Current Issue

  • Volume 40,
  • Number 2 -
  • December 2023

Note From the Editor
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Notes

Among the Rarest: Saving the Eastern North Pacific Right Whale
Elza Bouhassira
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The North Pacific Right Whale (NPRW) is perhaps the rarest, most endangered large whale species in the world. Only about thirty surviving individuals make up the eastern population, which lives in waters around Alaska. This note aims to highlight the crisis facing eastern NPRWs and the steps that can be taken to support the recovery of this rare whale. The paper first presents information on the history of the species and its importance. It next examines existing international and domestic U.S. legal regimes as well as a pending petition to revise NPRW critical habitat off of Alaska. Finally, it advances six recommendations to support the eastern NPRW’s recovery: (1) more data collection should be facilitated; (2) the precarious situation of the NPRW should be shared to raise public awareness and support for protection measures; (3) the critical habitat designation should be expanded, but to a lesser extent than the petition has requested; (4) a whale-ship interaction risk reduction regime should be adopted; (5) whale-friendly fishing gear should be widely adopted; and (6) commercial whaling must remain illegal. It argues that with the right protections, eastern NPRWs can avoid extinction.

In the Dark: State v. Alaska Legislative Council and Public-School Funding in the Face of the Dedicated Funds Clause
Joe Perry
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In the past several years, Alaska has faced many challenges in its public education system. These challenges gave rise to an intense political debate, significant new legislation, and a protracted battle over the future of funding for public education. Governor Mike Dunleavy and the state legislature publicly clashed over the implementation of H.B. 287, a 2018 state law designed to provide financial stability to ailing schools and curtail teacher layoffs. In 2022, the Supreme Court of Alaska resolved the dispute in favor of the governor and found a contentious piece of state legislation unconstitutional under the states “Dedicated Funds Clause.” This Note examines the Court’s decision in State v. Alaska Legislative Council, considers the underlying constitutional issues in the case, and explores the implications of the ruling. In particular, this Note argues that the Court incorrectly decided the case on multiple grounds—misinterpreting the plain text of the relevant constitutional provisions, the framers’ intent, and the court’s own precedent in a decision that will exacerbate existing troubles with public education in the state. The proper interpretation of the Dedicated Funds Clause matters for legislators, government agencies, teachers, parents, and children in Alaska going forward.

Sustainable Mining Challenges: Alaska Water Permitting and the United States Green Energy Transition
Morgan Pettit
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This Note addresses the myriad of legal and regulatory barriers new mining projects face in Alaska at present. These barriers have become increasingly important at a time when the United States has sought to bolster its domestic mineral supply chain. With over 100 newly located critical mineral deposits, Alaska may be the best place in the United States to establish further domestic sources of critical minerals. By streamlining the regulatory process at both the federal and state level, Alaska can better (1) protect domestic supply chains from global disruptions; (2) maximize the economic benefits of meeting increased global demand for these minerals; (3) contribute to a global energy transition towards clean and renewable energy sources; and (4) balance important local environmental policy concerns against global policies addressing climate change. This Note provides an overview of the regulatory landscape at present and outlines proposed reforms for the future.

Towards Better Local Governance in Alaska’s Unorganized Borough
Jake Sherman
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Alaska’s unorganized borough is the only unincorporated county-equivalent area in the entire United States, but the Alaska Constitution never envisioned that would be the case. The framers of the Alaska Constitution drafted a revolutionary article on local government that prioritized localism—participation in local government—to further democratic engagement in the state. Recognizing that much of rural Alaska lacked the population and infrastructure to support incorporated and localized self-governance in the 1950s, the framers opted not to automatically incorporate the entire state under various borough governments. Even so, the framers made clear that the state was to play an active role in encouraging (and even compelling) the incorporation of rural sections of the state as time progressed.

Today, many sections of the Alaska’s unorganized borough eligible for incorporation remain unincorporated, resulting in a number of adverse governance outcomes for rural and urban communities alike. This Note argues that Alaska maintains a positive obligation to incorporate eligible sections of the unorganized borough and that its failure to do so is unconstitutional under the state Constitution. Acknowledging the potential dangers of imposing local government on non-consenting citizens, this Note also articulates why borough governance may further the Alaska Constitution’s localism mandate by developing the regional political communities envisioned by the framers.