CHAPTER 5 ALASKA'S D-2 LANDS
| Jurisdiction | United States |
(Sep 1978)
ALASKA'S D-2 LANDS
Anchorage, Alaska
Steven W. Silver
Legislative Assistant to U.S. Senator Ted Stevens, Alaska
Washington, D.C. *
INTRODUCTION
ALASKA ("The Great Land")...
"All this region has neither past nor present, and it may confidently be said of the future, that it is far and impenetrable."
Russian government report, 1867
"This is the challenge in Alaska: To resolve the clash of two opposing forces. One is the need for more and faster development of the land and its resources. The other is the need to retain the qualities of wild country, grand scenery, and a hunting and fishing paradise that are cherished by all."
State Division of Lands annual report, 1963
"The Federal government plans to use the D-2 land bill to tie up Alaska. Then they're going to declare all-out war on the rest of the western U. S."
Former Lt. Governor Boucher, July 1978
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"In Alaska we have wilderness on a grand scale, but we will not have it long unless we act now to preserve it."
Sen. Edward Kennedy August 1978
For over 100 years, from 1766 to 1867, Russia laid claim to the vast area of Alaska. For the next 91 years Alaska was a territory of the United States. During all this long period very little happened to change the basic status of the land or to restrict activities thereon. Though large areas were set aside for National Forests, Parks, Wildlife Refuges and Military Withdrawals, by and large most of the Territory remained part of the broad public domain.
During this period Alaska was a sleeping giant. Competition for private land in the State was not great and Alaska's Native peoples generally remained undisturbed in the traditional use and occupancy of their lands.
The event which startled the giant from sleep was statehood. It has been said that at the time Alaska became a state on January 3, 1959, one could have memorized a general land ownership map of the entire state in less than five minutes.1 The Alaska Statehood Act changed all this. Under the Act the new State was given the right to select in excess of one hundred million acres from the public domain.2
As the State slowly and cautiously began to exercise its selection rights, people came to realize that the era when all of Alaska was just one great federal reserve was drawing to a close. Native leaders reacted with concern when the State filed selection applications on lands also claimed by the Natives. Protests were filed and a "land freeze" was imposed by the Secretary of the Interior, leading ultimately to passage of the Alaska Native Claims Settlement Act of 1971.3 The Act provided for a cash settlement and granted Native selection rights to approximately forty-four million acres of land.
As environmentalists watched these developments they too became concerned. They feared that insufficient consideration was being given to protection of the remaining federal lands in Alaska.4 In connection with the Native Claims Settlement Act, environmentalists requested and received a promise from Congress that it would consider withdrawing additional areas of the State for inclusion in one of the "four systems", i.e., the National Park, Forest, Wildlife Refuge and Wild and Scenic Rivers Systems.5
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What lands should be withdrawn and how these withdrawals should be accomplished are the great issues now before Congress. The Alaska National interest lands question ("the D-2" issue) is properly being called one of the major public land use issues of this century. How the battle is decided will have a deep and lasting influence on Alaska's future and on the future of the Nation. As observed by the Alaska Federal-State Land Use Planning Commission: "the magnitude of the problem and the complexity presented by some of its unique elements should not be under-estimated."6
DEFINITION OF "D-2"
The Alaska National Interest Lands question, or the "D-2 issue", as it is commonly called, has its roots in section 17(d)(2) of the Alaska Native Claims Settlement Act of 1971.7
Section 17(d)(2)(A) directs the Secretary of the Interior as follows:
The Secretary, acting under authority provided for in existing law, is directed to withdraw from all forms of appropriation under the public land laws, including the mining and mineral leasing laws, and from selection under the Alaska Statehood Act, and from selection by Regional Corporations pursuant to section 11, up to, but not to exceed, eighty million acres of unreserved public lands in the State of Alaska, including previously classified lands, which the Secretary deems are suitable for addition to or creation as units of the National Park, Forest, Wildlife Refuge, and Wild and Scenic Rivers Systems: PROVIDED, That such withdrawals shall not affect the authority of the State and the Regional and Village Corporations to make selections and obtain patents within the areas withdrawn pursuant to section 11.
