Legislature(2021 - 2022)BUTROVICH 205
02/08/2021 03:30 PM Senate RESOURCES
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| Audio | Topic |
|---|---|
| Start | |
| Overview: Alaska National Interest Lands Conservation Act of 1980 (anilca) | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
ALASKA STATE LEGISLATURE
SENATE RESOURCES STANDING COMMITTEE
February 8, 2021
3:30 p.m.
MEMBERS PRESENT
Senator Joshua Revak, Chair
Senator Peter Micciche, Vice Chair
Senator Click Bishop
Senator Gary Stevens
Senator Natasha von Imhof
Senator Jesse Kiehl
Senator Scott Kawasaki (via teleconference)
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
OVERVIEW: ALASKA NATIONAL INTEREST LANDS CONSERVATION ACT OF
1980 (ANILCA)
- HEARD
PREVIOUS COMMITTEE ACTION
No previous action to record
WITNESS REGISTER
TINA CUNNING, ANILCA Consultant
Anchorage, Alaska
POSITION STATEMENT: Provided an overview of ANILCA.
ACTION NARRATIVE
3:30:44 PM
CHAIR JOSHUA REVAK called the Senate Resources Standing
Committee meeting to order at 3:30 p.m. Present at the call to
order were Senators Bishop, Kawasaki (via teleconference),
Kiehl, Micciche, Stevens, and Chair Revak.
^OVERVIEW: Alaska National Interest Lands Conservation Act of
1980 (ANILCA)
OVERVIEW: Alaska National Interest Lands Conservation Act of
1980 (ANILCA)
3:31:44 PM
CHAIR REVAK announced the committee will hear an overview about
ANILCA from an ANILCA training expert, Ms. Tina Cunning. Ms.
Cunning has many years of ANILCA experience and has done many
prior trainings for the legislature.
3:32:39 PM
TINA CUNNING, ANILCA Consultant, Anchorage, Alaska, said her
overview is not a training, noting a typical ANILCA training
involves two full days. She added her organization has done
shorted sessions with the legislature and she welcomes the
opportunity to come back.
She said she works as an ANILCA consultant since retiring as the
ANILCA Program Director with the Alaska Department of Fish and
Game (ADF&G).
She addressed the slide, Presentation Outline. She said she will
provide a bit of history leading into ANILCAnoting committee
members had a presentation the previous week from Mr. Mylius
regarding Alaska's land and water issues leading up to ANILCA.
She explained her presentation will provide committee members
with some background of all the deal making that went on in
crafting ANILCAwhich [Congress] passed in 1980then an
introduction at the very highest level to cover key parts,
provisions, amendments, and the mechanics of ANILCA 40 years
later.
3:34:24 PM
She referenced the slide, National Perspective, noting there was
an environmental awareness wave in Congress at the time of
ANILCA that included a lot of bipartisan work among delegations
to pass related landmark legislations. Passage of ANCSA reflects
that same awareness in its Section 17(d)(1), Section 17(d)(2),
and Section 17(a).
She noted slide for the Alaska Native Claims Settlement Act of
1971 (ANSCA). She explained with Section 17(a)(1) in ANCSA,
Congress established the Joint Federal-State Land Use Planning
Commission. The commission involved State and federal agencies,
and ANCSA Corporations representativeswho recently achieved
their goal of major land claims settlements.
MS. CUNNING pointed out committee members heardvia Mr. Mylius'
presentationthat the U.S. Secretary of Interior (Secretary)
froze State lands selections a few years prior to ANCSA while
seeking settlement of the Native lands claims.
3:35:31 PM
She referenced the slide, ANCSA Section 17(d)(1) and Section
17(d)(2). She explained while passage of ANCSA intended to free
up lands for selections, ANCSA also withdrew lands from
selectionSection 17(d)(1). The Secretary received authorization
to withdraw lands from all forms of mineral entry, leasing,
classification study, and the land withdrawals. The Section
17(d)(1) withdrawals do not expire and includes possible
reclassification and rebooking by the Secretary at any time.
She noted ANCSA Section 17(d)(2) directed the Secretary to
withdraw up to 80 million acres from State and ANCSA selections,
and other activities, to study for Congress the designation of
conservation system units (CSUs), and establish a 7-year
deadline by 1978 for the withdrawals to expire.
She summarized just 12 years after statehood and at the same
time as the Native organizations were just winning their
legislation to allow for land selections, the ANCSA sections
froze both out of large area selections during the study process
by the Joint Federal-State Land Use Commission. Lobbying by
various delegations occurred towards passage of what became
ANILCA.
3:36:52 PM
She addressed the slide, Stakeholders and Interests. She
explained everyone that had been involved in passage of ANCSA
then pivoted to working on reaching a conclusion to the Section
17(d)(2) provisions. The environmental community in both
nationally and in Alaska had been very successful in those
previous years in getting legislation like NEPA and the EPA
passed, and they viewed Alaska as the last major wilderness.
They wanted as much acreage as possibleduring this time there
was no internet, so meetings, newsletters, teleconferences where
the source of information.
She noted Alaskans were greatly concernedhaving just achieved
statehoodthat the large withdrawals were going to restrict
their way of life, their economic and social future, and the
interests like the timber industry, mining, and the ANCSA
corporations; all were worried about the impacts of the
withdrawal areas on access to develop their own lands and have
an economic future that they thought the federal government
promised.
MS. CUNNING said the governor's office established a Washington,
DC office to assist Congress. There were staff from the State
and ANCSA Corporations who were present to provide information
on access and key areas where industries were located. The
Citizens for the Management of Alaska Lands formed to help lobby
Congress and many others were involved in participating in the
hearings, testimony, and providing information to Congress.
3:38:19 PM
SENATOR STEVENS asked her who was Alaska's governor and
congressional delegation at that time.
MS. CUNNING replied, Governor Hammond and the congressional
delegation was Senator Gravel, Senator Stevens, and Congressman
Young.
She addressed the slide, Dozens of "(d)(2)" Bills Introduced,
and noted in 1974, U.S. Secretary of the Interior [Rogers
Morton] introduced a 40-page bill specific to addressing
creating CSUs; from 1974-1977, most of the bills stayed within
that approximate range that had been set up under Section (d)(2)
to withdraw up to 80 million acres for study.
