[Senate Hearing 111-285]
[From the U.S. Government Publishing Office]
S. Hrg. 111-285
MISCELLANEOUS LANDS BILLS
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HEARING
before the
SUBCOMMITTEE ON PUBLIC LANDS AND FORESTS
of the
COMMITTEE ON
ENERGY AND NATURAL RESOURCES
UNITED STATES SENATE
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
ON
S. 522 S. 865
S. 881 S. 940
S. 1272 S. 1689
H.R. 1442
OCTOBER 8, 2009
Printed for the use of the
Committee on Energy and Natural Resources
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COMMITTEE ON ENERGY AND NATURAL RESOURCES
JEFF BINGAMAN, New Mexico, Chairman
BYRON L. DORGAN, North Dakota LISA MURKOWSKI, Alaska
RON WYDEN, Oregon RICHARD BURR, North Carolina
TIM JOHNSON, South Dakota JOHN BARRASSO, Wyoming
MARY L. LANDRIEU, Louisiana SAM BROWNBACK, Kansas
MARIA CANTWELL, Washington JAMES E. RISCH, Idaho
ROBERT MENENDEZ, New Jersey JOHN McCAIN, Arizona
BLANCHE L. LINCOLN, Arkansas ROBERT F. BENNETT, Utah
BERNARD SANDERS, Vermont JIM BUNNING, Kentucky
EVAN BAYH, Indiana JEFF SESSIONS, Alabama
DEBBIE STABENOW, Michigan BOB CORKER, Tennessee
MARK UDALL, Colorado
JEANNE SHAHEEN, New Hampshire
Robert M. Simon, Staff Director
Sam E. Fowler, Chief Counsel
McKie Campbell, Republican Staff Director
Karen K. Billups, Republican Chief Counsel
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Subcommittee on Public Lands and Forests
RON WYDEN, Oregon, Chairman
TIM JOHNSON, South Dakota JOHN BARRASSO, Wyoming
MARY L. LANDRIEU, Louisiana JAMES E. RISCH, Idaho
MARIA CANTWELL, Washington JOHN McCAIN, Arizona
ROBERT MENENDEZ, New Jersey ROBERT F. BENNETT, Utah
BLANCHE L. LINCOLN, Arkansas JEFF SESSIONS, Alabama
MARK UDALL, Colorado BOB CORKER, Tennessee
JEANNE SHAHEEN, New Hampshire
Jeff Bingaman and Lisa Murkowski are Ex Officio Members of the
Subcommittee
C O N T E N T S
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STATEMENTS
Page
Barrasso, Hon. John, U.S. Senator From Wyoming................... 3
Begich, Hon. Mark, U.S. Senator From Alaska...................... 6
Bennett, Hon. Robert F., U.S. Senator From Utah.................. 5
Bingaman, Hon. Jeff, U.S. Senator From New Mexico................ 2
Burke, Marcilynn A., Deputy Director, Bureau of Land Management,
Department of the Interior..................................... 9
Butler, Oscar Vasquez, Vice-Chair, Dona Ana County Board of
Commissioners, Las Cruces, NM.................................. 32
Claus, Bob, Community Organizer, Southeast Alaska Conservation
Council, Accompanied by Buck Lindekugel, Conservation Director,
Southeast Alaska Conservation Council, Juneau, AK.............. 57
Jensen, Jay, Deputy Under Secretary For Forestry, Natural
Resources and Environment, Department of Agriculture........... 19
Mallott, Byron, Sealaska Corporation, Juneau, AK................. 50
Murkowski, Hon. Lisa, U.S. Senator From Alaska................... 3
Schickedanz, Jerry G., Ph.D., Chairman, People for Preserving our
Western Heritage, Las Cruces, NM............................... 36
Udall, Hon. Tom, U.S. Senator From New Mexico.................... 7
Wyden, Hon. Ron, U.S. Senator From Oregon........................ 1
APPENDIXES
Appendix I
Responses to additional questions................................ 73
Appendix II
Additional material submitted for the record..................... 91
MISCELLANEOUS LANDS BILLS
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WEDNESDAY, OCTOBER 8, 2009
U.S. Senate,
Subcommittee on Public Lands and Forests,
Committee on Energy and Natural Resources,
Washington, DC.
The subcommittee met, pursuant to notice, at 2:38 p.m. in
room SD-366, Dirksen Senate Office Building, Hon. Ron Wyden
presiding.
OPENING STATEMENT OF HON. RON WYDEN, U.S. SENATOR FROM OREGON
Senator Wyden. The subcommittee will come to order. The
purpose of today's hearing is to receive testimony on several
bills pending before the committee. These include:
S. 522, to resolve the claims of the Bering Straits Native
Corporation and the State of Alaska to land adjacent to the
Salmon Lake in the State of Alaska and to provide for the
conveyance to the Bering Straits Native Corporation of certain
other public land in partial satisfaction of the land
entitlement of the corporation under the Alaska Native Claims
Settlement Act;
S. 865 and H.R. 1442, to provide for the sale of the
Federal Government's reversionary interest in approximately 60
acres of land in Salt Lake City, Utah, originally conveyed to
the Mount Olivet Cemetery Association under the Act of January
23, 2000--January 23, 1909;
S. 881, to provide for the settlement of certain claims
under the Alaska Native Claims Settlement Act, and for other
purposes;
S. 940, to direct the Secretary of the Interior to convey
to the Nevada System of Higher Education certain Federal land
located in Clark and Nye Counties, Nevada, and for other
purposes;
S. 1272, a piece of legislation I introduced, to provide
for the designation of the Devil's Staircase Wilderness Area in
my home State, and to designate segments of the Wasson and
Franklin Creeks in the State of Oregon as wild or recreation
rivers, and for other purposes; amd
S. 1689, to desingnate certain land as components of the
National Wilderness Preservation System and the National
Landscape Conservation System in the State of New Mexico, and
for other purposes.
Before we begin, just a few words about the legislation
that I introduced. I am especially pleased that we're having
the hearing on the legislation to designate approximately
29,650 acres surrounding the Devil's Staircase Waterfall in
Wasson Creek as wilderness. This area personifies what my home
State is all about--rugged, wild, pristine, and remote.
The proposed Devil's Staircase Wilderness Area contains
some of the finest old growth forests that remain in Oregon's
Coast Range and a wealth of threatened and endangered wildlife.
Today the Devil's Staircase Waterfall in Wasson Creek is a
place that hikers are fortunate to find and that has been
protected until now by its remoteness. The legislation would
not only protect this hidden gem, but also the forest
surrounding it.
The legislation would also designate approximately 10.1
miles of Wasson Creek and 4.5 miles of Franklin Creek and
related areas as wild and scenic rivers. Preserving these
majestic forests as wilderness is consistent with the goals of
the existing land management plan and will ensure permanent
protection.
So I want to thank all of the Oregon community leaders who
have come together to pursue protection for this extraordinary
area, and I look forward to working with them to ensure that
this treasure is protected for future generations.
Senator Bingaman, any opening statement at this time?
STATEMENT OF HON. JEFF BINGAMAN, U.S. SENATOR FROM NEW MEXICO
The Chairman. Thank you very much, Mr. Chairman, for having
the hearing. I'm mainly here to support the legislation that
Senator Udall and I have introduced, which is S. 1689, the
Organ Mountains-Desert Peaks bill, in southern New Mexico.
Obviously, we have two witnesses on your hearing list today
from New Mexico to talk about this: Oscar Butler, who's Vice
Chairman of the Dona Ana Board of Commissioners. Jerry
Schickedanz is the Chair of the People for Preserving Our
Western Heritage. I welcome both of them to Washington and to
this hearing.
This is an important piece of legislation for us in
southern New Mexico and for Dona Ana County in particular.
We've tried very hard in this legislation to develop a proposal
that strikes the right balance between development
opportunities and protection of the environment. While the
wilderness proposal will have, any wilderness proposal, will
have both supporters and opponents, this one generally has
broad local support, including: the Dona Ana County Board of
Commissioners, that Oscar Butler's going to speak about today,
which unanimously endorsed the proposal; the city of Las
Cruces; and the Town of La Messilla.
In addition, the Governor of New Mexico has written in
support of the bill. Many other organizations, including
sportsmen's groups and the Hispano Chamber of Commerce, have as
well. I would ask your consent to include letters and
resolutions evidencing this support in the record today.
Senator Wyden. Without objection, that will be ordered.
The Chairman. The bill includes protection for the Organ
Mountains, which are the majestic backdrop for the city of Las
Cruces, rise to elevation of 9,000 feet. In addition to their
scenic qualities, the Organ Mountains provide important
wildlife habitat and recreational opportunities. Across the Rio
Grande to the west of Las Cruces, the bill would establish the
Desert Peaks National Conservation Area to protect the winding
canyons of the Robledos and the Lewis Mountains and the broad
canyon watershed that lies in between.
Finally, the bill would protect the Chihuahua Desert
grasslands and the volcanic cinder cones in the Potrillo
Mountains that are located in the southwestern portion of the
county.
So, again thank you very much for including this bill on
the list of items being considered today, and I look forward to
the testimony.
Senator Wyden. Thank you, Chairman Bingaman.
Let's go to Senator Barrasso.
STATEMENT OF HON. JOHN BARRASSO, U.S. SENATOR
FROM WYOMING
Senator Barrasso. Thank you very much, Mr. Chairman, for
scheduling this hearing. I know that Ranking Member Murkowski
and Chairman Bingaman, as well as you, Mr. Chairman, have bills
in today's hearing that are both significant as well as of
personal importance. As we consider all the land legislation,
we must balance the many needs placed on our lands. Public
access and multiple use are critical to achieving that balance.
Local communities and small businesses all across the West
depend on access to and the use of our Federal lands. Jobs and
quality of life in these communities are directly affected by
actions that we take in Congress and the decisions made by
managers on the ground. It's important to make the right
decisions from the start.
So I'd like to add my welcome to all my witnesses, to our 2
Senators, and to the others who are here, and thank you, Mr.
Chairman.
Senator Wyden. Thank you, Senator Barrasso.
Let me just say, you've been a pleasure to work with. I
know we're going to continue the bipartisan tradition of the
subcommittee.
Senator Murkowski.
STATEMENT OF HON. LISA MURKOWSKI, U.S. SENATOR
FROM ALASKA
Senator Murkowski. Thank you, Mr. Chairman. I truly
appreciate the opportunity to have before the subcommittee
today two bills that I have introduced: the Salmon Lake land
conveyance exchange for the Bering Straits Regional
Corporation; and then the Sealaska land conveyance bill, which
involves lands in southeast Alaska.
What these bills at their heart attempt to resolve is
issues with the Alaska Native Claims Settlement Act that this
Congress passed some 38 years ago. That law intended to
promptly settle Native land claims in Alaska by setting up
corporations to receive Federal land, and the goal was to
simply let the corporations make money off the land to benefit
their Native shareholders.
But in these two cases, both Bering Straits and Sealaska
have been prevented for almost 4 decades now from taking title
to Federal lands that were promised to them back in 1971. To my
knowledge, there's no opposition to the Bering Straits land
conveyance bill. This resolves to everyone's apparent
satisfaction the land ownership patterns near Salmon Lake,
which is outside of Nome.
So I'd like to focus a couple minutes this afternoon on the
Southeast Alaska Land Conveyance Finalization Act, given that
the lands at stake are in the Nation's largest forest, the
Tongass, which is always an area which generates its own level
of public interest. But almost everyone agrees that Sealaska
should be able to gain the last 65,000 to 85,000 acres promised
the corporation by ANCSA's terms.
But in 1971 Sealaska was forced to make its land selections
from a 327,000-acre selection pool because of the then long-
term timber sale contracts in the region. The problem with that
was that about 40 percent of this land is areas that were under
water. A lot of the rest of them were in watershed areas that
are vital for local village water supplies. So there were some
very sound environmental reasons, besides economic ones, why
timber development or other economic development should not
necessarily take place there.
So this legislation that we have before us today allows
Sealaska to pick from additional lands, most all of which are
scheduled for timber harvest under the existing Federal Tongass
forest plan and the majority of which have already been logged
in the past. The plan focuses on allowing selections of second
growth timber tracts and that will result in far less entry
into roadless old growth timber areas, and that's a policy that
I think most environmental groups have traditionally favored,
and this is a policy that the rest of the Alaska timber
industry is supporting.
The bill involves Sealaska giving up the right to harvest
timber from about 8500 acres of selections, instead proposing
to select lands for ecotourism or to protect sacred sites, and
all those lands will have prohibitions against logging. Many
will have prohibitions against mineral entry.
As we will likely hear, the question is always about, at
least within the Tongass, over exactly which tracts will be
permitted for logging and where they will be located. There's
always going to be concern from residents that are closest to
potential timber tracts about the effects of timber development
on hunting and on the karst and the cave formations that are
under the surface.
But I'm already supportive of making a change in the bill
that would remove any provisions that would affect management
in Glacier Bay National Park, and I stand ready to support
additional modifications based on the public comments that we
have heard. But I do believe that we can negotiate out a
settlement after gaining more public input as a result of this
hearing and work out a collection of lands that Sealaska will
be able to select that will satisfy most reasonable local
concerns.
I do hope that we can move ahead quickly with this bill,
regardless of what else may be proposed concerning land use
allocations in the Tongass, because I do believe that it is
only just that Sealaska and its Native shareholders finally get
their lands without having to wait additional years for the
conveyances to be finished.
I do appreciate again the opportunity to address this today
through this legislation. I have been asked to submit testimony
for the record and would ask that a letter from the Alaska
Department of Natural Resources on behalf of Governor Parnell,
a statement on behalf of the Alaska Professional Hunters
Association, a statement* on behalf of Jeff Sbonek of Core
Protection, including a petition signed by Core Protection
Point Baker residents, on S. 881, as well as a statement on
behalf of the Bering Straits Native Corporation on S. 522, for
the hearing record.
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* Document and petition have been retained in subcommittee files.
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Senator Wyden. Without objection, those materials will be
added to the record at this point.
Senator Murkowski. Thank you, Mr. Chairman.
Senator Wyden. I thank my colleague.
Senator Bennett has a great interest in these matters.
Senator, welcome and please proceed.
STATEMENT OF HON. ROBERT F. BENNETT, U.S. SENATOR FROM UTAH
Senator Bennett. Thank you very much, Mr. Chairman.
This is a very simple matter. To give you a quick history,
the Mount Olivet Cemetery was established by an Act of Congress
in 1874 when the Federal Government set aside 20 acres that
were managed by the Secretary of War for the cemetery. It's
right next to what was then Fort Douglas and therefore the
Secretary of War was involved.
In 1909, just 100 years ago, Congress expanded the cemetery
through a land exchange and the cemetery association traded
land that it owned adjacent to the Fort Douglas firing range
for military land adjacent to the original 20 acres. The only
problem with that is that the land swap was not of equal value.
The cemetery folks got more money than the taxpayers did or
more value, more land, than the taxpayers did. A letter from
the Secretary of War to the Congress included in the 1909
committee report confirms this.
So the Congress decided in its wisdom, in order to prevent
the Mount Olivet Cemetery people from receiving a windfall if
they ever chose to sell this land, they put in a reversionary
clause that would take effect if the land ever ceased to be
used for cemetery purposes; it would revert to the Federal
Government, and BLM now owns the reversionary clause.
OK. One hundred years later, life has changed dramatically.
Fort Douglas has disappeared. There are a variety of more
intelligent uses for this land and the Mount Olivet Cemetery
people want to sell it for those purposes. But they can't
because under the law it reverts to the Federal Government if
they ever decide they're no longer going to bury people there.
So the purpose of the bill is simply to allow Mount Olivet
Cemetery people to buy the reversionary clause from the Federal
Government. This is one of the easiest ones we have to deal
with in this world of trillions. The taxpayers will be made
whole after 100 years of waiting. The cemetery will be able to
continue in its normal fashion and the BLM will be relieved of
the risk of nominating this little tiny inholding right smack
in the middle of metropolitan Salt Lake City.
I am delighted by the statement of Marcilynn Burke, the
Deputy Director of the BLM, whose testimony is before the
committee. Bottom line, she says: This bill has passed the
House of Representatives 442 to nothing--that can't be right.
There are only 435, so I guess it passed 422 to nothing. She
says: A number of amendments were made to the House bill to
address concerns raised by the Department in testimony before
the House committee. She says: We support the House legislation
as amended and encourage the committee to amend the S.
accordingly.
Senator Wyden. Senator Bennett, you've done good work as
usual. Getting more than 400 votes in the House is not
something that happens every day. So we thank you and look
forward to working with you. You have secured the BLM's
support. It's particularly helpful. Thank you.
Senator Risch, our Northwest neighbor.
Senator Risch. Thank you. I'll pass.
Senator Wyden. OK. Let's go then to our colleagues who are
here to testify. We have Senator Udall and Senator Begich who
are going to offer some remarks. My understanding is that you
would like to sit with the subcommittee afterwards and you're
welcome right after your remarks to come on up and join us this
afternoon.
Why don't we start with you, Senator Begich. We'll go just
alphabetical. Senator Udall knows what it's like to be a ``U''
or a ``W.'' Senator Begich, go ahead.
STATEMENT OF HON. MARK BEGICH, U.S. SENATOR
FROM ALASKA
Senator Begich. Thank you very much, Chairman Wyden and
Ranking Member Murkowski. I appreciate the opportunity to
address the committee today on two important bills to Alaska.
It's no coincidence that both bills, S. 522, the Salmon Lake
Land Exchange, and S. 881, the Sealaska Lands bill, deal with
Alaska's relationship to the land. We believe that Alaskans'
daily connection to our lands is more intense than most of
America.
ANCSA, the Alaska Native Claims Settlement Act of 1971, was
a sweeping act that returned 44 million acres out of 360
million acres total of Alaska to indigenous peoples of the
State, in exchange for surrendering fee simple title. ANCSA may
be history for many in Congress, but the Act continues to
define daily life in my State 40 years after its passage.
I'm a co-sponsor of both of these measures and support your
speedy passage of both. I realize the path is much more
straightforward on one than the other. S. 522, I'm aware of no
opposition to this three-way land exchange that resolves
competing State and Native claims for pieces of Federal land.
My office has received not one single communication opposition
this legislation. In conversation between two Alaskans you're
likely to get three more opinions on the same subject, so when
we see a consensus the deal is obviously a good one.
Turning to S. 881, the Sealaska Lands bill, again I'm proud
to be a co-sponsor and hope you will give it your fullest
attention, but here the landscape is more complex. Sealaska
Corporation, the ANCSA regional corporation for the Native
people of Southeast Alaska, has not completed its land claims.
In addition to returning some land to the Native people of
Alaska, ANCSA set up Native-owned for-profit corporations to
hold this land and look after the economic wellbeing of their
shareholders. This system is the right one for our State, but
we have to recognize the new construct Congress created instead
of a reservation system invites a natural tension.
In order to do the morally right thing and the thing that
Congress charged them to do, look after their people,
corporations have to engage in commerce with the resources they
were given. This is primarily the lands that their ancestors
relied on for generations. With 40 years of hindsight, we can
see that a number of restrictions placed on Sealaska's ability
to select lands both increased likelihood of community conflict
and restrict their ability to engage in more sustainable
economic development for the region.
The bill before you is an attempt by Sealaska Corporation
to achieve a balance in the remaining land selections. It is an
attempt to better balance their responsibilities as stewards of
their lands and their economic responsibility to shareholders
and the communities of Southeast Alaska where their
shareholders live.
I hope today that you will hear testimony that explains
this in great detail today and later in less formal briefings.
I appreciate your patience and your help as we move Alaskans
closer together in solving this issue.
As an aside, I know that you'll hear from a father of one
of my interns today with some concerns on this bill, Bob Claus,
a retired State trooper who will speak on behalf of SEACC,
Southeast Alaska Conservation Council. That demonstrates pretty
well the level of community discussion and interest in this
legislation.
For Alaskans, it's critical that we come to agreement on
this issue of the Sealaska lands bill so we can move forward on
the larger issues of the future of Tongass. If we don't they
will be dictated to us and likely in unpredictable outcomes of
the court system.
I want to thank you for the interest in this legislation
and I hope that you will have a positive consideration and
conclusion to moving these bills forward. Thank you very much,
Mr. Chairman.
Senator Wyden. Thank you, Senator Begich. I know you feel
very strongly about this. You've talked with me about it on the
floor shortly after you came to the Senate. We'll work very
closely with you on it. I know it's important to your region
and to you, and we will follow up with you promptly.
Senator Udall.
STATEMENT OF HON. TOM UDALL, U.S. SENATOR
FROM NEW MEXICO
Senator Udall. Thank you, Chairman Wyden, and thank you,
Ranking Member Senator Murkowski and other members of the
subcommittee, for allowing me to speak today about S. 6989, the
Organ Mountains-Desert Peaks Wilderness Act, and to participate
in this important hearing. I'd also like to thank Chairman
Bingaman for the extensive work he and his staff have done over
the past several years to prepare this bill for introduction. I
think they have been painstaking in terms of trying to bring
people together and find common ground.
This is a very important bill for New Mexico. The Organ
Mountains-Desert Peaks Wilderness Act celebrates and preserves
a portion of the unique and delicate landscape of southern New
Mexico. Wilderness and conservation areas in Dona Ana and Luna
Counties will protect a vast number of archaeological sites and
riparian areas. These protected areas will act to maintain
habitat and migration corridors for wildlife and preserve some
of the only chihuahuan desert in the United States.
The wilderness and national conservation areas proposed in
S. 1689 surround the growing city of Las Cruces, New Mexico's
second largest city. The citizens of Las Cruces and the
surrounding communities want to ensure that the area will
continue to develop in a way that preserves the surrounding
pristine landscapes, including the iconic Organ Mountains.
The Organ Mountains-Desert Peaks Wilderness Act is
consistent with the city and county's long-term growth plan and
will act to maintain growth patterns in a way that will allow
all citizens to enjoy the impressive views and landscapes
surrounding Las Cruces. Years of negotiation and cooperation
have resulted in the legislation being introduced today. Nearby
military facilities worked with the Bureau of Land Management
on land exchanges that are reflected in the bill and will
benefit the public and military entities. Recommendations from
the Border Patrol on how to ensure that the new wilderness fits
into homeland security efforts were incorporated into the bill.
Conservation groups worked with hunting and outdoor recreation
organizations to find common ground.
As a result, this bill enjoys the support of numerous local
associations and governing bodies. In the past few weeks
resolutions supporting the bill were passed unanimously by the
Dona Ana County, the Town of Messilla, the city of Las Cruces,
and, as Senator Bingaman mentioned, Governor Richardson has
come out very recently in full support of the bill. Several
local news agencies have published editorial endorsements of
the Organ Mountains- Desert Peaks Wilderness Act and numerous
organizations have shown support, including the Hispano Chamber
of Commerce de Las Cruces, the High Tech Consortium of Southern
New Mexico, the Dona Ana County Associated Sportsmen, and the
New Mexico Wildlife Federation, among others.
The Organ Mountains-Desert Peaks Wilderness Act will
protect thousands of acres of desert, riparian, and rugged
mountainous lands. This area of rare and beautiful landscapes
will be valued for generations. From the jagged basalt lava
flows of the cinder cone wilderness to the roaming hawks and
scrambling havalinas of the Robledo Mountains, this unique
piece of southern New Mexico has abundant natural value and
deserves protection.
With this legislation we build upon the work of
conservation greats like Aldo Leopold, a man who saw the beauty
of New Mexico's untamed wilderness lands and sought to preserve
them for future generations. It was Mr. Leopold who said:
``Conservation is a state of harmony between man and land.''
With the Organ Mountains-Desert Peaks Wilderness Act, we will
move a step closer to achieving that state of harmony.
I thank the subcommittee for taking the time to consider
this bill and I look forward to hearing from the next two
panels of witnesses and, Chairman Wyden, joining you and the
other committee members up there.
Senator Wyden. Senator Udall, thank you for your statement
and for your good work. I want to know what a havalina is?
Senator Udall. A havalina is a wild pig. They're pretty
fierce and they have tusks on them right out in front, and you
don't want to run into a wild havalina----
Senator Wyden. I'd rather not.
Senator Udall [continuing]. Coming after you or charging
you.
Senator Wyden. I got the drift.
Senator Udall. It's a wonderful little critter, though. If
you'll come to New Mexico, Senator Bingaman and I will take you
out and introduce you to a havalina.
The Chairman. We'll give you some barbecued havalina; how's
that?
Senator Wyden. I've gotten havalina 101.
Come on up and join us, colleagues, and thank you for your
fine statements.
At this point we have a number of other materials that need
to be made part of the record: from the Coalition of National
Park Service Retirees on S. 881--that's the matter the Alaskans
are interested in--and Senator Reid and Senator Ensign's
statements in support of S. 940, the Southern Nevada Higher
Education Land Act. Without objection, these statements will be
included in the record as well.
Senator Wyden. Let's now move to our Administration
witnesses. Ms. Burke is here on behalf of the Bureau of Land
Management and Jay Jensen is here on behalf of the Department
of Agriculture. We appreciate both of you coming. Ms. Burke, I
know this is a fairly new role for you, so welcome to the
subcommittee, Mr. Jensen as well. We'll make your prepared
statements part of the record in their entirety and if you
could just summarize your views we can speed things along.
We'll start with you, Ms. Burke.
STATEMENT OF MARCILYNN A. BURKE, DEPUTY DIRECTOR, BUREAU OF
LAND MANAGEMENT, DEPARTMENT OF THE INTERIOR
Ms. Burke. Thank you, Mr. Chairman and the committee, for
inviting me and the Department of the Interior to testify on
six bills of interest to the Department. As requested, I will
briefly summarize my prepared testimony this afternoon.
The BLM is responsible for conveying Federal lands to
Native corporations under the Alaska Native Claims Settlement
Act and to the State of Alaska under the Alaska Statehood Act
of 1958. The Bering Straits Native Corporation and the State of
Alaska filed overlapping claims to lands in the Salmon Lake
area. The Native corporation and the State negotiated a
resolution of these overlapping claims and brought that
tentative resolution to the BLM. All three parties signed the
Salmon Lake Area Land Ownership Consolidation Agreement on July
18, 2007.
The BLM supports S. 522 because it would ratify that
agreement among three parties and allow for a reasonable and
practicable conveyance of the lands in the Salmon Lake area.
S. 865 and H.R. 1442 provide for the sale of the Federal
Government's reversionary interest in approximately 60 acres of
the Mount Olivet Cemetery in Salt Lake City, Utah. We support
H.R. 1442 as passed by the House of Representatives on July 16
of this year, which addressed concerns that the BLM raised in
earlier testimony.
The 1971 Alaska Native Claims Settlement Act established a
framework under which Alaska Natives formed private
corporations to settle their aboriginal claims to lands in
Alaska. Sealaska is one of those 12 regional corporations
formed in ANCSA. S. 881 would amend the act to allow Native
corporations to receive conveyance of lands outside their
original withdrawal areas established by the Act. The bill
would also create new and unique categories of selections not
available to any other regional corporation. It would impose
time lines for the Secretary of Interior to complete the
conveyance of lands and remove restrictive covenants on
historic and cemetery sites.
Finally, the bill would require the National Park Service
to enter into a cooperative management agreement with Sealaska
and others with cultural and historical ties to the Glacier Bay
National Park.
While the Department appreciates that time has brought the
desire for amendments to the original ANCSA settlement, we have
a number of concerns. We are concerned, for example, that the
bill would lead other regional corporations to attempt to
reopen their land claims at this very late stage in the land
transfer program. If this occurs, it would prolong the process
of completing ANCSA entitlements rather than accelerate them,
as previously directed by Congress.
The Department supports the goal of completing the ANCSA
entitlements as soon as possible and is working diligently to
maintain the accelerated pace of the land transfer programs. We
look forward to working with Sealaska, Congress, community
partners, this committee, and others to find a solution that
works.
S. 940 would convey without consideration three parcels
totaling approximately 2400 acres to the Nevada System of
Higher Education to meet the needs of southern Nevada's rapidly
growing college and university system. As a matter of policy
BLM supports working with State and local governments to
resolve land tenure adjustments that advance worthwhile public
policy objectives. BLM supports S. 940, but would like to work
with the sponsors on amendments to ensure that the conveyances
are consistent with the Recreation and Public Purposes Act and
also to address the management needs associated with conveyance
of the parcel located in Nye County, Nevada.
S. 1272 proposes to designate almost 30,000 acres of
Federal land near the coast in southwestern Oregon as
wilderness, as well as portions of both Franklin Creek and
Wasson Creek as parts of the wild and scenic rivers system. We
support these designations of BLM lands and recommend minor
modifications.
Finally, the Administration supports S. 1689, which
designates two new national conservation areas and eight new
wilderness areas in Dona Ana County, New Mexico. The
legislation also expands the Prehistoric Trackways National
Monument, releases over 16,000 acres from wilderness study area
status, and transfers 2,000 acres of high-resource value lands
from the Army to BLM for inclusion in the Organ Mountains
National Conservation Area.
Chairman Bingaman has worked for years with user groups,
local governments, and conservationists to craft this
legislation that will ensure that generations of New Mexicans
and indeed all Americans will be able to witness the golden
eagle soar over the Sierra de las Uvas Mountains, hike the
landmark Organ Mountains, or hunt in the volcanic outcroppings
of the Potrillo Mountains.
With that, I would like to conclude and thank you for
allowing me to testify, and I'd be happy to answer any
questions.
[The prepared statement of Ms. Burke follows:]
Prepared Statement of Marcilynn A. Burke, Deputy Director, Bureau of
Land Management, Department of the Interior
S. 522
Thank you for the opportunity to testify on S. 522, the Salmon Lake
Land Selection Resolution Act. As a party to the Salmon Lake Area Land
Ownership Consolidation Agreement, the Bureau of Land Management (BLM)
has supported efforts between the State of Alaska and the Bering
Straits Native Corporation (BSNC) to resolve overlapping land
selections at Salmon Lake. As such, the BLM supports S. 522 because it
will ratify the agreement between the BLM, BSNC, and the State of
Alaska, and allow for a reasonable and practicable conveyance of lands
in the Salmon Lake area.
BACKGROUND
Salmon Lake is located on the Seward Peninsula, approximately 40
miles northeast of Nome. The lake is one of the largest bodies of fresh
water on the peninsula, and has long been an important source of food
and resources for the Native people. Because the area contains
significant fisheries and other subsistence resources, it remains a
popular resource and destination for local communities.
The BLM is responsible for expediting the conveyance of Federal
lands to Native corporations, including the BSNC, under the Alaska
Native Claims Settlement Act (ANCSA), and to the State of Alaska under
the Alaska Statehood Act of 1958.
The BSNC, the Native regional corporation for the Bering Straits
area, and the State of Alaska each sought to gain title to the Salmon
Lake area through selection applications filed under respective
provisions of ANCSA and the Alaska Statehood Act. However, the land
addressed by the two applications overlapped. The BSNC and the State
negotiated a resolution to this issue whereby each entity would receive
title to distinct lands. The BLM supported this resolution, and the
three parties signed the Salmon Lake Area Land Ownership Consolidation
Agreement on July 18, 2007. Legislation is now required to ratify the
Agreement between the United States (acting through the Department of
Interior, BLM), the BSNC, and the State of Alaska. The Agreement would
have expired on January 1, 2009, but its term was extended to January
1, 2011 in anticipation of ratifying legislation.
S. 522
S. 522 represents an opportunity to resolve the overlapping land
selections between the BSNC and the State. The bill would ratify the
Agreement between the BLM, the BSNC, and the State, and allow for
finalization of land conveyances in the Salmon Lake area. The lands
would be transferred in accordance with the terms of the signed
Agreement.
As noted, the BLM supported the efforts between the BSNC and State,
and signed the Agreement to recognize the desires of the entities. The
bill would also further the intent of the Alaska Land Transfer
Acceleration Act of 2004 (PL 108-452), expediting the transfer of title
to federal lands to Native corporations and the State of Alaska.
CONCLUSION
Thank you for the opportunity to testify in support of S. 522. I am
happy to answer any questions.
H.R. 1442 AND S. 865
Thank you for inviting the Department of the Interior to testify on
S. 865 and H.R. 1442, which provide for the disposal of the Federal
government's interest in certain acreage of the Mount Olivet Cemetery
in Salt Lake City, Utah. The Bureau of Land Management (BLM) supports
H.R. 1442 as passed by the House of Representatives.
BACKGROUND
The Mount Olivet Cemetery, in Salt Lake City, Utah, is owned and
managed by the Mount Olivet Cemetery Association (the Cemetery
Association). Located on the east side of Salt Lake City, the cemetery
consists of approximately 80 acres of land, 20 acres of which is
currently used for burials.
The Federal government, acting through the Secretary of War, first
``set apart'' 20 acres of what was then a military reservation ``to be
used as a public cemetery. which shall be forever devoted for the
purpose of the burial of the dead'' (Act of May 16, 1874).
Subsequently, in 1909, the Congress provided for the conveyance of an
adjacent 50 acres to the Mount Olivet Cemetery Association (under the
Act of January 23, 1909). The 1909 Act provided that conveyance was
contingent upon the Association first conveying to the United States a
specified parcel of land, of approximately 150 acres, outside of Salt
Lake City. However, the legislation also included a reverter clause,
requiring that the land conveyed under the 1909 act could be used only
as a cemetery:
Said land to be by the said Mount Olivet Cemetery Association
permanently used as a cemetery for the burial of the dead:
Provided, That when it shall cease to be used for such purpose
it shall revert to the United States.
The purpose of this reversionary clause is not established in the
legislation. Whether it was due to an unequal exchange of lands, or for
some other reason, is not stated, nor has the BLM been able to make any
determination through the review of historical records.
In 1992, Congress took further action regarding Mount Olivet
Cemetery with the enactment of legislation (Public Law 102-347), which
allows the Cemetery Association to lease tracts of the lands conveyed
in 1909 for up to 70 years, to the extent that such leases would not
prevent future use as a cemetery. Public Law 102-347 speaks only to the
possibility of 70-year leases, and the BLM has interpreted the 1909
reverter clause still to be in effect. Therefore, upon application by
the Cemetery Association, in December of 1993, the BLM issued a
``Certificate of Approval'' for the lease of 15 acres to the adjacent
East High School for a football field, and in January of 1996, an
additional certificate was issued for the lease of lands for a nursing
and retirement facility which was never built.
In recent years, the Cemetery Association has sought to sell,
rather than lease, some of the acres conveyed under the 1909 Act to
Rowland Hall/St. Mark's School. Because the proposal is for a sale,
rather than a lease of up to 70 years, the BLM does not have the
authority to approve such a conveyance by the Cemetery Association.
Specific authority for the BLM to dispose of the reversionary interest,
established in 1909, to the Cemetery Association, as well any
additional direction respecting valuation of this reversionary interest
through appraisal, would facilitate resolution of this adjustment in
land tenure.
S. 865 AND H.R. 1442
The House of Representatives passed H.R. 1442 on July 16, 2009; our
testimony addresses the House-passed bill.
H.R. 1442 is a reasonable solution to the desire of the Mount
Olivet Cemetery Association to be able not only to lease, but also to
sell, the cemetery lands. Under H.R. 1442, the Secretary of the
Interior (acting through the Department's Appraisal Service
Directorate) will undertake an appraisal of the reverter clause
attached to the 1909 lands. Upon receiving that appraisal, the Cemetery
Association may purchase the reverter, thus owning all right, title,
and interest in the land. All costs associated with this conveyance,
including the appraisal, would be the responsibility of the
Association.
A number of amendments were made to H.R. 1442 to address concerns
raised by the Department in testimony before the House Natural
Resources Committee on May 14, 2009. We support the House legislation,
as amended, and encourage the Committee to amend the S. accordingly.
S. 881
Thank you for the opportunity to testify and provide the Department
of Interior's (Department's) views on S. 881, the Southeast Alaska Land
Entitlement Finalization Act. The Department supports the goals of
completing Alaska Native Claims Settlement Act (ANCSA) entitlements as
soon as possible so that Alaska Native corporations, including Sealaska
Corporation (Sealaska), may each receive the full economic benefit of
land title. However, while the Department appreciates that time has
brought a desire for amendments to the original ANCSA settlement to
light, we have a number of concerns. We look forward to working with
Sealaska, Congress, and other community partners and interests to find
a solution that works. My testimony today will focus on outlining those
concerns.
BACKGROUND
The Bureau of Land Management (BLM), Alaska State Office, is
responsible for expediting federal land conveyances to individual
Alaska Natives, Native corporations, and the State of Alaska under four
major statutes: the Alaska Native Allotment Act of 1906, the Alaska
Statehood Act of 1958, the Alaska Native Veterans Allotment Act of
1998, and ANCSA. When these land conveyances are ultimately completed,
about 150 million acres, or approximately 42 percent of the land area
of Alaska, will have been transferred from federal to State and private
(Native) ownership.
ANCSA established a framework under which Alaska Natives could form
private corporations to select and receive title to 44 million acres of
public land in Alaska and receive payment of $962.5 million in
settlement of aboriginal claims to lands in the State. Sealaska is one
of twelve regional corporations formed under ANCSA to receive land
benefits.
S. 881
S. 881 would amend ANCSA to allow Sealaska to receive conveyance of
lands outside of the original withdrawal areas established by the Act
in 1971, and would create new and unique categories of selections not
available to other regional corporations. Specifically, it would allow
Sealaska to select and receive conveyance from Forest Service-
administered lands in the Tongass National Forest other than those that
were originally available for selection. The Department defers to the
Forest Service regarding the effects of the bill on Forest Service-
administered lands. However, the Department notes the undesirable
precedent of substituting new lands for one of the corporations at this
stage in the land transfer program. Doing so would in effect postpone
deadlines and permit new selections. The bill would also impose
timelines for the Secretary of the Interior to complete the conveyance
of land, would remove restrictive covenants on historic and cemetery
sites, and would require the National Park Service (NPS) to enter into
a cooperative management agreement with Sealaska and others with
cultural and historical ties to Glacier Bay National Park.
As noted, the Department supports finalizing entitlements under
ANCSA and the BLM is maintaining the accelerated pace of the program
while ensuring that the intent of ANCSA is implemented. By the end of
FY 09, BLM has surveyed and patented 58 percent of lands to the native
Corporations, and has granted interim conveyance on an additional 34
percent. The Department is concerned that S. 881 would provide an
impetus for other regional corporations to attempt to reopen land
claims at this critical final stage in the land transfer program. If
this occurs, it would obstruct the progress of the program, and prolong
the process of completing ANCSA entitlements. Provisions of S. 881,
such as future selections, would also create uncertainty regarding the
boundaries of federally-managed public lands in Alaska.
In addition, the Department is very concerned with the deadlines
for conveyance set in S. 881. These deadlines would put the completion
of Sealaska conveyances ahead of all other regional corporations,
individual Alaskan Natives, and the State. This ``front of the line''
approach would set a negative precedent of preferential treatment and
interrupt progress on conveyances to other entities. The BLM has made
significant progress since the enactment of the Alaska Land Transfer
Acceleration Act of 2004, which gave the BLM the tools it needed to
expedite these land transfers. An amendment such as S. 881, which would
change fundamental provisions of this statute, would serve to reverse
much of the progress we have made thus far.
S. 881 would also remove existing covenants on historic and
cemetery sites conveyed under ANCSA Section 14(h)(1), which restrict
activity that is incompatible with these sites' cultural or historic
values. The Department believes this would provide an opportunity for
other regional corporations to request removal of similar restrictions
from other Native corporation sites, further negatively impacting the
land transfer program.
The cooperative management agreement provisions in sections 3(a)(2)
and 3(c)(2) of the legislation would require the National Park Service
(NPS) to offer to enter into cooperative management agreements with
Sealaska and other corporations for activities in Glacier Bay National
Park. This could confuse the execution of existing memoranda of
understanding and concession contracts which are currently working well
in the park. The NPS maintains a Memorandum of Understanding with the
Hoonah Indian Association, a federally recognized tribe, as well as a
cooperative agreement with the non-profit Huna Heritage Foundation to
provide cultural learning activities in the park. Both entities are
also partners in monitoring the condition of Tlingit historic sites in
the park.
In addition, requiring cooperative management agreements for such
activities such as guided tours and establishment of visitor sites with
profit-making corporations would be inconsistent with the open,
competitive process currently provided under concession management law
and regulation. Existing practices are already resulting in engaging
Native Alaskans in the visitor experience: a subsidiary of Huna Totem
Corporation has the Glacier Bay lodge and tour contracts with Aramark
Leisure Services through 2013, and Goldbelt Inc., a Juneau-based Native
corporation, had the contracts between 1996 and 2004.
The Department also has concerns about Section 5(e)(2), which would
broaden the definition of tribal lands under the National Historic
Preservation Act (NHPA) to include all ANCSA lands in Alaska
(approximately 44 million acres). Although this provision addresses the
definition of tribal lands only with respect to the NHPA, granting
tribal status to lands owned by for-profit corporations for any purpose
could have wider implications than what may be intended. The Department
would like to have more time to assess this potential impact of this
provision before the committee takes any action on it.
CONCLUSION
As noted above, the Department supports the goal of completing
ANCSA entitlements as soon as possible and is working diligently to
maintain the accelerated pace of the land transfer program. The
Department is committed to working with the parties to reach a
solution. Thank you for the opportunity to testify on this matter. I
will be glad to answer any questions.
S. 940
Mr. Chairman and members of the Subcommittee, thank you for the
opportunity to testify on S. 940, the Southern Nevada Higher Education
Lands Act of 2009. S. 940 would convey, without consideration, three
parcels totaling 2,410 acres to the Nevada System of Higher Education
(NSHE) to meet the needs of southern Nevada's rapidly growing college
and university system. The BLM supports the goals of S. 940, but would
like to work with Senator Reid, the bill's sponsor, on amendments to
ensure the conveyances are consistent with the Recreation and Public
Purposes Act (R&PP), and to address certain parcel-specific management
needs associated with the conveyances.
BACKGROUND
The Nevada System of Higher Education serves more than 71,000
students in southern Nevada, and its enrollment is expected to grow by
more than 20 percent over the next 10 years. Three institutions of
higher education serve southern Nevada residents: the University of
Nevada, Las Vegas; the College of Southern Nevada, located in Clark
County; and Great Basin College, located in Pahrump in rural Nye
County. All three of these institutions are operating near capacity.
The NSHE is seeking to increase their capacities to provide for future
growth and improve access to higher education opportunities in southern
Nevada.
The communities of Las Vegas and Pahrump are nearly surrounded by
BLM-administered lands. Under the direction of the 1998 Southern Nevada
Public Land Management Act (SNPLMA), as amended, and through the BLM's
land use planning process, the BLM has identified public lands within
and near these communities for potential disposal from public ownership
to help meet urban growth needs. The three public land parcels proposed
for conveyance by S. 940 have been identified for disposal through
these processes.
The R&PP Act authorizes the Secretary of the Interior to lease or
convey public lands at nominal cost for recreational and public
purposes, including educational facilities, municipal buildings, golf
courses, campgrounds, and other facilities benefiting the public.
Commercial uses may be allowable under the R&PP Act in limited
circumstances, if revenues from concessions go toward site management
and use.
S. 940
S. 940 proposes to convey to the NSHE, without consideration, all
right, title, and interest of the United States to three parcels
detailed on the maps prepared at the request of Senator Reid, dated
July 11, 2008. The bill requires the NSHE to pay any administrative
costs associated with the conveyances.
The bill requires the conveyed lands to be used for educational and
recreational purposes related to the NSHE, and it allows residential
and commercial development that would generally be associated with an
institution of higher education. The bill also contains a reversionary
clause that provides for the land to revert to the United States, at
the discretion of the Secretary, if it ceases to be used for the higher
education system.
As a matter of policy, the BLM supports working with State and
local governments to resolve land tenure adjustments that advance
worthwhile public policy objectives. In general, the BLM supports
conveyances if the lands are to be used for purposes consistent with
the R&PP Act and includes a reversionary clause to enforce that
requirement. It is not clear, however, if the residential or commercial
uses envisioned by the bill would be consistent with the R&PP Act. The
BLM recommends that the legislation be clearly amended to ensure
consistency with the R&PP Act.
S. 940 would convey two parcels that are located in urban settings
near Las Vegas in Clark County. One parcel contains approximately 40
acres and would be utilized to meet the expansion needs of the College
of Southern Nevada. This parcel is essentially a vacant, weedy field
surrounded by major roads near a freeway entrance. It contains no
significant natural resource values.
The second parcel contains approximately 2,085 acres and would be
used for the expansion of the University of Nevada, Las Vegas. This
parcel is located in a rapidly urbanizing area on the northern edge of
Las Vegas. Its eastern boundary abuts Nellis Air Force Base and its
northern boundary abuts the Nevada Desert Wildlife Refuge managed by
the U.S. Fish and Wildlife Service.
Because of their proximity to Nellis Air Force Base, these lands
may have been impacted by past military training activities and may
contain hazardous materials. For this reason, S. 940 requires that the
Secretary receive a certificate of acceptable remediation of
environmental conditions on the parcel before initiating the
conveyance, and it releases the United States from any liability
arising from prior land uses. The bill also requires, under Sec. 4(2),
that the NSHE enter into a binding agreement with Nellis Air Force Base
to address any site development issues and to preserve the Base's long-
term capability. Because this parcel also borders the Nevada Desert
Wildlife Refuge, we would like to work with the sponsor to ensure that
site development along the shared boundary would be sensitive to and
compatible with refuge values.
S. 940 would also convey a parcel of approximately 285 acres,
located just outside of Pahrump in Nye County, Nevada, which would be
utilized for the expansion of Great Basin College. This parcel borders
an existing BLM fire station and helipad, and certain types of adjacent
development could affect the safe operation of this facility. This
parcel also contains Carpenter Canyon Road, which is heavily utilized
for recreation activities and provides access to the west side of the
Spring Mountain National Recreation Area, which is managed by the U.S.
Forest Service. The BLM would like to work with the sponsor to ensure
that the bill provides for the continuation of these existing land uses
and access to National Forest System land. We also note that this
parcel contains desert tortoise habitat. If conveyed, the NSHE would
need to prepare a Habitat Conservation Plan, obtain an incidental take
permit, and meet other requirements of the U.S. Fish and Wildlife
Service before site development could proceed.
Finally, under S. 940, the NSHE will assist the BLM in sharing
information with students and Nevada citizens about public land
resources and the BLM's role in managing public lands. The BLM looks
forward to working with the NSHE on this constructive, collaborative
effort.
CONCLUSION
Thank you for the opportunity to testify. The BLM looks forward to
working with the bill's sponsor and the Committee to address the needs
of the Nevada System of Higher Education.
S. 1272
Thank you for inviting the Department of the Interior to testify on
S. 1272, the Devil's Staircase Wilderness Act of 2009. The Bureau of
Land Management (BLM) supports S. 1272 as it applies to lands we
manage, and we would like to work with the sponsor and the Committee on
minor refinements to the bills.
BACKGROUND
The proposed Devil's Staircase Wilderness, near the coast of
southwestern Oregon, is not for the faint of heart. Mostly wild land
and difficult to access, the Devil's Staircase reminds us of what much
of this land looked like hundreds of years ago. A multi-storied forest
of Douglas fir and western hemlock towers over underbrush of giant
ferns, providing critical habitat for the threatened Northern Spotted
Owl and Marbled Murrelet. The remote and rugged nature of this area
provides a truly wild experience for any hiker.
S. 1272
S. 1272 proposes to designate nearly 30,000 acres as wilderness, as
well as portions of both Franklin Creek and Wasson Creek as components
of the Wild and Scenic Rivers System. The majority of these
designations are on lands managed by the U.S. Forest Service. The
Department of the Interior defers to the U.S. Department of Agriculture
on those designations.
Approximately 6,100 acres of the proposed Devil's Staircase
Wilderness and 4.2 miles of the Wasson Creek proposed designation are
within lands managed by the BLM. The Department of the Interior
supports these designations and would like to work with the sponsor and
the Committee on minor boundary modifications to improve manageability.
We note that while the vast majority of the acres proposed for
designation are Oregon &California (O&C) lands, identified under the
1937 O&C Lands Act for timber production, however, the BLM currently
restricts timber production on these lands. These lands are
administratively withdrawn from timber production by the BLM, either
through designation as an Area of Critical Environmental Concern or
through other classifications. Additionally, the BLM estimates that
nearly 90 percent of the area proposed for designation is comprised of
forest stands that are over 100 years old, and provides critical
habitat for the threatened Marbled Murrelet and Northern Spotted Owl.
The 4.2 miles of Wasson Creek would be designated as a wild river
to be managed by the BLM under S. 1272. The majority of the acres
protected through this designation would be within the proposed Devil's
Staircase wilderness designation, though 752 acres would be outside the
proposed wilderness on adjacent BLM lands.
The designations identified on BLM-managed lands under S. 1272
would result in only minor modification of current management of the
area and would preserve these wild lands for future generations.
CONCLUSION
Thank you for the opportunity to testify in support of these
important Oregon designations. The Department of the Interior looks
forward to working with the sponsors and the Committee on minor
modifications to the legislation and to welcoming these units into the
BLM's National Landscape Conservation System.
S. 1689
Thank you for inviting the Department of the Interior to testify on
S. 1689, the Organ Mountains-Desert Peaks Wilderness Act. The
Administration supports S. 1689, which designates two new National
Conservation Areas (NCAs) and eight new wilderness areas in Doa Ana
County, New Mexico. We welcome this opportunity to enhance protection
for some of America's treasured landscapes.
BACKGROUND
Dona Ana County is many things--the county with the second highest
population in New Mexico; home to Las Cruces, one of the fastest
growing cities in the country; and a land of amazing beauty. Towering
mountain ranges, dramatic deserts, and fertile valleys characterize
this corner of the Land of Enchantment. The Organ Mountains, east of
the city of Las Cruces, dominate the landscape. Characterized by steep,
angular, barren rock outcroppings, the Organ Mountains rise to nearly
9,000 feet in elevation and extend for 20 miles, running generally
north and south. This high-desert landscape within the Chihuahua Desert
contains a multitude of biological zones--mixed desert shrubs and
grasslands in the lowlands ascending to pinon and juniper woodlands,
and finally to ponderosa pines at the highest elevations. Consequently,
the area is home to a high diversity of animal life, including
peregrine falcons and other raptors, as well as mountain lions and
other mammals. Abundant prehistoric cultural sites, dating back 8,000
years, dot the landscape. The Organ Mountains are a popular recreation
area, with multiple hiking trails, a popular campground, and
opportunities for hunting, mountain biking, and other dispersed
recreation.
On the west side of Las Cruces are the mountain ranges and peaks of
the Robledo Mountains and Sierra de las Uvas, which make up the Desert
Peaks area. These desert landscapes are characterized by numerous mesas
and buttes interspersed with deep canyons and arroyos. Mule deer,
mountain lions, and golden eagles and other raptors are attracted to
this varied landscape. Prehistoric cultural sites of the classic
Mimbres and El Paso phases are sprinkled throughout this region along
with historic sites associated with more recent settlements. This area
is also home to the unusual Night-blooming Cereus--seeing the one-
night-a-year bloom in its natural surroundings is a rare delight.
Finally, the area provides varied disbursed recreational opportunities.
To the southwest of Las Cruces, near the Mexican border, is the
Potrillo Mountains Complex. The geologic genesis of these mountains is
different from that of the Organ Mountains and Desert Peaks area.
Cinder cones, volcanic craters, basalt lava flows, and talus slopes
characterize this corner of Dona Ana County. These lands are famous for
their abundant wildlife, and contain significant fossil resources. A
well-preserved giant ground sloth skeleton, now housed at Yale
University, was discovered in this area. The sheer breadth of these
lands and their open, expansive vistas offer remarkable opportunities
for solitude.
Senator Bingaman and a wide range of local governments,
communities, user groups, conservationists, and Federal agencies have
worked collaboratively to develop this consensus proposal to protect
all of these special areas.
S. 1689
S. 1689 proposes to designate two new NCAs and eight wilderness
areas in Dona Ana County, New Mexico, which would be included in BLM's
National Landscape Conservation System. The legislation also releases
over 16,000 acres from wilderness study area (WSA) status, transfers
land from the Department of the Defense (DOD) to the BLM for inclusion
within an NCA, and withdraws certain additional lands from disposal,
mining, and mineral leasing.
Section 3 of S. 1689 designates eight wilderness areas totaling
approximately 259,000 acres. The BLM supports the proposed wilderness
designations in S. 1689. We would like the opportunity to work with the
Chairman on minor boundary modifications for manageability, as well as
modifications to some minor technical provisions.
These new wilderness designations are in three distinct areas of
the county. First, within the proposed Organ Mountains NCA, 19,400
acres would be designated as the Organ Mountains Wilderness.
The second area is within the Desert Peaks National Conservation
Area proposed in this legislation. The bill proposes three designations
in this area: Broad Canyon Wilderness (13,900 acres); Robledo Mountains
Wilderness (17,000 acres); and Sierra de las Uvas Wilderness (11,100
acres). These three areas are within the 33,600-acre Desert Peaks NCA.
Within the Robledo Mountains Wilderness, a small corridor of
approximately 100 acres has been designated as ``potential wilderness''
by section 3(g) of S. 1689. The lands included in this potential
wilderness contain a communications right-of-way, and it is our
understanding that it is the intention of the Chairman to allow the
continued use of this site by the current lessees. However, in the
event that the communications right-of-way is relinquished, these lands
would be reclaimed and become part of the wilderness area. We support
this provision.
Finally, the Potrillo Mountains complex in the southwest corner of
Dona Ana County includes: Aden Lava Flow Wilderness (27,650 acres);
Cinder Cone Wilderness (16,950 acres); Potrillo Mountains Wilderness
(143,450 acres); and Whitethorn Wilderness (9,600 acres). Both the
Potrillo Mountains Wilderness and Whitethorn Wilderness extend into
adjacent Luna County. The legislation releases a substantial swath of
land along the border with Mexico that is currently designated as WSA
from WSA restrictions. The release contemplated by the legislation
would allow greater flexibility for law enforcement along the border.
We support this WSA release.
Two National Conservation Areas are established by section 4 of the
legislation--the Organ Mountains NCA and the Desert Peaks NCA. As noted
above, both of these NCAs include proposed designated wilderness within
their boundaries. Each of the NCAs designated by Congress and managed
by the BLM is unique. However, all NCA designations have certain
critical elements in common, including withdrawal from the public land,
mining, and mineral leasing laws; off-highway vehicle use limitations;
and language that charges the Secretary of the Interior with allowing
only those uses that further the purposes for which the NCA is
established. Furthermore, NCA designations should not diminish the
protections that currently apply to the lands. Section 4 of the bill
honors these principles, and the BLM supports the designation of both
of these NCAs.
Much of the lands proposed for both wilderness and NCA designations
have been historically grazed by domestic livestock, and grazing
continues today. Many of BLM's existing wilderness areas and NCAs
throughout the West are host to livestock grazing, which is compatible
with these designations. This use will continue within the NCAs and
wilderness areas designated by S. 1689.
Section 4(f) of the bill transfers administrative jurisdiction of
2,050 acres from DOD to the BLM. These lands, currently part of the
Army's Fort Bliss, would be incorporated into the Organ Mountains NCA.
The lands to be transferred include the dramatic and scenic Fillmore
Canyon as well as the western slopes of Organ Peak and Ice Canyon. We
would welcome these lands into BLM's National System of Public Lands,
and we would like to work with the Committee and DOD to ensure that the
transfer is conducted consistent with other DOD land transfers to BLM.
Section 6 of S. 1689 concerns the recently established Prehistoric
Trackways National Monument, just southeast of the proposed Desert
Peaks NCA. The Monument was established in Title II, Subtitle B of the
Omnibus Public Land Act (Public Law 111-11) signed by the President on
March 30 of this year. Section 6 of S. 1689 addresses recent additional
discoveries of 280 million-year old reptile, insect, and plant fossils
on adjacent BLM-managed lands by adding 170 acres to the Monument. The
BLM supports this expansion of the Monument.
Section 5(d) of the legislation provides for the withdrawal of two
parcels of BLM-managed lands from the land, mining, and mineral leasing
laws. The parcel designated as ``Parcel A'' is approximately 1,300
acres of BLM-managed lands on the eastern outskirts of Las Cruces. This
parcel is a popular hiking and mountain biking site, and provides easy
access to the peak of the Tortugas Mountains. From here, visitors can
take in spectacular views of Las Cruces and the Rio Grande Valley. We
understand that Chairman Bingaman's goal is to ensure that these lands
are preserved for continued recreational use by Las Cruces residents.
The legislation provides for a possible lease of these lands to a
governmental or nonprofit agency under the Recreation and Public
Purposes Act. The larger, 6,300 acre parcel, designated as ``Parcel
B,'' lies on the southern end of the proposed Organ Mountains NCA. It
is our understanding that Chairman Bingaman considered adding this
parcel to the NCA because of important resource values. However, a
multitude of current uses make inclusion of this parcel in the NCA
inconsistent with the purposes established for the NCA. Therefore, the
limited withdrawal of the parcel will better serve to protect the
resources within this area without negatively affecting the current
uses of the area. The BLM supports the withdrawal of both of these
parcels.
Finally, the BLM, along with many partners, has undertaken
restoration efforts on more than one million acres of degraded
landscapes in New Mexico, with the goal of returning grasslands,
woodlands, and riparian areas to their original healthy conditions. We
would like to work with the Chairman to develop language to support the
BLM in implementing appropriate land restoration activities that will
benefit watershed and wildlife health within these designated areas.
CONCLUSION
Thank you for the opportunity to testify in support of S. 1689.
Both the BLM and the Department welcome opportunities to engage in
important discussions such as this that advance the protection of
treasured American landscapes. Passage of this legislation will ensure
that generations of New Mexicans and all Americans will be able to
witness a golden eagle soar over the Sierra de las Uvas, hike the
landmark Organ Mountains, or hunt in the volcanic outcroppings of the
Potrillo Mountains.
Senator Wyden. Thank you, Ms. Burke. I know we'll have some
in just a few minutes.
Mr. Jensen.
STATEMENT OF JAY JENSEN, DEPUTY UNDER SECRETARY FOR FORESTRY,
NATURAL RESOURCES AND ENVIRONMENT, DEPARTMENT OF AGRICULTURE
Mr. Jensen. Thank you. It's good to be back in front of the
committee again.
Mr. Chairman, Ranking Member Barrasso, members of the
subcommittee: Thank you very much for this opportunity to speak
to you today about bills that address wilderness designations
in the coastal Douglas fir forest of Oregon and Native land
claims in Alaska. My remarks will address the designation of
the Devil's Staircase and then the Southeast Alaska Native Land
Entitlement Act.
