[Senate Report 105-93]
[From the U.S. Government Publishing Office]



                                                       Calendar No. 185

105th Congress                                                   Report
                                 SENATE

 1st Session                                                     105-93
_______________________________________________________________________


 
                HUNA TOTEM CORPORATION LAND EXCHANGE ACT

                                _______
                                

               September 30, 1997.--Ordered to be printed

_______________________________________________________________________


  Mr. Murkowski, from the Committee on Energy and Natural Resources, 
                        submitted the following

                              R E P O R T

                             together with

                            ADDITIONAL VIEWS

                         [To accompany S. 1158]

    The Committee on Energy and Natural Resources, to which was 
referred the bill (S. 1158) to amend the Alaska Native Claims 
Settlement Act, regarding the Huna Totem Corporation public 
interest land exchange, and for other purposes, having 
considered the same, report favorably thereon with an amendment 
and recommend that the bill, as amended, do pass.
    The amendment is as follows:
    Strike out all after the enacting clause and insert in lieu 
thereof the following:

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Huna Totem Corporation Land Exchange 
Act.''

SEC. 2. AMENDMENT OF SETTLEMENT ACT.

    The Alaska Native Claims Settlement Act (Pub. L. 92-203, December 
18, 1971, 85 Stat. 688, 43 U.S.C. 1601, et seq.), as amended, is 
further amended by adding a new section to read:

``SECTION  . HUNA TOTEM CORPORATION LAND EXCHANGE.

    ``(a) General. The Secretary of Agriculture referred to as 
(``Secretary'') in this section in accordance with the equal value 
provisions of section 22(f) shall, subject to valid existing rights and 
easements, convey to the Huna Totem Corporation the surface estate to 
the Federal lands described in subsection (b)(2) of this section and 
convey to Sealaska Corporation title to the subsurface estate in such 
lands.
    ``(b) Description and Deadlines. The land to be exchanged is 
located in the Copper River Meridian and is further described as 
follows:
          ``(1) the surface and subsurface estates to the land to be 
        conveyed by Huna Totem Corporation and Sealaska to the United 
        States, no later than ninety (90) days after the effective date 
        of this section, is depicted on the map dated September 1, 
        1007, and labeled attachment A, and is described as follows:

                 Municipal Watershed & Greenbelt Buffer

                         [T43S, R651E, C.R.M.]

                                                            Approximate
                Portion of Section                                Acres
16.............................................................       2
21.............................................................     610
22.............................................................     227
23.............................................................      35
26.............................................................     447
27.............................................................     400
33.............................................................     202
34.............................................................      76
                                                                 ------

          Approximate total:...................................   1,999

          ``(2) The surface and subsurface estates to the land to be 
        conveyed to Huna Totem Corporation and Sealaska by the 
        Secretary of Agriculture shall be lands readily accessible to 
        Hoonah and, where possible, located on the road system to 
        Hoonah, and shall be conveyed within one hundred eighty (180) 
        days after the conveyance of lands in subsection (b)(1); and 
        are to be selected from the lands depicted on the map dated 
        September 1, 1997, and labeled Attachment B.
    ``(c) Timber Manufacturing; Export Restriction. Notwithstanding any 
other provision of law, timber harvested from land conveyed to Huna 
Totem Corporation under this Section is not available for export as 
unprocessed logs from Alaska, nor may Huna Totem Corporation sell, 
trade, exchange, substitute, or otherwise convey such timber to any 
person for the purpose of exporting that timber from the State of 
Alaska.
    ``(d) Relation to Other Requirements. To land conveyed to Huna 
Totem Corporation and Sealaska Corporation under this section is, for 
all purposes, considered land conveyed under the Alaska Native Claims 
Settlement Act.
    ``(e) Maps. The maps referred to in this section shall be 
maintained on file in the Office of the Chief, United States Forest 
Service, and in the office of the Secretary of the Interior, 
Washington, D.C. The acreage cited in this section is approximate, and 
if a discrepancy arises between cited acreage and the land depicted on 
the specified maps, the maps shall control. The maps do not constitute 
an attempt by the United States to convey State or private land.''

