[Senate Hearing 114-464]
[From the U.S. Government Publishing Office]
S.Hrg. 114-464
THE IMPLEMENTATION OF THE ALASKA NATIONAL INTEREST LANDS CONSERVATION
ACT OF 1980, INCLUDING PERSPECTIVES ON THE ACT'S IMPACTS IN ALASKA AND
SUGGESTIONS FOR IMPROVEMENTS TO THE ACT
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON
ENERGY AND NATURAL RESOURCES
UNITED STATES SENATE
ONE HUNDRED FOURTEENTH CONGRESS
FIRST SESSION
----------
DECEMBER 3, 2015
----------
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
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COMMITTEE ON ENERGY AND NATURAL RESOURCES
LISA MURKOWSKI, Alaska, Chairman
JOHN BARRASSO, Wyoming MARIA CANTWELL, Washington
JAMES E. RISCH, Idaho RON WYDEN, Oregon
MIKE LEE, Utah BERNARD SANDERS, Vermont
JEFF FLAKE, Arizona DEBBIE STABENOW, Michigan
STEVE DAINES, Montana AL FRANKEN, Minnesota
BILL CASSIDY, Louisiana JOE MANCHIN III, West Virginia
CORY GARDNER, Colorado MARTIN HEINRICH, New Mexico
ROB PORTMAN, Ohio MAZIE K. HIRONO, Hawaii
JOHN HOEVEN, North Dakota ANGUS S. KING, JR., Maine
LAMAR ALEXANDER, Tennessee ELIZABETH WARREN, Massachusetts
SHELLEY MOORE CAPITO, West Virginia
Karen K. Billups, Staff Director
Patrick J. McCormick III, Chief Counsel
Chuck Kleeschulte, Senior Professional Staff Member
Angela Becker-Dippmann, Democratic Staff Director
Sam E. Fowler, Democratic Chief Counsel
David Brooks, Democratic General Counsel
C O N T E N T S
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OPENING STATEMENTS
Page
Murkowski, Hon. Lisa, Chairman and a U.S. Senator from Alaska.... 1
Cantwell, Hon. Maria, Ranking Member and a U.S. Senator from
Washington..................................................... 23
WITNESSES
Sullivan, Hon. Dan, a U.S. Senator from Alaska................... 24
Walker, Hon. Bill, Governor, State of Alaska..................... 27
Coghill, Hon. John, Majority Leader, Alaska State Senate......... 35
Arno, Rod, Executive Director, Alaska Outdoor Council............ 52
Brown, Valerie, Legal Director, Trustees for Alaska.............. 60
Kindred, Joshua, Environmental Counsel, Alaska Oil & Gas
Association.................................................... 70
Seidman, Anna, Director of Litigation, Safari Club International. 78
Tangen, J.P., Attorney at Law.................................... 85
ALPHABETICAL LISTING AND APPENDIX MATERIAL SUBMITTED
Ahtna, Incorporated:
Letter for the Record........................................ 121
Alaska Federation of Natives:
Statement for the Record..................................... 123
Alaska Miners Association:
Letter for the Record........................................ 128
Alaska Professional Hunters Association:
Letter for the Record........................................ 154
Alaska Trappers Association:
Letter for the Record........................................ 160
Alaska Travel Industry Association:
Letter for the Record........................................ 22
Alaskans for Wildlife:
Statement for the Record..................................... 20
Arctic Slope Regional Corporation:
Letter for the Record........................................ 162
Arno, Rod:
Opening Statement............................................ 52
Written Testimony............................................ 54
Association of Fish & Wildlife Agencies:
Letter for the Record........................................ 166
Borrell, Steven, P.E.:
Letter for the Record........................................ 170
Brown, Valerie:
Opening Statement............................................ 60
Written Testimony............................................ 62
Responses to Questions for the Record........................ 118
Cantwell, Hon. Maria:
Opening Statement............................................ 23
Citizens Alliance Protecting School Lands:
Statement for the Record..................................... 171
Coghill, Hon. John:
Opening Statement............................................ 35
Written Testimony............................................ 37
Responses to Questions for the Record........................ 111
Dahlstrom, Kirk:
Explanation of the Need to Inventory all 425,000 Acres of
Young-Growth on the Tongass................................ 6
Transition to Young-Growth Harvesting 11-30-09............... 8
Doyon, Limited:
Statement for the Record..................................... 232
Fortymile Mining District:
Letter for the Record........................................ 239
Gibert, Sally:
Statement for the Record..................................... 11
Heimer, Wayne:
Letter for the Record........................................ 241
Kindred, Joshua:
Opening Statement............................................ 70
Written Testimony............................................ 72
Likins, David:
Letter for the Record........................................ 253
Mack, Hon. Henry:
Letter for the Record........................................ 255
Murkowski, Hon. Lisa:
Opening Statement............................................ 1
National Parks Conservation Association:
Letter for the Record........................................ 259
Northwest Explorations Joint Venture:
Statement for the Record..................................... 265
Resource Development Council for Alaska, Inc.:
Letter for the Record........................................ 411
Safari Club International, Alaska Chapter:
Letter for the Record........................................ 419
Seidman, Anna:
Opening Statement............................................ 78
Written Testimony............................................ 80
Sullivan, Hon. Dan:
Opening Statement............................................ 24
Tangen, J.P.:
Opening Statement............................................ 85
Written Testimony............................................ 88
Supplement for the Record.................................... 427
Walker, Hon. Bill:
Opening Statement............................................ 27
Written Testimony............................................ 29
Map entitled ``Alaska State Lands''.......................... 34,99
(The) Wilderness Society:
Statement for the Record..................................... 430
Wilderness Watch:
Statement for the Record..................................... 433
Yarnell, Ronald:
Letter for the Record........................................ 17
THE IMPLEMENTATION OF THE ALASKA NATIONAL INTEREST LANDS CONSERVATION
ACT OF 1980, INCLUDING PERSPECTIVES ON THE ACT'S IMPACTS IN ALASKA AND
SUGGESTIONS FOR IMPROVEMENTS TO THE ACT
----------
THURSDAY, DECEMBER 3, 2015
U.S. Senate,
Committee on Energy and Natural Resources,
Washington, DC.
The Committee met, pursuant to notice, at 10:05 a.m. in
Room SD-366, Dirksen Senate Office Building, Hon. Lisa
Murkowski, Chairman of the Committee, presiding.
OPENING STATEMENT OF HON. LISA MURKOWSKI, U.S. SENATOR FROM
ALASKA
The Chairman. Good morning. The Committee will come to
order.
This morning we are conducting an oversight hearing on the
Alaska National Interest Lands Conservation Act. We refer to
this as ANILCA. This was a law that President Carter signed on
December 2, 1980. So we are 35 years and a day into enactment
of ANILCA and it is certainly time for a review. That is the
purpose of this oversight before the Energy and Natural
Resources Committee this morning.
ANILCA set aside 104 million acres of national parks,
refuges, monuments and wild and scenic rivers in one state, in
my state, the State of Alaska, and modified the use of another
nearly 40 million acres of parks and refuges located there.
Overall the bill protected an area larger than the State of
California and classified more than 57 million acres as
wilderness representing, at that point, 61 percent of all
formal wilderness in our nation.
The 35th anniversary of ANILCA is an opportunity to examine
how the law has and has not worked for Alaskans and really for
all Americans. This is also a perfect moment to reassert that
the law must be implemented as written not as Federal agencies
wish that it was written. That means the Federal Government
must honor rural preference, protect subsistence rights,
provide Alaskans with access to our lands and allow us to
responsibly develop our resources.
For those who are not familiar with the long history of
ANILCA, its final form reflects a series of compromises that
were largely developed here in the U.S. Senate. The House of
Representatives agreed to them, as did President Carter. That
was critical because those compromises provide a measure of
balance to ANILCA in the form of declarations, restrictions and
exceptions intended to limit the negative effects that this law
could have on Alaskans.
For example, the first section of ANILCA asserts that the
Act, ``provides sufficient protection for the national interest
in the scenic, natural, cultural and environmental values on
public lands in Alaska.'' That same section declares that
ANILCA represents, and I quote here, ``represents a proper
balance between the reservation of national conservation system
units and those public lands and thus Congress believes that
the need for future legislation designating new conservation
system units has been obviated thereby.'' In this section,
Section 1326, which we in Alaska refer to as the ``no more
clause,'' ANILCA explicitly prohibits the President from ever
again using the Antiquities Act to create new monuments in
Alaska without Congressional approval. It also sought to limit
new land set asides in the state by prohibiting some of the
studies that precede them.
Now along with the words that are contained in the act
itself within ANILCA, we have the words of those who worked on
ANILCA to go by. At the signing ceremony for ANILCA, President
Carter observed, and I quote here, ``that ANILCA strikes a
balance between protecting areas of great beauty and value and
allowing development of Alaska's vital oil and gas and mineral
and timber resources. A 100 percent of the offshore areas and
95 percent of the potentially productive oil and mineral areas
will be available for exploration and drilling. With this bill
we are acknowledging that Alaska's wilderness areas are truly
this country's crown jewels and that Alaska's resources are
treasures of another sort.''
That was President Carter's comment at the time of signing
ANILCA that 100 percent of the offshore areas and 95 percent of
the potentially productive oil and mineral areas will be
available for exploration and development. What a promise that
was.
When you look at the plain text of ANILCA and the
statements made about it by the people who wrote it, you see
efforts to seek and maintain balance. ANILCA would not only
protect lands and wildlife in Alaska, it would also protect the
people who live there.
The Act acknowledged that when it comes to formal
wilderness we had done our part. We had contributed our share.
At least in my read, it was not intended to close off our best
opportunities or threaten our livelihoods. ANILCA has protected
Alaska's crown jewels and has aided our tourism industry. But
there are other aspects, particularly associated with its
implementation, that have proven far more problematic. Take for
example these promises that were made to Alaskans. The promise
that we would not have to live in a permit society. The promise
that we could continue to use the newly created conservation
system units for recreation, hunting, fishing and subsistence.
The promise that we would be guaranteed access to and across
inholdings, and the promise that we could access our timber,
our oil, our gas and our mineral resources. Today all of those,
all of those promises, have been diminished, if not abandoned.
It is not just that lands and waters for oil and gas
development in Alaska have either been withdrawn or regulated
to the point where no operator can do business in violation of
President's Carters' promise. It is not just that more than 40
million more acres of Alaska have been withdrawn or proposed
for protection over the past seven years, including half of our
national petroleum reserve and almost all of ANWR, clearly
undercutting ANILCA's ``no more clause.'' It is not just that
nearly 15 million acres have been removed from the timber base
in our national forests contributing to the demise of an
industry that once employed thousands in Southeast. It is not
just that Alaskans are increasingly denied the ability to
access private inholdings in or by passing through conservation
system units or that existing traditional rights, such as our
ability to hunt and fish on public lands, are being
extinguished. It is not just that the series of new land
planning efforts that seek to make temporary withdrawals
permanent and evade ANILCA with new withdrawals through tools
like areas of critical environmental concern. It is not just
the access rights promised in Title 11 of ANILCA which have
seldom been successfully implemented. It is not just Alaskans,
like John Sturgeon, who will go before the U.S. Supreme Court
next year, fighting for his right to access traditional hunting
grounds after being denied access by the National Park Service.
It is a combination of all of these. It is the cumulative
effect. It is the fact that the Federal Government in ways both
large and small is trampling on our state sovereignty over
state lands and private sovereignty over private lands in
Alaska. The Federal Government is changing its interpretations
of ANILCA to suit itself with bureaucrats seeking to apply the
law as they would have written it, but not as it was agreed to
by Congress and as stated by President Carter. As that happens
no one in Washington, DC, ever seems to hear the Alaskans who
are impacted by the loss of access, rights and opportunities
that inevitably follow.
This is a law that is out of balance. It is a law that is
out of balance. It is admittedly a very complex law and
sometimes with seemingly contradictory directions to Federal
agencies. And that, likely, is because ANILCA is the only time
that Congress has passed legislation that applies to virtually
all Federal lands within a single state's borders.
