Analysis of Laws Governing Access Across Federal Lands: Options for Access in Alaska

Home , Bering Sea Wilderness, McNeil River

February 1979

NTIS order #PB-293982 Library of Congress Card Catalog Number 79-600029

For sale by the Superintendent of Documents, U.S. Government Printing Office Washington, D.C. 20402 Stock No. 052-003-00647-2 Foreword

This analysis was conducted in response to a request from the Tech- nology Assessment Board that the Office of Technology Assessment [OTA) examine the effects of Federal laws, policies, and practices on access through Federal lands to non-Federal mineral-bearing lands. The report analyzes the laws governing Federal land management systems, the laws specifically applicable to Alaskan lands, and the major environmental and land-planning laws that affect access across Federal land management systems. Prior to Alaska statehood, the Federal Government owned over 99 percent of the land in the State. The Alaska Statehood Act and the Alaska Native Claims Settlement Act provide for conveyance of about 40 percent of the land to the State and to Native Regional and Village Corporations. Congressional intent, expressed at the time of passage of these Acts, was to provide land and resources, including minerals, to create an economic base for these non-Federal parties. Following conveyance of State and Native lands, 60 percent of Alaska will remain in Federal ownership. These Federal lands will be managed by a number of different agencies under provisions of several laws. Access is a legal right to use certain lands for a specific purpose and access across Federal to State, Native, and privately held lands is a prominent issue for several reasons. Among these are the extent and nature of the Federal landholdings and the limited surface transportation network. Compared to the contiguous United States, only a small portion of Alaska is served by road or rail; and access for resource development is closely related to the improvement and expansion of these systems. Whether or not access across Federal lands for non-Federal mineral development is an appropriate use of these lands is one element in the intense public debate about the future management of the Federal lands. This report is particularly relevant to the current congressional deliberations about Alaska National Interest Lands legislation. The 96th Congress has before it bills calling for the classification of portions of the remaining Federal lands in the State as national parks, wildlife refuges, national forests, wilderness areas, and wild and scenic rivers. Initiated under the provisions of section 17(d)(2) of the Alaska Native Claims Settle- ment Act, these bills could have a substantial effect on the future course of mineral resource development on both Federal and non-Federal lands. The decision of whether or not to allow Federal lands in Alaska to be used for access requires consideration of many values. These values include

. . . 111 wilderness preservation, resource development, wildlife maintenance, and the subsistence culture of Native and other rural Alaskan citizens. The report presents five policy alternatives, or options, for congressional consideration. They constitute a range of approaches to access policy for Federal lands in Alaska. The options were structured to high- light these alternative approaches so that the advantages and disadvantages of each choice would become more apparent. No single option will meet the requirements of all interest groups, but a combination of several could provide a comprehensive approach to access policy. Congress’ final decision about the availability of access through Federal lands in Alaska for mineral developments on non-Federal lands will have long-range implications for the economy of the State and for conservation of the national interest lands, This report provides information to assist Congress in resolving this important issue.

RUSSELL W. PETERSON Director

iv OTA Materials Group

Albert E. Paladino, Group Manager Frank J. Wobber, Project Director Karen L. Larsen, Technical Staff William E. Davis, Technical Staff Administrative Staff Mary J. Adams Mona M. Chick Carol A. Drohan Jackie S. Robinson Joyce E. Robinson

OTA Publishing Staff

John C. Holmes, Publishing Officer Kathie S. Boss Joanne Heming Materials Group Advisory Committee

James Boyd, Chairman Materials Associates

Earl H. Beistline Julius Harwood University of Alaska Ford Motor Company Seymour L. Blum Elburt F. Osborn The MITRE Corporation Carnegie Institution of Washington Lynton K. Caldwell Richard B. Priest Indiana University Sears, Roebuck and Company Robert L. Coble N. E. Promisel Massachusetts Institute of Technology National Materials Advisory Board Lloyd M. Cooke Lois Sharpe Union Carbide Corporation League of Women Voters Frank Fernbach Raymond L. Smith United Steel Workers of America (Ret.) Michigan Technological University James H. Gary Simon D. Strauss Colorado School of Mines ASARCO, Inc. Edwin A. Gee George A. Watson International Paper Company Ferroalloys Association Bruce Hannon Franklin P. Huddle University of Illinois Congressional Research Service

Advisory Panel for Assessment of Access to Minerals on Non-Federal Lands

Earl H. Beistline, Chairman Dean, School of Mineral Industry, University of Alaska

Roger Allington, Land and Engineering Officer John Katz, Chief Counsel Sealaska Corporation Federal-State Land Use Planning Commission, Alaska James Boyd, President Materials Associates Elburt Osborn, Distinguished Professor Carnegie Institution of Washington Charles Clusen, Associate Director Sierra Club

vi Alaska Working Groups

OTA wishes to acknowledge the contribution of the two Alaska working groups that were convened to discuss the needs for access across Federal lands for mineral development on non-Federal lands and the environmental and social impacts of access.

Mineral Resources Workshop University of Alaska, August 20-21,1977 Convened and chaired by Russell Babcock Bear Creek Mining Company, Spokane Washington E. O. Bracken Ross G. Schaff Alaska Department of Commerce and Alaska State Geologist, Economic Development Department of Natural Resources Division of Economic Enterprise Division of Geological and Geophysical Juneau, Alaska Surveys Anchorage, Alaska Ed Fields Bear Creek Mining Company Spokane, Washington John W. Whitney C. C. Hawley Mineral Economist C. C. Hawley& Associates, Inc. Reno, Nevada Anchorage, Alaska Hugh Mathison Placer Development Corp. Dave Williams Vancouver, Canada Doyon, Ltd. Jack F. McQuat Fairbanks, Alaska WGM, Inc. Anchorage, Alaska Edwin M. Rhoads Frank Wobber Mineral Industry Research Laboratory Congress of the United States University of Alaska Office of Technology Assessment Fairbanks, Alaska Washington, D.C.

vii ——

Environmental Resources Workshop University of Alaska, October 18-20,1977 Convened by Celia Hunter, The Wilderness Society Chaired by Robert B. Weeden, University of Alaska, Fairbanks, Alaska Robert Belous David W. Norton National Park Service University of Alaska Anchorage, Alaska Fairbanks, Alaska Dave Cline National Audubon Society Juneau, Alaska Wyatt G. Gilbert Ben Shaine University of Alaska Alaska Coalition Fairbanks, Alaska Anchorage, Alaska George Matz Fairbanks Environmental Center Fairbanks, Alaska Frank Wobber T. Snell Newman Congress of the United States National Park Service Office of Technology Assessment Anchorage, Alaska Washington, D.C.

Acknowledgments

This report was prepared by the Office of Technology Assessment Materials Group. The staff wishes to acknowledge the following individuals and organizations who contributed to the assessment.

Congressional Research Service Dr. Allen Agnew, Senior Specialist in Environmental Policy (Mining and Mineral Resources) Consultants Dennis Bryan Renee G. Ford David Masselli W. E. Dresher B. Theberge S. Whitney

Contractors John W. Whitney, Inc. The Wilderness Society C. C. Hawley& Associates Resource Planning Associates, Inc. Harbridge House, Inc. Geological Resources, Inc. Earth Satellite Corp. Univ. of Arizona Pan Technology Inc.

. . . Vlll Alaska Groups

A large number of individuals and organizations in Alaska provided information for the assessment and reviewed draft documents circulated by OTA. While the contributions of these various groups are acknowledged, OTA assumes full responsibility for the content of this assessment report. A list of groups from the contiguous United States that contributed to the problem evaluation phase of the assessment is provided in appendix C.

Alaska Federation of Natives, WGM, Inc. University of Alaska Inc. Wilderness Society College of Mineral Industry Alaska Miners Association, Inc. Mineral Industry Research Alaska Native Foundation Laboratory Alaska Native Land Manager’s Cooperative Extension Service Association State of Alaska Geophysical Institute Bear Creek Mining Company Department of Commerce and Institute of Social and Bering Straits Native Corpora- Economic Development Economic Research tion Division of Economic Enterprise Bristol Bay Native Corporation Division of Energy and Power Citizens for Management of Development United States Government Alaska Lands Department of Environmental Federal Power Commission Doyon, Limited Conservation Alaska Power Administration Fairbanks Industrial Develop- Department of Fish and Game Department of Agriculture ment Corporation Department of Natural Forest Service Federal-State Land Use Planning Resources Department of the Army Commission for Alaska Division of Geological and Corps of Engineers Great Lands Exploration Geophysical Surveys Department of the Interior Greater Fairbanks Chamber of Department of Transportation Bureau of Land Management Commerce and Public Facilities Bureau of Mines Hawley & Associates Legislative Affairs Agency Fish and Wildlife Service Placer Mining, Inc. Division of Research Geological Survey Resource Associates, Inc. Office of the Governor National Park Service Sealaska Corporation Division of Policy Development Department of Transportation Standard Oil of California and Planning Alaska Railroad Administra- Usibelli Coal Co. Office of Pipeline Surveillance tion

ix Contents

Chapter Page 1. Summary...... 3

2. Introduction ...... 19

3. Federal Laws Affecting Access ...... 33

4. Federal Land Management Systems ...... 55

5. Federal Laws Affecting Alaska Lands and Resources ...... 103

6. Federal Land Planning and Environmental Laws ...... 139

7. Options for Congressional Consideration...... 213

8. Concluding Remarks...... 243

Appendix A—Glossary...... 247

Appendix B—Acronyms...... 253

Appendix C—Public Participation and List of Supporting Documents...... 254

xi ——

1 Executive Summary

Photo Credit.Credft. OTA Staff The Alaska Railroad and the highway connecting Fairbanks and Anchorage, Alaska, looking south from near Nenana, Alaska Chapter 1.- EXECUTIVE SUMMARY

Page 4 6 5 6 7 7 10 11 12

12 14 14 14

15 15 15

13 1 Executive Summary

Rarely has the conflict between resource has turned on the resolution of the conflict development and protection of the natural en- between the use of land for its economic re- vironment been more severe than in Alaska. sources and the preservation and protection The largest State is a treasury of natural of land for its natural values. beauty, wildlife, and wilderness on a scale that does not exist in the rest of the Nation. At The most recent development in this proc- the same time, it has an abundance of natural ess of change has grown out of legislative ac- resources that may be needed in the future. tions taken in 1971 to resolve an earlier con- For decades, distance, climate, and lack of troversy— the assertion of claims to almost development combined to enforce de facto all of Alaska by native Indians, Eskimos, and preservation of Alaska’s natural treasures. The barriers that have protected Alaska’s environment have been lowered by technology, by local development, and by an increased demand for resources. At one time nearly all of Alaska’s 375 million acres were vacant and unappropriated Federal lands. Little attention was given to establishing management policies to govern land use. With the exception of Alaska Na- tives, few used these vast lands and resources. The waves of exploration and exploi- tation that accompanied the booms in furs, gold, and oil left most of the State untouched. Now, for the first time, there is a reasonable prospect for natural resource development throughout the State, and plans are being made for many such projects. Economic development has been accompanied by a major restructuring of landownership and land management policy in Alaska that began in 1959 with the admission of Alaska as a State Photo Credit OTA Staff and may well continue into the 1990's. Each Inactive gold dredge near Fairbanks, Alaska. Placer mining step of this process of change has been for gold is underway in some areas of Alaska and interest in dogged with controversy. Often the debate hardrock mining is growing

3 4 ● Analysis of Laws Governing Access Across Federal Lands

Aleuts. The Alaska Native Claims Settlement ka Statehood Act and threatened to impede Act (ANCSA) extinguished all aboriginal land construction of the Trans-Alaska Oil Pipeline. claims and, in compensation, gave Alaskan ANCSA removed a major obstacle to the pipe- Natives $962.5 million and the right to select line and paved the way for conveyances to 44 million acres of Federal lands in the State. the State and to Native groups that will shift Conflicts over the Native land claims had approximately 40 percent of Alaska’s land to slowed State land selections under the Alas- non-Federal ownership.

ALASKA NATIONAL INTEREST LANDS

ANCSA also addressed the management of covered by congressional or administration Federal lands in the State. A key provision, “d-2” proposals from mineral entry or selec- section 17(d)(2), directed the Secretary of the tion by the State of Alaska. This emergency Interior to withdraw up to 80 million acres of withdrawal of some 110 million acres is effec- land that he deemed suitable for potential in- tive for 3 years. clusion in the National Park, Forest, Wildlife On December 1, 1978, President Carter in- Refuge, and Wild and Scenic Rivers Systems. voked the Antiquities Act of 1906 to create 17 The Secretary was to study these lands and new national monuments in Alaska. These make recommendations to Congress. To pro- monuments, totaling some 56 million acres, tect the national interest in these lands, com- include 13 new national parks, 2 new na- monly called “d-2” lands, prior to congres- tional wildlife refuges, and 2 national forest sional action, they were withdrawn from all areas previously proposed for wilderness forms of appropriation under the public land designation. National monuments are closed laws, the mining and mineral leasing laws, to all disposition under the public land laws and from selection by the State or Native including the mining and mineral leasing regional corporations. Statutory authority for laws. National monument status can be mod- these withdrawals expired on December 18, ified or revoked only by congressional action. 1978. On December 1, the President also an- Many proposals for Alaska National In- nounced that the Secretary of the Interior terest Lands have been introduced in Con- would initiate further action under section gress since passage of ANCSA. During the 204(c) of the Federal Land Policy and Man- 95th Congress, extensive hearings were held agement Act to protect approximately 40 mil- on Alaska Lands legislation before House and lion acres of proposed wildlife refuges under Senate committees. In May 1978, the House 20-year withdrawals. Section 204(j) of the passed H.R. 39, which would have set aside Act provides that the Secretary of the Interi- over 100 million acres of Federal lands as na- or may not modify or revoke any withdrawal tional parks, forests, wildlife refuges, wild made under the Act that adds lands to the Na- and scenic rivers, and wilderness areas. In tional Wildlife Refuge System. An additional October 1978, the Senate adjourned without 11.2 million acres of proposed wilderness acting on the Alaska Lands Bill. areas in the Tongass and Chugach National Prior to the expiration of the “d-2” with- Forests would be protected under a 2-year drawals, a series of executive actions dra- withdrawal from location under the mining matically altered the Federal land manage- laws and from State selection. Application ment pattern in Alaska. On November 16, for this withdrawal to protect natural values 1978, the Secretary of the Interior used his and in aid of legislation was submitted to the emergency authority under section 204(e) of Department of the Interior by the Secretary the Federal Land Policy and Management Act of Agriculture on November 28, 1978. In an- to withdraw all public lands in Alaska nouncing these withdrawals, the President Ch. 1 Executive Summary ● 5 declared his intention to seek legislation per- The conditions under which a given area of manently setting aside these areas and an ad- Federal land may be used for access are de- ditional 10 million acres included in the termined to a large extent by the land classifi- November emergency withdrawals. cation system into which the land has been The outcome of congressional decisions on placed. Each system—parks, forests, wildlife Alaska lands could have a particularly strong refuges, wild and scenic rivers, wilderness, impact on the future course of mineral re- and public lands—has its own rules. In the source development in Alaska. Although Fed- West and in Alaska, where much of the land eral lands have most often played a major is in Federal ownership, the use of Federal role in mineral resource development be- lands for access is an important element of cause they contain rich mineral deposits, they land management policy. For understandable are also important as routes for access to reasons, the mineral industry favors policies areas of mineral potential, both on and off the that encourage such use, while environmen- Federal lands. tal and conservation interests oppose them.

OTA ASSESSMENT

At the request of the Technology Assess- Western States with a high percentage of ment Board, OTA conducted an assessment Federal land and an active mining industry. of how Federal laws, policies, and practices OTA selected study areas in Eastern and related to the use of Federal lands for access Western States as well as in Alaska. Because purposes influence hardrock mining on non- of the timeliness and relevance of the materi- Federal lands. The focus of the assessment is als assembled during the assessment to cur- on access for non-Federal mineral resource rent congressional consideration of Alaska development, that is, the ability to reach min- National Interest Lands legislation, assess- eral-bearing lands and to remove the mate- ment results were made available for the use rials produced. of Members of Congress, their legislative The assessment was national in scope and staffs, and various committees as the study specifically examined Alaska and several progressed.

ACCESS ACROSS FEDERAL LANDS

Access is the ability to reach certain lands. —Private rights-of-way across Federal It includes the right to use lands for private lands to reach non-Federal lands or to rights-of-way and for transportation systems. reach existing transportation systems; Permission to cross Federal lands is generally and obtained through a special use permit, a right-of-way, or an easement granted under —Rights-of-way across Federal lands for the authority of the agency managing the transportation systems (roads, high- land. This report is concerned with two types ways, railways, ports) to serve public of access needs associated with hardrock needs in general and mineral transpor- mineral development: tation in particular. -. .—

6 ● Analysis of Laws Governing Access Across Federal Lands

SERIOUSNESS OF ACCESS PROBLEMS IN ALASKA

An independent OTA analysis of five constructed to transport hardrock min- Alaskan study areas gives a perspective of erals. In these areas, the development of the seriousness of the problems associated surface transportation systems to ac- with access across Federal lands in Alaska. commodate mineral resource production For each study area, OTA evaluated the need or for other public purposes will involve to use Federal lands for access to non-Fed- long distances and rights-of-way over eral lands. The evaluation was based on cur- Federal, State, and Native lands. The rent information about State and Native land need to cross Federal lands in some selections, transportation availability, and remote areas of Alaska is likely to arise location of mineral deposits. As the final con- regardless of whether a statewide or veyances of State and Native selections pro- regional transportation system ap- ceed, non-Federal landownership patterns on proach is adopted. which the evaluation was made could be altered. Information concerning the location The surface transportation network in of mineral deposits is also increasing. Thus, Alaska is not extensive compared with that in OTA’s evaluation could be subject to some other States. The primary means of transpor- modification in response to shifts in landown- tation between most areas of the State is by ership or mineral development activity. Gen- airplane. The existing combination of air and erally, however, OTA found that: surface transportation is adequate to move people and goods for most present needs. It is ● The need for rights-of-way across Fed- technically and economically feasible to ship eral lands to reach non-Federal minerals precious metals by air, but most other hard- is a localized problem that is likely to oc- rock minerals require transportation systems cur in scattered instances. The need for that can move large volumes of bulky materi- rights-of-way across Federal lands to al over long distances at a relatively low cost. reach existing surface transportation is also likely to occur infrequently, The planning and development of surface transportation systems is normally a State function. There is, at present, no consensus ● In some regions of Alaska, mineral on the appropriate transportation system or resource development will require the combination of systems to serve Alaska’s improvement of existing transportation community development and resource needs. in order to move the bulk mineral prod- Various interests have advanced arguments ucts to market. In those regions served for building new surface transportation by existing surface transportation, non- routes or improving existing routes at public Federal lands are largely contiguous, expense, for extensions to the system fi- and a minimal need exists for rights-of- nanced by potential resource developers, and way across Federal lands for transpor- for little additional development, This assess- tation routes to serve non-Federal miner- ment does not consider the relative merits of al areas. any of these positions, nor does it weigh the costs and benefits of alternative transporta- ● In regions that are not served by existing tion strategies. Rather, it addresses how surface transportation systems and that Federal policies on the use of Federal lands are isolated from the rest of the State for access, including use for the development and each other by Federal lands, new of transportation systems, affect hardrock transportation systems will have to be mineral development on non-Federal land. —

Ch. 1 Executive Summary ● 7

After conveyance of State and Native land tion, access across Federal lands may be re- selections, 60 percent of Alaska’s lands will quired to reach non-Federal lands. The ac- remain in Federal ownership. Because of the cess policies of Federal land management vast Federal areas involved, the patchwork agencies could exert substantial influence distribution of non-Federal lands, and the over the development of resources in isolated limited extent of existing surface transporta- non-Federal areas.

FEDERAL LAWS

Because Federal land management policies FEDERAL LAND are likely to exert a strong influence over ac- MANAGEMENT LAWS cess across Federal lands in Alaska, this report reviews those Federal laws affecting Each Federal land management system has access to minerals on non-Federal lands. The its own rules governing access for mineral laws are divided into three categories: development on non-Federal lands. Two factors determine the terms and conditions 1. Federal Land Management Laws— placed on access use of Federal lands: (1) the Laws and regulations providing for ac- classification of the affected land, and (2) the cess across units of the six Federal land proposed use for which access is needed. management systems: public lands, Na- Land managers for every system, including tional Park System, National Wildlife the Wilderness System, have statutory au- Refuge System, National Forest System, thority to grant some rights-of-way. The avail- National Wild and Scenic Rivers System, ability of such grants and the nature of any and National Wilderness Preservation conditions imposed reflect the general pur- System. poses for which the affected unit is managed.

2. Federal Laws Relating to Alaska Lands and Mineral Resources-The Alaska Public Lands Statehood Act, the Alaska Native Claims The Bureau of Land Management (BLM) Settlement Act, the Trans-Alaska Pipe- administers the public lands under laws that line Authorization Act, the Alaska require application of multiple use principles. Natural Gas Transportation Act of 1976, The Secretary of the Interior has ample au- and the Naval Petroleum Reserves Pro- thority under the comprehensive provisions duction Act of 1976. of Title V of the Federal Land Policy and Management Act of 1976 (FLPMA) to issue 3. Federal Land Planning and Environmen- rights-of-way across the public lands, except tal Laws—These laws can affect the designated wilderness areas, for access to availability of access through various non-Federal lands, for roads, highways, rail- procedural and substantive require- roads, and other transportation systems and ments. The report analyzes the impact facilities, and for other purposes. Section 603 on access of the National Environmental of FLPMA requires that the BLM inventory Policy Act of 1969, section 4(f) of the De- for wilderness values all roadless areas of partment of Transportation Act, the En- 5,000 acres or more and all roadless islands dangered Species Act, the Clean Air Act, in the public lands. Potential wilderness the Clean Water Act, and the Coastal areas are placed in a wilderness study clas- Zone Management Act. sification and must be managed to protect —.

8 ● Analysis of Laws Governing Access Across Federal Lands

wilderness values until completion of admin- National Wild and Scenic Rivers System istrative review and congressional action. Wild and scenic rivers are managed by the The requirement for protective management Federal or State agency that had managerial limits the Secretary’s discretion to approve responsibility for these areas prior to their any use of wilderness study areas, including designation. These rivers are managed to rights-of-way, that might conflict with or im- preserve and protect them in a free-flowing pair wilderness values. condition for present and future generations. National Park System Rights-of-way across units of the National Wild and Scenic Rivers System administered The National Park Service manages units by the Department of the Interior are granted of the park system to conserve scenic and under laws applicable to the National Park natural values and preserve them for the en- System regardless of the managing agency. joyment of future generations. There is no Rights-of-way over units managed by the De- statutory provision expressly authorizing partment of Agriculture are governed by rights-of-way across lands in the National laws applicable to the National Forest Sys- Park System for access to non-Federal lands tem. Any conditions placed on the issuance of or for transportation systems. The approval any such right-of-way must be related to the of rights-of-way and other access uses of na- purposes of the Wild and Scenic Rivers Act. - tional park lands is a matter left to the management discretion of the Secretary of National Wilderness Preservation System the Interior and the local park superintendent. Access use of park lands must be in con- Units of the wilderness system are ad- formance with the purposes of the park sys- ministered by the Federal agency that had tem and of the individual unit to be crossed. managerial responsibility for these areas prior to their designation. Wilderness areas National Wildlife Refuge System are managed under protective rules to conserve their wilderness character. The Wil- The Fish and Wildlife Service manages the derness Act of 1964 forbids any temporary or wildlife refuge system as part of a national permanent roads or the use of mechanized program of wildlife conservation and rehabil- modes of transportation in designated wil- itation. Rights-of-way across lands in the Na- derness areas—except as specifically pro- tional Wildlife Refuge System may be allowed vided by Congress. The use of lands in the Na- if the proposed use is compatible with the tional Wilderness Preservation System for purposes of the refuge, and the applicant access purposes is limited to the specific ex- agrees to pay the fair market value for such ceptions recognized in the Wilderness Act. use. These include: existing private rights; management and emergency purposes; access to National Forest System private or State lands completely surrounded The Forest Service manages the national by a national forest or public lands wilder- forests on a multiple-use sustained-yield ness area; use of airplanes and motorboats in basis. The Secretary of Agriculture has am- areas where such use predates wilderness ple authority to grant rights-of-way across designation; ingress and egress to valid min- national forest lands, except designated wil- ing claims and other valid occupancies wholly derness areas, under the comprehensive pro- within a national forest or public lands wil- visions of Title V of the Federal Land Policy derness area; facilities authorized by the and Management Act of 1976. Rights-of-way President in the national interest within a na- for roads and trails may also be granted tional forest or public lands wilderness area; under provisions that authorize the develop- and other exceptions specifically approved ment of the National Forest Transportation by Congress. The exceptions applicable to na- System. tional forest and public lands wilderness Ch. 1 Executive Summary ● 9 areas do not apply to park or refuge wilder- access. However, when land classifications ness areas. The exceptions for completely are established, reasonable assumptions con- surrounded non-Federal lands or other lands cerning the availability or nonavailability of wholly within a wilderness area may not pro- Federal lands for access uses will be possi- vide adequate assurance of access to some ble. isolated but nonsurrounded non-Federal areas in Alaska. Construction of surface Given existing laws and policies, access transportation systems through wilderness should be available across most units of the areas requires specific congressional ap- public lands and the forest system, except proval. designated wilderness areas and wilderness study areas. Access across units of the Na- Access Across Federal Lands in Alaska tional Wildlife Refuge System is allowed if it does not pose a threat to protected wildlife. Congressional designation of Alaska Na- Because of the high degree of protective man- tional Interest Lands will reduce many of the agement afforded parks, wild and scenic uncertainties about the potential use for ac- rivers, and wilderness areas, use of these cess of Federal lands in Alaska. It is impossi- lands for access to non-Federal areas or for ble to predict what response a land manage- transportation routes is strictly limited. On ment agency will make to a given request for park and refuge wilderness areas, an act of Congress would be required to allow any significant access. In all systems, but particularly the more protected, the availability of access may well turn on the factual issue of whether alternative routes or means of access exist. Each system makes some provision for special consideration of requests from non-Federal landowners whose property is wholly surrounded by Federal lands. The question of alternative routes is also critical in considering the extension of any federally funded public transportation network across lands used for parks or wildlife refuges. Such projects may be approved only if there is no feasible alternative. Enactment of d-2 legislation will not end all the uncertainties about which land management policies will be applied to Federal lands. As a result of the BLM wilderness review, additional Federal lands could be placed under wilderness protection in the future. This possibility creates some uncertainty about the future availability of access across the public lands. BLM wilderness areas are to be managed according to provisions of the Wilder- ness Act that are applicable to the national

Photo Cred/t: Boyd Norton ICI, courtesy of Alaska Coalition forest wilderness areas. The BLM will give Mount Drum in the Wrangell-St. Elias area exemplifies priority to review of wilderness potential of Alaska’s spectacular scenery public land roadless areas in the lower 48 10 ● Analysis of Laws Governing Access Across Federal Lands

States. Wilderness inventory of Alaska public The Alaska Native Claims Settlement Act lands will be deferred until after congres- (ANCSA) extinguished all Native claims to sional action on d-2 proposals and convey- lands and hunting and fishing rights based on ance of Native selections. This delay will pro- aboriginal title or use. In exchange, Alaska vide an opportunity for non-Federal land- Natives were given the right to select some 44 ownership patterns and access needs to million acres of Federal lands and to share in emerge. an Alaska Native Fund of $962.5 million. Thirteen profit-making Native Regional Cor- porations were established to administer FEDERAL LAWS RELATING TO land selections and fund distributions. Native ALASKA’S LANDS AND MINERAL Village Corporations were also established to RESOURCES administer local village selections. The mineral or subsurface rights to all Native selec- The Alaska Statehood Act and the Alaska tions are vested in the Regional Corporations. Native Claims Settlement Act provide for the Village Corporations receive surface title transfer of approximately 40 percent of Alas- only, The Alaska Native Fund is dependent, in ka’s land to non-Federal ownership. The depart, on contributions of $500 million from velopment of land-based resources, including Federal and State mineral leasing revenues. minerals, was a major intent behind these grants of Federal lands to the State and ANCSA also established the Federal-State Alaska Natives. Land Use Planning Commission for Alaska. The Commission was to identify necessary The Alaska Statehood Act endowed the public easements across Native lands. The new State with grants of Federal lands and Secretary of the Interior was authorized to revenues. These grants were intended to pro- reserve specific easements across Native vide a stable economic base for the State. lands. No provision was made for easements Alaska received the right to select across Federal lands to assure access to 103,350,000 acres of Federal lands, plus over lands conveyed to Alaska Natives. Secre- 1 million acres of territorial grants of univer- tarial orders reserving extensive easements sity, mental health, and school lands that across Native lands have been the subject of were confirmed by the Statehood Act, and complex litigation delaying Native land con- from 35 million to 40 million acres of sub- veyances. merged lands. All statehood land grants must be selected by January 3, 1984, from Federal Three other laws relating to the role of lands that are vacant, unappropriated and, Federal land management in the development except for certain national forest lands, unre- of natural resources in Alaska were also reserved at the time of their selection. viewed. The Trans-Alaska Pipeline Authori- zation Act authorized an expedited proce- The State also received a share of Federal dure for granting a right-of-way for the revenues derived from natural resources Trans-Alaska Oil Pipeline. Judicial and ad- within the State. Alaska is entitled to 52% ministrative reviews of licensing and environ- percent of the annual net profits of Federal mental proceedings were limited. The Act mineral leases in Alaska in lieu of State par- also authorized a reservation for additional ticipation in the reclamation fund. (This grant rights-of-way for compatible uses on or adja- is in addition to the 37%-percent revenue en- cent to the pipeline right-of-way. titlement previously granted to the territory, thus bringing Alaska’s share of Federal min- The Alaska Natural Gas Transportation eral leasing revenues to 90 percent.) The Act of 1976 provided an expedited procedure Statehood Act also gives the State the right to for the consideration of several pending pro- receive 90 percent of the net proceeds from posals to construct a natural gas pipeline Federal coal lands in Alaska. from the North Slope to the lower 48 States. Ch. 1 Executive Summary ● 11

This expedited procedure provided for coor- Section 4(f) of the Department of Trans- dinated review of right-of-way applications portation Act of 1966 bars the expenditure of covering several different management sys- Federal funds for the construction of trans- tems. Final approval of the Presidential rec- portation projects that require the use of ommendation for a natural gas pipeline was lands from any public park, recreation area, provided by a congressional joint resolution. wildlife refuge, or historic site of National, The Naval Petroleum Reserve Production State, or local significance, unless there is no Act of 1976 transferred jurisdiction over and feasible and prudent alternative to such use management of the Naval Petroleum Reserve and the project includes all possible planning in Alaska to the Department of the Interior. to minimize harm to the protected lands. The No provision is made for granting any right- Secretary of Transportation must conduct an of-way over the Reserve for access to non- independent review of possible alternatives before approving any federally aided trans- Federal lands. The Secretary of the Interior portation project using protected lands. must submit a report on the nonpetroleum values of the Reserve within 3 years. The Endangered Species Act of 1973 requires that all Federal agencies consider the potential impact a proposed action may have FEDERAL LAND PLANNING AND on an endangered or threatened species or a ENVIRONMENTAL LAWS critical habitat. Agencies must consult with the Secretary of the Interior on means to Federal land planning and environmental eliminate or minimize any risk to a protected laws can also influence the availability of ac- species or habitat. In areas that are home to cess to non-Federal mineral areas. Some of unique and endangered species, compliance these laws impose procedural requirements with the Endangered Species Act could im- or substantive restraints on the actions of pose additional constraints on Federal land Federal land managers in reviewing and issu- management agencies in issuance of rights- ing rights-of-way and access permits. Other of-way across Federal areas. laws set environmental standards for transportation and mining activities on both Fed- The Clean Air Act and the Clean Water eral and non-Federal lands. Compliance with Act set national standards for air and water these standards is often made an express quality. Primary responsibility for enforce- condition of rights-of-way across Federal ment of these standards is vested in the areas. States. Compliance with State and Federal air and water quality standards is an express The National Environmental Policy Act of condition of Federal land management sys- 1969 (NEPA) requires that an environmental tem right-of-way permits. Noncompliance impact statement (EIS) be prepared for major could lead to revocation of the right-of-way. Federal actions that significantly affect the quality of the human environment. NEPA im- The Clean Air Act Amendments of 1977 poses no specific environmental standards or imposed strict controls on increases in the direct restraints on access to minerals on levels of certain pollutants in areas where the non-Federal lands. It does, however, exert air quality is better than the national ambient substantial indirect influence, since Federal air quality standards. These amendments land management agencies must comply with divide existing clean air regions into three NEPA in their review of requests for rights- classes according to allowable annual incre- of-way across Federal lands. EIS preparation ments in air pollution: Class I areas where and review may lengthen the time required minimal additional pollution is allowed; Class for approval of some rights-of-way and other II areas where moderate amounts of new pol- permits. Applicants may be required to pay lution are allowed; and Class 111 areas where the costs of EIS preparation. pollution levels can increase to the national 12 ● Analysis of Laws Governing Access Across Federal Lands

standards. Some existing national park and The Coastal Zone Management Act wilderness areas, including one park and (CZMA) provides participating States with three refuge wilderness areas in Alaska, Federal grants to develop and administer were statutorily designated as Class I areas. comprehensive land management programs No d-2 lands are in this category. Certain for their coastal zones. In addition, by requir- other existing large national parks, monu- ing that Federal activities in the coastal zone ments, and refuges are Class II areas and must “be consistent to the maximum extent cannot be redesignated to Class III. There are possible,” with the State plan, it offers States two such areas in Alaska. The only new con- an opportunity to influence activities on Fed- servation units that cannot be redesignated eral lands. Federal land management agen- to Class III status are new national parks and cies are subject to the consistency require- wilderness areas that are over 10,000 acres ments of the CZMA. Applications for rights- in size. The authority to redesignate the of-way or other uses of Federal lands in or classification of clean air areas, with the ex- affecting coastal zone areas must be consist- ceptions noted above, is vested in State ent with any approved State management governments. Federal land managers have program. The effect of CZMA in Alaska is only an advisory role in the redesignation unclear, because planning is incomplete. process.

OPTIONS FOR CONGRESSIONAL CONSIDERATION

An array of options for congressional con- The five options are: sideration was developed in response to the assessment request to consider possible mod- OPTION l–THE APPLICATION OF ifications of Federal access policies (table 1). EXISTING ACCESS POLICIES TO These legislative policy options present a ALASKA ADDITIONS TO NATIONAL range of approaches to the policy questions of CONSERVATION SYSTEMS–THE whether and for what purposes access STATUS QUO should be permitted across Federal lands in Alaska. The options deal only with Alaska Under this option, the availability of access lands. over Federal lands would vary depending on the land management system and the geo- The choice of an access policy for Alaska’s graphic area involved. Access policies for d-2 lands involves the balancing of many com- Alaska conservation units and public lands peting interests and values, not only access would be the same as those found in other for the development of hardrock mineral re- sections of the Nation, and the protections af- sources on non-Federal lands. No single op- forded Alaska lands would be consistent with tion was designed to meet the needs of all in- the levels provided elsewhere. Any shortcom- terest groups. Accordingly, a combination of ings or uncertainties in existing laws would several options may provide a more com- remain. Mineral activities requiring access prehensive approach to the access needs of through parks and wilderness areas could be non-Federal landowners to cross Federal discouraged in areas where alternative ac- areas to reach their lands and the potential cess was not available. Some landowners need to construct major transportation sys- might not have adequate assurance of access tems across Federal areas to serve economic and of the terms and conditions under which development or community needs. rights-of-way may be granted. Table 1. —Summary of Selected Congressional Action Options*

Option—r 3A & B—Limited Provisions for Option 1 Option 2 Alaskan Ac cess Needs Option 4A, B,& C Option 5 Adopt Existing Defer Access B. Boundary Shift and Alaskan Trans- Restriction of Access Access Policies Decision A. Alaska Lands Land Exchanges To portation System Across National Con- Right-of-Way Exclude Access Access Provisions servation System Routes Lands

ACCESS Access through ap- Specific deferral of ac- Special right.of-way Local realinement Use of Federal d-2 Access use of Federal POLICY plication of existing cess questions involv- provision for Alaskan of boundaries of lands for Alaskan d-2 lands restricted DECISION laws ing d-2 designations lands for access conservation sys- transportation sys- beyond existing and remaining Federal through Federal lands terns designations tem needs specifi-. statutory Iimitations. lands in Alaska until a to surrounded, adja- to exclude access cally accommo- Existing private rights certain date, or some cent, or otherwise routes Land ex- dated through (a) access to surrounded event in future, or in Isolated non-Federal changes to provide transportation sys- lands, and existing definitely lands or Interests in access routes for tern right.of.way rights-of-way would be land non-Federal land- provisions, or (b) recognized owners, with exact designated corri- Iocations Included dors, or (c) new in d-2 designations, Federal-State re- or by reference to view agency for maps filed later Alaskan transport tion systems

TIMING OF Now Deferral—now, Access Now Now Now Now ACCESS DECISION decision — later

LEGISLATIVE Congress makes d-2 Specific deferral provi- Provision of d-2 lands Provisions of d-2 lands Provision of d-2 lands Provision of d-2 lands IMPLEMEN- lands designations sion in d-2 lands legislation —or as new legislation, or new legislation—new legislation, or new TATION without any provision Iegislation authority amendment and exchange author- authority amendment of existing for nonrecreational of existing right.of-way ity provisions— new access provisions authority

IMPLEMENTING Existing Institutions Existing Institutions Existing Institutions Existing Institutions (a) & (b) Existing in- Existing Institutions INSTITUTIONAL stitutions and/or (c) a ARRANGEMENT’ new reviewing body for Alaska transportation systems.

TRANSPORTA- Existing decision Existing decision Existing decision Existing transportation (a) & (b) Existing deci- Existing decision TION SYSTEM mechanism— Federal- mechanism—transpor mechanism—this op- decision mechanism– sion mechanisms, or mechanism. Use of DECISION2 State transportation tation systems use of tion provision does local boundary shifts (c) existing transporta- Federal conservation planning and Federal Federal d-2 lands not authorize rights-of - would leave access tion decisionmaking system lands for DOT 4(f) review. Later delayed until policy way for development routes as public lands lnstitutions plus new Alaskan transportation congressional review decision of major transporta- (d-1 classification) with review body system not permitted of specific systems via tion systems fewer use restrictions without congressional program approvals and than parks, etc., and approval. (The restric- appropriations also available for later tion IS for transporta- State selection DOT tion system use and 4(f) review of route not would not remove ex- required in most isting access cases, land exchange guarantees for non- would put route in federal landowners.) non-Federal ownership

‘For a complete discussion see text ‘Ex@ma lnStltUtiOnS include. Department of the Interior—Bureau of Land Management. National Park Serwce. Fish and Wlldlffe Serwce: Department of Aarlculture— Forest Serwce 2Exlstln~ agencies involved In transportation declslonmaklng Include. Departm~nt of Transportation—federal Highway Administration, Federal Avlatlon ~d-rninlstratlorr, Federal Rail road Adml nistratlon, Interstate Commerce Commlsslon; U S. Coast Guard; Department of the Army, Corps of Engineers, and the Federal Power Commwsion. 14 ● Analysis of Laws Governing Access Across Federal Lands

OPTION 2–DEFERRAL OF Under Option 3B land exchanges and CONGRESSIONAL ACTION ON AN realinement of exterior boundaries of conser- ACCESS POLICY vation system units could accommodate access needs by leaving the access routes in This option calls for a specific deferral of public land classification. Natural transpor- access questions involving d-2 designations tation routes and historically used access and remaining Federal lands in Alaska. This would be excluded from d-2 designations by option would assure future congressional re- this approach. Land exchanges could permit view of access decisions, would allow for spe- the use of Federal lands for necessary access cific studies now underway to be completed, routes to non-Federal areas. In some areas, for new studies to be initiated if needed, for realinement or exchange could conflict with final landownership patterns to be deter- the purposes of conservation system designa- mined, and for State transportation planning tion, and might impair the ability of the to proceed. National interest lands would be managing agencies to protect the natural protected while the access policy decisions values of the units. Boundary adjustments were being made. The uncertainties about to accommodate anticipated transportation the availability of land for access purposes routes would have to be based on potential would continue, with delay or abandonment transport needs, and could lead to the selec- of mineral exploration and development action of speculative or controversial routes. tivities in areas without alternative transpor- Possible consequences could be the selection tation. Executive agencies might be reluctant of inadequate routes for mineral production to grant access across Federal lands until the and the failure to provide some areas with final congressional policy decision has been routes to meet future public needs. made. OPTION 3–LIMITED PROVISIONS OPTION 4–ALASKAN FOR ALASKAN ACCESS NEEDS TRANSPORTATION SYSTEM ACCESS PROVISIONS This option has two approaches: Option 3A would provide for a special right-of-way pro- Under this option, congressional authoriza- vision for Alaska conservation systems; Op- tion would be specifically provided for the de- tion 3B would provide for the exclusion of velopment of transportation systems. Three transportation system routes from conserva- approaches are examined: Option 4A, the tion system classification by making minor enactment of a right-of-way provision for boundary adjustments and land exchanges. transportation systems that would be applicable to all Alaska conservation system Option 3A does not authorize approval of lands; Option 4B, the reservation of specific transportation system rights-of-way through transportation corridors through d-2 lands; Federal conservation systems. This approach and Option 4C, the establishment of a new in- would provide non-Federal landowners with stitutional decisionmaking mechanism to re- an assurance of necessary access through view proposals for crossing conservation Federal lands for resource development sub- system lands. ject to regulation by the land managing agencies. It would allow access for non-Federal Under Option 4A an Alaskan transporta- owners requiring passage through d-2 lands, tion system right-of-way provision would pro- especially those whose access needs are not vide for approval of transportation routes in now covered by existing laws. This option the future based on demonstrated need and could compromise the protective intent of specific proposals for transport systems. The conservation systems, particularly parks and Secretary of the managing department would wilderness designations that strictly limit be authorized to approve rights-of-way for conflicting use. major transportation systems through conser- Ch. 1 Executive Summary ● 75 vation systems, which would facilitate the tary of the managing agency when making the movement of mine products to markets, but final access decision. This option would also such approval could compromise the protec- assure the consideration of transportation tive purpose of conservation system designa- needs in land management planning and deci- tions. sionmaking. Under Option 4B future routes through d-2 lands would be limited to the specific cor- OPTION 5–RESTRICTION OF ridors designated by Congress. Other trans- ACCESS ACROSS NATIONAL portation routes would require approval CONSERVATION SYSTEM LANDS under existing access processes. The limited data now available on future transportation This option would limit nonessential access needs make corridor designation difficult. uses of conservation lands to add a further This option could lead to the selection of measure of protection and preservation for routes that might be inadequate for future their natural values. No transportation sys- needs and to later demands for additional tems could be built across Federal conserva- corridors. It could reduce the ability of the tion systems lands without express congres- managing agency to control the harmful ef- sional approval. The option would not impose fects of access uses. a complete ban on crossing Federal lands to reach non-Federal holdings. Existing access Under Option 4C special legislation would rights and the needs of non-Federal land- establish a new decisionmaking mechanism owners to reach surrounded or other lands to review transportation system rights-of-way that have no reasonably available means of applications. The participation of interested access could be accommodated. Existing ac- parties (Federal and State agencies, local cess rights, Wilderness Act access excep- governments, Native Corporations, environ- tions, and established public use rights-of- mental groups, etc. ) in the review of transpor- way would be recognized. The discretion of tation routes across Federal lands would pro- land managers to approve the use of Federal vide the benefit of many views to the Secre- lands for access purposes would be limited.

ACCESS TO NON-FEDERAL MINERAL LANDS IN OTHER STATES

The range of access options developed for patterns. OTA conducted interviews in sev- this report apply to Alaska where access eral States with representatives of the mining across Federal lands is an issue of wide- industry, of local governments, of environ- spread concern. The absence of access op- mental groups, and of other interests. These tions for Federal lands in other States should interviews disclosed no instances where min- not be interpreted as meaning that no prob- eral development on non-Federal land was lems exist outside Alaska. However, based on prevented by the denial of access across Fed- OTA interviews and contractor studies, it ap- eral lands. Most non-Federal mineral areas pears that there are few, if any, non-Federal outside of Alaska are adequately served by minerals access problems in other States be- existing transportation networks. cause of landownership or transportation

UPDATE–ALASKA LANDS LEGISLATION IN THE 96TH CONGRESS

As this report was being prepared for final mentally altered the context in which the publication, the Carter Administration funda- I Alaska Lands debate will proceed in the 96th 16 “ Analysis of Laws Governing Access Across Federal Lands

Congress. By Presidential action under the conservation system classifications and, not Antiquities Act, the management classifica - as in previous debates, whether they should tion of 56 million acres of Federal lands was be protected at all. determined by the creation of 13 new national parks, 2 new national wildlife refuges, While Executive actions creating new na- and 2 national forest monuments. An additional monuments and wildlife refuge with- tional 40 million acres will be added to the drawals have determined the management National Wildlife Refuge System by Secre- classification of most of the lands covered by tarial action under the Federal Land Policy the “d-2” proposals in the 95th Congress, and Management Act. These new parks, ref- other land management issues remain. The uges, and national forest monuments will now task of establishing a land management be managed under the existing laws govern- framework for Federal land in Alaska is not ing these systems. The current situation for yet complete. Many policy issues such as ac- access across these lands is similar to OTA cess, additional wilderness and wild and Option 1 in this report. Thus, for about 96 scenic rivers protection, subsistence hunting, million acres of public land in Alaska, the wildlife management, mineral resources issue before Congress will be whether these availability, and State and Native convey- lands should continue to be protected under ances remain to be settled. 2 Introduction .— . .

Chapter 2.--lNTRODUCTlON

FIGURES

Page

1. ● Land Status Map of Alaska ****** ● . ● ● ● ● ● * ● ● ● ● ● ● ● ● ● 20 2. Metallogenic Provinces in Alaska. . ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● 22 3. Transportation Networks in Alaska ,.. . ● c . . . ● ● ...... 24

4. ●☛ Geographic Study Areas ● ● $ ● ● ● ● . ● ● , ● ● ● ● Q ● 26 Introduction

This report contains information derived liberations about Alaska lands called for by from an Office of Technology Assessment section 17(d)(2) of the Alaska Native Claims (OTA) assessment of the effects of Federal Settlement Act (ANCSA), and particularly to laws, policies, and practices on access the use of Alaska conservation lands for pur- through Federal to non-Federal lands. It poses of access to non-Federal mineral- makes available the results of an analysis, by bearing lands. the OTA staff and its consultants, of the Prior to the Alaska Statehood Act and issues associated with the legal aspects of ac- ANCSA, less than 1 percent of Alaska’s land cess, and presents a range of options dealing was in non-Federal ownership. There will be with access through Alaska lands. changes in the landownership patterns when The issues concerning access through Fed- conveyance of the Native and State lands eral lands differ in their seriousness, their under these Acts is completed, but approx- detail, and their visibility. Based on data col- imately 60 percent or 220 million acres will lected nationwide,l OTA found that Federal remain in Federal ownership (see figure 1). laws, policies, and practices are a factor in The management of these federally owned access decisions in all parts of the country; lands will depend on the land management Federal land management practices are an classification of specific units as designated important issue in the contiguous United by Congress. This report examines the ex- States; and the land management laws and isting laws under which Federal land man- policies governing those Federal lands that agement agencies grant access. A range of are to be placed in conservation systems access options is presented and discussed. under pending Alaska National Interest Lands legislation are primary concerns in Alaska land management issues are com- Alaska. plex. They have been and continue to be the subject of intense public debate. Deciding The information contained in this report is how the land should be used is an important relevant to the current congressional de- national public policy issue, To resolve these land use questions requires balancing many IInformation gathering by public participation inter- values, among which are resource develop- views was important to analyzing Federal laws, policies, and practices affecting access. Appendix C in- ment, social needs, and environmental pro- cludes a discussion of the methodology for OTA’s na- tection. The conflict between providing for tionwide data gathering and analysis effort. Interest access (whether for mining or other pur- groups (nearly 600 individuals) who were contacted by poses) and protecting the primitive values of OTA staff and OTA consultants and contractors are cited in the preface and in appendix C. In addition, the land is part of the larger public debate. FSLUPCA summaries of public input gathered in 1973 Any analysis of the access process (i.e., the regarding disposition of (d)(2) lands were reviewed. terms and conditions of access and how it

19 —— .—

20 “ Analysis of Laws Governing Access Across Federal Lands

f Ch. 2 Introduction ● 21 might be achieved) is, therefore, closely tied date. 4 These interests argue further that ex- to the question of whether or not access ploration and mine development should be across Federal lands for non-Federal mineral part of the economic development planning of development is an appropriate use of the the State and of the Native Corporations and Federal lands. Access, as a value, must be that small mining interests in particular are weighed against conservation and social vulnerable to access restrictions.5 values such as the loss of wilderness, of Conservation interests argue that Alaska is wildlife, and of a subsistence lifestyle. the only State in which there are extensive Among the access issue-related questions areas of land with only minimal intrusion are the following: from human activities. Rural residents, par-

● ticularly Aleut, Eskimo, and Indian citizens, Should an access decision be made now still depend on the resources of the land and considering the incompleteness of in- the waters for food. Thus, continued subsist- formation about mineral potential and ence hunting, fishing, and gathering are es- the location of minerals? sential to many communities. Since arctic ● Should an access decision be made now ecosystems are relatively simple and adjust considering the uncertainties about the poorly to stress, many areas are vulnerable to timing of minerals development? the changes that accompany intensive uses such as mining. Regeneration rates for vege- ● Will facilitating access be sufficient for tation are slow, and wildlife populations of- the development of Alaska’s minerals, or ten require extensive habitats. As a result, will there be other determining factors, the environmental consequences of intensive such as market restraints? land use, especially in the far north, are more Mining interests argue that Alaska lands severe than in other States, and it takes a are important potential sources of domestic much longer time for flora and fauna to supplies of both fuel and nonfuel minerals recover. (figure 2) As the Federal-State Land Use Access for resource development is closely Planning Commission for Alaska (FSLUPCA) related to the improvement and future expan- has stated, “The major national interests to sion of surface transportation systems. In be met in Alaska, apart from natural values, order to develop hardrock mineral resources are those for energy resources and important 2 in some areas, surface facilities will have to minerals.” be constructed that move large quantities of A central issue in the debate on granting bulk ores. Compared to the contiguous United access in Alaska, particularly for the development of hardrock minerals, concerns the 40TA Mineral Resources Workshop, Fairbanks, economics and the timing of mine develop- Alaska, August 1977. This workshop was supported in ment. Some contend that hardrock mining, part by OTA funds and in part by workshop par- under present market conditions, is not likely ticipants. to develop in the near term (between now and 5The possible effects of access restrictions on small 3 1990). Mining interests, however, believe mining interests were identified during interviews in Alaska conducted by Dr. F, J. Wobber, OTA project di- that development is possible before that rector, in January 1977. An OTA Working Paper, The Economic Importance of the Small Miner and Small Mining Businesses in Alaska by C. C. Hawley and J. W, Whitney suggests that the future interests of small miners and prospectors may weII be dependent upon 2“TheD-2Book’’Lands ofNational lnterestinAlaska, land status, mining laws, and reasonable access, Eco- FSLUPCA, May1977,p. 17. nomic benefits from small mining businesses are also 3Bradford H. Tuck, Land Use Planning, the (D~2) discussed, See Analysis of Laws Governing Access Lands and Alaska Resources: Some Economic Consid- Across Federal Lands: Options for Access in Alaska, erations, FSLUPCAStudy No. 22,August1977. Volume 11, Working Papers (OTA M-76). 22 . Analysis of Laws Governing Access Across Federal Lands ,Mo 'V ELEMENTS shale, :~~~~~ AU.Ag.Sb.Hg,A:s Cu,Ag ASSOCIATED TYPE Schtal mcludlng phOsphat-lte gfanochoflle ROCK types, cl'left. rock rnonlOflrTe shale. O",aru Black graywacke-argllll,e. .ndphyilite EXPLANATION (gd~ ASSOCIATED IQiGlam1. igbJGabbfo (OIOpr'llOlttlc (ph) (auJD,verse CATEGORY MAIN .s.o,men,a" Alaska of Provinces 2.-Metallogenic Figure ~ ..:£P»~-' . ,'" Ch. 2 Introduction ● 23

States, Alaska has a limited surface trans- with access. It reflects a more specific con- portation network (figure 3). Most of the set- cern. The Technology Assessment Board ap- tlements throughout the State are connected proved a study to ascertain the problems of by air. But, like access, the expansion of sur- access to non-Federal land arising from Fed- face transport is a controversial issue.’ eral land policies, and the impacts of mod- 7 Settling the uncertainties about an access ifying those policies. This authorization policy decision can facilitate the resolution focused on determining the extent to which of transportation issues. But regardless of Federal policies on the use of Federal lands whether Congress specifically addresses the for access purposes influence hardrock min- topic of transportation requirements across ing on non-Federal lands. the proposed conservation areas, the d-2 While this assessment has been sensitive lands access policy decisions will have impli- to the complex issues of land use and manage- cations for non-Federal landowners. Because ment in Alaska, the tasks have been limited to of the large tracts of Federal lands and be- analyzing Federal laws, policies, and prac- cause of the transportation limitations, re- tices as they affect access through the Fed- source development on non-Federal (State eral domain to non-Federal mineral-bearing and Native) lands will have to take into ac- lands. Issues such as the impact of large count nearby or adjacent Federal holdings. numbers of people who might cross Federal In choosing in which of the various Federal lands if access is unregulated; the social con- conservation systems (Parks, Wildlife Ref- sequences of changes in the rural Alaskan uges, Wild and Scenic Rivers, or National lifestyle with expanded surface transporta- Forests) to place the Alaska lands (the d-2 tion; the reduction of wildlife and wild lands land designations), Congress will decide resources from increased use; and the impact about how these Federal lands will be man- of access on recreation are all of major im- aged. The access authority of the agencies portance in the Alaska Lands debate.8 How- that manage Federal lands (the Park Service, ever, as noted above, the analysis of these the Fish and Wildlife Service, the Forest issues is beyond the scope of this assessment. Service, and the Bureau of Land Manage- ment) is derived from the laws that govern the In response to a full range of views on how various systems. Therefore, the availability Congress might best respond to access issues, of access through Federal lands is dependent OTA has generated a variety of policy alter- on the laws and policies that govern the man- natives for congressional consideration. The agement system in which they are placed. development of these options drew on many sources: OTA staff interviews in Alaska; an Congressional deliberations on access in examination of existing Federal land manage- Alaska range from local concerns about the ment laws (analyzed in this report); an in- surface movement of ore, to statewide con- dependent analysis of five Alaskan geo- cerns about the ramifications of extending graphic study areas by the OTA staff, com- surface transportation systems. These issues plemented by the working papers prepared have implications both for the economy of the State and for the conservation values of the national interest lands. Technology Assessment Board, Summary Minutes, This report is not intended to deal com- March 16, 1976, p. 4. See also correspondence between prehensively with all of the issues associated Senator Ted Stevens and OTA Director Daddario dated March 9, 1976 and assessment proposal dated March 12, 1976. ‘Paul Engelmen and Bradford Tuck with Jerry D. ‘OTA Environmental Resources Workshop, Fair- Kreitner and Demis M, Dooley, Transportation and banks, Alaska, October 1977. This workshop was Development of Alaska Natural Resources, FSLUPCA funded by OTA under a grant to the Wilderness Study No. 32, March 1978. Society. 24 ● Analysis of Laws Governing Access Across Federal Lands

.-c

I I

0 . r . Ch. 2 Introduction Ž 25

by contractors and consultants;9 and discus- and by workshops.ll The workshops were in- sions with congressional staff members. dependently convened by conservation and mining industry representatives. All data In recent years, some interest groups in were then re-evaluated by the OTA staff. Alaska—such as Native Regional Corpora- tions, mining interests, and others—have ex- The analysis of these various study areas12 pressed concern about possible restrictions gives a perspective of the seriousness of the on access for natural resources development. problems associated with access through Some also anticipate that large tracts of Federal lands in Alaska. Based on existing in- Federal conservation system lands will information about the location of mineral de- hibit the expansion of the State’s limited sur- posits, landownership patterns, and trans- face transportation network that might be portation availability, it was found that: needed for minerals development. In response to these concerns, OTA selected five 1. The need for rights-of-way across Fed- areas for study to measure the seriousness of eral lands to reach non-Federal minerals the access problem. is a localized problem, likely to occur in scattered instances. Similarly, the need The five areas selected for intensive for rights-of-way across Federal lands to analysis are (figure 4): the Seward Peninsula, reach existing surface transportation is the Ambler River-Baird Mountains region, likely to occur infrequently. the Yukon-Charley-Forty Mile Rivers drain- Rights-of-way to reach existing transpor- age, the Wrangell-St. Elias Mountains region, 10 tation are most likely to be required in and the Mt. McKinley region. The criteria the near term in the Yukon-Charley- for their selection included past and present Forty Mile Rivers area. Surface trans- mineral extraction, high scenic, wildlife, sub- portation and rights-of-way exist in the sistence, and other values, existence or lack Mt. McKinley, Wrangell-St. Elias, and of surface transportation, adjoining Federal/ Yukon-Charley-Forty Mile areas where non-Federal landholdings, and the perception non-Federal lands are contiguous. Juris- by mining and environmental interests that diction over existing transportation value conflicts involving access were likely to routes in these areas is already in non- occur in the area. Federal hands. The information on study areas was gath- 2. In some regions of Alaska, mineral de- ered by OTA staff who conducted interviews, velopment will necessitate the improvement of existing transportation and the construction of new systems. The lack of ‘Analysis of Laws Governing Access Across Federal transportation modes capable of moving Lands: Options for Access in Alaska, Volume II, Work- large volumes of bulk materials, in com- ing Papers (OTA-M-76). Other unpublished OTA work- bination with local economic or interna- ing papers addressing various questions concerning access in Alaska and other States are cited in appendix C. Iosix candidate study areas were identified during OTA staff interviews in Alaska. Mining and environ- 1lInitial interviews with Federal, State, and private mental groups and the Advisory Panel supported the interest groups in Alaska were conducted by Dr. F. J. choice of the five study areas finally selected by OTA. Wobber, OTA project director, in January 1977 with Despite the interest of many groups over growing min- followup interviews in August and in October 1977. erals development activity in mineralized areas of Based on these interviews, five areas were identified southeastern Alaska, OTA omitted southeastern Alas- and verified as representative of anticipated conflicts ka as a study area. Southeastern Alaska was excluded among mineral resources and other values that might as a study area because OTA staff interviews sug- emerge because of the need to use Federal lands for ac- gested that the area highlighted issues of access to cess to non-Federal land, minerals on Federal, rather than non-Federal land. 12 See Working Papers, supra, note 9. 26 . Analysis of Laws Governing Access Across Federal Lands

/ / (

0 0“ Ch. 2 Introduction ● 27

tional market restraints, could deter the Where existing air and water transporta- future expansion of hardrock mining in tion does not serve bulk mineral production those areas. adequately, new transportation facilities will have to be constructed if resource develop- Some areas that contain Federal holdings isolate non-Federal lands from the ment is to proceed. Elsewhere, improved ac- rest of the State and from each other. In cess to existing transportation, particularly these remote areas, such as the Seward roads, is needed. The availability of rights-of- Peninsula and the Ambler River-Baird way to reach existing transportation systems Mountains region, the construction of or new ones, which may be developed in the new transportation systems—whether a future, is site specific. It depends primarily statewide or regional approach is on the access provisions of existing laws that adopted—will involve long distances. govern the particular land management sys- These systems will probably have to tem involved and the proposed access route cross lands in Federal, State, and Native and use. ownership. Little published information could be found It must be noted that these conclusions about the factors, particularly surface access could be subject to some modification as new use of Federal land, that influence the avail- information on mineral deposits becomes ability of minerals on non-Federal lands. For available, as State and Native selections pro- this reason, a special effort was made to ac- gress, and as Congress decides on the final quire new data (see appendix C). A substan- boundaries of d-2 lands. tial amount of information was obtained 28 . Analysis of Laws Governing Access Across Federal Lands

;

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R d m Ch m e 9 d d gh w ea M ed h A h db dge ad h Ch. 2 Introduction ● 29 through interviews conducted by OTA; addi- This report focuses on two topics: the ac- tional information was obtained by consult- cess provisions of Federal laws, and options ants and contractors. To verify the results of for congressional consideration that deal consultant and contractor interviews, OTA with the process of obtaining access across conducted supplementary interviews to ob- Federal lands in Alaska. tain the disparate views of the various in- Chapter 3 is a summary of the Federal terest groups. laws governing access across Federal lands. A number of sources supplied background Chapter 4 describes and analyzes the access information, which proved to be particularly provisions of the laws that govern Federal useful. The Congressional Research Service land management systems. Chapter 5 ex- provided an issue brief, “Alaska National In- amines Alaskan land laws, such as the terest Lands (d-2] Legislation, ” and a special Alaska Native Claims Settlement Act, the report for OTA entitled, “Access to Minerals: Trans-Alaska Pipeline Authorization Act, and With Emphasis on Private Lands. ” The Fed- the Alaska Statehood Act. Chapter 6 dis- eral-State Land Use Planning Commission for cusses major environmental and land plan- Alaska contributed numerous internal legal ning laws that affect access across Federal memoranda, since published as “Selected land systems. Legal Memoranda, Volumes I and II. ” Back- Chapter 7 presents five access policy op- ground data concerning non-Federal mineral tions for congressional consideration. These resources and transportation access require- range from an extension of the existing ac- ments for hardrock minerals development are cess policies of the Federal land management contained in an OTA Working Paper titled systems to the Alaskan additions to the na- “Assessment of Transportation Access Re- tional conservation systems, through special quirements for Minerals Exploration and Alaskan right-of-way and transportation sys- Mine Development and Operation in Alaska. ” tem provisions, to a statutory restriction of Insights into the environmental and social im- most access uses of conservation system (d-2) pacts of access were provided in a workshop lands. report, “Assessment of Environmental Penalties Introduced by Transportation Ac- The focus of this report is on the legal cess to Alaska Non-Federal Mineral Re- dimensions of access policy, and particularly sources” prepared by the Wilderness So- on those factors that affect hardrock min- ciety (see Vol. 11, Working Papers). Various erals development. Options are presented for contractor and consultant reports (see appen- alternative access provisions that may prove dix C) and consultations with the Advisory useful during congressional deliberations on panel provided additional information. the Alaska Lands legislation. 3 Federal Laws Affecting Access —— -. -. .

Chapter 3.- FEDERAL LAWS AFFECTING ACCESS

Page --- Introduction ● *.*m*ea **9e*e* **** **** **e9****ea *m*** 33 Federal Land Management Systems...... 35

Public Lands ● *e** **** **** *.*me*9 * * * * * * * e.*.**.** 35 National Park System ● *******.*,*,.*.***.******** 37 National Wildlife Refuge System...... 38 National Forest System ● **** **** *s **m******.****** 39 National Wild and Scenic Rivers System ...... 40 National Wilderness Preservation System-...... 42 Management Systems and d-2 Designations...... 43 Federal Laws Relating to Alaska Lands and Mineral

Resources ● *0** **** **9e*** 0*** ***9 eem****e **0* 44

Alaska Statehood Act ● *****9********************* 44

Other Laws ● **** *.8 D********.**.*.**.*****.***** 46 Federal Land Planning and Environmental Laws...... 47 3 Federal Laws Affecting Access

INTRODUCTION

A complex web of laws, regulations, pol- This report analyzes those laws that will icies, and agency practices controls the use of have the greatest influence on decisions re- Federal lands. The availability of access use lating to the use of Federal lands in Alaska of Federal lands for any given mineral re- for access to mineral resources on non-Fed- source development project is dependent on eral lands. For the purposes of this report, these legal controls, as well as on economic the analysis is confined to land in the six and physical factors. Federal land management systems. Lands Decisions on access are rarely simple. Ex- managed by other Federal agencies for pro- cept in unusual circumstances, numerous al- gram purposes, including military reserva- ternatives are available to any party seeking tions, Department of Energy lands, and the surface transportation between two points of National Petroleum Reserve in Alaska, are not discussed. Federal lands do not include non-Federal land. There may be many possi- Indian reservations, which are managed by ble routes, a variety of transportation modes the Government in trust, nor do they include (e.g., train, truck, barge), and a number of dif- lands selected by Alaskan Regional Corpora- ferent protective measures to safeguard tions or villages pursuant to the Alaska other land values. In principle, it is almost Native Claims Settlement Act (ANCSA). always possible to travel between any two non-Federal areas in Alaska without using The analysis of access to non-Federal lands Federal lands for access; airplanes or hel- does not include access to mineral claims on icopters obviate the need to ever set foot on Federal lands, even where the claims have Federal lands. Meaningful access, however, been patented and are in private ownership. generally requires the ability to use interven- It also does not include any consideration of ing Federal lands for the construction of sur- access to ‘‘inholdings’ or other valid oc- face transportation systems adequate to cupancies within a national park or forest. move men, machinery, and materials economically. The ultimate choice of route, Access is an enforceable legal right to use transportation mode, and protective meas- certain lands for a specific purpose. It may be ures will be determined by the legal con- conferred by a special use permit, by an ease- siderations that regulate the use of any af- ment, by a right-of-way or, in certain limited fected Federal lands. conditions, through public use. There are two

33 34 . Analysis of Laws Governing Access Across Federal Lands

major types of access, private and public. Pri- ● What provisions of Federal land man- vate access, on which most of this chapter is agement laws provide access across focused, is a right granted to a specific in- Federal lands for the development of dividual or corporation to use lands; general- minerals on non-Federal lands? ly the grantee is responsible for providing ● whatever facilities are needed to make ac- What terms and conditions are placed cess feasible. Public access involves the con- on such access use of Federal lands? struction of roads and highways by the Fed- ● Do existing laws and policies governing eral, State, or local government. This may in- the Federal land management systems volve condemning land within one of the Fed- provide rights-of-way across the public eral land management systems and transfer- lands and national conservation systems ring it to the control of the Department of in Alaska? Transportation. The laws governing public access are covered in the review of section ● What other Federal laws influence ac- 4(f) of the Department of Transportation Act cess across Federal lands? and the National Forest Transportation Sys- tem. ● What is the impact of Federal land planning and environmental laws on access? The analysis of Federal laws affecting access to minerals on non-Federal lands at- ● What effect does the presence of feder- tempted to answer the following questions, ally managed areas have on mineral ac- which are relevant to policy decisions on the cess and mining activities in surrounding disposition of Alaska National-Interest Lands: areas?

-~ti~.3-

Photo Credit: The Alaska Coalition

View of Mt. McKinley from the north on the road near the Kantishna mining district Ch. 3 Federal Laws Affecting Access ● 35

To answer these questions, three cate- Settlement Act, the Trans-Alaska Pipe- gories of Federal laws that affect access line Authorization Act, the Alaska Natu- were examined. They are: ral Gas Transportation Act of 1976, and the Naval Petroleum Reserves Produc- 1. Federal Land Management Laws— tion Act of 1976. Laws and regulations providing for access across units of the six Federal land Federal Land Planning and Environ- management systems: public lands, Na- mental Laws—These laws can affect the tional Park System, National Wildlife availability of access through various Refuge System, National Forest System, procedural and substantive require- National Wild and Scenic Rivers System, ments. The report analyzes the impact and National Wilderness Preservation on access of the National Environmental System. Policy Act of 1969, section 4(f) of the De- partment of Transportation Act, the En- 2. Federal Laws Relating to Alaska Lands dangered Species Act, the Clean Air Act, and Mineral Resources-The Alaska the Clean Water Act, and the Coastal Statehood Act, the Alaska Native Claims Zone Management Act.

FEDERAL LAND MANAGEMENT SYSTEMS

Each Federal land management system has are specifically authorized for “roads, trails, its own rules governing access for mineral de- highways, railroads, . . . airways, or other velopment on non-Federal lands. Two factors means of transportation . . . or such other determine the terms and conditions placed on necessary transportation or other systems or access use of Federal lands: (1) the classifi- facilities which are in the public interest and cation of the affected land, and (2) the pro- which require rights-of-way over, upon, un- posed use for which access is needed. Land der, or through such lands. ” This compre- managers for every system, including the Wil- hensive authority provides a legal basis for derness System, have statutory authority to rights-of-way over public land areas for ac- grant some rights-of-way. The availability of cess to minerals on non-Federal lands or for such grants and the nature of any conditions the construction or improvement and expan- reflect the general purposes for which the af- sion of transportation systems. There are two fected unit is managed. limitations on this general availability of rights-of-way: . BLM public lands wilderness areas.— PUBLIC LANDS The Secretary of the Interior may allow access use of public lands that are part The Bureau of Land Management (BLM) of the National Wilderness Preservation administers the public lands. The Secretary System only as provided in the Wilder- of the Interior has comprehensive authority ness Act of 1964. All access provisions under Title V of the Federal Land Policy and of the Wilderness Act applicable to na- Management Act of 1976, (commonly known tional forest wilderness areas are ap- as the BLM Organic Act) to grant rights-of- plicable to designated wilderness areas way over the public lands, except lands in managed by the BLM. The exceptions designated wilderness areas, Rights-of-way relevant to access for purposes of non- 36 ● Analysis of Laws Governing Access Across Federal Lands

Federal minerals exploration and devel- —Access to valid mining claims and opment are: other valid occupancies wholly within —Existing private rights. a wilderness area by means customarily enjoyed in other areas similarly —Continued use of aircraft and motor- situated. boats where use predates wilderness designation. —Presidentially granted exceptions for facilities, including roads, in the na- —Access to State and private lands tional interest. completely surrounded by a wilderness area or exchange of the sur- —Any other exceptions expressly pro- rounded lands for other Federal land vided by Congress for specific wilder- of equal value. ness areas.

c“.- ““ ‘ “a

Bush plane, a primary means for transportation of people and supplies in rural Alaska Ch. 3 Federal Laws Affecting Access ● 37

. Public lands in wilderness study clas- tional Park Service for the purposes of pres- sification.—Section 603 of the BLM Or- ervation of natural and historic values of ganic Act requires that the BLM inven- park areas for the enjoyment of present and tory all roadless public land areas of future generations. The Park Service is 5,000 acres or more and roadless islands vested with broad discretionary authority to for wilderness potential. Those areas control activities and uses within the national with wilderness potential are to be clas- parks. There is no statutory provision ex- sified as wilderness study areas and pressly authorizing rights-of-way through managed to preserve those values until park areas for access to non-Federal lands. completion of administrative review and While the absence of a specific provision congressional consideration. While authorizing grants of rights-of-way across na- rights-of-way are not prohibited in study tional parks does not bar such use, it does not areas, section 603 imposes restrictions provide assurance to non-Federal land- on the exercise of the right-of-way au- holders who may need to cross park lands. thority by limiting the Secretary’s dis- This lack of any assurance of access and of cretion to approve any use that conflicts the terms and conditions of rights-of-way with or impairs wilderness values. could deter potential developers. Non-Federal owners must rely on the gen- NATIONAL PARK SYSTEM eral discretionary management authority of the Secretary and individual park super- The National Park System is managed by intendents for access through park lands. the Secretary of the Interior through the Na- Park regulations issued under this authority

Phofo Credit. The A/aska Coa//t/on Camping, Wrangell-St. Elias Region 38 ● Analysis of Laws Governing Access Across Federal Lands provide that special use permits may be is- utility rights-of-way may not be used for other sued for commercial and other use of existing forms of access to non-Federal lands or for park roads for access to private lands within transportation systems. or adjacent to a park for which other means of access are not otherwise reasonably avail- NATIONAL WILDLIFE REFUGE able. Certain public lands statutes that are applicable to the National Park System au- SYSTEM thorize rights-of-way through park areas for The National Wildlife Refuge System is electric power, communications, and water managed by the U.S. Fish and Wildlife Serv- drainage and irrigation systems and facil- ice. The Secretary of the Interior has ample ities. The use of the right-of-way must be com- authority to grant rights-of-way across units patible with the public interest and with the of the National Wildlife Refuge System for purposes of the park system. These laws may access to non-Federal lands or for transpor- provide rights-of-way through parks for util- tation systems where such use does not con- ity systems associated with mineral resource flict with the management purposes of a par- development on non-Federal lands. These ticular area. The National Wildlife Refuge

Snowy Owl

Alaska Red Fox

Photo Cred/ts The Alaska Coal/tin?

Golden Eagle Alaska Brown Bear — McNeil River Ch. 3 Federal Laws Affecting Access .39

Administration Act authorizes the Secretary ● Access uses of refuge system compo- of the Interior to permit the use of lands in the nents of the National Wild and Scenic National Wildlife Refuge System for any pur- Rivers System are governed by laws ap- pose, including access. Section 4 of the Act plicable to the National Park System specifically provides that rights-of-way consistent with purposes of the Wild and through refuge areas may be granted for any Scenic Rivers System. purpose, “such as . . . powerlines, telephone ● Access uses of Refuge System Wilder- lines, canals, ditches, pipelines, and roads,” ness areas may be granted only as recog- where such uses are determined to be com- nized in the Wilderness Act and are thus patible with the purpose for which the refuge limited to those individual exceptions areas are established. “Compatible” means specifically provided by Congress and to that the requested right-of-way or use will not existing private rights. The exceptions interfere with or detract from the purpose for applicable to national forest and BLM which units of the refuge system are estab- wilderness areas do not apply to refuge lished. wilderness areas. Use of refuge system Holders of rights-of-way are required to wilderness areas for transportation sys- pay the fair market value of the right-of-way. tems and facilities must have express Net proceeds from right-of-way grants are de- congressional approval. posited into the Migratory Bird Conservation Fund to be used for land acquisition. Section NATIONAL FOREST SYSTEM 4 of the Refuge Administration Act largely supplants other right-of-way provisions ap- The national forests are managed by the plicable to the National Wildlife Refuge Sys- Forest Service under the mandate of the tem. There are two limitations on the avail- Multiple-Use Sustained-Yield Act of 1960. ability of rights-of-way across refuge units: The Secretary of Agriculture has broad dis-

. Phofo Crecflf OTA Staff

Tugboat towing logs to mill, Southeast Alaska 40 . Analysis of Laws Governing Access Across Federal Lands cretionary authority to allow the use of Forest torboats in areas of national forest wil- System lands, except wilderness areas, for derness subject to regulation by the access to non-Federal mineral areas and for Secretary; transportation systems. —Rights necessary to provide adequate ac- Express statutory authority for rights-of- cess to State or private lands completely way across national forest lands for access surrounded by a national forest wilder- purposes is found in Title V of the Federal ness area (or exchange of these lands for Land Policy and Management Act of 1976 other Federal lands); and in the Act of October 13, 1964, as —Ingress and egress to valid mining claims amended, authorizing development of the Na- or other valid occupancies wholly within tional Forest Transportation System. Na- a forest wilderness area by means cus- tional forest components of the National tomarily enjoyed with respect to other Wilderness Preservation System and the Na- areas similarity situated; tional Wild and Scenic Rivers System are —Presidential authorization of other facil- managed under the laws and regulations ap- ities needed in the public interest “in- plicable to those systems in addition to cluding road construction” or use where general laws governing the National Forest he determines that such use “will better System. Access uses of these areas are serve the interest of the United States limited. The Federal Land Policy and Man- and the people thereof” than will its agement Act authorizes rights-of-way across denial; and forest lands, except designated wilderness —Any other exception expressly provided areas, for roads, highways, railroads, and by Congress for specific wilderness other transportation systems and facilities. areas. The Act of October 13, 1964, as amended, authorizes grants of temporary or permanent NATIONAL WILD AND easements for road rights-of-way over national forest lands. Forest service regulations SCENIC RIVERS SYSTEM implementing provisions relating to the Na- tional Forest Transportation System indicate The National Wild and Scenic Rivers Sys- a policy of coordinated planning with con- tem was established so that certain rivers sideration of the transportation and resource with outstandingly remarkable scenic, recreational, fish and wildlife, and other similar development needs of surrounding commu- values would be “preserved and protected in nities. The Secretary of Agriculture may approve rights-of-way and other access use of a free-flowing condition for the benefit of forest system components of the National present and future generations. ” The system Wild and Scenic Rivers System under laws includes both federally and State designated applicable to the forest system provided that rivers. Federal wild and scenic rivers are any conditions placed on grants of such ease- managed by the land management agency ments must be related to the policies and pur- that had responsibility for the river before its poses of the Wild and Scenic Rivers Act. designation. The classification of rivers as Rights-of-way through designated wilderness wild, scenic, or recreational is made accord- areas in the National Forest System may be ing to certain characteristics, including their approved only as provided in the Wilderness accessibility by road; wild rivers are the least Act. The Wilderness Act recognizes the fol- accessible, scenic rivers are more accessible, lowing exceptions relevant to minerals ac- and recreational rivers are the most accessi- cess to non-Federal areas and transportation ble. Rivers are to be managed to preserve the systems: values that led to their initial designation and classification. Therefore, any use that might —Existing private rights; be detrimental to these values could be —Preestablished use of aircraft and mo- denied. .

Ch. 3 Federal Laws Affecting Access ● 41

The access provision of the Wild and Rights-of-way for components adminis- Scenic Rivers Act distinguishes between tered by the Secretary of Agriculture are those river components managed by the Sec- issued under laws relating to the National retary of the Interior and those managed by Forest System. The Secretary of Agriculture the Secretary of Agriculture. has ample authority to grant rights-of-way over forest system component rivers under Title V of the Federal Land Policy and Man- Rights-of-way across all wild and scenic agement Act. There is additional authority to rivers administered by the Secretary of the grant easements for roads and trails under Interior are issued in accordance with the laws relating to development of the National laws applicable to the National Park System Forest Transportation System. Any condi- regardless of whether the river is part of the tions placed on the issuance of a right-of-way National Park System, the National Wildlife or easement must be related to the purposes Refuge System, or the public lands. For these of the Wild and Scenic Rivers Act. When a rivers, there is no statutory provision ex- river is also managed as part of the Wilder- pressly authorizing rights-of-way for access ness System, the more restrictive provisions to non-Federal lands. apply in case of any conflict.

H?ofo Credit Nat/ona/ Park Serv/ce The Charley River meanders through a park-like setting 42 ● Analysis of Laws Governing Access Across Federal Lands

NATIONAL WILDERNESS and stringent. The general policy for use of PRESERVATION SYSTEM wilderness areas is: Except as specifically provided for in this The National Wilderness Preservation Act, and subject to existing Private rights, tem was created to provide the whole Nation there shall be no commercial enterprise-and with “the benefits of an enduring resource of no permanent road within any wilderness wilderness. ” Congressionally designated wil- area designated by this Act and, except as derness areas in national parks, forests, wild- necessary to meet minimum requirements for life refuges, and public lands are managed the administration of the area for the pur- under special rules “for the use and enjoy- pose of this Act (including measures required in emergencies involving the health ment of the American people in such a man- and safety of persons within the area), there ner as will leave them unimpaired for future shall be no temporary road, no use of motor use and enjoyment as wilderness. ” Provisions vehicles, motorized equipment or motor- of the Wilderness Act of 1964, and the regu- boats, no landing of aircraft, no other form of lations thereunder, which control activities mechanical transport, and no structure or in- and uses in wilderness areas, are protective stallation within any such area.

Photo Cred/f: The A/aska Coa//t/on

The Brooks Range near the Arrigetch Peaks Ch. 3 Federal Laws Affecting Access s 43

Access uses of wilderness areas recog- ness areas for projects and facilities in nized in the Wilderness Act are limited to the the national interest; following: f. Adequate access rights for State and a. Preexisting private rights; private lands completely surrounded b. Access routes and facilities for wilder- by wilderness areas in national forests ness recreation and management pur- or public lands; poses; g. Access to valid mining claims and other c. Emergency purposes; valid occupancies wholly within a na- d. Established use of motorboats and air- tional forest or public lands wilderness craft where such use predates wilder- area by means that are currently or ness designation—subject to regulation customarily enjoyed in similarly situ- by the management agency; ated areas; and e. Presidential authorization of the use of h. Special provisions applicable to specif- national forest and public lands wilder- ic wilderness areas.

MANAGEMENT SYSTEMS AND d-2 DESIGNATIONS

The final congressional designation of ad- Such use must be in conformance with the ditions to national conservation systems purposes of the park system. There is no stat- called for in section IT(d)(Z) of ANCSA will utory provision expressly authorizing rights- reduce some of the uncertainties concerning of-way across park areas for access to non- access use of Federal lands in Alaska. The Federal lands or for transportation systems. terms and conditions for obtaining access Rights-of-way across National Wild and across some conservation units—forests, ref- Scenic Rivers System components managed uges, and public lands—can be anticipated by the Department of the Interior are issued based on existing laws and policies. under laws applicable to the National Park System regardless of the managing agency. The public lands and the National Forest Access uses of wilderness areas is highly re- System have broad and comprehensive right- stricted and subject only to the exceptions of-way provisions. Consequently, lands in recognized in the Wilderness Act. The wilder- those two systems, with the exception of wil- ness review required by section 603 of the derness study areas and designated wilder- BLM Organic Act raises some uncertainty ness areas, are the most available Federal about the future availability of access use of lands for access to non-Federal mineral lands d-l lands (those public lands currently with- and for construction of transportation routes. drawn under section IT(d)(l) of ANCSA that Access use and rights-of-way across refuge will remain after Native conveyances, State system lands may be allowed in the discretion selections, and congressional designation of of the managing agency if the proposed use is conservation system additions under section compatible with the purposes of the refuge 17(d)(2)). and if the applicant agrees to pay the fair market value for the use. The BLM has decided that wilderness review of public land roadless areas in the low- Access use of national park lands rests er 48 States will have priority. The wilder- with the management discretion of the Secre- ness inventory of Alaska public lands will be tary and the individual park superintendent. deferred until after congressional action on 44 ● Analysis of Laws Governing Access Across Federal Lands

Alaska National Interest Lands and settle- It is difficult to ascertain what effect these ment of Native selections and conveyances possible future classifications will have on under ANCSA. This delay will allow an op- the availability of public lands in Alaska for portunity for State and Native access needs access purposes. The public land inventory to be defined. It will also permit decisions on and wilderness review procedures, however, inventory and use classification of remaining provide a mechanism for the State, Native public lands to include a consideration of the Corporations, or other parties to present any impacts of such classifications on the pro- need to use the proposed wilderness areas tected values of new and existing conserva- for access. Moreover, BLM wilderness areas tion system units. As a result of BLM wilder- will be subject to all the exceptions ap- ness reviews, additional Federal lands may plicable to National Forest Wilderness areas, be placed under wilderness protection in the thus even after wilderness designation, sev- future. This protection will restrict access eral classes of access use are preserved. uses of those areas.

