[House Report 106-451]
[From the U.S. Government Publishing Office]
106th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 106-451
======================================================================
CHUGACH ALASKA NATIVES SETTLEMENT IMPLEMENTATION ACT OF 1999
_______
November 5, 1999.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Young of Alaska, from the Committee on Resources, submitted the
following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 2547]
[Including cost estimate of the Congressional Budget Office]
The Committee on Resources, to whom was referred the bill
(H.R. 2547) to provide for the conveyance of land interests to
Chugach Alaska Corporation to fulfill the intent, purpose, and
promise of the Alaska Native Claims Settlement Act, 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 ``Chugach Alaska Natives Settlement
Implementation Act of 1999''.
SEC. 2. DEFINITIONS.
For the purposes of this Act, the following definitions apply:
(1) The term ``ANCSA'' means the Alaska Native Claims
Settlement Act, as amended (43 U.S.C. 1601 et seq.).
(2) The term ``ANILCA'' means the Alaska National Interest
Lands Conservation Act of 1980, as amended (16 U.S.C. 3101 et
seq.).
TITLE I--EASEMENT FOR ACCESS
SEC. 101. FINDINGS.
The Congress finds that--
(1) Chugach Alaska Corporation, formerly known as Chugach
Natives, Inc., is the Alaska Native Regional Corporation
organized under the authority of ANCSA for the Chugach people
in the Chugach region;
(2) ANCSA promised the Chugach people a fair and just
settlement of their aboriginal claims to lands and waters in
Alaska;
(3) pursuant to section 1430 of ANILCA, the Secretary of the
Interior, the Secretary of Agriculture, the State of Alaska,
and Chugach Alaska Corporation were directed to study land
ownership in and around the Chugach region for the purposes
of--
(A) providing a fair and just land settlement for the
Chugach people and realizing the intent, purpose, and
promise of ANCSA by Chugach Alaska Corporation; and
(B) identifying lands that, to the maximum extent
possible, are of the like, kind, and character of those
traditionally used and occupied by the Chugach people,
and, to the maximum extent possible, are coastal
accessible and economically viable;
(4) on September 17, 1982, the aforementioned parties entered
into the 1982 Chugach Natives, Inc. Settlement Agreement in
order to set forth a fair and just land settlement for the
Chugach people pursuant to the study directed by Congress,
which among its many provisions--
(A) required the United States to convey to Chugach
Alaska Corporation not more than 73,308 acres of land
in the vicinity of Carbon Mountain, which tract of land
contains significant natural resources, but is
inaccessible by road;
(B) granted Chugach Alaska Corporation rights-of-way
across Chugach National Forest to such tract of land,
and required the United States to grant to Chugach
Alaska Corporation an easement for the purpose of
constructing, using, and maintaining roads and other
facilities necessary for the use and development of
that tract of land;
(C) required Chugach Alaska Corporation to apply to
the Forest Supervisor for Chugach National Forest for
conveyance of the easement, and to provide such
information as may be prescribed by the Forest
Supervisor; and
(D) reserved in the United States the right to
prepare environmental documents in connection with the
easement grant, consistent with the provisions of
section 910 of ANILCA, if deemed desirable by the
responsible Federal agency;
(5) on September 11, 1996, the Forest Supervisor deemed
preparation of environmental documents for the easement
desirable;
(6) on August 8, 1997, and January 21, 1998, Chugach Alaska
Corporation and the United States Forest Service entered into
collection agreements, pursuant to which Chugach Alaska
Corporation was required to pay to the United States Forest
Service the costs of United States Forest Service personnel
involvement in the preparation and review of environmental
documents and processing of the easement application;
(7) on March 13, 1998, Chugach Alaska Corporation and the
United States Forest Service entered into a Memorandum of
Understanding, pursuant to which the parties reached agreement
on--
(A) the information prescribed by the Forest
Supervisor, in a detailed work plan prepared jointly by
United States Forest Service and Chugach Alaska
Corporation representatives;
(B) the process for the preparation and approval of
environmental documentation in support of the easement;
and
(C) the requirement that the United States Forest
Service grant an easement to Chugach Alaska Corporation
within 45 days after receiving a complete easement
application from Chugach Alaska Corporation;
(8) In furtherance of providing the environmental
documentation prescribed by the Forest Supervisor, Chugach
Alaska Corporation, at its sole expense--
(A) contracted for the performance of field surveys
and the preparation of resource reports on the cultural
resources, wetlands, threatened, endangered, and
sensitive plant and animal species, vegetation, and
fish and wildlife in the easement project area, as
depicted on the map entitled ``Project Area and
Corridor Carbon Mountain Access Project 1-14-98''.
