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 

( 

Printed for the use of the 

Committee on Energy and Natural Resources 
THE IMPLEMENTATION OF THE ALASKA NATIONAL INTEREST LANDS CONSERVATION ACT OF 1980, 

MENTS TO THE ACT INCLUDING PERSPECTIVES ON THE ACT’S IMPACTS IN ALASKA AND SUGGESTIONS FOR IMPROVE-
U.S. GOVERNMENT PUBLISHING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Publishing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001

98–964 2017

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 

( 

Printed for the use of the 

Committee on Energy and Natural Resources 

Available via the World Wide Web: http://www.fdsys.gov 
(II) 

COMMITTEE ON ENERGY AND NATURAL RESOURCES 

LISA MURKOWSKI, Alaska, Chairman 

JOHN BARRASSO, Wyoming 

JAMES E. RISCH, Idaho 

MIKE LEE, Utah 

JEFF FLAKE, Arizona 

STEVE DAINES, Montana 

BILL CASSIDY, Louisiana 

CORY GARDNER, Colorado 

ROB PORTMAN, Ohio 

JOHN HOEVEN, North Dakota 

LAMAR ALEXANDER, Tennessee 

SHELLEY MOORE CAPITO, West Virginia 

MARIA CANTWELL, Washington 

RON WYDEN, Oregon 

BERNARD SANDERS, Vermont 

DEBBIE STABENOW, Michigan 

AL FRANKEN, Minnesota 

JOE MANCHIN III, West Virginia 

MARTIN HEINRICH, New Mexico 

MAZIE K. HIRONO, Hawaii 

ANGUS S. KING, JR., Maine 

ELIZABETH WARREN, Massachusetts 

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 
(III) 

C O N T E N T S 

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 
Page

IV 

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 
(1) 

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 de-
2 

veloped 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. 
3 

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. 
4 

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:] 
5 

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 
6 

Supplemental explanation ofthe need to inventory all425,000 acres of young-growth on the Tongass 

The Forest Service knows basically how many acres of young growth were harvested on the Tongass in 

each ten year period. The agency also has developed growth models for Southeast. These models 

predict the tree height, diameter and volume for various site classes. However the agency does not 

know which young growth stands are on which site class, so they have no accurate way to apply the 

growth models to individual stands or even for groups of stands within a 10-year period. 

Further, the existing growth models were developed from sites that were all below 500-feet elevation. 

In order to provide reasonably accurate information about the diameter, height and volume of trees by 

species at various harvest ages, the agency must first insure that the 1984 growth and yield tables are 

valid for young growth sites up to about 1,500-feet elevation. Next the agency must measure the 

existing height and age of the trees on each site in order to determine the site classes for all425,000 

acres of young growth. 

In order to have a reasonably precise inventory, each field plot should represent no more than about 2.5 

acres of timber (note, industry typically measures about 1.0 plot per acre to appraise a timber sale). Half 

of these plots can be simple tree count plots by species, but tree heights, diameters, species and grades 

should be measured on at least half of the plots. This will require about 86,000 measure plots and 

another 86,000 species-count plots. Depending on crew size, this effort will take one to two years to 

complete. 

In order to make a realistic financial analysis or proforma for log export and manufacturing from younggrowth timber on the Tongass, it is necessary to analyze all the age classes on a representative mix of 

site classes so that we know how much young-growth and the characteristics of those trees that will be 

available in future decades. 

We also need to gather information necessary to estimate the potential products that can be sawn from 

each age-class by site-class, since the trees grow at much different rates on each site-class. 

Here is a list of some of the necessary data that should be measured: 

1. Knot distribution (amount of volume that is in excess of 16-inches in small end diameter with at 

least 24-inches of clear cutting between knots; this is the minimum criteria for cutting shopgrade lumber). 

2. The amount of sweep outside of the scaling cylinder for each 20-foot log segment. 

3. Side slope angle and elevation 

4. Site-index (the average age and average height for the trees on each plot can be used to 

estimate the site index for that plot). 

5. Log grades and log sorts for both domestic and export markets 

6. The normal diameters, heights and form-classes, basal area etc. that are needed to calculate log 

grades, sorts and volumes. 
7 

The young growth timber information in items 1-6 above will help determine the potential value 

of the timber to either a manufacturing facility or the export markets. The value estimate can 

then be combined with the estimated harvest cost information such as logging system, access 

road construction estimates and length of haul in order to prepare a financial analysis of the 

potential profitability of harvesting the trees at various ages. 
8 

Transition to Young-growth Harvesting 11-30-09 

There has been a lot of talk lately about the need for the timber industry in Southeast 

Alaska to transition to young-growth timber harvesting. This transition concept is being 

promoted like it is some new idea and that it can be completed quickly. The transition is 

not a new concept and it will not be complete any time soon. The forestry profession has 

always been about growing young trees and transitioning out of the old-growth timber. 

Young-growth timber is much more uniform than old-growth, young-growth is 

essentially defect free and young-growth stands will have double the volume of timber 

per acre that exists in most old-growth stands. 

Early foresters spoke in terms of sustained yield and the acreage of timberland needed to 

sustain manufacturing facilities in perpetuity. In 1909 shortly after the Tongass National 

Forest was established, government foresters completed an initial assessment of the 

commercial timberland and by the 1930s researchers (RF Taylor- 1934 and Meyer1937) had completed the first growth and yield tables which were indexed by site 

conditions for the Tongass. These yield tables allowed foresters to calculate the harvest 

age that captures the maximum growth potential for stands of timber on various growing 

sites. 

Trees grow like people, slowly at first, then rapidly for a period of time, then slowly 

again. The peak growth is referred to as the Culmination of Mean Annual Increment. The 

Forest Service is obligated by the National Forest Management Act to defer rotational 

harvest until a stand achieves this culmination. If the trees are harvested too soon the 

growth potential of the land will not be maximized. Growing the trees beyond the 

optimum date would result in larger, more valuable trees but again, the maximum growth 

potential of the land would not be achieved and additional acres would have to be 

managed for growing and harvesting timber in order to compensate for harvesting the 

timber at the wrong time. 
9 

Growth rate 

Stand age 

In addition to optimizing the growth potential of the land, the economic value of the 

young trees must be considered. 96% of the young-growth available under the current 

forest plan is less than 50-years old. At age 50 most of the trees in a typical stand of 

timber are less than eight inches in diameter and their value is much less than the cost of 

harvesting. In contrast, the same trees will be about sixteen inches in diameter and will be 

much more valuable at the optimum harvest age of around I 00-years. 

Average tree diameter by age class 

35 

30 

25 

20 

15 

10 

~ ~ ~ ~ ~ ~ # ~ ~ 

Stand age 
10 

The Tongass National Forest covers more than 90% of Southeast Alaska and, according 

to the 1989 Forest Service 'Benchmarks' publication, the commercial timberland on the 

Tongass that is not set-aside in congressional reserves would sustain an annual harvest 

level of nearly two billion board feet of saw timber. However, only a small percentage of 

the forest is needed or scheduled for harvest. In 1966 the maximum allowable harvest 

level was 825 million board feet, in 1980 the maximum allowable level was dropped to 

450 million board feet and in 1997 the level was dropped once again to the current level -

about 230 million board feet of saw timber (267 million board feet including utility/pulp 

logs). lt is unlikely that the timber industry will have sufficient economy of scale to be 

cost competitive at the 230 million board foot harvest level, but for now that is irrelevant 

because, with the current availability of timber sales at less than 50 million board feet per 

year, the industry is struggling just to survive. 

In a 2004 young-growth management paper (Barbour- 2004) the Forest Service explains 

that "Under the current plan future harvests from federal land will ensure that the land 

base available for young-growth management increases in each decade until harvest of 

young-growth timber replaces old-growth harvests about 50-60 years from now". The 

authors of that paper are correct; last thing we need right now is a premature transition to 

harvesting our young-growth timber. 
11 

Introduction 

Written testimony from Sally Gibert submitted to the 

U.S. Senate Committee on Energy and Natural Resources 

regarding implementation of the 

Alaska National Interest Lands Conservation Act 

December 3, 2015 

I am submitting written testimony to the Committee from two perspectives: 1) I served as 

the State of Alaska's ANILCA Program Coordinator for 27 years, and 2) since retiring, I 

provide ANILCA training offered by the Institute ofthe North and Department of the 

Interior University twice per year to agencies and the public. I am deeply committed to 

improving the quality of ANILCA training for administrators, legislators, and Alaskans. 

My first job in Alaska in 1974 was with the Joint Federal-State Land Use Planning 

Commission for Alaska, set up by Section 17 of the Alaska Native Claims Settlement Act 

(ANCSA), the same section that directed federal withdrawals and studies leading to 

ANILCA. I also lived for a few years in the tiny community of McCarthy in the Wrangell-St. 

Elias region before and during ANILCA's earliest years- witnessing first hand some of the 

changes experienced in rural Alaska while surrounded by the largest new national park in 

the nation. In 1984, I was hired by the Governor's Office as the statewide ANILCA Program 

Coordinator, where I coordinated the State of Alaska's input on land use management 

plans, policies, and regulations to implementANILCA. 

Based on this diverse personal history, I have a longstanding empathy for conservation 

values, the realities oflife in rural Alaska, and the resource-driven economic needs of the 

state as a whole. 

The ANILCA Context 

ANILCA was an enormous compromise between national conservation interests and the 

need for Alaskans to be able to use and potentially develop the land and resources on 

which the newly formed State of Alaska and its large rural resident population depended. 

The nature of the compromise was truly unprecedented: vast areas designated primarily 

for conservation purposes, balanced with allowances and other special provisions to 

address Alaska's fledgling economy, lack of infrastructure, and rural way of life. 

No other state has one federal law that applies to virtually all federal lands within its 

borders. Congress has never before (or since) taken such a comprehensive look at all 

federal lands within one state and created an equivalent of ANILCA. 

The individual national park and refuge units created by ANILCA are also of an entirely 

different scale. For example, Wrangell-St. Elias National Park and Preserve, at 13.2 million 

acres, is the largest national park unit in the nation- six times larger than Yellowstone. 

1 
12 

ANILCA's two largest national wildlife refuges in Alaska, both over 19 million acres, are 

each significantly larger than the State ofWestVirginia. One of these refuges surrounds 

more than 40 villages. 

More than 20 million acres of combined private and state lands are located within the 

exterior boundaries of conservation system units in Alaska, and millions more acres can 

only be accessed by crossing these conservation system units. The private lands include 

surface and subsurface land conveyed to Alaska Natives under ANCSA. 

Recognizing these and other unique circumstances, Congress incorporated a number of 

unprecedented ANJLCA allowances to provide for traditional uses of the land by Alaskans 

and ensure that the State and Native corporations could use and develop their lands under 

ANCSA and the Statehood Act for economic sustainability. 

At ANILCA's mostly-jubilant signing ceremony 3 5 years ago, President Carter and other key 

players made the following statements regarding compromise and balance: 

President Carter: "(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." 

Senator Ted Stevens: "I do believe there is balance in this bill. because it will fulfill the 

commitment of the Statehood Act." 

Senator "Scoop" Jackson: " ... it's also a tribute to the best in the art of compromise .... It's 

not what everyone wanted on either side of the issue, but I believe it will be indeed a 

lasting monument in striking a balance between development on one hand, and 

preservation and conservation on the other." 

Representative Mo Udall: "''m glad today for the people of Alaska. They can get on with 

building a great State. They're a great people. And this matter is settled and put to 

rest, and the development of Alaska can go forward with balance." 

ANILCA today 

ANJLCA has been good for Alaska in many ways; tourism and outdoor recreation is an 

increasingly important segment of the Alaska economy, and most Alaskans take pride in 

knowing that the best of Alaska's natural areas will be protected in perpetuity. A number 

of small "gateway" communities benefit from the ANILCA-authorized local hire provisions, 

which allow local residents to share their unique, local knowledge with unit managers and 

the public. The large conservation system units protect habitat for many species of fish and 

wildlife, while simultaneously providing opportunities for harvest, including for 

subsistence. ANILCA also finally resolved the large scale ownership of land in Alaska, 

allowing federal land transfers to the State and Native corporations to proceed; and 

ensured the ability of all non-federal landowners to develop and access their lands, both 

within and outside of the conservation system units. 

2 
13 

Yet in the 35 years since passage of ANILCA, incremental actions are changing how ANILCA 

is implemented, and some of the compromises have been lost. The biggest ANILCA 

challenge today is that Alaskans and federal land managers located in Alaska and in 

Washington DC either do not understand or choose to overlook ANILCA and its unique 

provisions for Alaska. 

Thus actions taken by this Committee regarding ANILCA should clarify and refresh the key 

understandings that led to passage of ANILCA 35 years ago, and examine how the 

fundamental compromises still apply in today's world. Contrary to myth, ANILCA has been 

amended numerous times, often with bipartisan support, so amendments are a legitimate 

tool; but I recommend first considering other means to restore the balance sought by 

Congress in 1980. 

ANILCA Implementation Challenges 

Loss of institutional knowledge about ANILCA. Hundreds of representatives of State and 

Federal agencies, Native corporations, and many non-governmental organizations worked 

alongside Congressional staff on crafting the final ANILCA legislation in 1980, and 

participated in the initial implementation. All shared a collective understanding of the Act 

and the compromises reflected in its passage. Most of those people have passed away, are 

retired, or will soon be retired. Few people have access to this collective but shrinking 

wisdom, or know little about the law or the rationale for its individual provisions. 

Federal land manager turnover. Federal agencies rotate policy-level managers in and out 

of Alaska. Federal lands outside Alaska are managed primarily under laws applicable 

nationwide. Many of ANILCA's management provisions are quite different from 

corresponding "lower 48" units, creating a steep learning curve for new managers 

transferred to Alaska. It usually takes several years to figure it out, and just when they 

start to "get it" they often move on and the next steep learning curve begins. 

Rural residents. inholders. and other individual Alaskans also do not understand ANILCA. 

Alaska residents and Native corporation managers often do not understand their rights 

under ANILCA. Like federal managers, many younger Alaskans, including those in the news 

media, also have misconceptions about key ANILCA provisions, such as state management 

offish and wildlife, the subsistence priority on federal lands, and the so-called "No More" 

clause(s). For example, considerable misinformation shrouded public discussion about the 

President's recommendation last winter to designate the Arctic National Wildlife Refuge 

coastal plain as Wilderness. In this instance, both opponents and proponents of the 

President's action often seemed to miss the fact that, under ANILCA, only Congress can 

decide the fate of the refuge's coastal plain. 

National regulations or policies increasingly overlook ANILCA's unique provisions. Agency 

staff and policy makers in both departments of the Interior and Agriculture sometimes 

generate national regulations and policies that are blind to, or purposely ignore, ANILCA in 

significant ways, undoubtedly driven in part by the Joss of institutional knowledge over 

3 
14 

several federal administrations. Although regulations and policies cannot trump laws, it is 

time-consuming and expensive for Alaskans to try to influence national agency decisions 

that conflict with ANILCA. Some examples: 

1996 National Park Service Rulemaking at 36 CFR 1.2(a)(3) (nationwide): Rule 

extends park rules onto state-owned navigable waterways, even though ANILCA 

says park and refuge rules do not apply to non-federallands. The federal Court 

compounded the problem by expanding NPS authority to nonfederallands. As this 

Committee knows, the issue is scheduled to be heard by the US Supreme Court. 

The 1997 Refuge Improvement Act: The Act clearly directed that, if conflicts 

between the Act and ANILCA arise, then ANILCA shall prevail. A series of national 

refuge policies followed that continue to create ANILCA implementation difficulties 

today. For example, a 2008 Wilderness Stewardship policy was cooperatively 

developed with the States and contains a special chapter for Alaska that recognized 

completion of ANILCA wilderness reviews. Yet a 2010 change made to the national 

policy without consultation required new wilderness reviews on all refuges in 

Alaska. 

Over the decades, many of us with ANILCA expertise worked hard with the increasingly 

out-of-touch Washington bureaucracy to figure out solutions in consultation with affected 

Alaskans, sometimes with lasting mutually satisfactory outcomes. Some successful 

examples: 

In 2004, State of Alaska comments on the nationwide Wilderness Management 

"Minimum Requirements Decision Guide" led to extensive consultation and 

coordination ending with production of an "Alaska Supplement," specifically 

reflective of ANILCA and how it modifies certain management decisions within 

Wilderness areas in Alaska. The Alaska Supplement was developed over two years 

by an interagency working group, including affected state agencies, and signed by 

the Alaska heads of all four federal land managers in 2006. It remains in effect today. 

In 2005, the US Forest Service finalized the national "Access and Travel 

Management Rule" that was highly problematic for Alaska, but was published with 

this minimalist statement in the Preamble: "ANILCA is a valid existing right." At the 

time, I thought this approach was woefully inadequate; but it eventually provided 

sufficient catalyst to open a productive dialogue between Forest Service policy 

makers in Alaska and the State of Alaska to cooperatively invent a regulatory and 

policy "patch" that removed the built-in conflict between the national rule making 

andANILCA. 

The 2007 National Park Service Inholder Access Guide was the product of another 

successful effort in cooperation with the State, Alaska Native corporations, 

individual private landowners, and other stakeholders. While it was inherently an 

Alaska-based challenge, Washington leadership let the process work, respecting that 

the federal managers on the ground in Alaska were best equipped to work it out. 

4 
15 

Unfortunately, all four federal land managers in Alaska are currently grappling with a new 

wave of recent national direction that provides insufficient guidance on ANlLCA, or that 

directly challenges some of ANJLCA's unique provisions. 

Recommendations 

1. Expand ANILCA education opportunities 

An expanded and institutionalized program is needed to more systematically inform and 

educate federal land managers and others in Alaska and Washington, DC about ANJLCA on 

an on-going basis, including ANILCA's historical context and contemporary relevancy. 

Without a basic understanding of the law and its many interrelated provisions, appropriate 

implementation decisions will continue to cause unnecessary conflict and expensive 

litigation. 

Three target audiences would benefit by expanded ANILCA knowledge: 

Alaskans, including Native corporations, state and local government leaders 

Federal land managers in Alaska 

Federal land management policy and decision makers in Washington, DC. 

New educational tools need to be developed soon with involvement of existing and for 

retired federal and state employees and others who collectively possess a working 

knowledge of ANILCA. For obvious reasons, the sooner this institutional knowledge is 

tapped, the better. 

More web-based resources are needed to facilitate individualized research on the 

background and history of ANILCA; for example, there is no public source to find out about 

ANILCA amendments, even though ANILCA has been amended many times. And there is no 

place to find out about the myriad studies, outcomes and reports called for by ANILCA. 

Demand is also on the rise for other types of on-line learning opportunities to supplement 

the Institute of the North ANILCA Training courses and to provide more in-depth 

information on specific topics. The current bi-annual ANILCA Training is labor-intensive 

and involves the in-person participation of 15 different presenters to cover the needed 

expertise, but each class only reaches about 50-55 people. 

2. Effective Alaska-based consultation and cooperation 

In addition to an increased understanding of ANILCA, there is a growing need for genuine 

consultation about how to implement ANILCA in a contemporary context. ANILCA is often 

referred to as "a work in progress," accomplishing much more than drawing boundary lines 

on maps. ANILCA calls for, and anticipates, hundreds if not thousands of subsequent 

decisions over time providing criteria, various public involvement processes, and dozens 

of references to consultation and cooperation. 

5 
16 

While the need for effective day-to-day consultation has actually increased with time, I'm 

dismayed by the erosion of such consultation, which accelerated over the last few years. 

I'm not so naive to think that good communication alone will solve problems; however, I 

have found it to be a necessary ingredient. The State ANILCA Implementation Program has 

a long history of participation on planning teams, providing internal reviews, sharing data, 

and use of other strategies to avoid or resolve issues before they take on a life of their own. 

I'd like to see federal agencies take better advantage of the State ANILCA team's expertise, 

even if there isn't full agreement 

To reinforce the value of communication, Congress also included an entire Title (Title XII-

"Federal-State Cooperation"), setting up the Alaska Land Use Council to support Congress' 

vision of face-to-face consultation, coordination, and cooperation among high level federal, 

state, and Alaska Native representatives. The Council was highly effective in issue 

resolution in the decade following passage of ANILCA. The Council's staff committee also 

worked to reach agreement between meetings to reduce the number of issues the Council 

itself had to deal with, providing an effective incentive for the federal, state, and Native 

members to work together. Even though the Council formally recommended continuation, 

Congress, through inaction, allowed the Alaska Land Use Council to sunset after 10 years. 

All participants intended to continue informal consultation and cooperation, but with 

changing agency heads over time and no regular face-to-face meetings, the commitment to 

respect overlapping interests and consider other perspectives through open consultation 

diminished. 

Thus in addition to improved day-to-day federal-state coordination, I also recommend reestablishing the Alaska Land Use Council, or a similar formal mechanism, to facilitate policy 

level consideration of important ANILCA issues. Putting Alaska's federal, state and Native 

land managers back in the same room to collectively discuss strategies would help to work 

out differences without playing jurisdictional trump cards. In my experience, the benefits 

of such regular face-to-face connections cannot be overstated. 

Alaska-based federal managers should be expected and empowered, within broad 

parameters, to work with state and Native counterparts on appropriate ANILCA solutions 

in an Alaskan context and with a full and mutual understanding of Congress' intent in 

passage of ANILCA. 

Thank you for the opportunity to comment on the future implementation of ANILCA. 

6 
17 

Subject: FW: ANILCA hearings 

·····Original Message····· 

From: Ronald Yarnell [mailto:arcticron@gmail.com] 

Sent: Wednesday, November 25, 2015 8:50PM 

To: Ripchensky, Darla (Energy) 

Subject: ANILCA hearings 

Senators, 

The Alaska National Interest Lands & Conservation Act of 1980 (ANILCA) was one of the greatest conservation bills 

passed by Congress in the last century. 

The passage of the Alaska Statehood Act of 1958 granted Alaska the right to select over 100 million acres of land from 

the public domain. This was the most generous state land grant in the history of our country. 100 mi!Hon acres for less 

than 600,000 people! 

Then in 1971 the Alaska Native Claim Settlement Act {ANCSA) settled the Alaska Native claims by giving the native 

people of Alaska 40 million acres of land and practically a billion dollars. ANCSA re-opened the federal lands to State 

selection and allowed the Alaska Oil Pipeline to be constructed. 

However, over the next ten years Congress argued about the conservation lands withdrawn under sections d-1 and d-2 

of the ANCSA, that were afforded temporary protection. It wasn't until President Jimmy Carter declared 60 million acres 

of National Monuments in Alaska, on the eve of protections expirations, that Congress finally decided to act and passed 

ANILCA. 

ANILCA has been a very just and fair bill. Congress bent over backwards to make the least amount of impact upon 

Alaskans. There were dozens of hearings all over the state and anyone affected by this bill had the opportunity to be 

heard. Many modifications were made to the bill that took into consideration Alaskan's unique situations. I know of one 

case in the Wrangell Mountains where over 600,000 acres were excluded from National Park designation, primarily 

because one hunting guide took six clients a year hunting there. 

ANILCA has done more for the economy of the state of Alaska than any other bill except the bill authorizing the 

construction of the Alaska Oil Pipeline. In fact, it was precisely because Alaska was being opened to all this development 

that Congress included the conservation sections d·l & d-2 in the Alaska Native Claims Settlement Act. This was 

probably the first time in the history of our country where Congress actually acted to plan conservation along with 

development. 

I know because I was one of hundreds of small companies leading wilderness trips all over the state and my livelihood 

was being threatened by development. Tourism is the second largest industry in our state.lt is larger than mining, 

timber, fisheries .... everything except oil. Before oil, tourism was Alaska's number one industry. Hundreds ofthousands 

of visitors come to our state to see our bounty of National Parks, National Preserves, National Wildlife Refuges, National 

Wild & Scenic Rivers & Wilderness Areas. When people think of Alaska they think of Wilderness. ANILCA helped protect 

this incredible economic asset we have. 
18 

Things have changed in this state in the 30 years since passage of ANILCA. The vast majority of Alaskan citizens support 

our National Parks, Preserves, Refuges and Wilderness Areas. The young people that have grown up since the passage of 

ANILCA have learned to value these areas. Tens of thousands of business across the state benefit financially from the 

hundreds of thousands of people visiting these areas. 

For the last 30 years Alaskan's themselves have been enjoying these areas. In fact, long before ANILCA passed, Alaskans 

used these areas and valued them. Resource development threatened these areas. Motor boats, mining, fogging, oil & 

gas exploration and other activities were threatening the lifestyles Alaskan enjoyed. Some people think that all Alaskans 

were against ANILCA. That fs not true. As is usua~ everywhere, there were many Alaskans that supported these 

conservation efforts. Today, that support is even greater within our state. 

Many more Alaskans are living in urban environments and appreciate the chance to get out in their parks and wildlife 

refuges just like people elsewhere. Even in our rural areas many people appreciate the emphasis ANILCA placed on local 

use of the lands and its wildlife. ANILCA did a good job of protecting pre-existing uses in these areas. 

However, there are still some people that resent the passage of ANILCA. There may be some legitimate complaints, but 

these must be weighed with the publics rights in mind, not just to allow exceptions for a few that go against the original 

intent of ANILCA and against the rights ANILCA was set up to protect. 

Probably the most classic example is the Arctic National Wildlife Refuge. for40 year now the oil industry has been trying 

to get into this very special area. ANILCA acknowledged the importance ofthis area from a conservation perspective, but 

it aiso authorized for limited exploration in the 1002 area. That exploration was completed & since that time Congress 

has not passed legislation to open up the Refuge that was supported by the public. The vast majority of Americans 

support protecting all of the Arctic National Wildlife Refuge as wilderness. They know that the oil industry already has 

access to practically all of the petroleum bearing lands on the north slope of Alaska, Why would they want to open up 

this one unique place, of such national significance, to more development. 

The areas set aside by ANILCA in 1980 are nationally significant areas, just like Yellowstone, Yosemite and the Grand 

Canyon. Why would we allow these areas to be opened up when two thirds of the rest of the state is pretty much open 

to everything? 

Another example is the case of the law suit by John Sturgeon against the National Park Service. Pre-existing uses on 

rivers in the ANILCA were allowed. But that d0€s not mean every new means of travel is going to be allowed up every 

river tn the state. The reason ANILCA was passed was to set aside some places where Alaskans and others can carry on 

traditional values. The vast majority of Alaska is already open to all kinds of uses. ANILCA was passed to set aside those 

areas of national significance where we wouldntt a How certain things and certain kinds of development The whole rest 

of the state and even the a majority of ANILCA lands are open to a variety of uses. But thank goodness, ANILCA prohibits 

the use of hovercraft} and other new forms of transportatJon. on rivers inside Alaskan National Parks & Preserves. 

There are few things more Alaskan than being able to paddle down one of our wild rivers in a quite and peaceful 

manner. Why does Mr Sturgeon feel he has the right to run his hover craft anywhere he wants at the expense of 

everyone else? This is predsely why AN!LCA was passed, to leave some places where people and wildlife can escape 

these modern-day means of travel. Most Alaskans don't want to turn Alaska into just a Jarger version of states in the 

lower forty-eight. They want to protect the special values that make this state such a wonderful place to live and work. 

Another case where the state of Alaska wants to alter ANILCA is in the case of predator control. ANILCA protected 

subsistence rights of native and local residents. The state of Alaska has never been able to pass state legislation that 

mirrors this federal guarantee written into ANILCA. As a result the feds have taken over the management of subsistence 

resources on federal lands. For some reason the state of Alaska still seems to think they have the right to conduct 

predator control on federal lands. Even more outrageous, they seem to think they have the right to conduct predator 

control on National Park Service administered National Preserves. These are areas that were set aside by ANilCA to 

protect natural functioning ecosystems. 
19 

Things have gotten so bad in Alaska that the state now manages wildlife for the maximum production of huntable 

species. Obviously this is counter to what ANILCA protects. Why should the state be allowed to conduct predator control 

on ANILCA lands in general, but specifically on national preserves? Wildlife on federal lands should be managed under 

naturally functioning ecosystems, not as federal game farms? lt ls bad enough the state is managing wildlife on the 100 

million acres of state lands this way. (That is a third of Alaska!) Why should we give them the right to do this on federal 

lands~ and espedally on National Park administered lands? 

Mining is another issue. On the 100 million acres of State lands; miners have the right to mine almost anywhere, for a 

small fee and a small per, ounce royalty. I pay more to guide a small group of paddlers down a river on state land than a 

miner pays to tear up 40 acres of state !and. Mining has a priority over atl other uses. Unfortunately, things are even 

more lax on Federal land, at least those remaining under BLM control. Why would we consider making it easier for 

miners to have access to ANILCA designated lands? The reason ANILCA was passed was to protect some of Alaska's most 

precious wild lands from precisely these kinds of activities. 

And then there is oil & gas leasing. ANILCA lands were set aside precisely to stop these kinds of activities on at least 

some of the public domain. Why should we consider opening any of these lands back up to this kind of exploitation? The 

idea of ANILCA was that we would protect at least a representative example of some of our most valuable public lands. 

Please don't be fooled by some of our politicians and industry representatives. Alaska is a rfch state, Yes, we are having 

some financial problems right now. And yes1 we do need more oil in our pipefine, but there is plenty of oil, outside 

ANtLCA designated lands to supply our needs, Why shoujd we sacrifice our nation's "Crown Jewelsu to go on warming an 

already overheated planet? Why should Americans be asked to sacrifice when Alaskan politicians give giant billion dollar 

tax breaks to the oit companies? Why should America sacrifice our National areas when Alaskans don't even have an 

tncome tax, a state sales tax, and g-et more federal money back than they pay in federal income taxes? 

We Alaskans need to start pulling our own share. We are proud of our independent spirit and yet we feed at the public 

troff like no other state. We need to quit expecting the federal government to bail us out of our own problems. We need 

to do a better job of managing our own lands and wildlife, before trying to exploit our national treasures and wildlife. 

Some of the people testifying here today, want to remove some of these protections. Protections that ANILCA 

guaranteed. ANILCA is an amazing piece of legislation. It protected Alaskan's rights to keep doing things they have 

always done on the land.lndustry doesn't like that. They would like to have access to 100% of Alaska. They are not 

satisfied with having access to the vast majority of Alaska's land. They want access to all of it. Congress was right the first 

time when they passed ANILCA. Leave the law alone. It protects Alaskan's right as well as the national public's rights. 

Don't let industry get into these areas that the American public and many Alaskans want to be kept the way there are 

now. 

Thank you for this opportunity to submit my written testimony. I would like it included in the hearing record. 

Sincerely, Ron Yarnell 
20 

The Impacts of ANILCA (Alaska National interest Lands Conservation Act of 1980) Upon Alaska and 

Suggested Improvements 

Prepared for The US Senate Energy and Natural Resources Committee, Lisa Murkowski, Chair, 

submitted by jim Kowalsky for Alaskans FOR Wildlife, 

POBox 10640 Fairbanks, Alaska 99710 <jimkowalsky@yahoo.com> 

December 3, 2015 

This statement reflects the realities of wildlife and the impacts upon wildlife management ensuing 

within an AN!LCA-Aiaska world since enactment by Congress in 1980. 

RESULTING FEDERAL MANAGEMENT REPLACING FLAWED STATE MANAGEMNT 

Generally wildlife on AN!LCA wildlife refuges and national parks is or was to have been primarily the 

responsibility of the Alaska Board of Game. The ANILCA Title vm subsistence primity was to have 

existed in a single federal-state management paradigm with the state's own subsistence priority 

mirroring the ANILCA priority. However, the state's priority failed in a court test, resulting in a dual 

subsistence management, state on state lands, federal on federal lands. A system of Federal 

Subsistence Boards (FSB) then emerged to mirror the state game board's management but on 

federal lands, confining jurisdiction to matters of rural subsistence "harvest" only, not to managed socalled urban generated sport, trophy and trapping take. The FSB is not a creation of ANlLCA, not 

even mentioned in its legislative history nor as legislative intent; rather, it's a creation crafted when 

Alaska's state subsistence law failed. 

Turning to the Alaska Board of Game's role in managing "harvest" of game on federal ANILCA lands 

... primarily parks and refuges ... notwithstanding the legal mandates of of AN[LCA itself, also the 

managing agencies are mandated to provide stewardship under such as the National Park Service 

Organic Act of 1916; National Park Service Management Policies of 2006; Federal Land Policy and 

Management Act of 1976; National Wildlife Refuge System Administration Act of 1966 and others. 

ALASKAN OVER-REACH 

Through all of this the Alaska Board of Game (BOG) is to have management authority on ANILCA 

lands. However the BOG is losing such authority on AN!LCA lands through its reckless establishment 

of exaggerated bag limits and excessively long seasons. We. choose to term this BOG mismanagement 

as "Alaska Over-Reach." 

The N a tiona! Park Service has recently made permanent rules that disallow BOG wildlife "harvest" 

practices promulgated for park preserves which were unethical to the core. For example, such BOG 

rules had allowed shooting wolves at dens and in the spring when wolves likely would be having 

pups, in its national park preserves, using artificial light to take bears, baiting of grizzly bears ... thcse 

are just several examples of egregious, unethical, even barbaric practices that have been fostered by 

the Alaska BOG which we find unfortunate in the extreme. 

The Alaska (BOG) should not now, not ever, be allowed even near a process that had originally given 

them authority to regulate, given the extreme and unethical nature of their attempts to manage in 

ANILCA lands. Should a more balanced board that fairly represents the Alaskan public including the 

vast majority ofnon consumptive users ever materialize, then of course, such a future BOG might 

return to the management table, hopefully in a much changed atmosphere. [deally one of cooperation 

and to a combining of federal and state management agency resources and talent; to a supportive 

constituency, thus erasing the unfortunate state-federal turf wars that characterize this situation. 

ALASKANS DID THIS 

lt is important to understand, that all park and refuge lands, national recreation areas and wild and 

scenic rivers that were created by AN!LCA were proposals from Alaskans, drawn on living room 

floors and kitchen tables throughout the state. The provisions within the act similarly are the 

product of Alaskans citizens- myself included- striving to save representative intact ecosystems 

within it for posterity, Within this massive Alaskan conservation effort, the desire to permanently 
21 

preserve unparalleled habitat for Alaska's world famous wildlife legacy was paramount. Within this 

framework, Alaska ANILCA park preserves, parks, and wildlife refuges were never envisioned as the 

shooting gallery, which the Alaska BOG unabashedly promotes. 

It is also important to note, given the now-botched role of the BOG within ANILCA lands and 

elsewhere in Alaska, this BOG is made up entirely of hunters and trappers. Between 80 to 85% of 

Alaskans DO NOT- DO NOT hunt nor trap. These Alaskans are non-consumptive users of wildlife; 

they view and photograph, study and enjoy and experience our wildlife legacy as do those of a large 

tourist visitation, not as hunters or trappers. This vast majority of our Alaskan population are not 

represented or are actually badly misrepresented by a profoundly ethically challenged, exclusive 

wildlife management apparatus that has been hijacked by large consumptive wildlife interests such 

as Safari Clubs International, the NRA, Sportsman for Fish and Wildlife and other consumptive users. 

IZEMBECK NATIONAL WILDLIFE REFUGE 

Improvements to ANILCA-managed lands must include discussion of the Izembeck National Wildlife 

Refuge. This refuge has features unique to and critical for especially migrating waterfowl. Virtually 

the entire-that's ENTIRE-world's population of migrating Pacific Black Brant for example utilize 

this precise area in migration. A road is proposed right through this very habitat feature of the 

refuge and championed by madam subcommittee chair with no acknowledgement of the function 

and purpose this refuge serves. Without a word of the damage the proposed road right through the 

high value eelgrass would do. This eelgrass is not common in western Alaska and in this case it's rich 

and nourishing beyond alternative sources. The State of Alaska proposes to exchange other land for 

this road corridor. Be informed the proposed land exchange has no particular habitat value. Also, 

maintenance of the threatened habitat in question serves a US obligation of the Migratory Bird Treaty 

Act. 

Without any question, the ANLCA impact on our state has been high value, managing, serving and 

saving habitat and wildlife values in a world in which humans will overwhelm this planet, its wildlife 

habitat and its wildlife. The not-so-distant future value of our wildlife legacy and its lands to our state 

and to the world, its wildlife and its economy, are enormous and often understated. We look for 

enlightened management and a forward looking public and to Congress that hopefully somehow can 

get this message straight and absorb and reflect. ANILCA can be Alaska's future. 

This concludes our statement to this hearing. 

Thank you. 
22 

2015-2016 

Executive Officers 

chair colleen Stephens StanStephensGiacier&WildlifeAdventures 

Vice Chair Dennis McDonnell Alaska Coach Tours 

Treasurer/Finance Chair Charlie Ball Holland America/Princess~ Alaska 

Secretary/Membership Chair Bonnie Quill Mat-SuConvention&VisitorsBureau 

Government Relations Co-Chairs 

Bill Pedlar Knightly Tours 

JulieSaupe Visit Anchorage 

~---~ 

~ALASKA 

I Mi1MfiM++MIUI4fi+t4M 

ASSOClAT!ON 

November 30, 2015 

The Honorable lisa Murkowski, Chairman 

The Honorable Maria Cantwell, Ranking Member 

U.S. Senate Committee on Energy and Natural Resources 

304 Dirksen Senate Building 

Washington, DC 20510 

Marketing chair Re: Alaska National Interest lands Conservation Act Patti Mackey Ketchikan Visitors Bureau 

TourismPo!icy&PianningChair 

Deb Hickok Explore fairbanks 

Past chair Scott Habberstad 

AlaskaAirlirwcs 

President&CEO 

Sarah leonard AlaskaTravellndustryAssociation 

Dear Senator Murkowski and Senator Cantwell: 

The Alaska Travel Industry Association (ATIA) is Alaska's leading statewide nonprofit 

membership organization for the Alaska travel industry with over 700 members. Nearly 

two million visitors come to Alaska each year contributing over $3.8 billion in economic 

impact to the State. National Parks and other public lands are important and valuable 

destinations in many visitors' itineraries. The economic benefits are significant for the 

tourism businesses that operate in the parks and gateway communities. The Alaska 

National Interest lands Conservation Act (ANILCA) resulted in the formation of 80 million 

acres of public lands in Alaska and in coordination with the State of Alaska encourages 

Board of Directors appropriate tourism that provides visitor services while benefiting local economies. 

Adam Baldwin Anchorage Museum 

John Binkley CUA/Aiaska Cruise Association 

Brett Carlson 

Northern Alaska Tour Company 

Kory Eberhardt ATasteofA!askalodge 

Gideon Garcia C!RI Alaska Tourism Corporation 

Paul Goodwin f-lollandAmerica Line 

Peter Grunwaldt Premier Alaska Tours 

Elizabeth Hall John Ha!!'sAiaskaCruisesandTours 

Deb Hansen Pike's Waterfront lodge 

KirkHoessle Alaska Wildland Adventures 

Shanon Hamrick KenaiPeninsulaTourismMarketingCouncil 

Karen Harris AlaskaGardenGateB&BandCottages 

Thomas McAleer Alaska Denali Travel 

Tim McDonnell TemscoHelicopters,lnt, 

Dan Oberlatz Alaska Alpine Adventures, Inc. 

AT!A recognizes the importance of adequately funding federal public lands in Alaska. 

Increased funding ensures public lands will become more accessible to visitors, and not 

less, by ensuring land managers have the tools necessary to provide visitor services such 

as interpretation, trail maintenance and permit processing. 

Thank you for reviewing this important piece of legislation. 

Sincerely1 

Sarah leonard 

President & CEO 

cc: Governor Bill Walker 

AlaskaTravellndustryAssociation 
23 

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. 
24 

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. 
25 

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. 
26 

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 Depart-
27 

ment 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 
28 

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:] 
29 

ST.Al £ C!\P!TOL 

PO. Box! 10001 

juneau, AK 998 J ! -000! 

907-'165-3500 

fax: 907-465-3532 

Governor Bill Walker 

STATE OF ALASKA 

Testimony before the U.S. Senate 

Committee on Energy and Natural Resources 

The Alaska National Interest Lands Conservation Act 

December 3, 2015 

Submitted by: Governor Bill Walker, Alaska 

Testimony on behalf of: 

The State of Alaska 

I. Introduction 

5 SO Wes-t Seventh Aver\Ue, Suite I 700 

!Jx 907 ·269-7461 

W\N'J<I.Gov.Abska.Gov 

Governor@Aia~b.Gov 

Alaska is a place of superlatives. We are the largest state in the union; the only Arctic state; the 

northernmost) westernmost~ and easternmost stare. We make unique contributions to the nation's 

interests, and we are proud of those contributionl:\. 

I was seven years old when Alaska became a state :and achieved out dream of self-governance. The 

debate about whether the territory of Alaska should be granted entry into the union turned on one 

question: Could a State of Alaska have a viable, self.sustaining economy? 

The answer was yes -through de\reloptnent of our resources. Implicit in the Alaska Statehood 

Compact .is a directive to tlH~ State to develop its resmtrces. The Compact prohibits Alaska frotn 

selling our subsurface mineral rights. Development rights can be lease~ but ownership must stay 

with the State. The message &om Washington, DC) was cleat: we were to develop our resources to 

establish a viable economy and become self-supporting. 

Alaska has fulfilled our part of the bargain. We have developed out resources for the maximum 

benefit of the people, and with great care ro protect our environment. We have used out resource 

income to build roads and schools and to provide services the rest of the country takes for granted, 

:mch as running water and electricity. In recent years, we have been less reliant on federal aid than 

the majority of states. 

The Obama Administration has \\-1.sely embraced an "all-of-the-above" energy strategy. Renewable 

energy, energy efficiency, natural gas, and oil are all part of it. 

Alaska has a role to play in each of these areas: we arc a testbed for renewable energy and nllcrogrid 

technologies and a leader in energy efficiency technology and application. We ate working hard to 
30 

United States Senate Committee on Energy and Natural Resources 

Alaska National Interest Lands Conservation Act Testimony 

December 3, 2015 

Page 2 

develop our vast natural gas reserves. And we are committed to providing the nation with 

responsibly produced domestic oil. 

We have the supply. We have the infrasttucturc. We have the expertise and the know-how. We need 

the access. But we now have an 800-mile pipeline that is three-quarters empty, because we cannot 

get access to our resources. 

Responsible development of Alaska's oil is a win-win-win: It reduces our nation's dependence on 

unstable foreign regimes. It makes use of existing infrasttucture to minimize the footprint of new 

development. It helps Alaska remain independent and self-sufficient, reducing our reliance on 

federal support. 

In recent years, there is growing recognition that some things we thought were free are not 

necessarily so, such as clean air, fresh water, and the ability to absorb carbon dioxide. These are all 

things Alaska provides in abundance. For example: 

" 66 percent of all National Park land in the nation is in Alaska. 

" 86 percent of all Fish and Wildlife Service land is in Alaska. 

'" The nation's two largest national forests arc in Alaska. 

" Alaska's glaciers and waters hold an estimated 40 percent of the nation's surface water. 

" 63 percent of Alaska is federally owned. Outside of Alaska and 11 western states, the average 

is 4 percent federal land ownership. 

Alaska is making an outsize contribution to our national interests. This contribution should not 

come at the cost of our people and our future. 

The Alaska National Interest Lands Consetvation Act (ANILCA) promised a balance between 

conse1vation in the national interest and satisfaction of Alaska's economic and social needs. It is 

time to return to a better balance between the nation's and Alaska's interests. 

II. Overview 

In 1980, ANILC'\ added 100 million acres of federal conset-vation system units (CSUs) within the 

State by expanding existing units and creating new ones. The 200-plus page Act included numerous 

provisions intended to balance the nation's conservation interests with the economic and social 

needs of Alaska. The State has sttuggled to ensure the balancing provisions in ANILCA arc 

consistently recognized in the multitude of federal land management plans, policies, and regulations 

that impact vast areas of federal land in the state. 

This testimony identifies issues and offers suggestions for ensuring the balance promised in 

ANILCA is maintained as intended by Congress. 
31 

United States Senate Committee on Enerb'Y and Natnral Resources 

Alaska National Interest Lands Conservation Act Testimony 

December 3, 2015 

Page 3 

HI. Implementation of ANILCA's Balancing Provisions at Risk 

The purpose of ANILCA was to establish and maintain a balance between conservation and 

development of Alaska's lands. To that end, ANILCA protects Alaska's wilderness, scenic, and 

cultural values; preserves opportunities for rural Alaskans to maintain a subsistence way oflife; and 

provides for some forms of development to meet the economic and social needs of Alaskans. The 

final Act is often described as "compromise legislation." As such, successful implementation 

requires effective cooperative federal and state relationships. 

One challenge is that nationwide federal regulations and policies ate currently being applied in 

Alaska without regard for ANILCA's balancing provisions, and \1.1.thout adequate consideration of 

the consultation and cooperation requirements in ANIJ LA. The result is upsetting the balance 

between conservation and development that ANILCA sought to establish. 

Issues include: 

" federal.interpretation of ANILCA's consultation and cooperation prm1.sions has devolved 

from a meaningful exchange of information and ideas between federal and State agencies to 

unilateral notification and positional brieftngs by federal agencies . 

., Many federal land managers are unfamiliar with Alaska and ANILCA's unique provisions 

that moclify national management policies and practices. 

• federal agencies are implementing a multitude of new and revised national policies without 

taking ANILCA or Alaska's unique context into consideration. 

• Federal management planning efforts that affect Alaska include: 

o The Arctic National Wildlife Refuge plan revision that resulted in wilderness and 

wild and scenic river recommendations that block oil and gas explo.ration and 

development in the coastal plain, an area explicitly designated under J\NILCA for 

consideration of its oil development; 

o The Gates of the Arctic National Park and Preserve plan amendment that proposes 

to implement a national policy to manage lands that have \vildcmess characteristics 

as if they were designated as wilderness by Congress; and 

o Tongass and Chugach National Forest management plans currently undergoing 

revision ignore key provisions in ANILCA that prohibit new wilderness and wild and 

scenic river reviews in Alaska unless authorized by ANILCA or a further act of 

Congress. 
32 

United States Senate Committee on Energy and Natural Resources 

Alaska National Interest Lands Conservation Act Testimony 

December 3, 2015 

Page 4 

" The Bureau of Land Management is revising three large management plans. These planning 

areas already include conservation designations under ANILCA. Yet the plans propose large 

administrative designations and other actions that conflict with ANILCA's provisions for 

use and access and reduce the availability of multiple use land that was factored into 

ANILCA's balance. 

" ANILCA flowed from the Alaska Native Clain1s Settlement Act of 1971 and ensured access 

for traditional activities and subsistence use on federal lands. Over time, increasingly 

restrictive federal management has undermined this promise. 

• Public Land Orders stemming from the .Alaska Native Claims Settlement Act of 1971, many 

of which fulfilled their purpose when ANILCA designated over 100 million acres of 

conservation system units, remain in place. This further upsets the balance in ANILCA and 

interferes \vith the State's ability to complete its land selections under the Statehood Act. 

'" The federal land management agencies that manage ANILCA lands are each developing 

national policies that ignore tl1e ANILCA provisions prohibiting new wilderness and wild 

and scenic river reviews in Alaska unless authori?:ed by the Act or an act of Congress. The 

agencies are requiring agency-directed reviews and the application of protective measures 

until Congress takes action on any recommendations, or indefinitely, if no action is taken by 

Congress. In effect, the agencies are making new wilderness and \v:ild and scenic river 

designations in Alaska by managing lands as if tl1ey had been granted such status. 

" Despite ANILCA's assurances that the State's limited infrastructure and the needs of remote 

isolated communities would be appropriately considered, the Department of the Interior has 

repeatedly rejected three decades of impassioned but reasoned requests from the residents of 

King Cove for a one-lane gravel road across the Izembek National Wildlife Refuge to 

facilitate access to the all-weather airport at Cold Bay for emergency medical evacuations. 

V. Improving Implementation of ANILCA 

It is essential that the compromise provisions in ANILCA be recognized and considered in federal 

plans, policies, and regulations. Currently, depending on their experience and longevity in Alaska, 

federal employees have a mixed understanding of ANILCA, resulting in inconsistent interpretations 

of the law. 

Suggestions for an improved cooperative working relationship include: 

" Reinstitute the Alaska Land Usc Council (ALUC). The Council was in place for 10 years, 

from1980 to 1990. Its purpose was to facilitate cooperation and help resolve problems 

between the federal and State governments and Alaska Native corporations as ANILCI\ was 
33 

United States Senate Committee on Energy and Natural Resources 

Alaska National Interest Lands Conservation Act Testimony 

December 3, 2015 

Page 5 

implemented. Bringing back the Council could help to bridge the gaps in State and federal 

agency efforts to fulfill the responsibilities in ANILCA. 

" Provide comprehensive education on ANILCA to federal and State agency employees. The 

nonprofit Institute of the North provides training to federal and State employees, 

conservation groups, Native corporations, tribal representatives, and industry members. The 

program has been approved by the Department of the Interior. We reconunend this 

program or equivalent training become a mainstay or requirement for all federal employees 

involved in Alaska land management. 

V. Summary 

ANILCA promised a balance between conservation in the national interest and Alaska's economic 

and social needs, including consideration of access to federal onshore land for responsible oil 

development. Alaska is diligently working to develop its resources as directed by the Alaska 

Statehood Compact and in the interests of Alaskans and the nation. Failure to fulfill the promise of 

ANILCA is !inuring the State's ability to fulfill its potential. 

The federal government manages approximately 28 percent of the total land area of the nation, or 

more than 635 million acres. In Alaska, approximately 60 percent of the total land area of the state, 

over 224 million acres of land, is owned by the federal government and managed by four federal 

land management agencies: the National Park Service, U.S. Fish and Wildlife Service, Bureau of 

Land Management, and the U.S. Forest Service. 

The U.S. Fish and Wildlife Service manages approximately 76 million acres of land in Alaska, which 

comprises 86 percent of all lands managed by the agency nationwide. The National Park Service 

manages approximately 52 million acres of land in Alaska, or 66 percent of all lands managed by the 

agency nationwide. Hence, broad nationwide land management policies disproportionately impact 

Alaska. 

It is therefore essential that the balancing provisions in ANILCA be recot,>nized and considered in 

federal plans, policies, and regulations, including consideration of the conditions and uses that are 

unique to Alaska. Educational opportunities and meaningful consultation are also essential elements 

in ensuring the successful implementation of ANILCA. 
34 
35 

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. 
36 

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:] 
37 

TESTIMONY BEFORE THE U.S. SENATE COMMITTEE ON ENERGY AND NATURAL RESOURCES 

HEARING ON THE ALASKA NATIONAL INTEREST LANDS CONSERVATION AcT 

December 3, 2015 

Testimony on behalf of the 

Citizens' Advisory Commission on Federal Areas 

Submitted by Senator Jolm Coghill, Cotrunissioner 

I. Introduction 

In 1981, the Citizens Advisory Commission on Federal Areas in Alaska (CACFA; Commission) was 

established by the Alaska State Legislature to monitor and minimize the impacts to Alaska and Alaskans from 

implementation of the Alaska National Interest Lands Conservation Act (ANILCA). The Commission 

continues to provide a fonun and a voice to those most intimately impacted by the complex mandates and 

highly discretionary laws, regulations and policies applicable to over 225 million acres of federal land. 

CACFA primarily works with individual Alaskans in navigating these mles and policies to safeguard and 

preserve their rights and interests. The Commission provides a consistent, diverse and updated memory of 

public engagement with federal agencies in Alaska since ANILCA. Our 12 commissioners and staff work 

diligently to address the ongoing need to assist and infonn the public of federal actions. to examine and 

comment on tl10sc actions to prevent undue encroachment on public uses and to apply and add to our detailed 

historical understanding of how ANJLCA's many compromises are actually experienced by the public. 

ANlLCA was conceived through a clause in the 1971 Alaska Native Claims Settlement Act (ANCSA), 

Section 17(d)(2), which directed the Secretary of the Interior to withdraw up to 80 million acres of existing 

public lands in Alaska for consideration by Congress as new or expanded National Wildlife Refuges, National 

Parks, National Forests and/or Wild and Scenic Rivers. What took place between the passage of ANCSA in 

December 1971 and the passage of ANILCA in December 1980 was truly extraordinary. The consideration 

of these designations, along with the effect on subsistence uses, resource development, economic growth, 

transportation and infrastmcturc, hunting, fishing and trapping, and Alaskan traditions, cultures and lifestyles, 

was rigorously studied and heavily debated. Various coalitions, stakeholders, industries and interest groups 

descended on the ''d2 debates" to lobby for favored provisions and conservation areas. Congress held 

extensive field hearings throughout Alaska to take testimony and gain insight into the ''Alaska context.·· TI1c 

resulting statute was a hard-fought, comprehensive and highly nuanced culmination of these efforts, which 

fundamentally changed the way the federal government manages its public lands. 

Congress began its review of Alaska lands by looking at the roughly 250 million acres of general public lands 

that had been withdrmm from other uses and carefully considered which of those acres should be set aside as 

conservation system units and under what tenus, balancing the national interest with the economic and social 

needs of Alaska and its citizens. Even though most oftl1e land classifications used were familiar ones (e.g., 

parks, refuges, forests, wildemcss, wild and scenic rivers), ANILCA made them new again, with management 

direction intended to be unique to Alaska. And, even though the federal land management agencies had long 

histories and pre-existing authorities, ANILCA served as an "organic act" for just how these enormous areas 

would be managed. Specific provisions addressed critical deviations from current laws and management 

objectives, \Yhilc more general provisions expressed Congressional intent on how future management would 

be tempered by this unprecedented balancing act. 

CACF A Testimony i Page 1 of 15 
38 

Especially considering the enonnity of what was accomplished here 35 years ago, and no doubt thanks to the 

intense studies, negotiations and deliberation which preceded it, ANILCA has truly withstood the test of time. 

That said, this "great compromise., between the many participants has been greatly compromised in many 

ways. Capturing 35 years in one IYritten testimony is as impossible a task as it is inadvisable. Thus, what 

follows here are brief overviews and targeted insights into four major implementation challenges, each of 

which ANlLCA sought to avoid: 

the demise of meaningful federal-state cooperation and consultation: 

the undcm1ining and loss of substantive balancing provisions: 

the corruption of Congressional intent through agency and judicial misinterpretations: and, 

the disproportionate impact of increasingly centralized and prohibitive management practices. 

II. Building and Maintaining Cooperative Working Relationships 

ANILCA oversaw the thomy marriage of multiple competing interests, and Congress recognized early on 

that, sometimes, meaningful cooperative engagement should be a requirement. Further, due to the sheer size 

of designations, over thriving commtmities and interlaced with private, Native and state lands, federal land 

management would impact Alaska in novel and severe ways. As such, Congress provided for affected user 

involvement and interagency cooperation as absolutely critical to realizing the true promise of ANILCA. 

A number of provisions require federal agencies to work with the State, including in the development of land 

use plans and through consultation with the Alaska Department of Fish & Game regarding fish and wildlife. 

Strong direction for ccordination is found in Title XII, which established the Alaska Land Use Council, the 

Federal Coordination Committee, and directed cooperative land management planning in Bristol Bay. 

Individuals and groups have also benefited from these provisions, as well as from the vigilance and longevity 

of CACF A, the State· s ANlLCA Implementation Program and numerous other entities devoted to agency 

collaboration and public participation, either established by ANILCA or in response to its sweeping effect. 

Unfortunately, many cooperative mechanisms have either been dissolved or completely disenfranchised. Less 

formal arrangements have also become strained recently, as administrative policies and goals fail to account 

for the unique Alaska context. While Alaska-based federal agency staff are approachable, helpfiJl and 

invested in sound management, a multitude of considerations, positions, personalities and variables frequently 

keep us from working together to resolve issues outside of established venues and mandates. The following 

recommendations aim to promote a rctum to meaningfi1l cooperation and its inimitable and ample benefits. 

Alaska Land Use Council 

The concept of a cooperative interagency body was 

initially recommended by ANCSA's Joint FederalState Land Usc Planning Commission and was 

included as part of a "consensus" bill following the 

introduction ofH.R. 39. Developed by Alaska 

Govcmor Jay Hammond, Representative Don 

Young and Senator Ted Stevens, the bill created a 

''lands commission., to foster cooperation and 

coordination between Alaska's land and resource 

managers. This concept made it through many 

Congressional debates and into the final bill as 

Section 120 l, establishing the Alaska Land Use 

Council (ALUC), its membership and its fimctions. 

C ACF A Testimony I Page 2 of 15 
39 

The ALUC provided an opporttmity for in-person consultation, cooperation and coordination among 

high-level Alaskan decision-makers contemplating the management of federal lands and public uses. 

Membership included the heads of six federal agencies, four state agencies and two representatives 

from the Alaska Native community. The council was co-chaired by a Presidential appointee and 

either the Govemor of Alaska or his delegate. 

For ten years, the ALUC sought balanced consideration of ANILCA implementation issues by 

bringing federal, state and Native leadership to the table to oversee and collaborate on both discrete 

and broad matters. In 1989, pursuant to ANILCA Section 1201(1), the council submitted a report to 

Congress recommending the ALUC continue operating with certain changes and improvements, 

based on experiences during the preceding decade. A survey attached to the 1201(1) report found that 

over 80% of respondents and organizations were in favor of a cooperative interagency organization 

that dealt with Alaska land and resource issues. Unfortunately, the report's recommendations were 

not aetcd upon by Congress, and the council sunsetted in 1990. 

Many of the ALUC's most significant fi.mctions arc sorely missed and could be central to improving 

federal-state-public relations in land and resource management in Alaska. Those fi.mctions include 

fostering cooperative and consistent management and planning, improving agency responsiveness to 

public input and concerns, resolving interagency and interest group conflicts, providing for 

infonnation exchange and dialogue, maintaining and promoting the unique Alaska context, and 

furthering economic growth and prosperity through infonned and respectful deliberation. 

CACF A strongly encourages this Committee to explore reinstatement of the ALUC, or a similarly 

constituted and empowered entity, taking into consideration the insights and recommendations that 

were made in the councirs 1989 report. The Land Use Advisors Committee was also an important 

compliment to the ALUC, as the private citizens on that committee regularly gave the career 

bureaucrats on the council some much needed perspective. CACFA and the committee actually 

shared a member for most of the time it operated, and several joint meetings were held. We would 

welcome the opportunity to realize the exceptional benefits of that collaboration once again. 

ANILCA Guidance 

Congress incorporated signiftcant direction throughout ANILCA to preserve the unique Alaska 

context in management planning and decision-making on federal lands. Through the simple passage 

of time, due to staffing turnover and with the increasing abundance, complexity and overlay of 

national laws, regulations and policies, this direction has been forgotten and/or incrementally 

disregarded. One has only to compare regulations and land use plans put forth today with those from 

the 1980s, when meaningful cooperative mechanisms were functioning and the distinction of 

ANlLCA and its special provisions were consistently acknowledged and fresh in everyone's minds. 

Before we find ourselves even fi.trther removed from a contemporaneous understanding of ANILCA, 

before even more mles and policies are developed lacking any reference to or accommodation of 

ANlLCA, and before the rest of our most experienced state and federal staff members retire or leave 

Alaska, we need to recognize and replace what has been lost and provide for the future. 

CACF A encourages this Committee to direct federal agency staff and otl1er upper-level Directors and 

policy makers with responsibilities that affect la11d mm1agcment in Alaska to attend comprehensive 

ANILCA training: Department of the Interior-approved training is currently provided in Alaska by 

Institute of the North. CACFA further requests the Committee strongly encourage federal agencies to 

work with the State and the public in crafting regional guidance that implements ANlLCA and, at a 

minimum: incorporates the unique Alaska context that is missing in national policies and regulations; 

applies statewide and to all federal planning processes; identifies all applicable ANILCA provisions 

and associated regulations (e.g., closure processes, access authorizations); and, provides consistent 

interpretations of those provisions for planning purposes and plan implementation. 

CACF A Testimony I Page 3 of 15 
40 

III. Trending Away From the Balance 

ANILCA has survived five federal administrations and 18 sessions of Congress and, while it has been 

frequently amended, it is largely intact and little the worse for wear. However, its compromise provisions 

have suffered heavy losses along the way. Most of the guarantees and influence Alaskans started out with 

have been depreciated or summarily annexed. It would be one thing to say our current situation is simply one 

full arc of a political pendulum, and that we have but to weather the passing stonn to pick up the pieces. 

Unfortunately. far too many intmsions and unwarranted, unilateral decisions have accumulated over the years 

and forrn a barrier to ever fully rebuilding and restoring tl1e balance Congress intended in ANILCA (absent 

costly. uncertain and time-consuming litigation). 

To understand where AN!LCA · s balance rests today, and to contemplate how it might be restored. it is 

important to understm1d its foundational principles and how it cmne into being. In October 1978, Congress 

adjourned without passing legislation or extending ANCSA's December deadline for the terrnination of any 

undcsignated withdrawals. Sensing a need to push tl1e issue along, on November 16, 1978, Secretary of the 

Interior Cecil Andms used his then brand-new ''emergency withdrawal" authority under Section 204(c) of the 

Federal Land Policy aud Management Act (FLPMA) to withdraw II 0,750,000 acres in Alaska from mineral 

entry and selection for three years. Days later, on December I, 1978, President Jimmy Carter used his 

executive authority under Section 2 of the Antiquities Act to set aside 56 million acres into 17 new national 

monuments. Additional threats to usc (and the subsequentl980 usc of) FLPMA 's autl10rity to withdra" 

millions of acres for up to twenty years served as an incentive to draw everyone to the table to finalize a bill 

that would settle Alaska's lm1d management issues once and for alL 

Unnerved by this unprecedented "land freeze," and 

recognizing the importance of a consolidated 

Alaskan voice, Govcmor Hammond and the Alaska 

Legislature worked with a wide array of constituent 

groups to agree on certain essentials, described as 

'~consensus points~~~ to ensure our needs \Verc met. 

The Alaska Federation of Natives m1d ANCSA 

Corporations joined the State in developing and 

tl1cn promoting these consensus points during the 

final negotiations "·ith Congress. 

All of the consensus points were addressed with the 

passage of ANILCA, yet all have since experienced 

varying degrees of erosion. Some are just barely 

recognizable, most have been interpreted away and 

none arc given deference anymore. The following 

subsections offer just a few exmnplcs of how these 

concessions are sidelined or disregarded. 

Land Use Withdrawals 

THE SEVEN "CONSENSUS POINTS" 

Based on Legislative Resolve "2from the 

1979 Alaska State Legislature 

I) Revoke all 1978 monuments and executive 

withdrawals 

2) Grant and satisfy full land entitlements to the 

Stale and Native Corporations 

3) Guarantee access across federal lands to state and 

private lands 

4) State management of fish and gmne on all lands 

5) Conservation boundaries should exclude 

economically important natural resources 

6) Continue traditional land uses on all lands 

7) Preclude any administrative additions or 

expansions of conservation units 

The 1970s-era Public Land Orders (PLOs) that withdrew lauds in order to implement ANCSA aud 

ANILCA are still in place, despite having fult1llcd their purpose. and have significantly interfered 

with the State· s ability to complete its laud selections, as guaranteed in the Alaska Statehood Act. 

These so-called "17(d)(l) withdrawals" are enonnous in scope, covering almost 160 million acres of 

federal lm1ds in Alaska, aud frequently have several layers of withdrawals over the san1c acre of lm1d. 

Certain concessions have allowed withdrawn lands to be selected by the State and ANCSA 

Corporations, but the lands cannot be conveyed until the withdrawals are lifted, during which time 

multiple public uses oftl1c land arc also prohibited according to the extent ofthe applicable PLO(s). 

CACFA Testimony Page 4 of 15 
41 

The Bureau of Land Management (BLM) addressed this complex issue in a 2006 report to Congress, 

tellingly required by Section 207 of the Alaska Land Tnmsfer Acceleration Act of2004. TI1e statute 

required the BLM to report to Congress on which of these withdrawals should be lifted. In its report, 

the BLM referred to the withdrawals as "an unnecessary encumbrance" and recommended lifting 

95% of them as ''consistent with the protection of the public's interest." Withdrawals on just over 6.7 

million acres \vere recommended for retention only "until another withdrawal is put into place." 

To put an even finer point on the need to lift 17(d)(l) withdrawals, recent federal agency planning 

efforts have attempted to retain and "repurpose" these withdrawals. Mm1agement plans seeking to 

limit public uses for a111biguous conservation purposes are using the outdated withdrawals to do so, 

circumventing Congress' prohibition on administrative withdrawals in ANILCA, negating Congress' 

intent provided through Section 207 of the Alaska Land Transfer Acceleration Act and fi.Jrther 

fmstrating the ability of the State to receive its lands and the public's ability to use them. 

For cxa111ple, most 17(d)(\) withdrawals prohibit mineral entry, to prevent encumbrances on the land 

during selection, conveyance and/or designation. If a draft land use pla11 wants to limit mineral entry, 

which is primarily being done to protect wilderness character or sensitive habitats, an existing 

17(d)(l) withdrawal is used to implement that requirement. In actuality, a new withdrawal wotJld 

need to be imposed, because the use is only coincidentally withdrawn under the outdated 17(d)( I) 

withdrawal. A withdrawal a11d its intended purpose arc not severable, meaning a new withdrawal is 

required when an area is closed to entry for a different purpose. In accordance with Section 1326(a) 

of ANILCA, new withdrawals of a certain size must be presented to Congress for approval. 

CACFA recommends this Committee request the Secretary of the Interior to implement the 2006 

report's recommendation to lift these comprehensive and obsolete 17(d)(l) withdrawals. Previous 

federal resource management plans have reviewed and recommended lifting them, a11d the Alaska 

State Legislature passed a resolution in 2015 formally making the smne recommendation. To our 

knowledge, the Secretary has taken no action on these recommendations. The BLM Alaska State 

Office should be directed to work through the national office a11d the BLM Director to complete the 

process of lifting these withdrawals consistent with Congressional intent for federal bud management 

in Alaska a11d to facilitate the final and long overdue resolution of the State's land entitlements. 

Administrative Designations 

Consistent with the seventh Consensus Points (preclude administrative additions or expansions of 

conservation units), which was a direct reaction to the sweeping Executive withdrawals in 1978, 

ANILCA required a Congressional decision in addition to the administrative decision that a large 

scale withdrawal is warranted in Alaska, or that conservation system units, including wilderness areas 

and wild and scenic rivers, should be expm1ded or established. 

Section I 0 I (d) provides an overall intent statement, noting Congress believed it had thought through 

the conservation versus development balance comprehensively and had arrived at a fair solution 

regarding the disposition of federal lands in Alaska which would not need to be revisited. Congress 

further clarified in Section 1326(a) that a11y Executive Branch action which withdraws more tha11 

5000 acres in Alaska \vould require notification to both Houses of Congress before any such 

withdrawal would become effective, and that the withdrawal terminates unless Congress passes a 

joint resolution of approval within one year of that notification. 

Additionally, Section 1317 provided a one-time authorization for the U.S. Fish and Wildlife Service 

(FWS) and the National Park Service (NPS) to conduct wilderness reviews under the Wilderness Act. 

Those reviews were done in the 1980s during development of the first management plans for refuges 

and parks in Alaska. No action was taken on the recommendations that stemmed from these reviews. 

Even so, studied and recommended lands are still being managed by these agencies to protect 

CACF A Testimony I Page 5 of 15 
42 

wilderness character and, despite intentional prohibitions in Sections 1317 and 1326(b ), the agencies 

continue to evaluate and recommend additional areas for potential designation as wilderness. 

Only in Section 1320 was one agency, the BLM, allowed to identify areas in Alaska suitable for 

designation as wilderness, and to make recommendations '·from time to time."' Section 1320 also 

specifically exempted any application ofFLPMA Section 603, including the direction to manage 

recommended lands to the ''non-impairn1cnt" standard while awaiting Congressional action. l11is 

means, should the BLM go through the study and recommendation process, there would be no 

discernablc impact or changes to land management while Congress debated the merits. 

However, while no Secretary of the Interior since 1980 has chosen to exercise its Section 1320 

wilderness study authority in Alaska, the BLM has instead been studying lands for '·wildemess 

character"' and effectively managing them to a "non-impairment" standard, refusing to acknowledge 

the very purpose of Section 1320 and its sidebars. As described earlier, this and other conservationoriented management objectives arc frequently facilitated ilirongh ilie "'rcpurposing" of 17(d)(l) 

wiilidrawals, resulting in a patchwork of de facto designations that can be managed even more 

restrictively than conservation system units established by ANTLCA. 

The self-administered authority federal agencies have assumed to make decisions regarding expanded 

and additional designations has significantly upset the careful balance Congress created in ANILCA 

and results in untenable embargos on planning for public land use and economic investments in 

Alaska. l11c following examples highlight two relatively recent and creative work-arounds which 

undermine Congress' intent to boili reserve designation decisions for itself and to govern ilie process 

associated with making wilderness recommendations. 

BLM Areas of Critical Environmental Concern 

Through designation of Areas of Critical Environmental Concern (ACEC), a BLM management tool 

established under FLPMA, public use, access and resource development in Alaska can be curtailed, 

prohibited or held hostage ilirough application of agency policy, developed and maintained without a 

public process, Congressional oversight or any means of accountability. Thanks in large part to the 

repurposing of obsolete 17(d)(J) witl1drawals, ACECs can easily be managed more restrictively than 

conservation system units established under ANILCA, including wilderness. If Congress refused to 

grant any agency the authority to establish conservation system units, witnessing agencies claim an 

authority to establish even more restrictive designations is as incredible as it is frustrating. 

Moreover, CACFA believes the use of ACECs in Alaska is also operating well beyond Congressional 

intent in FLPMA. l11e application of policy-based, wholly internal designation criteria has been 

highly subjective and scantily justified, particularly in light of the resulting decreased availability of 

enormous areas of public lands and the BLM's mandate to manage lands for multiple and nonconflicting uses. The criteria used to designate ACECs make no provision to incorporate or demand 

sound science or a detailed and thorough explanation of need. l11is unilateral and overly employed 

approach to land usc designation ignores the ecological, social and legal context in Alaska, and is 

strongly reminiscent ofilie "land freezes" which prompted Congress to require significant restraint. 

Further, most if not all user limitations proposed in ACECs could be addressed ilirough BLM's 

existing management tools and frameworks: therefore, ilie BLM frequently fails to credibly assert any 

"harmfitl ejjects" requiring "special management attention" in its proposals, both of which arc 

required under the ACEC policy. For exan1ple, significant capacity to mitigate concerns is housed in 

BLM's pcnnitting and leasing authorities. Exploration and development can be managed through 

terms, conditions and stipulations in a pennit or lease or any of a number of standing requirements, 

including operations plan approvals, reclamation and bonding. 

CACF A Testimony I Page 6 of 15 
43 

CACF A acknowledges some user limitations do require designation, but such management 

prescriptions should accompany at least some targeted management necessity, and be limited by it. 

BLM policy provides that the "size of a proposed ACEC shall be as necessary to protect . .. the 

important and relevant values within the context ()[the set of management prescriptions/or public 

lands in the vicinity.'' Thus, if designation is necessary to protect resource values or provide for 

certain activities, the ACEC should be limited to the areas where those values arc present or to the 

places where and times in which those activities occur. Yet, ACECs in Alaska can be hundreds of 

thousands to over a million acres in size, frozen in place through a designation process lacking any 

meaningful consideration of scale or scope. 

BIM Land~ with Wilderness Character 

While the identification of areas suitable for wilderness designation is consistent with ANILCA 

Section 1320, this option has never been exercised, largely in deference to the protracted and sensitive 

negotiations involving all interest groups which led to a balanced amount of designated wilderness in 

Alaska. CACFA would like to see this entirely warranted forbearance continue. Alaskans lived 

through the tumult and controversy of ANILCA and should not have to relive that experience and 

uncertainty with every resource management process. And yet, such a scenario would be preferable 

to what has been taking place the last few years. 

In 2010, then-Secretary Salazar issued Secretarial Order 3310, directing the BLM to identify and 

designate "Wild Lands." Congress subsequently passed a Continuing Resolution prohibiting the 

BLM from spending fi.mds to implement the order. Rather than rescinding the order, however, the 

agency just revised its implementing manuals to identify and protect "lands with wilderness 

character" instead of designating "Wild Lands." Since then, planning processes have been used to 

identifY these areas, which has included up to 99% ofBLM-managed lands in each plam1ing area. 

Because these lands arc not designated wilderness, none of ANILCA 's numerous provisions which 

would apply in wilderness (e.g., access provisions, cabins, temporary structures, the transportation 

and utility system process) are being honored. Conversely, restrictive Wilderness Act-style 

provisions (e.g., prohibitions on roads, stmctures, commercial uses, mineral entry) are proposed. No 

general or case-by-ease analysis is perfonned to reasonably evaluate whether detrimental impacts to 

wilderness character will manifest if a use is authorized or allowed to continue. These blanket 

prohibitions on uses and infrastmcture, simply owing to the decision to manage for wilderness 

character, is inconsistent with the BLM's mandate to provide for multiple usc and sustained yield on 

the federal public lands. More than that, it contaminates the balance ANILCA created for Alaska. 

CACFA acknowledges the goal of identifying and providing for the adequate protection of wilderness 

values in BLM planning documents. Timt said, where a planning process finds 99% of the planning 

area possesses wilderness character, this should be an indication current management is more than 

adequate. CACFA requests the Committee direct the BLM to exempt Alaska from its ''lands with 

wilderness character" policy (and any other policy with a different name but a similar intent) or 

prevent funding implementation in Alaska, in order to defend and restore the protections and balance 

Congress provided in ANILCA. 

Access, Traditions and Opportunities 

The State's third consensus point requested guarantees for access to the millions of acres of state and 

private lands interwoven with federal lands throughout the state. The fifth and sixth consensus points 

sought to preserve economic opportunities in resource-rich areas and to ensure continuation of 

Alaska's diverse culture and traditions, which are intimately connected to the land. Each consensus 

point represented a m'ljor concern associated with the enormous, unprecedented size of potential 

conservation system units being designated in inhabited, culturally significant and economically 

valuable areas, as well as the largely prohibitive management regimes employed by the intended 

CACF A Testimony I Page 7 of 15 
44 

federal land managers. To address these concerns in ANILCA, Congress included multiple access 

provisions, granting the strongest access guarantees and protections to landowners within or 

effectively surrounded by conservation system units. 

ANILCA was designed to ensure that transportation and utility infrastructure projects would not be 

thwarted or frustrated simply because they must cross federal conservation lands. Title XI recognized 

Alaska's transportation and utility network as largely undeveloped and established a process through 

which federal agencies must coordinate the review of Alaskan infrastructure projects that needed to 

cross federal land. Section Ill O(a) specifically provides for both motorized and non-motorized 

access on federal land for traditional activities and for travel to and from villages and homesites. 

Section IIIO(b) guaranteed adequate and feasible access for economic and other purposes to both 

surface and subsurface inholdings. Section !Ill grants the State and private property owners' access 

to their lands for purposes of survey, geophysical, exploratory, or other temporary uses. Since 

ANILCA 's passage, however, each provision has been increasingly compromised and ignored. 

For exan1ple, subsistence access under Section 811 and general access under Section I II O(a) arc 

being unduly restricted in furtherance of national policies that preemptively protect unit values, 

including wilderness, sounds capes and scenery. The historical interpretation of Section Ill O(a) is 

that the usc must be allowed until there is actual or likely potential for resource damage. Internal 

policy and guidance have been creating expansive values and nebulous degradation standards which 

render Congressionally-guaranteed protections under these sections meaningless. Federal agencies 

arc also increasingly micromanaging commercially guided uses (another Congressionally-protected 

usc) as an alternative means to limit general public access outside the confines of ANILCA, such as 

severely limiting public access by air taxis. 

The Title XI infrastructure development process is also being fundamentally mismanaged by federal 

agencies. Since regulations implementing Title XI require preferences for applicant-selected routes, 

agencies have been requiring proponents to modifY projects during tllC pre-application phase, or even 

strong-anning them into forgoing the process altogether, denying them ANlLCA protections and their 

appeal rights under the law. Title XI also established statutory time periods for review processes, 

which arc rarely, if ever, followed. Unsubstantiated barriers to the process arc visited on those 

seeking resource development opportunities, energy transmission, telecommunications upgrades, 

monitoring stations, hardened trails and even small driveways. This mismanagement means rural 

villages with real infrastructure needs -such as Angoon, which needs a new airport and is not on the 

road system- are faced Yliith insurn10untablc bureaucratic roadblocks. 

National regulations and policies frequently fail to make even the most cursory mention of the hardwon, critical access provisions in ANILCA. Even regulations which initially recognized these 

provisions are being arbitrarily amended to exclude them. For exan1ple, the NPS recently proposed 

changes to existing regulations to make them apply to "all operators conducting non:lederai oil or 

gas operations on land~ or waters within an NPS unit, regardless ol the ownership orjurisdictional 

status oj"those lands or waters." The proposed mlc includes a procedure for bringing previously 

exempt (i.e., Alaskan) operations into compliance. We understand the FWS plans to similarly amend 

its regulations regarding non-federal oil and gas development within wildlife refuges, which could 

easily and instantaneously destroy the economic value of many state and private inholdings, including 

lands granted to Alaska Natives under ANCSA. 

At a bare minimum, Alaska sought from Congress, and obtained in ANlLCA, the right to connect 

communities by road, air and sea; but, any capacity to provide for this infrastmcturc has been blocked 

by unapologetic indifference infused into federal agency regulations, policies, practices and culture. 

Forced inflexibility and bottlenccking further hinders our ability to invite economic investment, to 

explore and develop our resources and provide for a sustainable future. At this time, it is hard to sec 

what guarantees, if any, Alaskans managed to secure in 1980 to accommodate and provide for our 

nascent infrastmcture, resource economy, lifestyles, livelihoods and overwhelming access needs. 

CACFA Testimony I Page 8 of 15 
45 

State Management of Fish and Game 

Full realization of this fourth consensus point (state management offish and game on all lands) has 

been an ongoing challenge with mixed success and failure, but is currently experiencing significant 

setbacks. Early on, under ANILCA 's special provisions for state management and inclusion as a true 

partner in federal decision-making processes. many successes were realized. Primarily facilitated by 

decades of operation under a comprehensive Memorandum of Understanding, close communication 

and cooperation was the rule. It is currently the rare exception. 

In ANILCA, Congress required consultation with the Alaska Department of Fish and Game on fish 

and gan1e matters; however, compliance with this mandate has become entirely superficial. The 

increasing trend by federal land managers has been to "notify" or provide "positional briefings" to 

state managers in lieu of meaningful dialogue or efforts to resolve differences. Essentially, a box gets 

checked to ensure that the letter of the law is met, but not the intent. For instance, the State has been 

granted no sufficient opportunities to influence or participate in recent and pending federal 

regulations targeting the methods and means of take in Alaska. These value-based regulations will 

severely undercut the State· s ability to manage fish and wildlife in Alaska, as well as eliminate longstanding opportunities for public participation, destabilize viable subsistence opportunities, and cause 

disastrous and unsalvageablc damage to our presently healthy wildlife populations, biological 

diversity of species and the security and welfare of Alaska residents \Yho rely on wild foods. 

One of these regulations packages was finalized by the NPS in October (effective January I, 2016) to 

prohibit certain state-authorized hunting and trapping practices on national preserves and will require 

tlte management of wildlife for tmdefined natural ecological processes tltat may leave little or no 

harvcstablc surplus for humans, including purportedly exempt federally qualified subsistence users. 

Some hunting practices now prohibited were in place for decades without objection by the NPS, 

while others were adopted in the past decade at the request of subsistence users to reasonably 

recognize traditional practices. Titesc now-prohibited state regulations were developed consistent 

with the evolving and scientific nature of regulated hunting, necessary to respond to new knowledge, 

technologies, interests and wildlife population research by the states. Wildlife in Alaska is 

maintained by the State under the sustained yield principle enshrined in the Alaska Constitution, a 

concept that has successfitlly rebuilt many of tlte significantly degraded fish and wildlife populations 

the State was finally able to manage through statehood. 

In addition, the NPS eliminated certain hearings in areas affected by proposed regulations- a 

requirement under AN ILCA in favor of simply holding meetings near the affected park unit in 

certain situations. Given the vast size of parks in Alaska, this has the very real likelihood of 

significantly disenfranchising those with the most at stake to serve some administrative convenience 

far from the impacted area. The regulations also codify the NPS's interpretation of "consultation" 

with the State, which will now mean simply advising the State of its decisions prior to or just after 

taking any action. lltc FWS is preparing to adopt similar rules and is expected to publish its notice of 

rulemaking in the coming weeks. 

Most notably, when considering how far the NPS has deviated from ANILCA 's direction for open 

coordination and cooperation, these regulations will now allow individual park superintendents to 

simply publish a notice online each year preempting any state wildlife laws and regulations they feel 

are inconsistent witl1 broad park policies and values. This notice will not be subject to public 

comment, meetings or mlemaking, and the listed state regulations will be retroactively prohibited and 

can be extended indefinitely, raising significant due process concems. 

Through these rulemaking efforts, botl1 the NPS and the FWS arc unilaterally codifying troubling 

intemal policy directives regarding how fish and wildlife populations are to be managed. The 

agencies will now require that fish and wildlife be managed for undefined "natural ecological 

CACF A Testimony I Page 9 of 15 
46 

processes'' (parklands) and to ''maintain natural functioning ecosystems'' (refuges). Basic application 

of either of these edicts would require eliminating all human interference, including for hunting, 

fishing, conservation and science. Assurances have been provided that this is not the intent, but it 

opens a bam door for polarizing anti-consumptive usc groups to litigate and force implementation to 

the most extreme ends of these concepts. CACFA has little doubt this litigation will occur, and soon, 

nullifYing the remaining vestiges of these hard-won compromises and guarantees in ANILCA. 

The states are responsible for the conservation and sustainability of fish, wildlife and water having 

entered the uuion on equal footing. That responsibility can only be diminished by specific acts of 

Congress, such as in the Migratory Bird Treaty Act, Marine Mammal Protection Act, and Bald Eagle 

Protection Act. AN lLCA only diminishes Alaska's authority by authorizing federal regulation of 

harvests for subsistence by rural residents on federal land. Congress specifically stated ANILCA 

does not diminish the State's ongoing conservation and harvest programs for subsistence and other 

purposes, except where Congress prohibited it. In contrast. federal agencies arc attempting to 

overrule state programs and harvest authorities based on recent agency interpretations of policy and 

values, neither of which can trump the law or the will of Congress. These rulcmakings should be 

stopped immediately. 

CACFA recommends this Committee engage in meaningful oversight of the systematic elimination of 

state management authorities regarding fish and wildlife, an established and long-respected province 

of the m~my states. TI1is is not just an Alaskan issue but one that will affect all states where hunting is 

currently allowed in refuges and parklands. For Alaska, in particular, CACFA recommends specific 

language be incorporated in pending appropriation legislation to prohibit any funds from being used 

to implement, administer or enforce the final regulations on Hunting aud Trapping on National 

Preserves in Alaska (80 FED. REG. 64325, October 23, 20 15) or to finalize the pending proposed 

regulations on Non-Subsistence Take of Wildlife and Public Participation aud Closure Procedures on 

National Wildlife Refuges in Alaska. CACFA views this as an essential action needed to halt the 

unlawful preemption of the states' authority to mauage fish aud wildlife within their borders. 

IV. Entrenched and Pernicious Interpretations of Statutory Text 

While it is fmstrating to encounter and be forced to repeatedly challenge inaccurate and harmful agency 

interpretations of federal law, it is ncar impossible once those interpretations arc remotely sanctioned by 

highly deferential judicial review. The following sections explore two recent examples of disputes where two 

of ANILCA 's most cherished "no more" clauses were effectively nullified by the courts. Since agencies must 

adhere to binding j udgcmcnts, even when prior interpretations arc later understood to be erroneous, a 

legislative fix is the simplest aud possibly the only remedy. And since both judgements below arc based on a 

single word or phrase, the legislative fix itself might also be a simple matter of clarification. 

Section 1 03( c): Solely Applicable 

In 1997, the NPS revised its national regulations to ignore ANILCA Section 1 03(c), which states that 

non-federal land is not part of any conservation system unit established by ANILCA and that 

associated mauagement regulations do not apply to state and private inholdings (including stateowned navigable waters). From 1980 through 1996, the agency had respected ANILCA 's prohibition 

against applying "regulations applicable solely to public lands within such units" to state and private 

lands (NB: ANlLCA Section 102 defines "public lands'' as federally owned lauds). TI1e NPS's 

reversal was predicated almost entirely on the word "solely," arguing that national regulations apply 

nationwide, not "solely" to the lands \Yithin a particular conservation system unit. 

Eight years ago, citing the amended regulations, NPS officials threatened an Alaskan hunter, John 

Sturgeon, with a criminal citation for operating his personal hovercraft on state-owned lands within 

Yukon-Charley Rivers National Preserve. Not long after that, the NPS required the Alaska 

Department ofFish and Game to obtain a research permit to conduct salmon research on state-owned 

CACFA Testimony I Page 10 of 15 
47 

lands within Katmai National Preserve. Under its unilaterally established and self-administered 

regulatory authority, the NPS can oversee, limit and even refuse access to state and private lands by 

those with a right to be there, including state regulators, private citizens and licensees, throughout the 

U.S. In Alaska, this includes the ability to prohibit access to and use of millions of acres oflands 

conveyed to Alaska Natives under ANCSA, a settlement oflands intended to allow Alaska's Native 

people to provide for their economic future. Not surprisingly, most if not all ANCSA Corporations 

have been amici curiae in John Sturgeon's ongoing legal challenge targeting this assumed authority. 

To be fair, each of these actions was arguably required by the amended regulations, and many other 

actions not taken may also have been required, simply because the NPS had interpreted Section 

l03(c) into non-existence. And, since Section 103(c) applies to all conservation system units in 

Alaska, the NPS's interpretation could be extended to national wildlife refuges, national forest 

monuments. wild and scenic rivers and all other units. 

John Sturgeon's case is currently before the U.S. Supreme Court. Should lower court decisions be 

upheld, a true parade of absurdities is inevitable. Federal agencies could be legally required to 

enforce all national regulations on all state and private lands within the external boundaries of the 

conservation system units they manage, and the many protections ANILCA put into place for 

activities and uses within conservation system units may not apply. As an extreme bnt possible 

example, if some national implementation of the Wildcmcss Act prohibits anytl1ing motorized in 

designated wilderness, the people who live in designated wildemess areas in Alaska would have to 

park their snowmachine in the wilderness area because it could not be used on their private property. 

In 1959, Congress gave all Alaskans millions of acres and a promise- that we could use those lands 

in a sovereign capacity to support our economy and maintain our honored traditions and livelihoods. 

As our territorial delegate, Bob Bartlett, put it: "No area can make proper headway unless it has a 

land base.'' 104 CONG. REC. 9514. Ironically, statehood was also prompted in large part by the 

remote and generally uninformed territorial management of Alaska's resources, particularly when 

servicing a national agenda at our irrecoverable expense. 

Then, in 1971, Congress gave Native Alaskans millions of acres and a promise- tirat they could 

exercise some recognizable dominion on at least a small portion of the lands they had cared for and 

lived on for generations. Since territorial days, Congress had endeavored to protect Native use and 

occupancy, but ANCSA was the follow-t11rough for clear title tl1at had been promised as far back as 

the Alaska Organic Act of 1884. 

And finally, in 1980, Congress gave all Americans millions of acres of parklands and gave Alaskans a 

promise that, even though parks and preserves would be managed pursuant to System-wide and 

unit-specific rules, this management authority could not be used on state and private lands. That is 

what Section 103(c) means; it says non-federally owned lands are not part of the park. This was the 

savings clause for all the promises that went before (e.g., continuity of the "Alaskan lifestyle," the 

sovereign rights ofthe State to manage its lands and resources, including submerged lands and fish 

and game) and was meant to be the leverage we might need to safeguard our property interests, as 

well as our social and economic future, once we were surrow1ded by massive conservation areas. 

To negate everything provided at statehood and through ANCSA and ANILCA based on the presence 

of a single word is beyond the pale. The transformative domino effect in completely upending how 

we all understood Section l03(c) to apply has not fi.tlly revealed itself yet, but mass confusion is a 

certainty, as it has informed the way uses have been pern1itted, regulations have been worded, 

projects have been authorized, etc., for 35 years. Since the proper application of Section l03(c) is so 

patently obvious to us, we never imagined it would be necessary to ask this, but, should resolution of 

the Sturgeon case fail to provide a remedy, CACF A asks the Committee to consider clarifying the 

original intent to exclude non-federally owned lands from conservation system unit boundaries. 

CACF A Testimony I Page 11 of 15 
48 

Section 1326(b): Single Purpose Study 

In March 200 I, one of many debates regarding planning and roadless areas in the Tongass National 

Forest culminated in a brief, unpublished order on a pre-trial motion that included a terse, tacked-on 

finding regarding one of many statutory claims which, somehow, completely obliterated one of 

ANILCA 's cherished promises: that the rigorous debates of the 1970s were over, and that Congress' 

careful balance between the national interest in conservation and Alaska's social and economic needs 

should not be lightly disturbed. The unanticipated loss ofthis foundational premise had such obscure 

beginnings tl1at agencies taking advantage of it rarely even cite to the opinion (and those iliat do, 

wiiliout exception, cite to its companion case instead). 

The case was Alaska Forest Ass'n v. U.S. Dcp't of Agriculture, No. 199-013 CV (D.C. Alaska March 

30, 2001) and one oftl1c legal provisions at issue was ANILCA Section 1326(b), which states iliat 

[n}ofitrther studies ofFederallands in the State ofAlaska for the single 

purpose olconsidering the establishment of a conservation system unit . 

. orjor related or similar pwposes sha/! be conducted unless authorized 

by this Act or further Act of Congress. 

Plaintiffs argued that the U.S. Forest Service's study and recommendation of wild and scenic rivers in 

the Tongass Land Management Plan revision "violates this 'no more 'clause.'' The district court 

summarily rejected this argument, finding that, because tl1e Service had performed the river study for 

tl1e purpose of revising a general land management plan, it had not done so for "the single purpose" 

of considering the establishment of a conservation system unit. 

There was no discussion of, for exan1plc, an earlier 9th Circuit decision which found iliat: "As a 

compromise between logging and environmental interests. the Alaska Lands Act was to be the final 

word on what land in Alaska was to remain wilderness and what land was to be open tofilrther 

deve/opmenl." Citv of Tenakee Springs v. Block, 778 F.2d 1402, 1405 (9th Cir. 1985). l11ere v,;as no 

discussion of what the court's finding would mean in the context ofthe statute, or even as a matter of 

common sense. All any agency need do to side-step Section 1326(b) is include one other thing in its 

study, or simply incorporate its study into anotl1er study, management plan or decision document, 

which is exactly what has happened, most recently in ilie Arctic National Wildlife Refuge. 

As witl1 Section I 03( c), federal land managers have begun routinely ignoring Section 1326(b ), a key 

provision to relieve Alaskans from ilie specter of additional designations by agency fiat. l11is is done 

most commonly by conducting wilderness and wild and scenic river reviews in conjunction wiili 

updating large-scale management plans. And, as with Section 103(c), tl1is reversal is justified based 

on one small part of the original provision: the phrase "single purpose." Agencies claim that, 

because tl1e studies arc conducted in conjunction with management plan revisions, they are not 

conducted ':for the single purpose" of establishing a new conservation system unit. Additionally, and 

even more harmful to Alaskan interests, areas and rivers reviewed and/or recommended for 

designation are protectively managed until Congress takes action, or indefinitely if Congress docs not 

act. Some lands in the U.S. have had tl1is type of de facto designation over them for decades. 

As just one example, in accordance witl1 ilie 1993 Settlement Agreement for American Rivers v. 

Lujan, the BLM has been conducting agency-identified (not Congressionally-directed) wild and 

scenic river reviews in all of its land use plans in Alaska. Even ilie recent planning effort for the 

National Petroleum Reserve included a review, which was not required by tl1e settlement. The 

number of rivers involved is astonishing. For example, the currently ongoing plan for ilie Bering SeaWestern Interior area evaluated 255 waterways and found 22 of them met the criteria for eligibility. 

Notwiilistanding certain obtuse judicial orders, CACFA believes ilicsc and other similar reviews arc 

patently illegal. Wild and scenic rivers and wilderness areas are conservation system units, and 

Section 1326(b) prohibits studies which consider the establishment of conservation system units 

CACFA Testimony I Page 12 of 15 
49 

unless authorized by ANILCA or another Act of Congress. Since the reviews authorized by ANILCA 

have already been completed, unless Congress has authorized these reviews, they all fall entirely 

within this prohibition. The consideration of new conservation system units is their purpose. 

Federal agencies have also interpreted Section 5(d)(l) ofthe Wild and Scenic Rivers Act as providing 

the authority to conduct "agency-identified" reviews. but Section 1326(b) requires Congressional 

authorization. Even \Yorse, internal agency policies ensure that any rivers which are merely studied 

for potential recommendation are protected indefinitely. For instance, BLM policy directs staff to 

manage and protect both eligible (merely studied) and suitable (meet criteria for recommended 

designation) rivers. Compare this to the Wild and Scenic River Act itself, which only provides 

direction to protect "Congressionally-directed" rivers, and only while Congress deliberates on agency 

recommendations. Even if Section !326(b) can be interpreted away, there is no statutory provision 

authorizing interim protection to all studied rivers, especially not "agency-identified" study rivers. 

CACF A recommends this Committee consider clarifying the original intent to prohibit futtber 

reviews for the establishment of conservation system units in Alaska, which may include an explicit 

exemption from Section 5( d)( I) of the Wild and Scenic Rivers Act and the dcfimding or preemption 

of any attempt to either study lands and waters in Alaska for designation, in any context, or to manage 

areas based on suitability or eligibility without specific authorization from Congress. 

V. Public Use Management and Processes 

A large number of ANILCA 's compromise guarantees provided for ·'reasonable regulations" by the respective 

land manager (typically the Secretary ofthe Interior). Many of those provisions were implemented through 

rulemaking in the 1980s, with the benefit of multiple cooperative mechanisms. like the Alaska Land Use 

Council, and also an infonned and contemporaneous understanding of the Congressional intent in ANILCA. 

Some regulations were never developed, including implementation of subsistence access provisions on ELMadministered lands and Title XI access provisions in areas managed by the U.S. Department of Agriculture, 

tl10ugh the majority of management actions and land use plans still took those provisions into account. 

Recently, however, those regulations have been either amended, to the detriment of both the public and 

Congressional intent, misinterpreted or flatly ignored in federal management actions, or effectively 

overridden by internal (and frequently national) policies and directives. Two relatively insidious trends have 

been to amend or ignore the "public participation" aspects in these regulations, to make it easier to 

unilaterally manage uses without accountability, and the omission or substantive revision of these regulations 

through implementing policies and planning documents. Specific examples are numerous and convoluted, so 

the following sections focus on two systemic contributors to this arcane affront on the compromises and 

guarantees Congress intended in enacting A NILCA. 

The Age of Policy 

Statutory authorizations for federal agencies intentionally include broad value statements to establish 

an all-encompassing agency mission and inspire a foundational management ethic. Unfortunately, 

this vague statutory language, and related language in implementing regulations, has been effectively 

co-opted into strict, highly detailed, thoroughly unaccountable internal policy documents that result in 

verifiable legal and procedural consequences to tl1e regulated public. 

Some policies arc not even shared with the public, let alone given an)ihing close to a public review 

opportunity. Some are implemented while still in "draft" fonn. A good recent example would be the 

BLM's "Planning 2.0" policy, which is both being implemented prior to finalization and has not been 

shared with the public. Some arc not implemented at all; usually older policies where the public is 

told the instructions are "discretionary." Sometimes that can be a good thing and other times not, like 

when the FWS abandoned its policy against wildemess reviews during the Arctic Refuge plm1 

revision, inexplicably and witl10ut notice, based on an internal2010 mcmorm1dum. Most shocking, 

CACF A Testimony I Page 13 of 15 
50 

though, are policies so far removed from the original statutory language that it is laughable to call 

them a natural outgrowth, let alone a justifiable "implementation." 

Even noncontroversial provisions in ANTLCA have been marginalized through regional and national 

policies. For exan1ple, Congress provided for Alaska refuges to be "open until closed," the reverse of 

refuges in other states where all uses must be authorized and can be limited at-will. Closing a refuge 

to public uses in Alaska has a strict public process, generally involving notice and a public hearing. 

This provision is profmmdly important, particularly considering the sheer size of Alaska refuges and 

long histories of traditional uses, but has created serious tensions with national policies in the past 

most notably the Compatibility Policy ( 603 FW 2), which included unique direction for Alaska and 

under which managers have generally sided with ANILCA where no direction was specified. 

That said, most national policies make no provisions for ANILCA, including ones that implicate its 

many and varied requirements. For exan1ple, the FWS has adopted closure plans in the event of a 

government shutdown, including one in September of this year. In verbal conversations with the 

Alaska Department of Fish & Gan1e, the FWS said all hunting would remain open; however, the 

national plan would close every refuge in Alaska to all hunting except federally qualified subsistence 

hunters and certain waterfowl harvests. The FWS justifies this action by asserting that any closure 

would be on an emergency basis and thus would not be subject to legal requirements for notice and a 

hearing; however, this supposed "emergency" has a plan. ANILCA is particularly clear that, if they 

are going to rely on a plan, that plan should be adopted through the regulatory process. 

CACFA is seriously concerned about the persistence of this approach to managing shutdowns. This 

brash defiance of ANILCA provisions has serious consequences for Alaskans. ill addition to the 

impacts on guides, assistant guides, air taxi operators, transporters, and their clients, rural residents 

suffer by loss of employment and the usc of lawfully donated meat to feed their families. Residents 

in connnunities near or within refuges are subjected to even more uncertainty under what 

circumstances would they even be allowed to leave'l These arc things national, single-focus, onesize-fits-all directives frequently fail to take into account, circumventing the very special provisions 

and compromises in ANTLCA which must be enforced before agreeing to live among these massive 

conservation units becomes the worst mistake Alaskans ever made. 

Landscape-Level Planning 

The whole concept of a ''landscape-level" approach to land management is fairly recent, taking shape 

primarily through guidance and memoranda issued by the current administration. Essentially, land 

use planning, policies and decision-making arc to take into account regional concerns and ecosystems 

without regard for ownership. Since it appears largely intended to address management issues 

prompted by climate change, and because of our diverse land ownership mosaic and large, contiguous 

blocks of federal land, particular focus has been placed on Alaska in implementing this approach. 

Unfortunately, the associated directives and policies are not coming from Alaska, and lack even a 

mdimcntary understanding of ANILCA or the unique Alaska context. ANILCA and its implementing 

regulations do not contemplate or provide for ''landscape-level" management, and vice versa. This 

leaves Alaskans, and regional federal agency staff, in a difficult position. 

Dividing the state into large, landscape-level planning areas means one plan could conceivably 

govern the management of an area equal in size to several states. This provides agencies with the 

capacity to apply national policies to tl1e largest possible area, and to influence the management of 

non-federal lands. Further, developing meaningful comments on these highly complex plans is an 

enormous undertaking for the State and the public. who may only be directly impacted by one 

discrete area. During the initial implementation of ANTLCA 's planning provisions in the 1980s, areas 

had individual, targeted plans with significant local stakeholder engagement. That dynamic is gone. 

CACF A Testimony I Page 14 of 15 
51 

Even though some "step-down·· plans arc scheduled for individual areas and public uses, those plans 

will still be servient to the larger plans. Alaskans who have their lives and livelihoods intimately 

impacted by one or many of these areas must review and comment on thousands of pages of planning 

documents. along with everyone else, trying to capture everything and hoping to be heard. Promising 

them a step-down plan with local focus is meaningless with these larger plans calling the shots. 

While CACF A remains vigilant in reviewing and commenting on these massive and multi-faceted 

land use plans, it is ne:\i to impossible to capably track all the interpretations of laws and evolution of 

policies being brought to bear in their creation and effect. While the ''landscape-level" approach 

could conceivably translate into efficiencies. cooperation and responsible. comprehensive resource 

management, its present roll-out does not inspire much confidence in that result. Potential 

safeguards, however, could be realized through the collaborative development of regional ANILCA 

guidance, suggested above. This could help to incorporate a common and consistent framework for 

implementing ANILCA in a landscape-level framework, which could resolve a number of issues. 

VI. Summary 

CACF A truly appreciates that the Committee is considering the many challenges associated with the 

implementation of ANILCA, as well as the possibility of amendments to the law to address those challenges. 

As you can see, from this small sampling, it is quite an undertaking. T11e intent of our testimony today, 

however, is to simply highlight the need for a return to the compromise, not an attempt to sec it revisited. 

ANILCA was a carefully crafted, heavily debated, and intensely deliberate sorting of various needs and 

interests, impossible to repeat and delicate to disturb. Everybody walked away with something and no one 

walked away with everything. 

Luckily, Alaska is big enough for everything for parks, for refuges, for mining, for oil and gas, for hunting, 

for sanctuary. for cities, for solitude. for embracing the past. for dreaming of the futmc. \Ve have a 

knowledgeable and passionate population that sees the big picture, knows things others have long forgotten, 

befriends their ideological opposites, and wakes up every day to wondrous beauty and bounty. No laboratory 

of democracy is so rich with liberties, diversity, compromise and interconnectedness, to each other and the 

land, on both of which we dearly depend. 

ANILCA may be a federal law but it has completely transformed the lives of Alaskans, many of whom 

greatly rely on and invest in its protection oftl1eir interests. pursuits and livelihoods. Attacks on the 

·'compromise" can be cyclical and transient, bending with the wants, needs and ideations of the Presidential 

administration and the composition of Congress. But ANILCA was intended to be our solid touchstone, and 

finding our interests and futures dependent on political fran1eworks is exhausting, unsustainable and persists 

to our mutual detriment. Things have strayed so far from the statute that made it through the "d2 debates,'' 

and it will be a huge challenge to find our way back. But we can, particularly by remembering and trusting in 

what we came together to accomplish on December 2, 1980. Thank you for this opportunity to testifY and for 

your consideration. 

CACF A Testimony I Page 15 of 15 
52 

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. 
53 

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:] 
54 

l~f=::;ti5;;r~~ ~~f 

ir~~j!,'lir.t.~tu:ii: 

:Ei:!i:¥l~'tih:r.!=:r,·g:::;'t!"';:l! 

'!;it~ !§!!~r;.'if; ~~~~. 

(;.t:i'f~· :~~i;¥,:•r.;ir.;•';~.; 

;~~;!'l;!,;ih~i~ZS:~: 

Alaska Outdoor Council 

Alaska Fish & Wildlife Conservation Fund 

310 K Street, Suite 200 

Anchorage, Alaska 99501 

Phone: (907) 264-6645 Fax: (888) 932-3353 

e-mail: aoc@alaskaoutdoorcouncil.com 

web: www.alaskaoutdoorcouncil.org 

Darla Ripchensky, Chief Clerk 

U S. Senate Committee on Energy and Natural Resources 

304 Dirksen Senate Office Building 

Washington, DC 20510 

November 28, 2015 

RE: Hearing on the Alaska National Interest Lands Conservation Act of 1980 

Dear Senator Murkowski and Committee members: 

The Alaska Outdoor Council (AOC) respectfully appreciates the opportunity to provide 

comment before the Committee on Energy and Natural Resources on the impacts and 

future of the implementation of the Alaska National Interest Lands Conservation Act of 

1980 (ANILCA) on Alaska and its citizenry. AOC is a statewide non-profit 

conservation organization that has actively participated in the regulatory process offish 

and game management since before statehood. AOC represents over 10,000 Alaskans 

who hunt, trap, fish, and recreate on public lands and waters throughout Alaska. 

AOC offers the following perspectives on ANILCA's impacts in Alaska over the last 35 

years. 

Congressional history of ANILCA 

By the 1 960s Congress had recognized Alaska's intact landscape ecosystems were "a 

special category" unlike anything remaining in the rest of the United States. Armed with 

that understanding Congress took action by passing The Alaska Native Claims 

Settlement Act of 1971 (ANCSA), Section 17d(2) of which directs the Secretary of the 

U.S. Department of the Interior (DO!) to withdraw up to 80 million acres of land for 

conservation purposes. Alaska's vast intact wilderness habitat provided Congress with 

the opportunity to select lands rich in natural resources with only minimal disturbance 

by human development for potential congressional desi~o,>nation as National Parks, 

Wildlife Refuges, Wild and Scenic Rivers, or National Forests. 

Under the authority of the Alaska National Interest Lands Conservation Act of 1980 

(ANILCA), nine years after the passage of ANCSA, Congress took action to set aside 

over a 100 million acres of relatively undeveloped national interest lands as 

Conservation System Units (CSUs). Today Alaska contains 65% of all the National 

Park Service lands in the entire nation, 48% of all U.S. Fish & Wildlife Service Refuges 

(USFWS), and 31% of all Bureau of Land Management lands. These are not "postagestamp size" enclaves like those east of the Mississippi River. These are landscape-scale 

ecosystems. 

rrProtecting your Hunting.} Trapping.} Fishing and Access Rights since 1955u 
55 

Congress chose to include Title Vlll- Subsistence Management and Use Findings in ANILCA on the 

recommendation from the 1971 Conference Committee on ANCSA which had offered its opinion that 

state and federal governments should take action necessary to insure that Alaska Natives' subsistence 

uses should continue. Congress made no commitment in ANCSA to protect subsistence uses on 

federal lands. 

Federal subsistence priority to public resources 

Congress' decision to adopt legislation in Title Vlli of ANILCA, Section 802 giving a priority to 

public resources on federal lands based on an individual's address has led to 35 years of conflict among 

Alaska's citizenry. 

PUBLIC LAW 96-487-DEC. 2, 1980 

POLICY 

"SEC. 802. It is hereby declared to he the policy of Congress that-· 

1) consistent with sound management principles, and the conservation (!fhealthy populations (!l 

fish and wildlife, the utilization c?fthe public land1· in Alaska is to cause the least adverse 

impact possible on rural residents who depend upon subsistence uses of the resources of such 

land~. consistent with management c!f' fish and wildlife in accordance with recognized scientific 

principles and the pwposesfor each unit established, designated, or expanded by or pursuant 

to titles !!through VII c!f this Act, the pwpose of this title is to provide the opportunityfor rural 

residents engaged in a subsistence way of life to do so; 

2) non-wasteful subsistence uses of fish and wildlife and other renewable resources shall he the 

priority consumptive uses of all such resources on the public lands of Alaska when it is 

necessmy to restrict taking in order to assure the continued viability c!f'ajish or wildlife 

population or the continuation <!f'suhsistence uses (!fsuch population, the taking of such 

population for non-wastefid subsistence uses shall be given pr~ference on the public lands over 

other consumptive uses;" (emphasis mine) 

The implementation of Title VIII- Subsistence Management and Use Findings in ANILCA by the DOI 

has resulted in years of litigation and tens of millions of dollars in expense to the federal government. 

And after 25 years no party of subsistence users are the least bit satisfied by the process or the outcome 

(See Alaska Federation of Natives, Native American Rights Fund, State of Alaska, and AOC 

comments on DO! Comprehensive Review of Native Alaskan Subsistence Policy and Programs 2009). 

The agreed-upon compromise Congress passed in ANILCA in 1980 has clearly been hijacked by 

national preservation organizations and Native rights activists for their own self-interests over that of 

the common good of Alaskans. 

Today there is no crisis of Alaska Native access to a wildfood harvest. Both State and Federal laws 

give priorities to subsistence use in Alaska. The State of Alaska manages for sustained yield (see 

Alaska State Constitution Article 8, Section 4) and on appropriate state lands for increased harvest 

(see Alaska Statute 16.05.255 e-g and k l-5). According to the US Fish and Wildlife Service, rural 

residents harvest an average of3751bs/person/year (Juneau Empire 12114/09) a figure that has 

"Protecting your Hunting, Trapping, Fishing and Access Rights" 

The Official State Association of the National Rine Association. 

Pagc2of6 
56 

fluctuated very little since subsistence harvest reporting begin. An article in the Alaska Magazine in 

June 2009 states, "Today's Native population gets at least 50% of its food from stores" 

• Changes in Title Vlll and/or subsistence regulations will not change the levels of subsistence uses 

by Alaska Natives (or other rural residents) or reduce the risk to" ..... health and well being and 

ancient way of life." Continuing changes in individual choices of lifestyle will dictate these risks. 

Alaska's subsistence law (see Alaska Statute 16.05.258(4)(B)(i)) is based primarily on the 

customary and direct dependence on the fish stock or game population by the subsistence user for 

human consumption as a mainstay of livelihood. Unlike Title VIII of ANILCA, the Alaska State 

subsistence law is not based on a criterion of residency, which has led to divisiveness among 

Alaskan residents over the last 35 years. 

Federal Management of public resources on federal lands- fish and game 

With the passage of ANILCA, Conb>ress made subsistence uses of fish and game the highest priority 

use on federal lands in Alaska which comprise 59% of the state. Yet for the last 25 years federal land 

managers have dodged this mandate by using any applicable law, regulation, or policy possible to not 

provide abundant harvestable surpluses ofwildfood for harvest "Healthy" (and for NPS lands also 

"natural", ANILCA 815.1) fish and game populations are management criteria mandated by ANILCA 

802.1, rather than sustainable abundance for harvest. 

Supported by national preservation groups' litigation, DOl land managers have blocked state 

predator/prey management programs to reverse declining caribou populations, Alaska Board of Game 

regulations to harvest abundant predator populations responsible for holding prey (human food) 

species at low population levels, and salmon enhancement projects on federal lands. 

The result of declining numbers of harvestable surplus on federal lands, after the federal takeover of 

subsistence management in 1990, has led to reduced opportunity for non-federally qualified 

subsistence users, which in turn has led to increasing hostility between urban and rural Alaskan 

residents. Also, declining harvestable surplus means non-resident hunters and/or anglers who 

contribute to Alaska's economic development loose opportunity. 

On October 23, 2015 in The Daily Journal of the United States Government, 

reported on the National Park (NPS)- Final rule on Alaska; Hunting and Trapping in National 

Preserves. RIN 1024-AE21, Amendments to 36 CFR Part 13. 

On page 8 the report states: 

"This rule does no/limit the taking of wildlife for Title VJJJ subsistence uses under the federal 

subsistence regulations." 

In actuality, reduced harvestable surplus on National Park Preserve lands does limit the taking of 

wildlife by federally qualified subsistence users (as well as others). Non-federally-qualified subsistence 

hunters, hunting under State of Alaska regulations on National Park Service lands, take harvestable 

surpluses of species of predators. That in turn allows for the continuation of "healthy" populations of 

both prey and predator species on National Park Service lands. 

"Protecting your Hunting, Trapping, Fishing and Access Rights" 

The Official State Association of the National Rifle Association. 

Page 3 of6 
57 

The NPS goes on to report that their mandate under the NPS Organic Act of 1916 requires them to 

comply with NPS Management Polices 2006, 4.4.3 which do not allow manipulating natural systems 

and processes to increase numbers of harvested species. 

And because of that, NPS believes the NPS Organic Act of 1916 trumps ANILCA SEC. 1314; 

PUBLIC LAW 96-487-DEC. 2, 1980 

TAKING OF FISH AND WILDLIFE 

S'EC. I3I4. (a) Nothing in this Act is intended to enlarge or diminish the responsibility and authority of 

the State of Alaska for management (Jffish and>vildlife on the public lands except as may he provided 

in title VIII (!f this Act, or to amend the Alaska constitution 

1) Except as specifically provided otherwise hy this Act, nothing in this Act is intended to enlarge 

or diminish the responsibility and authority ol the Secretmy over the management of the public 

land~. 

2) The taking offish and wildlile in all consen,ation system units, and in national conservation 

areas, national recreation areas, and nationaljorests, shall he carried out in accordance with 

the provisions of this Act and other applicable State and Federal hrw. Those areas designated 

as national parks or national park .1ystem monuments in the State shall be closed to the taking 

of fish and wildlife, except that -

a. notwithstanding any other provision of this Act, the Secretary shall administer those 

units of' the National Park System, and those additions to existing units, established hy 

this Act and which permit subsistence uses, to provide an opportunityjor the 

continuance of such uses hy local rural residents; and 

h. .fishing shall be permitted hy the Secretwy in accordance with the provisions of this Act 

and other applicable State and Federal law. 

The Final Rule went into effect November 23, 2015. The Alaska Outdoor Council and other Alaskans 

would like to know if it was the intent of Congress to allow federal land managers to takeover wildlife 

management when DOl determines the State of Alaska is not in compliance with NPS policies. 

Access to and across federal public lands and private inholdings within CSUs 

Clearly the framers of ANILCA were aware of the fact that by creating CSUs that encompassed entire 

landscape ecosystems with little to no developed transportation infrastructure, that special access 

provisions would need to be incorporated in the law to allow subsistence use and development of state 

and private lands. That's proven by the inclusion of Sections 1110, 1323, and 811 in ANILCA. 

National preservationist organizations are fully aware of the fact that federal lands must remain 

roadless in order to qualify for wilderness designation under the Wilderness Act of 1964 ( 16 U.S. C. 

1131-1136,78 Stat. 890) --Public Law 88-577. ANILCA established seven National Wilderness 

Preservation System areas in Alaska comprising 18,560,000 acres. And 90% of all USFWS-designed 

wilderness and 75% of all NPS-designed wilderness in the nation is located in Alaska. 

((Protecting your Hunting) Tropping1 Fishing and Access Rights.}) 

The Official State Association of the National Rifle Association. 

Page ..t of() 
58 

Reducing public access opportunities to federal lands has been the trend for all federal land-managing 

agencies since the passage of ANILCA. 

Currently the NPS and the USFWS manage all their lands designated as eligible for inclusion by an 

act of Congress into the National Wildemess Preservation System as if they already had 

Congressional approval. 

NPS has banned hovercraft use on State navigable waters, restricted aircraft access, closed 

established motorized trail use to non-locals, and restricted federally-qualified rural residents to 

specific trails while hunting- all through their rulemaking process. 

BLM has closed numerous pre-ANILCA motorized trails and now is recommending the creation of 

Areas of Critical Environmental Concern (ACEC) in their Resource Management Plans for the 

Alaska Eastern Interior in areas with established trails. ACEC are areas where BLM has determined 

special management is necessary to prevent irreparable damage to important historic, cultnral, or 

scenic values, fish and wildlife resources, or other natural systems. BLM attempted to designate 

areas of Alaska as "Wild Lands" in order to restrict motorized access. 

The US Fish and Wildlife Service continues to reduce aircraft access on Refuge lands long after any 

concerns for migrating waterfowl had been resolved, and they have also restricted boat access due to 

perceived user conflict. 

• The US Forest Service has closed lands to motorized access by non-federally qualified rural 

residents when there have been no documented conservation concerns, and they continne to 

deconstruct stream crossings on established roads over anadromous waters. 

Alaska Outdoor Council Recommendations and Position 

1) Eliminate the "rural" priority and replace it with "in areas where customary and traditional 

subsistence uses comprise the principal element of the economy'' The rural priority is 

inconsistent with the common use and equal access mandates of the Alaska Constitution as 

determined in I 989 by the Alaska Supreme Court in McDowell v. State. Justice Moore 

summed it up as follows: "This is an equal protection case, and an easy one at that." 

AOC does not believe Title Vlll of ANILCA is consistent with the equal protection provisions 

of the U.S. Constitution. 

2) Clearly define "federal land" as described in ANILCA, Sections 102(2) and l03(c) as not 

including navigable waters of the State of Alaska. ANILCA clearly states that "federal lands" 

or "public lands" do not and cannot include lands (or waters) granted to the state or other 

entities. Alaska's navigable waters and submerged lands were granted in the Alaska Statehood 

Act in conformity with the 1953 Federal Submerged Lands Act and the "Equal Footing 

Doctrine." Nowhere in ANILCA is the "Reserved Waters Doctrine" mentioned, yet 

subsequently federal courts have referred to it as "implicit" in establishing special federal areas 

without referencing its statutory foundation. "Ambush" would better desctibe tl1e "Reserved 

Waters Doctrine" than "implicit." The 9th Circuit Court of Appeals "muddied the waters" in 

the Katie John case by ruling that federal agencies in Alaska had reserved water rights on 

"Protecting your Hunting, Trapping, Fishing and Access Rights" 

The Official State Association of the National Rine Association. 

Page5of6 
59 

conservation system units, then stated "We recognize that our holding may be inherently 

unsatisfactory," and "The issue raised by the parties cries for a legislative, not judicial, 

solution." After vowing to take the case to the U.S. Supreme Court in his obligation as 

Governor, then-Governor Knowles dismissed the appeal when threatened with political 

retribution by Alaska Native groups. The Alaska Legislature refused to capitulate to federal 

rules, and Congress did nothing to clear up the muddied waters. 

3) Amend ANILCA to explicitly recognize the State of Alaska's authority to manage t1sh and 

wildlife on ALL Alaskan lands and waters. Section 1314(a) and (b) make clear that the State of 

Alaska retains the authority and responsibility to manage fish and wildlife, while the Secretary 

of Interior retains the authority to manage habitat and to ensure that the rural subsistence 

priority is provided for. The Secretary is not given authority to manage fish and wildlife. 

Congress, in the Alaska Statehood Act granted the State of Alaska the authority to manage its 

own fish and game resources. Despite this, the Interior and Agriculture Departments' agencies 

have proceeded to set up very costly administrative processes to manage fish and game on 

federal public lands and conservation system units. This abduction of the state's authority to 

manage its own fish and game resources duplicates the management and administrative efforts 

of the State and adds the burden of unnecessary regulations to Alaskans. These actions 

disadvantage all resources users. 

4) Withhold funding that would allow NPS to implement the amendments to 36 CFR Part 13 in 

the Nov. 23, 2015 NPS Final rule on Alaska; Hunting and Trapping in National Preserves. RIN 

1024-AE21 until Congress has had an opportunity to review its effects on compliance with the 

mandates in ANILCA 

Sincerely, 

Rod Arno 

Executive Director 

Alaska Outdoor Council 

Bill Iverson 

fuJ cz_____.-.----·. 

President 

Alaska Outdoor Council 

uProtecting your Hunting.~ Trapping_, Fishing and Access Rights.n 

The Official State Association of the National Riffe Association. 

Page 6 of6 
60 

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 Arc-
61 

tic 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:] 
62 

Statement of Valerie Brown 

Legal Director, Trustees for Alaska 

Senate Energy & Natural Resource Committee 

Hearing to receive testimony on 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. 