FEDERAL LAWS RELATING TO ALASKA LANDS AND MINERAL

Until statehood, over 99 percent of all land dependent on federally financed construction in Alaska was in Federal ownership. Al- projects and military bases, could not support though public land laws encouraging dispo- the costs of self-government from resources sition, such as the Homestead Acts, applied to on which revenue could be generated. Sim- Alaska lands, they did not operate to transfer ilarly, ANCSA’s grant of subsurface rights to significant amounts of public land to private profit-making Native Regional Corporations ownership. was one of several provisions designed to ensure a viable economic future for Alaska Two laws—the Alaska Statehood Act and Natives. ANCSA—will transfer more than 148 million acres from Federal ownership. ANCSA also provides a framework for the reclassification ALASKA STATEHOOD ACT of Federal lands in Alaska. Three other laws have established special rules for the use of The Alaska Statehood Act, enacted in some Federal lands in Alaska in connection 1959, contains several important provisions with three major energy development proj- that changed the previous patterns of land- ects. ownership and control in Alaska. The State An analysis of the Alaska Statehood Act was permitted to select: and ANCSA indicates that development of —102,550,000 acres of statehood land land-based resources, including minerals, grants from vacant, unreserved, and un- was one of the purposes behind the unprec- appropriated public lands; edented grants of Federal lands to the State and to Alaska Natives. The House report ac- —400,000 acres of vacant, unreserved, companying the Alaska Statehood Act indi- and unappropriated forest lands (with cates that the grants of lands and revenues approval of selection by the Secretary of from lands were designed to remove a poten- Agriculture) for community expansion tial impediment to the operation of an effec- and recreation purposes; and tive State government. There was concern —400,000 acres of vacant, unreserved and unappropriated public lands for com- that Alaska. which has always. been heavily. Ch. 3 Federal Laws Affecting Access ● 45

munity centers and recreation areas right to select 44 million acres of unreserved (with approval of selection by the Secre- Federal lands, and (2) distributions from a tary of the Interior). Native fund of $962.5 million. The Act confirmed prior Territorial grants The Act authorizes the establishment of 13 of university, mental health, and school lands profit-making Native Regional Corporations. of over 1 million acres. It also transferred The Regional Corporations administer distri- miscellaneous parcels of Territorial govern- butions from the Native fund, hold title to ment property to the State and gave the State lands not specifically apportioned to Village title to 35 million to 40 million acres of sub- Corporations, and hold subsurface rights to merged lands. all selected lands. Village Corporations hold title to surface rights in lands selected in and The State received full mineral rights in all around villages and receive disbursements of lands granted or confirmed under the Act. All funds and other revenues from the Regional State reconveyances of these lands must con- Corporations. tain a reservation to the State of the mineral rights and the right-of-access to extract them. The 44 million acres were apportioned ac- Alaska was permitted to select Federal lands cording to a complex formula. Village Cor- that were leased or in production under the porations were allowed to select surface Mineral Leasing Act of 1920 and to succeed rights to approximately 22 million acres of to all rights of the Federal Government. In ad- land in and around existing villages on the dition, the State received the following royal- basis of population. Regional Corporations ty rights on lands that remained in Federal received proportional shares of all remaining ownership: lands. All subsurface rights (including min- —The right to receive 521/i percent of the eral rights) are vested in the Regional Cor- leasing proceeds from the Mineral Leas- porations. ing Act of 1920 in lieu of participation in The grant of mineral rights to the profit- the reclamation fund. (This grant was in making Regional Corporations indicates an addition to the 37½ percent of leasing intent that those resources might be devel- revenues paid to all public land States oped, The Alaska Native Fund is also depend- for public road and educational pur- ent on the development of mineral resources; poses. Alaska thus received the right to payments of a 2-percent overriding royalty on 90 percent of all leasing profits from all mineral-leasing revenues from State and public lands.) Federal lands (other than the National Petro- —The right to receive 90 percent of Fed- leum Reserve) are to provide $500 million. eral revenues from the operation of Gov- ernment coal mines and coal leases Section 17 of the Act established the under the Alaska Coal Leasing Act of Federal-State Land Use Planning Commission 1914. for Alaska. It is to identify necessary easements across lands selected by Regional and In addition the State was given the right to Village Corporations. The Secretary of the In- 5 percent of the net proceeds from the sale of terior is to reserve such easements. No provi- public lands in Alaska for education pur- sions were made for the reservation of ease- poses, and 70 percent of the net proceeds of ments across Federal lands to assure access the Pribilof Islands fur trade. to Native lands. The subsequent order reserving extensive easements is the subject of The Alaska Native Claims Settlement Act litigation. A tentative settlement has been extinguished all Native claims to lands and reached. hunting and fishing rights based on aboriginal title or use. In exchange, the Alaska In- Section 17(d) of the Act provided for the dians, Aleuts, and Eskimos received: (1) the reclassification of all Federal lands in the 46 ● Analysis of Laws Governing Access Across Federal Lands

State. Under section 17(d)(2), the Secretary opment of energy resources in Alaska are ex- was authorized to withdraw 80 million acres amined. The Trans-Alaska Pipeline Act au- of land for addition to or creation of national thorized an expedited procedure for granting parks, forests, wildlife refuges, and wild and a right-of-way for the Alaska oil pipeline. scenic rivers. To protect the national interest Judicial and administrative review of licens- in these lands, they were withdrawn from all ing and environmental proceedings were lim- forms of appropriation under the public land ited. The Act also required a reservation for laws and the mining and mineral-leasing additional rights-of-way for compatible uses laws, and from selection by the State under on or adjacent to the pipeline right-of-way. the Alaska Statehood Act and by Native Re- The Alaska Natural Gas Transportation Act gional Corporations under ANCSA. The au- of 1976 provided a similar expedited pro- thority for these withdrawals expired in De- cedure for the consideration of several pro- cember 1978. The Secretary was also au- posals to construct a natural gas pipeline. thorized to withdraw other lands to protect These expedited procedures provided for the public interest under the authority of sec- coordinated review of right-of-way application ii’(d)(l); these withdrawals did not affect tions covering several different management the right of Village Corporations, Regional systems. The Naval Petroleum Reserve Pro- Corporations, or the State to make land selec- duction Act transferred jurisdiction over and tions within and around existing Native vil- management of the Naval Petroleum Re- lages. serves in Alaska to the Department of the In- OTHER LAWS terior. No provision was made for any right- of-way over the Reserve. The Secretary was In addition, three other laws relating to the directed to make a study of the nonpetroleum role of Federal land management in the devel- value of the reserve within 3 years.

Photo Credit: The Alaska Coalition

Construction of the Trans-Alaska Pipeline Ch. 3 Federal Laws Affecting Access ● 47

FEDERAL LAND PLANNING AND ENVIRONMENTAL LAWS

The report also analyzes a set of Federal transportation, must comply with applicable land planning and environmental laws that standards; second, the mineral resource proj- have, or were thought to have, an influence ect for which access is granted must comply on the availability of access for mineral re- with the Acts before a Federal land manager source development. The laws have varied ef- may grant a permit; third, the Clean Air Act fects. One, the Coastal Zone Management Act places stricter standards on projects in and (CZMA), requires the establishment of com- near certain highly protected Federal conser- prehensive land use planning. Two of these vation units (although the number of such laws, the Endangered Species Act and sec- units in Alaska is less than commonly per- tion 4(f) of the Department of Transportation ceived and National Interest Lands legisla- Act, place substantive constraints on the action cannot create any of the most highly pro- tivities of Federal land managers. tected areas). NEPA requires that an environmental impact statement (EIS) must be pre- The National Environmental Policy Act of pared for major Federal actions significantly 1969 (NEPA) places procedural requirements affecting the quality of the human environ- on Federal land managers that often apply ment, and that Federal agencies consider the during decisionmaking on access requests. environmental effects of and possible alter- The Clean Air Act and the Clean Water Act natives to a proposed action, consult with influence access in several ways: first, the other agencies, and solicit public comment. access project itself, i.e., construction and NEPA imposes no specific environmental

Photo Cred/f: The Alaska Coa//r/on North Slope tundra — late summer standards or direct restraints on access to cludes all possible planning to minimize harm non-Federal minerals. It does, however, exert to the area involved. By restricting the ex- substantial indirect influence since Federal penditure of Federal funds, section 4(f) limits land management agencies must comply with the availability of lands owned by Federal, NEPA in their review of requests for rights- State, or local governments and some private- of-way and other permits. Applicants may be ly owned historic sites, for transportation sys- required to pay the costs of preparing an EIS tems which, in some instances, could be nec- if approval is determined to be a major essary for mineral resource development. Federal action. Lands in the National Park System, the Na- tional Wildlife Refuge System, and the Na- Section 4(f) of the Department of Transpor- tional Wild and Scenic Rivers System are tation Act of 1966 bars the use of Federal clearly within the protections of section 4(f). funds for any transportation project that uses Some public lands managed by the BLM and any land of National, State, or local signif- National Forest System lands are also subject icance from any public park, refuge, or recre- to the restrictions of section 4(f) if the lands ation area, or from any historic site unless are actually used or proposed for park, rec- the Secretary of Transportation finds that reation, wildlife protection, or historic pur- there is no prudent and feasible alternative to poses, or are under study for wilderness or such use and that the proposed project in- wild and scenic rivers designation. Ch. 3 Federal Laws Affecting Access ● 49

Section 7 of the Endangered Species Act re- areas. Other large national parks, monu- quires that all Federal agencies ensure that ments, and refuges are Class 11 areas and their actions do not jeopardize the continued cannot be redesignated to Class III status. existence of any endangered or threatened There are two such areas in Alaska. It is an- species or result in the destruction or mod- ticipated that most Alaska National Interest ification of a critical habitat. Compliance Lands will fall into this Class 11 subcategory with the Act requires that any agency con- on enactment of d-2 legislation. The authority sider the effects a proposed action may have to redesignate the classification of clean air on a protected species or habitat, and consult areas, with the exceptions noted above, is with the Secretary of the Interior to deter- vested in State governments. Federal land mine whether any harm may result and what managers have only an advisory role in the steps may be taken to minimize any risk. In redesignation process. areas that are home to unique and endangered species, the Act may impose substan- Preconstruction review of new sources and tial and additional constraints on Federal modification of existing sources are carried land management agencies in the issuance of out at the State level. There are four types of rights-of-way across Federal areas. In other preconstruction review: (1) to assure the areas where there are few or no endangered maintenance of national ambient air quality species, the compliance requirements would standards; (2) to assure compliance with ap- have a lesser effect on the actions of Federal plicable Federal new source standards; (3) to land managers. prevent significant deterioration in clean air areas; and (4) to assure compliance with the The Clean Air Act establishes national special rules that apply to new sources of standards to limit the presence of five com- pollution in areas that do not meet the na- mon air pollutants that present known risks tional standards. In the last two instances, to human health and safety. Direct Federal preconstruction review may impose severe controls apply only to certain major new fa- controls on allowable new construction or, cilities with the potential to emit large quan- perhaps, prevent it altogether. tities of these pollutants; all other polluters are regulated by the States under plans de- The Clean Air Act requires that State air signed to assure that the five national stand- pollution control agencies consult with the ards are met. appropriate Federal land manager on all applications for permits for major emitting facil- The Act imposes strict controls on the con- ities that may affect air quality in a Federal struction of new facilities in areas where air Class I area. Applicants for rights-of-way quality is better than the national standards, over Federal land management system lands in order to prevent significant deterioration must agree to comply with State and Federal of existing air quality. There are three air quality standards, not only in activities classes of “clean air” regions: Class I areas, associated with the use of the right-of-way, where minimal additional pollution is al- but also in their operations in non-Federal lowed; Class 11 areas, where moderate areas. amounts of new pollution are permitted; and Class III areas, where pollution levels can be The Clean Water Act imposes Federal con- increased to the national standards. The trols on all forms of water pollution. Every Clean Air Act Amendments of 1977 classified “point source” of pollution, i.e., any enter- most clean air regions, including both Federal prise that discharges pollutants into rivers, and non-Federal lands, as Class 11. Some ex- lakes, or streams through pipes, conduits, isting Federal parks and wilderness areas channels, and the like, is required to obtain a are designated mandatory Class I areas (in- discharge permit that prescribes allowable cluding one park and three wilderness areas levels of pollution. Some mines are regulated in Alaska); no d-2 lands are mandatory Class I as sources. “Nonpoint sources” of pollu- 50 ● Analysis of Laws Governing Access Across Federal Lands tion—including the runoff from roads and States participating in the CZMA program from agricultural, construction, and some must develop a plan for managing activities in mining activities, are regulated at the State the coastal zone. The plan must include a def- and local level pursuant to local water pollu- inition of permissible land and water uses in tion control plans. the coastal zone, proposals for protecting areas of unique, scarce, fragile, or vulner- The Act establishes a series of deadlines able natural habitat, and a process to ensure for progressively more stringent controls on that the State adequately provides for “con- point sources of pollution. It requires the sideration of the national interest” in the utilization of various levels of pollution con- siting of certain energy and resources devel- trol technology, By 1979, all point sources opment facilities, including associated trans- must be using the “best practicable control portation systems. technology” and between 1983 and 1987 they Once the State has adopted a plan that is must begin applying the “best available tech- approved by the National Oceanic and At- nology” for various classes of pollutants. The mospheric Administration, it has a major ef- Environmental Protection Agency develops fect on Federal activities in the coastal zone. guidelines on an industry-by-industry basis. Federal activities must be “consistent to the maximum possible extent” with the State Effluent standards have been promulgated plan. This provision has a fourfold effect: for some mining activities including, for example, placer mines that use gravity separation to extract precious metals. 1. Direct Federal activities in the coastal zone, including land management poli- More stringent controls may be applied cies, must be consistent; where pollution discharges threaten Federal 2. Federal development projects in the zone and State water quality standards for spe- must be consistent; cific waterways. An antidegradation policy 3. Applicants for Federal licenses and per- protects the water quality of streams and mits (such as right-of-way permits) must rivers that already have clean water. The an- secure State certification; and tidegradation program applies to both Fed- eral and non-Federal areas. Right-of-way ap- 4. Applicants for Federal assistance must plicants must agree to comply with Federal include the views of the State manage- and State water quality standards and to ob- ment agency with their proposals. tain all necessary permits. This compliance requirement not only applies to activities A State plan will not be approved unless associated with use of the right-of-way such the State demonstrates that it has the au- as road-building and bridge construction, but thority to control land and water uses in the also with the conduct of mining operations on coastal zone. The State may do this by direct non-Federal sites. land and water use regulation, through local implementation of State established stand- The Coastal Zone Management Act pro- ards subject to State administrative review, vides incentives for States to develop com- or by State authority to disapprove all local prehensive land management programs for land and water use regulation. Transporta- ‘ their coastal areas. Participating States tion and mining activities in the coastal zone receive Federal grants to develop and ad- must comply with State coastal zone re- minister their programs, as well as Federal quirements. aid to offset the impact of energy development activities. All eligible States have The following chapters describe the re- chosen to participate. To date, only two State quirements for obtaining rights-of-way programs have been approved. through the major Federal land management Ch. 3 Federal Laws Affecting Access “ 51 systems for purposes of mineral resource rent as of May 1978, and, in some instances, development on non-Federal lands. Several more recent material has been added. This laws relating to Federal lands in Alaska are report was structured as both a technical also included as background information. The reference for Congress in its consideration of major Federal land planning and environmen- access issues in Alaska Lands legislation and tal laws affecting right-of-way applications as a primer on rights-of way across Federal are also discussed. All references are cur- lands for mineral resource development.

Photo Credft The Alaska Coa//t/on

Offshore Oil Production Rig, Cook Inlet . —

4 Federal Land Management Systems — -. . .

/ Chapter 4.- FEDERAL LAND MANAGEMENT SYSTEMS “

Page Page Public Lands ...... o..... o 55 Conflict Between Access Provisions 80 The BLM Organic Act ...... 56 Roadless Area Review...... 81 Purposes for Which Rights-of-Way Footnote References for National

May Be Granted...... 56 Forest System ● 81 Information Requirements ...... 57 National Wild and Scenic Rivers Environmental Impact Assessment. 57 System ● eOm**e 83 Extent of Rights-of-Way ...... 58 Administration of the System . . . . . 83 Right-o f-Way Fees...... 58 River Studies ...... , . . . . 84 Financing Transportation Projects. 58 Protections Afforded Wild and Terms and Conditions ...... 59 Scenic Rivers...... 85 Suspension or Termination ...... 60 Rights-of-Way ...... 87 Other Conditions ...... 60 Footnote References for National BLM Wilderness Study ...... 60 Wild and Scenic Rivers System . . . 88 Existing BLM Right-of-Way National Wilderness Preservation Regulations ...... 63 System ...... 89 Footnote References for Public Lands 64 Designation of Wilderness Areas. . 90 National Park System ...... 67 Activities in Wilderness Areas. . . . 91 General Authority for Rights-of- Park Wilderness ...... 94 Way...... 67 Wildlife Refuge Wilderness ...... 94 Statutes Providing forRights-of- BLM Wilderness ...... 95 WayThroughNationalParks . . . 69 Forest Wilderness...... 95 Applications for Rights-of-Way. . . . 71 Wild and Scenic Rivers Wilderness 96 Rights-of-Way for Highways...... 71 Management of Wilderness Study Footnote References for National Areas...... 96

Park System...... ● ...... 72 Footnote References for National National Wildlife Refuge System. . . . 73 Wilderness Preservation System. . 97 Rights-of-Way Under Section 4 of the Refuge Administration Act . . 74 Rights-of-Way Under Other Statutes ...... 74 Rights-of-Way for Transportation TABLES Systems ...... 75 Applications for Rights-of-Way. . . . 75 Page Footnote References for National 2. Component Rivers of the National Wildlife Refuge System ...... 77 Wild and Scenic Rivers System. . 84 National Forest System...... 78 3. Rivers Designated as Potential The BLM Organic Act...... 78 Additions to the National Wild The National Forest Transportation and Scenic Rivers System ...... 85 System...... 79 4. Wilderness Areas in Alaska...... 89 Federal Land Management Systems

LANDS

The Bureau of Land Management (BLM) of rently withdrawn for potential designation as the Department of the Interior administers part of national conservation systems under the Nation’s public lands—those federally section 17(d)(2) of ANCSA. On final congres- controlled lands that have not been placed in sional disposition of the (d)(2) national in- any other specific land management system. terest lands, management of substantial acre- As defined in the Federal Land Policy and age will be transferred to the National Park Management Act of 1976:1 Service, the U.S. Fish and Wildlife Service, 6 The term “public lands” means any land and the Forest Service. and interest in land owned by the United States within the several States and admin- Final conveyances of Native and State istered by the Secretary of the Interior selections will further reduce acreage under through the Bureau of Land Management, BLM management.7 Nevertheless, the BLM without regard to how the United States ac- will still have jurisdiction over millions of quired ownership, except— acres of Alaska land. At present, all public 1. lands located on the Outer Continental lands in Alaska that have not been selected Shelf; and by Natives or the State or withdrawn for d-2 2. lands held for the benefit of Indians, Aleuts, and Eskimos, ’ consideration by Congress have been withdrawn for classification under section Traditionally, BLM lands have been the least 17(d)(l) of ANCSA. Scattered Native and restricted and regulated Federal lands, and State selections have been made in mineral- the most open to development and use. ized areas surrounded by these so-called d-l lands.8 The BLM manages about 60 percent (470 million acres) of all federally owned lands; BLM policies will influence decisions asso- more than half of this area (over 295 million 3 ciated with mineral resource development on acres) is in the State of Alaska. The BLM has non-Federal lands in Alaska. Until legislative interim jurisdiction over public lands in disposition of d-2 lands and final conveyance Alaska that have been selected by Alaska of State and Native selections, the BLM will Natives under the Alaska Native Claims Set- 4 administer more than 75 percent of all lands tlement Act (ANCSA) and lands selected by in the State. After d-2 designations and final the State under provisions of the Alaska 5 land conveyances, it is likely that more than Statehood Act. It also manages lands cur- 100 million acres will remain under BLM ad- Note: Footnotes for this section appear on pp. 64-66, ministration. In many regions, access to non-

55 56 ● Analysis of Laws Governing Access Across Federal Lands

Federal lands for mineral resource develop- 50720 or under the withdrawal provisions of ment will involve transportation over and use section 204.21 However, if proposed Federal of BLM lands. use and development are “similar or closely related to” programs of the Secretary for the BLM ORGANIC ACT lands involved, he may enter into cooperative agreements under section 307(b).22 The Federal Land Policy and Management 9 Enforcement of regulations—a serious Act of 1976, commonly referred to as the problem under earlier laws—is enhanced by BLM Organic Act, restructured the public mandatory provisions in all permits. All inland laws. It gives the BLM comprehensive struments providing for use or occupancy of and explicit authority to manage public lands public lands must contain a provision allow- and resources, and repeals many archaic and ing revocation after notice and hearing for overlapping statutes governing public land violation of any terms or conditions including withdrawal, disposal, and rights-of-way. Title compliance with the applicable State or Fed- V of the BLM Organic Act sets forth right-of- eral air or water quality standards or imple- way authorization for public lands adminis- mentation plans .23 tered by the BLM and for National Forest Sys- tem lands.10 The term “right-of-way” as used in the Act includes “an easement, lease, permit, or license to occupy, use, or traverse PURPOSES FOR WHICH public lands” for the purposes listed.ll Sev- RIGHTS-OF-WAY MAY BE GRANTED eral sections of the BLM Organic Act bear on the issue of access; of principal importance Title V of the BLM Organic Act authorizes for access are section 302, which is the gen- the Secretary of the Interior “to grant, issue, eral management authority for public lands;12 or renew rights-of-way over, upon, under, or sections 501-511 (Title V), the Right-of-Way through” public lands, except lands desig- authorization; 13 and section 603, BLM wilder- nated as wilderness.24 The purposes for ness review.14 which a right-of-way may be issued include: Until regulations and directives have been 1. Reservoirs, canals, ditches, flumes, lat- issued under the authority of the BLM Or- erals, pipes, pipelines, tunnels, and oth- ganic Act, the old regulations remain in ef- er facilities and systems for the im- fect.15 These regulations also specify the poundment, storage, transportation, or general application procedure for rights-of- distribution of water; way and easements over lands administered 2. Pipelines and other systems for the by the Fish and Wildlife Service and the Park l6 transportation or distribution of liquids Service. and gases, other than water and other Section 302 of the BLM Organic Act17 than oil, natural gas, synthetic liquid or authorizes the Secretary of the Interior to gaseous fuels, or any refined products regulate the use, occupancy, and develop- produced therefrom, and for storage ment of public lands by several means, in- and terminal facilities in connection cluding easements, permits, licenses, and therewith; 18 leases. The Secretary is directed to manage 3. Pipelines, slurry and emulsion systems, the public lands according to land use plans 19 and conveyor belts for transportation developed under section 202 and to take ac- and distribution of solid materials, and tion necessary to prevent unnecessary or un- facilities for the storage of such ma- due degradation of the land. The Secretary terials in connection therewith; may permit Federal departments and agencies to occupy and develop public lands only 4. Systems for generation, transmission, under the right-of-way provisions of section and distribution of electric energy, ex- Ch. 4 Federal Land Management Systems ● 57

cept that the applicant shall also comply INFORMATION REQUIREMENTS with all applicable requirements of the Federal Power Commission under the An applicant for a right-of-way is required Federal Power Act of 1935 (49 Stat. 847; to submit and disclose plans, contracts, 16 U.S.C. 791); agreements, and other information reasonably related to the use or intended use of the 5. Systems for transmission or reception of right-of-way. 26 In addition to any other infor- radio, television, telephone, telegraph, mation necessary to the determination of and other electronic signals, and other whether the right-of-way should be issued means of communication; and what terms and conditions it should con- 6. Roads, trails, highways, railroads, ca- tain, the Secretary may require a statement nals, tunnels, tramways, airways, live- of the effect on competition of the grant of stock driveways, or other means of right-of-way .27 If the applicant is a partner- transportation except where such facil- ship, corporation, association, or other bus- ities are constructed and maintained in iness entity, information concerning the iden- connection with commercial recreation tity of the participants and the financial structure and control of the entity must be facilities on lands in the National Forest 28 System; or disclosed. 7. Such other necessary transportation or ENVIRONMENTAL IMPACT other systems or facilities which are in ASSESSMENT the public interest and which require rights-of-way over, upon, under, or If the Secretary determines that the use of through such lands.25 a proposed right-of-way may have a “signifi-

Phofo Cmdt: OTA Staff Road to former gold mine now provides recreational access, Hatcher Pass, near Palmer, Alaska 58. Analysis of Laws Governing Access Across Federal Lands

cant impact on the environment, ” the appli- plicant may be required to reimburse the cant is required to submit a plan for construc- agency for “all reasonable administrative tion, operation, and rehabilitation for the and other costs incurred in processing the ap- right-of-way. 29 If, in addition, the Secretary plication for such right-of-way and in the in- determines that the grant of a right-of-way is spection and monitoring of construction, op- a major Federal action “significantly affect- eration, and termination of the facility pur- ing the quality of the human environment,”30 suant to such right-of-way.”42 The require- the agency must prepare an environmental ment of rental payment and reimbursement impact statement (EIS) under the National En- of costs may be waived if a reciprocal right- vironmental Policy Act (NEPA).31 The appli- of-way is granted to the United States by the cant may be required to bear the costs of the holder in connection with a cooperative cost- EIS preparation as part of the costs of admin- share program.43 Federal, State, or local gov- istration. 32 ernment units; nonprofit associations; nonprofit corporations that are not owned or controlled by profitmaking corporations or busi- EXTENT OF RIGHTS= OF= WAY ness enterprises; holders who provide at no or reduced cost a benefit to the public or to The right-of-way is limited to the grounds the programs of the Secretary; or holders occupied by the facilities for which the grant who already are compensating the United was issued and that are necessary for the States for authorized use or occupancy of operation, maintenance, or safety of the proj- Federal land, may be granted a right-of-way ect and will do no unnecessary damage to the 33 at a lesser charge, or no charge, as the Sec- environment. The temporary use of addi- retary finds to be equitable and in the public tional land may be authorized as necessary interest.44 Assignments of free or reduced for construction, operation, maintenance, or rental rights-of-way must be approved by the termination of the project, or for access pur- 45 poses.34 The right-of-way is granted for a Secretary . When appropriate, the holder may be required to furnish a bond or other reasonable term considering the cost of the satisfactory security to secure any or all of facility, its useful life, and any public purpose 35 the obligations imposed upon him by statute, it serves . The right-of-way specifies whether regulations, rules, or the terms or conditions it is renewable and the terms and conditions 46 36 of a specific right-of-way. The Secretary of renewal. may issue or renew a right-of-way only when The Secretary is authorized to issue regu- he is satisfied that the applicant has the nec- lations for rights-of-way.37 These regulations essary technical and financial capability to may be applied to any existing rights-of-way construct the project in accordance with the renewed under the new BLM Act.38 The hold- requirements of the Act.47 er of a right-of-way may use mineral, timber, or vegetative resources of the right-of-way lands in connection with construction or FINANCING TRANSPORTATION other purposes only if authorization is ob- PROJECTS tained under applicable laws.39 The BLM Organic Act provides several arrangements for financing transportation and RIGHT- OF- WAY FEES other projects on public lands. The Secretary is authorized to acquire or construct roads The holder must pay annually, in advance, within or near the public lands that will per- the fair market value of the right-of-way.40 mit maximum economy in timber harvesting When the value is less than $100, the Sec- in the area and at the same time meet re- retary may require advance payment for quirements for the protection, development, more than 1 year at a time.41 The holder or ap- and management of the lands for utilization Ch. 4 Federal Land Management Systems ● 59 of other resources.48 Financing for these IV. Require compliance with State stand- timber roads near or on public lands may be ards for public health and safety, envi- accomplished (a) from appropriated Depart- ronmental protection, and siting, con- ment of the Interior funds, (b) by require- struction, operation, and maintenance ments on purchasers of timber and other pub- of rights-of-way for similar purposes, if lic land resources, (c) by cooperative financ- those standards are more stringent ing agreements with Federal, State, local, or than Federal standards .53 private agencies, or persons, or (d) by a com- 49 Each right-of-way must also contain any spe- bination of these three methods. However, cific additional conditions that the Secretary when roads are required to meet higher tech- deems necessary for: nical standards than necessary for timber or resource removal, the purchasers of timber 1. Protection of Federal property and eco- and resources will not be required to bear the nomic interest; costs necessary to meet the higher standards 2. Efficient management of the lands sub- unless the resource is offered under the con- ject to and adjacent to the right-of-way, dition that a road of that specified standard 50 and protection of other lawful users of be built. The Secretary may make such ar- the lands involved; rangements as necessary to this end. The Sec- retary may also require the users of roads, 3. Protection of life and property; trails, lands, or other facilities administered 4. Protection of fish, wildlife, and other by the Bureau to maintain the land or facil- biotic resources of the area for subsist- ities in a satisfactory condition “commen- 51 ence users; surate with use requirements of each.” Costs assessed to each user must be propor- 5. Location of rights-of-way along routes tionate to total use. The Secretary may re- that will cause the least damage to the quire reconstruction of existing roads or fa- environment taking into consideration cilities when necessary to accommodate a feasibility and other relevant factors; use, but if the reconstruction or maintenance and cannot be provided by the user or is imprac- 6. Protection of the public interest in lands tical, the Secretary may require a deposit in traversed by the- right-of-way or adja- an amount sufficient to cover a proportionate cent thereto. 54 share of costs.52 In order to minimize adverse environmental impacts and the proliferation of rights-of- TERMS AND CONDITIONS way, the BLM Act requires the utilization of rights-of-way in common to the extent prac- 55 In addition to the requirements described tical. Each right-of-way permit must contain above, each right-of-way must contain cer- a provision reserving to the Secretary the tain mandatory terms and conditions that are right to grant additional rights-of-way or permits for compatible uses on or adjacent to the necessary to: 56 original right-of-way. The Secretary may I. Carry out the purposes of the BLM Act designate right-of-way corridors and require and related rules and regulations; that all rights-of-way be confined to that cor- II. Protect the environment and minimize ridor. In making this designation the Secre- damage to scenic and esthetic values, tary is required to consider National and State land use policies, environmental qual- and to fish and wildlife habitats; ity, economic efficiency, national security, III. Require compliance with air and water safety, and good engineering and technologi- quality standards established pursuant cal factors.57 The Secretary must issue regu- to Federal or State laws; and lations containing the criteria and proce- 60 ● Analysis of Laws Governing Access Across Federal Lands dures he will use in designating such corri- right-of-way over, upon, or through public dors. Existing utility and transportation corri- lands or national forests, the applicant must dors may be designated for such uses under simultaneously apply to the appropriate Sec- this subsection without further review.58 This retary for permission to use public lands and provision allows expanded multipurpose use provide all information submitted to the other of existing criteria. department or agency.64 After enactment of the BLM Organic Act, all rights-of-way sought over public lands or national forests, SUSPENSION OR TERMINATION for purposes listed in section 501 must be issued in accordance with the requirements A right-of-way may be suspended or ter- 59 of Title V. This provision is a direct limitation minated for abandonment or noncompliance on any other laws not repealed by the Act with statutory requirements or with the ap- that would grant a right-of-way over public plicable conditions, rules, or regulations for lands. 65 rights-of-way. 60 Holders of a right-of-way must receive due notice prior to a finding of Federal departments and agencies may ob- abandonment or noncompliance. Holders of tain use of public lands under the provisions of Title V subject to such terms and condi- an easement are entitled to an administrative 66 proceeding under section 554 of Title 5 of the tions as the Secretary may impose. Any ac- United States Code before termination or sus- tion to terminate or limit the use of a right-of- pension.6l way reserved for use by a Federal department or agency must be done with the consent Existing rights-of-way or rights-of-use are of the head of the department or agency.67 not terminated by the BLM Act, but with consent of the holder, they may be canceled and reissued under the terms and conditions of Ti- BLM WILDERNESS STUDY tle V.62 When the Secretary issues a right-of- way for railroad and communications facil- Section 603 of the Act provides for wil- ities in a realinement of the railroad, he may derness study of certain BLM lands.68 When require that the applicant relinquish any ex- the Wilderness Act was passed in 1964, the isting right-of-way if he finds that the require- Park Service, the Fish and Wildlife Service, ment is in the public interest, and the lands and the Forest Service were all required to involved are not within an incorporated com- inventory lands under their control to deter- munity and are of equal values. He may, in mine whether any meet the wilderness re- lieu of the provisions of Title V, provide for quirements set forth in section 2(c) of that the same terms and conditions in the new Act.69 BLM lands were not affected.70 Section right-of-way with respect to rental, duration, 603 provides the framework for a survey of and nature of interest in the lands granted, as almost all BLM lands to determine if any were applied to the relinquished right-of-way. should be considered for inclusion in the Na- Action on such a trade is to be made within 6 tional Wilderness Preservation System. months of the receipt of all information required by Title V.63 Section 201(a) of the Organic Act requires a complete inventory of public lands, including their resource and other values, with OTHER CONDITIONS priority given to areas of “critical environmental concern."71 Within 15 years of the When an applicant is before Federal de- effective date of the Act (October 21, 1976), partments or agencies, other than the Depart- the Secretary of the Interior must review all ment of the Interior or the Department of roadless areas of over 5,000 acres and all Agriculture, seeking a license, certificate, or roadless islands72 that were identified in the other authority for a project that involves a section 201 inventory as having wilderness Ch. 4 Federal Land Management Systems .61 characteristics; he must then report to the the proviso that, “in managing the public President on their suitability for preservation lands, the Secretary shall by regulation or as wilderness. All areas formally identified otherwise, take any action required to pre- by the BLM as “natural” or “primitive” vent unnecessary or undue degradation of the areas prior to November 1, 1975, must be re- lands and their resources or to provide envi- viewed, and a wilderness recommendation ronmental protection."83 This protection does made to the President by July 1, 1980.73 not extend to withdrawal from appropriation under the mining laws; the Secretary may Before recommendations to the President make such withdrawals only “for reasons can be made, the Geological Survey and the other than preservation of this wilderness Bureau of Mines must conduct a survey to character." 84 determine any mineral values of a specific area prior to its recommendation for wil- With few exceptions, all 470 million acres derness designation.74 Review of these areas of land managed by the BLM initially are sub- will be conducted under provisions of section ject to the provisions of section 603. In order 3(d) of the Wilderness Act.75 The President is to avoid bringing all activities on BLM land to required to advise Congress of his recommen- a halt, the Bureau has adopted a two-phase dation on the wilderness status of each area policy for identifying and protecting lands within 2 years of receipt of each report from with wilderness potential. The first phase is a the Secretary .7’ wilderness inventory: Every resource managed by the BLM has BLM lands that are designated by Con- an inventory. (For purposes of wilderness re- gress as components of the National Wilder- view, “inventory’ means the examination ness Preservation System will be subject to and display of areas on maps and in narra- provisions of the Wilderness Act applicable tives that are considered to be (a) roadless, to national forest wilderness areas.77 Wil- (b) have wilderness characteristics, and (c) derness designation will remove the authority are 5,000 acres or more, or of sufficient size of the Secretary of the Interior to grant to make wilderness management practical, rights-of-way under Title V.78 However, BLM or are public land islands.)85 wilderness areas would be subject to the BLM plans to complete an accelerated wil- limited provision for presidentially granted 86 national interest exceptions that is applicable derness inventory by July 1980. The inven- to national forest wilderness areas.79 tory will emphasize roadless areas and roadless islands in the 11 Western States. Accord- While the status of wilderness lands is ing to the draft proposal, “Alaska inventory clearly defined, there is some uncertainty will be postponed until Native claims land about lands that are being reviewed for wil- tenure has been finalized.”87 derness characteristics and lands that have 80 It is not clear what level of protection will been placed in “wilderness study” by BLM. be afforded lands during the wilderness re- Section 603(c) requires that areas under review for potential wilderness designation be view. An Organic Act directive states that all environmental assessment reports and envi- managed “in a reamer so as not to impair the ronmental statements must include a discus- suitability of such areas for preservation as 1 sion of potential wilderness resources that wilderness. ‘* However, this protective man- 88 agement is subject to the continuation of “ex- might be affected by a proposed action. isting mining and grazing uses and mineral However, it gives no indication of what ac- leasing in the manner and degree in which tions should be taken in response to threats to the same was being conducted on the date of wilderness potential. The draft wilderness approval of this Act. ’ ’82 This implies that some policy document states: existing activities are allowed to continue. During the wilderness review, multiple use But, immediately following that sentence is activities [including access) will continue 62 w Analysis of Laws Governing Access Across Federal Lands

with advanced planning to protect the exist- egress. In managing the public lands, the ing wilderness designation potential of areas Secretary shall, by regulation or otherwise, or islands. Environmental assessment rec- take any action necessary to prevent unnec- ords or environmental statements prepared essary or undue degradation of the lands. on activities will include discussion of the Currently, the Solicitor’s Office is prepar- wilderness resource where appropriate. The ing a memorandum involving the Secretary’s discussion will cover values per section 2(a) authority to regulate access to and from min- and (c) of the Wilderness Act of September 3, ing claims. In regard to existing access 1964 (Public Law 88-577). Environmental across wilderness study lands to private controls or modifications in proposed actions property, it is my opinion that any legal opin- will be made if necessary to protect wilder- 89 ion is best given after applying each sepa- ness values. rate factual situation to the criteria of sec- At the end of the wilderness inventory, tion 603.92 those roadless areas with wilderness charac- The gist of the opinion is that the Secretary teristics will be designated “wilderness study has full discretion to deny, and might even be areas:” forced to do so by section 603, requests for A roadless area which has been found to access from all persons except locators un- have wilderness characteristics (thus having der the Mining Law, who he could regulate the potential of being included in the Na- under the provisions of section 302. Only tional Wilderness System), and which will be three existing uses are specifically protected subjected to intensive analysis in the Bu- by the section—mining, grazing, and mineral reau’s planning system, and public review to leasing—there is no mention of existing ac- determine wilderness suitability, and is not cess. Of these, only mining could conceivably yet the subject of a congressional decision regarding its designation as wilderness.90 occur off public lands and receive protection, because patenting a mining claim would take It is reasonable to expect that “wilderness it out of Federal lands while preserving rights study areas, ” as opposed to areas merely to ingress and egress. under review, will receive the full scope of section 603(c) protections of their wilderness The opinion also raises the point that, in characteristics. Preliminary views about some instances, land uses might be under a some of the permissible limitations have been more stringent system of controls during the review period than after congressional desig- spelled out in a memorandum issued by the 93 Deputy Solicitor.91 On the issue of access to nation as wilderness. Access to private private lands, the memorandum stated: lands may prove to be one of these instances. During the review period, access decisions In general, access across public lands can are governed solely by Title V as affected by only be granted under Title V of FLPMA, and section 603. Section 603 requires manage- the granting of this right-of-way is discre- ment “so as not to impair the suitability of tionary with the Secretary. Section 603 limits such areas for preservation as wilderness.”94 the discretionary authority of the Secretary After designation as wilderness, section by allowing him to grant access only when it will not impair the suitability of the area 4(d)(4) of the Wilderness Act would apply, under review for wilderness designation. See allowing the President to grant a right-of- also section 302, which provides, in pertinent way: part: Within wilderness areas in the national Except as provided in . . . section 603 . . . forests designated by this Act, (1) the Presi- and in the last sentence of this paragraph, no dent may, within a specific area and in ac- provision of this section or any other section cordance with such regulations as he may of this Act shall in any way amend the Min- deem desirable, authorize prospecting for ing Law of 1872 or impair the rights of any water resources, the establishment and locators or claims under the Act, including, maintenance of reservoirs, water conserva- but not limited to, rights of ingress and tion works, power projects, transmission Ch. 4 Federal Land Management Systems ● 63

lines, and other facilities needed in the pub- receipt of the application, an estimate is lic interest, including the road construction made of anticipated administrative costs. If and maintenance essential to development the costs are greater than the initial payment and use thereof, upon his determination that by an amount exceeding the cost of maintain- such use or uses in the specific area will bet- ing actual cost records for the application, ter serve the interests of the United States periodic payments of costs may be re- and the people thereof than will its de- 106 nial . . .95 quested. If the application is rejected or withdrawn, the applicant is assessed the costs incurred to that point.107 EXISTING BLM RIGHT-OF-WAY In order to assist actual and potential ap- REGULATIONS plicants, the regulations provide that a person may request, prior to submitting an ap- Existing BLM right-of-way regulations, plication, a nonbinding estimate of the an- issued under the general authority of the ticipated administrative and other costs ex- Department of the Interior to manage the 108 96 pected to be incurred. On approval of the public lands, provide the general institu- application, the holder must make payment tional framework for the application and based on the length of right-of-way and must review process for rights-of-way on lands reimburse the agency for costs of monitoring under BLM jurisdiction. The Fish and Wild- the construction, operation, maintenance, life Service and Park Service follow the BLM and termination of the right-of-way and for regulations, however, application is made 97 the costs of protecting and rehabilitating the directly to the managing agency. These lands involved.109 A bond or other security regulations cover all non-Federal applicants may be required to assure payment of costs seeking rights-of-way, including State and or satisfaction of the conditions of a right-of- local governments; Federal agencies now way.110 The charge for use and occupancy of a may obtain rights-of-way under the provi- 98 right-of-way is set by the regulations at the sions of section 507 of the BLM Organic Act. fair market value of the permit, right-of-way, An applicant must file an application with or easement as determined by the appropri- the BLM listing the statute authorizing the ate officer, but not less than $25 per 5-year right-of-way, the primary purpose for which period.111 it is sought, and the date on which any prior 99 The terms and conditions set forth in the unauthorized use began. The applicant regulations generally provide for: agrees to accept the terms and conditions set forth in the regulations100 and deposits a 1. Compliance with Federal and State laws nonreturnable fee based on the length of the and regulations applicable to the lands right-of-way. 101 A map of the area indicating or right-of-way project.112 the extent of the right-of-way must be included with the application along with data 2. Compliance with regulations and direc- about the planned developments projects.102 tives of the supervising officer of the Information concerning citizenship,103 disclo- agency with respect to clearing and re- sure of control, and financial status of busi- storing land, public safety, protection of ness entities is required. 104 property and environmental values, fire prevention, and payment for the use of The applicant must reimburse the Govern- timber or mineral resources of the right- ment for administrative costs incurred in of-way. 113 processing the application including preparation of reports and statements required under 3. Acceptance of any additional special NEPA if the approval of the application is conditions necessary to make the grant determined to be a major Federal action sig- of a right-of-way compatible with the nificantly affecting the environment. ’05 Upon .public interest.114 64 ● Analysis of Laws Governing Access Across Federal Lands

4. Acceptance of the condition that use of The right-of-way granted under these regu- the right-of-way will not “unduly inter- lations, unless otherwise provided by statute, fere with management or administration does not convey a property interest in the of lands affected by it, ” and that the lands involved, only a right to use the public right-of-way may be modified or termi- lands for a specific purpose.117 The right-of- nated by the Secretary if its use conflicts way may be terminated by a specific order of with other works constructed by author- cancellation for noncompliance with condi- ity of the United States. 115 tions of the grant, ’*8 non-use, abandonment, **g or failure to proceed with timely construction 5. Agreement to pay for all damage to U.S. of the project for which the right-of-way was property and ‘to indemnify the United issued, 120 or when use of the right-of-way con- States for any liability for damages for flicts with other authorized uses,121 or unduly injury to property or person arising from interferes with the management and admin- use of the right-of-way. ’*G istration of the affected lands. *22

FOOTNOTE REFERENCES FOR PUBLIC LANDS

‘Public Law 94-579, 90 Stat. 2743, 43 U.S.C. 1701 et menting the Act in accordance with the provisions of seq. (1977 supp.). 2 the Administrative Procedure Act. The last sentence of 43 U. S.C. 1702(e). Public lands are divided into the section states: public domain lands which have never left Federal ownership, and acquired lands which are lands in Prior to the promulgation of such rules and Federal ownership which are not public domain and regulations, such lands shall be administered have been obtained by the Government through pur- under existing rules and regulations concerning chase, condemnation, gift, or exchange. “Lands” in- such lands to the extent practical. cludes all interests in land—such as surface owner- The Bureau has adopted a policy of issuing Organic Act ship, mineral rights, timber rights, and easements. Directives (OADS], approved by its FLPMA Policy Com- 3Department of the Interior, Bureau of Land Manage- mittee, to provide guidelines for carrying out specific ment, Public Land Statistics 1976, pp. 20-21. activities affected by the Organic Act prior to the com- ‘Public Law 92-203,85 Stat. 688 (1971). pletion of formal rulemaking, BLM, The Federal Land ‘Public Law 85-508, 72 Stat. 339 (1958), as amended Management Policy Act: An Interim Report—Oct. 21, 77 Stat. 223 (1963), 1976 to June 30, 1977, 1977, p. 7. “Exact acreages will be determined by Congress. 1’43 CFR Part 2800, Regulations for Fish and Wildlife 7Conveyance of Native selections is now expected to Refuges are also found at 50 CFR 29. take until 1981 or beyond. See testimony of Guy Martin, ’743 U.S.C. 1732. Hearings Before Subcommittee on General Oversight 1843 u.S.C. 1732(b). and Alaska Lands of House Committee on Interior and ’943 U.S. C. 1712. insular Affairs, 95th Cong., 1st sess., July 21, 1977. 2043 U.S.C. 1767. ‘See maps of land status and d-2 proposals in OTA Z143 u.S.C. 1714(b). working paper by John W. Whitney and Dennis Bryan, 2243 U.S.C. 1737(b), Section 302(b) states in part: Assessment of Transportation Access Requirements for “Provided, that unless otherwise provided for by law, Minerals Exp~oration and Mine Development and Oper- the Secretary may permit Federal departments and ation in Alaska, in Analysis of Laws Governing Access agencies to use, occupy, and develop public lands only Across Federal Lands: Options for Access in Alaska, through rights-of-way under section 507 of this Act, Volume 11, Working Papers (OTA-M-76). withdrawals under section 204 of this Act and, where ’43 U.S.C. 1701 et seq. the proposed use and development are similar or close- ’043 U.S.C. 1761-1771. ly related to the programs of the Secretary for the ’143 U.S.C. 1702(f), public lands involved, cooperative agreements under ’243 U.S.C. 1732. subsection (b) of section 307 of this Act. ” 1343 U.S,C. 1761-1777. 2343 UOS. C. 1732(c). 1443 U.S.C. 1782. 2“43 U.S.C. 1761(a). 15 Section 310 of the Act, 43 U.S.C. 1740, requires that z51d. the Secretary promulgate rules and regulations imple- 2s43 u.s.c. 1761(b)(l). Ch. 4 Federal Land Management Systems ● 65

z71do for rights-of-way over public lands. See Morrison, 2843 u.s.j’. 1761(b)(2). supra, note 61, at 105-109. 2943 U.S.C. 1764(d). OAD 76-15, Dec. 14, 1976, supra, ’43 U.S.C. 1767(a). note 15, requires that applications indicate whether a 8743 U.S.C. 1767(b). right-of-way will have any impact on roadless areas of ’43 U.S.C. 1782. Lands covered by the Act of August more than 5,OOO acres or “areas of critical concern. ” 28, 1937, 43 U.S,C. l181(a) to l181(j) and the Act of Another directive, OAD 7629, Mar. 15, 1977, requires May 24, 1939, 50 Stat, 753, are not affected by this pro- all environmental assessment reports to discuss im- vision, see section 701(b). The Bureau has yet to issue pacts on potential wilderness. See discussion of section any rules regarding the Wilderness Study. Current pol- 603 of the Act below. icy regarding the study is contained in the following 3042 U.S.C. 4332(2)(C). documents: BLM, Draft Proposed Wilderness Policy 3142 U,S. C, 4321 et seq. See the discussion Of NEpA in and Review Procedure, Feb. 27, 1978 (Draft); Office of this report. the Solicitor, Application of Mining and Grazing Laws 3243 U.S.C. 1764(g), See also, existing BLM right-of- to Areas Under Review for Inclusion into Wilderness way regulations at 43 CFR 2800. System: Section 603, Federal Land Policy and Manage- 3’43 U.S.C. 1764(a). ment Act of 1976, Jan. 8, 1978 (Opinion), and the follow- “Id. ing Organic Act Directives: OAD 76-15, Dec. 14, 1976; 3543 U.S.C. 1764(b). OAD 77-21, Feb. 16, 1977; and OAD 77-29, Mar. 15, “Id. 1977. 3743 U.S.C. 1764(e). 6gWilderness Act, Public Law 88-577, 78 Stat. 89, 381d. Sept. 3, 1974, 16 U.S.C. 1131 et seq. 3943 U.S, C. 1764(f). TOThe Bureau established two land classification ’043 U.S.C. 1764(g). categories—primitive areas and natural areas—in “Id. which use and activity were severely restricted, 43 CFR “Id, 6221 (primitive areas) and 43 CFR 6225 (natural areas). “Id. The criteria for selection were similar to those used for “Id, wilderness. There are 11 primitive areas containing “Id. 234,000 acres and 44 natural areas containing 271,000 4843 U,S.C. 1764(i). acres. See Draft, pp. 15-16; supra, note 68. 4743 U.S.C. 1764(j). 7]43 U.S.C. 1711(a). “Areas of critical environmental 4843 U.S.C. 1762(a). concern’ are defined as: “areas within the public qgId, lands where special management attention is required 5oId. (when such areas are developed or used or where no 5143 U.S.C. 1762(c). development is required) to protect and prevent ir- ‘zId. reparable damage to important historic, cultural, or 5343 U.S. C. 1765(a). scenic values, fish and wildlife resources or other 5443 U.S.C. 1765(b). natural systems or processes, or to protect life and 5543 U.S. C. 1763. safety from natural hazards. ” 43 U.S. C. 1702[a). 561d< 72BLM has formulated the following definitions of the 571d. key terms “public land island” (equivalent to roadless 581d, island), “road,” and “roadless area. ” Draft, pp. 9, 10; 59 A “rebuttable presumption of abandonment” arises supra, note 68: when the holder fails to use the right-of-way for the Public Land Island: A body of land above the or- purpose for which it was granted for a continuous 5- dinary high-water elevation of any meanderable year period, 43 U.S,C. 1766. body of water, except those islands formed in navi- ’43 U.S. C. 1766. gable bodies of water after the date of admission “]This distinction between an easement and a right- of the State into the Union. of-way is not explained in the BLM Act. See Morrison, Road: For the purpose of the wilderness inven- “Rights-of-Way on Federally Owned Lands: A Journey tory, a road is defined as and must meet all of the Through the Statutes by Way of the Federal Land Poli- following: An access route that has been improved cy and Management Act of 1976, ” 9 Transportation and maintained by using hand or power machinery Law Journal, 97,103 [1977). or tools to insure relatively regular and continuous 5243 U.S.C. 1769(a). use. A way maintained solely by the passage of ve- ’343 U.S.C. 1769[b). hicles does not constitute a road. “43 U.s.c. 1771$ Words and phrases used in the above definition EJ543 U.S. C, 1770(a). Section 28 of the Mineral Leasing of “road” are defined as: Improved and Main- Act, 30 U.S.C. 185, relating to oil and gas pipelines, and tained: Where actions have been and will continue the Federal Power Act, 16 U.S.C. 791-825, relating to to be directed to physically keep the road open to pipelines and water projects, are not of great impor- traffic. Relatively regular and continuous use: Use tance here; but both provide additional authorization by vehicles having four or more wheels that has 66 “ Analysis of Laws Governing Access Across Federal Lands

occurred and will continue to occur on a recurring 9GThe regulations are found at 43 CFR part 2800. See basis, for a predetermined, planned, or intended supra, note 15, for a discussion of the current applica- purpose. (An example would be access for equip- bility of these regulations. OADS have been issued for ment to maintain a stock water tank, Casual or “Processing of Right-of-Way and Temporary Use Appli- random use by off-road vehicles or recreationists cations” (OAD 76-15; Dec. 14, 1976); “Right-of-Way does not qualify,) Cost Recovery” (OAD 76-15; Dec. 15, 1976); “Process- Roadless Area: That area bounded by a road ing Pending Applications for Airport Leases” (OAD using the edge of the physical change that creates 77-8; Jan. 24, 1977); and “Valuation of Non-linear the road or the inside edge of the right-of-way as a Rights-of-Way for Communication Purposes” (OAD boundary. 77-3o; Mar. 15, 1977). Laws cited as underlying author- 7343 U.S.C. 1782(a), ity for the BLM right-of-way regulations are 5 U.S.C. “Id. 301,43 U.S.C. 2, and 43 U.S.C. 1201. See 43 CFR 2802.1 - 751d. Section 3(d] of the Wilderness Act is found at 16 l(a). U.S.C. l132(d). “Fish and Wildlife Service regulations are found at 7643 U,S.C. 1782(b). 50 CFR 29.21. 7743 U.S.C. 1782(c). 9843 U.S. C. 1767. 7843 U.S.C. 1761(a). 9943 CFR 2802,1-l(a), 7’16 U.S.C, l133(d)(4), ‘W43 CFR 2801.1-5, Vhe Act discusses protective actions the Secretary 10143 CFR 2802.1-2(a)(3). may take “during the period of review of such areas 10243 CFR 2802.1-5(a). and until Congress has determined otherwise. ” 43 1°343 CFR 2802.1-4(a). U,S.C. 1782(c). BLM policy, as reflected in the Draft, in- ‘W43 CFR 2802.1-3,2802. l-4(b). dicates a two-step process involving a wilderness in- 10543 CFR 2802.1 -2(a](l). OAD 76-15 states that ex- ventory and wilderness study of areas selected from cept for exclusion of management overhead, the policy that inventory, see text accompanying notes 85-90, The embodied in the regulations is consistent with FLPMA BLM review process indicates that much importance is requirements for cost recovery. placed on making early “negative declarations” about IW43 CFR 2802. l-2(a)(4). areas that should not be subject to section 603 protec- 10743 CFR 2802.1 -2(a~6). tion. Draft, p. 11; supra, note 68. ‘m43 CFR 2802.1 -2(aX9). 8143 U.S. C. 1782(c). ‘0’43 CFR 2802. 1-2(b). 8zIde 11043 CFR 2802.1 -2(a)(n) and (12). Provisions requir- “’Id, ing payment of costs, fair market or rental value, and a41d. bonding do not apply to State and local government ap- *sDraft, p. 7, plicants for rights-of-way for public purposes, pursuant *6Draft, p. 17. to road use or reciprocal road use agreements or to i’PId, Federal agencies. 43 CFR 2802.1 -2(a12), 2802.1-7. ‘80AD 77-29, Mar, 15, 1977, supra, note 15. 1“43 CFR 2802.1-7. a9Draft, p. 12. 1’243 CFR 2801.1-5(a). ‘Draft, p. 10, Primitive and natural areas, supra, 11343 CFR 2801. l-5( b),(c), (d),(e), (g),and (i), note 70, have been classified as “Instant Study Areas, ” ‘]443 CFR 2801.1-5(h). meaning that they will be treated as wilderness study 1’543 CFR 2801 .1.2 -5(e]. areas right now, without the need for a wilderness in- 1’643 CFR 2801 .1-5( f]. ventory. Draft, p. 7. “743 CFR 2801,1-1. “Opinion, supra, note 68. “843 CFR 2802,3-1. ‘20pinion, p, 11. ’“43 CFR 2802.2-3. ‘30pinion, p. 5. ‘2043 CFR 2802.2-2. ’43 U,S.C. 1782(c). 12143 CFR 2801.1-5(m). 9516 U.S, C. 1133(d)(4). This provision, and all other 12243 CFR 2801.1-5(1). provisions of the Wilderness Act relating to national forest wilderness areas, are applied to BLM wilderness areas by section 603. Ch. 4 Federal Land Management Systems ● 67

NATIONAL PARK SYSTEM

The National Park System embraces over Park System; (c) public land right-of-way stat- 25 million acres (7 million acres in Alaska)’ in utes applicable to park lands; and (d) statutes national parks, national monuments, historic and regulations relating to highways, naviga- monuments, parkways, recreation areas, me- ble waters, and other modes of transporta- morials, historic sites, and other reservations tion. administered by the Secretary of the Interior through the National Park Service.2 Congress GENERAL AUTHORITY established the national parks “to conserve FOR RIGHTS-OF= WAY the scenery and the natural and historic objects and the wildlife therein and to provide There is no express and comprehensive ac- for the enjoyment of the same in such manner cess or right-of-way authorization for the Na- tional Park System as there is for the public and by such means as will leave them unim- 5 lands, the National Wildlife Refuge System,’ paired for the enjoyment of future genera- 7 tions.” 3 The National Park Service is required and the National Forest System. In general, to promote and regulate use of park areas in the laws governing administration of national conformance with the declared purposes of parks are less detailed and more discretion- preservation and management “for the bene- ary than those for other land management fit and inspiration of all the people of the systems. Access through a national park for United States.”4 In conformance with these mineral exploration and development is sub- declared purposes of the National Park Sys- ject to the broad authority of the Secretary of the Interior to manage the national parks tem, most nonrecreational uses of park areas 8 are sharply limited or prohibited. through the National Park Service. Exercise of this authority should be in conformance with the general purposes of the park system of preservation and recreation, and with the particular purposes for which a given park unit was established.9 The Secretary is specifically authorized to aid in the development of transportation systems which serve units of the national parks. The Secretary may construct, maintain, or, by agreement, make funds available for local airports10 and roads designated as park approach roads.11 The Secretary may construct roads and trails within national park areas and obtain any rights-of-way necessary for improvement or construction of roads within authorized Photo Cred/t: OTA Staff boundaries of park areas.12 In the admin- Caribou, McKinley National Park istration of the parks, the Secretary is author- The legal basis for use of park land for ized to regulate boating and other activities rights-of-way is found in (a) the general au- on waters in the National Park System, in- thority of the Secretary of the Interior to cluding navigable waters under the jurisdic- manage the national parks under his author- tion of the United States.13 The regulation of ity in conformance with their established pur- navigable waters in park areas by the Sec- poses; (b) specific statutes and regulations retary of the Interior complements the Coast governing individual units of the National Guard’s general jurisdiction over navigable Note: Footnotes for this section appear on pp. 72-73. waters. 68 ● Analysis of Laws Governing Access Across Federal Lands

For administrative purposes, the Park Regulations promulgated by the Park Serv- Service has divided components of the Na- ice limit the operation of motor vehicles, air- tional Park System into three categories: craft, and vessels primarily for reasons of

● safety and the protection of life and property. Natural areas—all national parks and Generally, aircraft must take off and land certain national monuments established only at designated land and water areas and as such because of their natural fea- 17 14 comply with Federal aviation regulations. tures. Cars, offroad vehicles, and other motor ve- ● Historical areas—all park areas desig- hicles are allowed only on established roads nated because of their historic or arche- or use areas unless special permission is ob- ological significance, historical sites, tained. 18 Boats must comply with Coast Guard battlefields, monuments, and memori- requirements and may be restricted in opera- als.15 tion in wildfowl nesting areas and fish habitats for safety reasons.19 ● Recreational areas—all units of the park system administered for purposes of The use of existing park roads by commer- public recreation, such as seashores, cial vehicles is subject to strict controls. Park lakeshores, parkways, and wild rivers.” service regulations provide that: Permissible uses of park areas often depend The use of Government roads within park upon the administrative classification. areas by commercial vehicles, when such

Photo Cred/t: The Alaska Coalltion National Parks offer many outdoor recreational opportunities. The photograph shows a skier in the Wrangell-St. Elias Region, a proposed National Park area Ch. 4 Federal Land Management Systems ● 69

25 use is in no way connected with the opera- retary. The right-of-way is limited in extent tion of the park area, is prohibited, except to the grounds occupied by the project plus an that in emergencies the Superintendent may additional area not to exceed 50 feet from the 20 grant permission to use park roads. margins of the project. For pipes, pipelines, The sole exception to this rule applies and electrical, telegraph, or telephone poles, when a denial of the use of park roads would the right-of-way may not exceed 50 feet from totally foreclose access: the centerline of the projects. A permit for a right-of-way across one of the named national The Superintendent shall issue permits for parks or other reservations may be issued commercial vehicles used on park area roads when such use is necessary for access to pri- only on the approval of the “chief officer of vate lands situated within or adjacent to the the department” having jurisdiction over the lands after a finding that the proposed use is park area, to which access is otherwise not 26 avail able.21 “not incompatible with the public interest. " The “local park superintendent is vested The 1901 Act expressly referred to grants with broad discretion in matters relating to of rights-of-way across Yosemite and Sequoia the management of a particular park unit. In National Parks (the General Grant grove was addition to laws applicable to the park system added by amendment in 1940).27 It has, there- as a whole, the statutes and executive orders fore, been suggested that the Act does not ap- that established and govern individual park ply to any other parks, though it would apply units often impose more or less stringent re- to all monuments and recreation areas ad- quirements on permissible uses .22 ministered by the Park Service.28 The implication is that because the 1901 Act listed some parks and did not list others and because one STATUTES PROVIDING FOR park was added in 1940, the unlisted parks RIGHTS-OF-WAY THROUGH were not to be subject to this provision and NATIONAL PARKS were not, under principles of statutory construction, covered by the phrase “other reservations. The 1901 Act, Rights-of-Way for Public Utilities Unlike the Act of March 4, 1911, the 1901 23 Act is not mentioned in section lc(b) of Title The Act of February 15, 1901, provides 16, United States Code, as one of those laws that the Secretary of the Interior may permit that are applicable to all units of the Park the use of rights-of-way, for certain specified System regardless of their designation as purposes, through “the public lands, forests, parks, monuments, or recreation areas in leg- and other reservations of the United States, islation redefining the National Park Sys- and the Yosemite and Sequoia National tem.29 However, that provision is, on its face, Parks, Calif., and the General Grant grove not an exclusive compilation of laws of gener- section of Kings Canyon National Park, 24 al applicability. It states: “the various author- Calif.” Rights-of-way maybe obtained under ities relating to the administration and pro- the 1901 Act for construction and operation tection of areas under the administration of of facilities for the generation and distribu- the Secretary of the Interior through the Na- tion of electricity for telephone and telegraph tional Park Service, including but not limited systems, and for water projects for irrigation, mining, quarrying, timbering, manufacturing, to . . . shall, to the extent such provisions are not in conflict with any such specific provi- or supplying water for domestic, public, or sion be applicable to all areas within the Na- other beneficial purposes. tional Park System and a reference in such The right-of-way does not convey any prop- Act to national parks, monuments, recreation erty interest in the lands involved; it is a areas, historic monuments, or parkways shall license revocable at the discretion of the Sec- hereinafter not be construed as limiting such 70. Analysis of Laws Governing Access Across Federal Lands

Act to those Areas.”30 (Emphasis added). If pany, irrigation or drainage district,37 individ- the 1901 Act is covered by this provision ual, or association38 upon filing with the Sec- then, because it applies to some elements of retary of the Interior certain required docu- the System, it would apply to all. If it is not ments such as corporate articles of incor- covered, then only three parks are subject to poration, or other evidence of organization the right-of-way provision. under State law, ownership information, and maps of the location of the proposed right-of- The 1911 Act, Rights-of-Way for Power way for drainage or irrigation projects.39 and Communications Facilities The right-of-way includes the ground occu- The Act of March 4, 1911,31 authorizes the pied by the water of any reservoir, canals, Secretary of the Interior to grant an “ease- and laterals, up to 50 feet from the marginal ment for right-of-way” for a period of up to 50 limits of the project, and any additional area years from date of issuance to any person, as the Secretary may deem necessary for the association, or corporation of the United proper operation and maintenance of the States for one or more of the listed purposes. right-of-way project.40 The holders of ditch This Act has been expressly extended to all and canal rights-of-way also obtain the right areas in the National Park System.32 An ease- to take any material, earth, and stone neces- ment for right-of-way may be granted “over, sary for the construction of canals and under, across, and upon” national parks and ditches from the adjacent public lands.41 other reservations of the United States for: The right-of-way may not be located so that a. up to 200 feet from the center line of it interferes with the proper occupation by poles and lines for the transmission and the Government of such reservations. Maps distribution of electricity or for lines of right-of-way location are subject to the ap- and poles for radio, television, and proval of the administering department.42 The other communications purposes; and right-of-way is effective upon approval of the b. sites not exceeding 400 square feet required maps and certificates and author- for transmitting, relay, receiving, and izes occupation of the right-of-way only for other communications structures and the purpose of construction, operation, main- facilities. tenance, and care of the project, and no other purposes.43 Existing ditch and canal rights-of- A right-of-way is granted only after approval way may also be used for purposes of a public by the “chief of the department” upon a find- nature, for water transportation, for domes- ing that the proposed use is not incompatible 33 tic purposes, “or for the development of with the public interest. All or part of the power as subsidiary to the main purpose of right-of-way may be annulled or terminated irrigation or drainage.”44 for non-use or abandonment after a period of 2 years. Communications facilities are subject to regulation by the Federal Communica- Public Utility Rights-of= Way tions Commission.34 Electrical power projects and Mineral Access are subject to regulation by the Federal En- ergy Regulatory Commission35 and by State The 1901 Act, the 1911 Act, and the authorities. ditches and canals acts do not address the The Ditches and Canals Acts problems of mineral access. Individuals or business entities seeking permission to use A series of public land laws, commonly re- lands in the National Park System for access ferred to as the “ditches and canals acts”36 to adjacent non-Federal lands for the pur- grant rights-of-way through the public lands pose of mineral exploration and development and reservations of the United States for alone will find no legal basis under these laws drainage and irrigation projects. The right-of- for access. However, these laws may provide way may be obtained by a canal ditch com- authority to approve rights-of-way over park Ch. 4 Federal Land Management Systems . 71 lands for utilities systems that may be neces- through park areas are made to the Director sary to support mineral development.45 of the National Park Service.50 Applicants must file a request for a right-of-way, citing Under each law, the grant of a right-of-way the statute(s) or other authority under which is conditioned on a finding by the Secretary of it is sought, providing maps and supporting the Interior that a proposed use is appropriate. The 1901 Act authorizes issuance of a documents, and making a deposit for admini- revocable license for use of a right-of-way for strative costs, The applicant agrees to accept electric power, communications, and water all the terms and conditions of issuance set projects subject to approval of the Secretary forth in the regulations. and a finding that the proposed use is “not incompatible with the public interest.”46 This public interest standard, though seemingly RIGHTS-OF-WAY FOR HIGHWAYS broad, should be construed in light of the declared purposes of the national parks. Any Federal agencies, States, and local juris- use detrimental to that purpose may be found dictions seeking a right-of-way through Na- to be not in the public interest. tional Park System lands for federally aided The 1911 Act provides for a right-of-way highways and other transportation projects may file a designated route with the Secre- for a term of up to 50 years for electric power 51 transmission and distribution systems and tary of Transportation. This begins a multi- communications facilities subject to approval tier review process. The Secretary of Trans- of the Secretary, and a finding that the use of portation cooperates with the Secretaries of the right-of-way is “not incompatible with the the Interior, Housing and Urban Develop- public interest.”47 ment, and Agriculture and the States to develop a transportation plan and program that The ditches and canals acts grant a right- includes measures to maintain or enhance of-way for drainage and irrigation projects the natural beauty of the lands involved.52 upon the approval by the Secretary of the project maps and required certificates. The Federal-local cooperative studies are au- right-of-way continues in effect as long as it is thorized to determine the most feasible Fed- used for its primary declared purpose, Exist- eral aid for the movement of vehicular traffic ing canal and ditch rights-of-way may be used through or around national parks so as “to for certain limited public and subsidiary pur- best serve the needs of the traveling public while preserving the natural beauty of these poses but no other occupancy is authorized. 53 Approval of a right-of-way may be denied if areas.” If the Secretary of Transportation the location sought is found to interfere with concludes that Federal park land is reason- the Government’s proper occupation of the ably required for a highway or other trans- park or reservation.48 Therefore, if the pro- portation project and that no prudent or feas- posed use of the right-of-way is not consistent ible alternative exists, a request for a right- of-way and supporting information is filed with the purposes of preservation and recre- 54 ation, it maybe denied. with the Secretary of the Interior. If the Secretary of the Interior does not certify that the proposed right-of-way is contrary to the public interest or inconsistent with the pur- APPLICATIONS FOR RIGHTS-OF-WAY poses of the park reservation or if he approves the right-of-way subject to conditions The Department of the Interior applies deemed necessary for the adequate protec- the BLM regulations on the applications for tion and utilization of the park within 4 and issuance of rights-of-way to applications months, the Secretary of Transportation may for rights-of-way across National Park Sys- appropriate the necessary land and transfer tem lands.49 Applications for rights-of-way a right-of-way to the State agency .55 72 ● Analysis of Laws Governing Access Across Federal Lands

FOOTNOTE REFERENCES FOR NATIONAL PARK SYSTEM

‘Department of the Interior, Bureau of Land Manage- 2331 Stat. 790, 43 U.S.C. 959 (1970), also codified at ment, Public Land Statistics 1976, 21. 16 U.S.C. 79, 522 (1970). The BLM Organic Act, 43 216 U.S, C, lc(a). “Reservation” is a generic term, U.S.C. 1701 et seq., repealed the 1901 Act to the extent which refers to any public lands that have been with- it applied to public lands and national forests—leaving drawn for certain specific purposes and thereby segre- only application to named parks “and other reserva- gated from the operation of various other public land tions.” Public Law 94-579, section 703(a), 90 Stat, 2743. laws that authorize the use or disposition of the lands. z443 U.SOC. 959. Note, however, that the codification Lands may be reserved or “withdrawn” by statute, by at 43 U,S. C. 79 governing national parks was not executive order pursuant to statute, or by executive ac- amended to include General Grant grove section of tion subject to an implied inherent withdrawal authori- Kings Canyon National Park, Calif,, as a named park. ty of the President (this last power, to the extent that it zSUnited States v. Colorado Power CO., 240 F. 217 (D. exists, has been limited by sections 204 and 704 of the Col. 1916). Federal Land Policy and Management Act of 1976, com- 2643 U.s.c. 959. monly known as the BLM Organic Act, Public Law zpAct of March 4, 1940, 54 Stat. 41. 94-579, Oct. 21, 1976, 90 Stat. 2743. See 43 U.S.C. zBLee D. Morrison, “Rights-of-Way on Federally 1714). Almost all national parks were created by Owned Lands: A Journey through the Statutes by Way statute. Many national monuments were originally of the Federal Land Policy and Management Act of created by reservations pursuant to the Antiquities Act 1976,” 9 Transportation Law Journal 97 (1977), at 111. of 1906, which authorizes the President to establish na- The 1901 Act was passed after the establishment of tional monuments in areas of historic or scientific in- Yellowstone National Park, Act of March 1, 1872, c. 24 terest or value by public proclamation (16 U.S.C. s1, 17 Stat. 32, and Mount Rainier National Park, Act of 431-433). Most national recreation areas were created March 2, 1899, c. 377 s1, 30 Stat. 993. Neither is men- by cooperative agreement between the Park Service tioned in the Act. and the Bureau of Reclamation under which lands zYAct of August 18, 1970, Public Law 91-383, 84 Stat. previously withdrawn for reclamation were subjected 825, 16 U.S.C. IC. to recreation uses. 3016 U.S.C. lc(b). When the term reservation is used in a statute, par- 3136 Stat. 1253, 43 U.S. C. 961 (1970) (also codified at ticularly older statutes, it includes any lands under the 16 U.S.C. 5, 420, 523). Section 5 applies to national jurisdiction of the Park Service unless specified other- parks and other reservations; section 420 to national wise. parks, military, or other reservations; section 961 to ’16 U.S.C. 1. public lands, Indian, or other reservations; section 523 416 U.S,C. la-l. applies to national forests. The BLM Organic Act par- 543 U.S. C. 1761 et seq. tially repealed the 1911 Act insofar as it applied to 616 U.S.C. 668dd(d). public lands and national forests. Public Law 94-579, 743 U.S.C. 1761 et seq.; 16 U.S.C. 532-538. 90 Stat, 2743, section 703(a). ‘See 16 U.S.C. 1 et seq. 3243 U.S.C. lc(b). ’16 U.S.C. la-l, lc(b). 3343 U.S,C. 961, 16 U.S.C. 5,420. ‘[)16 U.S.C. 7a-7e. “Id. ’116 U.S,C, 8, 8a-8f. jssee, generally, 16 U,S. C. 797 et seq. and regulations ’216 U.S.C. 1, lb(7),8, thereunder. The Federal Energy Regulatory Commis- ’316 U.S,C. la-2(h), sion was formerly the Federal Power Commission. “36 CFR 1.2(g]. 3“The “ditches and canals acts” include: Act of ’536 CFR 1.2(h). March 3, 1891, c. 561, 26 Stat. 1101; Act of January 13, ‘b36 CFR 1.2(i). 1897, c. 11, 29 Stat. 484; Act of May 11, 1898, c. 292, 30 “36 CFR 22. Stat. 404; Act of March 4, 1917, c. 184, 39 Stat. 1197; ‘8 See regulations relating to operation of motor vehi- Act of March 3, 1923, c. 219, 42 Stat. 1437; Act of cles at 36 CFR 4,19. For snowmobiles, see 36 CFR part March 3, 1925, c. 462, 43 Stat. 1145; and Act of May 2.34. 28, 1926, c. 409, 44 Stat, 668. The “ditches and canals ’936 CFR part 3. acts” are codified generally at 43 U.S.C. 946 to 954. 2036 CFR 5.6(b) Commercial vehicles are defined as These laws were repealed in part by the BLM Organic any vehicles “used in transporting moveable property Act as they apply to public lands and national forests. for a fee or profit. ” 36 CFR 5,6(a). See Public Law 579, section 703(a), 90 Stat. 2743 2’36 CFR 5.6(c). (1976). 2216 U.S.C. lc(b), laws establishing individual units of 3743 U.S.C. 946. the national parks are codified in Title 16 U.S.C. and in ’843 U.S. C. 948. regulations, 36 CFR Pt. 7 and also 36 CFR parts 6, 12, 3943 U.S. C. 946. 20, 21, 25,28,30. ‘Id. Ch. 4 Federal Land Management Systems “ 73

“M. “16 U.S.C. 420. “Id. ’843 U.S.C. 946. 4]43 U.s.c. 949. “943 CFR 2801.1-7(b). See discussion of BLM regula- “43 U.s.c. 951. tions in previous section on Public Lands. ‘5The availability of rights-of-way for utilities may ‘(143 CFR 2802. l-l(a). seem useless if there is no means of surface access for ‘lSee laws applicable to the Federal-aid highway sys- the enterprise which the facilities are intended to sup- tem, 23 U.S.C. 101 et seq., and 23 U.S. C. 317. port. But such split access may be feasible where air or 5223 U,S.C. 138. sea transport or a more circuitous surface transport 5323 U.S. C. 138. route can be established. It should be taken into ac- 5423 U,S.C, 1653(f), commonly known as section 4(f) of count that the costs of utility systems are much more the Department of Transportation Act and also found sensitive to additional length than many other transpor- at 23 U.S. C. 138. See discussion of section 4(f) else- tation systems. where in this report. “616 U.S.C. 79. 5523 U.S.C. 317. 74 ● Analysis of Laws Governing Access Across Federal Lands

wildlife refuges, areas for the protection and pipelines, and roads including the construc- conservation of fish and wildlife that are tion, operation, and maintenance thereof, threatened with extinction, wildlife ranges, wherever he determines that such uses are game ranges, wildlife management areas, or compatible with the purposes for which such waterfowl production areas.’” This system areas were established. “12 comprises over 30 million acres nationwide, z Right-of-way regulations issued by the Fish with 22.2 million acres in Alaska. and Wildlife Service state, “No right-of-way There are at least eight statutes that may will be approved unless it is determined by provide authority for the management pol- the Regional Director to be compatible.”13 icies and purposes of the NWRS.3 The pri- That term is defined by the regulations: mary authority is found in the National “ ‘Compatible’ means that the requested Wildlife Refuge System Administration Act4 right-of-way or use will not interfere with or which makes specific provisions for grants of detract from the purposes for which units of easements across NWRS lands.5 Other stat- the National Wildlife Refuge System are es- utes, which may provide authority for rights- tablished.” 14 of-way in wildlife refuges, are the Act of 6 The holder of any right-of-way in a wildlife February 15, 1901, the Act of March 4, 7 8 refuge granted by the Secretary under provi- 1991, and the ditches and canals acts. sions of the Refuge Administration Act or any Rights-of-way through wildlife refuges for other law is required to pay in advance the federally funded highways and other trans- fair market value or yearly rental value of the portation projects may be obtained under sec- right-of-way .15 If the holder is a Federal, tion 4 of the Refuge Administration Act. How- State, or local agency exempted by law from ever, federally aided transportation projects payment requirements, the agency is re- through refuge areas are subject to review quired to compensate the Secretary by other under section 4(f) of the Department of Trans- 9 acceptable means such as the loan of other portation Act. (The Mineral Leasing Act land, equipment, or personnel to the extent makes provision for oil and gas pipeline such arrangements are consistent with the rights-of-way through refuges, but requires objectives of the National Wildlife Refuge prior findings that such use is not inconsist- 10 System; otherwise the Secretary may waive ent with the purposes of the refuge.) the compensation requirement.’” After deduc- tion of necessary administrative expenses, any proceeds from private right-of-way easements on refuge system lands are deposited to the Migratory Bird Conservation Fund17 to be used for land acquisition to carry out the The National Wildlife Refuge System Ad- purposes of the Migratory Bird Conservation ministration Act authorizes the Secretary of Act18 and the Migratory Bird Hunting Stamp the Interior to permit the use of “any area Act.l9 within the system for any purpose, including but not limited to . . . access whenever he determines that such uses are compatible RIGHTS-OF-WAY UNDER OTHER with the major purposes for which such areas STATUTES were established.”11 The Secretary is further authorized to: “permit the use of, or grant Lands reserved for fish and wildlife pur- easements in, over, across, upon, through, or poses may be subject to the right-of-way pro- under any areas in the system for the pur- visions of the 1901 Act, the 1911 Act, and the poses such as, but not necessarily limited to, ditches and canals acts, which are laws of powerlines, telephone lines, canals, ditches, general applicability. Although these laws Note: Footnotes for this section appear on pp. 77-78. were partially repealed by the Federal Land Ch. 4 Federal Land Management Systems ● 75

Policy and Management Act insofar as they possible planning to minimize environmental applied to public lands and national forests, damage.28 their applicability to “other reservations” re- 20 The general position of the Fish and Wild- mains. However, the express and broad au- life Service on the use of refuge areas for thorization for wildlife refuge rights-of-way transportation projects and the use of specif- in the Refuge Administration Act would seem ic transportation modes within refuges is to be more favorable to applicants than the stated in the Final Environmental Statement trio of special right-of-way laws, especially for the Operation of the National Wildlife since payment is required even if access is Refuge System: sought under another statute.21 The right-of- The use of passenger vehicles, including way regulations issued by the Fish and Wild- ORVs is restricted in time and place to pro- life Service require that all applications for a tect wildlife, habitat, public safety, and right-of-way easement be made under the 22 Government property. Many refuges include Refuge Administration Act provisions. Ac- inland, intracoastal, and in some cases up to cess use of refuge areas that are also com- a 3-mile strip of coastal waterways. Commer- ponents of the National Wild and Scenic cial transportation use of navigable waters Rivers System or the National Wilderness is limited primarily to powered boats but sig- Preservation System is regulated by the laws nificant recreational use occurs in certain covering those systems.23 Wild and Scenic areas. Navigable waters are generally not Rivers System components administered by subject to refuge regulations as management the Fish and Wildlife Service are subject to must acknowledge State ownership of sub- the access authority for national parks in- merged lands, commitment for navigation 24 purposes, and authorities of other agencies stead of that for wildlife refuges. The Fish such as the U.S. Coast Guard or U.S. Army and Wildlife Service has declared that con- Corps of Engineers. struction of transportation facilities in desig- Regulation of access on inland and intra- nated refuge wilderness areas will not be coastal waters is generally necessary to pro- allowed without special authorization by Con- 25 tect wildlife but use of traditional navigation gress. channels is generally permitted. Regulations may include control of methods, times, and routes of access. 29 RIGHTS-OF-WAY FOR TRANSPORTATION SYSTEMS APPLICATIONS FOR RIGHTS= OF= WAY An applicant for a right-of-way across Federally funded highways, railways, or refuge lands must submit an application and waterways may be built through wildlife supporting information to the Regional Direc- refuges but they must meet certain require- tor of the Fish and Wildlife Service for the ments. First, the application for a right-of- area in which the refuge is located.30 The Fish way must be approved by the Fish and Wild- and Wildlife Service has adopted right-of- life Service and the Secretary of the Interior way procedures and requirements similar to as being compatible with the purposes for those followed by BLM.31 which the refuge was established, and arrangements for payment or other compensa- Applicants must pay a nonreturnable ap- tion must be made.26 Second, under section plication fee32 as well as all costs incurred in 4(f) of the Department of Transportation Act processing the application.33 They must also of 1966,27 the Secretary of Transportation agree to reimburse the United States for all must review the proposed project. Approval costs incurred “in monitoring the construc- may be granted only if (1) there are no feasi- tion, operation, maintenance, and termina- ble and prudent alternatives to the use of tion of facilities within or adjacent to the refuge lands, and (z) the program includes all easement or permit area.”34 All applications 76. Analysis of Laws Governing Access Across Federal Lands must include a detailed analysis of the impact applicant and indemnification against of the proposed action on the environment.35 any liability for damages arising from A map or plat accurately describing the right- occupancy or use of lands under ease- of-way must accompany each application.36 ment.42 Easements are generally granted for 50 ● Restoration of the land to its original years or so long as the right-of-way is used for condition upon revocation and termina- the purposes granted.37 All easements include tion.43 terms requiring the following: The applicant is required to pay the fair mar- ● Compliance with State and Federal laws ket value for use and occupancy of lands sub- and regulations applicable to the project ject to an easement.44 for which the easement is granted and to the lands included in the easement.38 The Regional Director may suspend or terminate an easement for failure to comply ● Soil and resource conservation and pro- 39 with any terms or conditions of the grant or tection measures. 45 for abandonment. He must give the ease- 40 ● Fire prevention. ment holder 60 days notice, during which

● time the holder may avoid suspension or ter- Rebuilding or repairing roads, fences, mination by taking such corrective action as structures, and trails destroyed or dam- is specified in the notice.46 If, at the end of the aged by construction, and building and 60 days, corrective action has not been taken, maintaining suitable crossings for roads a determination to that effect by the Regional and trails which intersect the right-of- 41 Director will operate to suspend or terminate way. the easement, without a hearing.47 There are ● Payment to the United States for dam- provisions for administrative appeals from an ages to lands or property caused by the I adverse determination.48

Photo Credit: National Park Serb’ice Kittiwakes, birds of the open ocean, nest on the cliffs of the Seward Peninsula and the islands of the Bering Sea Ch. 4 Federal Land Management Systems ● 77