Now clearly we could spend many days discussing this act.
Just the issue of subsistence alone and the management of our
fish and game stocks could consume many, many hours. My hope is
that this hearing will serve as a starting point. A starting
point to make ANILCA work better for Alaskans, even as we
protect our national treasures and the subsistence rights of
our native peoples.
We had dozens, believe me, we had dozens more witnesses who
wanted to speak this morning, but time and space just simply
preclude the size of panel that we need to truly depict the
impacts of the act in Alaska and across the opportunity. I can
promise you that there will be more opportunities to be heard
on this.
I am grateful that we have a strong panel of witnesses,
many of whom, including our Governor and our state Senator, who
have flown thousands of miles, 4,000 miles, to be here.
Governor Walker, Senator Coghill, our whole panel, thank
you for being here to share your expertise on ANILCA and for
the discussions that will follow. Senator Sullivan has joined
the Committee for his comments this morning.
As Alaskans have shown great interest in submitting
comments on the law, I have some statements that I will also
like to submit for the record. One is a statement from Kirk
Dahlstrom of Viking Lumber, Incorporated of Klawock on some of
the timber issues. We have a statement from Ms. Sally Gibert,
the former Alaska ANILCA Program Coordinator, on ways to
improve the operation of the Act. We have comments from Mr. Ron
Yarnell and Mr. Jim Kowalsky, both supporting the Act's
environmental benefits, and we have a comment from Sarah
Leonard of the Alaska Travel Industry Association supporting
the Act's impacts on Alaska.
I am told that there is going to be plenty more testimony
coming from others including many in Alaska's native community,
and we would look forward to receiving them at the time.
[The information referred to follows:]
For the Record submission from Mr. Kirk Dahlstrom of Viking
Lumber, Inc.
1. Explanation of the Need to Inventory all 425,000 Acres of
Young-Growth on the
Tongass
2. Transition to Young-Growth Harvesting 11-30-09
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
The Chairman. With that I would like to turn to my
colleague from Washington, Senator Cantwell.
Thank you for being here this morning.
STATEMENT OF HON. MARIA CANTWELL, U.S. SENATOR FROM WASHINGTON
Senator Cantwell. Thank you, Madam Chair, and thank you for
holding this hearing. Welcome to all the Alaskans who have
traveled to be here today.
Yesterday was the 35th anniversary of the date the Alaska
National Interest Lands Conservation Act was signed into law,
and somewhere in the back of my mind I can still imagine Scoop
Jackson and Ted Stevens having conversations, many, many
conversations, about this.
The Chairman. They probably weren't quiet. [Laughter.]
Senator Cantwell. No.
So it certainly is an appropriate time to review the
implementation--and in my view the tremendous success--of
ANILCA. While the implementation of this law clearly has
tremendous impact on Alaskans, I think it is important to
remember that the lands covered by ANILCA are Federal lands and
those are lands of national interest, as the title of the law
itself states.
According to the state's tourism data, Alaska had roughly
1.7 million summer visitors, nearly double the population of
the entire state. That includes visits to many of the iconic
places that were protected by ANILCA, including popular
National Park Service areas such as Glacier Bay, Lake Clark,
and of course, Denali National Park and Preserve, which you
were so instrumental in helping to get renamed and which
encompasses many of the state's most iconic features.
In addition, I should just note there is a Cantwell, Alaska
in Denali.
The Chairman. Yes. [Laughter.]
Senator Cantwell. In addition to the popular national parks
and national forests areas, ANILCA has protected millions of
acres of more remote lands such as the Arctic National Wildlife
Refuge. Whether heavily visited or not, these are lands of
significant importance to all Americans. They are extremely
important from an environmental and cultural standpoint by
protecting intact Arctic ecosystems as well as important fish
and wildlife habitat and migration routes, which are key for
subsistence and other hunting and fishing opportunities.
These lands also provide important economic benefits. The
outdoor industry estimates that the outdoor recreation
activities in Alaska, much of which take place on Federal land,
support over 90,000 direct jobs and generate about $9.5 billion
in consumer spending. So much of Alaska's tourism industry is
based on visitors from all over the world wanting to visit the
national parks and other public lands protected by ANILCA.
I think it is important and is worth noting that many of
the ecosystems protected under ANILCA include streams and
rivers that are a central part of Alaska's significant
commercial fishing activities, which support 20,000 direct jobs
and are closely tied to the fishing industry of the State of
Washington.
So I know the witness panel will be predominantly
representative of those expressing concerns over ANILCA and
more specifically with the way the Federal agencies are
implementing the law, but I do want to recognize there are
always inevitable conflicts between State, Federal, and local
interests in managing such large areas. However, much of the
criticism today is directed at agency's practices or
implementation of the law. So I think it would be appropriate
at some time to have the relevant agencies here to provide the
Administration's perspective. That would be helpful.
While I expect that much of the hearing will be focused on
specific concerns that different parties have on
implementation, I would like to close on a broader perspective.
On this anniversary of the law's enactment, I think it is
important to appreciate the significant vision of the law and
to join with millions of Americans who have enjoyed the
treasure of this very, very special place.
I hope that we will have a chance to ask some questions,
but as I informed the Chair, we have a caucus meeting at 11
o'clock so I will stay as long as I can to hear the witnesses.
Again, welcome to the Alaskans who are here to participate
in the hearing.
The Chairman. Thank you, Senator Cantwell.
We have been joined this morning by my colleague, Senator
Sullivan, who has, obviously, a great deal of background within
this area having served our state as former Attorney General,
as well as Commissioner of Natural Resources. It is a pleasure
to invite you before the Committee to put your comments on the
record and speak, as an Alaskan, on a very important issue to
us.
Senator Sullivan.
STATEMENT OF HON. DAN SULLIVAN, U.S. SENATOR FROM ALASKA
Senator Sullivan. Thank you, Madam Chair, Ranking Member
Cantwell. I very much appreciate the opportunity to testify
this morning. I appreciate, Madam Chair, in particular, your
leadership on this issue in terms of the oversight and moving
forward on ways to improve ANILCA.
I am also, as you mentioned, honored to be here with so
many distinguished fellow Alaskans, Senator Coghill, the
Governor, many others, Rod Arno.
I think you will hear a common theme from all of them. I
have not looked at their testimony, but I think one common
theme is going to be no more means no more.
Madam Chair, you talked about how we've done our part, what
ANILCA did in terms of setting aside 106 million acres. I mean,
I'd like to add to that in terms of what Alaska presents for
the country, 70 percent of National Park Service lands, 80
percent of all wildlife refuge lands, 53 percent of wilderness
lands, the number two and number one largest national forests,
all are in our state. As you said, we have done our part.
You also mentioned that the ``no more clause'' is in ANILCA
and you mentioned Section 101D, but as you know, Madam Chair,
there are other provisions of ANILCA that talk to the ``no more
clause.'' Let me provide a couple other examples.
Section 1326 says, ``No further studies of the Federal
lands in the State of Alaska for the single purpose of
considering the establishment of a conservation system unit,
national recreation area, national conservation unit or for
related or similar purposes shall be conducted unless
authorized by a further act of Congress.'' That is in the law.
Another part of the law, ``No further Executive Branch
action which withdraws more than 5,000 acres in the aggregate
of public lands within the State of Alaska shall be effective
without an affirmative vote of Congress.'' The law is the law.
That is the ``no more clause.'' What has happened since? Broken
promises after broken promises. As you mentioned that was the
key compromise. Year after year radical outside environmental
groups and their allies push for more ways to lock up Alaska.
And the Obama Administration, in particular, has readily and
consistently attempted to eviscerate and ignore ANILCA's ``no
more clause,'' as you mentioned, Madam Chair, 40 million acres
attempted under this Administration to withdraw.
The President recently announced he was ordering his
agencies to manage 12 million acres of ANWR as wilderness. That
is not allowed under the law. He also restricted access, as you
mentioned, to 50 percent of the National Petroleum Reserve of
Alaska, again, not allowed under ANILCA. His wildlands
initiative early in the Administration was a blatant attempt to
lock up more land in Alaska in violation of ANILCA. As you know
there has been regulation after regulation to limit access and
ability for Alaskans to practice hunting, trapping, fishing,
activities that literally put food on the table of Alaskans.
Likewise our miners continually fight for access to our
lands.
And I think it's important to remember, these are our
lands. They're not the Department of the Interior's or BLM's.
We, the people, own these lands.
Most recently, as you mentioned, a moose hunter from Alaska
has had to resort to spending hundreds of thousands of dollars
on a lawsuit which will be heard by the U.S. Supreme Court next
month to try to force the Federal Government to keep the
promise that was made in the plain text of ANILCA.
And we wonder why Congress and the Federal Government have
such low approval ratings. When it comes to ANILCA, the Federal
Government is a serial cheater.
Everywhere I go in Alaska people come up to me to tell me
that the lands that should be theirs under ANILCA are being
blocked. I believe that's just wrong. There's a better way the
Federal Government and the Executive Branch should keep its
word. I know that this Committee will be looking at all
recommendations to help make the promise and compromise of
ANILCA the opportunity that it should be for all Alaskans.
Thank you, Madam Chair.
The Chairman. Thank you, Senator Sullivan. Know that this
is something that we will continue to work on, and I appreciate
your support in that endeavor as well.
I know you have lots going on this morning, so thank you
for taking the time this morning.
Now I would like to call up our panel of witnesses. We are
going to squeeze you all in at the table, and as you come
forward I will go ahead and begin the introductions.
We have been joined this morning by the Governor of the
State of Alaska, Governor Bill Walker. Governor Walker has been
serving us as Governor of the state since his election last
year in 2014.
Why don't you all come forward and be seated?
The Governor was born and raised in Alaska. He was raised
down in Valdez. He has worked as a carpenter, as a teamster,
and as a laborer on our Trans-Alaska Pipeline. He received his
law degree from the University of Puget Sound School of Law and
obtained his Bachelor of Science from Lewis and Clark in
Oregon. The Governor and I have had opportunities to be working
together, not only in his capacity as Governor, but prior to
the time that he took over as the CEO of the State of Alaska. I
appreciate his leadership in many, many ways.
Governor Walker will be followed by Senator John Coghill.
Senator Coghill has been an Alaska State Senator since 2009. He
has been the Senate Majority Leader of the Alaska State Senate
since January 2013. We both came into the legislature together
as members of the State House in 1998. Senator Coghill also
served his country in the United States Air Force. He is a true
leader, not only for Interior Alaska, but for the state, and I
am pleased to have you here as a friend and colleague. So,
welcome to you.
Following Senator Coghill, Mr. Rod Arno will present his
testimony. Rod is the Executive Director of the Alaska Outdoor
Council. This is an organization that is dedicated to the
preservation of outdoor pursuits in Alaska, hunting, fishing,
trapping and public access and conservation of the habitats
upon which these activities depend. He has been a strong leader
and a strong voice in so many of these areas. We appreciate
your leadership, and we thank you for making the long trek back
from home.
Next we have Ms. Valerie Brown, and we welcome her to the
Committee. She is the Legal Director for the Trustees of
Alaska. This is a nonprofit, public interest, environmental law
firm which represents conservation and tribal interests on
environmental and natural resources that face our state. It is
a pleasure to have you before the Committee, welcome.
Next we have Mr. Joshua Kindred. Josh is the Environmental
Counsel for the Alaska Oil and Gas Association which is a
nonprofit, trade association representing the majority of oil
and gas exploration, production, transportation, refining and
marketing activities within the state. He has a big job. We
appreciate what he does.
Next we have Ms. Anna Seidman. Anna is the Director of
Litigation for Safari Club International (SFI). SFI is a
nonprofit organization whose mission includes protecting the
freedom to hunt and promoting wildlife conservation worldwide,
not just in the State of Alaska, of course. So we welcome you
to the Committee.
The final member of our panel is Mr. J.P. Tangen. J.P. is
no stranger to Washington, DC, and no stranger to these issues.
