[Senate Hearing 108-163]
[From the U.S. Government Publishing Office]
S. Hrg. 108-163
ALASKA NATIVE ALLOTMENT SUBDIVISION ACT; CAPE FOX ENTITLEMENT ACT; AND
THE ALASKA LAND TRANSFER ACCELERATION ACT
=======================================================================
HEARING
before the
SUBCOMMITTEE ON PUBLIC LANDS AND FORESTS
of the
COMMITTEE ON
ENERGY AND NATURAL RESOURCES
UNITED STATES SENATE
ONE HUNDRED EIGHTH CONGRESS
FIRST SESSION
on
S. 1354
TO RESOLVE CERTAIN CONVEYANCES AND PROVIDE FOR ALTERNATIVE LAND
SELECTIONS UNDER THE ALASKA NATIVE CLAIMS SETTLEMENT ACT RELATED TO
CAPE FOX CORPORATION AND SEALASKA CORPORATION, AND FOR OTHER PURPOSES
S. 1421
TO AUTHORIZE THE SUBDIVISION AND DEDICATION OF RESTRICTED LAND
OWNED BY ALASKA NATIVES
S. 1466
TO FACILITATE THE TRANSFER OF LAND IN THE STATE OF ALASKA, AND FOR
OTHER PURPOSES
__________
AUGUST 6, 2003
ANCHORAGE, ALASKA
Printed for the use of the
Committee on Energy and Natural Resources
______
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WASHINGTON : 2003
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COMMITTEE ON ENERGY AND NATURAL RESOURCES
PETE V. DOMENICI, New Mexico, Chairman
DON NICKLES, Oklahoma JEFF BINGAMAN, New Mexico
LARRY E. CRAIG, Idaho DANIEL K. AKAKA, Hawaii
BEN NIGHTHORSE CAMPBELL, Colorado BYRON L. DORGAN, North Dakota
CRAIG THOMAS, Wyoming BOB GRAHAM, Florida
LAMAR ALEXANDER, Tennessee RON WYDEN, Oregon
LISA MURKOWSKI, Alaska TIM JOHNSON, South Dakota
JAMES M. TALENT, Missouri MARY L. LANDRIEU, Louisiana
CONRAD BURNS, Montana EVAN BAYH, Indiana
GORDON SMITH, Oregon DIANNE FEINSTEIN, California
JIM BUNNING, Kentucky CHARLES E. SCHUMER, New York
JON KYL, Arizona MARIA CANTWELL, Washington
Alex Flint, Staff Director
Judith K. Pensabene, Chief Counsel
Robert M. Simon, Democratic Staff Director
Sam E. Fowler, Democratic Chief Counsel
------
Subcommittee on Public Lands and Forests
LARRY E. CRAIG, Idaho, Chairman
CONRAD BURNS, Montana, Vice Chairmaa
GORDON SMITH, Oregon RON WYDEN, Oregon
JON KYL, Arizona DANIEL K. AKAKA, Hawaii
BEN NIGHTHORSE CAMPBELL, Colorado BYRON L. DORGAN, North Dakota
LAMAR ALEXANDER, Tennessee TIM JOHNSON, South Dakota
LISA MURKOWSKI, Alaska MARY L. LANDRIEU, Louisiana
JAMES M. TALENT, Missouri EVAN BAYH, Indiana
DIANNE FEINSTEIN, California
Pete V. Domenici and Jeff Bingaman are Ex Officio Members of the
Subcommittee
Dick Bouts, BLM Fellow
David Brooks, Democratic Senior Counsel
C O N T E N T S
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STATEMENTS
Page
Angapak, Nelson N., Jr., Vice President, Alaska Federation of
Natives........................................................ 23
Bisson, Henri, State Director, Bureau of Land Management,
Department of the Interior..................................... 6
Borell, Steven C., Executive Director, Alaska Miners Association,
Inc............................................................ 29
Borup, Bruce, CEO, Cape Fox Corporation.......................... 41
Loeffler, Bob, Director, Division of Mining, Land and Water,
Alaska Department of Natural Resources......................... 14
Miller, Rosa, Tribal Leader of the Auk Kwaan..................... 44
Murkowski, Hon. Lisa, U.S. Senator from Alaska................... 1
Rey, Mark, Under Secretary, Natural Resources and Environment,
Department of Agriculture...................................... 4
Van Tuyn, Peter, Trustees for Alaska............................. 33
Verrett, Timothy C., Borough Attorney, Bristol Bay Borough....... 46
APPENDIX
Additional material submitted for the record..................... 57
ALASKA NATIVE ALLOTMENT SUBDIVISION ACT; CAPE FOX ENTITLEMENT ACT; AND
THE ALASKA LAND TRANSFER ACCELERATION ACT
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WEDNESDAY, AUGUST 6, 2003
U.S. Senate,
Subcommittee on Public Lands and Forests,
Committee on Energy and Natural Resources,
Anchorage, AK.
The subcommittee met, pursuant to notice, at 10 a.m. in
Loussac Public Library, Hon. Lisa Murkowski presiding.
OPENING STATEMENT OF HON. LISA MURKOWSKI,
U.S. SENATOR FROM ALASKA
Senator Murkowski. Good morning. Welcome to the Energy
Committee's Subcommittee on Public Lands and Forests field
hearing today in Anchorage, Alaska, where the sun shines all
the time. Hopefully, we won't have to stay inside for too long
on this glorious day, but I want to thank all of you who have
come today for this hearing on some very important issues.
I'm Senator Lisa Murkowski. With me at the dais is
professional staff from the Energy Committee, from the
Subcommittee on Public Lands and Forests, and individuals who
have joined us both from Washington, D.C., and from around the
State to listen to the legislation that we recently introduced
and its impact on the State of Alaska, so welcome to all of
you.
Special welcome to Under Secretary Mark Rey who's traveled
from Washington. His responsibility includes overseeing the
U.S. Forest Service. We also have the director of the Alaska
Division of Mining and Land and Water, Mr. Bob Loeffler,
welcome. And the State Director for BLM, Mr. Henri Bisson. It's
nice to see all of you here today. I'm looking forward to the
testimony we will receive.
I would like to begin by thanking both the chairman of the
Senate Committee on Energy and Natural Resources, Senator Pete
Domenici from New Mexico, and our subcommittee chairman,
Senator Larry Craig, from Idaho. Both of these gentlemen will
be traveling to Alaska later this week, but were not able to
make this schedule as far as this field hearing, but they are
good friends to Alaska, and they have provided good leadership
and support to the many land and resources issues that face our
State.
Before we get started, I would like to comment briefly on
the committee process. It might be different than what you
normally experience in these assembly chambers. I know the
committee process in Washington is far different than the
committee process that I have experienced in the State
legislature.
This hearing today is the first step in what is hopefully
an inclusive process to listen and gather information from a
variety of perspectives to help ensure that in the end, the
Senate passes legislation that makes sense for the country, but
more importantly, it makes sense for us in Alaska. I expect
that this legislation will change as it moves through the
process, as legislation often does.
Now, I would like to say that we would be able to include
everyone's testimony who would like to speak out on these
issues, but we have limited time, and we have limited the
testimony to invited witnesses only. This is basically how it's
done in Washington. I'm not saying because we do it Washington
this way, that that is the right way to do it, but in the
interests of time, and recognizing the gathering of information
we're attempting here this morning, we have limited it to
invited testimony from the witnesses with time limitations, but
I would encourage any of you and those who may be here this
morning to submit written testimony within the next 2 weeks.
All written testimony will be included in the committee's
official hearing record and will be available to the public. So
this is not just an exercise. You can get out and put your
thoughts down on paper, and it does become part of the public
record. The committee will review it and take your thoughts and
concerns into consideration.
We will be hearing testimony today on three Senate bills.
The first is S. 1466. This is the Alaska Land Transfer
Facilitation Act. We have a panel here today to help us
understand the provisions of the bill. But I will tell you, it
does not require any expert knowledge for me or any other
Alaskan to understand the real importance of this legislation.
Under the Statehood Act, Alaska was promised 104 million acres
of land. To date, we have received final title to only 42
million acres. Additionally, in 1971 the Native corporations
were promised 42 million acres of land and have received title
to only a third of that land, 15 million acres. The legislation
that we will be reviewing today will streamline administrative
processes that will expedite transfer of millions of acres of
land to the Alaska Natives, the State of Alaska, and the Native
corporations, and will bring finality to this decade's long
conveyance process by the year 2009, which coincidentally is
the 50th anniversary of our statehood.
The Federal Government has management jurisdiction of over
63 percent of the State. It's long past time to transfer these
public lands from Federal Government control to State and
private ownership. This legislation will accelerate the process
to release of lands for conveyance to Native corporations and
the State of Alaska. It will also complete land boundaries to
allow landowners to more efficiently manage their lands, thus
minimizing estate problems.
Further, this legislation will create a hearing and appeals
process located in Alaska, which will ensure a more expedited
process. Disputes and appeals that are likely to emerge
requiring administrative review will be handled by judges
located in the State. Alaska cases will no longer have to sit
in the queue line with every other agency's appeals within the
Department of the Interior.
The second piece of legislation we will be considering
today is S. 1354, the Cape Fox Land Entitlements Adjustment
Act. This legislation addresses an equity issue for one of
Alaska's rural village corporation.
Cape Fox Corporation is an Alaska village corporation
organized pursuant to the Native Land Claims Settlement Act by
the Native village of Saxon by Ketchikan. As with other Alaska
village corporations in the southeast, Cape Fox was given the
ability to select 23,040 acres. But unlike other corporations,
Cape Fox was the only ANCSA village corporation restricted from
selecting the lands within 6 miles of the boundary of the home
rule city of Ketchikan. As a result of this 6-mile restriction,
only the mountainous northeast corner of Cape Fox core
township, which is non-productive and of no economic value, was
available for selection by the corporation. Cape Fox's land
selections were further limited by the fact that the Annette
Island Indian Reservation is within its selection area and
unavailable for ANCSA selection.
Clearly, Cape Fox was on an inequitable economic footing
relative to other village corporations in southeast. Despite
its best efforts during the years since ANCSA has past, Cape
Fox has been unable to overcome the disadvantage the law built
into its lands selection by the inequitable treatment. This
legislation will address Cape Fox's problem by providing three
inter-related remedies. In particular, the legislation will
allow Cape Fox and the Secretary of Agriculture to enter into
an equal value exchange of lands. This exchange will enhance
the economy for southeast and allow for reconsolidation of
forest holdings in the inlet area of Romili Island.
Additionally, provisions in the Cape Fox Land Entitlement
Act will allow the agency to consolidate its surface and
subsurface estate and greatly enhance its management
effectiveness of the fishery of the Tongass National Forest.
The final bill we will hear today is S. 1421, the Alaska
Native Allotment Subdivision Act. This act is the only answer
to resolving the question of whether Native landowners have the
authority to subdivide their own property. Individual Alaska
Native landowners cannot subdivide their land to transfer it
either by gift or by sale. There is no current authority that
allows them to dedicate rights-of-way across their land for
public access or for utility purposes. The lack of explicit
statutory authority calls into question the legal validity of
those lands that have been subdivided and lands that could
likely be subdivided in the future.
This legislation would provide the necessary authority to
the Department of the Interior and Native landowners to
dedicate their land for public purposes as they see fit.
However, the bill creates no obligation of Alaska Natives to do
anything with their allotment unless they elect to sell or
dispose of their lands.
By speeding up and simplifying the allotment subdivision
process, the Native landowner, the Federal, State, and local
governments also benefit. The Native landowner will not be
deprived of any of the protections of restricted land status.
This legislation will confirm the restrictive Native
landowner's right to act in his or her best interest. The issue
they face is the choice between being able to subdivide their
land, obtain a much greater total compensation for sales of
subdivided lots, or continue to be unable to subdivide. Their
only option will be to sell one large tract that will almost
always be a substantially total amount of compensation.
I believe this legislation is relatively non-controversial
and is beneficial to all affected parties and the general
public. The State of Alaska and local government have urged
such legislation and the Department of the Interior supports
it.
So with that general summary of the legislation that is
before us, I would like to turn to our witnesses. The first
panel consists of Mr. Rey, Mr. Loeffler, and Mr. Bisson.
Mr. Rey, if you would like to lead us off this morning, it
will be greatly appreciated. Welcome.
STATEMENT OF MARK REY, UNDER SECRETARY, NATURAL
RESOURCES AND ENVIRONMENT, DEPARTMENT OF AGRICULTURE
Mr. Rey. Thank you, Senator, and thank you for the
opportunity to appear before you here today. I'm here to
provide the Department of Agriculture's views on S. 1354, a
bill, as you described, to resolve certain conveyances and
provide for alternative land selections under the Alaska Native
Claims Settlement Act related to the Cape Fox Native
Corporation and Sealaska Corporation.
As introduced, the bill provides for an additional 99 acres
of Alaska Native Claims Settlement Act selection area for Cape
Fox and Sealaska Corporation at Clover Passage on Revillagigedo
Island. It also requires the Forest Service to offer, and if
the offer is accepted by Cape Fox, to complete a land exchange
with the Cape Fox and Sealaska Corporations.
Pursuant to the land exchanges provided for in sections 5
and 6 of the bill, Cape Fox Corporation would receive the
surface and subsurface of 2,663.9 acres of national forest
system land at the Jualin Mine site near Berners Bay, north of
Juneau. That is depicted in the light yellow area on the map
dated March 18, 2002, which is attached to my testimony and is
before you there on the posterboard.
Sealaska Corporation would receive the surface and
subsurface national forest system land to equalize values of
Sealaska subsurface lands and interests in land it conveys to
the U.S. Sealaska Corporation would select national forest
system lands of equal value from within a 9,329 acre pool of
national forest system lands at the Kensington Mine, also near
Berners Bay. This is in the darker yellow area on the map dated
April 2002 attached to my testimony and appearing before you.
The Forest Service would receive lands and interests in
lands of equal value from within a pool of approximately 2,900
acres, including a public trail easement, offered by Cape Fox
and Sealaska on Revillagigedo Island, which is identified on
the map dated March 15, 2002 attached to my testimony and
appearing before you on the poster board.
The Forest Service would also receive 2,506 acres of
Sealaska subsurface estate located at Upper Harris River and
Kitkun Bay on Prince of Wales Island; and 3,698 acres Sealaska
subsurface land interests remaining to be conveyed to Sealaska
pursuant to the Haida Land Exchange Act and the Sealaska/Forest
Service Split Estate Exchange Agreement of 1991. Cape Fox would
choose the land to be conveyed to the United States from the
2,900 acre pool in number one above.
The Forest Service has previously worked with you and your
predecessor's staff to clarify and improve the language when
these changes were under consideration in the 107th Congress.
The Department would support the enactment of S. 1354 with the
changes outlined in my statement for the record. Those changes
go to making sure that the estimate of market value of exchange
land, the Uniform Appraisal Standards of Federal Land
Acquisitions and the Uniform Standards of Professional
Appraisal Practices are use, and we also have some suggestions
for providing the secretary a little bit more time in making
the final determination after Sealaska and Cape Fox have made
their decisions.
With these minor changes and a few others outlined in my
statement for the record, the Department of Agriculture
supports the enactment of S. 1354. We believe there are
significant benefits to the government from the enactment,
including consolidation of public lands on the southern part of
the Tongass National Forest and elimination of split estate
ownership.
Thank you for the opportunity to testify. I'd be happy to
answer any questions.
[The prepared statement of Mr. Rey follows:]
Prepared Statement of Mark Rey, Under Secretary, Natural Resources and
Environment, Department of Agriculture
Mr. Chairman and members of the Subcommittee, thank you for the
opportunity to appear before you today. I am Mark Rey, Under Secretary
for the United States Department of Agriculture. I am here today to
provide the Department's views on S. 1354, a bill to resolve certain
conveyances and provide for alternative land selections under the
Alaska Native Claims Settlement Act related to Cape Fox Corporation and
Sealaska Corporation, and for other purposes.
S. 1354--CAPE FOX LAND ENTITLEMENT ADJUSTMENT ACT OF 2003
This bill, as introduced, provides for an additional 99 acres of
Alaska Native Claims Settlement Act (ANCSA) selection area for Cape Fox
and Sealaska Corporations at Clover Passage on Revillagigedo Island. It
also requires the Forest Service to offer and, if the offer is accepted
by Cape Fox, to complete a land exchanges with the Cape Fox and
Sealaska Corporations.
Pursuant to the land exchanges provided for in sections 5 and 6 of
the bill:
Cape Fox Corporation would receive the surface and
subsurface of 2,663.9 acres of national forest system (NFS)
lands at the Jualin Mine site near Berners Bay, north of
Juneau, which is the light yellow area on the map dated March
18, 2002, attached to my testimony.*
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* Attachments have been retained in subcommittee files.
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Sealaska Corporation would receive the surface and
subsurface of NFS lands to equalize values of Sealaska
subsurface lands and interests in land it conveys to the U.S.
Sealaska Corporation would select NFS lands of equal value from
within a 9,329-acre pool of NFS lands at the Kensington Mine,
also near Berners Bay. This is the yellow area on the map dated
April 2002, attached to my testimony.
The Forest Service would receive lands and interests in
lands of equal value from within: (1) a pool of approximately
2,900 acres, including a public trail easement, offered by Cape
Fox (surface) and Sealaska (subsurface) on Revillagigedo
Island, which is identified on the map dated March 15, 2002,
attached to my testimony; (2) 2,506 acres of Sealaska
subsurface estate, located at Upper Harris River and Kitkun
Bay, on Prince of Wales Island; and (3) 2,698 acres of Sealaska
subsurface land interests remaining to be conveyed to Sealaska
pursuant to the Haida Land Exchange Act and the Sealaska/Forest
Service Split Estate Exchange Agreement of 1991. Cape Fox would
choose the lands to be conveyed to the United States from the
2,900-acre pool in (1) above.
The Forest Service previously worked with Senator Murkowski's staff
to clarify and improve the language when these exchanges were under
consideration in the 107th Congress. The Department could support the
enactment of S. 1354 with the changes below:
1. We request that Sec. 5(d) be clarified to read ``. . . by Cape
Fox under subsection (c) are equal in market value to the lands
described in subsection (b) based on appraisal reports approved by the
Secretary and prepared in conformance with the Uniform Appraisal
Standards for Federal Land Acquisitions and the Uniform Standards of
Professional Appraisal Practice.'' Similarly, we request that Sec. 6(b)
be clarified to read ``. . . selected lands are equal in market value
to the lands described in subsection (c), and may adjust amount of
selected lands in order to reach agreement with Sealaska regarding
equal market value based on appraisal reports approved by the Secretary
and prepared in conformance with the Uniform Appraisal Standards for
Federal Land Acquisitions and the Uniform Standards of Professional
Appraisal Practice.''
2. We request that Sec. 7(a) be clarified to read ``. . . shall be
of equal market value.'' and ``. . . estimates of market value of
exchange lands with supporting information in conformance with the
Uniform Appraisal Standards for Federal Land Acquisitions and the
Uniform Standards of Professional Appraisal Practice.''
3. Sec. 5(f) gives the Secretary of Agriculture ninety days after
enactment to attempt to consummate an exchange agreement with Cape Fox.
During this ninety day period, Cape Fox (pursuant to Sec. 5(c)) has
sixty days to identify lands to be conveyed to the U.S., potentially
only leaving thirty days for the U.S. to complete an appraisal, obtain
title information, and complete the exchange process. Similarly, Sec.
6(d) only gives the Secretary of Agriculture ninety days after receipt
of selections by Sealaska to attempt to enter into an exchange
agreement with Sealaska. We request these time frames be extended.
4. A normal component of a land exchange includes a provision
requiring the exchanged lands to be subject to satisfactory
environmental site survey and remediation pursuant to the American
Society for Testing and Materials (ASTM) Standard Guide for
Environmental Site Assessment E 1903. We request this requirement be
added to Sec. 7(b).
CONCLUSION
With these minor changes, the Department of Agriculture supports
the enactment of S. 1354. We believe there are significant benefits to
the government from enactment, including consolidation of public lands
on the southern part of the Tongass and elimination of split estate
ownership. Thank you for the opportunity to present the views of the
Department of Agriculture. This concludes my testimony. I would be
happy to answer any questions that you may have.
Senator Murkowski. Thank you, Mr. Rey. I appreciate your
testimony on this legislation. Just for the interest of those
listening and observing, what we will do is hear from all three
of the panel. They have been reminded that their time is
limited to 5 minutes, and at the conclusion of this panel, I
will go ahead and ask my questions to all three of you. So with
that, we go to Mr. Henri Bisson, State director of Bureau of
Land Management.
Mr. Bisson.
STATEMENT OF HENRI BISSON, STATE DIRECTOR, BUREAU OF LAND
MANAGEMENT, DEPARTMENT OF THE INTERIOR
Mr. Bisson. Thank you, Senator. Senator Murkowski, I
appreciate the opportunity to appear before you this morning to
present the views of the Department of the Interior on S. 1466,
S. 1421 and S. 1354.
The Department of the Interior supports the intent of all
three of these bills. We would also like to continue to work
with the committee to make certain that technical amendments to
clarify and strengthen the bills occur, and in the interest of
time this morning, I'm going to summarize my written remarks
that have been submitted for the record.
Senator, as you know, the Bureau of Land Management in
Alaska manages the largest land conveyance program in the
United States. One that requires the survey and conveyance of
nearly 150 million acres of Alaska's 365 million acre land
base.
Consistent with the requirements of applicable Alaska land
transfer laws, including the Native Allotment Act of 1906, the
Alaska Native Claims Settlement Act and Alaska Statehood Act,
the BLM in Alaska has worked diligently for the past 30 years
to implement this massive program.
However, the pace of land conveyances has been slow for a
variety of reasons. The original framework contained in these
statutes and in the implementing regulations provided
appropriate direction and guidance for the BLM to begin these
land transfer efforts, but the current laws and regulations do
not provide the necessary tools for the BLM to complete these
transfers efficiently and promptly. The laws themselves have
been amended, superseded, and re-interpreted by judicial review
many, many times, and each time this has occurred, the BLM has
been required to re-assess, review, resort title claims to make
certain that our actions with respect to all land claims and
interests are appropriate, consistent with the interpretation
of the applicable laws, and legally defensible.
The BLM is responsible for adjudicating land claims,
conducting and finalizing Cadastral land surveys, and
transferring legal land title. This land transfer work in
Alaska is complicated both operationally, due to remote
locations, and administratively, because of complex case law
and processes for transferring lands from Federal ownership to
other ownerships.
Last fall, Secretary Norton, and BLM director Kathleen
Clark, along with other Department of the Interior and Bureau
officials, met with representatives of several Alaska Native
corporations, and during those meetings, urgent concerns were
expressed about the pace of legislatively-mandated land
transfers. We have also heard from both Senator Stevens and
yourself about concerns about the pace that this has taken
place.
We recognize these long-standing concerns and share an
interest in completing the land transfers in an expeditious
manner. The completion of all Alaska land entitlements and the
establishment of land ownership boundaries are absolutely
essential to the proper management of lands and resources in
Alaska. We have extensively analyzed the land transfer program
to try to streamline processes and expedite conveyances. And,
furthermore, in responding to a congressional directive this
year, and in an effort to further expedite the conveyances, we
have met with the staff from the Alaska congressional
delegation, with Native entities, with environmental groups,
with industry, and the State and other Federal agencies to
discuss innovative ideas to get feedback on the land transfer
process.
This bill was introduced as a legislative solution to begin
to resolve many of these issues. In our opinion, S. 1466 will
eliminate many of the delays that currently exist in the
adjudication and conveyance of Native allotments, State and
ANCSA entitlements. It also provides flexibility that we need
in negotiating final entitlements.
Senator Murkowski, the Department of the Interior supports
the intent of the bill, and we look forward to continuing work
with you and your staff on it. S. 1421 would authorize Native--
Alaska Native owners of restricted allotments, subject to the
approval of the Secretary of the Interior, to subdivide their
land in accordance with State and local laws governing
subdivision plats, and to execute certificates of ownership and
dedication with respect to these lands, and would confirm the
validity of past Secretary-approved dedications upon which many
concerned parties have relied.
We also support enactment of that legislation, and we have
provided a recommended modification in my written testimony to
that bill. S. 1354 extends benefits to Cape Fox that were not
available under the original terms of ANCSA. The Department has
carefully considered the merits of this proposal and agrees the
Cape Fox situation is sufficiently unique to warrant a
legislative remedy that is provided in S. 1354. We are
concerned about the conveyance deadline in the bill, and we
have recommended a modification to it that is described in my
written testimony.
In closing, I would like to reiterate that the Department
of the Interior supports the intent of all three bills
addressed at today's hearing. We look forward to working with
the committee on these bills, and I'd be happy to answer any
questions you many have.
[The prepared statement of Mr. Bisson follows:]
Prepared Statement of Henri Bisson, State Director,
Bureau of Land Management, Department of the Interior
Senator Murkowski, I appreciate the opportunity to appear before
you today to present the views of the Department of the Interior on S.
1466, the Alaska Land Transfer Acceleration Act of 2003; S. 1421, the
Alaska Native Allotment Subdivision Act; and S. 1354, the Cape Fox Land
Entitlement Act of 2003. The Department of the Interior supports the
intent all three of these bills. We would like to work with Committee
to make certain technical amendments designed to clarify and strengthen
the bills.
S. 1466, ALASKA LAND TRANSFER ACCELERATION ACT OF 2003
Background
The Bureau of Land Management (BLM) is the Department of the
Interior's designated land survey and title transfer agent. The BLM in
Alaska manages the largest land conveyance program in the United
States--one that requires the survey and conveyance of nearly 150
million acres of Alaska's 365 million-acre land base.
Consistent with the requirements of applicable Alaska land transfer
laws, including the Native Allotment Act of 1906, the Alaska Native
Claims Settlement Act (ANCSA), and the Alaska Statehood Act, for the
past 30 years, the BLM in Alaska has worked diligently to implement
this massive program. However, the pace of land conveyances has been
slow for a variety of reasons. The original framework contained in
these statutes and in the implementing regulations provided appropriate
direction and guidance for the BLM to begin these large land transfer
efforts, but current laws and regulations do not provide the necessary
tools for the BLM to complete the transfers efficiently and promptly.
The laws themselves have been amended, superceded, and re-interpreted
by judicial review many times. Each time this has occurred, the BLM has
been required to reassess, review, and re-sort land title claims to
make certain that the BLM's actions with respect to all land claims and
interests are appropriate, consistent with the interpretation of the
applicable laws, and legally defensible.
Last fall, Secretary Norton, Bureau of Land Management (BLM)
Director Clarke, along with other Departmental and Bureau officials,
met with representatives of several Alaska Native corporations. During
those meetings, Alaska Natives expressed urgent concerns about the pace
of the legislatively-mandated land transfers. The Alaska congressional
delegation and officials of the State of Alaska have raised similar
concerns and have expressed an interest in accelerating the land
conveyances so they are completed by 2009.
The Department of the Interior recognizes these long-standing
concerns and shares an interest in completing the land transfers in an
expeditious manner. The completion of all Alaska land entitlements and
the establishment of land ownership boundaries are essential to the
proper management of lands and resources in Alaska.
``Allotments'' Background--Native Allotment Act of 1906/Alaska
Native Veterans Allotment Act of 1998
In order to fully understand the status of Alaska land transfers,
it is necessary to understand the interconnected nature of the
underlying transfer legislation, the complexity and range of issues
involved in the BLM's Alaska land conveyance program, and related
terminology.
Land ``allotments'' are land conveyances from the Federal
Government to qualified individual applicants as authorized by law. The
Native Allotment Act of 1906 authorized individual Indians, Aleuts, and
Eskimos in Alaska to acquire an allotment consisting of one or more
parcels of land not to exceed a total of 160 acres. Alaska Natives
filed approximately 10,000 allotment applications for almost 16,000
parcels of land statewide under this Act before its repeal in 1971.
The Alaska Native Veterans Allotment Act of 1998 (Veterans
Allotment Act) provided certain Alaska Native Vietnam-era veterans, who
missed applying for an allotment due to military service, the
opportunity to apply under the terms of the 1906 Native Allotment Act
as it existed before its repeal. There were 743 applications filed for
approximately 992 parcels under the Veterans Allotment Act, before the
application deadline closed on January 31, 2002.
The BLM's total allotment workload remaining to be processed
consists of 3,256 parcels--including 2,491 parcels filed under the 1906
Act and 765 parcels filed under the 1998 Act. Each of these individual
remaining parcels must be separately adjudicated based on its unique
facts and, if valid, surveyed and conveyed. Furthermore, of these
remaining 3,256 parcels, approximately 1,100 parcels are on lands no
longer owned by the United States. On these 1,100 parcels, the BLM is
required by law to investigate and attempt to recover title to each
parcel in order to convey the lands to the individual Native applicant.
``Entitlements'' Background--Pre-Statehood Grants/Alaska Statehood Act
of 1958
Land acreage ``entitlements'' are specified amounts of land that
are designated by law for conveyance to the State of Alaska or to
qualified Native entities. In order to receive its land acreage
entitlement, a qualified entity or the State must file land
``selection'' applications that identify the specific lands to be
conveyed to meet the authorized entitlement.
Pre-Statehood grants and the Alaska Statehood Act of 1958 entitle
the State of Alaska to 104.5 million acres. Of this total acreage to be
conveyed, the BLM has taken final adjudicative action on, surveyed, and
patented over 41 million acres. Final adjudication and title transfer
have taken place on an additional 48 million acres, but final survey
and patent work remains to be completed on this acreage. The remaining
15.5 million acres to be conveyed have not been prioritized for
conveyance by the State, and thus conveyance work on this acreage has
not yet begun. Over 4,400 applications must still be addressed and
approximately 3,000 townships (an area roughly the size of the State of
Colorado) must be surveyed before the State's entitlements can be
completed by issuance of final patents.
``Entitlements'' Background--Alaska Native Claims Settlement Act of
1971 (ANCSA)
The Alaska Native Claims Settlement Act of 1971 (ANCSA) and its
amendments were enacted to settle aboriginal land claims in Alaska.
ANCSA established 12 regional corporations and over 200 village
corporations to receive approximately 45.6 million acres of land. This
is the largest aboriginal land claim settlement in the history of the
United States. Of these 45.6 million acres to be conveyed under ANCSA,
the BLM has issued final patents on over 18 million acres. Final
adjudication and title transfer have taken place on an additional 19
million acres, but final survey and patent work remains to be completed
on this acreage. The BLM is unable to adjudicate, survey and convey the
remaining 8.6 million acres because many Native corporations have
significantly more acres selected than remain in their entitlements,
and the corporations must identify which selections will be used to
meet their remaining entitlements.
Impediments to Completing Conveyances (Allotments & Entitlements)
The BLM is responsible for adjudicating land claims, conducting and
finalizing Cadastral land surveys, and transferring legal land title.
The land transfer work is complicated, both operationally, due to
remote locations and extreme weather conditions, and administratively,
due to complex case law and processes for transferring lands from
Federal ownership to other ownerships.
The vast majority of the 3,256 remaining Native allotment claims
must be finalized before the ANCSA corporations and the State can
receive their full entitlements authorized under law. This is primarily
because most lands claimed as allotments are also selected by at least
one ANCSA corporation and may also be selected (or ``top-filed'') by
the State of Alaska. In order to determine whether these lands are
available for conveyance as part of the State's or an ANCSA
corporation's entitlement, and to avoid creating isolated tracts of
Federal land, there must first be final resolution of the allotment
claims.
The adjudication of the 3,256 Native allotments is arduous and
time-consuming for a variety of reasons, including evolving case law
and complex land status. In addition, statutory deadlines imposed in
subsequently enacted legislation also can have the effect of delaying
work on existing priorities and previously-made land transfer
commitments. The filing of reconstructed applications, requests for
reinstatement of closed cases, the reopening of closed cases, changes
in land description, and the recovery of title also cause lengthy
delays in completion of the Native allotment program. Finally, delays
in the scheduling of due process hearings, the need to await the
outcome of prolonged administrative appeal procedures, and litigation
in the Federal court system can add years to the process. All of these
issues unduly complicate completion of the remaining 3,256 Native
allotments claims.
The processing of ANCSA entitlements also can be delayed for
reasons other than Native allotment applications. Alaska Native
Corporations are State-chartered corporations. They are valid legal
entities only when they comply with the laws of the State of Alaska.
Some Native corporations have been dissolved for failure to comply with
State law. New conveyances cannot be made to a corporation if it ceases
to exist and is dissolved. Additionally, while many Native corporations
have applied for significant amounts of land in excess of their
official entitlement acreage, there are also instances where village
corporations have not made adequate selections to meet their
entitlements. Section 1410 of the Alaska National Interest Lands
Conservation Act (ANILCA) of 1980 provides a means by which additional
lands can be made available to solve the under-selection problem, but
the Section 1410 withdrawal and selection process can be cumbersome and
time-consuming.
Completion of State entitlements is complicated by ANCSA over-
selections and Federal mining claims. Unrestricted over-selections by
ANCSA corporations mean that the State will have to wait for ANCSA
corporations to receive final entitlement acreage before the State
knows what lands will be available for conveyance to it. Lands
encumbered by properly filed and maintained Federal mining claims also
complicate the process and are not available for final conveyance to
the State. The surrounding land can be transferred to the State, but
excluded mining claims then constitute individual, isolated enclaves of
Federal lands which are difficult to manage and, under current law,
must be segregated by costly exclusion surveys before issuance of a
patent to the State.
Expediting the Alaska Land Transfer Program
Over the years, the BLM has extensively analyzed the land transfer
program in order to streamline processes and expedite conveyances. In
1999, the BLM, working in partnership with its customers and
stakeholders (including Native entities and the State of Alaska),
developed a strategic plan that would result in completion of the
remaining land transfer work by 2020. The BLM is implementing this
strategic plan, and, under current law, the Bureau anticipates
completion of the land conveyances by 2020.
Congress, through the Conference Report on the Department of the
Interior's FY 2003 appropriation (House Report 108-10, February 12,
2003), directed the BLM to develop a plan to complete the Alaska land
transfer program by 2009. In order to comply with this direction, BLM
officials have met with staff from the Alaska Congressional delegation,
Native entities, environmental groups, industry, the State, and other
bureaus and offices within the Department, as well as the Forest
Service, to discuss innovative ideas and to get feedback on the land
transfer process. S. 1466 was introduced as a legislative solution on
July 25, 2003, to eliminate the unintended delays in the conveyance
process.
In BLM's opinion, S. 1466 will eliminate many of the delays that
currently exist in the adjudication and conveyance of Native
allotments, State and ANCSA entitlements. It also provides flexibility
in negotiating final entitlements. The following summarizes some of the
major provisions of the bill.
Title I--State Conveyances
S. 1466 enables the BLM to accelerate conveyances to the State of
Alaska, reduces costs associated with processing State conveyances, and
simplifies the BLM's land management responsibilities by addressing
statutory and regulatory minimum acreage requirements. The bill allows
the State to obtain title to improved properties of significant value
to local communities in which the United States retained a reversionary
interest. It also allows the State to receive title to areas that are
currently withdrawn from State selection due to their identification of
having hydroelectric potential, while still maintaining the Federal
Government's right of re-entry under the Federal Power Act.