’16 U.S.C. 668dd(a)(l). Fish and Wildlife Service reflect amendments to the Mineral Leasing Act and the regulations provide that: “all wildlife refuge areas are National Wildlife System Administration Act Amend- maintained for the fundamental purpose of developing ments of 1974. See 42 F.R. 43916, Aug. 31, 1977. a national program of wildlife conservation and “50 CFR 29.21(h). rehabilitation. These areas are dedicated to wildlife “16 U.S.C. 668dd[d)(2). found thereon and for the restoration, preservation, ‘61d. development, and management of wildlife habitat; for “Id. the protection and preservation of endangered or rare 1816 u.S. C, 715 et seq. wildlife and their associated habitat; and for the 1916 U,S.C. 718 et seq. management of wildlife, in order to obtain maximum Zopublic Law 94-579, section 703(a), 90 Stat. 2743. All production for perpetuation, distribution, dispersal, wildlife refuges are reservations. A discussion of the and utilization. ” 50 CFR 252. 1901 Act, the 1911 Act, and the ditches and canals acts ‘Department of the Interior, Bureau of Land Manage- is contained in the section on National Parks. ment, Public Land Statistics 1976, p, 19. 2} 16 u.S.C. 668dd(d)(2). 3The statutes cited include: 5 U.S. C. 301 which pro- 2250 CFR 19.21-l(a) as revised, 42 F.R. 43917, Aug. vides general authority to promulgate regulations; 16 31, 1977. One commentator has observed that these old U.S,C. 685, 725, 690d which are portions of acts laws are no longer cited as right-of-way authority in the establishing specific NWRS areas; 16 U.S.C. 7-15(i) regulations issued for NWRS. See Lee D. Morrison, from the Migratory Bird Conservation Act; 16 U.S.C. Rights-of-Way on Federally Owned Lands: A Journey 664 from the Fish & Wildlife Coordination Act; 43 Through the Statutes by Way of the Federal Land U.S,C. 315a from the Taylor Grazing Act; and 16 U.S.C. Policy and Management Act of 1976, 9 Transportation 460 from the Act of September 28, 1962, as amended by Law Journal 113 (1977). the Act of October 15, 1966, which provides for recrea- 23 See discussion of these systems in other sections of tional use of NWRS lands, fish hatcheries, and other this report. conservation areas administered for fish and wildlife ’416 IJ. S.C. 1284(g). purposes. Measures have been introduced in recent ZSDepartment of the Interior, Fish and Wildlife Serv- sessions of Congress to establish a governing agency ice, Final Environmental Statement on the Operation of and organic act for the NWRS. See, e.g., S. 984, 95th the National Wildlife Refuge System, p. III-82 (1976). Cong., 1st sess., 123 Cong. Rec. S4020 (daily ed. Mar. 2’16 U.S.C. 668dd(d). 11, 1977): H.R. 2082, 95th Cong., 1st sess., 123 Cong. 2749 U,S.C. 1653(f). Rec. H477 (daily ed. Jan. 19, 1977). The National ZaId. Wildlife Refuge System Administration Act Amend- zgFina] Environmental Statement, Supra, note 25, ments of 1976, Public Law 94-223, 90 Stat, 199, Feb. 27, III-82. 1976, provided that all units of the NWRS would be ad- 3050 CFR 29.21-2. ministered by the Fish and Wildlife Service (previously 3’The regulations, as revised, are set forth at 50 CFR there had been joint administration of some areas with 29,21 and 42 F.R. 43916, Aug. 31, 1977, supra, note 13. BLM) and that areas may not be removed from the Sys- 3250 CFR 29.21-l(a)(2)(i). This requirement does not tem without an Act of Congress. Section a(l) of the Act apply to State or local governments or their agencies authorized continuance of cooperative programs for and instrumentalities unless a pipeline easement is the management of resources on Alaska refuge lands. sought. 16 U.S.C. 688dd(a)(l). 3350 CFR 29,21 -2(a)(2)(ii)(D). ’16 U.S.C. 668dd. 3~50 CFR 29.21-2(a)(3)(i). See infra, note 44. 516 U.S.C. 668dd(d)(l]. 3550 CFR 29.21-2(a)(4). The analysis must be sufficient ’43 U.s.c. 959. to allow FWS to prepare an impact statement under ’43 U.S.C. 961. NEPA, if required. It must also comply with the require- ’43 U.S.C. 946-954. ments of the National Historic Preservation Act of 1966 ’49 U,S.C. 1653(f). 4(f) review only occurs when funds (16 U.S.C, 47o et seq.), the Archeological and Historical appropriated to the Department of Transportation are Preservation Act of 1974 (16 U.S.C, 469 et seq.), E.O. used. 11593 “Protection and Enhancement of the Cultural En- ’030 U.S.C. 185(b)(l)o vironment, ” May 13, 1971 (36 F.R, 8921) and “Proce- 11 1(5 U.S. C. 668dd(d)(l), dures of Historic and Cultural Properties” (36 F.R. “Id, 800). ’350 CFR 29.21-l(a). Regulations for the grant of ease- ]’50 CFR 29.21-2(b). It must be sufficiently detailed to ments for rights-of-way are set out at 50 CFR 29.21. locate accurately the right-of-way on the ground. These regulations were recently extensively revised to 3750 CFR 29.21-3(a). 78. Analysis of Laws Governing Access Across Federal Lands

3~50 CFR 2g,21-4(b)(l), imbursement can be required, 50 CFR 29.21 (a)(3)(ii) (B). 3950 CFR 2w21-4(b)(4). 4550 CFR 29.21-4(9). A rebuttable presumption of 4050 CFR 29.21-4(b)(5). abandonment is raised by deliberate failure to use all 4150 CFR 29.21-4(b)(6). or part of the easement for a continuous 2-year period. 4250 CFR 29.21-4(b)(7). 4650 CFR 29.21-4(9). The Regional Director may ex- 4350 CFR 29,21 -4( b)(10). This requirement may be tend the 60day period when extenuating circum- waived in writing, stances or other compelling reasons warrant. 4450 CFR 29.21-7. Payment may be made in a lump 4750 CFR 29.21-4(9). Holders of rights-of-way under sum or through annual fair market rental payments. the Mineral Leasing Act are entitled to a formal hear- Federal, State, or local agencies, exempted from pay- ing conducted pursuant to 5 U.S.C. 554 prior to a final ment by Federal law, shall compensate by other means decision to suspend or terminate, Other easement hold- such as making land available or loaning equipment or ers do not have the right to this procedure. personnel. A separate provision requires a nonreturn- 4’50 CFR 29.22. Appeals may be taken from any final able payment within 60 days of the grant of an ease- disposition by the Regional Director to the Director. ment under a schedule based on the length of the ease- Decisions of the Director may be appealed to the Sec- ment, 50 CFR 29,21 -2(a)(3)(ii). This payment is to defer retary of the Interior. The procedure for such appeals costs incurred in monitoring activities on the easement, is set out at 43 CFR part 4, subpart G. If actual costs for monitoring are greater, additional re-

NATIONAL FOREST SYSTEM

The National Forest System consists of tional forest lands for access purposes is over 187.5 million acres1 of forest, rangeland, found in Title V of the Federal Land Policy and other lands and waters administered by and Management Act of 197610 and in laws the Forest Service of the Department of Agri- authorizing development of the National For- culture. 2 The national forests are established est Transportation System.11 National forest and maintained “to improve and protect the components of the National Wilderness Pres- forest,” to secure “favorable conditions of ervation System and the National Wild and water flow, ” “to furnish a continuous supply Scenic Rivers System are managed under the of timber, ”3 and for other outdoor recreation, laws and regulations applicable to those sys- range, timber, watershed, fish, and wildlife tems in addition to the general laws govern- purposes.4 The national forests are managed ing the National Forest System. Access uses on a multiple-use sustained-yield basis5 with of these areas are limited and are discussed “due consideration” given to “the relative under sections of this report on those sys- values of the various resources in a particu- tems. lar area,” including wilderness values.6 Un- der the Forest and Rangeland Renewable Re- THE BLM ORGANIC ACT 7 sources Planning Act of 1974, units of the The Federal Land Policy and Management National Forests System are to be admin- Act of 1976, commonly referred to as the istered according to land and resource man- BLM Organic Act, established comprehen- agement plans prepared under the Renew- sive right-of-way authorization for the Secre- able Resources Program developed by the De- tary of the Interior for the public lands and partment of Agriculture as part of a continu- the Secretary of Agriculture for the national ing responsibility to inventory and assess 8 forests, except for those areas designated as renewable resources uses and supplies. De- wilderness. The Act repealed many older velopment of mineral resources is a generally right-of-way laws including the Act of Febru- recognized and accepted use of national 12 13 9 ary 15, 1901, the Act of March 4, 1911, and forests. the ditches and canals acts14 to the extent Clear statutory authority for the use of na- that they applied to public lands and national Note: Footnotes for this section appear on pp. 81-82. forests. 15 Ch. 4 Federal Land Management Systems . 79

Under Title V, permits for rights-of-way and necessary for its safe operation and for may be granted for: such additional area as needed for the con-

● struction, maintenance, or termination of the Systems and facilities for impoundment, 21 storage, transportation, or distribution right-of-way project. The use of corridors of water; for rights-of-way in common maybe required where practical to minimize adverse environ- ● Pipelines and other systems for trans- mental impacts.22 The holder must pay the ad- portation and storage of liquids and ministrative costs associated with the issu- gases other than water, or petroleum or ance and monitoring of the right-of-way, as natural gas products; well as for the fair market value of the right-

● of-way, unless such payment is waived or Pipelines, slurries, and other transporta- 23 tion systems for solid materials and re- other financing arrangements exist. Each lated storage facilities; grant of a right-of-way must contain enforceable provisions requiring compliance with ap- ● Electric power projects (subject to com- plicable Federal and State standards for pliance with Federal Energy Regulatory health, safety, and environmental protection, Commission (FERC) requirements); compliance with conditions for protection of s Communications systems; scenic, esthetic, and fish and wildlife values, and protection of the interests of other lawful ● Transportation purposes such as roads, users and the public in the lands covered by highways, canals, and airways, except the right-of-way .24 No right-of-way will be where they are associated with commer- issued or renewed unless the Secretary de- cial recreation facilities on National For- termines that the applicant has “the techni- est System lands; or cal and financial capability to construct the project for which the right-of-way is re- ● Other necessary transportation systems quested” in accordance with all terms and or other systems or facilities in the pub- 25 lic interest requiring rights-of-way over conditions imposed. National Forest System lands. ” The applicant for a right-of-way must provide THE NATIONAL FOREST the Secretary with any contracts, plans, and TRANSPORTATION SYSTEM other information reasonably related to the use of the right-of-way that are needed for a In the Act of October 13, 196426 Congress decision on the issuance or renewal of the declared that “the construction and mainte- right-of-way and on any terms or conditions nance of an adequate system of roads and required. ’7 When appropriate, the Secretary trails within and near national forests and may also require the applicant to provide in- other lands administered by the Forest Serv- formation on the competitive effect of the ice is essential if increasing demands for tim- right-of-way. Business entities must disclose ber, recreation, and other use of such lands ownership and other relevant financial infor- are to be met.”27 The anticipated effects of mation. 19 If a proposed use might have a sig- the existence of such a road system would be nificant impact on the environment, the appli- an increase in “the value of timber and other cant is required to submit a plan for the con- resources tributary to such roads” and im- struction, operation, maintenance, and reha- proved ability of the Secretary of Agriculture bilitation of the right-of-way in compliance to provide for the “intensive use, protection, with stipulations and regulations issued by development, and management of these lands the Secretary prior to approval of the appli- under principles of multiple use and sus- cation. 20 tained yield of products and services.”28 Rights-of-way will be granted for a reason- To promote development of a forest roads able term for the area occupied by the project and trails system, the Secretary of Agricul- 80 ● Analysis of Laws Governing Access Across Federal Lands ture is authorized to grant permanent or tem- CONFLICT BETWEEN ACCESS porary easements for road rights-of-way over PROVISIONS national forests or other lands administered by the Forest Service or related lands in which the Department has an interest under The two statutes discussed above differ in the terms of the grant to it.29 The easement some material respects. Section 510(a) of the may be terminated by consent of the owner, BLM Organic Act provides that, in the event by condemnation, or for non-use for a period of any conflict between the requirements of of 5 years.30 The Secretary may, under the Title V and the Act of October 13, 1964, the forest development road program, provide for latter Act will prevail.37 When dealing with the acquisition, construction, and mainte- components of the National Forest Transpor- nance of such roads within and near National tation System, the Secretary need not apply Forest System lands.31 These roads are to be any provisions of Title V. Rights-of-way that located and built in such a manner as to per- are not roads built under the 1964 Act are mit maximum economy in timber harvesting, governed by Title V. A proviso states that it while meeting requirements for protection, shall not be mandatory for the Secretary of development, and management of lands and Agriculture to apply limitations on rights-of- resources in surrounding non-Federal lands. way, ownership disclosure requirements, or Roads may be financed by departmental ap- any other condition contrary to established propriations, requirements on the purchasers practices under the 1964 Act when dealing of national forest timber and resources, with any forest roads.38 A clear implication of cooperative financing with public or private the proviso, however, is that the Secretary agencies or individuals, or a combination of may apply such provisions at his discretion. these methods.32 The Secretary may also re- Forest Service regulations implementing quire users of Forest Service roads to main- 39 tain or reconstruct the roads in relation to the 1964 Act stress a policy of coordinated their proportionate share of total use or to planning that takes into account the transportation and resource development needs of provide a deposit against the costs of mainte- 40 nance or reconstruction.33 surrounding communities. Each unit of the National Forest System is to have a plan for a Congress has directed that the develop- transportation system for the protection and ment of a transportation system to serve the utilization of the area, or the development of national forests be carried forward in time resources on which communities within or “to meet anticipated needs on an economical adjacent to the national forest are depend- and environmentally sound basis and that ent.41 Use of existing roads and trails in the methods chosen to finance the construction National Forest System is permitted subject and maintenance of the system should be to certain regulations for protection and ad- such as to enhance local, regional, and na- ministration of lands and apportionment of tional benefits. ”34 All roads constructed on costs. 42 Easements for construction or use of a National Forest System lands must meet road across Forest Service lands may be “standards appropriate for the intended granted for a reciprocal benefit, or condi- uses, considering safety, cost of transporta- tioned on payment of reasonable charges and tion, and impacts on land and resources.”35 acceptance of necessary and appropriate Unless a permanent road is necessary as part terms and conditions.43 Applications under of the National Forest Transportation Sys- the 1964 Act are made to the Chief of the tem, any road constructed in connection with Forest Service. Permits may be required for a timber contract or other lease or permit commercial hauling of non-Federal forest must be designed so that vegetative cover will products or other commodities and materials be reestablished by natural or artificial on designated “special service roads” condi- means within 10 years of termination of oper- tioned on meeting proportionate costs of use ation. 36 or appropriate terms and conditions of opera- Ch. 4 Federal Land Management Systems ● 81 tion.44 In circumstances where transportation prepare an environmental impact statement systems serving forest lands and inter- for any proposed actions that might affect the mingled and adjacent non-Federal lands are wilderness potential of roadless lands in the undeveloped or inadequate, the Chief of the RARE II inventory.48 To minimize disruption Forest Service may join in cooperative plan- and uncertainty, the Forest Service hopes to ning, financing, construction, and mainte- conclude the evaluation of all areas in the in- nance of roads to the extent that it is feasible ventory by early 1979, at which time inven- and advantageous to the United States.45 toried lands will be divided into three categories— “recommended wilderness,” “further evaluation, ” and “no further wilderness con- ROADLESS AREA REVIEW sideration. ’49 Areas in the first two categories will be managed to protect wilderness The Forest Service is currently engaged in potential and access may well be limited.50 a major review of all potential wilderness The size of final wilderness designation is areas in the forest system called the Roadless 40 uncertain. The Forest Service has established Area Review and Evaluation (RARE 11). It a program goal in its Renewable Resource has identified approximately 67 million acres Program that calls for the eventual designa- of roadless areas, including 18 million acres tion of 25 million to 30 million acres of forest in Alaska, which might be suitable for desig- land in the wilderness system (as of Decem- nation as wilderness .47 ber 1977, there were 12.5 million acres of As a result of an out-of-court settlement, land in the National Wilderness Preservation the Forest Service has agreed that it will System) .5’

FOOTNOTE REFERENCES FOR NATIONAL FOREST SYSTEM

‘Bureau of Land Managment, Public Land Statistics adjustments in use to conform to changing needs and 1976. There are 20.7 million acres of National Forest conditions; that some land will be used for less than all System lands in Alaska. of the resources; and harmonious and coordinated 2The National Forest System is defined in the Forest management of the various resources, each with the and Rangeland Renewable Resources Planning Act of other without impairment of the productivity of the 1974 as “all national forest lands reserved or with- land, with consideration being given to the relative drawn from the public domain of the United States, all values of the various resources, and not necessarily the national forest lands acquired through purchase, ex- combination of uses that will give the greatest dollar change, donation, or other means, the national grass- return or the greatest unit output. 16 U.S.C. 531(a). lands and land utilization projects administered under “Sustained yield of the several products and serv- title 111 of the Bankhead-Jones Farm Tenant Act (7 ices” means the achievement and maintenance in per- U.S.C, 1010 et seq.), and other lands, waters, or in- petuity of a high-level annual or regular periodic output terest therein which are administered by the Forest of the various renewable resources of the national for- Service or are designated for administration through ests without impairment of the productivity of the land. the Forest Service as a part of the system. ” 16 U.S.C. 16 U.S.C. 531(b). 1609. 816 U.S. C. 529. 316 U.S.C. 475. 716 U.S.C, 1601 et seq., as amended by the National 416 U.S.C. 528. Forest Management Act of 1976, Public Law 94-588, 90 SId. As defined in the Multiple-Use Sustained-Yield Stat. 2949. Act of 1960, “multiple use” means: the management of L116 U.S, C, 1604. Until a plan is developed for a given all the various renewable surface resources of the na- unit, management continues under existing plans, 16 tional forests so that they are utilized in the combina- U.S.C. 1604(c). tion that will best meet the needs of the American peo- ’16 U.S.C. 528. The Multiple-Use and Sustained-Yield ple; making the most judicious use of the land for some Act of 1969. or all of these resources or related services over areas ’043 U,S.C. 1761 et seq. large enough to provide sufficient latitude for periodic 1’16 U.S.C. 532-538, 16 U.S.C. 1608. 82 ● Analysis of Laws Governing Access Across Federal Lands

1243 U.S.C. 959, 16 U.S.C. 522. 4236 CFR 212.7,212.12. 1343 U.S.C. 961, 16 U.S.C. 523. 4336 CFR 212.10 “43 U,S,C. 946-951, 4436 CFR 212.10. ISFor a discussion of these laws, see section on Na- 4536 CFR 212.9(d). tional Parks. ‘eThe background and history of RARE II and its 1643 U.S.C. 1761(a). predecessor, RARE I, are highly involved. A summary 1743 LJ. S.C. 1761(b)(l). may be found in Senate Committee on Energy and Nat- ]aId, ural Resources, Roadless Area Review and Evaluation, 1’43 U.S.C. 1761(b)(2). Publication 95-92, February 1978, (committee print). 2043 U.S.C. 1764(d). The Forest Service has issued no rules or regulations 2 143 U.S.C. 1764(a). for the management of the RARE II process. Policy 2243 U.S.C. 1763. directives have come from Interim Directives in the For- 2’43 LJ, S.C. 1764(g). est Service Manual or from the “RARE II Notebook” 2443 U,S.C. 1765. compiled by Forest Service staff personnel working on 2’43 U,S.C. 1764(j). RARE II. zs~blic Law 88-657, 78 Stat. 1089, 16 U.S.C. 532-538. 4742 F,R. 59688, Nov. 18, 1977. An accelerated land 2716 U.S.C, 532. management program is being undertaken in the 261d. Tongass National Forest which contains 1,3 million 2e16 U.S.C. 533. acres of roadless area. Forest Service Manual, chapter ’16 U.S.C. 534, 8260, Interim Directive No. 5, p. 9. 3116 U.S. C. 535, 4aStatement of Dr. M. Rupert Cutler, Assistant Secre- Sqd. When a higher quality road is needed than that tary for Conservation, Research, and Education, De- necessary for purchasers’ removal of forest resources partment of Agriculture, committee print, supra, note or timber, the purchasers may be required to meet the 46, p. 5. Environmental impact statements area normal costs proportionate to their use. component of land management plans required by sec- 3316 U.S.C, 537. tion 6 of the Forest and Rangeland Renewable Re- 3416 U.S.C. 1608(a). sources Planning Act of 1974. Forest Service decisions ’516 U.S.C. 1608(C). on access must be consistent with the land manage- 3616 LJ. S.C. 1608(b). ment plan. 3743 U.S.C. 1770(a). 49RARE II Notebook, Inset HI, ‘‘RARE II Process. SeId. ‘Protective management will not be accomplished 39The regulations are at 36 CFR 212.1. It should be through the land management planning process, supra, noted that these regulations address issues germane to note 48. Most of the areas that will be included in the the development of a transportation system by the Gov- two categories presently are not used for access or any ernment. With the exception of provisions for “special other activity; they are considered “de novo wilder- service roads, ” there is little that addresses fact situ- ness,” Access or any other new activity can only be ations involving applicants seeking a right-of-way for permitted pursuant to a land management plan or by their own use. other action of the Forest Service requiring an EIS. 40See 36 CFR 212.1(c), 212.2.3, 212.8( a),212.O(d). S] Department of Agriculture, Final Environment) 4136 CFR 212.3. The regtiations define a forest devel- Statement and Renewable Resource Program, 1977 to opment transportation plan as a “plan for the system of 2020, p, 97. (1976). See also committee print, supra, access roads, trails, and airfields needed for the pro- note 46, p. 36, (Statement of Dr. Cutler). In June 1978 tection, administration, and utilization of the national the Forest Service issued the Draft Environmental forests and other lands administered by the Forest Statement on Roadless Area Review and Evaluation Service, or the development and use of resources upon (RARE 11) consisting of a national programmatic volume which communities within or adjacent to the national and 20 State and regional supplemental volumes. forests are dependent.” 36 CFR 212,1(c). Ch. 4 Federal Land Management Systems ● 83

NATIONAL WILD AND SCENIC RIVERS SYSTEM

The Wild and Scenic Rivers Act of 19681 accessible by road or railroad, which established a national policy that selected may have some development along their rivers and their surrounding environments shorelines, and which may have under- possessing “outstandingly remarkable sce- gone some impoundment or diversion in nic, recreational, geologic, fish and wildlife, the past.4 historic, cultural, or other similar values A component of the National Wild and Sce- shall be preserved and protected in a free- nic Rivers Systems is managed “in such man- flowing condition for the benefit of present ner as to protect and enhance the values and future generations.”2 The National Wild which caused it to be included in the system, and Scenic Rivers System was created to im- without insofar as is consistent therewith, plement this policy. It consists of all river limiting other uses that do not substantially units included by congressional designation interfere with public use and enjoyment of or by State action (subject to approval by the these values.”5 Management plans for each Secretary of the Interior after review by ap- 3 component river may allow varying degrees propriate Federal agencies). of protection and development based on its special attributes. Primary emphasis, how- ADMINISTRATION OF THE SYSTEM ever, must be given to protecting esthetic, scenic, historic, archeologic, and scientific Congressionally designated components of features.’ the National Wild and Scenic Rivers System are administered by either the Secretary of Wild and scenic rivers under the jurisdic- Agriculture through the Forest Service or by tion of the National Park Service are part of the Secretary of the Interior through one of the National Park System and are subject to the Department’s land management agencies, laws governing the administration of the park principally the National Park Service and the system. Components administered by the Fish Fish and Wildlife Service. State-designated and Wildlife Service are part of the National rivers are under State administration consist- Wildlife Refuge System and subject to all ent with the purposes of the Wild and Scenic laws applicable to wildlife refuges. The Sec- Rivers Act. There are three classifications of retary of the Interior may also use any gen- rivers in the system: eral statutory authority relating to national parks, and any other authority available to 1. Wild river areas—Those rivers or sec- him for recreation and preservation purposes tions of rivers, which are free of im- or for natural resources conservation and poundments and generally inaccessible management, which he deems appropriate except by trail, with watersheds or for the administration of any component of shorelines essentially primitive and the Wild and Scenic Rivers System.7 The Sec- waters unpolluted. retary of Agriculture may use any statutory 2. Scenic river areas—Those rivers or sec- authority relating to the National Forest Sys- tions of rivers, which are free of im- tem for purposes of the administration of components of the Wild and Scenic Rivers poundments, with shorelines or water- 8 sheds still largely primitive and shore- System. Whenever there is a conflict be- lines largely undeveloped, but accessible tween the provisions of the Wild and Scenic in places by roads. Rivers Act and such other authority, the more restrictive provisions are applied.9 Com- 3. Recreational river areas—Those rivers ponents of the National Wild and Scenic or sections of rivers, which are readily Rivers System within designated wilderness Note: Footnotes for this section appear on p. 88. areas are managed according to provisions of 84 ● Analysis of Laws Governing Access Across Federal Lands

both systems, and in case of conflict between Federal-State efforts. Priority is given to the provisions of the two Acts, the Wilderness study of those potential additions to the sys- Act provisions shall be applied.10 tem where there is the greatest likelihood of development and there is the greatest proportion of private lands.12 Proposals for inclusion RIVER STUDIES of a river in the system must be accompanied by a report to Congress and the President Any wild, scenic, or recreational river showing the characteristics of the area that area possessing one or more scenic, recrea- affect its suitability for inclusion: tional, archeologic, or scientific values and in a free-flowing condition, or upon restoration ● The current status of land ownership to such condition, may be considered for in- and use; clusion in the Wild and Scenic Rivers System. ● The effect of inclusion on potential land As of December 1976, 16 rivers have been and water uses; designated as components of the system, and 58 rivers have been nominated by Congress . The proposed administering agency; for study. (See tables 2 and 3.) No Alaskan ● The extent to which cost and administra- rivers have been designated or nominated for tion may be shared with State or local study. All Alaska National Interest Lands government; and proposals contain some wild and scenic rivers designations. The Secretary of the In- s The estimated costs of acquiring neces- terior and the Secretary of Agriculture are sary lands and interests in land and ad- responsible for conducting studies of all ministrative costs .13 rivers nominated by Congress as potential Prior to recommendation to Congress, the wild and scenic rivers, and submitting a report is reviewed by the Secretaries of the report on the suitability of each river to the Interior, Agriculture, and the Army, and the President, who, in turn, forwards his recom- Chairman of the Federal Energy Regulatory mendation to Congress.11 Cooperation of ap- Commission (FERC, formerly the Federal propriate State and local governments is Power Commission), and the heads of other sought, and reports may be prepared as joint affected Federal agencies; and if non-Federal

Table 2.-Component Rivers of the National Wild and Scenic Rivers System*

Rogue, Oreg. Saint Croix, Minn. and Wis. Salmon, Middle Fork, Idaho Wolf, Wis.

9. Lower Saint Croix, Minn. (added by Congress 13. Allagash Wilderness Waterway, Maine (added in 1972) by State action in 1970) 10. Chattooga, N. C., S. C., and Ga. (added by 14. Little Miami, Ohio (added by State action in Congress in 1974) 1973) 11. Rapid, Idaho (added by Congress in 1975) 15. Little Beaver, Ohio (added by State action in 12. Upper Middle Snake, Idaho and Oreg. (added 1975) by Congress in 1975) 16. New River, N.C. (added by State action in 1976)

● Only the names of the river, forks, and States are given here; the particular segment or segments designated by Con- gress are specified in 16 U.S.C. 1274, as amended. Further information about the rivers added by State action may be obtained from appropriate State agencies. Ch. 4 Federal Land Management Systems “ 85

Table 3.—Rivers Designated as Potential Additions to the National Wild and Scenic Rivers System*

Designations made in October 1968 Allegheny, Pa. 15. Obed, Term. Bruneau, Idaho 16. Penobscot, Maine Buffalo, Term. 17. Pere Marquette, Mich. Chattooga, N. C., S. C., and Ga. 18. Pine Creek, Pa. Clarion, Pa. 19. Priest, Idaho Delaware, Pa. and N.Y. 20. Rio Grande, Tex. Flathead, Mont. 21. Saint Croix, Minn. and Wis. Gasconade, Mo. 22. Saint Joe, Idaho Illinois, Oreg. 23. Salmon, Idaho Little Beaver, Ohio 24. Skagit, Wash. Little Miami, Ohio 25. Suwanee, Ga. and Fla. Maumee, Ohio and Ind. 26. Upper Iowa, lowa Missouri, Mont. 27. Youghiogheny, Md. and Pa. Moyie, Idaho

Designations made in January 1975 28. American, Cal if. 43. Los Pines, Col. 29. Au Sable, Mich. 44. Manistee, Mich. 30. Big Thompson, Col. 45. Nolichuckey, Term. and N.C. 31. Cache la Poudre, Col. 46. Owyhee, South Fork, Oreg. 32. Cahaba, Ala. 47. Piedra, Col. 33. Clark’s Fork, Wyo. 48. Shepaug, Corm. 34. Colorado, Col. and Utah 49. Sipsey Fork, West Fork, Ala. 35. Conejos, Cot. 50. Snake, Wyo. 36. Elk, Col. 51. Sweetwater, Wyo. 37. Encampment, Col. 52. Tuolumne, Cal if. 38. Green, Col. 53. Upper Mississippi, Minn. 39. Gunnison, Col. 54. Wisconsin, Wise. 40. Illinois, Okla. 55. Yampa, Col. 41. John Day, Oreg. 56. Dolores, Col. 42. Kettle, Minn.

Designation made in December 1975 57. Lower Middle Snake, Idaho, Oreg., and Wash.

Designation made in October 1976 58. Housatonic, Corm.

● Only the names of the rivers, forks, and States are given here; the particular segment or segments designated for study are specified in 16 U.S.C. 1276, as amended. lands are involved, the Governor(s) of the af- PROTECTIONS AFFORDED WILD fected State(s). The comments received are AND SCENIC RIVERS included in the submission to the President 14 and Congress. The final determination is Restrictions on Private Development made by Congress. Historically, however, some rivers have been included directly in the Once designated as components of the sys- system without prior nomination and study. ’5 tern, river areas receive several types of pro-

40-8,14 () - ‘ig - 7 86. Analysis of Laws Governing Access Across Federal Lands tection. Some activities of private landown- priations for, a water resources project hav- ers, which might jeopardize the character of ing a direct and adverse effect on protected the river, can be restricted by the purchase of values of a component river area without land or the acquisition of scenic easements” notifying the Secretary of the administering within the boundaries of the administrative department and Congress of its intention and unit. The Act authorizes the appropriation of the possible effects on the protected values.26 funds for the acquisition of land and scenic 17 Rivers nominated for potential inclusion in easements, but it places some stringent the system are also subject to restrictions on limits on the scope of this approach. water resources projects until 1978 or for 3 The first limit is found in the boundaries of years after nomination, whichever is later, the administrative unit. Boundaries may in- and during any additional time necessary to clude no more than an average of 320 acres complete study and congressional actions.27 per mile on both sides of the river,l8 i.e., an In addition, the Secretaries of the Interior average of one-quarter of a mile on a side. and Agriculture and the heads of other Fed- Within these boundaries, the Secretaries of eral agencies must review their management the Interior and Agriculture cannot purchase policies and activities affecting lands under title to an average of more than 100 acres per their jurisdiction that include, border, or abut 19 mile. Furthermore f they may not condemn river areas nominated as potential compo- property if more than 50 percent of the total nents and determine the actions necessary to area is owned by Federal, State, and local protect the river area during the period of governments, 20 nor may they condemn any review with particular attention given to property within an incorporated city, village, “scheduled timber harvesting, road construc- or borough that has in force “satisfactory tion, and similar activities” which might be zoning ordinances” designed to protect the contrary to the purposes of the Act.28 river area.21 In areas of extensive private landownership, regulation by purchase must, Restrictions on Federal Land Management of necessity, depend on the purchase or con- Agencies demnation of scenic easements within the river area boundaries.22 The Act also restricts the ability of Federal land management agencies administering Restrictions on Water Resource Projects units of the system to take or permit actions that would detrimentally affect wild and The plenary Federal power over navigable waters forms the basis for a second type of scenic rivers. protection. The Act restricts water resources Each river is administered for the protec- projects and other activities which directly tion and enhancement of the values that jus- affect river areas of the system. FERC may tified its inclusion in the system.29 Each com- not license water resources or other projects ponent is also managed according to the “on or directly affecting a river in the general statutory authority of the administer- system. “23 Other Federal agencies may not ing agency with the most restrictive provi- assist projects which would have a “direct sions of law applying in case of any conflict.30 and adverse effect on the values for which River areas may thus become doubly or triply such river was established.”24 However, the protected as wild, scenic, or recreational Act does not prohibit projects above or below rivers, as units of national conservation sys- the designated river area that do not invade tems, i.e., national parks, wildlife refuges, or the area or unreasonably diminish the scenic, forests, and as part of the National Wilder- recreational, and fish and wildlife values ness Preservation System. The administering present in the area on October 2, 1968, the agency must cooperate with the Secretary of date the Act was passed.25 No Federal agency the Interior and the appropriate water pollu- may recommend authorization of, or appro- tion control agencies for the purpose of elimi- Ch. 4 Federal Land Management Systems ● 87 nating or diminishing the pollution of waters confer a right-of-way for drainage and irriga- in the component river area.31 tion projects subject to the filing of necessary maps and documents and approval of the location as one not interfering with proper RIGHTS-OF-WAY occupancy by the Government. The Wild and Scenic Rivers Act authorizes Easements through wild and scenic rivers “easements and rights-of-way upon, over, units administered by the Fish and Wildlife under, across, or through any component of Service are to be granted under park system the National Wild and Scenic Rivers Sys- laws39 instead of the specific right-of-way pro- tem.” 32 Rights-of-way across any component visions for wildlife refuge system lands.40 river areas administered by the Secretary of Rights-of-way across any wild and scenic the Interior are issued in accordance with rivers managed by the BLM would also be laws applicable to the National Park Sys- 33 issued under Park Service standards, rather tem. Rights-of-way for components admin- than provisions applicable solely to public istered by the Secretary of Agriculture are lands. issued under laws relating to the National Forest System.34 Any conditions placed on the The Secretary of Agriculture has general issuance of a right-of-way or easement must right-of-way authority for forest system lands be related to the purposes of the Wild and under Title V of the Federal Land Policy and Scenic Rivers Act. Management Act,41 and has additional authority to grant easements for roads and The principal legal bases for the grant of trails under laws relating to development of easements or rights-of-way in National Park the National Forest Transportation System.42 System lands are found in (a) the general authority to manage the national parks in Other provisions of the Wild and Scenic conformance with the purposes of preserva- Rivers Act that are relevant to access to tion and recreation;35 (b) the Act of February minerals on non-Federal land are: (a) the re- 15, 1901, granting revocable rights-of-way view process for potential rivers, which infor electric powerlines, water, and communi- cludes an assessment of the effects of the des- cations projects on a finding that the use is ignation on the existing and potential uses of “not incompatible with the public interest; "36 the lands and waters involved;43 (b) the scenic (c) the Act of March 4, 1911, which grants a and recreational river classifications, which right-of-way for a period of up to 50 years for allow roads and some development;44 and (c) communications and electric power systems the provision assuring the existing rights of subject also to a finding that the project is any State, including the right of access, to the “not incompatible with the public interest;”37 bed of navigable waters located in a compo- and (d) the ditches and canals acts,38 which nent river area.45 88 “ Analysis of Laws Governing Access Across Federal Lands

FOOTNOTE REFERENCES FOR NATIONAL WILD AND SCENIC RIVERS SYSTEM

’16 U.S.C. 1271 et seq. of land (including the air space above such land) within Z16 U.S. C. 1Z71. AS defined in the Wild and Scenic the authorized boundaries of a component of the wild Rivers Act: “ ‘Free-flowing, ’ as applied to any river or and scenic rivers system, for the purpose of protecting section of a river, means existing or flowing in natural the natural qualities of a designated wild, scenic, or condition without impoundment, diversion, straighten- recreational river area, but such control shall not af- ing, rip-rapping, or other modification of the waterway. fect, without the owner’s consent, any regular use exer- The existence, however, of low dams, diversion works, cised prior to the acquisition of the easement. ” 16 and other minor structures at the time any river is pro- U.S.C. 1286(c), posed for inclusion in the national wild and scenic ’716 U.S.C. 1277(a). rivers system shall not automatically bar its considera- 1816 u.S. C. 1274(b). tion for such inclusion: Provided, that this shall not be ’916 U.S.C, 1277(a). construed to authorize, intend, or encourage future Z016 U.S.C. 1277(b). construction of such structures within components of 2’16 U.S,C. 1277(c). the National Wild and Scenic Rivers System. ” 16 U.S.C. 22 Condemnation of easements is specifically ex- 1286(b). empted from the acreage limitations of 16 U.S.C.

3A listing of component rivers and potential additions 1277(a). to the National Wild and Scenic Rivers System is in- ’316 u.S, C. 1278(a). cluded in tables 2 and 3. A river may be included by Z.’ Id. State action if: (1) it is designated as a wild, scenic, or 251d. recreational river pursuant to State law; (2) it is perma- 2616 U.S, C. 1278(c). nently administered by an agency or political subdivi- 2716 U,S. C. 1281, sion of the State without expense to the United States; 2a16 U.S.C. 1283(a). and (3) the Secretary of the Interior, upon application 2916 U.S. C. 1281. by the Governor of the State, finds that it meets the 3016 U.S.C. 1281(c). criteria in the Act and approves it for inclusion in the 3’16 U.S.C. 1283(c). System. 16 U.S,C. 1274. 3216 U.S.C. 1284(g). 416 U.S.C. 1273(b). 331d. 516 U.S,C. 1281(a). 341d. ‘Id. 3516 U.S. C, 1 et seq. See discussion in section on Na- 716 U.S.C. 1281(c). tional Parks. ’16 U.S, C. 1281(d), 38Act of February 15, 1901, c. 372, 31 Stat. 790, 43 ’16 U.S. C. 1281(c). U.S.C, 959, 16 U.S.C, 79,522, ’016 U.S. C. 1281(b). 37Act of March 4, 1911, c.238, 36 Stat, 1253,43 U.S.C. “16 U.S.C. 1275(a). 961, 16 U.S.C. 5,420,523. “Id. 3843 U.S.C. 946-954. “Id. 3916 U.S, C, 1284(g). 1416 u.s.C. 1275(b) and(c). 4016 U.S.C. 668dd(d)(l). l$For example, eight original component rivers and “43 U,S.C. 1761 et seq. See discussion in section on the Rapid River, Idaho and Upper Middle Snake River, National Forest System. Idaho and Oregon were included by direct congres- 4216 U.S.C. 532-538. sional action. Act of December 31, 1975, Public Law 4316 U.S.C. 1275(a). 94-199, section 3(a), 89 Stat. 1117, 4416 U.S.C, 1273(b). 18A scenic easement for purposes of the Wild and 4516 U.S.C, 1284(f). Scenic Rivers Act, “means the right to control the use Ch. 4 Federal Land Management Systems ● 89

NATIONAL WILDERNESS PRESERVATION SYSTEM

The Wilderness Act of 19641 created the For the purposes of the Wilderness Act, a National Wilderness Preservation System to “wilderness area” is further defined as: provide “the benefits of an enduring resource of wilderness”2 for the whole Nation. Con- .,, an area of undeveloped Federal land gressionally designated wilderness areas in retaining its primeval character and in- national parks, forests, wildlife refuges, and fluence, without permanent improvements or human habitation, which is protected and public lands are managed under special rules “for the use and enjoyment of the American managed so as to preserve its natural conditions and which (1) generally appears to have a as will people in such manner leave them been affected primarily by the forces of unimpaired for future use and enjoyment as 3 nature, with the imprint of man’s work sub- wilderness." In keeping with the purpose of stantially unnoticeable; (2) has outstanding wilderness preservation, the use of wilder- opportunities for solitude or a primitive and ness areas is highly restricted. Statutory pro- unconfined type of recreation; (3) has at least visions for access through wilderness areas five thousand acres of land or is of sufficient are limited, since such use, generally, is size as to make practicable its preservation viewed as inconsistent with the maintenance and use in an unimpaired condition; and (4) of the primeval character of wilderness. may also contain ecological, geological, or 4 other features of scientific, educational, Section 2(c) of the Wilderness Act de- scenic, or historical value.6 scribes the special character of wilderness that the Act seeks to preserve: Most of Alaska’s land unquestionably fits this A wilderness, in contrast with those areas 7 where man and his own works dominate the characterization. In the current debate over landscape, is hereby recognized as an area national interest lands in Alaska one of the where the earth and its community of life are most controversial issues is how much of the untrammeled by man, where man himself is a land proposed for inclusion in the national visitor and does not remain.5 conservation systems should be legislatively Note: Footnotes for this section appear on pp. 97-99. classified as wilderness.

— Table 4.— Wilderness Areas in Alaska —— Date of Designation

Bering Sea Wilderness— Oct. 23, 1970 Bering Sea National Wildlife Refuge, Alaska Bogoslof Wilderness— Oct. 23,1970 Bogoslof National Wildlife Refuge, Alaska Chamisso Wilderness— Jan. 3, 1975 Chamisso National Wildlife Refuge, Alaska Forrester Island Wilderness— Sept. 28, 1969 Forrester Island National Wildlife Refuge, Alaska Hazy Islands Wilderness— Oct. 23, 1970 Hazy Islands National Wildlife Refuge, Alaska Saint Lazaria Wilderness— Oct. 23, 1970 Saint Lazaria National Wildlife Refuge, Alaska Simeonof Wilderness— Oct. 19,1976 Simeonof National Wildlife Refuge, Alaska Tuxedni Wilderness— Oct. 23, 1970 Tuxedni National Wildlife Refuge, Alaska 90 S Analysis of Laws Governing Access Across Federal Lands

DESIGNATION OF Section 3(b) required the Forest Service to WILDERNESS AREAS survey the 34 areas classified as “primitive”13 on the date of enactment; section 3(c) Lands may be added to the National Wil- required the Secretary of the Interior to derness Preservation System only by an act of review all roadless areas of 5,000 acres or Congress.8 The Wilderness Act itself does not more in any unit of the Park System and roadless areas and roadless islands in wildlife establish any single process to be used before 14 Congress acts on potential wilderness desig- refuges and game refuges . nations. Several approaches have been used Under these provisions, the Secretaries of in adding to the wilderness system. the Interior and Agriculture were required to make reports to the President within 10 Instant Wilderness years. 15 The Act mandated public notice of any potential designations,16 hearings in the The first approach has been called “in- affected areas,17 and consultation with State stant wilderness”—certain areas are in- and local officials prior to making any re- cluded in the system by direct congressional port.18 The Wilderness Act required that the action without prior congressional nomina- President make recommendations to Con- tion or executive review. More than half of all gress on the basis of the departmental wilderness designations have been made this reports. Recommendations on at least one- way. The 1964 Wilderness Act designated 54 third of all areas were to be made within 3 national forest areas containing some 9.1 9 years of enactment, recommendations on at million acres, which had been administra- least two-thirds within 7 years, and all areas tively classified as “wilderness,” “wild,” or were to be completed within 10 years.19 “canoe” areas, as the original components of the system. The Eastern Wilderness Act of The study provisions in the original Act did 1974,10 which applied to lands in national not establish any policies or procedures for forests east of the 100 meridian, added 16 interim management for areas under study. areas totaling some 207,000 acres in 13 East- None of the areas covered by sections 3(b) ern States to the system. None of these areas and 3(c) was subject to multiple-use management. Primitive areas were under protective had been subject to any wilderness study 20 process. The Omnibus Wilderness Act of Forest Service management and the Act 1976, 11 creating wilderness areas in the Na- stated that, “Nothing contained herein shall, tional Wildlife Refuge System and the Na- by implication or otherwise, be construed to tional Forest System, also included wilder- lessen the present statutory authority of the ness designations for some areas which had Secretary of the Interior with respect to the maintenance of roadless areas within units of never been part of any wilderness study. Fi- 2l nally, the Endangered American Wilderness the National Park System.” Act12 of 1978 designated 17 wilderness areas, These studies required by the Wilderness only 1 of which had ever been subject to wil- Act were completed by 1974. The Forest derness study. Service is continuing a wilderness study effort, the Roadless Area Review and Evalua- Wilderness Study tion (RARE II), which grew out of difficulties The second approach, often called “wilder- encountered in meeting the mandate of sec- ness study, ” was first expressed in sections tion 3(b).22 However, RARE II covers all road- 3(b) and 3(c) of the Wilderness Act. Those less areas under the jurisdiction of the Forest provisions directed Federal land managers to Service, not just areas classified as primitive, survey certain lands within their jurisdiction and is not subject to any timetable, nor is over a 10-year period and make recommenda- there any requirement that the President tions to the President on the suitability of make reports on the recommendations of the such lands for designation as wilderness. Forest Service. Ch. 4 Federal Land Management Systems “ 91

Section 603 of the Federal Land Policy and system are the National Park Service, the Management Act established a new wilder- Fish and Wildlife Service, and the BLM. The ness study program for public lands admin- Secretary of Agriculture administers wilder- istered by the Bureau of Land Management ness areas of the National Forest System (BLM), which, in many ways, is similar to the through the Forest Service. Wilderness areas section 3(b) and 3(c) study .23 The entire pro- are subject to all general laws governing the gram must be completed by October 21, 1991, department and agency administering them, but the Secretary of the Interior must make but management must be consistent with the recommendations to the President by July 1, provisions of the Wilderness Act. Each man- 1980, on all BLM “primitive” or “natural” aging agency is responsible for preserving the areas .24 wilderness character of areas under its jurisdiction. The area must be managed for the Section 603 contains two provisions not purposes for which it was established (i.e., found in the Wilderness Act. Mineral surveys park, forest, refuge, wild and scenic rivers) in must be conducted by the Geological Survey a manner that will preserve its wilderness and the Bureau of Mines before any recom- 29 25 character. Wilderness areas are to be mendation is made to the President. In addi- devoted to the public purposes of recreation, an interim management policy is estab- tional, scenic, scientific, educational, conser- lished. vation, and historical use.30 During the period of review of such areas and until Congress has determined otherwise, the Secretary shall continue to manage ACTIVITIES IN WILDERNESS AREAS such lands according to his authority under this Act and other applicable laws in a man- The provisions of the Wilderness Act and ner so as not to impair the suitability of such the regulations thereunder, which control ac- areas for preservation as wilderness sub- tivities and uses in wilderness areas, are project, however, to the continuation of existing tective and stringent. The general policy for mining and grazing uses and mineral leasing the use of wilderness areas as provided in the in the manner and degree in which the same Act is: was being conducted on the date of approval of this Act. 26 Except as specifically provided for in this Act, and subject to existing private rights, Congressional Nominations there shall be no commercial enterprise and no permanent road within any wilderness Finally, Congress has often acted to re- area designated by this Act and, except as quire wilderness study of specific areas of 27 necessary to meet minimum requirements for land. Generally, when this is done the law the administration of the area for the pur- specifying the study area also requires that pose of this Act (including measures re- the study be conducted pursuant to section quired in emergencies involving the health 3(d) of the Wilderness Act and sets a time and safety of persons within the area), there limit on the period for study. Most specific shall be no temporary road, no use of motor study designations also contain provisions vehicles, motorized equipment or motor- concerning interim management practices boats, no landing of aircraft, no other form of mechanical transport, and no structure or in- during the study period. 31 stallation within any such area . Wilderness areas are, unless otherwise provided by Congress, managed by the agen- This general rule is subject to certain excep- cy which had jurisdiction over the area im- tions, specifically provided in the Act. The mediately prior to its inclusion in the National use of aircraft or motorboats, where these Wilderness Preservation System.28 In the De- uses have already become established, may partment of the Interior, the agencies that be permitted to continue subject to such re- may administer components of the wilderness strictions as the Secretary of Agriculture 92. Analysis of Laws Governing Access Across Federal Lands

.- . 4 “ Photo Credit: George Walierstein High camp in the Wrangell Mountains

deems desirable.32 The Secretary may also national forest wilderness areas subject to provide for the use of such measures for regulation by the Secretary of Agriculture.36 “control of fire, insects, and diseases” as he After 1983 the minerals in wilderness areas deems desirable.33 Activities for the purpose are withdrawn from appropriation or disposi- of gathering information about mineral or tion under the mining and mineral leasing other resources may be conducted in national laws. forest wilderness areas in a reamer compati- The most important exception to the gen- ble with preservation of the wilderness envi- 34 eral prohibitions on access in the Wilderness ronment. National Forest and BLM wilder- Act is found in section 4(d)(4)37 which pro- ness areas are to be “surveyed on a planned, vides: recurring basis consistent with the concept of wilderness preservation” by the Geological Within wilderness areas in the national Survey and the Bureau of Mines under a pro- forests designated by this Act, (1) the Presi- gram developed by the Secretary of the In- dent may, within a specific area and in ac- terior in consultation with the Secretary of cordance with such regulations as he may deem desirable, authorize prospecting for Agriculture. Reports on the mineral values, if water resources, the establishment and any, of such wilderness areas are to be made maintenance of reservoirs, water conserva- available to the public and submitted to the tion works, power projects, transmission 35 President and Congress. Mining and mineral lines, and other facilities needed in the pub- leasing activities are permitted to continue on lic interest, including the road construction Ch. 4 Federal Land Management Systems .93

and maintenance essential to development poses of wilderness recreation and manage- and use thereof, upon his determination that ment is clearly intended.44 New access routes such use or uses in the specific area will bet- or intensive use of existing routes for any pur- ter serve the interests of the United States 38 pose could be detrimental and destructive of and the people thereof than will its denial; wilderness character. Accordingly, access in This provision also applies to wilderness wilderness areas may be strictly limited areas managed by the BLM.39 This limited ex- when necessary. ception provides an institutional mechanism Access uses of wilderness areas recog- for access through wilderness areas in un- nized in the Wilderness Act are limited to the usual and critical situations where such ac- following: cess is demonstrably in the national interest. a. Preexisting private rights (It is as- Livestock grazing that is established on na- sumed that “private” includes State tional forest and public lands wilderness and local governments); areas prior to wilderness designation may be continued subject to reasonable regulation by b. Wilderness recreation and manage- the appropriate Secretary.40 Commercial ac- ment access routes and facilities; tivities that are proper for realizing the recre- c. Emergency purposes; ational and other wilderness purposes of the areas are permitted.41 d. Established use of motorboats and aircraft where use. predates wilderness The Act provides for adequate access to designation— subject to regulation by private or State owned land that is “com- the management agency; pletely surrounded” by a national forest or public lands wilderness area, either by the e. Presidential authorization of the use of grant of such rights as are necessary or by an national forest and public lands wilder- exchange of the surrounded land for other ness areas for projects and facilities in federally owned land in the State of approx- the national interest; 42 imately equal value. f. Adequate access rights for State and Ingress and egress to valid mining claims private lands completely surrounded and other valid occupancies “wholly within” by a national forest or public lands wil- a national forest or public lands wilderness derness area; area is permitted subject to regulation con- g. Access to valid mining claims and other sistent with the preservation of wilderness. valid occupancies by means that are Access to these surrounded areas is limited currently or customarily enjoyed in to means that have been or are being custom- similarly situated areas; and arily enjoyed with respect to other such areas similarly situated .43 h. Special provisions applicable to specific wilderness areas by congressional The concept of wilderness management de- action. scribed in the Act is intended to preclude the use of wilderness areas for all inconsistent Additional authorization for access uses of purposes. No permanent or temporary road wilderness areas may be found in “the other or other manmade structures or facilities are purposes for which an area was estab- to be allowed except as specifically provided lished;” 45 that is, use as a national park, a for in the Act. A wilderness area is to be wildlife refuge, a forest, public lands, wild preserved in its primitive, unaltered state. and scenic rivers, or associated uses of those Most means of access, even footpaths, are to land classification systems. However, any some extent inconsistent with preservation of such use must be consonant with wilderness wilderness as an area “untrammeled by character. 46 Even if access use of wilderness man;” however, necessary access for pur- areas within each of the land management 94 ● Analysis Of Laws Governing Access Across Federal Lands systems is found to be compatible with provi- similarly situated areas.50 The Mining in the sions of the Wilderness Act, it must also com- Parks Act of 1976 allows the Secretary of the ply with the laws and regulations of the land Interior to regulate mining activities within management agency and land classification the parks, including wilderness areas.51 Any system. other access through a national park wilderness area, as through a national park, would PARK WILDERNESS require congressional authorization. The limited Presidential exception of the Wilderness Act does not apply to national parks. The National Park Service recognizes the established use of aircraft and motorboats that predates the creation of wilderness areas, and includes provisions relating to WILDLIFE REFUGE WILDERNESS such access in its recommended wilderness legislation. However, all preestablished mo- The National Wildlife Refuge System wil- torized modes of access to wilderness areas derness areas are administered by the Fish are not necessarily recognized.47 Motorized and Wildlife Service. Refuge system wilder- vehicles are banned in designated wilderness ness regulations follow provisions of the Wil- areas in the park system, except for minimum derness Act and do not allow temporary or access and management purposes and emer- permanent roads, manmade structures, or gencies. As discussed in the section on the the use of motorized transport within wilder- National Park System, rights-of-way and ac- ness areas.52 Subject to such restrictions as cess permits for park areas are based on the the Director may impose, the established use general authority to manage and regulate the of aircraft and motorboats may be continued park system, the 1901 Act, the 1911 Act, and in refuge wilderness areas.53 Access to pri- the ditches and canals acts.48 These Acts re- vate property and valid occupancies within quire that the proposed use be compatible refuge wilderness areas is recognized. Ade- with the public interest or not interfere with quate access is defined as the combination of Government use of the reservation. Plainly, modes and routes of travel that will best most access uses would be contrary to the ex- preserve the wilderness character of the plicit provisions of the Wilderness Act and landscape. The designated mode of travel would probably be denied on that basis. Any must be reasonable and consistent with grant of access through a wilderness area accepted, conventional, and contemporary that is not consistent with wilderness preser- modes of travel in that vicinity. Access use vation and is not based on the Wilderness Act must be consistent with the reasonable pur- exceptions might be found to be unlawful on poses for which the land is held. The Director judicial review. will issue access permits designating the means and route of travel that will preserve Access is assured to private lands com- the area’s wilderness character.54 pletely surrounded by national park wilderness.49 Such access rights are, however, sub- Wildlife refuge wilderness areas are also ject to regulation by the Park Service. Where subject to general refuge regulations as well access proves to be incompatible with wilder- as special regulations and orders issued for ness preservation or where the private owner particular refuges. These regulations restrict so desires, the surrounded lands may be ex- the operation of aircraft, motorized vehicles, changed under laws applicable to the wilder- and boats to designated areas and routes ness system and the park system. Mining in- within a refuge, and provide that such access holdings and other valid occupancies wholly may be restricted and limited as necessary.55 within a park wilderness area are also Right-of-way authorization for wildlife refuge assured access as consistent with the Wilder- areas 56 requires that the access use be com- ness Act and by means customarily enjoyed in patible with the purpose for which the indi- Ch. 4 Federal Land Management Systems ● 95

64 vidual refuge was established. Other right- wilderness areas provide that “except as of-way provisions in the 1901 Act, the 1911 provided in the Wilderness Act, or subse- Act, and the ditches and canals acts, which quent legislation establishing a particular are applicable to wildlife refuges, also must wilderness unit . . . there shall be in the Na- meet the compatibility standard. However, tional Forest Wilderness . . . no temporary or section 668dd(d) and the regulations on ref- permanent roads; no aircraft; no dropping of uge rights-of-way appear to be controlling.57 materials, supplies, or persons from aircraft; Since a wilderness area is established to no structures or installations; and no cutting 65 preserve wilderness characteristics, access of trees for nonwilderness purposes." The uses that are deleterious to these values are Chief of the Forest Service may permit the not consistent, and, therefore, do not meet the landing of aircraft and use of motorboats standards required for issuance.58 There is no within any wilderness where these uses were 66 provision in the Wilderness Act for Presiden- established prior to wilderness designation. tial national interest authorizations of access Maintenance of landing strips, heliports, and use of refuge areas. Any access use of refuge helispots, which preexist wilderness designa- wilderness would, if incompatible with wil- tion, may also be allowed.67 derness status, require congressional approval.59 Adequate access to surrounded State and private lands is defined in the regulations as the combination of routes and modes of travel BLM WILDERNESS that will, as determined by the Forest Serv- ice, cause the least lasting impact on the Wilderness areas on public lands admin- primitive character of the land, and which, at istered by the BLM are subject to the provi- the same time, will serve the reasonable pur- sions of the Wilderness Act applicable to na- poses for which the surrounded land is held tional forest wilderness areas.60 The Federal or used. Access by routes or modes of travel Land Policy and Management Act of 197661-- not available to the general public must be the BLM Organic Act— specifically excludes authorized in writing by the Forest Service. wilderness areas from the right-of-way au- The authorization prescribes the means and thority granted to the Secretary of the In- the routes of travel to and from the lands and terior for public lands.62 Any access use must sets forth the conditions necessary to pre- therefore be consistent with the purposes of serve the wilderness characteristics while wilderness preservation and recreation or be allowing adequate access.68 included in one or more of the specific exceptions to the Wilderness Act. These exceptions Persons with mining claims or other valid recognize existing private rights, preestab- occupancies wholly within forest wilderness lished use of aircraft and motorboats within a areas are permitted access by means consist- given area, and access use in emergency situ- ent with the preservation of wilderness that ations. The President may authorize use of are or have been customarily used for other such occupancies surrounded by national for- BLM wilderness areas for projects in the na- 69 tional interest.63 Any other access use re- est Wilderness. When appropriate, the For- quires congressional authorization. est Service will issue an access permit specifying the mode and route and any protective conditions. 70 FOREST WILDERNESS The Wilderness Act provides that the President may allow the use of a national for- National forest wilderness areas are ad- est wilderness area for projects in the na- ministered by the Forest Service of the De- tional interest.” Wilderness areas are specif- partment of Agriculture. Regulations issued ically excluded from the right-of-way author- by the Forest Service for administration of ization granted to the Secretary of Agricul- 96 ● Analysis of Laws Governing Access Across Federal Lands

ture in Title V of the Federal Land Policy and Forest Service, in its RARE II program, is Management Act of 1976 which is the com- evaluating over 66 million acres of land to prehensive right-of-way authority for na- determine its suitability for designation as tional forests.72 Easements for roads under wilderness. 79 It is estimated that the BLM the provisions for the development of the Na- wilderness review mandated by section 603 tional Forest Transportation System73 would of the Federal Land Policy and Management appear to be precluded by the prohibition of Act of 1976 will evaluate over 120 million the Wilderness Act that there be no road in roadless acres and 13,000 roadless islands.80 any wilderness area.74 Congressional author- This land will be studied for wilderness ization is needed for any proposed access use potential, but none of it has as yet been for- that does not come under one or more excep- mally designated as a wilderness study area. tions to the Wilderness Act. During the period of initial evaluation and up to final disposition of the wilderness rec- WILD AND SCENIC ommendation by the Congress, these lands RIVERS WILDERNESS will be in some form of restrictive management. While it is clear that multiple use man- The National Wild and Scenic Rivers Sys- agement will not be practiced, it is difficult to tem75 is a land classification system, which, ascertain exactly what standards will be like the National Wilderness Preservation used in managing wilderness study areas. System, does not have a separate manage- There is some statutory guidance on the ment agency. Instead, wild and scenic rivers management of BLM lands under wilderness are managed by the Forest Service, the Na- study. Section 603(c) of the BLM Organic Act tional Park Service, the Fish and Wildlife provides: Service, or the BLM. Wild and scenic rivers The Secretary shall continue to manage within wilderness areas are managed ac- such lands according to his authority under cording to provisions applicable to both sys- this Act and other applicable law in a man- tems, and, in the event of conflict, the Wilder- ner so as not to impair the suitability of such ness Act provisions prevail.76 Access through areas for preservation as wilderness, sub- or over wild and scenic rivers areas that are ject, however, to the continuation of existing also components of the wilderness system is mining and grazing uses and mineral leasing granted under the authority of the managing in the manner and degree in which the same agency as interpreted in light of both the Wild was being conducted on the date of approval and Scenic Rivers Act and the Wilderness of this Act. Provided, that in managing the Act.77 Access over river areas managed by public lands the Secretary shall by regulation or otherwise take any action required to the Department of the Interior may be prevent unnecessary or undue degradation granted according to the rules applicable to of the lands and their resources or to afford the National Park System. Access permits for environmental protection.81 components administered by the Secretary of Agriculture are issued under laws applicable Preliminary indications are that BLM intends to the National Forest System.78 to apply a strict interpretation of this provision to all proposals for new activity.82 MANAGEMENT OF WILDERNESS There is less statutory guidance with re- STUDY AREAS spect to Forest Service lands. In the Eastern Wilderness Act, Congress designated 17 wilderness study areas in national forests. The The entire National Wilderness Preserva- Act stated: tion System now comprises approximately 16 million acres, which is a small fraction of all Nothing in this Act shall be construed as roadless areas in the United States. The limiting the authority of the Secretary of Ch. 4 Federal Land Management Systems ● 97

Agriculture to carry out management pro- mended for wilderness status, and to return grams development, and activities in ac- them to multiple use management. The me- cordance with the Multiple-Use Sustained- chanics of this process have not been com- Yield Act of 1960 within areas not desig- pletely worked out. BLM officials have in- nated for review in accordance with the pro- 83 dicated that they do not presently intend to visions of this Act. prepare environmental impact statements on the decision not to recommend an area for Presumably, this means that almost all land further study.86 Forest Service policy appears in the RARE II inventory of potential wilder- to be similar.87 The prospect of litigation over ness areas is subject to management under particular areas seems inevitable.88 the principles of the Multiple-Use Sustained- Yield Act (although one of the uses specified These decisions concerning positive eval- in that Act is the preservation of wilder- uation and negative evaluation of potential ness).84 study areas are enmeshed in the new land management planning procedures that both The Forest Service has indicated that it agencies are now being required to take for would not approve any use inconsistent with the first time. Plans must be filed for every 89 wilderness on an existing roadless area with- management unit in both systems. The For- out filing an environmental impact statement, est Service allows land to drop out of the either with the permit or license approving RARE 11 inventory if a management plan is 90 the use or as a required part of a land man- filed that provides for nonwilderness use. agement plan.85 This meets the requirement of the out-of- court settlement that led to RARE II; such The question of authorizing nonwilderness plans are always accompanied by environ- uses is closely related to the problem of re- mental impact statements. BLM—which was moving lands from potential wilderness required to prepare such plans in more re- 91 status without a negative determination by cent legislation —has not yet indicated if it Congress. Both the Forest Service and the intends to use the plans as a mechanism to BLM have indicated a desire quickly to iden- remove areas from potential wilderness pro- tify roadless areas that should not be recom- tections.

FOOTNOTE REFERENCES FOR NATIONAL WILDERNESS PRESERVATION SYSTEM

’16 U.S,C. 1131-1136, compassing approximately 16 million acres. Ninety-two 216 U.S.C. 1131(a). wilderness areas had never been the subject of wilder- 31d. ness reviews, H, Rept. 95-1045 pt. I., pp. 134-35 (1978). 416 U.S.C. 1131[c). 916 U,S. C. 1132(a). 51d. IOpublic Law 93-622, 88 Stat, 2096, Jan. 3, 1975. ‘Id. ‘lPublic Law 94-557,90 Stat. 2633, Oct. 19, 1976. 7The Joint Federal-State Land Use Planning Commis- ‘zPublic Law 95-327,92 Stat. 40, Feb. 14, 1978. sion for Alaska estimates that about zoo million acres ’316 U.S.C. l132(b). A national forest “primitive of Federal lands are of “primitive” character and there area” is subject to protective management similar to are about 75,OOO acres in existing wildlife refuges that for wilderness areas. See 36 CFR 293.17. classified as wilderness. See the D-2 book inventory of 1416 U.S,C. 1132(c). A roadless area is defined by In- Alaska land values in Federal-State Land Use Planning terior Department regulations as “a reasonably com- Commission for Alaska, “The D-2 Book” Lands of Na- pact area of undeveloped Federal land which possesses tional Interest in Alaska (May 1977) at p. 8, Alaska the general characteristics of a wilderness and within wilderness areas are listed in table 4. which there is no improved road that is suitable for 816 U.S. C. 1132(e). As of February 1978, there were public travel by means of four-wheeled, motorized vehi- 177 congressionally designated wilderness areas en- cles intended primarily for highway use. ” 43 CFR 98 ● Analysis of Laws Governing Access Across Federal Lands

19.2(e). Roadless island means a roadless area that is 4916 U.s.c. 1 laq(a). surrounded by permanent waters or that is markedly 5016 U,s.c. l13@], distinguished from surrounding lands by topographical 51 lfj u.S. C. 1901 et seq. or ecological features such as precipices, canyons, SZ50 CFR 35.5. thickets, or swamps. 43 CFR 19.2(f). 5350 CFR 35.5(b). ’516 U.S.C. l132(b) and 16 U.S.C. 1132(c). 5450 CFR 35.13. “16 U,S.C. l132(d)(l)(A). s350 CFR pts. 25-29. “16 U,S.C. l132(d)(l)(B). 5616 U.S.C. 668dd(d). ’816 U.S.C. 1132(d)(l)(C). 575(3 CFR 19.21-1(;); ’916 U,S,C. l132(b) and 16 U.S.C. 1132(c). ~asee DeDar@ent of the Interior, Fish and Wildlife 2036 CFR 293.17. Ser~ce, Final Environmental Statement on the Oper- z116 U.S,C, 1132(c). ation of the National Wildlife Refuge System (1976). Zzsee Sjerra (lub v. Butz, 349 F. SUpp. 934 (N.D. Cal. s943 U.S, C, 1782(c). 1972), Wyoming Outdoor Coordinating Council v, Butz, ’43 U.S.C. 1701 et seq. 484 F. 2d 1244 (Ioth Cir. 1973), and Senate Comrm on ’143 U.S,C. 1761(a). Energy and Natural Resources, Roadless Area Review 6216 u.S.C. l133(a] and(d). and Evaluation (RARE II), Serial No. 95-92, (Committee 6316 U.S,C, l133(d)(4). Print 1978), p. 5. “36 CFR pt. 293. 2343 U,S, C. 1782(a). ‘s36 CFR 2936. 241d, “36 CFR 293.6(d). zsIdo “Id. 2643 U.S.C. 1782(c). ’836 CFR 293.12. Zrsee, for example, Act of October 19, 1976, public ‘g36 CFR 293.13. Law 94-557, section 3,90 Stat. 2635; Act of October 20, ‘“Id. 1976, Public Law 94-567, section 5, 90 Stat. 2665. See 7’16 U.S.C. 1133(d)(4). note following 16 U. S.C.A. 1132 (1977 supp.), p. 32. 7243 U.S. C, 1761(a). 2’16 U.S.C. l131(b). 7316 U.S,C. 532-538, 16 U.S.C. 1608. 2916 U.S.C, 1133(b). ’416 U,S.C. 1133(C). 3oId, 7316 u.S. C. 1271 et seq. 3116 U.S.C. 1133(c). 7’16 U.S,C. 1281(b). 3z16 U,S. C. 1133(d)(l). The Secretary of the Interior 7716 U.S.C. 1284(g) and 16 U.S.C. 1281(b). establishes the conditions for the use of planes and 7’316 U.S,C. 1284(g). motorboats in wilderness areas under his jurisdiction. 7’42 F.R. 59688, Nov. 18, 1977. See, infra, note 47. ‘Hearings on the Federal Land Policy and Manage- 331d. ment Act and Grazing Fee Moratorium of 1977 Before 3416 U.S.C. l133(d)(2). the Subcomm. on Indian Affairs and Public Lands of the ‘sId. House Comm. on Interior and Insular Affairs, 95th 3616 U.S.C, l133(d)(3). Cong., lst. sess., Serial No. 95-25 (1978) at p. 103. 3716 U.S.C. 1133(d)(4). (“Hearings”). ~qd. 8143 U.S.C, 1782(c). 3043 U,S,C. 1782(c). e~see Jan, 9, 1978, Memorandum of the Deputy SO- 4016 U.S.C. 1133(d)(4). licitor, “Application of Mining and Grazing Laws to 4116 U.S, C. 1133(d)(6). Areas under Review for Inclusion into Wilderness Sys- 4216 U.S,C. 1134(a). Adequate access is defined in tem: Section 603 Federal Land Policy Management Act Fish and Wildlife Regulations to mean the combination of 1976” reprinted in Hearings, supra, note 80, pp. of modes and routes of travel that will best preserve the 131-44. BLM has indicated that areas which meet the wilderness character of the landscape. 50 CFR 35,13. minimum criteria for wilderness will be subject to strin- 4316 U.S.C. 1134(b). gent interim protection. A recent letter to a permit ap- 44See 16 U.S.C. 1133(c), l133(d)(l)(6). plicant reflects this policy: “Those activities which are 4516 U.S.C. l133(b). of a permanent nature or not easily rehabilitated . . . 461da camot be allowed until a formal wilderness review of 47Department of the Interior, National Park Service, the areas has been completed. ” Letter from Depart- Management Policies, 1975, p. VI-6, cited in Krutilla ment of the Interior, Bureau of Land Management, and Rice, “Management Systems, Land Classifications, Fairbanks District Office to W. G. M., Inc., dated Apr. and Use Restrictions” reprinted in House Comm. on In- 14, 1978 provided by Dr. E, Beistline, Dean of the Col- terior and Insular Affairs, Subcomm. on General Over- lege of Mineral Industries, University of Alaska, a mem- sight and Alaska Lands. Background ln~ormation for ber of the assessment advisory panel. Alaska Lands Designations, (Committee Print No. 4) a’fiblic Law 93-622, section 4(d), 88 Stat. 2098. 95th Cong., 1st sess., p. 174 (1977). 8416 U.S.C. 1604(e)(l), added by the National Forest 48See section on National parks. Management Act of 1976, Public Law 94-588, 90 Stat, Ch. 4 Federal Land Management Systems ● 99

2949, Oct. 22, 1976, implicitly amends the Multiple-Use Feb. 27, 1978, p. 13. “Since legislation will be required Sustained-Yield Act of 1960 to include the preservation for an area to be included in the National Wilderness of wilderness: Preservation System, the report for each study area be- “In developing, maintaining, and revising plans ing recommended as suitable will be accompanied by for units of the National Forest System pursuant to an environmental assessment record or environmental this section, the Secretary shall assure that such impact statement. An environmental assessment rec- plans: (1) provide for multiple use and sustained ord or environmental impact statement will not be re- yield of the products and services obtained there- quired for areas recommended as nonsuitable. ” from in accordance with the Multiple-Use Sus- BTForest Service, RARE II Notebook, “RARE II Eval- tained-Yield Act of 1960 and, in particular, in- uation,” figure 1. However, some areas will drop out of clude coordination of outdoor recreation, range, the RARE II inventory after filing of a land management timber, watershed, wildlife and fish, and wilder- plan that contains an environmental impact statement. ness. ” ‘aThe cases listed, supra, note 22 seem to indicate Bssee Forest Service, RARE 11 Notebook, P“ III-A! that an agency decision to allow development or other Forest Service, Forest Service Manual, Chapter 8260, activity in a previously pristine area would require an Interim Directive No. 5 (July 21, 1977), p. 3, section environmental impact statement. (8260)(b)(l)(f). ’916 U.S.C. 1604. 8@Departrnent of the Interior, Bureau of Land ‘Supra, note 85. Management, Draft Wilderness Review Procedures, 9’43 U.s. c. 1712. 5 Federal Laws Affecting Alaska Lands and Resources / Chapter 5.-- FEDERAL LAWS AFFECTING ALASKA LANDS AND RESOURCES

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125 129 129 130 132 134 . FIGURE Page 5. Approximate Boundaries of Native Regional Corpora- tions Established Under ANCSA and Estimated Combined Regional and Village Corporation Entitlements ...... 118

.. 5 Federal Laws Affecting Alaska Lands and Resources

ALASKA STATEHOOD ACT On January 3, 1959, Alaska became the This section examines the major provisions of 49th and largest State of the Union,] some 90 the Alaska Statehood Act, its legislative in- years after the District of Alaska was pur- tent, and the history of the implementation of chased for $7 million from Russia2 and some its promises. 47 years after it became an organized territory, 3 The Alaska Statehood Act4 was ap- The Alaska Statehood Act set forth the procedural requirements necessary for admis- proved on July 7, 1958 following more than a 8 sion. Upon satisfaction of these require- decade of active congressional consideration. ments, Alaska was admitted into the Union on This approval came only after the major ob- “an equal footing with all other States in all jections to statehood had been overcome— respects whatever. ” The new State included the lack of contiguity with the rest of the all of the lands and territorial waters of the States, a small population, and economic de- Territory of Alaska.9 Alaska was admitted to pendency on Federal Government expendi- the Union on January 3, 1959, when President tures for construction projects and military 5 Eisenhower issued a Presidential proclama- bases. Congressional concern over the last of tion that all the procedural requirements for these objections resulted in provisions en- statehood had been satisfied .10 dowing the State with unprecedented grants of public lands and a generous share of Federal revenues from mineral leases and the Pribilof Island fur trade.6 The House report NATIVE CLAIMS on the Statehood Act indicates that the intent of these provisions was: As a compact with the United States, sec- To enable Alaska to achieve full equality tion 4 of the Statehood Act requires that the with existing States, not only in the technical State and the people of Alaska disclaim any juridical sense, but in practical economic rights to any land, the right or title to which is terms as well. It does this by making the new held by the United States, except for those State master in fact of most of the natural lands granted or confirmed by the Statehood 11 resources within its boundaries, and making Act. Alaska also disclaims any rights to any provisions for appropriate Federal assist- lands or other property (including fishing ance during the transition period. ’ rights) that are held by Alaska Natives or by Note: Footnotes for this section appear on pp. 112-114. the United States in trust for them.12 The

103 104 ● Analysis of Laws Governing Access Across Federal Lands

United States retains absolute jurisdiction Conflicts over Native land claims eventually over these Native lands. These Native lands led to a virtual freeze on State selection dur- are not subject to State taxation except as ing the sixties and threatened to impede con- provided by Congress.13 Lands that are construction of the Trans-Alaska Oil Pipeline.17 veyed to an Alaska Native without restraint These claims were extinguished by direct on alienation under the Alaska Native Allot- congressional action in 1971 by the Alaska ment Act are not subject to this absolute Fed- Native Claims Settlement Act18 (ANCSA). eral jurisdiction and may be treated substan- Alaska Natives received, in exchange, the tially the same as other private lands.14 right to select 44 million acres of public land and a Native fund of $962.5 million to be paid The settlement of Native claims was ex- over a period of years.19 Native selection pressly deferred. The Statehood Act specifi- rights were given priority over State selection cally provides that it does not affect or ad- rights. However, State selections that were dress the validity of any Native claims. “Any tentatively patented, tentatively approved, or such claim shall be governed by the laws of identified by the State prior to January 17, the United States applicable thereto.”15 The 1969 are recognized and protected by House report states that this provision relates ANCSA.20 to the issue of Native claims: LAND AND REVENUE GRANTS Congress does not concern itself with the legal merits of indigenous rights but leaves the matter in status quo for either further Section 6 of the Alaska Statehood Act legislative action or judicial determination.16 grants to the State of Alaska the right to Ch. 5 Federal Laws Affecting Alaska Lands and Resources . 105

select a total of 103,550,000 acres of Federal grants of section 6(a)—subject to the ap- lands .2’ It also confirms previous grants to the proval of the Secretary of Agriculture. territory of Alaska and transfers certain Fed- Alaska was also given the right to select eral lands and buildings to the State. Exten- 102,550,000 acres of public lands that were sion of the Submerged Lands Act of 1953 “vacant, unappropriated, and unreserved at gave Alaska title to from 35 million to 40 31 million acres of submerged lands under the the time of their selection." These selections Territorial seas and inland navigable wa- must also be completed within 25 years of ad- 22 mission. All lands available for selection are ters. The Statehood Act also conferred on Alaska the right to receive a generous portion subject to valid existing rights, including of Federal revenues from mineral leasing on Native claims based on aboriginal use or oc- 23 cupancy, mining claims, homesteads, or equi- Federal lands as well as a share of the reve- 32 nues of the Pribilof Island fur trade.24 All land table claims. selections are to be made within 25 years of The Act did not restrict the power of the 25 admission, that is, by 1984. The Statehood U.S. Government to dispose of Federal lands Act does not affect: in order to accommodate the State selection rights. The United States is free to make addi- Any valid existing claim, location, or entry tional reservations or withdrawals of Federal under the laws of the United States, whether lands for various purposes, or to sell or dis- for homestead, mineral, right-of-way, or other purpose whatsoever, or shall affect the pose of Federal lands under the public land rights of any such owner, claimant, locator, laws, the mineral leasing laws, and other or entryman to the full use and enjoyment of authorities. Thus, until the State actually the land so occupied.26 selects lands or communicates its intent to select particular tracts, the lands are open to Any lands subject to such valid existing rights other disposition. are not available for State selection. The availability of public lands for State Section 6(a) granted the right to select up to selection is further limited by the restrictions “400,000 acres from lands within national on State selections in an area in northern and forests in Alaska which are vacant and unap- western Alaska where the President is au- 27 propriated at the time of their selection.” thorized to make national defense withdraw- Alaska was also given the right to select an als.33 No State selections may be made in this additional 400,000 acres from “public lands region without the approval of the President which are vacant, unappropriated, and unre- or his designate. In practice, no State selec- 28 served at the time of their selection.” All the tions north or west of this national defense lands selected under these grants must be line known as the Porcupine-Yukon-Kusko- “adjacent to established communities or kwim line or PYK line have been rejected.34 suitable for prospective community center and recreation areas.”29 All selections must To date, the State of Alaska has selected be approved by the Secretary of the Interior, approximately 72 million acres of public and national forest lands must be approved lands. The Federal-State Land Use Planning by the Secretary of Agriculture.30 Commission has observed that, based on the emerging pattern, the State selection policy The existing national forests in Alaska are has three principal objectives: the Tongass National Forest and the Chugach ● provision of lands to meet existing and National Forest. The Alaska Statehood Act future settlement needs; does not restrict State selection rights to those national forests existing on the date of ● control of lands along major highway admission. Any national forest lands in corridors; and Alaska could be selected by the State under ● selection of lands with high potential for the community expansion and recreation natural resource development.35 106 • . Analysis of Laws Governing Access Across Federal Lands

MINERAL RIGHTS respects to the Federal mining and mineral leasing laws.39 Locators on State lands re- The Alaska Statehood Act provides that all ceive the right to develop certain minerals lands granted or confirmed under the Act in- 36 found there. All statehood lands are conveyed clude the full mineral rights. The Act fur- without the mineral rights subject to the right ther stipulates that these land grants are of the State to enter and extract the minerals. made on the condition that, in all subsequent Alaska has closed certain areas to mineral conveyances of selected lands, the State must location and leasing where mineral extrac- reserve all mineral rights and the right to 37 tion might conflict with surface uses of the enter and to remove the minerals. The State lands. 40 may never sell nor convey the mineral rights. The Act authorizes the Federal Government As a further “incentive” to the develop- to initiate forfeiture proceedings against ment of Alaska’s land and resources, section State lands conveyed without such reserva- 38 6(g) permits the State to execute conditional tion. leases on mineral lands after a selection has The State of Alaska has a system of locat- received the tentative approval of the Secre- able and leasable minerals similar in many tary of the Interior.41

Photo Cred/f: OTA Staff

The Kennicott Copper Mine near McCarthy, Wrangell-St. Eliasregion, produced high-grade copper concentrate from 1911 to 1938 Ch. 5 Federal Laws Affecting Alaska Lands and Resources ● 107

Under section 6(h), Alaska received the such streams were not meandered in connec- right to select public lands that were subject tion with the public survey of such lands un- to outstanding leases under the Mineral Leas- der the laws of the United States and if the ing Act of February 25, 1920, or the Alaska title to beds of such streams was lawfully 42 patented or conveyed by the United States or Coal Leasing Act of October 20, 1914. This 48 selection right must be exercised within 10 any State to any person. years of admission. If the State selects all The definition of “lands beneath navigable lands under such lease, permit, or contract, it waters” in Alaska has been the subject of then receives all the interests of the United numerous disputes between the State, the States in the leased areas including the right Federal Government, and, in some instances, 43 to all leasing proceeds. If, however, the Alaska Natives. Title to submerged lands in- State selects only some of such mineral lands, cludes the natural resources.”49 The Sub- the mineral rights are reserved by the United merged Lands Act provides that: “The term States and do not pass to the State until ter- “natural resources” includes, without limit- 44 mination of the lease, permit, or contract. ing the generality thereof, oil, gas, and all The continued validity of any outstanding other minerals, and fish, shrimp, oysters, lease, permit, or contract on the lands se- clams, crabs, lobsters, sponges, kelp, and lected by the State is protected. other marine animal and plant life, but does not include water power, or the use of water for the production of power.”50 SUBMERGED LANDS At stake in the dispute over the definition Section 6(m) of the Statehood Act extends of lands beneath navigable waters is the title and ownership of the submerged lands and the Submerged Lands Act of 1953 to the State the potential wealth to be derived from the of Alaska.45 Under this provision, title to “lands beneath the navigable waters” within oil, gas, and other mineral resources. the boundaries of Alaska and their natural resources vested automatically in the State OTHER LAND GRANTS on admission to the Union.46 The Submerged Lands Act provides that The Alaska Statehood Act also provided “lands beneath navigable waters” means:47 for the transfer of certain federally owned lands and facilities to the State. These in- ● All lands within the boundaries of each cluded the Federal buildings’ and the Federal of the respective States which are covered 52 by non-tidal waters that were navigable jail in Juneau, certain Federal properties used for conservation and protection of fish under the laws of the United States at the 53 and wildlife, and all other lands or buildings time such State became a member of the 54 Union . . . up to the ordinary high water to which the Territory of Alaska held title. mark . . .; The Act confirmed previous land grants to ● All lands permanently or periodically the territory of Alaska of mental health, covered by tidal waters up to but not university, and school lands.55 These land above the line of mean high tide and sea- grants include an estimated 1.1 million acres ward to a line three geographical miles of public lands in the State. distant from the coast line . . . However, this definition is limited by a further provision: STATE SELECTION PROCESS The term “lands beneath navigable waters” does not include the beds of streams in All State land selections are to be made in lands now or heretofore constituting a part accordance with regulations issued by the of the public lands of the United States, if Secretary of the Interior specifying the pro- ——