(B) submitted the resource reports to the United
States Forest Service for review and comment, and
contracted for further field surveys and reports as and
when requested by the United States Forest Service;
(C) in conjunction with United States Forest Service
biologists, contracted for the performance of field
surveys and the preparation of reports for waterfowl,
goshawk, and goat kidding areas in the easement project
area;
(D) contracted for the preparation of bridge designs
and hydrological analyses for major crossings within
the easement project area, submitted such designs and
analyses to the United States Forest Service for review
and comment, and modified such designs pursuant to
comments received from United States Forest Service
specialists;
(E) prepared a transportation plan for the easement
and road, including maintenance and design standards
and an erosion control plan, for review by United
States Forest Service engineers and specialists; and
(F) contracted for the preparation of a draft road
design for field and office review by United States
Forest Service engineers and specialists, and for the
modification of such design pursuant to comments
received by the United States Forest Service;
(9) In June 1998, an interdisciplinary team of specialists in
the fields of fisheries, hydrology, engineering, soils,
wildlife, recreation, and visual quality from the United States
Forest Service and Chugach Alaska Corporation and its
contractors conducted an extensive field review of the easement
corridor and road location, the costs of which were borne by
Chugach Alaska Corporation, and United States Forest Service
specialists concurred with Chugach Alaska Corporation on the
location of the easement corridor;
(10) Following the interdisciplinary team review and
concurrence, United States Forest Service staff officers,
including the Forest Supervisor for the Chugach National
Forest, conducted a field review of the road location and
affirmed such concurrence;
(11) on January 12, 1999, the Forest Supervisor determined
that Chugach Alaska Corporation had completed all studies and
provided adequate documentation to support its easement
application;
(12) on January 19, 1999, Chugach Alaska Corporation
submitted the complete easement application, containing all
information prescribed by the Forest Supervisor, in a
multivolume collection of the extensive field work, reviews,
reports, analyses, and modifications performed and relied upon
in support of the easement, and entitled ``Documentation in
Support of an Easement Application for Road Access Via the
Martin River Valley to the Bering River Coal Fields as Granted
by the 1982 CNI Settlement Agreement'';
(13) to date, the United States Forest Service has failed to
grant Chugach Alaska Corporation an easement for access to its
lands in the vicinity of Carbon Mountain;
(14) without such easement, the lands conveyed to Chugach
Alaska Corporation in the vicinity of Carbon Mountain cannot be
utilized or developed in a manner consistent with the intent of
congress as expressed in the ANILCA and ANCSA;
(15) Chugach Alaska Corporation has incurred considerable
expense and delay in its efforts to achieve the fair and just
settlement Congress intended and promised to the Chugach people
more than 2 decades ago pursuant to ANCSA;
(16) the easement requirement under the 1982 Chugach Natives,
Inc. Settlement Agreement should be granted without further
delay.
SEC. 102. PURPOSE.
The purpose of this title is to provide Chugach Alaska Corporation
with access to and for the utilization and development of land
interests in the vicinity of Carbon Mountain that were conveyed to
Chugach Alaska Corporation pursuant to ANCSA.
SEC. 103. CONVEYANCE.
Notwithstanding any other provision of law, as soon as practicable
but not later than 14 days after the date of the enactment of this
title, the Secretary of Agriculture shall grant Chugach Alaska
Corporation a perpetual easement located and having the specifications
as set forth in the ``Documentation in Support of an Easement
Application for Road Access Via the Martin River Valley to the Bering
River Coal Fields as Granted by the 1982 CNI Settlement Agreement'',
for the purposes and facilities described therein.
SEC. 104. EASEMENT.
Unless otherwise agreed to by the Secretary of Agriculture and
Chugach Alaska Corporation, the easement granted under section 103 of
this title shall--
(1) include sufficient lands for logistical staging areas and
construction material sites used for the construction and
maintenance of a single-lane forest road; and
(2) include the right for Chugach Alaska Corporation, or its
assignees, to construct, operate, and maintain related
facilities and structures within the right-of-way.
SEC. 105. TRANSFER.
If within 1 month from the date of the enactment of this title the
Secretary of Agriculture and Chugach Alaska Corporation fail mutually
to agree on the terms and conditions of the use of the easement, then
the easement is hereby granted to Chugach Alaska Corporation, and such
grant shall be deemed as a conveyance pursuant to ANCSA.
TITLE II--CEMETERY SITES AND HISTORIC PLACES
SEC. 201. DEFINITIONS.
For the purposes of this title, the following definitions apply:
(1) The term ``Federal Government'' means any Federal agency
of the United States.
(2) The term ``Secretary'' means the Secretary of the
Interior.
SEC. 202. FINDINGS.
The Congress finds the following:
(1) Pursuant to section 14(h)(1) of ANCSA, the Secretary has
the authority to withdraw and convey to the appropriate
regional corporation fee title to existing cemetery sites and
historical places.
(2) Pursuant to section 14(h)(7) of ANCSA, lands located
within a National Forest may be conveyed for the purposes set
forth in section 14(h)(1) of ANCSA.
(3) Chugach Alaska Corporation, the Alaska Native Regional
Corporation for the Chugach Region, applied to the Secretary
for the conveyance of cemetery sites and historical places
pursuant to section 14(h)(1) of ANCSA in accordance with the
regulations promulgated by the Secretary.
(4) Pursuant to such regulations, Village Corporation
selections were given priority over Regional Corporation
selections for the same lands.
(5) Chugach Alaska Corporation's section 14(h)(1)
applications for lands that were selected by and conveyed to
Village Corporations in the Chugach Region were either
withdrawn by Chugach Alaska Corporation or denied by the
Secretary.
(6) As part of the Exxon Valdez Oil Spill Restoration
Program, the Federal Government has acquired and is in the
process of acquiring lands from Village Corporations in the
Chugach Region that Chugach Alaska Corporation applied for
pursuant to section 14(h)(1) of ANCSA and lands from other
private parties in the Chugach Region that contain cemetery
sites and historical places.
(7) The fulfillment of the intent, purpose, and promise of
ANCSA requires that lands Chugach Alaska Corporation selected
or would have selected under section 14(h)(1) of ANCSA and that
were subsequently acquired by the Federal Government should be
made available for conveyance to Chugach Alaska Corporation as
cemetery sites and historical places pursuant to section
14(h)(1) of ANCSA, subject only to a determination that such
lands meet the eligibility criteria for historical places or
cemetery sites, as appropriate, set forth in the Secretary's
regulations.
SEC. 203. WITHDRAWAL OF LANDS.
Notwithstanding any other provision of law, the Secretary shall
withdraw from all forms of appropriation--
(1) all public lands for which Chugach Alaska Corporation
filed an application for conveyance pursuant to section
14(h)(1) of ANCSA as a cemetery site or an historical place,
and such application was denied because the land was selected
by and conveyed to a Village Corporation; and
(2) all lands that the Federal Government acquired or
hereafter acquires from Village Corporations or other private
parties in the Chugach Region in connection with the Exxon
Valdez Oil Spill Restoration Program.
SEC. 204. APPLICATION FOR CONVEYANCE OF WITHDRAWN LANDS.
