Alaska’s vast national parks and open lands have also attracted millions of visitors to the state, building tourism into a major seasonal industry.  While giving credit to the state’s parks and refuges, many Alaskans do believe federal management is too restrictive and has held back potential growth in other industries, including tourism.

For example, unlike Lower 48 parks and refuges, the vast majority of the Alaska units have no road access and few facilities such as campgrounds and visitor centers. Alaska’s limited road system reaches only five of 17 National Park Service areas in the state. Access to those five areas is extremely limited. To get to the other 12 parks, visitors must fly in at a high cost. With the exception of high-end private lodges, there are no public facilities such as campgrounds and hotels in those parks.

Aside from the narrow Trans-Alaska Pipeline System (TAPS) corridor, it is impossible to cross the vast Alaska mainland from north to south or east to west without entering a restrictive CSU. While the extensive network of conservation units has preserved a great portion of Alaska, the cumulative overlay of federal land withdrawals has posed a challenge to reach natural resources on lands surrounded by these units, despite a provision in ANILCA addressing access corridors inside CSUs. These units also pose a challenge to the future construction of surface transportation corridors and power grids to connect Alaska’s towns and villages, most of which remain isolated and accessible only by air, which itself is often unreliable due to poor weather.

ANILCA Special Provisions

In addition to adding more than 104 million acres to existing CSUs in Alaska, ANILCA contained numerous unique provisions to address Alaska’s needs for economic development on state and private lands, for transportation and utility infrastructure, and to protect continued uses of federal lands by Alaskans for subsistence, recreation, and commercial opportunities.  As President Carter said upon signing ANILCA, “[this] strikes a balance between protecting areas of great beauty and value and allowing development of Alaska’s vital oil and gas and mineral and timber resources.” 

ANILCA’s special provisions included ensuring the ability of all non-federal landowners to develop and access their lands outside and within the CSU boundaries, ended the use of the Antiquities Act for large federal land withdrawals, and confirmed state management of its fish, wildlife, and water resources on all lands in the state.  ANILCA required management plans for each of the CSUs that the federal agencies completed with extensive consultation with the public, state, and Native corporations in the 1980s.  These plans and related rulemaking memorialized ‘the deal’; i.e., recognized federal management authority only applied to federal lands, established a process to authorize transportation and other infrastructure, and confirmed the state’s primacy in management of fish, wildlife, and waters.  The Alaska Land Use Council, composed of heads in Alaska of the federal and state agencies and Native interests, reviewed all such management plans and regulations for consistency with ANILCA and sat at a common table to resolve issues.

The ‘deal’ under siege 

Now, 35 years after passage of ANILCA, inventive federal agency and judicial interpretations are incrementally and individually acting to diminish these unique provisions.  Regulations and policies technically cannot trump law, but, since the Alaska Land Use Council sunset in 1990, no forum provides a mechanism to address resolution except those rare instances Congress steps in.  Judicial review is lengthy, expensive, and often gives deference to the federal agencies without recognizing the balance of interwoven ANILCA provisions.  This vacuum in oversight leaves the agencies to reinterpretations through policy and regulatory changes that erode ANILCA’s protections.  The following illustrate some current examples:

• In 1996 rulemaking, the National Park Service (NPS) expanded its authority to state waterways:  In ANILCA, Congress limited application of federal rules to federal lands, and the 1980s Alaska park and refuge management plans reflected this understanding.  In 1996, NPS revised its nationwide regulations to broadly expand their authority onto state-owned navigable waters based on reinterpretation of a 1976 Act.  NPS began enforcing its national regulations on state-owned lakes and rivers:  e.g., limiting Alaska residents from using state-authorized subsistence fishing methods (nets in Lake Clark, fish wheels in the Copper River), required permits for commercial dog team tours on the frozen Yukon River; threatened to cite state officers for using personal watercraft to conduct enforcement on the state-owned Naknek River; regulating boat storage and mooring buoys in Lake Clark; and threatened to cite a hunter on a state waterway for use of a state-authorized airboat to access traditional hunt areas outside the park – he later sued. 

The Ninth Circuit Court of Appeals in Sturgeon v. Masica dramatically expanded NPS authority to non-federal lands, including state and Native corporation lands.  Amicus briefs filed by Alaska Native corporations, State of Alaska, and many others believe Congress through ANILCA exempted non-federal lands from park and refuge unit regulations to assure state and Native corporations full rights to develop their lands under the Statehood Act and Alaska Native Claims Settlement Act (ANCSA).  Nationwide park regulations now applying to mining and oil and gas development on Alaska inholdings essentially renders the protection of ANILCA Section 103 meaningless. The federal court’s decision is contrary to the plain language of ANILCA, ignores the context under which Section 103(c) was enacted, undermines the congressional promises of ANILCA, and will have wide ranging consequences for interests that depend on the development and use of inholdings in Alaska. After nine years and great expense, this hunter’s suit will be heard January 20, 2016 by the U.S. Supreme Court.  We are hopeful the Supreme Court will reverse the Ninth Circuit Court’s decision.