108 ● Analysis of Laws Governing Access Across Federal Lands cedures for identification and approval of received two sections of each surveyed town- selections. 56 Except for the community expan- ship. 65 All school land grants preciously made sion and recreation grants made under sec- to the territory (about 106,000 acres) were tion 6 of the Act, all selections are to be made confirmed. 66 In lieu of these land grants, sec- in reasonably compact tracts of 5,760 acres. tion 6(f) of the Act provides that Alaska is en- This size requirement may be waived where a titled to receive 5 percent of the proceeds selected tract is isolated from other lands from the sale of public lands in the State.67 open to selection.57 Tracts are not considered These revenues are to be used for the support compact when they exclude other lands open of public education. None of the proceeds to selection within their exterior bound- may be used for the support of any sectarian aries.58 institution. 68 The State may only select lands that are Section 28 of the Alaska Statehood Act vacant, unappropriated and, except for cer- amended the Mineral Leasing Act of 1920 to tain national forest lands, unreserved at the provide that 52½ percent of the annual net time of selection.59 The term “lands” includes proceeds from sales, bonuses, royalties, and retained interests in lands.’” The State may rentals of the public lands in Alaska, except thus select the mineral rights in any lands the naval petroleum reserve, are to be paid to that have been disposed of by the United the State for disposition by the legislature.69 States with a reservation of all or any of the This grant of revenues was in lieu of partici- mineral rights. pation in the Reclamation Fund.70 Under the State selections must be submitted to the Mineral Leasing Act, Alaska as a State (and Bureau of Land Management (BLM) accom- previously as a territory), also has the right to panied by a small filing fee, a description of receive 37½ percent of the mineral leasing profits for public roads and educational pur- the lands selected, and statements supporting 71 the availability of the land for selection.” If poses. This statehood grant raised Alaska’s the selection includes national forest lands, share of Federal leasing revenues generated the application must have the approval of the from public lands in the State to 90 percent. 62 The Reclamation Act of 1902 provides that Secretary of Agriculture. The BLM reviews 52½ percent of the Federal mineral leasing the State application and issues a tentative approval if it is determined that there is no revenues from 17 Western States are to be deposited in the Reclamation Fund to be used bar to passing legal title in the lands to the 72 for reclamation and water projects. The re- State other than the need to survey the lands or to issue a patent.63 After the BLM has maining 10 percent of the proceeds is reissued a tentative approval, the State of tained by the Federal Government. Alaska may make conditional sales or leases Section 28 of the Alaska Statehood Act also of the lands and resources selected.64 amends the Alaska Coal Leasing Act of 1914 by providing that 90 percent of the net profits from Government coal mines and all bonuses, REVENUE GRANTS royalties, and other payments under the Act are paid to Alaska for disposition by the State legislature.73 Section 20 of the Act repealed The land grants of over 104 million acres those sections of the 1914 Coal Leasing Act provide Alaska with sources of revenue from that withdraw certain Federal coal lands in State-owned lands and land-based resources. The Alaska Statehood Act also gave the State Alaska, and made these lands available for State selection. This special Alaska Coal a substantial share of the proceeds derived from Federal lands and resources. Leasing Act was eventually repealed so that coal deposits on Federal lands now fall under The Alaska Statehood Act repealed the provisions of the Mineral Leasing Act of school land grants under which the territory 1920.74 Ch. 5 Federal Laws Affecting Alaska Lands and Resources “ 109

Alaska was also given a 70-percent share A grant of this size to a new State, whether of the net profits derived from the sale of fur considered in terms of total acreage or of a seals and sea otter skins from the Pribilof percentage of the area of the State, is un- Islands in the Bering Sea.75 This fur trade is precedented. On the occasion of the admis- governed by several international treaties. At sion of the existing States, land grants have usually amounted to but 2 to 4 sections per the time of the Alaska Statehood Act, the pro- township, or a maximum of 6 to 11 percent of ceeds of the fur trade, after payment of all the land area. In many instances, however, operating costs and administrative expenses, much of the acreage had already passed into ranged from $1 million to $2 million per private taxpaying ownership, or was in the year.76 This grant was intended to “be of process of so passing at Federal title and material help to Alaska in meeting the an- there seems to be little chance of any marked ticipated greater costs of statehood.”77 change in this situation under existing Fed- eral policies .81 The Statehood Act gave Alaska a stake in mineral development both on non-Federal The land and revenue grants were to pro- and on Federal lands. Alaska received the vide the new State with a stable economic base and were made in lieu of grants to new full mineral rights to lands conveyed under 82 the Statehood Act and a full 90-percent share States for internal improvements, swamp- land grants,83 and grants provided by the of net proceeds from Federal mineral leases 84 in the State. This right applies to profits from Merrill Act of 1862. The House report notes that these grants were necessary to address deposits for coal, phosphates, sodium, potas- 85 sium, oil, oil shale, native asphalt, bitumen, “Alaska’s peculiar problems.” 78 bituminous rock, and gas. As a practical Over 99 percent of the land area of Alaska matter, only oil, gas, and coal deposits are is owned by the Federal Government. The presently important as revenue sources in committee believes that such a condition is Alaska. The Mineral Leasing Act does not ap- unprecedented at the time of the admission ply to metallic or industrial minerals that are of any of the existing States. acquired by the location of mining claims. ’g The public land laws of the United States, including those providing for the disposal of the public domain to private individuals, CONGRESSIONAL INTENT theoretically are generally applicable to Alaska. The committee, however, found that The House report accompanying the Alas- the beneficial effects of these laws have ka Statehood Act indicates that these grants been and are vitiated to a large degree by the of lands and revenues were intended to over- Federal policies of the last half century, of come two major objections to statehood: that withdrawing from public use many of the Alaska did not have a viable economy apart more valuable resources of the territory from the Federal expenditures for construc- through the creation of tremendous Federal reservations for the furtherance of the pro- tion projects and military bases, and that grams of the various Federal agencies. Thus, Alaska could not support the costs of self- approximately 95 million acres—more than government from the resources from which 80 one-fourth of the total area of Alaska—is revenue could be generated. today enclosed within various types of Feder- al withdrawals or reservations. Much of the At the time of statehood, approximately 99 remaining area of Alaska is covered by gla- percent of Alaska was in Federal ownership. ciers, mountains, and worthless tundra. Only about 600,000 acres were privately Thus, it appeared to the committee that this owned. The public land laws, although ap- tremendous acreage of withdrawals might plicable to Alaska, for all practical purposes well embrace a preponderance of the more had not operated to transfer lands to non- valuable resources needed by the new State Federal ownership prior to statehood as they to develop flourishing industries with which had in other States. to support itself and its people.86 110 ● Analysis of Laws Governing Access Across Federal Lands Staff OTA Credit: Photo colonization Russian of days the since activities fishing for center a been has Alaska, Island, Kodiak Kodiak, of village The Ch. 5 Federal Laws Affecting Alaska Lands and Resources Ž 111

To remedy what the committee report The report states that the high percentage terms “unhealthy” and “distorted” landown- of Federal ownership had “hampered the de- ership patterns in Alaska, the House commit- velopment of (such) resources for the benefit tee proposed land grants of 182,800,000 of mankind.”97 A long list of “potential basic acres.87 In the Alaska Statehood Act, this industries in the territory, including the figure was reduced to 102,550,000 acres of forest industries, hydroelectric power, oil general grants and 800,000 acres of com- and gas, coal, various other minerals, and the munity expansion grants.88 The committee tourist industry” could only exist in Alaska also proposed that these selection rights be “as tenants of the Federal Government, and enhanced by several additional provisions. on the sufferance of the various Federal agencies. ’ ’98 The failure of these industries to If the resources of value are withheld from the State’s right of selection, such selection grow under territorial government was at- tributed to Federal ownership of land and rights would be of limited value to the new 99 State. The committee members have, there- resources. The Alaska Statehood Act provi- fore, broadened the right of selection so as to sions were seen as necessary changes in Fed- give the State at least an opportunity to eral policy to assure the success of statehood. select lands containing real values instead of millions of acres of barren tundra.89 Concretely, the grant of statehood will mean some saving to the Federal Government Consequently, the State was given the right as the people of Alaska take over part of the to select lands “known or believed to be burden of supporting certain Government mineral in character,”90 lands “under lease functions now borne by the United States for oil and gas or coal development or which Treasury. may even be under production for those prod- 91 From the standpoint of economic develop- ucts, " and a “preference right of selection ment, the committee believes that statehood over lands returned to the public domain will permit and encourage a much more rap- from withdrawal status.”92 Withdrawals of id growth in the economy of the territory coal lands under the Alaska Coal Leasing Act than would be possible under Territorial of 1914 were also terminated to permit the status. Many witnesses have testified to the State to select these lands.93 committee regarding the wealth of untapped resources in Alaska. The committee report also observes that a serious problem facing the new State—"and It is apparent from the history of the last in some respects the most serious of all’’—is 88 years that the extreme degree of Federal that of financing the basic functions of State domination of Alaskan affairs has not re- government.94 “ Of these functions, road main- sulted in the maximum development of the tenance and road construction assume a key territory . . . the committee has included in this bill provisions which it believes will open importance both because of the heavy cost up many of the resources of Alaska for the and because of the crying need in Alaska for use of mankind.100 additional roads to facilitate economic development. ’95 The report notes with approval The result of these provisions was to provisions of the Federal Aid to Highways transfer to the State ownership of approx- Act of 1956 that allows Alaska to participate imately 104 million acres of onshore lands in the apportionment of funds for primary and resources, and 35 to 40 million acres of and secondary highway systems. These provi- submerged lands and resources. Not only was sions specify that only one-third of Alaska’s Alaska given a stake in the development of its area will be used as the area factor in the for- lands and resources, but revenue grants gave mula used for apportionment of highway the State an interest in the development of funds.96 resources on Federal lands as well. 112. Analysis of Laws Governing Access Across Federal Lands

FOOTNOTE REFERENCES FOR ALASKA STATEHOOD ACT

‘Proc. No. 3269, Jan, 3, 1969, 24 F.R. 81, 73 Stat. c16 17 See Public Land Order 4582, 34 F.R. 1025, Jan. 17, (1959). 1969. See also Mary Clay Berry, The Alaska Pipeline: *Treaty of Mar. 30, 1867, 15 Stat. 539. The Politics of Oil and Native Land Claims [ 1975). 3Act of August 24, 1912, Ch, 387, 37 Stat. 512, Most ‘aAct of December 18, 1971, Public Law 92-203, 85 Alaskans date Alaska’s territorial status from the Stat, 688,43 U.S,C. 1601, (supplement IV, 1974). Organic Act of 1884, Act of May 17, 1884, 23 Stat. 24, ~QSee 43 U.S.C. 1605, 1608, 1611, 1613, 1615, and which established Alaska as a public land district and 1618. provided that the laws of the United States relating to Z“Section 3(e) of ANCSA, 43 U.S. C, 1602(e) defines mining claims were to have full force and effect. The “public lands” as “all Federal lands and interests Act of August 24, 1912 extended the laws and Constitu- therein located in Alaska except: . . . land selections of tion of the United States to Alaska and created a ter- the State of Alaska which have been patented or ten- ritorial legislature. Acts of the legislature were subject tatively approved under section 6(g) of the Alaska to review by the U.S. Congress. Statehood Act, as amended (72 Stat. 341, 77 Stat. 223), 4Act of July 7, 1958, Public Law 85-508, 72 Stat. 339, or identified for selection by the State prior to Jan, 17, 48 U.S.C, Prec, s 21 (1970). For an anecdotal history of 1969. ” By definition, State selections are generally the campaign for Alaska Statehood, see Clause-M. unavailable for Native selection under ANCSA; how- Naske, An Interpretative History of AJaskan Statehood ever, certain unpatented State selections, in or near (1973), Ernest Gruening, The Battle for Alaska Native villages are made available for Native selection Statehood (1967). by sections n(a)(2) and 12 of ANCSA, 43 U.S.C. ‘See H. Rept. 624, 85th Cong,, 2d sess. (1957), re- 1610(aX2) and 1611. printed in 1958 U.S. Code Cong, & Ad. News. 2933 at “public Law 85-508, section 6,72 Stat. 340 (1958). 2944. (No Senate report was submitted with this legis- 2zId, lation, ) In 1954, nearly one-half of Alaska’s labor force zs~blic Law 85-508, section 28, 72 Stat, 351 (1958). was employed by the military. In 1960, over one-half of 24Public Law 85-508, section 6(c), 72 Stat. 340 (1958). State labor force was federally employed (including 25Public Law 85-508, section 6, 72 Stat. 340 (1958). military), University of Wisconsin School of Natural Re- 2Wublic Law 85-508, section 6(a), 72 Stat. 340 (1958). sources, Center for Resource Policy Studies and Pro- In Alaska v. LJdalJ, 420 F, 2d 938 (9th Cir, 1969), the grams, Federal Land Laws and Policies in Alaska, Vo~. State of Alaska challenged the Udall land freeze. The IV: A Summary of Issues and Alternatives, pp. 4-5 Court of Appeals for the Ninth Circuit ruled that lands (1970). (This multivolume study was prepared for the claimed by Alaska Natives were not, as a matter of Public Land Law Review Commission.) Law, “vacant, unappropriated, and unreserved, ” and 8H. Rept. 624, 1958 U.S. Code Cong. & Ad News thus open to statehood selection. An identical provision 2933-35. is contained in section 6(b), 72 Stat. 340 (1958). 71d,, at 2933-34, 27Public Law 85-508, section 6(a), 72 Stat. 340. ‘public Law 85-508 requires a republican form of 281d. State government, the acceptance and ratification of ‘gId, the State Constitution by the U.S. Congress, the ap- 3oId. proval of Statehood and the new constitution by Alaska 31 Public Law 85-508, section 6[b), 72 Stat. 340 (1958). citizens by referendum, a presidential proclamation 32Public Law 85-508, sections 4, 6(b), and 6(g), 72 that the foregoing steps have been completed, and the Stat. 339 to 342 (1958). election of two senators and one at-large represen- ss~blic Law 85-508, section IO(a), 72 Stat. 345 tative to Congress. (1958). ‘Public Law 85-508, section 2, 72 Stat. 339 (1958). Squniversity of Wisconsin, School of Natural Re- ‘OProc, 3269,24 F.R. 81, 73 Stat, c16 (1959). sources, Center for Resource Policy Studies and Pro- “public Law 85-508, section 4, 72 Stat. 339, as grams, A Study of Federal Land Law and Policies in amended by the Act of June 25, 1959 (The Alaska Om- Alaska, Vol. 1, at 141 to 143 (1970). nibus Act), Public Law 86-70, section 2(a), 73 Stat. 141, jsFederal State Land Use Planning Commission for codified at 48 U.S.C. Prec. $21 (1970). Alaska, “The D-2 Book”: Lands of National Interest in [zId. Alaska, 9 to 11 (1977). ]jId. se~blic Law 85-508, section 6(i), 72 Stat. 342 (1958). lqAct of May 17, lg06, 34 Stat. 197, as amended by 371d. the Act of August 2, 1956, 70 Stat. 954, previously 381d. codified at 43 U.S.C. 270-1 to 270-3, repealed by Public 39Alas. stat. 38.05.185 to 38,05.280. See Herbert, Law 92-203, section 18(a), 85 Stat. 710 (1971). Alaska Mining Law Manual, (1970], published by the ‘sPublic Law 85-508, section 4, 72 Stat. 339. Mineral Industry Research Laboratory of the Univer- 18H, Rept, GM, 1958 U.S. Code Cong. & Ad. News at sity of Alaska. The leasable minerals under Alaska law 2934. are oil, gas, ccal, sulfur, oil shale, bitumen, phosphate, Ch. 5 Federal Laws Affecting Alaska Lands and Resources . 113

sodium, and potassium. Locatable minerals include bonuses, royalties, and rentals of public lands under metals, ores of metals, as well as nonmetallic minerals the provisions of this chapter shall be paid into the which have special values such as asbestos, limestone, Treasury of the United States; 37VZ per centum thereof building stone, magnesite, silica, and the like. Herbert, shall be paid by the Secretary of the Treasury as soon at 1. as practicable after December 31 and June 30 of each ‘See, for example, 11 Alaska Administrative Code year to the State within the boundaries of which the 86.135(b). leased lands or deposits are or were located; . . .“ 4’Public Law 85-508, section 6(g), 72 Stat. 341 (1958). In 1976, section 28 was amended by Public Law ‘2Public Law 85-508, section 6(h), 72 Stat. 342 (1958), 94-273, section 6(2), 90 Stat. 377 (Apr. 21, 1976); Public as amended by Public Law 88-289, 78 Stat, 168 (1964). Law 94-377, section 9, 90 Stat. 1090 (Aug. 4, 1976); The Mineral Leasing Act of 1920 is codified at 30 U.S.C. Public Law 94-422, Title III, section 301, 90 Stat. 1323 181 et seq. The Alaska Coal Lands Leasing Act of 1914, (Sept. 28, 1976); and Public Law 94-579, Title HI, sec- c.330, 38 Stat, 741, formerly codified at 48 U.S.C. 432 et tion 317(a), 90 Stat. 2770 (Oct. 21, 1976). seq., was repealed by the Act of September 9, 1959, As amended, section 28 now provides, simply, that Public Law 86-252, 73 Stat. 490. 90 per centum of leasing revenues be paid to the State 43Public Law 85-508, section 6(h), 72 Stat. 342 (1958), of Alaska. 30 U. S.C.A. 191 (1978 supp.). as amended by Public Law 88-289, 78 Stat. 168 (1964). 7243 U.S.C. 391, Act of June 17, 1902, c. 1093, section “Id. See also, 43 CFR 2627.3(b)(4). 1, 32 Stat. 388, codified at 43 U.S.C. 391, as amended. 45Public Law 85-508, section 6(m), 72 Stat. 343 (1958). Monies deposited to the Reclamation Fund are to be The Submerged Lands Act of May 22, 1953, ch. 65, title used for the reclamation of arid and semiarid lands and 1, section 2, 67 Stat. 29, is codified at 43 U,S.C. 1301 et for certain other specified purposes. Public Law 94-377 seq. (1970). reduced the amount of leasing revenues to be paid into ’543 U.S.C. 1311(a) (1970). the Reclamation Fund from 52 to 40 percent. Public 4743 LJ, S.C. 1301(a) [1970). Law 94-377, section 9, 90 Stat. 1090 (Aug. 4, 1976), 43 4’43 U.s.c. 1301(f) (1970). U. S.C.A, 191 (1978 SUpp). 4g43 U.S.C. 1311(a) (1970). 73Public Law 85-508, section 28(a), 72 Stat. 351 5043 U,S.C. 1301(e) (1970). (1958). 5’Public Law 85-508, section 6(c), 72 Stat. 340 (1958). 74The Alaska Coal Leasing Act, formerly 48 U,S,C, 52Public Law 85-508, section 6(d), 72 Stat. 340 (1958). 432, was repealed by the Act of September 9, 1959, ‘J~blic Law 85-508, section 6[e), 72 Stat. 340 (1958). Public Law 86-252, section 1,73 Stat. 490. 54Public Law 85-508, section 5,72 Stat. 340 (1958). Leasing of Federal coal deposits in Alaska is now 55Public Law 85-508, section 6(k), 72 Stat. 343 (1958). governed by the Mineral Leasing Act of 1920, codified 55Public Law 85-508, section 6(g), 72 Stat. 341 (1958). at 30 U.S. C. 201 et seq. These regulations are found at 43 CFR 2627. 75Public Law 85-508, section 6(e), 72 Stat. 340 (1958) sTId. as amended by the Fur Seal Act of 1966, Public Law 5843 CFR 2627.3(c)(3), 89-702, Title IV, section 408(b), 80 Stat. 1098. The Ad- 5gPublic Law 85-508, section 6, 72 Stat. 340 (1958). ministration of the Pribilof Island fur trade by the U.S. ‘Public Law 85-508, sections 6(a) and 6(b), 72 Stat. Government was a scandal for many years. As late as 340 (1958), as amended by the Act of September 14, 195o, Natives were paid only in food commodities and 1960, Public Law 86-786, 74 Stat. 1024. See also 43 CFR received a yearly bonus never higher than $5OO for the 2627.3(a)(l). best hunters. The Native families lived in isolation in a 6143 CFR 2627.3(c). restricted area. No one could visit the islands without a 6243 CFR 2627, l(b). permit from the Government. It was not until 1966, that 8343 CFR 2627.3(b). the last vestiges of what had been called “virtual “Public Law 85-508, section 6(g), 72 Stat. 341, (1958) slavery” were lifted. See Cooper, Alaska—The Last and 43 CFR 2627. Frontier, 191 (1973]. See also 16 U.S.C. 1151 et seq., ‘sPublic Law 85-508, section 6(k), 72 Stat. 343 (1958). especially 46 U.S. C. 1168 which provides civil service The school land grants were authorized under section I retirement benefits for Natives engaged in the fur trade of the Act of March 4, 1915, 38 Stat. 1214, 48 U.S.C. and their survivors. 353, as amended. 7eH. Rept. 624, 1958 U.S. Code Cong. & Ad. News ‘cPublic Law 85-508, section 6(k), 72 Stat. 343 (1958). 2940. ‘7Public Law 85-508, section 6(f), 72 Stat. 341 (1958). “Id. “public Law 85-508, section 6(j), 72 Stat. 342 (1.958). 7aSee the Mineral Leasing Act of 1920, as amended, Cgpublic Law 85-508, section 28(b), 72 Stat. 351 30 U,S.C. 181 et. seq. (1958). The revenue provisions of the Mineral Leasing Tgsee the Genera] Mining Law of 1872, as amended, Act of 1920 are codified at 30 U.S.C. 191. codified at 30 U.S. C, 21-54, 161, 162, 541-541 ii, and 7 0H. Rept. 624, 1958 U.S. Code Cong. & Ad. News, at 621-625 (1970). 2940, 2956. ‘H. Rept. 624, 1958 U.S. Code Cong. & Ad. News at 7130 U.S. C, 191. Prior to its amendment in 1976, sec- 2944 to 2947. tion 28 provided that: “all monies received from sales, 8’Id, at 2931, 114. Analysis of Laws Governing Access Across Federal Lands

sz~blic Law 85-508, section 6(l), 72 Stat. 343 (1958). ‘See Public Law 85-508, section 6 (i), 72 Stat. 342 See Act of September 4, 1841, section 8, 5 Stat. 455, (1958). Revised Stat, sections 2378,2379,43 U.S.C. 857. glId. See also, section 6(b), 72 Stat. 340 (1958). Sssee Act of September 25, 1850, 9 Stat. 520, Revised gzfiblic Law 85-508, section 6(g), 72 Stat. 341 (1958). Stat. 2479,43 U.S.C. 857. gs~blic Law 85-508, section 20, 72 Stat. 351 (1958). s4The Act of July 2, 1862, 12 Stat. 503, 7 U.S.C. 301 to “H, Rept. 624, 1958 U.S. Code Cong. & Ad. News at 308, grants new States 30,000 acres of public lands for 2938. each Senator and Representative. 9sIdo E5H. Rept. GM, 1958 U.S. Code Cong. & Ad. News ‘eId. See 23 U.S.C, 101 et seq. 2937. ‘7H, Rept. 624, 1958 U.S. Code Cong. & Ad, News at ~Id. at 2937 to 2938. 2939. ‘71d. at 2938. 981d0 ‘Public Law 85-508, section 6, 76 Stat. 340 (1958). wQIdo 139H. Rept, 624, 1958 U.S. Code Cong. 1$ Ad. News at ‘wId. at 2941. 2939. Ch. 5 Federal Laws Affecting Alaska Lands and Resources “ 115

ALASKA NATIVE CLAIMS SETTLEMENT ACT

The Alaska Native Claims Settlement Act after 3 days of debate, the House of Repre- (ANCSA) l extinguished all Native claims to sentatives passed H.R. 39 which would des- lands and hunting and fishing rights based ignate over 100 million acres as national upon aboriginal title or use.2 In compensation, parks, forests, wildlife refuges, wild and ANCSA gave Alaskan Indians, Aleuts, and scenic rivers, and wilderness areas.9 In Oc- Eskimos $962.5 million and the right to select tober 1978, the Senate adjourned without act- 44 million acres of Federal lands in the State.3 ing on Alaska Lands. Alaska National Inter- Native Regional and Village Corporations est Lands legislation will be reintroduced in were established to administer land selec- the 96th Congress. tions and fund distributions.4 Conflicts over the Native land claims had slowed State land selections under the Alaska Statehood Act HISTORICAL OVERVIEW and threatened to impede construction of the Trans-Alaska Oil Pipeline. ANCSA removed a major obstacle to the pipeline and paved the Once, Alaska Indians, Aleuts, and Eskimos way for conveyances to the State and Native had dominion over all of Alaska’s 375 million groups that will shift approximately 40 per- acres. Alaska’s harsh climate and isolation cent of Alaska’s land to non-Federal owner- combined with Government policies to protect ship. the Natives in the use and enjoyment of Alaska’s lands, waters, and wildlife. When ANCSA also addressed the future manage- the United States purchased Alaska from ment of the remaining Federal lands in the Russia in 1867, the treaty provided: “The un- State. Section 17(d)(2) directed the Secretary civilized tribes in Alaska will be subject to of the Interior to withdraw up to 80 million such laws and regulations as the United acres of land that he deemed suitable for States may from time to time adopt in regard potential inclusion in the National Park, to the aboriginal tribes of that country.”10 Forest, Wildlife Refuge, and Wild and Scenic 5 However, from 1867 to 1900, the United Rivers Systems. The Secretary was to study States paid scant attention to the Natives in these lands and make recommendations to Alaska. The Organic Act of 1884, which es- Congress. To protect the national interest in tablished Alaska as a public land district, these lands, commonly called “d-2” lands, acknowledged the existence of aboriginal prior to congressional action, they were with- claims but reserved any settlement of these drawn from all forms of appropriation under claims for a future time: the public land laws, the mining and mineral leasing laws, and from selection by the State . . . the Indians or other persons in said dis- or Native Regional Corporations.6 Statutory trict shall not be disturbed in the possession authority for these withdrawals expired in of any lands actually in their use or occupa- December 1978.7 tion or now claimed by them, but the terms under which such persons may acquire the Many proposals for Alaska National In- title to such lands is reserved for future legis- terest Lands have been introduced in Con- lation by Congress.” gress in addition to the original “d-2” recommendations made by Secretary Morton in 8 By 1900 the United States began to take December 1973. During the 95th Congress, notice of Alaska and its Natives. By this time, extensive hearings on Alaska Lands were the era of negotiating Indian treaties had held before House and Senate Committees in ended. The circumstances that dictated the Washington, D. C., Alaska, and other loca- establishment of Indian reservations in the tions across the country. On May 19, 1978, lower 48 had not existed in Alaska. Alaska Note: Footnotes for this section appear on pp. 125-128. Native groups were never officially recog- 116 ● Analysis of Laws Governing Access Across Federal Lands

nized as tribes. The issue of indigenous rights owner; but the fruit of the land was more im- was consistently sidestepped by the Federal portant than the land itself. Important were Government. As a 1968 report of the Federal the fish, fur-bearing animals, caribou, and Field Committee for Development Planning in moose—and, even more important than land animals for Coastal Eskimos—the fruits of Alaska observed, the Alaska Natives were the sea.15 left in an “anomolous position:” They were omitted from the General Allot- By 1959, when the State was given its se- ment Act, which was a method of attaining lection rights to about 104 million acres of citizenship for American aborigines. They public lands, over 92 million of the 375 million were omitted from the Homestead Act as be- acres in Alaska had been withdrawn for pub- ing neither citizen nor alien capable of at- lic purposes. These Federal withdrawals in- taining citizenship. They were forbidden by cluded: the Tongass and Chugach National Congress to enter into treaties with the Forests; Mt. McKinley National Park and United States for the cession of some lands Glacier Bay, Katmai, and Sitka National and the retention of others. Physically they Monuments; the Kenai National Moose Range comprised the major part of Alaska’s popula- and a number of small wildlife refuges; Naval tion. Officially they were invisible. The mood of the land was to procrastinate about Petroleum Reserve No. 4; and several major Alaska which was far away and would never defense installations. Eighty percent of the be a State or have a white resident popula- Federal lands in Alaska were under the tion to contest national decisions.12 jurisdiction of the Bureau of Land Manage- ment (BLM). These lands were, and are, the It was not until passage of the Alaska major part of the Nation’s public domain. Statehood Act in 1958 that Alaska Natives Since statehood, the unreserved public do- began to be threatened in their use of the 13 main in Alaska has been further reduced by lands and subsistence resources. The State- the creation, in 1960, of the 9-million-acre hood Act did not settle the issue of aboriginal Arctic National Wildlife Range. land claims, but left it for future legislative or judicial action.14 The Federal Field Committee As Alaska began to make land selections, report summed up the position of Alaska Native groups began to protest. Beginning in Natives at statehood: late 1961, the Bureau of Indian Affairs filed The time for filing claims before the Indian protests on behalf of some Native villages, Claims Commission had passed. Claims must totaling approximately 5,860,000 acres and have arisen prior to August 13, 1946, and conflicting with 1,750,000 acres of State have been filed within 5 years to be heard. selections. The filing of individual or village The aboriginal title of the Natives of Alaska protests continued through 1966. By fall of had received no formal recognition, except 1966 the rate of filings accelerated. By April that granted in the jurisdictional act for the 1, 1968, there were 40 recorded protests Tlingit-Haidas in 1935. Again the need in covering 296,600,000 acres.16 Alaska was arising when there were no laws on the books to provide a remedy. Now many In 1966 because of these conflicting land areas of Alaska were feeling the encroach- claims, Secretary of the Interior Stewart ment of the white man. The grants were no Udall imposed an informal freeze on all longer a string of townsites, a scattering of Alaska public lands. This freeze halted any homesteads, a few hundred mining claims— further Federal withdrawals, State selec- they were in the millions of acres, and, more importantly, over all of the resources upon tions, and appropriations under the public which the Native peoples depended for their land laws. In January 1969, this freeze was livelihood. Anglo-Saxon land ownership was formalized by Public Land Order 4582, which foreign to Alaska Natives. They might claim withdrew all unreserved Federal lands in and use the land on which their homes, fish Alaska pending congressional consideration camps, and landing sites were situated, with of legislation on Alaska Native land claims. 17 the same protectiveness of any other land- With discovery of oil at Prudhoe Bay, pres- Ch. 5 Federal Laws Affecting Alaska Lands and Resources ● 117 sure for resolution of the Native claims in- regions established by section 7 in order to be creased. Because of the land freeze, the Sec- eligible for participation in the settlement.24 retary could not grant a permit for construc- (See figure 5.) The original period of enroll- tion of a pipeline to transport oil from the ment ended on March 30, 1973; however, North Slope. Finally, on December 18, 1971, ANCSA was amended in 1976 to allow addi- the Alaska Native Claims Settlement Act was tional Native enrollments.25 About 70,000 signed into law. eligible Natives were registered during the first enrollment period.26 An Alaska Native, SETTLEMENT OF NATIVE CLAIMS as defined in section 3(b) of ANCSA, is: A citizen of the United States who is a per- ANCSA was passed in congressional recog- son of one-fourth degree or more Alaska In- nition of “an immediate need for a fair and dian (including Tsimshian Indians not en- just settlement of all claims by Natives and rolled in the Metlakatla Indian Community), Native groups of Alaska, based upon aborigi- Eskimo, or Aleut blood, or combination there- nal land claims.”18 ANCSA is more than a of. The term includes any Native as so de- public land law. In section 2(b) of ANCSA, fined either or both of whose adoptive Congress declares, in part, that “the settle- parents are not Natives. It also includes, in ment should be accomplished rapidly, with the absence of proof of a minimum blood certainty, in conformity with the real quantum, any citizen of the United States economic and social needs of Natives, with- who is regarded as an Alaska Native by the Native village or Native group of which he out litigation, (and) with maximum partici- claims to be a member and whose father or pation by Natives in decisions affecting their 19 mother is (or, if deceased, was) regarded as rights and property.” ANCSA extinguished Native by any village or group, Any decision all Native claims of aboriginal title to lands in of the Secretary regarding eligibility for Alaska and, in exchange gave Alaska In- enrollment shall be final.27 dians, Aleuts, and Eskimos an Alaska Native Natives residing in Alaska are also en- Fund of $962.5 million and the right to select rolled in a Native village.28 Natives who live 44 million acres of Federal lands. outside of Alaska and who choose not to Section 4 of ANCSA provides that any and enroll in their ancestral regions may join a all aboriginal titles and claims of aboriginal 13th region.29 The 13th region cent-ains no title to lands in Alaska are extinguished.20 All villages. conveyances of public lands and waters including tentative approvals of land selections Native Corporations under the Alaska Statehood Act are to be regarded as extinguishing any aboriginal title ANCSA requires the organization under to the lands involved.21 All Native claims of Alaska corporation law of a profit-making aboriginal title in Alaska based on indigenous Native Regional Corporation for each re- use or occupancy of lands, including sub- gion.30 The Act further requires the organiza- merged lands, and any aboriginal hunting tion of a Village Corporation for each vil- and fishing rights were extinguished.22 All lage.31 These corporations administer land claims against the United States, the State of selections and cash distributions from the Alaska, and any persons that were based on Alaska Native Fund.32 As profit-making busi- aboriginal title or use or on the laws of the ness entities, Native Regional Corporations United States or other Nations were also ex- manage other business enterprises and in- tinguished. 23 vestments. 33 Individual Natives are shareholders in the Native Regional and Village Native Enrollment Corporations of their enrollment. Section 5 of the Act requires that all The stock in Native Corporations may not Alaska Natives must enroll in 1 of 13 Native be transferred by a living shareholder before

4( I- 8,14 ( ) - T, . r, 118 ● Analysis of Laws Governing Access Across Federal Lands and Regional Combined Estimated and ANCSA acres)

-iAN of E Under OC million (in Established OCEAN Entitlements PACIFIC Corporations 1977. Corporation Regional Alaska, Village for Native ARCTIC of Commission /:: Boundaries Planning Use Land 1.5 ALEUT 5.-Approxlmate Federal-State Figure .,eP~Q~-.~~/ SOURCE: Ch. 5 Federal Laws Affecting Alaska Lands and Resources . 119

December 18, 1991, except under a court de- land and thus does not share in the inter- 34 45 cree of separation, divorce, or child support. regional revenue sharing. When a Native shareholder dies, however, the stock passes as other personal property Land Selections and may be inherited by a non-Native.35 Under various provisions of ANCSA, Alas- ka Natives will receive title to approximately Alaska Native Fund 46 44.8 million acres of public lands in Alaska. The Settlement Act provides that Alaska Of these lands, the surface estate to about 22 Natives are to receive $962,500,000. Of this million acres is to be conveyed to about 200 amount, $462,500,000 is to be appropriated Native Village Corporations organized under 36 47 by the Congress over a period of 11 years. the Act. The subsurface estate to these 22 The remaining $500 million will be derived million acres and fee simple title to some 18 million acres is to be divided among the 12 from a 2-percent royalty on Mineral Leasing 48 Act revenues produced from State and Feder- resident Native Regional Corporations. [The 37 al lands. The Native royalty is subtracted term “subsurface estate” is roughly equiva- from Federal lease revenues before deduct- lent to “mineral rights.”) Although Regional ing Alaska’s statehood share of 90 percent of Corporations hold the subsurface rights, min- the profits.38 Royalty payments will cease eral exploration can occur within the bound- when $500 million have been paid.39 These aries of any Native village only with the con- 49 monies are to be deposited to the Alaska sent of the Village Corporation. 40 Native Fund in the U.S. Treasury . The Village Corporation selections were The monetary settlement provided by the to be chosen by December 18, 1974, from 50 Act is to be distributed quarterly to the lands in and around existing Villages. The Regional Corporations in proportion to the village land entitlements outside of southeast numbers of their shareholders.41 Each Re- Alaska are made on the basis of population.51 gional Corporation, in. turn, is required to The 11 Regional Corporations outside southeast Alaska were to select the lands to which redistribute one-half of its receipts from the 52 Native Fund to each Village Corporation for they are entitled by December 18, 1975. Re- gional Corporation entitlements are made its members and pro rata to Native share- 53 holders who are not members of Village Cor- under a complex formula. 42 porations. The Secretary of the Interior was directed The 12 Regional Corporations that are to issue patents “immediately” after the Native Corporations have made their selec- eligible to receive lands under the Act are re- 54 quired to share the revenues derived from the tions. Conveyances of Native selections have been delayed by administrative problems, by timber and mineral resources on selected lands. 43 Each of the 12 landholding Regional disagreement between Native Corporations and the Department of the interior, and by Corporations must divide 70 percent of the 55 revenues from its timber and mineral re- litigation. sources with the other 11 Regional Corpora- tions, This division of revenues is propor- Withdrawals for Native Selections tional to the number of shareholders. As in the case of the monetary compensation pro- Subsection Ii(a) of ANCSA withdrew the vided by the Act, each Regional Corporation 25 townships surrounding any Native village is required to redistribute one-half of the outside southeastern Alaska from all forms of revenues it so receives among its sharehold- appropriation under the public land laws, in- 44 ers and Village Corporations. The 13th cluding the mining and mineral leasing laws, Regional Corporation, which is composed of and from selection by the State.56 Similarly, nonresident Natives, is ineligible to receive subsection 16(a) of ANCSA withdrew the nine 120 w Analysis of Laws Governing Access Across Federal Lands

townships surrounding certain Native vil- Approximately 4.8 million additional acres lages in southeastern Alaska.57 These with- will pass to the Natives as a result of two drawals were made to form a pool of land open-ended provisions in ANCSA. Section 18 from which Native selections could be made.58 provides for approval of Native allotment ap- The withdrawals included some lands al- plications under prior statutes pending at the ready selected by or tentatively approved to, time ANCSA was adopted.67 All allotments so but not yet patented to, the State under the approved count against the 2 million acres to Alaska Statehood Act.59 National parks, na- be conveyed to the Natives under subsection tional monuments, and land withdrawn for 14(h), but only if approved prior to December military purposes (other than Naval Petro- 18, 1975.68 Of an initial 1.2 million acres en- leum Reserve No. 4) were excluded from compassed by pending allotment claims, it is these withdrawals. The Secretary of the In- estimated that 200,000 acres are covered by terior was directed to withdraw additional invalid claims. Another 200,000 acres repre- “deficiency” land from the nearest unre- sent claims approved prior to December 18, served, vacant, and unappropriated public 1975. This leaves 800,000 acres to be con- lands if the statutory withdrawals were not veyed that will not count against the 2 million sufficient to satisfy Native selection rights.60 allowed under subsection 14(h).69 Approximately 108 million acres were Section 19(b) provides an option to those withdrawn for Native selection purposes by Village Corporations located on former “In- subsections Ii(a) and 16(a).61 Section 16 au- dian Reserves” to take fee title to the “Re- thorizes Native village selections of 230,400 serve” and forego other benefits of ANCSA or acres in southeastern Alaska from lands to take the benefits of ANCSA.70 Six such cor- withdrawn under that section.62 Section 12 porations elected to take title to four former authorizes selection by Native Village Cor- reserves. These reserves are: St. Lawrence porations outside southeastern Alaska of 22 Island (1.2 million acres); Elim (0.3 million million acres from the land withdrawn by acres); Venetie (1.4 to 1.7 million acres); and subsection 11(a).63 Section 12 further author- Tetlin (0.75 million acres). This acreage, izes selection by Native Regional Corpora- about 4 million, is in addition to the 40 million tions of an additional 16 million acres, less acres covered by sections 12, 14, and 16.71 the amount of land selected by the Native Vil- All together, these provisions authorize lage Corporations in southeastern Alaska, selection of approximately 44.8 million acres from the land withdrawn by subsection n(a), by various Native groups in Alaska from excepting land selected by the State prior to around 110 million acres of withdrawals. ANCSA’s enactment.64 As permitted by the Department of the In- A limited amount of the 26 million acres terior’s regulations, the Natives greatly over- selected by the State prior to ANCSA’s enact- selected in order to protect themselves from ment was made available for Native selec- loss of expected acreage due to preexisting tion under sections n(a)(2) and 12(a)(l) of 72 65 rights or subsequent land surveys. Around ANCSA. It is estimated that 2.6 million of 80 million acres were so selected. Pursuant to these acres will pass into Native ownership. subsection 22(h) of ANCSA, all withdrawals Subsection 14(h) authorizes the Secretary made for Native selection purposes termi- to withdraw an additional 2 million acres of nated on December 18, 1975, except for land unreserved and unappropriated public land actually selected by, but not yet conveyed to, located outside the areas withdrawn by sub- the Natives.73 Approximately 30 million acres sections 1 l(a) and 16(a) and to convey such of unselected public lands remained. These land for certain specified purposes with the lands are covered by the withdrawals 74 balance remaining to be shared by all 12 resi- authorized by section 17(d)(l) of ANCSA. dent Native Corporations on the basis of pop- The Regional Corporations have empha- ulation. 66 sized mineral potential in making their land Ch. 5 Federal Laws Affecting Alaska Lands and Resources ● 121 selections. In fact, several of them have ob- withdrawn pursuant to section 17(d)(2). tained extensive mineral surveys of land These section 17(d)(2) withdrawals remain in available to them for selection. These surveys effect until Congress acts on the recommen- were usually performed in return for certain dations or until December 18, 1978, which- development rights in the land eventually ever is earlier.82 The section 17(d)(2) with- selected .75 drawal terminated on December 18, 1973, for Generally, the 44.8 million acres of Native the 15 million acres not recommended. The land will be available for mineral exploration other 18.5 million acres recommended for inclusion are lands that were withdrawn pur- and development. The Regional Corporations 83 will control the minerals on 40 million acres. suant to subsection 17(d)(l). Some of the Regional Corporations will likely The 80-million-acre limitation in with- favor development. Other Native groups will drawal authority of section 17(d)(2) does not control the minerals in the 4.8 million acres impose any limitation either on the total num- conveyed under sections 18 and 19, and, ber of acres that may eventually be included since these acres will probably encompass in Alaskan conservation systems or on the culturally significant areas, these groups may number of acres that the Secretary may with- be somewhat less favorable to mineral activ- draw under other authority for congressional it y. consideration or classification. Similarly, the 80-million-acre limitation on the withdrawal authority of section 17(d)(2) does not impose ALASKA NATIONAL any restriction on congressional designations INTEREST LANDS of Alaska National Interest Lands.

Section 17(d)(2) of ANCSA authorized the Secretary to withdraw up to 80 million acres ALASKA PUBLIC INTEREST LANDS of unreserved public lands to be studied for possible addition to the National Park, Forest, Section 17(d)(l) of ANCSA directs the Sec- Wildlife Refuge, and Wild and Scenic Rivers retary of the Interior to “review the public Systems.” The Act required the lands to be lands of Alaska and determine whether any withdrawn from all forms of appropriation portion of these lands should be withdrawn under the public land laws, including the min- under authority provided for in existing law ing and mineral leasing laws, from State to insure that the public interest in these selection under the Alaska Statehood Act, lands is properly protected.”84 The section and from selection by Native Regional Cor- authorizes him “to classify or reclassify any porations under ANCSA.77 Native Regional lands so withdrawn and to open such lands to and Village Corporation selections, however, appropriation under the public land laws in were allowed where the “d-2” withdrawals accord with his classifications.”85 Withdraw- overlapped the statutory subsection 11(a) als pursuant to subsection 17(d)(l) do not af- withdrawals for Native selection purposes.78 fect State and Native selection rights in those The Secretary withdrew the full 80 million areas withdrawn for Native selection pur- acres.” Section 17(d)(2) also required that the suant to section 11.86 The section 11 with- Secretary submit his recommendations con- drawals, however, precluded State selection cerning those lands to Congress by December in such areas, at least until the section 11 18, 1973.80 withdrawals terminated in December 1975.87 On December 17, 1973, Secretary Morton During 1972, the Secretary withdrew recommended that 83.5 million acres be almost all public lands in Alaska that were added to the four conservation systems in not already reserved from State and Native Alaska.81 Approximately 65 million of these selections.88 Most of these so-called “d-l” 83.5 million acres were lands previously withdrawals simply backed up other with- 122 ● Analysis of Laws Governing Access Across Federal Lands drawals, such as the statutory withdrawal JOINT FEDERAL-STATE for Native selection purposes. Thus, any LAND USE PLANNING areas not selected by the Natives or recom- COMMISSION FOR ALASKA mended for inclusion in the four conservation systems remain withdrawn under subsection 17(d)(l) despite the termination of the more Section 17(a) of ANCSA established the Joint Federal-State Land Use Planning Com- specific withdrawals. There is no time limit 93 on the section 17(d)(1) withdrawals, which mission for Alaska. This Planning Commis- will probably be maintained until the land is sion is composed of 10 members—5 members classified or disposed of. representing the State of Alaska and 5 members representing the United States. The Alaska members include the Governor or his Certain areas were left open to State selec- 89 designate and four other persons appointed tion only. Others were left open to location by the Governor.94 At least one of these State for metalliferous minerals as well as State appointees must be a Native as defined in the selection. Fifteen million acres were made Act.95 The five members representing the available for entry under the public land Federal Government include one member ap- laws, with a 90-day preference to the State to pointed by the President with the advice and select areas it desired. However, the avail- consent of the Senate and four members ap- able acreage was generally in areas not pointed by the Secretary of the Interior.96 The suited for habitation or productive develop- Governor (or his designate] and the Presiden- ment, and attempted settlement led to hard- tial appointee serve as cochairmen of the ship, death, and abandoned entries. In 1974 Commission. 97 All decisions of the Commission the 12.4 million acres of remaining unse- require concurrence by the cochairmen.98 All lected and unentered public lands were 90 members serve at the pleasure of the appoint- closed until they could be classified. ing authority.99 The Planning Commission has no regula- The State will eventually seek to complete tory or enforcement responsibilities, but has its statehood selections from these d-l lands. important advisory functions. *W The Commis- Public lands withdrawn for possible Native sion was to expire on December 31, 1976. selection under ANCSA and lands withdrawn However, Public Law 94-204, approved Jan- under section 17(d)(2) as national interest uary 2, 1977, provides that the Commission lands that are not included in national con- will continue in existence until May 30, servation systems will revert to a public land 1979. 101 d-l status because of overlapping d-l withdrawals. ANCSA provides that the Planning Com- mission shall: Section 603 of the Federal Land Policy and (A) undertake a process of land use plan- Management Act of 1976 requires that all ning, including identification of and the mak- public lands managed by the BLM must be in- ing of recommendations concerning areas ventoried and studied for their wilderness planned and best suited for permanent reser- potential by 1991.9l Under this provision, vation in Federal ownership as parks, game some of the remaining public lands in Alaska refuges, and other public uses, areas of may be added to the National Wilderness Federal and State lands to be made available for disposal, and uses to be made of lands re- Preservation System. Wilderness review of maining in Federal and State ownership; Alaska’s public lands will be deferred until after completion of Native land conveyances (B) make recommendations with respect to and congressional consideration of national proposed land selections by the State under interest land proposals called for in section the Alaska Statehood Act and by Village and 17(d)(2).92 Regional Corporations under this Act; Ch. 5 Federal Laws Affecting Alaska Lands and Resources . 123

(C) be available to advise upon and assist EASEMENTS ACROSS in the development and review of land use NATIVE LANDS plans for lands selected by the Native Village and Regional Corporations under this Act and by the State under the Alaska Statehood Section 17(b) provides that “the Planning Act; Commission shall identify public easements [D) review existing withdrawals of Federal across lands selected by Village Corporations public lands and recommend to the President and the Regional Corporations and at peri- of the United States such additions to or odic points along the courses of major water- modifications of withdrawals as are deemed ways which are reasonably necessary to desirable; guarantee international treaty obligations, a full right of public use and access, and access (E) establish procedures, including public for recreation, hunting, transportation, util- hearings, for obtaining public views on the land use planning programs of the State and ities, docks, and such other public uses as the Planning Commission determines to be impor- Federal Governments for lands under their 103 administration; tant.’’ In identifying these public easements, the Commission is to consult with (F) establish a committee of land use ad- State and Federal agencies, review proposed visers to the Commission, made up of representatives of commercial and industrial land transportation plans, and receive and review users in Alaska, recreational land users, wil- statements from interested groups and individuals on the need for and the proposed derness users, environmental groups, Alaska 104 Natives, and other citizens; location of public easements. The Secretary of the Interior must consult with the Planning (G) make recommendations to the Presi- Commission and reserve “such easements dent of the United States and the Governor of as he determines are necessary” in any pat- Alaska as to programs and budgets of the Federal and State agencies responsible for ent conveying lands to a Native Village or Re- gional Corporation under the provisions of the administration of Federal and State 105 lands; ANCSA. (H) make recommendations from time to Section 17(c) provides that “in the event time to the President of the United States, that the Secretary withdraws a utility and Congress, and the Governor and legislature transportation corridor across public lands of the State as to changes in laws, policies, in Alaska pursuant to his existing authority, ” and programs that the Planning Commission the State and Native Village and Regional determines are necessary or desirable; Corporations will be precluded from selec- 106 (I) make recommendations to insure that tions in the areas withdrawn. This provi- economic growth and development is order- sion refers to right-of-way corridor with- ly, planned and compatible with State and drawals for a construction haul road and an national environmental objectives, the public oil pipeline to transport oil from the North interest in the public lands, parks, forests, Slope. and wildlife refuges in Alaska, and the economic and social well-being of the Native In February and March 1976, the Secre- people and other residents of Alaska; tary of the Interior issued orders establishing the departmental policies and guidelines on (J) make recommendations to improve the reservation of extensive easements coordination and consultation between the across lands conveyed to Native Corpora- State and Federal Governments in making re- 107 source allocation and land use decisions: and tions. These easements provoked strong reactions from several Native Corporations (K) make recommendations on ways to and have been the subject of litigation. avoid conflict between the State and the Native people in the selection of public Order No. 2982 deals with local ease- lands. *02 ments, that is, all public easements other — —.

124. Analysis of Laws Governing Access Across Federal Lands than those used in interregional or interstate panhandle were excluded from the easement commerce, in the transportation of natural provision because prior studies of potential resources, or in interstate communications transportation routes disclosed that few systems. 108 The order specifies the policy, areas in these regions would be used for guidelines, and procedures for reserving energy and natural resource transportation easements. This order includes easements to systems. 117 provide: access to public lands and resources; a continuous 25-foot easement along Order No. 2987 specifically provides that the marine coastline; access and recreational such easements will not be available for ac- use easements along “highly significant” cess across Native lands for development of recreational streams and rivers; and ease- resources on non-Federal lands: ments for utility, communications and Privately owned energy, fuel, and natural weather purposes, for landing and docking resources that are being developed for a sites, and for “overnight” camp and rest 109 profit should not be afforded extraordinary areas, etc. Guidelines include standards, privileges across private property. There- widths, uses, and purposes. These easements fore, easements should not be reserved by are to be reserved to protect the public in- the United States in conveyances to Alaska terest in land conveyed to Natives under Natives for the benefit of such privately ANCSA and to meet the requirements of pub- owned energy, fuel, and natural resources. 118 lic law.110 Several of the easements specified in this order were challenged by Natives and Subsequently, the Alaskan Natives filed suit, contesting the validity of sections of both overturned by a Federal District Court deci- 119 sion.111 orders. On July 7, 1977, the Federal District Court in Alaska ruled that several aspects of Order No. 2987 establishes guidelines for Order 2982 were invalid.120 In particular, the reserving easements for the transportation of court found that the “continuous 25-foot energy, fuel, and natural resources.112 This marine coastline easement” and a major por- order establishes the so-called “floating” tion of the linear easements on “highly signifi- easements, that is, easements which are not cant recreational rivers and streams were il- specifically located but rather are reserved legal.’’ 121 The court also ruled that Order “in behalf of the United States to cross all the 2987, the “floating” easement for transporta- land conveyed pursuant to the ANCSA . . "113 tion corridors, was void in toto.122 The specific location of easements reserved by this order is to be determined after con- Because the court viewed ANCSA as a set- sultation with and consent of the non-Federal tlement act and not a public land law, certain owner. 114 The order provides that the United specific statutory easements reserved on all lands conveyed out of Federal ownership States may exercise the right of eminent domain if consent is not given.115 were also overturned. These easement reservations for railroads, communications lines, This order subjects all lands conveyed to and ditches and canals were held to be pre- Alaska Natives to a “floating” or “blanket” empted by section 26 of ANCSA.123 The Justice easement for federally owned energy trans- Department filed a protective notice of ap- mission systems or for the transportation of peal, and several of the plaintiffs also ap- federally produced or purchased energy, pealed.124 A tentative settlement of the ease- fuel, or natural resources.116 Native lands in ment litigation was announced in early 1978. the Aleutian Islands and the southeastern Order 2987 was revoked in May 1978.125 Ch. 5 Federal Laws Affecting Alaska Lands and Resources ● 125

FOOTNOTE REFERENCES FOR ALASKA NATIVE CLAIMS SETTLEMENT ACT

‘Act of December 18, 1971, Public Law 92-203, 85 out payment of just compensation. See Tee-Hit-Ton In- Stat. 688, codified at 43 U.S.C. 1601 (Supp, IV 1974). dians v. United States, 348 U.S. 272 (1955). 243 U.S.C. 1603. ‘eAlaska Natives and the Land, at 440. By 1968, these 3 See 43 U.S.C. 1605, 1608, 1611, 1613, 1616, and protests covered 80 percent of the lands in the State. 1618. ‘ See Statement of Asst. Secretary of the Interior, Guy 443 U.S. C. 1606, 1607. Martin, before the Subcommittee on General Oversight 543 U.S.C. 1616(d)(2)(A). and Alaska Lands of the House Comm. on Interior and 81d. Insular Affairs, page 2, July 21, 1977. (Hereinafter 743 U.S.C. 1616(d)(2)(D). Statement of Asst. Secretary Martin). 8The major Alaska Lands Bills introduced in the 95th 1’34 F,R. 1025, Jan. 17, 1969. At his confirmation Congress are: hearings, Interior Secretary-Designate Walter Hickel, H.R. 39, The Alaska National Interest Lands Conser- the former Governor of Alaska, agreed to honor the vation Act, introduced by Representative Udall and Udall land freeze for 2 years. supported by the Alaska Coalition, an alliance of en- 1’43 U.S.C. 1601(a). vironmental, conservation, and recreation organiza- “43 U.S.C. 1601(b). tions (comparable measures include H.R. 1974 and H.R. 2043 U.S.C. 1603. 2976); 2143 U.S.C. 1603(a). S. 1500, Senate version of H.R. 39 introduced by 2243 U.S.C, 1603(b). Senator Metcalf (comparable measure, S. 500); 2343 u.S.C. 1603(c). S. 1787, Alaska National Interest Lands Act, in- 2443 U.S.C. 1604. The 12 regions, recognized in sec- troduced by Senator Stevens of Alaska and supported tion 5(a), roughly correspond to the geographic areas by Representative Young of Alaska and by Governor represented by the Native associations existing at Hammond of Alaska; passage of ANCSA. 43 U.S.C. 1606(a). The 13th region S. 499, H.R. 6564, the original Morton proposal first includes all nonresident Natives who chose not to enroll introduced in the 93d Congress, Dec. 17, 1973; and in the 12 geographic regions. 43 U.S.C. 1606(c). S. 2944, Alaska Lands Conservation and Manage- 2543 U,S.C. 1604, as amended by the Act of January 2, ment Act, introduced by Senator Gravel of Alaska. 1976, Public Law 94-204, section 1,89 Stat. 1145. The Carter Administration did not offer a separate 2bMorgan, “From Ketchikan to Barrow, ” Alaska D-2 proposal, but, instead recommended a series of Magazine, May 1977, at 9. technical amendments to H.R. 39 in hearings before the 2’43 U.S.C. 1602(b) House and Senate Committees. 2843 U.S.C. 1605(b). For a description and comparison of Alaska Lands 2943 U.S, C, 1606(C), originally, the %CI’etEIry ruled legislation introduced in the 94th Congress, see Federal that a majority of nonresident Natives had elected not State Land Use Planning Commission for Alaska, “The to form an optional 13th region under section 7(c) of D-2 Book” Volume 11: Lands of National Interest in ANCSA. This decision was challenged and reversed. Alaska-” A Comparative Analysis, ” November 1977. Alaska Native Ass’n of Oregon v. Morton, Civil Action ‘H.R. 39, 95th Cong., 2d sess., 124 Cong. Rec. H4329 No. 2133-73; A~aska Fed’n of Natives Int’1 v. Morton, (daily ed. May 19, 1978). See also House Rept. 95-1045, Civil No. 2141-73 (D. D. C., filed Dec. 30, 1974). See also pts. I and II (Alaska National Interest Lands Conserva- Public Law 94-204, section 8,89 Stat. 1149. tion Act of 1978). On Oct. 15, 1978, the Senate ad- 3043 U.S,C, 1606(d), Section 7(e), 43 LJ. S.C. 16We), re- journed without acting on its version of Alaska Lands quires that the original articles of incorporation and legislation. S, Rept. 95-1300, reported Oct. 9, 1978. See bylaws of the corporation must be approved by the Sec- also 124 Cong., Rec. S19135 to S19141 (daily ed. Oct. retary of Interior within 18 months of the enactment of 14, 1978, pt. IV). ANCSA. The articles of incorporation may not be ‘OTreaty of March 30, 1867, 15 Stat. 539. amended within 5 years of establishment of the Region- “Act of May 17, 1884, section 8,23 Stat. 24. al Corporation without the approval of the Secretary. ‘zFederal Field Committee for Development Planning Thirteen Native Regional Corporations were formed in Alaska, Alaska Natives and the Land, 434 (1968). under section 7 of ANCSA, 43 U.S.C. 1606. These cor- 13 Act of July 7, 1958, Public Law 85-508, 72 Stat. 339, porations and their enrolled membership as of March 48 U.S.C. Prec. $21 (1970). 23, 1978 are: 141d., section 4. Enrolled ‘5Alaska Natives and the Land, supra. note 12, at Region membership 439. Without Federal recognition of their rights, Alaska Ahtna, Inc...... , ...... 1,057 Natives faced the threat that their aboriginal lands Aleut Corporation...... 3,124 might be disposed of by the Federal Government with- Arctic Slope Regional Corporation...... 3,710 126 ● Analysis of Laws Governing Access Across Federal Lands

Enrolled 1610(b)(2)), section 12 (43 U.S.C. 1611), section 14 (43 Region membership-— . U.S.C. 16) and section 16 [43 U,S.C. 1615) of ANCSA. Bering Straits Native Corporation...... 6,271 Of over 200 Native villages, 195 were determined to Bristol Bay Native Corporation ...... 5,315 be eligible for village selections (however, the eligibility Calista Corporation ... , ...... 13,193 of one of these villages has been challenged in litigation Chugach Natives, Inc...... 1,881 brought by some Alaskan residents). Ten more villages Cook Inlet Region, Inc...... 6,052 are involved in litigation with the Department of the In- Doyon, Ltd...... 8,905 terior over eligibility. Three more villages which had Koniag, Inc...... 3,267 NANA Regional Corporation, Inc...... 4,761 filed selections under section 12(a] were found ineligi- Sealaska Corporation...... 15,388 ble by the Department. Statement of Asst. Secretary The 13th Regional Corporation ...... 3,997 Martin, supra, note 16 at page 16. SOURCE: Alaska Natives Regional Profiles, U.S. Dept. of the In- ‘See 43 U.S.C, 161 l(a) and (b); 43 U.S,C. 1613(h); 43 terior, Bureau of Indian Affairs, Report No. 269, October 1978. U.S.C. 1615, 3’43 U,S.C. 1607. 4943 U.S.C. 161 3(f). Szsee 43 U.S.C. 1606, 1611, and 1613. ’43 U.S,C. 1611(a)(l); 43 U.S,C, 1615(b). ssFOr a description of the business ventures of the s’43 U.S.C. 1613(a), section 14(a), 43 U.S.C. 1613(a) Alaska Native Corporations, see Morgan, “From Ketch- provides for village land entitlements for first round ikan to Barrow, ” Alaska Magazine, May 1!377 at 9 and selections under section 12(a) on the basis of popula- Maska Native Regional Pro~iles, supra, note 30. tion: 3443 U.S. C, 1606(h)(l). On Jan. 1, 1992, all Native cor- Native population poration stock issued will be canceled and each in 1970 census between Entitlement shareholder will receive new stock without any restric- 25 and 99. ., ...... 69,120 acres tions on transfer on a share for share basis. 43 U.S.C. 100 and 199...... 92,160 acres 1606(h)(3). 200 and 399. .., , ...... 115,200 acres 3343 U.S, C. 1606(h)(2). 400 and 599. , ., ... , . . . ., ...... 138,240 acres 3643 U.S. C. 1605( a~l). 600 or more. , ...... , ., ...... 161,280 acres 3743 U.s,co lG()!j(a)(2) and 1608. See also 30 U.S.C. Native villages in southeast Alaska receive 23,040 191. acres regardless of population; 43 U.S.C. 1615. Second- 3s43 U.S,C. 1608(d), section 6(g) of ANCSA as round village selections are to be allocated among vil- amended by Public Law 93-153, the Trans-Alaska Pipe- lages by the Regional Corporations “on an equitable line Act, section 407, 87 Stat. (1973), provides for ad- basis after considering historic use, subsistence needs, vance payments to the Alaska Native Fund chargeable and population;” 43 U.S,C. 1611(b). against mineral leasing revenues to be paid under sec- 5z43 U.S.C. 161 1(c)(3). tion 9 of ANCSA, 43 U.S.C. 1608(g). These advance pay- 5343 U.S, C. 1611(c), The 11 resident Regional Cor- ments were authorized because of the delays in the con- porations outside southeast Alaska will share in ap- struction of the Trans-Alaska Pipeline. Advance pay- proximately 16 million acres distributed according to a ments stopped once the pipeline commenced delivery of “land lost” formula based on the geographic area of oil from the North Slope in the late summer of 1977. each region set forth in section 12(c), 43 U.S.C. 1611(c). 3943 U.S,C, 1608(g). Land selections under section 14(h)(8], 43 U.S.C. ’43 U.S.C. 1605(a). 1613(h)(8), will be allocated among all 12 resident 4143 U.S.C. 1605(c). Regional Corporations on the basis of population. 4243 U.S.C. 1606(d). “43 U.S,C, 1614. 4343 u,S,C. 1606(i). SSBY 1977, less than 5 million acres of Native selec- 4443 u.S.C. 1606(j). tions had been conveyed by the United States. See 4~See 43 u.S.C. 1606(i) and 1611. In the 95th Con- discussion of these delays in Statement of Asst. gress, hearings were held before the Indian Affairs Secretary Martin, supra, note 16. See also, Hearings on Subcommittee of the House Committee on interior and Alaska Natural Resource Issues Before the Senate Insular Affairs on H.R. 12529, a bill providing for an Comm. on Energy and Natural Resources, 95th Cong., equitable distribution of land to the 13th Regional Cor- 1st sess. (1977) and Lazarus and West, “The Alaska poration. Native Claims Settlement Act: A Flawed Victory,” 40 *43 U.S.C. 1611 (22 million acres to Native villages, Law & Contemp. Prob. 132 (1976]. 16 million acres to Regional Corporations); 43 U.S.C. 5643 U.S, C. 1610(a). 1613 (2 million acres): 43 U.S.C. 1615 (230,400 acres to 5743 U.S.C. 1615(a). Southeast Natives); 43 U.S.C. 1618 (4 million acres of 5s43 U.S. C. 1611. former Native Reserves]. In addition, some 800,000 SS43 U.S.C. 1610( a~2), The purpose of these with- acres will pass to individual Natives under applications drawals is explained in the ANCSA Conference Com- made under various Native allotment acts and ap- mittee Report: proved after Dec. 18, 1975. See 43 U.S.C. 1617. - Section 11 of the conference report withdraws tTEligibility qualifications for Native village selec lands around villages, including villages located tions are set forth in section n(b)(2) (43 U.S.C. on lands selected by or tentatively approved to the Ch. 5 Federal Laws Affecting Alaska Lands and Resources . 127

State. This section also provides for the with- by December 1975 (195,ooo acres actually ap- drawal of in lieu lands adjacent to the 25 township proved); area to insure that the land selection rights of Balance—to regions on population basis. Native Villages and Regional Corporation will be See Statement of Asst. Secy. Martin, supra note 16, at fully protected and will not be frustrated by com- 22. peting State selections or the creation of new in- 13T43 U,S.C. 1617(a). These Native allotments were au- terests in lands under the public land laws. thorized by the Alaska Native Land Allotment Act, Act S. Rept. 92-581, 92d Cong., 1st sess., reprinted in of May 7, 1906, c.2469, 34 Stat, 197, as amended by the Subcomm. on General Oversight and Alaska Lands of Act of August 2, 1956, c,891, 70 Stat. 954 (repealed by the House Comm. on Interior and Insular Affairs, 95th section 18(a) of ANCSA, 85 Stat. 710) and by the gener- Cong., 1st sess., Background Information for Alaska al allotment provisions of 25 U,S,C. 334 and 337. The Lands Designations (Comm. Print No. 4, 1977) at 72. Alaska Native Land Allotment Act provided for an 6043 U.S.C. 1610(a)(3). allotment of 160 acres of nonmineral land to Alaska 6143 U.S. C. 1610( a], 43 U,S. C. 1615( a]. These lands Natives meeting certain residency requirements. From and others were withdrawn under Public Land Orders passage of the Act to 1960, only 80 allotment patents— 5169 to 5188, 37 F.R. 5572-5591, Mar. 16, 1972. most of them in southeastern Alaska—were issued. Al- 6243 U.S,C. 1615, section 16(b), 43 U.S.C. 1615(b), au- lotment applications covering approximately 1.2 million thorizes selection of 23,040 acres by each of nine acres were pending on passage of ANCSA. Native villages listed in section 16(a), 43 U.S.C. 1615(a). ’843 U.S,C. 1617(b). The Native village of Klukwan is entitled to select “gBased on acreage figures supplied by the Depart- 23,040 acres by section 16(d), 43 U.S,C. 1615(d), as ment of the Interior to Richard W. Wright of the OTA amended by Public Law 94-456, section l(b), 90 Stat. Materials Program staff in July 1977. 1934, Oct. 4, 1976. The villages in southeast Alaska had 7043 U.S.C. 1618(b), already participated in a monetary judgment against 7}43 U.S.C. 1618(b). See Statement of Asst. Secy. Mar- the United States and therefore were given a smaller tin, supra, note 16 at 22. land settlement than other Native regions under 72 See 43 CFR 2651.4(f) (village selections); 43 CFR ANCSA. See 43 U.S.C. 1615(c). 2652.3(f) (Regional Corporation selections); and 43 CFR 6343 U.S.C. 1611(a) and (b). 2653.9(b) (section 14(h) selections). 6443 U.S.C. 161 l(c). 5 Approximate Entitlements & Overselections ‘ See 43 U.S.C. 1610(a)(2) and 43 U.S.C. 1o11. (in millions of acres) See Background Memorandum on section 17(d)(2) of the set. set. Alaska Native Claims Settlement Act to Members, Type entitlement selection Senate Comm. on Interior and Insular Affairs from Village first round (12(a) & 16(b), Steven P. Quarles, Counsel, Nov. 12, 1975 at 7 (herein- (includes southeast))...... 18-20 30 after “Memorandum”). Other State selections are pro- Village second round [12(b))...... 4-2 30 tected by the definition of “public lands” in section 3(e) Regional (12(c)). ... , ...... 16 35 Miscellaneous (14(h)) ...... 2 10 of ANCSA, 43 U.S.C. 1602(e): Former reserves (19(b)) ... , , . . . . . 4 4 “Public lands” means all Federal lands and in- Total ...... , ... , ...... 44 1 10* terests therein located in Alaska except: (1) the *Overlaps betwaen types of selections occurred. The total of 110 million acres is the estimated net area selected, smallest practicable tract, as determined by the SOURCE: Statement of Asst. Secy. Martin, supra, note 16 at 5. Secretary, enclosing land actually used in connection with the administration of any Federal in- 7343 U.S.C. 1621(h). stallations, and (2) land sections of the State of 7443 U.S.C. 1616(d)(l), See Public Land Orders 5169 Alaska which have been patented or tentatively to 5188, 37 F.R. 5572-5591, Mar. 16, 1972 and subse- approved under Sec. 6(g) of the Alaska Statehood quent amendments. Act, as amended (72 Stat. 341, 77 Stat. 223), or 75See, for example, the arrangements by Bristol Bay identified for selection by the State prior to Jan. Native Corporation, Arctic Slope Regional Corporation 17, 1969. and Chugach Natives, Inc. described in Morgan, supra, 8643 U.S.C. 1613(h). When the land selections regula- note 26. Doyon Ltd. is planning to exploit asbestos tions were developed in 1973, an allocation formula for deposits in the Yukon-Charley region. H.R. 39 as passed this 2 million acres was agreed upon between the De- by the House on May 19, 1978 included a special provi- partment and Native representatives. This allocation sion authorizing rights-of-way through the proposed (43 CFR 2653 .l(a)) provides the following: Forty Mile Wild and Scenic River area to accommodate 500,000 acres—25,000 acres to each region; Doyon’s mineral enterprise. See H.R. 39, section 501, 200,000 acres to regions on population percent- 95th Cong., 2d sess. (1978). ile, cemetary and historical sites, groups, and 7643 U.S.C, 1616(d)(2). individual Native residents; 771d. 92,160 acres—23,040 acres to each of the four ur- 7sId, ban corporations; ‘ePublic Land Order 5179, 37 F.R. 5579, Mar. 16, 400,000 acres—for Native allotments approved 1972, modified because of a consent agreement be- 128 ● Analysis of Laws Governing Access Across Federal Lands

tween Dept. of Interior and the State of Alaska. See ‘W43 U.S.C. 1616(b)(2). Public Land Orders 5250 through 5257, 37 F,R. 18730, 10’43 U.S.C. 1616(b)(3). Sept. 15, 1972, 37 F.R. 18911 to 18916, Sept. 16, 1972 1~43 U.S.C. 1616(c). The Secretary withdrew the and 37 F.R. 19370, Sept. 20, 1972. The text of the settle- pipeline right-of-way on Dec. 28, 1971, Public Land ment of State of Alaska et aL v. Morton is reprinted in Order No. 5150,36 F.R. 25410. the House Report on H.R. 39, H. Rept. 95-1045, pt. I, ‘“’ Order No. 2982, Reservation of Local Easements, 95th Cong., 2d sess., 403 (1978). 41 F.R, 6295, Feb. 12, 1976; Order No. 2987, Reserva- ’43 U.S.C. 1616(d)(2). tion of Easements for the Transportation of Energy, 81The Morton proposal was originally introduced in Fuel, and Nonfuel Resources, 41 F.R. 11331, Mar, 18, the 93d Congress as H.R. 12336 and S. 2917. It was 1976, # reintroduced in the 94th Congress as H.R. 6089 and S. lW41 F.R, 6295, Feb. 12, 1976. 1617, In the 95th Congress, the Morton proposal was in- IWId. troduced as H.R. 6564 and S. 499. ‘l”Order No. 2982, Sec. 4,41 F.R. 6295, Feb. 12, 1976. ez43 u.S.C, 1616(d)(2). 1]]Alaska Public Easement Defense Fund v, Andrus, Essee public Land order 5179 as modified, suPra! 435 F. Supp. 664 (D. Alas. 1977) reprinted in Hearings note 79. on Inclusion of Alaska Lands in National Park, Forest, 8443 u.S.C, 1616(d)(l). Wildlife Refuge, and Wild and Scenic Rivers Systems “Id. before the Subcomm. on General Oversight and Alaska ‘Id. Lands of the House Comm. on Interior and Insular Af- 8743 U.S.C. 1610( a~l). fairs, 95th Cong., 1st sess,, pt. XV, at 354 (Ser. No. %ee Public Land Orders, supra, note 79. 95-16, 1978), ‘eSee, for example, Public Land Orders 5185 and 1’241 F.R. 11331, Mar. 18, 1976. 5186, 37 F.R. 5588 to 5589, Mar. 16, 1972. 1130rder No. 2987, Sec. 4,41 F.R. 11332 (1976). ‘At the request of the State of Alaska, Public Land l]40rder No. 2987, Sec. 2,41 F,R. 11331 (1976). Order 5418, 39 F.R. 11547, Mar. 25, 1975 closed to fur- llsId, ther entry public lands that had been made available to “@Id. selection under Public Land Order 5185, 37 F.R. 5588, l’70rder No. 2987, Sec. 4,41 F.R. 11332 (1976). Mar, 16, 1972. 1 ]BId. gl~blic Law 94-579, 90 Stat. 2785, 43 U.S.C. 1782. ‘tgLawsuits were filed by the Alaska Federation of ‘2BLM Draft Proposed Wilderness Policy and Review Natives and six Native Regional Corporations and sepa- Procedure, Feb. 27, 1978, at p. 17. See also Office of the rately by Sealaska Corp. in the Federal District Court in Solicitor, Application of Mining and Grazing Laws to Washington, D.C. These cases were consolidated and Areas Under Review for Inclusion into Wilderness Sys- transferred to Federal Court in Alaska and there joined tem: Section 603, Federal Land Policy and Management with another case brought by the Alaska Public Ease- Act of 1976, Jan. 8, 1978 (Opinion), and the following ment Defense Fund which alleged that the Secretary Organic Act Directives: OAD 76-15, Dec. 14, 1976; OAD had failed to reserve sufficient public easements 77-21, Feb. 16, 1977; and OAD 77-29, Mar. 15, 1977. across Native lands. See 435 F. Supp 667, n. 1. 9343 u.S.C, 1616(a)(l). ‘20Alaska Public Easement Defense Fund v. Andrus, 9443 U.S.C. 1616( a~l)(A). 435 F. Supp 664, (D. Alas. 1977). “Id. ‘2’435 F. %Jpp. 677 to 679, “43 U.S.C. 1616(a~l)(B). ‘22435 F. Supp. 679 to 680. 7 ’ 43 U.S.C. 1616(a~2). ‘23435 F. fhq)p. 680 to 681, ‘eId. ‘24See hearings on Inclusion of Alaska Lands in Na- 9943 U.S.C. 1616( a~3). tional Park, Forest, Wildlife Refuge, and Wild and 1 OOS. Rept, 92-581, 92d Cong., 1st sess., reprinted in Scenic Rivers Systems Before the Subcomm. on General Subcomm. on General Oversight and Alaska Lands of Oversight and Alaska Lands of the House Comm, on In- the House Comm. on Interior and Insular Affairs, 95th terior and Insular Affairs, 95th Cong., 1st sess., pt. XV, Cong., 1st sess., Background Information for Alaska at 128 (Ser. 95-16, 1978). See also, the Secretarial Issue Lands Designations (Comm. Print No. 4, 1977) at 5. Papers on ANCSA Easement Policy and Procedures, Id. l“lpublic Law 94-204, section 7,89 Stat. 1149. at 504 to 540. 10243 U.S.C. 1616( a~7). ‘25 Secretarial Order 2987 was revoked by Secretarial ‘0343 U.S.C. 1616(b)(l). Order No, 3020,43 F.R. 19726, May 8, 1978. Ch. 5 Federal Laws Affecting Alaska Lands and Resources ● 129

In recent years, Congress has passed three in these areas must be conducted in a manner laws that establish special rules for the ac- to preserve significant subsistence, recrea- cess use of some Federal land involved in tional, fish and wildlife, and historic or scenic energy-related projects.1 One of these laws, values. 8 which changed the management of the Naval Petroleum Reserve No. 4 in Alaska, trans- Immediate responsibility for activities referred authority for making decisions on lated to the protection of the environment, right-of-way requests from the Secretary of 2 fish and wildlife, and historic or scenic values the Navy to the Secretary of the Interior. It of the lands involved was vested in the Secre- did not, however, effect any other change in tary of the Interior effective on enactment of the laws and regulations which control ac- the legislation.9 Other functions were trans- cess policies for that particular Federal in- ferred 1 year later so that Navy and Interior stallation. The other two laws, which estab- personnel could work together during a win- lished procedures for construction of the ter season to provide experience in manage- Alaskan oil and natural gas pipelines, made ment and ensure a smooth transfer.10 wholesale changes in the procedures that were used in granting rights-of-way for such projects. The Act provides that only exploration activities will be allowed on the reserve, and that no production or development leading to NAVAL PETROLEUM RESERVES production is authorized without congres- 11 PRODUCTION ACT OF 1976 sional review and authorization. Continued operation of South Barrow field for local use is permitted. The Act directs that three Four naval petroleum reserves on the pub- studies of the area be conducted.12 These in- lic lands were created by Presidential order 3 clude the study called for by section 164 of between 1912 and 1923. One of these, Naval the Energy Policy and Conservation Act13 and Petroleum Reserve Numbered 4 (NPR-4), was a Presidential study of the petroleum re- located in Alaska. Title I of the Naval Petro- source value of the area to determine the best leum Reserves Production Act of 1976 trans- overall plan for development, production, and ferred administration of the area in NPR-4 to transportation of petroleum resources in the the Secretary of the Interior and redesig- reserve. 14 The latter report is to be made to nated it as the National Petroleum Reserve in 4 Congress by January 1, 1980. Alaska (NPRA). A small tract on which the Naval Arctic Research Laboratory in Point Barrow is located and surface lands to be The third study is to be conducted by the transferred to Native villages under ANCSA Secretary of the Interior in consultation with are excluded from the reserve although they representatives of Federal agencies, the are located within its exterior boundaries.5 State of Alaska, and Native groups, to determine the values of and the best uses for lands Subject to existing rights, lands within the within the reserve. *5 The study is specifically boundaries of the reserve were withdrawn required to examine (1) the needs of the from all forms of entry and appropriation Natives who live or depend on lands in the under the public land laws, including the reserve, (2) scenic, historic, recreational, fish Mining Law of 1872 and the Mineral Leasing and wildlife, and wilderness values, (3) min- Act of 1920.6 Areas around the Utukok River eral potential, and (4) other values. ’b The and the Teshekpuk Lake regions were placed Secretary is to submit a report, including in a special protected category.7 Exploration recommendations for appropriate designa- Note: Footnotes for this section appear on pp. 134-136. tions of land, by April 1979. 130 ● Analysis of Laws Governing Access Across Federal Lands

Section 102 authorizes the Secretary to TRANS-ALASKA PIPELINE ACT “grant such rights-of-way, licenses, and permits as may be necessary to carry out his re- 17 In the winter of 1967-68, a wildcat rig drill- sponsibilities under this Act.” The same sec- ing Prudhoe Bay State Well No. 1 struck a for- tion also provides that, “All other provisions mation that proved to be the largest oil re- of law heretofore enacted and actions hereto- serve on the North American continent.21 The fore taken reserving such lands as a Naval discovery was announced on July 18, 1968.22 Petroleum Reserve shall remain in full force Fourteen months later, the State of Alaska and effect to the extent not inconsistent with 18 auctioned off leases on 450,000 acres of this Act.” These two provisions taken Prudhoe Bay for $900 million.23 together have the following effect: Right-of- way applications for access within the re- Even before the lease sales, the three oil serve must comply with the procedures estab- companies already holding producing leases lished under the general authority of the at Prudhoe Bay had organized the Trans- Secretary of the Interior;19 the substantive Alaska Pipeline System (TAPS) and filed an law that governs Secretarial decisionmaking application with the Department of the In- will include any standards controlling the terior to build an 800-mile hot-oil pipeline to general authority as construed in light of the Valdez. 24 TAPS sought a waiver from the Fed- Reserves Act and other laws that previously eral land freeze imposed because of the applied to NPR-4.20 Until such time as Con- Native claim controversy for the pipeline and gress acts on recommendations of the Secre- a 360-mile North Slope haul road.25 A waiver tary of the Interior for redesignation, access from the land freeze was approved in Decem- to non-Federal mineral resources will be a ber 1969, and in early 1970 the Department less favored use for lands in NPRA. of the Interior prepared to issue a permit for

Photo Credit: The Alaska Coa/lt/on The North Slope Haul Road, authorized by the Trans-Alaska Pipeline Act, provides the first surface access north of the Yukon River. Extending from Fairbanks to Prudhoe Bay, the road was transferred to State ownership in the fall of 1978 Ch. 5 Federal Laws Affecting Alaska Lands and Resources ● 131

the haul road when a series of lawsuits Department of the Interior to grant rights-of- 26 brought the project to a halt. way in excess of 50 feet where a wider right- of-way is found to be “necessary for opera- In March 1970, five Native villages along tion and maintenance after construction, or the proposed route filed suit claiming owner- 36 to protect the environment or public safety.” ship of the affected land by virtue of their aboriginal land rights.27 Shortly thereafter, three conservation groups filed suit contend- Other provisions of the amended section 28 also have a bearing on the use of Federal ing that the pipeline violated the 1920 Miner- al Leasing Act—under which rights-of-way lands for pipeline rights-of-way. Section 28 authorizes pipeline rights-of-way over all were being sought—and the newly passed National Environmental Policy Act (NEPA).28 Federal lands except national parks, lands held in trust for Indian tribes or an Indian, On April 13, 1970, a temporary injunction 37 and land on the Outer Continental Shelf. A was granted in the latter case, blocking the pipeline right-of-way may not be granted pipeline project and prohibiting the Secretary of the Interior from issuing a permit. 29 through any reserved Federal lands if the Secretary or the appropriate agency head In 1971, several actions were taken by Con- managing the land determines that it would gress and the executive branch to seek to be inconsistent with the purpose of the reser- break the impasse. Passage of the Alaska Na- vation. 38 The agency head may impose appro- tive Claims Settlement Act (ANCSA) ended priate regulations, terms, and conditions on the controversy over Native landownership.30 the right-of-way, including provisions for en- The Department of the Interior held lengthy vironmental protection and restoration, pub- hearings during 1971 on the environmental lic safety, protection of fish, wildlife, and 39 impact of the pipeline proposals and released habitat values, and subsistence resources. an environmental impact statement (EIS) on March 20, 1972. On August 15, 1972, the tem- Title I also requires that the applicant dem- porary injunction was dissolved after an onstrate the technical and financial capabil- opinion by the District Court that the require- ity to construct, operate, maintain, and termi- ments of NEPA had been met and that the De- nate the project in accordance with the stat- 40 partment of the Interior could issue a special utory conditions. Each right-of-way reserves use permit to allow the pipeline builders more to the Secretary or agency head the right to than the 50-foot right-of-way permitted by the grant additional rights-of-way for compatible 41 Mineral Leasing Act.31 uses on or adjacent to the pipeline. The Secretary was directed to prepare a report On February 9, 1973, the Court of Appeals on the need for a national system of trans- reversed this ruling and again enjoined the portation and utility corridors across Federal Secretary from issuing a right-of-way .32 It lands in order to minimize adverse environ- found that the Department of the Interior had mental impacts and to prevent the prolifer- exceeded its statutory authority in proposing 42 ation of rights-of-way across Federal lands. to grant the special right-of-way and land use This report was presented to the President permits. Two months later, the Supreme 33 and Congress. Court refused to review this decision. This chain of events provided the impetus Title II of Public Law 93-153 is the Trans- 43 for the passage, on November 16, 1973, of Alaska Pipeline Authorization Act. It man- Public Law 93-153 generally known as the dated expedited administrative action on the Trans-Alaska Pipeline Act,34 Title 1 of Public TAPS project. The Act provided that no fur- Law 93-153 amended section 28 of the Min- ther NEPA review was to be undertaken and eral Leasing Act, which provides rights-of- contained a legislative finding of sufficiency way across Federal lands for oil pipelines.35 of the final EIS issued by the Department of 44 The most important amendment allows the the Interior on March 20, 1972. 132 ● Analysis of Laws Governing Access Across Federal Lands