Chugach Alaska Corporation shall apply to the Secretary for the
conveyance of lands as cemetery sites or historical places under
section 14(h)(1) of ANCSA as follows:
(1) With respect to lands withdrawn pursuant to subsection
203(1) of this title, by filing with the Secretary a request
for reinstatement of its original application, together with
any amendments authorized under section 205 of this title.
(2) With respect to lands withdrawn pursuant to subsection
203(2) of this title, for which Chugach Alaska Corporation has
not filed an application under section 14(h)(1) of ANCSA with
the Secretary, by filing with the Secretary an application in
accordance with the regulations promulgated by the Secretary as
of the date of enactment of this title.
The Secretary shall accept all such requests filed within the periods
set forth in section 207 of this title.
SEC. 205. AMENDMENTS.
Chugach Alaska Corporation may amend original applications filed with
the Secretary for the conveyance of lands pursuant to section 14(h)(1)
of ANCSA--
(1) to include lands withdrawn pursuant to section 203 of
this title which are adjacent to lands Chugach Alaska
Corporation selected in its original application and that
Chugach Alaska Corporation deems culturally important and
potentially eligible as a cemetery site or historical place;
and
(2) to cure technical defects.
SEC. 206. PROCEDURE FOR EVALUATING AND CONVEYING SELECTED LANDS.
The lands selected by Chugach Alaska Corporation pursuant to sections
204 and 205 of this title shall be evaluated for their eligibility as
cemetery sites and historical places, as appropriate, and conveyed to
Chugach Alaska Corporation, in accordance with the criteria and
procedures set forth in the regulations promulgated by the Secretary as
of the date of the enactment of this title. To the extent that such
criteria and procedures conflict with any provision of this title, the
provisions of this title shall control.
SEC. 207. REINSTATEMENT PERIOD.
Notwithstanding any other provision of law, Chugach Alaska
Corporation shall have--
(1) 1 year from the date of enactment of this title to file a
request for reinstatement under subsection 204(1) of this
title, together with any amendments authorized under section
205 of this title; and
(2) 4 years from the date of recording the conveyance
document for any Federal acquisition of lands to file an
application under subsection 204(2) of this title.
SEC. 208. APPLICABILITY.
This title shall apply to all Federal acquisitions of the lands
described in section 203 of this title, whether occurring prior to or
after the date of enactment of this title.
TITLE III--FOREST SYSTEM LAND MANAGEMENT
SEC. 301. DEFINITION.
For the purposes of this title, the term ``Alaska Native
Corporation'' means a ``Native Corporation'' as that term is defined in
section 3(m) of ANCSA, as amended (43 U.S.C. 1601 et seq.).
SEC. 302. FINDINGS.
The Congress finds that--
(1) pursuant to ANCSA and ANILCA, Alaska Native Corporations
own hundreds of thousands of acres of land intermingled with,
adjacent to, or dependent for access upon National Forest
System lands in Alaska;
(2) the United States Forest Service, in a letter dated June
30, 1998, to Chugach Alaska Corporation, the Alaska Native
Regional Corporation for the Chugach Region established under
ANCSA, disclaimed any legal obligation to coordinate the
revision of the Chugach National Forest land and resource
management plan with the plans of Alaska Native Corporations
for the utilization of their lands and resources;
(3) the uncoordinated development, maintenance, or revision
of land and resource management plans for units of the National
Forest System in Alaska adversely affects the use, development,
and value of the lands and resources conveyed to Alaska Native
Corporations under ANCSA and ANILCA; and
(4) the proper management of National Forest System lands in
Alaska and the fulfillment of the intent, purpose, and promise
of ANCSA require coordination in the development, maintenance,
and revision of land and resource management plans for units of
the National Forest System in Alaska with the plans of Alaska
Native Corporations for the utilization of their lands which
are intermingled with, adjacent to, or dependent upon for
access National Forest System lands.
SEC. 303. COORDINATION REQUIRED.
Notwithstanding any other provision of law, the Secretary of
Agriculture shall coordinate the development, maintenance, and revision
of land and resource management plans for units of the National Forest
System in Alaska with the plans of Alaska Native Corporations for the
utilization of their lands which are intermingled with, adjacent to, or
dependent for access upon National Forest System lands. At a minimum,
such coordination shall involve--
(1) notifying Alaska Native Corporations in advance of the
development, maintenance, or revision of a land and resource
management plan for a unit of the National Forest System in
Alaska;
(2) meeting with Alaska Native Corporations at the beginning
of the plan preparation, maintenance, or revision process to
develop procedures for coordination;
(3) reviewing the plans of Alaska Native Corporations for the
utilization of their lands and resources;
(4) assessing the impacts of Alaska Native Corporation land
use plans on National Forest land and resource management
planning, and determining how to address those impacts; and
(5) identifying conflicts between National Forest land and
resource management plans and the land use plans of Alaska
Native Corporations, and considering alternatives for resolving
those conflicts.
SEC. 304. APPLICABILITY.
This title shall apply to all land and resource management plans for
units of the National Forest System in Alaska--
(1) in the process of being developed or revised on the date
of enactment of this title; and
(2) developed, maintained, or revised after the date of
enactment of this title.
purpose of the bill
The purpose of H.R. 2547 is to provide for the conveyance
of land interests to Chugach Alaska Corporation to fulfill the
intent, purpose, and promise of the Alaska Native Claims
Settlement Act.
background and need for legislation
The Alaska Native Claims Settlement Act of 1971 (ANCSA)
settled the aboriginal land claims of Alaska Natives by
providing for the prompt conveyance of 44 million acres of land
from the public domain to for-profit business corporations
owned by Alaska Natives. These Native Corporations are the
settlement vehicles that own and manage the land on behalf of
their Alaska Native shareholders.
ANCSA declared that Alaska Natives' land claims would be
``accomplished rapidly, with certainty, in conformity with the
real economic and social needs of Natives, without litigation,
with maximum participation by Natives in decisions affecting
their rights and property.''