• Based on the 2014 Ninth Circuit Court decision in Sturgeon v. Masica (above), on October 26, 2015, NPS proposed regulations that eliminate the exemption for oil and gas operations in Alaska, thus applying the national Part 9 mining regulations to development on non-federal lands:  NPS proposes [80 FR 206, 65572] to apply its national mining regulations to any oil and gas development of the two million acres of non-federal lands and subsurface estate in national park units in Alaska, which have been exempt under ANILCA for 35 years.  The rulemaking recognizes the ANILCA guarantee of access to inholdings under Alaska-specific regulations at 43 CFR Part 36, but that guarantee may be hollow if the Supreme Court upholds NPS regulation of activities on non-federal land.

• ANILCA struck a balance between preservation of land and allowing development of Alaska’s vital oil, gas, mineral, and timber resources to sustain the economy, yet a wave of new land withdrawals threaten to destroy this balance. Despite the fact that most federal lands in Alaska are either closed to development or severely restrict such activity, federal policymakers are moving to close millions of additional onshore and offshore acres in Alaska to resource development. In just a two-week period in early 2015, the federal government converted 12.2 million acres within the Arctic National Wildlife Refuge (ANWR) into de facto wilderness and permanently withdrew 9.8 million additional acres in the offshore Arctic from energy development. This came after the U.S. Department of the Interior removed approximately half of the National Petroleum Reserve-Alaska (NPR-A) from oil and gas leasing.

• BLM is in the process of designating Areas of Critical Environmental Concern (ACEC) across Alaska, including 685,000 acres in the Eastern Interior’s Fortymile Mining District, curtailing or prohibiting future access and development. ACECs can be managed more restrictively than CSUs under ANILCA, including wilderness. The designation and application of ACECs has been highly subjective and unjustified, especially considering the BLM’s mandate to manage lands for multiple uses. ACECs designations have occurred without the incorporation of sound science or a compelling body of research and information to justify the need for such closures, especially given the sharp decreased availability of public lands available for responsible resource development. As noted in the December 3, 2015 testimony of the Citizens Advisory Commission on Federal Areas (CACFA), “this overly unilateral and overly employed approach to land use designation ignores the ecological, social and legal context in Alaska, and is strongly reminiscent of ‘land freezes’ which prompted Congress to require significant restraint.”

Overall, ACECs in Alaska can be hundreds of thousands to over a million acres in size, set in place through a designation process lacking serious consideration of scale or scope. RDC believes use of ACECs in Alaska is occurring well beyond congressional intent under the Federal Land Management Policy Act (FLMPA). This and more has occurred in conjunction with a series of major federal rules – from significant expansion of “Waters of the United States” to the Environmental Protection Agency’s climate regulations that will bring additional costs and severe consequences for future energy and mining development in Alaska.

• The implementation of the Roadless Rule in the Tongass and Chugach National Forests clearly violates the spirit and intent of the ‘no more’ withdrawal intent of ANILCA. The Roadless Rule circumvents the spirit and intent of ANILCA by not explicitly calling roadless areas a new CSU, but in essence achieving the same outcome of limiting virtually any activities. Application of the Roadless Rule in Alaska completely obliterated one of ANILCA’s cherished promises: that Congress’ careful balance between the national interest in conservation and Alaska’s social and economic needs should not be disturbed. The loss of this foundational premise has resulted in severe economic impacts to local communities in Southeast Alaska and has sharply curtailed responsible and sustainable timber harvests in the nation’s largest national forest. Before the Roadless Rule was put in place in 2001, the forest products industry in Alaska provided thousands of well-paying jobs to local residents. Today the industry accounts for only several hundred.

• Federal agency study and recommendation for new wild and scenic rivers designations in Alaska violates ANILCA’s ‘no more clause.’ Federal land managers have routinely ignored Section 1326(b), a key provision of ANILCA which states that “no further studies of federal lands in the State of Alaska for the single purpose of considering the establishment of a conservation system unit ... or for related or similar purposes shall be conducted unless authorized by this Act or further Act of Congress.” Federal agencies have commonly navigated around Section 1326(b) by conducting wilderness and wild and scenic river reviews in conjunction with updating land management plans. The agencies claim that because the studies are conducted in conjunction with management plan revisions, they are not conducted “for the single purpose” of establishing a new conservation system unit. Moreover, area and rivers reviewed and recommended for designation are protectively managed until Congress acts, or indefinitely if Congress does not act. BLM has been conducting wild and scenic river reviews in all of its land management plans in Alaska and the number of rivers involved is astonishing. RDC agrees with CACFA that these and similar reviews violate ANLICA. Wild and scenic rivers and wilderness areas are conservation system units, and Section 1326(b) prohibits studies, which consider the establishment of conservation system units unless authorized by ANILCA or Congress. Federal agencies claim Section (d)(1) of the Wild and Scenic Rivers Act provides the authority to conduct “agency-identified” reviews, but Section 1326(b) requires congressional authorization. Moreover, internal agency policies require any rivers studied for potential recommendation are protected indefinitely.