Furthermore, it limited administrative and commenced. TAPS began operation in the judicial review of any certificates, rights-of- summer of 1977. way, permits, and licenses related to or necessary to the construction, operation, and maintenance of TAPS including roads and ALASKA NATURAL GAS airstrips.45 Executive agencies and depart- TRANSPORTATION ACT OF 1976 ments were ordered to issue necessary permits. Judicial review was limited in scope and The Prudhoe Bay oilfield contains over 20 the time for filing claims was limited to 60 trillion cubic feet of natural gas, approx- days from any contested action; this meant imately 10 percent of the known gas reserves that opportunities for redress, review, or in the United States. It is also in close prox- relief in Federal or State courts were cut off. imity to similar large gas deposits in the In exchange for this limitation on judicial and Mackenzie Delta region of Canada. In March administrative remedies, strict liability was 1974, the Arctic Gas consortium filed appli- imposed for incidents harming wildlife and cations with the Federal Power Commission subsistence resources and for spillage in- (FPC) and the Canadian National Energy cidents.46 Strict liability for harm to wildlife Board to construct a pipeline to move and subsistence was limited to $50 million Alaskan and Canadian gas to the United per incident and liability for oilspills was States and Canada by an overland route.52 In limited to $100 million.47 Damages from con- September 1974, El Paso Alaska Company struction, operation, and maintenance, etc., filed an application with the FPC to transport greater than $50 million are to be decided ac- Prudhoe Bay gas by a pipeline adjacent to cording to the laws of negligence. Claims TAPS to the Gulf of Alaska, liquefy it, and greater than $100 million for spillage are to ship it to California by LNG tanker.53 A hear- be decided in judicial proceedings or by ar- ing began on the competing applications bitration. A TAPS liability fund was estab- before the FPC on April 7, 1975. In July 1976, lished to pay damages from oilspills. This was a third application was filed by Alcan Pipe- to be funded by $0.05 per barrel paid by the line Company for an Alaska-Canada overland owner of the oil transported.48 route.54 The Act further provided that the roads Faced with the prospect of long adminis- and airstrips constructed for the project trative and judicial proceedings (the FPC could be public roads or airstrips.49 The con- hearings consisted of 45,000 pages and over tractor has arranged to turn over the pipeline 1,000 exhibits), and a protracted process of haul road to the State of Alaska. It is antic- accumulating lands for the right-of-way of the ipated that it will eventually be open to the approved pipeline, Congress acted in 1976. public. If the State fails to operate the haul The Alaska Natural Gas Transportation Act road as a public road, it may be required to of 1976 (ANGTA) established an expedited procedure for selecting a transportation sys- pay back Federal funds received for bridge tem and facilitating its construction and ini- and road construction in anticipation of even- 55 50 tial operation. tual public highway designation. The steps called for by the Act in selecting Section 407 of the Act authorized advance a pipeline applicant have been completed. payments of royalties due Alaska Natives The Act suspended the proceedings before under the terms of ANCSA.51 These advance the FPC and took the authority to make a deci- payments were provided in recognition of the sion away from that agency.56 Instead, the delays in construction of the oil pipeline to FPC was directed to review the applications transport North Slope crude oil. Advance and make a recommendation to the President payments will continue until such time as by May 1, 1977.57 This the Commission did, delivery of North Slope oil to a pipeline is and recommended the Canadian overland Ch. 5 Federal Laws Affecting Alaska Lands and Resources ● 133

route, although it divided 2-2 on the choice be- later than 60 days after the complaining par- tween Alcan and Arctic Gas.58 The Commis- ty has actual or constructive knowledge of sion also prepared an EIS to accompany the the action.68 All claims brought under the Act recommendation. must be filed in the U.S. Court of Appeals for the District of Columbia, which is directed to The President was required to review the 69 FPC recommendation and issue a decision expedite review of any claims. No court has jurisdiction to consider questions relating to and report to Congress prior to September 1, 70 1977 or within 90 calendar days if additional the environmental impact statements. time was needed.59 Before that decision was The Act directs Federal officers and agen- issued, the Council on Environmental Quality cies to grant or issue certificates, rights-of- was directed to hold hearings on the EIS pre- way, leases, and permits necessary to or re- pared by the FPC and transmit a report to the lated to the construction or initial operation President on the legal and factual sufficiency of the system at the earliest possible date and of the statement.6O The Presidential decision to the fullest extent permitted by the laws ad- could recommend waivers of provisions of ministered by the agency71 (without regard to existing laws to permit expeditious construc- any provisions of law that were waived) .72 All tion and operation of the system.61 actions to which this directive applies are to be expedited and shall take precedence over The President issued a decision on Septem- 73 ber 22, 1977, selecting the Alcan proposal.62 similar applications and requests. The Presidential decision could only take ef- The Act places some limitations on the con- fect if approved by a joint resolution of both ditions that may be included in certificates, Houses of Congress passed within 60 days of rights-of-way, leases, and permits.74 Officers receipt of the decision.63 In addition to affirm- and agencies granting such rights shall in- ing the Presidential decision including any clude terms and conditions required by the waivers of law, the joint resolution pre- laws they administer (to the extent that such scribed in the Act contains a congressional laws have not been waived), and shall also in- declaration of the sufficiency of the EIS sub- clude provisions identified in the President’s mitted by the President.64 The joint resolution decision as appropriate for inclusion.75 With was approved on November 8, 1977.65 respect to conditions or terms that are permitted by law, but not required, they may be The Act contains limitations on judicial included unless they “would compel a change and administrative review similar to those in the basic nature and general route of the found in the Trans-Alaska Pipeline Author- approved transportation system, or would ization Act. Claims alleging the invalidity of otherwise prevent or impair in any significant the Act must be filed within 60 days of the 66 respect the expeditious construction and ini- enactment of the joint resolution. Judicial 76 review of the actions of Federal officers and tial operation” of the system. agencies may be had only under the provi- Finally, the Act provides that any pipeline sions of section 10 of the Act.67 Claims alleg- system right-of-way over Federal lands is to ing that an action taken pursuant to authority be issued under the authority of the Mineral granted in the Act violated constitutional Leasing Act of 1920 as amended. Thus all rights or were in excess of statutory jurisdic- Federal rights-of-way will include a provision tion, authority, or limitations, or did not that the managing agency may allow use of satisfy statutory rights must be brought the right-of-way by additional compatible within 60 days of the challenged action or no users.77

4!-1- flfl.4 ( ) . 7[] . 10 134 ● Analysis of Laws Governing Access Across Federal Lands

FOOTNOTE REFERENCES FOR OTHER LAWS

‘Naval Petroleum Reserves Production Act of 1976, Wublic Law 94-258, section 105(c), 90 Stat. 306, 42 Public Law 94-258,90 Stat. 303, Apr. 5, 1976,42 U.S.C. U.S.C. 6505: “(l) The Secretary of the Interior shall 6501 et seq.; The Trans-Alaska Pipeline Act, Public establish a task force to conduct a study to determine Law 93-153, 87 Stat. 584, Nov. 16, 1973; The Alaska the values of, and best uses for, the lands contained in Natural Gas Transportation Act of 1976, Public Law the reserve, taking into consideration (A) the natives 94-586, 90 stat. 2903, C)ct. 22, 1976, 15 U.S.C. 719 et who live or depend upon such lands, (B) the scenic, seq. historical, recreational, fish and wildlife, and wilder- ‘Naval Petroleum Reserves Production Act of 1976, ness values, (C) mineral potential, and (D) other values Public Law 94-258,90 Stat. 303, Apr. 5, 1976,42 U.S.C. of such lands. (z) Such task force shall be composed of 6501 et seq. representatives from the government of Alaska, the 3The reserves are: Naval Petroleum Reserve No. 1 Arctic Slope Native community, and such offices and (Elk Hills) located in Kern County, Calif., established by bureaus of the Department of the Interior as the Executive Order, Sept. 2, 1912; Naval Petroleum Re- Secretary of the Interior deems appropriate, including, serve No, 2 (Buena Vista) located in Kern County, Calif., but not limited to, the Bureau of Land Management, the established by Executive Order, Apr. 30, 1915; Naval United States Fish and Wildlife Service, the United Reserve No, 3 (Teapot Dome) located in Wyoming, States Geological Survey, and the Bureau of Mines. (3) established by Executive Order, Apr. 30, 1915; and The Secretary of the Interior shall submit a report, Naval Petroleum Reserve No, 4, located in Alaska, together with the concurring or dissenting views, if established by Executive Order, Jan. 27, 1923. any, of any non-Federal representatives of the task 442 U.S.C. 6502 (redesignation); 42 U.S. C. 6503 force, of the results of such study to the Committees on (transfer of jurisdiction). Interior and Insular Affairs of the Senate and House of 542 U.S.C. 6502. The tract on which the Naval Arctic Representatives within 3 years after the date of enact- Research Laboratory is located is tract No. 1 as ment of this title and shall include in such report his described in Public Land Order 2344, Apr. 24, 1961, 26 recommendations with respect to the value, best use, F.R, 3701. and appropriate designation of the lands referred to in “42 U.S.C. 6502. paragraph (l), ” 742 U.S.C. 6504(b). 1742 U.S.C. 6502. 842 U.S.C. 6504(b). “Any exploration within the 1aId, Utokok River, the Teshekpuk Lake areas, and other ‘gSee 43 CFR 2361.2 (1977), See also 43 CFR 2800. areas designated by the Secretary of the Interior con- 2043 U.S.C, 1601, taining any significant subsistence, recreational, fish ‘lExecutive Office of the President, Energy Policy and and wildlife, or historical or scenic value shall be con- Planning, Decision and Report to the Congress on the ducted in a manner which will assure the maximum Alaska Natural Gas Transportation System, Sept. 22, protection of such surface values to the extent consist- 1977 (hereinafter “Decision”), pi. ent with the requirements of this Act for the explora- ZZHanrahan and Gruenstein, Lost Frontier: the ~Qr- tion of the reserve. ” keting of AJaska, 125 (1977). ’42 U.S. C. 6503(b). Z’Id. ‘OS. Rept. 94-708 (Conference Report) at p. 15, The zqThe three companies were the Atlantic Richfield Secretary of the Interior has assigned interim manage- Company, Humble Oil and Refining Company (now ment responsibility for NPRA to the Assistant Sec- EXXON Corporation), and British Petroleum Ltd. They retary for Land and Water Resources. Statement of filed an application with the Department of the Interior Hon. James Joseph, Undersecretary of the Interior in on June 6, 1969. After the lease sale, the following com- Hearings on Alaska Natural Resource Issues Before the panies became partners in TAPS: Standard Oil of Ohio, Senate Comm. on Energy and Natural Resources, 95th Phillips Petroleum, Union Oil and Amerada Hess. TAPS Cong., 1st sess. (Pub. No. 95-64, 1977) at 102 (here- formally incorporated as the Alyeska Pipeline Service inafter, Alaska Natural Resource Issues), Regulations Company, Inc. governing NPRA are found at 43 C.F.R. 2360 (1977) and Zssee generally, Mary Clay Berry, The Alaska ~“pe- 42 F,R, 28721, June 3, 1977, line; The Politics of Oil and Native Land Claims, 102 to 1142 U.S. C. 6504(a). Provision for the continued 123 (1975). The land freeze was imposed in 1966 by operation of the South Barrow gasfield is at 42 U.S.C. Secretary of the Interior Stewart Udall and formalized 6504(e). by Public Land Order 4582, 34 F.R. 1025, Jan, 17, 1969, ‘zPublic Law 94-258, section 105, 90 Stat. 305, 42 The new Secretary of the Interior, Walter Hickel, U.S.C. 6505, agreed to honor the freeze for 2 years in order to allow ’342 U.S.C. 6244. congressional action on the Native claims issue. 1442 U.S.C. 6505. However, under pressure from the oil companies and I’Id. the State of Alaska, Secretary Hickel set up a task force Ch. 5 Federal Laws Affecting Alaska Lands and Resources ● 135

to expedite planning and approval of the TAPS request 4030 U.S.C. 185(j), as amended, 87 Stat. 579 (1973). and successfully negotiated with House and Senate 4’30 U.S.C, 185(P), as amended, 87 Stat. 580 (1973). Committees to obtain their consent to the TAPS waiver. 4230 U.S.C. 185(s), as amended, 87 Stat. 582 (1973). ‘fiSee Public Land Order 4760, 35 F.R. 424, Jan, 7, The report called for by this section was submitted to 1970. See also Berry, supra, note 25 at 116 to 118. the Congress on July 1, 1975. Department of the Interi- 27These villages are Stevens, Rampart, Bettles, Min- or, Bureau of Land Management, The Need for a Na- to, and Huslia-Hughes. The village chiefs had earlier tional System of Transportation and Utility Corridors. negotiated with the pipeline consortium for a waiver of 43Section 201, Public Law 93-153.87 Stat. 584 (1973). Native objections to the pipeline route based on land 4443 u.S, C, 1652(d). claims in exchange for an understanding by TAPS to ‘sId. contract with Native-owned firms and firms willing to 4’43 U.S,C, 1653(a)(l) establishes strict liability for in- employ Natives. When TAPS announced some of its cidents involving the pipeline. 43 U.S.C. 1653(c)(1) es- contract awards in January 1970 that did not include tablishes strict liability for oilspills from vessels loaded Native firms, the Natives sued. See Bryan Cooper, with oil transported through the pipeline. 43 U.S.C. Alaska-The Last Frontier, at 203 to 205 (1973). See 1653(c)(2) imposes strict liability for oil pipeline in- also Berry, supra note 25 at 116-120. The five villages cidents. brought suit in Federal District Court in Washington, 47 See 43 U.S.C. 1653(a)(2) and 43 U.S.C. 1653(c)(2). D. C,, to enjoin the Department of the Interior from ap- ’43 U.S. C. 1653(c)(4) establishes the fund; 43 U.S. C. proving the pipeline right-of-way. Four of the five ac- 1653(c)(5) levies the 5 cents per barrel tax. tions were dismissed. But in March 1970, a restraining 4’43 U.S,C. 1655. order was issued on behalf of Stevens Village tempo- sOThe State of Alaska received Federal aid for the rarily barring the issuance of a right-of-way for 20 construction of the haul road with the understanding miles covered by village claims located near the that the road would become part of the State highway planned Yukon River pipeline crossing. In Native system. If the haul road is not opened to public use, Village of Allakaket v. I-Iicke], Civ. No. 706-70 (D. D. C., Alaska might have to repay some $24 million for con- Oct. 18, 1972), the District Court enjoined construction struction of the Yukon River bridge, $1.5 million for of the pipeline across Native lands. construction surveillance, and $2.8 million worth of 28 Wilderness Society v. Hicke], Civ. A. No. 928-70; gravel from Federal lands. Gov. Jay S. Hammond, North The plaintiffs were the Wilderness Society, the En- Slope Haul Road Policy Statement and Background, vironmental Defense Fund, and Friends of the Earth. September 1976. ‘gWi]derness Society v. Hicke], 325 F. SUPP. 422 51 Section 407, Public Law 93-153, 87 Stat. 591, 43 1608. (D.D.C.3 1970). U.s.c. 0ANSCA extinguished all Native land claims based 52FPC Docket No. CP 74-239. upon aboriginal title or use, 43 U.S. C. 1703, and pro- NFpC Docket No. CP 75-96. vided that there could be no State or Native land selec- 54The Alcan application was filed after FPC ad- tions along any utility and transportation corridor ministrative proceedings had commenced on the other withdrawn for the pipeline, 43 U.S.C. 1716(c). two applications in FPC Docket No. 75-96 et al. The slwi]derness society v, Morton, 3 ELR 20583, 4 ERC decision by Administrative Law Judge Nahum Litt was 1101. In order to expedite appeals, there was never a issued on Feb. 1, 1977. reported decision accompanying the order lifting the in- Sspublic Law 94-586, 90 Stat. 2903, Oct. 22, 1976, 15 junction. U.S,C. 719 et seq. 32 Wilderness Society v. Morton, 479 F. 2d 842 (D.C. 5615 U.S. C, 719C(all). Cir. 1973). 5715 U.SOC. 719c(b)(l). 33411 Us. 917 (1973). 58 Federal Power Commission, Recommendation to the sqAn Act t. Amend Sec. 28 of the Mineral Leasing Act President: Alaska Natural Gas Transportation System, of 1920 and to Authorize a Trans-Alaska Oil Pipeline May 2, 1977. and for other purposes, Public Law 93-153, 87 Stat. 5915 U.S.C. 719e(a). 80 576, NOV. 16, 1973. 15 U.S.C. 719d(d). Council on Environmental Quali- s~~blic Law 93-153, section 101, 87 Stat. 576, 30 ty, Report, July 1, 1977. Another report was prepared U.S.C. 185. Section 28(d) of the Mineral Leasing Act of by an Interagency Task Force under the lead of the 1920, 30 U.S.C. 185(d), as amended by Public Law Department of the Interior. 93-153, section 101,87 Stat. 576. C115 U.S.C. 719e(ax4)(D). 3%ection 28(d) of the Mineral Leasing Act of 1920, 30 ‘executive Office of the President, Energy Policy and U.S.C, 185(d), as amended by Public Law 93-153, sec- Planning. Decision and Report to Congress on the tion 101,87 Stat. 577 (1973]. Alaska Natural Gas Transportation System, Sept. 22, 3730 U.S.C. 185(a), as amended by Public Law 93-153, 1977. section 101, 87 Stat. 576 (1973). See also 30 U.S.C. ’315 U.S.C. 719 f(a). 185(b)(l), as amended, 87 Stat. 577 (1973). “15 U.S.C. 719 f(d)(2). 3a30 U,S.C. 185(b)(l), as amended, 87 Stat. 577 (1973). ‘5 Public Law 95-158, Nov. 8, 1977. For background on Sg30 U.soc. 185(h)(2), as amended, 87 Stat. 578 (1973)+ the Alaska National Gas Pipeline decision, see S. Rept. 136 ● Analysis of Laws Governing Access Across Federal Lands

95-567, 95th Cong., 1st sess. (1977). Many of the reports 6915 U,S.C. 719h(c)(l). called for in Public Law 94-586 are reprinted in Senate 7015 U.S.C. 719h(c)(3). Comm. on Energy and Natural Resources, Decision and 7115 U.S.C. 719g(aXl). Report to Congress on the Alaska Natural Gas 7215 U.S.C. 719g(a~2). Transportation System, 95th Cong., 1st sess. (Comm. 7315 U.S.C. 719g(b)e Print 95-56, 1977). 7’15 U.s.c, 719g(c). ’815 U,S.C. 719h(b)(l). ’515 U.S.C. 719g(c), 15 U.S. C. 71%Ke). 6715 U.S. C. 719h(a). 7’15 U.S,C. 719g(c), 15 U,S.C, 719g(d). ’815 U.S,C. 719h(b)(2), 7730 U.S.C. 185(p). 6 Federal Land Planning and Environmental Laws —

Chapter 6.- FEDERAL LAND PLANNING AND ENVIRONMENTAL LAWS

Page Page National Environmental Policy Act Effluent Limitations...... 188 of 1969• . ● . ● ● . ● ● , ● . . ● . ● ● ● . .. .139 Municipal Point Sources ...... 191 Broad Policy Goals of NEPA ...... 139 Footnote References for Clean Water Mandatory Agency Action ...... 140 Act ● 195 The Council on Environmental Coastal Zone Management Act...... 198 Quality...... 141 The Coastal Zone ...... 198 When an EIS Is Required...... 141 Statutory Requirements for the Plan 199 When an EIS Must Be Prepared . . . 142 Developing the Plan...... 200 Public Participation...... 144 Approving the Plan ...... , 202 NEPA and Judicial Review...... 145 Federal-State Relationships Under Footnote References for National CZMA . *.,**,,**,....,...*** 203 Environmental Policy Act of 1969. . 150 National Interest Considerations . . 205 Section 4(f) of the Department of Overview: Mineral Access and Transportation Act of 1966...... 153 Coastal Zone Management . . . . . 205 Transportation Projects Covered by Footnote References for Coastal Zone Section...... 154 Management Act ● ● ● ● ● ● ● ● ● s ● ● ● ● ● 206 Protected Lands...... , . . 155 Overton Park...... 156 The 4(f) Statement...... , . 157 TABLES Footnote References for Section 4(f) . 159 Endangered Species Act of 1973 . . . . 160 Page Endangered Species ...... 160 5. Time Required for Draft EIS Prohibited Acts ...... 160 Preparation, Fiscal Year 1975 . . . . 148 Footnote References for Endangered 6. National Environmental Policy Act Species Act of 1973 ...... 163 Litigation ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● s ● ● ● ● 148 Clean Air Act...... 165 7. Injunctive Delays of Federal Implementation of the Clean Air Act Actions Under the National Envi- and the 1977 Amendments . . . . . 166 ronmental Policy Act (NEPA)...... 149 Regulation Under the Clean Air Act 167 8. Projects Canceled as a Result of National Air Quality Standards . . . 168 National Environmental Policy Act State Implementation Plans ...... 169 (NEPA) Injunctions...... 149 Preconstruction Review of Major New Stationary Sources ...... 170 Prevention of Significant FIGURES Deterioration ...... 173 Duties of the Federal Land Page Manager...... 176 6. Time Required to Get Environ- Footnote References for Clean Air mental Permits if Proponent Owns Act ● *s** . *********s********** 177 the Site and No Federal Rights-of- Glean Water Act ...... 182 Way Are Involved ● ● ● ● ● ● ● ● ● ● ● . ● 147 Federal Water Pollution Control 7. Time Required to Get Environ- Act ...... 182 mental Permits if Federal Lands

Permit System ... , ...... 184 Are Involved ● ● ● ● ● ● ● ● ● ● ● ● ● ● , ● , ● ● 147 6 Federal Land Planning and Environmental Laws

NATIONAL ENVIRONMENTAL POLICY ACT OF 1969 The passage of the National Environmental sponsibilities. The agencies have developed Policy Act of 19691 (NEPA) marked the begin- administrative procedures for the considera- ning of a new era of increased Federal con- tion of applications for rights-of-way and cern for environmental quality. The Act set other permits for the use of Federal lands forth general Federal environmental policy that involve a thorough environmental impact goals, made environmental quality the con- review process. Land management agency cern of all Federal agencies, and by insti- regulations provide that applicants for rights- tuting certain “action-forcing mechanisms, ” of-way and other permits may be required to fundamentally altered the Federal decision- pay the costs of preparing an EIS.4 making process. The most important action- There are three major components to the forcing mechanism is the requirement that an Act: the declaration of broad national policy environmental impact statement (EIS) be pre- goals; the enumeration of specific actions to “major Federal actions signifi- pared for be implemented by Federal agencies; and the cantly affecting the quality of the human environment. establishment of the Council on Environmen- tal Quality (CEQ) in the Executive Office of Unlike environmental laws such as the the President, to coordinate agency imple- Clean Air Act, NEPA does not establish any mentations and to formulate and recommend specific Federal environmental standards.3 It national environmental policy. does require Federal departments and agencies in implementing their policies and programs to use all practical means to improve BROAD POLICY GOALS OF NEPA and coordinate agency plans, functions, programs, and resources in order to protect and Section 101(a) of NEPA provides “that it is preserve the environment. While NEPA im- the continuing policy of the Federal Govern- poses no direct specific restraints on access ment, in cooperation with State and local gov- to non-Federal minerals, it nevertheless has a ernments, and other concerned public and substantial indirect influence, since Federal private organizations . . . to create and main- land management agencies must comply with tain conditions under which man and nature NEPA in the administration of all program re- can exist in productive harmony, and fulfill the social, economic, and other requirements Note: Footnotes for this section appear on pp. 150-152. of present and future generations of Amer-

139 140 ● Analysis of Laws Governing Access Across Federal Lands icans.” 5 This broad policy is to be carried out assures consideration of environmental val- as “the continuing responsibility of the ues 10in their policy planning and decisionmak- Federal Government” through means “con- ing. The EIS was established as part of the sistent with other essential consideration of basic decisionmaking apparatus of the Fed- national policy.”6 This policy was further eral departments and agencies. While accom- modified by the express statement that the plishment of the broad environmental policies “goals and policies” set forth in NEPA “are and goals proclaimed in NEPA is secondary to supplementary to those set forth in existing other agency program authorities and re- authorizations of Federal agencies.”7 Within sponsibilities, the requirements of the EIS these constraints, agencies are to use all process are direct and mandatory. practicable means so that the Nation can:8 All Federal agencies in the conduct of their 1. Fulfill the responsibilities of each gener- functions, programs, planning, and policies ation as trustee of the environment for are required by NEPA to: succeeding generations; 2, Assure for all Americans safe, healthful, a. Utilize a “systematic interdisciplinary productive, and esthetically and cultur- approach” integrating natural and so- ally pleasing surroundings; cial sciences and environmental design arts in planning and decisionmaking.11 3. Attain the widest range of beneficial uses of the environment without degra- b. Develop means of ensuring that pres- dation, risk to health or safety, or other ently unquantified environmental undesirable and unintended conse- amenities and values will be given ap- quences; propriate consideration in decisionmaking along with economic and tech- 4. Preserve important historic, cultural, nical considerations. 12 and natural aspects of our national heritage, and maintain, wherever possible, c. Include a detailed EIS in “every recom- an environment which supports diver- mendation or report on proposals for sity and variety of individual choice; legislation and other major Federal actions significantly affecting the quality 5. Achieve a balance between population of the human environment. ” When pre- and resource use which will permit high paring an EIS, the responsible agency standards of living and a wide sharing of must consult with other Federal agen- life’s amenities; and cies and solicit and include views of 6. Enhance the quality of renewable re- those agencies as well as State and sources and approach the maximum at- local agencies, The statement must be tainable recycling of depletable re- made available to the President, to sources. CEQ, and to the public and it must accompany the proposal through the existing agency review process .13 MANDATORY AGENCY ACTION d. Study and describe “appropriate alter- To further the broad environmental policy natives to recommended courses of ac- established in NEPA, Congress directed that, tion” for any proposal that involves unresolved conflicts concerning alter- “to the fullest extent possible the policies, 14 regulations, and public laws of the United native uses of available resources. States shall be interpreted and administered e. Lend support to programs designed to in accordance with the policies set forth in maximize international cooperation in this Act.”9 Congress also mandated that all anticipating and preventing a decline Federal agencies utilize a review process that in the quality of mankinds’ world en- Ch. 6 Federal Land Planning and Environmental Laws ● 141

vironment, where consistent with U.S. fice of Environmental Quality in the Executive foreign policy .15 Office of the President was established by the 20 f. Make available to State and local Environmental Quality Act of 1970 to pro- governments and the public, informa- vide professional and administrative support tion and advice useful in restoring, for the CEQ. maintaining, and enhancing environ- Under an executive order,21 the President mental quality .16 has assigned CEQ the responsibility to issue Initiate and utilize ecological informa- guidelines for the preparation of environmen- g. tal statements required by section 102(2)(c) of tion in planning and developing re- 22 source-oriented projects .17 NEPA. h. Assist CEQ.18 These CEQ guidelines are implemented by the specific guidelines and regulations per- NEPA requires Federal agencies to containing to compliance with NEPA that have sider environmental factors, along with tradi- been adopted by individual Federal agencies. tional technical and economic factors, in the The courts have held that “because CEQ does planning process. Case-by-case analysis of not have the statutory authority to prescribe proposed agency actions ensures that en- regulations governing compliance with vironmental consequences are considered NEPA, CEQ guidelines are merely advi- before action is taken. sory.”23 The standard for judicial review of The action-forcing mechanisms impose whether agency actions satisfy NEPA re- operational duties that compel agencies to quirements is whether the actions comply consider and implement the general purposes with the agency’s own regulations and the re- of the Act. By requiring that agencies pre- quirements of section 102(2)(c). pare a detailed environmental statement, conduct systematic and interdisciplinary re- WHEN AN EIS IS REQUIRED view, and consult with other agencies and seek public comment on proposed actions, The preparation of an EIS is only required these action-forcing mechanisms have for a Federal action that the agency deter- changed the charnels and processes of ad- mines is “a major Federal action significantly ministrative planning, decision, and review. affecting the human environment.”24 The They open the decisionmaking process to the identification of major actions that signif- full spectrum of agencies and individuals that icantly affect the quality of the human envi- might be affected by the proposed actions. ronment is the responsibility of each Federal Public participation ensures that all issues agency and is to be carried out against the and competing considerations are aired and background of its own particular operations. balanced. NEPA requires a case-by-case determination of whether a given agency action requires preparation of an EIS. The initial in- THE COUNCIL ON quiry must ascertain whether the proposed ENVIRONMENTAL QUALITY action is a “major Federal action significantly affecting the human environment. ” If so, The Council on Environmental Quality was the impact assessment process is begun. This established within the Executive Office of the involves consideration of the environmental President by Title II of NEPA.19 The CEQ is consequences of the proposed action. The composed of three members appointed by the words “major” and “significantly” are in- President with Senate approval. It serves as a tended to imply a degree of importance and resource, research, and advisory body to the impact that must be met before a statement is President on environmental matters. The Of- required .25 —

142 ● Analysis of Laws Governing Access Across Federal Lands

“Major Federal actions” include not only tail the range of its beneficial uses, and serve actions directly undertaken by Federal agen- short-term environmental goals to the disad- cies, but also Federal decisions to approve, vantage of long-term ones.29 fund, or license activities that will be carried out by others. CEQ guidelines provide that There has been extensive litigation on the Federal “actions” include but are not limited question of whether particular actions are to: major actions that significantly affect the human environment. It is difficult to specify 1. Recommendations or reports relating to which actions will invoke the application of or leading to legislation and appropria- NEPA. The courts have generally interpreted tions; the term “major action,” liberally .30 2. Projects and continuing activities As originally written, NEPA applied to all —Directly undertaken by Federal agen- Federal agencies. However, Congress and the cies; or courts have established a number of excep- —Supported in whole or in part through tions to this mandate. Congress has exempted Federal contracts, grants, subsidies, the Environmental Protection Agency (EPA) from the requirements of NEPA when it is loans, or other forms of funding assist- 31 ance; or taking action under the Clean Air Act, and —Involving a Federal lease, permit, li- when it is issuing pollution discharge permits cense, certificate, or other entitlement (except those for new sources) under the for use; and Federal Water Pollution Control Act Amend- ments of 1972.32 The courts have ruled that 3. The making, modification, or establish- EPA was not required to prepare a NEPA ment of regulations, rules, procedure, 26 statement for an action under the Federal In- and policy . secticide, Fungicide, and Rodenticide Act33 There must be sufficient Federal control where the procedures the agency followed were the functional equivalent of the NEPA and responsibility over the action that causes 34 the impact for it to constitute a Federal ac- process. EPA has generally contended that tion. Such Federal control and responsibility it is exempt from NEPA on the grounds that are not present in cases such as the distribu- the Act is aimed at development agencies and tion of general revenue-sharing funds to not at environmental protection agencies .35 States and localities.27 In determining whether or not an EIS is required, CEQ guidelines WHEN AN EIS MUST BE PREPARED direct agencies to view the cumulative impacts of the proposed action and of further actions contemplated. The guidelines advise The courts have frequently addressed the that an EIS be prepared in all instances question of when, during the decisionmaking where a “cumulatively significant” impact on process, an EIS must be prepared. The deci- the environment may reasonably be expected sions have generally held that the EIS must be prepared at the earliest practical point in from the Federal action, or where the pro- 36 posed action is expected to generate “highly time. One court stated that, ideally, an EIS controversial” environmental impacts.28 should be prepared late enough in the development process to contain meaningful infor- Finally, the action must be one that signif- mation, but early enough so that this infor- icantly affects the quality of the human en- mation can practically serve as an input in vironment either by directly affecting human the decisionmaking process.37 Early prepara- beings or by indirectly affecting them through tion is deemed essential to assure that the adverse effects on the environment. Such comprehensive review and objective analysis adverse significant effects include those that intended by the Act will be responsibly car- degrade the quality of the environment, cur- ried out. If preparation of the EIS were al- Ch. 6 Federal Land Planning and Environmental Laws ● 143 lowed to take place after planning was well 1. The proposed action, its purposes, and a underway, desirable alternatives might al- description of the affected environment; ready be foreclosed, a fully objective analysis 2. The probable environmental impacts of would not be possible, and opportunities to the proposed action including positive make alterations that minimize environmen- and negative, primary and secondary, tal costs would be lost. and direct and indirect consequences of The draft EIS is the vehicle by which the re- the action; quirement for early public notice is met. The 3. Any probable unavoidable adverse en- CEQ guidelines state the necessity for the vironmental effects from the implemen- earliest possible preparation: tation of the proposal; Agencies should keep in mind that such 4. Possible alternatives to the proposed ac- statements are to serve as the means of tion, including the abandonment or post- assessing the environmental impact of proposed agency action, rather than as a justi- ponement of the proposal, as well as any fication for decisions already made. This possible alternatives that may be within means that draft statements on administra- the jurisdiction of another agency; and tive actions should be prepared and cir- an evaluation of the benefits and en- culated for comment prior to the first sig- vironmental impacts of each alternative; nificant point of decision in the agency 38 5. The relationship between local short- review process. term uses of the environment and en- But preparation of the draft is not the first hancement of long-term productivity in- step in the environmental review process. cluding an analysis of any tradeoffs and Under the present system, an agency first losses associated with the proposed ac- makes an assessment of a proposed action to tion, and also the extent to which further determine whether or not an EIS is required. alternative uses may be foreclosed. If an agency decides that an EIS is required, (Both short- and long-term uses must be it often publishes a notice of its intent to considered in assessing the environmen- prepare one in the Federal Register. If more tally significant consequences of a pro- than one agency is directly involved in the posed action.); proposed action, the agencies may select a “lead agency” to assume supervisory respon- 6. Any irreversible and irretrievable com- mitments of resources that would be in- sibility in the preparation of the EIS. If an volved in implementation, and the extent agency decides that a proposed action is not a major action that will have sufficient signifi- to which the proposal curtails the range cant impact on the quality of the human en- of potential uses of the environment; vironment to require the processing of an EIS, 7. The relationship of the proposed action it would issue a “negative declaration.”39 to Federal, State, or local land use plans, Negative declarations are generally not is- policies, and controls for the affected sued as formal documents or published in the area (such as those prepared under the Federal Register. Clean Air Act, Clean Water Act, or Fed- eral land management laws), and a The agency then prepares a draft EIS on statement of how the agency has recon- the proposed action. The draft statement ciled any conflict with such plans, or the must fulfill and satisfy, to the fullest extent reasons for proceeding with the pro- possible, the requirements of a final EIS as posed action despite the conflict; and set out in section 102(2)(c), as well as the agency’s own regulations on the preparation 8. Other Federal policy interests and con- of an EIS. CEQ guidelines provide that a draft siderations that offset or mitigate the

EIS40 should contain a “detailed” description adverse environmental consequences of of: the proposed action. 144 ● Analysis of Laws Governing Access Across Federal Lands

Each EIS should be prepared in ac- under a program of grants to States (primari- cordance with the statutory directive that ly Federal-aid highways). There must be a agencies “utilize a systematic, interdisci- specified level of Federal participation and plinary approach which will insure the inte- guidance in the impact assessment process, grated use of natural and social sciences and an independent evaluation of the EIS prior to environmental design arts in planning any approval and adoption by the agency, notifi- decision which may have an impact on man’s cation of any other States or Federal land environment."41 management entities that could be affected by the proposed action or alternative, and a written statement of any disagreements PUBLIC PARTICIPATION about the impacts described in the EIS. The chief effects of the amendment are to validate The EIS is a public disclosure document. the policy of the Federal Highway Ad- As such, it is intended to provide a full and ministration that requires States to prepare candid presentation of the environmental fac- EISs for Federal-aid highway projects, and to tors along with other pertinent information overturn Federal court decisions that State- on proposed Federal actions. The EIS is a tool prepared EISs were legally insufficient under to aid in the decision process. It acts to en- NEPA. sure that the environmental consequences and all possible alternative approaches to a Once a draft statement is prepared, it is particular project, including its abandon- circulated for review and comment from the ment, are considered before action is taken. public and from those Federal, State, and An EIS must be presented clearly enough to local agencies that have expertise or jurisdiction relevant to the action under considera- be understood by an informed layman, yet it 44 must contain sufficiently detailed data to pro- tion. A period of 90 days is usually allowed vide technical information for interpretation for comment. Notice of the availability of the by specialists. draft EIS is published in the Federal Register and may also appear in local newspapers. A By compelling a formal, detailed statement public hearing may be held on a draft EIS, but of the anticipated environmental impacts and this usually occurs only when a hearing on a description of alternatives, NEPA provides the proposed action is required under other evidence that the mandated decisionmaking statutes or existing agency procedures. process has, in fact, taken place; and, most importantly, allows those removed from the By requiring an agency to seek out the initial process to evaluate and balance the views of appropriate Federal, State, and local factors on their own.42 officials and of the public, NEPA opens the decisionmaking process to those who may be Federal agencies must take full respon- affected by the action. This ensures that sibility for the preparation of an EIS. They issues, competing considerations, and envi- cannot simply accept documentation from an ronmental consequences, which might other- applicant for a permit, license, grant, or wise be overlooked or ignored by agency of- other Federal aid. Statements and environ- ficials, will be aired and given due considera- mental information submitted by applicants tion. Public comment on a draft EIS not only must be independently evaluated. The re- must be sought out but also must be weighed sponsibility for the impact evaluation, scope, by the agency in preparing the final version and content of the draft and final statements 43 of the EIS. The final EIS must be responsive to rests with the agency. Public Law 94-83 the issues and questions raised by Govern- amended NEPA to provide that if certain con- ment agencies and the public. ditions are satisfied, an agency may delegate EIS preparation to a State agency or to an of- One case interpreting this requirement ficial for a major Federal action funded held that: Ch. 6 Federal Land Planning and Environmental Laws ● 745

. . . officials must give more than cursory discretion, or otherwise not in accordance consideration to the suggestions and com- with the law. ments of the public in the preparation of the final impact statement. The proper response to comments which are both relevant and The Scope of Review reasonable is to either conduct the research The mere preparation of a document dis- necessary to provide satisfactory answers, cussing environmental impacts is not suffi- or to refer to those places in the impact state- cient to render agency action immune to ment which provide them. If the final impact statement fails substantially to do so, it will judicial review. The courts will look both at not meet the statutory requirements.45 the contents of the document and at the use to which it is put. In Calvert Cliffs’ Coordinating After a complete consideration of all com- Committee, Inc. v. AEC, the court of appeals ments and any additional information re- rejected the notion that the preparation of a ceived, the agency then prepares a final EIS. document which accompanied agency files This accompanies the proposal for action through the decisionmaking process, but through the decisionmaking process, which which was in no way used in that process, varies enormously from agency to agency. would be sufficient .49 The final EIS contains, in addition to the re- 50 quired sections described in the discussion of In the Gillham Dam case, it was held that the draft EIS, a description of coordination “at the very least, NEPA is an environmental with other agencies, responses to issues and full-disclosure law. ” On appeal, the Eighth questions raised in the draft review process, Circuit found it “clear that the Act is more and identification of any unresolved issues .46 than an environmental full-disclosure law,” and that it was “intended to effect substantive changes in decisionmaking.”51 NEPA AND JUDICIAL REVIEW There has been considerable litigation concerning the compliance with the procedural Agency compliance with the requirements requirements that section 102 places on agen- established by NEPA is subject to judicial cies. Almost without exception, the courts scrutiny. Although the Act does not contain a have held that agencies are required to make provision specifically authorizing judicial the fullest effort possible to comply with section 102 in every detail. The definition of “ma- review or enumerating judicial remedies, the 52 courts have uniformly held that injunctive jor Federal action” is expansive. Agencies relief will be granted to plaintiffs who dem- have been required to begin preparation of the statement early in the decisionmaking onstrate that the requirements of the Act 53 47 process. Responsibility for preparation and have not been met. A leading case states: review is placed squarely on the Federal 54 Injunction is the vehicle through which the agency, not on other interested parties. Ex- congressional policy behind this chapter can tensive discussion of the environmental be effectuated, and a violation of this section costs,55 the environmental impacts,56 and the in itself may constitute a sufficient demon- possible alternatives has been required.57 stration of irreparable harm to entitle a plaintiff to blanket injunctive relief. The development of case law relating to the substantive review of statements, or agency In addition, defects in the environmental im- actions based on statements, has been less pact process may be used as the basis for a complete. The term substantive review has challenge to agency action—implementation two differing, but closely related, meanings in of the proposal discussed in the EIS—under NEPA cases. It can refer to the action of a the Administrative Procedure Act.48 That Act court in assessing, on its own, the validity of provides authority to set aside any agency ac- an EIS and the conclusions contained therein. tion that is arbitrary, capricious, an abuse of It can also refer to judicial review based on 146 ● Analysis of Laws Governing Access Across Federal Lands the premise that NEPA, particularly section Another court described the judicial func- 101, imposes substantive requirements on an tion in these words: agency that go beyond the procedural re- The court’s role under this section is not quirements of section 102. In practice the two only to see that agencies have complied with have gone together. all procedural requirements but also to engage in substantial inquiry to determine In Calvert Cliffs’, the court indicated a will- whether there has been a clear error of judg- ingness to reverse an agency decision involv- ment; courts may delve into a decisionmaking ing a procedurally correct EIS if it could be process to determine if the decision was ar- shown that “the actual balance of costs and bitrary and capricious when viewed in terms benefits struck was arbitrary or clearly gave of the data and information supplied and set insufficient weight to environmental fac- forth in the environmental impact state- tors.”58 In another early NEPA case, the im- ment.63 pact statement was held inadequate because These decisions indicate that NEPA is to be it consisted “almost entirely of unsupported 59 more than an exercise in collecting informa- conclusions.” However, diametrically option. Final agency decisions cannot be made posite views have also been indicated by 60 in disregard of the information that is con- some courts: tained or should be contained in the impact statement. Judicial review of the final environmental statement was limited to whether all five pro- Judicial Review and Delay cedural requirements of this section [section 102] were met, whether it constituted ob- The EIS process and judicial review of vious good faith compliance with the de- agency compliance with NEPA have been mands of this section, and whether it con- cited as causing substantial delays in the tained a reasonable discussion of the subject Federal approval of mining-related applica- matter involved in the five required areas. tions, such as securing a right-of-way over Federal lands. It is claimed that the time While there has been no final disposition of spent in complying with NEPA adds to the this conflict by the Supreme Court, five cir- cost of mining operations. 61 cuit courts of appeals have adopted a mid- One industry spokesman64 has estimated way position. They found that section 101 of that the time involved in obtaining all en- NEPA does impose substantive requirements vironmental permits, where no Federal right- on an agency and allows judicial review of of-way is sought, is 60 to 90 days, at a min- whether those substantive requirements have imum (figure 6). If a right-of-way across been met. However, that review is limited to Federal lands is involved, he estimated that the traditional standards of determining 36 to 44 months are required (figure 7).65 whether the administrative action was “arbi- These figures do not include any estimate of trary, capricious, or an abuse of discretion. ” the time involved if the matter is subject to This position has been expressed as follows: judicial review. In determining whether the substantive re- In 1976, CEQ published an analysis of quirement of this section has been met, the Federal agency experience under NEPA.66 reviewing court must first determine CEQ surveyed 70 Federal agencies to deter- whether the agency acted within the scope of its authority, and next whether the decision mine the amount of time they took to prepare reached was arbitrary, capricious, or other- an EIS and the extent of NEPA litigation. (For wise not in accordance with law; in making Federal land management agencies, the re- the latter determination, the court must de- sults are shown in tables 5 and 6.) cide if the agency failed to consider all rele- The CEQ report observed:67 vant factors in reaching its decision or if the decision itself represented a clear error of There are three points in the EIS process judgment.62 when delays can occur—in preparing the Ch. 6 Federal Land Planning and Environmental Laws ● 147

Figure 6.—Time Required to Get Environmental Permits if Proponent Owns the Site and No Federal Rights-of-Way Are Involved

I Proponent makes application I 4 s ? Environmental State Protection Agencya or agencies 60 to 90 daysb

[ Permit to construct is granted ~he Environmental Protection Agency may decide to write an environmental impact statement. ~ime span maybe longer if proponent’s application is incomplete. SOURCE: William R. Tipton, “Environmental Considerations in Project Management,” Figure 1, Jourr?a/ ot Mefa/s, May 1977, p. 18.

Figure 7.—Time Required to Get Environmental Permits if Federal Lands Are Involved

2 to 3 months * Attempt to get “negative declaration” I # 4 18 months Write environmental impact assessment Get lead agency named i Get lead agency to pick EIS team 10 months Complete draft EIS 36 E to 2 to 6, months 44 months

1 3to6“months Publish final EIS and file with CEQ t I E i 1 month CEQ approves or disapproves final EIS I no time limit Cabinet official makes “go” or “no go” I f decision for proponent’s project

SOURCE: William R. Tipton, “Environmental Considerations in Project Management,” Figure 2, Journal of Metals, May 1977, p. 19. 148 c Analysis of Laws Governing Access Across Federal Lands

draft, in preparing the final after comments Table 5.—Time Required for Draft EIS Preparation, are in, and after issuance of the final. The Fiscal Year 1975 time required to prepare a draft EIS differs (in months) from agency to agency and from project to Minimum Maximum Average project. The scope of a project, the experience of the people preparing the state- Agriculture ment, the relationship of the EIS process to Forest Service...... 1 24 13 the decisionmaking process, and the priority Interior ...... 1 18 10 accorded by the agency management to the Bureau of Land Management ...... 2 38 20 statement and the project itself are all Fish and Wildlife critical. Service ...... 3 12 8 CEQ concluded in its annual report that, National Park “There were substantial problems of delay in Service ...... 12 24 14 the early years of NEPA, but that they are Average Time Between Filing of Draft and Final EISs, diminishing as agencies improve their en- Calendar Year 1974 vironmental expertise and begin impact (in months) statement preparation earlier in their plan- 68 Agriculture ning and decisionmaking process." It was Forest Service ...... 9.1 recognized that there is a trend toward Interior shorter times for preparation of draft and Bureau of Land Management ...... 5.7 final EISs. Fish and Wildlife Service ...... 19.8 National Park Service ...... 13.0 CEQ’s most recent survey of agency ex- SOURCE: CEQ, Environmental Impact Statements: An Analysis of Six Years Ex- perience with NEPA litigation puts some perience by Seventy Federal Agencies, 1976, at 29-30.

Table 6.—National Environmental Policy Act Litigation

Cases Cases Injunction Cases dismissed dismissed issued Injunction alleging Cases no EIS alleging no EIS inadequate permanent Agency Cases EISa needed dismissed needed inadequate EIS prepared EIS injunction

Cases {as of June 30, 1976) completed Agriculture Forest Service ., ...... 31 24 11 9 2 5 1 0 Interior Bureau of Land Management...... 11 5 1 3 1 0 0 0 Fish and Wildlife Service ...... 4 3 0 0 0 0 0 0 b National Park Service ...... 7 6 0 0 0 2 1 0 All Federal agencies (total)...... 527C 350 155 96 55 60 45 0

Cases (as of June 30, 1976) pending Agriculture Forest Service ...... 23 13 0 0 0 3 3 0 Interior Bureau of Land Management...... 19 13 0 4 0 0 2 0 Fish and Wildlife Service ...... 2 2 0 0 0 0 0 0 National Park Service ...... 8 5 0 0 0 2 0 0 All Federal agencies (total)...... 399d 229 13 14 13 45 40 0

aEnvwonmental lm~act statements bln)unctlons Which permanently halted the Prolect cRepresents 444 actual cases The difference of 83 represents cases brought against more than one agency dThls figure represents 339 actual cases The difference of 60 represents cases brought against more than one agency SOURCE CEO, Emwonmerrra/ Qua//fy 7977 Efghth Arrrwa/ Report, pp 125.128 Ch. 6 Federal Land Planning and Environmental Laws ● 149 perspective on problems stemming from delay CEQ identified 42 projects that were stopped associated with NEPA.69 Since the enactment after a NEPA challenge was brought (see of NEPA,70 CEQ found that 7,334 EISs had table 8).72 been filed and that there had been a total of 783 suits filed against Federal agencies alleg- Table 8.—Projects Canceled as a Result of National ing a violation of NEPA. In 479 cases, plain- Environmental Policy Act (NEPA) Injunctions tiffs sought preparation of an EIS; in 288 Projects cases, the adequacy of an EIS was chal- Reason canceled lenged. Local/State decision to halt a project In the 6½ years covered, injunctions had involving Federal funds...... 12 been granted in 177 cases. In 547 cases that Federal decision to halt a project. . . . . 9 Part of a settlement agreement ...... 6 reached the courts, no injunctions were or- Applicant withdrew ...... 4 dered. Of the 177 injunctions, 75 have lasted Injunction granted under another law . 2 longer than 1 year (see table 7). CEQ charac- Congressional action...... 2 terizes delays caused by NEPA-related in- Local/State decision to proceed junctions as follows:71 without Federal funds’ ...... 2 Judicial interpretation of another law . 1 This figure is less than 3 percent of the Deference to congressional desires . . 1 7,334 actions for which impact statements Presidential decision to halt a project. 1 were prepared and a much smaller propor- Local land use conflicts ...... 1 tion of the unknown-but very large—num- Not indicated ...... 1 ber of assessments made. . . . In no cases TOTAL ...... 42

were actions stopped permanently solely ‘These two prolects were continued on the local or State level, only the Federal because of a NEPA injunction. Although in a funding was canceled particular case, an injunction might cause SOURCE CEO, Environmental Qua//ty–7977, E/ghrh Annual Report, P 29 considerable delay, the delays caused by NEPA injunctions are small when viewed The CEQ survey does show that NEPA lit- against the whole spectrum of Federal ac- igation delays are not as widespread as may tivity. sometimes be alleged. However, the small number of injunctions could be misleading. In Table 7.—Injunctive Delays of Federal Actions some cases, settlements or agreements by a Under the National Environmental Policy Act (NEPA) defendant agency may have the same delaying effect as an injunction (even though it is a Projects Injunctive action involved delay that is justified under terms of the statute). Also, the small number of injunc- Delayed by NEPA-related injunctions Up to 3 months ...... 32 tions may not accurately reflect the number 3 to 6 months ...... 18 of individuals affected. NEPA actions involv- 6 to 12 months ...... 22 ing broad agency programs such as the Over 12 months...... 75 Federal coal leasing program, the Outer Con- Length of delay not indicated. . . . 30 tinental Shelf leasing program, nuclear fuel TOTAL ...... 177 reprocessing, and western grazing practices Permanently halted by NEPA-related have affected hundreds, perhaps thousands, injunctions ...... 0 of applicants and potential applicants for Delayed by non-N EPA-related 73 injunctions ...... 20 Federal licenses and permits. No injunctions ...... 547 What the CEQ data indicate clearly is that Injunction status not indicated...... 39 most NEPA challenges are and can be re- TOTAL ...... 783 solved in a reasonable period of time. 150. Analysis of Laws Governing Access Across Federal Lands

FOOTNOTE REFERENCES FOR NATIONAL ENVIRONMENTAL POLICY ACT OF 1969

IPublic Law 91-190, 83 Stat. 852, Jan. 1, 1970, as ‘7Section 102(2)(H), 42 U.S.C. 4332(2)(H). amended by Public Law 94-83, 89 Stat. 424, Aug. 9, IBsection 102(2)(I), 42 U.S.C. 4332(Z)(1). 1975,42 U.S.C. 4321-4347. Wublic Law 91-190, Title H, section 202, 83 Stat, 242 U,S.C. 4332(2)(C). See Calvert Cliffs’ Coordinating 854, 43 U.S,C. 4342. Committee, Inc. v, U.S. Atomic Energy Commission, 449 Z“public Law 91-224, 84 Stat, 114, Apr. 3, 1970, 42 F,2d 1109 (D.C. Cir. 1971), cert. denied, 404 U.S. 942, U.S.C. 4372-4374. for a discussion of the legislative history and intended 21E.0. 11514,35 F,R. 4247, Mar. 5, 1970. effect of the requirement for an environmental impact ZZCEQ guidelines are at 40 CFR 1500. statement. See also, Richard N. L. Andrews, “Impact 23Greene Countyv.FPC,455F.2412 (2d Cir, 1972). Statements and Impact Assessment,” in Environmental 2442 U.S,C, 4332(2)(C). Impact Assessment (Marian Blisset, cd,), Engineering ‘s40 CFR 1500.6(c). Foundation, 1975, at pp. 16-18. 2’40 CFR 1500.5, 3However, five circuit courts of appeals have ex- ZT40 CFR 1500.6(c). plicitly adopted the position that NEPA imposes some 2’40 CFR 1500.6( a]. substantive requirements on Federal agencies: EDF v. ’940 CFR lsoo. qb). Corps of Engineers, 492 F.2d 1123 (5th Cir. 1974); Con- 30Courts have found some of the following to be “ma- servation Council v. Froehlke, 473 F.2d 664 (4th Cir. jor actions:” a Federal loan guarantee for a 16-story 1973); Sierra Club v. Froehlke, 486 F.2d 946 (7th Cir. building, Goose Hollow Foothills League v. Romney, 334 1973); EDF v. Corps of Engineers, 470 F.2d 289 (8th Cir. F. Supp. 877 (D.Ore. 1971); approval of a branch bank 1972); and Calvert C.lif~s’ Coordinating Committee, Inc. location, Billings v. Camp, 4 E.R,C. 1744 (D.D.C. 1972); v. AEC, 449 F,2d I109 (D.C. Cir. 1971). 3115 U.s.c. 793(c)(l). In Calvert Cliffs, the court stated its role in reviewing ’233 U.s.c. 1371(c)(1). both procedural and substantive aspects of an agency 337 U.S,C. 135 et seq. decision: 34EDF v. EPA, 489 F,2d 1247 (D.C. Cir, 1973). The reviewing courts probably camot reverse a 3sThe original CEQ guidelines for EIS preparation substantive provision on its merits, under section 101, also adopted this interpretation: “Because of (NEPA’s) unless it be shown that the actual balance of costs and legislative history, environmentally protective regula- benefits that was struck was arbitrary or clearly gave insufficient weight to environmental values. But if the deci- tory actions concurred in or taken by the EPA are not sion was reached procedurally without individualized con- deemed actions which require preparation of an EIS sideration and balancing of environmental factors—con- under section 102(2](c) of the Act. ” Section 5(d), 36 F.R. ducted fully and in good faith—it is the responsibility of 7724, Apr. 23, 1971. the courts to reverse. “see Ca]vert ~iffs coordinating COmmittee, Inc. v. 4See section 304(b) of the Federal Land Policy and AEC, 449 F.2d 1109 (D.C. Cir. 1971); National Resources Management Act of 1976, Public Law 94-579, 90 Stat. Defense Council v. Morton, 458 F.2d 827 (D.C. Cir. 2765, 43 U.S.C. 1734(b), which applies to the public 1972); Scientists’ Institute for PubJic In~ormation v, lands and the national forests, See also, the regulations AEC, 4811 F.2d 1079 (D.C. Cir, 1973). for the National Park Service and the Bureau of Land ‘Scientists Institute for Public hformation v. AEG Management at 43 CFR 2802.1-2(a) (l); and for the Fish 481 F.2d 1079 (D,C, Cir. 1973), and Wildlife Service at 50 CFR 29. 21-22(a). 3840 CFR lsoo, qd)(z), 542 U.S.C. 4331(a). 3Whe CEQ guidelines say little about negative decla- “Id. rations, concentrating rather on the requirements for 7Section 105,42 U.S.C, 4335. finding the existence of a major action. Agencies are ‘Section IOl(b), 42 U,S.C. 4331(b). required to notify CEQ when they have made a negative 9Section 102(1), 42 U.S,C. 4332(l), declaration for a proposed action (i) which is of the sort ‘“Section 102(2)(A), 42 U.S.C. 4332(2)(A). that the agency has previously identified as generally “Id. requiring an EIS, (ii] which is similar to actions for ‘zSection 102(2)(B), 42 U.S.C. 4332(2)(B). which it has prepared a significant number of state- ,3 Section 102(2)(c), 42 U.S.C. 4332(Z)(C)” ments, or (iii) which the agency has previously an- “Section 102(2)(E), 42 U.S.C. 4332(E). This section nounced would be the subject of an EIS, or concerning was originally section I02(2)(D) and is so referred to in which the agency had received a request from CEQ to many court cases on NEPA; however, Public Law 94-83 prepare a statement. The agency is also required to added a new subparagraph (2)(D) and redesignated prepare a publicly available record briefly setting forth subparagraphs (D) to (H) as (E) to (1) respectively. the determination and explaining it. CEQ will period- ‘sSection 102(2)(F), 42 U.S.C. 4332(2)(F). ically publish in the FederaJ Register a list of such dec- “Section 102(2)(G), 42 U,S.C, 4332(2)(G). larations. 40 CFR 1500.6(e), Ch. 6 Federal Land Planning and Environmental Laws “ 151

~he requirement that a draft EIS “fulfill and satisfy “’’This section does not permit the responsible to the fullest extent possible at the time the draft is Federal agency to abdicate its statutory duties by prepared the requirements established for final state- reflexively rubberstamping an environmental impact ments by section I02(2)(c)” is found at 40 CFR statement prepared by others; the agency must in- 15 C)().7(a). Specific requirements for the contents of any dependently perform its reviewing, analytical and EIS are found at 40 CFR 1500.8. judicial functions and participate actively and signif- 4) Section 102(2)(A), 42 U.S.C. 4332(2)(A). icantly in the preparation and drafting process. ” 42Calvert Cliffs’ Coordinating Committee, Inc. v. AEC, Sierra Club v. Lynn, 502 F.2d. 43 (6th Cir. 1974). See 449 F.2d 1109 at (D.C. Cir. 1971). also, City of Davis v, Coleman, 521 F.2d. 661 (9th Cir. 43 Public Law 94-83,89 Stat. 424, Aug. 9, 1975. 1975). 44CEQ provides a list of “Areas of environmental im- 55’’ Detailed environmental impact statement must pact and Federal agencies and Federal-State agencies cover environmental costs which may be avoided. ” with jurisdiction by law or special expertise to com- Montgomery v. Ellis, 364 F. Supp. 517 (D. Ala. 1973). ment thereon” in appendix I to 40 CFR part 1500. Pro- 5’” T0 carry out the statutory mandate of this section, cedures for soliciting comments from State and local every relevant environmental effect of a project must agencies are governed by OMB Circular No. A-95, see be given consideration in the environmental impact appendix IV to 40 CFR part 1500. statement.” Sierra Club v. Morton, 510 F.2d. 813 (5th 45Lathan v. Volpe, 350 F. Supp. 262, at 265 (W.D. Cir. 1975). “Environmental impact statement should Wash. 1972). discuss all significant primary environmental effects 4840 CFR 1500. IO(a). and all substantial secondary environmental effects. ” 47EDF v. Froehlke, 477 F.2d. 1033 (8th Cir. 1973). Lije of the Land v. Volpe, 363 F, Supp. 1171 [D, Hawaii However, while courts have held that injunctive relief 1972), aff’d, 485 F.2d 460. is appropriate under NEPA, they have applied the tra- 57” It is absolutely essential to the process under this ditional tests that apply in all civil cases to applications section that the decisionmaker be provided with a de- for injunctions. Plaintiffs seeking injunctive relief must tailed and careful analysis of the relative environ- show (1] that they are likely to prevail on the merits; (2) mental merits and demerits of the proposed action and that they will suffer irreparable damage if the injunc- possible alternatives. ” National Resources Defense tion is not issued; and (3) that the public interest sup- Council v. Callaway, 524 F.2d 79 (2d Cir. 1975). ports granting the injunction. See Conservation Council 58ca]vert C]iffs supra, note 2” of North Carolina v. Costanzo, 528 F.2d. 250 (4th Cir. SgEnvironmenta] Defense Fund v. TVA, 339 FQSupP” 1974); EDF v. Armstrong, 352 F. Supp. 50 (D. Col. 1972), 806 (E.D. Tern. 1972). supplemented, 356 F. Supp. 131, aff’d, 487 F.2d. 814, ‘National Helium Corp. v. Morton, 486 F.2d 995 (lOth cert. denied, 416 U.S. 974, rehearing denied, 419 U.S. Cir. 1973). 1041. 6’See, supra, note 2. “Codified at 5 U.S.C. 551-59, 701-06, 13o5, 31o5, G’Environmenta] Defense Fund v. Corps of Engineers 3344,6362, 7562. 470 F.2d 289 (8th Cir. 1972). 4QCalvert Cliffs’ Coordinating Committee, Inc. v. AEC, 63Cape Henry Bird Club v. Laird, 359 F. Supp. 404 (D. 449 F.2d 1109 (D.C. Cir. 1971). Va. 1973), aff’d, 484 F.2d 453. 50Environmental Defense Fund v. Corps of Engineers, 64william R. Tipton, “EnvironmentaI Considerations 325 F. Supp. 749 (E.D. Ark. 1971). in Project Management, ” Journal of Metals, May 1977. 51 Environmental Defense Fund v. Corps of Engineers, 65Tipton’s estimates do not include any provision for 470 F.2d 289, (8th Cir. 1972). environmental impact reviews where the applicant 52’’This section was designed to cover almost every owns the site and no Federal rights-of-way are in- form of Federal activity.” Chelsea Neighborhood volved, Tipton posits that there is no Federal role in this Associations v. U.S. Postal Service, 516 F.2d 378 (2d transaction at all, hence no NEPA application, It should Cir. 1975). See also, Union Meclding v. U. S., 390 F. be noted, however, that 15 States have enacted com- Supp. 391 (D. Pa. 1971) and Hardy v. MitcheJl, 460 F.2d prehensive statutes similar in many respects to NEPA, 640 (2d Cir. 1972). 4 States have administrative or executive orders re- 53’’ Federal officials are entitled to “dream out loud” quiring environmental reviews, and 7 States have spe- without filing an impact statement; however, a state- cial or limited EIS requirements. See Environmental ment is required when a proposal moves beyond the QuaJity–1977, The Eighth Annual I?eport of the Council “dream” stage into some form of tangible response. ” on Environmental Quality, 1977, pp. 130-35, (hereafter Sierra Club v. Morton, 514 F.2d 856 (D.C. Cir. 1975), “Environment—1977”). Therefore, in some States, the rev’d on other grounds, 427 U.S. 390. “Environmental permit review process might come to resemble more impact statement should be prepared at the earliest closely the Federal process even if no Federal rights-of- time prior to implementation of proposed major Federal way are involved. 8 action, so that alternative courses of action with less ’Environmental Impact Statements: An Analysis of 6 severe environmental consequences can be con- Years Experience by 70 Federal Agencies, Council on sidered. ” Friends of the Earth v. Coleman, 518 F.2d. 323 Environmental Quality, March 1976. (9th Cir. 1975). ‘71d. at 28. 152 ● Analysis of Laws Governing Access Across Federal Lands

fi8EnvironmentalaJJEnvjrOnmentaJ QualitY-1Quality—l 976, The Seventh Annual 721d. at 129. Report of the Council on Environmental Quality, 1976, p. 73The purpose of this paragraph is not to argue the 123. merits of the cases mentioned or to imply that the e9Environment-l6gEnvironment—~ 977, pp. 122-129. delays indicated were environmental, but merely to 70 Figures in this survey were for the period ending point out that 177 injunctions do not translate into only June 30,1976. 177 individual projects. Challenges to generic pro- 71 EnvironmenEnvironment—1977, t -1977, pp. 123, 129, grams can have widespread effects. Ch. 6 Federal Land Planning and Environmental Laws .153

SECTION 4(f) OF THE DEPARTMENT OF TRANSPORTATION ACT OF 1966

The Department of Transportation (DOT) park, refuge, and recreation lands and his- Act of 19661 consolidated various Federal toric sites; it directs the Secretary to develop transportation agencies and programs into a transportation plans in cooperation with the single new department. One of the stated pur- States and the Departments of Housing and poses of the reorganization was the adoption Urban Development, the Interior, and Agri- of the national land preservation policy that a culture to enhance and maintain the lands “special effort should be made to preserve traversed by transportation projects; and, the natural beauty of the countryside and most importantly, it imposes direct and ex- public park and recreation lands, wildlife plicit restrictions on the authority of the and waterfowl refuges, and historic sites.”2 Secretary to approve federally funded pro- To implement this policy, section 4(f) of the grams or projects that would use any of these DOT Act, as amended,3 imposes specific limi- lands of National, State, or local significance tations on the authority of the Secretary of unless there is no prudent and feasible alter- Transportation to approve Federal expend- native and all possible planning has been in- itures for projects that would use such lands. cluded to minimize harm. Section 4(f) provides: Section 4(f) has far-reaching implications It is hereby declared to be the national for the availability of Federal funds for policy that special effort should be made to transportation projects that might be needed preserve the natural beauty of the coun- to develop mineral resources, not only be- tryside and public park and recreation lands, wildlife and waterfowl refuges, and cause it may restrict the approval of projects historic sites. The Secretary of Transporta- on certain Federal lands for transportation tion shall cooperate and consult with the purposes, but also because it limits the use of Secretaries of the Interior, Housing and Ur- State, local, and some private lands. Section ban Development, and Agriculture, and with 4(f) and a virtually identical provision, section the States in developing transportation plans 138 of Title 23, U. S. C., the Federal-Aid and programs that include measures to main- Highway Act, as amended,5 were passed in tain or enhance the natural beauty of the response to the recognized tendency on the lands traversed. After August 23, 1968, the part of some Federal, State, and local of- Secretary shall not approve any program or ficials to appropriate public park, recreation, project which requires the use of any public- and refuge lands and historic sites for ly owned land from a public park, recreation highway construction and other transporta- area, or wildlife and waterfowl refuge of Na- tional, State, or local significance as deter- tion projects in order to avoid the disruption mined by the Federal, State, or local officials and difficulties associated with use of built- having jurisdiction thereof, or any land from up areas. A 1976 amendment to section 138 an historic site of National, State, or local added the following provision expanding the significance as so determined by such of- Secretary’s transportation planning respon- ficials unless (1] there is no feasible and pru- sibilities for Federal-aid highways: dent alternative to the use of such land, and (2) such program includes all possible plan- . . . In carrying out the national policy de- ning to minimize harm to such park, recrea- clared in this section the Secretary in coop- tional area, wildlife and waterfowl refuge, or eration with the Secretary of the Interior and historic site resulting from such use.4 appropriate State and local officials, is authorized to conduct studies as to the most Section 4(f) has three components: it af- feasible Federal-aid routes for the movement firms the national policy to preserve public of motor vehicular traffic through or around Note: Footnotes for this section appear on p. 159. national parks so as to best serve the needs of the traveling public while preserving the 6 bursed to States from Federal funds, primar- natural beauty of these areas. ily the Highway Trust Fund. Other federally aided transportation pro- TRANSPORTATION PROJECTS grams may be subject to 4(f) review as well, if COVERED BY SECTION 4(f) use of protected lands is involved. These include, for example, programs for construc- The provisions of section 4(f) are appli- tion, expansion, and maintenance of rail- cable to federally funded transportation pro- roads, airports, and aviation and navigation grams and projects under the jurisdiction of aids. Extension of the Alaska Railroad, which the Secretary of Transportation. Section 138 is operated by the Federal Railroad Admin- applies only to Federal-aid highway projects.7 istration, may be subject to 4(f) restrictions if The Federal-aid highway program, which is a proposed route made use of protected administered by the Federal Highway Admin- lands. Because of the magnitude of Federal istration (FHWA) of DOT, provides Federal funding of State highway programs, the pri- funds for a percentage of the costs of the mary impact of section 4(f) has been on planning, design, and construction of high- highway and road construction projects. ways in the interstate, primary, secondary, For section 4(f) to apply, the project must and urban systems.8 Ninety percent of the be federally funded. Transportation projects costs of interstate highways and seventy per- that are entirely financed by State, local, or cent of the costs of other roads are reim- private funds are not subject to 4(f) restric- Ch. 6 Federal Land Planning and Environmental Laws ● 155 tions. 9 These restrictions do not apply to the and the National Wildlife Refuge System. Federal funding of State and local planning Section 4(f) would also seem to apply to com- processes and agencies, which may result in ponents of the National Wilderness Preserva- a proposal to use park land, since planning is tion System and the National Wild and Scenic not a program or project requiring use of Rivers System that are not managed as part such lands within the meaning of section of the park or refuge systems because of the 4( f). ’0 Section 4(f) is a limitation on the designated purposes of these systems—recre- authority of the Secretary of Transportation ation and preservation. In the case of other and thus would not generally apply to ap- Federal lands that are subject to multiple-use proval and construction of roads and other classification, such as the National Forest transportation projects on rights-of-way on System and public lands managed by the Federal lands (national parks, refuges, Bureau of Land Management (BLM) and the forests, and public land), which are within Bureau of Reclamation, section 4(f) would not the jurisdiction of the Secretaries of the In- apply if the portion of lands to be taken for a terior and Agriculture, if no DOT funds are transportation project is not actually being involved. used for park, recreation, wildlife, waterfowl, or historic purposes, and there is no def- PROTECTED LANDS inite formulated plan for such use.12 As an additional assurance of protection, the manag- The purpose of section 4(f) is to protect ing agency’s land use determination is sub- “public park and recreation lands, wildlife ject to review by the Secretary for its reason- and waterfowl refuges, and historic sites” ableness. 13 Thus, it cannot be assumed that from the environmentally destructive effects BLM-public lands and forest system lands are of transportation projects, by directing the automatically not subject to 4(f) review. Pub- Secretary of Transportation to deny the use lic land or forest areas used for recreation, of Federal funds for projects requiring the wildlife protection, and historic sites as well use of these lands, in all but the most unusual as areas that may be under study for poten- circumstances. Lands that are protected by tial designation as wilderness areas or Wild section 4(f), must meet certain statutory re- ll and Scenic Rivers System components may quirements. First, except for historic sites, require 4(f) review, but for the most part, the lands must be owned by the Federal, many of these lands will not require 4(f) re- State, or local government. Second, the lands view. Moreover, even protected national must be designated or used as a park, recrea- park, refuge, wilderness, and wild and scenic tion area, refuge, or historic site. Third, the rivers areas may not require 4(f) review, if lands must have National, State, or local sig- the appropriate land manager determines nificance as determined by the appropriate that they do not have National, State, or local Federal, State, or local officials. If these re- significance. This determination of nonsig- quirements are satisfied, then the Secretary nificance must be independently reviewed by may not approve any program or project re- the Secretary of Transportation or his desig- quiring their use unless he finds (1) that there nate.14 is no feasible and prudent alternative route, Lands owned by State and local govern- and (z) that the program includes all possible ments are subject to section 4(f) if they are planning to minimize harm to the protected designated as public parks, recreation areas, lands. Prior to any such approval, the wildlife or waterfowl refuges, or historic Secretary must conduct a review of possible sites. 15 If the lands are managed for multiple alternative routes and plans based on the uses and have not been officially designated best available information; this process is to these protected categories, they will fall known as 4(f) review. within the ambit of section 4(f) if, in the judg- The provisions of section 4(f) clearly apply ment of the official having jurisdiction over to components of the National Park System the lands,l6 they are actually used for such 156 ● Analysis of Laws Governing Access Across Federal Lands purposes. This land use determination is sub- Overton Park, Inc. v. Volpe.21 That case was a ject to independent review by the Secretary citizens’ suit to enjoin expenditure of Federal for its reasonableness. Publicly owned lands, funds for the construction of an interstate which are neither designated nor used for highway through a city park in Memphis, park, refuge, recreation, or historic purposes, Tern., on the grounds that the Secretary of are not subject to 4(f) review and approval. Transportation, in his approval of the project, had failed to satisfy the requirements of sec- Historic sites that are listed or eligible for tion 4(f). The district court had granted sum- inclusion in the National Register of Historic mary judgment denying the citizens’ claim. Places are protected by section 4(f) whether The denial was based on an interpretation or not they are publicly owned. An historic that 4(f) was merely advisory and the Sec- site that is not listed or eligible for the retary’s action was, therefore, discretionary register, is nevertheless protected if the ap- and subject only to narrow judicial review. propriate Federal, State, or local official determines that it has National, State, or local The Supreme Court never ruled on the significance. 17 FHWA regulations for treat- merits of the decision by the Secretary. The ment of historic sites require that FHWA and case record, reflecting the summary judg- State officials apply National Register Cri- ment granted by the district court, did not teria to all possible historic sites within the disclose sufficient information on which to area of potential environmental impact at the base a decision on the merits. The Court did, earliest possible stage of planning or con- however, interpret the statute in some detail sideration.18 Historic sites that are not listed and clearly set forth the standards for judi- or eligible for the National Register and that cial review. are not determined to possess National, State, or local significance are not subject to The Court found that the Secretary’s deci- 4(f) review and approval. The Secretary or sion was subject to judicial review through his designate must review the nonsignifi- suits by citizens groups or other aggrieved individuals, under section 701 of the Admini- cance determination for its reasonableness. 22 strative Procedure Act, since it held that In order to invoke 4(f) review and protec- there was no statutory provision restricting tion, Federal, State, and locally owned park, review of such decisions and the matter was refuge, recreation lands, and historic sites not a subject committed to agency discretion, must be found to have National, State, or thus rejecting the district court’s interpreta- local significance. The determination of sig- tion of the statute. The limitation on judicial nificance is to be made by the officials that review of matters committed by law to agency have jurisdiction over the lands concerned. discretion under the Administrative Proce- Any determination of nonsignificance is sub- dure Act, applies only in those rare instances ject to review for its reasonableness.19 If no where “statutes are drawn in such broad determination is made by the appropriate of- terms that there is no law to apply.”23 In im- ficial, then the lands are presumed signifi- plementing section 4(f), the Court found that cant for administrative proceedings and any the Secretary of Transportation clearly had subsequent judicial review. This presumption law to apply .24 is based on the national policy of giving the protection of these areas paramount im- The Court held that section 4(f) and section portance. 20 138 are “clear and specific directives” that provide that the Secretary shall not approve expenditures of Federal funds for any pro- OVERTON PARK gram or project requiring the use of any public parklands unless (1) there is no feasi- In 1971, the U.S. Supreme Court inter- ble and prudent alternative to the proposed preted section 4(f) in Citizens to Preserve use and (2) the project includes all possible Ch. 6 Federal Land Planning and Environmental Laws ● 157 planning to minimize harm from such use. feasible alternative route is a route that is The Court stated, “This language is a plain based on sound engineering practices.29 Con- and explicit bar to the use of Federal funds siderations of cost, delay, and community dis- for construction of highways and other trans- location are not appropriate factors in the portation projects through parks; only the determination of feasible alternative routes, most unusual situations are exempt.”25 The but climate, topography, geology, and techno- Court further noted that the passage of sec- logical restraints do relate to feasibility. To tions 4(f) and 138 marked congressional re- find that there is no feasible alternative jection of the contention that factors of cost, route, the Secretary must find that, as a mat- directness of route, community disruption, ter of sound engineering, the highway or and other competing uses should be weighed other project could not be constructed along on an equal basis with the preservation of any other route.30 park land. A prudent alternative route is one that But the very existence of these statutes in- presents no unique problems.31 For an alter- dicates that protection of park land was to native route to be imprudent it must have be given paramount importance. The few truly unusual features so that the costs or green havens that are public parks were not community disruption would reach “extraor- to be lost unless there were truly unusual dinary magnitudes.”32 High costs, delay, dis- factors present in a particular case or the location of homes and businesses, and other cost or community disruption resulting from factors commonly associated with highway alternative routes reached extraordinary magnitudes. If the statutes are to have any and other transportation construction are not meaning, the Secretary cannot approve the so unusual or extraordinary as to render an destruction of park land unless he finds that alternative, which resulted in such effects, an alternative routes present unique problems .26 imprudent route. Because section 4(f) strictly limited the In addition to a finding that there is no Secretary’s actions and imposed specific pre- feasible or prudent alternative route, section conditions on the approval of transportation 4(f) requires, as a precondition to approval of projects that use park land, the Court found a route using park land or other protected that the Secretary’s decision was subject to areas, that the project include “all possible full judicial scrutiny. Affidavits issued in sup- planning to minimize harm from such use. ” port of the administrative decision for litiga- Thus protective measures, which may add to tion purposes were found not to be a suffi- costs of the project or impose delay, may not cient record of the factors weighed in the 4(f) be rejected because of difficulties involved, decision. The Court did not hold that the Sec- since such problems do not render the meas- retary is required to make formal findings of ures impossible, and the protection of parks, fact in a 4(f) review, but it stated that the refuges, recreation areas, and historic sites record must disclose the factual basis to sup- is to be given predominance over other fac- port his actions and demonstrate administra- tors. Considerations of cost, delay, and dis- tive compliance with the requirements of ruption are factors relating to the prudence 4(f).27 In response to the Court’s ruling on the of a particular alternative route and not to inadequacy of the administrative record, the issue of the adequacy of planning for a DOT-FHWA regulations now require the route using 4(f) land. preparation of a special 4(f) statement whenever 4(f) lands are to be used in a highway project. 28 THE 4(f) STATEMENT

The Court also defined the term “feasible To provide a basis for 4(f) review and a and prudent alternative” and the factors that record of the various factors and alternatives may properly be considered under each. A considered, DOT-FHWA regulations require — —

158. Analysis of Laws Governing Access Across Federal Lands

that a 4(f) statement be prepared for projects proposed project, the 4(f) lands to be used, or programs that would require use of pro- and the the recreational, historic, wildlife, tected lands within the scope of section 4(f) or and environmental characteristics of the sur- section 138. The purpose of the 4(f) statement rounding community, plus the potential ef- is to document the consideration, consulta- fects on existing facilities and land users.41 tions, and alternative studies carried out in determining that there are no feasible and Accurate and detailed information must be prudent alternatives to the use of protected included to support the determination that lands, and to support a determination that there is no feasible or prudent alternative. the proposed action includes all possible “Supporting information should demonstrate planning to minimize harm.33 The statement is that there are unique problems, truly unusual to be coordinated with the Federal, State, or factors present, and evidence that the cost or community disruption resulting from such local agency having jurisdiction over the 42 land, with the Departments of the Interior routes reaches extraordinary magnitudes.” and Housing and Urban Development, and The statement must also include the “best where appropriate, with the Department of 34 available information” on measures to mini- Agriculture. mize harm to section 4(f) land from highway DOT-FHWA regulations on preparation of construction. Examples of such measures in- EISs under the National Environmental Policy clude replacement of or compensation for Act (NEPA) require that an EIS be prepared lands taken, improvement of remaining lands whenever a 4(f) statement is required. An EIS and facilities, design features to reduce the is required for any major Federal action effects of such use, construction of substitute significantly affecting the environment. The facilities prior to destruction or taking of 4(f) regulations list, among major actions, “a proj- lands, and conducting scheduled demolition, moving, and construction activities during the ect that warrants a major action classifica- 43 tion because it has been given national recog- off-season. Finally the statement should in- nition by Congress. . . . Such a project would clude a summary of the coordination with be one that falls under section 4(f) of the DOT other Government agencies, and copies of 35 comments received during agency review and Act . . " The regulations also provide that 44 “an action that has more than a minimal ef- their disposition. fect on properties protected under section 4(f) of the DOT Act” is to be considered as an In order for the Secretary to approve use of action “significantly affecting the human en- lands protected by section 4(f) and section vironment.”36 Both the EIS and the 4(f) state- 138, he must find that there is no feasible and ment are to be prepared during the location prudent alternative to their use and that all stage of highway development, prior to the possible planning has been done to minimize selection of a particular location.37 The 4(f) harm. There must be consideration of alter- statement may be prepared in coordination native routes and plans, all of which must be with the EIS and may be either a structurally found to be neither prudent nor feasible. Con- independent section of the EIS or a separate siderations of cost, disruption, and delay document. 38 The 4(f) statement normally will bear on the determination of prudence but accompany the final EIS through the decision they are not to be given equal status with the process. 39 national policy on preservation of park and other lands. Only the most unusual circum- The 4(f) statement should list the factors stances will justify approval of a route used to judge that each alternative is not through park land. Any statement proposing feasible and prudent along with the special use of 4(f) land must include all possible plan- measures planned to minimize harm to the ning to avoid environmental harm before it protected land.40 Each statement should pre- may be approved. Cost, delay, and disruption sent a full and complete description of the are all factors relating to the prudence of the Ch. 6 Federal Land Planning and Environmental Laws ● 159 route and not to the issue of planning. The ment.45 Only after the substantive and proce- review of alternative routes and plans, coor- dural requirements of 4(f) have been satisfied dination with other agencies, and factors may the Secretary approve Federal expend- leading to the approval of use of protected itures for construction of the project. lands must be documented in a 4(f) state- I

FOOTNOTE REFERENCES FOR SECTION 4(f)

‘Public Law 89-670, 80 Stat, 931, Oct. 15, 1976, 49 1723 CFR 771.19(b). U,S.C, section 1651 et seq. “23 CFR 771.20. 249 U.S,C, section 1651(b)(2). “23 CFR 771. 19(c). 349 U,S.C. section 1653(f). 20&]ington coalition on Transportation V. Volpe, 458 ‘Id. F.2d 1323 (4th Cir, 1972), cert. denied, 409 U.S. 1000, ‘Through several amendments, section 138 is now 2’401 U.S. 402 (1970). substantially identical to section 4(f): Public Law 225 U.s.c. 701. 89-574, section 15, 80 Stat. 771, Sept. 13, 1966, as z3401 U.S. 41o, citing, S. Rept. 752, 79th COng. 1st amended by Public Law 90-495, section 18(a), 82 Stat. sess. 16 (1945). 823, Aug. 23, 1968, and Public Law 94-280, Title 1, sec- 24401 Us. 4110 tion 124,90 Stat, 440, May 5, 1976, “Id. ‘Public Law 94-280, Title 1, section 124, 90 Stat, 440, 2’Id, at 412,413, May 5, 1976,23 U. S. C., 138. 271d, at 408. 7See note, “Protecting Public Parkland from Indirect 2823 CFR 771.19. Federal Highway Intrusion, ” 62 Iowa Law Review 960 29401 U.S. 411, In Brooks v. Coleman, 518 F.2d 17, 19 [1977) at 963, n. 31. (9th Cir. 1975), the Ninth Circuit interpreted feasibility ‘The routes for Federal-aid highways are designated to require a tested engineering method and held infea- by State or local officials subject to approval by the sible a proposed method that had never been tried in Secretary of Transportation, 23 U.S.C. 103, 23 U.S.C. the United States. See also, Monroe County Conserva- 317, 23 U.S.C. 103(f). The State of Alaska is heavily tion Council v. Volpe, 472 F.2d 693 (2d Cir. 1972). 30401 Us. dependent on Federal funds for the construction of sur- 3 411. face transportation facilities as are other States. In FY ’401 U.S. 413, 1976, the Department of Transportation provided over 321d. $113 million for the construction or repair of surface 3323 CFR 771,19(a). transportation facilities in Alaska. It is doubtful that 3’23 CFR 771.19(g). the State of Alaska would make any large expenditures 3s23 CFR 771.9(d)(7), for surface transportation facilities without Federal 3623 CFR 771. IO(e)(i). support. H. D. Scougal, Alaskan Commissioner of ’723 CFR 771.5(b). FHWA regulations divided high- Highways, “Highway Status for 1976, Plans for 1977,” way development into four stages: (1) System Planning Alaska Construction and Oil, January 1977, p. 51. Stage—regional analysis of transportation needs and ‘See Citizens for Food and Progress, Inc. v. A4usgrove, the identification of transportation corridors; (2) Loca- 397 F. Supp. 397 (D. Ga. 1975), and Named Indiv. Mem- tion Stage—from the end of system planning through bers of the San Antonio Conservation Society v. Texas the selection of a particular location; (3) Design Stage— Highway Dept., 496 F.2d 1017, at 1022-23 (5th Cir. from the selection of a particular location to the start of 1974], cert. denied, 420 U.S. 296 (1975). construction; and (4) Construction. 23 CFR 795.2(e). IOHi]~ v. Co]eman, 399 F. Supp. 194 (D. Del. 1975). 3823 CFR 771. lg(f), See also, Stop H-3 Ass ‘n. v. Co~e- “23 CFR section 771.19(b). See also, Thompson v. man, 533 F.2d 434 (9th Cir, 1976). Fugate, 347 F. Supp. 120 (E.D. Va. 1972), Daly v. Volpe, 3923 CFR 771.19(n). 350 F. Supp. 252, 256 (W.D. Wash, 1972), aff’d mem., 4“23 CFR 771. 19(f). 514 F.2d 1106 (9th Cir. 1975). 4’23 CFR 771.19(i). 1223 CFR 771.19(d). 4223 CFR 771.19(]). “Id. 4323 CFR 771.19(k). 1423 CFR 771.19(c). 4423 CFR 771.19(n). IsCitizens Environmental Counsel v. VoJpe, 365 F. 45D. C. Federation of Civic Associations v. Volpe, 459 Supp. 286 (D. Kan. 1973), aff’d, 484 F.2d, 870, cert. F.2d 1231 (D.C. Cir. 1972), cert. denied, 405 U.S. 1030. denied, 416 U.S. 936. 1’23 CFR 771,19(d), 160 ● Analysis of Laws Governing Access Across Federal Lands

ENDANGERED SPECIES ACT OF 1973

The Endangered Species Actl provides for dangered may be based on any of the follow- Federal identification of endangered and ing factors: threatened species of fish, wildlife, and plants; prohibits private activity that imperils 1. The present or threatened destruction, such species; and requires Federal agencies modification, or curtailment of its hab- to avoid any activities that would jeopardize itat or range; such species or result in the destruction of 2. Overutilization for commercial, sporting, critical habitats. In its restriction on Federal scientific, or educational purposes; activities, particularly land use decisions relating to critical habitats, the Act could 3. Disease or predation; have an effect on access to mineral resources. 4. The inadequacy of existing regulatory mechanisms; and ENDANGERED SPECIES 5. Other natural or manmade factors affecting its continued existence.6 The Act sets forth the following purposes: . . . to provide a means whereby the eco- The determination must be on the basis of systems upon which endangered species and “the best scientific and commercial data threatened species depend may be con- available” to the Secretary after appropriate served, to provide a program for the conser- consultation with affected States, interested vation of such endangered species and persons and organizations, interested Fed- threatened species, and to take such steps as eral agencies and, for foreign species, con- may be appropriate to achieve the purposes of the treaties and conventions set forth in sultation with affected nations. Summaries of subsection (a) of this section.2 comments received on the proposal to add or remove a species from the endangered spe- The Secretary of the Interior, in consulta- cies list are published in the Federal Register. tion with the Secretary of Commerce, is directed to promulgate regulations identifying endangered species and threatened spe- PROHIBITED ACTS cies.3 An endangered species is defined in the Act as: The Secretary of the Interior is authorized to issue “such regulations as he deems nec- . . . any species which is in danger of extinc- essary and advisable to provide for the con- tion throughout all or a significant portion of its range other than a species of the Class In- servation” of listed species. With respect to secta determined by the Secretary to consti- any listed endangered species it is unlawful tute a pest whose protection under the provi- to “. . . take any such species within the sions of this chapter would present an over- United States” or “upon the high seas,” or to 4 " whelming risk to man. . . . violate any regulation pertaining to such species or to any (listed) threatened spe- A threatened species is defined as: cies.”7 As used in the Act, “the term ‘take’ . . . any species which is likely to become an means to harass, harm, pursue, hunt, shoot, endangered species within the foreseeable wound, kill, trap, capture, or collect, or to at- future throughout all or a significant portion 8 5 tempt to engage in any such conduct.” Regu- of its range. lations issued or proposed pursuant to the Act are to be published in the Federal Reg- The determination of whether a particular ister with a statement by the Secretary of the species of fish, wildlife, or plant is en- facts supporting the regulation and the rela- 9 Note: Footnotes for this section appear on pp. 163-164. tionship of such facts to the regulation. Ch. 6 Federal Land Planning and Environmental Laws “ 161

Federal Actions Section 7 of the Endangered Species Act of Section 7 of the Endangered Species Act re- 1973 has been interpreted by the courts as quires that all Federal agencies take steps to imposing a duty on all Federal agencies to en- ensure that their actions do not jeopardize sure that their actions would not jeopardize the existence of endangered and threatened the continued existence of any endangered or species. threatened species. Compliance with the section requires that all agencies must consider All other Federal departments and agen- the effects, if any, a proposed action may cies shall, in consultation with and with the have on an endangered or threatened species assistance of the Secretary, utilize their and must consult with the Secretary of the In- authorities in furtherance of the purposes of terior in devising programs for the conserva- this chapter by carrying out programs for tion of listed species. These duties are en- the conservation of endangered species and forceable in court by a citizen’s suit author- threatened species listed pursuant to section ized by section Ii(g) of the Endangered 1533 of this title and by taking such action Species Act. necessary to insure that actions authorized, funded, or carried out by them do not jeop- Any agency that fails to satisfy the require- ardize the continued existence of such ments of the Act in its consideration or ap- endangered species and threatened species proval of any action maybe enjoined from im- or result in the destruction or modification of plementing the proposed action until the habitat of such species which is determined agency is in compliance. by the Secretary, after consultation as appropriate with the affected States, to be Judicial review of the Endangered Species critical. ’” Act has centered on two questions: (1) Can the Secretary of the Interior, by disapproving Thus, a Federal land management agency of agency action with respect to an endan- evaluating a proposed action (such as grant- gered or threatened species, veto such a proj- ing a right-of-way over Federal lands) must ect? and (z) Can a court permanently enjoin a consider whether the action may harm an en- project on the grounds that it violates the dangered or threatened species or detri- Act? mentally affect a critical habitat. The agency must consult with the Secretary of the In- The first question has, apparently, been terior (primarily through the Fish and Wild- answered in the negative. In National Wild- life Service) to determine whether any harm life Federation v. Coleman, the fifth circuit may result and what steps can be taken to held: avoid or lessen any risk to an endangered or threatened species or a critical habitat. However, once an agency has had meaningful consultation with the Secretary of the In areas that are home to unique and en- Interior concerning actions which may affect dangered species, a consideration of the an endangered species the final decision of potential effects a proposed action might whether or not to proceed with the action have and of the conditions necessary to lies with the agency itself, Section 7 does not safeguard the protected species in compli- give the Department of the Interior a veto over the actions of other agencies, provided ance with the Act could impose substantial that the required consultation has occurred. and additional constraints on a Federal land It follows that after consulting with the management agency’s issuance of rights-of- Secretary the Federal agency involved must way across Federal areas. In other areas determine whether it has taken all necessary where there are few or no endangered spe- action to insure that its actions will not cies, the compliance requirements would jeopardize the continued existence of an en- have a lesser, if any, effect on the actions of dangered species or destroy or modify hab- Federal land management agencies. itat critical to the existence of the species. ” 162 ● Analysis of Laws Governing Access Across Federal Lands

In another case involving section 7, it was welfare of an endangered species may weigh held: more heavily upon the public conscience as expressed by the final will of Congress, than Consultation under section 7 does not re- the writeoff of those millions of dollars quire acquiescence. Should a difference of already expended for Tellico in excess of its opinion arise as to a given project the respon- present salvageable value.17 sibility for decision after consultation is not vested in the Secretary but in the agency in- The court accepted the opinion of the De- volved.12 partment of the Interior that the Act was violated by an action which: But having reached the decision that section 7 does not provide for a veto of projects . . . might be expected to result in a reduction by the Secretary of the Interior, both courts in the number or distribution of the species of sufficient magnitude to place the species ruled that the decision of an agency to go in further jeopardy, or restrict the potential ahead with a project that might present a risk and reasonable expansion or recovery of the to an endangered species was a proper sub- species.18 ject for judicial review under the standards of the Administrative Procedure Act. That It also indicated that, despite the lack of a standard provides that an agency action may veto power, the views of the Secretary of the be reversed if it is found that an agency de- Interior on the effect of an agency action cision was “arbitrary, capricious, an abuse were to be given great weight. After noting of discretion, or otherwise not in accordance the lack of veto authority, the court stated, with the law.”13 It is the application of the “However, his compliance standards may last part of this test to agency actions which properly influence final judicial review of admittedly harm an endangered species, but such actions, particularly as to technical matters committed by statute to his special ex- are justified on other grounds, that remains 19 a subject of controversy and judicial uncer- pertise.” tainty. On June 15, 1978, the Supreme Court af- In Hill v. Tennessee Valley Authority firmed the ruling of the sixth circuit in the 20 (TVA), 14 the celebrated case involving the Tellico Dam case. In upholding the circuit halting of the $100 million Tellico Dam be- court decision, the Supreme Court rejected cause its construction threatened the exist- TVA’s arguments that the dam should be ex- ence of the snail darter, the sixth circuit empted from section 7. The Court dismissed found that a decision to continue the project the argument that Congress had exempted would be a “prima facie” violation of section the dam from section 7 by implication be- 7 and, hence, unlawful.15 The opinion seems cause it had continued to appropriate funds after the snail darter was designated as an to vigorously reject the notion that violation of 21 the Act may properly be balanced against endangered species. In response to TVA’s other benefits associated with the project: argument that section 7 should be interpreted to allow the monetary value of the substan- TVA concedes the existence of a predict- tially completed project to be weighed against able causal nexus between the impoundment the “value” of the snail darter, the Court of the Little Tennessee and the ultimate de- pletion of the snail darter population. This said: admission alone suffices to bring the affirm- The plain intent of Congress in enacting ative action requirement of section 7 into this statute was to halt and reverse the trend play.l6 toward species extinction, whatever the TVA claims to have done everything possi- Cost.22 ble to save the snail darter, short of aban- doning work on the dam. That alternative is The Court found that there was an “irrec- deemed by TVA to be innately unreasonable. oncilable conflict” between the operation of We do not agree. It is conceivable that the the Tellico Dam and the explicit provisions of Ch. 6 Federal Land Planning and Environmental Laws ● 163

section 7 and that in such circumstances the The case of the notorious snail darter re- plain and unambiguous meaning of section 7 sulted in legislative action to amend section 7, must prevail. even before the final decision in Hill was issued by the Supreme Court. In the final days Congress has spoken in the plainest of words, making it abundantly clear that the of the 95th Congress, the Endangered Species balance has been struck in favor of affording Act was reauthorized under a compromise endangered species the highest of priorities, bill that set up a process for exempting some Federal projects that might harm a protected thereby adopting a policy which it described 24 as ‘institutionalized caution. ’23 I species or habitat.

