Analysis of Laws Governing Access Across

Federal Lands: Options for Access in

Alaska

February 1979

NTIS order #PB-293982
Library of Congress Card Catalog Number 79-600029

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

Washington, D.C. 20402 Stock No. 052-003-00647-2
Foreword

This analysis was conducted in response to a request from the Technology Assessment Board that the Office of Technology Assessment

[OTA) examine the effects of Federal laws, policies, and practices on access through Federal lands to non-Federal mineral-bearing lands. The

report analyzes the laws governing Federal land management systems,

the laws specifically applicable to Alaskan lands, and the major environmental and land-planning laws that affect access across Federal land

management systems.

Prior to Alaska statehood, the Federal Government owned over 99

percent of the land in the State. The Alaska Statehood Act and the Alaska

Native Claims Settlement Act provide for conveyance of about 40 percent

of the land to the State and to Native Regional and Village Corporations.

Congressional intent, expressed at the time of passage of these Acts, was

to provide land and resources, including minerals, to create an economic

base for these non-Federal parties.

Following conveyance of State and Native lands, 60 percent of

Alaska will remain in Federal ownership. These Federal lands will be

managed by a number of different agencies under provisions of several

laws. Access is a legal right to use certain lands for a specific purpose

and access across Federal to State, Native, and privately held lands is a

prominent issue for several reasons. Among these are the extent and

nature of the Federal landholdings and the limited surface transportation

network. Compared to the contiguous United States, only a small portion

of Alaska is served by road or rail; and access for resource development

is closely related to the improvement and expansion of these systems.

Whether or not access across Federal lands for non-Federal mineral

development is an appropriate use of these lands is one element in the intense public debate about the future management of the Federal lands.

This report is particularly relevant to the current congressional

deliberations about Alaska National Interest Lands legislation. The 96th

Congress has before it bills calling for the classification of portions of the

remaining Federal lands in the State as national parks, wildlife refuges,

national forests, wilderness areas, and wild and scenic rivers. Initiated

under the provisions of section 17(d)(2) of the Alaska Native Claims Settlement Act, these bills could have a substantial effect on the future course

of mineral resource development on both Federal and non-Federal lands.

The decision of whether or not to allow Federal lands in Alaska to be used

for access requires consideration of many values. These values include

. . .

111
wilderness preservation, resource development, wildlife maintenance,

and the subsistence culture of Native and other rural Alaskan citizens.

The report presents five policy alternatives, or options, for congressional consideration. They constitute a range of approaches to access

policy for Federal lands in Alaska. The options were structured to highlight these alternative approaches so that the advantages and disadvantages of each choice would become more apparent. No single option

will meet the requirements of all interest groups, but a combination of

several could provide a comprehensive approach to access policy.

Congress’ final decision about the availability of access through

Federal lands in Alaska for mineral developments on non-Federal lands

will have long-range implications for the economy of the State and for

conservation of the national interest lands, This report provides information to assist Congress in resolving this important issue.

RUSSELL W. PETERSON

Director

iv
OTA Materials Group

Albert E. Paladino, Group Manager

Frank J. Wobber, Project Director

Karen L. Larsen, Technical Staff

William E. Davis, Technical Staff

Administrative Staff

Mary J. Adams Mona M. Chick Carol A. Drohan

Jackie S. Robinson Joyce E. Robinson

OTA Publishing Staff

John C. Holmes, Publishing Officer

Kathie S. Boss Joanne Heming
Materials Group Advisory Committee

James Boyd, Chairman

Materials Associates

Earl H. Beistline

University of Alaska

Seymour L. Blum

The MITRE Corporation

Lynton K. Caldwell

Indiana University

Robert L. Coble

Massachusetts Institute of Technology

Lloyd M. Cooke

Union Carbide Corporation

Frank Fernbach

United Steel Workers of America (Ret.)

James H. Gary

Colorado School of Mines

Edwin A. Gee

International Paper Company

Bruce Hannon

University of Illinois

Julius Harwood

Ford Motor Company

Elburt F. Osborn

Carnegie Institution of Washington

Richard B. Priest

Sears, Roebuck and Company

N. E. Promisel

National Materials Advisory Board

Lois Sharpe

League of Women Voters

Raymond L. Smith

Michigan Technological University

Simon D. Strauss

ASARCO, Inc.

George A. Watson

Ferroalloys Association

Franklin P. Huddle

Congressional Research Service

Advisory Panel for Assessment of

Access to Minerals on Non-Federal Lands

Earl H. Beistline, Chairman

Dean, School of Mineral Industry, University of Alaska

Roger Allington, Land and Engineering Officer John Katz, Chief Counsel

Sealaska Corporation Federal-State Land Use Planning

Commission, Alaska

James Boyd, President

Materials Associates Elburt Osborn, Distinguished Professor

Carnegie Institution of Washington

Charles Clusen, Associate Director

Sierra Club

vi
Alaska Working Groups

OTA wishes to acknowledge the contribution of the two Alaska working groups that were convened to discuss the needs for access across

Federal lands for mineral development on non-Federal lands and the environmental and social impacts of access.

Mineral Resources Workshop

University of Alaska, August 20-21,1977

Convened and chaired by Russell Babcock

Bear Creek Mining Company, Spokane Washington

E. O. Bracken

Alaska Department of Commerce and

Economic Development

Division of Economic Enterprise

Juneau, Alaska

Ed Fields

Bear Creek Mining Company

Spokane, Washington

C. C. Hawley

C. C. Hawley& Associates, Inc.

Anchorage, Alaska

Ross G. Schaff

Alaska State Geologist,

Department of Natural Resources

Division of Geological and Geophysical

Surveys

Anchorage, Alaska

John W. Whitney

Mineral Economist

Reno, Nevada

Hugh Mathison

Placer Development Corp. Dave Williams Vancouver, Canada Doyon, Ltd.

Jack F. McQuat Fairbanks, Alaska

WGM, Inc.

Anchorage, Alaska

Edwin M. Rhoads Frank Wobber

Mineral Industry Research Laboratory Congress of the United States

University of Alaska Office of Technology Assessment

Fairbanks, Alaska Washington, D.C.

vii
——

Environmental Resources Workshop

University of Alaska, October 18-20,1977

Convened by Celia Hunter, The Wilderness Society

Chaired by Robert B. Weeden, University of Alaska, Fairbanks, Alaska

Robert Belous David W. Norton

National Park Service University of Alaska

Anchorage, Alaska Fairbanks, Alaska

Dave Cline

National Audubon Society

Juneau, Alaska

Wyatt G. Gilbert Ben Shaine

University of Alaska Alaska Coalition

Fairbanks, Alaska Anchorage, Alaska

George Matz

Fairbanks Environmental Center

Fairbanks, Alaska Frank Wobber

T. Snell Newman Congress of the United States

National Park Service Office of Technology Assessment

Anchorage, Alaska Washington, D.C.

Acknowledgments

This report was prepared by the Office of Technology Assessment

Materials Group. The staff wishes to acknowledge the following individuals and organizations who contributed to the assessment.

Congressional Research Service

Dr. Allen Agnew, Senior Specialist in Environmental Policy

(Mining and Mineral Resources)

Consultants

Dennis Bryan Renee G. Ford David Masselli

W. E. Dresher B. Theberge S. Whitney

Contractors

John W. Whitney, Inc. The Wilderness Society C. C. Hawley& Associates

Resource Planning Associates, Inc. Harbridge House, Inc.

Geological Resources, Inc. Earth Satellite Corp.

Univ. of Arizona Pan Technology Inc.

. . . Vlll
Alaska Groups

A large number of individuals and organizations in Alaska provided

information for the assessment and reviewed draft documents circulated

by OTA. While the contributions of these various groups are acknowledged, OTA assumes full responsibility for the content of this assessment

report. A list of groups from the contiguous United States that contributed

to the problem evaluation phase of the assessment is provided in appendix C.

Alaska Federation of Natives,

Inc.

Alaska Miners Association, Inc.

Alaska Native Foundation

Alaska Native Land Manager’s

Association

Bear Creek Mining Company

Bering Straits Native Corporation

Bristol Bay Native Corporation

Citizens for Management of

Alaska Lands

Doyon, Limited

Fairbanks Industrial Development Corporation

Federal-State Land Use Planning

Commission for Alaska

Great Lands Exploration

Greater Fairbanks Chamber of

Commerce

Hawley & Associates

Placer Mining, Inc.

Resource Associates, Inc.

Sealaska Corporation

Standard Oil of California

Usibelli Coal Co.

WGM, Inc.

Wilderness Society

State of Alaska

Department of Commerce and

Economic Development

Division of Economic Enterprise

Division of Energy and Power

Development

Department of Environmental

Conservation

Department of Fish and Game

Department of Natural

Resources

Division of Geological and

Geophysical Surveys

Department of Transportation

and Public Facilities

Legislative Affairs Agency

Division of Research

Office of the Governor

Division of Policy Development

and Planning

Office of Pipeline Surveillance

University of Alaska

College of Mineral Industry

Mineral Industry Research

Laboratory

Cooperative Extension Service

Geophysical Institute

Institute of Social and

Economic Research

United States Government

Federal Power Commission

Alaska Power Administration

Department of Agriculture

Forest Service

Department of the Army

Corps of Engineers

Department of the Interior

Bureau of Land Management

Bureau of Mines

Fish and Wildlife Service

Geological Survey

National Park Service

Department of Transportation

Alaska Railroad Administration

ix
Contents

Chapter

1. Summary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3. Federal Laws Affecting Access . . . . . . . . . . . . . . . . . . . . . . . . . .

4. Federal Land Management Systems . . . . . . . . . . . . . . . . . . . . . .

5. Federal Laws Affecting Alaska Lands and Resources . . . . . . . .

6. Federal Land Planning and Environmental Laws . . . . . . . . . . . .

7. Options for Congressional Consideration. . . . . . . . . . . . . . . . . . .

8. Concluding Remarks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Appendix A—Glossary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Appendix B—Acronyms. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Appendix C—Public Participation and List of Supporting

Documents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Page

3

19

33

55

103

139

213

243

247

253

254

xi
——

1

Executive Summary

Photo Credft. OTA Staff

The Alaska Railroad and the highway connecting Fairbanks and

Anchorage, Alaska, looking south from near Nenana, Alaska
Chapter 1.-EXECUTIVE SUMMARY

Page

4

6

5

6

7

7

10

11

12

12

14

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15

15

13
1

Executive Summary

Rarely has the conflict between resource

development and protection of the natural environment been more severe than in Alaska.

The largest State is a treasury of natural

beauty, wildlife, and wilderness on a scale

that does not exist in the rest of the Nation. At

the same time, it has an abundance of natural

resources that may be needed in the future.

For decades, distance, climate, and lack of

development combined to enforce de facto

preservation of Alaska’s natural treasures.

The barriers that have protected Alaska’s environment have been lowered by technology,

by local development, and by an increased demand for resources.

At one time nearly all of Alaska’s 375 million acres were vacant and unappropriated

Federal lands. Little attention was given to

establishing management policies to govern

land use. With the exception of Alaska Natives, few used these vast lands and resources. The waves of exploration and exploitation that accompanied the booms in furs,

gold, and oil left most of the State untouched.

Now, for the first time, there is a reasonable prospect for natural resource development throughout the State, and plans are being made for many such projects. Economic

development has been accompanied by a major restructuring of landownership and land

management policy in Alaska that began in

1959 with the admission of Alaska as a State

and may well continue into the 1990's. Each

step of this process of change has been

dogged with controversy. Often the debate

has turned on the resolution of the conflict

between the use of land for its economic resources and the preservation and protection

of land for its natural values.

The most recent development in this process of change has grown out of legislative actions taken in 1971 to resolve an earlier controversy— the assertion of claims to almost

all of Alaska by native Indians, Eskimos, and

Photo Credit OTA Staff

Inactive gold dredge near Fairbanks, Alaska. Placer mining

for gold is underway in some areas of Alaska and interest in

hardrock mining is growing

3
4 ● Analysis of Laws Governing Access Across Federal Lands

Aleuts. The Alaska Native Claims Settlement

Act (ANCSA) extinguished all aboriginal land

claims and, in compensation, gave Alaskan

Natives $962.5 million and the right to select

44 million acres of Federal lands in the State.

Conflicts over the Native land claims had

slowed State land selections under the AlasALASKA NATIONAL

ANCSA also addressed the management of

Federal lands in the State. A key provision,

section 17(d)(2), directed the Secretary of the

Interior to withdraw up to 80 million acres of

land that he deemed suitable for potential inclusion in the National Park, Forest, Wildlife

Refuge, and Wild and Scenic Rivers Systems.

The Secretary was to study these lands and

make recommendations to Congress. To protect the national interest in these lands, commonly called “d-2” lands, prior to congressional action, they were withdrawn from all

forms of appropriation under the public land

laws, the mining and mineral leasing laws,

and from selection by the State or Native

regional corporations. Statutory authority for

these withdrawals expired on December 18,

1978.

Many proposals for Alaska National Interest Lands have been introduced in Congress since passage of ANCSA. During the

95th Congress, extensive hearings were held

on Alaska Lands legislation before House and

Senate committees. In May 1978, the House

passed H.R. 39, which would have set aside

over 100 million acres of Federal lands as national parks, forests, wildlife refuges, wild

and scenic rivers, and wilderness areas. In

October 1978, the Senate adjourned without

acting on the Alaska Lands Bill.

Prior to the expiration of the “d-2” withdrawals, a series of executive actions dramatically altered the Federal land management pattern in Alaska. On November 16,

1978, the Secretary of the Interior used his

emergency authority under section 204(e) of

the Federal Land Policy and Management Act

to withdraw all public lands in Alaska

ka Statehood Act and threatened to impede

construction of the Trans-Alaska Oil Pipeline.

ANCSA removed a major obstacle to the pipeline and paved the way for conveyances to

the State and to Native groups that will shift

approximately 40 percent

non-Federal ownership.

INTEREST LANDS

of Alaska’s land to

covered by congressional or administration

“d-2” proposals from mineral entry or selection by the State of Alaska. This emergency

withdrawal of some 110 million acres is effective for 3 years.

On December 1, 1978, President Carter invoked the Antiquities Act of 1906 to create 17

new national monuments in Alaska. These

monuments, totaling some 56 million acres,

include 13 new national parks, 2 new national wildlife refuges, and 2 national forest

areas previously proposed for wilderness

designation. National monuments are closed

to all disposition under the public land laws

including the mining and mineral leasing

laws. National monument status can be modified or revoked only by congressional action.

On December 1, the President also announced that the Secretary of the Interior

would initiate further action under section

204(c) of the Federal Land Policy and Management Act to protect approximately 40 million acres of proposed wildlife refuges under

20-year withdrawals. Section 204(j) of the

Act provides that the Secretary of the Interior may not modify or revoke any withdrawal

made under the Act that adds lands to the National Wildlife Refuge System. An additional

11.2 million acres of proposed wilderness

areas in the Tongass and Chugach National

Forests would be protected under a 2-year

withdrawal from location under the mining

laws and from State selection. Application

for this withdrawal to protect natural values

and in aid of legislation was submitted to the

Department of the Interior by the Secretary

of Agriculture on November 28, 1978. In announcing these withdrawals, the President
Ch. 1 Executive Summary ● 5

declared his intention to seek legislation permanently setting aside these areas and an additional 10 million acres included in the

November emergency withdrawals.

The outcome of congressional decisions on

Alaska lands could have a particularly strong

impact on the future course of mineral resource development in Alaska. Although Federal lands have most often played a major

role in mineral resource development because they contain rich mineral deposits, they

are also important as routes for access to

areas of mineral potential, both on and off the

Federal lands.

The conditions under which a given area of

Federal land may be used for access are determined to a large extent by the land classification system into which the land has been

placed. Each system—parks, forests, wildlife

refuges, wild and scenic rivers, wilderness,

and public lands—has its own rules. In the

West and in Alaska, where much of the land

is in Federal ownership, the use of Federal

lands for access is an important element of

land management policy. For understandable

reasons, the mineral industry favors policies

that encourage such use, while environmental and conservation interests oppose them.

OTA ASSESSMENT

At the request of the Technology Assessment Board, OTA conducted an assessment

of how Federal laws, policies, and practices

related to the use of Federal lands for access

purposes influence hardrock mining on nonFederal lands. The focus of the assessment is

on access for non-Federal mineral resource

development, that is, the ability to reach mineral-bearing lands and to remove the materials produced.

The assessment was national in scope and

specifically examined Alaska and several

ACCESS ACROSS

Access is the ability to reach certain lands.

It includes the right to use lands for private

rights-of-way and for transportation systems.

Permission to cross Federal lands is generally

obtained through a special use permit, a

right-of-way, or an easement granted under

the authority of the agency managing the

land. This report is concerned with two types

of access needs associated with hardrock

mineral development:

Western States with a high percentage of

Federal land and an active mining industry.

OTA selected study areas in Eastern and

Western States as well as in Alaska. Because

of the timeliness and relevance of the materials assembled during the assessment to current congressional consideration of Alaska

National Interest Lands legislation, assessment results were made available for the use

of Members of Congress, their legislative

staffs, and various committees as the study

progressed.

FEDERAL LANDS

—Private rights-of-way across Federal

lands to reach non-Federal lands or to

reach existing transportation systems;

and

—Rights-of-way across Federal lands for

transportation systems (roads, highways, railways, ports) to serve public

needs in general and mineral transportation in particular.
-. .—

6 ● Analysis of Laws Governing Access Across Federal Lands

SERIOUSNESS OF ACCESS PROBLEMS IN ALASKA

An independent OTA analysis of five

Alaskan study areas gives a perspective of

the seriousness of the problems associated

with access across Federal lands in Alaska.

For each study area, OTA evaluated the need

to use Federal lands for access to non-Federal lands. The evaluation was based on current information about State and Native land

selections, transportation availability, and

location of mineral deposits. As the final conveyances of State and Native selections proceed, non-Federal landownership patterns on

which the evaluation was made could be

altered. Information concerning the location

of mineral deposits is also increasing. Thus,

OTA’s evaluation could be subject to some

modification in response to shifts in landownership or mineral development activity. Generally, however, OTA found that:

●

●

●

The need for rights-of-way across Federal lands to reach non-Federal minerals

is a localized problem that is likely to occur in scattered instances. The need for

rights-of-way across Federal lands to

reach existing surface transportation is

also likely to occur infrequently,

In some regions of Alaska, mineral

resource development will require the

improvement of existing transportation

in order to move the bulk mineral products to market. In those regions served

by existing surface transportation, nonFederal lands are largely contiguous,

and a minimal need exists for rights-ofway across Federal lands for transportation routes to serve non-Federal mineral areas.

In regions that are not served by existing

surface transportation systems and that

are isolated from the rest of the State

and each other by Federal lands, new

transportation systems will have to be

constructed to transport hardrock minerals. In these areas, the development of

surface transportation systems to accommodate mineral resource production

or for other public purposes will involve

long distances and rights-of-way over

Federal, State, and Native lands. The

need to cross Federal lands in some

remote areas of Alaska is likely to arise

regardless of whether a statewide or

regional transportation system approach is adopted.

The surface transportation network in

Alaska is not extensive compared with that in

other States. The primary means of transportation between most areas of the State is by

airplane. The existing combination of air and

surface transportation is adequate to move

people and goods for most present needs. It is

technically and economically feasible to ship

precious metals by air, but most other hardrock minerals require transportation systems

that can move large volumes of bulky material over long distances at a relatively low cost.

The planning and development of surface

transportation systems is normally a State

function. There is, at present, no consensus

on the appropriate transportation system or

combination of systems to serve Alaska’s

community development and resource needs.

Various interests have advanced arguments

for building new surface transportation

routes or improving existing routes at public

expense, for extensions to the system financed by potential resource developers, and

for little additional development, This assessment does not consider the relative merits of

any of these positions, nor does it weigh the

costs and benefits of alternative transportation strategies. Rather, it addresses how

Federal policies on the use of Federal lands

for access, including use for the development

of transportation systems, affect hardrock

mineral development on non-Federal land.
—

Ch. 1 Executive Summary ● 7

After conveyance of State and Native land

selections, 60 percent of Alaska’s lands will

remain in Federal ownership. Because of the

vast Federal areas involved, the patchwork

distribution of non-Federal lands, and the

limited extent of existing surface transportation, access across Federal lands may be required to reach non-Federal lands. The access policies of Federal land management

agencies could exert substantial influence

over the development of resources in isolated

non-Federal areas.

FEDERAL LAWS

Because Federal land management policies

are likely to exert a strong influence over access across Federal lands in Alaska, this

report reviews those Federal laws affecting

access to minerals on non-Federal lands. The

laws are divided into three categories:

1.

2.

3.

Federal Land Management Laws—

Laws and regulations providing for access across units of the six Federal land

management systems: public lands, National Park System, National Wildlife

Refuge System, National Forest System,

National Wild and Scenic Rivers System,

and National Wilderness Preservation

System.

Federal Laws Relating to Alaska Lands

and Mineral Resources-The Alaska

Statehood Act, the Alaska Native Claims

Settlement Act, the Trans-Alaska Pipeline Authorization Act, the Alaska

Natural Gas Transportation Act of 1976,

and the Naval Petroleum Reserves Production Act of 1976.

Federal Land Planning and Environmental Laws—These laws can affect the

availability of access through various

procedural and substantive requirements. The report analyzes the impact

on access of the National Environmental

Policy Act of 1969, section 4(f) of the Department of Transportation Act, the Endangered Species Act, the Clean Air Act,

the Clean Water Act, and the Coastal

Zone Management Act.

FEDERAL LAND

MANAGEMENT LAWS

Each Federal land management system has

its own rules governing access for mineral

development on non-Federal lands. Two factors determine the terms and conditions

placed on access use of Federal lands: (1) the

classification of the affected land, and (2) the

proposed use for which access is needed.

Land managers for every system, including

the Wilderness System, have statutory authority to grant some rights-of-way. The availability of such grants and the nature of any

conditions imposed reflect the general purposes for which the affected unit is managed.

Public Lands

The Bureau of Land Management (BLM)

administers the public lands under laws that

require application of multiple use principles.

The Secretary of the Interior has ample authority under the comprehensive provisions

of Title V of the Federal Land Policy and

Management Act of 1976 (FLPMA) to issue

rights-of-way across the public lands, except

designated wilderness areas, for access to

non-Federal lands, for roads, highways, railroads, and other transportation systems and

facilities, and for other purposes. Section 603

of FLPMA requires that the BLM inventory

for wilderness values all roadless areas of

5,000 acres or more and all roadless islands

in the public lands. Potential wilderness

areas are placed in a wilderness study classification and must be managed to protect
—.

8 ● Analysis of Laws Governing Access Across Federal Lands

wilderness values until completion of administrative review and congressional action.

The requirement for protective management

limits the Secretary’s discretion to approve

any use of wilderness study areas, including

rights-of-way, that might conflict with or impair wilderness values.

National Park System

The National Park Service manages units

of the park system to conserve scenic and

natural values and preserve them for the enjoyment of future generations. There is no

statutory provision expressly authorizing

rights-of-way across lands in the National

Park System for access to non-Federal lands

or for transportation systems. The approval

of rights-of-way and other access uses of national park lands is a matter left to the

management discretion of the Secretary of

the Interior and the local park superintendent. Access use of park lands must be in conformance with the purposes of the park system and of the individual unit to be crossed.

National Wildlife Refuge System

The Fish and Wildlife Service manages the

wildlife refuge system as part of a national

program of wildlife conservation and rehabilitation. Rights-of-way across lands in the National Wildlife Refuge System may be allowed

if the proposed use is compatible with the

purposes of the refuge, and the applicant

agrees to pay the fair market value for such

use.

National Forest System

The Forest Service manages the national

forests on a multiple-use sustained-yield

basis. The Secretary of Agriculture has ample authority to grant rights-of-way across

national forest lands, except designated wilderness areas, under the comprehensive provisions of Title V of the Federal Land Policy

and Management Act of 1976. Rights-of-way

for roads and trails may also be granted

under provisions that authorize the development of the National Forest Transportation

System.

National Wild and Scenic Rivers System

Wild and scenic rivers are managed by the

Federal or State agency that had managerial

responsibility for these areas prior to their

designation. These rivers are managed to

preserve and protect them in a free-flowing

condition for present and future generations.

Rights-of-way across units of the National

Wild and Scenic Rivers System administered

by the Department of the Interior are granted

under laws applicable to the National Park

System regardless of the managing agency.

Rights-of-way over units managed by the Department of Agriculture are governed by

laws applicable to the National Forest System. Any conditions placed on the issuance of

any such right-of-way must be related to the

purposes of the Wild and Scenic Rivers Act. -

National Wilderness Preservation System

Units of the wilderness system are administered by the Federal agency that had

managerial responsibility for these areas

prior to their designation. Wilderness areas

are managed under protective rules to conserve their wilderness character. The Wilderness Act of 1964 forbids any temporary or

permanent roads or the use of mechanized

modes of transportation in designated wilderness areas—except as specifically provided by Congress. The use of lands in the National Wilderness Preservation System for

access purposes is limited to the specific exceptions recognized in the Wilderness Act.

These include: existing private rights; management and emergency purposes; access to

private or State lands completely surrounded

by a national forest or public lands wilderness area; use of airplanes and motorboats in

areas where such use predates wilderness

designation; ingress and egress to valid mining claims and other valid occupancies wholly

within a national forest or public lands wilderness area; facilities authorized by the

President in the national interest within a national forest or public lands wilderness area;

and other exceptions specifically approved

by Congress. The exceptions applicable to national forest and public lands wilderness
Ch. 1 Executive Summary ● 9

areas do not apply to park or refuge wilderness areas. The exceptions for completely

surrounded non-Federal lands or other lands

wholly within a wilderness area may not provide adequate assurance of access to some

isolated but nonsurrounded non-Federal

areas in Alaska. Construction of surface

transportation systems through wilderness

areas requires specific congressional approval.

Access Across Federal Lands in Alaska

Congressional designation of Alaska National Interest Lands will reduce many of the

uncertainties about the potential use for access of Federal lands in Alaska. It is impossible to predict what response a land management agency will make to a given request for

Photo Cred/t: Boyd Norton ICI, courtesy of Alaska Coalition

Mount Drum in the Wrangell-St. Elias area exemplifies

Alaska’s spectacular scenery

access. However, when land classifications

are established, reasonable assumptions concerning the availability or nonavailability of

Federal lands for access uses will be possible.

Given existing laws and policies, access

should be available across most units of the

public lands and the forest system, except

designated wilderness areas and wilderness

study areas. Access across units of the National Wildlife Refuge System is allowed if it

does not pose a threat to protected wildlife.

Because of the high degree of protective management afforded parks, wild and scenic

rivers, and wilderness areas, use of these

lands for access to non-Federal areas or for

transportation routes is strictly limited. On

park and refuge wilderness areas, an act of

Congress would be required to allow any significant access.

In all systems, but particularly the more

protected, the availability of access may well

turn on the factual issue of whether alternative routes or means of access exist. Each

system makes some provision for special consideration of requests from non-Federal landowners whose property is wholly surrounded

by Federal lands. The question of alternative

routes is also critical in considering the extension of any federally funded public transportation network across lands used for

parks or wildlife refuges. Such projects may

be approved only if there is no feasible alternative.

Enactment of d-2 legislation will not end all

the uncertainties about which land management policies will be applied to Federal lands.

As a result of the BLM wilderness review, additional Federal lands could be placed under

wilderness protection in the future. This possibility creates some uncertainty about the future availability of access across the public

lands. BLM wilderness areas are to be managed according to provisions of the Wilderness Act that are applicable to the national

forest wilderness areas. The BLM will give

priority to review of wilderness potential of

public land roadless areas in the lower 48
10 ● Analysis of Laws Governing Access Across Federal Lands

States. Wilderness inventory of Alaska public

lands will be deferred until after congressional action on d-2 proposals and conveyance of Native selections. This delay will provide an opportunity for non-Federal landownership patterns and access needs to

emerge.

FEDERAL LAWS RELATING TO

ALASKA’S LANDS AND MINERAL

RESOURCES

The Alaska Statehood Act and the Alaska

Native Claims Settlement Act provide for the

transfer of approximately 40 percent of Alaska’s land to non-Federal ownership. The development of land-based resources, including

minerals, was a major intent behind these

grants of Federal lands to the State and

Alaska Natives.

The Alaska Statehood Act endowed the

new State with grants of Federal lands and

revenues. These grants were intended to provide a stable economic base for the State.

Alaska received the right to select

103,350,000 acres of Federal lands, plus over

1 million acres of territorial grants of university, mental health, and school lands that

were confirmed by the Statehood Act, and

from 35 million to 40 million acres of submerged lands. All statehood land grants must

be selected by January 3, 1984, from Federal

lands that are vacant, unappropriated and,

except for certain national forest lands, unreserved at the time of their selection.

The State also received a share of Federal

revenues derived from natural resources

within the State. Alaska is entitled to 52%

percent of the annual net profits of Federal

mineral leases in Alaska in lieu of State participation in the reclamation fund. (This grant

is in addition to the 37%-percent revenue entitlement previously granted to the territory,

thus bringing Alaska’s share of Federal mineral leasing revenues to 90 percent.) The

Statehood Act also gives the State the right to

receive 90 percent of the net proceeds from

Federal coal lands in Alaska.

The Alaska Native Claims Settlement Act

(ANCSA) extinguished all Native claims to

lands and hunting and fishing rights based on

aboriginal title or use. In exchange, Alaska

Natives were given the right to select some 44

million acres of Federal lands and to share in

an Alaska Native Fund of $962.5 million.

Thirteen profit-making Native Regional Corporations were established to administer

land selections and fund distributions. Native

Village Corporations were also established to

administer local village selections. The mineral or subsurface rights to all Native selections are vested in the Regional Corporations.

Village Corporations receive surface title

only, The Alaska Native Fund is dependent, in

part, on contributions of $500 million from

Federal and State mineral leasing revenues.

ANCSA also established the Federal-State

Land Use Planning Commission for Alaska.

The Commission was to identify necessary

public easements across Native lands. The

Secretary of the Interior was authorized to

reserve specific easements across Native

lands. No provision was made for easements

across Federal lands to assure access to

lands conveyed to Alaska Natives. Secretarial orders reserving extensive easements

across Native lands have been the subject of

complex litigation delaying Native land conveyances.

Three other laws relating to the role of

Federal land management in the development

of natural resources in Alaska were also reviewed. The Trans-Alaska Pipeline Authorization Act authorized an expedited procedure for granting a right-of-way for the

Trans-Alaska Oil Pipeline. Judicial and administrative reviews of licensing and environmental proceedings were limited. The Act

also authorized a reservation for additional

rights-of-way for compatible uses on or adjacent to the pipeline right-of-way.

The Alaska Natural Gas Transportation

Act of 1976 provided an expedited procedure

for the consideration of several pending proposals to construct a natural gas pipeline

from the North Slope to the lower 48 States.
Ch. 1 Executive Summary ● 11

This expedited procedure provided for coordinated review of right-of-way applications

covering several different management systems. Final approval of the Presidential recommendation for a natural gas pipeline was

provided by a congressional joint resolution.

The Naval Petroleum Reserve Production

Act of 1976 transferred jurisdiction over and

management of the Naval Petroleum Reserve

in Alaska to the Department of the Interior.

No provision is made for granting any rightof-way over the Reserve for access to nonFederal lands. The Secretary of the Interior

must submit a report on the nonpetroleum

values of the Reserve within 3 years.

FEDERAL LAND PLANNING AND

ENVIRONMENTAL LAWS

Federal land planning and environmental

laws can also influence the availability of access to non-Federal mineral areas. Some of

these laws impose procedural requirements

or substantive restraints on the actions of

Federal land managers in reviewing and issuing rights-of-way and access permits. Other

laws set environmental standards for transportation and mining activities on both Federal and non-Federal lands. Compliance with

these standards is often made an express

condition of rights-of-way across Federal

areas.

The National Environmental Policy Act of

1969 (NEPA) requires that an environmental

impact statement (EIS) be prepared for major

Federal actions that significantly affect the

quality of the human environment. NEPA imposes no specific environmental standards or

direct restraints on access to minerals on

non-Federal lands. It does, however, exert

substantial indirect influence, since Federal

land management agencies must comply with

NEPA in their review of requests for rightsof-way across Federal lands. EIS preparation

and review may lengthen the time required

for approval of some rights-of-way and other

permits. Applicants may be required to pay

the costs of EIS preparation.

Section 4(f) of the Department of Transportation Act of 1966 bars the expenditure of

Federal funds for the construction of transportation projects that require the use of

lands from any public park, recreation area,

wildlife refuge, or historic site of National,

State, or local significance, unless there is no

feasible and prudent alternative to such use

and the project includes all possible planning

to minimize harm to the protected lands. The

Secretary of Transportation must conduct an

independent review of possible alternatives

before approving any federally aided transportation project using protected lands.

The Endangered Species Act of 1973 requires that all Federal agencies consider the

potential impact a proposed action may have

on an endangered or threatened species or a

critical habitat. Agencies must consult with

the Secretary of the Interior on means to

eliminate or minimize any risk to a protected

species or habitat. In areas that are home to

unique and endangered species, compliance

with the Endangered Species Act could impose additional constraints on Federal land

management agencies in issuance of rightsof-way across Federal areas.

The Clean Air Act and the Clean Water

Act set national standards for air and water

quality. Primary responsibility for enforcement of these standards is vested in the

States. Compliance with State and Federal

air and water quality standards is an express

condition of Federal land management system right-of-way permits. Noncompliance

could lead to revocation of the right-of-way.

The Clean Air Act Amendments of 1977

imposed strict controls on increases in the

levels of certain pollutants in areas where the

air quality is better than the national ambient

air quality standards. These amendments

divide existing clean air regions into three

classes according to allowable annual increments in air pollution: Class I areas where

minimal additional pollution is allowed; Class

II areas where moderate amounts of new pollution are allowed; and Class 111 areas where

pollution levels can increase to the national
12 ● Analysis of Laws Governing Access Across Federal Lands

standards. Some existing national park and

wilderness areas, including one park and

three refuge wilderness areas in Alaska,

were statutorily designated as Class I areas.

No d-2 lands are in this category. Certain

other existing large national parks, monuments, and refuges are Class II areas and

cannot be redesignated to Class III. There are

two such areas in Alaska. The only new conservation units that cannot be redesignated

to Class III status are new national parks and

wilderness areas that are over 10,000 acres

in size. The authority to redesignate the

classification of clean air areas, with the exceptions noted above, is vested in State

governments. Federal land managers have

only an advisory role in the redesignation

process.

The Coastal Zone Management Act

(CZMA) provides participating States with

Federal grants to develop and administer

comprehensive land management programs

for their coastal zones. In addition, by requiring that Federal activities in the coastal zone

must “be consistent to the maximum extent

possible,” with the State plan, it offers States

an opportunity to influence activities on Federal lands. Federal land management agencies are subject to the consistency requirements of the CZMA. Applications for rightsof-way or other uses of Federal lands in or

affecting coastal zone areas must be consistent with any approved State management

program. The effect of CZMA in Alaska is

unclear, because planning is incomplete.

OPTIONS FOR CONGRESSIONAL CONSIDERATION

An array of options for congressional consideration was developed in response to the

assessment request to consider possible modifications of Federal access policies (table 1).

These legislative policy options present a

range of approaches to the policy questions of

whether and for what purposes access

should be permitted across Federal lands in

Alaska. The options deal only with Alaska

lands.

The choice of an access policy for Alaska’s

d-2 lands involves the balancing of many competing interests and values, not only access

for the development of hardrock mineral resources on non-Federal lands. No single option was designed to meet the needs of all interest groups. Accordingly, a combination of

several options may provide a more comprehensive approach to the access needs of

non-Federal landowners to cross Federal

areas to reach their lands and the potential

need to construct major transportation systems across Federal areas to serve economic

development or community needs.

The five options are:

OPTION l–THE APPLICATION OF

EXISTING ACCESS POLICIES TO

ALASKA ADDITIONS TO NATIONAL

CONSERVATION SYSTEMS–THE

STATUS QUO

Under this option, the availability of access

over Federal lands would vary depending on

the land management system and the geographic area involved. Access policies for

Alaska conservation units and public lands

would be the same as those found in other

sections of the Nation, and the protections afforded Alaska lands would be consistent with

the levels provided elsewhere. Any shortcomings or uncertainties in existing laws would

remain. Mineral activities requiring access

through parks and wilderness areas could be

discouraged in areas where alternative access was not available. Some landowners

might not have adequate assurance of access

and of the terms and conditions under which

rights-of-way may be granted.
Table 1. —Summary of Selected Congressional Action Options*

Option 3A & B—Limited Provisions for —r

Alaskan Ac

A. Alaska Lands

Right-of-Way

Special right.of-way

provision for Alaskan

lands for access

through Federal lands

to surrounded, adjacent, or otherwise

Isolated non-Federal

lands or Interests in

land

cess Needs

B. Boundary Shift and

Land Exchanges To

Exclude Access

Routes

Option 5

Restriction of Access

Across National Conservation System

Lands

Option 2

Defer Access

Decision

Option 4A, B,& C

Alaskan Transportation System

Access Provisions

Option 1

Adopt Existing

Access Policies

ACCESS

POLICY

DECISION

Access use of Federal

d-2 lands restricted

beyond existing

statutory Iimitations.

Existing private rights

access to surrounded

lands, and existing

rights-of-way would be

recognized

Access through application of existing

laws

Specific deferral of access questions involving d-2 designations

and remaining Federal

lands in Alaska until a

certain date, or some

event in future, or in

definitely

Local realinement

of boundaries of

conservation systerns designations

to exclude access

routes Land exchanges to provide

access routes for

non-Federal landowners, with exact

Iocations Included

in d-2 designations,

or by reference to

maps filed later

Use of Federal d-2

lands for Alaskan

transportation system needs specifi-.

cally accommodated through (a)

transportation systern right.of.way

provisions, or (b)

designated corridors, or (c) new

Federal-State review agency for

Alaskan transport

tion systems

TIMING OF Now

ACCESS DECISION

Now Deferral—now, Access

decision — later

Now

Provision of d-2 lands

legislation —or as new

authority amendment

of existing right.of-way

provisions

Now Now

Provision of d-2 lands

legislation, or new

amendment of existing

provisions— new

authority

Congress makes d-2

lands designations

without any provision

for nonrecreational

access

Specific deferral provision in d-2 lands

Iegislation

Provisions of d-2 lands

legislation, or new

and exchange authority

Provision of d-2 lands

legislation—new

authority

LEGISLATIVE

IMPLEMENTATION

IMPLEMENTING

INSTITUTIONAL

ARRANGEMENT’

(a) & (b) Existing institutions and/or (c) a

new reviewing body for

Alaska transportation

systems.

Existing Institutions Existing Institutions Existing Institutions Existing Institutions Existing Institutions

(a) & (b) Existing decision mechanisms, or

(c) existing transportation decisionmaking

lnstitutions plus new

review body

Existing decision

mechanism. Use of

Federal conservation

system lands for

Alaskan transportation

system not permitted

without congressional

approval. (The restriction IS for transportation system use and

would not remove existing access

guarantees for nonfederal landowners.)

TRANSPORTATION SYSTEM

DECISION2

Existing decision

mechanism— FederalState transportation

planning and Federal

DOT 4(f) review. Later

congressional review

of specific systems via

program approvals and

appropriations

Existing decision

mechanism—transpor

tation systems use of

Federal d-2 lands

delayed until policy

decision

Existing decision

mechanism—this option provision does

not authorize rights-of -

way for development

of major transportation systems

Existing transportation

decision mechanism–

local boundary shifts

would leave access

routes as public lands

(d-1 classification) with

fewer use restrictions

than parks, etc., and

also available for later

State selection DOT

4(f) review of route not

required in most

cases, land exchange

would put route in

non-Federal ownership

‘For a complete discussion see text

‘Ex@ma lnStltUtiOnS include. Department of the Interior—Bureau of Land Management. National Park Serwce. Fish and Wlldlffe Serwce: Department of Aarlculture— Forest Serwce

2Exlstln~ agencies involved In transportation declslonmaklng Include. Departm~nt of Transportation—federal Highway Administration, Federal Avlatlon ~d-rninlstratlorr, Federal Rail

road Adml nistratlon, Interstate Commerce Commlsslon; U S. Coast Guard; Department of the Army, Corps of Engineers, and the Federal Power Commwsion.
14 ● Analysis of Laws Governing Access Across Federal Lands

OPTION 2–DEFERRAL OF

CONGRESSIONAL ACTION ON AN

ACCESS POLICY

This option calls for a specific deferral of

access questions involving d-2 designations

and remaining Federal lands in Alaska. This

option would assure future congressional review of access decisions, would allow for specific studies now underway to be completed,

for new studies to be initiated if needed, for

final landownership patterns to be determined, and for State transportation planning

to proceed. National interest lands would be

protected while the access policy decisions

were being made. The uncertainties about

the availability of land for access purposes

would continue, with delay or abandonment

of mineral exploration and development activities in areas without alternative transportation. Executive agencies might be reluctant

to grant access across Federal lands until the

final congressional policy decision has been

made.

OPTION 3–LIMITED PROVISIONS

FOR ALASKAN ACCESS NEEDS

This option has two approaches: Option 3A

would provide for a special right-of-way provision for Alaska conservation systems; Option 3B would provide for the exclusion of

transportation system routes from conservation system classification by making minor

boundary adjustments and land exchanges.

Option 3A does not authorize approval of

transportation system rights-of-way through

Federal conservation systems. This approach

would provide non-Federal landowners with

an assurance of necessary access through

Federal lands for resource development subject to regulation by the land managing agencies. It would allow access for non-Federal

owners requiring passage through d-2 lands,

especially those whose access needs are not

now covered by existing laws. This option

could compromise the protective intent of

conservation systems, particularly parks and

wilderness designations that strictly limit

conflicting use.

Under Option 3B land exchanges and

realinement of exterior boundaries of conservation system units could accommodate access needs by leaving the access routes in

public land classification. Natural transportation routes and historically used access

would be excluded from d-2 designations by

this approach. Land exchanges could permit

the use of Federal lands for necessary access

routes to non-Federal areas. In some areas,

realinement or exchange could conflict with

the purposes of conservation system designation, and might impair the ability of the

managing agencies to protect the natural

values of the units. Boundary adjustments

to accommodate anticipated transportation

routes would have to be based on potential

transport needs, and could lead to the selection of speculative or controversial routes.

Possible consequences could be the selection

of inadequate routes for mineral production

and the failure to provide some areas with

routes to meet future public needs.

OPTION 4–ALASKAN

TRANSPORTATION SYSTEM

ACCESS PROVISIONS

Under this option, congressional authorization would be specifically provided for the development of transportation systems. Three

approaches are examined: Option 4A, the

enactment of a right-of-way provision for

transportation systems that would be applicable to all Alaska conservation system

lands; Option 4B, the reservation of specific

transportation corridors through d-2 lands;

and Option 4C, the establishment of a new institutional decisionmaking mechanism to review proposals for crossing conservation

system lands.

Under Option 4A an Alaskan transportation system right-of-way provision would provide for approval of transportation routes in

the future based on demonstrated need and

specific proposals for transport systems. The

Secretary of the managing department would

be authorized to approve rights-of-way for

major transportation systems through conser-
Ch. 1 Executive Summary ● 75

vation systems, which would facilitate the

movement of mine products to markets, but

such approval could compromise the protective purpose of conservation system designations.

Under Option 4B future routes through d-2

lands would be limited to the specific corridors designated by Congress. Other transportation routes would require approval

under existing access processes. The limited

data now available on future transportation

needs make corridor designation difficult.

This option could lead to the selection of

routes that might be inadequate for future

needs and to later demands for additional

corridors. It could reduce the ability of the

managing agency to control the harmful effects of access uses.

Under Option 4C special legislation would

establish a new decisionmaking mechanism

to review transportation system rights-of-way

applications. The participation of interested

parties (Federal and State agencies, local

governments, Native Corporations, environmental groups, etc. ) in the review of transportation routes across Federal lands would provide the benefit of many views to the Secretary of the managing agency when making the

final access decision. This option would also

assure the consideration of transportation

needs in land management planning and decisionmaking.

OPTION 5–RESTRICTION OF

ACCESS ACROSS NATIONAL

CONSERVATION SYSTEM LANDS

This option would limit nonessential access

uses of conservation lands to add a further

measure of protection and preservation for

their natural values. No transportation systems could be built across Federal conservation systems lands without express congressional approval. The option would not impose

a complete ban on crossing Federal lands to

reach non-Federal holdings. Existing access

rights and the needs of non-Federal landowners to reach surrounded or other lands

that have no reasonably available means of

access could be accommodated. Existing access rights, Wilderness Act access exceptions, and established public use rights-ofway would be recognized. The discretion of

land managers to approve the use of Federal

lands for access purposes would be limited.

ACCESS TO NON-FEDERAL MINERAL LANDS IN OTHER STATES

The range of access options developed for

this report apply to Alaska where access

across Federal lands is an issue of widespread concern. The absence of access options for Federal lands in other States should

not be interpreted as meaning that no problems exist outside Alaska. However, based on

OTA interviews and contractor studies, it appears that there are few, if any, non-Federal

minerals access problems in other States because of landownership or transportation

patterns. OTA conducted interviews in several States with representatives of the mining

industry, of local governments, of environmental groups, and of other interests. These

interviews disclosed no instances where mineral development on non-Federal land was

prevented by the denial of access across Federal lands. Most non-Federal mineral areas

outside of Alaska are adequately served by

existing transportation networks.

UPDATE–ALASKA LANDS LEGISLATION IN THE 96TH CONGRESS

As this report was being prepared for final I mentally altered the context in which the

publication, the Carter Administration funda- Alaska Lands debate will proceed in the 96th
16 “ Analysis of Laws Governing Access Across Federal Lands

Congress. By Presidential action

Antiquities Act, the management

tion of 56 million acres of Federal

under the

classifica -

lands was

determined by the creation of 13 new national parks, 2 new national wildlife refuges,

and 2 national forest monuments. An additional 40 million acres will be added to the

National Wildlife Refuge System by Secretarial action under the Federal Land Policy

and Management Act. These new parks, refuges, and national forest monuments will now

be managed under the existing laws governing these systems. The current situation for

access across these lands is similar to OTA

Option 1 in this report. Thus, for about 96

million acres of public land in Alaska, the

issue before Congress will be whether these

lands should continue to be protected under

conservation system classifications and, not

as in previous debates, whether they should

be protected at all.

While Executive actions creating new national monuments and wildlife refuge withdrawals have determined the management

classification of most of the lands covered by

the “d-2” proposals in the 95th Congress,

other land management issues remain. The

task of establishing a land management

framework for Federal land in Alaska is not

yet complete. Many policy issues such as access, additional wilderness and wild and

scenic rivers protection, subsistence hunting,

wildlife management, mineral resources

availability, and State and Native conveyances remain to be settled.
2

Introduction
.— . .

Chapter 2.--lNTRODUCTlON

1.

2.

3.

4.

FIGURES

Land Status Map of Alaska ● ******

Metallogenic Provinces in Alaska. .

Transportation Networks in Alaska

Geographic Study Areas ● ☛

Page

● . ● ● ● ● ● * ● ● ● ● ● ● ● ● ● 20

● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● 22

,.. . ● c . . . ● ● . . . . . . 24

● ● $ ● ● ● ● . ● ● , ● ● ● ● Q ● 26
Introduction

This report contains information derived

from an Office of Technology Assessment

(OTA) assessment of the effects of Federal

laws, policies, and practices on access

through Federal to non-Federal lands. It

makes available the results of an analysis, by

the OTA staff and its consultants, of the

issues associated with the legal aspects of access, and presents a range of options dealing

with access through Alaska lands.

The issues concerning access through Federal lands differ in their seriousness, their

detail, and their visibility. Based on data collected nationwide,l OTA found that Federal

laws, policies, and practices are a factor in

access decisions in all parts of the country;

Federal land management practices are an

important issue in the contiguous United

States; and the land management laws and

policies governing those Federal lands that

are to be placed in conservation systems

under pending Alaska National Interest

Lands legislation are primary concerns in

Alaska.

The information contained in this report is

relevant to the current congressional deIInformation gathering by public participation interviews was important to analyzing Federal laws, policies, and practices affecting access. Appendix C includes a discussion of the methodology for OTA’s nationwide data gathering and analysis effort. Interest

groups (nearly 600 individuals) who were contacted by

OTA staff and OTA consultants and contractors are

cited in the preface and in appendix C. In addition,

FSLUPCA summaries of public input gathered in 1973

regarding disposition of (d)(2) lands were reviewed.

liberations about Alaska lands called for by

section 17(d)(2) of the Alaska Native Claims

Settlement Act (ANCSA), and particularly to

the use of Alaska conservation lands for purposes of access to non-Federal mineralbearing lands.

Prior to the Alaska Statehood Act and

ANCSA, less than 1 percent of Alaska’s land

was in non-Federal ownership. There will be

changes in the landownership patterns when

conveyance of the Native and State lands

under these Acts is completed, but approximately 60 percent or 220 million acres will

remain in Federal ownership (see figure 1).

The management of these federally owned

lands will depend on the land management

classification of specific units as designated

by Congress. This report examines the existing laws under which Federal land management agencies grant access. A range of

access options is presented and discussed.

Alaska land management issues are complex. They have been and continue to be the

subject of intense public debate. Deciding

how the land should be used is an important

national public policy issue, To resolve these

land use questions requires balancing many

values, among which are resource development, social needs, and environmental protection. The conflict between providing for

access (whether for mining or other purposes) and protecting the primitive values of

the land is part of the larger public debate.

Any analysis of the access process (i.e., the

terms and conditions of access and how it

19
—— .—

20 “ Analysis of Laws Governing Access Across Federal Lands

o

f
Ch. 2 Introduction ● 21

might be achieved) is, therefore, closely tied

to the question of whether or not access

across Federal lands for non-Federal mineral

development is an appropriate use of the

Federal lands. Access, as a value, must be

weighed against conservation and social

values such as the loss of wilderness, of

wildlife, and of a subsistence lifestyle.

Among the access issue-related questions

are the following:

●

●

●

Should an access decision be made now

considering the incompleteness of information about mineral potential and

the location of minerals?

Should an access decision be made now

considering the uncertainties about the

timing of minerals development?

Will facilitating access be sufficient for

the development of Alaska’s minerals, or

will there be other determining factors,

such as market restraints?

Mining interests argue that Alaska lands

are important potential sources of domestic

supplies of both fuel and nonfuel minerals

(figure 2) As the Federal-State Land Use

Planning Commission for Alaska (FSLUPCA)

has stated, “The major national interests to

be met in Alaska, apart from natural values,

are those for energy resources and important

minerals.” 2

A central issue in the debate on granting

access in Alaska, particularly for the development of hardrock minerals, concerns the

economics and the timing of mine development. Some contend that hardrock mining,

under present market conditions, is not likely

to develop in the near term (between now and

1990).3 Mining interests, however, believe

that development is possible before that

2“TheD-2Book’’Lands ofNational lnterestinAlaska,

FSLUPCA, May1977,p. 17.

3Bradford H. Tuck, Land Use Planning, the (D~2)

Lands and Alaska Resources: Some Economic Considerations, FSLUPCAStudy No. 22,August1977.

date. 4 These interests argue further that exploration and mine development should be

part of the economic development planning of

the State and of the Native Corporations and

that small mining interests in particular are

vulnerable to access restrictions.5

Conservation interests argue that Alaska is

the only State in which there are extensive

areas of land with only minimal intrusion

from human activities. Rural residents, particularly Aleut, Eskimo, and Indian citizens,

still depend on the resources of the land and

the waters for food. Thus, continued subsistence hunting, fishing, and gathering are essential to many communities. Since arctic

ecosystems are relatively simple and adjust

poorly to stress, many areas are vulnerable to

the changes that accompany intensive uses

such as mining. Regeneration rates for vegetation are slow, and wildlife populations often require extensive habitats. As a result,

the environmental consequences of intensive

land use, especially in the far north, are more

severe than in other States, and it takes a

much longer time for flora and fauna to

recover.

Access for resource development is closely

related to the improvement and future expansion of surface transportation systems. In

order to develop hardrock mineral resources

in some areas, surface facilities will have to

be constructed that move large quantities of

bulk ores. Compared to the contiguous United

4

0TA Mineral Resources Workshop, Fairbanks,

Alaska, August 1977. This workshop was supported in

part by OTA funds and in part by workshop participants.

5The possible effects of access restrictions on small

mining interests were identified during interviews in

Alaska conducted by Dr. F, J. Wobber, OTA project director, in January 1977. An OTA Working Paper, The

Economic Importance of the Small Miner and Small

Mining Businesses in Alaska by C. C. Hawley and J. W,

Whitney suggests that the future interests of small

miners and prospectors may weII be dependent upon

land status, mining laws, and reasonable access, Economic benefits from small mining businesses are also

discussed, See Analysis of Laws Governing Access

Across Federal Lands: Options for Access in Alaska,

Volume 11, Working Papers (OTA M-76).
22 . Analysis of Laws Governing Access Across Federal Lands
Ch. 2 Introduction ● 2 3

States, Alaska has a limited surface transportation network (figure 3). Most of the settlements throughout the State are connected

by air. But, like access, the expansion of surface transport is a controversial issue.’

Settling the uncertainties about an access

policy decision can facilitate the resolution

of transportation issues. But regardless of

whether Congress specifically addresses the

topic of transportation requirements across

the proposed conservation areas, the d-2

lands access policy decisions will have implications for non-Federal landowners. Because

of the large tracts of Federal lands and because of the transportation limitations, resource development on non-Federal (State

and Native) lands will have to take into account nearby or adjacent Federal holdings.

In choosing in which of the various Federal

conservation systems (Parks, Wildlife Refuges, Wild and Scenic Rivers, or National

Forests) to place the Alaska lands (the d-2

land designations), Congress will decide

about how these Federal lands will be managed. The access authority of the agencies

that manage Federal lands (the Park Service,

the Fish and Wildlife Service, the Forest

Service, and the Bureau of Land Management) is derived from the laws that govern the

various systems. Therefore, the availability

of access through Federal lands is dependent

on the laws and policies that govern the management system in which they are placed.

Congressional deliberations on access in

Alaska range from local concerns about the

surface movement of ore, to statewide concerns about the ramifications of extending

surface transportation systems. These issues

have implications both for the economy of the

State and for the conservation values of the

national interest lands.

This report is not intended to deal comprehensively with all of the issues associated

‘Paul Engelmen and Bradford Tuck with Jerry D.

Kreitner and Demis M, Dooley, Transportation and

Development of Alaska Natural Resources, FSLUPCA

Study No. 32, March 1978.

with access. It reflects a more specific concern. The Technology Assessment Board approved a study to ascertain the problems of

access to non-Federal land arising from Federal land policies, and the impacts of modifying those policies.7 This authorization

focused on determining the extent to which

Federal policies on the use of Federal lands

for access purposes influence hardrock mining on non-Federal lands.

While this assessment has been sensitive

to the complex issues of land use and management in Alaska, the tasks have been limited to

analyzing Federal laws, policies, and practices as they affect access through the Federal domain to non-Federal mineral-bearing

lands. Issues such as the impact of large

numbers of people who might cross Federal

lands if access is unregulated; the social consequences of changes in the rural Alaskan

lifestyle with expanded surface transportation; the reduction of wildlife and wild lands

resources from increased use; and the impact

of access on recreation are all of major importance in the Alaska Lands debate.8 However, as noted above, the analysis of these

issues is beyond the scope of this assessment.

In response to a full range of views on how

Congress might best respond to access issues,

OTA has generated a variety of policy alternatives for congressional consideration. The

development of these options drew on many

sources: OTA staff interviews in Alaska; an

examination of existing Federal land management laws (analyzed in this report); an independent analysis of five Alaskan geographic study areas by the OTA staff, complemented by the working papers prepared

Technology Assessment Board, Summary Minutes,

March 16, 1976, p. 4. See also correspondence between

Senator Ted Stevens and OTA Director Daddario dated

March 9, 1976 and assessment proposal dated March

12, 1976.

‘OTA Environmental Resources Workshop, Fairbanks, Alaska, October 1977. This workshop was

funded by OTA under a grant to the Wilderness

Society.
24 ● Analysis of Laws Governing Access Across Federal Lands

c.-

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0

0

0

.

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.
Ch. 2 Introduction Ž 25

by contractors and consultants;9 and discussions with congressional staff members.

In recent years, some interest groups in

Alaska—such as Native Regional Corporations, mining interests, and others—have expressed concern about possible restrictions

on access for natural resources development.

Some also anticipate that large tracts of

Federal conservation system lands will inhibit the expansion of the State’s limited surface transportation network that might be

needed for minerals development. In response to these concerns, OTA selected five

areas for study to measure the seriousness of

the access problem.

The five areas selected for intensive

analysis are (figure 4): the Seward Peninsula,

the Ambler River-Baird Mountains region,

the Yukon-Charley-Forty Mile Rivers drainage, the Wrangell-St. Elias Mountains region,

and the Mt. McKinley region.10 The criteria

for their selection included past and present

mineral extraction, high scenic, wildlife, subsistence, and other values, existence or lack

of surface transportation, adjoining Federal/

non-Federal landholdings, and the perception

by mining and environmental interests that

value conflicts involving access were likely to

occur in the area.

The information on study areas was gathered by OTA staff who conducted interviews,

‘Analysis of Laws Governing Access Across Federal

Lands: Options for Access in Alaska, Volume II, Working Papers (OTA-M-76). Other unpublished OTA working papers addressing various questions concerning access in Alaska and other States are cited in appendix C.

Iosix candidate study areas were identified during

OTA staff interviews in Alaska. Mining and environmental groups and the Advisory Panel supported the

choice of the five study areas finally selected by OTA.

Despite the interest of many groups over growing minerals development activity in mineralized areas of

southeastern Alaska, OTA omitted southeastern Alaska as a study area. Southeastern Alaska was excluded

as a study area because OTA staff interviews suggested that the area highlighted issues of access to

minerals on Federal, rather than non-Federal land.

and by workshops.ll The workshops were independently convened by conservation and

mining industry representatives. All data

were then re-evaluated by the OTA staff.

The analysis of these various study areas12

gives a perspective of the seriousness of the

problems associated with access through

Federal lands in Alaska. Based on existing information about the location of mineral deposits, landownership patterns, and transportation availability, it was found that:

1. The need for rights-of-way across Federal lands to reach non-Federal minerals

is a localized problem, likely to occur in

scattered instances. Similarly, the need

for rights-of-way across Federal lands to

reach existing surface transportation is

likely to occur infrequently.

Rights-of-way to reach existing transportation are most likely to be required in

the near term in the Yukon-CharleyForty Mile Rivers area. Surface transportation and rights-of-way exist in the

Mt. McKinley, Wrangell-St. Elias, and

Yukon-Charley-Forty Mile areas where

non-Federal lands are contiguous. Jurisdiction over existing transportation

routes in these areas is already in nonFederal hands.

2. In some regions of Alaska, mineral development will necessitate the improvement of existing transportation and the

construction of new systems. The lack of

transportation modes capable of moving

large volumes of bulk materials, in combination with local economic or interna1lInitial interviews with Federal, State, and private

interest groups in Alaska were conducted by Dr. F. J.

Wobber, OTA project director, in January 1977 with

followup interviews in August and in October 1977.

Based on these interviews, five areas were identified

and verified as representative of anticipated conflicts

among mineral resources and other values that might

emerge because of the need to use Federal lands for access to non-Federal land,

12 See Working Papers, supra, note 9.
26 . Analysis of Laws Governing Access Across Federal Lands

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0

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Ch. 2 Introduction ● 27

tional market restraints, could deter the

future expansion of hardrock mining in

those areas.

Some areas that contain Federal holdings isolate non-Federal lands from the

rest of the State and from each other. In

these remote areas, such as the Seward

Peninsula and the Ambler River-Baird

Mountains region, the construction of

new transportation systems—whether a

statewide or regional approach is

adopted—will involve long distances.

These systems will probably have to

cross lands in Federal, State, and Native

ownership.

It must be noted that these conclusions

could be subject to some modification as new

information on mineral deposits becomes

available, as State and Native selections progress, and as Congress decides on the final

boundaries of d-2 lands.

Where existing air and water transportation does not serve bulk mineral production

adequately, new transportation facilities will

have to be constructed if resource development is to proceed. Elsewhere, improved access to existing transportation, particularly

roads, is needed. The availability of rights-ofway to reach existing transportation systems

or new ones, which may be developed in the

future, is site specific. It depends primarily

on the access provisions of existing laws that

govern the particular land management system involved and the proposed access route

and use.

Little published information could be found

about the factors, particularly surface access

use of Federal land, that influence the availability of minerals on non-Federal lands. For

this reason, a special effort was made to acquire new data (see appendix C). A substantial amount of information was obtained
28 . Analysis of Laws Governing Access Across Federal Lands

[
Ch. 2 Introduction ● 2 9

through interviews conducted by OTA; additional information was obtained by consultants and contractors. To verify the results of

consultant and contractor interviews, OTA

conducted supplementary interviews to obtain the disparate views of the various interest groups.

A number of sources supplied background

information, which proved to be particularly

useful. The Congressional Research Service

provided an issue brief, “Alaska National Interest Lands (d-2] Legislation, ” and a special

report for OTA entitled, “Access to Minerals:

With Emphasis on Private Lands. ” The Federal-State Land Use Planning Commission for

Alaska contributed numerous internal legal

memoranda, since published as “Selected

Legal Memoranda, Volumes I and II. ” Background data concerning non-Federal mineral

resources and transportation access requirements for hardrock minerals development are

contained in an OTA Working Paper titled

“Assessment of Transportation Access Requirements for Minerals Exploration and

Mine Development and Operation in Alaska. ”

Insights into the environmental and social impacts of access were provided in a workshop

report, “Assessment of Environmental

Penalties Introduced by Transportation Access to Alaska Non-Federal Mineral Resources” prepared by the Wilderness Society (see Vol. 11, Working Papers). Various

contractor and consultant reports (see appendix C) and consultations with the Advisory

panel provided additional information.

This report focuses on two topics: the access provisions of Federal laws, and options

for congressional consideration that deal

with the process of obtaining access across

Federal lands in Alaska.

Chapter 3 is a summary of the Federal

laws governing access across Federal lands.

Chapter 4 describes and analyzes the access

provisions of the laws that govern Federal

land management systems. Chapter 5 examines Alaskan land laws, such as the

Alaska Native Claims Settlement Act,

Trans-Alaska Pipeline Authorization Act,

the Alaska Statehood Act. Chapter 6

the

and

discusses major environmental and land planning laws that affect access across Federal

land systems.

Chapter 7 presents five access policy options for congressional consideration. These

range from an extension of the existing access policies of the Federal land management

systems to the Alaskan additions to the national conservation systems, through special

Alaskan right-of-way and transportation system provisions, to a statutory restriction of

most access uses of conservation system (d-2)

lands.

The focus of this report is on the legal

dimensions of access policy, and particularly

on those factors that affect hardrock minerals development. Options are presented for

alternative access provisions that may prove

useful during congressional deliberations on

the Alaska Lands legislation.
3

Federal Laws

Affecting Access
—— -. -. .

Chapter 3.-FEDERAL LAWS AFFECTING ACCESS

Page

--- Introduction ● *.*m*ea **9e*e* ****   ** e9****ea *m** * 33

Federal Land Management Systems. . . . . . . . . . . . . . . . . . . 35

Public Lands ● *e**   ** ** *.*me*9 * * * * * * * e.*.**.* * 35

National Park System ● *******.*,*,.*.***.******** 37

National Wildlife Refuge System. . . . . . . . . . . . . . . . . . . . 38

National Forest System ●   ** ** *s **m******.****** 39

National Wild and Scenic Rivers System . . . . . . . . . . . . . 40

National Wilderness Preservation System-. . . . . . . . . . . . 42

Management Systems and d-2 Designations. . . . . . . . . . . . . 43

Federal Laws Relating to Alaska Lands and Mineral

Resources ● *0**   ** 9e*** 0*** ***9 eem e ** 0* 44

Alaska Statehood Act ● *****9********************* 44

Other Laws ● **** *.8 D********.**.*.**.*****.***** 46

Federal Land Planning and Environmental Laws. . . . . . . . . 47
3

Federal Laws

Affecting Access

INTRODUCTION

A complex web of laws, regulations, policies, and agency practices controls the use of

Federal lands. The availability of access use

of Federal lands for any given mineral resource development project is dependent on

these legal controls, as well as on economic

and physical factors.

Decisions on access are rarely simple. Except in unusual circumstances, numerous alternatives are available to any party seeking

surface transportation between two points of

non-Federal land. There may be many possible routes, a variety of transportation modes

(e.g., train, truck, barge), and a number of different protective measures to safeguard

other land values. In principle, it is almost

always possible to travel between any two

non-Federal areas in Alaska without using

Federal lands for access; airplanes or helicopters obviate the need to ever set foot on

Federal lands. Meaningful access, however,

generally requires the ability to use intervening Federal lands for the construction of surface transportation systems adequate to

move men, machinery, and materials economically. The ultimate choice of route,

transportation mode, and protective measures will be determined by the legal considerations that regulate the use of any affected Federal lands.

This report analyzes those laws that will

have the greatest influence on decisions relating to the use of Federal lands in Alaska

for access to mineral resources on non-Federal lands. For the purposes of this report,

the analysis is confined to land in the six

Federal land management systems. Lands

managed by other Federal agencies for program purposes, including military reservations, Department of Energy lands, and the

National Petroleum Reserve in Alaska, are

not discussed. Federal lands do not include

Indian reservations, which are managed by

the Government in trust, nor do they include

lands selected by Alaskan Regional Corporations or villages pursuant to the Alaska

Native Claims Settlement Act (ANCSA).

The analysis of access to non-Federal lands

does not include access to mineral claims on

Federal lands, even where the claims have

been patented and are in private ownership.

It also does not include any consideration of

access to ‘‘inholdings’ or other valid occupancies within a national park or forest.

Access is an enforceable legal right to use

certain lands for a specific purpose. It may be

conferred by a special use permit, by an easement, by a right-of-way or, in certain limited

conditions, through public use. There are two

33
34 . Analysis of Laws Governing Access Across Federal Lands

major types of access, private and public. Private access, on which most of this chapter is

focused, is a right granted to a specific individual or corporation to use lands; generally the grantee is responsible for providing

whatever facilities are needed to make access feasible. Public access involves the construction of roads and highways by the Federal, State, or local government. This may involve condemning land within one of the Federal land management systems and transferring it to the control of the Department of

Transportation. The laws governing public

access are covered in the review of section

4(f) of the Department of Transportation Act

and the National Forest Transportation System.

The analysis of Federal laws affecting access to minerals on non-Federal lands attempted to answer the following questions,

which are relevant to policy decisions on the

disposition of Alaska National-Interest Lands:

●

●

●

●

●

●

What provisions of Federal land management laws provide access across

Federal lands for the development of

minerals on non-Federal lands?

What terms and conditions are placed

on such access use of Federal lands?

Do existing laws and policies governing

the Federal land management systems

provide rights-of-way across the public

lands and national conservation systems

in Alaska?

What other Federal laws influence access across Federal lands?

What is the impact of Federal land planning and environmental laws on access?

What effect does the presence of federally managed areas have on mineral access and mining activities in surrounding

areas?

3- -~ti~.

Photo Credit: The Alaska Coalition

View of Mt. McKinley from the north on the road near the Kantishna mining district
Ch. 3 Federal Laws Affecting Access ● 35

To answer these questions, three categories of Federal laws that affect access

were examined. They are:

1.

2.

Federal Land Management Laws—

Laws and regulations providing for access across units of the six Federal land

management systems: public lands, National Park System, National Wildlife

Refuge System, National Forest System,

National Wild and Scenic Rivers System,

and National Wilderness Preservation

System.

Federal Laws Relating to Alaska Lands

and Mineral Resources-The Alaska

Statehood Act, the Alaska Native Claims

Settlement Act, the Trans-Alaska Pipeline Authorization Act, the Alaska Natural Gas Transportation Act of 1976, and

the Naval Petroleum Reserves Production Act of 1976.

Federal Land Planning and Environmental Laws—These laws can affect the

availability of access through various

procedural and substantive requirements. The report analyzes the impact

on access of the National Environmental

Policy Act of 1969, section 4(f) of the Department of Transportation Act, the Endangered Species Act, the Clean Air Act,

the Clean Water Act, and the Coastal

Zone Management Act.

FEDERAL LAND MANAGEMENT SYSTEMS

Each Federal land management system has

its own rules governing access for mineral development on non-Federal lands. Two factors

determine the terms and conditions placed on

access use of Federal lands: (1) the classification of the affected land, and (2) the proposed use for which access is needed. Land

managers for every system, including the Wilderness System, have statutory authority to

grant some rights-of-way. The availability of

such grants and the nature of any conditions

reflect the general purposes for which the affected unit is managed.

PUBLIC LANDS

The Bureau of Land Management (BLM)

administers the public lands. The Secretary

of the Interior has comprehensive authority

under Title V of the Federal Land Policy and

Management Act of 1976, (commonly known

as the BLM Organic Act) to grant rights-ofway over the public lands, except lands in

designated wilderness areas, Rights-of-way

are specifically authorized for “roads, trails,

highways, railroads, . . . airways, or other

means of transportation . . . or such other

necessary transportation or other systems or

facilities which are in the public interest and

which require rights-of-way over, upon, under, or through such lands. ” This comprehensive authority provides a legal basis for

rights-of-way over public land areas for access to minerals on non-Federal lands or for

the construction or improvement and expansion of transportation systems. There are two

limitations on this general availability of

rights-of-way:

. BLM public lands wilderness areas.—

The Secretary of the Interior may allow

access use of public lands that are part

of the National Wilderness Preservation

System only as provided in the Wilderness Act of 1964. All access provisions

of the Wilderness Act applicable to national forest wilderness areas are applicable to designated wilderness areas

managed by the BLM. The exceptions

relevant to access for purposes of non-
36 ● Analysis of Laws Governing Access Across Federal Lands

Federal minerals exploration and development are:

—Existing private rights.

—Continued use of aircraft and motorboats where use predates wilderness

designation.

—Access to State and private lands

completely surrounded by a wilderness area or exchange of the surrounded lands for other Federal land

of equal value.

—Access to valid mining claims and

other valid occupancies wholly within

a wilderness area by means customarily enjoyed in other areas similarly

situated.

—Presidentially granted exceptions for

facilities, including roads, in the national interest.

—Any other exceptions expressly provided by Congress for specific wilderness areas.

c“.- ““ ‘ “a

Bush plane, a primary means for transportation of people and supplies in rural Alaska
Ch. 3 Federal Laws Affecting Access ● 37

. Public lands in wilderness study classification.—Section 603 of the BLM Organic Act requires that the BLM inventory all roadless public land areas of

5,000 acres or more and roadless islands

for wilderness potential. Those areas

with wilderness potential are to be classified as wilderness study areas and

managed to preserve those values until

completion of administrative review and

congressional consideration. While

rights-of-way are not prohibited in study

areas, section 603 imposes restrictions

on the exercise of the right-of-way authority by limiting the Secretary’s discretion to approve any use that conflicts

with or impairs wilderness values.

NATIONAL PARK SYSTEM

The National Park System is managed by

the Secretary of the Interior through the National Park Service for the purposes of preservation of natural and historic values of

park areas for the enjoyment of present and

future generations. The Park Service is

vested with broad discretionary authority to

control activities and uses within the national

parks. There is no statutory provision expressly authorizing rights-of-way through

park areas for access to non-Federal lands.

While the absence of a specific provision

authorizing grants of rights-of-way across national parks does not bar such use, it does not

provide assurance to non-Federal landholders who may need to cross park lands.

This lack of any assurance of access and of

the terms and conditions of rights-of-way

could deter potential developers.

Non-Federal owners must rely on the general discretionary management authority of

the Secretary and individual park superintendents for access through park lands.

Park regulations issued under this authority

Phofo Credit. The A/aska Coa//t/on

Camping, Wrangell-St. Elias Region
38 ● Analysis of Laws Governing Access Across Federal Lands

provide that special use permits may be issued for commercial and other use of existing

park roads for access to private lands within

or adjacent to a park for which other means

of access are not otherwise reasonably available. Certain public lands statutes that are

applicable to the National Park System authorize rights-of-way through park areas for

electric power, communications, and water

drainage and irrigation systems and facilities. The use of the right-of-way must be compatible with the public interest and with the

purposes of the park system. These laws may

provide rights-of-way through parks for utility systems associated with mineral resource

development on non-Federal lands. These

Snowy Owl

Golden Eagle

utility rights-of-way may not be used for other

forms of access to non-Federal lands or for

transportation systems.

NATIONAL WILDLIFE REFUGE

SYSTEM

The National Wildlife Refuge System is

managed by the U.S. Fish and Wildlife Service. The Secretary of the Interior has ample

authority to grant rights-of-way across units

of the National Wildlife Refuge System for

access to non-Federal lands or for transportation systems where such use does not conflict with the management purposes of a particular area. The National Wildlife Refuge

Alaska Red Fox

Photo Cred/ts The Alaska Coal/tin?

Alaska Brown Bear — McNeil River
Ch. 3 Federal Laws Affecting Access .39

Administration Act authorizes the Secretary

of the Interior to permit the use of lands in the

National Wildlife Refuge System for any purpose, including access. Section 4 of the Act

specifically provides that rights-of-way

through refuge areas may be granted for any

purpose, “such as . . . powerlines, telephone

lines, canals, ditches, pipelines, and roads,”

where such uses are determined to be compatible with the purpose for which the refuge

areas are established. “Compatible” means

that the requested right-of-way or use will not

interfere with or detract from the purpose for

which units of the refuge system are established.

Holders of rights-of-way are required to

pay the fair market value of the right-of-way.

Net proceeds from right-of-way grants are deposited into the Migratory Bird Conservation

Fund to be used for land acquisition. Section

4 of the Refuge Administration Act largely

supplants other right-of-way provisions applicable to the National Wildlife Refuge System. There are two limitations on the availability of rights-of-way across refuge units:

-.

.

●

●

Access uses of refuge system components of the National Wild and Scenic

Rivers System are governed by laws applicable to the National Park System

consistent with purposes of the Wild and

Scenic Rivers System.

Access uses of Refuge System Wilderness areas may be granted only as recognized in the Wilderness Act and are thus

limited to those individual exceptions

specifically provided by Congress and to

existing private rights. The exceptions

applicable to national forest and BLM

wilderness areas do not apply to refuge

wilderness areas. Use of refuge system

wilderness areas for transportation systems and facilities must have express

congressional approval.

NATIONAL FOREST SYSTEM

The national forests are managed by the

Forest Service under the mandate of the

Multiple-Use Sustained-Yield Act of 1960.

The Secretary of Agriculture has broad disPhofo Crecflf OTA Staff

Tugboat towing logs to mill, Southeast Alaska
40 . Analysis of Laws Governing Access Across Federal Lands

cretionary authority to allow the use of Forest

System lands, except wilderness areas, for

access to non-Federal mineral areas and for

transportation systems.

Express statutory authority for rights-ofway across national forest lands for access

purposes is found in Title V of the Federal

Land Policy and Management Act of 1976

and in the Act of October 13, 1964, as

amended, authorizing development of the National Forest Transportation System. National forest components of the National

Wilderness Preservation System and the National Wild and Scenic Rivers System are

managed under the laws and regulations applicable to those systems in addition to

general laws governing the National Forest

System. Access uses of these areas are

limited. The Federal Land Policy and Management Act authorizes rights-of-way across

forest lands, except designated wilderness

areas, for roads, highways, railroads, and

other transportation systems and facilities.

The Act of October 13, 1964, as amended, authorizes grants of temporary or permanent

easements for road rights-of-way over national forest lands. Forest service regulations

implementing provisions relating to the National Forest Transportation System indicate

a policy of coordinated planning with consideration of the transportation and resource

development needs of surrounding communities. The Secretary of Agriculture may approve rights-of-way and other access use of

forest system components of the National

Wild and Scenic Rivers System under laws

applicable to the forest system provided that

any conditions placed on grants of such easements must be related to the policies and purposes of the Wild and Scenic Rivers Act.

Rights-of-way through designated wilderness

areas in the National Forest System may be

approved only as provided in the Wilderness

Act. The Wilderness Act recognizes the following exceptions relevant to minerals access to non-Federal areas and transportation

systems:

—Existing private rights;

—Preestablished use of aircraft and motorboats in areas of national forest wilderness subject to regulation by the

Secretary;

—Rights necessary to provide adequate access to State or private lands completely

surrounded by a national forest wilderness area (or exchange of these lands for

other Federal lands);

—Ingress and egress to valid mining claims

or other valid occupancies wholly within

a forest wilderness area by means customarily enjoyed with respect to other

areas similarity situated;

—Presidential authorization of other facilities needed in the public interest “including road construction” or use where

he determines that such use “will better

serve the interest of the United States

and the people thereof” than will its

denial; and

—Any other exception expressly provided

by Congress for specific wilderness

areas.

NATIONAL WILD AND

SCENIC RIVERS SYSTEM

The National Wild and Scenic Rivers System was established so that certain rivers

with outstandingly remarkable scenic, recreational, fish and wildlife, and other similar

values would be “preserved and protected in

a free-flowing condition for the benefit of

present and future generations. ” The system

includes both federally and State designated

rivers. Federal wild and scenic rivers are

managed by the land management agency

that had responsibility for the river before its

designation. The classification of rivers as

wild, scenic, or recreational is made according to certain characteristics, including their

accessibility by road; wild rivers are the least

accessible, scenic rivers are more accessible,

and recreational rivers are the most accessible. Rivers are to be managed to preserve the

values that led to their initial designation and

classification. Therefore, any use that might

be detrimental to these values could be

denied.
.

Ch. 3 Federal Laws Affecting Access ● 41

The access provision of the Wild and

Scenic Rivers Act distinguishes between

those river components managed by the Secretary of the Interior and those managed by

the Secretary of Agriculture.

Rights-of-way across all wild and scenic

rivers administered by the Secretary of the

Interior are issued in accordance with the

laws applicable to the National Park System

regardless of whether the river is part of the

National Park System, the National Wildlife

Refuge System, or the public lands. For these

rivers, there is no statutory provision expressly authorizing rights-of-way for access

to non-Federal lands.

Rights-of-way for components administered by the Secretary of Agriculture are

issued under laws relating to the National

Forest System. The Secretary of Agriculture

has ample authority to grant rights-of-way

over forest system component rivers under

Title V of the Federal Land Policy and Management Act. There is additional authority to

grant easements for roads and trails under

laws relating to development of the National

Forest Transportation System. Any conditions placed on the issuance of a right-of-way

or easement must be related to the purposes

of the Wild and Scenic Rivers Act. When a

river is also managed as part of the Wilderness System, the more restrictive provisions

apply in case of any conflict.

H?ofo Credit Nat/ona/ Park Serv/ce

The Charley River meanders through a park-like setting
42 ● Analysis of Laws Governing Access Across Federal Lands

NATIONAL WILDERNESS

PRESERVATION SYSTEM

The National Wilderness Preservation

tem was created to provide the whole Nation

with “the benefits of an enduring resource of

wilderness. ” Congressionally designated wilderness areas in national parks, forests, wildlife refuges, and public lands are managed

under special rules “for the use and enjoyment of the American people in such a manner as will leave them unimpaired for future

use and enjoyment as wilderness. ” Provisions

of the Wilderness Act of 1964, and the regulations thereunder, which control activities

and uses in wilderness areas, are protective

and stringent. The general policy for use of

wilderness areas is:

Except as specifically provided for in this

Act, and subject to existing Private rights,

there shall be no commercial enterprise-and

no permanent road within any wilderness

area designated by this Act and, except as

necessary to meet minimum requirements for

the administration of the area for the purpose of this Act (including measures required in emergencies involving the health

and safety of persons within the area), there

shall be no temporary road, no use of motor

vehicles, motorized equipment or motorboats, no landing of aircraft, no other form of

mechanical transport, and no structure or installation within any such area.

Photo Cred/f: The A/aska Coa//t/on

The Brooks Range near the Arrigetch Peaks
Ch. 3 Federal Laws Affecting Access s 43

Access uses of wilderness areas recognized in the Wilderness Act are limited to the

following:

a.

b.

c.

d.

e.

Preexisting private rights;

Access routes and facilities for wilderness recreation and management purposes;

Emergency purposes;

Established use of motorboats and aircraft where such use predates wilderness designation—subject to regulation

by the management agency;

Presidential authorization of the use of

national forest and public lands wilderMANAGEMENT SYSTEMS

The final congressional designation of additions to national conservation systems

called for in section IT(d)(Z) of ANCSA will

reduce some of the uncertainties concerning

access use of Federal lands in Alaska. The

terms and conditions for obtaining access

across some conservation units—forests, refuges, and public lands—can be anticipated

based on existing laws and policies.

The public lands and the National Forest

System have broad and comprehensive rightof-way provisions. Consequently, lands in

those two systems, with the exception of wilderness study areas and designated wilderness areas, are the most available Federal

lands for access to non-Federal mineral lands

and for construction of transportation routes.

Access use and rights-of-way across refuge

system lands may be allowed in the discretion

of the managing agency if the proposed use is

compatible with the purposes of the refuge

and if the applicant agrees to pay the fair

market value for the use.

Access use of national park lands rests

with the management discretion of the Secretary and the individual park superintendent.

f.

g.

h.

ness areas for projects and facilities in

the national interest;

Adequate access rights for State and

private lands completely surrounded

by wilderness areas in national forests

or public lands;

Access to valid mining claims and other

valid occupancies wholly within a national forest or public lands wilderness

area by means that are currently or

customarily enjoyed in similarly situated areas; and

Special provisions applicable to specific wilderness areas.

AND d-2 DESIGNATIONS

Such use must be in conformance with the

purposes of the park system. There is no statutory provision expressly authorizing rightsof-way across park areas for access to nonFederal lands or for transportation systems.

Rights-of-way across National Wild and

Scenic Rivers System components managed

by the Department of the Interior are issued

under laws applicable to the National Park

System regardless of the managing agency.

Access uses of wilderness areas is highly restricted and subject only to the exceptions

recognized in the Wilderness Act. The wilderness review required by section 603 of the

BLM Organic Act raises some uncertainty

about the future availability of access use of

d-l lands (those public lands currently withdrawn under section IT(d)(l) of ANCSA that

will remain after Native conveyances, State

selections, and congressional designation of

conservation system additions under section

17(d)(2)).

The BLM has decided that wilderness review of public land roadless areas in the lower 48 States will have priority. The wilderness inventory of Alaska public lands will be

deferred until after congressional action on
44 ● Analysis of Laws Governing Access Across Federal Lands

Alaska National Interest Lands and settlement of Native selections and conveyances

under ANCSA. This delay will allow an opportunity for State and Native access needs

to be defined. It will also permit decisions on

inventory and use classification of remaining

public lands to include a consideration of the

impacts of such classifications on the protected values of new and existing conservation system units. As a result of BLM wilderness reviews, additional Federal lands may

be placed under wilderness protection in the

future. This protection will restrict access

uses of those areas.

It is difficult to ascertain what effect these

possible future classifications will have on

the availability of public lands in Alaska for

access purposes. The public land inventory

and wilderness review procedures, however,

provide a mechanism for the State, Native

Corporations, or other parties to present any

need to use the proposed wilderness areas

for access. Moreover, BLM wilderness areas

will be subject to all the exceptions applicable to National Forest Wilderness areas,

thus even after wilderness designation, several classes of access use are preserved.

FEDERAL LAWS RELATING TO ALASKA LANDS AND

MINERAL

Until statehood, over 99 percent of all land

in Alaska was in Federal ownership. Although public land laws encouraging disposition, such as the Homestead Acts, applied to

Alaska lands, they did not operate to transfer

significant amounts of public land to private

ownership.

Two laws—the Alaska Statehood Act and

ANCSA—will transfer more than 148 million

acres from Federal ownership. ANCSA also

provides a framework for the reclassification

of Federal lands in Alaska. Three other laws

have established special rules for the use of

some Federal lands in Alaska in connection

with three major energy development projects.