Added on top of previous land withdrawals, the federal government is now either blocking or making it most difficult for responsible development to move forward on most resource-rich lands in Alaska. New withdrawals and a number of additional federal rules are hindering the ability of Alaskans to produce energy, minerals, and timber for America. Such actions also undercut Alaska’s economy and deprives the state of much needed revenue. It also deprives Alaskans of jobs to support their families.

New federal land withdrawals violate Alaska protections under ANILCA

The new wave of federal land withdrawals is in direct conflict with special protections afforded to Alaska under ANILCA. In exchange for withdrawing so much of Alaska from multiple-use management, Congress attempted to accommodate the unique characteristics of Alaska and the Alaskan way of life in writing ANILCA. Congress included numerous exemptions for Alaskans, known as the “Alaska Protections.” As noted earlier, these provisions were for access and continued use of valid existing rights, lands and resources. These special provisions were to allow access to inholdings and provide continued use of federal lands for recreation, hunting, and the pursuit of economic prosperity.

More than 20 million acres of combined private and state lands are located within the boundaries of CSUs in Alaska, and millions more acres can only be accessed by crossing these units. The private lands include surface and subsurface land conveyed to Alaska Natives under ANCSA. As noted, recognizing these and other unique circumstances, Congress wrote the Alaska protections to provide for traditional uses and ensure that the state and Native corporations could use and develop their lands under ANCSA and the Statehood Act to sustain the economy and for the economic benefit of the Alaska Native people.

Access was at the core of the protections – access to Native corporation lands, access to Native allotments, access to homesteads, and access to state-owned lands. Access was such a big issue that one major section of the act, Title XI, focused entirely on new access routes where none existed before. ANILCA also reaffirmed valid existing rights to access historic trails, private in-holdings, and existing cabins.

To some, the most important special protection in ANILCA was the ‘no more’ clause, which stated that no more land in Alaska shall be withdrawn for conservation purposes without the approval of Congress. As noted earlier, the clause was included in the law to protect Alaska from additional land withdrawals in the future. Section 101(d) of the act states that the need for more parks, preserves, monuments, wild and scenic rivers, and refuges in Alaska has been met.

Additional protections in ANILCA covered subsistence activities, including hunting and fishing, and allowing for motorized travel on federal lands for subsistence and traditional activities.  Additionally, miners with existing claims could continue to develop and mine their claims if they could meet all the necessary requirements. Yet in the four decades ANILCA has been in place, the state, as well as miners and others have clashed with federal land agencies, claiming managers have broken promises granted under the act to preserve access and valid existing rights. They contend access and resource development have been challenged, and in some cases, outright stifled by a constricting tangle of federal restrictions, policies, and regulations. Unfortunately, many of the promises and protections have not been kept.

As noted, more than 40 million acres of Alaska have been withdrawn or proposed for protection over the past seven years, including half of NPR-A and almost all of ANWR through proposed wilderness designations, clearly undercutting the ‘no more’ clause. Nearly 15 million acres have been removed from the timber base in Alaska’s two national forests, leading to the demise of the forest products industry.

Clearly, there has been a lack of balance in ANILCA’s implementation, especially with regard to land withdrawals and access to CSUs. The most glaring example is Section 1002 of ANILCA, which outlined a process by which the state could extract petroleum from the coastal plain of ANWR, an area comprising only eight percent of the refuge. Today, the state is seeking access to only half of the 1002 area, or just four percent of the refuge. However, the state has been consistently denied access to the 1002 area to responsibly develop a potential of 10 billion barrels of oil, which could refill TAPS, Alaska’s economic lifeline. This area is approximately 60 miles east TAPS, which is currently running at three-quarters empty. TAPS low throughput, which is a big contributing factor to a current $3.5 billion state budget deficit, is not for a lack of resources, but a lack of access to the resource. To sustain their livelihoods and prosper, Alaskans need access to the resources that ushered in statehood more than 50 years ago – resources such as oil, gas, minerals, and timber.