December 3, 2015 

Chairman Murkowski, Ranking Member Cantwell, and members of the Committee: 

Thank you for the opportunity to address the importance of the Alaska National Interest 

Lands Conservation Act ("ANlLCA") of 1980, today, 35 years after its passage. Trustees for 

Alaska is a non-profit public interest environmental law firm. We represent conservation and 

tribal interests on environmental and natural resource issues facing Alaskans. Trustees for Alaska 

has a long history of involvement in protecting the national conservation goals of ANlLCA on 

behalf of Alaskans, Alaska Natives, and national conservation interests. 

My comments primarily address ANlLCA's central purpose- conservation- and 

highlight some specific examples and remaining challenges. I also briefly address the other 

important components of ANlLCA- ensuring the continuation of subsistence rights for 

Alaska's rural residents and the access provisions that balance the need to ensure conservation 

with the continuing use of the public lands and the rights oflandowners. 

The Alaska National Interest Lands Conservation Act 

Considering it "one of the most important pieces of conservation legislation ever passed," 

President Jimmy Carter signed ANILCA into law on December 2, 1980. 1 ANILCA's passage 

was the culmination of decades of legislative and advocacy efforts to protect and safeguard 

Alaska's exceptional ecological and natural resources for the national public interest and to 

protect them for subsistence use by Alaska Natives. It is an exceptional piece oflegislation in 

what it accomplished on a landscape scale, and it continues to contribute to the vibrant and 

ecologically rich Alaska of today. 

History of ANlLCA's Passage2 

While ANlLCA was passed in 1980, the momentum behind protecting lands in Alaska 

for the national public interest began well before Alaska was admitted as the 49111 state. Alaska's 

rich natural resources have long attracted outside interests seeking to export Alaska's oil, fish, 

timber, and minerals. Logging in southeast, oil development in the Bering River area and on the 

Kenai Peninsula, commercial fishing in inland and marine waters, and mining of Alaska's 

mineral resources were all taking place long before Alaska became a state. But beginning in 

1892 with the creation of Afognak Island as a forest reserve and fish culture station, efforts have 

been underway to balance the use and protection of Alaska's resources. Alaska's two National 

Forests- the Tongass and the Chugach- as well as three gems of the National Park system1 Alaska National Interest Lands Conservation Act: Remarks on Signing H.R. 39 into Law. Dec. 2, 1980. 16 

WEEKLY CO:V!P. PRES. Docs. 2755 (Dec. 8, 1980). 2 This section was drafted with reference to: The Wilderness Society, Alaska National Interest Lands 

Conservation Acr Citizens' Guide 6--19 (July 2001 ). 
63 

Glacier Bay, Katmai, and Denali- were all created in recognition of their outstanding values 

and need for protection in the years before statehood. The efforts to protect Alaska's exceptional 

national areas through the decades have enjoyed bipartisan support, from Teddy Roosevelt, to 

Woodrow Wilson, to Franklin Roosevelt, to Dwight Eisenhower. 

When Alaska became a state in 1959, the United States gave Alaska the right to select 

105 million acres of unreserved federal lands. This amount was five times the amount awarded to 

any other state, and Alaska chose well. For example, Prudhoe Bay and the central North Slope 

was one of the areas that the State selected. It was the discovery of oil on State land at Prudhoe 

Bay in 1968 that most changed the course of Alaska's economic history. In order to deliver 

North Slope oil to market a pipeline to an ice-free tidewater port was needed. Such a pipeline 

would have to cross land that was claimed by, among others, Alaska Natives who vigorously and 

successfully asserted their right to settle their land claims before the construction of a pipeline. 

That effort led to passage of the Alaska Native Claims Settlement Act ("ANCSA") in 

1971. Through ANCSA, Congress provided 44 million acres ofland and nearly $1 billion to 

newly-created regional and village corporations, and also extinguished title to aboriginal lands in 

Alaska. At the same time, ANCSA failed to resolve the rights of Alaska Natives to continued 

access to and use of subsistence resources, deferring resolution of those issues to a later time. 

Conservation of some federal lands also remained unresolved by ANCSA, but Congress 

authorized the Secretary of the Interior to withdraw up to 80 million acres to study for possible 

designation as, or additions to, national parks, national refuges, national forests, wild and scenic 

rivers, and the wilderness preservation system. Those withdrawals were not permanent; they 

required subsequent action to ensure permanent protection. It was these two issues left 

unresolved by ANCSA protection for subsistence and conservation of public lands- that 

laid the foundation for ANILCA. 

Legislation that would carry out ANCSA's unfinished business of setting aside public 

lands in Alaska for conservation was first introduced in 1977. That bill did not pass and the clock 

on the ANCSA land withdrawals ticked toward expiration, meaning that millions of acres of 

national public lands might be selected by other interests and would not be available for 

inclusion in conservation systems. 

After Congress' failure to act on a conservation bill and the nearing expiration of the 

ANCSA withdrawals, President Carter and Secretary of the Interior Cecil Andrus used executive 

authority to withdraw more than !50 million acres. These executive actions kick-started the final 

legislative push to protect our national public lands and pass ANILCA. After various bills were 

introduced and amendments made, numerous committee hearings held, and extensive 

negotiations, ANILCA was passed by Congress and signed by President Carter on December 2, 

1980, just over 35 years ago today. 

ANILCA was exceptionally forward-thinking in what it accomplished. It made long-term 

decisions about conservation and subsistence that continue to benefit Alaska, Alaska Natives, 

and the nation today. For example, the conservation benefits of ANILCA have translated into 

strong economic benefits for Alaskans and Alaska communities. Outdoor recreation alone 

generates $9.5 billion dollars of spending in Alaska, supporting 92,000 direct jobs and providing 

2 
64 

$711 million in state and local tax revenue annually. 3 More than a million out-of-state visitors 

flock to Southeast Alaska each year supporting 10,200 jobs that contribution another $1 billion 

to the regional economy 4 In 2014, Denali National Park hosted over 530,000 visitors, who spent 

over $5 million in communities near the park, supporting nearly 7,000 area jobs, and generating 

a total economic benefit to the local economy of nearly $7.5 million5 In 2011, more than 

570,000 people visited the Kenai National Wildlife Refuge, generating more than $113 million 

in economic benefit for the area. 6 In 2010, BLM lands in Alaska contributed over 1,000 jobs, 

received over 600,000 visitors, and generated over $28 million from recreational use7 Alaskan 

residents spent as much $247.8 million each year in local communities as a result of their use of 

Alaska's two National Forests, the Chugach and Tongass. 8 In 2012, guided hunters spent a total 

of $51 million on hunting packages and another $3.5 million on associated services while in 

Alaska. 9 Almost half of the guiding revenue was earned hunting on federal land. 10 ANILCA 

lands also support the healthy ecosystems that are necessary to sustain fishing year after year. A 

2001 study estimates that Alaska's commercial fishing industry supplies 20,000 direct jobs and 

supports an additional 14,000 indirect jobs]! 

ANILCA's Conservation Mandate 

In ANILCA, Congress sought to preserve for future generations certain lands and waters 

in the State of Alaska that had nationally significant values, including areas important for 

wildlife, subsistence, wilderness, recreation, scientific, scenic, and historic reasons. Land 

conservation in the national interest was the focus. 12 In total, Congress protected over I 04 

million acres of federal land in 13 national parks, 16 national wildlife refuges, 2 conservations 

areas, 2 national forests, and 26 wild and scenic rivers. 13 Fifty-seven million acres were also 

designated as Wilderness, the highest level of protection afforded our public lands. 14 

3 Outdoor Industry Association. The Ontdoor Recreation Economy: Take it Ontside for Alaska Jobs and a 

Strong Economy (2013). available at: https:l/ou!doorindustrv.org/images/ore reports/AK-alaskamr!doorrccrea!ioncconomy-oiaJlli[ 

'McDowell Group, Economic Impact of Visitors to Southeast Alaska 201 0-I 1. prepared for Alaska 

Wilderness League I (Aug 20 12) 

http://www.alaskaprohunter.org/Economic Impacts of Guided Hunting Final. pdf (last visited Nov. 29. 2015) 5 Derurli Visitors Provide Economic Benefits to Alaska and Local Area Economies. Denali National Park and 

Preserve Alaska, National Park Serv., http://www.nps.gm·/dena/learn/news/econ-benefits.htm (last visited Nov. 28, 

20 15) :see also Denali, National Park's Economic Impacts. Headwaters Economics (June 20 15). 

http://he<Jdwaterseconomics.org/dataviz/national-park-service-units (last visited Nov. 30, 2015). 6 Natiorurl Wildlife Refuges Provide Significant Local Economic U.S. Fish & Wildlife Serv .. Region 

7-Aiaska (Nov. 6. 2013), available at: ~~;J~~~~~~::~~~~::~~~LPJJJ: 'About ELM-Alaska. U.S. Department 

http://www.blm.goY/aklst/en/info/about blm.html (last visited Nov. 28. 2015). 8 Spencer Phillips et al., Greater Than Zero: Toward the Total Econmnic Valne of Alaska's National Forest 

Wildlands 5--{) (2008), available at https:l/partners.tws.org/wilclscicncc/Publicationsl/Greate~;{,20than%20Zero.pdf 

(describing timber sales in the Tongass and Chugach forests). The estimated armual harvest value of salmon 

supported by these two forests is$ 99.7 million (in 2008 dollars). !d. 9 The McDowell Group, The Economic Impacts of Guided Hunting in Alaska I (Febmary 2014) 10 !d. at 9. 11 Steve Colt. lnst. of Social & Econ. Research. What's the Economic Importance of Alaska's Healthy 

Ecosystems'' 2 (2001). available at http://www.iser.ma.alaska.edu/Publications/forrnallrsummary/rs61.pdf. 12 ANILCA § IOI(a). 16 U.S.C. § 310l(a). 13 ANILCA Titles II. lll, IV, V. VL 14 ANILCA Tille VII. 

3 
65 

With respect to our National Park system alone, ANILCA provided significant 

contributions. For example, Gates of the Arctic National Park is America's premier Wilderness 

National Park. Wrangell-St. Elias National Park and Preserve is our nation's largest National 

Park. And Denali and Glacier Bay National Parks not only protect exceptional ecosystems, they 

also host millions of visitors each year, allowing Alaskans, Americans, and people from around 

the globe to experience the values that ANILCA sought to protect. 

Given ANILCA's central conservation purpose, I provide here some examples of the 

valued public lands that have been protected by ANILCA, starting with the Arctic National 

Wildlife Refuge ("Arctic Refuge"). As the U.S Department of the Interior states, the Arctic 

Refuge "supports the greatest variety of plant and animal life of any Park or Refuge in the 

circumpolar arctic." 15 It hosts a huge range of wildlife species, including 42 species offish, 37 

species ofland mammals, 8 sgecies of marine mammals, and over 200 different species of 

migratory and resident birds. 6 The plentiful wildlife on the coastal plain has led some to call it 

America's Serengeti. 17 Fulfilling its mandate to further study the values of the Arctic Refuge's 

coastal plain, the U.S. Fish and Wildlife Service concluded in 1987 that the coastal plain of the 

Arctic Refuge is the "most biolo~ically productive part of the Arctic Refuge for wildlife and is 

the center for wildlife activity." 1 

Perhaps the most celebrated of the coastal plain's wildlife are the caribou of the 

Porcupine Herd. The Porcupine Caribou Herd is named for the Porcupine River, which the herd 

crosses on its annual migration from wintering grounds in the United States and Canada south of 

the Brooks Range to its summer grounds on the coastal plain of the Arctic Refuge 400 miles 

away. 19 Some individual caribou travel as much as 3,000 miles in making this round-trip 

migration, making it the largest migration of any land mammal in the world. The Arctic Refuge 

also provides vital habitat for Alaska's declining population of polar bears. 20 The Arctic Refuge 

has the highest density of polar bear dens on Alaska's Coast- approximately 43% of the land 

dens making it the most important onshore denning habitat in America's Arctic 21 The Arctic 

Refuge is increasing in importance for the survival of polar bears as climate change impacts the 

availability of sea ice. 22 

15 U.S. Fish & Wildlife Scrv .. Arctic National Wildlife Refuge: Wildlife & Habitat, 

http://www.fws.gov/refuge/arctic/wildlife habitat.html (last visited Nov. 24. 2015). 16 U.S. Fish & Wildlife Serv .. Arctic National Wildlife Refuge. Wildlife & Habitat, 

htto:i/www.!\;s.gov/rcfuge/arctic/wildlifc hahitathtml (last visited Nov. 24. 2015). 

"See, e.g.. The Wilderness Society. About Wilderness Under Siege. http://wilderness.org/article/aboulllildcmess-undcr-siQ.gQ (last visited Nov. 24. 2015). 18 U.S. Dep't of the Interior. Arctic National Wildlife Refuge. Alaska, Coastal Plain Resource Assessment. 

Report and Recommendation to Congress and Final Legislative Environmental Impact Statement 46 (1987) 

[hereinafter FLEIS]. 19 See I U.S. FISH & WILDLIFE SERV .. ARCIIC NATIONAL WILDLIFE REFUGE: REVISED COMPIUoHENSI\'E 

CONSERVATION PLAN: FINAL ENVIRONMEN'TAL !~!PACT STATE}..IENT 4-99, 4-10 I (20 15) [hereinafter Arctic Refuge 

CCPJ: Caribou in the Arctic Refuge, hHp://arcliccircle.uconn.cdu/AN\VR/anwrcaribou.html (last visited November 

I I. 2105); Alaska Dep't ofFish & Game. Alaska Caribou Herds. 

hUp://\Vww.adfg.alaska.gov/static/spccics/spccicsinfo/caribou/inmgcs/caribou hcrds.jpg (last visited Nov. 24. 20 15). 

"i'olar Bear Population Map, IUCN Species Survival Commission, Polar Bear Survival Group. 

http://pbsg.npolar.no/en/status/population-map.hlml (last visited Nov. 29, 20 15) 21 Amstmp, S. C. and C. Gardner. 1994. Polar bear maternity denning in the Beaufort Sea. Journal of 

Wildlife Management 58:1-10. 22 Endangered and Threatened Wildlife and Plants: Detennination of Threatened Status for the Polar Bear 

4 
66 

Though primarily marine mammal hunters, the Inupiat people of the Arctic- especially 

those in Kaktovik which is on the northern border of the Refuge also use resources from the 

Arctic Refuge, including caribou and other mammals and birds. 23 Living in villages along the 

migratory path of the Porcupine caribou herd, the Gwich'in people of northeastern Alaska and 

northwestern Canada rely physically, culturally, and spiritually on the Porcupine Caribou Herd, 

and have for thousands of years. Gwich'in leader Sarah James has said, "The Gwich'in are 

caribou people . Our whole way oflife as a people is tied to the Porcupine caribou. It is in our 

language, and our songs and stories." 24 Because of their deep reliance on the Porcupine Caribou 

Herd, the Gwich'in consider the coastal plain the "Sacred Place Where Life Begins." 25 

Another area protected by ANILCA was the Izembek National Wildlife Refuge 

("Izembek Refuge"), which is an internationally recognized wetland and world class habitat for 

migratory birds, marine life, and mammals. Located on the tip of the Alaska Peninsula, this 

important ecosystem supports some of America's most iconic wildlife. Characterized by a 

narrow isthmus of rolling tundra filled with pot-hole lakes and surrounded by sheltered wetlands, 

lagoons and shallow bays, this ecologically diverse refuge contains unique and undisturbed 

habitats, including the world's largest eelgrass beds. The ecological values of Izembek were 

recognized long before ANTLCA' s passage. 26 In \980, with ANILCA' s passage, the Izembek 

Range was redesignated as the Izembek National Wildlife RefuBe ("Izembek Refuge") and the 

majority of the Izembek Refuge was designated as Wilderness. 2 The Wilderness lands within 

Izembek provide sanctuary to an array of wildlife, including brown bears, wolves and caribou 

which rely on the Izembek isthmus between Izembek Lagoon and KinzarofLagoon as an 

essential travel corridor. The Izembek isthmus links the Alaska Peninsula National Wildlife 

Refuge and the Unimak Island Wilderness Area of the Alaska Maritime National Wildlife 

(Ursus maritimus) Throughout Its Range; Final Rule, 73 Fed. Reg. 28,212-0L 28,213, 28,257-8 (May 15, 2008). 23 See NAT'L ~SEARCH COtTNCIL, Cl~JULAlWE E~'VIRO:JMEYL\L EEEECTS Of OIL A'iD GAS ACTIVITIES O'i 

ALASKA's NORTH SLOPE 19, 22 (2003) [hereinafter NRC REPORT]; HR 39, Arctic Coastal Plain Domestic loiwrgy 

Security Act of2003; and fiR 770, Morris K [ida!/ ,•lrctic Wilderness Act: Legislmive Field Hearing Befbre the H. 

Comm. on Res., 108th Cong., 1st Sess. 10-14 (Apr. 5, 2003) (testimony of Robert Thompson). available at 

http://bulkrcsonrce.org/gpo.gowhearings/108h/86329.pdf; Robert Thompson. Opinion: ANWR: Huntiug in 

wilderness. not an oil field, Alaska Dispatch News (Feb. 18. 2015). http:/lwww.adn.com/article/20150218/anwrhunting-wildemess-not-oil-field (last visited NaY. 28. 2015). 

" Gwich'in Steering Co nun. ct aL. A Moral Choice for the United States: The I!lonan Rights Implicalionsjhr 

the Gwich 'in of Drilling in the Arctic :Vational Wildlife Reji;ge (2005), available at 

http://mnY.gwichinsteeringcommiltee.org/GSChumanrightsrcport.pdf: see also Arctic .Vational Wildlife Refuge, 

Alaska: Hearing Befhre the S Comm. on Tcnergy & Natural Res .. IOilth Cong. 313 (1987) (Tanana Chiefs 

Conference. Inc, Resolution No. 87-65) (noting tkrt Arctic Village, Venetie, and Old Crow "are extremely 

dependent upon the population and distribution of the Porcupine Caribou herd as a matter of economics. nutrition, 

and cultuml heritage"). 25 Gwich'in Steering Conuu. et aL. supra, at 18. 26 Press Release. U.S. Dep 't of the Interior. Secretary Seaton Creates lzembek National Wildlife Range in 

Alaska (Dec. 7. 1960) (noting that initial efforts to protect the area began in the 1940s and noting that the lzcmbek 

National Wildlife Range was established as a "refuge, breeding ground, and management area for all forms of 

wildlife" because of the area's importance for waterfowl. brown bear, and caribou and "contain[ s l the most 

important concentmtion point for waterfowl in Alaska"): Public Land Order 2216, Establishing the lzembek 

National Wildlife Range (Dec. 6. 1960.) (establishing the lz.embek National Wildlife Range). 

"ANILCA §§ 303(3), 702(6). 

5 
67 

Refuge. Maintaining the integrity of these Wilderness lands in perpetuity is vital to protecting the 

values of the Izembek Refuge that ANILCA sought to protect 

Completing ANILCA's Conservation Vision 

The benefits of ANILCA are evident today as we look around our state. From the 

mountain vistas of Denali National Park, to the calving glaciers of Glacier Bay and Kenai Fjords 

National Parks, to the vibrant coastal plain of the Arctic National Wildlife Refuge, and the 

natural systems and Alaska Native people that conservation areas sustain. ANILCA's benefits 

surround all Alaskans and continue to enrich and benefit not only Alaskans, but all Americans, 

and will do so into the future. 

While ANILCA was expansive in its accomplishments, some issues were left unresolved. 

One of those issues is Wilderness for lands in the Arctic National Wildlife Refuge. Recently, the 

U.S. Fish and Wildlife Service updated the Comprehensive Conservation Plan for the Arctic 

Refuge28 During the public comment period, nearly I million comments were submitted 

supporting Wilderness for the Arctic Refuge. As a result of that effort, the U.S. Fish and Wildlife 

Service, the U.S. Department of the Interior, and the President all made historic 

recommendations that called on Congress to designate nearly all non-Wilderness portions of the 

Arctic Refuge as Wilderness. In doing so, the President stated that "This area is one of the most 

beautiful, undisturbed places in the world. It is a national treasure and should be permanently 

protected through legislation for future generations." 29 Congress should act on the President's 

recommendation and designate those non-wilderness lands as Wilderness. By designating the 

Coastal Plain as Wilderness, Congress would also eliminate the threat of oil and gas drilling to 

the Refuge and permanently protect its irreplaceable landscape for generations to come. 

Threats to ANILCA's Integrity 

Unfortunately, the threats to ANILCA' s integrity began almost as soon as it was passed. 

From land exchanges, to recommendations to open the entire Coastal Plain of the Arctic National 

Wildlife Refuge to oil and gas development, to weak regulations and agency directives for its 

implementation, attempts to weaken ANILCA's protections have been frequent But because of 

the constant involvement of dedicated Alaskans, including Alaska Natives and conservationists 

within the state, and strong opposition from across the nation, many of these threats have been 

defeated or pushed back. 

One current threat to ANILCA's integrity is the challenge to the National Park Service's 

authority to regulate activities on navigable waters in National Parks and Preserves. After more 

than a decade oflitigation, federal authority to guarantee subsistence fishing access on navigable 

waters in ANILCA's conservation system units was settled by a 2013 court decision 30 Despite 

that precedent, the U.S. Supreme Court recently granted John Sturgeon's petition for certiorari 

on this issue. If the Court were to rule broadly that ANILCA divested the National Park Service, 

See Arctic Refuge CCP at S-27: Letter from the President- Arctic National Wildlife Refuge Proposed 

Designations (Apr. 3, 20 15), )rttps:llw}lw. w\ilichous~ggy/thc-prcss-Q[lli:c/2(1_1 5/0-1/0l/lcHe!:!J!l'Sidc.l!!:ill9.!£: 

mtimml-wildlifc-rcfugc-proposcd-dcsignations (last visited Nov. 24, 2015). 29 Letter from the President- Arctic National Wildlife Refuge Proposed Designations (Apr. 3, 2015), 

hltps:l /mvw. whitehouse. gov/thc-press-o ffi cc/20 1 5/N/!13/Iet tcr-prcsidcnt-arctic-national-\1 ildlifc-ref ngc-proposcddesignations (last visited Nov. 24, 2015). 30 John v. United States, 720 F.3d 1214 (9th Cir. 2013). 

6 
68 

and by extension other federal land managers, of the ability to manage navigable waters within 

Conservation System Units ("CSUs") (including National Wildlife Refuges, Wild and Scenic 

Rivers, and National Conservation Areas in addition to National Parks and Preserves), then those 

federal agencies would lose the ability to effectively implement the purposes of ANILCA's 

conservation system units- those purposes include protections for subsistence uses, fish 

habitat, water quality and quantity, and International treaty rights. In the Yukon Charley Rivers 

National Preserve, the National Park Service would be unable to protect the specific ecological 

and cultural values of the Yukon and Charley Rivers that the Preserve was created to protect. 

In addition, Congress created a priority for subsistence uses offish and wildlife in Title 

VIII because it found subsistence uses to be essential to "Native physical, economic, traditional, 

and cultural existence and to non-Native physical, economic, traditional, and social 

existence." 31 If the Court were to rule broadly that ANILCA divested the National Park Service 

of authority, then by extension, the Secretary of Interior would lose her authority to regulate and 

protect the subsistence priority on federal lands and waters. 

ANILCA already provides for reasonable access to and development of non-federal lands 

within conservation system units. Congress should thus vigilantly defend the current 

management approach to navigable waters. 

ANILCA's Access Provisions- Balancing Use and the Interests of Other Land Owners 

In Title XI of ANILCA, Congress ensured that reasonable access would be provided to 

and over federal public land. People engaged in traditional activities such as hunting, fishing, 

and berry picking may access public lands by snowmachine, motorboat, airplane and 

nonmotorized means (such as dogsleds). 32 ANILCA also guarantees a permanent right of access 

to private or state land inholdings, including subsurface rights. 33 And anyone holding a valid 

mining right or other valid occupancy right surrounded by public lands is guaranteed access for 

economic and other purposes. Access is also granted for travel to and from villages and 

homesites. 34 Finally, ANILCA grants a temporary right of access to the State or private land 

owner to conduct survey, geophysical, exploratory or other temporary uses. 35 

Climate Change 

While climate change was not a driving force behind ANILCA's passage, ANILCA's 

benefits in the face of climate change cannot go unremarked. Alaska is experiencing the impacts 

of climate change at a higher rate than anywhere else in the nation. The state's average 

temperature has risen 4 degrees Fahrenheit in the last 50 years, permafrost is melting, and 

significant portions of the coast are eroding into the sea. ANILCA's protected ecosystems 

provide scientists the unrivaled ability to study, understand, and suggest ways to offset the 

impacts of climate change, and wildlife and communities critical opportunities to adapt to it. The 

value of protecting large, intact ecosystems as ANILCA becomes increasingly important every 

year. 

16 U S.C.~ 3111. 

"16 U.S. C.§ 3170. 33 ld. § 3170(b). 

" 

16 U.S.C. § 3171. 

7 
69 

Conclusion 

ANTLCA truly was monumental in what it accomplished. It was the culmination of 

extensive work by conservation, Alaska Native, state, and federal interests. While some work 

remains to be done, in large part it has accomplished its central goal of protecting national public 

interest lands on a landscape scale. Through ANTLCA, Congress also helped protect access of 

Alaskans to subsistence resources, and the interests of a young State in access to its 

unprecedented wealth in state-owned lands and resources. While there remain areas where 

Congress should act to complete ANILCA's vision and areas where Congress can act to protect 

and enhance ANICLA's goals, the central vision and purpose of ANTLCA remains strong today. 

It has safeb>uarded some of the nation's most cherished public lands for the benefit future 

generations. Congress should continue to reject weakening amendments to ANTLCA. 

When it comes to ANTLCA's impact on climate, Congress also proved prescient. The 

combustion of fossil fuels leads to climate change, which is having devastating effects on the 

world and within Alaska. To deny that is to deny science and reality. Oil is also a finite resource. 

For these two reasons Alaska must transition to a more diverse and sustainable model for the 

future. Failing to do so places future generations of Alaskans at even greater environmental and 

economic risk. 

ANILCA has ensured that we also have sustainable environmental resources that are the 

envy of the world and which will continue to be an important foundation for jobs and the 

economy of Alaska. This is a legacy both to be proud of and to advance into the future. 

Thank you for the opportunity to address you today. 

8 
70 

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 
71 

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:] 
72 

Joshua M. Kindred, Environmental Counsel, Alaska Oil & Gas Association 

Chairman Murkowski, Ranking Member Cantwell and Members of the Committee, I 

am Joshua Kindred, Environmental Counsel for the Alaska Oil and Gas Association. 

The Alaska Oil and Gas Association (AOGA) is a professional trade association 

whose mission is to foster the long-term viability of the oil and gas industry for the 

benefit of all Alaskans. We represent the majority of companies that are exploring, 

developing, producing, refining, or marketing oil and gas on the North Slope, in the 

Cook Inlet, and in the offshore areas of Alaska. 

AOGA appreciates the opportunity to address the Committee regarding the 

implementation of ANILCA and the role that it has played on oil and gas 

development in Alaska. In reality, oil and gas operations in Alaska are 

academically and practically removed from traditional ANILCA issues. However, 

that is simply because the ANILCA issues affecting industry are often resolved, for 

better or worse, absent private sector involvement. Nevertheless, ANILCA has over 

the past thirty-five years effectively dictated the scope of natural resources 

development in Alaska. 

In order to properly address ANILCA's role on Alaska's natural resource 

development, one must understand both the impetus for the legislation and the 

compromise that it ultimately represented. I will spare this committee a lengthy 

history dissertation, but the context of ANILCA's implementation is necessary to fully 

evaluate its ongoing role in Alaska. 

The Alaska Native Claims Settlement Act, or ANCSA, represented the federal 

government's first attempt at resolving Alaska Native aboriginal rights. Ultimately, 

ANCSA served to extinguish aboriginal land rights in Alaska through the grant of 

44 million acres of lands and over $950 million in compensation to Alaska Natives. 

To accomplish this goal, ANCSA created an arrangement by which Native 

Corporations could identify lands for subsequent conveyance. This was by no 

means a simple or linear process, but for our purposes today, it is important to note 

that almost a half-century has passed and still ANCSA lands have yet to be fully 

conveyed. Nevertheless, the enactment of ANILCA became necessary in response to 

a series of executive withdrawals of federal lands in Alaska for parks, refuges, and 
73 

wilderness purposes, far in excess of what was originally contemplated in the 

compromise that gave rise to ANSCA, which will be a consistent theme in my 

testimony. The most notable of these withdrawals occurred on December 1, 1978, 

when President Carter designated 56 million acres as national monuments. By 

1 980, the executive branch had withdrawn over 1 00 million acres of federal land. 

In response, Congress enacted legislation aimed at regulating Alaska lands under a 

comprehensive and permanent program. 

During the congressional discourse g1vmg rise to ANILCA, a wide spectrum of 

Alaskan stakeholders articulated Alaska's needs and concerns. Namely, Alaskans 

sought to revoke all 1 978 monuments and executive withdrawals, receive full 

Statehood and ANCSA land entitlements, exclude economically important natural 

resources from conservation areas, guarantee that traditional land uses continue on 

all lands, and preclude administrative expansion of conservation units. Alaskan 

interests were represented in the House debates, as Congress attempted to achieve 

the proper balance between development and conservation, which highlights an 

important point: ANILCA was not simply legislation aimed at advancing 

conservation and preservation. 

As President Carter stated upon ANILCA's ratification: "It 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." Representative Udall echoed 

that sentiment, affirming that ANILCA allowed for "the development of Alaska [to] 

go forward with balance." At the signing of the bill, Senator Stevens concluded: 

"Over half of the Federal lands that will remain under control of the Department of 

Interior will be in Alaska after the passage of this bill. Over half of the 

hydrocarbon resources of the United States are in Alaska's lands. We know that the 

time will come when those resources will be demanded by other Americans." 

ANILCA represented substantial congressional and ideological compromise, 

acknowledging that considerable conservation withdrawals could not be achieved 

without accommodating the interests of the State of Alaska and Alaska Natives. As 

to the former 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 perspective. 
74 

However, as to one of the other primary goals of ANILCA, thirty-five 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. 

This is neither a new or novel assessment of ANILCA. Roughly twenty years ago, the 

State of Alaska's ANILCA team provided a report detailing the "deteriorating 

relationship between the State and Department of Interior. That report concluded 

that the federal agencies were increasingly failing to coordinate with Alaska and 

ignoring the state's comments as decisions were being made at higher levels in 

Washington, D.C without a full understanding of ANILCA provisions, its intended 

cooperation and consultation, and lacking the Alaska context. And today, an 

ongoing divergence from the ANILCA's carefully considered compromises over the 

subsequent decades has resulted in ever-increasing conflicts with federal agency 

decisions and diminished involvement by the public, Native corporations, and state 

in federal decisions affecting public uses and adjacent landowners. This illustrates 

federal agencies' poor understanding of ANILCA and its consultation requirements, 

particularly given that federal agencies increasingly choose to take actions 

unilaterally. Simply stated, federal agencies are not engaged in genuine 

consultation with Alaskans and state agencies, and it should be noted that merely 

giving notice does not constitute consultation. Federal regional leadership will often 

alter significant policy interpretations affecting management of federal lands 

without notice and increasingly defer such decisions to the political leadership in the 

agencies' national offices, which, of course, fails to provide opportunity for the 

appropriate consultation envisioned by ANILCA. 

Nonetheless, these miSgivings and issues, while crucial, do not represent an 

indictment of ANILCA. Rather, they serve to highlight that the designed flexibility 

inherent to ANILCA has failed to come to fruition. In that vein, and as it relates to 

natural resource development in Alaska, I would advocate that federal agencies 

embrace the collaborative design found in ANILCA. We must all strive to capture 

the balance originally envisioned by the drafters of ANILCA, and not forget the 

broad concessions to development articulated in its provisions. To better understand 

ANILCA's true endeavor, one need look no further than the Act's "statement of 

purpose": 

This Act provides sufficient protection for the national interest in the 

scenic, natural, cultural and environmental value on the public lands in 
75 

Alaska, and at the same time provides adequate opportunity for 

satisfaction of the economic and social needs of the State of Alaska 

and its people; accordingly, the designation and disposition of the 

public lands in Alaska pursuant to this Act are found to represent a 

proper balance between the reservation of national conservation 

system units and those public lands necessary and appropriate for 

more intensive use and disposition. 

It is impossible to discuss the "economic and social needs of the State of Alaska and 

its people", without discussing oil and gas development. Currently, proceeds from 

oil and gas development provide the State of Alaska with billions in annual 

revenue, representing nearly 90% of the State's unrestricted general revenue. 

ANILCA does play a substantial role on 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 

and oil and gas development without mentioning Section 1 002, which mandated the 

Coastal portion of the Arctic National Wildlife Refuge be studied, and provided for 

a potential path to oil and gas exploration and development. In 1 987, following 

detailed and comprehensive studies, the Department of Interior recommended 

opening the area for oil and gas exploration and development. And today, 

decades later, even absent Congressional action, there is little room to debate the 

extraordinarily resource potential of ANWR's Coastal Plain, which USGS estimates 

to contain over 1 0 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 XI. In the oil and gas context, the key examples pertain to proposals to 

transport North Slope natural gas to market. The Alaska Pipeline Project (APP), a 

joint undertaking of Exxon Mobil and TransCanada, that would have resulted in a 

natural gas pipeline from the North Slope into Canada, connecting to existing 

pipeline infrastructure to transport the gas to Midwest refineries and markets, 

concluded that it could neither navigate the procedural requirements of ANILCA 
76 

Title XI where a portion of the pipeline traversed a national wildlife refuge nor 

successfully accomplish a land exchange. The APP is no longer a viable project, 

and plans for transporting North Slope natural gas have shifted to the Alaska LNG 

Project, which is a proposal supported by ExxonMobil, ConocoPhillips, BP and the 

State of Alaska. Alaska LNG is also struggling to envision a successful path through 

ANILCA Title XI because a small 7-mile portion of the most direct pipeline route 

would follow the Parks Highway as it traverses Denali National Park. 

It is difficult to succinctly summarize the problems posed by ANILCA Title XI for 

complex projects, such as Alaska LNG. Generally stated, Title XI establishes an 

inflexible and likely impracticable process for obtaining federal permits for 

complex projects such as the APP and Alaska LNG. Title XI 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 

significant issue is that Title XI mandates additional substantive requirements that 

fundamentally alter the authority of any involved federal agency to condition or 

disapprove a proposed project. Under Title XI, 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. 

In regards to mineral exploration and production, the Red Dog mine represents an 

example of how Title XI failed Alaska. NANA and Cominco (now Teck) decided, 

after careful consideration, that neither Title XI of ANILCA nor the existing land 

exchange provisions of ANCSA and ANILCA could be effectively navigated. As a 

result, the relevant parties chose to pursue congressional approval for a land 

exchange agreement between the Secretary of the Interior and NANA, which 

Congress subsequently approved. See Act of Sept. 25, 1 985, Pub. L. No. 99-96, 

99 Stat. 460 (adding ANCSA § 34, 43 U.S.C. § 1 629). 

However, despite these numerous issues, there are also examples of ANILCA 

operating in a manner that corresponds with the Congress's initial intent: 

ANILCA § 906, which clarified the ability of the State to select and receive its land 

entitlements, notwithstanding many historic and continuing withdrawals of land in 

Alaska, and clarified that a "tentative approval" under section 6(g) of the 
77 

Statehood Act is the legal equivalent of a patent without benefit of a formal 

survey. 

ANILCA § 901 (as amended in Aug. 1988), which provided for conveyance, by 

operation of law, of any remaining federal interest in lands under meanderable 

waters to the adjoining upland owners, and for not counting such acres against the 

entitlements of the State and Native corporations. 

ANILCA § 907 (as amended and supplemented in Feb. 1988), which enacted 

automatic land bank protections for Native corporation lands, until they are sold, 

leased, or developed. 

Title XIV of ANILCA allowed for the approval of numerous negotiated ANCSA 

conveyances and land exchanges 

ANILCA § 1431, which has been particularly important for oil and gas exploration 

and development in the Colville Delta and eastern NPR-A. 

Together, we can design a prudent path forward that recognizes the dual needs of 

Alaskans. 
78 

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. 
79 

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:] 
80 

Anna M. Seidman 

Director of Litigation 

Safari Club International 

Chainnan Murkowski, Senator Cantwell, and members of the Committee: 

My name is Anna Seidman and I am Director of Litigation for Safari Club 

International. I am particularly honored to have the opportunity to testifY today 

before this Committee. I speak today on behalf ofthe most influential hunting 

organization in this country. Safari Club International is a nonprofit organization 

with offices in Tucson, Arizona and Washington, D.C. Our missions include 

protecting the freedom to hunt and promoting wildlife conservation worldwide. 

Safari Club International's Interest in ANILCA 

Safari Club has over 48,000 members and 177 chapters throughout the world. We 

have two Alaska-based chapters, the Alaska Chapter and the Alaska Kenai 

Peninsula Chapter. Both are extremely active in promoting and protecting hunting 

and wildlife conservation in Alaska. Safari Club has members who live in Alaska 

and others who travel to Alaska for the purpose of enjoying the state's world-class 

hunting opporttmities. These members hunt for many purposes, both subsistence 

and non-subsistence, and all of these members are affected by the Alaska National 

Interest Lands Conservation Act or ANTLCA. They are passionate hunters and 

conservationists. Together they, and we who advocate for them, want to make sure 

that hunting and the wildlife resources that provide those hunting opportunities in 

Alaska remain available now and long into the future. 

It is quite fitting that I represent Safari Club today because it was ANTLCA that 

brought me to Safari Club and turned me into a wildlife and htmting litigation 

attorney. ANILCA also was responsible for the development of Safari Club's 

litigation advocacy department. Sixteen and a half years ago, I joined Safari Club 

solely for the purpose of litigating a lawsuit that Safari Club had filed in federal 

court to challenge the Federal Subsistence Board's administration of ANTLCA. 

Our lawsuit did not challenge the law itself. It challenged the way that the federal 

agencies were administering ANILCA. 

In 1999, Safari Club challenged, among other things, the lack of representation 

from non-subsistence interests on the Regional Advisory Cmmcils that advised the 

Federal Subsistence Board in regard to determinations pertaining to priority access 

to wildlife resources on federal lands in Alaska. As a result of our lawsuit, the 

federal government acknowledged its obligation to fairly balance the Regional 
81 

Advisory Councils with representation from both subsistence and non-subsistence 

interests. That one case led Safari Club to hire a litigation attorney and to 

participate in many lawsuits involving hunting, importation, wildlife conservation, 

land management, and resource planning. Today, Safari Club is home to a 

litigation department with several attorneys who dedicate their time exclusively to 

advocating for hunting and sustainable use conservation throughout the world. 

ANILCA'S Purpose. 

Just as we did back in 1999, Safari Club today understands that ANILCA's 

purpose is to provide a balance between the needs of the user groups who must 

share Alaska's resources. Congress designed ANILCA to provide access to 

wildlife resources for Alaska's subsistence communities but to make sure that nonsubsistence users maintained their access in all situations where sufficient wildlife 

resources are available. Congress tasked the administrators of ANILCA to 

conserve those resources to make sure that Alaska's hunters have wildlife to hunt. 

ANILCA directed the Secretaries of the Department of the Interior and the 

Department of Agriculture to manage resources to fulfill the needs of the 

communities that depend upon these resources as well as "to provide for the 

maintenance of sound populations of, and habitat for, wildlife species of 

inestimable value to the citizens of Alaska and the Nation," 16 U.S.C. § 3101. 

Congress directed these federal managers to fulfill subsistence and non-subsistence 

needs on federal lands in accordance with sound management and recognized 

scientific principles of fish and wildlife conservation. 16 U.S.C. § 3112. 

The drafters of ANILCA did not give federal managers exclusive authority in 

administering ANILCA. Instead, Congress explained that to protect "the 

continued viability of all wild renewable resources in Alaska," those administrators 

were obligated to "cooperate with adjacent landowners and land managers, 

including Native Corporations, appropriate State and Federal agencies, and other 

nations." 16 U.S. C. § 3112. In other words, Congress did not intend for the 

federal agencies to operate as though they alone had the responsibility or authority 

to make decisions about how to conserve and manage Alaska's wildlife resources. 

Congress tasked the Secretaries with the duty to collaborate with the state of 

Alaska, among others. 

2 
82 

Recent Actions by Federal Agencies Contravening ANILCA. 

Recently, two of the federal government agencies that are tasked with 

administering ANILCA have taken actions that abandon the intent of Congress 

concerning ANILCA's protection ofhtmting opportunities. Specifically, the 

National Park Service and the U.S. Fish and Wildlife Service have each invoked 

ANILCA as the basis of decisions to deprive Alaska's residents, both subsistence 

and non-subsistence htmters, of hunting opportunities. Both of these agencies have 

taken or intend to take positions that interfere with Alaska state management of 

wildlife that supports hunting opportunities. The National Park Service and the 

U.S. Fish and Wildlife Service are reinterpreting ANTLCA to require a "hands-off' 

approach to wildlife management even if that approach would lead to the complete 

disappearance of huntable populations of wildlife. 

National Park Service 

The National Park Service finalized regulations on October 23, 2015 that prohibit 

several forms of hunting on National Preserves in Alaska. These regulations 

unabashedly target "sport" or non-subsistence hunters, yet the rules actually 

prohibit methods that are often practiced by subsistence hunters in the hunting of 

wolves, bears and coyotes. These regulations send the message that the National 

Park Service is uncomfortable with certain methods of take and that the Park 

Service intends to be the final judge of what are and what are not "ethically 

appropriate" methods of hunting. Despite the State of Alaska's determination that 

those types of hunting are legal and appropriate within the state, the National Park 

Service wants to impose its contrary, and emotionally-based, value system on 

legally mandated hunting on National Preserve lands in Alaska. 

In this action, the Park Service is taking rather lightly ANILCA's requirement that 

federal agencies "cooperate" with Alaska state wildlife managers. The National 

Park Service seems to interpret compliance to require only that the Park Service 

demand that the Alaska Board of Game adopt the Park Service's prohibitions. If 

the Board of Gan1e refuses, the Park Service then promulgates regulations that 

contradict Alaska State hunting rules and that undermine Alaska statutory 

obligations to provide hunting opporttmities to its citizens. Instead of cooperating 

with the State of Alaska in addressing this difference of opinion on hunting 

methods, the National Park Service handed out edicts and then moved ahead with 

regulatory prohibitions based on the National Park Service's opinions of what 

constitutes appropriate hunting in Alaska. 

3 
83 

For all hunters, the way that the National Park Service is imposing its personnel's 

value judgments about what constitutes appropriate htmting methods is a concern 

that doesn't restrict itself to Alaska. This subjective and emotionally based 

approach to what constitutes appropriate methods of hunting could extend to 

hunting authorized on National Park Service lands throughout the U.S. 

The October 23rd regulations are not the only example ofthe National Park 

Service's attempt to take action that overrides State authmity to regulate hunting 

activities in Alaska. Safari Club member John Sturgeon has a case before the U.S. 

Supreme Court that challenges the National Park Service's effort to exercise its 

authority to restrict the use of non-federal waters and lands located within National 

Park Service boundaries. The National Park Service prohibited Mr. Sturgeon from 

operating his personal hovercraft on a river rullliing through a National Preserve, 

despite the fact that the navigable water at issue is state owned and that the state 

permits hovercraft use on state owned waterways. Safari Club has filed an amicus 

brief in support of Sturgeon's arguments and oral argument is scheduled for 

January 20th of next year. 

The U.S. Fish and Wildlife Service 

Similarly, the U.S. Fish and Wildlife Service has am10unced plans to revise its 

regulations for wildlife management and htmting in Alaska. The Fish and Wildlife 

Service wants to codifY the concept of so-called "natural diversity" to manage 

wildlife resources on National Wildlife Refuge lands in Alaska. Like the Park 

Service, the Fish and Wildlife Service intends to ignore the intent of ANILCA's 

drafters. Instead of recognizing the 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. The Fish and Wildlife Service 

refuses to recognize the State of Alaska's need to balance Alaska's predator and 

prey populations. Instead, the FWS prefers to allow growing predator populations 

to decimate the very prey populations upon which htmters depend for both 

subsistence and non-subsistence hunting opportunities. In adopting this approach, 

Fish and Wildlife Service leadership ignores the specific definition for "natural 

diversity" provided by Senator Stevens, one of the key drafters of ANILCA's 

complicated and balanced approach to wildlife management on federal lands in 

Alaska: 

The term is not intended to, in any way, restrict the authority of the 

Fish and Wildlife Service to manipulate habitat for the benefit offish 

4 
84 

or wildlife populations within a refuge or for the benefit of the use of 

such populations by man as part of the balanced management 

program mandated by the Alaska National Interest Lands 

Conservation Act and other applicable law. The term also is not 

intended to preclude predator control on refuge lands in appropriate 

instances. 

(emphasis added) Congressional Record, Dec. 1, 1980, S-15132. 

Like their National Park SeiVice colleagues, the Fish and Wildlife SeiVice 

considers its duty to "cooperate" with Alaska State wildlife management officials 

to be satisfied by the delivery of edicts and the adoption of regulations that 

contradict and undermine Alaska State regulations and statutory wildlife 

management mandates. The Fish and Wildlife SeiVice is expected to publish a 

proposed version of those regulations in the next few months, and you can be sure 

that Safari Club and many others will be vigorously opposing them. 

Call for Action 

In conclusion, on the occasion of ANILCA's anniversary, Safari Club asks this 

Committee to: 

• remember the original intent of ANILCA's drafters; 

• remind federal agency administrators of their ANILCA duties to manage 

wildlife resources for the benefit of Alaska's hunters; and 

• make certain that resource management decisions are made in cooperation 

with the State agency that is responsible for state-wide conseiVation and 

management of wildlife, including the \\ildlife that are fmmd on federal 

lands. 

Only through an approach that maintains a balance between providing for the 

needs of the hunting communities and ensuring long term sl!1Vival of all of 

Alaska's wildlife resources, both predators and prey, can ANILCA's obligations be 

fulfilled. 

Thank you for this opportunity to provide this testimony. 

5 
85 

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 
86 

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 re-
87 

source 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:] 
88 

Testimony of 

J. P. Tangen, Attorney at Law 

Before the Energy and Natural Resources Committee 

Of the United States Senate 

December 3, 20 J 5 

Madam Chairman, Members of the Committee, I am honored to address you on this 35th 

Anniversary of the signing of the Alaska National Interests Lands Act of 1980. My name is J.P. Tangen. 

I am an attorney in active practice in the State of Alaska. [was first drawn to Alaska in 1975, in no small 

part because of the pending detcrn1ination that "up to, but not to exceed, eighty million acres of 

unreserved public lands in the State of Alaska . [should be withdrawn] for addition to or creation as 

units of the National Park, Forest, Wildlife Refuge, and Wild and Scenic Rivers Systems ... " To a young 

attorney-advisor with the Department of Commerce here in DC, 80 million acres of land seemed like an 

awful lot of land. 

Accordingly, I relocated to Alaska and have fought in the trenches ever since. My primary 

vocation over the decades has been on behalf of the mining industry, although J did serve as Alaska 

Regional Solicitor for the Department of the Interior in the 1990's. I have served for many years as cochaimlall of the Alaska Miners Association· s Federal Oversight Committee, alld in that capacity have 

participated in the analysis and comments on hundreds of initiatives from federal agencies that would 

unilaterally burden or preclude development on federal land in Alaska in direct violation of the clear 

language in ANILCA. 

In 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 Lalld Promises Made in ANILCA 20 Years later . 

J commend that book to you for your bedtime reading; it is relatively short and Call easily be digested in 

an hour or so. 

Among the articles included in d(2), Part 2 is the testimony of Steve Borell, then Executive 

Director of the Alaska Miners Association, before this very Committee on August 10, 1999. Jt can be 

seen by his testimony that there were many open wounds on the table after 20 years of experience under 

ANJLCA. Everything Mr. Borell said then remains tme to this day, but the egregious misconduct of the 

USPS, the BLM, the NPS and the FWS has been compounding over the ensuing 15 years. 

I was asked to offer testimony at this time on ANILCA, including perspectives on the Act's 

impacts in Alaska alld suggestions for improvements to the Act. I shall 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 industries, is that ANILCA was held out to be a great compromise, with two 

cornerstone guarantees: first, that there would never be allY more withdrawals of public land from "the 

economic and social needs of the State of Alaska alld its people." That language is in section 101 of the 

Act. Second, that under section 1110, in exchange for restrictive burdens on what turned out to be well 

over 100,000,000 acres of federal land 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 ANJLCA. As Senator Ted Stevens observed in his 

Preface to d(2), Part 2. during the twenty years after passage Alaskans had witnessed many 

disappointments and continued to do so. 
89 

Pursuant to mandate, I will list some of the problems that have emerged over the past 15 years 

and are ongoing to this day; then I will propose 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. 

IMPACTS OF ANILCA 

l. Resource Development is blocked on Federal Lands in Alaska by USFS BLM. NPS and FWS. 

a. The National Park Service has employed a variety of tools to ensure that valid existing 

rights to develop mineral resources within NPS units in Alaska are never developed. In the case of 

Orange Hill, for instance, an extremely valuable copper deposit, comprising patented land, was deprived 

of access by the Park Service, on the one hand; and, on the other, because it had no authorized access, the 

owners were denied adequate compensation. 

b. l11e owners literally went through the administrative process twice, to Congress twice 

and to the courts twice seeking redress. Finally they gave up. 

c. Do not assume, however, that because a specific in-holding is referred to it is an isolated 

event. Comparable sagas occurred in other areas of the Wrangell-St. Elias National Park, Denali National 

Park, Glacier Bay National Park, Cape Kruscnstcm National Monument and Bering Land Bridge National 

Reserve. 

d. l11e methodology used by the NPS is very predictable. 

i. First a penni! must be applied for. l11at often requires an Environmental Impact 

Statement for which, among other things, requires the applicant to pay; 

ii. Then, the penni! is denied and the applicant is told that he can never get a permit 

no matter what he says and that he should sell the property to the NPS; 

iii. Then an NPS-approved appraisal is conducted which disregards any value for the 

resource that cannot be developed under NPS rules; 

iv. l11en the applicant turns to the courts. where uns)mpathctic federal judges, 

arbitrarily constrained by the Administrative Procedures Act (hereafter "AP A'') and at the instance of 

Department of Justice attomcys with an agenda, rule against the applicant; 

v. Then the applicant is reduced to appealing to the Ninth Circuit which never saw a 

resource development project it didn't want to scuttle. 

c. l11is dance has various mutations, but the end result is always the same. 

2. Access Across Federal Lands in Alaska is blocked bv USFS, BLM. NPS and FWS. 

a. A similar exercise occurs with regard to access. 

b. The National Forest Service has the right and obligation to permit logging roads 

throughout the Chugach and Tongass National Forests. 

2 
90 

c. 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. 

d. Both National Forests are known to be replete with marketable timber and mineral 

resources: however, as the result of the stridence of the USFS 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. 

c. This is not to suggest that the NPS is any better with regard to access, witness the Hale v. 

NPS case and the Sturgeon case: or that the Fish and Wildlife Service is S}mpathetic, witness the King 

Cove Road problem. 

f. The BLM, in its unique way, has detcnnincd to create gigantic "Areas of Critical 

Environmental Concern'' that have all the earmarks of barred restrictions on land use and access across 

public lands, even though there is no particular justification for doing so other than their '·planning 

process. 

g. The BLM most recently has 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 critical comments fall on deaf cars, and the agency docs what it pleases 

without fear of reprisal. 

SUMMARY 

Although blocking access across and development on federal lands was thought to be clearly precluded 

by ANILCA, these preclusions have been ignored or actively resisted by the land managing agencies. 

RECOMMENDATIONS 

Congress should prepare legislation that makes it clear: 

I. That ANILCA is an action-forcing statute that is binding on the federal land managing agencies 

in Alaska and under the direct supervision of the inspectors general ofthc respective agencies: 

2. That implementation ofFLPMA and other agency organic acts are deemed to have been an1ended 

by ANILCA and are to be interpreted consistently with tl1c legislative intent of ANILCA, facilitating 

access across and resource development on federal lands in Alaska managed by the USFS, the BLM, the 

NPS and the FWS; 

3. That notwithstanding the APA, the federal courts arc directed to exercise plenary authority over 

the land managing agencies and to consider applications for review of decisions that deny private citizens 

access through and across Conservation System Units (often called "CSUs") created or enlarged by 

ANLLCA de novo and upon request: 

4. That all waters, rivers, streams and lakes in Alaska are hereby deemed navigable and subject to 

the exclusive jurisdiction of the State of Alaska, unless the affected land managing agency can prove by a 

preponderance of the evidence in federal district court that a specific reach or impoundment is not 

navigable; 
91 

5. That all existing logging roads and all historic RS 2477 rights-of-way already identified by statute 

by the State of Alaska across federal public lands in Alaska arc hereby deemed granted, including 

alternative routes dictated by weather and topographic conditions, and including a 50-foot-from-thecenterline width and such borrow pits of sufficient proximity and size as may be required by the builder to 

ensure economic maintenance: 

6. That permits, environmental impact statements and all other studies and documentation required 

by an agency shall be paid for exclusively by the lead agency out of appropriated funds; 

7. That applications and amendments to applications for access or development activities on 

inholdings shall be deemed approved unless denied for cause within one year after having been initially 

filed; 

8. That all Public Land Orders issued under the authority, in whole or in part, of ANCSA or 

ANILCA or related to ANCSA or ANILCA are revoked effective one year after the passage of this 

legislation unless renewed by reference to other authority; 

9. That wetlands within CSUs and Wilderness Areas in Alaska be deemed sufficient to fully satisfy 

the Clean Water Acfs mitigation requirements in lieu of replacement or monetary compensation for any 

resource development projects regardless of federal, state, local, or private ownership. 

10. That the Alaska Land Use Council as described in ANILCA Title XII is re-established and 

charged with the responsibility of ensuring that the promises of ANILCA are kept; 

ll. That the Quiet Title Act shall not apply to the transfer to the State of public lands in Alaska; and 

12. That the Mining in the Parks Act shall not apply to CSUs in Alaska. 

I very much appreciate the opportunity to present these few points and look forward to 

supplementing these comments for the record. 

Thank you. 

4 
92 

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. 
93 

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 
94 

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 re-
95 

peat, 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 
96 

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. 
97 

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. 
98 

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:] 
99 
100 

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. 
101 

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 
102 

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. 
103 

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 wild-
104 

life 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 
105 

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. 
106 

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. 
107 

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. 
108 

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 
109 

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.] 
(110) 

APPENDIX MATERIAL SUBMITTED 
111 

U.S. Senate Committee on Energy and Natural Resources 

December 3, 2015 Hearing: ANILCA 

Answers to Questions for the Record Submitted to Senator John Coghill 

Question 1: I was particularly interested in your and the Commission's written discussion on how 

BLM has used new land designations to effectively place far more land into protected status in 

Alaska, protecting the land more fully in many ways than would be the case iflands had been 

placed in wilderness in Alaska given the expressed permission for cabins, and for motorized 

accessing Alaska's wilderness areas. You talk about BLM repurposing the Public Land Order 

withdrawals of the 1970s, since Congress specifically prevented a 2010 Wild Lands policy from 

going into effect, by overlaying the lands covered by PLO's with new designations: "Areas of 

Critical Environmental Concern," areas of"wilderness character," and by creating "new landscapelevel planning processes" to protect far more lands than ANILCA ever allowed. Can you or the 

Commission explain specifically how ANILCA's no more clause of Section 1326, or the more 

general clause in Section 101 (d), or any other provision in the Act or because of congressional 

intent, should block BLM from using its general land planning processes required by the Federal 

Land Management Planning Act (FLMPA) to regulate its lands in the state? 

Answer: The Commission would not argue in favor of prohibiting the BLM from using the land 

planning processes outlined in FLPMA, only to employ them in Alaska consistent with the letter 

and intent of ANILCA. As described in the testimony, both the Wild Lands policy and the 

inventory of lands with "wilderness character" bypass specific direction in AN1LCA §1320. Also 

as noted, the repurposing of obsolete withdrawals is an end-run around the prohibition on 

withdrawing lands in ANILCA § 1326(a) without Congressional approval. All prohibitive 

administrative designations also exist without the ANILCA provisions purposefully intended for 

prohibitive designations, like guaranteed access to inholdings or for traditional activities and travel 

to and from villages or homesites. 1 

What follows is an arrant generalization to illustrate the point. Imagine Congress was weighing two 

types of land in drafting ANILCA: federal public lands managed for multiple uses and conservation 

system units (CSU). To create CSUs, Congress took many existing management designations like 

parks, refuges, forests, wild and scenic rivers and wilderness and, considering the "Alaska context" 

(including relative size, traditional uses, existing communities, nascent infrastructure, etc.), 

enhanced and tailored the capacity for public use and development in those designations in Alaska. 

In this balancing act, the remaining public lands and the BLM' s multiple use mandate provided a 

constant. By using land use plans to dramatically limit the capacity for public use and responsible 

development on those lands, the BLM has administratively shifted the balance Congress struck in 

ANILCA. 

Further, even under FLPMA, authorizations for prohibitive administrative designations have criteria 

and sidebars which should not be unilaterally expanded to the point of insignificance. Alaska 

possesses an overwhelming abundance of significant and highly valued natural resources, which is 

what made the "d2 debates" on what to designate as a CSU both easy and challenging. The first 

version of H.R. 39 proposed 145 million acres of designated wilderness! Since FLPMA and 

implementing regulations and policies provide standards for prohibitive administrative designations 

that almost any acre in Alaska could satisfy, some other reductive metric must be employed in 

managing lands where everything is "special." 

J The Title XI access provisions described here only apply to conservation system units, national recreation areas, 

national conservation areas, or U10se public lands designated as wilderness study. 
112 

More importantly, everything ANILCA represents- particularly but not exclusively the "no more" 

clauses- requires some manner of self-control in using this broad discretion to limit public use in 

Alaska. Areas of Critical Environmental Concern (ACEC) provide a useful example of where a 

grievously expansive interpretation of a FLPMA authorization is patently inappropriate given the 

"Alaska context" recognized by Congress in ANILCA. 

ACEC designation is a meaningful tool where "special management attention is required." 2 

Criteria for designation require "relevant" and "important" resources or values which prompt the 

limitation of activities otherwise allowed under a land use plan. 3 Other available management tools 

(e.g., permit stipulations, trail designations) must be insufficient, as designation is not warranted 

where the activities being limited "could not result in harmfitl ~fleets to the important and relevant 

resource values[.]"4 However, the BLM's application of these criteria and liberal restrictions on 

public use in Alaska are highly subjective, overly inclusive and scantily justified, especially 

considering the millions of acres being set aside absent any consideration of access and public use 

guarantees provided for lands designated under ANILCA. 

The first criterion of"relevance" requires presence of"a significant historic, cultural, or scenic 

value; a fish or wildlife resource or other natural system or process; or natural hazard." 5 As noted 

above, the vast majority of federal public lands in Alaska possess one or more of these 

characteristics, and this criterion only requires something be present. There is scope for 

discretionary limits, however, as BLM policy uses specific adjectives like "rare," "essentiaf' and 

"endangered, sensitive or threatened." 6 These adjectives only describe examples of"relevant" 

resources, but they are illustrative of an inherent singularity which should also be present. 

The second criterion of"importance" requires the "value, resource, system, process or hazard' 

identified under "relevance" to have "substantial significance and values," generally meaning 

"more than local significance and special worth, consequence, meaning, distinctiveness, or cause 

for concern." 7 On its face, this criterion also fails to offer a sufficient distinction for areas in Alaska 

that could and would not merit designation as an ACEC. Yet, the "importance" criterion also has 

scope for discretionary limits in BLM policy, which describes qualifying areas as ''ji·agile, sensitive, 

rare, irreplaceable, exemplmy, unique, endangered, threatened, or vulnerable to adverse change."R 

Even without ANILCA, where each proposed designation ranges from hundreds of thousands to 

millions of acres, the calculus here must be given some context, meaningful sidebars, relative scale 

and considerable justification, otherwise designations are simply dividing up planning areas 

according to common landscape specifics. With ANILCA, however, what would be a matter of 

simply requiring more common sense in discretionary decision-making becomes a mandate. 

FLPMA § lO:l(a). 4:l C F R §1601 0-5(a) 3 43 C.F.R. §1610.7-2(a): BLM Manua1161U2 4 BLM Manuall613.2.22(B)(l) 5 43 C.F.R. §1610.7-2(a)(l) 6 BLMManuall613.l.ll(A) 

7 43 C.F.R. § l610.7-2(a)(2) 8 BLMManuall613.1.11(B) 

Answers to Questions for the Record Submitted to Senator John Coghill 

December 3, 2015 Hearing: ANILCA 

2 
113 

The essence of a "no more" clause whether in§ I 01 or§ 1326 is that the ecological, social and 

legal context of Alaska requires significant restraint in taking land uses off the table on our federal 

public lands. ANILCA provided a balance between the social and economic needs of Alaska and its 

citizens and protection for the national interest in the scenic, natural, cultural and environmental 

values on the public lands. Crafting this balance required unique guarantees to land users and 

fundamental limitations on the use of executive withdrawals. The current overly expansive use of 

administrative designation through landscape-levelland use planning, including millions of acres of 

ACECs, undermines both. 

Question 2: During the hearing a number of witnesses argued that Section 1326- the "no more 

clause" -paired with Section 1317 specifically setting up a one-time period for the National Park 

Service and U.S. Fish and Wildlife Service to propose new wilderness designations in Alaska parks 

and refuges, should prevent the agencies from placing more acreage in parks and refuges into 

protected status. Another witness at the hearing, however, argued that new land protections were 

proper for consideration because Section 203 requires the Secretary to administer the "lands, waters 

and interests ... pursuant to the Act of August 25, 1916" (the National Park Service Organic Act), 

while Section 304 (a) specifically requires that wildlife refuges also be governed in accordance with 

the laws governing units of the National Wildlife Refuge System. Could you or the Commission 

explain in greater detail why you believe ANILCA's other provisions should pre[v]ent such 

wilderness and conservation protection set asides in parks and refuges? Is there a conflict in the 

statute that requires congressional clarification? 

Answer: First, the Commission finds no conflict in ANILCA providing for the application of other 

federal laws to Alaska parks and refuges where appropriate. The conflict arises primarily from 

agenda-based attempts to manipulate general intent language to undo very specific direction. For 

example, ANlLCA §203 indeed references the 1916 NPS Organic Act, but does so in combination 

with "applicable provisions of this Act [ANILCA]." If Congress intended the general1916 Organic 

Act to override the specific provisions ANILCA, this express direction would not have been 

included. 

Likewise, Section 304(a) appropriately references general administrative provisions for the wildlife 

refuges, then goes on to add pages of special provisions. When Congress subsequently passed the 

National Wildlife Refuge System Improvement Act in 1997, which consolidated and updated the 

general direction for wildlife refuges, it concluded with this definitive clause in Section 9(b ): "{f 

any cor!flict arises between at(Y provision of this Act and any provision r~fthe Alaska National 

Interest Land~ Conservation Act, then the provision in the Alaska National Interest Lands 

Conservation Act shall prevail." Congress plainly meant for the provisions that specifically apply 

to Alaska to carry forward, even while the general provisions were overhauled. 

Secondly, with respect to Section 1317 wilderness reviews, clearly Congress intended that all lands 

within the National Park System and the National Wildlife Refuge System not already designated as 

wilderness be reviewed for suitability and possible recommendations. The initial park and refuge 

wilderness reviews and agency-level proposed wilderness recommendations were well within the 

scope of Section 1317, even if a little late according to the prescribed schedule. The question then 

arises whether this was to be a one-time-only process. 

Answers to Questions for the Record Submitted to Senator John Coghill 

December 3, 2015 Hearing: ANILCA 

3 
114 

While there is no "Section 1317( d)" that outright prohibits subsequent wilderness reviews, the fact 

that§ 1317(a) and (b) provide specific timelines from the date of the Act would seem to make such a 

prohibition unnecessary. Also, note the corresponding wilderness review provision applicable to 

the BLM in Section 1320, which authorizes the Secretary of the Interior to make wilderness 

recommendations ':from time to time" at his or her discretion, and without deadlines. Looking at 

these two provisions side-by-side further supports the view that ANILCA § 1317 was intended as a 

one-time exercise. 

There is a small complication, however: the agency-level proposed wilderness recommendations 

were finalized at the department level, but neither the Secretary nor the President carried them 

forward as required. Does that mean the Secretary and the President can effectively submit 

recommendations 27 or more years late, or even go back and completely revisit the entire 

wilderness review process, as was recently done with the wilderness recommendations for the 

Arctic National Wildlife Refi1ge~ The Commission would argue that failure to complete the 

required process in the 1980s does not grant the Administration unrestricted license to conduct park 

and refuge wilderness reviews and advance wilderness recommendations anytime. Some 

Congressional clarification on this point would be helpful. 

Question 3: Several witnesses in their testimony concerning hunting and fishing regulatory issues, 

said that the Park Service and Fish and Wildlife Service, in proposing new wildlife management 

regulations, are violating the act because Sections 1313 and 1314 say that the act does not enlarge 

or diminish state authority to manage wildlife, and Title 8 of the act specifically requires 

consultation with Alaska when federal agencies manage for subsistence purposes. The 

Commission's testimony specifically talks about the growing lack of consultation- it becoming 

only a "check the box" exercise. Can you or the Commission elaborate on what it believes the law 

requires federal agencies to do to properly consult with Alaska and private and Native land owners 

in crafting and implementing wildlife management policies in Alaska, both for sport and 

commercial hunting and fishing and for subsistence hunting and fishing? 

Answer: The concept of coordination, consultation and cooperation is infused into ANILCA. As 

passed, the Act directly required consultation with the State of Alaska and Native land owners 

multiple times, and even more consultation requirements have been added through subsequent 

amendments. In ANILCA §120l(h), Congress also directed the Alaska Land Use Council to 

recommend "ways to improve coordination and consultation between [federal and state] 

governments in wildlife management, tramportation planning, wilderness review, and other 

governmental activities which appear to require regional or statewide coordination." Congress 

further encouraged federal members of the Council, including the Regional Directors of the NPS 

and USFWS, to "enter into cooperative agreements with Federal agencies, with State and local 

agencies, and with Native Cmporations providingfor mutual consultation, review, and 

coordination of resource management plans and programs[.]" 9 

9 ANILCA §120l(j)(l) 

Answers to Questions for the Record Submitted to Senator John Coghill 

December 3, 2015 Hearing: ANILCA 

4 
115 

Despite its prevalence and emphasis, "consultation" is not defined in ANILCA. The Commission 

does not believe this is an impediment to its effectiveness, however, as it allows for the purpose and 

process of consultation to be uniquely det1ned by the parties involved. In other words, ANILCA is 

necessarily comprehensive to accommodate diverse specialization respecting individual authorities, 

interests and expertise on an issue-by-issue basis. 

"Consultation" is typically defined by the participants through a mutually agreed-upon process that 

meets the specific needs of each party. For example, with direction to consult on a particular 

matter, the pa1iies would mutually identify the issues each may encounter, establish triggers for 

contacting each other, identify points of contact and processes for contact with timelines for 

responses and information exchanges. Processes must recognize that staff change over time and 

lines of communication must be attached to positions and not individual personnel. Some deference 

can also be incorporated where one of the parties possesses special expertise or primary 

management authority. While cumbersome to develop, the consultation process can lead to 

recognizable lines of communication between participants that maximizes efficient and sound 

decision-making and avoids surprises and acrimony. 

Beyond complying with the process, the content and extent of the participants' exchange under the 

process can be a factor in determining whether there was meaningful "consultation" as opposed to 

perfunctory "notification." For instance, if one party provides limited or no credible information 

supporting a particular decision, the other part(ies) cannot reasonably "consult" on how their 

respective mandates and authorities may be impacted by that decision, or provide feedback to 

inform or influence that decision. Recent restrictions on methods and means of wildlife harvest in 

National Preserves provide a keen example of how the purpose of consultation can be negated by 

construing the terms of an established process to avoid information sharing. 

Under ANTLCA § 1313, the Secretary of the Interior "may designate zones where and period~ when 

no hunting ... may be permitted.fiir reasons of public safety, administration, .floral andfaunal 

protection, or public use and enjoyment. Except in emergencies, any regulations prescribing such 

restrictions relating to hunting, fishing, or trapping shall he put into ~{feet only after consultation 

with the appropriate State agency having responsibility over hunting, .fishing, and trapping 

activities." Absent an emergency, Congress required consultation with the Alaska Department of 

Fish & Game and specified the "reasons" to support regulatory closure. 

The NPS has interpreted this section to mean it may also enact a closure "!f those activities cause 

impacts or impairment or are othenvise contrary to the NPS legal, regulatory, or policy 

framework." 10 By bringing in other all other laws and adding "po/icy.fi·amelvork," this extension of 

ANILCA's limited authorization provides the basis for unilateral preemption without specific 

"regulations" and indeterminately tied to the "reasons" outlined in § 1313. The NPS relied on 

inherent vagueness in its enabling act to develop sweeping management policies, and amended its 

regulations to preempt any state harvest regulation it determines to be "contrary" to those policies, 

all of which effectively invented the opportunity to close areas to hunting and trapping at-will. 

10 This language has been a component or numerous backgwund documents issued to coincide with the NPS Alaska 

Region rumual compendium, noting when closure was appropriate under the previous ven;ion of36 CFR § 13 .40( e). 

Answers to Questions for the Record Submitted to Senator John Coghill 

December 3, 2015 Hearing: ANILCA 

5 
116 

Throughout this evolution, the requirement for consultation with the State remains intact; however, 

the manner and content of that consultation appears altered, and the Commission is not aware of any 

corresponding amendments to the established consultation process. As to manner, the recently 

amended regulations at 36 C.F.R. Part 13 automatically preempt certain future state harvest 

authorizations, subject to a discretionary determination, meaning there is no consultation with the 

State ptior to restriction. 11 The State was not even afforded an opportunity to review either the 

proposed or tina] regulatory amendments prior to publication in the Federal Register, meaning it 

was "consulted" at the same time as the general public. 

As to content, it is difficult to tell at this point which "reason" under ANILCA § 1313 or other 

federal law is being brought to bear in any given closure, so that at least must be shared, but this has 

not been the case. The NPS tends to rely mostly on broad value statements and speculation that 

unacceptable impacts or impairment could occur. Preemptive actions do not specify a cause and 

effect relationship between state regulations and possible impairment to park resources or values, 

and generally lack scientific rationale or data (e.g., current/expected harvest numbers, 

current/expected visitor use, etc.) to demonstrate the potential for that impairment. These would be 

things any agency, Native Corporation or individual would need to "consult" on the NPS' 

determination, otherwise each party is simply being told while the NPS checks a box. 

To avoid this, appropriate participants must be brought together to identify the consultation process 

and content which best works to address the issues and satisfy each party's needs while mutually 

providing for respective authorities and mandates. Some opportunity for elevation may also be 

necessary, since compliance with the consultation process is apparently subject to fluid 

interpretations. Some parties may also need to be coaxed from their corners to ensure the intent of 

consultation is well represented in the defined process. 

Question 4: Let me ask you or the Commission to expand on your comments about agencies 

redefining the law and then counting on highly deferential judicial review to uphold their views. For 

example, Alaska moose hunter John Sturgeon has a case before the Supreme Court concerning 

whether the Park Service can prevent motorized access on state waters that run through parks. It is a 

case that up to now has turned on a single word in Section 103 (c) of ANILCA and whether 

agencies can limit activities on federal lands if their regulations cover all parks, not just "solely" 

Alaska parks. Another example of this is from 2008 when the Park Service required the Alaska 

Department of Fish and Game to obtain a research permit simply to conduct salmon research on 

state-owned lands in Katmai National Preserve. Unless the Supreme Court rules in the State's favor 

next year, is there any other solution, except congressional clarification of the meaning of ANILCA, 

to prevent such textual problems from continuing to arise? 

11 See 80 Fed. Reg. 6432j, 64343-44 (Oct. 23, 20]j). The amended NPS regulation now located at 36 C.F.R. §13.42 

notes State of Alaska actions. lmvs or regulations ·'with the intent or potential to alter or manipulate natural predatorpre.v c~vnamics and associated natural ecological processes, in order to increase han' est of ungulates b.v humans"" are 

"not adopted' and automatically "prohibited'' in park areas. Notice of exactly which state harvest authorizations tills 

applies to will be pro,-ided at least annually. This provision operates entirely independently from the amended 

regulations requiring consultation 'With the State when restricting the take of fish or wildlife. 

Answers to QuestionsjiJr the Record Submitted to Senator John Coghifl 

December 3, 2015 Hearing: ANILCA 

6 
117 

Answer: Alaskans are intimately familiar with and highly frustrated by the mystifying breakdown 

in checks and balances that finds John Sturgeon at the U.S. Supreme Court. As described in the 

testimony, ANILCA §103(c) is the cornerstone that makes the edifice oflaws and promises in 

Alaska work, and the Commission has never believed its structure to be so vulnerable to leveling. 

There are other ways it could have been stated, but the wording is not ambiguous and the legislative 

history is on point. To see the State's and John Sturgeon's defense of it fail, in two Englishspeaking courts, is staggering. 1f the pending appeal fails, the deference pendulum has simply 

swung too far for even elementary judicial oversight and there is no meaningful, neutral mechanism 

for the enforcement of Congressional direction. 

Understanding that, the only other solution that springs to mind would be systematic litigation 

avoidance until the pendulum swings back. This is not really a solution, but it could manage the 

symptoms until a cure is found. The simplest way to accomplish this is through open, respectful, 

balanced and informed communication between sovereigns. Considering present opportunities for 

mutual dialogue of this nature, Alaskans may need some assistance with that. 

Opportunities for this level of communication may need to be mandated, or at least overseen. 

Continuing to conduct committee hearings and require justification for federal actions could import 

essential accountability and introspection. Resuscitating the cooperative aspirations of AN1LCA 

Title Xll by bringing back the Alaska Land Use Council and Federal Coordination Committee 

could help bring all parties to the table through a proven, results-oriented process. 

The capacity for substantive dialogue may require considerable effort and guidance. Ensuring the 

availability of ample funding for ANILCA training and curriculum development would 

simultaneously enhance the credibility and the creativity level of cooperative problem-solving. 

Directing and funding the development of AN1LCA guidance for each federal land management 

agency, in close collaboration with the State of Alaska's ANILCA Implementation Program, would 

yield inestimable and far-reaching benefits. To the extent this can be successfully accomplished, it 

will permeate multiple planning and administrative decision-making processes and save future 

managers from having to reinvent the wheel where understandings are in place. This "template" 

technique was used successfully during the first round ofland management plans in the 1980s and 

beyond, and saved considerable time and effort by all involved parties. 

Duly empowering the State may also be necessary. Requiring the State assent to or ratify federal 

land use plans could reinforce basic aspects offederalism and stimulate dialogue and buy-in at 

multiple stages. Irretrievable devolution of federal public lands and/or management authorities to 

the states could also restore some balance, and possibly even result in overall economic stabilization 

and growth. The Commission has created the nine-member Alaska State Lands Advisory Group to 

study and make recommendations on this very concept. The group's efforts will culminate in a 

report issued in early summer 2017. 

Whatever the Court decides with respect to ANILCA § 1 03( c), and wherever the deference 

pendulum lands afterward, the ability to communicate and work together will spare us similar 

frustrations in the future. In fact, litigation avoidance should be our default and not our refuge. 

These and other steps will help us work together to pave the road Congress mapped in 1980. 

Answers to Questionsfor the Record Submitted to Senator John Coghill 

December 3, 2015 Hearing: ANILCA 

7 
118 

Responses to Questions for the Record Submitted to Ms. Valerie Brown 

Legal Director, Trustees for Alaska 

U.S. Senate Energy & Natural Resource Committee 

December 3, 2015: Hearing to receive testimony on 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. 

Chairman Murkowski, Ranking Member Cantwell, and members of the Committee: 

Thank you again for the opportunity to address the Committee regarding the importance 

of the Alaska National Interest Lands Conservation Act ("ANILCA") of 1980 at the December 3, 

2015 hearing. Below are my responses to the questions for the record from Chairman 

Murkowski. 

Question 1: Travel in Alaska is uniquely difficult. There are places one cannot get to, other than 

by plane, unless you travel through parks and conservation system units. There are still 20 

million acres of private and state land inholdings inside the ANILCA CSUs. ANILCA intended, 

as clearly stated in Title 11, to permit traditional access across CSUs and to inholdings. 

However, many Alaskans feel the current access provisions are not working as intended, either 

because of growing restrictions on access or because of the cost of planning, permitting or 

utilizing allowed access means. In the view of the Trustees for Alaska, are there any current 

problems with public access to, within and through CSUs? Are there any changes in policy or 

law that your organization would support on the issue of access to ANILCA protected lands? 

Response: ANILCA includes multiple provisions addressing access. 1 Airplane, motorboat, and 

snowmachine access continue to be the norm in most conservation system units, as provided by 

ANILCA2 But importantly, ANILCA also expressly mandates that access could be subject to 

"reasonable regulations" "to protect the natural and other values" of the conservation system 

unit. 3 Based on these provisions, in drafting Title XI, Congress thus envisioned that not all 

means of access would necessarily be allowed at all times, in all areas. 

Many general statements were made during the hearing about problems with access to 

inholdings, though very few actual examples have been provided. One example, cited repeatedly, 

has to do with the enforcement of a 1983 hovercraft ban in National Park units. Hovercrafts were 

banned because of their potential to cause damage to aquatic and terrestrial habitats beyond those 

caused by motorboats. This example is not an indication that Title XI access has failed, or that 

there are growing restrictions. It is instead an example of Title XI functioning as envisioned 

allowing access generally, while placing a reasonable restriction to protect the natural values of 

the area. The hunter who now challenges the right to use a hovercraft in National Park units may 

still hunt and can use a motorized boat to do so. 4 He just cannot use a hovercraft. 5 

e.g, ANILCA §§ 1109. lllO, Ill L 16 U.S.C. §§ 3169. 3170. 3171. 

ANILCA § 1110(a). 16 U.S.C. § 3170(a). 1 AN!LCA § ll!O(a). (b). 16 U.S.C. § 3170(a). (b). 4 ANJLCA § Jl!O(a), 16 U.S.C. § 3170(a). 5 36 C.F.R. § 2.17(c). 
119 

The other access issue that was raised during the hearing- a road from King Cove to 

Cold Bay through the Wilderness ofizembek National Wildlife Refuge is not a failure of 

Title XL It stems from the many decades of debate over whether designated Wilderness in 

Izembek National Wildlife Refuge should be traded to facilitate a road between the two 

communities. We recognize that there is disagreement on this issue. Congress explicitly left that 

decision to the Secretary of the Interior. After completing the extensive public review process 

required by Congress, the Secretary determined not to proceed with the land exchange and road, 

and committed to continuing to work with the community of King Cove to find a solution to 

their transportation needs. Instead of being an example of a failure of Title XI, that process fully 

complied with the Omnibus Public Lands Management Act of2009. These examples do not 

require any change policy or law to ensure access under Title XI. 

In the face of increasing use and technological advances, regulation of motorized access 

in some CSUs however, has been insufficient, resulting in significant impacts to wildlife habitat 

and other resources ANILCA sought to protect. Management agencies should be encouraged to 

better address motorized access impacts through planning and regulatory changes. 

Question 2: In testimony the Alaska Travel Industry Association sent to the Committee, they 

suggest that ANILCA "problems" could be solved by more "adequately funding" federal land 

managers and public recreation programs in the state. What is your view on this issue? Are 

federal funding levels a valid concern considering federal enforcement of ANILCA? 

Response: Like the Alaska Travel Industry Association, I believe that adequately funding 

federal land managers and public recreation programs is very important and should be a priority. 

An express purpose of ANILCA was to establish a system of conservation lands for recreation. 6 

Congress stated that its intent was to preserve lands for, among other things, "recreational 

opportunities including but not limited to hiking, canoeing, fishing, and sport hunting 

Many of the conservation units established or enlarged by ANILCA have recreation as a specific 

purpose. 8 

As I explained in my written testimony, the conservation benefits of ANILCA have 

translated into strong economic benefits for Alaskans and Alaska communities. A 2001 Institute 

of Social and Economic Research study found that tourism has continued to grow each year 

since statehood, and was the sole private sector in Alaska that had done so. 9 Outdoor recreation 

alone generates $9.5 billion dollars of spending in Alaska, supporting 92,000 direct jobs and 

providing $711 million in state and local tax revenue annually. 10 More than a million out-of-state 

visitors flock to Southeast Alaska each year supporting 10,200 jobs that contribution another $1 

6 ANILCA § lOI(a), 16 U.S. C.§ 3101(a). 7 ANILCA § lOI(b). 16 U.S.C. § 3!0l(b). 

'See. e.g .. ANILCA § 303(4) (including opportmrities for fish and wildlife-oriented recreation as a pmpose 

of the Kenai National Wildlife Refuge). 9 Steve Colt. lust. of Social & Econ. Research, What's the Econonric Importance of Alaska's Healthy 

Ecosystems? 2 (2001). available at h!!p:i/www.iscr.uaa.alaska.cdu.IPublitalions/fonnal/rsummarv/rs61.pdf. This is 

generally tme since 200 I as welL with the exception of 2008-2009. 10 Outdoor Indnstrv Association, The Outdoor Recreation Economy: Take it Outside for Alaska Jobs and a 

Strong Economy (2013), ~vailable at: https:i/outdoorindnstrv.org/images/~re rcports/AK-alaskaoutdoorrecreationeconomv ~oia. pdf. 

2 
120 

billion to the regional economy. 11 In 2014, Denali National Park hosted over 530,000 visitors, 

who spent over $5 million in communities near the park, supporting nearly 7,000 area jobs, and 

generating a total economic benefit to the local economy of nearly $7.5 million12 In 2011, more 

than 570,000 people visited the Kenai National Wildlife Refuge, generating more than $113 

million in economic benefit for the area. 13 In 20 I 0, BLM lands in Alaska contributed over I ,000 

jobs, received over 600,000 visitors, and generated over $28 million from recreational use. 14 

Alaskan residents spent as much $247.8 million each year in local communities as a result of 

their use of Alaska's two National Forests, the Chugach and Tongass. 15 In 2012, guided hunters 

spent a total of$51 million on hunting packages and another $3.5 million on associated services 

while in Alaska. 16 Almost half of the guiding revenue was earned hunting on federalland. 17 

ANILCA lands also support the healthy ecosystems that are necessary to sustain fishing year 

after year. A 2001 study estimates that Alaska's commercial fishing industry supplies 20,000 

direct jobs and supports an additional 14,000 indirectjobs. 18 

Funding agency recreation programs, trails, and facilities is vital to ensuring that the 

local, regional, and state economies that benefit from recreation-based tourism are sustainable. 

One of the priority issues identified by the Governor's recent Transition Team was the need to 

"focus on alternative revenues, including assets, in budget solutions." For both economic and 

conservation reasons, Alaska can and should bridge to a more diverse and thus stable economic 

foundation. Sustainable, recreation-based tourism on ANILCA lands is one avenue to do that. 

Funding programs and federal land management agencies is a critical component of a strong 

conservation-focused recreation economy, as Congress envisioned in ANILCA. 

11 McDowell Group, Economic Impact of Visitors to Southeast Alaska 2010-11. prepared for Alaska 

Wilderness League 1 (Aug 2012) 

http://www.alaskaprohunter.org/Economic Impacts of Guided 1-hmting Final. pdf (last visited Nov. 29, 2015) 12 Denali Visitors Provide Economic Benefits to Alaska and Local Area Economics. Denali National Park 

and Preserve Alaska, National Park Serv., http:l/www.nps.gov/dena/lcarn/ncws/ccon-bcncfils.hlm (last visited Nov. 

28, 2015): see also Denali. National Park's Economic Impacts, Headwaters Economics (June 2015). 

http://hcadwaterscconomics.o.rgLQ;jll!v iz/nmional-p&:.k-scrvice-units (last visited Nov. 30, 2015). 13 National Wildlife Refuges Provide Significant Local Economic Impact, U.S. Fish & Wildlife Serv., Region 

7-Alaska (Nov. 6. 2013). available at http://wwvv.fws.gov'lalaska/e:\1emal/ncwsroom/pdf/l3-25.pdf. 14 About BLM-Alaska, U.S. Department of the Interior, Bureau of Land Management, 

http://www.blm.gov/ak/st/en/info/about blm.html (last visited Nov-. 28. 2015). 15 Spencer Pllillips et aL Greater Than Zero: Toward the Total Economic Value of Alaska's National Forest 

Wildlands 5--{) (2008), available at h!!ps://partncrs.lws.org/VIildscicnce/Publicalionsl/Grcalcr%201han%20Zcro.pdf 

(describing timber sales in the Tongass and Chugach forests). The estimated annual harvest value of salmon 

supported by these two forests is$ 99.7million (in2008 dollars). !d. 16 The McDowell Group, The Economic Impacts of Guided Hunting in Alaska I (Febmary 2014) 

at 9. 

Stev-e Colt, lust. of Social & Econ. Research What's the Economic tmJ>Onlm<:c 

Ecosystems'' 2 (2001). available 
121 

2015 

Senator Lisa Murkowski 

United State Senate 

709 Hart SOB 

DC 20510 

Dear Senator Murkowski, 

l greatly appreciated your statement of the need to protect subsistence 

rights in your opening remarks in the December 3, 2015 oversight hearing on 

the implementation of AN!LCA. is especially so, since the actual legislative 

lineage of ANlLCA section 17(d)(2) of the Alaska Native Claims Settlement 

Act. 

Alaska subsistence has not been protected in the way that was 

promised by Congress in Congress understood the need to 

pmtect Alaska Natives' customary and traditional hunting and fishing rights 

when it passed ANCSA. The United States Senate commissioned the Federal 

Field Committee to study Alaska Native use, cultures and economies. 

That the seminal study, Alaska Natives and the Land, which 

provided a central rationale for the congressional mandate to convey lands 

back to the Alaska Native people develop healthy economies, protect Alaska 

Native customary and b·aditional hunting and fishing rights cultures. ln 

1971, Congress concluded that Secretary of Interior could protect Alaska 

Native customruy and traditional hunting and fishing rights the 

Secretary's existing powers. By 1980, it was dear that this was not the case. 

ANILCA was the vehide to protect those rights. The plan to protect 

Alaska subsistence rights has up the worst 

lack of defined protection of Alaska Native customary and hunting 

and fishing rights. Instead, it has become a labyrinth of bureaucracy 

litigation with the State and private parties. The implementation of AN!LCA 

subsistence rights continues to absorb the very limited resources of the Alaska 

Native people was supposed to protect. 

1fl!WlN.ahtnarninc.com 
122 

lt is as clear as it was in 1980 that the promise of Alaska Native 

customary and traditional hunting and fishing rights are being protected 

and ANILCA has failed to do this. Today marks over 35 years of constant 

litigation to seek protection of Alaska Native rights. We believe that if this 

continued for 35 more years Alaska Natives would be marginally closer to 

protecting Alaska Native customary and traditional hunting and fishing rights. 

Therefore, we believe that time for a legislative redesign. Ahtna has 

suggested an approach that would assure that those rights are solidly 

protected in respect to the lands that were conveyed to the ANCSA corporations 

inl97L We also believe that we have a way in which the State of Alaska could 

achieve a greater wildlife management of federal lands than was contemplated 

under AN!LCA, with the collaboration of both Alaska Native people and the 

federal government. 

l understand that you intend to have further oversight hearings in 

Alaska. request that Ahtna be placed on the witness list for those hearings. 

Thank you for taking the initiative to reassess ANlLCA. It the right 

time. l look forward to hearing from you, 

PreBident 

www.ahrna-inc.com 
123 

Written Testimony of 

Julie Kitka, President, Alaska Federation of Natives 

To the Senate Energy and Natural Resomces Conunittee 

For the December 3, 2015 Committee Hearing on 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. 

January 12, 2016 

The Alaska Federation of Natives (AFN) submits this written testimony to the record for the 

December 3, 2015 Committee Hearing on 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. 

The Alaska Federation of Natives is the largest statewide Native organization in Alaska. Our 

membership includes 185 federally recognized tribes, 153 village corporations, 12 regional 

corporations, and 12 regional nonprofit and tribal consortiums that compact and contract to run 

federal and state programs. Formed fifty years ago, AFN continues to be the principal forum and 

voice of Alaska Natives in dealing with critical issues of public policy and government. 

History 

In the 1960s, the Alaska Federation of Natives and Alaska Native leaders sought a fair and just 

settlement of land rights and protection of our critical way oflife as traditional hunting and 

fishing people .. We sought federal protections for hunting and fishing rights as part of a 

settlement of Alaska Native aboriginal land claims. Instead, Section 4(b) of the Alaska Native 

Claims Settlement Act of 1971, also known as ANCSA 1

, extins>uished those rights. 

In report language, Congress stated that they expected the State of Alaska and the Secretary of 

the Interior "to take any action necessary to protect the subsistence needs of Alaska Natives." 2 

Over time, neither the Secretary of the Interior nor the State of Alaska fulfilled that expectation. 

Consequently, Congress enacted Title VIII of the Alaska National Interest Lands Conservation 

Act, or ANTLCA 3

, in 1980. ANTLCA's Title VIII was a balanced approach and envisioned State 

implementation of the federal priority on all lands and waters in Alaska through state law, which 

complied with federal standards. Again, AFN and Alaska Native leaders sought explicit 

protections for "Native" hunting and fishing rights, but the State objected. 

ANlLCA was crafted to provide a subsistence priority for "rural residents." To comply with this 

law, the State of Alaska enacted state laws that conformed to federal requirements to manage 

subsistence on state and federal lands in Alaska. 

1 43 U.S.C. 1603(b). 2 S. REP. NO. 92-581, at 37 (1971) (Conf. Rep.). 3 Codified as amended in sections of 16 U.S.C., 43 U.S.C.. and 48 U.S.C. 

1 
124 

That system operated for less than a decade before the Alaska Supreme Court ruled that the State 

Constitution precluded State participation in the program. In 1989, the Alaska Supreme Court 

held in McDowell v. State 4 that the Alaska Constitution's equal access clauses, which guarantee 

that all Alaskans have equal access to ftsh and wildlife, preclude the State from implementing a 

rural subsistence priority consistent with ANILCA. 

After the 1989 McDowell decision, the entire Alaska Congressional delegation, the Governor and 

leaders in the Alaska Legislature, together with Alaska Native leaders and community leaders 

attempted to amend the state constitution to enable the State to reassume responsibility for 

managing subsistence hunting and fishing on federal lands. The Alaska Legislature through 20 

regular sessions and six special sessions was not able to accomplish this goal. We came close 

within one vote of the 2/3 requirements of both the Alaska Senate and the Alaska House of 

Representatives, to allow Alaskan voters to vote on a solution. Efforts to amend the state 

constitution collapsed after nearly a decade of concentrated efforts. The direction of State law 

moved away from critical protections and now generally prioritizes subsistence uses offish and 

game but provides no preference for rural or Alaska Native residents. Essentially the State 

legislature gave up the right to manage federal public lands and allowed the federal agencies to 

assume a greater role per ANILCA. 

The federal system put in place was a temporary system, hopeful that the State would work to 

resume management. This temporary system has now been in place over twenty years. 

Numerous efforts to improve the system occurred administratively, and through clariftcation 

due to litigation. Currently the federal government manages subsistence on federal lands, as well 

as "reserved waters" which run adjacent to or through federal lands in Alaska. The State of 

Alaska has jurisdiction over state and private lands. 

This dual federal and state management system, as can be expected, is highly complex and 

confusing, and is not a satisfactory way to management migratory fish and animals, let alone 

nimble enough to address the changing needs and aspirations of the Alaska Native people. 

After more than 20 years of dual management, it has become clear that the State is not inclined 

to regain subsistence management authority on federal lands and waters. Moreover, state 

subsistence laws have effectively been gutted-large areas of the state have been classified as 

"non-subsistence use areas" where subsistence users receive no priority, and, where there is a 

priority, "all Alaskans" have been declared eligible. This change is completely inconsistent with 

ANILCA's rural preference; the purpose, intent, and "letter of the law" in both ANCSA and 

ANILCA are not being met. 

Pursuant to ANCSA, in exchange for abrogating Native claims, title to 44 million acres of land 

plus $962.5 million were distributed to 12 regional and more than 200 village Alaska Native 

Corporations. The Native Corporations were charged with managing the land for the benefit of 

their shareholders who, at the time of the settlement, were all Alaska Natives. Because private 

land in Alaska is governed by state law, Alaska Native subsistence users are not assured of 

hunting and fishing protection even on their own land. 

4 785 P.2d I (Alaska 1989). 

2 
125 

Subsistence is not a mere lifestyle choice. For most Alaska Native families, it is a core means of 

making a living. Based on ancient traditions passed down from generation to generation, 

subsistence is key to Alaska's rural economy. 

We hope this Committee will recognize that ANCSA and ANILCA failed to provide the longterm protections for Native subsistence needs that Congress intended, and take the actions 

necessary to provide those protections. 

Federal Overreach 

ANILCA is an extension of ANCSA and central to the historic, constitutional trust relationship 

between Alaska tribes and the federal government. It is hardly "federal overreach," from the 

statewide Native community's perspective. "Federal overreach" is often coded language for 

anti-Native sentiment. It is used by certain urban, non-Native hunters, ranchers, and big business 

interests to fight Native tribes over land and resources in many western states. 

In Alaska that sentiment is inherent in the fight over the rural subsistence preference on federal 

lands and waters. Often in the guise of state's rights, the anti-federal activism ignores the 

consequence of what will happen to ANILCA protection for rural, mostly Native, subsistence 

families if the federal government cedes management of the waters to Alaska state control, 

which does not provide for a rural subsistence preference. 

The events unfolding this month at the Malhuer National Wildlife Refuge in southeastern 

Oregon underline the anti-Native undertone of anti-government activism. A group of armed 

activists and militiamen protesting the prosecution of two ranchers occupied an administrative 

building in the refuge. They spoke the same coded language as has been heard in Alaska for 

decades. Group leader Ammon Bundy said, "(We take) a hard stand against this overreach, this 

taking of the people's land and resources," and that the situation in the refuge was "a symptom of 

a very huge, egregious problem" that he described as a battle over land and resources between 

the federal government and "the American people." 5 

Left out of the public discourse in this standoff is the fact that the wildlife refuge is within the 

Burns Paiute Tribe's ancestrallands 6 In 1868, the tribe signed a treaty with the federal 

government that requires the government to protect Natives' safety. According to the tribe, the 

federal government promised to prosecute 'any crime or injury perpetrated by any white man 

upon the Indians.' Tribal members say the tribe never ceded its rights to the land and works with 

the U.S. Bureau of Land Management to preserve archaeological sites7 

Alaska Native families, particularly those in rural areas whose food security is based primarily 

on subsistence hunting, fishing and gathering, rely on the ANILCA protections in the current, 

albeit imperfect, duel management system. The success of a belligerent movement that seeks to 

5 NY Times. Wildlife Refuge Occupied in Protest of Oregon Ranchers' Prison Terms. by Liam Stack. Jan. 2, 2016. 5 NPR, "The Two Way" news story, Jan. 6, 2016 7 The Oregonian, Burns Paiute Trihe: .\lililants need to get ofT 'our land, ' by Ian Kullgrcn Jan. 6, 2016. 

3 
126 

seize and sell off our publicly owned lands and end federal resource management would be 

disastrous to Native peoples. 

Se(f-Determination 

Alaska Natives have been exercising self-determination for decades and we want to continue 

building on that. Since the Indian Self-Detennination and Education Assistance Act of 1975, 

(ISDEAA) 8 we have negotiated contracts and compacts to manage health care, social services, 

education, housing, roads, and tribal operations such as enrollment in Alaska. 

The Act allows tribes themselves to assume administrative responsibility for federally funded 

programs designed for their benefit, primarily services which are administrated by the Bureau of 

Indian Affairs and by the Indian Health Service. This means that the tribes can negotiate 

contracts and compacts directly with the federal government to run their own programs and 

deliver their own services rather than the federal government doing it for them. 

These kinds of arrangements serve the needs of all involved. The federal and state governments 

get to focus on the big picture and their administrative duties. Alaska Natives get culturally 

sensitive services administered by our own people and a chance to exercise their management 

skills. 

Co-Management 

As one way to end the perception of federal overreach, Alaska Natives are advocating for comanagement of Alaska's fish and game resources. As it relates to the management offish and 

game in Alaska, co-management is an arrangement where responsibility for resource 

management is shared between the government and user groups. This model puts local users, 

most often Alaska Natives, in a power sharing position rather than that of an advisor or 

commentator. 

Co-management is not a demand for a tribal veto power over federal or state policies. Rather, it 

is a departure from paternalism in decisions that affect tribal rights and resources. Successful comanagement incorporates, in a constructive manner, the policy and technical expertise of each 

party in a mutual, participatory framework. 9 

Co-management offtsh and wildlife resources with Native American and Alaska Native groups 

is not a new concept. Since 1994, the National Marine Fisheries Service (NMFS and the U.S. 

Fish and Wildlife Service (USFWS) have entered into more than a dozen co-management 

agreements in Alaska. The State of Alaska participates in several of these co-management 

structures with the federal government and Alaska Native groups, such as the Alaska Migratory 

Bird Co-Management Council and the Alaska Beluga Whale Committee. 

8 25 U.S.C. §§450 et seq. 9 Edmund C. Goodman, Protecting Habitat for Off-Reservation Tribal Hunting and Fishing Rights: Tribal 

Comanagement as a Reserved Right, 30 Envtl. L. 279 (2000). 

4 
127 

There are four categories of management functions in a co-management model- research, 

regulation, allocation and enforcement 10 and Alaska Native groups in current co-management 

arrangements conduct work in all four of these areas successfully. Local users are able to 

augment scientific research with traditional ecological knowledge, greatly enhancing our 

understanding of and ability to successfully manage resources. 

Despite the long, successful history of some of these projects, co-management occurs in isolated 

instances around the state and are often species-specific. We would like to build on the success 

of these co-management projects and maximize self-determination by expanding and creating 

more co-management projects. 

Conclusion 

We ask that this Committee commit to work with the Alaska Native community to formulate 

legislation that will restore and protect Native hunting and fishing rights in Alaska, and provide a 

co-equal role for Alaska Natives in the management offish, wildlife and other renewable 

resources that we rely upon for our economic and cultural existence. 

Our goal in advocating for co-management projects is to have a meaningful seat at the 

management table where fish and game are concerned. Our traditional knowledge and modern 

science are proving invaluable in managing these resources in other situations. 

We ask Congress to fulfill the federal government's trust responsibility to Alaska's Native 

peoples with respect to subsistence culture and economy. Finally, we urge the Committee to 

conduct field hearings in mral Alaska and learn what is going on and critically needed. 

Quyana, Thank you. 

10 Eric Smith, Some Thoughts on Comanagement, 14 Hastings W.-N.W.J. Envtl. L. & Pol'y 763, 767-68 (2008). 

5 
128 

ASSOCIATION 

January 15, 2016 

Senator Lisa Murkowski, Chairman 

Senate Committee on Energy and Natural Resources 

304 Dirksen Senate Office Building 

Washington DC 20510 

1 s;<:>sna I 

Re: AMA LETTER TO CONGRESSIONAL DELEGATION REQUESTING DEFINITION OF THE WORD 

'WITHDRAWAL" IN§ 1326 

Dear Senator Murkowski: 

Alaskans interested in resource development wonder why the "no more" clause does not protect 

us from ongoing and increasing federal land grabs. The agencies in Alaska are going around the "no 

more" clause by withholding land from development through land use designations within a land plan 

and then rolling over that land use designation/de facto withdrawal from land plan to land plan- always 

expanding, never decreasing. Examples are "Old Growth Reserves" (OGRs) on the Tongass National 

Forest and Areas of Critical Environmental Concern (ACECs) on Bureau of Land Management (BLM) land. 

The Alaska Miners' Association (AMA) seeks a definition of the word "withdrawal" as that word is 

used in§ 1326(a) of the Alaska National Interest Land Conservation Act (ANlLCA). The AMA requests that 

this letter be placed in the Senate Energy Committee's hearing record on ANILCA which was held on 

December 3, 2015. 

AMA is a non-profit membership organization established in 1939 to represent the mining 

industry throughout Alaska. The AMA has a diverse membership composed of more than 1,800 members 

that come from seven statewide branches: Anchorage, Denali, Fairbanks, Juneau, Kenai, Ketchikan/Prince 

of Wales, and Nome. Our members include individual prospectors, geologists, engineers, vendors, suction 

dredge miners, small family mines, junior mining companies, and major mining companies. AMA 

members look for and produce gold, silver, platinum, molybdenum, lead, zinc, copper, coal, limestone, 

sand and gravel, crushed stone, armor rock, and other materials. 

DISCUSSION 

By Section 1326(a), ANlLCA Congress specifically limited the executive branch's authority to 

withdraw public lands in Alaska: 

a. First, Congress found: 

This Act provides sufficient protection for the national interest in the scenic, natural, cultural and 

environmental (emphasis added) values on the public lands in Alaska, and at the same time provides 

adequate opportunity for satisfaction of the economic and social needs of the State of Alaska and its 

people; accordingly the designation and disposition of the public lands in Alaska pursuant to this Act are 

found to represent a proper balance between the reservation of national conservation system units and 

those public lands necessary and appropriate for more intensive use and disposition, and thus Congress 
129 

believes that the need for future legislation designating new conservation 

system units, new national conservation areas, or new national recreation 

areas, has been obviated thereby. (ANlLCA § 101(d); 16 U.S.C. § 3101(d)). 

(Emphasis added.) 

b. Congress then directed: 

ALASKA MINERS 

(a) No new executive branch action which withdraws more than five thousand acres, in the aggregate, of 

public lands within the State of Alaska shall be effective except by compliance with this subsection. To the 

extent authorized by existing law, the President or the Secretary may withdraw public lands in the State 

of Alaska exceeding five thousand acres in the aggregate, which withdrawal shall not become effective 

until notice is provided in the Federal Register and to both Houses of Congress. Such withdrawal shall 

terminate unless Congress passes a joint resolution of approval within one year after the notice of 

withdrawal has been submitted to Congress, 

(b) No further studies of 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 area, or for 

related or similar purpose shall be conducted unless authorized by this Act or further Act of Congress. 

AN!LCA § 1326; 16 U.S.C. § 3213. 

While the Congressional intent is clear, executive agencies have used various devices to 

circumvent AN!LCA § 1326. They have been able to do so because there is no AN!LCA definition of 

"withdrawaL" For example the U.S. District Court for the District of Columbia decided in the attached case 

of Southeast Conference v. Vi/sack, 684 F.2d 135 (D.D.C. 2010) that because there was no AN!LCA 

definition of"withdrawal" it would use the definition of"withdrawal" set out in§ 204(e) of the Federal 

Land Management Policy Act of 1976 (FLPMA) and related case law: 

[A] withdrawal exempts covered land from the operation of laws that otherwise authorize the transfer of 

federal lands to the private domain for private use. (Attached Slip Opinion at page 13). 

Based on this definition, the Court determined that 1.22 million acres of "Old Growth Reserves" set 

aside by the 2008 Amended Tongass Land Management Plan were not withdrawals but: 

are merely examples of the Forest Service's statutory responsibility under the National Forest 

Management Act to "provide for multiple use and sustained yield products and services of units of the 

National Forest System." 16 U.S. C.§ 1604(e), They neither exempt lands from the operation of public land 

laws, nor suspend the operation ofthose laws in certain lands. Land-use designations simply have no 

effect on laws that authorize transfer of federal lands to the private domain ... , (Attached Slip Opinion at 

page 14). 

In the same way ACECs on BLM land would be considered land-use designations under FLPMA 

and not subject to the "no more" clause. This is a gigantic loophole which the agencies can use to set aside 

as much land in Alaska as they wish notwithstanding the "no more" clause. 

AMA proposes to close the loophole by adding the following definition of"withdrawal" to AN!LCA: 

Section 1326 of ANILCA is amended by adding a new subparagraph (c) to read: Consistent with the 

Congressional intent expressed in Section 101 (d) and notwithstanding 16 U.S.C, 1702(j), for the 

purposes of Section 1326 (a) the terms "withdraw," "withdraws" and "withdrawal" shall mean any 

agency action or inaction that has the effect of designating public land in Alaska as: a Wilderness 

Study Area; a Wild and Scenic River; an Endangered Species Act habitat area; or any land use 
130 

ALASKA MINERS 

designation, made pursuant to the Federal Land Policy Management ASoac•ATOON 

Act or the National Forest Management Act or any other planning 

statute, that has the effect of prohibiting or limiting resource uses 

allowed before the day of passage of this Amendment or impeding access to or inhibiting the 

development of: renewable energy projects (including hydropower), mining (including 

exploration), oil and gas (including exploration), or timber harvest. 

This definition would cause the "no more" clause of ANILCA to actually work as a "no more" clause. AMA 

looks forward to discussing this with you. 

Yours truly, 

Dean tha Crockett 

Executive Director 
131 

Case 1 :08-cv-01598-JDB Document 33 Filed 02/17/10 Page 1 of 23 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

SOUTHEAST CONFERENCE, et al., 

Plaintiffs, 

v. 

THOMAS VILSACK, Secretary, 

United States Department of Agricnltnre, 

et al., 

Defendants. 

Civil Action No. 08-1598 (JDB) 

MEMORANDUM OPINION 

In 2008, the United States Forest Service approved the 2008 Tongass National Forest 

Land and Resource Management Plan Amendment ("2008 TLMP Amendment" or "Plan"). The 

Plan established the Forest Service's goals and objectives for the management ofthc Tongass 

National Forest in Alaska, which include promoting the ecological, social, and economic values 

derived from the Tongass. Plaintiffs-- several Alaskan cities and regional, non-profit 

corporations -- disagree with the Forest Service's vision for the Tongass, particularly as it 

addresses the timber harvest. Accordingly, they challenge several components of the 2008 

TLMP Amendment, positing that it improperly reduces the amount of land available in the 

Tongass for the timber harvest. Before the Court are the parties' cross-motions for summary 

judgment, on which the Court heard oral argument on January 14,2010. Upon consideration of 

the applicable law, the parties' several memoranda, and the entire record herein, and for the 

reasons stated below, the Court will grant defendants' motion and deny plaintiffs' motion. 1 

1 Although plaintiffs name several different individuals and entities as defendants, the 

Court will refer only to the Forest Service because it promulgated the 2008 TLMP Amendment. 
132 

Case 1 :08-cv-01598-JDB Document 33 Filed 02/17/10 Page 2 of 23 

I. 

Located in Southeast Alaska, the 16.8 million acre Tongass National Forest is the nation's 

largest national forest. "Most of the area of the Tongass is wild and undeveloped." 

Administrative Record, 2008 TLMP Amendment Final Environmental Impact Statement ("2008 

TLMP Amendment FETS"), 1-3. In spite of-- or perhaps because of this feral environment, 

"[t]hc economics of Southeast Alaska's communities rely on the Tongass National Forest to 

provide natural resources for uses such as fishing, timber harvesting, recreating, tourism, mining, 

and subsistence." Id. Hence, "[m]aintaining the abundant natural resources of the Forest, while 

providing opportunities for their usc, is a major concern of Southeast Alaska residents." I d. The 

Forest Service manages the Tongass with these issues in mind. 

A. 

The National Forest Management Act of 1976, 16 U.S. C. § 1600 et seq., requires the 

Forest Service to "develop, maintain, and, as appropriate, revise land and resource management 

plans for units of the National Forest systems." 16 U.S.C. § 1604(a). In doing so, the Forest 

Service must "balance competing demands on national forests, including timber harvesting, 

recreational use, and environmental preservation." Lands Council v. Powell, 395 F.3d 1019, 

1025 n.2 (9th Cir. 2005); sec also 16 U.S.C. § 528 (national forests "administered for outdoor 

recreation, range, timber, watershed, and wildlife and tish purposes"). Indeed, "[u]nlike other 

types of federal conservation statutes, the law regulating the use of national forests embraces the 

concepts of'multiple use' and 'sustained yield of products and services."' Lands Council, 395 

F.3d at 1025 n.2 (quoting 16 U.S.C. § 1607). As part of its management of national forests, the 

Forest Service must "revise[] from time to time [its forest plans] when the Secretary [of 

-2-
133 

Case 1 :08-cv-01598-JDB Document 33 Filed 02/17/1 0 Page 3 of 23 

Agriculture] finds conditions in a unit have significantly changed, but at least every fifteen 

years." 16 U.S.C. § 1604(!)(5). 

In addition to the statutory scheme governing national forests generally, several other 

statutes specifically regulate the Tongass. First, the Alaska National Interest Lands Conservation 

Act ("ANlLCA"), Pub. L. No. 96-487, 94 Stat. 2371 (Dec. 2, 1980), created numerous new 

federal properties in Alaska in order to maintain a "proper balance between the reservation or' 

land for conservation and the disposition of "those public lands necessary and appropriate for 

more intensive use." 16 U.S.C. § 3101(d). Because Congress believed that ANILCA properly 

balanced these outcomes, it concluded that "the need for future legislation ... has been obviated" 

by the statute. ld. Congress therefore prohibited "future executive branch action which 

withdraws more than five thousand acres, in the aggregate, of public lands within the State of 

Alaska[, unless] notice is provided in the Federal Register and to both Houses of Congress." !d. 

§ 3213(a). The Forest Service must tem1inate any such withdrawal "unless Congress passes a 

joint resolution of approval within one year after the notice of such withdrawal has been 

submitted to Congress." I d. 

Second, the Tongass Timber Reform Act ("TTRA"), Pub. L. No. 101-626, 104 Stat. 4426 

(Nov. 28, 1990), "imposed additional planning requirements for the Tongass." Natural Res. Def. 

Council v. United Stales Forest Serv., 421 F.3d 797, 801 (9th Cir. 2005). "Among these 

requirements, Congress imposed a unique duty on the Forest Service to consider the 'market 

demand' for timber" when creating a forest plan for the Tongass. ld. This duty requires the 

Secretary of Agriculture, 

to the extent consistent with providing for the multiple use and sustained yield of 

-3-
134 

Case 1 :08-cv-01598-JDB Document 33 Filed 02/17/10 Page 4 of 23 

all renewable forest resources, [to] seek to provide a supply of timber from the 

Tongass National Forest which (1) meets the annual market demand for timber 

from such forest and (2) meets the market demand from such forest for each 

planning cycle. 

16 U.S.C. § 539d(a). Although the statute's language is merely "hortatory," it nevertheless 

requires the "Forest Service ... [to] at least consider market demand and seek to meet market 

demand." Natural Res. Def. Council, 421 F.3d at 809. The TTRA envisions "not an inflexible 

harvest level, but a balancing of the market, the law, and other uses including preservation." 

Alaska Wilderness Recreation & Tourism Ass'n v. Morrison, 67 F.3d 723, 731 (9th Cir. 1995). 

B. 

The Forest Service promulgated and approved the 2008 TLMP Amendment to fulfill its 

statutory responsibilities for the Tongass. In the Plan, as in the four previous Tongass forest 

plans, the Forest Service sought to meet its obligation to "provide for multiple usc and sustained 

yield ofthc products and services obtained from the National Forest System." Administrative 

Record, 2008 TLMP Amendment Record of Decision ("2008 TLMP Amendment ROD"), 2 

(internal quotation marks omitted). In other words, the 2008 TLMP Amendment balanced "the 

many competing uses to which land can be put." 1d. Of particular concern to plaintiffs here is 

how the Forest Service balanced the needs of the timber industry with the other uses of the 

Tongass. Accordingly, the Court will focus on those components ofthe 2008 TLMP 

Amendment that are relevant to that issue. 

The 2008 TLMP Amendment sets forth the Forest Service's vision for how the 16.8 

million acres of the Tongass will be managed. To do so, the Forest Service uses land 

management planning, which "may be compared to city, county, or borough zoning. Just as areas 

-4-
135 

Case 1 :08-cv-01598-JDB Document 33 Filed 02/17/10 Page 5 of 23 

in a community are zoned as commercial, industrial, or residential, the forest is also zoned to 

allow, or not allow, various uses and activities." 2008 TLMP Amendment FEIS at 2-1. Forest 

plan "zoning" is accomplished by employing land usc designations, which "specify ways of 

managing an area of land and the resources it contains." I d. For example, land may be 

designated to protect certain resources, such as old growth wildlife habitats, or it may be 

designated to pcm1it the harvest of resources, such as timber or minerals. Sec id. ln addition, 

lands may be designated to pem1it a combination of activities on the land, "such as providing for 

scenic quality in combination with timber harvesting." !d. As relevant here, in the 2008 TLMP 

Amendment the Forest Service designated 1.22 million acres of the Tongass as "old growth 

reserves," with the result that timber harvesting is prohibited on these lands. Sec 2008 TLMP 

Amendment ROD at 5. The Forest Service also has designated approximately 2.3 million acres 

of the Tongass for timber production, of which 663,000 acres are available for the timber harvest 

while the 2008 TLMP Amendment remains in effect. See id. at 5-6. 

The 2008 TLMP Amendment also includes the Forest Service's projection of market 

demand for timber from the Tongass. A Tongass forest plan must include a projection of market 

demand for timber so the Forest Service can fulfill its statutory obligation under the TTRA to 

seek to meet market demand. To reach a projection of demand, and to assess whether the Plan 

would supply enough timber to satisfy that demand, the Forest Service primarily relied on a 

forecast of market demand prepared by the Pacific Northwest Research Station. See 2008 TLMP 

Amendment ROD at 31-35 (discussing Allen M. Brackley, et al., Timber Products Output and 

Timber Harvests in Alaska: Projections for 2005-2025 (2006)). The study "project[ed] the 

demand for timber from the Tongass, [which was] derived from the demand in Pacific Rim 

-5-
136 

Case 1 :08-cv-01598-JDB Document 33 Filed 02/17/10 Page 6 of 23 

markets for the end products manufactured from that timber." ld. at 31. It gave four different 

scenarios of timber demand --limited lumber, expanded lumber, medium integrated, and high 

integrated-- projecting a range of future average demand for Tongass timber. See id. The 

scenarios represent a spectrum of market demand, with "limited lumber" projecting the lowest 

levels of market demand and "high integrated" projecting the highest levels of market demand. 

I d. Under the scenario deemed most likely-- "expanded lumber" -- market demand is projected 

to range from 61.9 million board feet in 2007 to 187.1 million board feet in 2022, the end of the 

planning cycle for the 2008 TLMP Amendment. See id. at 33. The Forest Service adopted the 

expanded lumber scenario as the measure of market demand in its Tongass forest plan. See id. at 

35.2 

Based on the demand scenario it adopted, the Forest Service approved a Tongass forest 

plan that set the allowable sale quantity of timber for the next ten years at 2.67 billion board feet, 

or an average of267 million board feet annually. See id. The allowable sale quantity "represents 

the upper decadallimit on the amount of timber that may be offered for sale from suitable 

timberland in the Tongass National Forest as part of the regularly scheduled timber sale 

program." Nat. Res. Def. Council, 421 F.3d at 802 n.lO (internal quotation marks omitted). The 

Forest Service determined that an allowable sale quantity of267 million board feet annually not 

only would satisfY projected market demand, but also would ensure that the Forest Service could 

2 Plaintiffs do not challenge the Forest Service's reliance on the Pacific Northwest 

Research Station's report, or the Forest Service's selection of the expanded lumber scenario as the 

correct projection of market demand. 

-6-
137 

Case 1 :08-cv-01598-JDB Document 33 Filed 02/17/10 Page 7 of 23 

meet unforeseen or changing market condilions. 3 

One such changing market condition the Forest Service considered was lhe development 

of an integrated limber industry. Il concluded that the 2008 TLMP Amendment should be 

flexible enough to provide sufficient timber to create an "integrated timber industry" in Southeast 

Alaska. See 2008 TLMP Amendment ROD at 35. An integrated industry "is one that includes 

processing facilities and markets for all types of logs from limber harvest operations conducted in 

the area, and for byproducls such as chips that result from processing those logs into lumber or 

other products." Id. Although such an industry does not currently exist in Southeast Alaska, lhc 

Forest Service "considcr[cd] il important to provide an opportunity for the timber industry to 

become more integrated." ld. at 36. Relying on the Pacific Northwest Research Station's study, 

the Forest Service concluded that "a reliable annual supply of at least 200 million board feel of 

economic timber would be needed from the Tongass to meet the objective of providing an 

opportunity for the reestablishment of an integrated industry." Id. at 37. An allowable sale 

quantity of timber of 267 million board feet annually permitted this opportunity. See id. ("none 

of the alternatives with an [allowable sale quantity]lower than the amended Forest Plan's meet 

[the] criterion" of providing enough timber to supply a potentially integrated industry). 

Finally, to guide the timber harvest in the Tongass and to protect environmentally 

sensitive areas, the Forest Service implemented what it termed the Timber Sale Program 

Adaptive Management Strategy. See id. at 64 ("The Strategy is an extra step the Forest Service is 

3 Plaintiffs do not challenge the Forest Service's selection of 2.67 billion board feet as the 

allowable sale quantity over the next decade, or the conclusion that 267 million board feet 

annually is sufficient to both meet projected market demand and provide enough timber to meet 

changing market conditions. 

-7-
138 

Case 1:08-cv-01598-JDB Document 33 Filed 02/17/10 Page 8 of23 

taking to respond to recommendations from many parties that we avoid timber harvest and road 

construction in areas of the Tongass that are perceived as being more environmentally sensitive 

.... "). Under the Strategy, the "timber harvest will be allowed in three phases as a means of 

limiting timber harvest and associated road construction activities to lower quality roadless areas 

until the level of timber harvest warrants allowing such activities in higher quality roadless 

areas." ld. at 8. The parts of the forest available to the timber harvest under the 2008 TLMP 

Amendment are divided into four separate areas: roaded, lower value roadless areas, moderate 

value roadless areas, and higher value roadless areas. ld. Based on these divisions, timber 

harvest and associated road construction is allowed in these areas in three phases, which come 

into effect if necessary to meet market demand. I d. at 65-66. Phase one includes roadcd areas 

and most of the lower value roadless areas; phase two includes phase one lands and most of the 

moderate value roadless areas; and phase three includes the entire land base suitable for the 

timber harvest. I d. The Timber Sale Adaptive Management Strategy limits the timber harvest to 

phase one areas until timber harvest levels reach at least I 00 million board feet per year for two 

consecutive years. ld. at 65. If that threshold is met, phase two lands become available for the 

timber harvest. I d. at 66. If the harvest levels reach at least !50 million board feet per year for 

two consecutive years, phase three lands become available for the timber harvest. ld. 

c. 