Devil's Staircase. The proposed designations would enhance
the national wilderness preservation system and our national
wild and scenic rivers system while preserving a unique
landscape feature, the Devil's Staircase, a stairstep waterfall
on Wasson Creek. The Department and the United States Forest
Service support these designations of the national forest
system lands. All these national forest system lands would be
designated as wilderness and classified as late successional
reserves, meaning they provide for the preservation of old
growth habitat.
The forest has older stands of doug fir and western
hemlock, with red alder in riparian areas. All three of these
tree species are underrepresented in the national wilderness
preservation system relative to their abundance in the national
forest lands in Washington and Oregon. The proposed Devil's
Staircase wilderness and wild and scenic river designation for
Wasson and Franklin Creeks preserve an untrammeled
representation of the Oregon Coast Range and we support those
designations--as you said, Mr. Chairman, the perfect
representation of the rugged, pristine, and wild
characterization of Oregon.
Moving on, I'd like to open my testimony about the
Southeast Alaska Native Land Entitlement Finalization Act by
stating the Department and the agency approach regarding
decisions about the Tongass National Forest, mindful of the
Native Alaskan way of life, cognizant of the rich and deep
tribal history, traditions, and rights on the Tongass
landscape.
We support the timely and equitable distribution of the
Alaska Native Claims Settlement Act. We are also very focused
on the Department and agency's role in providing sustainable
support for diversity of economic opportunities for Alaskan
communities and Native Alaskans. I recently got to visit
Southeast Alaska with my rural development counterpart, Deputy
Under Secretary Victor Vasquez in Rural Development. While
there, we co-hosted two economic diversity workshops in Sitka
and Ketchikan to hear directly from members of the community
about how USDA can support the people of Southeast Alaska.
Similar workshops are now being held in every southeastern
community, 32 in all.
We want to convey our commitment to working with the
citizens of the region to find solutions that they want to
pursue. The Department views this legislation within the
broader context of the challenges facing the Tongass National
Forest and Southeast Alaska. We support many of the goals of S.
881 and are committed to working collaboratively with Congress,
Sealaska, and other community partners to find a solution that
works.
As we step into this process, we are mindful of how
complicated Tongass National Forest issues can be, how one
issue, if not addressed in the context of the broader
landscape, can have significant implications and repercussions.
I will turn to my written testimony for further details
speaking to our concerns with the bill, but I will end my
comments here by sharing a little further, that recently I got
a chance to attend the Tongass Future roundtable meeting that
was held last week up in Anchorage. This dedicated
collaborative group is dedicated to forging a comprehensive
vision for the Tongass National Forest. While we know that that
process has its challenges, the USDA supports this roundtable
as the kind of forum needed to develop a shared vision for
these lands.
In our brief time so far in this administration, we believe
it would be difficult to extract the lands identified in S. 881
from the broader attempt to achieve a comprehensive and
equitable solution for all those who have rights, interests,
and investments in their use and management.
With that, I will conclude my remarks and look forward to
your questions.
[The prepared statement of Mr. Jensen follows:]
Prepared Statement Jay Jensen, Deputy Under Secretary for Forestry,
Natural Resources and Environment, Department of Agriculture
S. 1272 AND S. 881
Mr. Chairman, Honorable Ranking Member and distinguished members of
the Committee, thank you for the opportunity to speak with you today
about bills that address Wilderness designations in the coastal
Douglas-fir forests of Oregon and Native land claims in Alaska. I will
open my testimony by addressing the designation of Devil's Staircase
and followed by the Southeast Alaska Native Land Entitlement
Finalization Act.
S. 1272 would designate an area known as the Devil's Staircase as
Wilderness under the National Wilderness Preservation System. In
addition, S. 1272 would designate segments of Wasson and Franklin
Creeks in the State of Oregon as wild rivers under the Wild and Scenic
Rivers Act. The Department supports the designation of the Devil's
Staircase Wilderness as well as the Wild and Scenic River designations
on National Forest System lands. We would like to offer minor
modifications to S. 1272 that would enhance wilderness values and
improve our ability to manage resources in the area.
Devil's Staircase Wilderness Designation
The Devil's Staircase area lies in the central Oregon Coast Range,
north of the Umpqua River and south of the Smith River. Elevations in
the area range from near sea level to about 1,600 feet. The area is
characterized by steep, highly dissected terrain. It is quite remote
and difficult to access. A stair step waterfall on Wasson Creek is the
source of the name Devil's Staircase.
The proposed Wilderness encompasses approximately 29,600 acres of
National Forest System (NFS) and Bureau of Land Management (BLM) lands.
NFS lands are approximately 23,500 acres, and BLM lands are
approximately 6,100 acres. Approximately 7,800 acres of the NFS lands
are within the Wasson Creek Undeveloped Area under the Forest Plan for
the Siuslaw National Forest and were evaluated for wilderness
characteristics in the 1990 Siuslaw National Forest Land and Resource
Management Plan. While the Forest Service remains committed to the
forest planning process, the agency did not have the opportunity to
recommend wilderness during the development of the 1990 Siuslaw
National Forest Land and Resource Management Plan. Congress passed
Public Law 98-328, the Oregon Wilderness Act of 1984. That Act provided
specific language regarding the wilderness recommendation process that
exempted the Forest Service from having to further review a wilderness
option for unroaded lands in the forest planning process since Congress
had just acted on the matter. The Act does specify that during a forest
plan revision the agency be required to revisit the wilderness options.
For this reason, the Siuslaw National Forest Land and Resource
Management Plan did not include a wilderness recommendation. The 1990
Record of Decision determined that the Wasson Creek inventoried
Roadless Area would be managed for undeveloped recreation
opportunities.
All NFS lands that would be designated as Wilderness are classified
as Late Successional Reserve under the Northwest Forest Plan, which
amended the Siuslaw National Forest Land and Resource Management Plan
in 1994. This land allocation provides for the preservation of old
growth (late successional) habitat. There are no planned resource
management or developed recreation projects within the NFS portion of
the lands to be designated as Wilderness.
Most of the area is forested with older stands of Douglas-fir and
western hemlock, and red alder in riparian areas. All three tree
species are under-represented in the National Wilderness Preservation
System, relative to their abundance on NFS lands in Washington and
Oregon. These older stands provide critical habitat and support nesting
pairs of the northern spotted owl and marbled murrelet, which are
listed as Threatened species under the Endangered Species Act.
The proposed Devil's Staircase Wilderness provides an outstanding
representation of the Oregon Coast Range and would enhance the National
Wilderness Preservation System. The Oregon Coast Range has been largely
modified with development, roads, and logging. Three small wilderness
areas currently exist along the Oregon portion of the Pacific Coast
Range, and the proposed Devil's Staircase Wilderness would more than
double the acres of old-growth coastal rainforest in a preservation
status. Wilderness designation would also preserve the Devil's
Staircase, which is a unique landscape feature.
Road and Road Decommissioning
There are approximately 24 miles of National Forest System roads
within the proposal boundary, 10.5 miles of which are not needed for
administrative use and would be decommissioned or obliterated.
The remaining 13.5 miles of road comprise Forest Service Road 4100,
which bisects the proposed wilderness. The Department recommends the
Committee consider including in the Wilderness designation Forest
Service Road 4100 to be managed as a non-motorized, foot and/or horse
trail compatible with wilderness uses. Removing the road would result
in the Department being able to manage the wilderness as a whole rather
than two halves. The road is currently brushy and difficult to travel,
making restoration of a wilderness setting a viable option. The Forest
Service would use a minimum-tool analysis to determine the appropriate
tools necessary to complete activities associated with the road.
Wild and Scenic River Designations
S. 1272 would also designate approximately 10.4 miles of streams on
National Forest System lands as part of the National Wild and Scenic
Rivers System: 5.9 miles of Wasson Creek and 4.5 miles of Franklin
Creek, both on the Siuslaw National Forest. Both Wasson and Franklin
Creeks have been identified by the National Marine Fisheries Service
(NMFS) as critical habitat for coho salmon (Oregon Coast ESU
[Evolutionarily Significant Unit] of coho salmon), a Threatened species
under the Endangered Species Act.
The Department defers to the Department of the Interior concerning
the proposal to designate the 4.2-mile segment of Wasson Creek flowing
on lands administered by BLM.
The Forest Service conducted an evaluation of the Wasson and
Franklin Creeks to determine their eligibility for wild and scenic
rivers designation as part of the forest planning process for the
Siuslaw National Forest. However, the agency has not conducted a wild
and scenic river suitability study, which provides the basis for
determining whether to recommend a river as an addition to the National
System. Wasson Creek was found eligible as it is both free-flowing and
possesses outstandingly remarkable scenic, recreational and ecological
values. The Department supports designation of the 5.9 miles of the
Wasson Creek on NFS lands based on the segment's eligibility.
At the time of the evaluation in 1990, Franklin Creek, although
free flowing, was found not to possess river-related values significant
at a regional or national scale and was therefore determined ineligible
for designation. Subsequent to the 1990 eligibility study, the Forest
Service has found that Franklin Creek provides critical habitat for
coho salmon, currently listed as Threatened under the Endangered
Species Act, and also serves as a reference stream for research because
of its relatively pristine character, which is extremely rare in the
Oregon Coast Range. The Department does not oppose its designation.
Designation of the proposed segments of both Wasson and Franklin Creeks
is consistent with the proposed designation of the area as wilderness.
The actual Devil's Staircase landmark is located on Wasson Creek.
We would like to work with the bill sponsors and the committee on
several amendments and map revisions that we believe would enhance
wilderness values and improve the bill.
southeast alaska native land entitlement finalization act
I will now discuss the Department of Agriculture's views on and
approach to S.881, the Southeast Alaska Native Land Entitlement
Finalization Act. We recognize and support the timely and equitable
distribution of land to Alaska Native Corporations, including Sealaska
Corporation (Sealaska), under the Alaska Native Claims Settlement Act
(ANCSA). USDA also understands and supports Sealaska's interest in
acquiring lands that have economic and cultural value. We defer to the
Department of the Interior for an analysis of this bill as it relates
to ANCSA implementation as it affects the Department of the Interior.
The Department views this legislation in the broader context of the
challenges facing the Tongass National Forest (Tongass) and Southeast
Alaska, which include issues facing Native Alaskans and Sealaska
Corporation. Recently, I joined my rural development counterpart, USDA
Deputy Under Secretary Victor Vasquez, on a visit to the region. While
there, we co-hosted two economic diversity workshops to better
understand how USDA can support a diversified economy and range of
opportunities for Southeast Alaskans. USDA regional staff, led by the
Forest Service, committed at the close of those workshops to hold
similar workshops in every community in Southeast Alaska; those
sessions are happening now. We are focused on developing USDA's role in
providing long-term, sustainable support for a diversity of economic
opportunities for Alaskan communities and Native Alaskans.
While the USDA supports a number of the goals of this legislation
and is committed to working collaboratively with Sealaska, Congress,
and other community partners and interests to find a solution that
works, we have a number of concerns that we want to work through with
the parties. My testimony today will focus on outlining those concerns.
Background
By enacting ANCSA, Congress balanced the need for a fair and just
settlement of Alaska Native aboriginal land claims with the needs for
use of the public lands in Alaska. Congress' approach to resolving
Alaska Native land claims in ANCSA is unique in its reliance on the
formulation of native corporations. To manage the federal land
entitlement conveyed to Alaska Natives, ANCSA created two tiers of
native corporations: village corporations, of which there are over 200,
and the larger regional corporations, of which there are thirteen, with
twelve holding title to land. Federal lands were withdrawn to allow
village corporations to select lands traditionally used by Alaska
Native villagers. The twelve regional corporations were composed, as
far as practicable, of Native shareholders having a common heritage who
shared common interests within certain geographic regions. As the
regional corporation representing Southeast Alaska Natives, Sealaska is
required to fulfill its land entitlement from within the ten Southeast
Alaska village withdrawal areas that represent the lands traditionally
used by Southeast villagers and Sealaska's current Native shareholders.
Congress generally defined the land entitlements of both village
and regional corporations, but provided for some differentiation among
corporations to consider individual village or regional circumstances.
One such consideration was the reduction of land entitlement to
Sealaska to reflect a previous award of damages granted to Sealaska's
primary shareholders, the Tlingit and Haida Tribes of Southeast Alaska.
Those tribes brought early suit against the United States to
recover the value of land and property rights appropriated by the
United States in Southeast Alaska. The suit was settled before the
passage of ANCSA by a 1968 U.S. Court of Claims decision awarding
damages of $7.5 million dollars to the Tlingit and Haida Indians of
Alaska. The Court of Claims decision is based on the fair market value
of the land expropriated by the United States at the time the lands
were taken, as determined by valuing the highest and best use of the
land and resources. Congress recognized this prior settlement in ANCSA
and limited Sealaska's entitlement.
Sealaska is entitled to receive lands under Section 14(h)(8) of
ANCSA, which allocates and provides for conveyance of land from the
remaining portion of two million acres that is not otherwise conveyed
as entitlement under the other subsections of 14(h) to be allocated
among the twelve regional corporations on the basis of population. The
BLM is responsible for determining Sealaska's final allocation under
Section 14(h)(8). However, until other all other 14(h) entitlements are
completely allocated, the BLM can only estimate what Sealaska's final
entitlement will be. Based on the most recent information provided to
the Forest Service from the BLM (October, 2008), Sealaska has been
conveyed approximately 290,774 acres under Section 14(h)(8). Its
remaining 14(h)(8) entitlement is63,535 acres plus 21.85% of any future
allocation pursuant to this section. Thus, Sealaska has received more
than 80% of its Section 14(h)(8) entitlement. These lands have been
selected from the original federal land base withdrawn for selection
pursuant to ANCSA. Currently, Sealaska has selected 170,000 acres from
within the ANCSA withdrawal area, from which Sealaska has prioritized
its remaining to 78,898-acre entitlement pursuant to Section 403 of the
Alaska Transfer Acceleration Act. Indeed, Sealaska can fulfill all of
its remaining actual, and potential, entitlement from the 170,000 plus
acres of currently selected lands.
S.881
S.881 would amend ANCSA to allow Sealaska to select and receive
conveyance from lands administered by the Forest Service that are
outside of the original withdrawal areas established by the Act in
1971, and that would create new and unique categories of selections not
available to other regional corporations. Specifically, S.881directs
directs the Secretary of the Interior to convey to Sealaska three
categories of lands from within the Tongass: economic development
lands, sacred site lands, and Native futures sites. None of these
categories of land selections currently appear in ANCSA and other
Native Corporations are not entitled to make such selections. The
Department is concerned that S.881 would provide an impetus for other
regional corporations to reopen land claims at this critical final
stage in the land transfer program.
The pool of lands identified in S.881 from which Sealaska would
select its economic development lands includes significant areas of
productive old-growth timber and major areas of young-growth timber.
While the specific lands Sealaska will select as economic development
lands from this pool are not known, we have a number of concerns
regarding potential consequences these selections would have on USDA's
efforts to develop a long-term, sustainable plan for supporting a
diversity of economic opportunities for Alaskan communities and Native
Alaskans. These concerns reflect the interconnected nature of the
problems facing Southeast Alaskans: legislation that pulls out one
piece of the puzzle makes it more challenging to find a comprehensive
solution that is responsive to the concerns of local communities and
conservation groups while also working for Sealaska.
In previous years, the Tongass National Forest has supported
communities in Southeast Alaska through its timber program. In
exploring a diversity of opportunities to support the communities and
people of Southeast Alaska, the Forest Service is seeking to
expeditiously transition that program away from reliance on sales of
old-growth timber in roadless areas to an integrated program of work
focused on restoration, development of biomass opportunities, and sales
of young-growth timber in roaded areas. Indeed, the Tongass Futures
Roundtable, a Southeast Alaska collaborative group that includes
villages, industry, native corporations, the Forest Service and the
State of Alaska, is addressing the integration of forest restoration
and broad economic development during the transition from old-growth
timber sales.
This shift will allow stakeholders in the region to come together
to support healthy, vibrant communities and forested lands, and sustain
the ability of Native Alaskans to pursue their way of life,
communities, and culture, as they have for over 10,000 years. However,
this transition will require a reliable supply of young-growth timber
from lands having the infrastructure (e.g., roads, proximity to mills)
to support an economically viable industry.
The lands identified in S.881 for selection by Sealaska are largely
found on Prince of Wales Island. These lands represent a significant
part of the Forest Service's roaded land base identified in the Tongass
Land Management Plan as open to timber harvest. This land base is also
closest to one of the few remaining large mills in the Tongass National
Forest, as well as other smaller mills.
The lands involved in this legislation, therefore, are central to
the Forest Service's ability to provide a sustainable supply of young-
growth timber to facilitate transition of its timber program from old-
growth timber harvest to restoration work, biomass, and young-growth
harvest.
Another concern is that the old-growth reserves found within the
land pool identified in S.881 are central to the Tongass National
Forest's conservation strategy as outlined in its Land Management Plan.
The amended TLMP established a comprehensive, science-based
conservation strategy to address wildlife sustainability and viability.
This strategy includes a network of interconnected, variably sized old-
growth reserves across the forest designed to maintain the composition,
structure and function of the old-growth ecosystem. Conveyance of
economic development lands as proposed in S.881 would likely decrease
the Tongass' ability to meet the TLMP conservation strategy due to the
likely inability to replace key lands associated with old-growth
habitats.
It is also important to note that these lands overlap those of
interest to the State of Alaska's Mental Health Trust, as well as to
the ``landless tribes'' who did not receive an original land
entitlement in ANCSA. It may be difficult to extract these lands while
providing a comprehensive and equitable solution for all who are
interested or invested in their use and management.
Although the proposed legislation states that implementation of the
bill and conveyance of lands to Sealaska would not require an amendment
or revision of TLMP, this language does not resolve land management
issues that likely will arise regarding TLMP implementation. Regardless
of whether an amendment or revision of TLMP is required, if the
significant management strategies that form the basis of the current
plan are modified through enactment of S.881, TLMP cannot be
implemented as currently intended.
Enacting S.881 could also affect the ability to provide for
continuous public access for recreation and subsistence uses on the
Tongass. Among other things, the legislation provides that Sealaska has
the right to regulate access on certain lands where the public use is
incompatible with Sealaska's natural resource development, as
determined by Sealaska. The Native futures sites identified for
conveyance in the legislation include some of the most significant
recreation sites that are critical to both commercial outfitter and
guide use and public recreational use. The ability of the Tongass to
provide for public and commercial recreation and tourism activities
would be limited by enactment of the legislation. S.881 would also
remove covenants on historic and cemetery sites conveyed under ANCSA
Section 14(h)(1), which restrict activity that is incompatible with
these sites' cultural or historic values. The Department believes this
would provide an opportunity for other regional corporations to request
removal of similar restrictions from other Native corporation sites,
further negatively affecting the land transfer program. Similarly, the
legislation does not provide for the ability to protect significant
karst and cave resources that may be located on lands conveyed under
S.881 to Sealaska.
AMENDMENTS TO THE TRIBAL FOREST PROTECTION ACT AND THE NATIONAL
HISTORIC PRESERVATION ACT
Finally, the legislation includes amendments to the Tribal Forest
Protection Act (TFPA) and the National Historic Preservation Act (NHPA)
to consider lands owned by any Alaska Native Corporation as tribal-
owned lands for the purposes of these Acts, the implications of which
are described below. The Department would be willing to discuss ANCSA;
however, we view the amendments to the TFPA and NHPA as unrelated to
fulfilling the remaining acres of the ANSCA entitlement.
The TFPA is intended to strengthen Forest Service relationships
with federally recognized Tribes and to restore forested lands by
authorizing the Secretary of Agriculture to enter into contracts and
agreements with Tribes to carry out certain projects on the National
Forests to reduce threats to adjacent or bordering lands owned by
Tribes. The bill would extend the benefits of TFPA beyond those Tribes
currently listed on the official list of federally acknowledged tribes
in the contiguous 48 states and in Alaska: Indian Entities Recognized
and Eligible To Receive Services from the United States Bureau of
Indian Affairs. The Alaska Native Corporations are not Tribal
Governments as recognized by the BIA, and they do not have the
capability of having the Federal government hold their lands in trust.
S.881 would amend the National Historic Preservation Act to include
Alaska Native Corporations. Tribal lands as now defined in the NHPA
include those within the boundaries of American Indian Reservations,
which are governed by a Tribal Council duly elected by the Tribal
members. These lands are managed for the benefit of Tribal members.
Alaska Native Corporation lands, however, are managed by a corporate
board of directors to provide a profit for the benefit of its
shareholders.
The inclusion of Alaska Native Corporations as parties entitled to
the benefits prescribed under both the TFPA and NHPA is at odds with
the intent to provide tribes with certain benefits prescribed by these
Acts.
ENVIRONMENTAL MITIGATION AND INCENTIVES
With respect to Section 5(b) of S.881 expressly authorizing
environmental mitigation and incentives, we support the provisions that
would allow any land conveyed to be eligible for participation in
carbon markets or other similar programs, incentives, or markets
established by USDA.
CONCLUSION
In conclusion, I want to note comments we have received from local
residents and Alaska Natives regarding enactment of this legislation.
Residents are concerned that the legislation will affect subsistence
use and will affect public access for recreation, hunting, fishing, and
gathering. Residents in communities throughout Southeast Alaska are
surrounded by, and dependent upon, the Tongass for their livelihood and
well-being and they seek ``closure'' to the decades-long forest
planning process. Many are concerned the legislation will disrupt
implementation of the amended TLMP. Some are concerned with the
environmental consequences of the legislation, especially related to
sustainable timber harvest and management and to the implementation of
the Forest Service's conservation strategy. Finally, a number of
comments reflect the interconnected nature of the problems facing
Southeast Alaskans: legislation that pulls out one piece of the puzzle
makes it more challenging to find a comprehensive solution that is
responsive to the concerns of local communities and conservation groups
while also working for Sealaska. Last week I attended a meeting of the
Tongass Futures Roundtable, the collaborative group dedicated to
forging a comprehensive vision for the Tongass National Forest. While
that collaborative process presents its own challenges, USDA supports
the Tongass Futures Roundtable and its efforts to find a shared vision
for the land that we all love.
USDA and the Forest Service are prepared and eager to work with all
parties to find a solution that works.
This concludes my testimony. I am happy to answer any questions
that you may have on Devil's Staircase Wilderness Act or the Southeast
Alaska Native Land Entitlement Act.
Senator Wyden. Thank you very much.
I know many of my colleagues have questions for you, Ms.
Burke, and you, Mr. Jensen. It sounds like it's a pretty good
afternoon for the forests and the hikers and all those who are
enjoying the Devil's Staircase area and the wilderness that
we're proposing.
Mr. Jensen, you're for the legislation that Senator Merkley
has introduced, 1272. Ms. Burke, you seem to be for it. You
said something about minor modifications. Is it fair to say
that as far as the administration is concerned there's no
reason why the bill shouldn't be reported by the committee and
approved by the Senate?
Ms. Burke. That's correct. It's just that we would like to
work with the committee with some minor modifications.
Senator Wyden. I think I ought to quit while I'm ahead.
That's some good news for Oregonians. These are special
treasures that we feel strongly about.
Both your agencies have cooperated fully with us. I'd have
more questions under normal circumstances, but I know a lot of
colleagues have interests that are very important to them. So
we'll start with Senator Bingaman, I think, and then we'll go
to Senator Barrasso.
The Chairman. Thank you very much.
Let me ask Ms. Burke just a few questions about the
legislation that Senator Udall and I are proposing there in
southern New Mexico, the Organ Mountains-Desert Peaks
Wilderness Act. One of the issues that's often raised with new
conservation proposals is what effect the designation will have
on energy development. Are you aware of any applications for
renewable energy development in these areas?
Ms. Burke. The BLM in New Mexico informs me that they have
not received any applications for renewable energy in this
area.
The Chairman. Can you tell us what the potential is for oil
and gas development within the proposed wilderness and national
conservation areas covered by the act?
Ms. Burke. Yes. The BLM in New Mexico informs me that the
areas that are designated by this bill have very low potential
for oil and gas development. There are currently three existing
oil and gas leases within the Desert Peaks National
Conservation Area and those valid existing rights will be
protected, but currently there is no oil on those leases.
The Chairman. Finally, can you tell me whether there are
any West-side energy corridors that run through the areas that
are proposed for designation?
Ms. Burke. BLM recently completed work on a series of these
corridors and, no, they do not conflict with the designations
in this bill.
The Chairman. As a general matter, can you tell us the
experiences that the BLM has had with managing the grazing in
areas that have been designated as national conservation areas?
Does the designation of an area as a national conservation area
significantly affect the existing grazing activities based on
the experience of the BLM?
Ms. Burke. Most of the NCAs managed by the BLM had
livestock grazing on them before designation and that grazing
continues today. Grazing is managed in the national
conservation areas under the same rules and regulations as on
other BLM lands.
The Chairman. Thank you very much.
Senator Wyden. Thank you, Senator Bingaman.
Senator Barrasso.
Senator Barrasso. Thank you, Mr. Chairman.
Mr. Jensen, several of these bills are going to set aside
large areas and put them off limits to motorized recreation. I
understand that there is quite a large off-road recreation
community often within or near many of these areas. So for each
of these areas, can you give me some understanding or bring me
some information on how much we're talking about and the impact
to those people who use off-road vehicles?
Mr. Jensen. I believe in the wilderness designation case
that I believe you're referring to in Oregon my briefing is
that there is one road that goes through the area, but it's not
heavily used. It's a fairly rugged road that is being looked at
potentially being decommissioned as part of this. But the
larger approach of the NCUs is to look at these sort of
designations in relation to recreation and to the tribal
management system and plans. Currently right now, all national
forests are going through this process to catalogue, identify
shared resources in forests, so that these sorts of
designations and other uses are done in a way that doesn't
impact, severely impact, user groups and is done in a way
that's environmentally sensitive.
Senator Barrasso. Ms. Burke, S. 940, the Southern Nevada
Higher Education Land Act. I read that and I think that it may
be vague in the restrictions on how the three colleges may use
the conveyed lands. The proposed legislation could be
interpreted to mean that these colleges could put commercial or
private development on the land. So I'm just curious if there
is any precedent for this type of provision in other laws when
we do these kind of exchanges. Anything that you're aware of?
Ms. Burke. Yes. Last year in S. 2324, which was in Twin
Falls, Idaho, that the BLM supported, which was the transfer of
land for recreational purposes and for a waste water treatment
facility. This year we supported S. 1140, which was in Oregon.
That was for rodeo grants and also for a wastewater treatment
facility.
Senator Barrasso. I'm wondering if it's an open-ended
conveyance, because you said it sounds like that was a clearly
designated issue. Is it the policy of the administration to
support open-ended conveyances of Federal lands?
Ms. Burke. It's the policy of the Administration to support
conveyances that are consistent with the Recreation and Public
Purposes Act. So as I said in my testimony, the BLM would
welcome the opportunity the work with the sponsor of the bill
and the committee to make sure that the conveyances are
consistent with that act.
Senator Barrasso. Thank you.
To both of you: This spring Senator Murkowski sent a letter
to the Secretaries of Interior and Agriculture requesting
information be made available by the administration on energy
potential and renewable energy potential, as to mineral
availability for all areas that are proposed for set-asides in
legislation before this committee. I don't know if you know
what the status might be of any maps or any information
regarding these bills that we're considering today.
Mr. Jensen. My understanding is that efforts are under way,
if not have already been transmitted to the committee, related
to that request. I hope that they are indeed already there.
Senator Barrasso. If not, can you work more closely with
the committee so we would have these before we make final
consideration of the legislation.
Mr. Jensen. Yes.
Senator Barrasso. That would be for both of your agencies.
Ms. Burke. Yes.
Senator Barrasso. Thank you.
Thank you, Mr. Chairman.
Senator Wyden. Why don't we go next to Senator Murkowski.
Senator Murkowski. Thank you, Mr. Chairman.
First to you, Ms. Burke. I appreciate the administration's
statement of support for S. 522. I want to address or discuss
with you a couple of the concerns that you have raised, and Mr.
Jensen as well, regarding the Sealaska legislation. You have
suggested, Ms. Burke, that we may see a delay in conveyances
despite the legislation that we were successful in introducing
and getting passed some years ago, the Alaska Lands
Acceleration Act. But under the terms of that act what we
provided for was that these conveyances would be complete by
the anniversary, the fiftieth anniversary of statehood, which
we are celebrating this year.
We are not going to meet that deadline. Your suggestion is
that somehow or other this delays conveyances. I might suggest
to you that part of the problem with accomplishing what we set
out in that Acceleration Act was that there hasn't been
sufficient funding. We have not been able to get the survey
that we have needed.
It seems to me that the appropriate response here is to say
that we've got to do more within the budget to allow for these
conveyances to move forward, rather than to suggest that
Sealaska should just wait longer for its conveyances. I think
40 years or 38 years is long enough. So I would hope that as we
look to this issue we recognize that it is a bigger picture in
terms of the conveyances that are due the State under the ANCSA
Act.
Let me ask a question about the precedent-setting. You have
suggested this, Ms. Burke, and I understand, Mr. Jensen, in
your written testimony that I only received this morning that
you both are concerned about this somehow being precedent-
setting. I would like to point out a couple facts. First,
ANCSA's has already been amended. It has been amended about 40
different times, so this is hardly going to be a first.
Given the unique circumstances that we have with Sealaska,
dating back to 1971 they were the largest block of shareholders
of the Native corporations and they received the smallest
amount of land, largely because at that time the land, a large
portion of southeastern land was locked up or encumbered by
these long-term timber sales contracts.
Now, all those contracts have been canceled and they were
canceled by your Department, about 25 years after ANCSA went
into effect. Now you have literally hundreds of thousands of
acres that are now available for selection in the mid-1990s.
I look at this situation and say it is very unique within
ANCSA and can hardly be construed as precedent-setting. I don't
see any other entity that will be able to make this claim.
Would you agree with me? I'd ask this of both of you.
Ms. Burke. I will. It is true that Alaska has some unique
circumstances. Sealaska has had sufficient land selections on
file in order to satisfy their entitlements.
Senator Murkowski. Would you agree that about 40 percent of
those are under water and that a considerable number of those
were also locked up or encumbered with these long-term timber
contracts until the mid-1990s?
Ms. Burke. Well, I'm not aware of how much of that might be
tied up today. But Sealaska has selected over 170,000 acres and
its remaining allocation is about 63, 64,000. So we think
that's more than adequate to satisfy that entitlement.
Senator Murkowski. I'm not sure that I understand. There's
somewhere between 65 and 85,000 that Sealaska is yet eligible
to claim. You're not suggesting that they are not entitled to
that?
Ms. Burke. No, not at all. I'm saying that they've
selected, Sealaska has selected, over 170,000 acres. The
remaining entitlement as far as we can determine as of today is
about 64,000. So within that 177,000 we should be more than
able to satisfy the entitlement of 64,000.
Senator Murkowski. Again, I would take you back to my point
that if you look at the maps, which I'm sure you have given
great consideration, you have a great portion of this that is
not viable. However, when you have 40 percent of your available
areas that would be under water, to me that's not a viable
selection.
What we're trying to provide here is equity to the Sealaska
shareholders. The whole purpose under ANCSA was to allow for
economic opportunities to proceed and that, as Senator Begich
has mentioned, is so integrated to the land.
Mr. Jensen, I haven't given you an opportunity to answer.
My time has expired, but if you could just briefly address it.
Mr. Jensen. There many different precedential components to
this exchange. The key part of the context for us is some of
the court claim settlements that occurred even before ANCSA
around Southeast Alaska Corporation. I think that those
agreements that went in before the agreements that were laid
out for the corporation to this day relate a lot to how we view
the issue.
My understanding is that the corporation did submit its
selection of those lands some years ago, but has not moved
forward. I'm not fully briefed on that and will commit to
working with you to find out how that currently stands.
Senator Murkowski. OK. We can certainly help you with
better information.
Mr. Chairman, my time has expired.
Senator Wyden. I thank my colleague.
Let's go next to Senator Udall.
Senator Udall. Chairman Wyden, I believe Senator Begich has
an appointment that's more urgent than I do. So I would defer
to him at this point.
Senator Wyden. Let's recognize Senator Begich.
Senator Begich. Thank you very much. I'll be brief. I do
have a 3:30.
I'm going to try to follow what Senator Murkowski laid out
there, Ms. Burke. That is, I understand the mathematical issue
of how much acres is available, how much they selected and what
is left to select, but the question is the quality of the land.
We can debate if 30 percent or 40 percent or whatever that
percent is is under water or on mountaintops. It's very
difficult to do what Sealaska is required to do under ANCSA,
which is to manage the lands for their people, which is not
only economically but also for subsistence or utilization
within that corporation. So there's multiple reasons.
Do you see that as an important factor in this, that the
lands that may be available do not meet those needs? I have to
warn you that I can only speak to this from my knowledge of
this bill because my dad wrote the bill, because I want you to
be prepared for that as you answer this.
Ms. Burke. I don't know that I can comment on fairness per
se, but I can say that the BLM is committed to working with
Sealaska and with the other interested parties in the State of
Alaska to come to a solution that works. Our concern with this
particular bill, as we said, is just the precedent that it
would set and that we think there are other ways to work with
Sealaska that we have yet to explore fully, but that this is
not--this is not the way to go, given our interest in
accelerating completion of the entitlement process.
Senator Begich. I understand that. But I'm new around here,
but I will tell you when I hear ``precedent-setting,'' there's
nothing in this body that I've ever seen that stays the course,
that's always the same year in and year out. One thing I have
noticed around here is there's always tweaks and turns from the
administration as well as from Congress, because things change.
Conditions change.
I think Senator Murkowski laid out an interesting comment
in regards to the lands that suddenly became available. I use
the word ``suddenly.'' 25 years is not really suddenly. But
still, in fact they became available, which changed the
dynamics. In 1971 there was a certain parameter that you looked
at. In the 1990's that enlarged.
So I guess I want to stress the point. I think there is a
way to resolve this issue. What I guess I'm looking for from
both of you actually, that you don't have the narrow window of
a bureaucracy that says we can't set a precedent, because
everything we do in Congress is setting a new precedent about
everything. So I don't want you--if that's the answer,
obviously that doesn't get to what the core issue of ANCSA was,
which was all about management of lands for the people, and
therefore the people need to be heard.
I know there's conflict within our community and we're
working through that. But I hope that the Departments don't use
precedent-setting as the only reason. At the end of the day I'm
looking for an answer from both of you on that, because that
doesn't really cut it.
Mr. Jensen. If I might jump in, I think your question is a
perfect example of what it is the position of both the
Department of the Interior and the Department of Agriculture we
need to sit down and talk about these issues a little more and
look into the circumstances of how those designations were put
out when the law first passed and look at the situation that we
have right now. We do have other cases that this may be
precedent-setting for, but that's a consideration.
So we really do look forward to sitting down and talking
with you to figure out how we might come together in agreement
on this.
Senator Begich. That's a fair statement. I'll leave it at
that.
The only other thing I would ask--and I don't recall
because I don't have the budget information here, but on the
accelerated land transfers can you say, Ms. Burke, that the
dollars you need--every dollar you need you've asked for to
accelerate that?
Ms. Burke. I would have to get back to you on that
question. I cannot say whether or not without our past budget
requests.
Senator Begich. Can you do that for the record, not only
from the past, but what you're preparing now for the next
budget cycle? Because if you're not asking for the money you'll
never accelerate. So you can't use that argument because that
just goes around in circles. So I want to make sure that the
resources are available. Senator Murkowski laid it out very
well that if you're going to accelerate you need the funding.
But you need to ask for it. If you're not asking for it, we
can't accelerate.
So if you could do that for the record. Mr. Chairman, if
that's OK I'd appreciate it.
Senator Wyden. We will hold the record open for it.
Senator Begich. Thank you very much, Mr. Chairman. I
appreciate the courtesy of allowing me to testify and also to
ask questions.
To the Alaskans here, I apologize, but I have to take care
of some other business. But I know Senator Murkowski will be
the lead and be aggressive in making sure all the good facts
that you have are presented.
Thank you very much.
Senator Wyden. Glad to have you here. You are welcome.
Senator Udall.
Senator Udall. Thank you very much, Chairman Wyden.
Ms. Burke, the New Mexico wilderness areas included in this
bill under consideration today are in close proximity to the
Mexico-United States border, and as we consider the merits of
land preservation it's important to take into consideration the
impact that land designations may have on homeland security
efforts.
Can you describe the working relationship between the BLM
and the Border Patrol in areas such as Dona Ana County, and do
you think we've made the changes we need to make to protect
border security?
Ms. Burke. Yes. The Department has a memorandum of
understanding from 2006 to work cooperatively along the border
with respect to areas that we manage. This bill actually would
release 16,000 acres that are under the wilderness study area
designation, so it would move the boundary line from where it
is currently to about a half mile from the Mexican border to 3
miles back. So we think that is sufficient space for the Border
Patrol and other law enforcement agencies to do their important
work.
Senator Udall. I assume you would also work with them in
terms of ecological value of the land and in whatever
activities they have to carry out there also?
Ms. Burke. Absolutely.
Senator Udall. You have done that in the past?
Ms. Burke. Yes.
Senator Udall. One other question I have regards taking on
the issue of invasive species. I know you've been doing that in
southern New Mexico on your lands. Does changing the
designation here hurt your efforts in any way to continue those
kinds of efforts?
Ms. Burke. Senator Udall, I have to get back to the
committee on that question.
Senator Udall. OK, that would be great. That would be
great, if our chairman and ranking member would let us
supplement the record on that. Thank you very much. Thank you
both for your testimony.
Senator Wyden. We will--we thank you.
I think we're prepared to excuse you both at this time.
Senator Murkowski, additional questions?
Senator Murkowski. I appreciate the opportunity and I will
try to be very quick.
Mr. Jensen, you mentioned the Tongass Futures Roundtable.
We too have been very hopeful that good things will materialize
from the dialog and the talks that have been going on for
several years. I am a little concerned, though, that you may be
suggesting that we can't resolve Sealaska without the Tongass
Futures' blessing. There currently has been a new proposal that
has just been put out on the table in the past week. Are you
suggesting that we should put a hold on the Sealaska measure in
anticipation of something from the roundtable?
Mr. Jensen. I'm glad you've given me a chance to clarify.
Not at all. The Department's interest in the Tongass Futures
roundtable is grounded in a place where people come together to
talk about these issues and find if there is some common ground
to work forward on. That's where it focuses our attention. It
gives us an idea of some of the places where there are some
ideas and some solutions. So we don't just look at the
roundtable as one place to deal with Sealaska. We look at that
as a place to deal with some of the larger issues that are
impacting the region and the forests there and as one example
of the collaborative type efforts that we view as potentially
methods to have us work through these very troublesome and
difficult issues all across the country.
So particularly with this case here, we're simply looking
to the roundtable for an expression from a multiple set of
stakeholders on how they view the various issues around the
Tongass National Forest.
Senator Murkowski. I appreciate you saying that, because I
don't want this to be a situation where this legislation that
would bring, equity to the Sealaska people would be held
hostage to a process that is certainly important, but it's also
one that is very complicated, takes a great deal of time, and
takes years.
The Secretary of Agriculture has said repeatedly that one
of his initiatives or priorities is to make sure that American
Indians, Alaska Natives, or indigenous peoples are treated
fairly. I would suggest to you that 38 years for the Sealaska
people to wait for their lands is not treating them fairly.
Mr. Jensen. I can assure you that Secretary Vilsack feels
the same way.
Senator Murkowski. Thank you, I appreciate that.
Senator Wyden. Thank you, Senator Murkowski. I know we'll
be following up with you on a number of the issues raised
today. I will excuse you at this time.
Our next panel: the Honorable Oscar Vasquez Butler of Las
Cruces, New Mexico; and Dr. Jerry G. Schickedanz, also of Las
Cruces; Byron Mallott, Sealaska Corporation, Juneau; and Bob
Claus, Southeast Alaska Conservation Council, also of Alaska.
All right, let's proceed. We'll start with Mr. Butler, Mr.
Schickedanz, Mr. Mallott, and Mr. Claus. All right, please
proceed, Mr. Butler.
STATEMENT OF OSCAR VASQUEZ BUTLER, VICE-CHAIR, DONA ANA COUNTY
BOARD OF COMMISSIONERS, LAS CRUCES, NM
Mr. Butler. Good afternoon, Mr. Chairman and members of the
subcommittee. It is my great privilege to be here at Senator
Bingaman's invitation to testify before the Subcommittee on
Public Lands and Forests.
The Chairman. I do think you need to push the button once
more, Oscar. Thank you.
Mr. Butler. I'm sorry.
I am honored to represent the 2,000-plus residents that we
represent in New Mexico. There are few issues in Dona Ana
County that have received as much attention since 2005 as the
potential for significant public lands conservation through
wilderness and national conservation area designations. Local
stakeholders have dedicated long hours to realize the benefits
that conservation can bring and have worked hard to address the
issues and concerns.
I am here to endorse S. 1689, the Organ Mountains-Desert
Peaks Wilderness Act, jointly introduced by Senator Jeff
Bingaman and Senator Tom Udall. This legislation meets the
hopes of almost everyone involved. It assures our children and
grandchildren will be able to enjoy these designated wilderness
areas as have their parents and ancestors.
From the Organ Peaks to those rare desert grasslands in the
Potrillo and Uvas Mountains, to Broad Canyon's hidden riparian
areas and beyond, this legislation would protect the natural
marvels of Dona Ana County and the diversity and rich culture
of its residents and visitors. This legislation has earned has
earned buy-in from nearly every sector of the community that
will be affected by its passage. That buy-in entails
significant compromises forged by multiple groups, none of whom
received all that they wanted, but the vast majority of whom
received substantially what they needed to support the end
result.
Three times, in 2006, 2008, and 2009, the Dona Ana County
Commissioners supported both the process and promise of
wilderness and NCA designation for important lands in the
county. The acreage to be protected as wilderness in this bill
is lower than originally envisioned, but it remains impressive.
The legislation does represent a broad consensus. Protecting
our wilderness is securing our community's future.
One area it will benefit is economic growth and
opportunity. If you ever come to Las Cruces, you will see the
Organ Mountains on many business marquees from land developers
to local auto mechanics. Our magnificent mountains are a strong
signature for the entire valley. Our robust growth is fueled
largely by the attraction these natural areas provide. I
believe businesses are increasingly concerned about the quality
of life and view favorably the nearness of the protected public
lands when siting operations. This is especially true of the
high tech industry. These businesses are looking for an
environment that will help them attract and maintain a
motivated, energized work force, a place where they can raise
their families. Knowing that the public lands and landscapes
they treasure will be protected, this is the promise that
wilderness and national conservation area designation holds to
our community. That is why the High Tech Consortium of Southern
New Mexico and the Hispano Chamber of Commerce de Las Cruces
have thrown their support behind Senator Bingaman and Senator
Udall's efforts.
The other benefit of this legislation for our community is
increased ability to plan, ability and clarity to plan. For
decades now the lands in the Organ Mountains-Desert Peaks
Wilderness have been in limbo. That makes it difficult to plan
for the future growth from multiple standpoints. In 2007 Dona
Ana County and the city of Las Cruces jointly entered into a
planning process known as Vision 2040. This process, with
dozens of public meetings and other opportunities for public
input, will help set community priorities for the next 3
decades. Knowing that some lands will be permanently protected
makes our job much easier.
Support for this legislation is widespread and prevalent
throughout Dona Ana County. I do take strong exception to the
statement made by opponents of this act that wilderness is
primarily used by affluent Anglos. As an Hispanic American
representing a community whose Hispanic population nears 50
percent in the most Hispanic State in our country, this
assertion by local wilderness opponents is factually incorrect.
Hispanics enjoy strong traditions of family, community, love of
the land, and environment. We are sportsmen and
conservationists, businessmen and leaders who enjoy our public
lands and New Mexico wilderness areas as much, if not more,
than anyone else. Upon passage of S. 1689, we will all enjoy
these wilderness areas right in our own backyards.
I'm getting short on time, so thank you again for the
opportunity to speak to you today on behalf of this incredible
legislation, and I stand ready for any questions, Mr. Chairman.
[The prepared statement of Mr. Butler follows:]
Prepared Statement of Oscar Vasquez Butler, Vice-Chair, Dona
na County Board of Commissioners, Las Cruces, NM
S. 1689
Mr. Chairman and Members of the Subcommittee, I appreciate the
opportunity to appear before you today to speak in favor of S. 1689,
The Organ Mountains--Desert Peaks Wilderness Act, introduced by
Senators Jeff Bingaman and Tom Udall. My testimony represents my own
personal strong support for this important conservation initiative, as
well as that of the entire Board of the County Commission for Dona Ana
County, which unanimously passed a resolution in support of The Organ
Mountains--Desert Peaks legislation on September 22, 2009.
Mr. Chairman, I highly commend Senator Bingaman and his colleague
Senator Udall for their good work, diligence and dedication in
developing this far-reaching, well-thought-out proposal to protect
forever some of the most scenic and environmentally important lands in
Dona Ana County and, indeed, the entire State of New Mexico. Senator
Bingaman has championed this proposal over many years, taking his time
to ensure he reached out to all interested parties, listened to their
concerns and recommendations, and developed a broad-based piece of
legislation that represents a very reasonable compromise that will
protect our cherished lands and the rights of the people to enjoy them.
Senator Bingaman listened to his constituents--those who love and
cherish these lands--and developed, through a collaborative process, a
solid piece of conservation legislation. Adjustments were made in both
the scope and policies contained within the proposal and, while not
everyone is 100 percent satisfied, I believe everyone was heard by the
Senator.
Mr. Chairman, the legislation before the Subcommittee today
represents what can be accomplished through the true spirit of
cooperation and compromise. I can assure you that the vast, vast
majority of the citizens of Dona Ana County and the State of New Mexico
support Senator Bingaman and Udall's efforts. From sportsmen to local
businesses, horsemen to hikers, there is a consensus that these special
lands deserve the protection this legislation will provide.
Mr. Chairman, let me take this opportunity to tell you a little
about my background and the great County I have the privilege to
represent.
I currently serve as the Vice-Chair of the Dona Ana County Board of
Country Commissioners, having been first elected to the Board in 2002.
I have also served my community in many other capacities, including:
President of the New Mexico Association of Counties; board member of
the New Mexico Water Dialogue Board and the Lower Rio Grande Water
Users' Organization; past chairman and current board member of the
South Central Solid Waste Authority and the Dona Ana County Extra
Territorial Authority; and past president of the Dona Ana County Water
Association.
Dona Ana County is the second-largest populated county of the
state's 33 counties, and comprises some 3,800 square miles of
territory. I have the great honor to represent the largest commission
district, District 1. The County has a population of just over 200,000,
but is expected to continue to grow to over 300,000 by 2015. The county
seat, Las Cruces, is considered to be one of the fastest growing
communities in the United States.
As a result Mr. Chairman, our communities know full-well the
difficulties involved in managing development and growth, and we are
particularly aware of the importance of protecting open space. In fact,
it is these very lands that have rooted our ancestors to this area and
serve to draw new citizens every day. Our way of life is tied to the
majestic landscapes and way of life that this legislation seeks to
protect.
Mr. Chairman, pristine natural areas provide unique opportunities
for recreation and tourism that contribute to the local economy.
Additionally, I believe businesses are increasingly concerned about
quality of life, and view favorably the nearness of protected public
lands when siting operations. That is why over 200 local businesses,
along with the Hispano Chamber of Commerce de Las Cruces, and the High
Tech Consortium of Southern New Mexico have endorsed this conservation
effort. The areas offer excellent opportunities for hiking, hunting,
camping, climbing, horseback riding and, perhaps most important, quiet
solitude for our citizens to enjoy and relax in when the work day is
done.
The Organ Mountains-Desert Peaks Wilderness Act will promote future
growth by securing the special quality of life our County has to offer.
Dona Ana County and the City of Las Cruces are cooperatively working
together on a joint plan known as Vision 2040. This comprehensive
analysis of our future needs as our population continues to grow will
inform many facets of our land-use planning processes, including
transportation options and economic development. Senator Bingaman and
Senator Udall's legislation provides us with much needed clarity on
public lands conservation and will help the Vision 2040 process,
ensuring our community's growth is well planned and prepared for.
In fact, Dona Ana County has long recognized the important
opportunities protecting our local wilderness areas offers. In February
of 2006, we passed a resolution supporting protection of regional
wilderness study areas and additional public lands prized by our
community. In 2008, we again passed a similar resolution in support of
preserving our most sensitive public lands. And, throughout the
development of this legislation, we have worked closely with Senator
Bingaman and now Senator Udall. Thus, our unanimous resolution passed
on September 22, 2009, in support of the Organ Mountains-Desert Peaks
Wilderness Act was the culmination of years of effort.
The nearly 359,850 acres of public land the bill will protect
(259,000 acres as wilderness and over 100,000 acres as a National
Conservation Area) includes rich grasslands in the Potrillo and Uvas
Mountains, petroglyph sites and riparian areas in Broad Canyon, crucial
watersheds, and the iconic spires of Las Cruces' signature scenic
attraction--the Organ Mountains. These lands also possess great
ecological value, with the Organ Mountains perhaps being the most
botanically diverse mountain range in New Mexico, with approximately
870 plant species. The area is rich with wildlife, including pronghorn
antelope, mule deer, mountain lions, quail, and numerous other bird
species.
Perhaps Senator Bingaman said it best when he noted that, ``The
Organ Mountains are among the many scenic landscapes in Dona Ana County
that define Southern New Mexico and the rich culture of its people.''
That is why I am here today to testify before the Subcommittee, Mr.
Chairman---to ensure that these majestic, culturally important,
environmentally sensitive lands that make up our community will be
protected and properly managed for this and future generations to enjoy
in all their splendor.
Again, I offer my deep appreciation to Senators Bingaman and Udall
for their outstanding work on behalf of this fine effort to protect an
area very dear to me and the citizens of Dona Ana County. And, thank
you, Mr. Chairman, and the Members of the Subcommittee, for your
attention to my statement in Support of the Organ Mountains--Desert
Peaks Wilderness Act.
Mr. Chairman, I am also submitting several documents for the
record, including three different resolutions passed by the Dona Ana
County Commission supporting protection of regional wilderness areas, a
list of supporters of this Act, opinion editorials from the Mayors of
Las Cruces and Mesilla and the Chair of the Dona Ana County Commission,
as well as from local sportsman leaders, and editorials from the Las
Cruces Sun News and Albuquerque Journal endorsing the Organ Mountains-
Desert Peaks Wilderness Act. This concludes my written testimony.
Senator Wyden. Thank you very much, Mr. Butler.
We're running into a little bit of a logistics challenge
with some votes coming up at 4 p.m. So in the great bipartisan
tradition of this committee, we have worked it out so that when
you have completed, Dr. Schickedanz, your testimony, Senator
Bingaman and Senator Udall would like to ask you some questions
briefly, and the New Mexico Senators and I will have to leave.
We're going to turn this over to Senator Murkowski to run the
rest of the hearing.
I just want all of you to know that the subcommittee chair
will be following up closely on all your views. We feel badly.
This time of year things get a little hectic.
So we'll go now to you, Dr. Schickedanz, and the questions
from Senator Bingaman and Senator Udall. Please proceed.
STATEMENT OF JERRY G. SCHICKEDANZ, PH.D., CHAIRMAN, PEOPLE FOR
PRESERVING OUR WESTERN HERITAGE, LAS CRUCES, NM
Mr. Schickedanz. Thank you, Mr. Chairman. I've practiced my
5 minutes and, unless I get scared and revert back to my Okie
drawl, I should be done in time.
Mr. Chairman and members of the committee: My name is Jerry
Schickedanz. I am Chairman of the People for Preserving our
Western Heritage, a coalition of 791 businesses and
organizations in Dona Ana County, New Mexico. The organization
was formed in November 2006 after a series of meetings among
Federal lands stakeholders organized by the county of Dona Ana
and the city of Las Cruces to establish a consensus on proposed
wilderness designations for ten local areas.
The mission of People for Preserving Our Western Heritage
is to preserve, promote, and protect farming and ranching and
the rural heritage of our western lands. We support permanently
preserving and protecting the Organ Mountains and the other
special areas of our county.
We believe there are viable alternatives to Federal
wilderness designations that can be used to protect our land,
our natural resources, and our open space. We encourage and
believe in beneficial and balanced stewardship of our Federal
lands, which requires an accurate understanding of the facts.
Senators Bingaman and Udall introduced S. 1689, the Organ
Mountains-Desert Peaks Wilderness Act. Upon reviewing it, we
feel there are some issues that were overlooked. We believe:
One, that not all the lands proposed for wilderness designation
meet the wilderness standard;
Two, there is a need to develop new land protection
designations;
Three, that border security needs to be considered very
carefully; and
Four, that language concerning grazing needs to be placed
in a higher level in the bill.
Dona Ana County in the Southwest has been used for food
production since the earliest record of man in the valley.
There has been livestock in the area since 1598, when Onate
crossed into now present day New Mexico. These lands have been
used for the continuous production of primary wealth. Wildlife
has been set aside since the 1920s and inventoried and
protected under the Wilderness Act of 1964.
Initially, these lands met the strict interpretation of the
Wilderness Act that included 5,000 acres of roadless area free
of sight and sound of man, and were essentially untrammelled.
Currently there is over 100 million acres of land protected in
Federal wilderness in the United States
Lands being considered now don't meet those criteria. We're
trying to protect lands under the Wilderness Act with the gold
standard of protection. However, these lands don't meet the
gold standard of wilderness character.
There are other ways to protect lands. Citizens of Dona Ana
County and the People for Preserving Our Western Heritage agree
on the need for protection. We just don't agree on the method.
We have suggested a rangeland protection area designation as an
alternate method of land protection. We feel it is time to
develop a new land protection designation that is not as
restrictive as the wilderness designation, to correspond with
lands that are not meeting the gold standard of wilderness.
We have grave concerns about giving wilderness designation
to lands adjacent to the border, with all the inherent security
issues such as illegal trespass, illegal transport of drugs and
of people, land desecration, while putting life and limb in
serious jeopardy. We have outlined in detail problems in
Arizona with wilderness designation and the problems that law
enforcement and border control encounter and the unfortunate
situation that has evolved.
We feel that grazing needs to be elevated in the bill to
the same level of purpose as is given to other protected
designations, such as cultural, geological, historical,
etcetera.
For these and many other concerns listed in my written
testimony, we feel there needs to be further dialog and
negotiation between Dona Ana County citizens and this
committee. Mr. Chairman, Senator Bingaman, and members of this
committee, this legislation will have a major impact on 560
square miles of Dona Ana County and on the over 200,000
citizens who reside there. We strongly suggest this committee
hold a field hearing where the land and the people exist so
that all issues and interests can be fully aired and discussed
with the folks most affected.
I brought with me signatures of 15 ranchers who ranch on 80
percent of the lands slated for wilderness and NCA, who object
to the bill as it's currently written. I also have a list of
791 business organizations in Dona Ana County and adjacent
counties who also object to the bill as being currently too
restrictive. I would like to place those into the record if I
might.
Senator Wyden. Without objection, it will be done.
[The prepared statement of Mr. Schickedanz follows:]
Prepared Statement of Jerry G. Schickedanz, Ph.D., Chairman, People for
Preserving our Western Heritage, Las Cruces, NM
S. 1689
INTRODUCTION AND BACKGROUND
I am Jerry G. Schickedanz, Chairman of People For Preserving Our
Western Heritage (PFPOWH), a coalition of 791 businesses and
organizations in Dona Ana County, New Mexico. The organization was
formed in November of 2006, after a series of meetings among federal
lands stakeholders organized by the County of Dona Ana and the City of
Las Cruces to establish consensus on proposed wilderness designations
for ten local areas.
The mission of PFPOWH is ``To preserve, promote and protect the
farming, ranching and rural heritage of our western lands.''
We support permanently preserving and protecting the Organ
Mountains and the other special areas in our county. We believe there
are viable alternatives to federal ``Wilderness'' designation that can
be used to protect our land, our natural resources and our open space.
We encourage and believe in beneficial and balanced stewardship of
federal lands which requires an accurate understanding of the facts.
COMMUNITY EXPECTATIONS
As the result of the many meetings with the stakeholder groups,
PFPOWH concluded that no existing land use designations in use by the
federal government provides for protection of the land while meeting
the concerns and expectations of our community. Community expectations
for the management of our public lands are as follows:
1. Retention of open space.
Almost everyone is committed to the preservation of our open space.
2. Provision for planned economic and population growth.
The population of Dona Ana County is going to grow. That growth
will require some federal and state lands to be included within the
scope of land use planning. Prohibiting the sale of public lands cannot
be used as a tool to restrict the growth of local communities. FLPMA
promises that to us.
3. Unrestricted application of Homeland Security and law
enforcement activities.
No prudent leader should tie the hands of law enforcement on or
near the Mexican border.
4. Prevention of unlawful use of off road vehicles.
The ranchers were the first and foremost advocates of this, but
they were not alone. Every group and every stakeholder representative
supported the prevention of unlawful off-road vehicular traffic.
5. Continued access for all segments of the public.
The USDA's 2007 Forest Service ``National Visitor Use Monitoring
Report'' indicates a continued decline in visits to Wilderness areas by
members of the general population. Currently only 3.1% of visits to our
national forests are into Wilderness areas, and 94.5% of those visitors
are white. In other words, Wilderness is for rich, white people.
6. Perpetuation of traditional ranching operations.
There is a growing understanding that intact ranch operations are
the best mechanism to maintain the viability of open space in the West.
7. Access for flood control and water capture projects.
Dona Ana County is part of a desert ecosystem. Most of our annual
rainfall occurs during the months of July, August and September. Sudden
flood causing downpours are common. Our local Elephant Butte Irrigation
District has initiated innovative measures to control those flood
waters, protecting the populated areas from damaging floods by
directing the runoff into the irrigation distribution and drain canal
system where it recharges the Rio Grande aquifer and supplements
irrigation water under the Rio Grande Compact. Those initiatives are at
risk by overly restrictive federal lands legislation.
8. Enhancement of wildlife and rangeland health.
Scientific study has confirmed the improvements to plant and
wildlife communities that result from prudently managed livestock
grazing programs. Virtually all of the permanent water sources
available to wildlife in Dona Ana County, other than the Rio Grande,
are the result of livestock water facilities developed and paid for by
livestock operators.