An analysis of the Alaska Statehood Act

and ANCSA indicates that development of

land-based resources, including minerals,

was one of the purposes behind the unprecedented grants of Federal lands to the State

and to Alaska Natives. The House report accompanying the Alaska Statehood Act indicates that the grants of lands and revenues

from lands were designed to remove a potential impediment to the operation of an effective State government. There was concern

that Alaska. which has always been heavily . .

dependent on federally financed construction

projects and military bases, could not support

the costs of self-government from resources

on which revenue could be generated. Similarly, ANCSA’s grant of subsurface rights to

profit-making Native Regional Corporations

was one of several provisions designed to ensure a viable economic future for Alaska

Natives.

ALASKA STATEHOOD ACT

The Alaska Statehood Act, enacted in

1959, contains several important provisions

that changed the previous patterns of landownership and control in Alaska. The State

was permitted to select:

—102,550,000 acres of statehood land

grants from vacant, unreserved, and unappropriated public lands;

—400,000 acres of vacant, unreserved,

and unappropriated forest lands (with

approval of selection by the Secretary of

Agriculture) for community expansion

and recreation purposes; and

—400,000 acres of vacant, unreserved and

unappropriated public lands for com-
Ch. 3 Federal Laws Affecting Access ● 45

munity centers and recreation areas

(with approval of selection by the Secretary of the Interior).

The Act confirmed prior Territorial grants

of university, mental health, and school lands

of over 1 million acres. It also transferred

miscellaneous parcels of Territorial government property to the State and gave the State

title to 35 million to 40 million acres of submerged lands.

The State received full mineral rights in all

lands granted or confirmed under the Act. All

State reconveyances of these lands must contain a reservation to the State of the mineral

rights and the right-of-access to extract them.

Alaska was permitted to select Federal lands

that were leased or in production under the

Mineral Leasing Act of 1920 and to succeed

to all rights of the Federal Government. In addition, the State received the following royalty rights on lands that remained in Federal

ownership:

—The right to receive 521/i percent of the

leasing proceeds from the Mineral Leasing Act of 1920 in lieu of participation in

the reclamation fund. (This grant was in

addition to the 371⁄2 percent of leasing

revenues paid to all public land States

for public road and educational purposes. Alaska thus received the right to

90 percent of all leasing profits from

public lands.)

—The right to receive 90 percent of Federal revenues from the operation of Government coal mines and coal leases

under the Alaska Coal Leasing Act of

1914.

In addition the State was given the right to

5 percent of the net proceeds from the sale of

public lands in Alaska for education purposes, and 70 percent of the net proceeds of

the Pribilof Islands fur trade.

The Alaska Native Claims Settlement Act

extinguished all Native claims to lands and

hunting and fishing rights based on aboriginal title or use. In exchange, the Alaska Indians, Aleuts, and Eskimos received: (1) the

right to select 44 million acres of unreserved

Federal lands, and (2) distributions from a

Native fund of $962.5 million.

The Act authorizes the establishment of 13

profit-making Native Regional Corporations.

The Regional Corporations administer distributions from the Native fund, hold title to

lands not specifically apportioned to Village

Corporations, and hold subsurface rights to

all selected lands. Village Corporations hold

title to surface rights in lands selected in and

around villages and receive disbursements of

funds and other revenues from the Regional

Corporations.

The 44 million acres were apportioned according to a complex formula. Village Corporations were allowed to select surface

rights to approximately 22 million acres of

land in and around existing villages on the

basis of population. Regional Corporations

received proportional shares of all remaining

lands. All subsurface rights (including mineral rights) are vested in the Regional Corporations.

The grant of mineral rights to the profitmaking Regional Corporations indicates an

intent that those resources might be developed, The Alaska Native Fund is also dependent on the development of mineral resources;

payments of a 2-percent overriding royalty on

all mineral-leasing revenues from State and

Federal lands (other than the National Petroleum Reserve) are to provide $500 million.

Section 17 of the Act established the

Federal-State Land Use Planning Commission

for Alaska. It is to identify necessary easements across lands selected by Regional and

Village Corporations. The Secretary of the Interior is to reserve such easements. No provisions were made for the reservation of easements across Federal lands to assure access

to Native lands. The subsequent order reserving extensive easements is the subject of

litigation. A tentative settlement has been

reached.

Section 17(d) of the Act provided for the

reclassification of all Federal lands in the
46 ● Analysis of Laws Governing Access Across Federal Lands

State. Under section 17(d)(2), the Secretary

was authorized to withdraw 80 million acres

of land for addition to or creation of national

parks, forests, wildlife refuges, and wild and

scenic rivers. To protect the national interest

in these lands, they were withdrawn from all

forms of appropriation under the public land

laws and the mining and mineral-leasing

laws, and from selection by the State under

the Alaska Statehood Act and by Native Regional Corporations under ANCSA. The authority for these withdrawals expired in December 1978. The Secretary was also authorized to withdraw other lands to protect

the public interest under the authority of section ii’(d)(l); these withdrawals did not affect

the right of Village Corporations, Regional

Corporations, or the State to make land selections within and around existing Native villages.

OTHER LAWS

In addition, three other laws relating to the

role of Federal land management in the development of energy resources in Alaska are examined. The Trans-Alaska Pipeline Act authorized an expedited procedure for granting

a right-of-way for the Alaska oil pipeline.

Judicial and administrative review of licensing and environmental proceedings were limited. The Act also required a reservation for

additional rights-of-way for compatible uses

on or adjacent to the pipeline right-of-way.

The Alaska Natural Gas Transportation Act

of 1976 provided a similar expedited procedure for the consideration of several proposals to construct a natural gas pipeline.

These expedited procedures provided for

coordinated review of right-of-way applications covering several different management

systems. The Naval Petroleum Reserve Production Act transferred jurisdiction over and

management of the Naval Petroleum Reserves in Alaska to the Department of the Interior. No provision was made for any rightof-way over the Reserve. The Secretary was

directed to make a study of the nonpetroleum

value of the reserve within 3 years.

Photo Credit: The Alaska Coalition

Construction of the Trans-Alaska Pipeline
Ch. 3 Federal Laws Affecting Access ● 47

FEDERAL LAND PLANNING AND ENVIRONMENTAL LAWS

The report also analyzes a set of Federal

land planning and environmental laws that

have, or were thought to have, an influence

on the availability of access for mineral resource development. The laws have varied effects. One, the Coastal Zone Management Act

(CZMA), requires the establishment of comprehensive land use planning. Two of these

laws, the Endangered Species Act and section 4(f) of the Department of Transportation

Act, place substantive constraints on the activities of Federal land managers.

The National Environmental Policy Act of

1969 (NEPA) places procedural requirements

on Federal land managers that often apply

during decisionmaking on access requests.

The Clean Air Act and the Clean Water Act

influence access in several ways: first, the

access project itself, i.e., construction and

transportation, must comply with applicable

standards; second, the mineral resource project for which access is granted must comply

with the Acts before a Federal land manager

may grant a permit; third, the Clean Air Act

places stricter standards on projects in and

near certain highly protected Federal conservation units (although the number of such

units in Alaska is less than commonly perceived and National Interest Lands legislation cannot create any of the most highly protected areas). NEPA requires that an environmental impact statement (EIS) must be prepared for major Federal actions significantly

affecting the quality of the human environment, and that Federal agencies consider the

environmental effects of and possible alternatives to a proposed action, consult with

other agencies, and solicit public comment.

NEPA imposes no specific environmental

Photo Cred/f: The Alaska Coa//r/on

North Slope tundra — late summer
standards or direct restraints on access to

non-Federal minerals. It does, however, exert

substantial indirect influence since Federal

land management agencies must comply with

NEPA in their review of requests for rightsof-way and other permits. Applicants may be

required to pay the costs of preparing an EIS

if approval is determined to be a major

Federal action.

Section 4(f) of the Department of Transportation Act of 1966 bars the use of Federal

funds for any transportation project that uses

any land of National, State, or local significance from any public park, refuge, or recreation area, or from any historic site unless

the Secretary of Transportation finds that

there is no prudent and feasible alternative to

such use and that the proposed project includes all possible planning to minimize harm

to the area involved. By restricting the expenditure of Federal funds, section 4(f) limits

the availability of lands owned by Federal,

State, or local governments and some privately owned historic sites, for transportation systems which, in some instances, could be necessary for mineral resource development.

Lands in the National Park System, the National Wildlife Refuge System, and the National Wild and Scenic Rivers System are

clearly within the protections of section 4(f).

Some public lands managed by the BLM and

National Forest System lands are also subject

to the restrictions of section 4(f) if the lands

are actually used or proposed for park, recreation, wildlife protection, or historic purposes, or are under study for wilderness or

wild and scenic rivers designation.
Ch. 3 Federal Laws Affecting Access ● 49

Section 7 of the Endangered Species Act requires that all Federal agencies ensure that

their actions do not jeopardize the continued

existence of any endangered or threatened

species or result in the destruction or modification of a critical habitat. Compliance

with the Act requires that any agency consider the effects a proposed action may have

on a protected species or habitat, and consult

with the Secretary of the Interior to determine whether any harm may result and what

steps may be taken to minimize any risk. In

areas that are home to unique and endangered species, the Act may impose substantial and additional constraints on Federal

land management agencies in the issuance of

rights-of-way across Federal areas. In other

areas where there are few or no endangered

species, the compliance requirements would

have a lesser effect on the actions of Federal

land managers.

The Clean Air Act establishes national

standards to limit the presence of five common air pollutants that present known risks

to human health and safety. Direct Federal

controls apply only to certain major new facilities with the potential to emit large quantities of these pollutants; all other polluters

are regulated by the States under plans designed to assure that the five national standards are met.

The Act imposes strict controls on the construction of new facilities in areas where air

quality is better than the national standards,

in order to prevent significant deterioration

of existing air quality. There are three

classes of “clean air” regions: Class I areas,

where minimal additional pollution is allowed; Class 11 areas, where moderate

amounts of new pollution are permitted; and

Class III areas, where pollution levels can be

increased to the national standards. The

Clean Air Act Amendments of 1977 classified

most clean air regions, including both Federal

and non-Federal lands, as Class 11. Some existing Federal parks and wilderness areas

are designated mandatory Class I areas (including one park and three wilderness areas

in Alaska); no d-2 lands are mandatory Class I

areas. Other large national parks, monuments, and refuges are Class 11 areas and

cannot be redesignated to Class III status.

There are two such areas in Alaska. It is anticipated that most Alaska National Interest

Lands will fall into this Class 11 subcategory

on enactment of d-2 legislation. The authority

to redesignate the classification of clean air

areas, with the exceptions noted above, is

vested in State governments. Federal land

managers have only an advisory role in the

redesignation process.

Preconstruction review of new sources and

modification of existing sources are carried

out at the State level. There are four types of

preconstruction review: (1) to assure the

maintenance of national ambient air quality

standards; (2) to assure compliance with applicable Federal new source standards; (3) to

prevent significant deterioration in clean air

areas; and (4) to assure compliance with the

special rules that apply to new sources of

pollution in areas that do not meet the national standards. In the last two instances,

preconstruction review may impose severe

controls on allowable new construction or,

perhaps, prevent it altogether.

The Clean Air Act requires that State air

pollution control agencies consult with the

appropriate Federal land manager on all applications for permits for major emitting facilities that may affect air quality in a Federal

Class I area. Applicants for rights-of-way

over Federal land management system lands

must agree to comply with State and Federal

air quality standards, not only in activities

associated with the use of the right-of-way,

but also in their operations in non-Federal

areas.

The Clean Water Act imposes Federal controls on all forms of water pollution. Every

“point source” of pollution, i.e., any enterprise that discharges pollutants into rivers,

lakes, or streams through pipes, conduits,

channels, and the like, is required to obtain a

discharge permit that prescribes allowable

levels of pollution. Some mines are regulated

as sources. “Nonpoint sources” of pollu-
50 ● Analysis of Laws Governing Access Across Federal Lands

tion—including the runoff from roads and

from agricultural, construction, and some

mining activities, are regulated at the State

and local level pursuant to local water pollution control plans.

The Act establishes a series of deadlines

for progressively more stringent controls on

point sources of pollution. It requires the

utilization of various levels of pollution control technology, By 1979, all point sources

must be using the “best practicable control

technology” and between 1983 and 1987 they

must begin applying the “best available technology” for various classes of pollutants. The

Environmental Protection Agency develops

guidelines on an industry-by-industry basis.

Effluent standards have been promulgated

for some mining activities including, for example, placer mines that use gravity separation to extract precious metals.

More stringent controls may be applied

where pollution discharges threaten Federal

and State water quality standards for specific waterways. An antidegradation policy

protects the water quality of streams and

rivers that already have clean water. The antidegradation program applies to both Federal and non-Federal areas. Right-of-way applicants must agree to comply with Federal

and State water quality standards and to obtain all necessary permits. This compliance

requirement not only applies to activities

associated with use of the right-of-way such

as road-building and bridge construction, but

also with the conduct of mining operations on

non-Federal sites.

The Coastal Zone Management Act provides incentives for States to develop comprehensive land management programs for

their coastal areas. Participating States

receive Federal grants to develop and administer their programs, as well as Federal

aid to offset the impact of energy development activities. All eligible States have

chosen to participate. To date, only two State

programs have been approved.

States participating in the CZMA program

must develop a plan for managing activities in

the coastal zone. The plan must include a definition of permissible land and water uses in

the coastal zone, proposals for protecting

areas of unique, scarce, fragile, or vulnerable natural habitat, and a process to ensure

that the State adequately provides for “consideration of the national interest” in the

siting of certain energy and resources development facilities, including associated transportation systems.

Once the State has adopted a plan that is

approved by the National Oceanic and Atmospheric Administration, it has a major effect on Federal activities in the coastal zone.

Federal activities must be “consistent to the

maximum possible extent” with the State

plan. This provision has a fourfold effect:

1. Direct Federal activities in the coastal

2.

3.

zone, including land management policies, must be consistent;

Federal development projects in the zone

must be consistent;

Applicants for Federal licenses and permits (such as right-of-way permits) must

secure State certification; and

4. Applicants for Federal assistance must

include the views of the State management agency with their proposals.

A State plan will not be approved unless

the State demonstrates that it has the authority to control land and water uses in the

coastal zone. The State may do this by direct

land and water use regulation, through local

implementation of State established standards subject to State administrative review,

or by State authority to disapprove all local

land and water use regulation. Transporta- ‘

tion and mining activities in the coastal zone

must comply with State coastal zone requirements.

The following chapters describe the requirements for obtaining rights-of-way

through the major Federal land management
Ch. 3 Federal Laws Affecting Access “ 51

systems for purposes of mineral resource

development on non-Federal lands. Several

laws relating to Federal lands in Alaska are

also included as background information. The

major Federal land planning and environmental laws affecting right-of-way applications

are also discussed. All references are current as of May 1978, and, in some instances,

more recent material has been added. This

report was structured as both a technical

reference for Congress in its consideration of

access issues in Alaska Lands legislation and

as a primer on rights-of way across Federal

lands for mineral resource development.

.

Photo Credft The Alaska Coa//t/on

Offshore Oil Production Rig, Cook Inlet
. —

4

Federal Land Management

Systems
— -. . .

/

Chapter 4.- FEDERAL LAND MANAGEMENT SYSTEMS “

Page

Public Lands ....... ...... o..... o 5 5

The BLM Organic Act . . . . . . . . . . . 56

Purposes for Which Rights-of-Way

May Be Granted. . . . . . . . . . . . . . 56

Information Requirements . . . . . . . 57

Environmental Impact Assessment. 57

Extent of Rights-of-Way . . . . . . . . . . 58

Right-o f-Way Fees. . . . . . . . . . . . . . 58

Financing Transportation Projects. 58

Terms and Conditions . . . . . . . . . . . 59

Suspension or Termination . . . . . . . 60

Other Conditions . . . . . . . . . . . . . . . 60

BLM Wilderness Study . . . . . . . . . . 60

Existing BLM Right-of-Way

Regulations . . . . . . . . . . . . . . . . . 63

Footnote References for Public Lands 64

National Park System . . . . . . . . . . . . . 67

General Authority for Rights-ofWay. . . . . . . . . . . . . . . . . . . . . . . 67

Statutes Providing forRights-ofWayThroughNationalParks . . . 69

Applications for Rights-of-Way. . . . 71

Rights-of-Way for Highways. . . . . . 71

Footnote References for National

Park System. . . . . . . . . ● . . . . . . . . . 72

National Wildlife Refuge System. . . . 73

Rights-of-Way Under Section 4 of

the Refuge Administration Act . . 74

Rights-of-Way Under Other

Statutes . . . . . . . . . . . . . . . . . . . . 74

Rights-of-Way for Transportation

Systems . . . . . . . . . . . . . . . . . . . . 75

Applications for Rights-of-Way. . . . 75

Footnote References for National

Wildlife Refuge System . . . . . . . . . 77

National Forest System. . . . . . . . . . . . 78

The BLM Organic Act. . . . . . . . . . . 78

The National Forest Transportation

System. . . . . . . . . . . . . . . . . . . . . 79

Page

Conflict Between Access Provisions

Roadless Area Review. . . . . . . . . . .

Footnote References for National

Forest System ● 

National Wild and Scenic Rivers

System ● eOm**e 

Administration of the System . . . . .

River Studies . . . . . . . . . . . . . , . . . .

Protections Afforded Wild and

Scenic Rivers. . . . . . . . . . . . . . . .

Rights-of-Way . . . . . . . . . . . . . . . . .

Footnote References for National

Wild and Scenic Rivers System . . .

National Wilderness Preservation

System . . . . . . . . . . . . . . . . . . . . . . .

Designation of Wilderness Areas. .

Activities in Wilderness Areas. . . .

Park Wilderness . . . . . . . . . . . . . . .

Wildlife Refuge Wilderness . . . . . .

BLM Wilderness . . . . . . . . . . . . . . .

Forest Wilderness. . . . . . . . . . . . . .

Wild and Scenic Rivers Wilderness

Management of Wilderness Study

Areas. . . . . . . . . . . . . . . . . . . . . .

Footnote References for National

Wilderness Preservation System. .

80

81

81

83

83

84

85

87

88

89

90

91

94

94

95

95

96

96

97

TABLES

Page

2. Component Rivers of the National

Wild and Scenic Rivers System. . 84

3. Rivers Designated as Potential

Additions to the National Wild

and Scenic Rivers System . . . . . . 85

4. Wilderness Areas in Alaska... . . . 89
Federal Land Management

Systems

The Bureau of Land Management (BLM) of

the Department of the Interior administers

the Nation’s public lands—those federally

controlled lands that have not been placed in

any other specific land management system.

As defined in the Federal Land Policy and

Management Act of 1976:1

The term “public lands” means any land

and interest in land owned by the United

States within the several States and administered by the Secretary of the Interior

through the Bureau of Land Management,

without regard to how the United States acquired ownership, except—

1. lands located on the Outer Continental

Shelf; and

2. lands held for the benefit of Indians,

Aleuts, and Eskimos, ’

Traditionally, BLM lands have been the least

restricted and regulated Federal lands, and

the most open to development and use.

The BLM manages about 60 percent (470

million acres) of all federally owned lands;

more than half of this area (over 295 million

acres) is in the State of Alaska.3 The BLM has

interim jurisdiction over public lands in

Alaska that have been selected by Alaska

Natives under the Alaska Native Claims Settlement Act4 (ANCSA) and lands selected by

the State under provisions of the Alaska

Statehood Act.5 It also manages lands curNote: Footnotes for this section appear on pp. 64-66,

LANDS

rently withdrawn for potential designation as

part of national conservation systems under

section 17(d)(2) of ANCSA. On final congressional disposition of the (d)(2) national interest lands, management of substantial acreage will be transferred to the National Park

Service, the U.S. Fish and Wildlife Service,

and the Forest Service.6

Final conveyances of Native and State

selections will further reduce acreage under

BLM management.7 Nevertheless, the BLM

will still have jurisdiction over millions of

acres of Alaska land. At present, all public

lands in Alaska that have not been selected

by Natives or the State or withdrawn for d-2

consideration by Congress have been withdrawn for classification under section

17(d)(l) of ANCSA. Scattered Native and

State selections have been made in mineralized areas surrounded by these so-called d-l

lands.8

BLM policies will influence decisions associated with mineral resource development on

non-Federal lands in Alaska. Until legislative

disposition of d-2 lands and final conveyance

of State and Native selections, the BLM will

administer more than 75 percent of all lands

in the State. After d-2 designations and final

land conveyances, it is likely that more than

100 million acres will remain under BLM administration. In many regions, access to non55
56 ● Analysis of Laws Governing Access Across Federal Lands

Federal lands for mineral resource development will involve transportation over and use

of BLM lands.

BLM ORGANIC ACT

The Federal Land Policy and Management

Act of 1976,9 commonly referred to as the

BLM Organic Act, restructured the public

land laws. It gives the BLM comprehensive

and explicit authority to manage public lands

and resources, and repeals many archaic and

overlapping statutes governing public land

withdrawal, disposal, and rights-of-way. Title

V of the BLM Organic Act sets forth right-ofway authorization for public lands administered by the BLM and for National Forest System lands.10 The term “right-of-way” as used

in the Act includes “an easement, lease, permit, or license to occupy, use, or traverse

public lands” for the purposes listed.ll Several sections of the BLM Organic Act bear on

the issue of access; of principal importance

for access are section 302, which is the general management authority for public lands;12

sections 501-511 (Title V), the Right-of-Way

authorization; 13 and section 603, BLM wilderness review.14

Until regulations and directives have been

issued under the authority of the BLM Organic Act, the old regulations remain in effect.

15 These regulations also specify the

general application procedure for rights-ofway and easements over lands administered

by the Fish and Wildlife Service and the Park

Service. l6

Section 302 of the BLM Organic Act17

authorizes the Secretary of the Interior to

regulate the use, occupancy, and development of public lands by several means, including easements, permits, licenses, and

leases. 18 The Secretary is directed to manage

the public lands according to land use plans

developed under section 20219 and to take action necessary to prevent unnecessary or undue degradation of the land. The Secretary

may permit Federal departments and agencies to occupy and develop public lands only

under the right-of-way provisions of section

50720 or under the withdrawal provisions of

section 204. 21 However, if proposed Federal

use and development are “similar or closely

related to” programs of the Secretary for the

lands involved, he may enter into cooperative

agreements under section 307(b).22

Enforcement of regulations—a serious

problem under earlier laws—is enhanced by

mandatory provisions in all permits. All instruments providing for use or occupancy of

public lands must contain a provision allowing revocation after notice and hearing for

violation of any terms or conditions including

compliance with the applicable State or Federal air or water quality standards or implementation plans .23

PURPOSES FOR WHICH

RIGHTS-OF-WAY MAY BE GRANTED

Title V of the BLM Organic Act authorizes

the Secretary of the Interior “to grant, issue,

or renew rights-of-way over, upon, under, or

through” public lands, except lands designated as wilderness. 24 The purposes for

which a right-of-way may be issued include:

1.

2.

3.

4.

Reservoirs, canals, ditches, flumes, laterals, pipes, pipelines, tunnels, and other facilities and systems for the impoundment, storage, transportation, or

distribution of water;

Pipelines and other systems for the

transportation or distribution of liquids

and gases, other than water and other

than oil, natural gas, synthetic liquid or

gaseous fuels, or any refined products

produced therefrom, and for storage

and terminal facilities in connection

therewith;

Pipelines, slurry and emulsion systems,

and conveyor belts for transportation

and distribution of solid materials, and

facilities for the storage of such materials in connection therewith;

Systems for generation, transmission,

and distribution of electric energy, ex-
Ch. 4 Federal Land Management Systems ● 57

5.

6.

7.

cept that the applicant shall also comply

with all applicable requirements of the

Federal Power Commission under the

Federal Power Act of 1935 (49 Stat. 847;

16 U.S.C. 791);

Systems for transmission or reception of

radio, television, telephone, telegraph,

and other electronic signals, and other

means of communication;

Roads, trails, highways, railroads, canals, tunnels, tramways, airways, livestock driveways, or other means of

transportation except where such facilities are constructed and maintained in

connection with commercial recreation

facilities on lands in the National Forest

System; or

Such other necessary transportation or

other systems or facilities which are in

the public interest and which require

rights-of-way over, upon, under, or

through such lands.25

INFORMATION REQUIREMENTS

An applicant for a right-of-way is required

to submit and disclose plans, contracts,

agreements, and other information reasonably related to the use or intended use of the

right-of-way. 26 In addition to any other information necessary to the determination of

whether the right-of-way should be issued

and what terms and conditions it should contain, the Secretary may require a statement

of the effect on competition of the grant of

right-of-way .27 If the applicant is a partnership, corporation, association, or other business entity, information concerning the identity of the participants and the financial

structure and control of the entity must be

disclosed. 28

ENVIRONMENTAL IMPACT

ASSESSMENT

If the Secretary determines that the use of

a proposed right-of-way may have a “signifiPhofo Cmdt: OTA Staff

Road to former gold mine now provides recreational access, Hatcher Pass, near Palmer, Alaska
58. Analysis of Laws Governing Access Across Federal Lands

cant impact on the environment, ” the applicant is required to submit a plan for construction, operation, and rehabilitation for the

right-of-way. 29 If, in addition, the Secretary

determines that the grant of a right-of-way is

a major Federal action “significantly affecting the quality of the human environment,”30

the agency must prepare an environmental

impact statement (EIS) under the National Environmental Policy Act (NEPA).31 The applicant may be required to bear the costs of the

EIS preparation as part of the costs of administration. 32

EXTENT OF RIGHTS= OF= WAY

The right-of-way is limited to the grounds

occupied by the facilities for which the grant

was issued and that are necessary for the

operation, maintenance, or safety of the project and will do no unnecessary damage to the

environment. 33 The temporary use of additional land may be authorized as necessary

for construction, operation, maintenance, or

termination of the project, or for access purposes.

34 The right-of-way is granted for a

reasonable term considering the cost of the

facility, its useful life, and any public purpose

it serves .35 The right-of-way specifies whether

it is renewable and the terms and conditions

of renewal.36

The Secretary is authorized to issue regulations for rights-of-way.37 These regulations

may be applied to any existing rights-of-way

renewed under the new BLM Act.38 The holder of a right-of-way may use mineral, timber,

or vegetative resources of the right-of-way

lands in connection with construction or

other purposes only if authorization is obtained under applicable laws.39

RIGHT- OF- WAY FEES

The holder must pay annually, in advance,

the fair market value of the right-of-way.40

When the value is less than $100, the Secretary may require advance payment for

more than 1 year at a time.41 The holder or applicant may be required to reimburse the

agency for “all reasonable administrative

and other costs incurred in processing the application for such right-of-way and in the inspection and monitoring of construction, operation, and termination of the facility pursuant to such right-of-way.”42 The requirement of rental payment and reimbursement

of costs may be waived if a reciprocal rightof-way is granted to the United States by the

holder in connection with a cooperative costshare program.43 Federal, State, or local government units; nonprofit associations; nonprofit corporations that are not owned or controlled by profitmaking corporations or business enterprises; holders who provide at no

or reduced cost a benefit to the public or to

the programs of the Secretary; or holders

who already are compensating the United

States for authorized use or occupancy of

Federal land, may be granted a right-of-way

at a lesser charge, or no charge, as the Secretary finds to be equitable and in the public

interest. 44 Assignments of free or reduced

rental rights-of-way must be approved by the

Secretary .45 When appropriate, the holder

may be required to furnish a bond or other

satisfactory security to secure any or all of

the obligations imposed upon him by statute,

regulations, rules, or the terms or conditions

of a specific right-of-way.46 The Secretary

may issue or renew a right-of-way only when

he is satisfied that the applicant has the necessary technical and financial capability to

construct the project in accordance with the

requirements of the Act.47

FINANCING TRANSPORTATION

PROJECTS

The BLM Organic Act provides several arrangements for financing transportation and

other projects on public lands. The Secretary

is authorized to acquire or construct roads

within or near the public lands that will permit maximum economy in timber harvesting

in the area and at the same time meet requirements for the protection, development,

and management of the lands for utilization
Ch. 4 Federal Land Management Systems ● 59

of other resources.48 Financing for these

timber roads near or on public lands may be

accomplished (a) from appropriated Department of the Interior funds, (b) by requirements on purchasers of timber and other public land resources, (c) by cooperative financing agreements with Federal, State, local, or

private agencies, or persons, or (d) by a combination of these three methods.49 However,

when roads are required to meet higher technical standards than necessary for timber or

resource removal, the purchasers of timber

and resources will not be required to bear the

costs necessary to meet the higher standards

unless the resource is offered under the condition that a road of that specified standard

be built.50 The Secretary may make such arrangements as necessary to this end. The Secretary may also require the users of roads,

trails, lands, or other facilities administered

by the Bureau to maintain the land or facilities in a satisfactory condition “commensurate with use requirements of each.”51

Costs assessed to each user must be proportionate to total use. The Secretary may require reconstruction of existing roads or facilities when necessary to accommodate a

use, but if the reconstruction or maintenance

cannot be provided by the user or is impractical, the Secretary may require a deposit in

an amount sufficient to cover a proportionate

share of costs.52

TERMS AND CONDITIONS

In addition to the requirements described

above, each right-of-way must contain certain mandatory terms and conditions that are

necessary to:

I.

II.

III.

Carry out the purposes of the BLM Act

and related rules and regulations;

Protect the environment and minimize

damage to scenic and esthetic values,

and to fish and wildlife habitats;

Require compliance with air and water

quality standards established pursuant

to Federal or State laws; and

IV.

Each

Require compliance with State standards for public health and safety, environmental protection, and siting, construction, operation, and maintenance

of rights-of-way for similar purposes, if

those standards are more stringent

than Federal standards .53

right-of-way must also contain any specific additional conditions that the Secretary

deems necessary for:

1.

2.

3.

4.

5.

6.

Protection of Federal property and economic interest;

Efficient management of the lands subject to and adjacent to the right-of-way,

and protection of other lawful users of

the lands involved;

Protection of life and property;

Protection of fish, wildlife, and other

biotic resources of the area for subsistence users;

Location of rights-of-way along routes

that will cause the least damage to the

environment taking into consideration

feasibility and other relevant factors;

and

Protection of the public interest in lands

traversed by the- right-of-way or adjacent thereto. 54

In order to minimize adverse environmental

impacts and the proliferation of rights-ofway, the BLM Act requires the utilization of

rights-of-way in common to the extent practical. 55 Each right-of-way permit must contain

a provision reserving to the Secretary the

right to grant additional rights-of-way or permits for compatible uses on or adjacent to the

original right-of-way.56 The Secretary may

designate right-of-way corridors and require

that all rights-of-way be confined to that corridor. In making this designation the Secretary is required to consider National and

State land use policies, environmental quality, economic efficiency, national security,

safety, and good engineering and technological factors.57 The Secretary must issue regulations containing the criteria and proce-
60 ● Analysis of Laws Governing Access Across Federal Lands

dures he will use in designating such corridors. Existing utility and transportation corridors may be designated for such uses under

this subsection without further review.58 This

provision allows expanded multipurpose use

of existing criteria.

SUSPENSION OR TERMINATION

A right-of-way may be suspended or terminated for abandonment59 or noncompliance

with statutory requirements or with the applicable conditions, rules, or regulations for

rights-of-way. 60 Holders of a right-of-way

must receive due notice prior to a finding of

abandonment or noncompliance. Holders of

an easement are entitled to an administrative

proceeding under section 554 of Title 5 of the

United States Code before termination or suspension. 6l

Existing rights-of-way or rights-of-use are

not terminated by the BLM Act, but with consent of the holder, they may be canceled and

reissued under the terms and conditions of Title V.62 When the Secretary issues a right-ofway for railroad and communications facilities in a realinement of the railroad, he may

require that the applicant relinquish any existing right-of-way if he finds that the requirement is in the public interest, and the lands

involved are not within an incorporated community and are of equal values. He may, in

lieu of the provisions of Title V, provide for

the same terms and conditions in the new

right-of-way with respect to rental, duration,

and nature of interest in the lands granted, as

were applied to the relinquished right-of-way.

Action on such a trade is to be made within 6

months of the receipt of all information required by Title V.63

OTHER CONDITIONS

When an applicant is before Federal departments or agencies, other than the Department of the Interior or the Department of

Agriculture, seeking a license, certificate, or

other authority for a project that involves a

right-of-way over, upon, or through public

lands or national forests, the applicant must

simultaneously apply to the appropriate Secretary for permission to use public lands and

provide all information submitted to the other

department or agency.64 After enactment of

the BLM Organic Act, all rights-of-way

sought over public lands or national forests,

for purposes listed in section 501 must be

issued in accordance with the requirements

of Title V. This provision is a direct limitation

on any other laws not repealed by the Act

that would grant a right-of-way over public

lands. 65

Federal departments and agencies may obtain use of public lands under the provisions

of Title V subject to such terms and conditions as the Secretary may impose. 66 Any action to terminate or limit the use of a right-ofway reserved for use by a Federal department or agency must be done with the consent

of the head of the department or agency.67

BLM WILDERNESS STUDY

Section 603 of the Act provides for wilderness study of certain BLM lands.68 When

the Wilderness Act was passed in 1964, the

Park Service, the Fish and Wildlife Service,

and the Forest Service were all required to

inventory lands under their control to determine whether any meet the wilderness requirements set forth in section 2(c) of that

Act. 69 BLM lands were not affected.70 Section

603 provides the framework for a survey of

almost all BLM lands to determine if any

should be considered for inclusion in the National Wilderness Preservation System.

Section 201(a) of the Organic Act requires

a complete inventory of public lands, including their resource and other values, with

priority given to areas of “critical environmental concern."71 Within 15 years of the

effective date of the Act (October 21, 1976),

the Secretary of the Interior must review all

roadless areas of over 5,000 acres and all

roadless islands72 that were identified in the

section 201 inventory as having wilderness
Ch. 4 Federal Land Management Systems .61

characteristics; he must then report to the

President on their suitability for preservation

as wilderness. All areas formally identified

by the BLM as “natural” or “primitive”

areas prior to November 1, 1975, must be reviewed, and a wilderness recommendation

made to the President by July 1, 1980.73

Before recommendations to the President

can be made, the Geological Survey and the

Bureau of Mines must conduct a survey to

determine any mineral values of a specific

area prior to its recommendation for wilderness designation.74 Review of these areas

will be conducted under provisions of section

3(d) of the Wilderness Act.75 The President is

required to advise Congress of his recommendation on the wilderness status of each area

within 2 years of receipt of each report from

the Secretary .7’

BLM lands that are designated by Congress as components of the National Wilderness Preservation System will be subject to

provisions of the Wilderness Act applicable

to national forest wilderness areas.77 Wilderness designation will remove the authority

of the Secretary of the Interior to grant

rights-of-way under Title V.78 However, BLM

wilderness areas would be subject to the

limited provision for presidentially granted

national interest exceptions that is applicable

to national forest wilderness areas.79

While the status of wilderness lands is

clearly defined, there is some uncertainty

about lands that are being reviewed for wilderness characteristics and lands that have

been placed in “wilderness study” by BLM.80

Section 603(c) requires that areas under review for potential wilderness designation be

managed “in a reamer so as not to impair the

suitability of such areas for preservation as

wilderness. ‘*1 However, this protective management is subject to the continuation of “existing mining and grazing uses and mineral

leasing in the manner and degree in which

the same was being conducted on the date of

approval of this Act. ’ ’82 This implies that some

existing activities are allowed to continue.

But, immediately following that sentence is

the proviso that, “in managing the public

lands, the Secretary shall by regulation or

otherwise, take any action required to prevent unnecessary or undue degradation of the

lands and their resources or to provide environmental protection."83 This protection does

not extend to withdrawal from appropriation

under the mining laws; the Secretary may

make such withdrawals only “for reasons

other than preservation of this wilderness

character." 84 

With few exceptions, all 470 million acres

of land managed by the BLM initially are subject to the provisions of section 603. In order

to avoid bringing all activities on BLM land to

a halt, the Bureau has adopted a two-phase

policy for identifying and protecting lands

with wilderness potential. The first phase is a

wilderness inventory:

Every resource managed by the BLM has

an inventory. (For purposes of wilderness review, “inventory’ means the examination

and display of areas on maps and in narratives that are considered to be (a) roadless,

(b) have wilderness characteristics, and (c)

are 5,000 acres or more, or of sufficient size

to make wilderness management practical,

or are public land islands.)85

BLM plans to complete an accelerated wilderness inventory by July 1980.86 The inventory will emphasize roadless areas and roadless islands in the 11 Western States. According to the draft proposal, “Alaska inventory

will be postponed until Native claims land

tenure has been finalized.”87

It is not clear what level of protection will

be afforded lands during the wilderness review. An Organic Act directive states that all

environmental assessment reports and environmental statements must include a discussion of potential wilderness resources that

might be affected by a proposed action.88

However, it gives no indication of what actions should be taken in response to threats to

wilderness potential. The draft wilderness

policy document states:

During the wilderness review, multiple use

activities [including access) will continue
62 w Analysis of Laws Governing Access Across Federal Lands

with advanced planning to protect the existing wilderness designation potential of areas

or islands. Environmental assessment records or environmental statements prepared

on activities will include discussion of the

wilderness resource where appropriate. The

discussion will cover values per section 2(a)

and (c) of the Wilderness Act of September 3,

1964 (Public Law 88-577). Environmental

controls or modifications in proposed actions

will be made if necessary to protect wilderness values.89

At the end of the wilderness inventory,

those roadless areas with wilderness characteristics will be designated “wilderness study

areas:”

A roadless area which has been found to

have wilderness characteristics (thus having

the potential of being included in the National Wilderness System), and which will be

subjected to intensive analysis in the Bureau’s planning system, and public review to

determine wilderness suitability, and is not

yet the subject of a congressional decision

regarding its designation as wilderness.90

It is reasonable to expect that “wilderness

study areas, ” as opposed to areas merely

under review, will receive the full scope of

section 603(c) protections of their wilderness

characteristics. Preliminary views about

some of the permissible limitations have been

spelled out in a memorandum issued by the

Deputy Solicitor.91 On the issue of access to

private lands, the memorandum stated:

In general, access across public lands can

only be granted under Title V of FLPMA, and

the granting of this right-of-way is discretionary with the Secretary. Section 603 limits

the discretionary authority of the Secretary

by allowing him to grant access only when it

will not impair the suitability of the area

under review for wilderness designation. See

also section 302, which provides, in pertinent

part:

Except as provided in . . . section 603 . . .

and in the last sentence of this paragraph, no

provision of this section or any other section

of this Act shall in any way amend the Mining Law of 1872 or impair the rights of any

locators or claims under the Act, including,

but not limited to, rights of ingress and

egress. In managing the public lands, the

Secretary shall, by regulation or otherwise,

take any action necessary to prevent unnecessary or undue degradation of the lands.

Currently, the Solicitor’s Office is preparing a memorandum involving the Secretary’s

authority to regulate access to and from mining claims. In regard to existing access

across wilderness study lands to private

property, it is my opinion that any legal opinion is best given after applying each separate factual situation to the criteria of section 603.92

The gist of the opinion is that the Secretary

has full discretion to deny, and might even be

forced to do so by section 603, requests for

access from all persons except locators under the Mining Law, who he could regulate

under the provisions of section 302. Only

three existing uses are specifically protected

by the section—mining, grazing, and mineral

leasing—there is no mention of existing access. Of these, only mining could conceivably

occur off public lands and receive protection,

because patenting a mining claim would take

it out of Federal lands while preserving rights

to ingress and egress.

The opinion also raises the point that, in

some instances, land uses might be under a

more stringent system of controls during the

review period than after congressional designation as wilderness.93 Access to private

lands may prove to be one of these instances.

During the review period, access decisions

are governed solely by Title V as affected by

section 603. Section 603 requires management “so as not to impair the suitability of

such areas for preservation as wilderness.”94

After designation as wilderness, section

4(d)(4) of the Wilderness Act would apply,

allowing the President to grant a right-ofway:

Within wilderness areas in the national

forests designated by this Act, (1) the President may, within a specific area and in accordance with such regulations as he may

deem desirable, authorize prospecting for

water resources, the establishment and

maintenance of reservoirs, water conservation works, power projects, transmission
Ch. 4 Federal Land Management Systems ● 63

lines, and other facilities needed in the public interest, including the road construction

and maintenance essential to development

and use thereof, upon his determination that

such use or uses in the specific area will better serve the interests of the United States

and the people thereof than will its denial . . .95

EXISTING BLM RIGHT-OF-WAY

REGULATIONS

Existing BLM right-of-way regulations,

issued under the general authority of the

Department of the Interior to manage the

public lands,96 provide the general institutional framework for the application and

review process for rights-of-way on lands

under BLM jurisdiction. The Fish and Wildlife Service and Park Service follow the BLM

regulations, however, application is made

directly to the managing agency.97 These

regulations cover all non-Federal applicants

seeking rights-of-way, including State and

local governments; Federal agencies now

may obtain rights-of-way under the provisions of section 507 of the BLM Organic Act.98

An applicant must file an application with

the BLM listing the statute authorizing the

right-of-way, the primary purpose for which

it is sought, and the date on which any prior

unauthorized use began.99 The applicant

agrees to accept the terms and conditions set

forth in the regulations100 and deposits a

nonreturnable fee based on the length of the

right-of-way. 101 A map of the area indicating

the extent of the right-of-way must be included with the application along with data

about the planned developments projects.102

Information concerning citizenship,103 disclosure of control, and financial status of business entities is required. 104

The applicant must reimburse the Government for administrative costs incurred in

processing the application including preparation of reports and statements required under

NEPA if the approval of the application is

determined to be a major Federal action significantly affecting the environment. ’05 Upon

receipt of the application, an estimate is

made of anticipated administrative costs. If

the costs are greater than the initial payment

by an amount exceeding the cost of maintaining actual cost records for the application,

periodic payments of costs may be requested. 106 If the application is rejected or

withdrawn, the applicant is assessed the

costs incurred to that point.107

In order to assist actual and potential applicants, the regulations provide that a person may request, prior to submitting an application, a nonbinding estimate of the anticipated administrative and other costs expected to be incurred.108 On approval of the

application, the holder must make payment

based on the length of right-of-way and must

reimburse the agency for costs of monitoring

the construction, operation, maintenance,

and termination of the right-of-way and for

the costs of protecting and rehabilitating the

lands involved.109 A bond or other security

may be required to assure payment of costs

or satisfaction of the conditions of a right-ofway.

110 The charge for use and occupancy of a

right-of-way is set by the regulations at the

fair market value of the permit, right-of-way,

or easement as determined by the appropriate officer, but not less than $25 per 5-year

period.111

The terms and conditions set forth in the

regulations generally provide for:

1.

2.

3.

Compliance with Federal and State laws

and regulations applicable to the lands

or right-of-way project.112

Compliance with regulations and directives of the supervising officer of the

agency with respect to clearing and restoring land, public safety, protection of

property and environmental values, fire

prevention, and payment for the use of

timber or mineral resources of the rightof-way. 113

Acceptance of any additional special

conditions necessary to make the grant

of a right-of-way compatible with the

public interest.114

.
64 ● Analysis of Laws Governing Access Across Federal Lands

4.

5.

Acceptance of the condition that use of

the right-of-way will not “unduly interfere with management or administration

of lands affected by it, ” and that the

right-of-way may be modified or terminated by the Secretary if its use conflicts

with other works constructed by authority of the United States. 115

Agreement to pay for all damage to U.S.

property and ‘to indemnify the United

States for any liability for damages for

injury to property or person arising from

use of the right-of-way. ’*G

The right-of-way granted under these regulations, unless otherwise provided by statute,

does not convey a property interest in the

lands involved, only a right to use the public

lands for a specific purpose.117 The right-ofway may be terminated by a specific order of

cancellation for noncompliance with conditions of the grant, ’*8 non-use, abandonment, **g

or failure to proceed with timely construction

of the project for which the right-of-way was

issued, 120 or when use of the right-of-way conflicts with other authorized uses,121 or unduly

interferes with the management and administration of the affected lands. *22

FOOTNOTE REFERENCES FOR PUBLIC LANDS

‘Public Law 94-579, 90 Stat. 2743, 43 U.S.C. 1701 et

seq. (1977 supp.).

2

43 U. S.C. 1702(e). Public lands are divided into

public domain lands which have never left Federal

ownership, and acquired lands which are lands in

Federal ownership which are not public domain and

have been obtained by the Government through purchase, condemnation, gift, or exchange. “Lands” includes all interests in land—such as surface ownership, mineral rights, timber rights, and easements.

3Department of the Interior, Bureau of Land Management, Public Land Statistics 1976, pp. 20-21.

‘Public Law 92-203,85 Stat. 688 (1971).

‘Public Law 85-508, 72 Stat. 339 (1958), as amended

77 Stat. 223 (1963),

“Exact acreages will be determined by Congress.

7Conveyance of Native selections is now expected to

take until 1981 or beyond. See testimony of Guy Martin,

Hearings Before Subcommittee on General Oversight

and Alaska Lands of House Committee on Interior and

insular Affairs, 95th Cong., 1st sess., July 21, 1977.

‘See maps of land status and d-2 proposals in OTA

working paper by John W. Whitney and Dennis Bryan,

Assessment of Transportation Access Requirements for

Minerals Exp~oration and Mine Development and Operation in Alaska, in Analysis of Laws Governing Access

Across Federal Lands: Options for Access in Alaska,

Volume 11, Working Papers (OTA-M-76).

’43 U.S.C. 1701 et seq.

’

0

43 U.S.C. 1761-1771.

’143 U.S.C. 1702(f),

’

2

43 U.S.C. 1732.

1343 U.S,C. 1761-1777.

1443 U.S.C. 1782.

15 Section 310 of the Act, 43 U.S.C. 1740, requires that

the Secretary promulgate rules and regulations implementing the Act in accordance with the provisions of

the Administrative Procedure Act. The last sentence of

the section states:

Prior to the promulgation of such rules and

regulations, such lands shall be administered

under existing rules and regulations concerning

such lands to the extent practical.

The Bureau has adopted a policy of issuing Organic Act

Directives (OADS], approved by its FLPMA Policy Committee, to provide guidelines for carrying out specific

activities affected by the Organic Act prior to the completion of formal rulemaking, BLM, The Federal Land

Management Policy Act: An Interim Report—Oct. 21,

1976 to June 30, 1977, 1977, p. 7.

1’43 CFR Part 2800, Regulations for Fish and Wildlife

Refuges are also found at 50 CFR 29.

’

7

43 U.S.C. 1732.

1843 u.S.C. 1732(b).

’

9

43 U.S. C. 1712.

2043 U.S.C. 1767.

Z143 u.S.C. 1714(b).

2243 U.S.C. 1737(b), Section 302(b) states in part:

“Provided, that unless otherwise provided for by law,

the Secretary may permit Federal departments and

agencies to use, occupy, and develop public lands only

through rights-of-way under section 507 of this Act,

withdrawals under section 204 of this Act and, where

the proposed use and development are similar or closely related to the programs of the Secretary for the

public lands involved, cooperative agreements under

subsection (b) of section 307 of this Act. ”

2343 UOS. C. 1732(c).

2“43 U.S.C. 1761(a).

z51d.

2s43 u.s.c. 1761(b)(l).
Ch. 4 Federal Land Management Systems ● 65

z71do

2843 u.s.j’. 1761(b)(2).

2943 U.S.C. 1764(d). OAD 76-15, Dec. 14, 1976, supra,

note 15, requires that applications indicate whether a

right-of-way will have any impact on roadless areas of

more than 5,OOO acres or “areas of critical concern. ”

Another directive, OAD 7629, Mar. 15, 1977, requires

all environmental assessment reports to discuss impacts on potential wilderness. See discussion of section

603 of the Act below.

3042 U.S.C. 4332(2)(C).

3142 U,S. C, 4321 et seq. See the discussion Of NEpA in

this report.

3243 U.S.C. 1764(g), See also, existing BLM right-ofway regulations at 43 CFR 2800.

3’43 U.S.C. 1764(a).

“Id.

3543 U.S.C. 1764(b).

“Id.

3743 U.S.C. 1764(e).

381d.

3943 U.S, C. 1764(f).

’043 U.S.C. 1764(g).

“Id.

“Id,

“Id.

“Id,

“Id.

4843 U,S.C. 1764(i).

4743 U.S.C. 1764(j).

4843 U.S.C. 1762(a).

qgId,

5oId.

5143 U.S.C. 1762(c).

‘

z

Id.

5343 U.S. C. 1765(a).

5443 U.S.C. 1765(b).

5543 U.S. C. 1763.

561d<

571d.

581d,

59A “rebuttable presumption of abandonment” arises

when the holder fails to use the right-of-way for the

purpose for which it was granted for a continuous 5-

year period, 43 U.S,C. 1766.

’43 U.S. C. 1766.

“]This distinction between an easement and a rightof-way is not explained in the BLM Act. See Morrison,

“Rights-of-Way on Federally Owned Lands: A Journey

Through the Statutes by Way of the Federal Land Policy and Management Act of 1976, ” 9 Transportation

Law Journal, 97,103 [1977).

5243 U.S.C. 1769(a).

’

3

43 U.S.C. 1769[b).

“43 U.s.c. 1771$

EJ543 U.S. C, 1770(a). Section 28 of the Mineral Leasing

Act, 30 U.S.C. 185, relating to oil and gas pipelines, and

the Federal Power Act, 16 U.S.C. 791-825, relating to

pipelines and water projects, are not of great importance here; but both provide additional authorization

for rights-of-way over public lands. See Morrison,

supra, note 61, at 105-109.

’43 U.S.C. 1767(a).

8743 U.S.C. 1767(b).

’43 U.S.C. 1782. Lands covered by the Act of August

28, 1937, 43 U.S,C. l181(a) to l181(j) and the Act of

May 24, 1939, 50 Stat, 753, are not affected by this provision, see section 701(b). The Bureau has yet to issue

any rules regarding the Wilderness Study. Current policy regarding the study is contained in the following

documents: BLM, Draft Proposed Wilderness Policy

and Review Procedure, Feb. 27, 1978 (Draft); Office of

the Solicitor, Application of Mining and Grazing Laws

to Areas Under Review for Inclusion into Wilderness

System: Section 603, Federal Land Policy and Management Act of 1976, Jan. 8, 1978 (Opinion), and the following Organic Act Directives: OAD 76-15, Dec. 14, 1976;

OAD 77-21, Feb. 16, 1977; and OAD 77-29, Mar. 15,

1977.

6gWilderness Act, Public Law 88-577, 78 Stat. 89,

Sept. 3, 1974, 16 U.S.C. 1131 et seq.

TOThe Bureau established two land classification

categories—primitive areas and natural areas—in

which use and activity were severely restricted, 43 CFR

6221 (primitive areas) and 43 CFR 6225 (natural areas).

The criteria for selection were similar to those used for

wilderness. There are 11 primitive areas containing

234,000 acres and 44 natural areas containing 271,000

acres. See Draft, pp. 15-16; supra, note 68.

7]43 U.S.C. 1711(a). “Areas of critical environmental

concern’ are defined as: “areas within the public

lands where special management attention is required

(when such areas are developed or used or where no

development is required) to protect and prevent irreparable damage to important historic, cultural, or

scenic values, fish and wildlife resources or other

natural systems or processes, or to protect life and

safety from natural hazards. ” 43 U.S. C. 1702[a).

72BLM has formulated the following definitions of the

key terms “public land island” (equivalent to roadless

island), “road,” and “roadless area. ” Draft, pp. 9, 10;

supra, note 68:

Public Land Island: A body of land above the ordinary high-water elevation of any meanderable

body of water, except those islands formed in navigable bodies of water after the date of admission

of the State into the Union.

Road: For the purpose of the wilderness inventory, a road is defined as and must meet all of the

following: An access route that has been improved

and maintained by using hand or power machinery

or tools to insure relatively regular and continuous

use. A way maintained solely by the passage of vehicles does not constitute a road.

Words and phrases used in the above definition

of “road” are defined as: Improved and Maintained: Where actions have been and will continue

to be directed to physically keep the road open to

traffic. Relatively regular and continuous use: Use

by vehicles having four or more wheels that has
66 “ Analysis of Laws Governing Access Across Federal Lands

occurred and will continue to occur on a recurring

basis, for a predetermined, planned, or intended

purpose. (An example would be access for equipment to maintain a stock water tank, Casual or

random use by off-road vehicles or recreationists

does not qualify,)

Roadless Area: That area bounded by a road

using the edge of the physical change that creates

the road or the inside edge of the right-of-way as a

boundary.

7343 U.S.C. 1782(a),

“Id.

751d. Section 3(d] of the Wilderness Act is found at 16

U.S.C. l132(d).

7643 U,S.C. 1782(b).

7743 U.S.C. 1782(c).

7843 U.S.C. 1761(a).

7

’16 U.S.C, l133(d)(4),

Vhe Act discusses protective actions the Secretary

may take “during the period of review of such areas

and until Congress has determined otherwise. ” 43

U,S.C. 1782(c). BLM policy, as reflected in the Draft, indicates a two-step process involving a wilderness inventory and wilderness study of areas selected from

that inventory, see text accompanying notes 85-90, The

BLM review process indicates that much importance is

placed on making early “negative declarations” about

areas that should not be subject to section 603 protection. Draft, p. 11; supra, note 68.

8143 U.S. C. 1782(c).

8zIde

“’Id,

a41d.

*

sDraft, p. 7,

*6Draft, p. 17.

i’PId,

‘80AD 77-29, Mar, 15, 1977, supra, note 15.

a9Draft, p. 12.

‘Draft, p. 10, Primitive and natural areas, supra,

note 70, have been classified as “Instant Study Areas, ”

meaning that they will be treated as wilderness study

areas right now, without the need for a wilderness inventory. Draft, p. 7.

“Opinion, supra, note 68.

‘20pinion, p, 11.

‘

3

0pinion, p. 5.

’43 U,S.C. 1782(c).

9516 U.S, C. 1133(d)(4). This provision, and all other

provisions of the Wilderness Act relating to national

forest wilderness areas, are applied to BLM wilderness

areas by section 603.

9GThe regulations are found at 43 CFR part 2800. See

supra, note 15, for a discussion of the current applicability of these regulations. OADS have been issued for

“Processing of Right-of-Way and Temporary Use Applications” (OAD 76-15; Dec. 14, 1976); “Right-of-Way

Cost Recovery” (OAD 76-15; Dec. 15, 1976); “Processing Pending Applications for Airport Leases” (OAD

77-8; Jan. 24, 1977); and “Valuation of Non-linear

Rights-of-Way for Communication Purposes” (OAD

77-3o; Mar. 15, 1977). Laws cited as underlying authority for the BLM right-of-way regulations are 5 U.S.C.

301,43 U.S.C. 2, and 43 U.S.C. 1201. See 43 CFR 2802.1 -

l(a).

“Fish and Wildlife Service regulations are found at

50 CFR 29.21.

9843 U.S. C. 1767.

9943 CFR 2802,1-l(a),

‘W43 CFR 2801.1-5,

10143 CFR 2802.1-2(a)(3).

10243 CFR 2802.1-5(a).

1°343 CFR 2802.1-4(a).

‘W43 CFR 2802.1-3,2802. l-4(b).

10543 CFR 2802.1 -2(a](l). OAD 76-15 states that except for exclusion of management overhead, the policy

embodied in the regulations is consistent with FLPMA

requirements for cost recovery.

IW43 CFR 2802. l-2(a)(4).

10743 CFR 2802.1 -2(a~6).

‘m43 CFR 2802.1 -2(aX9).

‘

0

’43 CFR 2802. 1-2(b).

11043 CFR 2802.1 -2(a)(n) and (12). Provisions requiring payment of costs, fair market or rental value, and

bonding do not apply to State and local government applicants for rights-of-way for public purposes, pursuant

to road use or reciprocal road use agreements or to

Federal agencies. 43 CFR 2802.1 -2(a12), 2802.1-7.

1“43 CFR 2802.1-7.

1’243 CFR 2801.1-5(a).

11343 CFR 2801. l-5( b),(c), (d),(e), (g),and (i),

‘

]443 CFR 2801.1-5(h).

1’543 CFR 2801 .1.2 -5(e].

1’643 CFR 2801 .1-5( f].

“

7

43 CFR 2801,1-1.

“

8

43 CFR 2802,3-1.

’“43 CFR 2802.2-3.

‘

2043 CFR 2802.2-2.

12143 CFR 2801.1-5(m).

12243 CFR 2801.1-5(1).
Ch. 4 Federal Land Management Systems ● 67

NATIONAL PARK SYSTEM

The National Park System embraces over

25 million acres (7 million acres in Alaska)’ in

national parks, national monuments, historic

monuments, parkways, recreation areas, memorials, historic sites, and other reservations

administered by the Secretary of the Interior

through the National Park Service.2 Congress

established the national parks “to conserve

the scenery and the natural and historic objects and the wildlife therein and to provide

for the enjoyment of the same in such manner

and by such means as will leave them unimpaired for the enjoyment of future generations.” 3

The National Park Service is required

to promote and regulate use of park areas in

conformance with the declared purposes of

preservation and management “for the benefit and inspiration of all the people of the

United States.”4

In conformance with these

declared purposes of the National Park System, most nonrecreational uses of park areas

are sharply limited or prohibited.

Photo Cred/t: OTA Staff

Caribou, McKinley National Park

The legal basis for use of park land for

rights-of-way is found in (a) the general authority of the Secretary of the Interior to

manage the national parks under his authority in conformance with their established purposes; (b) specific statutes and regulations

governing individual units of the National

Note: Footnotes for this section appear on pp. 72-73.

Park System; (c) public land right-of-way statutes applicable to park lands; and (d) statutes

and regulations relating to highways, navigable waters, and other modes of transportation.

GENERAL AUTHORITY

FOR RIGHTS-OF= WAY

There is no express and comprehensive access or right-of-way authorization for the National Park System as there is for the public

lands,5 the National Wildlife Refuge System,’

and the National Forest System.7 In general,

the laws governing administration of national

parks are less detailed and more discretionary than those for other land management

systems. Access through a national park for

mineral exploration and development is subject to the broad authority of the Secretary of

the Interior to manage the national parks

through the National Park Service.8 Exercise

of this authority should be in conformance

with the general purposes of the park system

of preservation and recreation, and with the

particular purposes for which a given park

unit was established.9 The Secretary is specifically authorized to aid in the development

of transportation systems which serve units

of the national parks. The Secretary may construct, maintain, or, by agreement, make

funds available for local airports10 and roads

designated as park approach roads.11 T h e

Secretary may construct roads and trails

within national park areas and obtain any

rights-of-way necessary for improvement or

construction of roads within authorized

boundaries of park areas.12 In the administration of the parks, the Secretary is authorized to regulate boating and other activities

on waters in the National Park System, including navigable waters under the jurisdiction of the United States.13 The regulation of

navigable waters in park areas by the Secretary of the Interior complements the Coast

Guard’s general jurisdiction over navigable

waters.
68 ● Analysis of Laws Governing Access Across Federal Lands

For administrative purposes, the Park

Service has divided components of the National Park System into three categories:

●

●

●

Natural areas—all national parks and

certain national monuments established

as such because of their natural features.14

Historical areas—all park areas designated because of their historic or archeological significance, historical sites,

battlefields, monuments, and memorials. 15

Recreational areas—all units of the park

system administered for purposes of

public recreation, such as seashores,

lakeshores, parkways, and wild rivers.”

Permissible uses of park areas often depend

upon the administrative classification.

Regulations promulgated by the Park Service limit the operation of motor vehicles, aircraft, and vessels primarily for reasons of

safety and the protection of life and property.

Generally, aircraft must take off and land

only at designated land and water areas and

comply with Federal aviation regulations.17

Cars, offroad vehicles, and other motor vehicles are allowed only on established roads

or use areas unless special permission is obtained. 18 Boats must comply with Coast Guard

requirements and may be restricted in operation in wildfowl nesting areas and fish habitats for safety reasons.19

The use of existing park roads by commercial vehicles is subject to strict controls. Park

service regulations provide that:

The use of Government roads within park

areas by commercial vehicles, when such

./

Photo Cred/t: The Alaska Coalltion

National Parks offer many outdoor recreational opportunities. The photograph shows a skier in the Wrangell-St. Elias Region,

a proposed National Park area
Ch. 4 Federal Land Management Systems ● 69

use is in no way connected with the operation of the park area, is prohibited, except

that in emergencies the Superintendent may

grant permission to use park roads.20

The sole exception to this rule applies

when a denial of the use of park roads would

totally foreclose access:

The Superintendent shall issue permits for

commercial vehicles used on park area roads

when such use is necessary for access to private lands situated within or adjacent to the

park area, to which access is otherwise not

avail able.21

The “local park superintendent is vested

with broad discretion in matters relating to

the management of a particular park unit. In

addition to laws applicable to the park system

as a whole, the statutes and executive orders

that established and govern individual park

units often impose more or less stringent requirements on permissible uses .22

STATUTES PROVIDING FOR

RIGHTS-OF-WAY THROUGH

NATIONAL PARKS

The 1901 Act, Rights-of-Way for Public

Utilities

The Act of February 15, 1901,23 provides

that the Secretary of the Interior may permit

the use of rights-of-way, for certain specified

purposes, through “the public lands, forests,

and other reservations of the United States,

and the Yosemite and Sequoia National

Parks, Calif., and the General Grant grove

section of Kings Canyon National Park,

Calif.” 24 Rights-of-way maybe obtained under

the 1901 Act for construction and operation

of facilities for the generation and distribution of electricity for telephone and telegraph

systems, and for water projects for irrigation,

mining, quarrying, timbering, manufacturing,

or supplying water for domestic, public, or

other beneficial purposes.

The right-of-way does not convey any property interest in the lands involved; it is a

license revocable at the discretion of the Secretary. 25 The right-of-way is limited in extent

to the grounds occupied by the project plus an

additional area not to exceed 50 feet from the

margins of the project. For pipes, pipelines,

and electrical, telegraph, or telephone poles,

the right-of-way may not exceed 50 feet from

the centerline of the projects. A permit for a

right-of-way across one of the named national

parks or other reservations may be issued

only on the approval of the “chief officer of

the department” having jurisdiction over the

lands after a finding that the proposed use is

“not incompatible with the public interest. "26

The 1901 Act expressly referred to grants

of rights-of-way across Yosemite and Sequoia

National Parks (the General Grant grove was

added by amendment in 1940).27 It has, therefore, been suggested that the Act does not apply to any other parks, though it would apply

to all monuments and recreation areas administered by the Park Service.28 The implication is that because the 1901 Act listed some

parks and did not list others and because one

park was added in 1940, the unlisted parks

were not to be subject to this provision and

were not, under principles of statutory construction, covered by the phrase “other reservations.

Unlike the Act of March 4, 1911, the 1901

Act is not mentioned in section lc(b) of Title

16, United States Code, as one of those laws

that are applicable to all units of the Park

System regardless of their designation as

parks, monuments, or recreation areas in legislation redefining the National Park System. 29 However, that provision is, on its face,

not an exclusive compilation of laws of general applicability. It states: “the various authorities relating to the administration and protection of areas under the administration of

the Secretary of the Interior through the National Park Service, including but not limited

to . . . shall, to the extent such provisions are

not in conflict with any such specific provision be applicable to all areas within the National Park System and a reference in such

Act to national parks, monuments, recreation

areas, historic monuments, or parkways shall

hereinafter not be construed as limiting such
70. Analysis of Laws Governing Access Across Federal Lands

Act to those Areas.”30 (Emphasis added). If

the 1901 Act is covered by this provision

then, because it applies to some elements of

the System, it would apply to all. If it is not

covered, then only three parks are subject to

the right-of-way provision.

The 1911 Act, Rights-of-Way for Power

and Communications Facilities

The Act of March 4, 1911,31 authorizes the

Secretary of the Interior to grant an “easement for right-of-way” for a period of up to 50

years from date of issuance to any person,

association, or corporation of the United

States for one or more of the listed purposes.

This Act has been expressly extended to all

areas in the National Park System.32 An easement for right-of-way may be granted “over,

under, across, and upon” national parks and

other reservations of the United States for:

a. up to 200 feet from the center line of

poles and lines for the transmission and

distribution of electricity or for lines

and poles for radio, television, and

other communications purposes; and

b. sites not exceeding 400 square feet

for transmitting, relay, receiving, and

other communications structures and

facilities.

A right-of-way is granted only after approval

by the “chief of the department” upon a finding that the proposed use is not incompatible

with the public interest.33 All or part of the

right-of-way may be annulled or terminated

for non-use or abandonment after a period of

2 years. Communications facilities are subject to regulation by the Federal Communications Commission.34 Electrical power projects

are subject to regulation by the Federal Energy Regulatory Commission35 and by State

authorities.

The Ditches and Canals Acts

A series of public land laws, commonly referred to as the “ditches and canals acts”36

grant rights-of-way through the public lands

and reservations of the United States for

drainage and irrigation projects. The right-ofway may be obtained by a canal ditch company, irrigation or drainage district,37 individual, or association38 upon filing with the Secretary of the Interior certain required documents such as corporate articles of incorporation, or other evidence of organization

under State law, ownership information, and

maps of the location of the proposed right-ofway for drainage or irrigation projects.39

The right-of-way includes the ground occupied by the water of any reservoir, canals,

and laterals, up to 50 feet from the marginal

limits of the project, and any additional area

as the Secretary may deem necessary for the

proper operation and maintenance of the

right-of-way project.40 The holders of ditch

and canal rights-of-way also obtain the right

to take any material, earth, and stone necessary for the construction of canals and

ditches from the adjacent public lands.41

The right-of-way may not be located so that

it interferes with the proper occupation by

the Government of such reservations. Maps

of right-of-way location are subject to the approval of the administering department.42 The

right-of-way is effective upon approval of the

required maps and certificates and authorizes occupation of the right-of-way only for

the purpose of construction, operation, maintenance, and care of the project, and no other

purposes.

43 Existing ditch and canal rights-ofway may also be used for purposes of a public

nature, for water transportation, for domestic purposes, “or for the development of

power as subsidiary to the main purpose of

irrigation or drainage.”44

Public Utility Rights-of= Way

and Mineral Access

The 1901 Act, the 1911 Act, and the

ditches and canals acts do not address the

problems of mineral access. Individuals or

business entities seeking permission to use

lands in the National Park System for access

to adjacent non-Federal lands for the purpose of mineral exploration and development

alone will find no legal basis under these laws

for access. However, these laws may provide

authority to approve rights-of-way over park
Ch. 4 Federal Land Management Systems . 71

lands for utilities systems that may be necessary to support mineral development.45

Under each law, the grant of a right-of-way

is conditioned on a finding by the Secretary of

the Interior that a proposed use is appropriate. The 1901 Act authorizes issuance of a

revocable license for use of a right-of-way for

electric power, communications, and water

projects subject to approval of the Secretary

and a finding that the proposed use is “not incompatible with the public interest.”46 This

public interest standard, though seemingly

broad, should be construed in light of the declared purposes of the national parks. Any

use detrimental to that purpose may be found

to be not in the public interest.

The 1911 Act provides for a right-of-way

for a term of up to 50 years for electric power

transmission and distribution systems and

communications facilities subject to approval

of the Secretary, and a finding that the use of

the right-of-way is “not incompatible with the

public interest.”47

The ditches and canals acts grant a rightof-way for drainage and irrigation projects

upon the approval by the Secretary of the

project maps and required certificates. The

right-of-way continues in effect as long as it is

used for its primary declared purpose, Existing canal and ditch rights-of-way may be used

for certain limited public and subsidiary purposes but no other occupancy is authorized.

Approval of a right-of-way may be denied if

the location sought is found to interfere with

the Government’s proper occupation of the

park or reservation.48 Therefore, if the proposed use of the right-of-way is not consistent

with the purposes of preservation and recreation, it maybe denied.

APPLICATIONS FOR RIGHTS-OF-WAY

The Department of the Interior applies

the BLM regulations on the applications for

and issuance of rights-of-way to applications

for rights-of-way across National Park System lands.49 Applications for rights-of-way

through park areas are made to the Director

of the National Park Service.50 Applicants

must file a request for a right-of-way, citing

the statute(s) or other authority under which

it is sought, providing maps and supporting

documents, and making a deposit for administrative costs, The applicant agrees to accept

all the terms and conditions of issuance set

forth in the regulations.

RIGHTS-OF-WAY FOR HIGHWAYS

Federal agencies, States, and local jurisdictions seeking a right-of-way through National Park System lands for federally aided

highways and other transportation projects

may file a designated route with the Secretary of Transportation.51 This begins a multitier review process. The Secretary of Transportation cooperates with the Secretaries of

the Interior, Housing and Urban Development, and Agriculture and the States to develop a transportation plan and program that

includes measures to maintain or enhance

the natural beauty of the lands involved.52

Federal-local cooperative studies are authorized to determine the most feasible Federal aid for the movement of vehicular traffic

through or around national parks so as “to

best serve the needs of the traveling public

while preserving the natural beauty of these

areas.”53 If the Secretary of Transportation

concludes that Federal park land is reasonably required for a highway or other transportation project and that no prudent or feasible alternative exists, a request for a rightof-way and supporting information is filed

with the Secretary of the Interior.54 If the

Secretary of the Interior does not certify that

the proposed right-of-way is contrary to the

public interest or inconsistent with the purposes of the park reservation or if he approves the right-of-way subject to conditions

deemed necessary for the adequate protection and utilization of the park within 4

months, the Secretary of Transportation may

appropriate the necessary land and transfer

a right-of-way to the State agency .55
72 ● Analysis of Laws Governing Access Across Federal Lands

FOOTNOTE REFERENCES FOR NATIONAL PARK SYSTEM

‘Department of the Interior, Bureau of Land Management, Public Land Statistics 1976, 21.

2

16 U.S, C, lc(a). “Reservation” is a generic term,

which refers to any public lands that have been withdrawn for certain specific purposes and thereby segregated from the operation of various other public land

laws that authorize the use or disposition of the lands.

Lands may be reserved or “withdrawn” by statute, by

executive order pursuant to statute, or by executive action subject to an implied inherent withdrawal authority of the President (this last power, to the extent that it

exists, has been limited by sections 204 and 704 of the

Federal Land Policy and Management Act of 1976, commonly known as the BLM Organic Act, Public Law

94-579, Oct. 21, 1976, 90 Stat. 2743. See 43 U.S.C.

1714). Almost all national parks were created by

statute. Many national monuments were originally

created by reservations pursuant to the Antiquities Act

of 1906, which authorizes the President to establish national monuments in areas of historic or scientific interest or value by public proclamation (16 U.S.C.

431-433). Most national recreation areas were created

by cooperative agreement between the Park Service

and the Bureau of Reclamation under which lands

previously withdrawn for reclamation were subjected

to recreation uses.

When the term reservation is used in a statute, particularly older statutes, it includes any lands under the

jurisdiction of the Park Service unless specified otherwise.

’16 U.S.C. 1.

4

16 U.S,C. la-l.

5

43 U.S. C. 1761 et seq.

6

16 U.S.C. 668dd(d).

7

43 U.S.C. 1761 et seq.; 16 U.S.C. 532-538.

‘See 16 U.S.C. 1 et seq.

’16 U.S.C. la-l, lc(b).

‘[)16 U.S.C. 7a-7e.

’116 U.S,C, 8, 8a-8f.

’

2

16 U.S.C. 1, lb(7),8,

’316 U.S,C. la-2(h),

“36 CFR 1.2(g].

’

5

36 CFR 1.2(h).

‘b36 CFR 1.2(i).

“36 CFR 22.

‘

8 See regulations relating to operation of motor vehicles at 36 CFR 4,19. For snowmobiles, see 36 CFR part

2.34.

’936 CFR part 3.

2036 CFR 5.6(b) Commercial vehicles are defined as

any vehicles “used in transporting moveable property

for a fee or profit. ” 36 CFR 5,6(a).

2

’36 CFR 5.6(c).

2216 U.S.C. lc(b), laws establishing individual units of

the national parks are codified in Title 16 U.S.C. and in

regulations, 36 CFR Pt. 7 and also 36 CFR parts 6, 12,

20, 21, 25,28,30.

2331 Stat. 790, 43 U.S.C. 959 (1970), also codified at

16 U.S.C. 79, 522 (1970). The BLM Organic Act, 43

U.S.C. 1701 et seq., repealed the 1901 Act to the extent

it applied to public lands and national forests—leaving

only application to named parks “and other reservations.” Public Law 94-579, section 703(a), 90 Stat, 2743.

z443 U.SOC. 959. Note, however, that the codification

at 43 U,S. C. 79 governing national parks was not

amended to include General Grant grove section of

Kings Canyon National Park, Calif,, as a named park.

zSUnited States v. Colorado Power CO., 240 F. 217 (D.

Col. 1916).

2643 U.s.c. 959.

zpAct of March 4, 1940, 54 Stat. 41.

zBLee D. Morrison, “Rights-of-Way on Federally

Owned Lands: A Journey through the Statutes by Way

of the Federal Land Policy and Management Act of

1976,” 9 Transportation Law Journal 97 (1977), at 111.

The 1901 Act was passed after the establishment of

Yellowstone National Park, Act of March 1, 1872, c. 24

s1, 17 Stat. 32, and Mount Rainier National Park, Act of

March 2, 1899, c. 377 s1, 30 Stat. 993. Neither is mentioned in the Act.

zYAct of August 18, 1970, Public Law 91-383, 84 Stat.

825, 16 U.S.C. IC.

3016 U.S.C. lc(b).

3136 Stat. 1253, 43 U.S. C. 961 (1970) (also codified at

16 U.S.C. 5, 420, 523). Section 5 applies to national

parks and other reservations; section 420 to national

parks, military, or other reservations; section 961 to

public lands, Indian, or other reservations; section 523

applies to national forests. The BLM Organic Act partially repealed the 1911 Act insofar as it applied to

public lands and national forests. Public Law 94-579,

90 Stat, 2743, section 703(a).

3243 U.S.C. lc(b).

3343 U.S,C. 961, 16 U.S.C. 5,420.

“Id.

jssee, generally, 16 U,S. C. 797 et seq. and regulations

thereunder. The Federal Energy Regulatory Commission was formerly the Federal Power Commission.

3“The “ditches and canals acts” include: Act of

March 3, 1891, c. 561, 26 Stat. 1101; Act of January 13,

1897, c. 11, 29 Stat. 484; Act of May 11, 1898, c. 292, 30

Stat. 404; Act of March 4, 1917, c. 184, 39 Stat. 1197;

Act of March 3, 1923, c. 219, 42 Stat. 1437; Act of

March 3, 1925, c. 462, 43 Stat. 1145; and Act of May

28, 1926, c. 409, 44 Stat, 668. The “ditches and canals

acts” are codified generally at 43 U.S.C. 946 to 954.

These laws were repealed in part by the BLM Organic

Act as they apply to public lands and national forests.

See Public Law 579, section 703(a), 90 Stat. 2743

(1976).

3743 U.S.C. 946.

’843 U.S. C. 948.

3943 U.S. C. 946.

‘Id.
Ch. 4 Federal Land Management Systems “ 73

“M.

“Id.

4]43 U.s.c. 949.

“43 U.s.c. 951.

‘5The availability of rights-of-way for utilities may

seem useless if there is no means of surface access for

the enterprise which the facilities are intended to support. But such split access may be feasible where air or

sea transport or a more circuitous surface transport

route can be established. It should be taken into account that the costs of utility systems are much more

sensitive to additional length than many other transportation systems.

“616 U.S.C. 79.

“16 U.S.C. 420.

’

8

43 U.S.C. 946.

“943 CFR 2801.1-7(b). See discussion of BLM regulations in previous section on Public Lands.

‘(143 CFR 2802. l-l(a).

‘lSee laws applicable to the Federal-aid highway system, 23 U.S.C. 101 et seq., and 23 U.S. C. 317.

5223 U,S.C. 138.

5323 U.S. C. 138.

5423 U,S.C, 1653(f), commonly known as section 4(f) of

the Department of Transportation Act and also found

at 23 U.S. C. 138. See discussion of section 4(f) elsewhere in this report.

5523 U.S.C. 317.
74 ● Analysis of Laws Governing Access Across Federal Lands

wildlife refuges, areas for the protection and

conservation of fish and wildlife that are

threatened with extinction, wildlife ranges,

game ranges, wildlife management areas, or

waterfowl production areas.’” This system

comprises over 30 million acres nationwide,

with 22.2 million acres in Alaska. z

There are at least eight statutes that may

provide authority for the management policies and purposes of the NWRS.3 The primary authority is found in the National

Wildlife Refuge System Administration Act4

which makes specific provisions for grants of

easements across NWRS lands.5 Other statutes, which may provide authority for rightsof-way in wildlife refuges, are the Act of

February 15, 1901,6 the Act of March 4,

1991 ,

7 and the ditches and canals acts.8

Rights-of-way through wildlife refuges for

federally funded highways and other transportation projects may be obtained under section 4 of the Refuge Administration Act. However, federally aided transportation projects

through refuge areas are subject to review

under section 4(f) of the Department of Transportation Act.9 (The Mineral Leasing Act

makes provision for oil and gas pipeline

rights-of-way through refuges, but requires

prior findings that such use is not inconsistent with the purposes of the refuge.)10

The National Wildlife Refuge System Administration Act authorizes the Secretary of

the Interior to permit the use of “any area

within the system for any purpose, including

but not limited to . . . access whenever he

determines that such uses are compatible

with the major purposes for which such areas

were established.”11 The Secretary is further

authorized to: “permit the use of, or grant

easements in, over, across, upon, through, or

under any areas in the system for the purposes such as, but not necessarily limited to,

powerlines, telephone lines, canals, ditches,

Note: Footnotes for this section appear on pp. 77-78.

pipelines, and roads including the construction, operation, and maintenance thereof,

wherever he determines that such uses are

compatible with the purposes for which such

areas were established. “12

Right-of-way regulations issued by the Fish

and Wildlife Service state, “No right-of-way

will be approved unless it is determined by

the Regional Director to be compatible.”13

That term is defined by the regulations:

“ ‘Compatible’ means that the requested

right-of-way or use will not interfere with or

detract from the purposes for which units of

the National Wildlife Refuge System are established.” 14

The holder of any right-of-way in a wildlife

refuge granted by the Secretary under provisions of the Refuge Administration Act or any

other law is required to pay in advance the

fair market value or yearly rental value of the

right-of-way .15 If the holder is a Federal,

State, or local agency exempted by law from

payment requirements, the agency is required to compensate the Secretary by other

acceptable means such as the loan of other

land, equipment, or personnel to the extent

such arrangements are consistent with the

objectives of the National Wildlife Refuge

System; otherwise the Secretary may waive

the compensation requirement.’” After deduction of necessary administrative expenses,

any proceeds from private right-of-way easements on refuge system lands are deposited

to the Migratory Bird Conservation Fund17 to

be used for land acquisition to carry out the

purposes of the Migratory Bird Conservation

Act18 and the Migratory Bird Hunting Stamp

Act.l9

RIGHTS-OF-WAY UNDER OTHER

STATUTES

Lands reserved for fish and wildlife purposes may be subject to the right-of-way provisions of the 1901 Act, the 1911 Act, and the

ditches and canals acts, which are laws of

general applicability. Although these laws

were partially repealed by the Federal Land
Ch. 4 Federal Land Management Systems ● 75

Policy and Management Act insofar as they

applied to public lands and national forests,

their applicability to “other reservations” remains.20 However, the express and broad authorization for wildlife refuge rights-of-way

in the Refuge Administration Act would seem

to be more favorable to applicants than the

trio of special right-of-way laws, especially

since payment is required even if access is

sought under another statute.21 The right-ofway regulations issued by the Fish and Wildlife Service require that all applications for a

right-of-way easement be made under the

Refuge Administration Act provisions.22 Access use of refuge areas that are also components of the National Wild and Scenic

Rivers System or the National Wilderness

Preservation System is regulated by the laws

covering those systems.23 Wild and Scenic

Rivers System components administered by

the Fish and Wildlife Service are subject to

the access authority for national parks instead of that for wildlife refuges. 24 The Fish

and Wildlife Service has declared that construction of transportation facilities in designated refuge wilderness areas will not be

allowed without special authorization by Congress.

25

RIGHTS-OF-WAY

FOR TRANSPORTATION SYSTEMS

Federally funded highways, railways, or

waterways may be built through wildlife

refuges but they must meet certain requirements. First, the application for a right-ofway must be approved by the Fish and Wildlife Service and the Secretary of the Interior

as being compatible with the purposes for

which the refuge was established, and arrangements for payment or other compensation must be made.26 Second, under section

4(f) of the Department of Transportation Act

of 1966,27 the Secretary of Transportation

must review the proposed project. Approval

may be granted only if (1) there are no feasible and prudent alternatives to the use of

refuge lands, and (z) the program includes all

possible planning to minimize environmental

damage. 28

The general position of the Fish and Wildlife Service on the use of refuge areas for

transportation projects and the use of specific transportation modes within refuges is

stated in the Final Environmental Statement

for the Operation of the National Wildlife

Refuge System:

The use of passenger vehicles, including

ORVs is restricted in time and place to protect wildlife, habitat, public safety, and

Government property. Many refuges include

inland, intracoastal, and in some cases up to

a 3-mile strip of coastal waterways. Commercial transportation use of navigable waters

is limited primarily to powered boats but significant recreational use occurs in certain

areas. Navigable waters are generally not

subject to refuge regulations as management

must acknowledge State ownership of submerged lands, commitment for navigation

purposes, and authorities of other agencies

such as the U.S. Coast Guard or U.S. Army

Corps of Engineers.

Regulation of access on inland and intracoastal waters is generally necessary to protect wildlife but use of traditional navigation

channels is generally permitted. Regulations

may include control of methods, times, and

routes of access. 29

APPLICATIONS FOR RIGHTS= OF= WAY

An applicant for a right-of-way across

refuge lands must submit an application and

supporting information to the Regional Director of the Fish and Wildlife Service for the

area in which the refuge is located.30 The Fish

and Wildlife Service has adopted right-ofway procedures and requirements similar to

those followed by BLM.31

Applicants must pay a nonreturnable application fee32 as well as all costs incurred in

processing the application.33 They must also

agree to reimburse the United States for all

costs incurred “in monitoring the construction, operation, maintenance, and termination of facilities within or adjacent to the

easement or permit area.”34 All applications
76. Analysis of Laws Governing Access Across Federal Lands

must include a detailed analysis of the impact

of the proposed action on the environment.35

A map or plat accurately describing the rightof-way must accompany each application.36

Easements are generally granted for 50

years or so long as the right-of-way is used for

the purposes granted.37 All easements include

terms requiring the following:

●

●

●

●

●

Compliance with State and Federal laws

and regulations applicable to the project

for which the easement is granted and to

the lands included in the easement.38

Soil and resource conservation and protection measures.39

Fire prevention.40

Rebuilding or repairing roads, fences,

structures, and trails destroyed or damaged by construction, and building and

maintaining suitable crossings for roads

and trails which intersect the right-ofway.

41

Payment to the United States for damages to lands or property caused by the

●

applicant and indemnification against

any liability for damages arising from

occupancy or use of lands under easement.42

Restoration of the land to its original

condition upon revocation and termination.43

The applicant is required to pay the fair market value for use and occupancy of lands subject to an easement.44

The Regional Director may suspend or terminate an easement for failure to comply

with any terms or conditions of the grant or

for abandonment.45 He must give the easement holder 60 days notice, during which

time the holder may avoid suspension or termination by taking such corrective action as

is specified in the notice.46 If, at the end of the

60 days, corrective action has not been taken,

a determination to that effect by the Regional

Director will operate to suspend or terminate

the easement, without a hearing.47 There are

provisions for administrative appeals from an

I

adverse determination.48

Photo Credit: National Park Serb’ice

Kittiwakes, birds of the open ocean, nest on the cliffs of the Seward Peninsula and the islands of the Bering Sea
Ch. 4 Federal Land Management Systems ● 77

’16 U.S.C. 668dd(a)(l). Fish and Wildlife Service

regulations provide that: “all wildlife refuge areas are

maintained for the fundamental purpose of developing

a national program of wildlife conservation and

rehabilitation. These areas are dedicated to wildlife

found thereon and for the restoration, preservation,

development, and management of wildlife habitat; for

the protection and preservation of endangered or rare

wildlife and their associated habitat; and for the

management of wildlife, in order to obtain maximum

production for perpetuation, distribution, dispersal,

and utilization. ” 50 CFR 252.

