Group takes state to court

PALMER -- "Recall Ogan" and "Our Land, Their Profit," apparel adorning the small group glared in the sunlight bathing the facade of the Palmer Courthouse on Thursday, lending an almost festive air to the attendees.

The atmosphere, however, was one of grim determination and resolve, for the members of this group, Friends of Mat-Su, were gathered to announce that they had filed suit against the state of Alaska in order to reclaim approximately 229,609 acres of land in Mat-Su that was leased for coal-bed methane development in 2003.

Chris Whittington-Evans, president of Friends of Mat-Su, gave his group's case in a nutshell: "What we believe is that the very fact that we've heard from the legislature that [prospective new CBM leases] are flawed is evidence that the existing leases are flawed. We're asking them to do the right thing by taking these leases back."

The two plaintiffs in the case are Friends of Mat-Su, a local nonprofit organization working for responsible land development, and the Kachemak Bay Conservation Society, which works to protect the environment in and around that bay.

The problem stems from a 1996 law (HB 394) that opened up lands for CBM development without the typical requirements of a best-interest study and competitive bidding process. In this manner, according to the plaintiffs, many properties were leased without property owners' knowledge and input. More than 12,300 lots in the Valley with a total market value of approximately $500 million were leased in this manner. Ninety-six percent of these lots were privately owned. In addition, sizable plots of land near Homer and Kachemak Bay were leased.

"Nothing that the legislation has done can take away the fact that these leases were given unconstitutionally," said Whittington-Evans.

HB 531, a new piece of legislation recently put on the books, puts the aforementioned requirements in place for future CBM developments, but makes no provision to void the leases already passed under HB 394.

"The legislature made a halfhearted effort to rectify the problems with the CBM program, but its legislative 'fix' does little for the lands already leased," said Victoria Clark, an attorney with Trustees of Alaska, who is representing Friends of Mat-Su and the KBCS in the case. "Unfortunately, lawmakers listened to Outside corporations and ignored the concerns of Alaskans. Citizens have no choice but to allow a court to decide."

Thus the new suit, which aims to force the state to discard these leases and return the leases to their former legal status. "The legislature has acknowledged the failures of the '96 law by throwing it out," Whittington-Evans wrote in a press release. "[The] trouble is, more than ten thousand parcels remain encumbered by the original, flawed program. We have no choice but to fight for our constitutionally-protected rights."

Among the accusations aimed at the state by FoMS are that the Alaska House and Senate failed to approve amendments giving property owners the right to deny drilling permission on their property; the Senate failed to support an amendment to HB 531 requiring mailed notice for landowners whose land was being considered for lease and that a best-interest finding was not completed along with the leases under HB 394.

This case is the first suit in which Friends of Mat-Su has been involved, said Margot Higgins, CBM coordinator for the group. The decision to throw down the gauntlet in the legal arena was not made without reluctance, Higgins said. "We've really tried to avoid using this tool, but many people here feel that this is the only option," she said.

"The citizens of the Valley and Homer have really tried to work within the system," said Whittington-Evans. "But we have little choice at this point but to challenge the constitutionality of the leases. This day has been one we've been ready to go through with for a long time. This is a very substantial moment for us, and we take it utterly seriously."

The case gives a twofold complaint: that the leasing of CBM rights by the Alaska Department of Natural Resources without adequate notice and best-interest findings violated both Alaska statute and the state constitution. "We believe that the lands that have been leased on our homes have been taken from us unconstitutionally and without regard to Alaska law," said Whittington-Evans.

The primary assertion made by the court complaint is that DNR did not give adequate notice calculated to reach those affected by the developments as stipulated by AS 38.05.945, which provides for the notification of parties via both state and local newspapers prior to issuing leases.

The complaint also claims that DNR issued the leases in violation of Article VIII of the Alaska Constitution, which states that natural resources shall be developed in the best interest of the state's citizens and provides for proper public notice prior to leases.

Buybacks of the leased lands, said Whittington-Evans, would satisfy the claims made by Friends of Mat-Su and pave the way for more responsible CBM development in the future.

Mike McCarthy with the Kachemak Bay Property Owners Alliance made a speech at the Thursday gathering about his own experience with CBM leasing. McCarthy, a Homer resident, said the CBM lease made on his land took him completely by surprise.

"There was no notification whatsoever," he said. "We feel that we were deprived of our constitutional right to due process." McCarthy went on to say that CBM leases represented not the best interest of Alaskans, but the best interest of corporations and other Outside groups.

Steve Lanphier, who has lived in Palmer for more than 20 years and owns 80 acres of land off Buffalo Mine Road, spoke of the natural beauty of his home and how he was saddened by the possibility of it being damaged or tainted by natural-gas development. "It's almost unconscionable to us that anyone would even consider development there, but our land has been leased," Lanphier said, "and we live with that knowledge every day of our lives."

Lanphier said that to jeopardize the natural beauty and health of the Valley in favor of profit-making schemes is inherently wrong.

Paul Twardock also spoke during the Thursday meeting. Twardock owns property on the Matanuska Valley Moose Range that has also been leased for CBM development. The leasing of land in this sensitive natural moose habitat has especially raised the ire of Friends of Mat-Su members.

Twardock said he was outraged that his land was leased without notification. "We live in a democracy that's supposed to listen to people, and suddenly it's as if they don't want our input," he said.

Twardock said he wholeheartedly supported the upcoming legal case, but that he was sorry things had to come to this. "It seems that our state, even after extensive public input, leaves us no choice."

Clark gave a brief outline of what had been accomplished on the case so far and what can be expected in the near future. The state has 40 days to respond to the claims made by the two groups, Clark said, before the case begins in earnest.

A temporary injunction to protect the lands for the duration of the case is an unlikely possibility, she said, since Evergreen Resources doesn't seem eager to move forward with drilling at the present time.

Though much of the case deals with the conflict between landowners and the DNR, Clark said, claims are being made against the state of Alaska since it's the state that delegates responsibility to DNR.

Clark estimates that if things go favorably, the case could be resolved in about a year.

At press time, Frontiersman had not been able to contact Valley legislators, state officials or representatives of Evergreen Inc. for comment. Follow-up articles will present the state's and Evergreen's position on this lawsuit.