analysis of laws governing access across federal lands

Analysis of Laws Governing Access AcrossFederal Lands: Options for Access in

Alaska

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 OfficeWashington, 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 ac-cess through Federal lands to non-Federal mineral-bearing lands. Thereport analyzes the laws governing Federal land management systems,the laws specifically applicable to Alaskan lands, and the major environ-mental and land-planning laws that affect access across Federal landmanagement systems.

Prior to Alaska statehood, the Federal Government owned over 99percent of the land in the State. The Alaska Statehood Act and the AlaskaNative Claims Settlement Act provide for conveyance of about 40 percentof the land to the State and to Native Regional and Village Corporations.Congressional intent, expressed at the time of passage of these Acts, wasto provide land and resources, including minerals, to create an economicbase for these non-Federal parties.

Following conveyance of State and Native lands, 60 percent ofAlaska will remain in Federal ownership. These Federal lands will bemanaged by a number of different agencies under provisions of severallaws. Access is a legal right to use certain lands for a specific purposeand access across Federal to State, Native, and privately held lands is aprominent issue for several reasons. Among these are the extent andnature of the Federal landholdings and the limited surface transportationnetwork. Compared to the contiguous United States, only a small portionof Alaska is served by road or rail; and access for resource developmentis closely related to the improvement and expansion of these systems.Whether or not access across Federal lands for non-Federal mineraldevelopment is an appropriate use of these lands is one element in the in-tense public debate about the future management of the Federal lands.

This report is particularly relevant to the current congressionaldeliberations about Alaska National Interest Lands legislation. The 96thCongress has before it bills calling for the classification of portions of theremaining Federal lands in the State as national parks, wildlife refuges,national forests, wilderness areas, and wild and scenic rivers. Initiatedunder 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 courseof mineral resource development on both Federal and non-Federal lands.The decision of whether or not to allow Federal lands in Alaska to be usedfor access requires consideration of many values. These values include

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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 congres-sional consideration. They constitute a range of approaches to accesspolicy for Federal lands in Alaska. The options were structured to high-light these alternative approaches so that the advantages and disad-vantages of each choice would become more apparent. No single optionwill meet the requirements of all interest groups, but a combination ofseveral could provide a comprehensive approach to access policy.

Congress’ final decision about the availability of access throughFederal lands in Alaska for mineral developments on non-Federal landswill have long-range implications for the economy of the State and forconservation of the national interest lands, This report provides informa-tion to assist Congress in resolving this important issue.

RUSSELL W. PETERSONDirector

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OTA Materials Group

Albert E. Paladino, Group ManagerFrank J. Wobber, Project DirectorKaren L. Larsen, Technical StaffWilliam E. Davis, Technical Staff

Administrative StaffMary J. Adams Mona M. Chick Carol A. Drohan

Jackie S. Robinson Joyce E. Robinson

OTA Publishing StaffJohn C. Holmes, Publishing Officer

Kathie S. Boss Joanne Heming

Materials Group Advisory Committee

James Boyd, ChairmanMaterials Associates

Earl H. BeistlineUniversity of Alaska

Seymour L. BlumThe MITRE Corporation

Lynton K. CaldwellIndiana University

Robert L. CobleMassachusetts Institute of Technology

Lloyd M. CookeUnion Carbide Corporation

Frank FernbachUnited Steel Workers of America (Ret.)

James H. GaryColorado School of Mines

Edwin A. GeeInternational Paper Company

Bruce HannonUniversity of Illinois

Julius HarwoodFord Motor Company

Elburt F. OsbornCarnegie Institution of Washington

Richard B. PriestSears, Roebuck and Company

N. E. PromiselNational Materials Advisory Board

Lois SharpeLeague of Women Voters

Raymond L. SmithMichigan Technological University

Simon D. StraussASARCO, Inc.

George A. WatsonFerroalloys Association

Franklin P. HuddleCongressional Research Service

Advisory Panel for Assessment ofAccess to Minerals on Non-Federal Lands

Earl H. Beistline, ChairmanDean, School of Mineral Industry, University of Alaska

Roger Allington, Land and Engineering Officer John Katz, Chief CounselSealaska Corporation Federal-State Land Use Planning

Commission, AlaskaJames Boyd, President

Materials Associates Elburt Osborn, Distinguished ProfessorCarnegie Institution of Washington

Charles Clusen, Associate DirectorSierra Club

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Alaska Working Groups

OTA wishes to acknowledge the contribution of the two Alaska work-ing groups that were convened to discuss the needs for access acrossFederal lands for mineral development on non-Federal lands and the en-vironmental and social impacts of access.

Mineral Resources WorkshopUniversity of Alaska, August 20-21,1977

Convened and chaired by Russell BabcockBear Creek Mining Company, Spokane Washington

E. O. BrackenAlaska Department of Commerce and

Economic DevelopmentDivision of Economic EnterpriseJuneau, Alaska

Ed FieldsBear Creek Mining CompanySpokane, Washington

C. C. HawleyC. C. Hawley& Associates, Inc.Anchorage, Alaska

Ross G. SchaffAlaska State Geologist,Department of Natural ResourcesDivision of Geological and Geophysical

SurveysAnchorage, Alaska

John W. WhitneyMineral EconomistReno, Nevada

Hugh MathisonPlacer Development Corp. Dave WilliamsVancouver, Canada Doyon, Ltd.

Jack F. McQuat Fairbanks, AlaskaWGM, Inc.Anchorage, Alaska

Edwin M. Rhoads Frank WobberMineral Industry Research Laboratory Congress of the United StatesUniversity of Alaska Office of Technology AssessmentFairbanks, Alaska Washington, D.C.

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Environmental Resources WorkshopUniversity of Alaska, October 18-20,1977

Convened by Celia Hunter, The Wilderness SocietyChaired by Robert B. Weeden, University of Alaska, Fairbanks, Alaska

Robert Belous David W. NortonNational Park Service University of AlaskaAnchorage, Alaska Fairbanks, Alaska

Dave ClineNational Audubon SocietyJuneau, Alaska

Wyatt G. Gilbert Ben Shaine

University of Alaska Alaska Coalition

Fairbanks, Alaska Anchorage, Alaska

George MatzFairbanks Environmental CenterFairbanks, Alaska Frank Wobber

T. Snell Newman Congress of the United StatesNational Park Service Office of Technology AssessmentAnchorage, Alaska Washington, D.C.

Acknowledgments

This report was prepared by the Office of Technology AssessmentMaterials Group. The staff wishes to acknowledge the following individ-uals and organizations who contributed to the assessment.

Congressional Research ServiceDr. Allen Agnew, Senior Specialist in Environmental Policy

(Mining and Mineral Resources)

ConsultantsDennis Bryan Renee G. Ford David Masselli

W. E. Dresher B. Theberge S. Whitney

ContractorsJohn 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.

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Alaska Groups

A large number of individuals and organizations in Alaska providedinformation for the assessment and reviewed draft documents circulatedby OTA. While the contributions of these various groups are acknowl-edged, OTA assumes full responsibility for the content of this assessmentreport. A list of groups from the contiguous United States that contributedto the problem evaluation phase of the assessment is provided in appen-dix C.

Alaska Federation of Natives,Inc.

Alaska Miners Association, Inc.Alaska Native FoundationAlaska Native Land Manager’s

AssociationBear Creek Mining CompanyBering Straits Native Corpora-

tionBristol Bay Native CorporationCitizens for Management of

Alaska LandsDoyon, LimitedFairbanks Industrial Develop-

ment CorporationFederal-State Land Use Planning

Commission for AlaskaGreat Lands ExplorationGreater Fairbanks Chamber of

CommerceHawley & AssociatesPlacer Mining, Inc.Resource Associates, Inc.Sealaska CorporationStandard Oil of CaliforniaUsibelli Coal Co.

WGM, Inc.Wilderness Society

State of Alaska

Department of Commerce andEconomic Development

Division of Economic EnterpriseDivision of Energy and Power

DevelopmentDepartment of Environmental

ConservationDepartment of Fish and GameDepartment of Natural

ResourcesDivision of Geological and

Geophysical SurveysDepartment of Transportation

and Public FacilitiesLegislative Affairs Agency

Division of ResearchOffice of the Governor

Division of Policy Developmentand Planning

Office of Pipeline Surveillance

University of AlaskaCollege of Mineral IndustryMineral Industry Research

LaboratoryCooperative Extension ServiceGeophysical InstituteInstitute of Social and

Economic Research

United States Government

Federal Power CommissionAlaska Power Administration

Department of AgricultureForest Service

Department of the ArmyCorps of Engineers

Department of the InteriorBureau of Land ManagementBureau of MinesFish and Wildlife ServiceGeological SurveyNational Park Service

Department of TransportationAlaska Railroad Administra-

tion

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Contents

Chapter

1. Summary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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

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

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

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

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

8. Concluding Remarks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Appendix A—Glossary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Appendix B—Acronyms. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Appendix C—Public Participation and List of SupportingDocuments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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1Executive Summary

Photo Credft. OTA Staff

The Alaska Railroad and the highway connecting Fairbanks andAnchorage, Alaska, looking south from near Nenana, Alaska

Chapter 1.-EXECUTIVE SUMMARY

Page465677

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1Executive Summary

Rarely has the conflict between resourcedevelopment and protection of the natural en-vironment been more severe than in Alaska.The largest State is a treasury of naturalbeauty, wildlife, and wilderness on a scalethat does not exist in the rest of the Nation. Atthe same time, it has an abundance of naturalresources that may be needed in the future.For decades, distance, climate, and lack ofdevelopment combined to enforce de factopreservation of Alaska’s natural treasures.The barriers that have protected Alaska’s en-vironment have been lowered by technology,by local development, and by an increased de-mand for resources.

At one time nearly all of Alaska’s 375 mil-lion acres were vacant and unappropriatedFederal lands. Little attention was given toestablishing management policies to governland use. With the exception of Alaska Na-tives, few used these vast lands and re-sources. 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 reason-able prospect for natural resource develop-ment throughout the State, and plans are be-ing made for many such projects. Economicdevelopment has been accompanied by a ma-jor restructuring of landownership and landmanagement policy in Alaska that began in1959 with the admission of Alaska as a Stateand may well continue into the 1990's. Eachstep of this process of change has beendogged with controversy. Often the debate

has turned on the resolution of the conflictbetween the use of land for its economic re-sources and the preservation and protectionof land for its natural values.

The most recent development in this proc-ess of change has grown out of legislative ac-tions taken in 1971 to resolve an earlier con-troversy— the assertion of claims to almostall of Alaska by native Indians, Eskimos, and

Photo Credit OTA Staff

Inactive gold dredge near Fairbanks, Alaska. Placer miningfor gold is underway in some areas of Alaska and interest in

hardrock mining is growing

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4 ● Analysis of Laws Governing Access Across Federal Lands

Aleuts. The Alaska Native Claims SettlementAct (ANCSA) extinguished all aboriginal landclaims and, in compensation, gave AlaskanNatives $962.5 million and the right to select44 million acres of Federal lands in the State.Conflicts over the Native land claims hadslowed State land selections under the Alas-

ALASKA NATIONAL

ANCSA also addressed the management ofFederal lands in the State. A key provision,section 17(d)(2), directed the Secretary of theInterior to withdraw up to 80 million acres ofland that he deemed suitable for potential in-clusion in the National Park, Forest, WildlifeRefuge, and Wild and Scenic Rivers Systems.The Secretary was to study these lands andmake recommendations to Congress. To pro-tect the national interest in these lands, com-monly called “d-2” lands, prior to congres-sional action, they were withdrawn from allforms of appropriation under the public landlaws, the mining and mineral leasing laws,and from selection by the State or Nativeregional corporations. Statutory authority forthese withdrawals expired on December 18,1978.

Many proposals for Alaska National In-terest Lands have been introduced in Con-gress since passage of ANCSA. During the95th Congress, extensive hearings were heldon Alaska Lands legislation before House andSenate committees. In May 1978, the Housepassed H.R. 39, which would have set asideover 100 million acres of Federal lands as na-tional parks, forests, wildlife refuges, wildand scenic rivers, and wilderness areas. InOctober 1978, the Senate adjourned withoutacting on the Alaska Lands Bill.

Prior to the expiration of the “d-2” with-drawals, a series of executive actions dra-matically altered the Federal land manage-ment pattern in Alaska. On November 16,1978, the Secretary of the Interior used hisemergency authority under section 204(e) ofthe Federal Land Policy and Management Actto withdraw all public lands in Alaska

ka Statehood Act and threatened to impedeconstruction of the Trans-Alaska Oil Pipeline.ANCSA removed a major obstacle to the pipe-line and paved the way for conveyances tothe State and to Native groups that will shiftapproximately 40 percentnon-Federal ownership.

INTEREST LANDS

of Alaska’s land to

covered by congressional or administration“d-2” proposals from mineral entry or selec-tion by the State of Alaska. This emergencywithdrawal of some 110 million acres is effec-tive for 3 years.

On December 1, 1978, President Carter in-voked the Antiquities Act of 1906 to create 17new national monuments in Alaska. Thesemonuments, totaling some 56 million acres,include 13 new national parks, 2 new na-tional wildlife refuges, and 2 national forestareas previously proposed for wildernessdesignation. National monuments are closedto all disposition under the public land lawsincluding the mining and mineral leasinglaws. National monument status can be mod-ified or revoked only by congressional action.

On December 1, the President also an-nounced that the Secretary of the Interiorwould initiate further action under section204(c) of the Federal Land Policy and Man-agement Act to protect approximately 40 mil-lion acres of proposed wildlife refuges under20-year withdrawals. Section 204(j) of theAct provides that the Secretary of the Interi-or may not modify or revoke any withdrawalmade under the Act that adds lands to the Na-tional Wildlife Refuge System. An additional11.2 million acres of proposed wildernessareas in the Tongass and Chugach NationalForests would be protected under a 2-yearwithdrawal from location under the mininglaws and from State selection. Applicationfor this withdrawal to protect natural valuesand in aid of legislation was submitted to theDepartment of the Interior by the Secretaryof Agriculture on November 28, 1978. In an-nouncing these withdrawals, the President

Ch. 1 Executive Summary ● 5

declared his intention to seek legislation per-manently setting aside these areas and an ad-ditional 10 million acres included in theNovember emergency withdrawals.

The outcome of congressional decisions onAlaska lands could have a particularly strongimpact on the future course of mineral re-source development in Alaska. Although Fed-eral lands have most often played a majorrole in mineral resource development be-cause they contain rich mineral deposits, theyare also important as routes for access toareas of mineral potential, both on and off theFederal lands.

The conditions under which a given area ofFederal land may be used for access are de-termined to a large extent by the land classifi-cation system into which the land has beenplaced. Each system—parks, forests, wildliferefuges, wild and scenic rivers, wilderness,and public lands—has its own rules. In theWest and in Alaska, where much of the landis in Federal ownership, the use of Federallands for access is an important element ofland management policy. For understandablereasons, the mineral industry favors policiesthat encourage such use, while environmen-tal and conservation interests oppose them.

OTA ASSESSMENT

At the request of the Technology Assess-ment Board, OTA conducted an assessmentof how Federal laws, policies, and practicesrelated to the use of Federal lands for accesspurposes influence hardrock mining on non-Federal lands. The focus of the assessment ison access for non-Federal mineral resourcedevelopment, that is, the ability to reach min-eral-bearing lands and to remove the mate-rials produced.

The assessment was national in scope andspecifically examined Alaska and several

ACCESS ACROSS

Access is the ability to reach certain lands.It includes the right to use lands for privaterights-of-way and for transportation systems.Permission to cross Federal lands is generallyobtained through a special use permit, aright-of-way, or an easement granted underthe authority of the agency managing theland. This report is concerned with two typesof access needs associated with hardrockmineral development:

Western States with a high percentage ofFederal land and an active mining industry.OTA selected study areas in Eastern andWestern States as well as in Alaska. Becauseof the timeliness and relevance of the materi-als assembled during the assessment to cur-rent congressional consideration of AlaskaNational Interest Lands legislation, assess-ment results were made available for the useof Members of Congress, their legislativestaffs, and various committees as the studyprogressed.

FEDERAL LANDS

—Private rights-of-way across Federallands to reach non-Federal lands or toreach existing transportation systems;and

—Rights-of-way across Federal lands fortransportation systems (roads, high-ways, railways, ports) to serve publicneeds in general and mineral transpor-tation in particular.