‘Department of the Interior, Bureau of Land Management, Public Land Statistics 1976, p, 19.

3

The statutes cited include: 5 U.S. C. 301 which provides general authority to promulgate regulations; 16

U.S,C. 685, 725, 690d which are portions of acts

establishing specific NWRS areas; 16 U.S.C. 7-15(i)

from the Migratory Bird Conservation Act; 16 U.S.C.

664 from the Fish & Wildlife Coordination Act; 4 3

U.S,C. 315a from the Taylor Grazing Act; and 16 U.S.C.

460 from the Act of September 28, 1962, as amended by

the Act of October 15, 1966, which provides for recreational use of NWRS lands, fish hatcheries, and other

conservation areas administered for fish and wildlife

purposes. Measures have been introduced in recent

sessions of Congress to establish a governing agency

and organic act for the NWRS. See, e.g., S. 984, 95th

Cong., 1st sess., 123 Cong. Rec. S4020 (daily ed. Mar.

11, 1977): H.R. 2082, 95th Cong., 1st sess., 123 Cong.

Rec. H477 (daily ed. Jan. 19, 1977). The National

Wildlife Refuge System Administration Act Amendments of 1976, Public Law 94-223, 90 Stat, 199, Feb. 27,

1976, provided that all units of the NWRS would be administered by the Fish and Wildlife Service (previously

there had been joint administration of some areas with

BLM) and that areas may not be removed from the System without an Act of Congress. Section a(l) of the Act

authorized continuance of cooperative programs for

the management of resources on Alaska refuge lands.

16 U.S.C. 688dd(a)(l).

’16 U.S.C. 668dd.

5

16 U.S.C. 668dd(d)(l].

’43 U.s.c. 959.

’43 U.S.C. 961.

’43 U.S.C. 946-954.

’49 U,S.C. 1653(f). 4(f) review only occurs when funds

appropriated to the Department of Transportation are

used.

’

0

30 U.S.C. 185(b)(l)o

11 1(5 U.S. C. 668dd(d)(l),

“Id,

’

3

50 CFR 29.21-l(a). Regulations for the grant of easements for rights-of-way are set out at 50 CFR 29.21.

These regulations were recently extensively revised to

reflect amendments to the Mineral Leasing Act and the

National Wildlife System Administration Act Amendments of 1974. See 42 F.R. 43916, Aug. 31, 1977.

“50 CFR 29.21(h).

“16 U.S.C. 668dd[d)(2).

‘61d.

“Id.

1816 u.S. C, 715 et seq.

1916 U,S.C. 718 et seq.

Zopublic Law 94-579, section 703(a), 90 Stat. 2743. All

wildlife refuges are reservations. A discussion of the

1901 Act, the 1911 Act, and the ditches and canals acts

is contained in the section on National Parks.

2} 16 u.S.C. 668dd(d)(2).

2250 CFR 19.21-l(a) as revised, 42 F.R. 43917, Aug.

31, 1977. One commentator has observed that these old

laws are no longer cited as right-of-way authority in the

regulations issued for NWRS. See Lee D. Morrison,

Rights-of-Way on Federally Owned Lands: A Journey

Through the Statutes by Way of the Federal Land

Policy and Management Act of 1976, 9 Transportation

Law Journal 113 (1977).

23 See discussion of these systems in other sections of

this report.

’416IJ. S.C. 1284(g).

ZSDepartment of the Interior, Fish and Wildlife Service, Final Environmental Statement on the Operation of

the National Wildlife Refuge System, p. III-82 (1976).

2

’16 U.S.C. 668dd(d).

2749 U,S.C. 1653(f).

ZaId.

zgFina] Environmental Statement, Supra, note 25,

III-82.

3050 CFR 29.21-2.

3’The regulations, as revised, are set forth at 50 CFR

29,21 and 42 F.R. 43916, Aug. 31, 1977, supra, note 13.

3250 CFR 29.21-l(a)(2)(i). This requirement does not

apply to State or local governments or their agencies

and instrumentalities unless a pipeline easement is

sought.

3350 CFR 29,21 -2(a)(2)(ii)(D).

3~50 CFR 29.21-2(a)(3)(i). See infra, note 44.

3550 CFR 29.21-2(a)(4). The analysis must be sufficient

to allow FWS to prepare an impact statement under

NEPA, if required. It must also comply with the requirements of the National Historic Preservation Act of 1966

(16 U.S.C, 47o et seq.), the Archeological and Historical

Preservation Act of 1974 (16 U.S.C, 469 et seq.), E.O.

11593 “Protection and Enhancement of the Cultural Environment, ” May 13, 1971 (36 F.R, 8921) and “Procedures of Historic and Cultural Properties” (36 F.R.

800).

]’50 CFR 29.21-2(b). It must be sufficiently detailed to

locate accurately the right-of-way on the ground.

3750 CFR 29.21-3(a).
78. Analysis of Laws Governing Access Across Federal Lands

3~50 CFR 2g,21-4(b)(l),

3950 CFR 2w21-4(b)(4).

4050 CFR 29.21-4(b)(5).

4150 CFR 29.21-4(b)(6).

4250 CFR 29.21-4(b)(7).

4350 CFR 29,21 -4( b)(10). This requirement may be

waived in writing,

4450 CFR 29.21-7. Payment may be made in a lump

sum or through annual fair market rental payments.

Federal, State, or local agencies, exempted from payment by Federal law, shall compensate by other means

such as making land available or loaning equipment or

personnel. A separate provision requires a nonreturnable payment within 60 days of the grant of an easement under a schedule based on the length of the easement, 50 CFR 29,21 -2(a)(3)(ii). This payment is to defer

costs incurred in monitoring activities on the easement,

If actual costs for monitoring are greater, additional reimbursement can be required, 50 CFR 29.21 (a)(3)(ii) (B).

4550 CFR 29.21-4(9). A rebuttable presumption of

abandonment is raised by deliberate failure to use all

or part of the easement for a continuous 2-year period.

4650 CFR 29.21-4(9). The Regional Director may extend the 60day period when extenuating circumstances or other compelling reasons warrant.

4750 CFR 29.21-4(9). Holders of rights-of-way under

the Mineral Leasing Act are entitled to a formal hearing conducted pursuant to 5 U.S.C. 554 prior to a final

decision to suspend or terminate, Other easement holders do not have the right to this procedure.

4’50 CFR 29.22. Appeals may be taken from any final

disposition by the Regional Director to the Director.

Decisions of the Director may be appealed to the Secretary of the Interior. The procedure for such appeals

is set out at 43 CFR part 4, subpart G.

NATIONAL FOREST SYSTEM

The National Forest System consists of

over 187.5 million acres1 of forest, rangeland,

and other lands and waters administered by

the Forest Service of the Department of Agriculture. 2 The national forests are established

and maintained “to improve and protect the

forest,” to secure “favorable conditions of

water flow, ” “ to furnish a continuous supply

of timber, ”3

and for other outdoor recreation,

range, timber, watershed, fish, and wildlife

purposes.

4 The national forests are managed

on a multiple-use sustained-yield basis5 with

“due consideration” given to “the relative

values of the various resources in a particular area,” including wilderness values.6 Under the Forest and Rangeland Renewable Resources Planning Act of 1974,7 units of the

National Forests System are to be administered according to land and resource management plans prepared under the Renewable Resources Program developed by the Department of Agriculture as part of a continuing responsibility to inventory and assess

renewable resources uses and supplies.8 Development of mineral resources is a generally

recognized and accepted use of national

forests. 9

Clear statutory authority for the use of naNote: Footnotes for this section appear on pp. 81-82.

tional forest lands for access purposes is

found in Title V of the Federal Land Policy

and Management Act of 197610 and in laws

authorizing development of the National Forest Transportation System.11 National forest

components of the National Wilderness Preservation System and the National Wild and

Scenic Rivers System are managed under the

laws and regulations applicable to those systems in addition to the general laws governing the National Forest System. Access uses

of these areas are limited and are discussed

under sections of this report on those systems.

THE BLM ORGANIC ACT

The Federal Land Policy and Management

Act of 1976, commonly referred to as the

BLM Organic Act, established comprehensive right-of-way authorization for the Secretary of the Interior for the public lands and

the Secretary of Agriculture for the national

forests, except for those areas designated as

wilderness. The Act repealed many older

right-of-way laws including the Act of February 15, 1901,12 the Act of March 4, 1911,13 and

the ditches and canals acts14 to the extent

that they applied to public lands and national

forests. 15
Ch. 4 Federal Land Management Systems . 79

Under Title V, permits for rights-of-way

may be granted for:

●

●

●

●

s

●

●

Systems and facilities for impoundment,

storage, transportation, or distribution

of water;

Pipelines and other systems for transportation and storage of liquids and

gases other than water, or petroleum or

natural gas products;

Pipelines, slurries, and other transportation systems for solid materials and related storage facilities;

Electric power projects (subject to compliance with Federal Energy Regulatory

Commission (FERC) requirements);

Communications systems;

Transportation purposes such as roads,

highways, canals, and airways, except

where they are associated with commercial recreation facilities on National Forest System lands; or

Other necessary transportation systems

or other systems or facilities in the public interest requiring rights-of-way over

National Forest System lands. ”

The applicant for a right-of-way must provide

the Secretary with any contracts, plans, and

other information reasonably related to the

use of the right-of-way that are needed for a

decision on the issuance or renewal of the

right-of-way and on any terms or conditions

required. ’7 When appropriate, the Secretary

may also require the applicant to provide information on the competitive effect of the

right-of-way. Business entities must disclose

ownership and other relevant financial information. 19 If a proposed use might have a significant impact on the environment, the applicant is required to submit a plan for the construction, operation, maintenance, and rehabilitation of the right-of-way in compliance

with stipulations and regulations issued by

the Secretary prior to approval of the application. 20

Rights-of-way will be granted for a reasonable term for the area occupied by the project

and necessary for its safe operation and for

such additional area as needed for the construction, maintenance, or termination of the

right-of-way project. 21 The use of corridors

for rights-of-way in common maybe required

where practical to minimize adverse environmental impacts.22 The holder must pay the administrative costs associated with the issuance and monitoring of the right-of-way, as

well as for the fair market value of the rightof-way, unless such payment is waived or

other financing arrangements exist.23 Each

grant of a right-of-way must contain enforceable provisions requiring compliance with applicable Federal and State standards for

health, safety, and environmental protection,

compliance with conditions for protection of

scenic, esthetic, and fish and wildlife values,

and protection of the interests of other lawful

users and the public in the lands covered by

the right-of-way .24 No right-of-way will be

issued or renewed unless the Secretary determines that the applicant has “the technical and financial capability to construct the

project for which the right-of-way is requested” in accordance with all terms and

conditions imposed.25

THE NATIONAL FOREST

TRANSPORTATION SYSTEM

In the Act of October 13, 196426 Congress

declared that “the construction and maintenance of an adequate system of roads and

trails within and near national forests and

other lands administered by the Forest Service is essential if increasing demands for timber, recreation, and other use of such lands

are to be met.”27 The anticipated effects of

the existence of such a road system would be

an increase in “the value of timber and other

resources tributary to such roads” and improved ability of the Secretary of Agriculture

to provide for the “intensive use, protection,

development, and management of these lands

under principles of multiple use and sustained yield of products and services.”28

To promote development of a forest roads

and trails system, the Secretary of Agricul-
80 ● Analysis of Laws Governing Access Across Federal Lands

ture is authorized to grant permanent or temporary easements for road rights-of-way over

national forests or other lands administered

by the Forest Service or related lands in

which the Department has an interest under

the terms of the grant to it.29 The easement

may be terminated by consent of the owner,

by condemnation, or for non-use for a period

of 5 years.30 The Secretary may, under the

forest development road program, provide for

the acquisition, construction, and maintenance of such roads within and near National

Forest System lands.31 These roads are to be

located and built in such a manner as to permit maximum economy in timber harvesting,

while meeting requirements for protection,

development, and management of lands and

resources in surrounding non-Federal lands.

Roads may be financed by departmental appropriations, requirements on the purchasers

of national forest timber and resources,

cooperative financing with public or private

agencies or individuals, or a combination of

these methods.32 The Secretary may also require users of Forest Service roads to maintain or reconstruct the roads in relation to

their proportionate share of total use or to

provide a deposit against the costs of maintenance or reconstruction.33

Congress has directed that the development of a transportation system to serve the

national forests be carried forward in time

“to meet anticipated needs on an economical

and environmentally sound basis and that

methods chosen to finance the construction

and maintenance of the system should be

such as to enhance local, regional, and national benefits. ”34 All roads constructed on

National Forest System lands must meet

“standards appropriate for the intended

uses, considering safety, cost of transportation, and impacts on land and resources.”35

Unless a permanent road is necessary as part

of the National Forest Transportation System, any road constructed in connection with

a timber contract or other lease or permit

must be designed so that vegetative cover will

be reestablished by natural or artificial

means within 10 years of termination of operation. 36

CONFLICT BETWEEN ACCESS

PROVISIONS

The two statutes discussed above differ in

some material respects. Section 510(a) of the

BLM Organic Act provides that, in the event

of any conflict between the requirements of

Title V and the Act of October 13, 1964, the

latter Act will prevail.37 When dealing with

components of the National Forest Transportation System, the Secretary need not apply

any provisions of Title V. Rights-of-way that

are not roads built under the 1964 Act are

governed by Title V. A proviso states that it

shall not be mandatory for the Secretary of

Agriculture to apply limitations on rights-ofway, ownership disclosure requirements, or

any other condition contrary to established

practices under the 1964 Act when dealing

with any forest roads.38 A clear implication of

the proviso, however, is that the Secretary

may apply such provisions at his discretion.

Forest Service regulations implementing

the 1964 Act39 stress a policy of coordinated

planning that takes into account the transportation and resource development needs of

surrounding communities.40 Each unit of the

National Forest System is to have a plan for a

transportation system for the protection and

utilization of the area, or the development of

resources on which communities within or

adjacent to the national forest are dependent. 41 Use of existing roads and trails in the

National Forest System is permitted subject

to certain regulations for protection and administration of lands and apportionment of

costs. 42 Easements for construction or use of a

road across Forest Service lands may be

granted for a reciprocal benefit, or conditioned on payment of reasonable charges and

acceptance of necessary and appropriate

terms and conditions.43 Applications under

the 1964 Act are made to the Chief of the

Forest Service. Permits may be required for

commercial hauling of non-Federal forest

products or other commodities and materials

on designated “special service roads” conditioned on meeting proportionate costs of use

or appropriate terms and conditions of opera-
Ch. 4 Federal Land Management Systems ● 81

tion. 44 In circumstances where transportation

systems serving forest lands and intermingled and adjacent non-Federal lands are

undeveloped or inadequate, the Chief of the

Forest Service may join in cooperative planning, financing, construction, and maintenance of roads to the extent that it is feasible

and advantageous to the United States.45

ROADLESS AREA REVIEW

The Forest Service is currently engaged in

a major review of all potential wilderness

areas in the forest system called the Roadless

Area Review and Evaluation (RARE 11).40 It

has identified approximately 67 million acres

of roadless areas, including 18 million acres

in Alaska, which might be suitable for designation as wilderness .47

As a result of an out-of-court settlement,

the Forest Service has agreed that it will

prepare an environmental impact statement

for any proposed actions that might affect the

wilderness potential of roadless lands in the

RARE II inventory.48 To minimize disruption

and uncertainty, the Forest Service hopes to

conclude the evaluation of all areas in the inventory by early 1979, at which time inventoried lands will be divided into three categories—“recommended wilderness,” “further

evaluation, ” and “no further wilderness consideration. ’49 Areas in the first two categories will be managed to protect wilderness

potential and access may well be limited.50

The size of final wilderness designation is

uncertain. The Forest Service has established

a program goal in its Renewable Resource

Program that calls for the eventual designation of 25 million to 30 million acres of forest

land in the wilderness system (as of December 1977, there were 12.5 million acres of

land in the National Wilderness Preservation

System) .5’

FOOTNOTE REFERENCES FOR NATIONAL FOREST SYSTEM

‘Bureau of Land Managment, Public Land Statistics

1976. There are 20.7 million acres of National Forest

System lands in Alaska.

2

The National Forest System is defined in the Forest

and Rangeland Renewable Resources Planning Act of

1974 as “all national forest lands reserved or withdrawn from the public domain of the United States, all

national forest lands acquired through purchase, exchange, donation, or other means, the national grasslands and land utilization projects administered under

title 111 of the Bankhead-Jones Farm Tenant Act (7

U.S.C, 1010 et seq.), and other lands, waters, or interest therein which are administered by the Forest

Service or are designated for administration through

the Forest Service as a part of the system. ” 16 U.S.C.

1609.

3

16 U.S.C. 475.

4

16 U.S.C. 528.

SId. As defined in the Multiple-Use Sustained-Yield

Act of 1960, “multiple use” means: the management of

all the various renewable surface resources of the national forests so that they are utilized in the combination that will best meet the needs of the American people; making the most judicious use of the land for some

or all of these resources or related services over areas

large enough to provide sufficient latitude for periodic

adjustments in use to conform to changing needs and

conditions; that some land will be used for less than all

of the resources; and harmonious and coordinated

management of the various resources, each with the

other without impairment of the productivity of the

land, with consideration being given to the relative

values of the various resources, and not necessarily the

combination of uses that will give the greatest dollar

return or the greatest unit output. 16 U.S.C. 531(a).

“Sustained yield of the several products and services” means the achievement and maintenance in perpetuity of a high-level annual or regular periodic output

of the various renewable resources of the national forests without impairment of the productivity of the land.

16 U.S.C. 531(b).

816 U.S. C. 529.

7

16 U.S.C, 1601 et seq., as amended by the National

Forest Management Act of 1976, Public Law 94-588, 90

Stat. 2949.

L116 U.S, C, 1604. Until a plan is developed for a given

unit, management continues under existing plans, 16

U.S.C. 1604(c).

’16 U.S.C. 528. The Multiple-Use and Sustained-Yield

Act of 1969.

’043 U,S.C. 1761 et seq.

1’16 U.S.C. 532-538, 16 U.S.C. 1608.
82 ● Analysis of Laws Governing Access Across Federal Lands

1243 U.S.C. 959, 16 U.S.C. 522.

1343 U.S.C. 961, 16 U.S.C. 523.

“43 U,S,C. 946-951,

ISFor a discussion of these laws, see section on National Parks.

1643 U.S.C. 1761(a).

1743 LJ. S.C. 1761(b)(l).

]aId,

1’43 U.S.C. 1761(b)(2).

2043 U.S.C. 1764(d).

2

143 U.S.C. 1764(a).

2243 U.S.C. 1763.

2’43 LJ, S.C. 1764(g).

2443 U,S.C. 1765.

2’43 U,S.C. 1764(j).

zs~blic Law 88-657, 78 Stat. 1089, 16 U.S.C. 532-538.

2716 U.S.C, 532.

261d.

2e16 U.S.C. 533.

’16 U.S.C. 534,

3116 U.S. C. 535,

Sqd. When a higher quality road is needed than that

necessary for purchasers’ removal of forest resources

or timber, the purchasers may be required to meet the

costs proportionate to their use.

3316 U.S.C, 537.

3416 U.S.C. 1608(a).

’516 U.S.C. 1608(C).

3616 LJ. S.C. 1608(b).

3743 U.S.C. 1770(a).

SeId.

39The regulations are at 36 CFR 212.1. It should be

noted that these regulations address issues germane to

the development of a transportation system by the Government. With the exception of provisions for “special

service roads, ” there is little that addresses fact situations involving applicants seeking a right-of-way for

their own use.

40See 36 CFR 212.1(c), 212.2.3, 212.8( a),212.O(d).

4136 CFR 212.3. The regtiations define a forest development transportation plan as a “plan for the system of

access roads, trails, and airfields needed for the protection, administration, and utilization of the national

forests and other lands administered by the Forest

Service, or the development and use of resources upon

which communities within or adjacent to the national

forests are dependent.” 36 CFR 212,1(c).

4236 CFR 212.7,212.12.

4336 CFR 212.10

4436 CFR 212.10.

4536 CFR 212.9(d).

‘eThe background and history of RARE II and its

predecessor, RARE I, are highly involved. A summary

may be found in Senate Committee on Energy and Natural Resources, Roadless Area Review and Evaluation,

Publication 95-92, February 1978, (committee print).

The Forest Service has issued no rules or regulations

for the management of the RARE II process. Policy

directives have come from Interim Directives in the Forest Service Manual or from the “RARE II Notebook”

compiled by Forest Service staff personnel working on

RARE II.

4742 F,R. 59688, Nov. 18, 1977. An accelerated land

management program is being undertaken in the

Tongass National Forest which contains 1,3 million

acres of roadless area. Forest Service Manual, chapter

8260, Interim Directive No. 5, p. 9.

4aStatement of Dr. M. Rupert Cutler, Assistant Secretary for Conservation, Research, and Education, Department of Agriculture, committee print, supra, note

46, p. 5. Environmental impact statements area normal

component of land management plans required by section 6 of the Forest and Rangeland Renewable Resources Planning Act of 1974. Forest Service decisions

on access must be consistent with the land management plan.

49RARE II Notebook, Inset HI, ‘‘RARE II Process.

‘Protective management will not be accomplished

through the land management planning process, supra,

note 48. Most of the areas that will be included in the

two categories presently are not used for access or any

other activity; they are considered “de novo wilderness,” Access or any other new activity can only be

permitted pursuant to a land management plan or by

other action of the Forest Service requiring an EIS.

S] Department of Agriculture, Final Environment)

Statement and Renewable Resource Program, 1977 to

2020, p, 97. (1976). See also committee print, supra,

note 46, p. 36, (Statement of Dr. Cutler). In June 1978

the Forest Service issued the Draft Environmental

Statement on Roadless Area Review and Evaluation

(RARE 11) consisting of a national programmatic volume

and 20 State and regional supplemental volumes.
Ch. 4 Federal Land Management Systems ● 83

NATIONAL WILD AND

The Wild and Scenic Rivers Act of 19681

established a national policy that selected

rivers and their surrounding environments

possessing “outstandingly remarkable scenic, recreational, geologic, fish and wildlife,

historic, cultural, or other similar values

shall be preserved and protected in a freeflowing condition for the benefit of present

and future generations.”2 The National Wild

and Scenic Rivers System was created to implement this policy. It consists of all river

units included by congressional designation

or by State action (subject to approval by the

Secretary of the Interior after review by appropriate Federal agencies).3

ADMINISTRATION OF THE SYSTEM

Congressionally designated components of

the National Wild and Scenic Rivers System

are administered by either the Secretary of

Agriculture through the Forest Service or by

the Secretary of the Interior through one of

the Department’s land management agencies,

principally the National Park Service and the

Fish and Wildlife Service. State-designated

rivers are under State administration consistent with the purposes of the Wild and Scenic

Rivers Act. There are three classifications of

rivers in the system:

1. Wild river areas—Those rivers or sections of rivers, which are free of impoundments and generally inaccessible

except by trail, with watersheds or

shorelines essentially primitive and

waters unpolluted.

2. Scenic river areas—Those rivers or sections of rivers, which are free of impoundments, with shorelines or watersheds still largely primitive and shorelines largely undeveloped, but accessible

in places by roads.

3. Recreational river areas—Those rivers

or sections of rivers, which are readily

Note: Footnotes for this section appear on p. 88.

SCENIC RIVERS SYSTEM

accessible by road or railroad, which

may have some development along their

shorelines, and which may have undergone some impoundment or diversion in

the past.4

A component of the National Wild and Scenic Rivers Systems is managed “in such manner as to protect and enhance the values

which caused it to be included in the system,

without insofar as is consistent therewith,

limiting other uses that do not substantially

interfere with public use and enjoyment of

these values.”5 Management plans for each

component river may allow varying degrees

of protection and development based on its

special attributes. Primary emphasis, however, must be given to protecting esthetic,

scenic, historic, archeologic, and scientific

features.’

Wild and scenic rivers under the jurisdiction of the National Park Service are part of

the National Park System and are subject to

laws governing the administration of the park

system. Components administered by the Fish

and Wildlife Service are part of the National

Wildlife Refuge System and subject to all

laws applicable to wildlife refuges. The Secretary of the Interior may also use any general statutory authority relating to national

parks, and any other authority available to

him for recreation and preservation purposes

or for natural resources conservation and

management, which he deems appropriate

for the administration of any component of

the Wild and Scenic Rivers System.7 The Secretary of Agriculture may use any statutory

authority relating to the National Forest System for purposes of the administration of

components of the Wild and Scenic Rivers

System.

8 Whenever there is a conflict between the provisions of the Wild and Scenic

Rivers Act and such other authority, the more

restrictive provisions are applied.9 Components of the National Wild and Scenic

Rivers System within designated wilderness

areas are managed according to provisions of
84 ● Analysis of Laws Governing Access Across Federal Lands

both systems, and in case of conflict between

provisions of the two Acts, the Wilderness

Act provisions shall be applied.10

RIVER STUDIES

Any wild, scenic, or recreational river

area possessing one or more scenic, recreational, archeologic, or scientific values and in

a free-flowing condition, or upon restoration

to such condition, may be considered for inclusion in the Wild and Scenic Rivers System.

As of December 1976, 16 rivers have been

designated as components of the system, and

58 rivers have been nominated by Congress

for study. (See tables 2 and 3.) No Alaskan

rivers have been designated or nominated for

study. All Alaska National Interest Lands

proposals contain some wild and scenic

rivers designations. The Secretary of the Interior and the Secretary of Agriculture are

responsible for conducting studies of all

rivers nominated by Congress as potential

wild and scenic rivers, and submitting a

report on the suitability of each river to the

President, who, in turn, forwards his recommendation to Congress.11 Cooperation of appropriate State and local governments is

sought, and reports may be prepared as joint

Federal-State efforts. Priority is given to the

study of those potential additions to the system where there is the greatest likelihood of

development and there is the greatest proportion of private lands.12 Proposals for inclusion

of a river in the system must be accompanied

by a report to Congress and the President

showing the characteristics of the area that

affect its suitability for inclusion:

● The current status of land ownership

and use;

● The effect of inclusion on potential land

and water uses;

. The proposed administering agency;

● The extent to which cost and administration may be shared with State or local

government; and

s The estimated costs of acquiring necessary lands and interests in land and administrative costs .13

Prior to recommendation to Congress, the

report is reviewed by the Secretaries of the

Interior, Agriculture, and the Army, and the

Chairman of the Federal Energy Regulatory

Commission (FERC, formerly the Federal

Power Commission), and the heads of other

affected Federal agencies; and if non-Federal

Table 2.-Component Rivers of the National Wild and Scenic Rivers System*

9.

10.

11.

12.

Lower Saint Croix, Minn. (added by Congress 13.

in 1972)

Chattooga, N. C., S. C., and Ga. (added by 14.

Congress in 1974)

Rapid, Idaho (added by Congress in 1975) 15.

Upper Middle Snake, Idaho and Oreg. (added

by Congress in 1975) 16.

Rogue, Oreg.

Saint Croix, Minn. and Wis.

Salmon, Middle Fork, Idaho

Wolf, Wis.

Allagash Wilderness Waterway, Maine (added

by State action in 1970)

Little Miami, Ohio (added by State action in

1973)

Little Beaver, Ohio (added by State action in

1975)

New River, N.C. (added by State action in 1976)

● Only the names of the river, forks, and States are given here; the particular segment or segments designated by Congress are specified in 16 U.S.C. 1274, as amended. Further information about the rivers added by State action may be obtained

from appropriate State agencies.
Ch. 4 Federal Land Management Systems “ 85

Table 3.—Rivers Designated as Potential Additions to the

National Wild and Scenic Rivers System*

Designations made in October 1968

Allegheny, Pa.

Bruneau, Idaho

Buffalo, Term.

Chattooga, N. C., S. C., and Ga.

Clarion, Pa.

Delaware, Pa. and N.Y.

Flathead, Mont.

Gasconade, Mo.

Illinois, Oreg.

Little Beaver, Ohio

Little Miami, Ohio

Maumee, Ohio and Ind.

Missouri, Mont.

Moyie, Idaho

Designations made in January 1975

28.

29.

30.

31.

32.

33.

34.

35.

36.

37.

38.

39.

40.

41.

42.

American, Cal if.

Au Sable, Mich.

Big Thompson, Col.

Cache la Poudre, Col.

Cahaba, Ala.

Clark’s Fork, Wyo.

Colorado, Col. and Utah

Conejos, Cot.

Elk, Col.

Encampment, Col.

Green, Col.

Gunnison, Col.

Illinois, Okla.

John Day, Oreg.

Kettle, Minn.

15.

16.

17.

18.

19.

20.

21.

22.

23.

24.

25.

26.

27.

43.

44.

45.

46.

47.

48.

49.

50.

51.

52.

53.

54.

55.

56.

Obed, Term.

Penobscot, Maine

Pere Marquette, Mich.

Pine Creek, Pa.

Priest, Idaho

Rio Grande, Tex.

Saint Croix, Minn. and Wis.

Saint Joe, Idaho

Salmon, Idaho

Skagit, Wash.

Suwanee, Ga. and Fla.

Upper Iowa, lowa

Youghiogheny, Md. and Pa.

Los Pines, Col.

Manistee, Mich.

Nolichuckey, Term. and N.C.

Owyhee, South Fork, Oreg.

Piedra, Col.

Shepaug, Corm.

Sipsey Fork, West Fork, Ala.

Snake, Wyo.

Sweetwater, Wyo.

Tuolumne, Cal if.

Upper Mississippi, Minn.

Wisconsin, Wise.

Yampa, Col.

Dolores, Col.

Designation made in December 1975

57. Lower Middle Snake, Idaho, Oreg., and Wash.

Designation made in October 1976

58. Housatonic, Corm.

● Only the names of the rivers, forks, and States are given here; the particular segment or segments designated for study

are specified in 16 U.S.C. 1276, as amended.

lands are involved, the Governor(s) of the af- PROTECTIONS AFFORDED WILD

fected State(s). The comments received are AND SCENIC RIVERS

included in the submission to the President

and Congress.14 The final determination is Restrictions on Private Development made by Congress. Historically, however,

some rivers have been included directly in the Once designated as components of the syssystem without prior nomination and study. ’5 tern, river areas receive several types of pro40-8,14 () - ‘ig - 7
86. Analysis of Laws Governing Access Across Federal Lands

tection. Some activities of private landowners, which might jeopardize the character of

the river, can be restricted by the purchase of

land or the acquisition of scenic easements”

within the boundaries of the administrative

unit. The Act authorizes the appropriation of

funds for the acquisition of land and scenic

easements,

17 but it places some stringent

limits on the scope of this approach.

The first limit is found in the boundaries of

the administrative unit. Boundaries may include no more than an average of 320 acres

per mile on both sides of the river,l8 i.e., an

average of one-quarter of a mile on a side.

Within these boundaries, the Secretaries of

the Interior and Agriculture cannot purchase

title to an average of more than 100 acres per

mile. 19 Furthermore f they may not condemn

property if more than 50 percent of the total

area is owned by Federal, State, and local

governments, 20 nor may they condemn any

property within an incorporated city, village,

or borough that has in force “satisfactory

zoning ordinances” designed to protect the

river area.21 In areas of extensive private

landownership, regulation by purchase must,

of necessity, depend on the purchase or condemnation of scenic easements within the

river area boundaries.22

Restrictions on Water Resource Projects

The plenary Federal power over navigable

waters forms the basis for a second type of

protection. The Act restricts water resources

projects and other activities which directly

affect river areas of the system. FERC may

not license water resources or other projects

“on or directly affecting a river in the

system. “23 Other Federal agencies may not

assist projects which would have a “direct

and adverse effect on the values for which

such river was established.”24 However, the

Act does not prohibit projects above or below

the designated river area that do not invade

the area or unreasonably diminish the scenic,

recreational, and fish and wildlife values

present in the area on October 2, 1968, the

date the Act was passed.25 No Federal agency

may recommend authorization of, or appropriations for, a water resources project having a direct and adverse effect on protected

values of a component river area without

notifying the Secretary of the administering

department and Congress of its intention and

the possible effects on the protected values.26

Rivers nominated for potential inclusion in

the system are also subject to restrictions on

water resources projects until 1978 or for 3

years after nomination, whichever is later,

and during any additional time necessary to

complete study and congressional actions.27

In addition, the Secretaries of the Interior

and Agriculture and the heads of other Federal agencies must review their management

policies and activities affecting lands under

their jurisdiction that include, border, or abut

river areas nominated as potential components and determine the actions necessary to

protect the river area during the period of

review with particular attention given to

“scheduled timber harvesting, road construction, and similar activities” which might be

contrary to the purposes of the Act.28

Restrictions on Federal Land Management

Agencies

The Act also restricts the ability of Federal

land management agencies administering

units of the system to take or permit actions

that would detrimentally affect wild and

scenic rivers.

Each river is administered for the protection and enhancement of the values that justified its inclusion in the system.29 Each component is also managed according to the

general statutory authority of the administering agency with the most restrictive provisions of law applying in case of any conflict.30

River areas may thus become doubly or triply

protected as wild, scenic, or recreational

rivers, as units of national conservation systems, i.e., national parks, wildlife refuges, or

forests, and as part of the National Wilderness Preservation System. The administering

agency must cooperate with the Secretary of

the Interior and the appropriate water pollution control agencies for the purpose of elimi-
Ch. 4 Federal Land Management Systems ● 87

nating or diminishing the pollution of waters

in the component river area.31

RIGHTS-OF-WAY

The Wild and Scenic Rivers Act authorizes

“easements and rights-of-way upon, over,

under, across, or through any component of

the National Wild and Scenic Rivers System.” 32 Rights-of-way across any component

river areas administered by the Secretary of

the Interior are issued in accordance with

laws applicable to the National Park System.33 Rights-of-way for components administered by the Secretary of Agriculture are

issued under laws relating to the National

Forest System.34 Any conditions placed on the

issuance of a right-of-way or easement must

be related to the purposes of the Wild and

Scenic Rivers Act.

The principal legal bases for the grant of

easements or rights-of-way in National Park

System lands are found in (a) the general

authority to manage the national parks in

conformance with the purposes of preservation and recreation;35 (b) the Act of February

15, 1901, granting revocable rights-of-way

for electric powerlines, water, and communications projects on a finding that the use is

“not incompatible with the public interest; "36

(c) the Act of March 4, 1911, which grants a

right-of-way for a period of up to 50 years for

communications and electric power systems

subject also to a finding that the project is

“not incompatible with the public interest;”37

and (d) the ditches and canals acts,38 which

confer a right-of-way for drainage and irrigation projects subject to the filing of necessary

maps and documents and approval of the

location as one not interfering with proper

occupancy by the Government.

Easements through wild and scenic rivers

units administered by the Fish and Wildlife

Service are to be granted under park system

laws39 instead of the specific right-of-way provisions for wildlife refuge system lands.40

Rights-of-way across any wild and scenic

rivers managed by the BLM would also be

issued under Park Service standards, rather

than provisions applicable solely to public

lands.

The Secretary of Agriculture has general

right-of-way authority for forest system lands

under Title V of the Federal Land Policy and

Management Act,41 and has additional authority to grant easements for roads and

trails under laws relating to development of

the National Forest Transportation System.42

Other provisions of the Wild and Scenic

Rivers Act that are relevant to access to

minerals on non-Federal land are: (a) the review process for potential rivers, which includes an assessment of the effects of the designation on the existing and potential uses of

the lands and waters involved;43 (b) the scenic

and recreational river classifications, which

allow roads and some development;44 and (c)

the provision assuring the existing rights of

any State, including the right of access, to the

bed of navigable waters located in a component river area.45
88 “ Analysis of Laws Governing Access Across Federal Lands

FOOTNOTE REFERENCES FOR NATIONAL WILD

AND SCENIC RIVERS SYSTEM

’16 U.S.C. 1271 et seq.

Z16 U.S. C. 1Z71. AS defined in the Wild and Scenic

Rivers Act: “ ‘Free-flowing, ’ as applied to any river or

section of a river, means existing or flowing in natural

condition without impoundment, diversion, straightening, rip-rapping, or other modification of the waterway.

The existence, however, of low dams, diversion works,

and other minor structures at the time any river is proposed for inclusion in the national wild and scenic

rivers system shall not automatically bar its consideration for such inclusion: Provided, that this shall not be

construed to authorize, intend, or encourage future

construction of such structures within components of

the National Wild and Scenic Rivers System. ” 16 U.S.C.

1286(b).

3A listing of component rivers and potential additions

to the National Wild and Scenic Rivers System is included in tables 2 and 3. A river may be included by

State action if: (1) it is designated as a wild, scenic, or

recreational river pursuant to State law; (2) it is permanently administered by an agency or political subdivision of the State without expense to the United States;

and (3) the Secretary of the Interior, upon application

by the Governor of the State, finds that it meets the

criteria in the Act and approves it for inclusion in the

System. 16 U.S,C. 1274.

4

16 U.S.C. 1273(b).

516 U.S,C. 1281(a).

‘Id.

7

16 U.S.C. 1281(c).

’16 U.S, C. 1281(d),

’16 U.S. C. 1281(c).

’

0

16 U.S. C. 1281(b).

“16 U.S.C. 1275(a).

“Id.

“Id.

1416 u.s.C. 1275(b) and(c).

l$For example, eight original component rivers and

the Rapid River, Idaho and Upper Middle Snake River,

Idaho and Oregon were included by direct congressional action. Act of December 31, 1975, Public Law

94-199, section 3(a), 89 Stat. 1117,

18A scenic easement for purposes of the Wild and

Scenic Rivers Act, “means the right to control the use

of land (including the air space above such land) within

the authorized boundaries of a component of the wild

and scenic rivers system, for the purpose of protecting

the natural qualities of a designated wild, scenic, or

recreational river area, but such control shall not affect, without the owner’s consent, any regular use exercised prior to the acquisition of the easement. ” 16

U.S.C. 1286(c),

’716 U.S.C. 1277(a).

1816 u.S. C. 1274(b).

’916 U.S.C, 1277(a).

Z016 U.S.C. 1277(b).

2

’16 U.S,C. 1277(c).

22 Condemnation of easements is specifically exempted from the acreage limitations of 16 U.S.C.

1277(a).

’316 u.S, C. 1278(a).

Z.’ Id.

251d.

2616 U.S, C. 1278(c).

2716 U,S. C. 1281,

2a16 U.S.C. 1283(a).

2916 U.S. C. 1281.

3016 U.S.C. 1281(c).

3

’16 U.S.C. 1283(c).

3216 U.S.C. 1284(g).

331d.

341d.

3516 U.S. C, 1 et seq. See discussion in section on National Parks.

38Act of February 15, 1901, c. 372, 31 Stat. 790, 43

U.S.C, 959, 16 U.S.C, 79,522,

37Act of March 4, 1911, c.238, 36 Stat, 1253,43 U.S.C.

961, 16 U.S.C. 5,420,523.

3843 U.S.C. 946-954.

3916 U.S, C, 1284(g).

4016 U.S.C. 668dd(d)(l).

“43 U,S.C. 1761 et seq. See discussion in section on

National Forest System.

4216 U.S.C. 532-538.

4316 U.S.C. 1275(a).

4416 U.S.C, 1273(b).

4516 U.S.C, 1284(f).
Ch. 4 Federal Land Management Systems ● 89

NATIONAL WILDERNESS

The Wilderness Act of 19641 created the

National Wilderness Preservation System to

provide “the benefits of an enduring resource

of wilderness”2 for the whole Nation. Congressionally designated wilderness areas in

national parks, forests, wildlife refuges, and

public lands are managed under special rules

“for the use and enjoyment of the American

people in such a manner as will leave them

unimpaired for future use and enjoyment as

wilderness." 3 In keeping with the purpose of

wilderness preservation, the use of wilderness areas is highly restricted. Statutory provisions for access through wilderness areas

are limited, since such use, generally, i s

viewed as inconsistent with the maintenance

of the primeval character of wilderness.

Section 2(c) of the Wilderness Act4 describes the special character of wilderness

that the Act seeks to preserve:

A wilderness, in contrast with those areas

where man and his own works dominate the

landscape, is hereby recognized as an area

where the earth and its community of life are

untrammeled by man, where man himself is a

visitor and does not remain.5

Note: Footnotes for this section appear on pp. 97-99.

PRESERVATION SYSTEM

For the purposes of the Wilderness Act, a

“wilderness area” is further defined as:

. , , an area of undeveloped Federal land

retaining its primeval character and influence, without permanent improvements or

human habitation, which is protected and

managed so as to preserve its natural conditions and which (1) generally appears to have

been affected primarily by the forces of

nature, with the imprint of man’s work substantially unnoticeable; (2) has outstanding

opportunities for solitude or a primitive and

unconfined type of recreation; (3) has at least

five thousand acres of land or is of sufficient

size as to make practicable its preservation

and use in an unimpaired condition; and (4)

may also contain ecological, geological, or

other features of scientific, educational,

scenic, or historical value.6

Most of Alaska’s land unquestionably fits this

characterization.

7 In the current debate over

national interest lands in Alaska one of the

most controversial issues is how much of the

land proposed for inclusion in the national

conservation systems should be legislatively

classified as wilderness.

Table 4.— Wilderness Areas in Alaska — ——

Bering Sea Wilderness—

Bering Sea National Wildlife Refuge, Alaska

Bogoslof Wilderness—

Bogoslof National Wildlife Refuge, Alaska

Chamisso Wilderness—

Chamisso National Wildlife Refuge, Alaska

Forrester Island Wilderness—

Forrester Island National Wildlife Refuge, Alaska

Hazy Islands Wilderness—

Hazy Islands National Wildlife Refuge, Alaska

Saint Lazaria Wilderness—

Saint Lazaria National Wildlife Refuge, Alaska

Simeonof Wilderness—

Simeonof National Wildlife Refuge, Alaska

Date of Designation

Oct. 23, 1970

Oct. 23,1970

Jan. 3, 1975

Sept. 28, 1969

Oct. 23, 1970

Oct. 23, 1970

Oct. 19,1976

Tuxedni Wilderness—

Tuxedni National Wildlife Refuge, Alaska

Oct. 23, 1970
90 S Analysis of Laws Governing Access Across Federal Lands

DESIGNATION OF

WILDERNESS AREAS

Lands may be added to the National Wilderness Preservation System only by an act of

Congress.8 The Wilderness Act itself does not

establish any single process to be used before

Congress acts on potential wilderness designations. Several approaches have been used

in adding to the wilderness system.

Instant Wilderness

The first approach has been called “instant wilderness”—certain areas are included in the system by direct congressional

action without prior congressional nomination or executive review. More than half of all

wilderness designations have been made this

way. The 1964 Wilderness Act designated 54

national forest areas containing some 9.1

million acres,9 which had been administratively classified as “wilderness,” “wild,” or

“canoe” areas, as the original components of

the system. The Eastern Wilderness Act of

1974,

10 which applied to lands in national

forests east of the 100 meridian, added 16

areas totaling some 207,000 acres in 13 Eastern States to the system. None of these areas

had been subject to any wilderness study

process. The Omnibus Wilderness Act of

1976, 11 creating wilderness areas in the National Wildlife Refuge System and the National Forest System, also included wilderness designations for some areas which had

never been part of any wilderness study. Finally, the Endangered American Wilderness

Act12 of 1978 designated 17 wilderness areas,

only 1 of which had ever been subject to wilderness study.

Wilderness Study

The second approach, often called “wilderness study, ” was first expressed in sections

3(b) and 3(c) of the Wilderness Act. Those

provisions directed Federal land managers to

survey certain lands within their jurisdiction

over a 10-year period and make recommendations to the President on the suitability of

such lands for designation as wilderness.

Section 3(b) required the Forest Service to

survey the 34 areas classified as “primitive”13 on the date of enactment; section 3(c)

required the Secretary of the Interior to

review all roadless areas of 5,000 acres or

more in any unit of the Park System and roadless areas and roadless islands in wildlife

refuges and game refuges .14

Under these provisions, the Secretaries of

the Interior and Agriculture were required to

make reports to the President within 10

years.

15 The Act mandated public notice of

any potential designations,16 hearings in the

affected areas,17 and consultation with State

and local officials prior to making any report. 18 The Wilderness Act required that the

President make recommendations to Congress on the basis of the departmental

reports. Recommendations on at least onethird of all areas were to be made within 3

years of enactment, recommendations on at

least two-thirds within 7 years, and all areas

were to be completed within 10 years.19

The study provisions in the original Act did

not establish any policies or procedures for

interim management for areas under study.

None of the areas covered by sections 3(b)

and 3(c) was subject to multiple-use management. Primitive areas were under protective

Forest Service management20 and the Act

stated that, “Nothing contained herein shall,

by implication or otherwise, be construed to

lessen the present statutory authority of the

Secretary of the Interior with respect to the

maintenance of roadless areas within units of

the National Park System.”2l

These studies required by the Wilderness

Act were completed by 1974. The Forest

Service is continuing a wilderness study effort, the Roadless Area Review and Evaluation (RARE II), which grew out of difficulties

encountered in meeting the mandate of section 3(b).22 However, RARE II covers all roadless areas under the jurisdiction of the Forest

Service, not just areas classified as primitive,

and is not subject to any timetable, nor is

there any requirement that the President

make reports on the recommendations of the

Forest Service.
Ch. 4 Federal Land Management Systems “ 91

Section 603 of the Federal Land Policy and

Management Act established a new wilderness study program for public lands administered by the Bureau of Land Management

(BLM), which, in many ways, is similar to the

section 3(b) and 3(c) study .23 The entire program must be completed by October 21, 1991,

but the Secretary of the Interior must make

recommendations to the President by July 1,

1980, on all BLM “primitive” or “natural”

areas .

24

Section 603 contains two provisions not

found in the Wilderness Act. Mineral surveys

must be conducted by the Geological Survey

and the Bureau of Mines before any recommendation is made to the President.25 In addition, an interim management policy is established.

During the period of review of such areas

and until Congress has determined otherwise, the Secretary shall continue to manage

such lands according to his authority under

this Act and other applicable laws in a manner so as not to impair the suitability of such

areas for preservation as wilderness subject, however, to the continuation of existing

mining and grazing uses and mineral leasing

in the manner and degree in which the same

was being conducted on the date of approval

of this Act. 26

Congressional Nominations

Finally, Congress has often acted to require wilderness study of specific areas of

land. 27 Generally, when this is done the law

specifying the study area also requires that

the study be conducted pursuant to section

3(d) of the Wilderness Act and sets a time

limit on the period for study. Most specific

study designations also contain provisions

concerning interim management practices

during the study period.

Wilderness areas are, unless otherwise

provided by Congress, managed by the agency which had jurisdiction over the area immediately prior to its inclusion in the National

Wilderness Preservation System.28 In the Department of the Interior, the agencies that

may administer components of the wilderness

system are the National Park Service, the

Fish and Wildlife Service, and the BLM. The

Secretary of Agriculture administers wilderness areas of the National Forest System

through the Forest Service. Wilderness areas

are subject to all general laws governing the

department and agency administering them,

but management must be consistent with the

provisions of the Wilderness Act. Each managing agency is responsible for preserving the

wilderness character of areas under its jurisdiction. The area must be managed for the

purposes for which it was established (i.e.,

park, forest, refuge, wild and scenic rivers) in

a manner that will preserve its wilderness

character.

29 Wilderness areas are to be

devoted to the public purposes of recreational, scenic, scientific, educational, conservation, and historical use.30

ACTIVITIES IN WILDERNESS AREAS

The provisions of the Wilderness Act and

the regulations thereunder, which control activities and uses in wilderness areas, are protective and stringent. The general policy for

the use of wilderness areas as provided in the

Act is:

Except as specifically provided for in this

Act, and subject to existing private rights,

there shall be no commercial enterprise and

no permanent road within any wilderness

area designated by this Act and, except as

necessary to meet minimum requirements for

the administration of the area for the purpose of this Act (including measures required in emergencies involving the health

and safety of persons within the area), there

shall be no temporary road, no use of motor

vehicles, motorized equipment or motorboats, no landing of aircraft, no other form of

mechanical transport, and no structure or installation within any such area .31

This general rule is subject to certain exceptions, specifically provided in the Act. The

use of aircraft or motorboats, where these

uses have already become established, may

be permitted to continue subject to such restrictions as the Secretary of Agriculture
92. Analysis of Laws Governing Access Across Federal Lands

.- . 4 “

Photo Credit: George Walierstein

High camp in the Wrangell Mountains

Secretary may also

such measures for

and diseases” as he

deems desirable.32 The

provide for the use of

“control of fire, insects,

deems desirable.33 Activities for the purpose

of gathering information about mineral or

other resources may be conducted in national

forest wilderness areas in a reamer compatible with preservation of the wilderness environment. 34 National Forest and BLM wilderness areas are to be “surveyed on a planned,

recurring basis consistent with the concept of

wilderness preservation” by the Geological

Survey and the Bureau of Mines under a program developed by the Secretary of the Interior in consultation with the Secretary of

Agriculture. Reports on the mineral values, if

any, of such wilderness areas are to be made

available to the public and submitted to the

President and Congress.35 Mining and mineral

leasing activities are permitted to continue on

national forest wilderness areas subject to

regulation by the Secretary of Agriculture.36

After 1983 the minerals in wilderness areas

are withdrawn from appropriation or disposition under the mining and mineral leasing

laws.

The most important exception to the general prohibitions on access in the Wilderness

Act is found in section 4(d)(4)37 which provides:

Within wilderness areas in the national

forests designated by this Act, (1) the President may, within a specific area and in accordance with such regulations as he may

deem desirable, authorize prospecting for

water resources, the establishment and

maintenance of reservoirs, water conservation works, power projects, transmission

lines, and other facilities needed in the public interest, including the road construction
Ch. 4 Federal Land Management Systems .93

and maintenance essential to development

and use thereof, upon his determination that

such use or uses in the specific area will better serve the interests of the United States

and the people thereof than will its denial;38

This provision also applies to wilderness

areas managed by the BLM.39 This limited exception provides an institutional mechanism

for access through wilderness areas in unusual and critical situations where such access is demonstrably in the national interest.

Livestock grazing that is established on national forest and public lands wilderness

areas prior to wilderness designation may be

continued subject to reasonable regulation by

the appropriate Secretary.40 Commercial activities that are proper for realizing the recreational and other wilderness purposes of the

areas are permitted.41

The Act provides for adequate access to

private or State owned land that is “completely surrounded” by a national forest or

public lands wilderness area, either by the

grant of such rights as are necessary or by an

exchange of the surrounded land for other

federally owned land in the State of approximately equal value.42

Ingress and egress to valid mining claims

and other valid occupancies “wholly within”

a national forest or public lands wilderness

area is permitted subject to regulation consistent with the preservation of wilderness.

Access to these surrounded areas is limited

to means that have been or are being customarily enjoyed with respect to other such areas

similarly situated .43

The concept of wilderness management described in the Act is intended to preclude the

use of wilderness areas for all inconsistent

purposes. No permanent or temporary road

or other manmade structures or facilities are

to be allowed except as specifically provided

for in the Act. A wilderness area is to be

preserved in its primitive, unaltered state.

Most means of access, even footpaths, are to

some extent inconsistent with preservation of

wilderness as an area “untrammeled by

man;” however, necessary access for purposes of wilderness recreation and management is clearly intended.44 New access routes

or intensive use of existing routes for any purpose could be detrimental and destructive of

wilderness character. Accordingly, access in

wilderness areas may be strictly limited

when necessary.

Access uses of wilderness areas recognized in the Wilderness Act are limited to the

following:

a.

b.

c.

d.

e.

f.

g.

h.

Preexisting private rights (It is assumed that “private” includes State

and local governments);

Wilderness recreation and management access routes and facilities;

Emergency purposes;

Established use of motorboats and aircraft where use. predates wilderness

designation—subject to regulation by

the management agency;

Presidential authorization of the use of

national forest and public lands wilderness areas for projects and facilities in

the national interest;

Adequate access rights for State and

private lands completely surrounded

by a national forest or public lands wilderness area;

Access to valid mining claims and other

valid occupancies by means that are

currently or customarily enjoyed in

similarly situated areas; and

Special provisions applicable to specific wilderness areas by congressional

action.

Additional authorization for access uses of

wilderness areas may be found in “the other

purposes for which an area was established;” 45 that is, use as a national park, a

wildlife refuge, a forest, public lands, wild

and scenic rivers, or associated uses of those

land classification systems. However, any

such use must be consonant with wilderness

character. 46 Even if access use of wilderness

areas within each of the land management
94 ● Analysis Of Laws Governing Access Across Federal Lands

systems is found to be compatible with provisions of the Wilderness Act, it must also comply with the laws and regulations of the land

management agency and land classification

system.

PARK WILDERNESS

The National Park Service recognizes the

established use of aircraft and motorboats

that predates the creation of wilderness

areas, and includes provisions relating to

such access in its recommended wilderness

legislation. However, all preestablished motorized modes of access to wilderness areas

are not necessarily recognized.47 Motorized

vehicles are banned in designated wilderness

areas in the park system, except for minimum

access and management purposes and emergencies. As discussed in the section on the

National Park System, rights-of-way and access permits for park areas are based on the

general authority to manage and regulate the

park system, the 1901 Act, the 1911 Act, and

the ditches and canals acts.48 These Acts require that the proposed use be compatible

with the public interest or not interfere with

Government use of the reservation. Plainly,

most access uses would be contrary to the explicit provisions of the Wilderness Act and

would probably be denied on that basis. Any

grant of access through a wilderness area

that is not consistent with wilderness preservation and is not based on the Wilderness Act

exceptions might be found to be unlawful on

judicial review.

Access is assured to private lands completely surrounded by national park wilderness.

49 Such access rights are, however, subject to regulation by the Park Service. Where

access proves to be incompatible with wilderness preservation or where the private owner

so desires, the surrounded lands may be exchanged under laws applicable to the wilderness system and the park system. Mining inholdings and other valid occupancies wholly

within a park wilderness area are also

assured access as consistent with the Wilderness Act and by means customarily enjoyed in

similarly situated areas.50 The Mining in the

Parks Act of 1976 allows the Secretary of the

Interior to regulate mining activities within

the parks, including wilderness areas.51 Any

other access through a national park wilderness area, as through a national park, would

require congressional authorization. The limited Presidential exception of the Wilderness

Act does not apply to national parks.

WILDLIFE REFUGE WILDERNESS

The National Wildlife Refuge System wilderness areas are administered by the Fish

and Wildlife Service. Refuge system wilderness regulations follow provisions of the Wilderness Act and do not allow temporary or

permanent roads, manmade structures, or

the use of motorized transport within wilderness areas.

52 Subject to such restrictions as

the Director may impose, the established use

of aircraft and motorboats may be continued

in refuge wilderness areas.53 Access to private property and valid occupancies within

refuge wilderness areas is recognized. Adequate access is defined as the combination of

modes and routes of travel that will best

preserve the wilderness character of the

landscape. The designated mode of travel

must be reasonable and consistent with

accepted, conventional, and contemporary

modes of travel in that vicinity. Access use

must be consistent with the reasonable purposes for which the land is held. The Director

will issue access permits designating the

means and route of travel that will preserve

the area’s wilderness character.54

Wildlife refuge wilderness areas are also

subject to general refuge regulations as well

as special regulations and orders issued for

particular refuges. These regulations restrict

the operation of aircraft, motorized vehicles,

and boats to designated areas and routes

within a refuge, and provide that such access

may be restricted and limited as necessary.55

Right-of-way authorization for wildlife refuge

areas

56 requires that the access use be compatible with the purpose for which the indi-
Ch. 4 Federal Land Management Systems ● 95

vidual refuge was established. Other rightof-way provisions in the 1901 Act, the 1911

Act, and the ditches and canals acts, which

are applicable to wildlife refuges, also must

meet the compatibility standard. However,

section 668dd(d) and the regulations on refuge rights-of-way appear to be controlling. 57

Since a wilderness area is established t o

preserve wilderness characteristics, acces s

uses that are deleterious to these values are

not consistent, and, therefore, do not meet the

standards required for issuance. 58 There is no

provision in the Wilderness Act for Presidential national interest authorizations of access

use of refuge areas. Any access use of refuge

wilderness would, if incompatible with wilderness status, require congressional approval.59

BLM WILDERNESS

Wilderness areas on public lands administered by the BLM are subject to the provisions of the Wilderness Act applicable to national forest wilderness areas.60 The Federal

Land Policy and Management Act of 197661

--

the BLM Organic Act— specifically excludes

wilderness areas from the right-of-way authority granted to the Secretary of the Interior for public lands.62 Any access use must

therefore be consistent with the purposes of

wilderness preservation and recreation or be

included in one or more of the specific exceptions to the Wilderness Act. These exceptions

recognize existing private rights, preestablished use of aircraft and motorboats within a

given area, and access use in emergency situations. The President may authorize use of

BLM wilderness areas for projects in the national interest.63 Any other access use requires congressional authorization.

FOREST WILDERNESS

National forest wilderness areas are administered by the Forest Service of the Department of Agriculture. Regulations issued

by the Forest Service for administration of

wilderness areas64 provide that “except as

provided in the Wilderness Act, or subsequent legislation establishing a particular

wilderness unit . . . there shall be in the National Forest Wilderness . . . no temporary or

permanent roads; no aircraft; no dropping of

materials, supplies, or persons from aircraft;

no structures or installations; and no cutting

of trees for nonwilderness purposes."65 The

Chief of the Forest Service may permit the

landing of aircraft and use of motorboats

within any wilderness where these uses were

established prior to wilderness designation.66

Maintenance of landing strips, heliports, and

helispots, which preexist wilderness designation, may also be allowed.67

Adequate access to surrounded State and

private lands is defined in the regulations as

the combination of routes and modes of travel

that will, as determined by the Forest Service, cause the least lasting impact on the

primitive character of the land, and which, at

the same time, will serve the reasonable purposes for which the surrounded land is held

or used. Access by routes or modes of travel

not available to the general public must be

authorized in writing by the Forest Service.

The authorization prescribes the means and

the routes of travel to and from the lands and

sets forth the conditions necessary to preserve the wilderness characteristics while

allowing adequate access.68

Persons with mining claims or other valid

occupancies wholly within forest wilderness

areas are permitted access by means consistent with the preservation of wilderness that

are or have been customarily used for other

such occupancies surrounded by national forest Wilderness.69 When appropriate, the Forest Service will issue an access permit specifying the mode and route and any protective

conditions. 70

The Wilderness Act provides that the

President may allow the use of a national forest wilderness area for projects in the national interest.” Wilderness areas are specifically excluded from the right-of-way authorization granted to the Secretary of Agricul-
96 ● Analysis of Laws Governing Access Across Federal Lands

ture in Title V of the Federal Land Policy and

Management Act of 1976 which is the comprehensive right-of-way authority for national forests.72 Easements for roads under

the provisions for the development of the National Forest Transportation System73 would

appear to be precluded by the prohibition of

the Wilderness Act that there be no road in

any wilderness area.74 Congressional authorization is needed for any proposed access use

that does not come under one or more exceptions to the Wilderness Act.

WILD AND SCENIC

RIVERS WILDERNESS

The National Wild and Scenic Rivers System75 is a land classification system, which,

like the National Wilderness Preservation

System, does not have a separate management agency. Instead, wild and scenic rivers

are managed by the Forest Service, the National Park Service, the Fish and Wildlife

Service, or the BLM. Wild and scenic rivers

within wilderness areas are managed according to provisions applicable to both systems, and, in the event of conflict, the Wilderness Act provisions prevail.76 Access through

or over wild and scenic rivers areas that are

also components of the wilderness system is

granted under the authority of the managing

agency as interpreted in light of both the Wild

and Scenic Rivers Act and the Wilderness

Act. 77 Access over river areas managed by

the Department of the Interior may be

granted according to the rules applicable to

the National Park System. Access permits for

components administered by the Secretary of

Agriculture are issued under laws applicable

to the National Forest System.78

MANAGEMENT OF WILDERNESS

STUDY AREAS

The entire National Wilderness Preservation System now comprises approximately 16

million acres, which is a small fraction of all

roadless areas in the United States. The

Forest Service, in its RARE II program, is

evaluating over 66 million acres of land to

determine its suitability for designation as

wilderness. 79 It is estimated that the BLM

wilderness review mandated by section 603

of the Federal Land Policy and Management

Act of 1976 will evaluate over 120 million

roadless acres and 13,000 roadless islands.80

This land will be studied for wilderness

potential, but none of it has as yet been formally designated as a wilderness study area.

During the period of initial evaluation and

up to final disposition of the wilderness recommendation by the Congress, these lands

will be in some form of restrictive management. While it is clear that multiple use management will not be practiced, it is difficult to

ascertain exactly what standards will be

used in managing wilderness study areas.

There is some statutory guidance on the

management of BLM lands under wilderness

study. Section 603(c) of the BLM Organic Act

provides:

The Secretary shall continue to manage

such lands according to his authority under

this Act and other applicable law in a manner so as not to impair the suitability of such

areas for preservation as wilderness, subject, however, to the continuation of existing

mining and grazing uses and mineral leasing

in the manner and degree in which the same

was being conducted on the date of approval

of this Act. Provided, that in managing the

public lands the Secretary shall by regulation or otherwise take any action required to

prevent unnecessary or undue degradation

of the lands and their resources or to afford

environmental protection.81

Preliminary indications are that BLM intends

to apply a strict interpretation of this provision to all proposals for new activity.82

There is less statutory guidance with respect to Forest Service lands. In the Eastern

Wilderness Act, Congress designated 17 wilderness study areas in national forests. The

Act stated:

Nothing in this Act shall be construed as

limiting the authority of the Secretary of
Ch. 4 Federal Land Management Systems ● 97

Agriculture to carry out management programs development, and activities in accordance with the Multiple-Use SustainedYield Act of 1960 within areas not designated for review in accordance with the provisions of this Act.83

Presumably, this means that almost all land

in the RARE II inventory of potential wilderness areas is subject to management under

the principles of the Multiple-Use SustainedYield Act (although one of the uses specified

in that Act is the preservation of wilderness).

84

The Forest Service has indicated that it

would not approve any use inconsistent with

wilderness on an existing roadless area without filing an environmental impact statement,

either with the permit or license approving

the use or as a required part of a land management plan.

85

The question of authorizing nonwilderness

uses is closely related to the problem of removing lands from potential wildernes s

status without a negative determination by

Congress. Both the Forest Service and the

BLM have indicated a desire quickly to identify roadless areas that should not be recommended for wilderness status, and to return

them to multiple use management. The mechanics of this process have not been completely worked out. BLM officials have indicated that they do not presently intend to

prepare environmental impact statements on

the decision not to recommend an area for

further study.86 Forest Service policy appears

to be similar.87 The prospect of litigation over

particular areas seems inevitable.88

These decisions concerning positive evaluation and negative evaluation of potential

study areas are enmeshed in the new land

management planning procedures that both

agencies are now being required to take for

the first time. Plans must be filed for every

management unit in both systems.89 The Forest Service allows land to drop out of the

RARE 11 inventory if a management plan is

filed that provides for nonwilderness use.90

This meets the requirement of the out-ofcourt settlement that led to RARE II; such

plans are always accompanied by environmental impact statements. BLM—which was

required to prepare such plans in more recent legislation91—has not yet indicated if it

intends to use the plans as a mechanism to

remove areas from potential wilderness protections.

FOOTNOTE REFERENCES FOR NATIONAL WILDERNESS

PRESERVATION SYSTEM

’16 U.S,C. 1131-1136,

2

16 U.S.C. 1131(a).

3

1d.

4

16 U.S.C. 1131[c).

5

1d.

‘Id.

7

The Joint Federal-State Land Use Planning Commission for Alaska estimates that about zoo million acres

of Federal lands are of “primitive” character and there

are about 75,OOO acres in existing wildlife refuges

classified as wilderness. See the D-2 book inventory of

Alaska land values in Federal-State Land Use Planning

Commission for Alaska, “The D-2 Book” Lands of National Interest in Alaska (May 1977) at p. 8, Alaska

wilderness areas are listed in table 4.

8

16 U.S. C. 1132(e). As of February 1978, there were

177 congressionally designated wilderness areas encompassing approximately 16 million acres. Ninety-two

wilderness areas had never been the subject of wilderness reviews, H, Rept. 95-1045 pt. I., pp. 134-35 (1978).

916 U,S. C. 1132(a).

IOpublic Law 93-622, 88 Stat, 2096, Jan. 3, 1975.

‘lPublic Law 94-557,90 Stat. 2633, Oct. 19, 1976.

‘

z

Public Law 95-327,92 Stat. 40, Feb. 14, 1978.

’316 U.S.C. l132(b). A national forest “primitive

area” is subject to protective management similar to

that for wilderness areas. See 36 CFR 293.17.

1416 U.S,C. 1132(c). A roadless area is defined by Interior Department regulations as “a reasonably compact area of undeveloped Federal land which possesses

the general characteristics of a wilderness and within

which there is no improved road that is suitable for

public travel by means of four-wheeled, motorized vehicles intended primarily for highway use. ” 43 CFR
98 ● Analysis of Laws Governing Access Across Federal Lands

19.2(e). Roadless island means a roadless area that is

surrounded by permanent waters or that is markedly

distinguished from surrounding lands by topographical

or ecological features such as precipices, canyons,

thickets, or swamps. 43 CFR 19.2(f).

’516 U.S.C. l132(b) and 16 U.S.C. 1132(c).

“16 U,S.C. l132(d)(l)(A).

“16 U,S.C. l132(d)(l)(B).

’

8

16 U.S.C. 1132(d)(l)(C).

’916 U,S,C. l132(b) and 16 U.S.C. 1132(c).

2036 CFR 293.17.

z116 U.S,C, 1132(c).

Zzsee Sjerra (lub v. Butz, 349 F. SUpp. 934 (N.D. Cal.

1972), Wyoming Outdoor Coordinating Council v, Butz,

484 F. 2d 1244 (Ioth Cir. 1973), and Senate Comrm on

Energy and Natural Resources, Roadless Area Review

and Evaluation (RARE II), Serial No. 95-92, (Committee

Print 1978), p. 5.

2343 U,S, C. 1782(a).

241d,

zsIdo

2643 U.S.C. 1782(c).

Zrsee, for example, Act of October 19, 1976, public

Law 94-557, section 3,90 Stat. 2635; Act of October 20,

1976, Public Law 94-567, section 5, 90 Stat. 2665. See

note following 16 U. S.C.A. 1132 (1977 supp.), p. 32.

2’16 U.S.C. l131(b).

2916 U.S.C, 1133(b).

3oId,

3116 U.S.C. 1133(c).

3z16 U,S. C. 1133(d)(l). The Secretary of the Interior

establishes the conditions for the use of planes and

motorboats in wilderness areas under his jurisdiction.

See, infra, note 47.

331d.

3416 U.S.C. l133(d)(2).

‘

s

Id.

3616 U.S.C, l133(d)(3).

3716 U.S.C. 1133(d)(4).

~qd.

3043 U,S,C. 1782(c).

4016 U.S.C. 1133(d)(4).

4116 U.S, C. 1133(d)(6).

4216 U.S,C. 1134(a). Adequate access is defined in

Fish and Wildlife Regulations to mean the combination

of modes and routes of travel that will best preserve the

wilderness character of the landscape. 50 CFR 35,13.

4316 U.S.C. 1134(b).

44See 16 U.S.C. 1133(c), l133(d)(l)(6).

4516 U.S.C. l133(b).

461da

47Department of the Interior, National Park Service,

Management Policies, 1975, p. VI-6, cited in Krutilla

and Rice, “Management Systems, Land Classifications,

and Use Restrictions” reprinted in House Comm. on Interior and Insular Affairs, Subcomm. on General Oversight and Alaska Lands. Background ln~ormation for

Alaska Lands Designations, (Committee Print No. 4)

95th Cong., 1st sess., p. 174 (1977).

48See section on National parks.

4916 U.s.c. 1 laq(a).

5016 U,s.c. l13@],

51 lfj u.S. C. 1901 et seq.

SZ50 CFR 35.5.

5350 CFR 35.5(b).

5450 CFR 35.13.

s350 CFR pts. 25-29.

5616 U.S.C. 668dd(d).

575(3 CFR 19.21-1(;);

~asee DeDar@ent of the Interior, Fish and Wildlife

Ser~ce, Final Environmental Statement on the Operation of the National Wildlife Refuge System (1976).

s943 U.S, C, 1782(c).

’43 U.S.C. 1701 et seq.

’143 U.S,C. 1761(a).

6216 u.S.C. l133(a] and(d).

6316 U.S,C, l133(d)(4).

“36 CFR pt. 293.

‘s36 CFR 2936.

“36 CFR 293.6(d).

“Id.

’836 CFR 293.12.

‘g36 CFR 293.13.

‘“Id.

7

’16 U.S.C. 1133(d)(4).

7243 U.S. C, 1761(a).

7316 U.S,C. 532-538, 16 U.S.C. 1608.

’416 U,S.C. 1133(C).

7316 u.S. C. 1271 et seq.

7

’16 U.S,C. 1281(b).

7716 U.S.C. 1284(g) and 16 U.S.C. 1281(b).

7’316 U.S,C. 1284(g).

7

’42 F.R. 59688, Nov. 18, 1977.

‘Hearings on the Federal Land Policy and Management Act and Grazing Fee Moratorium of 1977 Before

the Subcomm. on Indian Affairs and Public Lands of the

House Comm. on Interior and Insular Affairs, 95th

Cong., lst. sess., Serial No. 95-25 (1978) at p. 103.

(“Hearings”).

8143 U.S.C, 1782(c).

e~see Jan, 9, 1978, Memorandum of the Deputy SOlicitor, “Application of Mining and Grazing Laws to

Areas under Review for Inclusion into Wilderness System: Section 603 Federal Land Policy Management Act

of 1976” reprinted in Hearings, supra, note 80, pp.

131-44. BLM has indicated that areas which meet the

minimum criteria for wilderness will be subject to stringent interim protection. A recent letter to a permit applicant reflects this policy: “Those activities which are

of a permanent nature or not easily rehabilitated . . .

camot be allowed until a formal wilderness review of

the areas has been completed. ” Letter from Department of the Interior, Bureau of Land Management,

Fairbanks District Office to W. G. M., Inc., dated Apr.

14, 1978 provided by Dr. E, Beistline, Dean of the College of Mineral Industries, University of Alaska, a member of the assessment advisory panel.

a’fiblic Law 93-622, section 4(d), 88 Stat. 2098.

8416 U.S.C. 1604(e)(l), added by the National Forest

Management Act of 1976, Public Law 94-588, 90 Stat,
Ch. 4 Federal Land Management Systems ● 99

2949, Oct. 22, 1976, implicitly amends the Multiple-Use

Sustained-Yield Act of 1960 to include the preservation

of wilderness:

“In developing, maintaining, and revising plans

for units of the National Forest System pursuant to

this section, the Secretary shall assure that such

plans: (1) provide for multiple use and sustained

yield of the products and services obtained therefrom in accordance with the Multiple-Use Sustained-Yield Act of 1960 and, in particular, include coordination of outdoor recreation, range,

timber, watershed, wildlife and fish, and wilderness. ”

Bssee Forest Service, RARE 11 Notebook, P“ III-A!

Forest Service, Forest Service Manual, Chapter 8260,

Interim Directive No. 5 (July 21, 1977), p. 3, section

(8260)(b)(l)(f).

8@Departrnent of the Interior, Bureau of Land

Management, Draft Wilderness Review Procedures,

Feb. 27, 1978, p. 13. “Since legislation will be required

for an area to be included in the National Wilderness

Preservation System, the report for each study area being recommended as suitable will be accompanied by

an environmental assessment record or environmental

impact statement. An environmental assessment record or environmental impact statement will not be required for areas recommended as nonsuitable. ”

BTForest Service, RARE II Notebook, “RARE II Evaluation,” figure 1. However, some areas will drop out of

the RARE II inventory after filing of a land management

plan that contains an environmental impact statement.

‘aThe cases listed, supra, note 22 seem to indicate

that an agency decision to allow development or other

activity in a previously pristine area would require an

environmental impact statement.

’916 U.S.C. 1604.

‘Supra, note 85.

9’43 U.s. c. 1712.
5

Federal Laws Affecting

Alaska Lands and Resources
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Chapter 5.--FEDERAL LAWS AFFECTING 

ALASKA LANDS AND RESOURCES

5.

FIGURE

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5

Federal Laws Affecting

Alaska Lands and Resources

ALASKA STATEHOOD ACT

On January 3, 1959, Alaska became the

49th and largest State of the Union,] some 90

years after the District of Alaska was purchased for $7 million from Russia2 and some

47 years after it became an organized territory, 3 The Alaska Statehood Act4 was approved on July 7, 1958 following more than a

decade of active congressional consideration.

This approval came only after the major objections to statehood had been overcome—

the lack of contiguity with the rest of the

States, a small population, and economic dependency on Federal Government expenditures for construction projects and military

bases.5 Congressional concern over the last of

these objections resulted in provisions endowing the State with unprecedented grants

of public lands and a generous share of

Federal revenues from mineral leases and the

Pribilof Island fur trade.6 The House report

on the Statehood Act indicates that the intent

of these provisions was:

To enable Alaska to achieve full equality

with existing States, not only in the technical

juridical sense, but in practical economic

terms as well. It does this by making the new

State master in fact of most of the natural

resources within its boundaries, and making

provisions for appropriate Federal assistance during the transition period. ’

Note: Footnotes for this section appear on pp. 112-114.

This section examines the major provisions of

the Alaska Statehood Act, its legislative intent, and the history of the implementation of

its promises.

The Alaska Statehood Act set forth the procedural requirements necessary for admission.

8 Upon satisfaction of these requirements, Alaska was admitted into the Union on

“an equal footing with all other States in all

respects whatever. ” The new State included

all of the lands and territorial waters of the

Territory of Alaska.9 Alaska was admitted to

the Union on January 3, 1959, when President

Eisenhower issued a Presidential proclamation that all the procedural requirements for

statehood had been satisfied .10

NATIVE CLAIMS

As a compact with the United States, section 4 of the Statehood Act requires that the

State and the people of Alaska disclaim any

rights to any land, the right or title to which is

held by the United States, except for those

lands granted or confirmed by the Statehood

Act.11 Alaska also disclaims any rights to any

lands or other property (including fishing

rights) that are held by Alaska Natives or by

the United States in trust for them.12 T h e

103
104 ● Analysis of Laws Governing Access Across Federal Lands

United States retains absolute jurisdiction

over these Native lands. These Native lands

are not subject to State taxation except as

provided by Congress.13 Lands that are conveyed to an Alaska Native without restraint

on alienation under the Alaska Native Allotment Act are not subject to this absolute Federal jurisdiction and may be treated substantially the same as other private lands.14

The settlement of Native claims was expressly deferred. The Statehood Act specifically provides that it does not affect or address the validity of any Native claims. “Any

such claim shall be governed by the laws of

the United States applicable thereto.”15 The

House report states that this provision relates

to the issue of Native claims:

Congress does not concern itself with the

legal merits of indigenous rights but leaves

the matter in status quo for either further

legislative action or judicial determination.16

Conflicts over Native land claims eventually

led to a virtual freeze on State selection during the sixties and threatened to impede construction of the Trans-Alaska Oil Pipeline.17

These claims were extinguished by direct

congressional action in 1971 by the Alaska

Native Claims Settlement Act18 (ANCSA).

Alaska Natives received, in exchange, the

right to select 44 million acres of public land

and a Native fund of $962.5 million to be paid

over a period of years.19 Native selection

rights were given priority over State selection

rights. However, State selections that were

tentatively patented, tentatively approved, or

identified by the State prior to January 17,

1969 are recognized and protected by

ANCSA.20

LAND AND REVENUE GRANTS

Section 6 of the Alaska Statehood Act

grants to the State of Alaska the right to
Ch. 5 Federal Laws Affecting Alaska Lands and Resources . 105

select a total of 103,550,000 acres of Federal

lands .2’ It also confirms previous grants to the

territory of Alaska and transfers certain Federal lands and buildings to the State. Extension of the Submerged Lands Act of 1953

gave Alaska title to from 35 million to 40

million acres of submerged lands under the

Territorial seas and inland navigable waters. 22 The Statehood Act also conferred on

Alaska the right to receive a generous portion

of Federal revenues from mineral leasing on

Federal lands23 as well as a share of the revenues of the Pribilof Island fur trade.24 All land

selections are to be made within 25 years of

admission, that is, by 1984.25 The Statehood

Act does not affect:

Any valid existing claim, location, or entry

under the laws of the United States, whether

for homestead, mineral, right-of-way, or

other purpose whatsoever, or shall affect the

rights of any such owner, claimant, locator,

or entryman to the full use and enjoyment of

the land so occupied.26

Any lands subject to such valid existing rights

are not available for State selection.

Section 6(a) granted the right to select up to

“400,000 acres from lands within national

forests in Alaska which are vacant and unappropriated at the time of their selection.”27

Alaska was also given the right to select an

additional 400,000 acres from “public lands

which are vacant, unappropriated, and unreserved at the time of their selection.”28 All the

lands selected under these grants must be

“adjacent to established communities or

suitable for prospective community center

and recreation areas.”29 All selections must

be approved by the Secretary of the Interior,

and national forest lands must be approved

by the Secretary of Agriculture.30

The existing national forests in Alaska are

the Tongass National Forest and the Chugach

National Forest. The Alaska Statehood Act

does not restrict State selection rights to

those national forests existing on the date of

admission. Any national forest lands i n

Alaska could be selected by the State under

the community expansion and recreation

grants of section 6(a)—subject to the approval of the Secretary of Agriculture.

Alaska was also given the right to select

102,550,000 acres of public lands that were

“vacant, unappropriated, and unreserved at

the time of their selection." 31 These selections

must also be completed within 25 years of admission. All lands available for selection are

subject to valid existing rights, including

Native claims based on aboriginal use or occupancy, mining claims, homesteads, or equitable claims .

32

The Act did not restrict the power of the

U.S. Government to dispose of Federal lands

in order to accommodate the State selection

rights. The United States is free to make additional reservations or withdrawals of Federal

lands for various purposes, or to sell or dispose of Federal lands under the public land

laws, the mineral leasing laws, and othe r

authorities. Thus, until the State actually

selects lands or communicates its intent to

select particular tracts, the lands are open to

other disposition.

The availability of public lands for State

selection is further limited by the restrictions

on State selections in an area in northern and

western Alaska where the President is authorized to make national defense withdrawals .

33 No State selections may be made in this

region without the approval of the President

or his designate. In practice, no State selections north or west of this national defense

line known as the Porcupine-Yukon-Kuskokwim line or PYK line have been rejected. 34

To date, the State of Alaska has selected

approximately 72 million acres of publi c

lands. The Federal-State Land Use Planning

Commission has observed that, based on the

emerging pattern, the State selection policy

has three principal objectives:

●

●

●

provision of lands to meet existing and

future settlement needs;

control of lands along major highway

corridors; and

selection of lands with high potential for

natural resource development.

35
106 • . Analysis of Laws Governing Access Across Federal Lands

MINERAL RIGHTS

The Alaska Statehood Act provides that all

lands granted or confirmed under the Act include the full mineral rights.36 The Act further stipulates that these land grants are

made on the condition that, in all subsequent

conveyances of selected lands, the State must

reserve all mineral rights and the right to

enter and to remove the minerals.37 The State

may never sell nor convey the mineral rights.

The Act authorizes the Federal Government

to initiate forfeiture proceedings against

State lands conveyed without such reservation.38

The State of Alaska has a system of locatable and leasable minerals similar in many

respects to the Federal mining and mineral

leasing laws.39 Locators on State lands receive the right to develop certain minerals

found there. All statehood lands are conveyed

without the mineral rights subject to the right

of the State to enter and extract the minerals.

Alaska has closed certain areas to mineral

location and leasing where mineral extraction might conflict with surface uses of the

lands. 40

As a further “incentive” to the development of Alaska’s land and resources, section

6(g) permits the State to execute conditional

leases on mineral lands after a selection has

received the tentative approval of the Secretary of the Interior.41

Photo Cred/f: OTA Staff

The Kennicott Copper Mine near McCarthy, Wrangell-St. Elias region, produced

high-grade copper concentrate from 1911 to 1938
Ch. 5 Federal Laws Affecting Alaska Lands and Resources ● 107

Under section 6(h), Alaska received the

right to select public lands that were subject

to outstanding leases under the Mineral Leasing Act of February 25, 1920, or the Alaska

Coal Leasing Act of October 20, 1914.42 This

selection right must be exercised within 10

years of admission. If the State selects all

lands under such lease, permit, or contract, it

then receives all the interests of the United

States in the leased areas including the right

to all leasing proceeds.43 If, however, the

State selects only some of such mineral lands,

the mineral rights are reserved by the United

States and do not pass to the State until termination of the lease, permit, or contract.44

The continued validity of any outstanding

lease, permit, or contract on the lands selected by the State is protected.

SUBMERGED LANDS

Section 6(m) of the Statehood Act extends

the Submerged Lands Act of 1953 to the State

of Alaska.45 Under this provision, title to

“lands beneath the navigable waters” within

the boundaries of Alaska and their natural

resources vested automatically in the State

on admission to the Union.46

The Submerged Lands Act provides that

“lands beneath navigable waters” means:47

● All lands within the boundaries of each

of the respective States which are covered

by non-tidal waters that were navigable

under the laws of the United States at the

time such State became a member of the

Union . . . up to the ordinary high water

mark . . .;

● All lands permanently 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 . . .

However, this definition is limited by a further provision:

The term “lands beneath navigable waters” does not include the beds of streams in

lands now or heretofore constituting a part

of the public lands of the United States, if

such streams were not meandered in connection with the public survey of such lands under the laws of the United States and if the

title to beds of such streams was lawfully

patented or conveyed by the United States or

any State to any person.48

The definition of “lands beneath navigable

waters” in Alaska has been the subject of

numerous disputes between the State, the

Federal Government, and, in some instances,

Alaska Natives. Title to submerged lands includes the natural resources. ”

49 The Sub -

merged Lands Act provides that: “The term

“natural resources” includes, without limiting the generality thereof, oil, gas, and all

other minerals, and fish, shrimp, oysters ,

clams, crabs, lobsters, sponges, kelp, and

other marine animal and plant life, but does

not include water power, or the use of water

for the production of power.”50

At stake in the dispute over the definition

of lands beneath navigable waters is the title

and ownership of the submerged lands and

the potential wealth to be derived from the

oil, gas, and other mineral resources.

OTHER LAND GRANTS

The Alaska Statehood Act also provided

for the transfer of certain federally owned

lands and facilities to the State. These included the Federal buildings’ and the Federal

jail in Juneau,52 certain Federal properties

used for conservation and protection of fish

and wildlife,53 and all other lands or buildings

to which the Territory of Alaska held title.54

The Act confirmed previous land grants to

the territory of Alaska of mental health,

university, and school lands.55 These land

grants include an estimated 1.1 million acres

of public lands in the State.

STATE SELECTION PROCESS

All State land selections are to be made in

accordance with regulations issued by the

Secretary of the Interior specifying the pro-
——

108 ● Analysis of Laws Governing Access Across Federal Lands

cedures for identification and approval of

selections. 56 Except for the community expansion and recreation grants made under section 6 of the Act, all selections are to be made

in reasonably compact tracts of 5,760 acres.

This size requirement may be waived where a

selected tract is isolated from other lands

open to selection.57 Tracts are not considered

compact when they exclude other lands open

to selection within their exterior boundaries. 58

The State may only select lands that are

vacant, unappropriated and, except for certain national forest lands, unreserved at the

time of selection.59 The term “lands” includes

retained interests in lands.’” The State may

thus select the mineral rights in any lands

that have been disposed of by the United

States with a reservation of all or any of the

mineral rights.

State selections must be submitted to the

Bureau of Land Management (BLM) accompanied by a small filing fee, a description of

the lands selected, and statements supporting

the availability of the land for selection.” If

the selection includes national forest lands,

the application must have the approval of the

Secretary of Agriculture.62 The BLM reviews

the State application and issues a tentative

approval if it is determined that there is no

bar to passing legal title in the lands to the

State other than the need to survey the lands

or to issue a patent.63 After the BLM has

issued a tentative approval, the State of

Alaska may make conditional sales or leases

of the lands and resources selected.64

REVENUE GRANTS

The land grants of over 104 million acres

provide Alaska with sources of revenue from

State-owned lands and land-based resources.

