CHAPTER 6 FEDERAL LANDS IN ALASKA

• Jurisdiction: United States

Alaska Mineral Development
(Sep 1978)
CHAPTER 6
FEDERAL LANDS IN ALASKA
Paul R. DeStefano
Ely, Guess & Rudd
Anchorage, Alaska
Dr. Theodore H. Foss
Manager of Minerals Exploration General Crude Oil Company
Houston, Texas

I. INTRODUCTION

Federal domination of land ownership in the State of Alaska — and thus control over the uses to which Alaska's lands may be put — is a fact of present as well as historical significance. With a total land area of approximately 375 million acres, of which over 99.8% was in federal ownership at statehood,¹ Alaska's great area, extensive mineral deposits, isolation and low population density have made it an ideal laboratory for both wilderness preservation and the testing of occasionally unique regulatory tools, theoretically designed to "fine tune" a delicate balance between environmental concerns and aboriginal land claims on the one hand, and pressures for natural resources development and the opening of public lands for homesteading on the other.

In the twenty years since the enactment of the Alaska Statehood Act² the federal presence has diminished surprisingly little. The Statehood Act entitles the State to select approximately 103 million acres, including subsurface rights, within a twenty-five year period,³ exclusive of school lands and tide and submerged lands which passed at statehood by operation of law.⁴ Of this total entitlement only slightly over twenty-two million acres had been patented to the State as of June 30, 1978, with tentative approval given to an additional fifteen million acres.⁵ The federal courts have already been asked on at least two occasions to

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resolve disputes between the federal government and the State and its political subdivisions over the unavailability of choice federal lands as a result of withdrawals,⁶ and delays in the patenting of State selections, the D-2 dispute and the granting of statutory priorities to certain Native land claims forms the basis for widespread hostility towards continued federal ownership of the major precentage of lands within the State, and management of much of its resource wealth. In fact, federal land issues — and the ability of the different candidates to effectively "defend" the State's interests with respect to the varied federal land management plans and proposals recently enacted or under discussion has become the major issue of the pending political campaigns for governor and Congress. A superficial view, at least, of State sentiment would seem to characterize Uncle Sam, at best, as a malevolent absentee landlord.

This continued federal presence and the interim management of lands which will ultimately pass to Alaska Natives under the Alaska Native Claims Settlement Act⁷ ("ANCSA") has been a similar source of contention: entitled by ANCSA to approximately 44 million acres of federal land in the State,⁸ Native corporations have received patent to only 94 thousand acres and interim conveyance to an additional 5 million acres⁹ since the passage of ANCSA almost seven years ago. Delays in conveyancing and ambiguities in ANCSA itself have lead to a mass of lawsuits regarding Native land rights and include a challenge to ANCSA itself as a final settlement of all aboriginal land claims in the State.¹⁰

The point of this inadequate capsulization of the land problems which have arisen under the Statehood Act and ANCSA is to underscore the uncertain state of federal land entitlements in the State which has discouraged some segments of the mining community in the past, and to emphasize the continued importance of federal lands in the context of long-term natural resources development in the State. Aside from the lands which will ultimately pass unto State and Native ownership, almost 200 million acres will remain in federal hands — much of which, depending on the ultimate resolution of pending wilderness proposals and related questions, will be open to at least limited mineral appropriation. As each of these issues is resolved the uncertainties which, in conjunction with relatively high costs of operation in Alaska, have made Alaska less attractive than its natural resources potential might warrant, should diminish.

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The comments that follow are not intended to summarize the volumes of federal statutes and regulations equally applicable to mineral appropriation in Alaska and "Outside." Rather, the paper is intended as a review of some problems related to federal management which are of particular importance to mineral operations in Alaska, generally because of the State's unique potential for wilderness preservation. Unfortunately, present law is uncertain at best, with proposed regulations pending which will change substantially the way in which the federal bureaucracy in the State is run and the procedures with which mineral appropriators in the State must comply. In a sense the State is at a crucial point, with critical federal actions in the areas of land conveyances and wilderness preservation anticipated within the near future. This paper addresses a few of those areas of coming change.