However, where the Chugach Alaska Corporation (Chugach) is
concerned, implementation of ANCSA has been anything but rapid,
certain, without litigation or with the maximum participation
of the Natives in decisions affecting them. Chugach Alaska
Corporation represents Natives from a southcentral region of
Alaska.
H.R. 2547 resolves three problems in the implementation of
ANCSA for the Chugach Natives. These problems pertain to access
rights of Chugach (Title I); ownership of certain Native
historical and cemetery sites (Title II); and Native
corporation participation in National Forest System land
planning and management (Title III).
Title I--Access easement
Title I grants an easement to Chugach for access to a
remote tract of its ANCSA settlement land. In a 1982 settlement
agreement, the Administration promised Chugach an easement
across part of the Chugach National Forest to provide economic
access to the inholding, but has not fully delivered on its
obligation. Property without access is virtually meaningless to
the Chugach Natives and is contrary to common law, federal
statutes, and the intent of ANCSA.
Following the enactment of ANCSA in 1971, the federal
government was extraordinarily slow to convey Chugach its
settlement lands. To expedite the land conveyances, Congress
inserted certain provisions in the Alaska National Interest
Lands Conservation Act of 1980 (ANILCA) including a broad
waiver under the National Environmental Policy Act for any
actions relating to the implementation of ANCSA. Section 1430
of ANILCA called for a study of land ownership patterns in the
Chugach region to identify lands and interests to fulfill the
intent of ANCSA for the Chugach Alaska Corporation.
Chugach still did not obtain its land entitlement, and
subsequently entered into litigation with the government. In
1982, Chugach and the federal government settled the litigation
in the 1982 Chugach Natives, Inc. Settlement Agreement
(Agreement). Under the Agreement, the United States awarded
Chugach a 73,000-acre tract of land known as the Bering River
Coal Fields or the Carbon Mountain Tract.
The Agreement also gave Chugach the right to apply for and
receive an easement for access across the Chugach National
Forest to the land-locked property, which is inaccessible by
road. The Agreement further acknowledges that such an access
easement is an ``integral'' condition precedent to the Natives'
willingness to settle the litigation. This clearly illustrates
how Natives' access to their settlement lands is central to
realizing the purposes, promises, and intent of ANCSA.
While the Carbon Mountain Tract was conveyed in 1983,
Chugach's access rights were not granted. Delays in granting
such rights persist to this day. A formal process to issue the
easement providing access began in 1996. However, the
Administration has committed to no time-certain day when the
easement will be granted. Rather, the Administration insists
that it be permitted, without a deadline, to continue
negotiations over abstract contractual rights that bear little
or no relevance to one of the primary purposes of the 1982
Agreement, which is to provide the Chugach Natives with use of
the Carbon Mountain land via economic surface access to it.
These delays pile on to the historic setbacks endured by
Chugach Natives in utilizing their settlement lands since ANCSA
was passed. For example, Chugach had not received a single acre
of settlement land for over ten years after ANCSA was
implemented. Chugach Natives were also hit hard by the 1989
Exxon Valdez oil spill that occurred in their region, causing
an economic upheaval and diversion away from developing Carbon
Mountain. Additionally, Chugach by its own reckoning has spent
over $1 million on environmental planning that was required by
the U.S. Forest Service as a condition of receiving the Carbon
Mountain access easement.
While a number of local Forest Service staff in Anchorage
worked diligently on Chugach's easement, the Administration has
missed every self-imposed deadline to issue an easement.
To end the delays, H.R. 3087, a predecessor bill to H.R.
2547, was introduced in 1997 to grant the easement outright.
H.R. 3087 was reported by the Committee on Resources and an
amended version attached to the fiscal year 1999 Interior
Appropriations bill. The measure was eventually set aside after
Administration assurances the easement would be granted before
the end of 1998. Again, a final easement has not been granted.
H.R. 2547 was introduced in the 106th Congress to grant the
easement. During the Committee hearing on H.R. 2547,
Agriculture Department witnesses asserted that negotiations
over terms of the easement were nearing completion, precluding
the need for the bill. However, these negotiations have caused
continuing delays with no date-certain conclusion.
The prolonged delays fit a pattern. During the 105th
Congress, the primary objection to legislation was that it was
premature: environmental documents then under preparation by
Chugach and the Forest Service were incomplete. Now that such
documents prepared at a reported cost to Chugach of over $1
million are complete and approved, ``new'' issues arise, with
little assurance that ``new'' unforeseen issues will not
surface. It is clear that legislation is necessary to grant the
easement.
As reported, Title I of H.R. 2547 requires the Secretary of
Agriculture to grant an easement within 14 days after
enactment, during which time negotiations over terms and
conditions should conclude. The easement will enable the
construction of a single-lane forest road about 30 miles in
length. However, if the Secretary does not comply, then one
month after enactment, the easement is legislatively granted.
H.R. 2547 specifies the location, standards, and terms of the
easement through reference to a comprehensive set of
environmental documents prepared under a Memorandum of
Understanding with the Forest Service. The Administration has
testified the documents are complete, adequate and accepted.
For this reason, the time is ripe to grant the easement
legislatively.
Title II--Native historical and cemetery sites
Section 14(h)(1) of ANCSA authorized the Secretary of
Interior to ``withdraw and convey to the appropriate Regional
Corporation fee title to existing cemetery sites and historical
places'' located on unreserved public lands, national forests,
and national wildlife refuges. However, Chugach reports that it
has been able to acquire only a small fraction of these places.
In the meantime, the Exxon VALDEZ Oil Spill Trustee Council
(EVOS) has purchased property containing historic and cemetery
sites that Chugach desires to acquire pursuant to Section
14(h)(1) of ANCSA. Title II addresses this problem and
reinstates Chugach's ability to select these small sites.