The Alaska Statehood Act also gave the State

a substantial share of the proceeds derived

from Federal lands and resources.

The Alaska Statehood Act repealed the

school land grants under which the territory

received two sections of each surveyed township.65 All school land grants preciously made

to the territory (about 106,000 acres) were

confirmed. 66 In lieu of these land grants, section 6(f) of the Act provides that Alaska is entitled to receive 5 percent of the proceeds

from the sale of public lands in the State.67

These revenues are to be used for the support

of public education. None of the proceeds

may be used for the support of any sectarian

institution. 68

Section 28 of the Alaska Statehood Act

amended the Mineral Leasing Act of 1920 to

provide that 521⁄2 percent of the annual net

proceeds from sales, bonuses, royalties, and

rentals of the public lands in Alaska, except

the naval petroleum reserve, are to be paid to

the State for disposition by the legislature.69

This grant of revenues was in lieu of participation in the Reclamation Fund.70 Under the

Mineral Leasing Act, Alaska as a State (and

previously as a territory), also has the right to

receive 371⁄2 percent of the mineral leasing

profits for public roads and educational purposes.

71 This statehood grant raised Alaska’s

share of Federal leasing revenues generated

from public lands in the State to 90 percent.

The Reclamation Act of 1902 provides that

521⁄2 percent of the Federal mineral leasing

revenues from 17 Western States are to be

deposited in the Reclamation Fund to be used

for reclamation and water projects.72 The remaining 10 percent of the proceeds is retained by the Federal Government.

Section 28 of the Alaska Statehood Act also

amends the Alaska Coal Leasing Act of 1914

by providing that 90 percent of the net profits

from Government coal mines and all bonuses,

royalties, and other payments under the Act

are paid to Alaska for disposition by the State

legislature. 73 Section 20 of the Act repealed

those sections of the 1914 Coal Leasing Act

that withdraw certain Federal coal lands in

Alaska, and made these lands available for

State selection. This special Alaska Coal

Leasing Act was eventually repealed so that

coal deposits on Federal lands now fall under

provisions of the Mineral Leasing Act of

1920.74
Ch. 5 Federal Laws Affecting Alaska Lands and Resources “ 109

Alaska was also given a 70-percent share

of the net profits derived from the sale of fur

seals and sea otter skins from the Pribilof

Islands in the Bering Sea.75 This fur trade is

governed by several international treaties. At

the time of the Alaska Statehood Act, the proceeds of the fur trade, after payment of all

operating costs and administrative expenses,

ranged from $1 million to $2 million per

year.

76 This grant was intended to “be of

material help to Alaska in meeting the anticipated greater costs of statehood.”77

The Statehood Act gave Alaska a stake in

mineral development both on non-Federal

and on Federal lands. Alaska received the

full mineral rights to lands conveyed under

the Statehood Act and a full 90-percent share

of net proceeds from Federal mineral leases

in the State. This right applies to profits from

deposits for coal, phosphates, sodium, potassium, oil, oil shale, native asphalt, bitumen,

bituminous rock, and gas.78 As a practical

matter, only oil, gas, and coal deposits are

presently important as revenue sources in

Alaska. The Mineral Leasing Act does not apply to metallic or industrial minerals that are

acquired by the location of mining claims. ’g

CONGRESSIONAL INTENT

The House report accompanying the Alaska Statehood Act indicates that these grants

of lands and revenues were intended to overcome two major objections to statehood: that

Alaska did not have a viable economy apart

from the Federal expenditures for construction projects and military bases, and that

Alaska could not support the costs of selfgovernment from the resources from which

revenue could be generated.80

At the time of statehood, approximately 99

percent of Alaska was in Federal ownership.

Only about 600,000 acres were privately

owned. The public land laws, although applicable to Alaska, for all practical purposes

had not operated to transfer lands to nonFederal ownership prior to statehood as they

had in other States.

A grant of this size to a new State, whether

considered in terms of total acreage or of a

percentage of the area of the State, is unprecedented. On the occasion of the admission of the existing States, land grants have

usually amounted to but 2 to 4 sections per

township, or a maximum of 6 to 11 percent of

the land area. In many instances, however,

much of the acreage had already passed into

private taxpaying ownership, or was in the

process of so passing at Federal title and

there seems to be little chance of any marked

change in this situation under existing Federal policies .81

The land and revenue grants were to provide the new State with a stable economic

base and were made in lieu of grants to new

States for internal improvements,82 

swampland grants,83 and grants provided by the

Merrill Act of 1862.84 The House report notes

that these grants were necessary to address

“Alaska’s peculiar problems.”85

Over 99 percent of the land area of Alaska

is owned by the Federal Government. The

committee believes that such a condition is

unprecedented at the time of the admission

of any of the existing States.

The public land laws of the United States,

including those providing for the disposal of

the public domain to private individuals,

theoretically are generally applicable to

Alaska. The committee, however, found that

the beneficial effects of these laws have

been and are vitiated to a large degree by the

Federal policies of the last half century, of

withdrawing from public use many of the

more valuable resources of the territory

through the creation of tremendous Federal

reservations for the furtherance of the programs of the various Federal agencies. Thus,

approximately 95 million acres—more than

one-fourth of the total area of Alaska—is

today enclosed within various types of Federal withdrawals or reservations. Much of the

remaining area of Alaska is covered by glaciers, mountains, and worthless tundra.

Thus, it appeared to the committee that this

tremendous acreage of withdrawals might

well embrace a preponderance of the more

valuable resources needed by the new State

to develop flourishing industries with which

to support itself and its people.86
110 ● Analysis of Laws Governing Access Across Federal Lands
Ch. 5 Federal Laws Affecting Alaska Lands and Resources Ž 111

To remedy what the committee report

terms “unhealthy” and “distorted” landownership patterns in Alaska, the House committee proposed land grants of 182,800,000

acres.

87 In the Alaska Statehood Act, this

figure was reduced to 102,550,000 acres of

general grants and 800,000 acres of community expansion grants.88 The committee

also proposed that these selection rights be

enhanced by several additional provisions.

If the resources of value are withheld from

the State’s right of selection, such selection

rights would be of limited value to the new

State. The committee members have, therefore, broadened the right of selection so as to

give the State at least an opportunity to

select lands containing real values instead of

millions of acres of barren tundra.89

Consequently, the State was given the right

to select lands “known or believed to be

mineral in character,”90 lands “under lease

for oil and gas or coal development or which

may even be under production for those products, "91 and a “preference right of selection

over lands returned to the public domain

from withdrawal status.”92 Withdrawals of

coal lands under the Alaska Coal Leasing Act

of 1914 were also terminated to permit the

State to select these lands.93

The committee report also observes that a

serious problem facing the new State—"and

in some respects the most serious of all’’—is

that of financing the basic functions of State

government. 94 “ Of these functions, road maintenance and road construction assume a key

importance both because of the heavy cost

and because of the crying need in Alaska for

additional roads to facilitate economic development. ’95 The report notes with approval

provisions of the Federal Aid to Highways

Act of 1956 that allows Alaska to participate

in the apportionment of funds for primary

and secondary highway systems. These provisions specify that only one-third of Alaska’s

area will be used as the area factor in the formula used for apportionment of highway

funds.96

The report states that the high percentage

of Federal ownership had “hampered the development of (such) resources for the benefit

of mankind.”97 A long list of “potential basic

industries in the territory, including the

forest industries, hydroelectric power, oil

and gas, coal, various other minerals, and the

tourist industry” could only exist in Alaska

“as tenants of the Federal Government, and

on the sufferance of the various Federal

agencies. ’ ’98 The failure of these industries to

grow under territorial government was attributed to Federal ownership of land and

resources.

99 The Alaska Statehood Act provisions were seen as necessary changes in Federal policy to assure the success of statehood.

Concretely, the grant of statehood will

mean some saving to the Federal Government

as the people of Alaska take over part of the

burden of supporting certain Government

functions now borne by the United States

Treasury.

From the standpoint of economic development, the committee believes that statehood

will permit and encourage a much more rapid growth in the economy of the territory

than would be possible under Territorial

status. Many witnesses have testified to the

committee regarding the wealth of untapped

resources in Alaska.

It is apparent from the history of the last

88 years that the extreme degree of Federal

domination of Alaskan affairs has not resulted in the maximum development of the

territory . . . the committee has included in

this bill provisions which it believes will open

up many of the resources of Alaska for the

use of mankind.100

The result of these provisions was to

transfer to the State ownership of approximately 104 million acres of onshore lands

and resources, and 35 to 40 million acres of

submerged lands and resources. Not only was

Alaska given a stake in the development of its

lands and resources, but revenue grants gave

the State an interest in the development of

resources on Federal lands as well.
112. Analysis of Laws Governing Access Across Federal Lands

FOOTNOTE REFERENCES FOR ALASKA STATEHOOD ACT

‘Proc. No. 3269, Jan, 3, 1969, 24 F.R. 81, 73 Stat. c16

(1959).

*Treaty of Mar. 30, 1867, 15 Stat. 539.

3Act of August 24, 1912, Ch, 387, 37 Stat. 512, Most

Alaskans date Alaska’s territorial status from the

Organic Act of 1884, Act of May 17, 1884, 23 Stat. 24,

which established Alaska as a public land district and

provided that the laws of the United States relating to

mining claims were to have full force and effect. The

Act of August 24, 1912 extended the laws and Constitution of the United States to Alaska and created a territorial legislature. Acts of the legislature were subject

to review by the U.S. Congress.

4Act of July 7, 1958, Public Law 85-508, 72 Stat. 339,

48 U.S.C, Prec, s 21 (1970). For an anecdotal history of

the campaign for Alaska Statehood, see Clause-M.

Naske, An Interpretative History of AJaskan Statehood

(1973), Ernest Gruening, The Battle for Alask a

Statehood (1967).

‘See H. Rept. 624, 85th Cong,, 2d sess. (1957), reprinted in 1958 U.S. Code Cong, & Ad. News. 2933 at

2944. (No Senate report was submitted with this legislation, ) In 1954, nearly one-half of Alaska’s labor force

was employed by the military. In 1960, over one-half of

State labor force was federally employed (including

military), University of Wisconsin School of Natural Resources, Center for Resource Policy Studies and Programs, Federal Land Laws and Policies in Alaska, Vo~.

IV: A Summary of Issues and Alternatives, pp. 4-5

(1970). (This multivolume study was prepared for the

Public Land Law Review Commission.)

8H. Rept. 624, 1958 U.S. Code Cong. & Ad News

2933-35.

71d,, at 2933-34,

‘public Law 85-508 requires a republican form of

State government, the acceptance and ratification of

the State Constitution by the U.S. Congress, the approval of Statehood and the new constitution by Alaska

citizens by referendum, a presidential proclamation

that the foregoing steps have been completed, and the

election of two senators and one at-large representative to Congress.

‘Public Law 85-508, section 2, 72 Stat. 339 (1958).

‘OProc, 3269,24 F.R. 81, 73 Stat, c16 (1959).

“public Law 85-508, section 4, 72 Stat. 339, as

amended by the Act of June 25, 1959 (The Alaska Omnibus Act), Public Law 86-70, section 2(a), 73 Stat. 141,

codified at 48 U.S.C. Prec. $21 (1970).

[zId.

]jId.

lqAct of May 17, lg06, 34 Stat. 197, as amended by

the Act of August 2, 1956, 70 Stat. 954, previously

codified at 43 U.S.C. 270-1 to 270-3, repealed by Public

Law 92-203, section 18(a), 85 Stat. 710 (1971).

‘sPublic Law 85-508, section 4, 72 Stat. 339.

18H, Rept, GM, 1958 U.S. Code Cong. & Ad. News at

2934.

1

7 See Public Land Order 4582, 34 F.R. 1025, Jan. 17,

1969. See also Mary Clay Berry, The Alaska Pipeline:

The Politics of Oil and Native Land Claims [ 1975).

‘aAct of December 18, 1971, Public Law 92-203, 85

Stat, 688,43 U.S,C. 1601, (supplement IV, 1974).

~QSee 43 U.S.C. 1605, 1608, 1611, 1613, 1615, and

1618.

Z“Section 3(e) of ANCSA, 43 U.S. C, 1602(e) defines

“public lands” as “all Federal lands and interests

therein located in Alaska except: . . . land selections of

the State of Alaska which have been patented or tentatively approved under section 6(g) of the Alaska

Statehood Act, as amended (72 Stat. 341, 77 Stat. 223),

or identified for selection by the State prior to Jan, 17,

1969. ” By definition, State selections are generally

unavailable for Native selection under ANCSA; however, certain unpatented State selections, in or near

Native villages are made available for Native selection

by sections n(a)(2) and 12 of ANCSA, 43 U.S.C.

1610(aX2) and 1611.

“public Law 85-508, section 6,72 Stat. 340 (1958).

2zId,

zs~blic Law 85-508, section 28, 72 Stat, 351 (1958).

24Public Law 85-508, section 6(c), 72 Stat. 340 (1958).

25Public Law 85-508, section 6, 72 Stat. 340 (1958).

2Wublic Law 85-508, section 6(a), 72 Stat. 340 (1958).

In Alaska v. LJdalJ, 420 F, 2d 938 (9th Cir, 1969), the

State of Alaska challenged the Udall land freeze. The

Court of Appeals for the Ninth Circuit ruled that lands

claimed by Alaska Natives were not, as a matter of

Law, “vacant, unappropriated, and unreserved, ” and

thus open to statehood selection. An identical provision

is contained in section 6(b), 72 Stat. 340 (1958).

27Public Law 85-508, section 6(a), 72 Stat. 340.

281d.

‘gId,

3oId.

3

1 Public Law 85-508, section 6[b), 72 Stat. 340 (1958).

32Public Law 85-508, sections 4, 6(b), and 6(g), 72

Stat. 339 to 342 (1958).

ss~blic Law 85-508, section IO(a), 72 Stat. 345

(1958).

Squniversity of Wisconsin, School of Natural Resources, Center for Resource Policy Studies and Programs, A Study of Federal Land Law and Policies in

Alaska, Vol. 1, at 141 to 143 (1970).

jsFederal State Land Use Planning Commission for

Alaska, “The D-2 Book”: Lands of National Interest in

Alaska, 9 to 11 (1977).

se~blic Law 85-508, section 6(i), 72 Stat. 342 (1958).

371d.

381d.

39Alas.stat. 38.05.185 to 38,05.280. See Herbert,

Alaska Mining Law Manual, (1970], published by the

Mineral Industry Research Laboratory of the University of Alaska. The leasable minerals under Alaska law

are oil, gas, ccal, sulfur, oil shale, bitumen, phosphate,
Ch. 5 Federal Laws Affecting Alaska Lands and Resources . 113

sodium, and potassium. Locatable minerals include

metals, ores of metals, as well as nonmetallic minerals

which have special values such as asbestos, limestone,

building stone, magnesite, silica, and the like. Herbert,

at 1.

‘See, for example, 11 Alaska Administrative Code

86.135(b).

4’Public Law 85-508, section 6(g), 72 Stat. 341 (1958).

‘2Public Law 85-508, section 6(h), 72 Stat. 342 (1958),

as amended by Public Law 88-289, 78 Stat, 168 (1964).

The Mineral Leasing Act of 1920 is codified at 30 U.S.C.

181 et seq. The Alaska Coal Lands Leasing Act of 1914,

c.330, 38 Stat, 741, formerly codified at 48 U.S.C. 432 et

seq., was repealed by the Act of September 9, 1959,

Public Law 86-252, 73 Stat. 490.

43Public Law 85-508, section 6(h), 72 Stat. 342 (1958),

as amended by Public Law 88-289, 78 Stat. 168 (1964).

“Id. See also, 43 CFR 2627.3(b)(4).

45Public Law 85-508, section 6(m), 72 Stat. 343 (1958).

The Submerged Lands Act of May 22, 1953, ch. 65, title

1, section 2, 67 Stat. 29, is codified at 43 U,S.C. 1301 et

seq. (1970).

’543 U.S.C. 1311(a) (1970).

4743 LJ, S.C. 1301(a) [1970).

4

’43 U.s.c. 1301(f) (1970).

4g43 U.S.C. 1311(a) (1970).

5043 U,S.C. 1301(e) (1970).

5’Public Law 85-508, section 6(c), 72 Stat. 340 (1958).

52Public Law 85-508, section 6(d), 72 Stat. 340 (1958).

‘J~blic Law 85-508, section 6[e), 72 Stat. 340 (1958).

54Public Law 85-508, section 5,72 Stat. 340 (1958).

55Public Law 85-508, section 6(k), 72 Stat. 343 (1958).

55Public Law 85-508, section 6(g), 72 Stat. 341 (1958).

These regulations are found at 43 CFR 2627.

sTId.

5843 CFR 2627.3(c)(3),

5gPublic Law 85-508, section 6, 72 Stat. 340 (1958).

‘Public Law 85-508, sections 6(a) and 6(b), 72 Stat.

340 (1958), as amended by the Act of September 14,

1960, Public Law 86-786, 74 Stat. 1024. See also 43 CFR

2627.3(a)(l).

6143 CFR 2627.3(c).

6243 CFR 2627, l(b).

8343 CFR 2627.3(b).

“Public Law 85-508, section 6(g), 72 Stat. 341, (1958)

and 43 CFR 2627.

‘

s

Public Law 85-508, section 6(k), 72 Stat. 343 (1958).

The school land grants were authorized under section I

of the Act of March 4, 1915, 38 Stat. 1214, 48 U.S.C.

353, as amended.

‘cPublic Law 85-508, section 6(k), 72 Stat. 343 (1958).

‘7Public Law 85-508, section 6(f), 72 Stat. 341 (1958).

“public Law 85-508, section 6(j), 72 Stat. 342 (1.958).

Cgpublic Law 85-508, section 28(b), 72 Stat. 351

(1958). The revenue provisions of the Mineral Leasing

Act of 1920 are codified at 30 U.S.C. 191.

7

0H. Rept. 624, 1958 U.S. Code Cong. & Ad. News, at

2940, 2956.

7130 U.S. C, 191. Prior to its amendment in 1976, section 28 provided that: “all monies received from sales,

bonuses, royalties, and rentals of public lands under

the provisions of this chapter shall be paid into the

Treasury of the United States; 37VZ per centum thereof

shall be paid by the Secretary of the Treasury as soon

as practicable after December 31 and June 30 of each

year to the State within the boundaries of which the

leased lands or deposits are or were located; . . .“

In 1976, section 28 was amended by Public Law

94-273, section 6(2), 90 Stat. 377 (Apr. 21, 1976); Public

Law 94-377, section 9, 90 Stat. 1090 (Aug. 4, 1976);

Public Law 94-422, Title III, section 301, 90 Stat. 1323

(Sept. 28, 1976); and Public Law 94-579, Title HI, section 317(a), 90 Stat. 2770 (Oct. 21, 1976).

As amended, section 28 now provides, simply, that

90 per centum of leasing revenues be paid to the State

of Alaska. 30 U. S.C.A. 191 (1978 supp.).

7243 U.S.C. 391, Act of June 17, 1902, c. 1093, section

1, 32 Stat. 388, codified at 43 U.S.C. 391, as amended.

Monies deposited to the Reclamation Fund are to be

used for the reclamation of arid and semiarid lands and

for certain other specified purposes. Public Law 94-377

reduced the amount of leasing revenues to be paid into

the Reclamation Fund from 52 to 40 percent. Public

Law 94-377, section 9, 90 Stat. 1090 (Aug. 4, 1976), 43

U. S.C.A, 191 (1978 SUpp).

73Public Law 85-508, section 28(a), 72 Stat. 351

(1958).

74The Alaska Coal Leasing Act, formerly 48 U,S,C,

432, was repealed by the Act of September 9, 1959,

Public Law 86-252, section 1,73 Stat. 490.

Leasing of Federal coal deposits in Alaska is now

governed by the Mineral Leasing Act of 1920, codified

at 30 U.S. C. 201 et seq.

75Public Law 85-508, section 6(e), 72 Stat. 340 (1958)

as amended by the Fur Seal Act of 1966, Public Law

89-702, Title IV, section 408(b), 80 Stat. 1098. The Administration of the Pribilof Island fur trade by the U.S.

Government was a scandal for many years. As late as

195o, Natives were paid only in food commodities and

received a yearly bonus never higher than $5OO for the

best hunters. The Native families lived in isolation in a

restricted area. No one could visit the islands without a

permit from the Government. It was not until 1966, that

the last vestiges of what had been called “virtual

slavery” were lifted. See Cooper, Alaska—The Last

Frontier, 191 (1973]. See also 16 U.S.C. 1151 et seq.,

especially 46 U.S. C. 1168 which provides civil service

retirement benefits for Natives engaged in the fur trade

and their survivors.

7eH. Rept. 624, 1958 U.S. Code Cong. & Ad. News

2940.

“Id.

7aSee the Mineral Leasing Act of 1920, as amended,

30 U,S.C. 181 et. seq.

Tgsee the Genera] Mining Law of 1872, as amended,

codified at 30 U.S. C, 21-54, 161, 162, 541-541 ii, and

621-625 (1970).

‘H. Rept. 624, 1958 U.S. Code Cong. & Ad. News at

2944 to 2947.

8’Id, at 2931,
114. Analysis of Laws Governing Access Across Federal Lands

sz~blic Law 85-508, section 6(l), 72 Stat. 343 (1958).

See Act of September 4, 1841, section 8, 5 Stat. 455,

Revised Stat, sections 2378,2379,43 U.S.C. 857.

Sssee Act of September 25, 1850, 9 Stat. 520, Revised

Stat. 2479,43 U.S.C. 857.

s4The Act of July 2, 1862, 12 Stat. 503, 7 U.S.C. 301 to

308, grants new States 30,000 acres of public lands for

each Senator and Representative.

E5H. Rept. GM, 1958 U.S. Code Cong. & Ad. News

2937.

~Id. at 2937 to 2938.

‘71d. at 2938.

‘Public Law 85-508, section 6, 76 Stat. 340 (1958).

139H. Rept, 624, 1958 U.S. Code Cong. 1$ Ad. News at

2939.

‘See Public Law 85-508, section 6 (i), 72 Stat. 342

(1958).

glId. See also, section 6(b), 72 Stat. 340 (1958).

gzfiblic Law 85-508, section 6(g), 72 Stat. 341 (1958).

gs~blic Law 85-508, section 20, 72 Stat. 351 (1958).

“H, Rept. 624, 1958 U.S. Code Cong. & Ad. News at

2938.

9sIdo

‘eId. See 23 U.S.C, 101 et seq.

‘7H, Rept. 624, 1958 U.S. Code Cong. & Ad, News at

2939.

981d0

wQIdo

‘wId. at 2941.
Ch. 5 Federal Laws Affecting Alaska Lands and Resources “ 115

ALASKA NATIVE CLAIMS SETTLEMENT ACT

The Alaska Native Claims Settlement Act

(ANCSA)l extinguished all Native claims to

lands and hunting and fishing rights based

upon aboriginal title or use.2 In compensation,

ANCSA gave Alaskan Indians, Aleuts, and

Eskimos $962.5 million and the right to select

44 million acres of Federal lands in the State.3

Native Regional and Village Corporations

were established to administer land selections and fund distributions.4 Conflicts over

the Native land claims had slowed State land

selections under the Alaska Statehood Act

and threatened to impede construction of the

Trans-Alaska Oil Pipeline. ANCSA removed a

major obstacle to the pipeline and paved the

way for conveyances to the State and Native

groups that will shift approximately 40 percent of Alaska’s land to non-Federal ownership.

ANCSA also addressed the future management of the remaining Federal lands in the

State. Section 17(d)(2) directed the Secretary

of the Interior to withdraw up to 80 million

acres of land that he deemed suitable for

potential inclusion in the National Park,

Forest, Wildlife Refuge, and Wild and Scenic

Rivers Systems.5 The Secretary was to study

these lands and make recommendations to

Congress. To protect the national interest in

these lands, commonly called “d-2” lands,

prior to congressional action, they were withdrawn from all forms of appropriation under

the public land laws, the mining and mineral

leasing laws, and from selection by the State

or Native Regional Corporations.6 Statutory

authority for these withdrawals expired in

December 1978.7

Many proposals for Alaska National Interest Lands have been introduced in Congress in addition to the original “d-2” recommendations made by Secretary Morton in

December 1973.8 During the 95th Congress,

extensive hearings on Alaska Lands were

held before House and Senate Committees in

Washington, D. C., Alaska, and other locations across the country. On May 19, 1978,

Note: Footnotes for this section appear on pp. 125-128.

after 3 days of debate, the House of Representatives passed H.R. 39 which would designate over 100 million acres as national

parks, forests, wildlife refuges, wild and

scenic rivers, and wilderness areas.9 In October 1978, the Senate adjourned without acting on Alaska Lands. Alaska National Interest Lands legislation will be reintroduced in

the 96th Congress.

HISTORICAL OVERVIEW

Once, Alaska Indians, Aleuts, and Eskimos

had dominion over all of Alaska’s 375 million

acres. Alaska’s harsh climate and isolation

combined with Government policies to protect

the Natives in the use and enjoyment of

Alaska’s lands, waters, and wildlife. When

the United States purchased Alaska from

Russia in 1867, the treaty provided: “The uncivilized tribes in Alaska will be subject to

such laws and regulations as the United

States may from time to time adopt in regard

to the aboriginal tribes of that country.” 10

However, from 1867 to 1900, the United

States paid scant attention to the Natives in

Alaska. The Organic Act of 1884, which established Alaska as a public land district,

acknowledged the existence of aboriginal

claims but reserved any settlement of these

claims for a future time:

. . . the Indians or other persons in said district shall not be disturbed in the possession

of any lands actually in their use or occupation or now claimed by them, but the terms

under which such persons may acquire the

title to such lands is reserved for future legislation by Congress.”

By 1900 the United States began to take

notice of Alaska and its Natives. By this time,

the era of negotiating Indian treaties had

ended. The circumstances that dictated the

establishment of Indian reservations in the

lower 48 had not existed in Alaska. Alaska

Native groups were never officially recog-
116 ● Analysis of Laws Governing Access Across Federal Lands

nized as tribes. The issue of indigenous rights

was consistently sidestepped by the Federal

Government. As a 1968 report of the Federal

Field Committee for Development Planning in

Alaska observed, the Alaska Natives were

left in an “anomolous position:”

They were omitted from the General Allotment Act, which was a method of attaining

citizenship for American aborigines. They

were omitted from the Homestead Act as being neither citizen nor alien capable of attaining citizenship. They were forbidden by

Congress to enter into treaties with the

United States for the cession of some lands

and the retention of others. Physically they

comprised the major part of Alaska’s population. Officially they were invisible. The mood

of the land was to procrastinate about

Alaska which was far away and would never

be a State or have a white resident population to contest national decisions.12

It was not until passage of the Alaska

Statehood Act in 1958 that Alaska Natives

began to be threatened in their use of the

lands and subsistence resources.13 The Statehood Act did not settle the issue of aboriginal

land claims, but left it for future legislative or

judicial action.14 The Federal Field Committee

report summed up the position of Alaska

Natives at statehood:

The time for filing claims before the Indian

Claims Commission had passed. Claims must

have arisen prior to August 13, 1946, and

have been filed within 5 years to be heard.

The aboriginal title of the Natives of Alaska

had received no formal recognition, except

that granted in the jurisdictional act for the

Tlingit-Haidas in 1935. Again the need in

Alaska was arising when there were no laws

on the books to provide a remedy. Now many

areas of Alaska were feeling the encroachment of the white man. The grants were no

longer a string of townsites, a scattering of

homesteads, a few hundred mining claims—

they were in the millions of acres, and, more

importantly, over all of the resources upon

which the Native peoples depended for their

livelihood. Anglo-Saxon land ownership was

foreign to Alaska Natives. They might claim

and use the land on which their homes, fish

camps, and landing sites were situated, with

the same protectiveness of any other landowner; but the fruit of the land was more important than the land itself. Important were

the fish, fur-bearing animals, caribou, and

moose—and, even more important than land

animals for Coastal Eskimos—the fruits of

the sea.15

By 1959, when the State was given its selection rights to about 104 million acres of

public lands, over 92 million of the 375 million

acres in Alaska had been withdrawn for public purposes. These Federal withdrawals included: the Tongass and Chugach National

Forests; Mt. McKinley National Park and

Glacier Bay, Katmai, and Sitka National

Monuments; the Kenai National Moose Range

and a number of small wildlife refuges; Naval

Petroleum Reserve No. 4; and several major

defense installations. Eighty percent of the

Federal lands in Alaska were under the

jurisdiction of the Bureau of Land Management (BLM). These lands were, and are, the

major part of the Nation’s public domain.

Since statehood, the unreserved public domain in Alaska has been further reduced by

the creation, in 1960, of the 9-million-acre

Arctic National Wildlife Range.

As Alaska began to make land selections,

Native groups began to protest. Beginning in

late 1961, the Bureau of Indian Affairs filed

protests on behalf of some Native villages,

totaling approximately 5,860,000 acres and

conflicting with 1,750,000 acres of State

selections. The filing of individual or village

protests continued through 1966. By fall of

1966 the rate of filings accelerated. By April

1, 1968, there were 40 recorded protests

covering 296,600,000 acres.16

In 1966 because of these conflicting land

claims, Secretary of the Interior Stewart

Udall imposed an informal freeze on all

Alaska public lands. This freeze halted any

further Federal withdrawals, State selections, and appropriations under the public

land laws. In January 1969, this freeze was

formalized by Public Land Order 4582, which

withdrew all unreserved Federal lands in

Alaska pending congressional consideration

of legislation on Alaska Native land claims. 17

With discovery of oil at Prudhoe Bay, pres-
Ch. 5 Federal Laws Affecting Alaska Lands and Resources ● 117

sure for resolution of the Native claims increased. Because of the land freeze, the Secretary could not grant a permit for construction of a pipeline to transport oil from the

North Slope. Finally, on December 18, 1971,

the Alaska Native Claims Settlement Act was

signed into law.

SETTLEMENT OF NATIVE CLAIMS

ANCSA was passed in congressional recognition of “an immediate need for a fair and

just settlement of all claims by Natives and

Native groups of Alaska, based upon aboriginal land claims.”18 ANCSA is more than a

public land law. In section 2(b) of ANCSA,

Congress declares, in part, that “the settlement should be accomplished rapidly, with

certainty, in conformity with the real

economic and social needs of Natives, without litigation, (and) with maximum participation by Natives in decisions affecting their

rights and property.”19 ANCSA extinguished

all Native claims of aboriginal title to lands in

Alaska and, in exchange gave Alaska Indians, Aleuts, and Eskimos an Alaska Native

Fund of $962.5 million and the right to select

44 million acres of Federal lands.

Section 4 of ANCSA provides that any and

all aboriginal titles and claims of aboriginal

title to lands in Alaska are extinguished.20 All

conveyances of public lands and waters including tentative approvals of land selections

under the Alaska Statehood Act are to be

regarded as extinguishing any aboriginal title

to the lands involved.21 All Native claims of

aboriginal title in Alaska based on indigenous

use or occupancy of lands, including submerged lands, and any aboriginal hunting

and fishing rights were extinguished.22 All

claims against the United States, the State of

Alaska, and any persons that were based on

aboriginal title or use or on the laws of the

United States or other Nations were also extinguished. 23

Native Enrollment

Section 5 of the Act requires that all

Alaska Natives must enroll in 1 of 13 Native

regions established by section 7 in order to be

eligible for participation in the settlement.24

(See figure 5.) The original period of enrollment ended on March 30, 1973; however,

ANCSA was amended in 1976 to allow additional Native enrollments.25 About 70,000

eligible Natives were registered during the

first enrollment period.26 An Alaska Native,

as defined in section 3(b) of ANCSA, is:

A citizen of the United States who is a person of one-fourth degree or more Alaska Indian (including Tsimshian Indians not enrolled in the Metlakatla Indian Community),

Eskimo, or Aleut blood, or combination thereof. The term includes any Native as so defined either or both of whose adoptive

parents are not Natives. It also includes, in

the absence of proof of a minimum blood

quantum, any citizen of the United States

who is regarded as an Alaska Native by the

Native village or Native group of which he

claims to be a member and whose father or

mother is (or, if deceased, was) regarded as

Native by any village or group, Any decision

of the Secretary regarding eligibility for

enrollment shall be final.27

Natives residing in Alaska are also enrolled in a Native village.28 Natives who live

outside of Alaska and who choose not to

enroll in their ancestral regions may join a

13th region.29 The 13th

villages.

Native Corporations

ANCSA requires the

Alaska corporation law

region cent-ains no

organization under

of a profit-making

Native Regional Corporation for each region. 30 The Act further requires the organization of a Village Corporation for each village. 31 These corporations administer land

selections and cash distributions from the

Alaska Native Fund.32 As profit-making business entities, Native Regional Corporations

manage other business enterprises and investments. 33 Individual Natives are shareholders in the Native Regional and Village

Corporations of their enrollment.

The stock in Native Corporations may not

be transferred by a living shareholder before

4( I- 8,14 ( ) - T, . r,
118 ● Analysis of Laws Governing Access Across Federal Lands

-i
Ch. 5 Federal Laws Affecting Alaska Lands and Resources . 119

December 18, 1991, except under a court decree of separation, divorce, or child support.34

When a Native shareholder dies, however,

the stock passes as other personal property

and may be inherited by a non-Native.35

Alaska Native Fund

The Settlement Act provides that Alaska

Natives are to receive $962,500,000. Of this

amount, $462,500,000 is to be appropriated

by the Congress over a period of 11 years.36

The remaining $500 million will be derived

from a 2-percent royalty on Mineral Leasing

Act revenues produced from State and Federal lands.37 The Native royalty is subtracted

from Federal lease revenues before deducting Alaska’s statehood share of 90 percent of

the profits.38 Royalty payments will cease

when $500 million have been paid.39 These

monies are to be deposited to the Alaska

Native Fund in the U.S. Treasury .40

The monetary settlement provided by the

Act is to be distributed quarterly to the

Regional Corporations in proportion to the

numbers of their shareholders.41 Each Regional Corporation, in. turn, is required to

redistribute one-half of its receipts from the

Native Fund to each Village Corporation for

its members and pro rata to Native shareholders who are not members of Village Corporations. 42

The 12 Regional Corporations that are

eligible to receive lands under the Act are required to share the revenues derived from the

timber and mineral resources on selected

lands. 43 Each of the 12 landholding Regional

Corporations must divide 70 percent of the

revenues from its timber and mineral resources with the other 11 Regional Corporations, This division of revenues is proportional to the number of shareholders. As in

the case of the monetary compensation provided by the Act, each Regional Corporation

is required to redistribute one-half of the

revenues it so receives among its shareholders and Village Corporations.44 The 13th

Regional Corporation, which is composed of

nonresident Natives, is ineligible to receive

land and thus does not share in the interregional revenue sharing.45

Land Selections

Under various provisions of ANCSA, Alaska Natives will receive title to approximately

44.8 million acres of public lands in Alaska.46

Of these lands, the surface estate to about 22

million acres is to be conveyed to about 200

Native Village Corporations organized under

the Act.47 The subsurface estate to these 22

million acres and fee simple title to some 18

million acres is to be divided among the 12

resident Native Regional Corporations.48 [The

term “subsurface estate” is roughly equivalent to “mineral rights.”) Although Regional

Corporations hold the subsurface rights, mineral exploration can occur within the boundaries of any Native village only with the consent of the Village Corporation. 49

The Village Corporation selections were

to be chosen by December 18, 1974, from

lands in and around existing Villages .

50 T h e

village land entitlements outside of southeast

Alaska are made on the basis of population. 51

The 11 Regional Corporations outside southeast Alaska were to select the lands to which

they are entitled by December 18, 1975. 52 R e -

gional Corporation entitlements are made

under a complex formula. 53

The Secretary of the Interior was directed

to issue patents “immediately” after the

Native Corporations have made their selec -

tions .

54 Conveyances of Native selections have

been delayed by administrative problems, by

disagreement between Native Corporations

and the Department of the interior, and by

litigation.

55

Withdrawals for Native Selections

Subsection Ii(a) of ANCSA withdrew the

25 townships surrounding any Native village

outside southeastern Alaska from all forms of

appropriation under the public land laws, including the mining and mineral leasing laws,

and from selection by the State.

56 Similarly ,

subsection 16(a) of ANCSA withdrew the nine
120 w Analysis of Laws Governing Access Across Federal Lands

townships surrounding certain Native villages in southeastern Alaska.57 These withdrawals were made to form a pool of land

from which Native selections could be made.58

The withdrawals included some lands already selected by or tentatively approved to,

but not yet patented to, the State under the

Alaska Statehood Act.59 National parks, national monuments, and land withdrawn for

military purposes (other than Naval Petroleum Reserve No. 4) were excluded from

these withdrawals. The Secretary of the Interior was directed to withdraw additional

“deficiency” land from the nearest unreserved, vacant, and unappropriated public

lands if the statutory withdrawals were not

sufficient to satisfy Native selection rights.60

Approximately 108 million acres were

withdrawn for Native selection purposes by

subsections Ii(a) and 16(a).61 Section 16 authorizes Native village selections of 230,400

acres in southeastern Alaska from lands

withdrawn under that section.62 Section 12

authorizes selection by Native Village Corporations outside southeastern Alaska of 22

million acres from the land withdrawn by

subsection 11(a).63 Section 12 further authorizes selection by Native Regional Corporations of an additional 16 million acres, less

the amount of land selected by the Native Village Corporations in southeastern Alaska,

from the land withdrawn by subsection n(a),

excepting land selected by the State prior to

ANCSA’s enactment.64

A limited amount of the 26 million acres

selected by the State prior to ANCSA’s enactment was made available for Native selection under sections n(a)(2) and 12(a)(l) of

ANCSA. 65 It is estimated that 2.6 million of

these acres will pass into Native ownership.

Subsection 14(h) authorizes the Secretary

to withdraw an additional 2 million acres of

unreserved and unappropriated public land

located outside the areas withdrawn by subsections 1 l(a) and 16(a) and to convey such

land for certain specified purposes with the

balance remaining to be shared by all 12 resident Native Corporations on the basis of population. 66

Approximately 4.8 million additional acres

will pass to the Natives as a result of two

open-ended provisions in ANCSA. Section 18

provides for approval of Native allotment applications under prior statutes pending at the

time ANCSA was adopted.67 All allotments so

approved count against the 2 million acres to

be conveyed to the Natives under subsection

14(h), but only if approved prior to December

18, 1975.68 Of an initial 1.2 million acres encompassed by pending allotment claims, it is

estimated that 200,000 acres are covered by

invalid claims. Another 200,000 acres represent claims approved prior to December 18,

1975. This leaves 800,000 acres to be conveyed that will not count against the 2 million

allowed under subsection 14(h).69

Section 19(b) provides an option to those

Village Corporations located on former “Indian Reserves” to take fee title to the “Reserve” and forego other benefits of ANCSA or

to take the benefits of ANCSA.70 Six such corporations elected to take title to four former

reserves. These reserves are: St. Lawrence

Island (1.2 million acres); Elim (0.3 million

acres); Venetie (1.4 to 1.7 million acres); and

Tetlin (0.75 million acres). This acreage,

about 4 million, is in addition to the 40 million

acres covered by sections 12, 14, and 16.71

All together, these provisions authorize

selection of approximately 44.8 million acres

by various Native groups in Alaska from

around 110 million acres of withdrawals.

As permitted by the Department of the Interior’s regulations, the Natives greatly overselected in order to protect themselves from

loss of expected acreage due to preexisting

rights or subsequent land surveys.72 Around

80 million acres were so selected. Pursuant to

subsection 22(h) of ANCSA, all withdrawals

made for Native selection purposes terminated on December 18, 1975, except for land

actually selected by, but not yet conveyed to,

the Natives.73 Approximately 30 million acres

of unselected public lands remained. These

lands are covered by the withdrawals

authorized by section 17(d)(l) of ANCSA.74

The Regional Corporations have emphasized mineral potential in making their land
Ch. 5 Federal Laws Affecting Alaska Lands and Resources ● 121

selections. In fact, several of them have obtained extensive mineral surveys of land

available to them for selection. These surveys

were usually performed in return for certain

development rights in the land eventually

selected .75

Generally, the 44.8 million acres of Native

land will be available for mineral exploration

and development. The Regional Corporations

will control the minerals on 40 million acres.

Some of the Regional Corporations will likely

favor development. Other Native groups will

control the minerals in the 4.8 million acres

conveyed under sections 18 and 19, and,

since these acres will probably encompass

culturally significant areas, these groups may

be somewhat less favorable to mineral activit y.

ALASKA NATIONAL

INTEREST LANDS

Section 17(d)(2) of ANCSA authorized the

Secretary to withdraw up to 80 million acres

of unreserved public lands to be studied for

possible addition to the National Park, Forest,

Wildlife Refuge, and Wild and Scenic Rivers

Systems.” The Act required the lands to be

withdrawn from all forms of appropriation

under the public land laws, including the mining and mineral leasing laws, from State

selection under the Alaska Statehood Act,

and from selection by Native Regional Corporations under ANCSA.77 Native Regional

and Village Corporation selections, however,

were allowed where the “d-2” withdrawals

overlapped the statutory subsection 11(a)

withdrawals for Native selection purposes.78

The Secretary withdrew the full 80 million

acres.” Section 17(d)(2) also required that the

Secretary submit his recommendations concerning those lands to Congress by December

18, 1973.80

On December 17, 1973, Secretary Morton

recommended that 83.5 million acres be

added to the four conservation systems in

Alaska.81 Approximately 65 million of these

83.5 million acres were lands previously

withdrawn pursuant to section 17(d)(2).

These section 17(d)(2) withdrawals remain in

effect until Congress acts on the recommendations or until December 18, 1978, whichever is earlier.82 The section 17(d)(2) withdrawal terminated on December 18, 1973, for

the 15 million acres not recommended. The

other 18.5 million acres recommended for inclusion are lands that were withdrawn pursuant to subsection 17(d)(l).83

The 80-million-acre limitation in withdrawal authority of section 17(d)(2) does not

impose any limitation either on the total number of acres that may eventually be included

in Alaskan conservation systems or on the

number of acres that the Secretary may withdraw under other authority for congressional

consideration or classification. Similarly, the

80-million-acre limitation on the withdrawal

authority of section 17(d)(2) does not impose

any restriction on congressional designations

of Alaska National Interest Lands.

ALASKA PUBLIC INTEREST LANDS

Section 17(d)(l) of ANCSA directs the Secretary of the Interior to “review the public

lands of Alaska and determine whether any

portion of these lands should be withdrawn

under authority provided for in existing law

to insure that the public interest in these

lands is properly protected.”84 The section

authorizes him “to classify or reclassify any

lands so withdrawn and to open such lands to

appropriation under the public land laws in

accord with his classifications.”85 Withdrawals pursuant to subsection 17(d)(l) do not affect State and Native selection rights in those

areas withdrawn for Native selection pursuant to section 11.86 The section 11 withdrawals, however, precluded State selection

in such areas, at least until the section 11

withdrawals terminated in December 1975.87

During 1972, the Secretary withdrew

almost all public lands in Alaska that were

not already reserved from State and Native

selections. 88 Most of these so-called “d-l”

withdrawals simply backed up other with-
122 ● Analysis of Laws Governing Access Across Federal Lands

drawals, such as the statutory withdrawal

for Native selection purposes. Thus, any

areas not selected by the Natives or recommended for inclusion in the four conservation

systems remain withdrawn under subsection

17(d)(l) despite the termination of the more

specific withdrawals. There is no time limit

on the section 17(d)(1) withdrawals, which

will probably be maintained until the land is

classified or disposed of.

Certain areas were left open to State selection only.89 Others were left open to location

for metalliferous minerals as well as State

selection. Fifteen million acres were made

available for entry under the public land

laws, with a 90-day preference to the State to

select areas it desired. However, the available acreage was generally in areas not

suited for habitation or productive development, and attempted settlement led to hardship, death, and abandoned entries. In 1974

the 12.4 million acres of remaining unselected and unentered public lands were

closed until they could be classified.90

The State will eventually seek to complete

its statehood selections from these d-l lands.

Public lands withdrawn for possible Native

selection under ANCSA and lands withdrawn

under section 17(d)(2) as national interest

lands that are not included in national conservation systems will revert to a public land

d-l status because of overlapping d-l withdrawals.

Section 603 of the Federal Land Policy and

Management Act of 1976 requires that all

public lands managed by the BLM must be inventoried and studied for their wilderness

potential by 1991.9l Under this provision,

some of the remaining public lands in Alaska

may be added to the National Wilderness

Preservation System. Wilderness review of

Alaska’s public lands will be deferred until

after completion of Native land conveyances

and congressional consideration of national

interest land proposals called for in section

17(d)(2).92

JOINT FEDERAL-STATE

LAND USE PLANNING

COMMISSION FOR ALASKA

Section 17(a) of ANCSA established the

Joint Federal-State Land Use Planning Commission for Alaska.93 This Planning Commission is composed of 10 members—5 members

representing the State of Alaska and 5 members representing the United States. The

Alaska members include the Governor or his

designate and four other persons appointed

by the Governor.94 At least one of these State

appointees must be a Native as defined in the

Act.

95 The five members representing the

Federal Government include one member appointed by the President with the advice and

consent of the Senate and four members appointed by the Secretary of the Interior.96 The

Governor (or his designate] and the Presidential appointee serve as cochairmen of the

Commission. 97 All decisions of the Commission

require concurrence by the cochairmen.98 All

members serve at the pleasure of the appointing authority.99

The Planning Commission has no regulatory or enforcement responsibilities, but has

important advisory functions. *W The Commission was to expire on December 31, 1976.

However, Public Law 94-204, approved January 2, 1977, provides that the Commission

will continue in existence until May 30,

1979. 101

ANCSA provides that the Planning Commission shall:

(A) undertake a process of land use planning, including identification of and the making of recommendations concerning areas

planned and best suited for permanent reservation in Federal ownership as parks, game

refuges, and other public uses, areas of

Federal and State lands to be made available

for disposal, and uses to be made of lands remaining in Federal and State ownership;

(B) make recommendations with respect to

proposed land selections by the State under

the Alaska Statehood Act and by Village and

Regional Corporations under this Act;
Ch. 5 Federal Laws Affecting Alaska Lands and Resources . 123

(C) be available to advise upon and assist

in the development and review of land use

plans for lands selected by the Native Village

and Regional Corporations under this Act

and by the State under the Alaska Statehood

Act;

[D) review existing withdrawals of Federal

public lands and recommend to the President

of the United States such additions to or

modifications of withdrawals as are deemed

desirable;

(E) establish procedures, including public

hearings, for obtaining public views on the

land use planning programs of the State and

Federal Governments for lands under their

administration;

(F) establish a committee of land use advisers to the Commission, made up of representatives of commercial and industrial land

users in Alaska, recreational land users, wilderness users, environmental groups, Alaska

Natives, and other citizens;

(G) make recommendations to the President of the United States and the Governor of

Alaska as to programs and budgets of the

Federal and State agencies responsible for

the administration of Federal and State

lands;

(H) make recommendations from time to

time to the President of the United States,

Congress, and the Governor and legislature

of the State as to changes in laws, policies,

and programs that the Planning Commission

determines are necessary or desirable;

(I) make recommendations to insure that

economic growth and development is orderly, planned and compatible with State and

national environmental objectives, the public

interest in the public lands, parks, forests,

and wildlife refuges in Alaska, and the economic and social well-being of the Native

people and other residents of Alaska;

(J) make recommendations to improve

coordination and consultation between the

State and Federal Governments in making resource allocation and land use decisions: and

(K) make recommendations on ways to

avoid conflict between the State and the

Native people in the selection of public

lands. *02

EASEMENTS ACROSS

NATIVE LANDS

Section 17(b) provides that “the Planning

Commission shall identify public easements

across lands selected by Village Corporations

and the Regional Corporations and at periodic points along the courses of major waterways which are reasonably necessary to

guarantee international treaty obligations, a

full right of public use and access, and access

for recreation, hunting, transportation, utilities, docks, and such other public uses as the

Planning Commission determines to be important.’’ 103 In identifying these public easements, the Commission is to consult with

State and Federal agencies, review proposed

transportation plans, and receive and review

statements from interested groups and individuals on the need for and the proposed

location of public easements.104 The Secretary

of the Interior must consult with the Planning

Commission and reserve “such easements

as he determines are necessary” in any patent conveying lands to a Native Village or Regional Corporation under the provisions of

ANCSA. 105

Section 17(c) provides that “in the event

that the Secretary withdraws a utility and

transportation corridor across public lands

in Alaska pursuant to his existing authority, ”

the State and Native Village and Regional

Corporations will be precluded from selections in the areas withdrawn. 106 This provision refers to right-of-way corridor withdrawals for a construction haul road and an

oil pipeline to transport oil from the North

Slope.

In February and March 1976, the Secretary of the Interior issued orders establishing

the departmental policies and guidelines on

the reservation of extensive easements

across lands conveyed to Native Corporations. 107 These easements provoked strong

reactions from several Native Corporations

and have been the subject of litigation.

Order No. 2982 deals with local easements, that is, all public easements other
— —.

124. Analysis of Laws Governing Access Across Federal Lands

than those used in interregional or interstate

commerce, in the transportation of natural

resources, or in interstate communications

systems. 108 The order specifies the policy,

guidelines, and procedures for reserving

easements. This order includes easements to

provide: access to public lands and resources; a continuous 25-foot easement along

the marine coastline; access and recreational

use easements along “highly significant”

recreational streams and rivers; and easements for utility, communications and

weather purposes, for landing and docking

sites, and for “overnight” camp and rest

areas, etc.109 Guidelines include standards,

widths, uses, and purposes. These easements

are to be reserved to protect the public interest in land conveyed to Natives under

ANCSA and to meet the requirements of public law.110 Several of the easements specified

in this order were challenged by Natives and

overturned by a Federal District Court decision.111

Order No. 2987 establishes guidelines for

reserving easements for the transportation of

energy, fuel, and natural resources.112 This

order establishes the so-called “floating”

easements, that is, easements which are not

specifically located but rather are reserved

“in behalf of the United States to cross all the

land conveyed pursuant to the ANCSA . . "113

The specific location of easements reserved

by this order is to be determined after consultation with and consent of the non-Federal

owner. 

114 The order provides that the United

States may exercise the right of eminent domain if consent is not given.115

This order subjects all lands conveyed to

Alaska Natives to a “floating” or “blanket”

easement for federally owned energy transmission systems or for the transportation of

federally produced or purchased energy,

fuel, or natural resources.116 Native lands in

the Aleutian Islands and the southeastern

panhandle were excluded from the easement

provision because prior studies of potential

transportation routes disclosed that few

areas in these regions would be used for

energy and natural resource transportation

systems. 117

Order No. 2987 specifically provides that

such easements will not be available for access across Native lands for development of

resources on non-Federal lands:

Privately owned energy, fuel, and natural

resources that are being developed for a

profit should not be afforded extraordinary

privileges across private property. Therefore, easements should not be reserved by

the United States in conveyances to Alaska

Natives for the benefit of such privately

owned energy, fuel, and natural resources. 118

Subsequently, the Alaskan Natives filed

suit, contesting the validity of sections of both

orders.119 On July 7, 1977, the Federal District

Court in Alaska ruled that several aspects of

Order 2982 were invalid.120 In particular, the

court found that the “continuous 25-foot

marine coastline easement” and a major portion of the linear easements on “highly significant recreational rivers and streams were illegal.’’ 121 The court also ruled that Order

2987, the “floating” easement for transportation corridors, was void in toto.122

Because the court viewed ANCSA as a settlement act and not a public land law, certain

specific statutory easements reserved on all

lands conveyed out of Federal ownership

were also overturned. These easement reservations for railroads, communications lines,

and ditches and canals were held to be preempted by section 26 of ANCSA.123 The Justice

Department filed a protective notice of appeal, and several of the plaintiffs also appealed. 124 A tentative settlement of the easement litigation was announced in early 1978.

Order 2987 was revoked in May 1978.125
Ch. 5 Federal Laws Affecting Alaska Lands and Resources ● 125

FOOTNOTE REFERENCES FOR ALASKA NATIVE CLAIMS

SETTLEMENT ACT

‘Act of December 18, 1971, Public Law 92-203, 85

Stat. 688, codified at 43 U.S.C. 1601 (Supp, IV 1974).

2

43 U.S.C. 1603.

3 See 43 U.S.C. 1605, 1608, 1611, 1613, 1616, and

1618. ‘

4

43 U.S. C. 1606, 1607.

5

43 U.S.C. 1616(d)(2)(A).

81d.

7

43 U.S.C. 1616(d)(2)(D).

8

The major Alaska Lands Bills introduced in the 95th

Congress are:

H.R. 39, The Alaska National Interest Lands Conservation Act, introduced by Representative Udall and

supported by the Alaska Coalition, an alliance of environmental, conservation, and recreation organizations (comparable measures include H.R. 1974 and H.R.

2976);

S. 1500, Senate version of H.R. 39 introduced by

Senator Metcalf (comparable measure, S. 500);

S. 1787, Alaska National Interest Lands Act, introduced by Senator Stevens of Alaska and supported

by Representative Young of Alaska and by Governor

Hammond of Alaska;

S. 499, H.R. 6564, the original Morton proposal first

introduced in the 93d Congress, Dec. 17, 1973; and

S. 2944, Alaska Lands Conservation and Management Act, introduced by Senator Gravel of Alaska.

The Carter Administration did not offer a separate

D-2 proposal, but, instead recommended a series of

technical amendments to H.R. 39 in hearings before the

House and Senate Committees.

For a description and comparison of Alaska Lands

legislation introduced in the 94th Congress, see Federal

State Land Use Planning Commission for Alaska, “The

D-2 Book” Volume 11: Lands of National Interest in

Alaska-” A Comparative Analysis, ” November 1977.

‘H.R. 39, 95th Cong., 2d sess., 124 Cong. Rec. H4329

(daily ed. May 19, 1978). See also House Rept. 95-1045,

pts. I and II (Alaska National Interest Lands Conservation Act of 1978). On Oct. 15, 1978, the Senate a djourned without acting on its version of Alaska Lands

legislation. S, Rept. 95-1300, reported Oct. 9, 1978. See

also 124 Cong., Rec. S19135 to S19141 (daily ed. Oct.

14, 1978, pt. IV).

‘OTreaty of March 30, 1867, 15 Stat. 539.

“Act of May 17, 1884, section 8,23 Stat. 24.

‘

z

Federal Field Committee for Development Planning

in Alaska, Alaska Natives and the Land, 434 (1968).

1

3 Act of July 7, 1958, Public Law 85-508, 72 Stat. 339,

48 U.S.C. Prec. $21 (1970).

141d., section 4.

‘5Alaska Natives and the Land, supra. note 12, at

439. Without Federal recognition of their rights, Alaska

Natives faced the threat that their aboriginal lands

might be disposed of by the Federal Government without payment of just compensation. See Tee-Hit-Ton Indians v. United States, 348 U.S. 272 (1955).

‘eAlaska Natives and the Land, at 440. By 1968, these

protests covered 80 percent of the lands in the State.

See Statement of Asst. Secretary of the Interior, Guy

Martin, before the Subcommittee on General Oversight

and Alaska Lands of the House Comm. on Interior and

Insular Affairs, page 2, July 21, 1977. (Hereinafter

Statement of Asst. Secretary Martin).

1’34 F,R. 1025, Jan. 17, 1969. At his confirmation

hearings, Interior Secretary-Designate Walter Hickel,

the former Governor of Alaska, agreed to honor the

Udall land freeze for 2 years.

1’43 U.S.C. 1601(a).

“43 U.S.C. 1601(b).

2043 U.S.C. 1603.

2143 U.S.C. 1603(a).

2243 U.S.C, 1603(b).

2343 u.S.C. 1603(c).

2443 U.S.C. 1604. The 12 regions, recognized in section 5(a), roughly correspond to the geographic areas

represented by the Native associations existing at

passage of ANCSA. 43 U.S.C. 1606(a). The 13th region

includes all nonresident Natives who chose not to enroll

in the 12 geographic regions. 43 U.S.C. 1606(c).

2543 U,S.C. 1604, as amended by the Act of January 2,

1976, Public Law 94-204, section 1,89 Stat. 1145.

2bMorgan, “From Ketchikan to Barrow, ” Alaska

Magazine, May 1977, at 9.

2’43 U.S.C. 1602(b)

2843 U.S.C. 1605(b).

2943 U.S, C, 1606(C), originally, the %CI’etEIryruled

that a majority of nonresident Natives had elected not

to form an optional 13th region under section 7(c) of

ANCSA. This decision was challenged and reversed.

Alaska Native Ass’n of Oregon v. Morton, Civil Action

No. 2133-73; A~aska Fed’n of Natives Int’1 v. Morton,

Civil No. 2141-73 (D. D. C., filed Dec. 30, 1974). See also

Public Law 94-204, section 8,89 Stat. 1149.

3043 U.S,C, 1606(d), Section 7(e), 43 LJ. S.C. 16We), requires that the original articles of incorporation and

bylaws of the corporation must be approved by the Secretary of Interior within 18 months of the enactment of

ANCSA. The articles of incorporation may not be

amended within 5 years of establishment of the Regional Corporation without the approval of the Secretary.

Thirteen Native Regional Corporations were formed

under section 7 of ANCSA, 43 U.S.C. 1606. These corporations and their enrolled membership as of March

23, 1978 are:

Enrolled

Region membership

Ahtna, Inc. . . . . . . . . ... , . . . . . . . . . . . . . . . . . . . . 1,057

Aleut Corporation. . . . . . . . . . . . . . . . . . . . . . . . . . . 3,124

Arctic Slope Regional Corporation. . . . . . . . . . . . . . 3,710
126 ● Analysis of Laws Governing Access Across Federal Lands

Enrolled

Region membership

Bering Straits Native Corporation. . . . . . . . . . . . . . 6,271

-— .

Bristol Bay Native Corporation . . . . . . . . . . . . . . . . 5,315

Calista Corporation ... , . . . . . . . . . . . . . . . . . . . . .13,193

Chugach Natives, Inc.. . . . . . . . . . . . . . . . . . . . . . . . 1,881

Cook Inlet Region, Inc. . . . . . . . . . . . . . . . . . . . . . . . 6,052

Doyon, Ltd.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8,905

Koniag, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,267

NANA Regional Corporation, Inc. . . . . . . . . . . . . . . 4,761

Sealaska Corporation. . . . . . . . . . . . . . . . . . . . . .. .15,388

The 13th Regional Corporation . . . . . . . . . . . . . . . . 3,997

SOURCE: Alaska Natives Regional Profiles, U.S. Dept. of the Interior, Bureau of Indian Affairs, Report No. 269, October 1978.

3

’43 U,S.C. 1607.

Szsee 43 U.S.C. 1606, 1611, and 1613.

ssFOr a description of the business ventures of the

Alaska Native Corporations, see Morgan, “From Ketchikan to Barrow, ” Alaska Magazine, May 1!377 at 9 and

Maska Native Regional Pro~iles, supra, note 30.

3443 U.S. C, 1606(h)(l). On Jan. 1, 1992, all Native corporation stock issued will be canceled and each

shareholder will receive new stock without any restrictions on transfer on a share for share basis. 43 U.S.C.

1606(h)(3).

3343 U.S, C. 1606(h)(2).

3643 U.S. C. 1605( a~l).

3743 U.s,co lG()!j(a)(2) and 1608. See also 30 U.S.C.

191.

3s43 U.S,C. 1608(d), section 6(g) of ANCSA as

amended by Public Law 93-153, the Trans-Alaska Pipeline Act, section 407, 87 Stat. (1973), provides for advance payments to the Alaska Native Fund chargeable

against mineral leasing revenues to be paid under section 9 of ANCSA, 43 U.S.C. 1608(g). These advance payments were authorized because of the delays in the construction of the Trans-Alaska Pipeline. Advance payments stopped once the pipeline commenced delivery of

oil from the North Slope in the late summer of 1977.

3943 U.S,C, 1608(g).

’43 U.S.C. 1605(a).

4143 U.S.C. 1605(c).

4243 U.S.C. 1606(d).

4343 u,S,C. 1606(i).

4443 u.S.C. 1606(j).

4~See 43 u.S.C. 1606(i) and 1611. In the 95th Congress, hearings were held before the Indian Affairs

Subcommittee of the House Committee on interior and

Insular Affairs on H.R. 12529, a bill providing for an

equitable distribution of land to the 13th Regional Corporation.

*43 U.S.C. 1611 (22 million acres to Native villages,

16 million acres to Regional Corporations); 43 U.S.C.

1613 (2 million acres): 43 U.S.C. 1615 (230,400 acres to

Southeast Natives); 43 U.S.C. 1618 (4 million acres of

former Native Reserves]. In addition, some 800,000

acres will pass to individual Natives under applications

made under various Native allotment acts and approved after Dec. 18, 1975. See 43 U.S.C. 1617.

tTEligibility qualifications for Native village selections are set forth in section n(b)(2) (43 U.S.C.

1610(b)(2)), section 12 (43 U.S.C. 1611), section 14 (43

U.S.C. 16) and section 16 [43 U,S.C. 1615) of ANCSA.

Of over 200 Native villages, 195 were determined to

be eligible for village selections (however, the eligibility

of one of these villages has been challenged in litigation

brought by some Alaskan residents). Ten more villages

are involved in litigation with the Department of the Interior over eligibility. Three more villages which had

filed selections under section 12(a] were found ineligible by the Department. Statement of Asst. Secretary

Martin, supra, note 16 at page 16.

‘See 43 U.S.C, 161 l(a) and (b); 43 U.S,C. 1613(h); 43

U.S.C. 1615,

4943 U.S.C. 161 3(f).

’43 U.S,C. 1611(a)(l); 43 U.S,C, 1615(b).

s’43 U.S.C. 1613(a), section 14(a), 43 U.S.C. 1613(a)

provides for village land entitlements for first round

selections under section 12(a) on the basis of population:

Native population

in 1970 census between Entitlement

25 and 99. ., . . . . . . . . . . . . . . . . . . . . . . . . . 69,120 acres

100 and 199. . . . . . . . . . . . . . . . . . . . . . . . . . 92,160 acres

200 and 399. .., , . . . . . . . . . . . . . . . . . . . . .115,200 acres

400 and 599. , ., ... , . . . ., . . . . . . . . . . . ..138,240 acres

600 or more. , . . . . . . . . . . ., ., . . . . . . . . . .161,280 acres

Native villages in southeast Alaska receive 23,040

acres regardless of population; 43 U.S.C. 1615. Secondround village selections are to be allocated among villages by the Regional Corporations “on an equitable

basis after considering historic use, subsistence needs,

and population;” 43 U.S,C. 1611(b).

5z43 U.S.C. 161 1(c)(3).

5343 U.S, C. 1611(c), The 11 resident Regional Corporations outside southeast Alaska will share in approximately 16 million acres distributed according to a

“land lost” formula based on the geographic area of

each region set forth in section 12(c), 43 U.S.C. 1611(c).

Land selections under section 14(h)(8], 43 U.S.C.

1613(h)(8), will be allocated among all 12 resident

Regional Corporations on the basis of population.

“43 U.S,C, 1614.

SSBY 1977, less than 5 million acres of Native selections had been conveyed by the United States. See

discussion of these delays in Statement of Asst.

Secretary Martin, supra, note 16. See also, Hearings on

Alaska Natural Resource Issues Before the Senate

Comm. on Energy and Natural Resources, 95th Cong.,

1st sess. (1977) and Lazarus and West, “The Alaska

Native Claims Settlement Act: A Flawed Victory,” 40

Law & Contemp. Prob. 132 (1976].

5643 U.S, C. 1610(a).

5

7

43 U.S.C. 1615(a).

5s43 U.S. C. 1611.

SS43 U.S.C. 1610( a~2), The purpose of these withdrawals is explained in the ANCSA Conference Committee Report:

Section 11 of the conference report withdraws

lands around villages, including villages located

on lands selected by or tentatively approved to the
Ch. 5 Federal Laws Affecting Alaska Lands and Resources . 127

State. This section also provides for the withdrawal of in lieu lands adjacent to the 25 township

area to insure that the land selection rights of

Native Villages and Regional Corporation will be

fully protected and will not be frustrated by competing State selections or the creation of new interests in lands under the public land laws.

S. Rept. 92-581, 92d Cong., 1st sess., reprinted in

Subcomm. on General Oversight and Alaska Lands of

the House Comm. on Interior and Insular Affairs, 95th

Cong., 1st sess., Background Information for Alaska

Lands Designations (Comm. Print No. 4, 1977) at 72.

6043 U.S.C. 1610(a)(3).

6143 U.S. C. 1610( a], 43 U,S. C. 1615( a]. These lands

and others were withdrawn under Public Land Orders

5169 to 5188, 37 F.R. 5572-5591, Mar. 16, 1972.

6243 U.S,C. 1615, section 16(b), 43 U.S.C. 1615(b), authorizes selection of 23,040 acres by each of nine

Native villages listed in section 16(a), 43 U.S.C. 1615(a).

The Native village of Klukwan is entitled to select

23,040 acres by section 16(d), 43 U.S,C. 1615(d), as

amended by Public Law 94-456, section l(b), 90 Stat.

1934, Oct. 4, 1976. The villages in southeast Alaska had

already participated in a monetary judgment against

the United States and therefore were given a smaller

land settlement than other Native regions under

ANCSA. See 43 U.S.C. 1615(c).

6343 U.S.C. 1611(a) and (b).

6443 U.S.C. 161 l(c).

‘

5 See 43 U.S.C. 1610(a)(2) and 43 U.S.C. 1o11.

See Background Memorandum on section 17(d)(2) of the

Alaska Native Claims Settlement Act to Members,

Senate Comm. on Interior and Insular Affairs from

Steven P. Quarles, Counsel, Nov. 12, 1975 at 7 (hereinafter “Memorandum”). Other State selections are protected by the definition of “public lands” in section 3(e)

of ANCSA, 43 U.S.C. 1602(e):

“Public lands” means all Federal lands and interests therein located in Alaska except: (1) the

smallest practicable tract, as determined by the

Secretary, enclosing land actually used in connection with the administration of any Federal installations, and (2) land sections of the State of

Alaska which have been patented or tentatively

approved under Sec. 6(g) of the Alaska Statehood

Act, as amended (72 Stat. 341, 77 Stat. 223), or

identified for selection by the State prior to Jan.

17, 1969.

8643 U.S.C. 1613(h). When the land selections regulations were developed in 1973, an allocation formula for

this 2 million acres was agreed upon between the Department and Native representatives. This allocation

(43 CFR 2653 .l(a)) provides the following:

500,000 acres—25,000 acres to each region;

200,000 acres to regions on population percentile, cemetary and historical sites, groups, and

individual Native residents;

92,160 acres—23,040 acres to each of the four urban corporations;

400,000 acres—for Native allotments approved

by December 1975 (195,ooo acres actually approved);

Balance—to regions on population basis.

See Statement of Asst. Secy. Martin, supra note 16, at

22.

13T43 U,S.C. 1617(a). These Native allotments were authorized by the Alaska Native Land Allotment Act, Act

of May 7, 1906, c.2469, 34 Stat, 197, as amended by the

Act of August 2, 1956, c,891, 70 Stat. 954 (repealed by

section 18(a) of ANCSA, 85 Stat. 710) and by the general allotment provisions of 25 U,S,C. 334 and 337. The

Alaska Native Land Allotment Act provided for an

allotment of 160 acres of nonmineral land to Alaska

Natives meeting certain residency requirements. From

passage of the Act to 1960, only 80 allotment patents—

most of them in southeastern Alaska—were issued. Allotment applications covering approximately 1.2 million

acres were pending on passage of ANCSA.

’843 U.S,C. 1617(b).

“

g

Based on acreage figures supplied by the Department of the Interior to Richard W. Wright of the OTA

Materials Program staff in July 1977.

7043 U.S.C. 1618(b),

7}43 U.S.C. 1618(b). See Statement of Asst. Secy. Martin, supra, note 16 at 22.

72 See 43 CFR 2651.4(f) (village selections); 43 CFR

2652.3(f) (Regional Corporation selections); and 43 CFR

2653.9(b) (section 14(h) selections).

Approximate Entitlements & Overselections

(in millions of acres)

set. set.

Type entitlement selection

Village first round (12(a) & 16(b),

(includes southeast)). . . . . . . . . . . 18-20 30

Village second round [12(b)). . . . . . . 4-2 30

Regional (12(c)). ... , . . . . . . . . . . . . 16 35

Miscellaneous (14(h)) . . . . . . . . . . . . 2 10

Former reserves (19(b)) ... , , . . . . . 4 4

Total . . . . . . ... , ... , . . . . . . . 44 1 10*

*Overlaps betwaen types of selections occurred. The total of 110 million

acres is the estimated net area selected,

SOURCE: Statement of Asst. Secy. Martin, supra, note 16 at 5.

7343 U.S.C. 1621(h).

7443 U.S.C. 1616(d)(l), See Public Land Orders 5169

to 5188, 37 F.R. 5572-5591, Mar. 16, 1972 and subsequent amendments.

75See, for example, the arrangements by Bristol Bay

Native Corporation, Arctic Slope Regional Corporation

and Chugach Natives, Inc. described in Morgan, supra,

note 26. Doyon Ltd. is planning to exploit asbestos

deposits in the Yukon-Charley region. H.R. 39 as passed

by the House on May 19, 1978 included a special provision authorizing rights-of-way through the proposed

Forty Mile Wild and Scenic River area to accommodate

Doyon’s mineral enterprise. See H.R. 39, section 501,

95th Cong., 2d sess. (1978).

7643 U.S.C, 1616(d)(2).

771d.

7sId,

‘

e

Public Land Order 5179, 37 F.R. 5579, Mar. 16,

1972, modified because of a consent agreement be-
128 ● Analysis of Laws Governing Access Across Federal Lands

tween Dept. of Interior and the State of Alaska. See

Public Land Orders 5250 through 5257, 37 F,R. 18730,

Sept. 15, 1972, 37 F.R. 18911 to 18916, Sept. 16, 1972

and 37 F.R. 19370, Sept. 20, 1972. The text of the settlement of State of Alaska et aL v. Morton is reprinted in

the House Report on H.R. 39, H. Rept. 95-1045, pt. I,

95th Cong., 2d sess., 403 (1978).

’43 U.S.C. 1616(d)(2).

81The Morton proposal was originally introduced in

the 93d Congress as H.R. 12336 and S. 2917. It was

reintroduced in the 94th Congress as H.R. 6089 and S.

1617, In the 95th Congress, the Morton proposal was introduced as H.R. 6564 and S. 499.

ez43 u.S.C, 1616(d)(2).

Essee public Land order 5179 as modified, suPra!

note 79.

8443 u.S.C, 1616(d)(l).

“Id.

‘Id.

8743 U.S.C. 1610( a~l).

%ee Public Land Orders, supra, note 79.

‘eSee, for example, Public Land Orders 5185 and

5186, 37 F.R. 5588 to 5589, Mar. 16, 1972.

‘At the request of the State of Alaska, Public Land

Order 5418, 39 F.R. 11547, Mar. 25, 1975 closed to further entry public lands that had been made available to

selection under Public Land Order 5185, 37 F.R. 5588,

Mar, 16, 1972.

gl~blic Law 94-579, 90 Stat. 2785, 43 U.S.C. 1782.

‘2BLM Draft Proposed Wilderness Policy and Review

Procedure, Feb. 27, 1978, at p. 17. See also Office of the

Solicitor, Application of Mining and Grazing Laws to

Areas Under Review for Inclusion into Wilderness System: Section 603, Federal Land Policy and Management

Act of 1976, Jan. 8, 1978 (Opinion), and the following

Organic Act Directives: OAD 76-15, Dec. 14, 1976; OAD

77-21, Feb. 16, 1977; and OAD 77-29, Mar. 15, 1977.

9343 u.S.C, 1616(a)(l).

9443 U.S.C. 1616( a~l)(A).

“Id.

“43 U.S.C. 1616(a~l)(B).

’

7

43 U.S.C. 1616(a~2).

‘eId.

9943 U.S.C. 1616( a~3).

1

OOS. Rept, 92-581, 92d Cong., 1st sess., reprinted in

Subcomm. on General Oversight and Alaska Lands of

the House Comm. on Interior and Insular Affairs, 95th

Cong., 1st sess., Background Information for Alaska

Lands Designations (Comm. Print No. 4, 1977) at 5.

l“lpublic Law 94-204, section 7,89 Stat. 1149.

10243 U.S.C. 1616( a~7).

‘

0343 U.S.C. 1616(b)(l).

‘W43 U.S.C. 1616(b)(2).

10’43 U.S.C. 1616(b)(3).

1~43 U.S.C. 1616(c). The Secretary withdrew the

pipeline right-of-way on Dec. 28, 1971, Public Land

Order No. 5150,36 F.R. 25410.

‘“’ Order No. 2982, Reservation of Local Easements,

41 F.R, 6295, Feb. 12, 1976; Order No. 2987, Reservation of Easements for the Transportation of Energy,

Fuel, and Nonfuel Resources, 41 F.R. 11331, Mar, 18,

1976, #

lW41 F.R, 6295, Feb. 12, 1976.

IWId.

‘l”Order No. 2982, Sec. 4,41 F.R. 6295, Feb. 12, 1976.

1]]Alaska Public Easement Defense Fund v, Andrus,

435 F. Supp. 664 (D. Alas. 1977) reprinted in Hearings

on Inclusion of Alaska Lands in National Park, Forest,

Wildlife Refuge, and Wild and Scenic Rivers Systems

before the Subcomm. on General Oversight and Alaska

Lands of the House Comm. on Interior and Insular Affairs, 95th Cong., 1st sess,, pt. XV, at 354 (Ser. No.

95-16, 1978),

1’241 F.R. 11331, Mar. 18, 1976.

1130rder No. 2987, Sec. 4,41 F.R. 11332 (1976).

l]40rder No. 2987, Sec. 2,41 F,R. 11331 (1976).

llsId,

“@Id.

l’70rder No. 2987, Sec. 4,41 F.R. 11332 (1976).

1 ]BId.

‘tgLawsuits were filed by the Alaska Federation of

Natives and six Native Regional Corporations and separately by Sealaska Corp. in the Federal District Court in

Washington, D.C. These cases were consolidated and

transferred to Federal Court in Alaska and there joined

with another case brought by the Alaska Public Easement Defense Fund which alleged that the Secretary

had failed to reserve sufficient public easements

across Native lands. See 435 F. Supp 667, n. 1.

‘20Alaska Public Easement Defense Fund v. Andrus,

435 F. Supp 664, (D. Alas. 1977).

‘2’435 F. %Jpp. 677 to 679,

‘

22435 F. Supp. 679 to 680.

‘

23435 F. fhq)p. 680 to 681,

‘24See hearings on Inclusion of Alaska Lands in National Park, Forest, Wildlife Refuge, and Wild and

Scenic Rivers Systems Before the Subcomm. on General

Oversight and Alaska Lands of the House Comm, on Interior and Insular Affairs, 95th Cong., 1st sess., pt. XV,

at 128 (Ser. 95-16, 1978). See also, the Secretarial Issue

Papers on ANCSA Easement Policy and Procedures, Id.

at 504 to 540.

‘

25 Secretarial Order 2987 was revoked by Secretarial

Order No, 3020,43 F.R. 19726, May 8, 1978.
Ch. 5 Federal Laws Affecting Alaska Lands and Resources ● 129

In recent years, Congress has passed three

laws that establish special rules for the access use of some Federal land involved in

energy-related projects.1 One of these laws,

which changed the management of the Naval

Petroleum Reserve No. 4 in Alaska, transferred authority for making decisions on

right-of-way requests from the Secretary of

the Navy to the Secretary of the Interior.2 It

did not, however, effect any other change in

the laws and regulations which control access policies for that particular Federal installation. The other two laws, which established procedures for construction of the

Alaskan oil and natural gas pipelines, made

wholesale changes in the procedures that

were used in granting rights-of-way for such

projects.

NAVAL PETROLEUM RESERVES

PRODUCTION ACT OF 1976

Four naval petroleum reserves on the public lands were created by Presidential order

between 1912 and 1923.3 One of these, Naval

Petroleum Reserve Numbered 4 (NPR-4), was

located in Alaska. Title I of the Naval Petroleum Reserves Production Act of 1976 transferred administration of the area in NPR-4 to

the Secretary of the Interior and redesignated it as the National Petroleum Reserve in

Alaska (NPRA).4 A small tract on which the

Naval Arctic Research Laboratory in Point

Barrow is located and surface lands to be

transferred to Native villages under ANCSA

are excluded from the reserve although they

are located within its exterior boundaries.5

Subject to existing rights, lands within the

boundaries of the reserve were withdrawn

from all forms of entry and appropriation

under the public land laws, including the

Mining Law of 1872 and the Mineral Leasing

Act of 1920.6 Areas around the Utukok River

and the Teshekpuk Lake regions were placed

in a special protected category.7 Exploration

Note: Footnotes for this section appear on pp. 134-136.

in these areas must be conducted in a manner

to preserve significant subsistence, recreational, fish and wildlife, and historic or scenic

values. 8

Immediate responsibility for activities related to the protection of the environment,

fish and wildlife, and historic or scenic values

of the lands involved was vested in the Secretary of the Interior effective on enactment of

the legislation.9 Other functions were transferred 1 year later so that Navy and Interior

personnel could work together during a winter season to provide experience in management and ensure a smooth transfer.10

The Act provides that only exploration activities will be allowed on the reserve, and

that no production or development leading to

production is authorized without congressional review and authorization.11 Continued

operation of South Barrow field for local use

is permitted. The Act directs that three

studies of the area be conducted.12 These include the study called for by section 164 of

the Energy Policy and Conservation Act13 and

a Presidential study of the petroleum resource value of the area to determine the best

overall plan for development, production, and

transportation of petroleum resources in the

reserve.

14 The latter report is to be made to

Congress by January 1, 1980.

The third study is to be conducted by the

Secretary of the Interior in consultation with

representatives of Federal agencies, the

State of Alaska, and Native groups, to determine the values of and the best uses for lands

within the reserve. *5 The study is specifically

required to examine (1) the needs of the

Natives who live or depend on lands in the

reserve, (2) scenic, historic, recreational, fish

and wildlife, and wilderness values, (3) mineral potential, and (4) other values. ’b The

Secretary is to submit a report, including

recommendations for appropriate designations of land, by April 1979.
130 ● Analysis of Laws Governing Access Across Federal Lands

Section 102 authorizes the Secretary to

“grant such rights-of-way, licenses, and permits as may be necessary to carry out his responsibilities under this Act.”17 The same section also provides that, “All other provisions

of law heretofore enacted and actions heretofore taken reserving such lands as a Naval

Petroleum Reserve shall remain in full force

and effect to the extent not inconsistent with

this Act.” 18 These two provisions taken

together have the following effect: Right-ofway applications for access within the reserve must comply with the procedures established under the general authority of the

Secretary of the Interior;19 the substantive

law that governs Secretarial decisionmaking

will include any standards controlling the

general authority as construed in light of the

Reserves Act and other laws that previously

applied to NPR-4.20 Until such time as Congress acts on recommendations of the Secretary of the Interior for redesignation, access

to non-Federal mineral resources will be a

less favored use for lands in NPRA.

TRANS-ALASKA PIPELINE ACT

In the winter of 1967-68, a wildcat rig drilling Prudhoe Bay State Well No. 1 struck a formation that proved to be the largest oil reserve on the North American continent.21 The

discovery was announced on July 18, 1968.22

Fourteen months later, the State of Alaska

auctioned off leases on 450,000 acres of

Prudhoe Bay for $900 million.23

Even before the lease sales, the three oil

companies already holding producing leases

at Prudhoe Bay had organized the TransAlaska Pipeline System (TAPS) and filed an

application with the Department of the Interior to build an 800-mile hot-oil pipeline to

Valdez. 24 TAPS sought a waiver from the Federal land freeze imposed because of the

Native claim controversy for the pipeline and

a 360-mile North Slope haul road.25 A waiver

from the land freeze was approved in December 1969, and in early 1970 the Department

of the Interior prepared to issue a permit for

Photo Credit: The Alaska Coa/lt/on

The North Slope Haul Road, authorized by the Trans-Alaska Pipeline Act, provides the first surface access north of the

Yukon River. Extending from Fairbanks to Prudhoe Bay, the road was transferred to State ownership in the fall of 1978
Ch. 5 Federal Laws Affecting Alaska Lands and Resources ● 131

the haul road when a series of lawsuits

brought the project to a halt.26

In March 1970, five Native villages along

the proposed route filed suit claiming ownership of the affected land by virtue of their

aboriginal land rights.27 Shortly thereafter,

three conservation groups filed suit contending that the pipeline violated the 1920 Mineral Leasing Act—under which rights-of-way

were being sought—and the newly passed

National Environmental Policy Act (NEPA).28

On April 13, 1970, a temporary injunction

was granted in the latter case, blocking the

pipeline project and prohibiting the Secretary

of the Interior from issuing a permit. 29

In 1971, several actions were taken by Congress and the executive branch to seek to

break the impasse. Passage of the Alaska Native Claims Settlement Act (ANCSA) ended

the controversy over Native landownership.30

The Department of the Interior held lengthy

hearings during 1971 on the environmental

impact of the pipeline proposals and released

an environmental impact statement (EIS) on

March 20, 1972. On August 15, 1972, the temporary injunction was dissolved after a n

opinion by the District Court that the requirements of NEPA had been met and that the Department of the Interior could issue a specia l

use permit to allow the pipeline builders more

than the 50-foot right-of-way permitted by the

Mineral Leasing Act. 31

On February 9, 1973, the Court of Appeals

reversed this ruling and again enjoined the

Secretary from issuing a right-of-way .32 It

found that the Department of the Interior had

exceeded its statutory authority in proposing

to grant the special right-of-way and land u s e

permits. Two months later, the Suprem e

Court refused to review this decision. 33

This chain of events provided the impetus

for the passage, on November 16, 1973, of

Public Law 93-153 generally known as the

Trans-Alaska Pipeline Act,

34 Title 1 of Public

Law 93-153 amended section 28 of the Mineral Leasing Act, which provides rights-ofway across Federal lands for oil pipelines. 35

The most important amendment allows the

Department of the Interior to grant rights-ofway in excess of 50 feet where a wider rightof-way is found to be “necessary for operation and maintenance after construction, o r

to protect the environment or public safety.”36

Other provisions of the amended section 28

also have a bearing on the use of Federa l

lands for pipeline rights-of-way. Section 28

authorizes pipeline rights-of-way over a l l

Federal lands except national parks, lands

held in trust for Indian tribes or an Indian ,

and land on the Outer Continental Shelf. 37 A

pipeline right-of-way may not be grante d

through any reserved Federal lands if the

Secretary or the appropriate agency head

managing the land determines that it would

be inconsistent with the purpose of the reservation.

38 The agency head may impose appropriate regulations, terms, and conditions o n

the right-of-way, including provisions for e n -

vironmental protection and restoration, public safety, protection of fish, wildlife, and

habitat values, and subsistence resources.

39

Title I also requires that the applicant demonstrate the technical and financial capability to construct, operate, maintain, and terminate the project in accordance with the statutory conditions.40 Each right-of-way reserves

to the Secretary or agency head the right to

grant additional rights-of-way for compatible

uses on or adjacent to the pipeline.41 T h e

Secretary was directed to prepare a report

on the need for a national system of transportation and utility corridors across Federal

lands in order to minimize adverse environmental impacts and to prevent the proliferation of rights-of-way across Federal lands.42

This report was presented to the President

and Congress.

Title II of Public Law 93-153 is the TransAlaska Pipeline Authorization Act.43 It mandated expedited administrative action on the

TAPS project. The Act provided that no further NEPA review was to be undertaken and

contained a legislative finding of sufficiency

of the final EIS issued by the Department of

the Interior on March 20, 1972.44
132 ● Analysis of Laws Governing Access Across Federal Lands

Furthermore, it limited administrative and

judicial review of any certificates, rights-ofway, permits, and licenses related to or necessary to the construction, operation, and

maintenance of TAPS including roads and

airstrips.45 Executive agencies and departments were ordered to issue necessary permits. Judicial review was limited in scope and

the time for filing claims was limited to 60

days from any contested action; this meant

that opportunities for redress, review, or

relief in Federal or State courts were cut off.