-. .—


SERIOUSNESS OF ACCESS PROBLEMS IN ALASKA

An independent OTA analysis of fiveAlaskan study areas gives a perspective ofthe seriousness of the problems associatedwith access across Federal lands in Alaska.For each study area, OTA evaluated the needto use Federal lands for access to non-Fed-eral lands. The evaluation was based on cur-rent information about State and Native landselections, transportation availability, andlocation of mineral deposits. As the final con-veyances of State and Native selections pro-ceed, non-Federal landownership patterns onwhich the evaluation was made could bealtered. Information concerning the locationof mineral deposits is also increasing. Thus,OTA’s evaluation could be subject to somemodification in response to shifts in landown-ership or mineral development activity. Gen-erally, however, OTA found that:

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The need for rights-of-way across Fed-eral lands to reach non-Federal mineralsis a localized problem that is likely to oc-cur in scattered instances. The need forrights-of-way across Federal lands toreach existing surface transportation isalso likely to occur infrequently,

In some regions of Alaska, mineralresource development will require theimprovement of existing transportationin order to move the bulk mineral prod-ucts to market. In those regions servedby existing surface transportation, non-Federal lands are largely contiguous,and a minimal need exists for rights-of-way across Federal lands for transpor-tation routes to serve non-Federal miner-al areas.

In regions that are not served by existingsurface transportation systems and thatare isolated from the rest of the Stateand each other by Federal lands, newtransportation systems will have to be

constructed to transport hardrock min-erals. In these areas, the development ofsurface transportation systems to ac-commodate mineral resource productionor for other public purposes will involvelong distances and rights-of-way overFederal, State, and Native lands. Theneed to cross Federal lands in someremote areas of Alaska is likely to ariseregardless of whether a statewide orregional transportation system ap-proach is adopted.

The surface transportation network inAlaska is not extensive compared with that inother States. The primary means of transpor-tation between most areas of the State is byairplane. The existing combination of air andsurface transportation is adequate to movepeople and goods for most present needs. It istechnically and economically feasible to shipprecious metals by air, but most other hard-rock minerals require transportation systemsthat can move large volumes of bulky materi-al over long distances at a relatively low cost.

The planning and development of surfacetransportation systems is normally a Statefunction. There is, at present, no consensuson the appropriate transportation system orcombination of systems to serve Alaska’scommunity development and resource needs.Various interests have advanced argumentsfor building new surface transportationroutes or improving existing routes at publicexpense, for extensions to the system fi-nanced by potential resource developers, andfor little additional development, This assess-ment does not consider the relative merits ofany of these positions, nor does it weigh thecosts and benefits of alternative transporta-tion strategies. Rather, it addresses howFederal policies on the use of Federal landsfor access, including use for the developmentof transportation systems, affect hardrockmineral development on non-Federal land.

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After conveyance of State and Native landselections, 60 percent of Alaska’s lands willremain in Federal ownership. Because of thevast Federal areas involved, the patchworkdistribution of non-Federal lands, and thelimited extent of existing surface transporta-

tion, access across Federal lands may be re-quired to reach non-Federal lands. The ac-cess policies of Federal land managementagencies could exert substantial influenceover the development of resources in isolatednon-Federal areas.

FEDERAL LAWS

Because Federal land management policiesare likely to exert a strong influence over ac-cess across Federal lands in Alaska, thisreport reviews those Federal laws affectingaccess to minerals on non-Federal lands. Thelaws are divided into three categories:

1.

2.

3.

Federal Land Management Laws—Laws and regulations providing for ac-cess across units of the six Federal landmanagement systems: public lands, Na-tional Park System, National WildlifeRefuge System, National Forest System,National Wild and Scenic Rivers System,and National Wilderness PreservationSystem.

Federal Laws Relating to Alaska Landsand Mineral Resources-The AlaskaStatehood Act, the Alaska Native ClaimsSettlement Act, the Trans-Alaska Pipe-line Authorization Act, the AlaskaNatural Gas Transportation Act of 1976,and the Naval Petroleum Reserves Pro-duction Act of 1976.

Federal Land Planning and Environmen-tal Laws—These laws can affect theavailability of access through variousprocedural and substantive require-ments. The report analyzes the impacton access of the National EnvironmentalPolicy Act of 1969, section 4(f) of the De-partment of Transportation Act, the En-dangered Species Act, the Clean Air Act,the Clean Water Act, and the CoastalZone Management Act.

FEDERAL LANDMANAGEMENT LAWS

Each Federal land management system hasits own rules governing access for mineraldevelopment on non-Federal lands. Two fac-tors determine the terms and conditionsplaced on access use of Federal lands: (1) theclassification of the affected land, and (2) theproposed use for which access is needed.Land managers for every system, includingthe Wilderness System, have statutory au-thority to grant some rights-of-way. The avail-ability of such grants and the nature of anyconditions imposed reflect the general pur-poses for which the affected unit is managed.

Public Lands

The Bureau of Land Management (BLM)administers the public lands under laws thatrequire application of multiple use principles.The Secretary of the Interior has ample au-thority under the comprehensive provisionsof Title V of the Federal Land Policy andManagement Act of 1976 (FLPMA) to issuerights-of-way across the public lands, exceptdesignated wilderness areas, for access tonon-Federal lands, for roads, highways, rail-roads, and other transportation systems andfacilities, and for other purposes. Section 603of FLPMA requires that the BLM inventoryfor wilderness values all roadless areas of5,000 acres or more and all roadless islandsin the public lands. Potential wildernessareas are placed in a wilderness study clas-sification and must be managed to protect

—.


wilderness values until completion of admin-istrative review and congressional action.The requirement for protective managementlimits the Secretary’s discretion to approveany use of wilderness study areas, includingrights-of-way, that might conflict with or im-pair wilderness values.

National Park System

The National Park Service manages unitsof the park system to conserve scenic andnatural values and preserve them for the en-joyment of future generations. There is nostatutory provision expressly authorizingrights-of-way across lands in the NationalPark System for access to non-Federal landsor for transportation systems. The approvalof rights-of-way and other access uses of na-tional park lands is a matter left to themanagement discretion of the Secretary ofthe Interior and the local park superintend-ent. Access use of park lands must be in con-formance with the purposes of the park sys-tem and of the individual unit to be crossed.

National Wildlife Refuge System

The Fish and Wildlife Service manages thewildlife refuge system as part of a nationalprogram of wildlife conservation and rehabil-itation. Rights-of-way across lands in the Na-tional Wildlife Refuge System may be allowedif the proposed use is compatible with thepurposes of the refuge, and the applicantagrees to pay the fair market value for suchuse.

National Forest System

The Forest Service manages the nationalforests on a multiple-use sustained-yieldbasis. The Secretary of Agriculture has am-ple authority to grant rights-of-way acrossnational forest lands, except designated wil-derness areas, under the comprehensive pro-visions of Title V of the Federal Land Policyand Management Act of 1976. Rights-of-wayfor roads and trails may also be grantedunder provisions that authorize the develop-ment of the National Forest TransportationSystem.

National Wild and Scenic Rivers System

Wild and scenic rivers are managed by theFederal or State agency that had managerialresponsibility for these areas prior to theirdesignation. These rivers are managed topreserve and protect them in a free-flowingcondition for present and future generations.Rights-of-way across units of the NationalWild and Scenic Rivers System administeredby the Department of the Interior are grantedunder laws applicable to the National ParkSystem regardless of the managing agency.Rights-of-way over units managed by the De-partment of Agriculture are governed bylaws applicable to the National Forest Sys-tem. Any conditions placed on the issuance ofany such right-of-way must be related to thepurposes of the Wild and Scenic Rivers Act. -

National Wilderness Preservation System

Units of the wilderness system are ad-ministered by the Federal agency that hadmanagerial responsibility for these areasprior to their designation. Wilderness areasare managed under protective rules to con-serve their wilderness character. The Wil-derness Act of 1964 forbids any temporary orpermanent roads or the use of mechanizedmodes of transportation in designated wil-derness areas— except as specifically pro-vided by Congress. The use of lands in the Na-tional Wilderness Preservation System foraccess purposes is limited to the specific ex-ceptions recognized in the Wilderness Act.These include: existing private rights; man-agement and emergency purposes; access toprivate or State lands completely surroundedby a national forest or public lands wilder-ness area; use of airplanes and motorboats inareas where such use predates wildernessdesignation; ingress and egress to valid min-ing claims and other valid occupancies whollywithin a national forest or public lands wil-derness area; facilities authorized by thePresident in the national interest within a na-tional forest or public lands wilderness area;and other exceptions specifically approvedby Congress. The exceptions applicable to na-tional forest and public lands wilderness


areas do not apply to park or refuge wilder-ness areas. The exceptions for completelysurrounded non-Federal lands or other landswholly within a wilderness area may not pro-vide adequate assurance of access to someisolated but nonsurrounded non-Federalareas in Alaska. Construction of surfacetransportation systems through wildernessareas requires specific congressional ap-proval.

Access Across Federal Lands in Alaska

Congressional designation of Alaska Na-tional Interest Lands will reduce many of theuncertainties about the potential use for ac-cess of Federal lands in Alaska. It is impossi-ble to predict what response a land manage-ment agency will make to a given request for

Photo Cred/t: Boyd Norton ICI, courtesy of Alaska Coalition

Mount Drum in the Wrangell-St. Elias area exemplifiesAlaska’s spectacular scenery

access. However, when land classificationsare established, reasonable assumptions con-cerning the availability or nonavailability ofFederal lands for access uses will be possi-ble.

Given existing laws and policies, accessshould be available across most units of thepublic lands and the forest system, exceptdesignated wilderness areas and wildernessstudy areas. Access across units of the Na-tional Wildlife Refuge System is allowed if itdoes not pose a threat to protected wildlife.Because of the high degree of protective man-agement afforded parks, wild and scenicrivers, and wilderness areas, use of theselands for access to non-Federal areas or fortransportation routes is strictly limited. Onpark and refuge wilderness areas, an act ofCongress would be required to allow any sig-nificant access.

In all systems, but particularly the moreprotected, the availability of access may wellturn on the factual issue of whether alter-native routes or means of access exist. Eachsystem makes some provision for special con-sideration of requests from non-Federal land-owners whose property is wholly surroundedby Federal lands. The question of alternativeroutes is also critical in considering the ex-tension of any federally funded public trans-portation network across lands used forparks or wildlife refuges. Such projects maybe approved only if there is no feasible alter-native.

Enactment of d-2 legislation will not end allthe uncertainties about which land manage-ment policies will be applied to Federal lands.As a result of the BLM wilderness review, ad-ditional Federal lands could be placed underwilderness protection in the future. This pos-sibility creates some uncertainty about the fu-ture availability of access across the publiclands. BLM wilderness areas are to be man-aged according to provisions of the Wilder-ness Act that are applicable to the nationalforest wilderness areas. The BLM will givepriority to review of wilderness potential ofpublic land roadless areas in the lower 48


States. Wilderness inventory of Alaska publiclands will be deferred until after congres-sional action on d-2 proposals and convey-ance of Native selections. This delay will pro-vide an opportunity for non-Federal land-ownership patterns and access needs toemerge.

FEDERAL LAWS RELATING TOALASKA’S LANDS AND MINERAL

RESOURCES

The Alaska Statehood Act and the AlaskaNative Claims Settlement Act provide for thetransfer of approximately 40 percent of Alas-ka’s land to non-Federal ownership. The de-velopment of land-based resources, includingminerals, was a major intent behind thesegrants of Federal lands to the State andAlaska Natives.

The Alaska Statehood Act endowed thenew State with grants of Federal lands andrevenues. These grants were intended to pro-vide a stable economic base for the State.Alaska rece ived the r ight to se lec t103,350,000 acres of Federal lands, plus over1 million acres of territorial grants of univer-sity, mental health, and school lands thatwere confirmed by the Statehood Act, andfrom 35 million to 40 million acres of sub-merged lands. All statehood land grants mustbe selected by January 3, 1984, from Federallands that are vacant, unappropriated and,except for certain national forest lands, unre-served at the time of their selection.

The State also received a share of Federalrevenues derived from natural resourceswithin the State. Alaska is entitled to 52%percent of the annual net profits of Federalmineral leases in Alaska in lieu of State par-ticipation in the reclamation fund. (This grantis in addition to the 37%-percent revenue en-titlement previously granted to the territory,thus bringing Alaska’s share of Federal min-eral leasing revenues to 90 percent.) TheStatehood Act also gives the State the right toreceive 90 percent of the net proceeds fromFederal coal lands in Alaska.

The Alaska Native Claims Settlement Act(ANCSA) extinguished all Native claims tolands and hunting and fishing rights based onaboriginal title or use. In exchange, AlaskaNatives were given the right to select some 44million acres of Federal lands and to share inan Alaska Native Fund of $962.5 million.Thirteen profit-making Native Regional Cor-porations were established to administerland selections and fund distributions. NativeVillage Corporations were also established toadminister local village selections. The min-eral or subsurface rights to all Native selec-tions are vested in the Regional Corporations.Village Corporations receive surface titleonly, The Alaska Native Fund is dependent, inpart, on contributions of $500 million fromFederal and State mineral leasing revenues.

ANCSA also established the Federal-StateLand Use Planning Commission for Alaska.The Commission was to identify necessarypublic easements across Native lands. TheSecretary of the Interior was authorized toreserve specific easements across Nativelands. No provision was made for easementsacross Federal lands to assure access tolands conveyed to Alaska Natives. Secre-tarial orders reserving extensive easementsacross Native lands have been the subject ofcomplex litigation delaying Native land con-veyances.

Three other laws relating to the role ofFederal land management in the developmentof natural resources in Alaska were also re-viewed. The Trans-Alaska Pipeline Authori-zation Act authorized an expedited proce-dure for granting a right-of-way for the Trans-Alaska Oil Pipeline. Judicial and ad-ministrative reviews of licensing and environ-mental proceedings were limited. The Actalso authorized a reservation for additionalrights-of-way for compatible uses on or adja-cent to the pipeline right-of-way.

The Alaska Natural Gas TransportationAct of 1976 provided an expedited procedurefor the consideration of several pending pro-posals to construct a natural gas pipelinefrom the North Slope to the lower 48 States.


This expedited procedure provided for coor-dinated review of right-of-way applicationscovering several different management sys-tems. Final approval of the Presidential rec-ommendation for a natural gas pipeline wasprovided by a congressional joint resolution.

The Naval Petroleum Reserve ProductionAct of 1976 transferred jurisdiction over andmanagement of the Naval Petroleum Reservein Alaska to the Department of the Interior.No provision is made for granting any right-of-way over the Reserve for access to non-Federal lands. The Secretary of the Interiormust submit a report on the nonpetroleumvalues of the Reserve within 3 years.

FEDERAL LAND PLANNING ANDENVIRONMENTAL LAWS

Federal land planning and environmentallaws can also influence the availability of ac-cess to non-Federal mineral areas. Some ofthese laws impose procedural requirementsor substantive restraints on the actions ofFederal land managers in reviewing and issu-ing rights-of-way and access permits. Otherlaws set environmental standards for trans-portation and mining activities on both Fed-eral and non-Federal lands. Compliance withthese standards is often made an expresscondition of rights-of-way across Federalareas.

The National Environmental Policy Act of1969 (NEPA) requires that an environmentalimpact statement (EIS) be prepared for majorFederal actions that significantly affect thequality of the human environment. NEPA im-poses no specific environmental standards ordirect restraints on access to minerals onnon-Federal lands. It does, however, exertsubstantial indirect influence, since Federalland management agencies must comply withNEPA in their review of requests for rights-of-way across Federal lands. EIS preparationand review may lengthen the time requiredfor approval of some rights-of-way and otherpermits. Applicants may be required to paythe costs of EIS preparation.

Section 4(f) of the Department of Trans-portation Act of 1966 bars the expenditure ofFederal funds for the construction of trans-portation projects that require the use oflands from any public park, recreation area,wildlife refuge, or historic site of National,State, or local significance, unless there is nofeasible and prudent alternative to such useand the project includes all possible planningto minimize harm to the protected lands. TheSecretary of Transportation must conduct anindependent review of possible alternativesbefore approving any federally aided trans-portation project using protected lands.

The Endangered Species Act of 1973 re-quires that all Federal agencies consider thepotential impact a proposed action may haveon an endangered or threatened species or acritical habitat. Agencies must consult withthe Secretary of the Interior on means toeliminate or minimize any risk to a protectedspecies or habitat. In areas that are home tounique and endangered species, compliancewith the Endangered Species Act could im-pose additional constraints on Federal landmanagement agencies in issuance of rights-of-way across Federal areas.