The bill also facilitates completion of the University of Alaska's
456-acre remaining entitlement under current law (the Act of January
21, 1929) by increasing the pool of land from which the University can
make its final selections. The 1929 Act limited University selections
to lands already surveyed. S. 1466 allows the University to use its
remaining entitlement to select the reversionary interests in lands it
owns and, with the consent of the current landowner, the reversionary
interest in lands owned by others under the Recreation and Public
Purposes Act (R&PP).
When lands were conveyed to various entities under the R&PP Act,
the Federal government retained minerals as well a reversionary
interest in the property. These lands were applied for under the R&PP
Act because of their suitability for development purposes or community
use. The BLM must continually monitor these small properties to assure
that the owners are in compliance with the original terms of the
conveyance. If there is a violation of the original use, the BLM must
take the necessary steps to assert that an event triggering reversion
has occurred and then plan for the subsequent use or disposition of the
property when it comes back into Federal ownership. As these lands have
already been surveyed, one logical use for the reverted property would
be to fulfill the University's 1929 entitlement. By allowing the
University to select reversionary interests, the BLM is freed from
current monitoring costs and responsibilities. Under this proposal, the
University will be required to expend one acre of remaining entitlement
for each acre of reversionary interest received. Another option
extended to the University under this bill is the ability to select
unsurveyed, public domain lands with the concurrence of the Secretary.
These changes will substantially increase the pool of lands from which
the University has to choose, are consistent with the intent of the
1929 Act to provide lands which are capable of generating revenues, and
are expected to lead to final resolution of this seven-decade old
entitlement.
Title II--ANCSA Provisions
S. 1466 expedites the land transfer process to ANCSA corporations
by giving the BLM the tools to complete ANCSA entitlements. Currently,
when an Alaska Native corporation's existence has been terminated under
State law, all BLM land transactions with the corporation are
suspended. Title II provides a mechanism for BLM to transfer lands by
giving terminated corporations two years from the date of enactment to
become reestablished. If this does not occur, then the bill directs the
BLM to transfer the remaining entitlement to the appropriate Regional
Corporation. The bill also establishes deadlines by which Regional
corporations must complete assignments of acreages to villages (so-
called ``12(b) lands''). The legislation also allows village
entitlements established by ANCSA (so-called ``12(a) lands'') and
acreage assigned by Regional Corporations to villages to be combined,
which will expedite adjudication, survey, and patent of all village
lands. In addition, the bill permits the BLM to ``round up'' final
entitlements to encompass the last whole sections. Thus, under the
bill, it will no longer be necessary for BLM to survey down to the last
acre, which often requires more than one field survey season to
accomplish.
The bill also accelerates the completion of ANCSA conveyances by
amending ANCSA (section 14(h)) to allow for the completion of the
conveyance of certain cemetery and historical sites, as well as other
critical conveyances. Under ANCSA, regional corporations will not know
their final acreage entitlements until the BLM has completed the
adjudication and survey of nearly 1,800 individual cemetery and
historical sites. S. 1466 provides options for the rapid settlement of
these regional entitlements, an issue of critical importance to
Regional corporations. In establishing an expedited process, we would
like to work with the Committee on amending Section 14(h) to ensure
that the bill addresses concerns of Alaska Natives regarding potential
location errors, waiver of regulations, and related matters.
Title III--Native Allotments
Finalizing Native allotment applications is essential to the
completion of the entire land transfer program. Numerous requests for
reinstatement of closed Native allotment applications; allegations of
lost applications; and amendments of existing applications to change
land descriptions have profound impacts on all land conveyances, not
just the ongoing adjudication of an individual Native allotment
application.
S. 1466 finalizes the list of pending Native allotments and the
location of those allotments. It does so by establishing a final
deadline after which no applications will be reinstated or
reconstructed and no closed applications will be reopened. It also
prohibits applicants and heirs from initiating any further amendments,
thus fixing the location of the claim. Without some means of finalizing
the list of allotment applications and locations, it will be extremely
difficult for the BLM to complete the land transfers, the State and
ANCSA landowners will have no certainty that their title is secure, and
selection patterns surrounding allotment applications will be difficult
to finalize and patent.
The bill also addresses instances where allotment claims are for
lands no longer in Federal ownership. S. 1466 expedites recovery of
title from both the State and ANCSA corporations by streamlining the
current procedures. It permits ANCSA corporations to negotiate with the
allotment applicant in order to provide substitute lands to the
claimant for lands the corporation would prefer not to reconvey. The
State has had this authority for over 10 years (P.L. 102-415, Oct. 14,
1992). Under the bill, a deed also can be tendered to the United States
for reconveyance to an applicant, without requiring the BLM to do
additional field examinations to meet Department of Justice rules for
land acquisition.
Title IV--Deadlines
In order to complete the land transfers by 2009, the bill
establishes sequential deadlines for the prioritizing of selections.
The bill staggers the deadlines and allows six months between them for
Native Village Corporations, Native Regional Corporations, and, the
State of Alaska, in that order. These six-month periods allow the
entities that are next in line to know the final boundaries of the
preceding entity.
Title V--Hearings & Appeals
S. 1466 directs the Secretary to establish a hearings and appeals
process to issue final Department of the Interior decisions for all
disputed land transfer decisions issued in the State, and authorizes
the hiring of new staff to facilitate this work. While the Department
is already acting to expedite decisions on all business before the
Office of Hearings and Appeals, and in particular to quickly address
older cases, a process dedicated to resolving Alaska land transfer
disputes will facilitate the conduct of hearings and the issuance of
decisions.
Title VI--Report to Congress
Finally, S. 1466 requires the BLM to report to Congress on the
status of conveyances and recommendations for completing the
conveyances.
S.1421, ALASKA NATIVE ALLOTMENT SUBDIVISION ACT
Background
The purpose of the Federal statutory restrictions placed on Alaska
Native allotments and restricted Native townsite lots is to protect
Alaska Native owners against loss of their lands by taxation, and to
provide oversight of any alienation of such lands for the owners'
protection. Generally, these lands are administered according to
Federal law, particularly as it may relate to the issuance of rights-
of-way, easements for utilities, and other public purposes. An
unintended consequence of these protections is that when an owner of
restricted land attempts to subdivide and sell his property or dedicate
certain portions for easements and other public purposes, all in
compliance with state or local subdivision platting requirements, it is
not clear whether those dedications constitute valid acts under Federal
law. This uncertainty has worked to the disadvantage of owners of
restricted land who wish to subdivide and develop their property.
The economic advantages of subdivision in compliance with State and
local law have led a number of Alaska Native allotment owners over the
past two decades to survey their property for subdivision plats, and to
submit the surveys to local authorities for approval. These plats
typically contained Certificates of Ownership and Dedication, whereby
the land owners purported to dedicate to the public land for roads,
utility easements, or other public uses. Platting authorities, the
public, individual subdivision lot buyers, and the restricted land
owners relied on these dedications and the presumption that they were
binding and enforceable.
However, in late 2000, the Department of the Interior's Office of
the Solicitor recognized that this presumption was not clearly
established in law. In response, the Bureau of Indian Affairs and
realty service providers authorized under the Indian Self-Determination
Act sought to overcome the doubts raised about the validity of past
dedications. Their solution relied on the Secretary of the Interior's
authority under Federal law to grant rights-of-way and easements
identical to those interests dedicated on the face of existing
subdivision plats.
This approach, however, has proven to be unsatisfactory. It creates
substantial extra work for government and realty service providers.
More importantly, the State of Alaska and some affected Boroughs are
unwilling to apply for or accept title to such rights-of-way on behalf
of the public. These units of government understandably prefer that
public rights be established by dedication, rather than direct title
transfers, which might saddle the local government with maintenance or
tort liability. Without the participation of platting authorities and
governments, it is difficult to resolve uncertainties as to the
validity of dedications on previously filed and approved subdivision
plats. Moreover, it is impossible for Native owners of restricted lands
who, in the future, may wish to subdivide their land in accordance with
State or local platting requirements, to do so without first
terminating the restricted status of their lands.
S. 1421 would authorize Alaska Native owners of restricted
allotments, subject to the approval of the Secretary of the Interior,
to subdivide their land in accordance with State and local laws
governing subdivision plats, and to execute certificates of ownership
and dedication with respect to these lands. The bill also would confirm
the validity of past dedications that were approved by the Secretary.
Ratifying past dedications will benefit all concerned parties,
including the buyers and sellers of lots in affected subdivisions, the
State and local governments, the Bureau of Indian Affairs, realty
service providers under the Indian Self-Determination Act, and the
general public. All of these entities have in the past relied upon the
legal validity of dedications to the public which appeared on the face
of existing plats.
Enactment of S. 1421 would remove an obstacle to pending lot sales
and re-sales in existing subdivisions. It would pave the way for other
Native owners of restricted lands to create new subdivisions in
compliance with State or local platting requirements without forcing
them to choose between the financial benefits of compliance with State
law and the retention of protections against taxation and creditor's
claims inherent in the restricted status of their lands. This feature
is clarified by Section 5(b) of S. 1421, which provides that Federal
restrictions against taxation and alienation are only lost by
compliance with State or local platting requirements as to those
specific interests expressly dedicated in the Certificate of Ownership
and Dedication.
The Department recommends amending Section 4(a)(1) of the bill to
read, ``subdivide the restricted land for rights-of-way for public
access, easements for utility installation, use and maintenance and for
other public purposes, in accordance with the laws of the--'' to make
this section consistent with the findings in Section 2(a)(b)(c) of the
bill. Additionally, the Department recommends adding a new section to
the bill authorizing the promulgation of regulations to clarify how S.
1421 would be implemented.
S. 1354, CAPE FOX LAND ENTITLEMENT ACT OF 2003
Background
Cape Fox Corporation (Cape Fox) is an Alaska Native Village
Corporation organized pursuant to ANCSA for the Native Village of
Saxman, which is located near Ketchikan. Like the other nine southeast
villages recognized for benefits under section 16 of ANCSA, Cape Fox
received an entitlement of 23,040 acres. All other ANCSA Village
Corporations were restricted from making selections within two miles of
the boundary of home rule cities. Cape Fox, however, was uniquely
affected by the original terms of ANCSA as it was restricted from
making selections within six miles of the boundary of the city of
Ketchikan. As a result of the six-mile restriction, the only land
within Cape Fox's core township available for conveyance is a 160-acre
parcel which the corporation does not want. Under current law, the BLM
must transfer this parcel to Cape Fox and charge the acreage to the
corporation's ANCSA entitlement.
The requirement for village corporations to take title to all
available land within their core township is a basic component of
ANCSA, applicable to all village corporations. Another basic component
of the original settlement is that conveyances to village corporations
will be restricted to lands withdrawn for that purpose under the
original terms of ANCSA.
S. 1354 waives an existing statutory requirement that would compel
Cape Fox to use a portion of its entitlement under ANCSA for a remote
160-acre mountainous parcel that is of no economic value to the
corporation. The bill also directs the BLM to convey to Cape Fox, the
surface estate to a 99-acre tract in the Tongass National Forest that
was unavailable to the corporation under the original terms of ANCSA;
the subsurface estate of this tract is to be transferred to Sealaska
Corporation.
Because S. 1354 extends benefits to Cape Fox that were not
available under the original terms of ANCSA, the Department has
carefully considered the merits of this proposal and agrees that the
Cape Fox situation is sufficiently unique to warrant the legislative
remedy that is provided in S. 1354. However, the Department is
concerned about the conveyance deadline in Sec. 4(c) of the bill. If
Cape Fox decides to accept title to the lands offered, the BLM must
issue conveyance documents within six months of receiving the
corporation's selection. Current regulatory requirements for ANCSA
conveyances take longer than the six months--typically closer to 12
months--and must include identification of easements to be reserved,
issuance of an appealable decision, and public notice of that decision.
Unless the legislation specifies otherwise, or the ANCSA conveyance
process is changed before then, the 99-acre tract must be conveyed
under existing ANCSA regulations. The six month timeframe also could be
unnecessarily disruptive to BLM conveyance transactions that are in
progress.
The Department of the Interior recommends that Sec. 4(c) of the
bill be modified to read as follows: ``TIMING--The Secretary of the
Interior shall complete the interim conveyances to Cape Fox and
Sealaska under this section as soon as practicable after the Secretary
of the Interior receives notice of the Cape Fox selection under
subsection (a).'' The Department understands the economic importance of
this conveyance to Cape Fox and will transfer title as quickly as
possible in concert with other existing land transfer plans and
commitments.
Adjustment of Cape Fox's selections and conveyances of land under
ANCSA requires adjustment of Sealaska Corporation's (Sealaska)
selections and conveyances to avoid the creation of an additional split
estate between National Forest System surface lands and Sealaska
subsurface lands. Since this adjustment concerns lands administered by
the U.S. Department of Agriculture, the Department of the Interior
defers to the Secretary of Agriculture on a position on this aspect of
S. 1354.
CONCLUSION
In closing, I would like to reiterate the Department's support for
the intent of all three of the bills addressed at today's hearing. If
enacted, S. 1466 will go a long way in expediting land transfers and
promoting the proper management of all lands and resources in Alaska;
S. 1421 will allow Native Alaskans to subdivide their restricted
allotment lands with the approval of the Secretary; and S. 1354
addresses circumstances that are unique to Cape Fox and Sealaska. We
look forward to working with the Committee on these bills. I will be
happy to answer any questions you may have.
Senator Murkowski. Thank you, Mr. Bisson, and the next
person on the first panel is Mr. Bob Loeffler, director of the
Division of Mining, Land and Water.
Mr. Loeffler.
STATEMENT OF BOB LOEFFLER, DIRECTOR, DIVISION OF MINING, LAND
AND WATER, ALASKA DEPARTMENT OF NATURAL RESOURCES
Mr. Loeffler. Good morning, Senator Murkowski. On behalf of
the State of Alaska, I would like to thank you and the
subcommittee for holding this hearing in Anchorage.
My name is Bob Loeffler. I'm the director of Division of
Mining, Land, and Water within the Department of Natural
Resources within the State of Alaska. The Alaska Department of
Natural Resources manages the land owned by the State of
Alaska. On behalf of the State, I offer the following comments
in support of all three bills before the subcommittee here
today.
I would like to begin with S. 1466, Alaska Land Transfer
Act. With appropriate funding, it will speed up land transfers
to individual Native allottees, Native corporations, and the
State of Alaska, and in this case, provided a tremendous
opportunity for Alaska and Alaskans.
I would like to take this opportunity to describe the
problem this bill solves and why it is important for Alaskans.
During the statehood debate almost 40 years ago, Alaska was
given a large land entitlement, because it was through the
ownership and development of those lands that the new State
would gain the revenue needed to sustain itself as a State.
This far-sighted prediction has in fact proven right.
In Alaska, unlike many other States, it is the State and
Native land that provides most of the development and revenues
for administration of the State and for the jobs and income for
Alaskans. Unfortunately, another statehood era prediction has
also become true. During the statehood debate, then Senator
Robertson of Virginia called these lands the promised land of
Alaska. And, 44 years later, the land base remains, in part, a
promise.
Let me explain. As you summarized earlier, we have yet to
receive our full entitlement. The land grant to the State of
Alaska provided for the eventual transfer of 105 million acres
to the State. To date, we received tentative approval of 90
million acres, about 45 of which have been surveyed and
patented. These lands have provided Alaska with land for the
largest State park system in the Nation, provided us with rich
oil fields of the North Slope, which have produced billions of
dollars to the State treasury and individual Alaskans through
the permanent fund, and have enabled the State to transfer
hundreds of thousands of acres into private ownership through
State land sale programs and through municipal entitlements.
The remaining 15 million acres to be transferred will add
additional base for the State's wealth and prosperity, and
survey of the remaining 60 million acres will better allow the
State to use and develop its resources.
However, this bill benefits not just the State, but others.
Alaskans, including individual Native allottees, Native
corporations and citizens have waited too long for these land
transfers to be completed. The deadline for filing Native
allotments ended 32 years ago. Yet thousands of allottees still
wait their approval. Similarly, 32 years after the passage of
the Native Claim Settlement Act, the Native corporation still
await transfer of almost a quarter of their entitlement.
The remaining entitlement for all this and the lack of
conveyance puts a significant impediment to the use and
development of these lands. Clearly, allottees cannot use land
they don't own. In addition, the entitlement remaining for the
State and Native corporations has an important chilling effect
on the development of some areas of the State. Secure land
title is a fundamental prerequisite for development, and
confusion about the eventual owner puts any significant
exploration or investment on hold until ownership is
established.
Resolving these entitlements will make lands available for
individual Alaskans for their use and enjoyment, and to the
corporations and the State to encourage the use and development
of Alaska's lands. This promise, our promised land, if you
will, is a promise that unfortunately we believe the present
system cannot keep. This legislation has the goal of completing
these transfers by the 50th anniversary of the State, but those
who have worked in State government who watched this conveyance
process know the current system will never resolve the
remaining entitlements, or at least not within our lifetime or
the lifetime of our children.
I say this not to disparage the good work of BLM employees,
or by Department of the Interior. Rather, interactions of
complicated entitlements of allottees, ANCSA corporations and
the State, with the lingering, outdated public land orders,
combined with insufficient funding do not allow BLM and the
State to take a comprehensive look at any area. And as a
result, this has resulted in a system where we cannot untangle
with complex web in any timely or reasonable fashion.
Let me explain, because I believe this to be an important
point. Native corporations cannot finalized their conveyance
priorities until they know what they are able to receive; that
is, until the region's Native allotment program is finished.
The State's entitlement cannot be fulfilled until ANCSA
entitlements are finished. All these are complicated by
lingering and outdated public land orders. The current system
and funding level does not allow BLM to comprehensively address
the problems in any one area. This complexity requires
different thinking, different ways of doing business, and
additional funding to finish the entitlements.
There is one additional provision that I would like to call
your attention. Section 209 provides the Secretary of the
Interior specific authority to modify the land orders. The
State supports this provision. Most of the withdrawals would be
affected by this provision were established in the 1970's, so
the Federal land could be studied for various conservation and
public purposes. When Congress enacted ANILCA in 1980, it
resolved the issue what Federal lands would be retained for
these purposes. Yet nearly a quarter of a century later, most
of the withdrawals remain and hinder the use and transfer of
much of BLM land in Alaska. We believe that the way the bill
propose to lift these would provide assurances the conveyances
will be lifted with appropriate environmental safeguards.
One key element of this legislation not before the
committee today is the funding to accomplish this accelerated
land program. Without increased funding, including funding to
BLM and State ANCSA corporations, the program will fall short
of this objectives of this bill. I do note, however, providing
the funding needed for a concentrated program is less than will
be received without this bill and without a concentrated effort
to finalize conveyances by 2009. It takes significantly less
funding to concentrate and finish the conveyances with this
deadline with this bill than it does to string along the
conveyances for decades.
So with that, we wholeheartedly support this bill. And I
would like to take the opportunity to quickly reference the
other two bills under consideration.
Senator Murkowski. Mr. Loeffler, you have exceeded your 5
minutes. I don't want to short change the----
Mr. Loeffler. I believe my testimony is in the record. I
would just note that we do support the other two bills. I'm
happy to answer any questions you may have.
[The prepared statement of Mr. Loeffler follows:]
Prepared Statement of Bob Loeffler, Director, Division of Mining,
Land and Water, Alaska Department of Natural Resources
Good morning, Senator Murkowski. On behalf of the State of Alaska,
I thank you and the Subcommittee for holding this hearing in Anchorage.
My name is Bob Loeffler. I am the Director of the Division of Mining,
Land and Water within the Alaska Department of Natural Resources. The
Alaska Department of Natural Resources manages the land owned by the
State of Alaska.
On behalf of the State of Alaska, I offer the following comments in
support of all three bills before the Subcommittee this morning: S.
1421, the Alaska Native Allotment Subdivision Act; S. 1354, the Cape
Fox Land Entitlement Act; and S. 1466, the Alaska Land Transfer
Acceleration Act.
s. 1466, the alaska land transfer acceleration act
I would like to begin with S. 1466, the Alaska Land Transfer
Acceleration Act. With appropriate funding, it will speed up land
transfers to individual Alaska Native Allottees, to Alaska Native
Corporations, and to the State of Alaska, and in this way provide a
tremendous opportunity for Alaska. I would like to take this
opportunity to describe the problem this bill helps solve, and why it
is important to Alaska.
The Promised Land
During debate about Alaska's statehood, Alaska was given a large
land entitlement, because it was through the ownership and development
of those lands that the new state would gain the revenues needed to
sustain itself as a state. That far-sighted prediction was proved
right. In Alaska, unlike many other states, it is the state and Native
land that provides the development and revenues for administration of
Alaska, and for the jobs and income for Alaskans.
Unfortunately, another statehood-era prediction has also come true.
During the statehood debate, then-Senator Robertson of Virginia called
these lands the ``promised land.'' And, 44 years later, the land base
remains, in part, a promise. Let me explain.
A Promise Yet to Keep
The land granted to the state through the Statehood Act and other
federal laws will result in the eventual transfer of over 105 million
acres to the state. To date, 90 million acres have been transferred,
about 45 million acres surveyed and patented. These lands have provided
Alaskans with land for the largest state park system in the Nation,
provide us with the rich oil fields of the North Slope that have
brought billions of dollars into the state treasury and individual
Alaskans through the Permanent Fund, and have enabled the state to
transfer hundreds of thousands of acres into private ownership through
state land sale programs. The remaining 15 million acres to be
transferred will further add to the state's wealth and prosperity, and
survey of the 60 million acres will better allow the state to use and
develop its land and resources.
Alaskans including individual Native allottees, Native Corporations
and the citizens of the State have waited too long for these land
transfers to be completed. For example, the deadline for filing most
Native Allotments was 32 years ago, in 1971, yet thousands of allottees
still are waiting for final approval of their Allotments. Similarly, 32
years after the passage of the Alaska Native Claims Settlement Act,
Native Corporations still await transfer of almost 10 million acres,
and survey and patent to many million more acres. Finally, the state
was promised over 105 million acres at Statehood in 1959, yet we still
await the transfer of 15 million acres and the survey and patent of
nearly 60 million acres.
This remaining entitlement to all of these groups puts a
significant impediment to the use and development of the lands.
Clearly, allottees cannot use land they do not yet own. In addition,
the entitlement remaining for the State and Native Corporations has an
important chilling effect on development in some areas of the state.
Secure land title is a fundamental prerequisite to development.
Confusion about the eventual owner puts any significant exploration or
investment on hold until the ownership is established. There are areas
of the state where exploration or development--with its benefits of
revenue to the state, and jobs and income for our citizens--awaits
resolution of ownership. In some cases, even land ownership questions
involving a small portion of an area can cause a delay on use of
neighboring lands. In this way, the remaining entitlement has an effect
that is disproportionably larger than the remaining acreage.
Resolving these entitlements will make land available to individual
Alaskans for their personal use and enjoyment, and to the Corporations
and the State to encourage the use and development of Alaska's lands.
A Promise That the Present System Cannot Keep
This legislation has the goal of largely completing these land
transfers by 2009, the fiftieth anniversary of needed for a
concentrated program is less than that required without the bill and
without a concentrated effort to finalize conveyances by 2009. That is,
it takes significant less funding to concentrate and finish the
conveyances by 2009 than it does to string along small conveyances for
decades. This latter method--which we employ today--inevitably requires
BLM and state staff to continually revisit the same area of the state,
and to continually re-adjudicate the same areas. It is expensive and
slow. Implementing this program will cost additional money in the short
run, but save money in the long run. We urge the Committee and the
Senate to provide full funding for this program.
A Final Note
S. 1466 is a long and complicated bill. It is complicated because
the land conveyance process is inherently complicated. We expect that
as others review the bill, they may find problems or opportunities not
addressed. We look forward to working with the committee to address
these issues.
I would like to turn my attention to the remaining two bills before
the subcommittee today.
S. 1354, THE CAPE FOX LAND ENTITLEMENT ACT
The state wholeheartily supports S. 1354, the Cape Fox Land
Entitlement Act. Because of the rules of the Alaska Native Claims
Settlement Act and the unique location of the Cape Fox Corporation's
original land grants near Ketchikan, Cape Fox was denied the ability to
acquire the quality lands as was envisioned under ANCSA. This
legislation would enable the Cape Fox Corporation, the Sealaska
Regional Corporation, and the U.S. Forest Service to pursue land
exchanges that would resolve this inequity and make land available for
use and development. The exchange will benefit the development of the
Kensington mine project.
In closing, I again wish to express that State of Alaska's support
for the legislation under consideration by the Subcommittee. Thank you
coming to Alaska and providing Alaskans the opportunity to speak to you
today.
Senator Murkowski. We have included all the comments and
written testimony in the record. I'm sorry to cut you off, but
I do want to make sure we have ample time for hearing people
who will testify.
I do have some questions for the panel. Beginning with you
first, Mr. Rey, since you started off. You mentioned the
valuation process. This has been an issue that has generated
some discussion, certainly. What kind of valuation process will
the Forest Service use to ensure that the exchanged lands are
of equal value as required in our legislation?
Mr. Rey. As drafted, the legislation provides that that
determination of equal value be made by the Secretary of
Agriculture. At the same time, Cape Fox and Sealaska
Corporation will have the opportunity to present estimates of
value and supporting information to the Secretary. And as I
indicated, if you accept our suggestion, we will use standard
appraisal practices and mechanisms that we typically include in
all land exchanges.
If the pool of non-Federal lands available in S. 1354 is
not sufficient to equalize values of the better lands selected
by Cape Fox Corporation, Cape Fox and the secretary will
mutually identify additional Cape Fox lands to equalize value.
So I think the process will be mutual in the sense that
both sides of the exchange will have to agree on evaluations
and will have to agree that they are fair market values that
are being applied.
Senator Murkowski. It's also my understanding that the
lands that are being exchanged by the Forest Service are, I
guess, heavily saddled by Federal mining claims. How will this
affect the Forest Service management?
Mr. Rey. One of the benefits of the exchange for the Forest
Service is that we're simplifying our management regime in two
ways. The one you mentioned is that many of the lands that will
be acquired by either Sealaska or Cape Fox have mining patents
on them. So it will no longer be necessary for us to facilitate
these patents or arrange our management regimes around making
sure that we recognize those patents. That will be for the
patentholders and the Cape Fox Corporation or Sealaska
Corporation to work out.
The second area that simplifies our management is once of
the principle attractions to the exchange to the Federal
Government is that we will resolve some split estate issues
that currently burden our management of lands where we own the
surface and Sealaska owns the subsurface.
Senator Murkowski. Can you go a little bit more into detail
on the split estate problems? What kind of specific problems
are we causing with the present structure and situation?
Mr. Rey. Where there are split estate issues, we always
have the question of whether there is some potentially
locatable mineral development or other subsurface resource that
the owner of the subsurface estate wishes to develop, and if
there is that potential, we have to accommodate it and provide
access, reasonable access, to that development. Where we can
unify our estate, then we're no longer burdened with trying to
do that, and we can manage our lands much more freely than
would otherwise be the case.
Senator Murkowski. You'd mentioned in your testimony some
significant benefits to the Government, and I'm assuming that
this is what you're referring to?
Mr. Rey. That is correct.
Senator Murkowski. Would you just elaborate a little bit
more on that?
Mr. Rey. The benefit to the Federal Government is it
simplifies our management regime considerably and allows us to
block up ownership in areas where we will own both the surface
and the subsurface resources. The benefit to Cape Fox is to get
to finalize its allotment, and the benefit to Sealaska,
comparable to the benefit to us, is that it resolves with us
some of their split estate issues.
The benefit to the local community and southeast Alaska's
economy, I think this exchange will also facilitate the
development of the Kensington Mine project, and that project
will result in significant job opportunities in southeast
Alaska.
Senator Murkowski. Thank you, Mr. Rey.
Mr. Bisson, I'll go to you here.
Mr. Bisson. Yes, Senator.
Senator Murkowski. There are those who are concerned with
the legislature that we have introduced regarding the
conveyances relative to the committee grant selections that
possibly this opens the door to new selections. Can you clarify
exactly what this section does? This is section 101 of the
legislation.
Mr. Bisson. As you know, Senator, section 6(a) of the
Alaska Statehood Act created two categories of community grant
entitlements. The State was allowed to take title to 400,000
acres of land from the national forest system, and an
additional 400,000 acres of lands from public remaining lands.
This section does not increase the State's entitlements in
either category, but it allows selections which would have
failed because they were too small to be conveyed, and confirms
the validity of previously conveyed tracts that are less than
160 acres in size.
The Forest Service has previously approved all the national
forest community grants application that are currently on file
with the BLM, and the State has petitioned for approval
selection to receive the full entitlements, so it's not
creating new entitlements.
Senator Murkowski. Could you explain what kind of
situations concerning these reversionary interests, how that is
going to apply and whether or not this will impact the
management of conservation system units?
Mr. Bisson. Within the State, under other authorities,
there have been previous transfers of land to the State and to
various communities where the Federal Government retained a
reversionary interest in the land in case the land wasn't used
for the purpose it was given. This provision allows the State
to clarify its title to some of these parcels by using a
portion of its remaining entitlements to select the Federal
Government's reversionary interest in properties that are
already owned by State or owned by political subdivisions of
the State.
Generally speaking, these properties are located in and
adjacent to cities, towns and villages. I don't have a
statewide list of the properties currently available, but we
can provide that to your staff if you wish. As the provision is
written, it would allow the State to select reversionary
interests in property that are located in some conservation
system units. However, these parcels are relatively small. They
are already developed, generally, and they are within villages
in some of these units, so they are within communities that are
current.
Senator Murkowski. University lands, entitlements for the
University of Alaska, I'm hearing that there may be some
confusion in the legislation, specifically in section 105, that
addresses the entitlements for the University of Alaska. Can
you put on the record exactly what this does?
Mr. Bisson. There is nothing in this bill that creates a
new entitlement for the university. The provision in section
105 enables us to complete the conveyances of 456 acres that
everyone agrees is still owed to the university under an
entitlement that Congress authorized in 1929. So there is no
new entitlements there.
Senator Murkowski. Let's see here, on the land transfer
bill, some are saying that the BLM planning process provides
the vehicle for releasing withdrawn lands. Can you explain why
we need to release the lands?
Mr. Bisson. I think, as Mr. Loeffler explained, you know,
the land pattern in Alaska is very complicated, and through
succeeding levels of legislation and succeeding withdrawals,
there are residual withdrawals out there that once we complete
these conveyances, when the Native allottees receive their
lands, when ANCSA corporations receive their land, and when the
State receives its land, there will be a number of parcels of
residual BLM-managed public land that are still encumbered by
these old segregations.
What we're looking for is a relatively simple process to
open these unencumbered land to the population of the public
land laws. Once they are open, they would come under the
requirements of our land use plan. They would be managed
consistent with our existing plan. We would conduct NEPA
analysis before we make any decisions on those lands. We just
think at this point to go through a time-consuming process to
open them to the laws is counterproductive, and we would
certainly be open to working with the committee, with yourself
and your staff if there are suggestions on how we can approve
it to assure the public that we can address their concerns
upfront, but we think we need this authority, and it will
actually accelerate our ability to operate as we would in any
other BLM Western State or any Western State in the country.
Put us on the same footing.
Senator Murkowski. Now, I know the answer to this question
already, but I'd like you to put it on the record. Are Native
allotments private land or Federal land and what about
conservation system units?
Mr. Bisson. Native allotments are private lands. They are
subject to the certain restrictions under Federal law. Native
allotments are privately-owned lands regardless of where they
are located. If they are in a conservation unit, they are still
private lands.
Senator Murkowski. And, then, just to follow up on that,
will the Native allotment subdivision act--you haven't touched
on that as much as you have on conveyances--is this going to be
implemented any differently in conservation system units?
Mr. Bisson. I don't believe it will.
Senator Murkowski. Thank you. I appreciate your comments
and your testimony. Mr. Loeffler, you went into some great
detail in terms of the failure to convey over a number of years
since statehood, those lands promised to us--and I like the
reference to the promised land. We do want to make sure that
that promise is very true. How much in recent years has been
transferred to the State?
Mr. Loeffler. To go over the last 5 years, the State has
had good years over the last 2 years. Received about 470,000
acres this year, and about a quarter of a million the previous
years. However, the previous 3 years, it was about 50,000
acres. If you take a 5-year average, it would take about 85
years to complete our entitlements. If you take just the
average of the 2 good years, it would take approximately 40
years to complete our entitlements at that rate.
Senator Murkowski. So that bolsters your statement earlier
that at the rate we're been going, we won't possibly make it
your lifetime or possibly our children's?
Mr. Loeffler. Yes, Senator.
Senator Murkowski. Why is it important to resolve the
Native allotments in order for the State to receive its title
to its lands?
Mr. Loeffler. Well, it's important for two reasons,
Senator. The first, of course, is because the individual
allottees are citizens of the State, and we believe it's
important to get the land that is due them. But it's important
for the overall transfer process, because if the allotment is--
the location is not in fact known, then it's difficult for us
to prioritize our lands, knowing there is a hole somewhere.
And let me give you one additional example. Seven years
after we received title to land and then sold that land to an
Alaskan, there was an allotment, if you will, that popped up in
that area and put a cloud on the title 17 years after we sold
it to an Alaskan. So as a result of the cloud on the title, we
had to offer our citizens the chance to refund and give the
land back, because we owe them, when we sell them land, true
fee-simple interest, so we had to refund the sale of a fee
simple interest to these individuals, and we eventually
resolved with the allottee, but these problems will linger in
the future, and so it's important to resolve them once and for
all so they don't happen again.
Senator Murkowski. How do you envision that this process
will work if we're able to pass this legislation? Obviously,
our goal is very ambitious to expedite the process so that by
the year 2009 the transfers are complete. How do you see it
working within the State?
Mr. Loeffler. Well, I have really developed this through my
discussions with Henri Bisson and staff. I would like to
compliment them on working with the State and others to develop
this. I imagine working through region by region, and in each
region, taking the people and the funding necessary to take a
final critical look at the allotments, the ANCSA conveyances,
and then the State transfers. So by being able to get the
critical mass of interest in one area, you can finish it once
and for all, and then move on to the next region, rather than
the way we do it which is doing a little bit here, a little bit
there, come back here and readjudicate it, do a little bit
there. So it's my expectation that we will do it that way, but,
of course, it really is by the BLM process.
Senator Murkowski. But you're prepared to assist in
whatever you need to do to make the process work?
Mr. Loeffler. Yes, Senator.
Senator Murkowski. You mentioned a little bit in your
testimony earlier the problems that are associated when we have
withdrawals that are lingering and hanging. Can you give some
specific examples as to what we're dealing with in the State,
things that can't move forward, projects that can't happen?
What is the real life example of the situation we're at here in
Alaska with not having such a substantial amount of our land
conveyed and these withdrawals hanging out there?