EVOS administers the civil and criminal settlement funds
paid by Exxon Corporation in restitution for its 1989 oil spill
in Prince William Sound, Alaska, an area abutting Chugach
Alaska Corporation lands. The Council has acquired lands
containing certain sites from Native village corporations and
other private parties in the Chugach region. Chugach has
reported that it was not consulted on many of the purchases
although implementing regulations of Section 106 of the
National Historic Preservation Act appears to require Chugach's
concurrence in EVOS' undertakings.
The intent of Section 14(h)(1) of ANCSA was to convey
historical sites and cemeteries to interested regional
corporations when such places are in federal ownership and are
not otherwise owned by Natives (including village corporations)
or other parties whose ownership pre-exists ANCSA. Title II
affords the Chugach regional corporation an opportunity to
acquire Native historical, cultural, religious and cemetery
sites bought by EVOS and sets forth the necessary withdrawal
authority, procedures, and deadlines for allowing Chugach to
acquire ANCSA Section 14(h)(1) sites it desires to own.
Title III--Forest planning
Alaska Native corporations own considerable interests in
land within Alaska's national forests. Chugach in particular
owns interests in 700,000 acres of land within the Chugach
National Forest, and has access rights to its properties. The
intermingled land ownership pattern presents significant
challenges in the proper management of public and private
lands. Title III requires that development or revision of
national forest land plans be coordinated with Native
corporations whose lands are intermingled with or adjoining
national forests. Such coordination aids in avoiding land use
conflicts and protects private property rights.
Following the Committee's decision to report H.R. 2547
favorably, President Clinton ordered the U.S. Forest Service to
promulgate new rules that prohibit new road construction on at
least 40 million acres of the national forest system, including
the Chugach National Forest. ANILCA bars the application in
Alaska of any study that supports the promulgation of these
rules. Nonetheless, Title III is needed to protect the ANCSA
interests of Natives who own land in or adjacent to national
forests in Alaska until the President retracts the scope of the
proposed rules to Alaska.
committee action
H.R. 2547 was introduced on July 16, 1999, by Congressman
Don Young (R-AK). The bill was referred to the Committee on
Resources. On July 28, 1999, the Committee held a hearing on
the bill. On September 22, 1999, the Full Resources Committee
met to mark up the bill. Congressman Don Young offered an
amendment to shorten the period of time in which the easement
granted under Title I shall be conveyed to Chugach Alaska
Corporation. It was adopted by voice vote. The bill as amended
was then ordered favorably reported by voice vote to the House
of Representatives.
committee oversight findings and recommendations
Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of
rule XIII of the Rules of the House of Representatives, the
Committee on Resources' oversight findings and recommendations
are reflected in the body of this report.
constitutional authority statement
Article I, section 8 and Article IV, section 3 of the
Constitution of the United States grant Congress the authority
to enact this bill.
compliance with house rule xiii
1. Cost of Legislation. Clause 3(d)(2) of rule XIII of the
Rules of the House of Representatives requires an estimate and
a comparison by the Committee of the costs which would be
incurred in carrying out this bill. However, clause 3(d)(3)(B)
of that rule provides that this requirement does not apply when
the Committee has included in its report a timely submitted
cost estimate of the bill prepared by the Director of the
Congressional Budget Office under section 402 of the
Congressional Budget Act of 1974.
2. Congressional Budget Act. As required by clause 3(c)(2)
of rule XIII of the Rules of the House of Representatives and
section 308(a) of the Congressional Budget Act of 1974, this
bill does not contain any new budget authority, credit
authority, or an increase or decrease in revenues or tax
expenditures. According to the Congressional Budget Office,
enactment of the bill might increase direct spending.
3. Government Reform Oversight Findings. Under clause
3(c)(4) of rule XIII of the Rules of the House of
Representatives, the Committee has received no report of
oversight findings and recommendations from the Committee on
Government Reform on this bill.
4. Congressional Budget Office Cost Estimate. Under clause
3(c)(3) of rule XIII of the Rules of the House of
Representatives and section 403 of the Congressional Budget Act
of 1974, the Committee has received the following cost estimate
for this bill from the Director of the Congressional Budget
Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, October 18, 1999.
Hon. Don Young,
Chairman, Committee on Resources,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 2547, the Chugach
Alaska Natives Settlement Implementation Act of 1999.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contacts are Victoria
Heid Hall (for federal costs), and Marjorie Miller (for the
state, local, and tribal impact.)
Sincerely,
Barry B. Anderson
(For Dan L. Crippen, Director).
Enclosure.
H.R. 2547--Chugach Alaska Natives Settlement Implementation Act of 1999
CBO estimates that implementing H.R. 2547 would have no
significant impact on discretionary spending. Because the bill
could increase direct spending if its enactment results in an
uncompensated taking of private property, pay-as-you-go
procedures would apply.
Title I of the bill would require the Secretary of
Agriculture to grant to the Chugach Alaska Corporation (CAC) an
easement through the Chugach National Forest for the purpose of
building a single-lane road and related facilities within the
right-of-way. The tile would require the easement to be granted
within 14 days of the bill's enactment. According to the Forest
Service, the agency expects to grant such an easement under
current law as part of an existing settlement agreement with
CAC. Although the bill could accelerate when the easement will
be granted, we estimate that implementing this provision would
have no significant impact on discretionary spending.
Title II would require the Secretary of the Interior to
withdraw certain public and private lands from all forms of
appropriations; usually, this means that federally owned land
is set aside only for certain governmental purposes. The bill
would require the Secretary to transfer ownership of any of the
withdrawn lands following an application for conveyance from
CAC. CBO assumes that for privately owned lands these
provisions could lead to an uncompensated taking of private
property, which could cause an increase in federal direct
spending to compensate private land owners for the value of
their property. We cannot predict, however, whether or not
enacting this provision would lead to a taking; nor can we
estimate the amount of compensation (if any) that might be due
to private property owners.
Title III would direct the Forest Service to coordinate
management planning for lands and resources in the National
Forest System in Alaska with the plans of Alaska native
corporations. Based on information from the Forest Service, we
estimate that implementing this title would have no impact on
federal spending because the agency already coordinates with
interested parties under its current process.