He is an attorney who has been practicing in the State of
Alaska for 35 years. He has long represented the Alaska Mining
Industry, but he has also served as the Alaska Regional
Solicitor for the Department of the Interior. He has also been
the Co-Chairman of the Alaska Miners Association Federal
Oversight Committee. J.P. is the author of d(2) Part 2, a
publication that I have made available to all members of the
Committee and would certainly urge their review and
consideration. Not that I am trying to sell any books for you,
J.P., but it really does lay out so much of the history of this
incredibly important act that we are looking to today.
With that, Governor Walker, if we can begin with you?
I know it is difficult, but I am going to try to ask each
of you to keep your comments to five minutes. Your full
testimony will be included as part of the record. Once all of
you have concluded your remarks we will have an opportunity for
questions and the follow up answers.
So again, welcome to the Committee. Thank you for being
here.
Governor Walker.
STATEMENT OF HON. BILL WALKER, GOVERNOR,
STATE OF ALASKA
Governor Walker. Thank you very much for this opportunity,
Madam Chair Murkowski, Senator Cantwell, members of the
Committee. As the Governor of Alaska I am honored to present
today comments about the ANILCA.
I was born in Alaska, as you mentioned. I remember very
well the day of statehood. I was seven years old. We were in
Delta Junction. We went into the A&W Root Beer stand. It was
nobody's birthday, so I knew it was a big deal, something had
happened really big. It is about 150 miles as the crow flies
from Cantwell, Alaska. So at some point I hope you'll have a
chance to visit Cantwell.
You know, the excitement of becoming a state was one that
we had a hope of self-sufficiency. It was not unanimous that
Alaska came in as a state. Many were concerned that we could
not make our way.
We were told you will not have an income. You will not have
the kind of infrastructure the other states have. You need to
live off the resources.
As part of that, the Statehood Compact was entered into,
and the Statehood Compact is unique to Alaska. It says that in
Alaska we cannot sell the resources in the ground. We must live
off the resources. That was the deal we made.
There's a reversionary clause in the Statehood Compact that
says if you do sell the resources in the ground that land
reverts back to the Federal Government. So we've been very
careful to not sell resources in the ground. So it would be
like a business who was having a difficult time, you had a
warehouse, you'd sell the warehouse if you couldn't find a
tenant or you couldn't get access. We can't do that. We're very
unique in that regard we have to live off the land.
So therefore we paid close attention in 1980 when ANILCA
was entered into. Two key provisions of ANILCA, and Senator
Sullivan has gone through them well, as you have Madam Chair.
But one is, was compromise. That was a compromised piece of
legislation. It was to bring balance. And the balance, I mean,
it couldn't have been clearer than when President Carter talked
about 100 percent access to offshore, 95 percent access to
onshore. Today we have one percent access to onshore.
We're trying to survive the downturn and resource, it's
very important to our economy. And through a pipeline, I know
in this city there's lots of discussion about pipelines. Let me
tell you about our pipeline.
I wear a lapel pin of Alaska with a pipe in it. And the
only thing wrong with the Trans-Alaska Pipeline is that it is
three quarters empty. It's three quarters empty because,
largely because, of lack of access to our resources.
You know, the 1002 section of the Coastal Plain of ANWR,
the 1002 comes from ANILCA, from the 1002 section. It's a
specific exemption that said you can have, there's a process to
have access to this particular region because they knew then,
they certainly know now, it is a very productive petroleum
opportunity for our nation and for our state. It makes up eight
percent of ANWR.
With the shift of the oil now, we need access to one half
of that, the Western half. That's four percent, four percent of
that area that is set aside.
So, you know, when I deal with budget deficits, when I
dealt with laying off 600 employees last year, we're looking at
significantly more layoffs. I look at not being able to fund
certain things we wanted to fund in our great state.
And I look at that oil that is literally within 50 miles of
an oil pipeline, an existing oil pipeline, not one that needs
to go through any process to be built. It's there. That's very
frustrating that we cannot have access to four percent of that
area that was specifically set aside to be evaluated for
resource development, knowing full well.
Much has happened since the Trans-Alaska Pipeline both in
the way of technology advancement and in other development
around the world. Methods of extraction are now available that
were not available before. The migration of caribou herds are
different than they were before. So that needs to be looked at
again, and we plan to do that in a very aggressive manner.
One thing I must say is that the makeup of Alaska has
changed since we became a state. The Alaska Native Regional
Corporations are major, major players in our state in every
facet of it and certainly in the business sector. You don't go
to the North Slope of Alaska without seeing the incredible
accomplishments of those corporations in our state. So they are
significantly impacted by ANILCA in every way as well.
We haven't gotten the benefit of the deal. The deal was it
was a compromise and it was supposed to be balanced, and it
hasn't been. The ``no more clause'' has not been honored. We
have not had the access that we should have had.
So I have my own interpretation of the ``no more clause''
that I plan to use every day I am in office to make sure Alaska
has access to our timber, to our mining and to our oil and gas
development.
Thank you very much for this opportunity.
[The prepared statement of Governor Walker follows:]
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The Chairman. Thank you, Governor. Again, we appreciate not
only you being here today, but being able to lend a historical
perspective that I think is important for others to understand.
Another individual who has a great historical perspective
is Senator John Coghill. Welcome to Washington, DC.
STATEMENT OF HON. JOHN COGHILL, MAJORITY LEADER, ALASKA STATE
SENATE
Mr. Coghill. Thank you, Senator Murkowski and Senator
Cantwell, thank you for being here and Senator Gardner.
It is my pleasure to speak not only as a state senator but
I'm also voicing for the Citizens Advisory Commission on
Federal Areas. And the testimony that you'll have before you is
a compilation of things that we've heard from citizens all
across Alaska coming to the Commission.
But for me, born and raised in Alaska, in the territory of
Alaska coming into statehood I was nine years old. My dad was
part of the Constitutional Convention. And there was great
expectation that came from statehood and one of them was the
compromise, in Congress here was, that we would be living off
our land as the Governor said.
We put together a wonderful constitution that has in it the
natural resource article that is unique to American
constitutions. We have been good stewards of what we were set
out to do, but Congress ratified this constitution saying you
can do that.
So, as the Governor said, it's a compact that we made with
the Federal Government. But along the way in this compact issue
we knew we were going to have to settle some Native Land Claim
Settlements, and ANCSA came along shortly after we were a state
and it rocked the state.
It was a tough compromise even in Congress here, but we did
it and we settled with 40 million acres and many, many other
issues that came from the ANCSA agreement.
Out of that came this ANILCA law that we would balance the
ability of the state to prove its resources for an economy and
take care of the national interest, as Senator Cantwell said.
What it effectively did, and for those of you who don't
understand how it impacts us in the state, it literally amended
the Statehood Compact. So what we've done now is we've put
ourselves in a place where if we can't get the promises given
to us under ANILCA, our Statehood Compact becomes null and void
or raggedy in such a way that it's not recognizable, as the
Governor said. And with these broken agreements that you've
heard already in testimony today, here's what the compacts, the
guarantees and the agreements that have not been fulfilled mean
to us.
It's first very disingenuous to a people who had that great
expectation. We had this slogan, north to the future. We were
going to build a great state.
We still have the opportunities, we have all the tools, but
what's happened here is the erosion of our promises given to us
at our statehood and the ensuing documents and ANILCA being
this now 35-year old document. It's been disrespectful to the
people, but it's been disrespectful to the law as well.
We have had agency people through regulation literally able
to, with guidance, change the Statehood Compact. This is just
not acceptable. So but it's beyond that. It's a cancer to our
economy.
We can't get people to make investments in our economy
knowing that the regulations are shifting with political wins.
It's not now relating to the law as it should be, and so we're
appealing that ANILCA needs to go back and take a look at the
law and there are suggestions within the document that I'm
giving you that is probably easier to read than hearing my
testimony.
But it's also strangling opportunity. We have wonderful
resources that were promised us to be part of what the 750,000
people in Alaska can build an economy with. We have villages
that are literally inholdings in Federal areas that are
strangled from the ability to produce an economy because they
can't hunt. They can't fish. The transportation system has not
been put together as promised by ANILCA.
We have small communities that are literally dying because
they can't move forward. We have people who will not invest in
those communities for that very reason. They literally have to
not only go through the law, but they have to go through a
whole series of litigations in order to make any move, mining
especially.
I'll give you one example and my time is short. That
Fortymile Mining District, they are literally redefining it and
putting it in their conservation unit contrary to the laws. So
in my testimony you'll see suggestions that can increase our
cooperation, bring us back to the law and suggestions to
Congress in helping to get the agencies to honor the law.
[The prepared statement of Mr. Coghill follows:]
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The Chairman. Senator Coghill, thank you. I appreciate that
you have outlined in your written testimony so many of these
suggestions. We will have an opportunity to pursue those during
questions, so thank you.
Mr. Arno, welcome to the Committee.
STATEMENT OF ROD ARNO, EXECUTIVE DIRECTOR, ALASKA OUTDOOR
COUNCIL
Mr. Arno. Thank you, Madam Chairman, Senator Cantwell,
Senator Gardner, I'm honored to address you on the 35th
anniversary of the signing of ANILCA.
I'm testifying today on behalf of the Alaska Outdoor
Council. The Alaska Outdoor Council thanks the Senator from
Alaska for the invitation to speak to the Committee on how
ANILCA has affected our 10,000 members and many other outdoor
folks who hunt, trap, fish and recreate on public lands in
Alaska.
The Alaska Outdoor Council is a 55-year old, statewide,
conservation organization in the true sense of the word. Our
membership personally participate in hunting, trapping and
fishing on Alaska's public lands.
Alaska is unique in the world. I know that from experience
from being a wilderness guide for 40 years in Alaska as well as
a world traveler. Alaska owes its uniqueness to a variety of
reasons, mainly its geographic location.
Alaska is at the apex of the Pacific Tectonic Plate
drifting north at four centimeters a year overriding the North
American plate. The result of that is the highest vertical
mountain in the world, now named Denali. The tectonic action is
responsible for making Alaska resource rich, both underground
with oil, gas and mineral deposits and on the surface with
wildlife habitats and majestic views.
Alaska's geographic location is also responsible partly for
the low density of human population. Long, dark winters,
weather extremes, habitats rich in plant life including
mosquitoes, all of which has kept Alaska less developed in most
of the world land mass. For its size Alaska has a very small
population of less than 750,000 people. The number of trappers,
hunters and anglers has not increased in Alaska over the last
35 years since the passage of ANILCA.
No doubt about it, the passage of ANILCA was a great
compromise between relatives of Alaska's first immigrants from
Asia, the continent, and subsequent waves of immigrants from
both east and west who live in Alaska today. With Alaska
becoming under the control of the U.S. Government, the burden
of determining who got the land fell upon the U.S. Congress.
As far as the state-owned lands, it's not like the State of
Alaska has intentions of clear cutting all the timber or
extracting all the mineral resources on the 102 million acres
given at its statehood. Alaska has already created over eight
state parks out of the land conveyed it by Congress. At nearly
1.6 million acres the Wood River-Tikchik State Park is the
largest state park in the United States. The State of Alaska
has already put a half a million acres in wilderness from its
land.
What's not intact is the people of Alaska. For those of us
who have chosen to make a wild food harvest part of our way of
life, we are in conflict with each other over a dwindling
harvestable surplus of game on Federal lands. This conflict is
exacerbated by the Federal land managers' relentless efforts to
restrict motorized access on and across 60 percent of Alaska
through Federal rulemaking.
While most of the Federal conservation lands created by
ANILCA have for their purpose to provide for subsistence uses,
the Department of the Interior's land managers continue to
allow harvest levels of game to decline because their mandates
don't include active game management. Less game, less
harvestable surplus equals more conflict among Alaskans who
want to provide themselves and family with a wild food harvest.
This is not what we Alaskans believe the intent of the
compromise that created ANILCA was to be.
The U.S. Department of the Interior needs direction to
allow Alaska's fish and game managers to manage on a
sustainable basis to meet subsistence uses. Congress should
amend ANILCA to make it clear Department of the Interior
mandates do not supersede Alaska's ability to manage its fish
and game.
