Press Release

State to File Amicus Brief in Support of Fairbanks North Star Borough

March 23, 2009

Juneau, Alaska - At the direction of Governor Sarah Palin, Acting Attorney General Richard Svobodny today filed an amicus brief on behalf of the state supporting the Fairbanks North Star Borough's request to the United States Supreme Court to reverse a decision of the United States Court of Appeals for the Ninth Circuit. The issue in the case, Fairbanks North Star Borough v. U.S. Army Corps of Engineers, is whether the borough can appeal a decision by the U.S. Army Corps of Engineers -- that a parcel of land is "wetlands," subject to its jurisdiction under the Clean Water Act -- without first going through a long and costly permitting process.

The case arose from a decision by the Corps that a 2.1 acre tract of land in Fairbanks, underlain by permafrost in places, contained "waters of the United States" and was within the jurisdiction of the Corps. The borough, which owns the land, seeks to build a playground and athletic field on it. If the parcel is considered "wetlands" under the Corps' jurisdiction, the borough cannot develop it without a permit from the Corps. Rather than incur the substantial costs and delays involved with filing for and waiting for an ultimate decision on the permit, Fairbanks filed an administrative appeal of the Corps' jurisdictional determination. The Corps ruled against it; the borough then appealed to the federal courts, and the Ninth Circuit ruled that the Corps' decision was not final and, therefore, could not be appealed. Fairbanks has now petitioned the Supreme Court to hear the case.

"Federal 'wetlands' jurisdiction is a classic example of property owners' constant struggle with the federal government to determine their own destiny," Governor Palin said. "I'm hopeful that our intervention will result in a streamlined process in which would-be developers know where they stand from the beginning."

"The Corps uses a definition of 'wetlands' that is so broad and vague that millions of acres of state, private, and community land may be considered 'wetlands,' " Svobodny said. "Property owners seeking to use their land cannot, in many instances, be sure of the land's wetland status and need a way to quickly and finally resolve that issue so that the time and money required to go through the permitting process are not unnecessarily wasted or do not become cause for the project to be abandoned. The State's amicus brief supports the Fairbanks North Star Borough's arguments by providing a statewide context for this issue and should help the Supreme Court in understanding why it is important to accept the case for review."

In the amicus brief, the state will argue that a landowner should be able to immediately appeal a Corps decision that a parcel of land is within its jurisdiction, rather than being forced to first spend substantial time and money on permits. This issue is particularly important in Alaska where approximately 43 percent of all land is potentially subject to a Corps' wetlands determination.

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