In exchange for this limitation on judicial and

administrative remedies, strict liability was

imposed for incidents harming wildlife and

subsistence resources and for spillage incidents.46 Strict liability for harm to wildlife

and subsistence was limited to $50 million

per incident and liability for oilspills was

limited to $100 million.47 Damages from construction, operation, and maintenance, etc.,

greater than $50 million are to be decided according to the laws of negligence. Claims

greater than $100 million for spillage are to

be decided in judicial proceedings or by arbitration. A TAPS liability fund was established to pay damages from oilspills. This was

to be funded by $0.05 per barrel paid by the

owner of the oil transported.48

The Act further provided that the roads

and airstrips constructed for the project

could be public roads or airstrips.49 The contractor has arranged to turn over the pipeline

haul road to the State of Alaska. It is anticipated that it will eventually be open to the

public. If the State fails to operate the haul

road as a public road, it may be required to

pay back Federal funds received for bridge

and road construction in anticipation of eventual public highway designation.50

Section 407 of the Act authorized advance

payments of royalties due Alaska Natives

under the terms of ANCSA.51 These advance

payments were provided in recognition of the

delays in construction of the oil pipeline to

transport North Slope crude oil. Advance

payments will continue until such time as

delivery of North Slope oil to a pipeline is

commenced. TAPS began operation in the

summer of 1977.

ALASKA NATURAL GAS

TRANSPORTATION ACT OF 1976

The Prudhoe Bay oilfield contains over 20

trillion cubic feet of natural gas, approximately 10 percent of the known gas reserves

in the United States. It is also in close proximity to similar large gas deposits in the

Mackenzie Delta region of Canada. In March

1974, the Arctic Gas consortium filed applications with the Federal Power Commission

(FPC) and the Canadian National Energy

Board to construct a pipeline to move

Alaskan and Canadian gas to the United

States and Canada by an overland route.52 In

September 1974, El Paso Alaska Company

filed an application with the FPC to transport

Prudhoe Bay gas by a pipeline adjacent to

TAPS to the Gulf of Alaska, liquefy it, and

ship it to California by LNG tanker.53 A hearing began on the competing applications

before the FPC on April 7, 1975. In July 1976,

a third application was filed by Alcan Pipeline Company for an Alaska-Canada overland

route. 54

Faced with the prospect of long administrative and judicial proceedings (the FPC

hearings consisted of 45,000 pages and over

1,000 exhibits), and a protracted process of

accumulating lands for the right-of-way of the

approved pipeline, Congress acted in 1976.

The Alaska Natural Gas Transportation Act

of 1976 (ANGTA) established an expedited

procedure for selecting a transportation system and facilitating its construction and initial operation.55

The steps called for by the Act in selecting

a pipeline applicant have been completed.

The Act suspended the proceedings before

the FPC and took the authority to make a decision away from that agency.56 Instead, the

FPC was directed to review the applications

and make a recommendation to the President

by May 1, 1977.57 This the Commission did,

and recommended the Canadian overland
Ch. 5 Federal Laws Affecting Alaska Lands and Resources ● 133

route, although it divided 2-2 on the choice between Alcan and Arctic Gas.58 The Commission also prepared an EIS to accompany the

recommendation.

The President was required to review the

FPC recommendation and issue a decision

and report to Congress prior to September 1,

1977 or within 90 calendar days if additional

time was needed.59 Before that decision was

issued, the Council on Environmental Quality

was directed to hold hearings on the EIS prepared by the FPC and transmit a report to the

President on the legal and factual sufficiency

of the statement.6O The Presidential decision

could recommend waivers of provisions of

existing laws to permit expeditious construction and operation of the system.61

The President issued a decision on September 22, 1977, selecting the Alcan proposal.62

The Presidential decision could only take effect if approved by a joint resolution of both

Houses of Congress passed within 60 days of

receipt of the decision.63 In addition to affirming the Presidential decision including any

waivers of law, the joint resolution prescribed in the Act contains a congressional

declaration of the sufficiency of the EIS submitted by the President.64 The joint resolution

was approved on November 8, 1977.65

The Act contains limitations on judicial

and administrative review similar to those

found in the Trans-Alaska Pipeline Authorization Act. Claims alleging the invalidity of

the Act must be filed within 60 days of the

enactment of the joint resolution.66 Judicial

review of the actions of Federal officers and

agencies may be had only under the provisions of section 10 of the Act.67 Claims alleging that an action taken pursuant to authority

granted in the Act violated constitutional

rights or were in excess of statutory jurisdiction, authority, or limitations, or did not

satisfy statutory rights must be brought

within 60 days of the challenged action or no

later than 60 days after the complaining party has actual or constructive knowledge of

the action.68 All claims brought under the Act

must be filed in the U.S. Court of Appeals for

the District of Columbia, which is directed to

expedite review of any claims.69 No court has

jurisdiction to consider questions relating to

the environmental impact statements.70

The Act directs Federal officers and agencies to grant or issue certificates, rights-ofway, leases, and permits necessary to or related to the construction or initial operation

of the system at the earliest possible date and

to the fullest extent permitted by the laws administered by the agency71 (without regard to

any provisions of law that were waived) .72 All

actions to which this directive applies are to

be expedited and shall take precedence over

similar applications and requests.73

The Act places some limitations on the conditions that may be included in certificates,

rights-of-way, leases, and permits.74 Officers

and agencies granting such rights shall include terms and conditions required by the

laws they administer (to the extent that such

laws have not been waived), and shall also include provisions identified in the President’s

decision as appropriate for inclusion.75 With

respect to conditions or terms that are permitted by law, but not required, they may be

included unless they “would compel a change

in the basic nature and general route of the

approved transportation system, or would

otherwise prevent or impair in any significant

respect the expeditious construction and initial operation” of the system.76

Finally, the Act provides that any pipeline

system right-of-way over Federal lands is to

be issued under the authority of the Mineral

Leasing Act of 1920 as amended. Thus all

Federal rights-of-way will include a provision

that the managing agency may allow use of

the right-of-way by additional compatible

users.

77

4!-1- flfl.4 ( ) . 7[] . 10
134 ● Analysis of Laws Governing Access Across Federal Lands

FOOTNOTE REFERENCES FOR OTHER LAWS

‘Naval Petroleum Reserves Production Act of 1976,

Public Law 94-258,90 Stat. 303, Apr. 5, 1976,42 U.S.C.

6501 et seq.; The Trans-Alaska Pipeline Act, Public

Law 93-153, 87 Stat. 584, Nov. 16, 1973; The Alaska

Natural Gas Transportation Act of 1976, Public Law

94-586, 90 stat. 2903, C)ct. 22, 1976, 15 U.S.C. 719 et

seq.

‘Naval Petroleum Reserves Production Act of 1976,

Public Law 94-258,90 Stat. 303, Apr. 5, 1976,42 U.S.C.

6501 et seq.

3

The reserves are: Naval Petroleum Reserve No. 1

(Elk Hills) located in Kern County, Calif., established by

Executive Order, Sept. 2, 1912; Naval Petroleum Reserve No, 2 (Buena Vista) located in Kern County, Calif.,

established by Executive Order, Apr. 30, 1915; Naval

Reserve No, 3 (Teapot Dome) located in Wyoming,

established by Executive Order, Apr. 30, 1915; and

Naval Petroleum Reserve No, 4, located in Alaska,

established by Executive Order, Jan. 27, 1923.

4

42 U.S.C. 6502 (redesignation); 42 U.S. C. 6503

(transfer of jurisdiction).

5

42 U.S.C. 6502. The tract on which the Naval Arctic

Research Laboratory is located is tract No. 1 as

described in Public Land Order 2344, Apr. 24, 1961, 26

F.R, 3701.

“42 U.S.C. 6502.

7

42 U.S.C. 6504(b).

8

42 U.S.C. 6504(b). “Any exploration within the

Utokok River, the Teshekpuk Lake areas, and other

areas designated by the Secretary of the Interior containing any significant subsistence, recreational, fish

and wildlife, or historical or scenic value shall be conducted in a manner which will assure the maximum

protection of such surface values to the extent consistent with the requirements of this Act for the exploration of the reserve. ”

’42 U.S. C. 6503(b).

‘OS. Rept. 94-708 (Conference Report) at p. 15, The

Secretary of the Interior has assigned interim management responsibility for NPRA to the Assistant Secretary for Land and Water Resources. Statement of

Hon. James Joseph, Undersecretary of the Interior in

Hearings on Alaska Natural Resource Issues Before the

Senate Comm. on Energy and Natural Resources, 95th

Cong., 1st sess. (Pub. No. 95-64, 1977) at 102 (hereinafter, Alaska Natural Resource Issues), Regulations

governing NPRA are found at 43 C.F.R. 2360 (1977) and

42 F,R, 28721, June 3, 1977,

1142 U.S. C. 6504(a). Provision for the continued

operation of the South Barrow gasfield is at 42 U.S.C.

6504(e).

‘

z

Public Law 94-258, section 105, 90 Stat. 305, 42

U.S.C. 6505,

’

3

42 U.S.C. 6244.

1442 U.S.C. 6505.

I’Id.

Wublic Law 94-258, section 105(c), 90 Stat. 306, 42

U.S.C. 6505: “(l) The Secretary of the Interior shall

establish a task force to conduct a study to determine

the values of, and best uses for, the lands contained in

the reserve, taking into consideration (A) the natives

who live or depend upon such lands, (B) the scenic,

historical, recreational, fish and wildlife, and wilderness values, (C) mineral potential, and (D) other values

of such lands. (z) Such task force shall be composed of

representatives from the government of Alaska, the

Arctic Slope Native community, and such offices and

bureaus of the Department of the Interior as the

Secretary of the Interior deems appropriate, including,

but not limited to, the Bureau of Land Management, the

United States Fish and Wildlife Service, the United

States Geological Survey, and the Bureau of Mines. (3)

The Secretary of the Interior shall submit a report,

together with the concurring or dissenting views, if

any, of any non-Federal representatives of the task

force, of the results of such study to the Committees on

Interior and Insular Affairs of the Senate and House of

Representatives within 3 years after the date of enactment of this title and shall include in such report his

recommendations with respect to the value, best use,

and appropriate designation of the lands referred to in

paragraph (l), ”

1742 U.S.C. 6502.

1aId,

‘gSee 43 CFR 2361.2 (1977), See also 43 CFR 2800.

2043 U.S.C, 1601,

‘lExecutive Office of the President, Energy Policy and

Planning, Decision and Report to the Congress on the

Alaska Natural Gas Transportation System, Sept. 22,

1977 (hereinafter “Decision”), pi.

ZZHanrahan and Gruenstein, Lost Frontier: the ~Qrketing of AJaska, 125 (1977).

Z’Id.

zqThe three companies were the Atlantic Richfield

Company, Humble Oil and Refining Company (now

EXXON Corporation), and British Petroleum Ltd. They

filed an application with the Department of the Interior

on June 6, 1969. After the lease sale, the following companies became partners in TAPS: Standard Oil of Ohio,

Phillips Petroleum, Union Oil and Amerada Hess. TAPS

formally incorporated as the Alyeska Pipeline Service

Company, Inc.

Zssee generally, Mary Clay Berry, The Alaska ~“peline; The Politics of Oil and Native Land Claims, 102 to

123 (1975). The land freeze was imposed in 1966 by

Secretary of the Interior Stewart Udall and formalized

by Public Land Order 4582, 34 F.R. 1025, Jan, 17, 1969,

The new Secretary of the Interior, Walter Hickel,

agreed to honor the freeze for 2 years in order to allow

congressional action on the Native claims issue.

However, under pressure from the oil companies and

the State of Alaska, Secretary Hickel set up a task force
Ch. 5 Federal Laws Affecting Alaska Lands and Resources ● 135

to expedite planning and approval of the TAPS request

and successfully negotiated with House and Senate

Committees to obtain their consent to the TAPS waiver.

‘fiSee Public Land Order 4760, 35 F.R. 424, Jan, 7,

1970. See also Berry, supra, note 25 at 116 to 118.

27These villages are Stevens, Rampart, Bettles, Minto, and Huslia-Hughes. The village chiefs had earlier

negotiated with the pipeline consortium for a waiver of

Native objections to the pipeline route based on land

claims in exchange for an understanding by TAPS to

contract with Native-owned firms and firms willing to

employ Natives. When TAPS announced some of its

contract awards in January 1970 that did not include

Native firms, the Natives sued. See Bryan Cooper,

Alaska-The Last Frontier, at 203 to 205 (1973). See

also Berry, supra note 25 at 116-120. The five villages

brought suit in Federal District Court in Washington,

D. C,, to enjoin the Department of the Interior from approving the pipeline right-of-way. Four of the five actions were dismissed. But in March 1970, a restraining

order was issued on behalf of Stevens Village temporarily barring the issuance of a right-of-way for 20

miles covered by village claims located near the

planned Yukon River pipeline crossing. In Native

Village of Allakaket v. I-Iicke], Civ. No. 706-70 (D. D. C.,

Oct. 18, 1972), the District Court enjoined construction

of the pipeline across Native lands.

28 Wilderness Society v. Hicke], Civ. A. No. 928-70;

The plaintiffs were the Wilderness Society, the Environmental Defense Fund, and Friends of the Earth.

‘gWi]derness Society v. Hicke], 325 F. SUPP. 422

(D.D.C. 1970).

3

0ANSCA extinguished all Native land claims based

upon aboriginal title or use, 43 U.S. C. 1703, and provided that there could be no State or Native land selections along any utility and transportation corridor

withdrawn for the pipeline, 43 U.S.C. 1716(c).

slwi]derness society v, Morton, 3 ELR 20583, 4 ERC

1101. In order to expedite appeals, there was never a

reported decision accompanying the order lifting the injunction.

32 Wilderness Society v. Morton, 479 F. 2d 842 (D.C.

Cir. 1973).

33411 Us. 917 (1973).

sqAn Act t. Amend Sec. 28 of the Mineral Leasing Act

of 1920 and to Authorize a Trans-Alaska Oil Pipeline

and for other purposes, Public Law 93-153, 87 Stat.

576, NOV. 16, 1973.

s~~blic Law 93-153, section 101, 87 Stat. 576, 30

U.S.C. 185. Section 28(d) of the Mineral Leasing Act of

1920, 30 U.S.C. 185(d), as amended by Public Law

93-153, section 101,87 Stat. 576.

3%ection 28(d) of the Mineral Leasing Act of 1920, 30

U.S.C, 185(d), as amended by Public Law 93-153, section 101,87 Stat. 577 (1973].

3730 U.S.C. 185(a), as amended by Public Law 93-153,

section 101, 87 Stat. 576 (1973). See also 30 U.S.C.

185(b)(l), as amended, 87 Stat. 577 (1973).

3a30 U,S.C. 185(b)(l), as amended, 87 Stat. 577 (1973).

Sg30 U.soc. 185(h)(2), as amended, 87 Stat. 578 (1973)+

4030 U.S.C. 185(j), as amended, 87 Stat. 579 (1973).

4’30 U.S.C, 185(P), as amended, 87 Stat. 580 (1973).

4230 U.S.C. 185(s), as amended, 87 Stat. 582 (1973).

The report called for by this section was submitted to

the Congress on July 1, 1975. Department of the Interior, Bureau of Land Management, The Need for a National System of Transportation and Utility Corridors.

43Section 201, Public Law 93-153.87 Stat. 584 (1973).

4443 u.S, C, 1652(d).

‘sId.

4’43 U.S,C, 1653(a)(l) establishes strict liability for incidents involving the pipeline. 43 U.S.C. 1653(c)(1) establishes strict liability for oilspills from vessels loaded

with oil transported through the pipeline. 43 U.S.C.

1653(c)(2) imposes strict liability for oil pipeline incidents.

47 See 43 U.S.C. 1653(a)(2) and 43 U.S.C. 1653(c)(2).

’43 U.S. C. 1653(c)(4) establishes the fund; 43 U.S. C.

1653(c)(5) levies the 5 cents per barrel tax.

4

’43 U.S,C. 1655.

sOThe State of Alaska received Federal aid for the

construction of the haul road with the understanding

that the road would become part of the State highway

system. If the haul road is not opened to public use,

Alaska might have to repay some $24 million for construction of the Yukon River bridge, $1.5 million for

construction surveillance, and $2.8 million worth of

gravel from Federal lands. Gov. Jay S. Hammond, North

Slope Haul Road Policy Statement and Background,

September 1976.

5

1 Section 407, Public Law 93-153, 87 Stat. 591, 43

U.s.c. 1608.

52FPC Docket No. CP 74-239.

NFpC Docket No. CP 75-96.

54The Alcan application was filed after FPC administrative proceedings had commenced on the other

two applications in FPC Docket No. 75-96 et al. The

decision by Administrative Law Judge Nahum Litt was

issued on Feb. 1, 1977.

Sspublic Law 94-586, 90 Stat. 2903, Oct. 22, 1976, 15

U.S,C. 719 et seq.

5615 U.S. C, 719C(all).

5715 U.SOC. 719c(b)(l).

58 Federal Power Commission, Recommendation to the

President: Alaska Natural Gas Transportation System,

May 2, 1977.

5915 U.S.C. 719e(a).

8015 U.S.C. 719d(d). Council on Environmental Quality, Report, July 1, 1977. Another report was prepared

by an Interagency Task Force under the lead of the

Department of the Interior.

C115 U.S.C. 719e(ax4)(D).

‘executive Office of the President, Energy Policy and

Planning. Decision and Report to Congress on the

Alaska Natural Gas Transportation System, Sept. 22,

1977.

’

3

15 U.S.C. 719 f(a).

“15 U.S.C. 719 f(d)(2).

‘

5 Public Law 95-158, Nov. 8, 1977. For background on

the Alaska National Gas Pipeline decision, see S. Rept.
136 ● Analysis of Laws Governing Access Across Federal Lands

95-567, 95th Cong., 1st sess. (1977). Many of the reports

called for in Public Law 94-586 are reprinted in Senate

Comm. on Energy and Natural Resources, Decision and

Report to Congress on the Alaska Natural Gas

Transportation System, 95th Cong., 1st sess. (Comm.

Print 95-56, 1977).

’

8

15 U,S.C. 719h(b)(l).

6715 U.S. C. 719h(a).

’815 U.S,C. 719h(b)(2),

6915 U,S.C. 719h(c)(l).

7015 U.S.C. 719h(c)(3).

7115 U.S.C. 719g(aXl).

7215 U.S.C. 719g(a~2).

7315 U.S.C. 719g(b)e

7’15 U.s.c, 719g(c).

’515 U.S.C. 719g(c), 15 U.S. C. 71%Ke).

7’15 U.S,C. 719g(c), 15 U,S.C, 719g(d).

7730 U.S.C. 185(p).
6

Federal Land Planning and

Environmental Laws
—

Chapter 6.-FEDERAL LAND PLANNING

AND ENVIRONMENTAL LAWS

Page

National Environmental Policy Ac t

of 1969• . ● . ● ● . ● ● , ● . . ● . ● ● ● . .. .139

Broad Policy Goals of NEPA . . . . . . 139

Mandatory Agency Action . . . . . . . 140

The Council on Environmental

Quality. . . . . . . . . . . . . . . . . . . . . 141

When an EIS Is Required. . . . . . . . . 141

When an EIS Must Be Prepared . . . 142

Public Participation. . . . . . . . . . . . . 144

NEPA and Judicial Review. . . . . . . . 145

Footnote References for National

Environmental Policy Act of 1969. . 150

Section 4(f) of the Department of

Transportation Act of 1966. . . . . . . 153

Transportation Projects Covered by

Section. . . . . . . . . . . . . . . . . . 154

Protected Lands. . . . . . . . . . . . . , . . 155

Overton Park. . . . . . . . . . . . . . . . . . 156

The 4(f) Statement. . . . . . . . . . . . , . 157

Footnote References for Section 4(f) . 159

Endangered Species Act of 1973 . . . . 160

Endangered Species . . . . . . . . . . . . 160

Prohibited Acts . . . . . . . . . . . . . . . . 160

Footnote References for Endangered

Species Act of 1973 . . . . . . . . . . . 163

Clean Air Act.... . . . . . . . . . . . . . . . . 165

Implementation of the Clean Air Act

and the 1977 Amendments . . . . . 166

Regulation Under the Clean Air Act 167

National Air Quality Standards . . . 168

State Implementation Plans . . . . . . 169

Preconstruction Review of Major New

Stationary Sources . . . . . . . . . . . . . 170

Prevention of Significant

Deterioration . . . . . . . . . . . . . . . . 173

Duties of the Federal Land

Manager. . . . . . . . . . . . . . . . . . . . 176

Footnote References for Clean Air

Act ● *s** . *********s********** 177

Glean Water Act . . . . . . . . . . . . . . . . . 182

Federal Water Pollution Control

Act . . . . . . . . . . . . . . . . . . . . . . . . 182

Permit System ... , . . . . . . . . . . . . . 184

Page

Effluent Limitations. . . . . . . . . . . . . 188

Municipal Point Sources . . . . . . . . . 191

Footnote References for Clean Water

Act ● 195

Coastal Zone Management Act...... 198

The Coastal Zone . . . . . . . . . . . . . . . 198

Statutory Requirements for the Plan 199

Developing the Plan. . . . . . . . . . . . . 200

Approving the Plan . . . . . . . . . . . ., 202

Federal-State Relationships Under

CZMA . *.,**,,**,....,...*** 203

National Interest Considerations . . 205

Overview: Mineral Access and

Coastal Zone Management . . . . . 205

Footnote References for Coastal Zone

Management Act ● ● ● ● ● ● ● ● ● s ● ● ● ● ● 206

TABLES

Page

5. Time Required for Draft EIS

Preparation, Fiscal Year 1975 . . . . 148

6. National Environmental Policy Act

Litigation ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● s ● ● ● ● 148

7. Injunctive Delays of Federal

Actions Under the National Environmental Policy Act (NEPA). . . . . . 149

8. Projects Canceled as a Result of

National Environmental Policy Act

(NEPA) Injunctions. . . . . . . . . . . . . . 149

FIGURES

Page

6. Time Required to Get Environmental Permits if Proponent Owns

the Site and No Federal Rights-ofWay Are Involved ● ● ● ● ● ● ● ● ● ● ● . ● 147

7. Time Required to Get Environmental Permits if Federal Lands

Are Involved ● ● ● ● ● ● ● ● ● ● ● ● ● ● , ● , ● ● 147
6

Federal Land Planning and

Environmental Laws

NATIONAL ENVIRONMENTAL POLICY ACT OF 1969

The passage of the National Environmental

Policy Act of 19691 (NEPA) marked the beginning of a new era of increased Federal concern for environmental quality. The Act set

forth general Federal environmental policy

goals, made environmental quality the concern of all Federal agencies, and by instituting certain “action-forcing mechanisms, ”

fundamentally altered the Federal decisionmaking process. The most important actionforcing mechanism is the requirement that an

environmental impact statement (EIS) be prepared for “major Federal actions significantly affecting the quality of the human environment.

Unlike environmental laws such as the

Clean Air Act, NEPA does not establish any

specific Federal environmental standards.3 It

does require Federal departments and agencies in implementing their policies and programs to use all practical means to improve

and coordinate agency plans, functions, programs, and resources in order to protect and

preserve the environment. While NEPA imposes no direct specific restraints on access

to non-Federal minerals, it nevertheless has a

substantial indirect influence, since Federal

land management agencies must comply with

NEPA in the administration of all program reNote: Footnotes for this section appear on pp. 150-152.

sponsibilities. The agencies have developed

administrative procedures for the consideration of applications for rights-of-way and

other permits for the use of Federal lands

that involve a thorough environmental impact

review process. Land management agency

regulations provide that applicants for rightsof-way and other permits may be required to

pay the costs of preparing an EIS.4

There are three major components to the

Act: the declaration of broad national policy

goals; the enumeration of specific actions to

be implemented by Federal agencies; and the

establishment of the Council on Environmental Quality (CEQ) in the Executive Office of

the President, to coordinate agency implementations and to formulate and recommend

national environmental policy.

BROAD POLICY GOALS OF NEPA

Section 101(a) of NEPA provides “that it is

the continuing policy of the Federal Government, in cooperation with State and local governments, and other concerned public and

private organizations . . . to create and maintain conditions under which man and nature

can exist in productive harmony, and fulfill

the social, economic, and other requirements

of present and future generations of Amer139
140 ● Analysis of Laws Governing Access Across Federal Lands

icans.” 5This broad policy is to be carried out

as “the continuing responsibility of the

Federal Government” through means “consistent with other essential consideration of

national policy.”6

This policy was further

modified by the express statement that the

“goals and policies” set forth in NEPA “are

supplementary to those set forth in existing

authorizations of Federal agencies.”7 Within

these constraints, agencies are to use all

practicable means so that the Nation can:8

1. Fulfill the responsibilities of each gener2,

3.

4.

5.

6.

ation as trustee of the environment for

succeeding generations;

Assure for all Americans safe, healthful,

productive, and esthetically and culturally pleasing surroundings;

Attain the widest range of beneficial

uses of the environment without degradation, risk to health or safety, or other

undesirable and unintended consequences;

Preserve important historic, cultural,

and natural aspects of our national heritage, and maintain, wherever possible,

an environment which supports diversity and variety of individual choice;

Achieve a balance between population

and resource use which will permit high

standards of living and a wide sharing of

life’s amenities; and

Enhance the quality of renewable resources and approach the maximum attainable recycling of depletable resources.

MANDATORY AGENCY ACTION

To further the broad environmental policy

established in NEPA, Congress directed that,

“to the fullest extent possible the policies,

regulations, and public laws of the United

States shall be interpreted and administered

in accordance with the policies set forth in

this Act.”9 Congress also mandated that all

Federal agencies utilize a review process that

assures consideration of environmental values in their policy planning and decisionmaking. 10 The EIS was established as part of the

basic decisionmaking apparatus of the Federal departments and agencies. While accomplishment of the broad environmental policies

and goals proclaimed in NEPA is secondary to

other agency program authorities and responsibilities, the requirements of the EIS

process are direct and mandatory.

All Federal agencies in the conduct of their

functions, programs, planning, and policies

are required by NEPA to:

a.

b.

c.

d.

e.

Utilize a “systematic interdisciplinary

approach” integrating natural and social sciences and environmental design

arts in planning and decisionmaking.11

Develop means of ensuring that presently unquantified environmental

amenities and values will be given appropriate consideration in decisionmaking along with economic and technical considerations. 12

Include a detailed EIS in “every recommendation or report on proposals for

legislation and other major Federal actions significantly affecting the quality

of the human environment. ” When preparing an EIS, the responsible agency

must consult with other Federal agencies and solicit and include views of

those agencies as well as State and

local agencies, The statement must be

made available to the President, to

CEQ, and to the public and it must accompany the proposal through the existing agency review process .13

Study and describe “appropriate alternatives to recommended courses of action” for any proposal that involves

unresolved conflicts concerning alternative uses of available resources.14

Lend support to programs designed to

maximize international cooperation in

anticipating and preventing a decline

in the quality of mankinds’ world en-
Ch. 6 Federal Land Planning and Environmental Laws ● 141

f.

g.

h.

vironment, where consistent with U.S.

foreign policy .15

Make available to State and local

governments and the public, information and advice useful in restoring,

maintaining, and enhancing environmental quality .16

Initiate and utilize ecological information in planning and developing resource-oriented projects .17

Assist CEQ.18

NEPA requires Federal agencies to consider environmental factors, along with traditional technical and economic factors, in the

planning process. Case-by-case analysis of

proposed agency actions ensures that environmental consequences are considered

before action is taken.

The action-forcing mechanisms impose

operational duties that compel agencies to

consider and implement the general purposes

of the Act. By requiring that agencies prepare a detailed environmental statement,

conduct systematic and interdisciplinary review, and consult with other agencies and

seek public comment on proposed actions,

these action-forcing mechanisms have

changed the charnels and processes of administrative planning, decision, and review.

They open the decisionmaking process to the

full spectrum of agencies and individuals that

might be affected by the proposed actions.

Public participation ensures that all issues

and competing considerations are aired and

balanced.

THE COUNCIL ON

ENVIRONMENTAL QUALITY

The Council on Environmental Quality was

established within the Executive Office of the

President by Title II of NEPA.19 The CEQ is

composed of three members appointed by the

President with Senate approval. It serves as a

resource, research, and advisory body to the

President on environmental matters. The Office of Environmental Quality in the Executive

Office of the President was established by the

Environmental Quality Act of 197020 to provide professional and administrative support

for the CEQ.

Under an executive order,21 the President

has assigned CEQ the responsibility to issue

guidelines for the preparation of environmental statements required by section 102(2)(c) of

NEPA.22

These CEQ guidelines are implemented by

the specific guidelines and regulations pertaining to compliance with NEPA that have

been adopted by individual Federal agencies.

The courts have held that “because CEQ does

not have the statutory authority to prescribe

regulations governing compliance with

NEPA, CEQ guidelines are merely advisory.” 23 The standard for judicial review of

whether agency actions satisfy NEPA requirements is whether the actions comply

with the agency’s own regulations and the requirements of section 102(2)(c).

WHEN AN EIS IS REQUIRED

The preparation of an EIS is only required

for a Federal action that the agency determines is “a major Federal action significantly

affecting the human environment.” 24 T h e

identification of major actions that significantly affect the quality of the human environment is the responsibility of each Federal

agency and is to be carried out against the

background of its own particular operations.

NEPA requires a case-by-case determination of whether a given agency action requires preparation of an EIS. The initial inquiry must ascertain whether the proposed

action is a “major Federal action significantly affecting the human environment. ” If so,

the impact assessment process is begun. This

involves consideration of the environmental

consequences of the proposed action. The

words “major” and “significantly” are intended to imply a degree of importance and

impact that must be met before a statement is

required .25
—

142 ● Analysis of Laws Governing Access Across Federal Lands

“Major Federal actions” include not only

actions directly undertaken by Federal agencies, but also Federal decisions to approve,

fund, or license activities that will be carried

out by others. CEQ guidelines provide that

Federal “actions” include but are not limited

to:

1. Recommendations or reports relating to

or leading to legislation and appropriations;

2. Projects and continuing activities

—Directly undertaken by Federal agencies; or

—Supported in whole or in part through

Federal contracts, grants, subsidies,

loans, or other forms of funding assistance; or

—Involving a Federal lease, permit, license, certificate, or other entitlement

for use; and

3. The making, modification, or establishment of regulations, rules, procedure,

and policy .26

There must be sufficient Federal control

and responsibility over the action that causes

the impact for it to constitute a Federal action. Such Federal control and responsibility

are not present in cases such as the distribution of general revenue-sharing funds to

States and localities.27 In determining whether or not an EIS is required, CEQ guidelines

direct agencies to view the cumulative impacts of the proposed action and of further

actions contemplated. The guidelines advise

that an EIS be prepared in all instances

where a “cumulatively significant” impact on

the environment may reasonably be expected

from the Federal action, or where the proposed action is expected to generate “highly

controversial” environmental impacts.28

Finally, the action must be one that significantly affects the quality of the human environment either by directly affecting human

beings or by indirectly affecting them through

adverse effects on the environment. Such

adverse significant effects include those that

degrade the quality of the environment, curtail the range of its beneficial uses, and serve

short-term environmental goals to the disadvantage of long-term ones.29

There has been extensive litigation on the

question of whether particular actions are

major actions that significantly affect the

human environment. It is difficult to specify

which actions will invoke the application of

NEPA. The courts have generally interpreted

the term “major action,” liberally .30

As originally written, NEPA applied to all

Federal agencies. However, Congress and the

courts have established a number of exceptions to this mandate. Congress has exempted

the Environmental Protection Agency (EPA)

from the requirements of NEPA when it is

taking action under the Clean Air Act,31 and

when it is issuing pollution discharge permits

(except those for new sources) under the

Federal Water Pollution Control Act Amendments of 1972.32 The courts have ruled that

EPA was not required to prepare a NEPA

statement for an action under the Federal Insecticide, Fungicide, and Rodenticide Act33

where the procedures the agency followed

were the functional equivalent of the NEPA

process.

34 EPA has generally contended that

it is exempt from NEPA on the grounds that

the Act is aimed at development agencies and

not at environmental protection agencies .35

WHEN AN EIS MUST BE PREPARED

The courts have frequently addressed the

question of when, during the decisionmaking

process, an EIS must be prepared. The decisions have generally held that the EIS must be

prepared at the earliest practical point in

time. 36 One court stated that, ideally, an EIS

should be prepared late enough in the development process to contain meaningful information, but early enough so that this information can practically serve as an input in

the decisionmaking process.37 Early preparation is deemed essential to assure that the

comprehensive review and objective analysis

intended by the Act will be responsibly carried out. If preparation of the EIS were al-
Ch. 6 Federal Land Planning and Environmental Laws ● 143

lowed to take place after planning was well

underway, desirable alternatives might already be foreclosed, a fully objective analysis

would not be possible, and opportunities to

make alterations that minimize environmental costs would be lost.

The draft EIS is the vehicle by which the requirement for early public notice is met. The

CEQ guidelines state the necessity for the

earliest possible preparation:

Agencies should keep in mind that such

statements are to serve as the means of

assessing the environmental impact of proposed agency action, rather than as a justification for decisions already made. This

means that draft statements on administrative actions should be prepared and circulated for comment prior to the first significant point of decision in the agency

review process.38

But preparation of the draft is not the first

step in the environmental review process.

Under the present system, an agency first

makes an assessment of a proposed action to

determine whether or not an EIS is required.

If an agency decides that an EIS is required,

it often publishes a notice of its intent to

prepare one in the Federal Register. If more

than one agency is directly involved in the

proposed action, the agencies may select a

“lead agency” to assume supervisory responsibility in the preparation of the EIS. If an

agency decides that a proposed action is not a

major action that will have sufficient significant impact on the quality of the human environment to require the processing of an EIS,

it would issue a “negative declaration.”39

Negative declarations are generally not issued as formal documents or published in the

Federal Register.

The agency then prepares a draft EIS on

the proposed action. The draft statement

must fulfill and satisfy, to the fullest extent

possible, the requirements of a final EIS as

set out in section 102(2)(c), as well as the

agency’s own regulations on the preparation

of an EIS. CEQ guidelines provide that a draft

EIS should contain a “detailed” description

of:40

1.

2.

3.

4.

5.

6.

7.

8.

The proposed action, its purposes, and a

description of the affected environment;

The probable environmental impacts of

the proposed action including positive

and negative, primary and secondary,

and direct and indirect consequences of

the action;

Any probable unavoidable adverse environmental effects from the implementation of the proposal;

Possible alternatives to the proposed action, including the abandonment or postponement of the proposal, as well as any

possible alternatives that may be within

the jurisdiction of another agency; and

an evaluation of the benefits and environmental impacts of each alternative;

The relationship between local shortterm uses of the environment and enhancement of long-term productivity including an analysis of any tradeoffs and

losses associated with the proposed action, and also the extent to which further

alternative uses may be foreclosed.

(Both short- and long-term uses must be

considered in assessing the environmentally significant consequences of a proposed action.);

Any irreversible and irretrievable commitments of resources that would be involved in implementation, and the extent

to which the proposal curtails the range

of potential uses of the environment;

The relationship of the proposed action

to Federal, State, or local land use plans,

policies, and controls for the affected

area (such as those prepared under the

Clean Air Act, Clean Water Act, or Federal land management laws), and a

statement of how the agency has reconciled any conflict with such plans, or the

reasons for proceeding with the proposed action despite the conflict; and

Other Federal policy interests and considerations that offset or mitigate the

adverse environmental consequences of

the proposed action.
144 ● Analysis of Laws Governing Access Across Federal Lands

Each EIS should be prepared in accordance with the statutory directive that

agencies “utilize a systematic, interdisciplinary approach which will insure the integrated use of natural and social sciences and

environmental design arts in planning any

decision which may have an impact on man’s

environment."41

PUBLIC PARTICIPATION

The EIS is a public disclosure document.

As such, it is intended to provide a full and

candid presentation of the environmental factors along with other pertinent information

on proposed Federal actions. The EIS is a tool

to aid in the decision process. It acts to ensure that the environmental consequences

and all possible alternative approaches to a

particular project, including its abandonment, are considered before action is taken.

An EIS must be presented clearly enough to

be understood by an informed layman, yet it

must contain sufficiently detailed data to provide technical information for interpretation

by specialists.

By compelling a formal, detailed statement

of the anticipated environmental impacts and

a description of alternatives, NEPA provides

evidence that the mandated decisionmaking

process has, in fact, taken place; and, most

importantly, allows those removed from the

initial process to evaluate and balance the

factors on their own.42

Federal agencies must take full responsibility for the preparation of an EIS. They

cannot simply accept documentation from an

applicant for a permit, license, grant, or

other Federal aid. Statements and environmental information submitted by applicants

must be independently evaluated. The responsibility for the impact evaluation, scope,

and content of the draft and final statements

rests with the agency. Public Law 94-8343

amended NEPA to provide that if certain conditions are satisfied, an agency may delegate

EIS preparation to a State agency or to an official for a major Federal action funded

under a program of grants to States (primarily Federal-aid highways). There must be a

specified level of Federal participation and

guidance in the impact assessment process,

an independent evaluation of the EIS prior to

approval and adoption by the agency, notification of any other States or Federal land

management entities that could be affected

by the proposed action or alternative, and a

written statement of any disagreements

about the impacts described in the EIS. The

chief effects of the amendment are to validate

the policy of the Federal Highway Administration that requires States to prepare

EISs for Federal-aid highway projects, and to

overturn Federal court decisions that Stateprepared EISs were legally insufficient under

NEPA.

Once a draft statement is prepared, it is

circulated for review and comment from the

public and from those Federal, State, and

local agencies that have expertise or jurisdiction relevant to the action under consideration.44 A period of 90 days is usually allowed

for comment. Notice of the availability of the

draft EIS is published in the Federal Register

and may also appear in local newspapers. A

public hearing may be held on a draft EIS, but

this usually occurs only when a hearing on

the proposed action is required under other

statutes or existing agency procedures.

By requiring an agency to seek out the

views of appropriate Federal, State, and local

officials and of the public, NEPA opens the

decisionmaking process to those who may be

affected by the action. This ensures that

issues, competing considerations, and environmental consequences, which might otherwise be overlooked or ignored by agency officials, will be aired and given due consideration. Public comment on a draft EIS not only

must be sought out but also must be weighed

by the agency in preparing the final version

of the EIS. The final EIS must be responsive to

the issues and questions raised by Government agencies and the public.

One case interpreting this requirement

held that:
Ch. 6 Federal Land Planning and Environmental Laws ● 745

. . . officials must give more than cursory

consideration to the suggestions and comments of the public in the preparation of the

final impact statement. The proper response

to comments which are both relevant and

reasonable is to either conduct the research

necessary to provide satisfactory answers,

or to refer to those places in the impact statement which provide them. If the final impact

statement fails substantially to do so, it will

not meet the statutory requirements.45

After a complete consideration of all comments and any additional information received, the agency then prepares a final EIS.

This accompanies the proposal for action

through the decisionmaking process, which

varies enormously from agency to agency.

The final EIS contains, in addition to the required sections described in the discussion of

the draft EIS, a description of coordination

with other agencies, responses to issues and

questions raised in the draft review process,

and identification of any unresolved issues .46

NEPA AND JUDICIAL REVIEW

Agency compliance with the requirements

established by NEPA is subject to judicial

scrutiny. Although the Act does not contain a

provision specifically authorizing judicial

review or enumerating judicial remedies, the

courts have uniformly held that injunctive

relief will be granted to plaintiffs who demonstrate that the requirements of the Act

have not been met. A leading case states:47

Injunction is the vehicle through which the

congressional policy behind this chapter can

be effectuated, and a violation of this section

in itself may constitute a sufficient demonstration of irreparable harm to entitle a

plaintiff to blanket injunctive relief.

In addition, defects in the environmental impact process may be used as the basis for a

challenge to agency action—implementation

of the proposal discussed in the EIS—under

the Administrative Procedure Act.48 That Act

provides authority to set aside any agency action that is arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance

with the law.

The Scope of Review

The mere preparation of a document discussing environmental impacts is not sufficient to render agency action immune to

judicial review. The courts will look both at

the contents of the document and at the use to

which it is put. In Calvert Cliffs’ Coordinating

Committee, Inc. v. AEC, the court of appeals

rejected the notion that the preparation of a

document which accompanied agency files

through the decisionmaking process, but

which was in no way used in that process,

would be sufficient .49

In the Gillham Dam case,50 it was held that

“at the very least, NEPA is an environmental

full-disclosure law. ” On appeal, the Eighth

Circuit found it “clear that the Act is more

than an environmental full-disclosure law,”

and that it was “intended to effect substantive changes in decisionmaking.”51

There has been considerable litigation concerning the compliance with the procedural

requirements that section 102 places on agencies. Almost without exception, the courts

have held that agencies are required to make

the fullest effort possible to comply with section 102 in every detail. The definition of “major Federal action” is expansive.52 Agencies

have been required to begin preparation of

the statement early in the decisionmaking

process.

53 Responsibility for preparation and

review is placed squarely on the Federal

agency, not on other interested parties.54 Extensive discussion of the environmental

costs, 55 the environmental impacts,56 and the

possible alternatives has been required.57

The development of case law relating to the

substantive review of statements, or agency

actions based on statements, has been less

complete. The term substantive review has

two differing, but closely related, meanings in

NEPA cases. It can refer to the action of a

court in assessing, on its own, the validity of

an EIS and the conclusions contained therein.

It can also refer to judicial review based on
146 ● Analysis of Laws Governing Access Across Federal Lands

the premise that NEPA, particularly section

101, imposes substantive requirements on an

agency that go beyond the procedural requirements of section 102. In practice the two

have gone together.

In Calvert Cliffs’, the court indicated a willingness to reverse an agency decision involving a procedurally correct EIS if it could be

shown that “the actual balance of costs and

benefits struck was arbitrary or clearly gave

insufficient weight to environmental factors.” 58 In another early NEPA case, the impact statement was held inadequate because

it consisted “almost entirely of unsupported

conclusions.” 59 However, diametrically opposite views have also been indicated by

some courts:60

Judicial review of the final environmental

statement was limited to whether all five procedural requirements of this section [section

102] were met, whether it constituted obvious good faith compliance with the demands of this section, and whether it contained a reasonable discussion of the subject

matter involved in the five required areas.

While there has been no final disposition of

this conflict by the Supreme Court, five circuit courts of appeals61 have adopted a midway position. They found that section 101 of

NEPA does impose substantive requirements

on an agency and allows judicial review of

whether those substantive requirements have

been met. However, that review is limited to

the traditional standards of determining

whether the administrative action was “arbitrary, capricious, or an abuse of discretion. ”

This position has been expressed as follows:

In determining whether the substantive requirement of this section has been met, the

reviewing court must first determine

whether the agency acted within the scope of

its authority, and next whether the decision

reached was arbitrary, capricious, or otherwise not in accordance with law; in making

the latter determination, the court must decide if the agency failed to consider all relevant factors in reaching its decision or if the

decision itself represented a clear error of

judgment.62

Another court described the judicial function in these words:

The court’s role under this section is not

only to see that agencies have complied with

all procedural requirements but also to

engage in substantial inquiry to determine

whether there has been a clear error of judgment; courts may delve into a decisionmaking

process to determine if the decision was arbitrary and capricious when viewed in terms

of the data and information supplied and set

forth in the environmental impact statement.63

These decisions indicate that NEPA is to be

more than an exercise in collecting information. Final agency decisions cannot be made

in disregard of the information that is contained or should be contained in the impact

statement.

Judicial Review and Delay

The EIS process and judicial review of

agency compliance with NEPA have been

cited as causing substantial delays in the

Federal approval of mining-related applications, such as securing a right-of-way over

Federal lands. It is claimed that the time

spent in complying with NEPA adds to the

cost of mining operations.

One industry spokesman64 has estimated

that the time involved in obtaining all environmental permits, where no Federal rightof-way is sought, is 60 to 90 days, at a minimum (figure 6). If a right-of-way across

Federal lands is involved, he estimated that

36 to 44 months are required (figure 7).65

These figures do not include any estimate of

the time involved if the matter is subject to

judicial review.

In 1976, CEQ published an analysis of

Federal agency experience under NEPA.66

CEQ surveyed 70 Federal agencies to determine the amount of time they took to prepare

an EIS and the extent of NEPA litigation. (For

Federal land management agencies, the results are shown in tables 5 and 6.)

The CEQ report observed:67

There are three points in the EIS process

when delays can occur—in preparing the
Ch. 6 Federal Land Planning and Environmental Laws ● 147

Figure 6.—Time Required to Get Environmental Permits if Proponent Owns the Site and

No Federal Rights-of-Way Are Involved

I Proponent makes application I 4

s ?

Environmental State

Protection Agencya or agencies 60 to 90 daysb

[

Permit to construct is granted

~he Environmental Protection Agency may decide to write an environmental impact statement.

~ime span maybe longer if proponent’s application is incomplete.

SOURCE: William R. Tipton, “Environmental Considerations in Project Management,” Figure 1, Jourr?a/ ot Mefa/s, May 1977, p. 18.

Figure 7.—Time Required to Get Environmental Permits if Federal Lands Are Involved

2 to 3 months * Attempt to get “negative declaration”

I

# 4 18 months

Write environmental impact assessment

Get lead agency named

Get lead agency to pick EIS team i

10 months

Complete draft EIS

E

2 to 6, months

36

to

44

months

1 3to6“months

I Publish final EIS and file with CEQ t

E

i

1 month

CEQ approves or disapproves final EIS

I

no time limit

Cabinet official makes “go” or “no go” f

I

decision for proponent’s project

SOURCE: William R. Tipton, “Environmental Considerations in Project Management,” Figure 2, Journal of Metals, May 1977, p. 19.
148 c Analysis of Laws Governing Access Across Federal Lands

draft, in preparing the final after comments

are in, and after issuance of the final. The

time required to prepare a draft EIS differs

from agency to agency and from project to

project. The scope of a project, the experience of the people preparing the statement, the relationship of the EIS process to

the decisionmaking process, and the priority

accorded by the agency management to the

statement and the project itself are all

critical.

CEQ concluded in its annual report that,

“There were substantial problems of delay in

the early years of NEPA, but that they are

diminishing as agencies improve their environmental expertise and begin impact

statement preparation earlier in their planning and decisionmaking process."68 It was

recognized that there is a trend toward

shorter times for preparation of draft and

final EISs.

CEQ’s most recent survey of agency experience with NEPA litigation puts some

Table 5.—Time Required for Draft EIS Preparation,

Fiscal Year 1975

(in months)

Minimum Maximum Average

Agriculture

Forest Service. . . . . . . 1 24 13

Interior . . . . . . . . . . . . . . . 1 18 10

Bureau of Land

Management . . . . . . 2 38 20

Fish and Wildlife

Service . . . . . . . . . . . 3 12 8

National Park

Service . . . . . . . . . . . 12 24 14

Average Time Between Filing of Draft and Final EISs,

Calendar Year 1974

(in months)

Agriculture

Forest Service . . . . . . . . . . . . . . . . . . . . . . 9.1

Interior

Bureau of Land Management . . . . . . . . 5.7

Fish and Wildlife Service . . . . . . . . . . . 19.8

National Park Service . . . . . . . . . . . . . . 13.0

SOURCE: CEQ, Environmental Impact Statements: An Analysis of Six Years Experience by Seventy Federal Agencies, 1976, at 29-30.

Table 6.—National Environmental Policy Act Litigation

Cases Cases Injunction

Cases dismissed dismissed issued Injunction

alleging Cases no EIS alleging no EIS inadequate permanent

Agency Cases EISa needed dismissed needed inadequate EIS prepared EIS injunction

Cases {as of June 30, 1976) completed

Agriculture

Forest Service ., . . . . . . . . . . . . . . . . 31 24 11 9 2

Interior

Bureau of Land Management. . . . . . . . 11 5 1 3 1

Fish and Wildlife Service . . . . . . . . . . . 4 3 0 0 0

National Park Service . . . . . . . . . . . . . 7 6 0 0 0

All Federal agencies (total). . . . . . . . 527C

350 155 96 55

Cases (as of June 30, 1976) pending

Agriculture

Forest Service . . . . . . . . . . . . . . . . . . . . 23 13 0 0 0

Interior

Bureau of Land Management. . . . . . . 19 13 0 4 0

Fish and Wildlife Service . . . . . . . . . . 2 2 0 0 0

National Park Service . . . . . . . . . . . . . . 8 5 0 0 0

All Federal agencies (total). . . . . . . . 399d 229 13 14 13

5 1 0

0 0 0

0 0 0

b

2 1 0

60 45 0

3 3 0

0 2 0

0 0 0

2 0 0

45 40 0

aEnvwonmental lm~act statements

bln)unctlons Which permanently halted the Prolect

cRepresents 444 actual cases The difference of 83 represents cases brought against more than one agency

dThls figure represents 339 actual cases The difference of 60 represents cases brought against more than one agency

SOURCE CEO, Emwonmerrra/ Qua//fy 7977 Efghth Arrrwa/ Report, pp 125.128
Ch. 6 Federal Land Planning and Environmental Laws ● 149

perspective on problems stemming from delay

associated with NEPA.69 Since the enactment

of NEPA,70 CEQ found that 7,334 EISs had

been filed and that there had been a total of

783 suits filed against Federal agencies alleging a violation of NEPA. In 479 cases, plaintiffs sought preparation of an EIS; in 288

cases, the adequacy of an EIS was challenged.

In the 61⁄2 years covered, injunctions had

been granted in 177 cases. In 547 cases that

reached the courts, no injunctions were ordered. Of the 177 injunctions, 75 have lasted

longer than 1 year (see table 7). CEQ characterizes delays caused by NEPA-related injunctions as follows:71

This figure is less than 3 percent of the

7,334 actions for which impact statements

were prepared and a much smaller proportion of the unknown-but very large—number of assessments made. . . . In no cases

were actions stopped permanently solely

because of a NEPA injunction. Although in a

particular case, an injunction might cause

considerable delay, the delays caused by

NEPA injunctions are small when viewed

against the whole spectrum of Federal activity.

Table 7.—Injunctive Delays of Federal Actions

Under the National Environmental Policy Act (NEPA)

Projects

Injunctive action involved

Delayed by NEPA-related injunctions

Up to 3 months . . . . . . . . . . . . . . . . 32

3 to 6 months . . . . . . . . . . . . . . . . . 18

6 to 12 months . . . . . . . . . . . . . . . . 22

Over 12 months. . . . . . . . . . . . . . . . 75

Length of delay not indicated. . . . 30

TOTAL . . . . . . . . . . . . . . . . . . . . . 177

Permanently halted by NEPA-related

injunctions . . . . . . . . . . . . . . . . . . . . . 0

Delayed by non-N EPA-related

injunctions . . . . . . . . . . . . . . . . . . . . . 20

No injunctions . . . . . . . . . . . . . . . . . . . . 547

Injunction status not indicated. . . . . . . 39

TOTAL . . . . . . . . . . . . . . . . . . . . . 783

CEQ identified 42 projects that were stopped

after a NEPA challenge was brought (see

table 8).72

Table 8.—Projects Canceled as a Result of National

Environmental Policy Act (NEPA) Injunctions

Projects

Reason canceled

Local/State decision to halt a project

involving Federal funds. . . . . . . . . . .

Federal decision to halt a project. . . . .

Part of a settlement agreement . . . . . .

Applicant withdrew . . . . . . . . . . . . . . . .

Injunction granted under another law .

Congressional action. . . . . . . . . . . . . . .

Local/State decision to proceed

without Federal funds’ . . . . . . . . . . .

Judicial interpretation of another law .

Deference to congressional desires . .

Presidential decision to halt a project.

Local land use conflicts . . . . . . . . . . . .

Not indicated . . . . . . . . . . . . . . . . . . . . .

12

9

6

4

2

2

2

1

1

1

1

1

TOTAL . . . . . . . . . . . . . . . . . . . . . 42

‘These two prolects were continued on the local or State level, only the Federal

funding was canceled

SOURCE CEO, Environmental Qua//ty–7977, E/ghrh Annual Report, P 29

The CEQ survey does show that NEPA litigation delays are not as widespread as may

sometimes be alleged. However, the small

number of injunctions could be misleading. In

some cases, settlements or agreements by a

defendant agency may have the same delaying effect as an injunction (even though it is a

delay that is justified under terms of the

statute). Also, the small number of injunctions may not accurately reflect the number

of individuals affected. NEPA actions involving broad agency programs such as the

Federal coal leasing program, the Outer Continental Shelf leasing program, nuclear fuel

reprocessing, and western grazing practices

have affected hundreds, perhaps thousands,

of applicants and potential applicants for

Federal licenses and permits.73

What the CEQ data indicate clearly is that

most NEPA challenges are and can be resolved in a reasonable period of time.
150. Analysis of Laws Governing Access Across Federal Lands

FOOTNOTE REFERENCES FOR NATIONAL

ENVIRONMENTAL POLICY ACT OF 1969

IPublic Law 91-190, 83 Stat. 852, Jan. 1, 1970, as

amended by Public Law 94-83, 89 Stat. 424, Aug. 9,

1975,42 U.S.C. 4321-4347.

2

42 U,S.C. 4332(2)(C). See Calvert Cliffs’ Coordinating

Committee, Inc. v, U.S. Atomic Energy Commission, 449

F,2d 1109 (D.C. Cir. 1971), cert. denied, 404 U.S. 942,

for a discussion of the legislative history and intended

effect of the requirement for an environmental impact

statement. See also, Richard N. L. Andrews, “Impact

Statements and Impact Assessment,” in Environmental

Impact Assessment (Marian Blisset, cd,), Engineering

Foundation, 1975, at pp. 16-18.

3However, five circuit courts of appeals have explicitly adopted the position that NEPA imposes some

substantive requirements on Federal agencies: EDF v.

Corps of Engineers, 492 F.2d 1123 (5th Cir. 1974); Conservation Council v. Froehlke, 473 F.2d 664 (4th Cir.

1973); Sierra Club v. Froehlke, 486 F.2d 946 (7th Cir.

1973); EDF v. Corps of Engineers, 470 F.2d 289 (8th Cir.

1972); and Calvert C.lif~s’ Coordinating Committee, Inc.

v. AEC, 449 F,2d I109 (D.C. Cir. 1971).

In Calvert Cliffs, the court stated its role in reviewing

both procedural and substantive aspects of an agency

decision:

The reviewing courts probably camot reverse a

substantive provision on its merits, under section 101,

unless it be shown that the actual balance of costs and

benefits that was struck was arbitrary or clearly gave insufficient weight to environmental values. But if the decision was reached procedurally without individualized consideration and balancing of environmental factors—conducted fully and in good faith—it is the responsibility of

the courts to reverse.

4

See section 304(b) of the Federal Land Policy and

Management Act of 1976, Public Law 94-579, 90 Stat.

2765, 43 U.S.C. 1734(b), which applies to the public

lands and the national forests, See also, the regulations

for the National Park Service and the Bureau of Land

Management at 43 CFR 2802.1-2(a) (l); and for the Fish

and Wildlife Service at 50 CFR 29. 21-22(a).

5

42 U.S.C. 4331(a).

“Id.

7Section 105,42 U.S.C, 4335.

‘Section IOl(b), 42 U,S.C. 4331(b).

9Section 102(1), 42 U.S,C. 4332(l),

‘“Section 102(2)(A), 42 U.S.C. 4332(2)(A).

“Id.

‘

z

Section 102(2)(B), 42 U.S.C. 4332(2)(B).

,

3 Section 102(2)(c), 42 U.S.C. 4332(Z)(C)”

“Section 102(2)(E), 42 U.S.C. 4332(E). This section

was originally section I02(2)(D) and is so referred to in

many court cases on NEPA; however, Public Law 94-83

added a new subparagraph (2)(D) and redesignated

subparagraphs (D) to (H) as (E) to (1) respectively.

‘

s

Section 102(2)(F), 42 U.S.C. 4332(2)(F).

“Section 102(2)(G), 42 U,S.C, 4332(2)(G).

‘7Section 102(2)(H), 42 U.S.C. 4332(2)(H).

IBsection 102(2)(I), 42 U.S.C. 4332(Z)(1).

Wublic Law 91-190, Title H, section 202, 83 Stat,

854, 43 U.S,C. 4342.

Z“public Law 91-224, 84 Stat, 114, Apr. 3, 1970, 42

U.S.C. 4372-4374.

21E.0. 11514,35 F,R. 4247, Mar. 5, 1970.

ZZCEQ guidelines are at 40 CFR 1500.

23Greene Countyv.FPC,455F.2412 (2d Cir, 1972).

2442 U.S,C, 4332(2)(C).

‘s40 CFR 1500.6(c).

2

’40 CFR 1500.5,

ZT40 CFR 1500.6(c).

2’40 CFR 1500.6( a].

’940 CFR lsoo. qb).

30Courts have found some of the following to be “major actions:” a Federal loan guarantee for a 16-story

building, Goose Hollow Foothills League v. Romney, 334

F. Supp. 877 (D.Ore. 1971); approval of a branch bank

location, Billings v. Camp, 4 E.R,C. 1744 (D.D.C. 1972);

3115 U.s.c. 793(c)(l).

’233 U.s.c. 1371(c)(1).

337 U.S,C. 135 et seq.

34EDF v. EPA, 489 F,2d 1247 (D.C. Cir, 1973).

3sThe original CEQ guidelines for EIS preparation

also adopted this interpretation: “Because of (NEPA’s)

legislative history, environmentally protective regulatory actions concurred in or taken by the EPA are not

deemed actions which require preparation of an EIS

under section 102(2](c) of the Act. ” Section 5(d), 36 F.R.

7724, Apr. 23, 1971.

“see Ca]vert ~iffs coordinating COmmittee, Inc. v.

AEC, 449 F.2d 1109 (D.C. Cir. 1971); National Resources

Defense Council v. Morton, 458 F.2d 827 (D.C. Cir.

1972); Scientists’ Institute for PubJic In~ormation v,

AEC, 4811 F.2d 1079 (D.C. Cir, 1973).

‘Scientists Institute for Public hformation v. AEG

481 F.2d 1079 (D,C, Cir. 1973),

3840 CFR lsoo, qd)(z),

3Whe CEQ guidelines say little about negative declarations, concentrating rather on the requirements for

finding the existence of a major action. Agencies are

required to notify CEQ when they have made a negative

declaration for a proposed action (i) which is of the sort

that the agency has previously identified as generally

requiring an EIS, (ii] which is similar to actions for

which it has prepared a significant number of statements, or (iii) which the agency has previously announced would be the subject of an EIS, or concerning

which the agency had received a request from CEQ to

prepare a statement. The agency is also required to

prepare a publicly available record briefly setting forth

the determination and explaining it. CEQ will periodically publish in the FederaJ Register a list of such declarations. 40 CFR 1500.6(e),
Ch. 6 Federal Land Planning and Environmental Laws “ 151

~he requirement that a draft EIS “fulfill and satisfy

to the fullest extent possible at the time the draft is

prepared the requirements established for final statements by section I02(2)(c)” is found at 40 CFR

15 C)().7(a). Specific requirements for the contents of any

EIS are found at 40 CFR 1500.8.

4) Section 102(2)(A), 42 U.S.C. 4332(2)(A).

42Calvert Cliffs’ Coordinating Committee, Inc. v. AEC,

449 F.2d 1109 at (D.C. Cir. 1971).

43 Public Law 94-83,89 Stat. 424, Aug. 9, 1975.

44CEQ provides a list of “Areas of environmental impact and Federal agencies and Federal-State agencies

with jurisdiction by law or special expertise to comment thereon” in appendix I to 40 CFR part 1500. Procedures for soliciting comments from State and local

agencies are governed by OMB Circular No. A-95, see

appendix IV to 40 CFR part 1500.

45Lathan v. Volpe, 350 F. Supp. 262, at 265 (W.D.

Wash. 1972).

4840 CFR 1500. IO(a).

47EDF v. Froehlke, 477 F.2d. 1033 (8th Cir. 1973).

However, while courts have held that injunctive relief

is appropriate under NEPA, they have applied the traditional tests that apply in all civil cases to applications

for injunctions. Plaintiffs seeking injunctive relief must

show (1] that they are likely to prevail on the merits; (2)

that they will suffer irreparable damage if the injunction is not issued; and (3) that the public interest supports granting the injunction. See Conservation Council

of North Carolina v. Costanzo, 528 F.2d. 250 (4th Cir.

1974); EDF v. Armstrong, 352 F. Supp. 50 (D. Col. 1972),

supplemented, 356 F. Supp. 131, aff’d, 487 F.2d. 814,

cert. denied, 416 U.S. 974, rehearing denied, 419 U.S.

1041.

“Codified at 5 U.S.C. 551-59, 701-06, 13o5, 31o5,

3344,6362, 7562.

4QCalvert Cliffs’ Coordinating Committee, Inc. v. AEC,

449 F.2d 1109 (D.C. Cir. 1971).

50Environmental Defense Fund v. Corps of Engineers,

325 F. Supp. 749 (E.D. Ark. 1971).

5

1 Environmental Defense Fund v. Corps of Engineers,

470 F.2d 289, (8th Cir. 1972).

52’’This section was designed to cover almost every

form of Federal activity.” Chelsea Neighborhood

Associations v. U.S. Postal Service, 516 F.2d 378 (2d

Cir. 1975). See also, Union Meclding v. U. S., 390 F.

Supp. 391 (D. Pa. 1971) and Hardy v. MitcheJl, 460 F.2d

640 (2d Cir. 1972).

53’’ Federal officials are entitled to “dream out loud”

without filing an impact statement; however, a statement is required when a proposal moves beyond the

“dream” stage into some form of tangible response. ”

Sierra Club v. Morton, 514 F.2d 856 (D.C. Cir. 1975),

rev’d on other grounds, 427 U.S. 390. “Environmental

impact statement should be prepared at the earliest

time prior to implementation of proposed major Federal

action, so that alternative courses of action with less

severe environmental consequences can be considered. ” Friends of the Earth v. Coleman, 518 F.2d. 323

(9th Cir. 1975).

“’’This section does not permit the responsible

Federal agency to abdicate its statutory duties by

reflexively rubberstamping an environmental impact

statement prepared by others; the agency must independently perform its reviewing, analytical and

judicial functions and participate actively and significantly in the preparation and drafting process. ”

Sierra Club v. Lynn, 502 F.2d. 43 (6th Cir. 1974). See

also, City of Davis v, Coleman, 521 F.2d. 661 (9th Cir.

1975).

55’’ Detailed environmental impact statement must

cover environmental costs which may be avoided. ”

Montgomery v. Ellis, 364 F. Supp. 517 (D. Ala. 1973).

5

’” T0 carry out the statutory mandate of this section,

every relevant environmental effect of a project must

be given consideration in the environmental impact

statement.” Sierra Club v. Morton, 510 F.2d. 813 (5th

Cir. 1975). “Environmental impact statement should

discuss all significant primary environmental effects

and all substantial secondary environmental effects. ”

Lije of the Land v. Volpe, 363 F, Supp. 1171 [D, Hawaii

1972), aff’d, 485 F.2d 460.

57” It is absolutely essential to the process under this

section that the decisionmaker be provided with a detailed and careful analysis of the relative environmental merits and demerits of the proposed action and

possible alternatives. ” National Resources Defense

Council v. Callaway, 524 F.2d 79 (2d Cir. 1975). 58ca]vert C]iffs supra, note 2”

SgEnvironmenta] Defense Fund v. TVA, 339 FQSupP”

806 (E.D. Tern. 1972).

‘National Helium Corp. v. Morton, 486 F.2d 995 (lOth

Cir. 1973).

6’See, supra, note 2.

G’Environmenta] Defense Fund v. Corps of Engineers

470 F.2d 289 (8th Cir. 1972).

63Cape Henry Bird Club v. Laird, 359 F. Supp. 404 (D.

Va. 1973), aff’d, 484 F.2d 453.

64william R. Tipton, “EnvironmentaI Considerations

in Project Management, ” Journal of Metals, May 1977.

65Tipton’s estimates do not include any provision for

environmental impact reviews where the applicant

owns the site and no Federal rights-of-way are involved, Tipton posits that there is no Federal role in this

transaction at all, hence no NEPA application, It should

be noted, however, that 15 States have enacted comprehensive statutes similar in many respects to NEPA,

4 States have administrative or executive orders requiring environmental reviews, and 7 States have special or limited EIS requirements. See Environmental

QuaJity–1977, The Eighth Annual I?eport of the Council

on Environmental Quality, 1977, pp. 130-35, (hereafter

“Environment—1977”). Therefore, in some States, the

permit review process might come to resemble more

closely the Federal process even if no Federal rights-ofway are involved.

8

’Environmental Impact Statements: An Analysis of 6

Years Experience by 70 Federal Agencies, Council on

Environmental Quality, March 1976.

‘71d. at 28.
152 ● Analysis of Laws Governing Access Across Federal Lands

aJJEnvjrOnmentaJ Quality—l 976, The Seventh Annual

Report of the Council on Environmental Quality, 1976, p.

123.

6gEnvironment—~ 977, pp. 122-129.

70 Figures in this survey were for the period ending

June 30,1976.

7

1 Environment—1977, pp. 123, 129,

721d. at 129.

73The purpose of this paragraph is not to argue the

merits of the cases mentioned or to imply that the

delays indicated were environmental, but merely to

point out that 177 injunctions do not translate into only

177 individual projects. Challenges to generic programs can have widespread effects.
Ch. 6 Federal Land Planning and Environmental Laws .153

SECTION 4(f) OF THE DEPARTMENT OF TRANSPORTATION

ACT OF 1966

The Department of Transportation (DOT)

Act of 19661 consolidated various Federal

transportation agencies and programs into a

single new department. One of the stated purposes of the reorganization was the adoption

of the national land preservation policy that a

“special effort should be made to preserve

the natural beauty of the countryside and

public park and recreation lands, wildlife

and waterfowl refuges, and historic sites.”2

To implement this policy, section 4(f) of the

DOT Act, as amended,3 imposes specific limitations on the authority of the Secretary of

Transportation to approve Federal expenditures for projects that would use such lands.

Section 4(f) provides:

It is hereby declared to be the national

policy that special effort should be made to

preserve the natural beauty of the countryside and public park and recreation

lands, wildlife and waterfowl refuges, and

historic sites. The Secretary of Transportation shall cooperate and consult with the

Secretaries of the Interior, Housing and Urban Development, and Agriculture, and with

the States in developing transportation plans

and programs that include measures to maintain or enhance the natural beauty of the

lands traversed. After August 23, 1968, the

Secretary shall not approve any program or

project which requires the use of any publicly owned land from a public park, recreation

area, or wildlife and waterfowl refuge of National, State, or local significance as determined by the Federal, State, or local officials

having jurisdiction thereof, or any land from

an historic site of National, State, or local

significance as so determined by such officials unless (1] there is no feasible and prudent alternative to the use of such land, and

(2) such program includes all possible planning to minimize harm to such park, recreational area, wildlife and waterfowl refuge, or

historic site resulting from such use.4

Section 4(f) has three components: it affirms the national policy to preserve public

Note: Footnotes for this section appear on p. 159.

park, refuge, and recreation lands and historic sites; it directs the Secretary to develop

transportation plans in cooperation with the

States and the Departments of Housing and

Urban Development, the Interior, and Agriculture to enhance and maintain the lands

traversed by transportation projects; and,

most importantly, it imposes direct and explicit restrictions on the authority of the

Secretary to approve federally funded programs or projects that would use any of these

lands of National, State, or local significance

unless there is no prudent and feasible alternative and all possible planning has been included to minimize harm.

Section 4(f) has far-reaching implications

for the availability of Federal funds for

transportation projects that might be needed

to develop mineral resources, not only because it may restrict the approval of projects

on certain Federal lands for transportation

purposes, but also because it limits the use of

State, local, and some private lands. Section

4(f) and a virtually identical provision, section

138 of Title 23, U. S. C., the Federal-Aid

Highway Act, as amended,5 were passed in

response to the recognized tendency on the

part of some Federal, State, and local officials to appropriate public park, recreation,

and refuge lands and historic sites for

highway construction and other transportation projects in order to avoid the disruption

and difficulties associated with use of builtup areas. A 1976 amendment to section 138

added the following provision expanding the

Secretary’s transportation planning responsibilities for Federal-aid highways:

. . . In carrying out the national policy declared in this section the Secretary in cooperation with the Secretary of the Interior and

appropriate State and local officials, is authorized to conduct studies as to the most

feasible Federal-aid routes for the movement

of motor vehicular traffic through or around

national parks so as to best serve the needs
of the traveling public while preserving the

natural beauty of these areas.6

TRANSPORTATION PROJECTS

COVERED BY SECTION 4(f)

The provisions of section 4(f) are applicable to federally funded transportation programs and projects under the jurisdiction of

the Secretary of Transportation. Section 138

applies only to Federal-aid highway projects.7

The Federal-aid highway program, which is

administered by the Federal Highway Administration (FHWA) of DOT, provides Federal

funds for a percentage of the costs of the

planning, design, and construction of highways in the interstate, primary, secondary,

and urban systems.8 Ninety percent of the

costs of interstate highways and seventy percent of the costs of other roads are reimbursed to States from Federal funds, primarily the Highway Trust Fund.

Other federally aided transportation programs may be subject to 4(f) review as well, if

use of protected lands is involved. These include, for example, programs for construction, expansion, and maintenance of railroads, airports, and aviation and navigation

aids. Extension of the Alaska Railroad, which

is operated by the Federal Railroad Administration, may be subject to 4(f) restrictions if

a proposed route made use of protected

lands. Because of the magnitude of Federal

funding of State highway programs, the primary impact of section 4(f) has been on

highway and road construction projects.

For section 4(f) to apply, the project must

be federally funded. Transportation projects

that are entirely financed by State, local, or

private funds are not subject to 4(f) restric-
Ch. 6 Federal Land Planning and Environmental Laws ● 155

tions. 9 These restrictions do not apply to the

Federal funding of State and local planning

processes and agencies, which may result in

a proposal to use park land, since planning is

not a program or project requiring use of

such lands within the meaning of section

4( f). ’0 Section 4(f) is a limitation on the

authority of the Secretary of Transportation

and thus would not generally apply to approval and construction of roads and other

transportation projects on rights-of-way on

Federal lands (national parks, refuges,

forests, and public land), which are within

the jurisdiction of the Secretaries of the Interior and Agriculture, if no DOT funds are

involved.

PROTECTED LANDS

The purpose of section 4(f) is to protect

“public park and recreation lands, wildlife

and waterfowl refuges, and historic sites”

from the environmentally destructive effects

of transportation projects, by directing the

Secretary of Transportation to deny the use

of Federal funds for projects requiring the

use of these lands, in all but the most unusual

circumstances. Lands that are protected by

section 4(f), must meet certain statutory requirements. First, except for historic sites,ll

the lands must be owned by the Federal,

State, or local government. Second, the lands

must be designated or used as a park, recreation area, refuge, or historic site. Third, the

lands must have National, State, or local significance as determined by the appropriate

Federal, State, or local officials. If these requirements are satisfied, then the Secretary

may not approve any program or project requiring their use unless he finds (1) that there

is no feasible and prudent alternative route,

and (z) that the program includes all possible

planning to minimize harm to the protected

lands. Prior to any such approval, the

Secretary must conduct a review of possible

alternative routes and plans based on the

best available information; this process is

known as 4(f) review.

The provisions of section 4(f) clearly apply

to components of the National Park System

and the National Wildlife Refuge System.

Section 4(f) would also seem to apply to components of the National Wilderness Preservation System and the National Wild and Scenic

Rivers System that are not managed as part

of the park or refuge systems because of the

designated purposes of these systems—recreation and preservation. In the case of other

Federal lands that are subject to multiple-use

classification, such as the National Forest

System and public lands managed by the

Bureau of Land Management (BLM) and the

Bureau of Reclamation, section 4(f) would not

apply if the portion of lands to be taken for a

transportation project is not actually being

used for park, recreation, wildlife, waterfowl, or historic purposes, and there is no definite formulated plan for such use.12 As an additional assurance of protection, the managing agency’s land use determination is subject to review by the Secretary for its reasonableness. 13 Thus, it cannot be assumed that

BLM-public lands and forest system lands are

automatically not subject to 4(f) review. Public land or forest areas used for recreation,

wildlife protection, and historic sites as well

as areas that may be under study for potential designation as wilderness areas or Wild

and Scenic Rivers System components may

require 4(f) review, but for the most part,

many of these lands will not require 4(f) review. Moreover, even protected national

park, refuge, wilderness, and wild and scenic

rivers areas may not require 4(f) review, if

the appropriate land manager determines

that they do not have National, State, or local

significance. This determination of nonsignificance must be independently reviewed by

the Secretary of Transportation or his designate.14

Lands owned by State and local governments are subject to section 4(f) if they are

designated as public parks, recreation areas,

wildlife or waterfowl refuges, or historic

sites. 15 If the lands are managed for multiple

uses and have not been officially designated

to these protected categories, they will fall

within the ambit of section 4(f) if, in the judgment of the official having jurisdiction over

the lands,l6 they are actually used for such
156 ● Analysis of Laws Governing Access Across Federal Lands

purposes. This land use determination is subject to independent review by the Secretary

for its reasonableness. Publicly owned lands,

which are neither designated nor used for

park, refuge, recreation, or historic purposes,

are not subject to 4(f) review and approval.

Historic sites that are listed or eligible for

inclusion in the National Register of Historic

Places are protected by section 4(f) whether

or not they are publicly owned. An historic

site that is not listed or eligible for the

register, is nevertheless protected if the appropriate Federal, State, or local official determines that it has National, State, or local

significance. 17 FHWA regulations for treatment of historic sites require that FHWA and

State officials apply National Register Criteria to all possible historic sites within the

area of potential environmental impact at the

earliest possible stage of planning or consideration. 18 Historic sites that are not listed

or eligible for the National Register and that

are not determined to possess National,

State, or local significance are not subject to

4(f) review and approval. The Secretary or

his designate must review the nonsignificance determination for its reasonableness.

In order to invoke 4(f) review and protection, Federal, State, and locally owned park,

refuge, recreation lands, and historic sites

must be found to have National, State, or

local significance. The determination of significance is to be made by the officials that

have jurisdiction over the lands concerned.

Any determination of nonsignificance is subject to review for its reasonableness.19 If no

determination is made by the appropriate official, then the lands are presumed significant for administrative proceedings and any

subsequent judicial review. This presumption

is based on the national policy of giving the

protection of these areas paramount importance. 20

OVERTON PARK

In 1971, the U.S. Supreme Court interpreted section 4(f) in Citizens to Preserve

Overton Park, Inc. v. Volpe.21 That case was a

citizens’ suit to enjoin expenditure of Federal

funds for the construction of an interstate

highway through a city park in Memphis,

Tern., on the grounds that the Secretary of

Transportation, in his approval of the project,

had failed to satisfy the requirements of section 4(f). The district court had granted summary judgment denying the citizens’ claim.

The denial was based on an interpretation

that 4(f) was merely advisory and the Secretary’s action was, therefore, discretionary

and subject only to narrow judicial review.

The Supreme Court never ruled on the

merits of the decision by the Secretary. The

case record, reflecting the summary judgment granted by the district court, did not

disclose sufficient information on which to

base a decision on the merits. The Court did,

however, interpret the statute in some detail

and clearly set forth the standards for judicial review.

The Court found that the Secretary’s decision was subject to judicial review through

suits by citizens groups or other aggrieved individuals, under section 701 of the Administrative Procedure Act,22 since it held that

there was no statutory provision restricting

review of such decisions and the matter was

not a subject committed to agency discretion,

thus rejecting the district court’s interpretation of the statute. The limitation on judicial

review of matters committed by law to agency

discretion under the Administrative Procedure Act, applies only in those rare instances

where “statutes are drawn in such broad

terms that there is no law to apply.”23 In implementing section 4(f), the Court found that

the Secretary of Transportation clearly had

law to apply .24

The Court held that section 4(f) and section

138 are “clear and specific directives” that

provide that the Secretary shall not approve

expenditures of Federal funds for any program or project requiring the use of any

public parklands unless (1) there is no feasible and prudent alternative to the proposed

use and (2) the project includes all possible
Ch. 6 Federal Land Planning and Environmental Laws ● 157

planning to minimize harm from such use.

The Court stated, “This language is a plain

and explicit bar to the use of Federal funds

for construction of highways and other transportation projects through parks; only the

most unusual situations are exempt.”25 The

Court further noted that the passage of sections 4(f) and 138 marked congressional rejection of the contention that factors of cost,

directness of route, community disruption,

and other competing uses should be weighed

on an equal basis with the preservation of

park land.

But the very existence of these statutes indicates that protection of park land was to

be given paramount importance. The few

green havens that are public parks were not

to be lost unless there were truly unusual

factors present in a particular case or the

cost or community disruption resulting from

alternative routes reached extraordinary

magnitudes. If the statutes are to have any

meaning, the Secretary cannot approve the

destruction of park land unless he finds that

alternative routes present unique problems .26

Because section 4(f) strictly limited the

Secretary’s actions and imposed specific preconditions on the approval of transportation

projects that use park land, the Court found

that the Secretary’s decision was subject to

full judicial scrutiny. Affidavits issued in support of the administrative decision for litigation purposes were found not to be a sufficient record of the factors weighed in the 4(f)

decision. The Court did not hold that the Secretary is required to make formal findings of

fact in a 4(f) review, but it stated that the

record must disclose the factual basis to support his actions and demonstrate administrative compliance with the requirements of

4(f).27 In response to the Court’s ruling on the

inadequacy of the administrative record,

DOT-FHWA regulations now require the

preparation of a special 4(f) statement whenever 4(f) lands are to be used in a highway

project. 28

The Court also defined the term “feasible

and prudent alternative” and the factors that

may properly be considered under each. A

feasible alternative route is a route that is

based on sound engineering practices.29 Considerations of cost, delay, and community dislocation are not appropriate factors in the

determination of feasible alternative routes,

but climate, topography, geology, and technological restraints do relate to feasibility. To

find that there is no feasible alternative

route, the Secretary must find that, as a matter of sound engineering, the highway or

other project could not be constructed along

any other route.30

A prudent alternative route is one that

presents no unique problems.31 For an alternative route to be imprudent it must have

truly unusual features so that the costs or

community disruption would reach “extraordinary magnitudes.”32 High costs, delay, dislocation of homes and businesses, and other

factors commonly associated with highway

and other transportation construction are not

so unusual or extraordinary as to render an

alternative, which resulted in such effects, an

imprudent route.

In addition to a finding that there is no

feasible or prudent alternative route, section

4(f) requires, as a precondition to approval of

a route using park land or other protected

areas, that the project include “all possible

planning to minimize harm from such use. ”

Thus protective measures, which may add to

costs of the project or impose delay, may not

be rejected because of difficulties involved,

since such problems do not render the measures impossible, and the protection of parks,

refuges, recreation areas, and historic sites

is to be given predominance over other factors. Considerations of cost, delay, and disruption are factors relating to the prudence

of a particular alternative route and not to

the issue of the adequacy of planning for a

route using 4(f) land.

THE 4(f) STATEMENT

To provide a basis for 4(f) review and a

record of the various factors and alternatives

considered, DOT-FHWA regulations require
— —

158. Analysis of Laws Governing Access Across Federal Lands

that a 4(f) statement be prepared for projects

or programs that would require use of protected lands within the scope of section 4(f) or

section 138. The purpose of the 4(f) statement

is to document the consideration, consultations, and alternative studies carried out in

determining that there are no feasible and

prudent alternatives to the use of protected

lands, and to support a determination that

the proposed action includes all possible

planning to minimize harm.33 The statement is

to be coordinated with the Federal, State, or

local agency having jurisdiction over the

land, with the Departments of the Interior

and Housing and Urban Development, and

where appropriate, with the Department of

Agriculture.34

DOT-FHWA regulations on preparation of

EISs under the National Environmental Policy

Act (NEPA) require that an EIS be prepared

whenever a 4(f) statement is required. An EIS

is required for any major Federal action

significantly affecting the environment. The

regulations list, among major actions, “a project that warrants a major action classification because it has been given national recognition by Congress. . . . Such a project would

be one that falls under section 4(f) of the DOT

Act . . "35 The regulations also provide that

“an action that has more than a minimal effect on properties protected under section

4(f) of the DOT Act” is to be considered as an

action “significantly affecting the human environment.”36 Both the EIS and the 4(f) statement are to be prepared during the location

stage of highway development, prior to the

selection of a particular location.37 The 4(f)

statement may be prepared in coordination

with the EIS and may be either a structurally

independent section of the EIS or a separate

document. 38 The 4(f) statement normally will

accompany the final EIS through the decision

process.

39

The 4(f) statement should list the factors

used to judge that each alternative is not

feasible and prudent along with the special

measures planned to minimize harm to the

protected land.40 Each statement should present a full and complete description of the

proposed project, the 4(f) lands to be used,

and the the recreational, historic, wildlife,

and environmental characteristics of the surrounding community, plus the potential effects on existing facilities and land users.41

Accurate and detailed information must be

included to support the determination that

there is no feasible or prudent alternative.

“Supporting information should demonstrate

that there are unique problems, truly unusual

factors present, and evidence that the cost or

community disruption resulting from such

routes reaches extraordinary magnitudes.”42

The statement must also include the “best

available information” on measures to minimize harm to section 4(f) land from highway

construction. Examples of such measures include replacement of or compensation for

lands taken, improvement of remaining lands

and facilities, design features to reduce the

effects of such use, construction of substitute

facilities prior to destruction or taking of 4(f)

lands, and conducting scheduled demolition,

moving, and construction activities during the

off-season. 43 Finally the statement should include a summary of the coordination with

other Government agencies, and copies of

comments received during agency review and

their disposition.44

In order for the Secretary to approve use of

lands protected by section 4(f) and section

138, he must find that there is no feasible and

prudent alternative to their use and that all

possible planning has been done to minimize

harm. There must be consideration of alternative routes and plans, all of which must be

found to be neither prudent nor feasible. Considerations of cost, disruption, and delay

bear on the determination of prudence but

they are not to be given equal status with the

national policy on preservation of park and

other lands. Only the most unusual circumstances will justify approval of a route

through park land. Any statement proposing

use of 4(f) land must include all possible planning to avoid environmental harm before it

may be approved. Cost, delay, and disruption

are all factors relating to the prudence of the
Ch. 6 Federal Land Planning and Environmental Laws ● 159

route and not to the issue of planning. The

review of alternative routes and plans, coordination with other agencies, and factors

leading to the approval of use of protected

ment.45 Only after the substantive and procedural requirements of 4(f) have been satisfied

may the Secretary approve Federal expenditures for construction of the project.

lands must be documented in a 4(f) state- I

FOOTNOTE REFERENCES FOR SECTION 4(f)

‘Public Law 89-670, 80 Stat, 931, Oct. 15, 1976, 49

U,S.C, section 1651 et seq.

2

49 U.S,C, section 1651(b)(2).

3

49 U,S.C. section 1653(f).

‘Id.

‘Through several amendments, section 138 is now

substantially identical to section 4(f): Public Law

89-574, section 15, 80 Stat. 771, Sept. 13, 1966, as

amended by Public Law 90-495, section 18(a), 82 Stat.

823, Aug. 23, 1968, and Public Law 94-280, Title 1, section 124,90 Stat, 440, May 5, 1976,

‘Public Law 94-280, Title 1, section 124, 90 Stat, 440,

May 5, 1976,23 U. S. C., 138.

7

See note, “Protecting Public Parkland from Indirect

Federal Highway Intrusion, ” 62 Iowa Law Review 960

[1977) at 963, n. 31.

‘The routes for Federal-aid highways are designated

by State or local officials subject to approval by the

Secretary of Transportation, 23 U.S.C. 103, 23 U.S.C.

