Legislature(1999 - 2000)
02/03/1999 03:05 PM Senate RES
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* first hearing in first committee of referral
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SJR 5-SNOWMACHINE USE IN DENALI NAT'L PARK
CHAIRMAN HALFORD announced SJR 5 to be up for consideration.
Number 470
MR. BRETT HUBER, Senate Resources Committee Aide, said SJR 5 is
designed to send a clear message to the Department of Interior, the
National Park Service, and our congressional delegation that the
Alaska State Legislature opposes the closure of Denali National
Park and Preserve to snowmachine access outside of the process set
forward by law. An equally important message carried by this
resolution is a message to Alaskans that the Legislature is in
support of their continued use of their public lands.
MR. STAN LEAPHART, Executive Director, Citizens Advisory Commission
on Federal Areas, supported SJR 5. As a brief background, he
explained that Mt. McKinley National Park was created in 1917 and
sometime in the mid-to-early 1970's the Park was closed to
snowmachine use. However, in 1980 ANILCA expanded the Park from
its former 2 million acres to over 6 million acres opening the Park
and all the other parks that were created to snowmachine use (as
well as to the use of motor boats, airplanes, and other non-
motorized surface transportation methods for traditional
activities). The Act, itself, does not define "traditional
activities."
In June 1981, the National Park Service adopted its first set of
permanent regulations to implement ANILCA making it very clear that
the section on snowmachine use applied to all park units in Alaska,
including the pre-1980 park areas. That was confirmed when in 1983
the Park Service proposed to close some portions of Denali National
Park to snowmachine use. They weren't proposing as comprehensive
a closure as they are today and it was to protect key wildlife
concentration areas.
MR. LEAPHART explained that at the time it was clear that the
Agency recognized that ANILCA had opened the Park to snowmachine
use. Those regulations were never finalized.
In 1986, the Department of Interior adopted regulations
implementing Title 11 of ANILCA and the section we're concerned
with today is the section 11.10(a). The Park Service in 1981 had
adopted regulations implementing that section in 1981. The 1986
Department of Interior regulations replaced them. Comments from
the public suggest that the authorization to use snowmachines did
not apply to the pre-1980 parks and monuments. Department of
Interior responded that it was their determination that their
interpretation that there was no exception for the pre-ANILCA
areas.
In 1990, they saw the first written evidence of closing the Park to
snowmachines in the superintendent's compendium for Denali National
Park. This is a tool used by the Park Service to list areas that
may be closed to camping, boating, or any number of things. His
Commission was most interested in the part that closed the Park to
snowmachiners.
MR. LEAPHART said there were other compendiums for other parks and
they tried to get the Park Service to clean up some of the
procedural flaws and have had very little movement other than the
standardization of the form that they use to write the compendia.
One of the major points they raised with the Park Service was their
failure to follow the process that's outlined in ANILCA which
involves making findings and determinations that use of
snowmachines in that particular park area would be detrimental to
park resources before they could actually do a closure. Alaskan
park units and wildlife refuges are open to these sorts of
activities unless they are specifically closed through regulatory
action. This is very different from the lower-48 units where these
kinds of activity are prohibited unless they are authorized through
regulatory actions.
Even though they brought this to the attention of the Park Service
whose own attorneys advised them that they would not prosecute any
citations, the Park Service continued to discourage public use by
posting signs along the highway, putting fliers on windshield and
by contacts with park rangers.
In early 1997, the Park superintendent and head ranger formally
discussed shutting down snowmachine use. They held that the ANILCA
authorizations did not apply to the old part of the Park, that
snowmachine use was not traditional and could not, therefore, be
allowed and they were making no provision to do studies or findings
to support the closure. This is about the time that snowmachine
groups started getting involved.
In November 1998, the Park Service announced they were going to
temporarily close the old Park to snowmachine use while they
considered additional permanent closures for the entire Park. What
took him most by surprise was their efforts to justify the proposal
with no finding of resource damage and no documentation of impacts
- none of the procedural requirements outlined in ANILCA. It was
based on a collection of misinformation and half-truths.
MR. LEAPHART said he had spoken this morning with Congressman
Young's staff for the Resources Committee and they were provided a
draft press release by the National Park Service stating that the
closures would be effective tomorrow and they had made a finding
which he found was a compilation of studies that were done in other
park areas. The findings were based on the potential for impacts
rather than actual impacts for Denali National Park.
MS. TINA CUNNING, ANILCA Program Coordinator, explained that in the
final rules of management of park units passed in June 17, 1981 it
states "perfected snowmachine users should note that the
legislative history of Section 11.10(a) defines a traditional
activity in terms of its generally occurring in a park area prior
to its designation." It goes on to cite both the House and Senate
Committee reports that adopt that definition.
An activity that is generally occurring in the area includes
perhaps hunting, fishing, and trapping which is of foremost
interest to her agency, but also wildlife viewing and some general
recreation. It was an essential part of the compromise agreement
under ANILCA that the traditional lifestyle and activities of
Alaskan residents be protected in exchange for the establishment of
TAPE 99-7, SIDE B
Number 590
104 million acres of conservation system units in addition to the
already existing conservation system units in Alaska which were
redesignated and expanded under ANILCA. Therefore, these
definitions apply to all units. They went through a grueling
process with all the interior agencies and the Forest Service
towards the adoption of the access regulations to implement Title
11 of ANILCA between 1982 and the final rules in 1986. The Alaska
Land Use Council, the work groups representing all the State
agencies, the native corporations, AFN, and the federal agencies
went through what was intended in all the pieces of ANILCA relating
to access. When they adopted the final rule making in September 4,
1986 in the preamble the Department of Interior says, "Other
comments suggest that the provisions of this section should not
apply to parks and monuments which predated ANILCA." The argument
is made that Congress did not intend to open the pre-ANILCA area to
the uses described in Section 11.10(a) since these pre-ANILCA areas
had been closed to such uses prior to the enactment of ANILCA.