Mr. Loeffler. Well, let me give you an example of resource
development projects that are sort of awaiting land transfers.
One example is the North foothills area where there are
hundreds of thousands of acres. This is portion of the North
Slope that belongs to neither the State, nor the ASRC, Alaska
Slope Regional Corporation, so neither can lease them for oil
because of competing land selections.
The foothills area is one of the most promising interior
areas for the oil and gas industry, and the area had to be
excluded from our recent State land sales. Once those
selections are clean up, I expect the leases to go forward
quite quickly. That's an example of just plain competing
selections. It's not--that one did not involve lingering
withdrawals. I can give you some examples of those, if you
wish.
Senator Murkowski. Give me one.
Mr. Loeffler. Okay. One good example of a lingering
withdrawal is hydroelectric power. The Federal Government
established those withdrawals to make sure the hydroelectric
projects were kept in Federal ownership for future development,
but in some areas, Bradley Lake near Homer, we have already
built a hydroelectric plant. We have been unable to get the
land transfers because of the withdrawals.
So section 1 of 4 of this legislation would allow us to get
the land that we own that we need to manage and there is no
purpose for that withdrawal. That didn't hold up Bradley Lake.
Places where they have held up some work is, for example, in 40
Mile. In the 40 Mile, the original withdrawal was established
to figure out where the wild and scenic river was. BLM then
went through a public process to establish that wild and scenic
river, and it's within the 2-mile linear strip of the
withdrawal.
What you have, then, is little bits outside, within the
original corridor, but are outside the wild and scenic river
that are withheld from State ownership, and it's a historic
mining district, and yet miners can't work or stake claims in
there. So with respect to that portion of the promised land, if
you will, it's time to let our acreage go, so to speak.
Senator Murkowski. Very good. Thank you. I appreciate your
testimony and your willingness to respond to the questions. I
also appreciate your time here this morning. At this time, I
would like to call up those that will sit on our second panel.
Mr. Nelson Angapak, Mr. Peter Van Tuyn, Rosa Miller, Mr. Steve
Borell, Mr. Bruce Borup, and Mr. Tim Verrett. Good morning.
Welcome to the subcommittee. I appreciate you're accepting our
invitation to join us here morning. I will go down my list in
the order that I have them here. No particular order other than
that's the way it is on my schedule. So we will begin first
with Mr. Nelson Angapak from the Alaska Federation Of Natives.
Mr. Angapak, welcome and good morning.
Mr. Angapak. Good morning. Welcome to Alaska.
Senator Murkowski. Before you begin, I will remind
everyone, we do have the timer up here on the dais, and we will
let you know when you're getting close to time, but we will
help you with that, too. Thank you. Go ahead, Mr. Angapak.
STATEMENT OF NELSON N. ANGAPAK, JR., VICE PRESIDENT, ALASKA
FEDERATION OF NATIVES
Mr. Angapak. Thank you very much for the opportunity to
testify on these three bills. For the record, we want to thank
you for keeping the record of this hearing open for at least 2
weeks. We would also like to go on record to request that the
committee complete the field hearings in the State of Alaska in
the immediate future on at least S. 1466 and S. 1421. I do
believe if this request is granted that the inclusivity of the
statements that was made earlier will be fruitful.
Senator Murkowski, in 1974 just before the AFN convention,
when Kurt McVee was the State Director of BLM, in a public
hearing I stated that I did not think that during my lifetime
that the promises of land entitlements pursuant to the Alaska
Native Claims Settlement Act would be fulfilled. Further I
stated that I did not think that it would be fulfilled during
the lifetime of my children or possibly my grandchildren. S.
1466 gives me some hope that what was promised pursuant to
ANCSA might be fulfilled during my lifetime.
This is a good bill. We agree in principle and support in
principle the intent of S. 1466. We do have, however, have some
concerns with it, and they are identified in my written
statement. For example, section 211, procedures related to
dissolving of lapsed Native corporations. This provision in
effect makes the regional corporations trustees for the lands
for the land of dissolved Native village corporations. Our
recommendation is that this provision be modified in such a
manner that the regional corporations would serve in the role
of trustee for these lands, be provided with some form of
indemnity from any and all forms of litigation, because of the
role that they provide as trustees for this lands that
otherwise should have gone to the lapsed village corporations.
Perhaps the most challenging provision of this bill is
title 3. It removes some of the existing rights that are
presently enjoyed by the Native allottees. It is our hope that
before this bill is enacted that we will have an opportunity to
get together with your staff to look for ways and means of
correcting those. For the record, AFN supports the intent of S.
1354. It is our hope that bill will favorably act.
And, lastly, on S. 1421, this is a very sensitive bill from
the standpoint of the fact that we within the Native community
have some concerns of our lands being sold to third parties.
However, I think S. 1421 creates a balance between the
sensitivity of selling land to third parties, because this bill
provides a tool for Bureau of Land Management, BIA, and all the
trustees that if in fact a Native individual allottee decides
that they are going to sell their land to third parties, this
bill provides the tool for those who are acting as trustees on
behalf of that allottee.
Because I do believe if this bill is passed, it will allow
the trustees to find ways and means of negotiation on the best
interests of the Native allottee. So I believe that this bill
does create that balance. And thank you very much. I'll be open
for questions.
[The prepared statement of Mr. Angapak follows:]
Prepared Statement of Nelson N. Angapak, Sr., Vice President,
Alaska Federation of Natives
INTRODUCTION
Good morning, Honorable members of the Subcommittee on Public Works
and Forests of the U.S. Senate Committee on Energy and Natural
Resources, ladies and gentlemen:
For the record, my name is Nelson N. Angapak, Sr. Vice President,
Alaska Federation of Natives (AFN). As the Honorable Lisa Murkowski
knows, AFN is a statewide Native organization formed in 1966 to
represent Alaska's 100,000+ Eskimos, Indians and Aleuts on concerns and
issues which affect the rights and property interests of the Alaska
Natives on a statewide basis.
On behalf of AFN, it's Board of Directors and membership, thank you
very much for inviting me to submit my comments regarding S. 1466, a
bill to facilitate the transfer of land in the State of Alaska, and for
other purposes; S. 1421, a bill to authorize the subdivision and
dedication of restricted land owned by Alaska Natives; and S. 1354, a
bill to resolve certain conveyances and provide for alternative land
selections under the Alaska Native Claims Settlement Act related to
Cape Fox Corporation and Sealaska Corporation, and for other purposes.
My comments will concentrate on S. 1466, and in particular, Title II of
this bill.
We applaud the efforts of the Honorable Lisa Murkowski in resolving
the decades-old land issues in the state of Alaska.
I ask that this written statement and my oral comments be
incorporated into the record of this public hearing. I further request
that the record of this hearing remain open for at least two weeks so
that representatives of the Alaska Native Community may submit their
comments regarding these bills as well.
ANCSA CORPORATE LANDS
Pursuant to the terms and conditions of the Alaska Native Claims
Settlement Act (ANCSA), enacted into law on December 18, 1971, Congress
authorized transfer of 44.5 million acres of land back to the Alaska
Natives through their ANCSA Corporations. ANCSA promised, in part, that
the settlement of the claims of the Alaska Natives against the federal
government ``should be accomplished rapidly, with certainty, in
conformity with the real economic and social needs of Natives . . .''
\1\
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\1\ Sec. 2(b) of P.L. 92-203
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To date, none of the village and regional ANCSA corporations
created pursuant to ANCSA has received their full land entitlements.
One of the reasons of this delay is the lack of funds needed for the
survey of the lands selected by the ANCSA corporations.
S. 1466
S. 1466, a bill to facilitate the transfer of land in the State of
Alaska, and for other purposes, is a step in the right direction in
resolving unresolved land issues impacting the State of Alaska, the
ANCSA corporations and the Native Allotees. We agree in principle on
the intent of S. 1466.
In introducing S. 1466, the Honorable Lisa Murkowski correctly
stated that Bureau of Land Management's (BLM) ``land conveyance program
in the State of Alaska is the largest and most complex of any in United
States history. For many years, BLM's primary goal was to convey title
to unsurveyed lands to the State and Native Corporations by tentative
approval and interim conveyance, respectively. This management practice
allowed the State and Native Corporations to manage their lands,
subject only to the survey of the final boundary.
This legislation will accelerate release of lands for conveyance to
Native corporations and the State of Alaska. It will complete land
patterns to allow land owners to more efficiently manage their land. It
will clarify that certain minerals can be transferred to Native
landowners. And frankly, split estates can be minimized. The University
will be given the opportunity to select the remaining Federal interests
in lands the University already owns, that will likely produce economic
opportunities not presently available under this land lock.'' \2\
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\2\ Congressional Record Senate; page 59975, July 25, 2003.
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We are looking at S. 1466 as a tool for BLM that will enable it to
substantively complete the federal government's conveyance obligations
to ANCSA corporations, hopefully by the end 2009.
The following is our section-by-section comments on Title II of S.
1466:
Sec. 201. Land Available After Selection Period
This section enables BLM to use Federal lands that were not
available during the original ANCSA selection period, but are now
available, to fulfill village corporation entitlements. We recommend
that the implementation of this section be done in such a way that BLM
and the ANCSA corporations affected will work cooperatively to the
mutual satisfaction of both parties.
Sec. 202. Combined Entitlements
This section addresses several issues critical to the fulfillment
of ANCSA. AFN supports this section with the following comments:
1. Establishes a deadline by which Regional Corporations must
complete reallocation under section 12(b): We recommend that
BLM works very closely With tire regional corporations who are
and will be impacted by this mandate.
2. This section also authorizes BLM to merge 12(a) and 12(b)
land selections of the village corporations that were timely
submitted by December 18, 1974 and December 18, 1975. We
recommend that BLM works closely with the regional and village
corporations in the implementation of this section.
Sec. 203. Conveyance of Last Whole Section of Land
This provision applies to lands selected under section 12 of ANCSA,
but not to village corporations in Southeast, Alaska whose original
entitlements were 23,040 acres. We support its intent.
Sec. 204. Discretionary Authority To Convey Subsurface Estate in Pre-
ANCSA Refuges
This section gives the Secretary of the Interior discretionary
authority to permit subsurface conveyance in place beneath village
lands within certain refuges as an alternative to the mandatory
creation of split estates. The U.S. Fish & Wildlife Service (FWS) must
work closely with the affected regional corporations in the
implementation of this provision to the mutual satisfaction of all the
parties affected by this provision.
Sec. 205. Conveyance of Cemetery Sites and Historical Places
We are still trying to understand this section so we are not
prepared to make specific substantive comments on this section as it is
written. The best we can to at this time is to recommend that Congress
considers the extension of the application of existing federal statutes
that provide protection of historical and cultural sites to 14(h)(1)
ANCSA land selections by adopting legislative language that would
authorize such protection.
Sec. 206. Approved Allotments
This section codifies the document entitled ``Audit Summary ANCSA
14(h)(6) Acreage dated July 1983'' and found in 48 Federal Register
37086, August 16, 1983. Fixing the total acreage at 184,663 acres wilt
create another definite number that will make it easier to accelerate
the finalization of ANCSA land entitlements pursuant to Sec. 14(h) of
ANCSA.
Sec. 207. Allocations Based on Population
This section offers ten of the twelve Regional Corporations three
options for final resolution of 14(h)(8) entitlements in the following
fashion:
1. A Regional Corporation may elect to take its percentage
share of a fixed acreage amount as settlement for a final
14(h)(8) entitlements. The 255,000 acres set by this
legislation will allow those corporations wanting to settle
their 14(h)(8) entitlements to do so now.
2. The second method is that each corporation who chooses to
do so is authorized to enter into direct negotiations with the
Secretary to settle its entitlement independent of other
corporations.
3. The last method is the status quo.
These provisions allow the regional corporations with methodologies
through which they may finalize their Sec. 14(h)(8) land entitlements,
again a good provision.
Sec. 208. Authority To Withdraw Lands
This section authorizes the Secretary to withdraw lands that would
allow the regional corporations to satisfy their land entitlements
except for those lands located within the boundaries of the
conservation system units and defined in section 102 of ANILCA. We
support this provision as well.
Sec. 209. Bureau of Land Management Land
Sec. 17(d)(1) of ANCSA gave the Secretary of the Interior an open-
ended authority to withdraw lands for further study and to open such
lands through any classification or reclassification. At the very
least, this section would provide the Secretary with specific authority
to close or to open lands to certain uses or appropriations. Congress
should consider the merits of closing the open ended authority provided
to the Secretary of the Interior pursuant to Sec. 7(d)(1) of ANCSA and
this provision seems to do that.
Sec. 210. Automatic Segregation of Land for Underselected Village
Corporations
This section streamlines the current process for fulfilling the
land entitlements of the underselected villages. This section
authorizes the appropriate federal agencies and the underselected
village corporations with the right to negotiate a final agreement as
to exactly which lands shall be conveyed to the village corporations to
satisfy corporation's land entitlement. This process, when implemented,
must involve the regional corporations where the underselected village
corporations are located.
Sec. 211. Procedures Relating to Dissolved or Lapsed Native
Corporations
This section provides a mechanism for the completion of ANCSA
entitlements even when the benefiting corporation is not currently
operational or no longer in existence. One of the most unique aspects
of ANCSA is that the direct beneficiaries are State-chartered
corporations. This process, for the most part, will apply to ANCSA
village corporations. The ANCSA village corporations, from time to
time, when they do not meet the Alaska state corporate and securities
statute find themselves dissolved or lapsed. Such corporations can be
reestablished as ANCSA corporations by meeting the State of Alaska's
corporate statutes.
Pursuant to this section, the ANCSA Regional Corporation would
assume the responsibility for administering the assets, including land
holdings, of a lapsed or dissolved ANCSA village corporation.
AFN recommends that the ANCSA regional corporations who would serve
in the role of trustee for the land entitlements of such dissolved or
lapsed ANCSA corporations be provided with indemnity or immunity from
any and all forms of litigation for the role they played as land
trustees for the lapsed/dissolved ANCSA village corporations located
within their boundaries.
Sec. 212. Settlement of Remaining Entitlement
This section authorizes the Secretary and the ANCSA corporations to
resolve remaining land entitlements of the ANCSA corporations through
good faith negotiations between the parties involved.
Sec. 213. Conveyance to Kaktovik Inupiat Corporation and Arctic Slope
Regional Corporation
Kaktovik is a Native village that was entitled to a total of four
townships of land pursuant to Sec. 14(a) of the Alaska Native Claims
Settlement Act. Sec. Sec. 12(a)(1) of ANCSA restricted Kaktovik to
select only three townships in the Arctic National Wildlife Refuge.
This section would authorize the Secretary of the Interior to satisfy
the land entitlements of Kaktovik in accordance to the terms and
conditions of ANCSA.
AFN supports, in principle, the terms and conditions of Title II of
S. 1466. We made some recommendations in some of the sections of Title
II, with this in mind; it is our hope that our recommendations will be
incorporated into this bill insofar as this provision is concerned.
Our additional comments relative to ANCSA land selections are as
follows:
1. Section 107 of Title I, EFFECT OF FEDERAL MINING CLAIMS,
authorizes the Secretary to convey former mining claims within
State selected lands to the State of Alaska with no charge to
Alaska's land entitlements. AFN recommends that the former
mining claims located within the boundaries ANCSA selected
lands be conveyed to the ANCSA Corporations with no charge to
ANCSA land entitlements much the same way that is would be
authorized pursuant to Section 107 of Title I.
2. Section 108 of Title I, LANDS MISTAKENLY RELINQUISHED OR
OMITTED, allows the State to seek permission to correct
clerical errors made in previously-filed selection applications
or relinquishments. The State must demonstrate to the
satisfaction of the Secretary with management jurisdiction over
the lands that a mistake was made. This provision eliminates
the need to employ a lengthy, cumbersome, and potentially
costly exchange process to correct obvious errors. AFN
recommends this concept be extended to the ANCSA corporations
as well.
TITLE III--NATIVE ALLOTMENTS
Title III of S. 1466 provides the federal government with ways and
means of streamlining the current procedures on the adjudication of
Native Allotments. We support the intent of Title III; but at the same
time, we have some serious concerns that we would like to bring to the
attention of the committee concerning this title.
First and foremost, we understand that Congress has a
constitutionally guaranteed plenary right to legislate issues impacting
the American Indians and the Alaska Natives. While recognizing this, we
would also remind the committee that Congress has a duty of loyalty to
Indians and therefore ``must act with good faith and utter loamy to the
best interests of the Indians'' as stated in Seminole Nation v. U.S.,
316 U.S. 286, 296-97 (1942). In other words, when enacting legislation
pursuant to its power to legislate Indian affairs, Congress must
fulfill its fiduciary obligation toward American Indians and the Alaska
Natives.
The framers of the U.S. Constitution made certain that Congress has
fiduciary responsibility over American Indians, including the Alaska
Natives. Therefore, Congress must look at Title III of S. 1466 with a
heightened scrutiny because it has a potential of violating equal
protection guarantees of the Alaska Natives afforded them by the U.S.
Constitution.
Please allow me to address some of the major concerns we have that
merit closure scrutiny. They are as follows:
1. Existing right: applicants (or heirs) now have the right to
amend the description of their allotments if the government placed the
allotment in tile wrong location or the allotment does not contain the
correct number of acres.
Section 304(f)(5) eliminates the applicants' right to amend even if
the government caused the error.
2. Existing right:applicants (or heirs) have the right to get
closed allotment cases reopened/reinstated if BLM closed the case in
error or in violation of the applicants' due process rights (did not
give notice or opportunity for a hearing).
Section 304 (f)(1) and (f)(3) eliminates all rights to reopen/
reinstate closed allotment eases.
3. Existing right: applicants (or heirs) have the right to file
reconstructed applications in cases where the government lost their
original application.
Section 304 (f)(1) eliminates all rights to file reconstructed
applications.
4. Existing right: applicants (or heirs) who have already filed
reconstructed applications have a right to a hearing to prove they
filed an application.
Section 304 (f)(2) eliminates this right and instead allows BLM to
reject an already filed reconstructed application unless the BLM's file
already contains the following information:
a. the name of the person who took the original application
and the agency that person worked for;
b. the month and the year the original application was
submitted;
c. the specific address where the original application was
submitted;
d. two affidavits attesting to the applicants' qualifying
use; and
e. two affidavits from non-family members attesting that they
know the original applications were filed.
5. Existing right: applicants that relinquished a part or all of an
allotment unknowingly or involuntary have the right to have their case
reopened to determine if the relinquishment is valid.
Section 304 (f)(3) eliminates this right.
6. Existing right: applicants (or heirs) have a right to a hearing
to determine certain factual issues in their allotment cases and the
hearings are now conducted by impartial judges from the Office of
Hearings and Appeals under rules set by federal regulations.
Section 501 eliminates this right and instead establishes a new but
undefined process for hearings that may or may not be governed by
existing federal regulations and may be conducted by any employee of
the Department of the Interior including BLM employees.
7. Existing right: applicants (or heirs) have a right to appeal
BLM's decision to the Interior Board of Land Appeals under rules
governed by federal regulations.
Section 501 eliminates this right and instead establishes a new
appeals process that may or may not be governed by existing federal
regulations and may be decided by any employed of the Department of the
Interior including BLM employees.
For the purposes of these comments, we identified the existing
rights that the Alaska Native Allotees presently enjoy and then
identified the sections of S. 1466 that eliminates these existing
rights. AFN recommends that this committee amend the above referenced
sections so that the existing rights of Alaska Native applicants will
be restored. To that end, AFN offers assistance in crafting amendments
to S. 1466 that will ensure that Congress continues to fulfill its
fiduciary obligation toward Alaska Native allotment applicants.
title iv--final priorities; conveyance and survey plans
This title, in part, mandates the final prioritization of village
and regional corporation land selection by setting a 36 month for
village corporations and a 42 month deadline for regional corporations
by which final priorities must be filed after the enactment of this
legislation. It also sets a limit on remaining overselections by the
ANCSA Corporations. AFN has one major concern over this title.
The ANCSA regional corporations selected their land entitlement
necessarily based, in part, on the natural resources potential of the
lands withdrawn for their land selections; and they made their land
selections in a timely basis. Over the years, the federal government
has requested that the ANCSA regional corporations reduce their
overselections by relinquishing some of their selected lands. The
regional corporations are willing to comply with such requests; but
they are also caught between rock and a hard place, not of their
choosing or the choosing of the federal government.
For example, some of the land selections of Ahtna, Inc. are totally
surrounded by what is now Wrangell St. Elias National Park. Ahtna, at
one point in the past, attempted to gain access to their selected lands
located within this National Park but experienced difficulties in
obtaining one. Wrangell St. Elias National Park is managed pursuant to
the rules and regulations that govern this type of a National Park.
Because of this and other factors, the managers of this National Park
could not, in good conscience, allow Ahtna access to their selected
lands so they could do additional natural resources exploration before
relinquishing some of their land selections. Ahtna, as a for profit
regional corporation, wants to keep its land selections that has the
greatest potential in natural resources for the benefits of its
shareholders.
This committee should consider adding legislative language to this
draft legislation that mandates that the managers of conservation
system units such as Wrangell St. Elias National Park provide access to
regional corporations such as Ahtna to their selected lands for the
purposes of additional natural resources exploration so that they might
reduce their overselections as mandated by this bill. Short of adopting
such language, this committee should consider exempting the ANCSA
regional corporations from relinquishment their lands selections to a
limit set by this section until such time a reasonable solution to this
issue is arrived at.
TITLE V--ALASKA LAND CLAIMS HEARING AND APPEALS
Sec. 501. Alaska Land Claims Hearings and Appeals
This title and section authorizes the Secretary of the Interior to
establish a specialized hearings and appeals process in Alaska to issue
final decisions for the Department of the Interior for disputed Alaska
land transfer issues. AFN feels the key for the successful
implementation of this provision would be the judges who would be hired
by the Secretary for this purpose. We hope that these judges will be
those familiar with ANCSA, Alaska Statehood Act, and the Native
Allotment statutes. Since ANCSA and the Native Allotments statutes are
considered Indian Legislation, some of the judges hired to staff this
specialized hearings and appeals process must be familiar the
implementation of Indian legislation.
TITLE VII
Sec. 701. Authorization of Appropriations
AFN recommends that this provision be amended so that it authorizes
and appropriates necessary sums as are necessary to carry out the
purposes of this Act; otherwise, it may end up as an unfunded mandate
from Congress to the Departments of Agriculture and Interior.
This concludes my written statement; and I would be willing to
answer any questions the committee may have of me concerning this
testimony.
On behalf of AFN, thank you very much for giving the opportunity to
submit this statement.
Senator Murkowski. Thank you. I appreciate your testimony
this morning. Let's next go to Mr. Steve Borell of the Alaska
Miners Association.
STATEMENT OF STEVEN C. BORELL, EXECUTIVE DIRECTOR,
ALASKA MINERS ASSOCIATION, INC.
Mr. Borell. Good morning, Senator Murkowski, and thank you
very much for the opportunity to testify on these bills, and
thank you also for taking an initiative to introduce these two
very important pieces of legislation, and by that I'm referring
firstly to S. 1354.
We wish to go on record in support of this legislation.
This act will accomplish important land exchanges that will
result in added economic opportunity for Cape Fox Corporation,
city of Juneau, and all of southeast Alaska will also benefit
from this legislation as it adds to the economic diversity of
the region.
The other bill we would like to comment on is S. 1466. This
issues of the land status and access to land in Alaska has been
a major topic of certain Alaskans since before statehood.
Indeed, land status and the difficulty of the average citizen
to obtain land in the territory of Alaska was a major force in
the drive for Alaska to become a State. Through the Statehood
Act, the new State was promised it could select and obtain
title to approximately 104 million acres from the total of 365
million acres. However, this promise has been slow to be
realized.
This has not been the fault of any agency, but due rather
to the size and complexity of the task and several issues
including the settlement of Native land claims and subsequent
debate over Federal conservation system units. We're pleased
that S. 1466 will address and correct many of the laws to allow
transfer of lands in a more straightforward and simplified
manner. However, we have three major issues of concern and
several other suggests for change, and I would just like to
address these major interests and concerns at this point. The
first major concern involves lingering withdrawals.
If S. 1466 is to be of real value to the State of Alaska
without hurting the long-term interests of the State, it is
absolutely essential that the Federal lingering withdrawals--
lingering Federal withdrawals be removed so the State's top
files will fall into place and the affective land be
prioritized for conveyance to the State. Lingering withdrawals,
also known, as mentioned by the previous speaker there, as
outdated withdrawals are withdrawals for which the original
purpose of the withdrawal no longer exists.
All across Alaska, there are lingering withdrawals of
various types. These lingering withdrawals must be removed at
the earliest possible date so the State can evaluate and
compare these lands with other selections to ensure that the
highest value lands are conveyed to the State. The importance
of removing these lingering withdrawals has been recognized by
many individuals, including the 23rd Alaska State Legislature
which passed House Joint Resolution No. 48 relating to Federal
land withdrawal, which called for removal of these lingering
withdrawals.
Also, the BLM Alaska Resource Advisory Council passed a
resolution calling for the removal of lingering withdrawals. It
is appropriate that removal of these withdrawals become a part
of this legislation. The second major concern deals with the
proposed new authority of BLM to close lands for mineral entry.
Section 209 includes a new authority for BLM to close lands
both as part of a land planning process and also as it may
desire with conditions or restrictions. This new authority to
any agency is without precedent in this Nation and is not
appropriate.
Closing land to mineral entry is a major Federal action
carrying with it some of very gravest possible consequences for
the Nation. Mineral closures must occur only through a specific
act of Congress to ensure that the needs of the Nation are
probably considered. No lesser test is workable or appropriate
considering the importance of the action. State of Alaska at
one time allowed the Department of Natural Resources to close
lands to mineral entry under State law, but this provision had
to be changed because the agency could not control its appetite
for closures.
Many of millions of acres of State land were closed as part
of land management plans with little justification and little
consideration of the potential adverse importance on the future
State and its economy. As a result, approximately 10 years ago,
legislation--the legislature changed the act to allow not more
than 640 acres to be administratively closed.
This new authority is at the very heart of the attack
against the Federal mining law. Former Senator Dale Bumpers of
Arkansas, for him this very provision was a centerpiece of many
bills that he introduced to change the law on numerous
occasions. Senator Bumpers chided and even taunted Senators
Stevens and Murkowski that all he wanted was the same provision
in Federal law that Alaska had in its law; i.e., administrative
closure. Thank you very much.
[The prepared statement of Mr. Borell follows:]
Prepared Statement of Steven C. Borell, Executive Director,
Alaska Miners Association, Inc.
Thank you, Senator Murkowski, for the opportunity to testify on
these bills. Thank you also for taking the initiative to introduce
these two very important pieces of legislation.
S. 1354, CAPE FOX LAND ENTITLEMENT ADJUSTMENT ACT OF 2003
We wish to go on record in support of this legislation. This Act
will accomplish important land exchanges that will result in added
economic opportunities for the Cape Fox Corporation. The City of Juneau
and all of Southeast Alaska will also benefit from this legislation as
it adds to the economic diversity of the region.
S. 1466, THE ALASKA LAND TRANSFER ACCELERATION ACT OF 2003
Introductory
The issues of land status and access to land in Alaska have been
major topics of concern for Alaskans since before Statehood. Indeed,
land status and the difficulty of the average citizen to obtain land in
the Territory of Alaska was a major force behind the drive for Alaska
to become a state. Through the Statehood Act the new State was promised
it could select and obtain title to approximately 104 million acres
from the total 365.5 million acres that make up Alaska. However, this
promise has been slow to be realized.
This has not been the fault of any agency but is due rather to the
size and complexity of the task and several issues including settlement
of the Native land claims and the subsequent debate over designation of
federal conservation system units. Another factor is that land title
issues are very detailed and not well understood by the general public.
All this has been exacerbated by the fact that many of the requirements
now in various laws were originally established for other states and
circumstances and they do not fit Alaska's needs. We are pleased that
S. 1466 will address and correct many of these laws to allow transfer
of the lands in straight forward and simplified manner.
However, we have identified three items of major concern and some
other items that require changes to make this legislation workable.
ITEMS OF MAJOR CONCERN
The three major items of concern involve lingering withdrawals, a
proposed new authority for the Bureau of Land Management (BLM) to close
lands to mineral entry and a proposed new forfeiture provision whereby
the State of Alaska could be forced to forfeit land entitlement not yet
conveyed.
1. Lingering withdrawals--If S. 1466 is to be of real value to the
State of Alaska, without hurting the long term interests of the State,
it is absolutely essential that several lingering federal withdrawals
be removed so the State topfilings can fall into place and the affected
lands prioritized for conveyance to the State. Lingering withdrawals,
also known as outdated withdrawals, are withdrawals for which the
original purpose of the withdrawal no longer exists.
All across Alaska there are lingering withdrawals of various types.
The magnitude of this problem is not known and as recent as a few days
ago the BLM was not able to provide a complete listing of these
withdrawals and the total acreage affected by each. The amount of land
covered by the lingering withdrawals has been estimated to be possibly
several million acres. What is known is that some of the lands covered
by lingering withdrawals have high potential for minerals and have been
selected by the State of Alaska and/or Native Corporations. However,
because these lands are withdrawn, they cannot be transferred to either
the State or Native Corporations.
Furthermore, these lingering withdrawals must be removed at the
earliest possible date so the State can evaluate and compare these
lands with its other selections to ensure that the highest value lands
are conveyed to the State. This is especially true given the
restrictive time limitation required for final prioritization.
The importance of removing these lingering withdrawals has been
recognized by many groups and individuals. The 23rd Alaska State
Legislature passed House Joint Resolution No. 48, relating to federal
land withdrawals, which called for removal of these lingering
withdrawals. Also, the BLM Alaska Resource Advisory Council (RAC) has
passed a resolution calling for removal of these lingering withdrawals.
As stated previously, it is absolutely essential for the long term
interests of the State of Alaska that these lingering withdrawals be
removed before the State commits to any irrevocable conveyance
decisions. It is appropriate that the lingering withdrawals to be
removed as part of this legislation and that lists, maps and acreages
of the withdrawals be developed to define the magnitude of the problem.
2. Proposed new authority for the BLM to close lands to mineral
entry--Sec. 209 includes a new authority for the BLM to close lands to
mineral entry 1) as part of a land use plan, and 2) as it may desire,
without any condition or restriction. To give this new authority to any
agency is without precedent in this Nation and is totally unacceptable.
Closing any land to mineral entry is a major federal action
carrying with it some of the very gravest possible consequences for the
Nation. Mineral closures must occur only through a specific direct Act
of the Congress to ensure that the needs of the Nation are properly
considered. No lesser test is workable or appropriate considering the
importance of the action.
The specific language of concern is in Sec. 209(a)(1) and in
209(c).
In 209(a)(1) the subsection reads in part ``(1) IN GENERAL--
Notwithstanding revocation of a withdrawal under section
17(d)(1) . . . the Secretary may classify or reclassify any
land administered by the Bureau of Land Management in the State
to open or close the land to any form of appropriation or use
under the public land laws.'' The phrase ``or close'' must be
removed.
In 209(c) the subsection reads in part ``LAND INCLUDED IN AN
APPROVED RESOURCE MANAGEMENT OR LAND USE PLAN--Land that is
included in an approved . . . may be opened or closed to
location and entry . . .'' The phrase ``or closed'' must be
removed.
The State of Alaska at one time allowed the Department of Natural
Resources to close lands to mineral entry under State law but this
provision had to be changed because the agency could not control its
appetite for closures. Several million acres of State land were closed
as part of land management plans with little justification and with
little consideration of the potential adverse impacts on the future of
the State and its economy. As a result, approximately 10 years ago the
Legislature changed the law to allow not more than 640 acres of land to
be administratively closed to mineral entry. If a larger area is to be
closed, the closure must be approved by the Legislature and signed by
the Governor.
This new authority proposed in Sec. 209 is at the very heart of the
attack against the General Mining Law that has occurred over the past
20 or more years. For former Senator Dale Bumpers of Arkansas this very
provision was the centerpiece of his many bills to change the Mining
Law. On numerous occasions Senator Bumpers chided and even taunted
Senators Stevens and Murkowski that all he wanted was the same
provision in federal law that existed in Alaska State law, i.e.,
administrative closure to mineral entry. Given the recent behavior of
the previous Administration in Washington, DC, such a provision would
surely have been used to close nearly all public lands in this entire
country.
The impact of this proposed new authority would go far beyond the
borders of Alaska. Such a provision would, over time, be applied
throughout the country and our well-founded fears of the previous
administration would be realized.
3. Proposed new land forfeiture provision--Sec. 404(e) includes a
new provision whereby the State of Alaska could, under a certain set of
circumstances, be forced to forfeit land entitlement promised in the
Statehood Act. This subsection states that ``If the State fails to
relinquish a selection under paragraph (1), the Director shall reject
the selection''. This subsection does not give the Director any
discretion whatsoever and would result in forfeiture of land
entitlement promised to the State of Alaska in the Statehood Act. This
forfeiture provision must be removed.
Other Items (In the order they appear in S. 1466, not by priority)
4. Removal of reversionary interests--Sec. 103 to remove various
reversionary interests, including those referenced regarding the
University of Alaska, is very important and will greatly simplify the
complex land issues facing the BLM and the State.
5. Power site and hot spring withdrawals--Sec. 104 to address power
site and hot spring withdrawals will greatly simplify dealing with
these withdrawals. It is especially important that the requirement to
petition Congress for private relief legislation be removed as is being
proposed.
6. Mining claims--In Sec. 107(b)(2)(A) the statement needs to be
clarified to read ``(A) shall not include more than 1,280 contiguous
acres of land per conveyance;'' (New words in italic.)
7. Mistakes and omissions--Sec. 108 is very important and is
essential for this piece of legislation to work effectively.
8. Judicial review--Sec. 209(a)(2) regarding judicial review should
be moved to a new subsection (d) so it applies to the entire Sec. 209.
9. Need to be certain that lands will be opened--In Sec. 209(b) the
BLM is given the authority that it ``may'' open 17(d)(1) withdrawals
that are not otherwise withdrawn or reserved. This needs to be changed
to ensure that these lands are indeed opened and provide this
certainty. With new words in italic and removed words [bracketed] we
recommend that the phrase be changed to read ``. . . but not otherwise
withdrawn or reserved, [may be] shall be opened, without environmental
review, to all forms of appropriation . . .'' To ensure proper public
notification it may be necessary to specify publication in the Federal
Register contingent upon completion of some other actions. However,
waiting to open these d(1) withdrawals until after completion of the 42
months (3.5 years) allowed in Sec. 403(a) is not soon enough. Some
other condition must be identified to determine the date by which the
d(1) withdrawals shall be opened.
10. Definitions needed--In Sec. 404 the terms Irrevocable
priorities, Topfiled priorities and Revocable priorities need to be
defined and examples given to ensure that everyone understands what
these terms mean and the consequences of assigning these priorities to
a given area of land.