The Clean Air Act and the Clean WaterAct set national standards for air and waterquality. Primary responsibility for enforce-ment of these standards is vested in theStates. Compliance with State and Federalair and water quality standards is an expresscondition of Federal land management sys-tem right-of-way permits. Noncompliancecould lead to revocation of the right-of-way.

The Clean Air Act Amendments of 1977imposed strict controls on increases in thelevels of certain pollutants in areas where theair quality is better than the national ambientair quality standards. These amendmentsdivide existing clean air regions into threeclasses according to allowable annual incre-ments in air pollution: Class I areas whereminimal additional pollution is allowed; ClassII areas where moderate amounts of new pol-lution are allowed; and Class 111 areas wherepollution levels can increase to the national


standards. Some existing national park andwilderness areas, including one park andthree refuge wilderness areas in Alaska,were statutorily designated as Class I areas.No d-2 lands are in this category. Certainother existing large national parks, monu-ments, and refuges are Class II areas andcannot be redesignated to Class III. There aretwo such areas in Alaska. The only new con-servation units that cannot be redesignatedto Class III status are new national parks andwilderness areas that are over 10,000 acresin size. The authority to redesignate theclassification of clean air areas, with the ex-ceptions noted above, is vested in Stategovernments. Federal land managers haveonly an advisory role in the redesignationprocess.

The Coastal Zone Management Act(CZMA) provides participating States withFederal grants to develop and administercomprehensive land management programsfor their coastal zones. In addition, by requir-ing that Federal activities in the coastal zonemust “be consistent to the maximum extentpossible,” with the State plan, it offers Statesan opportunity to influence activities on Fed-eral lands. Federal land management agen-cies are subject to the consistency require-ments of the CZMA. Applications for rights-of-way or other uses of Federal lands in oraffecting coastal zone areas must be consist-ent with any approved State managementprogram. The effect of CZMA in Alaska isunclear, because planning is incomplete.

OPTIONS FOR CONGRESSIONAL CONSIDERATION

An array of options for congressional con-sideration was developed in response to theassessment request to consider possible mod-ifications of Federal access policies (table 1).These legislative policy options present arange of approaches to the policy questions ofwhether and for what purposes accessshould be permitted across Federal lands inAlaska. The options deal only with Alaskalands.

The choice of an access policy for Alaska’sd-2 lands involves the balancing of many com-peting interests and values, not only accessfor the development of hardrock mineral re-sources on non-Federal lands. No single op-tion was designed to meet the needs of all in-terest groups. Accordingly, a combination ofseveral options may provide a more com-prehensive approach to the access needs ofnon-Federal landowners to cross Federalareas to reach their lands and the potentialneed to construct major transportation sys-tems across Federal areas to serve economicdevelopment or community needs.

The five options are:

OPTION l–THE APPLICATION OFEXISTING ACCESS POLICIES TO

ALASKA ADDITIONS TO NATIONALCONSERVATION SYSTEMS–THE

STATUS QUO

Under this option, the availability of accessover Federal lands would vary depending onthe land management system and the geo-graphic area involved. Access policies forAlaska conservation units and public landswould be the same as those found in othersections of the Nation, and the protections af-forded Alaska lands would be consistent withthe levels provided elsewhere. Any shortcom-ings or uncertainties in existing laws wouldremain. Mineral activities requiring accessthrough parks and wilderness areas could bediscouraged in areas where alternative ac-cess was not available. Some landownersmight not have adequate assurance of accessand of the terms and conditions under whichrights-of-way may be granted.

Table 1. —Summary of Selected Congressional Action Options*Option 3A & B—Limited Provisions for—r

Alaskan Ac

A. Alaska LandsRight-of-Way

Special right.of-wayprovision for Alaskanlands for accessthrough Federal landsto surrounded, adja-cent, or otherwiseIsolated non-Federallands or Interests inland

cess NeedsB. Boundary Shift andLand Exchanges To

Exclude AccessRoutes

Option 5Restriction of AccessAcross National Con-

servation SystemLands

Option 2Defer Access

Decision

Option 4A, B,& CAlaskan Trans-

portation SystemAccess Provisions

Option 1Adopt ExistingAccess Policies

ACCESSPOLICYDECISION

Access use of Federald-2 lands restrictedbeyond existingstatutory Iimitations.Existing private rightsaccess to surroundedlands, and existingrights-of-way would berecognized

Access through ap-plication of existinglaws

Specific deferral of ac-cess questions involv-ing d-2 designationsand remaining Federallands in Alaska until acertain date, or someevent in future, or indefinitely

Local realinementof boundaries ofconservation sys-terns designationsto exclude accessroutes Land ex-changes to provideaccess routes fornon-Federal land-owners, with exactIocations Includedin d-2 designations,or by reference tomaps filed later

Use of Federal d-2lands for Alaskantransportation sys-tem needs specifi-.cally accommo-dated through (a)transportation sys-tern right.of.wayprovisions, or (b)designated corri-dors, or (c) newFederal-State re-view agency forAlaskan t ranspor ttion systems

NowTIMING OFACCESS DECISION

Now Deferral—now, Accessdecision — later

Now

Provision of d-2 landslegislation —or as newauthority amendmentof existing right.of-wayprovisions

Now Now

Provision of d-2 landslegislation, or newamendment of existingprovisions— newauthority

Congress makes d-2lands designationswithout any provisionfor nonrecreationalaccess

Specific deferral provi-sion in d-2 landsIegislation

Provisions of d-2 landslegislation, or newand exchange author-ity

Provision of d-2 landslegislation—newauthority

LEGISLATIVEIMPLEMEN-TATION

IMPLEMENTINGINSTITUTIONALARRANGEMENT’

(a) & (b) Existing in-stitutions and/or (c) anew reviewing body forAlaska transportationsystems.

Existing Institutions Existing Institutions Existing Institutions Existing Institutions Existing Institutions

(a) & (b) Existing deci-sion mechanisms, or(c) existing transporta-tion decisionmakinglnstitutions plus newreview body

Existing decisionmechanism. Use ofFederal conservationsystem lands forAlaskan transportationsystem not permittedwithout congressionalapproval. (The restric-tion IS for transporta-tion system use andwould not remove ex-isting accessguarantees for non-federal landowners.)

TRANSPORTA-TION SYSTEMDECISION 2

Existing decisionmechanism— Federal-State transportationplanning and FederalDOT 4(f) review. Latercongressional reviewof specific systems viaprogram approvals andappropriations

Existing decisionmechanism—transportation systems use ofFederal d-2 landsdelayed until policydecision

Existing decisionmechanism—this op-tion provision doesnot authorize rights-of -way for developmentof major transporta-tion systems

Existing transportationdecision mechanism–local boundary shiftswould leave accessroutes as public lands(d-1 classification) withfewer use restrictionsthan parks, etc., andalso available for laterState selection DOT4(f) review of route notrequired in mostcases, land exchangewould put route innon-Federal owner-ship

‘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 Serwce2Exlstln~ agencies involved In transportation declslonmaklng Include. Departm~nt of Transportation—federal Highway Administration, Federal Avlatlon ~d-rninlstratlorr, Federal Railroad Adml nistratlon, Interstate Commerce Commlsslon; U S. Coast Guard; Department of the Army, Corps of Engineers, and the Federal Power Commwsion.


OPTION 2–DEFERRAL OFCONGRESSIONAL ACTION ON AN

ACCESS POLICY

This option calls for a specific deferral ofaccess questions involving d-2 designationsand remaining Federal lands in Alaska. Thisoption would assure future congressional re-view of access decisions, would allow for spe-cific studies now underway to be completed,for new studies to be initiated if needed, forfinal landownership patterns to be deter-mined, and for State transportation planningto proceed. National interest lands would beprotected while the access policy decisionswere being made. The uncertainties aboutthe availability of land for access purposeswould continue, with delay or abandonmentof mineral exploration and development ac-tivities in areas without alternative transpor-tation. Executive agencies might be reluctantto grant access across Federal lands until thefinal congressional policy decision has beenmade.

OPTION 3–LIMITED PROVISIONSFOR ALASKAN ACCESS NEEDS

This option has two approaches: Option 3Awould provide for a special right-of-way pro-vision for Alaska conservation systems; Op-tion 3B would provide for the exclusion oftransportation system routes from conserva-tion system classification by making minorboundary adjustments and land exchanges.

Option 3A does not authorize approval oftransportation system rights-of-way throughFederal conservation systems. This approachwould provide non-Federal landowners withan assurance of necessary access throughFederal lands for resource development sub-ject to regulation by the land managing agen-cies. It would allow access for non-Federalowners requiring passage through d-2 lands,especially those whose access needs are notnow covered by existing laws. This optioncould compromise the protective intent ofconservation systems, particularly parks andwilderness designations that strictly limitconflicting use.

Under Option 3B land exchanges andrealinement of exterior boundaries of conser-vation system units could accommodate ac-cess needs by leaving the access routes inpublic land classification. Natural transpor-tation routes and historically used accesswould be excluded from d-2 designations bythis approach. Land exchanges could permitthe use of Federal lands for necessary accessroutes to non-Federal areas. In some areas,realinement or exchange could conflict withthe purposes of conservation system designa-tion, and might impair the ability of themanaging agencies to protect the naturalvalues of the units. Boundary adjustmentsto accommodate anticipated transportationroutes would have to be based on potentialtransport needs, and could lead to the selec-tion of speculative or controversial routes.Possible consequences could be the selectionof inadequate routes for mineral productionand the failure to provide some areas withroutes to meet future public needs.

OPTION 4–ALASKANTRANSPORTATION SYSTEM

ACCESS PROVISIONS

Under this option, congressional authoriza-tion would be specifically provided for the de-velopment of transportation systems. Threeapproaches are examined: Option 4A, theenactment of a right-of-way provision fortransportation systems that would be ap-plicable to all Alaska conservation systemlands; Option 4B, the reservation of specifictransportation corridors through d-2 lands;and Option 4C, the establishment of a new in-stitutional decisionmaking mechanism to re-view proposals for crossing conservationsystem lands.

Under Option 4A an Alaskan transporta-tion system right-of-way provision would pro-vide for approval of transportation routes inthe future based on demonstrated need andspecific proposals for transport systems. TheSecretary of the managing department wouldbe authorized to approve rights-of-way formajor transportation systems through conser-


vation systems, which would facilitate themovement of mine products to markets, butsuch approval could compromise the protec-tive purpose of conservation system designa-tions.

Under Option 4B future routes through d-2lands would be limited to the specific cor-ridors designated by Congress. Other trans-portation routes would require approvalunder existing access processes. The limiteddata now available on future transportationneeds make corridor designation difficult.This option could lead to the selection ofroutes that might be inadequate for futureneeds and to later demands for additionalcorridors. It could reduce the ability of themanaging agency to control the harmful ef-fects of access uses.

Under Option 4C special legislation wouldestablish a new decisionmaking mechanismto review transportation system rights-of-wayapplications. The participation of interestedparties (Federal and State agencies, localgovernments, Native Corporations, environ-mental groups, etc. ) in the review of transpor-tation routes across Federal lands would pro-vide the benefit of many views to the Secre-

tary of the managing agency when making thefinal access decision. This option would alsoassure the consideration of transportationneeds in land management planning and deci-sionmaking.

OPTION 5–RESTRICTION OFACCESS ACROSS NATIONAL

CONSERVATION SYSTEM LANDS

This option would limit nonessential accessuses of conservation lands to add a furthermeasure of protection and preservation fortheir natural values. No transportation sys-tems could be built across Federal conserva-tion systems lands without express congres-sional approval. The option would not imposea complete ban on crossing Federal lands toreach non-Federal holdings. Existing accessrights and the needs of non-Federal land-owners to reach surrounded or other landsthat have no reasonably available means ofaccess could be accommodated. Existing ac-cess rights, Wilderness Act access excep-tions, and established public use rights-of-way would be recognized. The discretion ofland managers to approve the use of Federallands for access purposes would be limited.

ACCESS TO NON-FEDERAL MINERAL LANDS IN OTHER STATES

The range of access options developed forthis report apply to Alaska where accessacross Federal lands is an issue of wide-spread concern. The absence of access op-tions for Federal lands in other States shouldnot be interpreted as meaning that no prob-lems exist outside Alaska. However, based onOTA interviews and contractor studies, it ap-pears that there are few, if any, non-Federalminerals access problems in other States be-cause of landownership or transportation

patterns. OTA conducted interviews in sev-eral States with representatives of the miningindustry, of local governments, of environ-mental groups, and of other interests. Theseinterviews disclosed no instances where min-eral development on non-Federal land wasprevented by the denial of access across Fed-eral lands. Most non-Federal mineral areasoutside of Alaska are adequately served byexisting transportation networks.

UPDATE–ALASKA LANDS LEGISLATION IN THE 96TH CONGRESS

As this report was being prepared for final I mentally altered the context in which thepublication, the Carter Administration funda- Alaska Lands debate will proceed in the 96th

16 “ Analysis of Laws Governing Access Across Federal Lands

Congress. By Presidential actionAntiquities Act, the managementtion of 56 million acres of Federal

under theclassifica -lands was

determined by the creation of 13 new na-tional parks, 2 new national wildlife refuges,and 2 national forest monuments. An addi-tional 40 million acres will be added to theNational Wildlife Refuge System by Secre-tarial action under the Federal Land Policyand Management Act. These new parks, ref-uges, and national forest monuments will nowbe managed under the existing laws govern-ing these systems. The current situation foraccess across these lands is similar to OTAOption 1 in this report. Thus, for about 96million acres of public land in Alaska, theissue before Congress will be whether theselands should continue to be protected under

conservation system classifications and, notas in previous debates, whether they shouldbe protected at all.

While Executive actions creating new na-tional monuments and wildlife refuge with-drawals have determined the managementclassification of most of the lands covered bythe “d-2” proposals in the 95th Congress,other land management issues remain. Thetask of establishing a land managementframework for Federal land in Alaska is notyet complete. Many policy issues such as ac-cess, additional wilderness and wild andscenic rivers protection, subsistence hunting,wildlife management, mineral resourcesavailability, and State and Native convey-ances remain to be settled.

2

Introduction

.— . .

Chapter 2.--lNTRODUCTlON

1.2.3.4.

FIGURES

Land Status Map of Alaska ● ******Metallogenic Provinces in Alaska. .Transportation Networks in AlaskaGeographic Study Areas ● ☛

Page

● . ● ● ● ● ● * ● ● ● ● ● ● ● ● ● 20● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● 22,.. . ● c . . . ● ● . . . . . . 24● ● $ ● ● ● ● . ● ● , ● ● ● ● Q ● 26

Introduction

This report contains information derivedfrom an Office of Technology Assessment(OTA) assessment of the effects of Federallaws, policies, and practices on accessthrough Federal to non-Federal lands. Itmakes available the results of an analysis, bythe OTA staff and its consultants, of theissues associated with the legal aspects of ac-cess, and presents a range of options dealingwith access through Alaska lands.

The issues concerning access through Fed-eral lands differ in their seriousness, theirdetail, and their visibility. Based on data col-lected nationwide,l OTA found that Federallaws, policies, and practices are a factor inaccess decisions in all parts of the country;Federal land management practices are animportant issue in the contiguous UnitedStates; and the land management laws andpolicies governing those Federal lands thatare to be placed in conservation systemsunder pending Alaska National InterestLands legislation are primary concerns inAlaska.

The information contained in this report isrelevant to the current congressional de-

IInformation gathering by public participation inter-views was important to analyzing Federal laws, poli-cies, and practices affecting access. Appendix C in-cludes a discussion of the methodology for OTA’s na-tionwide data gathering and analysis effort. Interestgroups (nearly 600 individuals) who were contacted byOTA staff and OTA consultants and contractors arecited in the preface and in appendix C. In addition,FSLUPCA summaries of public input gathered in 1973regarding disposition of (d)(2) lands were reviewed.

liberations about Alaska lands called for bysection 17(d)(2) of the Alaska Native ClaimsSettlement Act (ANCSA), and particularly tothe use of Alaska conservation lands for pur-poses of access to non-Federal mineral-bearing lands.

Prior to the Alaska Statehood Act andANCSA, less than 1 percent of Alaska’s landwas in non-Federal ownership. There will bechanges in the landownership patterns whenconveyance of the Native and State landsunder these Acts is completed, but approx-imately 60 percent or 220 million acres willremain in Federal ownership (see figure 1).The management of these federally ownedlands will depend on the land managementclassification of specific units as designatedby Congress. This report examines the ex-isting laws under which Federal land man-agement agencies grant access. A range ofaccess options is presented and discussed.