She noted in 1977, Congressman Udall introduced HR 39, a bill
which significantly changed the game. Instead of up to 80
million acres, HR 39 proposed 115 million acres of new CSUs and
145 million acres of instant wilderness.That would have been
old and new CSUs and all the existing units in Alaska including
the Tongass Forest would be instantly wilderness. That changed
the approach everyone was taking towards the "(d)(2)" bill.
She said from 1977-1978, Alaska's congressional delegation
changed its focus from trying to get smaller land withdrawals to
focusing on protecting the public uses that were so important
for Alaskans and Alaska's future. In 1978, Senator Gravel
filibustered the bill that reached the floor, so Congress
adjourned without having passed the legislation in the fall of
1978. She pointed out that the "(d)(2)" legislation in ANCSA
required that the withdrawals expire in 1978.
3:40:48 PM
She addressed the slide, Actions Preceding Expiration of
December 1978 "(d)(2)" Withdrawals. With Congress going home
without having passed the bill, in November 1978, U.S. Secretary
of the Interior [Cecil D. Andrus] withdrew 110 million acres
through authorization under the Federal Land Policy Management
Act (FLPMA). In December 1978, President Carter converted 56
million acres of those 110 million acres into 17 national
monuments under the Antiquities Act.
MS. CUNNING said Alaskans did not know exactly what allowable
activities could occur within national monuments. There were
park rangers approaching trappers in the field telling them they
could not trap, and local residents told they could not use snow
machines. She noted she lived in Glen Allen at the time and
there were [Bureau of Land Management] (BLM) protests to not
lock Alaskans out. The national monuments during the Carter
Administration resulted in Alaska's congressional delegation
focusing even more firmly on the needed uses of those federal
lands while the coalition and environmental groups increased
their lobbying for more land in the CSUs.
She noted early in 1979, the governor put together an advisory
team of ANCSA representatives, industry, even Alaska
conservationists to come up with some consensus points about
what they needed in the final legislation. They worked with the
legislature and came up with the first six points that are on
this next slide, the seven consensus points.
3:42:05 PM
She explained the slide, 1979 Governor and State Legislature
adopted Seven Consensus Points, "The Alaska Position." Governor
Hammond worked out the first six points and the legislature
added the seventh point, the "no more" clause, insisting that
there be no more large withdrawals of federal lands from general
public uses in Alaska. In 1979 the delegation actively lobbied
for these points in their hearings and debates in Congress.
She addressed the slide, Final Steps to Passage 1979-1980. She
explained there were more markups, hearings, negotiations, and a
lot of deal cuttings that is not always good for legislative
history records. In August of 1980, the Senate passed HR 39the
bill process involved substitutes, but everybody wanted HR 39 to
be name. The Senate passed HR 39 in August 1980. The bill was
similar in size to the House bill that failed in 1978, but there
were more protections for Alaskans such as provision for
traditional access and activities on federal lands.
She detailed in November 1980, President Carter lost the
election and within the remaining three weeks of a lame duck
Congress, the House passed the Senate version of HR 39 on
November 21, 1980, and Congress adopted a concurrent resolution
on December 1, 1980 to fix a couple things that were missing.
President Carter signed ANILCA on December 2, dubbed "the great
compromise." At the bill signing, President Carter said, "Now
Alaskans can get on with their land selections and their lives."
MS. CUNNING noted some people asked why U.S. Senator Stevens did
not vote against passage of HR 39in those days Congress was
respectful regarding single state legislationthe delegation
opposed not moving the bill forward. U.S. Senator Stevens'
response was if the bill had not passedwith all the built-in
comprehensive compromises protecting Alaska's public usesthen
the balancing enshrinement would not have occurred and endured,
and that would have left future battles for Alaska's lands for
subsequent congresses.
3:45:19 PM
She referenced the slide, Presentation Outline, to address
ANILCA itself and breakdown its components. Most people view
ANILCA as lands legislation that set aside large swathes of
general BLM and U.S. Forest Service (USFS) public use lands into
CSUs.
She detailed the slide shows the breakdown of ANILCA by pages
and percentages. Approximately 25 percent of the bill is the
establishment of the CSUs and special areas, but 30 percent of
the bill balances those designations with specific provisions
for protecting public uses and traditional activities. Forty-two
percent amends ANCSA and the Alaska Statehood Actwithin nine
years of passage of ANCSA. Amendments within the bill addressed
problems that cropped up during ANCSA's implementation42
percent of the bill contains those amendments.
She referenced the slide, ANILCA's Organization, Four Basic
Parts. There are 15 titles in ANILCA that she groups into four
major parts for training purposes. The introductory material
which is the definitionsthe purposes of the act, etcetera,
applies to most of the Actunderstanding that section is
fundamental to understanding the rest of the Act.
She said the second grouping is the establishment for the
expansion of CSUs within areas, Titles 2-7, that created the
parks, refuges, expanded existing parks and refuges, and created
the special BLM areas, etcetera. The third grouping are the
special Alaska provisions. The fourth grouping are the
amendments to ANCSA and the Alaska Statehood Act.
3:47:15 PM
MS. CUNNING addressed the slide, Title IPurposes, Definitions,
and Maps. She explained Title I established Congress' intent in
passage of the ANILCA to preserve the unique areas, certain
values, and usesall detailed in Title I. Congress wanted to
provide the opportunity for rural residents to continue their
subsistence way of life, and explicitly noting not wanting any
more land set aside through the Antiquities Act. ANILCA
represented a proper balance of uses and conservation.
She said the definitions within ANILCA are very important,
noting over the years having to always go back and look at the
definitions. Two of the definitions really stand out for the
public to understand and one is the definition of "public land."
She explained ANILCA defines "land" as being land, waters, and
interests therein; "federal land" as land in which the title is
in the federal government; and "public land" as federal land
with some provisions related to the status of the selections by
the State and the Native Corporations. Since those selections
are almost all in the tentatively approved or "IC process" now,
the distinction between federal lands and public lands is very
minoralmost interchangeable.
She said the definition of CSUs refers to the parks, refuges,
wild and scenic rivers, the national trails, and the wilderness
areas. However, CSUs do not include the two BLM special areas,
the Steese and the White Mountains National Conservation and
Recreation Areas. Always going back to the definition of CSUs is
important because it does not include the "study areas"
designated for wilderness and several other designations. When
looking through specific provisions in ANILCA, where the
provision applies is importantwhether public or CSU lands.
