CHAPTER 3 THE STATE OF ALASKA AS LANDOWNER

• Jurisdiction: United States

Alaska Mineral Development
(Sep 1978)
CHAPTER 3
THE STATE OF ALASKA AS LANDOWNER
Thomas E. Meacham
Assistant Attorney General
State of Alaska

Note: The observations presented in this paper are those of the writer, and do not necessarily represent the official position of the State of Alaska.

I. INTRODUCTION.

It is obvious that Alaska is unique among the western public land states in the abundance of its state-owned land — a quantity which, when finally conveyed from the Federal Government to the State, will exceed in acreage the total land area of California, the second largest western state. This abundance is the result of congressional doubts in 1958 as to the economic viability of the fledging state, a concern which was manifested in the Alaska Statehood Act by a quantity land grant, replacing the usual formula of in-place federal land grants to newly-admitted states, such as the grant of designated school sections,¹ and small quantity grants of land for internal improvements.² The proposal extended to Alaska by Congress consisted of the following: (1) 102,550,000 acres of "vacant, unappropriated, and unreserved" lands from the federal public domain; (2) 400,000 acres of "vacant, unappropriated" federal lands from the Tongass and Chugach National Forests in Alaska, for community expansion, development and recreation purposes; (3) 400,000 acres from other public lands in Alaska which are "vacant, unappropriated, and unreserved", for the purposes of community expansion, recreation and developments. All land grants were to be selected by the State within 25 years after its admission to the Union.³ Alaska accepted the federal offer, and on January 3, 1959 embarked on the sometimes-painful process of acquiring its land patrimony from the Federal Government and putting it to use for the benefit of the State and its citizens.

It should be emphasized that the state land grants mentioned above, while they are the most significant in terms of quantity, are not the only means by which the State has been granted federal lands or the right to obtain such lands in the future. Prior to statehood several federal acts reserved for the Territory a considerable amount of land for the support of public schools, the University of Alaska, and the Territory's mental health program. The school reservation involved the in-place

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grant of sections 16 and 36 in each surveyed township;⁴ this reservation was transformed into a grant of the previously-reserved lands upon the passage of the Statehood Act, and the act reserving such sections was repealed by the Statehood Act.⁵ The total quantity of land reserved by the in-place school land grant is the subject of speculation, due to problems of ascertaining indemnity entitlement for school sections already occupied or reserved at the time of survey, but a 1957 report indicated that the reservation had attached at that time to 105,797 acres, with an indemnity entitlement (if exercised) to an additional 70,000 acres. This is an insignificant quantity of school lands when compared to the in-place school land grants of from 2 to 8 million acres in other western states, but is more than offset by the generous Statehood Act quantity grant described earlier. Due to problems in quantifying and fulfilling Alaska's indemnity entitlement to school lands, a provision has been accepted in federal legislation this year which would permit the State to exercise selection rights to 75,000 acres of Federal land in much the same manner as the Statehood Act grants, in full settlement of all unexercised school land indemnity rights.⁶

The grant of university lands to the Territory originally occurred through the act reserving in-place school sections, with sections 33 in the Tanana Valley designated for university support; this was broadened in 1929 by a quantity grant of 100,000 acres for university purposes.⁷ This grant has been virtually fulfilled and patented to the State after statehood. The "mental health" land grant was made to the Territory by the Mental Health Enabling Act of 1956, and consisted of 1,000,000,000 acres of "vacant, unappropriated, and unreserved" federal public lands, to be selected by the Territory within ten years from the date of the grant.⁸ As with the school and university grants, the mental health grant was confirmed and transferred to the State upon statehood, though the time for selection under that grant had not yet expired. While selections were filed by the State under the mental health grant which exceeded the one-million-acre grant, subsequent adjudications and the Alaska Native Claims Settlement Act, 43 U.S.C. Sec. 1601 et. seq., may reduce the quantity actually patented to some amount less than the grant. If this occurs, new congressional authority may be required to fulfill the grant.

Other small grants of land, including specific sites of former federal installations, were made to the State upon statehood and afterward; these are neither large enough nor strategically located so as to merit discussion here.⁹ Of the grants to the State, the 102.5-million-acre "section 6(b) grant" is of the most interest, in part due to its size and partly due to the fact that considerable selections under it remain to be

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made, or approved to the State by the United States. The "Section 6(a) community grant" selections are also unfulfilled, though the State in the past year filed selections on more than half of its National Forest entitlement.

As a footnote, it should be mentioned that the 1978 Alaska Legislature abolished all management distinctions between school and mental health "trust" lands and the State's general public domain, and provided for a specified percentage of revenues from all state lands for the support of education and mental health programs. A similar program was offered to the University of Alaska, but was not made mandatory due to concerns regarding state constitutional provisions. The Board of Regents of the University recently declined to approve the placement of university lands into the common pool, however.¹⁰

II. STATE LAND SELECTION AND ACQUISITION

Past experience would indicate that mineral development in Alaska is considerably more dependent upon economics and land status than it is on the details of the State's mineral location and leasing requirements. While the economics of a mineral venture are beyond the scope of this paper (and the writer's expertise), the subject of state land status will be dealt with in some detail, perhaps at the expense of a detailed exposition of Alaska's mineral location and leasing statutes and regulations, which will be treated subsequently.

Upon receipt of the large quantity land grants from the United States at statehood, Alaska embarked on the task of reviewing, analyzing, and selecting its "birthright" from among the 295.5-million acres of federal public domain in Alaska and from the 20.7-million acres of National Forest land within the State. The unspoken assumption seemed to have been that federal land status in Alaska would remain generally stable, permitting the new state to take full advantage of the 25-year selections period without removal of significant acreage from the "vacant, unappropriated, unreserved" category upon which state selections depend.¹¹ This hope was dispelled shortly into the 25-year selection period, however. Increasing concern by Alaska's Natives regarding the effect of state acquisition of great amounts of valuable and strategically-located federal lands while Native aboriginal claims remained unresolved led to the filing with the Bureau of Land Management of numerous Native protests to state land selections. These protests effectively slowed the transfer of selected federal lands to the State, a process which halted altogether in 1967 and 1968 with the "land freeze" and "super-freeze" public land orders issued by Interior Secretary Stewart Udall, based upon federal court interpretations of the disclaimer provision (Section 4) of the Alaska Statehood Act and similar

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language found in Art. XII, Section 12 of the Alaska Constitution.¹² This legal web entangling pending and future state land selections was not broken until passage of the Alaska Native Claims Settlement Act (ANCSA), through congressional recognition that secure land title was a prerequisite to construction of the trans-Alaska oil pipeline and development of the Prudhoe Bay field. Though the legal tangle enmeshing state selections has become more orderly following passage of ANCSA, a combination of legal and practical pitfalls still constrain the exercise of state selection rights and the transfer of selected lands, and legislative solutions appear to be justified.

Section 6(g) of the Alaska Statehood Act specifies in some detail the steps to be followed in the selection and transfer of the section 6(a) and 6(b) grants from the United States to the State. A three-step process is involved, consisting of selection, tentative approval, and patent. Prior to receipt of tentative approval, the State does not possess management authority over the selected lands, though they are nominally segregated from other forms of entry...