[Senate Hearing 108-416]
[From the U.S. Government Publishing Office]
S. Hrg. 108-416
ALASKA NATIVE ALLOTMENT SUBDIVISION ACT; ALASKA LAND TRANSFER
FACILITIES ACT; OJITO WILDERNESS ACT; AND INVENTORY AND MANAGEMENT
PROGRAM FOR PUBLIC DOMAIN LANDS
=======================================================================
HEARING
before the
SUBCOMMITTEE ON PUBLIC LANDS AND FORESTS
of the
COMMITTEE ON
ENERGY AND NATURAL RESOURCES
UNITED STATES SENATE
ONE HUNDRED EIGHTH CONGRESS
SECOND SESSION
on
S. 1421 S. 1649
S. 1466 S. 1910
__________
FEBRUARY 12, 2004
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, Professional Staff Member
Scott Miller, Democratic Counsel
C O N T E N T S
----------
STATEMENTS
Page
Bingaman, Hon. Jeff, U.S. Senator from New Mexico................ 6
Clarke, Kathleen, Director, Bureau of Land Management, Department
of the Interior; accompanied by Henri Bisson, Alaska State
Director, BLM; and Linda Rundell, New Mexico State Director,
BLM............................................................ 7
Heath, Russell, Executive Director, Southeast Alaska Conservation
Council, Juneau, AK............................................ 48
Heinrich, Martin, City Councilor, Albuquerque, NM................ 27
Hession, Jack, Alaska Representative, Sierra Club, Anchorage, AK. 53
Mery, James, Senior Vice President for Lands and Natural
Resources, Doyon, Limited, Fairbanks, AK....................... 45
Murkowski, Hon. Lisa, U.S. Senator from Alaska................... 2
Pino, Peter M., Governor, Pueblo of Zia, Zia Pueblo, NM.......... 23
Rutherford, Marty, Deputy Commissioner, Alaska Department of
Natural Resources, Anchorage, AK............................... 31
Stevens, Hon. Ted, U.S. Senator from Alaska...................... 2
Thomas, Edward K., President, Central Council Tlingit and Haida
Indian Tribes of Alaska, Juneau, AK............................ 33
Wyden, Hon. Ron, U.S. Senator from Oregon........................ 1
APPENDIX
Additional material submitted for the record..................... 69
ALASKA NATIVE ALLOTMENT SUBDIVISION ACT; ALASKA LAND TRANSFER
FACILITIES ACT; OJITO WILDERNESS ACT; AND INVENTORY AND MANAGEMENT
PROGRAM FOR PUBLIC DOMAIN LANDS
----------
THURSDAY, FEBRUARY 12, 2004
U.S. Senate,
Subcommittee on Public Lands and Forests,
Committee on Energy and Natural Resources,
Washington, DC.
The subcommittee met, pursuant to notice, at 2:35 p.m., in
room SD-366, Dirksen Senate Office Building, Hon. Lisa
Murkowski presiding.
OPENING STATEMENT OF HON. RON WYDEN, U.S. SENATOR
FROM OREGON
Senator Wyden. The Subcommittee on Public Lands and Forests
will come to order.
First, as a result of the graciousness of Senator
Murkowski--and I very much appreciate her indulgence on this--
we are going to break with our practice. As the ranking
minority member, I traditionally follow Senator Craig, the
chair of the subcommittee, but as a result of the graciousness
of Senator Murkowski and the graciousness of Senator Craig, I
am going to be beginning the hearing and we anticipate our
colleagues coming very shortly.
Today, we are going to be looking at a number of bills, and
one of special importance to the people of Oregon is S. 1910.
This is a piece of legislation that is supported by the
administration. The Department of Agriculture will be
testifying to that effect. It would establish a forest health
research center in Prineville, Oregon. This is a center that
would help reduce wildfire risks throughout the West and
provide a much-needed boost for the local economy.
I am going to submit for the record, with unanimous
consent, the testimony and views of Judge Scott Cooper, one of
the central Oregon Crook County Commissioners, as well as the
Prineville Crook County Chamber of Commerce.
This is legislation that I worked to make part of the
Healthy Forests Restoration Act and it was originally included,
but at the last minute, it was dropped from the legislation,
although a companion research facility meant to address eastern
hardwood forests was retained.
The point of this legislation is to ensure that there is a
facility to carry out a major requirement of the Healthy
Forests Restoration Act to inventory and assess forest stands
on Federal forest land and with the consent of owners on
private forest land. The objectives of the assessment are to
evaluate forest health conditions now and in the future and to
consider the ecological impacts of insect, disease, invasive
species, fire- and weather-related events. The center will work
to make sure data is as accurate as possible in order to
improve forest management.
I am very pleased that the chair of the subcommittee has
returned. Senator Murkowski has joined us and as a result of
Senator Murkowski's very gracious staff, I have been allowed to
actually open this hearing.
Let me again express my thanks to you, Madam Chair, and
your staff for breaking with precedent. Over the years we have
always worked in a bipartisan kind of fashion, but you have
sort of set a new standard today by letting me begin. I am very
appreciative. I will return to the gavel to you.
STATEMENT OF HON. LISA MURKOWSKI, U.S. SENATOR
FROM ALASKA
Senator Murkowski. Thank you Senator Wyden. I am glad that
had an opportunity to put some of your comments on the record.
So most appreciated.
Well, good afternoon.
The subcommittee chairman of the Public Lands and Forests
Subcommittee, Senator Craig, is unable to join us this
afternoon. He has asked that I chair today's hearing, which I
am pleased to do.
We are expecting Senator Bingaman to join us this
afternoon. Senator Bingaman I understand and certainly myself
have some opening statements. I understand that you, Senator
Stevens, are on a bit of a tight schedule though and we would
like to accommodate that. We will take your testimony first and
if you need to leave after that, before we convene our
panelists, that is fine. We appreciate you joining us, and if
you would like to begin with your comments on the legislation
before us this afternoon.
STATEMENT OF HON. TED STEVENS, U.S. SENATOR
FROM ALASKA
Senator Stevens. Well, thank you very much, Madam Chairman.
I am pleased to be here today to voice my support for your
bill, S. 1466, the Alaska Land Acceleration Act.
In 1958, Congress enacted the Alaska Statehood Act. This
act granted the State over 103 million acres of land, an area
roughly equal in size to the State of California. These lands
were to serve as the basis for Alaska's economic and cultural
development. 45 years later, our State is still waiting for the
transfer of 15 million acres and for title to over 60 million
additional acres. Combined, the land we have not yet received
is equal to the acreage of the State of New Mexico.
In 1971, Congress also passed the Alaska Native Claims
Settlement Act, which we call ANCSA, which granted 44 million
acres to Alaska Natives. 32 years later, they too are still
awaiting the transfer of over 10 million acres and title to
millions of acres more. In addition, thousands of Alaska Native
allottees are awaiting final approval of their native
allotments.
The pace of the land conveyance program has had a chilling
effect on the development of our State, as you know.
One of the concerns prior to the passage of the Statehood
Act was whether or not Alaska would be able to support its
government and its communities across the great expanse of our
State. To address this concern, Congress included a land grant
in the act to provide the State with an economic base and it
actually accelerated, it was thought, the availability of land
to Alaska. Other States got sections 16 and 36 out of every
township. We had the right to select in contiguous blocks up to
103.5 million acres.
Now, because the conveyance process is not yet completed,
the promise of providing that economic base has not been
fulfilled. Not only has the slow pace of land conveyance taken
an economic toll on the State, it has taken a personal one as
well.
I remember well a constituent of ours, Tegliana Melilak,
who wrote to me in the early 1980's asking for my assistance in
her native allotment case. She had submitted an application for
a native allotment to BIA, which back then handled native
allotments. Tegliana was sick and she wanted to make sure that
the allotment was conveyed to her before she died. She wanted
to have a part of her heritage to pass along to her children.
I agreed to look into the situation and I requested that
BIA provide me with an estimate of how long it would take to
process that claim. BIA responded very matter of factly that
they should be able to process Tegliana's application in about
70 years. 70 years. Imagine how difficult it was to tell her
that the best the Federal Government could do was to promise
that some day they would get around to conveying the land to
her children or her grandchildren.
Obviously, I could not and did not accept that as the only
option, and that is why for years I have asked Congress to
increase the funding for land conveyance. The program has been
funded rather substantially.
But it became increasingly clear that simply increasing
funding for the program was not enough. Changes in the law will
also have to be made to ensure that the conveyance program is
completed in my lifetime. This bill will do that, I hope. It
will ensure that the timely settlement of Alaska's claims by
streamlining the process by which the land is conveyed. It
accelerates conveyances to the State of Alaska and the native
corporations, finalizes pending native allotments, and
completes the University of Alaska's remaining land
entitlement.
The people of our State have waited a long time, far too
long, for the Federal Government to transfer ownership of land
that rightly belongs to the State of Alaska and to Alaskans.
Resolving these claims by 2009 is vitally important for the
future of Alaska because it will enable Alaskans to efficiently
manage their lands and allow our citizens the opportunity for a
meaningful economic development.
This date is also important because it is the 50th
anniversary of our Statehood. Surely Congress and the Federal
Government will be able to see to it that they can finalize a
land grant enacted to give us an economic base almost 50 years
ago.
I want to thank you, Senator Murkowski, for taking the
initiative to find a way to see to it that the promise made to
our people in Alaska will be finally fulfilled, and I would
urge all Senators to favorably report this bill out of this
committee and help facilitate its passage.
We went to great lengths to set aside these lands. We had a
long battle for 7 years. The lands the Federal Government
wanted to reserve, ANILCA, the law that sets aside over 100
million acres of our land that cannot be available either to
the State or the natives. After that was done, I thought we
would get our lands. But it simply has not happened.
I do not want to see future generations of Alaskans suffer
as Tegliana did. A few years after she contacted my office, we
were successful in having her native allotment conveyed to her.
We did get a bill passed to do that. Unfortunately, she had
passed away and was not able to see her dream of passing land
over to her children fulfilled.
I think Alaskans have the right to this land and they have
the right to pass their heritage on to succeeding generations,
and I ask you to do everything you can--and I will join you--to
assure that the Alaska land conveyance will be a dream
fulfilled and not a dream continually deferred.
Thank you very much.
Senator Murkowski. Thank you, Senator Stevens. I certainly
appreciate your testimony and all that you have done over the
years to get us to the point where we are. We recognize that we
have got a long way to go, but we do know that we have made
progress, and for that, we thank you.
I will go ahead and make my opening statement today. I'd
like to give those that are here a little bit of a background
on what the committee has before it today. We will be hearing
testimony on four bills: S. 1421, which is the Alaska Native
Allotment Subdivision Act; S. 1466, the Alaska Land Transfer
Facilitation Act; S. 1649, the Ojito Wilderness Act in New
Mexico; and S. 1910, a bill to direct the Secretary of
Agriculture to carry out an inventory and management program
for forests on public domain.
I would like to welcome each of the witnesses who have
traveled here to Washington, D.C. I know that coming to
Washington this time of year is not exactly the choice trip to
make. I suppose the good news is you are here this week and not
last week so we can actually have this hearing.
I would like to welcome back to our committee, BLM Director
Kathleen Clarke. Welcome to you.
From Alaska, I would like to recognize deputy commissioner
Marty Rutherford with the Alaska Department of Natural
Resources in Anchorage; Mr. Edward Thomas, president of the
Central Council of the Tlingit and Haida Indian Tribes of
Alaska in Juneau; Mr. Jim Mery, senior vice president for Lands
and Natural Resources with Doyon, Limited in Fairbanks; Mr.
Russell Heath, executive director of the Southeast Alaska
Conservation Council in Juneau; and Mr. Jack Hession, Alaska
Representative for the Sierra Club.
I know that Senator Bingaman had hoped to be here to
introduce those of his constituents who are here from New
Mexico. Since he is not here, I would like to recognize
Governor Peter Pino, the Pueblo of Zia in New Mexico; and Mr.
Martin Heinrich of Albuquerque, New Mexico.
In addition to Kathleen Clarke, we have Henri Bisson, the
Alaska State Director of the BLM, and Linda Rundell, the New
Mexico State Director of the BLM. We welcome you all.
It gives me great satisfaction that on today's agenda we
have two very important Alaska bills. These bills address two
different but very pressing needs in Alaska, as Senator Stevens
articulated very well. We held a subcommittee field hearing in
Anchorage last August where we heard the first round of
testimony on this legislation. For S. 1466, the Alaska Land
Transfer Facilitation Act, this field hearing really did give
us a better understanding of a relatively complicated bill that
has led to much discussion across the State and a rework of the
original bill language. I think that there has been good
collaboration and considerable progress on improving this bill.
I know that a lot of people have worked very, very hard to
achieve some of the compromise and really the reworked
legislation. But there is more to be done and I do hope that we
will continue in this cooperative spirit.
Under the Statehood Act, Alaska was promised 104 million
acres of land and to date has 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, just 15 million acres. In 1906,
Congress passed the Alaska Native Allotment Act that provided
natives the opportunity to acquire an allotment of up to 160
acres and yet unprocessed applications still number in the
thousands. I think it is about 2,500.
It has been 45 years since Alaska's Statehood, 33 years
since the passage of ANCSA and the repeal of the Allotment Act,
and yet under current law procedures, we are at least 20 years
from seeing these conveyances complete.
Now, I circled that 20-year figure because I have heard
conflicting figures. At one testimony in Anchorage, I heard 85
years. In Ms. Rutherford's written comments before the hearing
today, I see a reference to 300 years before the State lands
can be transferred. Any way you cut it, it is far too long,
whether it is 20 years, 85 or, God forbid, 300.
It is past time that Congress take action to streamline the
process and build some flexibility into administrative
authority so we can get this job done before the end of the
decade. This bill would streamline administrative processes
that will expedite transfer of millions of acres of land to
Alaska Natives, the State of Alaska, and to native
corporations, and will bring finality to this decades-long
conveyance process.
The Federal Government has management jurisdiction of over
63 percent of the State. It is long past time to transfer these
public lands from Federal Government control to State and
private ownership.
Now, the second bill I would like to speak to is S. 1421,
the Alaska Native Allotment Subdivision Act. This act is the
only answer to resolving the question of whether native
landholders have the authority to subdivide their own property.
Individual Alaska Native landowners cannot subdivide their
land to transfer it either by gift or 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 this explicit statutory authority calls into question the
legal validity of lands that have been subdivided and lands
that likely could be subdivided in the future.
This legislation will provide the necessary authorization
to the Department of the Interior and native landowners to
dedicate their land for public purposes as they see fit. This
legislation is noncontroversial and is beneficial to all
affected parties and to the general public. The State of Alaska
and local governments have urged such legislation, and the
Department of the Interior is also supportive. I hope that we
will be able to move this bill quickly through the committee.
Senator Bingaman, you are right on time. I would now like
to give you an opportunity to make any opening remarks you
have. I have made a general introduction, but if you would like
to recognize those who have come all the way from New Mexico,
that would be appropriate.
STATEMENT OF HON. JEFF BINGAMAN, U.S. SENATOR
FROM NEW MEXICO
Senator Bingaman. Well, thank you very much, Madam
Chairwoman.
I am very pleased that you called this hearing, and I am
here particularly because of S. 1649, which is legislation that
I introduced to designate 11,000 acres of land administered by
the BLM as wilderness in our State. This is the first BLM
wilderness that we would have designated in over 15 years.
Although the issue of wilderness is usually contentious, at
least before I got to this hearing today, I had thought this
was a largely noncontroversial proposal. It has the strong
support of the State of New Mexico, the Governor, the county of
Sandoval, the county of Bernalillo. Senator Domenici is a co-
sponsor. Congressman Udall has introduced a companion measure
in the House of Representatives.
This Ojito Wilderness is currently a designated wilderness
study area, and the proposal follows recommendations made by
the BLM and by former President Bush when he was in office in
1991. The proposed wilderness is adjacent to the Zia Pueblo's
lands, and Governor Pino is here to represent the Zia's
perspective on this. They have been very supportive of trying
to move ahead with this, which I very much appreciate.
The other purpose of S. 1649 is to authorize the sale of
certain BLM lands to the Pueblo. The lands that would be
conveyed to the Pueblo have high religious and cultural
significance, and with assurances in the bill that the Pueblo
will allow continued public use of those lands, it had been my
belief--and it still is--that this conveyance would be
noncontroversial as well.
I was surprised to see the administration's testimony that
we have just received that the Interior Department apparently
wants to use this bill to develop an entire new policy on
tribal trust issues. Obviously, that is of concern to me. I am
not averse to relooking at tribal trust issues, but I do think
that this particular bill is one which has strong support and I
hope very much we can move ahead with it.
Two of the witnesses that are testifying this afternoon are
from New Mexico. I mentioned Governor Peter Pino from Zia
Pueblo. Also Martin Heinrich, who is a member of the
Albuquerque City Council, is here, and we appreciate his
presence and support very much.
Madam Chairwoman, I am unfortunately in a hearing with the
Secretary of the Treasury right down the hall and I need to try
to return there to ask him a few questions. I will try to get
back this afternoon. But I very much appreciate you having the
hearing, and to the extent I cannot ask my questions, I will
submit them. Thank you.
Senator Murkowski. You are very welcome. And, Senator,
right now we have the New Mexico panel that will come up after
Kathleen Clarke has spoken. If it would help you, we could
always send somebody down to let you know when they will be
coming up.
Senator Bingaman. I wish you would do that, and by then I
hope I will be free to come back. Thank you.
Senator Murkowski. Very good. We will give you notice then.
Thank you.
I would now like to invite our first witness. We will allow
each witness 5 minutes to summarize their testimony. Your
written and oral statements will be made a part of the official
record of the hearing and any supplemental material will need
to be submitted no later than 10 calendar days from today.
So, Director Clarke, if you would lead us off this
afternoon. Thank you and welcome to the committee.
STATEMENT OF KATHLEEN CLARKE, DIRECTOR, BUREAU OF LAND
MANAGEMENT, DEPARTMENT OF THE INTERIOR; ACCOMPANIED BY HENRI
BISSON, ALASKA STATE DIRECTOR, BLM; AND LINDA RUNDELL, NEW
MEXICO STATE DIRECTOR, BLM
Ms. Clarke. I really appreciate this opportunity, Senator
Murkowski. This is my first visit back to this committee room
since I was confirmed, so it is a pleasure to join you again. I
appreciate the fact it is to speak to some very important
legislation and welcome this opportunity.
I am here to present the views of the Department of the
Interior on S. 1466, the Alaska Land Transfer Acceleration Act;
S. 1421, the Alaska Native Allotment Subdivision Act; and S.
1649, the Ojito Wilderness Act.
I am grateful to be accompanied by two State Directors,
Henri Bisson from Alaska and Linda Rundell from New Mexico, who
have proven to be great leaders in their new assignments.
In the interest of time, I will summarize my written
remarks that have been submitted for the record.
The Department supports the intent of the two Alaska
measures and we have done so since the August field hearing on
the bills in Anchorage. We would like to continue to work with
the committee to make certain that amendments to clarify and
strengthen the bills are considered and look forward to that
opportunity.
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. The Alaska land transfer
laws include the Native Allotment Act of 1906; the Alaska
Native Claims Settlement Act, known as ANCSA; and the Alaska
Statehood Act. The BLM in Alaska has worked diligently for the
last 30 years to implement these interconnected and very
complex laws. However, the pace of land conveyances has been
slow and I would like to explain some of the reasons.
The three major land transfer laws have been amended,
superseded, reinterpreted by the judiciary many times,
requiring BLM to reassess, review, and re-sort land title
claims to make certain that its actions are appropriate to new
determinations made by the court. The BLM's adjudication and
survey of land title claims is complicated, both operationally
due to remote location and extreme weather in Alaska and
administratively due to complex case law and process required
for transferring lands from Federal ownership to other parties.
Alaska Natives, State officials, and the Alaska delegation
have all expressed concern about the pace of these land
transfers, and Henri and I have had numerous discussions about
the problems and the pace of this program.
The Department shares an interest in completing the Alaska
land transfers in an expeditious manner. In fact, the BLM has
extensively analyzed the land transfer program to identify ways
to streamline the process and expedite conveyances.
In 1999, working in partnership with its customers and
stakeholders, the BLM developed a plan that would result in the
completion of land transfer work by 2020. That still seems like
a long way out.
Responding to the 2003 congressional directive and in an
effort to further expedite conveyances, BLM officials met with
staff from the Alaska congressional delegation, native
entities, environmental groups, industry, the State, and other
Federal agencies to discuss ideas to get feedback on
improvement to the land transfer process.
S. 1466 was introduced as a legislative solution to resolve
many of the challenges that we face. This bill will expedite
adjudication and conveyance of Alaska land claims and the
Department of the Interior supports this bill.
S. 1421, meanwhile, would authorize the Alaska Native
owners of restricted allotments, subject to the approval of the
Secretary, to subdivide their lands in accordance with State
and local laws.
Enactment of S. 1421 would remove the obstacles to pending
lot sales and resales in subdivisions and the Department of the
Interior certainly supports the intent of this bill as well.
I regret that Senator Bingaman had to leave, but I will go
ahead and enter my brief comments relative to the Ojito bill.
The Department supports the designation of the entire
10,794 acres of Ojito WSA as wilderness. We would like the
opportunity to work with Senators Bingaman and Domenici, as
well as this committee's staff, to address both substantive and
technical issues within the wilderness section.
While the administration is very sensitive to the goals of
the Pueblo of Zia to consolidate its landholdings and to
protect sites of religious and cultural significance, there are
several issues that have arisen relative to the transfer of
BLM-managed lands into trust status for the Pueblo of Zia, and
these remain unresolved. We certainly are willing to work with
the Senators and the committee to see how we might address
those issues.
To be a little bit more specific, the Secretary's trust
responsibility that Senator Bingaman alluded to is a
responsibility to manage the land should be addressed with
clarity and precision. Much of the controversy that we have
faced in recent years at the Department of the Interior
regarding the Secretary's trust responsibility stems from the
failure to have clear guidance about the roles and
responsibilities of trustee and beneficiary. Congress should
decide these issues, not the courts.
Accordingly, we recommend that the committee amend the bill
to set forth the specific trust duties it wishes the United
States to assume with respect to the acquisition of these
lands.
While the legislation as introduced does not reference the
acres to be transferred, it is our understanding that the
Pueblo seeks to acquire approximately 11,500 acres of public
land. We are concerned that several of the bill's provisions
may be insufficient to protect the public interest. Although
section 5(a) of the bill makes the transfer subject to valid
existing rights, and section 5(f) addresses the rights-of-way,
the effect of these provisions to ensure continued access may
be limited.
The BLM is concerned about preserving access to and on six
roads crossing current BLM-managed lands. We believe the public
interest would be better served by amending the legislation to
grant the BLM a permanent easement for the corridors of land
underlying these roads.
But as I stated, we would look forward to working with the
sponsors of the legislation and the committee to address these
concerns and to explore ways that we can resolve them.
Finally, on behalf of the administration, I have submitted
for the record a copy of Forest Service testimony on S. 1910.
The Forest Service has asked that if there are questions
related to this bill, that they be submitted in writing.
[The prepared statement of the U.S. Forest Service
follows:]
Statement of the Forest Service, Department of Agriculture
Mr. Chairman and Members of the Committee, thank you for the
opportunity to present the Department of Agriculture's views on S.
1910, a bill to direct the Secretary of Agriculture to carry out an
inventory and management program for forests derived from public domain
land with the purpose of providing long-term solutions to forest health
issues. The Department of Agriculture supports S. 1910.
On December 3, 2003, President Bush signed into law the Healthy
Forests Restoration Act (HFRA) of 2003 to reduce the threat of
destructive wildfires while upholding environmental standards and
encouraging early public input during review and planning processes.
The legislation is based on sound science and helps further the
President's Healthy Forests Initiative pledge to care for America's
forests and rangelands, reduce the risk of catastrophic fire to
communities, help save the lives of firefighters and citizens, and
protect threatened and endangered species. The HFRA also authorizes a
forest stand inventory and monitoring program to improve detection for
and response to environmental threats on National Forest lands other
than those NFS lands reserved from the public domain and private lands
with the owners' consent.
S. 1910, as introduced, would complement the Healthy Forest
Restoration Act by authorizing an inventory and management program on
National Forest lands reserved from the public domain with an emphasis
on forest stands in the Western United States. The bill would amend the
Cooperative Forestry Assistance Act of 1978 to direct the Secretary of
Agriculture to use geospatial and information management technologies
to inventory, monitor, and identify National Forest System and private
(with landowner consent) forest stands through the application of
remote sensing technology of the National Aeronautics and Space
Administration (NASA) and the United States Geological Survey; emerging
geospatial capabilities in research activities; field verification to
validate techniques; and integrating the results into pilot operational
systems.