II. WILDERNESS REVIEW UNDER THE FEDERAL LAND POLICY AND MANAGEMENT ACT OF 1976

The Federal Land Policy and Management Act of 1976 ("FLPMA"),¹¹ insofar as it imposes new procedural requirements for the location and maintenance of federal mining claims, has been reviewed in the recent past¹² and, in any event, applies uniformly to mining activities throughout the federal public domain. FLPMA goes beyond this, however, and requires the Secretary of the Interior to initiate an inventory of public lands on the basis of suitability for multiple-use management¹³ and to conduct a wilderness review of those inventoried lands which are roadless and possessed of wilderness characteristics for possible recommendation for inclusion in the National Wilderness Preservation System,¹⁴ managing lands so as to avoid diminuation of wilderness values pending completion of the review. In light of Alaska's vast area, high degree of federal land ownership and abundance of roadless wilderness, the possible effects of FLPMA wilderness review are of particular concern within the State.

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i. Requirements of the Act

Section 603 of FLPMA parallels the Wilderness Act of 1964,¹⁵ with the latter providing for the management of wilderness areas after designation by Congress and §603 requiring the interim management of lands being inventoried and studied for possible designation as wilderness. Section 603 provides, in relevant part:

(a) Within fifteen years after the date of approval of this Act, the Secretary shall review those roadless areas of five thousand acres or more and roadless islands of the public lands, identified during the inventory required by section 201(a) of this Act as having wilderness characteristics described in the Wilderness Act...and shall from time to time report to the President his recommendations as to the suitability or nonsuitability of each such area or island for preservation as wilderness: Provided, that prior to any recommendations for the designation of an area as wilderness the Secretary shall cause mineral surveys to be conducted by the Geological Survey and the Bureau of Mines to determine the mineral values, if any, that may be present in such areas...

(b) The President shall advise the President of the Senate and the Speaker of the House of Representatives of his recommendations with respect to designation as wilderness of each such area. Such advice by the President shall be given within two years of the receipt of each report from the Secretary. A recommendation of the President for designation as wilderness shall become effective only if so provided by an Act of Congress.

(c) During the period of review of such areas and until Congress has determined otherwise, the Secretary shall continue to manage such lands according to his authority under this Act and other applicable law in a manner so as not to impair the suitability of such areas for preservation as wilderness, subject, however,

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to the continuation of existing mining and grazing uses and mineral leasing in the manner and degree in which the same was being conducted on the date of approval of this Act: Provided, that, in managing the public lands the Secretary shall by regulation or otherwise take any action required to prevent unnecessary or undue degradation of the lands and their resources or to afford environmental protection. Unless previously withdrawn from appropriation under the mining laws, such lands shall continue to be subject to such appropriation during the period of review unless withdrawn by the Secretary under the procedures of section 204 of this Act for reasons other than preservation of their wilderness character. [Emphasis added.]

Although §603 does amend the Mining Law of 1872 to permit interim regulation of mineral activities solely on the basis of preservation of wilderness characteristics,¹⁶ FLPMA expressly denies the Secretary the authority to withdraw lands from appropriation under the mining laws in order to effect this preservation.¹⁷ Unlike the Wilderness Act, which closes designated areas to mineral activity after a specified date,¹⁸ §603(c) provides that lands undergoing wilderness review shall remain open to mineral appropriation unless withdrawn under §204 for reasons other than preservation of wilderness characteristics.

Taken in conjunction with §201 of FLPMA which requires the inventorying of all BLM managed lands with priority given to areas of critical environmental concern, §603 appears to require a step by step process, consisting essentially of:

1. Inventory all BLM lands according to multiple-use management potential;

2. Identify those lands which

a. Have wilderness characteristics; and

b. Are in roadless areas in excess of 5000 acres or constitute roadless islands;

3. Study those lands identified at "2" for suitability for inclusion...