317, 23 U.S.C. 103(f). The State of Alaska is heavily

dependent on Federal funds for the construction of surface transportation facilities as are other States. In FY

1976, the Department of Transportation provided over

$113 million for the construction or repair of surface

transportation facilities in Alaska. It is doubtful that

the State of Alaska would make any large expenditures

for surface transportation facilities without Federal

support. H. D. Scougal, Alaskan Commissioner of

Highways, “Highway Status for 1976, Plans for 1977,”

Alaska Construction and Oil, January 1977, p. 51.

‘See Citizens for Food and Progress, Inc. v. A4usgrove,

397 F. Supp. 397 (D. Ga. 1975), and Named Indiv. Members of the San Antonio Conservation Society v. Texas

Highway Dept., 496 F.2d 1017, at 1022-23 (5th Cir.

1974], cert. denied, 420 U.S. 296 (1975).

IOHi]~ v. Co]eman, 399 F. Supp. 194 (D. Del. 1975).

“23 CFR section 771.19(b). See also, Thompson v.

Fugate, 347 F. Supp. 120 (E.D. Va. 1972), Daly v. Volpe,

350 F. Supp. 252, 256 (W.D. Wash, 1972), aff’d mem.,

514 F.2d 1106 (9th Cir. 1975).

1223 CFR 771.19(d).

“Id.

1423 CFR 771.19(c).

I

sCitizens Environmental Counsel v. VoJpe, 365 F.

Supp. 286 (D. Kan. 1973), aff’d, 484 F.2d, 870, cert.

denied, 416 U.S. 936.

1’23 CFR 771,19(d),

1723 CFR 771.19(b).

“23 CFR 771.20.

“23 CFR 771. 19(c).

20&]ington coalition on Transportation V. Volpe, 458

F.2d 1323 (4th Cir, 1972), cert. denied, 409 U.S. 1000,

2

’401 U.S. 402 (1970).

225 U.s.c. 701.

z3401 U.S. 41o, citing, S. Rept. 752, 79th COng. 1st

sess. 16 (1945).

24401 Us. 4110

“Id.

2’Id, at 412,413,

271d, at 408.

2823 CFR 771.19.

29401 U.S. 411, In Brooks v. Coleman, 518 F.2d 17, 19

(9th Cir. 1975), the Ninth Circuit interpreted feasibility

to require a tested engineering method and held infeasible a proposed method that had never been tried in

the United States. See also, Monroe County Conservation Council v. Volpe, 472 F.2d 693 (2d Cir. 1972).

30401 Us. 411.

3

’401 U.S. 413,

321d.

3323 CFR 771,19(a).

3’23 CFR 771.19(g).

3s23 CFR 771.9(d)(7),

3623 CFR 771. IO(e)(i).

’723 CFR 771.5(b). FHWA regulations divided highway development into four stages: (1) System Planning

Stage—regional analysis of transportation needs and

the identification of transportation corridors; (2) Location Stage—from the end of system planning through

the selection of a particular location; (3) Design Stage—

from the selection of a particular location to the start of

construction; and (4) Construction. 23 CFR 795.2(e).

3823 CFR 771. lg(f), See also, Stop H-3 Ass ‘n. v. Co~eman, 533 F.2d 434 (9th Cir, 1976).

3923 CFR 771.19(n).

4“23 CFR 771. 19(f).

4’23 CFR 771.19(i).

4223 CFR 771.19(]).

4323 CFR 771.19(k).

4423 CFR 771.19(n).

45D. C. Federation of Civic Associations v. Volpe, 459

F.2d 1231 (D.C. Cir. 1972), cert. denied, 405 U.S. 1030.
160 ● Analysis of Laws Governing Access Across Federal Lands

ENDANGERED SPECIES ACT OF 1973

The Endangered Species Actl provides for

Federal identification of endangered and

threatened species of fish, wildlife, and

plants; prohibits private activity that imperils

such species; and requires Federal agencies

to avoid any activities that would jeopardize

such species or result in the destruction of

critical habitats. In its restriction on Federal

activities, particularly land use decisions

relating to critical habitats, the Act could

have an effect on access to mineral resources.

ENDANGERED SPECIES

The Act sets forth the following purposes:

. . . to provide a means whereby the ecosystems upon which endangered species and

threatened species depend may be conserved, to provide a program for the conservation of such endangered species and

threatened species, and to take such steps as

may be appropriate to achieve the purposes

of the treaties and conventions set forth in

subsection (a) of this section.2

The Secretary of the Interior, in consultation with the Secretary of Commerce, is

directed to promulgate regulations identifying endangered species and threatened species.3 An endangered species is defined in the

Act as:

. . . any species which is in danger of extinction throughout all or a significant portion of

its range other than a species of the Class Insecta determined by the Secretary to constitute a pest whose protection under the provisions of this chapter would present an overwhelming risk to man.4

A threatened species is defined as:

. . . any species which is likely to become an

endangered species within the foreseeable

future throughout all or a significant portion

of its range.5

The determination of whether a particular

species of fish, wildlife, or plant is enNote: Footnotes for this section appear on pp. 163-164.

dangered may be based on any of the following factors:

1.

2.

3.

4.

5.

The present or threatened destruction,

modification, or curtailment of its habitat or range;

Overutilization for commercial, sporting,

scientific, or educational purposes;

Disease or predation;

The inadequacy of existing regulatory

mechanisms; and

Other natural or manmade factors

affecting its continued existence.6

The determination must be on the basis of

“the best scientific and commercial data

available” to the Secretary after appropriate

consultation with affected States, interested

persons and organizations, interested Federal agencies and, for foreign species, consultation with affected nations. Summaries of

comments received on the proposal to add or

remove a species from the endangered species list are published in the Federal Register.

PROHIBITED ACTS

The Secretary of the Interior is authorized

to issue “such regulations as he deems necessary and advisable to provide for the conservation” of listed species. With respect to

any listed endangered species it is unlawful

to “. . . take any such species within the

United States” or “upon the high seas,” or to "

. . . violate any regulation pertaining to such

species or to any (listed) threatened species.”7 As used in the Act, “the term ‘take’

means to harass, harm, pursue, hunt, shoot,

wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.”8 Regulations issued or proposed pursuant to the

Act are to be published in the Federal Register with a statement by the Secretary of the

facts supporting the regulation and the relationship of such facts to the regulation.9
Ch. 6 Federal Land Planning and Environmental Laws “ 161

Federal Actions

Section 7 of the Endangered Species Act requires that all Federal agencies take steps to

ensure that their actions do not jeopardize

the existence of endangered and threatened

species.

All other Federal departments and agencies shall, in consultation with and with the

assistance of the Secretary, utilize their

authorities in furtherance of the purposes of

this chapter by carrying out programs for

the conservation of endangered species and

threatened species listed pursuant to section

1533 of this title and by taking such action

necessary to insure that actions authorized,

funded, or carried out by them do not jeopardize the continued existence of such

endangered species and threatened species

or result in the destruction or modification of

habitat of such species which is determined

by the Secretary, after consultation as appropriate with the affected States, to be

critical. ’”

Thus, a Federal land management agency

evaluating a proposed action (such as granting a right-of-way over Federal lands) must

consider whether the action may harm an endangered or threatened species or detrimentally affect a critical habitat. The agency

must consult with the Secretary of the Interior (primarily through the Fish and Wildlife Service) to determine whether any harm

may result and what steps can be taken to

avoid or lessen any risk to an endangered or

threatened species or a critical habitat.

In areas that are home to unique and endangered species, a consideration of the

potential effects a proposed action might

have and of the conditions necessary to

safeguard the protected species in compliance with the Act could impose substantial

and additional constraints on a Federal land

management agency’s issuance of rights-ofway across Federal areas. In other areas

where there are few or no endangered species, the compliance requirements would

have a lesser, if any, effect on the actions of

Federal land management agencies.

Section 7 of the Endangered Species Act of

1973 has been interpreted by the courts as

imposing a duty on all Federal agencies to ensure that their actions would not jeopardize

the continued existence of any endangered or

threatened species. Compliance with the section requires that all agencies must consider

the effects, if any, a proposed action may

have on an endangered or threatened species

and must consult with the Secretary of the Interior in devising programs for the conservation of listed species. These duties are enforceable in court by a citizen’s suit authorized by section Ii(g) of the Endangered

Species Act.

Any agency that fails to satisfy the requirements of the Act in its consideration or approval of any action maybe enjoined from implementing the proposed action until the

agency is in compliance.

Judicial review of the Endangered Species

Act has centered on two questions: (1) Can

the Secretary of the Interior, by disapproving

of agency action with respect to an endangered or threatened species, veto such a project? and (z) Can a court permanently enjoin a

project on the grounds that it violates the

Act?

The first question has, apparently, been

answered in the negative. In National Wildlife Federation v. Coleman, the fifth circuit

held:

However, once an agency has had meaningful consultation with the Secretary of the

Interior concerning actions which may affect

an endangered species the final decision of

whether or not to proceed with the action

lies with the agency itself, Section 7 does not

give the Department of the Interior a veto

over the actions of other agencies, provided

that the required consultation has occurred.

It follows that after consulting with the

Secretary the Federal agency involved must

determine whether it has taken all necessary

action to insure that its actions will not

jeopardize the continued existence of an endangered species or destroy or modify habitat critical to the existence of the species. ”
162 ● Analysis of Laws Governing Access Across Federal Lands

In another case involving section 7, it was

held:

Consultation under section 7 does not require acquiescence. Should a difference of

opinion arise as to a given project the responsibility for decision after consultation is not

vested in the Secretary but in the agency involved.12 

But having reached the decision that section 7 does not provide for a veto of projects

by the Secretary of the Interior, both courts

ruled that the decision of an agency to go

ahead with a project that might present a risk

to an endangered species was a proper subject for judicial review under the standards

of the Administrative Procedure Act. That

standard provides that an agency action may

be reversed if it is found that an agency decision was “arbitrary, capricious, an abuse

of discretion, or otherwise not in accordance

with the law.”13 It is the application of the

last part of this test to agency actions which

admittedly harm an endangered species, but

are justified on other grounds, that remains

a subject of controversy and judicial uncertainty.

In Hill v. Tennessee Valley Authority

(TVA), 14 the celebrated case involving the

halting of the $100 million Tellico Dam because its construction threatened the existence of the snail darter, the sixth circuit

found that a decision to continue the project

would be a “prima facie” violation of section

7 and, hence, unlawful.15 The opinion seems

to vigorously reject the notion that violation of

the Act may properly be balanced against

other benefits associated with the project:

TVA concedes the existence of a predictable causal nexus between the impoundment

of the Little Tennessee and the ultimate depletion of the snail darter population. This

admission alone suffices to bring the affirmative action requirement of section 7 into

play.l6

TVA claims to have done everything possible to save the snail darter, short of abandoning work on the dam. That alternative is

deemed by TVA to be innately unreasonable.

We do not agree. It is conceivable that the

welfare of an endangered species may weigh

more heavily upon the public conscience as

expressed by the final will of Congress, than

the writeoff of those millions of dollars

already expended for Tellico in excess of its

present salvageable value.17

The court accepted the opinion of the Department of the Interior that the Act was

violated by an action which:

. . . might be expected to result in a reduction

in the number or distribution of the species

of sufficient magnitude to place the species

in further jeopardy, or restrict the potential

and reasonable expansion or recovery of the

species.18

It also indicated that, despite the lack of a

veto power, the views of the Secretary of the

Interior on the effect of an agency action

were to be given great weight. After noting

the lack of veto authority, the court stated,

“However, his compliance standards may

properly influence final judicial review of

such actions, particularly as to technical matters committed by statute to his special expertise.”19

On June 15, 1978, the Supreme Court affirmed the ruling of the sixth circuit in the

Tellico Dam case.20 In upholding the circuit

court decision, the Supreme Court rejected

TVA’s arguments that the dam should be exempted from section 7. The Court dismissed

the argument that Congress had exempted

the dam from section 7 by implication because it had continued to appropriate funds

after the snail darter was designated as an

endangered species.21 In response to TVA’s

argument that section 7 should be interpreted

to allow the monetary value of the substantially completed project to be weighed against

the “value” of the snail darter, the Court

said:

The plain intent of Congress in enacting

this statute was to halt and reverse the trend

toward species extinction, whatever the

Cost.22

The Court found that there was an “irreconcilable conflict” between the operation of

the Tellico Dam and the explicit provisions of
Ch. 6 Federal Land Planning and Environmental Laws ● 163

section 7 and that in such circumstances the

plain and unambiguous meaning of section 7

must prevail.

Congress has spoken in the plainest of

words, making it abundantly clear that the

balance has been struck in favor of affording

endangered species the highest of priorities,

thereby adopting a policy which it described

as ‘institutionalized caution. ’23

FOOTNOTE

I

REFERENCES

The case of the notorious snail darter resulted in legislative action to amend section 7,

even before the final decision in Hill was

issued by the Supreme Court. In the final days

of the 95th Congress, the Endangered Species

Act was reauthorized under a compromise

bill that set up a process for exempting some

Federal projects that might harm a protected

species or habitat.24

SPECIES ACT

‘Public Law 93-205, 87 Stat. 885, Dec. 28, 1973, as

amended by Public Law 94-359, 90 Stat. 911 July 12,

1976, 16 U.S,C, 1531 et seq.

216 IJ. S.C. 1531(b). These treaties include the Convention on International Trade in Endangered Species of

Wild Fauna and Flora and the Convention on Nature

Protection and Wildlife Preservation in the Western

Hemisphere,

316 U.S.C. 1532(4).

4

16 U.S,C, 1532(15).

5

16 U.S. C. 1533(a)(l).

’16 U.S.C. 1533(b)(l).

7

16 U.S.C. 1538(a).

616 U.S.C. 1532(14).

’16 U.S.C. 1533(f)(3).

’

0

16 U,S.C. 1537.

llNationa] Wi]d]ife Federation v. Coleman, 529 F. 2d

369 (5th Cir. 1976) cert. denied, 97 S. Ct. 489 (1976). I-Ii]]

v. TVA, 549 F.2d 1064, 1071 (6th Cir. 1978) abstracts

National Wildlife Federation v. Coleman as follows:

The welfare of the Mississippi Sandhill Crane was

threatened by the future construction of a 5.7-mile segment of Interstate Highway 1-10 scheduled to traverse the

Crane’s designated critical habitat. Only 40 Sandhill

Cranes are known to exist. Based on the weight of the evidence, the Fifth Circuit reversed the district court’s denial

of injunctive relief and remanded the case with instructions that an injunction issue halting activities which

might jeopardize the continued existence of the Mississippi Sandhill Crane or destroy or modify critical habitat.

The injunction is to remain in effect until the Secretary of

the Interior determines that modifications to the project

will bring it into compliance with the Act.

In National Wildlife Federation v. Coleman, as in I-IiII,

the Department of the Interior had objected to the agency decision to continue with a project. Izsierra C]ub v. Froeh]ke, 534 F. 2d. 1289 (5th Cirj

1976). This case involved the alleged impact of construction of the Meramec Park reservoir by the Corps

of Engineers on the Indiana bat. A request for injunctive relief was denied on the grounds that the Sierra

FOR ENDANGERED

Club had failed to meet its “burden of showing that the

action of the Corps had jeopardized or would jeopardize the continued existence of the Indiana bat. ” Id. at

1305.

‘

3 See Sierra Club v. Froehlke, 534 F.2d 1289, 1304.

lqHi~] v. Tennessee Valley Authority, 549 F.2d. 1064

(6th Cir. 1977), The Tellico Dam—a concrete and earthfill dam near the mouth of the Little Tennessee River—

was originally approved by Congress in 1966. It had

been the subject of two previously unsuccessful court

challenges under the National Environmental Policy

Act alleging defects in the environmental impact statement. In August 1973, a University of Tennessee ichthyologist discovered a hitherto unknown species of fish,

the snail darter (Percina Zmostoma tanasai) thriving in

the Little Tennesse River. It is a 3-inch, tannish, bottomdwelling member of the perch family that feeds on

freshwater snails. The river not only provides a full

supply of food, but also, because it is free-flowing,

maintains, through the aerating action of its rapidly

moving currents, the high oxygen levels required to sustain this species. The snail darter’s range appears to be

wholly confined to a 17-mile stretch of the Little Tennessee. TVA searched approximately 70 rivers in Alabama and Tennessee without finding any more specimens of this species. The agency also attempted, unsuccessfully to transplant some specimens to a similar

river.

On Nov. 10, 1975, the Secretary of the Interior designated the snail darter an endangered species, 50 CFR

17.ll(i), 40 F.R. 4705 (Nov. 10, 1975). In April of 1976,

the U.S. Fish and Wildlife Service designated river

miles 0.5 to 17 as the critical habitat of the snail darter.

50 CFR 17.61, 41 F.R, 13926. The Tellico Dam, over 80

percent complete, was scheduled to have been completed in January 1977.

‘sHill v. TVA, 549 F.2d, at 1069,1070.

“Id. at 107o.

‘71d. at 1074.
—

164 ● Analysis of Laws Governing Access Across Federal Lands

‘eId. at 1070. The Department of the Interior defini- z198 S. Ct. 2279, 2299.

tion was set forth at 40 F,R. 17764 (1976). 2298 S. Ct. 2297.

‘eId. at 1070. 2398 S. Ct. 2302.

2

0TVA v. Hill,—U.S.—, 98 S. Ct. 2279, 57 L. Ed 2117, 24 See Environmental Study Conference, Weekly Bulle46 U. S.L.W. 4673. tin Wrapup Addendum, Oct. 16, 1978, at 3-4.
Ch. 6 Federal Land Planning and Environmental Laws ‘ 165

CLEAN

The Clean Air Act, as amended,’ establishes a national program for the regulation

of air pollution. The program is directed by

the Environmental Protection Agency (EPA).

State and local governments have primary

responsibility for the prevention and control

of air pollution at the source, subject to EPA

review. Federal land management agencies

and Indian tribes also play an important role

in determining air quality control standards

on Federal and Indian lands.

The Act applies to all areas, not just those

suffering from extreme air pollution. Its effects are most strongly felt in areas at opposite ends of the clean air spectrum: those

areas having the cleanest air and those

where air pollution presents a danger to the

public health. The latter areas—known as

nonattainment regions—are under strict regulatory controls designed to reduce levels of

air pollution. The former—generally called

nondegradation regions—are affected by a

statutory program for the prevention of significant deterioration (PSD) aimed at preserving the existing high air quality.

Mining activities, particularly those in the

Western United States and Alaska, are likely

to be affected by the PSD program because

air quality in that part of the country is

generally quite good. However, occasionally

because of mining operations, some western

areas are in nonattainment status. In addition, some mining operations and activities

associated with mining, such as smelting and

refining and fossil fuel electric generation,

are major sources of air pollution and subject

to regulation wherever located.

Regulation under the Clean Air Act is focused on the prevention and reduction of air

pollution involving five so-called “criteria

pollutants:” particulate, sulfur oxides, carbon monoxide, nitrogen dioxide, and photochemical oxidants.2 These substances, which

are known to adversely affect public health

Note: Footnotes for this section appear on pp. 177-181.

jf,-~{~ ( ) - T I - ]J

AIR ACT

and safety, are common products of industrial, commercial, and transportation activities. Based on medical information, EPA

has established national standards for the

maximum allowable concentrations of these

pollutants in air. “Primary standards” are

set at levels necessary to protect the public

health from the known adverse effects of

these pollutants. More stringent “secondary

standards” have been established for some of

these pollutants to protect the public welfare

from the known and anticipated adverse effects of a pollutant. The Clean Air Act sets

forth an exact timetable by which all areas of

the Nation are to meet primary standards for

each pollutant; secondary standards are to

be met on a more flexible schedule.

To achieve the statutory goal of reducing

the presence of the criteria pollutants below

the primary and secondary standards, the

Clean Air Act authorizes a broad array of

plans, programs, and regulatory actions. The

major elements of the program are:3

●

●

●

●

●

Establishment of national ambient air

quality standards (NAAQS) for air pollutants known to pose a risk to the public

health or welfare;

Submission by the States of implementation plans to achieve and maintain Federal air quality standards;

Review and approval of State implementation plans by the Administrator of EPA

and issuance of regulations at the Federal level to remedy any deficiencies in

State plans;

Federal emission standards for major

new industrial, commercial, and electric-generating facilities;

State programs to monitor air quality, inspect facilities, and issue permits to limit

emissions from major sources of pollution: and
166 ● Analysis of Laws Governing Access Across Federal Lands

● A program to prevent significant deterioration of air quality in areas that

exceed Federal air quality standards for

the criteria pollutants.

The regulations generated through these

programs govern all sources of air pollution,

including mining. Mining activities can be

directly and indirectly affected by several

different aspects of clean air regulation. A

State Implementation Plan (SIP) may set emissions standards for new facilities or require

existing facilities to abate present air pollution levels. Federal “standards of performance” have been promulgated for certain

large industrial facilities, setting minimum requirements for the use of pollution control

technology. Preconstruction review of new

sources of pollution is required in both nonattainment and nondegradation areas; in nonattainment areas, new sources of pollution

must use the most advanced pollution control

technology available, in nondegradation

areas, new sources, which would increase

pollution beyond specifically stated limits,

are flatly prohibited. New, as yet undefined

requirements, will be placed on sources of

pollution that affect visibility in national

parks and wilderness areas.

It is difficult to predict the exact effect the

Clean Air Act will have on mining activities or

mineral access. Not only are the major impacts of air quality regulation highly sitespecific, but the recently enacted Clean Air

Act Amendments of 1977 made major

changes in several areas that most directly

affect the mining industry. In some instances,

Federal regulations implementing those

changes have not yet been put in final form.

Changes in State regulatory programs, which

flow from the amendments, will also take time

to develop.

To understand the existing status of regulation under the Clean Air Act and the intent

and likely impact of the 1977 amendments, it

is necessary to have some background on the

implementation of the Clean Air Act Amendments of 1970 and the problems which arose

under that law.

IMPLEMENTATION OF THE CLEAN

AIR ACT AND THE 1977

AMENDMENTS

The 1970 amendments to the Clean Air Act

launched an ambitious program for the

abatement of air pollution by 1977. Problems

encountered in meeting this objective led to

its major revision by the amendments of 1977.

The 1970 amendments to the Act expressed the intent of Congress that air quality

standards should be adequate to protect the

public health, that they should be inviolable

and not subject to compromise, and that they

should be met according to a timetable set

forth in the Act. Compliance extensions

granted to the automobile industry by EPA,

and the 1973 energy crisis, which resulted in

shortages of low-polluting fuels, contributed

to delays in meeting the timetable. These

problems were addressed in the Energy Supply and Environmental Coordination Act of

1974 (ESECA),4 which further extended auto

emission control deadlines, and mandated the

increased use of coal and other domestic

fuels by temporarily lowering the standards

for certain industries and by extending implementation schedules.

Although, by 1975, some pollutant emissions had been reduced and some progress

made nationwide in controlling air pollution,

industrial growth and the proliferation of

automobiles more than offset whatever improvements had been made. Moreover, new

data indicated that pollutants from heavily

contaminated areas were spreading to remote rural regions, and that air pollutants

such as sulfates and sulfuric acid, for which

there were no air quality standards, were beginning to present new health hazards. EPA

reported that by 1977 only 91 of the Nation’s

247 air quality control regions had achieved

national primary air quality standards for all

of the major regulated air pollutants.5 The

Council on Environmental Quality (CEQ)

found that emissions from automobiles were

increasing at a rate of 4.6 to 4.9 percent per

year, and that emissions from stationary
Ch. 6 Federal Land Planning and Environmental Laws ● 167

sources were contributing progressively increasing proportions to the pollutant load in

the ambient air. For example, the total

nitrogen dioxide emissions from powerplants

were increasing at an annual rate of 6.9 to

7.4 percent.’ A study conducted for Congress

by the National Academy of Sciences concluded that safety margins associated with

ambient air quality standards were only

marginally adequate; that about 40 million

persons could be classified as susceptible to

unhealthy air; and that an estimated 15,000

excess deaths were caused by air pollution

annually, 4,000 of them directly attributable

to automobile emissions.’ Additional field

tests conducted by individual States showed

that damage linked directly to industrial

pollution, which extended hundreds of miles

beyond the sources of emissions, was reducing yields in forests and other crops in some

regions by as much as 75 percent.

This last finding was particularly significant because the courts had interpreted the

Clean Air Act as requiring the protection of

air quality in areas that were cleaner than

the national standards.’ In response to the

courts, the EPA promulgated regulations late

in 1974, which developed a system for classifying areas with respect to allowable incremental pollution:9 Class I areas, in which

almost no increment was allowed; Class 11

areas, in which moderate increments were

allowed; and Class III areas, in which increments to the national standard were

allowed. Initially, all areas were classified as

Class II.

The 1977 amendments to the Clean Air Act

contained detailed provisions for the prevention of significant deterioration. Specified

permissible increments of sulfur oxides and

particulate were established. Certain Federal areas were immediately designated as

Class I areas, where air quality was to remain virtually unchanged. All other clean air

areas were designated Class II, thus allowing

moderate industrial growth. The States may

redesignate Class II areas as they deem appropriate, subject to procedures, such as

hearings and consultation with Federal land

managers, required in the Act.

Classification under the Clean Air Act is of

particular concern to the mineral industry in

Alaska and in the West, where there are vast

areas where air quality meets or exceeds the

national secondary standards, and where

some large conservation units have been designated as mandatory Class I areas. There

are certain other Federal land management

units that may not be redesignated as Class

III areas.

The 1977 amendments to the Clean Air Act

also contain a new section dealing with pollution controls to achieve visibility goals for

certain Federal areas where visibility has

been identified as an important value. These

areas are to be studied and any necessary

measures taken to achieve the established

visibility standards. In addition, the 1977

amendments extended the deadlines for

meeting the EPA NAAQS from mid-1977 to

December 31, 1982, for sulfur oxides, nitrogen dioxide, and particulate matter, and to

December 31, 1987, for carbon monoxide and

photochemical oxidants.

REGULATION UNDER THE

CLEAN AIR ACT

Mining activities are governed by Title I of

the Clean Air Act, which covers air pollution

from stationary sources. Unlike Title 11 of

the Act, which established Federal controls

on automobile emissions, Title I operates

through a series of regulatory strategies,

some developed and enforced at the State

level, some at the Federal level, and some

within specialized local units of government

with responsibility for air pollution control.

Furthermore, under Title I, the type of regulation applied to nonvehicular sources of pollution lacks the exact and all-encompassing

character of auto pollution regulation. Each

automobile has a federally assigned exact

emission limit it must meet, these limits are

set forth years in advance and they are the
168 ● Analysis of Laws Governing Access Across Federal Lands

only air pollution requirements placed on

autos.

Stationary sources 10 rarely have exact and

foreseeable limits placed on them (new

source standards of performance are an exception). Pollution restrictions are determined by the location of a source, by what

other sources of pollution already exist in an

area, by whether a source is new or old, by

which criteria pollutant, if any, it emits and

by whether an area is in either a nonattainment or a nondegradation region. Depending

on the type of facility and its location, pollution regulations may be imposed by a State or

local unit of government, by EPA, or by all

three. On occasion, the emissions of one pollutant will be subject to a certain level of control, e.g., a requirement that emissions limitation technology be at least as good as that

used anywhere in the country; and the emissions of another pollutant will be controlled

under a totally different regimen or effectively uncontrolled.

Mineral access is affected by several important elements of the clean air regulatory

program. These include: the establishment of

NAAQS of performance; prevention of significant deterioration; restrictions on nonattainment areas; and the visibility program. Each

of these will be discussed below. Where appropriate there will be discussion of the roles

of Federal land managers in pollution control

and in analysis of State and local regulation

in Alaska. All section references are to the

Clean Air Act.

NATIONAL AIR QUALITY

STANDARDS

Section 109 provides for the development

of national air quality standards for major

pollutants. Two types of ambient air quality

standards are designated:

1. Primary standards, which establish the

level of air quality necessary with an

adequate margin of safety to protect

human health.

Z. Secondary standards, which establish

levels necessary to safeguard values

pertaining to public welfare including

plant and animal life, visibility, buildings, and materials.

National ambient air quality standards have

been established for the following pollutants:

carbon monoxide, sulfur dioxide, nitrogen dioxide, particulate matter, hydrocarbons, and

photochemical oxidants. 11 (A standard is being developed for lead.) In each case, the

standard gives the maximum concentration

allowed during a given time period, and frequently places a limit on the number of times

that the concentration can be exceeded

within a given time period.

Classification of an area with respect to

the ambient air quality for each pollutant has

important consequences. The Nation is divided into 247 air quality control regions

(AQCR) for the purpose of managing pollution

control programs at the local level. Compliance with an NAAQS is generally measured

on an ACQR basis, although smaller area designations are permitted by EPA for some

pollutants where they form an appropriate

basis for control of the pollutant. These designations are extremely significant. Areas

that are found by EPA to be in nonattainment

status are subject to a particular set of requirements under part D of the Act. Areas

that meet or exceed standards are subject to

the PSD regulations set forth in part C of the

Act. Classification of a large area on the

basis of a highly localized condition could

have the effect of placing inappropriate and

demanding requirements on areas that did

not need or deserve them.

Alaska is divided into four AQCRS.

12 A l l

four regions exceed the national standards

for particulate, oxidants, nitrogen oxides,

and sulfur oxides. The cities of Fairbanks and

Anchorage (but not the rest of the two AQCRs

in which they are located) are nonattainment

areas for carbon monoxide while the rest of

the State exceeds the national standards. 13

Thus Fairbanks and Anchorage will be both

nonattainment and nondegradation areas,
Ch. 6 Federal Land Planning and Environmental Laws “ 169

while the rest of the State will be a nondegradation area for all pollutants. Similarly much

of Arizona has nonattainment status for particulates and oxidants, while the whole State

exceeds national standards for nitrogen dioxide and all but two counties exceed the standard for carbon monoxide. 14

While an attainment or nonattainment

status for an area has an extremely important regulatory impact on existing sources of

pollution, it has substantially less importance

in the regulation of new sources. With the

passage of the 1977 amendments, almost

every new source of pollution will undergo a

stringent preconstruction review regardless

of whether it is located in an attainment area

or a nonattainment area. The preamble to the

final rule setting forth attainment status

designations indicates three reasons why this

will happen:15

First, new sources, wherever they propose

to locate, must be reviewed for their impact

on all nearby areas as well as that in which

they would locate. If an area on which a new

source would impact is designated differently than the one in which it is located, the

designation of the latter would not necessarily determine the rules to which the source

would be subject, Second, PSD rules apply in

any area in which at least one NAAQS is attained, and since virtually every area in the

country shows attainment for at least one

pollutant, the PSD review will be a requisite

virtually everywhere. Finally, case-by-case

new source review is necessitated to account

for the possibility that an area with a particular designation may encompass “pockets” which do not fit the designation,

STATE IMPLEMENTATION PLANS

Section 110 requires each State to submit

an implementation plan that sets forth the

steps it will take to meet both the primary and

the secondary standards” for each pollutant

that is subject to an NAAQS. The plan must

show that it will meet the primary standards

within the statutory time limit and the secondary standards within a reasonable time

thereafter.

A State Implementation Plan (SIP) cannot

be approved unless the State has the legal

authority to:17

1.

2.

3.

4.

5.

6.

Adopt emission standards and limitations;

Enforce laws and regulations and seek

injunctive relief;

Reduce pollution emissions on an emergency basis;

Prohibit the construction or operation of

any source that will prevent either the

attainment or the maintenance of any

air quality standard or that will interfere with resources to prevent significant deterioration;

Obtain all necessary information; and

Require owners and operators of stationary sources to install emission monitoring devices.

Every implementation plan must indicate

how these legal authorities will be used in executing a control strategy for each pollutant,

Compliance schedules for the gradual abatement of major existing sources of pollution

are central to these control strategies. State

and local officials are primarily responsible

for making decisions about the amount that

pollution must be reduced by existing facilities. The EPA has the authority to disapprove

compliance schedules that, owing to the timing of extensions, prevent attainment or

maintenance of air quality standards. For the

most part, however, it is up to the State to

decide the mix of sources to be abated, to

what extent, and in what period of time.

Within the framework of NAAQS and the

statutory time period, the State has a choice

of options. (When there is, for example, a

single large emitter that causes the standards

to be violated, these options obviously become

limited.) A State can also decide how much to

reduce pollution below the existing levels in

order to improve the air quality sufficiently to

allow for new industry and development.

The timetable for meeting NAAQS in the

Clean Air Act of 1970 called for attainment in
170. Analysis of Laws Governing Access Across Federal Lands

most regions by 1975, with no extensions

beyond 1977. Not only were these deadlines

generally unmet, but EPA had little effective

authority to enforce them. By 1977, only

about 40 percent of all AQCRs were meeting

the requirements for particulate and photochemical oxidants, and about 20 to 25 percent did not achieve the standards for sulfur

dioxide and carbon monoxide.18

Congress responded by extending the statutory compliance dates for particulate,

nitrogen dioxide, and sulfur oxides until

December 31, 1982, and for carbon monoxide

and photochemical oxidants, until December

31, 1987. In addition, stricter limits were

placed on such activities as the construction

of new stationary sources. One provision of

the 1977 amendments19 makes it mandatory

for State plans to include an enforceable permit program for regulating the construction,

modification, or operation of any major stationary source in areas that are not in an attainment status or that have pollution levels

above the national standard.2o

The States are responsible for formulating

implementation plans, but if a plan is deemed

inadequate, the Administrator of the EPA has

the authority to promulgate a plan.21 In practice, he will normally approve a plan “with

exceptions, and only issue whatever provisions are needed to meet specific deficiencies.22 His right to promulgate plans is limited

to those regulatory aspects where he can rely

on authorities granted by the Act; and while

he can disapprove any nonregulatory aspect

of a plan, he cannot issue substitute provisions. 23 In other words, if the Administrator

disapproves of such elements of the plan as

numbers, dates, procedures, and sampling

methods he can change them. But if, for example, he finds that a State agency lacks a

particular needed authority, or even that

there is no proper State agency, he cannot invest the existing agency with the missing

power or create a new agency. He can, however, assume the regulatory function, e.g., require that permits be filed with EPA.

The siting of mining operations and associated primary-processing and electric-generating facilities could be constrained in some

areas by SIP provisions for attaining and

maintaining NAAQS. For example, in areas

where the standards for particulate matter

are frequently exceeded owing to natural

phenomena such as duststorms (these occur

in Alaska and in parts of the West), additional sources of high dust generation from activities such as surface mining or mine road construction and use may be restricted.24 The development of mine-associated primary-processing plants and electric-generating facilities must satisfy emission standards set forth

in the SIP. Those portions of the SIP that deal

with preconstruction review of new sources

most directly affect the mining industry.

PRECONSTRUCTION REVIEW OF

MAJOR NEW STATIONARY

SOURCES

New facilities, buildings, structures, or installations are indicative of industrial development and commercial growth. However,

they are also potential emitters of air pollution. The Clean Air Act is intended to encourage, and if need be compel, the builders

of major sources of pollution25 to use the most

advanced technology for pollution control. If

successful, this will replace existing highpollution installations with a generation of

low-pollution facilities and provide some leeway for future industrial expansion, without

imperiling air quality.

The control of new sources is accomplished

by preconstruction review. This is generally

undertaken by the State or other local government unit that is responsible for the implementation of air quality plans. There are four

different types of preconstruction review:

a. Review of new sources to determine

their effect on attainment and maintenance of NAAQS;

b. Review of new sources for which new

source standards of performance have

been established;
Ch. 6 Federal Land Planning and Environmental Laws . 171

c. Review of new sources in a nonattainment area, where the air does not

satisfy the NAAQS; and

d. Review of new sources in a nondegradation area, where the air is cleaner

than the NAAQS.

All four types of review take place in Alaska.

The first three are discussed in this section.

Preconstruction Review for Effects on

Attainment and Maintenance

EPA regulations require preconstruction

review of all new sources that might jeopardize the maintenance of primary and secondary standards.26 As noted earlier, the Act requires that any SIP exhibit adequate State

authority to prevent the construction of a

source that would interfere with the attainment or maintenance of an air quality standard.

In Alaska, preconstruction review is accomplished by means of a permit system.27 A

permit is required for any facility that is

capable of emitting 25 tons per year of sulfur

oxides or particulate, or 100 tons per year of

nitrogen dioxide, carbon monoxide, or hydrocarbons; or any mercury retort; or any fuelburning electric-generating facility of more

than 250 kilowatts capacity.

Before either building or modifying any

such facility, a permit applicant must submit

plans and specifications with the following information: 28

1.

2.

3.

4.

5.

Two sets of blueprints;

Maps of the immediate vicinity;

An engineering report outlining methods

of operation, quantity and source of material processed, use and distribution of

processed materials; and a process flow

diagram indicating points of emission,

including estimated quantities and types

of contaminants emitted;

A description of any air quality control

device;

An evaluation of the effect on surrounding ambient air; and

6. Plans for emission reduction during a

pollution alert.

A permit will not be granted unless it is

shown that the source will not interfere with

the maintenance of any ambient air quality

standard or violate any State air quality

regulation.

A second type of new source review relates

to so-called indirect sources of pollution.

These are sources—like stadia, garages, airports, and highways—which attract mobile

sources of pollution, mainly automobiles.

Alaska has never adopted regulations for the

review of indirect sources.29 The 1977 amendments severely restricted the authority of the

Administrator to require such review.30 While

a State may choose to undertake indirect

source review, the Administrator cannot require any such plan or promulgate plans or

regulations including such a program. The

only exception is that the Administrator may

promulgate regulations for an indirect source

review of federally funded airports and

highways and federally owned and operated

indirect sources.

Preconstruction Review of Sources for

Which New Source Standards of

Performance Have Been Established

A State must perform a different preconstruction review for that class of stationary

sources for which standards of performance

have been established pursuant to section

111 of the Act.31 Before these sources can be

built or modified, it must be shown that, in addition to not interfering with the attainment

or maintenance of any standard, they also

make use of the best available control technology for reducing pollution.

To prevent States from attracting new industry by offering “pollution havens, ” Congress excluded control of these major air

pollution sources from State implementation

and directed EPA to set national standards.

These EPA standards cover such miningrelated sources as coal preparation plants,

smelters, and electric-generating plants. 32

Controversy related to mineral development
172. Analysis of Laws Governing Access Across Federal Lands

—

has centered on smelter and utility regulations, particularly because of the high cost of

installing pollution control equipment.

The 1977 amendments established a process by which the Administrator must, within

4 years, promulgate standards for all other

major stationary sources emitting pollution

that may contribute significantly to air pollution. 33 It is possible that these new standards

could include many other processes associated with mineral extraction, refining, and

use.

Preconstruction Review in

Nonattainment Areas

There are many AQCRs in nonattainment

status with respect to one or more criteria

pollutants (including two such instances in

Alaska). For this reason, it would be impractical to forbid all new development in nonattainment areas. On the other hand, it would

be both anomalous and economically discriminatory if complying areas were more restricted than nonattainment areas with

respect to new source construction—a condition that may well have occurred in the recent past. The 1977 amendments added a

new section to Title I of the Act that deals

specifically with the problem of development

in nonattainment areas.34

This section extends the deadlines for

meeting NAAQS to 1982 and 1987. Nonattainment areas are granted this extension only if

they develop SIPS that are somewhat more

detailed and constrained than those provided

for in section 110. The main features of such

a plan are:

1. A comprehensive, accurate current inventory of actual emissions from all

sources;

2. A vehicle emission control inspection

and maintenance program (only if seeking 1987 extension);

3. An analysis of alternative sites, sizes,

production processes, and environmental control techniques for any proposed

new source which demonstrates that

benefits significantly outweigh environmental and social costs (only if seeking

1987 extension);

4. Planning procedures involving State, regional, and local officials; and

5. A special permit provision.

The permit provision allows new source

construction only where:35

a.

b.

c.

By the time the facility commences operations, total emissions from it, existing sources, and new minor sources

will be less than the total emissions

from existing sources allowed under

the plan required by the section;

The source complies with the more

stringent of the following:

i. The most stringent emission limitation required by any State for such

a source, or

ii. The most stringent emission limitation achieved in practice by such a

source; and

The owner or operator of the source

demonstrates that all other major stationary sources owned or operated by

him in the State are subject to emission

limitations and are in compliance.

The purpose of this provision is to combine

technology-forcing requirements with adherence to a meaningful compliance schedule

and to assure that the beneficiary of such a

permit is not contributing to pollution elsewhere in the State. Failure to observe the

stringent conditions of the implementation

plan will result in the loss of both air pollution

grants and Federal highway funds.36

Citizen Suits on Preconstruction Review

State permits for construction of new stationary sources are subject to judicial review

through citizens suits authorized by section

304 of the Clean Air Act.37 Any citizen may

challenge, in Federal court, the issuance of a

State permit for the construction of a new

source that will violate ambient air quality
Ch. 6 Federal Land Planning and Environmental Laws ● 173

standards. In order to prevail in the action,

the plaintiff must show: (1) that the State

review did not satisfy procedural requirements, e.g., conducting a review before construction started; (2) that the preconstruction

review indicated that air quality violations

would occur, but the permit was granted

anyway; or (3) that the technical data (calculations and dispersion models), on which the

State relied in determining that no violations

would occur were incorrect.38 A citizen may

not sue for damages, but to enjoin an illegal

act or to enforce an administrative authority

to carry out a statutorily mandated action (in

legal terms, a nondiscretionary duty).39

PREVENTION OF SIGNIFICANT

DETERIORATION

The development of measures to prevent

the significant deterioration of air quality in

existing clean air or nondegradation regions

has been a controversial chapter in the Federal implementation of the Clean Air Act. In

December 1974, the EPA issued final regulations to prevent the significant deterioration of air quality in areas cleaner than

the NAAQS. These regulations were issued

as a result of a 1973 Supreme Court decision40

affirming lower court decisions that the Act

intended not only that polluted air be up

graded to human health-related national

standards, but also that air in regions cleaner

than those standards should be protected.

Under these regulations, the States were required to classify areas that met or exceeded

national primary or secondary standards as:

Class I where only a very small annual increment of degradation was allowed; Class II

where a moderate annual increment was allowed; or Class III where degradation to national standards was permitted.

Opponents of the Court decision and the

significant deterioration regulations argued

that it was not the intent of Congress under

the Clean Air Act to address any areas where

national primary and secondary standards

are being maintained. Advocates of industrial

development, mining interests, and electrical

utilities charged that significant deterioration regulations will unduly restrict the Nation’s continuing economic development.

They argued that air pollution levels in existing “clean” areas should be permitted to

increase to the national ambient air standards.

The Clean Air Act Amendments of 1977 expanded the nondegradation program and generally tightened the standards for prevention

of significant deterioration. The goals of the

nondegradation amendments are:41

1. To protect public health and welfare from

any actual or potential adverse effect,

which in the Administrator’s judgment,

may reasonably be anticipated to occur

from air pollution or from exposures to

pollutants in other media, which pollutants originate as emissions to the ambient

air, not withstanding attainment and

maintenance of all national ambient air

quality standards;

Z. To preserve, protect, and enhance the air

quality in national parks, national wilderness areas, national monuments, national

seashores, and other areas of special national or regional natural, recreational,

scenic, or historic value;

3. To ensure that economic growth will occur

in a manner consistent with the preservation of existing clean air resources;

4. To assure that emissions from any source

in any State will not interfere with any

portion of the applicable implementation

plan to prevent significant deterioration

of air quality for any other State; and

5. To assure that any decision to permit increased air pollution in any area to which

this section applies is made only after

careful evaluation of all the consequences

of such a decision and after adequate procedural opportunities for informed public

participation in the decisionmaking process.

The amendments further provide that all SIPS

must contain emissions limitations and other

measures necessary to prevent the significant deterioration of air quality in each

region which, on the basis of available information, cannot be classified for ambient air
— — — — —

174 ● Analysis of Laws Governing Access Across federal Lands

quality levels of particulate or sulfur oxides;

or which has ambient air quality levels above

any national primary or secondary air quality

standards (other than for sulfur oxides or

particulate matter); or for which there is insufficient information to be classified as not

meeting such national primary standards. 42

All existing international parks, national wilderness areas of over 5,000 acres, national

memorial parks of over 5,000 acres, and national parks of over 6,000 acres were immediately designated as Class I areas, and their

status cannot be changed. There are 158

mandatory Class I areas, 43 four of which are

in Alaska: Mount McKinley National Park,

1,939,493 acres; Bering Sea Wilderness,

41,113 acres; Simeonoff Wilderness, 25,141

acres; and Tuxedni Wilderness, 6,402 acres.

Other areas previously designated as Class I

under the EPA regulations promulgated

before the 1977 amendments were also immediately designated as Class 1. 44 These areas,

however, may be redesignated by the States

under procedures set forth in the Act. All

other areas, (identified under sections 107(d)

(1)(D) or (E)) will be Class II and maybe redesignated as provided.

The amendments specify the maximum allowable increase in concentration for sulfur

oxides and particulate matter (in micrograms

per cubic meter) for each class. A ceiling was

established

45 for other air pollutants. The

maximum allowable concentration in any

nondegradation area must not exceed a concentration for each pollutant for each period

of exposure, equal either to the concentration

permitted under the national secondary ambient air quality standard or to the concentration permitted under the national primary air

quality standard, whichever is lower.

The Governor of each State with an EPA

approved implementation plan may, after

holding public hearings, issue orders excluding certain pollutants from being counted

in determining compliance with nondegradation standards. These excluded pollutant concentrations include: stationary source emissions resulting from converting from the use

of natural gas or petroleum products under

orders issued under provisions of the Energy

Supply and Environmental Coordination Act

of 197446 or from a natural gas curtailment

plan; particulate matter attributable to construction or other temporary emissions activities; and emissions from new sources outside the United States. Such orders by State

Governors become effective after submission

to and approval by the EPA Administrator.

The amendments also provide that, except

for lands within the boundaries of Indian

reservations, a State may redesignate any

areas as Class I that it deems appropriate.

Other Federal areas may be redesignated

only as Class I or Class 11. These include:

a.

b.

Any national monument, national primitive area, national preserve, national

recreation area, national wild and scenic river, national wildlife refuge, or

national lakeshore exceeding 10,000

acres in size;47 a n d

Any national park or wilderness area

exceeding 10,000 acres, and established after the enactment of the Clean

Air Act Amendments of 1977.48

Most of the large blocks of Alaska Lands

that would be transferred into conservation

units by pending legislation could be redesignated by the State. They are not mandatory

Class I areas. They are now and will on transfer be Class II lands and they may not be

designated as Class III under any conditions. They are not required to be designated

Class I.

Any other clean air areas may be redesignated as Class III if:49

1. The Governor specifically approves the

redesignation after consultation with appropriate legislative representatives

and with final approval of local government units representing a majority of the

residents of the area to be redesignated;

2. The redesignation will not raise or contribute to any pollutant level to exceed

the maximum allowable increment or
Ch. 6 Federal Land Planning and Environmental Laws ● 175

ceiling concentration permitted under

classification of any other area; and

3. Other procedural and substantive requirements for redesignation under

State and Federal law are satisfied.

The Clean Air Act amendments set forth

requirements for State redesignation procedures. Prior to redesignation of any area as

Class I, II, or III, the State must:50

(i)

(ii)

Have an approved SIP;

Prepare a satisfactory description and

analysis of economic, social, health, environmental, and energy effects of the

proposed redesignation, and make such

analysis available to the public;

(iii) Require redesignation authorities to review and examine the effects document;

(iv) Provide public notice and public hearings in areas to be redesignated and

areas affected by redesignation;

(v) Provide that the plans of any new or

modified major emitting facility that

may be permitted to be constructed or

operate under Class III designation only, must be made available to the public

prior to the hearing and redesignation

pursuant to regulations issued by the

EPA; and

(vi) Before public notice and hearing, notify

the appropriate Federal land manager

if a proposed redesignation includes

any Federal lands, and allow adequate

opportunity for comment and recommendations (not more than 60 days).

The State must publish any inconsistency between the redesignation and the

recommendations of the Federal land

manager with the reasons for such

inconsistency.

The EPA Administrator may disapprove any

redesignation only if he finds, after public

notice and hearing, that the procedural requirements were not satisfied. 51

Preconstruction Permitting of Major

Emitting Facilities

Section 165 of the Clean Air Act,52 a s

amended, requires that any major emitting

facility in a nondegradation area on which

construction is started after the passage of

the 1977 amendments must obtain a permit.

The applicant must demonstrate that emissions from the new facility will not exceed or

contribute to air pollution in excess of the

maximum allowable concentrations for any

pollutant in any clean air area, more than

once per year, nor exceed NAAQS or other

applicable emission control standards issued

under the Clean Air Act in any AQCR.53

The applicant for the proposed new facility

must utilize the best available control technology for each regulated pollutant either

emitted or resulting from the facility. Appropriate monitoring procedures must be carried out to measure the impacts of emissions

in affected areas. The air quality impacts

arising from any growth associated with such

a facility must also be analyzed. Permit applications are to be granted or denied within

1 year after the completed application has

been filed. A review must include the required analysis, consultation with appropriate Federal officials, and public notice and

hearing.

For Class I areas, the permit must have the

approval of the appropriate Federal land

manager. A permit will be issued if it has

been shown that the proposed emissions will

not adversely affect the air quality and

related values of the Federal Class I area. A

permit may also be issued for an emitting

facility that would exceed the maximum

allowable increments if the Federal land

manager certifies that the emissions would

have no adverse impact on the values of the

Class I area.

The permit applicant may request a variance from the State Governor if a Federal

land manager refuses a certification that the

emissions from a proposed facility will have

no adverse impact on the air quality and related values of a Federal Class I area even
176 ● Analysis of Laws Governing Access Across Federal Lands

though the emissions would cause or contribute to concentrations that exceed Class I

maximum allowable increments. The applicant must demonstrate, and the Governor

must find, that the proposed facility cannot

be built without the variance, and that in

Federal Class I mandatory areas, the variance will not adversely affect the air quality

in the region. Before granting a variance, the

Governor must consider the Federal land

manager’s recommendations and obtain his

concurrence. If the Governor recommends a

variance for a Federal mandatory Class I

area contrary to the recommendation of a

Federal land manager, both the Governor’s

recommendation and that of the Federal land

manager are to be transmitted promptly to

the President. The President may approve the

variance if he finds that it is in the national

interest. He must act in 90 days to either affirm or deny the variance, and his decision is

final and nonreviewable.54

Any facility operating under a variance

may exceed the maximum allowable increment for sulfur oxides on not more than 18

days per year, but those emissions may not

exceed statutorily specified numerical limits. 55 The 1977 amendments set specific numerical maximum allowable increases for

sulfur oxides and particulate matter. Procedures for establishing regulations for other

pollutants are set forth in section 166(a) of

the amended Clean Air Act.56

Within 2 years of enactment of the 1977

amendments, EPA is to propose regulations

for preventing significant deterioration

resulting from nitrogen oxides, hydrocarbons, carbon monoxide, and photochemical

oxidants. These regulations would not go into

effect for 1 year. At the end of that year, a

revision of SIPS would begin unless there is

congressional action to the contrary.

The Administrator is required to report to

Congress if he finds that establishing and implementing regulations to prevent significant

deterioration caused by the criteria pollutants would present special difficulties or

be impractical. This report does not delay the

Administrator’s duty to proceed with the regulations. The States may adopt strategies

other than increments if they accomplish the

purpose of maintaining air quality. The proposed EPA regulations will provide:

a. Specific numerical measures against

which permits may be tested;

b. A framework for stimulating improved

control technology;

c. Protection of air quality and related

values; and

d. Fulfillment of the goals set forth in the

purposes provision of the Act.

Regulations for new air quality standards are

to be followed within 2 years by measures to

prevent significant deterioration. 57 The States

and the EPA Administrator are authorized to

take enforcement action to prevent the construction of any major emitting facility that

does not meet the permitting requirements

and that is proposed to be constructed in a

“clean air” area not subject to an approved

implementation plan.58

DUTIES OF THE FEDERAL LAND

MANAGER

Federal land managers59 and the Federal

official directly managing Federal lands have

an “affirmative responsibility” to protect air

quality and related values, such as visibility,

for any Federal land in a Class I area.60 Under

the 1977 amendments to the Clean Air Act,

Federal land managers are afforded an opportunity to comment and make recommendations on proposed State redesignations.61 Federal land mangers and Federal officials with

direct responsibility for managing Federal

lands are notified by the EPA of any permit

application for a major emitting facility that

may affect Federal lands within a Class I

area.

62 The Federal land manager or official

must notify the EPA Administrator if the

emissions from the proposed facility would

cause or contribute to a change in the air

quality in the area and identify the potential

adverse impacts of such a change.63
Ch. 6 Federal Land Planning and Environmental Laws ● 177

A permit for a major emitting facility may

be denied if emissions would exceed the maximum allowable increment for a Class I area,

or would have an adverse impact on air quality in the Federal Class I area even though the

maximum allowable increase is not exceeded.

64 If, however, the Federal land manager certifies that the facility would not

adversely affect the air quality and related

values of the Federal Class I area, a permit

may be issued despite the fact that the emissions may exceed the maximum allowable increases for sulfur oxides and particulates. 65

In such circumstances, the Clean Air Act

Amendments specify alternative maximum

allowable increases for these pollutants,

which cannot be exceeded.66

The Federal land manager must review all

national monuments, primitive areas, and national preserves and recommend appropriate

areas for redesignation as Class I where air

quality and related values are important attributes of the area.67 The Federal land manager shall report to Congress and the State in

1 year, and shall consult with the State before making such recommendation.

Under section 169A, the Department of the

Interior must prepare an inventory of all

mandatory Class I areas where visibility is an

important value.

68 The Secretary of the Interior has found that visibility is an important

value in 156 of the 158 mandatory Class I

areas (the two exceptions are Bradwell Bay,

Fla., and Rainbow Lake, Wis., both wilderness areas).

69 The inventory has been forwarded to the EPA administrator who will

use it in developing a report and recommendation to Congress.70 It will also be used for

promulgating regulations to meet the statutory goal of “prevention of any future and

remedying of any existing, impairment of visibility in mandatory Federal Class I areas”71

resulting from manmade pollution.

By February 1980, the EPA Administrator

is required to promulgate regulations to prevent future, and to remedy existing, impairments of visibility in mandatory Class I areas.

The regulations shall provide guidelines to

the States and require revision of implementation plans to include requirements for installation of the best available retrofit

technology on existing sources that are less

than 15 years old.72 Any exemption from the

requirement for retrofit technology requires

the approval of the appropriate Federal land

manager. 73

FOOTNOTE REFERENCES FOR CLEAN AIR ACT

‘The Clean Air Act, 42 UiS.C. 74OI et seq. (redesignated from 42 U.S.C. 1857 et seq. ) includes the Clean

Air Act of 1963, Public Law 88-206 (Dec. 17, 1963], and

amendments made by the Motor Vehicle Air Pollution

Control Act, Public Law 89-272 [Oct. 20, 1965), the

Clean Air Act Amendments of 1966, Public Law 89-675

(Nov. 21, 1967), the Clean Air Act Amendments of 1970,

Public Law 91-604 (Dec. 31, 1970), the Comprehensive

Health Manpower Training Act of 1971, Public Law

92-157 (Nov. 18, 1971), the Energy Supply and Environmental Coordination Act of 1974, Public Law

93-319 (June 22, 1974), and the Clean Air Act Amendments of 1977, Public Law 95-95 (Aug. 7, 1977). The major components of the Clean Air Act are the Clean Air

Act Amendments of 1970 and the Clean Air Act Amendments of 1977.

‘Section 108 of the Clean Air Act, as added by Public

Law 91-604, section 48(a), 84 Stat. 1678, Dec. 31, 1970,

directed the Administrator of EPA to publish a list of

pollutants which had an adverse effect on the public

health and welfare and whose presence in the ambient

air resulted from numerous or diverse mobile or stationary sources. Criteria documents were prepared

reflecting the latest scientific knowledge on the effect

of five pollutants on the public health and welfare. National ambient air quality standards were developed

for six pollutants associated with the criteria

pollutants. Sulfur oxides are measured by sulfur dioxide, and photochemical oxidants are measured by

ozone and hydrocarbons.

3This discussion is limited to Title I, “Air Pollution

Control and Prevention, ” and Title III, “Administration,” of the Clean Air Act. The description of programs

under the Act does not include any authorized by Title

H,’’ Emissions Standards for Moving Sources. ”

4Public Law 93-319, 88 Stat. 246, June 22, 1974, 15

U,S.C. 791-798.
178. Analysis of Laws Governing Access Across Federal Lands

5Environmental Quality-1976, Report of the Council

on Environmental Quality, p. 2.

‘U.S. Congress, House Subcommittee on Energy and

Power, Middle- and Long-Term Energy Policies and

Alternatives, Appendix, 94th Cong., 2d sess., March

1976, at 4.

7Air QuaMy and Stationary Source Emission Control,

A Report by the Commission on Natural Resources, National Academy of Sciences, prepared for the Committee on Public Works, Serial No. 94-4, (March 1975), at

5-195.

‘Sierra Club v. Ruckelshaus, 344 F. Supp. 253 (1972),

aff’d per curiam, 4 ERC 1915 (D.C. Cir. 1972), aff’d sub

nom., Fri v. Sierra Club, 412 U.S. 541 (1973).

‘EPA’s PSD policy is set forth at 40 CFR 52.21 (1977).

Some aspects of that policy have already been revised

to reflect the 1977 amendments, 43 F.R. 57459, Nov. 3,

1977, and EPA has published proposed rules to reflect

other changes made by the amendments, 42 F.R. 57471,

57479, Nov. 3, 1977.

‘“Stationary source is defined as “any building, structure, facility or installation which emits or may emit

any air pollutant, ” section 11 l(a)(3), 42 U.S.C. 7411

(a~3).

1lThe standards are set forth at 40 CFR 50.4-50,11.

‘

zThe boundaries of Alaska’s four air quality control

regions are set out at 40 CFR 81.54 (Cook Inlet” Intrastate AQCR); 40 CFR 81,246 (Northern Alaska Intrastate AQCR); 40 CFR 81,247 (South Central Alaska

Intrastate AQCR): and 40 CFR 81.248 (Southeastern

Alaska Intrastate AQCR).

13 Alaska Attainment Status, 40 CFR 81.302.

14Arizona Attainment Status, 40 CFR 81.303; attainment status for all areas may be found at 40 CFR Part

81, Subpart C—Section 107 Attainment Status Designations, 43 F.R. 8963, Mar, 3, 1978.

1S43 F,R. 8963, Mar. 3, 1978.

’“42 U.S.C. 7410.

1740 CFR 51,11,

Iaprogress in the Prevention and Control of Air pO~~Ution in 1976, Annual Report of the U.S. Environmental

Protection Agency, (1977), p. 31.

1ePublic Law 95-95, sections 108(a)(3) and (a)(4),

amending sections l10(a12)(D) and l10(aK2)(E), 42

U.S.C. 7410( aX2)(D) and 7410( aX2)(E).

Z“Compliance with this provision will require a

change in the existing permit provision of Alaska Law,

18 A,A,C, 50.120.

ZISection 11O(C)(1), 42 U.S.C, 741 O(C)(1).

zzsuch promulgations with respect to the Alaskan 1rnplementation Plan can be found at 40 CFR 52.70.

234(’J CFR 52.02, 52.06.

Z4EpA, however, has decided to exempt surface mining operations, including haul roads, from mandatory

PSD review, 43 F.R. 26397, June 19, 1978. This decision

was based on an EPA finding that particulate loadings

associated with these sources consisted predominantly

of nonrespirable particles, EPA is in the process of

gathering information to determine whether or not to

revise its overall Total Suspended Particulate (TSP)

standard to emphasize the risks to human health associated with smaller, respirable particulate. See EPA,

Fugitive Dust Policy; SIP’s and New Source Review,

Aug. 1, 1977. The EPA decision to exempt fugitive dust

from suface mining operations and haul roads from

mandatory PSD review has been challenged in court,

ZsThe 1977 amendments define, for the first time in

the statute, major sources, as follows:

(j) Except as otherwise expressly provided, the

terms ‘major stationary source’ and ‘major emitting facility’ mean any stationary facility or source

of air pollutants which directly emits, or has the

potential to emit, one hundred tons per year or

more of any air pollutant (including any major

emitting facility or source of fugitive emissions of

any such pollutant, as determined by rule by the

Administrator). Public Law 95-95, section 301(a),

adding a new section 302(j) to the Act, 91 Stat,

770.

Throughout the Clean Air Act, requirements placed

on new major sources also apply to modifications and

additional construction of existing facilities which are

major sources.

2

’40 CFR 51.18.

z’18 A.A.C. 50.120. The permit provisions also apply

to the operation of existing facilities.

ZI’18 A.A.C. 50.120(f).

2e40 CFR 52.78.

30Public Law 95-95, section 108(e) adding a new section l10(a~5) to the Act, 91 Stat. 695, 42 U.S.C. 7410

(aX5).

31 Standards of performance may be found at 40 CFR

60.

32 Section 111; 42 U.S.C. 1711.

s’~blic Law g5-95, section 109(a) adding a new section 11 l(f)(l) to the Act establishes this timetable, 91

Stat, 697,42 U.S.C. 741 l(f)(l).

34Public Law 95-95, section 129,91 Stat, 745.

#Section 173,42 U,S,C. 7503. ‘eSection 176, 42 U.S.C. 7506”

‘TNational Resources Defense Council, Land Use Controls in the United States, A Citizens Handbook, 1976,

pp. 44-45.

3aId. at 45.

3gId. at 64.

‘Sierra Club v. Ruckelshaus, 344 F. Supp. 253, (D.D.C.

1972), aff’d per curiam, 4ERC 1915 (D,C. Cir. 1972),

aff’d by an equally divided court sub nom. Fri v. Sierra

Club, 412 U.S. 541, (1973).

‘lThe amendments on PSD are continued in SE?ChIl

127 of Public Law 95-95 which adds chapter C to Title I

of the Clean Air Act containing new sections 160 to 169,

43 U.S.C. 7470-7479. The quoted language is in section

160,43 U.S.C. 7470,

4Z~blic Law 95-95, section 127(a) adding a new section 161 to the Act, 91 Stat, 731,42 U.S.C. 7471.

43Mandatory Federal Class I areas are listed at 42

F.R. 54760, NOV. 3, 1977.

The following list identifies those Federal lands

which are mandatory Class I areas established by the
Ch. 6 Federal Land Planning and Environmental Laws ● 179

1977 Clean Air Act Amendments. These lands may not

be redesignated. Total acreage is shown for each area.

States in parentheses indicate interstate park or wilderness areas; total acreage is listed for only one of the

States involved.

NATIONAL PARKS OVER 6,000 ACRES

Alaska—Mount McKinley 1,939,493,

Arizona—Grand Canyon 1,176,913; Petrified Forest

93,493.

California—Kings Canyon 459,994; Lassen Volcanic

105,800; Redwood 27,792; Sequoia 286,643;

Yosemite 759,172,

Colorado—Mesa Verde 51,488; Rocky Mountain

263,138.

Florida—Everglades 1,397,429.

Hawaii—Haleakala 27,208; Hawaii Volcanoes

217,029.

Idaho—Yellowstone (Wyoming).

Kentucky—Mammoth Cave 51,303.

Maine—Acadia 37,503.

Michigan—Isle Royale 542,428,

Minnesota—Voyageurs 114,964,

Montana—Glacier 1,012,599; Yellowstone (Wyoming).

New Mexico—Carlsbad Caverns 46,435.

North Carolina—Great Smoky Mountains (Tennessee).

Oregon— Crater Lake 160,290.

South Dakota—Wind Cave 28,060.

Tennessee-Great Smoky Mountains 514,757.

Texas—Big Bend 708,1 18; Guadalupe Mountains

76,292.

Utah—Arches 65,098; Bryce Canyon 35,832: Canyonlands 337,570: Capitol Reef 221,896; Zion

142,462.

Virgin Islands—Virgin Islands 12,295.

Virginia— Shenandoah 190,535.

Washington— Mount Rainier 235,239; North Cascades 503,277; Olympic 892,578.

Wyoming— Grand Teton 305,504; Yellowstone

2,219,737.

NATIONAL WILDERNESS AREAS OVER 5,000

ACRES

Alabama—Sipsey 12,646,

Alaska—Bering Sea 41,113; Simeonof 25,141: Tuxedni 6,402.

Arizona—Chiricahua National Monument 9,440;

Chiricahua 18,000; Galiuro 52,717; Mazatzal

205,137; Mt. Baldy 6,975; Pine Mountain

20,061; Saguaro 71,400; Sierra Ancha 20,850;

Superstition 124,1 17; Sycamore Canyon 47,757.

Arkansas—Caney Creek 14,344; Upper Buffalo

9,912.

California—Agua Tibia 15,934; Caribou 19,080;

Cucamonga 9,022; Desolation 63,469; Dome

Land 62,206; Emigrant 104,311; Hoover 47,916;

Joshua Tree 492,690; John Muir 484,673; Kaiser

22,500; Lava Beds 28,640; Marble Mountain

2 13,743; Minarets 109,484; Monkelumne

50,400; Pinnacles 12,952; Point Reyes 25,370;

San Gabriel 36,137; San Gorgonio 34,644; San

Jacinto 20,564; San Rafael 142,722; South

Warner 68,507; Thousand Lakes 15,695; Ventana 95,152; Yolla-Belly-Middle Eel 109,091.

Colorado—Black Canyon of the Gunnison 11,180;

Eagles Nest 133,910; Flat Tops 235,230; Great

Sand Dunes 33,450; La Garita 48,486; Maroon

Bells-Snowmass 71,060; Mt. Zirkel 72,472;

Rawah 26,674; Weminuche 400,907; West Elk

61,412.

Florida—Bradwell Bay 23,432; Chassahowitzka

23,360; Saint Marks 17,746.

Georgia— Cohutta 33,776; Okefenokee 343,850; Wolf

Island 5,126.

Idaho—Craters of the Moon 43,243; Hells Canyon

(Oregon) 193,840; Sawtooth 216,383; SelwayBitterroot (Montana) 1,240,618.

Louisiana—Breton 5,000.

Maine—Moosehorn 7,501.

Michigan—Seney 25,150.

Minnesota—Boundary Waters Canoe Area 747,840.

Missouri—Hercules-Glades 12,315; Mingo 8,000.

Montana—Anaconda-Pintlar 157,803; Bob Marshall

950,000; Cabinet Mountains 94,272; Gates of

the Mountain 28,562; Medicine Lake 11,366;

Mission Mountains 73,877; Red Rock Lakes

32,350; Scapegoat 239,295; Selway-BitterrootU.L, Bend 20,890.

Nevada—Jarbridge 64,667.

New Hampshire—Great Gulf 5,552; Presidential

Range-Dry River 20,000.

New Jersey—Brigantine 6,603.

New Mexico-Bandelier 23,267; Bosque del Apache

30,850; Gila 433,690; Pecos 167,416; Salt Creek

8,500; San Pedro Parks 41,132; Wheeler Peak

6,027; White Mountain 31,171.

North Carolina—Joyce Kilmer-Slickrock 14,033; Linville Gorge 7,575; Shining Rock 13,350; Swanquarter 9,000.

North Dakota—Lostwood 5,577.

Oklahoma—Wichita Mountain 8,900.

Oregon—Diamond Peak 36,637; Eagle Cap 293,476;

Gearhart Mountain 18,709; Kalmiopsis 76,900;

Mountain Lakes 23,071; Mount Hood 14,160;

Mount Jefferson 100,208; Mount Washington

46,116; Strawberry Mountain 33,003; Three

Sisters 199,902.

South Carolina—Cape Remain 28,000.

South Dakota—Badlands 64,250.

Tennessee-Joyce Kilmer-Slickrock (North Carolina),

Vermont—Lye Brook 12,430.

Virginia—James River Face 8,703.

Washington— Alpine Lakes 303,508; Glacier Peak

464,258; Goat Rocks 82,680; Mount Adams

32,356; Pasayten 505,524.

West Virginia—Dolly Sods 10,215; Otter Creek

20,000.
180 w Analysis of Laws Governing Access Across Federal Lands

Wisconsin—Rainbow Lake 6,338.

Wyoming—Bridger 392,160; Fitzpatrick 191,103;

North Absaroka 35 I,104; Teton 557,311; Washakie 686,584.

INTERNATIONAL PARKS

New Brunswick, Canada—Roosevelt-Campobello

2,721.

NATIONAL MEMORIAL PARKS

North Dakota—Theodore Roosevelt National Memorial Park 69,675.

44public Law 95-95, section 127(a) adding a new Section 162(a) to the Act, 91 Stat. 731,42 U,S.C. 7472 (a).

4Wublic Law 95-95, section 127(a) adding a new section 163 to the Act, 91 Stat. 732,42 U.S.C. 7473.

4615 U.S. C. 792.

4ppublic L8W 95-95, section 127(a) adding a new SeCtion 164(a)(l) to the Act, 91 Stat. 733, 42 U.S.C. 7474

(a)(l).

4Bpublic Law 95-!35, section 127(a) adding a new SeCtion 164(a)(2) to the Act, 91 Stat. 734, 42 U,S.C. 7474

(a12).

4g~blic L8W 95-95, section 127(a) adding new Sections 164(a)(2)(A), 164(a)(2)(B) and 164(a)(2)(C), 91 Stat.

734, 42 U.S.C. 7474( aX2)(A), 7474( aX2)(B), and 7474(a)

(2)(C).

Sopublic Law 95-95, section 127(a) adding a new section 164(b)(l) to the Act, 91 Stat. 734, 42 U.S.C. 7474

(b)(l).

sl~blic Law 95-g5, section 127(a) adding a new section 164(b12) to the Act, 91 Stat. 735, 42 U.S.C. 7474

(b)(2),

Szfiblic Law 95-95, section 127(a) adding a new section 165 to the Act, 91 Stat. 735,42 U.S.C. 7475.

53 Section 169 defines a major emitting facility for the

purposes of provisions relating to the prevention of

significant deterioration:

The term “major emitting facility” means any of

the following: stationary sources of air pollutants

which emit, or have the potential to emit, one hundred tons per year or more of any air pollutant

from the following types of stationary sources:

fossil-fuel fired steam electric plants of more than

two hundred and fifty million British thermal units

per hour heat input, coal-cleaning plants (thermal

dryers), kraft pulp mills, Portland Cement plants,

primary zinc smelters, iron and steel mill plants,

primary aluminum ore reduction plants, primary

copper smelters, municipal incinerators capable

of charging more than two hundred and fifty tons

of refuse per day, hydrofluoric, sulfuric, and nitric

acid plants, coke oven batteries, sulfur recovery

plants, petroleum refineries lime plants, phosphate rock processing plants, carbon black plants

(furnace process), primary lead smelters, fuel conversion plants, sintering plants, secondary metal

production facilities, chemical process plants,

fossil-fuel boilers of more than two hundred and

fifty million British thermal units per hour heat input, petroleum storage and transfer facilities with

a capacity exceeding three hundred thousand barrels, taconite ore-processing facilities, glass-fiber

processing plants, charcoal production facilities.

Such term also includes any other source with the

potential to emit two hundred and fifty tons per

year or more of any air pollutant. This term shall

not include new or modified facilities which are

nonprofit health or education institutions which

have been exempted by the State.

Public Law 95-95, section 127(a), 91 Stat. 740,42 U,S,C.

7479(l),

54Public Law 95-95, section 127(a) adding a new section 165(d)(2)(D)(ii) to the Act, 91 Stat, 737, 42 U.S.C.

7475( d12)(D)(ii).

ss~blic Law g5.g5, section 127(a) adding a new section 165(d)(2)(C)(iv) to the Act, 91 Stat. 737, 42 U.S.C.

7475( d)(2)(c)(iv).

5Tublic Law 95-95, section 127(a) adding a new section 166(a) to the Act, 91 Stat. 739,42 U.S.C. 7476.

~Tfiblic Law g5-95, section 127(a) adding a new section 166(d) to the Act, 91 Stat, 739,42 U.S.C. 7476(d).

Sapublic Law g5-95, section 127(a) adding a new section 167 to the Act, 91 Stat. 740,42 U,S.C. 7477.

Sgpublic Law 95-95, section 301(a), adding a new section 302(i) to the Act which reads: The term ‘Federal

land manager’ means, with respect to any lands in the

United States, the Secretary of the Department with authority over such lands. 91 Stat. 770.42 U.S,C. 7602(i).

‘public Law 95-95, section 127(a) adding a new section 165(d)(2)(B) to the Act, 91 Stat. 736, 42 U.S.C. 7475

(d)(2)(B).

‘*Public Law 95-95, section 127(a) adding a new section 164(b)(l)(B) to the Act, 91 Stat. 735, 42 U.S.C. 7474

(b)(l)(B).

‘

zPublic Law 95-95, section 127(a) adding a new section 165(d)(2)(A) to the Act, 91 Stat. 736, 42 U.S.C. 7475

(d](2)(A].

eJ~blic Law 95-95, section 127(a) adding a new section 165(d)(2)(C) to the Act, 91 Stat. 737, 42 U.S.C. 7475

(d)(2)(C).

“Public Law 95-95, section 127(a) adding a new section 165(d)(2)(C)(ii) to the Act, 91 Stat. 737, 42 U.S.C.

7475( d)(2)(C)(ii).

8S~blic Law 95-g5, section 127(a) adding a new section 165(d)(2)(C)(iii) to the Act, 91 Stat. 737, 42 U.S.C.

7475(d)(2)(C)(iii).

G’Public Law 95-95, section 127(a) adding a new section 164(d)(2)(C)(iv) to the Act, 91 Stat. 737, 42 U,S,C.

7475(d)(2)(C)(iv).

‘7Public Law 95-95, section 127(a) adding a new section 164(d) to the Act, 91 Stat. 736,42 U.S.C. 7475(d].

‘Public Law 95-95, section 128(a), adding a new section 169 A(aX2) to the Act, 91 Stat. 742, 42 U.S.C. 7491

(a).

@gFinal Identification of Mandatory Federal Class I

Areas Where Visibility Is an Important Value, 43 F,R,

7721, Feb. 21, 1978.
Ch. 6 Federal Land Planning and Environmental Laws ● 181

TOpublic Law 95-95, section 128(a) adding a new section 169 A(a~3) to the Act, 91 Stat. 742, 42 U.S.C. 7491

(a~3).

71 Public Law 95-95, section 128[a) adding a new section 169 A(a~l) to the Act, 91 Stat. 742, 42 U,S.C. 7491

(all).

72 Public Law 95-95, section 128(a) adding a new section 169A(b), 91 Stat. 743,42 U.S.C. 7491(b).

73Public Law 95-95, section 128(a) adding a new section 169A(c)(3), 91 Stat. 743,42 U.S.C. 7491(c)(3).
182. Analysis of Laws Governing Access Across Federal Lands

CLEAN WATER ACT

Federal concern with water pollution

abatement dates from the Rivers and Harbors Act of 1899,1 which authorized the U.S.

Army Corps of Engineers to issue permits for

the discharge of material into navigable

waterways if “anchorage and navigation will

not be injured thereby. ” It was not until the

Water Quality Act of 1965, 2 however, that

Congress addressed the issue of water quality. This Act required that States adopt and

meet water quality criteria (subject to Federal approval) for interstate waters within

their boundaries. In the absence of State action, the criteria would be set by the Federal

Government, which would exercise abatement authority. This approach to pollution

control has similarities to that taken by the

Clean Air Act. The standards relate to the

results of actions by many individual pollution sources, but do not directly regulate

those sources.

The Federal Water Pollution Control Act

Amendments of 19723 (FWPCA) substantially

restructured the Federal water pollution control program. The purpose of the amendments

was to control pollution at its source by requiring water polluters to limit the amount of

effluent discharged into a body of water. The

Act establishes a permit system—the National Pollutant Discharge Elimination System

(NPDES)—to oversee the installation of specified levels of pollution abatement equipment for all point sources of pollution, regardless of the water quality of adjacent

bodies of water. (A point source is one that

discharges effluent through a conduit or

pipe.) The water quality standard program is

also continued. More stringent effluent restrictions may be imposed if the source empties into a body of water that does not meet

water quality standards.

Some mining activities constitute point

sources of pollution that require NPDES permits. Effluent limitations and standards of

performance have been established for cerNote: Footnotes for this section appear on pp. 195-197.

tain mining activities. The Environmental Protection Agency (EPA) will develop guidelines

for other categories of mining operations in

the near future.4

Many mining operations and procedures

associated with access to mineral sites, such

as roadbuilding and construction activities,

are not point sources and do not require

NPDES permits. Areawide water treatment

management programs administered by

States and other local units of Government,

pursuant to section 208 of FWPCA, could potentially affect those mining development and

operation activities that are nonpoint sources

of pollution. Because EPA originally limited

areawide plans to metropolitan areas, until

forced to extend them by court order,5 section

208 has not as yet had any effect on mining

activities. State submission of water quality

management plans was not required until

November 1, 1978.

Many activities related to mineral development such as processing, refining, and power

generating may be directly affected by the

permit system. But, because implementation

of FWPCA has been slow, it is difficult to

judge future impacts from experience during

its early years. In addition, the amendments

introduced by the Clean Water Act of 1977,6

make extrapolation difficult.

FEDERAL WATER POLLUTION

CONTROL ACT

The Federal Water Pollution Control Act

Amendments of 1972 established a complex

program to clean up the Nation’s waterways.

Where previous legislation had concentrated

on establishing broad water quality standards, 7 FWPCA sought to place individualized,

technological requirements on all polluters,

and to upgrade these requirements until the

ultimate goal of zero pollution discharge into

navigable waters would be achieved.
Ch. 6 Federal Land Planning and Environmental Laws w 183

The stated objective of the Act is “to

restore and maintain the chemical, physical,

and biological integrity of the Nation’s

waters. “a To achieve this objective, six national goals and policies are set forth:9

1.

2.

3.

4.

5.

6.

The national goal that the discharge of

pollutants into navigable waters be

eliminated by 1985;

The national goal that, wherever attainable, an interim goal of water quality which provides for the propagation of

fish, shellfish, and wildlife; and provides

for recreation in and on water, be

achieved by July 1, 1983;

The national policy that discharge of

toxic pollutants in toxic amounts be prohibited;

The national policy that Federal financial assistance be provided to construct

publicly owned waste treatment works;

The national policy that areawide waste

treatment planning processes be developed and implemented to assure adequate control of sources of pollution in

each State; and

The national policy that a major research and demonstration effort be

made to develop the technology necessary to eliminate the discharge of pollutants into the navigable waters, the

waters of the contiguous zones, and the

oceans.

FWPCA authorized Federal and State

regulatory programs and a large construction

grant program designed to meet a series of

deadlines for improving water quality contained in the Act. The EPA and the Army

Corps of Engineers have the primary Federal

responsibility for enforcement and implementation. State cooperation and planning is also

an essential component of the total effort.

Many of the water quality deadlines have

not been met. The Council on Environmental

Quality (CEQ) characterized progress under

the Act as follows :10

This period has been one of high expectation and significant frustration. Water quality has not improved as rapidly as we had

hoped, and there are still substantial delays

in fully implementing many sections of the

Act.

Two different approaches to controlling

sources of pollution are found in the Act.

They arise from the fundamental distinction,

both in legal and in practical terms, between

point and nonpoint sources of pollution. A

point source is any confined, discrete conveyance such as a pipe, a ditch, or even a floating craft. ” Point sources release a collected

stream of pollutants through sewers, pipes,

ditches, and other channels. Such streams

can be measured and regulated with some

precision. They provide a ready locus for the

application of technology to control and

purify effluents. Nonpoint sources are sites

from which there is uncollected runoff, Agricultural areas, mining operations, and construction sites are typical examples of nonpoint sources. They present highly complex

regulatory and technological difficulties, and

are subject to less stringent legal controls.

The 1972 Act established the following

regulatory scheme to control pollution from

point sources:

1.

2.

By July 1977, all dischargers other than

municipal sewage treatment plants must

have achieved the effluent limitations

based on the “best practicable pollution

control technology currently available”

(BPT), and public treatment works must

have achieved limitations based on secondary treatment .*2

By July 1983 , nonmunicipal point

sources must have in operation the

“best available technology economically

achievable” (BAT), and municipal sewage treatment plants must have installed

the “best practicable waste treatment

technology.” 13

3. Special effluent

water pollutants

vironmental and

must be met prior

standards for toxic

based solely on ensafety considerations

to the 1977 deadline.14
184 “ Analysis of Laws Governing Access Across Federal Lands

4.

5.

It

New facilities and installations must

meet standards of performance based

on the “best available demonstrated

control technology.“15

Special effluent restrictions, based on

water quality standards, must be used

whenever it becomes apparent that the

application of national standards will

not meet water quality targets in a given

basin. 16 

is estimated that the 1977 deadlines

were met by 90 percent of industrial polluters, but by only 40 percent of municipalities. 17 The control of toxic pollutants was

less effective; EPA had failed to publish toxic

effluent guidelines and was under court

order to develop regulations for 65 toxic

pollutants. 18

The failure to meet the 1977 deadlines,

coupled with new information about the effects of less stringently regulated nonpoint

sources on water quality, raised questions

about the requirement to implement strict

BAT standards by 1983. The National Commission on Water Quality—established by

section 315 of FWPCA—issued a report that

recommended extending the 1977 requirement and postponing the 1983 goals and requirements for at least 5 years. 19 Two other

aspects of the pollution control program—the

sewage treatment construction grant program and the dredge and fill permit program

administered by the Corps of Engineers (the

4041 program)—were also subjects of intense

criticism. These programs, along with the

BPT and BAT requirements, were viewed as

placing unrealistic burdens on those sources

covered by the Act.

Congress responded to many of these problems with the Clean Water Act of 1977, 2 0

which significantly amended FWPCA. The

amended law further refines the existing

regulatory scheme and places increased importance on the control of toxic effluents. On

the whole, the 1977 amendments provided

midcourse corrections rather than major

changes in goals or objectives.

PERMIT SYSTEM

Permits implement the various standards

found in the Act and in regulations; they are

also used as enforcement devices. A permit,

issued under section 402, which established

the National Pollutant Discharge Elimination

System (NPDES), is required before any pollutant (other than dredge and fill materials covered by section 4041) may be discharged from

a point source into navigable waters.

A permit requires the discharger of pollutants to meet the applicable effluent limitations, technology standards, and water quality goals. Permits are obtained through the

local EPA office or from the State, if the latter

has qualified to take over the regulatory role.

It is through the permit process that general

guidelines are transformed into individual

abatement requirements. Cancellation of permits for noncompliance is one method of enforcing the Act. Without a permit and the

concomitant right to discharge pollutants,

many industrial operations cannot be carried

out.

EPA has identified nearly 65,000 dischargers subject to the NPDES. Through

September 1976, 52,723 permits had been

issued.

21 Issuing permits on a case-by-case

basis often entails much negotiation. There

must be an opportunity for a public hearing

before a permit is issued. However, individual permits are not subject to the National

Environmental Policy Act (NEPA) and the submission of an environmental impact statement is not required.22 

A permit will require that a discharger

meet whatever guidelines EPA has established for limiting effluents from industrial

operations of that general type. As will be

discussed in the next section, EPA has established industry-by-industry limitations that

specify the maximum permissible discharges

of various pollutants associated with the

processes used in those industries. But permits do not simply recapitulate EPA effluent

guidelines; a discharger maybe subject to additional requirements to meet water quality
Ch. 6 Federal Land Planning and Environmental Laws “ 185

standards or to prevent degradation of existing water quality.

Water Quality Standards and

Nondegradation

The Water Quality Act of 1965, 23 required

the States to adopt water quality standards

for interstate waters, for the first time. Section 303 of FWPCA continued those standards; in addition, the States were required to

develop standards for intrastate waters.24 If a

State should fail to establish adequate standards for either category, EPA is authorized to

do so in its stead. Periodically, the States

must review and revise their water quality

standards. The following guidelines for State

review and revision have been established by

the EPA:25

1. The States must review their water

quality standards every 3 years and

revise them where appropriate.

2. Water quality standards must protect

the public health and welfare, and provide protection for downstream water

quality standards.

3. The States must upgrade existing water

quality standards where current water

quality supports higher uses than those

presently designated.

4. The States must upgrade existing water

quality standards to achieve the Act’s

1983 goal of fishable and swimmable

waters where attainable. Attainability is

to be determined on the basis of environmental, technological, social, economic, and institutional factors.