She explained the third section of Title I is the "Maps
Section." She said [Section 103] resulted from meetings and
markup sessions where they basically used grease pencils to draw
lines. The final maps that accompany the passage of ANILCA are
what control the acreage of the new units. Prior to map
archival, the Department of Natural Resources (DNR) had the
foresight to get photographs of the ANILCA maps that shows
exactly where those boundaries werethe maps are accessible on
the DNR website.
3:50:29 PM
She said one of the important parts of Section 103 is that the
boundaries for the new areasGlacier Bay, Katmai, and many of
the other units that are in the coastal areasdo not extend
seaward beyond mean high tide to take in the State's tidelands
and submerged lands. Sometimes the maps have a line out in the
water for the new areas, but the legal boundary description ends
at mean high tide.
MS. CUNNING noted one of the significant parts of Section 103 is
that Congress authorized the agencies to do minor boundary
adjustments and land exchanges without going back to Congress
for approval. Part of the reason for that authorization was due
to the areas' extensiveness and the possibility for missing some
element. For example, designating a small portion in a
wilderness area for a railroad hub does not qualify, so the
agency could adjust the boundaries to where necessary.
She said the third part of Section 103 is Section 103(c), a
section which has been in court. Section 103(c) says only
federal land within the CSU boundaries are public lands, the
State and private lands acquired by the United States that are
within those boundaries can become part of the CSU, but the CSU
regulations only apply to the federally owned lands and waters
within that; this was an extremely important point for both the
ANCSA Corporations and the State in the passage of ANILCA, and
this issue was the key focus of the Sturgeon lawsuit.
3:52:14 PM
SENATOR MICCICHE said his understanding is that all coastal
lands between mean high water and down title zone is State land.
MS. CUNNING answered correct, except where there may have been
pre-statehood withdrawalsa topic Mr. Mylius went through with
the committee the previous week. For example, Glacier Baywhich
has been the courtthe boundary for the original Glacier Bay
unit does extend seaward, but where ANILCA added land northward
up towards the Yakutat area, the boundary ends at mean high
tide. There are some units on the Alaska Peninsula where the
"grease pencils" are a little bit offshore. Several years ago,
the U.S. Department of Interior published some corrections to
their maps noting that the intention for boundaries of the new
units was to end at mean high tide, but the department has not
corrected all the mappings.
3:53:48 PM
SENATOR MICCICHE noted the Sturgeon case was about navigable
waters that does not require tidal influence to be State
navigable.
MS. CUNNING answered yes, but the two scenarios are different
issues. The Sturgeon decision by the U.S. Supreme Court was very
clear that the regulations for the management of CSUs applies
only to the federally owned lands.
SENATOR MICCICHE replied her answer is fine for now.
MS. CUNNING replied she can do a session some day for the
committee on ownership and management.
SENATOR MICCICHE said he can ask additional questions offline.
He said he is particularly interested in that part of ANILCA
because he thinks that is where the State had the greatest
struggle on State management on submerged lands.
3:55:17 PM
MS. CUNNING referenced the slide, Title IINational Park System.
She explained Titles II-VII create the CSUs and special areas.
The first one, Title II, is the National Park System. Under
Title II, Congress established 10 new national parks in Alaska,
expanded 3 existing units, and did not touch or address two of
the unitsSitka and the Klondike.
She said the 15 units that ANILCA specifically addressed, Title
II established independent purposes for each unitthey are
different for each of those park units. Title II established the
acreage and key directions for the administration of the parks
and preserve units, including additional directions for the
administrations of the park and preserves in Title XIII.
She explained Title XIII applies to many of the CSUs and
[inaudible] federal landsnot referenced in each of the CSU
titles for each of the units. She remarked, "One not only looks
at the title, for this case park system to Title II, but you
also have to check for the provisions that are in the other
titles and particularly Title XIII to see what might be specific
and be applied to the park units." That is why each slide
reminds people to double check.
She noted one of the significant provisions required management
plans for all park units to lay out what is allowable, existing
conditions, access, and future access needs. Congress said the
plan development required consultation with the public,
Corporations, other adjacent land managers, and the State of
Alaska, and all subsequent management plan revisions required
the same degree of consultation; this is very important and that
is where the management direction for the units gets set.
MS. CUNNING said there are several other provisions, and each
unit has specific purposes and uses. Title II is where Congress
made its authorization determination for Ambler Road after it
made a public interest findingafter much debate like many other
things in ANILCA.
3:58:40 PM
She referenced the slide, Title IIINational Wildlife Refuge
System. Congress established 9 new National Wildlife Refuges,
modified 7 of the existing refuges, and established statutory
purposes for each of the 16 National Wildlife Refugesacreage
and individual provisions. Again, Congress required management
plans and revisions in consultation with the public, land
owners, State, and Native Corporations. The management plans
were supposed to specify the uses considered compatible with the
statutory purposessomething unique to the refuge systemjust
like the park system had provisions for upland support of
commercial fishing.
She noted in 1997, Congressman Young was one of the primary
authors of the Refuge Improvement Act which established
additional administrative directions for the refuge systems.
Administrative provisions within ANILCA melded into the Refuge
Improvement Act, but its last section says ANILCA prevails where
there is a conflict between the two acts. She said she wishes
the Alaska congressional delegation would always keep in mind
that when there is legislation that comes along that could
potentially conflict with ANICLA that it includes that kind of
[inaudible] clause.
4:00:19 PM
She addressed the slide, Title IVNational Conservation and
National Recreation Areas. She noted BLM was losing vast amounts
of its acreage to other agencies for CSUs, and Congress decided
to establish two special areas, the Steese and the White
Mountainsin the Fairbanks area; they are not CSUs, they are
"areas." When looking at public uses in other parts of ANILCA
and where they apply, one must take care to verify if a CSU says
"area" as well. She noted there are special provisions for the
Steese, and White Mountains related to allowing mining and other
activities in those areas.
She referenced the slide, Title V - National Forest System, and
noted Congress expanded the Chugach and the Tongass National
Forestsexpansively. Congress withdrew parts of the Chugach from
the mining laws and created two special areas in the Copper
River area. Expanding the Tongass was a hard-fought struggle
leading up to its passage. Congress also established two
national monuments, Misty Fjords and Admiralty Island Monument.