9. Fidelity of Wilderness.
Most of the proposed Dona Ana County Wilderness areas do not meet
the fidelity standards of wilderness. William L. Rice, Deputy Chief of
the Forest Service and NRCS (retired), wrote a column in which, he
says, ``In order for Wilderness designations to remain significant, the
original premise of Wilderness must be held inviolate (Exhibit B)*
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* All exhibits have been retained in subcommittee files.
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PROPOSED NEW LAND DESIGNATION
RANGELAND PRESERVATON AREA
National Conservation Area Revealed as Rangeland Preservation Area
Implicit in this testimony is a process that developed extensive
discovery of facts and also educated and built a coalition that
recognized a wide variety of factors which impact the area today as
well as the future. In building the near 800 business and organization
pledges of support, a land designation was sought to provide the long
term protection of wilderness, but to also elevate into the designation
factors of human involvement with the land. There was no federal
designation of land that accomplished that. As such, the idea of
Rangeland Preservation Area (RPA) was conceived.
Under the RPA concept, the lands would be withdrawn from all forms
of disposal, the mineral leasing laws and the mining laws, just as they
are in wilderness. Off highway vehicle traffic would be prevented, with
certain exceptions made for law enforcement, flood control projects and
range improvement projects. Surface management would be based on
multiple use principles with an emphasis on retaining open space.
PFPOWH heard from Senator Bingaman that it would be hard to pass
any new land designation. This meant that if any alternative
designation was to be considered it would most likely be a National
Conservation Area (NCA) designation. This testimony may not alter that
realization, but, it does honor the position and the commitment of a
coalition that remains adamant that there is a local aspect of this
process that needs to be recognized as legitimate. As such, the NCA
approach will be couched in terms that inspired and grew from a group
of stakeholders that allows productive utilization of lands with
appropriate limitation and the recognition that it is time to elevate
the presence of human stewards to laws that affect communities and
industries across this country. It prescribes the allowable uses at a
local level, which may be modified from ecosystem science discovery. It
differs from Wilderness by recognizing the presence of human
activities, past, present, and future, in a resourceful and positive
manner.
Why Rangeland Preservation Areas Versus National Conservation Areas
There are a number of reasons that PFPOWH vigorously recommend a
new land designation, but two reasons stand apart.
The first is rangeland health and the need to acknowledge and
benefit from the advancement of range stewardship and science. There is
not a federal designation, administrative or legislative, that elevates
``rangeland'' health and improvement to the wording in the law. For too
long, the antagonistic assault on the grazing of livestock and
``extractive industry'' endeavors on western lands has been unchecked
and even advanced by Congressional action. Our country is on the
threshold of a series of shortages promulgated by actions that threaten
our security and our liberty. We must adopt a different approach.
Rangeland health issues must be elevated to a new level of importance
that preserves and enhances the natural health of the land.
The second point is the fact that there is not a single purpose or
point of recognition in federal land management procedures and policies
that relates to the social fabric of human endeavors. Humans have been
tied to the stewardship of livestock in this county since 1598, when
Onate crossed the river at what is now El Paso with several thousand
head of domestic livestock. The West needs a land designation that
engages rather than disengages stakeholder relationships with federal
land management agencies. Social fabric issues must be elevated to
points of the law. A new, different approach must be conceptualized and
implemented.
It has been argued that BLM will not accept and Congress will not
enact a new and unique land management designation such as RPA. That
argument denies the fact that Congress has already created four unique
land management designations that are a part of the National
Conservation Area (NCA) category within the National Land Conservation
System. Congress has developed new and innovative ways to assist the
automobile, banking and housing industries, why not the livestock
industry?
Why Rangeland Preservation Areas Here and Why Now
Perhaps for the first time, a stakeholder group has conceptualized
an idea that would engage and enhance federal land user relationships
in the West. That idea of RPA responds to the plea that is coming from
every corner of the West . . . to find some means to engage, rather
than destroy, historic stakeholder relationships with federal land
management agencies.
At the local level in Dona Ana County, New Mexico, we believe it is
possible to create a relationship among New Mexico State University,
the United States Department of Agriculture (Jornada Range), the Bureau
of Land Management, Homeland Security, New Mexico Game and Fish, the
Department of Defense, the ranching community, and the conservation
community with the specific intent of creating a model that can serve
as a world standard for sustainable rangeland health and productivity.
The pieces are all in place. The results could be techniques and
practices that improve native ranges in a way that allows for
utilization of our natural resources while protecting our environment
and the fabric of our culture. We have a rare opportunity to create a
model the West and the world can emulate. Through this effort, our
county could become one of the foremost destinations in the world to
study and learn of substantive measures to maintain a robust and
healthy balance in RPA ecosystems.
More than 790 organizations and businesses in Dona Ana County have
joined a coalition of PFPOWH supporters who recognize the potential
benefits of the RPA proposal as a viable alternative to Wilderness
designations to preserve the federal lands in Dona Ana County. They
recognize that the wholesale designation of Wilderness areas in this
county would be dangerous, ill conceived, and not in the best interest
of our citizens.
Neither multiple use nor Wilderness designation can satisfy all
nine expectations that came from this process. No existing federal land
designation can satisfy all the expectations. RPA designation would
exceed any other designation in meeting these expectations.
EXPANSION OF OTHER FACTORS THAT AFFECT THE LEGISLATION
The summary of community expectations that was presented above was
derived from an extended process. There were specific factors that were
considered in each expectation. Among the most important factors were
the following:
Border and Homeland Security
Range Improvements
Water Projects
Energy Corridors
Rail Line Access
Renewable Energy Projects
Mines
Oil and Gas Leases
Rights-of-Way
Grazing
Wilderness Degrading Infrastructure
Renew New Mexico and Stewardship Projects-Current
Renew New Mexico and Stewardship Projects-Future
BORDER AND HOMELAND SECURITY
Border and Homeland Security is the most important aspect of all
discussion of the proposed legislation. Wilderness on or near the
Mexican border is dangerous, it is illogical and it affects every
American.
MOU Discussion
In 2006, the Departments of Homeland Security, Agriculture, and
Interior signed a Memorandum of Understanding (MOU) that set out the
process for the Border Patrol to access federal lands for the purposes
of tracking, surveillance, interdiction, establishment of observation
points, and installation of remote detection systems along the United
States border with Mexico. For something as important as national
security, why would the Border Patrol be constrained beyond the 60 foot
``Roosevelt Reservation'' directly adjacent to the border and be under
the oversight and control of Federal land managers within the National
Park Service, the U.S. Fish and Wildlife Service, the Forest Service,
the Bureau of Land Management and the Bureau of Indian Affairs? The
answer was that, when Border Patrol activities impacted designated
federal wilderness where mechanized entry was not allowed by the
Wilderness Act of 1964, land management goals and missions between the
Border Patrol and the federal land management agencies were at full
odds and the conflict escalated dramatically.
The problem became so intense that in 2003 Senator Kyl (R-AZ)
demanded that ``unnecessary restrictions'' be ``dumped'' from national
park land along the Mexican-Arizona border. Finally, in March of 2006,
the Secretaries of Homeland Security, Interior and Agriculture signed
the agreement. The question is did it work?
In a 2009 document submitted by the Park Service to Congress, there
is a paragraph on page 15 which addresses that question directly. It
reads, ``With the increase in Border Patrol agents in the monument,
there is a direct correlation to more impacts on resources from
enforcement operations since under the 2006 MOU they have access under
specific situations with mechanical means to the monument to include
wilderness areas. These events lead to enormous challenges between
agencies as we attempt to manage these resources.''
Repeated questions by Dona Ana County citizens to Senator
Bingaman's staff about the assurances that the Arizona conditions will
not be repeated in New Mexico brought repeated references to Border
Patrol responses that there is an MOU in place to deal with access.
PFPOWH is convinced by the exhaustive research that such an expectation
is erroneous and dismissive of the facts in Arizona. In no case will an
MOU supercede legislation. In no case will the Border Patrol be
effective if it has to submit written requests for access for issues
other than hot pursuit, and in no case will local law enforcement
agencies even have access to request allowances. On page 9 of the MOU,
Section V.F. reminds all that the MOU is only an agreement among the
agreeing agencies.
Moreover, the MOU is symbolic of the dilemma that all agencies have
faced with border wilderness. It came into being because of conflict,
and the conflict in missions continues between Border Patrol and the
Park Service resulting with a flow of illegal drug and human smuggling
on federal lands adjacent to the Mexican border in Arizona.
Finally, the MOU has never been tested in New Mexico. Poll any
Border Patrol agent who has ever been on the New Mexico border and not
a single one will say that he or she has had a incident whereby a
Wilderness Study Area has restricted any activity relating to
interdiction or apprehension, especially any situation that was policed
or prohibited by a BLM ranger. Such an incident simply doesn't exist,
and, therefore, never has the MOU been forced into action. So, asking a
New Mexico Border Patrol representative if he has a problem with the
MOU is meaningless. They have never had a problem so how can they
respond to a question of whether the MOU causes them any concern. A
similar question posed to a Border Patrolman on the Arizona Border in
1990 before the onslaught of human tidal wave action began about
wilderness would have yielded exactly the same answer. Those that were
there had no idea what a buzz saw it would become.
The Arizona Experience
For hundreds of years the desert of what is now Arizona has been
the route of goods coming north from Mexico. The flow of merchandise
was created by demand from citizens and settlers of del Norte, the
expanse of territory generally north of the 54th Parallel. Over time,
the goods became as often illegal as they were legal. Today, the goods
passing through the rural, isolated expanse of sand, rock and heat are
more often than not, illegal. The circumstances and conditions
surrounding the flow are dangerous, and the consequences of stemming
the tide must be a national priority.
In the early 1990's human and drug smuggling got so intense in the
urban centers of southern California and places like El Paso, Texas,
that American citizens demanded that something be done. The Border
Patrol responded with a series of operations intending to pinch off the
flow of illegal entry in the urban areas and force that flow out into
rural areas where interdiction and apprehensions could be done more
effectively. Starting in El Paso in 1993 with Operation ``Hold the
Line,'' followed by Operation ``Gate Keeper'' in San Diego in 1994, and
concluding with Operation ``Safeguard'' in Nogales in 1995, the Border
Patrol turned up the heat. What they found in El Paso was that
apprehensions went down in the city and in the sector as a whole. What
they did was working. In San Diego, there was a brief lag followed by
the same pattern of decline in apprehensions and interdiction that El
Paso experienced.
Where the San Diego and El Paso operations were successful, the
Nogales operation failed. What developed was that apprehensions and
interdiction sky rocketed as the hordes of illegal immigrants that were
turned away in San Diego came to the deserts. Something happened and it
happened in a big and unexpected way. Border Patrol retired officials
will admit that they were ready for the wild land on the Arizona
border, but they were completely blindsided by the restrictions of the
federal designated Wilderness that was being administered by the DOI
through its Fish and Wildlife Service and National Park Service. While
the federal land agencies dug in to enforce wilderness access issues
with the Border Patrol, the illegal immigrants found a haven of entry
that has become the dominant feature in the movement of human and drug
smuggling on the border.
Data will show that all categories of crime not only went up, they
exploded. Deaths in Organ Pipe went from only occasional deaths to over
200 per year. Deaths are currently estimated to be 300-500 per year.
Where there were no roads, drug cartels made roads. Where there were no
trails, human masses trekking northward made trails. National
Geographic named Organ Pipe National Monument the most dangerous park
in the American system. It got so bad that signs are posted warning
travelers not to stop for dead bodies! One retired Border Patrol agent
talked about being involved in an operation whereby 19 bodies were
recovered in one operation out on the western boundary of the Cabeza
Prieta Wildlife Refuge in designated wilderness. The Border Patrol was
not allowed to drive to the bodies. They flew, and even then there were
ramifications and threats. The agent talked with trepidation of the
smell in the helicopter for months following that harrowing event.
Whole industries have grown up opposite the expanse of national
park lands supporting the flow of illegal immigrants northward. Buses
run around the clock on Mexican Highway 2. Videos are played educating
illegal immigrants how to avoid American Border Patrol activities, how
to survive in the wilderness and what to expect. Passengers can halt
the buses at any point and commence their treks northward. By Park
Service estimates, illegal immigrants outnumber paid park visitors at
least ten to one. Border Patrol officials believe that number is at
least half of the actual.
Park Service officials at Organ Pipe did a study to quantify the
impact on the monument. In a representative one square kilometer area
out in the designated Wilderness of the Valley of the Ajos, an
unsuspecting family taking an afternoon hike would encounter the
following:
seven illegal rest sites
15 sets of illegal vehicle tracks
40 sites of illegal trash disposal
48 discarded water bottles
one set of illegal bicycle tracks
one set of illegal horse tracks
three illegal abandoned camp fires
254 illegal foot trails
The foregoing was all on designated wilderness where mechanized
entry is not allowed and where, to this day, the ability of the Border
Patrol is constrained by wilderness policy.
The Texas Phenomena
While investigating the Arizona border threat, a High Intensity
Drug Trafficking Area (HIDTA) report was found. It revealed information
that PFPOWH believes has never been exposed to Congress or the American
people. Data from Aerostat summaries was analyzed and set forth in a
manner that attempted to quantify radar and drug interdiction events by
mile of border. The result of the analysis is as follows:
----------------------------------------------------------------------------------------------------------------
CARTEL RADAR CONTACTS DRUG SEIZURES
----------------------------------------------------------------------------------------------------------------
TEXAS 06 .02
----------------------------------------------------------------------------------------------------------------
NEW MEXICO .11 .30
----------------------------------------------------------------------------------------------------------------
ARIZONA .60 .53
----------------------------------------------------------------------------------------------------------------
(per mile of border)
Why do cartel aircraft radar contacts run one contact per nearly 20
miles of border in Texas while in Arizona they run one per less than
two miles of border a rate that is ten times higher than Texas?
Likewise, why do drug seizures run one per 50 miles of Texas border
while seizures in Arizona run one in less than two miles of border?
Three retired Border Patrol officials were asked that question.
The first, Gene Wood, former chief of the McAllen (Texas) sector
said, ``You've got private ownership of land with a very aggressive
citizenry in Texas protecting their property rights. They interact
immediately and continuously with the Border Patrol and the Border
Patrol has full and unencumbered access to everything, at any time,
(and) for any reason.''
Next, Richard Hays, former Chief of Flight Operations, United
States Border Patrol, responded to why the New Mexico result is
intermediate between the Texas and Arizona results. He said, ``Like
Arizona, there is a domination of federal lands along the border, but
New Mexico still has a resident ranching community. Go over into
Arizona and nearly the entire border is federally controlled land. The
ranchers have been eliminated or so decimated that they can no longer
maintain a dominant presence. They are gone from the monuments and the
wildlife refuges, and the infrastructure that they built and maintained
is gone as well. The Forest Service allotments are so gutted that those
folks are in a precarious position, and the Tohono O'odon Reservation
and the BIA has no idea how to control the situation.
The third official, Jim Switzer, former Yuma Sector Chief and
current chair of the National Association of Retired Border Patrol
Officers said, ``New Mexico and Texas still have a vested, engaged, and
resident population of citizens who will protect their private property
rights. Their Arizona counterparts have been largely eliminated. Where
there are resident Americans who have property rights at risk, there
remains a working relationship with the Border Patrol. If there is
activity, the Border Patrol will be contacted and welcomed. That is not
the case where only federal (land) agencies are present.
The Mirror Effect
Mr. Wood, former McAllen Sector chief, prompted a further
investigation into something that had started to appear in the
investigative process. He said, ``In Texas, there is a united front
that is committed to protecting the border and eliminating drug
running. Interestingly, there is also a strong influence adjacent to
the border. Where there is long standing American (land) ownership
there is normally a strong Mexican counterpart.''
Two issues stand out in that statement. The first is whether or not
there is a mirror effect of activity adjacent to the maize of free
flowing corridors running north from the border on park lands. The
study from Organ Pipe describes that phenomenon exactly. On lands of
Organ Pipe's sister park, the Mexican El Pinacate Biosphere Reserve
where once pristine lands spread for miles across the desert, a whole
infrastructure of businesses has grown up supporting the migration of
drugs and humans northward. Colonias, illegal roads, bus stops, filling
stations, barber shops, tire shops and trash and destruction of the
natural environment have spread across the entire area. American
policies have extended the environmental destruction across the border.
As for the issue of mirror images of land ownership, Mr. Wood's
comments become even more intriguing. Could it be possible that social
implications of the mirror effect exist? The argument that evolved from
Mr. Wood's comments has huge implications. It is this. Where a strong
American exists on the border normally a strong counterpart exists. The
American, protecting his property rights, is a formidable foe. He will
not put up with nonsense and the Mexican counterpart knows that. The
Mexican (or the American in a reverse situation) is put in a situation
whereby he is less willing or inclined to do something that will breach
that unwritten relationship. If one of them is removed, however, a new
relationship is without boundaries. Time and a personal relationship
have not cemented any demand on etiquette or standards. If there is a
new party that is inclined to do something illegal or is inclined to
submit to a bribe, then all bets are off and a breach in security is at
hand.
That is exactly what has happened in Arizona. Drug cartels can
simply buy out unopposed, unsupported property owners. The internal
policing action is eliminated. Think of the implications. Where there
are strong relationships in Texas that exist without additional cost to
the American tax payer, they, in large part, no longer exist in
Arizona. How expensive is the dismantling of that relationship
mechanism? Who knows what the cost to society is, but we do know that
the cost of policing action on the 30 miles of Organ Pipe boundary it
is now running $1,922 million a year (and that does not include Border
Patrol costs on the same 30 miles of border). In the 2009 Park Service
document cited herein, that sum appears to be in jeopardy of
increasing. The report notes that ``in the last six months, the park
has seen a significant increase in vehicle based smuggling.''
The committee is asked to consider that land agencies and
conservation groups alike have waged a war against grazing on public
lands. For the first time, there is evidence to show that there are
large opportunity costs in removing federal lands ranchers. In Texas,
the ranching community continues to provide a costless buffer for
American security interests. In Arizona, those folks have been
decimated, and the flood gates of human and drug smuggling has been
opened without hope of nearby recovery.
The Road and the Railroad Track
In explanations from Senator Bingaman's staff as to the assurances
of absolving security risks, the MOU (described herein) and the issue
of a buffer added to the south side of the Potrillo Mountain complex
for Border Patrol access and interdiction efforts are repeated. Again,
retired Border Patrol officials who are not afraid of career issues
step forth and talk. It is not the proximity of the border itself to
the border wilderness boundary that poses the greatest risk to this
nation. It is the proximity of the nearest east west road to the border
wilderness boundary that is the danger.
In the Arizona situation, Mexican Highway 2 played an immense role
in moving the soft point of entry from urban centers to the desolate
wilderness areas of national park lands. The path of that parallel
highway to the border varies, but it ranges up to several miles from
the border fence itself. Data from the Park Service data indicates that
entry points are continuous along the boundary; hence, illegal
immigrants are walking north from the highway in a myriad of places and
from a large variation in distances. Retired officials remind us that
New Mexico Highway 9, the nearest east west road adjacent to the
Potrillos is the real risk factor, not the border. Cartels will probe,
and move, and jockey, and adjust and they will find the soft points. On
the whole, they will not be sending dope north from Mexico by human
transportation. Rather, they will stage the dope and deliver it by
vehicle to points along Highway 9. They will then run it north, either
by vehicle where a 1.5 to 3 mile buffer is eaten up in less than three
minutes, or by starting simultaneously a number of runners going north
through the proposed wilderness to points along I10 or to the next
stage from I10 north through more proposed wilderness in the Uvas or
Broad Canyon areas to stage termination points along Highway 26.
Remember, Organ Pipe cannot control mechanized access with 28 law
enforcement agents dedicated to law enforcement and an unknown number
of Border Patrol officials all protecting 30 miles of wilderness border
with Mexico, so how can anyone think that a single BLM ranger and an
unknown number of Border Patrol agents halt all entry along the a
similar expanse of land with 23 miles of boundary exposure?
Finally, the modernized Burlington Northern Santa Fe Railroad line
forms a portion of the Potrillo Mountain complex on the northeast side
of the proposed plan. Ask any national security expert what that rail
line poses in terms of a national security risk, especially the issue
of weapons of mass destruction and there will be a single, united
response.
RANGE IMPROVEMENTS
The Dona Ana County wilderness proposal is hard pressed to maintain
the fidelity of the original standards of 1964. It would be difficult
for anyone to find 5,000 acres of contiguous lands that are largely
untrammeled by man. In fact, there four wells, 16 improved springs, one
building, 11 corrals, 60 earthen reservoirs, 13 water storage tanks, 31
troughs, and three windmills within the footprint of the proposal
(Exhibit C).
In discussions with the BLM in the summer of 2008, two of the
permittees asked for preliminary consideration for a series of
pipelines and troughs from existing water sources to better utilize
lands where cattle must walk three miles to water. The response was
inconclusive because the location of the troughs would be within a mile
of the footprint of a Wilderness Study Area (WSA). If BLM
administration concludes that improvements within a mile of a WSA are
going to be subject to stricter wilderness management demands, ranchers
affected by Wilderness designation are concerned that the footprint of
the designated land affects improvements out to a mile buffer of the
boundary. If that is the case, the impacted improvement inventory
expands to 20 wells, 19 springs, 11 buildings, 34 corrals, 116 earthen
dams, 35 water storage tanks, 85 troughs and 10 windmills.
Data from New Mexico State University and elsewhere confirm that
when the temperature reaches 103 F, a cow and her calf, a pair, will
drink upwards of 32 gallons of water per day. In this desert
environment, such a day is expected. Any steward of the range has
nightmares of finding cattle that are standing in front of an empty
trough bawling in desperation. Experiencing this event one time will
forever impact your tolerance for constraints that limit the ability to
maintain adequate water supplies. Every one of those same stewards
knows that when such a condition is impacting cattle it is impacting
wildlife as well. Monitoring water and water supplies is a daily demand
in this desert country. Any limitation of not doing so is not just an
economic hardship, it has inhumane consequences.
Using our model prompted by the BLM wilderness buffer management
expectation, there are 60 miles of underground pipeline affected by
this proposal. If those pipelines cannot be checked by mechanized
vehicle, those inhumane consequences are expected. There is no way
those miles of pipeline can be checked and serviced by horseback.
In the modern West, labor has been replaced by fewer people
constantly in motion. Cattle are driven fewer miles. Calves that were
once weaned and driven from their mothers are now hauled. Cattle slated
for market are now penned and sorted in distant pastures and hauled to
markets from those locations. Water sources are checked and maintained
from pickups and ATVs. Roads have become vital to the ranch operations
and it is no longer possible to get by with unimproved two tracked
roads. In this model there are 481 miles of roads. This is not a
rancher driven number. It is from the Dona Ana County census data. When
the S.1689 maps are analyzed, the sum of the road mileage is only a
fraction of the U.S. census records.
These roads are not just a part of the infrastructure of the
ranches. They have become multigenerational access routes for citizens
who have deep ties to the land for a variety of wholesome and simple
uses. Taking those few freedoms from a county resident is not the
blissful salvation that is being advertised. The great majority of the
users of these roads are fully in agreement that off-road activities
are not right and they will defend that position. Ranchers find few
examples of blatant off-road use by law abiding citizens. Drug runners
are another story, and, rest assured, the Arizona experience has
demonstrated that drug runners could care less about wilderness
constraints.
In addition to the data provided heretofore, the remaining
improvements on these lands included 297 miles of fence line, 67 miles
of electric transmission lines, and 61 miles of commercial pipelines
(gas and oil). From an objective thinker, reading the Wilderness Act
and digesting these improvement totals, the true fidelity of wilderness
in Dona Ana County, New Mexico, is being stretched beyond measure.
WATER PROJECTS
Elephant Butte Irrigation District is one of the most unique water
districts in the nation. The district management and users have not
only paid for the district, they have accomplished some very
interesting undertakings. They now have the right to capture and reuse
storm water within the confines of their district watershed. This
greater project requires some very sophisticated flood monitoring
equipment that prompts district personnel to prepare facilities to
capture and reroute flood waters into their system. The flood
monitoring equipment must be installed in areas impacted by wilderness
consideration.
Likewise, the system of flood control dams installed many years ago
by the Bureau of Reclamation has been turned over to the district for
management. These facilities and similar future opportunities must not
be constrained by wilderness or NCA constraints for repairs or
expansion.
Dona Ana County is a desert. There is no magical source of water.
There is no Lake Shasta to drain into an aqueduct to enhance the
limited supply of Rio Grande drainage and underground water sources.
This is an area that has some distinct relative agronomical advantages
and people are going to continue to want to come to the area for all of
the reasons it is so popular. As such, water and the supply of water
must be one of the two or three most important things in the vision of
any leader. Water is vital and every opportunity to enhance the supply
of water is not just prudent, it is imperative. No wilderness bill
should be used to limit that most important resource.
The Broad Canyon area is the most significant watershed in the
county. It is not only important for flood water capture and reuse, it
is the most logical area to plan for future water supply impoundment.
Off-basin storage has been the option most used in the storage of water
sourced from nontraditional sources, when closed, underground basins
are not suitable for storage. In Dona Ana County, this might not happen
in the next generation, but it will happen. It is not prudent to
disallow future citizens the opportunity to pursue projects that will
be possible. Broad Canyon is the major, and perhaps the only, area
where such undertakings are possible.
ENERGY CORRIDORS
The SunZia energy transmission concept that is envisioned to
provide enhanced energy transmission capability from renewable energy
projects in New Mexico has huge implications to this county and state.
The preferred route from Hatch to Deming, New Mexico passes north of
the area impacted by the wilderness proposal, but the alternate route
runs right through the Broad Canyon area. If the solar energy studies
areas being evaluated by Argonne National Laboratory in conjunction
with the BLM determine that the two major areas in southern New Mexico
are candidates for solar generation consideration, the routing of that
power line will be altered. If wilderness legislation precludes the use
of the energy corridor, Dona Ana County runs the risk of being dropped
from conceptual projects. That must be avoided.
Likewise, any likelihood of a natural gas pipeline from the Belen
area into the southland would come through that same corridor. Altering
the routing would push the pipeline at least to the county line. That
would have huge implications in the cost structure of the project.
Wilderness and NCA designations affect that planning.
RAIL LINE ACCESS
The congestion of the interior of the Mesilla Valley grows every
year. There is a matter of safety and traffic flow enhancement centers
around the rerouting of the north/ south rail line that currently runs
parallel to New Mexico Highway 28 as far north as Rincon, New Mexico
Plans to move that line out of the valley feature the Broad Canyon
area. This is a simple and necessary adjustment for surface and rail
line flows through the area. Wilderness and or NCA designation impact
that planning.
RENEWABLE ENERGY PROJECTS
Currently, there is a solar energy project underway in the Santa
Teresa area. Additionally, there are two large solar study areas (noted
above in the energy corridor section) that might be future sites of
solar generation. These areas combine to form a footprint of 73,794
acres. If the study is positive any project will necessarily be
impacted on transmission line capacity. It is imperative that
wilderness and or NCA consideration in the Broad Canyon not impact
negatively on such a concept. Such an eventuality would impact Dona Ana
County dramatically.
Likewise, the BLM has served notice that a wind energy study will
be done on the western edges of the Goodnight Mountains just west of
the county. If that study proves successful the same conditions are
likely to occur on the west side of the Rough and Ready Hills and other
portions of the Broad Canyon area. Wilderness and or NCA designation
would stand to impact that result.
MINES
There are a total of 23 mines in the footprint of the wilderness
and NCA proposals. Most of those mines are not active, but all of those
mines are subject to safety and mitigation laws and requirements. Like
all mines, they also represent increased risk to Superfund findings.
Not wanting to run the risk of redundancy, it seems confounding to
elevate any land into wilderness status when such a stretch from
``lands largely untrammeled by man'' must be accompanied by gimmicks to
mitigate the impact of man in order to force the designation. If a
superfund site is ever found, the prospect of a contractor who still
has knowledge and possession of mule teams and Fresno scrapers is
likely to be hard to find.
OIL AND GAS LEASES
The 1995 National Oil and Gas Assessment of the South-Central New
Mexico Province, prepared by W. C. Butler, discusses hypothetical oil
and gas potential. There have been very few wells drilled in the
province, so the report is based on the geological history of the area.
The report does state ``the number and excellent quality of hydrocarbon
shows in the few Pennsylvanian and Permian penetrations indicate the
probable existence of commercial hydrocarbons'' (Pyron and Gray, 1985).
The report also states, ``The shelf strata of the Orogrande Basin,'' an
area within the province, ``have been compared to the contemporaneous
highly productive reservoirs of the Delaware Basin of west Texas.
Mississippian through Permian formations of the Delaware Basin has a
cumulative production of more than 3 BBO and 5.0 TCF of nonassociated
gas'' (Robertson and Broadhead, 1993).
According to information obtained from the National Integrated Land
System, Dona Ana County has had a long history of oil and gas leases on
public lands. Most of these leases have never been developed and, as a
result, have expired. oil and gas companies have to make decisions on
which leases to explore and develop based on various logistical and
economic criteria. As the price of oil and gas increase and as
technology advances make evaluation and development more cost
effective, development of these energy resources may occur. Currently,
there are ten authorized oil and gas leases which are partially or
wholly contained in the proposed Wilderness and NCA boundaries. These
leases cover over 15,000 acres. As we have discussed in other areas of
this testimony covering energy development, designation of Wilderness
and NCA would significantly affect the exploration and development of
these important and much needed potential oil and gas reserves.
RIGHTS OF WAY
According to the National Integrated Land System, the BLM has
entered into rights of way agreements for one pending solar energy
project, 36 road and utility and 12 oil and gas pipeline projects which
are included in the areas in the proposed Wilderness and NCA
boundaries. The National Integrated Land System has a disclaimer which
indicates for various reasons the system does not contain all
agreements. Maps which have been produced which include both line data
and agreement data indicate that there should be many more agreements,
but the data that is available clearly shows that there are a
significant number of pre-existing rights created under these
agreements which will be impacted by the designation of Wilderness and
NCA. The Wilderness Act includes language that precludes the use of any
mechanical equipment. How will any maintenance or replacement of
equipment under these agreements occur? These pre-existing rights need
to be included in the purposes section of the NCA legislation, as
litigation or adjudication will be required every time someone wants to
exercise their rights.
GRAZING
We have concerns on the ability of ranchers to continue their
family operations should this bill become law. Those concerns apply to
both proposed designations: wilderness and national conservation area.
With respect to wilderness, much is made of the Grazing Guidelines
(House report No. 101-405). When Congress had the foresight to adopt
those provisions, most wildernesses were in the high country. In many
instances, those high country allotments had natural water, natural
boundaries and were seasonal operations only. The allotments addressed
in this legislation occur in the desert. There are no natural waters or
boundaries and the operations are year round. Based on these factors
and discussions with BLM, we have no confidence the guidelines as they
exist will be sufficient and the ranching community will suffer the
consequences.
With respect to national conservation areas, our concerns are equal
footing for grazing, the consistency language, the ``where
established'' limitation and the ability to maintain range improvements
and standard ranching operations. For further discussion of these
issues, see Exhibit D.
WILDERNESS DEGRADING INFRASTRUCTURE
The proposed wilderness areas included in S. 1689 are not free of
the noticeable imprint of man which the Wilderness Act of 1964
required. These areas have been inhabited by man since recorded history
and have been heavily impacted since Onate came to the territory in
1589. These impacts have been discussed under the above sections: range
improvements, water projects, energy corridors, rail line access,
renewable energy projects, mines, oil and gas leases and rights of way.
Each of these impacts degrades wilderness characters to different
levels in each of the proposed wilderness and NCA areas. The impacts
show up dramatically in the series of maps in Exhibit E--Desert Peaks
Wilderness Area Evaluation. The maps show the impacts as each type of
infrastructure is overlaid on the footprint of the proposed wilderness
areas. The last map in each set show the cumulative impact of these
improvements and infrastructure and demonstrates what we feel are over
whelming reasons to protects these lands with a designation other than
wilderness. They are worthy of protection, but don't fit the gold
standard of wilderness. Exhibit F is the Potrillo Mountains Wilderness
Area Evaluation and Exhibit G is the Organ Mountains Wilderness Area
Evaluation.
RENEW NEW MEXICO AND STEWARDSHIP PROJECTS, CURRENT
The Renew New Mexico undertaking, largely promoted through the
guidance of BLM State Director, Linda Rundell, is finding a very
positive acceptance by a large cross section of stakeholders. This
partnership project is an aggressive plan to restore our state's
grasslands, woodlands, and riparian areas to healthy and productive
conditions. Since its inception in 2005, Restore New Mexico has become
the model for rangeland conservation in the western United States. This
year, 2009, the project will reach the 1,000,000th acre in partnership
activities.
One of the most apparent components of the project is the
eradication of creosote. Creosote is the equivalent of sage brush to
the southern tier states and it is found in large reaches of Dona Ana
County. It can only be eliminated by stewardship projects that include
herbicide and then a regimen of fire. By strict measure of the
Wilderness Act, such activities are not allowed in wilderness.
In conjunction with brush control, water projects that serve to
better utilize range for both livestock and wildlife are being
undertaken. These complimentary projects are being driven largely by
EQIP partnership contracts. Such projects installed by mechanized means
will not be allowed in wilderness.
As a matter of interest, there are over 200 water installations on
federal lands ranches on the west side of Dona Ana County from the
Mesilla Valley to the county line where the majority of S.1689 is
centered. Only one (1) of those water sources is a permanent, natural
source of water. The remainder are there because of cattle. Wildlife
are impacted every bit as much as cattle in this dry environment. If
those waters and projects that enhance the supply and distribution of
those water sources are negatively impacted by wilderness, inhumane
consequences can be expected.
RENEW NEW MEXICO AND STEWARDSHIP PROJECTS, FUTURE
The guiding factor in the Restore New Mexico brush control planning
is slope. Creosote grows naturally on shallow soils overlaying caliche
deposits. Where Creosote stands have expanded into deeper soils is the
primary target area for control measures. Slope is a defining factor in
whether or not projects can be expected to work. Most of the areas
being considered for wilderness are good candidates for brush control,
but some are not. As such, there is less likelihood that future
projects can or will be undertaken. Likewise, water distribution
supporting the outcome of the brush control measures will be limited on
more severe slopes. In fairness to wilderness consideration, this
factor must be considered.
STAKEHOLDER MEETINGS
From the stakeholder meeting process (Exhibit A) that took place in
2006/2007, the recommendations from the position papers written by the
eight stakeholder groups can be summarized as follows:
3 Organ Mountain WSA's--Received a near unanimous vote for
wilderness
Mt. Riley and Aden Lava Flow WSA's--Received 5 votes (slight
majority) for wilderness
West Potrillo Mountains WSA--Received 4 votes against wilderness
Robledo Mountains WSA--Received 5 votes against wilderness
Broad Canyon (currently under Multiple Use Management)--Received 6
votes against wilderness
East Potrillo Mountains (currently under Multiple Use Management)--
Received 6 votes against wilderness
Organ Mountains South unit (currently proposed for NCA)--Received 4
votes for NCA
Organ Mountains North unit (currently proposed for NCA)--Received 3
votes for NCA
It can be concluded from this citizen input that there was strong
support for wilderness in the Organ Mountains. The rest of the lands
were not strong candidates for wilderness and a preference for
returning the majority of the land back to multiple use management or
National Conservation area management was prevalent.
SUMMARY
I appreciate the opportunity to be able to present to the Committee
information and concerns on behalf of People For Preserving Our Western
Heritage. I trust that the Committee will consider the need for an
alternative land protection designation, seriously evaluate the real
border security threats to the local ranch families and the communities
in southern New Mexico and recognize the value of having productive
ranch enterprises contributing to the first line of defense in rural
America.
We strongly believe in protection of the Organ Mountains and
surrounding desert peaks. We do not believe that all of the areas
proposed should be wilderness; they should be protected with another
designation. We feel that Senator Bingaman and the Committee have an
opportunity to protect lands and at the same time recognize the
importance of history that has become part of the landscape in Dona Ana
County.
Mr. Schickedanz. I thank you for the opportunity to appear
before the committee and I stand ready to answer any questions.
The Chairman. Thank you, doctor.
Senator Bingaman.
Senator Wyden. Thank you very much, Mr. Chairman, for
accommodating our schedule.
Let me thank both Commissioner Butler and Dr. Schickedanz
for taking the time to come and talk to us about this bill.
Commissioner Butler, let me ask you first of all whether
the designation of new wilderness and national conservation
areas as we contemplate in this bill would in any way in your
view limit or impede the city of Las Cruces or the county's
ability to develop and grow as they intend to over the coming
years?
Mr. Butler. Senator, members, of this committee, no, it
won't. Actually these designation areas, wilderness areas, are
the magnet, are the attraction to Las Cruces. No more than the
Lincoln Memorial or the Washington Monument, These particular
designated areas are the very thing that attract business,
attract tourists, attract residents and retirees to the area.
So this is a big plus for Las Cruces. In fact, it will help
motivate growth and development of the area. It will be an
economic stimulus package for us.
The Chairman. Thank you very much.
Dr. Schickedanz, let me ask you. Your group has proposed a
new rangeland preservation area designation. You testified
about that as an alternative to the new wilderness and national
conservation area designations that we have in this bill. There
seems to be agreement--your group seems to agree that the areas
should be withdrawn from mining and oil and gas development and
that off-road vehicle use should be limited, just as we
proposed. The main difference seems to be related to surface
lands, use of the surface, especially grazing. Am I accurate in
that description so far?
Mr. Schickedanz. Mr. Chairman, Senator Bingaman, yes. I
think we disagree probably on the access or the timing of
access. The grazing standards that were developed in I think
1990 or 1994 as a supplement to the Wilderness Act provide for
occasional use, but we have not found anybody that will
describe what ``occasional'' is. The local and State director
don't want to make a statement on what ``occasional'' is. So in
the desert Southwest, where water is very important to
livestock operations, being able to check those waters, to
check pipelines, becomes very important. If ``occasional'' is
going to be a year, that's too long. Many times daily checking
of some of those pipelines so that livestock do have water--so
the ``occasional'' is what we're interested in.
The Chairman. So you would like it clarified that the
occasional use that you would be permitted under this
legislation would be as required in order to ensure that
there's adequate water for livestock?
Mr. Schickedanz. Yes, sir.
The Chairman. Let me stop with that. I know Senator Udall
also has questions. Again, thank you both for being here.
Senator Wyden. Senator Udall.
Senator Udall. Thank you, Chairman Wyden.
Thank you both for being here. Commissioner Butler, you've
been in public service a while. I talked about in my testimony,
Senator Bingaman talked about in his, about the coalition that
backs this. I only mentioned a few of the groups, but there is
extensive and widespread support, with the Southwest chapter of
New Mexico Quail, Dona Ana County Associated Sportsmen, Back
Country Horsemen, League of Women Voters. The list goes on and
on.
Have you ever seen in your public service such a broad
support for this piece of legislation or any other piece of
legislation down there?
Mr. Butler. Senator Udall and members of this committee,
no, I haven't. In fact, I really take my hat off to your staff,
Senator Bingaman, who walked through this community, walked
through our rural areas, had these meetings, had extensive
meetings, hundreds of meetings with these various groups.
I can assure you that even the groups mentioned by Mr.
Schickedanz--that there are many individuals within those
organizations that support wilderness. That's what I've seen to
date and that's why I'm here to date, that when they see the
consensus that has been built--and I'm sure that there are some
concerns with the opponents. But the consensus that has been
built in Dona Ana County regarding wilderness and the NCAs,
it's unbelievable.
Senator Udall. Thank you.
Mr. Schickedanz, this issue of occasional use in grazing.
These areas, a significant part of this area has been managed
as wilderness study for over 25 years. It's been in wilderness
study. Have you found that working with BLM and interpreting
that term ``occasional,'' has it worked out? Have there been
problems?
Mr. Schickedanz. OK. Mr. Chairman and Senator Udall, the
areas have been managed under wilderness study areas.
Senator Udall. Which is treated just like a wilderness.
Mr. Schickedanz. Almost, except the access. Under the
wilderness study areas they're able to use some of the roads
and trail that goes to the various improvements. When it
becomes wilderness those will no longer be available unless
they're specifically identified and allowed. So that's where we
differ on what ``occasional'' use becomes under the Wilderness
Act.
So again, I think that raises the issue that we would like
to see the lands protected, but under a less restrictive
utilization of access.
Senator Udall. Thank you. I know you've given extensive
testimony here and I look forward to working with Senator
Bingaman and the committee to see if it's possible to resolve
some of your concerns. Thank you very much.
Senator Wyden. I thank both of my colleagues. With
apologies to Mr. Mallott and Mr. Claus, we will follow up on
your views.
With that, we're going to turn it over to Senator
Murkowski. Senator Murkowski, you proceed as you would like
with the vote coming up and what you can get in before the vote
and what you feel is necessary, if it's required afterwards.
Senator Murkowski. Thank you, Mr. Chairman.
Senator Wyden. Why don't we also excuse our 2 New Mexico
witnesses.
Senator Murkowski. I have no questions of the New Mexico
witnesses.
Senator Wyden. OK. Thank you all.
Senator Murkowski [presiding]. Gentlemen, what we can do,
I'll just keep an eye on the vote. But I'd like to try to get
comments from both of you before I have to go off. I understand
that there will be two votes, so I'm going to try and time it
so that we can do two for one and I'm not gone from the hearing
room for too long.
But with that, Mr. Mallott, if you want to lead off.
STATEMENT OF BYRON MALLOTT, BOARD MEMBER, SEALASKA CORPORATION,
JUNEAU, AK
Mr. Mallott. Thank you, Senator Murkowski.
With reference to the comments that were made by the
administration witnesses and their desire that the Tongass
Futures process continue and that it will be important in their
deliberations on an ongoing basis, I just want to mention for
the record that I am a member of the Tongass Futures roundtable
and I have participated in most all of the meetings that have
taken place.
I have submitted for the record detailed testimony on the
Sealaska land entitlement legislation. I'm prepared to answer
any questions that you may have. I want to spend a few moments
talking about ANCSA because that is key to the purpose and the
philosophy of the legislation before us. ANCSA, the Alaska
Native Claims Settlement Act, its policy action of Congress
kept us on and gave Alaska's Native peoples some of their own
lands to retain.
The focused public policy imperative at the time, which I
believe has been amply met, was on economic development. The
lands will allow us to continue that public policy. It also
gave us an opportunity to pursue a larger, a more whole future
tied to that land and its seamless connection to the other
lands in the Tongass Forest. It has been said often that every
acre in the Tongass is precious to someone. Every acre to
Native peoples in the Tongass is our homeland. No matter what
else happens, no matter how that acre is treated, it is our
homeland.
There are some 20,000 descendants today of the historical
traditional people of the Tongass--Tlingits, Haidas, and more
recently Tsimshians. One of the things that I think and I'm
pursuing in the Tongass Futures roundtable process is that
public policy should acknowledge that the Tongass is a Native
homeland, that simple statement with no strings attached.
When I think about it, Senator, the Tongass National Forest
was created in 1906. So in 2056 there will be the 100th
anniversary. At that time it would seem to me that we'll either
have a forest that is recognized for its environmental
circumstance, its sensitivity, the accomplishments that have
been made there--that will be possibly sufficient. But I think
that when we look back at the Tongass at its centennial to be
able to say that this is a Native place, that it is the
homeland of the first peoples, that their efforts to share and
be part of all of those that came later were done in good will
on the basis of respect and a desire to come and to work
together would be the best kind of way to celebrate this
incredible national vision.
I think it would also, looking at this piece of legislation
which finalizes our land entitlements, also be able to be
pointed to as an example at that time in our history that ANCSA
itself was also a success.
Thank you.
[The prepared statement of Mr. Mallott follows:]
Prepared Statement of Byron Mallott, Board Member Sealaska,
Corporation, Juneau, AK
S. 881
Mr. Chairman, Members of the Subcommittee and Committee:
My name is Byron Mallott, and I am a Board Member for Sealaska
Corporation, as well as a former President and CEO. I am from Yakutat,
Alaska, and I am Shaa-dei-ha-ni (Clan Leader) of the Kwaashk'i Kwaan.
My Tlingit name is K'oo deel taa.a. Accompanying me today in the
hearing room is Chair Albert Kookesh, Vice Chair Rosita Worl, Director
Clarence Jackson, President and CEO Chris McNeil, and other executives
of Sealaska.
Thank you for the opportunity to testify on behalf of Sealaska
Corporation regarding S. 881, the ``Southeast Alaska Native Land
Entitlement Finalization Act,'' or what we refer to as Haa Aani in
Tlingit, which in English roughly translates into ``Our Land''. Haa
Aani is the Tlingit way of referring to our ancestral and traditional
homeland, the place of our ancestors, the foundation of our history and
culture, and the way that we identify where we are from. Sealaska is
the Alaska Native Regional Corporation for Southeast Alaska--one of 12
Regional Corporations established pursuant to the Alaska Native Claims
Settlement Act (``ANCSA''). Our shareholders are descendants of the
original Native inhabitants of Southeast Alaska--the Tlingit, Haida and
Tsimshian people. Our ancestors once used and occupied every corner of
Southeast Alaska and our cultural and burial sites can be found
throughout the region. This legislation is a reflection of the
significance of Our Land to our people and its importance in meeting
our cultural, social and economic needs.
We consider this legislation to be the most important and immediate
``economic stimulus package'' that Congress can implement for Southeast
Alaska. Sealaska provides significant economic opportunities for our
tribal member shareholders and for residents of all of Southeast Alaska
through the development of our primary natural resource--timber.
Sealaska and its subsidiaries and affiliates expended over $45 million
in 2008 in Southeast Alaska. Over 350 businesses and organizations in
16 Southeast communities benefited from spending resulting from
Sealaska activities. We provide over 363 full and part-time jobs with a
payroll of over $15 million. Including direct and indirect employment
and payroll, Sealaska contributed 490 jobs and approximately $21
million in payroll.
We are proud of our collaborative efforts to build and support
sustainable and viable communities and cultures in our region. We face
continuing economic challenges with commercial electricity rates
reaching $0.61/kwh and heating fuel costs sometimes ranging above $6.00
per gallon. To help offset these extraordinary costs, we work with our
logging contractors and seven of our local communities to run a
community firewood program. We are also the primary contributor of
cedar logs for the carving of totems and are now working with the
communities to provide cedar carving planks to schools and tribal
organizations. We are collaborating with our village corporations and
villages to develop hydroelectric projects.
The profits from our timber program support causes that strengthen
Native pride and awareness of who we are as Native people and where we
came from, and further our contribution in a positive way to the
cultural richness of American society. The proceeds from timber
operations on our lands have allowed us to make substantial investments
in cultural preservation, educational scholarships, and internships for
our shareholders and shareholder descendants. Through these efforts we
have seen a resurgence of Native pride in our culture and language,
most noticeably in our youth, who are constantly exploring what it
means to be Native today. Our scholarships, internships and mentoring
efforts have been successful beyond our wildest dreams, with our
corporate shareholder employment above 80% and shareholders filling the
most senior positions in our corporation. None of this would have been
possible without the passage of ANCSA, which, in some ways, remains a
promise unfulfilled.
Congress enacted ANCSA in 1971 to recognize and settle the
aboriginal claims of Alaska Natives to the lands that we have used
historically for traditional, cultural, and spiritual purposes. ANCSA
allocated 44 million acres of land to Alaska's Native people, to be
allocated among and managed by 12 Alaska Native Regional Corporations
and more than 200 Village Corporations. Although ANCSA declared that
the land settlement ``should be accomplished rapidly, with certainty
[and] conformity with the real economic and social needs of [Alaska]
Natives,'' it has now been more than 35 years since the passage of
ANCSA and Sealaska has not yet received conveyance of its full land
entitlement.
Sealaska asks your support for the enactment of S. 881 because it:
allows Sealaska to finalize its ANCSA land entitlement in a
meaningful way that fulfills the purposes of ANCSA;
will redress inequitable limitations on Sealaska's land
selections by allowing it to select its remaining land
entitlement from designated federal land outside of the
original and inadequate designated withdrawal areas;
allows for Alaska Native ownership of sites with sacred,
cultural, traditional and historic significance to the Alaska
Natives of Southeast Alaska;
creates the opportunity for Sealaska to support a
sustainable rural economy and to further economic and
employment opportunities for Sealaska shareholders and other
rural residents;
provides a platform for Sealaska to contribute to the
Southeast Alaska economy, a region that is struggling overall,
especially in our rural Native villages; and
provides real conservation benefits in the region.
In sum, this legislation resolves the long-outstanding Sealaska
entitlement in a manner consistent with Congress's stated objective to
act through ANCSA to promote economic development, and enables the
federal government to complete its statutory obligation to the Natives
of Southeast Alaska. In fact, completion of ANCSA conveyances was
recently recognized by Congress as a priority through the enactment in
2004 of the Alaska Land Transfer Acceleration Act (P.L. 108-452).
There is a compelling, equitable basis for supporting passage of
this legislation. First, the original ANCSA withdrawals demonstrated a
lack of understanding of the geography of the region, and a series of
later congressional actions further undermined the quality of the lands
that were available for selection by Sealaska. As just one example,
over 44% of the area within the withdrawal areas is covered with
saltwater. Other factors that have severely limited the availability of
lands to Sealaska are discussed in the ``findings'' section of our
legislation. Second, there is no dispute that Sealaska has a remaining
land entitlement. This legislation does not give Sealaska a single acre
of land beyond that already promised by Congress. Third and finally,
Sealaska has attempted to work closely with industrial users,
conservation organizations, Native institutions, and local communities
to craft legislation that provides the best possible result for the
people, communities and environment of Southeastern Alaska. One thing
has become extremely clear in our effort to resolve Sealaska's land
entitlement--that every acre of Southeast Alaska is precious to
someone. Moreover, what is important or valuable to one group may not
be important or valuable to another. Simply put, with the vast array of
interests in Southeast Alaska, there is no way to achieve an absolute
consensus on where and how Sealaska should select its remaining
entitlement. However, we truly believe that this legislation offers a
good solution that builds on our engagement with all regional
stakeholders, and we remain committed to work with everyone to refine
the selections and the terms of the legislation.
OUR ANCSA LAND ENTITLEMENT AND SELECTION LIMITATIONS
ANCSA provides a land allocation to Sealaska pursuant to Section
14(h)(8) of the Act. Our right to this land entitlement is undisputed.
The only remaining issue is ``where'' this land will come from. Based
on Bureau of Land Management projections for completion of the 14(h)(8)
selections, as well as our own estimates, the total entitlement could
be up to 85,000 acres of land remaining to be conveyed to Sealaska.
Uniquely, ANCSA limited Sealaska land selections to withdrawal areas
surrounding certain Native villages in Southeast Alaska. The problem is
that the ability to select land from the withdrawal areas that meets
Sealaska's traditional, cultural, historic or economic needs is
limited, and certain of those lands now available to Sealaska would
more appropriately remain in public ownership. In fact, the remaining
valuable timber areas within the selection areas are predominantly old
growth and roadless areas with important public interest values.
ANCSA selection limitations preclude Sealaska from using any of its
remaining ANCSA entitlement to select from outside of current
withdrawal areas places of sacred, cultural, traditional, and historic
significance that are critical to facilitating the perpetuation and
preservation of Tlingit, Haida and Tsimshian culture and history. Our
Native Places are not simply ``real estate'' we would like to own.
These are places that are important for the perpetuation of our
cultures and the preservation of our stories and histories and that we
intend to protect, in collaboration with the local tribes, in
perpetuity.
In sum, selection from the withdrawal areas would limit Sealaska's
ability to meet the purposes of ANCSA--to create continued economic
opportunities for the Native people of Southeast Alaska--or to gain
ownership of our Native Places.
LEGISLATIVE SOLUTION PROVIDED BY S. 881
While original withdrawal limitations make it difficult for
Sealaska to meet its traditional, cultural, historic and socioeconomic
needs, these original withdrawn lands are not without significant and
important public interest value. For example, approximately 85 percent
of those lands now designated for withdrawal by Sealaska are classified
by the U.S. Forest Service as designated roadless areas. A significant
portion is Productive Old-Growth forest (some 112,000 acres), with over
half of that being Old Growth Reserves as classified in the Tongass
Land Use Management Plan. This legislation would allow these lands to
remain in public ownership to be managed consistent with the Tongass
Land Use Management Plan.
The legislation would allow Sealaska to:
Select a majority of its remaining entitlement from an
alternative pool of land, which is largely second-growth
forest, and 71 percent of which is already roaded as a result
of previous Forest Service timber development;
Use a portion of its entitlement to gain title to important
sacred, cultural, traditional and historic sites that are
critical to the preservation of Native history and culture, and
to advance Native social and cultural programs. These sacred,
cultural, traditional and historic sites are relatively small
in size, but are invaluable to our people;
Select certain lands for purposes of Native enterprise that
are primarily for activities with limited land use impacts and
would include cultural programs, small-scale tourism/eco-
tourism, and alternative renewable energy development, which
would allow Sealaska to diversify its economic activities in
the region and provide job opportunities for its tribal member
shareholders and other residents of Southeast Alaska. Sites
developed for green energy would help to relieve the villages
of the crushing burden of high-cost diesel generated electrical
power.
This bill does not establish the final entitlement acreage for
Sealaska, leaving the final determination to the iterative process
established under Section 14(h) of ANCSA. However, this Administration
does have the authority to work with Sealaska to settle the final
acreage, and Sealaska is willing to engage in that discussion prior to
final enactment of the legislation.
BENEFITS OF THE LEGISLATION TO OTHERS
The benefits of this legislation extend far beyond Sealaska and its
shareholders. Despite Sealaska's small land base in comparison to all
other Regional Corporations, Sealaska has historically provided
significant economic benefits to not only Sealaska Native shareholders,
but also to the other Native Corporations throughout Alaska. Pursuant
to a revenue sharing provision in ANCSA, Sealaska distributes more than
half of all revenues derived from the development of its timber
resources--more than $315 million between 1971 and 2007--to the other
Native Corporations. By making selections outside of the designated
withdrawal areas, Sealaska will be able to sustain its resource
development operations by acquiring a mix of old growth and mature and
advanced second growth, enabling it to provide continued economic
opportunities for the Native people of Southeast Alaska and economic
benefits to the broader Alaska Native community through revenue
sharing. Sealaska's timber business provides critical support to the
broader Alaska Native community, and for that reason, Sealaska has the
strong support of the Alaska Federation of Natives, the Regional
Corporation CEOs, and the Tlingit and Haida Indian Tribes, among other
important Native entities.
The role of Sealaska in the Southeast Alaska economy is undisputed.
Sealaska's timber operations provide significant positive economic
impact to the region, including continued utilization of the timber
harvesting sector and creation of jobs in some of the poorest rural
Native communities in our region. For that reason, Sealaska has the
support of the Alaska Forest Association and many Native villages in
its efforts to complete its ANCSA land entitlement.
We also see a benefit to the conservation community; in fact,
Sealaska's land legislation strategy was in part driven by national and
local conservation organizations' stated public goals of ``protecting
roadless areas'', ``protecting old growth reserves'' and creating
alternate economies for Southeast Alaska. Instead of taking old growth,
roadless areas in the original withdrawal areas, Sealaska would commit
through this legislation to taking a majority of its remaining
entitlement from areas that are already roaded, encompassing
significant second-growth timber. Moreover, Sealaska would use nearly
9,000 acres of its remaining entitlement to gain title to sacred,
historic, traditional and cultural sites, and Native futures sites, on
which commercial timber harvest or mineral development would be
prohibited. Southeast Alaska tribes and Native Village and Urban
Corporations have passed resolutions in support of this legislation
because they recognize the need to preserve our sacred areas and
culture, and to create local, sustainable, diversified economies. This
legislation gives them the opportunity to join with Sealaska to do
both.
Lastly, movement toward completion of Sealaska's ANCSA land
entitlement conveyances will benefit the federal government. This
legislation allows Sealaska to move forward with its selections, which
will ultimately give the Bureau of Land Management some finality and
closure in the region. Completion of Sealaska's ANCSA conveyances will
also give the U.S. Forest Service some finality with respect to land
ownership and management in the Tongass National Forest because there
will no longer be large portions of the forest encumbered by Sealaska's
land selection rights.
HAA AANI SUSTAINABLE FOREST MANAGEMENT PROGRAM
Sealaska has a responsibility as a Regional Corporation to ensure
the cultural and economic survival of our communities, shareholders and
future generations of shareholders. Sealaska also remains fully
committed to responsible management of the forestlands for their value
as part of the larger forest ecosystem. At the core of Sealaska's land
management ethic is the perpetuation of a sustainable, well-managed
forest to produce timber and to maintain forest ecological functions.
Significant portions of Sealaska's classified forest lands are set
aside for the protection of fish habitat and water quality; entire
watersheds are designated for protection to provide municipal drinking
water; and zones for the protection of bald eagle nesting habitat are
established for every nesting tree.
Sealaska re-plants, thins and prunes native spruce and hemlock
trees on its lands, thereby maintaining a new-growth environment that
better sustains plant and wildlife populations, and better serves the
subsistence needs of our communities. In fact, Sealaska has invested a
great deal of resources in improving its forest sustainability program,
including investing in ongoing silviculture research, and reaching out
to organizations like the Forest Stewardship Council to ensure best
possible management practices. Our harvest to date is a combination of
approximately 60% selective harvest and 40% even aged management. All
of Sealaska's even aged second-growth forest that is ripe for
precommercial thinning is managed accordingly, thereby creating healthy
young forests that provide substantial wildlife habitat for deer and
other animals. Sealaska maintains a silviculture program that rivals
the best of programs implemented by the U.S. Forest Service or private
landowners.
Our sustainable harvesting program will continue into the future
through implementation of good forest management practices and
completion of our Haa Aan! land selections, which will provide Sealaska
with a mix of old growth and more mature second growth timber. Our
harvesting program and investment in good forest management provides
jobs for our shareholders and others in the region, and helps maintain
the ecological value of our forests.
In asking for your support for this legislation, we implicitly
agree to assume a major economic risk by foregoing assured revenue from
the harvesting of old growth timber on original withdrawal lands. We
are also removing nearly 9,000 acres from our timber base by selecting
Cultural sites and Native Futures sites subject to timber harvest
restrictions. Lands available to us under this legislation (upon which
timber harvest would be allowed) are largely second-growth forest
stands, development of which would require Sealaska to enter riskier,
emerging markets. We are, however, committed to investing the time,
money and hard work in progressive management of second growth stands,
to capture alternative economies from forest management and to ensure
that our place in the timber industry remains a sustainable, although
realigned, component of the region's economy.