11. Insufficient time for State to set priorities--In Sec. 404 the
State has only 180 days (6 months) from notification to file its
selection priorities for the Regional Conveyance and Survey Plan areas.
This is not enough time. The State must have more time and must be able
to see selection priorities for all Regional Conveyance and Survey Plan
areas at the same time. If the State cannot carefully evaluate all the
areas at the same time it will not be able to effectively prioritize
its selections.
12. Financial assistance--In Sec. 404(8)(2) it needs to be
clarified that the State will receive funds for the evaluation and
prioritization of the lands that become available as d(1) withdrawals
are removed.
13. Administrative law judges--Sec. 501 establishes a hearings and
appeals process and recognizes the need for administrative law judges.
This is very important. The current caseload for the IBLA is very large
and it would be impossible to obtain timely decisions through the
current IBLA. The administrative law judges need to be located here in
Alaska and allowed to focus on Alaska issues.
Senator Murkowski. Thank you, Mr. Borell. Next let's go to
Mr. Peter Van Tuyn, Trustees for Alaska. Good morning and
welcome.
STATEMENT OF PETER VAN TUYN, TRUSTEES FOR ALASKA
Mr. Van Tuyn. Good morning. I thank the subcommittee and
the Senator for inviting me here today. I focus my comments on
S. 1466 and provide them on behalf of the full spectrum Alaska-
based and national conservation organizations, some of which
also asked me to introduce into the record their statements, if
I may. This act is of great concern to the conservation
community. While the announced goal of the act's proponents is
to provide the prominent plan is a good one, the act goes
beyond addressing just this issue.
S. 1466 is an extremely complicated and broad piece of
legislation. Broader, in fact, than the public statement of its
purpose. Its provision excludes the public from the newly
established land conveyance process and goes well beyond
existing land entitlements to provide new entitlements.
Inexplicably, the act goes even further by providing nearly
unfettered authority to the Secretary of the Interior to change
land use on literally millions of acres of land in Alaska, all
without public or judicial overview and without disclosure of
potential environmental impacts or impacts on subsistence.
This massive piece of legislation, nearly 70 pages in
length, was proceeded by little public discussion of the full
range of problems it seeks to rectify. One reason for this is
there has been little or no public discussion of the cause and
scope of the current land transfer problem. Our first
recommendation, therefore, is that this discussion occur in an
open and public manner. Traditional vehicles exist to do this.
One, we appreciate the opportunity here today to talk about it.
Another one, given the Department of the Interior is an
obvious driver of this legislation, doing much of the leg work
to prepare it, is to have an administrative analysis prepared
by the Department of the Interior and use that as a vehicle for
discussion. Furthermore, complex provisions of the act defy
easy explanations and raise questions about the on-the-ground
effect of them. For example, how many acres of land with CSUs
are affected or potentially affected by this act? Where
specifically are these lands located; in which parks, refuges
and wilderness areas? How much will or could State entitlement
increase under this act? How much will or could the Native
regional corporation entitlements increase under this act?
Could the Department of the Interior address the status or
validity of R.S. 2477 rights-of-way under this act?
The answer to these and other fundamental questions are
critical to an understanding of this act, and, therefore, it is
critical that they be provided in a full and timely manner. All
that said, what can be understood about S. 1466 is that it
could affect public lands in Alaska in significant and damaging
ways. While responding to the State's cry of, let my acres go,
may be important, this act goes beyond that goal. For many of
the Federal decisions it covers, it eliminates public and
judicial review, sanctions ignorance of such decisions on the
environment and subsistence, and significantly changes the land
patterns, uses, and protective procedures that Congress
deliberately established for certain areas.
I will touch on just a few provisions of the act to
illustrate my point. Section 201 authorizes the Secretary to
waive acreage limits on conveyances within refuges. Section 204
gives the Secretary discretion to waive pre-ANCSA refuge land
selections.
Section 207 declares 255,000 acres to regional
corporations' selective remaining entitlements under 14(h)(8),
whereas, only last year, BLM, after extensive analysis,
estimated it to be only 180 to 200,000.
Section 209, I find myself in agreement with Mr. Borell,
perhaps for the first time. This has the authority for BLM to
open and close lands without any public review, judicial
review, and without opportunity for public comment.
Finally, section 213 appears only to be intended as
momentum to ill-advised efforts to drill for oil in the Alaska
National Wildlife Refuge.
In conclusion, S. 1466 proposes huge changes to existing
laws, land entitlements, and land use policies. Please table
this legislation and institute an open and public process to
identify and rectify the legitimate barriers of land transfers.
Thank you very much.
[The prepared statement of Mr. Van Tuyn follows:]
Prepared Statement of Peter Van Tuyn, Trustees for Alaska
SUMMARY OF TESTIMONY
Thank you for the opportunity to present testimony before the
Subcommittee on Public Lands and Forests on S. 1466, the Alaska Land
Transfer Acceleration Act of 2003. This Act is of great concern to the
conservation community, and, if passed, would likely result in the
quick conversion of legitimately public resources to private ownership
for little discernable public benefit.
While the announced goal of the Act's proponents to finally resolve
land ownership questions in Alaska is a good one, the Act goes well
beyond addressing just this issue. Indeed, the extent of the federal
government's difficulties in resolving land ownership issues using
existing mechanisms is not at all clear. Without this fundamental
information on the problem, crafting a solution is premature.
Consequently, the introduction of S. 1466 is premature.
S. 1466 is extremely complicated and broad in scope; broader in
fact than the public statements of its purpose. Several of its
provisions exclude the public from a newly established land conveyance
process and go well beyond existing land entitlements to provide new
entitlements. Inexplicably, the Act goes even further by providing
nearly unfettered authority to the Secretary of the Interior to change
land use on literally millions of acres of public lands in Alaska, all
without public or judicial review, and without disclosure of
environmental effects or impacts on subsistence.
Until questions concerning these fundamental issues are answered by
the Act's proponents, we can take no position in support of legislation
addressing the worthy goal of settling land ownership issues in Alaska.
Instead, we must oppose the movement of S. 1466 through Committee and
Congress. Once the problems with the current system are thoughtfully
identified and evaluated, we can all turn to the task of crafting
solutions to them. Whether these solutions occur in the administrative
or legislative arena, the conservation community is committed to
assisting all interested parties in crafting fair and equitable
solutions, solutions which resolve in a timely manner land ownership
issues and do so with the integrity that comes from a fair and open
public process using historical land entitlements as the guide.
In this testimony, I first introduce myself, Trustees for Alaska,
and the other organizations on whose behalf I submit this testimony. I
then address the difficulty in evaluating a solution to a problem that
has not clearly been identified. Third, I discuss the myriad of
questions raised by S. 1466, questions which must be answered before
next steps toward any solution can be taken. Finally, I review specific
provisions of S. 1466 by way of illustrating significant problems with
the Act, whether they be related to an evisceration of a public
process, a seeming increase in land entitlement beyond that provided
for in current law, an unwarranted and unreviewable change in land
management policies, or which raise other concerns.*
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* For their assistance in preparing this testimony, I would like to
thank Pam Miller of Arctic Connections, Becca Bernard, Bob Randall,
Shocky Greenberg, Tom Ofchus and Steve Higgs of Trustees for Alaska,
and Chip Dennerlein.
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INTRODUCTIONS
I provide this testimony as an attorney with over a decade of
experience working on public land issues in Alaska. I work with
Trustees for Alaska, which is a non-profit environmental public
interest law firm. In this capacity, I have counseled and represented
numerous Alaska-based and national conservation organizations, Native
tribes, villages and other entities. On behalf of these clients, I have
litigated numerous lawsuits concerning public land in Alaska. I have
counseled and represented clients on state and federal administrative
decisions authorizing activities on and transfers of public land in
Alaska. This broad range of experience has made me familiar with
legislation concerning public land in Alaska.
Trustees for Alaska itself was organized over a quarter century ago
to provide counsel to protect and sustain Alaska's environment.
Trustees has been involved in public land issues in Alaska since the
approval and construction of the Trans-Alaska Pipeline System across
federal and state lands. Indeed, there have been few significant
environmentally-related public land issues in Alaska since Trustees'
establishment on which Trustees has not been involved. I thus also
bring to bear in this testimony Trustees' significant institutional
knowledge of public land issues in Alaska.
Alaska Center for the Environment is a non-profit environmental
advocacy and education organization dedicated to the conservation of
Alaska's natural resources. Since 1971, it has worked to promote sound
environmental policy and programs in the south-central Alaska area and
statewide. Its mission is to protect Alaska's natural ecosystems and
quality of life through grassroots activism and public education. With
8,000 dues-paying members from around the state, Alaska Center for the
Environment works to build coalitions, educate the public, and promote
citizen participation in government.
The Alaska Wilderness League supports legislative and
administrative initiatives to defend and protect the Arctic National
Wildlife Refuge, Alaska's forests, and other Wilderness-quality lands
in Alaska. Since 1993, the Alaska Wilderness League has worked to
promote national and local recognition of Alaska's environment through
public education, and it has provided leadership within the
environmental community on selected issues that concern Alaska.
The National Parks Conservation Association (NPCA) was founded in
1919. With more than 400,000 members, NPCA is America's only private,
nonprofit citizen organization dedicated solely to protecting,
preserving, and enhancing the National Park System in the United
States.
The Natural Resources Defense Council (NRDC) uses law, science, and
the support of more than 400,000 members nationwide to protect the
planet's wildlife and wild places and to ensure a safe and healthy
environment for all living things. NRDC's purpose is to safeguard the
Earth: its people, its plants and animals and the natural systems on
which all life depends. NRDC affirms the integral place of human beings
in the environment.
The Northern Alaska Environmental Center promotes conservation of
the environment in Interior and Arctic Alaska through advocacy,
education, and sustainable resource stewardship. The Northern Center
focuses primarily on habitat protection through environmentally-sound
land management and allocation decisions. Top concerns include securing
Wilderness designation for the Arctic National Wildlife Refuge,
defending the wilderness qualities' of national parks and refuges,
protecting wild rivers, and promoting sustainable multiple uses of the
Alaska boreal forest.
The Sierra Club is America's oldest and largest grassroots
environmental organization with 700,000 members working together to
protect communities and the planet. The Alaska Chapter of the Sierra
Club is the local grassroots arm of the national Sierra Club. The
Alaska Chapter works to protect and restore the quality of the natural
and human environment, and emphasizes wildlife protection and habitat
conservation. Issues addressed by the Chapter include management of
national parks, national wildlife refuges, and national forest
wilderness, as well as offshore oil and gas exploration.
The Wilderness Society (TWS) is devoted to preserving wilderness
and wildlife, protecting America's prime forests, parks, rivers, and
shorelines, and fostering an American land ethic. With its nationwide
membership and a staff of lawyers, scientists, economists, and policy
experts, TWS plays a leading role in a variety of natural resource
issues. TWS has as its primary focus in Alaska environmentally sound
management of federal conservation areas and the proper implementation
of the Alaska Lands Act.
THERE HAS BEEN LITTLE TO NO PUBLIC DISCUSSION OF THE CAUSE AND SCOPE
OF THE CURRENT LAND TRANSFER PROBLEM
S. 1466 is a massive, complex piece of legislation. And yet there
has been exceedingly little public discussion of the problems it seeks
to solve or justification for the large breadth of the Act. Thus, it is
hard to discern exactly what problems the legislation is intended to
address or why it needs to be so broad in language and effect.
Senator Lisa Murkowski issued a press release when she introduced
the legislation to the U.S. Senate. http://murkowski.senate.gov/
Press%20Releases/7-28.html. (visited August 5, 2003) (``Press
Release''). In the release she did provide some helpful, albeit brief,
explanation of what the legislation is intended to accomplish. Senator
Murkowski also explained her view that the federal government has been
too slow in completing land transfers to those with land entitlements.
Yet, the press release does not explain the difficulties the federal
government has encountered in completing these exchanges in a timely
manner, nor tie the provisions in the Act to a particular problem.
Notably, Senator Murkowski also appears to state that the Act is
intended to address only land entitlements as they exist under current
law. For example, Senator Murkowski stated that ``[u]ntil we accelerate
the conveyance to both the State and Native corporations, Alaskans
can't efficiently manage their land holdings meaning Alaskans continue
to be hampered in our efforts to develop Alaska to produce a meaningful
economy for our citizens.'' Id. (emphasis added). Nowhere in the
release does the Senator suggest that the standards in the current
system, designed to protect both the public and the eventual landowner,
are the cause of any problem. Yet, as described in more detail below,
the Act appears to create significant new land entitlements and
diminish, or even eliminate, some of these important standards.
The Department of the Interior's Bureau of Land Management (BLM) is
the clear source of the Act. See ``A New Approach To The Finalization
Of The Alaska Land Transfer Program.'' (BLM Powerpoint Presentation
dated March 19, 2003). BLM's justification for the Act should be
helpful in understanding its provisions and effect. In BLM's
presentation, BLM states that it has ``developed a comprehensive
strategic management plan for the completion of all Alaska land
entitlements.'' (Id., Frame 2). Nowhere in the presentation does BLM
suggest a new policy to either increase land entitlements or change the
standards. Neither does it address the remarkable provision, discussed
below, providing Interior sole and unreviewable authority to change
land uses on literally millions of acres of land it manages in Alaska.
By June of this year, the Interior Department had crafted the
proposed legislation which ultimately became S. 1466. Draft
Legislation, Alaska Land Transfer Acceleration Act of 2003, Transmitted
from the DOI to Senate Energy Committee June 5, 2003. It is obvious in
reviewing this draft, as well as S. 1466 as ultimately introduced by
Senator Murkowski, that its scope is expanded well beyond whatever
purpose can be discerned from the public record.
In fact, while not yet used in this context, traditional vehicles
exist to explore problems and assist in the development of solutions,
and these should be used here as well. For example, Congress could hold
oversight hearings to evaluate the current land conveyance program and
identify difficulties in its implementation. A full slate of
recommended solutions--administrative and legislative if necessary--
could then be crafted.
Moreover, the Department of the Interior could prepare an
administrative analysis of its land conveyance program, its
difficulties in implementing the program, and its proposed solutions.
Indeed, this analysis could conform quite readily to the process for
such federal actions required under the National Environmental Policy
Act, thus efficiently moving the issue forward to an expeditious
resolution.
In fact, the reality that the Interior Department initially drafted
the Act strongly counsels that it use the NEPA process for its
continued involvement with the Act. Under NEPA, actions undertaken by
federal agencies, including proposals for legislation, must undergo
this process. 42 U.S.C. 4332(2)(C); see generally, Flint Ridge Dev. Co.
v. Scenic Rivers Assn., 426 U.S. 776, 785-88, 96 (1976). The NEPA
process serves two purposes: ``First, it should provide federal
agencies with an environmental disclosure sufficiently detailed to aid
in the decision whether to proceed with the project or program in light
of its environmental consequences. Second, the statement will provide
the public with information on the agencies' proposed action as well as
encourage public participation in the development of that
information.'' State of Alaska v. Carter, 462 F.Supp. 1155, 1159 (D.
Alaska, 1978); see also Comment, Impact Statements on Legislative
Proposals: Enforcing the Neglected Half of NEPA's Mandate, 7 Envtl. L.
Rep. 10145 (1977).
The White House's Council on Environmental Quality (CEQ) developed
regulations on the implementation of NEPA to which the Courts grant
substantial deference. See Andrus v. Sierra Club, 99 S.Ct. 2335, 2341
(1979). These regulations define legislation developed by an agency as:
A bill or legislative proposal to Congress developed by or with
the significant cooperation and support of a Federal agency. .
. . The test for significant cooperation is whether the
proposal is in fact predominantly that of the agency rather
than another source. Drafting does not by itself constitute
significant cooperation.
40 C.F.R. Sec. 1508.17; see State of North Dakota v. Andrus, 483
F.Supp. 255, 260 (D.N.D. 1980) (``significant cooperation'' test
satisfied when federal agency did ``leg work'' for legislative
proposal).
The Interior Department's work on S. 1466 would thus seem to fit
squarely within these rules.
A senator could also request that the Congressional Research
Service (CRS) review and summarize the proposed legislation as
currently drafted. Reports from CRS historically provide common sense
interpretations of legislative issues and thus likely would shed light
on the many questions surrounding S. 1466.
Finally, to the extent that Senator Murkowski intends the Act to
resolve land ownership issues in order ``to produce, a meaningful
economy for our citizens,'' Press Release at 1, the facts do not appear
to support the reality of that goal. As was discussed in the Anchorage
Daily News just yesterday.
There is no evidence that increasing the supply of private
land will stimulate Alaska's economy. Montana, North and South
Dakota, and Wyoming all share the dubious distinction of having
lots of private land per capita but chronically anemic
economies. Much as rain does not follow the plow, money does
not grow in wide-open spaces.
Meiklejohn, No Shortage Of Private Land Here, Compass Piece,
Anchorage Daily News (Page B-4, August 5, 2003). Notably, Alaska has
more private land per person than any other state in the nation, with
``more than 70 acres for every one of [its] 650,000 residents.'' Id.;
see also Hull, Leask, Dividing Alaska, Institute of Social and Economic
Research, UAA, www.iser.uaa.alaska.edu/landswebfiles/lands.pdf (visited
August 5, 2003).
THE SCOPE AND EFFECT OF S. 1466 IS UNCLEAR
The complicated provisions of the Act defy easy explanation and
raise questions which the Act's proponents should answer before this
Act moves any further. The following are some, and yet by no means all,
of these questions:
How long has this proposed legislation been under consideration by
Department of the Interior officials?
What study has been undertaken to determine the specific steps
needed to achieve the stated purposes of the act, to ``accelerate''
fulfillment of conveyances under the Alaska Statehood Act and the
Alaska Native Claims Settlement Act (ANCSA)?
What information about specific problems with land conveyances and
difficulties in resolving disputes was provided by the DOI or its
agencies that was considered in the drafting of this Act?
What information was provided by Senator Murkowski and/or Senator
Stevens that was used by the Department when it drafted the initial
bill?
What information has been provided to Senators Stevens or Murkowski
regarding problems with land conveyances, including any such
information for lands within the external boundaries of Conservation
System Units (CSUs)? Act?
How many acres of land within CSUs are affected or potentially
affected by this?
Where specifically are these lands located (e.g. in which Parks,
Refuges, Wilderness areas)?
Are there any ongoing land or boundary disputes between the State
of Alaska and the United States concerning land within or near a
National Wildlife Refuge, National Park or other CSU?
How much will or could the State entitlement increase under this
Act?
How much will or could the Native regional corporation entitlement
increase under this Act?
How much will or could the Native village corporation entitlement
increase under this Act?
Could new land exchanges be considered during the negotiations
authorized by the Act?
Would new land exchanges need congressional approval if this Act is
passed into law?
Could the Department of the Interior address the status or validity
of R.S. 2477 rights of way under this Act?
Could the Department of the Interior resolve submerged land status
or claims for navigable waters under this Act?
On what lands for which the federal government currently retains a
reversionary interest may the State file selections under this Act?
On what lands may the University of Alaska file selections to
fulfill its remaining entitlement under this Act?
How much land may he converted to state land by the relinquishment
of federal mining claims and conversion to state claims under this Act,
and how much of this land would be charged against the State's
entitlement?
What is the overall cost of this Act to the United States?
WHAT CAN BE UNDERSTOOD ABOUT S. 1466 IS THAT IT COULD AFFECT PUBLIC
LANDS IN ALASKA IN SIGNIFICANT AND DAMAGING WAYS
As discussed above, we do not nearly have sufficient information to
fully understand the purposes or implications of this complex Act.
Nevertheless, serious problems with portions of the Act are beginning
to emerge. While improving the land transfer process to achieve final
resolution of land ownership issues is in everyone's interest, this Act
goes well beyond that goal. For many of the federal decisions it
covers, it eliminates public and judicial review, sanctions ignorance
of the impacts. of such decisions on the environment or subsistence,
and significantly changes the land patterns, uses, and protective
procedures that Congress deliberately established for certain areas.
Provisions illustrating these points are discussed below. While we
certainly oppose these provisions, this discussion does not represent
the sum total of our concerns. Indeed, our views are certain to evolve
as more information on S. 1466 is revealed, the many questions are
answered, and as we continue to analyze the Act.
Section 106
This section authorizes the Secretary to negotiate an agreement
with the State concerning any aspect of its remaining land entitlement.
The issues that can be negotiated include, but do not seem to be
limited to, the exact number and location of acres remaining to be
conveyed to the State under its Alaska Statehood Act and University
Lands Act entitlements; the priority of conveyances; relinquishment of
selections that will not be conveyed; and the survey of exterior
boundaries. This section, in effect, takes the completion of the
State's land entitlement--including the exact number of acres left to
be conveyed--out of the regular administrative process and subjects it
to informal negotiations between the Federal and State governments.
There is nothing in this provision or in any part of the Act that
requires public involvement in these negotiated decisions, so the
public could be left entirely in the dark as to the procedure to be
used, the standards to be applied or the result to be reached.
There may be some logic in allowing negotiations and agreements to
finally resolve entitlement issues, but not if the process excludes
public participation and other safeguards to rational decisionmaking.
It is a mistake of historic proportions to give the Secretary
unfettered discretion to informally resolve important questions of land
transfer and entitlement. Indeed, laws such as the Administrative
Procedures Act were put in place by Congress in direct reaction to the
kind of arbitrary and capricious decisionmaking that can occur under
provisions such as this. It is also unclear whether the negotiation
authority in this provision is bounded by the restrictions that
otherwise apply to State selections and conveyances under the Statehood
Act, ANCSA, Alaska National Interest Lands Conservation Act (ANILCA),
and other laws, such as limitations on conveyance of lands within CSUs.
Section 107
This section provides an easier process by which federal mining
claimants can relinquish their claims and convert them to State claims
so that the encumbered land may be conveyed to the State. It is
entirely unclear that this provision is in the public interest. There
are many differences between federal and state regulation of mining,
and the cumulative effect of these differences may be that federal
mining claims will be subject to less-stringent environmental
regulation if they are converted to state claims.
This section also provides that where the converted federal claims
are surrounded by State lands, the lands encumbered by the formerly
federal claims maybe conveyed to the State without charge to the
State's entitlement. This could result in the State receiving title to
thousands more acres than it is entitled to under the Statehood Act and
other laws. There is no reason to expand, or create new, entitlements,
and it is especially inappropriate to include such a provision in a
bill the announced intent of which is to bring closure to State and
Native land entitlements and conveyances.
Section 108
This section allows for the conveyance to the State of lands
mistakenly omitted or relinquished from existing selections. if the
State can satisfy the Secretary that a mistake was made. This provision
lacks any standards to guide the Secretary's determination of such an
allegedly mistaken omission or relinquishment and therefore poses the
risk that erroneous determinations will be made.
Section 201
This section allows for conveyance of lands within a Village
corporation's township selections that have only recently become
available, because it authorizes the Secretary to waive the 69,120-acre
limit on conveyances of land within national wildlife refuges. The
69,120-acre limit is part of the complex congressional compromise
embodied in ANCSA. This limit provides protection against the
proliferation of private inholdings within national wildlife refuges.
Section 203
This section provides that when a Native corporation's entitlement
will be satisfied by conveyance of the next prioritized section of 640
acres, the Secretary and the corporation can agree that conveyance of
that section will complete the corporation's entitlement. While this
may be an easier way than under current law to bring closure to a
particular corporation's entitlement, it also means that each Native
corporation with some remaining entitlement could receive as much as
640 acres more than what it is entitled to under ANCSA. Once again, we
see no reason for existing entitlements to be expanded, especially in a
bill that purportedly is intended to bring closure to the existing land
conveyance process.
Section 204
This section gives the Secretary discretion to waive the existing
prohibition on conveyance to the regional corporations of subsurface
rights inside pre-ANCSA national wildlife refuges. That prohibition
was, once again, part of the carefully crafted compromise of ANCSA. and
there is no justification for altering that compromise now.
Section 207
The purpose of this provision is to bring some closure to the
Native corporations' entitlement under Section 14(h)(8) of ANCSA, which
creates a pool of two million acres of land to be allocated among the
regional corporations based on population. The section declares that
255,000 acres is the regional corporations' collective entitlement.
While we are sympathetic with the need to find a way to satisfy the
corporations' 14(h)(8) entitlement, we object to the Act's overly-
generous acreage figure of 255,000 acres. The BLM's most recent
estimate of the remaining 14(h)(8) entitlement was 180,000-200,000
acres. Again, there is no reason for this bill to expand the
corporations' existing entitlement, especially when some of the land
may be conveyed from CSUs.
Section 209
While it has stiff competition for the title, Section 209 is
perhaps the most egregious and non-germane provision in this Act. It
effectively exempts most BLM lands in Alaska from the Federal Land
Policy & Management Act rules for land use planning. It does this by
authorizing the Secretary to open or close BLM lands withdrawn under
Section 17(d)(1) of ANCSA to any form of appropriation or use under the
public land laws without environmental or judicial review and without
an opportunity for public comment. This would apply to the majority of
the millions upon millions of acres managed by BLM in Alaska. This
section is simply astounding in its elimination of such important
safeguards on the federal government's management of millions of acres
of our public lands.
Section 212
This section allows the Secretary to negotiate agreements with
Native corporations on any aspect of their remaining entitlement. The
issues covered by such agreements could include amount and location of
their remaining entitlement; priority of conveyances; relinquishment of
selections that won't be conveyed; selection entitlement to which
selections are to be charged regardless of the entitlement under which
originally selected; survey of exterior boundaries and the additional
survey to be done under Section 14(c) of ANCSA; and resolution of
conflicts with Native allotment applications. This provisions uses the
same structure as that used in Section 106, and our comments on that
section are thus generally applicable here as well.
Section 213
This section authorizes the conveyance to Kaktovik Inupiat
Corporation of an uncertain number of acres within the coastal plain of
the Arctic National Wildlife Refuge, and to Arctic Slope Regional
Corporation of an unidentified number or location of acres of
subsurface rights within the same. This provision is not justified
bylaw or equity, and can only be intended to add momentum to the ill-
advised effort to drill for oil on the coastal plain of the Arctic
Refuge.
Sections 401 and 402
These sections provide for development of regional and Village
plans for completing land conveyancing by the year 2009. While we
support in concept the notion of planning, these sections lack
provisions for public participation.
Section 501
This section authorizes the creation of an entirely new appeals and
hearing process to take the place of the Interior Board of Land Appeals
where Alaska land entitlement and conveyance issues are involved. It
also authorizes the Secretary to publish regulations establishing rules
for the appeal and hearing process without first taking public comment
on draft regulations as is usual under the Administrative Procedure
Act. We believe it would be inefficient and not cost-effective to
create an entirely new appeals board and procedural rules, and such
rules should not be promulgated without public participation.
CONCLUSION
While S. 1466 masquerades as a ministerial bill to expedite
existing land entitlements in Alaska, in reality it proposes huge
changes to existing laws, land entitlements and land use policies.
Indeed, it seems designed to expeditiously appropriate public resources
for private gain without any apparent public benefit.
As an initial matter, proponents of these measures, whether they
are in Congress or administrative agencies, should evaluate issues of
this magnitude through a thorough and transparent public process before
legislation is introduced to Congress. While it is not too late to
initiate such a process, it certainly has not happened in this case.
Additionally, the Act's proponents have presented no clear
statement of a problem that justifies the massive scope of this Act.
Proponents have also not disclosed the effects that such broad
legislation will have on public lands in Alaska, information that
should be available as a starting point for a discussion on proposed
congressional action of this magnitude.
Alarmingly, the Act increases non-federal land entitlements and
allows for a change in land use authorities for literally millions of
acres of public lands. And, remarkably, it limits or completely
excludes the public from land conveyance and land use decisions, and
insulates many of the decisions from review by the independent
judiciary. As history has shown, providing such vast discretion to
administrative agencies leads to arbitrary and capricious
deeisionmaking, and harms the very benchmarks of democracy in the
process. Such provisions run afoul of basic public trust principles.
In accelerating the transfer of lands the federal government must
take care not to make changes in fundamental policies and processes
that were adopted in the context of The Statehood Act, ANCSA, ANILCA
and other laws regarding Alaska's public lands. As currently presented,
S. 1400 crushes under the weight of unrelated and unjustified
provisions the kernel of truth that land transfer in Alaska has faced
challenges which could benefit from increased attention by all
interested parties. The Act's proponents should recognize this and
initiate an inclusive and transparent process to identify and craft
solutions for the legitimate issues that face the federal government
and. all Alaskans in expeditiously concluding complex and far-reaching
land ownership issues. Should this occur, the conservation community
undoubtedly will stand shoulder-to-shoulder with other Alaskans and
Americans to resolve this issue.
Senator Murkowski. Thank you. I appreciate it. Just for the
record, you indicated that you had testimony from other
individuals or groups, and those will be submitted into the
record, as with any other written statement. So we appreciate
you bringing those today.
Mr. Van Tuyn. Thank you, Senator.
Senator Murkowski. Next let's go to Mr. Bruce Borup, CEO of
Cape Fox Corporation.
STATEMENT OF BRUCE BORUP, CEO, CAPE FOX CORPORATION
Mr. Borup. Thank you for the opportunity to testify. In
your introduction to this legislation, you succinctly described
some of the issues facing Cape Fox: The 6-mile exclusion, the
inability to select land within the Annette Indian reservation,
and other Federal and ocean reserves.
The bottom line is no other community or village
corporation in the State has had so much land denied from the
original mandated selection rights as Cape Fox. Let me describe
what that means to the community members. The village of Saxman
has 431 residents. The unemployment rate in Saxman is 256
percent, almost 420 percent of the State unemployment rate.
Economic development and job creation is critical to the
survival of this village. Even a handful of new jobs can create
an enormous impact on this community. Tourism is driving
economic development at the moment in Ketchikan, and we are
creating jobs, but those are low-paying jobs, many of them
minimum wage.
Development of the Kensington gold project will bring
significant economic benefits to southeastern Alaska. The
project will add 225 direct high-paying job at a payroll cost
of $16 million. It will also create up to an additional 180
indirect jobs and add an additional tax base to the region.
This project is projected to last 15 years, including
construction, startup and reclamation periods. Construction
alone would inject an estimated $150 million into the economy.
To date, Coeur has invested over $22 million at the site on
environmental baseline studies, permitting, and environmental
impact statements. The Coeur d'Alene Mines Corporation is an
environmentally-responsible operator, having been acknowledged
by 19 national and international environmental awards since
1987. Coeur is strongly committed to sound resource development
and economic diversity in the State of Alaska.
Cape Fox Corporation also has a long-established reputation
for private lands management and has always worked with public
agencies to provide access when it makes sense. Cape Fox works
closely with the U.S. Forest Service, the U.S. Fish and
Wildlife, Corps of Engineers, the State Department of Fish and
Game as well as many other agencies to ensure that all lands
are managed safely and responsibly. In fact, our board of
directors of Cape Fox Corporation recently designated its White
River area as a Cape Fox Rain Forest Reserve and is developing
a private lands management plan for the enhancement of wildlife
within that area.
The lands to be exchanged do not include any land within
Berners Bay LUD II area, which is an important recreational
area for local residents. Concerns about massive clear cutting
near Berners Bay are totally unfounded. There is little timber
on the land to exchanged that has commercial value, and Cape
Fox has no plans to log in this area. Cape Fox is just doing
our part to enhance the economic development and creation of
jobs in southeast Alaska so that wage-earners can support their
families.
Additionally, our work in the Cape Fox Rain Forest
Preserve, which is in part being modeled after the Dye Creek
Preserve in Redding, California, owned by the Nature
Conservancy, would itself serve as a future model for similar
wildlife preserves for this area. In fact, Cape Fox intends to
utilize the same model and access the same wildlife restoration
resources that the major conservation agencies represented
today have utilized for decades in the Lower 49 States to
restore and conserve wildlife properties they control.
Thank you for the opportunity to speak today.
[The prepared statement of Mr. Borup follows:]
Prepared Statement of Bruce Borup, CEO, Cape Fox Corporation
INTRODUCTION
Cape Fox Corporation is the ANSCA Corporation for the Native
Village of Saxman, near Ketchikan, Alaska. As with other ANCSA village
corporations in Southeast Alaska, Cape Fox was limited to selecting
23,040 acres under Section 16 of ANSCA. However, unlike other village
corporations, Cape Fox was further restricted from selecting lands
within six miles of the boundary of the home rule City of Ketchikan.
The City of Ketchikan is the fourth largest city in the state and the
second largest in southeast. Ketchikan is the single largest city to
impact any of the 200 village corporations created by ANCSA. In
addition, Ketchikan has the highest percentage of ocean and federal
reserves of any ANCSA village in the state, further limiting the
opportunity to secure an equitable ANCSA settlement. No other community
or village corporation in the state has had so much land denied from
their original mandated selection rights. All other ANCSA corporations
were restricted from selecting within two miles of such a home rule or
city.
The six mile restriction went beyond protecting Ketchikan's
watershed and damaged Cape Fox by preventing the corporation from
selecting valuable timber lands, industrial sites, and other commercial
property, not only in its core township but in surrounding lands far
removed from Ketchikan and its watershed. As a result of this
restriction, only the mountainous northeast corner of Cape Fox's core
township, which is of no economic value, was available for selection by
the corporation. Cape Fox's land selections were further limited by the
fact that the Annette Island Indian Reservation is within its selection
area, and those lands were unavailable for ANCSA selection. Cape Fox is
the only ANCSA village corporation affected by this restriction.
ECONOMIC DEVELOPMENT
The village of Saxman has 431 residents. The unemployment rate in
Saxman is 25.6%, almost 420% of the State unemployment rate. Economic
development and job creation is critical to the survival of families in
this village. Even a handful of new jobs can create an enormous impact
on this community.
Coeur Alaska Inc is headquartered in Juneau and owns patented lands
and mining leases that encompass the Kensington and Jualin mine sites
in the Tongass National Forest, 45 miles north of Juneau. Gold was
first discovered in this area in 1886. These mines operated in various
stages until 1935. Since 1987, Coeur has made significant investments
to reopen and operate the Kensington Mine, using modern technology to
recover its remaining gold ore.
The lands to be exchanged surround Coeur's patented lands and are
heavily encumbered by 12,792 acres of unpatented mining claims.
According to the Tongass Land and Resource Management Plan, the
National Forest lands encompassing these unpatented claims are zoned
for mining development. Transfer of these lands to Cape Fox and
Sealaska will not affect the mining claim rights or represent a
deviation from the Tongass Management Plan. Rather, the transfer will
eliminate complicated claim and patented land boundaries, saving the
public considerable administrative costs.
Development of the Kensington Gold Project will bring significant
economic benefits to Southeastern Alaska. The project will add 225
direct high paying jobs at a payroll cost of $16 million, create up to
an additional 180 indirect jobs, and add an additional tax base to the
region. This project is projected to last 15 years, including
construction, startup and reclamation periods. Construction alone would
inject an estimated $150 million into the economy. To date, Coeur has
invested over $22 million at the site on environmental baseline
studies, permitting and environmental impact studies. Although the
project has previously received all its major environmental permits,
Coeur is presently working closely with public agencies on the
preparation of a second SEIS to support the permits required to reopen
and operate the mine.
