Preferential treatment to the extraction industry is in direct conflict with the rights of Alaska Native tribal entities and citizens to protect salmon and other fish species
Warming at a rate nearly three times faster than the rest of the globe, Arctic freshwater ecosystems are beginning to unravel. In a July 2019 interview conducted by Nome radio station KNOM, Wes Jones, Director of Fisheries, Research, and Development for the Norton Sound Economic Development Corporation, said the scope of a larger-than-normal salmon die-off in Norton Sound that summer signaled a shift in the arctic freshwater ecosystems and affected several communities from east to west, including Kotlik, Elim, Unalakleet, Shaktoolik, Golovin, Alakanuk, and Akiak. According to Jones, “There’s been reports all the way from [Unalakleet] in Eastern Norton Sound all the way over to the Nome area. And it’s a very widespread area.”
Why then is the Dunleavy administration working on a plan that will increase stream temperatures and reduce flows to the list of threats on fish and wildlife species? In answering this question, one must first look at the growing power of the extraction interest over the rights of Alaska citizens. For decades, Alaska has been one of the few states in which citizens and tribes have held the right, along with Federal and state agencies, to apply for and hold instream flow reservations to protect fish and wildlife habitats.
While the mining industry can effectively limit the impacts of mining on sensitive fish and wildlife habitat in Alaska, the industry has never liked the instream reservation law and has continuously lobbied state politicians to overturn it. An increasingly conservative political leadership heard the corporate prayers, and in 2013-14, the Parnell administration sponsored HB-77, which would have prohibited tribal governments and private citizens from applying to the state to reserve water for instream uses.
In 2013, opposition to HB 77, became a major campaign for the Alaska environmental and tribal communities, including a number of tribes across the state who submitted resolutions in opposition, as a result the bill was tabled at the end of the 2013 legislative session. Failing to get the message, the legislature reintroduced the bill in 2014 and opposition to the bill steamrolled into a statewide grassroots campaignnot only to protect water and subsistence resources but to preserve Native Alaskan community’s and citizens’ rights to participate in state agency decision-making. That year, the bill died in the Senate Resources committee.
Under continuing pressure from the industry, however, almost immediately after the resounding defeat of HB 77, Alaska politicians began efforts to bring the bill in through the back door. Within days of the rejection of the bill, instead of the more visible proposed legislation, the Parnell administration turned to more subtle efforts to change the law by allowing citizens and tribes to gather data and submit an application for the reservation but, once obtained, the water rights would be held by the Department of Natural Resources (DNR) which is subject to the political agenda of the administration in power at the time. Then Shortly after his election as governor, the Dunleavy administration simply refused to act on any instream flow reservation applications that would conflict with the same water in which a mining company was interested.
Such preferential treatment to the extraction industry is in direct conflict with the rights of Alaska Native tribal entities and citizens to protect salmon and other fish species as illustrated by a litany of state laws -- including Article VIII of the Alaska Constitution which subjects the authority of the state to issue water right permits for private use, "to the general reservation of fish and wildlife." In other words, while the state is authorized to issue water right permits to private entities (such as a coal company for mining purposes), this authority is limited by the rights of the public to protect water and fishery resources when and where they so choose. In fact, because DNR has been sued and lost in the past for exhibiting such unconstitutional bias to mining corporations, the administration is probably attempting to avoid similar law suits in its current practice of quietly ignoring potential controversial instream flow applications by endeavoring, once again, to change the law.
This time Dunleavy is proposing to resurrect the Parnell administration’s efforts to strip away the rights of individual Alaskans to hold instream flow reservations and other strategies for weakening the right to keep water instream. Under the newly proposed rule, corporations can continue to hold their right to water withdrawals, but Alaskans who want to keep water in streams to protect vital fish habitat will lose the ability to prevent the same corporations from destroying the natural resources that countless Alaskans depend on.
While we can’t stop the impacts of climate change on Arctic freshwater ecosystems, we can stop the impacts of politics simply by stopping yet another illegal assault on the rights of every Alaskan to protect our water resources.
Comments on the proposed rule may be sent by e-mail to firstname.lastname@example.org, or by fax to 907-269-8904. The comments must be received not later than 5:00 p.m. on February 26, 2021.