Interior does not find any statutory support for this position
since Section 11.10(a) provides no exceptions to the pre-ANILCA
areas. Accordingly, no exception for pre-ANILCA areas is provided
for in these regulations.
The regulations, then, go on in Section 13.30 to describe the very
specific closure process including a finding of detriment to
resources, and a closure period. A temporary closure cannot exceed
12 months. Anything beyond that is a permanent closure. If there
is a permanent closure, there must be a formal process and a
finding made to reopen it. It's going to be very important to
watch the language in the rule being published tomorrow. It
states, "...a temporary closure of one to three years." So there
is already a problem.
Number 558
The important thing for ADF&G is the continuation of access for
hunting, fishing, and trapping activities. Many millions of acres
in Alaska were expanded, designated, or reestablished as
conservation system use under ANILCA that would come under the
process the Park Service developed here. There would be problems
with other units trying to follow suit.
MS. CUNNING explained there was a similar situation in a Kodiak
Refuge where the Fish and Wildlife Service manager was interested
in closing snowmachine use. In that case, with much encouragement,
he was able to work with the local snowmachine group to come up
with an agreement of where they would and would not travel so as
not to impact denning bears. They are continuing to have their
snowmachine activities without detriment to the resources in that
area.
A precedent of making a finding that an activity is traditional or
not or that there is resource damage without having had studies
could set a precedent for Kodiak, Kenai, the Alaska Peninsula, the
Yukon Delta Refuge, and other parks and refuges across the State.
SENATOR TAYLOR asked other than our passage of this resolution,
what other action might the legislature take to cause the federal
government to abide by the laws they, themselves, made.
MS. CUNNING said she couldn't advise on that, but she knows that
some snowmachine groups have been in communication regarding filing
litigation. Because of the impacts she foresees coming down the
line for many Alaskan residents we would want to engage in
conversation with the administration policy makers to consider the
possibility of joining that.
SENATOR TAYLOR asked if the administration is contemplating
litigation to defend the rights of snowmachiners.
MR. KEVIN HITE, Vice President, Alaska State Snowmobile
Association, responded that he had sent two letters to the
administration requesting input and help on the issue as they see
it and to join their lawsuit which seems inevitable. They haven't
had any response so far.
MR. HITE said his Association supports the resolution 100 percent.
MR. JOE GAUNA, Anchorage Snowmobile Club, said he works with Mr.
Hite on this issue. He said they have never had one response from
the National Park Service. The Ccurry Ridge Riders from "up North"
asked him to send their support for the resolution as did the owner
of Ardor Art Recreation Distributors.
SENATOR TAYLOR said he is sincere in asking his question. The
legislature is standing "begging" a federal official who doesn't
choose to listen to us anyhow to please do what the law says.
Surely there must be some other alternative and if litigation is
the only way to go, we should be supporting these people. If the
administration doesn't do it, we should fund it through legislative
council.
Number 476
SENATOR LINCOLN asked Mr. Leaphart how many people serve on the
Citizens Advisory Commission and was this a Board or Commission
action.
MR. LEAPHART answered, "Essentially, yes." There are 16 members,
one is vacant right now.
MR. MIKE EASTHAM, Snomad Snowmachine Club, supported SJR 5.
MR. BILL EASTHAM, President, Mat-Su Motormushers, strongly
supported SJR 5.
MR. ROSS COEN said that he is speaking now as a staff member of the
Northern Alaska Environmental Center which opposes SJR 5. He
understands that with the passage of ANILCA that access was allowed
in the park for traditional uses. This was so that land owners
could reach home sights and provide access for subsistence uses.
He questioned how recreational snowmachining could be qualified as
a traditional use since it didn't exist in the Park before 1980.
MR. COEN stated that the Park Service received 1,392 comments
(nation-wide) from individuals during the comment process.
However, 1,220 or 87 percent of them supported the Park Service's
decision to close the Park to snowmachining.
MR. KEVIN HITE responded that the public process in Fairbanks had
over 400 positive comments and 700 opposing the actions. He said
this issue is obviously going to be litigated and strongly
encouraged the legislature's participation in a lawsuit. The
Alaska State Snowmobile Association has retained Mr. Bill Horn, one
of the initial authors of ANILCA, as legal counsel and he has very
eloquently countered every Park Service false finding.
Number 376
SENATOR LINCOLN noted that the comments in their packets were from
Anchorage and Fairbanks and the area they are discussing is in the
Denali Borough. She called the Denali Borough to see what their
position is on the resolution and they hadn't taken a position,
because they were unaware of it. She was concerned that the
resolution, dated January 27, 1999 is just referred to Resources
and goes to the full body for a vote. She didn't want to exclude
anyone from testifying, especially those people who reside in that
area and have used it traditionally. This is why she will vote "no
recommendation."
CHAIRMAN HALFORD said he had a lot of long-term friends in that
area and all of them were opposed to the D2 lands bill in 1980.
SENATOR LINCOLN noted it was written January 27 and there are only
support letters and asked if the information had been put out to
the general public. She asked if there were any letters that were
non-supportive.
MR. HUBER responded that they provided state-wide notice and met
the notice requirements for today's hearing. They also did a press
release on the introduction of the resolution and in addition
received other E-mail messages in support of the bill today that
were dropped off to her staff probably an hour previous to today's'
meeting. They had not received any messages, E-mails, POMs,
letters, or faxes in opposition to the resolution.
Number 280
SENATOR TAYLOR moved to pass SJR 5 from committee with individual
recommendations. There were no objections and it was so ordered.
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