Plaintiffs bring suit under the Administrative Procedure Act, seeking declaratory and 

injunctive relief on the grounds that the 2008 TLMP Amendment violates ANILCA and the 

TTRA. In their complaint, plaintiffs challenge three components of the Plan. First, they contend 

that the "old growth reserves" land usc designation, which in their view withdraws more than 

-8-
139 

Case1:08-cv-01598-JDB Document33 Filed02/17/10 Page9of23 

5,000 acres from the timber harvest, violates ANILCA's provision prohibiting such executive 

branch withdrawals. Sec Compl. at p. 23. They opine that because the Forest Service neither 

sent notice of the designations to both houses of Congress nor obtained a joint congressional 

resolution authorizing the designations, the "old growth reserves" designations are illegal under 

ANILCA. 

Second, plaintiffs argue that the Timber Sale Adaptive Management Strategy "withdraws 

so much of the commercial forestland base as to e!Teclively destroy the Forest Service's ability to 

exercise its discretion to meet market demand for an integrated limber industry." Compl. 'IJ4. In 

other words, plaintiffs posit that the Strategy "ha[ s J rendered it improbable that Defendants 

could" fulfill their obligation under the TTRA to seck "to meet market demand for an integrated 

timber industry." Compl. ,[51. 

Third, plaintiffs suggest that the 2008 TLMP Amendment imposes "non-statutory" 

constraints on the Forest Service's "mandatory obligation under TTRA to seek to meet market 

demand." Pis.' Mem. in Supp. of Mot. for Partial Summ. J. ("Pis.' Mem.") [Docket Entry 16), at 

38. That is, plaintiffs insist that certain elements of the Plan, including the Timber Sale Adaptive 

Management Strategy, limit the Forest Service's ability to seek to meet the market demand for an 

integrated timber industry. See Pis.' Reply in Supp. of Mot. for Partial Summ. J. ("Pis.' Reply") 

[Docket Entry 18], at 40, 41. 4 

4 In their complaint, plaintiffs also argue that the 2008 TLMP Amendment has 

"effectively repealed ... [the National Forest Management Act]." Compl. 'IJ 51. But in response 

to the Court's question regarding what claims plaintiffs were asserting in this action, plaintiffs' 

counsel did not include the claim based on the National Forest Management Act. Moreover, the 

single statement that the 2008 TLMP Amendment "effectively repealed" the National Forest 

Management Act is insufficient to state a claim, especially where plaintiffs have not even 

identified the provisions of the Act at issue. 

-9-
140 

Case 1 :08-cv-01598-JDB Document 33 Filed 02/17/10 Page 10 of 23 

II. 

Under Fed. R. Civ. P. 56( c), summary judgment is appropriate when the pleadings and 

the evidence demonstrate that "there is no genuine issue as to any material fact and that the 

moving party is entitled to judgment as a matter of law." In a case involving review of a final 

agency action under the Administrative Procedure Act, 5 U.S.C. § 706, however, the standard set 

forth in Rule 56( c) does not apply because of the limited role of a court in reviewing the 

administrative record. Sec Prof'! Drivers Council v. Bur. of Motor Carrier Safety, 706 F.2d 1216, 

1229 (D.C. Cir. 1983); Sierra Club v. Mainella, 459 F. Supp. 2d 76, 89-90 (D.D.C. 2006). The 

agency resolves factual issues in a manner that is supported by the administrative record. 

Summary judgment is then the mechanism for deciding whether as a matter of law the agency 

action is supported by the administrative record and is otherwise consistent with the APA 

standard of review. Sec Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402,415 

(1971); Sw. Merchandising Corp. v. Nat. Labor Relations Bd., 53 F.3d 1334, 1341 (D.C. Cir. 

1995); Richard v. Immigration & Naturalization Serv., 554 F.2d 1173, 1177 & n.28 (D.C. Cir. 

1977). 

A court must "hold unlawful and set aside agency action, findings, and conclusions" that 

are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," 5 

U.S.C. § 706(2)(A), in excess of statutory authority, id. § 706(2)(C), or "without observance of 

procedures required by law," id. § 706(2)(D). The scope of review, however, is narrow. See 

Motor Vehicle Mfrs. Ass'n ofU.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29,43 

(1983). It presumes the agency's action is valid. See Volpe, 401 U.S. at 415. And the "court is 

not to substitute its judgment for that of the agency." State Farm, 463 U.S. at 43. Moreover, 

-10-
141 

Case 1 :08-cv-01598-JDB Document 33 Filed 02/17/10 Page 11 of 23 

where an agency "is evaluating scientific data within its technical expertise," the Court must give 

the agency "an extreme degree of deference." Am. Farm Bureau Fcd'n v. Envtl. Prot. Agency, 

559 F.3d 512,519 (D.C. Cir. 2009) (internal quotation marks omitted); see also Am. Radio Relay 

League, Inc. v. Fed. Commc'n Comm'n, 524 F.3d 227,233 (D.C. Cir. 2008) ("Where a 'highly 

technical question' is involved, 'courts necessarily must show considerable deference to an 

agency's expertise."' (quoting MCI Cellular Tel. Co. v. Fed. Commc'n Comm'n, 738 F.2d 1322, 

1333 (D.C. Cir. 1984))). But the court must be satisfied that the agency has "'examine[ d) the 

relevant data and articulate[ d] a satisfactory explanation for its action including a rational 

connection between the facts found and the choice made."' Alpharma, Inc. v. Leavitt, 460 F.3d I, 

6 (D.C. Cir. 2006) (quoting State Farm, 463 U.S. at 43). 

III. 

Plaintiffs contend that the "old growth reserves" land use designation in the 2008 TLMP 

Amendment violates 16 U.S.C. § 3213(a), ANILCA's provision prohibiting executive branch 

withdrawals. According to plaintitTs, the "old growth reserves" designation has the effect of 

closing the designated land to the timber harvest. See Pis.' Mem. at 20; Pis.' Reply at 2. And 

because this land is closed to the timber harvest, plaintiffs posit that the "old growth reserves" 

designation "withdraws" land within the meaning of 16 U.S.C. § 3213(a). Hence, in plaintiffs' 

view, the "old growth reserves" designation can be upheld only if the Forest Service notifies 

Congress and seeks a joint resolution approving the designation. The Forest Service has not 

done so, and therefore plaintiffs contend that the 2008 TLMP Amendment is not "in accordance 

with law." Pis.' Mcm. at 25. 

-11-
142 

Case 1 :08-cv-01598-JDB Document 33 Filed 02/17/10 Page 12 of 23 

Although plaintiffs' argument rests on the assumption that the statutory definition of a 

withdrawal encompasses land use designations, plaintiffs never define the term "withdrawal." 

Nor, to be fair, does ANTLCA. Tn the absence of a definition of the term in ANTLCA the Court 

must look to how other, related statutes define withdrawal, see, e.g., Arlington Cent. School Dist. 

Bd. ofEduc. v. Murphy, 548 U.S. 291, 300-03 (2006); Pierce v. Underwood, 487 U.S. 552, 564-

65 (1988), as well as to the context in which the term is used in the statute at issue, see, e.g., 

Gustafson v. Alloyd Co., 513 U.S. 561,569 (1995); United Savings Ass'n of Texas v. Timbers of 

Inwood Forest Assocs., 484 U.S. 365, 371 (1988). 

One such related statute is the Federal Land Policy and Management Act, which, like 

ANTLCA, governs the management of certain federal lands. Under that statute, a withdrawal is 

statutorily defined as a "withholding [of] an area ofFcdcralland from settlement, sale, location, 

or entry, under some or all of the general land laws, for the purpose of limiting activities under 

those laws in order to maintain other public values in the area or reserving the area for a 

particular public purpose or program." 43 U.S.C. § l702(j). Interpreting that provision, the D.C. 

Circuit described a withdrawal as an action that "exempts the covered land from the operation of 

public land laws." New Mexico v. Watkins, 969 F.2d 1122, 1124 (D.C. Cir. 1992); see also 

Sagebmsh Rebellion, Tnc. v. Hodel, 790 F.2d 760, 761 n.l (9th Cir. 1986)("A withdrawal 

withholds an area of federal land from sale, lease or use under the general land laws ... in order 

to preserve a public value in the area or for a public purpose."). Public, or general, land laws 

"authorize the transfer of federal lands to the private domain." Sagebmsh Rebellion, 790 F.2d at 

761 n.l. Putting the definitions together, then, a withdrawal exempts covered land from the 

-12-
143 

Case 1 :08-cv-01598-JDB Document 33 Filed 02/17/10 Page 13 of 23 

operation of laws that otherwise authorize the transfer of federal lands to the private domain for 

private use. 

This definition accords with the way several other provisions of ANJLCA use the term 

withdrawal. For example, in a provision discussing ANILCA's effect on withdrawals of land 

made prior to ANJLCA's passage, Congress stated that withdrawn lands "shall not be deemed 

available for selection, appropriation, or disposition." 16 U.S.C. § 3209(a). The phrase 

"selection, appropriation, or disposition" echoes the phrase "settlement, sale, location, or entry" 

used in the Federal Land Policy and Management Act's definition of withdrawal. Furthermore, in 

an ANILCA provision regarding mineral leasing rights, Congress found that certain lands "arc 

... withdrawn from all forms of appropriation or disposal under public land laws." 16 U.S.C. § 

410hh-5. This construction mirrors the D.C. Circuit's description that a withdrawal under the 

Federal Land Policy and Management Act "exempts the covered land from the operation of 

public land laws." Watkins, 969 F.2d at 1124.5 The statutory evidence, then, supports the 

application of the Federal Land Policy and Management Act's definition of withdrawal to 

ANILCA.6 

5 The Federal Land Policy and Management Act's definition of withdrawal also reOccts 

the general use of the tcnn in public land jurisprudence: "A withdrawal makes land unavailable 

for certain kinds of private appropriation under the public land laws." So. Utah Wilderness 

Alliance v. Bureau of Land Mgmt., 425 F.3d 735, 784 (lOth Cir. 2005) (citing Charles F. 

Wheatley, Jr., Il Study of Withdrawals and Reservations of Public Domain Lands A-1 (1969)). 

"Just as Congress ... can pass laws opening the public lands to private settlement, so also it can 

remove the public lands Ji·om the operation of those same laws. That is what a withdrawal docs." 

ld. 

6 It is reasonable to believe that Congress wrote ANICLA with the Federal Land Policy 

and Management Act's definition of withdrawal in mind given that Congress passed the Federal 

Land Policy and Management Act just four years before ANJLCA. Compare Federal Land 

Policy and Management Act, Pub. L. No. 94-579, 90 Stat. 2743 (Oct. 21, 1976), with ANILCA, 

-13-
144 

Case 1 :08-cv-01598-JDB Document 33 Filed 02/17/10 Page 14 of 23 

Because other provisions of ANILCA reflect the definition of withdrawal set forth in the 

Federal Land Policy and Management Act, the Court is persuaded that the term withdrawal in 16 

U.S.C. § 3213(a) should be given that definition as well. See United Savings Ass'n of Texas, 

484 U.S. at 371 ("A provision that may seem ambiguous in isolation is often clarified by the 

remainder of the statutory scheme .... "). Accordingly, for "old growth reserve" land use 

designations to be withdrawals, they must "exempt[] the covered land from the operation of 

public land laws." Watkins, 969 F.2d at 1124. But plaintiffs make no allegations that the 

designations here have the effect of suspending any public lands laws. Nor could they. 

Land usc designations -- which arc part of nearly every forest plan7 -- arc merely 

examples of the Forest Service's statutory responsibility under the National Forest Management 

Act to "provide for multiple use and sustained yield of the products and services of units of the 

National Forest System." 16 U.S.C. § 1604(c). They neither exempt lands from the operation of 

public land laws, nor suspend the operation of those laws on certain lands. Land use 

designations simply have no effect on laws that authorize the transfer of federal lands to the 

private domain-- and plaintiffs have not pointed this Court to any authority suggesting 

otherwise. Indeed, the only court to consider plain tiffs' contention that land use designations arc 

withdrawals summarily rejected it. See Seattle Audubon Society v. Lyons, 871 F. Supp. 1291, 

1315 (W.D. Wash. 1994). Considering a challenge under the Federal Land Policy and 

Management Act, the Lyons court held that employing land use designations was "merely an 

Pub. L. No. 96-487, 94 Stat. 2371 (Dec. 2, 1980). 

7 Sec, e.g., Lands Council, 395 F.3d at 1033 (discussing land usc designations); Morrison, 

67 F.3d at 726 (same). 

-14-
145 

Case 1 :08-cv-01598-JDB Document 33 Filed 02f17f1 0 Page 15 of 23 

exercise of the Secretary's multiple-usc planning responsibilities," and thus could not be a 

withdrawal. & So too here. 

The Forest Service's responsibility under the National Forest Management Act to plan for 

multiple uses necessarily means that not all lands are available for all purposes. See, e.g., 16 

U.S.C. § 1604(g)(3)(E) (Forest Service must ensure that timber will be harvested from National 

Forest System lands only where, for example, "(i) soil, slope, or other watershed conditions will 

not be irreversibly damaged"); id. § 1604(k) ("In developing land management plans pursuant to 

this subchapter, the Secretary shall identify lands within the management area which arc not 

suited for timber production, considering physical, economic, and other pertinent factors to the 

extent feasible .... "). To accept plaintiffs' argument that land use designations arc withdrawals 

would be to assume that Congress implicitly repealed this "multiple usc" approach, arrogating 

power to promulgate forest plans. The Court finds no reason to read ANILCA so broadly when 

its plain language and context support a more measured construction. That construction, the 

Court notes, accords with the fact that "Congress has given no indication as to the weight to be 

assigned each value and it must be assumed that the decision as to the proper mix of uses within 

any particular area is left to the sound discretion and expertise of the Forest Service." Sierra 

Club v. Hardin, 325 F. Supp. 99, 123 (D. Alaska 1971); accord Mountain States Legal Found. v. 

Glickman, 922 F. Supp. 628, 634 (D.D.C. 1995) ("District courts have also held that the Forest 

Service has wide discretion to weigh and decide the proper uses within any area of the National 

Forests."), aff'd, 92 F.3d 1228 (D.C. Cir. 1996). Accordingly, the land usc designations of"old 

-15-
146 

Case 1 :08-cv-01598-JDB Document 33 Filed 02/17/10 Page 16 of 23 

growth reserves" in the 2008 TLMP Amendment are not withdrawals under 16 U.S. C. § 

3213(a)." 

Nevertheless, plaintiffs suggest that the Court need not be guided only by the statutory 

definition of withdrawal. Instead, according to plaintiffs, the "realities o[the situation" should 

infom1 the Court's analysis-- and because the "old growth reserves" are closed to the timber 

harvest, they must, as a practical matter, be withdrawals under 16 U.S.C. § 3213(a). For this 

argument, plaintiffs rely on Mountain States Legal Found. v. Andrus, 499 F. Supp. 383 (D. Wyo. 

1980). At issue there was whether the Secretary of the Interior's failure to act on applications for 

mineral leases that had been pending before him [or several years was a withdrawal under the 

Federal Land Policy and Management Act. See Mountain States, 499 F. Supp at 393, 396. The 

court concluded that the Secretary's delay in acting on the lease applications precluded plaintiffs 

from ever perfecting a potential property right under federal law. Sec id. at 397. The delay had 

the effect of preventing plaintiffs from exercising their right to seek mineral leases on federal 

land under the public land laws. See id. Tn the court's view, "the realities of the situation" meant 

that delay was tantamount to a prohibition of private action on certain federal land. See id. 

The Mountain States decision cannot bear the weight plaintiffs assign to it. To begin 

with, the Ninth Circuit rejected the decision's reasoning as unpersuasive. See Bob Marshall 

Alliance v. Hodel, 852 F.2d 1223, 1230-31 (9th Cir. 1988) ("Mountain States is not binding on 

8 Plaintiffs also suggest that areas of the Tongass identified as Timber Sale Adaptive 

Management Strategy phase two and phase three lands are withdrawals under 16 U.S.C. § 

3213(a). Cornpl. ~57; see also Pis.' Reply at 15. But these lands are not closed even to the 

timber harvest-- the Timber Sale Adaptive Management Strategy merely indicates at what point 

these lands may be harvested. And, in any event, the Strategy, as with the "old growth reserves," 

does not purport to suspend any public land Jaws. Plaintiffs do not contend otherwise. 

-16-
147 

Case 1 :08-cv-01598-JDB Document 33 Filed 02/17/10 Page 17 of 23 

us and we do not find its reasoning persuasive."). Plaintiffs suggest that this Court should 

nevertheless follow Mountain Stales and imbue the statutory definition of withdrawal with a 

practical component. This Court does not read the case so broadly. Mountain States merely 

applied the Federal Land Policy and Management Act's definition of withdrawal--the Secretary's 

delay was a withdrawal because it had the effect of suspending the operation of public land laws 

that granted private individuals the right to apply for mineral leases on public lands. !d. at 396-

97. It spoke of the "realities of the situation" only because there was no executive branch action 

that affim1atively suspended the public land laws. The court did not, therefore, create an 

alternative, more practical definition of withdrawal. Accordingly, Mountain States is inapposite 

to plaintiffs' ANlLCA challenge. 

IV. 

Plaintiffs next assert that the 2008 TLMP Amendment violates the TTRA because the 

Timber Sale Adaptive Management Strategy "withdraws so much of the commercial forest land 

base as to effectively destroy the F orcs! Service's ability to exercise its discretion to meet market 

demand for an integrated timber industry." Compl. ~ 4 (emphasis added). That is, plaintiffs 

believe that the Strategy "ha[s] rendered it improbable that Defendants could" fulfill their 

obligation under the TTRA to seek "to meet market demand for an integrated timber industry." 

Compl. ,I 51. This challenge, however, proceeds from the erroneous premise that the TTRA 

obligates the Forest Service to seek to meet the market demand for an integrated timber industry. 

In fact, the TTRA only instructs the Forest Service to "seek to provide a supply of timber from 

the Tongass National Forest which (I) meets the annual market demand for timber from such 

forest and (2) meets the market demand from such forest for each planning cycle." 16 U.S. C.§ 

-17-
148 

Case 1 :08-cv-01598-JDB Document 33 Filed 02/17/10 Page 18 of 23 

539d(a); see also Natural Res. Def. Council, 421 F.3d at 809 (Forest Service attempted to meet 

market demand by "using its own economists' projections of the annual and plan-cycle market 

demand for Tongass timber"). The TTRA says nothing at all about an integrated timber industry. 

The Forest Service has discretion to make predictions of market demand. Accordingly, 

the Forest Service could project market demand based on the needs of an integrated timber 

industry. In that case, the TTRA might indeed oblige the Forest Service to seek to meet market 

demand for an integrated timber industry. But in the 2008 TLMP Amendment, the Forest 

Service chose a projection of market demand lhal was not based on an integrated limber industry 

--which in fact does not currently exist in the Tongass. See 2008 TLMP Amendment ROD at 

31-35. It explicitly rejected two projections that were based on an integrated timber industry, and 

explained why it was doing so. See id. Therefore, the Forest Service is not obligated under the 

TTRA to seek to meet the market demand of an integrated timber industry in the 2008 TLMP 

Amendment. 

Nevertheless, plaintiffs repeatedly, and consistently, contend that the 2008 TLMP 

Amendment and its Timber Sale Adaptive Management Strategy prevent the Forest Service from 

seeking to meet market demand for an integrated timber industry. See, e.g., Compl. ,I 3 (the 2008 

TLMP Amendment "effectively eliminat[ es] the Forest Service's ability to exercise its discretion 

to meet annual and cyclical market demand ... by providing three years volume of economic 

limber under contract to an integrated timber industry"); Compl. 'l[4 (the Timber Sale Adaptive 

Management Strategy "withdraws so much of the commercial forest land base as to effectively 

destroy the Forest Service's ability to exercise its discretion to meet market demand for an 

integrated timber industry"); Compl. 'l[49 ("Because the Defendants have never properly 

-18-
149 

Case 1 :08-cv-01598-JDB Document 33 Filed 02/17/10 Page 19 of 23 

evaluated or determined the volume of timber and the [allowable sale quanity] to provide three 

years of economic timber under contract to an integrated industry, it follows that [the Strategy] is 

... arbitrary and capricious .... "); Compl. ~51 (the 2008 TLMP Amendment "ha[s] rendered it 

improbable that Defendants could exercise their discretion to provide sufficient economic timber 

to meet market demand for an integrated timber industry").9 Maybe so, but plaintiffs' claim 

simply misses the mark. 

Plaintiffs' challenge seeks to hold the Forest Service to a standard it is not required to 

fulfill. Whether or not the Timber Sale Adaptive Management Strategy will prevent the Forest 

Service from seeking to meet the market demand of an integrated timber industry is an irrelevant 

question. Plaintiffs could have alleged that the Strategy prevents the Forest Service from seeking 

to meet its actual projection of market demand. But they did not. And the Court will not rewrite 

plaintiffs' complaint and briefs to assert the proper claim. Plaintiffs' contention that the Timber 

Sale Adaptive Management Strategy violates the TTRA therefore fails at the outset. 

9 In their litigation papers, plaintiffs similarly, and consistently, contend that the 2008 

TLMP Amendment prevents the Forest Service from seeking to meet market demand for an 

integrated timber industry. See, e.g., Pis.' Mem. at 29 ("[T]hc Forest Service will not be able to 

seek to meet market demand, which it has identified as an annual minimum of200 [million board 

feet] to reestablish an integrated industry."); id. at 30 ("Thus, [the Timber Sale Adaptive 

Management Strategy] will always be stuck in Phase 1 at 100 [million board feet], 

notwithstanding the 2008 TLMP Amendment's recognition that a minimum of200 [million 

board feet] per year is needed to seek to meet the market demand for an integrated industry."); id. 

at 33 (the Timber Sale Adaptive Management Strategy provides "only half of the volume the 

Regional Forester has determined is needed to seck to meet market demand for an integrated 

industry"); id. at34 (the Timber Sale Adaptive Management Strategy is flawed because the 2008 

TLMP Amendment "acknowledges that the industry needs a minimum of200 [million board 

feet] per year to reestablish a fully integrated industry"); id. at 44-45 (the Forest Service cannot 

"supply the volume of timber that they have identified is needed to meet market demand for an 

integrated timber industry"). 

-19-
150 

Case 1 :08-cv-01598-JDB Document 33 Filed 02/17/10 Page 20 of 23 

To be sure, in a supplemental memorandum filed at the Court's request, plaintiffs do 

suggest that the 2008 TLMP Amendment and its Timber Sale Adaptive Management Strategy 

preclude the Forest Service from meeting its own projection of market demand. See Pis.' 

Responses to the Court's January 21,2010 Questions ("Pis.' Resp.") [Docket Entry 30], at 9-10. 

This single allegation, however, is insufficient to rescue plaintiffs' claims under the TTRA. First, 

as discussed above, their complaint is devoid of any assertion that the Timber Sale Adaptive 

Management Strategy prevents the Forest Service from seeking to meet its actual projection of 

market demand. Plaintiffs' post hoc answer in a supplemental brief docs not change how they 

have consistently litigated this case. 

Second, even assuming plaintiffs properly presented a challenge to the Forest Service's 

projection of market demand, they have not provided sufficient evidence to overcome the 

"extreme degree of deference" given to an agency's evaluation of"scientific data within its 

technical expertise." Am. Farm Bureau Fed'n, 559 F.3d at 519. The Forest Service concluded 

that the 2008 TLMP Amendment and its Timber Sale Adaptive Management Strategy, "allows 

the projected level of long-term demand to be mel." 2008 TLMP Amendment ROD at 35. 

Plaintiffs, however, suggest that "[t]he failure to provide a sufficient volume of economic timber 

in the 2008 [TLMP Amendment's] 5 year timber sale schedule" renders the Forest Service unable 

to meet its own projection of market demand. Pis.' Resp. at 10. And they further contend that 

there is an insufficient amount of timber that either is available for sale or has been sold but not 

yet harvested to permit the Forest Service to meet its projection of market demand. See id. at 9. 

But plaintiffs' argument ignores the fact that "[t]he Forest Service employs a 'pipeline' 

approach to timber sale planning to provide a stable timber sale program and a continuous flow 

-20-
151 

Case 1 :08-cv-01598-JDB Document 33 Filed 02/17/10 Page 21 of 23 

of timber to regional processors." 2008 TLMP Amendment FETS at 3-334. That is, the Forest 

Service seeks to meet market demand through a mix oftimbcr available for sale, timber sold but 

not yet harvested, and timber that is being planned for sale. See id. On the basis of this pipeline, 

the Forest Service concluded that the 2008 TLMP Amendment would permit it to meet its actual 

projections of market demand. See 2008 TLMP Amendment ROD at 35. 

Although the Court recognizes that the Forest Service and plaintiffs disagree on this 

point, the Court cannot say that the Forest Service's conclusion is incorrect. Plaintiffs have not 

provided the necessary evidence to overcome "'the considerable deference to an agency's 

expertise"' where "a 'highly technical question' is involved." Am. Radio Relay League, Inc., 524 

F.3d at 233 (quoting MCI Cellular Tel. Co., 738 F.2d at 1333). They have not, for example, 

shown that the Forest Service will not be able to meet market demand for each year the 2008 

TLMP Amendment is in effect. In fact, they concede that even without any further timber sales, 

there is enough timber in the "pipeline" to meet market demand through 2012. See Pis.' Rcsp. at 

9. Furthermore, plaintiffs' position does not take into account timber sales conducted under the 

Timber Sale Adaptive Management Strategy, which will likely increase the amount of timber in 

the pipeline. See Defs.' Responses to the Court's January 21, 2010 Questions [Docket Entry 31], 

at 2. The Court simply cannot conclude, in the absence of any evidence marshaled by plaintiffs, 

that the 2008 TLMP Amendment will not meet the Forest Service's projection of market demand. 

Nor can plaintiffs save their cause by pointing to the fact that in the 2008 TLMP 

Amendment the Forest Service recognized the importance of"provid[ing] an opportunity for the 

timber industry to become more integrated." 2008 TLMP Amendment ROD at 36. In the Plan, 

the Forest Service concluded that the 2008 TLMP Amendment should be flexible enough to 

-21-
152 

Case 1 :08-cv-01598-JDB Document 33 Filed 02/17/10 Page 22 of 23 

provide sufficient timber to create an integrated industry. See id. at 36-37. Relying on the 

Pacific Northwest Research Station's study, the Forest Service found that "a reliable annual 

supply of at least 200 million board feet of economic timber would be needed from the Tongass 

to meet the objective of providing an opportunity for the reestablishment of an integrated 

industry." Id. at 37. It therefore set the allowable sale quantity of timber at267 million board 

feet annually to provide that opportunity. This decision merely builds 11cxibility into the 2008 

TLMP Amendment such that the forest plan could, in the Forest Service's expert view, 

potentially meet the market demand associated with any integrated industry that develops. It 

docs not, however, alter the Forest Service's projections of market demand. And therefore it has 

no effect on the Forest Service's obligation under the TTRA to seek to meet the actual market 

demand projection. 

v. 

Finally, plaintiffs also suggest that the 2008 TLMP Amendment imposes "non-statutory" 

constraints on the Forest Service's seek-to-meet obligation-- limitations, plaintiffs opine, that 

preclude the Forest Service from fulfilling its obligations under the TTRA. As the Court 

discussed in Part IV, however, plaintiffs do not contend in their complaint or in their briefing that 

the 2008 TLMP Amendment will preclude the Forest Service from seeking to meet its actual 

projection of market demand. Hence, they present no allegation or argument that the "nonstatutory" constraints specifically limit the Forest Service's ability to seck to meet market 

demand. Rather, plaintiffs specifically cast their "non-statutory" constraints argument, as they do 

their challenge to the Timber Sale Adaptive Management Strategy, in terms of the market 

-22-
153 

Case 1 :08-cv-01598-JDB Document 33 Filed 02/17/10 Page 23 of 23 

demand for an integrated timber industry. See, e.g., Pis.' Reply at 36, 40, 41. Plaintiffs' "nonstatutory" constraints argument therefore also fails at the threshold. 10 

VI. 

For the foregoing reasons, defendants' motion for summary judgment will be granted, and 

plaintiffs' motion for summary judgment will be denied. A separate order has been issued on this 

date. 

Dated: February 17, 20 1 0 

JOHN D. BATES 

United States District Judge 

10 Plaintiffs would fare no better even if the Court reached the merits of their challenge. 

Although plaintiffs' assert in their supplemental response that the 2008 TLMP Amendment and 

its Timber Sale Adaptive Management Strategy preclude the Forest Service from seeking to meet 

its actual projection of market demand, sec Pis.' Resp. at 9-10, the Court has already concluded 

that the response does not provide sufficient evidence to overcome the "considerable deference" 

given to agency evaluations of"scicntific data within its technical expertise," sec Am. Farm 

Bureau, 559 F.3d at 512; sec also Part IV, supra. That conclusion applies with equal force to 

plaintiffs' "non-statutory" constraints argument. 

-23-
154 

&Cherot James H. listel' 

William P. Horn 

Zach D. Ohion 

Respond to D.C Office 

T. 202.569.5800 F. 202.659.1027 

jlister@'dcbhb.com; -lA'horn@dc.bhb.com 

The Honorable Lisa Murkowski 

709 Hart Senate Building 

Washington, D.C. 20510 

The Honorable Maria Cantwell 

511 Hart Senate Office Building 

Washington, D.C. 20510 

December 28, 2015 

Re: Written T"'"*''"'""'" of Alaska Professional Hunters Association for 

to Receive Testimony on Implementation 

Lands Conservation Act of 1980 

Dear Senators Murkowski and Cantwell: 

The Alaska Professional Hunters Association ("APHA") respectfully submits tills written 

testimony through its undersigned attorneys. This letter is also signed by John Stacey, APHA's 

Director of Government Relations. 

The APHA appreciates you holding a hearing to examine the implementation of the Alaska 

National Interest Lands Conservation Act' {"ANILCA") on its 35th anniversary. The law struck a 

careful balance between protecting the "national interest" in the lands of Alaska while providing 

"adequate opportunity for satisfaction of the economic and social needs of the State of Alaska 

and its people."2 In many ways the law has lived up to its stated purpose of protecting 

"recreational opportunities" including "sport hunting"3 and has allowed many opportunities for the 

APHA and its clients. 

The APHA was founded in 1971 and now represents more than 127 registered and master 

hunting guides. 90 percent of Alaska's active guides are Alaskan residents. APHA members are 

among the world's most experienced hunting guides. They provide hunters from around the world 

with safe and enjoyable opportunities to hunt in the wilds of Alaska. A recent study estimated that 

in 2012, 1,620 people were directly employed in Alaskan guiding activity, earning $21 million in 

direct wages and guide income and generating a total of $78 million in economic activity. That 

includes $25 million in economic activity in rural communities surrounding the large conservation 

1 Public Law 96-487 (1 980), 2 ANILCA § 101(d). 3 ANILCA § 101(b) 

1127 West Seventh Ave, Anchorage, AK 99501-3301 115615th SL N.W., S!e. 1020, Washington, D.C. 20005-1754 

T 907.276.1550 ·800.478.1550 F 907.276.3680 T202.659.5800 • F202.659.1027 
155 

December 28, 2015 

Page 2 of6 

units created by ANILCA. As you review the implementation of ANilCA, we would like to share 

some of our concerns and propose some solutions. 

Temporary Campsites 

ANILCA § 1316was intended to insure that hunters would be able to establish appropriate 

campsites. The section said that "On public lands where the taking of fish and wildlife is 

permitted" the Department of Interior allow "existing uses" and "future establishment" of 

"temporary campsites, tent platforms, shelters" and similar facilities, subject only to "reasonable 

regulation." The House and Senate reports accompanying ANILCA made clear that this section 

was intended to protect the livelihood of hunting guides. Section 1316 goes on to allow guides to 

leave temporary campsites in place from season to season. 

Unfortunately, !he Department of Interior has begun to ignore this clear legislative 

command. As one example, a 2011 "Invitation fer Proposals to Conduct Commercial Big Game 

Guide Services Within Areas of the Arctic National Wildlife Refuge ("ANWR")"4 forbade base 

camps in most of the significant river valleys in ANWR That is problematic, because those river 

valleys are the only suitable locations with durable surfaces to support aircraft necessary to supply 

a base camp. This has forced guides to make do with camps not suited to their needs. This 

limitation should not have been put in place. The presence of the restriction suggests that ANWR 

officials are not properly recognizing rights granted by ANILCA. No finding has been made that 

continued use of the river valleys would fall within any of the narrow exceptions to Section 1316.5 

Access for Traditional Activities and to In holdings 

ANILCA § 1 i 10 applies "notwithstanding" any "other law" as it explicitly protects access 

by snowmachines, motorboats, and airplanes on the refuges for traditional activities (such as 

hunting) and access to inholdings. As such, access to the land is "open until closed" by 

reasonable regulations and the federal government must provide notice and hearing before 

closing access. These regulations were litigated by Trustees for Alaska and upheld by the Court 

Unfortunately, when awarding concessions the Department often tips the scales to those 

willing to fly less, boat less, or snowmachine less. The federal regulators seem to forget that 

these forms of access are mandated and guaranteed. The Department contravenes ANILCA by 

extorting the guides to give up these rights via the pemrit competition process. Way back in 

1977, Congressional leaders traveled to Fairbanks, Alaska for a hearing on this matter and 

promised the then President of APHA Ken Fanning that what became ANILCA would include 

4 Issued Aug. 1, 2011, revised Sept 26, 2011. 5 The U.S. Fish and Wildlife Service has not even started the type of administrative proceeding 

necessary to override the normal right to place temporary campsites in ANWR. ANILCA § 1316(b) 

says that"the Secretary may determine, after adequate notice, that the establishment and use of 

such new facilities or equipment would constitute a significant expansion of existing facilities or 

uses which would be detrimental to the purposes for which the affected conservation system unit 

was established, including the wilderness character of any wilderness area within such unit, and 

may thereupon deny such proposed use or establishment" 

2 
156 

December 28, 2015 

Page 3 of 5 

access guarantees to facilitate continued guided fishing and hunting on set-aside lands. It is 

frustrating that Congress made good on that promise, but the federal bureaucracy now ignores 

that command. 

Unne_J;essary Harm From Federal Shutdowns 

In recent years, the U.S. Fish and Wildlife Service has taken the unfortunate position that 

a federal government shutdown must stop outdoor activity on federal lands in Alaska, even though 

such lands encompass such a vast portion of the state. We believe this is both unnecessary and 

out of step with ANILCA's requirement that lands stay "open until closed." Federal lands in Alaska 

are intended to provide, in part, for the economic needs of the Alaskan people and AN!LCA § 203 

says 'hunting shall be permitted in areas designated as national preserves." APHA guides have 

a limited number of opportunities to serve customers each season, and each hunt is typically 

planned months or years in advance. These hunts are performed in the wilderness, often without 

ever coming in contact with a federal government employee. 

In late 2013, the federal government's spending authority lapsed and the U.S. Fish and 

Wildlife Service declared that "all units of the National Wildlife Refuge System nationwide are 

closed to public visitation and use."6 The State of Alaska sued to be able to conduct routine 

research and management activities and APHA intervened to ensure its members could utilize 

their guiding permits that are vital to their income. We argued that under ANILCA § 111 O(a) and 

its implementing regulations/ closing refuges or cancelling hunting permits required a level of 

public participation that the Department of Interior failed to undertake. Ultimately, the lawsuit was 

dismissed as moot when the shutdown ended. That is unfortunate because in the latest U.S. Fish 

and Wildlife Service shutdown plans, !he agency still claims that, in the absence of appropriations, 

it must close refuge areas with few exceptions. 8 

We were not able to protect ourselves in court, because !he shutdown ended before the 

case could be heard. Accordingly, we ask you to take steps to ensure access to federal land 

when the federal government has not provided a justification for denying access. One approach 

we recommend isS. 146, legislation introduced by Sen. Jeff Flake (R-AZ). His bill would allow 

states to fund the continued operation of federal land units during a shutdown, should they choose 

to do so. 

Another option is to provide that a lapse of appropriations would not prevent access by 

guides and other professionals holding permits to lead activitles on federal lands. Part of the 

permit-awarding process is determining that the guide or other professional has !he skill set 

necessary to safely lead the public on activities in remote areas. A federal government funding 

6 See State of Alaska and Alaska Professional Hunters Association v. Sally Jewell, No 4:13-CV00034-SLG, 2014 WL 3778590 (0. Alaska July 29, 2014). 7 50 C.F.R. § 35.11(h), 3BA1(h) and 36.42(c). 8 U.S. FISH AND WILDLIFE SERVICE CONTINGENCY PLAN FOR OPERATIONS IN THE 

EVENT OF A LAPSE IN APPROPRIATIONS (September 2015), available at: 

https:flw~>vw.doi.gov/sites/doi.opengov.ibmcloud.com/files/FWS%20Contingency%20Pian%20Se 

p!%202015%209_25_15.pdf. 

3 
157 

December 28, 2015 

Page 4 of6 

lapse would not hamper that skill set Please keep in mind that federal law enforcement and 

safety employees continue to work during federal government shutdowns as they are classified 

as "emergency" personneL 

Unfortunately, the Department has repeatedly departed from AN!LCA in wildlife 

management The State of Alaska should have primacy regarding the management of resident 

fish and wildlife, including the promulgation of hunting related regulations, as provided for in the 

Alaska Statehood Act and ANILCA The 1958 Alaska Statehood Act9 provided the state authority 

over "tl1e administration, management, and conservation" of the "fish and wildlife resources of 

Alaska." ANILCA § 1314 underscores that this State authority was neither enlarged nor 

diminished by ANILCA. Moreover, Section 1313 specifies that "sport hunting ... shall be allowed 

in a national preserve under applicable State and Federal law and regulation." 

Both the National Park Service and Fish and Wildlife Service have shown a complete 

disregard for this stale primacy. The National Park Service acted through Compendia beginning 

in 2010 to close park units in Alaska to state-authorized hunts. 10 Similarly, the Fish and Wildlife 

Service closed hunting authorized by the state for the past three years on Kenai Refuge and 

published draft regulations giving themselves unilateral authority to determine what hunts to close 

in the future. 11 According to the Fish and Wildlife Se1vice website12, the agency is considering 

changes to the closure criteria and procedures that may conflict with stale hunting regulations on 

all refuges using its own determination of "natural diversity" The two agencies' pursuit of these 

three sets of regulations directly interfere in the State of Alaska's abilities to fulfill its constitutional 

responsibility to assure the conservation and sustainability of fish and wildlife within its 

boundaries. 

A Potential Solution • Revive the Alaska Land Use Council 

ANILCA § 1201 created an Alaska Land Use Council to help facilitate joint state-federal 

management. The Council had two co-chairs, each a high-level appointee. One was appointed 

by the U.S. President and one was appointed by the Stale of Alaska. The Council also included 

Regional Directors from six federal agencies, commissioners of four state agencies, and two 

Native representatives. Members met quarterly and were aided by a Staff Committee !hat 

represented them in monthly meetings to cooperate in resolution of issues related to ANILCA 

implementation. In addition, the Council had a Citizens' Advisory Commission on Federal Areas 

composed of citizens that independently reviewed federal management plans, policies, and 

regulations and made recommendations. 

s Public law 85-508 (1958) (see§ 6(e)). 10 Hunting and Trapping on National Preserves in Alaska, 80 Fed. Reg. 64325, October 23, 2015. 

i' Refuge-Specific Regulations; Public Use: Kenai National Wildlife Refuge, 80 Fed. Reg. 29277, 

May 21,2015. 12 http://www.fws.gov/alaska/nwrlak_nwr_pr.htm. 

4 
158 

December 28, 2015 

Page 5 of6 

The Council was widely deemed a success, helping keep Alaskans informed on federal 

management activities and driving consensus on federal land management plans, regulations. 

and policies. The Councll's recommendations were not binding. Instead, the law encouraged 

consensus by requiring that if a federal agency not accept a recommendation then "such agency, 

within thirty days of receipt of the recommendation, shall inform the Council, in writing, of its 

reason for such action." Unfortunately, the Alaska Land Use Council expired after 10 years. The 

Slate of Alaska has continued to fund the Citizens' Advisory Commission on Federal Areas, 

however. 

We urge Congress to adopt legislation to establish a true partnership with a revived Alaska 

land Use Council. In our mind, the existing Commission shows the State of Alaska has a 

willingness to commit resources to this effort. The missing components are a mechanism to: (1) 

require the federal government to participate, and (2) require the federal government to respond 

to recommendations from the revived Alaska Land Use Council. The legislation should retain 

flexibility to allow the state to decide to keep its existing Commission or to fold it into the revived 

Alaska Land Use Council. Because the State would coordinate and provide the minimal funding 

needed, the Commission should consist of a majority of state appointees. An additional step 

could be limiting court deference to federal agencies who disregard Council recommendations, 

with the result that the federal courts can take a fresh look at proper interpretation of ANILCA with 

respect to issues on which federal land managers have chosen to reject Council 

recommendations. 

Below, we have proposed some draft legislative text that we believe would be valuable for 

anyone that enjoys the outdoors in Alaska: 

Proposed Language for An "ANILCA Improvement Act" 

Section 1 - Consultation: The Slate of Alaska may create an Alaska land 

Use Council to facilitate collaborative land management over the federal lands 

designated by the Alaska National Interest Land Conservation Act, Public Law 96-

487. If it does, the Department of Interior and Department of Agriculture are 

instructed to participate to the extent practicable. 

Section 2 - Nonacceptance of Council Recommendations: If any federal 

agency does not accept a recommendation from the Council regarding a proposed 

federal action, such agency, within thirty days of receipt of the recommendation, shall 

inform the Council, in writing, of its reason for such action_ 

Section 3- Council Proposals for Changes to Existing Federal Regulations, 

Policies, and Decisions: lfthe Council recommends in writing that an action be taken 

by a federal agency to change existing federal regulations or policies or decisions, 

that agency shall respond in writing within six months of receipt of the 

5 
159 

December 28, 2015 

Page 6 of6 

recommendation. The agency shall state whether it will take all, some, or none of 

the requested action and provide a statement of reasons. 

Section 4 • Judicial Review: When a reviewing court decides whether an 

agency action under AN!LCA taken in contravention of Council recommendation is 

arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law 

under 5 U.S.C. § 706(2)(A), or whether an agency's decision not to take action 

recommended by the Council is contrary to 5 U.S.C. § 706(1), the court shall 

evaluate the agency's action or inaction without any deference to the agency's 

interpretations of statutes, rules, and legal principles that might other.vise be due. 

When reviewing the whole administrative record under 5 U.S.C. § 706, the court 

shall include any recommendations made by the CounciL 

Conclusion 

Thank you again for drawing attention to ANILCA and far considering our concerns 

and recommendation$. Please do not hesitate to contact any of the undersigned individuals 

if we may be of assistance. 

CC: Sen. Dan Sullivan 

Rep. Don Young 

Sincerely yours, 

BIRCH, HORTON, BITTNER AND CHEROT, P C, 

Director of Relations 

Alaska Professional Hunters Association 

Post Office Box 240971 

Anchorage, Alaska 99524 

P. 907.929.0619 

office@alaskaprohunter.org 

6 
160 

Alaska Trappers Association 

PO Box 82177 

Fairbanks, AK 99708 

Darla Ripchensky, PMP, Chief Clerk 

U.S. Senate Committee on Energy and Natural Resources 

304 Dirksen Senate Office Building 

Washington, DC 20510 

Dear Committee Members: 

12/15/15 

I am writing on behalf of our nearly 900 members. We are dedicated outdoor 

users who seek assistance in continuing to live the Alaskan way of life. 

When ANILCA was passed in 1980, it promised to protect the access and 

infrastructure which allows Alaska residents to hunt, fish and trap on lands 

throughout the State. 

One of the key requirements for remote trappers is shelter. In most cases, shelter 

takes the form of a small cabin and related out-buildings. A cabin can be crucial 

to the safety and success of a trapper. Winter temperatures can reach -60F, 

making shelter a matter of life and death. Many of our more dedicated trappers 

operate in remote areas; often more than 100 miles from any roads. They 

typically use aircraft to access their trapline. If these trappers don't have 

adequate on-site shelter, they must "commute" from a more developed area, 

which wastes valuable time that they could spend trapping. A cabin can be the 

key to a safe and successful season. 

Unfortunately, federal land management agencies (primarily the Bureau of Land 

Management) have not fulfilled the promises made in ANILCA. BLM policies and 

procedures have driven some long-term trappers out of their cabins and 

precluded new trappers from obtaining a permit. Two trappers near Bettles were 
161 

required to remove doors, windows and roofs from cabins due to their failure to 

meet an arbitrary income requirement, which even BLM admitted later was 

unnecessary. The cabins quickly deteriorated when exposed to the elements. 

More recently, a young trapper near Tok inquired about obtaining a cabin permit 

on land managed by BLM. He was met by stacks of paperwork, negative attitudes 

and unrealistic financial requirements (up to $10,000). With our encouragement, 

he forged ahead. After a full year of investigation and planning, he concluded 

that the process was too burdensome and abandoned his quest for a permit. This 

shouldn't be the manner in which a federal agency serves its constituency. 

By contrast, obtaining a permit to build a trapping cabin on State land is relatively 

easy. The process typically requires nothing more than one or two visits to the 

local office of the Department of Natural Resources and payment of a $100 

processing fee. 

We ask you to direct BLM to revise policies and procedures and bring them into 

alignment with the promise made to State residents under ANILCA. We are 

prepared to respond to any comments or questions. Thank you for your 

consideration of our request. 

Sincerely, 

Randall L Zarnke, president 
162 

December 16, 2015 

The Honorable Lisa Murkowski 

Chairman, Committee on Energy and Natural Resources 

U.S. Senate 

304 Dirksen Senate Building 

Washington, DC 20510 

RE: DECEMBER 3, 2015 HEARING ON "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" 

Dear Chairman Murkowski: 

On behalf of Arctic Slope Regional Corporation ("ASRC"), I am pleased to submit comments on 

the subject oft he Committee's December 3, 2015 hearing on the implementation of the Alaska 

National Interest Lands Conservation Act of 1980 ("ANILCA"). Our comments focus on Sturgeon 

v. Masica, a case pending before the U.S. Supreme Court. Unless the recent ruling by the Ninth 

Circuit Court of Appeals in Sturgeon 1 is overturned by the Supreme Court, the ruling has the 

potential to dramatically upset the balance of conservation, Alaska Native, and other interests 

that Congress struck in ANILCA. 

Through ANILCA, Congress Balanced the Conservation Interests of the Federal Government 

with the Economic Development and Subsistence Interests of Alaska Native Corporations 

ASRC is an Alaska Native Corporation, representing the liiupiat people ofthe North Slope region 

of Alaska. We were created at the direction of Congress under the terms of the Alaska Native 

Claims Settlement Act of 1971 ("ANCSA"). ANCSA was designed to settle the aboriginal claims 

of Alaska Natives and authorized the transfer of roughly 45 million acres of land to twelve 

for-profit regional corporations and more than two hundred village corporations in the state. 

The legislation extinguished Alaska Native aboriginal land rights, and authorized and directed us 

to adopt a western corporate model to manage Native lands and natural resources for the 

benefit of our shareholders. 

ASRC owns nearly 5 million acres of land on Alaska's North Slope. Our shareholders live 

primarily in eight extremely remote Arctic villages in one of the most isolated and challenging 

environments in the world. Through ANCSA, Congress authorized ASRC to use the North 

1 Sturgeon v. }vfasica. 768 F.3d 1066 (9th Cir. 2014). 
163 

ASRC Comments 

U.S. Senate Committee on Energy and Natural Resources 

12/3/15 ANJLCA Hearing 

Page 2 

Slope's natural resources to benefit the Jfiupiat people both financially and culturally. 

Consistent with this unique legislation, ASRC is a for-profit business committed both to 

providing sound returns to its shareholders and to preserving lfiupiat culture and traditions. 

Nearly ten years after passing ANCSA, Congress enacted ANILCA. The purpose of ANILCA was 

two-fold: to preserve the natural landscapes in Alaska and its wildlife, while also allowing rural 

residents to maintain their subsistence way of life. Congress was clear that ANILCA was not 

intended to impede upon Native Corporations' control of Native lands conveyed under ANCSA. 

Rather, Congress repeatedly emphasized in ANJLCA that regulation under that Act was to be 

limited to "public lands," which were by definition specifically limited to "Federal lands" in 

Alaska (specifically excluding certain State and Native Corporation lands). ANILCA established 

"units" which would be federally regulated as new or expanded national parks, preserves, 

monuments or wildlife refuges. At the time, Congress made clear that only the "public lands" 

within such boundaries would "be deemed to be included as a portion of such unit." 

Over 120 million of Alaska's federally owned acres are now protected within federal 

conservation system units ("CSUs"). ANILCA-created federal CSUs ultimately have engulfed 

over eighteen million acres of Native Corporation-owned land. Eleven of Alaska's twelve 

regional corporations and many of its over 200 village corporations own inholdings within 

ANJLCA CSUs, and many Native people live on these lands in rural villages. 

More than 380,000 acres of ASRC lands are "inholdings," situated within the Gates of the Arctic 

National Park, the Alaska Maritime National Wildlife Refuge, and the Arctic National Wildlife 

Refuge ("ANWR"), all federal CSUs created or expanded by ANJLCA. ASRC shareholders reside 

in two villages located on its in holdings within CSUs-Anaktuvuk Pass within Gates of the Arctic 

National Park and Kaktovik on the coastal plain within ANWR. These in holdings are necessary 

to ASRC's shareholders for subsistence use and economic development. The health of, and 

access to, caribou herds, fish, water fowl, Dall sheep, musk oxen, marine mammals, and other 

subsistence food populations are critically important to ASRC's shareholders. Many of the 

inholding acres also have high potential for oil and gas development, other mineral 

development, tourism, and other economic uses that could support our communities. 

Sturgeon v. Masica Threatens to Upset the Balance Established by Congress, Undermining 

Alaska Native Access To and Use of Lands Conveyed In Settlement of Aboriginal Land Claims 

In Sturgeon, the U.S. District Court for the District of Alaska and the Ninth Circuit Court of 

Appeals both incorrectly interpreted the plain language in section 103(c) of ANILCA to expand 

federal authority over non-federal inholdings, including millions of acres of lands owned by 

Native Corporations. The plain language of section 103(c), supported by the structure and 

context of ANILCA as a whole and the legislative history of that Act, unambiguously limits 

federal regulatory authority to "public lands." 
164 

ASRC Comments 

U.S. Senate Committee on Energy and Natural Resources 

12/3/15 ANILCA Hearing 

Page 3 

Federal regulatory authority over ANCSA lands is an issue of tremendous economic and social 

importance to Alaska Native Corporations. Given oil and natural gas development possibilities 

on some of the affected State- and Native-owned lands, the Sturgeon decision also has 

potential nationwide consequences. 

Under the Ninth Circuit's reading of ANILCA, forty percent of private ANCSA lands may now be 

subject to this vast federal regulatory scheme. Innumerable activities integral to economic and 

social life on inholdings can fall within the regulatory ambit of the federal government. The 

potential day-to-day consequences of applying the general National Park Service regulationswhich are specifically at issue in Sturgeon- to private inholdings are stunning. Buildings may 

not be constructed in national parks without advance approval from the federal government. 

Hunting and fishing on park lands are subject to extensive restrictions and permitting 

requirements. Even gathering berries requires written findings from a park superintendent. 

Modes of transportation critical in rural Alaska such as snowmobiles, ATVs, watercraft, and 

even bicycles, are all limited to locations approved by the Park Service. Aircraft-another 

critical aspect of access to rural Alaska communities-may be used only in designated locations 

and by permit. Commercial activities are circumscribed and regulated. Research may be 

conducted only by specific institutions and agencies and only under the regulatory watch of the 

Park Service. Public meetings, demonstrations and distribution of printed materials all require 

permits and federal government oversight. 

Through ANCSA, Congress specifically intended that Native Corporations would utilize ANCSA 

lands largely for economic development benefiting the Native people of Alaska. Through 

ANILCA, Congress made clear that the establishment of new conservation units would not 

impede Native Corporations' control of their own lands. ASRC seeks to pursue responsible 

economic development while maintaining our li'iupiat traditions. We are significantly 

challenged by the climate, by the cost of energy, by the lack of transportation infrastructure 

and distance to markets, and by the regulatory environment in which we work. In Sturgeon, 

the Ninth Circuit Court of Appeals has upended the balance established by Congress in ANCSA 

and ANILCA by allowing federal regulatory authority to be extended to millions of acres of 

Native Corporations' lands through the very statutory provision meant to limit that authority. 

We appreciate the attention this Committee is giving to the implementation of ANILCA and the 

enduring challenge we face as Alaska Native Corporations seeking to fulfill the promises 

Congress made in ANCSA, 44 years ago, and to maintain the balance Congress sought to 

establish in ANILCA, 35 years ago. We have highlighted the pending Sturgeon case in our 

comments due to the immediate and significant nature of the threat that the Sturgeon case 

represents for ASRC and other Native Corporations. We also look forward to working with you 

and with the Committee to identify and resolve other outstanding challenges associated with 

the implementation of ANCSA and ANILCA. 
165 

ASRC Comments 

U.S. Senate Committee on Energy and Natural Resources 

12/3/15 ANILCA Hearing 

Page 4 

Sincerely, 

ARCTIC SLOPE REGIONAL CORPORATION 

Rex A. Rock, Sr. 

President & CEO 

Cc: Senator Maria Cantwell, Ranking Member 

Senator Dan Sullivan 

Congressman Don Young 

Governor Bill Walker 
166 

ASSOCIATION "f 

!'ISH &wiLDl!H 

AGENCIES 

Han. Lisa Murkowski, Chair 

December 15, 2015 

Senate Committee on Energy and Natural Resources 

304 Dirksen Senate Office Building 

Washington, DC 20510 

Han. Maria Cantwell, Ranking Democrat 

Senate Committee on Energy and Natural Resources 

304 Dirksen Senate Office Building 

Washington, DC 20510 

Dear Chairwoman Murkowski and Ranking Democrat Cantwell: 

1100 Fx~t Stt~t, KE, Suite fl2S 

F:u: 20?.~350-9869 

Em.<tlt mfo@fuhwlldlik.o.tg 

I write on behalf of the Association of Fish and Wildlife Agencies (Association) to submit comments for 

the public record on the December 3, 2015 Committee ''Hearing to Receive Testimony on 

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". Founded in 1902, aliSO 

state fish and wildlife agencies are members of the Association. 

The Association is very concerned about the diminishment, by a soon to be published US Fish and 

Wildlife Service (USFWS} regulation regarding management of National Wildlife Refuges (NWR) in 

Alaska, of the Alaska Department of Fish and Game's management authority for fish and wildlife by 

federal actions that are contrary to the intent of ANILCA and the National Wildlife Refuge System 

Administration Act (NWRSAA), as amended by the National Wildlife Refuge System Improvement Act 

{NWRSIA). State fish and wildlife agencies are the principle front-line managers with authority to 

manage fish and wildlife within their borders, including on most federal lands. The Association 

acknowledges that ANILCA affirms that authority, which is also affirmed in the respective organic acts 

for the National Wildlife Refuge System, National Forests, and Bureau of Land Management lands. 

Finally, the Association is concerned that the USFWS by administrative fiat, or as a result of litigation, 

will apply this draft regulation to all NWRs in the country, with the resulting usurpation of all state fish 

and wildlife agency authority on all NWRs. 

When Congress passed ANILCA, it directed the Secretary of Agriculture and the Secretary of the Interior 

to manage natural resources to meet the needs of local communities that depend on these natural 

resources as well as "to provide for the maintenance of sound populations of and habitat for, wildlife 

species of inestimable value to the citizens of Alaska and the nation". In order to fulfil! this statutory 

mandate, Congress further obligated the federal agencies to "cooperate with adjacent landowners and 

land managers including Native Corporations, appropriate state and federal agencies, and other 

nations". The soon to be published USFWS regulation clearly contravenes Congress' intent in enacting 

ANILCA. 

WW\-v,ftshwildlife,org 
167 

The USFWS has developed a draft proposed regulations package which would have the effect of limiting 

hunting authorized under certain State of Alaska regulations on NWR lands. The package is currently 

under review by the Department of the Interior. Following that internal review the USFWS intends to 

release it for a public review and comment period. 

The USFWS Proposal 

The Association recognizes the preeminence of AN ILCA in directing federal land management in Alaska, 

but observes that except for conflicts with ANILCA, the NWRSAA as amended by the NWRSIA in 1997, 

provides comprehensive Congressional direction to the Secretary of the Interior for managing NWRs. 

We believe that there is little conflict between ANILCA and the NWRSAA, but Congress explicitly 

addressed that in the NWRSIA. 

Section 9 of NWRSIA as enacted explicitly states "If any conflict arises between any provision of this Act 

and any provision of the Alaska National interest Lands Conservation Act, then the provision in the 

Alaska National interest Lands Conservation Act shall prevail", providing primacy of ANILCA over 

NWRSIA. Sect 668(dd) (f) of the Act with respect to Refuge conservation planning, states "except with 

respect to refuge lands in Alaska (which shall be governed by the refuge planning provisions of the 

Alaska National interest Lands Conservation Act [ANILCAJ), the Secretary shall ... ". This language was 

specifically drafted in NWRSIA to ensure that with respect to conservation planning, ANILCA prevailed 

over NWRSIA on Alaska refuges. The Association believes that much of the NWRSAA applies to Alaska 

because it is not in conflict with ANILCA. 

The NWRSAA as amended by the NWRSIA at Sect 668(dd)(a)(4), assigns the Secretary 14 responsibilities 

in administering the System. At Sect.668(dd)(4)(B) the Act directs the USFWS to "ensure that the 

biological integrity, diversity and environmental health of the System are maintained for the benefit of 

present and future generations of Americans." The USFWS draft proposal would codify in regulation for 

Alaska NWRs, USFWS policy 601 FW 3 regarding Biological Integrity, Diversity, and Environmental Health 

(BIDEH) and make it the principle objective for Alaska refuges. The Association concerns are: 

a. There are 13 other statutory responsibilities given to the Secretary, and the Act does not 

prioritize those responsibilities but simply lists them. Likewise, House Committee Report 

105-106 (NWRSIA) does not assign a priority to these 14 responsibilities. The USFWS is 

assigning priority to this aspect of administering refuges over all other mandated 

responsibilities. 

b. The adoption of this one aspect of the Act as regulation clearly usurps and undermines 

the authority, responsibility, and objectives of the Alaska Department of Fish and Game 

regarding the conservation (including take) of fish and resident wildlife in Alaska under 

the sustained yield principle. This authority is grounded in Article VIII of the Alaska 

Constitution. 

c. Sect 668(dd)(m) states in part "Regulations permitting hunting or fishing of fish and 

resident wildlife within the System shall be, to the extent practicable, consistent with 

State fish and wildlife laws, regulations and management plans." The current proposal by 

the USFWS clearly is not consistent with this Congressional direction. 

2 
168 

d. While the proposal is currently intended to apply only to Alaska refuges, there is nothing 

preventing the USFWS from subsequently applying these regulations to all refuges in the 

System, resulting in usurpation and undermining of state fish and wildlife authority to 

manage fish and resident wildlife on all refuges in the System. 

e. The USFWS is directed at 43 CFR 24.4(e) to manage refuge units "to the extent practicable 

and compatible with the purposes for which they were established, in accordance with 

State laws and regulations, comprehensive plans for fish and wildlife developed by the 

states, and Regional Resource Plans developed by the Fish and Wildlife Service in 

cooperation with the States". Instituting a region-wide rule outside of the Comprehensive 

Conservation Planning (CCP) process for the individual refuge and in conflict with state 

wildlife management plans is contrary to this intent. 

The Association identifies five significant changes that would result from the proposed rule, as 

articulated below. 

The proposed rule would introduce undefined and subjective reasons for closing NWRs to 

hunting under state regulations, including "particularly efficient" methods and means of take 

and "conserving the natural diversity, biological integrity, and environmental health of the 

refuge," absent decision criteria to guide refuge managers or the public in its implementation. 

It would prohibit methods and means for the take of species under state management 

authority, seeking to "Prohibit the following particularly efficient methods and means for nonsubsistence take of predators", including prohibiting the use of bait for the harvest of brown 

bears. If the use of bait is "particularly efficient" for brown bears, what would prevent 

application of this criteria to other species (black bear) in Alaska or in the Lower 48 States 

where it is currently allowed under state authorization in some states. In many large states, 

baiting is necessary as a wildlife management tool to ensure the achievement of desired bear 

population numbers that remain within social tolerance for bears. 

The USFWS intends to "manage populations for natural densities and levels of variation 

throughout the Refuge System", and that "These proposed regulatory changes are aimed at 

ensuring that natural ecological processes and functions are maintained and wildlife 

populations and habitats are conserved and managed to function in their natural diversity on 

Alaska refuges." This intent lacks criteria for implementation or consistency with state fish and 

wildlife agency planning and could easily be applied to all NWRs in the system. 

Proposed changes to the USFWS closure process includes an allowance that would essentially 

permit "temporary regulations" to extend indefinitely, avoiding both the full regulatory process 

and the CCP process allowing for public comment. 

The Association is concerned that movement of the BIDEH policy into regulation will diminish the ability 

of the states to manage fish and wildlife on NWRs. While the current proposed rule only targets Alaska 

and the management of predators, there is the distinct potential that it would be applied to the NWRS 

nationally by administrative fiat or as a result of litigation, and that other refuges would be required to 

passively manage for the extreme end of BIDEH for all species (predators and prey). For example, a 

state may manage ungulate populations for bull:cow ratios of 30:100, which allows for sustainable 

harvest opportunities and subsistence use. This is not a "natural population," but a reasonable objective 

for state management goals under sustained yield management. 

3 
169 

The USFWS has not differentiated the need to manage Alaska refuges at the extreme end of the BIDEH 

spectrum, other than to mention the ANILCA purpose of "natural diversity," which is not equivalent to 

BIDEH. Therefore, application of this policy could conceivably extend to other refuges as well, 

superseding refuge purposes and influencing management of areas such as Waterfowl Production Areas 

by requiring that the USFWS to apply "natural ecological processes," significantly limiting opportunities 

for compatible wildlife-dependent public uses. The regulations proposed by the USFWS do not address 

any conservation concerns for any species and appear to be derived by concerns regarding ethical 

behavior as determined by USFWS staff. 

Links to the USFWS generated documents to this proposal are below: 

http:/fwww.fws.gov/alaska/nwr/ak nwr pr.htm 

http :1/www .fws. gov I a las ka/ nw r /pdf IN WRS-Statewide-Regs-Pro posa 1-F AQ-06-23-15. pdf 

The Association sincerely appreciates the opportunity to submit testimony for the record. 

Sincerely, 

Jennifer Mock Schaeffer 

Government Affairs Director 

4 
170 

Honorable Lisa Murkowski 

United States Senate 

Washington, DC 20510 

Borell Consulting Services LLC 

6420 Rockridge Drive 

Anchorage, AK 99516 

907-230-7580 

Re: Changes Needed In ANILCA 

Dear Senator Murkowski, 

December 16,2015 

Thank you (or considering the need for changes to the Alaska National Lands Conservation Act 

of 1980. I have seen the testimony of Mr. J.P. Tangen and fully support those changes but there 

is at least one very serious issue that he did not address. 

That issue is the abuse of the "No More" clause/intent of ANILCA regarding intetnational 

designations of Alaska lands and \Vaters. My concern is regarding V.'orld Heritage Sites, 

Biosphere Reserves, RAMSUR sites, international parks, and any other such designation. These 

are all administrative designations and do not require the approval of the Congress or the state. 

The National Pilrk Service, with help and collusion from ENGOs, bas been pushing for 

international park, World Heritage and Biosphere Reserve designations in Alaska for most of the 

past 35 years. Each time they are challenged that this would violate the promises of ANILCA, 

the response is that "no new lands would be added" and that only existing conservation system 

units (CSUs) would be included. 

Then Secretary Hillary Clinton and her Russian counterpart had reached an agreement tor an 

international park in Western Alaska and Eastem Russia but it was canceled after Russia 

attacked Ukraine. Th.e Alaska Legislature passed a Resolution in 2014 that no such 

international designations be allowed unless supported but an act in the State and the 

U.S. Congress. Obviously, Secretary Clinton did not consider either t.he "No More" clause of 

ANILCA or the Alaska Legislature. 

ANILCA needs to be changed to make it clear that international designations, which arc 

administrative designations, and every other type of administrative overlay of CSUs or other 

lands are not allowed in Alaska, 

Steven C. Borell, P.E. 

Principal 
171 

Testimony before the US Senate 

Committee on Energy and Natural Resources 

The Alaska National Interest Lands Conservation Act 

December 3, 2015 

Submitted December 15, 2015 

Testimony on behalf of: 

Citizens Alliance Protecting School Lands (CAPSL) 

A 501(c)3 non-profit advocacy group working to restore the historic 

1915 Congressional commitment (Exhibit A) to reserve Sections 16 

and 36 in every township in Alaska for financial support of Alaska 

public schools. 

Submitted by: Allen McCarty, President 

For further information: 

CAPSL c(o Allen McCarty, PO Box 322, Seward, AK 99664 

Akcapsll3@gmail 
172 

Honorable Chair Senator Murkowski and Committee Members, 

Thank you for this opportunity to submit written testimony on the impact of ANILCA on 

Alaska over the past 35 years. This testimony will focus on the direct impact of ANILCA on 

Alaska public school children. 

35 years ago, Congress and President Carter negatively impacted the birthright of Alaska 

public school children when a relatively short paragraph containing two sentences was 

included as Sec 906(b) in the Alaska National Interest Lands Conservation Act (Exhibit A). 

Most Alaskans probably didn't even know about this ANILCA provision let alone it's true 

impact on Alaska public school children. Most Alaskans are unaware there is an Alaska 

public school fund or that there was ever a public school land trust. 

The birthright taken from Alaska public school children was created by one of the oldest 

legal relationships dating back to Roman times, a trust. Trusts provide for a special 

relationship between the trustee (Congress and the President) and the beneficiaries 

(Alaska public school children). This particular trust may not be sacred. However, the 

trustee's duties are required to remain focused on the trust beneficiaries. Congress and the 

President, as trustees, were duty bound to manage the trust for the maximum benefit of 

Alaska public school children. 

This trust, the birthright of all Alaska public school children and created by Chap 181- An 

Act To reserve lands to the Territory of Alaska for educational uses and other purposes 

(Exhibit B), was enacted in March 4, 1915 by Congress and signed by President Wilson. In 

the 1915 Act the federal government pledged to: 

1. Hold in trust every unencumbered, federally-owned Section 16 and 36 statewide 

for the benefit of Alaska public school children; 

2. Reserve Sections 16 and 36 in almost every township in Federal ownership, when 

surveyed, from sale or settlement for the benefit of Alaska public schools; 

3. Allow the option, if homestead entry was made upon any part of the sections 

reserved before the federal government could complete a survey in the field, to 

designate or reserve other lands in lieu thereof; 

4. Provide for additional in lieu oflands if any of these sections were sold or otherwise 

appropriated by or under the authority of any Act of Congress, or are wanting or 

fractional in quantity; 

5. Give the Territory the ability to lease these lands not to exceed one section to any 

one person, association, or corporation for not longer than ten years at any one 

time; 

6. Retain any revenue generated "when surveyed", including from mineral rights, in a 

public school permanent fund with fund earnings used to support public schools 

The 1915 Act also provided for a Territorial land-grant, agricultural college and school of 

mines with its own significantly smaller land trust and permanent fund consisting of 

Sections 33 in the Tanana Valley plus four sections reserved and dedicated as the campus. 

For further information: 

CAPSL cjo Allen McCarty, PO Box 322, Seward, AK 99664 

Akcapsll3@gmail 
173 

When the 1915 Act was enacted, there were very few federal reservations in Alaska. CAPSL 

has been able to confirm Chugach National Forest and one small national park in Southeast 

Alaska predated the act.lt is our understanding Alaska now has more acreage in federal 

reservations than any other state. ANILCA provided for the creation or expansion of nearly 

20 Conservation System Units in Alaska without compensation or provision of in lieu of 

lands for Alaska public school children whose school sections were encumbered. 

The 1915 Act predates the July 10, 1915 Land Auction (aka The Great Anchorage Lot Sale) 

when Alaska's largest city went on the auction block with newly platted lots available for 

settlement. The Municipality of Anchorage and the 1915 Act are both celebrating their 

centennial year. 

The trust covenant was transferred to the state of Alaska at statehood. Pre-statehood 

continuing through the land selection process of statehood until ANILCA, the vastness of 

Alaska and the extensive time and commitment required of the federal government to 

survey the reserved sections and provide in lieu of lands for federal reservations worked to 

deprive Alaska public school children of the full benefit of the 1915 Act. Only a minimal 

number of these sections were transferred to the state to work for Alaska public school 

children. 

Alaska, with the largest land mass (over 365,000,000 acres consisting of about 18,000 

townships) and tidelands in the nation and a large federal foot print, should have the 

largest acreage nationwide retained in its public school land trust. Additionally, the oil 

removed on federal and state lands should have grown the public school permanent fund 

to surpass those in most if not all states. ANILCA contributed greatly to stunt the Alaska 

trust. 

Congress and President Carter violated the Equal Footing Doctrine when potential trust 

lands reconfirmed at statehood for the benefit of Alaska public school children were 

relinquished and so grossly diminished with enactment of that single paragraph in ANILCA. 

A trust that once had the potential to reserve over 20 million acres, many yet to be 

surveyed, and their vast resources, was repealed with ANILCA and settled with a final grant 

of merely 75,000 acres. This new land is reportedly in lieu of land Alaska was entitled to at 

statehood. Four tracts totaling 74,930 acres and reportedly chosen for their potential coal 

resource had been selected by 1992. The State of Alaska, duringANILCA negotiations, also 

violated their trustee obligations relinquishing most of the lands promised reportedly to 

expedite statehood land transfers. 

Additionally, Congress and President Eisenhower approved a smaller yet significant breach 

of the public school land trust and the Equal Footing Doctrine with Public Law 190 Chapter 

323 on August 5,1953 (Exhibit C). This act amended the 1915 Act to require that receipts 

from oil, gas, oil shale, phosphate, sodium, and potassium be split from that point with 90% 

to the Alaska public school permanent fund and 10% to the federal treasury instead of 

wholly to benefitting the trust. The act also provided for the transfer of these mineral 

leases to any future State erected out of the Territory of Alaska. 

For further information: 

CAPSL cfo Allen McCarty, PO Box 322, Seward, AK 99664 

Akcapsll3@gmail 
174 

CAPSL is an invited participant in the activities of the Children's Land Alliance Supporting 

Schools (CLASS), a non-profit 501 (c) 3 corporation, organized under the laws of the State 

of Utah in 2000. It is funded by grants from the United States Department of Education and 

donations from corporations and individuals. The CLASS vision is "Productive school trusts 

providing for world-class schools." CAPSL wants no less for Alaska public school children 

now and in the future. 

CLASS reports on their website www.childrenslandalliance.com that the Alaska public 

school land trust was granted 105,000 acres at statehood. With the nearly 7 5,000 acres 

granted under ANILCA. Alaska school children are the blameless beneficiaries of one of the 

three smallest public school land trusts reported by states that are members of CLASS. The 

graph below provided by CLASS on their website clearly illustrates the inequity thrust 

upon Alaska public school children by ANILCA. 

e " .Sl 

!'!! 

:;; 

State Surface & Mineral Acres 

'' Sorfa~e Acres 

IIIli Mineral Acres 

The relative position of the Alaska Public School Land Trust to those of fellow states 

improves a little when looking at the size of our Alaska School Fund. The fund receives .5% 

of revenue from all state lands which is still greatly below the revenue one would expect to 

be generated from 1/18tl1 of land in federal ownership in 1915. The following graph is also 

from the CLASS website and reflects 2010 values. In the point of time captured, only five 

states have smaller permanent school funds than Alaska. 

For further information: 

CAPSL cfo Allen McCarty, PO Box 322, Seward, AK 99664 

Akcapsll3@gmail 
175 

FY 2010 PERMANENT SCHOOL FUNDS MARKET VALUE AND COST (BOOK VALUE) 

1,S01,880,000 

1,601,880,000 

1,401,880,000 

1,201,880,000 

1,001,880,000 

S01,880,DOO 

601,880,000 

37 401,880,000 

201,880,000 

1,880,000 

NM$8,841;,410,173 1'J( $26,201,388,2 

HMARKET 

VAlUE 

•cosr 

More recent financial information reflecting only the Alaska Public School Fund can be 

found on the CLASS Alaska state page including the following two graphs. 

For further information: 

CAPSL cjo Allen McCarty, PO Box 322, Seward, AK 99664 

Akcapsll3(il')gmail 
176 

The CLASS Alaska Report notes "The balance for FY 2013 was $510 millionl. Rents and 

royalties from the land totaled $13.9 million; investment income totaled $38.1 million; and 

the total return for the fiscal year was 8.19%, one of the lower returns of the twenty states 

with school funds. Only $9 million was paid directly to the schools via the state aid 

foundation program, though $10,328,000 was committed." 

It is the opinion of CAPSL and others, that Alaska public school children were not 

represented during statehood, when their resource revenues were reduced in 1953 and 

duringANILCA negotiations. CAPSL (The Childrens Alliance Protecting School Lands) has 

filed a lawsuit on behalf of the children in the State of Alaska Superior Court seeking 

reconstitution of the original promise. This case is scheduled to go to trial in juneau in the 

spring of 2016. 

The Litigation: 

Citizens Alliance Protecting School Lands vs State of Alaska, Case No 1}U-00582Cl.filed in the 

Superior Court ofjuneau, Apri/2013. This complaint for Declaratory Relief would correct 

trust violations, obtain new lands lost at statehood and AN/LCA, as well as establishing a new 

management scheme for the land and the fund. The management proposed would be similar 

to the Alaska Mental Health Authority. 

The Alaska Public School Land Trust was entwined in an earlier case, Kasayulie v State of 

Alaska, involving rural school construction funding. The 2011 consent decree and 

settlement agreement of this historic school funding case provided that the plaintiffs 

dismiss all claims related to public school land trust issues. However prior to settlement, 

Alaska Superior Courtjudge john Reese stated in September 1999: 

"The Court holds that the State has breached its duties as a trustee of the public school lands. 

The purpose of the trust was to create a permanent source of revenue for the exclusive benefit 

of state schools." 

This brings us back to ANILCA 35tl1 Anniversary and why this testimony is being provided 

to this particular committee. 

CLASS answers the basic question 'What are school trust lands?" very simply on their 

website. 

"When states were created, Congress granted them school trust lands. The money the states 

earned from these lands was to be put in trust funds so future as well, as current generations, 

would have money for education." 

1 All data in the preceding two graphs and descriptive paragraph taken from State of Alaska CAFR 

FY 2013 report Statements 3.11, 3.12, and 3.23 with assistance from University of Fairbanks retired 

Professor E. Dean Coon. 

For further information: 

CAPSL cjo Allen McCarty, PO Box 322, Seward, AK 99664 

Akcapsll3@gmail 
177 

Some members of CAPSL have been working to reconstitute the Alaska Public School Land 

Trust and Fund for over ten years when Alaska PTA first learned of the 1915 Act and land 

trusts from CLASS. Alaska public school children need the help of our Senior Senator and 

your Committee Chair Lisa Murkowski, your committee and Congress. The trust breach is 

obvious. That Alaska public school children have not received the commitment made by 

Congress to the Territory and later to the State of Alaska and comparable to all other states 

upon admission to the Union is equally apparent. 

We are requesting the federal government uphold their trustee responsibilities under the 

1915 Act and develop a long-term plan to fulfill the land reservations granted to Alaska 

public school children. 

Thank you for recognizing 35 years of ANILCA by reaching out to Alaskans and publicly 

reviewing and discussing the pros and cons of this impactfullegislation. It was during 

ANILCA negotiations that the original promise to Alaska public school children and the 

potential of this trust was set aside to expedite statehood land selections and simplify 

ANILCA negotiations. 

As additional information we've included the Alaska Public School Trust Lands & Fund FY 

2014 CLASS report and the research paper State of Alaska Land Trust and History and 

Status of Alaska's Public School Trust Land authored by University of Fairbanks retired 

Professor Dr. E. Dean Coon. Pages 35-45 in Dr Coon's report are most relevant to ANILCA. 

Please let us know if we can be of any assistance in your efforts and if further opportunities 

arise for us to participate. 

For further information: 

CAPSL cfo Allen McCarty, PO Box 322, Seward, AK 99664 

Akcapsll3@gmail 
178 

• • • • • • • • • 

History and Status 

of 

• 

Alaska's Public School Trust Land 

• • • • • • • • • • 

A Research Paper 

Third in a Series - Previous Papers: 

The Alaska Public School Fund, A Pet7J2anent Fund for Education, 1984 

A PromZ:re to Keep: The Alaska Public J dwol Trust Fund, 

A Hz~rtory of the Fund 1985-2004, 2005 

by 

E. Dean Coon, Ed.D. 

Assoc. Prof. of Education (Ret.) 

University of Alaska Fairbanks 

March 2009 
179 

Author's Notes 

Agencies whose on-line property records management systems were accessed 

in preparing this paper included the Alaska Department of Natural 

Resources, Municipality of Anchorage, Kenai Peninsula Borough, 

Matanuska-Susitna Borough, Fairbanks North Star Borough, and the Bureau 

of Lane\ J'vlanagement. DNR records were most used, since it has the most 

detailed historical information on public school trust land. Financial 

information came from the Departn1ents of Revenue and Administration, 

and the Legislative Finance Division. Kamyulie I' State ofAlaJ'ka documents 

were the primary information source for the litigation history. Other 

references came from my personal files as a result of monitoring the state's 

management of the school land and school trust for the past 25 years. 

Several individuals who provided information deserve mention and thanks. 

They include Kathleen Sheehan-Dugan and Chester Murphy in the 

Department of Natural Resources, Karlee Gaskill and Lynn Van Horn in the 

Municipality of Anchorage Heritage Lane\ Bank, Shane Horan, Kenai 

Peninsula Borough Assessor, and Tara Jeans in the Department of 

i~dministration. 

Every effort has been made to present accurate and data. Ifther~ have 

to achietJe this, the responsibility is mim. 

Persons interested in more information on the trust land and the trust fund 

are referred to two previous papers listed in Section One of this paper. 

Another valuable source is a web site est-tblished and maintained by the 

Alaska Parent and Teacher i\ssociation: wYvw.alaskaschoolhndtrust.com. See 

also a Partial List of Information Resources in the Appendix. 

Comments or questions? Let me know. 

E. Dean Coon, 11835 Spyglass Circle, Anchorage, AK 99515 

Or email at dean.ak@gci.net 

2 
180 

TABLE OF CONTENTS 

Section 

1. Purpose of the Paper 

A Short History of ldaska's School Trust Land 

2. Alaska's Public School Trust Land, 1959-2009 

Five Area Maps 

Fairbanks • Glennallen • Wasilla/Palmer 

Kenai Peninsula • Southeast 

3. Additional Grant Land Patented 

Maps of Six Tracts 

4. A New School Trust Land Grant 

Maps of Four Tracts 

5. 'The Future 

6. Appendix 

Resolution of Alaska Parent Teachers Association 

Resolution of Alaska Association of School Boards 

Partial List of Information Resources 

Page 

4 

20 

35 

46 

49 
181 

Section One 

Purpose of the Paper 

This paper presents a brief history of ~Alaska's public school trust lands 

including the current status of these lands. Maps are included showing the first 

land grant of 1959, added lands claimed in the 1980's, and a new grant of 

75,000 acres made by Alaska National Interest Land Claims Act (ANILCA). 

The final section presents options for the future and resolutions of groups 

interested in strengthening the trust and the fund for the benefit of Alaska's 

public school children. 

This paper is intended to be of value to those persons and agencies interested 

in the public school trust land, in its management, and in the future and 

potential of this land to provide financial support to the public schools. 

4 

This paper docs not review the Alaska Public School Trust Pund, although it is 

an equally important half of the school trust. Descriptions and status of this 

Fund will be found in these two papers: 

The Alaska Public School hmd: A Permane11t Education. A research paper 

by E. Dean Coon, University of Alaska fairbanks, March 1984, 40 pp. 

A Promire to Keep: The Ala.rka Public Jchoo! Tm.rt Fund: A HiJfOIJ of the Ftmd 

1985-2004, research paper by E. Dean Coon, Anchorage, Alaska, May 2005, 

55 PP· 

A Short History of Alaska's School Trust Land 

First Federal Grant of Public School Trust Land 

At Statehood in 1959 Alaska received a federal grant of 104,000 acres of public 

school trust land. The land was scattered across the state in township sections 

16 and 36 which had been surveyed. The income from this land was put in a 

public school permanent fund. Fund investment earnings were spent on 

support of public schools. This arrangement- land receipts to the fund, 

investment earnings to the public schools was a trust to be continued in 

perpetuity. 
182 

5 

Legislature Converts School Trust Land to General Grant Land 

In 1978 the school trust land was redesignated and put into the pool of general 

grant lands by the legislature. There was no school trust land anymore. No 

longer would receipts from the school land be credited to the Public School 

Permanent Pund, which was renamed the Public School Trust Pund. To make 

up for the income loss to the Fund, the legislature specified an alternative 

source of income: one-half of one percent of the receipts of all general grant 

lands. The Fund also receives similar percentages of receipts from fines and 

forfeitures associated with these lands, as well as from the National Petroleum 

Reserve Special Revenue Fund. 

Additional School Grant Land Patented 

In the 1980's, the Department of Natural Resources found 2,850.18 acres of 

school lands which had not been conveyed to "\Iaska at Statehood due to prestatehood federal withdrawals that had subsequently been removed. This land 

was tl1en patented to the state between 1985 and 1992. 

New School Trust Land Grant is Made 

In 1980 the "\Iaska National Interest Lands Conservation Act (ANTLCA) 

specified that the State was to receive an additional 75,000 acres of school land. 

This new land grant was in lieu of the land that Alaska was entitled to at 

Statehood but had been unable to select and patent. This land did not have to 

be in sections 16 or 36 and by 1992 four tracts of new school land totaling 

74,930 acres had been selected. 

Court Finds the State Breached the School Trust 

Litigation (Kasqyu!ie l'S. State of AlaJka; Case No. 3AN-97-3782 Civ) initiated in 

1997 charged that the State of Alaska breached the school land trust by (1) 

redesignating the school lands as general grant lands and (2) failing to properly 

use and account for school trust funds. In 1999, the court agreed and stated 

that redesignation of public school lands into general grant lands is not 

pennitted, and that a further breach of the state's obligation was that there was 

no valuation of the land prior to the action. The court called for an appraisal 

of the land, noting that without such a valuation it is premature to consider 

remedies. Nine years later this case is in hiatus as there has been no appraisal; 

the State and the plaintiffs have stopped discussions on how to conduct it. 
183 

Section T \VO 

Alaska Public School Trust Land, 1959-2009 

Federal Lands Reserved for Public School Support 

An Act of Congress of March 4, 1915 reserved sections 16 and 36 in each 

surveyed township in Alaska from sale or settlement, and directed that the 

income from these reserved lands be put into a School Permanent Fund in the 

Territorial Treasury. The Act further specified that the investment income of 

the School Permanent Fund be used only for the benefit of the public schools. 

The Act stated, in part: 

... when the public lands are surveyed ... sections numbered sixteen and thirtysix in each township ... (arc) ... reserved from sale or settlement for the support 

of common schools in the Territory of Alaska ... (and) ... the entire proceeds or 

income derived by the United States from such sections ... and the minerals 

therein ... are hereby appropriated and set apart as separate and permanent funds 

in the Territorial treasury, to be invested and the income from which shall be 

expended only for the exclusive use and benefit of the public schools of "'\Iaska .. 

The land consisted of part or all of eligible acreages in Sections 16 and 36. 

rigure 1 below shows the size and layout of townships and sections. 

Townships are 6 miles tall and 6 miles wide and are divided into 36 

sections. Each section is one mile tall and one mile wide. The sections 

are numbered starting in the northeast corner and ending in the southeast 

corner. Each section contains 640 acres. 

6 
184 

Even as additional land was surveyed the Public School Permanent Pund grew 

slowly. In 1958 the Fund's balance was $161,700. School land acreage \Vas 

estimated at 105,000 acres. 

Alaska Gets a School Land Grant at Statehood 

7 

Changes were in store at Statehood. The Alaska Statehood Act, enacted July 7, 

19 58, stipulated that: 

Grants previously made to the Territory of Alaska arc hereby cont!rmed and 

transferred to the State of AJaska upon its admission. Effective upon the 

admission of the State of }\Iaska into the Union, Section 1 of the Act of March 4, 

1915 (38 Stat. 1274; 48 U.S.C., sec. 353), as amended ... (is) repealed and all lands 

herein reserved under provisions of Section 1 as of the date of this act, shall upon 

admission of said state into the Union be granted to such state for the purposes 

for which they were reserved (emphasis added). 

On January 5, 1959, the federal school lands became state school lands. The 

lands and the fund were to be managed and used according to the original 

provisions of the 1915 legislation. This was the stipulation accepted by Alaska 

at Statehood. 

In the first year of statehood, the legislature specified that state lands, including 

school lands, would be managed by the Division of Lands in the Department 

of Natural Resources (DNR). lts first big task would be to obtain Federal 

patents from the Bureau of Land Management for all the school land that had 

been surveyed. A patent is the instrument by '''hich the United States 

Government conveys, or grants, the fee-simple title to public land to another. 

Most of the Federal patents for Alaska's school land were issued by 1961. 

The Case File System 

Management of school trust lands by DNR begins by assigning a Case Pile 

Number to each township. The Case File Number would be the identifier for 

all school lands within each township. Por example: Sch 13. School land 

within a township usually includes a section 16 and a section 36, but it can be 

just a 16 or 36, or portions of both or either. It all depends upon what's 

available after prior claims are recognized and other factors. 
185 

8 

As before, receipts from school land income were credited to the Public School 

Permanent Fund. The Fund's investment earnings were then posted to the 

state's General Fund. The contention was that since the investment earnings 

were less than the General Fund appropriation for support of schools then the 

intent of the law was met. The School Permanent fiund grew more rapidly 

during the next 20 years, and by 1978 showed a balance of $8.5 million. 

Investment income in fiY '78 exceeded $560,000. 

Inventory of Patented School Trust Acres 

Table 1 below shmvs (1) the number of sections 16 and 36 at Statehood, (2) the 

number of those sections from which acreages could be selected, and (3) the 

number of acres ultimately patented prior to June 30, 1978. Table 1 does not 

show land obtained and then disposed of through sale or trade or lost for other 

reasons prior to 1978. 

Meridian 

Seward 

Pair banks 

Copper River 

Totals 

Table 1 

Alaska School Land Grant Status 

June 30, 1978 

Surveyed 

Sections 

16 & 36 

287 

113 

108 

508 

Sections 

Open for 

Selection 

105 

69 

22 

196 

Sources: (1) School Grant Audit, DNR, 11/17/98 

Acres 

Patented 

52,714 

39,045 

9,861 

101,620 

(2) Acres of Land in School Tmst :\ppraisal Project, DNR,Jan. 12, 1999 

Sections open for selection are fewer than total sections because of federal 

withdrm.vals for a variety of reasons. For example, a substantial portion of the 

land in the Copper River Meridian was not available as it was in the Tongass 

National fiorest, which was established in 1907. No school land was patented 

in the Umiat and Kateel River Meridians. Federal homestead lands were not 

eligible for designation at school land. 

It is interesting to contemplate a "What if?" at thzj·point. Tf7bat ifAlaska had receiz,ed as 

school/and the entire acreages of sections 16 and 36, which was the intent of the 1915 

Federallmv( The computation: 508 sectiom tzines 6!-0 acrr:sper .reition equaLr 325,120 

acres. J\1ore than three times as much school graflt land would !Jaz;e been obtained! 
186 

School Land Management Problems 

During the early 1970's legislative audits revealed illegally executed school land 

leases and that some land rental income was not credited to the Fund. Over $2 

million was credited to the l'und in settlement of two of the cases. As a result 

of these happenings, the State Board of Education was named trustee of the 

school lands and '.Vas charged with approving every land transaction. 

Because of these problems, and because of public and legislative pressure to 

make more state land available for sale to the public and for use by state and 

local agencies, major changes in the management of the lands and the fund 

were made by tl1e Legislature in 1978. 

The Legislature Takes the School Land 

The legislature redesignated the school trust lands, some 103,000 acres (2,300 

acres had been sold) as general grant lands (FCCS, CSSB 159, Sec. 4, Chapter 

182, SLA, 1978). Thus the state school land "disappeared" into the pool of 

state grant lands; there was no legal challenge to this action. 

To replace the lost school land receipts, the School Permanent l'und, now 

renamed the Public School Fund, was to be credited with one-half of one 

percent of total receipts from the management of all state grant lands. These 

lands, some 103 million acres, were granted by the Alaska Statehood Act. 

Selection of this vast acreage is still underway. 

The new Public School Pund also would receive its percent of land fines and 

forfeitures as well as its percent of the National Petroleum Reserve special 

revenue fw1d. The Pund would be managed by the Department of Revenue 

with advice from a Public School Fund Advisory Board. 

At the same time, the legislature sought to convert Mental Health Lands and 

University of Alaska lands to become general grant lands. l'vkntal Health 

advocates fought this action in the courts and retained control of their land. 

The University of Alaska opted out of this land conversion. If anyone in the 

education community, including the State Department of Education, stood up 

for retaining the school trust land as school trust land they were unsuccessful. 

New School Land Obtained 

Despite losing the original school land, new school trust land would be 

obtained in two ways. The first would be to recover a small amount of land 

9 
187 

10 

the State was eligible for in 1959 but which could not be selected due to various 

withdrawals by the Federal government. The second way is from a ne'.v land 

grant authorized by the Alaska National Interest Land Conservation Act. This 

1980 Federal law granted Alaska 75,000 additional acres of land for public 

school support. Descriptions and maps of the recovered land are presented in 

Section ll1ree. The ANILCA grant, with maps, is described in Section Four. 

State is Sued for Conversion of School Land 

In 1998 the State of Alaska \vas charged '.vith breaching the school land trust 

by redesignating the school lands as general grant lands and that it had failed to 

properly use and account for school trust funds. These allegations were added 

to KaJ~~:yu!ie z·~ State of A!aJka, Case No. 3 AN-97-3 782 CIV, filed in 1997, \vhich 

charged that the state \vas failing to provide adequate educational facilities, 

especially in the rural areas. 

Plaintiffs in this action included three sets of parents, six school districts, and 

an advocacy group named Citizens for the 1\ducational Advancement of 

Alaska's Children. They \Vere represented by t\vo law firms, Jermain Dunnagan 

& 0\ven, and Middleton & Timme, P.C. 

Soon after the school trust issue was added to the KaJa)'U!ie litigation, the 

Department of Natural Resources established new management criteria for the 

former school lands held \Vith other general grant lands. Pending and future 

actions which would dispose of school land or resources must meet criteria in 

DNR Department Order 143, dated December 21, 1998, which stated, in part: 

1. The action approved must be for full, Fair Market Value at the 

highest and best use of the parcel, or 

2. The action must be a result of an existing contractual obligation 

(i.e., land sale contract, reappraisal of an existing lease, or a 

land settlement within a municipality) 

This Order further required the DNR Commissioner to be notified of any 

pending action not meeting these criteria; the Commissioner will determine if 

the action may proceed. lt also noted that conveyances to boroughs and 

municipalities do not meet the criteria. This last condition effectively 

prevented continuing municipal entitlements of former school land during the 

life of the litigation. 

At the same time a notice of litigation was added to all school land case files 

and maps in the DNR land information system. The Attorney General also 

established an escrow account for the receipts from 21 school land sales 

underway. The FY '08 balance of this account, Fund 11162, was $3,414,737. 
188 

11 

Judge Reese Finds the State Breached the Trust 

On September 1, 1999, Superior Court Judge John Reese found in favor of the 

plaintiffs: (1) failure by the state to provide adequate educational facilities, and 

(2) that the state had breached its duties as a trustee of the public school lands. 

Judge Reese noted that redesignation of public school lands into general grant 

lands is not permitted, and that a further breach of the state's trust obligation 

was that there was no valuation of the land prior to that action. He called for 

the lands to be appraised, noting that without such a valuation it is premature 

to consider remedies. 

Judge Reese's Rulings 

Judge Reese's rulings were contained in an 18-page Order Regarding Motions 

for Partial Summary Judgment on Breach of Trust Issues. Sit,>nificant content 

regarding the school trust and school land follow: 

The court holds that the State has breached its duties as a trustee of the 

public school lands. The purpose of the trust was to create a permanent 

source of revenue for the exclusive bendit of State schools. 

Redesignation of the school lands into general grant land is not permitted. 

There was no valuation of the land before the State redesignated it in 1978. 

That was a breach of the State's trust obligations. 

ThmfolloJIJed a dim1Hio11 a.r to JPhether the Jtate paidjair market land at 

The plai;tti(Jf coNtended there haJ bem 110 detemiirzatiott, or indication in 

the Jta!JtteJ, that the 1 I 2% paid jivm Jlate hndJ that the Jlate did 

110t commit !v set time orjor any amount, ami that the 1 I 2% iJ 

m· it could be at any time. The State contended that the 1 I 2% 

fivm management oj'state land iJ compenJatiofl for up to ralue. 

The court finds that it is impossible to know if the fair market value has been 

paid (through the contribution of 112% from state land revenues to the 

school trust fund) without an appraisal. The lands must be appraised or 

otherwise valued before any acts subsequent to the redesignation will be 

judged. 

the ANILCA 906(b) lands. TbiJ is a 

lieu nwer m:eil;ed under the 

Jelected itt/992, 

JFas made. contend the Jcbool trust jimd .fhoul(get 100 1'Jerte71! 

~y tbi.f land thro11gh leases, etc. The State SrJ}'J' it bas set 11p a 

separate agmcy e.lpecia!{y for the ANILCA la11d tBl'C/1/IeJ. 
189 

The court holds that it is not clear from the record that adequate separation 

and accounting has occurred (with respect to the ANJLCA land). An 

appraisal must take place before the court will be prepared to rule on this 

ISSUe. 

The court tinds that aside from breaches of trust duties, appraisal of the res 

of the trust is an appropriate trust expenditure. 'lhc tund should bear the 

appraisal expense ultimately. However, the State should front it as the land 

cannot be properly det!ned until the appraisal and remedies are 

accomplished. 

dimwion 011 that State e:xr,emuut'IY!S o1z ed11cation Jet off, or 

mmpensatedfor; the interr.r! on the 1111paid bala11ce due thefimd. Plaintifjj' contend the 

S!atefailed to accozmtfor orpay intere.rt or 011 the balance due the 

schooL· after the 1978 The State aJJerts that 

intereJt on the iJ set rff !~y the 

yem; and that the appraiml the ilztemt <:till be determi md. 

The court holds that an amount equal to what properly enumerated, valued, 

and managed trust assets would have produced could be set off. 

The court holds that the State has not commingled the trust assets by 

depositing the funds into the general fund. "The asset<; are deposited into the 

general fund late in the tis cal year for an appropriation from the legislature to 

the Department of Education. 

tntst: The plaintijjj' contmd 

The State contend!" it adequate 

(The court says) Therefore, resolution of this issue, if needed, will occur at a 

later date. 

(/.f:"-'ith of the 11.re of tmrtfimdJ ~y the Depmtme~~t of Remme) The court finds 

that reasonable fees for the management of the fund are appropriate. "This 

policy encourages the trustees to continue to administer the fund e\·en after a 

breach. 

There folloJPed a dimtnion the 1 I 2% of total deriJJedfron! .rtate la11d 

tm. The State contend!' that State pqyJ back the l·'Ciltte of the land, the 1 I 2% 

JPott!d be a corutitutiot1alfy prohibited dedicated fimcl. Plailltijfi" do 11ot qgm, tbiJ 

waJ ac~rattt of public Hhool land JJ•hich waJ to L'<.iJt that the State'J· mtiom 

do tzot the !latHre of the tm.rt, 1 I 2% iJ it iJ to be the 

.rche!J!e. Art. IX, 7 oftbe Ala.rka 

Jball 110t pmhibit the contilllia/lce 

upon the date of thiJ Jedion ~y the 

people of A!aJka. " 

The court holds that there is no violation of the dedicated funds provision. 

Education funding is required by the federal government for State 

12 
190 

participation in federal programs and the assets arc dedicated to schools by 

federal law. Furthermore, the trust fund and the purposes therefore existed 

prior to ratification of the Alaska Constitution. 

Thmfollowed a dimmion about 

1/2% contn'!Jlltion as 

to the 

cotttJib11tions to a and could be uithdrmwz 

State ask,· the comt to use the NJed in Lf7eiJ.r tJ. State, 706 

P.2d 681 [Alaska 1985], and iJ a breach the State rPants to payfit!l market 

mlue, i;utead the land. 

The court holds that without a valuation of the trust violations, it is 

premature to consider remedies. Therefore the parties' request for 

instructions is DENIED at this time. 

Land Appraisal Hiatus 

13 

As noted earlier, the State should have conducted an appraisal when the school 

lands were redesit,>nated as general grant lands in 1978. Then in 1999 the 

Superior Court ruling previously referenced ordered that there be an appraisal. 

Remedies in Kasayu!ie m. State ~lAJaska cannot be considered without an 

appraisal, the Court said. Nineyear.r later there haJ been no appraiJaL A new judge, 

Mark Rinder, has been assigned this case. 

There has been considerable dialogue between the State and the plaintiffs on 

this matter. Draft versions of a Request for Proposals (RFP) to conduct the 

appraisal have been circulated back and forth. There has been no activity on 

this matter for several years. The Department of Natural Resources 

ultimately will issue the RFP and will be responsible for the appraisal. 

There has been no lack of funds to pay for the appraisal. Legislative 

appropriations from the School Trust Investment Earnings Account totaling 

$737,525 have been made to DNR. Of this amount, $580,325 is unexpended 

and has appeared in the DNR operating budget through FY '09; it is not in the 

operating budget request for FY '1 0. The plaintiffs have received $110,900 

from the same account for expenses associated with planning for the appraisal. 

Maps of School Trust Lands, by Area 

The maps which follow show school trust lands patented to Alaska within a 

few years following Statehood, those added shortly after 1985, and those 

granted by the Alaska National Interest Lands Claim Act of 1980. 
191 

Maps of School Trust Lands, by Area 

Fairbanks • Glennallen • Wasilla/Palmer 

Kenai Peninsula • Southeast 

The Department of Natural Resources has three case types for school trust 

land. The maps that follow show each school section or tract in the color 

which identifies its type. They are: 

Case Type 107 

Case type 107 consists of school sections 16 and 36 surveyed prior to 

Statehood. As explained earlier, a case file number is the identifier for all 

school trust lands within a township (with some exceptions). These are the 

public school trust lands that were changed to general grant lands by the 

legislature in 1978. 

14 

Also included as case type 107 are sections or part sections surveyed prior to 

Statehood. but not confirmed as school trust land until after 1978. There arc six 

such cases, some with two sections and each is described in this paper. These 

are described in Section Three of this paper. 

Case Type 112 

Territorial grants are included in this case type. But only a single territorial grant 

included an eligible public school section 36. It \vas TG 3 and by the time it 

was confirmed as school trust property, it consisted of only the mineral rights 

on 160 acres. It is described in Section Three of this paper. 

Case Type 113 

Case type 113 consists of 75.000 acres of land granted to Alaska in 1980 under 

provisions of Section 906(b) of ANILCA. The grant was made in lieu of 

school trust lands not vested prior to Statehood. Three of these tracts will be 

found on the Wasilla/Palmer area map and one on the Southeast area map . 

.Ylaps courtesy of Chester Murphy, Cartof,>rapher, DNR 
192 

School Trust lands Fairbanks Area 

See the large Territorial Grant, Case Type 112, near Fairbanks. That is TG 2 

and it was granted in 1946 as a site for the Fairbanks Agricuhural Experiment 

Station. 

15 
193 

16 

School Trust Lands Glennallen Area 

The three large green tracts arc ANILC!\ land grants. 
194 

17 

School Trust Lands Wasilla/Palmer Area 
195 

School Trust Lands Kenai Peninsula Area 

One school section in Seward does not sho,v as it is outside the east border of 

the Kenai Peninsula Borough map. 

18 
196 

School Trust lands Southeast Area 

Several school sections near Haines are only partially shown. A tiny tract 

near GustaYus is not Yisible on the map. The green square near Tenakee 

Springs is not an "\NILCA tract. 

19 
197 

20 

Section Three 

Additional Grant Land Confirmed 

During the 1980's, audits by the Department of Natural Resources revealed 

that some of the 1959 school land withdrawals by the Federal government had 

been reversed. Audit results were reported by Carol Shobe, Chief of Realty 

Services, Land Division, DNR (Affidavit of Carol Shobe, NJJayulie ZJ. State of 

A!aJka, Nov. 16, 1998). Excerpts from this Affidavit follow: 

This audit determined which lands had not been conveyed to the State at 

statehood due to pre-statehood federal withdrawals that had been 

subsequently removed. I3LM indicated that it would convey such lands to 

the state ... As a result of the audit ... the state obtained an additional 

2,850.18 acres of school trust land after the enactment of ;\NJLC:i\ in 1980 . 

. . These lands are in addition to those land conveyed under 906(b) of 

ANILC\. 

According to the Srhool I And TruJt AppraiJa! Projett, a Department of Natural 

Resources report issued early in 1999, there were seven cases totaling 3,010 

acres which were confirmed between October 8, 1985 and l'ebruary 2, 1992. 

'l 'hese cases: 

Seward Meridian: 

Fairbanks Meridian: 

Copper River Meridian: 

Sch 13, Sch 230, Sch 231A. and TG 3. 

Sch 232. 

Sch 233 and Sch 235. 

TG 3 was a Territorial Grant of a section 36 made in 1957, according to the 

DNR report previously cited. By the time it \vas confirmed in 1991 prior 

claims had reduced school trust ownership to 160 acres of mineral rights. 

These seven cases were confirmed as school trust land after 1985 and so could 

not be included in the 1978 redesignation of school trust lands. Thus they have 

status as school trust land, with 100 percent of receipts from use to be credited 

to the Public School Trust Fund. 

Current Status of the Added School Land 

Several of the school trust tracts are not whole anymore and have been put to 

other uses. } I ere is a brief report of the current status of each case. 
198 

21 

Sch 13 (Sections 16 and 36 southeast of Sterling): Cook Inlet Region Inc. 

acquired 812 acres in a trade; Seldovia Native Association acquired 15 acres in 

the same trade. The balance is still owned by the State, 

Sch 230 (a section 36 north of Anchorage): The state first leased a small tract. 

Later the Municipality of Anchorage acquired a large portion under the 

municipal entitlement program and then deeded some to the Eklutna Native 

Association. In 1996 DNR reclassified Sch 230 as general grant lands. 

Sch 231A (part of a section 36 in southeast Anchorage): Obtained by MOA 

under the municipal entitlement program. 

Sch 232 (a section 36 southeast of Fairbanks): Intact. Still owned by the State. 

Sch 233 (part of a section 36 east of Chitna): Intact. Still owned by the State. 

Sch. 235 (small portion of a section 36 on Admiralty Island): is part of a school 

site for the City of Angoon. 

TG 3 (mineral rights on a portion of a section 36 near Anchor Point): 

Currently leased for oil and gas exploration. 

Income Prospects 

As will be revealed, only one of these tracts, TG 3, is receiving mineral lease 

receipts for the school trust fund. The amount could increase considerably if 

it became a gas producer. One other tract, Sch 13, has a lot of valuable Kenai 

River Front lots. But will they ever sell at the assessed values due to 

development constraints of being in the Kenai River Special Management 

Area? 

Descriptions and Maps 

The balance of this section presents a detailed description and historical 

account of each of these cases along with a map of each. 
199 

SCH13 

Size: 1 ,215. 97 acres Title Confirmation: February 3, 1992 

Legal Description: Seward Meridian, Township 5 N, Range 8 W, 

Section 16, and Section 36 Lots 1-9 inclusive, NE4, N2NW4, S2W4. 

See USGS Kenai C-2 and B-2 Quadrangle Maps. 

How to get there: Section 16 is two miles east of Sterling in the Kenai 

Peninsula Borough. The Sterling Highway crosses the upper portion. The 

Kenai River's Naptowne Rapids are a few hundred feet south of Section 16. 

22 

Section 36 is six miles southeast of Sterling; or two and one-half miles south of 

the Sterling Highway. Feuding Land Road and Kenai Keys Road connect the 

Sterling with Section 36. The Kenai River crosses the southwest portion. 

Ownership of Section 16: Cook Inlet Region, Inc. (492 acres); State of Alaska 

(145 acres); Seldovia Native Ass'n, Inc. (15 acres). Bing's Landing State 

Recreation Site, the State-owned tract shown in purple, is also a Kenai River 

Special Management Area. The small tract above it across the Sterling Highway 

is owned by the Seldovia Native Association. KPI3 ID Parcel Viewer Map. 
200 

23 

Ownership of Section 36: Cook Inlet Region, Inc. owns about half of the 

land, which includes 20 lots on the south side of the Kenai River. Borough 

appraised value of these lots totals $1,472,200, or an average of $73,000 per lot. 

Average lot size is 3.51 acres. 

The State of Alaska owns a bit less of Section 36 than CIRI but has 23 larger 

lots on the north side of the Kenai River. Total assessed value of these 23 lots 

in 2008: $9,549,200. The lots range in size from 2.61 acres to 6.99 acres. 

Average assessed value per lot: $415,183. Average assessed value per acre of 

the state-owned riverfront lots: $99,730. 

Section 36 ofSch 13 showing Private, Native (CIRI), and State ownership. Platted lots 

described earlier are shown on each side of the Kenai River. 'I11ere are 13 small lots in 

private ownership in the Stephenkie Subdivision on the west edge of the section; some lots 

border the Kenai River. 

iv[ost of the State land above the Kenai River is in the Kenai River Special Management 

Area. This special use area has many restrictions intended to protect the habitat. The .:\Iaska 

Department of Fish and Game manages the I<RSM/\. 
201 

24 

History: Cook Inlet Region, Inc. and the Seldovia Native Ass'n acquired their 

holdings in a reconveyance and exchange agreement dated June 29, 1979. In 

this exchange, or trade, the state then acquired Native land holdings and 

allotments in other areas of the state. 

This \Vas part of a larger trade in which CIRI acquired 14,714 acres of former 

school tmst land, some of it unpatented as school trust land, in 45 sections in 

the Seward Meridan. The exchange was a bit complicated: first, the state 

retumed ownership of the land to the Bureau ofLand Management; next, BLM 

patented the land to Native regional and village corporations in the Cook Inlet 

Region. To complete the trade the State acquired Native-owned land in other 

locations. 

Sch 13 was wsted January 3, 1959. But title confirmation of Sections 16 and 

36 as school tmst land came long after portions of these sections were traded 

or put to other uses. 

Income: None. 

Taxes: The tracts owned by CIRI and the Seldovia Native Association are not 

taxed by KPB. KPB is mandated under Alaska State Statute (29.45.030) and 

Federal Law (ANCSA) to exempt such undeveloped lands from taxation. 
202 

SCH 230 

Size: 549.45 acres Title Confirmation: October 8, 1985 

Legal Description: Seward Meridian 

Township 16 N, Range 1 W, Section 36 Lots 2 and 3. E2. E2W2. 

See USGS Anchorage B7 and C7 Quadrangle Maps. 

How to get there: From Anchorage go northeast about 23 miles on the 

Richardson Highway; take Paradis Ramp or Mirror Lake exit south between 

Birchwood and Eklutna; the tract borders Lake Edmund. 

25 

Owners: Eklutna Inc., 320 acres; Municipality of Anchorage. 200 acres; Alaska 

Council of Boy Scouts of America, 29 acres; Private ownership, 40 acres. 

History: The State's April13, 1960 application for patent (as Sch 36) was 

rejected by BLM because Section 36 was withdrawn by Secretarial Order of 

October 36, 1936 for possible inclusion in an Indian ResetYation. In 1965 this 

land was released from the Secretarial Order. (DNR Sch. 36 Case Abstract) 

In 1969 the State leased Lot 2 for 55 years to the Carlquist Howell Foundation, 

Inc. In 1979 the lease was amended from $885 per year to $2,302 per year. 

Lease administration was transferred from the State to the Municipality of 

Anchorage on November 11, 1986. (ADL File No. 41777) This lease is now 

being paid by the Great Alaska Council of Boy Scouts of America. 

The MOA first sought this land on July 1, 1978, only to find that the State did 

not yet have title to it. So it was not until January 28, 1987 that MOA acquired 

this land as a municipal entitlement under provisions of the Mandatory 

Borough Act of 1963. Then on june 29, 1987, MOA conveyed 320 acres via 

Quit Claim Deed to Eklutna Inc. This conveyance 'vas done according to 

MOA's North Anchorage Land Agreement which settled land issues between 

MOA and Eklutna Inc. (ADL File No. 201183 Case Abstract) 

Sch 230 was school trust land when it was conveyed to MOA. On March 27, 

1996 the Department of Natural Resources reclassified Sch 230 as general grant 

land. (ADL 201183 Case Abstract) 

On September 11, 2000 the Great Alaska Council of Boy Scouts of America 

purchased Lot 3 of this property from the MOA. Appraised value of the 29 
203 

26 

acres in 2007 was $799,000. It was given a chartable exemption in 2008. It is 

the site of Camp Carlquist, and is used by the Boy Scouts, Girl Scouts, and 

other community groups. (MOA Property Appraisal System, Parcel 052-041-

01--000) 

Income: Cnknown. 

General Information Sources: Alaska Department of Natural Resources online Land Administration System, including the Alaska Mapper; DNR School 

Grant Audit, November 17, 1998; Municipality of Anchorage on-line Property 

Appraisal System, MOA Heritage Land Bank. 

Sch 231 is the yellow portion of Section 36 in the map below. The darker yellow tract is 

owned by Eklutna Inc.; the balance is State, Great Alaska Council of Boy Scouts of America, 

and privately owned. The heavy black dotted line starting at the lower left corner of the map 

is the Richardson Highway. 
204 

SCH 231A 

Size: 160 acres Title Confirmation: March 31, 1988 

Legal Description: Seward Meridian 

Township 12 N, Range 3 W, Section 36 N2 N2 

See USCS Anchorage 1\-8 Quadrangle Map 

27 

How to get there: In South Anchorage take Rabbit Creek Road east from the 

New Seward Highway for three and one/half miles. At that point Rabbit 

Creek Road crosses the northwest comer ofSch. 231A .. East 140th Avenue 

borders it on the north; Hosken Street borders it on the west. 

Owner: Except for a 2.9 acre tract, Section 36 is owned by the Municipality of 

Anchorage. Initially it was managed by the Heritage Land Bank, and now by 

the Parks and Recreation Department. 

History: Sch 231A, the north one-quarter of Section 36, was obtained by the 

MOA December 15, 1988 under provisions of the state's municipal land 

entitlement program. Sch 231A was school trust land when it was conveyed to 

l\10A. 

Sch 2, the 480 acre balance of Section 36, had been patented to the State 

August 26, 1964. Then it was converted from school trust land to general grant 

land by the legislature in 1978. MOA received ownership August 25, 1980, 

under the municipal entitlement program. 

Even before MOA obtained ownership of the entire Section 36, residents of 

the Rabbit Creek and I3ear Valley areas began discussions on public and private 

use of the land. Many issues came up and many plans were proposed. Current 

plans for Section 36 to be a public park, with provisions for recreation and 

wildlife habitat, were approved in 2007, and the property has been platted. 

An Air Force Radio Relay Station was constructed in 1955-56 on this part of 

Section 36. This property, 2.9 acres, was later acquired by ALSCOM \vhich still 

owns it. 

Income: None 
205 

Sch 231A is the blue-lined upper one-fourth of Section 36 bclow. The 

brown-lined lo\ver three-fourths is Sch 2. The tiny sguare in Sch 2 is the 

ALSCOM site. Clark's Road crosses Sch 2 and connects to the l3ear Valley 

Subdivision. 

Map source: DNR Alaska Mapper 

28 
206 

SCH 232 

Acres: 640 Title Confirmation: March 12, 1990 

Legal Description: Fairbanks Meridian, T 4 S, R 4 E, Section 36 

See USGS Fairbanks C-1 and Big Delta C-6 Quadrangle Maps. Or for the 

township location only see USGS Big Delta Topographic Series Map, Scale 

1:250,000. 

How to get there: Sch 232 is in the Fairbanks North Star Borough 

approximately 30 miles southeast of Fairbanks and five miles east of the 

Richardson 1-lighway. It is six miles south ofEielson Air Force Base. 

29 

History: On April12, 1961 the State sought acquisition of Section 36 as part 

of its general grant land entitlement. This was rejected by BLM. 

On February 24, 1972 application for patent as school land was submitted. 

Time passes. Title was confirmed on r-.1arch 12, 1990. 

The Little Salcha River meanders across this section on its way to the 

Tanana River. A public use trail (right of way), which originates at the 

Richardson Highway, also crosses this section just north of the river. The Trans 

Alaska Pipeline is two miles west of Section 36. 

Income: None 

Sch 232. The right-of-way is shown in purple; the real trail is in black. 

The Little Salcha River (in blue) flmvs from east to west. 

Map source: Alaska Mapper, DNR 
207 

SCH 233 

Size: 280 acres Title Confirmation: February 1, 1990 

Legal Description: Copper River Meridian 

Township SS, Range 11 E, Section 36 S2 NE4, SE4 SW 4, SE4. 

See USGS McCarthy B7 Quadrangle rvfap. 

30 

How to get there: Sch 233 is in the Copper River Valley about 38 miles east 

of Chitina via the road to McCarthy. At that point it is one mile north of the 

McCarthy Road and two miles north of the Chitina River. 

History: Application for Section 36 to be patented as a school section was 

made to BLM April 15, 1960. 'Ibis was rejected in part as 280 acres had already 

been withdrawn under PSR 684. The 360 acre balance of Section 36 was 

patented August 8, 1964 as school land and designated Sch 92. 

On February 24, 1972, patent application on the rejected 280 acres was 

made again to BLM. Time passes. On February 2, 1990 this land \Vas 

confirmed as school trust land and was designated Sch 233. 

Sch 92, 360 acres, lost its status as school trust land in 1978 when it was 

classified by the legislature as general grant land. Sch 233, 280 acres, is still 

school trust land, as it was confirmed to the State after 1978. 

Income: None 

36 

Sch 233 is the beige colored tract numbered 32 in the center of the map. Former Sch 92 is 

the white portion of that section. Long Lake and the JVIcCarthy Road are shown at the lower 

right. Sch 92 and Sch 233 arc not shown in Section 36, the usual school section, due to 

location differmccs in surveyed land (colored tracts) and unsurveyed data (township and 

section grids). J\hp source: DNR Alaska Mapper 
208 

SCH 235 

Acres: 4.76 Title Confirmation: August 22, 1989 

Legal Description: Copper River Meridian 

T 50 S, R 67 E, Section 36, Lot 8 

See USGS Sitka B-2 and C-2 Quadrangle Maps 

31 

How to get there: Go to Admiralty Island in Southeast Alaska; then to the 

City of Angoon. Section 36 is on the west edge of Angoon and is bordered by 

Chatham Strait. 

History: The State first sought patent for Lots 2-7 of Section 36, then 

designated as Sch 118, June 27, 1960. This application was rejected as the land 

had been withdrawn for Tongass National Forest purposes. 

Then on February 11, 1975 school land status as Sch 235 was sought for Lots 

2,4,5,8, 9 and a portion of Lot 7 in Section 36. Only Lot 8 was held for 

approval. The other lots were rejected because they were within Tongass 

National Forest. Final approval did not occur until August 22, 1989, when 

BLM confirmed the title. 

Lot 8 is a part of the City of Angoon school site. A school building was 

constructed on it in 1979. 

Section 36 totals some 150 acres; the balance of what would be Section 36 is 

covered by the waters of Chatham Strait. 

Income: None 
Sch 235 is shown above. It is Lot 8 in Section 36. 1he U.S Survey 1567 of 

January 17, 1980 was only on the westerly portion of Lot 8. The U.S. Survey 

was based on a DNR plat of the area prepared September 30, 1979. This 

survey was accessed using DNR's Alaska Mapper. 
210 

TG3 

Size: 160 acres Title Confirmation: December 30, 1991 

Legal Description: Seward Meridian, Tmvnship 4 S, Range 15 W 

Section 36 W2NW4, N2SW4 (minerals only), 

Sec lJSGS Seldovia D-5, D-6 Quadrangle Maps 

33 

Location: Territorial Grant 3 is in the Kenai Peninsula Borough 1 & 1/2 miles 

east of Anchor Point, a small community on the Sterling Highway north of 

Homer. 

History: On February 19,1957 title was vested to the State of Alaska for all 

minerals in this 160-acre tract. The surface rights were already privately owned 

since the land was homesteaded. 

The rest of Section 36,480 acres, became Sch 77 when on June 20,1961 BLM 

granted a patent to the State of Alaska. Then in 1978 Sch 77 lost it status as 

school trust land when the legislature redesignated it as general grant land. On 

June 29, 1979, the former Sch 77 was acquired by Cook Inlet Region, Inc. in a 

reconveyance-exchange agreement with the State of Alaska 

Then on December 30, 1991 the State received confirmation of title for TG 3 

as school trust land (minerals only). 

Oil and Gas Leases: 'I'G 3 was first leased for oil and gas in 1968 and again in 

1996. In 2003 the lessees were Aurora Gas LLC and ConocoPhillips Alaska. 

Since June 1, 2005, it has been under lease by the Union Oil Company of 

California (UNOCAL). 