Under the provisions of the S. 1910, the Secretary would address:
(1) environmental threats (including insect, disease, invasive species,
fire, acid deposition, and weather-related risks and other episodic
events); (2) forest degradation, and preventive management practices;
(3) quantification of carbon uptake rates; and (4) characterization of
vegetation types, density, fire regimes, and post-fire effects. The
bill would require the Secretary to develop a comprehensive early
warning system for potential catastrophic environmental forest threats.
The Secretary would also designate and maintain a facility in the
Ochoco National Forest headquarters in Prineville, Oregon, to address
these issues.
S. 1910 is important because it recognizes the critical need to
help identify priorities and monitor progress as implementation of the
National Fire Plan, the President's Healthy Forests Initiative and the
Healthy Forest Restoration Act proceeds. Current condition class and
fire regime maps require updating, and by using remote sensing the
Forest Service can track changes in condition class over time as
vegetation changes and projects are implemented on the ground.
Opportunities exist to work with NASA, other agencies and the
commercial sector to use state-of-the-art technologies in earth
observations, from aircraft and spacecraft, and output from predictive
models to improve the timeliness and accuracy of forest and rangeland
inventories, monitor changes over time, and detect insect and disease
infestations.
Several existing Forest Service programs are well positioned to
help address the issues identified in the proposed legislation.
The Forest Service participates in national and international
monitoring efforts for disturbances, forest health, and sustainability.
Forest Health Monitoring (FHM) is a national program designed to
determine the status, changes, and trends in indicators of forest
condition on an annual basis. The FHM program uses data from ground
plots and surveys, aerial surveys, and other biotic and abiotic data
sources and develops analytical approaches to address forest health
issues that affect the sustainability of forest ecosystems.
Forest Inventory and Analysis (FIA) is the Nation's forest census.
The Forest Inventory and Analysis program collects data and reports
annually on strategic-scale status and trends in the Nation's forests,
including data on forest threats, degradation, and vegetation
characterization. These reports cover status and trends in forest area
and location; species, size, and health of trees; total tree growth,
mortality, and removals by harvest; wood production and utilization
rates by various products; and forest land ownership. The FIA program
includes information relating to tree crown condition, lichen community
composition, soils, ozone indicator plants, complete vegetative
diversity, and coarse woody debris. In addition to strategic-scale
analysis, National Forest land managers are highly interested in
monitoring forests at the stand level. Active stand-level inventory
programs are underway in several regions and could be applied in the
forests of eastern Oregon.
A part of the President's Climate Change Science program involves
interagency activity focused on integrating land-based and remote
sensing inventories of carbon. This integration is done through
partnerships at a variety of work units across the United States to
cover all forest ecosystems. Forest Service Research and Development
produces the national forest carbon inventory, through a multi-
disciplinary national team, and includes quantification of carbon
uptake. Other research activities develop carbon uptake estimates,
carbon management systems, and management practices that protect and
enhance forest health and productivity.
The agency also participates in developing detection, monitoring
and mitigation systems for invasive species at various scales. The
Forest Health Protection program of the Forest Service works closely
with other Federal and State partners to detect and eradicate new
invasions of invasive forest insects and pathogens, such as the Asian
longhorned beetle, emerald ash borer, and sudden oak death, with the
aim of reducing future impacts to urban and forest environments.
The proposed inventory program in S. 1910, especially integrated
with the existing inventory and monitoring activities of the Forest
Service and our state partners, would complement those programs in
important ways. Specifically, increasing emphasis on stand-level
monitoring will be of great interest to land managers and others
involved in planning and implementing specific forest management
projects on the ground. Linking these programs would support an
effective early warning system that will enable land managers to
isolate and treat a threat before the threat gets out of control; and
prevent epidemics that could be environmentally and economically
devastating to forests.
The Central Oregon location presents opportunities to pilot
technologies due to the diverse forest types ranging from wet Douglas
fir and mountain hemlock at the crest of the Cascades to dry juniper
and sagebrush at the lower elevations, and the various forest types in-
between. Forests across central Oregon are representative of most of
the coniferous forests across the west. Insects and diseases present
include Mountain Pine Beetle, spruce budworm, various root rots, and
mistletoe. An Inventory Center on the Ochoco National Forest would
provide an opportunity to integrate and synthesize important forest
health and fuels information from Forest Service Research and
Development, State and Private Forestry and National Forest Systems.
We would like to work with the committee on the exact location of
the center within the Prineville community. We believe there may be
sites other than the headquarters building which would serve the
purposes of the bill.
We look forward to working with the committee and others interested
in addressing healthy forest ecosystems. This concludes my testimony. I
would be happy to answer any questions that you may have.
Ms. Clarke. The administration and the Department of the
Interior certainly look forward to working with this committee
and with the sponsors and the interested parties in resolving
issues that are outstanding.
If you have any questions, I would be happy to take them or
pass them on to one of the State Directors who are here with
me.
[The prepared statements of Ms. Clarke follow:]
Prepared Statement of Kathleen Burton Clarke, Director, Bureau of Land
Management, Department of the Interior, on S. 1649
Thank you for the opportunity to testify on S. 1649, the Ojito
Wilderness Act. This legislation would designate as wilderness the
nearly 11,000 acre Ojito Wilderness Study Area (WSA). The bill also
proposes to transfer certain public lands managed by the Bureau of Land
Management (BLM) to trust status for the Pueblo of Zia (Pueblo) to
become part of the Pueblo's Reservation. The administration supports
the designation of the Ojito wilderness. However, we do have some
significant concerns with the legislation as drafted. Several issues
related to the proposed transfer of these BLM-managed lands into trust
status remain unresolved and should be considered by Congress if it
chooses to move forward with this legislation. We would like the
opportunity to work with the Committee to resolve these issues.
OJITO WILDERNESS DESIGNATION
Forty miles northwest of Albuquerque, New Mexico, the Ojito WSA
provides a respite from the city and offers a world of steep canyons,
multi-colored rock formations and sculptured badlands. Rugged terrain
and geologic anomalies attract an array of visitors. This area is home
to a diverse community of plant and animal populations including mule
deer, a small band of antelope, feline predators, and a wide range of
raptors who nest in the steep cliffs.
The Ojito WSA contains extensive cultural resources. Both Archaic
sites and several prehistoric sites are scattered throughout the WSA.
More than 7,000 years ago Archaic hunters and gatherers inhabited the
badlands of the Ojito. Archaeologists are just beginning to decipher
the clues to their lives. Around 1200 A.D., the prehistoric Puebloan
people moved to this area. Excavation of multi-roomed pueblos in this
area has expanded our knowledge of these people and their agricultural
lifestyle. Additionally, pre-19th century evidence of Spanish and
Navajo use is apparent in areas of the WSA.
Scientific excavations of important dinosaur fossils can and have
been conducted in ways that protect both the important specimens and
the wilderness values of the area. The secrets of this ancient past are
just beginning to be unearthed within the Ojito.
S. 1649 would designate the entire 10,794 acres of the WSA as
wilderness. In a report issued in September 1991, the BLM's New Mexico
State Office recommended the entire WSA for wilderness. That
recommendation was subsequently sent to Congress by President George
H.W. Bush in May of 1992.
We support this wilderness designation. We would like the
opportunity to work with Senators Bingaman and Domenici, as well as
Committee staff, to address both substantive and technical issues
within the wilderness section. For example, the Department strongly
recommends that the legislation be amended to clarify that the
wilderness designation not constitute or be construed to constitute
either an express or implied reservation of any water rights.
Additionally, we would request changes to make the legislation
consistent with other wilderness laws, such as the complete withdrawal
of the land from the mining, and mineral leasing laws. Finally, we
would like to complete work on a single map to be referenced in the
legislation that accurately represents both the designated wilderness
and the lands proposed to be transferred to the Pueblo as described
below.
TRANSFER OF PUBLIC LAND TO PUEBLO OF ZIA
As with previous Zia Pueblo transfer legislation enacted in 1978
(P.L. 95-499) and 1986 (P.L. 99-600), S. 1649 arises from a desire by
the Pueblo to protect religious and cultural sites in the area and to
consolidate its land holdings. S. 1649 proposes to transfer certain
lands currently managed by the BLM into trust status. The lands
proposed to be transferred to trust status in S. 1649 contain numerous
sites of religious and cultural significance to the Pueblo and other
nearby Pueblos. The transfer would increase the ability of the Pueblo
to protect the abundant religious, cultural, and archaeological
resources in the area, but raises questions about the nature and extent
of the Secretary's trust responsibilities.
Over the past several years, the Department has devoted a great
deal of time to trust reform discussions. The nature of the trust
relationship is now often the subject of litigation. Both the Executive
Branch and the Judicial Branch are faced with the question of what
exactly does Congress intend when it puts land into trust status. What
specific duties are required of the Secretary, administering the trust
on behalf of the United States, with respect to trust lands? Tribes and
individual Indians frequently assert that the duty is the same as that
required of a private trustee. Yet, under a private trust, the trustee
and the beneficiary have a legal relationship that is defined by
private trust default principles and a trust instrument that defines
the scope of the trust responsibility. Congress, when it establishes a
trust relationship, should provide the guideposts for defining what
that relationship means.
Much of the current controversy over trust stems from the failure
to have clear guidance as to the parameters, roles and responsibilities
of the trustee and the beneficiary. As Trustee, the Secretary may face
a variety of issues, including land use and zoning issues. Accordingly,
the Secretary's trust responsibility to manage the land should be
addressed with clarity and precision. Congress should decide these
issues, not the courts. Therefore, we recommend the Committee set forth
in the bill the specific trust duties it wishes the United States to
assume with respect to the acquisition of these lands for the Pueblo.
Alternatively, the Committee should require a trust instrument before
any land is taken into trust. This trust instrument would ideally be
contained in regulations drafted after consultation with the Tribe and
the local community, consistent with parameters set forth by Congress
in this legislation. The benefits of either approach are that it would
clearly establish the beneficiary's expectations, clearly define the
roles and responsibilities of each party, and establish how certain
services are provided to tribal members.
While the legislation as introduced does not reference a map of the
acres to be transferred, it is our understanding that the Pueblo seeks
to acquire approximately 11,514 acres of public land located west of,
and contiguous to, the main body of the Pueblo's current reservation.
These lands would provide a connecting corridor with a second block of
Zia Pueblo lands to the northwest of the main body of the reservation.
Through previous acquisitions of public land in 1978 and 1986, as well
as the recent purchase of private lands, the Pueblo now has control
over 200 square miles of land.
S. 1649 would allow the Pueblo to acquire all right, title and
interest (including mineral rights) to additional public land located
adjacent to the reservation and the Ojito Wilderness study area. Under
the bill, the transfer would be subject to valid existing rights and
the continuing right of the public to access the land for recreational,
scientific, educational, paleontological, and conservation uses,
subject to regulations adopted by the Pueblo and approved by the
Secretary of the Interior. The use of motorized vehicles off of
approved roads, mineral extraction, housing, gaming, and other
commercial enterprises would be prohibited, and the Pueblo would be
required to pay the Secretary fair market value for the lands.
We respect the efforts of the Pueblo to protect its religious and
cultural sites in the area and to consolidate its reservation lands.
However, we are concerned that several of the bill's provisions may be
insufficient to protect the public interest. Currently, for example,
public access to both the WSA and the two Areas of Critical
Environmental Concern (ACECs) which overlap the area is across BLM-
managed public lands that we believe are intended for transfer to trust
status under the bill. Section 5(d) of the legislation, as noted
earlier, makes the transfer subject to the continuing right of the
public to access the land under regulations to be adopted by the Pueblo
and approved by the Secretary. In practice, however, public access
across those lands after their transfer into trust status, and
continued use of the area by the public, may be inconsistent with
Pueblo's interest in protecting the religious, cultural, and
archaeological resources on the lands.
The only remedy S. 1649 offers to persons denied access to these
areas is a right to sue the Pueblo in Federal Court. It seems
inappropriate that day visitors seeking access to the Ojito wilderness
area for recreational or scientific purposes would have no relief from
restricted access save litigation.
Although Section 5(a) of the bill makes the transfer subject to
valid existing rights and Sec. 5(f) addresses rights-of-way, the effect
of these provisions to ensure continued access may be limited. The BLM
is concerned about preserving access to and on six roads crossing
current BLM-managed lands. Specifically, Cabezon Road (County Road
906), Pipeline Road (County Road 923), Gas Company Road, Marquez Wash
Road, Chucho Arroyo Road, and Querercia Arroyo Road are roads currently
used by the public to access BLM lands, but will be wholly or partially
on trust lands following the proposed transfer. Although these roads
are in public use, they do not have rights of way. We believe the
public interest would be better served by amending the legislation to
grant the BLM a permanent easement of adequate specified width for each
of the corridors of land underlying these roads. Where these roads lie
on or near the outskirts of the proposed Ojito Wilderness it may make
sense simply to maintain BLM ownership of the lands from the wilderness
to the far edge of the road corridor.
We would like to work with the sponsors of the legislation and the
Committee to address these concerns.
Thank you for the opportunity to testify on S. 1649. I would be
pleased to answer any questions.
Prepared Statement of Kathleen Burton Clarke, Director, Bureau of Land
Management, Department of the Interior, on S. 1466 and S. 1421
Mr. Chairman and Members of the Committee, I am Kathleen Clarke,
Director of the Bureau of Land Management, Department of the Interior.
I appreciate the opportunity to appear before you today to present the
Department's views on S. 1466, the Alaska Land Transfer Acceleration
Act of 2003 and S. 1421, the Alaska Native Allotment Subdivision Act.
The Department supports the intent of both 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 established by
these statutes and 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. Delays in the completion of
these transfers have resulted.
In the Fall of 2002, Secretary Norton and I, 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 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.
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.
``ALLOTMENTS'' BACKGROUND--NATIVE ALLOTMENT ACT OF 1906/ALASKA NATIVE
VETERANS ALLOTMENT ACT OF 1998
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 993 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 2,769 parcels--including 2,191 parcels filed under the 1906
Act and 578 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 2,769 parcels, approximately 1,016 parcels are on lands no
longer owned by the United States. On these 1,016 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 nearly 43 million acres. Final adjudication and title transfer
have taken place on an additional 47 million acres, but final survey
and patent work remains to be completed on this acreage. The remaining
15 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 8.4 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 parties.
The vast majority of the 2,769 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 2,769 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 2,769 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. 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 may 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.
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.
Since the time of the August field hearing, we have been part of
the continuing dialogue regarding this bill. For example, we have heard
from representatives of the Native Allotment Community that they have
concerns about establishing appropriate deadlines that are fair to
allotment applicants yet, at the same time, still allow for achievement
of final land transfers by 2009. As I noted at the beginning of my
statement, we want to work with the Committee to address these and
other technical changes in order to strengthen and clarify this
important piece of legislation.
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
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.
CONCLUSION
In closing, I would like to thank the Committee for its continuing
commitment to address these complex issues, and reiterate the
Department's support for the intent of these bills. If enacted with
certain technical changes, S. 1466 will go a long way in expediting
land transfers and promoting the proper management of all lands and
resources in Alaska, and S. 1421 will allow Native Alaskans to
subdivide their restricted allotment lands with the approval of the
Secretary. We look forward to working with the Committee on technical
amendments to both of these bills. I will be happy to answer any
questions you may have.
Senator Murkowski. Thank you. I appreciate your comments
this afternoon.
When we were moving forward initially with this
legislation, the question has to be asked, why do we have to
have legislation in order to complete the conveyances of land
that was promised close to 50 years ago? Your agency, BLM--this
is what you are charged to do. Why do we need to have the
legislation in order to finalize the entitlements?
Ms. Clarke. I believe it is because the several different
laws that direct us to resolve these land patterns were never
properly merged, and so we find ourselves with some
conflicting, competing directions, and we lack the authority to
resolve those ourselves.
In some of them, we lack deadlines. There has to be a time
certain in which you say, case closed, it is time to move on.
Yet, in some of these instances, we have allowed for people to
come in and make selections and then change their mind and
resubmit. So we are in a continual process of readjusting some
of those requests. We have a very difficult time bringing
things to closure.
Also, the land transfers are sequenced. Until we settle
this set of land transfers, we cannot address this set and the
next set.
What this law would do is it would close some of those
loopholes, set some secure deadlines, and expand some of our
authority so that we can merge these bills in a positive
framework that allows us to bring some expedited attention to
this challenge.
I think the people of Alaska deserve nothing less. As you
said, it has been way too long. Other States were granted that
land at Statehood and had it from that moment forward. Alaska
is still waiting to have this. Native Alaskans are waiting to
have land granted to them, and it is clear under the existing
authorities and deadlines and processes we are not going to get
there. We certainly hope that we can get these new tools in our
tool box so that we can serve the Alaskan people better and
help them secure what they are entitled to.
Senator Murkowski. You have mentioned the deadlines.
Obviously, we are looking to a deadline or a goal of conveyance
by the year 2009. One of the concerns that has been raised
about this legislation is that, well, if you cut things off, if
do apply deadlines, if you do say, okay, time is up, that
certain due process rights might be abbreviated or perhaps
pulled. And there is a concern that we make sure that we still
allow for the due process for all those involved. Can you speak
to that aspect of it and give the assurance to those people who
have the concern in this specific area?
Ms. Clarke. I think there is a section in this law that
would secure for 10 native corporations an already set
percentage share of their final allocations that has raised due
process concerns. Congress, if this law passes, would thereby
establish the final acreage to be established and it would be
done.
Again, I think if we do not have this legislation, there is
no way we can get to a timely resolution of the entitlements.
Native corporations, for example, would be forced to seek
legislative relief or just wait until there was final
resolution of what we call the 14(h) claims, and this includes
cemetery claims, historical sites, and a whole other slew of
opportunities for claims. Like I said, it is the sequencing. We
could not even get to them. So this gives us some authority to
move forward.
Henri may have a little better insight into some of the
issues relative to process and public involvement and how we
would address that.
Senator Murkowski. Mr. Bisson.
Mr. Bisson. Yes. Senator, the legislation does not breach
people's rights to challenge our decisions relative to the
allotments and the selections of land and so on. People will
still be able to appeal decisions. There is a provision in the
legislation for an appeal function to be focused in Alaska to
expedite the processes, and we will still go through a public
notification process. I don't see this as abridging people's
rights to protect their interests and to challenge decisions
that they feel are inequitable.
Senator Murkowski. There has also been a fair amount of
concern I guess or perhaps the concern arises from not knowing
what would happen, what will happen when we convey the last
remaining entitlement of land to the Kaktovik Village
Corporation, which as we all know, happens to be located on the
coastal plain. But the only way that Kaktovik can receive its
final entitlement is through this legislation.
The question would be how many acres would they receive?
Where is it in relation to the existing land? And a question
that I was able to ask one of your fine employees yesterday of
25 years I learned, Linda Ressiguies, does this in fact allow
Kaktovik to proceed with oil and gas exploration if the
conveyance were to be final?
Ms. Clarke. My understanding is that they are entitled to
an additional 2,000 acres. The land that would be conveyed to
them is adjacent to their existing holding, and all of the
restrictions on oil and gas development in that area continue
to prevail. There is nothing in this legislation which undoes
the current restrictions. So I don't think that is a valid
concern.
I understand that the 2,000 is almost a technical
correction because of redefinition of what they were entitled
to.
Do you want to elaborate on that?
Mr. Bisson. If I could, Senator [referring to a map on
display.].
Senator Murkowski. I cannot tell what any of the pink
squares mean.
Mr. Bisson. If you can separate green from pink.
Senator Murkowski. Okay.
Mr. Bisson. The green areas on that map are in fact the
2,000 acres that this legislation would permit to be conveyed
to the Village of Kaktovik. The Federal Government promised
them 92,000 acres. This is the last 2,000 acres to be conveyed
to them. It cannot be conveyed without this legislation. You
can see that one of the parcels is actually adjacent on three
sides to existing Kaktovik lands, private lands that they own.
The other parcel is adjacent to those lands on two sides. So
this is not a widely dispersed entitlement that they have asked
for. It is logical and it is adjacent to lands they already
have.
This conveyance does not change the existing provisions
that prevent any drilling, oil and gas leasing or exploration
from occurring in ANWR. That can only be dealt with through
separate action by Congress. So this has absolutely no impact
whatsoever on that issue of oil and gas leasing in ANWR, in the
1002 area specifically.
Senator Murkowski. Thank you for that clarification.
The point has been made not only by Senator Stevens and
myself, but you, Ms. Clarke, about the pieces of legislation
over the years that have really complicated this land
conveyance process, and now through the legislation that I have
introduced, we have yet one more piece of conveyance
legislation. How can we be assured that this one is actually
going to help us with the conveyance instead of just adding one
more layer of complication?
Ms. Clarke. Thankfully, we do have those employees who have
been working with those other pieces of legislation for 25
years, and I think they have really helped us identify where
the fragmentation is between the laws, where we need to build
bridges between one law and another, and to identify what we
need. I have reviewed it with them. I know State Director
Bisson has. We have covered these with you, and I am very
confident that what we are really doing is, like I say,
creating the mechanisms to make these bills compliment one
another and serve the people of Alaska rather than confuse and
confound them in the process.
So I feel very good about it. We would welcome other ideas
or feedback from any interested parties, from the committee,
but I feel like we are finally resolving the morass and
creating an opportunity to make all of those work for the
citizens of Alaska.
Senator Murkowski. Just a couple quick questions about the
allotment legislation. Again, is the legislation necessary if
under existing Federal law, allotment owners can already convey
their private access easements to natives or non-native
grantees or portions of their allotments, assuring the legal
access? Why do we need to go one step further with our
legislation?
Mr. Bisson.
Mr. Bisson. Director Clarke has asked me to respond.
The current authorities for subdividing and conveying of
native allotments are inefficient and ill-suited to the job
that needs to be done in Alaska. Allotment owners can convey
these interests with appropriate secretarial approval, but
local authorities are reluctant to apply for and accept grants
for rights-of-way and so on because of potential liability.
What they need is the ability to create plats, to subdivide
their lands under State and county laws so that subsequent
owners of the land will have legal title and the counties and
local jurisdictions will have ownership of the roads that end
up being constructed.
Title, even if it is passed on from an allottee to
successors, is not easily conveyed because the State property
is not a State-recognized subdivided parcel. This is private
land. All that I think the legislation does is give the native
allottee the option of either retaining the protections offered
by the Secretary or subdividing it under State law and passing
title on.
Senator Murkowski. So the allotment owner could not simply
have his land removed from the restricted status and then
comply with the State or local law then?
Mr. Bisson. It is their option.
Senator Murkowski. They could not?
Mr. Bisson. No. They cannot comply with State and borough
laws under the existing authorities and still retain the lands'
restricted status.
Senator Murkowski. Senator Bingaman, did you have any
questions that you wanted to present to the first panel?
Senator Bingaman. Yes. Maybe I could ask Director Clarke
about this testimony that she has given here about the Ojito
Wilderness bill.
Your testimony seems to suggest that you believe we should
do a major review and revision of the laws governing the
Federal Government's trust responsibility to Indian tribes. Is
that an accurate paraphrase of what you are saying here?
Ms. Clarke. Senator Bingaman, I will have to tell that in
regards to the concerns about trust responsibility that have
been raised by the Department, we have really deferred to their
judgment. I think you are very aware that the Secretary has
found herself with many challenges relative to trust
responsibilities, to how they are interpreted, to what
appropriate roles and responsibilities are, and those are being
litigated. And it has been a very, very challenging exercise.
I think the concern is not that we use this bill to create
an entire protocol for everything but that within the context
of this bill that we identify what appropriate trust
responsibilities should be.
We would certainly be willing to work through this with the
committee and see if we cannot find some common ground here. I
think this is a reflection of the great concern and care that
the Department is feeling compelled to apply to any issues
relative to trust management.
I want to apologize that the content of this statement was
a surprise to you today and regret that we did not have an
opportunity to really explore this. Like I say, I also want to
reaffirm a commitment to see if we cannot come to terms. I do
not think it is essential that this become a template for a
solution to the overall trust problem, but in this instance
that we have some clarity and precision in the way we approach
this.
Senator Bingaman. Just to give you my own perspective on
it, I do think that always before when there has been a bill
here in the committee to transfer land into trust status, the
committee has assumed that the large body of law that has been
built up over many decades which defines what those
responsibilities are on both sides would govern that. We have
not gone through with regard to each parcel of land and said
here is what we mean by the Secretary's trust responsibility as
to this piece of land and then next week we will do it
differently as to another piece of land. And I would hate to
see us start down that road.