Finally, Sealaska is committed to using its land base to create
alternative economies, revenues, and jobs through forest management
strategies that include engagement in markets for the purchase of
ecological services. To that end, we are monitoring developments
related to climate change and carbon sequestration and incorporating
this effort into our forest management and strategic plans.
DIVERSIFIED ECONOMIES
The proposed conveyance of sacred and cultural sites and the Native
Futures sites offers new economic, cultural, and educational
opportunities for our region. Our legislation would allow Sealaska to
pursue a more diversified economic strategy and would support new jobs
by empowering Sealaska to preserve and share with others the richness
of Southeast Alaska's natural and cultural history. Both the forest
ecosystem and the people it nourishes define the Tongass, which has
supported the Native people for 10,000 years. By declaring that
Southeast Alaska is both a ``Native'' place--a place that protects and
supports Native communities and cultures--as well as a ``scenic''
place, we protect it and we proclaim its value to the world.
Sealaska is embracing a healthy, alternative paradigm for the
cultural and economic revitalization of our Native and rural
communities by selecting sacred and cultural and Native Futures sites
as part of this legislation. As part of our commitment, Sealaska has
established the following principles for the use and management of
these sites:
Sacred sites. These sites will be selected and managed to
ensure an active Native role in the preservation and
celebration of the rich Native fabric and history of Southeast
Alaska. The sites are purely for sacred, cultural, historic and
anthropologic preservation, research and education. Any site
improvements would be in alignment with the historic and
cultural purpose for which a site was selected.
Native Futures sites. These sites will be selected and
managed to promote recreational tourism activities with minimal
land use impacts. A few of these sites could be developed for
their tidal or small hydroelectric potential, as sources of
much needed alternative energy for the region.
GLACIER BAY NATIONAL PARK
Legislation introduced on Sealaska's behalf during the 110th
Congress proposed the conveyance to Sealaska of a handful of sacred,
cultural, traditional and historic sites in Glacier Bay National Park,
based on precedent for such transfers to Indian Tribes in National
Parks in the lower 48 states. As a result of concerns expressed
regarding these potential conveyances, Sealaska asked the Alaska
Congressional delegation to adjust the legislation to provide merely
for ``cooperative management'' of the sacred and cultural sites located
within Glacier Bay. Cooperative management would ensure Native use and
management of this handful of very significant sacred and cultural
sites within Glacier Bay, regardless of future changes in Park
management. This language does not propose to negate the existing
Memorandum of Understanding between the Park and the Huna Indian
Association. As with all elements of this legislation, Sealaska remains
open to a continued dialogue on this matter to address any remaining
concerns.
TIME IS OF THE ESSENCE
Timing is critical to the success of the legislative proposal
before you today. Without a legislative solution, we are faced with
choosing between two scenarios that ultimately will result in dire
public policy consequences for our region. If S. 881 is stalled during
the 111th Congress, Sealaska will be forced to either terminate all of
its timber operations within approximately two years for lack of timber
availability, resulting in job losses in an area experiencing severe
economic depression, or else Sealaska must select lands that are
currently available to it in existing withdrawal areas. If forced to
select within the existing boxes, development will inevitably occur in
many undisturbed intact watersheds and ``inventoried roadless'' areas
replete with old growth forests. We believe that Sealaska's land
entitlement legislation is more consistent with President Obama's
commitment to preserving more roadless areas, while immediately
stimulating rural economies.
If Sealaska were to terminate all timber operations, this Native
business, which serves as the largest regional private employer in
Southeast Alaska, would be forced to eliminate jobs that are critical
to Alaska's village economy, and this in the middle of the greatest
recession since the Great Depression. This result would be in exactly
the opposite direction that President Obama and the Congress seeks to
move the national economy.
OUR FUTURE IN THE REGION
Our people have lived in the area that is now the Tongass National
Forest since time immemorial. We will continue to live in this region
because it is the heart of our history and culture. The Tongass is rich
and diverse in cultural history, and there continue to be Native people
here trying to live and survive in a subsistence and cash economy. We
agree that areas of the region should be preserved, but we also believe
that our people have a right to reasonably pursue economic opportunity
to survive in the world as it is today. This legislation represents a
sincere and open effort to meet both the interests of Alaska Native
shareholders and the public. Sealaska believes that after full debate
and close scrutiny, its aspirations to meet both its rightful land
selection rights under ANCSA and the public interest in the Tongass
will be recognized as both forward thinking and positive.
Lastly, it is important for all of us who live in the Tongass, as
well as those who cherish the Tongass from afar, to recognize that the
First Peoples of the Tongass--Tlingits, Haidas and Tsimshians--are
committed to maintaining not just the flora, fauna and biological
ecology of the Tongass, but to preserving this place as the land of our
ancestors, with all that means in spirituality, values and beliefs. We
have nowhere else to go and wish for no other place. The Tongass is our
home. We, therefore, look forward to a reasoned, open, and respectful
process as we attempt to finalize our ANCSA land entitlement.
Gunalcheesh. Thank you.
Senator Murkowski. Thank you, Mr. Mallott. I appreciate
your testimony.
Mr. Claus.
STATEMENT OF BOB CLAUS, COMMUNITY ORGANIZER, SOUTHEAST ALASKA
CONSERVATION COUNCIL, ACCOMPANIED BY BUCK LINDEKUGEL,
CONSERVATION DIRECTOR, SOUTHEAST ALASKA CONSERVATION COUNCIL,
JUNEAU, AK
Mr. Claus. Thank you, Senator. I appreciate the chance to
be able to speak in front of the committee. Thank you.
I have a strong personal commitment to the people and the
places of Southeast Alaska. I have served as an Alaska State
trooper for over 15 years in the island and I continue to work
with the people of the island. I've built strong relationships
with many of the 5,000 people who live in the Native villages,
the fishing towns, and the former logging camps who would be
most impacted by Senator bill 881.
This bill is a lands bill, but it's really about all of the
people in Southeast Alaska. In this part of America all of us
depend on the public forest lands for work, play, and food. The
lifestyle of rural Southeast Alaska is incomprehensible to most
Americans. There are no stoplights, McDonalds, or Walmarts.
People build and heat their homes with wood they take from the
forest. They eat berries and deer from the woods and they fish
in the stream and the oceans. Some of my friends have been
living like this for 10,000 years and others for only decades.
This bill would turn the areas around their homes over to
the Sealaska Corporation. As I talked to people on the island
about this bill, I met no one, not one person, who was in favor
of this legislation who is not directly employed or a
contractor of the Sealaska Corporation. I cannot speak strongly
enough to convey the level of emotion expressed in opposition
to this bill.
I spoke to a Sealaska shareholder from Hydaburg who told me
that as island residents he and I shared a common way of life
based on hunting, fishing, and gathering. He said Sealaska
Corporation had devastated his island lifestyle by clearcutting
and that the corporation does not care about us, the people who
still live close to the land.
The costs of this bill outweigh the public benefit and the
people of Prince of Wales recognize that. The small communities
closest to the lands selected in this bill have written formal
letters or resolutions opposing the bill. 98 percent of the
people in Point Baker and Point Protection signed a petition
opposing the bill. A shopkeeper asked me: How can we continue
as a community if Sealaska takes our forest?
SEACC supports Alaska Natives getting the lands rightfully
owed to them. But we question the fairness of the bill. One way
to measure fairness is through the resource value as measured
by timber and existing infrastructure. This is not a value for
value exchange. Over 70 percent of the selection area is cave
and karst land, a wonder of the world. This land, currently
protected by the Federal Caves Resource Protection Act,
contains thousands of caves that remain largely unexplored.
These caves were discovered only in the 1990s by crews of
volunteer adventurers. They found unique sites, which changed
the way that we understand the peopling of the Americas.
Clearcut logging as practiced by Sealaska damages karsts
and caves and State regulations governing private logging offer
no protection. These world treasures should remain federally
protected.
This bill allows Sealaska to cherrypick the best of the
Tongass, to the detriment of all other users. Sealaska has
chosen the most productive, easily accessible timber stands.
SEACC supports the microsale timber program on Prince of Wales
Island and a responsible level of timber harvest to support the
small mills there. This bill threatens the ability of those
programs to continue. The Native future sites represent the
very best sites in all of Southeast Alaska for tourism and
energy-related development. Some are in direct conflict with
existing small businesses and all of them block future
investment by any other party, tribes, village corporations, or
private businesses.
One small cove selected by Sealaska is the site of a fully
permitted floating lodge, family owned and operated for over 30
years. This existing lodge brings millions of dollars into the
local economy and this family business is threatened by this
bill.
SEACC and other conservation organizations, timber
operators, government officials, community members, and the
Sealaska Corporation have been working together toward a
comprehensive solution for the Tongass National Forest that
could finalize Sealaska's entitlements while respecting the
other shareholders in the region. SEACC remains committed to a
bigger, broader solution that addresses the interests of
Sealaska, respects the cultural as well as the economic needs
of all of the people of Southeast Alaska.
We look forward to working with members of the committee,
Sealaska, and all the other stakeholders to promptly achieve a
solution that benefits all of us. Thank you.
[The prepared statement of Mr. Claus follows:]
Prepared Statement of Bob Claus, Community Organizer, Southeast Alaska
Conservation Council, Accompanied by Buck Lindekugel, Conservation
Director, Southeast Alaska Conservation Council, Juneau, AK
Mr. Chairman and members of this Subcommittee:
My name is Bob Claus and I am a community organizer for SEACC based
on Prince of Wales Island. With me today is Buck Lindekugel, our
Conservation Director who can help answer any detailed questions you
may have. Thank you for the opportunity to testify before you today and
I respectfully request that my written testimony and accompanying
materials be entered into the official record for this Subcommittee
hearing.
Founded in 1970, today SEACC is a coalition of fourteen local
citizen volunteer conservation groups in twelve Southeast Alaska
communities, from Craig on Prince of Wales Island to Yakutat. SEACC's
individual members include commercial fishermen, Native Alaskans, small
timber operators and value-added wood manufacturers, tourism and
recreation business owners, 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 use of our region's resources. Southeast Alaska contains
magnificent old-growth forests, outstanding fish and wildlife habitat,
important ``customary and traditional'' or subsistence use areas,
excellent water and air quality, unsurpassed outdoor recreation
opportunities, world class scenery, internationally and nationally
significant cave and karst resources, and provides a unique way of life
for hardy, independent people who choose to call it home.
The Alaska Native Claims Settlement Act (ANCSA) set up a framework
for settling the aboriginal claims to land of Alaska Natives by
establishing village and regional corporations with the right to select
and receive title to 44 million acres of land and receive payment of
nearly one billion dollars. Sealaska is one of 12 regional corporations
formed under ANCSA to receive land and money.
SEACC supports completion of Sealaska Corporation's remaining land
entitlement under ANCSA. We respect the history and traditions of the
Tlingit, Haida, and Tsimshian people who are Sealaska Corporation's
shareholders. It is not necessary, however, for Congress to take any
action for Sealaska to complete its remaining ANCSA land entitlement.
We oppose S.881 as introduced because of the significant changes to
ANCSA and other federal laws it proposes and its impact to the Tongass
National Forest and the communities and residents that depend on it. We
fear that S.881 will not redress any inequities but create new ones
among forest users and communities within Southeast Alaska and with
other regional corporations across Alaska.
Neither can we ignore the significant social, economic, and
ecological impacts caused by intensive and unsustainable logging of
old-growth lands currently owned by village corporations and Sealaska
and surrounding Native villages.\1\ Nothing in S.881 binds Sealaska to
adopt and follow balanced and sustainable logging practices on the
economic development parcels in the future. We have heard eloquent
statements from Sealaska directors and officers of the importance of
the corporation to the regional economy and its desire to provide good
jobs for shareholders. Yet, Sealaska's interest today in investing in
the rural economy seems to nm counter to its practice over the past
twenty-five years of promoting the export of logs, and jobs, from
Native corporate lands in Southeast Alaska.\2\
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\1\ See Bluemink, Sealaska to reduce logging by 25 percent, Juneau
Empire (Nov. 15, 2005). The story reveals that 20 years after it
started its intensive logging program the corporation realized its
``timber resources are much smaller than previously thought,'' and
intended ``to petition federal officials to provide it with more
valuable timber land than it is currently entitled to.'' Attached to
this testimony as Exhibit 1; see also, Exhibit 2 (a photo of Sealaska
Corporation lands on Dalt Island near the Hydaburg).
\2\ See Sealaska's corporate history on the web at http://
www.fimdinitnniverse.corn/companv-histories/SealaskaCorporation.
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In our testimony opposing Congressman Young's initial legislative
proposal on this issue in November 2007, H.R. 3560, we promised to
maintain open communication with Sealaska. When we submitted comments
to Senator Murkowski on 5.3651, the precursor to S.881 that she had
introduced in September 2008, we reaffirmed this commitment.\3\ We have
since worked directly with Sealaska and others to reach a fair
resolution of this matter and to identify a pool of possible lands for
conveyance to the corporation that maintains the integrity of the
Tongass National Forest. While we have made some progress, we have more
hard work in front of us.
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\3\ A copy of these preliminary comments was submitted to Committee
staff for inclusion in the record for this hearing. These comments are
referred to hereinafter as ``SEACC's Preliminary Comments to Senator
Murkowski on S.3651.''
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Changing the way Sealaska's lands entitlements are completed should
be done in a manner that maintains the integrity of the Tongass
National Forest and all it stands for--multiple use and sustained
yield, the commercial, recreational, customary and traditional use of
fish and wildlife, recreation, and tourism. Whether you view this
legislations a controversial reformulation of long-settled ANCSA
settlements or a more benign exchange of lands, a fair and equitable
resolution should also ensure that the ecological integrity of our
nation's largest National Forest remains intact. Any bill relating to
the Tongass National Forest should include durable protections for key
lands for salmon production, wildlife habitat, and community uses. Such
an approach would complete Sealaska's remaining land entitlement,
address the interests of all Americans in securing the long-term
integrity of the entire Tongass, and make Southeast Alaska a model of
sustainable fisheries, natural abundance, and community health in the
21st century.
S.881 DOES NOT ``FINALIZE'' SOUTHEAST ALASKA NATIVE CLAIMS TO THE
TONGASS NATIONAL FOREST BUT STARTS A CHAIN OF FUTURE EXCEPTIONS THAT
MAY UNRAVEL LONG SETTLED ALASKA NATIVE LAND CLAIMS.
S. 881's sponsors entitled this bill the ``Southeast Alaska Native
Land Entitlement Finalization Act.'' While a worthwhile goal, this bill
does not and will not ``finalize'' Native land claims on the Tongass
National Forest.
On April 2, 2009, three weeks before introduction of S.881, Senator
Murkowski introduced S.784, a bill to recognize and settle ``certain
claims'' under ANCSA. See 155 CoNG. REC. 54315 (daily ed. Apr. 2, 2009)
(statement of Senator Murkowski). This bill would allow five (5)
communities in Southeast Alaska that failed to meet one or more of the
criteria set by Congress for a community to qualify for village status
under ANCSA to form ``urban'' corporations. The bill would further
grant each corporation 23,040 acres of land from anywhere in the
Tongass National Forest, including designated Wilderness and Legislated
LUD 11 lands; nearly 180 square miles of public lands.\4\
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\4\ Although S.784 was referred to this Subcommittee, it is not a
subject at today's hearing. We therefore reserve the opportunity to
comment further on this proposed legislation at this time. We provided
the Subcommittee with materials from the Department of Interior and
Department of Agriculture on similar legislation that was introduced in
the House of Representatives in 1997 for the record.
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We recognize that the Native people who are asking for recognition
via S. 784 have long histories and traditions in this region. We are
sensitive to their concerns, but we must vigorously oppose proposals
which attack the Tongass as a result. We have directly expressed our
willingness to work with these groups, if they are recognized, to
develop settlement options that would not sacrifice a sustainable
future for the entire region, and we remain committed to doing so.\5\
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\5\ Our most recent correspondence with representatives from these
communities was in 2005. Although we advised them of our continuing
commitment to further discussions, we did not receive any response from
them. A copy of this correspondence has been provided to the
Subcommittee for the record.
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If these communities become eligible, then Sealaska's remaining
entitlement under Section 14(h) of ANCSA would be reduced by
approximately 25,000 acres. We have previously shared our position on
this issue with Sealaska.\6\
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\6\ See Letter from Anderson, SEACC Executive Director to Harris,
Sealaska Vice-President, Resources (May 22, 2003). A copy of this
correspondence has been provided to the Subcommittee for the record.
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Lastly, in 2004, Congress enacted a law to facilitate completion of
the transfer of lands in Alaska pursuant to ANCSA, the Alaska Statehood
Act, and other laws. See Alaska Lands Transfer Acceleration Act
(ALTAA), Pub. Law 108-452, 118 STAT. 3575 (Dec. 10, 2004). Why was the
issue about whether it was appropriate for Sealaska to select its
remaining entitlement outside of the existing ANCSA withdrawals on the
Tongass National Forest addressed during Congressional deliberations
over ALTAA?\7\
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\7\ Possible conflicts between this legislative effort and the
Alaska Lands Transfer Acceleration Act were noted in our H.R. 3560
testimony and in SEACC's Preliminary Comments to Senator Murkowski on
S. 3651, supra note 3, at 7.
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S.881 CHANGES THE RULES FOR CONVEYANCE OF ANCSA ENTITLEMENT LANDS TO
REGIONAL CORPORATIONS
As of nearly a year ago, the Department of Interior's Bureau of
Land Management (BLM) has conveyed approximately 291,000 acres of
Sealaska Corporation's share of the Section 14(h)(8) allocations, which
is 354,389.33 acres. This leaves a remaining entitlement of
approximately 63,615 acres.\8\ BLM has also conveyed an additional
560,000 acres of subsurface rights to Sealaska. These conveyances have
made Sealaska the largest private landholder in Southeast Alaska.
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\8\ See Letter from Lloyd, BLM's Alaska State Office to USDA Forest
Service, Alaska Regional Office at 2 (Oct. 9, 2008). A copy of this
letter has been provided to the Subcommittee for the record.
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Today, about 3 decades after selecting available lands within the
areas withdrawn by Congress, Sealaska wants to change the rules set by
Congress.
S. 881 DROPS THE LIMITATIONS IMPOSED BY CONGRESS ON WHERE REGIONAL
CORPORATIONS MAY SELECT THEIR LANDS UNDER SECTION 14(H)(8)
Section 14(h) of ANCSA set aside 2 million acres for 5 types of
Native claims; cemetery sites and historical places, Native groups,
``urban'' corporations formed by Native residents of Sitka, Kenai,
Juneau, and Kodiak, for primary places of residence, and for certain
Native allotments.\9\ Any of the 2 million acres not needed for those
specific claims was to be divided among the 12 regional corporations on
the basis of population under Section 14(h)(8) as a land-base for
economic development and benefit to all the regional shareholders.
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\9\ In 1988, six regional corporations, including Sealaska, chose
to relinquish some of the acres previously allocated for cemetery and
historical sites to increase the separate allocation for lands under
Section 14(h)(8). See supra note 3, SEACC's Preliminary Comments to
Senator Murkowski on S. 3651 at 2. Sealaska Corporation Resolution No.
84-87 (June 20-21, 1984) referenced in those comments was submitted to
the Subcommittee for the record.
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S.881 authorizes Sealaska to select its remaining ``economic
development'' land under Section 14(h)(8) from a pool of approximately
79,000 acres located outside the withdrawal areas identified in ANCSA.
Specifically, Section 3 removes the requirement in ANCSA that Sealaska
select its land entitlement from lands withdrawn for, but not selected
by, village corporations in Southeast Alaska under Section 16 of
ANCSA.\10\ In S.881, Sealaska has targeted some of the most productive
forest land remaining on the Tongass National Forest from which to
select these lands. The charts below, infra at p.7, show how Sealaska
has cherry-picked some of the best lands on the Tongass for selection,
under S.881.
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\10\ Section 14(h)(8)(B) of ANCSA, 43 U.S.C. 1613(h)(8)(B); see
also 43 C.F.R. Sec. 2653.9(a)(limiting lands available for Sealaska's
selection to those originally withdrawn by Section 16 of ANCSA but
unconveyed.).
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PARCELS OF LAND IDENTIFIED BY SEALASKA DO NOT FOLLOW THE RULE FOR
REASONABLY COMPACT TRACTS APPLIED TO PREVIOUS REGIONAL CORPORATION LAND
SELECTIONS
While the number of acres identified for selection and conveyance
under S.881 appears small compared to the size of the Tongass National
Forest, the hundreds of parcels of varying sizes identified by Sealaska
for conveyance are spread out across the entire Tongass National
Forest. The lands Sealaska seeks conveyance of are made up of a number
of individual small parcels, as opposed to the larger blocks of
reasonably compact tracts applicable to previous selections by all the
regional corporations under ANCSA. See 43 C.F.R. Sec. 2653.9(a). Many
of the sacred, cultural, and historical sites identified by Sealaska
for conveyance in Section 3(b)(2) of S.881 are located within
designated Wilderness and Legislated LUD II lands.\11\ With very few
exceptions, the proposed Native future sites under Section 3(b)(3) of
S.881 are located adjacent to highly popular areas used by local
community members for recreational, commercial and subsistence
purposes.
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\11\ The former designation was chosen by Congress in the 1990
Tongass Timber Reform Act, Pub.L. 101-626, to assure that lands with
high value fish and wildlife habitat were managed in perpetuity to
retain their wildland character
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S.881 CREATES A NEW CATEGORY OF OUT-OF-THE-BOX WITHDRAWAL SELECTION'S
NOT ENJOYED BY OTHER REGIONAL CORPORATIONS
As noted above, Section 14(h) of ANCSA provided a total of 2
million acres to be selected by the regional corporations from
specified categories. Section 3 of S.881, however, creates new
categories of land selections not available to the other regional
corporations. These include ``Places of Sacred, Cultural, Traditional,
and Historic Significance,'' ``Traditional and Customary Trade and
Migration Routes,'' and ``Native Future Sites,'' identified by Sealaska
on maps it prepared, dated March 9, 2009, and respectively entitled
Attachments B, C, and D to S.881.
Unlike cemetery sites and historical places conveyed to Sealaska
under Section 14(h)(1), no definitions or criteria have been adopted or
proposed for sacred, cultural or traditional sites.\12\ Nor does S.881
define what qualifies as a Trade and Migration Route or Native Future
Site. Will authorizing Sealaska to select from new categories of lands
not available for selection by other regional corporations, increase
pressure for similar treatment by other regional corporations? Will
these new circumstances slow down the prompt resolution of land
selections for all regional corporations?
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\12\ See 43 C.F.R. Sec. 2653.0-5, 2653.5 (2008).
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S. 881 ALLOWS ECONOMIC DEVELOPMENT OF CULTURAL SITES WITHIN GLACIER BAY
NATIONAL PARK
Under ANCSA, Congress did not allow for the selection and
conveyance of culture sites within National Park System units. See
Section 11(a)(1), Pub. L. 92-203, 85 Stat. 696, codified at 43 U.S.C.
Sec. 1610(a)(1). While Section 3(c) of S.881 prohibits conveyance of
any of the 12 sites identified by Sealaska in the Glacier Bay National
Park, it requires the National Park Service to manage all Park
resources cooperatively with Sealaska. This new requirement opens Park
resources to economic development in a manner inconsistent with
maintaining park values.\13\ By giving such rights to Sealaska, S.881
opens the door wide to requests from other Regional Corporations asking
for the same prerogatives in other National Park units in Alaska.
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\13\ See Letter from Lindekugel, SEACC to Elton, Dept. of
Interior's Senior Advisor for Alaska Affairs (August 12, 2009). A copy
of this letter has been provided to the Subcommittee for the record.
---------------------------------------------------------------------------
S. 881 REMOVES EXISTING PROTECTION FOR CULTURAL AND HISTORICAL SITES
AFFORDED UNDER EXISTING LAW
Section 4(g) of S.881 terminates the restrictive covenants
regarding cultural or historical values imposed on lands previously
conveyed to Sealaska by BLIVI. These covenants prevent a regional
corporation from authorizing mining or mineral activity of any type or
``any use which is incompatible with or is in derogation of the values
of the area as a cemetery site or historical place.'' See 43 C.F.R.
Sec. 2653.11(b).
Section 4(e) of S.881 subjects sacred, cultural, and historic sites
conveyed to Sealaska to a covenant prohibiting any commercial harvest
or mineral development. While these restrictions are necessary and
appropriate, they are by their terms narrower than existing covenants
imposed to protect the values of the area as a cemetery site or
historical place. As written, the restrictions may not prevent
development or uses of the land may degrade the values of the areas.
Will treating Sealaska differently, both in the future and
retroactively, result in other regional corporations seeking the same
treatment?
HOW WILL SEALASKA OBTAIN AND MANAGE ACCESS TO SACRED, CULTURAL AND
HISTORICAL SITES IN DESIGNATED WILDERNESS?
Sealaska wishes conveyance of numerous sites it has identified on
lands previously designated by Congress as Wilderness. Given the scale
of the maps prepared by Sealaska identifying these sites, it is
impossible to determine how near these sites are to shoreline, or how
easily the sites can be accessed. Will the means and level of access
sought by Sealaska, as well as the uses permitted under Section 4(f) of
S.881, protect the natural and other values of these lands?
sealaska's out-of-withdrawal selections for economic development lands
DISPROPORTIONATELY TARGET THE MOST ECOLOGICALLY PRODUCTIVE LANDS IN
SOUTHEAST ALASKA
The pool of lands from which Sealaska is seeking for timber
development possess some of the highest biological values represented
by salmon, deer, black bears, big-tree old-growth, and estuaries on the
Tongass National Forest.\14\
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\14\ Schoen, John and Erin Dovichin, eds. 2007. The coastal forests
and mountain ecoregion of southeastern Alaska and the Toneass National
Forest. Audubon Alaska and The Nature Conservancy, 715 L Street,
Anchorage, Alaska. This complete report is available online at:
httpliconserveonline.org/workspaces/akcfm. See also Exhibit 3, a map
comparing Landscape Scale Density of Oldgrowth Forests 1950's--2005 on
the southern portion of the Tongass National Forests with the land pool
proposed for selection by Sealaska in S.881.
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The total number of acres in the pool of lands identified by
Sealaska shrunk from over 95,000 acres initially proposed in 2007 under
H.R. 3560 to just under 79,000 acres in S.881. Despite this reduction
in total acres, the ecological productivity of the lands sought by
Sealaska for intensive clearcut logging is proportionally higher in
2009, with nearly 47,000 (59.2%) of the acres inventoried as big tree
forest. See Exhibit 2* (attached). This is illustrated in the charts
below, created using existing Forest Service data for Prince of Wales
Island.
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* All exhibits have been retained in subcommittee files.
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A substantial majority of the lands target by Sealaska on North
Prince of Wales, Kosciusko, and Tuxekan Islands also contain world-
class karst and cave resources. See Exhibit 4, attached. Karst terrain
occurs on water-soluble bedrock such as limestone, dolomite, or gypsum.
It is characterized by underground water drainage, sinkholes, pits, and
caves. These well-drained soils support some of the most majestic old-
growth forest on the Tongass. As it turns out, approximately 71 % of
the lands identified for conveyance by Sealaska are underlain by karst.
The forest canopy protects the thin soils atop karst from eroding
directly into the soluble rock below. Past and proposed clearcut
logging on these fragile soils disrupt the natural hydrology, harm cave
formations that hold information of thousands of years of climate
change, and alter sediments that hold keys to understanding patterns of
human migration into the Americas as well as paleontological clues to
our past. Eleven (11) years ago, the Forest Service discovered human
remains in On Your Knees cave on North Prince of Wales Island. DNA
testing determined that these human remains were 10,300 years old. The
oldest human remains in Alaska have been found in this cave system, and
it has not yet been fully explored or mapped. See FOREST SERVICE
RETURNS ANCIENT HUMAN REMAINS TO TLINGIT TRIBES, Juneau Empire (Oct.
21, 2007).\15\
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\15\ This story can be found on the web at http://
www.juneauempire.cordstories/102107/loc 20071021021.shtml.
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LANDS IDENTIFIED BY SEALASKA FOR LOGGING DEVELOPMENT WILL HAVE
DEVASTATING IMPACT ON LOCAL COMMUNITIES AND FOREST USERS
One of our proudest national heritages is the freedom that
Americans enjoy to access and use our public lands, anyplace and
anytime. The lands sought by Sealaska will curtail public access and
use of public lands and resources. The uncertain scope of the permitted
activities and location of the easements proposed in S.881 raises
concerns, as does the unfettered authority given Sealaska to control
access and use of the easements and adjacent lands.\16\
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\16\ For additional questions concerning the easements proposed in
Section 4 of S.881, see supra, note 3, SEACC's Preliminary Comments to
Senator Murkowski on S.3651 at 3-5.
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Prince of Wales Island is populated by about 5,000 people, spread
out among 11 communities. Some of these settlements are Native
villages, some fishing towns, and some former logging camps rebuilding
themselves into viable communities. Residents of Prince of Wales Island
are heavily dependent on the Tongass National Forest and its abundant
resources for work, play, and food.
Many residents of these communities closest to the lands threatened
by S.881 question how they can continue their shared way of living
close to the land if Sealaska takes their forest. This feeling of
ownership of our national forests is one of the greatest freedoms
enjoyed by Americans. Many wonder if the existing timber industry will
be able to transition away from old-growth logging if Sealaska receives
the oldest young-growth on the forest.
The small communities of Edna Bay, Naukati, Thorne Bay, Point Baker
and Port Protection have written formal letters or resolutions opposing
this bill, and these are the communities closest to the transfer areas.
Hundreds of island residents have signed petitions opposing the bill.
Residents of the rural communities on Prince of Wales have long
used all the lands proposed for selection by Sealaska on North Prince
of Wales Island and Kosciusko Islands for subsistence hunting, fishing
and gathering. Without the legal requirements for public oversight and
involved participation provided these rural residents under Title VIII
of the Alaska National Interest Lands Conservation Act on public lands,
they will have no voice on how these ``private'' lands are managed by
Sealaska nor will Sealaska be obligated to minimize impacts to
subsistence resources and uses from its management.
The community of Hydaburg has long fought to safeguard lands
surrounding Keete/Nutkwa and Kassa Inlets and Mabel Bay. Sealaska has
targeted these traditional lands for the short-term economic benefits
associated with clearcut logging and round log export to Asian markets.
Former Senator Tim Wirth's 1989 Tongass Timber Reform Act, S.346,
prohibited logging on these lands, but they were ultimately left
unprotected in the final compromise legislation in1990.\17\ Hydaburg
and SEACC have consistently advocated for long-term protection for
these lands ever since.
---------------------------------------------------------------------------
\17\ See S. Rep. No. 101-30, Pt.1, at 3 (1989)(text of S.346); see
also 136 Cong. Rec. S7740--S7744 (daily ed. June 12, 1990)(statement of
Senator Tim Wirth in support of ``the Johnston compromise'' between
S.346 and H.R.987, the House-passed Tongass Timber Reform Act of 1989).
---------------------------------------------------------------------------
IS THE EXCHANGE OF 327,000 ACRES OF LAND AVAILABLE FOR CONVEYANCE TO
SEALASKA FOR ABOUT 60,000 ACRES OF PUBLIC LANDS A FAIR DEAL?
As noted above, some characterize S.881 as a simple exchange of
lands. ANCSA allows for such exchanges but with an important caveat;
exchanges ``shall be on the basis of equal value . . . '' 43 U.S.C.
Sec. 1621(h). Under Section 4(b) of S.881, Sealaska will relinquish
all the lands remaining available for selection and conveyance within
the Congressional withdrawal areas upon completion of the conveyances
under the bill. In terms of mere numbers, the 327,000 acres that will
be returned to Forest Service management far exceeds the amount of land
Sealaska will receive under S.881. In terms of value, however, the
relinquished lands do not hold a candle to the lands Sealaska will
receive.
The accounting provided by S.881 does not consider the value of the
public-financed infrastructure on the lands Sealaska seeks. These
parcels contain approximately 200 miles of roads. These roads provide
vital all-weather access for subsistence activities, as well as basic
services like emergency healthcare and law enforcement.
Thank you for the opportunity to provide these preliminary comments
on this proposed legislation.
Senator Murkowski. Thank you, Mr. Claus.
They have called the roll, but I think I've got some time.
So I'm going to start with some questions, and then we'll have
to take a short break.
Mr. Mallott, I would like you to address the issue of the
Tongass Futures Roundtables. You indicated as you began your
testimony here today that you are a participant and have been
since the outset. Mr. Jensen's comments are that the
administration is clearly looking to what is taking place or
the dialog that is in process and perhaps this proposal that
was placed out there this past week.
How do you see Sealaska's entitlement legislation, the bill
before us, fitting in with the Tongass Futures roundtable
consensus-building process? How does this fit together?
Mr. Mallott. After 3 years of effort, at its last meeting
just in the last week the Tongass Futures roundtable had
presented to it by a working committee the conceptual draft of
what is called the grand solution. The Tongass has had several
grand solutions, as you know, in its history. I can't comment
on the details, but among its provisions would be a transfer of
land by some mechanism to the State of Alaska. There would be
the addition of significant wilderness. There would be at least
one or more new classifications of land within the Tongass.
I think that any thinking person would recognize that this
is a multi-year process, that if it were to be approved by the
Tongass Futures roundtable at its next meeting, which it surely
would not, that it would take probably 5 or 6 years for us to
get to a point where some or all of it were to be made into
law, because almost all of it would require action by this
Congress.
The Sealaska Land Selections Act, as you pointed out, is
ready now. We have had some 150 meetings with communities,
institutions, significantly affected individuals within the
Tongass. For example, contrary to a comment just made which
would leave a different implication, the principle
organizations in the community of Hydaburg have acted to
support this legislation.
We have made clear in the Tongass process that we very much
desire and will act as aggressively as possible to make sure
that our bill, which is significantly different from what the
Tongass is trying to achieve in that it is a settlement of our
land claims and that it is based upon prior existing
obligations--in spite of that, Sealaska has continued to work
very extensively with every interest, both at the table and in
the communities of Southeast, and will continue to do so.
Senator Murkowski. The question some have asked me is,
well, if Sealaska has waited for 38 years to get their final
conveyance and if in fact there is this process under way
through the Tongass Futures Roundtable, what is another few
years of waiting? Can you describe for the record what the
economic situation is in the region and address why it doesn't
make sense to wait multiple years for resolution of this issue?
Mr. Mallott. A significant reality that Sealaska faces and
the overall timber industry within the Tongass has faced is
that the available marketable timber to us and to the industry
is fast declining, that the overall timber industry in
Southeast is already only a shadow of its former self and at a
point where, if it is to be sustained, additional harvestable,
marketable timber needs to be made available to the overall
industry. Sealaska is impacted by that.
Senator Murkowski. Is it not also accurate that it's not
just Sealaska, but through the 7 [i] distributions other Alaska
Native corporations throughout the State would also be impacted
through that loss of revenue source?
Mr. Mallott. Yes, Senator. I was going to end by saying
that Sealaska itself in about 2 years would have to begin
winding down its timber operations. That would end, amongst
other things, the 7 [I] payments which have been made to the 12
other corporations under that section of ANCSA, which obligates
us to share 70 percent of the revenues from the development of
ANCSA resources.
Sealaska since its inception of harvest on ANCSA lands has
distributed some $300 million to the other regional
corporations and its loss would be a significant matter both to
our survival and to theirs long-term.
Senator Murkowski. I appreciate you saying that.
I do need to excuse myself, so we will take a brief at-
ease. Hopefully we'll be back in 5 minutes.
[Recess from 4:14 p.m. to 4:33 p.m.]
Senator Murkowski. We seem to be losing some of our crowd,
but not the interest. I appreciate your indulgence as we
accommodated the vote. The good news for me is that we are
finished voting, so I can stay with you for the rest of the
afternoon.
Mr. Mallott, I have a whole series of questions, but I
don't want Mr. Claus to feel like I'm not giving equal time.
Before we broke I asked about the economic impact and why
it doesn't make sense to delay beyond the 38 years that
Sealaska has already gone through. Mr. Claus, you have
indicated that you live there as part of the island community,
have a great understanding of the region and the local
economies. If we're unable to pass the legislation with
Sealaska and to do so in a timely manner, Mr. Mallott has
indicated what the economic impact to Sealaska would be. But I
think we also appreciate that to the Southeast economy, the
timber aspect is something that is of great import.
Can you tell me if in fact we aren't able to resolve this,
if in fact Sealaska sees the decline, as Mr. Mallott has
suggested, what then becomes of an already shrinking and
struggling southeastern economy?
Mr. Claus. First off, Senator, I very much appreciate your
sense of urgency and understand that this is an important issue
and that it does have to be addressed in a timely fashion.
SEACC and the other people that we know are willing and able to
talk about these issues in virtually any venue, whether that's
the roundtable or in discussions with Sealaska itself or other
small groups that are working on this issue. We also feel that
this is an urgent issue.
As far as the economy goes, Mr. Mallott was eloquent in his
description of the move toward a second growth industry . This
will take time as far as retooling. There's other legislation
pending for those kind of activities. I think all the
stakeholders need to be represented to address both that
economic move toward a second growth industry and to address
Sealaska's entitlements.
Senator Murkowski. I recognize your point, but I think we
also understand that moving to this second growth transition,
the proposal that Sealaska has advanced is one that, lays out
how they accomplish that transition there.
Let me ask, Mr. Mallott, because it's been suggested by Mr.
Claus and certainly the administration witnesses that everyone
is willing to sit down and have further negotiations. In my
opening comments, I suggested that there might be some movement
or some removal of the bill as it relates to Glacier Bay
National Park. How willing is Sealaska to sit down, not only
with our staff, but with others, to work out whatever
modifications may be needed to settle some of the remaining
concerns?
Mr. Mallott. Speaking as a board member and having worked
closely with our management during this entire process, I
believe Sealaska has already demonstrated that it is willing to
be responsive to both the folks who live in the forests, our
shareholders, who also have raised issues with portions of this
bill, with environmental organizations. We've briefed the
Tongass Futures roundtable twice on the legislation, as I've
mentioned, have had some 150 meetings throughout the course of
the past several years.
This bill is a very different bill than it was when it was
introduced in the last Congress, and Sealaska is committed to
continuing to work with all the parties to try to expeditiously
as possible resolve issues with the bill so that ultimately it
can be expeditiously resolved also by Congress.
Senator Murkowski. I have heard nothing but statements of
goodwill about working towards final resolution and it is
certainly my intention to push us all in that direction so that
we do have a final, expeditious result and it is one that has a
level of equity to the shareholders and does take into account
a struggling economy.
I wanted you to respond, Mr. Mallott, to the issue that was
raised by both of the administration witnesses that somehow
this sets a precedent. I told them that this was in fact a
unique circumstance here with Sealaska. But can you elaborate
further? Are there any differences between the Sealaska
circumstances and those of other ANCSA corporations? Do we need
to be fearful that all the others are going to be coming back
and saying that in fact they should be able to seek further
redress?
Mr. Mallott. Senator Murkowski, the legislation has been
briefed with the regional corporation CEOs group, which meets
on a regular basis to discuss a full range of ANCSA issues,
including, and they're hugely sensitive to this, issues that
might create precedent.
We also know that ANCSA is very much a living document. It
has been amended many, many times. In those meetings that I
just mentioned, there has been no inkling of opposition. Every
Native corporation or Native institution that we have asked for
the opportunity to both explain and then to seek their support
for this bill, that support has been provided.
In the Act itself, Sealaska selections come from a
different and almost technical administrative section of the
Act, which is completely separate from those sections of the
Act from which all other ANCSA corporations make their
selections.
I have heard absolutely nothing from within the Native
community and those interests who might otherwise raise these
issues of possible precedent other than what I heard today by
the government witnesses.
Senator Murkowski. Let me ask about another suggestion that
came up during the commentary. This undercurrent that if
Sealaska gets to pick timber lands from this proposed selection
pool that somehow you're able to cherrypick, and that it
somehow negative for the rest of those who are in the timber
industry in Southeast. Can you speak to that as an issue? Is
this something that the timber industry are opposing in
Sealaska's proposal?
Mr. Mallott. The principal organizations that represent the
timber industry in Southeastern Alaska support this legislation
and I believe they are formally on record as doing so.
The notion of cherrypicking is one that surprises me. Quite
frankly, Senator, it is Tongass Futures roundtable and the
discussions that took place there that led us to take the
actions at the board level which set internal policy for
Sealaska to seek this legislation. The notion that the industry
itself should move to building a long-term sustainable industry
built around no more old growth, but the harvest of second and
renewable growth timber, the areas that Sealaska as a
consequence has included in our bill are lands that have
already been harvested or almost all of which has been
previously harvested by the United States Forest Service.
The issues of karsts and some other environmental issues
are there and we would have to deal with those and are willing
again to work with agencies and with other institutions in
order to make the right decisions. In our legislation, for
example, both in partial response to this question and to one
you asked just prior, this bill contains very significant
public access provisions, which was quite frankly hard for the
board to make when we look at these as Native homelands. But in
recognition of the issues that were raised, public access is
included around and within these selection areas where local
communities and individuals have indicated their importance.
Sealaska also felt that it was incredibly important and
necessary to move out of our existing withdrawal areas in order
to protect sacred sites. If we stay within our withdrawal areas
only and finalize our entitlements through existing
administrative processes, as you've indicated, that will take
some time, even in spite of the legislation that was passed
several years ago to accelerate the process. But more than
anything else, it would place in jeopardy in our judgment
collectively as a board many, many sites that are sacred to our
people and that we believe at this time and place are
appropriate to be made available for selection, because the
Tongass today is a very different place than it was 40 years
ago, at a time then that we thought that the Federal protection
would be sufficient; that the growing impact and utilization
and recreation and tourism and other uses of the forest have
made clear to us that somehow we need to have a significant
voice and hopefully ownership of those sites which are most
important to us, and we cannot do that if we stay within our
withdrawal areas.
Senator Murkowski. Let me ask you that, Mr. Claus, because
it appears that SEACC is taking a position in opposition of
these Native sacred sites. Is that correct?
Mr. Claus. We believe that there's a conflict. From just
talking to tribal members of the four tribes on Prince of Wales
Island--and I in no way can speak for the tribes or don't
intend to--but I think there is an issue to be resolved between
the tribes and the ANCSA corporations as to who should have
control over those issues or those particular sites.
The objection that some have to the cultural sites is
development of them and the removal of the covenants, as the
administration witnesses testified to earlier.
Senator Murkowski. Let me ask the question about the
environmental impacts, because I believe it was Ms. Burke, and
also Mr. Jensen, but I believe that Ms. Burke spoke to the fact
that Sealaska, they can always select from the remaining acres
of the original selection pool. Her comment was there was
essentially sufficient land to select from.
My point, and Senator Begich made it as well, within that
area there's a significant percentage that may be under water.
There's a significant percentage that is located in municipal
watersheds and that are in areas where there is productive old
growth.
The fact is that you could select in those areas, but
wouldn't there be greater environmental impact, to wildlife,
within those areas? Why not encourage a better pool of economic
lands to select from? That's where Sealaska has gone with this.
By saying we're not going to allow for an expansion, you must
select from within, you are essentially going counter to the
initiative certainly of SEACC, which is enhanced protection of
the environment.
Let me ask Mr. Claus to answer and then I'll let you jump
in, Byron.
Mr. Claus. Thank you. As far as the specific environmental
impact to areas inside the box, for lack of a better term, I
would have to get back to you or back to the committee on those
in specific. In general, I'm not sure that's a fair question,
either inside the box or outside the box.
We've been working with, for the past 6 months or so, in
direct negotiations with the Sealaska Corporation about moving
these areas, potential areas, around so they have less impact
on the other communities of Prince of Wales Island and talking
very specifically about where those areas ought to be. Many of
those are outside of the existing ANCSA areas.
So yes, we have been working on thinking about moving to
places that will minimize impacts to communities and maximize
environmental protections for old growth in sensitive areas.
Senator Murkowski. Mr. Mallott, if you can speak to that,
because from all that we can discern with the expansion of the
selection pool what is happening is a greater facilitation of
lands that have already been harvested. So we're talking about
second growth. We are not in fact going after some of the more
environmentally sensitive areas with this expanded selection.
In fact, it is probably more environmentally balanced than
if you were to select within the box. Is that correct?
Mr. Mallott. Yes, it is. If the board had not begun the
discussion of a powerful desire to protect sacred sites, the
discussion of moving outside existing withdrawal areas might
not have resulted. That would likely not have taken place also
if not for the Tongass Futures roundtable process, where long-
term harvest of already roaded and accessed and harvested areas
by the Forest Service might be made available to be responsive
to the Tongass Futures' almost consensus aspiration that that
be the future of the timber industry.
In our withdrawal areas are some of the last remaining
significantly unroaded and old growth watersheds in the
Tongass. In the Tongass land use management plan--my numbers
may be off, but some 60,000 acres of our withdrawn old growth
able to be selected by Sealaska is identified as important to
the overall balance of timber stand futures in the Tongass.
We thought, quite frankly, Senator, we were doing everybody
a favor. We could have stayed within our boxes and had
significant old growth harvest, for which we have the ability,
as you know, in law to market. We are not prohibited from doing
that. We could sustain on an ongoing basis without having to
diminish our current harvest levels to any consequence. We
could work with the Forest Service to use that old growth
availability to help create a sustainable timber industry for a
longer term future.
But we also agree as Native peoples who are stewards of our
lands and of future lands that it makes sense to avoid
continuing clearcut harvesting of old growth timber. But there
needs to be an alternative both for the existing non-Native
timber industry as well as for our industry. We believe that
what we have identified and include in our bill is both
responsible to the environment and it is responsive to the
needs of the long-term timber industry.
It is, quite frankly, both the choice and the gamble that
Sealaska is willing to take. We will have to diminish our
timber harvest very significantly even to sustain it and then
ramp up at a period longer in the future than would otherwise
be the case if we selected within the withdrawal areas.
Also, within the withdrawal areas are a number of community
intact watersheds which Sealaska would not select in any case,
which would impact negatively our ability to create the kinds
of blocks and rational selections that would allow us to
sustain any kind of timber industry into the future. We could
select those watersheds and plan to harvest them, but that
would just create another Tongass crisis.
Senator Murkowski. I appreciate the explanation because I
think it goes to the heart of what we're doing here today.
Sealaska within the ANCSA provisions, within the law, has the
ability to be more aggressive from an economic development
perspective. But I think out of respect for the land and out of
respect for finding that balance, this is why you are looking
outside of the withdrawal areas to provide for a level of
protection, as stewards.
That's the last question that I want to ask you, Mr.
Mallott, and that is the issue of stewardship. There has been a
little bit of undercurrent that perhaps in the past Sealaska
has not been the best managers in previously selected lands. I
would just ask you for the record to tell us about Sealaska's
commitment to sustainable forest stewardship. You have given us
a little information, but if you could just describe further
and how you'll work to ensure that the Native subsistence needs
are also met through that.
Mr. Mallott. Thank you for a meaningful opportunity,
because Sealaska and other Native corporations who have engaged
in timber harvests over the years in the Tongass have had to
deal with those accusations. When we began harvests some 25 and
more years ago now, there were no meaningful standards either
for the Forest Service or for ourselves for the kind of timber
harvests that would be required into the longer term future.
That is, forest management practices that were more nuanced
than that necessary for large-scale harvest of pulpwood, for
example, which was the reality at the time with the two long-
term contracts.
It was Sealaska as much as any other institution or person
who advanced the idea of developing forest harvest practice
standards that the legislature of Alaska could adopt, which
would help guide our harvest practices. Sealaska has, at least
for the past 20 years and very significantly in the past 15
years, engaged in very considerable silvaculture on those lands
that we've harvested, not just in thinning and pruning and
other kinds of practices, but even in planting new trees in
order to expedite and to ensure growth on steep slopes or
steeper slopes than would otherwise allow for reasonable growth
in our areas.
Sealaska has spent literally millions on silvaculture, has
contracts with leading forestry experts at universities, for
example Oregon State, which has one of the best forestry
programs in the country. The board and management are
absolutely committed to the idea and practice it on the ground
of being very, very responsible stewards.
Senator Murkowski. I appreciate the comments from both of
you. I will conclude by asking either of you if there's
anything that you would like to add that I haven't addressed,
or if you feel there needs to be a rebuttal, Mr. Claus. I
haven't peppered you with as many questions, but I will give
both of you an opportunity to provide some final comments if
you would like. Mr. Claus?
Mr. Claus. Thank you. The concerns that I hear from the
people who are living on Prince of Wales Island is primarily
about past practice and what they see out their front windows,
what they see when they go boating, what they see when they
drive the roads is shocking and disturbing to people.
I can take Mr. Mallott at his word. I can take the Sealaska
Corporation at their policy today that they intend to do better
in the future with these lands that would be transferred. But
that's not in this legislation. They can change that. They
could have another board meeting in another 5 years and change
that again.
If there were a way to make this part of the legislation,
then maybe we should be discussing how that goes on. Right now
we have their assertion, which I believe that they will follow
through on, and I certainly appreciate that their practices
will change. But the concerns in the community is about what
they see every day, about how Sealaska operates. These are
ongoing timber operations. They're not necessarily all
historical.
Senator Murkowski.
The Chairman. Are you suggesting, Mr. Claus, that Sealaska
has been engaging in any violations of either Federal or State
laws or regulations?
Mr. Claus. No, Ma'am.
Senator Murkowski. Mr. Mallott, did you care to follow up?
Mr. Mallott. Yes. I think it's important to note that,
particularly on Prince of Wales Island, which is really the
significant portion of the Tongass Forest that we are speaking
of, that much of Sealaska's harvest areas are not visible from
most view planes; that those harvests near communities are
either United States Forest Service or some other entity.
That's not to say that Sealaska did not engage in
clearcutting. In order to be profitable and to really in many
instances practice the best silvaculture in the Tongass
National Forest, clearcutting has been an important
methodology. But at the levels and on old growth that have been
the practice in the past, we fully agree that we are moving
away from that paradigm. That is one of the principal reasons
for this legislation.
I would just like to say, Senator Murkowski, that we very
much appreciate your leadership and your interest in this
legislation.
Finally, I was handed to me this afternoon a number of
additional letters and documents* in support of this
legislation. I'd like to be able to submit them for the record
also.
---------------------------------------------------------------------------
* Additional letters and documents can be found in Appendix II.
---------------------------------------------------------------------------
Senator Murkowski. We will include them as part of the
record.
I thank both of you. I wish that the chairman and the
ranking member of this subcommittee had been able to hear your
testimony and the responses to the questions. I think it was
extremely helpful in just laying out why we are here. I think
it was very helpful in hearing the comments that there is a
genuine effort on the parts of all the stakeholders that in
fact we finally, after close to 4 decades, resolve this issue
of land conveyance for the Sealaska shareholders.
So I will be working with Senator Wyden, Senator Barrasso,
and Senator Bingaman to ensure that we are able to reach a
resolution. I would encourage those of you with Sealaska, I
know that there's been a great deal of reach-out and I
appreciate that. When we first had discussions about this, we
said you're going to have to do a lot more communication in the
smaller communities. It's important that we continue with a
high level of dialog even as we move through this process.
But I thank you for taking the time to travel long
distances to be here, all of you, because I noted there are
those behind you that are not local residents as well, and I
appreciate your input, and we will be working with you.
With that, we stand adjourned.
[Whereupon, at 5:06 p.m., the hearing was adjourned.]
APPENDIXES
----------
Appendix I
Responses to Additional Questions
----------
Responses of Byron Mallott to Questions From Senator Bingaman
Question 1. Does Sealaska have a duty as a corporation to generate
a profit from the lands it would receive under ANCSA or this bill?
Please explain.
Answer. Sealaska Corporation was created as authorized by Congress
under ANCSA, and ANCSA's Declaration of Policy at Section 2(b) of the
Act stated that ``the settlement should be accomplished rapidly, with
certainty, in conformity with the real economic and social needs of
Natives . . . ''. Further, in Section 7(d) of ANCSA, Congress declared
that incorporators for each of the specified geographic regions,
``shall incorporate under the laws of Alaska a Regional Corporation to
conduct business for profit, which shall be eligible for the benefits
of this Act so long as it is organized and functions in accordance with
this Act.'' This language and the corporate structure specified in
ANCSA have been interpreted to require economic development and
initiative for the purposes of earning a profit for the benefit of the
Native shareholders and the regions in which they live.
Sealaska is organized under the laws of the State of Alaska as a
for-profit corporation and does, in fact, pursue opportunities to
develop natural resources on many of the lands it owns. The development
of natural resources was contemplated in ANCSA, as evidenced by Section
7(i) of ANCSA (requiring the sharing of revenues from natural resource
development). Moreover, one of the areas in which the Joint Federal-
State Land Use Planning Commission for Alaska, as established in
Section 17 of ANCSA, was directed to make recommendations was in the
area of ``economic growth and development'' to ensure compatibility
with other land management interests. See Section 17(a)(7) of ANCSA.
Sealaska profits are distributed to tribal member shareholders and
many shareholders also benefit from Sealaska's economic development
activities through jobs, subcontracting opportunities and scholarships.
Sealaska, and many other regional corporations, have also moved beyond
the congressional mandate by establishing a non-profit arm to pursue
social and cultural missions. The Sealaska Heritage Institute is funded
from the profitable activities of Sealaska Corporation, and its mission
is to save and revive our Native languages, arts, and to further
educational initiatives. Sealaska supports the Native community in many
ways, providing scholarships to our Native youth and delivering
firewood to our elders. While we are a for-profit entity, as Congress
mandated, to simply characterize Sealaska, or any other Alaska Native
Corporation, as just another for-profit corporation, as some have,
constitutes a near dismissal of one of the support systems created by
Congress for Alaska's Native community.
Some of the lands received by Sealaska under S. 881 would be
developed for their timber potential. The timber would be sold in U.S.
and international markets, creating profits that would ultimately
benefit our Native community, and through the provisions of 7(i) and
7(j) of ANCSA, 100,000 Alaska Natives throughout our state. Many from
our communities consider this legislation to be the most important and
immediate ``economic stimulus package'' that Congress can implement for
Southeast Alaska. Sealaska and its subsidiaries and affiliates expended
over $45 million in 2008 in Southeast Alaska. Revenues from timber
harvest are reinvested in our forests through our silviculture program
so area forests will be sustainable for not only timber, but for
wildlife, subsistence and other non-timber forest dependant resources.
Over 350 businesses and organizations in 16 Southeast communities
benefited from spending resulting from Sealaska activities. We provided
over 363 full and part-time jobs with a payroll of over $15 million.
Including direct and indirect employment and payroll, Sealaska created
490 jobs and $21 million in payroll.
We are proud of our collaborative efforts to build and support
sustainable and viable communities and cultures in our region. We face
continuing economic challenges with commercial electricity rates
reaching $0.61/kwh and heating fuel costs sometimes ranging above $6.00
per gallon. To help offset these extraordinary costs, we work with our
logging contractors and seven of our local communities to operate a
community firewood program for the benefit of all community members,
and special efforts are made to deliver split wood for the needy. We
are also the primary contributor of cedar logs for the carving of
totems and are now working with the communities to provide cedar
carving planks to schools and tribal organizations. We are
collaborating with our village corporations and villages to develop
hydroelectric projects.
Question 2. Section 22(f) of ANCSA authorizes the Secretary [of the
Interior] and the Secretary of Agriculture to enter into exchanges with
the Alaska Native Corporations ``for the purpose of effecting land
consolidations or to facilitate the management or development of the
land, or for other public purposes.'' Has Sealaska considered
finalizing its selections and then using this exchange [authority]
under ANCSA to address some of the concerns raised in your testimony?
Answer. The committee references 22(f) of ANCSA; however, there are
two provisions authorizing land exchanges--section 22(f) of ANCSA and
section 1302(h) of ANILCA. Both have nearly identical language and
allow for exchange of Native lands, interests therein or Native
selection rights. An abbreviated description of the language follows:
The Secretary, the Secretary of Defense, the Secretary of
Agriculture, and the State of Alaska are authorized to exchange
lands or interests therein, including Native selection rights .
. . for the purpose of effecting land consolidations or to
facilitate the management or development of the land, or for
other public purposes. Exchanges shall be on the basis of equal
value, and either party to the exchange may pay or accept cash
in order to equalize the value of the property exchanged:
Provided, that when the parties agree to an exchange and the
appropriate Secretary determines it is in the public interest,
such exchanges may be made for other than equal value.
The Southeast Alaska Native Land Entitlement Finalization Act, S.
881, does not propose a land exchange. The legislation proposes only to
designate an alternative pool of land from which Sealaska would select
its remaining entitlement under ANCSA. The Sealaska bill conforms to
the directive of ANCSA to provide an equitable entitlement to Alaska
Native people. For the reasons set forth below, a fair, equitable and
timely solution is not likely to be reached by forcing Sealaska to
complete its ANCSA selections inside the existing withdrawals and then
engage in an administrative exchange.
In fact, for many years Sealaska did pursue options to complete an
administrative exchange of lands that the Native Corporation had
already received pursuant to ANCSA, including lands deemed by many to
have significant national interest values, and concluded that a fair
and adequate exchange of current land holdings could not be achieved.
Sealaska does not wish to take title, under the current provisions of
ANCSA, to additional ANCSA lands that have significant public interest
and environmental value on the chance that it might complete a fair and
equitable solution through the administrative process.
Moreover, even when Sealaska pursued an administrative land
exchange with the Forest Service, Sealaska still expected that any
exchange would necessitate the concurrence of the Congress, both to
ensure continuing congressional oversight over the implementation of
ANCSA and to avoid litigation that has historically frustrated
administrative exchange efforts.
Our efforts to implement an administrative exchange (with
expectation of ultimately pursuing congressional ratification) began in
1998. For various reasons, Sealaska's efforts to pursue an
administrative land exchange failed, largely for the following reasons:
1) Differences in the national policy priorities among
federal agencies and between national, regional and local level
offices;
2) Differences in policy objectives between Sealaska and the
Forest Services--for example, Sealaska hoped to exchange
municipal watersheds back to the Forest Service to be
protected. Under the Federal Land Management and Policy Act of
1976, the Forest Service is charged with ensuring the provision
of water from national forests to meet municipal water needs.