The 1996lcase of 1,575 acres included TG 3's 160 acres, which is 10.2 percent 

of the total. TG 3 would have been credited with 10.2 percent of lease income 

for the entire leased aes 

UNOCAL's current lease covers 2,348 acres. TG 3's 160 acres is 6.8 percent of 

the total acreage. So TG 3's share of any lease income would be 6.8 percent. 

J f there should be production on this lease, royalty income to TG 3 would be 

6.8 percent of 12.5 percent of the royalty amount. UNO CAL of course 

would retain the balance of 87.5 percent net of royalty. 
211 

Lease Income: 

Est. Amount 

Year Total Lease toTG 3 

1996 $ 5,673 (deposit) $579 

1997 24,341 (bonus bid) 2,483 

1998 5,516 563 

1999 3,940 402 

2000 4,728 482 

2002 4,728 482 

2003 4,728 482 

2004 15,876 (bonus bid) 1,080 

2006 3,524 240 

2007 4,698 319 

2008 5,872 396 

TG 3. 'Ihe school land trust owns the mineral rights of the blue 160-acre 

tract of Section 36 sho"vTl above. The surface rights of this tract are privately 

owned. The small lots were subdivided from two SO-acre homesteads. 

The brown portion of Section 36 is owned by Cook Region Inlet, Inc. 

ClRl has both surface and mineral rights of its 480-acre tract. This tract is 

not included in the oil and gas lease. 

Anchor Point and the Sterling Highway are one and one-half miles west 

of this section. 

Map source: KPB Parcel Viewer 

34 
212 

35 

Section Four 

A New School Trust Land Grant 

The Alaska National Interest Lands Conservation Act (ANILCA), P.L. 96-487, 

Dec. 2, 1980,94 Stat. 2371, specified that Alaska was to receive an additional 

75,000 acres of school land. Provisions for the new land grant was in Section 

906(b), which read in part: 

SCHOOL LANDS SETTLEJ\IENT.-- (1) In full and final settlement of any 

and all claims by the State of Alaska arising under the Act of March 4, 1915 

(38 Stat. 1214), as confirmed and transferred in §6~0 of the :\Iaska 

Statehood Act, the State is hereby granted seventy-five thousand acres which 

it shall be entitled to select until January 4, 1994, from vacant, 

unappropriated, and unreserved public lands. In exercising the selection 

rights granted herein, the State shall be deemed to have relinquished all 

claims to any right, title, or interest to any school lands which failed to vest 

under the above statutes at the time '\Iaska became a State Qanuary 3, 1959), 

including lands unsurveyed on that date or surveyed lands which were within 

Federal reservations or withdrawals on that date. 

(3) Lands selected and conveyed to the State under tl1is subsection shall be 

subject to the provisions of subsections (1) and (k) of §6 of the Alaska 

Statehood Act. 

Reasons for the New School Land Grant 

Alaska received this additional school land because it was unable to select and 

patent all land to which it was entitled in 1959. That is, part or all of many 

sections 16 and 36 could not be conveyed to the State due to pre-statehood 

federal witl1drawals including territorial homestead entries, inclusion in a 

national forest, territorial grants, federal public land orders, mining claims, and 

conveyances for territorial use. One report indicates that of some 181,000 

acres eligible for selection as school land, only 104,000 acres were ultimately 

patented (School Grant Audit, DNR, Revised Updated, November 17, 1998). 

By 1986 the Alaska Department of Natural Resources (DNR) had not yet 

selected any tllC new school land. According to DNR the delay was necessary 

to clear up conflicts in conyeyances on related land transfers, and because of an 

ongoing audit of sections 16 and 36 to determine if Alaska received all the 

school trust land to which it was entitled under the 1915 Act of Congress. As 

previously noted, lifting of pre-statehood federal withdrawals on some trust 

land allowed Alaska to now claim school sections it was originally denied. Such 

action had to be taken before selecting ANILCA Sec. 906(b) lands. 
213 

36 

Land Status in 1986 

The status of the new school land grant was stated by DNR that year (Letter 

from Tom Hawkins, Director, Division of Land and Water Management, to E. 

Dean Coon, December 16, 1986) which stated, in part: 

AJyou atr mvarr, otz July 1, 1978, the lfcgiJlaftm na,mgnatea 

grant !aJtd, tPhich 103,000 aar.r I lmPez.-er, the 

rrdesignation does not af!ed land aj2p!VtJedfiJr tonvevaJZCe qfter Tulv 1. 1978. Je,~ 906(/J) 

ofANJLCA JtateJ that "lands Jeletted a11d m;myed lo the State under thiJ mbsection 

Jhal! be to {j) and (k) of SectioN 6 of the Ala.rka 

Statebood.Act." oftbe Statehood Att related to the 

am·unnm11m of title to the State of Alaska and management 

IPStJittiotzJ~ 

Once the Sec. 906(b) land is selected and title is obtained, tl1is 

manage the land as general grant land is managed. 

trust account is established so tlut revenues derived from this land will be 

placed in ilic public school fund. added. 

Criteria for ANILCA Grant Land Selection 

The Department of Natural Resources established criteria for selecting the ne\v 

school land. Resource value of the land would be a major criterion, and was 

detailed in a DNR document (E. ANLICA School Grant, prepared by Dick 

Mylius, Manager, Division of Land, Resource Assessment and Development 

Section, n.d.). An excerpt follows: 

Selections should be for Lmd capable of earning revenue for the state. The 

desire was to limit the number of parcels to four or less to reduce 

management and survey costs. Because the grant is small, it was desired tlut 

all of the selections be conveyable, that is, the grant would not be used to 

topt!le on lands selected by ANCSA corporations, currently withdrawn, or 

encumbered with federal mining claims. 

Very few of the lands available for selection had high enough surface values 

that could be turned into revenue with certainty, so the steering committee 

decided to select land witl1 subsurfKe values or with both surface and 

subsurface potential for iliis grant It was determined iliat this acreage was 

too small to use to acquire land in speculative oil and gas areas. Areas witl1 

known and accessible sand and gravel were identit!ed by DGGS (Division of 

Geological and Geophysical Services), but determined not to be available. As 

a result, the usc of this grant focused on land wiili potential mineral deposits 

or a mix of mineral and surface values. 
214 

The Land is Selected 

The land ultimately selected on May 21, 1993 comprised three large tracts as 

well as part of one section. Locations of these ANILCA 906(b) lands: 

Copper River Meridian: 38,647 acres southeast ofTonsina, located in 

Township 3 South, Range 2 East, and T. 4 S., R. 2 E. 

Fairbanks Meridian: 17,190 acres north of the Denali Highway in the 

Clearwater Mountain Range, located in T. 19 S., R. 5 E., and T. 19 S., R. 6 E. 

Fairbanks Meridian: 19,027 acres south of Black Rapids Glacier within the 

Alaska Range, located in T. 18 S., R. 8 E. 

Copper River l'vleridian: 66 acres southeast of Gustavus .'\irficld. 

Section 16, Lot 2, T. 40 S., R. 59 E. 

i\cres patented: 74,930 

37 

The Mylius document, previously cited, estimates acreages in the Fairbanks 

Meridian have good economic prospects for mineral development, noting they 

contain " ... the Zackly gold-copper skarn deposit with estimated resetTes of 

1.25 million tons of 2.6% copper and greater than 6 grams of gold per ton ... 

with a high potential for metamorphic gold veins and moderate potential for 

placer gold and basalt-related copper deposits .... " 

Trust Income 

The ANILCA grant land is "school land" and all receipts from its use, such as 

gravel sales, mineral leases, rent, etc., is being held in a DNR escrow account 

due to the current litigation. Ultimately it will be credited to the Public School 

Trust Fund. DNR Commissioner Tom Irwin, in a letter to State 

Representative Bob Roses (8/14/07) stated that" ... from December 21, 1998, 

to the present, 100% of revenues generated from these lands have been 

accounted for within a separate DNR account. As of August 14, 2007, this 

account contains $1,715,355." 

Descriptions and Maps 

The Department of Natural Resources designated the ANlLCA land case 

identification ANISS, for Alaska National Interest School Selections. 

Descriptions, tract income, and maps of the four ANISS cases follow. 
215 

ANISS 1 

Size: 38,64 7 acres Patented to the State: Sept. 10, 1999 

Legal Description: Copper River Meridian 

T.3 S, R.2 E. Sections 1-6, 8-17,20-36. 

T.4 S, R.2 F\. Sections 1-22 inclusive excluding Native allotment application 

AA-7242, Parcel A in Sections 8 & 9 

T. 4 S, R. 2 E, Sections 23 and 24, 28 and 29, 32, 33, W2,W2NE4 

See USGS Valdez C-3 and C-4 Quadrangle Maps 

38 

How to get there: ANISS 1 is in Southcentral Alaska 80 miles northeast of 

Valdez. The northwest corner is one mile southeast ofTonsina. Midpoint of 

the western border is three and one-half miles east of Milepost 75 on the 

Richardson Highway. Dust Creek and Bernard Creek traverse Township 3 

from NW to SE. l<.imball Pass Trail traverses north to south in both 

townships. 

Mineral Lease Activity: There were a number of claims closed after the land 

was patented. Claims generated approximately $16,375 in lease rent. 

There are now 46 160-acre active mining leases in Township 3 S, all based on 

mineral discovery claimed as of May 15, 2006. They are in Sections 13 and 22 

through 34 and encompass 7,360 acres. Rental lease on each quarter section is 

$100 per year (rate for the first five years). 

The mineral leases are now held by Pacific North West Capital Corp., 

Vancouver, B.C., Canada. lt bills itself as an explorer/project generator in the 

search for Platinum Group Metals (PGI\1) and Nickel in North America. This 

is Pacific North West's Tonsina Project, one of 11 mining projects it has in the 

United States and Canada. i\ccording to a 2007 company statement, nickel, 

copper, and platinum mineralization have been found there. According to an 

affida,-it filed with the Department of Natural Resources, the company spent 

$119,905 on geologic mapping, geochemical sampling, hand trenching, and 

sampling in the 12-month period ending August 31,2007. 

In addition to the active mining claims there are two placer mine permits and 

one active temporary water use permit on AN ISS 1. No revenues from these 

three permits were found. 
216 

Income: $ 16,375 from early claims now closed 

$ 9,200 from 1995 through 2006. 

$ 1 1,500 for leases in 2007-2008 

Town ofTonsina is at the 

seerions leased for .minetals. 

Map source: DNR Alaska Mapper 

39 
217 

40 

ANISS 2 

Size: 17,190 acres Patented to the State: May 15, 1999 

Legal Description: Fairbanks Meridian 

T 19 S, R 5 E, Sections 1 and 2, 11 to 14 inclusive, and 23 to 26 inclusive 

T 19 S, R 6 E, Sections 4 to 10 inclusive, 15 to 22 inclusive, 29-30 

See USGS Mt. Hayes B-6 and A-6 Quadrangle Maps 

How to get there: ANISS 2 is in the northern part of the Matanuska-Susitna 

Borough between the west fork of the Maclaren River and upper tributaries of 

the east fork of the Maclaren River. The south border of AN ISS 2 is nine 

miles north of the Denali Highway. There is a winter trail from the Denali 

Highway to an old mine site at the east border of Range 6 E. 

Mineral Leases: There were a number of claims after the land was patented to 

the state, but these have been closed for several years. There are no active 

claims at the present time. 

There is a abandoned mine one-half mile from the cast border of ANISS 2. 

It is on Section 10ofT 19 S, R 6 E and there is an airstrip nearby. 

According to DNR documents this acreage has good economic prospects 

for mineral development, specifically noting it contains " ... the Zackly goldcopper skarn deposit with estimated reserves of 1.25 million tons of 2.6'% 

copper and greater than 6 grams of gold per ton ... with a high potential for 

metamorphic gold veins and moderate potential for placer gold and basalrelated copper deposits ... " 

The land is classified by DNR as "'public recreation and \Vildlife habitat." 

Income: $ 3,235 from claims now closed. 
218 

ANISS 2, shown below, is devoid of any mineral prospecting. There are 

mineral claims on several sections bordering the bottom of this tract. 

i\1ap source: DNR Alaska J\'lapper with satellite imagery. 

41 
219 

ANISS3 

Size: 19,027 acres Patented to the State: May 14, 1999 

Legal Description: Fairbanks Meridian 

Township 18 South, Range 8 East, Sections 1-22, and 27-34 

Sec Mt. Hayes B-5 Quadrangle Map 

42 

How to get there: AN ISS 3 is in the northern part of the Matanuska-Susitna 

Borough about 160 miles south of Fairbanks. It is about 12 miles north of the 

Denali Highway which may be accessed from either the Parks Highway (west) 

or the H.ichardson Highway (east). lt is northwest of Tangle Lakes. 

Mineral leases on 5,040 acres. There arc 126 currently active leases in 

ANISS 3. Sections with active claims in T 18S. R 8E are: 13 (south half), 19 

(south half), 27 (south half), 28 (south half), 29 (560 acres), 30, 31, 32, 33, and 

34. There are 170 closed mining claims in ANlSS 3. 

Mineral lease holder: Pure Nickel Inc., 95 Wellington Street West, Suite 900, 

Toronto, Ontario, Canada. Pure Nickel's MAN Alaska Project encompasses 

almost 280 square miles in south central Alaska. The ANISS 3 township is 

near the northwestern edge of this huge leased area. 

Pure Nickel bought the ~iAN Alaska Project leases from Nevada Star 

Resources in February 2007. Prospecting expenses of$1,461,172 were 

reported on 1,840 claims in the 12-month period ending September 31,2008. 

On November 5, 2008 ITOCHU, a Japanese conglomerate, offered $40 million 

for 7 5 percent ownership of Pure Nickel's MAN Alaska Project. 

According to a Nevada Star news release dated August 17, 2005, exploration 

of this large area began in 1995 and findings were characterized by extremely 

high nickel and gold concentrations in surface samples. More recent 

exploration results indicate potential for significant discoveries of nickel, 

platinum-group elements, gold and copper. 

Income from Leasing: 

$ 2,424 from closed claims; 2006 or earlier 

$ 40,820 from active claims in FY '07 and FY '08 

$ 111,750 from all claims since their filings; includes income through FY '08. 

(Note: some income may be from leases active prior to May 23, 1994.) 
220 

ANISS 3 (upper map). ANISS 3 mineral claims; blue portion (middle of 

page). Pure Nickel MAN Project location (bottom of page). 

43 
221 

ANISS 4 

Size: 66.63 acres Patented to the State: May 24, 1994 

Legal Description: Copper River Meridian 

Township 40 South, Range 59 East, Section 16, Lot 2 NW4 NW4. 

See USGS Juneau B-6 Quadrangle Map. 

44 

How to get there: ANlSS 4 is in Southeast Alaska and on the southeast edge 

of Gustavus just south of the Gustavus Airport. The south and southeastern 

edge of this tract borders Icy Strait tidal flats. lt is about a mile southeast of 

the Gustauas School of the Chatham REAA District. The Gustavus Rink Trail 

traverses this tract. 

History: On June 27,1960 the State applied for 168.15 acres of Section 16 

(the balance was in the tidal flats and/ or under the waters oficy Strait). This 

application was rejected by BLM. Eventually 101.5 acres was patented as 

school trust land and designated as Sch 114. 

Later, 66.63 acres of this section adjacent to Sch 114 was reserved by BUv1 for 

use of the Civil Aeronautics Administration (now the l 1

i\i\). Ibis Federal 

reservation was withdrawn in 1989 and the State applied for a patent as school 

land. This was rejected. Then, according to the DNR Case File Abstract, the 

land was to be converted from GS-2309 (General Grant Land) or filed for 

under Section 906(b) of ANILCA The ANILCA option was chosen and this 

small tract, 66.63 acres, became ANISS 4. 

AN ISS 4 does not meet the criteria for selection as an ANISS property. lt 

appears not to have minerals or other income potential at this time. 

Income: None 
222 

ANISS 4 is the small light colored rectangle in the center of the map below. 

Gusta\'US is to the west. The airport runways are above ANISS 4. Gustavus, 

directly west of Juneau, is at the entrance to Glacier Bay National Park and 

Preserve. 

Map source: DNR Alaska I'vlappcr 

45 
223 

Section l'ive 

The Future 

Less than Fair Market Value! 

"VeciM:Orv ~'to-~ cv .315 ~at" Ze#-thcvrvfa,ir 

m.a.vl<;,a" vci/..,ue; a...ue, 'to- fh.e, fr;:u::.t ~ fh.e, la-vtd,. a:pp ~ 

foy Wat' "~ ~ "* 

*Notation in the DNR case file abstract 6/26/68 regarding lease of public school tmst land to 

the Alaska Department of Transportation for a Fairbanks district depot (South of Airport \\'ay 

and east ofl'egcr Road). The lease of34 acres at $40 per year for 55 years was approved. 

46 

The lease transaction cited above seems to sum up the attitude that Alaska has 

taken toward the public school trust land. Certainly no one was "minding the 

store" when the legislature in 1978 took all the school trust land and made it 

general grant land. Did anyone consider the trust beneficiaries - the public 

school students. Did anyone speak for them? 

The potential income-producing value of this land, situated as most of it was 

throughout the populated areas, seemed to have been ignored. Now the land 

trust is land poor. Can, or should, this situation ''be fixed." 

Assessing the Situation 

Here are the current assets of the Public School Trust: 

• 3,010 acres of land patented or confirmed after 1978, although 

examination will show very little of this is left to produce income for 

the Fund. Lease income for 2007 and 2008: $ 715 (est). 

• 7 4,930 acres of a new land grant under the Alaska National Interest 

Land Claims Act; most are large tracts that have some mineral lease 

income but no producing mines. Lease income for 2007 and 2008: 

$ 53,320. 

• A share of income from the State's general t,'Lant lands (.5% of the 

annual receipts) which amounts to an average of $ 11 million per 

year; this is credited to the Public School Trust l'und principal. Soon 

there will be more than 100 million acres of state grant lands. 
224 

47 

• A Fund balance on 1/30/09 of$ 318 million which earns, on the average, 

approximately $12 million per year. This investment income becomes 

part of the school foundation monies distributed to school districts. Its 

identity as school trust money is lost 

Isn't Everything O.K.? 

So what if the school trust has very little land. And that the school land it has 

is earning very little. It does have a steady source of other income for the trust 

fund principal. The investment earnings of the Fund are going to the public 

schools via the foundation program. Even the litigation has not crippled this 

process (although several million dollars are being held in escrmv pending the 

outcome of the court case). 

What is the matter with that? Does anything need to be fixed? 

Yes, Fix It! 

''Yes," say several Alaska groups, \vho contend there are a number of 

important changes that must be made to enable the school land trust to regain 

its original purpose and achieve its potential. A "reconstitution" of the Trust is 

often mentioned as the only sure way to "cure" the breach of the Trust. 

The groups are the Alaska Parent Teacher Association, the Alaska Association 

of School Boards, and the Citizens for the Educational Advancement of 

Alaska's Children. The PTA and AASB have issued strong resolutions about 

the trust; these are included in the Appendix. 

Some of the changes would require legislative action. Here are a few of the 

recommended actions and changes proposed by these groups and others: 

• Kasayu!ie Z'.l: State o(A!aska must be settled. If there must be an appraisal of 

school land, do it or abort it by mutual agreement of the plaintiffs and the 

State. (Expense funds for both the State and the plaintiffs to plan the appraisal 

have already been drawn from the trust fund investment earnings account; this 

practice can be resumed if there is agreement to conduct the appraisal). Then 

the long awaited court-specified review of financial management of Fund and 

land assets can be conducted. 1be court can then determine the consequences 

to the State of breaching the trust as well as ordering needed changes. 
225 

48 

• There should be reconstitution and active management of the land trust and 

fund. The nature of this would be determined by additional research and with 

participation of the beneficiaries or representatives of the beneficiaries. This 

could call for additional state land to be set aside for public school support. A 

complete multi-year audit ofland and fund management must be conducted. A 

strong state-level advisory committee must be created. This historic land trust 

must be allowed to fulfill the purpose for which it was originally created. 

• Do not credit the Fund's investment income to the foundation program. The 

investment earnings must be used in a productive and visible manner by every 

school in every district. Some alternative uses: 

(1) Use it for local school programs or activities specified by local 

school advisory committees (district-wide or one for each school). 

The money would be 'on top' of the regular school budget. Such 

things as school activities, student travel, or library and media are 

examples. Distribution to the districts would be on a weighted 

student basis. 

(2) Or the money could be used for a state-wide school construction 

bond program. Current investment income could easily pay for a 

$250 million 25-year bond issue. 

Diverting the Fund's investment earnings from being put in the foundation 

program, where it is a very small percent of the total, is crucial to getting the 

time and support of the groups interesting in "fixing it." 

What's Next? 

Who can best represent the beneficiaries - the public school students - in this 

endeavor to restore the Public School Land Trust and Public School Trust 

Fund to positions of strength and growth? An endeavor which will enable the 

State to renew the promise it made at Statehood. 

Who will spearhead the necessary actions and when will the ongoing modest 

effort be expanded? Do the current interested parties agree on the desired 

goals? Are the financial resources available to pay for legal and other expenses 

which will be required? Are there other agencies with interest and resources 

which could help? 

These challenges must be met if the Public School Trust Land and the Public 

School Trust Fund are to achieve their potential. 
226 

APPENDIX 

School Tmst Land and Funds 

}Jaska PTA Resolution 

* * * * * * * * 

Reconstitution and f\ctive Management of the 

Public School Land Tmst and Permanent Fund 

Alaska Association of School Boards' Resolution 

* * * * * * * 

Partial List of Information Resources 

Alaska Public School Land Tmst an.d Fund 

* 

49 

* 

* 
227 

Whereas; 

Whereas; 

Whereas; 

Whereas; 

Whereas; 

Resolved; 

Resolved; 

Resolved; 

Resolved; 

50 

School Trust Lands and Funds 

Adopted by Alaska PTA Convention, April29, 2005 

Early in our nations history the import and support of public education 

was established by the granting of school trust lands in every state and the 

establishment of corresponding permanent school funds; and 

In 1915, 106,000 acres were transferred by the Alaska School Lands Bill 

to the Alaska Public School Lands Trust in the original school trust land 

grant; and 

In 1978, The Alaska State Legislature converted the school trust land to 

"state lands" to be compensated by .5% of all of the income generated by 

all general state lands; and 

The conversion was made without the beneficiaries or representative of 

the beneficiaries consent; and 

The income derived from these lands must be used to support the public 

school children of Alaska as the beneficiaries of the trust; and 

That Alaska PTA shall provide information to parents, educators, policy 

makers and the public about school and institutional trust lands and 

permanent school funds; and be it further 

That Alaska PTA shall support management of the Alaska Public School 

Lands Trust that is consistent with legally recognized trust principles of 

sound financial management to provide maximum benefit to the children 

in public schools who are the beneficiaries of that trust; and be it further 

That Alaska PTA supports compensation for unfulfilled legally binding 

commitments made by state and federal governments to the Alaska Public 

School Lands Trust; and be it further 

That Alaska PTA urges state and federal lawmakers to support public 

schools by ensuring that the historic trusts are allowed to fulfill the 

purpose for which they were originally created. 
228 

Alaska Association of School Boards 

Resolutions: FUNDING 

2.27 RECONSTITUTION AND ACTIVE MANAGEMENT OF THE 

PUBLIC SCHOOL LAND TRUST AND PERMANENT FUND 

51 

AASB supports additional research into reconstitution of the Alaska Public 

School Land Trust, active management of the trust and working with Alaska 

PTA and other educational stakeholders to that end. 

Rationale. A promise was made to Alaska public school children on March 

4, 1915, when "An Act to reserve lands to the Territory of Alaska for 

educational uses, and for other purposes," (38 Stat. 1214, Public Law 63-

330/Chapter 181, 63 Congress, Session 3) was approved by Congress and 

signed by President Woodrow Wilson. PL 63-330 requires when federal 

lands are surveyed, Sections 16 and 36 in each township shall be and were 

reserved for the support of cmmnon schools in Alaska. 

Adopted 2007 
229 

Partial List of Information Resources 

Alaska Public School Land Trust & Fund 

March 2009 

State Agencies 

1. Alaska Department of Revenue 

Commissioner Patrick Galvin 

550 W. 7lh Ave., Suite 1820, Anchorage, AK 99501 

Treasury Division, Pam Green, Comptroller 

P.O. Box 11405, Juneau, AK 99811-0400 

Im:estment Policies and Pngedures, Version 2.2 Released January 21, 2005 

(Get later edition) 

Section XII C: Public School Trust Fund Investment 

Available online at ~+"-':...1....'"'-"'--'-"-'-""'-'~""""'"""''""""~~'--""""""''-=~~-"'-'1'-""'"'+' 

An excellent source; besides im'estment po&-ies it has bZ:rtorical and jinam:ial data. 

2. Alaska Department of Natural Resources (DNR) 

Commissioner Tom Irwin 

400 Willoughby Ave 5th Floor, Juneau AK 99801-1724, or 

550 West 7th Ave, Ste 1400, Anchorage AK 99501-3554 

Fiscal information: Division of Support Services 

Land information: Division of Mining, Land and Water, online at 

http: I I plats.landrecords.info I index.html 

Select: Research DNR Case Files Land Administration System (LAS) 

Case typefor the new school land Z:r 113 ANIJS, ANILCA Jd.10ol Je!ect,jiles 14. 

52 

Case type/or former school land Z:r 107 SCI f,jiles 1-232 (need 1999 DNR audit flo.;:) 

Or for sections 16/36 a!lJIVbere enter tbefo!lou;ing abstract information: meridian, t01vn.rbip, 

range, section, and case t;pe. 

3. Alaska Department of Education and Early Development (DEED) 

Commissioner Larry LeDowc, or Eddie Jeans, School Finance Director 

801 W. 10th St., Ste 200,Juneau 1\K 99801-1894 

4. Alaska Superior Court, Third Judicial District, Anchorage 

Judge Mark Rinder 

825 W. 4th Avenue, Anchorage, AK 99501-2004 

Ju4ge Rinder is assigned to handle Kasayulie !!J: State of Alaska. He succeed1judge ]obn 

Reese, wbo retired in 2004. 
230 

5. Department of Law, Office ofthe Attorney General 

Labor and State Affairs Section Anchorage 

Brian Bjorkquist, Senior Assistant Attorney General 

1031 W. 4th Ave, Ste 200, Anchorage, AK 99501-1994 

6. Public School Fund Advisory Board (per AS 37.14.120) 

c/o Alaska Department of Revenue, Treasury Division 

This Board has five members, currently Commissioner of Revenue Patrick 

Galvin, Commissioner of Education and Early Development Larry LeDoux, 

and State Board of Education members Phillip Schneider, Patrick Shier, and 

one to be named. 

53 

Ot!Jer mluable information source.r, all aca:s.rible z~a the State ofAlaska website, include the 

Legi.rlatiz;e Finance Committee and the Department ojAdministration, zv!Jid.J mmpiles tbe 

ComprehemizJe Annual Finamial Report (az;ailable ez,ery January). 

Plaintiffs and Counsel- KaJqyu!ie t/r. Jtate of A!aJka 

7. Parents. Willie and Sophie Kasayulie, Akiachak; Paul and Mary Mike, 

Kotlik; and Arthur and Ruth Heckman, Pilot Station. 

8. School Districts. Bering Strait S.D., Unalakleet; Iditarod S.D., McGrath; 

Kashunamut S.D., Chevak; Lower Kuskokwin S.D., Bethel; Lmver Yukon S.D., 

Mountain Village; and Yupiit S.D., Akiachak. 

9. Citizens for the Educational Advancement of Alaska's Children 

CEAAC Z:r a broad!;· ba.red a.uociation ofAla.rka .rchool dirttids. 

Joe Beckford, President (Superintendent, Aleutian Region Schools) 

Spike Jorgenson, Executive Director 

c/o Harold Webb Associates Alaska, P.O. Box 132, Tok AK 99780 

10. Counsel. 

Jermain Dunnagan and Owens, P.C. 

Attorney Howard S. Trickey 

3000A Street, Suite 300, Anchorage, AK 99503 

Trust Fund History and Analysis 

11. The Alaska Public School Fund: A Permanent Fund fOr Education, a 

research paper by E. Dean Coon, University of Alaska Fairbanks, March 1984, 

40 pp. 
231 

54 

12. A Promise to .&ep: The Alaska Public School Trust Fund: A History 

of the Fund -1985-2004, a research paper by E. Dean Coon, Anchorage, AK, 

January 2005, 50 pp. 

These papers an in tbe State Library in .Juneau and at LouSJac, UAA and UAF. A 

Promise to Keep m~~:y be accessed on !be JYJA Jveb site. Abstracts oftbese papers, and copies 

oftbefollmving tu;o documentr, an ami/able }rom the author at dean.ak@gcz:net. 

13. Timeline, Alaska School Trust Land and Trust Fund, Major and 

minor facts and events ofthe past 90 years, Fa112005, by E. Dean Coon. 3 

PP· 

14. Partial List oflnformation Resources, Alaska Public School Land 

Trust & Fund, March 2009, by E. Dean Coon. 2 pp. 

Advocacy Groups 

15. Alaska Parents and Teachers Association 

President, AI Tamagni 

Alaska Public School Land Trust Committee, Suellen Appellof, chair 

(past president) 

555 West Northern Lights- Ste 204 (or Box 201496) 

Anchorage, 1\laska 99520-1496 

Web site:!.!.>.!¥'"-'-'"-"'-'-'-"""""~"'""""""---""-*'"""­

Web site: '-'""'+=-'-'"-""-"'-""""'~'+'-""""'=~==..:="""'=~ 

16. Children's Land Alliance Supporting Schools- CLASS 

675 East 500 South, Suite 340, Salt Lake City, Utah 84102 

\VW\v.childrenslandalliance.com 

CLASS is a SOle 3 beneficiary organization formed in 2001 for the purpose 

of educating and training education leaders and the public about 

school trust lands. 
232 

Testimony before the U.S. Senate Committee on Energy and Natural Resources 

Implementation of the Alaska National Interest Lands Conservation Act of 1980 

December 15, 2015 

Testimony on behalf of Doyon, Limited 

Submitted by James Mery, Senior Vice President, Lands and Natural Resources 

Madam Chairman and Members oft he Committee, on behalf of Doyon, Limited, thank 

you for the opportunity to provide testimony to the U.S. Senate Committee on Energy and 

Natural Resources on the implementation of the Alaska National Interest Lands Conservation 

Act of 1980 ("ANILCA"). 

My name is James Mery.l am the Senior Vice President of Lands and Natural Resources 

of Doyon, Limited. 

Doyon is one of thirteen Alaska Native regional corporations established pursuant to the 

Alaska Native Claims Settlement Act of 1971 ("ANCSA"). Headquartered in Fairbanks, Doyon is 

the largest private landowner in Alaska, with a land entitlement under ANCSA of more than 

12.5 million acres. Doyon's lands extend from the Brooks Range in the north to the Alaska 

Range in the south. The Alaska-Canada border forms the eastern border and the western 

portion almost reaches the Norton Sound. 

Doyon's mission is to promote the economic and social well-being of our shareholders 

and future shareholders, to strengthen our Native way of life, and to protect and enhance our 

land and resources. Voting shares of stock in Doyon originally were issued to 9,061 Alaska 

Natives who are the indigenous people ofthe region and whose ancestors inhabited the region 

for thousands of years. In March 1992, shareholders approved giving stock to Native children 

born between 1971 and 1992, missed enrollees, and Elders who were age 65 by December 

1992. Today, Doyon has more than 19,200 shareholders. We are very proud of our record on 

behalf of our shareholders. 

Doyon, as is the case with other Alaska Native Corporations ("ANCs"), owns lands that 

now are located within the boundaries of National Wildlife Refuges, National Park System units, 

and other conservation system units ("CSUs"). In fact, approximately one-third of Doyon's total 

land allotment-or 3.6 million acres-is located within the boundaries of CSUs. These Nativeowned lands are not Federal public lands, are not trust lands, and were not intended to be 

administered as part of the CSUs. This distinction, in the purpose of land ownership and use, 

must be understood fully for it governs land management policies and relationships every day. 

"ANCSA's legislative history makes clear that Congress contemplated that land granted 

under ANCSA would be put primarily to three uses-village expansion, subsistence, and capital 

for economic development. See H.R. Rep. 92-523 at 5, 1971 U.S.C.C.A.N. at 2195. Of these 

potential uses, Congress clearly expected economic development would be the most significant 

1 
233 

.... " Koniag, Inc. v. Koncor Forest Resource, 39 F.3d 991, 996-97 (9th Cir. 1994). In enacting 

ANILCA, Congress struck a balance between resource protection and the realization by ANCs of 

the economic development opportunities that were to be open to them as a fundamental 

element of ANCSA's settlement of aboriginal land claims. As Congressman Udall further 

explained: "I want to make clear that inclusion of these Native lands within the boundaries of 

conservation system units is not intended to affect any rights which the Corporations may have 

under this act, the Alaska Native Claims Settlement Act, or any other law, or to restrict use of 

such lands by the owning Corporations nor to subject the Native lands to regulations applicable 

to the public lands within the specific conservation system unit." 125 Cong. Rec. 9905. 

Recognizing and respecting the ANCs' ownership and access rights to ANCSA lands is 

critical to the ability of Doyon and other ANCs to pursue the economic development of their 

lands and resources for the economic and social benefit of their Alaska Native and other 

shareholders, as contemplated by ANCSA. Unfortunately, the manner in which ANILCA and 

other land management statutes are being implemented in Alaska threatens to diminish the 

value of the promises made to the Alaska Natives in ANCSA and ANILCA. 

ANILCA's Balance Must be Respected 

ANILCA was explicitly intended to strike and maintain a balance between conservation 

and development of lands in Alaska. Although the Act often is mischaracterized, including 

intentionally by interests opposed to resource use and development in Alaska, section 101(d) of 

the Act is clear in stating that the Act "provides sufficient protection for the national interest in 

the scenic, natural, cultural and environmental values on the public lands in Alaska, and at the 

same time provides adequate opportunity for satisfaction of the economic and social needs of 

the State of Alaska and its people." 16 U.S. C.§ 3101(d) (emphasis added). Accordingly, in that 

section, Congress found that "the designation and disposition of the public lands in Alaska 

pursuant to [ANILCA] ... represent a proper balance between the preservation of national 

conservation system units and those public lands necessary and appropriate for intensive use 

and disposition .... "Thus, ANILCA obviated "the need for future legislation designating new 

conservation system units, new national conservation areas, or new national recreation areas .. 

. . " The Act, along with other land management statutes, must be implemented accordingly. 

Critical to establishing and maintaining this balance is ANILCA's "no more" clause in 

section 1326. This provision, critical to passage of the Act, expressly and significantly limits the 

authority of the executive branch to establish or expand conservation areas in Alaska. Despite 

this and other provisions of ANILCA clearly intended to maintain the balance between 

conservation and development struck by the Act, through efforts to impose new administrative 

designations and restrictions, the federal land management agencies have sought to shift this 

balance in a way that diminishes the availability of lands for use and access necessary for 

economic development and social needs. 

2 
234 

Many large tracts of lands that were selected by Doyon under ANCSA, including lands 

selected for their mineral or other resource development potential, already are surrounded by 

CSUs. The Bureau of Land Management ("BLM") is in the process of revising three management 

plans for huge expanses of land in Alaska, for the Eastern Interior, Central Yukon, and Bering 

Sea/Western Interior planning areas. Although these planning areas already include various 

conservation designations pursuant to ANILCA, each of these plans proposes new 

administrative designations that would shift the balance between conservation and 

development established by ANILCA and that could impose substantial new restrictions on 

access to and use of nonfederalland and resources. 

As a result of these planning processes, even more Doyon lands could be surrounded by 

or adjacent to river segments proposed for Wild and Scenic Rivers Act ("WSRA") designation, 

lands proposed to be maintained for wilderness characteristics, or Areas of Critical 

Environmental Concern ("ACECs"). Based upon the location of Doyon's lands and the location of 

resource exploration and development activity on those lands, Doyon anticipates that it 

ultimately will need to obtain access across certain CSUs in Alaska pursuant to Title XI of ANILCA 

and across other federal, BLM-managed lands pursuant to ANILCA Section 1323(b). Further 

enveloping Doyon's lands within Wild and Scenic Rivers, lands to be maintained for wilderness 

characteristics, and/or ACECs would further complicate access to and use of Doyon lands, and 

could prevent Doyon and its shareholders from fully realizing the economic and other benefits 

that Congress intended they would enjoy as a result of ANCSA's settlement of aboriginal land 

claims. 

Recent agency and court actions threaten to further upset ANILCA's balance and to 

further diminish the value ofthe promises of ANCSA and ANILCA to Alaska Natives. Congress 

included section 103(c) of ANILCA, 16 U.S.C. § 3103(c), in order to make clear that the location 

of ANCSA lands within the boundaries of a CSU would not "restrict use of such lands by the 

owning Corporations," 125 Cong. Rec. 9905 (1979), or make them "subject to any of the laws or 

regulations that pertain to U.S. public lands" or "controlled by any of the public land laws of the 

United States," id. at 11158 (emphasis added). It did so based upon the recognition that 

regulation of such private lands would be incompatible with the economic development 

activities that Congress contemplated in ANCSA for the benefit of Alaska Natives. 

Despite the clear intent of this provision, the Ninth Circuit Sturgean v. Masica decision 

now before the U.S. Supreme Court adopts an entirely contrary interpretation and if permitted 

to stand, would allow the National Park Service ("NPS") and other land management agencies 

to enforce their regulations on ANC lands and waters within CSUs. In its brief opposing 

certiorari, the United States sought to narrow the significance of the Ninth Circuit's decision to 

the enforceability of NPS regulations on navigable waters (the actual matter in dispute) and to 

reassure the Court that the Ninth Circuit's holding would not broadly authorize regulation of 

ANC-owned lands within the boundaries of CSUs, that to do so would require a dramatic shift in 

policy "under the application of stringent criteria that the NPS has almost never invoked," and 

3 
235 

that the Native amici simply "misunderstand[] both the NPS's regulations and the decision 

below." 

Remarkably, however, mere months after making these statements, NPS published a 

proposed rule to revise its regulations governing nonfederal oil and gas activity, in which NPS 

proposed to do exactly what it said it would not-i.e., to assert jurisdiction and control over 

activities on ANCSA lands within the boundaries of a National Park System unit. Despite section 

103(c) of ANILCA, the revised regulations are proposed to apply to "all operators conducting 

non-federal oil or gas operations on lands or waters within an NPS unit, regardless of the 

ownership or jurisdictional status of those lands or waters." 80 Fed. Reg. 65571, 65591 (Oct. 26, 

2015). Citing the Ninth Circuit decision, the proposed rule states: 

We also note that because these regulations are generally applicable to NPS 

units nationwide and to nonfederal interests in those units, they are not 

"applicable solely to public lands within [units established under ANILCA]," and 

thus are not affected by section 103(c) of ANILCA. See Sturgeon v. Masica, 768 

F.3d 1066, 1077-78 (9'h Cir. 2014). 

80 Fed. Reg. at 65573. It appears, therefore, that NPS fully intends, for the first time, to exercise 

authority over nonfederal oil and gas activities on Alaska Native lands within the exterior 

boundaries of National Park System units in Alaska. 

These regulations can have a significant negative impact on the achievement of the 

economic development purposes of ANCSA. As but one example, Doyon owns approximately 

206,000 acres (320 square miles) of ANCSA lands in the Kandik Basin area of the Yukon-Charley 

Rivers National Preserve that Doyon selected because of its potential for the discovery of oil 

and gas. Doyon selected and was conveyed this land before enactment of ANILCA. Under the 

NPS regulations and the Ninth Circuit's decision, Doyon's development of these lands will now 

be subject to NPS permission. 

The potential absurdities created by the Ninth Circuit's decision are also deeply 

concerning. If the decision is allowed to stand, activities on private in holdings within the 

exterior boundaries of CSUs in Alaska would be subject to federal regulation by federal land 

management agencies under their general nationwide requirements, but not to local 

regulations adopted specifically to reflect the realities of the unique statutory framework 

governing land and resource use and access in Alaska. Moreover, agencies could render section 

103(c) meaningless simply by adopting nationwide regulations. 

In sum, section 103(c) is being interpreted in a manner that diminishes the promise 

made to Alaska Natives in ANCSA that ANCSA lands would be available for economic 

development and other purposes, for the benefit of Alaska Natives. Congress and the courts 

should not permit the erosion of the value of the ANCSA settlement by allowing federal 

agencies authority to control the use of ANCSA lands in a manner that so directly contradicts 

the intent of ANSCA and ANILCA. 

4 
236 

ANILCA's Access Provisions Must be Implemented in a Manner that Allows ANCs to Realize 

the Economic and Other Values of Their Lands and Resources 

Congress enacted ANILCA to protect Alaska's natural resources and ensure economic 

development opportunities for Alaska Natives and other private landowners in the State. 

ANILCA included unique and specific provisions to guarantee that such landowners would have 

reasonable access to in holdings within or effectively surrounded by one or more CSUs, national 

recreation areas, national conservation areas, or areas of public lands designated as wilderness 

study so that they could make economic and other use of their property. For instance, section 

1110(b)-intended to ensure that in holders not be denied the economic benefit of their land 

ownership-guarantees "adequate and feasible" access to privately-owned lands (i.e., 

in holdings) within or effectively surrounded by CSUs. Section 1111 provides for temporary 

access across CSUs for private land owners for exploratory or similar purposes. Title XI of the 

Act further established a specific set of procedures for federal agencies to follow when 

processing applications for "transportation or utility systems" in Alaska when any portion of the 

route of the system will be within a CSU. Recognizing that "the existing authorities to approve 

or disapprove applications for transportation and utility systems through public lands in Alaska 

are diverse, dissimilar, and, in some cases, absent," Congress sought to establish in ANILCA "a 

single comprehensive statutory authority for the approval or disapproval of applications for 

such systems." 16 U.S.C. § 3161. Finally, Section 1323(b) guarantees access to in holdings across 

general (non-CSU) BLM-managed public lands. Each ofthese access provisions is critical to 

ensuring that ANCs have the opportunity to realize the economic benefit of the land interests 

they obtained pursuant to ANCSA in order to provide for their shareholders. 

ANILCA's access provisions must be implemented in a manner that ensures and provides 

meaningful access, as intended by Congress. Unfortunately, it is not uncommon for federal 

agencies to fail to even note the existence of these provisions when they propose to take action 

that could impact access to private lands in Alaska. Federal agencies, recently supported by 

certain court decisions, are considering or have taken other actions-through land 

management planning processes and extension of regulatory restrictions to private lands-that 

could compromise access to private in holdings in Alaska. Federal agencies should not be 

permitted to effectively block or unreasonably restrict access to inholdings held by Doyon and 

other private landowners-whether through land management decisions, the application of 

regulations that should be applicable only to federal lands, or otherwise. 

Appropriate Implementation Requires Both Understanding and Consultation 

Appropriate implementation of ANILCA requires both a consistent and accurate 

understanding of the Act and its context, as well as meaningful engagement with the Alaska 

Natives whose interests it was intended to protect. 

The passage of time and staffing turnovers since the enactment of ANILCA thirty-five 

years ago have contributed to a loss of institutional knowledge that appears ever more 

5 
237 

apparent in land and resource management planning and decisionmaking processes as the 

years pass. The change in the level of understanding is deeply troubling and has come to affect 

land management and federal-Native landowner relationships in significantly negative ways. 

More and more, the unique statutory framework created under ANCSA and ANILCA is ignored 

or misunderstood by the executive branch and federal agencies in the development or 

modification of regulations and policies. Training and guidance are essential to making sure 

that the policies and obligations that ANILCA established are fully and consistently adhered to 

as federal agencies engage in these activities. 

Meaningful consultation with ANCs also is essential, but often lacking. Unfortunately, in 

addressing their consultation obligations, federal agencies often either disregard their specific 

consultation obligations to ANCs, or offer opportunities that seem more like a "check the box" 

effort than opportunities for meaningful sharing and consideration of ideas and concerns. In 

Executive Order {"EO") 13175, Consultation and Coordination with Indian Tribal Governments, 

the President required federal agencies to implement an effective process to ensure 

meaningful and timely consultation with tribes during the development of policies or projects 

that may have tribal implications. Such consultation is intended to assure meaningful tribal 

participation in planning and decision making processes for actions with the potential to affect 

tribal interests. Although EO 13175 itself applies specifically to federally-recognized tribal 

governments, pursuant to Pub. L. 108-199, 118 Stat. 452, as amended by Pub. L. 108-447, 118 

Stat. 3267, Congress specifically extended these obligations to Alaska Native corporations, 

requiring the Office of Management and Budget {"OMB") and all Federal agencies to "consult 

with Alaska Native corporations on the same basis as Indian tribes under Executive Order No. 

13175." 

In accordance with this mandate, the Department of the Interior's 2012 Policy on 

Consultation with ANCSA Corporations purports to "recognize[] and respect[] the distinct, 

unique, and individual cultural traditions and values of Alaska Native peoples and the statutory 

relationship between ANCSA Corporations and the Federal Government." In recognition that 

"Federal consultation conducted in a meaningful and good-faith manner further facilitates 

effective Department operations and governance practices," it further commits that the 

Department will "identify consulting parties early in the planning process and provide a 

meaningful opportunity for ANCSA Corporations to participate in the consultation policy." 

However, in reality, such a meaningful opportunity often is not provided. 

In addition to local and regional actions, even Federal agency actions proposed or taken 

on a nationwide basis can and do have a substantial and direct impact on ANCs and other 

Alaska Native entities. For instance, NPS's and the U.S. Fish and Wildlife Service's ("USFWS's") 

rule making processes relating to nonfederal oil and gas development within the boundaries of 

National Park units and on lands and waters of the National Wildlife Refuge System raise 

important issues with regard to oil and gas development on lands conveyed to ANCs pursuant 

to ANCSA. Among other things, USFWS policies and actions relating to management of the 

6 
238 

National Wildlife Refuge System, implementation of the Endangered Species Act, and other 

matters within the purview of the USFWS also can and do impact the interests of ANCs and 

other Alaska Native entities. 

Doyon cannot overstate the importance of federal agencies' obligation to consult with 

ANCs under Executive Order 13175, as specifically extended to the ANCs by Congress. It is 

absolutely critical that ANCs be provided the opportunity to meaningfully participate in the 

development and implementation of policies that could impact our ability to fulfill the purposes 

for which we were established under ANCSA and to protect and advance the economic, social, 

and cultural interests of our shareholders-and that agencies provide such an opportunity 

when an ANC requests it. Such consultation must happen as a matter of course, preferably at 

the initiative of the agencies but also whenever requested by tribes and ANCs. It must happen 

early on in the process, when there is still an opportunity to incorporate ideas and/or address 

concerns. And it must be more than a one-way notification and briefing by agencies. 

Conclusion 

Thank you for the opportunity to provide testimony for the record before this hearing. 

The implementation of ANILCA, along with the other statutes that govern land and resource use 

and management in Alaska, is of critical importance to Doyon and the other ANCs. 

Implementation of the Act in accordance with its full stated purpose will help enable Doyon and 

the other ANCs to promote economic growth and development in Alaska and to meet the 

economic and social needs of the State of Alaska and its people. We appreciate the 

Committee's efforts to bring attention to these important issues, and we would be pleased to 

address any questions or follow-up that the Members of the Committee may have. 

7 
239 

Fmiymile Mining District 

P 0 Box 4 

Chicken, Alaska 99732 

November 30, 2015 

Honorable Senator Lisa Murkowski, 

RE: Fortymile Mining District testimony before the Committee on Energy and Natural 

Resources on the implementation ANILCA. 

The Fortymile Mining District submits the following testimony on the implementation 

of ANILCA for the Committee on Energy and Natural Resources. 

The Fortymile Mining District believes that the Bureau of Land Management (BLM) is 

managing Federal lands in the District contrary to the specific intent of ANILCA. 

BLM has implemented policy, or intends to adopt policy, that is in direct violation to 

ANILCA. The following are a few examples of ANILCA violations; 

Management plans: 

ANILCA required Federal land managers to develop a detailed Development and 

Management Plan for EACH CSU created by ANILCA. 

The Fortymile River Management Plan was created on this direction. This plan was the 

basis for miners in the Fortymile Mining District to decide whether or not, to invest 

their time and money developing mineral property. (BLM has yet to fully recognize, and 

implement this current plan). 

BLM has moved to replace our existing Management plan and to create a new plan that 

would cover the entire Eastern Interior of Alaska! 

The Fortymile Mining District has strongly opposed this concept, and has had many 

meetings on all levels, including a meeting on May 29, 2015 in Chicken, AK with the BLM 

Alaska State Director, Mr. Bud Cribley, and National Director of BLM Mr. Neil Kornze. 

They seemed to care little that this proposed plan is contrary to and a direct violation 

of existing law. (ANILCA). 

The Fortymile Mining District believes that Congress must insist that BLM follow the 

law, and leave in place our current Management Plan that was required by ANILCA. 
240 

We have asked BLM repeatedly to show cause for replacing the existing plan, yet BLM 

has not been able to do so. The District has offered and will work with BLM to make any 

modifications to our existing, original plan, in any areas shown to need modification. 

PRIOR EXISTING RIGHTS; 

The Bureau of Land Management is still ignoring ANILCA's requirement that the 

withdrawals associated with ANILCA are SUBJECT TO VALID EXISTING RIGHTS. 

_Under the mining laws, a mineral claim that has a discovery (prudent man test) and has 

been staked and recorded according to law, is a perfected mining claim and the owner of 

such a claim prior to ANILCA has PRIOR VALID EXISTING RIGHTS. 

BLM's position is that unless they conduct a mineral exam or validity exam, as in a miner 

applying to patent, or the Government seeking to contest the claims, that 

there are no prior valid existing rights. We believe this is incorrect and shows BLM has 

very limited knowledge of mining law, and no regard for ANILCA. 

Miners in the Fortymile Mining District have been denied our prior valid existing rights. 

We continue to be told we are part of any withdrawal. This position by BLM has led to 

many compliance issues, hardships and mismanagement by the agency! 

Once again, the District believes Congress must force the Bureau of Land Management 

to follow existing law. Forbid them from setting a policy based on BLM's redefining the 

requirements and allow us our Prior Existing Rights according to law. 

Sincerely, 

Dick Hammond- President 

Fortymile Mining District- Alaska 

moving t<n-mrds the f'umrc while helping to 

conummities., aud our livdihood as miners. 
241 

Please add my comments to the Committee Hearing on the Alaska 

National Interest Lands Conservation Act. 

My name is Wayne Heimer. My address is 1098 Chena Pump Road, 

Fairbanks, Alaska 99709. I have lived in Alaska for 48 years. This means 

I was here prior to oil discovery/development, ANCSA, and ANILCA. My 

career work was in Dall sheep for the Alaska Department of Fish and 

Game. Dall sheep habitat was at the center of the ANILCA negotiations, 

so I was thrust into that issue from it's very beginning. I spent the last five 

years of my 25-year career at ADF&G involved in the dispute over wildlife 

management between the State of Alaska and the Department of the 

Interior. 

Here's what I have to say today: 

1. ANILCA began as House Resolution #39. That resolution included a 

race-based preference for Alaska Natives. When it got to the Senate, 

Alaska's senior senator, Ted Stevens, noted it was 1969, and that racebased preference was unacceptable. "Race" was replaced with 

"residence." Of course, "preference" is the lighter side of "discrimination;" 

and "residence" is no less discriminatory than "race." Reference to the civil 

rights statement on any federal document will highlight this hypocrisy. 

2. Nevertheless, even though the State of Alaska had established a 

"subsistence preference" (ANILCA referred to it as a necessary "law of 

general applicability') to forestall federal intervention in fisheries and 

wildlife management; the state law was equivalent to ANILCA Title VIII) the 

feds intervened. 
242 

3. Alaska's subsistence law was challenged, and found, by the Alaska 

Supreme Court to define all Alaskans as "subsistence users." When this 

happened, the feds insisted that "residence" (rather than race) HAD to a 

be the litmus test of "general applicability." When they couldn't bully 

Alaska's legislature into changing our Alaska Constitution, the feds said 

they were "forced" to take over management of subsistence on federal 

lands, and some waters. This was a functionally unnecessary construct. 

3. The feds did this via the federal rulemaking process, which gives the 

greatest unchecked power to federal bureaucrats, and essentially "freezes" 

the Alaska public out of decisions made by federal system insiders. 

4. Using federal rulemaking, the feds have usurped management of 

Alaska's fisheries and wildlife. 

5. Their latest gambit is to claim that the 1 00-year-old National Park 

Service Organic Act gives them powers in Alaska which were clearly 

revoked by ANILCA. 

6. This has got to stop. 

I suggest that one solution would be to amend the Environmental Policy 

Act to require an "impact statement" (because federal actions via 

rulemaking have significant impacts in Alaska) prior to publication of any 

final rule in the Congressional Record. The present 

"compendium/comment/publication" process is simply inadequate to keep 

silliness like the "organic act" baloney from causing more trouble than it's 

worth. 

Attached is a paper I wrote on the subject for a state-sponsored 

conference on this silliness a couple years ago. Please add it to the 

comments. 

Thank you, and best regards of the season, 

Wayne E. Heimer 

1098 Chena Pump Road 

Fairbanks, Alaska 99709 
243 

CACFA SUMMIT (4th Try) 

FEDERAL OVERREACH IN RESOURCE MANAGEMENT IN ALASKA 2013: 

SUGGESTIONS FROM THE OUTSIDE 

by 

Wayne E. Heimer 

for the ALASKA WILDLIFE CONSERVATION ASSOCIATION 

updated April2014 

I have some difficult things to say to my friends and fellow Alaskans. My perspective is that of a 

wildlife manager who "saw it coming," participated in it professionally, experienced it 

personally as both a "preferred" and "discriminated against" user, and has been watching, 

thinking, and praying about it from the private sector for 16 years. I shall try not to be harsh, but 

some words I have may be hard to hear. 

We're in a mess. We're in this mess because we have a dual management system where the 

coerced partners do not agree on the definition of management. Furthermore, the federal side of 

this duality has abandoned the traditional functional state/federal partnership which has served 

wildlife restoration so well for most of a century. If we are to reestablish the traditional, 

constitutionally-appropriate relationship between Alaskans and the federal government with 

respect to wildlife (and other natural resource) management, we'll have to change the way we've 

been thinking for the last thirty three years. 

The traditional relationship between the states, the people, and the federal government was 

inferred from simple reading of the 141

" Amendment to the US Constitution. Plainly read, the 

141

" Amendment says that powers not specifically granted to the federal government by the US 

Constitution AS WELL AS powers the US Constitution does not specifically withholdfrom the 

states belong to the States and the people. The power to manage wildlife was never specifically 

granted to the federal government by the US Constitution. Neither was it ever constitutionally 

withheld from the state. Consequently, it must remain a state prerogative despite congressional 

actions to appropriate it to the federal government. 

As you have heard, in Alaska's statehood agreement, management offish and wildlife was 

specifically granted to Alaska as a responsibility of statehood. Reinvigoration of this tradition 

will require federal appreciation of and assent to the fact that Alaska owns and must manage 

Alaska's! Alaskans' wildlife wherever it happens to be. Traditionally, when wildlife happened to 

be standing on federal lands, the feds managed the habitat, but the wildlife management 

prerogatives (including allocation of harvests) remained with the state. That model persisted 

throughout the United States from the invention of wildlife management as funded and practiced 

in the USA till about 30 years ago. It was a marvelous success. 

The functional relationship between the states and the federal government began to erode with 

the advent of the "environmental movement," which established a beachhead for the viewpoint 

that any intervention in (or management of) "Nature" was bad. "Management," whether in the 

fields of business, finance, human resources, or wildlife, always involves altering established 
244 

situations to produce pre-defined benefits. Where Alaska wildlife is concerned, this means 

that managers are statutorily directed to "manage, maintain, protect, enhance, and expand 

wildlife resources in the interests of the economy and general well-being of the state (paraphrase 

from AS 16. 05.020(2) --Functions of the ADF&G Commissioner). Those are Alaska's predefined benefits. The politically influential environmentalist philosophy is in obvious conflict 

with the Alaska's Constitutional and Statutory mandates to manage. 

The reason we are here trying to cope with Federal overreach is that 33 years ago Congress, 

presumably acting as the agent of the American people, passed ANILCA Historically, ANILCA 

was an outgrowth of ANCSA The short ANCSA pre-history is that not everyone thought 

building the pipeline as quickly as possible was a good idea. "Environmental preservationists," 

opposed it "on principle," and Alaska Native interests came to see it as a way to leverage 

settlement of their long-languishing aboriginal land claims. In the end, the "environmentalists" 

aligned themselves with Alaska Native Interests, to hold up oil development till both sides got 

what they wanted. Because of their convergent interests, environmental protection interests got 

"(d)(2)" into ANCSA, and Alaska Native interests got Title VITI into ANILCA That's the 

"subsistence section" of ANILCA where I allege the federal overreach into the state's 

right/responsibility to manage wildlife began. 

ANILCA in general is a land designation law. It says which lands shall go into federal 

conservation system units, and offers a rationale (valid or not) for each unit "Subsistence" is 

generally included. Additionally, there's Title VIII, the "federal subsistence law." As 

interpreted by the overreach-prone feds, this section of ANILCA wrested Alaska's duty to 

provide (i.e. to actually perfonn management so allocation becomes possible) for the pre-defined 

benefit of the economy and general well being of Alaskans, the production and provision to 

harvest wild food, from Alaska, and vested the allocation function in the federal government. 

The rationale for this change was the Alaska Native charge that the state had not provided for 

"subsistence." 

The federal justification for this usurpation of state responsibility ultimately came down to the 

federal insistence that Alaska provide a preference for "rural residents" as a special class. This 

was an entirely "letter of the law" semantic rationalization by the feds, and really had nothing to 

do with providing food to Native and non-Native rural Alaskans. In a game of bureaucratic 

"chicken," the feds tried to force Alaska to alter its constitution to allow discrimination on the 

basis of residence location. Alaska refused to change to a discrimination-allowing constitution, 

so the feds said they "had to take over subsistence management on the federal public lands in 

Alaska." However, the feds confused "allocation" with "management" The two are not the 

same. "Management" is what you do to provide a harvestable surplus to allocate. Allocation is 

the end product of successful management 

Even as interpreted by the feds, ANILCA did not totally remove wildlife management from 

Alaska, only allocation (which the feds confused with management) for rural residents 

(subsistence) on federal lands. Hence, a "dual management" system was created. The 

unwilling partners in this dual management system have always had opposite views of what 

"management" actually is. This disagreement was clear from the outset, but the concept upon 

which "dual management" was developed was that the State and the Feds could manage 
245 

cooperatively to allocate subsistence harvests until the courts sorted out the legalities of 

ownership and management responsibility. The assumption that "the courts would settle it" was 

incorrect. 

Administrations which had brokered or exploited the dual management system for political 

purposes never quite got around to taking the issue to the courts. About a dozen years after 

ANILCA passage, the Hickel administration did so. At the outset of this litigation, the basic 

assumption was that an issue as fundamental as Congress granting the federal government 

powers reserved for the States and the people by the US Constitution would ultimately be 

resolved by the US Supreme Court. That never happened because newly-elected Governor Tony 

Knowles withdrew the Hickel suit with prejudice (thus keeping a camp,aign promise to Alaska 

Native interests) just two days before it was to be argued before the 9

11 Circuit Court of Appeals. 

[Author's Note: Govemors may take constitutional issues directly to the US Supreme Court. 

Govemor Knowles did this once over Alaska· s title to offshore waters related to the Tong ass 

National Forest. I presume any Alaska Governor could do the same with the issues of federal 

overreach regarding wildlife management as per the earlier discussion of the 14'h Amendment. 

WEHJ 

We've been living with dual management ever since, and it isn't working. Even given the 

ceremonial mechanics of the dual management process, the promise of actual subsistence 

benefits to AlaskaN atives has been broken. In confusing allocation with actual management, the 

federal system has provided little to nothing that actually maintains practical sustenance for rural 

residents. In general, all the feds have provided is "peace of mind" by offering longer seasons 

(sometimes at the risk of population welfare), more liberal methods and means (where they did 

not conflict with park or refuge "values"), and larger bag limits (also at the risk of population 

welfare). The feds have done nothing to actually manage (i.e. maintain, protect, enhance, or 

expand) the populations from which they allocate, sometimes foolishly, "harvest opportunities" 

to federally-recognized users. 

Exclusion of"non rural" Alaskans through application of a changing, a mongrel definition of 

what a "rural resident" is (a primarily paper preference) is about all the federal program has 

achieved. The feds have orchestrated this "paper preference" through the machinations of their 

Federal Subsistence Board, a collection of upper level federal bureaucrats who are apparently 

more interested in agency policies, "values," and land control than in actual provision of wild 

foods for rural residents. The fiscal costs (which benefit the Alaskan economy significantly 

because lots of federal employees work in the subsistence industry) have been immense, but the 

actual benefits to subsistence users have been insignificant. 

Sadly, the most significant product of dual management for subsistence, the vehicle for federal 

overreach, has been division among Alaskans. I suggest this federal interruption of the primal 

relationship of both Native and non-Native Alaskans with land is a fundamental factor in the 

"rural-urban divide" we hear worried over but never resolved by conventional measures. 

Thus, Alaskans have a choice. We can either continue with the presently existing dysfunctional, 

antagonistic relationship, and ineffectual paper preference purporting to provide an ethereal 

benefit to "rural residents," OR we can take the steps necessary to reestablish the traditionally 
246 

harmonious and effective management relationship between Alaskans and the land in which they 

live. This will require getting the feds out of wild resource management. If, as I argue, federal 

division of Alaskans by residence is a significant cause of dishannony, the solution would seem 

to be restoration of the traditional constitutional/statutory relationship between resource 

owner/managers and the habitat-owning feds. If the feds would re-assume their traditional role 

with respect to the state's management prerogatives, there could be hope for functional 

interagency cooperation. There would also be hope for unity among Alaskans. Unfortunately, it 

appears the feds will have to be forced tore-embrace their traditional functional role. We have 

to start somewhere. 

IF Alaskans should decide against a divided citizenry resulting from dual management, 

where some have a perceived preference which amounts to real discrimination against others, we 

must change our existing thinking. Realistically, we must understand several things: 

Item #1: The issue will never be decided in Alaska's favor in Federal District or Appeals Courts 

(see Appendix B for details). 

Item #2: This means Alaska will have to go for the legislative fix. (see Appendix Bfor details) 

Item #3: We all realize this legislative repair will never happen unless Alaskan Native interests 

support it (see Appendix Bfor details). 

Item #4: It is highly unlikely the federal government will ever grant full tribal sovereignty to 

Alaskan Natives. The federal land managers won't even recognize state sovereignty as described 

in the US Constitution. 

In Summary: Our opportunities for legislative relief fall squarely on Alaska's congressional 

delegation. That is (by order of seniority), Don Young, Lisa Murkowski, and Mark Begich will 

have to make this happen or nothing will change. There are, however, several things which we 

can do independent of the congressional delegation. 

SUGGESTIONS FOR SOLUTIONS 

FOR ALASKA'S CONGRESSIONAL DELEGATION: 

1. Introduce clarifying legislation that reestablishes and codifies the authority for resident 

wildlife management with Alaska. It wouldn't hurt ifthiswere done nationwide, but Alaska is 

our interest here. 

2. De-fund the federal agency Landscape Land Conservation program which is creeping 

into Alaska via ADF&G. This program, which allows federal "management" of non-federal 

lands, may have a place in eco-fractured states, but Alaska is the last place it is actually needed. 
247 

3. De-fund wasteful federal agency spending which establishes elaborate visitor facilities 

and headquarters buildings where there aren't really significant visitors. National Parks where 

there are visitors could use the money rather than building an infrastructure to support visitors to 

Alaska's remote parks that may never occur. This is a luxury item in government we cannot 

afford at this time. 

4. Don't be afraid to make specific relief amendments relative to federal overreach in 

Alaska. Sen. Stevens always said we can't do this, but ANILCA has undergone many such 

special interest amendments in the past. How about a special interest amendment for all 

Alaskans? 

TO GOVERNOR PARNELL: 

Exercise your privilege as Alaska's Governor to take the constitutional issues relating to 

federal overreach directly to the US Supreme Court. Tony Knowles did it one time. We may 

not need "the perfect case" to shepherd through the federal courts with all the hazards that lie 

with them. The constitutional issue may be sufficient. Please look into this option and get back 

to Alaskans with the result. (see APPENDIX Afbr details) 

TO THE ALAKSA LEG ISLA TlJRE: 

1. Reclaim and assert your policy making authority. (~ee APPENDIX Bfor detail>) 

2. Instruct our congressional delegation to reestablish a functional relationship between 

the State of Alaska federal agencies. The traditional relationship defined earlier worked well 

for a long time. 

3. Introduce legislation to establish co-equal management with Alaska Native tribes on 

Corporation lands. (>ee APPENDIX B for details) 

4. Readjust the mission of the ADF&G Subsistence Division you created it in an unsuccessful 

effort to preclude federal takeover of subsistence management. (~ee APPENDIX B for detai/.1) 

5. Consider litigation with the feds to reclaim revenues lost to the state through federal 

overreach. 

TO ALASKA NA TJVE INTERESTS: 

PLEASE UNDERSTAND YOU HOLD THE VETO POWER OVER REINING IN 

FEDERAL OVERREACH IN WILDLIFE MANAGEMENT. SO: 

1. Please consider the possibility that the feds are not your friends. If ceremonial 

recognition of the Alaska Native lifestyle is more important than actual food gathering, the 

Federal Subsistence Board is a logical choice. However, if Alaska Natives want more than 

"opportunity" to live off the land, actual management is necessary. The feds are not willing to 
248 

actually take a significant management action to increase food production. (see Unimak Island 

and recall the A VCP recommendation for predator control on federal lands and what that request 

produced) (.~ee APPENDIX Dfor detail\) 

2. Be open to supporting suggestions to the Alaska Legislature (Appendix B). 

3. Consider the benefits of trading co-equal sovereignty (witb respect to wildlife 

management in all its forms on Corporation lands) for elimination of the federallyrecognized rural resident preference on federal lands. (.1·ee APPENDIX Cit 3) 

TO THE ALASKA DEPARTMENT OF FISH AND GAME: 

1. Stop cooperating with the feds. (see APPENDIX B for details) 

2. Open your minds to consideration and support of suggestions to Alaska Legislature (see 

APPENDIX Cfor detai/.1) 

3. Tell the Federal Subsistence Board "Thanks, but no thanks." Share that perspective 

witb the Alaska Board of Game. 

FOR STATE'S RIGHTS AND "EQUALITY" ADVOCATES: 

1. Open your minds to the realization the federal courts won't provide relief (AppendL'C B 

#2) 

2. Open your minds to exchanging co-equal management on Alaska Native lands for 

equality of access on federal lands. (.~ee APPEND IX C ii3) 

3. Open your minds to consideration and support of suggestions to Alaska Legislature (see 

APPENDIX B for detaiL1) 

FORCACFA: 

l. Stop politely responding to the federal agency bureaucrats who are ruining our lives and 

"playing their game." Dealing with the NPS "compendium process," the federal agency land 

plans, and all the other things which consume your time is approximately as etiective as the 

state's longer-term attempts to reason with the Federal Subsistence Board. Overall, our success 

in making changes is less than 5%, and significant changes are virtually unheard of. Ritual 

combat with the federal "overreachers" has gotten us virtually nowhere in three decades. 

2. Continue to listen to Alaskans, while expanding your services more aggressively. There is a 

lot to be said, but Alaskans old enough to know the score are wearing out. Involve Native 

Interests in projects like this one in the future. 

3. Be more assertive in offering direct suggestions to the legislature. 
249 

4. Be open to evaluating and forwarding new approaches to the federal overreach 

problem, particularly the necessary legislative fixes and "direct action" options. 

APPENDIX SERIES 

APPENDIX A: SlJGGESTION FOR GOVERNOR PARNELL: 

Exercise your privilege as Alaska's Governor to take the constitutional issues relating to federal 

overreach directly to the US Supreme Court. Tony Knowles did it one time. We may not need 

"the perfect case" to shepherd through the federal courts with all the hazards that lie with them. 

The constitutional issue may be sufficient. Please look into this option and get back to Alaskans 

with the result. 

APPENDIX B: REALITY CHECK 

Item #1: The issue of federal overreach will never be decided in Alaska's favor in Federal 

District or Appeals Courts. These courts are oriented to protect federal interests in interpretation 

offederallaw. This issue is larger than that. 

Governors may take constitutional issues directly to the US Supreme Court. 

Governor Knowles did this once over Alaska's title to offshore waters related to the Tongass 

National Forest (a commercial fishing issue). If there is any hope for a decision, the 

constitutional issue must go directly to the Supreme Court. The court's recent rejection of the 

navigable water issue (whether navigable water flowing through parks is federal public land) 

illustrates the reluctance of the court to address this issue .. I presume any Alaska Governor could 

do the same with issues larger than commercial fishing interests. 

Item #2: The legislative fix. 

When the courts will not grant relief (and the federal courts where this would have to be decided 

see things through the lens of federal statute), it is appropriate for the citizenry to demand their 

representatives provide them relief by changing the law. If Alaskans can agree to stop federal 

overreach, our Congressional delegation will have to act to put the feds in their appropriate "14tl' 

Amendment" place. That means that Don, Lisa, Mark will actually have to draft legislation 

and get it passed to solve the problem. 

This will require unusual courage because it may well result in cutting the federal 

payroll in Alaska. Hence, Don, Lisa, and Mark, will have to decide what price to 

put on healing the "rural/urban divide" created by ANILCA. 
250 

My preference is legislation that codifies the sole management 

responsibility/authority in Alaska as lying exclusively with the state. This 

would amount to an Alaska-specific amendment to ANILCA-rather like a 

Tongass/Regional Corporation land trade. 

rtem #3: Nothing will happen without Alaska Native interest support. 

I suggest that it's time Alaska Native leadership takes a critical look at federal subsistence 

management. I suggest such an analysis will reveal it has provided insuft!cient actual yield of 

food for the costs in money and Alaska Native dignity. 

Item #4: If the overreaching feds won't recognize the existing constitutional and statutory 

sovereignty of the State of Alaska, what hope is there for Native Sovereignty given the nature of 

the Alaska Native Claims Settlement Act (and the US Supreme Court decision in the Venetie 

case)? 

When a people who desire recognition as actual sovereigns are reduced to petitioning a 

bunch of federal bureaucrats (the Federal Subsistence Board) for extension of federal 

largesse for traditional practices, subjugation, not sovereignty, is the actual result. 

I respectfully suggest that if Alaska Native leadership is looking toward actual 

subsistence benefits for those they lead, the more certain bet is with the State of 

Alaska, which is mandated to produce abundant wildlife for human use. The feds 

have other "park and refuge values" which the feds have made very clear are in 

conflict with the state's responsibilities as managers, and trump even the text and 

intent of ANILCA. If you desire a recent example, look toward Unimak Island. 

APPENDIX C: SUGGESTIONS TO THE LEGISLATURE 

1. Reclaim and assert your policy-making authority. 

Alaska's Constitution (Article VUI Section l. Statement of policy) defines Alaska's policy as 

making resources maximally available for use consistent with the [Alaskan] public interest. 

Section 2. places the authority to implement this policy exclusively in the Legislative Branch of 

government. Under dual management, Alaska is constrained from asserting its management 

imperatives by cooperative agreements and memoranda of understanding with the feds. In the 

main, these agreements have been primarily executed by the Executive Branch of our 

government. Many of these agreements (which have never been reviewed or approved by the 

legislature) are contrary to our constitutionally-established policy. 

I suggest the legislature summarily abrogate all memoranda of understanding and 

cooperative agreements with federal agencies relating to management and allocation of 
251 

Alaska's wildlife. These agreements amount to "gentlemen's agreements" with folks 

who have manifestly failed to behave in a gentlemanly manner. 

Ungentlemanly behavior has recently increased through the citation of"organic 

acts" by the more progressive federal agency thinkers. These folks claim that 

protections for the State of Alaska written into ANILCA are irrelevant because of 

federal agency "organic acts." Effectively this argues that Congress can act 

outside of the US Constitution's 14111 amendment to grant powers reserved for the 

states and the people to federal bureaucracies. 

I suggest that any necessary cooperative agreements with the feds, those which will assist 

Alaska with its constitutional management responsibilities, be reviewed and reestablished 

via proper legislative mechanisms. 

2. Instruct our congressional delegation to reestablish a functional relationship with the 

federal agencies. That means to put these federal agencies in their proper functional and 

traditional place. 

Our previous congressional delegations have brought Alaska no relief from the arrogant, 

unconstitutional overreach by the federal bureaucracies. Maybe, if instructed by the legislature, 

our present delegation will find the time/courage to introduce clarifying legislation, even if they 

won't amend ANILCA other than for special economic interests (i.e. Regional Native 

Corporations). 

My recommendation is clarifying legislation that codifies the sole wildlife 

management responsibility/authority in Alaska as lying exclusively with the state. 

This would amount to Alaska-specific legislation, perhaps analogous to 

amending ANILCA-rather like a Tongass/Regional Corporation land 

trade. 

3. Introduce legislation to establish co-equal management with Alaska Native tribes on 

Native Corporation lands. 

One essential element of the understandable quest of Alaska Natives for recognition as sovereign 

has always involved management (including allocation) of wildlife on Native lands. I suggest it 

is time that the State of Alaska and the tribes cooperate to share the management/allocation 

element of sovereignty. The end result of the consistent squabble over who the manager is has 

resulted in loss of sovereignty and dignity for both the state and Alaska Natives. While we've 

wrestled over who would exercise this essential element of sovereignty, the feds have stripped it 

from both of us through the magic of federal rulemaking. 

Simply put, co-equal management with Alaska Natives on Native Corporation lands means that 

both entities participate equally in all aspects of management. Those aspects span the entire 

spectrum of management (intervention to produce a pre-defined result) from both entities 
252 

agreeing on the pre-defined benefit. This may not be simple because "subsistence" has been 

defined as much more than production of food. If there is not agreement on the pre-defined 

benefit (the goal), nothing good will happen. However, if both sides (the state and corporate 

interests) can agree on the benefit, then intervening/managing to produce it becomes possible. 

Intervention may involve everything from harvest restrictions (already possible for land owners 

via access control) to habitat manipulation and predator control. Both the state and the 

landowner will have to share equally in the expenses of intervening/managing. Once a surplus 

capable of meeting the pre-defined benefit is produced, a co-equal agreement on allocation 

(between two "sovereigns" which both have veto power) will have to be reached. Nobody will 

be allowed to harvest anything under this agreement until both cooperators (co-management is 

actually short for COOPERATIVE management) agree. 

At present, the term, "co-management" is in vogue with Alaska Natives, but the concept seems 

not to be well understood, and is so poorly defined that it is not cooperative at all. Rather it 

seems a means to exclusive management, perhaps with the feds thrown in to give advantage to 

the race-based corporate interests. 

Co-equal management on Native Lands might seem attractive to Alaska Natives, but it would be 

inequitable for the state to essentially cede that portion of its sovereignty to Regional 

Corporations without getting something in return. I suggest the reasonable trade for co-equal 

management with the state on Native Lands might be Alaska Native support for equal 

access to resources for all Alaskans on Alaska's public lands. Accomplishing this exchange 

would require action by the Alaska Legislature to enable co-equal management with private 

entities, and would also require the removal of subsistence title from ANlLCA, and abrogate the 

fluffy language ritualizing "subsistence for federally-recognized users" from the rationale of 

most federal conservation unit descriptions in ANILCA. 

4. Readjust the mission of the ADF&G Subsistence Division you created in an unsuccessful 

effort to preclude federal takeover of subsistence management. 

The Division of Subsistence grew out of Alaska's Subsistence Law. The Subsistence Division 

was established as a state advocate for subsistence users (originally matching federal 

definitions). Alaska's Subsistence law has been found inconsistent with Alaska's Constitution 

by almost every standard. At present, Alaska law says that all Alaskans qualify as subsistence 

users. The role of the Subsistence Division in providing preference to rural residents should be 

examined and appropriately updated to the times. Perhaps this Division could be profitably 

redirected as the "Co-management Division." 
253 

Submission for the record relating to the December 3rd 2015 

Committee hearing on ANILCA 

My name is David Likins. I have lived and mined on the Fortymile River 

for 43 years. 

I remember the day in the mid 70's that BLM personal floated down river, 

stopping to talk to claim owners. They were informing us that under ANILCA 

the Fortymile River had been designated as a component of the Wild and Scenic 

Rivers System. BLM went on to say that this Act wouldn't affect existing 

claims, and that the Corridor would in fact go around existing claims .. They went 

on to explain that ANILCA mandated that BLM put together a Management Plan 

for the Fortymile, and asked us if we'd like to help put the plan together. Over 

the following months we met many times with BLM, 

and offered comments, and suggestions. When the finial Fortymile River 

Management Plan was submitted to Congress we could see our input was 

incorporated into the Plan. 

Throughout the 70's and 80's there were many family mines along the 

lower Fortymile. We all saw this new Management plan as something we could 

live with, and work under. Sadly, shortly after the Plan was adopted BLM chose 

to ignore certain parts of the plan ,as it related to future and ongoing mineral 

development. Over the last three decades we have had to fight BLM to follow 

the Fortymile River Management Plan required by ANILCA. 

It should be noted that the Fortymile River was the home of the oldest 

active Mining District in interior Alaska. At the time of inclusion into the Wild 

and Scenic River system, unregulated placer mining had been on going for 95 

years. Yet the country was wild and pristine enough to meet the standards of 

the WSR Act. In fact BLM emphasized the "rich mining history" as a reason 

the Fortymile should be included in the Act. 

Today i'm the last active mine owner on the Fortymile River. I have spent 

decades fighting for the rights granted under ANILCA, the Wild and Scenic 
254 

Rivers Act, and the Alaska Statehood Act. 

BLM has proposed to do away with our ANILCA mandated Development 

and Management Plan, and replace it with a broad non specific management plan 

covering all of Eastern Interior Alaska. This is contrary to ANILCA's intent 

that each C.S.U. was to have it's own detailed Development and Management 

Plan. I view our current Fortymile River Management Plan as the 

document( contract) that i have based spending my life, and money on to develop 

my mineral property. 

Instead as originally promised, that BLM would honor our prior existing 

rights, as called for in ANILCA, and the WSRA, that the withdrawals, and 

corridors would not include prior existing claims BLM now say all Federal Mining 

claims in the Fortymile Mining District are part of the withdrawals, 

and have no prior existing rights, unless, or until the claims go through the 

mineral exam required for patent. Further BLM says the claim owner must pay 

BLM to do this work, at their estimated cost of between 50,000- 100,000 $ 

per claim. This is contrary to ANILCA's intent, and 100 years of mining law. 

Further, BLM has tied any new plans of operation, or changes in an existing plan 

to a mineral exam for patent, totally crippling the few remaining family mines 

remaining within the Fortymile Mining District. 

Having fought the fight, and witnessed the effects of an agency that 

has never honored the provisions in ANILCA, I'd say this is the last best 

chance for Congress to insist that ANILCA's intent be fulfilled. 

Respectfully Submitted, 

David Likins 

Fortymile River, Alaska 
255 

) 

King-=;.....=.....::.....=.. 

,A ·l·A·S·K A1 

City of King Cove 

P0Box37 

King Cove, AK 99612 

Testimony For ANILCA Oversight Hearing 

To the 

Senate Energy and Natural Resources Committee 

December 17,2015 

Henry Mack, Mayor, City of King Cove 

Dear Madame Chair Senator Murkowski, Ranking Member Senator Cantwell, and 

Honorable Members of the Committee: 

Thank you for this opportunity to subn1it written testimony for the record on this 

critical hearing regarding the Alaska National Interests Lands Conservation Act 

(ANILCA). 

I am Henry Mack, Mayor, of the City of King Cove, Alaska. r am an Aleut, born and 

raised in King Cove. 

l appreciate that you have created a forum where responsible discussion can take 

place about the perhaps unintended, but no less harmful, consequences of the 

ANILCA legislation. King Cove's residents have been significantly impacted by 

ANILCA, which officially designated the "wilderness lands" within the lzembek 

National Refuge. This refuge is in our backyard and surrounds our community. 

ANll..CA, because of its Izembek wilderness designation, has deprived our residents 

of sate, dependable, and reliable transportation access to the Cold Bay Airport, 

which is our prilnary access to the world. The federal government has repeatedly 

denied us a modest surface access through the refuge. Furthermore, because of 

ANILCA, the attitude of the federal government to our residents has alternated 

between ignoring us entirely and treating us like second-class citizens. 

First, we were the unseen and the unknown, Testimony on the original lzembek 

Refuge wilderness designation began as a result of a President Nixon Executive 

Order in the early 1970's. At that time, hearings were held in Cold Bay and 

Anchorage. Organizations with offices on the East Coast and West Coast were aU 

asked to provide input on the creation of a wilderness area in our back yard. But 

there was not a single outreach effort to those whose lives here in King Cove were 

most directly affected by the decision. Whatever the explanation, it can't be because 
256 

we were hard to find. We've been an established, organized communityl of several 

hundred people since our founding in 1911. 

Concurrent to the wilderness debate taking place without us, we were constructing 

our first gravel airstrip, located in a valley notorious for cross·winds, but the best 

site we could find in our topography. .Prior to its construction, we were primarily a 

road-less town2. But the runway's location, five miles outside of town, motivated us 

to plan and construct a road system that could accommodate these changes. And 

always thinking long term} in 1976 the city passed its first resolution making pursuit 

of a road to Cold Bay a priority for the community. 

lt was also in 1971 when the Alaska Native Claims Settlement Act passed. It came 

with deadlines by which land se.lections had to be made by King Cove's tr.lba! 

leaders. Had we known about the consequences of the wilderness designation at 

that time, had it been explained to us that without a carve-out in advance of the 

designation, we would need an act of Congress to get a road. Had this been known to 

our leaders we would have certainly tailored our selections to include a route for 

the road. But we didn't know. 

Then, when ANILCA was signed into law, leaders in King Cove were still largely 

unaware of its implications for our transportation plans. Alarms starting going off 

for us, when shortly after ANILCA's passage, residents returned from hunting trips 

to report that their decades-old hunting cabins, long relied upon for shelter} were 

discovered burned to the ground. Later, we learned that it was USFW&S personnel 

who had traversed the refuge3, burning cabins wherever they found them, with no 

courtesy notice to the users, much less an obligation. Such acts of violent disrespect 

are difficult to forgive. 

It was shortly after ANILCA was passed, when people started dying in plane crashes, 

some of those losses in an effort to get an injured person quickly out of town, which 

we recognized that the road must be pursued with a new vengeance. Transformed 

from a community priority to a matter of life and death, we resolved to find a way to 

amend the law or create an exception. 

The result has been a thirty-plus year campaign to change the mind of any public 

official who would listen as we pleaded for the right to medevac our slck and injured 

1Jn contrast, Cold Bay ls a community that came to be because of the airport and W!lU!d almost 

certainly cease to exist without it. Pupulatlon as of the Z010 census was 100. lly contrast, King Cove's 

population was 938. 

2 Based on residents' experience watching roads go ill during the war years, it was completely 

plausible to us that eventually, when circumstances warranted it and we had the resources, that we would be 

able to add on to existing infrastructure and get road to Cold Bay. 

3 Wilen contacted, USFW&S staff claimed that these cabins were ont allow..d under the terms nftl!e 

leglslatinn but that is not factttal. 'l'lui law specifically provides a right for indigenous people to putsue their 

subsistence lll'e$tyl!l, to include the use to the cabins for that purpose. A part of our hlstmy Is gone forever. 

2 
257 

to the Cold Bay Airport, where flights land and take off as scheduled more than 95% 

of the time. 

Members of this committee know most of what came next. You know there was a 

2009 Act of Congress, years of getting dragged through a very biased NEPA/EIS 

struggle, thousands of acres of our land on offer to the Department of Interior for 

new wilderness land • all in exchange for about 200 acres to construct a single-lane 

gravel road of 9 miles. You know the final blow came almost two years ago, on 

December 23, 2013 when Interior Secretary Jewell determined that the Izembek 

land exchange was not in the public interest. 

Since then we have suffered through 37 emergency medevacs, including 11 that 

required assistance from the US Coast Guard. While it is outside the scope of their 

primary mission, If they can land, the Coast Guard show up for us, but at a risk to 

both their pilot and patient. We want to do better by both of them. 

Whether the government's intention with ANILCA was to treat us like second-class 

citizens or we were subjected to a bungled public process, what does it matter, if the 

result to us is the same? In the convergence of events that bring us to this moment, 

passage of ANILCA primary among them, we are still left without a viable 

transportation corridor to an all-weather airport that Aleut labor helped build. 

We have always worked with the Department of the Interior in good faith, hoping 

our history with this legislation, in combination with this most generous land 

exchange offer, would certainly lead to a win-win outcome. Events have shown us to 

be wrong. We are persuaded that nothing we say or do is going to change Secretary 

Jewell's mind in this matter. 

We need Congress to act. Congress must pass a bill to authorize our lifesaving road 

without delay. Our lives depend on it 

We also thank Alaska Governor Bill Walker for his staunch support for our issue as 

evidenced by his in-person testimony before this committee. 

We are also deeply grateful to you Senator Murkowski and our entire Alaska 

Delegation for all of your continued support of our efforts to get a road. You are 

years into this process with us now, Madame Chair, and your tenacity and 

determination on our behalf are what keep us going on days when we are feeling 

worn down. We readily admit to having those days. 

It is hard to keep faith with a government that has treated us like second-class 

citizens, when they bother to acknowledge us at all. It is difficult to negotiate with 

environmental activists who worry the Refuge will be spoiled by the road but refuse 

entirely, to acknowledge how the lzembek, described as the crown jewel of the 

wilderness system, could exist were it not for the First Alaskans who delivered it, 

unspoiled, into the twenty-first century. 

3 
258 

I am of this place. J don't question that I belong to this land. If wilderness is a place 

where man has not left his mark, then Aleuts are the graduate students of 

wilderness study. Because while it: may be a legal term as defined by legislation, for 

my people it is a way of life. All we ask is that Congress recognizes this road as a 

matter of safety, health, and quality-of-life and responds with speed and 

compassion. 

Thank you for listening. 

Respectfully submitted, 

Henry Mack 

Mayor, City of King Cove 

4 
259 

Statement of.J oan Frankevich, 

Program Manager, Alaska Regional Office 

National Parks Conservation Association 

To Be Submitted for the Record 

For the Senate Energy and Natural Resources Committee 

Hearing on the Alaska National Interest Lands Conservation Act (ANILCA) of 1980 

December 3, 2015 

Chairwoman Murkowski, Ranking Member Cantwell and members of the committee, on behalf of 

the National Parks Conservation Association's (NPCA) more than one million members and 

supporters across the country, including over 2,000 in Alaska, I thank you for the opportunity to 

submit testimony in regard to this hearing on the implementation of the Alaska National Interest 

Lands Conservation Act (ANILCA). Founded in 1919, NPCA is the leading, independent, private 

citizen voice in support of promoting, protecting and enhancing America's national parks for present 

and future generations. 

I am Joan Frankevich, Program Managerfor the Alaska Regional Office of the National Parks 

Conservation Association (NPCA) and have been a resident of Alaska for over 25 years. I am proud 

of the outstanding natural and cultural resources ANILCA has protected and enjoy them often with 

my family, friends, and out-of-state visitors. Some of my more memorable experiences include 

watching in awe as hundreds of caribou streamed past either side of my tent in Gates of the Arctic 

National Park; touring the rustic remains of the Kennecott Copper Mines in Wrangell-St. Elias 

National Park; watching whales, puffins and calving glaciers during a boat tour in Kenai Fjords 

National Park; and traveling by sled dog on the Chulitna River in Denali National Park. 

Upon its enactment in 1980, ANILCA protected over 100 million acres of America's wildest 

landscapes with the creation of national parks, national wildlife refuges and national forests. The Act 

represents a desire to preserve and manage entire ecosystems and it is considered by many to be the 

most significant land conservation measure in the history of our nation. ANILCA created: 

9 National Parks and Preserves 

6 National Monuments 

16 National Wildlife Refuges (Including the Arctic National Wildlife Refuge) 

2 National Conservation Areas 

2 National Forests (including the Tongass, our nation's largest) 

25 Wild and Scenic rivers 

35 wilderness areas (on park, refuge and forest lands) 

Alaska Regional Office 

750 W., 2nd Ave, Suite 205 1 Anchorage, AK 99501 I P 907.277.6722 I F 907-277-6723 1 

npca.org 
260 

2 

ANILCA was not simply a conservation success, it was also a carefully balanced compromise. Not one 

party got everything they wanted from ANILCA, and disagreements continue today. However, 

overall the Act is a tremendous success story, honoring ALASKA and benefitting residents, the state's 

economy, and all Americans. 

Below I highlight the terrific benefits ANILCA has provided Alaskans through the lens of our 

national parks-the economic benefits, the land use balance the Act attempts to strike, the shared 

management opportunities, and more. 

ANILCA and national parks 

ANILCA doubled the total acreage ofthe U.S. National Park System, creating 10 new national park 

units and increasing the acreage of three existing parks. These parks contain some of the most 

unique and breathtaking lands on earth-from glaciers and high snowy peaks, to valleys filled with 

bears, moose, caribou and other wildlife. Many parks protect entire ecosystems with a full 

complement of native plants and animals that is rarely found outside of the state. Recreation and 

wildlife viewing opportunities are unsurpassed anywhere else in the world and are treasured by 

Alaskans and our visitors. 

National parks in Alaska are different 

From the time it was introduced in the U.S. House of Representatives in 1977until it was enacted in 

1980, Congress considered over a dozen versions of the ANILCA legislation. Many modifications 

were made to the bill that considered Alaska's unique situations and the desire to preserve 

traditional ways of life for residents. This resulted in many provisions not typically found in national 

parks in the lower 48 states. 

For example, of the 54 million acres of land managed by the National Park Service (NPS) in Alaska, 

the majority is open to some form of hunting: 

44 million acres (81%) is open to subsistence hunting by local rural residents 

21 million acres (39%) is open to sport hunting by all persons 

Additionally, ANILCA allows the use of motorized transportation (snowmobiles, motorboats, and 

airplanes) for access to traditional activities such as hunting, fishing, berry picking and travel to and 

from remote villages and homesites. These provisions are intended to enable rural residents to raise 

their families and live as they have for generations. It's not an easy lifestyle to choose or inherit and 

ANILCA endeavors to honor Alaska's tribes and pioneers. 

National parks in Alaska are also the same 

While national parks in Alaska have several unique provisions, it is important to note their overall 

purpose remains resource protection, and the laws governing parks nationwide (such as the Organic 

Act and the Wilderness Act) still apply to those in Alaska. For example, while ANILCA allows several 

specific uses generally not allowed in designated Wilderness, the overall tenets of the Wilderness Act 

still apply. Congress made this very clear in Section 102(13) of the Act, which states: 

"The tenns 'wilderness' and 'National Wilderness Preservation System' have the same 

meaning as when used in the Wilderness Act.'' 

Alaska Regional Office 

750 W., 2nd Ave, Suite 205 1 Anchorage, AK 99501 1 P 907.277.6722 I F 907-277-6723 1 

npca.org 
261 

Even more telling are the purpose statements described in the establishment of each area under 

ANILCA, which clearly articulate the same type of park protection principals found throughout the 

country. The following are examples of purpose statements for a few areas: 

3 

To protect habitat, and populations of, fish and wildlife including but not limited to caribou, 

moose, black and grizzly bears, wolves, and water:fowl. 

Kobuk Valley National Park 

To maintain unimpaired the scenic beauty and quality of high mountain peaks ,foothills, 

glacial systems, lakes, and streams, valleys, and coastal landscapes in their natural state. 

Wrangell-Saint Elias National Park& Preserve 

To maintain the wild and undeveloped character of the area, including opportunities for 

visitors to experience solitude. 

Gates of the Arctic National Park & Preserve 

To protect the watershed necessary for perpetuation of the red salmon fishery in Bristol 

Bay. 

Lake Clark 

To protect and interpret historical sites and events associated with the gold rush on the 

Yukon River and the geological and paleontological history and cultural prehistory of the 

area. 

Yukon-Charley Rivers National Preserve 

To protect habitat for internationally significant populations of migratory birds. 

Bering Land Bridge National Preserve 

ANILCA provides balanced land ownership 

Following Statehood in 1959 and the Alaska Native Claims Settlement Act (ANCSA) in 1971, ANILCA 

completed the major lands designations for the state. The Act is a delicately crafted compromise that 

balances the needs for development and conservation of public lands in Alaska. In addition to the 

lands managed by NPS, federal protected areas include National Wildlife Refuges, Wild & Scenic 

Rivers, and Forest Service Monuments and Wilderness areas. ANILCA calls these "Conservation 

System Units" (CSUs) and they comprise about 34% of the state. The mosaic of lands across the state 

include the following1 : 

Federal CSU s (parks, refuges, monuments & wilderness) - 125 million acres 

Other federal land (Bureau of Land Management, US Forest Service)- 95 million acres 

State land- 105 million acres 

o When the additional 60 million acres of state owned tidelands, shorelines and 

submerged lands are included, total state lands equal165 million acres, making the 

state of Alaska the second largest landowner in the United States. The state of Alaska 

owns more land than all other states combined. 

Native corporation land- 42 million acres 

Municipal and other private- 4 million acres 

1 Source: Alaska Department of N atnral Resources 

Alaska Regional Office 

750 W., 2nd Ave, Suite 205 1 Anchorage, AK 99501 1 P 907.277.6722 I F 907-277-6723 I 

npca.org 
262 

4 

While much focus is put on what isn't allowed in federal CSUs, often overlooked is the vast areas of 

the state (including other federal lands) that are open to mining, oil & gas, logging and other forms of 

development. 

National Parks are essential to Alaska's economy 

Tourism is the second largest private sector employer in Alaska, and therefore a critical component 

of Alaska's economy. An Alaska Travel Industry Association survey2 asked "Why would you want to 

visit Alaska?" and the top three answers were: 

1. to see spectacular scenery and wildlife; 

2. to see glaciers and fjords; and 

3. to view wildlife in their natural habitats. 

The number one place chosen by visitors to accomplish these goals-to see wildlife, 

scenery and glaciers -is our national parks. Alaska's national parks support a viable visitor 

industry that has long provided a strong, sustainable economic engine that will continue long into 

the future. 

Direct spending by National Park visitors 

In 2014, Alaska's national parks hosted a record number of visitors, and visitation is expected to 

grow. Statewide, 2.68 million park visitors contributed :!>1.6 billion to the state's economy and 

supported 17,000 jobs". In Denali National Park alone, visitors spent an estimated S524.3 million in 

gateway communities, which suppo1ted 6,8oo jobs. Nationwide, Denali has the third largest 

expenditure for a single park, topped only by Blue Ridge Parkway and Great Smokey Mountains. 

Statewide, NPS has about 400 permitted operators that provide visitors services. These businesses 

employ an estimated 2,100 people and their revenues are estimated to exceed Suo million. 

Most of the economic benefit from Alaska's national parks is in surrounding gateway communitieshotels, restaurants, gift shops, and activities. However, Alaska residents in general also benefit from 

a greater range of amenities supported by tourism. According to a tourism marketing study by 

Nichols Gilstrap, Inc.": 

It is obvious that the range of trails, restaurants, employment opportunities, art galleries, 

unique shopping and many other similar assets found in Alaska would not exist without an 

active tourism economy. The local population base is simply not large enough to support 

the size and scope of the state's current amenity infrastructure. 

Spending on park operations: Keeping it local 

Federal spending is extremely important to Alaska's economy. NPS in Alaska hosts a roughly $100 

million/year operation, funds primarily spent on in-state payroll and purchases. NPS employs about 

500 permanent employees, with a peak approaching 1,000 in the summer. These represent good 

paying jobs, not only in places like Anchorage and Fairbanks- but a source of year around income 

for residents of places like Copper Center, Kotzebue, Nome, Gustavus, Sitka, and Skagway. Most 

parks strive to hire local residents through the local hire provision of ANILCA, providing 

employment and economic benefit in mral communities where jobs are scarce. 

2 Source year: 2000 

3 Source: 2014 NPS Visitor Spending Effects Report, http:/ jwww.nature.nps.govjsocialscience/vse.cfm 

4 Source: Alaska State Department of Commerce, November 2000. 

Alaska Regional Office 

750 W., 2nd Ave, Suite 205 I Anchorage, AK 99501 1 P 907.277.6722 I F 907-277-6723 1 

npca.org 
263 

5 

Infrastmcture construction 

The other major economic benefit from our national parks is construction necessary for visitor 

services and to support Alaska's NPS employees. Nearly every project uses local businesses that hire 

crews of Alaskan workers. Some recent examples include: 

Wrangell-St. Elias- Kennecott Mill Stabilization 

o Twin Peaks Construction of Anchor Point, AK- $3 million 

Katmai - Barge Lands and Access Road 

o Carpenter Contracting of Delta .Junction, AK- $1.5 million 

Glacier Bay- Huna Tribal House 

o PK Builders of Ketchikan, AK- S2.9 million 

Denali -Replace Utilidor 

o GMC Contracting of Anchorage, AK- $8.6 million 

The combined impact of visitor spending, government spending on operations, and construction 

projects, plus the larger economic draw that national parks provide to a geographic area is worth 

hundreds of millions of dollars annually to Alaska's economy. National parks are vital to maximizing 

Alaska's appeal in the world tourism market. Alaska has the wildlife, glaciers, and wilderness that 

the rest of the world wants to see. And as wilderness becomes an increasingly scarce economic 

resource worldwide, Alaska will continue to see growth in the value of our parks and protected areas. 

Case Study: Seward and Kenai Fjords National Park 

The city of Seward, gateway community to Kenai Fjords National Park, provides an example of both 

the misconceptions about and benefits of ANILCA. 

1975 - Seward City Council passed a resolution condemning the formation of Kenai Fjords 

National Park 

1980- ANILCA passed; Kenai Fjords National Park was created 

1985 - Seward City Council rescinded its resolution 

By 1985 the City Council recognized that a trend had begun. There was an increasing number of 

visitors directly attributable to Kenai Fjords National Park, and these visitors benefitted the 

community. A 2001 report by the Institute of Social and Economic Research at University of Alaska 

at Anchorage states that since Kenai Fjords was created: 

... the Seward economy has expanded and strengthened . ... There is now widespread 

agreement among the residents of Seward that creation of the Kenai Fjords National Park 

has been good for the visitor industry, the economy, and for the community. The standard 

of living is higher, there are more job opportunities, local public revenues have grown, and 

the economy is more diversified. 

NPS works in partnership with the State of Alaska 

Passage of AN!LCA has long provided an opportunity for federal and state land managers to work 

together to protect and enhance the state's resources. NPS cooperates with the State of Alaska on a 

daily basis in a variety of areas, including: 

Assisting Alaska State Troopers with public safety in remote communities. 

Providing grounds maintenance and litter removal at two state parks near Sitka when state 

funding was no longer available due to budget reductions. 

Assisting State Depmtment of Transportation on road projects in Denali, Kenai Fjords and 

Klondike Gold Rush. 

Alaska Regional Office 

750 W., 2nd Ave, Suite 205 I Anchorage, AK 99501 I P 907.277.6722 I F 907-277-6723 I 

npca.org 
264 

Cooperating with biologists and resource managers in the field, such as with the Western 

Arctic Caribou Herd. 

Conclusion 

As exemplified throughout my testimony, ANILCA is an historic piece oflegislation with both 

measurable (e.g. economic benefits) and immeasurable benefits. Overall, the Act has been a 

tremendous success for the state of Alaska, preserving some of our nation's most treasured places, 

while providing direct benefits to local communities. 

Certainly there are a few areas within the Act that NPCA would love to see enhanced-for example, 

the completion of the Wilderness designations in parks and refuges (see Section 1317), and the 

addition of the "wolf townships" to Denali National Park and Preserve-affirming the 1980 Senate 

Report language for ANILCA which originally recommended that these lands be added to the park. 

However, overall we recognize that the final Act was a well-crafted compromise that reflects the 

struggles for balance between development and conservation of public lands in Alaska. 

6 

Thank you for your consideration of my testimony. Alaska is home to me and it is my hope, as well 

as the hope ofNPCA's one million members and supporters, that the magnificent national parks and 

other units created under ANILCA will continue to be enjoyed by our children and grandchildren as 

much as they are today. 

Sincerely, 

.Joan Frankevich, 

Program Manager, Alaska Regional Office 

National Parks Conservation Association 

Alaska Regional Office 

750 W., 2nd Ave, Suite 205 1 Anchorage, AK 99501 1 P 907.277.6722 I F 907-277-6723 I 

npca.org 
265 

Statement of Northwest Explorations Joint Venture 

before Senate Committee on Energy and Natural Resources, 

Oversight Hearing on 

Implementation of Alaska National Interest Lands Conservation Act 

December 3, 2015 

Northwest Explorations, Joint Venture (NWE) is a business entity fom1ed in 1970 to 

explore and develop mineral property now located within the Wrangell St. Elias National Park 

and Preserve (WRST). WRST was one of the conservation system units created through 

enactment of the Alaska National Interest Lands and Conservation Act of 1980 (ANILCA). Prior 

to enactment of this legislation, NWE owned approximately 3,600 acres of patented and 

unpatented mining claims that showed potential for development of a major porphyry coppermolybdenum deposit. The deposit is known as "Orange Hill" for the distinctive color the 

mineralization displays on the landscape. 

NWE submits this statement to summarize its efforts and frustration over more than 

thirty years to obtain reasonable compensation trom the National Park Service (NPS) which 

manages the WRST as a unit of the National Park System. This statement can be considered an 

abstract of many reports, memoranda and correspondence authored by the Park Service, NWE, 

consultants, and congressional representatives on issues associated with acquisition ofthe 

Orange Hill deposit. Supporting this statement is a selection of such documents with a numbered 

index referenced herein by bracketed document numbers. 

Orange Hill had been subject of extensive exploration in the 1970's prior to ANILCA. 

[1-3, 7]. Immediately prior to its enactment NWE had entered into an exploration and purchase 

option agreement with Pacific Coast Mines, a subsidiary of U.S. Borax and Chemical 

Corporation valued at $2 million plus a production royalty. Reports authored by the U.S.G.S. 

and NPS estimated the deposit contained 300 to 400 million tons of copper ore. By 1977, NWE 

had established ore grade reserves of0.4% copper for 177 million tons of the deposit. The U.S. 

Borax subsidiary's last exploration results in 1980 showed proven reserves of 115 million tons of 

marketable minerals. 

Upon enactment of ANILCA in 1980, Orange Hill became subject to the Mining in the 

Parks Act due to the WRST becoming a unit of the National Park System [1, 3, 7]. In 1985, the 

NPS was sued for failure to undertake proper environmental assessments of mining operations in 

WRST and a federal court entered an injunction against further permitting of such operations. 

Five years later in 1990, the Park Service issued a Final Environmental Impact Statement and 

Record of Decision wherein it announced a program to acquire all mining claims within WRST. 

NPS' acquisition program was authorized by ANlLCA Section 1302(a) [1-3, 7]. 

During the pendency of the injunction, NWE expressed interest in NPS' acquisition of its 

claims because it understood that future mining oppmiunitics were likely foreclosed. However, 

it took the NPS ten years (I 999) after ANILCA's enactment to authorize an appraisal assignment 

on Orange Hill that purportedly included mineral value [I, 3, 7]. That authorization was aborted 
266 

when the consultant visited the property, was shown geologic records and realized Orange Hill 

exhibited serious mineral value [2, 7]. So the Park Service instead contracted for a realty 

appraisal which disregarded mineral value altogether and valued the property at $146,000 in 

2000 [5]. 

Also in 1999, NWE initiated a lawsuit sounding in inverse condemnation against the NPS 

and sought just compensation for the taking of the Orange Hill mineral deposit [2, 7]. In June 

2000, the U.S. District Court dismissed the lawsuit because NWE had not submitted a mining 

plan of operations that had been denied on the merits and which would be a predicate to the case 

being jurisdictionally ripe for adjudication [l]. A few years later, another federal judge 

acknowledged that the Park Service's delaying tactics and refusal to decide mining plan 

submissions on the merits meant that commercial mining operations in Denali National Park 

were effectively prohibited. 

Not being deterred on properly acquisition, NWE negotiated with the Park Service 

several more years (between 2000 and 2008) to obtain a mineral property appraisal on Orange 

Hill [2, 7]. Once again, however, the Park Service did not retain a qualified mineral property 

appraiser but instead a real estate appraiser who opined in 2008 that the highest and best usc for 

NWE's patented claims was "limited recreation" and valued the property at $290,000 [5, 7]. The 

NPS did contract with Adventurinc Engineering for an economic analysis of mineral 

development of Orange Hill in 2008 [7]. 

However, that consultant's assignment was constrained by several assumptions that 

doomed any positive valuation; consequently, it valued the minerals at a negative $70 million 

[7]. NWE contends this outcome may be attributed to the NPS' meddling with the consultant's 

work product [7]. NWE retained its own consultant (Robert Trent and Richard Hughes) who 

prepared a critique of the Adventurine Engineering report in May 2008 which noted positive cash 

flow improvements of $210 million if specific parameters were changed to reflect more realistic 

data and assumptions [4]. 

NWE complained to the NPS, the Interior Department and the Alaska congressional 

delegation over the years regarding the improper and unreasonable tactics employed regarding 

the Park Service's valuation of Orange Hill. For example, in April2010, NWE through its 

counsel corresponded with the Alaska congressional delegation seeking its assistance on the 

Orange Hill valuation dispute with NPS [10-12]. NWE has demonstrated that the Park Service 

as well as the Interior Department generally have a poor record on their appraisal practice and 

voluntary acquisition programs over the last 40 years [7, 11, 20]. 

Due to these problems, in 2003 then Secretary Gail Norton consolidated the appraisal 

function into a new Office of Appraisal Services within the Department of Interior [7]. Still, this 

new entity failed to properly apply appraisal standards and procedures in contracting for and 

administering the 2008 consultant work products on Orange Hill due, inter alia, to the fact that 

the Appraisal Services Directorate (ASD) lacked any professional personnel qualified in mineral 

property valuation [7]. In May 2009, NWE's consultant (Trent and Hughes) proffered that 

Orange Hill could be valued at $43 million using a discounted cash flow approach [6]. NWE's 

2 
267 

counsel separately demonstrated in a detailed critique of the ASD's appraisal process in 

December 2009 that any valuation of Orange Hill would require application of the "scope of the 

project" rule in appraisal practice and just compensation law that disregards the regulatory effect 

ofNPS' de facto prohibition on commercial mining within WRST [7]. 

Recognizing the parties' extreme differences in valuation, NWE in 2009-10 requested the 

Park Service's participation in alternative dispute resolution (ADR) in order to eflectuate its 

stated 1990 policy of mineral property acquisition under ANTLCA [7]. Corresponding with 

ASD, NWE noted that Congress enacted the Administrative Disputes Resolution Act in 1990 

that authorized ADR among executive branch agencies, including arbitration. Even though the 

Interior Department had promulgated regulations to implement this legislation, the ASD in 2010 

declined NWE's request for dispute resolution because this would compromise the integrity of 

Interior Department's appraisal process and no precedent exists for such application to property 

acquisition [8, 9]. 

NWE disagreed with the bona fides of ASD's refusal to participate in ADR.1n the 2010-

11 time frame, NWE communicated with the Alaska congressional delegation, the Interior 

Department Ollice of Secretary for Alaska affairs and the Inspector General seeking approval for 

ADR resolution of the valuation dispute [10-12]. In April2011, NWE worked with 

Congressman Don Young's office to draft a bill that would require the Secretary ofinterior to 

participate in ADR lor patented lands within units of the National Park System in Alaska, or 

alternatively, authorize condemnation [18]. Unfortunately, the draft legislation was not 

introduced. 

In September 2011 former Interior Secretary Andrus, on his own initiative, wrote to then 

Interior Secretary Salazar recommending that the Park Service agree to submit the Orange Hill 

valuation dispute to binding arbitration [19, 21]. NWE retained another consultant who 

arranged a December 2011 meeting with the Park Service Director in Washington, D.C. on the 

issue [20]. The NPS Director still refused NWE's request. 

Participating in the December 2011 meeting was McKie Campbell, statT to the Senate 

Energy and Natural Resources Committee. NWE's counsel thereafter wrote to Campbell as staff 

to this Committee in January 2012 wherein he responded to the ASD's concerns about protecting 

the integrity of the Interior Department's appraisal process and the absence of precedent [20]. 

Sufiice it to say that the Director Bureau of Land Management has disagreed with the Park 

Service Director on the merits of ADR to resolve properly acquisition disputes. 

It seems preposterous that the Interior Department would have a sinecure in Washington, 

D.C. named the "Office of Collaborative Action and Dispute Resolution" with a budget probably 

in seven ligures and yet it refuses to apply a congressional mandate for ADR enacted in 1990. 

This was the same year the NPS announced its official policy for acquisition of all mining claims 

within WRST. Twenty five years have now passed and the government only has itself to blame 

for its failure in realizing voluntary acquisition of Orange Hill through a reasonable valuation that 

recognizes some measure of mineral value rather than realty value. 

3 
268 

Prepared by LawTcnce V. Albert, Attorney at Law, P. 0. Box 200934, Anchorage Alaska, 

[or Wallace McGregor, Northwest Explorations JV, 1212 N. Washington Street, Spokane 

Washington, December 10, 20!5 

4 
269 

List of Attachments Accompanying 

Statement of Northwest Explorations Joint Venture 

before Senate Committee on Energy and Natural Resources, 

Oversight Hearing on 

Implementation of Alaska National Interest Lands Conservation Act 

December 3, 2015 

I. Chronological Summary: U.S. National Park Service Acquisition Activity Re: Orange 

Hill Mineral Deposit owned b Northwest Explorations (:NWE"), October 2009. 

2. Wallace McGregor (Northwest Explorations), ANILCA's Legacy-an Unambiguous 

Taking-The Orange Hill Story, November 2005. 

3. Northwest Explorations, Meeting with Regional Director Marcia Blaszak. National Park 

Service, Anchorage, Alaska, June 2006 (report). 

4. Robert Trent, Ph.D. and Richard Hughes, P.E., Critique ofAdventurine Mine Cost 

Engineering Report on Orange Hill, Mineral Property Characterization and 

Resource/Reserve Determination for the National Park Service, dated May 26, 2008. 

5. National Park Service Alaska Region, letter to Fred Gibson, George R. Brown 

Partnership (offer to purchase Orange Hill for $290,000), December 24, 2008. 

6. Robert Trent, Ph.D. and Richard Hughes, P.E., Orange Hill Copper-Moly-Silver-Gold 

Property Assessment, Nabcsna Alaska, prepared for Northwest Explorations Joint 

Venture, dated May 2009 

7. Lawrence V. Albert, Attorney at Law, letter to Helen Honse, U.S. Dept. oflnterior 

Appraisal Service Directorate, with attachment "Deficiencies in Appraisal Practice of 

Orange Hill Mineral Property," dated December 16, 2009. 

8. Helen Honse, U.S. Dept. of Interior Appraisal Service Directorate, letter to Lawrence V. 

Albert, dated January 22, 20 I 0. 

9. Helen Honse, U.S. Dept. oflnterior Appraisal Service Directorate, letter to Lawrence V. 

Albert, dated April27, 2010. 

10. Lawrence V. Albert, Attorney at Law, letter to Hon. Lisa Murkowski, Mark Begich and 

Donald Young, Rc: Northwest Explorations Joint Venture-Orange Hill Mineral 

Deposit-Valuation Dispute with DOl Appraisal Services Directorate, with attachment 

"Summary of Inquiry to Alaska Congressional Delegation April 2010 ... ," dated 
270 

April30, 2010. 

II. Lawrence V. Albert, Attorney at Law, letter to U.S. Dept. ofinterior Office ofinspector 

General re: Request for OIG Investigation of Interior Department Appraisal Services 

Directorate, dated April 30, 201 0. 

12. Lawrence V. Albert, Attorney at Law, letter to Special Asst. to Secretary ofinterior for 

Alaska Affairs Rc: Orange Hill Valuation Dispute, dated April 30, 2010. 

13. Interior Department Office ofinspector General, letter to Lawrence V. Albert dated May 

27, 2010. 

14. Interior Department, Office of Secretary (for Alaska affairs), letter to Lawrence V. Albert, 

Attorney at Law, dated June 22, 2010. 

15. National Park Service, Alaska Region, letter to Cong. Don Young, dated September 7, 

2010. 

16. National Park Service, Alaska Region, letter to Fred Gibson, George R. Brown 

Partnership, dated September 9, 2010. 

17. Fred Gibson, George R. Brown Partnership, letter to Charles Gilbert, NPS Alaska 

Regional Office, dated September 22, 2010. 

18. Draft legislation to be authored by Cong. Don Young requiring Secretary oflnterior to 

participate in ADR or authorize condemnation of patented lands within units ofNational 

Park System in Alaska, with attachment "Explanatory Statement Accompanying Draft 

Bill on Alternative Dispute Resolution for Patented Lands within NPS Units in Alaska," 

dated April 20 II. 

19. Cecil Andrus letter to Hon. Ken Salazar, Secretary ofintcrior, Re: Request for NPS 

Dispute Resolution Process on Orange Hill, dated September 19, 2011. 

20. LawTcncc V. Albert, Attorney at Law, letter to McKie Campbell, Senate Committee on 

Energy & Natural Resources, Re: Request for Allemative Dispute Resolution on Property 

Acquisition-Orange Hill Deposit, Alaska, dated January 9, 2012. 

21. Wallace McGregor, Gco-Enterprises, Inc., letter to Hon. Ken Salazar, Secretary of 

Interior, dated January 21,2012. 

(prepared December I 0, 2015) 

2 
271 

April73 

12/11/80 

07/24/85 

11/09/86 

08/21/90 

02/10/99 

06/10/99 

07/10/99 

CHRONOLOGICAL SUMMARY 

U.S. ~ATIONAL PARK SERVICE 

ACQUISITIO~ ACTIVITY RE: ORANGE HILL MINERAL DEPOSIT 

owned by Northwest Explorations ("NWE") 

Park Service prepares "Wrangell St. Elias Park Master Plan." NPS identifies the 

Orange Hill and Bond Creek deposits at p. 53 and provides an in situ valuation: 

"At April 1973 prices, the values of this deposit of 400 million tons of 0.4 percent 

copper is estimated at $1.6 billion." 

ANILCA is enacted. Orange Hill is included in Wrangells St. Elias Park and 

Preserve. ANILCA § l302(a) authorized Secretary oflntcrior to acquire inholdings "by purchase, donation, exchange or otherwise." 

U.S. District Court (D.Aiaska) enters a preliminary injunction against permitting 

of mining operations within the WRST. See Northern Alaska Environmental 

Center v. Hodel. NPS is ordered to prepare an EIS on cumulative c!Iccts of 

mining within WRST. A pcnnancnt injunction is later entered that prohibits NPS 

from approving plans of operation. 

NPS issues General Management Plan, Land Protection Plan and Wilderness 

Suitability Review for WRST. The document docs not address minerals 

management in detail because this is being covered under the EIS required by the 

1985 court injunction. The Land Protection Plan proposed acquisition of patented 

mining claims in Priority I. 

NPS issues Record of Decision on Final EIS Cumulative Impacts of Mining for 

WRST. The NPS adapts Alternative Din the FEIS, which is acquisition of all 

mining claims within the park. The ROD indicates that "[i]ndividual claim fair 

market values will be determined at the time of acquisition." 

NWE executes NPS forn1 "Owner's Permission to Inspect and Appraise" for Tract 

No. 32-101, with a property description of Orange Hill. 

NPS informs NWE that "we now have an approved appraisal contract in place ... 

Your property has been included on the list for appraisal this summer." 

NWE (McGregor) visits Orange Hill property with Onstream Resource Managers 

(ORM), NPS' contract appraiser. NWE shows geologic mapping and data on 

copper ore mineralization to ORM. ORM suggested that NPS would not likely 

proceed with a minerals appraisal for Orange Hill under its existing contract or it 

would need authorization to revise its appraisal contact (McGregor undated 

-iNorthwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 1 
272 

09/02/99 

09/29/99 

12/22/99 

08/11100 

09/07/00 

xx/xx/00 

10/26/00 

12/29/00 

03/05/01 

document) 

Through telephone conversation, ORM informs NWE (McGregror) that it lacks a 

contract authorization to prepare appraisal on Orange Hill. 

NPS (Gilbert) informs NWE that ORM was too busy to proceed with appraisal on 

Orange Hill. Issue ofORM's authorization not resolved. 

NWE files an inverse condemnation action against NPS for taking Orange Hill 

property. Nortlnvest Explorations Joint Venture v. Bruce Babbitt, et al, No. A99-

0643 CV (JWS) (D. Alaska). 

NPS writes to NWE responding to its letter of 06/28/00 regarding property 

acquisition. NPS notes that its contract appraisers, Onstream Resource Managers, 

will be subcontracting with experts to acquire information about Orange Hill. 

NPS advises that any discussion of property acquisition will have to be 

coordinated with the Justice Department due to the taking lawsuit. 

U.S. District Court issues Order from Chambers dismissing NWE's taking action 

without prejudice due to lack of jurisdiction. The court concludes its lacks 

jurisdiction because NWE's taking claim is not ripe for judicial review; NWE has 

failed to submit a plan of operations which has been subject of an adverse agency 

decision on the merits and has failed to prove the futility exception to the ripeness 

or administrative exhaustion requirement. 

Conference Report on Interior Appropriations Bill for FY 2001 directs NPS to 

consult with NWE on selection of an appraiser for the property. 

NPS Director Stanton writes to Andrus assuring that an appraisal will be 

completed and an offer to purchase made. Director Stanton states that "the 

purchase of these claims is a priority for the Park Service." 

NPS appraisal report for Orange Hill is completed. According to report, "the fair 

market value of the fee simple estate of the property, less the mineral estate is 

$146,000." This appraisal was for surface estate only. NWE provided copy of 

report (copy not available). 

NWE/Birch Horton meeting with NPS personnel in D.C. to discuss parameters for 

a minerals appraisal for Orange Hill. The parties could not reach agreement on 

appraisal issues. Specifically, NWE contended a 1978 date of valuation should be 

used due to surface management restrictions while NPS contended a current 

valuation date should be used due to the federal court's dismissal of the taking 

action. According to NPS, it need not proceed with an appraisal ifNWE refused 

-iiNorthwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 1 
273 

06/08/01 

06/27/01 

01/18/02 

04/02/02 

07/08/02 

11/19/02 

xx/xx/04 

xx/xx/05 

05/11/06 

06/13/06 

to agree on the approach. NWE requested NPS not proceed with an appraisal 

until it advised the agency of its intentions. 