In the first place, I do not think that the Committee on
Indian Affairs would allow us to. If there is going to be a
rewrite of the trust responsibility law, the Committee on
Indian Affairs is understandably going to want to be the main
place where that happens. I would hate to see us trying to do
that on a sort of ad hoc basis with each piece of legislation.
Ms. Clarke. I would agree with your concerns that we want
to be consistent in our application of the trust responsibility
concept. Again, I think that what we are saying here is a
reflection of some super-sensitivity to this entire issue
because of the challenges the Secretary has faced.
I would love to have an opportunity to work with your staff
and yourself to see if we cannot find a way to bridge the gap
that we have identified here. I think there are players at the
Department of the Interior in our trust area that probably
would need to be engaged that I do not know have been.
And so I think this testimony is a reflection of a sense
that we have not fully covered our bases to come to a position
today where we can say we fully support this bill. I think we
have concerns. My testimony does not say they are not concerns
that we cannot address or certainly that we are not willing to
try to address. I think it is important that we take a look at
what is here and see what we can do to make it work.
Senator Bingaman. Thank you very much.
Senator Murkowski. Thank you. I appreciate your testimony,
Director Clarke, Mr. Bisson, Ms. Rundell.
Let us go to the second panel and welcome up Governor Peter
Pino and Mr. Martin Heinrich. Governor, Mr. Heinrich, welcome
to the committee. Governor, if you would like to begin with
your testimony please.
STATEMENT OF PETER M. PINO, GOVERNOR,
PUEBLO OF ZIA, ZIA PUEBLO, NM
Governor Pino. Thank you, Madam Chair, Senator Bingaman. I
bring greetings from the Pueblo of Zia. I am the current
Governor of the Pueblo. I have been the tribal administrator
since 1977. I also hold one of the Pueblo's traditional
spiritual positions. Before I talk to the bill, S. 1649, I
would like to address the spirits in this chamber in my native
language. Please bear with me.
[Native language spoken.]
Governor Pino. Madam Chair, thank you for allowing me to
speak in my first language. We truly believe that there is a
physical world and there is a spiritual world and we need to
communicate in both spheres. That is what you have allowed me
to do and I really do appreciate that.
Before I specifically talk about the support of S. 1649, I
would like to give you a little bit of background of who we are
as the pueblo people and who we are as Pueblo of Zia tribal
members.
Essentially we migrated through the Four Corners area, Mesa
Verde, Chaco Canyon, Aztec, as our people went down into the
current Pueblo of Zia area. They settled different settlements
in this migration route and this migration route is told and
retold every year to the members of the tribal council of Zia
on December 29. At the conclusion of that migration story, the
cacique appoint new officers for the coming year, thereby
representing the future of the pueblo. So we have the present,
the past, and the future all congregated in the same setting.
Since then I have been the Governor for the pueblo.
In settling in that region, this migration story tells
about different areas that our forefathers settled in. There
are numerous pit houses in and around the present pueblo. There
are five different villages that were occupied by the Zia
people when the Spaniards first came into this region in 1540.
One of the areas that were occupied by the Zia people the
Spaniards named the Valley of Cornfields because that is what
they saw. This would be around 1540. This Valley of Cornfields
is on the eastern edge of this area that we are talking about
here that would be transferred and put in trust for the Pueblo
of Zia.
We have numerous sites throughout the area. We have
retained our language. We have retained our cultural identity.
Through the bouts with disease and other problems 100 years
ago, Zia Pueblo numbered 97, 97 tribal members from about
15,000 when the Spaniards first came into this region. Today we
number 800 people of whom most of us reside at the Pueblo of
Zia. We are not a gaming tribe. We have limited financial
resources. We still have our tradition and culture. We
encourage self-sufficiency and subsistence activities. We as a
people still hunt, gather, cultivate food crops and raise
livestock just as we have for centuries. However, these
activities, given the desert environment that we find ourselves
in, we are in constant need, as our population grows, of a
bigger land base.
We have a program that does not allow any one tribal member
to exploit the resources at the Pueblo. As an example, the
grazing lands are divided into grazing units and no one
individual family head of household is allowed to graze more
than 20 head of cattle. We know that nobody can make a living
with 20 head of cattle, but this promotes community involvement
where we work the cattle, where we brand cattle. We have
grandkids all the way to grandparents working those cattle. It
gives us a sense of community. It gives us a sense of extended
family because that is who we are.
As our population has grown, we need additional property.
So in the recent past, we purchased private lands, purchased
the grazing rights on BLM property so that we would make
contiguous two separate pieces of tribal property. This has
been ongoing for decades. I have been involved with this since
I started working for the tribe in 1977.
The connection of the two pieces of property is essentially
to the well-management of the lands that we have under our
responsibility of managing. So we have been working on this for
many years.
In this area, the non-Indians are aware that there is a lot
of archeological resources. Those archeological resources were
put there by our forefathers. Who best can provide protection
for those resources but the descendants of those people?
We have natural materials used by our people that still
make pottery. We have mineral paint that we use for body paint
so that we can dance and participate in cultural activities. We
have many shrines, sacred sites. This land is dear to all of us
as tribal members.
We have tried not to displace anybody. As indicated
earlier, we purchased private property. We purchased grazing
rights to some of the BLM property. We do not want to displace
anybody or we do not want anybody to be adversely impacted by
the efforts that we have put forward as a pueblo.
Originally, we had asked for 24,000-plus acres of BLM lands
to be placed in trust for the Pueblo of Zia. Since then, we
have decreased the land area that we are hoping would be passed
through legislation and be put in trust for Zia. We have agreed
to exclude from our transfer request the Ojito Wilderness Study
Area. We have also agreed to exclude the area of critical
environmental concern that has been designated by the Bureau of
Land Management.
In addition to this major concession, we have also agreed
to provide continued access for the public to the lands that
would be transferred to Zia. We commit to preserve the land in
its natural beauty and open state, and we have agreed to pay
BLM for these lands that are aboriginal tribal property. That
was a hard decision to make. After all, this was aboriginal
tribal property. We have limited financial resources, but the
council feels that this is an area that is sacred to the past,
to the present, and will be sacred in the future.
We had thought that we finally came up with a legislative
proposal that would be both supported by the pueblo and BLM.
Senator Murkowski. Governor Pino, I am going to have to ask
you to wrap up. We have just been notified that we have a vote
coming up, and I would like to get this panel completed before
we do that.
Governor Pino. Okay. I will go ahead and summarize.
Senator Murkowski. Yes, because we will have your full and
complete written testimony included in the record.
Governor Pino. Okay. I hope you can appreciate how long and
difficult the efforts leading to the introduction of this
legislation have been for us. We have attempted to address many
interests, many issues, many concerns raised by the proposed
transfer of land and to ensure that no one's property interest
is adversely affected. We have spent millions to essentially
have impact and be around the Ojito area once again as our
forefathers have done. We have the support of the State of New
Mexico. We have the support of tribal governments, local
governments, conservation and user groups, neighboring
ranchers, businesses, and tourist groups and others. We are
very proud of the widespread bipartisan support that we have on
this bill.
In closing, I want to express special thanks to Senators
Domenici and Bingaman for jointly introducing S. 1649 and to
all that have expressed support for it.
I also want to express our appreciation to our BLM State
Director Linda Rundell and her staff for sitting down and
working with us on this legislation. We look forward to
continuing to work with them on the implementation of this
legislation.
With that, I want to thank the subcommittee for the
opportunity to testify on this important bill, and I am happy
to entertain any questions that the committee members may have.
[The prepared statement of Governor Pino follows:]
Prepared Statement of Peter M. Pino, Governor, Pueblo of Zia,
Zia Pueblo, NM
Good afternoon. I am Peter Pino, the current Governor of the Pueblo
of Zia and the tribal administrator since 1977. I am also one of the
Pueblo's traditional spiritual leaders. Before talking about Senate
Bill 1649 I would like to give you some very brief background on the
Pueblo of Zia.
We are a very traditional tribe--one that has retained its language
and cultural identity despite the fact that just 100 years ago we were
down to only 97 members, and the fact that today Albuquerque and its
suburbs are less than 30 minutes away. Today we have about 800 members,
virtually all of whom live on our Reservation. Though we are a non-
gaming tribe with limited financial resources, we have prospered as a
tribe and as a people because of our strong culture and traditions. We
strongly encourage self-sufficiency and subsistence activities. Most of
us still hunt, gather, cultivate food crops, and raise livestock, just
as we have for centuries. However, these activities, given the desert
environment in which we live, require a substantial land area and
conservation-minded management of our animal, plant, water and mineral
resources. We also have taken unique steps to ensure that all of our
tribal members have an equal opportunity to utilize these resources,
and that no one exploits them. For example, our grazing lands are
divided into range units based on their carrying capacity. These
individual range units are shared by several families who are permitted
to graze up to 20 heads of cattle each.
This limitation means that while no one can make a living off of
their cattle alone, all have an opportunity to raise livestock for
subsistence and additional income. It also reinforces the close
connection that our members have to the land and encourages our
families to work closely and cooperatively together in managing our
rangelands and their livestock.
As our population has grown, so has our need for an adequate land
base to sustain our people. We have been fortunate in recent years to
be able to acquire some private lands in and around our Reservation,
and to utilize adjacent BLM lands for grazing purposes under a
cooperative management agreement. However, we have not been able to
maximize the full utilization and effective management and protection
of our reservation lands because they lie in two, non-contiguous
pieces, separated by an area of rugged, BLM-controlled lands that were
once an integral part of our aboriginal homelands and are still
actively used by our people today.
For over a decade, I have been intimately involved in the Pueblo's
long-standing quest to connect the two separate pieces of our
Reservation and to ensure the preservation of this rugged and beautiful
area. Its lands and resources are of enormous cultural importance to
our people and have been utilized by us since time immemorial. They
contain significant archeological resources, natural materials used by
our people in pottery making, and innumerable shrines and sacred sites.
As part of our decade-long efforts to reacquire these important
ancestral lands, the Pueblo has taken steps to ensure that private
property owners in and around the Ojito area will not be displaced or
otherwise adversely impacted. For example, we have spent millions of
our limited tribal funds to purchase private lands and grazing permits
in and around the Ojito area, purchases which help assure the
protection of the Ojito's unique beauty. The few remaining private
property owners have been assured their property interests will be
protected and they support the proposed legislation.
While we originally sought the transfer of all 24,000 plus acres of
these BLM lands, we have endeavored to work with local BLM officials to
come up with a transfer proposal that they could support. In doing so,
we subsequently agreed to exclude the Ojito Wilderness Study Area and
surrounding Area of Critical Environmental Concern (ACEC) lands. In
addition to this major concession, we also agreed to continued public
access to the BLM lands to be transferred to the Pueblo, to commit to
the preservation of these lands in their natural and open state, and to
pay the BLM the fair market value of these lands. While some of these
compromises were difficult, and it was particularly difficult for us to
agree to pay for lands that had been taken from us given our very
limited financial resources, we are very pleased that we have finally
been able to come up with a legislative proposal that both the Pueblo
and the BLM can support. I can also assure you that the Pueblo of Zia
will fully comply with these conditions and will prove to be an
excellent steward of these lands.
I hope you can appreciate how long and difficult the effort leading
to the introduction of this legislation has been for us. We have
attempted to address a myriad of interests, issues and concerns raised
by the proposed transfer of lands and to ensure that no one's property
interests will be adversely affected. We have spent millions of dollars
acquiring lands within and adjacent to the Ojito area and have made
numerous changes to our legislative proposal in order to win the
support of the State of New Mexico, local governments, conservation and
user groups, neighboring ranchers, business and tourism groups, and
others. We are very proud of the widespread, bipartisan support that
has emerged for this bill.
In closing, I want to express special thanks to Senators Domenici
and Bingaman for jointly introducing Senate Bill 1649 and to all that
have expressed support for it. I also want to express our appreciation
to our State BLM Director, Linda Rundell and her staff for sitting down
and working with us on this legislation, and we look forward to
continuing to work with them on the implementation of this legislation.
With that, I want to thank the subcommittee for the opportunity to
testify on this very important bill and I am happy to entertain any
questions that committee members may have.
Senator Murkowski. Thank you, Governor Pino.
Mr. Heinrich, I know that you have traveled a great
distance, as has the Governor, and that is why I have allowed
you additional time for your 5-minute testimony. If you think
you can keep it within the 5 minutes, we can go ahead and take
your testimony at this point in time. Otherwise, we are
probably going to have to take a break.
Mr. Heinrich. Yes. I am sure I can keep it within 5
minutes.
Senator Murkowski. Thank you.
STATEMENT OF MARTIN HEINRICH, CITY COUNCILOR,
ALBUQUERQUE, NM
Mr. Heinrich. Madam Chairman, Senator Bingaman, and staff,
thank you for the opportunity to testify today. My name is
Martin Heinrich and I am a city councilor from District 6 in
Albuquerque. I am here today as a local elected official as
well as being a long-time volunteer in several wilderness and
conservation groups in New Mexico. The testimony I will present
today is on behalf of me and the Coalition for New Mexico
Wilderness.
The coalition is made up of businesses and organizations
that support the protection of additional wilderness in our
State. The coalition currently has more than 400 individual
business members, including the Albuquerque Convention and
Visitors Bureau which itself represents over 1,000 businesses
in my city. The coalition also includes a number of
conservation groups such as the New Mexico Wilderness Alliance,
the Wilderness Society, and the Rio Grande Chapter of the
Sierra Club.
On behalf of the coalition, I would like to thank Senators
Bingaman and Domenici and their professional staff for the hard
work that has gone into this legislation. They have worked in
partnership with a range of stakeholders and listened to the
concerns and recommendations from all interested parties to
develop this popular proposal. I would also like to thank our
Bureau of Land Management State Director, Linda Rundell, for
her leadership and her willingness to work with the
conservation community and the Pueblo of Zia in such an open
and professional manner.
S. 1649 is positive bipartisan legislation that enjoys
broad support. Specifically, support for the proposed Ojito
Wilderness includes unanimous endorsements from the Sandoval
and Bernalillo County Commissions and the Albuquerque City
Council, on which I am now proud to serve. Further, Governor
Bill Richardson, Lieutenant Governor Diane Denish, State Land
Commissioner Patrick Lyons, and several members of the New
Mexico State Legislature have written letters of support. The
Albuquerque Convention and Visitors Bureau, recognizing the
importance of tourism and wilderness recreation to our State's
economy, has also endorsed the Ojito Wilderness. The Navajo,
Hopi, and Zuni Nations and the All Indian Pueblo Council also
have offered their support for this proposal.
S. 1649 would designate the 11,000-acre Ojito Wilderness
area and allow the Pueblo of Zia to purchase certain adjacent
public lands which hold strong cultural and religious
significance for the people of Zia.
Under the bill, the lands to be purchased and held in trust
on behalf of the pueblo will remain open to the general public
and will be managed as open undeveloped space in perpetuity. We
commend the Zia for their conservation-minded land management
practices and are pleased to be working in partnership with
them.
The Ojito Wilderness area that would be designated by this
act is located less than an hour's drive northwest of
Albuquerque. It has been managed by the BLM as a wilderness
study area since its designation under the administration of
President Ronald Reagan and was formally recommended for
wilderness designation by Secretary of Interior Manuel Lujan in
1991.
The dramatic landscape of the proposed Ojito Wilderness is
characterized by picturesque rock structures, multi-colored
badlands, many cultural and archaeological sites,
paleontological resources, and diverse plants and wildlife
species. As such, the area is important for scientific research
and study and makes an ideal outdoor classroom for students of
all ages. As a former educator, who utilized this area for
educational camping trips, I can attest to what a unique
resource these land offer. In the years since I first
experienced Ojito, I have been drawn back time and again to
recreate with my family, photograph the landscape, lead group
hikes, and just explore. This is a truly special place for me
and many, many New Mexicans.
As an Albuquerque city councilor, I can tell you that New
Mexicans realize that protecting wilderness helps maintain and
enhance our State's unique culture and is important to our
quality of life and to our local economy.
On behalf of me and the coalition, we look forward to
working with the members of the committee and their staff and
the offices of Senators Domenici and Bingaman on this important
legislation. We particularly thank our Senators for their
leadership on this bill.
Again, thank you for the opportunity to present testimony
today. I am happy to entertain any questions that you have.
[The prepared statement of Mr. Heinrich follows:]
Prepared Statement of Martin Heinrich, City Councilor,
Albuquerque, NM
Chairman Craig, Members of the Committee and staff, thank you for
the opportunity to testify today. My name is Martin Heinrich and I am a
City Councilor from District 6 in Albuquerque. I am here today as a
local elected official as well as a long time volunteer in several
wilderness and conservation groups in New Mexico. The testimony I will
present today is on behalf of me and the Coalition for New Mexico
Wilderness.
The Coalition for New Mexico Wilderness is made up of businesses
and organizations that support the protection of additional wilderness
in our state. The Coalition currently has more than 400 individual
business members including the Albuquerque Convention and Visitors
Bureau which itself represents over one thousand businesses in my city.
The Coalition also includes a number of conservation groups such as the
New Mexico Wilderness Alliance, the Wilderness Society, and the Rio
Grande Chapter of the Sierra Club.
On behalf of the Coalition, I would like to thank Senators Bingaman
and Domenici and their professional staff for the hard work that has
gone into this legislation. They have worked in partnership with a
range of stakeholders and listened to the concerns and recommendations
from all interested parties to develop this popular proposal. I would
also like to thank our Bureau of Land Management (BLM) State Director,
Linda Rundell, for her leadership and her willingness to work with the
conservation community and the Pueblo of Zia in such an open and
professional manner.
S. 1649 IS POSITIVE, BI-PARTISAN LEGISLATION THAT ENJOYS BROAD SUPPORT
FROM CONSERVATION GROUPS, BUSINESSES, LOCAL GOVERNMENTS, GOVERNOR
RICHARDSON, OTHER STATE OFFICALS, THE PUEBLO OF ZIA AND OTHER NEARBY
PUEBLOS
More specifically, support for the proposed Ojito Wilderness
includes unanimous endorsements from the Sandoval and Bernalillo County
Commissions and the Albuquerque City Council, on which I am now proud
to serve. Further, Governor Bill Richardson, Lt. Governor Diane Denish,
State Land Commissioner Patrick Lyons, and several members of the New
Mexico State Legislature have written letters of support. The
Albuquerque Convention and Visitor's Bureau--recognizing the importance
of tourism and wilderness recreation to our state's economy--has also
endorsed the Ojito Wilderness. The Navajo, Hopi and Zuni Nations, and
the All Indian Pueblo Council also have offered their support for the
proposal.
Wilderness is close to home for most New Mexicans. In Albuquerque,
the Sandia Mountain Wilderness is the backdrop to the city of
Albuquerque, and the backyard recreation grounds for many city
residents. New Mexico's landscape and wildlands are part of what makes
our state unique. It is therefore not surprising that most New Mexicans
support the protection of more wilderness areas. In fact, an August
2002 poll of 600 New Mexico voters found that three-in-five voters
(59%) said they support setting aside more public land in New Mexico as
wilderness areas.
Section 5 of the Ojito Wilderness Act--Land Held in Trust for the
Pueblo of Zia
S. 1649 would designate the 11,000-acre Ojito Wilderness area and
allow the Pueblo of Zia to purchase certain adjacent public lands,
which hold strong cultural and religious significance for the people of
Zia. The Pueblo of Zia has a longstanding interest in acquiring these
lands that are currently managed by the Bureau of Land Management.
Under the bill, the lands to be purchased and held in Trust on
behalf of the Pueblo will remain open to the general public and will be
managed as open, undeveloped space in perpetuity. We commend the Zia
for their conservation-minded land management practices and are pleased
to be working in partnership with them toward our common goal of
protecting the Ojito Wilderness and surrounding land for future
generations.
All lands involved in the proposal will be open to the public for
recreational use and scientific research, but be protected from off
road vehicle use, mining, new roads, and other development. The
existing Area of Critical Environmental Concern (ACEC) that encompasses
the Ojito area and includes additional environmentally sensitive land
primarily to the south and east would remain in public ownership.
Section 4 of Ojito Wilderness Act--Designation of the Ojito Wilderness
The Ojito Wilderness area that would be designated by this Act is
located less than an hour's drive northwest of Albuquerque. It is
currently managed by the Bureau of Land Management as a Wilderness
Study Area and was recommended for permanent wilderness designation by
the agency more than a decade ago.
The approximately 11,000 acres of public land that make up the
proposed Ojito Wilderness are characterized by dramatic landforms and
rock structures, multi-colored badlands, a high density of cultural and
archeological sites, paleontological resources, and diverse plant and
wildlife species.
The steep-sided mesas, remote box canyons, deep arroyos, and rough
terrain of the Ojito area provide excellent opportunities for solitude
and recreation including bird watching, photography, hiking, game bird
hunting and camping. Visitors to the area can enjoy dramatic views of
Cabezon Peak, Mesa Prieta, the Jemez Mountains, and the Sandia
Mountains.
A high density of cultural and archeological resources is found in
the area including petroglyphs, kivas, and other PaleoIndian, Archaic,
Pueblo, Navajo and Spanish cultural sites.
Several rare plant species--including grama grass cactus, Knight's
milkvetch and Townsend's aster--and several solitary stands of
ponderosa pines are found here. The area provides nesting habitat for
birds of prey, swifts and swallows. Other wildlife species that have
been identified in the area include mule deer, antelope, and mountain
lion.
Significant paleontological sites have been found in the proposed
Ojito Wilderness including one of the largest dinosaur skeletons ever
discovered--that of a Seismasaurus. As such, the area is important for
scientific research and study and also makes an ideal outdoor classroom
and natural laboratory for students of all ages. As a former educator
who utilized this area for educational camping trips, I can attest to
what a unique resource these lands offer. Here, students can stay in a
picturesque and remote wilderness setting while studying geology,
paleontology, anthropology, botany and other natural sciences. There
are few undisturbed landscapes that offer so many possibilities for
education, recreation and inspiration. In the years since first
``discovering'' Ojito, I have been drawn back time and again to
recreate with my family, photograph the landscape, lead group hikes,
and just explore. This is a truly special place for me and many, many
New Mexicans.
If approved, this legislation would create the first new wilderness
area in New Mexico in over 15 years and would be one of only a handful
of wilderness areas found on lands managed by the BLM in our state. The
Ojito area is eminently qualified as a wilderness and passage of this
legislation would continue a long, proud bi-partisan tradition in New
Mexico of working to set aside special areas on our public lands in
their natural state for future generations--a tradition which started
with Aldo Leopold's efforts to set aside the Gila Wilderness in
southern New Mexico in the 1920s--and I am happy to say continues with
this legislation today.
As an Albuquerque resident and city councilor, I can tell you that
New Mexicans realize that protecting wilderness helps maintain and
enhance our state's unique culture, and is important to our quality of
life and to our local economy. Protecting new wilderness areas in New
Mexico--particularly an area that is as easily accessible to our
state's population centers as the Ojito area--provides a range of
benefits to New Mexicans. These include recreational opportunities and
a chance to enjoy a place that provides quiet and solitude--a contrast
to the day-to-day challenges of urban life. New Mexico's varied
wildlands enhance our quality of life and create a powerful incentive
for attracting new businesses to our state by creating the kind of
environment where people want to live, work and enjoy free time with
their families.
On behalf of me and the Coalition for New Mexico Wilderness, we
look forward to working with Members of the Committee and their staff,
and the offices of Senators Domenici and Bingaman on this important
legislation. We particularly thank our Senators for their leadership on
this bill and hope to be able to work with them and others in our
delegation on future wilderness proposals for lands in our state.
Again, thank you for the opportunity present testimony today. I am
happy to answer any questions that you may have.
Senator Bingaman. Well, thank you very much. Let me thank
Councilman Heinrich and also Governor Pino for their excellent
testimony. I do not know if there will be any questions after
we return. We do have to take a short recess because of the
vote situation on the Senate floor, but again, thank you for
coming. We intend to move ahead with this bill as soon as we
can resolve the concerns that we have heard from the Bureau of
Land Management this afternoon. Thank you very much for being
here and we will adjourn until about 10 minutes from now.
[Recess.]
Senator Murkowski. Back on the record.
Thank you for accommodating us on that vote. Hopefully we
will not have any more interruptions and keep you here too much
longer.
As I indicated to our guests from New Mexico, I respect the
travel time which so many of you have undergone in order to be
here today. So I do want to give you the opportunity to express
your support, opposition, concerns, what have you as it relates
to the legislation. I do welcome all of you.
We will go in the order from my right to left recognizing,
Mr. Bisson, that you are here and available to take questions.
So we will not make you speak unless we need you. But with
that, if we can begin with Marty Rutherford, the commissioner
of Alaska Department of Natural Resources. Welcome to the
committee.
