CONFIRMATION OF NEW AG HELD DUE TO FISHING ACCESS CASE
Acting Attorney General Jahna Lindemuth was vetted today by the Alaska Senate Judiciary Committee.
It started well, but quickly got bumpy for the state’s top law enforcement officer when she explained how she was negotiating a settlement to a land access case that was, for some senators, a bridge too far. They appeared far from convinced she was the fighter that Alaska needs.
Lindemuth was asked by senators why, instead of defending Alaska in court, she was negotiating the case that Ahtna Corp. had brought against the State’s historic right-of-way to the Klutina Lake fishing and recreation area, a place where everyday Alaskans have access to salmon and other fish.
Ahtna Corp. sued the State of Alaska about nine years ago, Lindemuth explained. The trial had been set for late April when she filed a pleading with the court to stay the case, in other words put off the trial, so that her department could negotiate a settlement.
Lindemuth said she had to decide whether or not to pursue the case and it was her judgment and her right as attorney general to settle.
A 150-year-old historic trail designation makes all traditionally used trails and byways official state rights of way. RS-2477 gives the public a 100-foot passage through Athna land to the fishing grounds.
Ahtna wants to downgrade the right-of-way designation from RS-2477 to a lesser 17-B, which would greatly diminish access for Alaskans.
Alaska has fought for RS-2477 standards for years, but now the Walker Administration has no stomach to fight.
“We had an all-day mediation at the end of January that went late into the night until 10 at night, and then two weeks more of back and forth between lawyers on the ground on it before I was confident enough that we were close enough for a framework about what would be on the table, before I could put off the litigation.
“I hope that folks at the end of the day will look at it as a win-win,” Lindemuth said. In every negotiation there is compromise, she said, and the State will not get everything it asserted, nor will Ahtna, she said. Some question whether the right of way actually exists.
She would not get into the particulars of the case, since she is negotiating it. But she allowed that she didn’t want to go to litigation because the state could lose, and it would affect other access cases. Settling was her best decision, she said.
Sen. Pete Kelly, R-Fairbanks was not impressed.
“I really don’t want you as the AG to find a win-win situation. Your client is the State of Alaska and I want you to win on this and that should be your approach.” – Sen. Pete Kelly
“I don’t want you dropping this case and pulling the pin,” Kelly said. “I am not as interested in process or win-win or anything like that.
“RS-2477 exists,” he continued. “The problem we had over the years is getting governors to assert, and we need to make sure all the noise is out of the way as we assert our State right on RS-2477, which is federal law.”
To make sure she didn’t misunderstand, Kelly spelled out his concern once again: “It appears as if you’re going to a settlement that doesn’t make sense for the State of Alaska.”
He said he’d need a lot of answers on RS-2477 before he could recognize Lindemuth’s name to the floor for a vote. (As Senate President, Kelly has procedural discretion to move her nomination forward or hold it back.)
Sen. John Coghill, R-Fairbanks, seemed to agree: Access is so limited in Alaska, he asked her to hear them and their concerns on the access issue.
Sen. Mia Costello, R-Anchorage, noted that Lindemuth’s negotiation would have far-reaching impacts on other access issues across the state, and said she was surprised that Lindemuth was afraid to go to trial because the case might fail.
Costello recalled working for Gov. Wally Hickel and said he would fight the federal government without fear of failure. She challenged Lindemuth, who had years before attended elementary school with her in Anchorage, to “take a stand, fight and risk failure.”
Lindemuth could not address the committee’s concerns because she has already entered negotiations in the case.
Lindemuth’s confirmation was held in committee for further hearings next week that will include public testimony.