FOOTNOTE REFERENCES FOR ENDANGERED SPECIES ACT

‘Public Law 93-205, 87 Stat. 885, Dec. 28, 1973, as Club had failed to meet its “burden of showing that the amended by Public Law 94-359, 90 Stat. 911 July 12, action of the Corps had jeopardized or would jeopard- 1976, 16 U.S,C, 1531 et seq. ize the continued existence of the Indiana bat. ” Id. at . 216 IJ. S.C. 1531(b) These treaties include the Conven- 1305. tion on International Trade in Endangered Species of ‘3 See Sierra Club v. Froehlke, 534 F.2d 1289, 1304. Wild Fauna and Flora and the Convention on Nature lqHi~] v. Tennessee Valley Authority, 549 F.2d. 1064 Protection and Wildlife Preservation in the Western (6th Cir. 1977), The Tellico Dam—a concrete and earth- Hemisphere, fill dam near the mouth of the Little Tennessee River— 316 U.S.C. 1532(4). was originally approved by Congress in 1966. It had 416 U.S,C, 1532(15). been the subject of two previously unsuccessful court 516 U.S. C. 1533(a)(l). challenges under the National Environmental Policy ’16 U.S.C. 1533(b)(l). Act alleging defects in the environmental impact state- 716 U.S.C. 1538(a). ment. In August 1973, a University of Tennessee ichthy- 616 U.S.C. 1532(14). ologist discovered a hitherto unknown species of fish, ’16 U.S.C. 1533(f)(3). the snail darter (Percina Zmostoma tanasai) thriving in ’016 U,S.C. 1537. the Little Tennesse River. It is a 3-inch, tannish, bottom- llNationa] Wi]d]ife Federation v. Coleman, 529 F. 2d dwelling member of the perch family that feeds on 369 (5th Cir. 1976) cert. denied, 97 S. Ct. 489 (1976). I-Ii]] freshwater snails. The river not only provides a full v. TVA, 549 F.2d 1064, 1071 (6th Cir. 1978) abstracts supply of food, but also, because it is free-flowing, National Wildlife Federation v. Coleman as follows: maintains, through the aerating action of its rapidly The welfare of the Mississippi Sandhill Crane was moving currents, the high oxygen levels required to sus- threatened by the future construction of a 5.7-mile seg- tain this species. The snail darter’s range appears to be ment of Interstate Highway 1-10 scheduled to traverse the wholly confined to a 17-mile stretch of the Little Ten- Crane’s designated critical habitat. Only 40 Sandhill nessee. TVA searched approximately 70 rivers in Ala- Cranes are known to exist. Based on the weight of the evi- bama and Tennessee without finding any more speci- dence, the Fifth Circuit reversed the district court’s denial mens of this species. The agency also attempted, unsuc- of injunctive relief and remanded the case with instruc- tions that an injunction issue halting activities which cessfully to transplant some specimens to a similar might jeopardize the continued existence of the Missis- river. sippi Sandhill Crane or destroy or modify critical habitat. On Nov. 10, 1975, the Secretary of the Interior desig- The injunction is to remain in effect until the Secretary of nated the snail darter an endangered species, 50 CFR the Interior determines that modifications to the project 17.ll(i), 40 F.R. 4705 (Nov. 10, 1975). In April of 1976, will bring it into compliance with the Act. In National Wildlife Federation v. Coleman, as in I-IiII, the U.S. Fish and Wildlife Service designated river miles 0.5 to 17 as the critical habitat of the snail darter. the Department of the Interior had objected to the agen- 50 CFR 17.61, 41 F.R, 13926. The Tellico Dam, over 80 cy decision to continue with a project. Izsierra C]ub v. Froeh]ke, 534 F. 2d. 1289 (5th Cirj percent complete, was scheduled to have been completed in January 1977. 1976). This case involved the alleged impact of construction of the Meramec Park reservoir by the Corps ‘sHill v. TVA, 549 F.2d, at 1069,1070. of Engineers on the Indiana bat. A request for injunc- “Id. at 107o. tive relief was denied on the grounds that the Sierra ‘71d. at 1074. —

164 ● Analysis of Laws Governing Access Across Federal Lands

‘eId.18Id. at 1070. The Department of the Interior defini- z198 S. Ct. 2279, 2299. tion was set forth at 40 F.R.F,R. 17764 (1976). 2298 S. Ct. 2297. IQId.‘eId. at 1070. 2398 S. Ct. 2302. 2 24 0TVA v. Hill,—U.S.—, 98 S. Ct. 2279, 57 L. Ed 2117, See Environmental Study Conference, Weekly Bulle- 46 U. S.L.W. 4673. tin Wrapup Addendum, Oct. 16, 1978, at 3-4. Ch. 6 Federal Land Planning and Environmental Laws ‘ 165

CLEAN AIR ACT

The Clean Air Act, as amended,’ estab- and safety, are common products of indus- lishes a national program for the regulation trial, commercial, and transportation ac- of air pollution. The program is directed by tivities. Based on medical information, EPA the Environmental Protection Agency (EPA). has established national standards for the State and local governments have primary maximum allowable concentrations of these responsibility for the prevention and control pollutants in air. “Primary standards” are of air pollution at the source, subject to EPA set at levels necessary to protect the public review. Federal land management agencies health from the known adverse effects of and Indian tribes also play an important role these pollutants. More stringent “secondary in determining air quality control standards standards” have been established for some of on Federal and Indian lands. these pollutants to protect the public welfare from the known and anticipated adverse ef- The Act applies to all areas, not just those fects of a pollutant. The Clean Air Act sets suffering from extreme air pollution. Its effects are most strongly felt in areas at op- forth an exact timetable by which all areas of the Nation are to meet primary standards for posite ends of the clean air spectrum: those each pollutant; secondary standards are to areas having the cleanest air and those where air pollution presents a danger to the be met on a more flexible schedule. public health. The latter areas—known as nonattainment regions—are under strict reg- To achieve the statutory goal of reducing ulatory controls designed to reduce levels of the presence of the criteria pollutants below air pollution. The former—generally called the primary and secondary standards, the nondegradation regions—are affected by a Clean Air Act authorizes a broad array of plans, programs, and regulatory actions. The statutory program for the prevention of sig- 3 nificant deterioration (PSD) aimed at preserv- major elements of the program are: ing the existing high air quality. ● Establishment of national ambient air Mining activities, particularly those in the quality standards (NAAQS) for air pol- Western United States and Alaska, are likely lutants known to pose a risk to the public to be affected by the PSD program because health or welfare; air quality in that part of the country is generally quite good. However, occasionally ● Submission by the States of implementa- because of mining operations, some western tion plans to achieve and maintain Fed- areas are in nonattainment status. In addi- eral air quality standards; tion, some mining operations and activities associated with mining, such as smelting and ● Review and approval of State implemen- refining and fossil fuel electric generation, tation plans by the Administrator of EPA are major sources of air pollution and subject and issuance of regulations at the Fed- to regulation wherever located. eral level to remedy any deficiencies in State plans; Regulation under the Clean Air Act is focused on the prevention and reduction of air ● Federal emission standards for major pollution involving five so-called “criteria new industrial, commercial, and elec- pollutants:” particulate, sulfur oxides, car- tric-generating facilities; bon monoxide, nitrogen dioxide, and photo- 2 chemical oxidants. These substances, which ● State programs to monitor air quality, in- are known to adversely affect public health spect facilities, and issue permits to limit emissions from major sources of pollu- Note: Footnotes for this section appear on pp. 177-181. tion: and

jf,-~{~ ( ) - T I - ]J 166 ● Analysis of Laws Governing Access Across Federal Lands

● A program to prevent significant de- IMPLEMENTATION OF THE CLEAN terioration of air quality in areas that AIR ACT AND THE 1977 exceed Federal air quality standards for AMENDMENTS the criteria pollutants. The 1970 amendments to the Clean Air Act The regulations generated through these launched an ambitious program for the programs govern all sources of air pollution, abatement of air pollution by 1977. Problems including mining. Mining activities can be encountered in meeting this objective led to directly and indirectly affected by several its major revision by the amendments of 1977. different aspects of clean air regulation. A State Implementation Plan (SIP) may set emis- The 1970 amendments to the Act ex- sions standards for new facilities or require pressed the intent of Congress that air quality existing facilities to abate present air pollu- standards should be adequate to protect the tion levels. Federal “standards of perform- public health, that they should be inviolable ance” have been promulgated for certain and not subject to compromise, and that they large industrial facilities, setting minimum re- should be met according to a timetable set quirements for the use of pollution control forth in the Act. Compliance extensions technology. Preconstruction review of new granted to the automobile industry by EPA, sources of pollution is required in both non- and the 1973 energy crisis, which resulted in attainment and nondegradation areas; in non- shortages of low-polluting fuels, contributed attainment areas, new sources of pollution to delays in meeting the timetable. These must use the most advanced pollution control problems were addressed in the Energy Sup- technology available, in nondegradation ply and Environmental Coordination Act of areas, new sources, which would increase 1974 (ESECA),4 which further extended auto pollution beyond specifically stated limits, emission control deadlines, and mandated the are flatly prohibited. New, as yet undefined increased use of coal and other domestic requirements, will be placed on sources of fuels by temporarily lowering the standards pollution that affect visibility in national for certain industries and by extending imple- parks and wilderness areas. mentation schedules. It is difficult to predict the exact effect the Although, by 1975, some pollutant emis- Clean Air Act will have on mining activities or sions had been reduced and some progress mineral access. Not only are the major im- made nationwide in controlling air pollution, pacts of air quality regulation highly site- industrial growth and the proliferation of specific, but the recently enacted Clean Air automobiles more than offset whatever im- Act Amendments of 1977 made major provements had been made. Moreover, new changes in several areas that most directly data indicated that pollutants from heavily affect the mining industry. In some instances, contaminated areas were spreading to re- Federal regulations implementing those mote rural regions, and that air pollutants changes have not yet been put in final form. such as sulfates and sulfuric acid, for which Changes in State regulatory programs, which there were no air quality standards, were be- flow from the amendments, will also take time ginning to present new health hazards. EPA to develop. reported that by 1977 only 91 of the Nation’s To understand the existing status of regu- 247 air quality control regions had achieved lation under the Clean Air Act and the intent national primary air quality standards for all and likely impact of the 1977 amendments, it of the major regulated air pollutants.5 The is necessary to have some background on the Council on Environmental Quality (CEQ) implementation of the Clean Air Act Amend- found that emissions from automobiles were ments of 1970 and the problems which arose increasing at a rate of 4.6 to 4.9 percent per under that law. year, and that emissions from stationary Ch. 6 Federal Land Planning and Environmental Laws ● 167 sources were contributing progressively in- hearings and consultation with Federal land creasing proportions to the pollutant load in managers, required in the Act. the ambient air. For example, the total nitrogen dioxide emissions from powerplants Classification under the Clean Air Act is of were increasing at an annual rate of 6.9 to particular concern to the mineral industry in 7.4 percent.’ A study conducted for Congress Alaska and in the West, where there are vast by the National Academy of Sciences con- areas where air quality meets or exceeds the cluded that safety margins associated with national secondary standards, and where ambient air quality standards were only some large conservation units have been des- marginally adequate; that about 40 million ignated as mandatory Class I areas. There persons could be classified as susceptible to are certain other Federal land management unhealthy air; and that an estimated 15,000 units that may not be redesignated as Class excess deaths were caused by air pollution III areas. annually, 4,000 of them directly attributable to automobile emissions.’ Additional field The 1977 amendments to the Clean Air Act tests conducted by individual States showed also contain a new section dealing with pollu- that damage linked directly to industrial tion controls to achieve visibility goals for pollution, which extended hundreds of miles certain Federal areas where visibility has beyond the sources of emissions, was reduc- been identified as an important value. These ing yields in forests and other crops in some areas are to be studied and any necessary regions by as much as 75 percent. measures taken to achieve the established visibility standards. In addition, the 1977 This last finding was particularly signifi- amendments extended the deadlines for cant because the courts had interpreted the meeting the EPA NAAQS from mid-1977 to Clean Air Act as requiring the protection of December 31, 1982, for sulfur oxides, nitro- air quality in areas that were cleaner than gen dioxide, and particulate matter, and to the national standards.’ In response to the December 31, 1987, for carbon monoxide and courts, the EPA promulgated regulations late photochemical oxidants. in 1974, which developed a system for classi- fying areas with respect to allowable incre- mental pollution:9 Class I areas, in which REGULATION UNDER THE almost no increment was allowed; Class 11 CLEAN AIR ACT areas, in which moderate increments were allowed; and Class III areas, in which in- Mining activities are governed by Title I of crements to the national standard were the Clean Air Act, which covers air pollution allowed. Initially, all areas were classified as from stationary sources. Unlike Title 11 of Class II. the Act, which established Federal controls on automobile emissions, Title I operates The 1977 amendments to the Clean Air Act through a series of regulatory strategies, contained detailed provisions for the preven- some developed and enforced at the State tion of significant deterioration. Specified level, some at the Federal level, and some permissible increments of sulfur oxides and within specialized local units of government particulate were established. Certain Fed- with responsibility for air pollution control. eral areas were immediately designated as Furthermore, under Title I, the type of regula- Class I areas, where air quality was to re- tion applied to nonvehicular sources of pollu- main virtually unchanged. All other clean air tion lacks the exact and all-encompassing areas were designated Class II, thus allowing character of auto pollution regulation. Each moderate industrial growth. The States may automobile has a federally assigned exact redesignate Class II areas as they deem ap- emission limit it must meet, these limits are propriate, subject to procedures, such as set forth years in advance and they are the 168 ● Analysis of Laws Governing Access Across Federal Lands

only air pollution requirements placed on Z . Secondary standards, which establish autos. levels necessary to safeguard values

10 pertaining to public welfare including Stationary sources rarely have exact and plant and animal life, visibility, build- foreseeable limits placed on them (new ings, and materials. source standards of performance are an exception). Pollution restrictions are deter- National ambient air quality standards have mined by the location of a source, by what been established for the following pollutants: other sources of pollution already exist in an carbon monoxide, sulfur dioxide, nitrogen di- area, by whether a source is new or old, by oxide, particulate matter, hydrocarbons, and which criteria pollutant, if any, it emits and photochemical oxidants.11 (A standard is be- by whether an area is in either a nonattain- ing developed for lead.) In each case, the ment or a nondegradation region. Depending standard gives the maximum concentration on the type of facility and its location, pollu- allowed during a given time period, and fre- tion regulations may be imposed by a State or quently places a limit on the number of times local unit of government, by EPA, or by all that the concentration can be exceeded three. On occasion, the emissions of one pollu- within a given time period. tant will be subject to a certain level of control, e.g., a requirement that emissions limita- Classification of an area with respect to tion technology be at least as good as that the ambient air quality for each pollutant has used anywhere in the country; and the emis- important consequences. The Nation is di- sions of another pollutant will be controlled vided into 247 air quality control regions under a totally different regimen or effective- (AQCR) for the purpose of managing pollution ly uncontrolled. control programs at the local level. Compli- ance with an NAAQS is generally measured Mineral access is affected by several im- on an ACQR basis, although smaller area des- portant elements of the clean air regulatory ignations are permitted by EPA for some program. These include: the establishment of pollutants where they form an appropriate NAAQS of performance; prevention of signifi- basis for control of the pollutant. These des- cant deterioration; restrictions on nonattain- ignations are extremely significant. Areas ment areas; and the visibility program. Each that are found by EPA to be in nonattainment of these will be discussed below. Where ap- status are subject to a particular set of re- propriate there will be discussion of the roles quirements under part D of the Act. Areas of Federal land managers in pollution control that meet or exceed standards are subject to and in analysis of State and local regulation the PSD regulations set forth in part C of the in Alaska. All section references are to the Act. Classification of a large area on the Clean Air Act. basis of a highly localized condition could have the effect of placing inappropriate and demanding requirements on areas that did NATIONAL AIR QUALITY not need or deserve them. STANDARDS 12 Alaska is divided into four AQCRS. All Section 109 provides for the development four regions exceed the national standards of national air quality standards for major for particulate, oxidants, nitrogen oxides, pollutants. Two types of ambient air quality and sulfur oxides. The cities of Fairbanks and standards are designated: Anchorage (but not the rest of the two AQCRs in which they are located) are nonattainment 1. Primary standards, which establish the areas for carbon monoxide while the rest of level of air quality necessary with an the State exceeds the national standards. 13 adequate margin of safety to protect Thus Fairbanks and Anchorage will be both human health. nonattainment and nondegradation areas, Ch. 6 Federal Land Planning and Environmental Laws “ 169 while the rest of the State will be a nondegra- A State Implementation Plan (SIP) cannot dation area for all pollutants. Similarly much be approved unless the State has the legal of Arizona has nonattainment status for par- authority to:17 ticulates and oxidants, while the whole State exceeds national standards for nitrogen diox- 1. Adopt emission standards and limita- ide and all but two counties exceed the stand- tions; ard for carbon monoxide. 14 2. Enforce laws and regulations and seek While an attainment or nonattainment injunctive relief; status for an area has an extremely impor- 3. Reduce pollution emissions on an emer- tant regulatory impact on existing sources of gency basis; pollution, it has substantially less importance in the regulation of new sources. With the 4. Prohibit the construction or operation of passage of the 1977 amendments, almost any source that will prevent either the every new source of pollution will undergo a attainment or the maintenance of any stringent preconstruction review regardless air quality standard or that will inter- of whether it is located in an attainment area fere with resources to prevent signifi- or a nonattainment area. The preamble to the cant deterioration; final rule setting forth attainment status 5. Obtain all necessary information; and designations indicates three reasons why this will happen:15 6. Require owners and operators of stationary sources to install emission moni- First, new sources, wherever they propose toring devices. to locate, must be reviewed for their impact on all nearby areas as well as that in which Every implementation plan must indicate they would locate. If an area on which a new how these legal authorities will be used in ex- source would impact is designated different- ecuting a control strategy for each pollutant, ly than the one in which it is located, the Compliance schedules for the gradual abate- designation of the latter would not necessari- ment of major existing sources of pollution ly determine the rules to which the source are central to these control strategies. State would be subject, Second, PSD rules apply in and local officials are primarily responsible any area in which at least one NAAQS is at- for making decisions about the amount that tained, and since virtually every area in the pollution must be reduced by existing facil- country shows attainment for at least one ities. The EPA has the authority to disapprove pollutant, the PSD review will be a requisite virtually everywhere. Finally, case-by-case compliance schedules that, owing to the tim- new source review is necessitated to account ing of extensions, prevent attainment or for the possibility that an area with a par- maintenance of air quality standards. For the ticular designation may encompass “pock- most part, however, it is up to the State to ets” which do not fit the designation, decide the mix of sources to be abated, to what extent, and in what period of time. Within the framework of NAAQS and the STATE IMPLEMENTATION PLANS statutory time period, the State has a choice Section 110 requires each State to submit of options. (When there is, for example, a an implementation plan that sets forth the single large emitter that causes the standards steps it will take to meet both the primary and to be violated, these options obviously become the secondary standards” for each pollutant limited.) A State can also decide how much to that is subject to an NAAQS. The plan must reduce pollution below the existing levels in order to improve the air quality sufficiently to show that it will meet the primary standards within the statutory time limit and the second- allow for new industry and development. ary standards within a reasonable time The timetable for meeting NAAQS in the thereafter. Clean Air Act of 1970 called for attainment in 170. Analysis of Laws Governing Access Across Federal Lands

most regions by 1975, with no extensions ating facilities could be constrained in some beyond 1977. Not only were these deadlines areas by SIP provisions for attaining and generally unmet, but EPA had little effective maintaining NAAQS. For example, in areas authority to enforce them. By 1977, only where the standards for particulate matter about 40 percent of all AQCRs were meeting are frequently exceeded owing to natural the requirements for particulate and photo- phenomena such as duststorms (these occur chemical oxidants, and about 20 to 25 per- in Alaska and in parts of the West), addition- cent did not achieve the standards for sulfur al sources of high dust generation from activ- dioxide and carbon monoxide.18 ities such as surface mining or mine road con- 24 Congress responded by extending the stat- struction and use may be restricted. The de- utory compliance dates for particulate, velopment of mine-associated primary-proc- nitrogen dioxide, and sulfur oxides until essing plants and electric-generating facil- December 31, 1982, and for carbon monoxide ities must satisfy emission standards set forth and photochemical oxidants, until December in the SIP. Those portions of the SIP that deal 31, 1987. In addition, stricter limits were with preconstruction review of new sources placed on such activities as the construction most directly affect the mining industry. of new stationary sources. One provision of 19 the 1977 amendments makes it mandatory PRECONSTRUCTION REVIEW OF for State plans to include an enforceable permit program for regulating the construction, MAJOR NEW STATIONARY modification, or operation of any major sta- SOURCES tionary source in areas that are not in an attainment status or that have pollution levels New facilities, buildings, structures, or in- above the national standard.2o stallations are indicative of industrial devel- The States are responsible for formulating opment and commercial growth. However, implementation plans, but if a plan is deemed they are also potential emitters of air pollu- inadequate, the Administrator of the EPA has tion. The Clean Air Act is intended to en- 21 courage, and if need be compel, the builders the authority to promulgate a plan. In prac- 25 tice, he will normally approve a plan “with of major sources of pollution to use the most exceptions, and only issue whatever provi- advanced technology for pollution control. If sions are needed to meet specific deficien- successful, this will replace existing high- cies.22 His right to promulgate plans is limited pollution installations with a generation of to those regulatory aspects where he can rely low-pollution facilities and provide some lee- on authorities granted by the Act; and while way for future industrial expansion, without he can disapprove any nonregulatory aspect imperiling air quality. of a plan, he cannot issue substitute provisions.23 In other words, if the Administrator The control of new sources is accomplished disapproves of such elements of the plan as by preconstruction review. This is generally numbers, dates, procedures, and sampling undertaken by the State or other local govern- methods he can change them. But if, for ex- ment unit that is responsible for the imple- ample, he finds that a State agency lacks a mentation of air quality plans. There are four particular needed authority, or even that different types of preconstruction review: there is no proper State agency, he cannot in- vest the existing agency with the missing a. Review of new sources to determine power or create a new agency. He can, how- their effect on attainment and main- ever, assume the regulatory function, e.g., re- tenance of NAAQS; quire that permits be filed with EPA. b. Review of new sources for which new The siting of mining operations and associ- source standards of performance have ated primary-processing and electric-gener- been established; Ch. 6 Federal Land Planning and Environmental Laws . 171

c. Review of new sources in a nonattain- 6. Plans for emission reduction during a ment area, where the air does not pollution alert. satisfy the NAAQS; and A permit will not be granted unless it is d. Review of new sources in a nondegra- shown that the source will not interfere with dation area, where the air is cleaner the maintenance of any ambient air quality than the NAAQS. standard or violate any State air quality All four types of review take place in Alaska. regulation. The first three are discussed in this section. A second type of new source review relates to so-called indirect sources of pollution. Preconstruction Review for Effects on These are sources—like stadia, garages, air- Attainment and Maintenance ports, and highways—which attract mobile EPA regulations require preconstruction sources of pollution, mainly automobiles. review of all new sources that might jeopard- Alaska has never adopted regulations for the ize the maintenance of primary and second- review of indirect sources.29 The 1977 amend- ary standards.26 As noted earlier, the Act re- ments severely restricted the authority of the quires that any SIP exhibit adequate State Administrator to require such review.30 While authority to prevent the construction of a a State may choose to undertake indirect source that would interfere with the attain- source review, the Administrator cannot re- ment or maintenance of an air quality stand- quire any such plan or promulgate plans or ard. regulations including such a program. The In Alaska, preconstruction review is ac- only exception is that the Administrator may complished by means of a permit system.27 A promulgate regulations for an indirect source permit is required for any facility that is review of federally funded airports and capable of emitting 25 tons per year of sulfur highways and federally owned and operated oxides or particulate, or 100 tons per year of indirect sources. nitrogen dioxide, carbon monoxide, or hydrocarbons; or any mercury retort; or any fuel- Preconstruction Review of Sources for burning electric-generating facility of more Which New Source Standards of than 250 kilowatts capacity. Performance Have Been Established Before either building or modifying any A State must perform a different precon- such facility, a permit applicant must submit struction review for that class of stationary plans and specifications with the following in- sources for which standards of performance formation: 28 have been established pursuant to section 111 of the Act.31 Before these sources can be 1. Two sets of blueprints; built or modified, it must be shown that, in ad- 2. Maps of the immediate vicinity; dition to not interfering with the attainment or maintenance of any standard, they also 3. An engineering report outlining methods make use of the best available control tech- of operation, quantity and source of ma- nology for reducing pollution. terial processed, use and distribution of processed materials; and a process flow To prevent States from attracting new in- diagram indicating points of emission, dustry by offering “pollution havens, ” Con- including estimated quantities and types gress excluded control of these major air of contaminants emitted; pollution sources from State implementation 4. A description of any air quality control and directed EPA to set national standards. device; These EPA standards cover such mining- related sources as coal preparation plants, 5. An evaluation of the effect on surround- smelters, and electric-generating plants.32 ing ambient air; and Controversy related to mineral development 172. Analysis of Laws Governing Access Across Federal Lands — has centered on smelter and utility regula- benefits significantly outweigh environ- tions, particularly because of the high cost of mental and social costs (only if seeking installing pollution control equipment. 1987 extension); The 1977 amendments established a proc- 4. Planning procedures involving State, re- ess by which the Administrator must, within gional, and local officials; and 4 years, promulgate standards for all other 5. A special permit provision. major stationary sources emitting pollution that may contribute significantly to air pollu- The permit provision allows new source tion. 33 It is possible that these new standards construction only where:35 could include many other processes associ- a. By the time the facility commences op- ated with mineral extraction, refining, and erations, total emissions from it, ex- use. isting sources, and new minor sources will be less than the total emissions Preconstruction Review in from existing sources allowed under Nonattainment Areas the plan required by the section; There are many AQCRs in nonattainment b. The source complies with the more status with respect to one or more criteria stringent of the following: pollutants (including two such instances in i. The most stringent emission limita- Alaska). For this reason, it would be imprac- tion required by any State for such tical to forbid all new development in non- a source, or attainment areas. On the other hand, it would ii. The most stringent emission limita- be both anomalous and economically discrim- tion achieved in practice by such a inatory if complying areas were more resource; and stricted than nonattainment areas with respect to new source construction—a condi- c. The owner or operator of the source tion that may well have occurred in the re- demonstrates that all other major sta- cent past. The 1977 amendments added a tionary sources owned or operated by new section to Title I of the Act that deals him in the State are subject to emission specifically with the problem of development limitations and are in compliance. 34 in nonattainment areas. The purpose of this provision is to combine This section extends the deadlines for technology-forcing requirements with adher- meeting NAAQS to 1982 and 1987. Nonattain- ence to a meaningful compliance schedule ment areas are granted this extension only if and to assure that the beneficiary of such a they develop SIPS that are somewhat more permit is not contributing to pollution else- detailed and constrained than those provided where in the State. Failure to observe the for in section 110. The main features of such stringent conditions of the implementation a plan are: plan will result in the loss of both air pollution grants and Federal highway funds.36 1. A comprehensive, accurate current inventory of actual emissions from all sources; Citizen Suits on Preconstruction Review 2. A vehicle emission control inspection State permits for construction of new sta- and maintenance program (only if seek- tionary sources are subject to judicial review ing 1987 extension); through citizens suits authorized by section 3. An analysis of alternative sites, sizes, 304 of the Clean Air Act.37 Any citizen may production processes, and environmen- challenge, in Federal court, the issuance of a tal control techniques for any proposed State permit for the construction of a new new source which demonstrates that source that will violate ambient air quality Ch. 6 Federal Land Planning and Environmental Laws ● 173

standards. In order to prevail in the action, utilities charged that significant deteriora- the plaintiff must show: (1) that the State tion regulations will unduly restrict the Na- review did not satisfy procedural require- tion’s continuing economic development. ments, e.g., conducting a review before con- They argued that air pollution levels in ex- struction started; (2) that the preconstruction isting “clean” areas should be permitted to review indicated that air quality violations increase to the national ambient air stand- would occur, but the permit was granted ards. anyway; or (3) that the technical data (calcu- lations and dispersion models), on which the The Clean Air Act Amendments of 1977 ex- State relied in determining that no violations panded the nondegradation program and gen- would occur were incorrect.38 A citizen may erally tightened the standards for prevention of significant deterioration. The goals of the not sue for damages, but to enjoin an illegal 41 act or to enforce an administrative authority nondegradation amendments are: to carry out a statutorily mandated action (in 39 1. To protect public health and welfare from legal terms, a nondiscretionary duty). any actual or potential adverse effect, which in the Administrator’s judgment, may reasonably be anticipated to occur PREVENTION OF SIGNIFICANT from air pollution or from exposures to DETERIORATION pollutants in other media, which pollutants originate as emissions to the ambient The development of measures to prevent air, not withstanding attainment and the significant deterioration of air quality in maintenance of all national ambient air existing clean air or nondegradation regions quality standards; has been a controversial chapter in the Fed- Z. To preserve, protect, and enhance the air eral implementation of the Clean Air Act. In quality in national parks, national wilder- December 1974, the EPA issued final regu- ness areas, national monuments, national lations to prevent the significant deteri- seashores, and other areas of special national or regional natural, recreational, oration of air quality in areas cleaner than scenic, or historic value; the NAAQS. These regulations were issued as a result of a 1973 Supreme Court decision40 3. To ensure that economic growth will occur affirming lower court decisions that the Act in a manner consistent with the preserva- intended not only that polluted air be up tion of existing clean air resources; graded to human health-related national 4. To assure that emissions from any source standards, but also that air in regions cleaner in any State will not interfere with any than those standards should be protected. portion of the applicable implementation plan to prevent significant deterioration Under these regulations, the States were re- of air quality for any other State; and quired to classify areas that met or exceeded national primary or secondary standards as: 5. To assure that any decision to permit increased air pollution in any area to which Class I where only a very small annual incre- this section applies is made only after ment of degradation was allowed; Class II careful evaluation of all the consequences where a moderate annual increment was al- of such a decision and after adequate pro- lowed; or Class III where degradation to na- cedural opportunities for informed public tional standards was permitted. participation in the decisionmaking process. Opponents of the Court decision and the significant deterioration regulations argued The amendments further provide that all SIPS that it was not the intent of Congress under must contain emissions limitations and other the Clean Air Act to address any areas where measures necessary to prevent the signif- national primary and secondary standards icant deterioration of air quality in each are being maintained. Advocates of industrial region which, on the basis of available infor- development, mining interests, and electrical mation, cannot be classified for ambient air — — — — —

174 ● Analysis of Laws Governing Access Across federal Lands

quality levels of particulate or sulfur oxides; of natural gas or petroleum products under or which has ambient air quality levels above orders issued under provisions of the Energy any national primary or secondary air quality Supply and Environmental Coordination Act standards (other than for sulfur oxides or of 197446 or from a natural gas curtailment particulate matter); or for which there is in- plan; particulate matter attributable to con- sufficient information to be classified as not struction or other temporary emissions ac- meeting such national primary standards.42 tivities; and emissions from new sources out- All existing international parks, national wil- side the United States. Such orders by State derness areas of over 5,000 acres, national Governors become effective after submission memorial parks of over 5,000 acres, and na- to and approval by the EPA Administrator. tional parks of over 6,000 acres were immedi- The amendments also provide that, except ately designated as Class I areas, and their for lands within the boundaries of Indian status cannot be changed. There are 158 43 reservations, a State may redesignate any mandatory Class I areas, four of which are areas as Class I that it deems appropriate. in Alaska: Mount McKinley National Park, Other Federal areas may be redesignated 1,939,493 acres; Bering Sea Wilderness, only as Class I or Class 11. These include: 41,113 acres; Simeonoff Wilderness, 25,141 acres; and Tuxedni Wilderness, 6,402 acres. a. Any national monument, national prim- Other areas previously designated as Class I itive area, national preserve, national under the EPA regulations promulgated recreation area, national wild and sce- before the 1977 amendments were also imme- nic river, national wildlife refuge, or 44 diately designated as Class 1. These areas, national lakeshore exceeding 10,000 however, may be redesignated by the States acres in size;47 and under procedures set forth in the Act. All other areas, (identified under sections 107(d) b. Any national park or wilderness area (1)(D) or (E)) will be Class II and maybe redes- exceeding 10,000 acres, and estab- ignated as provided. lished after the enactment of the Clean Air Act Amendments of 1977.48 The amendments specify the maximum al- Most of the large blocks of Alaska Lands lowable increase in concentration for sulfur that would be transferred into conservation oxides and particulate matter (in micrograms units by pending legislation could be redes- per cubic meter) for each class. A ceiling was 45 ignated by the State. They are not mandatory established for other air pollutants. The Class I areas. They are now and will on trans- maximum allowable concentration in any fer be Class II lands and they may not be nondegradation area must not exceed a con- designated as Class III under any condi- centration for each pollutant for each period tions. They are not required to be designated of exposure, equal either to the concentration Class I. permitted under the national secondary ambient air quality standard or to the concentra- Any other clean air areas may be redesig- tion permitted under the national primary air nated as Class III if:49 quality standard, whichever is lower. 1. The Governor specifically approves the redesignation after consultation with ap- The Governor of each State with an EPA propriate legislative representatives approved implementation plan may, after and with final approval of local govern- holding public hearings, issue orders ex- ment units representing a majority of the cluding certain pollutants from being counted residents of the area to be redesignated; in determining compliance with nondegradation standards. These excluded pollutant con- 2. The redesignation will not raise or concentrations include: stationary source emis- tribute to any pollutant level to exceed sions resulting from converting from the use the maximum allowable increment or Ch. 6 Federal Land Planning and Environmental Laws ● 175

ceiling concentration permitted under Preconstruction Permitting of Major classification of any other area; and Emitting Facilities 52 3. Other procedural and substantive re- Section 165 of the Clean Air Act, as quirements for redesignation under amended, requires that any major emitting State and Federal law are satisfied. facility in a nondegradation area on which construction is started after the passage of The Clean Air Act amendments set forth the 1977 amendments must obtain a permit. requirements for State redesignation pro- The applicant must demonstrate that emis- cedures. Prior to redesignation of any area as 50 sions from the new facility will not exceed or Class I, II, or III, the State must: contribute to air pollution in excess of the maximum allowable concentrations for any (i) Have an approved SIP; pollutant in any clean air area, more than (ii) Prepare a satisfactory description and once per year, nor exceed NAAQS or other applicable emission control standards issued analysis of economic, social, health, en- 53 vironmental, and energy effects of the under the Clean Air Act in any AQCR. proposed redesignation, and make such The applicant for the proposed new facility analysis available to the public; must utilize the best available control tech- (iii) Require redesignation authorities to re- nology for each regulated pollutant either view and examine the effects docu- emitted or resulting from the facility. Ap- ment; propriate monitoring procedures must be carried out to measure the impacts of emissions (iv) Provide public notice and public hear- in affected areas. The air quality impacts ings in areas to be redesignated and arising from any growth associated with such areas affected by redesignation; a facility must also be analyzed. Permit applications are to be granted or denied within (v) Provide that the plans of any new or 1 year after the completed application has modified major emitting facility that been filed. A review must include the re- may be permitted to be constructed or quired analysis, consultation with appropri- operate under Class III designation on- ate Federal officials, and public notice and ly, must be made available to the public hearing. prior to the hearing and redesignation pursuant to regulations issued by the For Class I areas, the permit must have the EPA; and approval of the appropriate Federal land manager. A permit will be issued if it has (vi) Before public notice and hearing, notify been shown that the proposed emissions will the appropriate Federal land manager not adversely affect the air quality and if a proposed redesignation includes related values of the Federal Class I area. A any Federal lands, and allow adequate permit may also be issued for an emitting opportunity for comment and recom- facility that would exceed the maximum mendations (not more than 60 days). allowable increments if the Federal land The State must publish any inconsisten- manager certifies that the emissions would cy between the redesignation and the have no adverse impact on the values of the recommendations of the Federal land Class I area. manager with the reasons for such inconsistency. The permit applicant may request a variance from the State Governor if a Federal The EPA Administrator may disapprove any land manager refuses a certification that the redesignation only if he finds, after public emissions from a proposed facility will have notice and hearing, that the procedural reno adverse impact on the air quality and requirements were not satisfied.51 lated values of a Federal Class I area even 176 ● Analysis of Laws Governing Access Across Federal Lands

though the emissions would cause or contrib- Administrator’s duty to proceed with the reg- ute to concentrations that exceed Class I ulations. The States may adopt strategies maximum allowable increments. The appli- other than increments if they accomplish the cant must demonstrate, and the Governor purpose of maintaining air quality. The pro- must find, that the proposed facility cannot posed EPA regulations will provide: be built without the variance, and that in a. Specific numerical measures against Federal Class I mandatory areas, the vari- which permits may be tested; ance will not adversely affect the air quality in the region. Before granting a variance, the b. A framework for stimulating improved Governor must consider the Federal land control technology; manager’s recommendations and obtain his c. Protection of air quality and related concurrence. If the Governor recommends a values; and variance for a Federal mandatory Class I area contrary to the recommendation of a d. Fulfillment of the goals set forth in the Federal land manager, both the Governor’s purposes provision of the Act. recommendation and that of the Federal land Regulations for new air quality standards are manager are to be transmitted promptly to to be followed within 2 years by measures to the President. The President may approve the 57 prevent significant deterioration. The States variance if he finds that it is in the national and the EPA Administrator are authorized to interest. He must act in 90 days to either af- take enforcement action to prevent the con- firm or deny the variance, and his decision is 54 struction of any major emitting facility that final and nonreviewable. does not meet the permitting requirements Any facility operating under a variance and that is proposed to be constructed in a may exceed the maximum allowable incre- “clean air” area not subject to an approved 58 ment for sulfur oxides on not more than 18 implementation plan. days per year, but those emissions may not exceed statutorily specified numerical lim- 55 DUTIES OF THE FEDERAL LAND its. The 1977 amendments set specific nu- MANAGER merical maximum allowable increases for sulfur oxides and particulate matter. Pro- Federal land managers59 and the Federal cedures for establishing regulations for other official directly managing Federal lands have pollutants are set forth in section 166(a) of an “affirmative responsibility” to protect air 56 the amended Clean Air Act. quality and related values, such as visibility, 60 Within 2 years of enactment of the 1977 for any Federal land in a Class I area. Under the 1977 amendments to the Clean Air Act, amendments, EPA is to propose regulations Federal land managers are afforded an op- for preventing significant deterioration portunity to comment and make recommenda- resulting from nitrogen oxides, hydrocar- tions on proposed State redesignations.61 Fed- bons, carbon monoxide, and photochemical oxidants. These regulations would not go into eral land mangers and Federal officials with effect for 1 year. At the end of that year, a direct responsibility for managing Federal revision of SIPS would begin unless there is lands are notified by the EPA of any permit congressional action to the contrary. application for a major emitting facility that may affect Federal lands within a Class I The Administrator is required to report to area.62 The Federal land manager or official Congress if he finds that establishing and im- must notify the EPA Administrator if the plementing regulations to prevent significant emissions from the proposed facility would deterioration caused by the criteria pol- cause or contribute to a change in the air lutants would present special difficulties or quality in the area and identify the potential be impractical. This report does not delay the adverse impacts of such a change.63 Ch. 6 Federal Land Planning and Environmental Laws ● 177

A permit for a major emitting facility may mandatory Class I areas where visibility is an be denied if emissions would exceed the max- important value.68 The Secretary of the In- imum allowable increment for a Class I area, terior has found that visibility is an important or would have an adverse impact on air quali- value in 156 of the 158 mandatory Class I ty in the Federal Class I area even though the areas (the two exceptions are Bradwell Bay, maximum allowable increase is not ex- Fla., and Rainbow Lake, Wis., both wilder- ceeded.64 If, however, the Federal land man- ness areas).69 The inventory has been for- ager certifies that the facility would not warded to the EPA administrator who will adversely affect the air quality and related use it in developing a report and recommen- values of the Federal Class I area, a permit dation to Congress.70 It will also be used for may be issued despite the fact that the emis- promulgating regulations to meet the statu- sions may exceed the maximum allowable in- tory goal of “prevention of any future and creases for sulfur oxides and particulates.65 remedying of any existing, impairment of visi- In such circumstances, the Clean Air Act bility in mandatory Federal Class I areas”71 Amendments specify alternative maximum resulting from manmade pollution. allowable increases for these pollutants, which cannot be exceeded.66 By February 1980, the EPA Administrator is required to promulgate regulations to pre- The Federal land manager must review all vent future, and to remedy existing, impair- national monuments, primitive areas, and na- ments of visibility in mandatory Class I areas. tional preserves and recommend appropriate The regulations shall provide guidelines to areas for redesignation as Class I where air the States and require revision of implemen- quality and related values are important at- 67 tation plans to include requirements for in- tributes of the area. The Federal land man- stallation of the best available retrofit ager shall report to Congress and the State in technology on existing sources that are less 1 year, and shall consult with the State be- 72 than 15 years old. Any exemption from the fore making such recommendation. requirement for retrofit technology requires Under section 169A, the Department of the the approval of the appropriate Federal land Interior must prepare an inventory of all manager. 73

FOOTNOTE REFERENCES FOR CLEAN AIR ACT

‘The Clean Air Act, 42 UiS.C. 74OI et seq. (redesig- pollutants which had an adverse effect on the public nated from 42 U.S.C. 1857 et seq. ) includes the Clean health and welfare and whose presence in the ambient Air Act of 1963, Public Law 88-206 (Dec. 17, 1963], and air resulted from numerous or diverse mobile or sta- amendments made by the Motor Vehicle Air Pollution tionary sources. Criteria documents were prepared Control Act, Public Law 89-272 [Oct. 20, 1965), the reflecting the latest scientific knowledge on the effect Clean Air Act Amendments of 1966, Public Law 89-675 of five pollutants on the public health and welfare. Na- (Nov. 21, 1967), the Clean Air Act Amendments of 1970, tional ambient air quality standards were developed Public Law 91-604 (Dec. 31, 1970), the Comprehensive for six pollutants associated with the criteria Health Manpower Training Act of 1971, Public Law pollutants. Sulfur oxides are measured by sulfur diox- 92-157 (Nov. 18, 1971), the Energy Supply and En- ide, and photochemical oxidants are measured by vironmental Coordination Act of 1974, Public Law ozone and hydrocarbons. 93-319 (June 22, 1974), and the Clean Air Act Amend- 3This discussion is limited to Title I, “Air Pollution ments of 1977, Public Law 95-95 (Aug. 7, 1977). The ma- Control and Prevention, ” and Title III, “Administra- jor components of the Clean Air Act are the Clean Air Act Amendments of 1970 and the Clean Air Act Amend- tion,” of the Clean Air Act. The description of programs under the Act does not include any authorized by Title ments of 1977. H,’’ Emissions Standards for Moving Sources. ” ‘Section 108 of the Clean Air Act, as added by Public Law 91-604, section 48(a), 84 Stat. 1678, Dec. 31, 1970, 4Public Law 93-319, 88 Stat. 246, June 22, 1974, 15 directed the Administrator of EPA to publish a list of U,S.C. 791-798. 178. Analysis of Laws Governing Access Across Federal Lands

5Environmental Quality-1976, Report of the Council standard to emphasize the risks to human health asso- on Environmental Quality, p. 2. ciated with smaller, respirable particulate. See EPA, ‘U.S. Congress, House Subcommittee on Energy and Fugitive Dust Policy; SIP’s and New Source Review, Power, Middle- and Long-Term Energy Policies and Aug. 1, 1977. The EPA decision to exempt fugitive dust Alternatives, Appendix, 94th Cong., 2d sess., March from suface mining operations and haul roads from 1976, at 4. mandatory PSD review has been challenged in court, 7Air QuaMy and Stationary Source Emission Control, ZsThe 1977 amendments define, for the first time in A Report by the Commission on Natural Resources, Na- the statute, major sources, as follows: tional Academy of Sciences, prepared for the Commit- (j) Except as otherwise expressly provided, the tee on Public Works, Serial No. 94-4, (March 1975), at terms ‘major stationary source’ and ‘major emit- 5-195. ting facility’ mean any stationary facility or source ‘Sierra Club v. Ruckelshaus, 344 F. Supp. 253 (1972), of air pollutants which directly emits, or has the aff’d per curiam, 4 ERC 1915 (D.C. Cir. 1972), aff’d sub potential to emit, one hundred tons per year or nom., Fri v. Sierra Club, 412 U.S. 541 (1973). more of any air pollutant (including any major ‘EPA’s PSD policy is set forth at 40 CFR 52.21 (1977). emitting facility or source of fugitive emissions of Some aspects of that policy have already been revised any such pollutant, as determined by rule by the to reflect the 1977 amendments, 43 F.R. 57459, Nov. 3, Administrator). Public Law 95-95, section 301(a), 1977, and EPA has published proposed rules to reflect adding a new section 302(j) to the Act, 91 Stat, other changes made by the amendments, 42 F.R. 57471, 770. 57479, Nov. 3, 1977. Throughout the Clean Air Act, requirements placed ‘“Stationary source is defined as “any building, struc- on new major sources also apply to modifications and ture, facility or installation which emits or may emit additional construction of existing facilities which are any air pollutant, ” section 11 l(a)(3), 42 U.S.C. 7411 major sources. (a~3). 2’40 CFR 51.18. 1lThe standards are set forth at 40 CFR 50.4-50,11. z’18 A.A.C. 50.120. The permit provisions also apply ‘zThe boundaries of Alaska’s four air quality control to the operation of existing facilities. regions are set out at 40 CFR 81.54 (Cook Inlet” In- ZI’18 A.A.C. 50.120(f). trastate AQCR); 40 CFR 81,246 (Northern Alaska In- 2e40 CFR 52.78. trastate AQCR); 40 CFR 81,247 (South Central Alaska 30Public Law 95-95, section 108(e) adding a new sec- Intrastate AQCR): and 40 CFR 81.248 (Southeastern tion l10(a~5) to the Act, 91 Stat. 695, 42 U.S.C. 7410 Alaska Intrastate AQCR). (aX5). 13 Alaska Attainment Status, 40 CFR 81.302. 31 Standards of performance may be found at 40 CFR 14Arizona Attainment Status, 40 CFR 81.303; attain- 60. ment status for all areas may be found at 40 CFR Part 32 Section 111; 42 U.S.C. 1711. 81, Subpart C—Section 107 Attainment Status Designa- s’~blic Law g5-95, section 109(a) adding a new sections, 43 F.R. 8963, Mar, 3, 1978. tion 11 l(f)(l) to the Act establishes this timetable, 91 1S43 F,R. 8963, Mar. 3, 1978. Stat, 697,42 U.S.C. 741 l(f)(l). ’“42 U.S.C. 7410. 34Public Law 95-95, section 129,91 Stat, 745. 1740 CFR 51,11, #Section 173,42 U,S,C. 7503. Iaprogress in the Prevention and Control of Air pO~~U- ‘eSection 176, 42 U.S.C. 7506” tion in 1976, Annual Report of the U.S. Environmental ‘TNational Resources Defense Council, Land Use Con- Protection Agency, (1977), p. 31. trols in the United States, A Citizens Handbook, 1976, 1ePublic Law 95-95, sections 108(a)(3) and (a)(4), pp. 44-45. amending sections l10(a12)(D) and l10(aK2)(E), 42 3aId. at 45. U.S.C. 7410( aX2)(D) and 7410( aX2)(E). 3gId. at 64. Z“Compliance with this provision will require a ‘Sierra Club v. Ruckelshaus, 344 F. Supp. 253, (D.D.C. change in the existing permit provision of Alaska Law, 1972), aff’d per curiam, 4ERC 1915 (D,C. Cir. 1972), 18 A,A,C, 50.120. aff’d by an equally divided court sub nom. Fri v. Sierra ZISection 11O(C)(1), 42 U.S.C, 741 O(C)(1). Club, 412 U.S. 541, (1973). zzsuch promulgations with respect to the Alaskan 1rn- ‘lThe amendments on PSD are continued in SE?ChIl plementation Plan can be found at 40 CFR 52.70. 127 of Public Law 95-95 which adds chapter C to Title I 234(’J CFR 52.02, 52.06. of the Clean Air Act containing new sections 160 to 169, Z4EpA, however, has decided to exempt surface min- 43 U.S.C. 7470-7479. The quoted language is in section ing operations, including haul roads, from mandatory 160,43 U.S.C. 7470, PSD review, 43 F.R. 26397, June 19, 1978. This decision 4Z~blic Law 95-95, section 127(a) adding a new sec- was based on an EPA finding that particulate loadings tion 161 to the Act, 91 Stat, 731,42 U.S.C. 7471. associated with these sources consisted predominantly 43Mandatory Federal Class I areas are listed at 42 of nonrespirable particles, EPA is in the process of F.R. 54760, NOV. 3, 1977. gathering information to determine whether or not to The following list identifies those Federal lands revise its overall Total Suspended Particulate (TSP) which are mandatory Class I areas established by the Ch. 6 Federal Land Planning and Environmental Laws ● 179

1977 Clean Air Act Amendments. These lands may not 2 13,743; Minarets 109,484; Monkelumne be redesignated. Total acreage is shown for each area. 50,400; Pinnacles 12,952; Point Reyes 25,370; States in parentheses indicate interstate park or wil- San Gabriel 36,137; San Gorgonio 34,644; San derness areas; total acreage is listed for only one of the Jacinto 20,564; San Rafael 142,722; South States involved. Warner 68,507; Thousand Lakes 15,695; Ven- tana 95,152; Yolla-Belly-Middle Eel 109,091. NATIONAL PARKS OVER 6,000 ACRES Alaska—Mount McKinley 1,939,493, Colorado—Black Canyon of the Gunnison 11,180; Arizona—Grand Canyon 1,176,913; Petrified Forest Eagles Nest 133,910; Flat Tops 235,230; Great 93,493. Sand Dunes 33,450; La Garita 48,486; Maroon California—Kings Canyon 459,994; Lassen Volcanic Bells-Snowmass 71,060; Mt. Zirkel 72,472; 105,800; Redwood 27,792; Sequoia 286,643; Rawah 26,674; Weminuche 400,907; West Elk Yosemite 759,172, 61,412. Colorado—Mesa Verde 51,488; Rocky Mountain Florida—Bradwell Bay 23,432; Chassahowitzka 263,138. 23,360; Saint Marks 17,746. Florida—Everglades 1,397,429. Georgia— Cohutta 33,776; Okefenokee 343,850; Wolf Hawaii—Haleakala 27,208; Hawaii Volcanoes Island 5,126. 217,029. Idaho—Craters of the Moon 43,243; Hells Canyon Idaho—Yellowstone (Wyoming). (Oregon) 193,840; Sawtooth 216,383; Selway- Kentucky—Mammoth Cave 51,303. Bitterroot (Montana) 1,240,618. Maine—Acadia 37,503. Louisiana—Breton 5,000. Michigan—Isle Royale 542,428, Maine—Moosehorn 7,501. Minnesota—Voyageurs 114,964, Michigan—Seney 25,150. Montana—Glacier 1,012,599; Yellowstone (Wyo- Minnesota—Boundary Waters Canoe Area 747,840. ming). Missouri—Hercules-Glades 12,315; Mingo 8,000. New Mexico—Carlsbad Caverns 46,435. Montana—Anaconda-Pintlar 157,803; Bob Marshall North Carolina—Great Smoky Mountains (Ten- 950,000; Cabinet Mountains 94,272; Gates of nessee). the Mountain 28,562; Medicine Lake 11,366; Oregon— Crater Lake 160,290. Mission Mountains 73,877; Red Rock Lakes South Dakota—Wind Cave 28,060. 32,350; Scapegoat 239,295; Selway-Bitterroot- Tennessee-Great Smoky Mountains 514,757. U.L, Bend 20,890. Texas—Big Bend 708,1 18; Guadalupe Mountains Nevada—Jarbridge 64,667. 76,292. New Hampshire—Great Gulf 5,552; Presidential Utah—Arches 65,098; Bryce Canyon 35,832: Can- Range-Dry River 20,000. yonlands 337,570: Capitol Reef 221,896; Zion New Jersey—Brigantine 6,603. 142,462. New Mexico-Bandelier 23,267; Bosque del Apache Virgin Islands—Virgin Islands 12,295. 30,850; Gila 433,690; Pecos 167,416; Salt Creek Virginia— Shenandoah 190,535. 8,500; San Pedro Parks 41,132; Wheeler Peak Washington— Mount Rainier 235,239; North Cas- 6,027; White Mountain 31,171. cades 503,277; Olympic 892,578. North Carolina—Joyce Kilmer-Slickrock 14,033; Lin- Wyoming— Grand Teton 305,504; Yellowstone ville Gorge 7,575; Shining Rock 13,350; Swan- 2,219,737. quarter 9,000. North Dakota—Lostwood 5,577. NATIONAL WILDERNESS AREAS OVER 5,000 Oklahoma—Wichita Mountain 8,900. ACRES Oregon—Diamond Peak 36,637; Eagle Cap 293,476; Alabama—Sipsey 12,646, Gearhart Mountain 18,709; Kalmiopsis 76,900; Alaska—Bering Sea 41,113; Simeonof 25,141: Tux- Mountain Lakes 23,071; Mount Hood 14,160; edni 6,402. Mount Jefferson 100,208; Mount Washington Arizona—Chiricahua National Monument 9,440; 46,116; Strawberry Mountain 33,003; Three Chiricahua 18,000; Galiuro 52,717; Mazatzal Sisters 199,902. 205,137; Mt. Baldy 6,975; Pine Mountain South Carolina—Cape Remain 28,000. 20,061; Saguaro 71,400; Sierra Ancha 20,850; South Dakota—Badlands 64,250. Superstition 124,1 17; Sycamore Canyon 47,757. Tennessee-Joyce Kilmer-Slickrock (North Carolina), Arkansas—Caney Creek 14,344; Upper Buffalo Vermont—Lye Brook 12,430. 9,912. Virginia—James River Face 8,703. California—Agua Tibia 15,934; Caribou 19,080; Washington— Alpine Lakes 303,508; Glacier Peak Cucamonga 9,022; Desolation 63,469; Dome 464,258; Goat Rocks 82,680; Mount Adams Land 62,206; Emigrant 104,311; Hoover 47,916; 32,356; Pasayten 505,524. Joshua Tree 492,690; John Muir 484,673; Kaiser West Virginia—Dolly Sods 10,215; Otter Creek 22,500; Lava Beds 28,640; Marble Mountain 20,000. 180 w Analysis of Laws Governing Access Across Federal Lands

Wisconsin—Rainbow Lake 6,338. fossil-fuel boilers of more than two hundred and Wyoming—Bridger 392,160; Fitzpatrick 191,103; fifty million British thermal units per hour heat in- North Absaroka 35 I,104; Teton 557,311; Wash- put, petroleum storage and transfer facilities with akie 686,584. a capacity exceeding three hundred thousand bar- rels, taconite ore-processing facilities, glass-fiber INTERNATIONAL PARKS processing plants, charcoal production facilities. New Brunswick, Canada—Roosevelt-Campobello Such term also includes any other source with the 2,721. potential to emit two hundred and fifty tons per year or more of any air pollutant. This term shall NATIONAL MEMORIAL PARKS not include new or modified facilities which are North Dakota—Theodore Roosevelt National Memo- nonprofit health or education institutions which rial Park 69,675. have been exempted by the State. Public Law 95-95, section 127(a), 91 Stat. 740,42 U,S,C. 7479(l), 44public Law 95-95, section 127(a) adding a new Sec- 54Public Law 95-95, section 127(a) adding a new section 162(a) to the Act, 91 Stat. 731,42 U,S.C. 7472 (a). tion 165(d)(2)(D)(ii) to the Act, 91 Stat, 737, 42 U.S.C. 4Wublic Law 95-95, section 127(a) adding a new sec- 7475( d12)(D)(ii). tion 163 to the Act, 91 Stat. 732,42 U.S.C. 7473. ss~blic Law g5.g5, section 127(a) adding a new sec- 4615 U.S. C. 792. tion 165(d)(2)(C)(iv) to the Act, 91 Stat. 737, 42 U.S.C. 4ppublic L8W 95-95, section 127(a) adding a new SeC- 7475( d)(2)(c)(iv). tion 164(a)(l) to the Act, 91 Stat. 733, 42 U.S.C. 7474 5Tublic Law 95-95, section 127(a) adding a new sec- (a)(l). tion 166(a) to the Act, 91 Stat. 739,42 U.S.C. 7476. 4Bpublic Law 95-!35, section 127(a) adding a new SeC- ~Tfiblic Law g5-95, section 127(a) adding a new section 164(a)(2) to the Act, 91 Stat. 734, 42 U,S.C. 7474 tion 166(d) to the Act, 91 Stat, 739,42 U.S.C. 7476(d). (a12). Sapublic Law g5-95, section 127(a) adding a new sec- 4g~blic L8W 95-95, section 127(a) adding new Sec- tion 167 to the Act, 91 Stat. 740,42 U,S.C. 7477. tions 164(a)(2)(A), 164(a)(2)(B) and 164(a)(2)(C), 91 Stat. Sgpublic Law 95-95, section 301(a), adding a new sec- 734, 42 U.S.C. 7474( aX2)(A), 7474( aX2)(B), and 7474(a) tion 302(i) to the Act which reads: The term ‘Federal (2)(C). land manager’ means, with respect to any lands in the Sopublic Law 95-95, section 127(a) adding a new sec- United States, the Secretary of the Department with au- tion 164(b)(l) to the Act, 91 Stat. 734, 42 U.S.C. 7474 thority over such lands. 91 Stat. 770.42 U.S,C. 7602(i). (b)(l). ‘public Law 95-95, section 127(a) adding a new sec- sl~blic Law 95-g5, section 127(a) adding a new section 165(d)(2)(B) to the Act, 91 Stat. 736, 42 U.S.C. 7475 tion 164(b12) to the Act, 91 Stat. 735, 42 U.S.C. 7474 (d)(2)(B). (b)(2), ‘*Public Law 95-95, section 127(a) adding a new sec- Szfiblic Law 95-95, section 127(a) adding a new section 164(b)(l)(B) to the Act, 91 Stat. 735, 42 U.S.C. 7474 tion 165 to the Act, 91 Stat. 735,42 U.S.C. 7475. (b)(l)(B). 53 Section 169 defines a major emitting facility for the ‘zPublic Law 95-95, section 127(a) adding a new sec- purposes of provisions relating to the prevention of tion 165(d)(2)(A) to the Act, 91 Stat. 736, 42 U.S.C. 7475 significant deterioration: (d](2)(A]. The term “major emitting facility” means any of eJ~blic Law 95-95, section 127(a) adding a new sec- the following: stationary sources of air pollutants tion 165(d)(2)(C) to the Act, 91 Stat. 737, 42 U.S.C. 7475 which emit, or have the potential to emit, one hun- (d)(2)(C). dred tons per year or more of any air pollutant “Public Law 95-95, section 127(a) adding a new sec- from the following types of stationary sources: tion 165(d)(2)(C)(ii) to the Act, 91 Stat. 737, 42 U.S.C. fossil-fuel fired steam electric plants of more than 7475( d)(2)(C)(ii). two hundred and fifty million British thermal units 8S~blic Law 95-g5, section 127(a) adding a new sec- per hour heat input, coal-cleaning plants (thermal tion 165(d)(2)(C)(iii) to the Act, 91 Stat. 737, 42 U.S.C. dryers), kraft pulp mills, Portland Cement plants, 7475(d)(2)(C)(iii). primary zinc smelters, iron and steel mill plants, G’Public Law 95-95, section 127(a) adding a new sec- primary aluminum ore reduction plants, primary tion 164(d)(2)(C)(iv) to the Act, 91 Stat. 737, 42 U,S,C. copper smelters, municipal incinerators capable 7475(d)(2)(C)(iv). of charging more than two hundred and fifty tons ‘7Public Law 95-95, section 127(a) adding a new sec- of refuse per day, hydrofluoric, sulfuric, and nitric tion 164(d) to the Act, 91 Stat. 736,42 U.S.C. 7475(d]. acid plants, coke oven batteries, sulfur recovery ‘Public Law 95-95, section 128(a), adding a new sec- plants, petroleum refineries lime plants, phos- tion 169 A(aX2) to the Act, 91 Stat. 742, 42 U.S.C. 7491 phate rock processing plants, carbon black plants (a). (furnace process), primary lead smelters, fuel con- @gFinal Identification of Mandatory Federal Class I version plants, sintering plants, secondary metal Areas Where Visibility Is an Important Value, 43 F,R, production facilities, chemical process plants, 7721, Feb. 21, 1978. Ch. 6 Federal Land Planning and Environmental Laws ● 181

roPublicTOpublic Law 95-95, section 128(a) adding a new sec- 72 Public Law 95-95, section 128(a) adding a new section 169 A(a~3)A(aX3) to the Act, 91 Stat. 742, 42 u,s,c,U.S.C. 7491 tion 169A(b), 91 Stat. 743,42 u.s.c,U.S.C. 7491(b). (aX3),(a~3). 73Public Law 95-95, section 128(a) adding a new sec- 71 Public Law 95-95, section l28(a)128[a) adding a new section 169A(c)(3), 91 Stat. 743,42 u,s,c,U.S.C. 7491(c)(3). tion 169 A(aXl)A(a~l) to the Act, 91 Stat. 742, 42 u,s,c,U,S.C. 7491 (aXl),(all).

-1' 182. Analysis of Laws Governing Access Across Federal Lands

CLEAN WATER ACT

Federal concern with water pollution tain mining activities. The Environmental Pro- abatement dates from the Rivers and Har- tection Agency (EPA) will develop guidelines bors Act of 1899,1 which authorized the U.S. for other categories of mining operations in Army Corps of Engineers to issue permits for the near future.4 the discharge of material into navigable waterways if “anchorage and navigation will Many mining operations and procedures not be injured thereby. ” It was not until the associated with access to mineral sites, such Water Quality Act of 1965,2 however, that as roadbuilding and construction activities, are not point sources and do not require Congress addressed the issue of water quality. This Act required that States adopt and NPDES permits. Areawide water treatment meet water quality criteria (subject to Fed- management programs administered by eral approval) for interstate waters within States and other local units of Government, their boundaries. In the absence of State ac- pursuant to section 208 of FWPCA, could po- tion, the criteria would be set by the Federal tentially affect those mining development and Government, which would exercise abate- operation activities that are nonpoint sources ment authority. This approach to pollution of pollution. Because EPA originally limited control has similarities to that taken by the areawide plans to metropolitan areas, until forced to extend them by court order,5 section Clean Air Act. The standards relate to the results of actions by many individual pollu- 208 has not as yet had any effect on mining tion sources, but do not directly regulate activities. State submission of water quality management plans was not required until those sources. November 1, 1978. The Federal Water Pollution Control Act Amendments of 19723 (FWPCA) substantially Many activities related to mineral develop- restructured the Federal water pollution con- ment such as processing, refining, and power trol program. The purpose of the amendments generating may be directly affected by the was to control pollution at its source by re- permit system. But, because implementation quiring water polluters to limit the amount of of FWPCA has been slow, it is difficult to effluent discharged into a body of water. The judge future impacts from experience during Act establishes a permit system—the Nation- its early years. In addition, the amendments al Pollutant Discharge Elimination System introduced by the Clean Water Act of 1977,6 (NPDES)—to oversee the installation of spe- make extrapolation difficult. cified levels of pollution abatement equipment for all point sources of pollution, regardless of the water quality of adjacent FEDERAL WATER POLLUTION bodies of water. (A point source is one that CONTROL ACT discharges effluent through a conduit or pipe.) The water quality standard program is The Federal Water Pollution Control Act also continued. More stringent effluent re- Amendments of 1972 established a complex strictions may be imposed if the source emp- program to clean up the Nation’s waterways. ties into a body of water that does not meet Where previous legislation had concentrated water quality standards. on establishing broad water quality stand- Some mining activities constitute point ards, 7 FWPCA sought to place individualized, sources of pollution that require NPDES per- technological requirements on all polluters, mits. Effluent limitations and standards of and to upgrade these requirements until the performance have been established for cer- ultimate goal of zero pollution discharge into Note: Footnotes for this section appear on pp. 195-197. navigable waters would be achieved. Ch. 6 Federal Land Planning and Environmental Laws w 183

The stated objective of the Act is “to This period has been one of high expecta- restore and maintain the chemical, physical, tion and significant frustration. Water quali- and biological integrity of the Nation’s ty has not improved as rapidly as we had waters. “a To achieve this objective, six na- hoped, and there are still substantial delays tional goals and policies are set forth:9 in fully implementing many sections of the Act. 1. The national goal that the discharge of Two different approaches to controlling pollutants into navigable waters be sources of pollution are found in the Act. eliminated by 1985; They arise from the fundamental distinction, 2. The national goal that, wherever at- both in legal and in practical terms, between tainable, an interim goal of water quali- point and nonpoint sources of pollution. A ty which provides for the propagation of point source is any confined, discrete convey- fish, shellfish, and wildlife; and provides ance such as a pipe, a ditch, or even a float- for recreation in and on water, be ing craft. ” Point sources release a collected achieved by July 1, 1983; stream of pollutants through sewers, pipes, ditches, and other channels. Such streams 3. The national policy that discharge of can be measured and regulated with some toxic pollutants in toxic amounts be pro- precision. They provide a ready locus for the hibited; application of technology to control and 4. The national policy that Federal finan- purify effluents. Nonpoint sources are sites from which there is uncollected runoff, Agri- cial assistance be provided to construct cultural areas, mining operations, and con- publicly owned waste treatment works; struction sites are typical examples of non- 5. The national policy that areawide waste point sources. They present highly complex treatment planning processes be devel- regulatory and technological difficulties, and oped and implemented to assure ade- are subject to less stringent legal controls. quate control of sources of pollution in each State; and The 1972 Act established the following regulatory scheme to control pollution from 6. The national policy that a major re- point sources: search and demonstration effort be made to develop the technology nec- 1. By July 1977, all dischargers other than essary to eliminate the discharge of pol- municipal sewage treatment plants must lutants into the navigable waters, the have achieved the effluent limitations waters of the contiguous zones, and the based on the “best practicable pollution oceans. control technology currently available” (BPT), and public treatment works must FWPCA authorized Federal and State have achieved limitations based on sec- regulatory programs and a large construction ondary treatment .*2 grant program designed to meet a series of 2. By July 1983, nonmunicipal point deadlines for improving water quality con- sources must have in operation the tained in the Act. The EPA and the Army “best available technology economically Corps of Engineers have the primary Federal achievable” (BAT), and municipal sew- responsibility for enforcement and implemen- age treatment plants must have installed tation. State cooperation and planning is also the “best practicable waste treatment an essential component of the total effort. technology.” 13 Many of the water quality deadlines have 3. Special effluent standards for toxic not been met. The Council on Environmental water pollutants based solely on en- Quality (CEQ) characterized progress under vironmental and safety considerations the Act as follows :10 must be met prior to the 1977 deadline.14 184 “ Analysis of Laws Governing Access Across Federal Lands

4. New facilities and installations must PERMIT SYSTEM meet standards of performance based on the “best available demonstrated Permits implement the various standards 15 control technology.“ found in the Act and in regulations; they are 5. Special effluent restrictions, based on also used as enforcement devices. A permit, water quality standards, must be used issued under section 402, which established whenever it becomes apparent that the the National Pollutant Discharge Elimination application of national standards will System (NPDES), is required before any pollu- not meet water quality targets in a given tant (other than dredge and fill materials cov- basin. 16 ered by section 4041) may be discharged from a point source into navigable waters. It is estimated that the 1977 deadlines A permit requires the discharger of pol- were met by 90 percent of industrial pollutants to meet the applicable effluent limita- luters, but by only 40 percent of munic- 17 tions, technology standards, and water quali- ipalities. The control of toxic pollutants was ty goals. Permits are obtained through the less effective; EPA had failed to publish toxic local EPA office or from the State, if the latter effluent guidelines and was under court has qualified to take over the regulatory role. order to develop regulations for 65 toxic 18 It is through the permit process that general pollutants. guidelines are transformed into individual The failure to meet the 1977 deadlines, abatement requirements. Cancellation of per- coupled with new information about the ef- mits for noncompliance is one method of en- fects of less stringently regulated nonpoint forcing the Act. Without a permit and the sources on water quality, raised questions concomitant right to discharge pollutants, about the requirement to implement strict many industrial operations cannot be carried BAT standards by 1983. The National Com- out. mission on Water Quality—established by EPA has identified nearly 65,000 dis- section 315 of FWPCA—issued a report that chargers subject to the NPDES. Through recommended extending the 1977 require- September 1976, 52,723 permits had been ment and postponing the 1983 goals and reissued.21 Issuing permits on a case-by-case quirements for at least 5 years.19 Two other basis often entails much negotiation. There aspects of the pollution control program—the must be an opportunity for a public hearing sewage treatment construction grant pro- before a permit is issued. However, indi- gram and the dredge and fill permit program vidual permits are not subject to the National administered by the Corps of Engineers (the Environmental Policy Act (NEPA) and the sub- 4041 program)—were also subjects of intense mission of an environmental impact state- criticism. These programs, along with the ment is not required.22 BPT and BAT requirements, were viewed as placing unrealistic burdens on those sources A permit will require that a discharger covered by the Act. meet whatever guidelines EPA has established for limiting effluents from industrial Congress responded to many of these prob- operations of that general type. As will be lems with the Clean Water Act of 1977,20 discussed in the next section, EPA has estab- which significantly amended FWPCA. The lished industry-by-industry limitations that amended law further refines the existing specify the maximum permissible discharges regulatory scheme and places increased im- of various pollutants associated with the portance on the control of toxic effluents. On processes used in those industries. But per- the whole, the 1977 amendments provided mits do not simply recapitulate EPA effluent midcourse corrections rather than major guidelines; a discharger maybe subject to ad- changes in goals or objectives. ditional requirements to meet water quality Ch. 6 Federal Land Planning and Environmental Laws “ 185

standards or to prevent degradation of ex- are incapable of restoring water to isting water quality. the designated use); or ● The application of existing standards - Water Quality Standards and would ‘have substantial ‘and wide- Nondegradation spread adverse economic and social The Water Quality Act of 1965,23 required effects (such as a marked increase in the States to adopt water quality standards unemployment, not due to other fac- for interstate waters, for the first time. Sec- tors, over an extensive area, for more tion 303 of FWPCA continued those stand- than 1 year). ards; in addition, the States were required to Before a State can issue a permit for dis- 24 develop standards for intrastate waters. If a charging a pollutant under section 402 it State should fail to establish adequate stand- must have a program for review and revision ards for either category, EPA is authorized to of water quality standards.26 Once a water do so in its stead. Periodically, the States quality standard is established, a State must must review and revise their water quality identify areas for which the 1977 effluent. standards. The following guidelines for State limitations are not sufficiently stringent to im- review and revision have been established by 25 plement the applicable water quality stand- the EPA: ard.27 For such areas, the State must deter- 1. The States must review their water mine the total maximum daily load of a pollut- quality standards every 3 years and ant that is consistent with the applicable revise them where appropriate. water quality standard, This information is used to set more stringent permit require- 2. Water quality standards must protect ments. the public health and welfare, and provide protection for downstream water The water quality standards form the basis quality standards. of a program designed to prevent the degradation of presently clean waterways. The an- 3. The States must upgrade existing water tidegradation policy has several important quality standards where current water elements. The regulations provide, without quality supports higher uses than those qualification, that “No further water quality presently designated. degradation which would interfere with or 4. The States must upgrade existing water become injurious to existing instream water quality standards to achieve the Act’s uses is allowable.”28 Thus, if a particular 1983 goal of fishable and swimmable body of water in its existing condition could waters where attainable. Attainability is be used for sport fishing, it cannot be de- to be determined on the basis of en- graded in any way that would reduce its suit- vironmental, technological, social, eco- ability for this activity. Similarly, if a body of nomic, and institutional factors. water is suitable for the propagation of fish, shellfish, or wildlife, for swimming, or for 5. The States may downgrade existing drinking water supply, then it must remain water quality standards only on demon- suitable for these and any other possible uses strating that: for which it is now fit. This does not mean ● Existing standards are not attainable that water quality may not deteriorate at all; because of natural conditions (such as small increases in pollutant loads may not be leaching from natural heavy-metal inconsistent with protecting a possible pres- deposits); ent use for a body of water.