Once harvestable surplus declines, Title VIII of ANILCA
implemented by the Federal Subsistence Board causes all non-
Federally qualified resident subsistence users of Alaska and
all nonresidents to lose their equal access to publicly-owned
resources. The Department of the Interior has recently adopted
rules that divide Alaskans based solely on their place of
residency and no other criteria.
The U.S. Constitution 14th Amendment equal protection law
does not allow that type of rulemaking. In no place else in the
nation has Congress passed laws where new immigrants to the
country don't share the same rights and privileges to public
resources just because of where they chose to live. Alaska
recommends that Title VIII of ANILCA with rule priority public
resources be reviewed to determine its constitutionality.
Thank you for your time and consideration of how the
Department of the Interior implementation of ANILCA is
negatively affecting the wellbeing of Alaskan citizenry.
[The prepared statement of Mr. Arno follows:]
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The Chairman. Thank you, Mr. Arno.
Ms. Brown, welcome.
STATEMENT OF VALERIE BROWN, LEGAL DIRECTOR, TRUSTEES FOR ALASKA
Ms. Brown. Good morning, Chairman Murkowski, Ranking Member
Cantwell, Senator Gardner. I'm Valerie Brown, Legal Director
for Trustees for Alaska, a nonprofit public interest law firm
in Anchorage, Alaska. I appreciate the opportunity to address
you today on an issue that is important to me and to Alaska and
to everyone in the country.
The Alaska National Interest Lands Conservation Act is
sometimes called the most important piece of conservation
legislation in the 20th century. I realize that view is not
shared by some Alaskans, including some people here today, but
I believe that it's true and I'm pleased to speak to its many
benefits just 1 day after the 35th anniversary of its adoption.
There are many other groups of Alaskans, as Senator
Murkowski noted, that benefit from Alaska that aren't here
today, subsistence users, fishermen, recreational based tourism
are just a few. And I'm sure that they look forward to
participating in future hearings on ANILCA oversight as well.
When I moved to Alaska in 1988 ANILCA was just seven years
old. There had been many years of political wrangling leading
up to its adoption. By the time I arrived in Alaska though some
people were starting to change their mind about that.
For example, in 1975 in the midst of the controversy over
one of the earlier versions of ANILCA, the City Council of
Seward passed a resolution opposing the creation of Kenai
Fjords National Park. But just five years after ANILCA was
passed Seward had seen so much economic growth and
diversification it rescinded its resolution and it's now the
gateway to Kenai National Park, excuse me, Kenai Fjords
National Park and it reaps incredible economic benefits from
that.
In total ANILCA took 104 million acres of Federal land and
dedicated them to specific conservation purposes with mandates
for long-term protection of geographic features, cultural
traditions and ecological processes of the nationally owned
lands. They include Denali National Park which, despite its
remote location and the expense of getting there, is the third
most visited park in the entire National Park System.
In many places ANILCA allows some commercial use such as
timber, fishing, guiding and other tourism-related activities.
And it guarantees a subsistence use priority for rural Alaskans
as well as for other traditional uses and for private land
inholders. But ANILCA left an important land management
decision unmade in the Coastal Plain of the Arctic Refuge.
Congress recognized that the area was vital to the Porcupine
Caribou herd, polar bears and more than 250 other species that
rely on it. ANILCA did not decide the permanent land management
for the coastal plain. Thirty-five years later that decision
remains unmade.
Yesterday the Senate Arctic Refuge Wilderness bill was
introduced with a total of 34 senators signing on expressing
historic support for wilderness designation for the coastal
plain of the Arctic Refuge, and we believe Congress should act
to pass that bill. Designation of the coastal plain as
wilderness is long overdue.
I've been to the coastal plain and it's an incredible
place. I support the Gwich'in people who call the coastal plain
the sacred place where life begins. In addition to jeopardizing
the biological heart of the Arctic National Wildlife Refuge
drilling in the coastal plain won't solve Alaska's economic
problems which stem from the fact Alaska is too dependent on
oil development. Sacrificing our most iconic and important
public lands for oil takes us in the wrong direction.
This hearing is happening at the same time world leaders
are gathered in Paris at the U.N. conference on climate change.
The issue of climate change is even more important for Alaskans
because we suffer affects from climate change at twice the rate
of the rest of the nation. We are warming faster, our
coastlines are eroding and our permafrost is melting.
We cannot drill our way to a solution for climate change
and more drilling will not protect our state from its impacts.
It will do the opposite. The areas protected by ANILCA help us
deal with the impacts of climate change by providing a living
laboratory to study and find solutions to offset the impacts of
climate change while giving wildlife and communities the
opportunities to adapt.
Today, one day after ANILCA's 35th Anniversary, we should
celebrate Congress' forethought in making conservation a
priority on those 104 million acres in Alaska's national lands.
These lands provide the basis for sustainable economic
practices and they protect traditional subsistence uses and
they are a national heritage which benefit all Americans but
also all Alaskans.
Thank you for inviting me today, and I look forward to
answering your questions.
[The prepared statement of Ms. Brown follows:]
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The Chairman. Thank you, Ms. Brown.
Mr. Kindred, welcome to the Committee.
STATEMENT OF JOSHUA KINDRED, ENVIRONMENTAL COUNSEL, ALASKA OIL
& GAS ASSOCIATION
Mr. Kindred. Thank you, Madam Chair, Ranking Member
Cantwell, Senator Gardner. I appreciate the opportunity to
address the Committee today regarding the implementation of
ANILCA and the role that is has played on oil and gas
development in Alaska.
In reality oil and gas operations in Alaska are somewhat
academically and practically removed from traditional ANILCA
issues. However, that is simply because ANILCA issues affecting
industry often resolve for better or worse absent private
sector involvement. Nevertheless ANILCA has over the past 35
years effectively dictated the scope of natural resources
development in Alaska.
It is vital to understand that ANILCA represented
substantial congressional and ideological compromise
acknowledging that considerable conservation withdrawals could
not be achieved without also accommodating the interests of the
State of Alaska and Alaska natives.
As for the formal objective, ANILCA effectively doubled the
size of the nation's national park and refuge systems and
tripled the amount of land designated as wilderness. And
although issues remain on the periphery, this must be
considered a great success from an environmental standpoint.
However, as the other primary goal of ANILCA 35 years
later, the optimism of those who drafted ANILCA is starkly
contrasted by numerous examples of the subsequent erosion of
Congress' vision of collaborative, unique and balanced
legislation.
Now it is impossible to discuss ANILCA's proposed endeavor
of protecting the economic and social needs of the State of
Alaska and its people without discussing oil and gas
development. Historically proceeds from oil and gas development
provided millions of dollars to the State of Alaska,
representing nearly 90 percent of the state's unrestricted
general revenue. ANILCA does play a substantial role in the
industry in Alaska, if for no other reason, it dictates those
lands available for exploration and subsequent development.
Of course it would be imprudent to discuss the interplay of
ANILCA in oil and gas development without mentioning Section
1002 which mandated the coastal portion of the Arctic National
Wildland Refuge be studied and provided for a potential path to
oil and gas exploration and development. In 1987 following
detailed and comprehensive studies, the Department of the
Interior recommended opening the area for oil and gas
exploration and development. And to date, decades later, even
absent congressional action, there's little room to debate the
extraordinary resource potential of ANWR's coastal plain which
USGS estimates to contain over ten billion barrels of
recoverable oil.
Regardless of ANWR's potential and politically charged
status it highlights the manner in which ANILCA discourages
greater oil and gas exploration and development in Alaska. For
if the Federal Government is not willing to sanction oil and
gas operations in arenas congressionally envisioned for
development where the resource potential is known, what
incentive does Alaskan industry have to broaden their search to
areas of unknown resource potential?
Another aspect of ANILCA that serves to undermine resource
development pertains to Title 11 in the oil and gas context the
key examples that pertain to proposals to transit, sorry,
transport North Slope natural gas to market. The Alaska
Pipeline Project, or APP, a joint undertaking of Exxon Mobil
and Trans Canada, that would have resulted in a natural gas
pipeline from the North Slope through Canada to Midwest
refineries and markets, concluded that it could neither
navigate the procedural requirements of ANILCA Title 11 nor
successfully accomplish a land exchange. The APP is no longer a
viable project and plans for transporting North Slope gas have
shifted to the Alaska LNG project which is a proposal supported
by Exxon Mobil, ConocoPhillips, BP and the State of Alaska.
Alaska LNG is also struggling to envision a successful path
through ANILCA Title 11 because a small seven mile portion of
the most direct pipeline around will follow the park's highway
as it traverses Denali National Park.
It is difficult to succinctly summarize the problems posed
by ANILCA Title 11 for complex projects such as Alaska LNG.
Generally stated Title 11 establishes an inflexible and likely
impractical process for obtaining Federal permits for complex
projects such as APP and Alaska LNG. Title 11 establishes tight
deadlines and mandates simultaneous application, environmental
review and permitting decisions in a manner that cannot be
rationalized for a complex project proceeding through a phased
design and financial approval process.
A second set of issues that Title 11 mandates and
additional substantive requirements that fundamentally alter
the authority of any involved Federal agency to condition or
disapprove a proposed project. Under Title 11 each involved
Federal agency must make detailed findings regarding, among
other things, economic feasibility, alternative routes, social
economic subsistence and environmental impacts and public
values. The result being that if merely one agency disapproves
an application for the project, the project is deemed
disapproved in its entirety. These provisions render the
process unduly, unpredictable and risky.
None the less, these misgivings and issues, while crucial,
do not represent an indictment of ANILCA. Rather they serve to
highlight that the design flexibility inherent to ANILCA has
failed to come to fruition. In that vein and as it relates to
natural resources development in Alaska I would advocate the
Federal agencies embrace the collaborative design found in
ANILCA. We must strive to capture the balance originally
envisioned by the drafters and not forget the broad concessions
to development articulated in its provisions.
Thank you.
[The prepared statement of Mr. Kindred follows:]
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The Chairman. Thank you, Mr. Kindred.
Ms. Seidman, welcome.
STATEMENT OF ANNA SEIDMAN, DIRECTOR OF LITIGATION, SAFARI CLUB
INTERNATIONAL
Ms. Seidman. Thank you, Chairman Murkowski.
I testify today on behalf of Safari Club International, the
most influential hunting organization in this country. Safari
Club International has over 48,000 members and 177 chapters
throughout the world, two of which are in Alaska. Safari Club
members are passionate hunters and conservationists who live in
Alaska or travel to Alaska for the purpose of enjoying the
state's world class hunting opportunities. They hunt for both
subsistence and non-subsistence purposes and all are affected
by ANILCA.
Sixteen and a half years ago I joined Safari Club to pursue
a lawsuit that Safari Club had filed to challenge the Federal
Subsistence Board's Administration of ANILCA. Parenthetically,
it was that ANILCA lawsuit that later led Safari Club to
establish a multi attorney litigation department that has
pursued myriad lawsuits to protect hunting and sustainable use
management throughout the world.
As a result of Safari Club's ANILCA lawsuit, the Federal
Government acknowledged its obligation to fairly balance the
regional advisory councils with representation from both
subsistence and non-subsistence interests. Today, just as we
did back in 1999, Safari Club understands that ANILCA's purpose
is to provide a balance between the needs of the user groups
who must share Alaska's resources. Congress tasked the
administrators of ANILCA to conserve those resources to make
sure that ANILCA's hunters have wildlife to hunt and to fulfill
subsistence and non-subsistence needs on Federal lands in
accordance with sound management and recognize scientific
principles of fish and wildlife conservation.
Congress did not intend for the Federal agencies to operate
as though they alone had responsibility or authority to make
decisions about how to conserve and manage ANILCA, sorry,
Alaska's wildlife resources. Congress directed the Federal
administrators of ANILCA to cooperate with state agencies among
others.
Recently the National Park Service and the U.S. Fish and
Wildlife Service have chosen to ignore congressional intent and
have each invoked ANILCA as the basis of decisions to interfere
with Alaska State wildlife management and to deprive Alaska's
subsistence and non-subsistence hunters of hunting
opportunities.