STATEMENT OF MARTY RUTHERFORD, DEPUTY COMMISSIONER, ALASKA
DEPARTMENT OF NATURAL RESOURCES, ANCHORAGE, AK
Ms. Rutherford. Thank you. Good afternoon, Madam Chairman,
and members of the committee.
On behalf of the State of Alaska, I thank you for holding
this hearing on two bills that are very important for Alaskans.
As you said, my name is Marty Rutherford. I am the deputy
commissioner for the Alaska Department of Natural Resources.
The Alaska Department of Natural Resources manages the lands
and resources owned by the State of Alaska.
On behalf of the State, I offer the following comments in
support of two bills before the committee: S. 1421, the Alaska
Native Allotment Subdivision Act, and S. 1466, the Alaska Land
Transfer Acceleration Act.
I would like to begin with S. 1466. This bill, along with
appropriate funding, will speed up land transfers to thousands
of individual Alaska Native allottees, to Alaska Native
corporations, and to the State of Alaska and in this way
provides a tremendous opportunity for Alaska. I would like to
take a moment to describe the problem this bill helps solve and
why it is important to Alaska.
This is our promised land. As Senator Stevens said, during
debate about State's Statehood, Alaska was given a large land
entitlement because it was through the ownership and
development of these lands that the new State would gain the
revenues needed to sustain itself as a State. That farsighted
prediction has proven correct. In Alaska, the State and native
lands provide the revenues for governing Alaska and development
of these lands creates 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 45
years later, the land remains in part a promise. Let me
explain.
The land granted to the State through the Statehood Act and
other Federal laws will result in the eventual transfer of
nearly 105 million acres to the State. To date, 90 million
acres have been transferred and only 45 million acres have been
surveyed and patented. These lands have provided Alaska with
land for the largest State park system in the Nation, provided
us with the rich oil fields of the North Slope, and have
enabled the State to transfer hundreds of thousands of acres
into private ownership through State land sale programs.
While these land transfers have benefitted our State, the
Federal Government has yet to transfer over 23 million acres
promised the State and Alaska Native corporations, an area that
is nearly the size of the State of Virginia. In addition, much
of the land transferred to date has not been surveyed and the
Federal Government needs to survey and issue patent to over 90
million acres, an area nearly as large as the entire State of
California.
Alaskans, including individual Alaska Native allottees, the
native corporations, and the citizens of the State, again as
Senator Stevens had indicated, we have waited too long for
these land transfers to be completed. For example, the deadline
for filing most native allotments was 33 years ago. Yet,
thousands of allottees are still waiting for final approval of
their allotments. Some of these applications date back to the
late 1800's. Similarly, 33 years after the passage of the
Alaska Native Claims Settlement Act, ANCSA, the Federal law
that was to resolve the aboriginal land claims in Alaska, the
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. Land transfers during much of the past decade have
averaged only 50,000 acres per year, although that rate has
significantly increased recently. However, at that average
rate, it would take 300 years to complete land transfers to the
State. Again, we cannot wait that long.
Failure to transfer the remaining entitlement to these
groups places a significant impediment on 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 had a chilling effect on
development in some areas of the State. Secure land title is a
fundamental prerequisite to use and development of the land.
Confusion about the eventual owner puts any significant
exploration or investment on hold until the ownership is
established.
This legislation has the goal of largely completing these
land transfers by the year 2009, which would be the 50th
anniversary of Alaska Statehood. This legislation improves land
transfer procedures and rules. It does not grant any new
entitlements. It does not grant the State any land that we
would not otherwise receive. Rather, this legislation removes
barriers to the conveyance process and creates some new ways to
solve some very old problems.
Those of us in State government who closely watch the
conveyance process are concerned that the present process will
never resolve the remaining entitlement. I say this absolutely
not to disparage the good work of the Bureau of Land Management
employees nor the best intentions of the Department of the
Interior. Rather, the interactions of entitlements for
allottees, the ANCSA corporations, and the State, and with
lingering, outdated public land orders has resulted in a system
that cannot untangle this complex web in a timely or reasonable
way.
S. 1466 is a long and complex bill. It is complicated
because the land conveyance process is inherently complicated.
Since the time the original bill was introduced, we as the
State have participated in discussions with the Bureau of Land
Management and other interested parties regarding changes to
the bill. We believe that the proposed amendments will address
many of the concerns people have identified, and we look
forward to working with the committee as it considers revisions
to the bill.
The State of Alaska strongly supports S. 1466 because it
provides a system that allows, with the complement of
appropriate funding, a new and comprehensive way of
accomplishing conveyances that will fulfill the promises made
to Alaskans decades ago.
If would grant me just one additional moment, I would like
to briefly turn my attention to the other Alaska bill before
the subcommittee today.
The State also supports S. 1421, the Alaska Native
Allotment Subdivision Act. This legislation allows individuals
to legally subdivide native allotments. The need for this
legislation surfaced when various native allottees attempted to
subdivide their land under Alaska's municipal and State law. We
understand that their ability to follow municipal and State law
has been called into question under Federal law and puts a
cloud on the legality of those subdivisions. Allowing native
allottees to subdivide their land according to State and
municipal law, when they wish to do so, is an important
objective and one the State fully supports.
In closing, I would just like to say again that the State
of Alaska supports these two pieces of legislation under
consideration by the subcommittee and we thank you for
providing Alaskans the opportunity to speak to you today.
Senator Murkowski. Thank you. I appreciate this, Ms.
Rutherford.
Let us next go to Mr. Edward Thomas, the president of the
Central Council Tlingit and Haida Indian Tribes of Alaska from
Juneau. Welcome.
STATEMENT OF EDWARD K. THOMAS, PRESIDENT, CENTRAL COUNCIL
TLINGIT AND HAIDA INDIAN TRIBES OF ALASKA, JUNEAU, AK
Mr. Thomas. Thank you, Madam Chairman or Chairwoman. On
behalf of the Alaska Native community, I thank you very much
for the opportunity to provide my testimony here today. I also
want to thank you and commend you on your leadership of not
only bringing forth this very difficult issue but also coming
to Alaska and hearing the people speak. That means a lot to us.
So we commend you for that.
Let me make it very clear that from the native point of
view we almost unanimously support the goal of this bill. But
we also need to make it very clear we want to do so without
diminishing the rights of those native allotment applicants.
Secondly, I want to make it clear that I am not here to do
what is termed as government-bash. That really is not the
intent. We want to work as cooperatively as possible with all
parties to make sure that we can achieve our goal in a timely
manner.
I must point out that while we are identifying the
problems, however, we need to point out there are some
weaknesses in the agency that need to be addressed and that is
covered in the testimony. There are weaknesses in the language
proposed. We provide that in our written testimony. I hope that
you will take the time to read that. We are very explicit and
detailed in the written testimony so that there can be clarity
is what the intent is in proposing such language.
I need to also point out that many of the delays are not
because there are applicants there or there are problems or
mixups in the law or the applicants are not cooperating. I need
to point out that much of the delays are because the system is
broken in the agency, that there are a lot of delays on
people's desks that need to be dealt with.
Just to give you an example, when the Native Claims
Settlement Act was passed, just about the same time, the trans-
Alaska pipeline was approved to be built. All the lands for the
right-of-way and the connecting lands needed for building the
pipeline had all been certified. The same amount of time since
then and now, yet we still have less than a third of our lands
being certified. So it appears to me that there is either a
conflict in principle or an absence of will to get those things
off somebody's table.
Furthermore, in the Bureau of Indian Affairs, it has been
well known for a long time that there are more resources
needed, but yet the BIA year after year does not apply for the
resources necessary either from the President or from the
agency to get the job done.
We also are aware that there are a number of protests by
the State over many of the applicants. We feel that it really
does not serve much purpose other than just further delaying
the processing of these applications. The applications are
being processed in accordance with law and regulations and they
should be allowed to do so.
In my written testimony, I point out that we feel that the
goal of getting these native allotments processed by 2009 are
nearly impossible unless you embrace some of our
recommendations. We also feel that the proposed legislation
does compromise the rights of many of the people who are
applicants, and we provide some ways in which to both protect
the rights of those applicants and to expedite the application
process.
I think that it is important to point out that when you
spoke about the appeals process earlier, that we very much
agree with what your points were in bringing those forward,
that as we try to expedite the process, oftentimes the rights
of the people are compromised in the interest of moving
forward. I believe that the two can work hand in hand if the
deadlines were not just way off in 2009, but to break it into
smaller increments. The deadlines, for example, to have a
hearing would be identified within the process of the
application.
Another issue that is brought forth is the issue of the
judge. The administrative law judge comes to Alaska and deals
with about 15 cases and then moves on. This is something that
should really be going on throughout the year.
I am going to conclude by pointing out that there are four
major parts of the written testimony that I hope that you will
be able to categorize. Number one is the right to amend
applications. I will not go into detail. It is covered in
section 305. The right to reinstate closed allotment
applications. Section 305 again. The right to reconstruct lost
applications. As you are well aware, there are more than 500
applications that were lost between 1970 and 1971. They are
logged in but they cannot find them and they really should be
allowed to be reintroduced by the applicants. And then finally,
we go into a lot of detail on the right for a fair hearing on
appeal.
Once again, thank you very much for this opportunity and I
commend you once again for your leadership in bringing this
very important issue forward. Thank you. Gunalcheech howa.
[The prepared statement of Mr. Thomas follows:]
Central Council Tlingit & Haida Indian Tribes of
Alaska,
Office of the President,
Juneau, AK, February 9, 2004.
Hon. Larry E. Craig,
Subcommittee on Public Lands and Forests, Dirksen Office Building,
Washington, DC.
Dear Senator Craig: It is my privilege to submit to you my
testimony and the technical amendments * to S. 1466 that were drafted
by the S. 1466 Working Group under the auspices of the Central Council
of Tlingit and Haida. The working group is representative of 150
federally recognized Tribal governments in Alaska and includes the
Sitka Tribe, Yakutat Tlingit Tribe, Chilkat Indian Village, Inupiat
Community of the Arctic North Slope, Association of Village Council
Presidents, Tanana Chiefs Conference, Alaska Realty Consortium,
Manillaq Association, Bristol Bay Native Association, Kawerak, Inc. and
the Central Council of Tlingit and Haida. Also involved in the working
group is the Alaska Federation of Natives, Alaska Intertribal Council
and Alaska Legal Services Corporation.
---------------------------------------------------------------------------
* The technical amendments have been retained in subcommittee
files.
---------------------------------------------------------------------------
The amendments address three basic concerns. First, the amendments
correct the flaws in the existing legislation that we believe violate
the constitutional and statutory rights of Native allotment applicants.
Second, the amendments allow the Tribes to assume many of the allotment
responsibilities that BLM and BIA have failed to carry out in a timely
manner. Third, the amendments allow the unfairness of past practices to
be corrected by allowing two groups the opportunity to obtain
allotments.
I would be happy to answer any questions that you may have. Again,
we appreciate the opportunity to submit testimony amendments to S.
1466.
Sincerely,
Edward K. Thomas,
President.
Prepared Statement of Edward K. Thomas, President, Central Council
Tlingit and Haida Indian Tribes of Alaska, Juneau, AK
INTRODUCTION
Mr. Chairman and Honorable members of the Senate Subcommittee on
Public Lands and Forests of the Committee on Energy and Natural
Resources:
My name is Edward Thomas. I am the elected President of the Central
Council of the Tlingit and Haida Indian Tribes of Alaska, a federally
recognized Indian Tribe with 24,000 Tribal citizens. Southeast Alaska
is the ancestral homelands of the Tlingit and Haida people. In addition
to speaking on behalf of the Central Council today, I am also here to
speak on behalf of a Working Group, which I formed in August 2003 to
specifically address S. 1466. That group represents about 190 Tribal
entities.
I am honored to be here today to speak to this Committee about S.
1466 and its adverse impacts on the Native people of Alaska. I will
first summarize the land transfer problems that S. 1466 attempts to
address. Second, I will identify the provisions of S. 1466 that
adversely impact Native allotments. Third, I will summarize and discuss
the technical amendments to S. 1466 I am submitting to the Committee
today.
BACKGROUND OF S. 1466
S. 1466 does not change all of the reasons why the transfer of land
in Alaska has taken so long. Thus, it is certain that S. 1466 will not
bring about the finalization of the transfers of land to Native
allotment applicants, Native Corporations, and the State of Alaska by
the year 2009. Instead, S. 1466 offers false hopes that the transfer of
land will be completed in 2009. That goal is impossible under S. 1466.
However, the goal is possible if the Committee adopts the technical
amendments to S. 1466 that I submit to you today. Before I discuss
those amendments, I want to explain what is wrong with S. 1466.
The overall goal of S. 1466 is to ensure that the State of Alaska
and Native Corporations obtain patents to land that each has selected.
In order for that to occur, Bureau of Land Management (BLM) must
complete and finalize all pending Native allotments. In other words,
pending Native allotments are holding up the finalization of land
transfers to the State and Corporations. To remedy that problem, S.
1466 streamlines the government's processing of allotment applications
but in doing so it eliminates existing property rights of Native
allotment applicants. This is justified according to a BLM Memo,\1\
because Native allotment applicants (or heirs) are the cause of the
delays in finalizing Native allotments. It is not true that Native
allotment applicants (or heirs) are the cause of the delay. Instead,
the cause is the inefficient and lengthy processes used by BLM, the
Office of Hearings and Appeals (OHA), and the Interior Board of Land
Appeals (IBLA).
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\1\ Memorandum from BLM, Alaska State Director to Assistant
Secretary, Land and Minerals Management (May 7, 2003).
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The length of time BLM takes to process allotment applications is
caused by numerous factors including:
Many approved applications sit idle for years awaiting surveys.
Many applications sit idle for years awaiting a hearing
because allotment hearings are routinely only conducted in the
summer months thereby severely limiting the total number of
allotment hearings scheduled each year. Further, there were
only a few allotment hearings in the summer of 2003 because the
Office of Hearings and Appeals ran out of money. By the time
hearings finally occur, many applicants and their witnesses are
deceased. Many applications sit idle for years waiting to be
processed after favorable hearing decisions or favorable appeal
decisions. Only minor ministerial tasks need to be done in
these cases.
Many applications sit idle for years waiting for an appeal
decision from the IBLA. Five years is the average length of
time it takes the IBLA to issue a decision.
Many applications could now be final under the legislative
approval provisions of ANILCA but the State of Alaska protested
over 6,000 allotments, thus adding years to the process.
It is important to understand that the delay in processing Native
allotment applications has hurt allotment applicants far more than the
delay has hurt either the State or Native Corporations. This is true
because in many old cases, the applicants and their witnesses have died
during the thirty and more years it has taken the government to process
the applications which resulted in the rejection of allotments. We can
expect this injustice to only increase as time goes on. I am here today
to speak for all the applicants and their heirs who continue to wait
for the government to make good on its promise to convey title to land
for their allotments.
OVERVIEW OF NATIVE ALLOTMENTS IN ALASKA
Before I discuss the reasons why I oppose specific provisions 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.\2\ 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 Native people to
preserve their subsistence traditions, not destroy them. Protecting
traditional uses of land and resources remains equally important today.
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\2\ Report on Conditions in Alaska, by James W. Witten, Special
Inspector, General Land Office (1903).
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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.\3\ 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 by the inability of Native people to access and harvest
traditional resources.\4\
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\3\ Pence v. Kleppe, 529 F.2d 135, 141 (9th Cir. 1976).
\4\ 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 that 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. History tells us that
non-native encroachment on their lands caused widespread devastation
resulting in the starvation of Native men, women, and children.
Congress recognizing its duty to protect the use and occupancy of lands
by Native people in Alaska decided it must take action. The action 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.
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, and as of 1970,
only 245 allotments had been conveyed to Native people.\5\
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\5\ 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)).
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The Alaska Native Allotment Act was repealed in 1971 by the passage
of the Alaska Native Claims Settlement Act (ANCSA).\6\ After 1971 only
applications that were then pending were processed. In 1970, the
government finally implemented a program to let Alaska Natives know
about the opportunity to get title to allotments of land. This program
had government employees visiting villages throughout the state helping
Alaska Natives to file allotment applications. Because of these
efforts, approximately 10,000 allotment applications were filed before
the 1971 deadline. However, the delay in finalizing allotments has
never been too many applications filed but rather the process used for
allotment applications is lengthy and costly.
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\6\ 43 U.S.C. 1617.
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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).\7\ 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 more than 6,000 applications as a way to prevent legislative
approval.
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\7\ 43 U.S.C. 1634.
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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 today.\8\ Many of the
pending allotments require hearings on one or more of the following
three issues: 1) whether the application was filed on time but later
lost by the government; 2) whether the legal description on the
application is erroneous and should be amended; and 3) whether the
applicant's use of the land meets the legal requirements for obtaining
an allotment.
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\8\ 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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Some of these very old cases in need of hearings are further
complicated and could be unfairly denied because many of the applicants
and first hand witnesses have died. All applications are now over 30
years old and some much older ranging up to 90 years old.\9\
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\9\ See the pending applications of Chetah Ka (A-000438) filed in
1919, Paul Brown (A-000439) filed in 1909; Harry McKinley (A-000441)
filed in 1909; Setuck Harry (A-001489) filed in 1911: John Ketch
Koostien (A-001499) filed in 1912; James Rudolph (A-001745) filed in
1915; William Jackson (A-001747) filed in 1915; Jack Yaquam (A-001787)
filed 1915; Jack Moore (A-002492) filed in 1915; and David Lawrence (A-
002494) filed in 1915.
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The age of these claims is far more acute for the applicants or
their heirs because in many of the old cases, the applicants and their
first hand witnesses are deceased. Many of these old claims require a
hearing where the applicants' heirs, many who are the grandchildren of
the applicants, must prove by a preponderance of the evidence that the
applicant's use of the land was substantially continuous for more than
5 years potentially exclusive of others. One example is the case of
Harry McKinley who filed his allotment application in 1909, and died in
1927. Finally, in 2002, over 90 years after Mr. McKinley filed his
application and 75 years after he died, the Department scheduled an
evidentiary hearing on the issue of Mr. McKinley's use and occupancy.
It then took until 2004 for the judge to issue a decision which is on
appeal to the IBLA where it will likely remain for another 5 years. Mr.
McKinley is not an isolated case.
Another example is the case of Setuck Harry who filed his
application in 1911 and died in the early 1940's. An evidentiary
hearing was held to determine the correct location of the allotment and
the decision issued in 2000 was favorable to the heirs and so was the
IBLA's 2001 decision. Since that 2001 decision, BLM has accomplished
little work; the final approval of that allotment has not yet been
issued. In the meantime, the U.S. Forest Service permits fishing camps
on this allotment and has even allowed fuel to be stored on that land.
Another example is the case of Luke Thomas who filed his
application in 1915. His application was determined to be valid in
1991. Because Mr. Thomas' allotment land was mistakenly conveyed to the
State, this is a ``title recovery'' case which simply means the State
must reconvey the land to BLM. Since BLM's 1991 validity decision,
there has been no action by the BLM to recover this land except a mere
request letter sent to the State in 1992.
Another case is that of Chetah Ka who filed his application in
1911, and died in 1919. On February 8, 2002, the BLM requested an
evidentiary hearing to be scheduled on the issue of Mr. Ka's use of the
claimed land. It has been 93 years since Mr. Ka filed his application
but his heirs have still not been afforded a hearing on Mr. Ka's use of
the land.
There are many other similar examples of cases that have been
delayed by a process that has failed. There is no one reason that
explains the length of time it takes an allotment to be finalized. When
compared to homestead claims in Alaska, it is clear the amount of
evidence the government requires to prove allotment claims are valid is
a major factor in causing the delays because today there are no
outstanding homestead claims because the government required minimal
proof for those claims.
SECTIONS 301, 302, 305 AND 501 ELIMINATE IMPORTANT STATUTORY AND
CONSTITUTIONAL RIGHTS OF NATIVE ALLOTMENT APPLICANTS
Sections 301 and 302 allow the government to exercise its
discretion to avoid its obligation to recover the land when the
allotment is valid and the land was erroneously conveyed. Although,
Section 301 allows the State or Corporation to offer the applicant land
in a different location from the allotment land, if the applicant does
not consent, this Section authorizes the Secretary to survey the land
as it is now described in BLM's records. This provision will authorize
surveying land that may not correctly describe the allotment land. An
unknown number of allotments are incorrectly described in BLM's
records. In most cases these errors are the fault of the government,
not the fault of the applicant.\10\ Further, these sections do not
eliminate BLM's lengthy adjudication of allotments because these
sections apply only to ``valid'' allotments. The phrase valid allotment
denotes the final determination BLM issues after its adjudication of
the applicant's use and occupancy. In hundreds of allotment
applications filed over 30 years ago, a final validity decision has
still not been made. Thus, Sections 301 and 302 do nothing to speed up
BLM's adjudication process.
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\10\ Mary Olympic v. United States, 615 F.Supp. 990, 994 (D. Alaska
1985).
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Section 305 eliminates the existing right of Native allotment
applicants to amend an allotment description. Amendments of allotments
arose from the recognition by Congress that a significant percentage of
allotment applications contained errors that were not the fault of the
applicants.\11\ In most cases it was the BIA that identified the
location of the allotment and provided BLM with many erroneous legal
descriptions. Congress intervened with Section 905(c) of ANILCA
allowing the correction of erroneous legal descriptions.
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\11\ 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 ANILCA is allowed
only in very limited situations; it is allowed only in situations where
it is proven that the land described in the application is not the land
that the applicant originally intended to apply for as the allotment.
The purpose of Section 905(c) is to correct mistakes in the allotment
applications that the government made when it collected the
applications during 1970-1971.
If the right to amend is eliminated as contemplated by S. 1466,
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 receive land they
did not intend to apply for, valuable improvements on the land they did
intend to apply for would be lost.
Sections 305 (f)(1) and (f)(3) eliminate the right of allotment
applicants to reinstate their closed cases. Under current federal court
decisions, 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 due process.\12\
Before these federal court decisions, allotment applications were
routinely rejected and closed whenever it believed there was
insufficient evidence to prove the applicant's qualifying use of the
land claimed for an allotment. The number of closed cases that should
be reopened is unknown but we suspect it is a substantial number.
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\12\ Pence v. Kleppe, 529 F2d 135 (9th Cir. 1976); Pence v. Andrus,
586 F.2d 733 (9th Cir. 1978).
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Eliminating the right to reinstate allotment cases closed in
violation of the applicants' due process rights compounds the original
violation and will only lead to future litigation. Although, the U.S.
Supreme Court has repeatedly held that while Congress has plenary
authority over Indian affairs, which would include Native allotment
matters, it must comply with guarantees of the U.S. Constitution,\13\
such as the due process clause and the just compensation clause.\14\
Congress should delete Sections 305 (f)(1) and (f)(3) from S. 1466 and
instead, direct BLM to reinstate those unlawfully closed cases.
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\13\ 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).
\14\ See, Babbitt v. Youpee, 519 U.S. 234 (1997); Bolling v.
Sharpe, 347 U.S. 497 (1954); United States. v. Antelope, 430 U.S. 641
91977); Hodel v. Irving, 481 U.S. 704 (1987).
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Section 305(f)(2) severely limits the right of allotment applicants
to file reconstructed applications in cases where the government lost
the original applications. This problem arose during 1970-71, when the
government went to villages in Alaska and filled out by hand numerous
allotment applications from information provided by the applicants.
These applications were then sent to California where specific legal
descriptions were created for each allotment. The applications were
typed and sent back to Alaska. This process caused the loss of more
than 500 applications. Still today, there are applicants wondering when
they will get allotment certificates, not knowing their applications
were lost. Under current rulings of the IBLA, applicants (or heirs)
have the right to file reconstructed applications where the government
lost their original application.
Unfortunately, Section 305 (f)(2) eliminates this right and in
addition allows BLM to reject previously filed reconstructed
applications unless the BLM's file already contains the information
that would meet the long list of evidentiary requirements as set forth
in Section 305 (f)(2). This Section effectively creates a new and
extremely harsh standard far exceeding the evidence the IBLA now
requires to prove the government lost an application.\15\ It will be
impossible for many applicants to meet this new standard because they
will be required to remember details of events surrounding the filing
of their applications which occurred over thirty years ago.
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\15\ 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).
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Moreover, it likely violates due process to authorize BLM to close
cases that do not meet the higher evidentiary standard when notice of
the new standard has never been provided to applicants. Even if notice
of the new standard was provided, it is likely a due process violation
to allow BLM to close such cases without a hearing on the factual
issues.