Alaska land management issues are com-plex. They have been and continue to be thesubject of intense public debate. Decidinghow the land should be used is an importantnational public policy issue, To resolve theseland use questions requires balancing manyvalues, among which are resource develop-ment, social needs, and environmental pro-tection. The conflict between providing foraccess (whether for mining or other pur-poses) and protecting the primitive values ofthe land is part of the larger public debate.Any analysis of the access process (i.e., theterms and conditions of access and how it

19

—— .—


o

f

Ch. 2 Introduction ● 21

might be achieved) is, therefore, closely tiedto the question of whether or not accessacross Federal lands for non-Federal mineraldevelopment is an appropriate use of theFederal lands. Access, as a value, must beweighed against conservation and socialvalues such as the loss of wilderness, ofwildlife, and of a subsistence lifestyle.

Among the access issue-related questionsare the following:

●

●

●

Should an access decision be made nowconsidering the incompleteness of in-formation about mineral potential andthe location of minerals?

Should an access decision be made nowconsidering the uncertainties about thetiming of minerals development?

Will facilitating access be sufficient forthe development of Alaska’s minerals, orwill there be other determining factors,such as market restraints?

Mining interests argue that Alaska landsare important potential sources of domesticsupplies of both fuel and nonfuel minerals(figure 2) As the Federal-State Land UsePlanning Commission for Alaska (FSLUPCA)has stated, “The major national interests tobe met in Alaska, apart from natural values,are those for energy resources and importantminerals.” 2

A central issue in the debate on grantingaccess in Alaska, particularly for the devel-opment of hardrock minerals, concerns theeconomics and the timing of mine develop-ment. Some contend that hardrock mining,under present market conditions, is not likelyto develop in the near term (between now and1990).3 Mining interests, however, believethat development is possible before that

2“TheD-2Book’’Lands ofNational lnterestinAlaska,FSLUPCA, May1977,p. 17.

3Bradford H. Tuck, Land Use Planning, the (D~2)Lands and Alaska Resources: Some Economic Consid-erations, FSLUPCAStudy No. 22,August1977.

date. 4 These interests argue further that ex-ploration and mine development should bepart of the economic development planning ofthe State and of the Native Corporations andthat small mining interests in particular arevulnerable to access restrictions.5

Conservation interests argue that Alaska isthe only State in which there are extensiveareas of land with only minimal intrusionfrom human activities. Rural residents, par-ticularly Aleut, Eskimo, and Indian citizens,still depend on the resources of the land andthe waters for food. Thus, continued subsist-ence hunting, fishing, and gathering are es-sential to many communities. Since arcticecosystems are relatively simple and adjustpoorly to stress, many areas are vulnerable tothe changes that accompany intensive usessuch as mining. Regeneration rates for vege-tation are slow, and wildlife populations of-ten require extensive habitats. As a result,the environmental consequences of intensiveland use, especially in the far north, are moresevere than in other States, and it takes amuch longer time for flora and fauna torecover.

Access for resource development is closelyrelated to the improvement and future expan-sion of surface transportation systems. Inorder to develop hardrock mineral resourcesin some areas, surface facilities will have tobe constructed that move large quantities ofbulk ores. Compared to the contiguous United

40TA Mineral Resources Workshop, Fairbanks,Alaska, August 1977. This workshop was supported inpart by OTA funds and in part by workshop par-ticipants.

5The possible effects of access restrictions on smallmining interests were identified during interviews inAlaska conducted by Dr. F, J. Wobber, OTA project di-rector, in January 1977. An OTA Working Paper, TheEconomic Importance of the Small Miner and SmallMining Businesses in Alaska by C. C. Hawley and J. W,Whitney suggests that the future interests of smallminers and prospectors may weII be dependent uponland status, mining laws, and reasonable access, Eco-nomic benefits from small mining businesses are alsodiscussed, See Analysis of Laws Governing AccessAcross Federal Lands: Options for Access in Alaska,Volume 11, Working Papers (OTA M-76).

22 . Analysis of Laws Governing Access Across Federal Lands

Ch. 2 Introduction ● 2 3

States, Alaska has a limited surface trans-portation network (figure 3). Most of the set-tlements throughout the State are connectedby air. But, like access, the expansion of sur-face transport is a controversial issue.’

Settling the uncertainties about an accesspolicy decision can facilitate the resolutionof transportation issues. But regardless ofwhether Congress specifically addresses thetopic of transportation requirements acrossthe proposed conservation areas, the d-2lands access policy decisions will have impli-cations for non-Federal landowners. Becauseof the large tracts of Federal lands and be-cause of the transportation limitations, re-source development on non-Federal (Stateand Native) lands will have to take into ac-count nearby or adjacent Federal holdings.

In choosing in which of the various Federalconservation systems (Parks, Wildlife Ref-uges, Wild and Scenic Rivers, or NationalForests) to place the Alaska lands (the d-2land designations), Congress will decideabout how these Federal lands will be man-aged. The access authority of the agenciesthat manage Federal lands (the Park Service,the Fish and Wildlife Service, the ForestService, and the Bureau of Land Manage-ment) is derived from the laws that govern thevarious systems. Therefore, the availabilityof access through Federal lands is dependenton the laws and policies that govern the man-agement system in which they are placed.

Congressional deliberations on access inAlaska range from local concerns about thesurface movement of ore, to statewide con-cerns about the ramifications of extendingsurface transportation systems. These issueshave implications both for the economy of theState and for the conservation values of thenational interest lands.

This report is not intended to deal com-prehensively with all of the issues associated

‘Paul Engelmen and Bradford Tuck with Jerry D.Kreitner and Demis M, Dooley, Transportation andDevelopment of Alaska Natural Resources, FSLUPCAStudy No. 32, March 1978.

with access. It reflects a more specific con-cern. The Technology Assessment Board ap-proved a study to ascertain the problems ofaccess to non-Federal land arising from Fed-eral land policies, and the impacts of mod-ifying those policies.7 This authorizationfocused on determining the extent to whichFederal policies on the use of Federal landsfor access purposes influence hardrock min-ing on non-Federal lands.

While this assessment has been sensitiveto the complex issues of land use and manage-ment in Alaska, the tasks have been limited toanalyzing Federal laws, policies, and prac-tices as they affect access through the Fed-eral domain to non-Federal mineral-bearinglands. Issues such as the impact of largenumbers of people who might cross Federallands if access is unregulated; the social con-sequences of changes in the rural Alaskanlifestyle with expanded surface transporta-tion; the reduction of wildlife and wild landsresources from increased use; and the impactof access on recreation are all of major im-portance in the Alaska Lands debate.8 How-ever, as noted above, the analysis of theseissues is beyond the scope of this assessment.

In response to a full range of views on howCongress might best respond to access issues,OTA has generated a variety of policy alter-natives for congressional consideration. Thedevelopment of these options drew on manysources: OTA staff interviews in Alaska; anexamination of existing Federal land manage-ment laws (analyzed in this report); an in-dependent analysis of five Alaskan geo-graphic study areas by the OTA staff, com-plemented by the working papers prepared

Technology Assessment Board, Summary Minutes,March 16, 1976, p. 4. See also correspondence betweenSenator Ted Stevens and OTA Director Daddario datedMarch 9, 1976 and assessment proposal dated March12, 1976.

‘OTA Environmental Resources Workshop, Fair-banks, Alaska, October 1977. This workshop wasfunded by OTA under a grant to the WildernessSociety.


c.-

<

I

I

0

0

0.

r.

Ch. 2 Introduction Ž 25

by contractors and consultants;9 and discus-sions with congressional staff members.

In recent years, some interest groups inAlaska—such as Native Regional Corpora-tions, mining interests, and others—have ex-pressed concern about possible restrictionson access for natural resources development.Some also anticipate that large tracts ofFederal conservation system lands will in-hibit the expansion of the State’s limited sur-face transportation network that might beneeded for minerals development. In re-sponse to these concerns, OTA selected fiveareas for study to measure the seriousness ofthe access problem.

The five areas selected for intensiveanalysis are (figure 4): the Seward Peninsula,the Ambler River-Baird Mountains region,the Yukon-Charley-Forty Mile Rivers drain-age, the Wrangell-St. Elias Mountains region,and the Mt. McKinley region.10 The criteriafor their selection included past and presentmineral extraction, high scenic, wildlife, sub-sistence, and other values, existence or lackof surface transportation, adjoining Federal/non-Federal landholdings, and the perceptionby mining and environmental interests thatvalue conflicts involving access were likely tooccur in the area.

The information on study areas was gath-ered by OTA staff who conducted interviews,

‘Analysis of Laws Governing Access Across FederalLands: Options for Access in Alaska, Volume II, Work-ing Papers (OTA-M-76). Other unpublished OTA work-ing papers addressing various questions concerning ac-cess in Alaska and other States are cited in appendix C.

Iosix candidate study areas were identified duringOTA staff interviews in Alaska. Mining and environ-mental groups and the Advisory Panel supported thechoice of the five study areas finally selected by OTA.Despite the interest of many groups over growing min-erals development activity in mineralized areas ofsoutheastern Alaska, OTA omitted southeastern Alas-ka as a study area. Southeastern Alaska was excludedas a study area because OTA staff interviews sug-gested that the area highlighted issues of access tominerals on Federal, rather than non-Federal land.

and by workshops.ll The workshops were in-dependently convened by conservation andmining industry representatives. All datawere then re-evaluated by the OTA staff.

The analysis of these various study areas12

gives a perspective of the seriousness of theproblems associated with access throughFederal lands in Alaska. Based on existing in-formation about the location of mineral de-posits, landownership patterns, and trans-portation availability, it was found that:

1. The need for rights-of-way across Fed-eral lands to reach non-Federal mineralsis a localized problem, likely to occur inscattered instances. Similarly, the needfor rights-of-way across Federal lands toreach existing surface transportation islikely to occur infrequently.

Rights-of-way to reach existing transpor-tation are most likely to be required inthe near term in the Yukon-Charley-Forty Mile Rivers area. Surface trans-portation and rights-of-way exist in theMt. McKinley, Wrangell-St. Elias, andYukon-Charley-Forty Mile areas wherenon-Federal lands are contiguous. Juris-diction over existing transportationroutes in these areas is already in non-Federal hands.

2. In some regions of Alaska, mineral de-velopment will necessitate the improve-ment of existing transportation and theconstruction of new systems. The lack oftransportation modes capable of movinglarge volumes of bulk materials, in com-bination with local economic or interna-

1lInitial interviews with Federal, State, and privateinterest groups in Alaska were conducted by Dr. F. J.Wobber, OTA project director, in January 1977 withfollowup interviews in August and in October 1977.Based on these interviews, five areas were identifiedand verified as representative of anticipated conflictsamong mineral resources and other values that mightemerge because of the need to use Federal lands for ac-cess to non-Federal land,

12 See Working Papers, supra, note 9.


//(

0

0

0

0 “

Ch. 2 Introduction ● 27

tional market restraints, could deter thefuture expansion of hardrock mining inthose areas.

Some areas that contain Federal hold-ings isolate non-Federal lands from therest of the State and from each other. Inthese remote areas, such as the SewardPeninsula and the Ambler River-BairdMountains region, the construction ofnew transportation systems—whether astatewide or regional approach isadopted—will involve long distances.These systems will probably have tocross lands in Federal, State, and Nativeownership.

It must be noted that these conclusionscould be subject to some modification as newinformation on mineral deposits becomesavailable, as State and Native selections pro-gress, and as Congress decides on the finalboundaries of d-2 lands.

Where existing air and water transporta-tion does not serve bulk mineral productionadequately, new transportation facilities willhave to be constructed if resource develop-ment is to proceed. Elsewhere, improved ac-cess to existing transportation, particularlyroads, is needed. The availability of rights-of-way to reach existing transportation systemsor new ones, which may be developed in thefuture, is site specific. It depends primarilyon the access provisions of existing laws thatgovern the particular land management sys-tem involved and the proposed access routeand use.

Little published information could be foundabout the factors, particularly surface accessuse of Federal land, that influence the avail-ability of minerals on non-Federal lands. Forthis reason, a special effort was made to ac-quire new data (see appendix C). A substan-tial amount of information was obtained


[

Ch. 2 Introduction ● 2 9

through interviews conducted by OTA; addi-tional information was obtained by consult-ants and contractors. To verify the results ofconsultant and contractor interviews, OTAconducted supplementary interviews to ob-tain the disparate views of the various in-terest groups.

A number of sources supplied backgroundinformation, which proved to be particularlyuseful. The Congressional Research Serviceprovided an issue brief, “Alaska National In-terest Lands (d-2] Legislation, ” and a specialreport for OTA entitled, “Access to Minerals:With Emphasis on Private Lands. ” The Fed-eral-State Land Use Planning Commission forAlaska contributed numerous internal legalmemoranda, since published as “SelectedLegal Memoranda, Volumes I and II. ” Back-ground data concerning non-Federal mineralresources and transportation access require-ments for hardrock minerals development arecontained in an OTA Working Paper titled“Assessment of Transportation Access Re-quirements for Minerals Exploration andMine Development and Operation in Alaska. ”Insights into the environmental and social im-pacts of access were provided in a workshopreport, “Assessment of EnvironmentalPenalties Introduced by Transportation Ac-cess to Alaska Non-Federal Mineral Re-sources” prepared by the Wilderness So-ciety (see Vol. 11, Working Papers). Variouscontractor and consultant reports (see appen-dix C) and consultations with the Advisorypanel provided additional information.

This report focuses on two topics: the ac-cess provisions of Federal laws, and optionsfor congressional consideration that dealwith the process of obtaining access acrossFederal lands in Alaska.

Chapter 3 is a summary of the Federallaws governing access across Federal lands.Chapter 4 describes and analyzes the accessprovisions of the laws that govern Federalland management systems. Chapter 5 ex-amines Alaskan land laws, such as theAlaska Native Claims Settlement Act,Trans-Alaska Pipeline Authorization Act,the Alaska Statehood Act. Chapter 6

theanddis-

cusses major environmental and land plan-ning laws that affect access across Federalland systems.

Chapter 7 presents five access policy op-tions for congressional consideration. Theserange from an extension of the existing ac-cess policies of the Federal land managementsystems to the Alaskan additions to the na-tional conservation systems, through specialAlaskan right-of-way and transportation sys-tem provisions, to a statutory restriction ofmost access uses of conservation system (d-2)lands.

The focus of this report is on the legaldimensions of access policy, and particularlyon those factors that affect hardrock min-erals development. Options are presented foralternative access provisions that may proveuseful during congressional deliberations onthe Alaska Lands legislation.

3Federal Laws

Affecting Access

—— -.-. .

Chapter 3.- FEDERAL LAWS AFFECTING ACCESS

Page--- Introduction ● * . * m * e a * * 9 e * e * * * * * * * * * * * e 9 * * * * e a * m * * * 33

Federal Land Management Systems. . . . . . . . . . . . . . . . . . . 35Public Lands ● * e * * * * * * * * * * * . * m e * 9 * * * * * * * e . * . * * . * * 35National Park System ● *******.*,*,.*.***.******** 37National Wildlife Refuge System. . . . . . . . . . . . . . . . . . . . 38National Forest System ● **** **** *s **m******.****** 39National Wild and Scenic Rivers System . . . . . . . . . . . . . 40National Wilderness Preservation System-. . . . . . . . . . . . 42

Management Systems and d-2 Designations. . . . . . . . . . . . . 43Federal Laws Relating to Alaska Lands and Mineral

Resources ● *0** **** **9e*** 0*** ***9 eem****e **0* 44Alaska Statehood Act ● * * * * * 9 * * * * * * * * * * * * * * * * * * * * * 44Other Laws ● * * * * * . 8 D * * * * * * * * . * * . * . * * . * * * * * . * * * * * 46

Federal Land Planning and Environmental Laws. . . . . . . . . 47

3Federal Laws

Affecting Access

INTRODUCTION

A complex web of laws, regulations, pol-icies, and agency practices controls the use ofFederal lands. The availability of access useof Federal lands for any given mineral re-source development project is dependent onthese legal controls, as well as on economicand physical factors.