Under the Tongass Land Management Plan (TLMP), however, the
Forest Service included a provision establishing that exchanges
to acquire municipal watersheds are inconsistent with the TLMP;
3) The continuous revolving door of Forest supervisors and
staff who made supportive statements about reaching a fair and
equitable settlement through a proposed land exchange, but were
unable to pursue resolution during their time at the agency;
4) Concerns about the litigation related to land exchanges,
including a lawsuit against a forest supervisor (in the
southwest) for an administrative land exchange;
5) The USDA prerequisite that any exchange must follow the
Uniform Appraisal Standards for Federal Land Acquisitions
(Yellow Book) procedures for appraisal of withdrawn and
selected lands. The Yellow Book process is so difficult that,
to our knowledge, no exchanges of the order of magnitude of
what we are trying to accomplish has occurred under the Yellow
Book rules; and
6) Many of the lands that Sealaska currently owns (or could
own), and has expressed a willingness to exchange, have
exceptional ``public interest values''--such as fishery and
spawning habitat, municipal watersheds, and old growth roadless
areas--but these values are not considered under the existing
land exchange appraisal process.
The administrative process for completing exchanges for even
smaller land exchanges can require several years and formidable
transactional costs. For land adjustments of the scale needed to
properly fulfill Sealaska's ANCSA entitlement, the time and costs
required are prohibitive.
Nearly all sizable land exchanges that have been successfully
completed between federal agencies and Alaska Native Corporations have
been completed through the legislative process. There is nothing unique
or precedent-setting about adjustments of provisions regarding
Sealaska's land entitlement to fulfill ANCSA purposes. There have been
at least 25 ANCSA land adjustments for several Native corporations, all
of which were completed through the legislative, not administrative,
process, including:
Klukwan Village Corporation, Pub. L. 94-456, 90 Stat. 1934
(1976).
Cook Inlet Region, Inc., Pub. L. 95-178, 91 Stat. 1369
(1977).
Shee Atika, Inc., Goldbelt, Inc. and Kootznoowoo, Inc.
(Admiralty Island), among several other Corporations, Pub. L.
96-487, 94 Stat. 2409 (1980).
Haida Village Corporation, Pub. L. 99-669 (1986), as amended
by Pub. L. 101-626 (1990) and Pub. L. 102-415 (1992).
Sealaska Split Estate Exchange, Pub. L. 102-415 (1992).
Kake Tribal Corporation, Pub. L. 106-283.
A legislative solution will save millions of dollars that would be
expended in an attempt to complete the proposed adjustments
administratively. The Forest Service administrative land exchange
process incorporates approximately 70 steps, including a feasibility
analysis; a NEPA process; land appraisals according to Yellow Book
standards; and many other cumbersome procedures. The appraisal process
required for an administrative land exchange is particularly cost-
prohibitive and unreliable for Southeast Alaska lands:
Alaska land sales available for use in comparative sales are
restricted to size and quality.
Market data is limited or non-existent
There are a limited number of sales in Alaska
Supply limitation of available land in market place
prohibits evaluation of demand.
Cost of timber and mineral appraisals for large tracts is
prohibitive and time sensitive.
Just the feasibility report, required to initiate the
administrative exchange process, includes the following elements:
1. Discussion of the exchange proposal
2. Forest Plan Compliance Review/Public Benefits Summary
3. Title Evidence
4. Boundary Management Review
5. Federal Land Status Report
6. Water Rights Analysis
7. Valuation Discussion
8. Identification of Issues and Public Support
The administrative exchange process is sufficiently cumbersome
and--as a practical matter--dysfunctional that we are not aware of more
than a few large land exchanges being completed in the western U.S. in
recent years without legislation to ratify or implement them. Those
exchanges that have been legislated have received ample, adequate
review and stakeholder participation through the legislative process to
be successful. Such exchanges are implemented without the impracticable
delays and costs associated with the administrative process and any
subsequent administrative appeals and litigation that are often
generated by small groups of activists even for smaller exchanges,
despite majority consensus that the exchange is in the public interest.
The agencies are not adequately staffed to properly process exchanges
in a timely and adequate manner, in Alaska or elsewhere.
Thirty years ago Congress stated that,
. . . It is imperative that the Natives receive their land
as quickly as possible. Time is of the essence. Preparation of
an environmental impact statement under the NEPA is unnecessary
and not warranted where implementation of the ANCSA of this
Title is involved.
S. Rep. No. 96-413, 96th Cong., 1st Sess. (November 14, 1979) at
292. Despite this command, the administrative regulations encumber the
administrative land exchange process with a plethora of lengthy, costly
NEPA and other bureaucratic requirements that hinder any sizable land
exchange effort and result in a prohibitively prolonged and expensive
process, with small likelihood for success.
Responses of Byron Mallott to Questions From Senator Barrasso
Question 1. There has been some suggestion in the testimony that
the selection of additional sacred and cultural and Native Futures
sites by Sealaska Corp. could increase the cost of Forest Service land
management in the Tongass by fracturing land management patterns. How
would Sealaska address this issue to prevent that from happening?
Answer. Your question requires a brief explanation of the dilemma
that forced Sealaska to seek this legislation--without legislation,
Sealaska would be forced either to select timber lands from within the
original ANCSA withdrawal areas, causing significant environmental and
community impacts, or, shut down all timber operations and negatively
impact rural communities and the economy of Southeast Alaska.
Sealaska has an unfettered right to select its remaining
approximately 75,000 acres of ANCSA lands to which it is entitled from
within the original ANCSA boxes. It is undisputed that Sealaska
Corporation has an unfettered right to select forestland that is
virtually all roadless and old growth from within the withdrawal boxes.
These selections would have negative impacts on local communities,
including their watersheds and recreational and subsistence use areas.
The Sealaska bill proposes an alternative: the legislation would
permit Sealaska to select its remaining entitlement lands from outside
of the ANCSA withdrawal boxes. The proposed alternative land pool from
which Sealaska could select under the proposed legislation does in fact
include forestland suitable for timber development. However, the bill
commits Sealaska to selecting a great deal of second growth, instead of
old growth. In fact, the legislation ultimately would preserve 30,000
acres of roadless old growth timber.
The Sealaska bill would permit Sealaska to select 3,600 acres of
land as sacred and cultural sites, and 5,000 acres of land as Native
futures sites. Specifically, Sealaska would select 206 sacred sites and
more than 40 ``Native futures sites''. No timber development would be
permitted on sacred sites and Native futures sites. Because Sealaska
would be permitted to select these sites in lieu of timberlands, the
legislation reduces overall timber development by 8,600 acres.
Your question addresses the cost to the Forest Service of the
provisions in the Sealaska bill that would permit Sealaska to select
sacred and futures sites in lieu of land for timber development. The
5,000 acres designated by the proposed legislation as Native futures
sites would be utilized for ecotourism, cultural activities, and
renewable energy sites. By selecting these sites, Sealaska bill
preserves old growth roadless forestland while helping to strengthen
the economies of rural villages (by locating futures sites near rural
Native communities). For this reason, Sealaska believes there is a
significant public benefit to conveying the Native futures sites to the
Alaska Native community, despite the fact that the Forest Service would
have to account for the 5,000 acres of Native futures sites its
management of the 17 million acre Tongass National Forest.
Sealaska would also receive 206 sites that represent the some of
the most important sacred sites recognized by Tlingit, Haida, and
Tsimshian people of Southeast Alaska. It is worth noting here that
Congress tasked the regional Alaska Native Corporation in 1971 with
identifying, selecting, and preserving sacred and cultural sites under
ANCSA; in that sense, Sealaska is fulfilling the mandate of Congress,
and ANCSA, in this legislation. However, again, it is true that the
Forest Service would need to account for these sites in their
management of the Tongass.
Notably, regardless of whether Sealaska selects within the existing
ANCSA withdrawal boxes or outside of those boxes, Sealaska will select
its remaining entitlement lands from within the Tongass National
Forest. In other words, by selecting Native entitlement lands, whether
under existing law (ANCSA) or the proposed legislation, Sealaska's land
selections will require the Forest Service to adjust the implementation
of the land use plan for the Tongass to account for such selections.
However, under the proposed legislation, the Alaska Native community
will benefit because 206 sacred sites will be returned to the Native
community. Under the proposed legislation, the Alaska Native community
will benefit because 40+ Native futures sites will be made available to
the Alaska Native community for development as ecotourism sites and
renewable energy sites, or simply to have the sites (some of which are
traditional village areas) under Native ownership. Under the proposed
legislation, the Alaska Native community will benefit because Sealaska
will select forestland on the road system, lowering timber harvest
costs, benefiting Sealaska's Native shareholders and employees, and
substantially benefiting the Alaska Native economy. Finally, under the
proposed legislation, the public will benefit, because more than 30,000
acres of roadless old growth forestland will be preserved. We are more
than happy to provide you with additional maps and background that
confirm these conclusions.
We would also note that Sealaska is committed to working with the
Forest Service to ensure that management issues or concerns between and
among the two entities are limited. Moreover, we are committed to
maintaining dialogue or developing agreements to ensure there are few,
if any, management conflicts for our respective lands and shared
boundaries.
Question 2. Mr. Mallott, if this land bill does not go forward,
what will your corporation do to complete the selections are you
permitted to make under the Alaska Native Claims Settlement Act? What
would be the impact on the region of those actions?
Answer. Sealaska harvests timber on some of the land to which it
has received title under ANCSA. However, Sealaska has avoided
harvesting tens of thousands of acres of forestland now under Sealaska
ownership because those lands have significant public interest values.
Sealaska is now at the end of availability of timber on existing
Native lands previously designated by the Corporation as appropriate
for timber harvest. If Sealaska is to maintain its timber rotation--
that is, if Sealaska is to continue to provide timber jobs in rural
Alaska Native communities with unemployment ranging well above 20-30
percent--Sealaska must either: (1) receive those lands designated under
the proposed legislation for transfer to Sealaska; (2) select and
harvest roadless old growth lands from within the existing ANCSA
withdrawal boxes, which would require expensive road building and
reduced economic benefit to the Alaska Native and Southeast community,
as well as more roads in the forest; (3) shut down all timber
operations on Sealaska lands, with grave impacts to the local economy;
or (4) harvest environmentally sensitive lands already under Sealaska
ownership. The last three alternatives are bad alternatives. However,
the economic situation in Southeast Alaska is dire. Sealaska cannot
wait for a legislative solution that may come in 2, 5, or 10 years;
Sealaska is faced with real world constraints that demand a solution by
the end of the 111th Congress. Sealaska seeks a solution through this
legislation that will result in social, cultural, economic, and
environmental benefits to the Alaska Native community and to the
Southeast Alaska region.
We are more than happy to provide additional details regarding the
Sealaska legislation that support these conclusions.
______
Responses of Marcilynn A. Burke to Questions From Senator Bingaman
Question 1. Section 403 of Public Law 108-452, the Alaska Land
Transfer Acceleration Act (``ALTAA''), was required the Alaska Native
Corporations to submit priorities for finalizing land conveyances
within three and a half years of the date the legislation was enacted.
Did Sealaska Corporation submit its priorities for selection as
required by that law?
Answer. Yes. On June 10, 2008, Sealaska submitted priorities for
approximately 140,000 acres of selections to comply with the deadline
to file final land selection priorities under Section 403(a)(2) of
ALTAA.
Question 2. Can you please provide the Committee with a map that
illustrates the existing ANCSA withdrawal areas in Southeast Alaska,
the 170,000 acres within those areas that have been selected by
Sealaska for possible conveyance, and any lands that Sealaska has
prioritized for conveyance pursuant to section 403 of ALTAA?
Answer. Yes. The map has been sent to the Committee.
Question 3. Can you explain the remaining process for finalizing
Sealaska conveyances in accordance with ANCSA and ALTAA? Please specify
which party is responsible for each action that remains in that process
and whether any actions are dependent on an earlier action in order to
proceed.
Answer. To complete the process for finalizing Sealaska
conveyances, Sealaska would need to inform the BLM that it would like
conveyance to its prioritized Alaska Native Claims Settlement Act
(ANCSA) selections currently on file with the BLM. This notification is
necessary due to Sealaska's June 10, 2008, letter requesting that
conveyance work be held in abeyance pending the outcome of S. 881.
Once Sealaska notifies the BLM that it would like to proceed with
the conveyances, the agency would initiate the 90-day public process to
identify public easements to be reserved pursuant to Section 17(b) of
ANCSA. The BLM would request from the U.S. Forest Service (FS) a list
of any third party interests the FS created to ensure that the title
BLM prepares would be subject to such interests for the life of the
interest.
Once the 90-day public process is completed, the BLM would issue an
administrative decision to convey the lands that would contain a 45-day
appeal/grace period. The decision would be published in the Federal
Register and in the local newspaper nearest the lands for four
consecutive weeks.
At the end of the 45-day appeal period, the BLM would then issue a
title document in the form of an Interim Conveyance (IC) for the un-
surveyed lands in the absence of an appeal. The IC would transfer all
of the Federal government's right, title, and interest in the described
real property to Sealaska.
To finalize Sealaska's conveyance, the BLM would complete surveys
and issue confirmatory patents for the lands previously conveyed by
ICs, thus fully transferring Federal lands out of Federal ownership.
Question 4. It is my understanding that Sealaska has chosen not to
proceed to finalize its entitlement under ANCSA, resulting in the
process being indefinitely postponed. Is that correct? If so, how long
has the Sealaska conveyance process been on-hold as a result of
Sealaska's choice not to proceed?
Answer. Yes. On June 10, 2008, Sealaska submitted priorities for
approximately 140,000 acres of selections to comply with the deadline
to file final land selection priorities under Section 403(a)(2) of
ALTAA. Sealaska stated in the incoming document filed with the BLM that
the corporation was pursuing Federal legislation that would allow it to
receive its unfilled 14(h)(8) land entitlement from vacant,
unappropriated, out-of-withdrawal Federal lands in Southeast Alaska.
The letter further indicated that if the legislation were successful,
the prioritized land selection would no longer be necessary. Thus, BLM
will not proceed until notified by Sealaska.
Question 5. Approximately how long would it take from the date that
BLM received a request from Sealaska to proceed with the conveyance
process for the BLM to convey the land under ANCSA to Sealaska for
economic use?
Answer. It would take approximately nine months for the BLM to
issue a title document in the form of an IC for the un-surveyed lands
in the absence of an appeal. This form of title would allow Sealaska to
use the land for economic use. This process is described in more detail
in the response to question number 3, above.
Question 6. Did Sealaska ever submit an application under section
14(h) of ANCSA (regarding conveyance of existing cemetery sites and
historical places) for any of the land identified by S. 881 for
conveyance to Sealaska?
Answer. All but five of Sealaska's Sec. 14(h)(1) cemetery/
historical sites originally filed under ANCSA have been adjudicated and
closed. It is unclear whether any of the five remaining parcels are
identified in S. 881.
Question 7. Would any of the sites identified for conveyance to
Sealaska pursuant to S. 881 qualify as existing cemetery sites or
historical places under section 14(h) of ANCSA?
Answer. To our knowledge, examinations of the sites in S. 881 have
not been conducted, so we do not know whether or not they meet the
regulatory criteria.
Question 8. ALTAA established a schedule to finalize cemetery and
historical site selections, and mandated that any applications for such
sites that were submitted after the close of that process were to be
invalid and must be rejected. Did Sealaska Corporation submit an
application for the historical and cultural sites it is seeking through
this bill in accordance with ALTAA?
Answer. No, Sealaska did not file any requests pursuant to Sec. 204
of ALTAA. Sealaska filed selections for cemetery and historical sites
before the ANCSA regulatory deadline of December 31, 1976, in 43 CFR
2653.4(b). The ALTAA provided that eligible applications-of-record at
the time ALTAA was enacted on December 10, 2004, could be conveyed
notwithstanding acreage allocations. The provision also applied to any
of the 188 closed applications that were determined to be eligible and
reinstated under Secretarial Order (SO) No. 3220. Sealaska applications
were not part of the list of 188 in the SO, so the corporation did not
need to file an application.
Question 9. How many of the 170,000 acres selected by Sealaska for
possible conveyance from within the ANCSA withdrawal areas are under
salt water?
Answer. None of the 170,000 acres of land selections is under salt
water because Sealaska selected lands, not water. Sealaska's land
selections included both upland and coastline areas. However, Sealaska
has expressed concern over their selections since all of the land is
not prime upland that meets their socio-economic, cultural, sacred,
traditional and historical criteria.
Question 10. How many of the acres prioritized by Sealaska pursuant
to section 403 of ALTAA are under salt water?
Answer. None.
Question 11. Section 22(f) of ANCSA authorizes the Secretary of the
Interior and the Secretary of Agriculture to enter into exchanges with
the Alaska Native Corporations ``for the purpose of effecting land
consolidations or to facilitate the management or development of the
land, or for other public purposes.'' Has the Department used this
authority to exchange land or selection rights with any Native
Corporations?
Answer. Yes, the Secretary of the Interior has entered into
exchanges and agreements, many of which had enabling legislation and
parties in support of them.
Question 12. Would an exchange pursuant to section 22(f) resolve
any of the precedential concerns raised by the Department?
Answer. Yes, but only if a mutual agreeable exchange could be
reached. We defer to the Department of Agriculture Forest Service on
matters related to FS lands.
Responses of Marcilynn A. Burke to Questions From Senator Murkowski
on s. 881
Question 1. Could you explain your testimony that allowing Sealaska
Corporation to accept National Historic Preservation Act funding would
have ``wider'' implications. Since Native corporations already are
treated as tribes for program funding purposes under the definitions in
Section 4 of the Indian Self Determination and Education Assistance
Act, can you be specific as to BLM's concerns over the act?
Answer. Section 5(e)(2) of S. 881 would confer status to Alaska
Native Corporations under the National Historic Preservation Act that
Native Alaskan tribes would not have. The Department has concerns about
the inequity that would create.
Question 2. You speak in your testimony to the ``undesirable
precedent'' of allowing Sealaska to substitute new lands for past
selections. But Sealaska's areas for selection were unique in Alaska in
1971 because so much of the land was tied up by long-term timber sale
contract areas. Could you explain what other Native corporation has
equal selection problems, except perhaps Cook Inlet that has already
remedied its selection issues?
Answer. The BLM is not aware of equal selection problems for other
Native corporations wherein there is sufficient acreage that was
prioritized by the ALTAA deadline, but a corporation now asserts the
available land is not suitable to meet its entitlement. In addition,
every Native corporation, with the exception of the two inland Native
corporations, Doyon Ltd. and Ahtna, Inc., have significant amounts of
water within many of their withdrawal areas. All Native corporations
have lands within their withdrawal areas that have limited economic
development potential.
s. 940
Question 1. What is the total value of land and shared receipts
that have been given to Nevada or other political divisions of that
state by the BLM over the last decade?
Answer. The BLM has conveyed approximately 53,271 acres over the
last decade to the State of Nevada or its political divisions. The
table below shows these conveyances in four categories, and the
approximate acres and revenue received for each category of conveyance.
------------------------------------------------------------------------
Approximate Revenue
Conveyance Category Approximate Acres Received
------------------------------------------------------------------------
1) Administrative conveyances 604 acres $3,558,500
at Fair Market Value (FMV)
------------------------------------------------------------------------
2) Lands conveyed under 5,517 acres $22,125
Recreation & Public Purposes
Act
------------------------------------------------------------------------
3) Legislative conveyances at 13,980 acres $44,849,700
FMV
------------------------------------------------------------------------
4) Legislative conveyances at 33,173 acres $475,000
no cost, or at less than FMV
------------------------------------------------------------------------
Total 53,271 acres $48,905,325
------------------------------------------------------------------------
The BLM did not conduct appraisals and has not estimated the value
of the lands conveyed at no cost or at less than fair market value
(FMV), in accordance with legislation (conveyance type (4) in the table
above). These conveyances occurred over a ten-year period during which
real estate values fluctuated widely, and the FMV at the time of
conveyance would be difficult to reconstruct. The value of $475,000,
shown in the right-hand column, reflects the approximate revenue
received for the legislated conveyances that were directed to occur at
less than FMV.
The following are the shared receipts under the Southern Nevada
Public Land Management Act from enactment (October, 1998) though
October, 2009
State of Nevada (for Education) $151,755,825.45
Southern Nevada Water Authority $287,635,953.50
Clark County Department of Aviation $ 9,225,695.45
------------------------
TOTAL $448,617,475.50
Question 2. What is the estimated value of the lands to be conveyed
by S. 940 if it were to be signed into law?
Answer. The BLM has not conducted appraisals of the lands that
would be conveyed under S. 940. The following estimates are based on a
cursory review of current comparable land values in these general
areas.
The present estimated value of the proposed transfer of
approximately 40 acres for the College of Southern Nevada is $4
million ($100,000 per acre).
he present estimated value of the proposed transfer of
approximately 2,085 acres for the University of Nevada, Las
Vegas is $166.8 million ($80,000 per acre).
The present estimated value of the proposed transfer of
approximately 256 acres for Great Basin College is unknown due
to the lack of readily-available comparables.
Question 3. If the Committee amended the bill to: 1) remove the
ability of the colleges to put commercial and private buildings on the
land; 2) cherry-stemmed the carpenters canyon road out of the
conveyance; and 3) removed the area around the BLM fire station and
helipad, would that make this bill acceptable to the BLM?
Answer. In general, there are several options for addressing the
BLM's concerns with S. 940, and we would like to work with the sponsor
to identify the best solutions. In accordance with our testimony, an
amended bill should consider the following:
1) Because S. 940 would convey public lands at no cost, the
BLM testified that S. 940 should be amended to ensure the land
uses allowed under the bill are consistent with the uses
allowed under the Recreation and Public Purposes Act (R&PP).
The BLM's regulations, found at 43 CFR 2740, define the uses
that may occur on lands conveyed or leased under the R&PP. The
regulations state that ``use of lands or facilities for
habitation, cultivation, trade, or manufacturing is permissible
only when necessary for and integral to, i.e., an essential
part of, the public purpose.'' The BLM recommends that Sections
4 (c)(1) and 4 (d)(1) of the bill be amended to be consistent
with these regulations and the R&PP. Please see the response to
Question 5, below, for suggested legislative language.
2) Carpenter Canyon Road provides important public access to
FS and BLM-managed lands. Several options exist for maintaining
public access on Carpenter Canyon Road. These options include
removing the road from the conveyance or rerouting the road as
part of a development plan for the parcel. The BLM would like
to work with the sponsor to determine the best option for
retaining public access on Carpenter Canyon Road.
3) Federal safety regulations require a minimum of 500 feet
on all sides of the BLM Helipad to remain clear of any
obstacles over six feet high. This safety requirement could be
met through careful site planning and development on the
conveyed parcel, or by removing this area from the proposed
conveyance.
Question 4. How many acres should be removed from the 256 acre
Great Basin College to provide an adequate safety-zone buffer at the
BLM helipad located within the lands S. 940 would convey?
Answer. Removing 20 acres immediately adjacent to the Helipad would
provide a needed 500-foot safety buffer.
Question 5. Finally please provide maps and any ``minor boundary
changes'' or language modifications you desire to be made to boundaries
to the Committee within two weeks.
Answer. The BLM has not identified any boundary changes for the
parcels that would be conveyed under S. 940.
While BLM notes the conveyance occurs under its administrative
process, the Committee could consider amending Sections 4 (c)(1) and 4
(d)(1) of the bill as follows to ensure consistency with the R&PP Act
and BLM's regulations.
SEC. 4
(c) USE OF CONVEYED LAND.--
(1) IN GENERAL.--The land conveyed under subsection
(a) shall be used for educational or other public
purpose consistent with the uses allowed under the Act
of June 14, 1926 (commonly known as the ``Recreation
and Public Purposes Act'') (43 U.S.C. 869 et seq.), and
the regulations found at 43 CFR 2740.
(d) REVERSION.--
(1) IN GENERAL.--If the land conveyed under
subsection (a) ceases to be used for the public purpose
for which the land was conveyed, the land shall, at the
discretion of the Secretary, revert to the United
States.
s. 1272
Question 1a. Given that the majority of the BLM lands within this
proposed legislation are within the Oregon & California Grant Lands and
that law requires the BLM to share 50% of the receipts from management
with the O&C counties; Despite the current district land management
plan that puts this area off limits to timber management, what is the
current inventory of timber volume and its current value estimated to
be?
Answer. The current standing inventory of timber volume within the
6,104 acres proposed for wilderness designation on BLM-administered
lands is estimated to be approximately 340 million board feet. None of
these areas has been included within planned timber sales of the next
4-5 years, so determining the current value of the timber that could be
harvested sustainably from these stands would require the evaluation of
various factors, including logging costs and fluctuating market
conditions that are not present at this time.
Question 1b. Does the BLM remain committed to share 50% of any
receipts it receives from wilderness related activities from this land
with the county if this legislation is signed into law?
Answer. At present, no leases exist in this area that would
generate fee receipts after designation. Overall, the potential for
Federal fee revenue generation within the area proposed for wilderness
is very limited.
Question 1c. In your testimony you mentioned that 752 acres of the
S. 1272 proposal are outside the wilderness on adjacent BLM lands. How
are those acres managed at this time? Are they designated for timber
harvesting and if so, what is the average annual volume that could be
removed and what is its estimated value?
Answer. The 752 acres that are outside of the proposed wilderness
boundary, but within the corridor of the proposed Wasson Creek Wild and
Scenic River, are managed under the Northwest Forest Plan as Late
Successional Reserves and are designated as critical habitat for the
threatened and endangered northern spotted owl and marbled murrelet.
Under such designations, the area is managed for conservation values
rather than commercial timber production. Total standing volume within
these 752 acres is estimated at approximately 28 million board feet.
Question 2. Finally please provide maps and any ``minor boundary
changes'' or language modifications you desire to be made to boundaries
to the Committee within two weeks.
Answer. The BLM provided a map to Committee staff with the BLM's
minor boundary modification recommendations. The BLM has no language
modification recommendations.
S. 1689
Question 1. Will you assure us that any existing utility corridors
will be available for future utility lines in the NCA's and Wilderness
Areas included in this bill in such a manner that the process will be
no more difficult than existed prior to the designation of the NCA?
Answer. There are no utility corridors within the wilderness areas
proposed for designation under the bill, and no utility corridors
within the Desert Peaks NCA. There are several existing utility
corridors within the proposed Organ Mountains NCA, and under section
4(c)(2)(D) of S. 1689 the right-of-ways within these corridors may be
renewed, upgraded, and widened. While there may be increased public
scrutiny of processing right-of-ways within existing utility corridors
within an NCA, the BLM would process any applications for utility
corridors in the same manner as would occur if the area were not a NCA.
This process would include NEPA analysis exploring alternatives for
other locations, and identifying the impact to other resources.
Question 2. Will you assure us that any existing water developments
and pipelines will be available for future water developments and
pipelines in the NCAs and Wilderness Areas included in this bill in
such a manner that the process will be no more difficult than existed
prior to the designation of the NCA?
Answer. Under S. 1689, grazing would continue within the two NCAs
and newly designated wilderness. Within the NCA, grazing and grazing
developments, including water developments and pipelines, would be
administered in the same manner as non-designated BLM lands consistent
with the purposes of the NCA. Within the wilderness areas, grazing
would be administered under Appendix A of the Report of the Committee
on Interior and Insular Affairs to accompany H.R. 2570 of the 101st
Congress (H. Rept. 101-405). The maintenance of facilities existing
prior to designation as wilderness (including water developments and
pipelines) is allowed. The construction of new water developments and
pipelines may be authorized for the primary purpose of wilderness
resource enhancement or protection. Such a determination would be made
through the NEPA process.
Question 3. Will you assure us that any existing road and
transportation corridors will be available for future road and
transportation corridors in the NCAs and Wilderness Areas included in
this bill in such a manner that the process will be no more difficult
than existed prior to the designation of the NCA?
Answer. Any valid existing rights would continue after designation.
No new roads are permissible within wilderness areas. The BLM will
approve the use of routes to access inholdings within wilderness where
they existed at the time of designation, and by the means that were
used by the inholder at the time of designation. The routes may not be
improved to a condition more highly developed than existed at the time
of designation. Within the NCAs, the bill directs the BLM to designate
roads for motorized vehicle use which have been determined necessary as
part of a management plan. Under the provisions of section
4(c)(2)(B)(ii) of S. 1689, new roads may be established in the NCAs
only for public safety or natural resource protection.
Question 4. Will you assure us that any existing communications
corridors will be available for future communications corridors in the
NCAs included in this bill in such a manner that the process will be no
more difficult than existed prior to the designation of the NCA?
Answer. Right-of-ways for communication sites may be renewed in
both NCAs, and upgraded or widened in the Organ Mountains NCA under the
provisions of the bill, as noted in the answer to question #1. While
there may be increased public scrutiny of any new communication site
proposals within an NCA, the BLM would process any applications for
communications sites in the same manner as would occur if the area were
not a NCA. This process would include NEPA analysis exploring
alternatives for other locations, and identifying the impact to other
resources. There is one existing communication site within the Desert
Peaks NCA, and one existing communication site on the north end of the
proposed Organ Mountains NCA. These sites represent valid existing
rights.
Question 5. In April of this year, I requested information from the
Secretary on all wilderness, Wild & Scenic Rivers and other land set-
asides like National Conservation Areas that display both mineral and
energy resources. Jerry Schickedanz's testimony displays information
similar to what we expect in the maps we requested for the Desert Peaks
and Organ Mountains wilderness proposals.
Would you provide the Committee maps for the NCA's proposed in S.
1689 that show all existing roads, water developments, utility
corridors, and stock developments?
Answer. The BLM provided these maps to the Committee on November
13, 2009.
Question 6. Many of the areas slated for protected status in this
bill are roaded and have a history of wildland fires, particularly much
of the Organ Mountain proposals.
a. Please describe the fires that have occurred within any of the
areas proposed for Wilderness or NCA status in this bill that occurred
in the last decade.
Answer. Over the last decade, there have been several small fires
within the Organ Mountains. In 2008 there was a 2,800-acre fire, known
as the ``Dripping Springs Fire'' within the Organ Mountains that was
caused by human activity.
b. Please also describe the cost of fighting each of those fires
and estimate what they would have cost to fight given what is normally
allowed to be used in fire suppression in a Wilderness Area or an NCA.
Answer. Firefighting costs for the ``Dripping Springs Fire'' were
approximately $700,000. Our best estimate is that there would have been
no cost differential under S. 1689.
Question 7. Finally please provide maps and any ``minor boundary
changes'' or language modifications you desire to be made to boundaries
to the Committee within two weeks.
Answer. As noted in our testimony, the BLM would like to continue
its successful restoration efforts in the areas identified for
designation. The following language would provide additional clarity:
``Consistent with the Bureau of Land Management's wilderness policy,
habitat manipulation by chemical or mechanical means may be approved on
a project-by-project basis where necessary to correct unnatural
conditions resulting from human influence, where such manipulation
would enhance the wilderness resource and where natural processes have
been unsuccessful.''
The BLM is not recommending any additional boundary modifications.
______
Southeast Alaska Conservation Council,
Juneau, AK, March 4, 2010.
Hon. John Barrasso,
U.S. Senate, Washington, DC.
Re: Questions for Bob Claus, Southeast Alaska Conservation Council
Dear Senator Barrasso: On February 25, 2010, staff for the U.S.
Senate Energy and Natural Resource Committee forwarded to us your
question below and requested our response so that both could be added
to the hearing record for the Public Lands and Forests Subcommittee
hearing on October 8, 2009. That hearing related to S.881, The
Southeast Alaska Native Land Entitlement Finalization Act. Your
question reads:
Mr. Claus, The Tongass used to produce about 450 million
board feet of timber a year, but last year produced less than
30 million board feet from federal lands. Is SEACC's concerns
with this Sealaska conveyance bill that it will lead to larger
total timber harvests in the forest, or is the concern solely
that the areas proposed for harvest--the same areas proposed by
the Forest Service's most recent land management plan for
harvest--are in some way objectionable from an environmental
standpoint?
We appreciate the opportunity to respond to this important question
and clarify SEACC's concerns regarding S.881. We request that this
response and the accompanying report be included in official
Subcommittee hearing record for S.881.
Senator, there is no simple ``either-or'' answer to your question.
Our concerns are much broader than whether S.881 will increase total
logging levels on the forest. These concerns center on the ecological,
economic and social impacts from conveying these particular public
lands from the Tongass to Sealaska Corporation. First, management of
the subject lands is complicated by the legacy of unsustainable,
industrial-scale logging on Prince of Wales Island on both federal and
private lands. Second, far weaker management standards apply to logging
development on private lands in Alaska than those adopted for the
Tongass National Forest. Finally, removing lands designated for logging
on the Tongass from the timber base, increases resource extraction
pressures on other public lands because local manufacturers will lose
access to any of the timber logged by Sealaska, all of which is
exported in the round.
the legacy of timber-first management on the tongass
Industrial-scale logging on the Tongass National Forest began in
the 1950's when the Forest Service signed 50-year contracts with the
Ketchikan Pulp Company (KPC) and the foreign-owned Alaska Pulp
Corporation (APC). The contract gave the corporations public timber in
exchange for building and operating pulp mills in Ketchikan and Sitka.
These two 50-year contracts-the only ones of their kind in the National
Forest System-meant that clearcut logging and road building took
priority over all other uses and resources of the forest. Although only
a small fraction of the all the forested lands in Southeast Alaska have
been cut, intensive logging has systematically targeted the biggest and
best trees, and the most productive forest lands, the biological heart
of America's temperate rainforest.\1\
---------------------------------------------------------------------------
\1\ See, Albert 2010, infra note 5 at p.6 (Figure). A slightly
enlarged version of this same figure was attached as Exhibit 3 to the
Statement of Bob Claus, SEACC Community Organizer on S. 881 (Oct. 8,
2009). Traditionally, the Forest Service uses volume per acre or volume
strata to evaluate timber volume for forest planning purposes. The
``forest dentisty'' approach considers the volume of trees available
per square mile. Since logging was the primary justification for nearly
all road construction on the Tongass over the last 60 years, a
comparison of timber density to road miles provides a useful index for
timber quality independent of the tree size.
---------------------------------------------------------------------------
The 450 million board feet (MMBF) your question references is from
an era long gone, when the Tongass was dominated by the two exclusive,
50-year pulp contracts. In the 1980 Alaska National Interest Lands
Conservation Act, Pub. L. 96-487, Sec. 705a, 94 Stat. 2371, 2420
(ANILCA), Congress accepted the premise of the Forest Service's 1979
Tongass Land Management Plan that the commercial forest land made
available under that forest plan would support a timber supply of 450
MMBF annually. When the Forest Service's timber supply assumptions
proved unsustainable, Congress amended ANILCA in the 1990 Tongass
Timber Reform Act, PL 101-626, to enhance the balanced use of all
renewable Tongass forest resources.
After decades of logging on the Tongass National Forest, and the
loss of a substantial amount of its most intact, contiguous big-tree
forest, maintaining the ecological integrity of the Tongass requires a
far different management approach, a lighter touch, if you will, on the
all pieces remaining. Unfortunately, the most recent Tongass Land
Management Plan (2008) missed a key opportunity to tackle the timber
development legacy on the Tongass. Instead of addressing the
challenging economic transition facing local Southeast Alaska
communities in the 21st century, the 2008 Tongass Forest Plan continues
to rely on an archaic 20th century management model.
Since 1952, approximately 455,000 acres of productive old-growth
forest has been cut on the Tongass National Forest.\2\ Together, the
Alaska Native corporations, including Sealaska, the regional
corporation, and 10 village and 2 urban corporations, own and manage
nearly 580,000 acres of land within the boundaries of the Tongass
National Forest under the Alaska Native Claims Settlement Act. About
301,000 acres of these lands have been clearcut.\3\ Nearly 40 percent
of all the cut-over lands in Southeast Alaska are on Prince of Wales
Island; the same island where Sealaska's has chosen a selection pool of
about 95,000 acres from which it hopes to select its remaining timber
development lands from.\4\
---------------------------------------------------------------------------
\2\ USDA Forest Service, Alaska Region, Tongass Land and Resource
Management Plan Final Environmental Impact Statement, Plan Amendment at
p. 3-138 (2008) (hereinafter ``2008 Tongass Forest Plan Amendment'').
\3\ Id. at 3-150.
\4\ See Sealaska Corporation's website (http://www.sealaska.com/
page/maps__and__materials.html): ``On the map, the yellow areas
represent 327,000 acres from which Sealaska must currently select its
remaining 85,000 acre entitlement. Haa Aani proposes that Sealaska
instead withdraw from the green areas on the map--95,000 total acres
from which Sealaska will select 77,000.'' Sealaska has already selected
about 171,000 of the 327,000 acres it proposed to relinquish. See 2008
Tongass Forest Plan Amendment, supra note 2, at p. 3-301.
---------------------------------------------------------------------------
In our view, the majority of the national forest lands that
Sealaska wishes conveyed to it are more important to local communities
for the fish, wildlife, and outdoor recreation values they support than
for timber values, particularly those lands close to the communities of
Hydaburg, Port Protection, Point Baker and Edna Bay. The best way to
support these uses over the long term is to manage these lands
primarily for conservation, restoration, and stewardship purposes.
Another way of looking at S.881 is to compare the ecological values
associated with the ``economic development'' lands Sealaska seeks and
the lands previously selected by Sealaska within the withdrawal areas
set aside by Congress in the 1971 Alaska Native Claims Settlement Act
that it proposes to relinquish if this bill is enacted into law. A
recent report prepared by The Nature Conservancy helps provide an
ecological basis for this comparison.\5\ As the report's summary notes:
---------------------------------------------------------------------------
\5\ Albert, David M., The Nature Conservancy, Juneau AK, A
preliminary comparison of ecological values associated with Economic
Development and Native Future sites proposed under the Southeast Alaska
Native Land Entitlement Finalization Act (S. 811) and other lands on
the Tongass National Forest (March 1, 2010) (Albert 2010). Please
include the accompanying report into the official Subcommittee hearing
record for S. 881.
This comparison illustrated exceptionally high ecological
value within Economic Development lands for large-tree old
growth forests, karst forests and deer habitat in comparison
with Tongass-wide averages. In the context of current forest
condition on Prince of Wales Island, these lands provide
significant value for the long-term maintenance of biological
diversity in the southern Tongass. In contrast, lands currently
withdrawn for selection under ANCSA were comparable with
---------------------------------------------------------------------------
average values throughout the Tongass National Forest (NF).
Sealaska has identified a selection pool of about 95,000 acres that
the corporation hopes to select its remaining entitlement from.\6\
Nearly half of these acres, however, are located within watersheds that
rank in the top 25 percent of ecological values in all Southeast Alaska
and within the top 10 percent of forested lands on the Tongass.\7\ The
report identifies these highest ranked watersheds as including McKenzie
Inlet, Calder Bay, Trout Creek, Red Lake, Nutkwa Inlet, Port
Protection, Kassa Inlet, Mt. Francis, Mabel Creek and Flicker Creek.
---------------------------------------------------------------------------
\6\ See supra note 4.
\7\ See Albert 2008, supra note 5 at p.4.
---------------------------------------------------------------------------
Once conveyed to Sealaska Corporation, these lands will no longer
be subject to balanced multiple use management. In the past Southeast
Alaska Native corporations have chosen rapid, large-scale clearcut
logging and the export of all, or nearly all, of the timber from their
commercial forest lands over other options.
The impact from this change in ownership will be felt most
dramatically by the people who use these public lands day after day to
supply their families with food, make a living, and enjoy a way of life
no longer possible anywhere else in America. Lands in this selection
pool that should not be conveyed to Sealaska include those parcels on
North Prince of Wales, Kosciusko Island, and south of Hydaburg. There
are other lands in the pool identified by Sealaska that can provide
Sealaska with what they need but also cause the least amount of damage
to the lands important to local communities on Prince of Wales for
their high value fish, wildlife, and outdoor recreation values. SEACC
remains committed to finding a solution that works for Sealaska and all
the communities on Prince of Wales Island.
Weak Protections for Fish & Wildlife on Private Lands
Logging under the Amended Tongass Forest Plan (2008) is not the
same as logging on private lands under the Alaska Forest Resources and
Practices Act, AS 41.17.010--.950. Many of the most significant
management standards designed to safeguard valuable fish and wildlife
habitat, or internationally significant cave and karst lands, are lost
once if these lands are conveyed to Sealaska. For example, in order to
provide long-term protection for salmon habitat, Congress imposed
mandatory 100-foot no-cut buffers on all salmon and resident fish
streams. In response to a request from Congress in 1994, scientists
from the USFS' Pacific Northwest Research Station led a federal and
state scientific assessment of salmon habitat protection measures on
the Tongass. The Anadromous Fish Habitat Assessment concluded that even
the mandatory minimum buffers imposed in the Tongass Timber Reform Act
would not protect salmon and fish habitat over the long term. In
response, the Forest Service adopted standards and guidelines that
significantly expanded the minimum size of the no-cut stream buffers in
the Tongass Forest Plan. In contrast, under state law, only a variable
66-foot buffer is required, AS 41.17.116(a). High winds routinely
result in these small buffers blowing down, resulting in the loss of
long-term riparian habitat values.
Unlike the requirements under federal law to maintain biological
diversity and viable, well-distributed populations of wildlife, the
Alaska Forest Resources and Practices Act lacks any requirement that
private landowners take into account the impacts to wildlife from
logging those lands. Finally, unlike the Federal Cave Resource
Protection Act of 1988,\8\ no measures exist under state law to ensure
the perpetual protection of significant cave and karst systems from the
effects of logging. Given Sealaska's past land management track record,
these national and international treasures will be irrevocably damaged
and what we can learn from them lost.
---------------------------------------------------------------------------
\8\ Pub. L. 100-691, Nov. 18, 1988, 102 Stat. 4546 (16 U.S.C. 4301
et seq.).
---------------------------------------------------------------------------
Thank you for your careful attention to our response and careful
review of the accompanying comparison of the ecological values at stake
if S.881 becomes law.
Best Regards,
Bob Claus,
Community Organizer on Prince of Wales Island.
Buck Lindekugel,
Grassroots Attorney.
______
Responses of Jay Jensen to Questions From Senator Bingaman
Question 1. Section 22(f) of ANCSA authorizes the Secretary of
Agriculture to enter into exchanges with the Alaska Native Corporations
``for the purpose of effecting land consolidations or to facilitate the
management or development of the land, or for other public purposes.''
Has the Department used this authority to exchange land or selection
rights with any Native Corporations?
Answer. The Department of Agriculture can cite two uses of Section
22(f) of ANCSA, along with Section 1302(h) of the Alaska National
Interest Lands Conservation Act (ANILCA), as authority to enter into
land exchanges with Alaska Native Corporations. The authority has been
used with Goldbelt, Inc. and Sealaska Corporation to resolve access and
split estate issues utilizing Section 22(f).
Question 2. Could the Secretary use the exchange authority in
section 22(f) of ANCSA to convey land to Sealaska that is outside of
the ANCSA withdrawal boundaries and, if so, have the federal agencies
discussed this option with Sealaska?
Answer. Section 22(f) of ANCSA provides, in part, that the
Secretary of Agriculture is authorized to exchange lands or interests
therein, including Native selection rights, with Village and Regional
Corporations for the purpose of effecting land consolidations or to
facilitate the management or development of the land, or for other
public purposes. Section 22(f) (43 U.S.C. Sec. 1621) could therefore
be utilized as authority to exchange land interests with Sealaska that
are outside of Sealaska's ANCSA withdrawal boundaries for the purposes
stated in the statute.
The Forest Service has consideredan exchange of land interests with
Sealaska to address, in part, the conveyance of Sealaska's final
entitlement. In August 2002, Sealaska submitted a land exchange
proposal to the Forest Service. Sealaska identified a pool of
approximately 225,000 acres of federal land to consider as part of an
exchange. Sealaska identified approximately 50,000 acres of its
selected lands (lands still owned by the United States, but selected by
Sealaska under ANCSA) and 48,000 acres of land already conveyed to
Sealaska under ANCSA (lands owned by Sealaska). In return for federal
lands, Sealaska proposed to: 1) negotiate an agreement regarding its
final land entitlement with the Bureau of Land Management; 2) exchange
certain conveyed lands and selection rights to the United States; and
3) relinquish its remaining selections within the withdrawal areas.
In April 2003, the Forest Service completed a feasibility analysis
regarding the Sealaska proposal. The report found although portions of
the proposal were in the public interest, further negotiations would be
necessary regarding the specific parcels to be exchanged. Negotiations
continued between the Forest Service and Sealaska to address issues,
public concerns and modifications identified in the feasibility
analysis. Identified in the feasibility analysis were public and
community concerns regarding the potential loss of public access,
including access for subsistence use; effects on karst and cave
resources; the potential reduction in the supply of timber from the
forest; loss of old growth reserves and inventoried roadless areas; and
the future management of the lands conveyed to Sealaska. The Forest
Service and Sealaska negotiated for 14 months over the exchange parcels
and the terms of community and public access before negotiations ended
in mid-2005.
Question 3. Would an exchange pursuant to section 22(f) resolve any
of the precedential concerns raised by the Department?
Answer. S.881 directs the Secretary of the Interior to convey to
Sealaska three new categories of lands from the Tongass National
Forest: 1) economic development lands, 2) sacred site lands, and 3)
Native futures sites. None of these categories of land selections
currently appear in ANCSA. Additionally, other Native Corporations are
not entitled to make such selections. The Department of Interior is
concerned, that if S. 881 is enacted, that it may provide an impetus
for other regional corporations to reopen land claims at this final
stage in the land transfer program. Section 22(f) could be used as
authority for the Department of Agriculture (USDA) to negotiate a land
exchange with Sealaska for the purposes stated in the statute. If such
a land exchange with the USDA was found feasible and in the public
interest, the creation of these new categories of ANCSA selections that
others could use as an impetus to change existing selections and
entitlements could be avoided. However, discussions with Sealaska
regarding its previous land exchange proposal did not result in a
successful exchange.
Responses of Jay Jensen to Questions From Senator Murkowski
Question 1. In your testimony you state that the new selection pool
for Sealaska will affect your forest planning process and make it
harder for the Forest Service to transition from an old growth to
young-growth timber model.
a. Since the Sealaska initial 197,000 acre selection pool was
modeled in the recently revised Tongass Land Management Act and since
all of the economic development lands are proposed for timber harvest,
how will the bill negatively affect TLMP's implementation?
Answer. Under the Tongass Land Management Plan (TLMP), lands
identified in the legislation for possible conveyance to Sealaska
contribute to the land base and the scientific assumptions on which the
TLMP conservation strategy is premised. If the underlying land base
changes significantly, then the assumptions, analysis, and strategies
included in the plan may no longer be valid. The determinations related
to land use designations, adaptive management strategy for timber
sales, allowable sale quantity (ASQ), conservation strategy, and
standards and guidelines included in the TLMP could all be
significantly affected by a conveyance to Sealaska. Even though timber
harvest activities on the lands identified as Sealaska's economic
development lands were considered in TLMP, the management prescriptions
applicable to such activities on private lands are significantly
different from TLMP management prescriptions. Consequently, TLMP must
account for these differences and consider the cumulative environmental
effects from these activities on private lands.
If the underlying land base changes significantly, affecting the
assumptions of the land management plan, there would likely be a need
to amend the plan accompanied by compliance with the National
Environmental Policy Act. Although the proposed legislation states
implementation of the bill and the conveyance of lands to Sealaska will
not require an amendment or revision of TLMP, this language does not
resolve the land management issues that likely will arise regarding
TLMP implementation. Regardless of whether an amendment or revision of
TLMP is legally required, the significant management assumptions and
strategies that form the basis of the current plan would need to be
modified if enactment of S.881 occurs, and therefore TLMP could not be
implemented as currently intended. If TLMP cannot be implemented as
intended, a plan amendment will be needed.
b. Since there are about 277,000 acres of second growth timber in
the Tongass greater than 45 years of age and the proposed new Sealaska
selection pool contains about 20,000 such acres, how will the bill
affect your ``young-growth'' forestry process?
Answer. Historically, the forest products industry in and around
the Tongass was developed and sustained on producing high quality
products from old growth timber with the intention of transitioning to
young-growth forest products once timber in previously harvested areas
was mature, around approximately age 90-100. Recently, there has been
interest in the feasibility and financial costs of transitioning the
industry to young-growth based production as soon as possible rather
than wait for the young-growth to reach maturity. Forest management in
young growth to date has consisted of thinning young growth to improve
wood quality, growth, stand resilience, and habitat quality. These
intermediate treatments represent a significant investment in the
forest, as well as providing an opportunity to enter young-growth
stands earlier than stands without treatment.
The oldest stands thinned on the Tongass represent the best and
earliest opportunity to begin a transition to a young growth industry.
The Tongass currently has approximately 135,000 acres of young growth
which is greater than 40 years old (Tongass Young Growth Management
Strategy, March 2008). There are 51,569 acres young-growth located
within Phase 1 of the TLMP Timber Sale Adaptive Management Strategy. In
Phase 1, the timber program is restricted to a portion of the suitable
land base which excludes moderate and higher value roadless areas.
The proposed Sealaska selection pool targets 44,565 acres of young-
growth, with 19,343 acres originating in 1969 or earlier. Of the 19,343
acres, 13,319 lie within Phase 1 suitable land base. Sealaska's
proposed selection of these acres constitutes about 25% of the oldest
young-growth within the Phase 1 suitable land base. The proposed
selection of these young-growth lands by Sealaska will remove the
oldest and most available young-growth acreages within the Tongass.
These acres are considered ``available'' because the 2008 Tongass Land
Management Plan only allows commercial harvest to occur in the Phase 1
land base until certain volumes have been harvested for two consecutive
years. Because the acres Sealaska has targeted are in Phase 1 and are
some of the oldest young growth, they are the same stands the Tongass
plans to use to begin the transition and eventual conversion to a
young-growth industry. Removing these stands from federal ownership
will delay the Tongass' ability to begin this transition.
The investment made by the Tongass in intermediate silvicultural
treatments, primarily thinning, has been significant. About 20,721
acres out of the proposed Sealaska selection pool of 44,565 acres of
young-growth (approximately 46%) have been thinned at an approximate
cost of $500 dollars per acre. Thus, more than $10 million has been
invested by the U.S. Government in silvicultural treatments on lands in
the proposed Sealaska selection pool.
Additionally, the Forest Service has a long investment in various
research projects located within some of the young-growth stands within
the proposed Sealaska selection pool. There are approximately eight
sites, totaling about 184 acres with established, long term research
plots. Most sites were established in the 1970s and are planned for
continued monitoring activities into the future. These sites provide
significant young-growth data necessary for transition to a young
growth industry.
Question 2. In your testimony you state that the new selection pool
would harm old-growth habitats. Given that Sealaska returns all of its
current 327,000 acre selection pool in return for the 63,000 to 85,000
acres it would receive, and given that Sealaska has 112,000 acres of
old-growth in its current pool, compared to just 48,000 acres of old
growth in its potential new selection pool, the bill would seem to
potentially increase the amount of old-growth in the forest by about
60,000 acres. Could you explain your position further?
Answer. Although the Forest Service has not been able to validate
the acreage figures utilized in this question, it recognizes old-growth
structural stages have value for many forest attributes which add to
the overall landscape diversity for the Tongass National Forest.
The question appears to assume lands in the withdrawal area,
selected by Sealaska, but not yet conveyed, will return to Federal
ownership under the proposed legislation thereby adding benefits not
currently considered. This is not the case. There are no lands for
Sealaska to ``return'' because the lands selected by Sealaska have not
left Federal ownership. As such, any benefits from old growth habitat
contained in these acres have already been considered under the TLMP
and continue to be managed as part of the national forest.
The question also appears to assume more valuable old growth exists
on the lands within the withdrawal area than the lands identified for
Sealaska selection in the proposed legislation. The lands currently
selected by Sealaska in the withdrawal areas generally do not contain
significant amounts of economically viable old-growth. These lands are
managed primarily for their scenic and recreation values, with fewer
acres managed for timber production as allocated under TLMP. Some of
the lands identified as economic development lands in the legislation
are allocated to timber production in the TLMP. The proposed selection
areas also include lands currently managed for scenic view shed,
recreation, and old-growth habitat. The proposed selection areas on
Prince of Wales, Tuxekan, and Kosciusko Islands include approximately
55,000 acres of productive old-growth. They are within the Phase 1
lands of the 2008 TLMP Timber Sale Adaptive Management Plan and are
suitable for harvest, with the exception of portions currently
designated as old growth reserves. There are 12 old growth reserves
within the above mentioned proposed selection areas. All or part of
three of the four old growth reserves on Kosciusko Island would be
removed from federal ownership, as would two of the three on Tuxekan
Island. These lands represent a significant component of the TLMP
conservation strategy area for wildlife. Loss of these old-growth areas
would likely undermine the conservation strategy in TLMP and
potentially lead to threatened and endangered species listings. Even
though timber harvest in the proposed selection areas may have been
considered in TLMP, the Forest Service is required to mitigate effects
from such activities to avoid species listings, whereas private
landowners do not have similar requirements.
Responses of Jay Jensen to Questions From Senator Barrasso
Question 1. In your testimony you say the Department supports
completion of the entitlement due Sealaska in the Alaska Native Claims
Settlement Act. Given that it's been nearly four decades since the act
passed, doesn't it make sense to alter the selection pool to speed
selection and conveyance of the final acreage under the 1971 Act? Isn't
that especially the case since the original pool was so impacted by the
long-term timber contracts in the Tongass National Forest that were in
effect then, but which since have been cancelled by your Department?
Answer. The 2004 Alaska Land Transfer Acceleration Act, P.L. 108-
452, (the Acceleration Act), addressed issues such as final
prioritization of selected lands that hindered timely conveyance. It is
important to note that sufficient uplands exist within Sealaska's
existing selections to convey its full entitlements under ANCSA and
that the BLM is prepared to convey lands to bring Sealaska
significantly closer to its full entitlements. It is equally important
to note that BLM needs to survey lands in order to convey very close to
entitlement so that over-conveyance does not occur; therefore some
acreage must be held back for final survey calculations. Any holdback
acreage would be done in cooperation with Sealaska and according to
priorities on file.
Another factor affecting Sealaska's receipt of its final
entitlement under Section 14(h)(8) is the complicated Section
14(h)formula. The total acres remaining under the Section 14(h)(8) pool
of lands available to the ten remaining eligible regional corporations
cannot be determined until after patents to other subsections in the
formula have been completed statewide unless a statutory amendment sets
the remaining acreage in the pool and breaks the formula whereby each
subsection of the 14(h) formula can be accelerated. Title II of the
Acceleration Act addressed certain issues to assist in determining
Sealaska's final 14(h) (8) entitlement, but stopped short of setting a
remaining acreage; thus adjudication and patent of all the subsections
still must occur. The Bureau of Land Management (BLM) has been willing
to convey lands to Sealaska based on its projection of final
entitlement, but Sealaska requested the BLM wait while Sealaska is
advocating for legislation or considering a land exchange with the
Forest Service. Sealaska has been advocating for legislation or
considering a land exchange with the Forest Service the last ten years.
Most recently, Sealaska and other Regional Corporations were given
42 months from enactment of the Acceleration Act to identify final,
prioritized selections. Sealaska identified its final, irrevocable
priorities on the last day, June 10, 2008, and in that same transmittal
requested its prioritized selections not be conveyed because the
corporation was pursuing federal legislation. Sealaska's projected
entitlement, based on the BLM's most recent 14(h)(8) estimates, can be
conveyed to Sealaska, but the Corporation has asked for delay because
the prioritized original selections inside the withdrawal areas would
no longer be necessary if legislation is enacted.
Many factors have affected the timely conveyance of ANCSA
entitlement, but the existence of the now cancelled long-term timber
sale contracts is not one of the factors. Lands subject to timber sale
activities were not eliminated from the withdrawal areas from which
Sealaska made its selections.
Additionally, ANCSA was enacted in 1971, and the first major
amendments were enacted in 1976, including Section 2 of P.L. 94-204.
Section 2 requires proceeds derived from contracts, leases, permits,
rights-of-way, or easements pertaining to lands withdrawn for selection
under ANCSA to be set aside for payment to Native Corporations as the
lands are conveyed. The Forest Service set aside proceeds from the
timber sales. The original deadline for Sealaska to make its ANCSA
Section 14(h) (8) selections was September 18, 1978. The selection
deadline occurred two years after enactment of the requirement to set
aside proceeds. Proceeds are released after BLM conveys the land. Thus
far, Sealaska has received more than $2 million in escrow proceeds from
timber sales occurring on lands eventually conveyed to Sealaska. It was
not until the Acceleration Act of 2004, that Sealaska was required to
file final selection priorities, and when it did, it requested further
delay because of proposed legislation.
Question 2. Mr. Jensen, concerning land planning in Southeast
Alaska, doesn't most all of the land proposed for timber selection by
Sealaska in S. 881 overlap areas proposed for harvesting already in
your revision last year of the Tongass Land Management Plan? How will
that harm the environment if the areas for ultimate harvest are
identical?
Answer. The Forest Service estimates that the breakdown of the
broad vegetation types of the economic development land identified on
Attachment A to the legislation includes a total of about 107,000 acres
of productive old growth, with about 72,000 acres of high volume-old
growth. The proposed selection areas on Prince of Wales, Tuxekan and
Kosciusko Islands include approximately 55,000 acres of productive old-
growth. These lands represent a significant component of our
conservation strategy area for wildlife. Prince of Wales Island has
been identified as a biodiversity hotspot by The Nature Conservancy.
The U.S. Fish & Wildlife Service has raised significant concerns
regarding goshawk endemism (indigenousness) and viability, endemic wolf
viability, and viability for other endemic species and lineages. Loss
of these old-growth areas will likely affect our conservation strategy
in TLMP and potentially result in threatened and endangered species
listings.
The selections proposed in this legislation will be managed under
the standards and guidelines in TLMP until or unless they are conveyed
to Sealaska. Private lands are managed under the Alaska Forest
Resources & Practices Act (AFRPA). The AFRPA standards and guidelines
used to mitigate impacts to salmon streams, soils, water, wildlife,
scenery, karst and other natural resources are less stringent than
those found in the TLMP. Consequently, the environmental effects on
lands harvested by Sealaska are likely to be greater than the
environmental effects from timber harvest activities occurring pursuant
to TLMP.
______
Appendix II
Additional Material Submitted for the Record
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Statement of the Alaska Wilderness League, on S. 881
Whenever swaths of federal lands are slated to leave the public
rolls, there must be a commonsense accounting of the transaction All
parties involved in the matter must be getting the fairest, most
evenhanded deal possible. Before the ledger can be balanced, it must be
made clear precisely what the public is getting in return for what it
is surrendering. In the case of the Sealaska land transfers, this means
considering the impacts their actions would have on the land that will
be removed from federal ownership, as well as the impacts their actions
would have on adjacent lands and waters, nearby communities, and
existing public uses. Providing durable conservation protections for
important areas outside of the Sealaska solution space will begin to
provide the fairness the public requires for carrying out this
transaction.
