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Assembly ignores zoning law threats

May 6, 1993

By Michael Gerhardt
Arctic Sounder

The Northwest Arctic Borough Assembly decided to keep in place a controversial zoning ordinance at its April 29 meeting, brushing aside threats of a lawsuit by the state and concerns that the ordinance, and an accompanying comprehensive land-use plan, are destined to fail.

The ordinance, Title 9 of the borough code, gives the borough zoning and permitting power on all lands within the borough, including state, federal and private lands. Title 9 and the comprehensive plan were enacted as a tool to protect subsistence and to regulate access to lands in the NANA region.

The action, made at the assembly's April 29 meeting, extended the April 30 expiration date for the ordinance until Sept. 30 of this year. The assembly also tabled new versions of the ordinance and comprehensive plan in order to further work on them.

The state maintains that the borough has no right to regulate activities on state land and is preparing a legal challenge.

"We're going to file suit for declaratory judgment on that issue," said Attorney General Charles Cole, upon hearing of the assembly's action.

The borough's attorney, David Case, told assembly members during their meeting last week that the state would most likely challenge the ordinance but that he believes the legal system would be the best way to resolve the issue.

Borough Mayor Chuck Greene said the assembly would rather not go to court.

"It's not our preference, but if that's where they want to get this resolved, that's what we will do," Greene said.

By extending the new ordinance, the borough feels it is in a better position to negotiate land management with the state, Greene said.

"It's the only chip we have," Greene said. We were under the impression that if we let our existing comprehensive plan and land ordinance lapse, we would be back where we started."

Borough assemblyman Fred Armstrong disagrees, saying the ordinance is legally unsound.

"The concept is good; I support that," Armstrong said. "I just think there are some problems with the zoning ordinance that we should change."

Armstrong also said residents do not fully understand the effect of the plan, originally intended to preserve subsistence in the region. The borough, he said, has not been working toward consensus with the many private and public entities that will be affected.

The extension was approved 8-2 with one member absent. Armstrong and Assemblyman Grant Hildreth cast the only votes against the extension.

A confrontation between the state and the borough has been brewing since the borough adopted its Title 9 legislation at the end of last year. At the center of the conflict are differing interpretations of what the borough is trying to do.

The borough says it is exercising its right to manage land under its home rule charter. The state sees the legislation as an attempt to regulate fish and game on state lands.

The borough is not entitled to regulate matters on state lands which were intended to be regulated by state agencies, according to the state. Such matters include access to fish and game, access to state lands, and management of existing state airports.

Case, the borough's attorney, expressed concern over the state's interpretation of its powers in an exchange of letters with the attorney general's office.

"I am most concerned that your letter appears to adopt the view that state legislation can preempt the field of a borough's home rule powers. While we agree that under certain circumstances the exercise of home rule authority might be prohibited by state law, we do not think the scope of prohibition is as broad as your letter suggests," Case said in the letter.

The state reiterated its stance, however, in a letter to the borough two days before the assembly meeting. That opposition makes legal action against the borough likely, Case told the assembly before it acted on the legislation.

Although the state has been the most adamant in its opposition to the plan, local organizations and leaders have also voiced concerns over the borough's actions.

Kotzebue Mayor Willie Goodwin Jr., like Armstrong, said most residents in the NANA region do not understand how the plan will affect their use of land.

"For instance," Goodwin said, "what kind of permit would you need to go cut a tree to build a house?"

Not only will the State of Alaska be affected by the zoning plan, major area landowners like NANA Corp. and Kikiktagruk Inupiat Corp. will also fall under the regulatory powers of the borough's plan.

KIC has expressed concern over the plan's lack of a provision requiring users with borough permits to get permission from private landowners. The corporation has said it will not allow the borough to issue permits providing access to KIC lands.

NANA has submitted extensive revisions to the plan.

Response from federal agencies has so far been fairly quiet. The National Park Service, the Bureau of Land Management and the Fish and Wildlife Service all have land within the borough.

"It's safe to say our concerns are different than the state's concerns," said Bob Gerhard, superintendent of the National Park Service's Northwest Alaska Areas.

The Department of Interior is more concerned with how the plan is going to be implemented rather than in the basic legality of the plan, he said.

"There's nothing in that ordinance that conflicts with the (federal) law, but there will be a lot of individual decisions on the applications of the law."

Problems will arise when a federal agency issues a permit for use on federal lands and the borough refuses to issue a permit for the same user.

"I just think that there are so many questions that are unanswered yet. We just really don't know what it means from the federal standpoint until it's used," Gerhard said.