Section 305(f)(3) eliminates the right of allotment applicants to
request reinstatement of relinquished allotment land even if the
relinquishment is invalid. The right to reinstate an allotment on the
grounds that a relinquishment is invalid is addressed in Section 905 of
ANILCA.\16\ Invalid relinquishments according to the IBLA are those
that were unknowing or involuntary.\17\ One example of an invalid
relinquishment is found in the case of Willie Arkanakyak, an Alaska
Native who neither spoke nor read English.\18\ Evidence introduced in
the hearing established that a BIA employee found Mr. Arkanakyak
intoxicated in a bar and caused him to sign a relinquishment of his
allotment.
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\16\ 43 U.S.C. 1634(a)(6).
\17\ Matilda Johnson, 129 IBLA 82 (1994).
\18\ Estate of Willie Arkanakyak, IBLA 93-113 (March 8, 2001).
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Section 501 creates new procedures for allotment hearings and
appeals, sacrificing the right of Native allotment applicants to have
fair and impartial hearings and appeals. Further, the new procedures
add time and cost to the existing hearings and appeals process. It is
also certain that the new procedures will not meet due process.
Currently, applicants (or heirs) have a right to a fair hearing to
determine certain factual issues in their allotment cases. The hearings
are conducted by impartial administrative law judges under rules
proscribed by federal regulations. These hearings meet due process
guarantees.\19\ Unless the new hearing procedures are identical to the
existing procedures, it is likely that due process requirements will
not be met.
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\19\ Pence v. Andrus, 586 F.2d 733 (9th Cir. 1978).
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Applicants presently have a right to appeal agency decisions to the
IBLA under rules proscribed by federal regulations. Unless the appeals
process contemplated by Section 501 is identical to the existing
appeals process, it is unlikely that due process will be met.
The hearings and appeals process are unquestionably slow causing
years to the finalization of many allotment cases. However, that does
not justify eliminating the rights of Native allotment applicants to
fair and impartial hearings and appeals. Instead, this Committee should
examine why OHA and IBLA have failed to hold hearings and issue
decisions on a timely basis. Lack of resources is one major reason for
this failure. For example, the OHA generally schedules allotment
hearings only in the summer months which drastically reduce the total
number of hearings that occur each year. Obviously, scheduling year-
round hearings would solve part of the problem. In addition, although
only 15 hearings were scheduled for the summer of 2003, OHA cancelled
10 because it ran out of money.
TECHNICAL AMENDMENTS TO S. 1466
The proposed amendments to S. 1466 will afford Native allotment
applicants due process and will facilitate the transfer of land
selected by the State and Native Corporations. Numerous provisions in
S. 1466 add substantial time and costs to the finalization of land
transfers, contrary to the specific purpose of this legislation. I am
certain that the goal of finalizing the transfer of land in Alaska by
2009 will never be reached if S. 1466 is enacted as it is now written.
I offer this Committee technical amendments to S. 1466 that assures the
2009 goal will be reached and the rights of Native people in Alaska
will be protected.
Summary of Technical Amendments
Legislative Approval: Section 305 is amended to provide legislative
approval of all pending applications with mediation required for
settlements where the State or Corporations have a valid interest in
the land. This provision will substantially reduce the delays that are
inherent in BLM's existing process.
Title Recovery: Section 302 is amended to substantially shorten the
title recovery process by providing for legislative approval of all
pending applications where the land has been erroneously conveyed to
the State or Native Corporation. In hundreds of allotment cases, the
title recovery process has taken over 30 years and is still not
finalized. Without legislative approval of these cases, it will be
impossible to finalize the hundreds of pending title recovery allotment
cases by 2009. Section 302 also makes it clear that if alternative land
is offered to the applicant by the State or Corporation and the
applicant refuses it, the BLM is not authorized to force the applicant
to accept but instead, must carry out its duty to recover the land in
accordance with the decision in Aguilar v. United States.\20\
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\20\ 474 F.Supp. 840 (D. Alaska 1979) (holding that BLM had a trust
obligation to recover allotment land it had erroneously conveyed to the
State of Alaska).
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Reconstructed/Reinstated/Amended Applications: Section 310 is
amended to reaffirm the existing right to reconstruct lost applications
and to reinstate improperly closed applications and provides a fair
timeline for the finalization of cases. Section 310 requires BLM to
identify all allotment applications that were or may have been
improperly closed and to notify each applicant. The applicants will
have three years after such notice to request reconstruction,
reinstatement or amendment of their allotment applications. BLM's
report identifying improperly closed allotment cases with subsequent
notice to applicants and a 3-year deadline to request reinstatement
will substantially reduce the likelihood that the protected property
rights of Alaska Natives will be sacrificed in a rush to finalize the
land transfers to the State and Corporations.
Hearings and Appeals Process: Section 501 is amended to provide two
options that will ensure that allotment hearings and appeals will be
completed in a fair and timely manner. The first option authorizes
compacting/contracting allotment hearings and appeals to the Tribes in
Alaska. The second option increases the resources of OHA making it
possible for the opening of an office in Alaska where administrative
law judges would be permanently assigned to conduct year round
allotment and probate hearings for cases where a Tribe elects not to
provide such service.
Vietnam Veterans Allotments: Section 307 adds a new section to S.
1466 which amends 43 U.S.C. 1629g allowing allotment applications to be
filed for 160 acres of vacant federal land by Alaska Natives veterans
(or heirs) who honorably served during the Vietnam era.
Southeast Alaska Allotments: Section 308 adds a new section to S.
1466 which allows reinstatement of applications that were closed under
the Shields \21\ case adjusting the unfair balance in the geographic
distribution of allotments because the land in all of Southeast Alaska
was withdrawn by 1909.
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\21\ Shields v. United States, 698 F.2d 987 (9th Cir. 1983).
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Compacting or Contracting the Department's Responsibilities to
Tribes: Section 309 adds a new section to S. 1466 which allows Tribes
to assume many of the allotment responsibilities of the Department of
the Interior including the adjudication, hearings, and appeals of
allotments and probate work. This provision will cut years from the
current processing of allotments.
ANALYSIS OF TECHNICAL AMENDMENTS TO S. 1466
The amendments to S. 1466 will protect the rights that Native
allotment applicants currently enjoy under due process safeguards,
administrative and federal case law, ANILCA, and the Alaska Native
Allotment Act. The amendments will also ensure that Congress meets its
trust responsibility to Alaska Native allotment applicants.
Legislative Approval: Legislative approval for all pending
allotments including those allotments reinstated under the technical
amendments will greatly reduce the time it takes to now finalize
allotments. Without legislative approval, it will be impossible for
allotments and other land transfers to be finalized by 2009. Although,
the legislative approval provisions under ANILCA \22\ were intended to
achieve this exact result, it failed to do so because the state
exercised its veto power in at least 60 percent of the allotment
applications, forcing hundreds of cases into BLM's lengthy adjudication
process. The allotments that have been legislatively approved prove
that this procedure saves time and money. The finalization of land
transfers will not happen by 2009 without the expansion of legislative
approval because it is simply impossible for the Department to
adjudicate and hold hearings for the current number of pending
applications.
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\22\ 43 U.S.C. Section 1634(a)(1(A).
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Title Recovery: Amending Section 301 reduces delays. This amendment
will eliminate the obstacles to the finalization of land transfers in
title recovery cases. This is important because about one-third of the
remaining allotment cases are title recovery cases. Title recovery
cases are those where the allotment lands were erroneously conveyed by
BLM to the State or Native Corporations. In these cases, BLM first
determines if the allotment is valid, which means BLM determines if the
case file contains sufficient evidence of the applicant's use of the
claimed land. If so, BLM sends a letter requesting the land be
reconveyed but in many cases, years have elapsed since the letters
requesting reconveyance were sent and no action has been taken since.
Moreover, years are added to title recovery cases because many cases
require hearings under existing law.
Recovery of land required: The amendments reflect the
government's obligation to recover the land when the allotment
is valid and the land was erroneously conveyed.\23\ To provide
additional discretion to not recover allotment lands will only
create more obstacles because even if the government exercises
its Section 301 discretion and fails to recover the allotment
land, a cloud will remain on the title. In addition, an
allotment applicant could still initiate litigation to recover
title.
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\23\ See, Aguilar v. United States, 474 F.Supp. 840 (D. Alaska
1979).
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Valid existing rights: Currently, allotments that are
legislatively approved are subject to valid existing rights if
such rights were initiated prior to the commencement of use of
the allotment. Allotments are not subject to existing rights if
the existing rights were initiated after use of the allotment
began. On the other hand, such rights are routinely reserved in
Settlement Agreements that allotment applicants must sign
before the State or Corporations will agree to reconvey the
land. There are many unreconveyed allotment cases that have sat
idle because of the interests in the allotment claimed by the
State or Corporations. Section 301 does nothing to eliminate
the current stand off.
Settlement Agreements: Before the State or Corporations
agree to reconvey allotment land, it requires applicants to
sign settlement agreements. Many of these agreements unfairly
reserve interests in the allotment. These reserved interests
were not initiated first and therefore are not interests that
could legally be justified. In some cases, the reconveyance
documents reserve even more interests to the State or
Corporations. The State interprets Title 38 of the Alaska
Revised Statutes as requiring reservations of certain interests
even when those interests are legally unjustified under federal
law.
Legislative approval: Legislative approval will remove many
of the delaying obstacles from the title recovery cases. There
are numerous allotment applications which now require lengthy
and costly adjudication only because ANILCA 43 U.S.C. Sec. 1634
(a)(4) requires it for lands conveyed to the State and lands
selected or tentatively approved to the State or Corporations.
Excluding title recovery cases from the legislative approval
provisions of ANILCA has been ineffective, causing only delay,
inaction, and even defiance in some cases where the State and
Corporations have overtly refused to reconvey.
Alternative dispute resolution (ADR): Continuing to require
lengthy allotment hearings will not allow the goal of
finalization for land transfer to be reached for many years.
However, if ADR was part of the title recovery process prior to
legislative approval, in many cases the valid interests of the
State or Corporation could be settled. ADR could eliminate time
and costs in title recovery cases.
Direct conveyance from the Corporation to the applicant:
Allowing Native Corporations to directly reconvey the allotment
land to the applicant will save time and money. It will also
allow the Corporation and the applicant more flexibility in
resolving land conflicts because the amendment allows the
applicant to accept substituted land and/or cash compensation
in lieu of the allotment.
Reinstatement of Unlawfully Closed Applications: The amendment
provides for reinstatement of unlawfully closed cases in a timely and
fair manner. By federal court decision, a due process hearing on
factual issues is required before an allotment case can be closed.\24\
Yet there are cases that were closed without a hearing and remain
closed today. Those cases must be reinstated. Further, unlawfully
closed cases also include cases where the land was relinquished but the
relinquishment was not knowing or voluntary. In other words, some
relinquishments occurred under questionable circumstances. There are
other cases where BIA and others made errors in filling out legal
descriptions which had the effect of reducing the total acreage of an
allotment. Questionable cases must be reinstated even if only for the
purpose of investigation. However, BLM's policy as stated in its manual
is that it will not reinstate an unlawfully closed application on its
own initiative but instead requires a request from the applicant.\25\
Therefore, the first step in fixing the reinstatement problem is a
mandate to BLM to provide a report of allotment applications that were
or may have been unlawfully closed.
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\24\ See, Pence v. Kleppe, 529 F.2d 135 (9th Cir. 1976).
\25\ BLM's Native Allotment Manual, Section 7(a)(2) of Chapter
11(1991).
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The amendment requires BLM to provide to the public within 6 months
from the enactment of S. 1466, a list of all allotment cases that were
closed without notice and hearing. The amendment provides a 3-year
deadline from the date of BLM's published list of closed cases to file
with BLM a request for reinstatement. Once the three year deadline
lapses, BLM will have a finite number of cases to accept or deny
reinstatement and if other provisions of S. 1466 are amended these
reinstated cases should be final by 2009 or before.
Reconstruction of Lost Applications: The amendment to Section 305
allows the reconstruction of lost applications within a time frame that
ensures the 2009 goal will be met. It is obvious that land transfers
may never be final if the right to reconstruct lost applications does
not end, but it is unfair to abruptly end the reconstruction of lost
applications without any prior notice to allotment applicants who may
not know that their applications were lost. Thus, sufficient time with
notice must be given to allow Alaska Natives who may have lost
applications needing reconstruction. The amendment provides a 3-year
deadline for submitting reconstructed applications. BLM is required to
provide notice of the 3-year deadline to the Bureau of Indian Affairs,
Tribes, and others serving Alaska Natives. The 3-year deadline begins
to run from the date BLM first provides notice of the 3-year deadline.
Hearings and Appeals: Section 501 is amended to resolve the problem
of the delays at the hearing and appeal levels. The amendment also
prevents unnecessary duplication and excessive costs that now occur and
are certain to occur in the future under the new hearing and appeal
procedures contemplated by S. 1466.
Although the current hearings and appeals system adds years to many
allotment cases, the resolution of this problem should not unfairly
deprive allotment applicants' access to impartial hearings and appeals
decided by an appeals Board that has the expertise to decide allotment
issues such as the IBLA. It could take a new appeals body years to gain
the expertise necessary to issue competent appeal decisions.
Many Tribes in Alaska are capable and eager to assume the
Department's allotment hearings and appeals responsibility by
compacting or contracting in accordance with the Indian Education and
Self-Determination Act of 1975.\26\ The amendment provides for
compacting/contracting that would distribute among numerous Tribes the
hearings and appeals burden that the Department has failed to meet.
Moreover, the hearings would take place year round and be conducted by
Tribal Judges who already have knowledge of the allotment applicant's
culture and subsistence practices. In the compacts/contracts,
participating Tribes could agree to adopt as Tribal law the federal
regulations governing hearings and appeals.
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\26\ Pub. L. No. 93-638, 25 U.S.C. Sec. 450 et. seq.
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The current resources of the Department's Office of Hearings and
Appeals including the IBLA must be increased and the work expanded. The
amendment provides that the resources of OHA would be increased in
order to open an office in Alaska where administrative law judges would
be permanently assigned and conduct year round allotment and probate
hearings for cases where Tribes elect not to provide such service. In
addition additional funding is appropriated to the IBLA with a
directive that it be used to increase its staff for allotment cases
where Tribes elects not to provide such service.
Compacting or Contracting the Department's Responsibilities to
Tribes: The amendment allows Tribes to assume many of the allotment
responsibilities of the Department including BLM's adjudication
process, hearings, appeals and probate work. Contracting or compacting
such responsibilities to the Tribes will be consistent with aims of the
Self Determination Act and the trust responsibilities of Congress and
the Department. Having the Tribes assume the work will also remove many
of the delays to the finalization of land transfers because the burden
of allotment work will be distributed among many Tribal entities. The
Department of the Interior has had over thirty years to finalize
allotments as that work is not even close to completion. It is time to
give the Tribes the opportunity to do so.
Amending the Vietnam Veterans Allotment Act: 43 U.S.C. Sec. 1629g
is amended to provide that Alaska Natives who honorably served during
the Vietnam era be eligible for allotments of 160 acres of vacant
federal land. The goal of this amendment is to help make it possible
for all Alaska Natives who honorably served in the military during the
Vietnam War to receive allotments of land in Alaska. The numerous
restrictions in the current Act have defeated many of the applications
filed and even discouraged many from applying. For example, as of
December 1, 2003, BLM has rejected about 47 percent of the applications
filed under the Veterans Allotment Act.\27\
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\27\ Written communication from John M. Toms, Jr., BLM's Native
Veteran Allotment Coordinator, to Carol Yeatman, Supervising Attorney,
Alaska Legal Services Corporation, Native Allotment Program, dated
December 1, 2003.
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There are three major reasons why the current Veterans Allotment
Act needs to be amended. First, is the lack of federal land that is
available for veteran allotments; existing law severely limits what
type of land can be available for allotments. Presently, land available
for veteran allotments must be:
non-mineral, without gas, coal, or oil,
not valuable for minerals, sand or gravel,
without campsites,
not selected by the State of Alaska or a Native Corporation,
not designated as wilderness,
not acquired federal lands,
not contain a building or structure,
not withdrawn or reserved for national defense,
not a National Forest,
not BLM land with conservation system unit sites, (unless
the manager consents),
not land claimed for mining,
not homesites, or trade and manufacturing sites or
headquarters site,
not a reindeer site, and
not a cemetery site.
Further, these restrictions make it impossible for veterans in
Southeast Alaska to apply because as shown above, land in a national
forest is not available to veterans and most of Southeast Alaska is the
Tongass National Forest. This restriction prevents many deserving
veterans in southeast Alaska from obtaining allotments. The amendment
makes vacant federal land available for veteran allotments.
Second, the current law does not allow for the legislative approval
of veteran allotment applications. The amendment provides legislative
approval instead of the use and occupancy requirements veterans must
now meet. This provision is similar to the legislative approval
provision Congress made available to applicants of allotments who
applied under the Alaska Native Allotment Act. Legislative approval
will save time and money because it will eliminate the costly and
lengthy administrative adjudication of the applicant's use and
occupancy.
The third reason the law needs to be changed is that current law is
unfair to many deserving veterans that do not qualify even though they
honorably served their country during the Vietnam era. Many Alaska
Native veterans who served during the Vietnam era do not qualify for an
allotment under the military service time restrictions in the current
law. Only veterans who served from January 1, 1969 to December 31, 1971
are now eligible to apply for an allotment. However, the Vietnam era
covered a much longer time span. The ``Vietnam era'' is legally defined
as beginning August 5, 1964 and ending May 7, 1975. Veterans that
served during the ``Vietnam era'' from August 5, 1964 to December 31,
1968, and from January 1, 1972 to May 7, 1975 are excluded from getting
an allotment under current law. There are approximately 1,700 Alaska
Native Vietnam veterans that will get a chance to apply for an
allotment if this provision is enacted into law. Those 1,700 veterans
are now excluded simply because they bravely served their country a
little too early or a little too late.
Reinstatement of Allotments Closed Under the Shields Decision: The
amendment provides for reinstatement of applications that were closed
under the decision in Shields v. United States \28\ by allowing
ancestral use of certain allotments to meet the use and occupancy
requirements. Although this provision expands the current reinstatement
policy of the Department, this amendment provides basic justice.
Because most of the land throughout Southeast Alaska was withdrawn by
1909 and the federal government did not inform Native people about the
Allotment Act, few Alaska Natives in Southeast Alaska received
allotments. Reinstatement of the applications rejected under the
Shields decision adjusts this unfair distribution of land.
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\28\ 698 F.2d 987 (9th Cir. 1983).
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The Shields decision answered the question of whether Congress
intended to require allotment applicants to prove they personally
``used'' the land claimed in cases where the land had been withdrawn
for the Tongass National Forest before the applicant's birth or if
proof that the applicant's ancestors used the land was sufficient. The
argument that ancestral use met the ``use'' requirement was valid
because the word ``use'' was not defined in the Allotment Act or in its
legislative history. Unfortunately when a term or word used in a
federal statute is not defined by Congress, the courts allow the
agencies to interpret the word. That is exactly what happened with the
word ``use.'' The Department of the Interior interpreted the word
``use'' to mean personal rather than ancestral use and the courts
deferred to that interpretation. This amendment will not change the
language of the Allotment Act but instead will allow Congress to define
``use'' in a manner that merely differs from the Department of the
Interior's definition.
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. I urge this Committee to amend S.
1466 and in doing so, to protect the rights of Native allotment
applicants while eliminating many of the factors that now delay
finalizing allotment cases.
Senator Murkowski. Thank you, Mr. Thomas. We appreciate you
being here, taking the time to join us, and also for your very
specific suggestions. I think they are very helpful. We have
gone through your testimony and when we have an opportunity for
the questions, you will see that some of our questions are
directly related to those written comments. So thank you.
Mr. Thomas. Thank you.
Senator Murkowski. Mr. Mery, joining us as the senior vice
President, Lands and Natural Resources from Doyon, Limited in
Fairbanks.
STATEMENT OF JAMES MERY, SENIOR VICE PRESIDENT FOR LANDS AND
NATURAL RESOURCES, DOYON, LIMITED, FAIRBANKS, AK
Mr. Mery. Good afternoon. Thank you for the opportunity to
appear before you today and provide the views of Doyon, Limited
on S. 1466, the Alaska Land Transfer Acceleration Act.
My name is Jim Mery. I am the vice president for Lands and
Natural Resources at Doyon in Fairbanks. Doyon is one of 12
regional corporations established by the Alaska Native Claims
Settlement Act in 1971. We have over 14,000 shareholders. Our
land entitlement under ANCSA is about 12.5 million acres and it
is the largest of all of the 12 regional corporations.
Some 23 years later after the passage of ANCSA, millions of
acres still are not conveyed to Doyon. In fact, in the last 10
years, only about 150,000 new acres have been conveyed. This is
really not to put any blame on the BLM as such. It is just that
the way the process is designed today, it is broken. It needs
to be fixed. This is a major reason why we support S. 1466 with
certain improvements.
S. 1466 is a comprehensive approach to solve major
technical and policy issues that negatively affect
implementation of the Alaska Native Claims Settlement Act and
the Alaska Statehood Act. S. 1466 provides the needed framework
and Federal flexibility to resolve remaining land conveyance
matters.
I want to thank you, Senator Murkowski, your staff, a lot
of people in the Bureau of Land Management and the Interior
Department for pushing this matter forward. As Mr. Thomas
pointed out, it has taken an awful lot of work and
determination, energy, creativity I think to come up with some
of these solutions. We especially appreciate the work that has
been done subsequent to introduction of the bill last summer. I
think a lot of improvements have been made, a lot of technical
things. When you rolled out what we were trying to accomplish
and started thinking about them, some of the timing issues
needed to be changed a little bit, and the governmental folks
have been very helpful and have come up with a lot of good
ideas. We certainly hope that these improvements will work
their way into the bill in the near term.
I guess I want to point out that ANCSA land ownership and
solving some of our problems is really not a native-only issue.
It clearly affects the State of Alaska and you have heard some
of those comments in the past. Final land selections really
will be, in part, determined by what native corporations get.
Many of their selections are also our selections.
At the same time, you move to the refuges and the parks and
the Federal properties in the State. There is a lot of
uncertainty about wetlands that those people will, indeed,
manage ultimately because of the vast selections and inholdings
that native corporations have. And sorting all of that I think
will be of benefit to the management of the conservation units
as well.
A few provisions I will highlight very quickly.
Underselected native corporations. Several creative ways that I
think that that issue can be solved, including the elimination
of difficult to manage Federal inholdings that really are quite
close to some of these villages that are underselected. We have
got decades-old land withdrawals that need to be revoked that
serve no valid purpose today from our point of view. They
foreclose possible development of Federal land and diminish
similar opportunities on adjacent native lands.
The bill also sets a calendar to plan and establish final
conveyance priorities. Now, this is going to be difficult to
meet by both the Government and by the native corporations. It
is a lot of work to be done, but we think it is achievable.
Obviously, there is a lot of funding that is going to have to
come with this to help the Government do the things that they
want to do to be done in the time frames that they have set out
in the bill, but we do think it is achievable.
Finally, I just want to make a quick couple of comments
about some of the native allotment issues that are in S. 1466.
Finality of these longstanding land claims is also needed for a
number of reasons. First and foremost, it is the right thing to
do for the individual applicants and their families. Many of
these allottees have passed on since their applications were
made. And because so many of the pending allotments do involve
lands that are selected by the native corporations and the
State of Alaska, again clarity is needed.
I know I am running out of time, but a couple of other
comments. Funding is needed to process the pending
applications. There are a couple of thousand that are out
there. As Mr. Thomas pointed out very clearly, they are just
not moving through the system the way they should.
Then in the bill itself on their deadlines regarding
reinstated, reconstructed allotment applications, the timing on
that we just think is inadequate. I know there is some
discussion about extending some of the deadlines, and we think
that is very important.
But in closing I guess I want to say that S. 1466 does
provide an excellent for the Federal Government to fulfill
decades-old promises to Alaska Natives and to the State of
Alaska. Thank you.
[The prepared statement of Mr. Mery follows:]
Prepared Statement of James Mery, Senior Vice President for Lands and
Natural Resources, Doyon, Limited, Fairbanks, AK
Mr. Chairman and Members of the Subcommittee, good afternoon and
thank you for the opportunity to appear before you today and provide
the views of Doyon, Limited on S. 1466, the Alaska Land Transfer
Acceleration Act.
My name is James Mery. I am the Senior Vice President for Lands and
Natural Resources at Doyon, Limited (Doyon) in Fairbanks, Alaska. Doyon
is one of twelve regional corporations established under the provisions
of the Alaska Native Claims Settlement Act of 1971, which is often
referred to as ANCSA. Doyon represents over 14,000 members of Indian,
Eskimo and Aleut descent. Pursuant to ANCSA Congress granted to Doyon
the largest land entitlement of the twelve regional corporations, some
12.5 million acres spread out in numerous parcels throughout the vast
interior of Alaska. I have had the honor and privilege to work for
Doyon for over 20 years, and much of my time there has been directly
involved with ANCSA land selections and conveyances.