                         Purpose of the Measure

    The purpose of S. 1158, as ordered reported, is to direct 
the Secretary of Agriculture to enter into an equal value 
exchange of lands and interests therein, in the Tongass 
National Forest with Huna Totem Corporation and Sealaska 
Corporation.

                          Background and Need

    The city of Hoonah is located in Southeast Alaska on the 
northeast part of Chichagoff Island. Hoonah has been the home 
of the Huna people since the last advance of the great ice 
masses into Glacier Bay, forcing the Huna people to look for 
new homes. Since the Huna people had traditionally used the 
Hoonah area each summer as a subsistence harvesting area, it 
was natural for them to settle in the area now called Hoonah. 
The community has a population of approximately 918 residents 
and is located forty miles from Juneau, Alaska's capital city.
    Within the city of Hoonah is located the Huna Totem 
Corporation, an Alaska Native Corporation formed pursuant to 
the Alaska Native Claims Settlement Act (ANCSA) (P.L. 92-203). 
Huna Totem is the largest Tlingit Indian Village Corporation in 
Southeast Alaska. Under the terms of ANCSA each village 
corporation had to select lands within the core township or 
townships in which all or part of the Native village is 
located.
    In 1975, Huna Totem filed its ANCSA land selections within 
the two mile radius of the City of Hoonah as mandated by ANCSA. 
Since the community of Hoonah is located along the shoreline at 
the base of Hoonah Head Mountain, the surrounding lands are 
steep hillsides, cliffs, or are designated watershed for the 
municipal water sources. Most of the land, approximately 1,999 
acres, is not conducive to logging or development due to the 
topography and watershed limitations.
    To resolve this problem, S. 1158 would require the Huna 
Totem Corporation to convey ownership of approximately 1,999 
acres of land used for the municipal watershed to the United 
States Forest Service. In exchange, the Huna Totem Corporation 
will be allowed to select other lands readily accessible to 
Hoonah in order to fulfill their ANCSA entitlement. This 
legislation also requires the exchange of lands to be of equal 
value and provides for additional compensation if needed. 
Lastly, the legislation requires that any potential timber 
harvested from land acquired by Huna Totem Corporation not be 
available for export.

                          Legislative History

    S. 1158 was introduced on September 10, 1997, by Senator 
Murkowski. The full Committee held a hearing on S. 1158 on 
September 17, 1997. At the business meeting on September 24, 
1997, the Committee on Energy and Natural Resources ordered S. 
1158, as amended, favorably reported.

           Committee Recommendations and Tabulation of Votes

    The Committee on Energy and Natural Resources, in open 
business session on September 24, 1997, by a unanimous voice 
vote of a quorum present, recommends that the Senate pass S. 
1158, if amended as described herein.

                          Committee Amendments

    During the consideration of S. 1158, the Committee adopted 
an amendment in the nature of a substitute offered by Senator 
Murkowski. In addition to numerous clarifying, technical and 
conforming changes, the bill was reported with an amendment 
assuring the Sealaska subsurface estate will be transferred to 
the United States in conjunction with the Huna Totem surface 
estate. Additionally, the amendment clarified that the values 
of the lands and interests to be exchanged be equal.

                      Section-by-Section analysis

                         Section 1. short title

    This section states that the Short Title of the S. 1158 to 
be the ``Huna Totem Corporation Land Exchange Act''.

