be, Mr. Clement apparently does not suffer the affliction of brevity.

Pebble Partnership has a new plan: Almost exactly what the EPA asked for

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The Pebble Mine is smaller, won’t use cyanide, will have no waste rock piles, will have super-safe soil liners, and will impact one fewer drainages that flow toward Bristol Bay.

There will be no mine facilities in the upper Talarik drainage, which was an area of concern for the Environmental Protection Agency in years past.

The current plan for the mine itself is 5.4 square miles, with a total footprint of 12.7 miles, which includes mining facilities and all else associated with the project, which is larger than Alaska’s Fort Knox mine but smaller than the proposed Donlin Mine.

The Environmental Protection Agency had projected that the previous plan was over 13 square miles for the mine itself, although no plan had ever been allowed to be submitted by the agency, which took a dim view of any mine in the area.

To compare, the Ted Stevens International Airport is 7.2 square miles.

The Pebble Limited Partnership says the footprint of the plan is very close to the size that EPA has previously said would be acceptable.

In a presentation this morning in Anchorage, company CEO Tom Collier said the tailing dam, which is described by the company as a type of engineered land mass more than an actual dam, is designed to withstand the greatest possible seismicity predicted by science.

Without cyanide for secondary treatment of the ore, this means the company will go after the less expensive gold, and leave the rest in the ground.

The company also has a plan to expand the partnership by sharing revenue with the people who live in the region through a new corporate entity that would be created. Five percent of the profit would go to that entity, which would be owned 50-50 by local Native village corporations and local residents. The new company includes five local village corporations that would receive an estimated $500,000 per year each.

The approximately 5,000 local residents would get a windfall payment of $500 per year, the company estimates, which would supplement any distributions they might receive directly from their regional or village Native corporations.

As an apparent gesture of goodwill, the company is also saying it will help the people of the region buy back salmon driftnet permits, most of which are owned primarily by people and companies outside the state.

Pebble will also perform business mentoring with village corporations to help them compete for construction and operating contracts associated with the mine. The contracts are worth hundreds of millions of dollars, the company says.

What the company could not do this week is get Gov. Bill Walker to hold back his advance judgment of the plan before it was even presented in its conceptual state.

Walker went on record with Alaska Public Media earlier this week saying he doesn’t support the Pebble Mine, even though he hadn’t seen the plan yet.

Walker, who once had a “wait-and-see” view on mining in Western Alaska, made a deal with the Alaska Democratic Party to run as a nonpartisan candidate with ADP’s support. In exchange for the party withdrawing its own elected Democratic nominee, Walker had to make promises. One was to oppose the proposed Pebble Mine.

“I am not supportive of the Pebble Mine,” Walker told the reporter this week, prior to the Pebble Partnership plan’s official “reveal,” although PLP reportedly had briefed the governor privately.

Walker said the Pebble Partnership had not yet proven to him that the project would not harm the salmon fishery at Bristol Bay.

“I do not have information sufficient for me to be comfortable or supportive of the Pebble Mine. The burden is on them to prove that it can be done without a risk to the fish in that area. It’s a high burden – it’s the highest burden, and to me, they have not met that yet,” Walker said.

Walker ran on a pro-job platform that included ads of him operating a gravel-loader, such as this one that was released just a couple of days before he created a “Unity” ticket with the Alaska Democratic Party.

Mike Heatwole, spokesman for Pebble, said that “high burden” is what the permitting process is for: “The governor is correct that the burden is on us to demonstrate we will not impact the fish resource in the region. While we believe our plan meets this hurdle, the next step is to have our plan thoroughly and objectively evaluated via the permitting process to determine if we meet the high standards Alaskans expect for development.”

Tom Collier, the CEO, echoed Heatwole’s comments in response to a question at a Fairbanks forum later that day.

In May, the EPA reached a legal settlement with the Pebble Partnership, after the Obama Administration had scuttled the project before the company had even had a chance to present it for permitting.

[Read: Battle-tested Pebble CEO earned his chops as Clinton Interior official]

Under the Trump Administration, Pebble is being allowed to undergo the rigorous federal environmental review process. But the company must also get state permits before it can begin construction.

With Walker prejudging the project, is there space for him get behind it in the end if it does indeed meet his “high burden” of proof?

John Sturgeon, hunter, likely heading back to Supreme Court

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Gov. Bill Walker on Wednesday said the State of Alaska will do everything in “our power to protect Alaska’s State rights.”

He was referring narrowly to State rights. Walker expressed frustration with the Ninth Circuit Court of Appeals decision in what is now a legendary hunting access case in Alaska that has gone on for more than a decade.