The National Park Service finalized regulations on October
23, 2015 that prohibit hunting methods for wolves, bears and
coyotes that are often practiced by subsistence hunters. The
regulations demonstrate that the Park Service intends to be the
final judge of what are and what are not ethically appropriate
methods of hunting regardless of whether the State of Alaska
deems such methods legal. Instead of cooperating with the State
of Alaska in addressing this difference of opinion, the
National Park Service handed out edicts and then moved ahead
with regulatory prohibitions based on Park Service's assessment
of what constitutes appropriate hunting in Alaska.
The U.S. Fish and Wildlife Service is about to take similar
action. The agency has announced plans to utilize natural
diversity to manage wildlife on national wildlife refuge lands
in Alaska instead of recognizing ANILCA's goal of providing
wildlife resources for the needs of Alaska's hunting public,
the Fish and Wildlife Service intends to apply a hands off
approach to wildlife management. Rejecting the State of
Alaska's needs to balance its predator and prey populations the
Fish and Wildlife Service prefers to allow growing predator
populations to decimate the very prey populations upon which
Alaska's hunters depend.
The service chooses to completely ignore the words of
Senator Ted Stevens, one of ANILCA's key drafters, who
explained that natural diversity was not intended to prevent
the service from acting for the benefit of the use of wildlife
populations by man as part of the balanced management program
mandated by ANILCA. Like the National Park Service, the Fish
and Wildlife Service has ignored its obligation to cooperate
with the State of Alaska and instead is adopting rules that
contradict and undermine state regulations and statutory
wildlife management mandates.
For these reasons on the occasion of ANILCA's anniversary
Safari Club asks this Committee to remember the original intent
of ANILCA's drafters to remind Federal agency administrators of
their ANILCA duties to manage wildlife resources for the
benefit of Alaska's hunters and to make certain that resource
management decisions are made in cooperation with the state
agency that is responsible for statewide conservation and
management of wildlife. Only through an approach that maintains
a balance between providing for the needs of the hunting
communities and ensuring long term survival of all of Alaska's
wildlife resources can ANILCA's obligations be fulfilled.
Thank you very much.
[The prepared statement of Ms. Seidman follows:]
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The Chairman. Thank you.
Finally, we will hear from Mr. J.P. Tangen, welcome to the
Committee.
STATEMENT OF J.P. TANGEN, ATTORNEY AT LAW
Mr. Tangen. Thank you, Madam Chairman. I'm honored to
address you on this, the 35th anniversary of the signing of
ANILCA. My name is J.P. Tangen. I'm an attorney in active
practice in the State of Alaska.
I was first drawn to Alaska in 1975 in no small part
because of the pending determination that up to but not to
exceed 80 million acres of unreserved public lands in Alaska
should be withdrawn for addition to or creation as units of the
National Park Forest Wildlife Refuge and Wild and Scenic Rivers
system. To a young attorney advisor working for the Department
of Commerce here in DC, 80 million acres of land sounded like
an awful lot of land. Accordingly I relocated to Alaska and
have fought in the trenches up there ever since.
My primary vocation over the past four decades has been on
behalf of the mining industry although I did serve as Alaska's
Regional Solicitor for the Department of the Interior in the
early 1990's. I've also served for many years as Co-Chairman of
the Alaska Miners Association Federal Oversight Committee. And
on that committee, in that capacity, I've participated in the
analysis and comments on literally hundreds of initiatives from
Federal land managing agencies that would unilaterally burden
or preclude development of Federal, on Federal land, in Alaska
in direct violation of the clear language of ANILCA.
In the year 2000 I had the privilege of participating in
the publication of a collection of essays entitled, ``d(2),
Part 2, A Report to the People of Alaska on the Land Promises
Made in ANILCA, 20 years later.'' I recommend the book to you
for your bedtime reading and anybody here, for that bedtime
reading. It's relatively short, easily digested.
Among the articles included in d(2), Part 2 is the
testimony that Steve Borell, then Executive Director of the
Alaska Miners Association delivered before this very Committee
on August 10, 1999. It can be seen by a review of his testimony
that there have been, there were many open wounds on the table
20 years after the passage of ANILCA. And everything Mr. Borell
said then remains true today.
But the egregious misconduct of the U.S. Forest Service,
Bureau of Land Management, the Park Service, the Fish and
Wildlife Service has been a compounding of the ensuing 15
years.
I was asked to offer testimony at this time on ANILCA
including perspectives on the Act's impacts and suggestions for
improvements to the Act. I'll attempt to do so in the most
positive way possible.
When discussing ANILCA the primary concern of many
Alaskans, certainly those in the resource development industry,
is that ANILCA was held out to be a great compromise with two
cornerstone guarantees. First that there would never be any
more withdrawals of public land from the economic and social
needs of the State of Alaska and its people, that language is
in Section 101 of the Act. And second that under Section 1110
in exchange for restrictive burdens on what turned out to be
well over 100 million acres of land, Federal, in Alaska, there
would be adequate and feasible access for economic and other
purposes to the concerned land.
There are many other promises contained in ANILCA, as
Senator Ted Stevens observed in his preface to d(2), Part 2,
during the 20 years after passage Alaskans have witnessed many
disappointments and continue to do so.
Pursuant to mandate I will list some of the problems that
have emerged over the past 15 years and are ongoing to this day
and then I'll propose some suggested remedies with the hope
that this bitter battle can be brought to a conclusion before
resource development on Federal land in Alaska is totally
destroyed.
The resource development of the National Park Service has
employed a variety of tools to ensure that valid existing
rights to developmental resources in NPS units in Alaska are
never developed. In the case of Orange Hill, for instance, an
extremely valuable copper deposit in the Wrangell-St. Elias
National Monument comprising of patented land was deprived of
access by the Park Service on one hand, on the other because it
had no authorized access the owners were denied adequate
compensation for it.
Despite two--the owners literally went through the
Administrative process twice, to Congress twice and to the
courts twice seeking redress and finally they gave up.
Don't assume that because of this specific inholding is
referred to an isolated incident however. Comparable sagas
occurred in other areas of the Wrangell-St. Elias National
Monument, Denali National Park, Glacier Bay, Cape Krusenstern
and Bering Land Bridge, for instance. The methodology used by
the Park Service is predictable.
First a permit must be required. Then an environmental
impact statement must be prepared for which the applicant is
often asked to pay. The permit is denied and the applicant is
told it can never get a permit, no matter what he says, and
should sell the property to the Park Service. The Park Service
approves. The appraisal is conducted which disregards any value
for the resource. The applicant turns to the courts where an
unsympathetic Federal judge is arbitrarily constrained by APA
procedures. At the instance of the Department of Justice,
attorneys with an agenda rule against the applicant and the
applicant is reduced to appealing to the Ninth Circuit which
never saw a resource development project it didn't want to
scuttle. And this dance has various mutations, but the result
is always the same.
A similar exercise occurs with regard to access. The
National Forest Service, for instance, has the right and
obligation to permit logging roads through the Chugach National
and Tongass National forests. And although referred to as
logging roads they also are used by miners, hunters and local
communities, many of which are dependent upon logging and other
resource development projects to support their very
infrastructure. Both the national forests are known to be
replete with marketable timber and mineral resources. However,
as a result of the stridence of the Forest Service and the
APA's insistence that the agencies are the best arbiters of
their own mandates, the ability of Alaskans to use the forests
for resource development is vitiated. It's not to suggest the
NPS is any better with regard to access. Witness the Hale v.
NPS case or the Sturgeon case or Fish and Wildlife Refuges
service is sympathetic, witness the King Cove road problem.
The BLM, in its unique way, has determined to create
gigantic areas of critical environmental concern that have all
the earmarks of barring restrictions to land use and access
across public lands even though there's no particular
justification for doing so other than their planning process.
The BLM most recently dedicated teams of people with apparently
unlimited resources to prepare reports that run to the
thousands of pages to gut the purpose and language of ANILCA.
The expense of analyzing and opposing these works is
astronomical and ironically doing so is a total waste of time
because of the critical comments fall on deaf ears and the
agency does what it pleases without fear of reprisal.
In summary, although blocking access across development of
Federal lands was thought to be clearly precluded by ANILCA,
these preclusions have been ignored or are actively resisted by
the land managing agencies.
I'm well over my time. I'm sorry, I apologize for that.
I've listed a dozen recommendations with regard to actions
that the Senate should take. This Committee has a vested
interest for 35 years, for 40 years, this Committee has had a
vested interest in ensuring that Alaska was being treated
fairly by this.
I'm happy to answer any questions, but the bottom line is
after 35 years it's time that something happened to protect the
interest of the Alaska people.
Thank you, Madam Chairman.
[The prepared statement of Mr. Tangen follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
The Chairman. Thank you, Mr. Tangen.
Again, I appreciate the written testimony where you have
outlined that. Let's hope that in the questions here we have an
opportunity to lay some of those on the table.
I would like to start with you, Governor Walker, from kind
of the 30,000 foot perspective. You, I think, have articulated
well what it is that your administration and certainly the
congressional delegation here supports in terms of our
opportunities to access just a tiny, tiny portion of ANWR, that
area that has been set aside recognizing its extraordinary
potential.
You talk about compromise in a measure. Alaskans'
willingness to say, okay, here is an area that has been
designated for its energy potential, for its oil and gas
potential, but all we are seeking to access is four percent.
Yet when you think about the areas that Alaska has available
for oil exploration and opportunity, some 86 percent of what we
have or what we understand to have regarding our oil, is placed
off limits if this Administration's policies are finalized
here. We have seen some of those and many of them were talked
about here today.
It has been suggested that perhaps Alaska is too dependent
on oil. You have outlined a little bit of the situation that we
are currently in as a state with a pipeline that is less than a
third full, that as Governor you are dealing with a budget that
is not just having impact on Alaskans today. But if we do not
invest in our young people through education, if we do not
invest in our infrastructure for today, what future do we have
tomorrow?
I would like for you to respond to the suggestion. It is
not just from the one comment that we have heard today. There
are many who believe that Alaska should be that special place
where we just keep it in the ground. When I say ``keep it in
the ground,'' I am not referring to just the oil there. We know
that there are those who believe very strongly that ``keep it
in the ground'' means that that tree that came from the Tongass
National Forest, no trees should be harvested in the forest,
none of our mining resources whether our gold or copper or zinc
or whatever, coal, should be harvested.
As the Governor of the State of Alaska how do you respond
to those who would suggest that our state is too beholden to
oil, that we need to rely on something other than our natural
resources?
Governor Walker. Thank you, Senator Murkowski, for that
question.
You know, I get that question a fair amount. My response is
this. We are a resource state. We're the most resource rich
state in the nation. That was the deal when we became a state
that we'd be able to responsibly develop those resources, all
of the resources, not any particular one.
Yes, we'd love to have a widely diversified economy in
Alaska and we will, but to do that we need to get our cost of
energy down. That's what the AK LNG project and our natural gas
project developed our gas to the world market that's going to
help that.
Yes we have a robust tourism market in Alaska. That's
wonderful. We can't live off of any particular one of those. We
need a blend of those.
One of the biggest challenges in all exports in Alaska
isn't if you're going to find oil or if you're going to find
gas, it's if you can get a permit.
Governor Dalrymple in North Dakota talked about the
permitting process. He's frustrated. It takes almost a month to
get a permit there. Governor Fallin in Oklahoma talked about
the number of days that it takes to get a permit there, and
Governor Abbott in Texas talked about the number of days it
takes.
It takes us over six years to get a permit, and you don't
know if you're going to get it during that entire process. So
that's what's different in Alaska.
In Wyoming, which is about the same size as the North Slope
area, they have drilled 16,000 wells. We have drilled less than
600 wells in Alaska, and yet we're the most prolific oil/
petroleum basin in the world yet 600 wells versus 16,000 is
permits, the access.