5. The States may downgrade existing

water quality standards only on demonstrating that:

● Existing standards are not attainable

because of natural conditions (such as

leaching from natural heavy-metal

deposits);

● Existing standards are not attainable

because of irreversible man-induced

conditions (as when known methods

●

are incapable of restoring water to

the designated use); or

The application of existing standards

would

- ‘have substantial ‘and widespread adverse economic and social

effects (such as a marked increase in

unemployment, not due to other factors, over an extensive area, for more

than 1 year).

Before a State can issue a permit for discharging a pollutant under section 402 it

must have a program for review and revision

of water quality standards.26 Once a water

quality standard is established, a State must

identify areas for which the 1977 effluent.

limitations are not sufficiently stringent to implement the applicable water quality standard.

27 For such areas, the State must determine the total maximum daily load of a pollutant that is consistent with the applicable

water quality standard, This information is

used to set more stringent permit requirements.

The water quality standards form the basis

of a program designed to prevent the degradation of presently clean waterways. The antidegradation policy has several important

elements. The regulations provide, without

qualification, that “No further water quality

degradation which would interfere with or

become injurious to existing instream water

uses is allowable.”28 Thus, if a particular

body of water in its existing condition could

be used for sport fishing, it cannot be degraded in any way that would reduce its suitability for this activity. Similarly, if a body of

water is suitable for the propagation of fish,

shellfish, or wildlife, for swimming, or for

drinking water supply, then it must remain

suitable for these and any other possible uses

for which it is now fit. This does not mean

that water quality may not deteriorate at all;

small increases in pollutant loads may not be

inconsistent with protecting a possible present use for a body of water.

With one exception, the regulations do not

permit any increase in pollutant loads in

those high-quality waters that currently ex-
ceed the levels needed to support recreation

and the propagation of fish, shellfish, and

wildlife in and on the water. That exception

permits a State to decide, after public participation, “to allow lower water quality as a

result of necessary and justifiable economic

or social development.”29 It is qualified in two

respects. The exception cannot be applied at

all to “high-quality waters which constitute

an outstanding national resource, such as
Ch. 6 Federal Land Planning and Environmental Laws ● 187

Alaska’s rivers and streams are subject to rapid changes in depth, rate of flow, and sediment load due to natural conditions
188. Analysis of Laws Governing Access Across Federal Lands

waters of National and State parks and wildlife refuges, and waters of exceptional recreational or ecological significance, ”30 and it

cannot be applied in any way that allows

water quality to fall below the levels needed

to protect fish, wildlife, and recreation in and

on the waters. These provisions of the antidegradation policy protect waters not only

from industrial expansions and sewage treatment plants, but also from commercial, agricultural, construction, and forestry sources.

The EPA regulations provided for implementation of the national nondegradation policy in three stages:

●

●

●

By April 26, 1976, each State was required to have developed and submitted

to EPA for approval a “State continuing

planning process” containing a schedule

for the development and adoption of a

statewide policy on antidegradation.

Between April and December 1976, each

State was required, after public hearings, to adopt the new statewide policy

on antidegradation. This policy had to be

submitted to EPA for approval and to be

at least as protective as the national

policy.

By July 1, 1977, the new statewide antidegradation policy had to go into effect.

After that date, all proposed activities,

which would increase water pollution,

have to be screened for consistency with

Federal-State antidegradation requirements.

State Permit Programs

A State may assume NPDES responsibilities—28 have already done so31—if, in addition to having developed a continuing planning process (pursuant to section 303 (e)), it

has the authority to do the following:32

1. Issue permits, for a period not exceeding

5 years, to ensure compliance with effluent limitations, water quality standards, standards of performance, toxic

and pretreatment standards, and ocean

discharge criteria;

2. Undertake inspections and monitoring;

3. Ensure that notice of permits is given to

the public, the Administrator, and other

affected States;

4. Reduce permit violations by enforcing

civil or criminal penalties; and

5. Ensure that adequate notice is given of

all materials introduced into publicly

owned treatment works.

Even when a State has assumed the administration of the NPDES, the EPA Administrator may object to the issuance of any particular permit and prevent it from going into

effect. 33 He also has the authority to withdraw approval of a State permit program if

the State’s administration of the program

fails to meet the requirements of section

402.34

Certification for Federal Licenses

Before the granting of a Federal license or

permit to conduct an activity that involves the

discharge of pollutants into navigable waters,

the applicant must present the certification

required by section 401.35 The certificate is to

be issued by the State in which the discharge

originates, if that State administers the

NPDES, if it does not, then the certification

must be given by EPA. A certificate must

show that the activity for which a Federal

license or permit is sought will comply with

all applicable effluent limitations, water

quality standards, pretreatment and toxic effluent restrictions, and standards of performance. 36

EFFLUENT LIMITATIONS

The Clean Water Act, unlike its predecessors, focuses on the operations of the polluter

and not just on the resultant water quality.

Specific limits on effluents are prescribed

and must be adhered to by individual polluters. These limitations are enforced by the

NPDES permit program administered by

either the EPA or a State. No discharge of any

pollutant from a point source is allowed unless a permit has been granted.37 Such per-
Ch. 6 Federal Land Planning and Environmental Laws ● 189

mits must contain schedules of compliance

which guarantee that the applicable effluent

limitations will be met.

The limitation of effluents is essential for

implementing the Act and attaining water

quality goals:38

The term, ‘effluent limitation, ’ means any

restriction established by a State or by the

Administrator on quantities, rates, and concentrations of chemical, physical, biological,

and other constituents which are discharged

from point sources into navigable waters, the

waters of the contiguous zone, or the ocean,

including schedules of compliance,

In practice, effluent limitations are developed by EPA on an industry-by-industry

basis. Prior to the 1977 amendments, they

defined the pollution loads allowable under

the 1977 standard of “best practicable technology” and the 1983 standard of “best

available technology economically achievable. ” These guidelines will be revised to

meet the 1984 standards discussed below,

and new tests added for the different classes

of regulated pollutants.

Point Sources

The Act establishes four major classes of

pollutant sources, each of which is subject to

different standards and deadlines, and is

regulated by different Federal and State

agencies. The four classes are: (1) industrial

point sources, (2) municipal point sources, (3)

nonpoint sources, and (4) dredge and fill

materials. A point source is defined in the Act

as follows:39 “The term point source means

any discernible, confined and discrete conveyance, including but not limited to any pipe,

ditch, channel, tunnel, conduit, well, discrete

fissure, container, rolling stock, concentrated

animal feeding operation, or vessel or other

floating craft, from which pollutants could be

discharged. ” Return flows from irrigated

agriculture are specifically excluded from

the definition of point source,

Point sources, which are usually associated with industry and sewage treatment

plants, tend to be responsible for local pollution, particularly from toxic effluents. The

major thrust of the Act is aimed at controlling

point sources that discharge from discernible, confined, and discrete conveyances.

Nonpoint sources, which account for the

bulk of conventional pollutants affecting

water quality, include surface runoff from urban and agricultural sources, the entry of air

pollutants into waterways through dry fallout, and precipitation and soil runoff-including runoff from mining and construction

activities.

Under the Act, point and nonpoint sources

are subject to different treatment. Point

sources are regulated by a permit program

based on uniform technology-based standards that is designed to reduce sharply previous pollution. Nonpoint sources, on the

other hand, are not regulated by such specific

Federal standards. This is primarily because

discharges from these sources are diffuse,

difficult to monitor, and dependent on uncontrollable climatic events (as well as

geographic and geologic conditions), and may

differ greatly from place to place.

Industrial point sources include all point

sources other than publicly owned treatment

works. Under FWPCA, the effluent limitations required that industrial point sources

apply the BPT as determined by EPA, before

July 1, 1977, and the BAT by July 1, 1983.

The 1977 amendments made several important changes in this procedure. The July

1977 BPT deadline has been extended until

April 1, 1979, for those operators of point

sources who demonstrated a good faith effort

to achieve compliance.40 The BAT standards

and deadline have both undergone a complete

revision. Pollution from industrial point

sources is now divided into three classes—

toxic, conventional, and nonconventional.

Each of these is treated differently.

The Act defines toxic pollutants as: 41

The term ‘toxic pollutant’ means those

pollutants, or combinations of pollutants, including disease-causing agents, which after

discharge and upon exposure, ingestion, in-
190 ● Analysis of Laws Governing Access Across Federal Lands

halation or assimilation into any organism,

either directly from the environment or indirectly by ingestion through food chains,

will, on the basis of information available to

the Administrator, cause death, disease, behavioral abnormalities,

mutations, physiological

eluding malfunctions in

physical deformations, in

their offspring.

Sixty-five named toxic poll

cancer, genetic

malfunctions (inreproduction), or

such organisms or

utants, which were

originally the subjects of an out-of-court settlement against EPA, must meet the BAT

standards by July 1, 1984.42 Additional toxic

pollutants, which are not on this list, must

meet BAT standards within 3 years after effluent limitations are established.43

The “conventional pollutants” include but

are not limited to “biological oxygen demanding, suspended solids, fecal coliform, and

pH.” 44 They are subject to effluent limitations

that require the application of the “best conventional control technology” by July 1, 1984.

This new standard takes into account a

number of factors that were not considered in

developing the BAT standards. These are:45

Factors relating to the assessment of best

conventional pollutant control technology (including measures and practices] shall include consideration of the reasonableness of

the relationship between the costs of attaining a reduction in effluents and the effluent

reduction benefits derived, and the comparison of the cost and level of reduction of such

pollutants from the discharge from publicly

owned treatment works to the cost and level

of reduction of such pollutants from a class

or category of industrial sources, and shall

take into account the age of equipment and

facilities involved, the process employed, the

engineering aspects of the application of

various types of control techniques, process

changes, nonwater quality environmental impact (including energy requirements), and

such other factors as the Administrator

deems appropriate.

The Conference Report on the Clean Water

Act of 1977 indicates that this standard is intended to be less stringent than the BAT

standard in some, if not most, cases:46

The cost test for conventional pollutants

is a new test. It is expected to result in a determination of reasonableness, which could

be somewhat more than best practicable

technology or could be somewhat less than

best available technology for other than conventional pollutants. The result of the cost

test could be a 1984 requirement which is no

more than that which would result from best

practicable technology but also could result

in effluent reductions equal to that required

in the application of the best available

technology.

Nonconventional pollutants—those classified as neither toxic nor conventional—will

be subject to the BAT standard requirements

no later than July 1, 1987. 47 However, the

1977 amendments provide for a waiver or

modification of such requirements for the

nonconventional pollutants where the following conditions are met:48

1.

2.

3.

4.

The State concurs in the waiver.

The requirements are, at a minimum, as

stringent as the BPT standard or any

special July 1977 limitations for meeting

water quality standards.

No other point or nonpoint source will

face additional cleanup requirements

due to the waiver.

The waiver will not interfere with meeting the 1983 goal of protected public

water supplies and fishable and swimmable waters.

The waiver provision appears to reflect the

judgment that the nonconventional pollutants

are less likely than other pollutants to pose a

serious threat to water quality. The toxic

pollutants present a more immediate danger

to any humans, fish, or wildlife that come in

contact with a body of water containing one

or more of these substances. The conventional pollutants, which produce their effects

over a longer time period, can cause eutrophication, odor, nonpotability, and a decreased

ability to support plant and animal life, A

third type of pollutant, heat or thermal pollution, which is regulated under the Water

Quality Act of 1965 and section 303 of
Ch. 6 Federal Land Planning and Environment/ Laws ● 191

FWPCA, can also have deleterious effects on

plant, fish, and wildlife.

New Source and Pretreatment Standards

The Act imposes additional requirements

on two important types of industrial point

sources: newly constructed sources and

sources that discharge into publicly owned

treatment works. Section 30649 of the Act requires the Administrator to establish standards of performance for newly constructed

sources of pollution and specifies 27 categories of sources for which standards will

be developed.50 These include steam electric

powerplants and factories for the manufacture of nonferrous metals, phosphate, and

ferroalloys. EPA may add other categories

where appropriate.

New source standards of performance apply the following requirements :51

Standard of performance means a standard for the control of the discharge of

pollutants which reflects the greatest degree

of effluent reduction which the Administrator determines to be achievable through

application of the best available demonstrated control technology, processes, operating methods, or other alternatives, including, where practicable, a standard permitting no discharge of pollutants.

In practice, standards of performance have

often been equivalent to the 1983 BAT limitations developed for existing industries.52 Any

newly constructed source which complies

with an applicable standard of performance

is not subjected to more stringent standards

during the first 10 years of its operation.53

Pretreatment standards are designed to

limit the introduction into publicly owned

treatment works of those pollutants that cannot be treated by them.54 Publicly owned

treatment works—which are also regulated

by the Act—must meet standards that require the removal of specified pollutants. The

pretreatment standards ensure that pollutants such as toxic effluents, which cannot

be processed, are not fed to them. The 1977

Act allows the pretreatment requirements to

be waived where the treatment works that

further processes the discharge from an industrial point source is able to remove

pollutants covered by the pretreatment

standards .55

MUNICIPAL POINT SOURCES

Municipal sewage systems and treatment

plants are both affected by regulatory and

construction grant programs established by

the Act. Municipal waste waters include

wastes from homes and commercial establishments tied into sewage systems, some industrial wastes that are also tied in, and the

ground water and runoff from precipitation

that enters combined sewage and drainage

systems. Municipal sewage treatment plants

are usually designed to remove suspended

solids and normal organic wastes, and to

reduce the basic oxygen demand (BOD).

There are two traditional types of municipal

sewage treatment—primary and secondary:56

In primary sewage treatment, suspended

solids are allowed to settle. About 60 percent

of the suspended solids is normally removed

in this process, which also removes about 30

percent of BOD. Secondary treatment is a microbiological digestion process. This process

enhances the BOD reduction to 85 percent or

more and the solids removal to 90 percent or

more. Both primary and secondary treatment

reduce the BOD in waste water before discharge by removing organic matter.

The 1972 Act required all municipal point

sources to utilize secondary treatment by July

1977, and to use the “best practicable waste

treatment technology over the life of the

works” no later than July 1, 1983. To facilitate the large construction and modifications

program required to meet these goals, Title II

of FWPCA established an $18 billion construction grant program for municipalities

seeking to upgrade the quality of publicly

owned treatment facilities.

Mining operations are not directly affected

by sewage treatment regulations. But requirements for municipal waste treatment
192 ● Analysis of Laws Governing Access Across Federal Lands

could have an impact on the potential for mineral development. Mine development may

often lead to the creation of new communities

or the expansion of existing ones beyond the

capacity of their sewage facilities. Taxes,

zoning, and land use plans will reflect this.

To qualify for receipt of construction

grants, every State or local governmental unit

or authority that is responsible for waste disposal is required to develop areawide waste

treatment plans and practices. Section 20857

provides for the identification of areas with

substantial water-quality control problems

and for the creation of management and planning agencies in each of these identified

areas. In other areas (generally rural areas),

the State must act as a planning and management agent. The planning agencies, which are

funded by Federal grants, are required to put

into operation a “continuing areawide waste

treatment management planning process. ”

This process must include:58

1. Management programs that are capable

of meeting the sewage treatment needs

of the area over a 20-year period;

2. A regulatory program to control the location, modification, and construction of

facilities that discharge water pollutants; and

3. Programs—including land use requirements—to control such nonpoint sources

of pollution as agriculture, mining, and

construction.

Plans under section 208 must have been submitted to EPA by November 1, 1978. State

agencies that undertake planning and any

local agency designated after 1975 must submit section 208 plans within 3 years of first

receiving a planning grant.

Section 208 planning has taken longer to

implement than was originally foreseen in

1972 because of delays in the entire municipal waste control program. The delays were

caused, in part, by the Presidential impoundment of construction grant funds, and in part

by EPA’s failure to obligate the funds when

they were made available. In response to the

delays, the Clean Water Act provided extensions of the 1977 secondary treatment requirements for any municipal treatment plant

where construction has not been completed

or where Federal funds have been held up.59

The extension may last until July 1, 1983, provided that the treatment works will comply

with the 1983 best practicable waste treatment standard. In addition, industrial point

sources, that had planned to meet 1977

standards by discharging into municipal

treatment works are granted an extension for

the same time period for which the treatment

works receives its extension.

Nonpoint Sources

Quantities of pollutants reach rivers and

streams without ever flowing through pipes,

sewage plants, or outfall structures. Nonpoint sources of water pollution—including

runoff from such diffuse sources as urban,

agricultural, silvicultural, mining, and construction activities-have increased significantly over the past several years. As an indication of the extent of this problem, it has

been estimated that:60

1.

2.

3<

4.

Storm-generated discharges account for

between 40 and 80 percent of the annual

total of oxygen-demanding materials;

Practically the entire 97 percent of the

Nation’s areas in rural land is a potential nonpoint source of pollution; over

400 million acres are in cropland, which

delivers 2 billion tons of sediment annually to streams and lakes;

Animal wastes of livestock alone are

estimated at 2 billion tons, equivalent to

10 times that produced by humans; and

Total phosphorus emissions from nonpoint sources have been estimated at

800,000 tons per year.

Nonpoint sources are regulated at the

State and local levels by means of section 208

waste treatment management plans. The Act

states that a 208 plan must include:61
Ch. 6 Federal Land Planning and Environmental Laws .193

A process to (i) identify, if appropriate,

mine-related sources of pollution including

new, current, and abandoned surface and

underground mine runoff, and (ii) set forth

procedures and methods (including land use

requirements) to control, to the extent feasible, such sources.

Another relevant provision of section 208 requires similar treatment of construction activity related sources of pollution.62

It is uncertain, at present, what effect nonpoint source controls will have on mineral access. Many areas have not as yet submitted

section 208 plans. The guidelines prepared by

the EPA have focused mainly on urban problems.

The 1977 amendments include a provision63

that allows EPA to develop regulations prescribing “best management practice” to control the nonpoint discharge of toxic and hazardous materials associated with industrial

manufacturing or treatment processes. No

regulations have yet been issued under this

section. The Conference Report indicates that

the intent of the provision “is to control runoff of toxic and hazardous materials from industrial sites resulting from poor housekeeping procedures. "

64 Mining operations could be

subject to regulations under this provision.

Dredge and Fill Operations

The Army Corps of Engineers was first

given regulatory authority over the disposal

of dredge and fill material into navigable

waters by the Rivers and Harbors Act of

1899. 65 Section 404 of FWPCA continued that

authority and provides that the Secretary of

the Army, acting through the Chief of Engineers, may issue permits, after notice and opportunity for public hearings for the discharge of dredged and filled materials into

the navigable waters at specified disposal

sites. 66

Permits issued by the Corps of Engineers

for dredge and fill materials require that

operations under the permit comply both with

any effluent limitations and with water quality standards.67 Permits for actions that significantly affect the environment are subject

to NEPA; therefore, the Corps must prepare

an environmental impact statement before issuing a permit.

When the Act was passed, the Corps interpreted its jurisdiction to mean those waters

that had traditionally (since 1899) been classified as “navigable.” For this reason, the

Corps did not assume Federal regulatory jurisdiction over extensive amounts of wetlands

throughout the country.

On March 27, 1975, as a result of a suit

(Natural Resources Defense Council v. Callaway), 68 the Corps was ordered to expand its

regulations beyond its traditional definition

of navigability. Regulations published on July

25, 1975, established a three-phase implementation schedule for the Corps’ expanded

jurisdiction over the dredge and fill permit

program.

69 Phase I, which went into effect in

July 1975, required permits for discharges of

dredge and fill into traditional navigable

waters and their adjacent wetlands. Phase II,

which took effect in September 1976, expanded the Corps’ jurisdiction to include primary tributaries of traditionally navigable

waterways, natural lakes greater than 5

acres in surface area and their adjacent wetlands. Finally, Phase III, which took effect in

July 1977, included all waters up to the headwaiters where the stream flow is less than 5

cubic feet per second.

The expansion of the definition of navigable waters raised the possibility that many

hitherto unregulated activities, as well as activities with little potential effect on water

quality, would require +104 permits. Particular concern was expressed for conventional farming, ranching, maintenance, and

construction activities. The 1977 amendments significantly altered the scope of activities subject to permit requirement. The

following activities were exempted:70

1. Normal farming, silviculture, and ranching;

2. Maintenance of dikes, dams, levees, and

transportation structures;
194 ● Analysis of Laws Governing Access Across Federal Lands

3.

4.

5.

Construction of farm or stock ponds and

maintenance of drainage ditches;

Temporary sedimentation basins on a

construction site; and

Farm roads, forest roads, and temporary roads for moving mining equipment

constructed in accordance with best

management practices.

These exemptions apply only if the activity

does not bring an area of navigable waters

into a use to which it was not previously subject, or does not impair the flow or circulation

of navigable waters, or does not reduce the

reach of such waters .71

The 1977 amendments also allow the issuance of general permits for any category of

activities that involve the discharge of dredge

and fill materials.72 General permits can be

granted for a category of activities which the

Secretary of the Army determines are similar

in nature, cause only minimal adverse environmental effects when carried out separately, and will have only minimal cumulative adverse effects on the environment. No

general permit may last longer than 5 years.

The 1977 amendments also provide for the

State to administer both individual and general dredge and fill permit programs in

phases II and 111 waters after approval of the

program by the Administrator.73 The State’s

authority for the program’s approval is essentially the same one it must have to administer

a 402 permit program.

Dredge and fill operations often accompany roadbuilding or construction, particularly near the coast, in wetlands, and in

areas with many streams and lakes. Although

temporary roads for moving mining equipment do not require permits, other access

routes do. Where such operations are part of

a project that would have a significant impact

on the environment, the Corps must prepare

an impact statement before issuing a permit.

Effluent Limits on Mining Activities

By regulation, EPA has established effluent

limitations for some mining activities. The

regulations are found in 40 CFR Part 436,

“Mineral mining and processing point source

category, ” and 40 CFR Part 440, “Ore mining

and dressing point source category. ” These

existing regulations are narrow in scope. As

of June 1978, no standards of performance,

pretreatment standards or effluent limitations reflecting the best available technology

had been established for any mining activity.

Those BPT standards that have been established cover only a small number of discharged pollutants. However, for a number of

mining activities, EPA has established a no

discharge limit.

The regulation with the broadest effect is

undoubtedly 40 CFR Part 440, Subpart B,

“Base and precious metals subcategory, ”

which applies to:74

a.

b.

c.

d.

e.

f.

Nonplacer mines operated to obtain

copper-bearing ores, lead-bearing ores,

zinc-bearing ores, gold-bearing ores, or

silver-bearing ores;

Mills that employ the froth-flotation

process for beneficiation of copper

ores, lead ores, zinc ores, gold ores, or

silver ores;

Mines and mills that use dump, heap, in

situ leach, or vat-leach processes for

the extraction of copper;

Mills that extract gold or silver by the

cyanidation process;

Mills that extract gold or silver by the

amalgamation process; and

Mines or mine and mill complexes

beneficiating gold ores, silver ores, tin

ores, or platinum ores by gravity separation, including placer or dredge

mining.

BPT standards are established for total

suspended solids and pH for all categories

(except for cyanidation process mills and

dump, heap, in situ leach, or vat-leach processes for which no discharge is allowed) .75

BPT limits are also placed on discharges of

copper, zinc, lead, cadmium, and cyanide

from regulated mines and mills.76
Ch. 6 Federal Land Planning and Environmental Laws ● 195

Other subparts of 40 CFR Part 440 establish BPT effluent limitations for iron ore,77

bauxite,

78 ferroalloys, 79 uranium, radium,

vanadium, 80 mercury

81 and titanium.82 Each

establishes limits on the discharge of suspended solids (in almost every case no more

than 30 milligrams per liter) and pH (an allowable range between 6.0 and 9.0), as well

as limits on concentrations of various metals

in water discharges. For iron ore, limits are

set on iron.83 For the bauxite subcategory, limits are set on discharges of iron, lead, and

zinc.84 For the ferroalloy subcategory, limits

are set for cadmium, copper, zinc, lead, arsenic, and ammonia discharges.85 In the uranium, radium, and vanadium subcategory,

guidelines are established for cadmium, zinc,

arsenic, radium-226, and uranium.86 The mercury ore subcategory establishes limits for

discharge of mercury and nickel.87 While the

titanium subcategory contains limits on discharges of iron, zinc, and nickel.88 In five instances, the regulations permit no discharge

from certain types of facilities: iron ore mills

employing magnetic or physical methods to

beneficiate ore;89 mines and mills that use

dump, heap, in situ leach, or vat-leach methods to extract copper;90 mills that extract gold

or silver by cyanidation;91 mills using acid or

alkaline leach for extraction of uranium,

radium, or vanadium;92 and mills beneficiating mercury by gravity separation or

froth-flotation. 93

FOOTNOTE REFERENCES

‘Act of March 3, 1899, section. 13, 30 Stat. 1152, 33

U.s.c. 407.

‘Water Quality Act of 1965, Public Law 89-234, 79

Stat. 903.

3Public Law 92-500, 86 Stat. 816.

4EPA effluent limitations that affect mining point

sources are found at 40 CFR 436, “Mineral mining and

processing point source category,” and 40 CFR Part

44o. “Ore mining and dressing point source category. ”

The latter chapter covers copper, lead, zinc, gold,

silver, bauxite, uranium, radium, vanadium, mercury,

and titanium. The former chapter presently covers

barite, fluorspar, borax, potash, phosphate, sulfur,

40 CFR Part 436, “Mineral mining and

processing point source category” establishes effluent limitations for the class of

materials generally known, as industrial minerals. 94 Most industrial minerals are processed at or near the mine site. Processing can

include slurry transport of ores or intermediate product. Mine dewatering is often associated with mining and processing of building

materials.

Effluent limitations in Part 436 focus on

process-generated waste water, rather than

on discharges from mining operations per se.

The term process-generated waste water is

defined as “any waste water resulting from

the transport of ore or intermediate product,

air emissions control, or processing exclusive

of mining.”95 A zero discharge level for process-generated waste water pollutants is established for the following mineral categories: crushed stone, construction sand and

gravel, gypsum, asphaltic minerals, asbestos

and wollastonite, barite, fluorspar, borax,

potash, sodium sulfate, frasch sulfur, bentonite, magnesite, diatomite, jade, and novaculite. 96 Allowable pollutant discharge levels

have been established for process waste

water and mine dewatering operations for:

crushed stone (dewatering only), construction

sand and gravel (dewatering only), industrial

sand, phosphate rock, and graphite.97

FOR CLEAN WATER ACT

bentonite, magnesite, diatomite, novaculite, tripoli, and

graphite; guidelines are planned for trona, lithium,

kyanite, aplite, kaolin, feldspar, talc, and garnet. For

the most part, these chapters now contain only 1977

BPT standards for the regulated sources.

5NaturaI Resource Defense Council v. Train, 396 F.

!hpp. 1386 (D.D.C, 1975).

‘Public Law 95-217, 91 Stat, 1566, 33 U.S.C. 1251 et

seq.

7See 33 U.S.C. 1160(c), these standards are continued

by section 303 of FWPCA, 33 U.S.C. 1313.

Osection lol[a), 33 U.S.C. 1251(a).

‘Section IOl(a~l)-(6), 33 U.S.C. 1251( a)(l)<6).
196. Analysis of Laws Governing Access Across Federal Lands

‘OEnvironmenta~ Quality—1976, the Seventh Annual

Report of the Council on Environmental Quality, 4 (1976)

hereafter Environment—1976.

‘lSection 502{14), 33 U.S,C. 1362(14).

‘

z

Section 301(b)(l), 33 U.S,C. 1o11.

‘3Section 301(b)(2), 33 U.S.C, 131 l(b)(2).

“Section 307(a), 33 U.S.C. 1317(a).

‘

sSection 306,33 U.S.C. 1316.

‘eSections 301(b)(l) and 303(d), 33 U.S.C. 1311(b)(l)

and 33 U.S.C. 1313(d).

‘environmental Protection Affairs of the 94th Congress, p. 97$

1eEnvironment—1976, pp. 16-17, 256-261.

19Report to the Congress by the National Commission

on Water Quality, Mar. 18, 1976, pp. 7-10,

z“~blic Law gwlp, 91 Stat. 1566, Dec. 27, 1977.

Amends section 518 of FWPCA to provide that the Act

may be cited as “The Federal Water Pollution Control

Act” (commonly referred to as the Clean Water Act).

Section 2,91 Stat 1566.

Z~EnvironmentaJ Quality—1977, Eighth Annua~ Report

oj the Council on Environmental Quality (1977) (hereafter Environment— 1977).

zzIdo

23Public Law 89-234, 79 Stat. 903.

Z’Section 303(a~2), 33 U.S.C. 1313(a)(2).

2

’40 CFR 130.17,

Zasection 303(e)(2), 33 U.S.C. 1313(e)(2).

Z’section 303(d)(l)(A), 33 U.S.C. 1313(d)(l)(A).

2840 CFR 130.17(e)(l).

N40 CFR 130. 17(e)(2).

‘oId.

3’Environment—2 977, at 35. These include California,

Oregon, Washington, Montana, Colorado, Wyoming,

North Dakota, Nevada, and North Carolina.

3zSection 402(b), 33 U.S.C. 1342(b).

“section 402(d)(2), 33 U.S. C. 1342(d)(2).

34Section 402(e)(3), 33 U.S,C. 1342(e)(3).

‘sSection 401(a), 33 U.S. C. 1341(a).

‘61d.

37Section 301(a), 33 U.S.C. 131 l(a).

Sasection 502(1 1), 33 U.S.C. 1362(1 1).

39Section 502(14),33 U,S,C, 1362(14).

‘Section 309(a)(5), 33 U.S. C. 1319 (a)(5), as amended

by Public Law 95-217, section 56(C), 91 Stat. 1592.

4

1 Section 502(13),33 U.S.C. 1362(13).

42Section 301(b)(2)(C), 33 U.S,C, loll; added

by Public Law 95-217, section 42(a), 91 Stat.1582.

43Section 301(b)(2)(D), 33 U,S.C. loll; added

by Public Law 95-217, section 42(a), 91 stat.1583.

44 Section 304(a)(4), 33 U.S.C. 1314(a)(4), as amended

by Public Law 95-217, section 48(a), 91 Stat.1587.

45 Section 304(b)(4), 33 U.S.C. 1314(b)(4), as amended

by Public Law 95-217, section 48(b), 91 Stat. 1587. 46 House Report 95-830, P“ 85”

47 Section 301(b)(2)(F), 33 U,S,C. 131 l(b)(2)(F).

4aSection 301(g), 33 U.S.C, 1311(g), added by Public

Law 95-217, section 43,91 Stat. 1583.

4eSection 306,33 U.S.C. 1316.

‘Section 306(b), 33 U.S.C. 1316(b).

Slsection 306(all), 33 U.S.C. 1316(a)(l).

52Environment—1976, at 14.

‘Jsection 306(d), 33 U.S.C. 1316(d).

~’section 307(b), 33 U.S.C. 1307(b).

ss~blic Law 95-217, section 54(a), 91 Stat. 1591,

amending section 307(b)(l); 33 U.S.C. 1307(b)(l).

s6Environment—~ 976, at 257.

‘Tsection 208, 33 U.S. C. 1288.

Sgsection 208(b)(2), 33 U.S.C. 1288(b)(2).

‘gSection 301(i)(l), 33 U.S.C. 131 l(i)(l), as amended by

Public Law 95-217, section 45,91 Stat. 1584,

‘Environmental Protection Afjairs of the 94th Congress, p. 91. elsection 208(b)(2)(G), 33 U.S.C. lzee[b)(z)(c),

ezsectiorl 208(b)(2)(H), 33 U.S.C. lz8@)(z)(W.

‘

3 Section 304(d) 33 U,S.C, 1314(d), as added by Public

Law 95-217, section 50,91 Stat. 1588.

‘House Report 95-830, p. 80. ‘

‘3533 U.s.c. 407.

eosection 404(a), 33 U.S. C. 1344(a).

eTPerrnitS issued under section 404 contain the fOllOwing general conditions (ENG Form 1721):

b. That all activities authorized herein shall, if they

involve a discharge or deposit into navigable waters or ocean waters, be at all times consistent

with applicable water quality standards, effluent

limitations, and standards of performance, prohibitions, and pretreatment standards established

pursuant to section 301, 302, 306 and 307 of the

Federal Water Pollution Control Act of 1972

(Public Law 92-500; 86 Stat. 816), or pursuant to

applicable State and local law,

c. That when the activity authorized herein involves

a discharge or deposit of dredged or fill material

into navigable waters, the authorized activity

shall, if applicable water quality standards are

revised or modified during the term of this permit, be modified, if necessary, to conform with

such revised or modified water quality standards

within 6 months of the effective date of any revision or modification of water quality standards,

or as directed by an implementation plan contained in such revised or modified standards, or

within such longer period of time as the District

Engineer, in consultation with the Regional Administrator of the Environmental Protection

Agency, may determine to be reasonable under

the circumstances,

d. That the permittee agrees to make every reasonable effort to prosecute the work authorized

herein in a manner so as to minimize any adverse

impact of the work on fish, wildlife, and natural

environmental values.

’392 F,hpp, 685 (D.D.C, 1975),

6940 F.R. 31320, July 25,1975; 33 CFR 209.120.

70Section 404(f)(l), 33 U.S.C. 1344(f)(l), as amended

by Public Law 95-217, section 67(b), 91 Stat. 1600.

7’Section 404(f)(2), 33 U.S.C, 1344(f)(2), as amended

by Public Law 95-217, section 67(b), 91 Stat. 1601.

72 Section 404(e), 33 U.S.C. 1344(e),
Ch. 6 Federal Land Planning and Environmental Laws .197

73Section 404(g), 33 U.S.C. 1344(g).

7’40 CFR 440.20.

7540 CFR 440.22(a).

7’40 CFR 440.22(a).

7740 CFR 440, subpart A.

7840 CFR 44o, subpart C.

7940 CFR 440, subpart D.

’40 CFR 44o, subpart E.

’140 CFR 440, subpart F.

13240 CFR 440, subpart G.

’340 CFR 440.12(a).

“40 CFR 440.32 (a~l).

’

5

40 CFR 440,42(a),

8840 CFR 440.52(a).

’740 CFR 440,62(a),

8840 CFR 440. 72(a).

6e40 CFR 440.12(a)(3).

’40 CFR 440.22 (a13).

g140 CFR 440.22(a)(4).

’

2

40 CFR 440.52 (a12).

gs40 CFR 440.62 (a~2).

Q’Industrial minerals include sulfur, asbestos, fluorspar, gemstones, graphite, building materials, abrasives, and absorbents. For a description of industrial

minerals and their role, see Charles F. Park. Earthbound, pp. 117-130 (1975).

’

5

40 CFR 436.21(e).

9640 CFR 43tj.22(a), crushed stone; 40 CFR 436.32(a)

construction sand and gravel; 40 CFR 436.52(a), gypsum; 40 CFR 436.62(a), asphaltic mineral; 40 CFR

436.72(a), asbestos and wollastonite; 40 CFR

436.102(b), barite (except wet process or flotation); 40

CFR 436.1 12(b), fluorspar (except heavy media separation or flotation); 40 CFR 436.132(a), borax; 40 CFR

436. 142(a), potash; 40 CFR 436.152(a), sodium sulfate;

40 CFR 436.192(a), frasch sulfur; 40 CFR 436.222(b),

bentonite; 40 CFR 436.232(a), magnesite; 40 CFR

436.242(a), diatomite; 40 CFR 436.252(a), jade; and 40

CFR 436.242(a) novaculite.

974o CFR 436.22(a)(2), crushed stone (dewatering); 40

CFR 436.32 (a~2) construction sand and gravel (dewatering); 40 CFR 436.42(a)(2), industrial sand (HF flotation only); 40 CFR 436.42(a)(3), industrial sand (dewatering); 40 CFR 436.182(a)(l), phosphate rock; and 40

CFR 436.382(a), graphite.

40- f3f14 () - -ir~ - 14
198 b Analysis of Laws Governing Access Across Federal Lands

COASTAL ZONE MANAGEMENT ACT

The Coastal Zone Management Act

(CZMA)l provides a series of incentives for

States to develop comprehensive land use

planning and zoning programs to preserve

and protect the resources of the coastal zone.

The Act was passed in recognition of severe

problems existing in the coastal areas and

the absence of effective State and local initiatives to combat these problems.

State action under the coastal zone program has two phases: First, the development

of a State management plan that meets criteria set forth in the Act and is approved by the

Secretary of Commerce; second, the implementation of that plan. The aim of the law, in

simplified terms, is to create State authorities

with the power to manage and control all future development in the coastal region following a comprehensive management plan. The

Secretary of Commerce, through the National

Oceanic and Atmospheric Administration

(NOAA), acts as the Federal administrator

for the CZMA program and is charged with

assuring that State plans and implementation

programs meet the objectives of the Act.

State participation in the CZMA program

is optional, but all 30 States eligible under the

Act have thus far chosen to participate.2

There are three strong incentives to do so:

States receive Federal financial assistance to

develop coastal zone management plans satisfying the statutory criteria; the cost of administering approved plans will also be substantially covered by Federal grants; and a

State is assured that most Federal actions

directly affecting coastal areas must be ‘consistent’ with the approved coastal zone management plan.

The potential impact of State coastal zone

management plans on mineral access is

clear. A State management plan (discussed in

greater detail below) must include the following: a definition of permissible land and water uses within the coastal zone; guidelines on

the priority of uses in specific areas (includNote: Footnotes for this section appear on pp. 206-209.

ing specific listing of low-priority uses); and

an inventory and designation of areas to receive specially stringent environmental protection. Decisions in any of these areas could

have a controlling impact on the feasibility of

mineral extraction or access within the coastal zone.

Questions of mineral access are also affected by a section of the Act requiring State

plans to provide for “adequate consideration

of the national interest involved in planning

for, or in the siting of facilities . . . which are

necessary to meet requirements other than

local in nature.”3 NOAA lists minerals as one

of the resources in which there may be a national interest.4 Transportation networks are

listed among facilities in which there may be

a national interest. The requirement of “adequate consideration” has been interpreted by

NOAA to mean that there be a balancing of

national interests in coastal resources and

facilities with Federal, State, and local concerns involving adverse economic, social, or

environmental impacts.5 In any event, the

State plan will have to address the question

of restrictions on mineral extraction and access within the coastal zone.

THE COASTAL ZONE

The Act provides an inexact definition of

the crucial term “coastal zone, ” the locus for

management activity. Section 304(1) states:

The term ‘coastal zone’ means the coastal

waters (including the lands therein and

thereunder) and the adjacent shorelands (including the waters therein and thereunder),

strongly influenced by each other and in

proximity to the shorelines of the several

coastal States, and includes islands, transitional and intertidal areas, salt marshes, wet

lands, and beaches. . . . The zone extends inland from the shorelines only to the extent

necessary to control shorelands, the uses of

which have a direct and significant impact

on the coastal waters. Excluded from the
Ch. 6 Federal Land Planning and Environmental Laws .199

coastal zone are lands the use of which is by

law solely subject to the direction of or which

is held in trust by the Federal Government,

its officers, and agents.

Section 304(2) indicates that the term

‘coastal waters’ includes ‘those waters, adjacent to shorelines, which contain a measurable quantity and percentage of seawater, including but not limited to sounds, bays,

lagoons, bayous, ponds, and estuaries. ’

The inland extent of the coastal zone is

decided on a case by case basis.’ It must include areas whose uses will have “direct and

significant impact on coastal waters. ” NOAA

regulations list a number of significant factors such as the demographic, economic, political development, and geophysical characteristics of an area that should be considered

in making decisions on the extent of coastal

zone boundaries.7

Alaska has the longest coastline of any

State, an estimated 47,300 miles of tidal

ocean shoreline.8 Much of the coastline is in,

and will continue in, Federal ownership and

is therefore excluded from inclusion in the

coastal zone.9 In its coastal zone plan submission of 1978, the State will initially define the

Alaskan coastal zone as being seaward to the

extent of State jurisdiction and landward in

terms of biophysical criteria developed by the

Alaska Department of Fish and Game. 10 T h e

initial landward boundaries will be subject to

modification as the plan is developed in

detail. 11

STATUTORY REQUIREMENTS

FOR THE PLAN

The first phase of the CZMA process requires that the State develop a plan for

managing activities in the coastal zone. At a

minimum, the plan must contain the following

nine elements specified in section 305(b):12

1. An identification of the boundaries of

the coastal zone subject to the management program;

2. A definition of what shall constitute per3.

4.

5.

6.

7.

8.

9.

missible land uses and water uses within

the coastal zone that have a direct and

significant impact on the coastal waters;

An inventory and designation of areas of

particular concern within the coastal

zone;

An identification of the means by which

the State proposes to exert control over

the land and water uses that have a

direct and significant impact on the

coastal waters, including a listing of

relevant constitutional provisions, laws,

regulations, and judicial decisions;

Broad guidelines on the priority of uses

in particular areas, including specifically those uses of lowest priority;

A description of the organizational

structure proposed to implement the

management program, including the responsibilities and interrelationships of

local, areawide, State, regional, and interstate agencies in the management

process;

A definition of the term “beach” and a

planning process for the protection of

and access to public beaches and other

public coastal areas of environmental,

recreational, historic, esthetic, ecological, or cultural value;

A planning process for energy facilities

that are likely to be located in or that

may significantly affect the coastal zone,

including, but not limited to, a process

for anticipating and managing the impacts from such facilities; and

A planning process for (a) assessing the

effects of shoreline erosion (however

caused), and (b) studying and evaluating

ways to control or lessen the impact of

such erosion, and to restore areas

adversely affected by such erosion.

These requirements are designed to ensure

that qualifying plans achieve wise use of the

land and water resources of the coastal zone

by giving full consideration to ecological,
200 ● Analysis of Laws Governing Access Across Federal Lands

cultural, historic, and esthetic values as well

as to the needs for economic development including the extraction of needed mineral resources. These requirements differ markedly

from State plans under the clean air or water

programs, 

13 in which the State plans must

meet specific Federal requirements for the

elimination of named pollutants in a specified

time frame.

DEVELOPING THE PLAN

The first Federal incentive for State participation in the CZMA program is the provision of matching grants to meet State costs in

developing an acceptable plan. Grants of up

to 80 percent of the State costs maybe made

in each of 4 years. 14

The CZMA offers considerable latitude to

States in developing an approvable plan, but

the program planning process requires that

the States address the designated statutory

criteria while doing so. As a result, State

choices in the development of a proposed plan

could affect the availability of or access to

minerals on non-Federal land in coastal

zones.

Key decisions in the development and implementation of a coastal zone management

program include the designation of the coastal boundaries, the determination of permitted

uses and their priority, the inventory and designation of areas of particular concern, and

the establishment of land and water use controls. Designation of the coastal zone boundaries is the first step in the development of a

management program. It determines the location and extent of territory subject to planning and controls and, equally important,

those areas that are excluded from controls.

The Act recognizes that land and water

uses in areas a considerable distance inland

from the land-sea interface may have significant effects on the coastal environment.

Therefore, the protection of this environment

requires control of all areas whose uses will

have “direct and significant impact on the

coastal waters. ” The regulation interpreting

this requirement recognizes “that no simple

geographic definition will satisfy the management needs of all coastal States” because of

the peculiarities and variations that exist. Instead, it enumerates a number of factors,

such as an area’s demographic, economic, political, developmental, and geophysical, characteristics, that should be considered in

determining the coastal zone boundary for a

State. 15

After designation of coastal zone limits, the

State must determine what are permissible

land and water uses within the coastal zone

that have a direct and significant impact on

the coastal waters.16 In making these determinations, the regulations require States to

consider, among other things, the “requirements for . . . extraction of mineral resources

and fossil fuels . . . “ and the development of

indices measuring the environmental and economic impact of such activities,17 i.e., whether

they are beneficial, benign, tolerable, or

adverse. A State must provide for some evaluative mechanism in its plan in order to assess

environmental and economic impacts resulting from the extraction of minerals and fossil

fuels.

Section 305(b) specifically requires States

to identify the means by which control over

permissible land and water uses will be exerted; and the regulations delineate a variety

of options in terms of laws, regulatory processes, and the like, that are available to

demonstrate this capacity. This requirement

is reinforced by the provisions of section

306(e) that require adoption of some regulatory process to approve or disapprove of

various land and water uses. State coastal

zone management plans must also include

“an inventory and designation of areas of

particular concern within the coastal zone. ”

These are areas of special statewide concern, which, it is expected, will be emphasized in their development of coastal zone

policies and controls.

According to regulations issued by NOAA

to supply guidance to States in the development of their plans :18
Ch. 6 Federal Land Planning and Environmental Laws ● 201

Geographic areas of particular concern

are likely to encompass not only the moreoften cited areas of significant natural value

or importance, but also: (a) transitional or intensely developed areas where reclamation,

restoration, public access, and other actions

are especially needed; and (b) those areas especially suited for intensive use or development.

The regulations recognize that States “will

vary in their perception of what areas are of

particular concern” and provide detailed criteria for guidance during the designation

process, which could affect mineral activities

in coastal areas.

In designating areas of particular concern,

the States are directed to make immediacy of

need a major consideration in their determinations and to base designations on a review

of natural and manmade resources and the

uses of the coastal areas. These include the

following:19

1.

2.

3.

Areas of unique, scarce, fragile, or vulnerable natural habitat, physical feature, historical significance, cultural value, and

scenic importance;

Areas of high natural productivity or

essential habitat for living resources, including fish, wildlife, and the various

trophic levels in the food web critical to

their well-being;

Areas of substantial recreational value

and/or opportunity;

Photo Cred/t ” U.S. Dept. of the /rfteflor, National Park Serwce

Stellar Sea Lions, Kenai fjord, Alaska
202. Analysis of Laws Governing Access Across Federal Lands

4. Area where developments and facilities

are dependent on the utilization of, or access to, coastal waters;

5. Areas of unique geologic or topographic

significance to industrial or commercial

development;

6. Areas of urban concentration where

shoreline utilization and other water uses

are highly competitive;

7. Areas of significant hazard if developed,

owing to storms, slides, floods, erosion,

settlement, etc.; and

8. Areas needed to protect, maintain, or replenish coastal lands or resources, including coastal flood plains, aquifer recharge

areas, and dunes, coral and other reefs,

beaches, offshore sand deposits, and mangrove stands.

The inventory and designation of areas of

particular concern should assist the States in

meeting the statutory requirement that management plans provide procedures for the

designation of specific areas for preservation

or restoration for their conservation, recreational, ecological, or aesthetic values. It

should be noted that the list includes consideration of the mineral value of coastal

“areas of unique geologic or topographic significance to industrial or commercial development.” 20

APPROVING THE PLAN

Once a State plan is approved by the Secretary, the State is eligible for a program administration grant under section 305 of the

Act. These grants provide up to 80 percent of

the cost of actually administering the programs described in the plan.21 The Secretary

is also authorized to make grants to States for

program costs during the period between submission of the plan and its approval.22

Review and approval of plans is handled by

the Office of Coastal Zone Management of

NOAA.23 Approval requires more than showing that a State plan contains the nine elements set forth in section 305(b). The Secretary must also find that the following nine

requirements have been met in the plan’s

development.

1. The plan was developed in compliance

with relevant Federal rules and regulations, and allowed opportunity for full

participation by “relevant Federal and

State agencies, local governments, regional organizations, port authorities,

and other interested parties, public and

private.” 24

2. The State has coordinated its program

3.

4.

5.

6.

with local, areawide, and interstate

plans applicable to areas within the

coastal zone developed under section

204 of the Demonstration Cities and Metropolitan Development Act of 196625 and

established an effective mechanism for

the State coastal zone management program to maintain coordination with local

governments and regional and interstate

agencies. The coordination mechanism

must require that the coastal zone management agency notify and receive comments from local governments on any

program action that would conflict with

local zoning rules. The State agency

must allow 30 days for comment by the

local officials; the management agency

must review any such comments, prior to

implementing the proposed action.26

The State has held public hearings in

developing the program.27

The Governor has approved the plan.28

The Governor has designated a single

agency to receive and administer section

305 grants.29

The State is organized to administer the

plan. 30

7. The State has the authority to implement

the program, including authority to control land and water uses in the zone and

the ability to acquire interests in property.31 Controls over land and water may

be accomplished through any one or a

combination of these techniques :32
Ch. 6 Federal Land Planning and Environmental Laws ● 203

(a)

(b)

(c)

Local implementation of State established standards and criteria subject

to State administrative review;

Direct State land and water use

planning and regulation;

Local planning and regulation of

land and water uses subject to State

administrative review for consistency, with State power to approve or

disapprove after public notice and

an opportunist y for hearings.

The plan must also include a method for

assuring that local land and water use

regulations “do not unreasonably restrict land or water uses of regional

benefit.” 33

8. The management program must provide

for planning and siting of facilities

(including energy-related facilities) necessary to meet requirements that are

“other than local in nature.”34

9. The program must include a procedure

to designate areas for preservation or

restoration for conservation, recreational, ecological, and other values .35

However, compliance with the statutory requirements is not sufficient to guarantee plan

approval. Regulations setting out general requirements supplementary to the statute

state: “At the minimum, States shall include

three broad classes of policies in their

management program in order to provide a

framework for the exercise of various management techniques governing coastal resources, uses, and areas.”36 These policies

are: (1) resource policies directed towards

the management and conservation of valuable or vulnerable coastal resources; (2)

coastal development policies that address

such matters as shorefront access, ports and

harbors, energy development, and mineral

access; and (3) governmental process policies

including clarification and simplification of

regulatory and permitting procedures.

The State management plan may be

amended with approval of the Secretary of

Commerce after public notice, consultation

with affected Federal, State, and local government agencies, and an opportunity for

participation by interested parties. A State

may, with approval of the Secretary, implement its programs in segments in order to

focus immediate attention on those coastal

areas with the most serious problems, as long

as the segmented management program can

ultimately be consolidated into a single State

program.

During the review of each State management program submitted for Federal approval, NOAA will prepare an EIS pursuant

to NEPA.37

FEDERAL-STATE RELATIONSHIPS

UNDER CZMA

The Act establishes a close relationship between the State and Federal coastal agencies

conducting or licensing activities within or

near the coastal zone. The coastal zone itself

cannot contain “lands the use of which is by

law subject solely to the discretion of, or

which is held in trust by, the Federal Government’’ 38—e.g., national parks, forests, wildlife refuges, petroleum reserves, and land administered by BLM. The management plan,

however, can have a major effect on Federal

activities that might affect the coastal zone.

In addition, Federal agencies acting in and

around the zone have a role in the approval of

a State management plan.

Section 306(b) requires the Secretary of

Commerce to consider the views of Federal

agencies that might be affected by a management plan before approving that plan. Thus,

Federal agencies operating in or near the

zone have the opportunity to call for changes

in a management plan.

Once a plan is approved, the State then has

the opportunity to influence Federal activity

in and near the zone due to the “Federal consistency” provision of the Act. The consistency provision is, in actuality, fourfold:

● Federal agencies that conduct or support activities directly affecting the zone
204. Analysis of Laws Governing Access Across Federal Lands

must do so in a manner consistent, to the

maximum extent, with the management

program.

39

Federal agencies undertaking a development project in the zone must ensure

that the project is, to the maximum extent, consistent with the management

program.

40

Applicants for a Federal license or permit affecting land or water uses in the

zone must secure State certification that

the activity complies with the management program before the Federal agency

can grant the license or permit.41

Applicants for Federal assistance under other Federal programs affecting

the coastal zone must include the views

of the appropriate State management

agency on the relationship of the proposed projects to the State coastal zone

plan. 42

Exceptions to the consistency provisions

may be made where the Secretary finds that

the proposed Federal action is “consistent

with the objectives of (the Act) or is otherwise

necessary in the interests of national security.” 43

Section 307(f)44 of the CZMA states that it

does not in any way affect any requirement

that is established by FWPCA, as amended,45

or by the Clean Air Act, as amended,46 or any

requirement that is established pursuant to

either of these Acts by Federal, State, or local

governments. Moreover, the Act goes on to

mandate that such requirements must be incorporated in the plan and must serve as the

water pollution control and air pollution control requirements applicable to the coastal

zone management program.

If there is a “serious disagreement” between any Federal agency and a coastal

State in the development of a management

plan under section 305, or in the administration of the plan under section 306, the

Secretary of Commerce, in cooperation with

the Executive Office of the President, shall

seek to mediate the differences involved.47

Where the disagreement arises over a StateFederal conflict in the administration of the

plan, a public hearing must be held in the

local area concerned.48

Federal land management agencies are

subject to the consistency requirements of the

CZMA.

49 Applications for rights-of-way or

other uses of Federal lands in or affecting

coastal zone areas must be consistent with

any approved State management program,

unless there is a decision by the Secretary of

Commerce that the application is consistent

with the Act or necessary in the national interest. 50 Applicants for permits or rights-ofway involving Federal lands in coastal areas

in a State with an approved plan must secure

State approval of their applications in addition to Federal agency approval.51 Under the

Federal Land Policy and Management Act52

and the Forest and Rangeland Renewable Resources Act,53 as amended, the BLM and Forest Service, respectively, are required to develop management plans for individual management units of public lands and national

forests. For those units in or near designated

coastal areas, the Federal plan should, under

CZMA provisions, be consistent with State

management plans “to the maximum extent

practicable.” Thus, permissible uses of Federal lands in coastal areas may, to a large

degree, be controlled by individual State

plans. 54

In Alaska, where large portions of the

coast will remain in Federal ownership, the

development and implementation of the management program has two likely consequences. First, the affected Federal agencies

will clearly have a major impact on decisions

by the Secretary of Commerce and NOAA regarding the adequacy and provisions of the

program. Second, the management program,

when approved, will provide the State with

an opportunity to influence Federal activity

over a large area in and around the coast,

which would otherwise be totally beyond

State control.
Ch. 6 Federal Land Planning and Environmental Laws ● 205

While

NATIONAL INTEREST

CONSIDERATIONS

the main thrust of the CZMA program is aimed at protecting and preserving

natural resources in the coastal zone, the Act

contains recognition of the needs for resource

development.

Section 306(c)(8)55 requires that State plans

must provide for adequate consideration of

the national interest involved in planning for

and siting of facilities that are necessary to

meet requirements which are “other than

local in nature. ” NOAA regulations elaborate

on the meaning of this provision.56 This requirement is not construed as compelling the

States actually to include accommodations

for certain types of facilities in their management programs.57 It is intended, rather, t o

make sure that such national concerns are

considered at an early stage of State planning

and that such facilities are not arbitrarily excluded or unreasonably restricted in the management program.58 “Requirements, which

are other than local in nature” are considered to be those relating to facilities designed

to serve more than one locality.

NOAA has issued guidelines in the form of

regulations that identify types of facilities

with siting characteristics that the Secretary

of Commerce believes may involve a clear national interest. 59 These national interest re -

quirements include interstate transportation

facilities, such as interstate highways, airports, aids to navigation, ports, harbors, and

railroads. Under the terms of this regulation,

State plans must make reference to the views

of “cognizant Federal agencies” as to how

these national needs may be met in the

coastal zone of that particular State. In the

case of minerals, the cognizant Federal agencies are the Bureau of Mines and the Geological Survey of the Department of the Interior.

For transportation facilities, Federal agencies include the Federal Highway Administration, the Federal Aviation Administration, the

Coast Guard, the Army Corps of Engineers,

the Maritime Administration, and the Interstate Commerce Commission.60

States must consult with appropriate

Federal agencies and neighboring States in

ascertaining local, regional, and national

needs for facility sitings in or affecting the

coastal zone.

61 This coordination must begin

at an early stage of planning, so that national

and regional needs will receive full consideration during the process of program development. The regulations emphasize that the

States should actively seek the advice of concerned Federal agencies, as well as consulting with neighboring States that share

coastal resources, and with regional interstate bodies.

OVERVIEW: MINERAL ACCESS AND

COASTAL ZONE MANAGEMENT

There are three important elements of

State implementation of the coastal zone

management program that should be of active

concern to mineral interests. First, is the

development of a State management program

plan; second, is the opportunity for public

participation in the development of the plan;

and third, is the consideration of national interest involved in the siting of facilities. These

elements are key components in the development and operation of a coastal zone management program and establish the State guidelines and rules for regulation of activities and

uses within the coastal zone. Moreover, Federal agencies, including land management

agencies, are required to conduct their programs and actions in the coastal zone to comply with the State plan, to the maximum extent possible. The Coastal Zone Management

Act and regulations provide for a consideration of mineral resources needs and activities, and require opportunities for public

participation through which the views of the

minerals industry may be heard.

The initial development of a State plan

establishes the limits of the coastal zone ,

designates permissible activities and use s

and their relative priorities, identifies areas

of particular concern, and establishes a State

mechanism for control of land and water uses

in coastal areas. Regulations for setting per-
206 ● Analysis of Laws Governing Access Across Federal Lands

missible uses specifically include in the list of

factors States should consider in the planning

process, a consideration of the requirements

for the extraction of mineral resources and

fossil fuels, and the environmental and economic impacts of these activities.62 Consideration of the transportation needs of the coastal

zone, including transportation necessary for

mineral resources extraction, should also be

reflected in the planning process. The inventory and designation of areas of particular

concern specifically include consideration of

“areas of geologic or topographic significance to industrial or commercial development."63

A primary purpose of the Act is “to encourage the participation of the public, of

Federal, State, and local governments, and of

regional agencies in the development of coastal zone management programs.” 64 To this

end, the Act requires that there be “public

notice and opportunity for full participation

by Federal, State, and local governments,

regional and interstate agencies, and other

interested parties, public and private” in the

development of the State plan and proposals

for modification.65 All public hearings held

under the Act must be announced at least 30

days prior to the hearing date and all agency

materials and documents must be made available to the public for review and study.66 In

addition, Federal regulations issued under

the CZMA are subject to provisions of the Administrative Procedure Act and allow opportunity for public review and comment.67

The ample public participation provisions

in the Act should, in theory, facilitate the

ability of representatives of the mining industry, as well as individual miners and operators, to bring their particular needs and

problems before Federal, State, and local

decisionmakers. At all phases in the development, review, implementation, and modification of State coastal zone management programs these concerns—including special access and transportation needs associated

with operations in or affecting the coastal

zone—can be expressed. However, experience thus far suggests that neither coastal

zone planners nor the mining community have

addressed themselves at any length to the

potential impacts of coastal zone planning on

mineral access.68 It is still relatively early in

the development of the program.69

FOOTNOTE REFERENCES FOR COASTAL ZONE

MANAGEMENT ACT

‘Public Law 92-583, 86 Stat. 1280, oct. 27, 1972, as

amended by Public Law 94-370, 90 Stat, 1013, July 26,

1976, 16 U.S.C. 1451-1464.

‘Council on Environmental Quality, Environ~ental

Quality–1977, The Eighth Annual Report of the CounciJ

on Environmental Quality, 1977, at 109. CEQ reports

that management programs have been approved thus

far for the States of Washington and Oregon and for

the Bay Area Conservation and Development Commission of the San Francisco Bay area and Culebra area of

Puerto Rico. Proposals have also been submitted by

California and the Virgin Islands. Indiana was suspended for failing to make progress in planning a program and has applied for reinstatement.

3Section 306(c)(8); 16 U.S.C. 1455(c)(8).

4

15 CFR 923,52. This section contains two tables,

which are characterized as illustrative of various items

of national interest. Table I, “Facilities in which there

may be a national interest in planning or siting” lists (1)

National defense and aerospace, (2) Energy production

and transmission, (3) Recreation, (4) Transportation,

and (5) Regional water treatment plants. Table II, dealing with resources whose preservation might justifiably

conflict with the national interest involved in the siting

of facilities in table 1, lists minerals, but lists as the

“Major related Federal legislation” only the Mineral

Leasing Act. While this does not mean that hardrock

minerals are not to be considered items of national interest, it may indicate that NOAA has not focused on

this particular area.
Ch. 6 Federal Land Planning and Environmental Laws . 207

515 CFR 923.52(a).

8A discussion of boundaries for the coastal zone is

found at 15 CFR 923, subpart D.

The coastal management area must include the following: (1) areas in which there are “uses subject to

management” (defined at 15 CFR 923.11; in general,

they include facilities which have a direct and significant impact on coastal waters, such as tank farms and

refineries, industrial parks, LNG facilities, ports, etc.,

15 CFR 923.11(c)(2) specifically mentions mineral and

sand extraction.); (2) Special management areas (defined at 15 CFR 923.21 as areas of unique scarce or vulnerable natural habitat or historical significance or

cultural value, areas of high natural productivity or

essential habitat for living resources, and other areas

needing stringent environmental protection); (3) transitional or intertidal areas; (4) salt marshes and wetlands; (5) islands; and (6) beaches. See 15 CFR

923.31(a).

The succeeding section of the regulation identifies

other areas that should be considered for, but are not

required for, inclusion in the coastal management area:

(1) watersheds; (2) waters under saline influence; and

[3) Indian lands not held in trust by the Federal Government.

8Federal-State Land Use Planning Commission for

Alaska, “The D-2 Book, ” Lands of National Interest in

Naska, May 1977, at 42.

‘The coastal management zone cannot include

“lands owned, leased, held in trust or whose use is

otherwise by law solely subject to the discretion of the

Federal Government. ” 15 CFR 923.33(a).

‘“Information concerning the current status of the

Alaska coastal zone plan was provided in a communication from Mr. Roger Allington, a member of the Assessment Advisory Panel, who is serving on the State of

Alaska Coastal Zone Planning Board.

‘lSection 3C)5(b); 16 U.S.C. 1454(b). Interim final

regulations for the development and approval of State

coastal management programs were not issued until

Mar. 1, 1978, after preparation of this analysis; they

superseded previously proposed and final rules governing NOAA’s administration of the Act (see 43 F.R. 8378,

Mar. 1, 1978, for a list of revised and superseded regulations). Although some sections of this analysis were

based on previous regulations, citations are to the revised regulations of Mar. 1, 1978.

IZ16 U.S. C. 1454(b).

IJSection 110 of the Clean Air Act. See 42 U.S. C. 7410

and section 208 of the Clean Water Act, 33 U.S.C. 1288.

“Section 305(c); 16 U.S,C. 1454(c).

’

5

15 CFR 923, subpart D, supra, notes 6 and 7.

I“15 CFR 923, subpart B.

’

7

15 CFR 920.12.

’

8

38 F.R. 33046, NOV. 29, 1973.

1915 CFR 923.21(d).

2015 CFR 923.21(d)(l)(v).

ZISection 306(a); 16 U.S.C. 1455(a).

Zzsection 305(a~2); 16 U.S.C. 1454( a12).

Zqsee 43 F.R. 8378, Mar. 1, 1978.

24Section 306 (c)(l); 16 U.S,C. 1455 (c)(l).

2542 U.S.C, 3334.

Zesection 3(xj(c)(2); 16 U.S. C. 1455(c)(2).

27Section 306(c)(3); 16 U.S.C. 1455(c)(3),

Z’Section 306(c)(4); 16 U.S.C. 1455(c)(4).

2gSection 306(c)(5); 16 U.S.C. 1455[c)(5).

30Section 306(c)(6); 16 U.S,C, 1455(c)(6).

3’Section 306(c)(7); 16 U.S.C. 1455(c)(7).

Jzsection 306(e)(l); 16 U.S. C. 1455(e)(l). These three

control techniques are discussed at some length in the

Mar. 1, 1978 regulations, 15 CFR 923,42, at 43 F.R.

8407.

J’Section 306(e)(2); 16 U.S.C. 1455(e)(2).

34Section 306(c)(8); 16 U.S.C. 1455(c)(8).

35Section 306(c)(9); 16 U.S.C. 1455(c)(9).

3615 CFR g23.3(f). Mineral extraction is specifically

mentioned among resource development policies.

3715 CFR g23.62. NOAA requires that State management programs be accompanied by “an environmental

impact assessment that meets the requirements of the

National Environmental Policy Act.” The Office of

Coastal Zone Management uses this information to

determine if it must prepare an environmental impact

statement. (It is almost impossible to conceive of a

situation in which an EIS would not be needed. ) Procedures for timing and review of the EIS are set forth at

15 CFR 923.72.

Sasection 304(1); 16 U.S.C. 1453[1). See 15 CFR

923.33(a).

3gSection 307(c)(1); 16 U.S.C. 1456(c)(1).

‘Section 307(c)(2); 16 U.S.C. 1456(c)(2).

4’Section 307(c)(3); 16 U.S.C. 1456(c)(3).

42Section 307(d); 16 U.S.C. 1456(d).

‘sSection 307(c)(3)(A), section 307(c)(3)(B)(ii) and section 307(d); 16 U.S.C. 1456(c)(3)(A), 16 U.S.C. 1456(c)(3)

(B)(ii), and 16 U.S.C. 1456(d). See 15 CFR 930, Subpart

H, “Secretarial Review Related to the Objectives and

Purposes of the Act and National Security Interest. ”

“16 U,S.C. 1456(f). See 15 CFR 923.44.

4542 U.S. C. 7401 et Seq.

’33 U.S.C. 1251 et seq.

‘

7 Section 307(h); 16 U.S.C. 1456(h). See 15 CFR 930,

Subpart G, Secretarial Mediation.

48 Section 307(h)(2); 16 U-S*CO 1456(h)(2). See 15 CFR

93o, Subpart G, Secretarial Mediation.

‘QNOAA has recently published a final rule on

Federal consistency with approved management programs, 43 F.R. 10510, Mar. 13, 1978. Consistency requirements for Federal lease or permit programs are at

15 CFR 923, subpart D.

S015 CFR 923, subpart H.

Slsee 15 CFR g30.63, State agency concurrence with

applications for Federal permits or licenses; 15 CFR

930.64, Effects of State agency objection. NOAA regulations provide a process by which a State may list in

advance certain Federal permit and license activities

which must be reviewed for consistency, 15 CFR

930.53, and an associated procedure by which a State

may have an opportunity to review other Federal permit and licensing activities should they prove to have an
208 “ Analysis of Laws Governing Access Across Federal Lands

impact on the coastal zone, 15 CFR 930.54. Both procedures allow for review of Federal permits and licenses

relating to activities which actually take place outside

the boundaries of the zone, but have an impact within

the zone (see Comment, 15 CFR 930.53(b)). Whenever a

State reviews an action, the applicant for the Federal

permit or license must provide the State reviewing

agency with data and information necessary to assess

the impact of the proposed activity on the affected

coastal zone. The State agency must provide for public

notice of the application, 15 CFR 930.61, and, at its discretion, public hearings on the conformity of the activity with the management plan. Under the regulations,

the applicant is initially required to certify that its application is in accord with the management plan, 15

CFR 930.57. The State acts as a reviewer, either concurring in the applicant’s assessment, 15 CFR 930.63,

or objecting, 15 CFR 930.64. If the State agency objects,

then the Federal agency may not issue the permit or

license, 15 CFR 930.65, unless the Secretary overrides

the State decision under 15 CFR 93o, subpart H.

sz~blic Law 94-579, 90 Stat. 2743, oct. 21, 1976, 43

U.S.C. 1701 et seq. Planning requirements are at section 202, 43 U.S.C. 1712. It states, in part, that: “In the

development and revision of land use plans, the Secretary (of the Interior) shall . . . (9) to the extent consistent with the laws governing the administration of the

public lands, coordinate the land use inventory, planning, and management activities of or for such lands

with the land use planning and management programs

of other Federal departments and agencies and of the

States and local governments within which the lands

are located, ., . Land use plans of the Secretary under

this section shall be consistent with State and local

plans to the maximum extent he finds consistent with

Federal law and the purposes of this Act. ” Section

202(c)(9), 43 U.S.C. 1712(c)(9).

SJfiblic Law 93-378, 88 Stat, 476, Aug. 17, 1974, as

amended by Public Law 94-588, 90 Stat. 2949, Oct. 22,

1976. 16 U.S.C. 1601, et seq. Section 6 contains requirements for national forest system planning, 16

U.S,C. 1604, but contains no specific mention of consistency with State or local management plans.

54There is no provision for direct State approval or

disapproval of agency land use plans that control

development within the coastal zone. The consistency

requirement technically affects only direct Federal

agency activities and activities requiring a Federal

license or permit, not plans or procedures that maybe

determinative of agency choices of which activities will

be undertaken and which licenses and permits will be

granted. Of course, if agency plans and procedures are

not sensitive to coastal zone management programs,

then they will merely create an internal procedure that

makes choices that can be nullified when they reach

fruition as direct action, licenses, or permits. Significantly, the consistency regulations do contain a provision describing a process by which management plans

and the consistency requirement will be applied directly to OCS plans, 15 CFR 93o, subpart E. The impact of

OCS activity on the coastal zone and the question of

control over that activity remains controversial and

has been a central force in the development of the entire coastal zone program. It is likely that in framing the

consistency regulations, as elsewhere in developing the

regulatory structure for administration of the Act,

other types of land use and other Federal land use planning efforts were not considered in great detail.

5516 U,S,C, 1456(c)(8).

5815 CFR 923.52.

5715 CFR 923.52(a).

s81d.

s~see table I, 15 CFR 923.52.

‘Id,

8115 CFR g23.52(f). In addition to the national interest

provision, the Act and regulations contain a related

provision concerning “uses of regional benefit,” 15 CFR

923.12 and 15 CFR 923.43, designed to ensure that a

State plan does not prevent the development of projects

that are of regional benefit.

‘Zsee 15 CFR 923.2(d)(8), 15 CFR 923.3( f)[2).

’

3

15 CFR 923.21(d)(l)(v).

e’section 303(d), 16 U.S.C. 1452(d).

esseetion 306(c)(1); 16 U.S.C. 1455(c)(1).

eesection 308; 16 U.S.C. 1457.

8TSection 314; 16 U.S.C. 1463.

‘As part of this assessment, OTA commissioned two

studies of the relationship between developing coastal

zone management programs and questions of mineral

access. One study, “E~~ects of the Federal Coastal Zone

Management Act of 1972 on Access to Minerals on NonFederal Lands, ” Earth Satellite Corporation, 1977, was

a review of programs and interviews with public and

private representatives in the States of Delaware,

Maryland, and New Jersey. The other study, “Coastal

Zone Management and Access to Onshore Minerals on

Non-Federal Lands—A Threshold Assessment, ”

Theberge and Whitney, 1977, analyzed laws and interviewed mining interests (from major hardrock mining

operators to small sand and gravel producers) and

coastal zone regulatory personnel in the States of

Virginia, North Carolina, and South Carolina.

Both studies came to similar conclusions. Earth

Satellite reported:

Direct (resulting from implementation of the

Act) or indirect (resulting from State and local

laws and regulations developed as a result of the

general attitude towards land management and

environmental protection fostered by CZMA and

related Federal laws) environmental, social/cultural, economic, national security, recreation/

scenic, transportation, institutional, or other effects on onshore non-Federal mining resulting

from the CZMA have not been identified,

All but a few of the mineral producers in the

three State area are small businesses; most are

unaware of the CZMA and none could cite specific

access or blockage problems resulting from the

Act.
Ch. 6 Federal Land Planning and Environmental Laws ● 209

Theberge and Whitney found:

Even in States that have enacted or are adopting

comparatively advanced coastal management and

planning programs, such programs have not as yet

expressly addressed the issue of access to minerals in the coastal zone, although both North

Carolina and South Carolina have regulatory process and authority to do so. Although the CZM planning phase will soon enter its fourth and final

year, mining interests still have an opportunity to

play a meaningful role in plan development.

This lack of focus on mineral access is understandable. Plans are still in the development stage. Other

controversies such as OCS development and public access to beaches have dominated the coastal zone planning process. Issues such as Surface Mining legislation,

the Clean Air Act, and Alaska National Interest Lands

have had higher priority for the mining community.

However, the findings of the two reports—while

clearly an accurate reflection of the situation in the

places and times studied—may not portray the relation

of coastal zone management to minerals access at later

times or in other States. The States studied shared the

following characteristics: (1) None were far advanced

in management planning; (2) The major mining activity

was the extraction of common variety minerals; (3) All

the States involved had highly developed coastlines

with a history of land use control by pervasive and comprehensive zoning laws; and (4) None of the States had

a particularly major Federal presence on or near the

coastal zone. It is conceivable that coastal zone

management will have a more appreciable impact on

mineral access, in any State, when a final plan is approved and operational, and that it might have a more

significant effect in States with hardrock mining potential in the coastal zone, in States which do not have a

history of land use controls on coastal areas, or in

States which have a significant Federal land management presence on the coastal zone.

e9Alaska has yet to submit a CO&3tal zone management plan. Some steps have been taken at the State and

local level to begin the process. State legislation passed

in 1977, S. 220, establishes a framework for State control over local decisions as allowed by section 306(e)

(l)(A) of the Act, 16 U.S.C. 1455(e)(l)(A). A Coastal Zone

Policy Council will develop guidelines to be implemented at the local and regional level. Every local government unit bordering on, or located in an area that

has a significant impact on the coast will have authority to implement these guidelines. In unorganized areas,

special new boards and commissions have been established to control use of the coast or land and water having an impact on the coast. The effects of the consistency provision will have a major bearing on the operation of the management program in Alaska for two

reasons: (1) major exploration, development, and production programs planned as part of the OCS program

and (2) the large amount of coastal lands that will remain under Federal ownership even after State and

Native land selections are completed. The roles of Alaska Natives and the Native Corporations, which have

large coastal holdings, have yet to be clarified. Although Indian tribes can operate as regional planning

agencies, 15 CFR 923.92(e), the Corporations are not

tribes. However, villages will implement the State

Guidelines. Material supplied by Roger Allington, see

supra, note 10.
7

Options for

Congressional Consideration
————.— .

Chapter 7.— OPTIONS FOR CONGRESSIONAL

CONSIDERATION

Page

TABLE

Page

5. Summary of Selected Congressional Action Options . . . . 216
Options for

Congressional Consideration

INTRODUCTION

Congress, through the legislative decisions

called for by section 17(d)(2) of the Alaska

Native Claims Settlement Act (ANCSA), has a

unique opportunity to influence Alaska’s economic development while protecting its environmental values. The unprecedented land

grants under ANCSA and under the Alaska

Statehood Act, which many view as the foundation of Alaska’s economic future, are creating major changes in its landownership patterns.

Following the conveyance of Native and

State lands, approximately 60 percent of the

State will remain in Federal ownership. Congressional decisions about the management

of these Federal areas could affect mineral

resource development on nearby non-Federal

lands. The access policies of Federal land

management agencies are thus of critical

concern to non-Federal landholders. This is

particularly true in remote sections of Alaska

where topography, landownership patterns,

and the lack of an extensive surface transportation system combine to isolate many

areas from potential markets for their products.

Compared with the rest of the United

States, Alaska has a limited surface transportation system. Most of the settlements

throughout the State are connected by air.

However, the development of mineral resources—with the exception of certain precious metals—requires a transportation system able to move large quantities of bulk

materials to market. In most of Alaska, a surface transportation system—a railroad or

highway—would be the only mode capable of

transporting bulk ore.] Resolution of uncertainties about the availability of possible

routes crossing Federal lands and about the

conditions of their use could facilitate State

planning and decisionmaking on the develop

ment of specific transportation systems.

Congressional designation of vast areas of

Alaskan lands for conservation purposes, for

example as parks and wildlife refuges, immediately places a restriction on their availability for other purposes. This includes their

use for transportation routes and for access

‘For a discussion of mineral transportation requirements see OTA working paper, John W. Whitney and

Dennis Bryan, “Assessment of Transportation Access

Requirements for Minerals Exploration and Mine Development and Operation in Alaska, ” in Analysis of

Laws Goverm”ng Access Across Federal Lands: Options

for Access in Alaska, Volume II, Working Papers (OTAM-76),

213

40-894 0 - 79 - 15

Ch. 7 Options for Congressional Consideration ● 215

Photo Credit: The Alaska Coal/l/on

The primary mode of transportation throughout most of Alaska is by air. Here, a Hercules air transport plane

unloading heavy equipment for Trans-Alaska Pipeline construction

to non-Federal lands. Whether or not Congress specifically addresses future transportation demands and access needs in legislation on the proposed conservation areas, the

d-2 decisions, either expressly or by implication, will have access policy aspects that

could influence resource development on surrounding non-Federal lands.

Because of the importance of the congressional access policy decision to the development of mineral resources in Alaska, a range

of possible congressional options that address the issue of the use of Federal lands for

access have been identified. The access options, which are discussed in this chapter,

range from the extension of the existing access policies of Federal land management

systems, through special provisions for Alaskan right-of-way exceptions and Alaskan

transportation system needs, to a restrictive

access policy that would deny most access

uses of the conservation system lands—the

d-2 lands. (See table 5.) These options were

examined using information obtained from

case studies and interviews.

In addition to the access policy options discussed in this chapter, there are other alternatives that could aid access to mineral resources on non-Federal lands in Alaska. Some

actions relate to Federal land management

issues, such as the settlement of land selections and easement issues under ANCSA and

the Alaska Statehood Act or providing assistance to those seeking access across Federal

lands that are under new management systems. Other alternatives include planning

and technical assistance to State and local

governments and to Native Corporations for

developing non-Federal natural resources

and Alaskan transportation systems while

balancing this development against the conservation systems’ objectives of preservation

and recreation.

The availability of possible transportation

routes to serve non-Federal lands in Alaska

will be influenced by the congressional decision about whether or not to allow surface access across Federal lands placed in conservation systems. If Congress allows access, it

could be an incentive to Alaska’s efforts to
Table 5—Summary of Selected Congressional Action Options*

,.. -. . .

.

Access through application of existing

laws.

Now

Congress makes d-2

lands designations

without any provision

for nonrecreational

access.

Existing Institutions Existing institutions

Now

Existing institutions

Now

Existing institutions

Now Now

Exwtlng institutions

“For a complele discussion see text

‘Exlstmg mstltutions include. Department of the lnterlor —Bureau of Land Management, National Park Serwce, Fish dnd Wtldllte Swwce; Department of Agriculture—Foresl Service

‘Existing dgencles revolved in transportation decislonrnakmg include: Department of Transportation—Federai Htgtlwdy Admuustratlon, Federal Aviation Admmistration, Fedt?rd Rali

road Admlnlstratlon, Interstate Commerce Commwslon; U.S. Coast Guard, Department of the Army, Corps of Engineers, and the Federal Power Commission
Ch. 7 Options for Congressional Consideration ● 217

Photo Credit: The Alaska Coalition

Dog sled team— a traditional means of transportation in rural Alaska
218 ● Analysis of Laws Governing Access Across Federal Lands

generate a State transportation plan and priorities. Resolution of the uncertainty about

the possible use of Federal d-2 lands for

transportation purposes could facilitate t he

State’s initial planning and evaluation of the

transportation needs. This, in turn, could

have the effect of encouraging mineral exploration and development.

Specific transportation projects must still

be evaluated under established decisionmaking procedures. This evaluation process includes consideration of the economic, environmental, social, engineering, and transportation aspects of a proposed project. It

also provides opportunities for the participation of State and local governments, Native

Corporations, and other concerned interests.

The approval of the Federal land manager is

also necessary before a transportation system can be constructed over any Federa l

lands.

Should Congress decide to limit or prohibit

the surface access use of conservation system lands, mineral exploration and development might be discouraged in those areas of

Alaska that have no existing means of transporting bulk materials. Placer mining, primarily for precious metals, however, would

be expected to continue. As a possible alternative, Congress could decide to allow access

in some areas and to deny it in others. It is

conceivable that future technological innovations will make it possible to transport large

quantities of minerals in new ways. These innovations might include dirigibles, or lowdraft hover craft that would be able to move

heavy loads in an arctic environment. This

could allow exploration and development in

those areas where surface access across

Federal lands is not permitted. At present, no

such innovative technologies are available.

The Federal land management laws that

directly control physical and legal access

across Federal lands to mineral deposits o n

non-Federal lands, are analyzed in chapter 4.

Potential limitations are identified in the access provisions of the laws that govern t he

various land management systems as they

might affect the emerging landownership

situation in Alaska.

FEDERAL LAND

EXISTING

MANAGEMENT SYSTEMS–

ACCESS PROVISIONS

The Federal land management systems include the public lands, which are managed by

the Bureau of Land Management (BLM); and

those lands which are referred to in this report as the national conservation system

lands. These include: the National Park System, the National Wildlife Refuge System, the

National Forest System, the National Wilderness Preservation System, and the National

Wild and Scenic Rivers System.

The National Park System lacks any explicit right-of-way provision granting access

through park areas to non-Federal lands.

While the absence of a specific provision authorizing grants of rights-of-way across national parks does not bar such use; at the

same time, it does not provide assurance to

non-Federal landholders who may need to

cross park lands. This lack of any assurance

of access and of the terms and conditions of

rights-of-way could deter potential developers of non-Federal lands.

The Wilderness Act provides exceptions to

its prohibition on roads and mechanized

modes of travel through Federal wilderness

areas for the holders of existing rights, and

for the access needs of owners of private

lands that are wholly surrounded by national

forest wilderness areas. These exceptions do

not extend to owners whose lands are surrounded by national park or refuge wilderness areas unless Congress expressly ex-
Ch. 7 Options for Congressional Consideration ● 219

tends them to specific units. Even with such

an extension, the exceptions for surrounded

private lands and existing private access

rights might not provide adequate assurance

of access to isolated, but nonsurrounded, nonFederal lands. Construction of surface transportation systems through wilderness areas

is prohibited without specific congressional

approval. No statutory mechanism exists,

however, to review the need for any such exceptions. In Alaska, where there are large

areas of Federal lands proposed for wilderness status, a lack of extensive surface transportation, and topographic and engineering

restrictions that limit the availability of possible access routes, express congressional approval will be required for any future surface

transportation systems that cross wilderness

areas.

Even after the passage of Alaska Lands

legislation, uncertainty may still persist about

the access use of the remaining public lands

because of the wilderness study requirements of section 603 of the BLM Organic Act

of 1976. All roadless areas of 5,000 acres or

more, identified by the BLM as possessing

wilderness characteristics, are to be classified for wilderness study as potential additions to the National Wilderness Preservation

System. They must be managed so that their

wilderness character is preserved until the

final administrative and legislative reviews

are completed. The interim management of

these areas restricts any uses that might

damage their wilderness value. Consequently, most surface access uses and transportation modes commonly used to move bulk minerals are prohibited. Interim restrictions on
220 ● Analysis of Laws Governing Access Across Federal Lands

access across wilderness study areas could

delay expansion of Alaska’s surface transportation network.

The access provision of the Wild and

Scenic Rivers Act distinguishes between the

components of this system that are managed

by the Secretary of the Interior and those that

are managed by the Secretary of Agriculture.

Rights-of-way across wild and scenic rivers

areas that are under the jurisdiction of the

Secretary of the Interior are governed by the

access provisions applicable to the National

Park System. Rights-of-way over components

that are managed by the Secretary of Agriculture are governed by the access provisions

applicable to the National Forest System.

The classification of a river as wild, scenic,

or recreational is made according to certain

characteristics, including its accessibility by

road; wild rivers are the least accessible,

scenic rivers are more accessible, and recreational rivers are the most accessible.

Rivers are to be managed to preserve the

values that led to their initial designation and

classification. Therefore, any access use that

might be detrimental to these values would be

discouraged.

The remaining Federal land management

systems—the public lands, the National Wildlife Refuge System, and the National Forest

System—all have specific statutory authority

to grant access across management areas.

TRANSPORTATION AND MINERAL RESOURCE DEVELOPMENT

Problems stemming from Alaska’s limited

transportation system are compounded by

the lack of long-range transportation plans.

Access constraints on mineral-related activities are greatest in those regions where

there is no surface bulk transportation.

Where some surface transportation already

exists, the potential for mineral resource

development could be expanded through the

improvement of existing facilities to allow

movement of minerals on a large scale.2

ZThere are, of course, many other factors that have

deterred mineral resource development in Alaska and

there are diverse opinions as to the likelihood of largescale hard-rock mineral development in the future. See:

Whitney, supra, note 1; Bradford H. Tuck, Land Use

Planm”ng, the (D12) Lands, and Alaska Resources; Some

Economic Considerations, Federal-State Land Use Planning Commission for Alaska, August 1977; John V. Krutilla and Sterling Brubaker, Alaska Nationcd Interest

Land Withdrawals and their Opportunity Costs, February 1976, reprinted in House Comm. on Interior and Insular Affairs, Subcomm. on General Oversight and

Alaska Lands, Background Information for Alaska

Lands Designations, 95th Cong., 1st sess., (Comm. Print

No. 4, 1977) at 158; and Paul Engelman and Bradford

Tuck with Jerry D. Kreitner and Dennis M. Dooley,

Transportation and Development of Alaska NaturaJ l?esources, Federal-State Land Use Planning Commission

for Alaska, March 1978.