Out of those they carved some specific provisions for
"unperfected mining claims," and to allow, for example, the
Greens Creek mining operation. There are numerous provisions for
land exchanges with the land ownership, [Admiralty Island
National Monument] was really complicated.
4:02:09 PM
MS. CUNNING addressed the slide, Title VI - National Wild and
Scenic River System. Congress designated 25 wild and scenic
rivers as wild, scenic, or recreational. Sometimes people refer
to 26 wild and scenic rivers in Alaska, but there is only 25a
portion of the Alagnak River ran within a National Park and BLM
land, ANILCA listed the river twice.
CHAIR REVAK asked her to repeat the name of the river.
SENATOR KIEHL remarked Ms. Cunning said the Alagnak River.
MS. CUNNING noted the Situk Rivernear Yakutatthe Secretary
received a recommendation to list the river for designation.
However, the community in the Yakutat was concerned due to the
fisheries and timber in their area. In the end, the regional
USFS forester, the governor of Alaska, Tak-Tat Kwaan, and the
Borough and City of Yakutat signed a four-party agreement. The
cooperative agreement called for all parties to work together on
managing the corridor instead of a wild and scenic river
designation. The Secretary agreed and officially withdrew the
designation recommendation.
SENATOR STEVENS asked her to name the river listed twice as a
wild and scenic river.
MS. CUNNING answered the river is the Alagnak River, it flows
out of Katmai National Park and Preserve, designated in both the
park and outside of the park in BLM land.
4:04:22 PM
She said Title XI expressly amends the Wild and Scenic Rivers
Act, which is important in Alaska. For example, the Gulkana Wild
and Scenic River has a pipeline and roads. Congress clearly
stated when establishing wild and scenic river boundaries that
those boundaries only include the federal land within those
boundaries. The statute lays out several administrative
provisions like management planning, no mining within a half
mile of the wild river designation, and no State mining
selections or appropriations on the federal lands that are
within two miles of rivers while studies were going on.
MS. CUNNING said several other amendments to the Wild and Scenic
River Act are important, but the piece about only applying to
the federal land is important to Alaskans. She noted when
considering the Gulkana River, the Ahtna Native Regional
Corporation owns a third of the river, BLM owns a third, and the
State owns a third plus the riverbed; that is why Congress makes
it very clear.
4:05:53 PM
She referenced the slide, Title VII - National Wilderness
Preservation System. She explained Congress designated eight
wilderness areas that overly National Park units, and their
boundaries do not necessarily follow the same boundaries as the
park boundaries. There are 13 wilderness areas in the refuges,
and 14 in the Tongass Forest. Congress designated a wilderness
study area in the Chugach, the Nellie Juanthe Chugach
Management Plan was just out again for another revision.
She said the interesting provision that was part of the
balancing act of ANILCA when designating 14 wilderness areas in
the Tongass at that time, Congress also mandated that the
Secretary make 4.5 million board feet of timber available each
year4.5 billion board feet per decadein the Tongass for
harvest. While carving out big chunks of the Tongass for
wilderness designation and monuments, Congress also wanted to
protect the harvest of timber. ANILCA also prohibited the
Secretary from conducting further statewide "roadless review" in
Alaska and there are several other provisions related to the
administration of wilderness area units.
4:07:31 PM
She addressed the slide regarding examples for ANILCA's
unprecedented special wilderness provisions that only apply in
Alaska. The provisions address old methods of access,
activities, and facilities that Alaskans were concerned about
for traditional harvest and subsistence activities. Various
provision pieces within ANILCA that apply to wilderness
designated lands includes new and existing cabins, facilities
for research, access to inholding, and even the ability to
develop transportation and utility systems across those areas.
She said while 25 percent of the federal lands in Alaska are
designated wilderness by ANILCA, many traditional existing
activities accessed federal lands; however, Congress directed
"shall be allowed" to establish regulations and processes for
those activities not normally allowed in wilderness areas. The
special provisions for uses of the federal lands in Alaska is
approximately 30 percent of ANILCA.
4:09:23 PM
MS. CUNNING explained the slide, Title VIII - Subsistence
Management and Use. She said Title VIII is unique, there are
only a couple other titles in ANILCA where Congress made
individual findings, laid out what their policy intent was for
management, and specified definitions that apply to Title VIII.
She said the intent of Title XIII was to provide a preference
for the opportunity for customary and traditional subsistence
use among other consumptive uses by a rural residence on the
federal land. The title lays out several important pieces
related to local and regional participation in the regulatory
process, authorizes the federal secretaries to regulate
harvests, and directs the Secretary to conduct monitoring of the
subsistence priority; Congress made it permissive for the State
to administer this sectionthis is the first part of Title VIII
and it granted unique provisions related to coordination between
the State and federal government. However, Title VIII is not all
about subsistence harvest, Title VIII is a complicated title.
She noted Title VIII has an important provision, Section 810,
which requires all federal land management decisionsother
decisions alsoreceive evaluation for their impacts on
subsistence; that is a process where federal agencies go through
whenever they are doing their management planning and making
other decisions.
She said one of the significant parts of Title VIII that was
very important to all Alaskans was Section 811, which says, "The
Secretary shall permit the traditional methods of access for
subsistence uses." This is not traditional subsistence uses,
this is traditional methods of access and there is a special
rulemaking for defining the methods, application, and closure.
4:12:00 PM
She said the slide, Title X - Federal North Slope Lands Studies,
Oil and Gas, included North Slope lands studiesdone in the
1980sand the establishment of Sections: 1001, 1002, 1003 for
areas of prohibition on oil and gas development in the Arctic
Refuge. Title X has several provisions related to research and
some important provisions related to oil and gas leasing in the
non-wilderness portions. Congress amended Title X several times.
4:12:32 PM
CHAIR REVAK announced Senator von Imhof has joined the committee
meeting.
SENATOR KIEHL asked her if there is difference between the terms
"wilderness study" and "wilderness review."
MS. CUNNING replied the two terms are essentially the same. The
agencies review their lands for wilderness characteristics when
they are doing various management planning. The Nelle Juan Study
Area was specifically set aside as a study area, so there are
some ANILCA provisions that are different for wilderness study
areas, but that would not include areas strictly reviewed for
possible wilderness characteristics under the general management
planning process.