A coalition of conservation organizations has developed a Tongass-
wide Framework of Conservation Priorities to serve as a blueprint for
efforts to build a comprehensive plan for the Tongass, aiming to
achieve proper balance while meeting the needs of the resource, and of
a variety of users. The framework is based on a set of community and
ecological values. In particular, the framework is founded on a
conservation assessment of the Tongass completed in 2007 by Audubon
Alaska and The Nature Conservancy. The assessment identified the
biological values of watersheds across the 22 bio-regional provinces in
Southeast Alaska based on the abundance of winter deer habitat, summer
bear habitat, nesting habitat for marbled murrelets, spawning and
rearing habitat for all 5 species of salmon plus steelhead, large-tree
old growth, and estuaries. The analysis and assessment included input
from many of Southeast Alaska's and the nation's top biologists and
ecologists as well as information and data from scores of agency
reports and peer reviewed literature.
Through the extensive study and analysis, the group of scientists
and analysts generated a ``conservation target'' map that identifies
the highest ranked watersheds in each region of the Southeast Alaskan
coastal temperate rainforest. These target watersheds as well as areas
identified as high-value community use areas are the basis of the
Framework of Conservation Priorities.
The Framework highlights the fact that many of the Sealaska
Corporation's ``out of the box'' selections occur in areas that are of
the highest conservation value. The fact that some of the most
productive timber acres on the forest are also some of the highest
value in ecological terms has long been a source of contention amongst
the various interest groups. If the land transfers in S. 881 were to
become law, the lands in question would depart federal ownership, and
management would be subject to the regulations of the Alaska Forest
Practices Act as applied to private lands. Existing state law simply
does not offer the level of protection these most ecologically valuable
acres require to remain intact and maintain the productivity that makes
them so important in the first place.
While it is clear that the economic zones in S. 881 would be
subject to clear cut logging, which certainly presents its own set of
challenges, the legislation as currently written says frustratingly
little about specifically how the native future sites and cultural
sites are to be managed by the Sealaska Corporation. It appears that
Sealaska will have near complete autonomy over these transferred lands,
without regard to the impacts their management decisions will have on
the nearby communities, transferred lands, adjacent lands or existing
public uses of these lands.
Yet the problems do not begin and end with the obvious negative
environmental impacts. There are also cultural and economic conflicts
inherent in the legislation before the Committee. The legislation fails
to consider the needs of small, forest-dependent communities all across
the region, as well as the needs of the timber industry, the commercial
and recreational fishing industries and Southeast Alaska's leading
economic engine, tourism. Failing to take advantage of this opportunity
to engage all user groups in the legislative process, passage of S. 881
would only serve to codify conflict.
While the conservation community is seeking to protect the most
valuable conservation areas on the Tongass National Forest, we are also
not the only stakeholder with something to gain, or subsequently lose.
The timber industry is attempting to gain certainty that they will have
a supply of suitable wood for the long term. Southeast Alaska's
commercial and recreational fishermen are working tirelessly to make
sure that the Tongass remains a salmon factory. Subsistence users want
to see to it that their backyard grocery store remains open for
business. Sealaska wants finally to resolve its entitlements and
provide a benefit to its native shareholders.
History cautions against another single-stakeholder answer to the
questions facing the management of America's largest national forest.
The long-term timber contracts that dominated the landscape of the
Tongass for nearly half a century ending in 1997 serve as an important
lesson in the future management of the forest. The long-term timber
contracts represented a single-stakeholder arrangement that served to
leave many on the outside of the Tongass management process looking in.
There was no aspect of the forest that the timber contracts didn't
touch in a significant way. The implications of those contracts:
environmental, cultural, and economic, are still being dealt with
today.
With S. 881, the stakeholder has changed, but the legislation will
inevitably repeat the same mistakes, creating new conflict and further
narrowing the solution space for resolving that conflict. Simply put,
equity for all the forest users cannot be created in a vacuum.
S. 881 resolves one set of issues, only to plant the saplings of
new problems in fertile soil. This nearly intractable tug of war over
areas of common concern requires not another round of ill-suited
legislation, but rather what is instead needed is a robust public
process that builds ground-up momentum and serves as a legitimate forum
for all stakeholders to share in the development of a common solution,
suitable to as many as possible. This process is already underway, and
it is in this established forum that a workable concept, with broad
based regional buy-in may be in the offing.
In this web of bottom lines, consensus may be impossible; but that
is not to say a healthy balance is out of reach. No single party will
likely ever be entirely satisfied; this is the reality of modern public
lands management; but any legislation that moves forward must be
crafted in the best interests of, not at great cost to, the collective
community of the Tongass.
______
Statement of John M. Fowler, Executive Director, Advisory Council on
Historic Preservation
S. 881
SUMMARY STATEMENT
S.881 includes amendments that would add lands held by an
incorporated Alaska Native group, a Regional Corporation, or a Village
Corporation established under the Alaska Native Claims Settlement Act
(ANCSA) to the National Historic Preservation Act (NHPA) definition of
``tribal lands,'' and therefore have a direct bearing on the review
process under Section 106 of the NHPA regarding undertakings in Alaska.
These effects may include changes to the review and consultation
process on any federal undertaking in Alaska and the role of all ANCSA
entities in the broader preservation program.
The ACHP recommends that the committee give further consideration
to these effects and solicit an analysis from affected agencies within
the Administration regarding the anticipated impacts of these
amendments on the role of ANCSA entities, the State of Alaska, federal
agencies, and the public in the NHPA; and the role of ``Native
villages'' in the Section 106 process.
BACKGROUND
Title II of the NHPA established the Advisory Council on Historic
Preservation as an independent federal agency. The NHPA charges the
ACHP with advising the President and the Congress on historic
preservation matters and entrusts the ACHP with the unique mission of
advancing historic preservation within the Federal Government and the
national historic preservation program. The ACHP's authority and
responsibilities are derived from the NHPA. General duties of the ACHP
are detailed in Section 202 of the NHPA (16 U.S.C. 470j) and include:
Advising the President and Congress on matters relating to
historic preservation;
Encouraging public interest and participation in historic
preservation;
Recommending policy and tax studies as they affect historic
preservation;
Advising State and local governments on historic
preservation legislation;
Encouraging training and education in historic preservation;
Reviewing federal policies and programs and recommending
improvements; and
Informing and educating others about the ACHP's activities.
Under Section 106 of NHPA (16 U.S.C. 470f), federal agencies are
required to consider the effects of undertakings, carried out by them
or subject to their assistance or approval, on historic properties and
provide the ACHP an opportunity to comment on them. Pursuant to
rulemaking authority under Section 211 of the NHPA (16 U.S.C. 470s),
the ACHP has issued the regulations that implement Section 106 (36
C.F.R. part 800). The ACHP plays an oversight role in the Section 106
process, ensuring that historic preservation needs are considered in
light of project requirements. The Section 106 process guarantees that
State and local governments, Indian tribes, Native Hawaiian
organizations, businesses and organizations, and private citizens will
have an effective opportunity to participate in project planning
affecting historic properties. Through its administration of Section
106, the ACHP works with these parties to ensure that their historic
preservation interests are considered in the process. It helps parties
reach agreement on measures to avoid or resolve conflicts that may
arise between development needs and preservation objectives, including
mitigation of harmful impacts.
S.881 AND THE SECTION 106 REVIEW PROCESS
The ACHP's comments are focused specifically on Section 5(e)(2) of
the S. 881 bill that would expand the definition of ``tribal lands''
under the NHPA. Amendments to the NHPA in 1992 specified that federal
agencies must consult with ``Indian tribes'' in the Section 106 process
when the undertaking may affect historic properties of cultural and
religious significance to them. 16 U.S.C. 470a(d)(6)(B). The term
``Indian tribe'' in the NHPA includes Native villages, Regional
Corporations and Village Corporations under the Alaska Native Claims
Settlement Act (ANCSA). 16 U.S.C. 470w(4).
The regulations implementing Section 106, 36 C.F.R. Part 800, were
amended to incorporate the requirement of consultation with ``Indian
tribes.'' Some of these regulatory amendments are directly related to
whether an undertaking takes place on ``tribal lands'' as currently
defined in the NHPA. Those regulatory amendments, among other things,
set forth that a Section 106 agreement involving an undertaking that
takes place in ``tribal lands'' is invalid unless signed by the
relevant ``Indian tribe.'' They also require federal agencies to
consult with ``Indian tribes'' on the same basis, or in lieu of, the
State Historic Preservation Officer, when the undertaking takes place
on ``tribal lands.'' The basis behind providing such consultative
rights is the federal government-to-government relationship with, and
respect for the sovereignty of, Federally recognized tribes, the only
entities that have lands under the scope of the current definition of
``tribal lands'' (i.e., all lands within the exterior boundaries of any
Indian reservation, and all dependent Indian communities). Our
understanding is that, presently, the only the lands within Alaska that
qualify as such ``tribal lands'' are those within the Annette Island
Reserve. It is also our understanding that, while the federal
government has a government-to-government relationship with Alaska
Native Villages, it does not have such a relationship with ANCSA
corporate entities.
The S. 881 amendment to the definition of ``tribal lands'' would
increase such lands in Alaska by millions of acres and add consultative
rights to corporate ANCSA entities in the Section 106 process.
In this regard, we note that there is an apparent discrepancy
between the NHPA definition of ``Indian tribes'' and the proposed
amendment to ``tribal lands'' in S. 881. While the NHPA definition of
``Indian tribes'' includes ``Native villages'' under ANCSA, the amended
``tribal land'' definition under S. 881 removes any mention of Native
villages, and replaces them with incorporated Alaska Native groups. We
believe further consideration should be given to how this could affect
the role of Native villages in the Section 106 process, in comparison
with that of the corporate ANCSA entities, were these amendments to
take effect.
RECOMMENDATIONS
The ACHP encourages the active participation of Indian tribes,
including Native Villages, Regional Corporations, and Village
Corporations under ANCSA in the federal preservation program in general
and the Section 106 process in particular. S.881 has the potential to
expand the effective participation of Indian tribes even further in
Alaska.
We recognize, however, that under the S. 881 amendments, a key
entity--Native villages--would effectively lack certain Section 106
consultation rights that would now be given to ANCSA corporate
entities. The ACHP recommends that the Committee clarify its intent in
removing these Native villages from the definition of ``tribal lands,''
but including incorporated Alaska Native groups, so that their
respective roles in the Section 106 process may be accurately defined
if S. 881 becomes law.
More importantly, the ACHP asks that the Committee allow federal
agencies to further study the effects of the mentioned S. 881
amendments to the NHPA and consult with other stakeholders, so that we
can more properly advise the Committee on these issues.
______
Statement of Alan Stein, Former Director of the Salmon Bay Protective
Association and President of the Point Baker Association, on S. 881
Thank you Mr. Chairman and Members of the Committee for placing
this statement into the record for this hearing on S 881.
Many important legal events surround the area that is the subject
of this bill and with your indulgence, I am going to provide you with
that context, the better to inform your deliberations, so you can see
what protections this bill could remove and what injustices would
occur.
For it is this area on northern Prince of Wales Island that has
spawned two major forest lawsuit battles and the National Forest
Management Act of 1976.
In 1793,the British explorer George Vancouver, on board the Royal
Navy's Discovery, named the islands you see before you after the first
son of King George who was the Prince of Wales. The early explorers
called it the Prince of Wales Archipelago and it was for a time the
intention of Spain to develop a large harbor on its west coast more
expansive than San Francisco Bay.
The island is huge. It takes more than an hour to fly from its
southern border at 54 degrees 40 minutes North latitude to Point Baker
on its north end at 56 degrees and 20 minutes. It's about a 120-mile
trip across our nation's third largest island.
When I first flew over it in 1971, I saw huge tracks of denuded
mountain slopes, some over a thousand acres in size. There was no NEPA
or any other environmental law to protect these trees save one: the
Multiple Use Sustained Yield Act. The emphasis was on Use and not
Sustainability however.
When the tiny plane carrying my bride and me to our new homestead
flew over the mountains near Salmon Bay Lake we saw a remarkable sight,
for our eyes were used to seeing Chicago skyscrapers, not a wilderness
forest stretching away to Point Baker across fifteen miles of mountain
ranges-about the size of the lakefront of Chicago at the time.
Shortly after I built a cabin, with my own two hands, a decision by
the US Forest Service was made to log much of this wilderness. The
Point Baker Association formed to oppose the logging. I was sent to
Juneau to do something to stop it. I organized a lawsuit and became one
of three plaintiffs. Our suit in 1975, Zieske v Butz-a landmark
environmental case-resulted in an Alaska Federal Judge issuing an
injunction against clear-cutting anywhere on the roughly 400,000 acres
of the north end of the island from Red Bay to Calder Bay, roughly the
northern area that Sealaska now wants to grab from the public trust,
excluding mountain tops and other areas that do not grow trees.
Within that 400,000 acres, the 80,000 acres Sealaska wants now is
most of the accessible land, excluding the areas Congress has already
designated LUD II in the Tongass Timber Reform Act of 1990-Salmon Bay
on the East (20,000 acres) and Mount Calder on the West. These two
borders should be expanded to include all the area Sealaska now wants
to ravish.
Because they thought Zieske threatened to halt clear-cutting
throughout the United States, the timber industry created a hysteria
that this would happen, Congress met three months after the injunction
was issued, and overturned a statute that had been in effect since 1898
and upon which the injunction was based.
In place of the Organic Act, Congress passed the National Forest
Management Act. This despite considerable support from Governor Hammond
in his statements to Congress to protect Point Baker and its
surroundings from industrial logging. I testified before this committee
then for the creation of buffer strips to protect salmon streams from
logging. Congress chose not to create them, despite considerable
scientific support. Congress also lifted the injunction and allowed the
US Forest Service to cut about half of the marketable timber on the
north end.
Thirteen years passed. Industrial clear-cut logging removed about
half of the marketable timber, placing clear-cuts so large and numerous
that passing satellites recorded this image* in the late 1980s:
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* Image has been retained in subcommittee files.
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TAXPAYER SUBSIDIES FOR BUILT INFRASTRUCTURE
Meanwhile taxpayers subsidized the building of what I would
estimate at 150 miles of roads in the area that is subject to this
bill. The cost of these roads per mile was between $500,000 to
$1,000,000 in 1980s dollars. Expensive bridges were constructed, again
subsidized by taxpayers. A logging camp the size of a small town was
constructed. All of these taxpayer-paid-for items were made under the
assumption that taxpayers would reap the benefits of future development
in the form of revenue of future timber sales. In today's dollars, the
value of this infrastructure is probably 200 to 300 million dollars.
This does not include the millions of dollars in the US Forest Service
budget that planned for the infrastructure.
EXISTING CLEAR-CUTS NOW THREATEN WILDLIFE
The effect that 25 years of commercial clear-cuttinghad upon
wildlife populations in this area was a 50% reduction of prime deer
habitat. Half the trees were cut. This was an unsustainable practice.
In short, because of 25 years of past logging, existing clear-cuts
already pose a severe threat to wildlife in the area Sealaska wants to
log.
This bill would do nothing but seal their doom. The deer are the
soul of this place, the American eagle its spirit, and the raven its
voice. Passing this bill will silence the raven, down the eagle, and
bring the demise of the deer.
SECOND LAWSUIT OVER LOGGING THIS AREA
In March 1989, the Exxon Valdez went on the rocks. It affected me
and almost all Alaskan fishermen like me very deeply. I read an EIS
about further clear-cutting in this area and became so angry that I
vowed to again take action. I organized the Salmon Bay Protection
Association to stop the abuses of clear-cutting near salmon streams and
to save the beautiful watershed of Salmon Bay.
The SBPA was the largest organization of commercial fishermen and
canneries ever to unite on one environmental endeavor in Alaska. I was
voted its director and hired the lawyer who is sitting before you
today, Buck Lindekugel, fresh out of law school and ready for his first
big case. He got it.
I found new scientific evidence that clear-cutting next to salmon
streams causes irreparable harm next to the streams. Irreparable harm
is of course the legal standard for an injunction.
Sworn statements of fish scientists were entered into the record of
the court case and presented to Congress.
Later in 1989, the Federal District Court in Alaska issued an
injunction against logging within 100 feet of salmon streams on the
north end of Prince of Wales Island or logging within Salmon Bay. The
Forest Service extended the protective injunction to all 2000-plus
salmon streams in the Tongass National Forest.
We had proved irreparable harm to salmon streams. We had saved part
of a major watershed important to our commercial fleet and to
recreational steelhead fishermen.
This second landmark decision, Stein v Barton, became the
justification for Congress passing a buffer strip provision in the
Tongass Timber Reform Act in 1990, the first federalFederal recognition
of the scientific benefits of not cutting timber next to fish streams.
Our case had proved the argument. The 100-foot buffer, applied to
either side of creek, protects fish from cold and heat, prevents
erosion of banks, catches sediment, and most importantly creates the
infrastructure of downed trunks that form pools, riffles, and insect
density vital for fish survival. Big 150-200 high trees are the
architecture of the stream. They are as valuable to the stream when
they fall as they are when they provide shade and insects standing.
Sealaska was not happy about the precedent Stein v Barton
established, because a State Forest Practices Act being considered by
the State of Alaska legislature, which would regulate their logging on
their private lands, could have contained the same 100-foot protection.
Under the State Forest Practices Act which would govern if this bill is
passed, the limited protections of the NFMA would be watered down even
more.
SEALASKA LANDS NOT REGULATED BY FEDERAL FISH AND WILDLIFE PROTECTIONS--
WEAKER ALASKA LAWS APPLY TO SEALASKA LANDS
The same year that Congress created buffer strips, the Alaska
legislature, heavily lobbied by the Sealaska Corporation, enacted a
buffer strip provision considerably smaller than the 100-foot minimum
that scientists had stated, under oath, were necessary, a conclusion
which the Federal Court in Alaska accepted when issuing its 100-foot
minimum order.
Many in Alaska, including my nonprofit corporation of commercial
fishermen, wanted the federal Federal buffer strip size applied to
private lands. Sealaska opposed. Sealaska is by far the largest private
timber land operator in Alaska.
Sealaska's promotion of less-than-minimum buffer strips under State
law is emblematic of how they maltreated their land.
The results of Sealaska's promotion of less-than-necessary stream
protections left fish and habitat more vulnerable, in my opinion, to
damage.
As a result of Stein v Barton, generations of salmon and trout have
had a better chance of survival throughout the Tongass National
Forest's more than 2,000 fish streams.
Conversely, generations of fish in creeks flowing on land that Sea
Alaska cut ruthlessly have had, again in my opinion, less chance of
survival.
REASONS S 881 SHOULD BE KILLED IN COMMITTEE
Compensation to Alaska Natives in ANCSA in 1971 was fair. Natives
never occupied all of Prince of Wales Island. They had fish camps in
the summer on some streams and hunted. They occupied small villages.
ANCSA recognized this by allocating land around the villages. Moreover
Natives got one billion dollars in 1971. Sealaska should log these
lands they agreed to accept in 1971 and stop coming back to Congress to
break a 38 year old deal.
S 881 is a land grab
What is fair is often determined between parties negotiating. The
head of the Alaska Federation recently wrote that ANCSA was not fair
and indeed Natives considered it their Holocaust. Really.See Juneau
Empire 2009.
In 1970, Alaska's Native leaders struck a deal.
It was a fair and just deal then and it is a fair and just deal
now.
S. 811 is nothing but a land grab wrapped in an imaginary
injustice.
The wealth of lands claimed by Alaskan Natives in 1970 was
estimated in the tens of billions of dollars by the Memorandum
submitted to Congress on behalf of the Alaska Federation of Natives by
Paul Weiss Goldberg Rifkin Warton and Garrison. (See http://
www.sealaskaheritage.org/collection/Curry_W/afn_letter.htm).
In 1969, Alaskan Natives were willing to settle for $500,000,000
and 2% royalties on all federalFederal lands. See the 1967 position
paper of the AFN on http://www.sealaskaheritage.org/collection/Curry_W/
curry_website/17_8_2/002.pdf
Yet ultimately Alaska's Natives settled for one billion dollars and
over one hundred million acres of land. It appears the changes in
amounts of cash and land bargained for from the late 1960s to 1971
reflect a meeting of the minds through negotiations.
Let us not forget that prior to ANCSA 1971 a federal court
extinguished natives claims to aboriginal rights to the land in the
Tongass National Forest and damages limited to compensation in money.
Seven million dollars in compensation was suggested. Given the one
billion ANCSA allocated the examination of the historical record prior
to ANCSA shows SE Alaska Native Corporations got a rich deal indeed.
Regardless, it is clear that the Tlingit and the Haida obtained the
benefits of the bargain struck in ANCSA and should not now be allowed
to alter its terms.
ANCSA specifically set forth the area in which Sea Alaska was to
select its land on central portions of Prince of Wales Island. I do not
know why Tlingits and Haida wanted to cut the heart out of this one
island and this island primarily. But concentrate the cutting they did.
The Tlingit and Haida who had been living in these areas for at
least two hundred years (the Kaigani Haida arrived on Dall Island from
Canada after the America Revolution partly to trade with sea otter
traders and within 30 years just about exterminated all the sea otter
in southeast Alaska) well knew how much timber was on that land and
accepted the selection areas specified in ANCSA. Byron Mallot himself
was an aide to Senator Stevens around that era. So there was no
fraudulent concealment which could serve as a grounds for breaking this
deal.
The need to extinguish the protective covenant established in
section (h)(1) of ANCSA sought in Section 18 of S 881 is specious and
bad precedent for the rest of Alaska. The resources are already
protected under Federal law and indeed the Natives were able to
cooperative with the excavation of the 9,200-year old human being found
in a cave on the northern end of Prince of Wales Island near Pt Baker,
even though the connection to living Tlingits has not been established
scientifically. Far from being motivated by a desire to protect their
cultural heritage, Sealaska is using this grounds as ploy at best to
obtain the best fishing and anchorage sites in Alaska perhaps to
further efforts to establish tourist lodges or stopovers for the many
cruise ships that ply the waters of Alaska. An alternative use would be
large land sales for recreational usage now prohibited on national
forest lands. The loss of public benefits will at any rate far outstrip
any gains in protection of Native cultural sites which are already
protected. The balance tips in leaving the lands in public ownership.
ANCSA was embraced and endorsed by almost all of Alaska's Natives.
It is not fair 36 years later to claim this deal was not fair, because
over those years Congress has made numerous corrections to adjust small
problems. But this bill is not just a small adjustment. It is breaking
the deal reached in ANCSA and can be seen as nothing but a bald-faced
land grab.
FIRST WAVE OF CLEAR-CUTTING BY SEALASKA
Under the leadership of Bryon Mallot, Sealaska and/or eleven Native
village corporations clear-cut vast swaths of mountains to generate the
revenue for the ``renewal'' of Alaskan Natives. The great majority of
cuts, even for those villages like Angoon and Kluckwan which are over a
hundred miles away, were on the Prince of Wales Archipelago.
Under ANCSA each tiny village gained titled to 23,040 acres, more
than a quarter of a million acres. Most of this has been clear-cut.
Sealaska, which represented the people in the same tiny villages, got
an amount which I am sure others at this hearing will represent
accurately-a very large amount.
The cost of this renewal was steep for the environment.
About 12 years ago, I flew over the gargantuan clear-cut made by
the Gold Belt Village Corporation, on Admiralty Island.
I was aghast. Because although I had logged myself for a short time
and flown extensively over the Tongass and spent decades plying the
waters, nothing came close to this clear-cut I saw.
It runs from near the top of a glacial carved valley on one
mountain down to the creek and high up the side of another mountain.
I wondered at the time if greed knows no shame. This cut is far
worse than anything I had seen done and many times larger than 1,000
acres. It would not have been tolerated even before the NFMA passed.
As far as I know, that was the only clear-cut done by Natives on
Admiralty.
On Prince of Wales Island, the same sort of mega-clear-cutting
occurred many times over, I ran my boat past the huge clear-cuts of the
Kassan Village Corporation off east central Prince of Wales. With major
disgust, I saw from the air, water, or road the steep sloped cuts of
the Village Corporations of Craig, Klawock, Angoon, and Kluckwan, all
on the Prince of Wales Archipelago.
I have yet to see and do not look forward to seeing the massive
cutting in Chomley Sound on the east side of Prince of Wales.
Even though the majority of Native villages and Sealaska all
concentrated their cuts on Prince of Wales Island, this was the deal
made in ANCSA.
Sealaska was to make all its cuts in the middle section of Prince
of Wales Island and nowhere else on the island-certainly not on the
north end.
Now the line created by the 36-year-old law that kept Sealaska from
expanding past its allocation area has been crossed by this appeal to
Congress to grant one more special interest a turn at the barrel of
pork.
Whatever judgment I make of how deplorable it was to cut almost all
the trees on the 24,000-acre allotments of the eleven Native villages,
many times from the tops of mountains almost down to the shore of the
sea-I must acknowledge that Byron had the heavy weight and fiduciary
duty of a corporate executive to generate revenue during the first
decade of his corporation's existence. Byron Mallot created success
financially.
He generated lots of revenue during the first wave of cutting
between the 1970s and 1990s. Sealaska then also diversified into other
ventures outside of the state, including casinos in Southern California
and one planned North of San Francisco. It was becoming a mature
corporation.
Even if Sealaska were to falter, let us not forget what the Alaska
Native Federation wanted out of this lands claim was to get away from
dependency on the government. That goal was clearly articulated by its
lawyers who testified before Congress and is reflected in the statement
by their lawyers to Congress long ago.
They wanted a ``bold and imaginative approach which fully and
finally resolves all claims.'' See Page 4 of the Paul Weiss memo to
Congress. See the document at: http://www.sealaskaheritage.org/
collection/Curry_W/afn_letter.htm and attached.
Finality
If only if Sealaska would now honor the pledges its leaders made in
1971 to make a final settlement, this bill would not be before
Congress.
SECOND WAVE OF CLEAR-CUTTING MORE DEPLORABLE THAN THE FIRST
SEALASKA WANTS TO BREAK THE DEAL IN ANCSA 36 YEARS AFTERWARDS
To come back to Congress crying that the deal Sealaska made 36
years ago was not fair is absurd.
It's like saying the Strip in Las Vegas and all the casinos on it
should move to New York, because Bugsy Segal didn't know what he was
doing in the 1940s.
Breaking the deal 36 years later is not only absurd, it is also
unfair.
Prior to ANCSA, the Federal Government paid Sealaska for all the
timber taken by the creation of the Tongass National Forest. See
Tlingit and Haida Indians of Alaska v US 177 F Supp 452 (1959).
Then after ANCSA in 1971, Sealaska and/or its constituent villages
cut the same timber .
That's double-dipping. First they got paid for the taking of timber
in the entire Tongass National Forest and next they got some land to
cut timber that had not been cut.
ANCSA requires Sealaska to select their land from the area marked
out on central Prince of Wales Island, and only in that area. ANCSA is
clear on this issue. Only Congress can change this scheme and Congress
should not change it.
Sealaska has two choices. If they do not want to further soil the
nest of the villages of Kassan and Craig and Hydaburg and Klawock, all
on central Prince of Wales, they could turn their uncut land into a
recreational area or a subsistence hunting area. Alternatively, they
could cut all their remaining land within their designated area.
In neither case should they be allowed to select any land at all on
the northern end of Prince of Wales Island. I believe the attached
pictures from Google Earth will make abundantly clear how much land has
been cut on northern Prince of Wales-about 50% of marketable timber.
By the way, Sealaska ships almost all its timber to Asia without
hiring American workers to process it further. Federal law does not
allow the same to occur in the Tongass National Forest. This is another
reason American taxpayers are going to be shortchanged by this bill.
northern prince of wales island should not be transferred
Long ago as a young man, I sat on the banks of the great Chilkoot
River listening to Chief Donowack, Austin Hammond. Austin was telling
me how his people were buried in the caves above us, which was the
traditional place for catching and preparing sockeye salmon for the
winter.
We sat on a great rock. It was here, he told me, that long ago, one
of his successors made two disputing heads of clan houses sit on this
rock until they could resolve the conflict.
If the dispute could not be resolved, one of the clans could mock
the other party by carving a totem for, say, not honoring a bargain.
Austin then told me that his people came north from what is today
Sumner Strait, the northern border of Prince of Wales Island, because
of a dispute with a tribe from the south of Prince of Wales. It would
be great if Congress could sit on a rock now and then, but I am afraid
that it is time to create a virtual totem, one that shows that
Sealaska's leadership abandoned the teachings of the elders who always
told them to honor the land and its creatures.
I am afraid Byron and his fellow leaders, in their sincere quest to
follow the ways of the five chiefs of Yakutat, and renew the people,
have allowed greed to harm the wildlife that inhabited the forests and
for millennia sustained the people.
About a decade ago, Byron gave two huge trees from Sealaska's
holdings to a group of Hawaiians who carved them into a catamaran,
which they used to renew the hopes of many Native peoples from San
Diego to the shores of the Chilkoot and all the way over to Japan.
Byron was sitting in the catamaran when, it was reported, he cried
out in a loud voice, ``These trees are alive.'' Quite an epiphany.
If Byron also acknowledged that the Eagle, Raven, Wolf, and Bear-
the names of the clans and moieties of the Tlingit and Haida-actually
need to survive on the north end of Prince of Wales Island in large
tracts of old-growth forest, he would not be asking to log the small
remaining stands of oldgrowth forest left that are necessary to sustain
these creatures.
I hope Byron and the other elders of Sealaska, for alas now we are
elders too, will leave the land on northern Prince of Wales Island
alone for all the generations yet to be born. Let them experience, as I
have over the decades, their wonders. Let us fish there for steelhead
together.
When Vancouver first passed Salmon Bay on the east side of northern
Prince of Wales, Natives came out in canoes throwing white feathers of
peace into the air. When he entered Port Protection on the western
side, more canoes came out and welcomed him.
Congress voted in 1990 to protect both parts of Salmon Bay on the
east and the western slope of Mount Calder on the west. These two
areas, the parts of them not logged at least, are like the guardian
totems at the mouth of the long house that welcome both the clan and
visitors alike. What an irony it would be to maintain the entrance but
soil the interior of northern Prince of Wales Island.
On the Board of Directors of the Salmon Bay Protective Association
with me was Edward Churchill, a chief of the Stikine clan of Tlingits,
the clan which by tradition had rights to the northeast of Prince of
Wales Island.
During a year and a half on the board with him, I got to know why
Ed wanted to save Salmon Bay. He wanted to hunt at Salmon Bay for the
rest of his days. This place held a spiritual significance to him. The
act of hunting was walking in the footsteps of his ancestors who had
also hunted and fished there. It was equally important for him to be
there as it is for me to worship in a temple. In both places, we
experience much more than we are. This bill would authorize Sealaska to
desecrate the sacred forests Ed loved.
Unfortunately, Congress, when it drew its map of Salmon Bay, let
the logging companies into the upper reaches where the big timber was.
Only two thirds of the watershed was preserved by Congress, mostly the
muskeg parts that did not have commercial trees.
And so Ed left this earth disappointed that the land his people
wanted to hunt in, the land he wanted undisturbed for his great-
grandchildren, was taken for commercial logging. This was despite my
best efforts to keep his subsistence hopes alive.
I know the sadness Ed must have felt when the logging companies
succeeded in entering into Salmon Bay. I too have hunted there, climbed
its mountains, and gazed down, with dismay, at the land I first saw as
wilderness from a sea plane, now clear-cuts stretching all the way to
the west to Mount Calder.
But now there is an opportunity to change.
Byron Mallot has the power to make that change.
Can Byron Mallot at the Sealaska headquarters, whose offices have
the relics of his people, totem poles and masks, displayed prominently-
can Byron tell Congress that the Stikine clan and all the other non-
Natives in southeast Alaska should not have what Ed wanted?
Can Byron tell Congress-in good conscience-that between the
majestic Salmon Bay on the east and Mount Calder on the west, he wants
the descendants of Ed to walk on the northern shores of Prince of Wales
where the deer do not have enough food to eat and the wolf is near
extinction and the bear hard to find and the eagle not in the sky and
the goshawks extinguised?
These animals are carved on the totems of the Tlingit and Haida.
The elders' creation of the great totems now in the Museum of Natural
History and the Peabody was undertaken with a deep regard for the
living creatures who dwelled in the forest. And that value for the life
of those creatures was part of a great legacy they transmitted in their
wall murals, masks, and totem poles.
Sealaska's logging of this area will throw mud on their great
totems.
If Byron can answer that he still wants this area, then the five
chiefs of Yakutat, I believe, will abandon him-and Austin and Ed and I,
in my turn, will turn our backs to him too.
It is time for Byron to sit on the rock near the Chilkoot and talk.
It is time once and for all to allow northern Prince of Wales to
recover from the rapacious over-logging that devoured it between 1975
and 1995.
Leaving the ancestral home of the Stikine and Kuiu Tlingit alone
would be a final step in the spiritual restoration of the Tlingit to
the proud tradition their ancestors left for them, a comeback to which
Byron Mallot has dedicated his life.
______
Statement of the Alaska Professional Hunters Association, on S. 881
Mr. Chairman: The Alaska Professional Hunters Association (APHA)
submits the following statement regarding S. 881, the ``Southeast
Alaska Native Land Entitlement Finalization Act.'' APHA supports
amending the legislation to ensure that access for hunting and current
hunting guiding permits are not encumbered.
The bill would enable Sealaska Corporation to select and take title
to substantial additional acreage in Southeast Alaska, now held as
public lands as part of the Tongass National Forest, for private
economic development and cultural site preservation. It would also
authorize the Corporation to acquire these now public lands outside of
the 10 village withdrawal land selection areas established nearly three
decades ago pursuant to the Alaska Native Claims Settlement Act. The
measure does not prescribe precisely which lands may be transferred
from public to private ownership nor does it make clear the aggregate
amount of acreage to be transferred.
Throughout Tongass many APHA members hold special use permits to
provide guided hunting and other recreational services to the public on
these public lands. If guides are forced off of lands converted to
private ownership, there are insufficient alternative lands available
to accommodate these long established operations. Many existing guides
operate in areas providing high quality hunting, and substitute areas
of comparable quality simply do not exist to handle displaced guides.
APHA is strongly opposed to any legislation which would force guides
out of their permitted areas.
APHA is persuaded, however, that the bill can be amended to treat
special use permits as valid existing rights that must be honored by
Sealaska Corporation or its successors or assigns. We appreciate that
the language in section 5(d) is a good faith effort to address this
concern. Unfortunately, the language does not provide sufficient
protection for existing permittees. It would protect existing permits
for only the remaining term of that permit and provides no assurance
that such permits can, or will be, renewed or extended. Since most of
these permits carry only five or 10 year terms, the absence of any
guarantees regarding extension or renewal ensures that any impacted
guides will be out of business in a relatively short period of time.
That is unacceptable.
Additionally, APHA seeks language that Sealaska could not authorize
new or additional guide operations on lands already subject to an
existing operation. The effects of additional pressure in an area could
destroy the efficacy of the present guide service. Consequently, the
bill needs to include language ensuring that lands transferred to
Sealaska's private ownership include limitations on the ability of the
Corporation to impose fees, restrict access or otherwise regulate the
operator/permittee. Such language would genuinely ensure the protection
of existing valid existing rights for more than a short time period.
APHA is prepared to work with the bill's sponsors and the Committee
to craft appropriate protective provisions for existing guide
operations that might be impacted by the land transfers authorized by
this bill. Absent such provisions, APHA would be compelled to oppose
the measure. Thank you.
______
Audubon Alaska,
Anchorage, AK, October 8, 2009.
Hon. Ron Wyden,
Chairman, Subcommittee on Public Lands and Forests, Committee on Energy
and Natural Resources, U.S. Senate, 223 Dirksen Senate Office
Building, Washington, DC.
Dear Senator Wyden: The purpose of this letter is to comment on the
``Southeast Alaska Native Land Entitlement Finalization Act'' (S. 881)
proposed on behalf of Sealaska Corporation. Audubon Alaska urges that
action by the Subcommittee on Public Lands and Forests on this measure
be deferred.
Audubon Alaska fully supports Sealaska Corporation's right to
select its remaining land entitlement consistent with the Alaska Native
Claims Settlement Act (ANCSA). Provisions in S. 881 would, however,
greatly expand the boundaries of the areas from which Sealaska could
select land and would result in significant conflicts with other
important Tongass National Forest values and uses. Before enactment of
S. 881, or another measure that would modify the ANCSA selection area
boundaries, these conflicts should be reconciled.
Some of the lands that Sealaska proposes to select in S. 881, which
are outside of its current withdrawal area, are located within
watersheds that have extremely important fishery and wildlife habitat
values that could be substantially compromised by the intensive logging
practices permitted on privately owned lands. In addition, the proposed
legislation includes the transfer of dozens of small parcels scattered
throughout the region with little or no restriction on how they could
be used or developed. These additional land transfers could potentially
compromise the ecological integrity of many areas of the forest, as
well as result in a variety of user conflicts.
It should be noted that an alternative legislative proposal pending
before Congress (S. 1738/H.R. 3692 ``The National Forest Roadless Area
Conservation Act of 2009'') would provide permanent conservation
protection for some of the same lands that Sealaska proposes to select
for logging and/or other development.
Audubon Alaska again recognizes and respects the importance of
addressing Sealaska's unsatisfied land entitlement. Changes to the
ANCSA selection boundaries as proposed by Sealaska, however, should be
deferred until such time as the modified selection process can be
reconciled with other important public interests including fish and
wildlife conservation and recreational uses of the Tongass National
Forest.
Sincerely,
John W. Schoen,
Interim Executive Director and Senior Scientist.
Eric F. Myers,
Senior Policy Representative.
______
Statement of Tim Towarak, President, Bering Straits Native Corporation,
on S. 522
Chairman Wyden and Members of the Subcommittee on Public Lands and
Forests, for the record I am Tim Towarak, President of the Bering
Straits Native Corporation (BSNC), a regional Alaska Native corporation
authorized by the Alaska Native Claims Settlement Act (ANCSA). Thank
you for taking up S. 522 and considering it today. This bill would
resolve several outstanding land issues involving our Native
corporation's land entitlement under ANCSA, as well as several
involving the State of Alaska (State) by ratifying an agreement between
the United States, the State, and BSNC.
As a regional Native Corporation, BSNC received entitlement to
145,728 acres of land under Section 14(h)(8) under ANCSA. The bill S.
522 will fulfill a critical component of that entitlement by conveying
1,009 acres in the Salmon Lake area, 6,132 acres of land at Windy Cove
and 7,504 acres of land at Imuruk Basin to BSNC. The bill would also
convey 3,084 acres in the Salmon Lake area to the State of Alaska. BSNC
will relinquish 3,084 acres of land from its original Salmon Lake
selection. Passage of the bill would avoid further costly and
counterproductive administrative appeals or litigation and is a
sensible, fair and amicable resolution to some difficult land issues
that have faced the parties for many years caused in part by the
competing land selections of the State and BSNC.
Two important purposes would be served by Congressional approval,
through S. 522, of the Salmon Lake Land Ownership Consolidation
Agreement. The first is that it will allow BLM to finalize the
conveyance of Native lands within the Bering Straits region using the
mechanism of direct negotiation afforded by the Alaska Lands Transfer
Acceleration Act. Should Congress approve S. 522, such action will be
consistent with ANCSA and it will also highlight the importance of
cooperatively resolving potentially litigious disputes over competing
land selections by the State of Alaska, the Native Corporations and the
United States. The second purpose served is the transfer of lands to
those whose history and culture are deeply rooted there and whose
dependence on those lands for subsistence and identity continue to this
day.
By way of background, our Native region encompasses a large
geographic region around Nome, Alaska, Norton Sound, and the Bering
Straits, which is located between the United States and Russia. Maps
and other detailed information relevant to the legislation is contained
in a Briefing Booklet, entitled, ``Salmon Lake Area Land Ownership and
Consolidation Agreement,'' provided to the Subcommittee previously.
Our region historically is icebound for seven months of the year.
What few local roads that have been built over time are not connected
to the state highway system whose closest point is approximately 400
miles away. In the summer, rivers and the ocean are prime means of
transport for the people of our villages. In the winter, once these
water bodies are frozen, they become transportation links for people to
travel to various villages in the region by snowmachine or dogsled.
Travel to the larger cities in the state requires travel by air.
The BSNC region is an area typified by rolling tundra, alpine
tundra, and mountain ranges, as well as small spruce forests at its
eastern limit. Reaching toward eastern Eurasia, the Seward Peninsula is
the westernmost extension of the North American continent. Residents of
the region have lived off the land for millennia, and while the modern
era has brought significant change to this way of life, the lands are
still the basis for BSNC's shareholders identity as they continue to
use the lands for subsistence purposes as well as for recreation. It is
the importance of these lands, both in the past and for the future,
that guided BSNC in its original ANCSA land selections during the
1970's.
BSNC, established as the regional Native Corporation for the
communities of the Seward Peninsula, Bering Strait, and Norton Sound,
is seeking to finalize all land entitlements granted through ANCSA. The
process of land selection, prioritization, adjudication by BLM, and
finally, the transfer of land to the Alaska Native Corporations has
taken over 30 years. This process is still ongoing, though the 2004
Alaska Lands Transfer Acceleration Act (P.L. 108-452) reported to the
Senate by your Committee provided the impetus and tools for resolving
regulatory bottlenecks in ANCSA and expediting transfers to the State
of Alaska and Alaska Native Corporations.
The history of BSNC's ANCSA 14(h)(8) selection of Salmon Lake began
in 1977 when BSNC filed selection number F-33819. In 1997, BLM
determined that the application would be rejected because the lands
were not withdrawn under Section 11(a)(1) of ANCSA. BSNC appealed this
decision to the Interior Board of Land Appeals, and the decision was
remanded back to BLM. By this point in time, BSNC had already spent
well over $100,000 in legal fees related to the Salmon Lake appeal.
Additional 14(h)(8) selections at Windy Cove (F-33833) and Imuruk Basin
(F-33834) were to be similarly adjudicated and further appeals could
need to be pursued resulting in additional legal and litigation costs.
In short, there was an acute need for a resolution to be negotiated
that would deal with the respective interests of all parties equitably.
With the passage by Congress of The Alaska Land Transfer
Acceleration Act (P.L. 108-452) in 2004, the mechanisms for negotiating
land selection conflicts were streamlined. The Act also provided the
opportunity for Native corporations to negotiate directly with the BLM
for final settlement. As a result of a pending decision on these land
issues by the BLM, BSNC requested that BLM withhold the final decision
for F-33819 until such time as BSNC could meet with BLM and the State
to discuss the possibility of resolving the conflict.
In 2004, representatives from BSNC, BLM, and the State met to
discuss the possibility of resolving the issues through a negotiated
settlement. Over the course of the next three years the parties met on
an annual or semi-annual basis and were eventually able to reach an
agreement that served all of their interests. Through the agreement,
titled the ``Salmon Lake Area Land Ownership Consolidation Agreement,''
the State and BSNC each receive a portion of Salmon Lake. The lands
BSNC would receive are contiguous with and adjacent to lands previously
conveyed to the Native corporation. Likewise, the lands the State would
receive are immediately adjacent to other State-selected lands. Access
to State waters and other public lands has been assured through the
reservation of public easements over the lands to be conveyed. All
lands granted to the parties through the Agreement will be counted
against their remaining entitlements. Regarding the lands BSNC would
receive, the total acreage subsumed under the Agreement would be
subtracted from BSNC's remaining ANCSA 14(h)(8) entitlement. For the
State of Alaska the lands would be counted against the State's
entitlement under 6(a) of the Alaska Statehood Act.
BSNC and its member villages are positioned to be the first region
in the State to receive all of the land entitlements allocated by
ANCSA. However, without the Salmon Lake Land Selection Resolution Act,
the achievement would be delayed further. BSNC seeks to avoid further
delays caused by litigation and/or the need for reselection of 14(h)(8)
lands. This Agreement forged between the parties is not a land exchange
nor does it modify or waive any section or regulatory mandate of the
ANCSA.
Salmon Lake is one of the westernmost red (sockeye) salmon spawning
lakes in North America. The lake is surrounded by a landscape of
glacial moraines which contain evidence of use that spans countless
generations. At the east of the lake is a small, ancient settlement of
two or three house pits while along the shore near the center of the
lake is an old village site of perhaps twenty semi-subterranean houses
remains. Old burial sites are located between the Nome-Taylor road and
the lakeshore, and stretched along Fox Creek, which empties into the
lake on its north shore, is a caribou drive line and stone tents rings
and shooting blinds left by hunters over two centuries ago.
Today, residents of the region and BSNC shareholders visit the lake
for the same reasons our ancestors did. The rich salmon resource is
harvested along the Pilgrim River, just below the eastern outlet to the
lake.\1\ Caribou returned to the Seward Peninsula in 1996 after a
hiatus of well over 100 years,\2\ and the people have camps near the
lake that they use to access the herd when it crosses or is near the
Nome-Taylor road. Clearly this area has been and remains important to
our shareholders as a place for securing subsistence resources and will
continue to be an important place in the history and lives of the
people of the region.
---------------------------------------------------------------------------
\1\ BSNC has worked cooperatively for years with Alaska Department
of Fish and Game and Norton Sound Economic Development Corporation to
allow access across BSNC lands to the east of the lake for the purposes
of salmon studies and enhancement programs in the Pilgrim River/Salmon
Lake drainage.
\2\ The Seward Peninsula caribou herd disappeared between 1850 and
1970, causing a significant shift in land use and settlement for the
Native residents of region.
---------------------------------------------------------------------------
The other lands subject to this Agreement lie on the north and
south shores of Imuruk Basin. Windy Cove lies at the base of the north
flank of the Kigluaik Mountains. It is in this mountain range where an
ancestor to our shareholders encountered a giant eagle that taught him
the songs, dances, and ceremonies that have come to be known throughout
the region as the Eagle-Wolf messenger feast. In the past this ceremony
brought villages together to trade, feast, and perform the necessary
rituals that ensured the return of the spirits of the animals they
hunted to insure a balance was maintained between the human and animal
worlds.
The lands called the Imuruk Basin lands in the Agreement encompass
the delta of the Agiapuk River on the north shore of Imuruk Basin. This
area contains old camps and village sites, some dating back 2000 years.
One village on the Agiapuk River was virtually wiped out by the 1918
influenza epidemic, a tragedy that nearly halved the Native population
of the region stretching from Unalakleet to Shishmaref because
indigenous people living there did not have immune systems that could
deal with such diseases from outside of their world.
The Imuruk Basin lands are essential resource procurement/
subsistence use areas to this day. Salmon are harvested as they return
to the Agiapuk River, moose are taken for winter supplies on the lands,
and the area swarms with waterfowl in the spring and fall of every
year. Situated between the lands of the villages of Mary's Igloo,
Teller, and Brevig Mission, this land is of central importance for the
continuation of our peoples' culture, history, and ongoing subsistence
lifestyle.
The people of the Bering Straits region will be deeply grateful to
this Subcommittee and to the Congress for ratifying the Salmon Lake
Area Land Ownership and Consolidation agreement thereby sensibly
resolving some of the critical remaining lands issues in our region.
Thank you for this opportunity to provide the Subcommittee with our
views on this important piece of legislation.
______
Statement of the Confederated Tribes of Coos, Lower Umpqua and Siuslaw
Indians, on S. 1272
The Confederated Tribes of Coos, Lower Umpqua and Siuslaw Indians
(referred to here as ``the Tribe'') provides this testimony for the
October 8, 2009 legislative hearing of the Subcommittee on Public Lands
and Forests Hearing on S.1272 (Wyden and Merkley).
The Tribe is pleased that it is able to offer testimony in its
capacity as a federally recognized Indian tribe. Exactly 25 years ago,
almost to the day, on October 17, 1984, through the enactment of Public
Law 98-482, the United States Congress took definitive action to
restore the Tribe to its rightful place as a sovereign government. By
doing so, Congress repudiated the ``termination era'' that reached its
peak in the 1950's and that resulted in the severing of the federal
government's political relationship with our Tribe and dozens of other
Indian tribal governments. Public Law 98-482 (1984) restored the
Tribe's government-to-government relationship with the United States.
In 1984 there was also an effort to secure a federal wilderness
protection for this area. Despite tireless efforts, this proposal was
not included final version of the Oregon Wilderness Act of 1984, Public
Law 98-328 (1984). The case for such protection has grown only more
compelling since then. Accordingly, the Tribe supports the efforts of
Oregon's Congressional delegation to provide statutory wilderness
designation through S. 1272 and its companion bill in the House, H.R.
2888. This legislation will accord these forest lands with the highest
level of protection available under federal law. But we also take this
opportunity to ask for consideration and fairness in addressing an
injustice of error or omission that has deprived our Tribe of any
portion of our ancestral forest for more than 150 years.
The Tribe certainly shares the widely-held sentiment that the
Wasson Creek and Franklin Creek watershed area satisfies the applicable
Wilderness Act requirements and standards. Most notably, these lands
provide outstanding opportunities for solitude and primitive and
unconfined forms of recreation. The Tribe has an innate connection to
these lands because this is the forest that substantiated the Tribe's
ancestors for thousands of years before European colonists arrived. The
proposed Devils Staircase Wilderness Area is in the Ancestral Territory
of the Confederated Tribes of Coos, Lower Umpqua and Siuslaw Indians,
in particular the Lower Umpqua Tribe. Lower Umpqua Tribal Elders
recall, as children, hearing from their Elders of hunting parties and
camps in the mountains between the Umpqua and Siuslaw Rivers. Both
Golden Ridge--which is in the proposed wilderness area--and the ridge
to the southeast included hunting, resource gathering, and spiritual
sites associated with the Lower Umpqua village of Ts'alila located
along the river near Scottsburg.
For these reasons, the Tribe's greatest aspiration today is to
secure a forest land base that reflects our unique inter-Tribal union
of three distinct, but now confederated tribes. It would be a
disservice to our Tribal ancestors if we falter in our effort to
reclaim a small fraction of our Tribal heritage and patrimony. We have
worked exhaustively to develop our forest restoration proposals within
the complex and sometimes acrimonious northwest forest policy arena.
Our message is as simple as is our goal. We ask only that the
various interests--private, public, governmental, and non-governmental
participants in this process--commit to work with the Tribe in good
faith to help us achieve our goal of regaining a meaningful and
manageable Tribal forest land base. We trust that each of the entities
that are working to establish the Devil's Staircase Wilderness will
recognize that the righteousness our forest restoration cause is
incontestable. And all we ask from the other participants in this
process is fairness. For our part, the Tribe commits to continue to
work--as we have for the past decade and more--as diligently as
possible with the various interests and stakeholders to address any
questions and resolve any issues that may arise in crafting a Tribal
forest restoration proposal. It is quite possible that our Tribal
forest restoration objective can be accomplished on a land base that is
smaller than the amount of land covered by this legislation, possibly
even an amount of land that is equal to half amount of the amount of
land covered by the proposed wilderness designation--and obviously
involving different acreage entirely.
Since re-gaining recognition in 1984, the Tribe has worked
persistently to secure legislation to restore a small fraction of our
ancestral lands. For the Congress to designate some of our ancestral
lands as wilderness, as in S. 1272 and its companion bill in the House,
H.R. 2888, is not inherently inconsistent with the Tribal vision for
this area as described in the various iterations of our Tribal forest
restoration proposal. Indeed, some of our Tribal forest restoration
proposals would have imposed wilderness-like restrictions on some of
the very same lands that are covered by this legislation. For example,
in these proposals the Tribe proposed to thin stunted stands to
accelerate the development of late-successional forests, then leave
these stands to nature's management in perpetuity with the exception of
the gathering of traditional plant materials for cultural uses. One
recent iteration of the Tribe's proposal from June 2006 included
approximately 6,000 acres of the proposed wilderness area (centered
around Otter Creek) now managed by the U.S. Forest Service.
The Tribe has no interest in impeding the effort to secure
wilderness status for some of our ancestral homelands as proposed by S.
1272 and its companion bill in the House, H.R. 2888. While once
seemingly endless, however, federal forest land is increasingly
becoming a finite and scarce resource. Designation of any federal land
as wilderness in the Ancestral Territory of the Confederated Tribes of
Coos, Lower Umpqua and Siuslaw Indians effectively removes that acreage
from the dwindling amount of federal lands that are available for
restoration to our Tribe. The
Tribe is mindful that wilderness designation via the proposed
legislation could heighten the competition over sometimes-conflicting
resource priorities on the remaining lands retained by the federal
government, thereby making our future task even more difficult after
this bill's enactment.
In the recent past, the Congress has ensured that land restoration
efforts of other tribes are not placed at such a disadvantage by
legislation establishing national parks or monuments or similar
designations. For example, the Timbisha Shoshone Tribe faced this
concern when Congress enacted the California Desert Protection Act,
Public law 100-433. Congress address this by including a provision in
that law, Section 705, that directed the Secretary of Interior to
identify an area within this relatively small tribe's aboriginal
homeland that would be suitable for a reservation. Congress
subsequently transferred approximately 8,000 acres of federal land to
the Timbisha Shoshone Tribe and provided for the additional acquisition
of more than 2,000 acres of fee (privately owned) lands to this newly-
established reservation. Timbisha Shoshone Homeland Act, Public Law
106-423. Timbisha Shoshone was recognized at about the same time that
our Tribe was re-recognized. As the legislative history for the
Homeland Act notes: ``Authorities available [to federal land management
agencies] . . . under existing law, such as to grant special use
permits or enter into a memorandum of understanding, cannot provide the
permanence, security, and economic opportunity that a trust land base
affords a Tribe.'' This is exactly why our Tribal forest restoration
effort has included two components. First, as described above, a
suitable forest land base that reflects our inter-Tribal union. And
secondly, trust status protection for the relatively small but
culturally significant sites located on federal lands, most notably
these are the following Bureau of Land Management tracts: Takimiya
(Umpqua Eden) (128 acres) and the Coos Head tract (60 acres).
In closing, the Tribe greatly appreciates the opportunity to
participate in this discussion of how to protect the Devil's Staircase
in our government-to-government capacity. The injustice of error or
omission that has deprived our Tribe of any portion of our forest for
more than 150 years must be remedied. We simply want to ensure that the
next seven generations of our membership will have the opportunity to
achieve the permanence, security, and opportunity afforded by creation
of a Tribal forest and the protection of our special sites. The
Confederated Tribes of Coos, Lower Umpqua and Siuslaw Indians is
committed to achieving this vision in a way that does not impede the
efforts of others to assure that the next seven generations of
Americans, of both Native and non-Native ancestry, will be able to
appreciate the proposed Devil's Staircase Wilderness, as we and our
Ancestors have for thousands of years.
Thank you.
______
Statement of the Alaska Professional Hunters Association, on S. 881
Mr. Chairman: The Alaska Professional Hunters Association (APHA)
submits the following statement regarding S. 881, the ``Southeast
Alaska Native Land Entitlement Finalization Act.'' APHA supports
amending the legislation to ensure that access for hunting and current
hunting guiding permits are not encumbered.
The bill would enable Sealaska Corporation to select and take title
to substantial additional acreage in Southeast Alaska, now held as
public lands as part of the Tongass National Forest, for private
economic development and cultural site preservation. It would also
authorize the Corporation to acquire these now public lands outside of
the 10 village withdrawal land selection areas established nearly three
decades ago pursuant to the Alaska Native Claims Settlement Act. The
measure does not prescribe precisely which lands may be transferred
from public to private ownership nor does it make clear the aggregate
amount of acreage to be transferred.
Throughout Tongass many APHA members hold special use permits to
provide guided hunting and other recreational services to the public on
these public lands. If guides are forced off of lands converted to
private ownership, there are insufficient alternative lands available
to accommodate these long established operations. Many existing guides
operate in areas providing high quality hunting, and substitute areas
of comparable quality simply do not exist to handle displaced guides.
APHA is strongly opposed to any legislation which would force guides
out of their permitted areas.
APHA is persuaded, however, that the bill can be amended to treat
special use permits as valid existing rights that must be honored by
Sealaska Corporation or its successors or assigns. We appreciate that
the language in section 5(d) is a good faith effort to address this
concern. Unfortunately, the language does not provide sufficient
protection for existing permittees. It would protect existing permits
for only the remaining term of that permit and provides no assurance
that such permits can, or will be, renewed or extended. Since most of
these permits carry only five or 10 year terms, the absence of any
guarantees regarding extension or renewal ensures that any impacted
guides will be out of business in a relatively short period of time.
That is unacceptable.
Additionally, APHA seeks language that Sealaska could not authorize
new or additional guide operations on lands already subject to an
existing operation. The effects of additional pressure in an area could
destroy the efficacy of the present guide service. Consequently, the
bill needs to include language ensuring that lands transferred to
Sealaska's private ownership include limitations on the ability of the
Corporation to impose fees, restrict access or otherwise regulate the
operator/permittee. Such language would genuinely ensure the protection
of existing valid existing rights for more than a short time period.
APHA is prepared to work with the bill's sponsors and the Committee
to craft appropriate protective provisions for existing guide
operations that might be impacted by the land transfers authorized by
this bill. Absent such provisions, APHA would be compelled to oppose
the measure. Thank you.
______
Statement of the Coalition of National Park Service Retirees, on S. 881
The Coalition of National Park Service Retirees (CNPSR) is a non-
profit National Park advocacy organization comprised of nearly 750
former National Park Service employees who, collectively, have served
almost 20,000 years within the agency in every capacity and at all
grades, including former Directors and Deputy Directors, former
regional Directors or Deputy Regional Directors, former Associate or
Assistant Directors at the national or regional office level, former
Division Chiefs at the national or regional office level, and former
Superintendents or Assistant Superintendents. In our personal lives, we
come from the broad spectrum of political affiliations. As park
managers, rangers and employees in the National Park Service's many
disciplines, however, we devoted our professional lives to a common
goal--maintaining and protecting our national parks for the benefit of
all Americans, both living and those yet to be born. We remain
committed to that goal.
Our organization is pleased to provide testimony for the written
record on S.881, Southeast Alaska Native Land Entitlement Finalization
Act to be heard before the Subcommittee on Public Lands & Forests of
the United States Senate. Our primary interest lies in one narrow
segment of the bill that speaks to Glacier Bay National Park and
Preserve. In general CNPSR supports the language found in Section
3(b)(2)(B)(ii) and Section 4(c)(1) which clearly articulates that
Sealaska shall not select or receive any conveyance of land located
within any conservation system unit under this Act.