I come here this afternoon to tell you that S. 1466, with certain
improvements, is a much needed piece of legislation. I also want to
express my thanks to Senator Murkowski, her staff and Interior
Department officials here in Washington and back home in Alaska. S.
1466 is the result of hard work by them to identify problem areas, and
propose solutions that would indeed accelerate land conveyances in
Alaska, if the necessary funding is appropriated. Their initiative and
determination is commendable. ANCSA and the Alaska Statehood Act, both
subjects of the bill before you, are complex pieces of legislation.
Many attempts have been made over the years to make technical
amendments to fix unforeseen and changed conditions. In contrast, S.
1466 is a comprehensive approach to solve major technical and policy
issues that negatively affect the implementation and resolution of
these two acts of Congress.
S. 1466 is broad in scope. Several matters addressed in the bill
have no direct impact on Doyon as a Native corporation, and therefore
we offer no comment. A good example is Title I, which deals with State
of Alaska land selections and conveyances under the Alaska Statehood
Act. In contrast, how Native allotments are addressed in Title III does
impact Native corporations, the State of Alaska and the allotment
applicants. This is a matter that I will address later.
One straightforward way to demonstrate the need for S. 1466 as it
relates to Doyon as a Native corporation is to let you know that today,
some twenty-two years since the passage of ANCSA, over two million
acres of ANCSA land entitlement have yet to be conveyed to Doyon. It is
probably impossible to measure what economic opportunities may have
been lost or diminished because of this delay. But I am not here today
to complain about the past. We are concerned about making the best of
the future.
I also think it is important to note that the lack of certainty
over final ANCSA land ownership patterns is not a Native only issue. In
so many situations, the unresolved land conveyances and related
ownership patterns of ANCSA village and regional corporations have also
produced negative side effects on State and federal land managers.
Until Native land conveyances are resolved, the State is unable to
finalize many of its Statehood Act land selections. This is because the
State has often selected some of the same lands selected by Native
corporations, although the Native selections have priority. Also,
ultimate federal ownership in such places as National Wildlife Refuges
and National Parks remains uncertain because of incomplete ANCSA
conveyances.
S. 1466 provides the framework and needed federal flexibility to
resolve Native corporation and State of Alaska land conveyance matters.
Subsequent to the introduction of S. 1466 last summer, I attended
several meetings with federal officials and other representatives of
Native corporations to discuss the bill. Through this open and
collaborative process a number of needed technical improvements to
Native corporation provisions in Title II, Title IV and Title VII have
been addressed. It is our expectation that these changes will work
their way into the current bill.
I will focus for a few moments on a few of the important pieces of
S. 1466. The bill addresses the significant problem of under-selected
Native corporations, those that do not have land selections sufficient
to meet their ANCSA land entitlements. The bill makes available new
lands and re-categorizes other ANCSA selected lands under Sections 201-
203, 208 and 210 in order for the federal government to satisfy its
obligations to these corporations. And as a side benefit, some small
federal inholdings that are difficult to manage can be eliminated.
Section 209 revokes ancient land withdrawals on BLM lands that serve no
valid purpose today. Many of these withdrawals are adjacent to Native
corporation lands with development potential. The inability to gain
access to the adjacent withdrawn lands has proven to be an impediment
to exploration of Native lands. Sections 401-403 set an aggressive
calendar of events relating to the establishment of plans to set new,
final ANCSA conveyance priorities. This will be a large undertaking by
the BLM and Native corporations, but the timeframes can be met. The
bill provides a fair back-up plan for those corporations that do not
meet the deadlines.
The thorniest provisions of S. 1466 deal with the treatment of
Native allotments in Title III. Because thousands of current allotment
applications conflict with Native corporation and State of Alaska
selections and conveyances, a path to final adjudication of
applications is needed. From our perspective there are three major
components that must be addressed: accelerated adjudication of existing
allotment applications, reinstatement of previously closed allotment
applications, and acceptance of reconstructed applications. No
provisions of Title III directly address pending applications and the
dire need for adjudication funding. Title VII authorizes appropriation
of such funds as necessary to carry out the purposes of S. 1466. I
certainly hope that at a minimum the legislative history of this bill
will reflect an intention to address this aspect of needed funds. Just
as there are Title VI deadlines imposed on the State of Alaska and
Native corporations, there are deadlines proposed in Title III. The
Title III deadlines are designed to bring finality to possible
reinstated and reconstructed allotment applications. The open question
here is whether or not there should ever be a closing date on these
applications, given the circumstances that created this situation. At a
minimum, more time is needed than is currently provided for in the
bill.
In closing, I want to note that I am here today representing only
Doyon, Limited. Alaska Natives, their corporations and tribes are a
diverse group of people with many common interests, but they often hold
differing opinions on a wide range of topics. For that reason, I
respectfully request that the record be held open for two weeks to
allow submission of additional written testimony.
Thank you and I would be pleased to try to answer any questions.
Senator Murkowski. Thank you, Mr. Mery.
Next let us go to Mr. Russell Heath, executive director of
Southeast Alaska Conservation Council out of Juneau. Welcome.
STATEMENT OF RUSSELL HEATH, EXECUTIVE DIRECTOR,
SOUTHEAST ALASKA CONSERVATION COUNCIL, JUNEAU, AK
Mr. Heath. Thank you, Madam Chairwoman. I and SEACC
appreciate the invitation to testify before the committee. The
Southeast Alaska Conservation Council is a coalition of 18
conservation groups in southeast Alaska. We have member groups
in 14 different communities there stretching from Ketchikan to
Yakutat.
For the record--and we would like to make this very clear--
SEACC supports the full and rapid conveyance of lands to both
the State and the ANCSA corporations, but we have three
principal concerns with this bill, concerns that I think we
will share with others who do not directly benefit from it.
Our first is the threat to the public's right to comment
and to be involved in decisions relating to public resources.
We see this threat in the bill in sections 106 and 206 which
seem to give direct decision-making powers to the Secretary of
the Interior. It is not clear to us how the current public
process is broken or what has happened in the last 20 or 30
years of this process to either unduly hinder or to frivolously
delay land conveyances. We are not sure what needs to be fixed
here.
Furthermore, we are concerned that in reducing
opportunities for public involvement, it actually will risk
slowing future conveyances. When residents and local
communities learn that land that they have depended on for
their livelihoods for hunting and fishing, for their recreation
have suddenly been transferred out of public and into private
ownership, they are going to be angry. They are going to be
upset. And when Alaskans get angry, they get political. Witness
the anger that is happening in south central Alaska right now
over coal bed methane. So that is one of our concerns.
A second concern is that S. 1466 seems to arbitrarily
increase the entitlement of the ANCSA corporations.
Specifically, Sealaska will get approximately 28 percent more
land than BLM thinks it is entitled to. And one of our concerns
is that by diminishing public involvement, by increasing
entitlement, you are creating a perception that this bill is
providing special benefits for special interests at the expense
of the public.
And our final concern is we are not certain that it is
going to solve the problem. As the previous two testifiers have
mentioned, one of the key problems with the speed with which
land has been conveyed is the lack of resources. The more
resources that BLM has means the more surveyors, the more
lawyers, the more land experts they have available to put on
the problem. So resource is a key issue.
Another of our concerns is that reopening ANCSA,
particularly reopening it in such a way that it looks like
certain interests are getting another bite at the apple by
these increased entitlements, many create a political
controversy in that other people who are involved with ANCSA
will also want that second bite of the apple. And that
political controversy may in the future further delay land
conveyances.
Senator, SEACC is on the ground all through southeast
Alaska. We have members in each community. Our staff travel the
area continually and we talk to everybody, loggers, fishermen,
business people, city officials, and certainly other
conservationists. One of the things that we are hearing down
there is that this bill could be very controversial, perhaps as
controversial as the Cape Fox land transfer in Berners Bay. I
offer, just as evidence, this sheet of letters, municipal
resolutions, and letters to the editor that people in the
southeast have written opposing S. 1466.
Thank you.
[The prepared statement of Mr. Heath follows:]
Prepared Statement of Russell Heath, Executive Director,
Southeast Alaska Conservation Council, Juneau, AK
My name is Russell Heath, the Executive Director for the Southeast
Alaska Conservation Council (SEACC). I would like to thank the Chairman
and members of the Subcommittee for inviting us to testify. 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.
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 and held
a field hearing in Anchorage, Alaska on August 6, 2003. SEACC submitted
written testimony at this field hearing. On Thursday, February 5, 2004,
we received draft amendment language for S. 1466. Like the original S.
1466, several sections in the Draft Amendment raise serious concerns
because they go far beyond this bill's objective of bringing closure to
the land entitlement process in Alaska and raise a number of
significant environmental concerns and questions. As presently written,
the bill is more likely to delay land transfers further instead of
expediting them as S. 1466 purports to do.
The scope and complexity of this bill is understandable because 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. We support
completing the land conveyance process under the Alaska Native Claims
Settlement Act (ANCSA), Alaska National Interest Lands Conservation Act
(ANILCA), the Alaska Statehood Act, and the Alaska Native Allotment Act
because certainty of land ownership benefits the landowners and the
public alike. However, as currently drafted, S. 1466 reopens complex
land entitlements previously settled by Congress, arbitrarily removes
lands from Alaska's national parks, refuges, and forests, and opens
millions of acres of public lands in Alaska to mining and other new
uses without the benefit of land use planning and public input. 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.
For the record, while our testimony focuses on the effect of S.
1466 on federal lands in Southeast Alaska, we share the same concerns
with the bill as expressed by the Sierra Club in their testimony before
you today.
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 some entitlement issues with the
State of Alaska and Native corporations. The process set up by Sections
106 and 212, however, is unacceptable 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, ANCSA, 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 must 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 cannot 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 mineral interest or
reversionary interest held by the United States or a nongovernmental
third party located in the State that is an isolated tract and that is
vacant, unappropriated and unreserved. It is unclear, however, from the
limitations on selections contained in subsection 105(b)(6) whether the
University may take mineral or reversionary interests within inholdings
in CSUs, or other critically important national interest lands
protected by Congress that are not CSUs. A prime example of these
latter lands on the Tongass National Forest are the legislated LUD II
lands protected in their natural state in perpetuity by Congress in the
1990 Tongass Timber Reform Act.
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. The Draft Amendment fails to respond to this important
issue.
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 on the basis of
population.
Instead of following the above process, Section 207 legislatively
specifies that a Regional Corporation would receive its percentage
share of 255,000 acres, regardless of the actual acreage the
corporation may have been eligible to receive. No basis is provided for
selecting this amount of specified acreage; it is significantly higher
than the BLM's estimate two years ago of 180,000-200,000 acres
remaining in the pool of entitlement lands to be conveyed to the
Regional Corporations.\1\ 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 that Sealaska, the Regional Corporation for Southeast Alaska,
could be conveyed from Tongass National Forest Lands. Sealaska's
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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The Draft Amendment simplifies this section by dropping the
alternative method provided in the earlier draft of S. 1466 that
allowed for Regional Corporations 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. It does not, however, address our
fundamental concern regarding the arbitrary increase in remaining land
entitlement to be conveyed to Regional Corporations. Consequently, we
strongly recommend that Section 207 be deleted.
Section 208 of the Draft Amendment allows the Secretary of Interior
to withdraw additional ``vacant, unappropriated and unreserved land''
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. As
amended, S. 1466 would exclude all Tongass National Forest lands,
except for those lands previously withdrawn under ANCSA for selection
by Native village corporations. See 43 U.S.C. Sec. Sec. 1615(a) and
1615(d). The amended language in section 208 is an improvement because
it safeguards not only CSUs on the Tongass, but 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. Unfortunately, this amendment fails to address our
fundamental concern regarding the arbitrary increase in remaining land
entitlement that Sealaska would receive on the Tongass National Forest
under Section 207.
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 is unreasonable.
The Draft Amendment language before the Subcommittee today fails to
respond to this critical issue. Although funding for BLM's land
conveyance program in Alaska has steadily increased the last several
years, President Bush's budget for FY 05 decreases this critical
funding level by $8.9 million dollars.
ALASKANS FEARFUL OF THE EFFECTS OF THE PROPOSED CHANGES UNDER S. 1466
Alaskans from Kotzebue to Gustavus have written letters to Alaskan
newspapers protesting the Alaska Lands Transfer Acceleration Act. Many
Alaskans resent the portions of the bill which would eliminate their
participation in land settlements that affect federal lands upon which
they depend. ``This denial of public process would be a serious setback
to the progress made over the past 30 years in allowing citizens to
play meaningful roles in major public land management decisions.
Federal lands in Alaska are essential for subsistence, commercial and
noncommercial use by all Alaskans and people need to be able to
influence these decisions.'' See Exhibit 3 (Anchorage Daily News,
Baker, Dec. 1, 2003).
Cutting the public voice out is especially unpopular because areas
slated for possible selection include favorite fishing spots like the
Situk River, rural hunting grounds like Sea Otter Sound, and other
places with high community values. The bill ``involves more parties
than spring break in Fort Lauderdale and cuts the public out of land
claims settlements that could include some of the most popular
recreation and hunting areas.'' See Exhibit 4 (Anchorage Daily News,
Brown, Nov. 9, 2003). ``Near my home in Tenakee Springs, valuable
fishing and subsistence hunting areas as Kadashan and Trap Bays would
be privatized. Juneau residents have been flocking to Tenakee for deer
hunting this month. If the best deer habitat is privatized and logged,
the deer hunting will suffer.'' Exhibit 5 (Juneau Empire, McBeen, 12/
29/03)
At their October 8, 2003 meeting in Craig, Alaska, the Southeast
Alaska Federal Subsistence Regional Council passed a resolution stating
that S. 1466 will substantially affect subsistence uses of Southeast
Alaska's public lands. See Exhibit 6 (relevant excerpts from hearing
transcript). As one board member stated, ``the concern here,
subsistence wise, is that when this land is exchanged it become private
land and therefore under current law it is not subject to subsistence
laws and regulations. So we have been accustomed to using this land for
many years. So my concern would be is there going to be any provision
to allow subsistence uses by non-shareholders in these areas . . . .''
Id. at p. 00467. He added that the Board should have had some
notification of the bill and the potential affect on subsistence.
``This will affect subsistence users so we want to be considered before
this happened . . . .'' Id. at p. 00472. The resolution further called
on Senator Murkowski to comply with ANILCA public notice and hearing
provisions to inform and educate the public about the effects of the
bill on subsistence activities. The resolution sponsor clarified that
``I realize that these transfers are going to take place, those
provisions in ANILCA are just mainly to ensure that public input is
provided in any decisions, and spells out the Regional Councils
[consultation] explicitly and also public testimony. And I think we
agree fully that the public should be part of this that's all I'm
asking for is that there be enough input into the process from affected
people, subsistence users, allotment users all of us have an interest
in this and it should not be just decided in the halls of Congress.''
Exhibit 6 at p. 00472.
Other Alaskans question the effect of the proposed changes on their
basic rights. ``The bill (S. 1466) contains language that would
terminate basic rights of Alaska Natives with pending allotments, like
the right to independent judicial review, and concentrate all the power
in the hands of the Bureau of Land Management and Department of
Interior. This is an issue of individual rights versus governmental
control.'' See Exhibit 7 (Anchorage Daily News, Nordlum, August 14,
2003).
Some Alaskans equate this bill with the highly controversial Cape
Fox Land Exchange (S. 1354) that proposes to privatize highly valuable
lands north of Juneau. ``Neither S. 1354 nor S. 1466 (Land transfer
Acceleration Act) adequately address existing community uses, including
recreation, subsistence, and habitat resources.'' See Exhibit 8 (Juneau
Empire, Grossman, Oct. 13, 2003)
ANCSA, ANILCA and the Statehood Act are immensely complicated land
bills. Couched in complex legal terms, and referencing numerous
sections of existing land law, S. 1466 is virtually unintelligible to
any reader lacking a background in Alaskan land law. One Alaskan wrote
``Senate Bill 1466 is so huge, so complicated and involves so many
parties that I doubt anyone understands its full effects.'' See Exhibit
9 (Anchorage Daily News, Moore, Nov. 7, 2003).
With their first-hand knowledge of the challenging issues addressed
by ANCSA and other Alaska land bills, Alaskans don't see S. 1466 as a
lasting solution to outstanding land claims. ``This bill, however,
cannot fail to be a complete catastrophe. It is an equation with too
many variables and too many unknowns for Sen. Murkowski to have a
prayer of solving it correctly or in Alaska's best interest.'' See
Exhibit 4. ``Alaska certainly has a lot of land allotment issues to
resolve, but Murkowski's land grab has no hope of settling them.'' See
Exhibit 10 (Juneau Empire, Lee, Nov. 25, 2003).
The City of Tenakee Springs passed a resolution that supports
finalizing outstanding land claims, but opposes S. 1466 because the
bill could allow withdrawal of valuable public lands which the
community depends on for small-scale logging, subsistence, commercial
and sport-fishing, recreation, and tourism. See Exhibit 11 (City of
Tenakee Springs, Alaska, Resolution 2004-15, Nov. 30, 2003).
When asked about potential new corporation selections near Hoonah,
the town's tribal government, the Hoonah Indian Association wrote ``the
target parcels involve areas that continue to be highly significant and
traditionally used by the Huna People . . . these areas are recognized
as highly valuable view-shed, which enhances tour and recreation
experience. We cannot allow continued industrial development to impact
areas that must be retained in their natural state for future
generations, our customary and traditional way of life and the benefit
of our local economy for the long term.'' See Exhibit 12 (Letter from
Dybdahl, Hoonah Indian Assoc. to Anderson, SEACC, Jan. 10, 2003).
The Edna Bay Fish and Game Advisory Committee raised concerns that
privatizing land near their communities ``could very well demolish a
lifestyle dependent on subsistence and access to nearby federal land.''
See Exhibit 13 (Letter from Gaither, Edna Bay Advisory Com. to Sen.
Lisa Murkowski, Sept. 22, 2003).
In their preliminary response to Sealaska Corporation's recent land
claims settlement and exchange proposal, the City of Craig raised
several concerns regarding privatizing large amounts of land around the
City. Among their concerns were assurance of ``a long term ample supply
of good quality timber for local sawmills and forest products
remanufacturing facilities.'' See Exhibit 14 (Letter from Watson, Mayor
of Craig to Wolfe, Sealaska Corporation, May 16, 2003). The City also
flagged the need to maintain access to nearby valued hunting and
fishing grounds. Though these concerns were raised relative to Sealaska
Corporation's specific proposal, they demonstrate the concerns of many
Alaskans to efforts to privatize public lands in Southeast. It is easy
to see how such negative effects could be exacerbated because section
207 of S. 1466 arbitrarily inflates the amount of land that Sealaska
and other Regional Corporations would get under ANCSA.
CONCLUSION
In conclusion, we respectfully request the Subcommittee to carry
out a deliberate and careful scrutiny of this complex piece of
legislation. 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. Without buy-in
from around Alaska, this bill will only cause acrimony, confusion,
controversy, and further delays in land settlements. This would destroy
the common consensus we have achieved since ANCSA & ANILCA were first
passed.
Thank you the opportunity to testify on this proposed legislation.
Senator Murkowski. Thank you.
Let us finally go to Mr. Jack Hession, Alaska
representative from the Sierra Club out of Anchorage. Welcome.
STATEMENT OF JACK HESSION, ALASKA REPRESENTATIVE,
SIERRA CLUB, ANCHORAGE, AK
Mr. Hession. Thank you, Madam Chair. My name is Jack
Hession. I am the senior regional representative for the Sierra
Club in Anchorage where I live. I certainly appreciate this
opportunity to comment on your draft amendment to S. 1466.
I would like to emphasize that we too support the goal of
the rapid conveyance of native and State land conveyances as
soon as practicable.
However, we cannot support this bill as revised at this
time. It would transfer land out of national conservation
system units and other public lands set aside by Congress for
national conservation purposes. It would increase entitlements
at the expense of public lands. It would give the Secretary of
the Interior unwarranted new authority, and it would reduce the
public participation in public land decisions.
Let me just give you two examples of how this bill would
affect the national conservation system units, by which I mean,
of course, national parks, refuges, wild rivers, wilderness
areas, and the land use designation II areas of the Tongass
National Forest.
Here is an example of the impact on the national wildlife
refuges. Those established prior to ANCSA--those were the
existing ones pre-1971--would suffer acreage reductions under
sections 201 and 203. This would upset a major compromise
reached on ANCSA that limited the village corporation
selections in these pre-ANCSA refuges to three townships or
69,000 acres. Section 201 gives the Secretary discretion to
simply waive that requirement. Section 203 would allow the
Secretary to convey the last whole section to a village
corporation in lieu of surveying the actual acreage within that
section. The impact of these two sections acting together could
result in a substantial amount of very valuable wildlife
habitat passing out of public ownership.
The next section 204 poses another threat to the pre-ANCSA
refuges. It would amend another key component of the ANCSA
compromise I just mentioned a moment ago by giving the
Secretary the discretion to convey the subsurface estate
between the three surface townships except Kenai and Kodiak to
the regional corporations. The reason for this prohibition,
Madam Chairman, is that it was designed to protect the surface
habitat of these refuges and the subsistence resources therein.
This was a major compromised reached in the settlement act of
1971 and we see no reason at this time to overturn it.
Nowhere is this prohibition more important than the Arctic
National Wildlife Refuge. Section 204 would give the Secretary
the discretion to convey the subsurface estate to the Arctic
Slope Regional Corporation. Section 213 would require the
Secretary to take this action. We think that these sections
could be interpreted to mean that the coastal plain under the
Kaktovik Inupiat Corporation lands might be leased to oil and
gas drilling and potential development. We do not want to take
that chance, Madam Chair.
Let me just give you one other example with respect to
major new authority. Section 209 would revoke section 17(d)(1)
public interest withdrawals of ANCSA and open them to all forms
of appropriation, including mineral laws, unless otherwise
segregated or reserved. Then the Secretary is given the
authority to classify or reclassify these lands or any other
BLM lands not otherwise segregated or withdrawn and open or
close these lands to any form of appropriation or use under the
public land laws, including the mineral laws, in accordance
with such classification.
Notice the sequence here, Madam Chair. First, the 17(d)(1)
public interest withdrawals are revoked and wide open to
various appropriation under the public land laws, including the
mining and mineral leasing laws. Then the Secretary is given
discretion to classify or not classify, as she may wish, these
very same lands. This sequence does not make sense and I think
poses a major threat to the integrity of the public interest
withdrawals, the BLM lands of Alaska, aside from the national
interest lands or the national conservation system units. That
is not an appropriate way to properly manage the public lands
in our view.
I chose these two examples because they will become
intensely controversial and we do not think they are necessary
to accomplish the purpose of this bill. There is no relation at
all to the goal of expediting the conveyances to the native
corporations and the State. So, therefore, it seems to me that
you could delete these easily and not jeopardize or potentially
jeopardize the passage of this bill.
Finally, Madam Chair, I go back to some legislation of
about 4 years ago when this committee settled the allotment
claims of the veterans of the Vietnam War era. As a basis for
that consideration, the committee had a comprehensive report
from the Department of the Interior that was extremely valuable
both to the committee and to the public in understanding the
issues and dealing with the legislation. Given that this bill
before us today is far more complex, lengthy, and potentially
controversial, I would recommend that you ask the Department
for a similar comprehensive report or perhaps the General
Accounting Office for such a report before you take any further
action on the bill. Given a detailed analysis of the impact of
this, I think we could all eventually come to agree on a bill
that would accomplish the purposes set forth. I think it would
be a valuable public service.
That completes my statement. Thank you very much.
[The prepared statement of Mr. Hession follows:]
Prepared Statement of Jack Hession, Alaska Representative,
Sierra Club, Anchorage, AK
Good afternoon, Mr. Chairman and members of the Subcommittee. Thank
you for the invitation to offer our views on to S. 1466, the Alaska
Land Transfer Acceleration Act. My name is Jack Hession, and I am the
Senior Regional Representative of the Sierra Club in the Alaska Field
Office of the Sierra Club in Anchorage, Alaska. The Sierra Club is a
national environmental organization of over 700,000 members with
chapters in every state.
SUMMARY
We support the transfer of remaining Native and State land
selections as soon as practicable. However, we oppose S. 1466 as
introduced and as revised by the proposed amendments of February 2,
2004, because it goes far beyond the changes in law, if any, that may
be needed to expedite the transfer of the remaining selections.