                  Sec. 2. amendment of settlement act

    Section 2(a) directs the Secretary of Agriculture, in 
accordance with the equal value provision of Section 22(f) of 
ANCSA to convey to Huna Totem Corporation the surface estate 
and to Sealaska Corporation the subsurface estate to certain 
lands as described in Section (b)(2) of the legislation. 
Section 2(b)(1) directs that within 90 days after enactment the 
surface and subsurface interests owned by Huna Totem and 
Sealaska Corporation are to be conveyed to the Secretary. This 
section also contains a legal description of those lands along 
with a reference to maps showing the municipal watershed. 
Section 2(b)(2) requires that within 180 days after the lands 
described in Section 2(b)(1) have been conveyed to the 
Secretary, the Secretary shall convey the surface estate to 
Huna Totem Corporation and the subsurface estate to Sealaska 
Corporation in lands selected by Huna Totem Corporation from 
the area depicted on the map described in this section. Section 
2(c) requires that any timber harvested from the lands conveyed 
to Huna Totem Corporation under this section not be available 
for the purpose of exporting that timber from the state of 
Alaska. This section also prohibits any party to which Huna 
Totem Corporation may sell, trade, exchange, substitute, or 
convey any of the timber from the lands it receives under this 
section from using the timber for the purpose of export. 
Section 2(d) requires the land conveyed to Huna Totem 
Corporation and Sealaska Corporation to be for all purposes, 
considered land conveyed under ANCSA. Section 2(e) directs the 
maps referred to in this section to be maintained on file in 
the Office of the Chief, Forest Service, and in the Office of 
the Secretary of the Interior, Washington, D.C. Should a 
discrepancy arise between cited acreage and lands on the maps 
this section dictates that the maps control.

                   Cost and Budgetary Considerations

    On September 24, 1997, the Committee on Energy and Natural 
Resources requested cost estimates to be prepared by the 
Congressional Budget Office for S. 1158. These reports had not 
been received at the time the report on S. 1158 was filed. When 
the reports become available, the Chairman will request that 
they be printed in the Congressional Record for the advice of 
the Senate.

                      Regulatory Impact Evaluation

    In compliance with paragraph 11(b) of rule XXVI of the 
Standing Rules of the Senate, the Committee makes the following 
evaluation of the regulatory impact which would be incurred in 
carrying out S. 1158. The bill is not a regulatory measure in 
the sense of imposing Government-established standards or 
significant economic responsibilities on private individuals 
and businesses.
    No personal information would be collected in administering 
the program. Therefore, there would be no impact on personal 
privacy.
    Little, if any, additional paperwork would result from the 
enactment of S. 1158, as ordered reported.

                        Executive Communications

    On, September 25, 1997, the Committee on Energy and Natural 
Resources requested legislative reports from the Department of 
Agriculture and the Office of Management and Budget setting 
forth Executive agency recommendations on S. 1158. These 
reports had not been received at the time the report on S. 1158 
was filed. When the reports become available, the Chairman will 
request that they be printed in the Congressional Record for 
the advice of the Senate. The testimony provided by the Forest 
Service at the Committee hearing follows:

    Statement of Eleanor Towns, Director of Lands, Forest Service, 
                       Department of Agriculture

    Mr. Chairman and members of the subcommittee, thank you for 
the opportunity to discuss these bills with you. I am Eleanor 
Towns, the national director of the lands program for the 
Forest Service. I am accompanied today by James B. Snow, Deputy 
Assistant General Counsel, U.S. Department of Agriculture.
    S. 1158 would amend the Alaska Native Claims Settlement Act 
(ANCSA) to require the Secretary of Agriculture to convey 
Federal land in the Tongass National Forest to the Kake Tribal 
Corporation, Huna Totem Corporation, and Sealaska Corporation 
within 90 days of enactment, in exchange for surface interests 
in certain land within the townships to Kake and Hoonah. The 
Administration strongly opposes enactment of both bills.
    Both bills set unacceptable precedents by reopening native 
entitlements under the Alaska Native Claims Settlement Act 
(ANCSA) and by enabling village corporations to exchange lands 
they selected under ANCSA for more valuable Federal land. Both 
bills direct land exchanges that are not in the public 
interest.