Decisions on access are rarely simple. Ex-cept in unusual circumstances, numerous al-ternatives are available to any party seekingsurface transportation between two points ofnon-Federal land. There may be many possi-ble routes, a variety of transportation modes(e.g., train, truck, barge), and a number of dif-ferent protective measures to safeguardother land values. In principle, it is almostalways possible to travel between any twonon-Federal areas in Alaska without usingFederal lands for access; airplanes or hel-icopters obviate the need to ever set foot onFederal lands. Meaningful access, however,generally requires the ability to use interven-ing Federal lands for the construction of sur-face transportation systems adequate tomove men, machinery, and materials eco-nomically. The ultimate choice of route,transportation mode, and protective meas-ures will be determined by the legal con-siderations that regulate the use of any af-fected Federal lands.

This report analyzes those laws that willhave the greatest influence on decisions re-lating to the use of Federal lands in Alaskafor access to mineral resources on non-Fed-eral lands. For the purposes of this report,the analysis is confined to land in the sixFederal land management systems. Landsmanaged by other Federal agencies for pro-gram purposes, including military reserva-tions, Department of Energy lands, and theNational Petroleum Reserve in Alaska, arenot discussed. Federal lands do not includeIndian reservations, which are managed bythe Government in trust, nor do they includelands selected by Alaskan Regional Corpora-tions or villages pursuant to the AlaskaNative Claims Settlement Act (ANCSA).

The analysis of access to non-Federal landsdoes not include access to mineral claims onFederal lands, even where the claims havebeen patented and are in private ownership.It also does not include any consideration ofaccess to ‘‘inholdings’ or other valid oc-cupancies within a national park or forest.

Access is an enforceable legal right to usecertain lands for a specific purpose. It may beconferred by a special use permit, by an ease-ment, by a right-of-way or, in certain limitedconditions, through public use. There are two

33


major types of access, private and public. Pri-vate access, on which most of this chapter isfocused, is a right granted to a specific in-dividual or corporation to use lands; general-ly the grantee is responsible for providingwhatever facilities are needed to make ac-cess feasible. Public access involves the con-struction of roads and highways by the Fed-eral, State, or local government. This may in-volve condemning land within one of the Fed-eral land management systems and transfer-ring it to the control of the Department ofTransportation. The laws governing publicaccess are covered in the review of section4(f) of the Department of Transportation Actand the National Forest Transportation Sys-tem.

The analysis of Federal laws affecting ac-cess to minerals on non-Federal lands at-tempted to answer the following questions,which are relevant to policy decisions on thedisposition of Alaska National-Interest Lands:

●

●

●

●

●

●

What provisions of Federal land man-agement laws provide access acrossFederal lands for the development ofminerals on non-Federal lands?

What terms and conditions are placedon such access use of Federal lands?

Do existing laws and policies governingthe Federal land management systemsprovide rights-of-way across the publiclands and national conservation systemsin Alaska?

What other Federal laws influence ac-cess across Federal lands?

What is the impact of Federal land plan-ning and environmental laws on access?

What effect does the presence of feder-ally managed areas have on mineral ac-cess and mining activities in surroundingareas?

3--~ti~.

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-gories of Federal laws that affect accesswere examined. They are:

1.

2.

Federal Land Management Laws—Laws and regulations providing for ac-cess across units of the six Federal landmanagement systems: public lands, Na-tional Park System, National WildlifeRefuge System, National Forest System,National Wild and Scenic Rivers System,and National Wilderness PreservationSystem.

Federal Laws Relating to Alaska Landsand Mineral Resources-The AlaskaStatehood Act, the Alaska Native Claims

Settlement Act, the Trans-Alaska Pipe-line Authorization Act, the Alaska Natu-ral Gas Transportation Act of 1976, andthe Naval Petroleum Reserves Produc-tion Act of 1976.

Federal Land Planning and Environ-mental Laws—These laws can affect theavailability of access through variousprocedural and substantive require-ments. The report analyzes the impacton access of the National EnvironmentalPolicy Act of 1969, section 4(f) of the De-partment of Transportation Act, the En-dangered Species Act, the Clean Air Act,the Clean Water Act, and the CoastalZone Management Act.

FEDERAL LAND MANAGEMENT SYSTEMS

Each Federal land management system hasits own rules governing access for mineral de-velopment on non-Federal lands. Two factorsdetermine the terms and conditions placed onaccess use of Federal lands: (1) the classifi-cation of the affected land, and (2) the pro-posed use for which access is needed. Landmanagers for every system, including the Wil-derness System, have statutory authority togrant some rights-of-way. The availability ofsuch grants and the nature of any conditionsreflect the general purposes for which the af-fected unit is managed.

PUBLIC LANDS

The Bureau of Land Management (BLM)administers the public lands. The Secretaryof the Interior has comprehensive authorityunder Title V of the Federal Land Policy andManagement Act of 1976, (commonly knownas the BLM Organic Act) to grant rights-of-way over the public lands, except lands indesignated wilderness areas, Rights-of-way

are specifically authorized for “roads, trails,highways, railroads, . . . airways, or othermeans of transportation . . . or such othernecessary transportation or other systems orfacilities which are in the public interest andwhich require rights-of-way over, upon, un-der, or through such lands. ” This compre-hensive authority provides a legal basis forrights-of-way over public land areas for ac-cess to minerals on non-Federal lands or forthe construction or improvement and expan-sion of transportation systems. There are twolimitations on this general availability ofrights-of-way:

. BLM public lands wilderness areas.—The Secretary of the Interior may allowaccess use of public lands that are partof the National Wilderness PreservationSystem only as provided in the Wilder-ness Act of 1964. All access provisionsof the Wilderness Act applicable to na-tional forest wilderness areas are ap-plicable to designated wilderness areasmanaged by the BLM. The exceptionsrelevant to access for purposes of non-


Federal minerals exploration and devel-opment are:—Existing private rights.

—Continued use of aircraft and motor-boats where use predates wildernessdesignation.

—Access to State and private landscompletely surrounded by a wilder-ness area or exchange of the sur-rounded lands for other Federal landof equal value.

—Access to valid mining claims andother valid occupancies wholly withina wilderness area by means custom-arily enjoyed in other areas similarlysituated.

—Presidentially granted exceptions forfacilities, including roads, in the na-tional interest.

—Any other exceptions expressly pro-vided by Congress for specific wilder-ness areas.

c“.- ““ ‘ “a

Bush plane, a primary means for transportation of people and supplies in rural Alaska


. Public lands in wilderness study clas-sification.—Section 603 of the BLM Or-ganic Act requires that the BLM inven-tory all roadless public land areas of5,000 acres or more and roadless islandsfor wilderness potential. Those areaswith wilderness potential are to be clas-sified as wilderness study areas andmanaged to preserve those values untilcompletion of administrative review andcongressional consideration. Whilerights-of-way are not prohibited in studyareas, section 603 imposes restrictionson the exercise of the right-of-way au-thority by limiting the Secretary’s dis-cretion to approve any use that conflictswith or impairs wilderness values.

NATIONAL PARK SYSTEM

The National Park System is managed bythe Secretary of the Interior through the Na-

tional Park Service for the purposes of pres-ervation of natural and historic values ofpark areas for the enjoyment of present andfuture generations. The Park Service isvested with broad discretionary authority tocontrol activities and uses within the nationalparks. There is no statutory provision ex-pressly authorizing rights-of-way throughpark areas for access to non-Federal lands.While the absence of a specific provisionauthorizing grants of rights-of-way across na-tional parks does not bar such use, it does notprovide assurance to non-Federal land-holders who may need to cross park lands.This lack of any assurance of access and of the terms and conditions of rights-of-waycould deter potential developers.

Non-Federal owners must rely on the gen-eral discretionary management authority ofthe Secretary and individual park super-intendents for access through park lands.Park regulations issued under this authority

Phofo Credit. The A/aska Coa//t/on

Camping, Wrangell-St. Elias Region


provide that special use permits may be is-sued for commercial and other use of existingpark roads for access to private lands withinor adjacent to a park for which other meansof access are not otherwise reasonably avail-able. Certain public lands statutes that areapplicable to the National Park System au-thorize rights-of-way through park areas forelectric power, communications, and waterdrainage and irrigation systems and facil-ities. The use of the right-of-way must be com-patible with the public interest and with thepurposes of the park system. These laws mayprovide rights-of-way through parks for util-ity systems associated with mineral resourcedevelopment on non-Federal lands. These

Snowy Owl

Golden Eagle

utility rights-of-way may not be used for otherforms of access to non-Federal lands or fortransportation systems.

NATIONAL WILDLIFE REFUGESYSTEM

The National Wildlife Refuge System ismanaged by the U.S. Fish and Wildlife Serv-ice. The Secretary of the Interior has ampleauthority to grant rights-of-way across unitsof the National Wildlife Refuge System foraccess to non-Federal lands or for transpor-tation systems where such use does not con-flict with the management purposes of a par-ticular area. The National Wildlife Refuge

Alaska Red Fox

Photo Cred/ts The Alaska Coal/tin?

Alaska Brown Bear — McNeil River

Ch. 3 Federal Laws Affecting Access .39

Administration Act authorizes the Secretaryof the Interior to permit the use of lands in theNational Wildlife Refuge System for any pur-pose, including access. Section 4 of the Actspecifically provides that rights-of-waythrough refuge areas may be granted for anypurpose, “such as . . . powerlines, telephonelines, canals, ditches, pipelines, and roads,”where such uses are determined to be com-patible with the purpose for which the refugeareas are established. “Compatible” meansthat the requested right-of-way or use will notinterfere with or detract from the purpose forwhich units of the refuge system are estab-lished.

Holders of rights-of-way are required topay the fair market value of the right-of-way.Net proceeds from right-of-way grants are de-posited into the Migratory Bird ConservationFund to be used for land acquisition. Section4 of the Refuge Administration Act largelysupplants other right-of-way provisions ap-plicable to the National Wildlife Refuge Sys-tem. There are two limitations on the avail-ability of rights-of-way across refuge units:

-.

.

●

●

Access uses of refuge system compo-nents of the National Wild and ScenicRivers System are governed by laws ap-plicable to the National Park Systemconsistent with purposes of the Wild andScenic Rivers System.

Access uses of Refuge System Wilder-ness areas may be granted only as recog-nized in the Wilderness Act and are thuslimited to those individual exceptionsspecifically provided by Congress and toexisting private rights. The exceptionsapplicable to national forest and BLMwilderness areas do not apply to refugewilderness areas. Use of refuge systemwilderness areas for transportation sys-tems and facilities must have expresscongressional approval.

NATIONAL FOREST SYSTEM

The national forests are managed by theForest Service under the mandate of theMultiple-Use Sustained-Yield Act of 1960.The Secretary of Agriculture has broad dis-

Phofo Crecflf OTA Staff

Tugboat towing logs to mill, Southeast Alaska


cretionary authority to allow the use of ForestSystem lands, except wilderness areas, foraccess to non-Federal mineral areas and fortransportation systems.

Express statutory authority for rights-of-way across national forest lands for accesspurposes is found in Title V of the FederalLand Policy and Management Act of 1976and in the Act of October 13, 1964, asamended, authorizing development of the Na-tional Forest Transportation System. Na-tional forest components of the NationalWilderness Preservation System and the Na-tional Wild and Scenic Rivers System aremanaged under the laws and regulations ap-plicable to those systems in addition togeneral laws governing the National ForestSystem. Access uses of these areas arelimited. The Federal Land Policy and Man-agement Act authorizes rights-of-way acrossforest lands, except designated wildernessareas, for roads, highways, railroads, andother transportation systems and facilities.The Act of October 13, 1964, as amended, au-thorizes grants of temporary or permanenteasements for road rights-of-way over na-tional forest lands. Forest service regulationsimplementing provisions relating to the Na-tional Forest Transportation System indicatea policy of coordinated planning with con-sideration of the transportation and resourcedevelopment needs of surrounding commu-nities. The Secretary of Agriculture may ap-prove rights-of-way and other access use offorest system components of the NationalWild and Scenic Rivers System under lawsapplicable to the forest system provided thatany conditions placed on grants of such ease-ments must be related to the policies and pur-poses of the Wild and Scenic Rivers Act.Rights-of-way through designated wildernessareas in the National Forest System may beapproved only as provided in the WildernessAct. The Wilderness Act recognizes the fol-lowing exceptions relevant to minerals ac-cess to non-Federal areas and transportationsystems:

—Existing private rights;—Preestablished use of aircraft and mo-

torboats in areas of national forest wil-derness subject to regulation by theSecretary;

—Rights necessary to provide adequate ac-cess to State or private lands completelysurrounded by a national forest wilder-ness area (or exchange of these lands forother Federal lands);

—Ingress and egress to valid mining claimsor other valid occupancies wholly withina forest wilderness area by means cus-tomarily enjoyed with respect to otherareas similarity situated;

—Presidential authorization of other facil-ities needed in the public interest “in-cluding road construction” or use wherehe determines that such use “will betterserve the interest of the United Statesand the people thereof” than will itsdenial; and

—Any other exception expressly providedby Congress for specific wildernessareas.

NATIONAL WILD ANDSCENIC RIVERS SYSTEM

The National Wild and Scenic Rivers Sys-tem was established so that certain riverswith outstandingly remarkable scenic, recre-ational, fish and wildlife, and other similarvalues would be “preserved and protected ina free-flowing condition for the benefit ofpresent and future generations. ” The systemincludes both federally and State designatedrivers. Federal wild and scenic rivers aremanaged by the land management agencythat had responsibility for the river before itsdesignation. The classification of rivers aswild, scenic, or recreational is made accord-ing to certain characteristics, including theiraccessibility by road; wild rivers are the leastaccessible, scenic rivers are more accessible,and recreational rivers are the most accessi-ble. Rivers are to be managed to preserve thevalues that led to their initial designation andclassification. Therefore, any use that mightbe detrimental to these values could bedenied.

.


The access provision of the Wild andScenic Rivers Act distinguishes betweenthose river components managed by the Sec-retary of the Interior and those managed bythe Secretary of Agriculture.

Rights-of-way across all wild and scenicrivers administered by the Secretary of theInterior are issued in accordance with thelaws applicable to the National Park Systemregardless of whether the river is part of theNational Park System, the National WildlifeRefuge System, or the public lands. For theserivers, there is no statutory provision ex-pressly authorizing rights-of-way for accessto non-Federal lands.

Rights-of-way for components adminis-tered by the Secretary of Agriculture areissued under laws relating to the NationalForest System. The Secretary of Agriculturehas ample authority to grant rights-of-wayover forest system component rivers underTitle V of the Federal Land Policy and Man-agement Act. There is additional authority togrant easements for roads and trails underlaws relating to development of the NationalForest Transportation System. Any condi-tions placed on the issuance of a right-of-wayor easement must be related to the purposesof the Wild and Scenic Rivers Act. When ariver is also managed as part of the Wilder-ness System, the more restrictive provisionsapply in case of any conflict.

H?ofo Credit Nat/ona/ Park Serv/ce

The Charley River meanders through a park-like setting


NATIONAL WILDERNESSPRESERVATION SYSTEM

The National Wilderness Preservationtem was created to provide the whole Nationwith “the benefits of an enduring resource ofwilderness. ” Congressionally designated wil-derness areas in national parks, forests, wild-life refuges, and public lands are managedunder special rules “for the use and enjoy-ment of the American people in such a man-ner as will leave them unimpaired for futureuse and enjoyment as wilderness. ” Provisionsof the Wilderness Act of 1964, and the regu-lations thereunder, which control activitiesand uses in wilderness areas, are protective

and stringent. The general policy for use ofwilderness areas is:

Except as specifically provided for in thisAct, and subject to existing Private rights,there shall be no commercial enterprise-andno permanent road within any wildernessarea designated by this Act and, except asnecessary to meet minimum requirements forthe administration of the area for the pur-pose of this Act (including measures re-quired in emergencies involving the healthand safety of persons within the area), thereshall be no temporary road, no use of motorvehicles, motorized equipment or motor-boats, no landing of aircraft, no other form ofmechanical transport, and no structure or in-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-nized in the Wilderness Act are limited to thefollowing:

a.

b.

c.

d.

e.

Preexisting private rights;

Access routes and facilities for wilder-ness recreation and management pur-poses;

Emergency purposes;

Established use of motorboats and air-craft where such use predates wilder-ness designation —subject to regulationby the management agency;

Presidential authorization of the use ofnational forest and public lands wilder-

MANAGEMENT SYSTEMS

The final congressional designation of ad-ditions to national conservation systemscalled for in section IT(d)(Z) of ANCSA willreduce some of the uncertainties concerningaccess use of Federal lands in Alaska. Theterms and conditions for obtaining accessacross some conservation units—forests, ref-uges, and public lands—can be anticipatedbased on existing laws and policies.