4:13:43 PM
She addressed the slide, Title XI - Transportation and Utility
Systems (TUS) in and Across, and Access into, Conservation
System Units. She noted Title XI was a huge part of the lobbying
effort by the State, Native Corporations, and the various
interests in Alaska during the passage of ANILCA.
She remarked when looking at a map of the state and the
establishment of the CSUs, a person could hardly get across the
state without crossing a CSU; Congress debated this extensively
and tried to determine whether to set aside corridors across
CSUs for future transportation needs and utilities. Congress
ended up establishing a unique application process for TUS
rights of way across the CSUs including wilderness areas. The
application process is unique and does not exist anywhere in the
United States in CSUs.
She noted there have been a lot of myths about the TUS process
people even in the Federal Highway Administration have thought
TUS process does not actually work, which is just simply not
true. She noted ANILCA training sessions dedicate about two
hours on TUS access provisions and how they work.
She explained there are two decision processes under the TUS
section, one in which an agency has authority to grant rights of
way and then the decision process for those agencies who do not
have authority to grant right of way or it is within wilderness.
There is specific criteria and processes for how to handle the
applications, how NEPA fits into it, the agency standards, how
they fit into the approval or disapproval process, and the
determination of a lead agency. There is an appeal process for
disapproved TUS applications to the President and Congress.
MS. CUNNING said the TUS process was important because that
would be the only way in the future to get between communities,
get utilities and water line corridors between communities, or
to get to existing infrastructure.
She noted the other provision listed in the slide, Section 1109,
is a section that basically said anyone who had a valid existing
right prior to the passage of ANILCA, the Act does not disturb
that valid existing right, it continues.
4:16:31 PM
She said two provisions within Title XI were part of ANILCA's
balancing act, Section 1110(a), and Section 1110(b). Section
1110(a) permits the use of snow machines, motor boats,
airplanes, and nonmotorized surface transportation for
traditional activities. The regulations adopted in 1986 to
implement the section are very true to the provisions of Section
1110(a). There are 43 CFR Part 36 regulations, and they have a
lot of great language in the preamble and responsive comments.
She suggested anyone who is dealing with access issues on these
areas to either look those regulations up and find the response
to comments, 43 CFR Part 36, or contact one of the ANILCA
trainers for additional information.
She stated essentially what Congress said in Title XI is the
federal lands are open to the specified activities and methods
of access until closure under a set of criteria with a process
that involves hearings and finding of damage. Also, including
locals was very important in for decision making.
She said Section 1110(b), the other piece to special access, is
unique. The section does not occur anywhere else, its language
guarantees the State and private land owners adequate and
feasible access for economic other purposes.
4:18:21 PM
She referenced the slide, Title XII - Federal-State Cooperation.
She said Title XII is a unique title in federal lands
legislation in that it steps up an expectation of federal-State
cooperation. Based on the recommendations of the Joint Federal
State Land Use Planning Commission, ANILCA established an Alaska
Land Use Councilsunsetted after 20 years, but renewal is
possible.
MS. CUNNING explained Title XIII is a catchall of many
administrative provisions. The title authorizes the federal
agencies to acquire land within the CSUs, and grandfathered
cabins and other facilities of occupancy on the CSUs, BLM areas,
and USFS lands. In the 1970s, delegations in Washington, DC read
the popular book, "Coming into the Country," and they were keen
on the protection of traditional lifestyles that involved using
structures so that people could continue their way of life on
federal lands. Title XIII has many unique provisions that
includes important thingsespecially in this day and ageto
allow navigation aids and establishing other facilities on CSUs.
Title XIII also rescinded 1978 to 1980 Public Land Ordersthese
were the two withdrawals and monuments.
She referenced the slide, Title XV - National Need Mineral
Activity Recommendation Process. She noted the federal
government has never applied Title XV, but because people were
concerned the size of the units might make mining rare elements
difficult, the title's process allows the President to open an
area for rare minerals. However, the President cannot use the
title in the Arctic Refuge or in the national park units, but it
can be in other CSUs. There is a whole process laid out for
expediting congressional review and rulemaking to meet the need
for mining rare elements.
4:21:01 PM
She explained the slide, ANILCA's Organization, the fourth
section that addresses amendments to ANCSA and the Alaska
Statehood ActTitle IX and Title XIV. The amendments in the
fourth section were almost half of ANILCA. She pointed out that
at the time, statehood was recentjust over a decadeand ANCSA
enacted nine years earlier. There were already parts of
implementation about the Alaska Statehood Act and ANCSA that
needed fixes and those are in those sections of ANILCA.
She referenced the slide, Title IX - Implementation of Alaska
Native Claims Settlement Act (ANCSA) and Alaska Statehood Act.
She explained there are many amendments in Title IX. One of the
important things for the State in Title IX was that once U.S.
Department of Interior had approved transfer under the tentative
approval (TA) provisionstransfer of land for the State under
the State selection processthe federal government treated the
State as the landowner. She noted up to that time, federal
agencies continued to manage the TA lands transfers and
conflicts arose and Title IX straightened that out.
4:22:23 PM
MS. CUNNING addressed the slide, Title XIV - Amendments to ANCSA
and related provisions37 Sections amend ANCSA. She said one of
the key things was fire protection, a great concern to the ANCSA
Corporations. There is a provision that the federal wildland
fire protection continues for ANCSA lands.
She noted there is a corollary to Title IX in which the interim
conveyed lands to the Native Corporations where essentially
treated the same as if they had ownership. Some of the lands
that had been interim conveyed, the Native Corporations wanted
to do things with them, but the banks would not loan money on
those lands until the federal government surveyed the land. This
provision of ANILCA established that once they get into the
interim conveyance processes and only waiting for the survey,
the Native Corporations could treat the land as though they hold
title.
She addressed the slide, Justice Kagan in Sturgeon II described
ANILCA' compromises. She noted Justice Kagan confirmed ANILCA's
compromises where she said:
ANILCA sought to 'balance' two goals, often thought
conflicting...So if, as you continue reading, you see
some tension within the statute, you are not mistaken:
It arises from Congress's twofold ambitions.
She explained that was to set aside the large areas for
protection as well as to protect these Alaskan uses.