ANCSA effected an equitable settlement

    The Alaska Native Claims Settlement Act (ANCSA) granted 
over 200 village corporations rights to select public lands for 
a variety of uses. Each corporation was required to select the 
public lands within the township in which the village is 
located. Any remaining lands needed to complete a village 
corporation's entitlement were to be selected from adjacent 
townships withdrawn for selection. Section 16 of ANCSA entitled 
each of ten village corporations in Southeast Alaska, including 
those from Kake Tribal and Huna Totem Corporation, to select 
23,040 acres of public land in contiguous and reasonably 
compact tracts.
    ANCSA provided each village corporation with management 
control over land in the core township immediately around the 
village. ANCSA did not require or contemplate that all land 
conveyed to village corporations be suitable for development. 
Nor did it require or contemplate a Federal responsibility to 
maximizefinancial returns to the village and regional 
corporations from the lands they selected.
    If S. 1158 were enacted, any of the over 200 village 
corporations could argue that they too were entitled to 
exchange land they were required by law to select under ANCSA 
for more valuable Federal land. Setting this precedent would 
severely disrupt Federal land management throughout Alaska with 
significant costs and consequences for all of the American 
taxpayers. ANCSA was a final settlement and, as such, 
represented many trade-offs and compromises. Bills such as 
those before us threaten to unravel the settlement through 
piece-meal amendments.
    In addition, the lands that Kake has identified for 
conveyance to them were not identified and withdrawn under 
ANCSA for selection by the corporation, and we are concerned 
that future claims by other village corporations would 
potentially seek to use a similar procedure to acquire lands 
not prescribed by ANCSA. In the long run, these types of 
exchanges could transfer vast wealth from the public to private 
corporations without equal value consideration to the United 
States.

Land exchanges not in the public interest

    Mr. Chairman, we do not believe that the land exchanges 
directed in S. 1158 are in the public interest. The primary 
reason the Forest Service pursues land exchanges is to provide 
more efficient management of a forest through consolidation of 
existing federal ownership and to dispose of isolated parcels 
that are uneconomical to manage or where further consolidation 
is not anticipated. These bills are in direct conflict with 
these goals.
    A premise in all public land law is that exchanges should 
be based on equal value not acre-for-acre as is proposed by 
these bills. It is common sense that the American public should 
get back something of equal value to what it gives up. In S. 
1159 and S. 1158, Kake Tribal Corporation and Huna Totem 
Corporation would receive prime timber lands from the Federal 
government but, in return, some of the land that the Federal 
government would be receiving lands has already been cutover.
    Another problem with the exchanges directed by these bills 
concerns the subsurface estate. Under ANCSA, Sealaska 
Corporation received the subsurface estate underlying village 
corporation selections in southeast Alaska. Under the bills, 
Sealaska would not exchange its rights underlying the areas 
conveyed to the United States but would acquire all the 
additional subsurface underlying the lands conveyed to Kake 
Tribal Corporation and Huna Totem Corporation. This would 
create a split estate in the areas that would be conveyed to 
the Federal government with the Federal government owning the 
surface and Sealaska Corporation owning the subsurface. Because 
of the many management problems engendered by split estates, 
USDA policy in exchanges it to require the exchange of both the 
surface and subsurface. The bills would result in a 4,426-acre 
windfall of additional subsurface estate in the Tongass 
National Forest for Sealaska Corporation and would not be in 
the public interest.
    Section 22(f) of ANCSA authorizes equal value exchanges in 
Alaska between the Federal government and native corporations. 
In 1976, that authority was amended to allow for departures 
from equal value when the appropriate Secretary determined it 
to be ``in the public interest'' primarily in response to the 
difficulty of appraising land in Alaska where comparable sale 
data was sparse. However, the Forest Service's consistent 
administrative application of section 22(f) is to require equal 
value exchanges, with ambiguities in valuation permitted only 
where a demonstrable federal interest would be advanced by an 
exchange. No federal interest would be advanced by S. 1158.

