Legislature(1999 - 2000)

02/03/1999 03:05 PM Senate RES

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
           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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