The Coeur d' Alene Mines Corporation is an environmentally
responsible operator, having been acknowledged by 19 major national and
international environmental awards since 1987. Coeur is strongly
committed to sound resource development, and economic diversity in
Southeast Alaska and is required to provide financial assurances for
all reclamation requirements. Cape Fox Corporation also has a long
established reputation for responsible private lands management and has
always worked with public agencies to provide access when it made
sense. Cape Fox works closely with the U.S. Forest Service, U.S. Fish &
Wildlife, the Corps of Engineers and the State Department of Fish &
Game as well as many other agencies to ensure that our lands are
managed safely and responsibly. In fact, the Board of Directors of the
Cape Fox Corporation recently designated its White River area as the
``Cape Fox Rainforest Preserve'' and is developing a private lands
management plan for the enhancement of wildlife within that area.
The lands to be exchanged do not include any land within the
Berners Bay LUD 11 area, which is an important recreational area for
local residents. Concerns about massive clearcutting near Berners Bay
are totally unfounded. There is little timber on the land to be
exchanged that has commercial value, and Cape Fox has no plans to log
in this area. Cape Fox is focusing on doing our part to enhance the
economic development and creation of jobs in Southeast Alaska.
Additionally, our work in the Cape Fox Rainforest Preserve, which in
part is being modeled after the Dye Creek Preserve in Redding,
California, owned by The Nature Conservancy, would itself serve as a
future model for a similar wildlife preserve for this area. In fact,
Cape Fox intends to utilize the same model and access the same wildlife
restoration resources that the major conservation agencies represented
here today have utilized for decades in the Lower 49 states to restore
and conserve wildlife properties they control.
Thank you for the opportunity to speak with you today.
Senator Murkowski. Thank you, Mr. Borup. I appreciate you
coming this morning. Next let's go to Mrs. Rosa Miller, tribal
leader of the Auk Kwaan. Mrs. Miller.
STATEMENT OF ROSA MILLER, TRIBAL LEADER
OF THE AUK KWAAN
Mrs. Miller. Thank you. Good morning. My name is Rosa
Miller. I'm the tribal leader of the Auk Kwaan, the original
settlers in Juneau. Traditional Auk territory extended from
Berners Bay to Seymour Canal. I would like to thank Chairman
Craig and the members of the subcommittee for inviting me to
testify today. While Anchorage is much closer to Juneau than
Washington, D.C., is, it is still over one thousand miles away
from Juneau.
This is a very long and difficult trip for me. I
respectfully request the subcommittee hold another hearing in
Juneau on this bill and learn about Berners Bay and its
importance to the Auk Kwaan and the other residents of Juneau.
I respectfully submit the following statement into the official
record of the subcommittee hearing on behalf of myself and the
other members of my tribe.
On behalf of the Auk Kwaan, I wish to strongly object to S.
1354, the Cape Fox Land Entitlement Adjustment Act of 2003.
This bill gives Cape Fox and Sealaska Corporation public lands
near Slate Lake in the Berners Bay watershed, our ancestral
land. This is the very same area where Coeur Alaska hopes to
make money by dumping its mine tailings. Today, I want to
explain how important these ancestral lands are to the Auk
Kwaan. We used to have several villages in Berners Bay, and
where there were villages were burial sites. We're afraid that
development of these lands will decimate our burial sites.
There has been enough of such desecration. When is it going to
stop? There is also a mountain located at Berners Bay, Spirit
Mountain, also know as Lionshead Mountain, which is sacred to
us because our Shaman spirits dwell in it. Many times I have
told stories about our ancestors who are buried here.
Spirit Mountain is a place that is important to the Tlingit
of the past, the present, and the future. S. 1354 proposes to
give away our ancestral lands to both Sealaska and Cape Fox
Corporation. In the old days, when you traveled to someone
else's territory, you could not land your canoe until you had
permission from the clan who lived in the area. We have heard
absolutely nothing from either corporation about their
intentions for our lands in Berners Bay. We fear that the
relentless drive for corporate profits will override culture,
tradition, and the protection of sacred grounds. Berners Bay is
also very important as an increasingly vital source of
traditional foods and herbal medicine.
Over the years, as Juneau has grown, we have needed to
travel further and further to find our traditional foods, such
as berries, wild asparagus, as well as herbal medicines. These
foods and medicines remain in abundance in Berners Bay today.
Each year that passes increases the importance of Berners Bay
as a source for these traditional foods and medicines.
When I learned that this bill would be considered at this
hearing in Anchorage, I wrote Senator Lisa Murkowski and
requested that a hearing be held in Juneau on this bill. After
all, it's not Anchorage's sacred and recreational lands that
will be given away to corporate interests if this bill goes
through. I pray that you, as our leaders, will be fair to the
people whose lives will be directly affected by the passage of
this selection. Please do not rush this bill.
We feel that each of you, especially Senator Murkowski,
must come to Juneau to learn about Berners Bay and the
importance to the Auk Kwaan and the other residents of Juneau.
On behalf of the Auk Kwaan, I implore you: Please do not give
away our land. It is the only thing we have left. We know that
you have a heart to do what is morally and ethically right and
withdraw this harmful bill. With your permission, I also wish
to submit the following testimony prepared by the Southeast
Alaska Conservation Council on this bill into the official
record for this field hearing. Thank you for the opportunity to
share our concerns with this bill with you.
[The prepared statement of Mrs. Miller follows:]
Prepared Statement of Rosa Miller, Tribal Leader of the Auk Kwaan
My name is Rosa Miller, and I am the Tribal Leader of the Auk
Kwaan, the original settlers of the Juneau area. Traditional Auk
territory extended from Berners Bay to Seymour Canal. I would like to
thank Chairman Craig and the members of the- Subcommittee for inviting
me to testify today. While Anchorage is much closer to Juneau than
Washington D.C., it is still over 1,000 miles away from Juneau. I
respectfully request the Subcommittee to hold another hearing in Juneau
on this bill and learn about Berners Bay, our ancestral lands, and its
importance to the Auk Kwaan and the other residents of Juneau.
The following statement is submitted on behalf of myself, and the
other members of my tribe. I respectfully request that this written
statement and accompanying materials be entered into the official
record of this Subcommittee hearing.
On behalf of the all the members of the Auk Kwaan, I wish to
express our strong objection to Senate Bill 1354, the Cape Fox Land
Entitlement Adjustment Act of 2003. This bill allows the Cape Fox
Corporation to exchange private timberlands near Ketchikan for public
lands near Slate Lakes, in the Berners Bay watershed. It also allows
Sealaska Corporation to exchange subsurface rights to several thousand
acres for lands alongside those given to Cape Fox in Berners Bay. This
is the very same area where Coeur Alaska, operator of the Kensington
Gold Project, hopes to make money by dumping its mine tailings.
Today, I want to explain how important these ancestral lands are to
the Auk Kwaan. We used to have several villages near Berners Bay; and
where there were villages, there are burial sites. We are afraid that
the development of these lands will result in the desecration of our
burial sites. There has been enough of such desecration; when is it
going to stop!
There is a also a mountain located at Berners Bay, Spirit Mountain
(also known as Lionshead Mountain), which is sacred to us because all
our Shaman spirits dwell in it. Many times I have told stories about
our ancestors who are buried here. Spirit Mountain is a place that is
important to the Tlingit of the past, the Tlingit of the present, and
the Tlingit of the future.
Over the years, as Juneau has grown, we have needed to travel
farther and farther to find our traditional foods, such as berries and
wild asparagus, as well as herbal medicines. These foods and medicines
remain abundant in Berners Bay. As each year passes, the importance of
the resources in Berners Bay increases as we depend on them more and
more.
Senate Bill 1354 proposes to give away our ancestral lands to both
the Sealaska and Cape Fox Corporations. In the old days, when you
traveled to someone else's territory, you could not land your canoe
until you got permission from the clan who lived in the area. We've
heard absolutely nothing from either corporation about their intentions
for our lands in Berners Bay. We are afraid that the development of
these lands will desecrate our burial sites. We fear that the
relentless drive for corporate profits will override culture,
tradition, and the protection of sacred grounds. This fear is based on
the history of over thirty years of land development activities by
Sealaska, Cape Fox, and other Native village corporations in Southeast
Alaska. For your information, I am submitting for the record A Clearcut
Legacy, a two-part series that appeared in the Anchorage Daily News in
February, 2001 (Exhibit 1).*
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* The exhibits have been retained in subcommittee files.
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When I learned that this bill would be considered at this hearing
in Anchorage, I wrote Senator Lisa Murkowski and requested that a
hearing be held in Juneau on this bill. After all, it is not
Anchorage's sacred and recreational lands that will be given away to
corporate interests if this bill goes through. Attached to this
testimony (Exhibit 2) is a copy of the letter I wrote Senator Lisa
Murkowski, with copies of the letters 1, had previously written her
father, now-Governor Frank Murkowski, when he was Senator.
In closing, I pray that you, as our leaders, will be fair to the
people whose lives are most directly affected by passage of this
legislation. Please do not rush this bill. We urge you to come to
Juneau to learn about Berners Bay and its importance to the Auk Kwaan
and the residents of Juneau.
On behalf of the Auk Kwaan, I implore you, PLEASE DO NOT GIVE AWAY
OUR LAND. It is the only thing we have left. We hope that you will have
the heart to do what is morally and ethically right and withdraw this
harmful bill now.
Senator Murkowski. Thank you, Mrs. Miller. Also, that
additional testimony will be included in the record. Thank you
for bringing it.
And the last panelist, Mr. Tim Verrett, borough attorney
from the Bristol Bay Borough in Naknek. Good morning and
welcome.
STATEMENT OF TIMOTHY C. VERRETT, BOROUGH ATTORNEY, BRISTOL BAY
BOROUGH
Mr. Verrett. Good morning, Senator, and thank you for
allowing me the opportunity to testify before this field
hearing.
I'm here to simply testify regarding S. 1421, the authority
to allow Native allottees the ability to subdivide their
allotments. You correctly stated that currently both the
allottee lacks the authority to subdivide and BIA lacks
authority to approve dedication of public ways and utility
easements within subdivisions. This lack of authority has
created significant hardships on allottees by placing under a
cloud current subdivisions that have been approved. That
effects not only the allottees, but also non-Native purchasers
of lots in the subdivision. And it also hampers allottees who
wish to subdivide their allotments.
The borough supports legislation which would allow
allottees to subdivide their property. I think it's fair to say
that the authority to allow an allottee to subdivide their
parcel is fairly noncontroversial. However, I would suggest
that currently S. 1421 has some provisions which are
controversial.
The issue of a lack of authority of Alaska Natives to
subdivide their allotments first arose in Bristol Bay Borough.
We have essentially been on the point of the spear on this
issue. I have participated personally in a number of meetings
to assist in resolving this issue. I have reviewed four
separate drafts of the legislation, in addition to S. 1421.
There has been significant dialogue and debate regarding the
language of draft legislation. It is the Borough's position
that only section S. 1421 is necessary to resolve this issue.
This is a fairly simple real estate issue. It requires a
relatively simple fix that will allow the Alaska Natives to
subdivide their allotments, enjoy the economic benefits of
their land, and assist the citizens, not only of the borough,
but of the State of Alaska.
That's really all the comments I have. Thank you.
[The prepared statement of Mr. Verrett follows:]
Prepared Statement of Timothy C. Verrett, Borough Attorney,
Bristol Bay Borough
Mr. Chairman and subcommittee members, my name is Timothy C.
Verrett and I am the Borough attorney for the Bristol Bay Borough. I
submit this testimony on behalf of the Bristol Bay Borough.
Up until October 2000, the Bureau of Indian Affairs, pursuant to
its trust responsibilities, approved Alaska Natives subdividing their
allotments and dedicating rights-of-ways and utility easements. The BIA
estimates there are 206 such subdivisions of which approximately 21 are
within the Bristol Bay Borough. Lots were sold within the subdivisions
to both Native and Non-Native purchasers. One must assume that the
purchasers relied upon the subdivision plats, which were recorded in
the various recording districts throughout the State of Alaska. All
that changed when a Department of the Interior solicitor issued an
opinion that the BIA lacked the legal authority to execute subdivision
plats dedicating public rights-of-ways and utility easements.
One must remember that the subdivision plats were created and
recorded to comply with either the State of Alaska or local platting
authority requirements for subdivisions. One must assume that the
allotee elected to subdivide his/her allotment to maximize the economic
benefit of the allotment. For the last 2\1/2\ years, the State of
Alaska and local governments have tried to resolve the issue of
dedication with the BIA. BIA's position has been that local governments
and the State of Alaska could apply for easements for public ways under
one of two federal regulations. Both regulations impose significant
legal burdens upon the applicant as a condition of statutory authority
to approve the application. The Bristol Bay Borough, and I believe it
is safe to say other governmental entities, have been unwilling to
undertake the additional legal burden of applying for and accepting
easements for public ways in subdivisions. It is an unreasonable and
unnecessary burden placed upon local governments and the State of
Alaska. The Bristol Bay Borough has declined to review new preliminary
subdivision plats of an allotment as such preliminary plat could not
provide legal access to the subdivision lots and failed to comply with
the requirements of the Bristol Bay Borough platting code and the
platting statutes of the State of Alaska.
Local governments in general, and the Bristol Bay Borough in
particular, have expended significant local resources over the last
2\1/2\ years attempting to resolve a problem which the Bristol Bay
Borough neither created nor wanted. This is an unreasonable economic
burden to place upon local government. The Bristol Bay Borough, in
particular, and I assume other small municipal governments, cannot and
will not continue to expend its very limited local resources to resolve
this problem.
This is a simple real estate problem. The solicitor who initially
issued the opinion that BIA lacked authority to approve dedicated
public ways and utilities, drafted legislation which would solve the
real estate issue. That proposed legislation is attached as exhibit 1.*
Unfortunately, through many months of discussion, the resolution of a
simple real estate problem has spawned draft legislation which now
number 6 pages. There are those who wish to use this real estate issue
as a soap box to promote their individual or personal agendas. We have
groups who wish to use the legislation to advance native sovereignty.
We have groups who wish to use the legislation to advance state's
rights. These agendas are only harming the residents of the Bristol Bay
Borough, both native and non-native alike. The Bristol Bay Borough is
simply interested in solving a simple real estate problem so that its
residents can subdivide their allotments in compliance with the Bristol
Bay Borough Code and State Statutes and enjoy the economic benefits of
their allotments.
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* The exhibit has been retained in subcommittee files.
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The inability of an allottee to subdivide his/her allotment in
compliance with local platting ordinances and/or the state statutes,
places a significant burden upon the allottee. One must assume that the
allottee elects to subdivide his/her allotment to maximize the economic
value of that parcel of property. The inability to subdivide the
allotment in compliance with state statute or local platting ordinances
has the direct effect of diminishing the ultimate economic value of the
allotment. If an allottee should subdivide his/her property without
complying with state statutes or local platting ordinances, which has
been suggested by BIA as an alternative, the economic realities are
that the allottee will not fully recognize the value of the allotment.
There is a significant probability that title insurers will not issue a
title policy without exception. Likewise, financing of the purchase of
lots within a allotment subdivision will most probably be unavailable.
Prospective purchasers and lenders will not undertake the risk that
they will not have legal access to the lots within an allotment
subdivision. The potential purchaser will either choose not to purchase
the lot or significantly reduce the amount it offers an allottee.
Likewise, public utilities will not extend utility services to and
within a subdivision of a native allotment because it will not acquire
the easements and/or right-of-ways necessary to extend those utilities.
The lack of utilities would significantly reduce the overall value of a
subdivision lot within a native allotment subdivision.
There has been a hue and cry from local allottees that have been
unable to subdivide their allotments. These allottees appear to blame
local government for their inability to subdivide their parcels. Local
government and the State of Alaska have an obligation to enforce their
own statutes and/or ordinances. This includes platting statutes which
require legal access and utility easements to subdivisions. Local
governments have expended significant local public resources to assist
its allottee citizens in finding a solution to this real estate
problem. This has placed a significant economic burden upon local
government and the State of Alaska. This economic burden should be
reimbursed by any legislation which provides legal authority to
subdivide native allotments.
Thank you.
Senator Murkowski. Thank you. I appreciate your testimony.
Now, if we may go back in the same order in the which we
started, some questions first to you, Mr. Angapak. What would
you say is the most important issue for the Alaska Federation
of Natives concerning this land transfer act that we're
proposing?
Mr. Angapak. I don't know that I can characterize it as
being the most important issue. However, one of the major
concerns that we have with this bill, and I think it's
correctable, is the issue of prioritization of selected land.
Some of the regional corporations, such as Ahtna, their land
selections are totally surrounded by St. Elias National Park
Service.
This legislation mandates that regional corporations reduce
their over-selections to a finite limit. And that--therein lies
a problem. The ANSCA's corporations necessarily selected their
lands for the resource potential allocated within the lands
that they selected. In order to reduce their priority--their
over-selection, regional corporations necessarily need to do
some resource--additional resource inventory on those
selections.
So we feel that the regional corporations must be given an
opportunity to have access to their selected lands, if, in
fact, they are going to be forced to reduce their over
selection to a finite limit. Short of that, perhaps those
regional corporations whose land selections are located within
National Park Services and that type of thing could be exempt
of the terms and conditions of this bill.
Senator Murkowski. In your testimony, you mentioned
concerns with the title 3, and you commented how this
legislation would remove certain protections that are currently
provided to owners of Native allotments. Can you give me some
additional examples, or go a little bit further in your
explanation there?
Mr. Angapak. Yes, ma'am. We do not question the right of
Congress to carry out their constitutional right to legislate
on behalf the American Indian and Alaska Natives; however, in a
court case called Seminole National v. The United States, the
court ruled that Congress must act with good faith and not
through loyalty for the best interests of the Indian.
Pursuant--in reviewing this bill, there are certain existing
rights that are being eliminated by this bill. For example,
applicants now have the right to amend a description of their
allotment if the Government places the allotment in the wrong
location or the allotment does not contain a correct number of
acres. Section 3 of 4(f)(5) eliminates applicants rights to
amend their applications, even if the Federal Government caused
that error in the first place.
I could go on, but my hope is--I'm pretty confident that
working with you and your staff and those affected parties
insofar as Native allotments are concerned, these existing
rights, and there are at least seven existing rights that are
being eliminated by this bill, that we can tweak the language
in such a manner that the existing rights of the allottees will
be preserved. Because if they are not preserved, I do believe
that that is a violation of our rights, whereby some of our
rights are taken away, constitutional rights are taken away,
because these things are in effect taking our property
interests away without due process.
That is where our major concern over title 3 arises, but
like I said, I'm pretty confident that if we get our heads
together with your staff, some people that are involved with
this issue and have been interested with this issue for a long
time, that we can find and tweak the language so that what is
being eliminated by this bill will be right, and then I think
it's going on to be an excellent bill.
Senator Murkowski. I appreciate your willingness to work
with me and with my staff and committee staff to make this
work, because it does have certain areas, as you point out,
that are critical, and we need to make sure that it's going to
do what it is we're intending to do, so I look forward to
working with you and others within the AFN. I know you
mentioned in your testimony requests for possibly additional
field hearings. I will tell you, and others, that during this
August recess, we have not scheduled any more. As I understand,
I think I get one field hearing a year--is that how it works--
within the committee, so we won't have the opportunity for a
formal hearing as such on this legislation.
We will be having additional hearings back in Washington,
D.C., on these three identical bills, so that opportunity is
out there, but it doesn't help people like Ms. Miller, who I
agreed, it is a long way coming from Juneau. It's even going
worse going back to the Washington.
As I'm traveling around the State this month and going out
to many of the rural communities and speaking with many of our
Native leaders, I will be asking the questions, and hopefully
will have an opportunity to get some good input from across the
State as we travel, but the opportunity for another field
hearing in August is not available at this point, to let you
know. I appreciate your responses.
Next, let's go to Mr. Borell. You mentioned, Mr. Borell,
how this Cape Fox legislation would provide some economic
benefit, and I think you spoke generally, but could you give us
some additional specifics?
Mr. Borell. Yes, Senator. Specifically, I think my compadre
here defined the benefits from the Kensington gold project, and
that is the primary and immediate benefit of this legislation.
It would facilitate getting that project up and working in an
economical fashion. Price of gold, obviously, varies
significantly over time, and that particular project has been
permitted, been through the EIS process twice already, and
because of the price of metal going down, it's not been
economic by the time the EIS was finished. So at this point, it
looks like this is very viable approach, and it could become a
viable project.
Senator Murkowski. You spoke of the problem with lingering
withdrawals. In your perspective, once the purpose of those
congressionally-established withdrawals have been resolved,
should they go away?
Mr. Borell. Absolutely. I think Mr. Loeffler described one
of them in the 40 Mile, and, again, for people's impressions
here, the 40 Mile River system is, what, somewhat over 400
miles in length, and we count all the different tributaries,
then the original closure was 2 miles wide off the centerline,
and so when the actual designations occurred as part of ANILCA,
then that designation was a mile wide total, as compared to,
incidentally, a half mile wide in the lower 48 States, and
Alaska it's a mile wide, but that leaves this one half mile
band on the other side of the 40 Mile River for those 400 or so
plus miles, on each side of every small tributary, and exactly,
that land is in limbo right now.
Much of it has been selected by the State of Alaska. There
are numerous other examples and not just items like that one,
the D 1. There are, as a matter of fact, BLM at this point
hasn't--at least they haven't provided to us and we have asked
for it--a complete listing of how many withdrawals there are.
There are withdrawals all around the State, and I guess it's
our feeling that there should be a list of all those that this
legislation just takes away, just eliminates those withdrawals,
so the State, the Native corporations, the village corporations
can get about the process of receiving their lands.
Senator Murkowski. In your testimony you seem to suggest
that you don't want any agency to have the authority to close
areas to mineral entry, and I take that to mean that you feel
this is an authority that should be reserved to Congress, and I
just wanted to make sure that my assumption is correct?
Mr. Borell. That is absolutely correct. The State of Alaska
agencies proved beyond any doubt for us, at least, that
agencies do not have the ability to hold their appetite. Their
appetite for additional closures continues. I'm not saying this
administration, but there is no question but what overtime all
of the available public lands would be closed in some fashion
or another under some scenario or explanation that makes sense
to somebody, but we believe that is such a crucial decision
that the Congress itself and the president signing a bill must
make that decision.
Senator Murkowski. And, finally, you had indicated that 6
months wasn't enough time for the State to react to the final
lands available. Can you go further with that?
Mr. Borell. Yes, with all these--both the withdrawals that
we believe need to be removed, but also the over-selections by
the village corporations, the Native corporations, once those
have been established and settled, and they occur prior to
settling of the State of Alaska's land entitlement, they, if
you will, take precedence, or at least that's the way they are
being treated, for sure, at that point lands that have been
over-selected for the Native corporations would become
available for the State of Alaska, and the State of Alaska
doesn't get any additional land and they can't make new
selections, but these are selections that have been made, and
they are, if you will, they are sitting on top of a Native
selection, and if the Native selection is diminished, if it's
made smaller because the Native entitlements has been addressed
and answered and transferred, the State of Alaska needs time to
be able to look not at just one little parcel at a time, but be
able to look at the entire State and say, okay, these are the
priorities here, here, here and here, not just piecemeal little
individual sections. That's our point.
Senator Murkowski. Thank you. We're now back over to Mr.
Van Tuyn, and you started off by expressing concerns with the
legislation. I guess the concern that you have is the lack of
public process, and had actually suggested or actually
suggesting that we should pull the legislation at this point in
time. And I would agree with you. It is complex. It is very
comprehensive, but our land issues have always been very
complex, and I guess the purpose in moving forward with
legislation like this is to get that public process moving
forward, and certainly my experience has been the best way to
do that is get something out on the table, so that people can
review, to get this public discussion, and to get the issues
out on the record.
Your written testimony indicates that there is lot in here
that you don't agree with, but I guess I would ask just in
terms of a process issue, how can we resolve our lands issues?
We heard from Mr. Loeffler that if we continue at the rate that
we're going, it's another 85 years in order to complete the
conveyances. So how do we receive our lands that were promised
to us under statehood, promised to the Native Alaskans, how do
we do that if we don't start someplace? Maybe that's a little
bit of a rhetorical question, but I would like your response.
Mr. Van Tuyn. Thank you, Senator. One of the interesting
things we found as we looked at this bill that we just found
out about it very recently is that our questions that we posed
to the Department of the Interior, Bureau of Land Management,
they don't have all the answers themselves. These are very
fundamental questions, and it seems to take quite a while for
them to answer, and this leads us to contemplate the idea that
perhaps an administrative process that identifies the exact
problems, comes up with a conclusive solution through a public
process, that that process could lead to something that could
resolve these long-standing land entitlement issues.
To be sure, the conservation community has an interest,
certainly, in land ownership. This is simply common sense. The
conservation system units ought to have boundaries that people
understand, so the managers can deal with it, the public have
reasonable expectations about what they are, and the private
sector has an ability to move ahead with their plans in areas
where it is appropriate to do so. But the questions we have on
this bill are so fundamental; again, how many areas of CSUs
potentially are affected?
That's one question, and it's a very difficult one to
answer, and it concerns us that a very august and important
body, such as this subcommittee, would have to spend a lot of
time to get to the--and be responsible for getting the answers
to all those questions when it's obvious BLM is the one that
has that information.
Senator Murkowski. So our goals are the same. We both agree
that it benefits Alaska to move forward with the conveyance
process and to do what it is that we have to do to make that
happen. We're in agreement there, but concerns are, perhaps,
how much discretion the Secretary may have, limitation on
public input----
Mr. Van Tuyn. The process is important. Thank you, Senator.
The process is very important, and at the same time, we have
concerns that in streamlining--someone mentioned earlier the
idea that the section 209 authority creates this simple
process. Well, it's very simple, because it rights away the
existing protections. That is a very simple way of doing it,
with one stroke of the pen. The type of process that provides
substantive protections is gone, and that is of great concern.
The promised land, you know, that aspect of it is
important. It's not promises in the future. It's not new
entitlements in the future. It is the land that was promised in
the past, and that should be the focus. We have to be very
careful not to create new entitlements where what we're trying
to do is simply finalize previous ones.
Senator Murkowski. I appreciate your comments and testimony
and appreciate you being here this morning. This legislation
was introduced 2 weeks ago, and in order to make it part of
this hearing, it had to be introduced with two weeks' advanced
notice, so that's probably the biggest reason why you have not
had further opportunity to go into the legislation in detail,
and I would invite you, and welcome you, to work with our
office, work with the committee, work with all those involved
to make sure that you do have that public input that is so
necessary that will hopefully get us all to the same goal,
which is conveyance of our land, but I look forward to working
with you and the trustees on this, and hope we can do that.
Mr. Van Tuyn. Thank you, Senator, and thank you again for
inviting me today.
Senator Murkowski. You bet. Thank you. Mr. Borup, talk a
little bit about Cape Fox. You mentioned some of the positives,
the economic benefits if this legislation moves forward. What
happens if we don't--we're not successful with this
legislation? What would be the impact on the village of Saxman
and the village corporation without this?
Mr. Borup. Well, again, it would be just one more lost
economic opportunity. We'd have to find other ways to create
value for our shareholders, and other ways to find jobs for our
shareholders, and it's very difficult with tourism driving the
economy. We are grateful for the economic impact of tourism,
but those are seasonal jobs. We can employ people for four,
five months of the year. What we're having trouble doing is
employing them year-round with jobs that will support families.
If this doesn't work, one of the other areas would be for
us to partner elsewhere in the State, but given that means that
we're having to send the wage-earners out of their community to
earn a living. Something we're going to have to do. We don't
have those opportunities in Ketchikan right now.
Senator Murkowski. I understand that all too well. You were
pretty emphatic in your statement earlier that there is no
intention--Cape Fox has no plans to log in the area of the
exchanged lands. Is that----
Mr. Borup. That's correct. From what we understand, there
is little economic value, and we have no plans to log there.
Senator Murkowski. Because that obviously was a concern
expressed by some. You also mentioned the recreation issues in
Berners Bay, and there has been some concern that there is
going to be an infringement, if you will, but your statement
seems to indicate that the principal use areas that are within
the forest lands are not included in this proposed exchange?
Mr. Borup. That is absolutely correct. They are not. I
think also the history of Cape Fox land management will show
that we're very sensitive to the public needs. I'm sure you're
familiar with the Harriet Hunt area outside of Ketchikan.
Access to that very beautiful recreation area is over Cape Fox
land. We have worked with the public for decades now to ensure
reasonable access, whatever makes sense.
Senator Murkowski. You have also spoken a little bit
earlier about how Cape Fox has managed some of the lands for
conservation purposes and wildlife purposes. Can you give us a
little more in terms of what you have specifically done in the
past as relates to conservation and wildlife?
Mr. Borup. Certainly. The first notable step towards this
was designation of the White River area as the Cape Fox
Wildlife Preserve, and what that means is that that area, which
is approximately 5, 6,000 acres will now be managed from a more
holistic perspective. I'll be the first to admit that in the
past, a lot of corporations have managed their land by logging
them and then waiting for them to regrow without any thought of
what they're going to do in the interim, the 40, 50 years in
the meantime.
We have taken the first steps towards managing those lands
holistically, and for the advancement of wildlife in that area,
and that will be for the enhancement for wildlife and non-
consumer uses. We can use it to attract higher paying and
higher margins of tourism projects, or get the use to support
subsistence needs of our shareholders. We hope to use that one
area as our model and repeat it throughout all of our lands.
Senator Murkowski. Thank you. I appreciate your testimony
and your willingness to answer questions.
Mr. Borup. Thank you for the opportunity.
Senator Murkowski. Mrs. Miller, I appreciate the time and
the effort you have taken to come up from Juneau, and I do
thank you for your testimony this morning. You have mentioned
also a hearing in Juneau, and I would agree that that is the
best venue for a field hearing on this legislation. As I have
indicated earlier, we don't have that flexibility or the
ability to be doing that at this point in time. But I am
actually traveling to Juneau tomorrow morning and will be there
for a day and a half and, again, it's one of those issues when
we're in the community we do want to make the effort to speak
with the people in the area, those that are affected, and we
will be making sure that we get that input.
But in direct response to your question as to a field
hearing itself, we won't be doing anything as formal as that.
We are having what I'm calling an economic summit tomorrow in
Juneau. We will be discussing the issues of the area, and I'm
sure that this will come up in discussion, but, again, it's
necessary to get the input from not only the members of your
clan, but those in the area, so I appreciate you bringing that
to our attention. Now, you mentioned that you had not heard
from neither Sealaska or Cape Fox as to their intention on the
ancestral sites, on the burial sites, and I hear very clearly
the concerns that you have expressed. It was my understanding
that Sealaska has made a public commitment to protect the
burial ancestral sites. Is that correct? Are you familiar with
that at all?
Mrs. Miller. No, I'm not. They have not contacted us, and
they never contact us, and if we do the land in the area, and I
do--if you can't hold another hearing in Juneau, please come
next year.
Senator Murkowski. I will consider that an invitation.
Mrs. Miller. Please don't rush this bill. It is not
necessary. There have been a lot of discussions about the road
going out to Berners Bay, and it's been put on the ballot, and
it's been voted down. I think you should listen to the people.
It's very dear to us, and I agree to listen to the people.
Just like I stated, in the olden days, you traveled to
somebody else's territory, you needed to get permission, and in
the olden days, we respected one another's property. We need to
get back to that. We need to get back to teaching the young
people how it was a long time ago. Holding a lot of classes on
that. In fact, I'm going to be one of elders that's going to be
on that board, so that I'll teach the young people the right
way, the correct way, the old way. Again, they need to listen
to the people about Berners Bay.
Senator Murkowski. Thank you. We can all stand to listen to
our elders and those that have great wisdom to share. So I
appreciate that. Thank you, again, for your testimony. Mr.
Verrett, you mentioned that perhaps the legislation is a little
bit long, and I agree. We can tend to go on more than we need
to. And you have indicated that section 4 is really all that is
needed to address the situation you experienced out in the
Bristol Bay area. I guess I would ask for your comments on the
rest of it. Are you viewing it as just extraneous, or do you
believe that it complicates the legislation unnecessarily?
Mr. Verrett. I think both. It is controversial. As I
previously testified, I participated in a number of meetings on
draft legislation to solve the problem, and provisions other
than section 4 have been included at the request of various
interest groups in the legislation that seem to be competing.
It is my fear and the borough's fear that this legislation will
get bogged down by these extraneous provisions and that the
true individuals will be harmed are the allottees.
This problem has been festering for 2\1/2\ years. Allottees
are unable to convey lots in existing subdivisions because
there is a cloud over whether there is legal access to the
subdivisions. New subdivisions are not being reviewed because
there is no legal authority to provide legal access, and it is
the individual allottees that are be being harmed, our citizens
are in particular. We have a number of examples where the
economic harm has been pretty significant.
So I'm fearful that including the rest of the language, the
extraneous language, if you will, that is controversial will
further delay the bill. Legislation needs to be passed to allow
the allottees to subdivide their allotments and to enjoy the
economic benefits, hopefully during their lifetime.
Senator Murkowski. The existing regulations, in your
opinion, don't address the issue or allow for resolution of the
subdivision--subdividing Native allotments, it doesn't help us,
the department's regulations?
Mr. Verrett. It's the borough's position that it does not,
because the current regulations, as I understand them, require
or grant authority to the BIA to approve applications for
easements and rights-of-way. The applicant, in this case local
government or the State of Alaska in the unorganized borough,
would be required to apply for BIA for a right-of-way or an
easement. The current CRRs impose significant restrictions and
burdens upon an applicant. Local government, the Bristol Bay
Borough in particular, is unwilling to undertake those
additional legal requirements to apply for rights-of-way within
a subdivision that under the State statutes--State statute and
borough ordinances require to be dedicated to the public at
large by an individual who wishes to subdivide their property.
We're just simply not willing to do that.
Senator Murkowski. Well, we're just about to noon, which is
the scheduled time for adjournment this afternoon. I want to
thank you all for your testimony. Thank you all for your time,
both those of you who have spoken and those of you who have
come to listen.
Again, your testimony is building a record from which we
hope to gain some resolution and some compromise, and I think
the input we have received today has been very helpful, and
helpful to me as we start this public input and start the
process on these many issues. And I would like to just make
special acknowledgment in thanking Mr. David Brooks, who is
senior counsel for the Democratic Committee staff, thank him
for his time and coming to Anchorage and helping us with the
invitations of certain witnesses.
I want to thank Mr. Bouts for his assistance as well as
Jean Rivers, Council and Trish Aspland, both of whom have
joined me as fellows in the office, and, again, been very, very
helpful as we craft the legislation.
I would again invite any of you to add to the record. We
will hold the record open for an additional two weeks to take
written testimony. We will take all the written testimony that
was delivered here today. That will be part of the record, but
would encourage testimony to be submitted. I do understand that
there is information at the back that allows people to know to
send it; is that correct? How do they get their testimony to
us, then?