● Existing standards are not attainable With one exception, the regulations do not because of irreversible man-induced permit any increase in pollutant loads in conditions (as when known methods those high-quality waters that currently exceed the levels needed to support recreation result of necessary and justifiable economic and the propagation of fish, shellfish, and or social development.”29 It is qualified in two wildlife in and on the water. That exception respects. The exception cannot be applied at permits a State to decide, after public partic- all to “high-quality waters which constitute ipation, “to allow lower water quality as a an outstanding national resource, such as Ch. 6 Federal Land Planning and Environmental Laws ● 187

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Alaska’s rivers and streams are subject to rapid changes in depth, rate of flow, and sediment load due to natural conditions 188. Analysis of Laws Governing Access Across Federal Lands waters of National and State parks and wild- 2. Undertake inspections and monitoring; life refuges, and waters of exceptional rec- 30 3. Ensure that notice of permits is given to reational or ecological significance, ” and it the public, the Administrator, and other cannot be applied in any way that allows affected States; water quality to fall below the levels needed to protect fish, wildlife, and recreation in and 4. Reduce permit violations by enforcing on the waters. These provisions of the anti- civil or criminal penalties; and degradation policy protect waters not only 5. Ensure that adequate notice is given of from industrial expansions and sewage treat- all materials introduced into publicly ment plants, but also from commercial, agri- owned treatment works. cultural, construction, and forestry sources. Even when a State has assumed the admin- The EPA regulations provided for imple- istration of the NPDES, the EPA Administra- mentation of the national nondegradation pol- tor may object to the issuance of any par- icy in three stages: ticular permit and prevent it from going into 33 ● By April 26, 1976, each State was re- effect. He also has the authority to with- quired to have developed and submitted draw approval of a State permit program if to EPA for approval a “State continuing the State’s administration of the program planning process” containing a schedule fails to meet the requirements of section for the development and adoption of a 402.34 statewide policy on antidegradation. Certification for Federal Licenses ● Between April and December 1976, each State was required, after public hear- Before the granting of a Federal license or ings, to adopt the new statewide policy permit to conduct an activity that involves the on antidegradation. This policy had to be discharge of pollutants into navigable waters, submitted to EPA for approval and to be the applicant must present the certification 35 at least as protective as the national required by section 401. The certificate is to policy. be issued by the State in which the discharge

● originates, if that State administers the By July 1, 1977, the new statewide anti- NPDES, if it does not, then the certification degradation policy had to go into effect. must be given by EPA. A certificate must After that date, all proposed activities, show that the activity for which a Federal which would increase water pollution, license or permit is sought will comply with have to be screened for consistency with all applicable effluent limitations, water Federal-State antidegradation require- quality standards, pretreatment and toxic ef- ments. fluent restrictions, and standards of performance.36 State Permit Programs A State may assume NPDES responsibil- EFFLUENT LIMITATIONS 31 ities—28 have already done so —if, in addi- The Clean Water Act, unlike its predeces- tion to having developed a continuing plan- sors, focuses on the operations of the polluter ning process (pursuant to section 303 (e)), it 32 and not just on the resultant water quality. has the authority to do the following: Specific limits on effluents are prescribed 1. Issue permits, for a period not exceeding and must be adhered to by individual pol- 5 years, to ensure compliance with ef- luters. These limitations are enforced by the fluent limitations, water quality stand- NPDES permit program administered by ards, standards of performance, toxic either the EPA or a State. No discharge of any and pretreatment standards, and ocean pollutant from a point source is allowed un- discharge criteria; less a permit has been granted.37 Such per- Ch. 6 Federal Land Planning and Environmental Laws ● 189

mits must contain schedules of compliance tion, particularly from toxic effluents. The which guarantee that the applicable effluent major thrust of the Act is aimed at controlling limitations will be met. point sources that discharge from discernible, confined, and discrete conveyances. The limitation of effluents is essential for implementing the Act and attaining water Nonpoint sources, which account for the quality goals:38 bulk of conventional pollutants affecting water quality, include surface runoff from ur- The term, ‘effluent limitation, ’ means any restriction established by a State or by the ban and agricultural sources, the entry of air Administrator on quantities, rates, and con- pollutants into waterways through dry fall- centrations of chemical, physical, biological, out, and precipitation and soil runoff-in- and other constituents which are discharged cluding runoff from mining and construction from point sources into navigable waters, the activities. waters of the contiguous zone, or the ocean, including schedules of compliance, Under the Act, point and nonpoint sources are subject to different treatment. Point In practice, effluent limitations are devel- sources are regulated by a permit program oped by EPA on an industry-by-industry based on uniform technology-based stand- basis. Prior to the 1977 amendments, they ards that is designed to reduce sharply pre- defined the pollution loads allowable under vious pollution. Nonpoint sources, on the the 1977 standard of “best practicable tech- other hand, are not regulated by such specific nology” and the 1983 standard of “best Federal standards. This is primarily because available technology economically achiev- discharges from these sources are diffuse, able. ” These guidelines will be revised to difficult to monitor, and dependent on un- meet the 1984 standards discussed below, controllable climatic events (as well as and new tests added for the different classes geographic and geologic conditions), and may of regulated pollutants. differ greatly from place to place. Point Sources Industrial point sources include all point sources other than publicly owned treatment The Act establishes four major classes of works. Under FWPCA, the effluent limita- pollutant sources, each of which is subject to tions required that industrial point sources different standards and deadlines, and is apply the BPT as determined by EPA, before regulated by different Federal and State July 1, 1977, and the BAT by July 1, 1983. agencies. The four classes are: (1) industrial point sources, (2) municipal point sources, (3) The 1977 amendments made several im- nonpoint sources, and (4) dredge and fill portant changes in this procedure. The July materials. A point source is defined in the Act 1977 BPT deadline has been extended until as follows:39 “The term point source means April 1, 1979, for those operators of point sources who demonstrated a good faith effort any discernible, confined and discrete con- 40 veyance, including but not limited to any pipe, to achieve compliance. The BAT standards ditch, channel, tunnel, conduit, well, discrete and deadline have both undergone a complete fissure, container, rolling stock, concentrated revision. Pollution from industrial point animal feeding operation, or vessel or other sources is now divided into three classes— floating craft, from which pollutants could be toxic, conventional, and nonconventional. discharged. ” Return flows from irrigated Each of these is treated differently. agriculture are specifically excluded from The Act defines toxic pollutants as:41 the definition of point source, The term ‘toxic pollutant’ means those Point sources, which are usually asso- pollutants, or combinations of pollutants, in- ciated with industry and sewage treatment cluding disease-causing agents, which after plants, tend to be responsible for local pollu- discharge and upon exposure, ingestion, in- 190 ● Analysis of Laws Governing Access Across Federal Lands

halation or assimilation into any organism, The cost test for conventional pollutants either directly from the environment or in- is a new test. It is expected to result in a de- directly by ingestion through food chains, termination of reasonableness, which could will, on the basis of information available to be somewhat more than best practicable the Administrator, cause death, disease, be- technology or could be somewhat less than havioral abnormalities, cancer, genetic best available technology for other than con- mutations, physiological malfunctions (in- ventional pollutants. The result of the cost eluding malfunctions in reproduction), or test could be a 1984 requirement which is no physical deformations, in such organisms or more than that which would result from best their offspring. practicable technology but also could result in effluent reductions equal to that required Sixty-five named toxic poll utants, which were in the application of the best available originally the subjects of an out-of-court set- technology. tlement against EPA, must meet the BAT standards by July 1, 1984.42 Additional toxic Nonconventional pollutants—those classi- pollutants, which are not on this list, must fied as neither toxic nor conventional—will meet BAT standards within 3 years after ef- be subject to the BAT standard requirements fluent limitations are established.43 no later than July 1, 1987.47 However, the 1977 amendments provide for a waiver or The “conventional pollutants” include but modification of such requirements for the are not limited to “biological oxygen demand- nonconventional pollutants where the following, suspended solids, fecal coliform, and ing conditions are met:48 pH.”44 They are subject to effluent limitations that require the application of the “best con- 1. The State concurs in the waiver. ventional control technology” by July 1, 1984. 2. The requirements are, at a minimum, as This new standard takes into account a stringent as the BPT standard or any number of factors that were not considered in 45 special July 1977 limitations for meeting developing the BAT standards. These are: water quality standards. Factors relating to the assessment of best 3. No other point or nonpoint source will conventional pollutant control technology (in- face additional cleanup requirements cluding measures and practices] shall in- due to the waiver. clude consideration of the reasonableness of the relationship between the costs of attain- 4. The waiver will not interfere with meeting a reduction in effluents and the effluent ing the 1983 goal of protected public reduction benefits derived, and the compar- water supplies and fishable and swim- ison of the cost and level of reduction of such mable waters. pollutants from the discharge from publicly owned treatment works to the cost and level The waiver provision appears to reflect the of reduction of such pollutants from a class judgment that the nonconventional pollutants or category of industrial sources, and shall are less likely than other pollutants to pose a take into account the age of equipment and serious threat to water quality. The toxic facilities involved, the process employed, the pollutants present a more immediate danger engineering aspects of the application of to any humans, fish, or wildlife that come in various types of control techniques, process contact with a body of water containing one changes, nonwater quality environmental im- or more of these substances. The conven- pact (including energy requirements), and such other factors as the Administrator tional pollutants, which produce their effects deems appropriate. over a longer time period, can cause eutrophi- cation, odor, nonpotability, and a decreased The Conference Report on the Clean Water ability to support plant and animal life, A Act of 1977 indicates that this standard is in- third type of pollutant, heat or thermal pollu- tended to be less stringent than the BAT tion, which is regulated under the Water standard in some, if not most, cases:46 Quality Act of 1965 and section 303 of Ch. 6 Federal Land Planning and Environment/ Laws ● 191

FWPCA, can also have deleterious effects on be waived where the treatment works that plant, fish, and wildlife. further processes the discharge from an industrial point source is able to remove New Source and Pretreatment Standards pollutants covered by the pretreatment standards .55 The Act imposes additional requirements on two important types of industrial point sources: newly constructed sources and MUNICIPAL POINT SOURCES sources that discharge into publicly owned treatment works. Section 30649 of the Act requires the Administrator to establish stand- Municipal sewage systems and treatment ards of performance for newly constructed plants are both affected by regulatory and sources of pollution and specifies 27 cat- construction grant programs established by egories of sources for which standards will the Act. Municipal waste waters include be developed.50 These include steam electric wastes from homes and commercial estab- powerplants and factories for the manufac- lishments tied into sewage systems, some in- ture of nonferrous metals, phosphate, and dustrial wastes that are also tied in, and the ferroalloys. EPA may add other categories ground water and runoff from precipitation where appropriate. that enters combined sewage and drainage systems. Municipal sewage treatment plants New source standards of performance ap- are usually designed to remove suspended ply the following requirements :51 solids and normal organic wastes, and to Standard of performance means a stand- reduce the basic oxygen demand (BOD). There are two traditional types of municipal ard for the control of the discharge of 56 pollutants which reflects the greatest degree sewage treatment—primary and secondary: of effluent reduction which the Admin- In primary sewage treatment, suspended istrator determines to be achievable through solids are allowed to settle. About 60 percent application of the best available demon- of the suspended solids is normally removed strated control technology, processes, opin this process, which also removes about 30 erating methods, or other alternatives, in- percent of BOD. Secondary treatment is a mi- cluding, where practicable, a standard per- crobiological digestion process. This process mitting no discharge of pollutants. enhances the BOD reduction to 85 percent or In practice, standards of performance have more and the solids removal to 90 percent or often been equivalent to the 1983 BAT limita- more. Both primary and secondary treatment tions developed for existing industries.52 Any reduce the BOD in waste water before dis- newly constructed source which complies charge by removing organic matter. with an applicable standard of performance The 1972 Act required all municipal point is not subjected to more stringent standards sources to utilize secondary treatment by July during the first 10 years of its operation.53 1977, and to use the “best practicable waste Pretreatment standards are designed to treatment technology over the life of the limit the introduction into publicly owned works” no later than July 1, 1983. To facil- treatment works of those pollutants that can- itate the large construction and modifications not be treated by them.54 Publicly owned program required to meet these goals, Title II of FWPCA established an $18 billion con- treatment works—which are also regulated struction grant program for municipalities by the Act—must meet standards that re- seeking to upgrade the quality of publicly quire the removal of specified pollutants. The owned treatment facilities. pretreatment standards ensure that pollutants such as toxic effluents, which cannot Mining operations are not directly affected be processed, are not fed to them. The 1977 by sewage treatment regulations. But re- Act allows the pretreatment requirements to quirements for municipal waste treatment 192 ● Analysis of Laws Governing Access Across Federal Lands could have an impact on the potential for min- delays, the Clean Water Act provided exten- eral development. Mine development may sions of the 1977 secondary treatment re- often lead to the creation of new communities quirements for any municipal treatment plant or the expansion of existing ones beyond the where construction has not been completed capacity of their sewage facilities. Taxes, or where Federal funds have been held up.59 zoning, and land use plans will reflect this. The extension may last until July 1, 1983, provided that the treatment works will comply To qualify for receipt of construction with the 1983 best practicable waste treat- grants, every State or local governmental unit ment standard. In addition, industrial point or authority that is responsible for waste dis- sources, that had planned to meet 1977 posal is required to develop areawide waste 57 standards by discharging into municipal treatment plans and practices. Section 208 treatment works are granted an extension for provides for the identification of areas with the same time period for which the treatment substantial water-quality control problems works receives its extension. and for the creation of management and planning agencies in each of these identified areas. In other areas (generally rural areas), Nonpoint Sources the State must act as a planning and management agent. The planning agencies, which are Quantities of pollutants reach rivers and funded by Federal grants, are required to put streams without ever flowing through pipes, into operation a “continuing areawide waste sewage plants, or outfall structures. Non- treatment management planning process. ” point sources of water pollution—including This process must include:58 runoff from such diffuse sources as urban, agricultural, silvicultural, mining, and con- 1. Management programs that are capable struction activities-have increased signif- of meeting the sewage treatment needs icantly over the past several years. As an in- of the area over a 20-year period; dication of the extent of this problem, it has 60 2. A regulatory program to control the lo- been estimated that: cation, modification, and construction of facilities that discharge water pollu- 1. Storm-generated discharges account for tants; and between 40 and 80 percent of the annual total of oxygen-demanding materials; 3. Programs—including land use requirements—to control such nonpoint sources 2. Practically the entire 97 percent of the of pollution as agriculture, mining, and Nation’s areas in rural land is a poten- construction. tial nonpoint source of pollution; over 400 million acres are in cropland, which Plans under section 208 must have been sub- delivers 2 billion tons of sediment an- mitted to EPA by November 1, 1978. State nually to streams and lakes; agencies that undertake planning and any local agency designated after 1975 must sub- 3< Animal wastes of livestock alone are mit section 208 plans within 3 years of first estimated at 2 billion tons, equivalent to receiving a planning grant. 10 times that produced by humans; and Section 208 planning has taken longer to 4. Total phosphorus emissions from non- implement than was originally foreseen in point sources have been estimated at 1972 because of delays in the entire munic- 800,000 tons per year. ipal waste control program. The delays were caused, in part, by the Presidential impound- Nonpoint sources are regulated at the ment of construction grant funds, and in part State and local levels by means of section 208 by EPA’s failure to obligate the funds when waste treatment management plans. The Act they were made available. In response to the states that a 208 plan must include:61 Ch. 6 Federal Land Planning and Environmental Laws .193

A process to (i) identify, if appropriate, nificantly affect the environment are subject mine-related sources of pollution including to NEPA; therefore, the Corps must prepare new, current, and abandoned surface and an environmental impact statement before is- underground mine runoff, and (ii) set forth suing a permit. procedures and methods (including land use requirements) to control, to the extent feasi- When the Act was passed, the Corps inter- ble, such sources. preted its jurisdiction to mean those waters Another relevant provision of section 208 re- that had traditionally (since 1899) been clas- quires similar treatment of construction ac- sified as “navigable.” For this reason, the tivity related sources of pollution.62 Corps did not assume Federal regulatory jurisdiction over extensive amounts of wetlands It is uncertain, at present, what effect non- throughout the country. point source controls will have on mineral access. Many areas have not as yet submitted On March 27, 1975, as a result of a suit section 208 plans. The guidelines prepared by (Natural Resources Defense Council v. Cal- the EPA have focused mainly on urban prob- laway), 68 the Corps was ordered to expand its lems. regulations beyond its traditional definition 63 of navigability. Regulations published on July The 1977 amendments include a provision 25, 1975, established a three-phase imple- that allows EPA to develop regulations pre- mentation schedule for the Corps’ expanded scribing “best management practice” to con- jurisdiction over the dredge and fill permit trol the nonpoint discharge of toxic and haz- program. 69 Phase I, which went into effect in ardous materials associated with industrial July 1975, required permits for discharges of manufacturing or treatment processes. No dredge and fill into traditional navigable regulations have yet been issued under this waters and their adjacent wetlands. Phase II, section. The Conference Report indicates that which took effect in September 1976, ex- the intent of the provision “is to control run- panded the Corps’ jurisdiction to include pri- off of toxic and hazardous materials from in- mary tributaries of traditionally navigable dustrial sites resulting from poor housekeep- 64 waterways, natural lakes greater than 5 ing procedures. " Mining operations could be acres in surface area and their adjacent wet- subject to regulations under this provision. lands. Finally, Phase III, which took effect in July 1977, included all waters up to the head- Dredge and Fill Operations waiters where the stream flow is less than 5 The Army Corps of Engineers was first cubic feet per second. given regulatory authority over the disposal The expansion of the definition of nav- of dredge and fill material into navigable igable waters raised the possibility that many waters by the Rivers and Harbors Act of 65 hitherto unregulated activities, as well as ac- 1899. Section 404 of FWPCA continued that tivities with little potential effect on water authority and provides that the Secretary of quality, would require +104 permits. Par- the Army, acting through the Chief of Engi- ticular concern was expressed for conven- neers, may issue permits, after notice and optional farming, ranching, maintenance, and portunity for public hearings for the dis- construction activities. The 1977 amend- charge of dredged and filled materials into ments significantly altered the scope of ac- the navigable waters at specified disposal 66 tivities subject to permit requirement. The sites. following activities were exempted:70 Permits issued by the Corps of Engineers for dredge and fill materials require that 1. Normal farming, silviculture, and ranch- operations under the permit comply both with ing; any effluent limitations and with water quali- 2. Maintenance of dikes, dams, levees, and ty standards.67 Permits for actions that sig- transportation structures; 194 ● Analysis of Laws Governing Access Across Federal Lands

3. Construction of farm or stock ponds and regulations are found in 40 CFR Part 436, maintenance of drainage ditches; “Mineral mining and processing point source category, ” and 40 CFR Part 440, “Ore mining Temporary sedimentation basins on a 4. and dressing point source category. ” These construction site; and existing regulations are narrow in scope. As 5. Farm roads, forest roads, and tempo- of June 1978, no standards of performance, rary roads for moving mining equipment pretreatment standards or effluent limita- constructed in accordance with best tions reflecting the best available technology management practices. had been established for any mining activity. Those BPT standards that have been estab- These exemptions apply only if the activity lished cover only a small number of dis- does not bring an area of navigable waters charged pollutants. However, for a number of into a use to which it was not previously sub- mining activities, EPA has established a no ject, or does not impair the flow or circulation discharge limit. of navigable waters, or does not reduce the reach of such waters .71 The regulation with the broadest effect is undoubtedly 40 CFR Part 440, Subpart B, The 1977 amendments also allow the is- “Base and precious metals subcategory, ” suance of general permits for any category of which applies to:74 activities that involve the discharge of dredge and fill materials.72 General permits can be a. Nonplacer mines operated to obtain granted for a category of activities which the copper-bearing ores, lead-bearing ores, Secretary of the Army determines are similar zinc-bearing ores, gold-bearing ores, or in nature, cause only minimal adverse envi- silver-bearing ores; ronmental effects when carried out sep- arately, and will have only minimal cumula- b. Mills that employ the froth-flotation tive adverse effects on the environment. No process for beneficiation of copper general permit may last longer than 5 years. ores, lead ores, zinc ores, gold ores, or silver ores; The 1977 amendments also provide for the State to administer both individual and gen- c. Mines and mills that use dump, heap, in eral dredge and fill permit programs in situ leach, or vat-leach processes for phases II and 111 waters after approval of the the extraction of copper; program by the Administrator.73 The State’s d. Mills that extract gold or silver by the authority for the program’s approval is essen- cyanidation process; tially the same one it must have to administer a 402 permit program. e. Mills that extract gold or silver by the amalgamation process; and Dredge and fill operations often accompany roadbuilding or construction, partic- f. Mines or mine and mill complexes ularly near the coast, in wetlands, and in beneficiating gold ores, silver ores, tin areas with many streams and lakes. Although ores, or platinum ores by gravity sep- temporary roads for moving mining equip- aration, including placer or dredge ment do not require permits, other access mining. routes do. Where such operations are part of BPT standards are established for total a project that would have a significant impact suspended solids and pH for all categories on the environment, the Corps must prepare (except for cyanidation process mills and an impact statement before issuing a permit. dump, heap, in situ leach, or vat-leach processes for which no discharge is allowed) .75 Effluent Limits on Mining Activities BPT limits are also placed on discharges of By regulation, EPA has established effluent copper, zinc, lead, cadmium, and cyanide limitations for some mining activities. The from regulated mines and mills.76 Ch. 6 Federal Land Planning and Environmental Laws ● 195

Other subparts of 40 CFR Part 440 estab- 40 CFR Part 436, “Mineral mining and lish BPT effluent limitations for iron ore,77 processing point source category” estab- bauxite,78 ferroalloys, 79 uranium, radium, 80 81 82 lishes effluent limitations for the class of vanadium, mercury and titanium. Each materials generally known, as industrial min- establishes limits on the discharge of sus- erals.94 Most industrial minerals are proc- pended solids (in almost every case no more essed at or near the mine site. Processing can than 30 milligrams per liter) and pH (an al- include slurry transport of ores or interme- lowable range between 6.0 and 9.0), as well diate product. Mine dewatering is often asso- as limits on concentrations of various metals ciated with mining and processing of building in water discharges. For iron ore, limits are materials. set on iron.83 For the bauxite subcategory, limits are set on discharges of iron, lead, and Effluent limitations in Part 436 focus on zinc.84 For the ferroalloy subcategory, limits process-generated waste water, rather than are set for cadmium, copper, zinc, lead, ar- on discharges from mining operations per se. senic, and ammonia discharges.85 In the ura- The term process-generated waste water is nium, radium, and vanadium subcategory, defined as “any waste water resulting from guidelines are established for cadmium, zinc, the transport of ore or intermediate product, arsenic, radium-226, and uranium.86 The mer- air emissions control, or processing exclusive cury ore subcategory establishes limits for of mining.”95 A zero discharge level for proc- discharge of mercury and nickel.87 While the ess-generated waste water pollutants is es- titanium subcategory contains limits on dis- tablished for the following mineral cat- charges of iron, zinc, and nickel.88 In five in- egories: crushed stone, construction sand and stances, the regulations permit no discharge gravel, gypsum, asphaltic minerals, asbestos from certain types of facilities: iron ore mills and wollastonite, barite, fluorspar, borax, employing magnetic or physical methods to potash, sodium sulfate, frasch sulfur, ben- beneficiate ore;89 mines and mills that use tonite, magnesite, diatomite, jade, and novac- dump, heap, in situ leach, or vat-leach meth- ulite. 96 Allowable pollutant discharge levels ods to extract copper;90 mills that extract gold have been established for process waste or silver by cyanidation;91 mills using acid or water and mine dewatering operations for: alkaline leach for extraction of uranium, crushed stone (dewatering only), construction radium, or vanadium;92 and mills ben- sand and gravel (dewatering only), industrial eficiating mercury by gravity separation or sand, phosphate rock, and graphite.97 froth-flotation. 93

FOOTNOTE REFERENCES FOR CLEAN WATER ACT

‘Act of March 3, 1899, section. 13, 30 Stat. 1152, 33 bentonite, magnesite, diatomite, novaculite, tripoli, and U.s.c. 407. graphite; guidelines are planned for trona, lithium, ‘Water Quality Act of 1965, Public Law 89-234, 79 kyanite, aplite, kaolin, feldspar, talc, and garnet. For Stat. 903. the most part, these chapters now contain only 1977 3Public Law 92-500, 86 Stat. 816. BPT standards for the regulated sources. 4EPA effluent limitations that affect mining point 5NaturaI Resource Defense Council v. Train, 396 F. sources are found at 40 CFR 436, “Mineral mining and !hpp. 1386 (D.D.C, 1975). processing point source category,” and 40 CFR Part ‘Public Law 95-217, 91 Stat, 1566, 33 U.S.C. 1251 et 44o. “Ore mining and dressing point source category. ” seq. The latter chapter covers copper, lead, zinc, gold, 7See 33 U.S.C. 1160(c), these standards are continued silver, bauxite, uranium, radium, vanadium, mercury, by section 303 of FWPCA, 33 U.S.C. 1313. and titanium. The former chapter presently covers Osection lol[a), 33 U.S.C. 1251(a). barite, fluorspar, borax, potash, phosphate, sulfur, ‘Section IOl(a~l)-(6), 33 U.S.C. 1251( a)(l)<6). 196. Analysis of Laws Governing Access Across Federal Lands

‘OEnvironmenta~ Quality—1976, the Seventh Annual Slsection 306(all), 33 U.S.C. 1316(a)(l). Report of the Council on Environmental Quality, 4 (1976) 52Environment—1976, at 14. hereafter Environment—1976. ‘Jsection 306(d), 33 U.S.C. 1316(d). ‘lSection 502{14), 33 U.S,C. 1362(14). ~’section 307(b), 33 U.S.C. 1307(b). ‘zSection 301(b)(l), 33 U.S,C. 1o11. ss~blic Law 95-217, section 54(a), 91 Stat. 1591, ‘3Section 301(b)(2), 33 U.S.C, 131 l(b)(2). amending section 307(b)(l); 33 U.S.C. 1307(b)(l). “Section 307(a), 33 U.S.C. 1317(a). s6Environment—~ 976, at 257. ‘sSection 306,33 U.S.C. 1316. ‘Tsection 208, 33 U.S. C. 1288. ‘eSections 301(b)(l) and 303(d), 33 U.S.C. 1311(b)(l) Sgsection 208(b)(2), 33 U.S.C. 1288(b)(2). and 33 U.S.C. 1313(d). ‘gSection 301(i)(l), 33 U.S.C. 131 l(i)(l), as amended by ‘environmental Protection Affairs of the 94th Con- Public Law 95-217, section 45,91 Stat. 1584, gress, p. 97$ ‘Environmental Protection Afjairs of the 94th Con- 1eEnvironment—1976, pp. 16-17, 256-261. gress, p. 91. 19Report to the Congress by the National Commission elsection 208(b)(2)(G), 33 U.S.C. lzee[b)(z)(c), on Water Quality, Mar. 18, 1976, pp. 7-10, ezsectiorl 208(b)(2)(H), 33 U.S.C. lz8@)(z)(W. 3 z“~blic Law gwlp, 91 Stat. 1566, Dec. 27, 1977. ‘ Section 304(d) 33 U,S.C, 1314(d), as added by Public Amends section 518 of FWPCA to provide that the Act Law 95-217, section 50,91 Stat. 1588. may be cited as “The Federal Water Pollution Control ‘House Report 95-830, p. 80. ‘ Act” (commonly referred to as the Clean Water Act). ‘3533 U.s.c. 407. Section 2,91 Stat 1566. eosection 404(a), 33 U.S. C. 1344(a). Z~EnvironmentaJ Quality—1977, Eighth Annua~ Report eTPerrnitS issued under section 404 contain the fOllOw- oj the Council on Environmental Quality (1977) (here- ing general conditions (ENG Form 1721): after Environment— 1977). b. That all activities authorized herein shall, if they zzIdo involve a discharge or deposit into navigable wa- 23Public Law 89-234, 79 Stat. 903. ters or ocean waters, be at all times consistent Z’Section 303(a~2), 33 U.S.C. 1313(a)(2). with applicable water quality standards, effluent 2’40 CFR 130.17, limitations, and standards of performance, prohi- Zasection 303(e)(2), 33 U.S.C. 1313(e)(2). bitions, and pretreatment standards established Z’section 303(d)(l)(A), 33 U.S.C. 1313(d)(l)(A). pursuant to section 301, 302, 306 and 307 of the 2840 CFR 130.17(e)(l). Federal Water Pollution Control Act of 1972 N40 CFR 130. 17(e)(2). (Public Law 92-500; 86 Stat. 816), or pursuant to ‘oId. applicable State and local law, 3’Environment—2 977, at 35. These include California, c. That when the activity authorized herein involves Oregon, Washington, Montana, Colorado, Wyoming, a discharge or deposit of dredged or fill material North Dakota, Nevada, and North Carolina. into navigable waters, the authorized activity 3zSection 402(b), 33 U.S.C. 1342(b). shall, if applicable water quality standards are “section 402(d)(2), 33 U.S. C. 1342(d)(2). revised or modified during the term of this per- 34Section 402(e)(3), 33 U.S,C. 1342(e)(3). mit, be modified, if necessary, to conform with ‘sSection 401(a), 33 U.S. C. 1341(a). such revised or modified water quality standards ‘61d. within 6 months of the effective date of any revi- 37Section 301(a), 33 U.S.C. 131 l(a). sion or modification of water quality standards, Sasection 502(1 1), 33 U.S.C. 1362(1 1). or as directed by an implementation plan con- 39Section 502(14),33 U,S,C, 1362(14). tained in such revised or modified standards, or ‘Section 309(a)(5), 33 U.S. C. 1319 (a)(5), as amended within such longer period of time as the District by Public Law 95-217, section 56(C), 91 Stat. 1592. Engineer, in consultation with the Regional Ad- 41 Section 502(13),33 U.S.C. 1362(13). ministrator of the Environmental Protection 42Section 301(b)(2)(C), 33 U.S,C, loll; added Agency, may determine to be reasonable under by Public Law 95-217, section 42(a), 91 Stat.1582. the circumstances, 43Section 301(b)(2)(D), 33 U,S.C. loll; added d. That the permittee agrees to make every reason- by Public Law 95-217, section 42(a), 91 stat.1583. able effort to prosecute the work authorized 44 Section 304(a)(4), 33 U.S.C. 1314(a)(4), as amended herein in a manner so as to minimize any adverse by Public Law 95-217, section 48(a), 91 Stat.1587. impact of the work on fish, wildlife, and natural 45 Section 304(b)(4), 33 U.S.C. 1314(b)(4), as amended environmental values. by Public Law 95-217, section 48(b), 91 Stat. 1587. ’392 F,hpp, 685 (D.D.C, 1975), 46 House Report 95-830, P“ 85” 6940 F.R. 31320, July 25,1975; 33 CFR 209.120. 47 Section 301(b)(2)(F), 33 U,S,C. 131 l(b)(2)(F). 70Section 404(f)(l), 33 U.S.C. 1344(f)(l), as amended 4aSection 301(g), 33 U.S.C, 1311(g), added by Public by Public Law 95-217, section 67(b), 91 Stat. 1600. Law 95-217, section 43,91 Stat. 1583. 7’Section 404(f)(2), 33 U.S.C, 1344(f)(2), as amended 4eSection 306,33 U.S.C. 1316. by Public Law 95-217, section 67(b), 91 Stat. 1601. ‘Section 306(b), 33 U.S.C. 1316(b). 72 Section 404(e), 33 U.S.C. 1344(e), Ch. 6 Federal Land Planning and Environmental Laws .197

73Section 404(g), 33 U.S.C. 1344(g). sives, and absorbents. For a description of industrial 7’40 CFR 440.20. minerals and their role, see Charles F. Park. Earth- 7540 CFR 440.22(a). bound, pp. 117-130 (1975). 7’40 CFR 440.22(a). ’540 CFR 436.21(e). 7740 CFR 440, subpart A. 9640 CFR 43tj.22(a), crushed stone; 40 CFR 436.32(a) 7840 CFR 44o, subpart C. construction sand and gravel; 40 CFR 436.52(a), gyp- 7940 CFR 440, subpart D. sum; 40 CFR 436.62(a), asphaltic mineral; 40 CFR ’40 CFR 44o, subpart E. 436.72(a), asbestos and wollastonite; 40 CFR ’140 CFR 440, subpart F. 436.102(b), barite (except wet process or flotation); 40 13240 CFR 440, subpart G. CFR 436.1 12(b), fluorspar (except heavy media separa- ’340 CFR 440.12(a). tion or flotation); 40 CFR 436.132(a), borax; 40 CFR “40 CFR 440.32 (a~l). 436. 142(a), potash; 40 CFR 436.152(a), sodium sulfate; ’540 CFR 440,42(a), 40 CFR 436.192(a), frasch sulfur; 40 CFR 436.222(b), 8840 CFR 440.52(a). bentonite; 40 CFR 436.232(a), magnesite; 40 CFR ’740 CFR 440,62(a), 436.242(a), diatomite; 40 CFR 436.252(a), jade; and 40 8840 CFR 440. 72(a). CFR 436.242(a) novaculite. 6e40 CFR 440.12(a)(3). 974o CFR 436.22(a)(2), crushed stone (dewatering); 40 ’40 CFR 440.22 (a13). CFR 436.32 (a~2) construction sand and gravel (dewa- g140 CFR 440.22(a)(4). tering); 40 CFR 436.42(a)(2), industrial sand (HF flota- ’240 CFR 440.52 (a12). tion only); 40 CFR 436.42(a)(3), industrial sand (dewa- gs40 CFR 440.62 (a~2). tering); 40 CFR 436.182(a)(l), phosphate rock; and 40 Q’Industrial minerals include sulfur, asbestos, fluor- CFR 436.382(a), graphite. spar, gemstones, graphite, building materials, abra-

40- f3f14 () - -ir~ - 14 198 b Analysis of Laws Governing Access Across Federal Lands

COASTAL ZONE MANAGEMENT ACT

The Coastal Zone Management Act ing specific listing of low-priority uses); and (CZMA)l provides a series of incentives for an inventory and designation of areas to re- States to develop comprehensive land use ceive specially stringent environmental pro- planning and zoning programs to preserve tection. Decisions in any of these areas could and protect the resources of the coastal zone. have a controlling impact on the feasibility of The Act was passed in recognition of severe mineral extraction or access within the coast- problems existing in the coastal areas and al zone. the absence of effective State and local ini- tiatives to combat these problems. Questions of mineral access are also affected by a section of the Act requiring State State action under the coastal zone pro- plans to provide for “adequate consideration gram has two phases: First, the development of the national interest involved in planning of a State management plan that meets crite- for, or in the siting of facilities . . . which are ria set forth in the Act and is approved by the necessary to meet requirements other than Secretary of Commerce; second, the imple- local in nature.”3 NOAA lists minerals as one mentation of that plan. The aim of the law, in of the resources in which there may be a na- simplified terms, is to create State authorities tional interest.4 Transportation networks are with the power to manage and control all fu- listed among facilities in which there may be ture development in the coastal region follow- a national interest. The requirement of “ade- ing a comprehensive management plan. The quate consideration” has been interpreted by Secretary of Commerce, through the National NOAA to mean that there be a balancing of Oceanic and Atmospheric Administration national interests in coastal resources and (NOAA), acts as the Federal administrator facilities with Federal, State, and local con- for the CZMA program and is charged with cerns involving adverse economic, social, or assuring that State plans and implementation environmental impacts.5 In any event, the programs meet the objectives of the Act. State plan will have to address the question State participation in the CZMA program of restrictions on mineral extraction and ac- is optional, but all 30 States eligible under the cess within the coastal zone. Act have thus far chosen to participate.2 There are three strong incentives to do so: States receive Federal financial assistance to THE COASTAL ZONE develop coastal zone management plans sat- isfying the statutory criteria; the cost of ad- The Act provides an inexact definition of ministering approved plans will also be sub- the crucial term “coastal zone, ” the locus for stantially covered by Federal grants; and a management activity. Section 304(1) states: State is assured that most Federal actions The term ‘coastal zone’ means the coastal directly affecting coastal areas must be ‘con- waters (including the lands therein and sistent’ with the approved coastal zone man- thereunder) and the adjacent shorelands (in- agement plan. cluding the waters therein and thereunder), The potential impact of State coastal zone strongly influenced by each other and in management plans on mineral access is proximity to the shorelines of the several clear. A State management plan (discussed in coastal States, and includes islands, transi- greater detail below) must include the follow- tional and intertidal areas, salt marshes, wet lands, and beaches. . . . The zone extends in- ing: a definition of permissible land and wa- land from the shorelines only to the extent ter uses within the coastal zone; guidelines on necessary to control shorelands, the uses of the priority of uses in specific areas (includ- which have a direct and significant impact Note: Footnotes for this section appear on pp. 206-209. on the coastal waters. Excluded from the Ch. 6 Federal Land Planning and Environmental Laws .199

coastal zone are lands the use of which is by 2. A definition of what shall constitute per- law solely subject to the direction of or which missible land uses and water uses within is held in trust by the Federal Government, the coastal zone that have a direct and its officers, and agents. significant impact on the coastal waters; Section 304(2) indicates that the term 3. An inventory and designation of areas of ‘coastal waters’ includes ‘those waters, adja- particular concern within the coastal cent to shorelines, which contain a measur- zone; able quantity and percentage of seawater, in- 4. An identification of the means by which cluding but not limited to sounds, bays, the State proposes to exert control over lagoons, bayous, ponds, and estuaries. ’ the land and water uses that have a direct and significant impact on the The inland extent of the coastal zone is coastal waters, including a listing of decided on a case by case basis.’ It must in- relevant constitutional provisions, laws, clude areas whose uses will have “direct and regulations, and judicial decisions; significant impact on coastal waters. ” NOAA regulations list a number of significant fac- 5. Broad guidelines on the priority of uses tors such as the demographic, economic, po- in particular areas, including specifical- litical development, and geophysical charac- ly those uses of lowest priority; teristics of an area that should be considered in making decisions on the extent of coastal 6. A description of the organizational zone boundaries.7 structure proposed to implement the management program, including the re- Alaska has the longest coastline of any sponsibilities and interrelationships of State, an estimated 47,300 miles of tidal local, areawide, State, regional, and in- ocean shoreline.8 Much of the coastline is in, terstate agencies in the management and will continue in, Federal ownership and process; is therefore excluded from inclusion in the 9 7. A definition of the term “beach” and a coastal zone. In its coastal zone plan submis- planning process for the protection of sion of 1978, the State will initially define the and access to public beaches and other Alaskan coastal zone as being seaward to the public coastal areas of environmental, extent of State jurisdiction and landward in recreational, historic, esthetic, ecologi- terms of biophysical criteria developed by the cal, or cultural value; Alaska Department of Fish and Game.10 The initial landward boundaries will be subject to 8. A planning process for energy facilities modification as the plan is developed in that are likely to be located in or that detail.11 may significantly affect the coastal zone, including, but not limited to, a process for anticipating and managing the im- STATUTORY REQUIREMENTS pacts from such facilities; and FOR THE PLAN 9. A planning process for (a) assessing the effects of shoreline erosion (however The first phase of the CZMA process re- caused), and (b) studying and evaluating quires that the State develop a plan for ways to control or lessen the impact of managing activities in the coastal zone. At a such erosion, and to restore areas minimum, the plan must contain the following adversely affected by such erosion. nine elements specified in section 305(b):12 These requirements are designed to ensure 1. An identification of the boundaries of that qualifying plans achieve wise use of the the coastal zone subject to the manage- land and water resources of the coastal zone ment program; by giving full consideration to ecological, 200 ● Analysis of Laws Governing Access Across Federal Lands

cultural, historic, and esthetic values as well this requirement recognizes “that no simple as to the needs for economic development in- geographic definition will satisfy the manage- cluding the extraction of needed mineral re- ment needs of all coastal States” because of sources. These requirements differ markedly the peculiarities and variations that exist. In- from State plans under the clean air or water stead, it enumerates a number of factors, programs, 13 in which the State plans must such as an area’s demographic, economic, po- meet specific Federal requirements for the litical, developmental, and geophysical, char- elimination of named pollutants in a specified acteristics, that should be considered in time frame. determining the coastal zone boundary for a State. 15 DEVELOPING THE PLAN After designation of coastal zone limits, the State must determine what are permissible The first Federal incentive for State par- land and water uses within the coastal zone that have a direct and significant impact on ticipation in the CZMA program is the provi- 16 sion of matching grants to meet State costs in the coastal waters. In making these deter- developing an acceptable plan. Grants of up minations, the regulations require States to to 80 percent of the State costs maybe made consider, among other things, the “require- in each of 4 years. 14 ments for . . . extraction of mineral resources and fossil fuels . . . “ and the development of The CZMA offers considerable latitude to indices measuring the environmental and eco- States in developing an approvable plan, but nomic impact of such activities,17 i.e., whether the program planning process requires that they are beneficial, benign, tolerable, or the States address the designated statutory adverse. A State must provide for some evalu- criteria while doing so. As a result, State ative mechanism in its plan in order to assess choices in the development of a proposed plan environmental and economic impacts result- could affect the availability of or access to ing from the extraction of minerals and fossil minerals on non-Federal land in coastal fuels. zones. Key decisions in the development and im- Section 305(b) specifically requires States plementation of a coastal zone management to identify the means by which control over program include the designation of the coast- permissible land and water uses will be ex- al boundaries, the determination of permitted erted; and the regulations delineate a variety uses and their priority, the inventory and des- of options in terms of laws, regulatory proc- ignation of areas of particular concern, and esses, and the like, that are available to the establishment of land and water use con- demonstrate this capacity. This requirement trols. Designation of the coastal zone bound- is reinforced by the provisions of section aries is the first step in the development of a 306(e) that require adoption of some reg- management program. It determines the loca- ulatory process to approve or disapprove of tion and extent of territory subject to plan- various land and water uses. State coastal ning and controls and, equally important, zone management plans must also include those areas that are excluded from controls. “an inventory and designation of areas of particular concern within the coastal zone. ” The Act recognizes that land and water These are areas of special statewide con- uses in areas a considerable distance inland cern, which, it is expected, will be empha- from the land-sea interface may have signif- sized in their development of coastal zone icant effects on the coastal environment. policies and controls. Therefore, the protection of this environment requires control of all areas whose uses will According to regulations issued by NOAA have “direct and significant impact on the to supply guidance to States in the develop- coastal waters. ” The regulation interpreting ment of their plans :18 Ch. 6 Federal Land Planning and Environmental Laws ● 201

Geographic areas of particular concern need a major consideration in their determi- are likely to encompass not only the more- nations and to base designations on a review often cited areas of significant natural value of natural and manmade resources and the or importance, but also: (a) transitional or in- uses of the coastal areas. These include the tensely developed areas where reclamation, following:19 restoration, public access, and other actions are especially needed; and (b) those areas especially suited for intensive use or develop- 1. Areas of unique, scarce, fragile, or vulner- ment. able natural habitat, physical feature, historical significance, cultural value, and The regulations recognize that States “will scenic importance; vary in their perception of what areas are of 2. Areas of high natural productivity or particular concern” and provide detailed cri- essential habitat for living resources, in- teria for guidance during the designation cluding fish, wildlife, and the various process, which could affect mineral activities trophic levels in the food web critical to in coastal areas. their well-being; In designating areas of particular concern, 3. Areas of substantial recreational value the States are directed to make immediacy of and/or opportunity;

Photo Cred/t ” U.S. Dept. of the /rfteflor, National Park Serwce

Stellar Sea Lions, Kenai fjord, Alaska 202. Analysis of Laws Governing Access Across Federal Lands

4. Area where developments and facilities retary must also find that the following nine are dependent on the utilization of, or ac- requirements have been met in the plan’s cess to, coastal waters; development. 5. Areas of unique geologic or topographic significance to industrial or commercial 1. The plan was developed in compliance development; with relevant Federal rules and regulations, and allowed opportunity for full 6. Areas of urban concentration where shoreline utilization and other water uses participation by “relevant Federal and are highly competitive; State agencies, local governments, regional organizations, port authorities, 7. Areas of significant hazard if developed, and other interested parties, public and owing to storms, slides, floods, erosion, private.” 24 settlement, etc.; and 2. The State has coordinated its program 8. Areas needed to protect, maintain, or re- plenish coastal lands or resources, includ- with local, areawide, and interstate ing coastal flood plains, aquifer recharge plans applicable to areas within the areas, and dunes, coral and other reefs, coastal zone developed under section beaches, offshore sand deposits, and man- 204 of the Demonstration Cities and Met- grove stands. ropolitan Development Act of 196625 and established an effective mechanism for The inventory and designation of areas of the State coastal zone management pro- particular concern should assist the States in gram to maintain coordination with local meeting the statutory requirement that man- governments and regional and interstate agement plans provide procedures for the agencies. The coordination mechanism designation of specific areas for preservation must require that the coastal zone man- or restoration for their conservation, recrea- agement agency notify and receive com- tional, ecological, or aesthetic values. It ments from local governments on any should be noted that the list includes con- program action that would conflict with sideration of the mineral value of coastal local zoning rules. The State agency “areas of unique geologic or topographic sig- must allow 30 days for comment by the nificance to industrial or commercial devel- local officials; the management agency opment.”20 must review any such comments, prior to implementing the proposed action.26 3. The State has held public hearings in APPROVING THE PLAN 27 developing the program. Once a State plan is approved by the Sec- 4. The Governor has approved the plan.28 retary, the State is eligible for a program ad- 5. The Governor has designated a single ministration grant under section 305 of the agency to receive and administer section Act. These grants provide up to 80 percent of 305 grants.29 the cost of actually administering the programs described in the plan.21 The Secretary 6. The State is organized to administer the is also authorized to make grants to States for plan. 30 program costs during the period between submission of the plan and its approval.22 7. The State has the authority to implement the program, including authority to con- Review and approval of plans is handled by trol land and water uses in the zone and the Office of Coastal Zone Management of the ability to acquire interests in proper- NOAA.23 Approval requires more than show- ty.31 Controls over land and water may ing that a State plan contains the nine ele- be accomplished through any one or a ments set forth in section 305(b). The Sec- combination of these techniques :32 Ch. 6 Federal Land Planning and Environmental Laws ● 203

(a) Local implementation of State estab- ernment agencies, and an opportunity for lished standards and criteria subject participation by interested parties. A State to State administrative review; may, with approval of the Secretary, imple- (b) Direct State land and water use ment its programs in segments in order to planning and regulation; focus immediate attention on those coastal (c) Local planning and regulation of areas with the most serious problems, as long land and water uses subject to State as the segmented management program can administrative review for consisten- ultimately be consolidated into a single State cy, with State power to approve or program. disapprove after public notice and During the review of each State manage- an opportunist y for hearings. ment program submitted for Federal ap- The plan must also include a method for proval, NOAA will prepare an EIS pursuant assuring that local land and water use to NEPA.37 regulations “do not unreasonably restrict land or water uses of regional benefit.” 33 8. The management program must provide FEDERAL-STATE RELATIONSHIPS for planning and siting of facilities UNDER CZMA (including energy-related facilities) necessary to meet requirements that are The Act establishes a close relationship be- “other than local in nature.”34 tween the State and Federal coastal agencies conducting or licensing activities within or 9. The program must include a procedure near the coastal zone. The coastal zone itself to designate areas for preservation or cannot contain “lands the use of which is by restoration for conservation, recrea- 35 law subject solely to the discretion of, or tional, ecological, and other values . which is held in trust by, the Federal Govern- However, compliance with the statutory re- ment’’38—e.g., national parks, forests, wild- quirements is not sufficient to guarantee plan life refuges, petroleum reserves, and land ad- approval. Regulations setting out general re- ministered by BLM. The management plan, quirements supplementary to the statute however, can have a major effect on Federal state: “At the minimum, States shall include activities that might affect the coastal zone. three broad classes of policies in their In addition, Federal agencies acting in and management program in order to provide a around the zone have a role in the approval of framework for the exercise of various man- a State management plan. agement techniques governing coastal re- 36 Section 306(b) requires the Secretary of sources, uses, and areas.” These policies Commerce to consider the views of Federal are: (1) resource policies directed towards agencies that might be affected by a manage- the management and conservation of val- ment plan before approving that plan. Thus, uable or vulnerable coastal resources; (2) Federal agencies operating in or near the coastal development policies that address zone have the opportunity to call for changes such matters as shorefront access, ports and in a management plan. harbors, energy development, and mineral access; and (3) governmental process policies Once a plan is approved, the State then has including clarification and simplification of the opportunity to influence Federal activity regulatory and permitting procedures. in and near the zone due to the “Federal consistency” provision of the Act. The consist- The State management plan may be ency provision is, in actuality, fourfold: amended with approval of the Secretary of Commerce after public notice, consultation ● Federal agencies that conduct or sup- with affected Federal, State, and local gov- port activities directly affecting the zone 204. Analysis of Laws Governing Access Across Federal Lands

must do so in a manner consistent, to the the Executive Office of the President, shall maximum extent, with the management seek to mediate the differences involved.47 program. 39 Where the disagreement arises over a State- Federal conflict in the administration of the Federal agencies undertaking a develop- plan, a public hearing must be held in the ment project in the zone must ensure local area concerned.48 that the project is, to the maximum extent, consistent with the management 40 Federal land management agencies are program. subject to the consistency requirements of the Applicants for a Federal license or per- CZMA.49 Applications for rights-of-way or mit affecting land or water uses in the other uses of Federal lands in or affecting zone must secure State certification that coastal zone areas must be consistent with the activity complies with the manage- any approved State management program, ment program before the Federal agency unless there is a decision by the Secretary of can grant the license or permit.41 Commerce that the application is consistent with the Act or necessary in the national in- Applicants for Federal assistance un- terest.50 Applicants for permits or rights-of- der other Federal programs affecting way involving Federal lands in coastal areas the coastal zone must include the views in a State with an approved plan must secure of the appropriate State management State approval of their applications in addi- agency on the relationship of the pro- tion to Federal agency approval.51 Under the posed projects to the State coastal zone 52 42 Federal Land Policy and Management Act plan. and the Forest and Rangeland Renewable Re- sources Act,53 as amended, the BLM and For- Exceptions to the consistency provisions est Service, respectively, are required to de- may be made where the Secretary finds that velop management plans for individual man- the proposed Federal action is “consistent agement units of public lands and national with the objectives of (the Act) or is otherwise forests. For those units in or near designated necessary in the interests of national secu- 43 coastal areas, the Federal plan should, under rity.” CZMA provisions, be consistent with State management plans “to the maximum extent Section 307(f)44 of the CZMA states that it practicable.” Thus, permissible uses of Fed- does not in any way affect any requirement eral lands in coastal areas may, to a large that is established by FWPCA, as amended,45 degree, be controlled by individual State or by the Clean Air Act, as amended,46 or any plans. 54 requirement that is established pursuant to either of these Acts by Federal, State, or local In Alaska, where large portions of the governments. Moreover, the Act goes on to coast will remain in Federal ownership, the mandate that such requirements must be in- development and implementation of the man- corporated in the plan and must serve as the agement program has two likely conse- water pollution control and air pollution con- quences. First, the affected Federal agencies trol requirements applicable to the coastal will clearly have a major impact on decisions zone management program. by the Secretary of Commerce and NOAA regarding the adequacy and provisions of the If there is a “serious disagreement” be- program. Second, the management program, tween any Federal agency and a coastal when approved, will provide the State with State in the development of a management an opportunity to influence Federal activity plan under section 305, or in the administra- over a large area in and around the coast, tion of the plan under section 306, the which would otherwise be totally beyond Secretary of Commerce, in cooperation with State control. Ch. 6 Federal Land Planning and Environmental Laws ● 205

NATIONAL INTEREST States must consult with appropriate CONSIDERATIONS Federal agencies and neighboring States in ascertaining local, regional, and national While the main thrust of the CZMA pro- needs for facility sitings in or affecting the 61 gram is aimed at protecting and preserving coastal zone. This coordination must begin natural resources in the coastal zone, the Act at an early stage of planning, so that national contains recognition of the needs for resource and regional needs will receive full consid- development. eration during the process of program devel- Section 306(c)(8)55 requires that State plans opment. The regulations emphasize that the States should actively seek the advice of con- must provide for adequate consideration of as as con- the national interest involved in planning for cerned Federal agencies, well sulting with neighboring States that share and siting of facilities that are necessary to coastal resources, and with regional in- meet requirements which are “other than local in nature. ” NOAA regulations elaborate terstate bodies. 56 on the meaning of this provision. This requirement is not construed as compelling the OVERVIEW: MINERAL ACCESS AND States actually to include accommodations COASTAL ZONE MANAGEMENT for certain types of facilities in their management programs.57 It is intended, rather, to There are three important elements of make sure that such national concerns are State implementation of the coastal zone considered at an early stage of State planning management program that should be of active and that such facilities are not arbitrarily ex- concern to mineral interests. First, is the cluded or unreasonably restricted in the man- development of a State management program agement program.58 “Requirements, which plan; second, is the opportunity for public are other than local in nature” are consid- participation in the development of the plan; ered to be those relating to facilities designed and third, is the consideration of national in- to serve more than one locality. terest involved in the siting of facilities. These elements are key components in the develop- NOAA has issued guidelines in the form of ment and operation of a coastal zone manage- regulations that identify types of facilities ment program and establish the State guide- with siting characteristics that the Secretary lines and rules for regulation of activities and of Commerce believes may involve a clear na- 59 uses within the coastal zone. Moreover, Fed- tional interest. These national interest re- eral agencies, including land management quirements include interstate transportation agencies, are required to conduct their pro- facilities, such as interstate highways, air- grams and actions in the coastal zone to com- ports, aids to navigation, ports, harbors, and ply with the State plan, to the maximum ex- railroads. Under the terms of this regulation, tent possible. The Coastal Zone Management State plans must make reference to the views Act and regulations provide for a considera- of “cognizant Federal agencies” as to how tion of mineral resources needs and activ- these national needs may be met in the ities, and require opportunities for public coastal zone of that particular State. In the participation through which the views of the case of minerals, the cognizant Federal agen- minerals industry may be heard. cies are the Bureau of Mines and the Geologi- cal Survey of the Department of the Interior. The initial development of a State plan For transportation facilities, Federal agen- establishes the limits of the coastal zone, cies include the Federal Highway Administra- designates permissible activities and uses tion, the Federal Aviation Administration, the and their relative priorities, identifies areas Coast Guard, the Army Corps of Engineers, of particular concern, and establishes a State the Maritime Administration, and the Inter- mechanism for control of land and water uses state Commerce Commission.60 in coastal areas. Regulations for setting per- 206 ● Analysis of Laws Governing Access Across Federal Lands

missible uses specifically include in the list of under the Act must be announced at least 30 factors States should consider in the planning days prior to the hearing date and all agency process, a consideration of the requirements materials and documents must be made avail- for the extraction of mineral resources and able to the public for review and study.66 In fossil fuels, and the environmental and eco- addition, Federal regulations issued under nomic impacts of these activities.62 Considera- the CZMA are subject to provisions of the Ad- tion of the transportation needs of the coastal ministrative Procedure Act and allow op- zone, including transportation necessary for portunity for public review and comment.67 mineral resources extraction, should also be The ample public participation provisions reflected in the planning process. The inven- in the Act should, in theory, facilitate the tory and designation of areas of particular ability of representatives of the mining in- concern specifically include consideration of dustry, as well as individual miners and op- “areas of geologic or topographic signif- erators, to bring their particular needs and icance to industrial or commercial develop- 63 problems before Federal, State, and local ment." decisionmakers. At all phases in the develop- A primary purpose of the Act is “to en- ment, review, implementation, and modifica- courage the participation of the public, of tion of State coastal zone management pro- Federal, State, and local governments, and of grams these concerns—including special ac- regional agencies in the development of coast- cess and transportation needs associated al zone management programs.”64 To this with operations in or affecting the coastal end, the Act requires that there be “public zone— can be expressed. However, experi- notice and opportunity for full participation ence thus far suggests that neither coastal by Federal, State, and local governments, zone planners nor the mining community have regional and interstate agencies, and other addressed themselves at any length to the interested parties, public and private” in the potential impacts of coastal zone planning on development of the State plan and proposals mineral access.68 It is still relatively early in for modification.65 All public hearings held the development of the program.69

FOOTNOTE REFERENCES FOR COASTAL ZONE MANAGEMENT ACT

‘Public Law 92-583, 86 Stat. 1280, oct. 27, 1972, as 415 CFR 923,52. This section contains two tables, amended by Public Law 94-370, 90 Stat, 1013, July 26, which are characterized as illustrative of various items 1976, 16 U.S.C. 1451-1464. of national interest. Table I, “Facilities in which there ‘Council on Environmental Quality, Environ~ental may be a national interest in planning or siting” lists (1) Quality–1977, The Eighth Annual Report of the CounciJ National defense and aerospace, (2) Energy production on Environmental Quality, 1977, at 109. CEQ reports and transmission, (3) Recreation, (4) Transportation, that management programs have been approved thus and (5) Regional water treatment plants. Table II, deal- far for the States of Washington and Oregon and for ing with resources whose preservation might justifiably the Bay Area Conservation and Development Commis- conflict with the national interest involved in the siting sion of the San Francisco Bay area and Culebra area of of facilities in table 1, lists minerals, but lists as the Puerto Rico. Proposals have also been submitted by “Major related Federal legislation” only the Mineral California and the Virgin Islands. Indiana was sus- Leasing Act. While this does not mean that hardrock pended for failing to make progress in planning a pro- minerals are not to be considered items of national in- gram and has applied for reinstatement. terest, it may indicate that NOAA has not focused on 3Section 306(c)(8); 16 U.S.C. 1455(c)(8). this particular area. Ch. 6 Federal Land Planning and Environmental Laws . 207

515 CFR 923.52(a). 24Section 306 (c)(l); 16 U.S,C. 1455 (c)(l). 8A discussion of boundaries for the coastal zone is 2542 U.S.C, 3334. found at 15 CFR 923, subpart D. Zesection 3(xj(c)(2); 16 U.S. C. 1455(c)(2). The coastal management area must include the fol- 27Section 306(c)(3); 16 U.S.C. 1455(c)(3), lowing: (1) areas in which there are “uses subject to Z’Section 306(c)(4); 16 U.S.C. 1455(c)(4). management” (defined at 15 CFR 923.11; in general, 2gSection 306(c)(5); 16 U.S.C. 1455[c)(5). they include facilities which have a direct and signifi- 30Section 306(c)(6); 16 U.S,C, 1455(c)(6). cant impact on coastal waters, such as tank farms and 3’Section 306(c)(7); 16 U.S.C. 1455(c)(7). refineries, industrial parks, LNG facilities, ports, etc., Jzsection 306(e)(l); 16 U.S. C. 1455(e)(l). These three 15 CFR 923.11(c)(2) specifically mentions mineral and control techniques are discussed at some length in the sand extraction.); (2) Special management areas (de- Mar. 1, 1978 regulations, 15 CFR 923,42, at 43 F.R. fined at 15 CFR 923.21 as areas of unique scarce or vul- 8407. nerable natural habitat or historical significance or J’Section 306(e)(2); 16 U.S.C. 1455(e)(2). cultural value, areas of high natural productivity or 34Section 306(c)(8); 16 U.S.C. 1455(c)(8). essential habitat for living resources, and other areas 35Section 306(c)(9); 16 U.S.C. 1455(c)(9). needing stringent environmental protection); (3) transi- 3615 CFR g23.3(f). Mineral extraction is specifically tional or intertidal areas; (4) salt marshes and wet- mentioned among resource development policies. lands; (5) islands; and (6) beaches. See 15 CFR 3715 CFR g23.62. NOAA requires that State manage- 923.31(a). ment programs be accompanied by “an environmental The succeeding section of the regulation identifies impact assessment that meets the requirements of the other areas that should be considered for, but are not National Environmental Policy Act.” The Office of required for, inclusion in the coastal management area: Coastal Zone Management uses this information to (1) watersheds; (2) waters under saline influence; and determine if it must prepare an environmental impact [3) Indian lands not held in trust by the Federal Govern- statement. (It is almost impossible to conceive of a ment. situation in which an EIS would not be needed. ) Pro- 8Federal-State Land Use Planning Commission for cedures for timing and review of the EIS are set forth at Alaska, “The D-2 Book, ” Lands of National Interest in 15 CFR 923.72. Naska, May 1977, at 42. Sasection 304(1); 16 U.S.C. 1453[1). See 15 CFR ‘The coastal management zone cannot include 923.33(a). “lands owned, leased, held in trust or whose use is 3gSection 307(c)(1); 16 U.S.C. 1456(c)(1). otherwise by law solely subject to the discretion of the ‘Section 307(c)(2); 16 U.S.C. 1456(c)(2). Federal Government. ” 15 CFR 923.33(a). 4’Section 307(c)(3); 16 U.S.C. 1456(c)(3). ‘“Information concerning the current status of the 42Section 307(d); 16 U.S.C. 1456(d). Alaska coastal zone plan was provided in a communica- ‘sSection 307(c)(3)(A), section 307(c)(3)(B)(ii) and section from Mr. Roger Allington, a member of the Assess- tion 307(d); 16 U.S.C. 1456(c)(3)(A), 16 U.S.C. 1456(c)(3) ment Advisory Panel, who is serving on the State of (B)(ii), and 16 U.S.C. 1456(d). See 15 CFR 930, Subpart Alaska Coastal Zone Planning Board. H, “Secretarial Review Related to the Objectives and ‘lSection 3C)5(b); 16 U.S.C. 1454(b). Interim final Purposes of the Act and National Security Interest. ” regulations for the development and approval of State “16 U,S.C. 1456(f). See 15 CFR 923.44. coastal management programs were not issued until 4542 U.S. C. 7401 et Seq. Mar. 1, 1978, after preparation of this analysis; they ’33 U.S.C. 1251 et seq. superseded previously proposed and final rules govern- ‘7 Section 307(h); 16 U.S.C. 1456(h). See 15 CFR 930, ing NOAA’s administration of the Act (see 43 F.R. 8378, Subpart G, Secretarial Mediation. Mar. 1, 1978, for a list of revised and superseded regu- 48 Section 307(h)(2); 16 U-S*CO 1456(h)(2). See 15 CFR lations). Although some sections of this analysis were 93o, Subpart G, Secretarial Mediation. based on previous regulations, citations are to the re- ‘QNOAA has recently published a final rule on vised regulations of Mar. 1, 1978. Federal consistency with approved management pro- IZ16 U.S. C. 1454(b). grams, 43 F.R. 10510, Mar. 13, 1978. Consistency re- IJSection 110 of the Clean Air Act. See 42 U.S. C. 7410 quirements for Federal lease or permit programs are at and section 208 of the Clean Water Act, 33 U.S.C. 1288. 15 CFR 923, subpart D. “Section 305(c); 16 U.S,C. 1454(c). S015 CFR 923, subpart H. ’515 CFR 923, subpart D, supra, notes 6 and 7. Slsee 15 CFR g30.63, State agency concurrence with I“15 CFR 923, subpart B. applications for Federal permits or licenses; 15 CFR ’715 CFR 920.12. 930.64, Effects of State agency objection. NOAA regu- 8 ’ 38 F.R. 33046, NOV. 29, 1973. lations provide a process by which a State may list in 1915 CFR 923.21(d). advance certain Federal permit and license activities 2015 CFR 923.21(d)(l)(v). which must be reviewed for consistency, 15 CFR ZISection 306(a); 16 U.S.C. 1455(a). 930.53, and an associated procedure by which a State Zzsection 305(a~2); 16 U.S.C. 1454( a12). may have an opportunity to review other Federal per- Zqsee 43 F.R. 8378, Mar. 1, 1978. mit and licensing activities should they prove to have an 208 “ Analysis of Laws Governing Access Across Federal Lands

impact on the coastal zone, 15 CFR 930.54. Both proce- OCS activity on the coastal zone and the question of dures allow for review of Federal permits and licenses control over that activity remains controversial and relating to activities which actually take place outside has been a central force in the development of the en- the boundaries of the zone, but have an impact within tire coastal zone program. It is likely that in framing the the zone (see Comment, 15 CFR 930.53(b)). Whenever a consistency regulations, as elsewhere in developing the State reviews an action, the applicant for the Federal regulatory structure for administration of the Act, permit or license must provide the State reviewing other types of land use and other Federal land use plan- agency with data and information necessary to assess ning efforts were not considered in great detail. the impact of the proposed activity on the affected 5516 U,S,C, 1456(c)(8). coastal zone. The State agency must provide for public 5815 CFR 923.52. notice of the application, 15 CFR 930.61, and, at its dis- 5715 CFR 923.52(a). cretion, public hearings on the conformity of the activ- s81d. ity with the management plan. Under the regulations, s~see table I, 15 CFR 923.52. the applicant is initially required to certify that its ap- ‘Id, plication is in accord with the management plan, 15 8115 CFR g23.52(f). In addition to the national interest CFR 930.57. The State acts as a reviewer, either con- provision, the Act and regulations contain a related curring in the applicant’s assessment, 15 CFR 930.63, provision concerning “uses of regional benefit,” 15 CFR or objecting, 15 CFR 930.64. If the State agency objects, 923.12 and 15 CFR 923.43, designed to ensure that a then the Federal agency may not issue the permit or State plan does not prevent the development of projects license, 15 CFR 930.65, unless the Secretary overrides that are of regional benefit. the State decision under 15 CFR 93o, subpart H. ‘Zsee 15 CFR 923.2(d)(8), 15 CFR 923.3( f)[2). sz~blic Law 94-579, 90 Stat. 2743, oct. 21, 1976, 43 ’315 CFR 923.21(d)(l)(v). U.S.C. 1701 et seq. Planning requirements are at sec- e’section 303(d), 16 U.S.C. 1452(d). tion 202, 43 U.S.C. 1712. It states, in part, that: “In the esseetion 306(c)(1); 16 U.S.C. 1455(c)(1). development and revision of land use plans, the Sec- eesection 308; 16 U.S.C. 1457. retary (of the Interior) shall . . . (9) to the extent consist- 8TSection 314; 16 U.S.C. 1463. ent with the laws governing the administration of the ‘As part of this assessment, OTA commissioned two public lands, coordinate the land use inventory, plan- studies of the relationship between developing coastal ning, and management activities of or for such lands zone management programs and questions of mineral with the land use planning and management programs access. One study, “E~~ects of the Federal Coastal Zone of other Federal departments and agencies and of the Management Act of 1972 on Access to Minerals on Non- States and local governments within which the lands Federal Lands, ” Earth Satellite Corporation, 1977, was are located, ., . Land use plans of the Secretary under a review of programs and interviews with public and this section shall be consistent with State and local private representatives in the States of Delaware, plans to the maximum extent he finds consistent with Maryland, and New Jersey. The other study, “Coastal Federal law and the purposes of this Act. ” Section Zone Management and Access to Onshore Minerals on 202(c)(9), 43 U.S.C. 1712(c)(9). Non-Federal Lands—A Threshold Assessment, ” SJfiblic Law 93-378, 88 Stat, 476, Aug. 17, 1974, as Theberge and Whitney, 1977, analyzed laws and inter- amended by Public Law 94-588, 90 Stat. 2949, Oct. 22, viewed mining interests (from major hardrock mining 1976. 16 U.S.C. 1601, et seq. Section 6 contains re- operators to small sand and gravel producers) and quirements for national forest system planning, 16 coastal zone regulatory personnel in the States of U.S,C. 1604, but contains no specific mention of con- Virginia, North Carolina, and South Carolina. sistency with State or local management plans. Both studies came to similar conclusions. Earth 54There is no provision for direct State approval or Satellite reported: disapproval of agency land use plans that control development within the coastal zone. The consistency Direct (resulting from implementation of the requirement technically affects only direct Federal Act) or indirect (resulting from State and local agency activities and activities requiring a Federal laws and regulations developed as a result of the license or permit, not plans or procedures that maybe general attitude towards land management and determinative of agency choices of which activities will environmental protection fostered by CZMA and be undertaken and which licenses and permits will be related Federal laws) environmental, social/cul- granted. Of course, if agency plans and procedures are tural, economic, national security, recreation/ not sensitive to coastal zone management programs, scenic, transportation, institutional, or other ef- then they will merely create an internal procedure that fects on onshore non-Federal mining resulting makes choices that can be nullified when they reach from the CZMA have not been identified, fruition as direct action, licenses, or permits. Signifi- All but a few of the mineral producers in the cantly, the consistency regulations do contain a provi- three State area are small businesses; most are sion describing a process by which management plans unaware of the CZMA and none could cite specific and the consistency requirement will be applied direct- access or blockage problems resulting from the ly to OCS plans, 15 CFR 93o, subpart E. The impact of Act. Ch. 6 Federal Land Planning and Environmental Laws ● 209

Theberge and Whitney found: proved and operational, and that it might have a more Even in States that have enacted or are adopting significant effect in States with hardrock mining poten- comparatively advanced coastal management and tial in the coastal zone, in States which do not have a planning programs, such programs have not as yet history of land use controls on coastal areas, or in expressly addressed the issue of access to min- States which have a significant Federal land manage- erals in the coastal zone, although both North ment presence on the coastal zone. Carolina and South Carolina have regulatory proc- e9Alaska has yet to submit a CO&3tal zone manage- ess and authority to do so. Although the CZM plan- ment plan. Some steps have been taken at the State and ning phase will soon enter its fourth and final local level to begin the process. State legislation passed year, mining interests still have an opportunity to in 1977, S. 220, establishes a framework for State con- play a meaningful role in plan development. trol over local decisions as allowed by section 306(e) (l)(A) of the Act, 16 U.S.C. 1455(e)(l)(A). A Coastal Zone This lack of focus on mineral access is understand- Policy Council will develop guidelines to be imple- able. Plans are still in the development stage. Other mented at the local and regional level. Every local gov- controversies such as OCS development and public ac- ernment unit bordering on, or located in an area that cess to beaches have dominated the coastal zone plan- has a significant impact on the coast will have author- ning process. Issues such as Surface Mining legislation, ity to implement these guidelines. In unorganized areas, the Clean Air Act, and Alaska National Interest Lands special new boards and commissions have been estab- have had higher priority for the mining community. lished to control use of the coast or land and water hav- However, the findings of the two reports—while ing an impact on the coast. The effects of the consist- clearly an accurate reflection of the situation in the ency provision will have a major bearing on the oper- places and times studied—may not portray the relation ation of the management program in Alaska for two of coastal zone management to minerals access at later reasons: (1) major exploration, development, and pro- times or in other States. The States studied shared the duction programs planned as part of the OCS program following characteristics: (1) None were far advanced and (2) the large amount of coastal lands that will re- in management planning; (2) The major mining activity main under Federal ownership even after State and was the extraction of common variety minerals; (3) All Native land selections are completed. The roles of Alas- the States involved had highly developed coastlines ka Natives and the Native Corporations, which have with a history of land use control by pervasive and com- large coastal holdings, have yet to be clarified. Al- prehensive zoning laws; and (4) None of the States had though Indian tribes can operate as regional planning a particularly major Federal presence on or near the agencies, 15 CFR 923.92(e), the Corporations are not coastal zone. It is conceivable that coastal zone tribes. However, villages will implement the State management will have a more appreciable impact on Guidelines. Material supplied by Roger Allington, see mineral access, in any State, when a final plan is ap- supra, note 10. 7 Options for Congressional Consideration ————.— .

Chapter 7.— OPTIONS FOR CONGRESSIONAL CONSIDERATION

Page

TABLE Page 5. Summary of Selected Congressional Action Options . . . . 216 Options for Congressional Consideration

INTRODUCTION

Congress, through the legislative decisions portation system. Most of the settlements called for by section 17(d)(2) of the Alaska throughout the State are connected by air. Native Claims Settlement Act (ANCSA), has a However, the development of mineral re- unique opportunity to influence Alaska’s eco- sources—with the exception of certain pre- nomic development while protecting its envi- cious metals—requires a transportation sys- ronmental values. The unprecedented land tem able to move large quantities of bulk grants under ANCSA and under the Alaska materials to market. In most of Alaska, a sur- Statehood Act, which many view as the foun- face transportation system—a railroad or dation of Alaska’s economic future, are cre- highway—would be the only mode capable of ating major changes in its landownership pat- transporting bulk ore.] Resolution of uncer- terns. tainties about the availability of possible routes crossing Federal lands and about the Following the conveyance of Native and conditions of their use could facilitate State State lands, approximately 60 percent of the planning and decisionmaking on the develop State will remain in Federal ownership. Con- ment of specific transportation systems. gressional decisions about the management of these Federal areas could affect mineral Congressional designation of vast areas of resource development on nearby non-Federal Alaskan lands for conservation purposes, for lands. The access policies of Federal land example as parks and wildlife refuges, im- management agencies are thus of critical mediately places a restriction on their avail- concern to non-Federal landholders. This is ability for other purposes. This includes their particularly true in remote sections of Alaska use for transportation routes and for access where topography, landownership patterns, and the lack of an extensive surface trans- ‘For a discussion of mineral transportation require- portation system combine to isolate many ments see OTA working paper, John W. Whitney and areas from potential markets for their prod- Dennis Bryan, “Assessment of Transportation Access ucts. Requirements for Minerals Exploration and Mine De- velopment and Operation in Alaska, ” in Analysis of Laws Goverm”ng Access Across Federal Lands: Options Compared with the rest of the United for Access in Alaska, Volume II, Working Papers (OTA- States, Alaska has a limited surface trans- M-76),

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Photo Credit: The Alaska Coal/l/on The primary mode of transportation throughout most of Alaska is by air. Here, a Hercules air transport plane unloading heavy equipment for Trans-Alaska Pipeline construction to non-Federal lands. Whether or not Con- In addition to the access policy options dis- gress specifically addresses future transpor- cussed in this chapter, there are other alter- tation demands and access needs in legisla- natives that could aid access to mineral re- tion on the proposed conservation areas, the sources on non-Federal lands in Alaska. Some d-2 decisions, either expressly or by implica- actions relate to Federal land management tion, will have access policy aspects that issues, such as the settlement of land selec- could influence resource development on sur- tions and easement issues under ANCSA and rounding non-Federal lands. the Alaska Statehood Act or providing assistance to those seeking access across Federal Because of the importance of the congres- lands that are under new management sys- sional access policy decision to the develop- tems. Other alternatives include planning ment of mineral resources in Alaska, a range and technical assistance to State and local of possible congressional options that ad- governments and to Native Corporations for dress the issue of the use of Federal lands for developing non-Federal natural resources access have been identified. The access op- and Alaskan transportation systems while tions, which are discussed in this chapter, balancing this development against the con- range from the extension of the existing ac- servation systems’ objectives of preservation cess policies of Federal land management and recreation. systems, through special provisions for Alas- kan right-of-way exceptions and Alaskan The availability of possible transportation transportation system needs, to a restrictive routes to serve non-Federal lands in Alaska access policy that would deny most access will be influenced by the congressional deci- uses of the conservation system lands—the sion about whether or not to allow surface ac- d-2 lands. (See table 5.) These options were cess across Federal lands placed in conserva- examined using information obtained from tion systems. If Congress allows access, it case studies and interviews. could be an incentive to Alaska’s efforts to Table 5—Summary of Selected Congressional Action Options*

Access through application of existing laws.

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Congress makes d-2 lands designations without any provision for nonrecreational access. -. ,... . Existing Institutions Existing institutions Existing institutions Existing institutions Exwtlng institutions .

“For a complele discussion see text ‘Exlstmg mstltutions include. Department of the lnterlor —Bureau of Land Management, National Park Serwce, Fish dnd Wtldllte Swwce; Department of Agriculture—Foresl Service ‘Existing dgencles revolved in transportation decislonrnakmg include: Department of Transportation—Federai Htgtlwdy Admuustratlon, Federal Aviation Admmistration, Fedt?rd Rali road Admlnlstratlon, Interstate Commerce Commwslon; U.S. Coast Guard, Department of the Army, Corps of Engineers, and the Federal Power Commission Ch. 7 Options for Congressional Consideration ● 217

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Dog sled team— a traditional means of transportation in rural Alaska 218 ● Analysis of Laws Governing Access Across Federal Lands

generate a State transportation plan and pri- Alaska that have no existing means of trans- orities. Resolution of the uncertainty about porting bulk materials. Placer mining, pri- the possible use of Federal d-2 lands for marily for precious metals, however, would transportation purposes could facilitate the be expected to continue. As a possible alter- State’s initial planning and evaluation of the native, Congress could decide to allow access transportation needs. This, in turn, could in some areas and to deny it in others. It is have the effect of encouraging mineral ex- conceivable that future technological innova- ploration and development. tions will make it possible to transport large quantities of minerals in new ways. These in- Specific transportation projects must still novations might include dirigibles, or low- be evaluated under established decisionmak- draft hover craft that would be able to move ing procedures. This evaluation process in- heavy loads in an arctic environment. This cludes consideration of the economic, envi- could allow exploration and development in ronmental, social, engineering, and trans- those areas where surface access across portation aspects of a proposed project. It Federal lands is not permitted. At present, no also provides opportunities for the participa- such innovative technologies are available. tion of State and local governments, Native Corporations, and other concerned interests. The approval of the Federal land manager is The Federal land management laws that also necessary before a transportation sys- directly control physical and legal access tem can be constructed over any Federal across Federal lands to mineral deposits on lands. non-Federal lands, are analyzed in chapter 4. Potential limitations are identified in the ac- Should Congress decide to limit or prohibit cess provisions of the laws that govern the the surface access use of conservation sys- various land management systems as they tem lands, mineral exploration and develop- might affect the emerging landownership ment might be discouraged in those areas of situation in Alaska.

FEDERAL LAND MANAGEMENT SYSTEMS– EXISTING ACCESS PROVISIONS

The Federal land management systems in- same time, it does not provide assurance to clude the public lands, which are managed by non-Federal landholders who may need to the Bureau of Land Management (BLM); and cross park lands. This lack of any assurance those lands which are referred to in this re- of access and of the terms and conditions of port as the national conservation system rights-of-way could deter potential devel- lands. These include: the National Park Sys- opers of non-Federal lands. tem, the System, the National Wildlife Refuge The Wilderness Act provides exceptions to System, the National Forest National Wilder- its prohibition on roads and mechanized ness System, the Preservation and National modes of travel through Federal wilderness Wild and Scenic Rivers System. areas for the holders of existing rights, and The National Park System lacks any ex- for the access needs of owners of private plicit right-of-way provision granting access lands that are wholly surrounded by national through park areas to non-Federal lands. forest wilderness areas. These exceptions do While the absence of a specific provision au- not extend to owners whose lands are sur- thorizing grants of rights-of-way across na- rounded by national park or refuge wilder- tional parks does not bar such use; at the ness areas unless Congress expressly ex- Ch. 7 Options for Congressional Consideration ● 219

tends them to specific units. Even with such Even after the passage of Alaska Lands an extension, the exceptions for surrounded legislation, uncertainty may still persist about private lands and existing private access the access use of the remaining public lands rights might not provide adequate assurance because of the wilderness study require- of access to isolated, but nonsurrounded, non- ments of section 603 of the BLM Organic Act Federal lands. Construction of surface trans- of 1976. All roadless areas of 5,000 acres or portation systems through wilderness areas more, identified by the BLM as possessing is prohibited without specific congressional wilderness characteristics, are to be classi- approval. No statutory mechanism exists, fied for wilderness study as potential addi- however, to review the need for any such ex- tions to the National Wilderness Preservation ceptions. In Alaska, where there are large System. They must be managed so that their areas of Federal lands proposed for wilder- wilderness character is preserved until the ness status, a lack of extensive surface trans- final administrative and legislative reviews portation, and topographic and engineering are completed. The interim management of restrictions that limit the availability of possi- these areas restricts any uses that might ble access routes, express congressional ap- damage their wilderness value. Consequent- proval will be required for any future surface ly, most surface access uses and transporta- transportation systems that cross wilderness tion modes commonly used to move bulk min- areas. erals are prohibited. Interim restrictions on 220 ● Analysis of Laws Governing Access Across Federal Lands

access across wilderness study areas could The classification of a river as wild, scenic, delay expansion of Alaska’s surface trans- or recreational is made according to certain portation network. characteristics, including its accessibility by road; wild rivers are the least accessible, The access provision of the Wild and scenic rivers are more accessible, and rec- Scenic Rivers Act distinguishes between the reational rivers are the most accessible. components of this system that are managed Rivers are to be managed to preserve the by the Secretary of the Interior and those that values that led to their initial designation and are managed by the Secretary of Agriculture. classification. Therefore, any access use that Rights-of-way across wild and scenic rivers might be detrimental to these values would be areas that are under the jurisdiction of the discouraged. Secretary of the Interior are governed by the access provisions applicable to the National The remaining Federal land management Park System. Rights-of-way over components systems—the public lands, the National Wild- that are managed by the Secretary of Agri- life Refuge System, and the National Forest culture are governed by the access provisions System—all have specific statutory authority applicable to the National Forest System. to grant access across management areas.