Birch, Horton writes to NPS requesting mineral appraisal proceed 

NPS writes to Birch Horton and advises that progress has been made towards 

purchase of Orange Hill. The letter states "a mineral appraiser and a fcc appraiser 

have been selected that arc mutually acceptable to the National Park Service and 

NWEX, and the NPS is prepared to award contracts for those appraisals." NPS 

the parties' disagreement about valuation date and requests a response so that the 

contractors may proceed. 

At NWE's request, Degen & Degen Architects prepares a development plan for 

the "Orange Hill Wilderness Report." This is a concept plan with an estimated 

budget of$37MM to completion. 

Birch, Horton submits ANILCA § 1110(b) application for improved road access to 

Orange Hill comprising 14 mile road. 

Conference call between NWE applicant, NPS, EPA and COE. NWE advised 

that ANILCA access application would require wetlands delineation and applicant 

would bear the cost of such delineation. 

NWE writes to NPS proposing lodge development for Orange Hill and inquires 

about access permutations for surface use of the in-holding. 

House Conference Report on Interior Appropriations Bill for FY 2005 states an 

expectation that NPS "will commence acquisition negotiations based upon an 

appraisal of the market value of the property." H. Con[ Rep. 108-542. 

NWE retains appraisal fim1 Mundy Associates (n/k/a Greenfield Associates) to do 

fee interest valuation. Consultant provides opinion of value ranging between 

$1.2 to $1.5 million presumably for 2005 valuation date (copy of report 

unavailable) 

NWE submits 36 CFR Part 9A mining plan of operations to NPS for exploration 

work on property, specifically diamond core drilling and bulk sampling. Phase 

One of the plan concerns the exploration work while Phase Two concerns 

development of an open pit mine. 

NWE and counsel (Tangen) meet with NPS WRST personnel to discuss 

acquisition process for Orange Hill along with its plan of operations. NWE 

provides narrative summary document to NPS providing abbreviated property 

-iiiNorthwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 1 
274 

06/14/06 

06/28/06 

07/11/06 

08/11/06 

11102/06 

J2128/06 

history and synopsis of prior events concerning valuation and property acquisition. 

NPS forwards e-mail to NWE (Tangen) authored by Martin Wild, NPS Review 

Appraiser. Wild's e-mail explains the new Appraisal Service Directorate 

established in 2004 for the Interior Department along with the procurement 

process that is followed for contract appraisals. 

NPS responds to NWE's plan submittal following the meeting with WRST 

personnel. NPS will initially evaluate the exploration work proposal and indicates 

additional infom1ation will be required, to be specified in a later transmittal. The 

Phase Two mine development is inadequate for NPS evaluation and will require 

further infom1ation. 

NPS writes to NWE regarding appraisal for Orange Hill and notes the meeting of 

June 13,2006. NPS recites NWE's intention to usc a contract appraiser (Trevor 

Ellis) and that NWE's contract appraiser will not be funded by the government. 

NPS advises it will proceed with a contract appraiser through the Appraisal 

Service Directorate as that is the process Interior agencies must follow. NPS 

solicits NWE's permission to inspect the property for appraisal purposes. 

NWE responds to NPS letter of July I I. NWE indicates that it previously 

provided consent for property inspection through form executed on Feb. II, 

1999, copy enclosed for NPS. According to NWE, NPS previously represented 

that ORM was a contract appraiser for the mineral value of the property in 1999, 

however, "the appraisal was terminated after the geologic and ore reserve data on 

the property were revealed to the appraiser." 

NPS follows up on previous letter of August 29, 2006 to NWE wherein it requests 

a copy of the geologic and ore reserve data on the Orange Hill property which it 

may usc for minerals appraisal. 

NPS infom1s NWE that its plan of operations lacks sufficient infonnation and is 

deemed incomplete for purposes of evaluation under 36 CFR Part 9A standards. 

NPS lists items of additional information needed before it will proceed to process 

the plan of operations submittal. 

(edited I 0/07 /09) 

-IVNorthwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 1 
275 

ANILCA'S LEGACY, AN UNAMBIGUOUS TAKING 

THE ORANGE HILL STORY 

CELBRA.TING A FLEETING FREEDOM 

December vvill mark the 251

h anniversary of the passage of the Alaska National 

Interest Lands Conservation Act (ANILCA). The cekbration will mark, as well, 

the fleeting freedom of private property rights as exemplified the history of the 

ofthe Orange Hill property without coJnpemmtion. 

Former U.S. Attomey General Edwin Meese HI recently commented in a Wall 

Street Journal article ("The Property Rights Test", WSJ, August 2, 2005) that, 

'Few constitutional protections are less ambiguous than the requirement that 

rw'"""'''"'" must not be taken for use "without "' In 

the eyes of a growing number of property owners, Mr. Meese cast his words in the 

wrong tense. What was an unambiguous freedom in the minds of the drafters of 

the Fifth Amendment is today a tenuous freedom, at best. 

A LOSS OF NO SMALL 

The Orange Hill property was a 3603-acre parcel of patented (363 acres) and 

unpatented (3,280 acres) mining claims enclosed within the Wrangell-St. Elias 

National Park and Preserve by ANILCA The of the property 

stands as proof of the ambiguity of the law as it stands interpreted today. every 

historical measure, the loss of freedom at Orange Hill is a private property taking, 

but in today's legal context, the action of the government in denying the beneficial 

use of the property for twenty-five years has yet to be recognized as a taking. 

Unarguable is the fact that the loss to the owners for that matter, to the State 

of Alaska, is of no small consequence. 

At the time of the creation of the WRST, the Orange Hill property was the second 

largest in the WRST, exceeded only the Kennecott Copper Co. 

in the of A one-page document entitled "Lode 

Values-WRST" made available by the Park Service in 1991 noted the Orange Hill 

property as having a large tonnage potential and high potential for future 

development. The acreage of the property was shown to constitute 21% of the 

total of 17,333.2 acres of and claim holdings 

considered of economic within the Park at the time of the creation of 

theWRST. 

The property had been under intensive exploration for the two decades prior to the 

passage of ANILCA At the close of the last year of exploration ih 1980, U.S. 

Borax and Chemical Co., which was exploring the property under an Exploration 

and Option to Purchase Agreement, repmted proven reserves of 115.7 million tons 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 2 
276 

containing copper, molybdenum and silver with additional values in zinc and gold. 

The gross metal value of the proven reserves at current metal prices is in excess of 

$2.5 billion. There are additional values in the zinc and gold. The contained 

copper in the proven reserves, not to mention the probable reserves, placed the 

deposit well above the median among the 50 % largest copper deposits in the 

world as defined in the Quantitative Analysis of World Class Deposits published in 

Economic Geolo,'?Y· Volume 90, !995~ 

NOT SO UNAMBIGUOUS 

One would think that to be denied the right to use such a property for a period of 

""'""'"-""'"'years and with no legal right to ever mine the mineral deposit of world 

class size would be an unambiguous taking. Not so, as the of the 

Hill property so graphically illustrates. 

The fact that the property was under active exploration, being conducted by a 

company under to purchase, lends undeniable to 

the validity of the proven reserves as cited. Lending further credibility is the :tact 

that, because all activity on the property had to be suspended for an indefinite 

period of time upon the enactment of ANILCA, the Exploration and Option to 

Purchase Agreement was amended by mutual agreement to extend the period of 

the option in of the fact that, as cited in the "the objectives 

of the Agreement have been delayed for a period of time by the action of the U.S. 

Department ofthe Interior." The Amended Agreement extended the option period 

to the year I 995. In recognition of the time value of money and inflation, the 

amended agreement for an escalation of the price and provision 

for price based upon the "Price Indexes for the Non-ferrous Metals 

Commodity Code 102, published by the U.S. Department of Labor Statistics." 

It was when, in 1985, the National Park Service was enjoined from approving 

of that the parties the inevitable outcome of 

the loss of the to ever mine the property. There was no 

question that the right to enjoy the use of the property had been taken. With the 

loss of value of the mineral rights unquestionable, the parties mutually agreed to 

terminate the Agreement. Under the circumstances, there was no point in holding 

the claims. As a result, the owners allowed the unpatented claims to 

lapse in 1986. 

A HOLLOW PROMISE 

In a naive state of trust, the owners were to take comfort in what believed to 

be the unambiguous Constitutional guarantee of compensation for their taken 

property. When the Wrangell-St. Elias National Park and Preserve published the 

Environmental Impact Statement Record of Decision on August 21, 1990, the 

decision was presented in bold AU Claims. Logically, but not 

wisely, the owners took the statement to be a good faith commitment on the part of 

the Federal Government to acquire their claims. In reality, the decision proved to 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 2 
277 

be not only a hollow promise, but a pluy that held dire consequences for any 

in holders trusting enough to take the statement of the Park Service at !1lce value. 

Buoyed in spirits by the belief that the Record of Decision was a commitment of 

the government in compliance with the tenets of the Fifth Amendment, the owners 

immediately sought information from the Park Service in preparation to cooperate 

fully with the Park Service in the implementation of the decision. A letter written 

to the Alaska Regional Director dated November 5, 1990, requested information 

under the Freedom of Information Act pertinent to arriving at a value for the 

patented claims at Orange Hill. By 1992, lacking an offer to purchase the claims 

from the Park Service, the owners took the initiative to offer the claims to the Park 

Service subject to an appraisal. The Park Service replied that Congress had not 

appropriated funds with which to conduct appraisals in the WRST. 1:he statement 

had a basis in fact. Year after year, thereafter, the Park Service sidestepped the 

repeated requests to conduct appraisals by citing the decision of Congress to 

appropriate funds only for property acquisitions in the Denali National Park. 

Efforts the owners to press the Alaskan Congressional delegation for 

consideration under the law ''laS to no avaiL .For whatever political reason, the 

appropriation of funds for acquisitions were to be focused solely on properties in 

the Denali National Park, or at least that was the story being told. 

In May 1994, the owners turned to the Pacific Legal Foundation for but were 

informed by Attorney James Burling (property rights, natural resources) "the 

wording of the Record of Decision had been so written that holding the NPS to 

that statement would be next to impossible." (Telephone discussion on Afay 20, 

1994.) In the meantime, the ten-year extension ofthe statute oflimitation to 

inverse condemnation action was away. 

AN ABORTED APPRAISAL 

In 1998, the owners received a letter from the WRST inquiring about 

their interest to sell the Orange Hill property. What prompted the change of stance 

by the Park Service was the closing on the purchase ofthe surface rights to a 1,000 

acre parcel of the Kennecott patented mining claims consummated after eight 

years of negotiation repeated appraisals. It was not until June 1999, 

with the statutes of limitations due to in six month, that the Park 

Service was willing to commit to a mineral appraisal of the Orange Hill Property 

on the condition that the appraisal be conducted by the Park Service contract 

appraiser. a requirement agreed to by the owners. 

The property examination by the appraisers was conducted in 1999. In a 

meeting prior to the helicopter flight to the property, the appraisal team was given 

geological information and preliminary data on the proven reserves. The 

comprehensiveness of database was obviously unexpected. The reaction of the 

"'""",."'"".,." was a frank disclosure that, in all unlikelihood, the Park Services would 

decline to proceed with the When questioned why, no reason was 

but the reaction proved to accurately reflect the National Park Service position. 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 2 
278 

After receiving the full database pertaining to the property in September, the 

""'"'r'''"''r informed the owners !hat he did not have a contract to proceed with the 

A letter from the Alaskan Branch Chief of the Land Resources 

confirmed the decision shortly thereafter. 

NO OPTION BUT TO SUE 

Faced with the pending loss of the to appeal under the Statute of Limitations, 

the owners were lefl \vith no recourse but file suit. They informed the Park 

Service of their need to protect their right to pursue an inverse condenmation 

action by unless the Park Service proceeds with its commitment to timely 

as The Alaska Regional Resource Officer 

responded, not to know about a deadline for filing a takings action and 

steadfastly refused to proceed with the mineral appraisaL On December 22, 1999 

the owners filed a complaint charging the National Park Service with, "committing 

a compensable taking of its eighteen and ninety-nine unpatented mining 

claims when environmental were in 

the Elias National Park." The was made with the offer to 

withdraw the suit upon the agreement of the National Park Service to conduct the 

appraisal. Former Secretary of the Interior, Cecil Andms, on whose watch 

ANILCA had been took note of the and in a letter to Director 

Stanton, urged him to proceed with the Director Stanton replied to 

Andrus indicating his determination to proceed with an of the taking action 

while refusing to proceed with the appraisal. It was a calculated decision 

purposely taken to mute the charge of taking thereby effectively validating the 

government's action while not to compensate for the taking. 

JUDICIAL BIAS 

The motivation for the Director Stanton's decision became clear when it was 

learned that the selected to hear the case, was known to 

have a bias on takings. Judge Sedwick's decisions in previous cases had turned on 

the premise if a Plan of Operation had not been submitted and denied, a 

taking had not occurred. Thus, the Government moved to dismiss the case 

maintaining that the owners must have submitted a that, short of 

arbitrary the Park Service could not approve. According to the 

Government, in the absence of this formalistic process, the Court has no 

to address the owners' cause of action. The Government prevailed in 

its argument. The Case was dismissed on the grounds that it was not for 

adjudication. In retrospect it could be seen that the owner's in '4'-''~"'~-'<u,,~ 

in good faith the government's statement of "Acquire AU Claims" and its 

unwillingness to take the disingenuous step of submitting a Plan of Operation in 

obvious contradiction of the intent ofthe law, proved to be its undoing. 

Judge Sedwick's decision set a standard for government complim1ce with ,Fifth 

Amendment Right to Private Property that, in effect, absolves the government of 

the responsibility tor denying property owners the free use and enjoyment of their 

Northwest Explorations JV Statement to Sen, Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 2 
279 

property without compensation. Under tb.e standard set Judge St:dwick, it is the 

formalistic act not taken by the property owner on the word of the government that 

absolves the Government of its ju:;t compensation tor a 

property taken for public use. The fact that in the protection of 

property rights now is hardly disputable when the government acts with lhe 

intent to obfuscate with the Constitution. 

BUREAUCRATIC STONEWALLING 

Having lost on its inverse condemnation suit, the mvners continued to press for an 

"Efl""~'"' but at the same time turned their eftorts to gain Congressional support 

appraisal and acquisition tor the WRST. Cecil Andrus once again 

urged Director Stanton to follow through on the appraisal of the Hill 

property and made note that the owners were pursuing support tor an 

appropriation of $3.8 million for acquisitions of inholdings within the WrangellSt. Elias National Park. Director Stanton's to Andrus in a letter dated 

October 26, 2000 gave assurance that the would be and that 

an offer would be made to the Owners. 

Director Stanton's intent can be assumed to have been honorable but the 

implementation of his intent under circumstances of a or administration 

>vas Iefl: to the behest of tllc bureaucracy, which made clear its intent to the 

contrary. In a meeting arranged for the purpose of coming to mutual agreement on 

the parameters of an appraisal, an owner representative accompanied by counsel 

met with NPS Chief Appraiser Gerald Stoebig and Chief Realty Officer Eugene 

and staff in D.C. on March 5, 2001. In opening the meeting, 

counsel for the owners referred to the language of the FY 2001 bill 

that instructed the National Park Service to set a ''purchase that is objectively 

fair and equitable." He asked for their view of the term "fairness." TI1e gist of the 

response of the National Park participants was that the basis for judging fairness 

was an unknmvn. The comment was made, "never heard of basis for fairness. 

The discussion set the tenor of the of the stam:e vvas 

the expressed by Appraiser Stoebig's to the effect that the mineral rights 

had not been diminished by enclosure within the Park. It was impossible to 

achieve mutual agreement on any parameter. As the negotiations came to a close 

without agreement, Officer observed that without a mutual 

agreement on the proposed parameters, the need for an appraisal was mute. The 

statement was made with an air of 'mission accomplished.' The silence that 

followed was broken the Alaska Regional Resource Officer's mention that a 

fair market appraisal had been completed. The Park Service would argue that the 

appraisal had been conducted with the approval of the owners, but the fact no 

such approval had been given and the appraisal had been conducted unbeknown to 

the owners. When earlier reported to the owners, refbsed disclosure and 

responded with a reaiTirmation of lheir decision to refuse acceptance of a real 

estate without the mineral The meeting closed on the note of 

irreconcilable differences 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 2 
280 

After the meeting, at the recommendation of counsel, the owners relented on their 

decision not to the release of the real estate It vms learned that 

the Park Service had commissioned the on November 2000. In the 

dated December 29, 2000 with an date of December 5, 

2000, the that "the fair market value of the fee 

less the mineral estate, in the subject property, is: ~:!2~~~~~~~i..l~~ 

The per acre value of $$401.87 was the 

lowest per acre value of all WRST with one known a 

property described as talus slopes:· 

A TUR!'.:I TO CONliRESS -TO NO .A VAIL 

With reason to be but determined to gain the 

owners turned the focus of their efforts on a approved 

in with mounting an effort to gain Congressional help to 

resolve the impasse in with the Park Service. The owners turned to the 

of new D.C. based counseL It was assumed that 

with the would for the better under a 

administration but that proved not to be the case. As u".t;v<cm•.:u'"' n•·n<>r<"<:«f>ll 

what were to be agreements on the selection of an appraiser 

temporary and to the same on the part of the Park Service 

management that the effort to mutually agree on parameters. 

After two more years of stonewalling by the Park Service it became apparent that 

the burden of addressing the issue of for the Orange Hill ,..,,.,ww•rh· 

taking on the shoulders 

Congress for help to the Hill 

nothing more than appropriations to fund WRST in 

three annual budgets but never to the extent of gaining eanuarks dedicated to 

"v''"ll"u'''"''vn for the Orange Hill property. When, in the sessions of 

in December 2004, the FY 2005 bill passed as an 

omnibus bill, instructions to the WRST regarding 

it was clear that the Congress was deafto the 

CO'ffip1cnsatiox1. The pursuits of and recourse 

proven failures. The of the Orange Hill without 

cornptms.atl<m had to be fact 

ONE OF A MYRIAD OF TAKINGS 

It is to understand that the Orange experience stands not as an 

illustration of an isolated abrogation of a Constitutional but, as one of 

a of that occurred when ANILCA was enacted. For the m¥IJer of 

each and every mineral property enclosed within a National Park there was a 

penalty to be not a to be The minimum penalty took the 

form of a payment for the based upon a biased of the 

surface rights value. The more form of involved the and 

time-consuming commitment to fight for just and 

Northwest Explorations JV Statement to Sen, Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 2 
281 

At worst, the penalty entailed the 

action for inverse condemnation. 

THE NEED FOR CLAIRVOYANCE 

taken property is, for the mm;t part, a lost cause. 

Foumiation 

of C011Ylpen~;atJ 

cost of 

added for stamina m.ld resour<:es.'' He explained 

that need to be is because you do not know what is to happen in 

the tl1ture. If you knew then what you know now, you would do 

but arc changing in the courts so you could not have 

knovvn. emphasized the importance of stamina, out that 

it will take years to deal with the appeals and everything that is involved. The 

need for financial resources, he is obvious. 

is that legal and that the laws are 

in flux. As a consequence, in Attorney view, if a property o·wner is 

the future and of actions in anticipation of the signs of 

the almost certain outcome of a face-off ~with the government on a 

properly issue will be failure. Given 

property rights, it is difficult to !he 

property owners ~who have been dealt th~:: uliim<~te penalty of 

expense to for their property 

'-·"'ic""""''"""' has the aura of a far-J:Ciched rationalization of a 

amuck 

lN THE FiNAL ANiU. YSIS 

In the final the Hill the very circumstances that the writers and signers of the Fifth Amendment of the Constitution 

to protect Foremost is a.'l un-relgned, overzealous bureaucracy 

lacking oversight and unanswerable for their actions even lo their appointed 

There is the of legislation and the or legal decisions 

intended to circumvent the Constitutional \Vhich allmv 

inimical to freedom. There is the ever present by 

elected officials with what are deemed to be more pressing or important issues 

than protecting essential Constitutional rights. And, as with the case of the 

dismissal of the Orange Hill inverse condemnation suit, there are judges to 

rather than strict adhcrcm:e to the ''mrds of the 

'"v''""'""·"'" the very toundation of our freedoms. The ominous 

fact is that today, there are no safe havens t(lr citizens whose property has been 

taken without certainly not in the courts, certainly not government 

administrators. not the 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 2 
282 

PLAN TO ADDRESS THE FESTER OF ANILC'\ 

A vibrant Alaskan economy upon soundly expanding natural 

resource industries. Achieving the goal of a strong resource based economy can 

only be assured continued investment in mineral and petroleum exploration and 

development under circumstances of secure property rights. Under no 

circumstances can investors chance to be summarily denied the right to a 

natural resource without just and lair compensation in the event that there is 

determined to be a purpose or usc for the of greater value lo the whole of 

ln order to achieve tt':lis the it.sler of AJ:-IILCi\ must first be 

addressed and to closure. The means to do so, is as follow·s: 

1) The State of Alaska will work with the Congress to negotiate the terms of 

agreements \Vith owners of mineral properties enclosed within the 

National Parks and Preserves the enactment of ANlLCA with the 

purpose of: a) the economic use ofthe for or 

b) purchasing the mineral rights and tair 

2) Tile negotiated compensation for the purchase of properties will take into 

consideration the provisions of the in the Park Act and 

the of 25 years since the passage of ANlLCA during which the 

owners have been denied the usc ofthdr properties. 

3) In the event that the mineral are purchased, a condition of the 

4' } 

shall be the contribution of a!I data lo the mineral 

resources to Minerals Data and Inti.1rmation Rescue-Alaska 

Jbr the of the mineral rights will be by Congressional 

from the Land and Water Conservation Fund 

In so the to propcl"ty under the Finh Amendlllent of the 

c:onstitution __,"viU be rcaft1nrted in the Stat~ of greatly the 

attractiveness of Alasku as the premier State t<w resource industries investment 

Wallace lY.'''A·''"l"'"' 

November lL 2005 

Northwest Explorations JV statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 2 
283 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 3 
284 

1 

4 

-1978 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 3 

10 

11 

14 
285 

1923 

~967 

1970 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 3 
286 

Northwest Explorations JV S~l\!, tJen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 3 

2 
287 

1978 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 3 

1 
288 

1979 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 3 
289 

1981 

1987 

North~~~j)lorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 3 

5 
290 

summer.$9 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachm~nt 3 
291 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 3 
292 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 3 

g 
293 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attach~nt 3 
294 

10 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 3 
295 

11 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 3 
296 

(ol From the end of the 7th to the end 

9th year 

[c) Prom the end of the 9th to the end 

and, where 

exercised 

(d) 

(e) 

be .increased by 

Price and Price 

ll:th 

Prom 

13th 

From 

15th 

102 U.s. Deioalttnrrer>t 

Hay 

year 

the end of the 11th to the 

year 

the end of the 13th to the 

year 

2\greement. 

other than those amended herein, shall continue 

effect during the term of the Agreement 

end 

end 

$2,250,000.00 

of the 

2,550,000.00 

of the 

2,850,000.00 

of the 

3,2()0,000.00 

of the 

3,600,000.00 

IN WITNESS , this Amend1uent has been executed as of 

the date first set forth. 

PACIFIC COll.ST MINES, INC. NORTHI4EST EXPLORATIONS 

THE LOUISIANA LAND AND 

EXPLORATION COMPANY 

Northwest Explorations JV ~<!!Pen. Energy Committee 

Heanng on Implementation of ANILCA 

Attachment 3 

1? 
297 

Lod~ Values \IRST 

f'rt'>Pertr Rts\lurceg kell Art a fyp.e i)e-lf. .Dev, Description 

Pet Unpert Potent. 

fiabes.na River Au,AI!,t.:u 5.30.57 <N H fligh f10V :Produced \i9"U Recent dtiU f~PL 

ectt 

Snag Creek (il 3f)4. 5t Vol Ron tut Ji UY'Jd 

CtLlJ JJ4 Ct~,Ho,Av,As 1M{) H 11cd tut : 1/~lnlet.s .& dis in .gr-dio a qt~ oon ::S0%>:!/1!'\C ~ lSGIUIT L31: cu 

f'-I i'\od r.ow :$DQ<I p.rosp!.'ct 

tfio;Jl'l flit :100 111 lirulf'rllror.~nd ldork recent <!rill 

GreenSutt.ll Co,Ag 

:Stock 500D-i Hi9rade 11{11 ore 

Fremd"S Pb,Zn,A-g :W!J V,)} f'-1 Maybe :? 

~LSu!nr !AK/ Cu J:W.St V,(l P-i :Vdnltot and fll'li'Yitd fr, h!isalt 

J.lh(te R, (AK} :State of AK 

Bonanza Ridg~ CI.I,Ao:,Au, 3273.& 27601'1,\f,D i"'·I l-li9h 11LIV 

Sil Stnr Pun 

Taral Cr~11k 

Elliott t'r, 

Con. 

l'lo-,2n F-A :Han,, reaw:snts in 

Cu 276.79 

'" 235.71 

Cu,f,q,Au, U'l3.3 

Zn,l'lll 

Ag,Cu,Au 

tu !1.933 

V,O 11-I l11'1d fut ~ffhrile--in¢liM$..JIIifl{ll' IH'OdlJCt. 

f~A :No aajor l'lllo$1> -sui e-oco\.lnterf!d 

v,c !'!~I 11od fut :Prospact. 30 11. edit nc rept IH'od 

100 V,M,O M·l l'to>;l nov ,seve-rel good prQspeds J'Of' explore 

P-~ Hio;,h ful: !6nd r:onsolidBtion 

w lh-\ lH11h Mr./ ;~ecNtt pr'""<fur.:tion 11~<Hl- p-otentill"l fCJr 

:neH s-ceie A<J, Cu: 

?~I Ho~ fut :Yen lillited potential JJ/o lll>J.I'-e Lonct 

:. in thit ina Vi U PaL 

O,t! P-I Mid fut :Mot goCid Prosr:-ect? 

IJ,fl,O M-f n(ld hOW :Mostly OQrssoliQ~ted. Loei!l hi\11'ade 

P-7 High tut :Cu,Ag end so;~e rro-od Au- value:!: 

Northwest Explorations JV <Ffgu&~~QIJ>en. Energy Committee 

Heanng on Implementation of ANILCA 

Attachment 3 

i3 
298 

58 

l\l<lD W,A.'l'B:R CONSERVATWN FUND 

(RtiSCY.'lBlO.Nl 

L.(I.ND ACQ!.llSrriON AND.G;I'.'•TE .o\ESIST.;\..'\'CE 

2004 

Northwest Explorations JV ~gul!lllcti>en. Energy Committee 

Heanng on Implementation of ANILCA 

Attachment 3 

1'\ 
299 

CRITIQUE THE 

ADVENTURINE MINJl: COST ENGINEERING 

REPORT ON 

AND RESOURCE/RESERVE 

DETERMINATION FOR THE NATIONALPARK SERVICE, 

JANUARY 2008 

BY 

ROBERT H. TRENT, PE, PhD 

& 

RICUARD A. HUGHES, PE 

H2T MINI': ENGINEERL"''G SERVICES 

318,1lJNI<:An A VIC 

FAIRBANKS, AK 99701-3768 

(907) 451-6537 

May26,201J8 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 4 
300 

TABLE OF CONTENTS 

EXECUTIVE SUMMARY 

Table 1. CASH FLOW SUMMARY 2 

SUMMARY OF OBSERVATIONS RELATIVE TO REPORT 2 

RESOURCES AND RESERVES 3 

DEVELOPMENT 5 

MINING 5 

MILL AND TAILINGS CONSIDERATIONS 7 

GENERAL 9 

CONCENTRATE HANDLING 9 

COLD CLIMATE CONSIDERATIONS 10 

ECONOMIC EVALUATION 11 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 4 
301 

EXECUTIVE SUMMARY 

This report is to provide the results of an analysis of the Scott Stebbins 

(Adventurine Mine Cost Engineering) "Mineral Property Characterization and 

Resource/Reserve Determination for the Orange Hill Copper-Molybdenum Deposit" 

REPORT, dated January 2008, for the National Park Service, Alaska Region. This 

CRITIQUE will present an overview of efforts to identify short-comings of, and 

improvements to, the REPORT and include a review of reserves, development methods 

and costs, mining plan and manpower, mill and tailings handling considerations, general 

considerations, concentrate handling, cold climate considerations, and economic 

evaluation. In the interest of brevity, no effort will be made to repeat rudimentary facts 

such as location and access, claims list, topography, history, acreage, other, unless those 

facts are found to be mistaken or engineering/costs assumptions and calculations used in 

addressing these issues are different than we consider practicaL 

We note that Scott Stebbins is registered as a professional engineer in the State of 

Washington, but not in the State of Alaska. Registration in Alaska is discipline-specific 

and requires that the applicant successfully complete Arctic Engineering course(s). 1 The 

reason for this registration requirement is to assure that the engineer understands cold 

weather and Alaska conditions, acceptable operational methodologies, local and 

statewide standards, laws and customs. 

"REPORT" as used herein shall refer to the Stebbins report. "CRITlQUE" as 

used herein shall refer to this analysis and related calculations. 

The REPORT goes into elaborate detail and demonstrates an obvious competence 

in computer evaluation of mining projects. Nevertheless, there are a number of shortcomings in assumptions and costing that deserve comment and serious consideration. 

We have examined a few of the short-comings and conclude that significant 

improvements can be gained in efficiency and plan adjustments. We were limited in our 

time to review the voluminous document, but were able to identify cash flow 

improvements amounting to $284.2 million, as set forth in TABLE 1, which follows. 

This brings the net cash flow to $210.0 million for the project A net present value 

calculation has not been performed. 

1 Statutes and Regulations, Architects. Engineers. and Land Surveyors, October 2007. 

http://www.commerce.state.ak.us/occ/pub/aelsstatutesregs.pdf 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 4 
302 

TABLE 1 

CASH FLOW SUMMARY 

ITEM SM COMMENTS 

NCF from REPORT ($74.2) A negative cash flow. 

IMPROVEMENTS 

Include Silver $108.8 Must be included. 

EPC consulting costs $12.9 Excessive EPC rate- 32% to 17% rate 

Road Constmction $10.3 More realistic scope 

Eliminate pre-splitting $41.5 Pre-splitting for ore control is unnccessarv 

Power cost recalculation ($33.3) Fuel costs not calculated correctly 

Eliminate tailings lines heating $86.8 Not necessarv. Retum water also included. 

Soil stabilization elimination $25.3 Complete overkill and not needed. 

ProperlY and severance tax $44.3 No borough in the area and no associated taxes. 

Labor cost adjustment ($16.0) Adjusts for 3 to I schedule and correction in burden calc's. 

Staff reduction $3.6 U nneccssarv positions elimination 

TOTAL NET CASH FLOW $210.0 

Table I. Cash .flow summmy. Preliminary list of cash .flow changes for the Orange Hill 

project considering improvements in development and operating plans and procedures. 

SUMMARY OF OBSERVATIONS RELATIVE TO REPORT 

• The REPORT appears to be heavily padded to increase costs to inordinately high 

levels in both capital and operating cost estimates 

• Mr. Stebbins is not registered or licensed to practice mining engineering in Alaska 

• The REPORT is very detailed and demonstrates computer-aided experience and 

competence in cost calculation 

• Resource/reserve calculations should include silver as a recoverable commodity 

• The cut-off grade should be calculated and be based on the recoverable metal 

prices/quantities and costs relative to the operating plan; the current cut-off grade 

is arbitrary; a quick calculation showed that in using the REPORT's costs and 

plan, the cut-off grade should be 0.235% copper; further efforts should be based 

on copper-equivalent grades, taking molybdenum and silver into account 

• In-fill drilling is needed to more fully define the reserves; the proposed plan is 

considered acceptable 

• Commodity pricing is considered acceptable for the period of the REPORT 

• EPC (engineering, procurement and construction management) costs are 

considered to be significantly higher than is acceptable at 34%; normal charges 

are in the order of 1 7% 

• The road between Slana and the White Mountain mine is State owned and all cost 

for operation and upgrades needed will be the responsibility of the State 

• Dust suppressant applicant frequency and needs are significantly exaggerated and 

must be reduced or eliminated 

• Alternative power sources must be considered in the feasibility determination; a 

hydropower generating facility at Slana is a possible alternative 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 4 
303 

• Mining by other methods should be considered; underground block caving is a 

possible alternative 

• The mining rate should be reviewed to be more cost-effective; a rate to be based 

on a 15 year mine plan should be considered 

• The proposed mining plan as related to pre-splitting for ore control, 1O-ft benches, 

equipment selection, manpower requirements is not practical 

• The coarse ore bin is not needed and should be eliminated 

• The mill and tailings disposal proposal needs considerable scrutiny; 

improvements are very probable 

• Mill location at off-site locations should be considered 

• Dry stack tailings storage is an enhanced opportunity 

• Tailings pipelines heating is unnecessmy and should be eliminated 

• Power costs are probably low and should be re-calculated 

• Concentrate handlings are excessive and need to be reduced to eliminate dust 

control and excessive grading 

• Other destinations should be considered for concentrate sales 

• Labor cost benefits and burden calculations were not calculated correctly 

• The working schedule should be modified to 2 weeks on and 1 off with workers 

working either II- or 12-hour shifts; the 4 on and 2 off schedule with workers 

working 8 hour shifts, being paid for time off is unacceptable 

• Property and severance taxes should not be included in the costs; the mine is not 

located in a borough and the State does not impose property or severance taxes. 

RESOURCES AND RESERVES 

The REPORT advises that reserves and resource calculations are based on over 

30,000 feet of drilling in more than 80 holes. The deposit has been reasonably well 

defined, according to the REPORT. Issues of importance included in this section include 

cut-off grade calculations, reserves and metal used in value calculations. 

The REPORT shows reserves of 62,427,000 tons with a grade of 0.308% Copper 

(Cu) and 0.031% Molybdenum (Mo) with a stripping ratio of3.65:1. A cut-offgrade of 

0.20% Cu is used in the determination. A polygonal method of reserve calculation was 

used. We take no issue with these determinations given that it is not dissimilar from 

reserve calculations presented by others and that we did not have the time and luxury to 

perform independent estimates. Only copper and molybdenum values are used in the 

determination; silver appears to be a valuable additional metal that should have also been 

used in the analysis. There is also a question raised as to cut-off grade since no basis is 

given for its value. 

A significant number of silver values have been determined for the drill returns. 

Work by Pacific Coast Mines, Inc. (a wholly-owned subsidiary of US Borax and 

Chemical Company), estimated proven reserves of 115,700,000 tons with a copper grade 

of 0.308%, molybdenum grade of 0.024%, and a silver grade of 0.175 ounces per ton. 

The average grade of silver reported by Wallace McGregor is 0.175 ounces per ton of 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 4 
304 

ore. The net smelter return value (NSR)2 of the contained silver would be in the order of 

$1.74/ton of ore after deduction for smelter and refining charges; the total cash flow 

would move from negative $74.2 million to plus $34.6 million based on this 

consideration alone. Although we have not had the time to carefully examine the assays 

relative to silver content, the Pacific Coast Mines, Inc. data very clearly indicates that 

silver is contained in the ore in economic amounts. Leaving this product from the 

determination of value is negligent and biases the results in a negative manner. 

The selection of cut-off grade can influence the mine plan and resulting 

economics considerably. The selection of 0.2% Cu cut-off is quite arbitrary and is not 

correct. A copper-equivalent grade calculation should be determined in order to calculate 

reserves; and the copper equivalent cut-off grade should be based on total operating costs 

to optimize the economics of the project. It is interesting to note that the NSR for a 0.2% 

copper grade, assuming that the grades of the molybdenum and silver would vary 

proportionally, would be an average of approximately $20.53 per ton. The total operating 

costs of the project as calculated in the REPORT amounted to $1,586,511,144 which 

calculates to $25.41 per ton of ore. Performing a rough cut-off grade calculation based 

on the REPORT's operating costs indicates that the cut-off grade should be in the order 

of 0.235% copper; this would impose a small reduction of reserves by an unknown 

amount. The REPORT's operating costs are considered to be very aggravated to the 

extent, however, that the 0.20% Cu cut-off is probably satisfactory if not too high. 

On page 13 of the REPORT a statement is made that " ... for the purposes cif our 

analysis, that most locations within the Orange Hill claim block, resource volumes with 

stripping ratios of greater than 10.0:1.0 (ore:waste) could not be recovered at a profit." 

We assume that this should be "waste:ore" as the stated relationship would indicate a 

very profitable scenario. 

On page 14 of the REPORT a statement to the effect that " ... the drill-hole 

density is sufficient (given the deposit model) to provide a reasonable level assurance to 

grade and volume. However, more drilling (commonly referred to as in:fill or mineblock definition drilling) would be required prior to production. For the purposes of this 

evaluation, we've assumed that an additional ..f5 holes will be needed, which >vould 

provide an estimated 36,000 feet cif additional drilling." This seems to be a reasonable 

assumption and is not challenged in this CRITIQUE; however, a more detailed analysis 

might indicate that this is not a valid assumption. 

Commodity pricing assumptions seem reasonable and are not challenged in this 

CRITIQUE. The metal prices used in the REPORT were $3.46/lb for copper and 

$34.35/lb for molybdenum and were based on the average historic prices near the date of 

the REPORT. In order to present a metal price comparable with that of the REPORT, the 

average price of $13.46/oz for silver for the last 6-months of2007 was used. 

2 Assumes that silver will report to the copper concentrates in proportion to copper recovery and that 

typical smelter and refining charges will be assessed against recovery. 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 4 
305 

DEVELOPMENT 

The REPORT advises that "Fees for engineering, planning, and feasibility 

analyses are estimated to be 18.0% (!f the total capital costs. Construction management 

and supervision costs are estimated at J.I.(J% of the total capital costs. " This equates to 

a total of 32.0% of the total capital costs, which is inordinately high. The total 

engineering, procurement and construction management costs shown in the Appendices 

amounts to $34,843,000. Normal feasibility estimates for this item are in the order of 

17%3 for these items. A reduction to 17% would reduce this cost by approximately $12.9 

million. 

Road construction costs are overstated in the REPORT. The road between Slana 

and the White Mountain mine is the responsibility of the State of Alaska; if upgrading is 

needed the State will be responsible for the effort and related cost. The new section of 

road between the White Mountain mine and Orange Hill does not need to be of the size 

recommended. Road widths will be minimized due to the lack of large loads. Bridges 

can be of minimal design to handle minimal material and personnel transport. Capital 

equipment and other heavy items can be moved to the site after freeze up, across the ice, 

thereby negating the need for bridges for these items. A conveyor to move the ore from 

Orange Hill to an off-site mill location will have a significant influence on design. 

Very little permafrost should be encountered due to the fact that the entire area 

was covered until recently by the Nabesna Glacier. Road construction material for the 

road base will be available at an offsite location that is about equal distance from each 

end of the road. 

Overall, we estimate the cost of the road and bridge construction can be reduced 

by approximately 60 to 70%. This will reduce this cost by approximately $10.3 million. 

There are numerous other areas of improvement that have been noted to the 

development of the project. Time shortfalls simply do not allow us to investigate or 

comment on these costs at this time. 

MINING 

Open pit mmmg using front end loaders and haulage trucks is an acceptable 

method for mining porphyry copper-molybdenum ore bodies as in the REPORT. 

However, the opportunity of using other methods, such as selective underground bulk 

mining (block caving) should not be dismissed in an analysis. The Henderson mine in 

Colorado which utilizes underground block caving for mining the molybdenum ore body 

operates at a cost of $7.99/ton4 Transposing those costs to the Orange Hill ore body 

suggests a cost of $9.43/ton in terms of 2007 costs could be achieved. This opportunity 

will not be discussed further in this CRITIQUE, but this method will be considered in 

future reports. 

3

Jack de Ia Vcrgne, Hard Rock Miners Rules of Thumb 

·+ '\V'\VW .rninecost.co1n 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 4 
306 

The REPORT states, page 19, "Deposits such as the one found at Orange Hill are 

typically mined using relatively standard open pit, excavator and truck techniques" with 

which we agree. However we are not aware of any open pit mine of this type that utilizes 

10-foot benches. We recommend 40-foot benches with all the advantages to be gainedimproved drilling and blasting, loading, bench maintenance, truck haulage and support 

equipment cost-effectiveness. Also, the selection of equipment does not match the 10-ft. 

bench height mining scenario or the size of the operation. The 992 Cat front end loader and 

the Cat 785 haulage truck are huge pieces of operating equipment. Smaller equipment may 

be operationally more cost-effective. The equipment selection should be more carefully 

undertaken to match the mining conditions and mining rate. 

Mining labor needs are greatly influenced by mining plan and the number of 

operating shifts per day. The latter will be discussed elsewhere. A mining plan requiring 

1O-ft benches and pre-splitting for ore control will be labor and equipment intensive. 

Drilling needs will be significantly reduced by going to 40-ft benches; the number 

of blast hole drill moves will be significantly reduced thereby improving drill efficiency, 

and sub-drilling will be reduced. The efficiency of the higher bench will reduce equipment 

needs by 50%. Eliminating pre-splitting with no other peripheral effects considered will 

reduce the life-of-mine costs, both for operating and capital by $41.5 million. This 

calculation does not address reduction in blasting supplies and improvements in blast hole 

drilling. 

Bench height optimization will also reduce the number of blasting personnel. This 

savings results from elimination need for pre-split hole loading and blasting and in 

reduction of the number of blast holes. No savings calculation has been undertaken here. 

Loading of haulage trucks will be optimized with the improved bench height. 

Loader movements to chase ore will be reduced. Dozers will not be required to push to the 

loaders. Equipment and labor will be reduced accordingly. No impact has been calculated. 

Haulage truck cycle times will be reduced. The impact of this improvement has not 

been calculated. 

The use of a 50-degree pit slope will leave thousands of tons of un-mined ore. The 

face of Orange Hill demonstrates the competence of the material, standing at approximately 

50-degrees over thousands of years. A steeper pit slope can probably be utilized and 

improve reserve volumes and still provide the safety required by MSHA. 

The REPORT utilizes pre-splitting to optimize ore control yet assumes a 10% ore 

loss and a 10% dilution with material having a grade of 10% of the average grade of the 

resource. We are also not aware of any open pit mine that utilizes pre-splitting as a 

method for ore control, water control and slope waste management. The use of presplitting only increases the cost of the operation unnecessarily. Pre-splitting, however, is 

used for final slope definition at the pit limits, although would not be considered in our 

evaluation. 

Twelve percent (12%) road grades are used in the REPORT's mining plan. 

These grades are unrealistic for operations in Alaska. High gradients are dangerous 

when operating in snow/ice or mud-covered road conditions. Wear and tear on 

equipment and tires also becomes exaggerated. 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 4 
307 

We consider that leasing of major pieces of mining equipment along with a 

maintenance contract are important elements for practical purposes. Equipment leasing/ 

maintenance contracting has become a cost-effective operational procedure in the 

industry. 

The Stebbins mmmg plan requires far more equipment than we believe is 

needed for the material mining rate; the elimination of pre-splitting and 1O-ft benches 

will also reduce the equipment needs. For example, the REPORT on page 21, states 

"We anticipate that the mine production.fleet at it's maximum will consist of thirteen 150-

ton capacity rear-dump haul trucks, four 16-cubic-yard (24-ton) capacity front-end loaders, 

jive crawler-mounted rotary drills, four crawler-mounted hydraulic percussion drills, .five 

460- horsepower bulldozers, and twelve diesel-powered lighting plants. Lighting 

plants will be situated at each active face, haul-road switchback, dump point, and at each 

point along the haul route that might require extra lighting (1·uch as the bridge across the 

Nabesna River)." We believe that a more realistic plan will reduce equipment 

requirements by 50% or more thus resulting in lower capital and operating costs. 

MILL AND TAILINGS CONSIDERATIONS 

The REPORT assumes that a typical copper-molybdenum circuitry will be used in 

the recovery process. A regrind circuit has been added to improve recovery and 

concentrate grade. A recovery rate of 71.7% is used for molybdenum and 85.7% is used 

for copper. These rates of recovery are reasonable. 

The coarse ore bin, as mentioned on page 6 of this CRITIQUE and pages 22 and 

30 of the REPORT, is located inside the crusher building so that the process of warming 

the ore to a workable temperature can begin before the material is fed to the crushers. 

Ordinarily, circuits are designed for direct dumping of trucks or loaders into the primary 

crusher; no coarse ore bin is provided ahead of primary crushing. Normal design 

considerations include a crushed ore stockpile to provide for surge needs. The coarse ore 

bin is an unnecessary item and should be eliminated from the design and costing of the 

mill. The cost of this item could not be identified in the calculations other than in the 

floor plan requirements for the building. 

Two ball mills are provided for fine grinding. Hydrocyclone sizing of material is 

incorporated into the circuitry to assure appropriate grinding size. Minus 200 mesh 

material flows directly to the flotation cells. This is a normal circuit, but the use of semiautogenous grinding (SAG) mills and screens is a routine consideration to save on 

grinding media and to improve cost-effectiveness. No cost savings estimate is available 

at this time. 

The flotation process is designed to opt1m1ze recovery of copper and 

molybdenum. Silver is not considered in the REPORT, but should be collected in the 

copper concentrates. The initial circuitry will recover molybdenum concentrates at 3.05 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 4 
308 

tons of molybdenum concentrate with a grade of 56.4% molybdenum per day. Tailings 

from the molybdenum circuit are reground to minus 325 mesh and re-floated to recover 

copper and additional molybdenum. Copper concentrates amounting to 65.4 tons per day 

are produced with a grade of 32.2% copper. The total weight of concentrates is 68.45 

tons. We take no issue with these assumptions and calculations at this time. 

Tailings are thickened and discharged to a selected site at Orange HilL Flows 

from and to the mill are heated to prevent freezing (p.22, REPORT). We do not consider 

that heating will be needed even in the coldest weather; appropriate insulation of pipes 

will eliminate the need for heating. Elimination of heating will have a fairly significant 

impact on costs. The capital costs of installing heaters are approximately $250,000; the 

capital costs of providing insulated pipes will be approximately equal to the heater costs, 

but if not, the incremental cost of insulated pipes will be insignificant when compared to 

the operating costs incurred with heating. The operating costs in the REPORT amount to 

$1.39/ton of ore mined. The operating cost savings here will amount to $86.77 million. 

Mill water operating requirements are estimated in the REPORT at 1,460 gallons 

per minute; 800 gallons will be returned from the tailings ponds. Make-up water will be 

drawn from the Nabesna River or other sources within the boundaries of the claims. We 

do not take issue with this estimate at this time, but further scrutiny is needed. 

Dewatering of the mine will be an obvious need and will have to be considered in a final 

report. 

Power requirements are estimated to be 4,250 kilowatts in the REPORT. This 

demand should be carefully reviewed; initial calculations indicate that the demand will be 

higher than this. Power for the mine and mill, the latter being the predominant consumer, 

will be provided by an on-site diesel-powered generating facility. The power rate used in 

the REPORT is $0.146/kW-hr. This seems low for diesel powered electrical generation. 

Examination of the REPORT's calculations indicates that fuel consumption for 

generation is 6,926 gallons per day; if that is used in the calculation of cost, the 

indications are 

$2.75/gallon x 6,926-;- 24 -;- 4,250 kW.hr ~ $0.187/kWhr. 

Adding lube, maintenance parts and labor to this number will increase the costs a bit 

more to approximately $0.189 per kWhr. The indication is that power generation costs 

will be very high. Quick calculations suggest that the power costs will be about $33.3 

million more than indicated over the life of the mine in the REPORT. The construction 

of a low-head hydropower plant in the Copper River near Slana and building a power line 

would provide for low cost power for the site. It would also provide low cost power for 

residents at Slana and along the power line to the site. A cost analysis is not available for 

this alternative scenario at this time; however, costs are expected to be at the levels in the 

REPORT or slightly less. 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 4 
309 

Locating the mill and tailings at sites other than on the claims will allow for more 

area for overburden storage with less secondary handling. Ore can be transported to the 

mill site by conveyor thus reducing the size of bridges and roads from the claims. Heavy 

equipment required for the operation can be moved in the winter on the ice below the 

bridge. Further, production of dry stack tailings storage would provide stability and the 

opportunity to stack the tailings higher thereby using less area. 

GENERAL 

The REPORT presents a very long development and operating schedule. Eight 

years are allocated to project development followed by twenty-one (21) years of 

operation. A dedicated project could possibly be dedicated sooner, within 5 - 6 years. 

The operating schedule is much too long and strings out the positive cash flow that will 

result from a properly engineered and operated facility. The extended schedule will have 

the effect of reducing the net present value of the cash flow. We believe that the 

development schedule should be compacted to the shortest possible period of time and 

that the operating schedule should be shortened to not more than 15 years. Increasing the 

mining and milling rate to mine and mill all the current reserves in 15 years would dictate 

that the mine and mill be designed to handle 11,500 tons per day or slightly more, 

perhaps 12,000 tons per day. This is a practical and accepted approach to project design 

and evaluation. 

CONCENTRATE HANDLING 

Concentrate handling includes trucking to Valdez and shipment to designated 

ports for onward trucking or rail movement to the selected smelter/refinery. The cost of 

the first portion, mine to Valdez is shown in the REPORT to be $0.68 per ton of ore. 

This is inordinately high and includes excessive road grading and dust suppression 

between the mine and Slana. The portion of the road between Nabesna and Slana is State 

road and will be maintained by the AKDOT&PF5 Grading of the road is assumed to be 

once every 14 days and cost $621/day. The cost of dust suppression is calculated to be 

$2,282 per day. Reducing grading and frequency and confining effort to the Nabesna to 

mine portion will significantly reduce this cost. Dust suppression application is assumed 

to be undertaken once every seven days. This is tremendous over-kill and absolutely 

unnecessary. A good dust suppressant/soil stabilizer, such as calcium chloride, will last 

up to two (2) years; a once per year application in about mid-May to June I should be 

ample to reduce dust migration and significantly stabilize the road surface. We seriously 

doubt, however, that surface soil treatment will be needed at all or at least the 

combination of blading and surface soil stabilization/dust control will not be needed. A 

blade will obviously be needed for snow removal in winter; summer blading in 

combination with water dust control/soil compaction should be the only routine 

5 Communication with Clark Milne. Fairbanks office ofDOT&PF. 5119/08. 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 4 
310 

maintenance needed. The cost of this segment of the operation should be in the order of 

$0.275/ton of ore. The overall savings would become $25,282,935. 

The REPORT recommends that copper and molybdenum concentrates be shipped 

from Valdez to the west coast of the U.S. and Canada, respectively. From those 

respective locations they would be rail- or truck-hauled to smelters in Arizona or 

Endalko, BC. Alternatively, the molybdenum concentrates could be truck-hauled 1,389 

miles from the mine to Endalko. Shipping to the west coast should be reasonable, 

however, materials handling and haulage beyond that point will be quite expensive. The 

direct truck haulage to Endalko would be even more expensive. We can't understand 

why Mr. Stebbins did not consider shipping directly from Valdez to either Japan or 

Korea. Once on the ship or barge, the additional incremental distance-related cost is very 

small compared to truck or rail haulage with the added material handling. There are 

several smelters along the Pacific Rim that can process the concentrates. We believe 

there is a considerable justification to consider shipping to those locations. 

COLD CLIMATE CONSIDERATIONS 

On page 30 of the REPORT, a statement to the effect that "At the mill, the coarse 

ore storage bin is located inside of the crusher building. Doing so initiates the process of 

warming the ore to a workable temperature before it is fed to the crusher circuit, which in 

turn serves to minimize the downtime often encountered when fi'ozen ore must be 

removedfrom the crusher chamber". Again we are not aware of any milling operations in 

Arctic regions of the world that warm the ore to "workable" temperatures. Placing the 

coarse ore storage bin inside the crusher building for warming will require a very large 

building to have sufficient ore storage capacity and heat transfer effect, require much 

additional heating, and reduce flexibility of storage considerably. Warming of the ore 10-

degrees Fahrenheit would require 32,000,000 btu of heat per day at 100% heat transfer 

efficiency. The energy content of a gallon of heating fuel is 139,000 Btu's. At 50% heat 

transfer efficiency, 460 gallons of fuel would be required per day; the daily heating cost for 

heating the ore would be approximately $1,266 or $9,879,073 over the life of the project. 

Road design is another area of concern. Also on page 30, the REPORT states that 

"The road beds, when placed over areas underlain by permafi·ost, are constructed in a 

manner that protects the permqfrost from thermal degradation. As with the buildings, this 

is accomplished by first placing a layer of geotextile material over the smjace. Then, a 

six foot-thick layer of gravel or crushed rock is placed over the geotextile lO serve as a 

.fbundation. Within the area (Y{the claims, the primary haul roads are 72feet wide. The 

concentrate haul road and the tailings facility access road are 40 feet wide. An 

additional JOfoot-wide, three-foot-thick shoulder is added to each side (Yf these road~ to 

reduce the possibility of plastic deformation of the road bed and to further protect the 

underlying surface (Renshaw, 1996)". lt should be noted very little permafrost will be 

encountered in tl1e area of the mine, mill or roads due to the fairly recent withdrawal of the 

Nabesna Glacier, the river bed location, etc. This is an unnecessary and expensive 

exercise. 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 4 
311 

Tailings pipe flow heaters are provided to prevent freezing. This is considered 

unnecessary. Insulated pipes will be adequate to prevent freezing even in the coldest 

weather. 

ECONOMIC EVALUATION 

On page 38 of the REPORT, a statement is made that "1he property is not located 

in any established borough, so no property taxes were applied in the evaluation. " Yet in 

the Cash Flow Analysis in the appendices, both property and severance taxes are shown 

at $5,142,665 and $39,133,893, respectively. There is no borough in the area and no 

State of Alaska property or severance tax provisions apply. We assume that this is a 

mistake and inadvertently added to the costs. Deducting these two items would further 

add to the positive cash flow of the operating property. 

Comments will be made about labor costs and shifts on page 33 of the REPORT. 

In the project design that we 've evaluated, the mine operates eight hours per shift, three 

shifts per day, seven days per week. The mill operates eight hours per sh[ft, three shifts 

per day, seven days per week. It is common practice in Alaska and other mining areas to 

operate two 11 to 12 hr. shifts per day. Even with the additional cost of overtime it is far 

more economic than three (3) 8-hour shifts. The savings result from fewer personnel, 

smaller camp, and general problems associated with a large labor force. We have strong 

disagreement with the three shift per day provision in the REPORT. 

Also, on page 33, " ... a burden rate (){ 78.-12% is includedfbr the hourly 

workers. In addition to social security and Medicare taxes, this burden includes a state 

workers' compensation rate of$7.97 per $100,000 ()[payrollfor all workers. It also 

includes a state unemployment insurance rate qf 3.97%, as well as allowances for paid 

vacation, holiday, and sick lem,e. An examination of the REPORT's calculations 

indicate that the actual burden rate was calculated at 71.82%. The two (2) weeks off is 

included in the burden, meaning that this is paid time off This is highly unusual, 

although with a three, eight hour shift schedule, as proposed in the REPORT, might be 

needed to keep employees in Alaska. Further investigation reveals that all worked hours 

are paid at straight time; overtime must be paid for all hours worked over 8 hours per day 

and 40 hours per week in accordance with state laws. The appropriate State statutes: 

"Sec. 23.10.060. Payment of overtime. (a) An employer who employs employees 

engaged in commerce or other business or in the production of goods or materials in the 

state may not employ an employee fbr a workweek longer than 40 hours or for more than 

eight hours a day. (h) ff an employer finds it necessary to employ an employee for hours 

in excess of the limits set in this subsection, overtime compensation for the overtime at 

the rate qf one and one-ha!f times the regular rate (){pay shall he paid An employee is 

entitled to overtime compensation for hours worked in excess of eight hour a day." 6 

Going to a 2 week on, one (1) week off schedule and working the crews in two II or 12 

"Employment Practices and Worlcing Conditions, Wage and Hour Administration Pamphlet 100, April 

2008. 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 4 
312 

H2T Mine Engineering Sen,ices, LLP 

hour shifts per day would change this scenano considerably, be much more workerefficient, and cost-effective. 

Other problems were observed with the REPORT's labor burden calculations and 

assumptions: 

• Unemployment is calculated at 3. 79% of the total wages paid; the actual rate 

for 2007 was 3.54% on the first $30,100 paid7 

• FUTA is calculated at 2.41% of total wages paid; it should be calculated at 

0.8% of the first $7,000 paid8 

• No liability insurance is included in the wages calculations burden; lack of 

insurance a risky exercise and should be avoided; the rate is approximately 

3. 5% of the total wages paid 

• Medical and dental insurance will be necessary for employees; this should be 

added in the amount of approximately $950/month per employee. 

The end result of this is that the labor rate will increase by about 39.39%; however, the 

reduction in manpower by going to a two shift operation, will reduce the number of 

workers. The REPORT advises that 192 workers are required to operate the mine; a 

two shift operation will reduce requirements to 128 workers. This will reduce labor 

costs by 33.33%; the net increase in labor would be 6.57% considering no other 

efficiencies in the operational planning. 

In addition to a reduction of mining, milling and support labor, we believe the 

administrative staff is far larger than required. Many of the positions can be combined 

such as Personnel Manager and Purchasing Agent, Mine Superintendent and Manager, 

Clerk and Secretary. This reduction would reduce over-all costs by $3,572,100. 

·State of Alaska. Department of Labor & Workforce Development -

http://www.labor.state.ak.us/estaxlfaq/wl.htm 

8 IRS Publication 15. Circular E, Employer's Tax Guide 

Northwest Explorations JV StatyQlent to Sen. Energy Committee 

Hearing on lmplerlu~ntation of ANILCA 

Attachment 4 
313 

JN REPLY REI" l:R TO 

Ll425 (AKRO-L) 

WRST32-1DI 

United States Department of 

NATIONAL PARK SERVICE Alaska Region 

240 West 5lh Avenue, Room 114 

Anchorage., Alaska 99501 

Interior 

Fred Gibson DEC 2 4 2008 

The George R_ Brown Partnership, LP 

4700 First City Tower 

1001 Fannin 

Houston, TX 77002 

Dear Mr, Gibson: 

The appraisal of your property, located in Wrangell St Elias National Park and Preserve, has 

been approved_ The appraisal indicates a fair market value in the ammmt of $290,000,00, Just 

compensation, as defined in Public Lavv 91-646, the "Uniform Relocation Assistance and Real 

Property Acquisition Policies Act of 1970", is the payment of "fair market value" as determined 

by an approved appraisaL The approved appraised value was determined after a thorough review 

and analysis of all pertinent factors affecting the value of your property, including the following: 

1 _ The highest and best use of the property, 

2_ Comparable l:Jona fide sales of properties between private parties, the date of such sales, 

price paid, location and other physical characteristics. 

A copy ofthe appraisal has been sent to you, 

Any increase or decrease in the fair market value prior to the date of valuation caused by this 

project has been disregarded in making a determination of just compensation_ 

Enclosed is a Corporate Offer to Sell Real Prope1iy in the above-cited amount To proceed with 

this proposed acquisition, please have a representative of Northwest Explorations fill in the 

blanks on the middle section of the Offer, including the blank for specification of the document 

authorizing the representative to sign the Offer, and then have this representative sign and date 

the Offer, and have another representative attest the first signature_ Please also, below the line 

which reads "Notice of acceptance of the offer is to be sent to:" provide such address, After 

signing and dating, please return the Offer to this office, along with a copy of the corporate 

document that authorizes the above signatures for the proposed transaction, This Offer to Sell 

becomes a binding contract upon written acceptance by the United States within the time limit 

specified in Paragraph One (1) of the Oiier (one month), 

Northwest Explorations JV Statement to Sen_ Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 5 
314 

Also enclosed is an explanation of section 127 of Public Law 105-277 which requires the National 

Park Service to seek to exchange unreserved public lands before we purchase any lands in Alaska. Please 

read this explanation and then check the appropriate box on the Land Exchange Ce1iification. 

The Ceriification should be signed and returned to this office. 

If you have any questions about this matter, please contact me at the above address or by 

telephone at (907) 644-3426 or by email at Chuck_Gilbert@nps.gov. I will help you detennine 

your rights, and possible eligibility to receive payments, under the Uniform Relocation 

Assistance and Real Property Acquisition Policies Act. 

Charles Gilbert 

Chief, Land Resource Program Center 

Enclosures: 

Corporate Offer to Sell and attached Exhibit A 

NPS Acquisition Policies and Relocation Assistance booklet 

Land Exchange Certification 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 5 
315 

UNITED STATES DEPARTMENT OF THE INTERIOR 

NATlONAL PARK SERVICE 

CORPORATE OFFER TO SELL REAL PROPERTY 

VENDOR(S): Northwest Explorations 

~- ~~---~~· -~--, -~-~-~- ~~,~--~·-~~~~----~-------'"'"~-·-----~<.L . -•--"~'~" -~·--·~·-·~·""" .. ~---~--,_ ____ ,.,._, __ ~~---~--

THIS OFFER CONSISTS OF THE TERMS AND CONDITIONS INCLUDED ON BOTH SIDES OF THIS FORM AND ANY ATTACHMENTS 

convey to States of America and its assigns, the fee simple title to the fot!owing land, with the buildings and 

~lt!1P.~~ the(~n, and a1!.Ilg_h!s, hered!!:?J_r[l§!)!::>..~.~~~s~e!!!§n!§ . ...91Ji!?QQ!:!.t1JJnan~J}].~f~!l!J!.g- belD~~""~-----------­

The real property which the Vendor agrees to convey to the United States of America is located in: 

County Unorganized Borough State Alaska Acreage 363 

Described as fol!ows: Sec F:xhibj_ t A for the legal description 

None 

-r-neTerms-and"cOndiiiOTlS'"Dfihi;'Offe?areas .. tOiimvs:~~-------~ 

(1) The Vendor agrees that this offer may be accepted by the United States through any duly authorized ropresentative, by delivering, 

mal!lng, or telegraphing a notice of acceptance to the Vendor at the address stated below, at any t!me within One { 1) month(s) from the 

date hereof, whereupon !his offer and the acceptance thereof become a bindi!lg contract. ~-, ~~ 

(2) The United States of America agrees to pay to the Vendor for said !and the sum of __!~'?. __ !i~~q~cL~!!Si Ni~~ 

~~1~~~1}.9: Dollars ($ __ ?~~~q.LQ_q__o_.:..Q...~."-~J, {Continued on next page) 

IN WITNESS WHEREOF, -~~·~S?!'"\:E-~.~-~!=: .... E~l?L~?;.~~~o!_lf2:, 

these presents to be signed in its name and behalf by 

as authorized 

Notice of acceptance of this offer is to be sent to: 

The foregoing offer of tho Vendor is hereby accepted for and on beha!f of the United States of America this 

tho said Vendor, has caused its Corporate Seal to be hereto affixed and 

Attest--------------

THE UNITED STATES OF AMERICA 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 5 
316 

FORM 10-820 PAGE 2 

of this offer and approval of the 

the Vendor can execute and de!iver a 

good and generar warranty deed conveying said land 

with the hereditaments and appurtenances thereunto 

belonging, to the United States of America and its assigns in 

fee simple, free and clear from aH !lens and encumbrances 

those speclfica!!y excepted or reserved above, together 

with right, title, and interest of the Vendor in and to water 

rights, banks, beds and waters of any stream 

or traversing the said land, and in and to any alleys, 

ways, strips, gores, or raifroad r!ghts-of-way abutting or 

said land. 

(3) lt is agreed that the United States, at its expense, 

wl!f prepare the deed to the Untted States and obtain the title 

examination of the property to be conveyed. 

(4) The Vendor agrees that all taxes, assessments, 

and encumbrances which are a Hen against the land at the 

time of conveyance to the United States sh<'lll be satisfied of 

record by the Vendor at or before the transfer of title and, if the 

Vendor fails to do so, the United States may taxes, 

asse"'men!s, and encurnbrances which are a the 

land; that amount of any such payments by United 

St8tes sha!! be deducted from the purchase price of the !and; 

that the Vendor at the request of the United States and 

without or tender of the purchase price, execute 

and general wmranty deed to fhe United States, 

pay the State documentary revenue stamp taxes, State and 

local recordation or transfer taxes where required by the State 

subdivision thereof, and obtain and record such 

evidence of title as may be required by the 

United States. 

It is agreed that, at its election, the United Statos may 

deliver the Government check in payment for the above 

conveyance to its title contractor or dosing agent on the 

Vendor's and, the Vendor authorizes said contractor or 

agent to cash check and make disbursements out of the 

proceeds to saUsfy any outstanding Hens and encumbrances, 

pay app!icabfe state and local documentary stamps and 

transfer taxes and other expenses incident to the closing of tit!e 

which are chargeable to the Vendor, and remit the remaining 

balance to the Vendor with a statement of the payments made 

on the Vendor's behalf. 

(5) The Vendor agrees that loss or damage to the 

property by fire or acts of God shaH be at the risk of the Vendor 

until the title to the land and deed to the United States have 

been accepted by the United States through its duly authorized 

representative; and, in the event that such loss or damage 

occurs, the Un!ted States without !iabH!ty, refuse to 

accept conveyance of the or it may elect to accept 

conveyance of title to such property, in which case there shall 

be an equitable adjustment of the purchase price. 

The Vendor agrees that the United States may 

acquire to said land by condemnation or other judicial 

proceedings, in which event the Vendor agrees to cooperate 

with the United States in the prosecution of such proceedings; 

agrees that the consideration hereinabove stated shan be the 

full amount of the award of just compensation, inclusive of 

interest, for the taking of said land; and agrees that any and an 

awards of just compensation that may be made in !he 

proceeding to any defendant shatl be payable and deductible 

from the said amount. 

{7) The Vendor further agrees that from the date 

hereof, officers and accredited agents of the United States 

shat! have, at all proper times, rights and privileges to survey 

and enter upon said property for all lawful purposes in 

connection with the acquisition thereof. 

(8) lt is agreed that the spouse, if any, of the Vendor, 

by signing below, agrees to join in any deed to the United 

States and to execute any instrument deemed necessary to 

convey to the United States separate or community estate 

or interest in the and to relinquish and release 

any dower, or other rights or interests of 

such spouse 

(9) The Vendor represents and lt is a condition of 

acceptance of this offer that no member of or delegate to 

Congress, or resident commissioner, shaJJ be admitted to or 

share any part of this or to any benefits that 

arise therefrom: but shall not be construed 

extend to any 

general benefit 

(10) The terms and conditions aforesaid are to apply 

to 21nd bind the heirs, executors, administrators, successors, 

and assigns of the Vendor. 

(i 1) Afl terms and conditions with respect to this offer 

are expressly contained herein and the Vendor agrees that no 

representative or agent of the United States has made 

representation or promise with respect to this offer 

expressly contained herein. 

(12) As soon as possible after the date of payment of 

the purchase price of th!s offer, or the date of deposit in court 

of funds to satisfy the award of compensation in a 

condemnation proceeding to acquire the real property herein 

described, whichever Is the earliest, the Government hereby 

agrees to reimburse the Vendor in an amount deemed by the 

Government to be fair and reasonable for the foHow!ng 

expenses incurred by the vendor in completing this transaction: 

(a) Recording fees, transfer taxes and similar expenses 

inddenta! to conveying the real property described 

herein to the Government. 

(b) Penalty costs for prepayment of any pre·existing 

recorded mortgage entered into in good faith 

encumbering said real property; and 

(c) The pro rata portion of real property taxes paid which 

are a!tocable to a period subsequent to the date of 

vesting tiHr: in the United States, or tho effective date 

of possession of such rea! property by the United 

States, whichever is earlier. The Vendor agrees to 

furnish the Government evidence that these items of 

expenses have been billed to and paid by him, and 

further agrees that the Government alone shaH 

determine the fairness and reasonableness of the 

expenses to be paid. 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 5 
317 

UNITED STATES DEPARTMENT OP THE INTERIOR 

NATIONAL PARK SERVICE 

EXHIBIT "A" TO OFFER TO SELL REAL PROI'~~RTY 

NPS AREA· WRST 

TRACTNO.: 32--lO\ 

CONTRACT NO 

real prope1iy the Vendor agrees to convey to the United States of America is described as follows: 

Bini, California, Lemon, Orange Hill, Ncbcsna, Glacier, 

Bird Extension No. 1, Lemon 1, Orange Hill No.1, Californian Extension No.2, 

No. 2, Orange! Hill Extension No.2, Lemon No. 3, Copper King North Extension No. 1, Copper King, 

Star, and North Star East Extension No. 1 lode mining and D.C. Sargent mill site claims, designated by 

Surveyor General as Mineral Number 1414A and 1414B, embracing Twenty 

Twenty-One (21), Twenty-Two Twenty-Seven (27) and Twenty-Eight Five North 

Range Fourteen East (RI4E) River Meridiem, being more particularly described that certain 

from the United States of America to Alaska Nebesna Coi]loration, dated August 17, 1923 as Patent 

Records ofthe Fairbanks Recording District, Fourth Judicial District, State of Alaska. 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

AttachmentS 
318 

JN REPLY REFER TO: 

Ll425 (AKRO-L) 

December 24, 2008 

Dear Landowner: 

United States Department the Interior 

NATIONAL PARK SERVICE 

Alaska Region 

240 West 5«1 Avenue, Room 114 

Anchorage, Alaska 99501 

Public Law 105-277, enacted by Congress in the fall of 1998, contains a provision (section 127) 

that requires the National Park Service to seck to exchange unreserved public lands before we 

purchase any lands in Alaska. We need to find out if you have any interest in an exchange rather 

than a purchase. To this end, we have enclosed a short form for your review and signature. 

Please sign and return it to this office as soon as possible. 

To help you in deciding if you have interest in an exchange for unreserved federal lands, we offer 

the following information. 

Unreserved public lands are federal lands that are not already reserved for a particular use. 

Federal lands within national parks, national preserves, national wildlife refuges, military bases, 

and other federal reservations are reserved. Basically, unreserved federal lands are those lands 

managed by the Bureau of Land Management that have been or could be identified for disposal. 

Land exchanges require the completion of a number oftasks, some of which are expensive and 

time-consuming. Required tasks include land surveys, cultural resource surveys, environmental 

assessments or impact statements, and land appraisals. Land exchanges typically take at least 

two years. Landowners are expected to share the costs in conducting land exchanges. 

If you decide you want to exchange your land for unreserved public lands we will work with you 

to identify suitable lands and work through the exchange process. lfyou decide you do not want 

to pursue an exchange, we will proceed as quickly as possible to complete the purchase of your 

property. 

If you have any questions or want additional information about this matter please call me at 907 

644-3426. 

Sincerely, 

·~ 

Charles M. Gilbert 

Chief, Land Resources Program Center 

Enclosure 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 5 
319 

LAND EXCHANGE CERTIFICATION 

National Park Service, Alaska Region 

U.S. Depmimcnt oftbe Interior 

Northwest Explorations owns the following real property in the State of Alaska: 

Those patented mining claims known as Camp Bird, Calilomia, Lemon, Orange Hill, 

Nebesna, Glacier, Camp Bird Extension No.1, California No.1, Lemon No.1, Orange 

Hill No. I, Californian Extension No.2, Lemon No.2, Orm1gcl Hill Extension No.2, 

Lemon No. 3, Copper King Nmih Extension No. l, Copper King, North Star, and North 

Star East Extension No. 1 lode mining and D.C. Sargent mill site claims, designated by the 

Surveyor General as Mineral Survey Number 1414A and l414B, embracing a portion of 

Sections Twenty (20), Twenty-One (21), Twenty-Two (22), Twenty-Seven (27) and 

Twenty-Eight (28), Township Five No.rth (T5N), Ra11ge Fourteen East (R l4E) Copper 

River Meridian, being more particulm·ly described in that certain patent from the United 

States of America to Alaska Nebesna Corporation, dated August 17, 1923 as Patent 

Number 914107; Records of the Fairbanks Recording District, Fourth Judicial District, 

State of Alaska. 

I have been advised by the National Park Service that Section 127 of Public Law 105-277, the 

1999 Omnibus Appropriations Act, requires the Secretary ofthe Interior to seek to exchange 

unreserved public lands before using certain types of federal funds to purchase all or any portion 

of any State, private or other non-fcderalla11ds (or any interest therein) in the State of Alaska. 

Accordingly, the National Park Service offered to pursue an excha11ge of unreserved public land 

instead of purchasing my land, described above. 

l wish to pursue an exchange for unreserved public lands in the State of Alaska. 

[do not wish to pursue an exchange of unreserved public lands in the State of Alaska. 

Print Name 

Representing Northwest Explorations 

Signature Date 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 5 
320 

ORANGE HILL COPPER-MOLY-SILVERGOLD PROPERTY ASSESSMENT, 

NABESNA, ALASKA 

Prepared for 

Northwest Explorations Joint Venture 

Spokane, Washington 

By 

Robert H. Trent, PE, PhD 

Richard A. Hughes, PE 

H2T Mine Engineering Services, LLP 

318 Juneau Ave. 

Fairbanks, Alaska 99701-3768 

May 2009 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 6 
321 

TABLE OF CONTENTS 

EXECUTIVE SUMMARY 

INTRODUCTION 

Location and Access 

Propel1y and Ownership 

Topography 

Mine History 

RESERVES & RESOlJRCES 

Development Drilling 

ENVIRONMENT AND PERMITTING 

INFRASTRUCTURE 

Site Preparation 

Access 

Employee Dormitoty 

Laboratory 

CafeteriaJRecreational Facility 

Oftke 

Central Shop 

Power Supply 

Fuel Storage & Handling 

Remaining Infrastructure 

MINE DEVELOPMENT 

Underground Development 

Surface Mine Development 

MINE OPER/\TION 

Drilling and Blasting 

Loading 

Haulage 

Support Equipment 

Underground Crusher Operation 

WASTE AND T A!LlNGS HANDLING AND STORAGE 

Conveyor System 

Waste/Tailings Handling 

MILLING CONSTRUCTION AND OPERA TlON 

Ore Storage 

Secondary Crushing/Fine Ore Storage 

Fine Grinding 

Concentrate Handling 

Tailings Handling 

Process Water Requirements 

Supply Requirements 

COST AND ECONOMICS 

REFERENCES 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 6 

2 

2 

3 

3 

4 

5 

5 

6 

8 

8 

8 

9 

9 

9 

9 

10 

lO 

11 

12 

12 

12 

19 

20 

20 

21 

21 

22 

22 

23 

23 

24 

26 

26 

26 

26 

27 

27 

27 

28 

30 

32 
322 

TABLES, FIGURES, CHARTS 

Table I. Reserves calculated for the project based on new mining method 

Table 2. Spot metal prices on 9/5/08 

Table 3. Project economics 

Table 4. Resource estimates- Stebbins 

Table 5. Resource estimates H2T 

Table 6. OfHce requirements 

Table 7. Power generation capital and operating costs 

Table 8. Weekly fuel consumption for the Orange Hill Pr()ject 

Figure 1. General layout of open pit operation within claim block 

Figure 2. Cross section through the underground access openings 

Figure 3. Underground crusher station layout 

Figure 4. Underground equipment maintenance shop layout 

Figure 5. Underground water treatment plant layout 

Figure 6. Crusher drift ventilation system 

Table 9. Blasting requirements and cost per standard blast pattem 

Table 10. Mine loader requirement calculations 

Table J I. Calculation oftmck needs 

Table 12. Conveyor segment description and horsepower 

Figure 7. Layout of waste and tailings disposal site 

Figure 8. Plan layout of the project 

Table 13. Mill supply consumption and unit cost 

Figure 9. Mill circuit for the Orange Hill project 

Table 14. Costs and economics of the Orange Hill project 

Chart l. Cumulative Net Cash Flow to Northwest Explorations 

APPENDICES 

A Project location maps 

Al- Alaska map showing project location 

A2- Orange Hill map 2- more detailed road access map 

A3 -Slana to Nabesna road map with topography 

A4 - Slana area map with topography 

A5 C005NO l4E Orange Hill 

A6 C007NO 13E- White Mountain 

A 7- C007N014E Native lot 

B Reserve & Resource Estimates 

B 1 Resource calculations by Adventurine 

B2 H2T Resource volumes 

B3 -Resource and dilution calculations 

C Environmental and permitting requirements 

Cl - LJ\1PT Process (State of Alaska Large Mine Permitting Team) 

C2 LMPT Presentation providing permitting requirements/protocol 

D Mine Capital and Operating Costs 

D 1 Mine Inventory 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 6 

2 

2 

5 

6 

10 

l 1 

1! 

14 

!5 

16 

17 

18 

19 

20 

21 

22 

24 

25 

28 

29 

30 

31 
323 

02 -Mine Capital 

D3 -Mine Operating Costs 

D4- Drill & Blast requirements 

E Labor Requirements 

E l - Labor Requirements 

E2 Annual wages by position 

E3 - Annual wages by year 

F Conveyor Profiles 

G Project Capital and Operating Costs 

G l Cost and Economic Summary 

G2 -Capital Requirements 

G3 - Supply costs by Year 

G4- Mill Cost Details 

G5 Supply Cost Detail 

G6 - Sundry Costs by Year 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 6 
324 

EXECUTIVE SUMMARY 

This report has been prepared at the request of Northwest Explorations Partnership, Spokane, 

Washington and deals with the evaluation of the Orange Hill copper-molybdenum-silver-gold property 

located near Nabesna, Alaska. The property is within the boundaries of the Wrangell St. Elias National 

Park and Preserve created by ANILCA, December 1980. The property is comprised of 18 patented 

mining claims having a land area of363 acres. 

H2T's analysis indicates, conservatively, that the value of the property is very significant. 

The property has been extensively explored and drilled. Early placer miners recovered gold 

from California Gulch in unknown quantities in the early part of the 1900's. A number of companies 

have drilled the property leading to the calculation of various quantities of resources. H2T has 

recalculated resources/reserves based on an innovative materials handling and ore treatment system 

which allowed more effective mining. This calculation determined that 64,451,000 tons of ore can be 

mined by innovative means between the 2900 level and the 3900 foot level of the property. Reserve 

numbers are shown in Table I: 

ITEM VALUE COMMENTS 

Ore tmma'c 64.450.508 Cut off grade of0.2% Cu 

Waste tonnage 235,244,356 Stripping ratio of 3.65 

Total tonnage 299.694.864 

Cu 'rade.% tU09 No dilution 

Mo grade,% 0.031 No dilution 

Ag •rade. opt 0.153 No dilution 

Au grade. opt 0.00234 No dilution 

Table I. Reserves ca!cu!atedfor the project based on new mining method. 

The operating plan for this property considers that ore and waste will be transported off-property 

in order to optimize mining. The White Mountain mine at Nabesna has been selected to be the location 

of the mill and supporting infrastructure. A native lot containing 320 acres located adjacent to the 

Nabesna River and east ofNabesna, in sections 7, 8, 17, & 18, T 7 N, R 14 E, Copper River Meridian, 

has been selected to store waste and tailings from the project. 

Development of the property will be undertaken during a 5-year period. Activities undertaken in 

this period will involve construction of all operating facilities and supporting infrastructure. Power 

requirements will be high; power will be provided by a hydro-power plant constructed near Slana and 

energy transmitted to the mine by a 69kV line built along the right of way between Slana and Nabesna. 

The total initial cost of development will be approximately $383.9 million. 

The mining plan calls for mining from the top down with haulage of almost all ore and waste to a 

raise bored to the surface from underground workings containing a crusher station and supporting 

facilities. Conventional drilling and blasting followed by front end loader loading and truck haulage will 

be employed in the operation. Crushed ore and waste will be conveyed to the surface and transferred to 

an overland conveyor system to move the material to the mill or waste-tailings storage site. Tailings 

from the mill will be dewatered and conveyed to the same location. Mixing of tailings and waste will 

minimize storage requirements and create a neutralizing effect for the waste material should there be an 

acid rock drainage issue. 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 6 
325 

A total of54,740 tons afore and waste will be mined per day; 11,772 tons of this will be ore and 

be transferred to the mill at Nabesna (White Mountain) for a period of 15 years. This shortened mining 

period will improve operating results. 

The mill has been designed to handle 12,000 tons of ore per day. An average of 11,772 tons of 

ore will be treated daily. Two crushed-ore stockpiles are included in the circuit. Tailings will be 

dewatered and fed to the conveyor system for disposal at the waste-tailings storage site, described 

above. Process water will be re-circulated and re-used; treatment to remove the buildup of contaminants 

will be incorporated. Makeup water will be provided as needed. Optimization of circuit design will 

include stockpile and storage bin buffering to assure continuous operation. 

The total operating cost during the operating period will amount to $19.25/ton of ore. Metal 

prices used in the analysis are based on the average spot price on 9/5/08 and are 

METAL PRICE 

Copper, $/lb $3.J.!9.J 

Molvbdenum. $/lb $33.25 

Silver. $/oz $12.72 

Gold. $/oz $808.50 

Table 2. Spot metal prices on 9•5/08. 

The economic parameters of the venture considering this innovative approach are shown in 

Table 3: 

ITEM VALUE COMMENTS 

Net Cash Flow $268.0 Millions. to Northwest Explomtions 

Net present value 'il; 5% discount $43.23 Millions. to Northwest Explomtions 

!RR.% 6.67% Intcma! rate of return to NWE 

Payback. vrs 13.64 From start of project 

Taxes paid $18.28 Millions in all taxes. 

Tah/e 3. Project economics. 

At closure, the project will be reclaimed to acceptable standards. A $10 million reclamation 

bond, as cash 1

, is created during the development period of the mining operation. This front-loads the 

project and creates negative economics, never-the-less is a reality. No reclamation costs are shown at 

the end of the project. Demobilization costs of $3.0 million costs are included at the end of the project. 

INTRODUCTION 

Loc.ation and Access 

By Alaskan standards, access to Orange Hill claim group is comparatively simple. A good road 

leads to within a little more than 12 miles of the site; an RS2477 trail extends from the end of the road 

to Orange Hill over relatively flat terrain. 

Road access to the site from Anchorage includes, driving north to Palmer, then northeast on the 

Glenn Highway to Glennallen. From Glennallen, continue northeast on Alaska State Highway 1 (Glenn 

1 A letter of credit could suffice given bank financing: this would reduce front-loading, but not replace reclamation 

requiretncnts. 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 6 
326 

Highway) until reaching Slana, then head southeast on the Nabesna Road past Devil's Mountain Lodge 

to the White Mountain mine site at Nabesna. The distance between Slana and the White Mountain mine 

at Nabesna is approximately 43.2 miles. Maps showing location, topography, roads, distances and BLM 

records are included in Appendix A From the White Mountain mine, an RS2477 trail leads east to the 

Nabesna River, then south along the Nebesna River to the airstrip and camp site adjacent to the Orange 

Hill claim group. 

The site is also accessible by air. A short landing strip has been in use for years and is located just to 

the northwest of the claims. Originally constructed in 1953, this strip was then I, 700 feet long. 

Subsequent changes in the course of the Nabesna River have eroded the strip and shortened it to its 

current length of approximately 600 feet Approximately 85,000 feet of dozer trails exist on the 

property. The dozer trails provide access from the airstrip, a nearby campsite, and to the various drill 

and adit sites found throughout the property. 

Property and Ownership 

The Orange Hill property is comprised of 18 patented mining claims and one patented mill site. 

The claims are found near the terminus of the Nebesna Glacier, near the nmthem boundary of the 

Wrangell- St Elias National Preserve in eastern Alaska. The names of the claims are shown below 

Lemon No.1 

California No. 1 

Camp Bird 

Camp Bird Ex. No. 1 

Lemon 

Orange Hill 

Orange Hill No. I 

Nabesna 

Glacier 

California 

California Ex. No.2 

Lemon No.2 

Orange Hill Ex. No.2 

Lemon No.3 

Copper King 

Copper King Ext. No.1 

North Star 

North Star East Ext. No. I 

The last four (4) claims were not drilled and are not included in the evaluation exercise although 

they do provide an opportunity to develop limestone resources for use in the mining operation. 

Topography 

Orange Hill itself is a topographic high that rises to just over 600 feet above the east margin 

of the out-wash plain of the Nabesna Glacier. The plain is relatively flat and is approximately 2%-

miles wide at the site of the claim group. The Nabesna River flows north from the terminus of the 

glacier, which is a few miles south of the Orange Hill claims. The out- wash plain in the area of 

Orange Hill is aligned almost directly north/south. 

The eroded face of Orange Hill is relatively steep at a gradient of over I 00% ( 45°). However, 

the top of the hill is somewhat rounded and the terrain levels off from there to the east for a distance 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 6 
327 

of perhaps 2,000 feet. From that point, mountains rise to an eventual height of over 8,000 feet (the 

top of Orange Hill reaches an elevation of3,510 feet). 

Within the boundaries of the claim group, the terrain is seldom flat. Level spots do exist 

throughout the center of the group and the topography, in general, is not steep, but the land consists 

for the most part of rolling rises and depressions. The eroded slopes in California Gulch are quite 

steep, and the mountain faces in the eastern portion of the claim group are typified by significant 

gradients. 

Several streams flow intermittently through the claim group, and for the most part these run 

north/south. Several gulches, including the aforementioned California Gulch, as well as Big Gulch, 

Moly Gulch (which both flow into California Gulch), and Moose Gulch, all represent stream channels 

that carve into the property. 

Most of these gulches, in addition to the west face of Orange Hill, are active erosional 

features and are, as such, almost devoid of vegetation. Brush covers most of the rest of the surface of 

the claim group, although trees extend over some of the central portion, as well as the lower slopes of 

the mountains that rise to the east. 

Mine History 

The U.S. Geological Survey (Mendenhall & Schrader, 1903) reports that gold was first 

discovered at Orange Hill in 1899, and that some portions of the site were staked at that time. The 

first specific recorded activity was in 1911, when Mr. Bud Sargent staked claims to recover gold in 

California Gulch by means of placer mining methods. The Gulch is a drainage that flows north from the 

patented claims. Attention then turned to the copper-molybdenum mineralization signified by the 

coloration of Orange Hill. In 1923, Mr. Sargent sold his claims to the Alaska Nabesna Corporation. 

The corporation spent the next ftve years exploring the area with the apparent intent of identifYing 

and delineating disseminated copper-molybdenum resources. Records indicate that Alaska Nabensa 

drilled at least I 0 holes, and perhaps as many as 20, and that there were other workings already on 

the site as suggested by references to the "Iron Tunnel," in their drill logs. In 1928, the 

Corporation patented 18 claims together with an adjacent mill site. 

Through the depression years, activity was minimal to non-existent at Orange Hill. However, 

World War][ generated a need for metals that renewed interest in the region, which resulted in an 

investigation of the property by the U.S. Geological Survey in 1943. Reportedly, Kennecott Copper 

Company sent a team of geologists to examine resources encompassed by the claims in 1953, based 

primarily upon information contained in the U.S. Geological Survey report. By 1962, the property 

was again under investigation in that Kennecott undertook a drilling program. Bear Creek, in 1964, also 

drilled the property. 

AJV Corporation acquired Orange Hill in 1967 as part of their plan to evaluate the porphyry 

copper-molybdenum potential of the northern flank of the Wrangell Mountains. Three years later, 

they teamed with others to form Northwest Explorations Joint Venture (NWE), and AJV contributed 

Orange Hill to that Joint Venture as its principal asset. During those three years, at least 46 exploration 

holes were drilled in an effort to delineate mineable resources at the Orange Hill property. With a 

resource identified, the Joint Venture then spent the next seven years drilling the property with the 

goals of proving up the extent and the grade of the deposit at Orange Hill, and oflocating additional 

mineralized zones. 

As a result ofNWE's efforts, U.S. Borax and Chemical Company (Borax) took a purchase 

option on the property in 1977, and then undertook their own exploration and resource delineation 

efforts until the end of the 1980 field season, after which Congress enacted the Alaska National Interest 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 6 
328 

Lands Conservation Act (ANILCA). This act established the boundaries of the Wrangell-St. Elias 

National Park and Preserve, and the Orange Hill property is situated within those boundaries. The 

establishment of the Preserve effectively stopped any further deposit delineation and mineral 

exploration work at the property. However, Borax chose not to abandon its interest in Orange Hill 

and instead renegotiated its purchase option, extending it until the year I 995. 

RESOURCES & RESERVES 

Adventurine (Scott Stebbins) calculated resources based on limited operating area, 0.2% copper 

cut off, and inclusion of all drill intervals for silver and gold regardless of whether there were assays or 

not. The results of his calculations are shown in Appendix B 1 and are summarized in Table, 4. 

ITEM VALUE 

Ore. tons 62..168.000 

Waste, tons 227,98-1.000 

Cu. o/o 0.309 

Mo.% 0.031 

Ag.opt 0.091 

Au, opt 0.001 

Table 4. Adventurine (Stebbins) resource calculations. 

Material volumes were re-calculated as a result of the improved ore and waste handling through 

an underground system, storage of waste and tailings off-site, and the construction of the milling 

operation at White Mountain (Nabesna) and different grade-interval calculations. This improved 

material volumes, and improved grades. Silver and gold grades were re-calculated considering only 

intervals with assays; intervals with no entries were considered to have not been assayed. 

The redesign discourages mining to the lower levels that were included in the Adventurine 

considerations, however, optimizes the mining of the ore body. As the project matures, and more data is 

acquired, deeper level mining may become possible; this will require moving the underground facilities 

to the surface and re-installing them there to be functional; we have not considered this option. This will 

become entirely possible as the pit reaches its currently intended lower limit. Although the facilities will 

take some operating room, they should not significantly obstruct the mining of considerable volumes 

below the current level of operation considered in this report. Undertaking the exercise to the extent 

considered in this report provides a reliable indication of costs and economics; extending the effort to a 

finite degree would not improve results significantly. 

Our recalculation of material volumes is based on mining from the 3900-ft to the 2900-ft level 

and within the confines of the property boundaries. Pit slopes were selected to be 50-degrees. No in-pit 

ramps will be left since mining will proceed from top to bottom. The material density used by Stebbins 

was also used in this calculation; tonnage factor calculations indicate that 11.66 cubic feet of material inplace will weigh one ton. Grade and stripping ratio were left the same as in his calculations. A 10% 

dilution with waste-grade material was assumed to be reasonable and included in the calculations. The 

results of our calculations follow: 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 6 
329 

ITEM QUANTITY/VALUE COMMENTS 

Ore. tons 6-1.450.508 Calculated at Stebbins suiooing ratio of 3.65 

Waste, tons 235.24-1.354 

TotaL tons 299.69-1.862 

Ratio. W:O 3.65 Used Stebbins numbers 

Ore grade Cu: 0.286% Considers lOo/o dilution with waste )radc material 

Mo: 0.029% Same 

Ag: 0.142 opt Same 

Au- 0.021 opt Considers 10% dilution with no gold 

Cut-off grade 0.20% Copper 

Table 5. Reserve eslimates based on new mining plan as calculated by H2T 

Appendix B 1 shows Stebbins ore reserve calculation which were the basis for calculation of 

resources by H2T, shown in Table 5, above with volume calculations shown in Appendix B2. 

Development Drilling 

Core and reverse circulation development drilling will be undertaken during the first year of 

development to more carefully delineate the ore body and clearly establish grade. This drilling will be 

on a contract basis. The additional data will provide the ability to further optimize the operating plan 

and economics. Additional delineation drilling may be required, but is not budgeted in this analysis. A 

core processing facility will provide splitting for analysis and further review as needed; one half of the 

core will be stored at the mine site, the other sent to the Nabesna-located laboratory. 

ENVIRONMENTAL AND PERMITING 

Environmental monitoring and data collection will be an initial and continuing part of the 

project. The initial effort will be followed by permitting, expected to be completed by the end of year 

three (3). Environmental baseline monitoring will include a long list of activities, including: 

Surface water quality and quantity 

Groundwater quality and quantity 

Meteorology 

Aquatic life 

Wildlife 

Wetlands 

Socioeconomics 

• Cultural resources native use and remnants 

Subsistence 

• Traditional ecological knowledge 

Visual resources 

Noise 

• Air quality. 

Monitoring facilities will include establishing weather and hydrological stations at Nabesna, the 

Native lot intended to be the waste-tailings storage site, and the mine site at Orange Hill. The weather 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 6 
330 

stations will monitor precipitation, solar incidence, daily temperatures, wind velocity and direction, 

sound, and air quality. Other monitoring efforts will measure stream levels, flow and be sampled for 

quality. All steams that could possibly be impacted by the operation, including the Nabesna River will 

be monitored and sampled for water quality on a periodic basis. An experienced and expert 

environmental consulting firm will be hired to undertake this effort. 

We do not expect to encounter permafrost, but will definitely encounter seasonal frost. The area 

has been covered by the Nabesna Glacier until recently which should have provided insulating cover for 

the areas to be utilized. 

Sampling of the ore body will be undertaken to determine metallurgical conditions and to do acid 

rock drainage characterization. The samples will be tested in an acceptable and licensed facility such as 

McClelland Laboratories Inc., Reno, NV, Kappes Cassiday & Associates, Reno, NV, others. These tests 

will include laboratory scale and bulk testing to determine work index numbers for grinding needs and 

cost determination, flotation testing for recovery data, acid rock characterization, metal-ion 

mobilization, other as needed. The testing will also include humidity cell tests to determine the potential 

of the tailings and waste material to produce acid rock drainage. This data will be fed to the permitting 

and design engineering firms to do permitting and detailed engineering for the facilities. The budgeted 

cost of the environmental and permitting effort has been included at $15 million. 

Permitting efforts will be started in year 2 and continued to completion in concurrence with 

detailed engineering to acquire the necessary permits for the operation. The State of Alaska Large Mine 

Permitting Team process will be utilized to acquire permits. Participants in the process will include 

various state and federal agencies- State Departments of Natural Resources, Environmental 

Conservation, Fish & Game, Transportation and Public Facilities, Commerce, Community and 

Economic Development, Labor, Law, and Federal agencies including the Corps of Engineers, Fish and 

Wildlife Service, National Marine Fisheries, Bureau of Land Management, National Park Service, and 

Environmental Protection. 

The process will include the approval of a number of permits and will have to be conducted in 

accordance with the National Environmental Protection Act (NEPA). The permitting process will 

include the approval of an Environmental Impact Statement to include consideration of hydrology, air 

and water quality, noise, wetlands, fish and aquatic habitat, wildlife, threatened and endangered species, 

socioeconomics, land use, subsistence, cultural resources, subsistence, visual resources, recreation, 

safety and feasibility, and cumulative impacts. This is an arduous process and extensively involves 

public participation. 

A partial list of permits will include the following: 

Operating plan 

Reclamation and bonding 

Waste Management Permits and Bonding 

NPDES permit for discharge of waters 

Sewage Treatment System 

Air Quality Permits 

Fish Habitat and Fish way Permits 

Water Rights 

Right ofWay/Access 

Dam Safety Certification- if a dam or dams are required 

Cultural Resources Protection 

Monitoring Plan 

Surface/Groundwater/Wildlife 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 6 
331 

Dredge and Fill Permit 

Threatened and Endangered Species Act Consultation 

Essential Fish Habitat 

Bald Eagle Protection Clearance 

Migratory Bird Protection 

MSHA Certification 

Explosives Handling Permit 

Spill Prevention Control and Countenneasures Plan 

Stormwater control and mitigation 

Environmental Impact Statement to cover the entire scope of the project 

See Appendices Cl and C2 for more detailed information. 

INFRASTRUCTURE 

The infrastructure required for the operation will be fairly extensive since the operation must be 

fully self-supporting and capable of housing and feeding employees during their assigned period at the 

mine. A two week on, one off schedule will optimize employee numbers. Infrastructure requirements 

will include site preparation, access improvements, employee dormitory, laboratory, cafeteria/ 

recreational facility, office, central shop, power, worker change house, central warehouse, potable water 

and sewage supply, waste handling and storage, fuel storage, other as needed. 

Site Preparation 

We used Stebbins site preparations costs considering that he spent a lot of time doing his 

estimate. The effort will involve preparation of bases for all surface facilities at the White Mountain 

(Nabesna) site, at Orange Hill, the native lot, other. The cost used in this estimate was $2.53 million. 

Access 

Access will include consideration for the road between Slana and Nabesna and roads 

construction and upgrading in the project area. The total cost of local access construction is estimated at 

$4.7 million. This will include an initial application of calcium chloride for dust suppression. Dust 

suppression is included annually during the operation of the project at $279,100. 

Access to the mine site is provided by a good quality dirt road from Slana to Nabesna as 

described above. The department of Transportation and Public Facilities maintains the road between 

Slana and Nabesna and has advised that this activity would be intensified as needed to support the 

operation. 2 Road construction between Nabesna and the mine site and to the waste-tailings storage 

facility will be required early in the project development RS24 77 trails between the various sites at the 

project will be improved to provide efficient travel. Site roads will be constructed along the intended 

location of overland conveyors to facilitate construction of those facilities and power lines and to 

minimize the impact on the area. Site roads will be approximately 23.6 miles in length; 18.1 miles of 

this will be along the conveyor routes, the remainder will include a light duty road from Nabesna to the 

waste-tailings storage facility along a pre-existing road from the Devils Mountain Lodge to the Native 

lot (waste-tailings) site. 

2 Clark Milne. DOT&PF May 2008. 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 6 
332 

Three crossings of Jacksina Creek will be required. Each of these crossings are intended, at this 

time, to include 2 parallel culverts each 10-ft in diameter and 36-ft in length. Hydrologic monitoring 

and precipitation/ run-off analysis may change these assumptions as the project matures. 

One crossing of the Nabesna River will be required. A bridge will be constructed across this 

drainage capable of moving heavy equipment between the mine and the waste-tailings storage site and 

the mill at Nabesna. 

Employee Dormitory 

The employee dmmitory must house employees at site and visitors who from time to time will be 

at the property. Estimates provided by vendors indicate a cost of $2.2 million will be required for this 

facility. The total number of workers at site will grow from 175 to 181 between the I'' and 15'" year of 

operation. A buffer of rooms will be provided for corporate, state and federal permitting, and other 

visitors. 

Laboratory 

A laboratory will be required to do mine and mill sample analysis and undertake metallurgical 

(recovery) testing. An average of sixty-three and one-third (63\'3) holes will be drilled each day. When 

in suspected ore zones, each of these holes will have to be chemically analyzed for copper, 

molybdenum, silver, and gold; other elements may be included in the analysis from time to time to 

assure that valuable minerals, are being considered and recovered. In addition, analysis of concentrates 

from tbe mill and occasional confirmation testing of materials handling streams in the mill will be 

undertaken to provide the control needed for the operation. Development drilling, which will probably 

be undertaken will require laboratory support. Each sample will be dried in a drying oven, pulverized, 

divided into aliquots, and chemically analyzed. Rejects will be stored for a period of time for possible 

re-assay checking should there be an indicated problem with assay returns. The cost of a laboratory 

facility has been estimated at $557,300 by Stebbins; we used his numbers since they appear to be very 

credible. 

Cafeteria/Recreational Facility 

A cafeteria/recreational facility will be required since this is a remote fully self-sufficient mine 

camp. Stebbins costs, amounting to $688,019, were used for this item since his estimate seems 

comprehensive and accurate. 

Office 

Offices will be required for management, accounting, purchasing, internet technical, clerical, 

engineering, surveying and geological personnel. Although a temporary office will be provided at the 

mine for some of these personnel, their main offices will be at the White Mountain site. The total 

salaried compliment at the project at any given time will be 55 persons; however, not all will require an 

office assignment A list of salaried (and other) positions is shown in Appendix E. The positions tbat 

will not need an office will include the expeditor, shift foremen for the mine and mill, the 

chemists/assayers, lab technicians, and mill maintenance clerks. The numbers of these positions add to 

19, leaving office needs for 36 persons. The area requirement calculated by Mr. Stebbins was 120 

square feet per person. This is light considering the need for conference rooms, service areas, and grossup. The needs in square feet are 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 6 
333 

OFFICE REO UIREMENTS AREA,S .FT. 

POSITION NO. PER PERSON TOTAL 

Management 14 187.5 2,625 

Non Mana 1crncnt 22 !50 3.300 

Setvicc 36 3.75 135 

TOTAL 6,060 

Tahle 6. Office requirements 

This is only slightly less than Stebbins calculated needs of 6,120 square feet; his numbers were 

used in the capital cost estimate of $1.04 million. 

Central Shop 

A central shop will be constructed at the White Mountain site to be fully capable of servicing all 

equipment This is intended to be a backup facility in the event that the underground facility at the mine 

becomes temporarily un-useable for any reason. This central facility will also serve to maintain 

equipment at the waste-tailings storage site, the mill operation and other centrally assigned equipment 

including public road vehicles, etc. Stebbins numbers are very well done in this case and are used for 

this facility; the capital cost is estimated to be $803,560. 

Power Supply 

The total power demand for the facilities at the mine, mill, and central facilities will average 

22,126 kW. This is a huge demand and will require significant generating facilities. The cost of 

providing this amount of power required innovative considerations of a number of opportunities to 

arrive at the most economic alternative. 

We considered providing on-site diesel power generation. NC Machinery3 was contacted to 

acquire capital and operating costs for the site. The results drove operating costs, due to very high fuel 

consumption, to exorbitant extremes. This approach was considered prohibitive. 

Our next approach was to consider gas turbine generation with gas provided by the AGIA gas 

line between from Alaska to the L48. We assumed that the line would be constructed in time for us to 

tap that facility. We also assumed that a 100-mile high pressure 6-inch line would be constructed 

between Tok and the mine site. Gas would be provided at $3/mbcf This also became prohibitive. 

Our next approach was to consider building a 25 m W hydro-power generating facility near Slana 

(see Slana Area map in Appendix A4) and constructing a 69kV line in the right of way between Slana 

and the White Mountain and mine sites to provide power. This approach provided much better 

economics due to lower operating costs. The results are set out below: 

3 Lloyd Shanley. NC Machinery. Anchorage 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 6 
334 

HYDRO-POWER GENERA TJON AMOUNT 

Plant construction $50,000,000 

Pmver line construction. $350k!miJe· $13Jl00,000 

Total Capital $63,000,000 

Opcmtino Costs, $/kW-hL $0 015 

Annual generator opcrdting cost $2,946,171 

Power line operating cos1Jvcar $8,J,446 

Table 7. Power generation capitol and operating cost5, 

The Slana general area provides a number of opportunities for hydro power generation. These 

will require a more comprehensive investigation and selling to the local community to move the project 

forward, Potential sites could be constructed on the Slana River, and at a number of lakes near Slana; 

Suslota Lake is an obvious possibility, but needs investigation, The selected site would have to be 

outside the Wrangell St Elias park system. Selling to the local community could include providing 

power to the local residents at cost with charging intended to recover line construction, switching and 

transformers in a reasonable period of time, The utility could qualify for special consideration since the 

quantity of power supplied to the locals would be relatively small. State support through the AlDEA 

loan fund or alternative energy program is a likely probability; this would reduce the front-loading of the 

project considerably. 

Fuel Storage & Handling 

Fuel will be the single most expensive supply item for the project A large fuel storage facility 

will be required for the project At this time, due to logistics, the facility is planned to be constructed at 

the White Mountain site, A minimum of a full week's consumption in storage volume will be 

constructed. An analysis of the consumption indicates an average as follows: 

FUEL CONSUMPTION, GAL'S/WK 

GASOLINE I HEATING I DIESEL 

435 I 3,924 1 24,815 

29,174 

Table 8. Week(vfitel consumplionfor the Orange Hill Project 

A lined and bermed, tank facility will be constructed to store at least one week's consumption of 

fuel. Three 10,000 gallon diesel fuel, one 5,000 gallon heating oil and one 1,000 gallon gasoline tank 

will be included in the facility. Piping, pumping, electrical and metering components will be included 

to assure appropriate control and permitting compliance. Stebbins budgeted $238,470 for fuel storage 

and handling; this seems to be an adequate number and is accepted for this report. 

Delivery of fuel to the mine will be handled with a mine fuel truck. The truck will provide 

fueling to all equipment at the mine as needed. Minimal temporary storage at the mine may be 

necessary to avoid shut-downs due to being out of fuel; a mechanical failure or storm events could upset 

haulage between sites. 

4 Idaho National Labomtory, http:m1ydropower.inl.gov/hydrofacts/plant_ costs.shtml 

' Dryden & LaRue, 2006 · 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 6 
335 

Remaining Infrastructure 

The remaining infrastructure, comprised of worker change house, central warehouse, potable 

water supply and sewage treatment, and garbage handling and disposal, does not need elaborate 

discussion. Suffice to advise that Mr. Stebbins did a reasonably good job of estimating these 

requirements and his numbers, for the most part, were used in the analysis. The exception was water 

supply and sewage treatment and discharge and waste handling. We note that he used a sewage 

treatment plant cost of $72,600; this is very light considering the volume of sewage and the discharge 

regulations. We have assumed a total cost of water supply and sewage handling at $200,000 with an 

annual operating cost of $150,000; this needs further consideration in the engineering, permitting phase 

of the study. 

MINE DEVELOPMENT 

Improving ore body data will be an important front end effort requirement. This will involve an 

early and intensive drilling program intended to further delineate the ore and configuration, grades and 

to provide samples for metallurgical testing. 

For the purpose of this assessment two mining methods were considered, open pit and block 

caving. Block caving was eliminated due to the low recovery possible without caving encroaching on 

Park Service land. It should be noted that the ore body extends beyond the patented mining claims but 

due to Park Service rules these strategic metals cannot be mined and will be permanently lost. 

Open pit mining was selected as the most efficient from the standpoint of mineral recovery and 

economics. The proposed mining plan (Figure I) gives the mining levels in 100-ft. increments as can be 

noted by their color and topographic contours. Elevations ranges involved in the mining process are 

from 2900 ft, (level 10) to just over to 3900 ft. (level 1). 

The open pit operation will be supported by an underground system to handle all minedmaterials to be moved off of the mine property. The underground system will be comprised of an ore 

pass, lower conveyor drift, upper crusher access drift, crusher station, crushed rock conveyor to the 

surface, maintenance shop and water treatment drift. All facilities located underground will be below 

the 2900 ft. level of the ore body. 

Total Mine power requirements will be approximately 1,988 kW and be provided from a 

generating facility located at Slana and transmitted to the mill and mine by 69 kV lines constructed in 

the right of way along the Slana to Nabesna road. Power supply is described in more detail, above. A 

transformer and switching station will be provided at the mine and at other locations in the operation. 

Underground Development 

The arrangement of the underground facilities is shown on Figures I through 6. Location of the 

ore pass and crushers will avoid the need for surface crushing facilities on the limited area of surface 

available on the mill site claim. Heating and maintenance of a surface structure in the harsh winters of 

the Wrangell Mountains is expensive. Maintenance facilities, Figure 4, including warehouse will also 

be located underground for the same reasons as the crushing facilities. The maintenance facility will 

have seven bays for trucks and loaders of both the mine and tailings disposal site. Mine office and 

employee facilities will be located on the surface at the mill site location. The water treatment facility, 

Figure 5, will be located adjacent to the lower crusher drift near the crusher location. Most of the water 

will flow by gravity to the treatment drift. Water not flowing by gravity will be pumped from collection 

sumps. 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 6 
336 

Crushing will be accomplished with two 50-inch gyratory crushers each capable of handling 

2,475 tons per hour of minus 6-inch product. Two crushers are provided to allow continuous operation 

while one crusher is down for maintenance, which can be for several days to weeks for mantle buildup 

or large component replacement. The crushed rock will move from the crusher discharge with an 

armored feeder to the belt conveyor to the surface. Feed rates will depend on mill requirements. 

Once access has been established to the mine site, excavation will begin on the upper and lower crusher 

drifts, crusher station, ore pass, and mine maintenance shops. A surface access road on the claim group 

will be constructed to provide for mine development. 

Access drifts will be 25 ft. wide and 20 ft. high. This size of drift will allow the movement of 

crusher components to the crusher station. Upon completion of drifting, the maintenance shop, crusher 

station and water treatment drift, the temporary ventilation system will be removed and the permanent 

ventilation system installed. See Figures 4 and 6. Ventilation requirements are provided by MSHA 

standard 30 CFR 57.4 761. 

Completion of the drifts and ventilation system will allow the eight foot diameter ore pass to be 

drilled. 

Shop openings will be developed and be 30-ft. wide and 25-ft high. This size is required for haul 

trucks and loader access. The shop openings will include a maintenance warehouse and maintenance 

office. A connection to the lower crusher drift with an escape raise will be included. 

Completion of the underground access facilities will provide for installation of permanent facilities. A 

permanent ventilation system will be installed in both crusher drifts to assure proper air quality to the 

underground. The maintenance shop, water treatment facility, crushers, etc. will be installed at this 

point. This will include foam fire suppression systems and maintenance support equipment. A crusher 

to pmial 42-inch wide conveyor belt will be installed to move cmshed material from the crusher to the 

surface. The conveyor will be suspended from the back in the lower drift and be out of the way of 

machinery movement. Conveyed material will be transferred at the portal to the overland conveyor 

system and sent to intended locations, described below. 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 6 
337 

Figure 1. Genera/layout <~{the open pit operation within the claim block. The colored contours intervals 

represent 100-fl vertical intervals of the ore body. The underground H'orkings are i-;hown in orange. with the ore 

pass shou:n in green. An underground shop, shown m black-dark grey, 1-vi// be provided to minimize surface 

impact. Water treatment o_fa/1 the underground operation. and {[necessary. fj·om the surface 

,~·ill be treated at an shown Access to some ofthe upper portions o_f"the 

will be provided by a road shown in red: road development trill be required to access 

extreme upper _,.,·ection (?[the ore body. Top soil and some 'rvaste storage to be w•ed in reclamation o_(the ,<.,·fte 

will be stored in the blue areas: a total <~l47 acres are availablejhr this· need. 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 6 
338 

UPPER ACCESS DRIFT TO 

TOP OF CRUSHER 

UPPER ACCESS DRIFT TO TOP OF CRUSHER 

LOWER INCliNE ACCESS DRIFT TO BOTTOM 

OF CRUSHER 

INCliNE ACCESS DRIFT 

TO BOTTOM OF CRUSHER 

B·B' 

CRUSHER ACCESS DRIFTS 

NTS 

OR( PAS'S, 

CR 

R 

X-( 

IJI¥T! 

'':T 

X-SEcAT 

CRUSHER RAISE 

A·A' 

Figure 2. Cross section through the underground access openings to the crusher station. 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 6 
339 

NORDBERG MK·II CRUSHERS 

50·65 

FEED OPENING SO" 

DISCHARGE SIZE 6" 

F<OJCF>JT.•lf":, 7'0" 

S[}E V1EW 

DISCHARGE POCKET " TWO TRUCK LOADS UVE STORAGE 

CROSS 5ECTlON \llEW 

CRUSHER STATION 

Figure 3. Layout sketch <~lthe crusher station, showing theji:eder rai:w, cnt.>,;her station layout, cru:·;her 

installation, and apron feeders. Crusher spec(llcations are included. 

Northwest Explorations JV Statement to Sen, Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 6 
340 

~FRESM~lR 

~- RE1'1.1RN,A.m 

m;t;L-'l.AT~ 

i 

ENGINE EXW\.UST IA~ll f.\£ !NTO TliE RE1URN 

AiR VENT SVSTEM 

UNDERGROUND SHOP LAYOUT 

AND VENTILATION 

Figure 4. Underground equipment maintenance shop layout. Ventilation requirementsfor this .facility 

will be high. In order to prevent diesel exhaust.fi'om passing through the access workings. a withdrawal 

ventilation system will be utilized·· hard ventilation tubes will exhaust air from the bays; this will withdraw 

welding gasses and exhaust smoke. 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 6 
341 

WATER TREATMENT DRIFT 

Figure 5. Layout oft he underground -w;afcr treatmentfGcility. The slusher shown in thi.s· drawing }1.!ill 

probably he replaced bJ' a continuously operating electrical motor- chain scraper .system operated automaticaJ1.:v 

and independently through the treatment pitfor withdrmval ofsettled solids. The system will be operated with 

only minimal attendance removal <~lsolido; and maintenance as required 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 6 
342 

-

OWER ACCESS DRIFT TO BOTIOM OF CRUSHER AND 

BELT CONVEYOR 

CROSS • SECTION 

CRUSHER DRIFTS VENTILATION 

NTS 

Figure 6. Crusher dr?fis ventilation 5TSfem. 

Surface Mine Development 

Surface development will involve road access construction, stripping, and otherwise include 

support facility construction that will be needed to facilitate efficient mining of the deposit. 

Development materials will be stored at site, and used to enhance the road between Nabesna and the 

mine and tailings. Top soil will be stored at sites that will be available to reclaim disturbed areas at 

completion of mining; the pit will not be filled or reclaimed- birds like cliff-type nesting sites for safety 

from predators. See Figure I for location of top soil sites. 

The daily mining requirement is designed for 54,700 tons per day. The mining plan is unique in 

that almost all ore haulage is downgrade or level. Level or downgrade ore haulage results in greater 

productivity and improved maintenance on truck components; in fact the level portion of the haul will be 

at higher speeds than the down hill portion due to braking restrictions of the trucks. Production of 

54,700 tons per day will require two rubber tired blast hole drills, two 25-ton front end loaders and six 

100-ton trucks. Maximum haul distance is approximately 3,000 feet. Trucks will be loaded and travel 

to the ore pass. A grizzly at the top of the ore pass will allow any material less than 42 inches to pass. 

Material that is larger than 42 inches will be reduced in size with a hydraulic hammer on a boom. 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 6 
343 

Other equipment required for the operation will include, but not be limited to explosive loading 

trucks, bulldozers, road graders, portable lighting plants, crew trailer, backhoes, small skid loaders, fuel 

truck, a service truck, tire changing equipment, etc. See Appendix D for a list of equipment needed for 

the project 

Equipment selected for mining of the ore body is typical open pit equipment where blasting is 

used. Equipment includes 100-ton haul trucks similar to the Caterpillar 777, 25- ton front end loaders 

similar to the Caterpillar 992, blast hole drills capable of drilling 40-ft blast holes, explosive loading 

trucks, bulldozers for road construction and general mine earth moving, road graders for road 

maintenance, and reverse circulation drills. In addition there will be portable lighting plants, crew 

trailer, backhoes, several small skid loaders, fuel truck and maintenance trucks for tire changes etc. 

Surface stripping and development will be undertaken concurrent with the underground 

development This activity should start in year 4 and become intense in year 5. Activities involved in 

this effort will include access road construction, top soil stripping and storage, bench development, and 

surface facility construction. The pit walls will be constructed at an overall 50-degree angle including 

catch benches, but excluding roads. The material is expected to be competent at a 50-degree angle as 

evidenced by the slopes of Orange HilL 

MINE OPERATION 

The mine operation is structured to comply with acceptable mine operations principles and 

practices. Bench heights have been selected to be 25-ft Equipment selection, as depicted in Appendix 

01, has been optimized to consider operating conditions and production requirements. The operating 

sequence will involve surface drilling and blasting, loading and haulage to the collar of the raise, 

underground crushing and conveyance to the surface overland conveyor system, and support activity at 

the mine, both underground and on the surface. 

Drilling and Blasting 

Drilling and blasting is an incredibly important component of the operation. Good fragmentation 

at the mine site reduces a lot of subsequent operational needs and costs. In this case, primaty crusher 

operation is reduced, conveyor operation is improved, and secondary and additional stage size reduction 

requirements are reduced. Drilling and blasting operations and costs have been calculated on an H2T 

program designed to optimize parameters, see Appendix D4. A I 00-hole blast will provide the 

following: 

ITEM AMOUNT COMMENTS 

Tons broken per I 00-holc blast 86A32 

Supplies (explosives and accessories) $15,525 Based on quotes provided for this study bv supplier" 

Cost per ton of material broken $0.1796 Does not include labor. depreciation. or equipment opemtion costs. 

Table 9. Blasting requirements and cost per standard blast pal/ern 

Sixty three and one third (63\1,) blast holes will be required per shift in order to maintain efficient 

operation. The footage requirement will be 1,853 ft per day. A good drill operator should be able to 

achieve 1,000 ft per shift, thereby providing 54,800 broken tons of broken material per shift, fully 

6 Cochlirt Alaska Pacific Powder. July 2008 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 6 
344 

sufficient to satisfy production requirements. Drilling is provided on both operating shifts to assure that 

the ordinary delays are overcome and that sufficient broken material is provided. Truck mounted drills 

will be able to move from site to site to accomplish drilling needs; however, in order to assure that 

moves, servicing, maintenance, other delays, will not hinder production, three (3) drills are provided to 

assure that drilling can be accomplished cost-effectively. 

Loading 

Truck loading will be by 25-ton capacity wheel loader similar to the Cat 992. The operating 

capability/requirements of a 25-ton loader is shown in Table 10: 

MINE LOADER REQUIREMENTS VALUE 

Loader bucket sL~e, cu v-ds 16 

Cu ft/ton 17.5 

Tons per bucket (pass) 2U 

Passes per tmck 4.0 

Tons per truck 98.8 

Seconds per pass 35 

Passes per minute 1.7 

Minutes per truck 2.3 

Tmck loads per hour (50 Minutes/hr) 21.4 

Tons per hour 2,1!7 

Tons/loader/shift (10-hour shift) 21.!71 

Loaders Required to be operated per shift 1.29 

Table 10. Mine loader requirement calculations 

The calculations in this table indicate that 1.3 loaders will be required per shift. For a 2-shift 

operation, this equates to 2.6loaders. By operating 2loaders on day shift and one on the night shift or 

vice versa to accommodate personnel preferences, production requirements of 54,740 tons per day, will 

be fully satisfied. 

The operating cost of the loader, without labor will be approximately $56. 73/hour. The 

operating cost per ton will amount to approximately 2. 7¢/ton of material loaded. 

Haulage 

Truck haulage of ore and waste material will move material to intended destinations. The 

principal destination will be to the raise to the underground crusher facility. Top soil and some waste 

will be stockpiled at the sites shown in Figure l to facilitate proper mine reclamation at closure. Truck 

requirements are shown in the following Table 11: 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 6 
345 

TRUCK CALCULATIONS VALUE 

Average haul distance. ft 2.500 

Average grade. almost entire distance 10% 

Haula 1c is downhilL speed. mph 18.0 

Ft. per hour travel 95.()40 

Ft. per minute !.584 

Cvclc time. minutes 

Travel time 3.2 

Load time 2.3 

Dump time 1.0 

To1alcvclc 6.5 

Tons per hour/tmck (50 Miuutc hour) 761 

Effective Hrs per shift 10.0 

Tons ocr truck per shift 7.612 

Tons required per shift 27.369 

Trucks required per shift 3.6 

I<rble 11. Calculation oltruck needs. 