Subsection (B) of 17(d)(2) goes on to state that these withdrawals must be accomplished within nine months of the date of the Act. Subsection (C) requires reports to Congress at six month intervals and states that at the end of two years the withdrawals will expire unless the lands withdrawn have been recommended by the Secretary for inclusion in one of the "four systems." Subsection (D) provides that all lands so recommended by the Secretary will remain withdrawn until Congress acts on the recommendations, but not to exceed a period of five years from the date of the recommendations. Subsection (E) provides that only Native Village Corporations can select lands from the withdrawal areas. (The State and Native Regional Corporations are
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permitted to identify lands they desire to select in the withdrawal areas but the selections will not be acted upon so long as the withdrawals remain in effect. Alternate lands are to be made available to the State and to the Regional Corporations if their selection preferences within the withdrawal areas are not available as a result of congressional action on the withdrawals.)
Section 17 also established the Joint Federal-State Land Use Planning Commission for Alaska and section 17(d)(1) extended the land freeze in the State for 90 days after December 18, 1971. During this period the Secretary was authorized to make additional withdrawals under his existing authority. Unlike (d)(2) withdrawals, however, section 17(d)(1) withdrawals do not preclude locations for metalliferous minerals nor do such withdrawals affect the right of the State and Native Corporations to make selections and obtain patents within areas withdrawn pursuant to section 11 of ANCSA.8
The complete text of section 17 of ANCSA, as amended by P.L. 94-204, January 2, 1977, is set forth in the attached appendix "A".
LEGISLATIVE HISTORY OF D-2
Like the small spring that grew into a roaring river, the "D-2" provisions of ANCSA appear to have their origin in a somewhat obscure comment near the end of the 565 page report of the Federal Field Committee for development planning in Alaska.9 In October of 1968 this agency submitted a report to the chairman of the Senate Committee on Interior and Insular Affairs. The report contained an analysis of the Alaska Native claims issue supported by voluminous facts and figures. Toward the end of the report almost as an afterthought, the Committee made the following comment:
...Also, as the last and most extensive wilderness area in the United States and an area of unparalleled grandeur, the development of National Wildlife Ranges and Refuges and National Parks in Alaska is also of high priority.10
At the time the Committee submitted this report, Congress had just begun to grapple with the Alaska Native claims issue, and public land transfers in the State had virtually come to a standstill. In 1966, the Secretary of the Interior, reacting to the claims of Alaska's Natives, had imposed an administrative "land freeze", suspending BLM action on transfers of federal land in the State. The "freeze" was expanded and formalized in 1969 by PLO 4582. This order withdrew all federal lands
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in the State not otherwise withdrawn, and with the exception of metalliferous mineral locations and certain rights-of-way, it precluded the creating of any new interests in federal lands in the State.11
During this same general period, the environmental protection movement was gaining momentum throughout the country and the public had just been made aware of a large oil discovery on Alaska's North Slope. With these events in mind, it is not surprising that attention in Congress began to focus on the question of what would happen in Alaska after the Native claims were settled and the land freeze had been lifted.
It is reported that Senator Jackson, then Chairman of the Senate Committee on Interior and Insular Affairs, agreed with the Federal Field Committee's suggestion that development of Wildlife Refuges and Parks in Alaska should be considered in conjunction with any Native Claims Settlement legislation.
The bill, which was reported out of his Senate Committee on Interior and Insular Affairs in 1970 contained a relatively brief four-paragraph section entitled "Transitional Operation of Public Land Laws."12 The text of that section is attached as appendix "B" and it is interesting to compare the language of that original proposal with what finally emerged as section 17 of ANCSA.
Commenting on the need for a public lands provision in the Settlement Act, the 1970 committee report stated as follows:
The committee adopted these provisions to provide an orderly procedure whereby public lands may, in the future, be appropriated under the public land laws.13
Obviously fearing a land rush, the committee report cautioned that:
...Absent such a procedure it appears very likely that there would be a rush by people to file mineral leases, homestead...
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