Federal Rulemaking eroding ANILCA provisions

RDC is concerned with the broad range of issues and potential consequences of recent federal rulemaking, including rules by the National Park Service, the Forest Service and the Fish and Wildlife Service that will essentially undo many of the ANILCA protections for public uses of federal lands, inholdings and adjacent lands, and waterways on a much larger scale than is evident by reviewing each rulemaking independently.  The NPS rulemaking on wildlife changes the closure process for all public uses and grants discretion to superintendents to restrict activities without the public process envisioned by Congress in ANILCA.  Combined that and other actions with the expansive interpretation of the Ninth circuit court on Park Service authority to regulate activities under its national regulations on private and state lands within exterior boundaries of the park units, virtually no current development activities would be allowed in the future on non-park lands within the park boundaries. 

General Recommendations

RDC appreciates the willingness of the Committee to review ANILCA, and encourages the Committee, through legislation, to take whatever steps it can to make clear that ANILCA must be implemented as intended by Congress, not as federal agency personnel wish it were written. Federal land managers must restore balance in the implementation of laws and stop changing the interpretation of ANILCA to achieve their own agenda. The following steps should be taken to restore balance and Congressional intent: 

• National regulations and policies, including Resource Management Plans and Areas of Critical Environmental Concern, must recognize and comply with ANILCA’s unique provisions and the Alaska Protections. The implementation of FLMPA and other agency organic acts should be considered amended by ANILCA and should be interpreted consistently with the Congressional intent of ANILCA.

• Federal authorities must adhere to the ‘no more’ clause, which prohibits the President from using the Antiquities Act to create new monuments in Alaska without congressional approval. There should be no additional land withdrawals in Alaska since ANILCA already struck a balance between preservation and the multiple use of lands for commercial and economy-sustaining activities.

• The word ‘withdrawal’ in Section 1326 of ANILCA should be defined as specifically recommended by the Alaska Miners Association in its January 15, 2016 letter to the committee:

Section 1326 of ANILCA is amended by adding a new subparagraph (c) to read: Consistent with the Congressional intent expressed in Section 101 (d)and notwithstanding 16 U.S.C. 1702(j),  for the purposes of Section 1326 (a) the terms “withdraw,” “withdraws” and “withdrawal” shall mean any agency action or inaction that has the effect of designating public land in Alaska as: a Wilderness Study Area; a Wild and Scenic River; an Endangered Species Act habitat area; or any land use designation, made pursuant to the Federal Land Policy Management Act or the National Forest Management Act or any other planning statute, that has the effect of prohibiting or limiting resource uses allowed before the day of passage of this Amendment or impeding access to or inhibiting the development of: renewable energy projects (including hydropower), mining (including exploration), oil and gas (including exploration), or timber harvest.

• Federal agencies shall expend no funds to apply conservation system unit regulations to management of navigable waters, which are under the jurisdiction of the State of Alaska.

• All existing logging roads, public trails, and historic access roads and trails established by public use prior the 1960s land freeze should be recognized on federal lands, including those asserted as RS2477s by the State of Alaska. 

• Access to inholdings must be allowed as guaranteed under the law.

• The federal government must provide continued use of federal lands for recreation, hunting, subsistence and traditional use, and the pursuit of responsible resource development to sustain the Alaska economy.

• The Mining in the Parks Act should not apply in Alaska.

• The Alaska Land Use Council as described in ANILCA Title XII should be re-established and charged with the responsibility of ensuring that the promises of ANILCA are kept.

• ANILCA education opportunities should be expanded to systematically inform and educate federal land managers and others in Alaska and Washington, D.C. about the law, including historical context and current relevancy. 

Conclusion

In review, the success of Alaska’s resource industries, including Alaska Native corporations, the bedrock of Alaska’s economy, is dependent on a series of promises and protections made by Congress that provide access to natural resources. These promises started with the Alaska Statehood Act, continued with ANCSA, and culminated with ANILCA.  These acts collectively allow the state and Native corporations to identify, select, and receive lands that provide the resources necessary to build the state’s economy and serve the interests of Alaskans.

More than just confirming access, ANILCA ensures that state, Native corporations, and other private owners will have adequate and feasible access to their lands across federal units. Moreover, ANILCA Section 103(c) ensures that any state, Native corporation, or other private lands, including selected lands within reserved federal CSUs, will not be treated as part of those units and will not be subject to the regulations applicable solely to public lands within those units.

Federal agencies are re-interpreting various Acts and drafting revised management policies to justify pursuit of federal regulations that undermine ANILCA’s special provisions and protections with wide-ranging consequences for not only business and economic interests, but the states’ abilities to fulfill its fish and wildlife conservation responsibilities.

Thank you for the opportunity to offer RDC’s perspective and reflections on ANILCA and suggestions for improvements to the law.

Sincerely,
Resource Development Council for Alaska, Inc.

Cc:          U.S. Senator Dan Sullivan
                Congressman Don Young
                Governor Bill Walker