Anchorage Assembly asks court to make municipal attorney comply with subpoena in Eklutna River dispute

The Anchorage Assembly on Wednesday called on the state Superior Court to enforce a subpoena requiring the municipal attorney to produce documents related to a dispute over restoring water to the Eklutna River.

Also, Assembly attorneys appealed to the Superior Court a decision by the Regulatory Commission of Alaska that has left the municipality without voting rights over the plan proposed by the Chugach and Matanuska electric associations to return water to the river.

The legal action by the Assembly comes as part of an ongoing disagreement with Mayor Dave Bronson’s administration and Southcentral Alaska electric utilities over a legally required effort to reduce harm to fish and wildlife caused by a dam that dries up the 12-mile Eklutna River.

Under Anchorage city code, the Assembly chair, by a majority vote of the Assembly, can issue subpoenas that compel the release of documents and/or sworn testimony for information regarding public matters it is considering. Historically, Assembly subpoenas have been used rarely, though the Assembly has issued several since Bronson took office.

According to the Assembly’s complaint, Municipal Attorney Anne Helzer did not produce the documents after Assembly Chair Christopher Constant sent her a subpoena last week. They include a binding term sheet that could govern the city’s rights and access to drinking water from Eklutna Lake for the next 25 years.

“The defendant has willfully refused to comply with the subpoena without a valid legal basis,” the complaint said.

The Assembly asked the court to enforce the subpoena, asked that Helzer be held in contempt of court for refusing to comply, and that she be ordered to “show cause” or justify why she shouldn’t be punished for refusing to produce the documents. The complaint calls for the court to impose a “reasonable punishment,” including referring Helzer’s conduct to the Alaska Bar Association or holding her personally liable for civil fines and attorney fees.

Helzer and Bronson’s office declined to comment, citing the open court case.

The term sheet was signed between the Bronson administration and the utilities that own the Eklutna Hydroelectric Project in October, just before they publicly released their draft plan to restore the river. The document has been kept confidential from the public. Helzer has repeatedly insisted that it can’t legally be released due to a previous agreement signed between the city and utilities in 2017.

In a letter sent to Helzer about the subpoena last week, attorneys for the utilities said they do not waive their rights to confidentiality in accordance with the 2017 agreement.

“We cannot agree to the Assembly’s demand for the documents for the Assembly to determine independently whether to publicly release them, because such action would violate the confidentiality, joint legal privilege, and joint defense commitments among the owners” of the hydroelectric project, they said in the letter.

The binding term sheet is based on a $57 million plan proposed by the Chugach and Matanuska electric associations that would tap into the city’s water supply and infrastructure in order to restore some water flow to 11 miles of the river. The agreement would go into effect if the governor approves the fish and wildlife program, city officials have said.

The electric utilities plan to submit their program to Alaska Gov. Mike Dunleavy before the end of the month.

[Native village proposes new option for restoring Eklutna River]

With that deadline rapidly approaching, the Assembly called for the court to immediately consider the matter, requesting a judge to set a hearing Monday for Helzer to justify her position, or for Helzer to turn over the documents by noon Friday.

Helzer last week told Assembly members that they can’t have copies of the documents without first signing a confidentiality agreement.

Assembly leaders say the Bronson administration usurped the Assembly’s legislative authority when it bound the city to the terms without their knowledge. That circumvents the Assembly’s role to oversee fiscal decisions and policy regarding city utilities and property, they say.

They say the utilities do not have the right to impact Anchorage’s drinking water infrastructure without Assembly approval. The Assembly has repeatedly called for Bronson officials to make the term sheet public.

After learning of the agreement’s existence earlier this year, Assembly members viewed the term sheet in a February closed-door session.

One major reason Constant issued the subpoena is that recently, Helzer did not allow an Assembly member to view the document with just Assembly attorneys present. Rather, she required that a municipal attorney remain in the room, according to the Assembly’s complaint.

Tensions over the Eklutna deal have been escalating between Assembly leaders and the municipal attorney. In a letter to the Assembly earlier this month, Helzer accused an Assembly leader of “disrespectful and unprofessional behavior” during a meeting in the city attorney’s office to view confidential legal documents.

The term sheet isn’t the only point of contention. The Dena’ina village of Eklutna, the Anchorage Assembly and some conservation groups have opposed the utilities’ plan because they want to see the full 12-mile length of the river fully restored, with fish passage into the lake.

The utilities’ plan would leave a mile of riverbed dry directly below the dam, and wouldn’t allow fish to swim into Eklutna Lake. The Native village recently proposed a new option in an attempt to compromise with the utilities.

[What’s behind the fight over the Eklutna River?]

Additionally, the Municipality of Anchorage — which currently owns 53% of the hydroelectric project — has not had voting rights within the hydroelectric project’s ownership group for several years.

Assembly leaders say the lack of voting rights has essentially left the Chugach and Matanuska electric utilities in charge of the plan, despite potential impacts to property taxpayers, utility ratepayers and the city’s drinking water.

The Regulatory Commission of Alaska, which regulates utilities, last week denied a request from the Assembly to reinstate the city’s voting power.

The Assembly on Wednesday filed an appeal with the state Superior Court, saying that the RCA’s decision was “arbitrary, capricious, and an abuse of discretion.”