H.R. 2547 may contain an intergovernmental mandate as
defined in the Unfunded Mandates Reform Act (UMRA), but the
cost of this mandate would not exceed the threshold established
by that act ($50 million in 1996, adjusted annually for
inflation). Federal government actions required by title II
might result in a taking of property rights belonging to Alaska
native village corporations. If so, this would be a mandate
under UMRA. CBO estimates, however, that any economic losses
suffered by village corporations would be small. Further,
should the courts determine that this bill creates an
unconstitutional taking, these corporations would be entitled
to compensation from the federal government. No other
provisions in this bill would impose any costs on state, local,
or tribal governments. H.R. 2547 contains no private-sector
mandates as defined in UMRA.
The CBO staff contacts for this estimate are Victoria Heid
Hall (for federal costs), and Marjorie Miller (for the state,
local, and tribal impact). This estimate was approved by Peter
H. Fontaine, Deputy Assistant Director for Budget Analysis.
compliance with public law 104-4
This bill contains no unfunded mandates as defined under
Public Law 104-4.
preemption of state, local or tribal law
This bill is not intended to preempt any State, local or
tribal law.
changes in existing law
If enacted, this bill would make no changes in existing
law.
DISSENTING VIEWS
This legislation is highly controversial and very unlikely
to become law. It is strongly opposed by both the Secretary of
Agriculture and the Secretary of the Interior who are
recommending that it be vetoed by the President if enacted.
Title I preempts ongoing negotiations between the Forest
Service and the Chugach Alaska Corporation (``CAC'') on issues
related to a controversial road building project across
national forest lands; Title II would authorize an
unconstitutional taking of private property and the conveyance
of certain lands out of public ownership which have been
purchased by the Exxon Valdez oil spill trustees; and, Title
III requires that national forest management be coordinated
with corporate land owners.
The Administration was not allowed to present its testimony
in opposition to the bill at the July 28, 1999 hearing on this
legislation. Accordingly, a copy of that testimony, prepared
jointly by the Forest Service and Department of the Interior,
is attached as part of these views and summarized below:
``The bill preempts ongoing negotiations between the
federal government and CAC; it repeals the rights of public
access under the 1982 settlement agreement; reopens
entitlements under the Alaska Native Claims Settlement Act; it
gives regional corporations priority over village corporation
rights; it postpones settlement of entitlements of 11 other
regional corporation; it affects over 3,300 cultural sites and
over 135,000 acres of land; and, finally, it unnecessarily
imposes conditions on the Forest Service's land management
planning process by giving an unwarranted special review status
to Alaska Native corporations.''
In essence, Title I would resolve--in CAC's favor--ongoing
negotiations with the Forest Service, thus granting CAC an
unrestricted ``perpetual easement'' through lands in the fish
and wildlife-rich Copper River Delta region of the Chugach
National Forest in Alaska. CAC intends to use this easement to
build a 55-mile long road crossing over 350 streams (194
streams and 30 miles of road on national forest lands) to
access and log 8,000 acres of timber within 73,000 acres of
CAC-owned property known as the Bering River Coal Fields/Carbon
Mountain Tract. Those lands, and the right to a road access
easement, were obtained by CAC through a 1982 settlement
agreement with the U.S. and State of Alaska. After declaring
bankruptcy in 1991, CAC sold the subsurface coal rights to the
73,000 acres to the Korean Alaska Development Corporation.
While it is the case that the Reagan Administration's 1982
settlement agreement with the corporation provides for a
process to determine the terms and conditions for road access
across Chugach National Forest lands, only recently did CAC
fully pursue obtaining an easement. In lieu of NEPA compliance,
the Forest Service and CAC agreed to a MOU governing
environmental documentation in March 1998. A joint field review
of the road route was conducted in June of 1998. CAC submitted
documentation in support of the easement route on January 19,
1999. On March 4, 1999, the Forest Service provided CAC with
the text of a proposed easement and negotiations have continued
off and on since then. It is unfair to put the blame solely on
the Forest Service for the failure to produce an easement
agreement.
Notwithstanding frustrations with the pace of these
negotiations, it is inappropriate for the Congress to intervene
legislatively in the manner provided for by H.R. 2547. Among
other unresolved issues, the Forest Service is seeking to
assure public access and safety on the portions of the road
which cross Native corporation lands. However, CAC has little
incentive to negotiate in good faith if they believe that this
bill will become law and the easement would be conveyed by
Congress without regard to the 1982 settlement agreement and
the Forest Service's terms and conditions. And if the Forest
Service were to fail to protect public access and safety as
provided for in the 1982 settlement agreement, no doubt they
would deserve public criticism.
But even if the easement issues are resolved between CAC
and the Forest Service, major obstacles remain to actual
construction of this road. Development threats in the Copper
River Delta area of Alaska were controversial when President
Teddy Roosevelt created the Chugach National Forest at the
beginning of the century and they remain so today. Ironically,
President Roosevelt and Gifford Pinchot were seeking to protect
the very same lands that are now owned by CAC from exploitation
by the Alaska Syndicate, a coal monopoly formed by the
Guggenheim Brothers and John Pierpont Morgan.
In the 1980 Alaska National Interest Lands Conservation
Act, Congress recognized the tremendous values of the Cooper
River-Bering River area by mandating that the ``conservation of
fish and wildlife and their habitat shall be the primary
purpose for management,'' a directive which is unique in the
National Forest System (Section 501 of Public Law 96-487). As
the National Wildlife Federation has commented: ``[t]he Copper
River Delta lies at the conflux of the Copper River and the
Gulf of Alaska. At 700,000 acres it is the largest wetlands
complex on the Pacific Coast of North America and an ecosystem
of almost unparalleled productivity. The Delta hosts incredible
numbers and varieties of fish and wildlife. Considered by
biologists to be one of the most important shorebird habitats
in the western hemisphere, the Delta is a critical staging area
for over 16 million shorebirds and waterfowl. It supports
world-renowned salmon runs and is a haven for grizzly bears,
blacks bears, wolves, mountain goats, moose, mink, wolverines,
otters, sea lions and harbor seals.''