Legislative designation of new additions to

the national conservation systems will affect

the availability of Federal lands for transportation systems. Rights-of-way across lands in

conservation classifications are not available

under the same conditions as rights-of-way

across unreserved public lands.

Decisions about the size, costs, routes, and

associated land use of major transportation

systems cannot be made without appropriate

governmental planning. Alaska is now in the

process of assessing various proposals for

meeting statewide transportation needs.

Legal, physiographic, and engineering considerations can dictate the choice of one

route over another. Although proposed national conservation units may include some

natural access routes, it is not presently

possible to determine which routes will be

needed to serve future community and resource development needs. The Federal-State

Land Use Planning Commission for Alaska

(FSLUPCA) was given a statutory mandate to

identify transportation routes and necessary

easements. It concluded that the State’s economic and transportation needs were not suf-
Ch. 7 Options for Congressional Consideration ● 221

ficiently defined to designate specific transportation corridors. 3 Until the information

necessary to formulate long-range planning is

available, there can be little certainty about

when and where future transportation facilities should be built. The lack of such information will hamper decisionmaking by Congress

and Federal land managers, as well as by

non-Federal landowners and mineral resource developers.

ACCESS POLICY OPTIONS

Five general legislative access policy options (see table 5) were developed to present

a range of approaches to the policy question

of whether and for what purposes access

should be permitted across Federal lands in

Alaska. These access options deal only with

Alaska lands.

The legislative access options are:

1.

2.

3.

4.

The application of existing access policies to Alaskan additions to national conservation systems.

A deferral of congressional action on an

access policy for Alaskan conservation

system lands.

Limited provisions for Alaskan access

needs.

(A) An Alaska Lands right-of-way provision; and

(B) The exclusion of access routes from

conservation system classifications

by means of boundary adjustments

and land exchanges.

Alaskan transportation system access

provisions.

(A) An Alaskan transportation system

right-of-way provision;

(B) The designation of specific transportation corridors to accommodate the development of the transportation system; and

(C) The establishment of a special commission to review and recommend

3

Federal-State Land Use Planning Commission for

Alaska, “The D-2 Book,” Lands of National Interest in

Alaska, May 1977, at 129.

rights-of-way for transportation

systems through conservation

lands.

5. The restriction on the use of Alaskan

conservation system lands for access.

In developing and selecting these access

policy options, five common components of

each option were identified. The five components are:

1. The access policy decision—whether or

not to permit the use of Federal lands for

access use.

2. The timing of the policy decision.

3. The legislative implementation of the

policy decision.

4. The executive implementation of the legislative policy decision.

5. The relation between the access policy

and how Alaskan transportation system

decisions are to be made.

The central component of each option is

whether or not to allow the use of Federal

lands for access purposes. If allowed, access

is authorized through the grant of a right-ofway or permit to cross Federal lands to reach

non-Federal lands. Congress may choose to

allow or to deny access, or it may adopt a

combination approach which allows access

in some instances and denies it in others. This

could be done by imposing conditions on allowable access for a certain class of users, or

purposes, or for particular geographic regions or conservation units.
222 ● Analysis of Laws Governing Access Across Federal Lands

The second component is the timing of congressional action. Congress could decide now

on an access policy as part of the d-2 legislation or it could pass legislation specifically

deferring a decision on either the access

issue alone or on the entire d-2 lands proposals. Congress could also decide not to take

action on the d-2 lands proposals, an access

policy, or a specific deferral of the access

decision.

The third component is the selection of a

legislative approach for implementing the access policy decision. There are three ways in

which Congress can implement its access

policy decision. The first is to take no specific

legislative action on access. This would be

done by making no provision in the d-2 lands

legislation for access use of lands designated

for conservation systems. The effect of this

approach, in the absence of express legislative provisions, would be to extend by implication the existing laws and institutional

mechanisms that control the access uses of

designated lands. For example, the classification of some d-2 lands as wilderness would

deny indefinitely most access uses in those

areas by the operation of the Wilderness Act

prohibitions. On the other hand, placing the

same lands in a system with a broad purpose

right-of-way provision would imply that access across these areas would be allowed, in

the discretion of the managing agency, under

existing laws.

The second legislative approach would be

to enact a specific provision setting forth the

conditions for the access use of Alaska lands.

This could take the form either of a new separate provision of law or of an amendment to

an existing law governing Federal land management systems. The specific additional

access assurances or limitations would be in

accordance with the basic access policy

adopted by congress.

The third legislative approach would be to

rely on existing laws and policies, but to increase legislative oversight to ensure that the

congressional intent is carried out. Remedial

legislation could be enacted if and when existing access provisions appeared to be inadequate.

The fourth component is the selection of an

approach for executive implementation of the

access policy decision. This entails first naming an agency or a department to carry out

the legislative policy, and then adopting a

decisionmaking process for implementation.

[This designation of an agency and a procedure can be express or implied.) If there is no

contrary legislative declaration, additions to

existing national conservation systems—National Parks, Refuges, Forests, Wilderness,

and Wild and Scenic Rivers Systems—are

managed by the departments and agencies

currently responsible for the management of

each of these systems under existing laws

and procedures.

Congress could also modify existing agencies and procedures or establish a new managing agency or decision process, An example would be the establishment of a joint Federal-State commission to review and coordinate the access uses of Alaskan conservation

system lands. Such a joint commission would

be a new executive body and its reviewing

authority would be a modification of the existing decision process.

The fifth component is the relationship between the access policy and how Alaskan

transportation system decisions are to be

made. The need for transportation, the selection of mode and routes, and the method for

financing the system are all determined

under the existing decisionmaking apparatus

of the Department of Transportation (DOT).4

Congress can continue the existing institutions and procedures, or it can modify the existing situation, for example, by adding a joint

commission or advisory panel to the decision

process, or by requiring congressional review

and approval of transportation system proposals involving the use of d-2 lands. Congress can also expressly set a transportation

4See discussion of section 4(f) of the Department of

Transportation Act in chapter 6 for a description of

transportation decisionmaking procedure.
Ch. 7 Options for Congressional Consideration ● 223

policy by banning the construction of surface

transportation systems on conservation system lands. This ban would have the effect of

restricting the choices of both the mode and

the routes of potential transportation systems. Another possibility is that Congress

could specifically encourage a mode or route.

This could be done, for example, by including

a right-of-way provision for the possible

future expansion of the Alaska railroad

through certain conservation system units.

There are a number of additional conditions that could be included in developing access policy options for Alaskan lands. Some of

these are:

●

●

●

●

political-approval and review by local,

State, and/or Federal bodies could be

required as a prerequisite to granting

access.

Environmental—environmentally acceptable construction standards could

be required (both on and off Federal

lands) to minimize damage to protected

scenic, ecological, and wildlife areas.

Economic—the disclosure of financial

and ownership information could be required for right-of-way permits; transportation systems could be required to

be wholly or partially financed by beneficiaries; Federal aid or direct grants

could be provided for transportation

projects to serve conservation systems

and mineral development; loan guarantees or other financial incentives for

Alaskan transportation systems could be

provided.

Administrative—time limits could be imposed for processing applications for access permits and rights-of-way, and

agencies could be required to coordinate

their review of all applications; seg-

●

●

mented approvals of large-scale projects

that cross several management systems

could be limited.

Long-range planning—State and local

governments and Native Regional and

Village Corporations could be required

to submit long-range plans for access

and other future resource development

needs to minimize ad hoc decisionmaking

on transportation systems and the proliferation of access routes.

National security—special access exceptions for emergencies such as national defense needs or critical materials shortages could be provided.

Each of the access policy options is discussed below. The discussion includes the option, its modifications, its advantages and

disadvantages, and the potential effects on

mineral exploration and development activities. Each option was structured to present a

particular approach to the access issue so

that its advantages and disadvantages would

become more apparent. No single option was

designed to meet the needs of all interest

groups. Consequently, a combination of several options may prove to be the most comprehensive approach to the dual characteristic of access—the access needs of non-Federal landowners to cross Federal areas to

reach their lands and the potential broader

need to construct major transportation systems across Federal areas to serve economic

development and community needs.

It should be kept in mind, however, that the

choice of an access policy for Alaska d-2

lands involves a balancing of many competing

interests and values, not just the access

needs for the development of hardrock mineral resources of non-Federal lands, which is

the focus of this assessment.
224. Analysis of Laws Governing Access Across Federal Lands

OPTION l–THE APPLICATION OF EXISTING

ACCESS POLICIES TO THE ALASKAN ADDITIONS

NATIONAL CONSERVATION SYSTEMS (STATUS QUO)

Option 1, or the status quo approach,

would extend the existing access policies of

Federal land management systems to the conservation systems additions. Congress would

designate specific areas as parks, wildlife

refuges, forests, wild and scenic rivers, or

wilderness areas. No express legislative access provision is needed to extend the existing land management system access policies to the new additions. Special access provisions that relate to management program,

administrative, or recreational access purposes could be included without altering the

basic thrust of this approach. An example of

such a special provision would be an exception for the established use of snow machines

or aircraft in wilderness areas for recreation, local travel, or subsistence purposes.

To implement this policy, the managing

agency of each system would apply the rightof-way and access authorities, regulations,

and procedures now in force. This option

would continue the variations in access policies that currently exist among the different

Federal land management systems.

Under Option 1, grants of access would

continue to be made on a case-by-case basis,

and the determination would depend on the

specific circumstances of each application.

Requests for the use of Federal lands for the

development of transportation systems would

be evaluated under the existing decisionmaking processes. The most available Federal

lands for access needs would be National

Forest System and public (d-1) lands, except

those in wilderness study or other limited-use

classifications. Right-of-way approval is left

to the discretion of the managing agency. The

use of wilderness areas for transportation

routes would require congressional approval

in most cases. The use of park, refuge, or wild

and scenic rivers systems lands for access

must be consistent-with the purposes of the

system. The grant of access is left to the

discretion of the agency. Furthermore, the

use of park and refuge lands would be subject

to a 4(f) review for DOT-funded projects. 5

Planning, approval, and construction of

transportation systems would continue to be

the responsibility of existing State and Federal transportation agencies and departments.

The extension of existing access policies to

Alaskan conservation units does not mean

that those policies are fixed in their present

%ee discussion of section 4(f) of the Department of

Transportation Act in chapter 6. DOT 4(f) review is an

independent review to determine whether there is a

prudent and feasible alternative to a proposed use of

park, refuge, or recreation lands, or a historic site for a

transportation project. If not, then DOT funds can only

be expended if every effort has been made to minimize

damage.
Ch. 7 Options for Congressional Consideration .225

form. Current laws could be modified in response to specific access problems, to new information generated from the ongoing Alaskan Mineral Resources Assessment Program

(AMRAP), to wilderness and transportation

planning studies, or to changes in congressional or public sentiment. Congress may

enact legislation to review or to change the

access provisions of Federal land management laws. Moreover, under the broad discretionary management authority vested in

the Secretary of the Interior and the Secretary of Agriculture, some access policies and

regulations may be changed administratively

in response to specific problems.

Under this option, the shortcomings and

uncertainties of the access provisions in the

existing laws would continue. Consequently,

mineral exploration and development activities on non-Federal lands in isolated areas,

where it might be necessary to cross park or

wilderness lands, might be deferred or abandoned. By settling the question of the management system classification for most of Alaska’s remaining lands, the d-2 land designations would reduce some of the uncertainties

about access.

Transportation system planning and development would continue at its current pace

under this option. There would also be improvements in existing transportation systems. Ad hoc decisions to allow the access

use of Federal lands, such as the TransAlaska Oil Pipeline authorization, could occur in response to specific needs.

The effects of implementing Option 1 will

vary according to the area and system involved. In some areas (such as nonsurrounded isolated lands in some wilderness

areas and parks) access uses may be denied

without any express congressional action. In

other areas, access to non-Federal mineral

lands will be unaffected or at least reasonably available, as long as the existing transportation systems can be improved, as necessary, for mineral resource development,6 and

there are no blockages by tracts of Federal

lands. As roadless BLM-public land areas are

identified and placed in the protected wilderness review category, the availability of access across d-1 lands could become a future

source of uncertainty for resource developers.

‘Recognized rights-of-way, established by public use

as roads or trails before the 1976 repeal of 43 U.S.C.

932, are existing access rights and thus should be unaffected by d-2 land designations.

OPTION 2–THE DEFERRAL OF CONGRESSIONAL

CONSIDERATION OF AN ACCESS POLICY FOR ALASKAN

CONSERVATION SYSTEM LANDS

ACCESS TIMING OF IMPLEMENTING

POLICY ACCESS LEGISLATIVE INSTITUTIONAL TRANSPORTATION

DECISION DECISION IMPLEMENTATION ARRANGEMENT SYSTEM DECISION

Specific deferral of ac- Deferral-now; Access Specific deferral provi- Existing institutions. Existing decision

cess policy involv- decision--later. sion in d-2 Iegisla- mechanism--transporing d-2 designations tion. tation systems use of

and remaining Federal Federal d-2 Iands

lands in Alaska until a delayed until policy

certain date, or some decision.

event in future, or indefinitely.
226 “ Analysis of Laws Governing Access Across Federal Lands

Under Option 2, Congress would specifically defer the question of the access use of

Alaskan conservation system lands. There

are several means of deferral. In enacting the

final d-2 designations, Congress could include

a provision specifically deferring the adoption of an access and right-of-way policy for

Alaskan conservation system units for future

consideration. This delay could provide time

for new and ongoing studies to be completed

and for specific Alaskan transportation system project proposals to be prepared. (Alternatively, Congress could delay action on the

d-2 proposals and extend the legislative

“deadline” imposed by the expiration of d-2

withdrawals on December 18, 1978.) In addition, Congress may specify the procedure to

be used in its future considerations of the access issue. In the interim, existing access

policies could be applied to the d-2 additions

to the conservation units, or alternatively, the

deferral could be combined with a moratorium on agency approval of any nonessential

access use of Alaska National Interest Lands.

If no moratorium on nonessential access

uses is imposed, Option 2 is similar to Option

1 in that the access policies of existing land

management systems are applied to Alaskan

conservation system additions. However, by

deferring the decision on the final access

terms and conditions, Option 2 continues the

period of uncertainty about access policies of

some Federal lands. This uncertainty could

discourage the expansion of mineral exploration and development in affected regions.

This option also allows time for specific

studies to be completed (such as AMRAP and

wilderness reviews), for final Native and

State landownership patterns to be determined, and for State transportation planning

to proceed.

The advantage of this option is that it

would assure future congressional review of

the access issue and thus would provide an

opportunity for the consideration of additional detailed information and for the emergence of clearly defined access needs. The

time for such a reconsideration could be set

at some future date, such as in 2 or 10 years;

or in a specific year, such as 1990. It could be

based on some future event, such as the completion of ongoing and proposed studies dealing with Alaskan resources and transportation issues; completion of the AMRAP surveys; the final conveyance of the State and

Native land selections; the completion of

State or regional transportation plans; or the

completion of the approved management

plans for the new units added to conservation

systems.

As part of the deferral, Congress could request new studies and recommendations

about access policies from the land management agencies, from the State, or from a commission specifically established to deal with

access questions in Alaska. The studies could

include an examination and report on needs,

on routes, on possible system modes, and on

financing arrangements. The continuation of

FSLUPCA or the establishment of a special

administrative task force to conduct the

studies could provide opportunities for the

participation of interested groups.

Under Option 2, existing land management

agencies would be responsible for both the interim policy implementation and for the management of the designated additions. If a special commission or a task force is established,

it would operate in conjunction with existing

State and Federal institutions responsible for

land management and transportation system

decisions.

Congress could also include in this option

the institutional mechanisms under which

future legislative review would be conducted.

Two examples of such mechanisms are the

“legislative deadline” for action on the d-Z

land withdrawals in ANCSA and the review

mechanisms in the Trans-Alaska Pipeline Authorization Act and the Alaska Natural Gas

Transportation Act.’

The chief advantage of this option is that

deferring consideration of the access issues

associated with the d-2 land additions provides more time for resolving a number of the

7

See discussion of these Acts in chapter 5.
Ch. 7 Options for Congressional Consideration ● 227

uncertainties that have troubled the debates

over Alaska’s future. These uncertainties

arise from a lack of information about such

factors as final landownership patterns, mineral resources, and transportation needs and

routes, as well as from a lack of a clear commitment, either governmental or private, to

the economic development of Alaska’s hardrock mineral resources in the near term

(pre-1990). The potential active mining operations have not as yet been identified, and consequently, the associated transportation and

other needs also have not as yet been determined. Additional time could permit a more

specific legislative response. In the interim,

national resource lands would be protected,

and the management classifications of approximately half of the Federal land in

Alaska would be settled. Even though d-2 land

designations will answer the question concerning which of the land management systems will control certain areas of Federal

land in Alaska, there will still be uncertainties over Federal land management policies.

Management plans must be prepared for

the d-Z conservation system additions. These

plans might include proposed facilities that

could be coordinated with the transportation

needs of surrounding regions. Areas with

special environmental, wildlife habitat, archeological, and historic values could be identified so that adequate measures to protect

these areas could be incorporated into the access policy for each management unit.

It is probable that, under section 603 of the

BLM Organic Act, large areas of wilderness

on the remaining d-1 public lands will be inventoried and studied for inclusion in the National Wilderness Preservation System. Interim protective management of these lands

will limit their availability for access purposes.

There is very little detailed information

about the mineral resources potential of

many areas of Alaska on which to base transportation planning. It is now anticipated that

AMRAP surveys will not be completed until

after 1990. Private mineral exploration efforts, to date, have been substantial, but

uncertainty remains about which areas, if

any, will be developed. Alaska has established a Department of Transportation and is

working toward developing a State transportation plan and a set of priorities. Deferral

would allow time for both State and private

efforts to proceed. This would improve the effectiveness of the information on which the

final decision is based.

If extensive park and wilderness designations are made, the deferral of a final access

policy decision for Alaska lands could provide the mechanism under which the adequacy of existing access policies could be

evaluated and specific needs to cross these

lands could be addressed. In the meantime,

the lands would be protectively managed and

the existing access policies would be continued.

Option 2 also has several disadvantages.

One of these is caused by the continued uncertainty about whether and under what conditions Federal conservation systems lands

can be crossed to reach non-Federal lands, or

can be used for transportation systems. The

continued uncertainty about the availability

of Federal lands will delay the commitment of

resources for the planning and evaluation of

proposed transportation systems that would

require the use of Federal lands.

Many of the ongoing and projected studies

previously mentioned could proceed independently of any access decision deferral.

Consequently, the information base will continue to expand. But even after completion of

these studies the amount of additional information that might have an influence on the

access policy decision may not be substantially increased over what is presently known.

For example, AMRAP surveys are, at best,

only superficial inventories because their expenditures and focus are not sufficient to

ascertain the exact economic mineral potential of an area or its likelihood of development.

Uncertainty about the availability of future

transportation routes could deter the expan-
228. Analysis of Laws Governing Access Across Federal Lands

sion of some mineral exploration and development in those areas where no alternative

transport system has been proposed. Even if

during the period of deferral no moratorium

were to be placed on access uses, many such

uses would be limited because an agency

might be reluctant to approve any nonessential rights-of-way or easements for transportation systems, which might be contrary to an

eventual congressional policy.

Another means of delaying an access policy decision is to defer passage of Alaska

Lands legislation. (As discussed previously,

an access policy is inherent in the d-Z lands

designations.) However, in the judgment of

those familiar with the mining industry, continued uncertainty about the access policy

OPTION 3–LIMITED PROVISIONS

Congress could provide some relief from

the anticipated effects of the application t o

Alaska lands of the existing access and rightof-way policies of Federal land management

systems. This would ease the impact on those

non-Federal landholders who could be affected by the establishment of large areas of

protectively managed Federal lands. Two approaches are considered here: The first, Opand management classification of adjacent

Federal lands would discourage mine planning and add to the long leadtimes involved in

planning, developing, and constructing large

mines (as long as 10 to 20 years according to

industry sources).8

This view was confirmed during interviews conducted by Dr. F. J. Wobber, OTA project director, in

January 1977. Meetings were held with the staff of the

College of Mineral Industries, and Minerals Industry

Research Laboratory, University of Alaska, with Dr. C.

Hawley, Alaska Miners Association; and with others

familiar with mining. Additionally, interviews conducted in Arizona, Colorado, and Wyoming in May

1977, suggested that similar views were widely held by

mining groups outside of Alaska. A list of persons and

groups interviewed during the course of this assessment is included in appendix C.

FOR ALASKAN ACCESS NEEDS

tion 3A, provides for a special right-of-way

provision for Alaska natural resource lands

that would be applicable to all Federal conservation systems in Alaska; and the second,

Option 3B, provides for the exclusion of

transportation system routes from conservation systems classification by making minor

boundary adjustments and land exchanges.

OPTION 3A–ALASKA LANDS RIGHT= OF= WAY PROVISION

-- 2.

.=, - ,
Ch. 7 Options for Congressional Consideration ● 229

Option 3A provides for a special right-ofway authority that would modify the existing

access policies as they apply to Alaska, thus

giving a legal assurance of access to non-Federal landowners who might need to cross conservation system lands. A major purpose of

this option is to provide land management

agencies with the clear authority to grant

rights-of-way across Federal lands to reach

mineral resources on non-Federal lands. This

provision would partially address the shortcomings identified in the access authorities of

certain systems (such as parks, wilderness,

and some wild and scenic river components)

and with those systems (such as refuges and

national forests) that have an adequate, but

discretionary, right-of-way authority, which

requires the satisfaction of certain standards

of compatibility.

This special right-of-way authority would

assist those landowners requiring access

across Federal lands to non-Federal lands. It

would remedy the shortcomings of some existing right-of-way provisions, such as the

lack of any clear statutory permission to

grant rights-of-way over National Park System lands for access to non-Federal lands.

This option also addresses those instances

where Federal landownership patterns, topography, transportation, and other local

site-specific circumstances might combine to

isolate non-Federal lands. If these lands are

not “wholly surrounded” by a single Federal

system, or subject to existing rights, the access guarantees written into the Wilderness

Act may not apply because the situations are

not within the exact letter of the law. In such

circumstances, this special right-of-way provision could be invoked to permit the necessary access.

As part of the implementation of the Native

claims settlement and statehood land grants,

this special right-of-way provision would ensure that there would be adequate access to

non-Federal lands and to the transportation

routes needed for their development. This

provision would allow access through adjacent Federal lands to the owners of lands that

abut on several Federal land systems, but

which are not surrounded by any single one

of them. The Federal land manager would be

able to require specific terms and conditions

to protect Federal land values. The implementation of this provision should be carried out

in the spirit of the land grants. In the same

spirit, the provision would allow for the

waiver of right-of-way rental payments, for

reciprocal access agreements, and for the

use of program facilities for access, such as

Federal agency docks, roads, and airstrips.

The unprecedented Alaska Native and

State land grants were made by Congress

with the intent that the future development of

the resources of these lands would form the

basis for the economic independence of the

State and of the Native Corporations. To convey these lands without reasonable assurance of the continued ability to reach and develop the resource potential would conflict

with the promise of the original grants.

Both the State of Alaska and the Native

Corporations have reasonable and understandable demands that the management of

the remaining Federal lands in the State not

constrain development activities on non-Federal lands. At the same time, other groups

contend that activities on non-Federal lands

should not be allowed to threaten the present

and future value of Alaska’s wildlife, primitive wilderness, and other natural resources,

which would be preserved and protected

under proposed d-2 legislation. Congress is

faced with balancing these potentially conflicting demands.

Option 3A is an example of an approach

that is intended to balance the demands for

development and conservation. This could be

accomplished as follows:

●

●

Through a right-of-way provision, exclusively applicable to Alaska, that would

ensure adequate access to non-Federal

lands isolated by Federal holdings, topography, or transportation system patterns; and

By requiring that any access grants

would ensure that the natural resources,
230. Analysis of Laws Governing Access Across Federal Lands

esthetic, and other values of the Federal

lands would be protected.

In balancing the conflicting interests, Congress might choose to limit this access provision by imposing various other conditions,

such as:

Limiting the application of the provision

either to certain systems or to geographical areas, e.g., to refuges, to forests, to

nonwilderness areas, or to specific units

or regions;

Limiting the use of the special access

provision, e.g., only to State and/or Native Corporations, or only to owners of

surrounded and adjacent lands, or only

to owners of all isolated lands (lands

wholly surrounded by Federal lands or

constrained by other legal, topographical, or transportation-imposed conditions); or

Limiting the purposes of access, e.g., for

public access use, for the development of

certain resources, or for the development and requirements of a transportation system.

For the purposes of discussion, the following right-of-way provision was selected as an

example of this type of approach. Legislation

designating additions to conservation systems

in Alaska would include a provision that authorizes the Secretary of the Interior or the

Secretary of Agriculture to grant rights-ofway to owners of surrounded or otherwise

isolated non-Federal lands where access is

not otherwise reasonably available; or to the

holders of valid resource development rights

for such lands. The factors to be considered

in an agency’s determination of whether this

provision can be applied include, but are not

limited to: local landownership patterns; the

purposes of the management systems involved; geography; the direction of and the

distances from the closest adequate transportation network; topography, seasonal constraints, transportation, and population characteristics of the region; the purpose of the

right-of-way; and whether alternative means

of access are available under the circumstances.

If, for example, a Native Corporation, or its

assignee, seeks access across Federal lands,

and there are alternative routes over State or

Native lands, it would be proper under this

option to inquire whether any effort was

made to obtain the right to cross these other

lands. The environmental impacts of the decision would be evaluated, and the applicant

would bear the costs related both to construction and to environmental protection. The requirement for payment of a fair rental value

for the right-of-way might be waived if the

public interest is served.

This provision, as a part of the d-2 lands

legislation, would apply to conservation system lands (national parks, refuges, forests,

wilderness, and wild and scenic rivers systems). Rights-of-way across the remaining

public lands would be evaluated under the

BLM Organic Act, or dealt with in separate

legislation. Access would be available to

reach isolated lands or to reach the nearest

reasonable transportation network. In considering reasonable alternatives, rights-ofway in common could be required. The identification of potential access needs would be

included in the management plan for the units

in each of the land management systems. The

existing Federal land management agencies

would implement the provision. Applications

for a right-of-way would be filed with the

agency managing the unit to be crossed.

Where multiple units were involved, the applicant would have to obtain a right-of-way

for each. However, departmental regulations

could provide for coordinated review of applications involving more than one management agency.

Applications and decisions on the availability of conservation system lands for the

development of major transportation systems

would not be covered by this special right-ofway provision. Approval for the construction

of transportation systems across Federal

lands either for use by the general public or

for regional mineral development, would be
Ch. 7 Options for Congressional Consideration ● 231

made under existing State and Federal laws.

Routes through wilderness areas would require specific congressional exemption. This

option provides non-Federal landowners with

an assurance of necessary access through

Federal lands. It should be interpreted broadly to assure Alaska landholders of reasonable

access to their non-Federal lands for resource development.

OPTION 3B–THE EXCLUSION OF ACCESS ROUTES FROM

FEDERAL CONSERVATION SYSTEMS BY MEANS OF BOUNDARY

ADJUSTMENTS AND LAND EXCHANGES

ACCESS TIMING OF IMPLEMENTING

POLICY ACCESS LEGISLATIVE INSTITUTIONAL TRANSPORTATION

DECISION DECISION IMPLEMENTATION ARRANGEMENT SYSTEM DECISION

Local realinementof

conservation systems

boundaries to exclude

access routes. Land

exchanges to provide

access routes for nonFederal landowners,

with exact locations

included in d-2 designations, or by reference to maps filed

later.

Now Provisions of d-2 Iegis- Existing institutions Existing transportation

Iation; or new land decision mechanism—

exchange authority. local boundary shifts

would leave access

routes as public lands

(d-1 classification) with

fewer use restrictions

than parks, etc., and

also available for later

State selection. DOT

4(f) review of route not

required in most

cases; land exchange

would put route in

non-Federal ownership.

Another approach to dealing with access is

to exclude those lands that encompass natural, historic, or proposed access routes from

Federal conservation systems. There are two

primary means of accomplishing this. The

first approach is to adjust the boundaries of

particular conservation units so that the

route is left out of the restrictive classification and is continued in public land status.

This would make the route available for State

selection or for application for a transportation system right-of-way under existing laws.

The second approach is to allow non-Federal

landowners to acquire the necessary access

routes from the Federal Government by exchanging some of their lands for Federal

lands. This would place access routes under

non-Federal control. Since both Native Corpo- .

rations and the State have existing rights to

select Federal lands, a provision allowing the

exchange of selected lands for necessary access routes to serve non-Federal lands would

be one reasonable mechanism of conveyance.

The access route exclusion would be accomplished by specifically designating routes

in the d-2 lands legislation. The excluded

routes would be identified by specific legal

descriptions contained in the legislation or incorporated by reference to the final conservation system unit maps that would be compiled by the departments involved and filed

with Congress within a reasonable period of

time subsequent to the legislation. Under the

proposals currently before Congress, Federal

land management departments would file
maps and legal descriptions of final boundaries after the State and Native conveyances

are completed.

The implementation of the option to exclude access routes from conservation systems would be part of the general responsibilities of existing agencies under ANCSA and

the Federal land management laws. The

State, Natives, and other interested parties

would have an opportunity to comment on

proposed exclusions before the final boundaries were submitted to Congress. The final

maps and reports would be subject to congressional disapproval. Transportation system decisions involving the excluded routes

would be made under existing laws, and applications for rights-of-way over lands that

are not excluded would be evaluated under

existing laws. The provision would set forth

the express criteria and the specific findings

of fact that would be required to support

each boundary adjustment.

These findings could include that:

1.

2.

3.

The area to be excluded is a natural, historic, or proposed access route (should a

proposed transportation system not be

constructed within a certain number of

years, the land would revert to the original land conservation system);

No other route is reasonably available

(reasonableness would be determined by

considering such factors as those described in the option for the Alaska

Lands right-of-way, Option 3A);

The proposed exclusion and its proposed

uses do not threaten the protected values of the conservation unit involved;
Ch. 7 Options for Congressional/ Consideration ● 233

4. Adequate provisions exist to protect environmental values and conservation

units from the detrimental effects of

transportation system development; and

5. The national interest would be served by

the exclusion.

There is an inherent conflict in this approach. Some areas that contain natural access routes also possess considerable scenic,

esthetic, wildlife, historic, and archeologic

values that should be preserved. But this

same land may also be the most reasonable

location for a future surface transport route.

In such a case, because of the land’s unique

value, the route would not meet the proposed

test for administrative exclusion. For example, in Alaska, the proposed Kobuk Valley National Monument, Gates of the Arctic Park,

and Selawik Wildlife Refuge contain major

conservation values, yet they abut on or are

crossed by the Kobuk River and other natural

access routes. Excluding these access routes

could weaken the degree of protection of the

remaining lands; therefore any exclusion of a

transportation corridor in these areas would

require express congressional action.

Another complicating factor in the evaluation of particular routes is the uncertain

availability of the remaining public lands.

Under section 603 of the BLM Organic Act,

all roadless areas of 5,000 acres or more that

are identified in the inventory of public lands

are to be placed in a wilderness study classification, which would be managed to preserve those values, pending administrative

and legislative review of their inclusion in the

National Wilderness Preservation System.

Wilderness review and potential wilderness

designation may restrict the use of these

lands in the future. Thus, their availability as

access routes is not guaranteed. The exclusion of access routes to maintain their public

land status would not absolutely guarantee

their availability. But, a prior congressional

exclusion would be a factor to consider during any future wilderness review.

Boundary adjustments could accommodate

both Alaska’s transportation needs and the

establishment of new conservation system

units, by drawing the boundary lines for conservation systems, such as parks and refuges,

so that natural, historic, and proposed transportation corridors (key mountain passes and

river valleys) would be excluded. This exclusion leaves these routes classified as public

lands. Such classification reduces the review

and authorizations required for using these

lands for transportation systems, if a demand

should arise for a specific route. Proposed

transportation projects on Federal lands that

are classified as parks or refuges would require a DOT 4(f) review by the Secretary of

Transportation.

At present, the problem with a boundary

adjustment alternative is that the locations of

many future transportation routes are speculative and controversial. This is because the

needs and the timing of Alaska’s resource development are not yet clearly defined and

future transportation plans and priorities

have not been adopted. There is currently no

statewide consensus on the goals and priorities of expanded surface transportation.

Many Native groups would oppose the development of a surface transport network because of the possibility of increased pressures on subsistence resources and rural lifestyles. However, some of these same groups

may eventually need access to develop the resources on Native-owned lands.

Another method of excluding access routes

from conservation classification is to authorize land exchanges in order to provide access

corridors to surrounded or isolated landholders. If mineral-bearing lands were involved, a

simple exchange might not be adequate because some of the lands that might be exchanged were selected specifically for their

resource potential. If lands of similar value

were exchanged for an access corridor the

non-Federal landowner could increase the

land’s mineral development potential.

With the exception of large-scale land exchanges by the State, the exchange provision

would probably leave most problems associated with access across Federal lands for
234 ● Analysis of Laws Governing Access Across Federal Lands

regional transportation systems unresolved.

In regions, such as northwest Alaska, a regional surface transportation system with its

supporting feeder routes is likely to cross

multiple land management systems and be

tens, if not hundreds, of miles long. Exchanges of such magnitude, as a means of

securing a needed transportation corridor,

would probably be both ineffective and unreasonably complicated. This approach, however, does offer some relief for local access

problems, and might facilitate mineral exploration and development of non-Federal

lands in some areas.

Non-Federal landowners seeking to exchange selected lands would request such an

exchange from the Secretary of the Interior

(in the case of public lands, refuges, and

parks) and from the Secretary of Agriculture

(for national forests). Approvals would be required to be supported by findings such as the

following:

1. The non-Federal lands had been selected

and approved or conveyed under either

the Alaska Statehood Act or ANCSA;

2. The State or Native owner requests the

exchange of lands to provide access

routes to other non-Federal lands;

3*

4.

5.

6.

7.

8.

The lands to be exchanged are approximately equal in value; if not, a payment

of the difference in cash may be required or waived at the discretion of the

Secretary;

The area to be exchanged is a natural,

historic, or projected transportation

route to non-Federal lands;

No other route is reasonably available;

The proposed exchange poses no threat

to the protected values of any conservation unit;

Adequate measures exist to protect environmental values and conservation units

from the effects of access use; and

The national interest would be better

served by the exchange.

The national interest includes the implementation of policies for the development of

the lands granted to the State and to the Natives. These policies are reflected in the State

and Native land grants which are to serve as

a basis for the economic independence of the

State and of the Native Corporations.
Ch. 7 Options for Congressional Consideration ● 235

Under Option 4, congressional authorization is specifically provided for the use of conservation system lands where needed for the

development of statewide or regional surface

transportation systems. An access provision

for Alaskan transportation systems would

minimize some of the problems associated

with traversing lands managed by different

agencies under several land management systems and access policies. This would be done

by establishing a single standard for the approval of transportation system rights-of-way

for all conservation system lands.

Congress might choose to provide for the

use of Alaska National Interest Lands so that

transportation network systems can be developed to serve the economic needs of non-Federal interests in Alaska. Several approaches

are examined here: first, the enactment of a

right-of-way provision for an Alaskan transportation system that would be applicable to

all Alaska conservation system lands; second,

the reservation of specific transportation corridors through d-2 lands; and third, the establishment of a new institutional mechanism for

decisionmaking on proposals for crossing

conservation system lands.

OPTION 4A–AN ALASKAN

TRANSPORTATION SYSTEM

RIGHT-OF-WAY PROVISION

This option would enact a single transportation system right-of-way provision that

would be applicable to all Alaskan conservation system units including those classified as

wilderness. This provision would authorize

the Secretary of the Interior (for park and

refuge lands) and the Secretary of Agriculture (for forest system lands) to grant rightsof-way for transportation system purposes

over lands in the national conservation systems. Specific conditions would require a

finding that no other route is reasonably

available, and an assurance that appropriate

precautions will be taken to protect the environmental, wildlife, and historic values of the

lands. These conditions would have to be satisfied before any right-of-way could be approved. Payment of the fair market value for

the right-of-way as well as for the administrative costs of reviewing the application and

monitoring construction and use of the rightof-way would be required. Where appropriate, the requirements to pay rental and costs

could be waived in the public interest. Transportation system rights-of-way would be

available to State and local governments, to

Native Corporations, and to private applicants.

The Secretaries of the Interior and of Agriculture would be responsible for implementing this policy through the Federal land management agencies. In addition to the approval

of a right-of-way, each proposed transportation system project would be independently

evaluated by appropriate Federal, State, and

local agencies. Opportunities would continue

for public participation during the planning

and review processes as provided by existing

law. The Secretary of Transportation would

conduct an independent review of federally

aided transportation projects that cross

parks, refuges, or other protected lands (both

State and Federal). This right-of-way provision in no way diminishes the independent responsibilities of the Secretary of Transportation for the preservation of parks, refuges,

and historic sites, under section 4(f) of the

DOT Act.

As a further condition of this option, approval of a right-of-way could be made dependent on the completion of a comprehensive State or regional transportation plan.

This option makes Federal conservation system lands available as needed under a “floating” or “blanket” easement right-of-way provision. The Federal lands involved would remain within the designated land management

systems in contrast to approaches under Option 3B that would exclude access routes

from conservation systems classification.

By providing a congressional authorization

for transportation system rights-of-way, specific routes and modes can be identified and

approved as actual needs arise. This option
236 ● Analysis of Laws Governing Access Across Federal Lands

permits State, Native, and private interests to

plan for transportation and, where economic

conditions permit, for resource development.

Existing review procedures in the Departments of Agriculture, Interior, and Transportation, and other agencies for transportation

system needs, routes, modes, and rate regulations would be continued. Since federally

aided transportation projects are expected to

be a major component of any Alaskan resource development, Congress would continue oversight and project authorization

approval, as well as approval over funds, expenditures, and appropriations.

OPTION 4B–THE DESIGNATION

OF TRANSPORTATION CORRIDORS

THROUGH ALASKAN

CONSERVATION SYSTEM LANDS

The second approach would be to designate specific easements or corridors through

Federal conservation lands and to permit the

Secretaries of Agriculture and of the Interior

to authorize the development of transportation systems only within these corridors. Approval of rights-of-way over other conservation unit areas with no designated corridors

would be granted only under the standards in

existing laws. This approach differs from the

boundary adjustment of Option 3B in that a

corridor remains part of the system and

would include areas where the simple realinement of a boundary would be insufficient to exclude an access route. Instead of

making specific reservations in d-2 legislation, the final designation of corridors could

be left open for specific legal description in

the process of preparing management plans

and maps of the final boundaries. There

would be opportunities for participation and

review by State, local, Native, conservation,

mineral, and other interests. A reasonable

period of time would be allotted for the preparation and review of corridor descriptions,

maps, and management plans. They would be

incorporated by reference in the d-2 lands

legislation.

Implementation of this option would be by

existing land management agencies. Applications for use of the corridor would be made to

the Secretary of the department having land

management jurisdiction over the proposed

route. Decisions about requirements, modes,

and financing would be made under existing

transportation laws, but the allowable routes

through Federal lands would be predesignated. If any variation of the route from the

designated corridor were needed, the approval of the variation would be made under existing law. Use of the corridor would be available to State, Native, and private applicants

who demonstrate that they have a need for

constructing a transportation system and

that an alternative route that does not use

conservation system lands is unavailable.

Independent 4(f) review by the Secretary of

Transportation would be required for federally aided transportation system projects that

use corridors through State or Federal park

or refuge lands. The adoption of all practicable measures to minimize environmental

damage from the construction and operation

of the transportation system would be required as a condition of right-of-way approval.

Specific fixed transportation easements

(public need corridors) through d-2 lands that

encompass historic, natural, or projected access routes to non-Federal areas would limit

access uses to selected corridors. These corridor lands would be included in the conservation systems, but would be made subject to

a right-of-way or easement for existing or

future transportation uses. The specific corridors could be defined in the legislation or included by reference by filing maps and reports within a reasonable time period after

passage.

One problem with the designated or fixed

corridor approach is that designated corridors might not be adequate for future mineral

transportation needs because of the limited

information currently available about the

locations of future transport routes and the

timing of resource and transportation devel-
Ch. 7 Options for Congressional Consideration .237

opment. This could give rise to demands for

additional access routes over Federal lands.

Under Option 4B, existing decisionmaking

mechanisms for specific transportation projects would be utilized and existing authorities

for land management systems would not be

altered. These would remain in effect for

rights-of-way for feeder lines and for transportation systems outside of the fixed corridors. (For example, under the fixed-corridor provision, a railroad might be constructed in a predesignated corridor, but a

right-of-way for a feeder road from a mine of

an adjoining Native Corporation to an oreloading facility on that railroad would be

granted under existing access authority.)

OPTION 4C–A NEW INSTITUTIONAL

MECHANISM FOR THE REVIEW OF

RIGHTS-OF-WAY FOR ALASKAN

TRANSPORTATION SYSTEMS

Under this approach, Congress would establish a new decisionmaking mechanism and

a new authorization for rights-of-way for major Alaskan transportation systems. Major

transportation systems are those systems

that would have a substantial impact on environmental values and would be incompatible

with the purposes of any national conservation system units to be crossed. The responsibility for this review and recommendation

could be delegated to existing agencies, to the

State, or to a joint commission. The decisionmaking process would include consultation

and coordination between the primary land

management agency and the new review organization. Final approval for rights-of-way

would rest with the Secretary of the department involved, with the President, or with

Congress. This new mechanism would include

both a new right-of-way authorization and implementation provisions.

For the purposes of evaluation and comparison with other options, a joint FederalState commission was selected as illustrative

of the new decisionmaking mechanism. This

commission would have as part of its institutional mandate the responsibility for reviewing and recommending proposals for major

Alaskan transportation systems. The commission would review applications for rights-ofway across Alaskan conservation system

lands for major transportation systems. The

Secretary of the Interior (for national park

and refuge units) and the Secretary of Agriculture (for national forest units) would be

authorized to grant final approval of the

rights-of-way.

Approval of the rights-of-way would only

be issued after the application had been

favorably reviewed and recommended by the

new Federal-State commission. The commission would conduct reviews as part of its

overall institutional responsibilities, which

could also include land management and

transportation planning. As part of its planning responsibility, the commission would

identify those areas where major transportation systems would have to cross conservation units or other Federal land.

The composition of the commission would

include a broad representation of interests:

Federal and State governments, officials of

land management and transportation agencies, and private and Native groups. After a

public hearing, or other similar opportunity

for participation by interested parties, the

commission’s recommendations together with

studies and dissenting views would be forwarded to the appropriate Secretary, who

would then make a final decision.

Representatives of the affected Federal

land management agency would participate

during the commission review. In making a

final decision, the Secretary would have the

benefit of diverse views from competing interests and could give attention to the managing agency’s recommendations in balancing

any conflicting demands. The final decision to

approve transportation system rights-of-way

would remain with the Secretary of the managing department or with the State and private owners for jointly managed non-Federal

lands.
238 “ Analysis of Laws Governing Access Across Federal Lands

The applications for major transportation

system rights-of-way would be filed with the

appropriate Secretaries and forwarded for

review to the joint commission. The management of conservation system lands and the

final approval of the right-of-way would rest

with the Secretary who has jurisdiction over

the unit crossed. The requirements for the

preparation of environmental impact statements and other reports mandated by existing laws would continue. However, by interagency agreement, the joint commission could

participate in the studies.

The final approval of specific projects, including decisions about routes and modes,

would still be made by existing Federal and

State transportation agencies. The modification of the transportation. system decisionmaking process would not alter existing requirements for an independent 4(f) review

before federally aided transportation projects using State or Federal park or refuge

lands may be approved by the Secretary of

Transportation.

There is a potential problem with delegating part of the responsibility for the review of transportation system decisions involving Federal lands in Alaska to a commission. This split responsibility might undermine the authority of the Federal land manager to control the adverse environmental

and other effects that could result from using

Federal conservation system lands for access

and thus defeat the legislative purpose of protecting these lands,

Like Options 4B and 4A, Option 4C sets

forth a policy choice for authorizing the approval of transportation system rights-of-way

across conservation units. The availability of

specific routes would, however, depend on

their identification during the planning process. The approval of actual requests for

transportation rights-of-way for specific

transportation projects could then follow.

This option, however, provides a means of

assuring that the future transportation needs

of the State and of Native Corporations are

accommodated in the management of the land

added to conservation systems.

OPTION 5–RESTRICTION ON ACCESS ACROSS

ALASKAN CONSERVATION SYSTEM LANDS

.- . ‘ , . “- +

In contrast to the previous four options,

which deal with policies that would facilitate

access through conservation units, Option 5

limits the nonessential access use of Alaskan

conservation lands. This option adds a further measure of protection and preservation
Ch. 7 Options for Congressional Consideration “ 239

to the scenic, wildlife, recreational, and historic value of these lands. This option does

not impose a complete ban on crossing Federal lands to reach non-Federal holdings. Existing access rights and the needs of non-Federal landowners to reach surrounded or

other isolated lands that have no other available means of access would be accommodated. However, those landowners who do

not fall under existing access rights, and who

would be adversely affected by not being able

to reach their property, would not be able to

obtain rights-of-way to use Federal conservation systems without express congressional

authorization. The authority, under present

law, of Federal agencies to grant rights-ofway and transportation system easements

across conservation system lands would be

limited. This approach is consistent with a

policy decision that Alaska lands have such

high value as primitive wilderness, for their

scenic beauty, for their wildlife, and for their

future enjoyment, that they should be protected against any use that might be detrimental to these values.

This option would deny indefinitely most

access use of Federal lands in Alaska without

specific congressional action, and thus would

limit the discretionary access authority of existing agencies (i.e., the power to grant rightsof-way and transportation system easements). It would not, however, deny reasonable assurances of access to owners of surrounded lands or to holders of existing access

rights (such as those recognized in the Wilderness Act and in the current policies of

various land management systems). Other access uses would be severely restricted in

order to preserve Federal lands. The restriction could apply to all or part of the d-2 conservation unit designations. Federal land

management agencies and the Department of

Transportation would be responsible for the

implementation of the policy, and would be

bound by the restrictions.

Transportation decisions would be made

under existing institutions, but the additional

requirement of congressional authorization

would be added. Congressional approval

would be required before any nonexempt access use would be granted for these lands,

such as a nonexempt right-of-way or a transportation system easement. Some existing private rights, such as traditional uses and snow

machine use where currently established

would be permitted, provided there was no

undue harm to protected conservation unit

land. Rights-of-way that have been established by the public use of roads and trails

over public land (under Title 43 of the U. S. C.,

section 932, prior to its repeal in 1976 by the

passage of the BLM Organic Act) would be

recognized; and their continued use, even

over conservation units, would be permitted.

In addition to the restriction on the access

use of Federal lands to reach non-Federal

areas, rights of access to mining claims

within Federal lands would also be regulated.

In some instances, in order to preserve Federal lands, either a land exchange or compensation would be offered to an owner who relinquished such rights where continued or

proposed access use posed a threat to protected values of the surrounding Federal area

and adequate environmental safeguards

could not reasonably be adopted.

By limiting the existing right-of-way authority of Federal land management agencies,

Option 5 creates a special category of protected conservation system lands in Alaska

with access restrictions similar in purpose to

those defined in the Wilderness Act. Land

management program-related activities and

uses would not be restricted. Where existing

rights-of-way have been granted, Congress

might direct their cancellation on the expiration of the term of the right-of-way, unless

unreasonable hardship would result. By limiting the authority of the managing agencies

to grant rights-of-way and transportation system easements under existing laws, Option 5

imposes a greater restriction than Option 1

since it would modify present access authority.

As an additional protection or restriction

on the use of Federal lands, Congress could

prohibit the expenditure of funds without
240 ● Analysis of Laws Governing Access Across Federal Lands

prior notice to and approval by Congress for

projects that would require the use of or

adversely affect conservation lands. This requirement would be similar to Wild and Scenic Rivers System protections. Foreclosing

most access routes across Federal lands in

Alaska would impose greater restrictions on

surface mobility and development than at

present, and would discourage planning for

federally aided transportation projects. Consequently, it would further deter the mineral

exploration and development that is dependent on the availability of adequate bulk transportation to markets.

Non-Federal landowners who did not fall

within the narrow exemption would not be

permitted to use Federal conservation lands

for access purposes. This policy could, in

some circumstances, impose hardship, such

as requiring potential developers to go

around large protected Federal areas at substantially greater expense. The unavailability

of some Federal conservation system lands

might increase the demands for the use of

State and Native lands for access routes and

transportation system development; and

might also limit future mineral exploration

and development activities to those regions

that are already served by adequate transport or that do not require crossing Federal

conservation system lands.

Congress could be subjected to pressure

for ad hoc or crisis approvals of transportation routes and systems. This could lead to

the construction of environmentally damaging or inefficient routes, while more’ desirable

alternative routes are either foreclosed or not

developed because of land use restrictions.
8

Concluding Remarks
Concluding Remarks

The Office of Technology Assessment

(OTA) was asked to assess the effects of

Federal laws, policies, and practices on access through Federal lands to non-Federal

mineral-bearing lands. The decision of

whether or not to allow Federal lands to be

used for access requires the balancing of

competing interests and values. In Alaska

these values include wilderness preservation,

resource development, and the subsistence

culture of the Native peoples.

This report summarizes and analyzes the

laws governing Federal land management

systems, the laws specifically applicable to

Alaskan lands, and the major environmental

and land-planning laws that affect access

across Federal land management systems. It

also presents a variety of options or policy

alternatives for congressional consideration.

These options represent a range of alternatives for dealing with access policy in

Alaska. These options describe alternative

approaches to the access issues associated

with the proposed additions to national conservation systems called for by section

17(d)(2) of the Alaska Native Claims Settlement Act.

It would be possible to develop a number of

variations and combinations of the policy options described in this document. Other proposals for the management of Alaska lands

and a variety of access policies have been

presented in various congressional bills, in

the recommendations of Federal executive

departments and agencies, in the documents

of the Federal-State Land Use Planning Commission for Alaska, and in other sources.

The laws governing access through protected lands constitute only one of the components of an access decision. Political, social,

economic, and environmental considerations

must also be taken into account. An access

policy decision will clarify the terms and conditions under which access can be approved

for applicants and land managers alike.

The access options developed for this report apply to Alaska where access across

Federal lands is an issue of widespread concern. The absence of access options for Federal lands in other States should not be interpreted as meaning that no problems exist outside Alaska. In assessing the effects of Federal laws on access to minerals on non-Federal

lands, OTA conducted interviews in Alaska,

Arizona, Colorado, Wyoming, North Carolina,

and other States.1 Based on OTA interviews

IAppendix C contains a list of persons and groups interviewed and a list of consultant and contractor reports.

243
244 ● Analysis of Laws Governing Access Across Federal Lands

and contractor studies, it appears that there

are few non-Federal minerals access problems related to Federal landownership and

regional transportation patterns in States

other than Alaska. These interviews included

representatives of the mining industry, of

local governments, of environmental and conservation groups, and of other interests. The

‘Many of those interviewed did, however, express

concern that Federal land management agency practices sometimes caused access-related problems,

(“Practices” means the actions of Federal officials

when implementing Federal laws, policies, and regulations.) Examples of practice-related problems are

delays in processing and reviewing of permit applications and complying with overlapping or duplicative

licensing and reporting requirements of Federal and

State agencies. Other interviewees asserted that the

interviews disclosed no instances where mineral development on non-Federal land was

prevented by the denial of access across

Federal lands. Most non-Federal mineral

areas outside of Alaska are adequately

served by existing transportation networks

and rights-of-way.2

management and land use policies for Federal lands

could affect mineral activities on non-Federal lands, A

study of the environmental and economic conflicts between Federal lands and adjacent non-Federal lands is

being prepared by the Conservation Foundation with

grants from the National Science Foundation and several Federal land management agencies. This report,

Neighbors: Conflicts and Opportunities, will be available in early 1979.
Appendixes
—

\

Appendix A

Glossary

The terms below are defined as they are

used in this report and supporting OTA working papers. Some may have additional connotations deriving from their usage in mining

and land management. In this report, however, their meaning is limited to these definitions.

Access: Generally means a right to cross

lands for a given use.

Deposits—

Mineral: A surface or underground area

where sufficient quantities of minerals

occur to warrant exploration. A mineral

deposit may or may not be economically

or technically feasible to develop, depending on its size, the concentration of

its minerals, and the ease with which

one or more useful components can be

extracted.

Placer: A deposit of alluvial material,

which has the minerals scattered

through it. These deposits are found

along and in riverbanks, streambanks,

and in beach sands. Ore reserves are

calculated on the basis of physical,

economic, and technical criteria.

Porphyry: A large body of rock in or associated with a porphyry, which is an igneous rock with the ore minerals disseminated throughout. For ore reserve calculations, the boundaries are defined on

the basis of economic criteria.

Ultramafic: A particular type of igneous

rock that is low in silica but high in magnesium and iron, and occasionally also

contains concentrations of nickel, chromium, and asbestos.

Vein: Ordinarily a small deposit consisting

of massive fissure fillings of ore minerals. Ore reserves are calculated on the

basis of physical boundaries and economic-technical criteria.

Easement: One person’s right to make use of

another’s land. It is a right to use rather

than a right to possess. A right-of-way is

one kind of easement.

Federal Domain: Federally owned lands or interests in lands.

Federal Land Management Laws: Laws

passed by Congress that directly relate to

the management of Federal lands, including access. (See also: policies, regulations,

statutes.)

Federal Land Management Systems: As used

in this report, Federal land management

systems refer to the major management

categories for Federal lands. These include: (a) Public Lands, which are managed

247
248 . Analysis of Laws Governing Access Across Federal Lands

by the Bureau of Land Management of the

Department of the Interior; (b) National

Park System, which is managed by the National Park Service of the Department of

the Interior; (c) National Wildlife Refuge

System, which is managed by the Fish and

Wildlife Service of the Department of the

Interior; (d) National Forest System, which

is managed by the Forest Service of the Department of Agriculture; (e) National Wilderness Preservation System, components

of which are managed by the land management agency designated by Congress in

specific legislation (e.g., the Bureau of

Land Management, the Park Service, the

Forest Service, and the Fish and Wildlife

Service); and (f) National Wild and Scenic

Rivers System, components of which are

managed by a congressionally designated

land management agency.

Lands—

Acquired: Means lands which the United

States obtains by deed through purchase

or gift, or through condemnation proceedings. They are distinguished from

public domain lands in that acquired

lands may or may not have been originally owned by the Government. If originally owned by the Government, such lands

have been disposed of (patented) under

the public land laws and thereafter reacquired by the United States.

d-1 lands: Under section 17(d)(l) of the

Alaska Native Claims Settlement Act,

the Secretary of the Interior is authorized to withdraw public lands for classification in order to ensure that the public interest in these lands is adequately

protected. Approximately 60 million

acres not covered by other classifications or withdrawals have been withdrawn under section 17(d)(l) as public

interest lands for further study and classification. No time limit was placed on

the d-1 lands withdrawals. In addition to

the lands under this section, considerable other acreage including d-2 land

withdrawals as well as Native village

and regional deficiency withdrawals

(lands withdrawn to allow Native selections) have also been covered by section

17(d)(l) withdrawals. The State of Alaska may not select lands under the Alaska

Statehood Act entitlements in most

areas covered by the d-1 lands withdrawals.

d-2 lands: Under section 17(d)(2) of the

Alaska Native Claims Settlement Act,

the Secretary of the Interior was authorized to withdraw up to 80 million acres

of public lands for study and recommendation to Congress for possible additions

to National Park, Forest, Wildlife Refuge, and Wild and Scenic Rivers Systems. These lands are called d-2 or national interest lands. The withdrawals

will retain this classification until December 18, 1978, the congressional

deadline for action on the proposals. The

term d-2 lands is also loosely used to

refer to the lands that will be set aside

under the final d-2 proposals enacted by

the Congress as parks, forests, refuges,

and wild and scenic rivers whether or

not the specific parcels were included in

the original d-2 lands withdrawals. The

80-million-acre limitation in section 17(d)

(2) does not impose any limitation on the

total number of acres that eventually

may be included in d-2 lands legislation,

or on the number of acres the Secretary

may withdraw under other authority for

congressional consideration or classification. The d-2 lands are closed to entry

under the public land laws and the mining and mineral leasing laws; they are

also closed to State and most Native

selections under the land grants of the

Alaska Statehood Act and the Alaska

Native Claims Settlement Act.

Federal: Any land or interest in land owned

or managed by the Federal Government.

Non-Federal: Includes private, State, and

local government lands but excludes Indian lands, i.e. tribal reservations and

other lands held in trust by the Federal

Government for a tribe or Indian. In

Alaska, it refers specifically to Native

and State lands. (For information on In-
Appendix A—Glossary ● 249

dian lands, see Federal Trade Commission, Bureau of Competition, Staff Report on Mineral Leasing on Indian

Lands, 1975; U.S. General Accounting

Office, Management of Indian Natural

Resources; Senate Comm. on Interior

and Insular Affairs, 94th Cong., 2d sess.

(Comm. Print 1976); American Indian

Policy Review Commission, Task Force

Seven Report on Reservation and the Resource Development and Protection,

1976.]

Other: Means: (1) “Withdrawn lands”--

lands that have been withdrawn and

dedicated to public purposes; (2) “Reserved lands”—lands that have been

withdrawn from disposal and dedicated

to a specific public purpose; [3) “Segregated lands”--lands included in a withdrawal, or in an application or entry, or

in a proper classification that segregates them from the operation of the

public land laws. [38 F.R. 35082, Dec.

21, 1973]

Public: Only those federally owned lands or

interests in lands that are managed by

the Bureau of Land Management of the

Department of the Interior. Public lands

are divided into public domain lands,

which have never left Federal ownership; and acquired lands, which are

lands in Federal ownership, are not in

public domain, and have been obtained

by the Government through purchase,

condemnation, gift, or exchange.

“Lands” include all interest in land,

such as surface ownership, mineral

rights, timber rights, and easements.

Public Domain: Means original public domain lands that have never left Federal

ownership; also, lands in Federal ownership that were obtained by the Government in exchange for public lands or for

timber on such lands; also original public domain lands that have reverted to

Federal ownership through operation of

the public land laws.

As defined in the Federal Land Policy

and Management Act of 1976, the term

“public lands” means any land and interest in land owned by the United

States within the several States and administered by the Secretary of the Interior through the Bureau of Land Management, without regard to how the

United States acquired ownership, except—(l) lands located on the Outer

Continental Shelf; and (2) lands held for

the benefit of Indians, Aleuts, and Eskimos. Public Law 94-579, 90 Stat. 2743,

43 U.S.C. 1702(e) (1977 supp.).

Long Term: A projection into the post-1990

period. In Alaska, it is based on the year

immediately before Native Corporations

become public corporations.

Lower-48: A colloquial expression used by

Alaskans to refer to the contiguous 4 8

States.

Metals—

Additive: These include antimony, bismuth,

mercury, tungsten, tin, the rare earths,

and molybdenum. Their primary use is

as special alloy components.

Base: These include copper, lead, zinc, and

aluminum.

Ferrous: These include the three most important metallic elements, chromium,

iron, and nickel, used in the manufacture of various types of steel.

Precious: These are gold, silver, and platinum. They have specialized industrial

applications for communications electronics, for photography, and for catalysis in automobile pollution control devices, respectively.

Mine Development: The process of acquiring

detailed metallurgical, engineering, geological, technical, and economic data necessary to justify mine planning, construction, and initial startup. For purposes of

this report mine development begins with

closely spaced drilling and bulk sampling

that requires surface logistical support for

evaluation of large deposits.

Mine Size:

Underground Mine

(short tons of ore mined/day)

Small. . . . . . . . . . . . . . . . . . . . . less than 1,000

Medium . . . . . . . . . . .........1,000 to 5,000

Large . . . . . . . . . . . . . . . . . . . more than 5,000
. .

250 . Analysis of Laws Governing Access Across Federal Lands

Open Pit Mine

(short tons of ore mined/day)

Small. . . . . . . . . . . . . . . . . . . . . less than 5,000

Medium . . . . . . . ...........5,000 to 30,000

Large . . . . . . . . . . . . . . . . . . more than 30,000

Placer Mine

(yd3 mined/year)

Small. . . . . . . . . . . . . . . . . . . less than 600,000

Medium. . . . . .........600,000 to 3,600,000

Large. . . . . . . . . . . . . . . . more than 3,600,000

Minerals—

Availability: In the broad sense in which

this term is commonly used by mining

personnel, availability is construed as

the right of the public and the mining industry to prospect for and develop

mineral resources. This includes all

steps in the process of mineral resources

development.

Concentrate: The product that results from

milling the ore and segregating the valuable minerals. Mineral concentrates are

smelted to extract the metals from the

ore minerals.

Energy or Fuel: Oil and other energy minerals including geothermal, natural gas,

coal, and uranium. Uranium is an energy

mineral but is treated as a hardrock

mineral because of the similarity in its

occurrence characteristics.

Exploration: Activities leading to ore deposit identification including: regional

mapping, geochemical sampling, geophysical surveying, detailed mapping,

and widespaced drilling. Exploration, as

defined in this study, can be adequately

supported by air so that surface transportation access is not necessary until

mine development appears to be warranted.

Hardrock: Refers generally to the locatable

minerals. These include the metals and

certain industrial nonmetallic minerals

including uranium.

Leasable: The leasable minerals are essentially the fuel minerals (e.g., oil, gas, and

coal, but excluding uranium), phosphate,

potash, sodium salts, sulfur, which are

disposed of through the Federal leasing

laws.

Locatable: The locatable minerals, in contrast to the leasable and salable commodities, have been characterized as

“hard to find” metallic minerals. Deposits of these minerals are often geologically obscured. They are claimed under

provisions of the Mining Act of 1872, as

amended in 1955.

Nonfuel: Those minerals not included in the

fuels mineral group.

Occurrence: The presence of ore minerals

in a rock outcropping. In some instances

ore minerals may be present in sufficient

quantities to be classified as a deposit.

Mineral occurrences are often surface

indications of underlying mineral deposits.

Production: The output of a working mine,

i.e., the value or amount of its concentrate and bullion production.

Resources: Naturally occurring substances

that have properties which can be put to

man’s use. Mineral resources include

nearly all of the elements and many compounds; most are solids, but some are

liquids, and a few are gases; and most

are inorganic, but some of the most important (oil, coal, and natural gas) were

derived from organic sources.

Salable: Certain common variety materials

such as sand, gravel, and stone that are

handled under the commodities disposal

system.

Native: A person who is by blood relation onefourth degree or more Alaska Indian,

Aleut, or Eskimo, or any combination of the

three. This includes those whose adoptive

parents may not be Natives, or a person

who is recognized as a Native by the Native

village of which he claims to be a member

or whose father or mother is or has been a

member. Such a person is qualified for enrollment in a Native Regional Corporation

under the Alaska Native Claims Settlement

Act.

Near Term: Projection through 1990; in Alaska, it is based on the year immediately before Native Corporations become public

corporations.
Appendix A—Glossary ● 251

Non-Federal Mineral or Mining Interests:

Public and private mining interests including private mining businesses, State groups

involved in mineral leasing or the promotion of mineral development, and countyowned quarry operations.

Ore Grade: The quantity of a specific metal

or nonmetal mineral commodity in the ore,

by weight. Grade is usually expressed as

percent, e.g., 3 percent copper ore. The

grade of precious metal deposits is normally stated as troy ounces of metal per ton of

ore.

Policies: The interpretation by different Government agencies of regulations implementing the land management and disposal

laws.

Practices: The actions of Federal officials

when implementing and enforcing Federal

laws, policies, and regulations.

Regulation —An administrative rule issued by

a Federal agency or department implementing or interpreting a statute or policy.

Regulations are published in the Federal

Register (F. R.) and compiled yearly in the

Code of Federal Regulations (CFR). There

are two types of regulation, interpretive

and substantive.

Interpretive; Regulations that are issued to

advise the public of an agency’s interpretation or construction of the statutes

and rules it administers. Interpretive

regulations are not binding on those affected by them and may be presented to

a court for judicial determination.

Substantive: Regulations other than those

describing organizational, procedural,

or practice requirements that are issued

by an agency pursuant to statutory authority, and that implement a statute.

Such regulations have the force and effect of law.

Right-of-way: A right of to cross the land of

another. As used in this report, a right-ofway means the right to cross Federal lands

by obtaining a “right-of-way” permit. The

authority to grant this permit maybe found

in a specific right-of-way statute or in the

general discretionary management authority. Title V of the Federal Land Policy and

Management Act of 1976 provides: the

term “right-of-way” as used in the Act includes “an easement, lease, permit, or

license to occupy, use, or traverse public

lands” granted for certain purposes. (43

U.S.C. 1702(f).)

Small mining business: Small mining business

or the small miner is here defined as an individual, partnership, or corporation, that

is engaged in prospecting or mining as a

full- or part-time business. If incorporated,

it is closely held, not advertised in a major

stock exchange, and is capitalized for

under $1 million. In Alaska, the small

miner employs less than 20 persons; and

annually mines less than 600,000 yards of

alluvial material (clay, sand, silt, gravel, or

other material deposited by running water)

or less than 50,000 tons of metallic hardrock ore, or less than 200,000 tons of coal,

industrial materials, or sedimentary materials (other than placer alluvium), which

require further processing.

Statute: A bill passed by Congress and signed

by the President. Statutes of the United

States are published in the Statutes-atLarge (Stat.) and are codified in the United

States Code (U. S.C.).

Surface or Transportation Access: This term

refers specifically to the right to use lands

for the purpose of developing a transportation system. This includes roads and railroads.

Barrier: An obstacle that prevents surface

access, e.g. the loss of access to the only

mountain pass through which a region

can be reached.

Restriction: A deterrent to surface access,

e.g., standards set by multiple jurisdictions that require substantial legal

resources, time, and costs; or a detour

around a topographic obstruction such

as a mountain range.

Restraint: A limitation that makes it difficult to gain surface access, e.g., a Federal permit requirement involving an indi-
252 “ Analysis of Laws Governing Access Across Federal Lands

vidual, local, or Federal agency that

causes delays.

Market Access: An aspect of transportation access that specifically concerns

the movement of minerals and their

products from the mine or processing

site to market.

Western United States/Eastern United

States: The Western United States includes

Montana, Idaho, Wyoming, Colorado, New

Mexico, Arizona, Utah, Nevada, Washington, Oregon, California; the Eastern United

States includes the other 37 contiguous

States in the United States.
Appendix B

Acronyms

AMRAP

ANCSA

AQCR

BACT

BAT

BLM

BOD

BOM

BPT

CEQ

CZMA

DOI

DOT

EIS

EPA

ESECA

FCC

FEA

FERC

—Alaska Minerals Resources

Assessment Program

—Alaska Native Claims

Settlement Act

—Air Quality Control Region

—best available control

technology

—best available technology

—Bureau of Land Management

—basic oxygen demand

—Bureau of Mines

—best practicable technology

—Council on Environmental

Quality

—Coastal Zone Management

Act

—Department of the Interior

—Department of Transportation

—environmental impact

statement

—Environmental Protection

Agency

—Energy Supply and

Environmental Coordination

Act of 1974

—Federal Communications

Commission

—Federal Energy Agency

—Federal Energy Regulatory

Commission

FHWA

FLPMA

FPC

FS

FSLUPCA

FWPCA

FWS

NAAQS

NEPA

NOAA

NPDES

OCS

PSD

SIP

TAP

TAPS

USFS

USGS

—Federal Highway

Administration

—Federal Land Policy and

Management Act

—Federal Power Commission

—Forest Service

—Federal-State Land Use

Planning Commission for

Alaska

—Federal Water Pollution

Control Act

—Fish and Wildlife Service

—National Ambient Air Quality

Standards

—National Environmental Policy

Act

—National Oceanic and

Atmospheric Administration

—National Pollution Discharge

Elimination System

—Outer Continental Shelf

—Prevention of Significant

Deterioration

—State Implementation Plan

—Trans-Alaska Pipeline

—Trans-Alaska Pipeline System

—United States Forest Service

—United States Geological

Survey

253
Appendix C

Public Participation and

List of Supporting Documents

The effects of Federal land management

laws, policies, and practices on the use of

Federal lands for development of minerals on

non-Federal lands has not been studied widely. Special attention was therefore given to

developing the information necessary to support problem analysis and evaluation.

Non-Federal lands constitute approximately two-thirds of the total national land base

potentially available for domestic minerals

development. Information gathering in the

contiguous United States focused on States

with large Federal landholdings, such as

Nevada where 87 percent of the land is federally owned. (Figure C-l.) Primary emphasis

was given to Western States; a sample of

Eastern States was included for completeness.

Certain States were selected for intensive

analysis. In the West, Nevada and Arizona

were analyzed. Information was also gathered in Colorado and Wyoming. Within the

Eastern States, North Carolina was analyzed

in depth. Additional information was obtained in New Jersey, Delaware, South

Carolina, and Virginia. Alaska was analyzed

intensively because access across Federal to

non-Federal land was a prominent issue during congressional consideration of Alaska National Interest Lands legislation.

In order to complete this assessment, OTA

had to conduct basic information gathering

because of the dearth of published material

on problems of access to non-Federal minerals. Several approaches were used to obtain

the necessary information: field interviews,

study area analyses, and workshops. Analysis of access issues could not have been

accomplished without such information gathering and the cooperation of nearly 600 individuals and groups that were concerned or

affected by Federal land management decisions. Among the groups interviewed were

non-Federal landowners; Alaska Native Corporations; mining interests, including mining

corporations, small mining businesses and

small miners; conservation and environmental organizations; the academic community; and representatives of Federal, State,

and local governments. Professional and

technical organizations such as the Association of State Geologists also provided information. Contacts were maintained with

these groups throughout the study.

OTA information gathering was augmented by contractor and consultant reports

which assisted in the problem evaluation and

254
Appendix C—Public Participation and list of Supporting Documents ● 255

I I

I

I 1’

I 7 .0 I

/

#
256 ● Analysis of Laws Governing Access Across Federal Lands

analysis phase of the assessment. OTA staff

independently verified the information obtained by contractors and consultants. The

following is a list of working papers prepared

for this assessment.

Minerals Accessibility to Non-Federal Lands in

Arizona, W. Dresher, T. Eyde, and J. Poole, Univ.

of Arizona.

Impact of Federal Land Management and Disposal

Laws on Transportation Related Mineral Accessibility to Non-Federal Lands in Nevada, D. Bryan.

Assessment of Mineral Accessibility to Non-Federal

Lands in North Carolina, Geological Resources,

Inc.

Mineral Accessibility on Non-Federal Lands—Problem Evaluation, Harbridge House, Inc.

The Potential Relationship Between U.S. Balance of

Payments and Alaska Minerals Development, J.

Whitney.

Effects on the Federal Regulatory Framework on

Minerals Exploration and Mine Development on

Domestic Public and Private Lands, J. Whitney.

Mineral Exploration and Development Problems

Arising From Public-Private Severed Estate Problems in the United States: An Industry Perspective,

J. Whitney.

National Access Restrictions for Key Mineral Commodities—Analysis of Case Studies, J. Whitney.

Coastal Zone Management and Access to Onshore

Minerals on Non-Federal Lands—A Threshold

Assessment, B. Theberge and Scott Whitney.

Effects of the Federal Coastal Zone Management Act

of 1972 on Access to Minerals on Non-Federal

Lands, Earth Satellite Corp.

Transportation Access Across Federal to Non-Federal Land for Hardrock Mineral Development—Policy Alternatives for Congressional Consideration,

Harbridge House, Inc.

Evaluation of Minerals Transportation Access Problems for Non-Federal Minerals Exploration and

Development in Alaska, J. Whitney.

Survey of Minerals Transportation Availability for

Selected Hardrock and Energy Minerals, Pan

Technology, Inc.

The Federal Regulatory Framework: Effects on Minerals Exploration and Mine Development on Domestic Public and Private Lands, J. Whitney.

These working papers are on file at OTA.

Persons wishing to review these working

papers should contact the Materials Group,

Office of Technology Assessment, Washington, D.C. 20510.

Other working papers prepared for the

assessment were published by OTA as: Analysis of Laws Governing Access Across Federal Lands, Volume II, Working Papers

(OTA-M-76 ). This volume includes the following papers:

Assessment of Transportation Access Requirements

for Minerals Exploration and Mine Development

and Operation in Alaska, J. Whitney and D. Bryan,

Assessment of Environmental Penalties Introduced

by Transportation Access to Alaska Non-Federal

Mineral Resources, B. Shaine.

The Economic Importance of the Small Miner and

Small Mining Businesses in Alaska, C. Hawley and

J. Whitney.

OTA relied heavily on field interviews in

the contiguous United States during the early

phases of the assessment. Problems associated with access use of Federal lands for

exploration and development of minerals on

non-Federal lands were identified in consultation with representatives of various National, State, and local interest groups. OTA

gratefully acknowledges the assistance of the

following individuals and groups that made

technical contributions to the assessment:

Arizona

A&S Sand and Gravel Company

Allied Concrete Products, Inc.

AMAX Inc.

American Agriculture International, Inc.

American Materials, Inc.

Anamax Mining Company

Arizona Conservation Council

Arizona Mining Association

Arizona Rock and Sand Corporation

Arizona Rock Products Association

Arizonans for a Quality Environment

Bureau of Land Management, Advisory Board

Bureau of Land Management, Phoenix Grazing

District

Bureau of Land Management, Safford Grazing

District

Bureau of Mines, U.S.

Cinder/pumice operators*

Cities Service Minerals Corporation

Citizens of Flagstaff*

Coconino County Planning Dept.

Columbia Sand and Gravel Company

CONOCO

Construction Materials Inc.

Continental Copper Company

*Notes a desire not to be identified by name or that records of interview are unavailable.
.

Appendix C—Public Participation and list of Supporting Documents ● 257

Flagstaff Chamber of Commerce

Forest Service, U.S.

Gee-Services of Arizona

Hecla Mining Company

Inspiration Consolidated

Kerr-McGee Corporation

Mesa Sand and Rock Company

Mineral Property Owners*

National Park Service, U.S.

Nature Conservancy

Navajo Community College

Newmont Mining

Occidental Minerals Corporation

Papago Indian Tribe, Director of Mines

Peabody Coal Company

Perry Exploration Company

Phoenix Chamber of Commerce

Phoenix Rock and Sand Corporation

Pima County Assessors’ Office

Ranchers*

Santa Fe Pacific Land Company

Small Mining Interests*

Southern Arizona Environmental Council

Southwest Economic Information Center

Southwest Exploration Associates

St. Joe American Corporation

State of Arizona

Bureau of Geology and Mineral Technology

Governor’s Commission on Arizona Environment

Land Department

Mineral Resources Department

State Legislature, House and Senate Natural

Resources Committees

University of Arizona, Council for Environmental

Studies

University of Arizona, Office of Arid Lands

Stop Mining Around Residential Tucson

The Superior Companies

The Tanner Companies

Tucson Sand and Soil Company

Twitty, Seville and Mills, Attorneys-at-Law

Union Rock and Sand Company

Valley Concrete and Materials

Valley National Bank

Wallaby Enterprises

Western Prospector and Miner Newspaper

White Mountain Apache Indian Tribe, Tribal

Chairman

California

National Audubon Society

National Wilderness Federation

State of California

Division of Mines and Geology

—

Colorado

Bureau of Land Management, U.S.

Chambers of Commerce

Citizens of Grand Junction*

Colorado Counties, Inc.

Colorado National Bank

Colorado Oil and Gas

Consolidated Coal Company

Department of Energy, U.S.

Eagle County Planning Commission

Forest Service, U.S.

National Audubon Society

Environmental Consultant*

Sand and Crushed Stone Operators*

State of Colorado

Bureau of Mines

Geological Survey

Delaware

Barber Sand and Gravel

Contractors Sand and Gravel

Delaware Brick Co.

Delaware Sand and Gravel

New Castle County Planning and Zoning Commission

Soil Conservation Service, Sussex County District

State of Delaware

Office of Management, Budget, and Planning

Department of Natural Resources and

Environmental Control

State Geological Survey

Sussex County Planning Office

Whittington’s Sand and Gravel Company

District of Columbia

Bureau of Mines, Liaison Officers for Maryland and

Delaware

Conservation Foundation

Department of Commerce, U.S.

OCZM, South Atlantic Regional Manager

Department of the Interior, U.S.

Environmental Policy Center

Friends of the Earth

Sierra Club

Wilderness Society

Indiana

Indiana Department of Natural Resources, Geological

Survey

Iowa

Iowa Geological Survey

*Notes a desire not to be identified by name or that records of interview are unavailable.
258 ● Analysis of Laws Governing Access Across Federal Lands

Maryland

Arundel Corporation

Campbell Sand and Gravel Company

Charles County Sand and Gravel

Contee Sand and Gravel Company

National Sand and Gravel Association

Stancill’s Inc.

State of Maryland

Conservation Education Council

Department of Natural Resources

Office of Coastal Zone Management

Geological Survey

Michigan

Michigan Department of Natural Resources

Minnesota

Minnesota Geological Survey

Missouri

Missouri Department of Natural Resources

Montana

Forest Service, U.S.

Anaconda Company

Nevada

Air Force, U.S.

American Selco

Anaconda Company

Arrow Ready Mix

Basic Industries

Bendix

Bureau of Indian Affairs, U.S.

Bureau of Land Management, U.S.

Bureau of Mines, U.S.

Bureau of Reclamation, U.S.

Carlin Gold Mines

C.B. Concrete Company

Cities Service

Citizens Against Bureaucracy

Citizens for Mining

Consulting Economic Geologist*

Consulting Geologist*

Consulting Mining Engineer*

Desert Protective Council

Duval, Inc.

Eagle Picher Industries

Environmental Representatives*

Exploration Geologists of Nevada

Exploration Resources

Forest Service, U.S.

Freeport Exploration

Galli Exploration

Hecla Mining Company

Homestake Mining

IMCO Services

Inspiration Development

International Minerals and Chemicals Corporation

Lake Mead Recreation Area Representative*

Las Vegas Building Materials

Law Firm*

Lawrence Livermore Laboratory

Milchem Citizens for Mining

Mining Engineer*

Naval Air Station, U.S.

Nevada Association of Conservation Districts

Nevada Mining Association

Newmont Exploration

Pacific Coast Building Products

Phillips Petroleum

Ranchers Exploration and Development Corporation

Sierra Club, Toiyabe Chapter

Silica Miners

Silver King Mines

Siskon Corporation

Small Miners*

South Pacific Land Company

State of Nevada

Conservation and Natural Resources Division

Division of State Lands

Superior Oil

Union Carbide

University of Nevada, Mackay School of Mines

Virgin Valley Opal Miners Association

Washoe County Representative*

Washoe Jeep Squadron, Nevada Open Land

Organized Council

Wells Cargo, Inc.

New Jersey

ASARCO

Atlantic County Citizens Council on Environment

Bureau of Mines, U.S.

Citizens*

Jessie S. Morie and Son, Inc.

New Jersey Zinc Company

Ralph Clayton and Sons Sand and Gravel

State of New Jersey

Bureau of Geology and Topography

Department of Environmental Protection

Department of Transportation

Implementation and Involvement Group, Office of

CZM

Tuckahoe Sand and Gravel Company

New Mexico

New Mexico Bureau of Mines and Mineral Resources

*Notes a desire not to be identified by name or that records of interview are unavailable.
Appendix C—Public Participation and list of Supporting Documents ● 259

North Carolina

Appalachian Regional Commission

Army Corps of Engineers, U.S.

Basnight Construction Company

Becker Sand and Gravel Company

Borden Brick and Tile Company

Boren Clay Products Company

Bureau of Mines, U.S.

Carolina Silica Corporation

Chambers of Commerce*

City and Town Representatives*

Clark Stone Company

Coastal Zone Management and Planning Council

College of Abermarle

Cotton Patch Mines

Cranberry Magnetite Corporation

Crowell Constructors, Inc.

Cumberland Paving Company

Dare County Representatives*

Dickerson, Inc.

Earl L. Saunders Excavation

Ecologist-forester*

E. L. Wade Construction Company

Feldspar Corporation

First Colony Farms Inc.

Fish and Wildlife Service, U.S.

Foote Mineral Company

Forest Service, U.S.

Glendon Pyrophyllite Company, Inc.

Harris Mining Company

Hays Corporation

Hitchcock Corporation

Hodges Equipment Company

IMC Chemical Group, Inc.

Jacob’s Creek Stone Company

J. L. Colville Construction Company

King’s Mountain Mica Company

Lawson United Feldspar & Mineral Company

Lithium Corporation of America

Martin-Marietta Aggregates

Maymead Lime Company, Inc.

Melson Sand Company

Nantahala Talc and Limestone

National Park Service—Blue Ridge Parkway, U.S.

National Park Service—Great Smoky Mountain, U.S.

National Park Service—Outer Banks, U.S.

National Sand and Gravel Association

Nello L. Teer Company

Newsome Sand and Gravel

North Carolina Aggregates Association

North Carolina Granite Corporation

Outer Banks Contractors, Inc.

Perry and Daniels Inc.

PHB Emerald Corporation

Phelps Dodge Exploration

Piedmont Minerals Company, Inc.

Pine Hall Brick and Pipe Company

Powhatan Mining Company

Retired Persons*

Soil Conservation Service, U.S.

Solite Corporation

Southern Aggregates, Inc.

State of North Carolina

Coastal Resources Advisory Council

Department of Transportation

Economic Coastal Management Office

Economic Coastal Resources Commission

Geologists*

Highway Department Field Office Representatives*

Land Quality Section

Mines & Quarry Division, Dept. of Labor

Natural and Economic Resources Department

North Carolina Commission of Indian Affairs

Site Planning, Parks, and Recreation Division

Statesville Brick Company

Stetson and Daniels, Inc.

Texasgulf, Inc.

University of North Carolina, Minerals Research

Laboratory

University of North Carolina, Zoology Department

Wake County Planning Department

Wake Stone Corporation

Washington Chamber of Commerce

Oklahoma

Oklahoma Geological Survey

Oregon

Oregon Department of Geology and Mineral

Industries

South Carolina

Addco Mining Company

Ashe Brick Company

Coastal Zone Advisory Committee

Coastal Zone Management Agency

Conservation Interests*

Gifford-Hill and Company, Inc.

Land Associates

Martin-Marietta Aggregates

National Oceanic and Atmospheric Administration,

Us.

South Carolina Coastal Council

South Carolina Heritage Trust Advisory Committee

South Carolina State Development Board

U.S. Peat Corporation

Waccamaw Clay Products

W. R. Grace and Company

Utah

Utah Geological and Mineral Survey

*Notes a desire not to be identified by name or that records of interview are unavailable.
260 ● Analysis of Laws Governing Access Across Federal Lands

Virginia

American Mining

Baillo Sand Company, Inc.

Bureau of Land Management, U.S.

Chickahominy Sand & Gravel

Citizens*

Corps of Engineers, U.S.

Eastern Wildlife Refuge Representatives*

Environmental Consulting Firms*

Fish and Wildlife Service, U.S.—Great Dismal Swamp

Refuge

Forest Service, U.S.

Geological Survey, U.S.

Gunter and Son, Inc.

J. C. Jones Sand Company

National Park Service, U.S.

Old Dominion University

R. A. Crewes Sand Pit

Sand and Gravel Operators*

State of Virginia

Attorney General Office

Coastal Resource Management Program

Commerce and Resources Department

Conservation and Economic Development

Department

Marine Resources Commission

Mineral Resources Division

Suffolk County Government, Office of City Manager

Virginia Institute of Marine Sciences

William and Mary College

Wyoming

Bureau of Land Management, U.S.

Citizens of Jackson Hole*

Forest Service, U.S.

Ranchers*

State of Wyoming

Environmental Quality Department

Land Commission

Wyoming Conservation Commission

Wyoming Oil and Gas Conservation Commission

University Associate Professor*

*Notes a desire not to be identified by name or that records of interview are unavailable.