The public lands and the National ForestSystem have broad and comprehensive right-of-way provisions. Consequently, lands inthose two systems, with the exception of wil-derness study areas and designated wilder-ness areas, are the most available Federallands for access to non-Federal mineral landsand for construction of transportation routes.Access use and rights-of-way across refugesystem lands may be allowed in the discretionof the managing agency if the proposed use iscompatible with the purposes of the refugeand if the applicant agrees to pay the fairmarket value for the use.

Access use of national park lands restswith the management discretion of the Secre-tary and the individual park superintendent.

f.

g.

h.

ness areas for projects and facilities inthe national interest;

Adequate access rights for State andprivate lands completely surroundedby wilderness areas in national forestsor public lands;

Access to valid mining claims and othervalid occupancies wholly within a na-tional forest or public lands wildernessarea by means that are currently orcustomarily enjoyed in similarly situ-ated areas; and

Special provisions applicable to specif-ic wilderness areas.

AND d-2 DESIGNATIONS

Such use must be in conformance with thepurposes of the park system. There is no stat-utory provision expressly authorizing rights-of-way across park areas for access to non-Federal lands or for transportation systems.

Rights-of-way across National Wild andScenic Rivers System components managedby the Department of the Interior are issuedunder laws applicable to the National ParkSystem regardless of the managing agency.Access uses of wilderness areas is highly re-stricted and subject only to the exceptionsrecognized in the Wilderness Act. The wilder-ness review required by section 603 of theBLM Organic Act raises some uncertaintyabout the future availability of access use ofd-l lands (those public lands currently with-drawn under section IT(d)(l) of ANCSA thatwill remain after Native conveyances, Stateselections, and congressional designation ofconservation system additions under section17(d)(2)).

The BLM has decided that wilderness re-view of public land roadless areas in the low-er 48 States will have priority. The wilder-ness inventory of Alaska public lands will bedeferred until after congressional action on


Alaska National Interest Lands and settle-ment of Native selections and conveyancesunder ANCSA. This delay will allow an op-portunity for State and Native access needsto be defined. It will also permit decisions oninventory and use classification of remainingpublic lands to include a consideration of theimpacts of such classifications on the pro-tected values of new and existing conserva-tion system units. As a result of BLM wilder-ness reviews, additional Federal lands maybe placed under wilderness protection in thefuture. This protection will restrict accessuses of those areas.

It is difficult to ascertain what effect thesepossible future classifications will have onthe availability of public lands in Alaska foraccess purposes. The public land inventoryand wilderness review procedures, however,provide a mechanism for the State, NativeCorporations, or other parties to present anyneed to use the proposed wilderness areasfor access. Moreover, BLM wilderness areaswill be subject to all the exceptions ap-plicable to National Forest Wilderness areas,thus even after wilderness designation, sev-eral classes of access use are preserved.

FEDERAL LAWS RELATING TO ALASKA LANDS ANDMINERAL

Until statehood, over 99 percent of all landin Alaska was in Federal ownership. Al-though public land laws encouraging dispo-sition, such as the Homestead Acts, applied toAlaska lands, they did not operate to transfersignificant amounts of public land to privateownership.

Two laws—the Alaska Statehood Act andANCSA—will transfer more than 148 millionacres from Federal ownership. ANCSA alsoprovides a framework for the reclassificationof Federal lands in Alaska. Three other lawshave established special rules for the use ofsome Federal lands in Alaska in connectionwith three major energy development proj-ects.

An analysis of the Alaska Statehood Actand ANCSA indicates that development ofland-based resources, including minerals,was one of the purposes behind the unprec-edented grants of Federal lands to the Stateand to Alaska Natives. The House report ac-companying the Alaska Statehood Act indi-cates that the grants of lands and revenuesfrom lands were designed to remove a poten-tial impediment to the operation of an effec-tive State government. There was concernthat Alaska. which has always been heavily

. .

dependent on federally financed constructionprojects and military bases, could not supportthe costs of self-government from resourceson which revenue could be generated. Sim-ilarly, ANCSA’s grant of subsurface rights toprofit-making Native Regional Corporationswas one of several provisions designed to en-sure a viable economic future for AlaskaNatives.

ALASKA STATEHOOD ACT

The Alaska Statehood Act, enacted in1959, contains several important provisionsthat changed the previous patterns of land-ownership and control in Alaska. The Statewas permitted to select:

—102,550,000 acres of statehood landgrants from vacant, unreserved, and un-appropriated public lands;

—400,000 acres of vacant, unreserved,and unappropriated forest lands (withapproval of selection by the Secretary ofAgriculture) for community expansionand recreation purposes; and

—400,000 acres of vacant, unreserved andunappropriated public lands for com-


munity centers and recreation areas(with approval of selection by the Secre-tary of the Interior).

The Act confirmed prior Territorial grantsof university, mental health, and school landsof over 1 million acres. It also transferredmiscellaneous parcels of Territorial govern-ment property to the State and gave the Statetitle to 35 million to 40 million acres of sub-merged lands.

The State received full mineral rights in alllands granted or confirmed under the Act. AllState reconveyances of these lands must con-tain a reservation to the State of the mineralrights and the right-of-access to extract them.Alaska was permitted to select Federal landsthat were leased or in production under theMineral Leasing Act of 1920 and to succeedto all rights of the Federal Government. In ad-dition, the State received the following royal-ty rights on lands that remained in Federalownership:

—The right to receive 521/i percent of theleasing proceeds from the Mineral Leas-ing Act of 1920 in lieu of participation inthe reclamation fund. (This grant was inaddition to the 37½ percent of leasingrevenues paid to all public land Statesfor public road and educational pur-poses. Alaska thus received the right to90 percent of all leasing profits frompublic lands.)

—The right to receive 90 percent of Fed-eral revenues from the operation of Gov-ernment coal mines and coal leasesunder the Alaska Coal Leasing Act of1914.

In addition the State was given the right to5 percent of the net proceeds from the sale ofpublic lands in Alaska for education pur-poses, and 70 percent of the net proceeds ofthe Pribilof Islands fur trade.

The Alaska Native Claims Settlement Actextinguished all Native claims to lands andhunting and fishing rights based on aborig-inal title or use. In exchange, the Alaska In-dians, Aleuts, and Eskimos received: (1) the

right to select 44 million acres of unreservedFederal lands, and (2) distributions from aNative fund of $962.5 million.

The Act authorizes the establishment of 13profit-making Native Regional Corporations.The Regional Corporations administer distri-butions from the Native fund, hold title tolands not specifically apportioned to VillageCorporations, and hold subsurface rights toall selected lands. Village Corporations holdtitle to surface rights in lands selected in andaround villages and receive disbursements offunds and other revenues from the RegionalCorporations.

The 44 million acres were apportioned ac-cording to a complex formula. Village Cor-porations were allowed to select surfacerights to approximately 22 million acres ofland in and around existing villages on thebasis of population. Regional Corporationsreceived proportional shares of all remaininglands. All subsurface rights (including min-eral rights) are vested in the Regional Cor-porations.

The grant of mineral rights to the profit-making Regional Corporations indicates anintent that those resources might be devel-oped, The Alaska Native Fund is also depend-ent on the development of mineral resources;payments of a 2-percent overriding royalty onall mineral-leasing revenues from State andFederal lands (other than the National Petro-leum Reserve) are to provide $500 million.

Section 17 of the Act established theFederal-State Land Use Planning Commissionfor Alaska. It is to identify necessary ease-ments across lands selected by Regional andVillage Corporations. The Secretary of the In-terior is to reserve such easements. No provi-sions were made for the reservation of ease-ments across Federal lands to assure accessto Native lands. The subsequent order reserv-ing extensive easements is the subject oflitigation. A tentative settlement has beenreached.

Section 17(d) of the Act provided for thereclassification of all Federal lands in the


State. Under section 17(d)(2), the Secretarywas authorized to withdraw 80 million acresof land for addition to or creation of nationalparks, forests, wildlife refuges, and wild andscenic rivers. To protect the national interestin these lands, they were withdrawn from allforms of appropriation under the public landlaws and the mining and mineral-leasinglaws, and from selection by the State underthe Alaska Statehood Act and by Native Re-gional Corporations under ANCSA. The au-thority for these withdrawals expired in De-cember 1978. The Secretary was also au-thorized to withdraw other lands to protectthe public interest under the authority of sec-tion ii’(d)(l); these withdrawals did not affectthe right of Village Corporations, RegionalCorporations, or the State to make land selec-tions within and around existing Native vil-lages.

OTHER LAWS

In addition, three other laws relating to therole of Federal land management in the devel-

opment of energy resources in Alaska are ex-amined. The Trans-Alaska Pipeline Act au-thorized an expedited procedure for grantinga right-of-way for the Alaska oil pipeline.Judicial and administrative review of licens-ing and environmental proceedings were lim-ited. The Act also required a reservation foradditional rights-of-way for compatible useson or adjacent to the pipeline right-of-way.The Alaska Natural Gas Transportation Actof 1976 provided a similar expedited pro-cedure for the consideration of several pro-posals to construct a natural gas pipeline.These expedited procedures provided forcoordinated review of right-of-way applica-tions covering several different managementsystems. The Naval Petroleum Reserve Pro-duction Act transferred jurisdiction over andmanagement of the Naval Petroleum Re-serves in Alaska to the Department of the In-terior. No provision was made for any right-of-way over the Reserve. The Secretary wasdirected to make a study of the nonpetroleumvalue of the reserve within 3 years.


Construction of the Trans-Alaska Pipeline


FEDERAL LAND PLANNING AND ENVIRONMENTAL LAWS

The report also analyzes a set of Federalland planning and environmental laws thathave, or were thought to have, an influenceon the availability of access for mineral re-source development. The laws have varied ef-fects. One, the Coastal Zone Management Act(CZMA), requires the establishment of com-prehensive land use planning. Two of theselaws, the Endangered Species Act and sec-tion 4(f) of the Department of TransportationAct, place substantive constraints on the ac-tivities of Federal land managers.

The National Environmental Policy Act of1969 (NEPA) places procedural requirementson Federal land managers that often applyduring decisionmaking on access requests.The Clean Air Act and the Clean Water Actinfluence access in several ways: first, theaccess project itself, i.e., construction and

transportation, must comply with applicablestandards; second, the mineral resource proj-ect for which access is granted must complywith the Acts before a Federal land managermay grant a permit; third, the Clean Air Actplaces stricter standards on projects in andnear certain highly protected Federal conser-vation units (although the number of suchunits in Alaska is less than commonly per-ceived and National Interest Lands legisla-tion cannot create any of the most highly pro-tected areas). NEPA requires that an environ-mental impact statement (EIS) must be pre-pared for major Federal actions significantlyaffecting the quality of the human environ-ment, and that Federal agencies consider theenvironmental effects of and possible alter-natives to a proposed action, consult withother agencies, and solicit public comment.NEPA imposes no specific environmental

Photo Cred/f: The Alaska Coa//r/on

North Slope tundra — late summer

standards or direct restraints on access tonon-Federal minerals. It does, however, exertsubstantial indirect influence since Federalland management agencies must comply withNEPA in their review of requests for rights-of-way and other permits. Applicants may berequired to pay the costs of preparing an EISif approval is determined to be a majorFederal action.

Section 4(f) of the Department of Transpor-tation Act of 1966 bars the use of Federalfunds for any transportation project that usesany land of National, State, or local signif-icance from any public park, refuge, or recre-ation area, or from any historic site unlessthe Secretary of Transportation finds thatthere is no prudent and feasible alternative tosuch use and that the proposed project in-

cludes all possible planning to minimize harmto the area involved. By restricting the ex-penditure of Federal funds, section 4(f) limitsthe availability of lands owned by Federal,State, or local governments and some private-ly owned historic sites, for transportation sys-tems which, in some instances, could be nec-essary for mineral resource development.Lands in the National Park System, the Na-tional Wildlife Refuge System, and the Na-tional Wild and Scenic Rivers System areclearly within the protections of section 4(f).Some public lands managed by the BLM andNational Forest System lands are also subjectto the restrictions of section 4(f) if the landsare actually used or proposed for park, rec-reation, wildlife protection, or historic pur-poses, or are under study for wilderness orwild and scenic rivers designation.


Section 7 of the Endangered Species Act re-quires that all Federal agencies ensure thattheir actions do not jeopardize the continuedexistence of any endangered or threatenedspecies or result in the destruction or mod-ification of a critical habitat. Compliancewith the Act requires that any agency con-sider the effects a proposed action may haveon a protected species or habitat, and consultwith the Secretary of the Interior to deter-mine whether any harm may result and whatsteps may be taken to minimize any risk. Inareas that are home to unique and endan-gered species, the Act may impose substan-tial and additional constraints on Federalland management agencies in the issuance ofrights-of-way across Federal areas. In otherareas where there are few or no endangeredspecies, the compliance requirements wouldhave a lesser effect on the actions of Federalland managers.

The Clean Air Act establishes nationalstandards to limit the presence of five com-mon air pollutants that present known risksto human health and safety. Direct Federalcontrols apply only to certain major new fa-cilities with the potential to emit large quan-tities of these pollutants; all other pollutersare regulated by the States under plans de-signed to assure that the five national stand-ards are met.

The Act imposes strict controls on the con-struction of new facilities in areas where airquality is better than the national standards,in order to prevent significant deteriorationof existing air quality. There are threeclasses of “clean air” regions: Class I areas,where minimal additional pollution is al-lowed; Class 11 areas, where moderateamounts of new pollution are permitted; andClass III areas, where pollution levels can beincreased to the national standards. TheClean Air Act Amendments of 1977 classifiedmost clean air regions, including both Federaland non-Federal lands, as Class 11. Some ex-isting Federal parks and wilderness areasare designated mandatory Class I areas (in-cluding one park and three wilderness areasin Alaska); no d-2 lands are mandatory Class I

areas. Other large national parks, monu-ments, and refuges are Class 11 areas andcannot be redesignated to Class III status.There are two such areas in Alaska. It is an-ticipated that most Alaska National InterestLands will fall into this Class 11 subcategoryon enactment of d-2 legislation. The authorityto redesignate the classification of clean airareas, with the exceptions noted above, isvested in State governments. Federal landmanagers have only an advisory role in theredesignation process.

Preconstruction review of new sources andmodification of existing sources are carriedout at the State level. There are four types ofpreconstruction review: (1) to assure themaintenance of national ambient air qualitystandards; (2) to assure compliance with ap-plicable Federal new source standards; (3) toprevent significant deterioration in clean airareas; and (4) to assure compliance with thespecial rules that apply to new sources ofpollution in areas that do not meet the na-tional standards. In the last two instances,preconstruction review may impose severecontrols on allowable new construction or,perhaps, prevent it altogether.

The Clean Air Act requires that State airpollution control agencies consult with theappropriate Federal land manager on all ap-plications for permits for major emitting facil-ities that may affect air quality in a FederalClass I area. Applicants for rights-of-wayover Federal land management system landsmust agree to comply with State and Federalair quality standards, not only in activitiesassociated with the use of the right-of-way,but also in their operations in non-Federalareas.

The Clean Water Act imposes Federal con-trols on all forms of water pollution. Every“point source” of pollution, i.e., any enter-prise that discharges pollutants into rivers,lakes, or streams through pipes, conduits,channels, and the like, is required to obtain adischarge permit that prescribes allowablelevels of pollution. Some mines are regulatedas sources. “Nonpoint sources” of pollu-


tion—including the runoff from roads andfrom agricultural, construction, and somemining activities, are regulated at the Stateand local level pursuant to local water pollu-tion control plans.

The Act establishes a series of deadlinesfor progressively more stringent controls onpoint sources of pollution. It requires theutilization of various levels of pollution con-trol technology, By 1979, all point sourcesmust be using the “best practicable controltechnology” and between 1983 and 1987 theymust begin applying the “best available tech-nology” for various classes of pollutants. TheEnvironmental Protection Agency developsguidelines on an industry-by-industry basis.

Effluent standards have been promulgatedfor some mining activities including, for ex-ample, placer mines that use gravity separa-tion to extract precious metals.

More stringent controls may be appliedwhere pollution discharges threaten Federaland State water quality standards for spe-cific waterways. An antidegradation policyprotects the water quality of streams andrivers that already have clean water. The an-tidegradation program applies to both Fed-eral and non-Federal areas. Right-of-way ap-plicants must agree to comply with Federaland State water quality standards and to ob-tain all necessary permits. This compliancerequirement not only applies to activitiesassociated with use of the right-of-way suchas road-building and bridge construction, butalso with the conduct of mining operations onnon-Federal sites.