S. 1158, Huna Totem Corporation

    S. 1158 requires that the Secretary of Agriculture convey 
Federal lands in the Tongass National Forest to Huna Totem 
Corporation and Sealaska Corporation within 90 days of 
enactment in exchange for surface interests in lands in the 
township of Hoonah.
    Under S. 1158, the Huna Totem Corporation would reconvey 
the surface interest in approximately 1,999 acres of land in 
Hoonah Township to the United States, but the subsurface estate 
in these lands would be retained by Sealaska Corporation.
    S. 1158 identifies several parcels of lands to be conveyed 
to the United States from the Huna Totem Corporation. We do not 
have a full description of the lands that might be conveyed in 
exchange to the Government. However, we understand that one of 
the parcels is within the Hoonah watershed, but is not the 
source of Hoonah's municipal water supply. We also understand 
that some of the lands proposed for conveyance to the 
Government contain encumbrances that may present a variety of 
problems such as trespass residences or 14(c)(1) claimants and 
would require additional administration efforts, like issuing, 
managing, and collecting fees for special use permits. If the 
latter, this could substantially alter the number of acres 
conveyed to the United States.
    We also are concerned about the effects that enactment of 
S. 1158 could have on the resource uses planned in the revision 
of the Tongass Land Management Plan. The bill could adversely 
affect lands set aside as wildlife habitat conservation areas. 
These same lands contain high value timber and would likely be 
desirable acquisitions for Huna Totem Corporation.
    S. 1158 has the same technical and administrative problems 
as S. 1159. The timeframes to identify, value, and survey the 
lands involved are too short. The costs involved with survey 
are significant. The applicability of section 14(c)(3) of ANCSA 
to some portion of the lands in S. 1158 may be an issue. Huna 
Totem Corporation has not filed its 14(c) reconveyance plan 
with the Bureau of Land Management.

Closing

    In summary, Mr. Chairman, the Administration strongly 
objects to S. 1158. We do not believe enactment of this bill 
would be in the public interest.
    This bill sets unacceptable precedents by reopening native 
entitlements under the Alaska Native Claims Settlement Act 
(ANCSA) and by enabling village corporations to exchange lands 
they selected under ANCSA for more valuable Federal land. Both 
bills direct land exchanges that are not in the public 
interest. This bill could seriously disrupt Federal land 
management on the Tongass National Forest and result in 
potential windfalls for private corporations at the American 
taxpayers' expense.
    That concludes my statement, Mr. Chairman.

                  ADDITIONAL VIEWS OF SENATOR BUMPERS

    During consideration of S. 1158, the Committee adopted an 
amendment in the nature of a substitute that requires that the 
values of the lands and interests to be exchanged under this 
bill be equal. As a result, I voted to report the bill from the 
Committee. However, I have two additional concerns that are not 
adequately addressed in the Committee reported bill.
    First, the Forest Service is concerned that the bill is a 
bad precedent. I agree. S. 1158 requires the Forest Service to 
enter into a land exchange agreement with Huna Totem 
Corporation, a village corporation, in order to return to 
Federal ownership lands within the township immediately 
surrounding the village that are important for municipal 
watershed purposes. In return, the village corporation will 
receive other lands on the Tongass National Forest that it can 
harvest. The Alaska Native Claims Settlement Act (ANCSA), 
Public Law 92-203, granted more than 200 village corporations 
rights to select public lands for a variety of uses. Each 
corporation was required to select, as part of its entitlement, 
all public land within the township in which the village is 
located. While ANCSA intended a village corporation to control 
lands within the immediately surrounding township, it did not 
require or anticipate that all lands conveyed to village 
corporations be suitable for development. The Forest Service 
believes that enactment of these bills will likely result in 
additional village corporations requesting to return lands 
around their village that they were required by law to select 
pursuant to ANCSA in order to secure land currently in Federal 
ownership that is more economically viable. Ultimately, S. 1158 
has the potential to undo settled Alaska Native claims as more 
and more villages seek to turn lands back to the Federal 
Government in exchange for more desirable lands elsewhere in 
the state.
    Second, the Forest Service opposes S. 1158 because it does 
not believe that enactment of the bill will result in a 
mutually beneficial exchange. I agree. Land exchanges are 
generally pursued where both parties derive benefits. The 
Forest Service asserts that no compelling reason exists for the 
Forest Service to re-acquire lands in order to manage them for 
local watershed purposes. In fact, the recent revision of the 
Tongass Land Use Management Plan expressly discourages the 
acquisition of lands containing municipal watersheds due to 
management difficulties (lack of staff and equipment as well as 
the need to prepare special use permits for existing 
developments on the lands such as dams, pipelines, and water 
tanks). While the fact that the exchange contemplated under 
this bill must be equal value rather than acre for acre is a 
very positive step, the bill still has serious flaws that 
should be addressed.