The operating cost of a truck, without labor, will be approximately $104.17 per hour. Four (4) 

trucks will be operated each shift to satisfy production requirements. This will result in a haulage truck 

cost of approximately 15.2¢/ton of material hauled, not including labor. 

Flexibility has been built into the scheduling for haulage truck drivers. Water trucks and other 

equipment will be needed for portions of shifts during the dry, warmer months and other periods for dust 

suppression purposes and for various purposes. Five drivers have been scheduled for each shift to 

handle all equipment driving requirements. 

Support Equipment 

Support of the mining operation will include road maintenance, construction oframps and roads, 

drill grade constmction, dump pushing as needed. Three dozers, and three blades, will be provided to 

satisfy these needs. Two operators will be provided for each shift to assure operator coverage. 

Underground Crusher Operation 

As noted earlier, two 54-inch crushers will be provided to accomplish reduction of materials fed 

to the units. This will be necessary to assure efficient conveyance of material to the surface and 

overland to the mill or to the waste-tailings storage site. Ore and waste will be stage-fed to the crushers 

through the raise in a manner that separates the two materials. Flagging of the material or timing to 

assure that there is a separation of the two products will be criticaL Specifics of this exercise have not 

been fully worked at this time, but this is not considered a formidable exercise. The exercise might 

require that material be dumped in stockpiles at the raise collar by type and fed to the raise by a loader in 

material-type batches. Adequate cost and manpower have been allocated to handle this procedure. 

Two crushers will be the normal mode of operation and excepted only when one crusher is down 

for maintenance or repair. 

The cost of crusher operation has not been fully calculated since power is calculated on a 

property-wide basis and this will be a major component of the crusher operation. Cost without power 

and labor will be approximately 11.3 ¢/ton. 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 6 
346 

Crushed material will be conveyed to the surface and dumped on the first overland conveyor for 

appropriate delivery to intended location. This exercise will be described in more detail below. 

WASTE AND TAILINGS HANDLING AND STORAGE 

In order to optimize mining at Orange Hill, reduce operating costs and provide for cost-effective 

disposal of tailings, we investigated the opportunities for off site milling, and waste and tailing storage. 

An obvious solution became readily apparent- a private 320 acre native lot approximately 12.9 miles 

north of Orange Hill on the west side of the Nabesna River. Haulage by truck to the site was considered 

prohibitively expensive, so a conveyor system was considered for delivery of waste to the site. We have 

chosen the patented land at White Mountain (Nabesna) for the treatment of ore. Tailings from the mill 

will be dewatered and conveyed back to the waste-tailings storage site; mixing with waste whenever 

possible will minimize volume requirements at the storage site. The ground materials (tailings) will mix 

well with the coarser waste product to fill the void spaces in the waste and have virtually no impact on 

volume of the waste. This may also have a moderating effect to any tendency of the waste to be acid 

generating -tailings will have a basic pH (9 10.5). Crushing, as provided above, will be required for 

both ore and waste to facilitate efficient conveyor handling. See Figure 8 for a depiction of the 

conveyor layout from the mine to the waste-tailings storage and to and from the mill site. 

Conveyor System 

A conveyor system was developed that would minimize impact to the environment, utilize to the 

extent possible RS 2477 existing trails, minimize capital investment in construction, and provide the 

intended results. Six conveyors beyond the portal of the mine openings were needed to accomplish 

requirements. A belt width of 42-inches was selected considering the size of the crushed product and 

the volume of material to be conveyed each day. The system was designed to handle 3,000 tons per 

hour, leaving some room for expansion should an increase in capacity become apparent at some point 

and to handle fluctuations in throughput. 

A detailed description of each segment of the belt is unnecessary as most of the information 

relative to the system is provided on Figure 8, following. Appendix F provides a profile of each of the 

belts. All but segment 4 will convey materials on a negative grade; this reduces horsepower needs; 

however, rolling resistance, and drive power consumption requires a total of 14,625 horsepower; this is a 

very high demand and virtually eliminated the ability to produce diesel-generated power at the site. 

Tables setting out the details of the belts follows: 

SEGMENT ELEV DELTA, FT. HOR. LENGTH, FT HORSEPOWER COMMENTS 

1 (246) 29.832 3.431 Mine to River 

2 (116) 18.216 2.199 River to Pivot pt. 

3 (57) 8.131 966 Pivot pt. to Transfer 

4 888 19.642 5.4H Transfer to Mill 

5 (138) 16.210 L851 Transfer to Waste-Tailings 

6 (788) 18.374 737 Mill to Tmnsfer 

TOTAL 110.405 14.625 

Table 12. Conveyor segment description and horsepower. 

The total capital and operating costs of the system has been estimated using Cost Mine 

infonnation and other resources. The capital costs are estimated to be $56,097,900. The annual 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 6 
347 

operating costs are estimated to be a total of$20,301,000; these numbers do not include electrical costs, 

again calculated on a property-wide basis. 

Waste(failings Handling 

Conveyor segments 3 6 will have a common collection point, called "Transfer" herein. This 

point will include a carefully designed system to accommodate transfer of ore conveyed on belt 3 to belt 

4 for delivery to the mill. It will also provide for tailings conveyed to this point from the mill on 

segment 6 to be transferred to segment 5, with or without mixing with waste, for conveyance to the 

storage site. It will also provide for transfer of waste conveyed to this point on segment 3, from the 

mine, to be transferred to segment 5 to be mixed with tailings from segment 6. 

Segment 5 will deliver crushed waste and tailings to a stockpile at the discharge site on the 

native lot site. We considered a conveyor stacking system to handle site disposal; however, quickly 

realized that the capital costs involved in this exercise would be prohibitive. We chose instead to utilize 

conventional loader-truck handling for placement. Materials will be dumped at the site in layers 

intended to provide for efficient and cost-effective reclamation- sloping to a 30-degree angle and 

placement of top soil and seeding, etc. A plan view of the site showing ramp and centroid for haulage 

calculations is shown in Figure 7, below. Offsets will be left on underlying benches, as shown, to 

provide for rounding of the heap and altering the slope to the intended final reclaimed angle. 

Figure 7. Layout of waste and tailings pile with ramp and haulage distances used to calculate equipment 

requirements. The heap will reach a height 531,/i. Tailings are assumed to mix easily with waste and not 

increase volume. 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 6 
348 

Figure 8. Plan layout of the project . . 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 6 
349 

A 992 Cat loader (similar size) will be used to load from discharge pile to trucks. The trucks will 

dump the waste-tailings in 100-ft layers on the lot. A two dozers and one blade will be employed as 

needed to construct and maintain the roads and push the dump and to perform ongoing reclamation 

slope work. The blade will also maintain site roads and the road between the site and the transfer point 

and mill and mine. Three (3) trucks will be required from year 1 of the operation to year 7. The length 

of the ramp and overall haul will then require 4 trucks for the period 8 to year 12. Five trucks will be 

required from year 13 to yearl4. Six trucks will be required for the last year of operation. New trucks 

will be added to the needed compliment for all but the last increment; a truck from the mine will be used 

to compliment that need the mine will have neared the bottom, haul distances will be shorter there, and 

spare trucks will be available. 

MILLING- CONSTRUCTION AND OPERATION 

As noted earlier, the mill, central facilities and most of the support infrastructure will be located 

at White Mountain (Nabesna). This site is 12.8 line miles northwest of the Orange Hill mine. The 

conveyor system providing ore to the site was described above. The mill has been sized to handle 

12,000 tons per of ore per day. Moderate changes were made to the Stebbins' flow sheet to handle the 

additional material and to improve cost-effectiveness. The Stebbins' mill flow sheet was designed to 

handle 8,000 tons per day, never-the-less, was over-designed in some parts of the process. We will not 

compare one to the other, but present our design considerations. Figure 9 shows the mill circuitry 

proposed for this operation. 

Ore Storage 

A 12,000 ton live-storage stockpile will receive ore from conveyor segment 4. The live and dead 

storage will be approximately 20,000 tons. This will allow for intetmittent disruptions to the material 

flow and still maintain continuous mill operation. Four apron feeders will withdraw ore from the 

stockpile to feed material to the transfer conveyor then to the screening plant; the screening plant will 

separate coarse product for secondary crushing. Four multi-deck screens will provide adequate capacity. 

A second, crushed ore storage facility will be provided for fine ore to assure continuous 

operation. Material provided to this facility will come from the secondary crushing plant and be 

comprised of minus V,-inch product. Dust control will be important at this facility. The secondary 

storage facility will be the same size as the primary storage facility, above. This will provide for 

fluctuations in the source, and intermittent supply sources. 

Secondary Crushing/Fine Ore Storage 

Two 5.5-ft short head crushers will receive plus 'h-inch material from the screening plant. Each 

crusher will be driven by 500-hp motors. We estimate that 75% of the material will be delivered to the 

secondary crushers. 

Fine Grinding 

Minus one-half inch crushed ore will be delivered by conveyor to the fine grinding mills. Two 

16' x 28' ball mills, each driven by a 2500-hp motors will grind the ore feed to 80%-200 mesh. Ground 

product will be sized by hydro-cyclone separation with overflow delivered to a bulk sulfide concentrate 

flotation section. 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 6 
350 

Concentrate Handling 

Flotation of sultides will be used in the concentration process. A bulk sulfide concentrate with 

sodium cyanide pyrite suppression will produce a copper-moly rich concentrate. A subsequent recovery 

circuit will separate moly (molybdenum disulfide) from the copper concentrate. The moly concentration 

process will involve re-grinding to produce optimum recovery. Moly concentrates will be pumped to a 

thickener. The thickened product will be pumped to a disk filter to produce a moist concentrate. The 

product will dried and conveyed to a bin. Super sacks will be filled from the concentrate bin and stored 

in appropriate location outdoors or in a shed to protect them from damage and moisture collection. 

About 4.4 tons of moly concentrate will be produced daily. 

Tailings from the first section will be copper-rich and be delivered to a thickener to produce a 

thickened product. This will be pumped to a disk filter to produce a moist product for drying through 

rotary dryers. The dried, copper concentrates, will be conveyed to a bin for super sack loading. About 

89.6 tons of dry copper concentrate will be produced daily. 

The association of gold in the ore is not known. A pyrite association is possible; we have 

assumed, for purposes of our design, that the association is with copper (as chalcopyrite). This 

association will have to be understood. A pyrite association will drive the need for an upgrade to the 

circuit to provide for recovery of gold. This will require regrind and chemical treatment. In addition, a 

gravity circuit may be required to assure coarse gold particle recovery. The cost of this modification 

will not materially change the cost of the mill. 

Tailings Handling 

The underflow from the bulk sulfide flotation process will be tailings from the recovery 

processes. It will be pumped from the flotation section to a thickener. The thickened product will be 

pumped to four parallel 13-ft. disk filters to produce a moist tailings product containing about I 0% 

water. The moist product will be conveyed to a 6,000 ton inside storage bin. The bin will feed a 

transfer conveyor to feed belt 6 of the overland conveying system, described earlier. The transfer 

conveyor will also be configured to discharge into an exterior stockpile. The combination of bin and 

stockpile storage will provide the flexibility of continuous operation and upsets in product conveyance 

integrity/operation. The average tonnage of moist tailings conveyed to the storage facility on a daily 

basis will be 12,976 tons. The moist tailings will contain about 311,000 gallons of water per day. 

Process Water Requirements 

The mill has been designed to almost completely re-circulate water. Feed requirements will be 

approximately 5,242,000 gallons per day at 35% solids requirements in the process. Water loss in 

tailings and from drying of concentrates will result in a loss of about 313,700 gallons per day. Effective 

settling of solids will be an important requirement to assure that there is no buildup of solids in the water 

and slurry pumping system. Also, anti-sealant treatment will be required to assure that calcium 

carbonate and other compounds (anhydrite, etc.) do not build up in pipes and pumps. Supernatant water 

will be pumped to the process water storage tank located in a strategic location outside of the mill 

building. The tank will be insulated and the heated to increase the water temperature by an average of 

2.5° F to prevent freezing. The tank will be sized to handle the initial process requirements to fill all 

components of the system plus a reasonable surplus; initial calculations indicate that this storage 

capacity is 537,000 gallons. 

Initial and makeup water requirements will be supplied from the White Mountain mine and 

drainages in the area. No initial treatment is anticipated to remove contaminants as the process will 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

AttachmentS 
351 

ORANGE HILL PROJECT N011hwcst Explorations 

provide neutralization. However, testing will be required to assure that there are no detrimental effects 

that could be caused by any possible contaminants. 

Supply Requirements 

The consumption of supplies is been based on quotes received for this report, the Stebbins' 

report, and other sources. Actual consumption will be dependent on thorough testing and ongoing 

metallurgical testing of concurrent mill feed. Unit costs are based on quotes supplied by Alaska-based 

suppliers, on State of Alaska research, and on Stebbins' sources. Table 12, provides pertinent data: 

Mill Supply Consumjltion/Costs Lbs/orc 

Table $/lb ton $/ton 

Quick lime. lbs 0.175 1.900 0.33 

Xanthate collector. lbs 0.75 0.300 0.23 

Frother.lbs 0.50 0.080 O.tl4 

NaCN.lbs L!O 0.300 0.33 

Diatomaceous earth, lbs 0.275 0.001 0.00 

Grinding media. lbs 0.408 1.762 0.72 

Mill Liners. lbs. 0.408 0.220 0.09 

TOTAL 1.74 

Table 13. Mill supply consumption and unit cost. 

AJU'il2009 
352 

1'zgure .. 9 . JV1, u 1·11 · circuit • for the Orange Hill project. 

Northwest Explorations JV Statemen. I to Sen Energy Committee f A.NILCA 

Hearing on ImplementatiOn o 

Attachment 6 
353 

COST AND ECONOMICS 

The mine costs and economics are based on a 5-year development period followed by a 15-year 

operating period, in turn, followed by reclamation and demobilization over a !-year period. All costs 

are calculated at constant 2008 dollars throughout the mine life and are reported on an accrual basis. 

Total project life is 21-years. Capital expenditures during the development period amount to $383.9 

million. The NWE management costs are expensed during the development period and amount to $22.9 

million. Operating costs during the operating period average $19.65 per ton of ore treated. Additional 

capital items, particularly haulage trucks, will be purchased as haulage distances become longer at the 

waste-tailings storage facility; the expenditures relating to those acquisitions will amount to $2.9 

million. Overhaul expenditures amounting to $167.3 million are accrued throughout the life of the 

project; these accruals are sustaining capital and would be treated as capital in nature; however, they are 

reported as expenses in the calculations due the method of determination. The resulting tax differences 

will be inconsequentiaL 

Capital and operating costs were largely determined from Cost Mine7 costing methods purchased 

for this project The costs reported by this system were increased by a reasonable factor to obtain 2008 

costs. Other sources of costs were from local vendors and from State of Alaska cost detetmination the 

State undettakes detailed checking of operating costs in the oversight of reclamation costing by 

operators in the state (these costs served as a reliable comparison). 

Economics and taxes were determined by a program developed by the State of Alaska to 

calculate mine project taxes and owner/operator economics. The project is located on private land 

which dictates certain tax calculations. We have assumed, for legal purposes, that NWE would become 

incorporated, making it subject to State income tax provisions; State corporate income taxes are 

inconsequential due to loss carry-forward and carry-back provisions. Mining license taxes also apply to 

the project and require payments of$6.77 million over the life of the project The project is not within 

the boundaries of a borough- no borough taxes apply. Federal corporate income taxes were calculated 

to be $11.51 million. Costs and economics are summarized in the following table: 

ITEM VALUE COMMENTS 

Capital expenditures, total $386.7 M Includes additional trucks for 'vaste haulage 

Operating costs_ total $1,266.7 M Includes pre-development and post opemting costs 

Opcmting costs, per ton $19.65 During the operating period 

Taxes paid $18.28 M Mining License Taxes onJ., 

Net Cash Flow to NWE $268.0M Total cash flow to Northwest Explorations 

IRR.% 6.67% Internal Rate of Return to NWE 

NPVtft5% $H23M Net present value discounted at 5% to present dollars 

Payback period, vrs. 13.64 

Table /4. Costs and economics o{lhe Orange Hill project. 

Appendices in section G show details of capital and operating costs for the project with the 

exception oflabor costs that are include in Appendix E, above. Appendix G 1 presents a summary of 

costs and pertinent economic parameters; this appendix does not show economic parameters after taxes 

these parameters are shown in Table 14, above. Appendix G2 shows capital costs in detail for the 

project; capital needs after production commissioning are included. Appendix G3 shows supply by year 

-this appendix does not consider year-to-year variation; however, the variations are included in the 

See ·'Cost Mine" in references section. http://calc2007.costs.infominc.com/ 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 6 
354 

calculations. Appendix G4 shows details of capital and supply cost requirements for the mill operations. 

Appendix GS shows a summary of supply cost calculations; this appendix includes accruals for capital 

overhaul items- these items are ordinarily considered capital, but due to the nature of the operating cost 

calculation methods, are included in operating expenses. The significance of this consideration is inconsequentiaL 

Chart 1 shows the net cash flow to owners and government for the commissioning of the project. 

NCF TO NWE AND TAXES PAID, CUM 

400 

300 

200 

~ 100 

~ 

:E N 1'- 1'-

(100) 0 0 

g g 8 

N 

(200) 

(300) 

(400) 

(500) 

Year 

--GovtTake --NWE-NCF 

Chart!. Net cash flow (cumulative) to Northwest Explorations as calculated hy Stale of Alaska mine economics 

program. 

Not in-consequential is that the operation will contribute $6.77 million in taxes to the State of 

Alaska in mining license taxes through the life of the project. 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 6 
355 

ORANGE HILL PROJECT N011hwcst Explorations 

AUTHOR 

Burgess, Jack. PE 

Butler, Robert B. 

Cocl1lin. Dennis 

Dl}·den & LaRue. 

Inc. 

Ellis. Cody 

Gcrondalc. Chad 

Gibson, Herb 

Graham. Dave 

Holland. Rick 

Hudson. Wilbur G. 

McGregor, Wallace 

Mciling. Paul 

Milne, Clark 

Milne. Clark 

NordelL LawiCncc 

Sec, Mark 

Shanley, Lloyd 

Smith. Mike 

Stebbins. Scott, PE 

REFERENCES 

REFERENCE 

Material Properties. i):\1I:>\1ining Reference !Tandbook, Raymond Lmvric. PE. Editor. 

SME, 2002. 448 pp. 

"Architectural & Engineering Calculations manual", McGra.w Hill. 1984. 

"Feasibility Cost Estimate Explosives Pricing. Surface Products". Alaska Pacific 

Powder Co .. letter dated July 28. 2008. 

"Power Line Construction and Costs". NoYembcr. 2006. AMA Convention 

PowerPoint Presentation. 

Weather Conditions. Nath·e Lot, Flight to Orange Hill. Sept 08 

Hitachi. Mining Equipment Availability and Costs. Telephone communication. 

December 2008 

Underground Mining Costs, Cowin & Company. Telephone communication. Jan 2009. 

Caterpillar. Mining Equipment Availability and Costs_ NC Machinery. Telephone 

communication_ December 2008 

"Chemicals and Reagents Availability & Cost", UnivarUSA Inc .. 8/19/08 emaiL 2 

pages. 

11Convcyors and Related Equipment". 1950. Jolm Wiley & Sons. NY. pp. 185 • 239 

..Orange Hill Property Profile''_ Northwest Explorations, PriYatc infonnational paper, 

no date. 

Surface Eyaluation Appraisals. Visit to Orange Hill, September 08 

"Road Dust Suppression", Oral Communications. 5/20/08 

"Road Maintenance From Slana to Nabcsnan DOTPF. Oml communications. May 

2008. 

"A New Era in Qycrland Conveyor Belt Design" E&MJ, Apr_ 1999. 

Redpath Mining Costs. E-MaiL Telephone Communication. Jan 2009 

"Cost of Power Generating Facility". NC Machincl:)··. 3/25/09, Telephone contact 

Mine Camp Catering Costs. Alaska Minerals Inc., Telephone Co nun. Dec. 08 11Mineral Property Characteri/.ation & Resource/Reserve Dctennination for the Orange 

Hill Copper-Molybdenum Deposit". NPS. January 2008 

Mine and Mill Equipment Costs. An Estimator's Guide. 2007. Cost :\fine, Spokane. 

\..Vashington 

"Caterpillar Pcrfonnancc Handbook" Ed. 36. Caterpillar. Peoria. !L, January 2008. 

!!Hydropower. Plant Costs and Production Expenses!! Idaho National Laboratory. 

http://hvdropo\ver.inl.gov/hydrofacts/plant costs.shtrnl 

Komatsu. Mining Equipment AYailability and Costs. Telephone communication, 

December 2008 
356 

Ms. Helen Honse 

U.S. Department oflnterior 

Appraisal Services Directorate 

Pacific Northwest Offrce 

P. 0. Box 2965 

Portland, Oregon 97208 

LAWRENCE V. ALBERT ATTORNEY AT LAW 

P. 0. BOX 200934 

ANCHORAGE, AlASKA 99520 

TELEPHONE (907) 243-2!7<=. 

FAX (907) 243-5476 

December 16, 2009 

Re: Northwest Explorations JV--Orange Hill Patented Mining Claims 

Wrangell St. Elias Park, Alaska--Valuation for Voluntary Acquisition 

Dear Ms. Honse: 

l have been retained by Northwest Explorations JV (NWE) to evaluate the Interior 

Department's 2008 fee appraisal on the Orange Hill property located within the Wrangell 

St. Elias National Park & Preserve, Alaska (WRST). Mr. Meiling opines the highest and 

best use for the property is recreation rather than minerals development. 

My review has focused on your office's compliance with federal appraisal standards for 

real property acquisitions, along with criticism of the Interior Department's practice on this 

subject. My opinion, set forth in the attached submission, is that the 2008 fee appraisal does 

not meet US PAP standards along with the requirements of the Uniform Relocation 

Assistance and Real Property Acquisition Policies Act of 1970. 

NWE has obtained an independent assessment of the economic feasibility of mining 

the Orange Hill property. H2T Mine Engineering estimates the market value of the 

property to be $45 million in 2008 dollars using the discounted cash flow method. A copy 

of that report is enclosed for your consideration. 

Clearly, there is a difference of opinion between the H2T and Aventurine reports on 

the feasibility of Orange Hill mineral development. Given this dispute, NWE recommends 

non binding arbitration in order that NPS' 1990 policy for WRST mining claim acquisition 

be effectuated. As stated in the attached submission, federal law and Interior Department 

policy authorize alternative dispute resolution. On behalf ofNWE, we look forward to 

discussing this proposal with your office. 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 7 
357 

ends 

Please note that I will be absent from my office berween December 21-29, 2009. eely, 

~(lwN{'~L Lawrence V. Albert 

Attorney at Law 

cc: Norrhwest Explorations JV 

2 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 7 
358 

Northwest Explorations JV Submission to 

U.S. Department oflnterior, Appraisal Services Directorate 

Re: Deficiencies in Appraisal Process of Orange Hill Mineral Property 

December 2009 

Introduction 

This submission documents deficiencies in the Interior Department's appraisal 

practice and land acquisition policy associated with the Orange Hill mineral property 

located with in the Wrangell St. Elias National Park & Preserve (WRST), Alaska. 

Northwest Explorations (N\VE) has been attempting to realize fair valuation of its 

mineral deposit for 20 years without success. This submission demonstrates the National 

Park Service (NPS) and the Appraisal Services Directorate (ASD) have failed to provide a 

fair mineral valuation and therefore requests that valuation be resolved through arbitration 

or mediation. NWE's only recourse is to pursue takings litigation or seek condemnation. 

I. Property History 

The Orange Hill property comprises a group of 18 patented mining claims located 

southeast of N abesna in interior Alaska. The property was discovered early in the 20'h 

Century and the claims were patented in 1928 by the AlaskaN abesna Corporation. The 

mineralization is porphyry copper-molybdenum and extends beyond the boundaries of 

363 acres comprising the claim block. Commencing during the Second World War, the 

U.S. Geological Survey and thereafter various companies undertook exploration programs 

of the Orange Hill mineralization. 

Modern ownership and exploration effort trace from when the AJV Corporation 

(now Geo Enterprises, Inc.) acquired the property from the Alaska Nabesna Corporation. 

Thereafter, the AJV Corporation conducted exploration of the property in conjunction 

with regional exploration of theW rangell Range. The exploration resulted in the 

company expanding the area of its holdings contiguous with the Orange Hill patented 

claims to include 99 unpatented claims. In 1970, the AJV Corporation organized the 

Northwest Explorations Joint Venture (NWE), with the participation of Brown & Root, 

Inc., Highland Resources and the Louisiana Land & Exploration Co. 

The focus of the venture activity was diamond drilling the Orange Hill property 

with the result that by 1977, the venture had delineated a major deposit of copper, 

molybdenum, silver and gold and thereupon, entered into an Exploration and Option to 

Purchase Agreement with Pacific Coast Mines, a subsidiary of U.S. Borax and Chemical 

Corporation. The agreement provided for minimum cumulative expenditures of 

$800,000 over a five year period and purchase terms of $2,000,000 cash and a 2.25% 

h I . 1 . Nor! west Exp orattons JV Statement to Sen. Energy Commtttee 

Hearing on Implementation of ANILCA 

Attachment 7 
359 

royalty on net smelter returns from production. 

Mobilization of drill rigs began in 1977 before the agreement was finalized. In 

1978 U.S. Borax expanded the scope of exploration, considerably exceeding the annual 

work commitment. After the close of the 1978 field season, a Presidential Proclamation 

declared the area aN ationall'v1onument which placed a moratorium on all mineral 

activity on the unpatented claims. Though the parties acknowledged that the objectives 

of their agreement had been frustrated by the monument withdrawal, nonetheless U.S. 

Borax elected to continue exploration drilling that was confined to the patented claims 

and which focused on the potential of the high-grade skarn mineralization. 

Based upon encouraging findings in 1979, U.S. Borax acquired an option in 1980 

to secure additional unpatented mining claims within the area of influence of the option 

agreement and continued the program of helicopter supported drilling. After the passage 

of ANILCA in December 1980, the Exploration and Option to Purchase Agreement was 

amended in 1981 providing for an extension of the option period 13 years to 1994 with 

annual escalation of the cash consideration to $3.6 million subject to adjustment by the 

price index of non-ferrous metals. 

By 1980, the Orange Hill property and surrounding unpatented claims had been 

subject of more than ten annual drilling campaigns that resulted in 80 holes and a total 

depth exceeding 30,000 feet. U.S. Borax in 1979 estimated the deposit to contain 115.7 

million tons of resource at 0.308% copper, 0.014% molybdenum and 0.175 oz/ton silver. 

Based on this estimate of deposit size and tenor, Orange Hill's contained copper of .32 x 

106 million metric tons placed it in the upper 25'h percentile of the 1,342 largest copper 

deposits worldwide according to a USGS study in 1995.1 

II. ANILCA, the Park Service and 1985 Court Injunction 

In December 1980, Congress enacted the Alaska National Interest Lands 

Conservation Act (ANILCA), creating the vVRST and subjecting the area to NPS 

surface management.2 ANILCA preserved valid existing rights for prior mineral entries 

and in-holdings such as Orange Hill.3 However, Orange Hill became subject to the 

Singer, Donald. 1995. VVorld Class Base and Precious Metal Deposits--A 

Qyantitative Analysis. ECONO;VIlC GEOLOGY, v. 90, pp. 88-104 (Fig. 13: contained 

copper content distribution of copper bearing deposits, measured in metric tons). 

Pub. L. No. 96-487 § 201(9), 94 Stat. 2371,2381 (1980). 

Id., § 206, 94 Stat. 2384, codified at 16 U.S.C. § 410hh-5. 

. 2 . Northwest Explorations JV Statement to Sen. Energy Comm1ttee 

Hearing on Implementation of ANILCA 

Attachment 7 
360 

Mining in the Parks Act. 4 This legislation manages the surface estate of mining claims 

even though a patented claim owner has fee title to the surface and mineral estate. 

In 1985, an environmental group sued the NPS for failure to undertake cumulative 

impact assessments associated with mining operations in the vVRST. The U.S. District 

Court entered a preliminary injunction in July 1985 prohibiting the NPS from approving 

further mining operations and required the agency to prepare an EIS on the cumulative 

effects of mining operations.' The preliminary injunction was affirmed by the Ninth 

Circuit Court of Appeals on appeal 6 and a permanent injunction followed. 

In October 1986, the Director of the National Park Service approved a General 

Management Plan/Land Protection Plan for theW rangeli-St. Elias National Park and 

Preserve. The Plan identified the Orange Hill property for acquisition and further noted 

the property had high future development potential.' NWE decided to acquiesce to the 

Park Service's objectives in the 1986 Management Plan due to the injunction and 

congressional policies in both ANILCA and the Mining in the Parks Act that were 

elaborated in the 1986 plan. By mutual agreement, the managements ofNWE and U.S. 

Borax terminated the Exploration and Option to Purchase Agreement. N\VE thereafter 

terminated its holding of the contiguous unpatented claims realizing that mineral 

development would not occur. 

The Park Service took four years to prepare its EIS on the cumulative effects of 

mining in WRST. In November 1989, NPS released its Final EIS. 8 Its preferred 

alternative and proposed action for NEP A purposes was to acquire all mining claims 

within \VRST subject to the Park Service's continuing authority to regulate mining 

16 U.S. C.§ 1901, et seq. 

Northern Alaska En·vt'l Center ·v. Hodel, No. J85-009, Memorandum & 

Order (D. Alaska, filed July 22, 1985). 

Id., 803 F.2d 466 (9'h Cir. 1986). 

U.S. National Park Service, General Land Management Plan, Land 

Protection Plan and Wilderness Suitability Review, W rangeli-St.Elias National Park & 

Preserve, Alaska 99 (1986). NPS' statement regarding Orange Hill's high future 

development potential came from a table in the plan draft. 

U.S. National Park Service, Alaska Regional Office, Final Environmental 

Impact Statement, Cumulative Effects of Mining, Wrangell St.Elias National Park & 

Preserve, Alaska, November 1989. 

Northwest Explorations JV StatJment to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 7 
361 

operations. NPS then issued a Record of Decision in August 1990 wherein it declared an 

official policy for acquisition of mining claims within \VRST.'' 

Following the 1985 injunction, commercial mining operations has ceased in all 

units of the National Park System in Alaska. Thus, notwithstanding several requests for 

approvals to operate, the NPS has basically prohibited mining in the WRST and other 

Park System units in Alaska. The Park Service does not officially acknowledge a 

prohibition on commercial mining activity because to do so would establish a regulatory 

taking. Instead, the agency maintains the illusion that mining operations might be 

allowed upon submission of an administratively complete plan of operations that complies 

with its surface management authority. 

The cumulative effects methodology employed in the EIS' required under the 

court injunction commonly employed a surface disturbance criterion measured against 

"Resource Protection Goals." Where the RPG's had been violated for one or more 

habitat types or surface management values, and typically these had been violated in the 

Denali and \VRST parks, then further surface disturbance due to new mining operations 

would only exacerbate the previous violations, and therefore, could not be approved in 

order to adhere to Mining in the Parks Act policies. 

Even prior to ANILCA, the Park Service understood that Orange Hill had 

significant mineral potential. In 1973, as part of the ANCSA Section 17(d)(1) studies on 

potential national interest lands, the Park Service prepared a report wherein it noted the 

Orange Hill and Bond Creek deposits contained 400 million tons of 0.4% copper and 

estimated an in situ value of $1.6 billion in 1973 dollars. 1° Further, in a draft version of 

NPS' 1986 General Management Plan for WRST, it noted Orange Hill contained 400 to 

1,000 million tons of minerals, included an assembly of 3,000 acres of unpatented claims, 

and had high future development potential. 

III. NWE's Difficulties in Obtaining a Mineral Appraisal 

NWE has repeatedly expressed interest in Orange Hill's sale to the government 

once NPS established its policy of property acquisition. It took the Park Service ten years, 

U.S. National Park Service, Alaska Regional Office, Record of Decision, 

\Vrangell St. Elias National Park & Preserve, Final Environmental Impact Statement--

Cumulative Effects of Mining 3, August 21, 1990. 

10 U.S. National Park Service, Alaska Planning Group, \Vrangell St. Elias 

National Park, Alaska: Master Plan 53 (1973). 

Northwest Explorations JV Stat~ment to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 7 
362 

i.e. from 1990 to 1999, to authorize an appraisal on Orange Hill. In 1999, NPS wrote to 

N\'VE to indicate that it had contracted with a consultant named Onstream Resource 

Managers to appraise the mineral estate. The consultant met with NWE for this purpose 

in the fall of 1999 and was provided an opportunity to examine the extensive exploration 

and geologic information compiled on the property. After a meeting and site visit, 

Onstream informed NWE it did not have a contract to value Orange Hill. NPS instead 

produced a real estate appraisal in December 2000, valuing Orange Hill at $146,000 for 

surface use. NPS' 2000 real estate appraisal disregarded mineral value. 

Between 2000 and 2007, NWE retained various consultants and counsel in 

attempting to get the NPS to do a minerals appraisal on Orange Hill. Towards this end, 

NWE obtained the assistance of the Alaska congressional delegation regarding the 

Interior Department appropriation bills for FY 2001 and 2005. 11 The enacted legislation 

directed Interior to negotiate with N\'VE regarding an appraisal and acquisition of 

Orange Hill. Still, NPS failed to undertake a minerals valuation of Orange Hill for 

several more years. 

In March 2007, NPS announced to NWE its intention to contract with Scott 

Stebbins d/b/a Aventurine Engineering to perform an economic evaluation of the Orange 

Hill mineral deposit. NWE made available its exploration and geologic information on 

the property and met with Stebbins for this purpose. Based upon NVVE's repeated 

communications with NPS and Stebbins, it appears that the consultant's work was 

prolonged, constantly supervised, and subject of modifications required by the NPS 

before completion. A year later, Stebbins completed his economic analysis in February 

2008. 12 He concluded Orange Hill mineral development is not feasible and would 

generate a negative $70 million return on investment. 

In June 2007, the Appraisal Services Directorate (ASD) informed NWE that it 

would procure a fee appraisal of the Orange Hill property and that the appraisal would 

incorporate Stebbins' work product. However, it took ASD another year to solicit 

requests for proposal on fee appraisal of Orange Hill. Only one contractor responded to 

the solicitation, Paul Meiling & Associates, and the appraisal contract was awarded to 

Meiling. Meiling completed his fee appraisal of Orange Hill in December 2008. 13 

II E.g., H. Rep. No. 108-542 at 53 (2004). 

12 Aventurine Mine Cost Engineering, Mineral Property Characterization and 

Resource/Reserve Determination for the National Park Service, January 2008. 

ll Paul H. Meiling, MAI, A Self Contained Appraisal Report of: The Orange 

Hill Patented Mining Claims Located in Wrangell-St. Elias National Park and Preserve, 

Northwest Explorations JV Stat~ment to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 7 
363 

Meiling determined the highest and best use of the property is "limited recreation" 

and his opinion of value is $290,000. Meiling reviewed Stebbins' report along with a 

critique thereof submitted by a consultant on behalf ofNWE, 14 and concluded that 

"mining is neither financially feasible nor maximally productive" for the property. 

Meiling acknowledged that the highest and best use determination was fundamental to 

valuation and that his reliance upon Stebbins' work product "significantly influences" his 

opmwn. 

IV. Criticism ofNPS and Interior Department Appraisal Practice 

The NPS as well as the Interior Department's appraisal practice has been subject of 

criticism. Further, NP S' program for voluntary acquisition of mining claims within the 

Denali, Yukon Charley and Wrangell St Elias Parks has been roundly criticized. The 

criticism was that NPS refused to allow mining pending its acquisitions, it took too long 

to complete appraisals, its appraisals consistently used a sales comparison approach and 

would not consider income value from minerals production, and its purchase offers were 

too low to induce any voluntary purchases for mineral value as distinguished from real 

estate value (for patented mining claims only). 15 

Due to the Denali mining claimants' dissatisfaction with the Park Service's 

voluntary acquisition program, Senator Stevens incorporated into the Interior 

Appropriations Bill for FY 1998 a provision authorizing condemnation with declaration 

of taking of mining claims with the claimowners' consent. 16 Several suits ensued with 

some reaching judgment, others being settled, and other claim owners agreeing to 

voluntary acquisition after higher valuations had been established. In five cases of this 

type, the valuations ultimately obtained by Kantishna mining claimants were all 

December 2008 (valuation date Sept. 23, 2008). 

14 H2TMine Engineering Services, A Critique of the Aventurine Mine Cost 

Engineering Report on Orange Hill, Mineral Property Characterization and Resource/ 

Reserve Determination for the National Park Service, May 26, 2008 (prepared for 

Northwest Explorations JV). 

15 See U.S. Sen. Subcomm. on Public Lands, Nat'! Parks & Forests, Hearing 

on Mining Activities in Units of National Park Service in Alaska, S. Hrg. Rpt. 103-577 

(1994); Lawrence V. Albert, ANILCA Promises Broken: the Demise of the Kantishna Mining 

District, in D(2), PART 2: A REPORT TO TTlE PEOPLE OF ALASKA ON THE LAND 

PROlVHSES MADE IN ANILC>\ (2000). 

16 Pub. L. No. 105-83, § 120, 111 Stat. 1543, 1564-66 (1997). 

. 6 . Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 7 
364 

substantially higher than NPS' approved appraisals or offers of proof on just 

compensation. 

These results are consistent with a remarkable NPS admission elsewhere regarding 

its land acquisition practice. A Park Service employee assigned to the Voyagers National 

Park in Minnesota made the following statement in a public meeting regarding its 

acquisition program for in-holdings: 

My job is to acquire this land for theN ational Park Service. I hope to 

acquire it for about 30 cents on the dollar. If the landowner cannot accept 

our reasonable offers, we let the matter ride for a few years. Then, if 

necessary, we go to court, including trials and appeals. This procedure is 

very expensive for the landowners. If we cannot agree on our terms, the 

landowners can hire lawyers at one-third [i.e. contingency fee arrangements] 

and pay the court costs in addition. All of this takes several years. 17 

The Park Service's attitude on property acquisition in the Voyagers National Park 

flaunts congressional policy set forth in 1970 legislation on the subject. 18 Thus, 

congressionally established policy commands that the Park Service not engage in coercive 

practices to compel acquiescence on voluntary acquisition. 

In 2003, Secretary Gail Norton consolidated the appraisal functions performed by 

individual Interior Department agencies into a single entity, the Office of Appraisal 

Services. 19 According to the Secretary, this reorganization was performed to provide 

unbiased appraisals, ensure appraiser independence and to make certain that appraisal 

meet recognized professional standards. Further, the Secretary stated the reorganization 

was a response to long standing criticism by the Department's Inspector General and 

General Accounting Office, and most recently a study conducted by the Appraisal 

Foundation. 

17 U.S. v. 341.45 Acres of Land, 751 F.2d 924,927 (8'h Cir. 1984). 

18 See Uniform Relocation Assistance and Real Property Acquisition Policies 

Act of 1970, Pub. L. No. 91-646, Title Ill, § 301(7), (8) codified at 42 U.S.C. § 4651(7), 

(8). 

19 U.S. Dept. of Interior, Office of Secretary, News: Norton Finalizes Real 

Estate Appraisal Reform, Nov. 12, 2003, available at www.doi.gov/news/031112e.htm 

(last visited June 4, 2007). See also U.S. Dept oflnterior, Office of Secretary, Order No. 

3251 (Nov. 12, 2003). 

. 7 . Northwest Explorations JV Statement to Sen. Energy Comm1ttee 

Hearing on Implementation of ANILCA 

Attachment 7 
365 

In 2006, the GAO reviewed the ASD's experience in performing appraisals for 

Interior agencies. 20 The GAO found that the quality oflnterior appraisals had improved 

since ASD's inception, however, its policies and procedures still did not fully ensure 

compliance with recognized appraisal standards [report at 13]. GAO found 

approximately 40% of appraisals reviewed failed to meet standards because the authors 

lacked specialized skills appropriate for valuation of resources, including minerals [report 

at 5, 13, 15]. The GAO cited to USPAP21 standards for the proposition that iflnterior 

appraisers lack qualifications to do specialty appraisals, then such disclosure must be made 

and an explanation given for correction of the deficiency [report at 13, 15, 16]. 

V. The Scope of the Project Rule in Real Property Acquisition. 

The determination of just compensation in federal real property acquisition is 

governed by the Takings Clause. The conventional standard for just compensation is fair 

market value between a willing buyer and willing seller for an effective date of valuation. 

As part of the market value standard, federal courts have recognized a principle known as 

the "scope of the project" (SOP) rule. This rule states that no increase or decrease in 

property value attributable to governmental action prior to the date of valuation shall be 

considered in determining just compensation.22 

Courts recognize the SOP rule applies to decreases in property value due to an 

acquisition project.23 Thus, the government "may not take advantage of any depreciation 

20 U.S. General Accounting Office, Interior's Land Appraisal Services: 

Actions Needs to Improve Compliance with Appraisal Standards, Increase Efficiency and 

Broaden Oversight, Report No. GA0-061050 (2006). 

21 "USP AP" is an acronym for the Uniform Standards of Professional 

Appraisal Practice authored by the Appraisal Standards Board, Appraisal Foundation. 

Title IX of the Financial Institutions Reform, Recovery and Enforcement Act of 1989 

(FIRREA) enacted reforms in appraisal standards and certifications in connection with 

federally related transactions. See Pub. L. No. 101-73, Title IX., 103 Stat. 183,511-19 

(1989). The Appraisal Foundation was one entity created as a result of FIR REA. 

22 E.g., United States ·v. Reynolds, 397 U.S. 14, 16 (1970) ("to permit 

compensation to be either reduced or increased because of an alteration in market value 

attributable to the [government's] project itself would not lead to the 'just compensation' 

that the Constitution requires"). 

'·' E.g., United States ·v. 0.59 Acres of Land, 109 F.3d 1493, 1497 (9th Cir. 

1997) ("the Government is barred from first driving down the value of property it intends 

. 8 . Northwest Explorations JV Statement to Sen. Energy Comm1ttee 

Hearing on Implementation of ANILCA 

Attachment 7 
366 

in the property taken that is attributable to the project itself."24 Additionally, "the 

government may not regulate for the purpose of depressing value in eminent domain 

proceedings."25 The courts reason that "[s]uch action would be an abuse of governmental 

authority, resulting in a denial of due process."26 

The courts have applied the SOP rule to reject diminution in value associated with 

government regulation of mineral property prior to taking or condemnation. In Florida 

Rock, the Federal Circuit rejected the government's contention that its wetland regulation 

of limestone property should be considered in valuation because such regulation caused 

the taking. 27 In Silver Queen, the Tenth Circuit rejected the government's contention that 

unproven potential of mineral property should be disregarded given the government's 

prohibition on exploration for 18 years.28 A recent decision has applied the SOP rule to 

preclude the government from asserting restrictions on geothermal development in 

valuation of fractional mineral interests.29 

to acquire"). 

24 Almota Farmers Ele·vator and Warehouse Co. v. United States, 409 U.S. 470, 

478 (1973). See also United States v. Virginia Electric & Power Co., 325 U.S. 624, 636 

(1961) ("The court must exclude any depreciation in value caused by the prospective 

taking once the Government was committed to the project"). 

25 United States v. 320.0Acres of Land, 605 F.2d 762, at 820 n.l31 (5th Cir. 

1979). 

26 Washington Metropolitan Area Transit Authority v. One Parcel of Land, 413 

F.Supp. 102, 106 (D.Md.1976), ajfd per curiam, 548 F.2d 1130 (4th Cir. 1977). 

27 Florida Rock Industries, Inc. ·v. United States, 791 F.2d 893, 905 (Fed. Cir. 

1986 ). 

28 United States ·v. Silver Queen Mining Co., 285 F.2d 506, 509-10, 511 n.5 

(10'" Cir. 1960 ) ("No advantage should accrue to the government because of the 

difficulties of proof occasioned appellee because the United States had possession of the 

[mining] claims for eighteen years and had thus prevented any possibility of development 

during those years"). 

29 United States ·v. 99,223 Acres of Land, Memorandum Opinion & Order 26-

30, No. Civ 06-0933 (D.N.M, filed Sept. 17, 2007), available through PACER at 

www.nmcourt.fed.us/ web/DCDOCS/dcindex.hrml (last visited Nov. 3, 2009). 

Northwest Explorations JV Stat~ment to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 7 
367 

In 1970, Congress ratified the SOP Rule when it enacted legislation for real 

property acquisition by the federal government: "[a]ny decrease or increase in the fair 

market value of real property prior to the date of valuation caused by the public 

improvement for which the property is acquired ... will be disregarded in determining 

the compensation for the property."3° Further, the Justice Department's guidelines on 

valuation for federal real property acquisition recognizes the SOP rule. 

Application of the SOP rule is critically important to ascertaining fair market value 

for Orange Hill: the historical record is abundantly clear this property was subject of 

serious exploration commitment and a purchase option by a major American company 

prior to enactment of ANILCA in December 1980. Since that date, absolutely no activity 

associated with exploration or development of Orange Hill has occurred due to the Park 

Service's regulation of mining activity as well as the federal injunction that existed 

between 1985 and 1990. Further, the NPS has had a clearly announced acquisition 

"project" for WRST mining claims, including Orange Hill, since its 1986 General 

Management Plan together with the 1990 NEP A Record of Decision. 

Therefore, any government approved appraisal of Orange Hill that purports to 

comply with US PAP standards along with established principles of real property 

acquisition must incorporate the SOP rule in ascertaining fair market value, including 

highest and best use determination for minerals exploitation. Application of the SOP rule 

to Orange Hill means that any objection regarding uncertainty associated with the 

quantum and tenor of mineral resources, suitable mining methods and other parameters 

associated with development of the deposit must be disregarded. Further, the federal 

government's environmental or land use regulations applicable to mineral development of 

Orange Hill must be construed to permit a hypothetical mining operation. 

VI. Criticism of ASD Appraisal Process for Orange Hill. 

A. NPS Contract for Orange Hill Mineral Property 

Characterization and Resource/Reserve Determination. 

In 2007, NPS contracted with Aventurine Mine Cost Engineering to do an 

economic analysis of mineral development for Orange Hill. Aventurine's principal is 

30 42 u.s.c. § 4651(3). 

31 Interagency Land Acquisition Conference, Uniform Appraisal Standards for 

Federal Lands Acquisitions 45-47 (5th ed. 2000). 

. 10 . Northwest Explorations JV Statement to Sen. Energy Comm1ttee 

Hearing on Implementation of ANILCA 

Attachment 7 
368 

Scott Stebbins, a mining engineer who specializes in cost analysis of mining plans to 

determine their economic feasability. Stebbins' analysis includes a resource evaluation, an 

engineered plan for development and commercial operation of the mineral deposit, 

estimation of capital and operating requirements to run the hypothetical mining 

operations, and derivation of income, cash flows and return on investment. Stebbins 

concluded Orange Hill would show a negative $70 million return on investment if the 

mineral deposit were developed. 

Stebbins' contract was administered by Charles Gilbert of the NPS Alaska 

Regional Oftlce. Gilbert undertakes land acquisition for Park System units in Alaska. 

Gilbert has no professional qualifications in mining engineering, mineral economics, 

geology or real property appraisal. Thus notwithstanding Interior Department's creation 

of ASD in 2003 to create independence and assure compliance with professional appraisal 

standards, NPS through Gilbert administered a contract for economic evaluation of 

mineral property that was utilized by ASD and yet Gilbert was singularly unqualified to 

do so. At the time, the ASD Northwest Office itself apparently lacked any expertise in 

mineral property appraisal. 

Based on NWE's limited information, there is no assurance that Stebbins 

performed his work independently and under supervision of a qualified professional 

according to USP AP standards. Instead, NWE has reason to believe that Stebbins' work 

product was improperly influenced by Gilbert. Gilbert's role in supervising Stebbins' 

economic evaluation is illustrative of the deficiencies GAO noted in ASD administration 

of specialty appraisals for which it lacked expertise. See supra at 8. Additionally, any 

influence that Gilbert or NPS exercised over the independence of Stebbins' professional 

work product could have violated Secretarial Order 3251 that created ASD. 

This submission does not undertake a thorough critique of Stebbins' economic 

analysis. NWE submitted a preliminary critique through its consultant H2T Mine 

Engineering Services and noted positive cash flow improvements of $210 million if 

specific parameters selected in Stebbins' analysis were changed. See supra Note 14 at 2."' 

32 Telephone conversation between Stuart Snyder, ASD Northwest Office, 

June 5, 2007, with Lawrence V. Albert. Snyder acknowledged the GAO criticism, and 

that ASD lacked expertise in mineral property appraisal. He thought USP AP standards 

would be satisfied through ASD contracting for a mineral property appraisal. 

33 The H2T critique identified ten topics which would result in cash flow 

changes to Aventurine's feasibility analysis. These are identified in Table 1 "Cash Flow 

Summary" of the H2T critique. 

Northwest Explorations JV Stat~~entto Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment? 
369 

One of H2T's material findings is that Aventurine's report "appears to be heavily padded 

to increase costs to inordinaately high levels in both capital and operating cost estimates." 

Items of H2T's disagreement included, but are not limited to, absence of silver recovery in 

mineral production, improper assessment of property and severance taxes where Alaska 

law does not impose same, and elimination of a heated conduit for mine tailings. 

Stebbins generated an addendum to his report where he responded to this critique and yet 

still found Orange Hill would generate negative cash flow." 

Stebbins' analysis can be criticized for failure to apply the SOP rule in his 

estimation of various resource, engineering and cost parameters. As examples, Stebbins 

reasons that silver would not be recovered in his mine model due to inadequate sampling 

and consequent uncertainty associated silver grades at Orange Hill. Stebbins declines to 

adjust his cutoff grade as being possibly wasteful (i.e. recovery of excessive material at 

marginally low grade) because such adjustment typically occurs in the iterative process of 

mine development and production. While such explanation might have merit in an open 

market context, their application to Orange Hill is improper because the property has 

been precluded since 1981 from further exploration, development or production that 

would provide greater certainty in economic analysis. 

B. ASD Procurement and Administration of Fee Appraisal. 

The ASD prepared a Statement ofvVork (SOvV) to accompany its solicitation for 

a fee appraisal of Orange Hill. Under the heading "Controversies/Issues" (page four), 

the SOW indicates "[t]he owners of the property have been trying to sell it to the NPS for 

many years. The appraiser should be aware that the possibility of an inverse 

condemnation claim exists." The tenor of these remarks suggests market failure but offers 

no explanation why and fails to explain the historical circumstances affecting Orange Hill 

as discussed above. 

Thus the SOW fails to disclose that NPS has an official policy for acquisition of 

mining claims within WRST and that no major mining operations, let alone meaningful 

exploration of mineral property within the park, had been allowed since ANILCA's 

enactment in 1980 and reinforced by the 1985 court injunction. If the ASD considered 

34 Aventurine Mine Cost Engineering, Inc., Mineral Property 

Characterization and Resource/Reserve Determination for the Orange Hill CopperMolybdenum Deposit--Addendum, Nov. 2008. 

35 Statement of\Vork-SOW; Appraisal Services Directorate-ASD; Agency 

Case & Number: WRST 32-101; ARRST Number: PE 10}6, dated May 30,2008. 

Northwest Explorations JV Stat~~ent to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 7 
370 

such disclosures to be irrelevant to the solicitation, then so should the facts of the owners' 

unsuccessful attempts at voluntary acquisition along with the possibility of inverse 

condemnation. 

That the SOW would insinuate market failure for mineral development of Orange 

Hill while not assign any responsibility to the government for such failure indicates refusal 

to acknowledge the SOP rule to valuation of this property. Even a NPS review appraiser 

in 1988 recognized the adverse effect of ANILCA and the 1985 court injunction in 

valuing patented claims in Denali Park for surface estate only. 16 If for no other reason, 

the SOW and ASD's solicitation for fee appraisal of Orange Hills are fundamentally 

deficient in this regard. 

The SOW (page 7) indicates the selected appraiser must be "competent to properly 

value a property identified as containing minerals, but not considered economic under the 

mining feasibility study. Therefore, the appraiser should have adequate specialized 

training and experience to understand and apply the proper methodologies established for 

estimating the market value of properties with mineral potential." This specification 

presumably conforms with USPAP's Competency Rule. However, Meiling failed to 

adhere to the specification as explained below, and ASD has noted no deficiency in his 

submission on the matter. 

The SOW identifies Douglas Bauer of the Interior Department Office of Mineral 

Evaluations as the Review Appraiser for the solicitation and performance of the contract 

appraisal on Orange Hill. There is no indication that Bauer performed his function as 

Review Appraiser according to ASD guidelines and the recommendations in the GAO 

report. Specifically, there is no indication Bauer certified that Meiling complied with the 

SOvV standard of competence set forth on page seven of the SOW and quoted above. 

C. Critique ofMeiling Fee Appraisal on Orange Hill 

The Meiling appraisal is deficient for several reasons, however, the several 

deficiencies are not catalogued in this submission. Only three are presented in this 

16 SeeN ational Park Service, Alaska Regional Office, Appraisal Report, 

Kantishna Mines Limited, Denali National Park, Alaska, "Review Statement" 3, 22-24 

(1988) ("the market would recognize the mineral potential involved but would 

substantially discount this potential because of the current regulations and court 

injunction"). The NPS appraisal for the Denali claims valued the surface estate only and 

did not acknowledge the SOP rule but instead the adverse effects of the government's 

police power. See id. 

. 13 . Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 7 
371 

submission; these go to the issue of whether mineral development is an economically 

viable use of Orange Hill in the absence of governmental prohibition. 

1. Meiling Fails to Meet the US PAP Competency 

Standard for a Mineral Property Appraisal. 

Meiling's report includes a Certification that his appraisal complies with USP AP 

and USAFLA. His report presumably complies with the requirements of the SOW 

which were incorporated into his contract for professional services. As part of such 

compliance, Meiling was required to certify that he was competent to undertake a mineral 

property appraisal. However, Meiling's report nowhere provides such certification in 

response to the SOW specification (page 7) quoted above. 

Meiling's statement of qualifications is set forth as Exhibit A -9 to his report. 

Therein, he holds out a specialization in mining and mineral properties. However, no 

disclosure is provided that Meiling has professional training, experience or certification in 

disciplines relevant to mineral property valuation such as mining engineering, geology 

and/or mineral economics. The statement of qualifications includes a page "Appraisal 

Experience--Mining and Mineral Interests." Therein, Meiling represents having done 

valuations of resource market value but he does not specify minerals valuation. He further 

states that he has done highest and best use conflicts between surface and subsurface use 

but again does not specifY competence in determining minerals valuation. 37 

According to Meiling's report, the fundamental valuation issue for Orange Hill 

is determining highest and best use, i.e. would mineral development be economically 

feasible. The AS D's Statement vVork states the same proposition. Given this "crux of the 

appraisal problem," Meiling's report fails to provide satisfactory assurance that he meets 

the USP AP competency standard for mineral property valuation. He instead presumes 

that Stebbins' report satisfies the competency standard along with his utilization of an 

abbreviated review by a subcontracted geologist. 

However, neither Stebbins nor Meiling's contracted reviewer, Robert Murray, 

qualifY as general real estate appraisers nor appraisers having specialized skill to undertake 

mineral property valuations. In summary, ASD and the Park Service have circumvented 

37 Meiling is not shown as being a member of the American Institute of 

Mineral Appraisers although this association is voluntary. See Directory of Certified 

Mineral Appraisers, available at www.mineralsappraisers.org/directorv.html (last visited 

Nov. 6, 2009). 

. 14 . Northwest Explorations JV Statement to Sen. Energy Comm1ttee 

Hearing on Implementation of ANILCA 

Attachment 7 
372 

the USPAP competency requirement and have ignored GAO's criticism oflnterior 

appraisers lacking the specialized skills required for mineral property appraisals. 

2. Meiling's Deficiency Was Not Cured by Subcontracting 

with a Geologist to Review Stebbins' work product. 

Meiling implicitly recognizes he is not competent to undertake a mineral property 

appraisal because he subcontracted with Robert Murray, a consulting geologist. In the 

engagement letter, Meiling requested Murray review both the Stebbins report and the 

H2T critique and then arrive at his own conclusions regarding same. In response, J\1urray 

submitted a three page report to Meiling attached as Exhibit A-7 to the appraisal. 

Murray is a qualified exploration geologist, with experience in Alaskan properties. 

Still, he is not an appraiser or mineral property appraiser in particular. According to 

U SP AP Guide Note 6, such requirement would not necessarily apply to subcontracts in 

appraisal assignments. In the case of Orange Hill, however, an understanding of property 

history, the government's regulation since 1980 and the SOP mle is appropriate to 

Murray's evaluation of various engineering, economic and geologic parameters for mineral 

development. Murray's report appears to be oblivious to such considerations and 

Meiling's engagement letter provided no guidance on the subjects. Therefore, Meiling 

cannot reasonably rely on another's report when the peculiar circumstances of the 

appraisal and the specialized skill required to evaluate such constraints for a mineral 

deposit is not manifested in the subcontract. 

The H2T critique of Stebbins report identifies ten issues with significant 

consequences, totaling a positive adjustment in cash flow of $210 million. Murray's letter 

comments on only three of these issues--silver value, labor shift, and heated tailings 

storage. Murray's response on silver values fails to consider the historical constraints 

imposed after 1980. To the contrary, Murray's response suggests a deliberate disregard of 

the SOP rule in stating that Stebbins' "mine plan ... realistically deals with the severe 

limitations imposed by the location of the claims within the National Preserve." 

For the balance of the issues raised in the H2T critique, Murray superficially 

observes these "are addressed in [Stebbins'] Addendum" without arriving at his own 

conclusions and opinions on the matters, as requested by l\1eiling. Further, J\lurray 

repeats Stebbins' view that adjustment to several resource and cost parameters cannot be 

resolved without subjecting the property to actual development and iteration of mine 

planning processes. This criticism misses the point of the SOP rule and recognition that 

any uncertainty on mine planning is not due to open market conditions but rather 

governmental suppression of minerals use. 

Northwest Explorations JV Stat~j\,ent to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 7 
373 

3. Meiling Failed to Consider the 1979 and 1981 U.S. 

Borax Purchase Option as Evidence of Market Value. 

Meiling's determination of highest and best use was based solely upon Stebbins' 

economic analysis which employed an income approach to valuation of a hypothetical 

mine circa 2008. Meiling did not undertake any contemporary or historical analysis of 

sales comparisons as evidence of market value for Orange Hill. Yet Meiling was evidently 

aware that Orange Hill was subject of serious exploration work and transactional 

commitments before enactment of ANILCA. Stebbins report certainly discusses this 

property history. 

Meiling should have considered the U.S. Borax's 1981 amendment to its 1977 

Exploration Agreement and Option to Purchase. The purchase option if exercised would 

have resulted in a purchase price of $2.5 to $3.5 million in 1981 dollars. Though the 

option was never exercised, this fact may be attributed to the government's regulation of 

WRST including Orange Hill. Contemporaneous correspondence between NWE and 

Pacific Coast Mines, the U.S. Borax subsidiary, plainly disclosed the suppression of 

mineral exploration and development. 

Purchase options normally do not qualify as competent evidence in real property 

valuation. Also, transactions remote in time to the effective date of valuation must be 

rejected in favor of contemporaneous evidence of value. Again, however, where market 

failure, i.e the absence of direct sales comparisons, can be attributed to governmental 

actions such as pending condemnation or an announced acquisition program, then 

historical or contingent transactions may be considered as competent evidence of value. 38 

Accordingly, the 1981 purchase option, adjusted to 2008 market conditions, should have 

been considered as evidence of market value for Orange Hill. Meiling's appraisal is 

plainly deficient on this matter. 

VII. H2T Independent Assessment of 0 range Hill Mineral Development. 

NWE has asked its consultant H2T to prepare an independent analysis of the 

economic feasibility of mining the Orange Hill deposit. H2T completed its report in 

May 2009, and a copy is provided with this submission. According to the consultant's 

38 E.g., United States •v. 320.0Acres of Land, 605 F.2d 762, 802-03 (5'h Cir. 

1979)(only comparable transactions were those influenced by NPS acquisition within 

Florida Everglades National Park); accord, United States v. 428.02 Acres of Land, 687 F.2d 

266, 269 (8'h Cir. 1982) (executory transaction still considered because non performance 

due to pending federal condemnation). 

Northwest Explorations JV Stat~~ent to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 7 
374 

analysis, the Orange Hill deposit can be economically mined with a $43 million net 

present value based on specific parameter values and data inputs. The H2T report reflects 

the work of two experienced Alaskan mining engineers. 

The H2T report is similar to Stebbins' analysis in certain respects but differs 

materially in other respects. The resource volume and grade for copper are similar, 

however H2T incorporates a silver value which Stebbins declined to do. The H2T mine 

plan differs significantly from that of Stebbins, being more efficient in operational 

features and employing off-site support: the H2T operating plan transports ore and waste 

material offsite to two separate locations. Ore is conveyed to the White Mountain site 

(N abesna Mine) for treatment where the mill and supporting infrastructure are sited. 

VVaste and tailings are conveyed to a 320 acre native owned parcel on the left limit of the 

N abesna River four mile northeast of the White Mountain site. 

This submission does not purport to demonstrate the merits of the H2T mine plan 

by comparison to that of Stebbins. Rather, the H2T report is presented to show differing 

opinions regarding the economic feasibility of mining the Orange Hill deposit. Given the 

differing opinions, NWE requests an arbitration on the issue of Orange Hill valuation 

consistent with the analysis below. 

VIII. Alternative Dispute Resolution in Property Valuation and Acquisition 

In the last twenty years, Congress and the Executive Branch have evolved in their 

views regarding alternative dispute resolution (AD R) in federal agency functions. NVVE 

believes that application of an AD R process has merit to resolving the valuation dispute 

on Orange Hill. At least three enactments have affected the Interior Department in 

regard to lands acquisition or lands valuation. These are briefly discussed to explain 

possible AD R application to valuation of Orange Hill. 

In 1988 Congress enacted the Federal Land Exchange Facilitation Act. 39 This 

legislation authorized the Secretaries oflnterior and Agriculture to engage in land 

exchanges with private parties while providing procedures for resolution of appraisal 

disputes on the lands in question. VVith regard to lands administered by Interior, the 

legislation authorizes the Secretary to arbitrate or utilize ADR if the parties disagree on 

valuation. If arbitration is utilized, this is not binding as the legislation authorizes either 

party to withdraw from the land exchange. 

39 Pub. L. No. 100409, 102 Stat. 1086, amending 43 U.S.C. § 1716 (1988). 

Northwest Explorations JV Stat~~ent to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 7 
375 

The Interior Appropriations Bill for FY 1991 included provisions specific to 

acquisition of mining claims within Denali N a tiona! Park."" One of the provisions 

authorized arbitration on valuation of valid mining claims if the claim owner offered to 

sell the property to the United States. The arbitration result would be binding on the 

government although the claim owner had a right of rescission. The government declined 

to implement this provision due to a constitutionality concern under the Appointments 

Clause. 

Also in 1990, Congress enacted the Administrative Disputes Resolution Act."1 

This legislation applies to an "administrative program" of the Executive Branch generally. 

Congressional findings of this Act state that AD R is desirable for federal administrative 

proceedings and programs. The legislation confers discretion on federal agencies not to 

employ ADR for specified policy considerations. The legislation authorizes arbitration on 

terms the parties agree upon, including binding arbitration if the agency head makes 

certain findings. 

It appears that Interior and ELM have experience in applying the ADR provisions 

in the federal land exchange legislation." The ELM has promulgated regulations under 

the 1988 legislation including guidance for the bargaining process and utilization of 

arbitration."' Regarding the 1990 legislation, Interior has promulgated both policy 

guidance and a Departmental Manual wherein the Office of Collaborative Dispute 

Resolution is created to implement the ADR policy."4 

NWE recommends that Interior's authority under the 1990 Act be applied to 

authorize non binding arbitration on valuation of Orange Hill. At this juncture, NWE is 

flexible on the features of arbitration and solicits the Interior Department's views on the 

subject. NWE believes arbitration would be cheaper, less time-consuming and simpler 

40 Pub. L. No. 101-512, § 121, 104 Stat. 1915, 1937-38 (1990). 

41 Pub. L. No. 101-552, 104 Stat. 2738, codified at 5 U.S.C. §§ 571-83. 

42 See Hearing on Bureau of Land Management Realty and Appraisal Issues, 

before the Subcomm. on Nat'! Parks & Pub. Lands, Comm. on Resources, 105'h Cong., 

2d Sess. 4-6, 13-14 (1998). 

43 43 C.F.R. Part 2200 (2008); id. § .2201.4 ("Bargaining; Arbitration"). 

44 See Department of the Interior's Final Alternative Dispute Resolution 

Policy, 61 Fed.Reg. 40424 (Aug. 2, 1996); Department oflnterior, Departmental 

Manual, 112 DM 21 (effective Oct. 7, 2005). 

Northwest Explorations JV Stat~~ent to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 7 
376 

than formal litigation regarding valuation of Orange Hill in a condemnation proceeding. 

NWE suggests non binding arbitration based on the government's concerns and 

legislative choices expressed in the above referenced legislation. 

(rev 12/16/09) 

. 19 . Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 7 
377 

Mr. Lawrence V. Albert 

Attorney at Law 

P.O Box 200934 

Anchorage, Alaska 99520 

United States Department of the Interior 

NATIONAL BUSINESS CENTER 

Appraisal Services Directorate NW Region 

333 S.W. First Ave. 

Ponland, Oregon 97204 

January 22, 2010 

RE: Orange Hill Patented Mining Claims, Wrangell St. Elias Park, Alaska 

Dear Mr. Albert, 

I'm writing in respo~e to your letter of December 16th requesting a reconsideration of the appraisal results of 

the ASD-approved appraisal on the Orange Hill property in Alaska in late 2008. First of all, I should let you 

know that under ASD's appeal policy, only our client agencies have standing to appeal. Thus the National Park 

Service would have to agree to the appeal and forward it to us for consideration. Nonetheless, our policy calls 

for informal discussion and good faith attempts to resolve any issues at the lowest level possible before a formal 

appeal is made. Therefore, I have taken the following steps in response to your letter: 

1) I have requested the Solicitor's office in Alaska to address two of the issues you raised: first, whether 

we should have instructed the appraiser to apply the scope of the project rule in this case; and second, 

whether the Solicitor would consider your client to have standing to request arbitration or mediation of 

the appraisal results, independent of the current ASD process, as you propose in your letter. 

2) I have contacted DOl's Office of Mineral Evaluation in Denver who provided expert advice in both 

development of the scope of work for the Stebbins report and review of said report, and have alerted 

them that we may need their assistance in review of the H2T Mine Engineering report commissioned 

by your client. 

3) I have alerted Chuck Gilbert, Realty Officer at NPS, and provided him with a copy of your letter and 

attachments since he would be a key decision-maker on whether to make a formal appeal to ASD. 

Once I have been advised by the Solicitor on the issues outlined above, I will be back in touch with you with our 

plan of action. 

s~~ Helen L. Honse 

Regional Appraiser 

TAKE PRIDE"'~ 

INA_MERICA~ 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 8 
378 

Mr. La\\Tencc V. Albert 

Attomcy at Law 

P. 0 Box 200934 

Anchorage, Alaska 99520 

United States Department of the Interior 

'i \TION,\L Bl!SlNESS CENTER 

Appraisal Sen'ices Dinxtomtt: :-,:-\\T Region 

333 S.\\-. Firsl.-\v.,;_ 

Portland, Or.;;gon 9720<-l 

April27, 20 lO 

RE: Orange Hill Patented Mining Claims, Wrangell St. Elias Park and Preserve, Alaska 

Dear Mr. Albert 

I am writing in response to yonr December 16, 2009, letter in which you expressed conccms regarding the 

Department ofh1tcrior's 2008 fcc appraisal of the Orange Hill claims and rc'quested the Department enter into 

non-binding arbitration with Northwest Explorations Joint Venture. h1 my January 22, 2010, response to you, I 

explained that I needed to obtain additional infonnation, including input from the Solicitor's Office, the 

Department's Office of Mineral Evaluation, and the National Pruk Service, before I could fully consider and 

respond to your request. 

Since that time, I have obtained and reviewed the requested infommtion, as well as other relevant backgrmmd 

infonnation regarding this matter, including the report you provided from H2T Mine Engincc1ing estimating the 

market value of the claims to be roughly $50 million. fu light of this review, we fmd that the 2008 appraisal of 

the property was fairly conducted and properly took into accmmt all relevant considerations, and provides a 

smmd and valid estimate of the fair market value of the claims. Moreover, we have serious reservations about 

the methodology and support for the conclusions in the H2T Report. 

With regard to your request for non-binding arbitration, we do not believe it would be appropriate to engage in 

altemative dispute resolution to detem1ine the fair mruket value of the claims, due to the importance of 

maintaining the integrity of the appraisal process, as provided in Unifonn Appraisal Standards for Federal Land 

Acquisitions and the Unifonn Standards of Professional Appraisal Practices, in estimating the fair market value 

of real property. It is the responsibility of Appraisal Services Directorate to produce sound, reliable appraisals 

for the Department oflnterior bureaus, which we believe we have done in this case. 

Given this situation, I suggest that you contact Chuck Gilbert at the National Park Service in Alaska to discuss 

possible options for negotiating a purchase that may be acceptable to your clients. 

Sincerely, 

Helen L. Honse 

Regional Appraiser 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 9 
379 

Hon. Lisa Murkowski 

United States Senator 

510 "L" Street Ste. 5 50 

Anchorage, Alaska 99501 

Hon. Mark Begich 

United States Senator 

510 "L" Street Stc. 750 

Anchorage, Alaska 99501 

LAWRENCE V. ALBERT ATTORNEY AT LAW 

P. 0. BOX 200934 

ANCHORAGE, ALASKA 99520 

TELEPHONE (907) 243-2!72 

F'AX !9071 243-5476 

April 30, 2010 

Hon Donald E. Young 

United States Congressman 

510 "L" Street Ste. 580 

Anchorage, Alaska 99501 

Re: Northwest Explorations Joint Venture--Orange Hill Mineral Deposit--

Valuation Dispute with DOl Appraisal Services Directorate 

Dear Sen. Murkowski, Cong. Young and Sen. Begich: 

I write in regard to a long standing problem concerning the Interior Department and 

my client's attempts to obtain a fair valuation of mineral property located within the 

Wrangells St. Elias Park (WRSn. The client is named Northwest Explorations JV (NWE) 

and the property is known as Orange Hill. This property comprises patented mining claims 

that were subject of serious, multi-year exploration efforts prior to the passage of ANILCA. 

The property has laid dormant since then due to the Park Service's administration ofWRST, 

a 1985 court injunction and a de facto prohibition on commercial mining operations. 

NWE has attempted to get a fair valuation for the property and has been unsuccessful 

in doing so due to the Appraisal Service Directorate's (ASD) failure to follow established 

appraisal procedures for Executive Branch agencies. Because there is a valuation dispute and 

recognizing the Park Service has an official policy on acquiring mining claims within WRST, 

my clienr requests non-binding arbitration on the valuation issue before the Interior 

Department Office of Collaborative Dispute Resolution. However, the Appraisal Service 

Directorate refuses to cooperate on this request. 

Accordingly, NWE seeks your assistance, along with that of Pat Pourchot, 

representing the Secretaty oflnterior for Alaska affairs, to explain to ASD and the Park 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 10 
380 

HON. LISA MURKOWSKI, DON YOUNG & MARK 13EGICH 

Re: Northwest Exploration JV-Valuation Dispute with Interior Dept. 

Service that the public interest--including cost to taxpayers-- is better served through ADR 

on mineral property valuation than court litigation. In this regard, enclosed is 

correspondence documenting this dispute and requests for assistance from the Oft!ce of the 

Secretary along with the Interior Department's Office of Inspector General. 

On behalf of Northwest Explorations Joint Venture, I appreciate any assistance your 

respective offices can provide so that my client might realize its constitutionally protected 

property rights that have been frustrated for the last quarter century. 

ends 

cc: Northwest Exploration ]V 

(w/o ends) 

2 

r:f(~'0JJ~\c Lawrence V. Albert 

Attorney at Law 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 1 0 
381 

Summary(){ Inquiry to Alaska Congressional Delegation April 2010 

Northwest Explorations (NWE) Joint Venture--Orange Hill Mineral Property 

Property comprises 18 patented mining claims--363 acres--located near Nabesna and 

within Wrangell St. Elias National Park & Preserve, Alaska (WRST). 

Deposit is porphyry copper-molybdenum and was subject of major drilling campaign in 

1960s and 1970s leading up to ANILCA enactment in Dec. 1980. 

1995 USGS study placed Orange Hill within top 25'h percentile of the largest copper 

deposits worldwide. 

1985 court injunction against National Park Service (NPS) prohibited commercial mining 

operations within WRST, Denali and Yukon Charley National Parks due to 

environmental non compliance. 

NPS issued Final EIS in 1990 proposing acquisition of all mining claims within WRST. 

No commercial mining has been pcrmi!ted within WRST since then. 

NWE repeatedly requested NPS to prepare mineral appraisal of Orange Hill over 20 year 

period. NPS was dilatory, made excuses and did surface real estate appraisal instead. 

NWE twice obtained the assistance of Alaska congressional delegation through Interior 

appropriation bills for FY 2001 and 2005, directing NPS to prepare appraisal and 

negotiate property purchase. Interior and NPS was non responsive in both instances. 

Interior Appraisal Service Directorate (ASD) procured fee appraisal of Orange Hill in 

2008. ASD found Orange Hill mineral development uneconomic based upon NPS 

engineering cost study. ASD valued Orange Hill at $290,000 based on surface usc only. 

NWE disagreed with ASD's appraisal and prepared its own engineering-economic 

analysis. H2T Mine Engineering valued Orange Hill at $43 million in May 2009. 

In Dec. 2009, NWE requested ASD reconsider its uneconomic mineral valuation of 

Orange Hill based upon H2T' s critique. NWE also requested that ASD participate in 

alternative dispute resolution (ADR) on property valuation pursuant to the Administrative 

Disputes Resolution Act, 5 U.S.C. §§ 571-83, and Interior's implementation of same. 

ASD in April2010 declined NWE's request for ADR in order to "maintain[] the integrity 

of the appraisal process." On behalf of Secretary oflnlcrior, Pat Pourchol also declined 

ADR on property valuation in June 20 I 0 because "forn1al arbitration has no precedent in 

this type of case." 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 10 
382 

NWE wrote to the Alaska congressional delegation in Apri12010 seeking its 

assistance on Orange Hill valuation dispute. NWE contends Interior has given no 

legitimate explanation for declining ADR when Congress and Executive Branch policy 

promotes this. 

ADR is less expensive to both the property owner and govemment than formal 

condemnation. Iflntcrior cannot agree to a voluntary resolution of the valuation dispute, 

then NWE has no choice but to request condemnation of Orange Hill with declaration of 

taking. The court will then determine just compensation. 

Kantishna mining claimants in Denali Nat!. Park had a comparable problem with NPS. 

Sen. Stevens enacted legislation as part of Interior FY 1998 appropriations bill that 

authorized condcnmation with DTA for consenting mining claimants. See Pub. L.No. 

105-83, § 120, Ill Stat. 1543, 1564-66 (1997). 

(prepared August 23, 2010) 

2 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 10 
383 

LAWRENCE Y. ALBERT 

Ms. Mary L. Kendall 

Acting Inspector General 

U.S. Department oflnterior 

Office of Inspector General 

1849 "C" Sueet, N.W. Ste. 4428 

Washington, D.C. 20240 

ATTORNEY AT LAW 

P. 0. BOX 200934 

ANCHORAGE, ALASKA 99520 

TELEPHONE (907) 243-2172 

FAX (907) 243-5476 

April30, 2010 

Re: Interior Department Appraisal Services Directorate--

Request for OIG Investigation 

Dear Ms. Kendall: 

I write on behalf of a client, Northwest Explorations Joint Venture (NWE), to 

request the Office of Inspector General investigate the failure of the Interior Department's 

Appraisal Service Directorate (ASD) to follow established appraisal procedures in valuation 

of mineral property for acquisition by the National Park Service (NPS). 

The ASD, along with the NPS and BLM as its predecessors in pertinent part, have 

been subject of continued criticism over the last several years for failure to adhere to 

established appraisal practice and guidelines for property acquisition. This criticism is 

particularly relevant in regard to specialty appraisals, as for example mineral property, where 

the agencies lack expertise. l bring to your attention the following reports on the subject: 

U.S. Dept oflnterior, Office oflnspector General, Audit Report, Land 

Acquisition Activities of the National Park Service, Report No. 99-I-518 (May 

1999). 

Appraisal Foundation, Evaluation of the Appraisal Organization of the Dept. 

oflnterior, Bureau of Land Management, Contract to BLM Asst. Director for 

Minerals, Realty & Resource Protection (Oct. 2002). 

U.S. General Accminting Office, Interior's Land Appraisal Services: Actions 

Needed to Improve Compliance with Appraisal Standards, Increase Efficiency 

and Broaden Oversight, No. GA0-06-0050 (2006). 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 11 
384 

MS. MARY KENDALL, DOI OFFICE OF INSPECTOR GENERAL 

Re: Request to Investigate Interior Appraisal Service Directorate 

U.S. Dept. oflnterior, Office of Inspector General, Evaluation Report on 

Dept. oflnterior's Appraisal Operations, Report No. WR-EV-085-0012-2009 

(Dec. 2009). 

In December 2009, NWE submitted a request to the ASD to review an appraisal 

performed on its Orange Hill mineral property located within the Wrangells St. Elias 

National Park in Alaska. NWE contended the contract appraiser was not qualified to 

appraise mineral property, the minerals valuation on which the ASD appraiser relied had 

previously been performed by a contractor to the NPS, both the NPS contractor and its NPS 

contracting officer lacked appraisal qualifications, and ASD' s contract appraisal disregarded a 

fundamental principle in valuation of property subject of governmental acquisition known as 

the "scope of the project rule." 

A week after NWE submitted its request for ASD to review its 2008 appraisal of the 

Orange Hill property, the OlD issued its most recent report critical of ASD's appraisal 

function (listed above). ASD recently responded to NWE's December 17, 2009 submission 

through letter dated April23, 2010. Therein it found no fault with the 2008 contract 

appraisal but failed to address any of the questions raised in NWE's December submission. 

NWE requests rhat your office investigate this matter more thoroughly than ASD 

bothered to. Please feel free to contact either myself or Wallace McGregor on behalf of 

Northwest Exploration if OlD has any questions on the matter. 

ends 

cc: Northwest Exploration JV 

(w/o ends) 

t!t \ Law~~~·t Attorney at Law 

2 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 11 
385 

LAWRENCE V. ALBERT 

Mr. Pat Pourchot 

Special Assistant to the Secretary 

of Interior for Alaska Affairs 

1689 "C" Street Ste. 100 

Anchorage, Alaska 99501 

ATTORNEY AT LAW 

P. 0. BOX 200934 

ANCHORAGE. ALASKA 99520 

TELEPHONE [907] Z-43-2172 

FAX !9071 243-5476 

April30, 2010 

Re: Orange Hill Patented Mining Claims in Wrangells-St. Elias National Park--

Valuation Dispute on Acquisition with DOl Appraisal Services Directorate 

Dear Mr. Pourchot: 

I represent Northwest Explorations Joint Venture (NWE), which owns patented 

mining claims within the Wrangells St. Elias National Park (WRST). The property is 

known as the Orange Hill mineral deposit. The National Park Service (NPS) has had an 

otftcial program for acquisition of mining claims within WRST since 1990. For years, my 

client has attempted to get the Park Service to undertake a bona fide mineral property 

valuation tor Orange Hill. 

The Interior Department Appraisal Services Directorate (ASD) finally authorized a 

property appraisal in August 2008. The contracting appraiser issued a report in September 

2008 opining that minerals development was not economically feasible, and therefore, this 

would not be the highest and best use of the property. However, ASD's contract appraiser 

did not perform a minerals valuation. Instead, the National Park Service (NPS) previously 

contracted for this work to an engineering consultant who was not an appraiser and then 

supplied its contract appraiser with the results. NWE subsequently retained its own 

consultant which arrived at a $45 million valuation for the deposit. Thus, nominally, there 

is a $45 million valuation dispute concerning this property. 

NWE thereafter authorized me to review AS D's handling of the appraisal process on 

Orange Hill. On December 17, 2009, I wrote to Ms. Helen Honse of the ASD Pacific 

Northwest Office in Portland Oregon. My letter attached a submittal entitled "Deficiencies 

in Appraisal Process of Orange Hill Mineral Property." A copy of my letter and 

memorandum are enclosed. Therein, NWE requested non binding arbitration on the 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 12 
386 

MR. PAT POURCHOT, U.S. DO! OFFICE OF SECRETARY 

Re: Valuation Dispute on Orange Hill Mineral Deposit, WRST 

valuation dispute through DOl's separate Office of Collaborative Dispute Resolution. 1 

NWE's submittal questioned the qualifications of ASD's contract appraiser to 

conduct a mineral property appraisal and the process used to conduct the mineral resource 

evaluation through the Park Service rather than ASD. In this regard, NWE noted the DOl 

Inspector General's criticism of ASD' s capability to perform specialty appraisals such as 

mineral property and meddling in the appraisal process by Interior client agencies such as the 

Park Service. One week after NWE's submission last December, the IG issued its most 

recent report critical of ASD. A copy of that report is enclosed for your consideration. 

After four months delay, ASD replied to NWE's letter on April27, 2010, copy 

attached. Ms. Honse declines to recommend alternative dispute resolution "due to the 

importance of maintaining the integrity of the appraisal process." However, the integrity of 

ASD's appraisal process should not provide an excuse to circumvent alternative dispute 

resolution (ADR). In fact, one of the benefits of ADR that we see is testing the integrity of 

Interior's appraisal process. As for the purported integrity of the ASD appraisal process, 

especially in regard to its appraisal of Orange Hill, we are copying the Inspector General on 

this matter. 

It is NWE's position that the Park Service has stifled mineral development in the 

Wrangells St. Elias Park since a 1985 court injunction and it has now used its police power 

to suppress valuation of this otherwise economic use of constitutionally protected property. 

Through the Administrative Disputes Resolution Act of 1996, along with the Uniform 

Relocation Assistance and Real Property Acquisition Policies Act of 1970, 42 U.S.C. § 4651, 

Congress has legislated that property owners should not be forced to litigate valuation 

disputes on property acquisition with Executive Branch agencies. 

NWE basically has two choices to pursue fair valuation of the Orange Hill mineral 

deposit: either seek alternative dispute resolution through a consensual process with the 

Interior Department, or request condemnation with a declaration of taking. The ASD seems 

Congress has established ADR as a national policy for all executive branch 

agencies, and the Interior Department has created the Office of Collaborative Dispute 

Resolution to implement this congressional policy. See Administrative Disputes Resolution 

Act of 1996, Pub. L. No. 104-320, codified at 5 U.S. C. §§ 571-83; Dept. oflnterior 

Manual, Part 112, Ch. 21 (effective date 10/07/05); Dept. oflnterior's Final Alternative 

Dispute Resolution Policy, 61 Fed.Reg. 40424 (Aug. 2, 1996). 

2 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 12 
387 

MR. PAT POURCHOT, U.S. DOl OFFICE OF SECRETARY 

Re: Valuation Dispute on Orange Hill Mineral Deposi~ WRST 

intent on foreclosing the first option in contravention of congressional policy. Consequently, 

if the Interior Department is not able to agree on a consensual procedure for resolving this 

valuation dispute, then NWE has no choice but to go to the Alaska congressional delegation 

and explain the Interior Department's refusal to implement the Adminisrrative Disputes 

Resolution Act and seek formal condemnation of the property. 

NWE seeks the assistance of your office on this difficult matter. Please feel free to 

contact me. 

ends 

cc: Hon. Lisa Murkowski, U.S. Senator 

Hon. Donald Young, U.S. Congressman 

Hon Mark Begich, U.S. Senator 

mcerely, 

~ xallt 

Lawrence V. Albert 

Attorney at Law 

Interior Department, Office of Inspector General 

(w/ ends) 

Northwest Explorations JV 

3 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 12 
388 

OFFICE OF 

INSPECTOR GENERAL 

U.S. DEPARTMENT OF THE INTERIOR 

Mr. Lawrence V. Albert 

Attorney at Law 

P.O. Box 200934 

Anchorage, Alaska 99520 

Dear Mr. Albert: 

MAY 27 2010 

The Office of Inspector General (OIG) received your April30, 2010 letter requesting an 

OIG investigation into the Department's Appraisal Services Directorate (ASD) for its failure to 

follow established appraisal procedures in valuation of mineral property for acquisition by the 

National Park Service (NPS). 

Review of your correspondence did not disclose any violations of law, regulation, policy, 

or procedure, and there was no indication that the appraisal process was manipulated by the NPS 

and ASD. Therefore, the OIG will not initiate an investigation at this time. 

We appreciate you communicating this matter to us. Your commitment in helping the 

DOl improve the effectiveness of its programs and operations benefits not only the Department 

but also the public we serve. If you need additional information about our referral, please 

contact Special Agent Edward Woo, who is a member of my staff, at (703) 487-5425. 

Sincerely, 

J!!.cti/-

Deputy Assistant Inspector General 

for Investigations 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 13 

Office of Investigations I Washington, D.C. 20240 
389 

United States Department of the Interior 

Mr. Lawrence V. Albert 

Attorney at Law 

P.O. Box 200934 

Anchorage, Alaska99520 

Dear Mr. Albert: 

OE8CEOFTHESECRETARY 

1689 C Street, Suite 1 00 

Anchorage, Alaska 99501·5151 

Thank you for your May 3, 2010, letter requesting that arbitration be initiated regarding the 

potential mining use, estate appraisal, and/or sale of the block of patented mining claims held by 

Northwest Explorations Joint Venture (NWEX) located within the Wrangell-St. Elias National 

Park and Preserve. 

I have inquired with the National Park Service (NPS) Regional Office about this matter. As you 

may know, the purpose of the Department's Appraisal Services Directorate is to provide an 

objective, independent appraisal process. Its appraisal of the property in this case has been 

completed, and is not subject to further alteration by the NPS or this office. Further formal 

arbitration has no precedent in this type of case. However, there is an option of further 

negotiations with the NPS outside of the formal Alternative Dispute Resolution process. I would 

encourage you to pursue this option. 

Thank you for bringing this to my attention. I wish you success in resolving this issue with the 

NPS-Alaska Regional Office. 

Pat Pourchot 

Special Assistant for Alaska Affairs 

cc: Sue Masica, Alaska Regional Director, National Park Service 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 14 
390 

United States Department of the Interior 

NATIONAL PARK SERVICE 

IN REPLY REFER TO: 

L1425 (AKRO-L) 

Honorable Don Young 

House of Representatives 

Attn: Catherine Pelty 

510 L Street, Suite 580 

Anchorage, Alaska 99501 

Dear Mr. Young: 

Alaska Region 

240 West5"' Avenue, Room 114 

Anchorage, Alaska 99501 

SEP 0 7 2010 

This responds to your letter of August 4, 2010, regarding a letter you received from Mr. 

Lawrence Albert concerning the possible purchase of a property located in Wrangell-St. Elias 

National Park and Preserve. The property is a 363-acre block of patented mining claims, owned 

by Northwest Explorations Joint Venture. 

The owners of the property are interested in selling it to the National Park Service (NPS) and the 

NPS is interested in purchasing it. To that end t.IJ.e owners and the NPS agreed to have a mining 

feasibility study and an appraisal of the property prepared. The feasibility study was contracted 

to a respected, private sector firm, Aventurine Engineering of Spokane, Washington. The 

owners made it a condition of proceeding with the acquisition process that Aventurine, 

specifically, complete the feasibility study. Aventurine's final report (February 2008) concluded 

that the claims were not economic to mine, and if mining were undertaken, there would be 

significant financial losses. 

[n August 2008 the Department of Interior, Office of Valuation Services (OVS) (formerly the 

Appraisal Services Directorate) contracted for an appraisal of the property. The contract 

appraiser concluded in his December 2008 report that mining was not economically feasible and 

that commercial lodge construction was the highest and best use of the property. The report was 

reviewed and approved by OVS, and on December 19, 2008, the NPS made an offer to the 

owners to purchase the property at the appraised value, which the owners subsequently rejected. 

On two later occasions the NPS has made offers to purchase the property at amounts above the 

appraised value, subject to the required Congressional reviews of such above appraisal offers, 

which the owners also rejected. The owners have stated that they believe the property is worth 

more than the offered amounts and are unwilling to sell at those amounts. 

Mr. Albert makes several assertions in his letters that the appraisal process was not conducted 

properly and that the Department of Interior should enter into an arbitration process. His 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 15 
391 

assertions have been reviewed by Departmental staff and the Office of the Solicitor and have 

been found to be without merit. 

We believe that we have proceeded in good faith to purchase the Northwest Explorations 

property on a willing seller/willing buyer basis, obtaining sound, independent evaluations of the 

property and its market value, and making fair offers to purchase. In the end it is the owners' 

decision whether to accept our offers, or to pursue other options with their property. 

Please let us know if we can provide any additional information about this matter. 

Sincerely, 

Sue E. Masica 

Regional Director 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 15 
392 

lN REPLY REFER TO: 

11425 (AKRO-L) 

Fred Gibson 

The George R. Brown Partnership, LP 

4700 First City Tower 

1001 Fannin 

Houston, TX 77002 

Dear Mr. Gibson: 

NATIONAL PARK SERVICE 

Alaska Reg1on 

240 West 5• Avenue, Room 114 

Anchorage, Alaska 9950! 

September 9, 2010 

In early July I had made a verbal offer to you, as an owner and representative of Northwest 

Explorations Joint Ventures, to purchase the Orange Hill patented mining claims. And in early 

August we further discussed the offer, at which time you informed me that the offer was being 

declined. Nonetheless, I wanted to follow up on our telephone discussions by presenting a 

written offer. Enclosed is a Coxporate Offer to Sell Real Property in the amount of$435,000. 

This offer is 50% in excess of the approved appraised value of the Orange Hill claims. Because 

the offer is in excess of the appraised value, ifNorthwest Explorations decided to proceed with 

this offer, the National Park Service would need to obtain the approval of the Appropriation 

Committees of the United States Congress before accepting it. Although we would diligently 

pursue obtaining such approval, the process can take six months or more. Consequently we have 

allowed for a nine month period for acceptance by the National Park Service {see item# 1 under 

"The terms and conditions of this offer" in the body of the offer). 

We make this offer at more than appraised value in an attempt to bring a satisfactory conclusion 

to a long-standing issue, at which both Northwest Explorations and the National Park Service 

have expended much time and effort over many years. The present offer is our best and final 

offer. We currently have sufficient funding to be able to complete this transaction. Future 

funding is uncertain. 

Please give this offer serious consideration, and contact me if you have any questions or 

concerns. 

Charles M. Gilbert 

Chief, Land Resources Program Center 

Enclosure 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 16 
393 

THE GEORGE R BROWN PARTNERSHIP, L.P. 

4700 FIRST CITY TOWF.R • 1001 fANNIN • HOUSTON, TX 77002-6792 • TELEPHONE: (713) 652-4901 

September 22, 2010 

Charles M. Gilbert 

Chief, Land Resources Program Center 

United States Department of the Interior 

National Parks Service 

Alaska Region 

240 West 51

h Avenue, Room 114 

Anchorage, AK 99501 

Dear Mr. Gilbert: 

I am in receipt of your letter of September 9, 2010. The members of the Management 

Committee join me in expressing thanks for your offer to purchase the Orange Hill Patented 

Mineral Claims. We fully agree with you that time is of the essence to bring this process to a 

conclusion and we share your goal to have the property conveyed to the National Park Service. 

As we discussed, the evaluation of a potential mining operation is a complex process that can 

result in significantly different answers depending on the assumptions made, the methodology 

involved and operational understanding. We envision a successful mining operation at Orange 

Hill and consequently view the value of the mineral estate to more properly represent the 

appraised value. Our best estimate remains a value of $45,000,000 in 2008 dollars using the 

discounted cash flow method. 

It is clear that our individual evaluations have arrived at different conclusions. However, we are 

willing to work with the National Park Service to arrive at a mutually agreeable value by means 

of dispute resolution as provided by law and propose that we embark on that process. We are 

certain that such negotiations carried out in good faith can achieve the mutually desired goal of 

conveying the mineral property to the National Park Service as envisioned by Congress in 

creating the Wrangell-St. Elias National Park and Preserve in 1 980. 

Sincerely, 

THE GEORGE R BROWN PARTNERSHIP LP 

Fred Gibson 

President 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 17 
394 

To require the Secretary ofinterior to pmticipate in alternative dispute resolution regarding 

acquisition of patented lands within units of the National Park System in Alaska, 

or alternatively, to authorize condemnation of same upon the owner's consent. 

IN THE HOUSE OF REPRESENTATIVES 

____ ,2011 

MR. YOUNG of Alaska introduced the following hill; which was referred to the Committee 

A BILL 

To reqmre the Secretary of Interior to participate in 

alternative dispute resolution regarding acquisition 

of patented lands within units of the National Park 

System in Alaska, or alternatively, to authorize 

condemnation of same upon the owner's consent. 

Be it enacted by the Senate and House of 

2 Representatives of the United States of America in Congress 

3 assembled, 

4 SECTION 1. REQUIRING THE SECRETARY OF INTERIOR TO 

5 PARTICIPATE IN ALTERNATIVE DISPUTE RESOLUTION. 

6 Any owner of a public land patent located within a 

7 unit of the National Park System in Alaska may request the 

8 Secretary of Interior to participate in alternative dispute 

9 resolution regarding valuation of the property for purposes 

10 of acquisition pursuant to the Administrative Disputes 

11 Resolution Act (5 U.S.C. 571-93), subject to the following 

12 conditions: 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 18 
395 

(1) Only owners of patented lands of the National 

2 Park System in Alaska shall be eligible to participate in 

3 alternative dispute resolution proceedings under this Act. 

4 (2) Congress finds that the considerations stated 

5 m 5 U.S.C. 572(b) do not apply to a dispute resolution 

6 proceeding on valuation authorized under this Act, and 

7 therefore, the Secretary may not object to a dispute 

8 resolution proceeding on such grounds. 

9 (3) If the owner of patented land requests 

10 arbitration pursuant to 5 U.S.C. 575, the Secretary is 

11 directed to consent to such request, however, the 

12 arbitration agreement may not specify a limitation on the 

13 maximum award pursuant to 5 U.S.C. 575(a)(2), and the 

14 proceeding shall be non binding on the parties pursuant to 

15 paragraph (4) herein. 

16 (4) Either party is authorized to vacate an award 

17 issued pursuant to an arbitration proceeding under 5 U.S. C. 

18 575 before the award becomes final pursuant to 5 U.S.C. 

19 580(b) by serving on all other parties written notice to that 

20 effect. 

21 (5) Subject to available funding, the Secretary is 

22 authorized to offer to purchase the patented land within 

23 ninety days following the entry of a final arbitration award 

24 or the conclusion of another form of dispute resolution 

25 proceeding conducted pursuant to this Act and consistent 

26 with its outcome. 

27 SECTION 2. PATENT OWNER'S CONSENT TO CONDEMNATION 

28 WITH TAKING. 

2 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 18 
396 

(a) If the Secretary declines to purchase patented 

2 land or the owner declines the Secretary's purchase offer 

3 within the ninety day period set forth in paragraph 5 of 

4 section 1, the owner may within one year consent to 

5 condemnation of its property with declaration of taking by 

6 the Secretary. 

7 (b) The owner's consent to condemnation shall be 

8 made in writing to the Secretary, and upon the Secretary's 

9 receipt of such consent all right, title and interest to the 

10 property, including aright of immediate possession, shall be 

11 immediately vested in the United States. 

12 (c) The procedure on condemnation of an owner's 

13 patented land shall be as follows: 

14 (1) Either the owner or the United States may 

15 initiate proceedings within six years of the date of 

16 Secretary's receipt of written consent, seeking a 

17 determination of just compensation in the District Court for 

18 the District of Alaska pursuant to the Declaration of Taking 

19 Act, sections 3114-15 of Title 40, United States Code. 

20 (2) The United States shall pay just compensation 

21 to the owner, including any deposits in the registry of the 

22 court, solely from the permanent judgment appropriation 

23 established pursuant to section1304, Title 31, United States 

24 Code and shall include accrued interest in the amount of 

25 judgment in accordance with section 3116 of Title 40, 

26 United States Code. 

27 (3) If the just compensation proceeding is settled 

28 prior to entry of judgment, the owner shall be paid just 

3 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 18 
397 

compensation according to paragraph (2). 

2 SECTION 3. PROHIBITION ON APPROPRIATIONS FOR THE 

3 NATIONAL PARK SERVICE. 

4 If the Secretary declines to participate in alternative 

5 dispute resolution according to Section 1 of this Act, then 

6 none of the funds appropriated or otherwise made available 

7 to the National Park Service pursuant to the appropriation 

8 act for the Department of Interior shall be obligated or 

9 expended for the unit of the National Park System in 

10 Alaska in which the patented land is located. 

11 SECTION 4. PROHIBITION ON APPROPRIATIONS FOR 

12 THE DEPARTMENT OF JUSTICE. 

13 If the Secretary declines to participate in alternative 

14 dispute resolution according to Section 1 of this Act, then 

15 none of the funds appropriated or otherwise made available 

16 to the Department of Justice pursuant to the appropriation 

17 act for that agency shall be obligated or expended to defend 

18 or otherwise represent the position of the Secretary for the 

19 unit of the National P:ark System in Alaska in which the 

20 patented land is located. 

(draft April1, 2011) 

(first revision April19, 2011) 

4 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 18 
398 

EXPLANATORY STATEMENT ACCOMPANYING 

DRAFT BILL ON ALTERNATNE DISPUTE RESOLUTION 

FOR PATENTED LANDS WITHIN NPS UNITS IN ALASKA 

The general purpose of the proposed bill is to provide relief for patented land 

owners who are in-holders within units of the National Park System in Alaska and 

who have been frustrated in their attempts to either develop their property to 

realize economic value thereon and/or the Park Service refuses to provide an 

acceptable valuation of the property pursuant to its land acquisition authority and 

appraisal practices of the Department of Interior. 

Section one of the bill incorporates with adjustments the provisions of the 

Administrative Disputes Resolution Act (ADRA), 5 U.S.C. § 571, et seq. The ADRA 

is established policy of the Executive Branch and the Interior Department has 

created the Office of Collaborative Dispute Resolution to implement its provisions. 

However, the National Park Service (NPS) refuses to apply the ADRA to resolution 

of disputes on property valuation for lands within Park System units in Alaska 

subject of an approved acquisition plan or policy. 

At a property owner's request, Section one of the bill requires the Secretary of 

Interior to participate in an alternative dispute resolution (ADR) proceeding 

authorized under the ADRA limited to the subject of property valuation. The 

conditions set forth in paragraphs (2) through (5) of Section one circumscribe in 

certain respects, and confer in other respects, the discretion of the Secretary with 

regard to the proceeding conducted pursuant to the ADRA and requested by the 

patented land owner. 

Paragraph (2) does not allow the Interior Department to decline to 

participate in ADR due to the policy considerations set forth in 5 U.S.C. § 572(a)(2), 

and the bill makes a congressional finding to the effect that such considerations do 

not apply to dispute resolution on property valuation. 

Paragraphs (3) and (4) address arbitration if that form of ADR is requested 

by a patented land owner. Paragraph (3) requires the Secretary to consent to 

arbitration if requested, however, paragraph (4) preserves the Interior 

Department's discretion on the outcome of the proceeding such that the Secretary 

may vacate an arbitration award in a timely manner and the proceeding in effect 

becomes non-binding arbitration. Paragraph (3) also precludes the Secretary from 

limiting the amount of an arbitration award since paragraph (4) allows the 

Secretary to vacate an award in any event. 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 18 
399 

Paragraph (5) authorizes the Secretary to offer to purchase the patented land 

upon the conclusion of an ADR proceeding, including an arbitration proceeding in 

which the award has become final, subject to the availability offunds for property 

acquisition. The bill itself does not appropriate funds for property acquisition, and 

hence, a delay from the conclusion of an ADR proceeding authorized under the bill 

until such time as funds are appropriated to acquire the property is recognized. 

Section two of the bill provides a separate remedy for an owner who opts to 

participate under Section one but the outcome of the ADR proceeding does not 

result in an offer to purchase the property, or the owner declines the Secretary's 

purchase offer if made. Section two authorizes the owner in such circumstance to 

consent to condemnation of its property with a declaration of taking pursuant to the 

Declaration of Taking Act, 40 U.S.C. §§ 3114-15. 

Sub-sections (b) and (c) of Section two incorporate relevant provisions of 

Public Law 105-83, Section 120, 111 Stat. 1543, 1564-66 (1997), which authorized 

condemnation with declaration of taking for consenting owners of patented and 

unpatented mining claims within the Kantishna Hills of Denali National Park & 

Preserve, Alaska. Several mining claimants participated in that legislation and 

several court actions were conducted such that substantial experience has been 

realized with regard to the Section 120 legislation. The template provided by that 

legislation is therefore viewed as appropriate for the proposed bill. 

Sections three and four of the bill operate as incentives for the Interior 

Department and the Justice Department as its legal representative to consent to a 

patented land owner's request for an ADR proceeding under the bill. Sections three 

and four state that if the Secretary of Interior refuses to consent to the form of ADR 

requested by a patented land owner within a unit of the National Park System in 

Alaska, then funds appropriated or otherwise made available for the Interior 

Department and the Justice Department shall be withheld with regard to 

operations of the Park System unit in which the property is located. 

(prepared April 19, 2011) 

2 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 18 
400 

The Honorable Ken Salazar 

Secretary of the U.S. Department 

Ofthe Interior 

1849 C Street NW 

Washington, D.C. 20240 

CECIL D. ANDRUS 

September 19, 2011 

RE: Request to order NPS to enter immediately into a dispute resolution process with the owners of the Orange 

Hill property within the Wrangell-St. Elias National Park 

Dear Ken: 

As a former Secretary of the Interior l well recognize the considerable demands on your time and the 

complexities of the many challenges which face any Secretary of the Interior. For that reason I haiTe almost 

always refrained from asking any successor to take a specific administrative action. This particular matter is 

the exception to the rule. 

I am respectfully asking that you order the National Park Service to immediately enter into a formal and 

binding dispute resolution process with a company called Northwest Explorations. One of the principals of that 

endeavor, Wallace McGregor, is a long·time personal friend of mine. I want to emphasize to you that he has 

never been a client nor ha\Te lever been retained by him or any of his partners. 

For over 15 years now l have watched with growing frustration and anger the National Park Service jerk this 

good man and his partners around in what can only be described as a callous, imperious, arrogant manner. It is 

clear to me that the NPS long ago embarked on a deliberate strategy of denying Mr. McGregor and partners any 

return on a de facto taking of a valid property right 

Unfortunately, l fear this is just another example of the high-handed behavior too many regional and state NPS 

directors in Alaska have exhibited oiTerthe years. This has lead to a clear alienation of Alaskan NPS personnel 

from the general population. 

!twas my now well-considered fear that this would happen which lead to my seriously considering 

recommending to President Carter during the d-Zlands debate that the candidate areas for Park status instead 

be declared wilderness area and managed by the U.S. Forest Service. With 20/20 hindsight l now wish I'd 

followed my instinct 

Some brief background is in order. 

The ORANGE HILL mineral property is a 363 acre parcel consisting of 18 patented mineral daims and one 5 

acre patented mill site located at the head of the Nabesna River within the Wrangell- St. Elias National Park At 

the time of the passage of ANILCA the property was the largest holding of contiguous patented and unpatented 

claims within the Wrangell Range and enclosed by the park boundaries. 

It goes without saying that the extensive mineral deposits covered by the patented claims are extremely 

valuable. Wally and his partners, however, early on acknowledged the compelling national interest in leaving 

the national park in a natural state. All they have ever sought is some reasonable token payment for the 

confiscation of a valid existing property righl 

lfyou were to examine the record as l have done, Mr. Secretary, you would be simply appalled by the conduct 

of the National Park Service. 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 19 
401 

The problem is this: At the time of ANILCA's passage, the property had been under extensive exploration by 

Northwest Explorations for a decade and by U.S, Borax and Chemical Co. for the prior three years as part of a 

five year term Exploration and Option ta Purchase Agreement with Northwest Explorations. 

ANILCA's passage brought all activity on the property to a h;dt (Corporations hate uncertainty when investing) 

and also raised the question whether there would ever be the right to mine. Given these unknowns, the term of 

the Purchase Agreement was extended 15 years to the year 1995 \vithout annual work commitments but with 

an escalating consideration based upon inflation and metal prices. 

Then in 1.986, the WRST General Management Plan (WRST GMP) was published citing the Orange Hill property 

as a "Priority Group llnholding", in short, the highest degree of threat to the WRST. Wlth the die, thus, cast 

that mining was out of the question, the parties mutually agreed to terminate the Option to Purchase 

Agreement. Northwest Explorations management then took the decisive step to- convey the patented dams to 

the National Park Service in compliance with the intent of Congress and they also allowed the unpatented 

claims to lapse. 

When the Record of Decision was published in 1990 it stated a goal to "Buy All Claims," Taking the government 

at its word, Northwest Exploration's management took immediate action to attempt to convey the patented 

claims to the National Park Service. 

Twenty~one years later this effort continues, Mr. Secretary. The record dearly shows the NPS has thwarted the 

effort to convey the patented claims by every disingenuous and devious means possible. In the process, I 

believe the National Park Service has shown its abiding cultural disregard for the law ewm to the extent of 

ignoring specific instructions of Congress. 

To date the National Park Service has steadfastly refused to conduct a mineral appraisal necessary for the 

determination of the property value. 

I believe there is a solution here that you can administratively mak~ happen, Mr. Secretary. Not withstanding 

the decades of insincere acts by the National Park Service, the means are readily available to achieve the goal 

by instructing the Director of the National Park Service to participate with Northwest Explorations In dispute 

resolution, as provided by law. 

Thereafter~ oversight of the resolution process by your office, Mr. Secretary~ will be necessary in order to 

assure honest cchduct by the National Park Service management. 

Finally, there must be the requirement that the National Park Service accept the findings of the arbitration, By 

the simple act of following the letter and intent of the law, justice will be served and the taking of Orange Hill 

Property will be brought to closure. 

I sincerely hope you can see your way dear to make this happen, Mr. Secretary. ltis the right action to take and 

for the right reasons. 

In advance, as always, thank you for your time and kind consideration. 

Sincerelyl 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 19 
402 

Copies to: 

Wallace McGregor and partners 

Larry Albert 

Rep. Don Young 

Rep. Mike Simpson 

Rep. Norm Dicks 

Senator Mark Begich 

Senator Lisa Murkowski 

Senator Mike Crapo 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 19 
403 

LAWRENCE V. ALBERT 

:Mr. McKie Campbell 

Republican Staff Director 

Senate Committee on Energy & 

Natural Resources 

304 Dirksen Senate Building 

Washington D.C. 20510 

ATTORNEY AT LAW 

P. 0. SOX 200934 

ANCHORAGE. ALASKA 99520 

TELEPHONE {907) Z43-Z!72 

FAX(907)243-5476 

January 9, 2012 

Re: Northwest Explorations JV /Orange Hill Mineral Deposit in AlaskaRequest for Alternative Dispute Resolution in Property Acquisition 

Dear Mr. Campbell: 

This letter follows a teleconference held on December 19, 2011 regarding Northwest 

Exploration Joint Venture's (NWE) efforts at obtaining a fair valuation of its patented 

mining claims 'W-ithin the Wrangells-St. Elias National Park & Preserve in Alaska (WRST). 

Participating in the teleconference were :Mr. Wallace McGregor ofl\1\)liE; Tim Olson, a 

consultant for NWE; Chris Carlson, an additional consultant for N\1\iE; and myself. 

One of the topics discussed was the National Park Service's (NPS) refusal to allow 

alternative dispute resolution (ADR) on valuation ofNWE's property. N\1\iE has repeatedly 

made this request in writing to varions government officials over the last three years without 

favorable results. NWE contends that ADR provides an efficient and reasonable resolution 

of the valuation dispute short of condemnation litigation. NPS's only response has been that 

ADR would compromise the integrity of the Interior Department's appraisal process and no 

precedent for its application exists. 

During the teleconference, you asked for background materials on ADR applied to 

the federal government, along ·with any experience in applying ADR to property acquisition 

or property valuation. This letter responds to your request. Additionally, this letter evaluates 

the bona fides of the NPS' objections to ADR. As a preliminary statement, I researched 

these topics two years ago in preparing l'<'WE's critique of the Interior Department's 

handling of Orange Hill valuation.1 

SeeN orthwest Explorations JV Submission to U.S. Department of Interior, 

Appraisal Services Directorate, Re: Deficiencies in Appraisal Process of Orange Hill Mineral 

Property, December 2009. 

Northwest Explorations JV Statelnent to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 20 
404 

MCKIE CAMPBELL, U.S. SEN. ENERGY COMMITTEE 

Re: Northwest Exploration/National Park Service Alternative Dispute Resolution 

Background on ADR Applied to the Federal Government 

In 1990, Congress enacted the Administrative Disputes Resolution Act (ADRA)." In 

its statement of findings, Congress declared "administrative procedure ... is intended to 

offer an prompt, expert and inexpensive means of resolving disputes as an alternative to 

litigation;" "alternative means of dispute resolution have been used in the private sector for 

many years and, in appropriate circumstances, have yielded decisions that are faster, less 

expensive, and less contentious;" "such alternative means can lead to more creative, efficient 

and sensible outcomes;" and "such alternative means can be used advantageously in a wide 

variety of administrative prograrns."3 

The ADRA applies to an "administrative program" of the Executive Branch 

generally.4 The ADRA requires each agency of the Executive Branch to adopt a policy that 

address the alternative means of dispute resolution and case management.5 The legislation 

does not compel ADR upon a private person's request but instead confers discretion upon 

the agency if the parties agree to such proceeding.6 The legislation authorizes arbitration if 

the agency agrees to this method, the agreement specifies a maximum amount of the award 

and, in the instance of binding arbitration, legal guidance regarding the agency's authority is 

followed. 7 The ADRA authorizes exceptions to utilization of i\DR if an agency finds that 

one or more policy considerations apply.8 

In 1994 the Interior Department proposed an interim ADR policy and in 1995 it 

promulgated a Final Alternative Dispute Resolution Policy? This policy implements the 

ADRA along v<:ith related legislation known as the Negotiated Rulemaking Act. In 2005, the 

Departmental Manual of the Interior Department was amended to include a new chapter that 

created the Office of Collaborative Action and Dispute Resolution.10 According to this 

guidance, the office oversees implementation of the ADRA within the Department of 

Pub. L. No. 101-552, 104 Stat. 2736-48, codified at, 5 U.S.C. §§ 571-83 (1990). 

The ADRA was amended in 1996. Pub. L. No. 104-320 110 Stat. 3870-76 (1996). Sen. 

Stevens was one of the sponsors of the 1990 legislation. 3 ADRA § 2, 104 Stat. 2736. 

5 U.S. C.§ 572(a); see also, id., § 571(2) (definition of"administrative program''). 

ADRA § 3(a), 104 Stat. 2736. 

5 U.S.C. § 572(a). 

Id., § 575. 

I d., § 572(b ). 

59 Fed. Reg. 30368 Cfune 13, 1994) (interim policy); 61 Fed. Reg. 40424 (Aug. 

2, 1996) (final policy). 10 U.S. Dept. oflnterior, Departmental Manual, 112 DM Ch. 21 (effective Oct. 

7, 2005). 

Northwest Explorations JV State~ent to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 20 
405 

MCKIE CAMPBELL, U.S. SEN. ENERGY COMMITTEE 

Re: Northwest Exploration/National Park Service Alternative Dispute Resolution 

Interior. Presently, the Interior Department has an Office of Collaborative Action and 

Dispute Resolution domiciled in Washington, D.C. along with a website detailing its 

program. 11 

Application of ADR to Property Acquisition or Valuation 

Prior to ]\j'\1{/E's submission to the Appraisal Service Directorate io December 2009, I 

attempted to determioe whether ADR had been applied to federal property acquisition or 

valuation in conjunction with acquisition. I could not find any cases arisiog under the 

AD~-\, however, my research was limited to online queries only followed by a few telephone 

calls. I did not submit a FOIA request to Interior's Office of Collaborative Dispute 

Resolution. I did talk to a staff person io that office and he was unaware of any application 

to property acquisition or valuation. 

I did became aware of 1988 legislation that addressed ADR in context of 

public land exchanges with property ownersY Public lands legislation typically includes a 

provision authorizing property acquisition "by purchase, donation, exchange or otherwise." 

ANILCA contains such a provision and so does FLPMA. 13 Land exchanges with the federal 

government generally require a determination of equivalent value, 14 which through 

implementing regulations, involves appraisal on the subject properties. 

Prior to the 1988 legislation, FLPMA authorized the Secretaries ofinterior and 

Agriculture to engage in land exchangcs.15 The Federal Land Exchange Facilitation Act 

(FLEFA) amended FLPl'viA to authorize resolution of appraisal disputes on proposed land 

exchanges.16 With regard to exchanges on lands administered by Interior, FLELA authorizes 

the Secretary to arbitrate or utilize other ADR if the parties disagree on valuation. 17 If 

arbitration is utilized, this is not binding as the legislation authorizes either party to withdraw 

from the land exchange. 18 

II 

12 

13 

§ 1715(a). 14 

§ 1716(b). 15 

16 

17 

IS 

Seewww.doi.gov/pmb/cadr/index.cfm OastvisitedJan. 5, 2012). 

Pub. L. No. 100-409, 102 Stat 1086-94 (1988). 

ANILCA § 1302(a), 16 U.S. C.§ 3192(a); FLPMA § 205(a), 43 U.S.C. 

ANILCA § 1302(h), 16 U.S.C. § 3192(h); FLPMA § 206(b), 43 U.S.C. 

FLPMA § 206,43 U.S.C. § 1716. 

FLEL'\ § 3(a), 102 Stat. 1087, codified at 43 U.S. C.§ 1716(d). 

I d. 

43 u.s.c. § 1716(d)(3). 

Northwest Explorations JV Statefuent to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 20 
406 

MCKIE CAMPBELL, U.S. SEN. ENERGY COMMITTEE 

Re: Northwest Exploration/National Park Service Alternative Dispute Resolution 

It appears that Interior and BLM have experience applying the ADR provisions in the 

federal land exchange legislation. In 1998, a House Committee conducted a hearing on 

implementation ofFLELA. 19 The hearing focused on lands in Utah and appraisal difficulties 

to effectuate the exchanges. In discussing disagreements on valuation, ,_.-i_tnesses mentioned 

use of the ADR provision in particular instances.20 The BLM Director described the usage 

of ADR generally in land exchanges/1 and a land exchange facilitator mentioned its 

application in a particular case. 22 There may be further instances of ADR under FLELA that 

were not disclosed at the 1998 hearing. 

I have not initiated a FOIA request as to application of the ADR provision in the 

public land exchange legislation. My limited review of materials regarding FLELA suggests 

that valuation of proposed exchanges was controversial and there are one or more 

governmental reports evaluating its effectiveness23 The controversy relates to the difficulties 

of concluding land exchanges for large numbers of disparate parcels, private lands offered 

for exchange being subject of environmental restrictions, BLM officials being pressured to 

achieve results, and serious disputes about valuation. The controversy with land exchanges 

under FLEL\ does not apparently pertain to its ADR features. 

Evaluating the Bona Fides of NPS Objections to ADR 

Thus far, the NPS has identified two objections to utilizing ADR on valuation of the 

Orange Hill for acquisition: first, ADR would compromise the integrity of the Interior 

Department's appraisal process/4 and second, no precedent for its application exists.25 These 

objections are conclusory and lack merit for the following reasons: 

19 See Hearing on Bureau of Land Management Realty and Appraisal Issues, before the 

Subcomm. on Nat'! Parks & Pub. Lands, Comm. on Resources, 105th Cong., 2d Sess (1998) 

(Serial No. 105-86). 20 Id. atS-6, 13-14,24. 21 !d. at 5-6 (testimony of Pat Shea, BLM Director). 22 Id. at 24 (testimony of Tom Glass, Western Public Land Group, Inc.). 23 See Appraisal Foundation, Evaluation of the Appraisal Organization of the 

Department of Interior, Bureau of Land Management, prepared for U.S. BLM Asst. Director, 

Minerals, Realty & Resources Protection (2002); U.S. Dept. of Interior, Office of Inspector 

General, Land Exchanges and Acquisitions, Bureau of Land Management, Utah State Office, Report 

No. 2001-I-413 (2001). 24 Letter from Helen L Honse, Regional Appraiser, U.S. Dept. Interior, 

Appraisal Service Directorate, to Lawrence V. Albert, dated April27, 2010. 25 Letter from Pat Pourchot, Special Asst. for Alaska Affairs, U.S. Dept. of 

Interior, Office of the Secretary, to Lawrence V. Albert, dated June 22, 2010. 

Northwest Explorations JV Statefuent to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 20 
407 

MCKIE CAMPBELL, U.S. SEN. ENERGY COMMITTEE 

Re: Northwest Exploration/National Park Service Alternative Dispute Resolution 

As to the integrity of the Interior Department's appraisal process, the premise seems 

to be this is infallible and always produces proper results. Otherwise, an administrative 

process that yields flawed and improper results cannot be defended as having integrity. That 

the Interior Department's appraisal process is fallible and has yielded unsatisfactory results 

has been reported numerous times over the last thirty years through investigations of the 

General Accounting Office and the Interior Department's Office of Inspector General, 

among other organizations.26 

As a former BLM Director stated before a House Committee re"-:iewing FLELA, 

"different forms of mediation or dispute resolution techniques may be used to resolve the 

disagreement [as to valuation], The process is premised on the theory that reasonable people 

can reasonably disagree with the appraiser's analysis!' Thus, as a sister agency in the 

Department of the Interior, the BLM apparently disagrees with the NPS' view that the 

integrity of its appraisal process bars ADR. 

