Current Issue

  • Volume 39,
  • Number 2 -
  • February 2023

Note From the Editor

Keynote Address

Keynote Address: Alaska Native Peoples and the Environment
Elizabeth Saagulik Hensley Esq.



Heat Waves and a Public-Private Partnership in Alaska
Karen Sandrik & Sarah Matsumoto

The recently-passed Inflation Reduction Act represents the largest single step that Congress has taken to combat harms from climate change. In its over $360 billion commitment, the Act incentivizes clean energy development and generation, includes methods to directly lower residential utility bills and increase home efficiency, promotes cleaner transportation and agricultural practices, and funds states’ and cities’ efforts to meet their individual climate goals. While many environmental organizations applauded the Act’s passage, some—even simultaneously—expressed concern about its tradeoffs: the Act continues to invest in fossil fuels, subsidizing pipeline construction and guaranteeing new oil and gas leases, specifically expanding leasing in Alaska’s Cook Inlet.

Given the scope and magnitude of climate change, the need for legal and policy action will only accelerate. Some efforts may be large-scale and sweeping in nature, like the Inflation Reduction Act, while others may be more confined and issue-specific. Where the focus is on a narrower aspect of the problem, or on a particular localized need, opportunity exists for collaboration between public and private entities to provide solutions. So-called “public private partnerships” have long existed in this space, yet there are few case studies analyzing the effectiveness of such partnerships.

This Article contributes to the conversation by providing one case study that demonstrates a method for assessing public-private partnerships in the context of climate change. Building on themes and principles from contract law and environmental justice literature, the Article identifies key characteristics of successful public-private partnerships and explains how participants in these partnerships could further environmental justice while also meeting partnership goals. The Article then applies its suggested framework to an existing public-private partnership in Alaska and describes how participants in these partnerships might want to structure, implement, and assess their success.

Protecting Subsistence Lands While Boosting the Bottom Line: The Enhanced Federal Tax Incentive Available to Alaska Native Corporations for Donations of Conservation Easements
Timothy Troll & Konrad Liegel

Alaska Native corporations face a dilemma. They own land of immense and significant cultural and ecological value. Their lands are critical for maintaining the Alaska Natives’ subsistence needs. But they are also corporations established under the law to maximize the economic value of their land holdings to provide financial dividends to their Native shareholders. This paper explores the enhanced federal tax incentive for donations of perpetual conservation easements that became available in 2015 to Alaska Native corporations. The tax incentive offers Alaska Native corporations a way to protect the aboriginal lands conveyed to them under the Alaska Native Claims Settlement Act while reaping the potential economic value of those lands.

This paper also summarizes certain legal issues that are likely to occur in donated conservation easement transactions and offers guidance on how to address each issue. These issues include, among others: (1) how to qualify the conservation easement under state and federal law; (2) whether to have a nonprofit land trust, government agency or an Alaska Native tribal entity hold the conservation easement and how to make them eligible to do so; (3) how to handle the fee estates split between the Alaska Native village corporation (typical owner of the surface estate) and the Alaska Native regional corporation (typical owner of the subsurface estate); (4) whether to include subsistence uses as a conservation value to be permanently protected under the conservation easement; (5) how to address certain appraisal rules to properly substantiate the value of the conservation easement for federal charitable deduction purposes; and (6) if some funding is available for the conservation easement, whether and how to structure and substantiate the transaction as a bargain sale under applicable federal tax rules.

The authors conclude that under the right circumstances, making use of the enhanced federal tax incentive for conservation easements may be just the tool Alaska Native corporations need to protect the subsistence value of their lands while also boosting their bottom lines.


Coastal Marine Debris in Alaska: Problems with
Plastics, Pollution, & Policy

Savannah Artusi

Plastics pollute people and the planet throughout their lifecycle, from intensive extraction of raw materials to chemical leaching during their use to entangling animals in discarded plastic products. Plastic waste is especially troublesome in Alaska, where the state’s extensive shoreline and coastal communities are disproportionately inundated with plastic marine debris. Current policies internationally, in the United States, and in Alaska have not done enough to prevent plastic waste from ending up on Alaska’s coasts, to hold plastic producers accountable for that waste, or to provide Alaskan communities the support needed to remove the waste themselves. This Note offers several proposals to address the rising tide of plastic pollution, including a system for holding plastic producers accountable for plastic throughout its life cycle, changes to grant programs that fund marine debris cleanups, and other improvements to existing international, federal, and state plastic policies.

Wilderness v. Oil: Resource Balancing in the Arctic
National Wildlife Refuge

Megan Mason Dister

The Arctic National Wildlife Refuge (ANWR), a national wildlife refuge in a remote region of Alaska, has captured the national spotlight for decades due to conflicting viewpoints on how to manage the refuge’s resources. ANWR is home to a large population of diverse species and Alaska Native communities. However, it may also contain large quantities of oil. Debates over ANWR resource management often provide only two options: preserve the Coastal Plain as wilderness or allow energy development. In 2017, a congressional budget resolution opened a portion of ANWR (the Coastal Plain) to oil and gas leasing for the first time. Concerned with the environmental impacts of this resolution, the Biden Administration is currently evaluating oil and gas development in ANWR. This Note outlines how managers historically have balanced resources in ANWR and evaluates options for balancing resources in the future. It also explores practical ways the Biden Administration and Congress could cancel oil and gas leases, and ways to reimagine this debate to expand beyond the binary options of wilderness or oil.


The Kenai Rule in Four Acts: Bear Baiting, Firearms,
and Hunting: Comment & Analysis of Alaska v.

Jon C. Nachtigal & Mike Stocz

The Kenai Rule, enacted by the U.S. Fish and Wildlife Service in 2016, prohibits (a) the hunting of brown bears with bait in the Kenai National Wildlife Refuge, (b) most hunting in the Skilak Wildlife Recreation Area, and (c) the discharge of firearms along the Kenai and Russian Rivers. The Kenai Rule was challenged by the State of Alaska and Safari Club International in Alaska v. Bernhardt. This Comment provides an overview of the case as it was heard in the District Court of Alaska. This discussion includes arguments and counterarguments surrounding the application of four legislative acts: the Administrative Procedure Act, the National Wildlife Refuge System Improvement Act, the Alaska National Interest Lands Conservation Act, and the National Environmental Policy Act. Additionally, this Comment examines the holding and subsequent public response to the Ninth Circuit’s decision in Safari Club International v. Haaland, the public’s opinion on bear baiting, the culling of predators to increase moose and caribou populations for hunters, and the future impact this decision will have on the federalist arrangement of Alaska’s natural resources.