I just can't let this opportunity go by without making some
comment about the Izembek Road. We can't have access between
communities. I know you are a champion of that, and I applaud
you for that. And I thank you for your leadership on that. But
we can't connect our communities with a road for health and
safety purposes and people are being helicoptered out during
the most inclement weather conditions you can imagine. There's
something wrong with the system that we cannot connect a
community by road because we're being stopped by the Federal
process.
You know, I'm a very strong states' rights person. And it's
time that we stand up and take control of our own destiny, of
our own future and I am one of the blessings of being a
nonpartisan independent is that I answer to 730,000 Alaskans as
you do. I have a job to do, and we're going to get it done in
spite of some of the push back we may get from the Federal
Government.
The Chairman. One more question, just specific to oil and
perhaps to oil and gas, including Mr. Kindred here.
What happens to the State of Alaska, Governor Walker, if we
are not able to continue operation of the Trans-Alaska
Pipeline?
Governor Walker. Well, it does generate about 90 percent of
our revenue, or it did before the drop in the price of oil, so
about 70 percent of our revenue would go away in the State of
Alaska. And that would, you know, sitting next to some of the
most prolific oil areas in the state, it would be absolutely
devastating and it would be unprecedented.
It would be unprecedented as a country that any state would
have that kind of a financial impact to us, not because of lack
of resources but lack of access to resources. Everybody in
Alaska is an environmentalist at some point or we wouldn't live
there. It's the most beautiful state, as you well know.
We don't want to do it to the detriment of the environment.
But there's also an economic climate that we need to be mindful
of that our rural Alaska areas, they have every right to
education, every right to have a flush toilet and electricity.
And we can't do that without developing our resources.
So what it would do to answer specifically your question?
It would shut down Alaska. It would turn Alaska into something
that we have not seen since prior to statehood. And what a
shame that would be because of lack, not a lack of resource,
but lack of access to the resource. That's unacceptable, and
that will not happen during this Administration.
The Chairman. Well, I thank you for your leadership on
that.
Not more than a couple months ago, we had an opportunity to
weigh in on a measure that would effectively lift sanctions on
Iran to allow Iran to put their oil out on the world market.
Yet we will deny it from U.S. soil from Alaska. It just seems
incredible to even think about that.
I wanted to ask you a question, Mr. Kindred, because you
raised the issue. You spoke directly to the issue with regards
to Title 11 and how within Denali Park because we have been
working to try to ensure that when we have an opportunity to
move our gas that we do not have limitations in terms of
access. So we moved through this Committee, through this
Congress, a provision that would allow for a natural gas
pipeline to cross through a segment of Denali.
You have indicated that this process is ``inflexible and
impractical,'' I think were your words. Is this fixable?
Dealing with the Section 11?
Mr. Kindred. I think it is fixable but it's difficult.
The Chairman. Title 11?
Mr. Kindred. To--because it's not an indictment of the
intent. Part of the problem is that when it comes to Federal
agencies, as Governor Walker highlighted, the response time is
less than ideal. And when you talk about multiplying the number
of agencies that you have to get approval from, you know,
there's a great deal of angst for developers in Alaska when
they know that they have to rely on a Federal agency to grant a
permit.
I think part of the problem is academically it makes a lot
of sense that you have this, sort of, one stop shop where you
can get the approval you need from the litany of agencies. But
part of the problem is that it creates temporal issues. It's
hard to do it on the right timeline.
But I think it's people are also pessimistic about the fact
that, you know, getting one agency's approval is difficult
enough at times. And expecting a wide spectrum of agencies to
all approve within a fairly short timeframe I think what you'll
see is that companies aren't even going to take that path.
They're not even going to try. They're going to try to figure
out a different way to do it.
I think that's the lesson in and of itself is that if
there's supposed to be an inherent flexibility and there's
supposed to be an avenue for companies to take and they're
choosing to try any other method. I think that, in and of
itself, is an indictment of the process.
As far as how to fix it, I think there are people who are
far more intelligent than myself who can give some insight. But
I think part of the problem is it's not necessarily the Federal
regulators in Alaska. It's the fact that it's people 4,000
miles away who are ultimately making the decision that may be
ideological in nature as opposed to practical. We are losing,
day by day, year by year, faith in the fact that reasonable and
prudent answers will come.
We've seen it time and time again in oil and gas
operations. And I think there's just, for lack of a better
term, a lack of faith that there will be fidelity of process.
And so it's not, you know, to repeat, I don't think it's that
it was ill intended. It's just I don't think it can work in
practice.
The Chairman. Well, it seems to take us back to that
promise that we would not be turned into this, ``permit
society.'' That was something that Senator Stevens was
concerned about. Based on what I hear when I am talking to
folks back home, we turned into that permit society some time
ago. I think it was you, Senator Coghill, that used the term,
that opportunities are being strangled because of this.
Let me ask, and I will throw it out to several of you
because as I spoke in my comments, and I think I heard many of
you refer repeatedly that ANILCA was this compromise and that
the balance that was sought through this compromise has been
lost. It has been eroded, and my perception of it has been that
it has been eroded because the agencies are seeking to define
it as they wish rather than as it was written.
As we think about how you move from original Congressional
intent to where we are some 35 years later, I think, as we look
to how we can address the fixes, it is important to understand
how we came to where we are right now.
Just this year, again, we all know that the Fish and
Wildlife has proposed another 12 million acres of wilderness
there in ANWR, and the agencies are arguing. I will probably
direct this to you, Senator Coghill, that their Organic Acts
and FLPMA, the Federal Land Planning Management Act, allow them
to make these recommendations, that it is not contrary to
ANILCA here but that we have the ability within the agencies to
basically provide for these interpretations and allow for such
recommendations to be made.
Mr. Tangen, given the history that you have with ANILCA, I
am interested in your views as well.
We talk a lot about administrative creep, regulatory creep
and overreach. Is that what we are dealing with here or is it
more pernicious? It's a great word, pernicious.
Go ahead, John.
Mr. Coghill. Senator, thank you very much.
The Organic Acts go back quite a ways. We had the Alaska
Organic Act and then the Federal Land Policy and Management Act
(of 1976), FLPMA, but ANILCA was meant to specify some very
specific land uses and guarantees to the state which were not
outlined in FLPMA. In fact they were very general.
So I think the answer to that question is in the balancing
of the interest you found a huge interest in the conservation
of the lands and the preservation of lands which many people in
Alaska were okay with. It's just that they didn't want their
livelihood taken away.
So on the one hand you have people who, through the d(2)
lands discussion all the way up through the passage of ANILCA,
we're looking at okay, conservation, preservation. We
understand the beauty that we live in. As a matter of fact many
of us in Alaska have done very well both at the state level and
at the local level.
But we have to look at the land in Alaska as productive
land and land for conservation. So we want to conserve our
forests, for example, but we don't mind harvesting them. But
the preservation wilderness designations within say, Tongass,
have continually crept in and taken over guarantees that were
even allowed under the Tongass National Forest ruling.
So I think ANILCA was very, very specific where FLPMA was
very, very general. It was meant to overrule and specify in
many places.
So, some of the things that I think Alaska felt that we got
left out on was when we put together in the ANILCA Act that
there would be a Land Use Council where Alaskans would be able
to sit at the table. The tethering kind of got loose in there,
and we probably would have been able to have that discussion
about the difference between what's going on with the Federal
Land Policy Management Act and ANILCA there.
But as Mr. Tangen brought up, we had a hard time getting
that discussion even with the Land Council. But since the Land
Council has been sunsetted, I think we have lost the ability to
even sit at the table with agencies and remind them of the
ANILCA promises.
The Chairman. But it is your belief, is it not, that were
we to reinstate the Alaska Land Use Council that that would be
a forum for us to engage? I think, Governor, you had stated
that as well.
Senator Coghill. I think that's one of the answers.
Senator, I do believe that's one of the answers that's
going to help tie us back to the law.
The Chairman. Okay.
Mr. Tangen.
Mr. Tangen. Yes.
Senator, I think that I obviously agree with, you know,
Senator Coghill's comments. As an attorney you'll appreciate
the fact that as a general proposition of law a later and more
specific law it governs an older and more general law. And so,
therefore, each of the Organic Acts of the various land
managing agencies must be read through the filter of the
language in ANILCA. And I think that it is not a significant
burden on the agencies for them to certify Federal register
notices, for instance, that they, the actions the agency is
about to take complies with the ``no more clause'' and the
equal--in the access provisions of ANILCA.
I think that the main, you know, one of the main problems
that we have and again I think tailgating a little bit on what
Senator Coghill said, is that the Forest Service has no more
foresters in it. They're land--they're planners. The BLM has no
more mineral exports or land managers in it. They're planners.
And those planners have literally unlimited resources to
spend all their days compiling huge documents which cannot be
reasonably analyzed, especially by the private sector where we
have other things to do. And even if their documents are
analyzed and they're criticized, etcetera, we're in a situation
in which they are, our comments, fall on deaf ears and the
documents proceed to gather dust on the shelf. We have
literally no major opportunity to redirect the way that the
land managing agencies are fulfilling their perceived
responsibilities.
Of course, I agree very much the Land Use Council ought to
be revitalized. I think that it's an incredibly critically
important function to have people at that level who are
communicating directly with regard to what the law requires
concerning our state.
The Chairman. We can suggest that this is regulatory creep
or perhaps it is just a failure to understand the law, but
ANILCA is unique to Alaska. You have a lot of decisions that
are made here, 4,000 miles away.
You have new people that are coming into an agency that not
only do not know Alaska, but they do not know the laws
applicable and they do not understand ANILCA. We have lost some
of that institutional knowledge.
When you were here as solicitor many years ago a lot of
people understood what was going on because it was current, and
we have ANILCA sensitivity training that goes on within the
agencies. The question is if we were to ensure that there is
greater understanding of the law do we gain the respect? I
think it was you, Senator Coghill, that said that basically
Alaska and ANILCA is being disrespected. Is it disrespect
because they do not know? We have just had too much separation
of time. Or is it knowing disregard of the law?
Governor.
Governor Walker. Senator Murkowski, I afraid some know it
very well and they may--they're acting, but they are acting as
though it either didn't exist or it exists for a different
purpose. I'd like to think it's innocent error on some peoples
part in the agencies, but I don't think that's the case.
The further you get away from the statements that President
Carter made at the signing, the more that it's been, sort of,
that has been dimmed in the, over time, unfortunately. And
people don't go back and look at what the original intent, the
original discussion was and the deal.
You know, a good friend of mine, former Attorney General
Charlie Cole, always says, here's the deal. And the deal was
that we would get, it was a balance. It truly was a balance.
We got something out of that legislation, and that was the
intent, that was the clear intent. But we have not gotten the
deal, and so I think there are those that ignore it for
whatever reason that they want to.
The concern I have is with 62 percent of Alaska lands
controlled by the Federal ownership, 66 percent of our park
land, the nation's parks are in Alaska. When a national law is
passed it impacts us just unfortunately because of the sheer
volume of our land that is Federally regulated, Federally
owned.
So ANILCA was to, sort of, set us aside, to say here's a
different view on Alaska for a number of reasons. Number one is
because of the Statehood Compact. Number two, we aren't
supposed to live off our resources.
So we are--it was created to do a set aside so we have,
sort of, a different deal. We haven't gotten that. And so those
have come in, some of them come in, and said, openly, how can
we get more? How can we ignore that ``no more clause'' and how
can we get more in the way of set asides? And that wasn't what
the deal was.
So I don't think it's for lack of knowledge. I think that
it's some have plenty of knowledge of how the law is supposed
to work but it's interpreted to their own particular mission
and that has not been healthy for the economy of Alaska.
The Chairman. Let me ask you about the state land
selections. In your testimony you mention the lingering impacts
of the 160 million acres that are under the public land orders
that were put in place after 1971 with regards to Alaska Native
Claims Settlement Act. Now that all those selections have been
made are the land orders that are still out there are they
preventing or limiting the state now from making final
selections, in your view?
Governor Walker. They are, Senator, they are. It's causing
some problems. There's some issues associated with surveys and
processes of surveys that are working their way through the
companion regulatory processes of the State of Alaska as well
as on the Federal side.