Voice. Send it to the U.S. Senate.
Senator Murkowski. Send it to the U.S. Senate. How simple
is that? Energy Committee, probably attention to--he's making
it real easy. If you send it to our Anchorage office here, we
can forward it. Or if you're from Juneau, send it to the Juneau
office, but if you get it to my legislative offices, we will
make sure that that is entered into the record.
And I would like to also mention that the committee will
have a second hearing on these same bills back in Washington.
It will probably be sometime in September or October. If you'd
like to be notified of those committee meetings, please let us
know as well. With that, I thank you all for your attention
this morning and for your input, and we are adjourned.
[Whereupon, at 12 p.m, the hearing was adjourned.]
APPENDIX
Additional Material Submitted for the Record
----------
Statement of Jack Hession, Senior Regional Representative, Sierra Club
On behalf of the. Sierra Club, a national environmental
organization of over 700,000 members with chapters in every state, I
request that this statement be placed in the record of the August 6,
2003 Anchorage field hearing on S. 1466, S1421, and S. 1354.
S. 1466, Alaska Land Transfer--Acceleration Act of 2003
S. 1466 was introduced on July 25, 2003, 12 days before the
Anchorage field hearing. At 69 pages, it is an unusually complex and,
as it turns out, controversial measure containing major provisions
affecting the federal lands. Its scope extends well beyond the basic
purpose of expediting conveyance of the remaining federal land grants
to the State of Alaska and Alaska Native corporations.
Members of our organization have just begun their analysis of the
bill. It is clear that extensive additional research is needed, to
fully explore the bill's ramifications, especially with respect to the
national conservation system units of the Alaska National Interest
Lands Conservation Act of 1980. Consultations with the State of Alaska
and federal land management agencies will be necessary in order to
evaluate the effect of this bill.
I understand that the Anchorage field hearing will be followed by
another hearing in Washington, D.C. following the August recess. Our
members will utilize this additional time to examine the bill in
detail, and to provide the Committee with our recommendations when the
bill is again the subject of a hearing.
S. 1461, Alaska Native Allotment Subdivision Act
This is a technical, non-controversial proposal.
S. 1354, Cape Fox Land Entitlement Adjustment Act
The Sierra Club is on record as strongly opposed to this bill. The
Juneau Group of the Sierra Club will submit a detailed analysis to the
Committee.
Thank you for considering our views.
______
Statement of Arnold Brower Jr., President, Inupiat Community of the
Arctic Slope
The Inupiat Community of the Arctic Slope; a Federally Recognized
Tribal Organization representing and acting in the best interest of
Native Allotments Owners, Applicants and Heirs of the Northern Alaskan
Native Villages of Kaktovik, Nuiqsut, Anaktuvuk Pass, Atqasuk;
Wainwiight and Point Lay;
Wholeheartedly supports the testimony of Mr. Edward Thomas,
President of the Central Council Tlingit and Haida Indian Tribes of
Alaska to be given to the United States Senate Committee on Energy and
Natural Resources; Subcommittee on Public Lands and Forests Hearing on
Senate Bill-1466 (The Alaska Land Transfer Acceleration Act of 2003) on
August 6, 2003.
The Inupiat Community of the Arctic Slope assists and oversees on
behalf of our tribal entities the Native Allotment Application and
Adjudication Process approximately 479 Native Allotments in the
Certified and/or Pending state with over 100 applications having been
classified as ``closed''. Numerous of these ``closed'' applications
have been and are claims for acreage within the Arctic National
Wildlife Reserve (ANWR) and Prudhoe Bay Areas.
Inupiat Community of the Arctic Slope is compelled to stand in
support of President Thomas with testimony of elimination of rights and
accurate summarization of delaying factors of procedures utilized and
created within the various agencies of the United States Government and
the State of Alaska regarding the certification and finalization of the
Native Allotment application process over the past several decades.
To not stand in support of the President of Central Council Tlingit
and Haida Indian Tribes of Alaska on this particular issue, would be a
failure in trust responsibilities for restricted properties on our
governing body to properly represent and act in the best interest of
Native Allotment Owners, Applicants and Heirs of the Inupiat Community
of the Arctic Slope.
______
Statement of Eleanor Huffines, Alaska Regional Director, and
Allen E. Smith, Alaska Senior Policy Analyst, The Wilderness Society
Senator Murkowski, Mr. Chairman, members of the committee, we
represent The Wilderness Society. We want to thank the committee for
this opportunity to address the issues in S. 1466, a bill to facilitate
the transfer of land in the State of Alaska and for other purposes.
Eleanor Huffines and Allen E. Smith have both served appointed terms on
the BLM Alaska Resource Advisory Council when it has addressed the
issues raised by this proposed legislation and are familiar with those
issues. We are also represented in testimony on S. 1466 by Trustees for
Alaska and request that our testimony and theirs be printed in the
written record of this hearing and request the right to submit
additional comments on S. 1466 to the record as appropriate.
Founded in 1935, The Wilderness Society works to protect America's
wilderness and wildlife and to develop a nationwide network of wild
lands through public education, scientific analysis and advocacy. Our
goal is to ensure that future generations will enjoy the clean air and
water, wildlife, beauty and opportunities for recreation and renewal
that pristine forests, rivers, deserts and mountains provide. With
200,000 members nationwide, 700 of whom live in Alaska, The Wilderness
Society and its members have had a long-standing involvement in the
history of land law in Alaska and the protection of the extraordinary
wilderness and wildlife values of the national interest lands in Alaska
since its founding.
SUMMARY STATEMENT
The Wilderness Society shares the goal to facilitate expeditious
transfer and settlement of title to public lands in Alaska rightfully
selected under authorization by Congress as Native allotments,
Statehood grants, and Native claims. We applaud efforts to do that. The
passage of the Native Allotment Act, the Alaska Statehood Act, the
Alaska Native Claims Settlement Act (ANCSA), and the Alaska National
Interest Lands Conservation Act (ANILCA) have set up land claims that
must be meshed with each other where conflicting claims exist. We
should all be able to agree that there can be no certainty to
management on any lands in Alaska where there exists uncertainty of
ownership.
We agree that there is a need to complete the land selection and
conveyance processes in Alaska. However, we are disappointed that S.
1466 makes no assertions of purposes or findings of fact to justify the
need for the specific provisions of this proposed legislation and has
had no preparatory public process, such as a Legislative Environmental
Impact Statement (LEIS), to develop those purposes and facts. Further,
we initially find there are provisions of S. 1466 that would contravene
ANILCA and other laws, grant unwarranted administrative authority, and
raise unanswered concerns such that we oppose them. While we are
initially specifically concerned about Sections 106, 107, 201, 204,
207, 209, 212, 213, and 501, we have not had time to evaluate all parts
of S. 1466 and may find other areas of concern as well. We are also
concerned that S. 1466 has come up quickly without sufficient time for
Senator Murkowski and the U.S. Department of the Interior to fully
explain the need for it, and for the public to study it, understand it,
and develop informed opinions about it to allow thoughtful debate. We
hope that there will be sufficient additional public process and time
for the public to address these concerns in subsequent steps of
consideration of S. 1466. Until our concerns and questions are
answered, we cannot support this bill and oppose its movement through
Congress.
DISCUSSION AND ANALYSIS
Before deciding what aspects of S. 1466 are truly needed, we must
first ask for an explanation and justification of why current law, as
enacted and amended, does not achieve that. We do understand the legal
and physical complexity of resolving issues of ownership where
overlapping or adjacent claims of Native allotments, State selections
under the Alaska Statehood Act, Native claims under ANCSA, Conservation
System Units and public lands under ANILCA, and other private interests
intersect or coincide. We are also aware of the effort that BLM has
been making in Alaska to discern what is needed to help expedite
reaching settlements on patents and conveyances, and believe that the
public process could benefit from a public reporting and accounting of
their findings, preferably through a LEIS process. We do not want to
see a solution that is worse than the current practices and procedures.
Any expedited or accelerated land transfer process must still meet the
tests of the intent of the original actions of Congress and adhere to
the same fairness of tests of fact now provided.
There is also a case to be made that Congress should first hold
oversight hearings on the implementation of these existing laws before
venturing forth with new legislation such as S. 1466 that may create
unintended consequences in trying to accelerate the process. Each of
these laws governing land selections for Native allotments, Statehood,
Native claims, and ANILCA took Congress and the public several years to
craft, debate, and pass because of the enormity and complexity of the
public policy questions involved. Congress should be just as thoughtful
in trying to find ways to speed up and expedite the claims settlement
process. Congress has a rich history of conducting such oversight that
could be useful and we urge that that be done here.
We wish to draw attention to the actual status of the settlement of
land claims as one measure of what the goals are that the agencies are
trying to accomplish and the magnitude of the issues that must be
addressed to expedite the process. Attachment A, ``Summary of Status of
Alaska Land Claims,'' * is provided as a picture of how much progress
has been made to resolve these claims (Source: BLM Alaska State Office
Workload Analysis Summary 07-25-03). As one can see from this analysis,
the State of Alaska selections are 39% patented, 45% tentatively
approved and interim conveyed, with 16% remaining to be settled from
what has been selected. Similarly, the Alaska Native claims are 39%
patented, 40% tentatively approved and interim conveyed, with 21 %
remaining to be settled from what has been selected. We draw attention
to these facts because we believe that they should factor into the kind
of solutions sought and applied. Patented lands are complete in their
conveyance. Tentatively approved and interim conveyed are done except
for boundary surveys and patenting. The remaining entitlements have
been selected as part of over-selections allowed in the original
statutes but have not been decided because of a variety of reasons that
include such things as setting priorities for final selections and
resolving conflicting claims with other claimants. We believe that
there are differences in the solutions needed between these classes of
settlement status. The tentatively approved and interim conveyed
classes have a different set of administrative needs to complete than
do the remaining entitlements, and any new legislative procedures to
accelerate conveyance should recognize those differences. We do not see
those distinctions of classes and stages of completion made clear in S.
1466.
---------------------------------------------------------------------------
* The attachment has been retained in subcommittee files.
---------------------------------------------------------------------------
Which raises several concerns and questions to The Wilderness
Society regarding S. 1466 that we believe should be answered before any
bill proceeds:
(1) How many acres of public land are actually affected by S.
1466?
(2) How many acres of public land are affected by each
provision of S. 1466?
(3) How many acres of ANILCA Conservation System Units are
affected by S. 1466?
(4) Will S. 1466 add to the parties' entitlements under
existing law and if so, how many acres, where, and from where
will it come?
(5) Will any aspects of S. 1466 reopen and/or change existing
patented land settlements, and if so, how much and where?
(6) How are the conflicting priorities of Statehood claims,
Native claims, Native allotments, and ANILCA Conservation
System Units to be settled by S. 1466, and how is the public
involved in settling those conflicts?
(7) Would the sponsors of S. 1466 and the Department of the
Interior commit to conducting a Legislative Environmental
Impact Statement (LEIS) or LEIS-type of process to answer these
and many more questions that flow from the enormity of what S.
1466 could affect?
The Wilderness Society has expressed initial concern above in our
Summary Statement about Sections 106, 107, 201, 204, 207, 209, 212,
213, and 501. We find these provisions of S. 1466 would contravene
ANILCA and other laws, grant unwarranted administrative authority, or
raise unanswered concerns such that we oppose them. By reference, we
are signatories to and incorporate the testimony of Trustees for Alaska
as if it is our own and defer to Trustees to review S. 1466. Below, by
way of example of the concerns we have with S. 1466, we specifically
address Sections 204, 209, 213, and 501 as follows:
Section 204. Discretionary Authority to Convey Subsurface Estate in
Pre-ANCSA Refuges: This provision would give the Secretary authority to
allow Alaska Native Regional Corporations to select subsurface land
under village corporation surface lands within pre-ANCSA National
Wildlife Refuges (except for Kodiak and Kenai). In order to protect the
purposes for which these refuges were established this practice is not
allowed under current law and we strongly oppose allowing it now.
Section 209. Bureau of Land Management Land: This provision would
allow the Secretary to open or close BLM lands in Alaska that are
withdrawn under Section 17(d)(1) of ANCSA to any and all forms of
appropriation under the public land laws without prior notice,
opportunity for public comment, environmental review, or judicial
review;- This provision would effectively remove BLM lands in Alaska
from having to comply with the Federal Land Policy & Management Act
(FLPMA) and would grant an extraordinary and unprecedented amount of
authority without accountability to the Secretary. We strongly oppose
this provision.
Section 213. Conveyance to Kaktovik Inupiat Corporation and Arctic
Slope Regional Corporation: This provision requires the Secretary to
convey certain lands on the coastal plain of the Arctic National
Wildlife Refuge to the Kaktovik Inupiat Corporation and the Arctic
Slope Regional Corporation. Congress has previously acted to prohibit
further conveyances of lands within the coastal plan of the Arctic
National Wildlife Refuge and we can see no justification for doing it
at this time. We strongly oppose this provision.
Title V--Alaska Land Claims Hearings and Appeals Section 501: This
provision authorizes the Secretary to create a new appeals and hearing
process for conveyances under the Act, appoint administrative law
judges ``or other officers'' for specified terms, and promulgate final
regulations governing procedure without an opportunity for public
review. This provision effectively removes all of these proceedings
from the established procedures of the Interior Board of Land Appeals
(IBLA). We strongly oppose this provision.
CONCLUSION
The enormity of the discretionary administrative authority that
would be granted without accountability to the Secretary of the
Interior by many provisions of S. 1466 is staggering and unprecedented.
It does not come close to meeting historic standards of checks and
balances and openness in public process. Regardless of ones commitment
to the justifiable need to complete all land selections and conveyances
to achieve certainty in land ownership and management, it is hard to
believe that such a permissive grant of authority is either warranted
or justified to solve any problem. We strongly oppose such action.
Where S. 1466 would facilitate the reopening of selection rights and
further cloud resolution of ownership and management by broadening the
scope of what must be resolved, we also strongly oppose it.
We are just beginning to evaluate S. 1466 and want to find workable
solutions to the need to complete all land selections and conveyances,
but from our initial understanding of the bill we do not believe that
S. 1466 does that. The solutions may lie more in appropriating
sufficient resources to expedite the survey work and in streamlining
procedural requirements rather than trying short circuit the statutory
requirements as S. 1466 appears to do.
There are many unanswered questions about S. 1466. The Wilderness
Society believes that more information is required to justify this
legislation, that there should be a LEIS or LEIS-type of public process
to generate answers to these questions, and that Congress should hold
oversight hearings on how best to address these very complex issues
before any legislation proceeds. We cannot support S. 1466 as drafted
but stand ready to help resolve these issues.
We again thank the committee for this opportunity to comment on S.
1466 and these important issues affecting Alaska lands.
______
Statement of Chris E. McNeil, Jr., Chief Executive Officer,
Sealaska Corporation
Mr. Chairman and members of the committee, thank you for the
opportunity to testify on behalf of Sealaska Corporation regarding
Senate Bill 1354, the ``Cape Fox Land Entitlement Adjustment Act of
2003.'' Sealaska is the Regional Native Corporation for Southeast
Alaska under the Alaska Native Claims Settlement Act (``ANCSA'').
Sealaska Corporation supports the enactment of S. 1354 because it:
allows for native ownership of a recognized Native historic
site;
creates a potential opportunity for jobs for Sealaska
shareholders;
creates business opportunities for Sealaska and other Native
Corporations in services relating to mine development;
makes another step towards the fair resolution of Alaska
Native Land Claims Settlement Act; and
resolves management inefficiencies for Sealaska and the
United States Forest Service on the Tongass National Forest.
The bill provides for adjustments to resolve inequities in Cape
Fox's outstanding land entitlements under ANCSA. The adjustments to
Cape Fox surface land and selection rights in turn require adjustments
concerning Sealaska's title and ANCSA conveyance rights to subsurface
lands underlying the Cape Fox lands. S. 1354 provides for these
adjustments. S. 1354 also resolves land encumbrances that negatively
impact the USDA Forest Service management of certain split-estate lands
(USDA is the surface owner and Sealaska is the subsurface owner) and
ensure that valid subsurface selection rights in which Sealaska has
conveyance rights to the subsurface beneath Tongass National Forest
surface lands do not create more split-estate. This legislation will
ensure that the split-estate areas do not present a continuing
encumbrance and management problem for the Forest Service. The bill
resolves the outstanding Cape Fox and related Sealaska entitlement
issues in a fair manner that furthers the objectives of ANCSA, benefits
Tongass National Forest management, and otherwise serves the public
interest.
The resolution of these issues in S. 1354 incorporates exchanges of
Cape Fox and Sealaska lands and conveyance rights for equal value lands
in the Kensington and Jualin mining district area on the Tongass
National Forest. The transfer to Sealaska and Cape Fox of adjacent
tracts in this area, as provided in the bill, will eliminate from the
national forest lands that are already heavily encumbered with
unpatented mining claims. This is an area that is already zoned under
the Tongass Land Management Plan for mining development. This area
surrounds patented claim, private land inholdings.
The simplifications of national forest boundaries and management
that will be achieved through the exchanges are of substantial benefit
to Tongass management and the public. The exchanges will not have any
significant effects on Forest resources, uses, or values. The exchanges
do not involve any Berners Bay LUD II lands. Any mine development in
the area will remain subject to federal and state environmental
protection requirements.
The claim holders are consenting to these exchanges. The ANCSA
conveyances to Cape Fox and Sealaska in these exchanges will remain
fully subject to all existing mining claims, State of Alaska selections
and rights-of-way, and other existing third-party rights. The exchanges
will provide Alaska Natives an opportunity to participate with the
claim holders and gain experience in mine development and related
enterprises, including potential jobs for Sealaska shareholders.
The Sealaska/Forest Service exchange provided for in S. 1354 also
allows Sealaska to receive conveyance to a site of historical value to
Native shareholders in the vicinity of Slate Creek Cove. This site has
not been eligible for selection and conveyance under Section 14(h)(1)
of ANSCA because of the presence of mining claims. Once conveyed,
guidance for the protection of this site will be provided through the
Sealaska Heritage Institute (``SHI''), its Board of Trustees and
Committee of Traditional Scholars. SHI was organized to preserve the
language and culture of Tlingit, Haida and Tsimshian Indians.
Sealaska is confident that the parties can expeditiously reach
agreement regarding the equal value of the particular lands to be
specified for the exchange, as provided in S. 1354. Significant
progress has already been made to that end. Sealaska and the Forest
Service have achieved substantial progress already on other elements of
the Sealaska/Forest Service land exchange provided for in the bill.
The Sealaska exchange in the bill can be accomplished
administratively with the Forest Service without the need for
legislation, as an additional modification of the existing Sealaska/
Forest Service Split Estate Exchange Agreement under Section 17 of the
Alaska Land Status Technical Corrections Act of 1992, Pub. L. 102-415.
However, enactment of S. 1354 will facilitate and expedite the
exchange, and assure that the Sealaska exchange is completed in
conjunction with the resolution of the Cape Fox entitlement issues
incorporated in the bill.
In conclusion, Sealaska supports prompt enactment of S. 1354 into
law. Sealaska stands ready to actively cooperate with the Secretaries
of Agriculture and the Interior and with Cape Fox to implement S. 1354
once enacted.
______
Statement of Buck Lindekugel, Conservation Director, Southeast Alaska
Conservation Council, on S. 1354
My name is Buck Lindekugel and I am the Conservation Director for
the Southeast Alaska Conservation Council (SEACC). The following
statement is submitted on behalf of SEACC. SEACC respectfully requests
that this written statement and accompanying materials be entered into
the official record of this Subcommittee hearing.*
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* The exhibits accompanying this statement have been retained in
subcommittee files.
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Founded in 1970, SEACC is a grassroots coalition of 18 volunteer,
non-profit conservation groups made up of local citizens in 14
Southeast Alaska communities that stretch from Ketchikan to Yakutat.
SEACC's individual members include commercial fishermen, Alaska
Natives, small timber operators, hunters and guides, and Alaskans from
all walks of life. SEACC is dedicated to preserving the integrity of
Southeast Alaska's unsurpassed natural environment while providing for
balanced, sustainable uses of our region's resources.
On behalf of herself and Senator Stevens, Senator Lisa Murkowski
re-introduced the Cape Fox Land Entitlement Adjustment Act of 2003, S.
1354, 108th Cong. (2003) [hereinafter S. 1354], on June 26, 2003. This
legislation is identical to the bill, S. 2222, that was passed with a
raft of Alaska land bills by the U.S. Senate at the end of its lameduck
session on November 19, 2002, but died when the U.S. House adjourned
without passing it. That bill, S. 2222, had been sponsored by her
father, former Senator Frank Murkowski, currently Governor of Alaska.
SEACC opposed S. 2222 in our testimony before this Subcommittee on June
18, 2002, and we oppose S. 1354 now.
The exchange of pristine public lands in the Slate Cove area of
Berners Bay, north of Juneau, for clearcut private lands that this bill
sets forth is poor policy, creates dangerous precedents, and is
contrary to the public interest. We oppose S. 1354 because it:
threatens the public's access and use of these wildlands for
hunting, fishing, and recreation, as well as the interests of
the Auk Kwaan, the original settlers of the Juneau area, in
protecting their ancestral lands,
frustrates the finality of the Alaska Native Claims
Settlement Act (ANCSA) and invites additional land-selection
conflicts across Alaska, and
facilitates the temporary and illusory benefits from private
development of the Kensington Gold Mine at the expense of
continued public access and use of Berners Bay's outstanding
resources.
This ill-conceived and shortsighted bill would give Cape Fox
Corporation and Sealaska Corporation over 2,600 and 9,300 acres,
respectively, of Tongass National Forest lands in the area of Berners
Bay, 40 miles north of Juneau. See Exhibit 1.\1\ In exchange, Cape Fox
would trade approximately 3,000 acres of its private lands near
Ketchikan, Alaska that have already been clearcut and will have little
if any wildlife habitat value for hundreds of years.\2\ Sealaska would
exchange: 1) the subsurface estate underlying the Cape Fox exchange
lands; 2) the subsurface estate it owns underlying certain Tongass
National Forest lands; and 3) the rights to the subsurface estate of
some Tongass National Forest lands remaining to be conveyed to it under
ANCSA. See S. 1354, Section 6(c). Section 4(a) of S. 1354 also
authorizes Cape Fox to select approximately 99 acres of Tongass
National Forest lands outside Cape Fox's current exterior selection
boundary.
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\1\ Photograph of Slate Cove in Berners Bay. The orientation of the
photo is north. The core area of subsurface development at the
Kensington Gold Mine is to take place underneath Lions Head Mountain,
the prominent peak in the photo. On the left side of the photo is the
fjord called Lynn Canal, and on the right side is a main portion of
Berners Bay. Slate Cove appears in the foreground. The road coming to
saltwater on the right side of Slate Cove would be used for surface
access to the mine site. Below the photo are two maps: the left map
shows the location of Bemers Bay; the right map shows Tongass lands
that would be conveyed to Cape Fox and Sealaska under S. 1354.
\2\ See Alaback, ``A Comparison of Old-Growth Forest Structure in
the Western Hemlock-Sitka Spruce Forests of Southeast Alaska.'' In:
Proceedings: Fish and wildlife relationships in old growth forests.
American Institute of Fishery Research Biologists. p. 220-21 (1984).
Berners Bay is Important to Residents of Juneau and Other Lynn
Canal Residents Because of Its Hunting, Fishing, Recreation,
Cultural, and Spiritual Values. Privatizing Pristine National
Forest Lands Here Would Limit Public Access to Hunting, Fishing
and Cultural Resources and Harm Important Environmental
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Resources in the Bay.
Berners Bay is a large inland bay and glacial valley complex
located on the mainland north of Juneau. The Berners, Lace, and Antler/
Gilkey Rivers are major anadromous fish streams flowing into the
bay.\3\ They produce four (4) species of salmon along with rainbow,
steelhead, cutthroat, and Dolly Varden trout and provide good
commercial fishing values and sport fishing opportunities. Berners
Bay's proximity to Juneau makes it a very popular boating and
recreation destination for Juneau residents. The area also provides a
high quality moose hunting experience and supports healthy populations
of wolves, brown bears, and black bears.
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\3\ An intensive assessment of fish and wildlife values on the
Tongass by the Alaska Department of Fish and Game (ADF&G) identified
the watersheds in Berners Bay as containing some of the most productive
salmon streams in the Tongass National Forest. See Alaska Dept. of Fish
and Game, Tongass Fish and Wildlife Resource Assessment 1998.
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S. 1354 would harm these uses because when conveyed to private
corporate ownership these lands could be clearcut, resold, or otherwise
developed to support industrial activities in Berners Bay. Native
corporations in Southeast Alaska have a long history of clearcutting
lands to maximize revenue with little regard for fish, wildlife,
recreation, or other public uses. Once privatized, public access would
be denied to lands now open to the public for fishing, hunting, and
recreation.\4\
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\4\ See Letter from Berland, Lynn Canal Conservation to Senator
Bingaman (June 14, 2002) (following up on earlier May 9, 2002 letter
(attached) (Exhibit 2). The photo described in the May 9th letter is
the same photo attached to this testimony as Exhibit 1.
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Many Southeast Alaskans adamantly oppose this land exchange. A
number of individuals have written letters to Senator Lisa Murkowski
and other senators as well as the local newspaper, the Juneau Empire,
in support of Berners Bay and its many uses. We have attached these
letters and news articles to this testimony in Exhibit 3. We provide
some quotations from these letters here:
``Berners Bay is a wonderful place, a public place, a
treasure place. To develop it, to log it, to dump mine tailings
on it would be to despoil a natural treasure. It should remain
natural public land, a legacy for your children and
grandchildren and mine.'' Judith Maier
``Nobody needs to sell lots, log, or do anything any
different than what nature has done in Berners Bay.'' Marian
Marin
``Berners Bay is one of Juneau's prime hunting, fishing, and
recreating areas. It's also an ESSENTIAL part of the Lynn Canal
ecosystem.'' Marina Lindsey
The incredible natural values of Berners Bay astound locals and
visitors alike each year:
After a long Alaska winter, Berners Bay is an explosion of
life in the spring. Every year in late April or early May,
millions of hooligan arrive to spawn in the glacial rivers that
feed the bay. For a few short weeks, tens of thousands of
predators are drawn to the bay to prey on the [sardine-sized]
oily, nutritious fish.
Woodford, Berners Bay, Juneau Empire, May 26, 2002, at C1 (Exhibit
4; also at http://uncauempire.com/stories/index.htm]).
As a critical component of the Berners Bay ecosystem, the energy-
rich hooligan arrive in the rivers of the bay at a crucial time to meet
the high energy demands of their predators. During the summer of 1996,
highest daily average counts identified 40,000 avian predators,
including 585 bald eagles, and 250 Steller sea lions, harbor seals, and
humpback whales.\5\ The development of industrial marine facilities
associated with mining development in Slate Cove, such as shipping
facilities, with the resulting increase in barge traffic and risk of
fuel spills in Berriers Bay, threaten the hooligan spawning habitat
and, in turn, all the predator species that depend upon them. (See
additional discussion below.)
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\5\ Marston, B.H., Willson, M.F., and Gende, S.M. 2002. Predator
aggregations at a eulachon (Thaleichthys pacificus) spawning run in
southeastern Alaska. Marine Ecology Progress Series. 231: 229-236.
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The ancestral lands of the Auk Kwaan, the first settlers of the
Juneau area, extended from Berners Bay to Seymour Canal, south of
Juneau. The Auk Kwaan consider the lands and waters of Berners Bay both
culturally and spiritually important. Berners Bay was used by the Auk
Kwaan as a source of food and Indian medicine. It also contains several
old village sites, ``and where there were villages there are burial
sites.'' Auk Kwaan Tribal Leader Rosa Miller's Letter to the Editor,
Protect ancestral lands from Murkowski's bill, Juneau Empire (May 1,
2002) (Exhibit 5).
In her June 13, 2002 letter (Exhibit 6) to Peter Gigante, then CEO
of Cape Fox, Rosa Miller chastised Cape Fox Corporation for this breach
of tradition:
In the old days, when you traveled to someone else's
territory, you could not land your canoe until you got
permission from the clan, who lived in the area. We've heard
absolutely nothing from Cape Fox about your intentions for our
lands in Berners Bay.
She goes on to remind Mr. Gigante that:
Spirit Mountain (also known as Lionshead Mountain) is sacred
to us. Many times I have told the story about how our ancestors
are buried there including our Shaman. Shaman spirits dwell in
Spirit Mountain; this is a place that is important to the
Tlingit of the past, the Tlingit of the present, and the
Tlingit of the future. There are also old village sites in this
area.
She concluded the letter by stating her hope that ``Cape Fox
Corporation will do what is morally and ethically right and help to
withdraw this harmful bill now.''
When Rosa Miller learned that S. 1354 would be considered at this
field hearing in Anchorage, she wrote Senator Lisa Murkowski requesting
a hearing in Juneau on S. 1354. Although her letter prompted an
invitation from the Subcommittee to testify at this field hearing, her
request for a hearing in Juneau has thus far not been granted.
In her letter to Senator Lisa Murkowski, Rosa Miller also expressed
her disappointment at the lack of response from former Alaska Senator
and current Governor Frank Murkowski to her many requests for
assistance in protecting the Auk Kwaan's ancestral lands in Berners
Bay. She wrote:
I have written several letters . . . over the past five
years, asking him repeatedly for his help in protecting our
ancestral lands from proposed development projects such as the
Kensington Gold Project and the Juneau Access Road. Last year,
I wrote him again, urging him to help the Auk Kwaan by
withdrawing S. 2222. He never responded to any of my letters,
and did nothing to halt this bill. I've attached these letters
for your review.
See Letter from Rosa Miller, Tribal Leader of the Auk Kwaan to
Senator Lisa Murkowski (July 23, 2003) (Exhibit 7, with referenced
letters).
When it passed the Tongass Timber Reform Act in 1990, Congress
identified 46,000 acres of the Berners Bay watershed as one of 12 areas
on the Tongass to be managed in perpetuity in accordance with Land Use
Designation II (LUD II) (no commercial logging allowed). This area was
chosen for special management because of its high value fisheries
habitat and the fact that it is a very popular recreational destination
for local residents and visitors to Alaska. Recreational activities
include kayaking, fishing, camping, trapping, and hunting. Protection
for these special values has been recommended and supported by the
Alaska Department of Fish and Game (ADF&G), Alaska communities, and
commercial fishermen.\6\ By designating Berners Bay as a Legislated LUD
II area, Congress directed the Forest Service to manage this area
primarily ``in a roadless state to retain [its] wildland character.''
\7\ This special management designation requires that any permitted
development, such as mining on patented claims, be limited in scope to
be compatible with the area's wildland character. As noted by House
Floor Manager Congressman George Miller, these lands ``will require
careful and prudent management by the Forest Service.'' \8\
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\6\ In 1983, ADF&G recommended that this area be ``reserve[d]
permanently for protection of fish and wildlife.'' From 1987 to 1989,
the communities of Juneau, Wrangell, Petersburg and Sitka supported
protection of Berners Bay. In 1988, United Fishermen of Alaska included
Berners Bay in a list of ``priority fish habitat areas deserving
protection.''
\7\ H.R. REP. NO. 101-931, 101st Cong., 2d Sess., at 16 (Oct. 23,
1990) (Joint Explanatory Statement of the Committee of Conference on
the Tongass Timber Reform Act).
\8\ 136 CONG. REC. H12834 (Oct. 26, 1990 daily ed.) (Comments
explaining what kind of management was required for Berners Bay and the
other eleven designated LUD IIs in the Tongass Timber Reform Act).
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Although the lands proposed for exchange in the Slate Cove area
within Berners Bay are outside the area designated by Congress as a
Legislated LUD 11 area, the exchange lands are immediately adjacent to
and inextricably connected to the ecology of this entire productive
watershed.\9\ If this exchange is approved, the Forest Service will
lack any control or influence over how this block of private lands
directly adjacent to Congressionally designated wildlands is developed.
The Forest Service has stated:
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\9\ The Alaska Department of Fish and Game has identified Slate
Creek as important for the migration, spawning and rearing of
anadromous fish. See Email from Schrader, ADF&G to Brown, SEACC (June
14, 2002) (Exhibit 8). ``[R]esident Dolly Varden trout are present
throughout the creek and in Slate Lake.'' Id.
As acknowledged in the [Cascade Point Access Road
Environmental Impact Statement], the Forest Service has no
jurisdiction over private lands . . . and Forest Service policy
is to avoid regulation of private lands and to recognize the
rights of private land owners to reasonable access to and use
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of their property. . . .''
USFS, Region 10, Recommendation of Appeal Deciding Officer on
Appeals of the Cascade Point Access Road Project at 4 (Mar. 31, 1999)
(emphasis added).\10\
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\10\ The Cascade Point Access Road project refers to the 1998
approval by the Forest Service of a road easement to Goldbelt, Inc.,
the Juneau urban Native corporation, to access its property at Cascade
Point on the southeast end of Berners Bay.
ANCSA Did Not Treat Cape Fox Unfairly. S. 1354 Would Frustrate
The Finality Of ANCSA And Invite Additional Land-Selection
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Conflicts Across Alaska.
Senate Bill 1354 waives ANCSA's land selection requirements,
inviting further land-selection conflicts across Alaska. The bill
inaccurately suggests that this congressionally-mandated land
conveyance is needed to address inequities suffered because Congress
limited the national forest lands from which Cape Fox could make its
land selections. See S. 1354, Sec. 2. But the argument that ANCSA needs
to be modified as proposed in S. 1354 to address the equity of ANCSA's
land selection criteria thirty years later is not compelling.
To protect the water quality of Ketchikan's watersheds, ANCSA kept
Cape Fox from selecting lands ``within a six-mile radius of
Ketchikan.'' See 43 U.S.C. 1621(1). These limitations, however, did not
place Cape Fox on an unequal economic footing relative to other village
corporations in Southeast Alaska or other parts of Alaska.
Cape Fox received the same amount of land as every other Southeast
village and urban corporation under ANCSA (approximately 23,000 acres).
Constraints on the selection of lands resulted in some disparities
between the value of timberlands conveyed to each village and urban
corporation in Southeast Alaska. However, the economic benefits
realized per shareholder from logging these lands were divided between
widely varying numbers of people. Cape Fox Corporation has fewer
original shareholders (230 shareholders) than all but one other village
corporation.\11\ Consequently, the direct financial benefit per
shareholder was higher for Cape Fox than nearly all village
corporations in Southeast Alaska.\12\
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\11\ Only the village of Kasaan had fewer, with 119 shareholders.
See Knapp, Native Timber Harvests in Southeast Alaska, Table 2 at p.7,
USDA Forest Service, PNW-GTR-284 (1992) (Exhibit 9).
\12\ See Institute for Social and Economic Research, University of
Alaska, Anchorage, A Study of Five Southeast Alaska Communities, at p.
94-97 (1994).