We do not support the language or intent in Section 2(a)(17)(E) &
Section 3(a)(2)(c) giving specific direction for the development of a
special cooperative agreement between Sealaska and the National Park
Service. We do not agree that more direction is required than what
already exists in law and existing agreements and do not see any
enhancement to the existing protection provided by the National Park
Service in their mission to protect sacred, cultural, and traditional
and historic sites within the park. We remain opposed to all language
in this bill that directs the National Park Service to enter into a
cooperative agreement with Sealaska Corporation because of its obvious
redundancy and potential for conflict with the existing Memorandum of
Understanding with the Hoonah Indian Association, the locally federally
recognized tribe, their traditional territory encompassing the vast
majority of lands within Glacier Bay. The relationship with the Hoonah
Indian Association, predicated on an existing agreement has been very
successful and does not need to be complemented by a second agreement.
We would note the plethora of already existing federal legislation
which requires consultation and cooperation to facilitate traditional
cultural activities of federally recognized tribal governments. We
would suggest that another agreement might even work at cross purposes
to existing law and agreements creating potential conflict and
confusion.
The areas of concern articulated in the bill that a cooperative
agreement with Sealaska would supposedly solve have long been
appropriately and successfully managed with the Hoonah elders and
tribal members including cooperative research partnerships,
presentation of interpretive themes, and integration of traditional
Tlingit knowledge into park planning and management focus since at
least 1995. The success with the Hoonah Indian Association has led to
other similar successful endeavors with other Hoonah entities,
including Hoonah City Schools and the Hoonah Heritage Foundation.
Planning is currently underway for the development of a ``tribal
house'' at Bartlett Cove in Glacier Bay involving all these entities
including the Sealaska Heritage Institute who has also been invited. In
short, it is unnecessary to compel any further cooperative agreement to
encourage partnership between the entities than what already
successfully exists.
Proposed language in the bill (section 3(c)(2)(B)(ii)) regards to
this agreement seems to go further than just cooperating on cultural
aspects giving a broader authority to Sealaska to oversee all ``the
resources within the Park'' and certainly represents an overly
aggressive extension of authority of Sealaska within Glacier Bay.
Indeed, in section 3(c)(2)(B) there is the clear authority for the
``establishment of culturally relevant sites'' implying that
development on these cultural, sacred, traditional and historic sites
would be allowed in obvious contradiction to existing law and the
purposes for which the park was established. CNPSR cannot support these
proposals in any manner.
In addition, we are very concerned about the ``technical
correction'' found in Section 5(e)(2) that exempts Sealaska from
oversight under the National Historic Preservation Act and amends the
Act to say that all native corporation land is now tribal land with
regard to NHPA. This proposal is far from a ``technical correction''
and it is not limited to just lands of interest to Sealaska. This
proposal for all ANCSA corporate lands across Alaska would take away
the protections provided for by the state of Alaska and its State
Historic Preservation Officer (SHPO). Establishing the opportunity for
a for-profit corporation to assume responsibility for protecting
historic and cultural sites when that very same corporation may wish to
develop a site for profit motives creates creating an inherent conflict
of interest and the potential loss of historic or cultural sites in
favor of the profit motive by the very same corporation. CNPSR is
concerned that this significant change could impact millions of acres
of corporate held lands within or adjacent to the boundaries of
existing national park units in Alaska where continued involvement and
oversight of the SHPO is essential to protecting park resources.
As author of this written testimony on behalf of the Coalition of
National Park Retirees it should be noted that I served as the National
Park Service Regional Director for Alaska from 2000 to 2003. Further,
there are at least four previous superintendents of Glacier Bay
National Park and Preserve that are members of this organization whom
are obviously very familiar with the implications this Senate Bill
might have on Glacier Bay and share our concerns.
We appreciate the opportunity to comment on S. 881 and hope our
concerns will be noted.
______
Statement of Jim Stratton, Alaska Regional Director--National Parks
Conservation Association, on S. 881
The National Parks Conservation Association (NPCA) works to
protect, preserve, and enhance America's national parks for present and
future generations. On behalf of NPCA's 325,000 members, and especially
the national parks in Alaska, we appreciate the opportunity to submit
these comments for the record.
As an organization focused solely on national park lands, NPCA
takes no position on the vast majority of the proposed language found
in S.881. Our interest is that small slice of the bill that speaks to
Glacier Bay--principally Section 2 (a)(17)(E), Section 3 (a)(2) and
(b)(2)(B)(ii) and (c), Section 4(c)(1) and Section 5(e)(2).
NPCA supports the language found in Section 3(b)(2)(B)(ii) and
Section 4(c)(1) which makes it very clear that ``Sealaska shall not
select or receive under this Act any conveyance of land .located within
any conservation system unit.'' This bill is very clear that conveyance
of lands within Glacier Bay National Park & Preserve to Sealaska is not
considered or anticipated and we find this language both satisfactory
and comforting.
It is the intent for a cooperative agreement found in Section 2
(a)(17)(E) and the specific direction for such an agreement between
Sealaska and the National Park Service found in Section 3 (a)(2) and
(c) that causes us heartache. In addition, we are very concerned about
the ``technical correction'' found in Section 5(e)(2) that exempts
Sealaska from oversight under the National Historic Preservation Act.
The Organic Act of 1916 charges the National Park Service with
protecting in perpetuity America's natural and cultural treasures.
There is no higher level of protection available for natural or
cultural resources found in the United States than designation as a
unit of the national park system. Our national treasures are held in
trust by the Park Service for all Americans and are both preserved and
interpreted for present and future generations. In reading the proposed
legislation, we fail to see how protection of Glacier Bay's identified
sacred, cultural, traditional and historic sites are enhanced by the
directed Cooperative Agreement found in Section 3(a)(2).
We have expressed our concern about the cooperative agreement
language on numerous occasions to Sealaska and to both Senators
Murkowski and Begich and appreciate the opportunity to share our
concerns with other members of the U. S. Senate at this hearing. NPCA
is opposed to all language in this bill that directs the National Park
Service to enter into a cooperative agreement with Sealaska
Corporation, or any other Village or Urban Corporation. This proposed
directive is redundant because the Park Service already has an existing
cooperative agreement which establishes a solid working partnership for
the park's traditional and cultural resources with the Hoonah Indian
Association, the local federally recognized tribe, whose traditional
territory includes the vast majority of the lands now part of Glacier
Bay National Park.
Furthermore, the Park Service is charged to cooperate with and
facilitate the traditional cultural activities of federally recognized
tribal governments under the provisions of the Native American Graves
Protection and Repatriation Act of 1990, the Alaska National Interest
Lands Conservation Act of 1980, the Archaeological Resource Protection
Act of 1980, the American Indian Religious Freedom Act of 1978, the
Alaska Native Claims Settlement Act of 1971, the President's Federal
Indian Policy signed on January 24, 1983, Executive Order 13007 (Indian
Sacred Sites) and Executive Order 13175 (Consultation and Coordination
with Native American Tribal Governments).
In addition to being redundant, any additional agreements directed
by Congress between the Park Service and Regional or Village
Corporations organized under the Alaska Native Claims Settlement Act,
we fear, would lead to conflict and confusion. The Park Service already
has a solid working relationship, formalized in a Government to
Government relation, with the Hoonah Indian Association in a Memorandum
of Understanding initially signed in 1995 and renewed in both 2000 and
2005.
Specifically, the National Park Service agrees to recognize the
contributions of Hoonah elders and tribal members to the history,
culture and ecology of Glacier Bay and sets forth the relationship for
cooperative activities and partnerships for research, education,
interpretation and integration of traditional Tlingit knowledge into
the park's planning, management and interpretive regimes. These are the
very same areas of concern used to justify the need for an additional
cooperative management agreement with Sealaska. In reality, they are
already being addressed and have formally been so since 1995.
Building on the partnership with the Hoonah Indian Association, the
Park Service has broadened its relationships with other entities in
Hoonah to include the Huna Heritage Foundation (HTC) and Hoonah City
Schools (HCS). Together they have created multiple opportunities to
annually bring tribal youth and elders together at cultural sites in
the park for deep lessons in clan and tribal history. Currently, this
partnership is developing plans to construct a traditional tribal house
at Bartlett Cove that will be the centerpiece of a cultural
preservation program. In addition to being the cornerstone of the
park's cultural interpretation program, the tribal house will also be a
facility where workshops will be held to teach a variety of Tlingit
cultural traditions, such as carving, basket weaving, language, song,
dance and more. The partnership has extended an invitation to Sealaska
Heritage Institute to become a partner in development of this facility
and program. We don't understand how adding additional entities to this
already existing formally recognized relationship improves the current
situation and we remain concerned that it could create conflict between
competing interests.
We are also concerned that the language of the bill could be
interpreted to elevate Sealaska into a full cooperative management
partnership with NPS on ALL park management issues. Language in Section
3 (c)(2)(B)(ii) says that the agreement shall ``ensure that the
resources within the Park are protected and enhanced by cooperative
activities and partnerships among federally recognized Indian Tribes,
Village Corporations and Urban Corporations, Sealaska, and the National
Park Service.'' Our interpretation is that it is NOT limited to just
the cultural sites suggested in the bill's findings in Section 2
(a)(17)(E). The language says ``the resources within the Park,'' which
is a broader authority than merely the resources associated with
indentified cultural sites. This is a significant shift in the role of
any cooperating partner with the National Park Service and one that
NPCA is opposed to.
Furthermore, we are concerned that the specific directive for a
cooperative agreement found in Section 3(c)(2)(B) that provides for the
``establishment of culturally relevant visitor sites'' could be
interpreted as allowing development at these cultural, sacred,
traditional and historic sites--an activity we feel is contrary to the
purpose for which the park was established.
Our final park-related concern with this bill is that the National
Historic Preservation Act (NHPA) is amended to say that all native
corporation land is now tribal land with regard to NHPA. That is NOT a
technical correction and it is not limited to just lands of interest to
Sealaska. This is a change for all ANCSA corporate lands across Alaska
and it takes away the protections provided for by the state of Alaska
and its State Historic Preservation Officer (SHPO). The scenario we
fear is that a for-profit corporation would assume responsibility for
protecting historic and cultural sites when that very same site is
impeding a development opportunity of the very same corporation. With
this change to the NHPA, Native corporations operating logging and
mining operations on their land, for example, would now make their own
determinations about how best to protect cultural sites where logging
and mining is occurring. This is classic fox guarding the henhouse and
we don't find that very comforting. NPCA is concerned about this
significant change because there are millions of acres of corporate
held lands within the boundaries of existing national park units in
Alaska and the continued involvement of the SHPO in all proposed
developments on those lands is necessary to protect the values of
adjacent park resources.
In summary, we feel the existing MOU between the Park Service and
the Hoonah Indian Association already addresses the needs and concerns
set out in the Sealaska Bill for ``Sacred, Cultural, Traditional and
Historic Sites'' that may be found in Glacier Bay National Park &
Preserve. An additional cooperative agreement would be redundant and
could confuse the situation should the Park Service find itself pulled
between contradictory approaches of two different Native Alaska
entities.
Should this bill move forward, we would request that those sections
of S.881 that speak to Glacier Bay National Park & Preserve and the
technical correction relating to the SHPO be dropped from the bill's
language.
______
Statement of Hon. Harry Reid, U.S. Senator From Nevada, on S. 940
Mr. Chairman, thank you for allowing a hearing on this important
legislation.
This bill would direct the Bureau of Land Management to convey
approximately 2,400 acres of land that they currently manage to the
Nevada System of Higher Education. This transfer will allow for
development of three new higher education campuses: one for the College
of Southern Nevada; one for the University of Nevada, Las Vegas; and
one for Great Basin College.
Currently, the Nevada System of Higher Education campuses in
southern Nevada comprise just 1,200 acres. This is one of the smallest
footprints of any major higher education system in the western United
States. In fact, the University of Nevada, Las Vegas has less than half
the land base of comparably enrolled western universities such as the
University of Utah, the University of Colorado, or the University of
California at San Diego. The College of Southern Nevada is similarly
short on space, having been already near capacity at each of its three
campuses before a 15 percent spike in enrollment over the last 3 years.
Further, the small branch campus of Great Basin College in Pahrump,
which currently holds its classes in high school classrooms at night,
has seen a phenomenal 160 percent increase in full-time enrollment this
fall. Each of these institutions of higher education has a pressing
need for space in order to continue to provide the high quality of
education that Nevadans and all Americans expect and deserve.
My legislation provides for conveyance of approximately 40 acres
for the College of Southern Nevada and 285 acres for Great Basin
College. 2,085 acres would also be conveyed for the University of
Nevada, Las Vegas after remediation of a World War II small arms range
on portions of the land. This future north campus for the University of
Nevada, Las Vegas abuts Nellis Air Force Base, and the legislation
contains a provision that requires a binding interlocal agreement
between the Nevada System of Higher Education and the base prior to
conveyance. This agreement will ensure that both the mission of the
base and our national security interests are protected.
This legislation has the support of the entire Nevada congressional
delegation and has been welcomed by area leaders. The Nevada System of
Higher Education has worked closely with city and county officials to
plan the development of world-class facilities in their communities,
and with the Air Force to address the needs of Nellis Air Force Base.
It is important to note that each of the three parcels designated for
transfer has been designated by the Bureau of Land Management for
disposal because they are surrounded by development and are difficult
to manage. Additionally, the key language in this legislation regarding
the activities allowed on these school lands was unanimously approved
by this committee in 2002.
One of our great responsibilities as a Congress and as a people is
to provide our citizens with the opportunity to take part in the
American dream. And we all know that education is the key to that
dream. By working together to make these new campuses a reality we will
turn these lands into the literal foundation of opportunity for
generations to come.
I greatly appreciate the distinguished Chairman and Ranking Member
making time for this hearing and I look forward to working with the
Committee to advance this bill.
______
Statement of the Nevada System of Higher Education, on S. 940
The Nevada System of Higher Education (NSHE) would like to thank
Senator Harry Reid and the Nevada delegation and their staffs for their
work on this legislation. We also appreciate the subcommittee for
scheduling this hearing and for the opportunity to introduce a
statement into the record.
The Southern Nevada Higher Education Land Act of 2009 is of great
importance to the Nevada System of Higher Education. Our university and
college campuses in southern Nevada currently serve 70,000 students,
and that number is expected to grow by 21% over the next ten years.
When compared to other western colleges and universities, campuses in
Southern Nevada have less land to meet the needs of our students. We
need additional space to meet our current needs, as well as the demand
future growth will place on our institutions.
The campuses affected by this legislation, the University of Nevada
Las Vegas (UNLV), the College of Southern Nevada (CSN) and Great Basin
College (GBC), under the direction of the Nevada Board of Regents, have
worked diligently with the respective local governments to identify
areas that will be of most benefit to the institutions and the
communities they serve. The local governments of North Las Vegas, Las
Vegas, and Pahrump and Nye County have enthusiastically supported this
legislation and the opportunity to partner with the Nevada System of
Higher Education. These partnerships and the legislation before you
today will allow for smart growth in mainly urban areas that will
enhance the educational experience for students and improve the quality
of life for residents of the local communities.
As UNLV compares its current land holdings with institutions of
similar size, there are huge discrepancies, most of which are related
to the age of those other institutions and their ability, many decades
ago, to secure land in order to support the developing needs of higher
education in their communities. The ability of these research
institutions to have access to such land has helped them, in many areas
in the United States, to become vibrant centers of economic development
activities, helping their communities, the state and even the region.
The value of this land conveyance will benefit all of higher
education in Southern Nevada, and will allow the state's largest
university, UNLV, to further support graduate education and research
needs. It is also important to note that the use of this land has been
closely planned with two other main partners: the City of North Las
Vegas (CNLV) and Nellis Air Force Base (NAFB). We currently have Board
of Regents approved interlocal agreements in place with both these
partners that define our cooperation and use of this land, should the
final transfer become law.
As unemployment in Las Vegas has reached more than 13 percent and
the Las Vegas valley has continued to lead the nation in foreclosures,
enrollment at the College of Southern Nevada (CSN) has soared and
expanded by more than 15 percent over the past three years. CSN is the
largest and most ethnically diverse institution of higher education in
Nevada and charges the most affordable tuition in Southern Nevada. CSN
serves approximately 43,000 students this fall semester. However, at
about 40 square-feet per student, CSN has some of the most cramped
college campuses in the United States.
Furthermore, the area surrounding the property has experienced
explosive growth. Over the past two decades, this area has seen the
addition of 70,000 homes and hundreds of thousands of residents.
Currently, these families have no access to a Nevada higher education
facility within a half-hour commute.
The college specializes in providing job training and general
education credits that accommodate the scheduling needs of a diverse
community, operating on a 24-hour day. CSN plans to move forward with
the NW campus as a traditional community college campus focusing on the
provision of educational learning space supplemented by the necessary
day-to-day services required by the students while they are on campus.
CSN and the City of Las Vegas have entered into an agreement to
establish innovative design standards for the development of the CSN
campus, roads, and infrastructure improvements on the Property.
Expanding services to this area of Southern Nevada is a natural fit for
CSN's mission as an open-access institution that is responsive to the
community's ever-changing needs.
Likewise, the opportunity for Great Basin College (GBC) to expand
in Pahrump and Nye County will provide a much needed service to
residents of this area. The population of Nye County is approximately
40,000 and growing. It is the only community of that size in Nevada
that is not served by a community college with a permanent, dedicated
campus. Economic and workforce development in Pahrump and Nye County is
essential to local residents and those residing in southern Nevada.
With a campus located on this site, the college's strategic master plan
for Pahrump and Nye County can move forward. Education and training
programs in green technology, renewable energy, health, education, and
business are already in college offerings or being planned for the near
future.
This legislation provides the means for Great Basin College to
provide an opportunity for all Nevadans to participate and succeed in
higher education; to provide academic and technical programs that
address the unique education needs of a highly diverse and non-
traditional population; and build on the quality of life of all
Nevadans by advancing and enriching lives in Nye County.
The transfer of the three parcels of land as provided by this
legislation will benefit the long term needs of public higher education
in southern Nevada and represents a once in a life-time opportunity. In
many ways this is a modern day version of the land grant act that will
greatly help support public higher education institutions in Southern
Nevada. The Nevada System of Education asks that you support this
legislation and give us the opportunity to provide the highest quality
of education for our students now and long into the future.
______
Statement of Hon. John Ensign, U.S. Senator From Nevada, on S. 940
I want to thank Senator Reid for his work on this important
legislation that will launch a new chapter in higher education
expansion in southern Nevada.
With more than 85% of our great state's land under federal control,
we have long relied on federal legislation to allow for growth,
including the beginning of our system of higher education. It was the
federal Morrill Land-Grant Legislation that brought a new era in our
system of higher education with the much lauded Desert Research
Institute and medical school.
Today, we again turn to federal legislation to convey land from the
Bureau of Land Management to our growing universities. The Southern
Nevada Higher Education Lands Act allows for federal land to be
transferred to the University of Nevada, Las Vegas (UNLV); the College
of Southern Nevada (CSN); and Great Basin College.
These are all worthy institutes of learning that, with this
additional la`nd, will be able to meet the needs of Nevada students for
many years to come.
UNLV, also a land-grant university, is looking to expand its campus
near Nellis Air Force Base. While there are always concerns about
encroaching on the space and mission of Nellis, I am confident that all
sides will cooperate and work together to ensure the safety and success
of all neighbors.
CSN is the fourth largest two-year college of its kind in the
United States and Nevada's largest institution of higher learning. With
three main campuses and eleven academic centers, the school continues
to grow in facilities and reach, and we are fortunate that with this
legislation, even more southern Nevadans will benefit.
Great Basin College in Elko, Nevada, wants to expand to Pahrump to
impact the lives of even more students-a goal that promotes education
for all of southern Nevada, including in more rural areas.
I am pleased to cosponsor this legislation and voice my support for
the expansion of southern Nevada higher education. The investment we
make in education will provide great dividends in the future.
______
Statement of Mike Casabonne, President, New Mexico Federal Lands
Council; Jim Cooper, President, New Mexico Wool Growers, Inc.; and
Alisa Ogden, President, New Mexico Cattle Growers' Association, on S.
1689
My name is Mike Casabonne and I'm President of the New Mexico
Federal Lands Council. The New Mexico Federal Lands Council represents
thousands of federal and state trust lands grazing operations.
I will confine my comments today to livestock grazing in
wilderness, grazing language in S. 1689 with respect to National
Conservation Areas, the need for a wilderness ``light'' designation and
a request for local field hearings.
LIVESTOCK GRAZING IN WILDERNESS
The problems with livestock grazing in wilderness areas have been
well documented, leading to Congress issuing the Grazing Guidelines
(House report No. 101-405). Our concern is that these guidelines were
written when most wilderness areas existed in the high country. The
lands affected by this legislation occur in a desert ecosystem where
the resource and ranching needs are far different. For instance, the
``occasional use'' of motorized vehicles may be sufficient for high
country, seasonally grazed allotments. It is not sufficient for desert,
year around grazed allotments where pipelines and other water
facilities must be checked on a regular basis. We suggest that Congress
or an independent entity conduct a thorough review of the guidelines
applicability to desert allotments and make recommendations for any
warranted changes. We further request Congress refrain from designating
any desert ecosystems where livestock grazing occurs as wilderness
until such time as the review is completed and revisions considered.
LIVESTOCK GRAZING IN NATIONAL CONSERVATION AREAS
The grazing language in Section 4 of S.1689 places the grazing
allotment owner at a distinct disadvantage. The consistency language
puts in jeopardy existing grazing practices and will place severe
limitations on any future range improvements or other rangeland
management practices. We strongly recommend the consistency language be
dropped and that livestock grazing be managed according to FLPMA and
other applicable laws. We have reviewed the proposed language submitted
by People For Preserving Our Western Heritage as part of their
testimony and endorse its contents.
In addition we have some questions on the ``where established''
language in Section 4. Is this applied on an allotment by allotment
basis, on an acreage basis or some other criteria? What impact does the
``where established'' language have on permitted numbers of livestock?
Can permitted numbers be increased in a National Conservation Area
under this language? In other words, we are seeking a clear enunciation
of Congressional intent with respect to the ``where established''
language and we hope the Committee will provide that.
A DESIGNATION OTHER THAN WILDERNESS
The land use pattern in Dona Ana County, a valley floor of private
lands surrounded by various types of Federal land, is not unique to the
west. Population growth combined with public pressure to retain
privately held farmland and other open spaces and the public desire for
additional recreational opportunities will continue to impact Federal
land. Clearly a new land use designation is needed which will protect
certain lands from development, but still allow for public access and
enjoyment. Some have called this wilderness ``light'', others
wilderness ``without the big `W' ``. The Rangeland Preservation Area as
proposed by People For Preserving Our Western Heritage meets this
criteria and we believe is appropriate for the lands in Dona Ana County
under consideration. This or some other similar designation should be
considered by the Committee for S. 1689 and for other legislation which
may impact such land use patterns in our western communities. The time
has come for Congress to step forward with a new land use designation
that responds to both national concerns for protecting Federal lands
and local concerns for development, recreation and traditional uses.
FIELD HEARING
The issues we've raised, combined with such other issues as
boundary adjustments, range improvements, homeland security, energy
corridors and other right of ways, flood control projects, Renew New
Mexico projects, and so on necessitate a field hearing to fully air and
adequately address the complex issues involved. Allowing two witnesses
five minutes each to testify two thousand miles away from the land and
the people involved is simply not a reasonable or appropriate
legislative approach. We strongly recommend a field hearing be held in
Dona Ana County on S. 1689
Thank you for the opportunity to present this written testimony.
______
Statement of Ken Miyagishima, Mayor of Las Cruces, Leticia Benavidez,
Chairwoman, Dona Ana County Commission, Michael Cadena, Mayor of
Mesilla, on S. 1689
There are few times in a person's life were one is able to be a
part of something truly historic. Today we have such a moment for our
communities in Dona Ana County. On September 17th, Senators Bingaman
and Udall introduced legislation called the Organ Mountains-Desert
Peaks Wilderness Act in Congress to forever protect some of the most
important natural areas in our county--including our iconic Organ
Mountains--as new wilderness areas. The time has come to take the next
step in securing this natural legacy for our region's future
generations.
For years, Las Crucens and residents of Dona Ana County have sought
balance between rapid growth and protecting some of the beautiful open
space and mountains that give us our identity. Citizens have wondered
if the quality of life that brought them here or kept them here was
going to stay that way or if instead, we would we go the way of some
other high growth communities and lose these important natural
resources to sprawl and development.
Thanks to the visionary leadership of Senators Bingaman and Udall,
we are closer to an answer. The Organ Mountains-Desert Peaks Wilderness
Act will protect many of Dona Ana County's most beloved natural
treasures, including much of the Organ Mountains, the Robledos, the
Sierra Las Uvas Mountains, the West and East Potrillos, Broad Canyon,
and Mount Riley as new federal Wilderness Areas. Some of these lands
were given interim protection almost 30 years ago, but lacking
wilderness designation, remain at risk until Congress gives them this
``gold standard'' of protection.
This important conservation legislation will also protect nearly
100,000 acres buffering the front of the Organ Mountains as a National
Conservation Area, and would include part of the Dona Ana Mountains.
The legislation will allow a full range of recreational and traditional
activities to continue, including hunting, hiking and ranching, while
preventing further development in this area.
Protecting these vital natural areas will boost our economies, as
visitors come to enjoy the beauty of the landscapes and employers can
attract workers looking for the high quality of life our open spaces
contribute to. A 2006 study of the economies of many western United
States cities by the non-profit Sonoran Institute found that
communities with nearby protected lands had faster than average
personal income growth. When good employers and high-tech entrepreneurs
can locate anywhere they want, areas with high quality protected public
lands are an added incentive.Wilderness designation of our area's
natural gems will help our communities enjoy this competitive advantage
and long lasting economic benefits.
Wilderness and National Conservation Areas are considered the
``crown jewels'' of America's protected public lands, and designation
here could help attract federal dollars to showcase them. Simply put,
Wilderness will provide a huge long term economic benefit to Dona Ana
County and its communities.
Today we have the chance to choose a direction that will have
significant impacts for our region and our way of life. At a time when
we continue to lose 6,000 acres of open space each day in America--2
million acres a year, we believe Senators Bingaman and Udall have taken
a laudable step toward ensuring that more of what makes New Mexico the
land of enchantment will be here for us and our grandchildren. We
encourage Congress to take up the legislation and pass it quickly. It
will continue to give back for generations to come.
______
Statement of Sanford Schemnitz, Chairman of the Southwest Consolidated
Sportsmen; John Moen, President of the Southwest NM Chapter of Quail
Unlimited; Noel Cooley, Past President of the Dona Ana County
Associated Sportsmen; and John Cornell, New Mexico Wildlife Federation
Our canyons, grasslands, and mountains are tough, rugged, and
spectacular. It takes time to get to know them-hours spent afield
watching quail, deer, or just a beautiful landscape view. As sportsmen,
we've spent many years appreciating and utilizing both the beauty and
the bounty of local lands like the Organ Mountains, Broad Canyon, and
the West Potrillo Mountains.
Yet while these mountains and grasslands surrounding our ever-
enlarging city are rugged, they are also very fragile. Those of us that
have spent years--indeed, decades--exploring the vast expanses of our
open spaces surrounding the sister cities of Las Cruces and El Paso,
are very much aware of that fragility. Many different users, including
sportsmen, have appreciated the bounty that exists here. We have also
realized that the well-being of these same areas is not guaranteed.
As recently as the 1980s, there were no houses, other than a couple
of ranches, between A-Mountain and the Organs. So much has changed in
the last three decades. The same fate has occurred in the valley
between Las Cruces and Hatch and between Las Cruces and El Paso. Human
civilization, and the stresses that it brings to other life that share
this landscape, slowly creeps toward and encroaches upon them.
So four years ago, when we heard that a group of folks -including
conservationists--wanted to designate wilderness in these local areas
to ensure they would stay as they were, we were interested, but also
skeptical. Similar efforts in the 1980s and 1990s had not met with
success. Some sportsmen were concerned about how the plans would be
crafted and what their effects would be.
But our years afield convinced us of the urgent need to protect
good quality habitat and preserve our natural lands for current and
future generations.
We believed that in the fight to preserve these special places,
this time would be different--largely because Senator Jeff Bingaman and
his staff stepped up to the plate. They came to our community and
listened. They started out with open minds, eager to hear local ideas
and opinions. With an eye for balance, many local groups collectively
went to work with the Senator's staff to look for real and lasting
solutions to protect our natural public lands. Land conservation is
complex, and requires leadership at all levels. Senator Bingaman,
through time consuming and thoughtful work found real compromise and
balance. Several years of give and take and field trips out on the land
produced an important milestone: a proposal to protect many of our most
important lands in Dona Ana County. We are proud to have been a part of
this process.
The Organ Mountains-Desert Peaks Wilderness Act, introduced by New
Mexico Senators Jeff Bingaman and Tom Udall, will protect these areas
and their natural habitats and resources in perpetuity-essentially
``locking in'' such activities as hunting, hiking, horseback riding,
camping, and basic family recreation, for all time. That protection
will serve the greater good of those of us that wish to enjoy these
places and pass them down to our children's children. That is the key
to the puzzle--finding a balance between providing opportunity for us,
as citizens, to seek recreation within these areas but, at the same
time, conserving them as reservoirs of clean water and air and as
habitat for wildlife.
While the new bill does not include all of our suggestions, nor one
hundred percent of any other group's requests, we believe it is
balanced. Senator Bingaman, Senator Udall and their staffs did
tremendous work in reaching out to the many varied interests and
stakeholders. We feel fortunate to have had their leadership at the
helm steering this historic legislation and making this long sought
after goal of protection possible.
As sportsmen, we join with many other members of the larger
community to encourage the New Mexico delegation to get behind this
important conservation bill. Move the Organ Mountains-Desert Peaks
Wilderness Act through Congress and to the President's desk with good
speed.
______
Joint Statement of Richard E. Hays and Stephen L. Wilmeth, on S. 1689
For hundreds of years the desert of what is now Arizona has been
the route of goods coming north from Mexico. The flow of merchandise
was created by demand from citizens and settlers of del Norte, the
expanse of territory generally north of the 54th Parallel. Over time,
the goods became as often illegal as they were legal. Today, the goods
passing through the rural, isolated expanse of sand, rock, and heat are
more often than not, illegal. The circumstances and conditions
surrounding the flow are dangerous, and the consequences of stemming
the tide must be a national priority.
Since 911, the emphasis of border security has become a national
debate. In fact, recent polls in Arizona indicate that 51% of residents
believe that border security is more important than the national health
care debate. In a margin of 65% to 20%, those same residents believe
enforcing border security is more important than dealing with the
legalization of aliens already in the United States. As distance from
the border increases, these same questions don't stimulate the same
responses. The phenomenon of changing priorities as the distance from
ground zero increases is clearly in play on the Mexican border.
Through time, the economics and the conditions of illegal entry
have resulted in the evolution of dominant entry points along the
border. Due to the ease of entry within or adjacent to urban centers
during the late 80s and 90s, those areas became focal points for entry.
Pressed by American citizenry who were tired of being overrun with
illegals, the Border Patrol responded with organized enforcement
tactics that concentrated activities at those points. Examples of this
were El Paso, Nogales, and in the expanded urban area at Tijuana. When
the El Paso operation was instituted the data was very clear. The
incidence of illegal entry was reduced.
In 1994, Operation Gate Keeper was undertaken along the California
urban border areas. In a curiously delayed response, the entry of
illegals was reduced at the point of asset concentration, but a far
different result occurred elsewhere. The success of halting entry in
the urban areas was mirrored by the expansion of entry in the desert
areas to the east. It was what the Border Patrol expected and wanted.
Illegals would be easier to catch in open rural areas than they had
been in the congestion of the urban centers in southern California.
Several conditions existed to support this reaction to Gate Keeper.
First, the economic conditions north and south of the border only
expanded the flow of illegal entry. Jobs were available north of the
border. Second, Mexican Highway 2 ran adjacent to the border for miles
into vast and isolated expanses. Third, the American invention of
designated wilderness areas stretched for miles east/ west and north/
south along that boundary in national wildlife refuges and monuments
managed by the Department of Interior (DOI). The soft underbelly of the
American border was discovered.
THE WILDERNESS BECOMES A DANGEROUS PLACE
By 1998, visitors entering Organ Pipe National Monument with back
country permits were estimated to be outnumbered by illegal aliens
trekking north by a two to one ratio. By the following year, the
permits issued to park visitors had dropped in half and the number of
illegal nightly visitors had nearly tripled. The monument had become a
place to be avoided by American citizens.
The increased illegal entry also meant there was no longer a safe
place for the illegals. The Border Patrol recorded five deaths in what
they describe as the ``West Desert Corridor'' in 1998. By 2002, there
were more than 130 deaths in the same corridor. This count is
particularly alarming in that the deaths were occurring in the face of
declining apprehensions after 2000 in the Border Patrol sector as a
whole. Deaths were running at the rate of about 40 per 100,000
apprehensions whereas five years earlier there had only been four
deaths per 100,000 apprehensions . . . a tenfold increase!
Other statistics tied to crime were no different. Organ Pipe
statistics indicated that finding abandoned vehicles in the monument in
1994 was unusual. By 2001, they had reached nearly 150 per year. Number
of high speed pursuits, tons of marijuana captured, and illegal
apprehensions in the park all reflected similarly alarming trends. In
2003, National Geographic declared that Organ Pipe Monument was the
most dangerous park in the United States. It got so bad that signs were
posted in the park not to stop for dead bodies. It could be a trap set
to lure unsuspecting park visitors!
ORGAN PIPE STAFF QUANTIFIES DAMAGE LEFT BY ILLEGALS
In the midst of the chaos the National Park Service, the managing
agency of the Organ Pipe National Monument, embarked on an effort to
quantify the damage being done to the monument. Their approach and
their findings were interesting. They mapped transects across the
monument on predominately east/west directions rather than north/
south. Their logic was simple. They would be able to observe the north/
south illegal traffic more dynamically.
What they found was more impact on the monument in the designated
wilderness areas than in the nonwilderness, fully accessible areas. Why
. . . because Border Patrol and Park Service officials were limited in
their ability to access the wilderness areas on a continuous basis.
They didn't have full and unrestricted access. Motorized access in
wilderness areas is not allowed. The illegals were taking full
advantage of easy access through areas preserved for posterity.
In an internal report done by the ``Resource Management Staff'' at
Organ Pipe, very alarming results were presented. The most glaring
example pertained to a representative one square kilometer parcel of
designated wilderness in the Valley of the Ajo. The following was
quoted. ``Results of a GIS model, based on transect data, of what a
``typical'' square km of valley floor habitat might look like to a
monument visitor taking a hike.'' The one square kilometer, slightly
more than one quarter section of land, had data extrapolated and mapped
presenting the following illegal impact on the monument:
1. Seven rest sites
2. 15 incidences of vehicle tracks
3. 40 sites of trash disposal
4. 48 discarded water bottles
5. one set of bicycle tracks
6. one set of horse tracks
7. three abandoned camp fire sites
8. 254 foot trails!
The report went on to quantify the establishment of ``wild cat''
roads which serve as access for drug runners. On a map in the
presentation, 35 such illegal roads can be counted. That compares to 13
legal, established roads in the monument.
THE RECIPROCAL OR MIRROR EFFECT
As the data was analyzed something very interesting began to
emerge. The damage was not confined to designated wilderness areas
managed by United States agencies on the north side of the border. What
was occurring was that similar damage was occurring in desert areas
adjacent to the international border to the south and southwest.
El Pinacate, the ``sister park'' to Organ Pipe had become a staging
area for illegal entry into the United States. In a aerial survey done
for the purposes of mapping air strips used by drug runners, not only
illegal airstrips were found, but roads and trenching done by the
Mexican military to dissuade the establishment of the airstrips were
being created in the fragile cinder landscape of the Pinacate Biosphere
Reserve.
Twenty two airstrips were found that had been trenched by the
Mexican military. Twelve other trenching sites were found that were
intended to prevent the establishment of airstrips. Five illegal,
``wildcat'' roads were mapped, and six fully operational illegal strips
were being used for loading and flying drugs north.
In addition, ``colonias'' continue to sprawl out along Highway 2 as
the infrastructure is built in response to the business of moving goods
and services north. Mountains of trash, extensive wood cutting, and
vandalism to border fencing and facilities lead the Organ Pipe staff to
write that the activity will ``impact natural and cultural resources
along the border''. Pictures of such activity lead any observer to
surmise that the statement was understated at best.
THE GREATER PICTURE
Land agencies of the United States are charged with managing
massive stretches of lands that lie near and adjacent to the Mexican
border. The DOI, through its various agencies, manages about 47% of
those lands in Arizona and 48% of the lands adjacent to the border in
New Mexico. Every stretch of that land today is under assault from
illegal entry with many areas that reflect conditions similar to those
in Organ Pipe. If Department of Agriculture lands (Forest Service) are
added, the list is expanded.
Two additional examples include the Tohono O'odham Indian
Reservation and the Coronado National Memorial. The Tohono O'odham,
administered by DOI's Bureau of Indian Affairs (BIA) is a reservation
with a native Indian population that has an historical homeland
extension into Mexico. In that expanse of land, Tohono O'odham people
do not have allegiance to powers north or south of the border. The
native Indian population, originally known as Papagos, move back and
forth across the border. Drug cartels have made permanent inroads into
the area with cash and the promise of greater wealth. The BIA, has
little ability to deal substantively with the issues.
Further east, the Coronado National Memorial magnifies the risk
that roadless border areas pose to the entire nation. In a 3 by 3.5
mile corridor, the Yolanda Molina de Hernandez Organization runs drugs
like greyhounds on a racetrack. Once inside the monument, runners
either go north or northeast into USFS lands and the Huachuca Mountains
where there are over 70 miles of trails. Citizens who enjoy the
adventures of an outdoor excursion know what this area has become. It
is not for the faint of heart and it gives a new meaning to the Wild
West.
In both of these cases, the mirrored effect of infrastructure
expansion seen at Organ Pipe has occurred. Where roads are absent and
railroads are present, the drug cartels have established facilities and
or terminals for staging and running drugs and humans north. The build
up of infrastructure is continuing. Airstrips are established, colonias
are expanding, more roads into DOI and USDA managed lands have been
made, and degradation of fauna and flora continues.
THE EL PASO EXPERIENCE
In the first major effort aimed at reducing illegal entry in urban
areas, Operation Hold the Line, was started in El Paso in1993. Data
from that operation indicates that apprehensions fell quickly from
about 22,000 per annum to about 7,000 and stabilized near 9,000. What
was not seen was the wholesale displacement to entry elsewhere as seen
in the desert corridor of Arizona. What was occurring?
One prevailing expert theory is that at the time the illegals
didn't have the soft entry points through federal wilderness areas to
fall back to. All New Mexico areas allowed fully motorized access by
the Border Patrol and had ``engaged resident ranchers'' that lived and
were constantly present on the expanse of border running west from El
Paso. East from El Paso was even less accessible. Those lands are
dominated by private land holdings with residents who constantly patrol
and communicate with the Border Patrol and local law enforcement.
Illegals were being monitored and constantly ran the risk of being in
the path of American citizens who would and will report their presence.
Further evidence of this phenomenon was found in radar records of
drug flights from Mexico's interior to the border. In Texas, the
concentration of such flights and corresponding apprehensions of drugs
adjacent to the border is relatively sparse considering the expansive
landscape across south Texas. New Mexico shows similar and even less
concentrated results. On the other hand, the Arizona situation is
staggering. The situation there is akin to a full scale invasion by a
foreign power. There, isolated federal lands made worse by wilderness
designation are an outright threat to American security and well being.
THE THEORY TESTED
In the Boot Heel of New Mexico, the Border Patrol installed a
communication device on Big Hatchet Mountain. The facility handled
sensor signals from the entire eastern half of the Boot Heel area. The
device was placed without the consent of Bureau of Land Management
(BLM). When word spread of the device's presence, environmental groups
demanded that the device be removed claiming that it would interfere
with desert bighorn and the lesser and Mexican long nosed bats'
breeding and life cycles. The BLM, under pressure because the area is a
wilderness study area, pressed the issue and the Border Patrol
capitulated and removed the device.
For several years, the eastern half of the Boot Heel adjacent to a
very dangerous Mexican border was without this device! When the Border
Patrol finally got approval to put the device back into service some
astounding data was found. From 2006 records, it was found that
mechanical traffic had increased by 671% and foot traffic had increased
by 348% from the same period the year before. Soft entry points are
sought and found by illegal operatives along the border. When they are
found the cartels take full advantage of them! In the case of Big
Hatchet, the Border Patrol was denied full access and was operating
with diminished ability because of environmental demands. American
security and American people were put at risk.
THE OPPORTUNITY FOR NEW TERRITORY
Today, there is a continuing effort to designate wilderness on
federal lands along the Mexican border. The Wilderness Society through
its affiliated groups, the Sky Island Alliance and the New Mexico
Wilderness Alliance, has proposed huge areas on and or near the border
for wilderness legislation. Two of these areas, the Tumacacori
Highlands of southern Arizona and the Potrillos Mountain complex in
Dona Ana County, New Mexico are large isolated areas that pose the same
risks to the United States as the Arizona lands already under siege.
The question becomes what will happen if wilderness designation is
successfully legislated. In Arizona, an expansion of what is going on
all around the Tumacacori Highlands will expand. In New Mexico, the
outright risk of duplicating the Arizona is fully in play. The American
people must remember that the Wilderness Act of 1964 prohibits
motorized access and man made facilities. Notwithstanding the promises
of bastardizing that wilderness standard with ``cherry stem'' roads
providing limited access, locals fear what will happen when the
legislation reaches the committee hearings and horse trading in
Congress. Any agreements made conditionally with local needs in mind
will likely be altered, more roads will be closed, the Border Patrol
will fight for access, and the drug cartels will find a new soft
underbelly of access into the United States. The protection in play
with the combination of resident ranchers, state and local law
enforcement, and the Border Patrol will become constrained and
conditional. What is arguably the sole reason the Arizona experience
hasn't been duplicated in New Mexico will be forever altered.
The New Mexico component even has some of the characteristics of
the Arizona model. In addition to the vast areas of federal lands,
Highway 9 runs parallel to the border. Experience with trucks being
loaded at staging areas in Mexico and crossed to be unloaded at points
along that road becomes the same kind of opportunity. What makes
matters even more dangerous is that a portion of the northern boundary
of the proposed Potrillo Mountain Wilderness area is formed by an
ultramodern east west transcontinental rail line just 24 miles from the
border. The specter of accessing that major east west transportation
line with a weapon of mass destruction provides a heightened security
risk.
THE LESSONS UNLEARNED
When legislation designating more wildernesses on the U.S. border
is heralded by environmental groups and Mexican drug cartels alike,
American leaders need to reassess their thinking. It isn't the casual
visitor to Organ Pipe, Cabeza Prieta, or the segments of the Coronado
National Forest making new roads, trashing the travel corridors,
setting fires, poisoning water holes, and carrying AK-47s. The American
visitors are the only people who will follow the rules and honor the
spirit of wilderness as it was intended. Those big, blacked out Jeep
Gladiators that are running across desert wilderness areas at night are
not occupied by folks who are maintaining a bird identification list
nor do they care in the least about any fragile cinder cone formation.
They are just glad that the chances of encountering a Border Patrol
agent or any other American who has a vested interest in maintaining
the integrity of the lands are limited because of the restrictions
placed upon that agent or that citizen.
What is more insidious is the manifestation of our actions on like
areas to the south of the border. The El Pinacate phenomenon needs to
be reviewed. When our lands are being ravaged by an onslaught of
humanity and our actions have unwittingly created the same devastation
across our borders because of the infrastructure and policing actions
that are taking place to combat it, shame on us for our idealism. In
this case, we run the risk of having met the true enemy, and . . . he
is in our midst.
SIDE BAR I--THE BORDER PATROL BECAME THE BOOGIE MAN
The dust swirled around the Hughes 500 as the Park Superintendent
leaned in and admonished and berated the Border Patrol pilot. The pilot
had landed the helicopter on designated wilderness in a rescue
operation that would save the lives of several illegal aliens that were
simply not prepared to endure the heat and the conditions of crossing
Organ Pipe National Monument. Threats were countered back, and,
ultimately, nothing was done and no charges were filed . . . this time.
When Operations Hold the Line, Safeguard, and Gatekeeper were
undertaken, the Border Patrol knowingly pursued a plan that would force
illegals crossing the Mexican border to avoid the urban areas and
venture into the remoteness of the border expanses. It was expected
that the hordes of illegals crossing in the urban areas would be easier
to apprehend if they were forced out into open country where technology
and open space would allow observation and interdiction. The plan
worked.
It can now be observed, however, that the Border Patrol was
actually unprepared for the conditions that they had to encounter to
apprehend the diverted illegals. The federal land designation,
wilderness, became a most confounding constraint. In Border Patrol
writings and reports from the 90s there were numbers of references to
``wilderness.'' Based on retired agent correspondence and interviews,
however, it becomes apparent that the interpretation of the reference
was more of a generality of remoteness and isolation than it was a land
designation. The real culprit was a land designation with restrictions
that handcuffed enforcement activities. The Border Patrol was ready and
capable of handling real wilderness. It simply wasn't ready for the
realities of designated Wilderness!
In a metaphorical comparison, the conflicts between DOI land
agencies and the Border Patrol increased proportionally to deaths in
the Desert Corridor of Arizona's border lands as illegal entry
accelerated. Tension was apparent on both sides. In a report by Park
Service staff, the activities of the Border Patrol on the desert
environment of Organ Pipe contributed to the degradation of the fragile
environment. The accusation was actually listed in an array of such
threats alongside the same comparison to drug runners!
What the Border Patrol interpreted to be Park Service mentality was
actually the federal land designation that the Park Service had a
vested interest in administering. As noted in the Wilderness Act of
1964, wilderness was a land largely untrammeled by man. Motorized
vehicle access was not allowed. Neither permanent roads nor temporary
roads were allowed. Even overflight of aircraft in a designated
wilderness was conditional in the original concepts of the law. When
legal actions were filed by environmental groups against the Border
Patrol, the Marine Corps, and the Air Force for overflight of
designated border wilderness, the hostility level was elevated yet
more.
The Border Patrol finally sought Congressional help and Arizona's
Senator Kyl (R-AZ) stepped into the fray and demanded less conditional
access and more Border Patrol freedom to respond and patrol. Time and
unrelenting tides of illegals have forced a pragmatic, albeit tentative
relationship with the sides as both agencies attempt to maintain their
mission commitments. Where expansion of designated wilderness has
occurred, though, the same conflicts time and again arise between the
agencies and from environmental special interest groups. When this
reoccurs, the premise of the prevailing Border Patrol interpretation of
the underlying intent of the land agencies comes back into focus. What
should be agreed upon, however, is that the Mexican border, with all
the large expanse of arid, isolated, and soft points of entry, is a
very dangerous place. It is dangerous to every American and the danger
isn't just the flow of immigrant laborers. The real danger lies where
the most radical ideology collides with the most money.
SIDE BAR II--THE DOI INTERNAL AGENDA MUST BE QUESTIONED
Although, the data that the Park Service staff collected at Organ
Pipe was astounding, no underlying report was written. Nothing was
brought officially to the attention of Congress. There was a 2004
report of the information presented at a ``Border Lands Manager''
group, but why something as important as the facts in the report were
not widely distributed is a matter of concern. It leaves interpretation
to such an oversight to criticism, suspicion, and speculation.
In the report, the Park Service noted that mitigation alternatives
were as follows:
1. Educate the public
2. Monitor resource damage
3. Demand a political solution
Each of these alternatives needs clarification and explanation by
the Park Service. Taken in order, educate whom and what? Is the
suggestion that education is in order referring to the need to forewarn
the public of the danger of any and all activities in border wilderness
areas or is the reference aimed at educating the Drug Cartels of the
damage they are causing those wilderness areas? If it is the former, a
more honest and frank assessment to park visitors would have been
appropriate. ``You are endangering your life and the lives of your
loved ones by visiting this border wilderness. Contact your Congressman
and demand immediate and full access to the border so the Border Patrol
and Homeland Security forces can act and this degradation can be
stopped!'' If it is the latter, a worldlier Park Service negotiator had
better be at the table when the Carrillo-Fuentes Cartel leadership
settles into a seat around the table. It is highly unlikely they would
readily agree to alter their routes for the benefit of 21 Sonoran
antelope.
As for the need to monitor the resource damage, how much damage
does it take to decide that something is grossly wrong with the system?
It shouldn't take a genius to figure out that evidence of 254 foot
trails in a quarter section of designated wilderness is not what the
original framers of the wilderness act had envisioned. Perhaps the
superintendent of the monument should try to personally apprehend and
ticket one of the Jeeps crossing the desert at night. After all, that
is exactly what he tried to do to United States Border Patrol agents
when they landed a helicopter on wilderness land in a normal operation.
As for the demand for a political solution, why not ask Congress to
pass legislation making it a federal crime for illegal aliens to enter
the wilderness areas, damage natural resources, leave mountains of
trash, and poison existing and rare water holes? Certainly such
legislation would be possible, but that outcome is as ludicrous as
placing constraints and barriers upon Homeland Security activities. As
for calling up the Mexican president and demanding that he
conceptualize and implement an acceptable solution could be done as
well, but the fallacy of that ``political'' solution is not even worthy
of debate. This snake's head must be cut off.
The underlying risk that DOI faces is that, in the internal
environment of its operations, a different agenda is in play. Unless a
different attitude is demonstrated, the agency runs the heightened risk
of being accused of allowing wilderness, the environmental movement,
and certain segments of their administration to be so interlocked and
intertwined that each component is indistinguishable. Crafting and
growing land preservation for rewilding schemes is one thing, but
jeopardizing American national security is something quite different.
The whole Arizona border phenomenon should elevate the wilderness
movement to the status of national debate. The degradation of the
border environment is so blatant and widespread, that the keen observer
must question the real intent. If it was truly a debate about
stewardship of natural resources, the steward would have long ago cried
for substantive assistance and put aside any philosophical debates.
Perhaps the truth is that the whole affair is a matter of control and
power. The environment just happens to be a convenient vehicle to
camouflage the truth.
IMPLICATIONS OF THE BIG HATCHET MOUNTAIN WILDERNESS PROSPECT
The view from Big Hatchet Peak at night is something to behold. At
least 125 miles of isolation and ``big lonesome'' dominate and reduce
all civilized things across the vast radius of this vista. To the south
is Mexico. Pin points of lights from villages and widely scattered
ranches can be seen. The glow of larger towns and cities like Agua
Prieta and Janos reflect on distant cloud cover, but mostly, the shear
immensity of this isolated land in darkness resonates into your senses.
To the north, lights of New Mexico towns Silver City, Deming, and
Lordsburg can be seen. To the east, lights from El Paso and Las Cruces
glow. As daylight advances, the view alters and physical features
become prominent. Animas Mountain to the west reaches into the same
rarified air as Big Hatchet. The bluffs and points of Big Hatchet
disappear vertically away from the summit. If you are inclined to feel
faint at the prospect of hanging out into space to look over the edge,
this is not the place for the weak of heart. This is nature at its
rawest, and the physical demands and dangers are matched only by the
illicit human activities going on around the clock in this big isolated
country. This is one of the most active corridors of human and dope
smuggling along the U.S. and Mexican border. This is the ``Boot Heel''
of New Mexico. The international border surrounds you on the south and
the east.
In the midst of this isolation is a man made device that could be
compared to something as out of place as a contraption placed from a
space vehicle on the surface of Mars or Venus. It is a communications
device placed by Customs and Border Protection-Office of Border Patrol
(CBP-BP) under a permit from the Bureau of Land Management (BLM), the
agency charged with administering the federal lands dominating the
entire region. It is there to receive and relay electronic signals from
across the eastern half of the entire Boot Heel area. Such devices are
a vital tool in monitoring and controlling illegal entry from Mexico in
this immense area. They meet the technological need to have line of
sight contact with a receiver that can relay readings to a Border
Patrol monitoring center. Big Hatchet is the dominating physical
feature that both creates the need for such a collector and provides
the location from which the signals are relayed. It would seem to the
uninformed that the CBP-BP and BLM would be united in the need for
placement and operation of a device with such importance in the
National Security effort. The truth is they don't share the same
missions and are both influenced and administered by federal government
bureaucracies dominated by very different political agendas.
For several recent years this relay was not operational. It had
been placed on the mountain by the BP without official BLM approval.
Why such an important link in communication was not authorized can be
explained in part by the nature of the service it provided. The BP is
not in the business of announcing to the world where and when
monitoring devices are placed. If such information is made known, it is
not just the good guys who will be aware of such placement. The bad
guys are the individuals making their living running dope and human
delivery services, and their success depends on their ability to avoid
detection. If an important piece of detection equipment is taken out,
it makes their job much easier to accomplish.
Conflict concerning placement of the repeater arose when
environmental groups demanded its removal from Big Hatchet, which lies
within a Wilderness Study Area (WSA), and must be managed under the
provisions of the Wilderness Act of 1964 and the Federal Lands Policy
and Management Act of 1976. As a man made technical device (there
without a permit), the sensor repeater was not allowed. The
environmentalists claimed it would interfere with lambing of the
resident big horn sheep and existence of lesser and Mexican long nose
bats found in abundance in a large cave in the area. The BP complied
with the BLM order, and the repeater was shut down.
As time passed and illegal activities increased, pressure and
criticism arose calling for reinstallation of the repeater. The public
was not aware that the entire east half of the Boot Heel was without a
repeater. A huge, dangerous, black hole existed on the American border.
Retired Border Patrol Sector Chief Gene Wood has repeatedly called
attention to how corridors of entry into the United States develop. He
describes active entry points as ``soft points'', and they become more
active based on the inability of the BP to monitor, patrol, and
interdict traffic. A growing number of folks are now aware that the
intensity of activity in this isolated area is the culmination of
conditions that have contributed to this ``soft point'' of entry. The
absence of the repeater on Big Hatchet Mountain was a primary,
contributing factor.
How big did the problem become? In the BLM's Environmental
Assessment completed in 2006 and allowing the reinstallation of the
repeater, it was noted that illegal mechanical traffic increased by
671% and foot traffic increased by 348% during the first six months of
fiscal year 2006 compared to the same period the previous year. The
report stated that ``the danger posed to the families of the people who
are perceived to assist the Border Patrol by calling in illegal traffic
is potentially devastating.'' In the absence of the repeater, local
input was limited to that form of communication. The U.S., through
political jousting, put local residents and BP agents alike in a
difficult and dangerous position.
In 2008, the repeater was reinstalled. It is there by the authority
of a Memorandum of Understanding between the BLM and the CBP-BP, but it
is a conditional allowance. The condition is that if the U.S. Congress
changes the current land designation from WSA to Wilderness, ``the CBP-
BP must remove all communication site equipment from the Big Hatchet
Wilderness as soon as possible.'' It is obvious how that will impact
illegal activity and national security. The question of how such a
demand impacts other areas and issues must be asked.
To the east of Hidalgo County where Big Hatchet lies, there is an
active proposal to designate 358,000 acres of Luna and Dona Ana
Counties as wilderness. Over 150,000 acres of that proposal lie in the
Potrillo Mountains just north of the border between Columbus and Santa
Teresa, NM. The same condition of WSA designation exists in that
proposed area. If wilderness designation is passed by Congress,
residents are worried that environmentalists' demands for the removal
of all technical monitoring gear along with elimination of mechanical
access will be imposed on the operation of the CBP-BP, which stands
between residents and the drug lords and coyotes of the smuggling rings
in Mexico. ``All we know and see on a piece of paper is the demand for
the Border Patrol to remove their monitoring gear from Big Hatchet
Mountain if wilderness designation occurs on that WSA. How can we
possibly believe that the same thing wouldn't be repeated here in Luna
County,'' stated rancher Bill Smyer. ``Push comes to shove, we will
bear the burden of any downside. Our government constantly elevates
environmentalists' demands above the concerns and safety of anyone
gainfully employed and trying to stay in business! We have no
champion.''
It is ironic that the only legal agreements in place on this and
other WSAs are grazing permits between agencies of the U.S. government
and local ranchers. The primary burden of performance is placed solely
on the agency trying to maintain national security, CBP-BP. They can
have their repeater in place only on a conditional basis, and they
cannot rely on having helicopter access on an ongoing basis. From
January through April and from June through October 15 they have to
make the half day climb up Big Hatchet Mountain on foot to service
their facility. The BLM, under demand by several environmental groups,
won't allow helicopter disturbance that may affect the big horns and
the bats. If wilderness is declared here or elsewhere on the border,
the conditions will only get more stringent and limiting. The question
needs to be asked, ``How can any national leader support a process that
inhibits or destroys the ability of a U.S. agency and local residents
to control, protect, and enhance their lives and livelihoods with a
satisfactory degree of safety and efficiency?'' An observation made by
a resident who would be affected by wilderness designation in Dona Ana
County provides significant insight. He said, ``There is a big
difference between being in the crowd cheering and being in the arena
fighting for your life. We must find leaders who have at least visited
the floor of the arena, or we will not prevail. Remember, if we rely on
the crowd, they will only cheer when we are killed.''
Editor's note: This article is one in a series written by members
and friends of People for Preserving Our Western Heritage.
www.peopleforwesternheritage.com
CATTLE AND NATIONAL SECURITY BY STEPHEN L. WILMETH
Cattle free by 93! Cattle free by '03! Remember those battle cries?
There is little doubt that too many have heard those same words even in
recent days.
The assault on the federal lands rancher started longer ago than
most realize. It was started at least by 1944 when the Forest Service
in the Gila National Forest sent the first notice to destock the Gila
Wilderness. It was done under the guise of failure to make adequate
progress in range improvements and the resulting deterioration of range
on the Mogollon Front in Grant County, New Mexico. The Forest Service
followed by evicting cattle from the major allotment in what is now
known as the Gila Wilderness and leaving the same allotment holder on
the very range that was purported to be in poor condition!
The Gila Wilderness was established not by Congress but by Forest
Service in an administrative directive 20 years prior to that first
eviction of cattle. It was not until 1964 when the Wilderness Act was
passed and signed by the president that the wilderness was officially a
federal land designation. By that time, the seeds were sown to press
forward administratively to circumvent what the law of 1964 had
promised. Cattle grazing would be allowed to continue where it existed
in federal wilderness at the time of the signing of the act.