That's something that we'd like to accelerate to get the
rest of the land or what the--at least that part of the deal, a
discussion about the potential land exchanges. So there's a
number of things that are ongoing on that regard.
The Chairman. Okay.
Senator Coghill.
Senator Coghill. Thank you, Madam Chair.
One of the issues on withdrawals is the 17(d) lands that
now should be withdrawn. In fact BLM actually recommended to
Congress some years ago that they be vacated. But based on
those lands still being held and not withdrawn, now we have
some of these newer issues like the administrative withdrawals
that are so contrary to Section 13 of ANILCA.
So yes, I think we have to get those things settled so that
clear title can be given to the state, the Native Corporations.
Those things have to be settled. So I think the public
landowners that are under the 17(d) rule should go away. I
think Congress should act. That would be one of the
recommendations that you'll see coming from the Citizens
Advisory Commission.
The Chairman. Good.
Well I appreciate that because it is something that, again,
if we can't get these fully and finally resolved.
I note the map that you have behind you, Governor, that
indicates those lands that are held by the Federal Government
and those that are state or native lands.
[The information referred to follows:]
[GRAPHIC] [TIFF OMITTED] T8964.024
And you think about that checkerboard that we deal with as
a state. When we talk about access, whether it is access for
the people of King Cove to an all-weather airport for public
health and safety issues, a ten mile, one lane, gravel, non-
commercial use road does not seem like too much to ask for. But
again, Senator Coghill, you mentioned the miners in Fortymile
and the issues that they have with accessing their areas for
purposes of pretty small mining activity.
Senator Coghill. Right.
The Chairman. Some mom and pop operators out there that
literally are choked off from any access to the resources. Yes?
Senator Coghill. And on that point there's a redefinition
and redesignation happening while people have made financial
and lifelong investments.
First of all----
The Chairman. Are areas of critical environmental concern
(ACEC).
Senator Coghill. Yes, areas of critical, yes.
The Chairman. What is that, an ACEC?
Senator Coghill. Yes.
That is a new designation that falls under some of these
land use issues. In fact, one of the recommendations you're
going to see coming from the Citizens Advisory Commission on
Federal Areas is that those be stopped. They're contrary to the
law. They're being used by the agencies to treat areas of
critical concern with the idea of looking at wilderness
characteristics. It's another withdrawal, and it violates the
``no more clause'' so significantly that it's blatant.
So as the Governor said, these are not areas where there's
a mistake, but it's actually purposefully driven. However, if
we did do the Alaska Land Use Council or some ANILCA training
it would at least have to bring them out into the light because
this thing is done, as Mr. Tangen said, with reams and reams of
paper that no person who carries on a normal life can answer.
In fact I was listening to one of the members viewing the
testimony today who was actually a nonprofit agency that helps
people interpret in the local areas what this means to them.
And it's just--it gets that frustrating.
But to those miners in the Fortymile area, they're actually
being redesignated out of existence. It's just wrong.
The Chairman. We will have an opportunity to bring before
the Committee, as Senator Cantwell has suggested, some folks
from within the agencies. I have talked to them about what
exactly does an ACEC mean, and I am told, oh, no, no, no, this
is not a withdrawal.
Well if it walks like a duck and quacks like a duck, it is
a duck. I think we need to have this conversation in terms of
you just cannot change the name to say that this is not a
withdrawal for purposes of access and a significant issue for
us.
I want to turn a little bit to the issue of fish and game
and some of the differences, I think, in philosophy that we are
dealing with between the state and certainly the current
Federal game management officials at Park Service and Fish and
Wildlife.
Mr. Arno, you have clearly spoken to this in your
testimony, and Ms. Seidman, you certainly referenced it in
yours as well. It is as if we have a Federal side that is
saying what we are doing when we are managing our fish and
wildlife it is to protect a species versus the state's
perspective or view that what we are doing is we are managing
for abundance and opportunity. You have got some clashes that
we are certainly seeing in play right now.
You mentioned, Mr. Arno, the Park Service's new policy that
went into effect just a couple weeks ago designed to prevent
any manipulation of natural systems that will lead to less
wildlife for all users whether they are sport hunters,
fishermen, subsistence hunters and fishermen. It seems that
this divergence of views or this just different philosophy
about the management of fish and game on these lands is just
moving further and further apart.
Your comments to that, both Mr. Arno and Ms. Seidman.
Mr. Arno. Thank you, Senator.
It's a difference between conservation and preservation.
That conservationist, in a true form, are people who
participated in extracting a renewable resource for a food
source.
Preservationists are just set aside and it's more to
address the atonement of a nation that marched across the
continent here and, you know, did not leave full ecosystems
that have active predator/prey management to provide that food
source.
That, you know, when we sat through the d(2) hearings and
we listened to that the state would still be able to manage
fish and game, the resource, for conservation, it was still
that they would because the state has in its constitution that
Congress accepted the sustained yield clause, that you would
only harvest enough of that was a harvestable surplus so you
would still have abundant populations of both fish and game.
And that, you know, trying--it has always amazed me that
preservationists who want to stop the opportunity of managing
that fish and game for abundance don't realize that here we
are. Here's a renewable resource that's solar powered.
I mean, you know, look at our moose. They're eating willows
that grow every year and rivers come through wash it out and
they grow again. And so we've got 550 pounds of meat off of a
moose that doesn't have any hormones in it or hasn't been in a
feed lot. And it's just a matter of being able to harvest that
resource on a renewable basis, sustained yield.
And to try to get people who have spent now generations of
their lives in urban areas and they look at hunting just as the
sport of it or that you're, you know, just collecting a trophy
to put on the wall. It's--that's a hard perception to try to
get across to people, particularly east of the Mississippi
where you've only got like four percent of the National Park
lands.
So that's something in education that we tried to get out
to the public.
The Chairman. Ms. Seidman, can you speak to the impact that
these new Federal regulations would have on fish and game for
all users within the state?
Ms. Seidman. Well, one of the things that I think we've,
the Safari Club, has highlighted in our comments on the
National Park Service regulations and we'll comment when we
address the Fish and Wildlife Service changes when they are
proposed, is that the Federal agencies appear to be trying to
manage wildlife on their lands as though there are walls around
their lands, as though they are isolated from the remainder of
Alaska, as though you could manage a population on one area of
land that travels back and forth from state lands to Federal
lands.
And what the, you know, what the Federal agencies are
refusing to recognize is that the state has the responsibility
to manage the wildlife regardless of where that wildlife is
whether it's on state lands or Federal lands. It's all one
population, and it's all supposed to be managed for the benefit
of Alaska's users. So that would be Alaska residents, both
subsistence and non-subsistence and also those who visit Alaska
who are taking advantage of the opportunities.
These Federal changes, these new mechanisms or methods for
managing wildlife are going to have a huge impact. They may not
immediately have an impact, but they're going to have a huge
impact. The National Park Service regulations. The Park Service
is heading into territory where they now are going to be making
decisions about what is appropriate in terms of take of
wildlife, of fish and wildlife. They dodge it, as best they can
in their comments on their regulation, but it comes out in
little places and where they want to dictate what qualifies as
non-subsistence hunting. What's appropriate for non-subsistence
hunting? And the regulations actually give the Superintendents
of the individual park areas that are affected, the ability to
make decisions as time goes on without going through a full
regulatory process, but just say, you know, we're going to make
a list later of what is or is not appropriate on Federal lands.
For Fish and Wildlife Service lands it's much greater. The
Fish and Wildlife Service is going to attempt to manage refuge
lands in accordance with natural diversity principles. They've
already been doing this. They did this with respect to a
caribou population in a relatively isolated area, but they
essentially told the state agency that the agency couldn't come
in and remove seven wolves that were decimating a caribou
population. They basically said we'll arrest you if you come in
and do what you were, you know, do management to protect that
prey population.
The approach that the Fish and Wildlife Service wants to
take is that if a predator population is going to do away with
a prey population, that's natural and that's perfectly okay.
That will have a huge impact on both subsistence and un-
subsistence users and it's directly in conflict with ANILCA and
what was intended for ANILCA by its drafters.
The Chairman. I think it is important to recognize that
when we are talking about these regulations, whether it is
coming from Park Service or Fish and Wildlife, that while they
may be saying we are impacting what is on Federal lands, it
also has impact on those fish and game stocks and species that
are on state land, that are on private land, that are on native
land. Again this clash that we are seeing and the erosion or
the threat to the ability to the state as manager, I think is a
very real concern that we are dealing with right now.
I do not want you to get off the hook here, Ms. Brown.
Don't think that we are ignoring you. I have just got so many
things that I want to try to get out on the record here today
that we are just simply not going to have sufficient time. Let
me ask one question though to you about some of the comments
that you have made.
You have indicated that the integrity of ANILCA, and I do
not know if that is the right word but I will use it anyway,
that the integrity of ANILCA was threatened almost as soon as
it was passed. You and I will agree or disagree on some of the
issues, certainly as they relate to accessing oil resources
within the ANWR. I know that you have got concerns about the
impact of what we have in front of us in the Sturgeon case on
navigable waters.
Given the narrow scope of certainly the brief within the
Sturgeon case, where I would find it totally unexpected for any
court decision to have any impact, say, on the subsistence
protections of--that are covered under Title VIII. Do you have
any other concerns about ANILCA's ability to protect Alaska's
treasured places, as President Carter said?
What I think you have heard everybody else on the panel say
today is that the protections that were in place, that were put
in place, that were part of this compromise, that were part of
this balance have been eroded because it has tipped in favor of
that preservation as opposed to being able to access those
resources. Your comment?
Ms. Brown. Well, I disagree that the protections have been
eroded, and I think there's some misinformation about exactly
how some of the provisions in ANILCA work.
I think a couple of good examples of that are the Park
Service regulations you were just talking about. I know the
comprehensive plan that the Fish and Wildlife Service has done
for the Arctic has been a particular point of contention for
you.
And I think it's important to realize that ANILCA set up a
process that provided for the Fish and Wildlife Service to do
active review of wilderness values in all of the refuges in
Alaska in that Section 304 of ANILCA and it made
recommendations, excuse me, in that comprehensive conservation
plan. And those recommendations are just that, for actual
wilderness designation that has to go back to Congress. And
what I hear here is people saying the process of the studies
that ANILCA directed and the processes that it set up for the
Federal agencies to manage their lands are a violation of
promises that were made. But those, the land management
decisions that the Federal agencies are implementing are
specifically called for in various sections of ANILCA.
The National Park Service, for example, was expressly told
in Section 201 to follow its other governing laws as well as
the provisions of ANILCA.
And in the case of the predator control regulations those
are in direct response to a growing, active predator
suppression program by the State of Alaska. And it is in direct
conflict with ANILCA and the Park Service Organic Acts.
Management dictates for predators.
The things that the regulations in National Park Service
regulations ban are not all wildlife management decisions by
the state. There's a long standing agreement that the state is
managing wildlife on Federal lands where it's compatible. And
as we know, it's not always compatible.
We've had decades of litigation and debate over how to deal
with the subsistence problem. And here on National Park Service
lands with the recent growing, aggressive state predator
suppression program, the Park Service went multiple times to
the Department of Fish and Game and the Board of Game and said,
these particular practices, killing of wolves in dens, baiting
grizzly bears, taking sows with cubs, these things are
antithetical to how we manage wildlife on park lands. Can we do
something about it? Can we amend state regulations? Can we try
to make our mandates work together?
And that happened, some version of that happened over 60
times by my count before the National Park Service started
implementing temporary regulations every year. And this year
they finally adopted final ones. But that's been a long time
brewing, but they're not acting in conflict with ANILCA or
denying access for hunters or violating any other of the many
provisions of ANILCA that are designed to allow access and
continued hunting. They're very focused on violations of Park
Service----
The Chairman. I think that is another area where we would
certainly separate and disagree on in terms of how the Federal
agencies have worked with the state agencies. It has literally,
in my view, been a railroad over our state agencies which is
unfortunate as far as management of and recognition that it is
only through Congressional direction that that wilderness
designation can be made. We understand that, but we also know
that what happens is it becomes wilderness, basically a de
facto wilderness through the management then that comes about.