4:24:17 PM
She referenced the slide, Three Acts Interrelated, and noted her
ANILCA overview emphasized several times that the three Acts
Alaska Statehood Act, ANCSA, and ANILCAare very interwoven and
"tier off" each other. The State's entitlement with the Alaska
Statehood Act was over 100 million acres, and ANCSA with an
entitlement of over 44 million acreswhich will actually be over
46 million acres when completed.
She noted at times there are different numbers shown for CSU
acreage, anywhere from 103 [million acres] to 106 [million
acres], and a lot of that is based on the technology for
calculating acreage has changed over the years. However, the
implementation of the three Acts is still very interconnected.
MS. CUNNING said she has completed the introduction of ANILCA
and will move into some key provisions and exhibit how ANILCA
stacks up against the governor and legislature's seven consensus
points.
4:25:19 PM
She referenced the slides, 1979 Governor and State Legislature
Adopted Seven Consensus Point, "The Alaska Position;" and the
slide, ANILCA Addresses Alaska Interests. She noted the slides
for addressing Alaska interests have bullet points that list
what people believe ANILCA resolved that were among those things
that the governor and legislature were lobbying for.
She detailed ANILCA retained all the ANCSA land entitlements
already selected inside the ANILCA units, and approved State
selections that were outside of the ANILCA units. However, the
State gave up some selections that were inside some of the
units, but ANILCA adjusted the boundaries for high resource
areas necessary for development that previous bills excluded.
She said there are special provisions in ANILCA for mining,
recognizing the continuous of traditional activities on federal
lands, and authorizing the agencies to conduct land exchanges
and boundary adjustmentsthe "no more" large withdrawalswithout
congressional approval was one of the big ones.
She referenced the slide, Summary of "No More" clause(s). She
explained the ANILCA administrative prohibitions includes the
executive branch cannot withdraw more than 5,000 acres unless
Congress passes a resolution within one year of their wanting to
not nominate it. Also, no further studies of federal lands for
the single purpose of establishing new conservation designations
without congressional authorization.
She reiterated Title VII is the wilderness title that there be
no further statewide roadless area reviews for national forest
wilderness designation.
4:27:29 PM
She said the slide, ANILCA addresses Alaska interests
(continued), references the new process for future
transportation utility corridors, provided for the Tongass
timber harvest, and included the 14 new wilderness areas and
monuments as part of the balancing act. ANILCA provided for
local hirethis is one of the most amended sections of ANILCA
and guarantees access to inholdings.
MS. CUNNING detailed the slide, ANILCA Sections 1110(b), noting
the slide shows the two sections of ANILCA that guarantee access
to inholdings. Section 1110(b), which is for the CSUs, and
Section 1323, which is USFS and BLM lands. There are over 2
million acres of inholdings within the park system and over 17
million acres of inholdings within the wildlife refuge units
this access to inholdings is incredibly important.
She said the slide, ANILCA Section 1110(b) (continued), is an
example of right of way on the Kenai Refuge to provide access
for the [Cook Inlet Region, Inc.] (CIRI) to its subsurface
estate. She noted inholdings are both surface and subsurface and
her expectation is over the next few decades there are going to
be many more applications to the agencies for access to
subsurface estates in refuges.
She detailed the third slide in the series, [ANILCA Section
1110(b)(continued)], refences the interests that are
fundamentally important to the State in retaining its State
management of fish, wildlife, and water.
4:29:23 PM
SENATOR VON IMHOF noted she made a comment regarding CIRI
looking for right away access and the expectation there will be
more requests for access by Native Corporations in the future.
She asked her to expand on her comment regarding more requests
and her thoughts on how the Biden Administration is going to
respond or are the requests a state issue.
MS. CUNNING replied, the request for access is in statute
Section 1110(b)Congress guaranteed access to the non-federal
lands, both surface and subsurface, for their current and future
uses for their economic future. Section 1110(b) was an important
part of the balancing act in ANILCA that both the State and the
Native Corporations lobbied hard for because it was of no use to
the Native Corporations or to the State to own land that it
could not develop or use.
She detailed Congress set up the guarantee of access, but there
are rules for approval. The request must have the most minimum
possible impact on CSUs. She noted there are going to be more
applications in the future where many landownersparticularly
subsurface estate ownerswho do not know what resources they
own, just like with oil and gas, and mining. For example,
needing an access road to access a subsurface estate that
minimizes surface impact in a refuge, but [Section 1110(b)]
guarantees lands access.
4:31:27 PM
SENATOR STEVENS noted she said, "It is sort of guaranteed." He
asked her what the application process is for approval.
MS. CUNNING explained a case that involves development is
different from someone who is just trying to get an access to
their cabin. The process is entirely different depending upon
the magnitude of the inholdings' needs. Cases like CIRI involves
a special form, applications, a lot of meetings, and assessments
on alternatives worked out between the party and the agency. The
intent is to minimize the impact to the unit while still
providing the guarantee of access. However, there is no access
guarantee if there is an adequate and feasible access some other
way. Just because the person wants to cross a CSU does not mean
they are going to get that permission if there is another
economically feasible alternative.
4:33:09 PM
SENATOR STEVENS said in general, if an organization owns the
land that could be profitable to mining or whatever, those
applications will receive approval.
MS. CUNNING answered yes.
She noted the third slide that continues to address "Alaska
interests," the State retains management of fish, wildlife, and
water. That was a huge impetus for statehood to get management
of fish and wildlife out of the hands of the Seattle processors
and the Washington, DC bureaucrats; this was a major lobbying
effort by the State and the Alaska Native Brotherhood in
Southeast Alaska to get statehood and have State management of
fish and wildlife.
She said given statehood in 1959, there was a great deal of
concern under ANILCA that when it passed the State does not lose
any of its authorities for management of fish and wildlife.
There is a section in ANILCA, Section 1314, which confirms that
nothing in ANILCA affects the responsibility and authority of
the State for the management of fish and wildlife except as
specifically provided in Title XIII. Title XIII authorizes
federal regulation of harvest to assure the subsistence
preference for the rural residents on federal land.
4:34:43 PM
SENATOR KIEHL noted he has attended some of his Alaska Native
Brotherhood Camp 70 meetings where there is a lot of
"grumpiness" with the State over access to subsistence
resources. He noted she previously flagged the Title VIII
federal authority to regulate.
He asked her if ANILCA sets up a structure for guaranteeing
State management while federal management for subsistence
exists.