Given the environmental controversy, the significant
expense of constructing and maintaining this 55 mile long road
(30 miles crossing 194 streams on national forest lands), and
the marginal economics of harvesting low-value hemlock trees in
a depressed export market, some CAC shareholders have raised
the alternative of selling a conservation easement in the CAC
lands to the Forest Service. At the July 28th hearing on this
bill, Dune Lankard, a CAC shareholder, proposed that Congress
consider the option of offering to purchase a conservation
easement in CAC's lands. The goal would be to protect the
important natural assets in the Copper River Delta while also
providing a better direct financial return to the CAC
shareholders than would be likely be the case that under the
dubious economics of the road building and logging project.
Thus far in its 28 year history, CAC has produced only minimal
jobs or dividends for its 1,900 shareholders, according to Mr.
Lankard.
Instead of proceeding with this ill-advised legislation,
the committee should be working in the national interest to
purchase, on a willing-seller basis, a conservation easement
for the CAC lands at Carbon Mountain/Bering River. CAC was
willing to sell the coal subsurface rights to this 73,000 acre
tract to a Korean corporation. Moreover, other Native
corporations in the Prince William Sound region have chosen to
sell conservation easements to the Exxon Valdez oil spill
settlement trustees rather than engage in economically marginal
logging operations. Surely the shareholders of the Chugach
Alaska Corporation would benefit by at least having the
opportunity to compare the projected financial return and
controversy associated with the road building/logging project
and determine whether the option of a conservation easement and
maintaining these lands for future generations would be
preferable.
George Miller.
Enclosure.
Statement of Ronald E. Stewart, Forest Service, Deputy Chief for
Programs and Legislation, Department of Agriculture
Mr. Chairman and members of the committee: Thank you for
the opportunity to discuss this bill with you. I am Ron
Stewart, Forest Service Deputy Chief for Programs and
Legislation. I am accompanied today by James Snow from the
Department of Agriculture, Office of the General Counsel, and
Paul Kirton from the Department of the Interior, Office of the
Solicitor. Both Mr. Snow and Mr. Kirton are lawyers who were on
the federal team that negotiated the 1982 Chugach Natives,
Incorporated (CNI) Settlement Agreement, and who are also
involved in current negotiations between the federal government
and Chugach Alaska Corporation.
At the outset, for this discussion, we note that the 1982
CNI Settlement Agreement (``1982 Agreement'') was between the
State of Alaska, the Federal Government and Chugach Natives,
Incorporated (CNI). The successor corporation to CNI is Chugach
Alaska Corporation (CAC). Depending on the context, we may
refer to either or both CNI or CAC, but they both refer to the
Alaska native regional corporation representing the natives of
south central Alaska.
As noted below, we strongly oppose this bill. The bill
preempts ongoing negotiations between the federal government
and CAC; it repeals the rights of the public access under the
1982 Agreement; reopens entitlements under the Alaska Native
Claims Settlement Act; it gives regional corporations priority
over village corporation property rights; it postpones
settlement of entitlements of 11 other regional corporations;
it affects over 3300 cultural sites and over 135,000 acres of
land; and, finally, it unnecessarily imposes conditions on the
Forest Service's land management planning process by giving an
unwarranted special review status to Alaska native
corporations. Therefore, the Secretaries of the Interior and
Agriculture will recommend that the President veto the bill
should it be passed by the Congress.
title i
The Alaska Native Claims Settlement Act of 1971 (``ANCSA'')
established a very complicated and expensive settlement of the
land claims of Alaska natives. As this Committee is well aware,
over 40,000 acres and almost a billion dollars constituted this
settlement. CNI was one of the original twelve regional
corporations with land selection entitlements under ANCSA. Its
entitlement amounted to about 360,000 acres of federal land.
Unfortunately, from the outset of ANCSA, CNI was
dissatisfied with ANCSA limitations on the amount of acreage
which could be selected from within the National Forests. As a
result, section 1430 of the Alaska National Interest Lands
Conservation Act of 1980 (ANILCA), required a study to be
conducted by the federal government, the State of Alaska and
CNI to ascertain lands that might be made available for
exchange to CNI. In the ensuing two years following the
enactment of ANILCA, representatives of the Departments of
Agriculture and the Interior, the State of Alaska and CNI
worked hard to resolve the land selection issue. This process
culminated in the 1982 Agreement, a 143 page contract which
constituted the ``full and final satisfaction of all rights and
obligations of the United States to CNI.''
Among other things, the 1982 Agreement provided for the
exchange of CNI of thousands of acres of land within the
Chugach National Forest. One of the principal tracts of land
conveyed to CNI was the Bering River Coal Fields, sometimes
called Carbon Mountain, a large area lying north of Katalla and
east of the Copper River. Katalla and the Copper River
constitute some of the most critical wildlife areas in Alaska,
so much so that the Copper River area is designated for special
management for wildlife under section 501(b) of ANILCA.
However, obtaining access to the Bering River coal fields
necessarily requires a road.
Because both CNI and the Federal government recognized the
extreme importance and sensitivity of the areas involved, the
1982 Agreement devotes 9 pages of contractual provisions
governing access to the Bering River area. In a carefully
crafted negotiated settlement, the 1982 Agreement provides for
the granting of easements to CNI under stringent terms and
conditions. All of the parties understood that access would not
be easy, cheap, or expeditious. Rather it was contemplated that
access would be carefully and jointly planned to facilitate
commercial use of the area with minimal environmental harm to
the resources and allowance of public use of the rights-of-way.