The Coastal Zone Management Act pro-vides incentives for States to develop com-prehensive land management programs fortheir coastal areas. Participating Statesreceive Federal grants to develop and ad-minister their programs, as well as Federalaid to offset the impact of energy develop-ment activities. All eligible States havechosen to participate. To date, only two Stateprograms have been approved.

States participating in the CZMA programmust develop a plan for managing activities inthe coastal zone. The plan must include a def-inition of permissible land and water uses inthe coastal zone, proposals for protectingareas of unique, scarce, fragile, or vulner-able natural habitat, and a process to ensurethat the State adequately provides for “con-sideration of the national interest” in thesiting of certain energy and resources devel-opment facilities, including associated trans-portation systems.

Once the State has adopted a plan that isapproved by the National Oceanic and At-mospheric Administration, it has a major ef-fect on Federal activities in the coastal zone.Federal activities must be “consistent to themaximum possible extent” with the Stateplan. This provision has a fourfold effect:

1. Direct Federal activities in the coastal

2.

3.

zone, including land management poli-cies, must be consistent;

Federal development projects in the zonemust be consistent;

Applicants for Federal licenses and per-mits (such as right-of-way permits) mustsecure State certification; and

4. Applicants for Federal assistance mustinclude the views of the State manage-ment agency with their proposals.

A State plan will not be approved unlessthe State demonstrates that it has the au-thority to control land and water uses in thecoastal zone. The State may do this by directland and water use regulation, through localimplementation of State established stand-ards subject to State administrative review,or by State authority to disapprove all localland and water use regulation. Transporta- ‘tion and mining activities in the coastal zonemust comply with State coastal zone re-quirements.

The following chapters describe the re-quirements for obtaining rights-of-waythrough the major Federal land management

Ch. 3 Federal Laws Affecting Access “ 51

systems for purposes of mineral resourcedevelopment on non-Federal lands. Severallaws relating to Federal lands in Alaska arealso included as background information. Themajor Federal land planning and environmen-tal laws affecting right-of-way applicationsare also discussed. All references are cur-

rent as of May 1978, and, in some instances,more recent material has been added. Thisreport was structured as both a technicalreference for Congress in its consideration ofaccess issues in Alaska Lands legislation andas a primer on rights-of way across Federallands for mineral resource development.

.

Photo Credft The Alaska Coa//t/on

Offshore Oil Production Rig, Cook Inlet

. —

4

Federal Land ManagementSystems

— -. . .

/

Chapter 4.- FEDERAL LAND MANAGEMENT SYSTEMS “

Page

Public Lands ....... ...... o..... o 5 5The BLM Organic Act . . . . . . . . . . . 56Purposes for Which Rights-of-Way

May Be Granted. . . . . . . . . . . . . . 56Information Requirements . . . . . . . 57Environmental Impact Assessment. 57Extent of Rights-of-Way . . . . . . . . . . 58Right-o f-Way Fees. . . . . . . . . . . . . . 58Financing Transportation Projects. 58Terms and Conditions . . . . . . . . . . . 59Suspension or Termination . . . . . . . 60Other Conditions . . . . . . . . . . . . . . . 60BLM Wilderness Study . . . . . . . . . . 60Existing BLM Right-of-Way

Regulations . . . . . . . . . . . . . . . . . 63Footnote References for Public Lands 64National Park System . . . . . . . . . . . . . 67

General Authority for Rights-of-Way. . . . . . . . . . . . . . . . . . . . . . . 67

Statutes Providing forRights-of-WayThroughNationalParks . . . 69

Applications for Rights-of-Way. . . . 71Rights-of-Way for Highways. . . . . . 71

Footnote References for NationalPark System. . . . . . . . . ● . . . . . . . . . 72

National Wildlife Refuge System. . . . 73Rights-of-Way Under Section 4 of

the Refuge Administration Act . . 74Rights-of-Way Under Other

Statutes . . . . . . . . . . . . . . . . . . . . 74Rights-of-Way for Transportation

Systems . . . . . . . . . . . . . . . . . . . . 75Applications for Rights-of-Way. . . . 75

Footnote References for NationalWildlife Refuge System . . . . . . . . . 77

National Forest System. . . . . . . . . . . . 78The BLM Organic Act. . . . . . . . . . . 78The National Forest Transportation

System. . . . . . . . . . . . . . . . . . . . . 79

Page

Conflict Between Access ProvisionsRoadless Area Review. . . . . . . . . . .

Footnote References for NationalForest System ●

National Wild and Scenic RiversSystem ● e O m * * e Administration of the System . . . . .River Studies . . . . . . . . . . . . . , . . . .Protections Afforded Wild and

Scenic Rivers. . . . . . . . . . . . . . . .Rights-of-Way . . . . . . . . . . . . . . . . .

Footnote References for NationalWild and Scenic Rivers System . . .

National Wilderness PreservationSystem . . . . . . . . . . . . . . . . . . . . . . .Designation of Wilderness Areas. .Activities in Wilderness Areas. . . .Park Wilderness . . . . . . . . . . . . . . .Wildlife Refuge Wilderness . . . . . .BLM Wilderness . . . . . . . . . . . . . . .Forest Wilderness. . . . . . . . . . . . . .Wild and Scenic Rivers WildernessManagement of Wilderness Study

Areas. . . . . . . . . . . . . . . . . . . . . .Footnote References for National

Wilderness Preservation System. .

8081

81

838384

8587

88

8990919494959596

96

97

TABLES

Page2. Component Rivers of the National

Wild and Scenic Rivers System. . 843. Rivers Designated as Potential

Additions to the National Wildand Scenic Rivers System . . . . . . 85

4. Wilderness Areas in Alaska... . . . 89

Federal Land ManagementSystems

The Bureau of Land Management (BLM) ofthe Department of the Interior administersthe Nation’s public lands—those federallycontrolled lands that have not been placed inany other specific land management system.As defined in the Federal Land Policy andManagement Act of 1976:1

The term “public lands” means any landand interest in land owned by the UnitedStates within the several States and admin-istered by the Secretary of the Interiorthrough the Bureau of Land Management,without regard to how the United States ac-quired ownership, except—

1. lands located on the Outer ContinentalShelf; and

2. lands held for the benefit of Indians,Aleuts, and Eskimos, ’

Traditionally, BLM lands have been the leastrestricted and regulated Federal lands, andthe most open to development and use.

The BLM manages about 60 percent (470million acres) of all federally owned lands;more than half of this area (over 295 millionacres) is in the State of Alaska.3 The BLM hasinterim jurisdiction over public lands inAlaska that have been selected by AlaskaNatives under the Alaska Native Claims Set-tlement Act4 (ANCSA) and lands selected bythe State under provisions of the AlaskaStatehood Act.5 It also manages lands cur-

Note: Footnotes for this section appear on pp. 64-66,

LANDS

rently withdrawn for potential designation aspart of national conservation systems undersection 17(d)(2) of ANCSA. On final congres-sional disposition of the (d)(2) national in-terest lands, management of substantial acre-age will be transferred to the National ParkService, the U.S. Fish and Wildlife Service,and the Forest Service.6

Final conveyances of Native and Stateselections will further reduce acreage underBLM management.7 Nevertheless, the BLMwill still have jurisdiction over millions ofacres of Alaska land. At present, all publiclands in Alaska that have not been selectedby Natives or the State or withdrawn for d-2consideration by Congress have been with-drawn for classification under section17(d)(l) of ANCSA. Scattered Native andState selections have been made in mineral-ized areas surrounded by these so-called d-llands.8

BLM policies will influence decisions asso-ciated with mineral resource development onnon-Federal lands in Alaska. Until legislativedisposition of d-2 lands and final conveyanceof State and Native selections, the BLM willadminister more than 75 percent of all landsin the State. After d-2 designations and finalland conveyances, it is likely that more than100 million acres will remain under BLM ad-ministration. In many regions, access to non-

55


Federal lands for mineral resource develop-ment will involve transportation over and useof BLM lands.

BLM ORGANIC ACT

The Federal Land Policy and ManagementAct of 1976,9 commonly referred to as theBLM Organic Act, restructured the publicland laws. It gives the BLM comprehensiveand explicit authority to manage public landsand resources, and repeals many archaic andoverlapping statutes governing public landwithdrawal, disposal, and rights-of-way. TitleV of the BLM Organic Act sets forth right-of-way authorization for public lands adminis-tered by the BLM and for National Forest Sys-tem lands.10 The term “right-of-way” as usedin the Act includes “an easement, lease, per-mit, or license to occupy, use, or traversepublic lands” for the purposes listed.ll Sev-eral sections of the BLM Organic Act bear onthe issue of access; of principal importancefor access are section 302, which is the gen-eral management authority for public lands;12

sections 501-511 (Title V), the Right-of-Wayauthorization; 13 and section 603, BLM wilder-ness review.14

Until regulations and directives have beenissued under the authority of the BLM Or-ganic Act, the old regulations remain in ef-fect.15 These regulations also specify thegeneral application procedure for rights-of-way and easements over lands administeredby the Fish and Wildlife Service and the ParkService. l6

Section 302 of the BLM Organic Act17

authorizes the Secretary of the Interior toregulate the use, occupancy, and develop-ment of public lands by several means, in-cluding easements, permits, licenses, andleases. 18 The Secretary is directed to managethe public lands according to land use plansdeveloped under section 20219 and to take ac-tion necessary to prevent unnecessary or un-due degradation of the land. The Secretarymay permit Federal departments and agen-cies to occupy and develop public lands onlyunder the right-of-way provisions of section

507 20 or under the withdrawal provisions ofsection 204. 21 However, if proposed Federaluse and development are “similar or closelyrelated to” programs of the Secretary for thelands involved, he may enter into cooperativeagreements under section 307(b).22

Enforcement of regulations—a seriousproblem under earlier laws—is enhanced bymandatory provisions in all permits. All in-struments providing for use or occupancy ofpublic lands must contain a provision allow-ing revocation after notice and hearing forviolation of any terms or conditions includingcompliance with the applicable State or Fed-eral air or water quality standards or imple-mentation plans .23

PURPOSES FOR WHICHRIGHTS-OF-WAY MAY BE GRANTED

Title V of the BLM Organic Act authorizesthe Secretary of the Interior “to grant, issue,or renew rights-of-way over, upon, under, orthrough” public lands, except lands desig-nated as wilderness. 24 The purposes forwhich a right-of-way may be issued include:

1.

2.

3.

4.

Reservoirs, canals, ditches, flumes, lat-erals, pipes, pipelines, tunnels, and oth-er facilities and systems for the im-poundment, storage, transportation, ordistribution of water;

Pipelines and other systems for thetransportation or distribution of liquidsand gases, other than water and otherthan oil, natural gas, synthetic liquid orgaseous fuels, or any refined productsproduced therefrom, and for storageand terminal facilities in connectiontherewith;

Pipelines, slurry and emulsion systems,and conveyor belts for transportationand distribution of solid materials, andfacilities for the storage of such ma-terials in connection therewith;

Systems for generation, transmission,and distribution of electric energy, ex-

Ch. 4 Federal Land Management Systems ● 57

5.

6.

7.

cept that the applicant shall also complywith all applicable requirements of theFederal Power Commission under theFederal Power Act of 1935 (49 Stat. 847;16 U.S.C. 791);

Systems for transmission or reception ofradio, television, telephone, telegraph,and other electronic signals, and othermeans of communication;

Roads, trails, highways, railroads, ca-nals, tunnels, tramways, airways, live-stock driveways, or other means oftransportation except where such facil-ities are constructed and maintained inconnection with commercial recreationfacilities on lands in the National ForestSystem; or

Such other necessary transportation orother systems or facilities which are inthe public interest and which requirerights-of-way over, upon, under, orthrough such lands.25

INFORMATION REQUIREMENTS

An applicant for a right-of-way is requiredto submit and disclose plans, contracts,agreements, and other information reason-ably related to the use or intended use of theright-of-way. 26 In addition to any other infor-mation necessary to the determination ofwhether the right-of-way should be issuedand what terms and conditions it should con-tain, the Secretary may require a statementof the effect on competition of the grant ofright-of-way .27 If the applicant is a partner-ship, corporation, association, or other bus-iness entity, information concerning the iden-tity of the participants and the financialstructure and control of the entity must bedisclosed. 28

ENVIRONMENTAL IMPACTASSESSMENT

If the Secretary determines that the use ofa 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-cant is required to submit a plan for construc-tion, operation, and rehabilitation for theright-of-way. 29 If, in addition, the Secretarydetermines that the grant of a right-of-way isa major Federal action “significantly affect-ing the quality of the human environment,”30

the agency must prepare an environmentalimpact statement (EIS) under the National En-vironmental Policy Act (NEPA).31 The appli-cant may be required to bear the costs of theEIS preparation as part of the costs of admin-istration. 32

EXTENT OF RIGHTS= OF= WAY

The right-of-way is limited to the groundsoccupied by the facilities for which the grantwas issued and that are necessary for theoperation, maintenance, or safety of the proj-ect and will do no unnecessary damage to theenvironment. 33 The temporary use of addi-tional land may be authorized as necessaryfor construction, operation, maintenance, ortermination of the project, or for access pur-poses.34 The right-of-way is granted for areasonable term considering the cost of thefacility, its useful life, and any public purposeit serves .35 The right-of-way specifies whetherit is renewable and the terms and conditionsof renewal.36

The Secretary is authorized to issue regu-lations for rights-of-way.37 These regulationsmay be applied to any existing rights-of-wayrenewed under the new BLM Act.38 The hold-er of a right-of-way may use mineral, timber,or vegetative resources of the right-of-waylands in connection with construction orother purposes only if authorization is ob-tained under applicable laws.39

RIGHT- OF- WAY FEES

The holder must pay annually, in advance,the fair market value of the right-of-way.40

When the value is less than $100, the Sec-retary may require advance payment formore than 1 year at a time.41 The holder or ap-

plicant may be required to reimburse theagency for “all reasonable administrativeand other costs incurred in processing the ap-plication for such right-of-way and in the in-spection and monitoring of construction, op-eration, and termination of the facility pur-suant to such right-of-way.”42 The require-ment of rental payment and reimbursementof costs may be waived if a reciprocal right-of-way is granted to the United States by theholder in connection with a cooperative cost-share program.43 Federal, State, or local gov-ernment units; nonprofit associations; non-profit corporations that are not owned or con-trolled by profitmaking corporations or busi-ness enterprises; holders who provide at noor reduced cost a benefit to the public or tothe programs of the Secretary; or holderswho already are compensating the UnitedStates for authorized use or occupancy ofFederal land, may be granted a right-of-wayat a lesser charge, or no charge, as the Sec-retary finds to be equitable and in the publicinterest. 44 Assignments of free or reducedrental rights-of-way must be approved by theSecretary .45 When appropriate, the holdermay be required to furnish a bond or othersatisfactory security to secure any or all ofthe obligations imposed upon him by statute,regulations, rules, or the terms or conditionsof a specific right-of-way.46 The Secretarymay issue or renew a right-of-way only whenhe is satisfied that the applicant has the nec-essary technical and financial capability toconstruct the project in accordance with therequirements of the Act.47

FINANCING TRANSPORTATIONPROJECTS

The BLM Organic Act provides several ar-rangements for financing transportation andother projects on public lands. The Secretaryis authorized to acquire or construct roadswithin or near the public lands that will per-mit maximum economy in timber harvestingin the area and at the same time meet re-quirements for the protection, development,and management of the lands for utilization


of other resources.48 Financing for thesetimber roads near or on public lands may beaccomplished (a) from appropriated Depart-ment of the Interior funds, (b) by require-ments on purchasers of timber and other pub-lic land resources, (c) by cooperative financ-ing agreements with Federal, State, local, orprivate agencies, or persons, or (d) by a com-bination of these three methods.49 However,when roads are required to meet higher tech-nical standards than necessary for timber orresource removal, the purchasers of timberand resources will not be required to bear thecosts necessary to meet the higher standardsunless the resource is offered under the con-dition that a road of that specified standardbe built.50 The Secretary may make such ar-rangements as necessary to this end. The Sec-retary may also require the users of roads,trails, lands, or other facilities administeredby the Bureau to maintain the land or facil-ities in a satisfactory condition “commen-surate with use requirements of each.”51

Costs assessed to each user must be propor-tionate to total use. The Secretary may re-quire reconstruction of existing roads or fa-cilities when necessary to accommodate ause, but if the reconstruction or maintenancecannot be provided by the user or is imprac-tical, the Secretary may require a deposit inan amount sufficient to cover a proportionateshare of costs.52

TERMS AND CONDITIONS

In addition to the requirements describedabove, each right-of-way must contain cer-tain mandatory terms and conditions that arenecessary to:

I.