MS. CUNNING answered there is a misunderstanding about what the
term "management" means. Management under the Alaska State
Constitution is assuring the sustainability of fish and wildlife
populations and that authority is more than just allocating
harvests, it is a significant responsibility to assure the
health and sustainability of those populations, even in cases
where Congress has diminished. However, Congress can and does
diminish state authorities for all 50 states. For example, the
Marine Mammal Protection Act took away the State's authority to
allocate harvest of marine mammals, but the State still has a
responsibility to assure the sustainability and that is why they
still monitor marine mammal populations and work closely with
the federal agencies that do allocate harvests to protect
populations as they go up and down.
She said the same is true with the federal subsistence program
via the Office of Subsistence Management. She noted during her
ANILCA trainings that she spends an hour explaining the
relationship between the authority under Title VIII for
regulation for the subsistence preference on federal lands, and
the State's authorities for management of fish and wildlife; it
is complicated and sometimes tested when people do not
understand the terms of the statute, there is a piece in the
ANILCA training that is specific to it that lays out the
differences between the State and federal authorityit is a lot
of misunderstanding and a lot of myths.
4:37:23 PM
She referenced the slide, Presentation Outline, which shows all
the things hoped for from ANILCA. U.S. Senator Stevens saw that
after ANILCA passed, Alaska got about 85 percent of what it
wanted in ANILCA, and he intended to go back and get the rest
but the Magnuson-Stevens Act may have distracted him.
She noted the slide, Select Major Amendments to ANILCA. She said
40 years has passed since the passage of ANILCA, but Congress
has amended ANILCA many times. She said, "Do not believe the
myth that people tell you that ANILCA cannot be amended because
it has been." She added she has a compilation of ANILCA
amendments for trainings that is 53 pages longs.
4:38:12 PM
MS. CUNNING said regarding a few of the major amendments to
ANILCA, after passage in 1980, there were 11 laws that amended
ANILCA between 1981-1988. Probably the first major amendment
occurred in 1988often referred to as Alaska's Submerged Lands
Actthis section in the amendment deleted all of Section 901 of
ANILCAthis is in the amendments to ANCSA's section of ANILCA.
She noted the amendment was important because the BLM
calculations for submerged lands affected the acreage
calculation for Native Corporations entitlements. If BLM
included land under water ways that turned out to be navigable
and thus State owned laterafter receiving the sign off for
their land entitlementthey would not be able to come back and
replace those lost lands elsewhere. This section of ANILCA
clarifies how they do the acreage calculations to leave the
submerged lands out of those acreage calculations where there is
a major waterway, and there are a few other changes in there
too.
She stated the most significant amendment in the eyes of people
who had been involved in ANILCA's passage was the Tongass Timber
Reform Act in 1996this is 10 years after passage of ANILCA.
Congress removed the provision for the 4.5 billion board feet
per-decade supply of timber in Section 705 and created 12 new
[land use designation] (LUDs); these are special management
areas under the National Forest Management Act. The amendment
also created five additional wilderness areas, modified the
long-term contracts, and created stream riparian buffers. The
amendment was huge due to its undoing of the balancing act
between the wilderness areas and the timber harvest industry.
4:40:40 PM
She said in 2014, another major amendment was the Sealaska Land
Entitlement, which completed the Sealaska Corporation's
entitlement. The amendment created an additional eight LUDs in
the Tongass and made some other changes.
She noted in 2017, Congress amended three sections of ANILCA via
the Tax Cuts and Jobs Act; this is the Arctic Refuge changes
which requires the Secretary to conduct 2 lease sales in 10
years in the non-wilderness Coastal Plain and authorizes
development of less than 2,000 acres for that.
SENATOR BISHOP asked her who led the charge on the repeal of the
Tongass Timber Reform Act.
MS. CUNNING answered she did not know but will get back to the
senator with an answer.
SENATOR STEVENS asked her if there is a conflict with the "no
more" land provision within the Tongass Timber Reform Act.
MS. CUNNING replied, "What Congress giveth, Congress can taketh
away." Congress said no more administrative withdrawals, but
Congress can make its own withdrawals.
SENATOR VON IMHOF remarked, "You can say that about government
in general, government giveth and government taketh away."
4:42:20 PM
MS. CUNNING explained the provisions are congressional. Congress
passed ANILCA but then came along 10 years later and changed the
terms, and Congress will continue to do that.
SENATOR STEVENS asked her to confirm that the Tongass Timber
Reform Act did change the "no more" land set aside.
MS. CUNNING explained the negotiated "no more" provisions did
the balancing act in ANILCA. However, the "no more" provisions
of ANILCA are still in effect and not modified, but the [Tongass
Timber Reform Act] changed the balance in terms of what would be
wilderness and what would be in harvest areas on the Tongass.
She addressed the slides, "What is involved in implementation of
ANILCA?" and the "Alaska Land Use Council." She said Jay
Hammondhaving been involved through the Federal-State Land
Planning Commission processes and the lobbying into ANILCAwas
very supportive of cooperative management. He believed if the
leadership in Alaskafederal and State agencies and the Native
Corporationssat down together they could resolve a lot of these
issues eye to eye across the table.
She said the ANCSA Corporations were involvednoting she served
as a staff committee member to the Alaska Land Use Councilthis
council was very effective in dealing with issues that came up,
tried to keep the issues out of court, worked on management
plans and regulations, and attempted to ensure things were
consistent with the intent of ANILCA.
MS. CUNNING noted a couple of years ago, Senator Murkowski
proposed legislation to reauthorize the Alaska Land Use Council.
The people who are all part of the Alaska Land Use Council at
the time wanted to see it reauthorized, but the legislation
never made it in. Senator Murkowski proposed some legislation a
few years ago, but there has not been a groundswell to get the
council reauthorized.
She referenced the slide, Public Involvement in ANILCA
Implementation. She noted at the time ANILCA passed, there was a
Land Use Advisors Committee set up as a forum to provide public
input into the Land Use Council's recommendations and decisions
related to federal actionsit sunsetted along with the council.
The ANCSA Corporations had an organization of their land
managers who worked alongside the State in dealing with lands
decisions, shared information with the Corporations, and served
as staff to the Lands Council Staff Committee.