We talked earlier about how you kind of creep forward and
next thing you know you are in effective wilderness status
where you cannot move. You are strangled, to use Senator
Coghill's term. So I think this is one of the things that we
are trying, as Alaskans, to really get out there on the record
that when the legislation that was agreed to, mightily debated,
and agreed to. The legislative history is so clear on its face
that ``no more'' means ``no more.'' Not only no more
designations, but no more studies to determine whether or not
we should be doing more.
As we look to where we are now 35 years later, I think, it
is a miserable trail of continued broken promises to a state
that has more opportunities than most any place that I can
think in terms of what it is that we have but our ability to
get to it, to utilize it, is just held back at every turn.
We've been going now for almost two hours. What I would
like to hear, very quickly, from each of you is we are going to
have an opportunity for much more input on ANILCA, on the
promises made to our state by the Federal Government and ways
that we can get back into balance.
If each of you could provide two key priorities, two things
that you think could help us address how we return to a level
of balance, I would like to hear them. I am going to limit you
to just two, but you will have an opportunity to weigh in for
more and most of you have provided in your written testimony a
whole series of them. So I am going to have you pick between
your favorites and offer up two of the suggestions that you
think that we should be turning to from the perspective here in
Washington, DC to help address the promises made to Alaska.
Governor Walker.
Governor Walker. Thank you, Senator Murkowski.
I come from local government. I believe local government is
the purest form of government because it's closest to the
people. I think the further away from the people decisions are
made the more challenging those decisions become.
I would love to see, I know we've had, contingents come to
Alaska from Washington, from Congress, to view our beautiful
state. I would welcome that again.
So that's one thing would be to have them come to Alaska to
show them our opportunities in Alaska, why we would be the
eighth largest, most energy rich nation in the world if we were
a nation rather than a state. So that would be one thing.
Secondly, I think that the agencies--Congress makes the
laws, the agencies apply regulations and carry them out. We
need to have a relationship with the agencies such that they
truly understand the impact of what they're doing----
So I'd like to add that to the--have the agencies come up,
not just during the, when the silvers are running and Seward or
Valdez or when the Copper River Reds are in Cordova, but during
the winter. During the winter when our rural areas are trying
to meet their energy needs and see a side of Alaska that we
deal with that isn't during the particular height of a tourist
season.
So I'd like there to be some way that they could see the
other part of Alaska. We don't get a lot of Congressional
delegation too, I know, because of the timing. But I'd like
them to see, sort of, the rest of the story, as Paul Harvey
would say.
The Chairman. Well, know that in February, in Bethel, we
are looking to have a field hearing out there looking at some
of the energy issues that we face in the state. I am hopeful to
be able to entice several of our colleagues for an Alaska
winter tour.
And on your first point about getting lawmakers up and
understanding Alaska, as you know there was legislation, the
ANWR Wilderness legislation, that was introduced yesterday. A
colleague of mine who happens to hail from the East Coast back
here has been to Alaska before, and he has been out to the ANWR
area. He asked to meet with me, and we met for close to an hour
where he could just ask questions about trying to understand a
little bit more of Alaska's economy.
I have been here in the Senate now for almost 13 years, and
I have to tell you, I was really quite struck by the fact that
a colleague before he signed onto legislation that related to
one person's state, one person's state, that he came and asked
for perhaps a more thorough review. The good news is that he
has not signed on to that legislation yet.
Senator Coghill, your suggestions?
Senator Coghill. Thank you, Senator.
ANILCA is Alaska specific. Our constitution certainly was
authorized by Congress so there's a partnership, and if we
don't do something to make that partnership work better I think
we have failed both the Federal and national interest and
Alaska's interest. And so I think the Land Use Council has to
go in, either reconstituted or reinstated, in whatever way I
think Congress can help us tie us together because since it is
so Alaska specific the impacts are great. Since it's a national
interest we need to understand those national interests.
I think Alaska's heart, as said here previously, has been
conservation minded but production oriented. And I think those
are both well taken. And I think we've been good trustees on
both accounts.
We probably have some of the best records for developing
areas in, kind of, the green field operations in the world. So
we have a lot to be really pleased about.
The other thing is I think Congress should go back and lift
the 17(d) withdrawals. Take the advice from BLM because that
will start clearing up title. And when you come to land issues,
if you have title questions, then you can't move forward.
So those two issues probably would be key in my mind.
The Chairman. Okay, great. Thank you.
Mr. Arno.
Mr. Arno. Yes.
One of the first things that the Outdoor Council would like
to see would be defining who has the authority and where that
as far as the Submerged Land Act and as far as access to
navigable waters because of the large size of Alaska and the
conservation system units that those waterways were the
transportation corridors just for commerce. And that how many
times we've litigated and tried to get litigation settled to
determine that where each land manager has the authority.
Clearing that up would be extremely important.
The second would be back to: nothing in ANILCA diminishes
the state's authority to manage fish and game. That one, you
know, it, the controversy between preservation and conservation
is going to remain until the state can go ahead and manage the
resource as the constitution, State Constitution, allowed them
to.
The Chairman. Thank you.
We have not talked much about the Sturgeon case but I think
we, as Alaskans, recognize the significance of this case before
the Supreme Court coming up this next year and what that is
going to mean in terms of more clear definitions regarding who
has that authority.
Ms. Brown, your recommendations?
Ms. Brown. Thank you again for the invitation today. I
really appreciate it.
I think maybe the most important thing that can come out of
this is recognizing that not all lands can be managed the same
way. Alaska owns as much land as the entire mass of California,
Washington and Oregon combined. We need to use the conservation
opportunities that are given to us by ANILCA to address the
climate change threat and to help Alaska move to a sustainable
energy economy.
Thank you.
The Chairman. Good, thank you.
Mr. Kindred?
Mr. Kindred. Thank you, Madam Chair.
Not to speak in platitudes but I think, you know, the
common things we see when we deal with Federal agencies are a
lack of accountability and a lack of transparency. And what I
mean by that is often times when we are dealt a decision that
is patently unfair and oftentimes patently illegal we have to
engage in years of litigation to get a remedy. And even that
remedy, in and of itself, isn't particularly satisfying.
And I often think about the litigation I'm involved in and
at the end of the day there really isn't any accountability.
There's no skin in the game for these Federal agencies even if
six years later as the Ninth Circuit rules in our favor they
just go back and they do something that's slightly different
and we begin again. I don't know exactly the mechanism or the
medium by which we can hold these Federal agencies to be more
accountable, but I think if there was a manner that was short
of litigation but that had some concrete remedy, I think that
would be beneficial.
And the other is transparency in the sense that there are
so many layers of Federal regulations now and so many different
laws that apply that it's often difficult to engage in a
discourse with a Federal agency and get a true answer as to
what they're doing, when they're going to do it and that
creates a great deal of uncertainty. And from the members that
I represent, you know, uncertainty is toxic. And so if there
was more transparency we'd have a better understanding of why
Federal agencies were doing it and who to speak to and had some
mechanism to have that conversation that would also be
beneficial.
The Chairman. Thank you. That is important.
Ms. Seidman.
Ms. Seidman. Thank you, Madam Chairman.
I would look for clarification that state managers are and
I say, at least so at least on an equal level with their
Federal counterparts when it comes to wildlife management
decisions that affect both Federal and State lands and users
and all users.
And the second one would be to make sure that the Federal
managers adhere to ANILCA's requirements for management of
wildlife that concerns all wildlife in balance. And that would
include a balancing between predator and prey species.
Thanks.
The Chairman. Thank you.
Mr. Tangen?
Mr. Tangen. Yes, Madam Chairman.
If you're going to reduce it down to two points there are
only two points here actually. First of all is ``no more'' and
second of all is access. And so with regard to ``no more,'' we
have to find a way to ensure that the land managing agencies in
Alaska understand and are committed to and held accountable to
the precepts in the statute that there will be no more lands
studied for, contemplated, advanced and anything else for the
restricted access and uses.
To be perfectly clear I am not particularly concerned about
the existing conservation system units. I think that what we're
concerned about is the public domain lands and the Forest
Service lands which are now being thrown into the bucket. If,
in fact, there's concerns with regard to how the Park Service
manages it, those lands were already tied up, so to speak.
But I think that the second point, the second bookend in
regard to this is access. And access comes in a variety of
flavors, obviously. There's R.S. 2477 rights-of-way. There's
submerged lands, etcetera, navigable waters.
I would ask that Congress pass language similar to what it
has in ANILCA concerned tentatively approved lands for
statehood selections that says that all navigable, all waters
in Alaska, no matter how small the puddle is, are navigable
unless the Department of the Interior can establish otherwise.
Okay? And so therefore the lands are presumed navigable and the
burden of proof is on the Federal Government to prove
otherwise.
In the same sense the R.S. 2477 when it was repealed in
FLPMA, specifically acknowledged the fact that pre-existing
rights of way would be continued to be acknowledged. And I
think that what we need to do is we need to say that the State
of Alaska, as directed, identified a series of R.S. 2477 rights
of way and those R.S. 2477 rights of way, by statute, ought to
be recognized as existing access corridors in the State of
Alaska.
And to put a little bit of ribbon around it, they need to
have a 50 foot from the center line right of way. They need to
have borrow pits that are within what the people who want to
develop those rights of way have--would consider reasonable
access.
So on those two bookends, no more and access, I think that
we can solve all the problems that a lot of us have with ANILCA
right now.
The Chairman. Thank you, Mr. Tangen.
I thank each of you. I appreciate the time that you have
given, the fact that you have all come from very far away to be
here to represent so many different interests. As I mentioned I
still have a boatload of questions that I would like to get out
on the record whether it is how we can work to have ANILCA
working for us again.
How we can do better for our small mining operators that
seem to be just struggling daily trying to understand this
Byzantine process that we put in front of them. How we work to
really find that balance. How we make sure that our sportsmen
and women, as well as our subsistence hunters and those who are
fishermen, that there is, there is access because we have
managed well. We have managed in that sustainable way that is
set forth in our own constitution.
We have just scratched the surface, I believe, and know
that there will be more to come on this.
As I mentioned in my opening comments we have received
written testimony from other groups that want to be included as
part of the record. Anyone who wants to submit testimony, we
will have this Committee record open until Wednesday, December
16th. If any of you would like to supplement what you have
provided in writing or here to us today, know that that will be
welcomed as well.
This is an issue that, for us as a state, is critical. I
think it is critical to our economic future, and I think it is
critical for our identity as Alaskans.
We, as a state, came into this union with a promise that it
would be our lands that would sustain us. We were told you are
never going to have enough people to have that viable tax base
to count on, so we expect you to be independent. We expect you
to utilize your resources. And I think that is the wish and
desire of Alaskans and to access those resources in an
environmentally responsible way, a sustainable way and one that
makes us, as Alaskans, proud.
I mentioned to a colleague just the other day that I will
judge my success as a parent knowing that my sons will want to
come back to Alaska as a place that they call home but they are
able to come back to it as a place where there are strong
economic opportunities for them and the love of the land that
we have as Alaskans is able to be maintained, not only for me
and my husband and our boys, but for generations of Alaskans to
come.
And for those who want to see Alaska before I die, we want
it to be that beautiful promise to them as well. And that is
our commitment to them.
I believe each of you believe that we can access our
resources, that we can keep that promise and do so in a way
that is not contradictory. Sometimes the challenge that we have
back here is allowing the rest of the people, who do not know
Alaskans, to understand that we too care about our environment,
that we too care about development of our resources. We are
charged with a great responsibility and we take it up
willingly, and we are proud of the job that we do.
So thank you for the jobs that you do in representing so
many, and thank you for taking the time to be here to establish
this record for us.
We have a lot of work ahead of us, but thank you for
beginning the conversation.
And with that, the Committee stands adjourned.
[Whereupon, at 12:11 p.m. the hearing was adjourned.]
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