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All Southeast Alaska village and urban corporations, including Cape
Fox, are located on the water, and hence all were hindered in varying
degrees from choosing lands from the full nine townships to which ANCSA
gave them nominal selection rights. Yet, Cape Fox and the other
Southeast Alaska village corporations faired far better economically
than did most of the other 220 Alaska Native village corporations
established by ANCSA, because they were able to select high value
timberlands. Cape Fox fared better, not worse, then other village
corporations under ANCSA.
Cape Fox, like other Southeast Alaska village and urban ANCSA
corporations, has cut virtually all the timber from the lands it
selected under ANCSA in roughly 20 years. Plainly, S. 1354 sets the
precedent that Congress will make additional grants of valuable Tongass
National Forest lands as recompense for the unsustainable land
management practices carried out on private lands by Cape Fox and other
Southeast Alaska ANCSA corporations. Clearly, it would frustrate the
finality of the ANCSA settlement. See Alaska v. Native Village of
Venetie Tribal Govt., 522 U.S. 520, 523 (1998) (Congress enacted ANCSA
``to settle all land claims by Alaska Natives.'')
Moreover, forcing the Forest Service to convey pristine Tongass
National Forest lands in exchange for stumps on clearcut, private
corporation lands, as proposed in S. 1354, ignores the balanced
multiple-use principles that should govern Tongass management. Such a
legislatively mandated exchange would further deny any American
citizen, the true owners of the Tongass National Forest, equal access
to the use and enjoyment of the forest's natural resources. Any land
exchanges on Tongass National Forest lands must be in the public
interest and should be conducted through the Forest Service's existing
administrative procedures under 36 C.F.R. Part 254.
In the past, the Alaska Delegation has passed up opportunities to
help Cape Fox realize economic benefits from developing its own
existing lands. An example of such efforts, one that SEACC supported,
was the development of the Mahoney Lake hydroelectric project by Cape
Fox. ``[Cape Fox] selected this site under ANCSA primarily for its
hydroelectric potential.'' See Letter from Gigante, Cape Fox CEO to
Senator Frank Murkowski, p. 2 (Feb. 16, 2001) (Exhibit 10). But instead
of helping Cape Fox pursue this project, the Alaska Delegation worked
to stifle this private initiative by promoting other projects over the
objections of Cape Fox. See Letter from Alaska Delegation to Boergers,
FERC (Feb. 8, 2001) (Exhibit 11).
S. 1354 Facilitates the Temporary and Illusory Benefits from
Private Development of the Kensington Gold Mine at the Expense
of Continued Public Access and Use of Berners Bay's Outstanding
Resources.
As we detailed in last year's testimony, the proposed land exchange
is directly related to plans by Coeur Mining Company to develop and
operate the Kensington Gold Mine.\13\ As noted in a press release
issued by former Senator Frank Murkowski's office on April 23, 2002,
regarding last year's S. 2222 (Exhibit 13): ``The land to be selected
near Slate Lakes, north of Berners Bay, will enable the proposed
Kensington Gold Mine to operate totally on private land, which will
help speed its development.'' However, the most critical factor slowing
Coeur's development of this mine is not land ownership, but gold
prices.\14\
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\13\ See Inklebarger, Land swap could help open mine, Juneau Empire
(April 26, 2002) (Exhibit 12).
\14\ See Press Release from Coeur Alaska, Kensington gold project
moving forward (April 25, 2002) (``Falling Gold prices have made the
approved plan economically infeasible.'') (Exhibit 14).
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Although Coeur has possessed all the permits and other approvals it
needs to develop the mine since 1998, it has redesigned the project
several times in an effort to reduce operating costs and make the mine
more profitable given projected gold prices. In an effort to reduce its
waste disposal costs, Coeur's latest design modification includes
dumping mine tailing waste into Slate Lake, a pristine mountain lake
that flows into a productive salmon stream in Berners Bay.\15\ Such a
proposal violates the Clean Water Act because the intent of Congress in
enacting this important statute was to treat waste, not dilute it by
mixing it with uncontaminated fresh waters.\16\ Slate Lake is ``a water
of the United States'' and to convert it into a mining waste disposal
facility is flatly inconsistent with the primary goal of the Clean
Water Act ``to . . . maintain the chemical, physical, and biological
integrity of the Nation's water.'' See 33 U.S.C. Sec. 1251(a). Coeur's
amended plan of operations will lead to substantial legal controversy
both inside and outside of Alaska.
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\15\ Although Coeur describes Slate Lake as a ``muskeg lake'', the
photo in Exhibit 1 to this Statement shows that it is a pristine,
fresh-water lake.
\16\ See Fry, EPA looks askance at Kensington Mine's plan, Juneau
Empire (November 3, 2002) (Exhibit 15)
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To further the development plans for operation of the mine, the
maximum life of which is expected to be only 15 years, Coeur has
entered into land-use agreements with both Cape Fox and Sealaska
corporations to use. the Berners Bay lands these corporations would
gain through S. 1354. See Exhibit 14 at 2. Coeur has already entered
into a similar agreement with another ANCSA corporation, Goldbelt, Inc.
Coeur's new plan of operations proposes to construct a dock on Goldbelt
land at Cascade Point to ferry workers across the bay to Slate Cove,
rather than housing workers on site. Berners Bay would be transited 6
to 10 times each day by ferries transporting mine workers. In addition,
huge barges, 286 long and 75 wide or larger, would make multiple
trips each week to transport ore, fuel, and supplies across the
bay.\17\ Degradation of the quality of the clean, biologically-
productive waters of Berners Bay by this commercial traffic would be
very likely.
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\17\ Coeur Alaska, Inc. Amended Plan of Operations for the
Kensington Gold Project (November 2001), at 217 to 2-18.
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In sum, Coeur's latest plan of operations, which S. 1354 would
greatly expedite, is inconsistent with managing Berners Bay for the
long-term benefit of all the current public uses. Industrial mine
development, particularly the proposed mine tailings dump, within the
Berners Bay watershed will harm existing public use of the bay for
fishing, hunting, and recreation. There are also grave risks associated
with development and operation of the mine. If the proposed dam ever
failed, nothing would stand between the toxic sediments stored behind
it and the rich marine resources in Berners Bay.
seacc's additional concerns with specific provisions of s. 1354
1. Effect of Proposed Conveyances on Public Access and Uses
As introduced in 2002, Section 5(b) of S. 2222 included language
directing that ``[t]he Secretary of Agriculture shall exclude from the
lands offered all land from the mean high tide mark to a point five
hundred feet inland of all marine shorelands in and adjacent to the
waters of Berners Bay; Provided, said exclusion shall not include any
lands in the Slate Creek Cove area within [property description].'' By
not including this proviso, S. 1354 substantially increases the harm to
public access and uses from the proposed exchange. This zone, from
marine waters across the tidelands and upland 500 feet, is some of the
most heavily used and valuable lands in the exchange area. A review of
Exhibit 1 shows the substantial amount of shoreline in Berners Bay and
outside of Slate Cove proper that this bill would effectively close to
public access and use.
2. Valuation of Exchanged Land
Under existing law, any exchange of public lands with ANCSA
corporations must ``be on the basis of equal value.'' See 43 U.S.C.
Sec. 1621(f); 16 U.S.C. Sec. 3192(h)(1). Sections 5(d) and 6(b) of the
S. 1354 requires the Secretary of Agriculture to ``determine'' that the
lands to be exchanged by Cape Fox and Sealaska are of equal value to
the lands the corporations will receive under S. 1354. This provision,
however, does not specify how such a determination will be made or if
it will be subject to public notice, comment, and environmental review
under the National Environmental Policy Act as required by agency
regulations. See 36 C.F.R. Sec. Sec. 254.3(c), 254.8, and 254.3(g). It
is poor public policy for Congress to exempt this, or any other
exchange of public lands, from these basic regulatory requirements.
3. The Bill Could Increase Sealaska's Land Entitlement Under ANCSA
Senate Bill 1354 proposes to trade roughly 12,000 acres of high-
value public wildlands in Berners Bay to Cape Fox and Sealaska
Corporations in exchange for approximately 3,000 acres of Cape Fox's
mostly clearcut private lands and 8,104 acres of assorted Sealaska
subsurface lands. Although section 7(d) claims that ``[n]othing in this
Act shall be construed to change the total acreage of land entitlement
of Cape Fox or Sealaska under ANCSA,'' this same section explicitly
exempts the lands received by Sealaska under section 6 from being
charged against Sealaska's ANCSA entitlement. Under Section 6(b),
Sealaska would receive approximately 9,329 acres of surface and
subsurface lands and relinquish approximately 8,104 acres of subsurface
lands. Yet, as drafted, S. 3154 would not charge Sealaska for the
excess 1,225 acres lands it receives in exchange for its subsurface
acres against its entitlement under ANCSA. Consequently, the bill, in
effect, reopens ANCSA by increasing the acreage of the Tongass National
Forest that Sealaska is entitled to collect under that law.
4. Replacement of Old Growth Reserves vis a vis Old Growth Forest
Section 7(h) directs the Secretary of Agriculture to ``add an equal
number of acres of old growth reserves on the Tongass National Forest
as are transferred out of Federal ownership as a result of this Act.''
``Old growth reserve'' refers to areas of old growth forest
specifically designated and set aside by the 1997 Tongass Land
Management Plan to provide habitat for old-growth-dependent wildlife.
If the exchanges under this bill occur, the Forest Service would be
required to replace only 3,625 acres of old growth reserve, even
though, in actuality, at least twice that amount of old-growth forest
will be exchanged.\18\ This represents a net loss of productive old
growth forest on the Tongass.
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\18\ See USFS, Final Supplemental EIS for Tongass Roadless Area
Evaluation for Wilderness Recommendations, Vol. 11, Appendix C--Part 1
at p. C1-475 (2003).
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5. Other Concerns
Senate Bill 1354 completely exempts the lands subject to this
exchange from the requirement in Forest Service regulations for
``market value'' appraisals. Compare Section 7(a) of S. 1354 with 36
C.F.R. 254.9.
In addition, S. 1354 modifies agency exchange procedures by
mandating the conveyance of lands and interests identified by Cape Fox
and Sealaska. Existing Forest Service regulations, however, recognize
that land exchanges are supposed to be discretionary, voluntary real-
estate transactions and completed only if the Forest Service determines
that the exchange will serve the public interest. 36 C.F.R.
Sec. 254.3(a)-(b). Clearly, S. 1354 is a poor substitute for the
requirements of Forest Service regulations and appears more intent on
furthering private interests than satisfying the broader public
interest.
CONCLUSION
Berners Bay is important to residents of Juneau and other Lynn
Canal residents because of its hunting, fishing, recreation, cultural
and spiritual values. Privatizing pristine national forest lands here
would limit public access to hunting, fishing and cultural resources.
This proposed land trade will also facilitate the private development
of the Kensington Gold Mine at the expense of existing uses of, and
environmental harm to, Berners Bay's incredible natural resources.
Real problems with ANCSA should be solved by soliciting public
input from all concerned Alaskans, respecting all forest users, and
maintaining the integrity of the Tongass National Forest and other
federal lands. We urge the committee to stop S. 1354 in its tracks.
Trades, such as proposed in S. 1354, should not be mandated by Congress
but enacted through existing administrative mechanisms and based upon
the presumption that the greater public good will be served.
Thank you for this opportunity to comment on this legislation
important to Southeast Alaskans.
______
Statement of Buck Lindekugel, Conservation Director, Southeast Alaska
Conservation Council, on S. 1421
The following statement is submitted on behalf of the Southeast
Alaska Conservation Council (SEACC). SEACC respectfully requests that
this written statement and accompanying materials be entered into the
official record of this Subcommittee hearing.
Founded in 1970, SEACC is a grassroots coalition of 18 volunteer,
non-profit conservation groups made up of local citizens in 14
Southeast Alaska communities that stretch from Ketchikan to Yakutat.
SEACC's individual members include commercial fishermen, Alaskan
Natives, small timber operators, hunters and guides, and Alaskans from
all walks of life. SEACC is dedicated to preserving the integrity of
Southeast Alaska's unsurpassed natural environment while providing for
balanced, sustainable uses of our region's resources.
Senator Lisa Murkowski introduced S. 1421 on July 16, 2003 to
authorize the subdivision and dedication of restricted land by Alaska
Natives. This bill is intended to provide Alaska Natives who own
allotments ``with the same obligations and privileges of other private
landowners in Alaska.'' 149 Cong. Rec. S9503 (July 16, 2003).
In general, SEACC does not object to this legislation. Our primary
concern, however, is the effect of this legislative proposal on Native
allotments within Conservation System Units (CSU), as defined by
section 102 of ANILCA. 16 U.S.C. Sec. 3102. In addition, other
critically important national interest lands protected by Congress that
are not CSUs, including legislated LUD II lands protected in their
natural state ``in perpetuity'' by Congress in the 1990 Tongass Timber
Reform Act, may also contain Native allotments.
In the past, Congress has expressly recognized a policy of
acquiring private lands and interests in land within CSUs on the
Tongass. In the Greens Creek Land Exchange Act of 1995, Congress
specifically authorized the Forest Service to use the first $5,000,000
in royalties, received by the United States from the sale of minerals
from the development of subsurface lands on specified lands within the
non-wilderness portion of the Admiralty Island National Monument to
acquire private lands, including Native Allotments, within this and
other Tongass CSUs.
We are concerned that, as drafted, S. 1421 would allow Native
owners of allotments in CSUs to subdivide these allotments, and thereby
complicate and possibly frustrate, Congressional intent to reacquire
and manage these inholdings as part of the CSUs. We urge the
Subcommittee to clarify that the right to subdivide and dedicate Native
allotments under this bill is not intended to apply to those Native
allotments in CSUs, or other critically important national interest
lands that were protected in their natural state by Congress ``in
perpetuity'' but are not CSUs, specifically the legislated LUD II lands
in the 1990 Tongass Timber Reform Act.
Thank you for this opportunity to submit this statement on this
important legislation.
______
Statement of Buck Lindekugel, Conservation Director, Southeast Alaska
Conservation Council, on S. 1466
The following statement is submitted on behalf of the Southeast
Alaska Conservation Council (SEACC). SEACC respectfully requests that
this written statement and accompanying materials be entered into the
official record of this Subcommittee hearing.
Founded in 1970, SEACC is a grassroots coalition of 18 volunteer,
non-profit conservation groups made up of local citizens in 14
Southeast Alaska communities that stretch from Ketchikan to Yakutat.
SEACC's individual members include commercial fishermen, Alaskan
Natives, small timber operators, hunters and guides, and Alaskans from
all walks of life. SEACC is dedicated to preserving the integrity of
Southeast Alaska's unsurpassed natural environment while providing for
balanced, sustainable uses of our region's resources.
Senator Lisa Murkowski introduced S. 1466 on July 25, 2003. The
scope and complexity of this bill is understandable given that the
transfer of Alaska federal lands to Alaska Natives, the State of
Alaska, and Alaska Native Corporations is the largest and most complex
land conveyance program in the history of the United States. Although
Senator Murkowski justifies this legislation as necessary to bring
closure to the land entitlement process in Alaska, the bill actually
raises a number of very significant environmental concerns and other
significant questions which it does not answer. Given these factors,
and the relatively short time available to prepare testimony for this
field hearing, we offer these preliminary comments for your
consideration as you begin your review of this legislative proposal,
which would have enormous ramifications for Alaska. We urge you not to
rush this bill. Instead, please take a hard look at the wide-ranging
consequences of this proposed legislation on federal lands in Alaska.
Will S. 1466 Fast Track The Alaska Land Conveyance Process At The
Expense of Legitimate Community Concerns?
As Senator Murkowski explained in her statement when she introduced
S. 1466, ``[t]he Alaska Land Transfer Acceleration Act of 2003 imposes
very strict provisions on [the Bureau of Land Management] to complete
land conveyances by 2009 to Alaska Natives, the State of Alaska and to
Native Corporations.'' 149 Cong. Rec. S9976 (July 25, 2003).
Senate Bill 1466 seeks to accomplish this ambitious schedule by
substituting the existing open and formal process for determining land
entitlements with a process that leaves the public and affected
communities in the dark. Section 106 authorizes the Secretary of
Interior to negotiate binding, written agreements with the State of
Alaska with respect to any subject that may assist in completing the
conveyance of federal land to the State, including the exact number and
location of acres. Section 212 similarly gives the Secretary authority
to negotiate agreements with Native corporations concerning any issue
that may help complete the conveyance process, including the amount and
location of the corporations remaining entitlements.
We agree that it may make sense to allow for negotiations and
informal agreements to help resolve entitlement issues with the State
of Alaska and Native corporations. The process set up by Sections 106
and 212, however, raises serious concerns because neither section
provides for public participation nor binds the Secretary's authority
to restrictions that otherwise apply to State and Native selections
under the Statehood Act, the Alaska Native Claims Settlement Act
(ANCSA), the Alaska National Interest Lands Conservation Act (ANILCA),
or other laws. One such limitation is the limitation on conveyances of
lands within Conservation System Units (CSU), as defined by section 102
of ANILCA, 16 U.S.C. Sec. 3102. See 16 U.S.C. Sec. 3209. Additionally,
S. 1466 should be amended to safeguard other critically important
national interest lands protected by Congress that are not CSUs,
including legislated LUD II lands protected in their natural state in
perpetuity by Congress in the 1990 Tongass Timber Reform Act.
We can not emphasize enough the importance of assuring that the
land conveyance process is open to public participation. We urge the
Subcommittee to assure that efforts to speed up and complete land
conveyances under the Statehood Act and ANCSA do not come at the
expense of legitimate community concerns about the effect of such land
conveyances on traditional community uses of affected public lands.
Both sections 106 and 212 should, at a minimum, provide for publication
of proposed agreements in the Federal Register and a 90-day public
comment period.
Section 105--The University of Alaska's Entitlement
Section 105(a) and (b) of S. 1466 declares the University of
Alaska's remaining land entitlement to be 456 acres as of January 1,
2003, and increases that entitlement to reflect the reconveyance of any
land to the United States to accommodate conveyance of Native
allotments. We understand that BLM estimates there to be approximately
1,200 acres of these reconveyed lands. Section 105(b) authorizes the
State, on behalf of the University, to select any isolated tract of
public land that is vacant, unappropriated and unreserved, other than
BLM lands withdrawn under Section 17(d)(1) of ANCSA.
An earlier draft of S. 1466 required notice of the State's
selections on behalf of the University of Alaska to be published in a
local newspaper and subject to public comment, with those who commented
entitled to notification of a final decision. We are troubled that
Section 105(c) of S. 1466 no longer contains these requirements. As
amended, the University could take title to ``high value'' lands within
the Tongass and Chugach National Forests for purposes of development
without giving local communities and Alaskans an opportunity to voice
legitimate concerns about the effects of such conveyances on their uses
of such lands.
Conveyance Of Land Entitlements Under Section 14(h)(8) of ANCSA
Section 14(h) of ANCSA established a two million acre pool of lands
from which several categories of entitlement were to be met, including
the conveyance of cemetery sites and historical places, land
entitlements for the urban Native corporations created by ANCSA, and
Native allotments. According to section 14(h)(8), the remainder of
lands not otherwise conveyed under this section were to be allocated
and conveyed to the eligible Regional Corporations upon the basis of
populations.
Section 207 of S. 1466 creates two new alternative methods for
finalizing acreage entitlements under Section 14(h)(8) of ANCSA. One
method is the irrevocable election by a Regional Corporation, within
one year of enactment, of the corporation's percentage share of 255,000
acres, regardless of the actual acreage the corporation may have been
eligible to receive. No basis is provided for this specified acreage;
it is significantly higher than the BLM's estimate last summer of
180,000-200,000 acres remaining in the pool of entitlement lands to be
conveyed to the Regional Corporations.\1\ We are concerned that the
255,000 acres specified in S. 1466 is an overly large estimate of the
corporations' remaining entitlement under 14(h)(8). For example, S.
1466 would greatly increase the allocation of lands Sealaska, the
Regional Corporation for Southeast Alaska, could be conveyed from
Tongass National Forest Lands. If Sealaska chooses this method, its
remaining entitlement to lands in Southeast Alaska would be 55,590
acres, significantly higher than the 39,000 to 43,000 acres estimated
by BLM in 2002.
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\1\ See Letter from United States Department of Interior, Bureau of
Land Management, Alaska State Office to McNeil, President and CEO of
Sealaska Corporation (July 2, 2002) (attached as Exhibit 1).
Note: The exhibits have been retained in subcommittee files.
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As an alternative method to taking its percentage share of the
25,000 acres specified above, Section 207 would allow Sealaska to
irrevocably elect, within one year, to enter into good faith
negotiations with the Secretary of Interior to settle its final
14(h)(8) entitlement based on the parties' estimate of the number of
acres to which the corporation will be entitled. This negotiation must
be completed within two (2) years or the corporation must wait to
resolve its 14(h)(8) entitlement until administration of the entire
14(h) program is completed, the original method adopted by Congress in
ANCSA. Of greatest concern, the negotiations under this method would
not be subject to prior notice, the opportunity for public review, or
environmental review under the National Environmental Policy Act
(NEPA).
Section 208 of S. 1466 allows the Secretary of Interior to withdraw
additional lands if a Regional Corporation does not have enough valid
selections on file to fulfill its remaining entitlement from within the
boundaries of lands originally withdrawn by BLM for Native corporation
selections. This section prohibits the Secretary from withdrawing lands
located within the boundaries of a conservation system unit (CSU), such
as wilderness areas designated on the Tongass under ANILCA and the
Tongass Timber Reform Act. This limitation does not, however, protect
other critically important national interest lands that were protected
in their natural state by Congress ``in perpetuity'' but are not CSUs,
specifically the legislated LUD II lands in the 1990 Tongass Timber
Reform Act. Safeguarding these key lands was strongly supported by
Alaskans--including many communities, the State of Alaska, commercial
fishing groups, tourism groups, Native Alaskan organizations, and many
others. See Exhibit 2. Consequently, S. 1466 must be amended to exclude
all Congressionally designated lands on the Tongass.
Alaska Land Claims Hearings and Appeals
Section 501 of S. 1466 authorizes the Secretary of Interior to
establish a hearings and appeals process for land transfer decisions
issued by BLM regarding Native, Community, State, or University land
selections in Alaska. Of greatest concern to SEACC, this section allows
the Secretary to avoid the public process of notice and comment
ordinarily applicable to agency promulgation of regulations and exempts
the regulations from NEPA review. Although it is reasonable to
establish an Alaska hearings unit to handle all Alaska appeals,
creating an entirely new appeals process rather than providing more
funds for the existing Interior Board of Land Appeals appears
unreasonable to us.
Some Important Questions That Need Answers
1. Exactly how many of CSUs are potentially affected by this bill?
2. Were not the University of Alaska's remaining land entitlements
subsumed under the Alaska Statehood Act or Section 906(b) of ANILCA?
3. How did BLM determine that 255,000 acres of land was available
for reallocation to the Regional Corporations under Section 14(h)(8) of
ANCSA?
4. What is the control date used for determining entitlements under
this bill? Is it the date of the original entitlement or enactment of
this legislation? What effect will either date have on the lands
available for conveyance under this bill?
5. Can surplus federal lands and properties be substituted for some
of the remaining land entitlements? If so, how much surplus lands and
properties are available and what is the value of these lands and
properties?
6. What were the reasons for selecting 2009 as the target date for
completion of the conveyance of remaining land entitlements?
7. How long did it take other states to receive their land
entitlements? How many acres of federal land were those states entitled
too?
In conclusion, we respectfully request the Subcommittee to carry
out a deliberate and careful scrutiny of this complex piece of
legislation and resolve our unanswered questions, as well as those
posed by others. We further urge the Subcommittee to assure that
efforts to speed up and complete land conveyances under the Statehood
Act and ANCSA do not come at the expense of legitimate concerns of
local communities and residents about the effect of such land
conveyances on traditional community uses of affected public lands.
Thank you the opportunity to make preliminary comments on this
proposed legislation.
______
Hyak Mining Company, Inc.,
Juneau, AK, August 5, 2003.
Hon. Larry Craig,
Public Lands and Forest Committee, Senate Energy Committee, Washington,
DC.
Dear Senator Craig: Hyak Mining Company is a corporation, based in
Juneau, Alaska that has been working to redevelop the mines in the area
of Berners Bay, since 1978 when we restaked the former Jualin Mine. The
relationships of Hyak's owners to the area reach back to 1891 when the
great grandfather of the majority owners of Hyak discovered and staked
the Comet mine now part of the Kensington mine property.
Since 1978 we have been working diligently to explore for and
develop the mineral deposits in that area. Hyak presently owns outright
or has interests in 412 acres of patented mining claims and
approximately 500 unpatented federal mining claims in the Berners Bay
district. The unpatented claims, with few exceptions, are under lease
to Coeur Alaska and are located on lands subject to the exchanges
between the Cape Fox and Sealaska Corporations and the U.S. Forest
Service proposed in Senate Bill 1354.
Hyak has been generally apprised of the S. 1354 land exchange
proposals from the initial stages. We have concluded that the proposed
exchange is vital to the economic redevelopment of thee past producing
mines in the Berners Bay area. As long as our existing rights are
protected, Hyak Mining Company is in full support of these proposed
exchanges.
Redevelopment of the Berners Bay area mines will be enhanced by
having neighboring private land owners who's interests are more closely
aligned with the owners of the patented lands and unpatented claims in
the area than the U.S. Forest Service. Hyak is looking forward to
working with Coeur Alaska, Cape Fox Corporation and Sealaska to create
a mining development district and redevelop the Kensington and Jualin
mines. This will be a very important step toward bringing new
investment and jobs to a region of Alaska that is in critical need of
economic diversification. Hyak believes Coeur Alaska has developed a
workable operations and transportation plan for redevelopment in the
area. This plan is minimally intrusive from a environmental standpoint,
and the safest and most reliable from an operations perspective.
Thank you for your consideration of these comments. Hyak Mining
Company urges the Committee to give favorable consideration to S. 1354.
Sincerely
E. Neil MacKinnon,
President.
______
Central Council,
Tlingit and Haida Indian Tribes of Alaska,
August 6, 2003.
Hon. Lisa Murkowski,
Senate Subcommittee on Public Lands and Forest, Dirksen Office
Building, Washington, DC.
Dear Senator Murkowski: I request that you accept this letter as
the testimony of the Central Council Tlingit and Haida Indian Tribes of
Alaska on the proposed legislation entitled the ``Alaska Land Transfer
Acceleration Act of 2003.'' I request that my testimony be included in
the official record of this hearing. I appreciate this opportunity to
give testimony on S. 1466.
INTRODUCTION
The Department of the Interior (DOI) proposes by its Alaska Land
Transfer Acceleration Act of 2003 to transfer land in Alaska to the
State and Native Corporations. Overall the goal of the proposed
legislation is to ensure that the State of Alaska and Native
Corporations obtain patents to land. This goal would be admirable
except that it eliminates existing property rights of Native allotment
applicants. This is justified according to a Bureau of Land Management
(BLM) Memo,\1\ because Native allotment applicants (or heirs) are the
cause of the delays in finalizing Native allotments. It is true that
until BLM completes the processing of Native allotments the transfer of
some land to the State and Native Corporations is delayed. It is untrue
that Native allotment applicants (or heirs) are the cause of the delay.
Instead, the blame rests with the inefficient and lengthy processes
used by BLM, the Office of Hearings and Appeals, and the Interior Board
of Land Appeals (IBLA). The finalization of allotments are delayed by
numerous factors which are summarized as follows:
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\1\ Memorandum from BLM, Alaska State Director to Assistant
Secretary, Land and Minerals Management (May 7, 2003).
Many approved applications sit for years awaiting surveys
even though some allotments could be certified without surveys.
Many applications now require hearings because BLM
continuously develops and applies stricter standards to prove
use and occupancy. One example is an internal memo issued by
BLM State Director Cherry in 1999 which set stricter
evidentiary standards making it near impossible for an
allotment to be approved on the basis of sworn affidavits and
thus more hearings are required.
Many applications are delayed due to BLM's yearly
reorganization when allotment case files are transferred from
one employee to another resulting in significant delays because
employees must become familiar with a new set of cases each
year.
Many applications sit for years awaiting a hearing, because
hearings are generally conducted only in the summer months
thereby severely limiting the number of hearings held each
year. This delay adds years to the finalization of allotment
applications. For example, an allotment case remanded to the
BLM in 1987 for a hearing was not heard until 2002. Another
example is a hearing was held in 2002 in a case where the
application was filed in 1909.
Many applications sit for years waiting to be processed
after favorable hearing decisions or favorable appeal
decisions.
Many applications sit for years waiting for an appeal
decision from the IBLA. The average length of time it now takes
the IBLA to issue a decision is five years. Many applications
are not legislatively approved because the State of Alaska
filed a protest. However, many of these applications could be
legislatively approved if settlements were reached allowing the
State to withdraw its protests. BLM should identify these
potentially legislatively approvable applications and with BIA,
facilitate settlement.
Given that DOI has caused the delays in processing Native allotment
applications, it is unconscionable to sacrifice Native allotments for
the sake of finalizing the state and corporation land selections. But,
that is the effect of S. 1466.
Before S. 1466 proceeds further, DOI must consult with the Tribes
in Alaska. Many of the Tribes have compacts or contracts with the
Bureau of Indian Affairs to assist Alaska Natives throughout the
allotment application process. Therefore, the Tribes' expertise in land
matters would be enormously helpful in developing and implementing
solutions to finalizing land claims without sacrificing Native
allotments. Moreover, meaningful consultation with the Tribes on this
proposed legislation is mandated by Executive Order 13175.\2\ It is not
too late; the Tribes can be consulted and will provide recommendations
for amendments to this proposed legislation.
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\2\ 65 Fed. Reg. 67249-67252 (November 9, 2000).
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BACKGROUND
The Purpose of the Native Allotment Act of 1906 Was To Grant Title to
Alaska Natives of Land Necessary for Subsistence
Before I provide my analysis of S. 1466, a brief discussion of the
Alaska Native Allotment Act may be helpful. In 1906, Congress enacted
the Alaska Native Allotment Act because Native people in Alaska were
starving to death due to the encroachment of lands necessary for
subsistence.\3\ Prior to 1906, Alaska Natives could not get title to
land they used to obtain the necessary resources for food, shelter and
clothing. Congress intended that the Secretary would convey allotments
to Alaska Natives to preserve the subsistence traditions, not destroy
them. Protecting traditional uses of land and resources remains equally
important today.
---------------------------------------------------------------------------
\3\ Report on Conditions in Alaska, by James W. Witten, Special
Inspector, General Land Office (1903).
---------------------------------------------------------------------------
The legislative history of the Allotment Act establishes that prior
to the passage of the Act, non-native encroachment on Native lands
caused widespread devastation which the federal government failed to
prevent even though it had a duty to protect Native use and
occupancy.\4\ The government's failure resulted in the starvation of
Native men, women, and children throughout Alaska. This was such an
acute problem that President Roosevelt sent a special investigator to
Alaska in 1903 in an attempt to alleviate the suffering and death,
caused the inability of Native people to access and harvest the
traditional resources.\5\
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\4\ Pence v. Kleppe, 529 F.2d 135, 141 (9th Cir. 1976).
\5\ Report, James W. Witten, at 32-33.
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It must be remembered that by 1903, the Alaskan ``gold rush'' had
been underway for almost ten years. Congress knew the heavy traffic
through Alaska to the goldfields greatly affected the traditional land
uses and possessory rights of Alaska's Native people. There was also
substantial traffic from the salmon canneries, oil production, copper
mining and commercial logging. These were all activities that took a
heavy toll on the same resources that provided food, shelter and
clothing to Native Alaskans. The solution was the Alaska Native
Allotment Act that carved out allotments of 160 acres of land so that
crucial subsistence activities could continue undisturbed for
generation after generation.
Until 1970, the Allotment Act Was a Well Kept Secret
Unfortunately, the government agencies responsible for carrying out
the allotment program did not agree that conveyance of allotments was
necessary. Consequently, in the first fifty-four years of the Alaska
Native Allotment Act only 78 allotments were granted,\6\ and as of
1970, only 245 allotments had been conveyed.
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\6\ David Case & David Voluck, Alaska Natives and American Laws 110
(2d ed. 2002) (citing Bureau of Indian Affairs 1956-1993 Annual
Caseloads Report, Summary of Native Allotment Numbers (Juneau 1994)).
---------------------------------------------------------------------------
In 1970, when repeal of the Alaska Native Allotment Act was
imminent an effort was finally undertaken to implement the allotment
program and assist those desiring to file applications. Because of
these efforts, approximately 10,000 allotment applications were filed
and pending before the repeal of the Act in 1971 by the passage of the
Alaska Native Claims Settlement Act (ANCSA).\7\ ANCSA contained a
provision that saved pending allotment applications.
---------------------------------------------------------------------------
\7\ 43 U.S.C. 1617.
---------------------------------------------------------------------------
Considering that there were far more than 10,000 Alaska Natives in
the state in 1971, the 10,000 allotment applications filed by 1971 were
only a fraction of what should have been submitted. The problem has
never been that there were too many applications filed but rather the
process used by the government for deciding Native allotment cases was
lengthy, complicated and costly. This same process was not used for
homestead and other similar claims for land in Alaska and consequently
those other claims were finalized long ago.
In 1980, Congress Attempted To Streamline the Allotment Adjudication
Process But It Failed
In 1980, Congress again tried to provide finality to Native
allotments by the passage of Section 905, of the Alaska National
Interest Lands Conservation Act (ANILCA).\8\ Section 905 was designed
to remove many of the administrative barriers to obtaining an allotment
by authorizing the Secretary of Interior to ``legislatively'' approve
some, but certainly not all, of the pending allotments. Legislative
approval eliminated the need for costly and lengthy administrative
hearings. The will of Congress was thwarted when the State of Alaska
protested some 6,000 applications as a way to prevent legislative
approval. It is unknown how many allotments have been legislatively
approved. Allotments not legislatively approved, require proof that the
applicant's use of the land was substantially continuous for more than
5 years, potentially exclusive of others. There are approximately 4,000
pending allotment parcels requiring adjudication of use and
occupancy.\9\ Some of these very old cases in need of hearings will be
further complicated or unfairly denied because many of the applicants
and first hand witnesses have died.
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\8\ 43 U.S.C. 1634.
\9\ There are approximately 2,800 applications, but each
application may have up to four parcels. 1.6 is the average number of
parcels in an application. A Report Concerning Open Season for Certain
Native Alaska Veterans for Allotments, Prepared for Congress by the
Department of the Interior in Response to Section 106 of Public Law
104-42, p. 6 (June 1997).
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Many have failed to obtain allotments because BLM has interpreted
the Allotment Act in a restrictive and harsh manner. For example, until
a 1976 federal court decision, approximately one thousand applications
were denied because the government refused to provide Native allotment
applicants with a due process hearing to determine facts in dispute.
Some of these applications were reopened but too many remain closed
even today.