A presumption of :integrity in Interior's appraisal process does not readily fit any of 

the policy exceptions Congress recognized in the ADR,i\, and the :\IPS has not couched its 

objection in context of the policy grounds for not applying ADR under the legislation. 

The NPS' concern for preserving the integrity of the appraisal process may be 

grounded on the Uniform Standards of Professional Appraisal Practice (USPAP). 27 

However, nothing in NWE's request for ADR suggests that established appraisal standards 

be disregarded. To the contrary, NWE's December 2009 submission to Interior's Appraisal 

Services Directorate contends that :its valuation of Orange Hill violated the USP AP 

standards. The crux of the valuation :issue :is :interpretation and application of established 

appraisal standards. 

As to the objection regarding a lack of precedent, this :is a poor excuse for not 

26 See, e.g., U.S. General Accounting Office, Interior's Land Appraisal Services: 

Adion.r Need to Improve Compliance with AppraisalS tandards, Increase Efjicimcy and Broaden Oversight, 

Report No. GA0-06-1050 (2006); U.S. Dept. oflnter:ior, Office oflnspector General, Audit 

Report: Land Acquisition Activities, National Park Service, Report No. 99-I-518 (1999); U.S. Dept. 

oflnterior, Office oflnspector General, Land Acquisitions Conducted withAssi.rtance ofNonprofit 

Or;ganization.r, Report No. 92-I-833 (1992); U.S. General Accounting Office, Report to the 

Chairman, Subcomm. on Mines & Mining, House Comm. on Interior & Insular Affairs, 

A1ining on National Park Service Landr: What Is at Stake?, Report No. EMD-81-119 (1981); U.S. 

Dept. of Interior, Office of Inspector General, Special Review of Land Acquisition Policies and 

Practices in the National Park Service, Report No. E-F\V'-NPS-5-81(a) (1981). 27 See Helen Honse letter to La·wrence V. Albert, supra note (13), referencing the 

USPAP standards along with the Uniform Appraisal Standards for Federal Land Acquisition. 

Northwest Explorations JV Statefuent to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 20 
408 

MCKIE CAMPBELL, U.S. SEN. ENERGY COMMITTEE 

Re: Northwest Exploration!National Park Service Alternative Dispute Resolution 

applying ADR to property valuation and acquisition. Clearly, the absence of a precedent 

should not bar an Executive Branch agency from implementing the policy objectives set 

forth in the ADRA. Rather, Congress counselled otherwise in finding ADR "can lead to 

more creative, efficient and sensible outcomes." Furthermore, my limited investigation 

indicates BLM has had experience applying ADR to valuation disputes associated with 

public land exchanges under the FLELA. 

Conclusion 

Valuation of the Orange Hill property using ADR is legitimate. This can be 

accomplished according to the ADRA legislation and implemented through the Interior 

Department's Office of Collaborative Action and Dispute Resolution. There are sound 

public policy reasons for applying ADR to Orange Hill by comparison to a condemnation 

action. These include fairness for the affected property owner, efficiency for the public land 

manager and fiscal economy for the taxpayer. 

This letter has documented authority for ADR in the federal government. I have not 

analyzed ADR practice in the Interior Department nor property valuation specifically 

because this would be quite an undertaking. A review of ADR applied to property valuation 

under FLEU suggests a point of departure for such project. If the NPS's objections 

continue to be a concern, I suggest the Congressional Research Service investigate the matter 

A thorough, independent investigation that commands NPS' attention would be welcome. 

Please feel free to contact Northwest Explorations, myself or its consultants if you 

have further questions regarding application of ADR to valuation of the Orange Hill 

property. 

cc: Northwest ExplorationJV 

Tim Olson 

Chris Carlson, Carlson Strategies 

J.P. Tangen, Esq. 

Northwest Explorations JV Stat~ent to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 20 
409 

GEO-ENTERPRISES, INC. 

1212 N. Washington St. Ste. 132 

Spokane, WA 99201 

January 31, 2012 

The Honorable Ken Salazar 

Secretary of the U. S. Department of the Interior 

1849 C Street West 

Washington, D, C. 20240 

Re: Orange Hill Taking 

Dear Secretary Salazar: 

Reference is made to former Interior Secretary and Idaho Governor Cecil 0. Andrus' 

letter dated September 19, 2010 in which he stated, "By the simple act of following the 

letter and intent of the law, justice will be served and the taking of the Orange Hill 

Property will be brought to closure." In so stating the purpose for action, Governor 

Andrus succinctly defined his request to you in terms of Constitutional law that states 

"nor shall private property be taken for public use, without just compensation.'' 

A bit of history will be helpful to an understanding of the need to bring the Orange Hill 

Taking to closure. Northwest Explorations Joint Venture was organi;red in 1970. By 

1977, after seven years of extensive exploration by core drilling, the deposit was 

determined to have a reserve estimated to be 165 million tons at a copper equivalent 

grade of 0. 4%. A study conducted in 2009 by the National Park Service, drew the same 

remarkable conclusion with an estimate of the resource at 172.2 million tons with a 

copper equivalent grade of 0. 42%. Thus, there is no disagreement on the magnitude of 

the deposit. Based upon US Geological Survey criteria, the Orange Hill deposit is among 

the top 15% of the largest copper deposits in the world. As such it is categorized as a 

World Class copper deposit. 

A fact for further consideration is that at the time of the enactment of ANlLCA in 1980, 

the property was in the fourth year of a five year term Exploration and Option to 

Purchase Agreement with U.S. Borax and Chemical Co. Thus, at the time of the Taking, 

the venture was within two years of reaping the benefits of it's decade long investment 

in the exploration of Orange Hill. As evidence of the interest of U.S. Borax and Chemical 

Co. in acquiring the property, the Purchase Agreement was extended to 1994 on the 

premise that ultimately mining would be allowed. 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 21 
410 

Secretary Salazar 

January 31, 2012 

Page Two 

When the WRST General Management land Protection Plan was published in 1986 

identifying the Orange Hill property as a major threat to the Park the parties terminated 

the agreement by mutual agreement. Northwest Explorations' management thereafter 

took and has maintained the position of accepting the intent of Congress and has sought 

solely to convey the property to the National Park Service for a fair and equitable 

compensation. 

Let it be said that the history of NPS refusal to consider attributing a value to the 

mineral estate and thereby, to deny compensation, stands as a record of a serious 

abrogation of a bask Constitutional Right. The Taking has impacted a broad spectrum of 

citizens, the shareholders of all the joint Venture partners. In the case of the GeeEnterprise shareholders, most have passed on. Let it be said that I am determined to 

pass as a free citizen, not one to be mourned for his loss of an essential Constitutional 

Right. 

I dose, therefore, with a request. In making your decision regarding the 

recommendation of Governor Andrus, I ask only that your decision be determined by 

abiding by the terms of Amendment V Bill of Rights. 

Wallace McGregor 

President 

CC: Cecil Andrus 

Senator Mark Begich 

Senator Lisa Murkowski 

Senator Patty Murray 

Senator Maria Cantwell 

Rep. Cathy McMorris-Rodgers 

Rep. Mike Simpson 

Rep. Don Young 

Rep. Norm Dicks 

Northwest Explorations JV Statement to Sen. Energy Committee 

Hearing on Implementation of ANILCA 

Attachment 21 
411 

U.S. Senator Lisa Murkowski 

Chair, Senate Energy & Natural Resources Committee 

304 Dirksen Senate Building 

Washington, D.C. 20510 

Dear Senator Murkowski: 

l 

The Resource Development Council for Alaska, Inc.(RDC) is writing to offer the Senate 

Energy & Natural Resources Committee our perspective on the Alaska National Interest 

Lands Conservation Act [ANILCA) and suggestions for improvements to this landmark act. 

The 35th anniversary of ANILCA's passage is also an excellent occasion to address 

implementation of the law and its impact on Alaska. 

RDC is an Alaska-based business association comprised of individuals and companies from 

Alaska's oil and gas, mining, forest products, tourism and fisheries industries. RDC's 

membership includes Alaska Native Corporations, local communities, organized labor, and 

industry support firms. ROC's purpose is to encourage a strong, diversified private sector 

in Alaska and expand the state's economic base through the responsible development of 

our natural resources. 

In 1980, after nine years of debate and struggle, Congress passed ANILCA, setting aside 

more than 104 million acres of federal lands in Alaska in conservation system units 

(CSUs). This sweeping law enlarged the federal acreage dedicated to conservation 

purposes in the state to 148 million acres, constituting 70 percent of all national park 

lands in America, 80 percent of wildlife refuge acreage, and 53 percent of designated 

Wilderness in the National Wilderness Preservation System. Federal Wilderness in Alaska, 

if combined into one block, would make the 11th largest state in the U.S. To put the 49th 

state's federal Wilderness into another light, it is larger than each of the following states: 

Florida, Illinois, Minnesota, New York and Washington. It is bigger than the combined size 

of Maine, New Hampshire, Vermont, Massachusetts, Rhode Island, Connecticut, New 

Jersey, Delaware and Maryland. 

The passage of ANILCA had significant impacts on Alaska and its local communities that 

still cannot be fully quantified. For example, it placed known mineral deposits and mineral 

belts within conservation unit systems, and drew boundaries that blocked natural 

transportation routes, essentially foreclosing development of deposits on Bureau of Land 

Management (ELM) land, state, and Native-owned lands. Specifically, some of the best 

state-owned mineral lands in the southern Brooks Range will only have value if 

transportation corridors are permitted through federal units. 

Ironically, twenty-plus years before the passage of ANILCA. Alaska statehood was won on 

the expectation that development of the state's vast natural resources would build and 

sustain a healthy economy in the north. In early statehood debates, many politicians in 

Washington, D.C. doubted Alaska could build an economy and contribute to the union. 

Alaskans prevailed in its statehood aspirations after the discovery of oiL 
412 

ROC ANILCA Comments to Senate Energy & N01tural Resources Committee Page 2 ofS 

However, Alaskans feared then, as many still do today, that if future development were blocked, the state could 

lose its ability to support itself. Since statehood in 1959, Alaska's economy has grown immensely, largely due to 

the development of the North Slope's oil fields, which are located on state land. Oil and gas production in the 

Cook Inlet region of Southcentral Alaska, as well as the development of major metal mines across the state, and 

the development of a sustainable timber based economy in southeast Alaska underpinned local economies, 

sustaining thousands of Alaskan families. Likewise, responsible development of coal and world-class fisheries 

contributed to the economy. 

Alaska's vast national parks and open lands have also attracted millions of visitors to the state, building tourism 

into a major seasonal industry. While giving credit to the state's parks and refuges, many Alaskans do believe 

federal management is too restrictive and has held back potential growth in other industries, including tourism. 

For example, unlike Lower 48 parks and refuges, the vast majority of the Alaska units have no road access and 

few facilities such as campgrounds and visitor centers. Alaska's limited road system reaches only five of 17 

National Park Service areas in the state. Access to those five areas is extremely limited. To get to the other 12 

parks, visitors must fly in at a high cost With the exception of high-end private lodges, there are no public 

facilities such as campgrounds and hotels in those parks. 

Aside from the narrow Trans-Alaska Pipeline System (TAPS) corridor, it is impossible to cross the vast Alaska 

mainland from north to south or east to west without entering a restrictive CSU. While the extensive network of 

conservation units has preserved a great portion of Alaska, the cumulative overlay of federal land withdrawals 

has posed a challenge to reach natural resources on lands surrounded by these units, despite a provision in 

ANILCA addressing access corridors inside CSUs, These units also pose a challenge to the future construction of 

surface transportation corridors and power grids to connect Alaska's towns and villages, most of which remain 

isolated and accessible only by air, which itself is often unreliable due to poor weather. 

ANILCA Special Provisions 

In addition to adding more than 104 million acres to existing CSUs in Alaska, ANILCA contained numerous 

unique provisions to address Alaska's needs for economic development on state and private lands, for 

transportation and utility infrastructure, and to protect continued uses of federal lands by Alaskans for 

subsistence, recreation, and commercial opportunities. As President Carter said upon signing ANILCA, "[this] 

strikes a balance between protecting areas of great beauly and value and allowing development of Alaska's vital 

oil and gas and mineral and timber resources." 

AN!LCA's special provisions included ensuring the ability of all non-federal landowners to develop and access 

their lands outside and within the CSU boundaries, ended the use of the Antiquities Act for large federal land 

withdrawals, and confirmed state management of its fish, wildlife, and water resources on all lands in the state. 

ANlLCA required management plans for each of the CSUs that the federal agencies completed with extensive 

consultation with the public, state, and Native corporations in the 1980s. These plans and related rule making 

memorialized 'the deal'; i.e., recognized federal management authority only applied to federal lands, established 

a process to authorize transportation and other infrastructure, and confirmed the state's primacy in 

management offish, wildlife, and waters. The Alaska Land Use Council, composed of heads in Alaska of the 

federal and state agencies and Native interests, reviewed all such management plans and regulations for 

consistency with ANILCA and sat at a common table to resolve issues. 

The 'deal' under siege 

Now, 35 years after passage of ANILCA, inventive federal agency and judicial interpretations are incrementally 

and individually acting to diminish these unique provisions. Regulations and policies technically cannot trump 
413 

RDC AN!LCA Comments to Senate Energy & Natural Resources Committee Page 3 of8 

law, but, since the Alaska Land Use Council sunset in 1990, no forum provides a mechanism to address 

resolution except those rare instances Congress steps in. Judicial review is lengthy, expensive, and often gives 

deference to the federal agencies without recognizing the balance of interwoven ANILCA provisions. This 

vacuum in oversight leaves the agencies to reinterpretations through policy and regulatory changes that erode 

ANILCA's protections. The following illustrate some current examples: 

In 1996 rulemaking, the National Park Service (NPS) expanded its authority to state waterways: In 

ANILCA, Congress limited application of federal rules to federal lands, and the 1980s Alaska park and 

refuge management plans reflected this understanding. In 1996, NPS revised its nationwide regulations 

to broadly expand their authority onto state-owned navigable waters based on reinterpretation of a 

1976 Act. NPS began enforcing its national regulations on state-owned lakes and rivers: e.g., limiting 

Alaska residents from using state-authorized subsistence fishing methods [nets in Lake Clark, fish 

wheels in the Copper River], required permits for commercial dog team tours on the frozen Yukon 

River; threatened to cite state officers for using personal watercraft to conduct enforcement on the 

state-owned Naknek River; regulating boat storage and mooring buoys in Lake Clark; and threatened to 

cite a hunter on a state waterway for use of a state-authorized airboat to access traditional hunt areas 

outside the park- he later sued. 

The Ninth Circuit Court of Appeals in Sturgeon v. Masica dramatically expanded NPS authority to nonfederal lands, including state and Native corporation lands. Amicus briefs filed by Alaska Native 

corporations, State of Alaska, and many others believe Congress through ANILCA exempted non-federal 

lands from park and refuge unit regulations to assure state and Native corporations full rights to 

develop their lands under the Statehood Act and Alaska Native Claims Settlement Act [ANCSA). 

Nationwide park regulations now applying to mining and oil and gas development on Alaska inholdings 

essentially renders the protection of ANILCA Section 103 meaningless. The federal court's decision is 

contrary to the plain language of ANILCA, ignores the context under which Section 103[c] was enacted, 

undermines the congressional promises of ANILCA and will have wide ranging consequences for 

interests that depend on the development and use of inholdings in Alaska. After nine years and great 

expense, this hunter's suit will be heard january 20, 2016 by the U.S. Supreme Court We are hopeful the 

Supreme Court will reverse the Ninth Circuit Court's decision. 

Based on the 2014 Ninth Circuit Court decision in Sturgeon v. Masica (above), on October 26,2015, 

NPS proposed regulations that eliminate the exemption for oil and gas operations in Alaska, thus 

applying the national Part 9 mining regulations to development on non-federal lands: NPS 

proposes [80 FR 206, 65572] to apply its national mining regulations to any oil and gas development of 

the two million acres of non-federal lands and subsurface estate in national park units in Alaska, which 

have been exempt under ANILCA for 35 years. The rulemaking recognizes the ANILCA guarantee of 

access to in holdings under Alaska-specific regulations at 43 CFR Part 36, but that guarantee may be 

hollow if the Supreme Court upholds NPS regulation of activities on non-federal land. 

ANILCA struck a balance between preservation of/and and allowing development of Alaska's vital 

oil, gas, mineral, and timber resources to sustain the economy, yet a wave of new land withdrawals 

threaten to destroy this balance. Despite the fact that most federal lands in Alaska are either closed to 

development or severely restrict such activity, federal policymakers are moving to close millions of 

additional onshore and offshore acres in Alaska to resource development. In just a two-week period in 

early 2015, the federal government converted 12.2 million acres within the Arctic National Wildlife 

Refuge [ANWR) into de facta wilderness and permanently withdrew 9.8 million additional acres in the 

offshore Arctic from energy development. This came after the U.S. Department of the Interior removed 

approximately half of the National Petroleum Reserve-Alaska [NPR-A) from oil and gas leasing. 
414 

ROC ANILCA Comments to Senate Energy & Natural Resources Committee Page 4 of8 

BLM is in the process of designating Areas of Critical Environmental Concern (ACEC) across Alaska, 

including 685,000 acres in the Eastern Interior's Fortymile Mining District, curtailing or 

prohibiting future access and development. ACECs can be managed more restrictively than CSUs 

under ANILCA, including wilderness. The designation and application of ACECs has been highly 

subjective and unjustified, especially considering the BLM's mandate to manage lands for multiple uses. 

ACECs designations have occurred without the incorporation of sound science or a compelling body of 

research and information to justify the need for such closures, especially given the sharp decreased 

availability of public lands available for responsible resource development As noted in the December 3, 

2015 testimony of the Citizens Advisory Commission on Federal Areas [CACFA), "this overly unilateral 

and overly employed approach to land use designation ignores the ecological, social and legal context in 

Alaska, and is strongly reminiscent of'land freezes' which prompted Congress to require significant 

restraint." 

Overall, ACECs in Alaska can be hundreds of thousands to over a million acres in size, set in place 

through a designation process lacking serious consideration of scale or scope. RDC believes use of 

ACECs in Alaska is occurring well beyond congressional intent under the Federal Land Management 

Policy Act [FLMPA). This and more has occurred in conjunction with a series of major federal rulesfrom significant expansion of ''Waters of the United States" to the Environmental Protection Agency's 

climate regulations that will bring additional costs and severe consequences for future energy and 

mining development in Alaska. 

The implementation of the Roadless Rule in the Tongass and Chugach National Forests clearly 

violates the spirit and intent of the 'no more' withdrawal intent of ANILCA. The Road less Rule 

circumvents the spirit and intent of AN!LCA by not explicitly calling roadless areas a new CSU, but in 

essence achieving the same outcome of limiting virtually any activities. Application of the Roadless Rule 

in Alaska completely obliterated one of ANILCA's cherished promises: that Congress' careful balance 

between the national interest in conservation and Alaska's social and economic needs should not be 

disturbed. The Joss of this foundational premise has resulted in severe economic impacts to local 

communities in Southeast Alaska and has sharply curtailed responsible and sustainable timber harvests 

in the nation's largest national forest Before the Roadless Rule was put in place in 2001, the forest 

products industry in Alaska provided thousands of well-paying jobs to local residents. Today the 

industry accounts for only several hundred. 

Federal agency study and recommendation for new wild and scenic rivers designations in Alaska 

violates ANILCA's 'no more clause.' Federal land managers have routinely ignored Section 1326[b), a 

key provision of ANILCA which states that "no further studies of federal lands in the State of Alaska for 

the single purpose of considering the establishment of a conservation system unit ... or for related or 

similar purposes shall be conducted unless authorized by this Act or further Act of Congress." Federal 

agencies have commonly navigated around Section 1326[b) by conducting wilderness and wild and 

scenic river reviews in conjunction with updating land management plans. The agencies claim that 

because the studies are conducted in conjunction with management plan revisions, they are not 

conducted "for the single purpose" of establishing a new conservation system unit. Moreover, area and 

rivers reviewed and recommended for designation are protectively managed until Congress acts, or 

indefinitely if Congress does not act. BLM has been conducting wild and scenic river reviews in all of its 

land management plans in Alaska and the number of rivers involved is astonishing. RDC agrees with 

CACF A that these and similar reviews violate ANLICA. Wild and scenic rivers and wilderness areas are 

conservation system units, and Section 1326[b) prohibits studies, which consider the establishment of 

conservation system units unless authorized by ANILCA or Congress. Federal agencies claim Section 

[d)[1) of the Wild and Scenic Rivers Act provides the authority to conduct "agency-identified" reviews, 
415 

RDC AN!LCA Comments to Senate Energy & Natural Resources Committee Pag:c 5 ofB 

but Section 1326(b) requires congressional authorization. Moreover, internal agency policies require 

any rivers studied for potential recommendation are protected indefinitely. 

Added on top of previous land withdrawals, the federal government is now either blocking or making it most 

difficult for responsible development to move forward on most resource-rich lands in Alaska. New withdrawals 

and a number of additional federal rules are hindering the ability of Alaskans to produce energy, minerals, and 

timber for America. Such actions also undercut Alaska's economy and deprives the state of much needed 

revenue. It also deprives Alaskans of jobs to support their families. 

New federal land withdrawals violate Alaska protections under ANILCA 

The new wave of federal land withdrawals is in direct conflict with special protections afforded to Alaska under 

ANILCA In exchange for withdrawing so much of Alaska from multiple-use management, Congress attempted to 

accommodate the unique characteristics of Alaska and the Alaskan way of life in writing ANILCA Congress 

included numerous exemptions for Alaskans, known as the "Alaska Protections." As noted earlier, these 

provisions were for access and continued use of valid existing rights, lands and resources. These special 

provisions were to allow access to in holdings and provide continued use of federal lands for recreation, hunting, 

and the pursuit of economic prosperity. 

More than 20 million acres of combined private and state lands are located within the boundaries of CSUs in 

Alaska, and millions more acres can only be accessed by crossing these units. The private lands include surface 

and subsurface land conveyed to Alaska Natives under ANCSA. As noted, recognizing these and other unique 

circumstances, Congress wrote the Alaska protections to provide for traditional uses and ensure that the state 

and Native corporations could use and develop their lands under ANCSA and the Statehood Act to sustain the 

economy and for the economic benefit of the Alaska Native people. 

Access was at the core of the protections- access to Native corporation lands, access to Native allotments, 

access to homesteads, and access to state-owned lands. Access was such a big issue that one major section of the 

act, Title XI, focused entirely on new access routes where none existed before. ANILCA also reaffirmed valid 

existing rights to access historic trails, private in-holdings, and existing cabins. 

To some, the most important special protection in ANILCA was the 'no more' clause, which stated that no more 

land in Alaska shall be withdrawn for conservation purposes without the approval of Congress. As noted earlier, 

the clause was included in the Jaw to protect Alaska from additional land withdrawals in the future. Section 

101(d) of the act states that the need for more parks, preserves, monuments, wild and scenic rivers, and refuges 

in Alaska has been met 

Additional protections in ANILCA covered subsistence activities, including hunting and fishing, and allowing for 

motorized travel on federal lands for subsistence and traditional activities. Additionally, miners with existing 

claims could continue to develop and mine their claims if they could meet all the necessary requirements. Yet in 

the four decades ANILCA has been in place, the state, as well as miners and others have clashed with federal 

land agencies, claiming managers have broken promises granted under the act to preserve access and valid 

existing rights. They contend access and resource development have been challenged, and in some cases, 

outright stitled by a constricting tangle of federal restrictions, policies, and regulations. Unfortunately, many of 

the promises and protections have not been kept 

As noted, more than 40 million acres of Alaska have been withdrawn or proposed for protection over the past 

seven years, including half of NPR-A and almost all of ANWR through proposed wilderness designations, clearly 

undercutting the 'no more' clause. Nearly 15 million acres have been removed from the timber base in Alaska's 

two national forests, leading to the demise of the forest products industry. 
416 

RDC AN!LCA Comments to Senate Energy & Natural Resources Committee Pag-e 6 of8 

Clearly, there has been a lack of balance in ANlLCA's implementation, especially with regard to land 

withdrawals and access to CSUs. The most glaring example is Section 1002 of ANlLCA, which outlined a process 

by which the state could extract petroleum from the coastal plain of ANWR, an area comprising only eight 

percent of the refuge. Today, the state is seeking access to only half of the 1002 area, or just four percent of the 

refuge. However, the state has been consistently denied access to the 1002 area to responsibly develop a 

potential of 10 billion barrels of oil, which could refill TAPS, Alaska's economic lifeline. This area is 

approximately 60 miles east TAPS, which is currently running at three-quarters empty. TAPS low throughput, 

which is a big contributing factor to a current $3.5 billion state budget deficit, is not for a lack of resources, but a 

lack of access to the resource. To sustain their livelihoods and prosper, Alaskans need access to the resources 

that ushered in statehood more than SO years ago resources such as oil, gas, minerals, and timber. 

Federal Rulemaking eroding ANlLCA provisions 

RDC is concerned with the broad range of issues and potential consequences of recent federal rulemaking, 

including rules by the National Park Service, the Forest Service and the Fish and Wildlife Service that will 

essentially undo many of the ANILCA protections for public uses of federal lands, in holdings and adjacent lands, 

and waterways on a much larger scale than is evident by reviewing each rulemaking independently. The NPS 

rulemaking on wildlife changes the closure process for all public uses and grants discretion to superintendents 

to restrict activities without the public process envisioned by Congress in ANILCA. Combined that and other 

actions with the expansive interpretation of the Ninth circuit court on Park Service authority to regulate 

activities under its national regulations on private and state lands within exterior boundaries of the pari<: units, 

virtually no current development activities would be allowed in the future on non-park lands within the park 

boundaries. 

General Recommendations 

RDC appreciates the willingness of the Committee to review ANILCA, and encourages the Committee, through 

legislation, to take whatever steps it can to make clear that ANlLCA must be implemented as intended by 

Congress, not as federal agency personnel wish it were written. Federal land managers must restore balance in 

the implementation of laws and stop changing the interpretation of ANILCA to achieve their own agenda. The 

following steps should be taken to restore balance and Congressional intent: 

National regulations and policies, including Resource Management Plans and Areas of Critical 

Environmental Concern, must recognize and comply with ANILCA's unique provisions and the Alaska 

Protections. The implementation of FLMPA and other agency organic acts should be considered amended 

by ANILCA and should be interpreted consistently with the Congressional intent of ANlLCA. 

Federal authorities must adhere to the 'no more' clause, which prohibits the President from using the 

Antiquities Act to create new monuments in Alaska without congressional approval. There should be no 

additional land withdrawals in Alaska since ANlLCA already struck a balance between preservation and 

the multiple use of lands for commercial and economy-sustalning activities. 

The word 'withdrawal' in Section 1326 of ANlLCA should be defined as specifically recommended by the 

Alaska Miners Association in its january 15, 2016letter to the committee: 

Section 1326 of ANlLCA is amended by adding a new subparagraph (c) to read: Consistent with 

the Congressional intent expressed in Section 101 (d) and notwithstanding 16 U.S.C.1702(j), for 

the purposes of Section 1326 (a) the terms "withdraw," "withdraws" and "withdrawal" shall mean 

any agency action or inaction that has the effect of designating public land in Alaska as: a 

Wilderness Study Area; a Wild and Scenic River; an Endangered Species Act habitat area; or any 
417 

RDC AN!LCA Comments to Senate Energy & Natural Resources Committee Page 7 of8 

land use designation, made pursuant to the Federal Land Policy Management Act or the National 

Forest Management Act or any other planning statute, that has the effect of prohibiting or limiting 

resource uses allowed before the day of passage of this Amendment or impeding access to or 

inhibiting the development of: renewable energy projects [including hydropower), mining 

(including exploration), oil and gas [including exploration), or timber harvest. 

Federal agencies shall expend no funds to apply conservation system unit regulations to management of 

navigable waters, which are under the jurisdiction of the State of Alaska. 

All existing logging roads, public trails, and historic access roads and trails established by public use prior 

the 1960s land freeze should be recognized on federal lands, including those asserted as RS2477s by the 

State of Alaska. 

Access to in holdings must be allowed as guaranteed under the law. 

The federal government must provide continued use of federal lands for recreation, hunting, subsistence 

and traditional use, and the pursuit of responsible resource development to sustain the Alaska economy. 

The Mining in the Parks Act should not apply in Alaska. 

The Alaska Land Use Council as described in ANlLCA Title XII should be re-established and charged with 

the responsibility of ensuring that the promises of ANlLCA are kept. 

ANlLCA education opportunities should be expanded to systematically inform and educate federal land 

managers and others in Alaska and Washington, D.C. about the law, including historical context and 

current relevancy. 

Conclusion 

In review, the success of Alaska's resource industries, including Alaska Native corporations, the bedrock of 

Alaska's economy, is dependent on a series of promises and protections made by Congress that provide access 

to natural resources. These promises started with the Alaska Statehood Act, continued with ANCSA, and 

culminated with ANILCA. These acts collectively allow the state and Native corporations to identify, select, and 

receive lands that provide the resources necessary to build the state's economy and serve the interests of 

Alaskans. 

More than just confirming access, ANILCA ensures that state, Native corporations, and other private owners will 

have adequate and feasible access to their lands across federal units. Moreover, ANlLCA Section 103(c] ensures 

that any state, Native corporation, or other private lands, including selected lands within reserved federal CSUs, 

will not be treated as part of those units and will not be subject to the regulations applicable solely to public 

lands within those units. 

Federal agencies are re~interpreting various Acts and drafting revised management poJicies to justify pursuit of 

federal regulations that undermine ANILCA's special provisions and protections with wide-ranging 

consequences for not only business and economic interests, but the states' abilities to fulfill its fish and wildlife 

conservation responsibilities. 

Thank you for the opportunity to offer RDC's perspective and reflections on ANlLCA and suggestions for 

improvements to the Jaw. 
418 

RDC ANILCA Comments to Senate Energy & Natural Resources Committee 

Sincerely, 

Carl Portman 

Deputy Director 

Cc: U.S. Senator Dan Sullivan 

Congressman Don Young 

Governor Bill Walker 

Page 8 of8 
419 

January 14, 2016 

U.S. Senator Lisa Murkowski, Chair 

Senate Energy & Natural Resources Committee 

709 Senate Hart Bldg 

Washington DC 20510 

Alaska Chapter SCI 

PO Box 770511 

Eagle River, AK 99577 

(907) 980-9018 

RE: Senate Hearing on Implementation of Alaska National Interest Lands 

Conservation Act (ANILCA), and Recommendations 

Chairman Murkowski and members of the Committee: 

The Alaska Chapter of Safari Club International's core mission supports wildlife 

conservation, outdoor education related to our hunting heritage, and preserving the 

freedom to hunt. We offer these comments in support of testimony provided at your 

hearing on December 3, 2015, by Anna Seidman, Director of Litigation, Safari Club 

International and to supplement that testimony with additional information. Our members 

hunt for many purposes, both subsistence and non-subsistence, and all are impacted by the 

implementation of ANILCA as it affects our hunting and the conservation of wildlife 

resources that provide those hunting opportunities. 

The 'deal' in 1980: Passage of the Alaska National Interest Lands Conservation Act 

(ANILCA) in 1980 resolved the issues surrounding land ownership in Alaska. The federal 

land transfers to the State authorized by the Alaska Statehood Act in 1958 and to the Alaska 

Native corporations authorized by the Alaska Native Claims Settlement Act in 1971 could 

finally proceed. In addition to adding 104+ million acres to the existing 40+ million acres in 

conservation system units, ANILCA contained numerous unique provisions to ensure nonfederal landowners could develop and access their lands, confirmed state management of 

fish and wildlife (an important component of the Statehood Act), required public 

involvement and cooperation between state and federal agencies in all decisions affecting 

each other, assured access on federal lands for traditional activities, and established an 

Alaska-based cooperative decision process. ANILCA Title XII established the Alaska Land 

Use Council (ALUC) and provided its members (heads of federal and state agencies and 

Native corporations) authority to review all ANILCA-related management plans, policies, 

regulations, and related conflicts to assure consistency with ANILCA and to cooperatively 

resolve issues in Alaska. 

ANILCA up-ended: Creative federal agency and judicial interpretations are incrementally 

diminishing the unique provisions provided by Congress. The ALUC was not renewed by 

Congress after 1990. The Courts repeatedly give deference to interpretation by federal 

agencies without adequately recognizing the balancing of conservation and uses in the 

unique ANILCA provisions. As a consequence, the agencies are increasing their 

administrative authority through reinterpreting national policy in ways that reduce the 

congressional protections in ANILCA and diminish the consultation role ofthe public and 

SCI's Top Gun Chapter 
420 

state that Congress mandated in decisions. The following are current examples that directly 

affect our hunters: 

National Park Service (NPS) adopted regulations in 1996, despite 

objections by the 50 state fish and wildlife agencies and State of Alaska, 

that grant itself authority to apply NPS regulations to Alaska's navigable 

waterways: 

These regulations contradict clear language of ANILCA Sections 103(c) and 906(o), 

which limit application of federal rules for conservation system units in Alaska to 

federal lands. Alaska park and refuge management plans adopted under ALUC 

review according to ANILCA in the 1980s reflected this understanding. In 1996 NPS 

revised their regulations to include state-owned navigable waters. NPS based this 

expansion of authority on their reinterpretation of a 1976 amendment to the 

National Park Organic Act (which would have been superseded by ANILCA in 1980). 

NPS began enforcing their national regulations on state-owned lakes and rivers, 

impacting fishing, hunting, trapping and enforcement on state waterways. The 

federal District and Appeals Courts in Sturgeon v. Masica upheld NPS authority over 

navigable waterways and further expanded NPS authority to nonfederal lands, 

including state and Native corporation lands. This case is being heard by the US 

Supreme Court on January 20, 2016. If the Court does not uphold the balance 

struck in ANILCA that excluded nonfederal land from conservation system unit 

regulations, then Congress will need to take further action to uphold 'the deal' struck 

in ANILCA. 

NPS adopted final regulations on October 23, 2015, that reduce public 

involvement in hunting closure decisions, eliminated consultation with the 

State (even though required by ANILCA), and close all preserves in Alaska 

to hunting for subsistence purposes under State regulations: Beginning in 

2010, NPS implemented temporary closures on park/preserve lands that prevented 

hunters from harvesting wildlife under certain state regulations, claiming 

inconsistencies with the 2006 NPS management policies and Organic Act. 

Justifications repeatedly misrepresented the basis of the state's regulations despite a 

clear public record. Over the next five years, NPS threatened the Alaska Board of 

Game and Alaska Department of Fish and Game dozens of times to either revise 

certain state regulations or NPS would continue closing preserves to state authorized 

harvests. Such diktats had no biological basis, impacted traditional hunting practices 

by rural and non-rural residents, and made no effort to pursue genuine consultation. 

The impacts of such closures extend to state and nonfederal lands within and 

beyond the park units due to the range of wildlife populations and checkerboard land 

status. Despite objections by the federal Regional Advisory Councils, Subsistence 

Resource Commissions, Native corporations, State of Alaska, and many rural and 

non-rural residents, NPS adopted the final rulemaking. The final rulemaking added 

additional closures and criteria that were not included in the proposed rulemaking; 

e.g., prohibit long-standing traditional caribou hunting from boats on state 

waterways within nonfederal lands in Northwest Alaska, because NPS determined, 

without assessment metrics or criteria, that such access is not 'fair chase'. The 

regulations are bad enough, but one can only imagine the far-ranging impact on 

Alaskans hunting for subsistence and recreational purposes, guiding, local 

SCI's Top Gun Chapter 

2 
421 

communities, and state management for sustainability of wildlife if the Supreme 

Court upholds NPS' authority to extend jurisdiction off park lands. 

Acquisition and retention of state management of sustainable populations of fish and 

wildlife on all lands in Alaska was a founding principle in the pursuit of statehood 

and in final negotiations leading to Congress' passage of ANILCA. Throughout 

ANILCA, Congress requires federal agencies to give considerable deference to 

cooperation and consultation with the State of Alaska in management of fish and 

wildlife on all lands and requires cooperation with adjacent landowners and 

managers, Native corporations, and the state. Department of the Interior's policy on 

relationship with state wildlife agencies ( 43 CFR Part 24) reflects recognition of the 

states as primary fish and wildlife managers. The NPS's 2006 Management Policies 

mandate cooperation with state resource managers. Despite these policies' 

deference to ANILCA in Alaska park units and ANILCA's confirmation of state 

management authority, the NPS final rulemaking provides park superintendents 

broad discretion to supersede state regulations by deciding what type or method of 

hunting is 'appropriate' without defined criteria or consultation and with no basis in 

conservation of wildlife. 

The regulations limit the public's ability to participate in decisions and rulemaking by 

replacing hearings in affected areas that are required by ANILCA with holding 

meetings near the affected park unit (most of which are millions of acres). This 

change nullifies many rural residents' participation in the rulemaking process. The 

process is modified in favor of internet-based comments instead of genuine 

opportunities to consult with affected users; notice of intent to restrict is published 

online and the public can request an opportunity to comment. With the limited 

availability of the internet and numerous other communication difficulties in rural 

Alaska, this is not 'equivalent' public participation as provided under current 

regulations. 

The regulations codify "consultation" with the state as notifying the state 'prior to or 

after' taking action. The superintendents are given unrestricted authority to close or 

limit legal hunting activities based on personal opinion of the state's reasoning for its 

regulation. The superintendent simply publishes a notice online each year of any 

state wildlife laws that are preempted due to his opinion that they are inconsistent 

with broad park policies and values. Such notice is not subject to rulemaking and 

can be extended indefinitely. 

Hunting and trapping are an important part of the social and economic fabric of 

Alaska. Throughout this rulemaking process, NPS refused to acknowledge that the 

state's authority to regulate harvest on preserves includes persons who hunt, fish, or 

trap for subsistence purposes. While ANILCA Title VIII granted an authority for 

federal regulation to assure a reasonable opportunity for subsistence uses by rural 

residents on federal land (in consultation with the state), ANILCA also confirmed 

continuation of state management, including regulation of harvests for subsistence 

and other purposes, on preserves except under specific closure criteria in ANILCA. 

These regulations are effectively a statewide closure to hunting on preserves for 

many residents of Alaska. Such closure is not necessary to provide the federal 

SCI's Top Gun Chapter 

3 
422 

subsistence priority under Title VIII and not necessary to assure conservation of 

wildlife. Furthermore, the regulations trump state management that will impact the 

sustainability of wildlife populations on all lands-wildlife do not recognize political 

boundaries and the checkerboard of land ownership will complicate participation by 

Alaskans for subsistence and other purposes, as well as the state's ability to assure 

sustainability and use of all wildlife populations. 

Fish and Wildlife Service (FWS) implemented numerous temporary 

closures to state-authorized wildlife harvests on Kenai National Wildlife 

Refuge, then on May 21, 2015, proposed regulations that unnecessarily 

restrict camping, hunting, and other public uses and permanently give 

refuge managers authority to trump State management: 

Despite Congress' direction in the 1997 Refuge Improvement Act to manage refuges 

for wildlife-dependent recreation (including hunting as a priority use and ANILCA's 

establishment of recreation as a purpose of Kenai refuge), these regulations 

continue a three-decade progression of refuge management that incrementally 

reduces recreation on the two-million acre refuge. Also, despite ANILCA's 

confirmation of state management of fish and wildlife, these regulations supersede 

state hunting and trapping regulations without a conservation basis and unnecessary 

to assure natural diversity of wildlife or wildlife viewing management objectives in 

the Skilak Wildlife Recreation Area. 

FWS adoption of dissimilar refuge-based wildlife harvest regulations complicates the 

state's management for sustainable populations of wildlife on the Kenai Peninsula, 

thus affecting wildlife and related recreation activities beyond Kenai refuge lands. 

FWS established this precedent to preempt state-authorized harvest regulations over 

three years by enacting its own regulations on refuges, using an expansive 

interpretation of law that negates Congressional direction in ANILCA and the Refuge 

Improvement Act. In 2013-2014 alone, FWS preempted six state-regulated hunting 

or trapping seasons that were authorized by the Alaska Board of Game through its 

extensive public process under the sustained yield directive in the Alaska 

Constitution. Congress has not granted authority to FWS to trump state regulations 

except where necessary for conservation of wildlife populations and their habitat, 

under specific administrative conditions, and as specifically provided in other Acts. 

FWS' continuation of a Kenai Refuge-wide aircraft closure, which were not based on 

criteria in the ANILCA access regulations (43 CFR Part 36), combined with proposing 

new camping prohibitions and firearm closures, results in unnecessary reductions of 

opportunities for recreational uses of the refuge. FWS has repeatedly promised to 

re-evaluate the aircraft closures since their adoption in 1986, but after 30 years, the 

original unsupported restrictions on public recreation remain and will be 

compounded by the FWS' proposal to foreclose certain harvest methods, means, and 

seasons for hunting without a justifiable basis in law. 

FWS proposed regulations on January 8, 2016, that affect all 72 million 

acres of refuges in Alaska by codifying its national Biological Integrity 

Policy, which preempts state management of wildlife, expanding criteria 

to trump state-authorized methods and means, and changing the public 

SCI's Top Gun Chapter 

4 
423 

participation and closure procedures: FWS has made presentations to the 

federal subsistence Regional Advisory Committees and others concerning content of 

the anticipated rulemaking for about a year. The national policy was adopted in 

2001 over the objection of all state fish and wildlife agencies; the policy reflects a 

contorted reading of the Refuge Improvement Act of 1997 to authorize FWS 

intervention in state management of fish and wildlife without specific authority by 

Congress. Discussions between the states and FWS resulted in agreement that 

adoption of the policy was conditional on FWS also adopting Director Directives to 

cooperate with the states and continue state use of long-established active 

management practices. 

Instead, the FWS proposes to codify the 'biological integrity and natural diversity' 

policy in regulations that authorize refuge managers to unilaterally curtail hunting 

and override state wildlife management decisions. The FWS does this by adding 

another criteria to those listed in ANILCA and the current regulations under which a 

Refuge Manager may close an area or restrict activities-that criteria is: 

"conservation of natural and biological diversity, biological integrity, and 

environmental health". This criteria is not in ANILCA and not criteria authorized by 

the Refuge Improvement Act to preempt state wildlife management. It is FWS 

reinterpreting law and policy to grant itself authority to diminish state wildlife 

management without specific authority from Congress. 

These draft regulations will have the following additional results: 

• All refuges will be closed to Alaskans hunting and trapping for subsistence 

purposes under state regulations. 

• Refuges will be closed to all state harvest regulations of predators-including 

season extensions or methods and means that would enhance the conservation 

of sustainable wildlife population and are requested by rural residents for 

traditional purposes. 

• The duration of federal temporary closures of refuges to harvests is changed 

from "not to exceed or be extended beyond 12 months" to "so long as 

necessary" but reviewed every 3 years, if review is requested. 

• Authorizes refuge managers to close refuge land to harvest methods found 

"particularly effective." 

In the Kenai rulemaking (above) and in these statewide proposed regulations, FWS 

incorrectly claims that predator harvest regulations are actually predator control 

efforts, which it believes are incompatible with the 'natural diversity' mandate in 

ANILCA and incompatible with the Refuge Improvement Act. To the contrary, 

ANILCA legislative history entered into the record on December 1, 1980, by Senator 

Stevens just before passage of the Act, confirms that predator control and state 

management are authorized on national wildlife refuges. No federal law or 

regulation disallows the state's management of predators on a sustained yield basis 

that ensures population viability. In fact, the Refuge Improvement Act states that if 

there is any conflict between that law and ANILCA, then ANILCA prevails. Yet the 

FWS states on its website that "predator control is not allowed on refuges in Alaska" 

and proposes no definition or criteria to prohibit "particularly effective methods and 

means" of harvest. 

SCI's Top Gun Chapter 

5 
424 

On December 3, 2015, the Govemor objected to FWS' Contingency Plan for 

Operations (published September 2015) that will close national wildlife 

refuges in Alaska in event of a lapse in appropriations: 

Given that FWS does not anticipate a reduction in public safety or 

enforcement personne~ there is no public safety or administrative basis for 

the proposed restrictions. Nor is there any scientific basis, shortage of 

resources, or concern for wildlife that justifies application of the plan in 

Alaska. 

The Governor further noted that "FWS adopted the plan without consultation with 

the state and failed to follow the rulemaking procedures required for closures or 

restrictions under ANILCA." In fact, ANILCA (e.g., Sections lllO(a) and (b), 811) 

and its implementing regulations (43 CFR Part 36) clearly direct that refuge lands are 

open to the public until closed for specific reasons under specific closure procedures. 

The criteria and process proposed by FWS in this Plan are simply not legal. 

Furthermore, based on the experience gained in the 2013 shutdown, prohibiting 

access on wildlife refuges shuts down many legitimate regulated uses such as 

hunting, fishing, trapping, commercial guiding, transporters, air taxi operators, 

research, state management activities, and access by inholders. These closures will 

significantly, adversely impact the economies and social well-being of local 

communities and many Alaskans. 

On January 13, 2016, NPS published rulemaking to further restrict use of 

nonedible fish and wildlife parts, prohibit such use except by rural 

residents, and further limit methods used to harvest wildlife. 

This rulemaking is just off the press so we have not had an opportunity to review or 

comment. We note, however, that they further restrict uses by Alaskan residents on 

preserve land and prohibit methods of harvest authorized by state regulations that 

are adopted under an extensive public involvement process and are consistent with 

sustainable management of populations. As such, these regulations will likely have 

similar impacts as described for the regulations discussed above. 

Conclusion: 

NPS and FWS rulemaking is incrementally undoing ANILCA's unique provisions, by 

eliminating the required consultation with Alaska fish and wildlife managers, preempting 

state harvest regulations, reducing the required involvement of the public in decisions, 

expanding discretionary authority of federal managers to restrict activities, and eliminating 

public notice and hearing except under specified criteria. In addition, these regulations will 

affect the ability of all state fish and wildlife agencies to manage wildlife for sustainability 

and hunting, as follows: 

The 50 states entered the Union on equal footing, responsible for the conservation and 

sustainability of fish, wildlife, and water. That responsibility can only be diminished by 

specific acts of Congress, such as detailed in the Migratory Bird Treaty Act, Marine Mammal 

Protection Act, and Bald Eagle Protection Act. In contrast, federal agencies are reinterpreting various Acts and drafting revised management policies to justify pursuit of 

SCI's Top Gun Chapter 

6 
425 

federal regulations that thwart the states' abilities to fulfill their fish and wildlife 

conservation responsibilities. As discussed above, regulations under development and 

adoption by NPS and FWS directly interfere in the State of Alaska's ability to fulfill its 

constitutional responsibility to assure the conservation and sustainability of fish and wildlife 

within its boundaries by applying undefined values to prohibit methods and means and 

levels of harvests by the public and state. Once these regulations are adopted in Alaska, 

the environmental community will sue to assure the same interpretation of national policies 

will be applied nationwide. Thus, these federal land management agencies' policy 

interpretations of their authorities in Alaska jeopardize the ability of all SO states to engage 

in fulfillment of their sovereign responsibilities for conservation and sustainability of fish and 

wildlife, including opportunities for hunting and fishing on public lands. Further, wildlife do 

not respect political boundaries, so these actions will nationally impact states' management 

for sustainability on a much broader scale than just the national wildlife refuge lands and 

will impact wildlife-dependent recreation activities by the public. 

Recommendations: 

o We ask the Energy Committee to take whatever steps it can to stop the FWS and NPS 

rulemaking (above) which preempt state management of fish and wildlife that is so 

clearly confirmed by Congress in ANILCA and the Refuge Improvement Act. Such 

regulations are not necessary to assure conservation of fish and wildlife on federal 

lands. They are an attempt to interpret national policy so as to diminish state 

management authority without Congressional authorization. In fact, the Committee 

should take steps to assure that no funds be used to implement, administer, or enforce 

federal management policies and regulations related to state-authorized harvests of fish 

and wildlife on public lands administered by NPS and FWS in Alaska, except as and until 

specifically authorized according to criteria established by Congress, such as Title VIII of 

ANILCA and Marine Mammal Protection Act. 

NPS and FWS should be prevented from closing all park and refuge lands in Alaska, as 

proposed in these regulations, to Alaskan residents who hunt and fish under state 

regulations for subsistence purposes. ANILCA Title VIII (as administered by the federal 

subsistence board) allows closing federal lands to hunting by non-rural residents only 

when necessary for conservation or to facilitate the federal priority for subsistence by 

rural residents. ANILCA Section 815 specifies such closure cannot unnecessarily impact 

non-subsistence uses. 

o We urge action that prohibits NPS and FWS from regulating methods and means, 

seasons, bag limits, and eligibility to participate in harvests on park and refuge lands 

unless necessary to implement federal laws such as the Endangered Species Act, Marine 

Mammal Protection Act, and other Congressional actions that specifically and clearly 

authorize federal regulations that diminish state authority over fish and wildlife within 

state boundaries. In addition, we suggest the Committee implement mechanisms to 

reinforce state management authority can only be diminished by specific acts of 

Congress- not by inventive agency reinterpretations of policies. 

o We ask the committee to block implementation and prevent further agency actions 

(e.g., prohibit expenditure of any funds) that would: enact NPS regulations on "Hunting 

and Trapping on National Preserves in Alaska" (80 FR 64325, October 23, 2015); finalize 

FWS proposed regulations "Refuge-Specific Regulations; Public Use: Kenai National 

Wildlife Refuge" (80 FR 29277) published May 21, 2015; finalize the January 8, 2016, 

FWS regulations on "Non-Subsistence Take of Wildlife and Public Participation and 

SCI's Top Gun Chapter 

7 
426 

Closure Procedures on National Wildlife Regulations in Alaska;" and finalize the January 

13, 2016, NPS regulations. The authorities promulgated in these regulations are a 

significant diminishment of state management authority without speciftc authorization by 

Congress and will result in an inability of the state to assure sustainability of all fish and 

wildlife populations on most lands in Alaska. 

• We recommend reinstatement of the Alaska Land Use Council under ANILCA Title XII to 

provide oversight and a mechanism in Alaska for resolution of issues in the 

implementation of ANILCA. The Council would assure that ANILCA is implemented as 

directed by Congress, not as federal agencies and special interest groups wish ANILCA 

had been written. Congressional oversight is also needed of national regulations and 

federal agency policies, such as the Bureau of Land Management Resource Management 

Plans and Areas of Critical Environmental Concern, which bypass ANILCA's unique 

provisions for access and other public uses. 

Thank you for the opportunity to provide comments on the implementation of ANILCA. 

Sincerely, 

Bethany L. Marcum 

President 

Alaska Chapter Safari Club International 

cc: Governor Walker, State of Alaska 

Attorney General Richards, Department of Law 

Commissioner Cotten, ADF&G 

Nathan Butzlaff, Office of the Governor, Washington, DC 

Michael Johnson, Special Assistant for Alaska, Office of the Secretary of the Interior 

Senator Murkowski 

Senator Sullivan 

Congressman Young 

SCI's Top Gun Chapter 

8 
427 

Testimony of 

J.P. Tangen, Attorney at Law 

Before the Energy and Natural Resources Committee 

Of the United States Senate 

December 3, 20 J 5 

SUPPLEMENT FOR THE RECORD 

The RECOMMENDATIONS set forth in the testimony of J. P. Tangen delivered on December 3, 2015 

arc hereby supplemented as follows: 

RECOMMENDA TTONS 

Congress should prepare legislation that makes it clear: 

I. T11at (in accordance with the recommendation of the Alaska Miners Association), the following 

new language be added to Section 1326 of ANTLCA: 

(c) Consistent with the Congressional intent expressed in Section lO!(d) and 

notwithstanding 16 U.S.C. 1702G), for the purposes of Section 1326(a) the terms 

"withdraw;' "withdraws" and ''withdrawal" shall mean any agency action or inaction that 

has the effect of designating public land in Alaska as: a Wilderness Study Area; a Wild 

and Scenic River: an Endangered Species Act habitat area; or any land usc designation, 

made pursuant to the Federal Land Policy Management Act or the National Forest 

Management Act or any other planning statute, that has the effect of prohibiting or 

limiting resource uses allowed before the day of passage of this Amendment or impeding 

access to or inhibiting the development of: renewable energy projects (including 

hydropower), mining (including exploration), oil and gas (including exploration), or 

timber harvest. 

2. T11at ANILCA should be identified as an action-forcing statute similar to the National 

Environment Protection Act, the Clean Water Act and the Clean Air Act. 

3. T11at FLPMA and other agency organic acts are deemed to have been amended by ANILCA and 

arc to be interpreted consistently with the legislative intent of ANTLCA, facilitating access across and 

resource development on federal lands in Alaska managed by the USPS, the BLM. the NPS and the FWS; 

4. That notwithstanding the Administrative Procedures Act, the federal courts are directed to 

exercise plenary authority over the land managing agencies and to consider applications for review of 

decisions that deny private citizens access through and across Conservation System Units (often called 

''CSUs") created or enlarged by ANILCA, de novo and upon request; 

A new subsection (e) should be added to Section 101 of ANTLCA that provides: 

All land managing agencies of the United States that exercise jurisdiction over federal 

land in Alaska shall certify in every proposal initiated under the authority of the Federal 

Land Management and Policy Act, as an1cndcd; the National Park Service Organic Act of 

1916, as amended: the Fish and Wildlife Service Act of 1956, as amended: the Forest 
428 

SeiVice Organic Administration Act of 1987, as amended; and every other statute, 

proclamation, Executive Order or directive that nothing contained in such proposal or 

initiative is inconsistent with the express language or legislative intent of Section lOl(a) 

through (d) of Public Law 96-487, as amended. 

"The Circuit Court of Appeals for the Ninth Circuit or the District of Columbia Circuit 

shall have original jurisdiction to adjudicate all applications by any citizen claiming to be 

aggrieved by a violation of this section." 

Comment: The purpose of this section is to ensure that the land managing agencies in Alaska 

acknowledge that ANILCA amends their respective organic acts and that the protection of federal lands in 

Alaska is settled for all time. 

Although granting de novo jurisdiction to the federal district courts to consider appeals from individuals 

and other entities claiming to be aggrieved by an initiative emanating from a land managing agency 

without being fettered by jurisdictional barriers such as the Administrative Procedures Act, which has 

been interpreted to mean that the affected agencies are best qualified to interpret their own mandates, the 

Circuit Court is a preferable forum in order to avoid delays in resolving conflicts between agencies and 

aggrieved potential users of Alaska land. 

5. That all waters, rivers. streams and lakes in Alaska arc reputably presumed navigable and subject 

to the exclusive jurisdiction of the State of Alaska, unless the affected land managing agency can prove 

by a preponderance of the evidence in federal district court that a specific reach or impoundment is not 

navigable; 

ANILCA should be amended by adding a new language at the end of Section 906(d)(l) as follows: 

In furtherance of the State's entitlement to submerged lands under section 6(m) 

of the Alaska Statehood Act, the United States hereby conveys to the State of 

Alaska, subject only to valid existing rights and Native selection rights under the 

Alaska Native Claims Settlement Act, all right, title and interest of the United 

States in and to all lands within the boundaries of the State of Alaska which are 

covered by nontidal waters up to the ordinary high water mark as heretofore or 

hereafter modified by accretion, erosion, and reliction; and all lands pcnnanently 

or periodically covered by tidal waters up to but not above the line of mean high 

tide and seaward to a line three geographical miles distant from the coast line of 

each such State and to the boundary line of each such State where in any case 

such boundary as it existed at the time such State became a member of the Union, 

or as heretofore approved by Congress, extends seaward (or into the Gulf of 

Mexico) beyond three geographical miles, and all filled in, made, or reclaimed 

lands as hereinabove defined unless such lands can be shown to have not been 

navigable as of July 7, 1958. 

6. That all existing logging roads and all historic RS 24 77 rights-of-way already identified by statute 

by the State of Alaska across federal public lands in Alaska are hereby deemed granted, including 

alternative routes dictated by weather and topographic conditions, and including a 50-foot-from-thecenterline width and such borrow pits of sufficient proximity and size as may be required by the builder to 

ensure econmnic tnaintenance~ 

2 
429 

7. That pem1its, environmental impact statements and all other studies and documentation required 

by an agency shall be paid for exclusively by the lead agency out of appropriated fi.mds: 

8. That applications and amendments to applications for access or development activities on 

inholdings shall be deemed approved unless denied for cause within one year after having been initially 

filed: 

9. That all Public Land Orders issued under the authority, in whole or in part, of ANCSA or 

ANILCA or related to ANCSA or ANILCA are revoked effective one year after the passage of this 

legislation unless renewed by reference to other authority; 

10. That all wetlands within CSUs and Wilderness Areas in Alaska be deemed sufficient to fi.!lly 

satisfy the Clean Water Act· s mitigation requirements in lieu of replacement or monetary compensation 

for any resource development projects regardless of federal, state, local, or private ownership. 

11. l11at the Alaska Land Use Cmmcil as described in ANILCA Title XII is re-established and 

charged with the responsibility of ensuring that the promises of ANILCA are kept: 

12. That the Quiet Title Act shall not apply to the transfer to the State of public lands in Alaska: and 

13. That the Mining in tllC Parks Act shall not apply to CSUs in Alaska. 

14. Federal Lands in Alaska should not be considered for World Heritage Sites or any binational or 

multi-nationalland management system that restricts the usc of the land by Alaskans, 
430 

Supplemental testimony submitted by The Wilderness Society 

Senate Energy & Natural Resource Committee 

Hearing to receive testimony on 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. 

December 3, 2015 

This statement is supplemental to the testimony The Wilderness Society submitted for the ANILCA 

hearing on behalf of sixteen other conservation organizations. 

At the recent ANILCA oversight hearing Senator Murkowski asked Governor Walker what would happen 

to Alaska ifthe Trans Alaska Pipeline System (TAPS) were no longer in operation. As we detail in the 

attached document (Attachment A), absent some catastrophic problem with TAPS itself, TAPS will 

remain operational for decades into the future. The real economic challenge facing the state at this 

time is its unhealthy reliance on one aspect of our economy (namely, oil revenues) to substantially fund 

state government. The answer to this problem would be to transition to a more diverse and sustainable 

economy sooner rather than later. 

No one asked at the hearing the question about the threat posed by unabated climate change caused 

as we know by the burning of fossil fuels- to the State of Alaska. Unlike the risk of a TAPS catastrophe 

or shut down due to low oil flow far in the future, the impacts of climate change on Alaska are felt 

today, particularly in the Arctic, where the effects of climate change are accelerated. Ironically, Alaska's 

Arctic is also where the majority of Alaska's oil and gas development occurs. 

The National Oceanic Atmospheric Administration just released its lO'h annual Arctic Report Card, the 

2015 Report , which was authored by 72 scientists from 11 nations. The report finds that 

surface air temperature has increased in the Arctic by 5.2 degrees Fahrenheit since the start of the 

twentieth century. According to NOAA scientists, we have already passed critical warming thresholds in 

the Arctic. If and/or when the earth's surface warms by 2-degrees, the Arctic region will have warmed 

by 4 or 5 degrees. Given our current warming trajectory, this could happen by 2040- 2050. 2 

1 http://www.arctic.noaa,gov/reportcard/exec,_,summary.htm!; 

2 The Arctic is now warmer than its been since 1900, Yereth Rosen, Anchorage Daily News, December 15, 2015; 

http://www .adn. com/ article/20151215/ arctic-now-warmer -its-been-1900. 

ALASKA REGION 

705 CHRISTENSEN DR.. ANCHORAGE. AK 99501 

TEL. (907) 272-945) FAX (907)272-1670 

tv\nv.wildcmcss.org 
431 

Alaska's Arctic is at a critical point, and human caused climate change is already threatening Arctic 

communities that have depended upon Arctic resources for their subsistence and cultural livelihoods for 

thousands of years. With significant shifts occurring to these resources brought on by climate change, 

such as the thawing of sea ice, Arctic communities are already facing the lack of food security and safety 

they require to ensure their futures. It is imperative that the State of Alaska take these threats 

seriously, and work to diversify its economy to create a sustainable future for the state and reduce fossil 

fuel emissions. Reducing fossil fuel emissions will benefit the state, the country and the globe, and will 

help achieve the climate goal recently agreed to in Paris by 195 nations, including the United States, to 

curb global warming to no more than 1.5-degrees Celsius. 3 Alaska needs to do its part to reach this 

international goal. 

Discussions of ANILCA, and the future of Alaska's economy, are not complete without addressing this 

central issue. Thus we encourage the Alaska Congressional delegation, should there be further hearings 

on this topic, to address climate change head on- one of the defining issues of our time. 

Please see the attached document clarifying that TAPS is in no danger of imminent operating problems 

or a shutdown due to low throughput, which cites the state court decision that determined that the 

pipeline is likely to operate SO or more years, or until at least 2065. 

3 http://www. nytimes.co m/i nteractive/2015/12/12/ science/ docu men! -fin a l-cop21-d raft. html? _r=O 

ALASKA REGION 

705 CHRISTENSEN DR .. ANCHORAGE. AK 99501 

TEL. (907) 272-9453 FAX (907)272-1670 

''''-"w.·wildcn1css.org 
432 

Attachment A: 

Trans-Alaska Pipeline System Throughput: Facts, Data, and their Implications 

Throughput 

The 800 mile Trans-Alaska Pipeline System (TAPS, operated by Alyeska Pipeline Service 

Company) began operation in 1977. At peak flow in 1988, the pipeline transported 2.1 million 

barrels of oil a day. Throughput in 2014 averaged approximately 513,000 barrels a day. 

Implication: Pipelines are designed to carry less than peak flow, so the fact that TAPS currently 

moves roughly V. of its oil capacity does not have great significance. 

Ownership 

The three largest owners of TAPS- BP, ConocoPhillips, and ExxonMobil- have a combined 99% 

ownership interest in TAPS and are expected to produce 88% of the oil in the pipeline through 

2050. 1 

Implications: Because of the money they have invested in North Slope oil production and in 

keeping it going, BP, ConocoPhillips, and ExxonMobil each have an interest in TAPS operating as 

long as the production is profitable. Alyeska Pipeline and its owners are exploring multiple means 

to keep TAPS operating including adding heat along the pipeline, utilizing insulation, etc. 

Projected Longevity 

A state court decision between the pipeline owners and the state involving property taxes 

determined that the pipeline is likely to operate 50 more years, i.e., until at least 2065 2 This 

decision was affirmed by the state Supreme Court. Similar arguments were made for later tax years, 

however the approach used by the state court was fully affirmed by the state Supreme Court in 

2015 3 

According to a study by economic consultants for the Natural Resources Defense Council, the life 

of TAPS can be extended at least three decades through modest improvements which would yield 

profits of over ten times the upgrade costs. The study's authors show the improvements would 

require $539-$721 million in investment but would result in $12 billion in additional profits and an 

equal amount to Alaska's state coffers in the form of added royalties and tax revenues 4 

Implications: TAPS is in no danger of imminent operating problems or a shutdown due to low 

throughput. Existing and future production on state lands and waters is likely to keep TAPS 

operating for several decades. To say otherwise is merely a means to advocate for new drilling on 

environmentally-sensitive federal lands and waters in the Arctic National Wildlife Refuge, in all 

portions of the (poorly-named) National Petroleum Reserve- Alaska, and in the Arctic Ocean. The 

sky is not falling regarding TAPS throughput. 

Contact: 

Lois Epstein. P.E.. Engineer and Arctic Program Director (lois cp;;!~!;Jllil. 907.272.9~53) 

The Wilderness Society, Anchorage. Alaska, and, Board President for the Pipeline Safety Tmst (www.pstmst.org) 

1 Case No. 3AN-06-8H6 CI [Consolidated], p. ~I. 2 Jud:;;e pegs pipehne life at 50 more :vears, Anchorage Daily News, Jarnmry 5, 2012. 

http://www.adn.com/20 12/0 l/ll-l/2MGO 15/pipclinc-lifc-at-lcast-50-morc.html 3 See l1ttp://\\ W\\ .courtrccords.<-Jlaska. gov/wcbdocs/opinlotls/ops/sp-7039 .pdf 4 Is the Trans Alaska Pipeline s:vstem in Danger r~[ Being Shut Down?. Innovation & Infonnation Consultants. Inc. 

Concord, MA. Orlando, FL. Sept. 2011, 30 pp .. http://docs.nrdc.orglcncrgv/lilcs/cnc ll092001a.pdf. 
433 

Louise Lasley 

Presrd.ent, WY 

Howie Wolke 

Vrce-President, MT 

Jerome Walker 

Sec;et.aly/Treasw·er, MT 

Marty Almquist, MT 

Janine Blaeloch, WA 

Talasi Brooks, ID 

Franl Camenzmd, WY 

Fran Mauer, AK 

\,ivr:onr· 

Stewart M Brandborg 

George Nickas 

Maga!en Bryant 

Dr. Derek Craighead 

Dr. M, Rupert Cutler 

Michael Frome 

Dr. Roderick Nash 

2G3343rdAverlueSouth 

Mmr1eapolrs MN 55406 

(P)6122019266 

PO 8ox9623 

Moscow iD 838-<13 

(P)208310 7003 

Senate Energy and Natural Resources Committee: 

Testimony Prepared by Wilderness Watch for 3 December 2015 

Hearing on the Alaska National Interest Lands Conservation Act of 1980 

This statement is provided by Wilderness Watch. It supplements our comments that 

were submitted previously along with sixteen other conservation organizations. 

Introduction: Thirty-five years ago President Carter signed the Alaska National 

Interest Lands Conservation Act (ANTLCA), which constituted the largest 

legislative set aside of public lands for conservation purposes in our nation's 

history. Strong support for protection of key wild lands in Alaska was expressed 

nationwide through citizen action on a scale unsurpassed by any conservation 

legislation before or since. A majority of the American people wanted the most 

important wild areas in Alaska to be preserved in their original condition. The 

thought was, that in Alaska we still have a chance to avoid the mistakes that have 

occurred across the rest of the nation where protection came too late, and areas set 

aside are woefully too small, In Alaska, we still had an opportunity to do things 

right, and preserve entire ecological areas. 

While ANILCA is widely heralded as a great accomplishment, it is important to 

realize that the bill that was enacted did not constitute the best possible measure for 

conservation. A far more optimal version of the Alaska lands bill was passed twice 

by overwhelming votes in the House of Representatives. For example, the House 

bill would have designated 67 million acres of Wilderness, including the Arctic 

Refuge coastal plain, while ANILCA designated only 56 million acres of 

Wilderness, and excluded the coastal plain. Furthermore, the House version would 

have added about 8l million acres to the National Wildlife Refuge System in 

Alaska, however, ANILCA added only 54 million acres. It was the Senate version, 

however, that was ultimately enacted without the benefit of improvements that 

normally occur through a conference committee process. Thus, from a conservation 

stand point, ANILCA is far less than ideal. Throughout the protracted legislative 

process the bill's sponsors went the extra mile to accommodate numerous demands 

made by the State of Alaska, the Alaska congressional delegation, Alaska native 

corporations and other development interests. 1.1any significant compromises 

harmful to conservation were incorporated in the final legislation. 

To develop an appropriate evaluation of ANILCA after 35 years, it is essential to 

review how the statute has been implemented. The following examples are provided 

to illustrate in only a limited way how the conservation objectives of this landmark 

law have been compromised. 

Pff on_the WrQ!!g_Foot: Starting in 1981, implementation of the most sweeping 

land conservation law in history fell to the newly elected Reagan administration, 
434 

which was openly hostile to protection of public lands. Top officials quickly became involved in 

influencing ANILCA implementation in a manner that did not reflect the intent and spirit of the 

Act. This posture continued for the next 12 years and set the stage for many of the problems that 

today plague ANTLCA conservation system units and other public lands in Alaska. For example, 

by March of 1981, Secretary James Watt directed that the U.S. Geological Survey, rather than 

the Fish and Wildlife Service, lead a resource assessment of the coastal plain of the Arctic 

National Wildlife Refuge that was required in Section 1002 of ANILCA. The motive for this 

decision was to increase emphasis of oil and gas potential at the expense of wildlife 

considerations. This directive was overturned by a U.S. District Court that found that Secretary 

Watt had violated the National Wildlife Refuge Administration Act which requires that 

management activities on refuges can only be conducted by the Fish and Wildlife Service. 1 The 

development of regulations for implementing other provisions of ANILCA also came under the 

political influence of the new administration, and resulted in less than optimal rules for 

administering and protecting the new conservation areas in Alaska. 

Abuse of Land Exchange Authority: Several major land exchange schemes were pursued during 

the 1980's by the Reagan administration's Interior Department and various Alaska native 

corporations. These schemes posed major threats to the integrity of conservation system units. 

For example, in 1983, Deputy Under Secretary of Interior, William P. Hom entered into a land 

exchange agreement which transferred lands on St. Matthew Island to three regional native 

corporations who intended to lease these lands to oil companies for exploration and 

developments in the Bering Sea. St. Matthew Island is in the Alaska Maritime National Wildlife 

Refuge and is also designated as Wilderness. The St. Matthew Island land trade was construed 

to be consistent with Section 1302 of ANILCA which allows for land acquisitions to further 

conservation objectives. In 1984 a U.S. District Court invalidated this exchange finding that "the 

Secretary's Public Interest Determination ... sz.!f!ersfi·om serious errors o_fjudgement and 

misapplication of lmv .. "

2 

Other land swap schemes involved exchange of native corporation lands in an attempt to 

pressure Congress to open the coastal plain of the Arctic National Wildlife Refuge for oil 

development. One of these actions resulted in transferring the subsurface estate of Kaktovik 

village lands to the Arctic Slope regional corporation for surface lands within the Gates of the 

Arctic National Park. This exchange enabled drilling an exploration well within the Refuge 

boundary during 1985-86, and remains a serious threat to the integrity of the Arctic Refuge. A 

1989 GAO Report identified numerous flaws and inappropriate procedures used to carry out this 

agreement3 A second land exchange was planned during the mid-1980's to trade other lands in 

the Arctic Refuge coastal plain to some 18 various native corporations for the purpose of 

spurring oil development in the Refuge. This effort was also heavily laden with inappropriate 

process and procedures4 It was stopped by Congressional action prohibiting land exchanges 

within the Arctic Refuge. A similar land exchange scheme was again developed during 2004-08, 

with the motive to enable oil development in the Yukon Flats National Wildlife Refuge. lt was 

dropped when village tribes of the Yukon Flats exerted strong opposition out of concern for 

severe consequences to the Refuge's environmental integrity and to their subsistence culture. 

1 Trustees fOr Alaska v. IVatt, 524 F. Supp. 1303 (D. Alaska, 1981). 2 _Vatwnal Auduboon Socwty v. Clark. 606 F. Supp. R25 (D. AhL~ka 1984). 3 GA01RCED-90-6 Chandalar Lake Land Exchange Not in the Governm.o:nt·s Best Interest (1989). 4 GAOiRCED- 88-179 Con?>idcration of Proposed Alaska Land Exchanges Should be Discontinued (1988). 

2 2 
435 

Wilderness Reviews Shortchanged Wilderness: Section 1317 of ANILCA required the Secretary 

oflnterior to review all lands within units of the national park and national wildlife refuge 

systems in Alaska for their suitability for preservation as wilderness in accordance with section 

3(d) of the Wilderness Act, and to make recommendations according to section 3(c) of the 

Wilderness Act. In 1985, the Director of the U.S. Fish and Wildlife Service issued an order 

requiring that overly restrictive criteria be used in the review process. This order severely 

limited the amount of lands that were recommended for wilderness designation. 5 The review of 

refuge lands identified about 52.6 million acres as suitable for wilderness, however, only 3.4 

million acres were recommended for designation. Large areas of non-designated lands in the 

national parks were also found to be suitable for Wilderness, however, relatively small amounts 

of suitable lands have been recommended for designation. More than I 00 million acres of refuge 

and park lands in Alaska have been determined to qualify for Wilderness, very little of which 

have been recommended for designation. We are pleased to note that in 2015, President Obama 

recommended Congress pass legislation designating 12.28 million acres of the Arctic National 

Wildlife Refuge as Wilderness. We urge Congress to swiftly enact the President's 

recommendation. 

Use of All Terrain Vehicles (ATVs): Following passage of ANILCA, the National Park Service 

failed to prohibit the use of A TV's in several park units in Alaska. The most egregious example 

is at the Wrangell-St Elias National Park and Preserve. While ANILCA granted access to lands 

in all conservation system units using snowmobiles, motorboats and airplanes, there is no 

specific language in ANILCA requiring the NPS to permit the public use of ATVs on park lands. 

In addition, NPS general regulations regarding use of off road vehicles specify that special 

regulations be developed before these uses may be authorized in parks. Rather than develop the 

required regulations, the NPS regional office unilaterally decided to address access management 

at Wrangell-St Elias NP by inserting guidelines in the General Management Plan to authorize the 

use of ATVs for subsistence purposes by permits that restrict use to designated trails. No 

designated trails had been identified twenty years after passage of AN ILCA, however "ATVs 

for subsistence purposes [have been) allowed throughout the park without regard to permits, 

routes, trails, sensitive wildlife habitat or wilderness designation."6 In addition, A TV's are also 

allowed for recreational use within Wrangell-St Elias National Park and Preserve. This obvious 

failure to properly implement ANlLCA and follow other National Park Service policies 

regarding A TV's has resulted in significant impacts to soils, vegetation, waters, wildlife habitat, 

and wilderness resources (please see photos on pages 15, 28 & 29 of the attached file for graphic 

illustrations of impacts in Wrangell-St Elias National Park and Preserve). ATV impacts resulting 

from inappropriate implementation of ANILCA and other regulations and policies at other 

national parks, wildlife refuges, and Bureau of Land Management administered areas in Alaska 

have also been documented (see Bane 2001). 

Other Stewardship Failures: While Section Ill O(a) of ANILCA provides for access to 

conservation system lands in Alaska by snowmobiles, motorboats and airplanes, for traditional 

activities, the statue also provides that "Such use shall he suhject to reasonable regulations hy 

the Secretmy to protect resources and other values .... " The failure of federal agencies to 

implement such regulations, when coupled with technological improvements in snowmobiles 

5 GAO/RCED-89-155 Restrictive Criteria lJsed to Recommend .Additional Wilctemess (1989). 6 Bane, G.R 2001, Shredded Wildlands AU-Terrain \'chicle Management in Alaska. 

3 3 
436 

and other motorized vehicles have combined to cause significant degradation of wilderness 

values in many conservation units. In the absence of regulations, the landing of airplanes on 

sensitive tundra surfaces within conservation units, such as the Arctic National Wildlife Refuge 

Wilderness, has resulted in a growing proliferation of visual scars, loss of vegetation, and in 

some cases erosion of soils. Similarly, technological changes to snowmobiles have made 

previously unreachable areas susceptible to substantial amounts of snowmobile use. As a result 

the wilderness character of some of Alaska's most remote wildlands has been and continues to 

be degraded. 

There is also a growing trend in the use of helicopters by federal agency personnel, further 

contributing to degradation of wilderness character in nearly every conservation system unit. 

The use of helicopters in Wilderness areas in Alaska should be limited to only that which is 

necessary to administer and protect the Wildernesses according to the Wilderness Act. 

There is a growing number of permanent structures and installations being placed in the Alaska 

Wilderness areas that have little or nothing to do with protecting the Wildernesses. The 

Wilderness Act prohibits installations with the exception that only if it is required to administer 

the area as Wilderness. Most of these installations fail to meet this strict standard and should be 

removed. Moreover, helicopters are often used in the placement, operation and maintenance of 

many of these structures, further eroding the areas' wilderness character. 

Clearly, the federal agencies have neglected their responsibility to preserve wilderness character 

in ANILCA conservation units, including failing to exercise the authority to control motor 

vehicle access under Section 1110 (a) of ANILCA. 

Conclusion: ANILCA is heralded as one of our nation's greatest accomplishments for 

preservation of public lands, and deservedly so. Its promise remains unfulfilled, however, due to 

the large amount of wildlands that didn't receive protection under ANILCA, and the sub-par 

management of the conservation units that has compromised the wilderness character of 

ANILCA's designated Wildernesses. ANILCA was compromised too much to accommodate 

State of Alaska interests, and its implementation has been seriously hampered by inappropriate 

and inadequate policies. This situation has prevented achievement of the conservation goals of 

A NILCA and other pertinent statutes such as the Wilderness Act. It certainly has not met the 

expectations of the many American citizens who worked so hard to pass the Alaska National 

Interest Conservation Act of 1980, or of those who rely on it to preserve America's last great 

Wilderness. 

ATTACHMENT: "Shredded Wildlands: All Terrain Vehicle Management in Alaska. 2001" 

4 4 
437 

Sl!REDDED WILDLANDS 

ALL TERRAIN VEHICLE MANAGEMENT IN ALASKA 

G. Ray Bane 

Jointly Sponsored By 

The Alaska Sierra Club Alaska Task Force, Sierra Club Alaska 

Chapter and The Alaska Conservation Foundation 
438 

2 

Author Bio: G. Ray Bane came to Alaska in 1960. He and his wife Barbara 

served as teachers in Sitka and the northern rural communities of Barrow, 

Wainwright, Huslia and Hughes. Ray studied cultural anthropology at the 

University of Wisconsin, Madison. In 1966, he carried out research into the 

subsistence lifestyle of the Eskimos of Wainwright, Alaska. Ray traveled 

extensively throughout Alaska via light aircraft, dog team, boat and foot. In 

the winter of 197 4, Ray and Barbara carried out a dog team trip expedition 

across northern Alaska while studying the winter travel techniques of Native 

Alaskans. He coauthored two pioneer studies into Alaska subsistence 

lifestyles, Kuvungmuit and Tracks in the Wildland. Ray joined the National 

Park Service and worked in such parks as Gates of the Arctic, Northwest 

Alaska Areas, Katmai and Aniakchak. He served as superintendent of 

Katmai and Aniakchak from 1987 through 1990. His travels took him to 

every national park in Alaska as well as many other conservation units. He 

worked in the Alaska Regional Office of the NPS specializing in cultural 

and subsistence issues. He completed two special assignments to 

Washington, D.C. to work in legislative affairs and as a special assistant in 

the office of the Assistant Secretary ofinterior for Fish, Wildlife and Parks. 

Ray retired from the National Park Service in 1998. 

Shredded Wildlands 

2 
439 

Prologue 

In his book, Alaska, Promises to Keep, Robert Weeden wrote, "Alaska's special 

vulnerability to damage by all-terrain vehicles is well known .... The implications 

of high vulnerability and slow recovery of vegetation are especially important in 

wild areas. Wilderness is a valuable land characteristic, and it is becoming more 

valuable yearly. The cost of destroying or damaging wilderness, however hard it 

may be to calculate, is increasing. It is highest where the degree of change is 

greatest and where recovery times are longest. Public-land-use policies have not 

yet reflected the values of wildness fully even in designated wilderness areas, and 

scarcely at all in undesignated areas that are wild simply because they have been 

left alone." (Weeden, 1978). 

Written more than two decades ago, Bob Weeden's prophetic words ring truer 

today than when first put to paper. The wild character of the 49111 state is 

undergoing dramatic and far- ATV rm"in<> M"r,hl"nn of increasingly versatile 

and powerful machines to pene ra e once remo e an pristine regions is creating a 
440 

4 

wake of environmental consequences that have the potential to forever alter those 

natural attributes which Alaskans and the nation hold dear. 

During the summer of 2000, the Sierra Club Alaska and the Alaska Conservation 

Foundation commissioned a review of ATV issues affecting public lands in 

Alaska. The purpose was not to initiate new research into environmental impacts, 

for there is a wealth of such information readily available. Rather, the primary 

goal of this work is to present a general pich1re of how responsible land managing 

agencies are coping with the challenges of ATV access. The vastness of Alaska, 

scope of A TV use and logistical support limitations made it necessary to select 

examples of ATV uses and management as representative of the broader picrure. It 

is hoped that this overview will encourage greater cooperative effort by federal and 

state agencies, the conservation community, Native organizations, ATV user 

community and other interested stakeholders to develop a truly comprehensive 

review of statewide ATV uses and issues and to seek solutions to serious problems. 

In the course of carrying out the research, the writer encountered a range of 

responses from representatives of various land managing agencies. Some openly 

shared concerns and displayed a willingness to candidly discuss issues. Others 

were more guarded and less inclined to volunteer information. In general, state 

agencies, such as the Alaska Dept. ofFish and Game, Department of Natural 

Resources and Alaska State Parks, were among the most cooperative and 

forthcoming. It was observed that when working with some agencies, the further 

down the chain of command one went the greater was the willingness to discuss 

ATV concerns and issues. 

The writer is indebted to many who encouraged and materially assisted in 

producing this report. These include Jack Hession, who was instrumental in 

turning an idea into a project; Deboral1 Williams, who lent her considerable 

support and influence to back the project; Ogden Williams, a wildemess friend 

who enthusiastically gathered important data on ATV technology; Page Spencer, 

who volunteered her airplane to fly the writer over ATV impacted wild lands, Lou 

Waller, who has inspired through his unwavering faith in the principles of 

ANILCA and to my wife, Barbara, who's love of Alaska's wildlands is only 

matched by her boundless support and encouragement to continue the fight for 

their preservation. There are many others without whom this work would not have 

been possible. These include individuals within land managing agencies who 

voluntarily came forward to share information and insights regarding ATV uses. 

Some requested that their contribution remain anonymous. To all, thank you. 

4 
441 

Note: There are several tenns to describe motorized off-road vehicles. These 

include OHV (off-highway vehicle), ATC (all-terrain cycle), ORV (off-road 

vehicle) and ATV (all-terrain vehicle). For the purposes of this study, all these 

terms are interchangeable, with a preference for ATV. While snowmobiles are 

legitimately all-terrain vehicles, this study focuses primarily on machines that are 

useable in all seasons, particularly snow-free months. The issue of snowmobile 

use on public lands in Alaska deserves a separate study. 

Introduction 

All-Terrain Vehicle (ATV) access results in greater negative physical impact to 

Alaska wildlands than any other human use. ATV travel off established roads has 

expanded exponentially over the past two decades invading once pristine regions. 

Fragile ecosystems and critical wildlife habitat are being extensively altered. 

Wildemess areas, both designated and de facto, are increasingly degraded. This 

paper will examine the response of land managing agencies to these challenges. 

Historical All-Terrain Vehicle Travel in Alaska 

1940-1960: Following World War II, military surplus tracked vehicles and heavy 

duty 4-wheel drive 

tmcks were 

purchased and put 

into use by hunting 

guides, prospectors, 

and a relatively small 

number of private 

residents for off-road 

travel. Dog teams 

continued to be the 

primary mode of 

winter surface travel 

throughout the 

northem sections of 

the state. 

Backcountry surface travel during snow-free months was dominated by foot travel, 

pack dogs and boats. The outboard motor gained wide acceptance during the early to 

mid 1950s, although in many rural areas dogs continued to pull boats up inland 

waterways and along ocean shorelines well into first half of the decade. The use of 

paddles and makeshift sails for travel through shallow and ice-clogged waters 
442 

6 

supplemented outboard motor travel. The hunters of Anaktuvuk Pass and Arctic 

Village were renowned for extended summer treks by foot throughout much of the 

Brooks Range well into the 1960s. It was not until the early 1950s that Kuvungmuit 

hunters of the Kobuk River Valley ceased to spend entire summers traveling by foot, 

pack dog and raft throughout the drainages of the upper Noatak and Kobuk Rivers. 

(Anderson eta!, 1977). 

1960- 1980: Snowmachines: The modem snowmachine revolutionized winter 

cross-country travel throughout rural Alaska. Although primitive versions of 

snowmachines were manufactured several years earlier, the first tmly modem 

snowmobiles appeared on the scene in the early 1960s. These machines were fast, 

light, highly maneuverable, and simple to operate. This technology first swept 

through relatively affluent communities and later made inroads into more remote 

settlements. By 1968, the community of Huslia on the Koyukuk River had converted 

entirely from dog teams to snowmachines. Three hundred miles to the east, the 

village of Chalkyitsik on the Black River had only three or four such machines. 

(Nelson, 1973). In 1965, there were only three snowmachines in Slmn6'1lak, an 

lnupiat village on the Kobuk River. (Foote 1966). By 1975, the number increased 

ninefold to twenty-six. (Anderson et a!, 1977). 

ATVs: The all-terrain vehicle became a significant mode of overland travel in 

Alaska in the late 1970s. Various types of motor driven vehicles used for off-road 

purposes were in use prior to this time. However, their availability, cost, limited 

maneuverability, size, and maintenance requirements prevented widespread use by 

the general public. "Little more than a decade ago, motorized off-road travel during 

snow-free season depended primarily on aircraft and boats. A few hunters used 

tracked vehicles and 4-wheel-drive trucks. Today, ORVs are common in the 

backcountry." (Sinnott, 1990). The land-locked village of Anaktuvuk Pass in the 

central Brooks Range was one of the first truly remote rural Alaska communities to 

become heavily dependent on ATV s. In 1970, there were two tracked ATV s in the 

village. By 1977, there were nine ATVs, and in 1987, there were 22 all-terrain 

vehicles (Sinnott 1990, Kuntz and Troxel 1988, Hall et a! 1985). The widespread 

adoption of ATVs coincided with the economic boom and increased cash flow into 

rural Alaska during the construction of the Trans Alaska Pipeline. 

In 1970, Honda Corporation introduced the Honda 90, a lightweight three-wheel allterrain cycle (ATC) riding on low-pressure tires. Relatively inexpensive, simple to 

maintain and easy to operate, the so-called three-wheeler quickly gained popularity 

throughout rural Alaska. It was particularly convenient for travel within communities 

and on local unimproved roads and relatively smooth beaches. More powerful 

6 
443 

versions of this machine appeared in the mid 1970s. However, the design had 

inherent shortcomings. It was notoriously unstable, had limited traction, and the 

tricycle configuration made crossing tussocks and other rough ground extremely 

uncomfortable. The manufacture of 3-wheelers ceased in the 1980s due, in part, to 

safety and liability concems. 

1980- 2000: lt was the advent of the 4-wheel drive all-terrain cycle in 1981 that 

truly revolutionized ATV travel in Alaska. Commonly referred to as the fourwheeler or four track, the early versions were somewhat underpowered and lacked 

the versatility of later models. However, it quickly became the most popularly used 

ATV in Alaska and the nation. 

The four-wheeler consists of a compact engine, four-wheel drive transmission, deep 

lug tread tires and sturdy frame. It has a relatively short tuming radius enhanced by a 

reverse gear. It is able to ascend steep slopes, clamber over large rocks and deadfalls, 

and chum through soft sand and mud and traverse through waist deep water. The 

four-wheeler gained rapid acceptance by both mral and urban residents as a means to 

access and exploit roadless wildlands throughout Alaska. 

A TV technology has proven to be highly dynamic with significant improvements 

taking place each year. 

A report by the ADF&G 

to the Board of Game in 

1990 noted, "(S)mall 

all-terrain vehicles with 

4-wheel drive are fast 

becoming the most 

popular OR V in Alaska 

due to their affordability 

(compared to 4-wheel 

drive trucks and large 

tracked vehicles), 

mobility, and the ease of 

operation. Increasing 

power is also a factor. 

If current trends 

continue, ORVs may eventually outnumber snowmachines in Alaska." (Sinnott, 

1990) (emphasis added). A 1991 National Park Service survey concurred. "Modem 

ATVs are technologically far superior to machines manufactured five or ten years 

ago .... All modem ATVs have significantly improved reliability and low 
444 

maintenance .... The A TV market is highly competitive resulting in pressures for ongoing technological improvements and affordability." (Bane, 1991). The ADF&G in 

1996 observed, "Improvements in the design, reliability, and affordability ofORVs 

between 1990 and 1995 led to greatly expanded uses of ORV s for travel and 

recreational activities in Alaska." (Alaska Department ofFish and Game 1996). Ongoing advancements in ATV technology, increasing numbers of users, and expanding 

incursions into ever more remote mrallands continue unabated. 

Current (2000) ATV Technology. 

All-terrain vehicles range from large dual tracked vehicles to small two-wheel dirt 

bikes. This includes specialized vehicles such as dune buggies, swamp buggies and 

machines designed for competitive racing. This report will focus on the more 

commonly used machines for off-road travel in Alaska. 

The most popular ATV now in use in Alaska is the "4-trac" or "quad." These 

compact vehicles will accommodate a driver and a passenger straddling a 

motorcycle-type seat. The more robust models weigh roughly 600 pounds. With 

driver, full fuel tanks, and maximum recommended rack loads, the total gross weight 

can exceed 1000 pounds. Engines range up to 600 cc delivering roughly 30.5-ft. lbs. 

of torque. This provides ample power to tow other vehicles of 1000 lbs., ascend 

steep inclines and force their way through relatively heavy vegetation. Deep lug tire 

treads are designed to aggressively grip the surface and claw their way up steep 

slopes and over rocks, logs and other nahrral obstacles. An optional power winch 

enhances the ability ofthe machine to overcome obstmctions. Engine, transmission 

and other internal mechanisms are sealed in waterproof housings. A snorkel-type air 

intake allows these vehicles to ride through mud and water up to three feet deep. On 

smooth surfaces, 4-tracs can attain speeds exceeding 50 mph. The basic purchase 

price ranges from $6000 to $9000. 
445 

Argo and 

Max type 

ATVs are 

amphibious 

six-to-eight 

wheeldrive 

vehicles. 

The driver 

and three to 

five 

passengers 

sit side by 

side in a 

shallow 

basin type 

body. The 

machine 

rides on wheels mounted to fixed axles. Steering involves "skidding" in which 

brakes are applied to one side of the vehicle while the opposite bank of wheels 

continues to tum. Compact 4-cycle engines ranging up to 25-hp propel these 

machines. The engine is mounted inside the amphibious housing, and other internal 

machinery is waterproofed. These machines weigh between 750 and 1000 lbs. 

Larger versions have a load capacity rating of 1000 lbs. for a total gross weight of 

approximately 2000 lbs. On smooth terrain, the vehicles are capable of speeds up to 

25 mph. Optional tracks can be added over the tires giving the vehicle exceptional 

traction. One dealer referred 

to the Max IV as a "tankette." The price of these 

vehicles ranges from $7000 

to $11,000, excluding 

shipping expenses. 

Other A TV vehicle types in 

use in Alaska include heavyduty 4X4 tmcks and utility 

vehicles, amphibious tracked 

vehicles, ground-effect (air 

cushion) vehicles, 
446 

10 

homemade "monster trucks" and airboats. 4X4 trucks and utility vehicles are 

generally most commonly found in areas accessible by road. Tracked vehicles tend 

to be relatively expensive to purchase and difficult to maintain. Airboats are 

increasingly popular in areas with shallow streams and expanses of marshy wetlands. 

The so-called monster trucks are often heavy duty military surplus vehicles with 

specially modified suspension systems and oversized tires designed to bull their way 

through heavy bmsh, ford deep streams and ascend steep inclines. 

Contemporary A TV Use Patterns. 

The utilization of ATV s reflects their increasing versatility and the growing user 

sophistication. ATVs are transported by highway vehicles, boats and light aircraft to 

remote locations throughout Alaska. Each summer and fall, pick up trucks, R V s and 

auto trailers carrying or towing ATVs are common sights on state highways and 

secondary roads. The writer observed hundreds of highway vehicles ranging from 

passenger cars to full-sized flatbed semi tmcks transporting ATVs into rural areas of 

the state. It is common for ATV users to tow, fly or ferry their machines several 

hundred miles in order to access 

desired use areas. Shallow-draft 

riverboats, including airboats, are 

employed to move ATVs over interior 

waterways. Larger, deeper draft boats 

otT-load small ATVs along ocean 

beaches. This method has been used 

to gain access to coastal lands of 

Katmai National Park, Aniakchak 

National Monument, Lake Clark 

National Park, Glacier Bay National 

Preserve and other conservation lands 

with ocean frontage. Compact 4-

wheelers are partially dismantled and 

carried in light, single engine aircraft 

to distant lakes, rivers, tidelands, and 

unimproved landing strips throughout 

the state. 

A recent innovation in ATV use 

involves combining large and small 

machines to increase logistical 

efficiency. This convoy strategy 

10 
447 

11 

includes using a large tracked vehicle or heavy 4-wheel drive truck to transport fuel, 

camp equipment, and other bulky supplies deep into a remote area. Smaller ATVs 

accompany the larger vehicle. A base camp is established, and the lighter, more 

maneuverable machines then range out into the surrounding cmmtryside. If 

necessary, the larger vehicle can ferry disabled machines to where they can be 

repaired while also maintaining a supply line for on-going operations. (Alaska 

Deparhnent of Fish and Game, I 996). 

ATV Hunting Convoy- Talkeetna Mts. 

Hunting. Prior to the widespread adoption of personal ATVs, most hunting during 

snow-free months was carried out by auto, foot, boat and light aircraft. Hunters 

rarely stray more than two miles from their vehicle, regardless of type (Sinnott 1990). 

Thus, hunting pressures were concentrated along relatively narrow corridors of lands 

fringing the sides of roads, rivers, lakes and coastlines. This left large sections of 

more remote lands with relatively light or negligible hunting pressures. Those 

willing to undergo the rigors of extended hikes and the chore of packing out game 

could often find excellent hunting opporttmities. 

The widespread adoption of ATVs dramatically altered hunting patterns. ATV 

mounted hunters now cover great distances to reach and exploit remote game areas 

with relative ease. Entire hunts may be accomplished with the hunter needing to 

11 
448 

12 

dismount only after an animal had been taken. The ease with which hunters may 

travel and pack out harvested game increases pressure on areas once avoided due to 

distance and terrain features. Where a person afoot may cover two to five miles a 

day while hunting, a hunter using an ATV may travel fifteen miles or more seeking 

game. 

As more hunters acquire ATV s, competition for finite wildlife resources increases. 

Hunters are encouraged to range ever further afield in search of pockets of 

undisturbed game. "ORV use frequently follows a pattern. First, a new road or trail 

is pioneered into an area previously inaccessible to hunters using other types of 

ground transportation. This initial expansion usually disperses hunting pressure. In 

subsequent years, however, as more OR V users become aware of the new trail, ORV 

use of the road or trail increases, often dramatically. Meanwhile, the trail is extended 

and branched and the process continues." (Sinnott 1990). ATVs are now common in 

areas where they were totally absent just a few years ago. The effect is to 

continuously shrink areas of wildlife refugia. 

While ATV s have substantially increased the mobility and efficiency of many 

hunters, they have conversely reduced opportunities and experiences for those 

preferring non-mechanical means of hunting or who cannot afford such machines. A 

hunter on foot is at distinct disadvantage when attempting to compete with ATV 

users for limited game resources. The noise and visual intmsion of motorized 

vehicles makes wildlife increasingly wary or forces it to move to less accessible 

areas. A hunter traveling on foot may attempt to stalk or to attract game that is 

beyond effective firearm range only to have an ATV hunter preempt his efforts. 

Non-Hunting ATV Recreation. While hunting and sport fishing are major uses for 

ATVs, recreational riding probably exceeds both. It is difficult to quantify 

recreational A TV use, because few records are kept on this activity. However, there 

is ample qualitative evidence of recreational ATV use throughout the state. Driving 

ATV s into undeveloped areas is a popular means of family and group recreation and 

socialization. Recreational ATV use is particularly common near communities and 

along the state road system. 

Group recreational ATV activities tend to encourage competitive and aggressive 

driving. This is particularly tme with younger participants. Drivers are tempted to 

test themselves and their machines against natural obstacles and one another. 

Fording streams, climbing steep inclines, forcing ones way through heavy 

underbmsh, crossing stretches of swampy ground, and pioneering new trails becomes 

part of the ATV experience. This type of use is especially damaging to the 

12 
449 

13 

environment. Aggressive ATV uses also expose riders and others to potential 

hazards. Recreational ATV use has become a major source of accidental injury and 

fatalities in the state of Alaska. (Dr. S. Tower, personal communication). 

Recreational ATV use tends to displace non-mechanized recreational activities. ATV 

users often travel the same trails as hikers, bicyclists, nature photot,>raphers and those 

seeking natural solitude. Non-mechanized users generally value the relative peace 

and unaltered ambiance of natural areas. This includes observing undisturbed 

wildlife and temporarily escaping the mechanical intrusions of modern civilization. 

The presence of A TV traffic can substantially reduce the opportunities for traditional 

recreational users to enjoy natural areas. ATV use often damages foot and bike trails, 

making them unattractive or impassible for other users. The potential for injury 

resulting from contact with ATV users further discourages pedestrians and bicyclists. 

Environmental Issue!! 

Conccm over the environmental impacts of nll-tenain vehicles has spmvned a multitude of studies spanning sc'ireral 

decades and encompassing environments ranging from the subtropical marshes of florida to the pennafrost regions of 

the high arctic. Results of ATV access have been exhaustively measured in arid deserts, rainforests, open grasslands. 

sand dunes, ocean beaches, 'i~'etiands and virtually CVCI}' other natural ecosystem where these machines are driven. 

ATV influence on a hroad range of animal life bas hcen carefully documented. The ovcnvhclming: conclusion of 

vitiually all studies is that ATV access results in significant negative impacts to natural ecosystems_ The degree of the 

impact is influenced by such variables as soil composition, topography, vegetation, moisture, \Veather, seasons, machine 

type, frequency of usc, etc. '' [n states with many OR Vs, their use has damaged soils and vegetation; stressed, displa~_;ed, 

and killed vvi1dlife; and conilicted with other outdoor users. Increasing public complaints and observations of resource 

managers indicate that Alaska is no exception." (Sinnott 1990) 

Natural Setting. Contrary to popular perception, Alaska is not a cornucopia of 

boundless renewable natural resources and endless resilient wilderness. Both the 

coastal plain/alpine tundra regions and the boreal forests of the interior of the state 

have extremely low productivity when compared to the more hearty temperate and 

semi-tropical regions to the south. (Pruitt 1960, Weeden 1978, Lopez 1986). An 

arctic meadow has roughly 3% the productivity of good temperate lowland meadow. 

(Kauffmann 1992). The illusion of bounty and resilience is fostered, in part, by the 

relative sparseness of human population, brief seasonal congregations of wildlife, and 

sense that any human impact is insignificant in comparison to the scale of affected 

wild areas. The impression of size probably contributes most to the cavalier attitude 

evident in the way many interact with the land. 

The productive soils of northern regions are exceptionally thin and fragile in comparison to those in more temperate 

regions. Soils unJ.erlain hyr permafrost arc slow to \Varm_ The shallmv angle of the sun's rays limits the sun's ability to 

nourish plant growth. What may appear as lush grasslands or expanses of productive forest arc often the culmination of 

centuries of uninterrupted growth. Once damaged, recovery· to an original state may require the span of several human 

lifetimes. Disturbance to icc and moisture rich soils frequently results in extensive erosion, further retarding recovef}' 

13 
450 

14 

(Weeden, 1978)_ Even when revegetation takes place. the plant communities arc usually different from those of the 

creating a visual intmsion. (Alstrand et al, 1974) "Once one is accustomed to looking at the world 

it is easier to see hmY all living things arc inextricably tied together_ We can the 

northern cco~>·ystems are less proJuc1iYe than those of the tropical or temperate zones. Less energy input, 

output: less plant input, less animal output '' (Pmitt l9GO) 

of reproduction and growth. Short summers pro\"idc a brief\\·indo\\" 

hoJy reserves and he gin the next cycle of life Any significant 

the difficulty of 

lhey are accustomed and the new stresses oi n; ;;,_1,,: : 

They arc therefore probably more -vulncn1bk l: • ;;r; .. ;:r;;;:::::· 

intmsions than the populations of nny anim:;:i·:: h;;:o,:;: 

\\-ith." (Lopez 1986). ·'The taiga in fact : .... ,.,.," ·· ·· 

meat production per acre Not only 

plants and animals to 

1960). 

olwious 

of \Yhcels or tracks (_1\"Cr \·cgetation and soil 

Yegclation and soil by ahrading, compress in.!: 

icc~rich soils, lw subsidence. Several receni 

ORVs in wt"!stc~. northern, and eastern A!n:d::; 

passage of an ATV (Wer dry 

Yirtually eliminate them. (Ahlstrand et 

al, 1988). The sheming of the organic 

mat can lead to subsidence and erosion, 

for 

re\e"'"uuon. \ Gersper & 

aL, !984) Research 

Wrangcll~St. Elias National 

Park and Presen·e found. ·'The passage 

of but one ATV through some 

landscapes can leave an indelible 

1mpnnt Continued usc of ATVs over 

the same path \Yill result in disturbancl: 

that is iiTcversible in tcnns of the human 

life span 

he impossible to and only a 

functional rccovcf!- can be expected for 

much of the remaining trail network 

within the park and preserve if the trails 

are abandoned.'' (Ahlstrand 1985) 
451 

15 

trails radiating from road~ide trail heads, rural settlements, individual homesteads, lodges, hunting camps, remote 

landing. strips and other points of access expand c\'cr further into previously unaffected lands. By conservative 

estimates. each mile of \\"ell-used ATV trail averaging six feet in width effectively alters 3/4 acres of natural vegetation 

Dtning overflights of south-central Alaska, the author observed and photographed hca\'ily used trails in excess of 600 

feet in width cros:-:;ing wetlands thus altering upwards of 75 acres of natmal habitat per mile_ Ground-based 

obsen·ations, aYailable literature and intcrvie\YS with persons knO\vlcdgcable of ATV uses in otht->r regions of the state 

indicate that trails in excess of three hundred feet (37.5 acres per mile) are not tmustwL (Sinnott, 1990). 

When crossing Yrct areas, ATVs chum the surface, crc:ating a viscous mixture of mud, shredded vcgt:tation m1d stagnant 

water. Other driYers try to avoid such spots hy going around them. This only exacerbates the situation, f\trther 

expanding the width of the trail. ATV trails crossing \Vetlands intert'ere with the natural hydraulics. This can result in 

partial draining, interdicting: the flmv of nutrients, hampering: the filtering of suspended solids from the \'Vater column, 

and generally degrading: habitat making it less suitable for dependent wildlife. ATVs expel fuel and lubricating oils, 

contaminating aiTeeted 

ecosystems. 

ATV trails traversing drier 

areas are generally nanmver. 

l Iowevcr, the damage can he 

equall!" seYere and long: 

lasting. ATV users tend to 

branch out over drier tem:tin. 

Vegetation is often fragile 

and slow to recover. Slopes 

arc particularly vulnerable to 

erosion once the ycgetation 

and organic soil have been 

disturbed. This is especially 

true \Vherc machines traverse 

slopes at steep m1g:lcs 

Cmshing and stripping 

insulating vegetation can 

n.~sult in pc1mafrost thaw and 

the pmiial collapse of large 

sections of hillsides and 

valley slopes 

rn addition to initiating erosion, A TV trails fragment natural habitat. They divide plant communities and interfere with 

vegetative processes. ATV tires and tracks can·y the spores of alien \Yceds and other inYasiYe plants, introducing them 

onto disturbed ground. Once established, these alien plants spread, crowding out indigenous species and upsetting and 

altering natural ecosystems. 

ATV -generated erosion sluices a1vay fertile topsoil, retarding revegetation. Lost soil and associated debris are \Yashed 

into streams. lakes and marshes. Suspended particulates absorb the rays of the sun, increasing water temperature and 

reducing oxygen content. :-:1ediments can smother gravel beds used by spawning fish and substantially alter aquatic 

ecosystems. Where A TV trails cross small streams they \Year away the embankments and widen the streambed. This in 

turn spreads out the water column. Such shallmv spots can impede the passage of anadromous fish. pmticularly during 

dr:v spells. Shnllow areas tend to freeze faster than deeper \:raters, creating ice dmns that fmthcr modify aquatic 

ecosystems. 

15 
452 

ATV drivers often 

use shallow 

streambeds as 

natural 

thoroughfares 

through heavy brush 

and uneven tcnain. 

The snorkel air 

intake of an 

allows travel 

through moderately 

deep water. Fully 

amphibious ATVs 

can boat through 

stretches of deep 

water. Larger 4X4 

pickups and 

modified monster 

trucks \vith large. 

bean' tread tires can 

driv~· through \Yater 

ranging from five 

fed to eight feet in 

depth. The act of 

fording and 

16 

traveling in streams grinds up streambed components and cmshcs aquatic life. ATVs can substantially increase the 

moriality or fish eggs and [ry and render stretches of such streams unsuitable for spa\\ ning. 

Both the Yisual and audio intmsions of ATVs stress and displace \Yildlife to less desirable habitats. (Alstrand et al. 

197 4 ). Wildlife arc especially vulnerable during seasonul concentrations and when experiencing the sires:-; of 

reproduction, rearing young, preparing for \Yintcr, contending \Yith severe \Vcathcr and reduced food availability. "In 

some parts of Alaska. ORV access is believed to be a significant factor in reducing moose bull: cow ratios .... altering 

age structures by selective han'est of large hulls .. and loss of lightly hunted areas The rapid of off-road 

vehicle (OR V) usc by hunters has caused increasing concem among wildlife managers in Alaska." 1990). 

Depending upon topography, vegetation, vehicle type and of affected \Yildlifc, an ATV lays down an 

auJitory footprint approximately two miles in diameter. "Thus, an thai can br:: heard a mile to either side and 

which travels 50 miles in a day he heard over a lOO square mile area. Additional ORVs compound the problem. 

(Sinnott 1990, 30). Mechanical interfere with the ability of\vildlife to communicate. locate food, and detect 

predators. Wild animals particularly to noise may be for~cd to abandon productiYc feeding or nesting 

grounds. (Alstrand et al, 1974). 

Areas of rcfugia are cmcial to the viability of sensitive wildlife populations. ''Refugia are areas, either difficult to 

law, that support populations of animals \\ith little or no hunting pressure." (SinnotL 1990) One 

clements of rcfugia is the relati\'e absence of unpredictable and disruptiYe intmsions. Such areas may 

serve as seasonal sanctuaries \Yhcre wildlife can temporarily escape stressful disturbances. In northern regions, wildlife 

generally requires much larger areas ofhabitaL including refugia, than do animals in temperate regions. The Inupiat of 

northwest Alaska recognize the upper reaches of the Utukok River as one such area for the birthing or caribou culves in 

1l1e spring. The Arctic Wildlife Refuge in northea:-;tcm Alaska is critical to the reproductive cycle of the Porcupine 

cmihou herd. Other wildlife :-;pceics also seek zones of rcfugia to replenish themsclYes in preparation for seasonal 

biological demands and enYiromncntal stresses. With the expanding mcchani;:ation of backcountry tra\'el in Alaska, 

areas of refugia arc becoming increasingly scarce. The long~tenn impacts on aHccted \\'ildlifc populations are yet to be 

detcnnined. 

Laws Regulations and Policies. 

16 
453 

17 

In Alaska, f~dcral and state lavvs, regulations and policic~ affect the operation of o1T-road Ychiclcs Local community 

and borough govcmmcnts may also enact statutes regulating A TV usc. 

Executive Orders. The foundation for federal management of ATV access is found in Executive Order 11644, as 

amended by EO 11989: Use of Off-Road Vehicles on the Public Lands. These cxecuthrc orders require federal land 

managing agencies to promulgate special regulations govcming A TV access on public lands and to officially designate 

areas and trails where such use mav occur. The EOs sets forth hasic standards for the designation of ATV areas and 

trails, including minimizing impacts to soils, vegetation, wildlife_ watersheds, and other users of the public lands. They 

prohihit A TV areas and trails in designated \vildemess or primitive areas. The EOs direct that ATV areas and trails 

may he designated in national parks and national wildlife refuges only ifthc heads of the respective agencies determine 

such access will not adYersdy affect natural, aesthetic or scenic values. The executiYe orders further direct responsible 

agencies to seck cooperation \Vith state and local agencies in the management of ATV access 

Alaska National Interest Lands Conseryation Act. (ANILCA) provides special exceptions to general laws goveming 

access on federal conservation units. The access provisions of this Act have profound implications as to the 

management of all-tenain vehicles \Yithin Alaska. The follO\Ying is a brief summary of provisions vvith particular 

relevm1cc to the issue of ATV access 

Sec. 205 provides for commercial fishing on national parklands in Cape Krusenstem National Monument, the 

Malaspina Glacier Forelands area of Wrangell-St. Elias National Prcsen'e and the Dr:v Bay area of Glacier Day National 

Preserve. It includes provisions permitting the on-going use of motorized Yehiclc:s "directly incident to such rights." 

General activities related to commercial fishing are not to be significantly expanded heyond the 1cYel of use occurring 

in 1979. This section implies that the NPS is lo dctcnninc kvels of motor vehicle access and other uses as of 1979 and 

to actively monitor commercial fishing activities to be certain that such uses do not significantly expand beyond the 

baseline date. Sec. 304 (d) establishes the same conditions for commercial fishing activities on national wildlife refuge 

lands. 

Title VIII of ANILCA sets the hasic guidelines for the management of subsistence on federal public lands in Alaska. 

Sec. 801 states, "The Congress finds and declares that ... continuation of the oppmiunity for subsistence uses of 

resources on public and other lands is threatened ... by increased acccssihilitv of remote areas containing subsistence 

resources, and b!· taking of fish and wildlife in a manner inconsistent with recognized principles of fish and 'vildlife 

mmwgemcnt." (emphasis added). 

Sec. 811 (a) addresses subsistence access stating, "The Secretary shall ensure that mral residents engagcJ in subsistence 

uses shall haYe reasonable access to subsistence resources on the public land. Notwithstanding any other provision of 

this Act, or other law, the Secretary shall penn it on the public lands appropriate usc for subsistence purposes of 

sno\vmobilcs, motorboats, and other means of surface transportation traditionally emploved for such purposes by local 

residents., suhject to reasonable regulation." (emphasis added). 

Those who contend that ATVs vYere intended to be included in special subsistence access provisions often reference the 

above wording. The interpretation of''traditionally employed" voould unquestionably include such long-standing 

modes of access as dog teams, pack dogs anJ non-motorized watercraft. These means of travel have a long history of 

use in Alaska, particularly in rural areas. The specific inclusion of snowmachines and motorboats in the wording 

implies that, although these modes of access do not have as great a Jepth of historic use, they are to he pennitted as 

exceptions to ''traditionally employed." "ANILCA does not define mechanized vehicles of any kind as traditional 

means of transportation. The use of snowmachines, motorboats and (under specific conditions) aircraft as methods of 

transportation in association with subsistence activities are specifically pennitted by the act. Converselv the act 

provides no explicit exception to existing park and wildemess regulations that would allm:v the use of ATVs in 

association Yvith anv subsistence activit\·'.'' (Kunz and Troxel, 1988:) (Emphasis added). All pennissiblc modes of 

subsistence acce:::;s are to he subject to "reasonable regulations" to ensure that their use docs not significantly impair the 

resources and character of affected puhlic lm1ds. 

Sec. 1102, addresses transportation and utility systems that cross federal puhlic lands. It states, in part, "For the 

pmvoses of this title The tenn ''transportation or utility syrstcm·' means.. Improved rights-of-way for 

snnwmachines, air cushion vehicles_ and other tvpes of all-tenain vehicles.'' (Emphasis added). This is the only 

wording found in the act which specifically includes the tcnn "'all-terrain vehicles." Its absence elsewhere in the act is 

17 
454 

18 

:'l.ignificant and supports the contention that had Congress intended to pe1mit v..ridcsprcad ATV ust: on public lands, it 

would have so specified in the Act 

Sec. 1110 provides for special access across and within conservation units for reasonable travel to and from rural 

communitie~, homcsitcs and other inholdings_ This provision states, "The Secretary shall penn it, ... the usL: of 

snmvmachines (during periods of adequate snmY coYer, or ti·ozcn river conditions in the case of wild and scenic rivers), 

motorboats, aitvlanes and non-motorized suri'acc transportation methods for traditional activities ... and for travel to 

and from villages and homcsites.. Nothing in this section shall be construed as prohibiting the usc of other methods 

of transpmiation for such travel and activities on conseryation svstem lands ·where such usc is permitted bv this Act or 

other law.'' (Emphasis added). Thl.'! above underlined text neither excludes nor includes ''other methods of 

tram:pmtation." It may be argued that, unless othenvisc specifically proYided for in ANILCA or other law, ATV usc is 

prohibited 

All of the above must be interpreted in light of the overriding purpose of the act as stated in Title I, "It is the intent of 

Congress in this Act to preserve unrivaled scenic and geological values associated with natural landscapes ... to preserve 

in their natural state extensive unaltered arctic tundra, boreal forest, and coastal rainforest ecosvstems; to protect the 

resources related to subsistence nl.'!eds; to protect and preserve historic and archeological sites, rivers, J[mds, and to 

preserve wilderness resource values and related recreational opportunities ... and to maintain oppmiunities for scientific 

research and undisturbed ecosystems." (Emphasis added). Regardless of \Vhatever modes of access are permitted on 

public lands. such access must he managed so as not to compromise the basic purposes of the !\ct. 

Regulations. Based on EO 11644 m1d 11989 plus relevant provisions of the Clean i\ir Act, Environmental Protection 

Act, Clean Waters Act, Endangered Species Act, Wiluemcss Act, AN!LCA, and other applicable lmn, federalla11d 

managing agencies arc required to promulgate regulations and establish policies govcming ATV access on public lands. 

In Alaska, 43 CFR Part 36 sets fmih special multi-agcnc~y regulations designed. in pmi, to implement the special access 

rdatcd provisions of ANILCA. Each federal land management agency is expected to establish its own set of ATV 

access regulations tailored to its particular legal mandates. 

43 CFR §36.11 carries out the intent of Section 111 O(a) of ANILCA and covers non-subsistence usc of snowmachines, 

motorboats, nonmoiorized surface transponation and oli-road vehicles. In regard to ATVs, the regulation complies 

with Executive Order 11644 as amended. specifically requiring that routes and areas fori\ TV access he officially 

designated. lt also provides for agencies to issue permits for ATV use on existing otT-road vehicle trails when it is 

detennined that such use will be compatible with the purpose and values of the affected area §36.10 and §36.12 

provide for access to inholdings and temporary access across federal lands. 

NATIONAL PARK SERVICE 

NPS Organic Act. Of all fedcrall~md managing agencies, the National Park Service (NPS) operates under the most 

stringent resource protection mandates. The NPS Organic Act of 1916, as amended by the ReJ.wood Act of 1972, 

states, in part, "The service ... shall promote and regulate the national parks, monuments, and reservations .. hy such 

means and measures ... which purpose is to conserve the scenery and the natural and historic objects and the \v·ild life 

therein and to provide for the enjovment of the same in such manner and bY such means as will leave them unimpaired 

for the cnjovment of future generations. Congrl.'!ss furthl.'!r rcaffinns, declares. and directs that the ... regulation ofthL: 

various areas of the National Park System ... shall he consistent \\·ith and founded in ... the common benefit of all 

people of the United States. The authorization of activities shall he construed and the protection, management, and 

administration of these areas shall he conducted in light of the high public value and intcgritv of the National Park 

Svstem and shall not be exercised in dl.'!rogation of the Yalues and pumoses for which these various areas have been 

established except as mav have been or shall he directlY and specifically provided bY Congress.'' (Emphasis added). 

Based on the above, the National Park Senrice cannot legitimately pennit ATV access on parkhmds that violates the 

standard of ·'unimpaired'' unless Congress specifically directs otherwise. With the exception of commercial fishing, 

thcrl.'! is no specific language in ANILCA, nor elsewhere, requiring the NPS to permit thl.'! use of ATVs on federally 

owned parklands in Alaska. 

NPS Policv. National park management is required to adhere to established National Park Scnrice policies unless 

specifically \\·aiYed or modified by the Secretary: of the Interior, Assistant Secretmy or the Director of the National Park 

18 
455 

19 

Service. NPS policy includes numerous provisions relevant to the management of ATV s. Those having the most direct 

implications include, '"Oeneral regulations addressing ... off-road vehicle use .. require that special regulations be 

developed before these uses mav be: authorized in parks." (emphasis added). NPS policy also directs, "'Subsistence uses 

and access \Yill be a11mvcd. only \Yhere such activities are specifically mandated by federallaYv . Subsistence uses v,;ill 

be conducted in accordflllCL': with the provisions of lmv and consistent with sound management policies and managed so 

that the composition, condition, and distribution of native plant m1d animal comnllmitics and ecosvstem dvnamics are 

not significant!\' altered." (NPS Management Policies 1988, Chap. 8:4 & 8:16). 

NPS policy clearly directs management to promulgate special regulations prior to permitting off-road vehicle access on 

parklands. To date, only two regulations specifically addressing of[-road vehicle access on parklands in Alaska have 

been promulgated; the usc of ATVs in support of commercial fishing and reindeer herding. Yet, the majority of 

national parks in Alaska experience A TV incursions ch:::arly in violation of NPS management policies and the lmv. 

Draft NP~ Policies. The National Park Service drafted proposed changes to its manual of management policies. These 

changes ret1ect a grmving awareness of the spirit of the NPS organic act and the realization that greater cliort must be 

taken to effectively protect and preserve the national parks. The following excerpts from this draft have special 

rele·vance to the question of ATV ill[magement: 

''The 1970 National Park System General Authorities Act, as amended, prohibits the Service from al1m\~ing any 

activities that would cause derogation of the values and put]JOses for which the parks han~ been established." 

"When a usc is aulhorized by lmv, but not mandated, and may cause 

values, !!JS.'.lii:D:!~~!j_JlUJigQf.f.!.i'!f.J'!!J1>g<;_!§_I_QJ!~'22i'l!J"'.!l!!l!!.!fl!:J!_!;jf!'..£f~'-fl'Wli_I!Li!'li2'B£!!1f!!!'..!E'E.J.cirr!2Zfr!J.Q[J,_J'1!!I_ 

"Service-wide regulations addressing ... off-road vehicle use ... require that special, park-specific regulations be 

developed befOre these uses mav be allowed ;n parks." (emphasis added) 

''(An) off~road vehicle (is) any motorized vehicle designed for or capable of cross-country travel on or immediately 

over. land, ·water, sand, snmY, ice, mm-sh, swampland, or other natural terrain. Any time there is a proposal to allow a 

motor vehicle meeting: this dL":scription to be used in a park, lhc provisions of Executive Order must be applied. Within 

the national park svstem. routes and areas may be designmed /()r off-road vehicle use onlv bv special regulation, and 

only in national presl':rves, national sl':ashorcs, nationallakeshorl':s, and national recreational areas. Routes and areas 

mav be designated onlv in locations in which there will be no adverse impacts on the area's natural, cultural, scenic, 

and esthetic values, and in consideration of other park u:;es.'· (Emphasis added) 

The draft changes to NPS Policies make it abundantly clear the agency intends that the usc of A TVs \Vi thin park 

boundaries meet strict standards of resource protection and be subject to the regulator~y process. 