The court decision was so stunning in its overreach that even Alaska’s usually appeasing governor had to object to the newly expanded federal authority over the State’s navigable waters that run in and around national parks and refuges in Interior Alaska.

There’s not all that much that Walker can do, however. He could file a friend-of-the-court brief when Sturgeon once again goes back to the U.S. Supreme Court for relief from the U.S. Park Service, which Sturgeon most certainly will.

The State can’t take over the case, or pay for the case, or even join the case, even though Alaska has a dog in the fight because if Sturgeon can’t freely navigate the rivers of the Yukon-Charley Rivers National Preserve, then neither can the rest of us.

Walker’s Facebook pronouncement came after the Ninth Circuit ruling had been digested a bit and Alaska’s outdoor access community began to realize how much it impacts every hunter, fisherman, Native corporation, land owner, and even Alaska’s very state sovereignty.

The Ninth had not only emboldened federal overreach over an expanded swath of Alaska, and it also opened up the door on a controversial case known as “Katie John 1.” The ruling said that “Katie John 1” relied on the wrong set of laws, but since it had done so, the Sturgeon case would reflect that ruling.

It all started when hunter and outdoorsman Sturgeon attempted to used his hovercraft to access hunting grounds in Alaska in 2007.

Sturgeon assumed, as many had for decades before him, that navigable waters in Alaska are governed by the State, even though they run through federal land. That was part of the deal with the Alaska National Interest Lands Conservation Act signed by President Jimmy Carter in 1980.

BACKGROUND ON ANILCA

Congress struck a deal when it passed ANILCA and added 104 million acres to national parks, refuges, and wilderness.

Sen. Ted Stevens and Congressman Don Young had spent four years fighting for the rights of Native corporations and the State of Alaska to have economic and cultural opportunity on the lands acquired at Statehood and under the Alaska Native Claims Settlement Act.

ANILCA wasn’t perfect, but with Stevens’ and Young’s help, Congress at least had excluded navigable waterways from the 1980 ANILCA provisions.

But in 1996, the National Park Service adopted a regulation that gave it the authority to regulate activities on state waterways across the nation. They started using this authority in Alaska in spite of ANILCA’s “Alaska exception.”

Fast forward to 2007, when Sturgeon was stopped by the Park Service from using the Nations River as a water highway to hunting grounds. He sued the Park Service and lost in the Ninth Circuit Court, which said that federal regulations can be applied to all lands within the “exterior” boundaries of the parks.

Sturgeon appealed to the U.S. Supreme Court. They took the case.

The Supreme Court sided with Sturgeon unanimously, and said “Alaska is different.” But the high court remanded the case back to the Ninth Circuit so it could review its work, which the justices said was wanting.

The Ninth Circuit this week thumbed its nose at the Supreme Court and expanded federal authority to not only include Native corporation-owned and state-owned lands and waters within the boundaries of national parks in Alaska, but also on waterways outside of national parks and refuges.

The decision would affect abilities of Native corporations to establish commercial developments on their lands and the ability of the State to manage its lands as well as lands the State conveys to municipalities and individual Alaskans.

This is contrary to what ANILCA intended and what Congress promised 37 years ago.

KATIE JOHN CASE RAISES ITS HEAD?

The Ninth Circuit court based this expansion on a ruling the it made in what is known as “Katie John I.” In that lawsuit, the definition of “public lands” in ANILCA includes state waterways so that the subsistence laws applying to federal lands could be applied to state waterways.

That case languished without being taken further when Gov. Tony Knowles refused to defend state sovereignty back in the 1990s. Although Gov. Sean Parnell sought to clarify provisions of Katie John, Gov. Bill Walker walked away from it.

The ruling this week expanded federal authority. But in making its decision, the three-judge panel on the Ninth also implied that its own ruling on the Katie John decision was flawed because it was based on the United States Reserved Water Rights Act, rather on what it now says is more proper: The Commerce Clause.

That ruling may open the door to a future challenge or clarification of the Katie John decision, which gives the federal government control over Native subsistence hunting and fishing on navigable waters owned by the State, when those waters are adjacent to or inside of federal land holdings.

Katie John was an Athabascan elder who had sought to continue fishing along the Copper River, as her people had always done. Her case was meant to clean up a contradiction between federal law and the Alaska constitution. Federal law gives subsistence priority to rural Alaskans, while the state consitution gives equal access to resources.

As for John Sturgeon, he has a few days to decide on whether he’ll appeal to the U.S. Supreme Court once again. So far, his case has cost $750,000.