If passed, the bill would transfer land out of national
conservation system units and other public lands designated for
national conservation purposes, arbitrarily increase state and Native
land grants at the expense of the public lands, give the Secretary of
the Interior unwarranted new discretion, and reduce the public
participation in public land decisions. The bill also contains numerous
provisions unrelated to the goal of speeding up the land conveyance
process.
S. 1466 threatens the integrity of many national conservation
system units, including the Arctic National Wildlife Refuge and other
refuges established prior to ANCSA, such as Alaska Maritime, Izembek
and Yukon Delta. It also puts at risk sensitive public lands in the
Tongass and Chugach National Forests, and public hot springs.
S. 1466 is complex and controversial measure that proposes to amend
ANCSA, ANILCA, and the Alaska Statehood Act. We recommend that the
Subcommittee ask the Department of the Interior for a comprehensive
report on the Department's land conveyance program as the basis for
further consideration of this bill. In the course of settling certain
Alaska Native veterans' allotment claims in 1998, the Committee had the
benefit of a detailed background report from the Department that was
also very helpful to the public.\1\
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\1\ A Report Concerning Open Season for Certain Native Alaska
Veterans for Allotments, U.S. Department of the Interior, 1997.
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A report on the Department's conveyance program could assist the
Subcommittee and the public in considering whether changes in the law,
improvements in the administration of the program, increases in
funding, or perhaps all three could achieve the desired result. If
changes in existing law are shown to be needed, the report could serve
as the foundation for a bill that could have the support of all
affected parties.
The Subcommittee has time for an in-depth examination of the
issues. While there is a need to convey the remaining state and Native
land selections, there is no need to rush to judgment, especially if
the result of this haste would be to further delay the conveyance
process. According to the BLM, Native corporations have received title
by interim conveyance or patent to 37.5 million acres or 82 percent of
their 45.5-million-acre ANCSA grant. Similarly, the State has received
title by tentative approval or patent to 91 million acres or 87 percent
of its 104.5-million-acre Statehood grant.
Meanwhile, funding of BLM's land conveyance program has steadily
increased, from $33.9 million in FY 2000 to $41.9 million in FY 2004.
BLM's conveyance staff has increased, and the Bureau has brought in
specialists from the private sector and other agencies to help expedite
the remaining conveyances.
Should the Subcommittee seek a comprehensive report on the
conveyance process and possible solutions, it could in the interim lend
its support to an increase in funding for the BLM's conveyance program.
With more administrative and surveying capability, the BLM could step
up the yearly conveyance totals significantly. These increases in staff
and funding would go a long way towards reaching the goal of final
conveyances.
S. 1466 WITH REVISIONS OF FEBRUARY 2, 2004
Sec. 104. Effect of powersite reserves, powersite classifications,
power projects, and hot spring withdrawals
This section would transfer to the State certain public lands that
the State has selected (under the top-filing authority of ANILCA) and
that have not been available for state selection because they have long
been withdrawn for power-related purposes and retention of hot springs
in public ownership.
This section is not in the public interest. Even with the exemption
for conservation system units (CSUs) in the proposed amendments, this
section would dispose of valuable public lands and resources to the
State, no questions asked, in the complete absence of information and
data necessary to properly evaluate the State's request. Rather than
take a leap in the dark, the Subcommittee should require from the
Department an inventory, land status, and resource analysis of the top-
filed power-related and thermal springs withdrawals, as part of a
larger more comprehensive report, as recommended above, prior to
further consideration of this bill.
Thermal springs in Alaska were originally withdrawn early in the
last century because of their medical and public purposes, and they
remain features of the Alaska landscape cherished by Alaskans and
visitors alike. It's fair to assume that those springs in public
ownership outside CSU's and other federal reserves contain scientific,
recreational, wildlife habitat and aesthetic values that easily qualify
them for continued retention in federal ownership. For example, Upper
Selawik Hot Springs, one of the springs subject to Sec. 104, is near
the boundary of the Selawik National Wildlife Refuge and Selawik Wild
River. Along with Lower Selawik Hot Springs inside the refuge, it is a
critically important fish and wildlife habitat component of the Selawik
River and hence the Refuge.
Similarly, public land originally set aside for potential power
development may contain other values and resources not adequately known
or adequately recognized at the time of the original withdrawals. For
example, a withdrawn tract on BLM lands may be far more valuable as
part of an important salmon spawning river system than for power
generation purposes. As part of its land use planning process, the BLM
is required to evaluate rivers and river-lake systems on BLM lands for
eligibility as potential units of the National Wild and Scenic Rivers
System. Some of the existing hydropower-related withdrawals may be
located on rivers and streams that would qualify for inclusion by
Congress in the national system. A state takeover of these withdrawn
lands via Sec. 104 could disqualify the rivers as candidates for
potential addition to the rivers system.
Sec. 106. Settlement of Remaining Entitlement
This section would authorize the Secretary to enter into binding
written agreements with the State with respect to any aspect of its
remaining entitlement, including the exact number of acres remaining to
be conveyed to the State. As the amount of land remaining to be
conveyed is set in law, this limitless discretion given to the
Secretary is unjustified, particularly without any provision for public
comments on such agreements. We recommend that this section be deleted.
Sec. 107. Effect of Federal Mining Claims
This section would allow an owner of a federal mining claim to
voluntarily relinquish title to the BLM, provided the BLM transferred
title to the State. The BLM would avoid having to survey the mining
claim in order to exclude it from the land conveyed to the State.
Voluntary transfers of federal claims to the State have been going
on for years as part of the conveyance of state-selected lands to the
State. However, under the existing procedure, the land the State
acquires is charged against the State's entitlement. Sec. 107 waives
this requirement in some circumstances.
Sec. 107 could potentially transfer thousands of acres to the State
free of charge. According to the BLM, if all federal mining claims on
state lands were converted to state claims, approximately 80,000 acres
could be awarded to the State.
There is no justification for waiving the charge against the
State's entitlement, especially in light of the State's exceptionally
generous land grant. We recommend that the waiver be deleted.
Sec. 108. Land Mistakenly Relinquished or Omitted
This section would allow the State, with the concurrence of the
Secretary, to select or topfile land mistakenly relinquished or
erroneously omitted from a previous selection or topfiling.
In evaluating this proposal from the State, the Subcommittee needs
to know what lands the State proposes to now reselect or topfile. We
recommend that the Subcommittee ask the State to identify the previous
selections mistakenly relinquished or erroneously omitted, including
the precise location and amount of acreage involved. This data could be
part of a background report on the Department's land conveyance
programs and problems, as recommended above.
ANILCA closed the CSUs to new state land selections. Section 108
could be interpreted to apply to pre-ANILCA relinquished and omitted
land that was subsequently incorporated into the new conservation
system units. We recommend that the CSUs and other public lands
designated by Congress for conservation purposes be exempt from the
application of this section.
Sec. 201. Land Available After Selection Period
This section would allow the Secretary to waive the filing deadline
for Native village corporation selections in order to allow a
corporation with remaining entitlement to select federal lands not
available during the original filing period. Subsection (b) would allow
the Secretary to ``waive the 69,120-acre limitation for land within the
National Wildlife Refuge System for land conveyed pursuant to this
section.''
The limitation of three townships is a key component of a major
compromise reached in ANCSA over village corporation selections in the
pre-ANCSA refuges. Congress established that limitation in an effort to
balance Native claims with the national interest in these ``old''
refuges. We supported the compromise then, and do so now.
We recommend that the Subcommittee either delete this section or
remove the waiver of the 69,120-acre limit on conveyances within pre-
1971 refuges.
Sec. 203. Conveyance of Last Whole Section
This section would allow the Secretary to convey the next
prioritized section to a village or regional corporation, other than a
corporation in Southeast Alaska, if by doing so the corporation's
entitlement would be fulfilled. For example, if a village or regional
corporation could complete its land grant by selecting 120 acres in the
next section (one square mile or 640 acres) prioritized for selection,
it would receive the entire 640 acres for a net increase in its
entitlement of 520 acres. If a corporation's entitlement could be
fulfilled by the conveyance of 600 acres, the net increase in its
entitlement would be 40 acres.
The rationale for this proposal is that BLM could avoid the
existing requirement to survey ``down to the last acre'' to be
conveyed, convey the entire section instead, and thereby accelerate the
transfer of remaining selections.
However, this proposed shortcut would come at the expense of the
national interest in protecting the integrity of the national
conservation system units. In the national wildlife refuge system there
are 99 village corporations entirely within the refuges and 42 more
outside the refuges but having land selections within them. In the case
of the pre-1971 wildlife refuges, application of Sec. 203 would lift
the three-township ANCSA limitation discussed above.
According to the National Park Service, there are about 30 village
corporations with selections inside national park system units.
Sec. 203 thus has the potential for removing thousands of acres
from the refuges and parks. These potential deletions generally consist
of some of the most valuable land in the CSU's. In the national
wildlife refuges, villages are usually located in areas of the most
productive habitat. In the national parks the additional acreage
removed by Sec. 203 would likely be lowland wildlife habitat and
valuable public use areas.
It is not in the national interest to unnecessarily increase the
amount of non-federal lands within the national conservation system
units. Since ANILCA of 1980, federal land management agencies have
acquired private inholdings, some quite small, in CSU's at a cost of
millions of dollars in federal funds. Sec. 203 would undermine and
largely reverse this continuing effort.
For the foregoing reasons we recommend that Sec. 203 not apply to
units of the national conservation systems. We urge the Subcommittee to
find other means of expediting the final conveyances to those
corporations that have selections within the CSU's.
Sec. 204. Discretionary Authority To Convey Subsurface Estate in Pre-
ANCSA Refuges
Under the authority provided by this section, the Secretary of the
Interior could offer to the appropriate regional corporation the
opportunity to take the subsurface estate beneath the surface estate
owned by a village corporation in a pre-ANCSA national wildlife refuge,
except the Kenai and Kodiak refuges. These refuges include the Arctic
National Wildlife Refuge and its coastal plain, Alaska Maritime,
Izembek, and Yukon Delta.
This section proposes to do away with another of the key components
of the compromise reached in ANCSA over proposed Native village
selections in the existing refuges. (We discussed another component,
the 69,120-acre limitation, under Sec. 201, above). Congress precluded
regional corporation selections of the subsurface estate because it
recognized that potential development of that estate was incompatible
with the national interest in protecting the surface wildlife habitat
and subsistence values. This is why Congress also required the surface
estate to be managed in accordance with the rules and regulations of
the refuge, i.e., required that any surface development be compatible
with the purposes of the refuges.
We oppose Sec. 204 and recommend that it be dropped from further
consideration.
Sec. 207. Allocation Based on Population
This section provides that in order to complete its Sec. 14(h)(8)
entitlement, a regional corporation shall receive its percentage share
of an additional 255,000 acres above any acreage allocated as of
January 1, 2003. However, the BLM's most recent estimate of remaining
14(h)(8) entitlement is 180,000 to 200,000 acres. How and why the
figure of 255,000 acres was chosen remains a mystery.
In any event, Sec. 207 would have an adverse effect on the Tongass
National Forest by increasing the amount of land conveyed to the
Sealaska Corporation for clear-cut logging, mining and other
development.
We recommend that this section be deleted.
Sec. 209. Bureau of Land Management Land
This revised section revokes the Sec. 17(d)(1) withdrawals of ANCSA
and opens the lands to all forms of appropriation under the public land
laws, including the mineral laws, unless otherwise segregated or
withdrawn. Certain public lands set aside by certain public land orders
would continue to be unavailable for conveyance to the State.
The section also authorizes the Secretary to classify or reclassify
any land in Alaska administered by the BLM not otherwise segregated or
withdrawn, and to open or close such lands to any form of appropriation
or use under the public land laws, including the mineral laws, in
accordance with such classifications.
We are strongly opposed to this wholesale opening of tens of
millions of acres of public lands to mining, mineral leasing, and other
uses before land use plans have been put in place. This action would
render meaningless the land use planning requirements of the Federal
Land Management and Policy Act (FLPMA) and would circumvent the public
participation in public land use decision that goes along with land use
planning. This provision is also completely irrelevant to the purpose
and goals of S. 1466.
We recommend that this section be deleted.
Sec. 212. Settlement of Remaining Entitlement
This section would authorize the Secretary to enter into binding
written agreements with Native corporations with respect to any aspect
of their remaining entitlement, including the exact number of acres
remaining to be conveyed to the corporation. This is a parallel
provision to Section 106, and we oppose it for the reasons discussed
above.
As proposed in Section 212, the Secretary's broad discretion to
negotiate with Native corporations raises the specter of closed-door
arrangements that could jeopardize the national conservation system
units, Land Use Designation II areas in the Tongass National Forest,
and other sensitive National Forest lands.
BLM Alaska explained the rationale for its proposed new authority
in Sections 106 and 212 as ``authority that provides negotiated
resolution,'' including ``authority for village and regional
corporation, state, and federal agencies to negotiate substitution of
new lands for existing claims and land exchanges related to Native and
state entitlements.'' We oppose the grant of any new authority unless
it can be shown that existing authority is insufficient to accomplish
the goal of the bill. There may be a need for relatively minor
adjustments to existing authority, but that case has not been made.
For example, Section 212 would give the Secretary discretion to
waive the requirement for public use easements under Sec. 17(b) of
ANCSA covering the eight million acres remaining to be conveyed to
Native corporations. This waiver authority could accelerate the
conveyances, but it would come at the expense of the public interest in
retaining access to public lands. We oppose this proposal.
Sec. 213. Conveyance to Kaktovik Inupiat Corporation and Arctic Slope
Regional Corporation in the Arctic National Wildlife Refuge
This section directs the Secretary to convey thousands of acres of
surface estate to the Kaktovik Inupiat Corporation and the subsurface
estate to the Arctic Slope Regional Corporation (ASRC) within the
coastal plain of the Arctic National Wildlife Refuge. The section,
which does not contain an explicit guarantee that oil and gas drilling
and development will continue to be prohibited on these lands, is the
latest attempt by drilling proponents to find a back-door way into the
Arctic Refuge. Conveying more subsurface land out of the refuge can
only be intended to add momentum to the ill-advised and unpopular
effort to develop the coastal plain of the Arctic Refuge for oil and
gas. We therefore urge the Committee to remove this section from the
bill.
The coastal plain lands at issue are an integral part of the
original refuge established in 1960, and therefore were covered by
ANCSA's provisions precluding conveyances of subsurface estate to the
Regional Corporation. Despite this, in a 1983 Agreement known as the
Chandler Lake Exchange, former Interior Secretary James Watt and the
Arctic Slope Regional Corporation agreed to a land exchange that
allowed ASRC to acquire the subsurface estate within the refuge,
subject to a prohibition on development under the terms of the
Agreement and Section 1003 of ANILCA.
The General Accounting Office (GAO) found the1983 exchange ``not to
be in the government's best interest,'' and it also recommended that
negotiations on another controversial exchange be discontinued.\2\ GAO
said of the 1983 exchange, ``Interior used its broad authority to avoid
procedural requirements otherwise applicable to land exchanges, such as
full public review, preparation of environmental impact statements, and
disclosure of the fair market value of the land and interest
exchanged.''
---------------------------------------------------------------------------
\2\ General Accounting Office. October 6, 1989. Federal Land
Management: Chandler Lake Land Exchange not in the Government's best
interest. RCED-90-5; General Accounting Office. September 29, 1988.
Federal Land Management: Consideration of proposed Alaska land
exchanges should be discontinued. RCED-88-179. p. 18-19.
---------------------------------------------------------------------------
In 1988, Congress passed an ANILCA amendment that prevented the
Interior Department from executing further exchanges in the Arctic
Refuge coastal plain without Congress's express approval. The House
Committee report said the prohibition was ``to permit Congress to
decide the future status of the coastal plain on its merits. . . .
``Megatrades'' or any other exchanges, as well as any other prospective
conveyances involving lands or interests in lands within the coastal
plain may only be implemented after congressional review and after
securing legislative approval by an Act of Congress.'' \3\
---------------------------------------------------------------------------
\3\ H.R. Rep. No. 100-262, Part 1 at 7-8 (1987). Cited by Baldwin,
2002, p. 7-8.
---------------------------------------------------------------------------
Congress concluded that the Interior Department's exchange would
pre-empt its authority to decide the fate of the Arctic Refuge, while
the Department ``continued to assert it had the complete and unilateral
authority to trade away oil and gas rights . . . without Congressional
Approval.'' \4\ Sec. 213 of S. 1466 overrides the Congressional
amendment (ANILCA sec. 1302(h)(2); 16 U.S.C. 3192(h)(2)) to allow
poorly defined future conveyances, contrary to Congress's resolution of
this conflict with the Department in 1988.
---------------------------------------------------------------------------
\4\ Baldwin, Pamela. August 22, 2002. Congressional Research
Service Memorandum. Arctic Slope Regional Corporation lands and
interests within the Arctic National Wildlife Refuge. 9pp.
---------------------------------------------------------------------------
We oppose section 213 and recommend that it be deleted.
Sec. 302. Title Recovery of Native Allotments
This section would allow any Native corporation or the State to
deed back to the United States land encompassed by an allotment claim.
The Secretary would then convey the same land to the allotment
applicant if the applicant agrees to accept it.
Subsection (b) would amend existing law by giving the State or a
Native corporation authority to determine whether the applicant is
legitimately using the land. In effect this allows the State or a
Native corporation to determine whether the allotment claim is valid or
not. The authority to determine validity should remain solely in the
hands of the federal government. We recommend deletion of the phrase
``or attestation of the State or Native Corporation as to the use of
the land by the applicant.''
Subsection (c) would allow a Native corporation under Sec. 303 to
offer substitute land to the claimant. Sec. 303 would allow the
relocation of Native allotments to land ``selected and irrevocably
prioritized by or conveyed by interim conveyance or patent to a Native
Corporation. . . .''
The problem here is that ``irrevocably'' prioritizing a land
selection does not guarantee that the land will ultimately be conveyed
to the Native Corporation. An allotment relocated to such a selection
could eventually create an isolated island of private land within a
national conservation system unit, after excess selections--including
excess prioritized selections--drop away. To guard against this
possibility, Native corporations' relocations of allotments within
CSU's should be limited to lands actually owned by Native corporations,
i.e., interim conveyed or patented land.
Sec. 303. Relocation of Allotments on ANCSA Lands
This section is discussed in connection with Sec. 302, above.
Relocation of allotments within CSU's should be limited to land interim
conveyed or patented to the Native corporation.
Sec. 304. Compensatory Acreage
This section provides for compensatory acreage to the State or a
Native corporation when its entitlement is reduced by actions taken as
a result of Sections 301, 302, and 303 having to do with Native
allotment adjustments. Subsection (c) of Sec. 304 provides the
Secretary with ``sole and unreviewable discretion'' to make additional
land available to compensate a village corporation.
It is not clear whether this discretion would extend to withdrawing
federal lands within CSU's for compensation purposes. We recommend that
the Secretary's withdrawal authority be limited to lands outside CSU's
and outside other lands designated by Congress for conservation
purposes, such as Land Use Designation II areas in the Tongass National
Forest.
Sec. 307. Amendments to Section 41 of ANCSA
This section would allow allotment applications by certain Native
veterans of the Vietnam War Era to include land ``valuable for deposits
of sand or gravel'' except for allotment claims within units of the
national park system.
We appreciate the recognition that it is important to avoid
potential sand and gravel operations on private lands within units of
the national park system. It is equally important to avoid such
development in other national conservation system units as well. We
recommend that Sec. 307 exempt all units of the national conservation
systems from application of this section.
Sec. 501. Alaska Land Claims Hearings and Appeals
This section would establish a new hearings and appeal process ``to
decide appeals from Alaska land transfer decisions issued by the
Secretary.'' .
Currently, the Interior Board of Land Appeals (IBLA) hears appeals
of decisions on Alaska land transfers. We question the need for a
wholly new and duplicative appeals apparatus for Alaska. We also object
to the exclusion of the public from the process of developing
regulations governing the new appeals process. In lieu of Sec. 501, the
Subcommittee could lend its support for additional IBLA administrative
law judges and staff adequate to expedite the resolution of pending and
future appeals. We recommend that it do so.
CONCLUSIONS
We agree that the remaining Native and state land selections should
be conveyed as soon as practicable. Completion of the land transfer
process is obviously in the Native and State interest; it would also
benefit the public. Millions of dollars in federal funds now devoted to
the conveyance program could be used for other vital public land
management functions, and lands now tied up in over-selections could be
managed in accordance with the land use plans of the federal agencies.
We recommend that the Subcommittee seek a comprehensive report on
the status of the conveyance program, its bottlenecks and other
problems, and what administrative and statutory changes would help
expedite the remaining land transfers.
S. 1466 as revised adopts short cuts in existing procedures and
changes in existing laws that could result in controversy, potential
litigation, and further delays in the conveyance program. Many sections
of the bill have the potential to harm the national conservation system
units of ANILCA. Other sections would reduce public review and
participation in public land decisions. Still others would grant
unnecessary new administrative discretion to the Secretary. We urge the
Subcommittee to avoid these potential pitfalls as it drafts a final
version of this bill.
We stand ready to cooperate with the Subcommittee in an effort to
craft a bill all interested parties can support.
Thank for this opportunity to present our views.
Senator Murkowski. Thank you. Thank you all for your
testimony. Thank you for joining us.
I do have quite a lengthy series of questions that I have
for each of you. In the interest of time, I am just going to
ask a few and you will be receiving the rest of our questions
in written format, and we will look forward to your responses.
Obviously, a disagreement on both ends of the table here in
terms of whether or not the State gets any additional land
entitlements out of this bill. I believe it was you, Ms.
Rutherford, that stated very clearly--and I think you
enunciated your words--that in fact, the State does not get any
additional land entitlement out of the bill. It was suggested
that through this legislation, we would be essentially
arbitrarily increasing the entitlement were I believe the words
that Mr. Heath used.
Can you clarify for me, does the State get any additional
land entitlement out of this legislation? And, Mr. Bisson, if
you want to join Ms. Rutherford, that would certainly be
appropriate.
Ms. Rutherford. Madam Chairman, the State of Alaska does
not get any additional entitlement. First of all, our
entitlement was fixed at 35 years after Statehood, which was
January 2, 1994. So this does not provide any additional
acreage.
There is the potential for some additional acreage
associated with Federal mining claims. If existing Federal
mining claims were terminated or abandoned at some point in
time, the land would convey to the State, and this bill does
provide that the Bureau of Land Management does not have to
survey out the donut holes. But that is the top end. That is
the highest it could possibly be. We think 50,000. And the odds
are that that would actually be a much smaller acreage figure.
And that is simply because it would eliminate the very costly
process of surveying out the donut holes as a responsibility by
the Bureau of Land Management.
Senator Murkowski. So what you have said is at the top end,
there could potentially be an additional 50,000 acres that
would not be subject to survey.
Ms. Rutherford. That would not be subject to survey and
would not be then an acreage calculation against our
entitlement. That is correct, but that is the top end estimate.
Senator Murkowski. Mr. Bisson, can you speak to that?
Mr. Bisson. Yes, I can. Senator, this has to do with the
inefficiency of spending from $2,000 to $13,000 to survey each
small, isolated mining claim within a large block of State-
selected land. After the legislation is passed, I think what it
will do is allow us to pass title without surveying these
mining claims and create an opportunity that if at some point a
Federal mining claimant forgets to file their paperwork or the
claim becomes null and void, the land would go to the State. So
it creates a small opportunity for some additional lands to go.
If all of the mining claims that are currently in the areas
that the State would get were to go that way--and they will
not, but if they were--the entitlement amounts to eight-tenths
of 1 percent of the entire land transfer package. It is a very
small amount of land, but it saves us an awful lot of money.
Senator Murkowski. Then how do you respond to the
suggestion from Mr. Heath that Sealaska would potentially be
able to receive additional entitlement from the State and
somehow be--these will be my words, Mr. Heath--unjustly
enriched or the door will be open for them and not for others?
Mr. Bisson. There is a remaining entitlement in the
14(h)(8) category of ANCSA that needs to be calculated at some
point when all of the remaining lands are transferred. What
this provision would do is set a cap--which is what I think we
have come to agreement on. We estimate that is what will be
necessary to close out this entitlement.
Sealaska will be entitled to 22 percent of that cap. The
other corporations--I think there is a total of 10
corporations--will be able to obtain land through this
entitlement as well. We do not see it as an increase in
entitlement. It is a way for us to bring this particular
category to closure, and Sealaska will get its fair share and
no more.
Senator Murkowski. This is following up on the additional
land entitlement then. Does the bill enable the State to
receive any additional lands within Federal conservation system
units?
Ms. Rutherford. Madam Chairman, the State does not receive
any additional conveyance within any of the Federal CSU's.
Senator Murkowski. Are there any existing valid selections
in CSU's?