                                                      Dale Bumpers.

                        Changes in Existing Law

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
the bill S. 1158, as ordered reported, are shown as follows 
(existing law proposed to be omitted is enclosed in black 
brackets, new matter is printed in italic, existing law in 
which no change is proposed is shown in roman):
    ALASKA NATIVE CLAIMS SETTLEMENT ACT OF 1971 (43 U.S.C. 
1601, et seq.), as amended.

``SECTION   . HUNA TOTEM CORPORATION LAND EXCHANGE.

    ``(a) General. The Secretary of Agriculture referred to as 
(``Secretary'') in this section in accordance with the equal 
value provisions of section 22(f) shall, subject to valid 
existing rights and easements, convey to the Huna Totem 
Corporation the surface estate to the Federal lands described 
in subsection (b)(2) of this section and convey to Sealaska 
Corporation title to the subsurface estate in such lands.
    ``(b) Description and Deadlines. The land to be exchanged 
is located in the Copper River Meridian and is further 
described as follows:
          (1) the surface and subsurface estates to the land to 
        be conveyed by Huna Totem Corporation and Sealaska to 
        the United States, no later than ninety (90) days after 
        the effective date of this section, is depicted on the 
        map dated September 1, 1997, and labeled attachment A, 
        and is described as follows:



Municipal Watershed & Greenbelt Buffer

                          [T43S, R61E, C.R.M.]

                                                       Approximate Acres
                                                      Portion of Section
16................................................................     2
21................................................................   610
22................................................................   227
23................................................................    35
26................................................................   447
27................................................................   400
33................................................................   202
34................................................................    76
                        -----------------------------------------------------------------
                        ________________________________________________
      Approximate Total........................................... 1,999

          (2) The surface and subsurface estates to the land to 
        be conveyed to Huna Totem Corporation and Sealaska by 
        the Secretary of Agriculture shall be lands readily 
        accessible to Hoonah and, where possible, located on 
        the road system to Hoonah, and shall be conveyed within 
        one hundred eighty (180) days after the conveyance of 
        lands in subsection (b)(1); and are to be selected from 
        the lands depicted on the map dated September 1, 1997, 
        and labeled Attachment B.
    ``(c) Timber Manufacturing; Export Restriction. 
Notwithstanding any other provision of law, timber harvested 
from land conveyed to Huna Totem Corporation under this Section 
is not available for export as unprocessed logs from Alaska, 
nor may Huna Totem Corporation sell, trade, exchange, 
substitute, or otherwise convey such timber to any person for 
the purpose of exporting that timber from the State of Alaska.
    ``(d) Relation to Other Requirements. The land conveyed to 
Huna Totem Corporation and Sealaska Corporation under this 
section is, for all purposes, considered land conveyed under 
the Alaska Native Claims Settlement Act.
    ``(e) Maps. The maps referred to in this section shall be 
maintained on file in the Office of the Chief, United States 
Forest Service, and in the Office of the Secretary of the 
Interior, Washington, D.C. The acreage cited in this section is 
approximate, and if a discrepancy arises between cited acreage 
and the land depicted on the specified maps, the maps shall 
control. The maps do not constitute an attempt by the United 
States to convey State or private land.''

                                
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