The Forest Service has negotiated in good faith throughout
this process. In March, 1999, within the promised 45-day
period, the agency offered CAC an easement incorporating all
the required terms and conditions required by the 1982
Agreement. CAC declined that offer. At the initiative of the
Forest Service, negotiations were renewed in early June and
substantial progress was made toward agreement.
We are pleased to report that since the June meeting, the
Forest Service and Chugach Alaska Corporation (CAC) have agreed
on most outstanding issues. The principal obstacle now concerns
rights of public access on the portions of the road crossing
CAC land. We believe that the Agreement granted this right of
access. Once this issue is resolved, the easement would be
issued immediately. At this stage in the negotiations, we
believe the parties are very close to an agreement. H.R. 2547
overrides the balance that was agreed to in 1982, and fails to
protect public access to national forest lands, which the
Departments oppose.
title ii: ancsa historic site and cemetery selections
We believe that enactment of Title II as presently written
constitutes a major rewrite of the CNI agreement, and of the
Alaska Native Claims Settlement Act, could result in an
unconstitutional taking of private property, would disrupt
settlements with other Native corporations and spawn new
litigation.
Title II of the bill would allow reinstatement of prior CNI
applications under section 14(h)(1), pertaining to cemetery and
historic sites, which were either rejected or withdrawn, for
lands that have since been conveyed to village corporations.
The 1982 Settlement Agreement explicitly prohibits CAC from
expanding its claims to cemetery and historic sites. Section 16
of the agreement states that CNI (now CAC) shall not ``assert
or seek to acquire any other legal authority to make future
selections pursuant to section 14(h)(1) of ANCSA within the
national forests.'' Moreover, Regional corporations were not
permitted to make Sec. 14(h) selections within village
withdrawal areas. CAC's attempt to now lay claims to village-
owned lands for cemetery and historic sites is at complete odds
with the express terms of ANCSA. Such lands were never
available to CAC for cemetery or historic sites.
Title II would have the United States convey interests in
lands to CAC that the United States does not have; thus it
would be ineffective. Section 203 of Title II would require the
Secretary of the Interior to withdraw lands from two sources.
All of these lands are subject to being transferred to CAC
without compensation. First, any public land that was the
subject of a section 14(h)(1) application by CNI and
subsequently was conveyed to a village corporation is to be
withdrawn. This could direct the Secretary of the Interior to
withdraw for government purposes land which is in private
ownership and which we do not own. Such action could result in
placing a cloud on the title of other landowners, including the
State of Alaska and the respective Village corporation.
The second source of land that would have to be given to
CAC without compensation would be all those lands acquired by
the federal government under the Exxon Valdez Oil Spill
Restoration program (EVOS) in the Chugach region. Conveyances
under Title II would also undermine one of the key benefits of
the EVOS acquisitions, public access to lands acquired from
Village corporations.
There is no provision in Title II for CAC to pay anything
to the Oil Spill Restoration program. Various less than fee
title interests were purchased by the EVOS program. Sometimes
only timber rights were purchased. In other cases, it was
conservation easements or special protective covenants.
Although the federal government has used oil spill money to
acquire an interest in approximately 230,000 acres, only 98,947
acres of fee surface estate were purchased within the national
forest, 27,357 acres within the Kenai Fjords National Park and
2,279 acres within the Alaska Maritime National Wildlife
Refuge. In all cases, the surface estate was purchased subject
to a conservation easement previously granted to the State of
Alaska, and the village corporations retained the historic and
cultural resources. CAC's proposition that the spirit of ANCSA
requires that these lands now be turned over in fee, for free
to CAC is highly problematic, since these lands were not
originally available for selection to CNI, only to villages,
and it would set a bad precedent. The United States cannot
convey what it does not have.
Title II would adversely affect the 11 other ANCSA regional
corporations. Under ANCSA, some 2 million acres were set aside
under Sec. 14(h) for specific purposes including cemetery sites
and historic places. Any of the 2 million acres not allocated
or ultimately used for a specific purpose will be reallocated
among all 12 regional corporations and conveyed under Sec.
14(h)(8). No Sec. 14(h)(8) entitlement can be finally
calculated and conveyed until all Sec. 14(h)(1) conveyance are
finished. If Title II is enacted, CAC will be able to keep its
Sec. 14(h)(1) selection options open indefinitely, guaranteeing
that no other regional corporation will able to receive its
full and final Sec. 14(h)(8) entitlement in the near or even
foreseeable future.
The Departments are strongly opposed to Title II, which
would negate important provisions of the carefully wrought 1982
agreements, effectively amend ANCSA, and provide special
benefits to one Alaska Native corporation at the expense of
others.
title iii
Title III of H.R. 2547 would require the Secretary of
Agriculture to ``coordinate'' all land and resource management
plans with all Alaska native corporations which adjoin the
national forests in Alaska.
We believe that adequate and extensive coordination is
already provided native corporations under existing law. As
adjoining landowners, native corporations can fully participate
in the land management planning process, and are encouraged to
do so. Indeed, CAC has been actively involved in the revision
of the Chugach National Forest plan.
If Title III is intended to provide Alaska Native
corporations under ANCSA with a special status akin to that
provided Indian tribes, then we believe such an amendment is
clearly inconsistent with ANCSA's provision for native
corporations. Unlike Indian tribes, Alaska native corporations
are independent corporate, business entities organized for the
benefit of their shareholders. For profit corporations should
not have special nights and privileges in the land management
planning process.
summary and conclusions
Unfortunately, H.R. 2547, if enacted, would greatly expand
the benefits of the 1982 Agreement to CAC, but would take away
reserved rights of the United States, the State of Alaska and
the public. The proposed changes to CAC's entitlements under
ANCSA will adversely affect the management of federal lands in
Alaska. Finally, there is no need to provide native
corporations with special and additional rights in the Forest
Service land management planning processes. For these reasons,
we strongly oppose this legislation.
This concludes the prepared testimony on H.R. 2547. Thank
you, Mr. Chairman. I would welcome any questions the Committee
may have.