NPS Regulations. The Organic Act, enabling legislation for individual park units and NPS policies serve as 

touchstones for the promulgation ofNPS regulations. The Park Sen:ice is called to a very high standard of stevi'ardship 

to prevent deterioration of park values and resources. The reference to "future generations" implies that Congress 

intended park protection sufficient to maintain and perpetuate the resources, character and integrity of the parks beyond 

the immediate needs and desires of present-day users. The RedVi-ood Act further clarifies this intent stating that only 

Congress should "specifically and directly" make exclusions to the basic protection mandate of the organic act. 

Regulations specifically designed for the National Park System arc found at 36 CFR Chapter L Those relevant to th~ 

management of ATVs occur throughout this chapter. §4.1 0 Tra\'el on park roads and designated routes, ser\'es as the 

basic reference for off'~ road vehicle use. This regulation directs, in pmi, that "routes and areas shall be promulgated as 

special n::gulations." (Emphasis added). The regulation also establishes basic parameters for ATV use. §4.11 provides 

for limits on the type of \'chicle that may be used. 

19 
456 

20 

The seriousness with 'lvhich the Park Service generally Yicv1'S A TVs is reflected in a number of park-specific 

regulations. Where ATV access is pcnnittcd in parks outside of Alaska, the NPS sets forth detailed limits and 

guidelines to minimize negatiYe impacts to park resources and visitors. This includes clearly designating usc areas: 

specifying standard::; for acceptable types of vehicles; establishing restrictions as to speeds, seasons and hours of use: 

and idcntil\ing areas off-limits to ATV access. NPS regulations require ATV users to travel on dearly marked trails 

and routes, carry certain basic equipment, obtain petmits, refrain from towing trailers, repair trail or road damage 

resulting from such use, and avoid conflicts \Yith other park users. 

Considering the exhaustive nature of regulations governing the usc of ATVs on parklands outsiJe of Alaska, it is 

striking that only two references to off-road vehicle access arc found in the special regulations for Alaska parks. These 

occur at§ 13.61 (a) "Off-Road f'chicles. The use of off-road vehicles (in 13ering Land 13ridge National Preserve) for 

purposes of reindeer grazing may be permitted in accordance with a petmit issued by the Superintendent. §13.2l(c), 

Commercial Fishing, states, in part, '"The exercise of valid commercial fishing rights or privileges ... in Cape 

Kruscnstem National Monument, the Malaspina Glacier Forelands of Wrangell-St. Elias National Preserve, and the DrJ: 

Bay area of Glacier Bay National Preserve, including the use of these park area::; for ... motorized vehicles ... may 

continue proYidcd that all such use is directly incident to the exercise of those privileges." These regulation sets forth 

conditions under vvhich the superintendent may restrict uses hased on the protection or park resources. 

The only other Alaska specific regulation with a possible indirect reference to off-road vehicle tniYcl occurs at § 13.46 

[_/se motorboats, dog teams, and other means o.fsurface transportation traditional(v employed hy local 

engaged in subsistence uses. This regulation addresses access for subsistence purposes, specifically 

snowmobiles and motorboats as directed by Title VIII of ANILCA. lt does not specilY what is included under the term 

''other means of surface transportation traditionally employed.." As noted earlier, there is no convincing evidence to 

support the inclusion of ATVs as being "traditionally employed." There is no proYision in law to treat ATVs as an 

exception to the "traditionally employed" requirement. Thus, \Vith the exception of reindeer grazing in Bering Land 

I3ridgc National Preserve and commercial fishing in three park units. the general use of ATVs off established roads and 

parking areas is contraiJ' to federal law and n;gulations. 

The brevity of NPS regulations governing ATV usc in national parks in Alaska is particularly remarkable considering 

that the total acreage of parklands impacted by such access undoubtedly exceeds the combined total of all other national 

parks. 

Examples of National Park ATV Management: The following are examples ofNPS access management on a unit-byunit basis. 

Wrangell-St. Elias National Park and Preserve 

.ANII..CA Sec 201 (9) states. in part, "The park and preserve shall be managed .... To maintain unimpaired the scenic 

beauty and quality of the high mountain peaks. foothills, glacial systems, lakes, and streams, valk:ys, and coastal 

landscapes in their natural state; to protect habitat for, and populations offish and "'Wildlife ..... 

20 
457 

21 

Wrangell-SL Elias National Park and Preserve permits the usc of!\ TVs for both subsistence and recreational purvoscs, 

despite the fact that no park-specific ATV access regulations have been promulgated. The NPS Alaska Regional Office 

Wrangell-St. Elias National Park & Preserve Visitor Contact Station 

unilaterally decided to forgo the standard process of codifying access regulations. Instead, it inserted language in the 

park's General Management Plan (GMP) outlining access management. 

Subsistence Access: The GMP states, "The use of ORVs/ATVs by local residents for subsistence purpose;:; may be 

pcnnittcd on designated routl.':s, where the usc is customary and traditional under a pem1it system . The 

superintendent will designate routes in accordance with 36 CFR 13.4G. Cunently, ORV use is limited to existing routes 

under pennits issued by the superintendent" (Wrangell-St. Elias General Management Plan, 1986) (Emphasis added). 

Fourteen years haYe passed since the publication of the park GMP. Park management has yet to take action to 

desib:rnatc subsistence ATV routes or to confine such use to trails and routes existing prior to the passage of A NILCA. 

Despite GMP language to the contrary·, local residents are not required to obtain A TV usc permits. ATVs for 

subsistence purpost::s are allo"\ved throughout the park without regard to permits. routes. trails. sensitive \Vildlife habitat 

or wildeml':ss 1.ll':signation. An ATV user found to he crossing an area previously' unmarked by' such use will unlikdy be 

stopped if it is determined he resides in a designated subsistence resident zone. In effect, none of the ATV management 

guidelines established by the GMP have been implemented. 

As originally intended, the tenn ''subsistence resident zone'' was to identitY significant concentrations of persons having 

a historic pattern of subsistence use of the lands in the park before its establishment. It \Vas believed this approach 

would reduce the burden of issuing large numbers of individual subsistence use p<...'TlTiits. Thus, residents of small, 

isolated mral communities consisting primarily of historic users would be given blanket coverage. Those with a 

demonstrated subsistence history living outside such zones \\'Ould he assigned special subsistence use permits. 

Descendents of historic users would assume subsistence privileges so long as they continutxi to reside in the general 

area of the park. 

Wrangell-St. Elias management opted for a broad interpretation of a subsistence resident zone. This \Vas done, in part, 

to aYoid the politically sensitive issue of identifying eligible users residing outside more restricted zones. Had the NPS 

chosen to usc a narro\\ er definition, numerous local residents would have been ineligible for subsistence privileges. 

The effect of the NPS liberal approach \Vas to open the park to a far greater number of resident users whose ranks 

continue to grow_ 

21 
458 

22 

As implemented by the park, the tenn "resident zone community'· encompasse~ areas extending well oYer a dozen 

miles, including sparsely settled lands. The park has been receptive to demands for subsistence zone status from 

communities and individuals as far a\1\'ay as the Alaska llighway. Resident zone boundaries arc broadly dnn:rn 

t.whracing large numbers of residents with no established history of subsistence activity. Anyone relocating into one of 

these broadly defined zones automatically becomes eligible for subsistence priYileges "\\'ithin the park. including 

unrestricted usc of ATV s on parklands. 

Residents entering the park for the purpose o[ hunting during the summer and early fall monlhs usc a \'ariety of ATVs. 

These includ~ so-called monster trucks with m·asized tires, h~avy dual track Weasds. amphibious Argos and quads. 

Some residents drive their vehicles across the frozen Copper River during the \:vinter months and cache them \Vi thin the 

park boundary for later usc in the summer and fall. 

Recreational Access: The Wrangell-St. Elias general management plan acknowledges that ATVs use o1T established 

roads and parking areas results in significant resource damage contrary to existing la\YS and policies. The GMP goes on 

to state, ''Limited recreational use by motorized vehicles of designated primitive park roads will he subject to pcnnits 

m1d restrictions necessary to prevent resource damage.'' (Emphasis added). NPS policy directs, "Park roads will be \Yell 

constructed, ret1ect the highest principles of park design, enhance the visitor experience, and he scnsitin~ to 

cn\'ironrnental factors .. "(NPS Policies, U.S. D~pt. of the Interior 1988. Chap. 9.8). The majority of ATV routes found 

in Wrangell-St. Elias fall far short of these standards. 

Trail Conditions: This writer ~pent a total of five days walking and examining A TV trails radiating off the Nahesna 

Road in the north em region of the park. In truth, these so-called primitive roads were more often twughs than trails, 

filled with a viscous quagmire of shredded vegetation, pulverized organic soil and stagnant \'<~ater. Where they ascend 

22 
459 

23 

relatively well-drained slopes, rapid runoff of melting snovv and rain has sluiced mYay the organic soil exposing sterile 

rock and graveL Natural drainage patterns have been altered. Lightly impacted and less fragile lands may recover to a 

reasonable facsimile of their original natural state \Vi thin several years when use ceases. However, large areas of more 

fragile or heavily used lands may not achieve full recovery for decades and likcl}· much longer. 

Were the abo·ve conditions confined to single narrow lanes, the impact \\'ould still be unacceptable under existing laws 

and policy. How eyer_ trails arc more webs of ctisscrossing tracks \:Vith side trails branching off into adjacent tenain. In 

tenus of affected acreage, damage scycrity and sloyy recovery·, Wrangdl-St. Elias National Park and PresctTC is 

undoubtedly one of the nation-s most hem'ily ATV -impacted parks. 

The Park Service-s contention that A TV use occurs only on established park roads is contradicted by its own 

publication, "Wrangell-St. E_lias National P[!.rk and Preserve Hiking, Bikffig_& !l1"V Trails in the Areas."' The tcm1s, 

"trailhead" and "trail" are found throughout the te,t'< -Wlll"-'"-"-"""""="'-'"'-'-""'-llllilill'-"l._illl"-"l.illJC!LJ.Iilll.W.l'-ill'-"'l-""\' 

roads, including the following: "<<<find the BLM 

road north until it becmnes a trail." ''This trail is 

vehicles. The trail may be traveled for miles Oc_ _____________________ _j 

references impact stuJies and mitigation 

research on ATV trails anJ encourages driver 

cooperation. The Jocument also states, "Past 

research has shown that ATV use degrades 

soil and vegetative rc:sources ... "(WrangellSt. Elias National Park and Preserve /\TV 

Pcnnits). Despite the fact that management 

acknmvlcdges the existence of recreational 

ATV trails within the park, the National Park 

Service has taken no action to officially 

sanction these trails as mandated by law and 

policy< 

Park ATV Research: Concern over A TV 

access led the Park Service to initiate 

research into ATV impacts in Wrangell-St. 

Elias soon after the passage of ANILCA 

Research efforts focused primarily on 

physical impacts to park soils and did not 

examine possible impacts to waterways, 

v:v-ildlife and other park users. Experiments 

included driving several ty-pes of all-tcnain 

vehicles across test plots to determine levels 

of impact. The park GMP referenced the 

study then in progress asserting that research 

results would be employed to fashion 

guidelines for the management of ATV 

access. 

In 1985. the findings of the Wrangell-Saint 

Elias ATV research v.-ere published. In part, 

the report concluJcd that ATVs cause 

significant and long-lasting environmental 

damage. H proposed, as a first step. that a 

fonnally designated trail system for legal 

ATV uses be established and a total ban of 

1\ TV use be placed on trails not part of the 

system. 'fhe study also recommended 

actions to mitigate environmental damage. (Racine & Ahlstrand 1985) 

23 
460 

Rather than using the 

ATV research results as 

directed by the park 

GMP. the NPS chose to 

initiate another study 

This follow-up research 

did not begin until 

1995, a full decade after 

the publication of the 

original report. When 

questioned m August of 

2000, the 

up 

work, park management 

indicated that the study 

had not been producti~rc 

~md \HIS lmgcly 

inacti\·e. NPS regional 

officials provided the 

same assessment. At a 

later date. this response 

was modified to 

indicate that research 

was ongoing and a 

repm1 would eventually be ror1mcr1rmnrr 

The \Hiler visited three ATV research test sites in the 

park The plots consisted mattmg 

secured to the surface Markers \vcre 

placed alongside the trails leading to the test plots 

Signs directed drivers to rc'1nain on the trail while 

the test plots. The condition ofthc test plots 

that monitoring and maintenance had been 

inactive for l\VO or more years. and stakes had 

J~l1len. Test materials or fully 

submerged in standing \Vater users had 

bypassed test ::rreas due to trail deterioration 

pioneering nc\v routes around them. A park 

employee confided that research funding had been 

\\ithdrann to avoid "tbro\Ying good money after had., 

Katmai National Park and PresctYe: 

ATV Management Program: fn !987. Katmai 

National Park and Preserve initiated a program to 

reduce illegal ATV incmsions. Individuals residing 

in the King Salmon/Naknek including the King 

Salmon Air f oree Base, entered the westem 

bormdary of the park on purpose of 

hunting, trapping and recreational riding. Based on 

NPS regulations and the park general management 

pl!m. A TV usc on parklands off established roads is 

illegal and poses a threat to park re~ourccs. Katmai 

National Park is legislatively closeJ to subsistence as 

24 
461 

25 

well as sport hunting. Aerial and surface patrol;; discovered A TV trails extending well into the l'mmer Katmai National 

Monument. 

The park staff devised an A TV management strategy emphasizing public outreach. Boundary maps and literature on 

access regulations and park resource concerns were provided to local residents. Park represent<Jtivcs organized and 

attended public meetings to explain and respond to ATV access questions and concems. BoundmJ markers were 

erected in areas ofpmiicularly heavy usc. The park worked closdy \Vith the U.S. fish and Wildlife Service, King 

Salmon Air Force l3asc command, local Native organizations and the regional Fish and Game Advisory CounciL 

Rangers contacted individuals entering the park on ATVs requesting their cooperation. Aerial patrols \Verc canicd out 

to determine the full extent of ATV incursions throughout the park. 

The Katmai ATV management prop·am initially encountered local resistance and criticism, although some residents 

expressed support. Pressure to tetminate the program \Yas applied at local, state and Congressional levels. Over a 

period of two years of eiTorL public sentiment gradually shifted as evidenced by a formal resolution of support by thC' 

local Fish and Game Advisory Council. Additionallv, the King Salmon Air Force Base fmmed a volunteer Wildlife 

Ethics Committee to assist park personnel in preventing illegal A TV incursions and protecting park resources. The 

group became a source of volunteer labor in maintaining park trails and facilities. Tl1cgal/\. TV incursions into the park 

declined significantly over the life of the progrmn. 

In early 1990, the Katmai A TV management program \Vas discontinued. l3ased on information prodded by local 

residents and park personnel, incursions into the park rapidly increased quickly retuming to and cventuall~l exceeding 

the levels encountered in 1987. 

Subsistence ATV Access: In the mid 1990s, the communitY of Kakhanok on the south shore of Lake Iliamna petitioned 

the Park Service to pem1it subsistence A TV access to Katmai National Preserve. Petitioners asserted a long-standing 

history of entering the presen'e \'ia A TV for the purpose of hunting. Park management initiated a study of these claims. 

Past park superintendents and other fmmcr park personnel familiar with local access pattetns \Vere questioned as their 

knmvledgc of the issue. All fonner park managers and other employees familiar \:Vith the area in question concurred 

that there was no prior evidence of regular ATV access in the nmihem preserve. 1\ draft of the resC'arch report \\'as 

submitted to the park in the summer of 2000. The \\Titer was unable to obtain a copy of this document 

Based on input from park repn:sentativcs, the writer infers the park praclices an informal policy of not actively 

monitming or enforcing restrictions on ATV incursions into the northern preserve section ofKatmai. These incursions 

violate NPS regulations and agency policy. 

It is politically difficult for the Park SetTice to deny subsistence A TV access to residents liYing north of the preserve 

boundal)1 while illegal incursions continue to occur along the "\Vestem bounda:r~y of the park. If the Park Service denies 

ATV accL:ss to an area open to subsistence and sport hunting, it must face the issue of illegal incursions along the 

vvestem boundary ,,,here consumptive uses are prohibited. 

Park nHmagement implied that residG':nts living north of the preserve feel they are subject to unfair discrimination, 

because sport hunters may i1y into the preserve to hunt game. This argtm1ent seems to resonate with some park stalT 

This rationale, however, is technically applicable to all national prcsenre lands in Alaska. If used as partial justification 

for opening Katmai PreseTYe to subsistence ATV access, it v.-ould set a precedent for opening all other NPS preserves in 

Alaska to subsistence /\TV access. 

Katmai National Park and Preserve is an ecologically diverse park with an impressive array of fish and \Yildlife 

resources. Large sections of Katmai consist of open dry tundra, \VidL: coastal tidelands, and inland waterwayrs that 

become solid surfaces for travel dming winter months. As 1\. TV technology evolves, these areas become increasingly 

attractiYe to those wishing to exploit untapped ''-'ildlife resources. The park is renow11ed for trophy -sized hro\\11 hears, 

moost:: and caribou as well as abundant furbcarers. The fishing is world class. If /\TV use is legitimized, it will be 

difficult to prevent incursions into pristine lands. The character of the park will be altered. Other communities will be 

encouraged to seek equal access privileges. 

Denali National Park and Preserve 

25 
462 

26 

Denali National Park is the flagship forthc National Park System in Alaska. Its central location. majestic scenery:, 

·viewable mega fauna, road tmd rail access and comfortable \·isitor accommodations ha\'e made Denali internationally 

famous. When Congress fashioned ANILCA, it expanded th0 park houndaries to encompass lands and n.':sourccs 

integral to the character of the miginal Mt McKinley National Park. 

Prospecting and the development of mineral claims along the extremities of the former Mt McKinley National Park 

included the moYing of hcayy equipment during \vinter months. This resulted in a number of bulldozed tracks knmvn 

as cat trails. Some cat trails became \Vinter routes for dog teams and later snowmobile users. 

Subsistence research conducted prior to the passage of ANILCA ddctmincd that ATV usc \\'US not a traditional means 

of local subsistence access. The park General Management Plan states, ''(T)he usc of off-road vehicles in locations 

other than established roads or designated routes in units of the national park system is prohibited (E. 0. 11644 and 

11989 and 43 CFR 36.11 (g)). Identification of possible rights-of-way does not constitute the designation of routes for 

off-road vehicle use.·· 

Residents of Cantwell and other persons residing along the eastern boundary of the park have expressed a desire to usc 

ATVs in addition to snowmachincs as a means or subsistence access within Denali National Park. No dctetmination 

has been made as of the date of this rcporL although some park staff members have cxprl":sscd sympathy with lhc 

request. Existing incursions 

violate NPS regulations aJ1d 

policy. 

The Canl\Ycll-Windy Cree:k Trail 

originates in CantwelL near the 

eastern park boundary, and 

ascends a nearhy lo\V ridge. The 

first 1.5 miles consist or a singlelane jeep trail crossing relatively 

well-drained tenain. The truil 

descends into Windy Creek 

Vallcv where conditions markcdlv 

dctcrtorate. Boggy sections of th~ 

trail are in particularly poor 

condition. Heavy mHing, loss of 

topsoil, destruction of vegetation 

coYer, ponding and braiding: 

characterize wetter sections of the 

trail. At least two side trails 

branch off from the main route 

and ascend mountain slopes to the 

south. Bank erosion occurs \vherc 

the trail crosses or parallels tributary· streams. It \'\'as not possible for the writer to follow the trail to its end, hut it 

appenrcd to extend into prc-ANlLCA parklands and designated \Yildemcss. 

If the park accedes to the Cant\\dl A TV demands, it should be expected that other residents \\'ill seek similar privileges. 

Growing competition from non-local sport hunters on lands outside the park make the less huntc:d park \vildlife 

increasingly attractive to local residents. 

In addition to the Windy Creek Trail, other trails otTer potential ATV access to Denali parklands. These include the 

Stampede Trail on the norlhL:astcm boundar~v, the Dunkle Mine Trail along the \tv' est Fork of the Chulitna River and the 

Peter's Creek Trail just outside the southeast em park boundar}". Additionally, ATVs may he driven over frozen ground 

during winter months to remote access points along the park boundary and cached for later use. Machinc:s. may also he 

transported via boat and light aircraft to departure: points near the park boundary. According to infmmation providc:d by 

park representatives. there presently is no evidence of,Yidcsprcad ATV use on parklanJs outside the Windy Creek area. 

The pott..'lltial, however,justifics active monitoring. 

26 
463 

27 

Glacier Bay National Park and Preserve: 

ANILCA provides for the continuation of commercial fishing operations based at Dry Bay, including the usc of 

motorized vehicles in support of fishing operations. Hl1\Yever, the law directs the National Park Service to prevent 

significant expansion of such operations beyond the l979leve1 and to protect park resources. (ANILCA Sec. 205). 

Commercial fishem1en utilize ATVs in logistical support of fishing activities. They also engage in recreational riding 

and spmi hunting \Vithin the preserve. Vehicles in use include four wheelers, three vvhcclers, Jeeps, land cruisers. 

pickup trucks and tracked machines. The nmnber of users varies from _year-to-year and may be up\vards of 200 in a 

given year. 

The Park Service faikd to carry out a detailed survey of equipment and facilities in place at the passage of ANILCA 

making it difficult to later establish limits. No ATV h·ails \Yere designated nor effective limits established regarding 

vehicle size, \Yeight or h·ead design. Commercial fishing pennit holders ha\·c been allowed to import additional 

machines exceeding the numbers in usc in 1979. 

In 1980. lherc v.:as an L':stimatcd 45 miles of primitive roads and seismic trails within the Dry Hay m·ea. Hy 1990, the 

estimated total \Vas 56 miles, a tw·enty percent increase. It seems safe to assume use continues to expand. In addition 

to primitive roads and seismic trails, there is a \Veb of crisscrossing makeshift trails and paths. Use impacts extend 

south\vard down the beach \Vcll beyond the area of commercial fishing operations. There have been reports of ATVs 

crossing from preserve onto parklands. 

Glacier Bay access concen1s arc not entirely limited to the northern preserve. ATVs arc a popular mcm1s o[ travel in 

and around the community of Gustavus. These uses arc largely on private or state owned lands, hut adjacent parklands 

are potentially vulnerable. Additionally, Natives from nearby coastal villages have pressed demands for access to 

historic cultural sites within the pm-k. This includes establishing subsistence fishing camps. It is likely that Native 

users '"·ill wish to employ ATVs in support of subsistence activities. 

Lake Clark National Park and Preserve 

Although not connected to a road system, Lake Clark NP&P is a popular destination for residents of south-central 

Alaska as \Vdl as many non-resident visitors to the state. Its close proximity to the population centers of Anchorage 

and the Kenai Peninsula combined with outstanding scenery; excellent fishing and abund~mt wildlife drm:v increasing 

numbers of visitors. The park boasts several private sport lodges and commercial guiding operations. 

In 1991, A TV users were entering onto parklands in the vicinity of Port Alsworth on the south shore of Lake Clark. 

Local residents drove personal trucks and ATVs onto nearby parklands to harvest fire\vood. Although the park did not 

designate a route for this purpose, use was unofficially sanctioned. There were also indications of A TV s being used to 

travel from Port Alsworth to the western end of Kontrashihuna Lake over a non-designated traiL 

Lake Clark proper is a navigable \Vatcrway under state management. During the winter months the lake usually freezes 

over becoming a smooth, hard-surface travel route for local residents driving trucks and personal ATVs. Some of this 

usc branches off from the lake and enters onto federal parklands. Users harvest trees as firewood or building logs and 

engage in trapping and hunting. Where federal parklands arc crossed, such usc is in violation of federal regulations, 

unless the user asse1is access to pri\'ate inholdings. 

Recent infmmation indicates that ATV use \Yithin Lake Clark NP&P has significantly expanded since the 1991 SU1Tey. 

A TVs reportedly access lands in the Chinitna Bay area from Silver Salmon Creek to Shelter Cove. These are used in 

suppoti of commercial fishing operations. ATV trails follow the upper shoreline benches crossing adjacent coastal 

meadows. Trails extend nortlnvard from the shoreline of Lake Iliamna up the Tazimina River crossing the park 

boundary. Hovercrafts reportedly have vmrkcd their \vay up Big River to Big River Lakes just outside the park 

boundal)'. and airboats have ascended the Stoney River into the park. Resource development on private lands in the 

Crescent River area on the east side of the park has resulted in the development of primitive roads. Residents of the 

Kenai Peninsula fcny A TVs across Cook Inlet to the park shoreline for recreational purposes. 

27 
464 

28 

Despite its rugged terrain, l,akc Clark NP&P has. an abundance of land suitable for ATV traveL As ATV technology 

evolves_ local residents will likely wish to extend their subsistence activities further into parklands. Repmtcdly, the 

park, at one time, entertained the possibili(v of designating an ATV trail running nmthward from Lake Clark into the 

nearby open foothills a$ a convenient overland route for residents to carry out caribou hunting. Had such a route been 

established, ATV uses and impacts \Vould undoubtedly have expanded. The several villages in and around the park 

coupled with the ncarb;r population concl':ntration of the Kenai Peninsula and the urban area of Anchorage will continue 

to exert pressures for increased accc_ss. 

Lake Clark NP&P serves as a unique testing ground for the National Park Service in A TV management. Except for an 

overland transportation system, Lake Clark \V(mld likely rival Denali as a premier \'isitor destination. The combination 

of local and non-local users, sport and subsistence hunting, commercial fishing, inten1ally based commercial operators, 

mixture of land status, and a rich anay of mega fauna places the park in the cenkr of the debate over how national parks 

in Alaska should he managed. Access management \\'ill play a major role in dctennining hmY adept the Park Service 

will he in meeting this challenge. 

Gates of the Arctic National Park and Prcsen:e 

Gates of the Arctic National Park and Preserve was envisioned as a place where a major, pristine segment of the central 

Brooks Range \Vildemess would be preserved in perpetuity. Except for traditional, non-damaging subsistence use by a 

few scattered villages, the park would be maintained as the place where visitors could immerse themselves in an arctic 

alpine \-Vildcmess setting. 

For all its austerc, rugged beauty the Gates of the Arctic it is a fragilc land \vith a paper-thin organic membrane 

covering petmanently frozen sub soils. The growing season is measured in \Yceks offering little leeway for natiYe 

plants and animals to cany out life's essential processes. As has been clearly documented in other arctic regions, 

human generated disturbances can havt: long lasting and far reaching environmental consequences. 

Anaktuvuk Pass: The Inupiaq communit}"' of Anaktuvuk Pass is situated just inside the north central boundary of the 

park. It is surrounded on three sides by a combination of federal parklands and lands mvncd by the Arctic Slope 

Regional Corporation (ASRC), of \Vhich it is a part, and village corporation lands. When the park was created, the 

ASRC possessed lands extending outward from the village as far us Chandler Lake, approximately 25 miles \Vest. The 

villagers of Anaktuvuk Pass historically utilized these lands for subsislence purposes and consider them an integral part 

of their cultural landscape. 1\s Anaktuvuk Pass villagers acquired ATVs, they used them to travel oYcrland to exploit 

lands and resources owned by their regional corporation, /\TV incursions onto federal lands were relatiyely minor at 

the time. 

Land Exchange: Shortly after Gates of the Arctic National Park was established, the Arctic Slope Regional Corpomtion 

approached the Department of the Interior with a proposal to exchange lands it owned in the Chandler Lake area for 

other federal lands holding: greater promise of mineral resources. With the support of the Alaska Congressional 

Delegation, the exchange was consummated. 

After the fact, the residents of Anaktumk Pass felt that they were not fully infonned of the conditions of the land 

exchange. They came to realize that the fanner ASRC lands \lo,~ere now federally owned parklands subject to .!\TV 

access restrictions. Subsistence SIH.w:machine access remained intact. After a long and occasionally contentious series 

of negotiations, the issue \Vas settled, in patt, through additional federal legislation. The Congress removed certain 

parklands from \Vildemcss status. In exchange, the village corporation and ASRC provided for recreational nonmotorized access across Native 0\Vncd lands and agreed to forego the construction of roads or other pennancnt 

developments on much of the Native land \Yithin the park boundat}'. There \lo,'as also an understanding that ATV access 

would not he granted the status as a customary and traditional means of subsistence access. 

Research: In 1986, the National Park Senlice can-ied out a study of A TV impacts on lands and resources in the general 

area of Anaktuntk Pass. This research was in response to expressed conccms by local residents that being restricted to 

a single corridor through non-wildemess parklands to Chandler Lake unduly constrained their access to subsistence 

resources. "l'hey alleged that limiting users to a narrow route concentrated impacts resulting in greater terrain damage. 

The study included the use of trail test sites, remote photo documentation, aerial surveys and on~site evaluations of 

28 
465 

29 

ATV uses. Local residents. served as consultants and a~sistants for the project. Research ciJorts encountered some 

resistance from local residents, but compensating adjustments were made. (Kuntz and Troxel, 1988) 

The rcsem-ch report published in 1988 slates, "Usc of all-tcnain vehicles (ATV) by residents of Anaktuvuk Pass .. for 

access to traditional subsistence resources has increased rapidly over the past few years as vehicles haYe become more 

numerous in the village. The etTects of this activity on vegetation and soils have become increasingly evident in all 

directions leading from the village. '"'-"""~"'-"""-J="'-'="-"====='-""-""-""-"'"="-"==="'-'='-"'=== to evolve." (Ahlstrand et al, 1988) 

Research ddc1mined that even light usc hy Argo ATVs has an adverse impact on native vegetation and soils. ''Poorly 

drained \Vet tcnain should always be avoided, especially fine textured soils, as a single pass bv an ATV can leave a 

dccplv rutted path \vith uprookd and abraded or broken plants .... A~ rutted areas are subjected to additional use or 

subsidence, the ruts may deepen until the trail becomes impassable. Parallel trails become established to detour the 

impassable sections. Abandoned portions do not recover before the ne\Y parallel trails are also abandoned, 

consequently, the process repeats itself, resulting in an ever widening trail." (Alstrand ct al, 1988) (Emphasis added). 

In 1988, it was determined that ATV use originating in the community of Anaktuvuk Pass extended eastward to the 

headwaters of the Anaktuvuk River and west\Yard into the drainage of Chandler Lake, a lateral distance of roughly fifty 

miles. Trails also stretched south\:vard dmvn the John River Valley for approximately twenty miles. Secondary trails 

radiated from these primary routes entering into side valleys and ascending lowl-'f mountain slopes. Additionally, A TV 

trails run both cast and west along the north face of the Brooks Range. [tis. likely that this trail system has significantly 

expanded since 1988. 

ATV Access Potential: The eastem region of the Gates has the potential for access incursions emanating from the 

Dalton Highway, On-going oil dcYelopment on the North Slope may eventually link coastal communities to the road 

system. If this were to happen, it may L:ncourage residents to transport ATVs via the highway to the foothills of the 

Brooks Range to hunt Dall sheep, caribou, and other wildlife. 

In the past, ATV users from the commLmities of Wiseman and Nolan entered the eastern boundary of the park into the 

Glacier River Valley. Based on interviews wilh park representatives, this use has declined in recent years. 

The upper Noatak River Valley within the Gates has the potential to experience ATV uses originating from 

communities along the upper Kobuk River and the Kotzebue Sound region, A lmY, relatively gentle pass north of the 

community of Ambler on the Redstone River allows easy snm:vmachine travel into the upper Noatak Valley. As A TV 

technology e'•.rolves and residents expand their use area, this route could eventually funnel A TV users into the upper 

Noatak. 

During periods of moderately high water, the Noatak is naYigable from its mouth by shallow draft outboard motorboats 

up to the boundary of Gates of the Arctic. Jet pmvered boats can easily ascend the river well beyond this point. Were 

such crafts to carry light\veight ATVs, the entire watershed of the upper Noatak River would be open to ATV travel. 

Relatively untouched wildlife populations, including Dall sheep, moose, and brO\lv"n bears, make this an attractive region 

for A TV home huntt...>rs. 

Yukon-Charlev Rivers National Preserve 

ATV Use History: Prior to the 1980s, most off-road vehicle travel within the general region of Yukon ~Charley RiYcrs 

National Preserve was associated \Vith mineral prospecting and mining operations. Cnnent usc is primarily related to 

fishing and hunting aetivitics. In 1991, one resident had a pcnnit to operate an ATV in support of fish camp operations. 

It is unknmvn \\"hat authority was used to issue this pennit. 

Personal ATV use was virtually non-existent in Yukon Chm·Icy prior to 1985. After that time, access increased 

markedly. By the early '90s, it \Vas not uncommon to see riverboats carr~ying one or t\Yo ATV traveling into the 

preserve. Most use originates in the villages of Eagle, Eagle Village and Circle. ATVs are ofT-loaded onto river bars, 

banks and dry sloughs to access nearby lowlands. Residents ferry ATVs to U1c Coal Creek landing and drive inland 

along the local mining road. In 1991. park personnel reported increasing A TV incursions and considered off-road 

vehicle access a serious concem 

29 
466 

30 

Northwc~t Alaska Areas 

T'our national park units comprise the Northwest Alaska Areas: Kohuk Valley National Park, Cape Krusenstem 

National Monument, Noatak National Prescnrc and Bering Land Bridge National Preserve. Totaling over eleven 

million acres, these parks arc a representative cross section of America's arctic wildlands. They encompass expansive 

sweeps of open tundra, sparsely forested ri\'er ·valleys, windswept coastlines, wide i1oodplains, long donnant lava 

t1m:vs, lmv mountains and broad valleys with major rivers twisting their \:vay to the Chukchi Sea. 

Cape Kmscnstem National Monument 

Cape Krusenstcm National Monument consists of a series of low hcach ridges fronting the Chukchi Sea and hacked hy 

gentle rolling tundra hills. Shall mY lagoons and marshlands are found just inland of the beach ridges. Cape 

Kmsenstcm Nr\.1 is best known for ancient archeological sites scattered along the beach ridges. These chronicle some 

of the earlie:;t human settlements ofnorthwcst Alaska. The monument hosts migratory birds, musk ox, caribou, wolves. 

wolverine and a small population of DaB sheep. 

Private -inholdings in the f01m of individual Native allotments and Native corporation lands fringe the :;outhcn1 

coastline of the monument. Landowners arc accorded reasonable access across monument lands to their properties so 

long as the use does not impair the resources and character of the monument. ANILCA also proYides special access 

privileges for commercial fishing operations. A gravel road crosses the northern tip of the monument connecting the 

Red Dog open pit mine with a coastal pier for loading ore onto sea-going barges. These encumbrances complicate 

access management within the monument. 

The wrik'T \Yas a member of the stati of Northwest Alaska Areas from 1984 through 1987. At the time. it \vas 

determined that ATV incursions and impacts \Verc occmTing along the entire coastal length of Cape Krusenstem 

National Monument. Secondary' trails branched off from the primary coastal trail ascending the nearby highlands. The 

area of most intense ATV use took place along a 25-mile long section of coastal lands betvYcen the commercial fish 

camp of Shcshalik at the southeastem tip of the monument and Cape Kmsenstcm proper. A second heavily used trail 

extended bet\\ecn the community of Kivalina and the Red Dog Road in the north em section of the monument. A TV 

drivers used the road to gain access to nearby foothills 

Technically, travel above the beach line must be for the purpose of accessing private inholdings or in suppmi of 

commercial fishing operations. Overland travel requires that the Park Sen.'icc designate access routes. No such 

designations have been made. Other ATV travel on federally mvncd parklands violates NPS regulations and policy. 

The Park Sen'ice docs not actively enforce these restrictions. 

ATV uses threaten fragile natural resources in Cape Kruscnstcrn National Monument. Loss of insulating vegetation and 

topsoil exposes underlying pennafrost to thavving and subsidence. Surface scaning remains 'irisible for centuries. 

Wildlife hahitat is adversely affected. 

Archeological sites within the monument occur at or very· ncar the surface. ATVs crossing beach dunes cut into these 

sites chuming and scattering artifacts destroying the original cultmal context. Pothunters arc attracted to exposed 

archeological sites mining them for collectable artifacts. Some miifacts find their way into the commercial market. 

"The Zinck study of Tangle Lakes off-road vehicle impacts on archeological sites ... concluded that established olTroad vehicle (ORV) trails had affected archeological sites in the m-ea. Primary or direct disturbances included the 

destruction of vegetation, increased potential for erosion, exposure of archeological materials to breakage and 

displacement, and loss of archeological context." ft was also found that the lcaknge of hydrocarbon fuels contaminated 

sites, making it di!Iicult to ohtain accurate C 14 dating. (Aistrand et al, 1974). 

ln J~muary 200 I, park management acknowledged that some ATV access does occur along the beach region of ihe park 

with occasional incursions inland via the Red Dog mine road. llowever, these uses were characterized as relatively 

infrequent and not resulting in significant resource impact. Commercial fishing and related ATV access has declined in 

recent years due to suppressed fish prices. Such use is likely to rebound when fish prices increase, Based on past 

obscn"ations, it would seem a more thorough survey of curr~nt i\TV access is vvarranted. 

30 
467 

31 

Noatak National Preserve: 

The Noatak National Pre~crvc and the western section of the Gates of the Arctic National Park encompass all hut the 

lovvcr watershed of one of the nation's premier \vild and scenic rivers. ANILCA directs, ''The preserve shall be 

managed ... (t)o maintain the environmental integrity of the Noatak River and adjacent uplands within the preserve in 

such a manner as to assure the continuation of geological and biological processes unimpaired bv adverse human 

activity; to protect habitat for, and populations of, fish and wildlife ... "(Emphasis added). 

The Noatak Valley is generally broad. Except for thinly forested lowlands at the western extremity of the preserve, the 

cover is lovY tundra vegetation Fringing mountain slope:-; are rclativdy gentle. The Noatak River courses through a 

maze of wide. flat gravel bars. These me ideal conditions for ATV travel. 

In the late 1980s, ATV use penetrated into the preserve along the Kelly River and the lovver Nimiuktuk River. 

Residents from the communities of Noatak and Kotzebue began fen~ving ATVs via shallow draft riverboats up the 

Noatak River for fall hunting of moose, dall sheep aml cmibou. 

In recent years tlat~bottomed aluminum boats driven by water jet motors have gained popularity in northwest Alaska. 

These craft are able to navigate wah ... 'TS less than a foot in dcpth opening up areas much too shallm.v for conventional 

prop driven outboard motors. Jd boats offer an efficient means or ferry·ing compact ATVs along the length of the 

Noatak from the mouth of the river into the westem boundar;-· of the Gates of the Arctic National Park. 

In Janumy of 2001, park management expressed the opinion that ATV usc \Yithin the preserve was relatively infrequent 

and does not pose an immediate concern. It \Vas felt that indications of scattered use do not constitute significant 

resource concerns. There was no indication that the park is addressing these incursions. 

Kobuk Valley National Park: 

Setting: Kobuk Vallev National Park embraces the broad yalley and adjacent uplands of the middle Kobuk River. It 

features large sand dunes, expanses of mixed boreal forest and open tundra grasslands, low land marshes and relatively 

gentle mountains to the nmih and south. The park is a major route for the semiannual migration of the western arctic 

caribou herd. A portion of this herd \Vinters within the park. Moose are plentiful along with a variety of furbearers and 

seasonal migratory birds. Onion Portage on the eastern border of the park contains a major complex of archeological 

sites including some of the earliest human habitation sites in north\\·est Alaska 

The park is used for subsistence hunting and fishing by five Inupiaq communities, including the city of Kotzebue. Use 

is particularly heavy liming the early fall when huntc:rs from throughout the region converge on the rniUUk Kobuk 

River to harvest cmibou as they stream southward in the thousands. Less intense use takes place during the summer 

months when local residents establish fish camps along the river \Vithin the park. 

A designated RS 2477 \\'inter trail traverses the park from \Yest to east. It is part of a 200-milc-long \\-inter trail 

easement connecting the coastal community of Kotzebue with upper Kobuk Ri,·cr communities. This 25 foot -wide 

right-of-way roughly parallels the north bank of the Kobuk. The cascment pem1its the use of small ATVs under :WOO 

pounds gross vehicle v,·eight. Winter usc of ATVs on the trail is relatively infrequent. A second 50-foot \\-'ide RS 2477 

trail connects a jade mining claim in the north em mountains to a barge-landing site on the Kobuk RiYer. Both large and 

small ATVs may usc this route during winter months. Summer use is restricted to small ATVs ofless than 3000 

pounds gross \'chicle \Ycight. 

Park GMP: The Kobuk Valley General Management Plan states, "(T)hc use of olT-road Yehicles, other than 

snowmachines, is generally prohibited ... The recreational usc of A TVs off established roads, parking areas, or other 

designated routes is prohibited. Section 1110(a) or ANILCA provides for the: usc of snov.'machines, but not for ORVs 

other than snowmachines .... An exception to the general prohibition on the use of ATVs is access to inholdings 

allm\ed under section 1110 ofANILCA. Access is guaranteed to nonfederalland, subsurface tights, and YaliU mining 

claims, but such access is subject to reasonable regulations to protect the values of the public lands crossed .... The usc 

of ORVs for access to inholdings mav be allowed under 43 CFR 36.10 bv the superintendent on a case-bv-ca::~e basis on 

dc:signatcd routes." The GMP further states, ''The usc of OH. Vs for subsistence is not allmvcd because the usc: has not 

been shown to be a traditional means of access" (Emphasis added) Other than the two designated RS2477 rights-of31 
468 

32 

\\-ay, no other ATV trails or routes have hcen designated \Vithin Kobuk Valley National Park Regarding access to 

private inholdings, the great majority of such properties arc located along the hanks or the Kobuk River and arc easily 

accessible by boat during the summers and snm\mobiles during the winter months. 

Current uses: ATVs do entcr the park during the summer and fall for hunting and other pUJ1_1oscs. Drivers do not 

confine their travels within the designated 25-foot vddth of the RS 24 77 trail frequently branching off into adjacent 

parklands. A TV s are fciYicd into the park ':ia riverboat for hunting and other activities. Park management considers 

these incursions to be infrequent and a minor resource cone em. 

Bering Land Bridge National Preserve: 

Of all the national park units in Alaska, the Bering Land Bridge is probably the most complex in tetms of access 

management. The Se\Yard Peninsula has a long history of mining operations, including the mmrement of heav:y 

equipment overland to mineral claim sites. Mining declined eluting the 1940s, resulting in the abandonment of many 

mining st.::ttlemcnts and operation~- Some mining continues, although far belm:v hi~toric levels. 

Limited reindeer grazing occurs \Yithin Dering Land Bridge National Preserve. ANILCA proYides for this activity 

subject to reasonable regulations_ This includes the usc of motorized vehicles. In 1991, park management reported 

only limited use ofATVs in support of reindeer herding_ 

ANTLCA allO\vs for recreational access to the Serpentine Hot Springs area, although it does not specify~ A TV access. 

l7(b) casements across parklands provide for \\"inter access over a 50-foot-\\·'ide route paralleling the Pinnel River to 

public lands and three 25-foot-wide trails from the village of Shishmaref to nearby public lands. These routes are open 

to two-and-three \rhecl vehicles and other small J\ TVs. A 100-foot-widc winter access route connect-. the Yillage of 

Deering with the Taylor HighvYay. All of the above are closed to overland ATV use during months of thaw. 

Numerous private inholdings, mineral claims and state lands arc scattered in and around Bering Land Bridge National 

Presen·e. According to the preserve G:MP, these lands may be accessed via designated routes. '<The use of ORVs for 

access to inholdings will only be allowed upon a finding that other customary and traditional methods of access \Vill not 

provide adequate and feasible access. All ORV use will he subiect to applicable state and federallm,:s and to permits 

and restrictions where necessaD' to prevent resource damal!e.'· (Bering Land Bridge National Preserve General 

Management Plan) (Emphasis added). 

In the Bering Land Bridge GMP, the National Park Service made a fmmal finding that ATVs arc not a customary and 

traditional means of subsistence accc;;;s. The nse of ATVs on parklands for hunting, trapping, fishing and gathering 

violates federal regulations. 

In 1991, a Park Service study detennined that A TVs \Vcrc enteting onto parklands from coastal beaches. J\ TVs were 

also being transported by truck from Nome and other communities to departure points along the Taylor Highv,.'ay. 

These A TVs were used for hunting in the preserve_ J\t the time, park staff considered J\ TVs to pose a significant 

management issue and felt that use \:vas likely to increase. Park personnel expressed reservations about actively 

enforcing the ban on ATV access due to political sensitivities and the likelihood of minimal agency support. 

In January of 200 I, park management con finned that ATV use continues in the preserve. However, management 

assured the vvriter that ATV usc is relatively light and not a significant resource issue_ This apparent discn. .. '"J)ancy 

het\veen reported uses and concerns bet\veen 1991 and 2000 would seem to \VaiTant further clarification. 

Aniakchak National Monument and Presen.'e 

Aniakchak NM&P is one of the most isolated national park units in the U.S. The park's most prominent feature is a 

large volcanic caldera. The lands around the caldera consist of thlnly vegetated ash fields. Thick growths of Y\-illmvs 

and alders occur in nmTow bands alongside streams_ Jn addition to volcanic features, Aniakchak hosts an impressive 

anay of mega fatma~ including coastal brovvn bears, trophy size moose and caribou. 

The Aniakchak GMP states, '-Current access to and ·within Aniakchak is by aircraft, snowmachine, "\Vatercraft, tracked 

vehicle, and foot. ... Some of these access methods have the potential for causing resource damage. Because of this 

32 
469 

33 

the National Park Service will take variou~ stt.::ps to manage access in a manner consistent with the puqx)ses of the unit 

and other laws and regulations.'· The GMP goes on to say that Sec. Ill O(a) of ANILCA does not provide for A TV 

access and that ATVs are not considered to be a customan.' and traditional means of subsistence access. "The usc of 

ATVs. for access to inholdings vvill only he allowed upon a finding that other customary and traditional methods of 

access \:rill not proYide adequate and feasible access.'' (Aniakchak National Monument and Preserve General 

Management Plan). 

A TVs are ofT-loaded from commercial fishing boats onto the shores of Aniakchak NM&P and employed in the pursuit 

of wildlife. Users drive overland from the communit~y of Port Heiden into nmihem section of the park. ATVs have 

been observed parked next to rixed commercial hunting guide camps within the preserve. 

The Other Parks: A TV use in smaller or particularly rugged park units tends to he kss extensive than in the larger 

national pru·ks in Alaska. However, some use does take place. Kenai Fiords National Park at the southern tip of the 

Kenai Peninsula is largely protected rrom extensive A TV due to its steep and rugged terrain. l Io\vevcr, A TV incursions 

have occuncd in the vicinity of Exit Glacier and limited use has been ohsen'ed in aml arounU private inholdings along 

the park coastline. Sitka National IIistoric Park is a small urban park in southeast Alaska. Small ATVs have entered 

the park, hut their usc has heen infrequent posing minor resource concerns. 

Klondike Gold Rush National Ilistoric Park includes the historic area ofDYea. This is a rclatiYcly level expanse oftidal 

marshes and open forest. It is connected hy road to the community of Skag·way. The land is cooperatively managed by 

the State of Alaska aml the National Park Service. In 1991. it was reported that local residents of Skagway were driving 

personal A TV s into the Dyea flats resulting in a maze of worn trails and potentially threatening fragile historic sites and 

resources. 

NPS Ala~ka Regional Office: The National Park Service i~, b~' tradition, a decentralized agency with subst~mtial 

management authority delegated to individual park superintcnUcnts. This is in keeping with the fact that most units of 

the National Park System outside of Alaska are the products of separate acts of Congress or presidential proclamation. 

Prior to ANILCA, a national park usually came into existence \Yith its own unique enabling legislation setting forth 

special exceptions to the basic standards of the NPS Organic Act. 

ANILCA presented the National Park Serdce with major ne\Y challenges. In addition to more than doubling the total 

size of the National Park System, the act set forth hroad mandates with universal application to millions of acres of ne\v 

parklands. This is particularly true in regard to subsistence and access. This multi~park applicability argues for a 

degree of coordination and uniformity of management between parks exceeding historic NPS operating practices. The 

task of assuring continuity bct\\'een parks is logically the responsibility of the NPS Alaska Regional Office. 

In 1984, the National Park Service estahlisheU a special Subsistence Division within the Alaska Regional Office. The 

PlliT!OSe of this division \Yas to orient new park personnel as to the complexities of subsistence management, coordinate 

park subsistence resource advisor~y councils, assist in the promulgation of special ANILCA -related regulations and 

advise park managers and senior leYel regional otTicials as to unique issues \Vith regionwidc applicability. While the 

di\·ision served primaril~v in an advisory capacity_ its oversight rok encouraged consistency between the parks in the 

inte111retation and implementation of ANJI.CA. 

In 1994, the Park Sen·ice disbanded the Subsistence DiYision and reverted to a more traditional decentralized park 

operation. Although the regional office continued to provide limited ANJLCA-related assistance to the parks, regional 

oversight and coordination of subsistence and access management largely ceased. 

Even prior to dissolving the Subsistence Division, the Park Service in Alaska displayed little enthusiasm for 

coordinating access management between individual parks. Managers were expected to become familiar with the 

provisions of ANILCA and to translate them on a park-hy-park basis. While this approach encouraged a degree of 

tlexibility, it resulted in differing and sometimes conflicting interpretations and application of lmvs, regulations and 

policies. 

Absent regional coordination and guidance, indiYidual park managers are hesitant to unilaterally tackle the highly 

sensitive and potentiall:y volatile issue of A TV access. To do so could stir resentment by ATV users, particularly local 

33 
470 

34 

residents, and attract negatiYe political attention at the local, state and Congressional Delegation levels. Potential career 

implications are daunting. 

During an intervie\:V with senior NPS Alaska Regional officials, the writer was infonnecl that the oversight and 

coordination role of the: regional office has diminishc:d markedly since: the: mid 1990s, follmving a scrvicewidc: 

reorganization. Individual park operations nmv have primary responsibility for determining management direction and 

issue resolution. The regional office fLmctions pri.maril:· in a support capacity for park projects and programs. There is 

no regional program for tracking access issues, although regional office specialists do assist in trail mitigation and 

research. While statewide ATV use has increased sif.,rnificantly, the interview participants felt that usc in the parks has 

probably not expanded over the past ten years. They offered no basis for this assumption. There is no clear 

comprehensive Yiew of A TV access at the rcgionallevcL 

Regional officials cited Denali National Park an example of A TV management at the park leveL Park management 

informally designated a subsistence A TV route into the park from the community of Cantwell with the stipulation that 

users remain on the trail. When questioned as to lhe proceJurc followed in making this designation, including public 

participation, the regional respondents \\'ere unclear as to how it had been accompllshed. No special regulations were 

promulgated. The park General Management Plan specifically states ATV usc is not a traditional means of subsistence 

access. A change in this determination wanants a formal GMP amendment process, including public involvement. 

\Vhen this \\'aS pointed out, the informants seemed uncertain as to the need for a fonnal process. 

According to available infonnation, Denali National Park unilaterally took an informal action to permit a potentially 

adverse use ofparklands. This action is contrmy to applicable la-ws, regulations, policies and agency planning 

procedures. The \VTiter later visiteJ the Cantv .cell trail and discoYered that usc was indeed having a significant impact 

on surface resources, and users \Vere not confining their travels to a single track. 

Regional office intcP:icv• participants expressed the opinion that access regulations promulgated in 1986 for Alaska 

parks arc not in keeping \Yith the intent of title XI of ANTLCA, increasing management difficulty-·. It was suggested 

there is a need for the conservation community to work with the NPS to develop a coherent strategy for the 

management of ATVs. One participant expressed the concem that there is no unifonn system for dealing with ATV 

issues resulting in differing and conflicting approaches het\veen park units. This contributes to inefficiency in overall 

management It is clear that the NPS i\.laska Regional OiTice plays a minimal role in coordinating access management 

between park units. 

BUREAU OF LAND MANAGEMENT 

The BLM is generally considered the federal land managing agency most oriented to multiple and relatively liberal use 

of federal lands. Although goven1ed by EO 11644, access regulations and management are typicall:· less restrictive 

than those on lands managed hy the National Park Scryice or the Fish and Wildlife S~.::rvicc. 

Southwestem Alaska 

With the exception of a small block of land surrounding the 13LM office complex in Anchorage, all BLM lands in 

southwestern Alaska are open to the use of all-terrain vehicles. The Alaska oiTicc of the BLM is awaiting the 

completion of a national Off-Highway Vehicle Management Plan to set guidelines for local ATV management. This 

plan \\-ill allO\v for regional variations based on law and unique regional circumstances. Although the BLM has the 

authority.· to close lands to ATV access if damage is taking place, no such closures have been imposed in southwestem 

Alaska. 

When asked if A TV use is damaging BLM lands in southwc:stern Alaska, an agency representative responded by saying 

that it is difficult to define "damage." The official initially expressed the belief that ATV use is relatively light, because 

the area is not connected to the state highway system. He was unable to provide information regarding ATV access 

originating in mral villages, although he acknowledged that such use occurs. The agency does not actively monitor 

ATV access nor enforce ATV restrictions in the district. There is no ciTort to coordinate ATV management "\Vith other 

land managing agencies. 

34 
471 

35 

The BLM representative di:.;;cusscd the practice of light, compact ATVs being transported in single engine aircraft to 

remote airstrips in south"'vestem Alaska. These machines are off~ loaded and used in hunting operations. Landing strips 

suitable for 13eaYer t~ype aircraft have \Vehs of ATV trails radiating o!T into the surrounding countryside. Jet boat traffic 

is also on the increase in rural south central Alaska. On reflection, the BLM infonnant acknowledged ATV use is 

definitely expand:ing due to rapid improvements in the technology and an increasing user population. 

Glenallen District 

The Glenallen District Office oversees the management ofBLM lands in south central Alaska. The district extends east 

of the George Parks Highway to the Canadian border and south of the Alaska Range to the Gulf of Alaska. It 

encompasses some of the most spectacular and popular recreational lands in the state. 

The Denali IIigh\\'ay on the north and the Glenn Highway on the south provide ready access to some of Alaska's most 

attractive public lands. Well oYer half the population of Alaska is \vithin a comfortable day's drive of the region. 

Rugged, glacier-clad mountain ranges arc separated by hroad expanses oflow rolling hills, hroad valleys and open 

tundra plains. The region attracts cross-country skiers and snowmobilers during winter months and hikers, boaters and 

off-road \'ehicle enthusiasts in the summer and fall. The greatest ATV us('; takes place in the fall in conjunction with the 

sport hunting of moose and caribou. A TVs are also used in spmi and subsistence fishing dforts. 

The writer intervie\:ved three senior employees in the BLM Glenallen OiTice. The participants confitmcd that ATV usc 

in the region has increased substantially since the early 1980s. Prior to this time, most off'-road vehicles consisted of a 

relatively few large, four-wheel drive tntcks on OYCrsized tires, Weasels, Nodvl'clls and other si7eablc vehicles. It \Vas 

not until the advent of 4-wheclers and Argo-type machines in the 1980s that off-road vehicle use virtually' exploded. 

A TV use continues to expand rapidly. 

The majority of ATV users of the Glenallen District hail from the submban complexes of Anchorage and Fairbanks. 

Local residents make up a relatively small hut active fraction of the total user group. Non-Natives comprise the great 

hulk of ATV users. Most Natives tend to hunt and fish in the mcas around their communities, whereas non-Natives m·e 

more inclined to travel longer distances to engage in A TV -related adiYities. 

The BLM places no restrictions on access to private holdings. Tf a landowner makes frequent use of a gin~n route, he 

may be requested to obtain a designated route pennit. Approximately half a dozen commercial lodges located on leased 

BLM lands utilize ATVs in suppmt of their operations. Mining access consists principally of the movement of heavy 

equipment overland to mineral claims. Mining rdated access is minor in comparison with recreational A TV use. Local 

businesses novY rent all-tenain vehicles to visitors wishing to recreate in the general region. 

The heaviest A TV traffic occurs during a 45-day period in association with spott and subsistence hunting. The Alaska 

Department of Fish m1d Game issues special sub:-;istence hunting permits, referred to as Tier II hunts, for caribou 

harvest. An estimated 8000 Tier li hunters access BLM lands in the Glenallen District An additional 2580 federal 

hunting pctmits \Vcre issued for the Delta area in the year 2000. At least 95% of hunters usc A TVs in their hunts. 

Particularly heavy ATV usc takes place in the Alphabet Hills south of the Denali Highway and in the Talkedna 

Mountains off the Richard::;;on Highway. There arc countless trailhcads along the local road system. Particularly 

heavily used trailheads are found ncar the Eureka Lodge, Chistochina. Butte Lake, Jack Lake m1d Little Delta. 

The practice of combining heavy and light ATVs is a frequently used travel strategy in the Delta Region. Large ATVs, 

such as tracked Weasels or modified heav~y military' surplus tn1cks, pioneer trails through particularly thick hrush. Once 

the larger machines hreak open a new route, smaller A TVs are ahle to access and exploit lands previously not impacted 

by A TV usc. The writer found this same pattern common along both the Denali and Glenn Highways. 

The only restrictions placed on A TV access in the region occur in the Tangle Lake Archeological District along the 

Denali Highway. The BLM designated and marked ATVtrails tlu·ough locations ofknmvn or suspected archeological 

site concentrations. These restrictions arc removed vvhen it is dctem1ined that an area is relatively clear of cultural 

remains 

The BLM infom1ants \Vere not aYvare of agency-sponsored research into A TV access environmental impacts. Closures 

in response to environmental damage arc rarely if ever imposed. At the time of the \Vritt::r's visit, the Glenallen District 

35 
472 

36 

Office did not haYe a law-enforcement employee on staff. Active enforcement or ATV access regulations is minimal to 

nonexistent Other than infrequent surve:y s of trail conditions along the road conidors and a few streams, there is no 

systematic ATV access-monitoring program. 

The writer visited scvt-'fal sites of intense ATV activity along the Denali and Gknn Highways. This included camping 

and talking with ATV USL'TS, \·\ alking trails and recording impacts. I lighvvay \"Chicles transporting off-road vehicles 

were common sights on the road. Vehicles ranging from small pickup trucks to freight size tractor trailers towed or 

can·ied 4-and-6 wheel ATVs, Argos, military surplus Weasels, Cushmans and custom-built 4-\Yht..'Cl driYe trucks with 

huge tires. RVs, pickup trucks and Yans crowded gravel pit pullouts along the side of the road. Parties of' camout1agcclad hunters mounted on ATVs traveled at high speeds along the shoulder of the highway. ConH>ys of ATVs \\"ere 

observed winding their way 

cross-~..:ountry In many 

the scene \Vas reminise0nt 

large-scale mechanized 

military· operation. 

ATV users told the writer of 

traveling in excess or twenty.· 

miles off the Denali llighway 

to reach hunting areas. 

Machines were equipped \Vith 

global positioning systems and 

two-way radios. Treks usually 

involved several mnchines 

traveling in a convoy, often 

accomptmicd by one or two 

large tracked or \Yhceled 

vehicles. Many users 

established base camps at 

remote sites well in udvnnce of 

the hunting season. 

Some A TV users opt to stay in commerciallod 

markets, tavcms and restaurants, contributing thf.-c-rrrrorr;ccrmrrmv---------------' 

ATV trails radiate from either side of the Denali 1lighway, crisscrossing as they extend into the surrounding 

countryside. On many' drier knolls and ridges the vegetation and topsoil have been wom away, exposing mineral soil 

and initiating erosion. Where trails traverse permafrost and wetland tcnain, glistening dark scars contrast starkly with 

the natural green and mst colors of the tundra~ Trails crossing \Netlands are often in excess of thirty feet \Vide. Heavy 

rutting is common. These conditions substantially exceed the standm·ds set forth in EO 11644 and applicable federal 

regulations. 

Conditions nlong 

sections of the Glenn 

lligh\:\,;ay minor those of 

the Denali Highway 

although thicker 

vegetation and more 

topographical relief 

partially conceal the full 

extent of ATV impacts. 

Use is particularly hea'i'Y 

in the highlands and 

foothills !iinging the 

eastern slopes of the 

Talkeetna Mountains. 
473 

37 

As \\-ith the Denali High\Yay, hunting season sees a large volume of ATV -related traffic, particularly on weekends and 

holidays. Pullout areas arc populated with motor homes, vans, SUV s and pickup trucks. ATV s of various sizes and 

types depart the roadside sites in the early rooming, coming and going throughout the day. Some drivers retum to the 

parking areas in the eYcnings, while others remain in the field at remote camps. 

Trails are so masticated and waterlogged in spots as to be virtually impassible by all hut the largest vehicles. Users of 

smaller ATV s must drive o£1' the sides of the trails in search of finner ground. This further spreads the impact. Large 

ATVs \Vcre obsenred sinking t\VO feet or more into trail bogs. An Alaska Fish and Game enforcement officer related 

driving her ATV roughly forty miles to the north with no end to the trail in sight. She described a latticc\vork of side 

trails branching off from main routes. 

The above conditions far exceed the most liberal interpretation of access la\vs and regulations. The on~going loss of 

environmental integrity can only be described as extreme. 

White Mountains National Recreational Area (WMNRA) 

The White Mountain NRA consists of approximately one million acres of mixed boreal forests and alpine tundra spread 

across a system oflow mountains and rolling foothills. The southwcstem boundary of the NRA is approximately 35 

miles northeast of Fairbanks. The Elliot High\vay skirts the western boundary of the NRA, and the: Steese Highvvay 

parallels its southern boundary. Both of these roads dra\v heavy usc from F airhanks and satellite communities. The 

NRA 's castem boundary abuts the Steese National Conservation Area. Hunting, trapping, fishing, camping, ATV 

driving, snovvmobiling and cross-country skiing are popular activities in the WMNRA. 

In 1986, the BLM puhlished a Record of Decision Resource Management Plan (RMP) for the White Mt. NRA. In part 

this doc:ument establishes basic guidelines for the management of off-road vehicles. lt sets forth ATV \Vcighllimits, 

guidelines for access to mineral claims and private inholdings and a program outline for monitoring uses and impacts. 

The RMP also establishes parameters for rc:;tricting A TV access based on enYironmental concern;.;. As an addendum to 

the RMP, the BLM published an Off! !ighwav Vehicle Monitoring Plan for the WMNRA. The plan sets fmth four 

main objectives: (1) document existing trails known to receive OHV usc, (2) dcYelop a methodology that, \Vhen 

implemented, \vill document trail conditions and new disturbances caused by OHVs, (3) establish a threshold as to 

\\·hen impacts are excessive, and (4) provide procedures for monitoring rccoveiJ· when implementing rehabilitation 

projects, closures and restrictions. 

The White Mountain NRA is divided into access management zones. The foothills along the wcstem and southern 

segments of the NRA are open vear-round to ATVs not exceeding 1500 pounds. The highlands, making up roughly 

50% of the NRA are closed to summer ATV use. The Beaver Creek National Wild and S<.:enic River conidor is also 

clo:.cd to summer use of A TVs. Three re]ati·vcly small segments of the NRA are closed year-round to all mechanical 

vehicle travel. The agency distributes to the general public and unit users maps and handouts of rules goveming ATV 

use in the WMNRA 

The BLM has constmcted or designated hundreds of miles of winter snm\·machine trails and a smaller number of ATV 

trails for summer usc \Vi thin the NRA. This development involved the use of a D-4 Cat and backhoe to construct 

drainage trenches, and runoff controls. These improvements are designed to encourage ATV users to remain on the 

established trails, although they arc not required to comply. 

Area Manager Lon Kelly described the NRA management philosoph\· as "people on the ground." I !e spoke of NRA 

employees a::; a team suppmiing one another in managing access, pnwiding visitor services and protecting the resources 

and values of the unit. Evcr~y employee practice~ outreach to notify visitors of access rules and concerns. The NRA has 

a single lav.- enforcement ranger. This ranger issues citations for A TV -related violations, pa1iicularly for incursions into 

closed areas. The \\Titer had the opportunity to meet this ranger during a law enforcement patrol. Mr. Kelly spoke VYith 

obviou~ pride about the efforts of the staff to manage acces~. He said that there is a need for improved methods of trail 

construction and maintenance that reduce environmental impacts. 

The writer Yisitcd the White Mountain NRA and hiked a portion of the Quartz Creek Trail. The trail begins in the 

upper reaches of Nome Creek where it ascends a long, relatively gentle slope. It then crosses alpine tundra highlands 

37 
474 

38 

before descending into Quartz Creek, an upper trihutar~y of Beaver Creek The lands to the east of this trail are closed to 

summer A TV usc. 

The initial t \:1,'0 miles of Qumi~. Crc~k Trail arc relatively vvcll constructed with hales of hay placed in drainage ditches 

to control nmotT Despite these efforts, steeper sections of the trail suiTcr from erosion. Soil loss along more hcaYily 

eroded sections of the trail is in excess or eighteen inches in depth '~"ith trail \\-idth ranging from six to nine fed. Trail 

braiding occurs along the upper slopes \Yherc drivers detour around \\-ashouts. Conditions deteriorate as the trail 

crosses the rolling uplands, due primarily to increased soil moisture. Trail \Yidth here tweragcs ten~to-12 feet. 

Mitig:ation through channding of mdting permafrost and some shoring with rocks has had mixed results. Numerous 

side trails branch off to the west to ascend nearby knolls or descend into the valley helmv. Some illegal access was 

e·vident to the west of the trail, 

although impacts are relatively light. 

Strategically placed signs identify 

lands closed to ATV accc;:;s. 

The writer's overall impression of 

ATV access management by the White 

Mountains National Recreational Area 

\\·as generally positive, although 

serious impact is taking place. 

Management has identified sections of 

the unit pariicularly vulnerable to 

A TV impact, including hi~hlv 

sensitive natural areas. Basic planning 

early in the history or the unit 

established reasonable access 

management goals and procedures. 

The WMNRA is logically divided into 

access management zones. The staff 

appears to have a positive rapport with 

the /\TV user community. There is an acti\'c enforcement program in place. Trails arc planned and constmctcd to 

discourage the pioneering of new routes. ft should be noted, hm~·evcr, that user compliance is mixed. 

Dalton I Iigh\VHV Corridor 

The BLM and the State of Alaska cooperatively manage a corridor of federal lands along: the northem section of the 

Trans Alaska Pipdine. The corridor provides a secure route for the pipeline preventing conflicting uses and 

developments< 

The BLM generally defers to the state in access management. Although the state has passed legislation go\'eming ATV 

access, it has not promulgated regulations to implement thl.': !mY. Recreational ATV access is not permitted. However, 

local residents in such conununities as Coldfoot and \Viseman arc not subject to this exclusion. These residents may 

travel Yia A TV and usc fircanns for hunting within the corridor. An~: person, n::gardless of residency, engaging in 

trapping rna~- usc ATV;:;, as trapping is defined as a pemritted commercial activity. 

38 
475 

39 

Airboats are permitted \vithin the corridor. Persons transport airboats from as far south as the Matanuska Valley to the 

headwaters of the Kunuti River and the upper Middle Fork of the Koyukuk River These crafts arc latmehcd into 

shallow streams to cany out moose hunting. Airboat users cross into the K tmuti Wildlife Refuge, \Vhcrc they compete 

with local NatiYc residents for available game. The noisy, high profile passage of an airboat can drive sensitiYe vvildlifc 

away from the edges of the river and interfere with mating and migratory patterns. 

It is likely that oil exploration and development Yvithin NPR..i\. will eventually result in an all-weather road connection 

bet\\cen !he Dalton Highway and the Colville River and possibly further west. If !his occurs, it should be anticipated 

that local residents \Vill take advantage of the road to transport .i\.TVs to arl!as along the Dalton High\vay, including the 

Brooks Range, for the purpose of hunting. It is also likely that persons living outside the region will wish to bring jet 

boats, airboats and light ATVs into the North Slope to access the Colville River drainage and other puhlic lands 

National Petroleum RescrYe Alaska (NPRA) 

The NPRA extends from the Colville RiYer westvmrd to the Arctic Ocean and from Point Barrmv in the north to the 

north slopes of the Brooks Range in the south. It embraces ;';Orne of North America's most critical summer habitat [or 

migratory birds, some of which lraYcl thousands of miles to nest and rear their young. The western section of the 

reserve includes the calving grounds for a large percentage of the yvestem arctic caribou herd. Predominately a massive 

\Yetland, NPRA waters arc important habitat for a Yariety of marine life. Ancient archeological sites arc scattered along 

the ocean shoreline, major slrcams, and uplands. Whilt.! NPR.i\. is not as picturesque as the Arctic National Wildlife 

Refuge, it is equally imporiant as wildlife habitat. 

The \Vriler interviewed HLM o1Tieials based in Fairbanks n~garding the management of .!\TV access on NPR.i\. but 

ohtained little specific inforn1ation. BLM's primary focus in access management is the use of relatively large vehicles 

in oil and mineral exploration. There is apparently no concerted effort to track the use and impacts of priYatcly used 

all-tenain vehicles. The writer received vague responses to questions regarding .!\TV usc pattems on BLM lands by 

local communities. Agency infcnmants did agree that individual .!\TV use was probably increasing, but they seemed to 

consider it a relatiYely lcnv management priority. 

39 
476 

40 

An Argo dealer in Anchorngc told of doing hrisk sales of Argo ATVs to North Slope residents. ATVs arc also retailed 

locally at the village level. Air and jet powered boats are increasingly common on the shallmv waterways of the NorU1 

Slope. Informants familiar \Yith the area spoke of the increasing usc of shallow draft boats to move ATVs to distant 

locations and a growing netv~'ork of ATV trails within the NPRA. 

Rased on infonnation obtained, there is little effort on the part of U1e BIJv1 to monitor personal A TV usc or to work 

\Vith local residents to minimize imp1:1cts to fragile ecosystems. 

U.S. National Forest Service (NFS) 

Although national forest lands in Alaska are generally steep rugged tenain and expanses of heavy tree cover, A TV usc 

is widespread. ATV usc takes place on forest roads, coastal hcaches. alpine tundra, lowland mcadO\Vs, river deltas and 

in shallmv streams. 

The 5.6mi11ion acre Chugach National Forest incorporates the upper reaches of Turnagain Ann. the northem Seward 

Peninsula, Prince William Sound and the coastlands of the northeastern Gulf of Alaska. Approximately 95% of the 

forest is otTicially closed to recreational ATV access. The out\vash plains of the Sno\Y River and the Resurrection River 

are specifically designated as open to ATV access. Both areas have extensive gravel bars, sparse vegetation and lands 

suhject to periodic flooding. The Forest Service considers ATV usc on these lands to have minimal environmental 

impact. Other lands open to ATV access include the I3mTier Islands off the mouth of the Copper Ri·ver and the nonvegetated dunes on the extreme western end of IIinchinhrook Island. ATV use is pc1mitted on the glacial outwash 

plains of the lower Copper River, particularly in the vicinity of the 27 Mile Bridge. The Forest Service is currently 

considering designating the northern tip of Hinchinbrook Island as an ATV usc area. Airboats are pern1itted on the 

Twenty Mile River at the headw·aters of Turnagain Ann. This area is also open to ATV use, although, to date, use there 

has been relatively light. 

In 2000, the NFS was in the process of developing an updated Forest Management Plan (FMP) for the Chugach 

National Forest The FMP will include a detailed access management plan. A draft of the Chugach plan includes an 

exhaustive list of all roads and trails within the forest indicating acceptable modes of access. All but a relatiYely small 

percentage of the trails and roads listed exclude recreational ATV access. 

The NFS places no restrictions on the usc of A TVs by eligible local residents for subsistence purposes. This is based 

on an agency inteiT'retation that A TVs are automatically covered hy the tenns of Title VIII of ANILCA. The \\Titt.."T 

pointed out that this interpretation is at odds \\'"i1h other federal agencies. Sister federal land managing agencies require 

a formal finding of traditional ATV use prior to declaring an area open. The USFS representatiYes acknowledged a 

need for multi-agency unifonnity in intCi1Jreting ANILCA ATV access provisions so as to reduce confusion_ One 

official e"Xpresscd his belief that all federal land managing agencies should have a unifonn interpretation of ''traditional'' 

as it applies to access. The NFS infonnants agreed that A TV usc will undoubtedly expand and increasingly hecome a 

management issue. 

Tongass National Forest 

Stretching some 400 miles from Yakutat Bay in the notth to Prince of Wales Island at the southcaskm tip of Alaska, 

the Tongass NF sprawls across an archipelago of rocky islands, deep fiords and mgged coastal lands. It is the nation's 

most productive rainforest both in terms of harvestahle tim her and wildlife habitat. The Tongass is also one of the 

nation's most scenic regions. 

A common mispcrception of Southeast Alaska is that it is virtuall~' roadlcss. In fact there is an extensive land 

transportation s:vstem consisting off orest SerYice roads, priYate logging roads and state-maintained public roads. Over 

4000 miles of Forest Service roads crisscross many of the islands of Southeastern Alaska. These roads penetrate 

heavily forested lands, passing through open muskeg lowlands and ascending mountain slopes to alpine tundra. 

Constmcted primarily for forest harvest and management, Forest Service roads hm·e become popular A TV trails. 

As is to he expected, the heaviest A TV use in the Tongass takes place in the vicinity of communities. ATVs m·e also 

transp01ted by hoat to distant islands and remote fiords to he oJ'f-loaded for travel on forest roads, beaches and coastal 

wetlands. ATVs arc used in hunting, fishing, gathering, trapping and general recreational riding. In dense forests, users 

40 
477 

41 

are largely confined to established routes. However, they frequently break free of these roads to accc~s marshlands. 

l1oodplains, tidelands, beaches, alpine meadows and streambeds. Soil erosion, altered vegetation communities. 

damaged fish spmvning and tidal invc1iebrate habitat, \Yildlife harassment and a general deterioration of esthetic 

qualities result from such incursions. A TV usc also contributes to the deterioration of forest roads and trails. 

The Forest Service bans ATV travel on some forest roads in the Tongass. BmTicades are placed across closed roads. 

These obstacles are easily bypassed, and effective enforcement over such a vast and mggcd area is extremely difficult. 

The Forest Service has initiated legal action against some violators, although they admit that it represents, at best, an 

extremely tiny fraction of suspected illegal ATV activity. 

Juneau District: The Forest Service found it necessary to close the Dredge Lakes area ';vithin Mendenhall Cllacicr 

Recreation Area after illegal A TV traffic resulted in extensive resource damage and inteti'crcd with non-motorized 

users. The repmt on this action states, ''Approximately 14% offish spawning areas in the Recreation Area arc being 

negatively affected by ATV use. Shorebird habitat along Mendenhall Lake has been disturbed . Vegetation is 

repeatedly damaged or destroyed by pioneer trails into both open and closed areas. As a n::sult of this illegal ORV use. 

habitat has been degraded and continues to he in over 13% of the Recreational Area. Inadequate Forest Service 

presence and enforcement contributes to the OR V situation on the Juneau Ranger District." 

Sitka Ranger District: Kmzof Island, a large uninhabited volcanic island on the outer Southcastcm Alaska archipelago, 

is among the premier scenic attractions of Alaska. The island is popular for V\'ildcrness-related recreational activities, 

particularly by the residents of Sitka on nearby Baranof Island. Sitka residents cross the ten~mile voide channel by boat 

to Kruzof Island for hunting, trapping and general recreation. ATVs are ferried across the protected waten\~ay to the 

island for travel on forest roads, trails, beaches and open meadows. Sections of the island arc closed to ATV s, but 

illegal access is commonplace. Environmental damage is particularly evident in Iris Meadmvs on the 'vestcn1 slope of 

the island. (Tongass Monitoring & Evaluation 199X Report). ATV impacts to Kruzof Island arc among the most 

seriow.; in the Tongass NF. 

Yakatat Ranger District: The Yakatat Forelands is a 25-mile wide, 3.5-mile long coastal plain separating the icy waters 

of the Gulf of Alaska and the glacier capped highlfmds of the St. Elias Mountains. This broad lowland is impotiant 

habitat for migratory' birds fmd resident wildlife. Local stremns arc prime spa\\·ning grounds and habitat for 

commercially important anadromous fish. 

In 1998, the Forest Service estimated there were approximately 60 miles of undesignated J\TV trails branching off the 

local Yakatat road :c:.y·stem. Twenty-three thousand acres of\Yctlands \Yere directly impacted b~y ATV access. Stream 

crossings diverted water out of streambeds into deep A TV mts reducing flow volume and potentially damaging juvenile 

salmonoids. Trail erosion and damaged stream banks appeared to he generating increased turbidity in affected streams. 

ATVs crossing and driving in streams damaged spawning habitat for pink and coho salmon. ''The hydrologic function 

of the vvctlands may be impaired by deeply incised traiLs. OR V trails divert surface and groundwater floyv from 

'vetlands and act as drainage ditches. Long-tcm1 effects may result in altered plant communities and diminished 

wetlands." (Tongass Monitoring & Evaluation 1998 Report). Increased ATV use and trail fonnation results in 

disturbance to such big-game species as moose and bear. Hunters are extending their ATV operations into previously 

difficult to reach areas, placing increasing pressure on wildlife and further deb:rrading natural habitat. 

Wrangell Ranger District: According to a Forest Service report, ATV impacts in the Wrm1gell Ranger District arc 

relatiYely minor. Damage to gravel surfaces has occurred at the Nemo Recreational sites on Wrangell Island. ATVs 

have impacted wetlands on Wrangell Island at the Upper Salamander Recreational site and Zarembo Island. (Tong ass 

Monitoring & Evaluation 1998 Report). 

Ketchikan Ranger District and Mistv Fiords National Monument: "There has been a steady increase in the off-road 

vehicle use on the Ketchikan Ranger District and Misty Fiords N.M., primarily snov.mobile and A TV use in the vvinter 

and ATV and jet :;;ki use in the summer. The wetlands in the Brown Mountain Area are receiving soil and 

Yegetation damage as a result of ATV use. The extent of the dan1agc of these resources is unknown. Monitoring the 

condition in the other areas has not takc"11 place, so it is uncertain if these same impacts arc occurring ... (Tongass 

Monitoring & Evaluation 1998 Repmi). A TV damage to Mi,1y Fiords National Monument is particularly troubling. Its 

designation as a national monument reflects its special natural character, which is being degraded by damaging access 

41 
478 

42 

Evaluation of Results: ·'ORV usage on the Forest appears to be on the rise. Implementation of Standards and 

Guidelines to prevent resource damage may not occur in some cases and is therefore not effective due to lack of 

controls oYer ORV usage. Additional qualitative data is needed to suhstantiate qualitative observations of adverse 

impacts of ORV use on resources.'· (Tong ass Monitoring and Evaluation 1998 Report) (Emphasis added). This 

passage of the report makes it clear that ATV access within the national forest is cause for conccm, calling for more 

eficctive controls. 

U.S. Fish and Wildlife Service (FWS) 

The U.S. Fish and Wildlife Service (FWS) is charged with the protection and management of approximately 53.6 

million acres of conservation lands in Alaska. National \Vildlifc refuges are scattered throughout the state from the 

Fon·estcr Island Alaska Maritime National Wildlife Refuge ncm· the southetn tip of southeaste1n Alaska to the Arctic 

National Wildlife Refuge in the eastern Alaska arctic. The Arctic National Wildlife Refuge (ANWR) is the most 

widely known, but there arc many other lesser-known refuges equally important in tenus of critical wildlife habitat. 

OYer a span of approximately four decades, the ·writer visited many of the wildlife refuges in Alaska. This included 

working closely with US Fish and Wildlife personnel on issues of mutual concern to the National Park Service and the 

FWS, including access. During Lhis time it was evident that A TV access constitutes a major concern for many' refuges. 

Refuge lands accessible by high"'ivay are particular!~: vulnerable to intensive ATV usc. Hmvcvcr, wildlife refuges in 

remote rural areas also experience substantial ATV related impacts. Rural residents generally make greater use of 

ATVs than do urbm1 residents and arc often willing to traverse lands most urhm1 A TV users "'ivould avoid. 

\Vhilc most wildlife refuges in Alaska experience vary· in g. degrees of ATV impact, those of particular conccm include 

portions of the Tetlin, Yukon Delta, Sclewik, Becharof, TogiaL Kodiak, Yukon Flats, and Alaska Peninsula National 

Wildlife Refuges. The Arctic National Wildlife Refuge also experiences ATV incursions into its northem region from 

the community of Kaktovik and in the southern region from the community of Arctic Village. 

The "'i:niter interYie\ved FWS regional officials regarding A TV access affecting wildlife refuges in Alaska. These 

representatiYcs expressed the opinion that, while A TV use does take place on several refuges, the overall impact is 

relatively light. They acknmvledgcd that concentrated heavy A TV access takes place in the vicinity· of mral villages. 

They also recobrnized that ATV use in general is increasing. These ot1icials infom1cd the writer that the FWS does nol 

have an active ATV monitoring program. The \\Titer found it difficult to obtain detailed infonnation regarding ATV 

uses on refuge lands in Alaska. 

With the exception of Becharof NWR and Alaska Peninsula NWR, the USFWS determined that A TV access is not a 

traditional means of suhsistence access. A TV usc on other refuges, except on established roads or for pem1it1ed access 

to private inholdings, is in violation of EO 11644 and federal regulations. 

Becharof NWR and Alaska Peninsula NWR 

During a telephone inten1ie\V with the manager ofBecherof NWR and Alaska Peninsula NWR, the writer was infonncd 

that ATV usc within these two refuges docs not constitute a significant management issue_ The refuge manager stated 

the heaviest use takes place along the King Salmon River. Some ATV use radiates out into the refuges from other 

coastal communities and extend~ onto refuge lands from remote coastal sites. When asked if the FWS actively 

monitors ATV access. the manager referred to a fieldtrip report written approximately seven years ago. The report 

chronicles a helicopter survey of "·idely spaced sites within both Bccharof and the Alaska Peninsula NWRs. Only 

three and a half pages of the document arc devoted to descriptions of sites visited and impacts ohscrved. 

Although the sm>:ey team discovered evidence of A TV use at a number of locations within the refuges, the repmi 

concludes Lhat, overall, the impacts were relatively benign. The report docs, however, include several pages of photos 

of locally significant ATV impact that appear to contradict this finding. The document concludes with the following 

recommendations: 

I. Areas of percnniallv wet or seasonally \\·et soils during periods of heavv use, should he monitored v,,ith increased 

timing ofvi;.;its and careful attention to noting locations where the vegetation mat shovvs damage b~· extensive 

breakage and/or death or lowered vitality of plants in the path of traffic. Where such conditions are noted the area 

42 
479 

43 

in question should he either closed for a minimum or one season or traffic patterns and methods of travel modified 

appropriatclv. The recovery of the vitality of the vegetation should be used as a primary decision factor in 

reopening impacting actiYities in affected areas. 

2. There are several tYpes of ccosv stems that are extremely fragile and highly susceptible to disruption bv even the 

slightest of improper activitv. Such sites like the grass-covered sandy beach dunes on the ocean coast, the sandysmall gravel beaches and dunc:s on the shores ofBccharofT,ake (near the outlet), and the \;vd or moist sedge and 

graminoid prairies located mostly in the south em part of the refuge in all present examples \Vhcrc traffic should be 

either eliminated entirely or restricted to receive the very lightest usage, with the option for immediate closw·e if 

needed. 

_,_ Many areas of the refuge where the ground cover is compo:-;ed of well established dwarf ericat.::cous shrub or dwati~ 

shmb/graminoid tundra can likely tolerate moderate regular smface impact. This assumption includes the caveats 

that traffic patterns do not increase suhstantiallv, and that traffic he di~pcrscd over the surface unless established 

trails arc to be used and existing impacts arc acceptable. Management must be \Villing to accept the fact that 

exposure of mineral soils does not always mean that impacts are irreparable. LlkevYise, \·egetation breakage of 

limited amounts may not be a cause for alann when the long-tc1m Yicw is taken for an area. 

4. The establishment of a regularly scheduled monitoring program, especiallv in areas of potential serious negatiYe 

impacts, must he made a prioritv if current access levels arc maintained for both the local and other publics. This 

program should indudc not only overnights. but also on-the-ground site visits m1d good photo-documentation to 

proYide historical documentation of degrees of change. (Trip Report (and Comments): Habitat Impact Evaluation 

for Off Road V chicle (OR V) Use at Selected Sites on 13echarof and Alaska Peninsula Refuges, 1993) (Emphasis 

added) 

Tht: writer \Vas unable to ohtain additional follmv-up reports of ATV u~c on tht! Dechcrof and Alaska Peninsula NWR, 

BaseJ on information proYidcd by the refuge manager, the FWS has not imposed A TV recommended access 

restrictions on refuge lands. There is no indication that the FWS has implemented the program recommendations of the 

repm1. 

Kenai National Wildlife Refuge: The Kenai National Wildlife Refuge occupies the major portion of the Kenai 

Peninsula in south central Alaska. The refuge is habitat for moose, the Kenai caribou herd, migratory birds, wolYes, 

lynx and a host of other \'Vildlifc. Streams and lakes within the refuge arc important spawning habitat for anadromous 

fish populations. The Kenai is one of Alaska's most popular regions for recreational boating, nature Yiewing, hunting, 

trapping m1d sport fishing. Ringed by highwa:ys and secondary roads that snake deep into the refuge, the Kcnai NWR i~ 

\Yithin less than a day's driYe for the majority of Alaska's population. All factors considered. the Kenai NWR would 

seem a prime candidate for heavy· ATV incursions. 

The \VTiter inteiYie\ved F& WS personnel at hoth the regional and refuge levels reganling A TV access within the Kenai 

NWR. The responses were somewhat con11icting. Regional officials expressed the impres~ion that the Kenai NWR 

likely experiences greater ATV access related problems than most other refuges in Alaska. A refuge-based 

representative, however, offered a dissenting view asserting that the refuge has an effective ATV mm1agemcnt. He 

proudly characterlzcd the \\-estern boundary of the refuge as being easy to determine from the air, because it is where 

ATV trails outside the refuge come to a dead cml. 

The Kenai NWR, fonnally the Kenai National Moose Range, has a history of effective refuge managers. Its first 

manager, David L Spenser, in 1948 initiated a program of proactive resource protection working with local residents to 

maintain the environmental integrity of the unit. He went on to become the Manager of all the Alaska Refuges. Mr. 

Spenser's dedication and accomplishments initiated a tradition of resource protection for the Kenai NWR that continues 

to endure. 

The vvritcr spent seYcral hours in a light aircraft flying over much of the Kenai NWR noting and recording indications 

of ATV incursion~. Based on these observations, some ATV incursions arc indeed taking placL: along northem section 

of the refuge, pmticularly in areas \vilh seeondar:· road access. Some of these incursions may be related to access to 

privale inholdings, although others appeared to extend into areas \Vith no visible sign of human habitation. However, 

the description by the refuge representative largely held true in the greater southern region of the Kenai NWR. 

Large areas of the westem Kenai Peninsula exhibit extensive severe ATV impacts. Deeply mtted trails crisscross broad 

expanses of\vetland~. Access damage in the Caribou Hills region is particularly dramatic. Most trails, however, end 

43 
480 

44 

abruptly at the refuge boundary. The lands on either side of the boundal)' arc essentially the same. The only 

explanation for this relative absence or A TV trails Vi}ithin the refuge is an effective access control program. 

Considering the population of south central Alaska and associated recreational demands, this is no mean 

accomplishment It sctTcs as an example of how management can effectively control A TV use on conscf\·ation lands 

even under intense access pressures. 

State of Alaska Consct\ration Lands: 

The primary focus of this rcpott is the management of all-terrain vehicle access on federal conservation lands in Alaska. 

Federal lands and responsible management agencies arc govemed by EO 11644, the Alaska National Interest Lands 

Conservation Act, the Wilderness Act, the Endangered Specie Act, the Clean Water Act, and other lmYs and federal 

regulations affecting ATV access. However, the management of ./\TV acces~ on private and state owned lands directly 

impacts and ini1uences the management of federal public lands. Large tracts of both state and private lands arc wholly 

or partially encompassed \Yithin federal conservation units. Other state lands are adjacent to federal conseiTation lands. 

The same users access both federal and non-federal lands often cro:::;sing from one to the other. ATV users having 

relatively unrestricted use on state lands and private lands often resent being barred from adjacent federal lands. 

The Alaska Department of Natural Resources (DNR) administers most rural state lands scattered throughout Alaska. 

State owned lands on the Nmih Slope, located primarily bet\\ een the ColYille River and ANWR, are closed to the 

summer use of ATVs. Special devices arc employed to detcm1ine \..Yhcn \\'inter frost has penetrated the soil deep 

enough to allow for vehicle usc. The agency, however, is concerned primarily with commercial ATV access, mostly 

related to mineral exploration and development. Although the closure to summer ATV usc is universal, DNR docs not 

enforce this closure on local residents. The agency largely ignores resident use due, in part, to political sensitivities. 

By statute, all state lands arc open to ATVs unkss specifically closed. The Alaska legislature has traditionally 

supported liberal access. Limiting access on lands particularly prone to AT V damage must overcome an ingrained bias 

against access restrictions. Some state park lands arc partially closed to A TV s or use is restricted to designated trails. 

The DNR Fairbanks Regional 01Tice oversees approximately 40 million acres of state owned lands spread 

discontinuously across the vast interior of Alaska. The staff consists of seven individuals and does not include an 

assigned enforcement officer. It is functionally impossible for this small staffto effectively monitor A TV uses 

occurring on lands under its jurisdiction or to enforce state environmental protection statutes The great majority· of 

ATV use goes unreported. 

The DNR is charged, in part, ,,·ith assisting in the transfer of state owned lands to private owners. This includes: remote 

mral parcels often unconnected to a road system. The disposal program tends to encourage the expansion of ATV 

access. As an example, state lands transferred to private ownership in the vicinity of Chandalar Lake in the central 

Brooks Range result in owners pioneering AT V trails across both state and fcdcrall~mds. In one case, a hunting guide 

acquired state lands and then impmied a number of ATVs to support his operations. A neighboring mvner attempting 

to maintain the natural character of the land was unable to convince the DNH. to restrict the expanding impact. Based 

on intervie\vs of DNR. personnel, it is difficult to gain the support or state solicitors in pursuing legal action against 

users \vho cause excessive enYironmental damage. 

The southern Kenai Peninsula serves as a dramatic example of impacts generated by virtually uncontrolled ATV access 

on state and private lands. The cumulative environmental damage is, in many cases, severe. Page Spencer, long-time 

resident of the area and daughter of the fom1ermanager of the Kenai Wildlife Refuge, tlcw the writer oYer the Kenai 

Peninsula in her priyatc small plane. The f1ight covered much of the western and southwestern sections of the 

penin~ula between Turnagain Am1 and the community of Homer. ATV impacts on the northcm peninsula were 

concentrated primarily along secondm·y roads. IIov,:ever, as the 11ight progressed southwm·d, impacts became 

increasingly \\·idespread. A TV trails radiated out from logging trails on NatiYe owned lands snaking cross countr:v like 

dark varicose veins. Trails often connected with vacation properties on the shores of larger lakes. 

In the vicinity of the Caribou Hills, A TV impact is virtually overwhelming. Glistening wet wehs of heavily mtted trails 

sprawl across the rolling landscape. When crossing wetland areas, these trails often span several hundred feet b1idly 

merging into a single, heavily worn track at stream crossings. The tcnn "decimated" came to mind in describing the 

scene. On-the-ground inspections confirmed that impacted lands have, in places, been chumed to depths of several feet. 

44 
481 

Normal drainage pattcms have b~cn intenuptcd. Where the trails ford streams, the banks arc stripped of vegetation and 

the streambeds artificiall~v ·widened. 1t is apparent the damage continues to expand. 

Conscnration Organizations 

Although environmental organizations have no direct land management authority, they serve as self-appointed 

ombudsman for the environmt,'tlt It is their mission to advocate the full legal protection of public lands as provided by 

lmY and agency mandat~s. 1n many instances, envirorunental organizations compliment the efforts of land managing 

agencies by marshalling public and political support to achieve mutual conservation goals. However, when land 

managing agencies fail to live up to their resource protection rcsponsihi1ities, conservation groups are expected to call 

them to task. This may include taking legal and political action to correct management shortcomings. Without this 

active oversight, there is a tendency for govemmcnt agencies to follmv the path of lea;;;t resistance. 

Most of the major consenmtion organizations have been exceptionally quiet regarding the issue of off-rom] vehicle 

access and impacts on public lands in Alaska. Considering the scope and severity of the problem, they have exerted 

SUqJrisingly little pressure on responsiblcJ . . . rs and mitigate adverse impacts. Even 

when conservation organization reprcsen A TV Tnu1" r:;~nhnn Hlll <o.:. results of ATV usc on public lands, they 

seemed content to accept agency assurances that adequate actions arc being taken to resolve the problem. Reticence to 

confront the ATV issue may be attributed, in part, to a desire to maintain positive relations \Yith the Native community 

and to aYcrt adverse potential backlash from many Alaskans resentful of any cfft11i to constrain access. 

The impacts of relatively unconstrained A TV access have become glaringly evident, encouraging some conservation 

groups to focus greater attention on the issue. The writer interviewi.:d a munber of representatives of the conservation 

community. All expressed a growing awareness and concem regarding ATV issues. Some shared pictures and 

anecdotal reports of uses and impads occuning on public lands. However, there did not seem to he a concerted and 

coordinated effort within the general conservation cmmnunit~y to address the issue of ATV access in a manner 

commensurate \Vith its proven potential to significantly alter natural areas. 

The environmental community must accept a pmiion of the responsibility for the ATV related deterioration of public 

wildlands in Alaska. Land-managing agencies are presstrre sensitive. The past tendency of environmental 

organizations to treat this issue \Vith benign neglect effc.ctiYcly removed a critical counterbalance to political forces 

favoring unrestricted access. Unless the environmental community becomes more assertive in 'vorking \Vith land 

managing agencies on A TV access issues. it is likely cnvirmm1ental damage \Vill continue unabated. 

CONCLUSIONS AND RECOMMENDATIONS 

With rare exceptions, the usc of all-tcnain vehicles on federal public lands in Alaska violates applicable fedcrallmvs, 

regulations and policies. The severity and extent of negatiYe impacts generally exceeds established envirorunental 

protection standards. Responsible agencies fail to fully enforce regulations designed to protect public lands and 

resources. Guidelines for promulgating special regulations and processes for fmmally designating A TV trails are 

45 
482 

46 

frequently ignored_ Land management officials knowingly pcnnit A TV usc that results in significant environmental 

deterioration. 

There arc no exact figures as to the full extent of ATV impacts on public lands in Alaska. However, it is safe to say that 

it is exceptionally \videspread and expanding. A TV damage to public lands located in Alaska probably exceeds such 

damage in any other region or the nation. The ultimate loss in yvildcmcss values and opportunities for public enjoyment 

of unspoiled public lands is incalculable. Each year, ATVs penetrate ever deeper into previously untouched lands. 

Pristine, trackless wildemess areas are shrinking at an alanning rate. 

Intra Agencv Management In all-too-many instances, land managing agencies have substituted rationalization for 

mitigation. Land and resource management plans calling for ATV controls are frequently ignored. Research reports 

exposing excessive A TV impacts and adYocating mitigative actiont~ are shelved with the excuse that additional research 

is necessary. In effect, research is used to create the illusion of action. The monitoring of A TV access and impacts is 

haphazard or non-existent. 

Absent a coherent agency access management strategy, individual unit managers must rely on their own interpretation 

of access regulations and policies. These managers, particularly those relatively new to Alaska, often ha\'e only a 

cursory understanding of ANILCA and other laws affecting access. They are understandably hesitant to break from 

past management practices and take a more assertive position on ATV controls. This results in internal confusion and 

conflicting approaches between units administered by the same agency Instead of speaking \Yith a unified voice on 

access management, there is bureaucratic babble and mixed messages. 

Inter Agenev Coordination: The general lack of internal agency coordination in regard to ATV management is 

mitrored at the interagency lcYel. Access-related provisions of ANILCA, Executive Orders, generic federal access 

regulations, the Wilderness Act and other legal mandates ha\·e general applicability to all federal land managing 

agencies. There arc, however, striking di1Tcrences between agencies as to inteiJ""lrctation and implementation of these 

laws. 

Neighboring conservation units often practice markedly different access management. As an example, the U.S. Forest 

Service pc1mits local resident.-; unlimited AT V access for subsistence purposes within Chugach National Forest. 

HmYcvcr, the U.S. Fish and Wildlife Service bans the use of ATVs for subsistence purposes on the adjacent Kenai 

National Wildlife Refuge. National Park Service regulations prohibit the usc of ATVs for subsistence in all parks in 

Alaska with the exception of Wrangell-St. Elias. Federal lands abutting national parks in Alaska include national 

wildlife refuges, national forests and BLM lfmds. These non-park lands are open to subsistence ATV access. With the 

exception of Wrangell-St. Elias NP&P, recreational ATV access is prohibited in national parks in Alaska. Virtually all 

adjacent BLM lands and national forest lands arc open to recreational ATV access. 

Uses and impacts taking place on the land of one agency often spill over onto those of another. Shared problems of 

erosion, reduced water quality, habitat destruction, vvildlife harassment and disturbance o[ other users take place even 

when political boundaries are not crossed. ATV users arc frequently confused and frustrated by the lack of continuity 

between neighboring conservations system units. The degree o[ disparity bet\:vcen agencies transcends differences in 

agency mandates. 

A notable exception to the general lack of coordination in access management is a cooperative effort between state and 

federal agencies to mitigate ATV trail impacts. The National Park Service, Alaska Department of Natural Resources, 

Alaska Department of Fish and Game and other agencies cooperate in ficld~tcstlng various techniques and materials to 

harden ATV trails and reduce impact. A product of this cooperation is a draft document, An Introduction to the 

Management of Degraded A TV Trails on Wet, Unstable & Permafrost Enviromncnts in South Central & Interior 

Alaska by Kevin G. Meyer of the National Park SeiYice (January 2001). This handbook-style report is an excellent 

example of the positiYc results attainable through cooperation between sister agencies in addressing access management 

issues. 

Trail Management: Attempts to mitigate ATV impacts through the constmction of trails and use of artificial surface 

matting have had mixed results. The fragility of a1Tccted lands, tendency for users to pioneer nc\v routes, agency 

reluctance to commit necessary· resources to trail plmming and maintenance and reticence to fully enforce access 

restrictions limit the success of trail development efforts. A TV trails stretch scores of miles into remote and rugged 

46 
483 

47 

areas, Trailheads arc often located \Vell a\vay from the established road system and are accessible only by boat or 

aircraft. Moving equipment, materials and personnel required to constmct and maintain an ATV trail is often expensive 

and logistically difficult. On average, it coste~ far more to constmct and maintain a mile of ATV trail than several miles 

of pcde:'ltrian trails. Nevctihclcss, where A TV uses arc permitted, trail development and management arc essential to 

protecting public lands. In particularly sensitive areas a \Yell-planned and designated trail system is cruciaL Where the 

expense and difficulty of designating, constmcting, maintaining and limiting usc to trails and routes adequate to protect 

public lands is prohibitive, ATV usc is inappropriate. 

Public Outreach & Participation: Land management agencies arc directed hy la\Y and policy to seek public involvement 

in the planning and care of public lands. The Bureau of Land Management in administeting national recreation areas 

has heen one of the more active agencies in this regard. IlmYcver, on non-NRA lands. the BLM has been less effective. 

The U.S. Forest Sen·ice has also sought public involvement in the development of forest access plans. Both agencies 

maintain an active \\'orking relationship \Vith the ATV user community. 

The National Park Service and the U.S. Fish and Wildlife Service have been less effective in working with the public 

on ATV access issues. In part, this may be attributed to the fact that much of the use occuning on FWS and Nl)S lands 

'iolates federallmvs, regulations and agency policies. Wrangell-St. Elias National Park and Preserve provides 

infonnational handouts on A TV access. Howe·ver, the park has not carried out the appropriate process of designating 

ATV trails and promulgating regulations. The Park Service has failed to adequately infonn the public of access-related 

concems and has not followed established processes to encourage their participation in resolYing access issues. The 

FWS has tumed its hack on illegal A TV access on refuge lands, thus avoiding the need to engage the public in seeking 

effective remedies. Where agencies bypass these procedures, the public is denied the opportunity to participate in 

decisions having significant impact on their interests in public lands. 

In addition to effectively limiting general public involvement, land managing agencies often fail to Yvork openly \Vith 

the ATV user community. Users entering onto the public lands arc often mmware that they may technically he in 

Yiolation of federal regulations. The benign neglect of land managing agencies creates an impression that ATV uses 

and impacts arc in keeping with agency goals tmd mandates. This makes it difficult for conscientious ATV users to 

work with land managing agencies in idcntilYing problems and seeking workahk solutions. 

Political Challenges: Land managing agencies face daunting political obstacles in dealing with access issues. The 

Alaska Congressional Delegation supports liberal access on federal lands and is not hesitant to exert pressure on agency 

officials toward this end. State and local represcntatiYes generally share a negative vic\\' of limits placed on access to 

public lands. Local residents, particularly in mral areas, often resent govemment controls that run counter to the classic 

frontier image. Native organizations tend to be critical of any access restrictions affecting their members. These 

pressures, particulfrrly at the state and local level, are often exerted directly on field based land management personnel. 

On~ park manager characterized access as the third rail of land mmu1gemcnt. Lacking agency ~ncouragement and 

sutiicient cmmterhalancing pressures from conservation organizations and other concetned stakeholders, responsible 

officials arc often prone to look the other \Yay. 

Recommendations: 

1. Usc Assessment: The first step toward an effective access management program is a comprehensive unit-hy-unit 

review of ATV uses taking place on public lands. This includes aerial surycys, ground assessments, mapping, 

photo documentation, identification of user r~)pulations, and detennination of primary resource issues. A 

standardized procedure for carrying out field assessments and reporting findings \Vould greatly impf(WC the ability 

to share data across agency llnes and identify overlapping conccms. Field unit reports should be compiled and 

summarized by regional offices and made a\'ailablc for public rcvic\Y and comment. 

2. Internal Coordination: In order to effectively deal with the complexities and political sensitivities surrounding 

ATV access, land managing agencies must exhibit much greater intemal consistency and coordination. While this 

does not require conservation system units to march in lock step, it does mean reasonable confom1it~y and 

continuity hct\vcen units within the same agency as to the interpretation and implementation of access-related laws, 

regulations and policies. Individual unit managers need to have a clear understanding of access management 

guidelines and be confident of agency support when addressing access concerns. 

47 
484 

48 

The regional o±Tices of the land managing agencies must accept the responsibility of coordinating access management 

between field llllits. This includes establishing guidelines for evaluating access issues, planning trail systems, formally 

designating trails and routes, promulgating access regulations, monitoring impacts and applying mitigation measures. 

Coordination could be facilitaled through the fom1ation of special regional workgroup:'~ consisting of hoth field and 

regional office representatives and specialists. Such '\'orkgroups would be tasked '"·ith drafting access management 

guidelines, devising management strategies, prioritizing concerns, rcvic\·ving reports and marshalling agency cxpertisL: 

and resources to address issues. Workgroups would nct\\'ork \Vith other state and federal land managing agencies and 

other sources of ATV access expertise and information. 

3. InteragencY Coordination: Land managing agencies must reach beyond their bureaucratic boundaries and 

cooperate with others \Yhcn dealing with access issues. There must he a forum for resolving differences in the 

interpretation and implementation of access laws and polici~.::s. A multi-agency \Vorkgroup should he fonncd to 

identify differences in legal interpretations, determine opportunities for cooperation and to help explain to the 

public reasons why individual agencies practice differing acce;-;s management. Such a \Vorkgroup \Yould encourage 

greater cooperation at both field and CL"11tral office levels in addressing access concerns. This would include 

research, trail design m1d construction, public outreach and enforcement 

4. Public Outreach: The most glaring flaw in general ATV access and impact management has been a pattern of 

agencies bypassing or minimizing public involvement CCJ.iain agencies have been particularly egregious in this 

regard. Public understanding and support arc crucial to an effective access management program, particularly 

\Vhcre political pressures come into play. Land managing agencies must let dmvn their bureaucratic guard and 

activcl:y encourage public input. In part, this means sharing infmmation regarding ATV access and impacts on 

public lands and uses not in keeping \Vith laws, regulations and policies. It requires engaging. stakeholders and the 

general puhlic in developing access plans. It also means ending the practice of bypassing proceJures for officially 

designating ATV access trails and routes that require public involvement. 

It is particularly important for agencies to reach out to ATV users apprising them or access regulations, policies and 

resource concems and to seck their assistance in minimizing impacts. It requires managing agencies to be forthcoming 

with A TV users \¥hen access must he restricted. 

5. Recreational Access: Then~ is no justification, legal or otherwise, for pennitting recreational ATV access resulting 

in significant negative impact to puhlic lands and resources. Where recreational A TV access is pennitted, it is 

incumbent on land managing agencies to assure that affected lands are accorded the full protection mandated by 

EO 11644, the Clean Waters Act, Wilderness Act, ANILCA and other applicable laws. In most cases, this requires 

the fmn1al designation, construction and maintenance of trails and routes. An effective outreach progran1 is 

essential. It also demands effective enforcement of regulations and prosecution of Yiolations. An on -going 

program of monitoring and research is essential. Agencies must he \Villing to take appropriate mitigation actions. 

including the temporm:; restriction or long-tenn exclusion of ATV use, before impacts become seYere. 

Tnsutiicient funding, lack of necessary personnel or other management deficits cannot he accepted as excuses for 

pL:nnitting damaging access. Indt::ed, if the responsible land managing agency is unable to prevent pcm1itted ATV usc 

Crom causing significant cm'ironmental damage, the appropriate action must he to impose restrictions, 

6. Subsistence: The use of off-road vehicles in support of subsistence actiYitics is a particularly 

complex and sensitive issue. Access to renewable natural resources is crucial to a suhsistence-hased economy and 

lifest:vlc. Hmvcver, such access must not degrade the environment and resource hase for the sake of short-term 

convenience. Ultimately, this imperils the oppmiunity for future generations to continue a subsistence lifestyle" 

ln most cases, the modes of transportation specifically provided by ANILCA arc sufficient for subsistence purposes. 

ATVs may offer greater opportunity to access land:-; otherwise difficult to exploit hy boat, snowmachine or foot, but that 

is not adequate justification for opening such lands to their usc. As discussed in an earlier section of this repmi, 

ANILCA docs not include language clearly supporting all-tenain vehicles as a means of subsistence access. It is also 

highly questionable for land managing agencies to grant such access to large numbers of rural residents haYing no prcANILCA personal or family histol}· of subsistence on affected public lands. 

48 
485 

49 

Even where :mbsistence A TV access may be permitted, it must not be allmYed to cause significant environmental 

impacts. Land managing agencies arc required to take appropriate mitigative actions to prevent environmental damage. 

The use of all-tetTain vehicles for subsistence purposes must be subject to the same standards of resource protection 

imposed on recreational A TV use 

7. Other Access Pmposes: ANILCA makes provisions for motorized access in support of commercial fishing_ 

travel between communities, access to non~fedcrallands and in exercising a valid mining claim. Such ncccss is to 

be -·reasonable" or "directly incidenC to the permitted activity. Where it can be shown that ATV use is covered by 

these provisions, the responsible land managing agencic:s must exercise its authorities to mitigate impacts. This 

requires the agencies to designate trails and routes and to take necessary actions to minimize environmental 

impacts. 

This report began \:~.·ith a quote from Robert Weeden's book, Alaska Promises to Keep. It is appropriate that it end with 

another, ''Now there is no ·'away'' for \Yild things to go .... Not that I foresee immediate doom for wildlife or near-tetm 

desolation of tundra and forest, but there is no denying the dramatic intensification of land uses, set in motion by wealth 

and human population growth. Much more of our wildlife will live in modified environments, in more frequent contact 

\Vith people, than ever before. The survival of wild landscapes \Vill be the result of human decisions, not accident." 

(Weeden, 1978). I can only add, indecisiveness on the part of land managing agencies and those charged with 

environmental ste\vardship ultimately spells the end of \vildness. 

flibliographv 

Alaska National Interest Conservation Act (ANILCA), PL 96-487. Dec. 2, 1980. 

Alstrand, G.M. et al. 1984. Resource Impact Evaluation Proposed Closure 

Applications for Denali, Glacier Bay, and Katmai National Parks. Alaska 

Regional Office, National Park Service, Dep. oflnterior, Anchorage. 

Alstrand, G. M. et al. 1988. Effects of All-Terrain Vehicle Use in the Vicinity of 

Anaktuvuk Pass, Gates of the Arctic National Park. National Park Service, U.S. 

Dept. of the Interior. 

Anderson, D., W. Anderson, R. Bane, R Nelson, and N. Sheldon. 1976. 

Kuvungmiut Subsistence~ Traditional Eskimo Life in the Latter Twentieth 

Century. Alaska Area Office, National Park Service, U. S. Dep. of the Interior. 

Anderson, D. et al. 1981. The Kotzebue Basin. Alaska Geographic Vol. 8, No.3. 

The Alaska Geographic Society, Anchorage. 

Baird, P. D. 1964. The Polar World. McGill University, Montreal. 

49 
486 

50 

Bane, G. R. 1966. Environmental Exploitation by the Eskimos of Wainwright, 

Alaska. U.S. Air Force Contract No. 41(609)-3200, Arctic Aeromedical 

Laboratory, Seattle. 

Bane, G. R. 1991. Draft Overview of ORV Issues and Concerns Facing Park 

Management in Alaska. Subsistence Division, Alaska Regional Office, National 

Park Service, U. S. Dep. ofinterior, Anchorage. 

Bishop, R.H. 1978. Subsistence Resource Use in the Proposed North Addition to 

Mt. McKinley National Park. Cooperative Park Studies Unit, University of 

Alaska, Fairbanks 

Catton, T. 1997. Inhabited Wilderness, Indians, Eskimos and National Parks in 

Alaska. Univ. of New Mexico Press, Albuquerque. 

Caulfield, R. A. 1979. Subsistence Use In and Around the Proposed YukonCharley National Rivers. Cooperative Park Studies Unit, University of Alaska, 

Fairbanks 

Duever, M. J et. al. 1981. Off-road Vehicles and Their Impacts in the Big Cypress 

National Preserve. Final report t-614. Prepared by Ecosystem Research Unit, 

National Audubon Society, Naples, FL, for the National Park Service, Everglades 

National Park, Homestead. 

Felix, N. & M. Raynolds. 1989. The Effects of Seismic Trails on Tundra 

Vegetation in Northeastern Alaska, U.S.A. Arctic and Alpine Research, Vol. 21, 

No. 2, pp 188-202. Arctic National Wildlife Refuge, U.S. Fish and Wildlife 

service, Fairbanks. 

Hall, E.S., C. Gerlach and M. Blackman. 1985. In the National Interest: A 

Geographically Based Study of Anaktuvuk Pass Inupiat Subsistence Through 

Time. Technical Memorandum #17. North Slope Borough, Barrow, AK. 

Hartzog, G. B. 1988. Battling for the National Parks. Moyer Bell LTD, New 

York 

Kauffmann, J. M. 1992. Alaska's Brooks Range, The Ultimate Wilderness. The 

Mountaineers, Seattle. 

50 
487 

51 

Kirk, W. et al. June 22, 1993. Trip Report (and Comments): Habitat and 

Environmental Impact Evaluation for Off Road Vehicle (ORV) Use at Selected 

Sites on Becharof and Alaska Peninsula Refuges. U.S. Fish and Wildlife Service, 

Dep. of the Interior. 

Kunz, M. and K. Troxel. 1988. The Anaktuvuk Pass All-Terrain Vehicle Study 

1986- 1988, A Narrative Report of Field Operations and Dispersed ATV Use. 

Alaska Regional Office, National Park Service, U.S. Dep. of the Interior 

Lopez, B. 1986. Arctic Dreams, Imagination and Desire in a Northern Landscape. 

Bantam Books, N. Y. 

Mantell, M. A et al. 1990. Managing National Park System Resources, A 

Handbook on Legal Duties, Opportunities, and Tools. The Conservation 

Foundation, Washington, D.C. 

McCay, B .M. & J.M. Acheson. 1987. The Question of the Commons, The 

Culture and Ecology of Communal Resources. Univ. of Arizona Press, Tucson. 

Meyer, K.G. An Introduction to the Management of Degraded ATV Trails on 

Wet, Unstable and Permafrost Environments in South Central and Interior Alaska. 

Rivers, Trails and Conservation Assistance Program, National Park Service System 

Support Office, National Park Service, Dep. of the Interior, Anchorage. 

Nelson, R., K. Mautner, R. Bane. 1982. Tracks in the Wildland, A Portrayal of 

Kuyukon and Nunamuit Subsistence. Anthropology and Historic Preservation 

Cooperative Park Studies Unit, Univ. of Alaska, Fairbanks 

Nelson, R. K. 1973. Hunters of the Northern Forest. The University of Chicago 

Press, Chicago. 

Norris, F. B. 1992. Tourism in Katmai Country. Alaska Regional Office, 

National Park Service, Dep. of the Interior, Anchorage. 

North Slope Borough Contract Staff. 1979. Native Livelihood and Dependence, A 

Study of Land Use Values Through Time. National Petroleum Reserve in Alaska 

105©, Field Study 1. U.S. Dep. of the Interior, Washington, D.C. 

Pelto, P. J. 1973. The Snowmobile Revolution. Technology and Social Change in 

the Arctic. Cummings Publishing Co., Menlo Park, CA. 

51 
488 

52 

Pruitt, W. 0. 1960. Animals of the North. Harper and Row, New York. 

Racine, C. H. and G. M. Alstrand. 1985. Response of an Alaska Shmb-tussock 

community to selected all-terrain vehicle tests in Wrangell-St. Elias National Park 

and Preserve, Alaska. Progress Rep. Alaska Regional Office, National Park 

Service, U. S. Dep. oflnterior. 60 pp. 

Racine, C. H. 1979. Tundra Disturbance and Recovery Resulting From Off-Road 

Vehicle Use for Summer Reindeer Herd and a 1974-75 Winter Drilling Operation 

in the Northern Seward Peninsula, Alaska. National Park Service, Alaska Area 

Office, U.S. Dept. of the Interior. 

Runte, A. 1979. National Parks, The American Experience. University of 

Nebraska Press, Lincoln. 

Schambach, K. 1999. California Off-Highway Vehicles: In the Money and Out 

of Control. California Wilderness Coalition, Davis, CA. 

Sheridan, D. 1979. Off-Road Vehicles on Public Lands. Council on 

Environmental Quality, U. S. Gov. Printing Office, Washington, D.C. 

Sinnott, R. 1990. Off-Road Vehicles and Hunting in Alaska A Report to the 

Alaska Board of Game. Alaska Depmtment ofFish and Gmne. 

Sparrow, S.D. et al. 1978. Effects of Off-Road Vehicle Traffic on Soils and 

Vegetation in the Denali Highway region of Alaska. J. Soil and Water 

Conservation 33:20-27. 

Speannan, G. Anaktuvuk Pass, Land Values Through Time. Cooperative Park 

Studies Unit, University of Alaska, Fairbanks. 

Weeden, R. B. 1978. Alaska Promises to Keep. Houghton Mifflin Co., Boston. 

Willis, F. 1985. Administrative History: The National Park Service a11d the 

Alaska National Interest Lands Conservation Act of 1980. National Park Service, 

U. S. Dep. of the Interior. 

Wright, G. R. 1992. Wildlife Research and Management in the National Parks. 

University of Illinois Press, Chicago 

52 
489 

53 

Uhl, William & Carrie. 1977. Tagiumsinaaqmiit, Ocean Beach Dwellers of the 

Cape Krusenstern Area: Subsistence Patterns. Cooperative Park Studies Unit, 

University of Alaska, Fairbanks. 

---- 1972. Executive Order 11644, Use of Off-Road Vehicles on Public Lands. 

The White House, Washington, D.C. 

---- 1977. Executive Order 11989. Off-Road Vehicles on Public Lands. The 

White House, Washington, D.C. 

---- 1977. Preliminary Research Reports Subsistence Resource Use Proposed 

Alaskan Parklands. Alaska Area Office, National Park Service, Anchorage. 

---. 1984. Dep. of the Interior Report on the Implementation of Title VIII of 

ANILCA- Subsistence Management and Use. Off. Of the Secretary, Dep. of the 

Interior, Washington, D.C. 

----1980. Public Law 96-487 The Alaska National Interest Lands Conservation 

Act. U.S. Congress, Washington, D.C. 

---- 1986. General Management Plan (Gates of the Arctic, Wrangell-St. Elias, 

Denali, Lake Clark, Katmai, Aniakchak, Glacier Bay, Yukon-Charley Rivers, 

Bering Land Bridge, Cape Krusenstern, Noatak, Kobuk Valley). National Park 

Service, U. S. Dep. of the Interior. 

---- 1988. Management Policies, U.S. Department of the Interior, National Park 

Service. Washington, D.C. 

---- 1990. The Alaska Lands Act: A Broken Promise. The Wilderness Society, 

VMW Printing, Hyattsville, PA. 

---- 1991. Off Highway Vehicle Monitoring Plan for the White Mountains 

National Recreational Area. Bureau of Land Management, U.S. Dep. of Interior, 

Fairbanks. 

---- 1992. Code of Federal Regulations, 36 Part 1 to 199. National Archives and 

Records Administration, Washington, D.C. 

53 
490 

Æ 

54 

---- 1994. Ecosystem Management in the National Park Service, Discussion Draft. 

National Park Service, U.S. Dep. of the Interior, Washington, D.C. 

---- 1994. Documentation of Traditional and Subsistence Access in the WrangellSt. Elias National Park and Preserve: A review of Existing Source Materials. 

Alaska Department ofFish and Game, ANILCA Coordination Program, 

Anchorage. 

----. 2000. Forest Service Roadless Area Conservation, Draft Environmental 

Impact Statement, Summary and Proposed Rule. U.S. Forest Service, U.S. Dep. 

of Agriculture. 

----2000. Off-Road Vehicles: Fastest Growing Threat. The Wilderness Society, 

Washington, D.C. 

54