Ms. Rutherford. Madam Chairman, there are but just a very
few. I am only aware of two selections within the national
wildlife refuges and a few within the national parks. In each
case the park or the refuge was established after the State
selected the land, and again, the validity of those selections
is not affected by this legislation nor is any entitlement
expanded.
Senator Murkowski. Another concern that was raised both by
Mr. Hession and Mr. Heath was that somehow or other we are
diminishing the public input or the opportunity to comment. We
did have some discussion about this earlier with Director
Clarke, but in terms of the opportunity for an individual to
participate, to object, does this legislation reduce in any way
that opportunity to participate?
Mr. Bisson. I think the provision that they have spoken
about that they are most concerned with is section 209 which is
the provision that would remove the D(1) withdrawals and permit
the lands to be able to be used for multiple-use management
purposes. I think that is the one they are most concerned
about. Frankly, that provision is necessary.
All we are trying to do--and we have been working with
committee staff and will continue to do so on this--is to
expedite the process of being able to manage those lands like
we would any public lands in the United States. If we have to
go through a very long, time-consuming process to get there,
those lands will not be available for us to provide
opportunities for various uses. So in that respect, that
legislation would automatically remove those withdrawals.
But the Secretary still has the ability through our land
use planning process to propose to withdraw lands that are
sensitive and that should not be developed for purposes that
might be inappropriate for the values that are there. We have
other processes in place for public involvement on all the
decisions that we make on public lands. So we fully expect the
public would be engaged in any future decisions that we make on
those lands.
Senator Murkowski. It is your observation then that section
209 is necessary in order for full implementation of this
legislation.
Mr. Bisson. Yes.
Senator Murkowski. Just a quick question to you, Ms.
Rutherford, about the native allotments. Mr. Thomas in his
written testimony did speak to this and has indicated that the
State has protested many of the native allotments. I would like
you to address the reason why and essentially what the State's
role in dealing with the native allotments is and how the State
can basically make the process work better.
Ms. Rutherford. Madam Chairman, the State's role in dealing
with native allotments is primarily one of reconveyance. A few
hundred of the allotments are on State land that had already
been conveyed to the State of Alaska by the Bureau of Land
Management. When BLM determines that a valid native allotment
exists, we review the allotment and unless there is an
important public reason why it cannot accommodate the allottee,
we reconvey the land back to the Bureau of Land Management for
conveyance to the allottee.
We feel very strongly these allottees are our citizens, and
we make every effort to ensure that they receive what they are
entitled to. However, there have been instances where there is
an overriding public interest, public reason why we have
opposed certain reconveyances. So there are instances where we
have not accommodated, but we try to make that extremely rare
and in most instances we, working with the Federal Government,
are able to either find substitute lands or actually reconvey
the land back to BLM for conveyance to the allottee.
Senator Murkowski. Mr. Thomas, in your written testimony
and in your spoken comments, you alluded to certain changes and
you go into more detail in your testimony. I think that I heard
you say that without these changes, you did not think that we
would be able to keep the goal that we have set of completing
the conveyances by the year 2009. In looking through them, it
looks like there are a lot of changes, and I guess I want to
understand if you feel that given the changes that you are
suggesting, whether we can still meet our goal.
Mr. Thomas. It is our collective judgment, yes. Now, having
said that, there are some things that even we are proposing
that will add time. For example, with the appeals process,
there is some time that would be added to the process.
I think that the other, I guess, caveat here--you heard
from the State where their objections are and we agree with
those. Now, it is the other blanket objections, that when you
have 6,000 objections and very many of them are pretty much the
same reasons, I think that those can be handled somewhat as a
class and not have to be dealt with each step along the way
because when you have a protest, there is a process by which to
deal with that protest which is very involved and requires a
lot of proof on one side or the other. So we have got to get
past that because it is holding up everybody. It is bogging
down the system from our perspective.
On those isolated cases that were spoke of, we have no
problem with that. We are still working through many of those
things where there are overlapping claims or filings. She is
right. We do work out those pretty well. It is just that
backlog is really creating a big problem for everybody, and we
feel that some of them are really just there to be there.
Senator Murkowski. One of the suggestions that you have
proposed is actually contracting out some of the allotment
workload to natives.
Mr. Thomas. Right.
Senator Murkowski. I do not know what the rest of the panel
might think about that as a proposal, but I would imagine that
there are many of your friends and neighbors that probably have
more working knowledge about what is going on within the
allotment process than most other folks would ever even dream
of just because they have been living, they have been waiting
generations to get their allotments through. So they probably
have a pretty good knowledge of what is going on, maybe not
quite how to fix the problem.
Mr. Thomas. Yes, you are right. I think to move things
through the system, there is some value to that suggestion, but
I must make it ultimately clear that we do not have the
authority to sign off on a final certification, and I do not
want to confuse the issue by suggesting that. We understand
that totally. But right now there are so many issues just not
going through the system and there is really no consequence for
not going through the system. I am not sure you can legislate
some of that stuff.
I think sometimes there needs to be a will to find the way.
As I pointed out in the pipeline situation, there was
definitely a will and they got it done. In our case there seems
to be a dragging of feet that I am not able to put my finger
on. I wish I could. Maybe more than just one finger.
I really think that there is a lot to what you said in your
opening comments. Why do we need legislation to do what you are
supposed to do? There are some things that can be cleaned up by
this legislation, we agree, and they are adequately addressed.
We make some minor adjustments, but there really needs to be
some discussion about getting the job done and doing it right.
Senator Murkowski. This goes to Mr. Heath's comment too, or
maybe it was Mr. Hession, about what actually needs to be
fixed. Where do we make that fix?
Mr. Thomas. Yes. We provided a lot of detail in here, and
hence the thickness of our testimony, and hope that there will
be some credibility given to that because we understand that
there is a goal way up here, but we feel that there need to be
little steps along the way to get there, not just here one day,
5 years later up here. You really have to pick away at the
detail and find out where the problem is, and some of these
amendments I believe address them.
Senator Murkowski. Mr. Mery, one quick question for you.
You have mentioned the amendments and your appreciation of how
far we have come since the bill was first introduced and just
kind of the ongoing work in progress. In terms of meeting our
2009 goal, what do you perceive to be the critical impediments
to reaching that?
Mr. Mery. Funding for the Bureau of Land Management I
think. There will be a lot of challenges within the native
community to come up with their own funding, obviously, to do
parallel planning I guess with them. But I think funding is
really going to be the major challenge.
Senator Murkowski. And if we fail to either come up with
the funding or if we fail in achieving our goal, what does it
mean to your corporation? What does it mean to Doyon, Limited?
Mr. Mery. I guess that is a difficult question to answer
because we always try to find creative ways to work our way
around problems. We have done that for 20 some odd years now.
But I guess the fact that it has been so many years. A lot of
people would like to wrap this process up frankly so people
will know what lands they will be managing and what lands that
they can potentially develop. That is the big question for us
right now. We are prepared to move forward. 10 years actually
we were not prepared to move forward, but we are today.
Senator Murkowski. Certainty is necessary for any kind of
investment.
Mr. Heath and Mr. Hession as well, either one of you can
answer this because you both made the same comment in your
initial statements. You state that you support the transfer of
the remaining selections as soon as practicable but then you go
on to object to this particular legislation and the amendments
that we have proposed. Is there anything in this legislation
that you do support, that you do feel helps with our agreed
goal that we need to speed up the conveyance process, that we
need to achieve the goal of full and rapid conveyance?
Mr. Hession. Yes, Madam Chair. There are numerous sections.
I think you can assume that if I did not mention them, that
those are ones that we see as noncontroversial and helpful in
this process.
Senator Murkowski. Oh, good. Then I am going to go back
through your testimony.
[Laughter.]
Mr. Hession. Could I make another observation at this
point? There have been a number of acreage figures talked about
here this afternoon. We do not see the situation quite like
some of the previous speakers. According to the BLM now as of
September of last year, the BLM has transferred 91 million
acres to the State of Alaska either as patented lands or
interim conveyance. Interim conveyance involves complete
divestiture of Federal interests to the State. For purposes of
managing it, leasing it, selling it, et cetera, it is as good
as patent. That leaves the State with only about 10 million
acres because they want to hold on to about 3.5 million acres
of over-selections indefinitely. I do not think that the sense
of urgency that the State has expressed here is quite as urgent
as you might be led to believe.
In the case of the native regional corporations, they only
have 8 million acres left to go, and there is the real problem,
if there is any. They have 82 percent of their entitlement in
hand and can do whatever they want with it right now.
That is why I suggested that maybe if the committee stepped
back and took a detailed look at the bill, it could craft a
version that all parties to the discussion here could support.
I appreciate your effort to continue the cooperative process
here. We certainly would be delighted to help out on that
score. It is just that some of these are so complex, technical,
and frankly, mysterious that they need further analysis we
think before a final bill is adopted.
Mr. Mery has put his finger--and Mr. Thomas--on the real
bottleneck here and that is the Alaska Native allotments. Once
those are handled in some way, everything else will fall in
place rapidly I think. Therefore, it would seem appropriate for
the subcommittee to focus in on that true bottleneck, see what
you can do, without abridging anyone's rights in this process,
to expedite those, and then things will, I think, proceed
rapidly.
Senator Murkowski. Mr. Heath, what do you find of value in
the bill?
Mr. Heath. Well, I would agree with my colleague, Mr.
Hession, here, that the sections that we did not comment on are
sections that we find okay, we have no objection to.
If I could respond to your question to Marty Rutherford
about acreages. I am looking here on our exhibit 1 in my
written testimony, a letter written by BLM which states that we
believe the ultimate range of acres available for reallocation
is between 180,000 and 200,000 acres. And here in section, I
believe, 209 of the bill, that allocation has been moved up to
255,000. That is what I was referring to in my testimony, that
we have gone from the BLM maximum of 200,000 acres to the bill
being 255,000 acres. And that is where we made the statement
that it seems to be arbitrary. At least we do not know the
justification for exceeding the BLM estimate.
Senator Murkowski. You made the reference that if Kaktovik
were to receive its remaining 200,000-acre entitlement, that
that could be construed as allowing Kaktovik within the ANWR
coastal plain, that it would somehow be construed that they
would be able to proceed with oil and gas development and that
we should not be willing to take that chance. We have asked
this question so many different ways and the answer always
comes back the same, that this in no way allows for
authorization or somehow or other any opportunity for Kaktovik
to pursue oil and gas development. What leads you to make the
statement that you have made this afternoon?
Mr. Heath. Madam Chair, SEACC is southeast Alaska. I
believe Jack Hession made that statement. I will pass it over
to him.
Senator Murkowski. Okay, I am sorry.
Mr. Hession. What I was referring to there is in the case
of the KIC corporation, they would have another I think it was
6,000 acres left to go. That is not the real issue here. That
is a different matter entirely from the subsection in the bill
here that would require--section 213 I believe it was--the
Secretary of the Interior to convey the subsurface estate to
the Arctic Slope Regional Corporation. There is no guarantee
that this maintains the status quo with respect to the current
congressional prohibition on both conveyances and development
of the coastal plain. It needs further analysis. It raises all
sorts of questions as to the intent here, and as I mentioned
before, it is going to be extraordinarily controversial and it
is, furthermore, simply not relevant to the purpose of the
bill.
Senator Murkowski. Well, you yourself have indicated that
we, in fact, we have a congressional prohibition at this point
in time on oil and gas exploration and drilling in the 1002
area. So to suggest that I think this legislation opens the
door for that, of course it makes it controversial, but when
you have a congressional ban in place currently and unless we
in Congress act to remove that, I think when you say it is
controversial, yes, it is controversial because you are making
it so. You are suggesting that somehow or other if we were to
authorize this and enact this into law, that all of a sudden
ANWR is now open. And I think we need to be careful about what
we suggest the outcome of this legislation might present
because I think it has been very clear, and it is not our
intent with this legislation that this is somehow a back door
to opening ANWR to oil and gas exploration and drilling. What
we are doing here and the intent is very clear. We want to
convey those final entitlements to the residents of Kaktovik as
they are entitled to receive.
So there are perhaps some concerns that have been generated
about this legislation that I feel are not merited based on
what we have in draft, the intent of the legislation, and I
think it is important that we make sure that we do not
unnecessarily raise an issue that simply should not be there.
Mr. Bisson. Senator, could I say something for just a
second?
Senator Murkowski. Mr. Bisson.
Mr. Bisson. The Arctic Slope Regional Corporation already
owns 86,000 acres of mineral estate in the 1002 area of ANWR.
They already own the mineral estate under the lands that the
Village of Kaktovik has. All you are doing is adding 2,000
additional acres to that ownership, which they are currently
not able to explore, lease, or develop. So your point is
correct.
Senator Murkowski. We are fast upon the 5 o'clock hour. I
appreciate the time and the attention. Thank you for coming,
all of you, a long way. The subcommittee is going to be working
on this to see if we cannot resolve those conflicts that might
exist. We are going to be working on all four pieces. We have
been focusing for the past hour really on the two Alaska bills,
but we will be working on all four of them.
We will hold the committee record open for 10 business days
for any additional information that may need to be put in the
files in relation to these three pieces. So we would welcome
any follow-up from any of the panelists on this.
With that, we will adjourn and thank you.
[Whereupon, at 4:58 p.m., the hearing was adjourned.]
APPENDIX
Additional Material Submitted for the Record
----------
Crook County, OR, February 11, 2004.
Hon. Larry Craig,
Chair, Senate Committee on Energy and Natural Resources, Subcommittee
on Forests and Public Land Management, Dirksen Building,
Washington, DC.
Re: Testimony regarding S. 1910, to be considered Feb. 12, 2004.
Dear Mr. Chairman and members of the committee: On behalf of the
people of Crook County, Oregon, I write today to commend you and the
President for the leadership you have shown in recognizing the grave
threat which the fuel-loaded forests of the western United States pose
to human life and safety, public and private property and important
scenic and environmental resources. Your bipartisan effort to advocate
for and pass the Healthy Forests Restoration Act--the most significant
legislation passed in this arena for 25 years--is an act of leadership
and statesmanship which will have consequences for decades to come.
As chief elected official for a county of nearly 3,000 square miles
located in the heart of Oregon and surrounded by the sprawling national
forests, I and my constituents have experienced first-hand the
devastating effects of economic distress brought about by near-total
elimination of our traditional economic based and resulting
catastrophic wildfire, insect infestation and diseases. My constituents
find it unconscionable the willingness of some to allow once
magnificent forests of Ponderosa Pine to fall into ruin and decay,
while we continue to experience a jobless rate which is among the
highest in our state which ranks second overall in the nation in
unemployment. It is also heart-wrenching for my constituents to travel
through forests where many have recreated since childhood and encounter
large stands of beetle-killed timber or scorched earth where mighty
trees once stood. We join all Americans in enjoying the benefits of
ancient forests, wildlife and clean water, and we are shocked that
federal forest management policies as presently administered work to
the detriment of these goals.
We believe that the Health Forest Restoration Act is a necessary
and proper first step toward correcting decades of mismanagement and we
look forward to its implementation.
In its original form--the form substantially passed by the Senate--
this legislation envisioned as a key piece a coordinating center which
was intended to inventory forest health and coordinate recovery and
management issues. That center was to be located in Prineville, Oregon,
the county seat of Crook County, where it was envisioned that it would
be attached to the Ochoco National Forest Headquarters. This component
of the bill was strongly supported by Crook County but was dropped for
good and sufficient reason when it was recognized by Congress that the
bill, as passed by the Senate, was so laden with amendments that it was
a budget buster. The ensuring decision to drop all miscellaneous
provisions in order to pass the core legislation was a wise one for
which negotiators are to be commended.
Notwithstanding that necessary political step, however, we believe
that one proposal dropped from the original legislation was highly
germane to its purposed and that its reconstitution in legislation
would greatly strengthen and enhance the original bill. That provision
is the establishment of a Forest Research Center, now proposed in
stand-alone legislation pending before the subcommittee, S. 1910.
A companion measure, H.R. 3566, has been introduced in the House of
Representatives by Rep. Greg Walden, who as author and principal
sponsor of the Health Forest Initiative also recognizes the need for
coordination in undoing the serious damage which has been done to our
nation's natural resources. The bi-partisan, cross-Chamber support this
legislation enjoys is testimony to the importance of this proposal.
As chief-elected official for a nearly 3,000-square-mile county,
nearly half of which is comprised of public lands, I have a high level
of interest in seeing this bill succeed. For several summers now,
extreme wildfires, including Hash Rock and Bandit Springs, have burned
through the forest northeast of Prineville. The consequences to
ecosystems were devastating and the forests are not expected to recover
fully for at least a decade. Due to appeals, even the merchantable
timber in these burned-over areas will not be harvested. (In one case,
litigation was filed over a mere 55 trees.) The consequence of this is
that the fires have had no positive impacts, environmentally or
economically, for the community of Prineville--once a vibrant and
thriving center of the American wood products industry.
The result has been widespread suspicion that the federal
government does not really have the best interests of the people of
Central Oregon at heart. Under both Republican and Democratic
leadership, we have seen our environment degraded and our traditional
natural-resources based economy reduced to a mere ghost of its formerly
vibrant self. Although we appreciate the federal support that has been
provided through the Secure Rural Schools and Community Self
Determination Act sponsored by Senators Wyden and Craig, it is quite
frankly embarrassing to have to ask for and accept federal help when we
have the means to help ourselves rotting in our forests just a few
miles away.
The proposed forest research center can help right the balance. Not
only will it ensure efficient and effective coordination and allocation
of scarce federal resources (apparently growing scarcer by the day) but
it will also bring much-needed federal employment opportunities to a
community which has been economically damaged by federal forest-
management policy of the last 25 years. In addition, by attaching the
center to the Ochoco National Forest in Prineville, Congress can help
assure the existence of critical mass needed to preserve the Ochoco,
the resources of which have shrunk substantially in the face of
stalemate and standoff related to lack of national consensus on timber
harvest.
In addition, the Ochoco is a logical forest in which to attach this
center because it has long been noted for its expertise in fire and
fuels management. Through a collaborative effort with the BLM and
Oregon State Forestry (which also maintain headquarters in Prineville)
the Ochoco oversees treatment of 35,000 acres per year of forest and
range fuels. In addition, the Ochoco also does fire and fuels
management planning for the Deschutes National Forest, headquartered in
nearby Bend, Oregon. In total, the lands for which the Ochoco is
responsible, including those controlled by the Ochoco, the Deschutes
and the Bureau of Land Management total more than 4 millions acres
scattered across a 12 million acre area. Experience with such a vast
amount of land and varied ecosystems--including coniferous forest
particularly prone to fuels build up and catastrophic wildfire--would
be hard to duplicate elsewhere in the nation, making the Ochoco a
logical entity to which to attach the proposed center. Finally, the
Ochoco makes sense as the headquarters of a forest research center
because of its pioneering work using technology--particularly GIS
systems and remote-sensing--to conduct large-scale inventory and
forest-health monitoring projects.
In sum, simply by supporting S. 1910, you can accomplish numerous
objectives:
You can contribute to the economic restoration of a
community which has been financially damaged by a federal land-
management policy which has been at best confused and at worst
chaotic;
You can ensure the sustainable health of northwest forests,
an important environmental asset to clean water, clean air,
preservation of wildlife and recreation for all Americans;
You can ensure the optimal investment of federal resources
already committed to forest management through passage of the
Healthy Forest Restoration Act; and
You can build on an existing infrastructure well positioned
to serve the natural resource management needs of the nation.
In my view, this is one of those rare ``win-win'' opportunities for
the federal government and the constituency it serves, locally,
regionally and nationally. I hope you will not let this opportunity go
by and I urge you to support passage of S. 1910.
Sincerely,
Scott R. Cooper,
Crook County Judge.
______
Prineville-Crook County Chamber of Commerce,
Prineville, OR, February 11, 2004.
Hon. Ron Wyden,
Hart Office Building, Washington DC.
Dear Senator Wyden: I am submitting this testimony on behalf of the
Prineville-Crook County Chamber of Commerce in support of passing the
Senate wildfire legislation that will establish a forest health
research center at the Ochoco National Forest headquarters, in Crook
County, Oregon.
Crook County is a historically timber based economy with deep ties
to the Ochoco Forest. it is a logical site for a research center that
would be responsible for evaluating forest health conditions, consider
the ecological impacts of insect, disease, invasive species, and assess
fire and weather-related events that would help reduce fire risk not
only to Central Oregon but also to the Northwest forest area.
Why site the Research Center in the Ochoco National Forest? For
more than a decade, Crook County has weathered the closure of primary
mills due to federal forest practices and the appeals process. As a
result, our community has suffered double-digit unemployment from time
to time, during the last decade as a result of those mill closures.
In addition, two years ago, in a time of reduced federal budgets,
our community successfully made a strong case to prevent our forest
from becoming merged with the neighboring Deschutes National Forest,
and we also retained our own Forest Supervisor. We proved that we could
not and would not loose control of our forest that supported 50 jobs.
We proved that we valued the community leadership and social capital
that forest service employees provide our community. And we stood firm
that the Ochoco Forest was qualitatively used differently from. the
Deschutes National Forest and should be managed to reflect those
differences.
I point to these examples simply to demonstrate that the leadership
in Crook County understands and values the economic and socio-cultural
importance of the national forest to our community. It is with pride
that I can also say, without hesitation, that the research center would
be embraced and be supported by the community at large and by the
business community. As you know, this type of community support is a
critical factor in the success of a federal project.
The research center would be a boost to Crook County's economy.
Research centers generally demand an effective, educated workforce. The
center would blend our roots with research and provide the
diversification our economy has so desperately needed. These local
research-based jobs are also models for our students in our high
schools, encouraging them to pursue higher education.
I also want to take this opportunity to acknowledge the unflagging
support our community has received from Senator Wyden and from Rep.
Greg Walden. Both Senator Wyden and Representative Walden understand
the need for the research center, and also understand that placing the
research center in Prineville would be a judicious decision.
While they understand our economic need, they have always
acknowledged our strengths: our skilled workforce, our strong work
ethic, our affordable housing, our high quality of life and the fact
that we have an established, cooperative relationship between the
Forest Service, Bureau of Land Management, County and City Government
and members of the timber sector of the business community. We have a
strong framework in place in our community in which to launch a
successful research center. We thank Senator Wyden and Rep. Walden for
their leadership.
We respectfully ask for your consideration. Specifically, we ask
that you site and fund the Forest Research Center at the Ochoco
National Forest in Prineville, Crook County, Oregon.
Sincerely,
Diane Bohle, Ph.D.,
Executive Director.
______
National Mining Association,
Washington, DC, February 12, 2004.
Hon. Larry Craig,
Chairman, Subcommittee on Public Lands and Forests, Committee on Energy
and Natural Resources, U.S. Senate, Washington, DC.
Dear Mr. Chairman: The National Mining Association (NMA) would like
to express its strong support for S. 1466, the Alaska Lands Transfer
Act of 2003, sponsored by Senator Lisa Murkowski, with the amendments
to the original version proposed on February 2, 2004. We ask that this
letter be placed in the record of the hearing on this legislation
scheduled in your subcommittee for February 12, 2004.
NMA's membership of over 300 companies represents all mining
industry segments including hardrock minerals and coal operators as
well as equipment manufacturers and services providers. NMA is proud to
represent a dynamic industry that is employing the latest technologies
to produce the minerals, metals and energy that the United States needs
for economic growth, national security, enhanced competitiveness and a
rising standard of living for all Americans. The NMA membership
includes companies making a significant contribution to the economy of
Alaska.
Mr. Steven C. Borell, Executive Director of the Alaska Miners
Association, testified on this legislation at the subcommittee's field
hearing in Alaska on August 6, 2003. NMA agrees with the Alaska Miners
Association that Senator Murkowski's bill would streamline a number of
land status issues which directly affect the State of Alaska's ability
to obtain title to 104 million acres of Alaskan land for multiple uses,
including mining of critically important minerals and metals.
As proposed to be amended, S. 1466 removes public land orders
associated with lingering withdrawals, the purposes of which have been
fulfilled and thus the orders are no longer needed to be in force. The
bill addresses these presently withdrawn lands without additional NEPA
review and does so without impacting the existing authority of federal
agencies such as the Bureau of Land Management to withdraw lands which
are now opened. In addition, the bill provides proper priority to
Native Americans, including village and regional corporations, during
the land status review process.
We commend Senator Murkowski for pursuing this legislation and for
taking into account our views and those of the Alaska Miners
Association as the bill is being refined. We believe her effort will
help the U.S. to remain internationally competitive by lessening the
uncertainty over land use restrictions in Alaska and it will serve to
facilitate more exploration, investment and job opportunities in
Alaska.
Sincerely,
Jack N. Gerard,
President and CEO.