Although some of the restrictive interpretations and policies of
earlier administrations have been reversed by the federal courts and by
Secretarial Order, many past interpretations and policies continue.
More than any other factor, the government's restrictive
interpretations have caused the delay in processing Native allotments.
To illustrate this point, one need only consider that in Alaska there
are no pending homestead applications nor did the processing of those
applications require lengthy and costly adjudication.
Most importantly, there are allotment applications that BLM closed
unlawfully which have not yet been reinstated but should be.
Eliminating the right to reinstate those applications would be a second
denial of due process.
S. 1466 ELIMINATES IMPORTANT RIGHTS OF NATIVE ALLOTMENT APPLICANTS THAT
HAVE BEEN SECURED BY FEDERAL LAW, THE U.S. CONSTITUTION AND DECISIONS
OF THE INTERIOR BOARD OF LAND APPEALS
S. 1466 eliminates important due process safeguards that were
obtained for Native allotment applicants after years of litigation
before the IBLA and federal courts. Further, S. 1466 forever eliminates
the opportunity of allotment applicants to resurrect applications that
were lost through no fault of the applicant. S. 1466 also forever
eliminates the opportunity to reinstate those applications that BLM
closed in violation of the applicants' constitutional rights.
Congress Provided Allotment Applicants the Right To Amend Erroneous
Legal Descriptions of Allotments Because the Government Caused
the Errors
Section 304(f)(5) eliminates the right of Native allotment
applicants to amend an allotment description. It is important to
understand that the right to amend the legal description of an
allotment arose from the recognition by Congress that a significant
percentage of allotment applications contained errors that were not the
fault of the applicants.\10\
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\10\ S. Rep. No. 413, 96th Cong., 2d Sess. 237-38, reprinted in
1980 U.S. Code Cong. & Ad.News 5070, 5181-82.
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The right to amend allotment descriptions under Section 905(c) of
ANILCA is allowed only in very limited situations; it can be applied
only in situations where it is proven the land as described in the
application is not what the applicant intended to apply for as the
allotment. Thus, an acceptable amendment would describe the land that
the applicant originally intended to claim as the allotment. Proof of
the applicant's intent is now submitted to BLM by sworn affidavits or
by testimony during a hearing.
It is well known and accepted that in 1970-1971, the BIA in Alaska
sent the handwritten allotment applications to locations in California
and elsewhere for typing. The typed applications were returned to BLM
but many contained erroneous legal descriptions; either the location
was incorrect or the acreage amount was incorrect. Thus, the
descriptions of some allotments must be amended to correct mistakes the
government made in the first place.
Consequently, if the right to amend is eliminated as contemplated
by S. 1466, it is likely that some applicants will lose their
allotments because they will not be able to prove use and occupancy of
land they did not originally intend to apply for. It is also possible
that even if they received land they did not intend to apply for,
valuable improvements elsewhere on land they did intend to apply for
would be lost.
Congress Provided for Allotment Applicants' Right To Reinstate
Allotments That Were Relinquished Unknowingly and Involuntarily
Section 304(f)(3) of S. 1466 eliminates the right of Native
allotment applicants to request reinstatement of relinquished allotment
land even if the relinquishment is invalid. However, the right to
reinstatement of an allotment on the grounds that a relinquishment is
invalid is addressed in Section 905 of ANILCA.\11\ Further, the IBLA
holds that BLM must reopen a relinquished allotment case and determine
if the relinquishment is invalid.\12\ An invalid relinquishment under
the IBLA decisions is one that was unknowingly or involuntary.\13\ The
right to get a case reopened so the government can investigate whether
a past relinquishment is valid is an important right because in these
cases the applicant may have been wronged once already and simple
fairness dictates wrongs be righted, not compounded.
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\11\ 43 U.S.C. 1634(a)(6).
\12\ Heirs of William Lisbourne, 97 IBLA 342 (1987).
\13\ Matilda Johnson, 129 IBLA 82 (1994).
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Allotment Applicants Have a Constitutional Right to Reinstatement of
Allotments That Were Closed Without an Opportunity for a
Hearing
Sections 304 (f)(1) and (f)(3) of S. 1466 eliminates all rights to
reinstate closed allotment cases. However, federal courts have already
ruled that applicants (or heirs) have the right to get closed allotment
cases reinstated if BLM closed the case without an opportunity for a
hearing because such a closure was in violation of the applicants' due
process rights.\14\ Before these federal court decisions, BLM routinely
rejected and closed allotment cases whenever it believed there was
insufficient evidence to prove the applicant's qualifying use of the
land claimed for an allotment. The applicants never had a chance to
prove otherwise.
---------------------------------------------------------------------------
\14\ Pence v. Kleppe, 529 F.2d 135 (9th Cir. 1976); Pence v.
Andrus, 586 F.2d 733 (9th Cir. 1978).
---------------------------------------------------------------------------
Until 1976 after the federal court decision requiring BLM to
provide applicants with hearings, BLM had never allowed an opportunity
for the applicant to present evidence of qualifying use to an impartial
decision maker.Thus, hundreds of allotment applications were closed in
violation of due process guarantees. Too many allotment cases remain
closed today \15\ because of BLM's failure to reopen closed cases
unless ``the applicant, legal representative or BIA, requests
reinstatement and presents clear and compelling evidence that the file
was erroneously closed.'' \16\ Eliminating the right to reinstate
allotment cases that were closed in violation of the applicants' due
process rights would only compound the original violation and lead to
certain litigation. Although, the U.S. Supreme Court has repeatedly
held that Congress has plenary authority over Indian affairs, which
would include Native allotment matters, that Court has also held that
Congress when exercising its plenary authority must comply with
guarantees of the U.S. Constitution,\17\ such as the due process clause
and the just compensation clause.\18\ Accordingly, Congress should
remove Sections 304(f)(1) and (f)(3) from S. 1466. Instead, BLM should
reinstate those unlawfully closed cases on its own initiative.
---------------------------------------------------------------------------
\15\ A recent internal audit by the Central Council of Tlingit and
Haida Indian Tribes of Alaska discovered that 66 percent of the
allotment cases under its jurisdiction were closed by BLM in violation
of the applicants' due process rights. These cases have never been
reopened by BLM but the Tribe has begun work for reinstatement of these
cases.
\16\ BLM Alaska Native Allotments Handbook, Section II at 13
(1991).
\17\ United States v. Sioux Nation of Indians, 448 U.S. 371,
(1980). See also, Delaware Tribal Business Committee v. Weeks, 430 U.S.
73, 84 (1977).
\18\ See, Babbitt v. Youpee, 519 U.S. 234 (1997); Bolling v.
Sharpe, 347 U.S. 497 (1954); United States. v. Antelope, 430 U.S.
64191977); Hodel v. Irving, 481 U.S. 704 (1987).
---------------------------------------------------------------------------
Allotment Applicants Now Have a Right To File Reconstructed Allotment
Applications Where the Government Lost Their Original
Applications and This Right Includes a Hearing To Present
Evidence That the Original Application Was Timely Filed
Section 304(f)(1) eliminates all rights to file reconstructed
applications in cases where the government lost the original
applications. Presently under rulings of the IBLA applicants (or heirs)
have the right to file reconstructed applications in cases where the
government lost their original application, and the BLM has a
corresponding duty to investigate those claims and provide the
opportunity for an evidentiary hearing.\19\
---------------------------------------------------------------------------
\19\ Timothy Afcan, Sr., 157 IBLA 210 (2002).
---------------------------------------------------------------------------
Unfortunately, Section 304(f)(2) eliminates this right and instead
allows BLM to reject previously filed reconstructed applications unless
the BLM's file already contains the following evidence:
1. the name of the person who took the original application
and the agency that person worked for;
2. the month and the year the original application was
submitted;
3. the specific address where the original application was
submitted;
4. two affidavits attesting to the applicants' qualifying
use; and
5. two affidavits from non-family members attesting that they
know the original applications were filed.
The long list of evidentiary requirements as set forth in Section
304 (f)(2) effectively creates a new standard to prove the government
lost an allotment application. In other words, the amount and types of
evidence in this list far exceeds what the IBLA now requires to prove
an application was lost.\20\ Thus, much of the newly required evidence
is currently not in BLM's record for existing cases because it has
never before been required. It will be impossible for existing cases to
meet this new standard because the new standard becomes effective when
S. 1466 is enacted so there will be no time for applicants to
supplement BLM's records. It is ironic that BLM's repeated attempt to
apply the harsh standard described in Section 304(f)(2) has repeatedly
been reversed by the IBLA.\21\
---------------------------------------------------------------------------
\20\ Alice Brean v. United States, 159 IBLA 310 (2003) (holding
that the IBLA will set aside BLM's rejection of a reconstructed
allotment if the Board decides there is a question of fact whether the
application was timely filed and BLM has not provided the applicant
with a hearing required by the due process clause).
\21\ Timothy Afcan Sr., 157 IBLA at 220; Alice Brean, 159 IBLA at
323.
---------------------------------------------------------------------------
Allotment applicants with existing reconstructed applications on
file with BLM have never been informed of this new and excessive
evidentiary standard. Considering that the applications were lost in
1970-1971, the details required by the new standards some thirty years
later might be impossible to meet. This provision is not only grossly
unfair but will surely result in costly and lengthy litigation.
Allotment Applicants Now Have a Right to a Hearing Conducted by an
Impartial Administrative Law Judge and Governed by Existing
Federal Regulations
Section 501 of S. 1466 may eliminate the allotment applicants'
right to a hearing conducted by an impartial administrative law judge
and governed by federal regulations. Section 501 establishes a new but
undefined process for hearings that may or may not be governed by
existing federal regulations.Additionally, under the language of the
proposed legislation may even be conducted by any employee of the
Department of the Interior including BLM employees.
Currently, applicants (or heirs) have a right to a hearing to
determine certain factual issues in their allotment cases, and the
hearings are conducted by impartial judges from the Office of Hearings
and Appeals under rules set by federal regulations. These hearings meet
due process guarantees.\22\ Unless the Department of the Interior
establishes a duplicate hearings and appeals process, it is unlikely
that due process guarantees will be met. Further, it is certain that a
duplicate hearing system will only add more cost and time to the
already lengthy hearing process.
---------------------------------------------------------------------------
\22\ Pence v. Andrus, 586 F.2d 733 (9th Cir. 1978).
---------------------------------------------------------------------------
It is obvious to those knowledgeable about Native allotments that
the allotment hearings process is unduly slow. Nevertheless, resolution
of this problem should not unfairly deprive applicants of impartial
hearings governed by existing federal regulations that are familiar and
lend certainty to the hearings process.
One of the reasons the hearings process is unduly slow is that the
Office of Hearings and Appeals generally schedules hearings only in the
summer months which drastically reduces the total number of allotment
hearings that occur each year. For example, in the year 2003 less than
10 allotment hearings will occur in Alaska.
To improve the hearing process, a better alternative would be for
Congress to authorize and fund the Office of Hearings and Appeals to
open an office in Anchorage and increase the number of existing
administrative law judges. These judges could hold allotment hearings
year-round and could do other necessary work such as probate matters.
Moreover, these judges could continue to conduct hearings under current
federal regulations which would also save money, time and uncertainty
in the processing of allotment applications.
Allotment Applicants Now Have a Right to an Appeal Before the IBLA Is
Governed by Federal Regulations
Section 501 also establishes a new appeals process that may or may
not be governed by existing federal regulations and may be decided by
any employee of the Department of the Interior including BLM employees.
However, applicants (or heirs) now have a right to appeal BLM's
decision to the IBLA which is staffed by impartial administrative law
judges governed by federal regulations.
Although many appeals take the IBLA more than several years to
decide, the resolution of this problem should not unfairly deprive
allotment applicants' access to an impartial appeals Board that has the
expertise to decide allotment issues. It could take a new appeals body
years to gain the expertise necessary to issue thorough and competent
appeals decisions. In addition, if the new appeals body did not have
the expertise to render a thorough and competent decision which an
appellant has a right to receive, it is likely federal courts would
remand the incompetent decisions. This would only add to the years it
now takes to receive an appeal decision.
A better alternative to resolve the problem of the delays at the
appeal level is for the IBLA to receive sufficient resources that would
allow the Board to decide pending and future appeals in a more
efficient and timely manner. This solution would also prevent the
unnecessary duplication and excessive costs that would occur under the
new appeals body contemplated by S. 1466. Moreover, it would save time
because the IBLA already has the expertise to render competent appeal
decisions and the necessary federal regulations governing the IBLA
appeal process are already in place.
CLOSING
Congress enacted the Alaska Native Allotment Act in 1906 so that
Alaska Natives would obtain title to land and resources that had fed,
clothed and sheltered them for thousands of years.Many Alaska Natives
still wait for that promised title.
We urge this Subcommittee to return the proposed legislation to DOI
with instructions to conduct meaningful consultation with Tribes in
Alaska. After such consultation, we will submit amendments to S. 1466
that will protect rights to Native allotments while eliminating many of
the factors that now delay finalizing allotment cases.
Respectfully submitted,
Edward K. Thomas,
President.
______
Native Village of Selawik,
Selawik IRA Council,
Selawik, AK, August 6, 2003.
Hon. Lisa Murkowski,
Senate Subcommittee on Public Lands and Forest, Dirksen Office
Building, Washington, DC.
Subject: Alaska Land Transfer Acceleration Act of 2003
Dear Senator Murkowski: On behalf of the Native Village of Selawik,
this letter is to express our support in the Testimony of Edward
Thomas, President, Central Council Tlingit and Haida Indian Tribes of
Alaska.
If you have any questions, please contact me at (907) 484-2165 or
fax to (907) 484-2226.
Sincerely,
Clyde Ramoth,
President.
______
Sitka Tribe of Alaska,
Sitka, AK, August 6, 2003.
Hon. Lisa Murkowski,
Senate Subcommittee on Public Lands and Forests, Dirksen Office
Building, Washington, DC.
Re: Testimony of Lawrence Widmark, Tribal Chairman for Sitka Tribe of
Alaska on Senate Bills 1421 and 1466
Dear Senator Murkowski: I write to provide written testimony on
behalf of Sitka Tribe of Alaska regarding Senate Bills 1421 (the Alaska
Native Allotment Subdivision Act) and 1466 (the Alaska Land Transfer
Acceleration Act of 2003). Thank you for accepting my testimony on this
legislation.
These two bills have significant implications to our Tribal
citizens, whose livelihoods tie directly to the lands and waters
surrounding Sitka. Sitka Tribe is proud to be a federally recognized
tribal government, organized under the Indian Reorganization Act of
1934, as amended. As such, Sitka Tribe appreciates the relationship
that our Tribal government has with the federal government, as it
reiterates the respected sovereign rights of our tribal government.
Particularly, Sitka Tribe takes Executive Order 13175 \1\ regarding the
Federal responsibility to consult with federally recognized Indian
Tribes very seriously. Sitka Tribe is insulted by the lack of
consultation regarding these two Congressional bills as directed by the
Executive Order. As such, Sitka Tribe requests that the Department of
Interior hold consultations on these two very important pieces of
legislation immediately.
---------------------------------------------------------------------------
\1\ 65 Fed. Reg. 67249-67252 (Nov. 9, 2000).
---------------------------------------------------------------------------
Sitka Tribe urges the Senate Subcommittee on Public Lands and Forests
to consider an alternative way to complete adjudication of
federal lands in Alaska other than S. 1466
Sitka Tribe opposes Senate Bill 1466 as written because it seeks to
finalize land selections in Alaska by denying Alaska Natives important
rights to apply for and receive native allotments. Sitka Tribe would
like to initiate its comments on this bill by noting that it supports
the testimony of Edward Thomas, of the Central Council of Tlingit and
Haida Indian Tribes of Alaska on S. 1466. Additionally, Sitka Tribe is
concerned about the current language of Senate Bill 1466 because:
Senate Bill 1466 fails to address the BLM's failure to
diligently adjudicate native allotments over the past thirty
years; and rather seeks to punish Alaska Natives by ending
their rights to attempt to get title to land in Alaska; S. 1466
legitimizes BLM's practice of stalling native allotment cases
by terminating native allotment applicants' chances of
receiving allotments where BLM itself took illegal action.
S. 1466 ignores the fact that Alaska Native allotment
applicants are just now receiving the technical assistance
required to fully fight for rights to allotments; despite this,
S. 1466 proposes to terminate individuals' rights to reopen
allotment cases that should have never been closed. Upon a file
review of closed allotments in the Sitka area in Spring 2003,
Sitka Tribe and Alaska Legal Services staff found six closed
allotment cases that were closed erroneously and should be
reopened. If S. 1466 becomes law, Alaska Natives who could
receive an allotment will be denied this opportunity.
S. 1466 fails to acknowledge the beneficial nature of native
allotments to Alaska Natives and to the Alaska economy. Under
current economic conditions, Alaska Natives face great
challenges to finding financial security. Having a native
allotment is one of the few avenues for Alaska Natives to
positively impact the economy and sustain themselves and their
families.
S. 1466 violates the Constitutional rights of native
allotment applicants by denying legitimate applicants from
receiving due process in the denial of their allotment
application, by denying legitimate applications a hearing and
by not allowing for judicial review of agency action.
S. 1466 gives BLM undefined discretion to hold hearings on
native allotment applications and would not allow for judicial
review of these decisions.
Sitka Tribe is thus primarily concerned that S. 1466 will further
stack the cards against tribal citizens who seek to receive native
allotments. Sitka Tribe thus asks that if such great rights to be
denied allotment applicants that native allotment applicants at least
receive a five year period in which to reopen allotment cases that have
been illegally closed, and Tribal governments receive additional
resources to assist its tribal citizens with such applications.
Sitka Tribe of Alaska opposes Senate Bill 1421
Sitka Tribe believes Senate Bill 1421 is an attempt by the
Department of Interior to shirk its trust responsibility to native
allottees and townsite owners in Alaska and serves to undermine the
rights of native allottees and townsite owners. Native allottees and
townsite owners received title to their lands from the federal
government, and the federal government has an oversight responsibility
over these lands, to ensure that the native owners' property rights are
not violated. By consenting to state or local jurisdiction over these
otherwise federal pieces of property, the owners stand to have their
property rights infringed upon by the State, and the federal government
will not have a leg to stand on to contradict these infractions. This
is a terrible result for restricted property owners in Alaska, as land
is of integral importance to them, and this legislation stands to
undermine the status of their lands by giving the State jurisdiction to
say exactly how big a lot must be and to dictate other details to be in
compliance with state or local law.
Sitka Tribe understands that some restricted property owners in
Alaska may want to have their subdivisions approved by the state or
local authorities in order for their property to be economically viable
for them. However, new Congressional legislation granting state control
over this issue is not necessary to grant restricted property owners
the right to subdivide their land and dedicate public easements. This
authority already exists. Further, to address this issue, Sitka Tribe
believes that the current regulation allowing for the partition of
native allotments, 25 C.F.R. Sec. 152.33, should be amended through
consultation with federally recognized tribal governments in Alaska to
address this issue. Sitka Tribe contends that restricted properties
should be governed and administered under federal law and regulation,
and that to enact a bill that says otherwise is a clear violation of
the federal government's responsibility towards Alaska Natives.
In closing, I would like to reiterate that Sitka Tribe exists to
look after the health, safety, welfare and cultural preservation for
approximately 3,100 tribal citizens. Sitka Tribe believes that Senate
Bills 1421 and 1466 jeopardize the welfare and culture of our tribal
citizens. For this reason, Sitka Tribe opposes these bills as written.
If you have any further questions about this testimony, please do not
hesitate to contact Jessica Perkins, Resources Protection Director for
the Sitka Tribe.
Sincerely,
Lawrence Widmark,
Tribal Chairman.
______
Anchorage, AK, August 6, 2003.
Dear Senator Murkowski: I attended the Senate Energy and Natural
Resources Committee field hearing today on S. 1354 (the Cape Fox Land
Entitlement Act) at the Loussac Library here in Anchorage. At the end
of the hearing, you invited comments and said that the comments should
be sent to your office to be included in the hearing record.
Accordingly, I would like to have this e-mail included in the hearing
record.
During the hearing, Mark Rey, Undersecretary of Agriculture,
described how the Forest Service would determine equal value for the
land that is proposed to be traded. He essentially said that the trade
would create administrative efficiencies for the Forest Service. This
is bureaucratic myopia at its best. I was surprised that not one word
was mentioned about trying to estimate user values.
Having lived in Juneau for several years, I know that the Berners
Bay area has high use and value to Juneau area residents. Some of these
uses can be measured in monetary terms, such as the economic impact on
commercial fishing and outdoor recreation. However, there are other
values, such as spiritual values, which are difficult to measure in
monetary terms but, nevertheless, need to be included in any estimate
of land value.
Fortunately, there are now economic methodologies that can be used
to arrive at a more holistic assessment of land value and they should
be used here. While this type of analysis may not appear to be as
(falsely) precise as a traditional land assessment, it is more accurate
in that it looks at the whole iceberg instead of just the more visible
tip.
I encourage you to insist that any analysis of land values by the
Forest Service place its emphasis on values gained or lost by the
public, not convenience to the agency. While administrative
efficiencies to the agency should get some consideration, these
benefits are often based on ephemeral scenarios. The public would not
be served well by any land trade that essentially ignores long-standing
values associated with all users.
Sincerely,
George Matz.
______
Chilkat Indian Village,
Klukwan, AK, August 5, 2003.
Hon. Lisa Murkowski,
Senate Subcommittee on Public Lands and Forest, Dirksen Office
Building, Washington, DC.
Dear Senator Murkowski: I respectively request that you accept our
letter in support of the testimony submitted by President Edward Thomas
of the Central Council Tlingit and Haida Indian Tribes of Alaska on
proposed legislation entitled the ``Alaska Land Transfer Acceleration
Act of 2003''.
The Chilkat Indian Village has a contract with the Bureau of Indian
Affairs to assist Alaska Natives with the allotment application
process. The process continues to have long and numerous delays; many
of the allotment applications sit inactive for decades, meanwhile the
land is usually transferred to other entities such as the State of
Alaska, University of Alaska or the Mental Health Trust. Many Native
Allotments in the lands surrounding Klukwan, Alaska were properly
claimed and an application was properly submitted as early as 1907.
However it was not until the 1980's that the hearings for these
allotments were completed and the applications were found to be valid.
The State of Alaska, University of Alaska, and the Mental Health Trust
has continually refused to reconvey the lands back to the Bureau of
Land Management, there has been an agreement to reconvey the lands back
and then nothing is completed with the transfer process.
Executive Order 13175 mandates meaningful consultation with the
Tribes on this proposed legislation. Consultation with the Tribes of
Alaska has not taken place in regards to this legislation. Consultation
with the Tribes would be mutually beneficial as many of the Tribes in
Alaska have contracts or compacts with the Bureau of Indian Affairs to
assist Alaska Natives with the allotment application process, therefore
the tribes' expertise in land matters would be quite helpful in
developing and implementing solutions to finalize land claims without
sacrificing Native Allotments.
The Chilkat Indian Village is quite concerned with this proposed
legislation, and how it will affect the Native Veterans Allotment
process. The Native Veterans of the Village of Klukwan sacrificed their
youth for our Great Country, please don't force them to endure one more
sacrifice. All of the Native Veteran Allotment Applications that are
still pending should be legislatively approved as soon as possible.
We urge the Subcommittee to return the proposed legislation to the
Department of Interior with instructions to conduct meaningful
consultation with the Tribes of Alaska. After such consultation, the
Chilkat Indian Village will request the Subcommittee to amend the
proposed legislation so that rights to Native Allotments will not be
sacrificed.
We greatly appreciate your time and efforts on our behalf; if we
can be of any further assistance please do not hesitate to contact our
offices.
Respectfully submitted,
Jones P. Hotch Jr.,
President.
______
Maniilaq Association,
Kotzebue, AK, August 5, 2003.
Hon. Lisa Murkowski,
Senate Subcommittee on Public Lands and Forest, Dirksen Office
Building, Washington, DC.
Dear Senator Murkowski: Maniilaq Association is an Alaska Native
Regional Non-Profit Association, representing 12 federally recognized
tribes of Northwest Alaska. Maniilaq, provides health cart, education,
tribal, and social programs, including planning and development, which
support sovereignty, governance, and maintenance of the 12 tribes.
On behalf of the tribes and it's service area, Maniilaq has
compacted with the Bureau of Indian Affairs Realty Program to provide
services within the Northwest Arctic Borough. Maniillaq strongly
supports the view as presented in the letter of Edward Thomas,
President of Central Council, Tlingit and Haida Indian, Tribes of
Alaska on S. 1466, the Alaska Land Transfer Acceleration Act of 2003.
We urge the subcommittee to return the proposed legislation to DOI
to conduct consultations with the Tribes in Alaska.
Sincerely,
Helen A. Bolen,
President/CEO.
______
Alaska Realty Consortium,
Anchorage, AK, August 6, 2003.
Hon. Lisa Murkowski,
Senate Subcommittee on Public Lands and Forest, Dirksen Office
Building, Washington, DC.
Subject: Alaska Lands Transfer Acceleration Act of 2003
Dear Senator Murkowski: The Alaska Realty Consortium; is an
organization formed by the Copper River Native Association,Aleutian/
Pribilof Islands Association, Inc., and Chugachmiut Inc. representing
and acting in the best interest of Native Allotment Owners, Applicants
and Heirs of the Native Village of Cantwell, Copper Center, Gakona,
Gulkana, Tazlina, Cordova, Nanawalek, Port Graham, Tatitlek Chendga
Bay, Nelson Lagoon, St. George, St. Paul and Unga.
On behalf of the Tribes and the allotment owners in the above
service areas, Alaska Realty, Consortium supports the testimony of Mr.
Edward Thomas, President of the Central Council Tlingit and Haida,
Indian Tribes of Alaska to be given to the United States Senate
Committee on Energy and Natural Resources; Subcommittee on Public Lands
and Forest Hearing on Senate Bill 1466 (Alaska Land Transfer
Acceleration Act of 2003) on August 6, 2003.
Alaska Realty Consortium provides Realty Services and assist(s) all
Native Allotment Landowner's named above and our trust responsibility
is to ensure that each applicant receives title to their selection of
an Allotment. Currently the Alaska Realty Consortium, serves 205
original allotee's and their Heir's with over 34 allotments that are
pending/closed erroneously do to a legal defect.
The Alaska Realty Consortium has an obligation to it's member and
will not stand aside on this particular issue without supporting the
President of Central Council Tlingit and Haida Indian Tribes of Alaska.
To do so would miss represent to best interest of the Native People
within each of the Service Areas.
Abraham Snyder,
Realty Officer.
______
Juneau, AK, August 19, 2003.
Senator Lisa Murkowski,
Hart Senate Building, Washington DC.
Dear Senator Murkowski: I will take this opportunity to provide you
with information regarding historical Tlingit use of the Berners Bay--
Kensington Mine area.
I am a Tlingit, an Eagle--Kaagwaantaan, born and raised in Juneau.
I am a professional geologist and registered environmental scientist
formerly employed by the Environmental Protection Agency, the U.S.
Geological Survey and the Alaska Department of Environmental
Conservation. I also served for twenty years as a Council Member or as
the President of the Juneau Tlingit and Haida. I recently stepped down
as Chairman of the Board for Goldbelt, Incorporated.
I was raised in Juneau with my Grandfather Henry Cropley and my
Grand Uncle Jake Cropley (both Raven Dog Salmon). Jake Cropley was the
last traditional leader of the Auk People and he is referenced
frequently in the Goldschmidt and Haas reports on Tlingit possessory
rights and land uses. Jake Cropley's son, Ike Cropley, is my uncle and
he is willing to confirm information described in this letter.
During my 27 years of environmental and cultural work in Southeast
Alaska, I have interviewed numerous traditional Tlingit leaders in
regards to the uses of the Berners Bay area. I also have my family's
history, as taught to me, to draw upon.
I was given permission to speak about the traditional family uses
and ownership of the Kensington Mine and Echo Cove areas by Judson and
Austin Brown, both Klukwan Eagles--Dakl aweidi Clan. Judson Brown was a
founding member of the Sealaska Heritage Foundation.
Judson and Austin Brown's Grandfather homesteaded the Comet Beach
area under territorial law at the turn of the 20th century. He also
marked and claimed the Sherman Creek Kensington Mine area according to
traditional Tlingit law but granted the right for mining companies to
work in the area.
According to the Brown men, the Comet Beach and Kensington Mine
area was used for berry picking and trapping, primarily mink. Some goat
meat was obtained from the area as well. Their Grandfather homesteaded
the Comet Beach site in 1904 and many Tlingits, including their
Grandfather and his family, worked at the mines and lived subsistence
lifestyles right in the area while they worked. The resources were not
negatively impacted by mining. The Browns also said they are not aware
of any real cultural/historical resource sites in the proposed mine
area (Please note this is the proposed land exchange area).
My interviews with other Tlingit Elders confirm the Brown's
descriptions.
In 1999 Austin Brown sent an open letter to numerous federal, state
and Native organizations outlining his family's ownership and use of
the Kensington Mine area and encouraged them to support the Coeur-
Kensington Project. Mr. Brown's letter stated his belief that the
employment would be good for Native People and the environmental/
cultural resource aspects were well addressed. I can fax you a copy if
you would like one.
My Grandfather and Grand Uncle, Henry and Jake Cropley, both worked
for the mining industry in Juneau and Douglas and my Grandfather
explored the Berners Bay area for gold as a mining company employee.
When I was a young geologist, my Grandfather explained to me that the
Kensington area uplands near Berners Bay were not culturally
significant, the upland was not really used that much for other
purposes and the subsistence would not be bothered by the mining.
The statements of the Brown family, other Tlingit Elders and my
Grandfather and Grand Uncle all confirm each other. These are people
who actively worked in and supported the mining industry in the Berners
Bay area. They had a high regard for the land and would not have done
anything contrary to traditional Tlingit culture, customs or practice.
I have also interviewed younger Tlingit or Non-native people in
regards to burials and cultural sites in or near Berners Bay or Echo
Cove. These claims or concerns invariably turned out to be without
foundation, could not be verified with field investigations or were of
far less significance than originally asserted.
To summarize, the Berners Bay area was used for commercial trading,
mining and subsistence purposes by numerous Tlingit Clans and Groups.
It was claimed by the Auk but shared with and used by many Tlingit
Clans and Families.
The upland areas where the old mines such as the Kensington are
located are claimed and recognized as the territory of the Chilkat and
Chilkoot People (such as the Brown Family). These people lived near the
mines in seasonal camps during the subsistence harvest seasons, and
worked at the mines during the rest of the year. They were much more
familiar with traditional practices and customs than we Natives of
today and they welcomed and worked with the mining industry in the
Berners Bay and upland areas. They would not have done so if it was
culturally inappropriate.
During my tenure as Chairman, Goldbelt management sent in a letter
of support for the original Sealaska-Cape Fox land exchange. I know
that the supportive position of the Corporation has not changed. During
that same period, as Chairman, I sent a letter on behalf of Goldbelt to
Sealaska and Cape Fox expressing support for the land exchange and
welcome to the traditional area of Goldbelt Shareholders. If you need
additional details, please contact Gary Droubay Chief Executive Office
of Goldbelt, Incorporated.
I hope this has been of some help to you.
Respectfully,
Randy Wanamaker.
______
Kotzebue IRA Council,
Kotzebue, AK, August 21, 2003.
Hon. Lisa Murkowski,
U.S. Senator, Senate Subcommittee on Public Lands and Forest, Dirksen
Office Building, Washington, DC.
Subject: The Alaska Land Transfer Acceleration Act of 2003
Dear Senator Murkowski: The Native Village of Kotzebue, a Federally
Recognized Tribal Organization, has a contract with the BIA to provide
realty services for Native Allotment Owners, Applicants and their Heirs
and also advocates for the protection of the rights of its members,
does hereby respectfully request that you except this letter expressing
our concerns over the proposed Bill S. 1466 entitled ``The Alaska Land
Transfer Acceleration Act of 2003''. Although the stated goal of the
Bill, to speed up the transfer of land to Native Corporations and the
State of Alaska is admirable, the way it sets out to accomplish that
goal, by eliminating the rights of individual Native Allotment
applicants, is unconscionable and a violation of the trust
responsibility that has been expressed by all three branches of the
U.S. government.
As far back as 1787 in Article III of The Northwest Ordinance the
U.S. government pledged that ``the utmost good faith shall always be
observed towards the Indians; their land and property shall never be
taken from them without their consent; and in their property, rights
and liberty, they never shall be invaded or disturbed, unless in just
and lawful wars authorized by Congress; but laws founded injustice and
humanity shall from time to time be made, for preventing wrongs being
done to them, and for preserving peace and friendship with them''. A
quick review of history will show that the government seldom lived up
to its promise, but even in more recent times the government has
reaffirmed its position.
In Seminole Nation v. United States, 316 U.S. 286 (1942), in a
decision written by Justice Frank Murphy, he stated ``This Court has
recognized the distinctive obligation of trust incumbent upon the
Government in its dealings with these dependent and sometimes exploited
people.'' He went on to say, ``Under a humane and self-imposed policy
which has found expression in many acts of Congress, and numerous
decisions of this Court, it has charged itself with the moral
obligation of the highest responsibility and trust. Its conduct, as
disclosed in the acts of those who represent it in dealing with the
Indians should therefore be judged by the most exacting fiduciary
standards.'' (316 U.S. 286 [1942] (296-297).
The executive branch weighed in on this topic as recently as
November 20, 2000 when President William J. Clinton signed Executive
Order 13175, which mandated, among other things, that government
agencies must consult with affected tribes before submitting
legislation to congress--that would affect said tribes. This directive
was ignored by the Department of Interior in this case.
I believe your esteemed colleague Senator Daniel Inouye (HI), as
vice-chairman of The Senate Committee on Indian Affairs, articulated
the trust doctrine best: ``Because the United States has assumed the
trust responsibility for Indian lands and resources that arises out of
the cession of millions of acres of Indian land to the United States,
this trust responsibility is a shared responsibility. It extends not
only to all agencies of the executive Branch of our Government, but
also to the Congress. And so we must each do our part to assure that
the Unites States' trust relationship with Indian Nations and Native
Americans is generally honored'' (U.S. Senate 1995, 3). The land ceded
by Alaska Natives in particular has accounted for and continues to
account for the majority of the wealth enjoyed by our great State,
including the permanent fund, which was created by land taken from the
Inupiaq people of the North Slope, not to mention numerous minerals,
including gold, mined from lands ceded by native people across the
entire state. All we ask for in return for this vast wealth and the
hardship caused us by Americas insatiable appetite for oil and gold is
that the individuals be given title to land that their ancestors have
used for generations, a very small price indeed.
Please return the proposed legislation to the Department of
Interior so that they may fulfill their obligation to consult the
affected tribes. I also wish to convey my sincere hope that S. 1466
``The Alaska Land Transfer Acceleration Act of 2003'' will be amended
so that all pending native allotments will be legislatively approve. It
is the right thing to do.
Sincerely,
Ian Erlich,
Chairman.