At the time of the passage of the Wilderness Act, there were 24
active allotments within or directly adjacent to the Wilderness core of
the Gila. By 2000, fully half of those allotments had been fully
destocked and the other 12 had been destocked 87% from 1960 numbers.
Values of permits used to secure operating loans plummeted. Few
comparable sales to establish value were even available as permits were
simply dropped or reassigned to neighboring ranches with the approval
to run only the cattle allowed on the neighboring allotment. Other than
fellow ranchers, few people recognized the travesty of the implicit
penalties that eliminated half or more of the value of those
investments. An analogy would be for homeowners in any subdivision
suddenly finding their home less than half of its value overnight
because of a zoning ordinance change.
The trend was not limited to the Gila. In the Colorado Wilderness
Act of 1980 and again in the 1990 Arizona Desert Wilderness Act,
Congress demanded that the federal grazing guidelines be rewritten to
clearly demonstrate that the administration of any wilderness
legislation wouldn't be used to eliminate grazing. Stakeholder unrest
existed all across the West, the cries from the environmental camp
echoed ever more loudly, and cattle numbers continued to decline.
In southern Arizona, the cry for wilderness was particularly
active, and it was there that over 1,000,000 acres of border wilderness
was designated since 1978. What Americans should be aware of is the
cost of that legislation in terms of moral decay and national security
interests to this country. Moreover, for the first time, the penalty
for the pervasive removal of cattle from federal lands may start to be
quantified.
More than 50% of the American side of the New Mexico and Arizona
border with Mexico is made up of Department of Interior (DOI) lands.
These lands are administered by the Park Service, the Fish and Wildlife
Service, the BLM, and the BIA. The Department of Agriculture's Forest
Service administers yet more lands made up of national forests and the
Department of Defense has yet more of the border at the Barry Goldwater
Bombing Range.
In studies uncovered recently, data reveals that the management of
the border wilderness areas of Cabeza Prieta National Wildlife Refuge
and the Organ Pipe National Monument contributed to the establishment
of free flowing corridors of human and drug related smuggling
activities. From those corridors the expansion of similar activity has
spread like wild fire into the Tohono O'odam Indian Reservation, the
Buenos Aires National Wildlife Refuge, the Coronado National Monument,
and the various parcels of the Coronado National Forest.
The problems began when the Border Patrol instituted operations to
stem the tide of illegal entry in urban centers. Their idea was simple.
If such efforts could reduce the flow of illegal entry into populated
centers and push it into rural areas, interdiction and apprehensions
could be done easier. The campaigns worked well in Mexicali, Tijuana,
and El Paso, but failed miserably in Nogales. What was found was that
illegals from the Nogales operation found another soft point of entry.
The designated federal wilderness at Organ Pipe and Cabeza Prieta was
an immense opportunity for entry. As the Border Patrol and the Park
Service or Fish and Wildlife Service fought over jurisdiction, the
illegal flow of drugs and humans moved across the protected wilderness
in growing numbers.
Where there were no roads, the cartels and human smugglers made
roads. Where there were no trails, they made trails. Where there were
17 legal permanent roads in Organ Pipe there became 35 wildcat roads
where blacked out Jeeps ran north during the night. The Park Service
itself estimated that, in a representative one square kilometer out in
the Valley of the Ajos, an unsuspecting American family on a hike would
encounter 254 illegal foot trails that didn't exist when wilderness was
first established in the monument!
Until recently, the Border Patrol viewed the conflict as a turf
dispute with the Park Service. It was politics, and the demand by the
Park Service to stay out of wilderness areas was simply countered by
Border Patrol demands and threats for unrestricted and unconditional
access. What wasn't recognized was that the federal designation of
wilderness was the true culprit. The Park Service and the Border Patrol
were trying to accomplish their agency mission requirements while the
illegal hordes going north grew ever more confident and dangerous.
Word spread quickly. Mexican Highway 2 became the artery bringing
the armies of illegals to the wilderness border. A whole infrastructure
of supporting businesses sprung up to support the business of staging
and sending illegals north into the United States. Buses showed in
route videos preparing the illegals for desert survival and strategies
of evading American authorities. Runways for cartel aircraft ferrying
drugs to the border were established. Illegals at any given time in
Organ Pipe topped 20,000 individuals. Whole areas of the monument were
closed. It got so bad that signs were posted warning visitors to not
stop for dead bodies because they may be booby traps or decoys for
robbery.
While the wilderness experience in Arizona was being hailed by drug
cartels and American conservation groups, a different story was
occurring in Texas. Although Texans may not agree that they are exempt
from border violence and drug related activities, there is a difference
in the intensity of what is going on there as opposed to Arizona. The
data comes from Aerostat summaries. The Aerostat system provides radar
assistance for tracking cartel aircraft approaching the border from the
Mexican interior. The system uses a series of tethered blimps
strategically positioned to monitor the border.
Aerostat records in a representative time frame indicate that
cartel aircraft approach Texas about once every 17 miles of border. In
New Mexico, the rate is almost twice the Texas rate at once per nine
miles of border. In Arizona, the records run at least 10 times that of
Texas or once every mile and a half of border.
The drug seizure trend is similar. In Texas, the rate runs about
one incident in every 50 miles of border. In New Mexico, it is about
once every 3.5 miles of border and in Arizona the rate is once in less
than two miles of border. The latter represents a density of drug
seizures 25 times that of Texas and it isn't because the drugs in Texas
are not being interdicted. It is because the density of activity in
Arizona is just that much more intense and dangerous.
A question must be asked. What is happening in Texas that isn't
happening in Arizona? Three retired Border Patrol officials were posed
that question (current agents will not comment publicly on this
question without reciting policy).
Gene Wood, former sector chief at McAllen (Texas) said, ``You've
got private ownership of lands with a very aggressive citizenry in
Texas protecting their private property rights. They interact
immediately and continuously with the Border Patrol and the Border
Patrol has full and unencumbered access to everything, at any time, and
for any reason.''
When asked why the New Mexico results are intermediate between the
Texas and Arizona data, former Chief of Border Patrol Flight
Operations, Richard Hays, said, ``Like Arizona, there is a domination
of federal lands along the New Mexico border, but New Mexico still has
a residual population of a resident ranching community. Go on over into
Arizona and nearly the entire border is federally controlled land. The
ranchers have been eliminated or so decimated that they no longer can
maintain a dominant posture. They are gone in the monuments and the
wildlife refuges and the infrastructure that they built and maintained
is gone as well. The forest allotments are so gutted and reduced that
those folks are in a very precarious position. And, at the Tohono
O'odham (Reservation), the BIA has no idea how to control that deal.
You come to you own conclusions of what has happened in Arizona.''
When asked, retired Yuma Sector Chief and new Chairman of the
National Association of Former Border Patrol Officers, Jim Switzer,
said, ``New Mexico and Texas still have a vested, engaged, and resident
population of citizens who will protect their private property rights.
The Arizona counterparts have been largely eliminated.'' Asked to
clarify his remarks, he continued, ``Look at the data. Where there are
resident Americans who have private property rights at risk there
remains a working relationship with the Border Patrol. If there is
activity, the Border Patrol will be contacted and welcomed. That is not
the case where federal land agencies are present.''
The cost to America of removing cattle and ranchers from border
wilderness can start to be quantified by reviewing relative costs.
Without considering the Border Patrol budget or budget increases, what
are security expenses in a representative border wilderness? In fiscal
year 2009, the budget for the Organ Pipe's law enforcement component
for a park that shares 30 miles of Mexican border was $1.922 million.
In 2000, there was no such component of that budget.
With such a budget and 28 approved officers how is Organ Pipe
handling the illegal traffic? In another report, Organ Pipe management
commented on the fact that in the last six months, the mechanized drug
traffic had ``increased dramatically.'' With dramatic increases in drug
trafficking in a six month period in 2009 (when illegal human smuggling
was down dramatically) it would follow that the Park Service will ask
for and receive additional funding for 2010 and beyond.
Meanwhile, over in Texas the buffer created by ranchers who
actively defend their property rights provides a version of national
security that costs American tax payers nothing. What is now being
revealed is that if the same buffer had always been allowed to continue
uninterrupted in Arizona, the problem of illegal entry into the United
States would not be the problem it is today.
So, cattle free by '93, eh? The environmental movement succeeded in
reaching that goal on most of the Arizona border. This understanding of
border events should lead objective thinkers to want to investigate
what the expanded cost to America has been for such an idealistic and
reckless attack on American private property rights. On the American
border, the cost has been accumulated in terms of moral decay, loss of
American jobs, and national security breaches. The next big question is
what and how has it affected the American heartland?
______
Statement of Butch Borasky, Nye County Commissioner, District 4,
Pahrump, NV, on S. 940
Please support S 940 to direct the Secretary of the Interior to
convey to the Nevada System of Higher Education, certain Federal land
located in Clark and Nye Counties, Nevada.
Great Basin College in Pahrump would like to place a campus on said
land. Local developers here in Pahrump have pledged to help by way of
infrastructure to the property.
It would be really beneficial for Nye County to have a campus
locally. This would allow young people to stay in the community to
atend college and not have to commute or move out of the County to get
an higher education.
This will also greatly benefit the Bureau of Land Management's
(BLM) fire station adjacent to this property. We have been patiently
waiting for the past 4 years to see this happen.
Your help on this will be greatly appreciated.
______
Statement of Nicole Shupp, Pahrump Town Chairman, Pahrump, NV, on S.
940
This letter serves as strong support for the passage of s. 940.
This land upon conveyance will allow Great Basin College to expand and
create a college campus in our town, which will bring jobs to Pahrump
and give students another option for obtaining a higher education. If I
can be of any further assistance, please do not hesitate to contact me.
______
State of New Mexico,
Office of the Governor,
Santa Fe, NM, October 6, 2009.
Hon. Jeff Bingaman,
U.S., Senate, 703 Hart Senate Office Building,Washington, DC.
Dear Senator Bingaman: I am honored to support a historic land
conservation measure that has been many years in the making: the Organ
Mountains-Desert Peaks Wilderness Act. I appreciate the leadership that
you and Senator Udall demonstrated by introducing this important
legislation to protect many of the most important public lands in
Southern New Mexico. From the jagged spires of the Organ Mountains to
the petroglyphs in Broad Canyon, the Act will protect approximately
259,000 acres of wilderness, and an additional 100,000 acres as two new
National Conservation Areas. When enacted, these protected lands will
showcase some of the finest ecosystems and vistas that New Mexico's
Chihuahuan Desert has to offer, while making an important contribution
to our country's wilderness and National Landscape Conservation
System.This legislation has also brought together an impressive and
diverse group of citizens to help develop this proposal, with
organizations such as the Hispano Chamber of Commerce de Las Cruces,
Southwest Consolidated Sportsmen, and the League of Woman Voters
working hand in hand to push for its development. Through a multi-year
process, important agreements and compromises have been made to
facilitate border security, flood control, and access for all citizens.
The end result, the Organ Mountains-Desert Peaks Wilderness Act, truly
represents the best of community cooperation and legislative
leadership. As Governor of New Mexico, I am honored to lend my strong
support for the Organ Mountains-Desert Peaks Wilderness Act, and
encourage Congress to support its passage into law.
Sincerely,
Bill Richardson,
Governor.
______
National Association of Former Border Patrol Offices,
Brunswick, GA, October 22, 2009.
Hon. Jeff Bingaman,
Chairman, Energy and Natural Resources, Committee, 304 Dirksen Office
Bldg., Washington, DC.
Re:S. 1689
Dear Senator Bingaman: The issue of the designation of Wilderness
Areas as addressed by the subject bill is of great concern to the
National Association of Former Border Patrol Officers (NAFBPO). As the
name indicates, we represent a group which has several thousand years
of cumulative experience protecting our borders spread over more than
50 years. We know from that experience that designating a particular
area as a Wilderness has no impact at all on those who intend to
violate of border's security. Prohibiting the use of motorized vehicles
within such border areas without permitting the necessary law
enforcement agencies, including the Border Patrol, to carry out their
sworn duties, is tantamount to permitting a corridor for illegal
aliens, drug smugglers, and potential terrorists to exploit. We foresee
this same situation may be duplicated in the areas being proposed for
wilderness in S. 1689, Organ Mountains-Desert Peak Wilderness Act.
Information that we have points to the fact that there has not been
a public hearing scheduled to get input on this issue, nor has there
been an explanation of the anticipated impacts that wilderness
designations will have on border security. We feel the importance of
border security should be fully discussed with local communities so
that they are aware of the implications of wilderness designation. Our
organizations strongly suggests that a field hearing be held in Dona
Ana County, New Mexico, to fully develop final recommendations relative
to border security on lands proposed for wilderness protection.
Respectfully,
James S. Switzer,
Chairman.
______
Statement of Bob Reich, CEO, Lasen Air
I am speaking from the ranks of the nearly 800 member coalition
that opposes your legislation intending to designate wilderness on over
a quarter of a million acres of Dona Ana County lands. Please be
cognizant of the fact that this coalition of citizens, local businesses
and organizations, and is not a group of fringe radicals or overfunded
``environmental'' organizations. If you will observe the membership,
this group is arguably the very core of businesses and organizational
leadership that makes Las Cruces, Deming and this region of the state
work. In my opinion, this coalition has been minimized, and any
assumption that you have that it isn't observing what is going on is
strictly in error.
These cities and this region of the state cannot be hamstrung by an
environmental movement that has an agenda that is not being honestly
portrayed. At a minimum, your legislation eliminates the majority of
community access to the remaining points of higher elevation in the
county. Already, the various branches of the DOD, Fish and Wildlife,
and NMSU have a lock on the remainder of the Organs, the San Andres,
and points east. As the legislation stands your actions will place
unnecessary pressures on lands outside the withdrawn areas that will
receive the diverted traffic. As a concerned leader, please recognize
the hypocrisy of land stewardship that creates enforcement free
corridors for drug runners and illegals.
Throughout this debate, the press and others have continued to
refer to the objection to this plan as the ``ranchers' stand'' or the
``ranchers' plan''. That will lose its validity as this process
concludes. This is a Dona Ana County citizen's coalition and the number
of ranchers is a small percentage of the opposition. Your actions,
however, will ultimately contribute to the reduction of the already
small number of ranchers and the loss of a major portion of our New
Mexico heritage.
Instead of total withdrawal and locking most of the citizens of
Dona Ana county (and state and federal law enforcement officials) out,
we have continually proposed responsible joint use that will preserve
the cultural, historic, and natural features of the area and allow use
of the area by the majority of the people. I stand perplexed as to your
insistence to appeal to a network of organizations and people who have
ties to such radical ideology and one sided agendas. This will
ultimately be an issue that will be exposed and understood. Our group
may not stand with signs in front of your office in opposition, but our
group will eventually be heard in more basic forms of due process.
In the past you have consistently stood up for the people of New
Mexico and the United States of America, we are hoping that you will
reconsider your position on this vital issue and create a 11win-win''
situation for all of us. You still have an opportunity to make positive
political strides by recognizing and coming forth with modifications
that allow for responsible joint use of the areas rather than
wilderness that effectively shuts the American people out, and creates
clear corridors for illegals and drug runners.
Thank you for Your time and consideration,
______
State of Alaska,
Department of Natural Resources,
Anchorage, AK, October 6, 2009.
Hon. Ron Wyden,
Chairman, U.S. Senate, Subcommittee on Public Lands and Forests,
Washington, DC.
Hon. John Barrasso,
Ranking Member, U.S. Senate, Subcommittee on Public Lands and Forests,
Washington, DC.
Dear Senators Wyden and Barrasso: The State of Alaska provides the
following comments on S 522, the Salmon Lake Land Selection Resolution
Act and S 881, the Southeast Alaska Native Land Entitlement
Finalization Act. Both bills are scheduled for a hearing before the
Subcommittee on Public Lands and Forests on October 8, 2009.
S 522--Salmon Lake Land Selection Resolution Act.--The state
supports passage of this important legislation that will equitably
resolve competing land selections surrounding Salmon Lake on the Seward
Peninsula in Alaska. The legislation ratifies an agreement between the
Bering Straits Native Corporation (BSNC), the US Bureau of Land
Management (BLM), and the State of Alaska to resolve land selected
under the Alaska Native Claims Settlement Act (ANCSA) and the Alaska
Statehood Act. The three parties signed the agreement on July 18, 2007
after several years of negotiation. Under the agreement, the state and
BSNC will acquire land adjacent to Salmon Lake and the BLM will retain
land important for public access and a campground. The agreement
recognizes both the lake's importance to the public for recreation and
its importance to BSNC shareholders for subsistence, cultural and
recreational values. We are not aware of any opposition to this
legislation.
S 881--The Southeast Alaska Native Land Entitlement Finalization
Act.--The state continues to support Congressional action to resolve
the outstanding land entitlement of the Sealaska Native Corporation.
Sealaska has waited too long to receive a fair entitlement under ANCSA.
The state agrees that the land currently available to Sealaska under
provisions of ANCSA does not provide Sealaska with an adequate and
equitable land base. The pool of economic development land that would
be made available under S 881 provides Sealaska with land that is more
suitable for timber harvest than the lands it would acquire absent this
legislation. In addition, the land currently available to Sealaska
contains areas with high public values for watersheds and recreation.
These lands will remain in public ownership under S 881.
In reviewing S 881 as currently drafted, we have identified some
concerns regarding the need to protect public access across parcels to
be conveyed to Sealaska, impacts to management of adjacent federal
lands, and community concerns regarding certain specific parcels.
Regarding public access, the Economic Development Lands need to provide
sites for public access to and from the road system to the shoreline,
as provided for in easements reserved under ANCSA Section 17(b). The
Traditional and Customary Trade and Migration Routes to be conveyed
under Section 3(b)(2)(A)(11) need to be subject to ANCSA Section 17(b)
or similar provision to ensure public access across these long, narrow
conveyances. These Routes also need to exclude tidelands, submerged
lands and navigable waters.
We also would like to see the legislation crafted to minimize
disruption to the existing, successful federal land transfer program in
Alaska that is focused on largely completing land entitlements owed to
all ANCSA corporations as well as the state.
The state is also concerned that S 881 (Section 5(e)(2)) takes an
unnecessary and problematic step in defining all ANCSA lands in Alaska
as being ``tribal lands.'' The suggested change is directly contrary to
section 4 of ANCSA which eliminated claims to tribal lands. Directly or
indirectly modifying ANCSA is far more than a ``technical correction,''
and raises fundamental land ownership and land management questions for
the State of Alaska. The savings clause does nothing to address the
immediate shift in land management authority, and merely confuses an
already complicated land status question. See Alaska v. Native Village
of Venetie Tribal Gov't, 522 U.S. 520 (1998).
We are willing to work with Sealaska and the Committee to address
these concerns. We commend the subcommittee for bringing these bills
forward for consideration and we respectfully request that this letter
be included in the hearing record. Thank you for the opportunity to
comment on these important bills that will benefit Alaskans.
Sincerely,
Thomas E Irwin,
Commissioner.
______
Alaska Federation of Natives, Inc.,
Anchorage, AK, November 2, 2007.
Hon. Nick Rahall,
Chairman, House Committee on Natural Resources, U.S. House of
Representatives, Washington, DC.
RE: HR 3560, to provide for the completion of Sealaska Corporation's
Land Selection under the Alaska Native Claims Settlenient Act.
We are writing oa behalf of the Alaska Federation of Natives (AFN)
to express AFN's support for H.R. 3560, Sealaska Corporation's
legislative proposal to finalize its land entitlement conveyances. AFN
is the largest statewide Native organization in Alaska. Its membership
includes over 200 villages (both federally-recognized tribes and
village corporations), the 13 regional Native corporations established
under the Alaska Native Claims Settlement Act (ANCSA), and 12 regional
nonprofit and tribal consortiums that contract and run federal and
state programs.
In 1971, Congress enacted ANCSA to recognize and settle the
aboriginal clainig of Alaska Natives to their traditional homelands by
authorizing the establishment of Alaska Native Corporations to receive
and manage lands and funds awarded in settlement of the claims of
Alaska Natives. The purposes of ANCSA were to settle the land claims of
Alaska-Natives and to provide them with a means to pursue economic
development, and create sustainable economies for the benefit of
Alaska's Native people. However, more than 35 years post-ANCSA, the
land conveyances have yet to be completed.
Since 1971, many of the Alaska Native Corporations have become
successful and powerful economic engines within their regions and
throughout the State of Alaska. Sealaska Corporation is the single
largest private employer in Southeast Alaska, providing from 200 to 400
part-time and full-time jobs, annually, and contributing as much as $40
million, annually, to the Southeast Alaskan economy through its logging
contracts, road building activities, and other timber-related
activities. Sealaska also provides a significant benefit to Alaska
Natives. throughout the State of Alaska through its annual 7(i) revenue
sharing contributions, totaling over $300 million since Sealaska began
operating. Some Alaska Native Corporations outside of Southeast Alaska
have expressed extreme gratitude to Sealaska because the 7(i) payments
that they have received have, in many instances, kept the Corperations
out of bankruptcy.
Sealaska would now like to engage in comprehensive land entitlement
and conservation initiative, which would allow it to complete its land
entitlement by making cultural and economic land selections outside of
the original withdrawal areas, and in return would allow removal of the
encumbrance created by the withdrawal of lands for Alaska Native
selection in Southeast Alaska. If Sealaska does not receive conveyance
of all of the lands to which it is entitled in the near term, the
primary economic activity of Sealaska--logging--will cease in the near
term. That will impact Southeast Alaska's Native people, the Southeast
Alaska economy, and the Alaska Native Corporations throughout the State
that have come to rely upon Sealaska's 7(i) contributions.
Therefore, we strongly support the enactment by the United States,
Congress of a bill that would allow Sealaska to complete its ANCSA
land, entitlements, thereby enabling it to continue to help meet the
economic needs of the Native people of Southeast Alaska and Alaska
Native Corporations throughout the State of Alaska.
Please do not hesitate to contact us if you have any questions
regarding our position on this important legislation.
Sincerely,
Albert Kookesh,
Co-Chair of the Board.
Tim Towarak,
Co-Chair of the Board.
______
Alaska Forest Association, Inc.,
Ketchikan, AK, October 9, 2009.
Hon. Lisa Murkowski,
U.S. Senate, 322 Hart Building, Washington, DC.
Dear Senator Murkowski, The Alaska Forest Association (AFA)
strongly supports the Sealaska Land Entitlement Legislation S-881. The
AFA has represented the timber industry across Alaska for over 50-
years. During the 1960s, 70s, 80s, and early 1990s the industry
provided several thousand direct jobs and thousands more indirect jobs,
but over the last fifteen years the employment in our industry has
declined primarily as a result of an inadequate supply of timber.
Our industry, which is comprised entirely of small businesses,
includes landowners, logging and road building companies and
manufacturing companies. These businesses work together in a symbiotic
relationship along with our supporting industries--tug and barge
operations, equipment and fuel suppliers, log and lumber scaling
services, etc. Many of our supporting industries will be unable to
survive the loss of Sealaska's operations. The domino effect that would
follow the industry collapse would be felt across Southeast Alaska and
would be most harsh in the small communities.
The AFA Board of Directors has consistently supported Sealaska's
efforts to resolve their land entitlements and we continue to do so.
Thank you for introducing this vital legislation.
Sincerely,
Brian Brown,
President.
Bert Burkhart,
Vice-President.
Wade Zammit,
Treasurer.
Kirk Dahlstrom,
Director and past President.
______
Statement of Steven C. Borell, P.E., Executive Director, on H.R. 3560
The Alaska Miners Association is writing in support of H.R. 3560,
the ``Southeast Alaska Native Land Entitlement Finalization Act''. This
legislation will allow Sealaska Corporation to finalize its land
entitlement granted user the Alaska Native Claims Settlement Act
(ANCSA).
When ANCSA passed in 1971, Sealaska and the other Native
Corporations were given the right to select lands near their villages
and other areas where their respective peoples had lived. However,
before the Corporations could complete their selections, various
federal withdrawals occurred that greatly restricted their selections.
Then in 1980 much of their historic land areas became part of various
federal conservation system units and were thereby placed totally off
limits for selection. The result was that there was not enough land
available that would qualify for the Sealaska entitlement.
H.R. 3560 addresses this situation by exchanging some lands now
held by Sealaska for other lands now owned by the federal government.
This would provide closure regarding Sealaska's ANCSA land entitlement.
It would correct some of the inequitable limitations on Sealaska's land
selections by allowing it to select its remaining land entitlement from
federal lands outside the designated withdrawal areas, including sites
with sacred, cultural, and historical significance. The changes will
also provide an opportunity for Sealaska to maintain a sustainable
economy and to further economic and employment opportunities for
Sealaska shareholders.
Thank you for the opportunity to comment on this important
legislation.
______
ANCSA Regional Association,
Anchorage, AK, June 30, 2008.
Hon. Lisa Murkowski,
U.S. Senate, 709 Hart Senate Office Building, Washington, DC.
RE: Sealaska Land Entitlement Legislation
Dear Senator Murkowski: I am writing to you on behalf of the Alaska
Native Regional Corporation CEOs to express support for Sealaska
Corporation's legislative proposal to finalize its land entitlement
conveyances. As you are aware, Sealaska has yet to complete its Alaska
Native Claims Settlement Act (ANCSA) land conveyances, 36+ years post-
ANCSA, because of poorly contemplated land withdrawals in Southeast
Alaska. Our organization strongly supports the fulfillment of the
promises of ANCSA to create economically sustainable corporations for
the benefit of Alaska Native shareholders.
Representatives from Sealaska have briefed the Regional CEOs on the
land entitlement legislation. The legislation clearly provides
opportunities for economic development and cultural preservation. Not
only would there be economic and cultural benefits to the Native people
of Southeast Alaska through this proposal, but there would also be
economic benefits to the Native people throughout the State of Alaska
because of the revenue sharing requirements of ANCSA. Moreover, many of
our regions throughout the State are seeing a loss of residents from
the rural communities. The Sealaska proposal would be a positive step
towards slowing this trend in Southeast, Alaska. We, therefore, express
support for any legislation on this matter.
We urge you to pursue this important legislation. If you have any
questions regarding our position, or need our assistance to secure
enactment in the future, please do not hesitate to contact us.
Sincerely,
Vicki Otte,
Executive Director.
______
Statement of Heather Richter, President, Edna Bay Community, on S. 881
The community of Edna Bay, located on the northwest side of Prince
of Wales Island in Southeast Alaska. would like to present testimony in
opposition to the transfer of 32,000 acres of public land on Kosciusko
Island into the private ownership of Scalaska Corporation.
Edna Bay is a remote subsistence based community established by a
State of Alaska land sale in 1982. Since it is not connected to any
other road system. residents depend entirely on the access they have
historically had to the public lands on this island for their daily
needs, which include subsistence harvesting, personal use timber and
building materials. as well as economic opportunities.
Everyone understands the importance of completing ANCSA, and the
state and federal government commitment to the support of economic
prosperity for the native peoples of Alaska. The problem with the
current legislation in it's pursuit of these goals is the lop sided
representation that is happening in the process. Our community has been
left without representation on all levels. Our district representative.
Senator Albert Kookesh is chairman of the board for Scalaska.
Representative Thomas is also a member of the board of directors.
Senators Murkowski and Begich are co-sponsors for this bill on behalf
of Sealaska. and Congressman Young has expressed his singular support
of Senlaska through his introduction of HR 2099.
Our representatives should he striving to create a more balanced
approach to resolving Senlaska's land entitlements. A solution should
represent equitable treatment for all people living in Southeast
Alaska. The current path will lead to the certain demise of several
subsistence dependent communities on Prince of Wales Island. If
Sealaska chooses to pursue their land transfers outside of the
withdrawal areas set aside for them by Congress, they should have to do
so in cooperation and working coexistence with other residents of
Southeast Alaska. Corporate take over should never be allowed to become
the established way of doing business in the Tongass National Forest.
As we have no representation in regards to this bill, we are asking
the members of this committee to give careful consideration to
Sealaska's request. In the interest of the continued prosperity for all
who live in Southeast Alaska. we are asking you to vote no on S.881.
Thank you for your time.
______
Community of Elfin Cove Non-Profit Corporation,
Elfin Cove, AK, December 31, 2008.
Hon. Ed Schafer,
Secretary, Department of Agriculture, 1400 Independence Avenue S.W.,
Washington, DC.
The Community of Elfin Cove Non-Profit Corporation membership has
reviewed and discussed the proposed land selections as part of Senate
Bill 53651 that you introduced. We have serious concerns about the
lands proposed for selection in the area near Elfin Cove.
While we support your efforts to remedy the longstanding problems
with the Alaska Native Claims Settlement Act in regard to land claims
for Sealaska, we do not support the inclusion of Lacy Cove, Point
Lavinia and Inian Peninsula East. These areas have a long history of
stewardship by the residents of Elfin Cove, Inian Islands, Idaho Inlet
and Port Althorn. The adjacent waters are historically important
commercial fishing waters.
The residents of Elfin Cove have developed an effective working
relationship with the Hoonah Ranger District of the US Forest Service.
The current Forest Service administrative policies have been effective
in preserving the forest supporting subsistence access and the
development of tourism.
We are concerned that dividing this contiguous area of wilderness
will significantly disrupt the current subsistence access in the area.
These lands are important sources of local subsistence activity.
The Community of Elfin Cove respectfully requests that as this
important land settlement process moves forward that Lacy Cove, Point
Lavinia, and Inian Peninsula East be excluded from the selection.
We have attached the resolution* passed at our most recent
community meeting. We would be available to provide additional comment
regarding S3651.
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* All attachments have been retained in subcommittee files.
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Sincerely,
Gordy Wrobel,
Chairman.
______
Statement of Gregory and Carin Richter, Fisherman's Cove Fish Camp,
Naukati, AK
Once again, my family find ourselves writing a letter for a
different number bill, stating that we say NO to Kosciusko Island being
part of Sea Alaska owned landed. This is my children's inheritance It
is our privately owed property already. Lot TEN (10), U.S Survey 2615,
situated on the East side of Fisherman's Harbor in Lot (5) and (6),
Section 22, Township 68 South, Range 75 East, Copper River Meridian,
Kosciusko Island, Alaska, Cape Pole. We depend upon the subsistence
from hunting and fishing every year to feed ourselves and for our lodge
business and for our business guests. With this proposed bills we would
lose these rights. It would take away the from the value of the
property due to the fact that Sea Alaska would own the property between
Edna Bay and Cape Pole cutting off our supply roots. We own a hunting
fishing lodge in Cape Pole. Considering the statement Sea Alaska made
about a right to cross their property, would not be convened should we
sell. In this economy crisis, the only econoirtical and real help in my
children's life's is this land that belongs to us. When we die, to help
them carry out their lives and families to come is this land in the
last frontier Alaska, where they can live off of and work hard to
survive. Why is this a threat again to my children and I again.
I realize how busy the government must be at this economical crisis
and state of depression but our family would ask you for a letter of
response. That would touch base with us and realize that you are
listening to private land owners and would make us feel valid and
secure. Attached are the previous letters with all of our concerns.
______
Statement of David Love, Glacier Grotto President; Timothy Heaton,
Paleontologist and NSS Fellow; Kevin Allred and Carlene Allred, Glacier
Grotto and NSS members; Steve Lewis, Conservation chair-Glacier Grotto,
NSS member; Rachel Myron, Glacier Grotto and NSS member
I am writing this letter on behalf of the membership of the Glacier
Grotto listed below. The Glacier Grotto is a statewide chapter of the
National Speleological Society (NSS) dedicated to the discovery,
mapping and conservation of the karst and cave resources of the state
of Alaska. The Glacier Grotto membership is very concerned about the
new land selections that Sealaska Corporation has requested under the
Alaska Native Claims Settlement Act as introduced initially as House
Bill 3560 by Representative Don Young and reintroduced in Senate Bill
(SB) 3651 by Alaskan senator Lisa Murkowski.
First, definition of the type of landscape the Glacier Grotto and
NSS are particularly concerned about:
Karst topography is a landscape shaped by the dissolution of a
layer or layers of soluble bedrock, usually carbonate rock such as
limestone or dolomite. Due to subterranean drainage, there may be very
limited surface water, even to the absence of rivers and lakes. Many
karst regions display distinctive surface features, with sinkholes or
dolines being the most common. However, distinctive karst surface
features may be completely absent where the soluble rock is mantled,
such as by glacial debris, or confined by superimposed non-soluble rock
strata. Some karst regions include thousands of caves, even though--
evidence of caves that are big enough for human exploration is not a
required characteristic of karst.\1\
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\1\ Ford, D. and Williams, P. 2007 Karst Hydrology and
Geomorphology John Wiley and Sones Ltd. 562 pp.
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It should be noted that current land management practices on
federal lands underlain by carbonate rock in Alaska, especially on the
Tongass National Forest, manage these karst landscapes for the unique
hydrological, speleological, archeological and paleontological
resources underlying the surface of these landscapes as well as the
biological community that covers and protects their surface. These
areas contain unique biological microhabitats, for example, freshwater
streams sourced or passing through karst bedrock produce significantly
more invertebrates which feed a larger number of salmon than do non-
karst systems, thus providing greater opportunity for subsistence,
commercial and sport fishing harvest.\2\ Karst regions in Southeast
Alaska contain irreplaceable archeological and paleontological
deposits, internationally significant cave and karst geologic features,
surprising hydrological interconnectedness and remote recreational
opportunities like few other places on the planet.\3\ Archeological and
paleontological research in Southeast Alaska has not only redefined how
indigenous people arrived and colonized the Americas, but has also
provided a picture of the plant and animal communities present in this
region for the past 40,000 + years. The potential for additional
paleontological and archeological discovery in this region is extensive
and many of the cave-containing karst lands within the Sealaska
selections have not been thoroughly inventoried. Each year, this region
attracts researchers and cave explorers from around the country and
worldwide. To date, the US Forest Service (USFS) land management
practices associated with karst lands in Southeast Alaska have been a
model for other agencies in other parts of the world.\4\
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\2\ Bryant, M.D.; D.N. Swanston; R.C. Wissmar; and B. E. Wright.
1998. Coho Salmon Populations in the Karst Landscape of Northern Prince
of Wales Island, Southeast Alaska. Transactions of the American
Fisheries Society 127:425-433, 1998
\3\ Griffiths, P.; Aley, T.; Worthington, S.; Jones, W. 2002. Karst
Management Standards and Implementation Review, Final Report of the
Karst Review Panel, Prepared for USDA Forest Service, Tongass National
Forest, Submitted to MWH (Montgomery Watson Harza) under the terms of
USDA Contract 53-0116-255901, 27 pp. and appendices.
\4\ Baichtal, J.F. 1997. Application of a Karst Management
Strategy; Two Cases Studies from theTongass National Forest,
Southeastern Alaska; The Challenges of Implementation. In: Proceedings
of the 1997 Karst and Cave Management Symposium 13th National Cave
Management Symposium Bellingham, Washington and Chilliwack and
Vancouver Island, BC, Canada, October 7-10, 1997, Bellingham,
Washington. Edited by Robert R. Stitt, pp. 4-11.
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Three of the areas suggested for conveyance to Sealaska occur in
some of the most highly developed karst landscapes in Alaska
(containing features that are unique internationally). These areas are:
Northern Prince of Wales Island, Tuxekan Island and Kosciusko Island.
Below is some Geographic Information System (GIS) analysis provided by
James Baichtal, Forest Geologist of the Tongass National Forest,
relating to HB 3560:
`` . . . Kosciusko Island: Total area of Sealaska selection
equals 25,882 acres of which 23,839 acres (92%) are underlain
by karst. We (USFS, entered by D. Love for clarification) have
inventoried some 1090 karst features we consider significant
within the proposed land selection, of which there are 145
caves that have been designated significant\5\ or most likely
would be found to be significant when nominated. The 2008 TLMP
included a 7678 acre Geologic Special Area encompassing Mount
Francis and karst areas to the south with a boundary change to
include the results of tracer dye studies. The Sealaska
Corporation proposal includes 5,708 acres of the 7,678 acres or
74% of the Geologic Special Area. We have not inventoried this
area but karst features may exceed a density of thousands per
square mile.
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\5\ ``Significant'' caves are defined by the FCRPA as possessing
one or more of the following: unique biota, cultural, historical or
archeological resources, geologic, mineralogic or paleontologic
resources, hydrologic systems or water important to humans, biota or
cave development, recreational value, educational or scientific values
or are located within special management areas. See Federal Register
[16 U.S.C. 4301-4309]
NPOW: Total area of Sealaska selection equals 32,482 acres of which
16,435 acres (51%) are underlain by karst. We have inventoried some 161
karst features we consider significant within the proposed land
selection, of which there are 23 caves that have been designated
significant or most likely would be found to be significant when
nominated. The Sealaska proposal includes 1,651 acres of the Geologic
Special Areas found in the 2008 TLMP. The Sealaska proposed land
selection also includes the Port Protection Watershed identified by
through a Village Safe Water Grant and tracer dye studies.
Tuxekan Island: Total area of Sealaska selection equals 15,758
acres of which 11,936 acres (76%) are underlain by karst. We have
inventoried some 339 karst features we consider significant within the
proposed land selection, of which there are 30 caves that have been
designated significant or most likely would be found to be significant
when nominated. There are no Geologic Special Areas on Tuxekan Island.
In summary, the Sealaska selection on the Thorne Bay Ranger
District where there are karst landscape concerns equals 74,112 acres,
52,210 acres underlain by karst (71%). We have a total of 1,590 karst
features inventoried of which there are 198 caves that have been
designated significant or most likely would be found to be significant
when nominated. Many of these areas have such a high density of
features that we have just never inventoried them so the actual number
of caves from areas like Mount Francis, Flicker Ridge and the Calder
Area would he much higher. The Sealaska proposal includes 7,359 acres
of Geologic Special Areas . . . ''\6\
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\6\ Baichtal, James F., Forest Geologist, Tongass National Forest,
Memo to Scott Fitzwilliams, RLMH Staff Officer, dated March 13, 2003
Review of the Proposed Sealaska-Tongass National Forest Land Exchange
Concerning Karst and Cave Resources
---------------------------------------------------------------------------
Although the Glacier Grotto agrees that the tribes of Southeast
Alaska (i.e-now represented by the Sealaska Corporation) have the right
to lands promised under ANCSA, the Glacier Grotto does NOT believe that
House Bill 3560 or Senate Bill 3651 should be passed unless changes are
made to the bills. This letter is in opposition to this bill asking for
additional withdrawals of public US National Forest lands outside of
the original ANCSA withdrawal areas if these new withdrawal areas
overlie karst terrain and/or caves. Refer to Sec 3 (b) (1), page 19 of
the Senate Bill 3651 authorizing Sealaska to select lands categorized
as ``Economic Development Lands'' (see the map entitled ``Sealaska
ANCSA Land Entitlement Rationalization Pool, dated March 6, 2008 and
labeled Attachment A). Karst landscapes and caves underlying lands
selected by Sealaska currently receive protection from damage under
federal laws. These selected areas include and/or overlie karst
landscapes and/or cave systems, and the Glacier Grotto and members of
the NSS believe that these lands should not be developed but should be
protected as they currently are under the FCRPA. Since no State cave
resource protection law exists for State or privately owned lands,
these areas should not be allowed to be managed under (non-existant)
State law, but should continue to be managed under the FCRPA. In
addition, if any of the 'Traditional and Customary Trade and Migration
Routes'', ``Native Futures Sites'' and ``Sacred, Cultural, Traditional
and Historic Sites'' overlie karst terrain or cave containing bedrock
then these areas should also be removed from the selections and
continue to be managed under USFS and the FCRPA.
While the membership of the Glacier Grotto signed below would like
to believe that Sealaska Corporation would protect the karst landscapes
and cave systems underlying the land selections in these bills, this
may be an unrealistic expectation given Sealaska's past poor forest
management (ex.-clear-cut logging on steep hillsides) on other lands it
currently owns. Forests overlying karst in some of the new selections
(``economic development area'') are oldgrowth stands that were not
harvested in USFS timber sales because of concerns about impacting the
interconnected ``high vulnerability'' karst bedrock below. As outlined
by James Baichtal's work above, these areas contain a large number of
fragile cave systems, undelineated hydrologic systems and fragile soils
supporting unique plants and animals. Transfer of these areas to
Sealaska would endanger these unique cave resources and karst
landscapes.
Further clarification of karst management on federal and state
lands provided by James Baichtal, Forest Geologist, Tongass national
Forest, is provided below:
`` . . . The authority for management of the karst lands and
the associated caves on public lands comes from the Federal
Cave Resources Protection Act (FCRPA) of 1988, The Antiquities
Act of 1906, the Federal Land Policy Management Act of 1976
(FLPMA), and in Forest Service Management (FSM) directions
2356, 2361, and 2880, and 36 CFR 261 and 290. Subsequently, in
the 2008 Tongass Land Management Plan, standards and guidelines
were developed to protect the karst and cave resources found on
the Tongass National Forest. For State of Alaska lands
currently there is no ``Cave Protection Act'' in the State of
Alaska (http://www.caves.org/committee/conservation/
)(Conservation Laws and Policy, Cave laws and Policies) nor
does the Forest Practices Code contain any provisions for
protection of those resources from timber harvest, road
construction and/or quarry development as stated by the Alaska
State Division of Forestry (DOF) website at http://
foresnyalaska.gov/forestpractices.htm . Neither the Alaska
Forest Resources and Practices Act as published in 2000 nor the
Alaska Forest Resources and Practices Regulations as published
in 2000 contained language addressing karst or cave resources.
In a Memorandum from the Department of Natural Resources dated
March 6, 2003 which outlines the Coastal Region's Southern
Southeast Area Five-year Schedule of Timber Sales for the
period of January 1, 2003 through December 31, 2007, the DOF
clearly states its position. In the description of the 2005
proposed El Cap Timber Sale, the DOF states, ``The ADNR does
not recognize karst topography as a significant resource to be
managed on the State's limited land base in southeast. The DOF
will protect karst formations that effect water quality as per
the Alaska Forest Resources and Practices Act and Regulations.
If significant recreational activity is found to be dependent
on a karst resource, it will be taken into account during the
design and FLUP (Forest Land Use Plan) process for a proposed
timber sale.'' This memorandum can be accessed at the following
website: http://www.dnr.state.ak.us/forestry/pdfs/
fysts2003prelirndoc.pdf
Therefore, it can be assumed that if the ownership of these karst
lands were transferred to Sealaska, no measures are in place to ensure
their protection. ``Section 2(b)(1).'' of the FCRPA, Findings, Purpose,
and Policy states that, ``The purposes of this Act are ``to secure,
protect, and preserve significant caves on Federal lands for the
perpetual use. enjoyment, and benefit of all people''. It would be
difficult to make a case that disposing of land containing significant
caves (or those that may meet the criteria) meets this purpose.
There is also a planning and public participation section of the
Act (Sec. 4. (b) (C)(1)(2) The Secretary shall-- ``(1) ensure that
significant caves are considered in the preparation or implementation
of any land management plan if the preparation or revision of the plan
began after the enactment of this Act; and (2) foster communication,
cooperation, and exchange of information between land managers, those
who utilize caves, and the public.'' These sections require
consideration of cave resources and assure a public process is
followed.
Further more, the FCRPA Sec 4(a)(11) states ``-- . . . including
management measures to assure that caves under consideration for the
list [of significant cave designation] are protected during the period
of consideration.'' Therefore, I believe that if a cave is known or is
nominated under the provisions of the Act, we have the responsibility
to follow up and either designated it as a significant cave or make the
decision that it does not meet the provisions of the law, and therefore
not significant. Until this decision is made, known caves and nominated
caves should receive the same protection as significant caves and we as
an agency should not knowingly support an action that could jeopardize
that resource.
The karst lands of the Tongass National Forest and the caves and
all the resources within them belong to ``all people''. These karst
lands are national treasures containing caves and karst features of
international significance. Federal land managers ( . . . and all
reasonable people, the Glacier Grotto would argue...) have been charged
with the ``perpetual'' protection of these resources. Knowingly
transferring the ownership of these caves to a private entity with no
provisions for protection in place, in our opinion, does not meet the
purpose of the FCRPA. Based on the past liberal management strategies
and practices on Sealaska lands, these resources would be irrevocably
damaged and the resources within them and what we may learn from them
threatened or lost . . . ''\6\
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\6\ Baichtal, James F., Forest Geologist, Tongass National Forest,
Memo to Scott Fitzwilliams, RLMH Staff Officer, dated March 13, 2003
Review of the Proposed Sealaska-Tongass National Forest Land Exchange
Concerning Karst and Cave Resources
---------------------------------------------------------------------------
Glacier Grotto membership believes that there should be no transfer
of karst lands without restrictions on development activities above and
around these karst areas and with provisions allowing unlimited access
for additional exploration and mapping, scientific study, and complete
protection as if these areas were administered public lands protected
by the Federal Cave Resources Protection Act . We simply do not believe
that the selected ``economic development lands'' will be managed in any
other way than clearcut logging, no matter what Sealaska states is
their new land management strategy. As to management of the 2004+
CulturanacrecVnistoric Sites selected, Sealaska currently does not have
an archeologist on staff, or a workable management plan for these sites
that would protect the sites even for their own Native membership.
Also, SB 3651, Section 18 (A-C) removes the ``protective covenant''
that was in the original ANCSA legislation from past and future
14(h)(1) ANCSA sites that would have required that the sites be managed
to federal standards. What are Sealaska's intentions? Sadly, we do not
believe that Sealaska would protect the karst landscape, unique cave
ecosystems and associated biota, hydrological systems (some assocated
with community water supplies), cultural and archeological sites,
paleontological sites, and recreational opportunties in the same manner
that these resources are currently being protected under federal
management. We ask that the sponsoring members of the House and Senate
consider our concerns regarding this bill. We will gladly provide more
information and testimony, if necessary, to help in modifying or
rewriting this bill such that it would protect the nationally and
internationally unique karst resources in Southeast Alaska. Thank you
for your time.
Sincerely,
______
Haida Corporation,
Hydaburg, AK.
Hon. Lisa Murkowski,
U.S. Senate, 709 Hart Senate Office Building, Washington, DC.
RE: Supporting Sealaska Corporation's Land Entitlement Legislation,
H.R. 3560, Haa Aani
Dear Senator Murkowski: Haida Corporation, the Alaska Native claims
Settlement Act (ANCSA) village corporation for the community of
Hydaburg, supports H.R. 3560, Sealaska Corporation's legislative
proposal to finalize its land entitlement conveyances. These
conveyances were originally contemplated under ANCSA, but more than 35
years post-ANCSA, they have yet to be completed.
Sealaska representatives met with our community on September 14,
and fully briefed us on the land entitlement legislation. Haida
Corporation sees the economic and cultural benefits of this legislation
and understands the importance of finalizing the ANCSA land entitlement
conveyances, and therefore, is pleased to expresses its support for
this legislation.
If you have any questions regarding our position ont his important
legislation, please do not hesitate to contact us.
Sincerely,
Lisa Lang,
President.
Vincent Jameson,
Chairman.
______
Huna Totem Corporation,
Juneau, AK, November 16, 2007.
Hon. Lisa Murkowski,
U.S. Senate, 709 Hart Senate Office Building, Washington, DC.
RE: Supporting Sealaska Corporation's Land Entitlement Legislation, HR
3560, Haa Aani
Dear Senator Murkowski: Huna Totem Corporation, the Alaska Native
Claims Settlement Act (ANCSA) village corporation for the community of
Hoonah, supports H.R. 3560, Sealaska Corporation's legislative proposal
to finalize its land entitlement conveyances. These conveyances were
originally contemplated under ANCSA, but more than 35 years post-ANCSA,
they have yet to be completed.
Sealaska representatives met with our Board of Directors on
September 22, and fully briefed us on the land entitlement legislation.
Huna Totem sees the economic and cultural benefits of this legislation
and understands the importance of finalizing the ANCSA land entitlement
conveyances, and, therefore, is pleased to expresses its support for
this legislation.
If you have any questions regarding our position on this important
legislation, please do not hesitate to contact us.
Sincerely,
Robert Wysocki,
Chief Executive Officer.
Albert W. Dick,
Chairman of the Board.
______
Statement of Hayden and Bonnie Kaden, Gustavus, AK
My wife and I are writing to express our opposition to the Sealaska
bill, S 881/HR 2099, as it is currently drafted. We firmly believe that
such a bill must be part of a comprehensive approach to resolving long-
standing Tongass National Forest issues. The Tongass is a complex eco-
system where decisions made on one issue often have significant impacts
throughout the forest and on the communities, residents and industries
which depend on the general health of the forest.
First, let me say that we are 42 year residents of the Tongass. I
am a retired attorney and worked with Senator Begich's father, Nick,
when I was on the legal staff of the Alaska Legislative Affairs Agency.
I also later served as legal counsel to both the House and Senate
Judiciary Committees in the Alaska Legislature: My wife, Bonnie, was an
assistant to the Alaska Commissioner of Education in the late 60's and
early 70's and later taught school in Gustavus, ending her career as
principal of the Gustavus School from 1988--1993. During this same
period we started and ran an eco-tourism business in Southeast Alaska
using many areas of the Tongass that are the subject of this proposed
legislation. In fact, we were early pioneers of the concept of eco-
tourism on the Tongass National Forest demonstrating the principles of
minimum impact camping and wilderness recreation and working with the
Forest Service to plan and develop recreational opportunities
throughout the forest. Thus, I believe that we speak with a wealth of
on-the-ground knowledge.
We are concerned that by giving away high value public lands, lands
that belong to all Americans, to private, for-profit corporations, we
are locking up those lands and pretty much forever locking out the
public, both Native and non-Native alike. Especially, we have seen
firsthand the rape and pillage effects of clearcut logging on other
Sealaska lands, more or less permanently ruining those lands for
multiple uses.
Some potential consequences of this legislation include problems
with public access to traditional community hunting, fishing, and
recreational areas, decreased fish and wildlife populations, and loss
of world class karst and cave resources. Witness the community
resolutions which oppose Sealaska's proposed legislation. We are
concerned that this legislation allows Sealaska to control access to
areas that local residents and visitors rely on for hunting, guiding,
fishing, recreation and other traditional uses.
We are concerned that this legislation does not prevent the cherry
picking of some of the most productive fish and wildlife habitat in the
Tongass National Forest. The targeting of some of the most valuable
lands in the Tongass, which is proposed in this legislation, gives
Sealaska miles and miles of roads and other infrastructure built and
paid for by the U.S. taxpayers.
We are especially concerned that ``Native Future'' and ``Cultural''
sites contain no limits on the scope or size of commercial development
or the amount of commercial visitation that could be allowed. The
selection of 46 popular bays, coves, and anchorages throughout the
Tongass raises red flags as to bow local and community use of those
locations might be impacted.
We believe that Sealaska is attempting to change the rules under
the 1971 ANCSA legislation for selecting from the public lands for
their entitlements. You must remember that Sealaska is a for-profit
corporation and in its desire to make a profit, it does not always look
to the totality of the interests of the members of that corporation.
Traditional native values relying on subsistence resources and the
preservation of an ancient way of life often take short.slarift in a
profit driven world.
Thank you for your attention to our concerns.
______
Kake Tribal Corporation,
Juneau, AK, December 5, 2007.
Hon. Lisa Murkowski,
U.S. Senate, 709 Hart Senate Office Building, Washington, DC.
RE: Supporting Sealaska Corporation's Land Entitlement Legislation, HR
3560, Haa Aani
Dear Senator Murkowski: Kake Tribal Corporation, the Alaska Native
Claims Settlement Act (ANCSA) village corporation for the community of
Kake, is writing to express its support for H.R. 3560, Sealaska
Corporation's legislative proposal to finalize its land entitlement
conveyances. In 1971, Congress enacted the Alaska Native Claims
Settlement Act to recognize and settle the aboriginal claims of Alaska
Natives to their traditional homelands by authorizing the establishment
of Alaska Native Corporations to receive and manage lands and funds
awarded in settlement of the claims of Alaska Natives. The purposes of
ANCSA were to settle the land claims of Alaska Natives and to provide
them with a means to pursue economic development, and create
sustainable economies for the benefit of Alaska's Native people.
However, more than 35 years post-ANCSA, the land conveyances have yet
to be completed.
Since 1971, many of the Alaska Native Corporations have become
successful and powerful economic engines within their regions and
throughout the State of Alaska. Sealaska Corporation is the single
largest private employer in Southeast Alaska, providing from 600 to 800
part-time and full-time jobs, annually, and contributing as much as $90
million, annually, to the Southeast Alaskan economy through its logging
contracts, road building activities, other timber-related activities,
and total Sealaska economic output. Sealaska also provides a
significant benefit to Alaska Natives throughout the State of Alaska
through its annual 7(i) revenue sharing contributions, totaling over
$300 million since Sealaska began operating.
Sealaska would now like to engage in a comprehensive land
entitlement and conservation initiative, allowing it to complete its
land entitlement by making cultural and economic land selections
outside of the original withdrawal areas, and in return it would allow
removal of the encumbrance created by the withdrawal of lands for
Alaska Native selection in Southeast Alaska. If Sealaska does not
receive conveyance of all of the lands to which it is entitled in the
near term, the primary economic activity of Seaiaska--logging--will
cease in the near term, which will impact Southeast Alaska's Native
people, the Southeast Alaska economy, and the Alaska Native
Corporations throughout the State that have come to rely upon
Sealaska's 7(1) contributions.
Therefore, Kake Tribal supports the enactment by the United States
Congress of a bill to complete Sealaska's ANCSA land entitlement to
allow Sealaska to continue to help meet the economic needs of the
Native people of Southeast Alaska and Alaska Native Corporations
throughout the State of Alaska.
Please do not hesitate to contact us if you have any questions
regarding our position on this important legislation.
Sincerely,
Harold Martin,
President.
______
Southeast Alaska Native Economic Futures Coalition,
Juneau, AK, December 7, 2007.
Hon. Lisa Murkowski,
U.S. Senate, 709 Hart Senate Office Building, Washington, DC.
RE: Supporting Sealaska Corporation's Land Entitlement Legislation,
H.R. 3560, Haa Aani
Dear Senator Murkowski: The Southeast Alaska Native Economic
Futures Coalition is writing to express its support for H.R. 3560,
Sealaska Corporation's legislative proposal to finalize its land
entitlement conveyances. These conveyances were originally contemplated
under the Alaska Native Claims Settlement Act (ANCSA), but more than 35
years post-ANCSA, they have yet to be completed.
Sealaska representatives met with us today and fully briefed us on
this land entitlement legislation. The Southeast Alaska Native Economic
Futures Coalition sees the economic benefits of this legislation and
understands the importance of finalizing the ANCSA land entitlement
conveyances. Therefore, we are pleased to express our support for this
legislation.
If you have any questions regarding our position on this important
legislation, please do not hesitate to contact us.
Sincerely,
Dewey Skan,
Chair.
______
Statement of Andy Richter, President, Naukati West, Naukati, AK
In June 2004 communities on Prince of Wales (POW) Island were made
aware of the fact that Sea Alaska Corporation was seeking to acquire
Forest Service lands on P O.W, Tuxekan, Hecata, and Kosciusko Islands.
The communities on these Islands have historically relied on
subsistence in the surrounding forest and streams, it is extremely
important to these communities. Sea Alaska has a policy of no use of
their lands and that would mean No firewood gathering, berry picking.
hunting or fishing and actually would isolate the communities of Edna
Bay, Port Protection and Point Baker. We asked Sea Alaska to have some
informational meetings with the communities and this request has been
denied and ignored for four years. We now are informed meetings with
each community will happen in April 2008. What in the world happened to
change the informational meeting issue?
Sea Alaska has offered user permits to locals that are supposed to
be the same as we now have with the Forest Service. In fact they are
very different. Permits would expire if you sold your property. If a
family had a child after the permit was issued that child would not be
allowed a permit. These are only a couple of points among several of
the conditions of the permit. Sea Alaska is asking us to accept much
less than what we now have. The Forest Service is a good neighbor and
Sea Alaska is not going to be.
We have two other issues which are also very important to the
communities.
(1) Sea Alaska has a history of whole log export of their
timber so no supply for local mills is their policy. Since
export timber is a significantly better return the bottom line
is obviously more important than a healthy economy in Southeast
communities.
(2) The fifteen mile radius non competition areas also known
as enterprise sites are not acceptable. Sea Alaska has not
provided any suitable answers to these issues and has in fact
rel-bsed to meet with the public up to now.
Sea Alaska not surprisingly claims they have the support of the
Native communities. It should be noted not all the natives agree with
this land exchange and have stated so in public meetings.
Sea Alaska has only one interest and that is the bottom line. Sea
Alaska has not been able to provide and acceptable answer to the
question why legislation is necessary for any party other than Sea
Alaska. It' this legislation passes the door will be open to other
native corporations to come back to the Federal Government for more
land because they think their piece of the pie wasn't sweet enough
either.
The community of Naukati Bay supports Sea Alaska's remaining land
selection established in the Alaska Native Claims Settlement Act. Only
within the core ivnship boundaries established by the original Alaska
Native Claims Settlement Act.
______
Statement of the Southeast Alaska Conservation Council, on H.R. 3560
The Southeast Alaska Conservation Council (SEACC) submits the
following statement regarding H.R. 3560, the Southeast Alaska Native
Land Entitlement Finalization Act. SEACC respectfully requests that
this written statement and accompanying material be entered into the
official record of this Committee hearing.
Founded in 1970, SEACC is a grassroots coalition of 15 volunteer,
non-profit conservation groups made up of local citizens in 13
Southeast Alaska communities that stretch from Craig on Prince of Wales
Island north to Yakutat. Our individual members include commercial and
sport fishermen, Alaska Natives, tourism and recreation business
owners, small-scale high value-added wood product manufacturers,
hunters and guides, and Southeast 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.
Congressman Don Young, along with several distinguished colleagues,
introduced H.R. 3560 on September 18, 2007. We respect the efforts of
Congressman Young to stand up for the interests of Alaska Natives
throughout his tenure in the U.S. House of Representatives. Like
Congressman Young and H.R. 3560's other cosponsors, SEACC supports
completing the conveyance of Sealaska Corporation's land entitlement
under the Alaska Native Claims Settlement Act (ANCSA). Nonetheless, we
have serious reservations about the changes in federal law proposed in
H.R. 3560 and oppose the bill as introduced. We remain committed,
however, to maintaining open lines of communication with Sealaska
Corporation and the bill's sponsors to finalize the conveyance of
Sealaska Corporation's outstanding statutory land entitlement.
Consequently, we offer the Committee these preliminary comments for
your consideration as you begin your review of this legislative
proposal.
[Due to the large amount of materials submitted, additional
documents and statements have been retained in subcommittee
files.]