4:45:34 PM
She addressed the slide, Citizens' Advisory Commission on
Federal Areas (CACFA)the third organization. The legislature
created CACFA as an avenue for the public to deal with red tape
to understand how management plans work to help get help getting
their cabin permits, etcetera. The legislature reauthorized
CACFA in 2014 with a sunset in June 2021. CACFA has not been
active because of budget cuts started in 2015 and 2016, but the
legislature could reauthorize the commission.
She noted CACFA was a very effective organization that worked
directly with federal agency leaders and with the Alaska
congressional delegation. For example, when the Federal Office
of Personnel Management decided local hire was out of date and
was not going to be a provision in Alaska anymore, they were
able to go back and get an amendment to ANILCA that made it
clear it still provided local hire provisions.
She addressed the slide, State Agencies' Involved in ANILCA
Implementation. She said in 1981 the legislature funded a
special budget for involvement in ANILCA implementation.
Governor Hammond established a structure to be involved with the
Alaska Land Use Council and retained his Washington, DC office,
and setup an ANILCA team to coordinate State agencies'
involvement in management plans. The slide provides a web link
to that officewhich is still in existence today. The website
has a searchable copy of ANILCA, a compilation of its
amendments, and access to all the State's correspondence since
2000 to provide a history of the State's involvement.
4:47:12 PM
MS. CUNNING referenced the slide, State ANILCA Program
Coordination location of statewide coordination function. She
said the diagram on the slide explains how the ANILCA program
coordination worked, how it was set up, and how it has continued
to work. Governor Hammond was not big on creating new government
and assigned the program within the line agencies where a future
administration could not chop the program.
She detailed the Alaska Department of Fish and Game (ADF&G)
assumed the program coordination function in 1981, noting she
was the first coordinator. The program coordination function
moved to Governor Sheffield's Division of Governmental
Coordination in 1984. Since 2003after Governor Murkowski moved
itprogram coordination has been in the [Office of Project
Management and Permitting] (OPMP), but its effectiveness is
based on the cooperation of all the State agencies participating
together in coordinating unified responses for consistency with
ANILCA and requires an understanding of not only ANILCA but also
the federal land laws and regulations.
She noted the slide, Federal land use plans and regulations
ANILCA requires ongoing consultation. She said the first thing
everybody worked on was management plans and the revisions that
came along.
She referenced the slide, StatusANILCA's Implementation 40
years later. She said there is not the same degree of
cooperation and consultation that there used to be in the
revisionsinformation reported to her, noting her retirement of
11 years.
She explained the slide, The Arctic Refugean illustrated guide
to the evolution of land management planning, shows how the
plans have evolved over time. The slide illustrates the Arctic
Refuge plans from 1971, 1988, and 2015making it very difficult
for the public, the State, the Native Corporations, and the
stakeholders to keep up with things.
4:48:58 PM
She referenced the slide: Example: "No more" clauses, noting the
slide provides an example of what happens over time. Even though
Congress intended there be no more administrative withdrawals,
there are what people regard as de facto CSUs created when the
agencies make special planning designations to manage areas as
though they are designated wilderness when they are not, and to
limit activities and permits for commercial services, etcetera.
Based on those values, it has increasingly created some problems
for the public and the commercial operators.
4:49:37 PM
MS. CUNNING addressed the slide, "Cabins, Temporary Facilities,
and Other Structures." She said the chart on the slide from the
Citizens Advisory Commission shows how the agencies are
interpreting the cabin provision of ANILCA differently from
agency to agency. When brought to the Alaska congressional
delegation's attention, the agencies agreed to try to work
together to come up with a better guidance consistent with
ANILCA in implementation of the cabin policies.
She noted the slide, Challenges of ANILCA Implementation, and
its difficulty due to a loss of institutional memory and
understanding of ANILCAand a collective knowledge among
Alaskans in general. Also, there was the loss of the Alaska Land
Use Councilstill felt todayand the loss of key negotiators
that knew what the deal was that the State struck with Congress.
Increased direction comes out of Washington, DC that does not
necessarily reflect an understanding of ANILCA, and decreased
information on what the traditional uses where in 1980 that
Congress was intending to protect.
She said the final slide, Keeping the Promises in the
Compromises, quotes Justice Kagan from the Sturgeon case as
follows:
This Act provides sufficient protection for the
national interestand at the same time provides
adequate opportunity for the satisfaction of the
economic and social needs of the State of Alaska and
its people.
She noted Justice Kagan's quote was right out of ANILCA but
keeping the promises in the compromises that Congress passed in
ANILCA is up to everyone.
4:51:41 PM
SENATOR STEVENS agreed with her and said he wished more Alaskans
understood [what Congress told Alaska via ANILCA.] He noted the
"no more land" set aside and said the legislature insisting on
the "no more" clause is remarkable, noting he wonders what would
have happened without the clause. He asked her if the "no more"
clause has been relatively successful, noting the clause has not
been totally successful.
MS. CUNNING replied her opinion is the language in ANILCA has
prevented additional large withdrawals out of the general BLM
and USFS lands.
SENATOR STEVENS remarked, "Kudos to the Alaska Legislature."
MS. CUNNING pointed out the statutes says that the
administration cannot make any more of those large withdrawals,
more than 5,000 acres.
4:53:08 PM
CHAIR REVAK thanked Ms. Cunning for her ANILCA overview and the
importance of understanding what happened and where Alaska
currently is at. He said he imagines the legislature is going to
have to deal with some issues related to ANILCA. He stated she
"hit the nail on the head" when she said that we were losing a
lot of this memory related to the deals made for Alaska's lands.
He noted his intention for the slide show is to provide a
reference to committee members to quickly find provisions in
ANILCA when dealing with issues related to Alaska's lands. Also,
Ms. Cunning said that she would be available for follow up and
answer questions.
4:54:43 PM
There being no further business to come before the committee,
Chair Revak adjourned the Senate Resources Standing Committee
meeting at 4:54 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| SRES ANILCA Program CACFA 2-5-21.pdf |
SRES 2/8/2021 3:30:00 PM |
|
| SRES ANILCA part I 2-8-21.pdf |
SRES 2/8/2021 3:30:00 PM |
ANILCA Overview Part 1 |
| SRES ANILCA part II 2-8-21.pdf |
SRES 2/8/2021 3:30:00 PM |
ANILCA Overview part 2 |