TRANSPORTATION AND MINERAL RESOURCE DEVELOPMENT

Problems stemming from Alaska’s limited Legislative designation of new additions to transportation system are compounded by the national conservation systems will affect the lack of long-range transportation plans. the availability of Federal lands for transpor- Access constraints on mineral-related activ- tation systems. Rights-of-way across lands in ities are greatest in those regions where conservation classifications are not available there is no surface bulk transportation. under the same conditions as rights-of-way Where some surface transportation already across unreserved public lands. exists, the potential for mineral resource development could be expanded through the Decisions about the size, costs, routes, and improvement of existing facilities to allow associated land use of major transportation movement of minerals on a large scale.2 systems cannot be made without appropriate governmental planning. Alaska is now in the ZThere are, of course, many other factors that have process of assessing various proposals for deterred mineral resource development in Alaska and meeting statewide transportation needs. there are diverse opinions as to the likelihood of large- scale hard-rock mineral development in the future. See: Whitney, supra, note 1; Bradford H. Tuck, Land Use Legal, physiographic, and engineering con- Planm”ng, the (D12) Lands, and Alaska Resources; Some siderations can dictate the choice of one Economic Considerations, Federal-State Land Use Plan- route over another. Although proposed na- ning Commission for Alaska, August 1977; John V. Kru- tional conservation units may include some tilla and Sterling Brubaker, Alaska Nationcd Interest natural access routes, it is not presently Land Withdrawals and their Opportunity Costs, Febru- ary 1976, reprinted in House Comm. on Interior and In- possible to determine which routes will be sular Affairs, Subcomm. on General Oversight and needed to serve future community and re- Alaska Lands, Background Information for Alaska source development needs. The Federal-State Lands Designations, 95th Cong., 1st sess., (Comm. Print Land Use Planning Commission for Alaska No. 4, 1977) at 158; and Paul Engelman and Bradford (FSLUPCA) was given a statutory mandate to Tuck with Jerry D. Kreitner and Dennis M. Dooley, Transportation and Development of Alaska NaturaJ l?e- identify transportation routes and necessary sources, Federal-State Land Use Planning Commission easements. It concluded that the State’s eco- for Alaska, March 1978. nomic and transportation needs were not suf- Ch. 7 Options for Congressional Consideration ● 221

ficiently defined to designate specific trans- ities should be built. The lack of such informa- portation corridors.3 Until the information tion will hamper decisionmaking by Congress necessary to formulate long-range planning is and Federal land managers, as well as by available, there can be little certainty about non-Federal landowners and mineral re- when and where future transportation facil- source developers.

ACCESS POLICY OPTIONS

Five general legislative access policy op- rights-of-way for transportation tions (see table 5) were developed to present systems through conservation a range of approaches to the policy question lands. of whether and for what purposes access 5. The restriction on the use of Alaskan should be permitted across Federal lands in conservation system lands for access. Alaska. These access options deal only with Alaska lands. In developing and selecting these access The legislative access options are: policy options, five common components of each option were identified. The five com- 1. The application of existing access poli- ponents are: cies to Alaskan additions to national conservation systems. 1. The access policy decision—whether or 2. A deferral of congressional action on an not to permit the use of Federal lands for access policy for Alaskan conservation access use. system lands. 2. The timing of the policy decision. 3. Limited provisions for Alaskan access needs. 3. The legislative implementation of the (A) An Alaska Lands right-of-way pro- policy decision. vision; and 4. The executive implementation of the leg- (B) The exclusion of access routes from islative policy decision. conservation system classifications by means of boundary adjustments 5. The relation between the access policy and land exchanges. and how Alaskan transportation system decisions are to be made. 4. Alaskan transportation system access provisions. The central component of each option is (A) An Alaskan transportation system whether or not to allow the use of Federal right-of-way provision; lands for access purposes. If allowed, access (B) The designation of specific trans- is authorized through the grant of a right-of- portation corridors to accommo- way or permit to cross Federal lands to reach date the development of the trans- non-Federal lands. Congress may choose to portation system; and allow or to deny access, or it may adopt a (C) The establishment of a special com- combination approach which allows access mission to review and recommend in some instances and denies it in others. This could be done by imposing conditions on al-

3 lowable access for a certain class of users, or Federal-State Land Use Planning Commission for Alaska, “The D-2 Book,” Lands of National Interest in purposes, or for particular geographic re- Alaska, May 1977, at 129. gions or conservation units. 222 ● Analysis of Laws Governing Access Across Federal Lands

The second component is the timing of con- isting access provisions appeared to be inade- gressional action. Congress could decide now quate. on an access policy as part of the d-2 legisla- The fourth component is the selection of an tion or it could pass legislation specifically approach for executive implementation of the deferring a decision on either the access access policy decision. This entails first nam- issue alone or on the entire d-2 lands pro- ing an agency or a department to carry out posals. Congress could also decide not to take the legislative policy, and then adopting a action on the d-2 lands proposals, an access decisionmaking process for implementation. policy, or a specific deferral of the access [This designation of an agency and a proce- decision. dure can be express or implied.) If there is no The third component is the selection of a contrary legislative declaration, additions to legislative approach for implementing the ac- existing national conservation systems—Na- cess policy decision. There are three ways in tional Parks, Refuges, Forests, Wilderness, which Congress can implement its access and Wild and Scenic Rivers Systems—are policy decision. The first is to take no specific managed by the departments and agencies legislative action on access. This would be currently responsible for the management of done by making no provision in the d-2 lands each of these systems under existing laws legislation for access use of lands designated and procedures. for conservation systems. The effect of this Congress could also modify existing agen- approach, in the absence of express legisla- cies and procedures or establish a new man- tive provisions, would be to extend by impli- aging agency or decision process, An exam- cation the existing laws and institutional ple would be the establishment of a joint Fed- mechanisms that control the access uses of eral-State commission to review and coordi- designated lands. For example, the classifica- nate the access uses of Alaskan conservation tion of some d-2 lands as wilderness would system lands. Such a joint commission would deny indefinitely most access uses in those be a new executive body and its reviewing areas by the operation of the Wilderness Act authority would be a modification of the ex- prohibitions. On the other hand, placing the isting decision process. same lands in a system with a broad purpose right-of-way provision would imply that ac- The fifth component is the relationship be- cess across these areas would be allowed, in tween the access policy and how Alaskan the discretion of the managing agency, under transportation system decisions are to be existing laws. made. The need for transportation, the selection of mode and routes, and the method for The second legislative approach would be financing the system are all determined to enact a specific provision setting forth the under the existing decisionmaking apparatus conditions for the access use of Alaska lands. of the Department of Transportation (DOT).4 This could take the form either of a new sepa- Congress can continue the existing institu- rate provision of law or of an amendment to tions and procedures, or it can modify the ex- an existing law governing Federal land man- isting situation, for example, by adding a joint agement systems. The specific additional commission or advisory panel to the decision access assurances or limitations would be in process, or by requiring congressional review accordance with the basic access policy and approval of transportation system pro- adopted by congress. posals involving the use of d-2 lands. Con- gress can also expressly set a transportation The third legislative approach would be to rely on existing laws and policies, but to increase legislative oversight to ensure that the 4See discussion of section 4(f) of the Department of congressional intent is carried out. Remedial Transportation Act in chapter 6 for a description of legislation could be enacted if and when ex- transportation decisionmaking procedure. Ch. 7 Options for Congressional Consideration ● 223

policy by banning the construction of surface mented approvals of large-scale projects transportation systems on conservation sys- that cross several management systems tem lands. This ban would have the effect of could be limited. restricting the choices of both the mode and ● Long-range planning—State and local the routes of potential transportation sys- governments and Native Regional and tems. Another possibility is that Congress Village Corporations could be required could specifically encourage a mode or route. to submit long-range plans for access This could be done, for example, by including and other future resource development a right-of-way provision for the possible needs to minimize ad hoc decisionmaking future expansion of the Alaska railroad on transportation systems and the prolif- through certain conservation system units. eration of access routes. There are a number of additional condi- ● National security—special access ex- tions that could be included in developing ac- ceptions for emergencies such as na- cess policy options for Alaskan lands. Some of tional defense needs or critical mate- these are: rials shortages could be provided. ● political-approval and review by local, State, and/or Federal bodies could be Each of the access policy options is dis- required as a prerequisite to granting cussed below. The discussion includes the op- access. tion, its modifications, its advantages and disadvantages, and the potential effects on ● Environmental—environmentally ac- mineral exploration and development activ- ceptable construction standards could ities. Each option was structured to present a be required (both on and off Federal particular approach to the access issue so lands) to minimize damage to protected that its advantages and disadvantages would scenic, ecological, and wildlife areas. become more apparent. No single option was ● Economic—the disclosure of financial designed to meet the needs of all interest and ownership information could be re- groups. Consequently, a combination of sev- quired for right-of-way permits; trans- eral options may prove to be the most com- portation systems could be required to prehensive approach to the dual character- be wholly or partially financed by bene- istic of access—the access needs of non-Fed- ficiaries; Federal aid or direct grants eral landowners to cross Federal areas to could be provided for transportation reach their lands and the potential broader projects to serve conservation systems need to construct major transportation sys- and mineral development; loan guaran- tems across Federal areas to serve economic tees or other financial incentives for development and community needs. Alaskan transportation systems could be It should be kept in mind, however, that the provided. choice of an access policy for Alaska d-2 ● Administrative—time limits could be im- lands involves a balancing of many competing posed for processing applications for ac- interests and values, not just the access cess permits and rights-of-way, and needs for the development of hardrock miner- agencies could be required to coordinate al resources of non-Federal lands, which is their review of all applications; seg- the focus of this assessment. 224. Analysis of Laws Governing Access Across Federal Lands

OPTION l–THE APPLICATION OF EXISTING ACCESS POLICIES TO THE ALASKAN ADDITIONS NATIONAL CONSERVATION SYSTEMS (STATUS QUO)

Option 1, or the status quo approach, be evaluated under the existing decisionmak- would extend the existing access policies of ing processes. The most available Federal Federal land management systems to the con- lands for access needs would be National servation systems additions. Congress would Forest System and public (d-1) lands, except designate specific areas as parks, wildlife those in wilderness study or other limited-use refuges, forests, wild and scenic rivers, or classifications. Right-of-way approval is left wilderness areas. No express legislative ac- to the discretion of the managing agency. The cess provision is needed to extend the ex- use of wilderness areas for transportation isting land management system access poli- routes would require congressional approval cies to the new additions. Special access pro- in most cases. The use of park, refuge, or wild visions that relate to management program, and scenic rivers systems lands for access administrative, or recreational access pur- must be consistent-with the purposes of the poses could be included without altering the system. The grant of access is left to the basic thrust of this approach. An example of discretion of the agency. Furthermore, the such a special provision would be an excep- use of park and refuge lands would be subject tion for the established use of snow machines to a 4(f) review for DOT-funded projects.5 or aircraft in wilderness areas for recre- Planning, approval, and construction of ation, local travel, or subsistence purposes. transportation systems would continue to be the responsibility of existing State and Feder- To implement this policy, the managing al transportation agencies and departments. agency of each system would apply the right- of-way and access authorities, regulations, The extension of existing access policies to and procedures now in force. This option Alaskan conservation units does not mean would continue the variations in access poli- that those policies are fixed in their present cies that currently exist among the different Federal land management systems. %ee discussion of section 4(f) of the Department of Under Option 1, grants of access would Transportation Act in chapter 6. DOT 4(f) review is an continue to be made on a case-by-case basis, independent review to determine whether there is a and the determination would depend on the prudent and feasible alternative to a proposed use of park, refuge, or recreation lands, or a historic site for a specific circumstances of each application. transportation project. If not, then DOT funds can only Requests for the use of Federal lands for the be expended if every effort has been made to minimize development of transportation systems would damage. Ch. 7 Options for Congressional Consideration .225

form. Current laws could be modified in re- under this option. There would also be im- sponse to specific access problems, to new in- provements in existing transportation sys- formation generated from the ongoing Alas- tems. Ad hoc decisions to allow the access kan Mineral Resources Assessment Program use of Federal lands, such as the Trans- (AMRAP), to wilderness and transportation Alaska Oil Pipeline authorization, could oc- planning studies, or to changes in congres- cur in response to specific needs. sional or public sentiment. Congress may enact legislation to review or to change the The effects of implementing Option 1 will access provisions of Federal land manage- vary according to the area and system in- ment laws. Moreover, under the broad dis- volved. In some areas (such as nonsur- cretionary management authority vested in rounded isolated lands in some wilderness the Secretary of the Interior and the Secre- areas and parks) access uses may be denied tary of Agriculture, some access policies and without any express congressional action. In regulations may be changed administratively other areas, access to non-Federal mineral in response to specific problems. lands will be unaffected or at least reasonably available, as long as the existing trans- Under this option, the shortcomings and portation systems can be improved, as neces- uncertainties of the access provisions in the sary, for mineral resource development,6 and existing laws would continue. Consequently, there are no blockages by tracts of Federal mineral exploration and development activ- lands. As roadless BLM-public land areas are ities on non-Federal lands in isolated areas, identified and placed in the protected wilder- where it might be necessary to cross park or ness review category, the availability of ac- wilderness lands, might be deferred or aban- cess across d-1 lands could become a future doned. By settling the question of the manage- source of uncertainty for resource devel- ment system classification for most of Alas- opers. ka’s remaining lands, the d-2 land designations would reduce some of the uncertainties about access. ‘Recognized rights-of-way, established by public use as roads or trails before the 1976 repeal of 43 U.S.C. Transportation system planning and devel- 932, are existing access rights and thus should be unaf- opment would continue at its current pace fected by d-2 land designations.

OPTION 2–THE DEFERRAL OF CONGRESSIONAL CONSIDERATION OF AN ACCESS POLICY FOR ALASKAN CONSERVATION SYSTEM LANDS

ACCESS TIMING OF IMPLEMENTING POLICY ACCESS LEGISLATIVE INSTITUTIONAL TRANSPORTATION DECISION DECISION IMPLEMENTATION ARRANGEMENT SYSTEM DECISION Specific deferral of ac- Deferral-now; Access Specific deferral provi- Existing institutions. Existing decision cess policy involv- decision--later. sion in d-2 Iegisla- mechanism--transpor- ing d-2 designations tion. tation systems use of and remaining Federal Federal d-2 Iands lands in Alaska until a delayed until policy certain date, or some decision. event in future, or indefinitely. 226 “ Analysis of Laws Governing Access Across Federal Lands

Under Option 2, Congress would specifi- or in a specific year, such as 1990. It could be cally defer the question of the access use of based on some future event, such as the com- Alaskan conservation system lands. There pletion of ongoing and proposed studies deal- are several means of deferral. In enacting the ing with Alaskan resources and transporta- final d-2 designations, Congress could include tion issues; completion of the AMRAP sur- a provision specifically deferring the adop- veys; the final conveyance of the State and tion of an access and right-of-way policy for Native land selections; the completion of Alaskan conservation system units for future State or regional transportation plans; or the consideration. This delay could provide time completion of the approved management for new and ongoing studies to be completed plans for the new units added to conservation and for specific Alaskan transportation sys- systems. tem project proposals to be prepared. (Alter- As part of the deferral, Congress could re- natively, Congress could delay action on the quest new studies and recommendations d-2 proposals and extend the legislative about access policies from the land manage- “deadline” imposed by the expiration of d-2 ment agencies, from the State, or from a com- withdrawals on December 18, 1978.) In addi- mission specifically established to deal with tion, Congress may specify the procedure to access questions in Alaska. The studies could be used in its future considerations of the ac- include an examination and report on needs, cess issue. In the interim, existing access on routes, on possible system modes, and on policies could be applied to the d-2 additions financing arrangements. The continuation of to the conservation units, or alternatively, the FSLUPCA or the establishment of a special deferral could be combined with a morato- administrative task force to conduct the rium on agency approval of any nonessential studies could provide opportunities for the access use of Alaska National Interest Lands. participation of interested groups. If no moratorium on nonessential access Under Option 2, existing land management uses is imposed, Option 2 is similar to Option agencies would be responsible for both the in- 1 in that the access policies of existing land terim policy implementation and for the man- management systems are applied to Alaskan agement of the designated additions. If a spe- conservation system additions. However, by cial commission or a task force is established, deferring the decision on the final access it would operate in conjunction with existing terms and conditions, Option 2 continues the State and Federal institutions responsible for period of uncertainty about access policies of land management and transportation system some Federal lands. This uncertainty could decisions. discourage the expansion of mineral exploration and development in affected regions. Congress could also include in this option This option also allows time for specific the institutional mechanisms under which studies to be completed (such as AMRAP and future legislative review would be conducted. wilderness reviews), for final Native and Two examples of such mechanisms are the State landownership patterns to be deter- “legislative deadline” for action on the d-Z mined, and for State transportation planning land withdrawals in ANCSA and the review to proceed. mechanisms in the Trans-Alaska Pipeline Au- thorization Act and the Alaska Natural Gas The advantage of this option is that it Transportation Act.’ would assure future congressional review of the access issue and thus would provide an The chief advantage of this option is that opportunity for the consideration of addi- deferring consideration of the access issues tional detailed information and for the emer- associated with the d-2 land additions pro- gence of clearly defined access needs. The vides more time for resolving a number of the time for such a reconsideration could be set at some future date, such as in 2 or 10 years; 7See discussion of these Acts in chapter 5. Ch. 7 Options for Congressional Consideration ● 227

uncertainties that have troubled the debates forts, to date, have been substantial, but over Alaska’s future. These uncertainties uncertainty remains about which areas, if arise from a lack of information about such any, will be developed. Alaska has estab- factors as final landownership patterns, min- lished a Department of Transportation and is eral resources, and transportation needs and working toward developing a State transpor- routes, as well as from a lack of a clear com- tation plan and a set of priorities. Deferral mitment, either governmental or private, to would allow time for both State and private the economic development of Alaska’s hard- efforts to proceed. This would improve the ef- rock mineral resources in the near term fectiveness of the information on which the (pre-1990). The potential active mining opera- final decision is based. tions have not as yet been identified, and con- If extensive park and wilderness designa- sequently, the associated transportation and tions are made, the deferral of a final access other needs also have not as yet been deter- policy decision for Alaska lands could pro- mined. Additional time could permit a more vide the mechanism under which the ade- specific legislative response. In the interim, quacy of existing access policies could be national resource lands would be protected, evaluated and specific needs to cross these and the management classifications of ap- lands could be addressed. In the meantime, proximately half of the Federal land in the lands would be protectively managed and Alaska would be settled. Even though d-2 land the existing access policies would be con- designations will answer the question continued. cerning which of the land management systems will control certain areas of Federal Option 2 also has several disadvantages. land in Alaska, there will still be uncertain- One of these is caused by the continued un- ties over Federal land management policies. certainty about whether and under what conditions Federal conservation systems lands Management plans must be prepared for can be crossed to reach non-Federal lands, or the d-Z conservation system additions. These can be used for transportation systems. The plans might include proposed facilities that continued uncertainty about the availability could be coordinated with the transportation of Federal lands will delay the commitment of needs of surrounding regions. Areas with resources for the planning and evaluation of special environmental, wildlife habitat, ar- proposed transportation systems that would cheological, and historic values could be iden- require the use of Federal lands. tified so that adequate measures to protect these areas could be incorporated into the ac- Many of the ongoing and projected studies cess policy for each management unit. previously mentioned could proceed independently of any access decision deferral. It is probable that, under section 603 of the Consequently, the information base will con- BLM Organic Act, large areas of wilderness tinue to expand. But even after completion of on the remaining d-1 public lands will be in- these studies the amount of additional in- ventoried and studied for inclusion in the Na- formation that might have an influence on the tional Wilderness Preservation System. In- access policy decision may not be substantial- terim protective management of these lands ly increased over what is presently known. will limit their availability for access pur- For example, AMRAP surveys are, at best, poses. only superficial inventories because their expenditures and focus are not sufficient to There is very little detailed information ascertain the exact economic mineral poten- about the mineral resources potential of tial of an area or its likelihood of develop- many areas of Alaska on which to base trans- ment. portation planning. It is now anticipated that AMRAP surveys will not be completed until Uncertainty about the availability of future after 1990. Private mineral exploration ef- transportation routes could deter the expan- 228. Analysis of Laws Governing Access Across Federal Lands

sion of some mineral exploration and develop- and management classification of adjacent ment in those areas where no alternative Federal lands would discourage mine plan- transport system has been proposed. Even if ning and add to the long leadtimes involved in during the period of deferral no moratorium planning, developing, and constructing large were to be placed on access uses, many such mines (as long as 10 to 20 years according to 8 uses would be limited because an agency industry sources). might be reluctant to approve any nonessential rights-of-way or easements for transpor- This view was confirmed during interviews con- tation systems, which might be contrary to an ducted by Dr. F. J. Wobber, OTA project director, in eventual congressional policy. January 1977. Meetings were held with the staff of the College of Mineral Industries, and Minerals Industry Another means of delaying an access poli- Research Laboratory, University of Alaska, with Dr. C. cy decision is to defer passage of Alaska Hawley, Alaska Miners Association; and with others Lands legislation. (As discussed previously, familiar with mining. Additionally, interviews con- an access policy is inherent in the d-Z lands ducted in Arizona, Colorado, and Wyoming in May 1977, suggested that similar views were widely held by designations.) However, in the judgment of mining groups outside of Alaska. A list of persons and those familiar with the mining industry, con- groups interviewed during the course of this assess- tinued uncertainty about the access policy ment is included in appendix C.

OPTION 3–LIMITED PROVISIONS FOR ALASKAN ACCESS NEEDS

Congress could provide some relief from tion 3A, provides for a special right-of-way the anticipated effects of the application to provision for Alaska natural resource lands Alaska lands of the existing access and right- that would be applicable to all Federal con- of-way policies of Federal land management servation systems in Alaska; and the second, systems. This would ease the impact on those Option 3B, provides for the exclusion of non-Federal landholders who could be af- transportation system routes from conserva- fected by the establishment of large areas of tion systems classification by making minor protectively managed Federal lands. Two ap- boundary adjustments and land exchanges. proaches are considered here: The first, Op-

OPTION 3A–ALASKA LANDS RIGHT= OF= WAY PROVISION

-- 2.

.=, - , Ch. 7 Options for Congressional Consideration ● 229

Option 3A provides for a special right-of- which are not surrounded by any single one way authority that would modify the existing of them. The Federal land manager would be access policies as they apply to Alaska, thus able to require specific terms and conditions giving a legal assurance of access to non-Fed- to protect Federal land values. The implemen- eral landowners who might need to cross con- tation of this provision should be carried out servation system lands. A major purpose of in the spirit of the land grants. In the same this option is to provide land management spirit, the provision would allow for the agencies with the clear authority to grant waiver of right-of-way rental payments, for rights-of-way across Federal lands to reach reciprocal access agreements, and for the mineral resources on non-Federal lands. This use of program facilities for access, such as provision would partially address the short- Federal agency docks, roads, and airstrips. comings identified in the access authorities of certain systems (such as parks, wilderness, The unprecedented Alaska Native and and some wild and scenic river components) State land grants were made by Congress and with those systems (such as refuges and with the intent that the future development of national forests) that have an adequate, but the resources of these lands would form the discretionary, right-of-way authority, which basis for the economic independence of the requires the satisfaction of certain standards State and of the Native Corporations. To convey these lands without reasonable assur- of compatibility. ance of the continued ability to reach and de- This special right-of-way authority would velop the resource potential would conflict assist those landowners requiring access with the promise of the original grants. across Federal lands to non-Federal lands. It would remedy the shortcomings of some ex- Both the State of Alaska and the Native isting right-of-way provisions, such as the Corporations have reasonable and under- lack of any clear statutory permission to standable demands that the management of grant rights-of-way over National Park Sys- the remaining Federal lands in the State not tem lands for access to non-Federal lands. constrain development activities on non-Fed- This option also addresses those instances eral lands. At the same time, other groups where Federal landownership patterns, to- contend that activities on non-Federal lands pography, transportation, and other local should not be allowed to threaten the present site-specific circumstances might combine to and future value of Alaska’s wildlife, primi- isolate non-Federal lands. If these lands are tive wilderness, and other natural resources, not “wholly surrounded” by a single Federal which would be preserved and protected system, or subject to existing rights, the ac- under proposed d-2 legislation. Congress is cess guarantees written into the Wilderness faced with balancing these potentially con- Act may not apply because the situations are flicting demands. not within the exact letter of the law. In such Option 3A is an example of an approach circumstances, this special right-of-way pro- that is intended to balance the demands for vision could be invoked to permit the neces- development and conservation. This could be sary access. accomplished as follows: As part of the implementation of the Native ● Through a right-of-way provision, exclu- claims settlement and statehood land grants, sively applicable to Alaska, that would this special right-of-way provision would en- ensure adequate access to non-Federal sure that there would be adequate access to lands isolated by Federal holdings, to- non-Federal lands and to the transportation pography, or transportation system pat- routes needed for their development. This terns; and provision would allow access through adjacent Federal lands to the owners of lands that ● By requiring that any access grants abut on several Federal land systems, but would ensure that the natural resources, 230. Analysis of Laws Governing Access Across Federal Lands

esthetic, and other values of the Federal of access are available under the circum- lands would be protected. stances. In balancing the conflicting interests, Con- If, for example, a Native Corporation, or its gress might choose to limit this access provi- assignee, seeks access across Federal lands, sion by imposing various other conditions, and there are alternative routes over State or such as: Native lands, it would be proper under this option to inquire whether any effort was Limiting the application of the provision made to obtain the right to cross these other either to certain systems or to geograph- lands. The environmental impacts of the deci- ical areas, e.g., to refuges, to forests, to sion would be evaluated, and the applicant nonwilderness areas, or to specific units would bear the costs related both to construc- or regions; tion and to environmental protection. The requirement for payment of a fair rental value Limiting the use of the special access for the right-of-way might be waived if the provision, e.g., only to State and/or Na- public interest is served. tive Corporations, or only to owners of surrounded and adjacent lands, or only This provision, as a part of the d-2 lands to owners of all isolated lands (lands legislation, would apply to conservation sys- wholly surrounded by Federal lands or tem lands (national parks, refuges, forests, constrained by other legal, topographi- wilderness, and wild and scenic rivers sys- cal, or transportation-imposed condi- tems). Rights-of-way across the remaining tions); or public lands would be evaluated under the Limiting the purposes of access, e.g., for BLM Organic Act, or dealt with in separate public access use, for the development of legislation. Access would be available to certain resources, or for the develop- reach isolated lands or to reach the nearest ment and requirements of a transpor- reasonable transportation network. In con- tation system. sidering reasonable alternatives, rights-of- way in common could be required. The iden- For the purposes of discussion, the follow- tification of potential access needs would be ing right-of-way provision was selected as an included in the management plan for the units example of this type of approach. Legislation in each of the land management systems. The designating additions to conservation systems existing Federal land management agencies in Alaska would include a provision that au- would implement the provision. Applications thorizes the Secretary of the Interior or the for a right-of-way would be filed with the Secretary of Agriculture to grant rights-of- agency managing the unit to be crossed. way to owners of surrounded or otherwise Where multiple units were involved, the ap- isolated non-Federal lands where access is plicant would have to obtain a right-of-way not otherwise reasonably available; or to the for each. However, departmental regulations holders of valid resource development rights could provide for coordinated review of ap- for such lands. The factors to be considered plications involving more than one manage- in an agency’s determination of whether this ment agency. provision can be applied include, but are not limited to: local landownership patterns; the Applications and decisions on the avail- purposes of the management systems in- ability of conservation system lands for the volved; geography; the direction of and the development of major transportation systems distances from the closest adequate transpor- would not be covered by this special right-of- tation network; topography, seasonal con- way provision. Approval for the construction straints, transportation, and population char- of transportation systems across Federal acteristics of the region; the purpose of the lands either for use by the general public or right-of-way; and whether alternative means for regional mineral development, would be Ch. 7 Options for Congressional Consideration ● 231 made under existing State and Federal laws. Federal lands. It should be interpreted broad- Routes through wilderness areas would rely to assure Alaska landholders of reasonable quire specific congressional exemption. This access to their non-Federal lands for re- option provides non-Federal landowners with source development. an assurance of necessary access through

OPTION 3B–THE EXCLUSION OF ACCESS ROUTES FROM FEDERAL CONSERVATION SYSTEMS BY MEANS OF BOUNDARY ADJUSTMENTS AND LAND EXCHANGES

ACCESS TIMING OF IMPLEMENTING POLICY ACCESS LEGISLATIVE INSTITUTIONAL TRANSPORTATION DECISION DECISION IMPLEMENTATION ARRANGEMENT SYSTEM DECISION Local realinementof Now Provisions of d-2 Iegis- Existing institutions Existing transportation conservation systems Iation; or new land decision mechanism— boundaries to exclude exchange authority. local boundary shifts access routes. Land would leave access exchanges to provide routes as public lands access routes for non- (d-1 classification) with Federal landowners, fewer use restrictions with exact locations than parks, etc., and included in d-2 desig- also available for later nations, or by refer- State selection. DOT ence to maps filed 4(f) review of route not later. required in most cases; land exchange would put route in non-Federal ownership.

Another approach to dealing with access is rations and the State have existing rights to to exclude those lands that encompass natu- select Federal lands, a provision allowing the ral, historic, or proposed access routes from exchange of selected lands for necessary ac- Federal conservation systems. There are two cess routes to serve non-Federal lands would primary means of accomplishing this. The be one reasonable mechanism of conveyance. first approach is to adjust the boundaries of particular conservation units so that the The access route exclusion would be ac- route is left out of the restrictive classifica- complished by specifically designating routes tion and is continued in public land status. in the d-2 lands legislation. The excluded This would make the route available for State routes would be identified by specific legal selection or for application for a transporta- descriptions contained in the legislation or in- tion system right-of-way under existing laws. corporated by reference to the final conser- The second approach is to allow non-Federal vation system unit maps that would be com- landowners to acquire the necessary access piled by the departments involved and filed routes from the Federal Government by ex- with Congress within a reasonable period of changing some of their lands for Federal time subsequent to the legislation. Under the lands. This would place access routes under proposals currently before Congress, Federal non-Federal control. Since both Native Corpo-. land management departments would file maps and legal descriptions of final bound- the express criteria and the specific findings aries after the State and Native conveyances of fact that would be required to support are completed. each boundary adjustment. These findings could include that: The implementation of the option to exclude access routes from conservation sys- 1. The area to be excluded is a natural, his- tems would be part of the general responsibil- toric, or proposed access route (should a ities of existing agencies under ANCSA and proposed transportation system not be the Federal land management laws. The constructed within a certain number of State, Natives, and other interested parties years, the land would revert to the origi- would have an opportunity to comment on nal land conservation system); proposed exclusions before the final bound- 2. No other route is reasonably available aries were submitted to Congress. The final (reasonableness would be determined by maps and reports would be subject to con- considering such factors as those de- gressional disapproval. Transportation sys- scribed in the option for the Alaska tem decisions involving the excluded routes Lands right-of-way, Option 3A); would be made under existing laws, and applications for rights-of-way over lands that 3. The proposed exclusion and its proposed are not excluded would be evaluated under uses do not threaten the protected val- existing laws. The provision would set forth ues of the conservation unit involved; Ch. 7 Options for Congressional/ Consideration ● 233

4. Adequate provisions exist to protect en- establishment of new conservation system vironmental values and conservation units, by drawing the boundary lines for con- units from the detrimental effects of servation systems, such as parks and refuges, transportation system development; and so that natural, historic, and proposed trans- 5. The national interest would be served by portation corridors (key mountain passes and river valleys) would be excluded. This exclu- the exclusion. sion leaves these routes classified as public There is an inherent conflict in this ap- lands. Such classification reduces the review proach. Some areas that contain natural ac- and authorizations required for using these cess routes also possess considerable scenic, lands for transportation systems, if a demand esthetic, wildlife, historic, and archeologic should arise for a specific route. Proposed values that should be preserved. But this transportation projects on Federal lands that same land may also be the most reasonable are classified as parks or refuges would re- location for a future surface transport route. quire a DOT 4(f) review by the Secretary of In such a case, because of the land’s unique Transportation. value, the route would not meet the proposed test for administrative exclusion. For exam- At present, the problem with a boundary ple, in Alaska, the proposed Kobuk Valley Na- adjustment alternative is that the locations of tional Monument, Gates of the Arctic Park, many future transportation routes are specu- and Selawik Wildlife Refuge contain major lative and controversial. This is because the conservation values, yet they abut on or are needs and the timing of Alaska’s resource de- crossed by the Kobuk River and other natural velopment are not yet clearly defined and access routes. Excluding these access routes future transportation plans and priorities could weaken the degree of protection of the have not been adopted. There is currently no remaining lands; therefore any exclusion of a statewide consensus on the goals and priori- transportation corridor in these areas would ties of expanded surface transportation. require express congressional action. Many Native groups would oppose the development of a surface transport network be- Another complicating factor in the evalua- cause of the possibility of increased pres- tion of particular routes is the uncertain sures on subsistence resources and rural life- availability of the remaining public lands. styles. However, some of these same groups Under section 603 of the BLM Organic Act, may eventually need access to develop the re- all roadless areas of 5,000 acres or more that sources on Native-owned lands. are identified in the inventory of public lands are to be placed in a wilderness study classi- Another method of excluding access routes fication, which would be managed to pre- from conservation classification is to author- serve those values, pending administrative ize land exchanges in order to provide access and legislative review of their inclusion in the corridors to surrounded or isolated landhold- National Wilderness Preservation System. ers. If mineral-bearing lands were involved, a Wilderness review and potential wilderness simple exchange might not be adequate be- designation may restrict the use of these cause some of the lands that might be ex- lands in the future. Thus, their availability as changed were selected specifically for their access routes is not guaranteed. The exclu- resource potential. If lands of similar value sion of access routes to maintain their public were exchanged for an access corridor the land status would not absolutely guarantee non-Federal landowner could increase the their availability. But, a prior congressional land’s mineral development potential. exclusion would be a factor to consider dur- With the exception of large-scale land ex- ing any future wilderness review. changes by the State, the exchange provision Boundary adjustments could accommodate would probably leave most problems asso- both Alaska’s transportation needs and the ciated with access across Federal lands for 234 ● Analysis of Laws Governing Access Across Federal Lands regional transportation systems unresolved. 3* The lands to be exchanged are approx- In regions, such as northwest Alaska, a re- imately equal in value; if not, a payment gional surface transportation system with its of the difference in cash may be re- supporting feeder routes is likely to cross quired or waived at the discretion of the multiple land management systems and be Secretary; tens, if not hundreds, of miles long. Ex- changes of such magnitude, as a means of 4. The area to be exchanged is a natural, securing a needed transportation corridor, historic, or projected transportation would probably be both ineffective and un- route to non-Federal lands; reasonably complicated. This approach, how- 5. No other route is reasonably available; ever, does offer some relief for local access problems, and might facilitate mineral ex- 6. The proposed exchange poses no threat ploration and development of non-Federal to the protected values of any conserva- lands in some areas. tion unit; Non-Federal landowners seeking to ex- 7. Adequate measures exist to protect envi- change selected lands would request such an ronmental values and conservation units exchange from the Secretary of the Interior from the effects of access use; and (in the case of public lands, refuges, and parks) and from the Secretary of Agriculture 8. The national interest would be better (for national forests). Approvals would be reserved by the exchange. quired to be supported by findings such as the following: The national interest includes the implementation of policies for the development of 1. The non-Federal lands had been selected the lands granted to the State and to the Na- and approved or conveyed under either tives. These policies are reflected in the State the Alaska Statehood Act or ANCSA; and Native land grants which are to serve as 2. The State or Native owner requests the a basis for the economic independence of the exchange of lands to provide access State and of the Native Corporations. routes to other non-Federal lands; Ch. 7 Options for Congressional Consideration ● 235

Under Option 4, congressional authoriza- isfied before any right-of-way could be ap- tion is specifically provided for the use of con- proved. Payment of the fair market value for servation system lands where needed for the the right-of-way as well as for the administra- development of statewide or regional surface tive costs of reviewing the application and transportation systems. An access provision monitoring construction and use of the right- for Alaskan transportation systems would of-way would be required. Where appropri- minimize some of the problems associated ate, the requirements to pay rental and costs with traversing lands managed by different could be waived in the public interest. Trans- agencies under several land management sys- portation system rights-of-way would be tems and access policies. This would be done available to State and local governments, to by establishing a single standard for the ap- Native Corporations, and to private appli- proval of transportation system rights-of-way cants. for all conservation system lands. The Secretaries of the Interior and of Agri- Congress might choose to provide for the culture would be responsible for implement- use of Alaska National Interest Lands so that ing this policy through the Federal land man- transportation network systems can be devel- agement agencies. In addition to the approval oped to serve the economic needs of non-Fed- of a right-of-way, each proposed transporta- eral interests in Alaska. Several approaches tion system project would be independently are examined here: first, the enactment of a evaluated by appropriate Federal, State, and right-of-way provision for an Alaskan trans- local agencies. Opportunities would continue portation system that would be applicable to for public participation during the planning all Alaska conservation system lands; second, and review processes as provided by existing the reservation of specific transportation cor- law. The Secretary of Transportation would ridors through d-2 lands; and third, the estab- conduct an independent review of federally lishment of a new institutional mechanism for aided transportation projects that cross decisionmaking on proposals for crossing parks, refuges, or other protected lands (both conservation system lands. State and Federal). This right-of-way provision in no way diminishes the independent responsibilities of the Secretary of Transporta- OPTION 4A–AN ALASKAN tion for the preservation of parks, refuges, TRANSPORTATION SYSTEM and historic sites, under section 4(f) of the RIGHT-OF-WAY PROVISION DOT Act. As a further condition of this option, ap- This option would enact a single transpor- proval of a right-of-way could be made de- tation system right-of-way provision that pendent on the completion of a comprehen- would be applicable to all Alaskan conserva- sive State or regional transportation plan. tion system units including those classified as This option makes Federal conservation sys- wilderness. This provision would authorize tem lands available as needed under a “float- the Secretary of the Interior (for park and ing” or “blanket” easement right-of-way pro- refuge lands) and the Secretary of Agricul- vision. The Federal lands involved would re- ture (for forest system lands) to grant rights- main within the designated land management of-way for transportation system purposes systems in contrast to approaches under Op- over lands in the national conservation sys- tion 3B that would exclude access routes tems. Specific conditions would require a from conservation systems classification. finding that no other route is reasonably available, and an assurance that appropriate By providing a congressional authorization precautions will be taken to protect the envi- for transportation system rights-of-way, spe- ronmental, wildlife, and historic values of the cific routes and modes can be identified and lands. These conditions would have to be sat- approved as actual needs arise. This option 236 ● Analysis of Laws Governing Access Across Federal Lands

permits State, Native, and private interests to Implementation of this option would be by plan for transportation and, where economic existing land management agencies. Applica- conditions permit, for resource development. tions for use of the corridor would be made to Existing review procedures in the Depart- the Secretary of the department having land ments of Agriculture, Interior, and Transpor- management jurisdiction over the proposed tation, and other agencies for transportation route. Decisions about requirements, modes, system needs, routes, modes, and rate regula- and financing would be made under existing tions would be continued. Since federally transportation laws, but the allowable routes aided transportation projects are expected to through Federal lands would be predesig- be a major component of any Alaskan re- nated. If any variation of the route from the source development, Congress would con- designated corridor were needed, the approv- tinue oversight and project authorization al of the variation would be made under exist- approval, as well as approval over funds, ex- ing law. Use of the corridor would be avail- penditures, and appropriations. able to State, Native, and private applicants who demonstrate that they have a need for constructing a transportation system and OPTION 4B–THE DESIGNATION that an alternative route that does not use OF TRANSPORTATION CORRIDORS conservation system lands is unavailable. THROUGH ALASKAN Independent 4(f) review by the Secretary of CONSERVATION SYSTEM LANDS Transportation would be required for federally aided transportation system projects that use corridors through State or Federal park The second approach would be to desig- or refuge lands. The adoption of all prac- nate specific easements or corridors through ticable measures to minimize environmental Federal conservation lands and to permit the damage from the construction and operation Secretaries of Agriculture and of the Interior of the transportation system would be re- to authorize the development of transporta- quired as a condition of right-of-way ap- tion systems only within these corridors. Ap- proval. proval of rights-of-way over other conservation unit areas with no designated corridors Specific fixed transportation easements would be granted only under the standards in (public need corridors) through d-2 lands that existing laws. This approach differs from the encompass historic, natural, or projected ac- boundary adjustment of Option 3B in that a cess routes to non-Federal areas would limit corridor remains part of the system and access uses to selected corridors. These cor- would include areas where the simple re- ridor lands would be included in the conser- alinement of a boundary would be insuffi- vation systems, but would be made subject to cient to exclude an access route. Instead of a right-of-way or easement for existing or making specific reservations in d-2 legisla- future transportation uses. The specific cor- tion, the final designation of corridors could ridors could be defined in the legislation or in- be left open for specific legal description in cluded by reference by filing maps and re- the process of preparing management plans ports within a reasonable time period after and maps of the final boundaries. There passage. would be opportunities for participation and review by State, local, Native, conservation, One problem with the designated or fixed mineral, and other interests. A reasonable corridor approach is that designated corri- period of time would be allotted for the prep- dors might not be adequate for future mineral aration and review of corridor descriptions, transportation needs because of the limited maps, and management plans. They would be information currently available about the incorporated by reference in the d-2 lands locations of future transport routes and the legislation. timing of resource and transportation devel- Ch. 7 Options for Congressional Consideration .237 opment. This could give rise to demands for commission would have as part of its institu- additional access routes over Federal lands. tional mandate the responsibility for reviewing and recommending proposals for major Under Option 4B, existing decisionmaking Alaskan transportation systems. The commis- mechanisms for specific transportation proj- sion would review applications for rights-of- ects would be utilized and existing authorities way across Alaskan conservation system for land management systems would not be lands for major transportation systems. The altered. These would remain in effect for Secretary of the Interior (for national park rights-of-way for feeder lines and for trans- and refuge units) and the Secretary of Agri- portation systems outside of the fixed cor- culture (for national forest units) would be ridors. (For example, under the fixed-corri- authorized to grant final approval of the dor provision, a railroad might be con- rights-of-way. structed in a predesignated corridor, but a right-of-way for a feeder road from a mine of Approval of the rights-of-way would only an adjoining Native Corporation to an ore- be issued after the application had been loading facility on that railroad would be favorably reviewed and recommended by the granted under existing access authority.) new Federal-State commission. The commission would conduct reviews as part of its overall institutional responsibilities, which OPTION 4C–A NEW INSTITUTIONAL could also include land management and MECHANISM FOR THE REVIEW OF transportation planning. As part of its plan- RIGHTS-OF-WAY FOR ALASKAN ning responsibility, the commission would TRANSPORTATION SYSTEMS identify those areas where major transportation systems would have to cross conservation units or other Federal land. Under this approach, Congress would establish a new decisionmaking mechanism and The composition of the commission would a new authorization for rights-of-way for ma- include a broad representation of interests: jor Alaskan transportation systems. Major Federal and State governments, officials of transportation systems are those systems land management and transportation agen- that would have a substantial impact on envi- cies, and private and Native groups. After a ronmental values and would be incompatible public hearing, or other similar opportunity with the purposes of any national conserva- for participation by interested parties, the tion system units to be crossed. The respon- commission’s recommendations together with sibility for this review and recommendation studies and dissenting views would be for- could be delegated to existing agencies, to the warded to the appropriate Secretary, who State, or to a joint commission. The decision- would then make a final decision. making process would include consultation and coordination between the primary land Representatives of the affected Federal management agency and the new review or- land management agency would participate ganization. Final approval for rights-of-way during the commission review. In making a would rest with the Secretary of the depart- final decision, the Secretary would have the ment involved, with the President, or with benefit of diverse views from competing in- Congress. This new mechanism would include terests and could give attention to the manag- both a new right-of-way authorization and im- ing agency’s recommendations in balancing plementation provisions. any conflicting demands. The final decision to approve transportation system rights-of-way For the purposes of evaluation and com- would remain with the Secretary of the man- parison with other options, a joint Federal- aging department or with the State and pri- State commission was selected as illustrative vate owners for jointly managed non-Federal of the new decisionmaking mechanism. This lands. 238 “ Analysis of Laws Governing Access Across Federal Lands

The applications for major transportation There is a potential problem with dele- system rights-of-way would be filed with the gating part of the responsibility for the re- appropriate Secretaries and forwarded for view of transportation system decisions in- review to the joint commission. The manage- volving Federal lands in Alaska to a commis- ment of conservation system lands and the sion. This split responsibility might under- final approval of the right-of-way would rest mine the authority of the Federal land man- with the Secretary who has jurisdiction over ager to control the adverse environmental the unit crossed. The requirements for the and other effects that could result from using preparation of environmental impact state- Federal conservation system lands for access ments and other reports mandated by exist- and thus defeat the legislative purpose of pro- ing laws would continue. However, by inter- tecting these lands, agency agreement, the joint commission could Like Options 4B and 4A, Option 4C sets participate in the studies. forth a policy choice for authorizing the approval of transportation system rights-of-way The final approval of specific projects, in- across conservation units. The availability of cluding decisions about routes and modes, specific routes would, however, depend on would still be made by existing Federal and their identification during the planning proc- State transportation agencies. The modifica- ess. The approval of actual requests for tion of the transportation. system decision- transportation rights-of-way for specific making process would not alter existing re- transportation projects could then follow. quirements for an independent 4(f) review This option, however, provides a means of before federally aided transportation proj- assuring that the future transportation needs ects using State or Federal park or refuge of the State and of Native Corporations are lands may be approved by the Secretary of accommodated in the management of the land Transportation. added to conservation systems.

OPTION 5–RESTRICTION ON ACCESS ACROSS ALASKAN CONSERVATION SYSTEM LANDS

.- . ‘ , . “- +

In contrast to the previous four options, limits the nonessential access use of Alaskan which deal with policies that would facilitate conservation lands. This option adds a fur- access through conservation units, Option 5 ther measure of protection and preservation Ch. 7 Options for Congressional Consideration “ 239 to the scenic, wildlife, recreational, and his- would be required before any nonexempt ac- toric value of these lands. This option does cess use would be granted for these lands, not impose a complete ban on crossing Feder- such as a nonexempt right-of-way or a trans- al lands to reach non-Federal holdings. Exist- portation system easement. Some existing pri- ing access rights and the needs of non-Fed- vate rights, such as traditional uses and snow eral landowners to reach surrounded or machine use where currently established other isolated lands that have no other avail- would be permitted, provided there was no able means of access would be accommo- undue harm to protected conservation unit dated. However, those landowners who do land. Rights-of-way that have been estab- not fall under existing access rights, and who lished by the public use of roads and trails would be adversely affected by not being able over public land (under Title 43 of the U. S. C., to reach their property, would not be able to section 932, prior to its repeal in 1976 by the obtain rights-of-way to use Federal conserva- passage of the BLM Organic Act) would be tion systems without express congressional recognized; and their continued use, even authorization. The authority, under present over conservation units, would be permitted. law, of Federal agencies to grant rights-of- way and transportation system easements In addition to the restriction on the access across conservation system lands would be use of Federal lands to reach non-Federal limited. This approach is consistent with a areas, rights of access to mining claims policy decision that Alaska lands have such within Federal lands would also be regulated. high value as primitive wilderness, for their In some instances, in order to preserve Fed- scenic beauty, for their wildlife, and for their eral lands, either a land exchange or compen- future enjoyment, that they should be pro- sation would be offered to an owner who re- tected against any use that might be detri- linquished such rights where continued or mental to these values. proposed access use posed a threat to protected values of the surrounding Federal area This option would deny indefinitely most and adequate environmental safeguards access use of Federal lands in Alaska without could not reasonably be adopted. specific congressional action, and thus would limit the discretionary access authority of ex- By limiting the existing right-of-way au- isting agencies (i.e., the power to grant rights- thority of Federal land management agencies, of-way and transportation system ease- Option 5 creates a special category of pro- ments). It would not, however, deny reason- tected conservation system lands in Alaska able assurances of access to owners of sur- with access restrictions similar in purpose to rounded lands or to holders of existing access those defined in the Wilderness Act. Land rights (such as those recognized in the Wil- management program-related activities and derness Act and in the current policies of uses would not be restricted. Where existing various land management systems). Other ac- rights-of-way have been granted, Congress cess uses would be severely restricted in might direct their cancellation on the expira- order to preserve Federal lands. The restriction of the term of the right-of-way, unless tion could apply to all or part of the d-2 con- unreasonable hardship would result. By lim- servation unit designations. Federal land iting the authority of the managing agencies management agencies and the Department of to grant rights-of-way and transportation sys- Transportation would be responsible for the tem easements under existing laws, Option 5 implementation of the policy, and would be imposes a greater restriction than Option 1 bound by the restrictions. since it would modify present access authority. Transportation decisions would be made under existing institutions, but the additional As an additional protection or restriction requirement of congressional authorization on the use of Federal lands, Congress could would be added. Congressional approval prohibit the expenditure of funds without 240 ● Analysis of Laws Governing Access Across Federal Lands prior notice to and approval by Congress for as requiring potential developers to go projects that would require the use of or around large protected Federal areas at sub- adversely affect conservation lands. This re- stantially greater expense. The unavailability quirement would be similar to Wild and Sce- of some Federal conservation system lands nic Rivers System protections. Foreclosing might increase the demands for the use of most access routes across Federal lands in State and Native lands for access routes and Alaska would impose greater restrictions on transportation system development; and surface mobility and development than at might also limit future mineral exploration present, and would discourage planning for and development activities to those regions federally aided transportation projects. Con- that are already served by adequate trans- sequently, it would further deter the mineral port or that do not require crossing Federal exploration and development that is depend- conservation system lands. ent on the availability of adequate bulk trans- Congress could be subjected to pressure portation to markets. for ad hoc or crisis approvals of transporta- Non-Federal landowners who did not fall tion routes and systems. This could lead to within the narrow exemption would not be the construction of environmentally damag- permitted to use Federal conservation lands ing or inefficient routes, while more’ desirable for access purposes. This policy could, in alternative routes are either foreclosed or not some circumstances, impose hardship, such developed because of land use restrictions. 8 Concluding Remarks Concluding Remarks

The Office of Technology Assessment posals for the management of Alaska lands (OTA) was asked to assess the effects of and a variety of access policies have been Federal laws, policies, and practices on ac- presented in various congressional bills, in cess through Federal lands to non-Federal the recommendations of Federal executive mineral-bearing lands. The decision of departments and agencies, in the documents whether or not to allow Federal lands to be of the Federal-State Land Use Planning Com- used for access requires the balancing of mission for Alaska, and in other sources. competing interests and values. In Alaska The laws governing access through pro- these values include wilderness preservation, tected lands constitute only one of the compo- resource development, and the subsistence nents of an access decision. Political, social, culture of the Native peoples. economic, and environmental considerations This report summarizes and analyzes the must also be taken into account. An access laws governing Federal land management policy decision will clarify the terms and con- systems, the laws specifically applicable to ditions under which access can be approved Alaskan lands, and the major environmental for applicants and land managers alike. and land-planning laws that affect access across Federal land management systems. It The access options developed for this re- also presents a variety of options or policy port apply to Alaska where access across alternatives for congressional consideration. Federal lands is an issue of widespread con- These options represent a range of alter- cern. The absence of access options for Fed- natives for dealing with access policy in eral lands in other States should not be inter- Alaska. These options describe alternative preted as meaning that no problems exist out- approaches to the access issues associated side Alaska. In assessing the effects of Feder- with the proposed additions to national con- al laws on access to minerals on non-Federal servation systems called for by section lands, OTA conducted interviews in Alaska, Arizona, Colorado, Wyoming, North Carolina, 17(d)(2) of the Alaska Native Claims Settle- 1 ment Act. and other States. Based on OTA interviews

It would be possible to develop a number of IAppendix C contains a list of persons and groups in- variations and combinations of the policy op- terviewed and a list of consultant and contractor re- tions described in this document. Other pro- ports.

243 244 ● Analysis of Laws Governing Access Across Federal Lands and contractor studies, it appears that there interviews disclosed no instances where min- are few non-Federal minerals access prob- eral development on non-Federal land was lems related to Federal landownership and prevented by the denial of access across regional transportation patterns in States Federal lands. Most non-Federal mineral other than Alaska. These interviews included areas outside of Alaska are adequately representatives of the mining industry, of served by existing transportation networks local governments, of environmental and con- and rights-of-way.2 servation groups, and of other interests. The ‘Many of those interviewed did, however, express management and land use policies for Federal lands concern that Federal land management agency prac- could affect mineral activities on non-Federal lands, A tices sometimes caused access-related problems, study of the environmental and economic conflicts be- (“Practices” means the actions of Federal officials tween Federal lands and adjacent non-Federal lands is when implementing Federal laws, policies, and regula- being prepared by the Conservation Foundation with tions.) Examples of practice-related problems are grants from the National Science Foundation and sev- delays in processing and reviewing of permit applica- eral Federal land management agencies. This report, tions and complying with overlapping or duplicative Neighbors: Conflicts and Opportunities, will be avail- licensing and reporting requirements of Federal and able in early 1979. State agencies. Other interviewees asserted that the Appendixes — \

Appendix A Glossary

The terms below are defined as they are inated throughout. For ore reserve cal- used in this report and supporting OTA work- culations, the boundaries are defined on ing papers. Some may have additional con- the basis of economic criteria. notations deriving from their usage in mining Ultramafic: A particular type of igneous and land management. In this report, how- rock that is low in silica but high in mag- ever, their meaning is limited to these defini- nesium and iron, and occasionally also tions. contains concentrations of nickel, chromium, and asbestos. Access: Generally means a right to cross Vein: Ordinarily a small deposit consisting lands for a given use. of massive fissure fillings of ore min- Deposits— erals. Ore reserves are calculated on the Mineral: A surface or underground area basis of physical boundaries and eco- where sufficient quantities of minerals nomic-technical criteria. occur to warrant exploration. A mineral Easement: One person’s right to make use of deposit may or may not be economically another’s land. It is a right to use rather or technically feasible to develop, de- than a right to possess. A right-of-way is pending on its size, the concentration of one kind of easement. its minerals, and the ease with which Federal Domain: Federally owned lands or in- one or more useful components can be terests in lands. extracted. Placer: A deposit of alluvial material, Federal Land Management Laws: Laws which has the minerals scattered passed by Congress that directly relate to through it. These deposits are found the management of Federal lands, includ- along and in riverbanks, streambanks, ing access. (See also: policies, regulations, and in beach sands. Ore reserves are statutes.) calculated on the basis of physical, Federal Land Management Systems: As used economic, and technical criteria. in this report, Federal land management Porphyry: A large body of rock in or asso- systems refer to the major management ciated with a porphyry, which is an ig- categories for Federal lands. These in- neous rock with the ore minerals dissem- clude: (a) Public Lands, which are managed

247 248 . Analysis of Laws Governing Access Across Federal Lands

by the Bureau of Land Management of the (lands withdrawn to allow Native selec- Department of the Interior; (b) National tions) have also been covered by section Park System, which is managed by the Na- 17(d)(l) withdrawals. The State of Alas- tional Park Service of the Department of ka may not select lands under the Alaska the Interior; (c) National Wildlife Refuge Statehood Act entitlements in most System, which is managed by the Fish and areas covered by the d-1 lands with- Wildlife Service of the Department of the drawals. Interior; (d) National Forest System, which d-2 lands: Under section 17(d)(2) of the is managed by the Forest Service of the De- Alaska Native Claims Settlement Act, partment of Agriculture; (e) National Wil- the Secretary of the Interior was author- derness Preservation System, components ized to withdraw up to 80 million acres of which are managed by the land manage- of public lands for study and recommen- ment agency designated by Congress in dation to Congress for possible additions specific legislation (e.g., the Bureau of to National Park, Forest, Wildlife Ref- Land Management, the Park Service, the uge, and Wild and Scenic Rivers Sys- Forest Service, and the Fish and Wildlife tems. These lands are called d-2 or na- Service); and (f) National Wild and Scenic tional interest lands. The withdrawals Rivers System, components of which are will retain this classification until De- managed by a congressionally designated cember 18, 1978, the congressional land management agency. deadline for action on the proposals. The term d-2 lands is also loosely used to Lands— refer to the lands that will be set aside Acquired: Means lands which the United under the final d-2 proposals enacted by States obtains by deed through purchase the Congress as parks, forests, refuges, or gift, or through condemnation pro- and wild and scenic rivers whether or ceedings. They are distinguished from not the specific parcels were included in public domain lands in that acquired the original d-2 lands withdrawals. The lands may or may not have been original- 80-million-acre limitation in section 17(d) ly owned by the Government. If original- (2) does not impose any limitation on the ly owned by the Government, such lands total number of acres that eventually have been disposed of (patented) under may be included in d-2 lands legislation, the public land laws and thereafter re- or on the number of acres the Secretary acquired by the United States. may withdraw under other authority for d-1 lands: Under section 17(d)(l) of the congressional consideration or classifi- Alaska Native Claims Settlement Act, cation. The d-2 lands are closed to entry the Secretary of the Interior is author- under the public land laws and the min- ized to withdraw public lands for classi- ing and mineral leasing laws; they are fication in order to ensure that the pub- also closed to State and most Native lic interest in these lands is adequately selections under the land grants of the protected. Approximately 60 million Alaska Statehood Act and the Alaska acres not covered by other classifica- Native Claims Settlement Act. tions or withdrawals have been with- Federal: Any land or interest in land owned drawn under section 17(d)(l) as public or managed by the Federal Government. interest lands for further study and clas- Non-Federal: Includes private, State, and sification. No time limit was placed on local government lands but excludes In- the d-1 lands withdrawals. In addition to dian lands, i.e. tribal reservations and the lands under this section, consider- other lands held in trust by the Federal able other acreage including d-2 land Government for a tribe or Indian. In withdrawals as well as Native village Alaska, it refers specifically to Native and regional deficiency withdrawals and State lands. (For information on In- Appendix A—Glossary ● 249

dian lands, see Federal Trade Commis- terest in land owned by the United sion, Bureau of Competition, Staff Re- States within the several States and ad- port on Mineral Leasing on Indian ministered by the Secretary of the In- Lands, 1975; U.S. General Accounting terior through the Bureau of Land Man- Office, Management of Indian Natural agement, without regard to how the Resources; Senate Comm. on Interior United States acquired ownership, ex- and Insular Affairs, 94th Cong., 2d sess. cept—(l) lands located on the Outer (Comm. Print 1976); American Indian Continental Shelf; and (2) lands held for Policy Review Commission, Task Force the benefit of Indians, Aleuts, and Eski- Seven Report on Reservation and the Re- mos. Public Law 94-579, 90 Stat. 2743, source Development and Protection, 43 U.S.C. 1702(e) (1977 supp.). 1976.] Long Term: A projection into the post-1990 Other: Means: (1) “Withdrawn lands”-- period. In Alaska, it is based on the year lands that have been withdrawn and immediately before Native Corporations dedicated to public purposes; (2) “Re- become public corporations. served lands”—lands that have been Lower-48: A colloquial expression used by withdrawn from disposal and dedicated Alaskans to refer to the contiguous 48 to a specific public purpose; [3) “Segre- States. gated lands”--lands included in a with- Metals— drawal, or in an application or entry, or Additive: These include antimony, bismuth, in a proper classification that segre- gates them from the operation of the mercury, tungsten, tin, the rare earths, public land laws. [38 F.R. 35082, Dec. and molybdenum. Their primary use is as special alloy components. 21, 1973] Base: These include copper, lead, zinc, and Public: Only those federally owned lands or aluminum. interests in lands that are managed by Ferrous: These include the three most im- the Bureau of Land Management of the portant metallic elements, chromium, Department of the Interior. Public lands iron, and nickel, used in the manufac- are divided into public domain lands, ture of various types of steel. which have never left Federal owner- Precious: These are gold, silver, and plati- ship; and acquired lands, which are num. They have specialized industrial lands in Federal ownership, are not in applications for communications elec- public domain, and have been obtained tronics, for photography, and for catal- by the Government through purchase, ysis in automobile pollution control de- condemnation, gift, or exchange. vices, respectively. “Lands” include all interest in land, such as surface ownership, mineral Mine Development: The process of acquiring rights, timber rights, and easements. detailed metallurgical, engineering, geolog- Public Domain: Means original public do- ical, technical, and economic data nec- main lands that have never left Federal essary to justify mine planning, construc- ownership; also, lands in Federal owner- tion, and initial startup. For purposes of ship that were obtained by the Govern- this report mine development begins with ment in exchange for public lands or for closely spaced drilling and bulk sampling timber on such lands; also original pub- that requires surface logistical support for lic domain lands that have reverted to evaluation of large deposits. Federal ownership through operation of Mine Size: Underground Mine the public land laws. (short tons of ore mined/day) As defined in the Federal Land Policy Small...... less than 1,000 and Management Act of 1976, the term Medium ...... 1,000 to 5,000 “public lands” means any land and in- Large ...... more than 5,000 . .

250 . Analysis of Laws Governing Access Across Federal Lands

Open Pit Mine Locatable: The locatable minerals, in con- (short tons of ore mined/day) trast to the leasable and salable com- Small...... less than 5,000 modities, have been characterized as Medium ...... 5,000 to 30,000 Large ...... more than 30,000 “hard to find” metallic minerals. Depos- its of these minerals are often geologi- Placer Mine (yd3 mined/year) cally obscured. They are claimed under Small...... less than 600,000 provisions of the Mining Act of 1872, as Medium...... 600,000 to 3,600,000 amended in 1955. Large...... more than 3,600,000 Nonfuel: Those minerals not included in the fuels mineral group. Minerals— Occurrence: The presence of ore minerals Availability: In the broad sense in which in a rock outcropping. In some instances this term is commonly used by mining ore minerals may be present in sufficient personnel, availability is construed as quantities to be classified as a deposit. the right of the public and the mining in- Mineral occurrences are often surface dustry to prospect for and develop indications of underlying mineral de- mineral resources. This includes all posits. steps in the process of mineral resources Production: The output of a working mine, development. i.e., the value or amount of its concen- Concentrate: The product that results from trate and bullion production. milling the ore and segregating the valu- Resources: Naturally occurring substances able minerals. Mineral concentrates are that have properties which can be put to smelted to extract the metals from the man’s use. Mineral resources include ore minerals. nearly all of the elements and many com- Energy or Fuel: Oil and other energy miner- pounds; most are solids, but some are als including geothermal, natural gas, liquids, and a few are gases; and most coal, and uranium. Uranium is an energy are inorganic, but some of the most im- mineral but is treated as a hardrock portant (oil, coal, and natural gas) were mineral because of the similarity in its derived from organic sources. occurrence characteristics. Salable: Certain common variety materials Exploration: Activities leading to ore de- such as sand, gravel, and stone that are posit identification including: regional handled under the commodities disposal mapping, geochemical sampling, geo- system. physical surveying, detailed mapping, and widespaced drilling. Exploration, as Native: A person who is by blood relation one- defined in this study, can be adequately fourth degree or more Alaska Indian, supported by air so that surface trans- Aleut, or Eskimo, or any combination of the portation access is not necessary until three. This includes those whose adoptive mine development appears to be war- parents may not be Natives, or a person ranted. who is recognized as a Native by the Native Hardrock: Refers generally to the locatable village of which he claims to be a member minerals. These include the metals and or whose father or mother is or has been a certain industrial nonmetallic minerals member. Such a person is qualified for en- including uranium. rollment in a Native Regional Corporation under the Alaska Native Claims Settlement Leasable: The leasable minerals are essen- Act. tially the fuel minerals (e.g., oil, gas, and coal, but excluding uranium), phosphate, Near Term: Projection through 1990; in Alas- potash, sodium salts, sulfur, which are ka, it is based on the year immediately be- disposed of through the Federal leasing fore Native Corporations become public laws. corporations. Appendix A—Glossary ● 251

Non-Federal Mineral or Mining Interests: general discretionary management author- Public and private mining interests includ- ity. Title V of the Federal Land Policy and ing private mining businesses, State groups Management Act of 1976 provides: the involved in mineral leasing or the promo- term “right-of-way” as used in the Act in- tion of mineral development, and county- cludes “an easement, lease, permit, or owned quarry operations. license to occupy, use, or traverse public lands” granted for certain purposes. (43 Ore Grade: The quantity of a specific metal or nonmetal mineral commodity in the ore, U.S.C. 1702(f).) by weight. Grade is usually expressed as Small mining business: Small mining business percent, e.g., 3 percent copper ore. The or the small miner is here defined as an in- grade of precious metal deposits is normal- dividual, partnership, or corporation, that ly stated as troy ounces of metal per ton of is engaged in prospecting or mining as a ore. full- or part-time business. If incorporated, Policies: The interpretation by different Gov- it is closely held, not advertised in a major ernment agencies of regulations imple- stock exchange, and is capitalized for menting the land management and disposal under $1 million. In Alaska, the small laws. miner employs less than 20 persons; and annually mines less than 600,000 yards of Practices: The actions of Federal officials alluvial material (clay, sand, silt, gravel, or when implementing and enforcing Federal other material deposited by running water) laws, policies, and regulations. or less than 50,000 tons of metallic hard- Regulation —An administrative rule issued by rock ore, or less than 200,000 tons of coal, a Federal agency or department imple- industrial materials, or sedimentary ma- menting or interpreting a statute or policy. terials (other than placer alluvium), which Regulations are published in the Federal require further processing. Register (F. R.) and compiled yearly in the Code of Federal Regulations (CFR). There Statute: A bill passed by Congress and signed are two types of regulation, interpretive by the President. Statutes of the United and substantive. States are published in the Statutes-at- Interpretive; Regulations that are issued to Large (Stat.) and are codified in the United advise the public of an agency’s inter- States Code (U. S.C.). pretation or construction of the statutes Surface or Transportation Access: This term and rules it administers. Interpretive refers specifically to the right to use lands regulations are not binding on those af- for the purpose of developing a transporta- fected by them and may be presented to tion system. This includes roads and rail- a court for judicial determination. roads. Substantive: Regulations other than those Barrier: An obstacle that prevents surface describing organizational, procedural, access, e.g. the loss of access to the only or practice requirements that are issued mountain pass through which a region by an agency pursuant to statutory au- can be reached. thority, and that implement a statute. Restriction: A deterrent to surface access, Such regulations have the force and ef- e.g., standards set by multiple jurisdic- fect of law. tions that require substantial legal Right-of-way: A right of to cross the land of resources, time, and costs; or a detour another. As used in this report, a right-of- around a topographic obstruction such way means the right to cross Federal lands as a mountain range. by obtaining a “right-of-way” permit. The Restraint: A limitation that makes it diffi- authority to grant this permit maybe found cult to gain surface access, e.g., a Feder- in a specific right-of-way statute or in the al permit requirement involving an indi- 252 •“ Analysis of Laws Governing Access Across Federal Lands

vidual, local, or Federal agency that Western United States/Eastern United causes delays. States: The Western United States includes Market Access: An aspect of transporta- Montana, Idaho, Wyoming, Colorado, New tion access that specifically concerns Mexico, Arizona, Utah, Nevada, Washing- the movement of minerals and their ton, Oregon, California; the Eastern United products from the mine or processing States includes the other 37 contiguous site to market. States in the United States. Appendix B Acronyms

AMRAP —Alaska Minerals Resources FHWA —Federal Highway Assessment Program Administration ANCSA —Alaska Native Claims FLPMA —Federal Land Policy and Settlement Act Management Act AQCR —Air Quality Control Region FPC —Federal Power Commission BACT —best available control FS —Forest Service technology FSLUPCA —Federal-State Land Use BAT —best available technology Planning Commission for BLM —Bureau of Land Management Alaska BOD —basic oxygen demand FWPCA —Federal Water Pollution BOM —Bureau of Mines Control Act BPT —best practicable technology FWS —Fish and Wildlife Service CEQ —Council on Environmental NAAQS —National Ambient Air Quality Quality Standards CZMA —Coastal Zone Management NEPA —National Environmental Policy Act Act DOI —Department of the Interior NOAA —National Oceanic and DOT —Department of Transportation Atmospheric Administration EIS —environmental impact NPDES —National Pollution Discharge statement Elimination System EPA —Environmental Protection OCS —Outer Continental Shelf Agency PSD —Prevention of Significant ESECA —Energy Supply and Deterioration Environmental Coordination SIP —State Implementation Plan Act of 1974 TAP —Trans-Alaska Pipeline FCC —Federal Communications TAPS —Trans-Alaska Pipeline System Commission USFS —United States Forest Service FEA —Federal Energy Agency USGS —United States Geological FERC —Federal Energy Regulatory Survey Commission

253 Appendix C Public Participation and List of Supporting Documents

The effects of Federal land management ing congressional consideration of Alaska Na- laws, policies, and practices on the use of tional Interest Lands legislation. Federal lands for development of minerals on non-Federal lands has not been studied wide- In order to complete this assessment, OTA ly. Special attention was therefore given to had to conduct basic information gathering developing the information necessary to sup- because of the dearth of published material port problem analysis and evaluation. on problems of access to non-Federal minerals. Several approaches were used to obtain the necessary information: field interviews, Non-Federal lands constitute approximate- study area analyses, and workshops. Anal- ly two-thirds of the total national land base ysis of access issues could not have been potentially available for domestic minerals accomplished without such information gath- development. Information gathering in the ering and the cooperation of nearly 600 indi- contiguous United States focused on States viduals and groups that were concerned or with large Federal landholdings, such as affected by Federal land management deci- Nevada where 87 percent of the land is feder- sions. Among the groups interviewed were ally owned. (Figure C-l.) Primary emphasis non-Federal landowners; Alaska Native Cor- was given to Western States; a sample of porations; mining interests, including mining Eastern States was included for complete- corporations, small mining businesses and ness. small miners; conservation and environmental organizations; the academic commu- Certain States were selected for intensive nity; and representatives of Federal, State, analysis. In the West, Nevada and Arizona and local governments. Professional and were analyzed. Information was also gath- technical organizations such as the Associa- ered in Colorado and Wyoming. Within the tion of State Geologists also provided in- Eastern States, North Carolina was analyzed formation. Contacts were maintained with in depth. Additional information was ob- these groups throughout the study. tained in New Jersey, Delaware, South Carolina, and Virginia. Alaska was analyzed OTA information gathering was aug- intensively because access across Federal to mented by contractor and consultant reports non-Federal land was a prominent issue dur- which assisted in the problem evaluation and

254 Appendix C—Public Participation and list of Supporting Documents ● 255

I I I I 1’ I 7 .0 I /

# 256 ● Analysis of Laws Governing Access Across Federal Lands analysis phase of the assessment. OTA staff eral Lands, Volume II, Working Papers independently verified the information ob- (OTA-M-76 ). This volume includes the follow- tained by contractors and consultants. The ing papers: following is a list of working papers prepared Assessment of Transportation Access Requirements for this assessment. for Minerals Exploration and Mine Development and Operation in Alaska, J. Whitney and D. Bryan, Minerals Accessibility to Non-Federal Lands in Assessment of Environmental Penalties Introduced Arizona, W. Dresher, T. Eyde, and J. Poole, Univ. by Transportation Access to Alaska Non-Federal of Arizona. Mineral Resources, B. Shaine. Impact of Federal Land Management and Disposal The Economic Importance of the Small Miner and Laws on Transportation Related Mineral Accessi- Small Mining Businesses in Alaska, C. Hawley and bility to Non-Federal Lands in Nevada, D. Bryan. J. Whitney. Assessment of Mineral Accessibility to Non-Federal Lands in North Carolina, Geological Resources, OTA relied heavily on field interviews in Inc. Mineral Accessibility on Non-Federal Lands—Prob- the contiguous United States during the early lem Evaluation, Harbridge House, Inc. phases of the assessment. Problems asso- The Potential Relationship Between U.S. Balance of ciated with access use of Federal lands for Payments and Alaska Minerals Development, J. exploration and development of minerals on Whitney. non-Federal lands were identified in consul- Effects on the Federal Regulatory Framework on Minerals Exploration and Mine Development on tation with representatives of various Na- Domestic Public and Private Lands, J. Whitney. tional, State, and local interest groups. OTA Mineral Exploration and Development Problems gratefully acknowledges the assistance of the Arising From Public-Private Severed Estate Prob- following individuals and groups that made lems in the United States: An Industry Perspective, technical contributions to the assessment: J. Whitney. National Access Restrictions for Key Mineral Com- modities—Analysis of Case Studies, J. Whitney. Arizona Coastal Zone Management and Access to Onshore Minerals on Non-Federal Lands—A Threshold A&S Sand and Gravel Company Assessment, B. Theberge and Scott Whitney. Allied Concrete Products, Inc. Effects of the Federal Coastal Zone Management Act AMAX Inc. of 1972 on Access to Minerals on Non-Federal American Agriculture International, Inc. Lands, Earth Satellite Corp. American Materials, Inc. Transportation Access Across Federal to Non-Feder- Anamax Mining Company al Land for Hardrock Mineral Development—Pol- Arizona Conservation Council icy Alternatives for Congressional Consideration, Arizona Mining Association Harbridge House, Inc. Arizona Rock and Sand Corporation Evaluation of Minerals Transportation Access Prob- Arizona Rock Products Association lems for Non-Federal Minerals Exploration and Arizonans for a Quality Environment Development in Alaska, J. Whitney. Bureau of Land Management, Advisory Board Survey of Minerals Transportation Availability for Bureau of Land Management, Phoenix Grazing Selected Hardrock and Energy Minerals, Pan District Technology, Inc. Bureau of Land Management, Safford Grazing The Federal Regulatory Framework: Effects on Min- District erals Exploration and Mine Development on Do- Bureau of Mines, U.S. mestic Public and Private Lands, J. Whitney. Cinder/pumice operators* Cities Service Minerals Corporation These working papers are on file at OTA. Citizens of Flagstaff* Persons wishing to review these working Coconino County Planning Dept. Columbia Sand and Gravel Company papers should contact the Materials Group, CONOCO Office of Technology Assessment, Washing- Construction Materials Inc. ton, D.C. 20510. Continental Copper Company Other working papers prepared for the assessment were published by OTA as: Anal- *Notes a desire not to be identified by name or that records of inter- ysis of Laws Governing Access Across Fed- view are unavailable. .

Appendix C—Public Participation and list of Supporting Documents ● 257

Flagstaff Chamber of Commerce Colorado Forest Service, U.S. Gee-Services of Arizona Bureau of Land Management, U.S. Hecla Mining Company Chambers of Commerce Inspiration Consolidated Citizens of Grand Junction* Kerr-McGee Corporation Colorado Counties, Inc. Mesa Sand and Rock Company Colorado National Bank Mineral Property Owners* Colorado Oil and Gas National Park Service, U.S. Consolidated Coal Company Nature Conservancy Department of Energy, U.S. Navajo Community College Eagle County Planning Commission Newmont Mining Forest Service, U.S. Occidental Minerals Corporation National Audubon Society Papago Indian Tribe, Director of Mines Environmental Consultant* Peabody Coal Company Sand and Crushed Stone Operators* Perry Exploration Company State of Colorado Phoenix Chamber of Commerce Bureau of Mines Phoenix Rock and Sand Corporation Geological Survey Pima County Assessors’ Office Ranchers* Delaware Santa Fe Pacific Land Company Barber Sand and Gravel Small Mining Interests* Contractors Sand and Gravel Southern Arizona Environmental Council Delaware Brick Co. Southwest Economic Information Center Delaware Sand and Gravel Southwest Exploration Associates New Castle County Planning and Zoning Commission St. Joe American Corporation Soil Conservation Service, Sussex County District State of Arizona State of Delaware Bureau of Geology and Mineral Technology Office of Management, Budget, and Planning Governor’s Commission on Arizona Environment Department of Natural Resources and Land Department Environmental Control Mineral Resources Department State Geological Survey State Legislature, House and Senate Natural Sussex County Planning Office Resources Committees Whittington’s Sand and Gravel Company University of Arizona, Council for Environmental Studies District of Columbia University of Arizona, Office of Arid Lands Stop Mining Around Residential Tucson Bureau of Mines, Liaison Officers for Maryland and The Superior Companies Delaware The Tanner Companies Conservation Foundation Tucson Sand and Soil Company Department of Commerce, U.S. Twitty, Seville and Mills, Attorneys-at-Law OCZM, South Atlantic Regional Manager Union Rock and Sand Company Department of the Interior, U.S. Valley Concrete and Materials Environmental Policy Center Valley National Bank Friends of the Earth Wallaby Enterprises Sierra Club Western Prospector and Miner Newspaper Wilderness Society White Mountain Apache Indian Tribe, Tribal Chairman Indiana Indiana Department of Natural Resources, Geological California Survey National Audubon Society National Wilderness Federation Iowa State of California Iowa Geological Survey Division of Mines and Geology — *Notes a desire not to be identified by name or that records of interview are unavailable. 258 ● Analysis of Laws Governing Access Across Federal Lands

Maryland Galli Exploration Hecla Mining Company Arundel Corporation Homestake Mining Campbell Sand and Gravel Company IMCO Services Charles County Sand and Gravel Inspiration Development Contee Sand and Gravel Company International Minerals and Chemicals Corporation National Sand and Gravel Association Lake Mead Recreation Area Representative* Stancill’s Inc. Las Vegas Building Materials State of Maryland Law Firm* Conservation Education Council Lawrence Livermore Laboratory Department of Natural Resources Milchem Citizens for Mining Office of Coastal Zone Management Mining Engineer* Geological Survey Naval Air Station, U.S. Nevada Association of Conservation Districts Michigan Nevada Mining Association Michigan Department of Natural Resources Newmont Exploration Pacific Coast Building Products Phillips Petroleum Minnesota Ranchers Exploration and Development Corporation Minnesota Geological Survey Sierra Club, Toiyabe Chapter Silica Miners Missouri Silver King Mines Siskon Corporation Missouri Department of Natural Resources Small Miners* South Pacific Land Company Montana State of Nevada Forest Service, U.S. Conservation and Natural Resources Division Anaconda Company Division of State Lands Superior Oil Nevada Union Carbide University of Nevada, Mackay School of Mines Air Force, U.S. Virgin Valley Opal Miners Association American Selco Washoe County Representative* Anaconda Company Washoe Jeep Squadron, Nevada Open Land Arrow Ready Mix Organized Council Basic Industries Wells Cargo, Inc. Bendix Bureau of Indian Affairs, U.S. Bureau of Land Management, U.S. New Jersey Bureau of Mines, U.S. ASARCO Bureau of Reclamation, U.S. Atlantic County Citizens Council on Environment Carlin Gold Mines Bureau of Mines, U.S. C.B. Concrete Company Citizens* Cities Service Jessie S. Morie and Son, Inc. Citizens Against Bureaucracy New Jersey Zinc Company Citizens for Mining Ralph Clayton and Sons Sand and Gravel Consulting Economic Geologist* State of New Jersey Consulting Geologist* Bureau of Geology and Topography Consulting Mining Engineer* Department of Environmental Protection Desert Protective Council Department of Transportation Duval, Inc. Implementation and Involvement Group, Office of Eagle Picher Industries CZM Environmental Representatives* Tuckahoe Sand and Gravel Company Exploration Geologists of Nevada Exploration Resources New Mexico Forest Service, U.S. Freeport Exploration New Mexico Bureau of Mines and Mineral Resources

*Notes a desire not to be identified by name or that records of interview are unavailable. Appendix C—Public Participation and list of Supporting Documents ● 259

North Carolina Pine Hall Brick and Pipe Company Powhatan Mining Company Appalachian Regional Commission Retired Persons* Army Corps of Engineers, U.S. Soil Conservation Service, U.S. Basnight Construction Company Solite Corporation Becker Sand and Gravel Company Southern Aggregates, Inc. Borden Brick and Tile Company State of North Carolina Boren Clay Products Company Coastal Resources Advisory Council Bureau of Mines, U.S. Department of Transportation Carolina Silica Corporation Economic Coastal Management Office Chambers of Commerce* Economic Coastal Resources Commission City and Town Representatives* Geologists* Clark Stone Company Highway Department Field Office Representatives* Coastal Zone Management and Planning Council Land Quality Section College of Abermarle Mines & Quarry Division, Dept. of Labor Cotton Patch Mines Natural and Economic Resources Department Cranberry Magnetite Corporation North Carolina Commission of Indian Affairs Crowell Constructors, Inc. Site Planning, Parks, and Recreation Division Cumberland Paving Company Statesville Brick Company Dare County Representatives* Stetson and Daniels, Inc. Dickerson, Inc. Texasgulf, Inc. Earl L. Saunders Excavation University of North Carolina, Minerals Research Ecologist-forester* Laboratory E. L. Wade Construction Company University of North Carolina, Zoology Department Feldspar Corporation Wake County Planning Department First Colony Farms Inc. Wake Stone Corporation Fish and Wildlife Service, U.S. Washington Chamber of Commerce Foote Mineral Company Forest Service, U.S. Oklahoma Glendon Pyrophyllite Company, Inc. Harris Mining Company Oklahoma Geological Survey Hays Corporation Hitchcock Corporation Oregon Hodges Equipment Company Oregon Department of Geology and Mineral IMC Chemical Group, Inc. Industries Jacob’s Creek Stone Company J. L. Colville Construction Company South Carolina King’s Mountain Mica Company Lawson United Feldspar & Mineral Company Addco Mining Company Lithium Corporation of America Ashe Brick Company Martin-Marietta Aggregates Coastal Zone Advisory Committee Maymead Lime Company, Inc. Coastal Zone Management Agency Melson Sand Company Conservation Interests* Nantahala Talc and Limestone Gifford-Hill and Company, Inc. National Park Service—Blue Ridge Parkway, U.S. Land Associates National Park Service—Great Smoky Mountain, U.S. Martin-Marietta Aggregates National Park Service—Outer Banks, U.S. National Oceanic and Atmospheric Administration, National Sand and Gravel Association Us. Nello L. Teer Company South Carolina Coastal Council Newsome Sand and Gravel South Carolina Heritage Trust Advisory Committee North Carolina Aggregates Association South Carolina State Development Board North Carolina Granite Corporation U.S. Peat Corporation Outer Banks Contractors, Inc. Waccamaw Clay Products Perry and Daniels Inc. W. R. Grace and Company PHB Emerald Corporation Phelps Dodge Exploration Utah Piedmont Minerals Company, Inc. Utah Geological and Mineral Survey

*Notes a desire not to be identified by name or that records of interview are unavailable. 260 ● Analysis of Laws Governing Access Across Federal Lands

Virginia Coastal Resource Management Program Commerce and Resources Department American Mining Conservation and Economic Development Baillo Sand Company, Inc. Department Bureau of Land Management, U.S. Marine Resources Commission Chickahominy Sand & Gravel Mineral Resources Division Citizens* Suffolk County Government, Office of City Manager Corps of Engineers, U.S. Virginia Institute of Marine Sciences Eastern Wildlife Refuge Representatives* William and Mary College Environmental Consulting Firms* Fish and Wildlife Service, U.S.—Great Dismal Swamp Wyoming Refuge Forest Service, U.S. Bureau of Land Management, U.S. Geological Survey, U.S. Citizens of Jackson Hole* Gunter and Son, Inc. Forest Service, U.S. J. C. Jones Sand Company Ranchers* National Park Service, U.S. State of Wyoming Old Dominion University Environmental Quality Department R. A. Crewes Sand Pit Land Commission Sand and Gravel Operators* Wyoming Conservation Commission State of Virginia Wyoming Oil and Gas Conservation Commission Attorney General Office University Associate Professor*

*Notes a desire not to be identified by name or that records of interview are unavailable.