II.

III.

Carry out the purposes of the BLM Actand related rules and regulations;

Protect the environment and minimizedamage to scenic and esthetic values,and to fish and wildlife habitats;

Require compliance with air and waterquality standards established pursuantto Federal or State laws; and

IV.

Each

Require compliance with State stand-ards for public health and safety, envi-ronmental protection, and siting, con-struction, operation, and maintenanceof rights-of-way for similar purposes, ifthose standards are more stringentthan Federal standards .53

right-of-way must also contain any spe-cific additional conditions that the Secretarydeems necessary for:

1.

2.

3.

4.

5.

6.

Protection of Federal property and eco-nomic interest;

Efficient management of the lands sub-ject to and adjacent to the right-of-way,and protection of other lawful users ofthe lands involved;

Protection of life and property;

Protection of fish, wildlife, and otherbiotic resources of the area for subsist-ence users;

Location of rights-of-way along routesthat will cause the least damage to theenvironment taking into considerationfeasibility and other relevant factors;and

Protection of the public interest in landstraversed by theright-of-way or adja-cent thereto. 54

In order to minimize adverse environmentalimpacts and the proliferation of rights-of-way, the BLM Act requires the utilization ofrights-of-way in common to the extent prac-tical. 55 Each right-of-way permit must containa provision reserving to the Secretary theright to grant additional rights-of-way or per-mits for compatible uses on or adjacent to theoriginal right-of-way.56 The Secretary maydesignate right-of-way corridors and requirethat all rights-of-way be confined to that cor-ridor. In making this designation the Secre-tary is required to consider National andState land use policies, environmental qual-ity, economic efficiency, national security,safety, and good engineering and technologi-cal factors.57 The Secretary must issue regu-lations containing the criteria and proce-


dures he will use in designating such corri-dors. Existing utility and transportation corri-dors may be designated for such uses underthis subsection without further review.58 Thisprovision allows expanded multipurpose useof existing criteria.

SUSPENSION OR TERMINATION

A right-of-way may be suspended or ter-minated for abandonment59 or noncompliancewith statutory requirements or with the ap-plicable conditions, rules, or regulations forrights-of-way. 60 Holders of a right-of-waymust receive due notice prior to a finding ofabandonment or noncompliance. Holders ofan easement are entitled to an administrativeproceeding under section 554 of Title 5 of theUnited States Code before termination or sus-pension.6l

Existing rights-of-way or rights-of-use arenot terminated by the BLM Act, but with con-sent of the holder, they may be canceled andreissued under the terms and conditions of Ti-tle V.62 When the Secretary issues a right-of-way for railroad and communications facil-ities in a realinement of the railroad, he mayrequire that the applicant relinquish any ex-isting right-of-way if he finds that the require-ment is in the public interest, and the landsinvolved are not within an incorporated com-munity and are of equal values. He may, inlieu of the provisions of Title V, provide forthe same terms and conditions in the newright-of-way with respect to rental, duration,and nature of interest in the lands granted, aswere applied to the relinquished right-of-way.Action on such a trade is to be made within 6months of the receipt of all information re-quired by Title V.63

OTHER CONDITIONS

When an applicant is before Federal de-partments or agencies, other than the Depart-ment of the Interior or the Department ofAgriculture, seeking a license, certificate, orother authority for a project that involves a

right-of-way over, upon, or through publiclands or national forests, the applicant mustsimultaneously apply to the appropriate Sec-retary for permission to use public lands andprovide all information submitted to the otherdepartment or agency.64 After enactment ofthe BLM Organic Act, all rights-of-waysought over public lands or national forests,for purposes listed in section 501 must beissued in accordance with the requirementsof Title V. This provision is a direct limitationon any other laws not repealed by the Actthat would grant a right-of-way over publiclands. 65

Federal departments and agencies may ob-tain use of public lands under the provisionsof Title V subject to such terms and condi-tions as the Secretary may impose. 66 Any ac-tion to terminate or limit the use of a right-of-way reserved for use by a Federal depart-ment or agency must be done with the consentof the head of the department or agency.67

BLM WILDERNESS STUDY

Section 603 of the Act provides for wil-derness study of certain BLM lands.68 Whenthe Wilderness Act was passed in 1964, thePark Service, the Fish and Wildlife Service,and the Forest Service were all required toinventory lands under their control to deter-mine whether any meet the wilderness re-quirements set forth in section 2(c) of thatAct.69 BLM lands were not affected.70 Section603 provides the framework for a survey ofalmost all BLM lands to determine if anyshould be considered for inclusion in the Na-tional Wilderness Preservation System.

Section 201(a) of the Organic Act requiresa complete inventory of public lands, in-cluding their resource and other values, withpriority given to areas of “critical envi-ronmental concern."71 Within 15 years of theeffective date of the Act (October 21, 1976),the Secretary of the Interior must review allroadless areas of over 5,000 acres and allroadless islands72 that were identified in thesection 201 inventory as having wilderness

Ch. 4 Federal Land Management Systems .61

characteristics; he must then report to thePresident on their suitability for preservationas wilderness. All areas formally identifiedby the BLM as “natural” or “primitive”areas prior to November 1, 1975, must be re-viewed, and a wilderness recommendationmade to the President by July 1, 1980.73

Before recommendations to the Presidentcan be made, the Geological Survey and theBureau of Mines must conduct a survey todetermine any mineral values of a specificarea prior to its recommendation for wil-derness designation.74 Review of these areaswill be conducted under provisions of section3(d) of the Wilderness Act.75 The President isrequired to advise Congress of his recommen-dation on the wilderness status of each areawithin 2 years of receipt of each report fromthe Secretary .7’

BLM lands that are designated by Con-gress as components of the National Wilder-ness Preservation System will be subject toprovisions of the Wilderness Act applicableto national forest wilderness areas.77 Wil-derness designation will remove the authorityof the Secretary of the Interior to grantrights-of-way under Title V.78 However, BLMwilderness areas would be subject to thelimited provision for presidentially grantednational interest exceptions that is applicableto national forest wilderness areas.79

While the status of wilderness lands isclearly defined, there is some uncertaintyabout lands that are being reviewed for wil-derness characteristics and lands that havebeen placed in “wilderness study” by BLM.80

Section 603(c) requires that areas under re-view for potential wilderness designation bemanaged “in a reamer so as not to impair thesuitability of such areas for preservation aswilderness. ‘*1 However, this protective man-agement is subject to the continuation of “ex-isting mining and grazing uses and mineralleasing in the manner and degree in whichthe same was being conducted on the date ofapproval of this Act. ’ ’82 This implies that someexisting activities are allowed to continue.But, immediately following that sentence is

the proviso that, “in managing the publiclands, the Secretary shall by regulation orotherwise, take any action required to pre-vent unnecessary or undue degradation of thelands and their resources or to provide envi-ronmental protection."83 This protection doesnot extend to withdrawal from appropriationunder the mining laws; the Secretary maymake such withdrawals only “for reasonsother than preservation of this wildernesscharacter." 84

With few exceptions, all 470 million acresof land managed by the BLM initially are sub-ject to the provisions of section 603. In orderto avoid bringing all activities on BLM land toa halt, the Bureau has adopted a two-phasepolicy for identifying and protecting landswith wilderness potential. The first phase is awilderness inventory:

Every resource managed by the BLM hasan inventory. (For purposes of wilderness re-view, “inventory’ means the examinationand display of areas on maps and in narra-tives that are considered to be (a) roadless,(b) have wilderness characteristics, and (c)are 5,000 acres or more, or of sufficient sizeto make wilderness management practical,or are public land islands.)85

BLM plans to complete an accelerated wil-derness inventory by July 1980.86 The inven-tory will emphasize roadless areas and road-less islands in the 11 Western States. Accord-ing to the draft proposal, “Alaska inventorywill be postponed until Native claims landtenure has been finalized.”87

It is not clear what level of protection willbe afforded lands during the wilderness re-view. An Organic Act directive states that allenvironmental assessment reports and envi-ronmental statements must include a discus-sion of potential wilderness resources thatmight be affected by a proposed action.88

However, it gives no indication of what ac-tions should be taken in response to threats towilderness potential. The draft wildernesspolicy document states:

During the wilderness review, multiple useactivities [including access) will continue

62 w Analysis of Laws Governing Access Across Federal Lands

with advanced planning to protect the exist-ing wilderness designation potential of areasor islands. Environmental assessment rec-ords or environmental statements preparedon activities will include discussion of thewilderness resource where appropriate. Thediscussion will cover values per section 2(a)and (c) of the Wilderness Act of September 3,1964 (Public Law 88-577). Environmentalcontrols or modifications in proposed actionswill be made if necessary to protect wilder-ness values.89

At the end of the wilderness inventory,those roadless areas with wilderness charac-teristics will be designated “wilderness studyareas:”

A roadless area which has been found tohave wilderness characteristics (thus havingthe potential of being included in the Na-tional Wilderness System), and which will besubjected to intensive analysis in the Bu-reau’s planning system, and public review todetermine wilderness suitability, and is notyet the subject of a congressional decisionregarding its designation as wilderness.90

It is reasonable to expect that “wildernessstudy areas, ” as opposed to areas merelyunder review, will receive the full scope ofsection 603(c) protections of their wildernesscharacteristics. Preliminary views aboutsome of the permissible limitations have beenspelled out in a memorandum issued by theDeputy Solicitor.91 On the issue of access toprivate lands, the memorandum stated:

In general, access across public lands canonly be granted under Title V of FLPMA, andthe granting of this right-of-way is discre-tionary with the Secretary. Section 603 limitsthe discretionary authority of the Secretaryby allowing him to grant access only when itwill not impair the suitability of the areaunder review for wilderness designation. Seealso section 302, which provides, in pertinentpart:

Except as provided in . . . section 603 . . .and in the last sentence of this paragraph, noprovision of this section or any other sectionof this Act shall in any way amend the Min-ing Law of 1872 or impair the rights of anylocators or claims under the Act, including,but not limited to, rights of ingress and

egress. In managing the public lands, theSecretary shall, by regulation or otherwise,take any action necessary to prevent unnec-essary or undue degradation of the lands.

Currently, the Solicitor’s Office is prepar-ing a memorandum involving the Secretary’sauthority to regulate access to and from min-ing claims. In regard to existing accessacross wilderness study lands to privateproperty, it is my opinion that any legal opin-ion is best given after applying each sepa-rate factual situation to the criteria of sec-tion 603.92

The gist of the opinion is that the Secretaryhas full discretion to deny, and might even beforced to do so by section 603, requests foraccess from all persons except locators un-der the Mining Law, who he could regulateunder the provisions of section 302. Onlythree existing uses are specifically protectedby the section—mining, grazing, and mineralleasing—there is no mention of existing ac-cess. Of these, only mining could conceivablyoccur off public lands and receive protection,because patenting a mining claim would takeit out of Federal lands while preserving rightsto ingress and egress.

The opinion also raises the point that, insome instances, land uses might be under amore stringent system of controls during thereview period than after congressional desig-nation as wilderness.93 Access to privatelands may prove to be one of these instances.During the review period, access decisionsare governed solely by Title V as affected bysection 603. Section 603 requires manage-ment “so as not to impair the suitability ofsuch areas for preservation as wilderness.”94

After designation as wilderness, section4(d)(4) of the Wilderness Act would apply,allowing the President to grant a right-of-way:

Within wilderness areas in the nationalforests designated by this Act, (1) the Presi-dent may, within a specific area and in ac-cordance with such regulations as he maydeem desirable, authorize prospecting forwater resources, the establishment andmaintenance of reservoirs, water conserva-tion works, power projects, transmission


lines, and other facilities needed in the pub-lic interest, including the road constructionand maintenance essential to developmentand use thereof, upon his determination thatsuch use or uses in the specific area will bet-ter serve the interests of the United Statesand the people thereof than will its de-nial . . .95

EXISTING BLM RIGHT-OF-WAYREGULATIONS

Existing BLM right-of-way regulations,issued under the general authority of theDepartment of the Interior to manage thepublic lands,96 provide the general institu-tional framework for the application andreview process for rights-of-way on landsunder BLM jurisdiction. The Fish and Wild-life Service and Park Service follow the BLMregulations, however, application is madedirectly to the managing agency.97 Theseregulations cover all non-Federal applicantsseeking rights-of-way, including State andlocal governments; Federal agencies nowmay obtain rights-of-way under the provi-sions of section 507 of the BLM Organic Act.98

An applicant must file an application withthe BLM listing the statute authorizing theright-of-way, the primary purpose for whichit is sought, and the date on which any priorunauthorized use began.99 The applicantagrees to accept the terms and conditions setforth in the regulations100 and deposits anonreturnable fee based on the length of theright-of-way. 101 A map of the area indicatingthe extent of the right-of-way must be in-cluded with the application along with dataabout the planned developments projects.102

Information concerning citizenship,103 disclo-sure of control, and financial status of busi-ness entities is required. 104

The applicant must reimburse the Govern-ment for administrative costs incurred inprocessing the application including prepara-tion of reports and statements required underNEPA if the approval of the application isdetermined to be a major Federal action sig-nificantly affecting the environment. ’05 Upon

receipt of the application, an estimate ismade of anticipated administrative costs. Ifthe costs are greater than the initial paymentby an amount exceeding the cost of maintain-ing actual cost records for the application,periodic payments of costs may be re-quested. 106 If the application is rejected orwithdrawn, the applicant is assessed thecosts incurred to that point.107

In order to assist actual and potential ap-plicants, the regulations provide that a per-son may request, prior to submitting an ap-plication, a nonbinding estimate of the an-ticipated administrative and other costs ex-pected to be incurred.108 On approval of theapplication, the holder must make paymentbased on the length of right-of-way and mustreimburse the agency for costs of monitoringthe construction, operation, maintenance,and termination of the right-of-way and forthe costs of protecting and rehabilitating thelands involved.109 A bond or other securitymay be required to assure payment of costsor satisfaction of the conditions of a right-of-way.110 The charge for use and occupancy of aright-of-way is set by the regulations at thefair market value of the permit, right-of-way,or easement as determined by the appropri-ate officer, but not less than $25 per 5-yearperiod.111

The terms and conditions set forth in theregulations generally provide for:

1.

2.

3.

Compliance with Federal and State lawsand regulations applicable to the landsor right-of-way project.112

Compliance with regulations and direc-tives of the supervising officer of theagency with respect to clearing and re-storing land, public safety, protection ofproperty and environmental values, fireprevention, and payment for the use oftimber or mineral resources of the right-of-way. 113

Acceptance of any additional specialconditions necessary to make the grantof a right-of-way compatible with thepublic interest.114.


4.

5.

Acceptance of the condition that use ofthe right-of-way will not “unduly inter-fere with management or administrationof lands affected by it, ” and that theright-of-way may be modified or termi-nated by the Secretary if its use conflictswith other works constructed by author-ity of the United States. 115

Agreement to pay for all damage to U.S.property and ‘to indemnify the UnitedStates for any liability for damages forinjury to property or person arising fromuse of the right-of-way. ’*G

The right-of-way granted under these regu-lations, unless otherwise provided by statute,does not convey a property interest in thelands involved, only a right to use the publiclands for a specific purpose.117 The right-of-way may be terminated by a specific order ofcancellation for noncompliance with condi-tions of the grant, ’*8 non-use, abandonment, **gor failure to proceed with timely constructionof the project for which the right-of-way wasissued, 120 or when use of the right-of-way con-flicts with other authorized uses,121 or undulyinterferes with the management and admin-istration of the affected lands. *22

FOOTNOTE REFERENCES FOR PUBLIC LANDS

‘Public Law 94-579, 90 Stat. 2743, 43 U.S.C. 1701 etseq. (1977 supp.).

243 U. S.C. 1702(e). Public lands are divided intopublic domain lands which have never left Federalownership, and acquired lands which are lands inFederal ownership which are not public domain andhave been obtained by the Government through pur-chase, condemnation, gift, or exchange. “Lands” in-cludes all interests in land—such as surface owner-ship, mineral rights, timber rights, and easements.

3Department of the Interior, Bureau of Land Manage-ment, Public Land Statistics 1976, pp. 20-21.

‘Public Law 92-203,85 Stat. 688 (1971).‘Public Law 85-508, 72 Stat. 339 (1958), as amended

77 Stat. 223 (1963),“Exact acreages will be determined by Congress.7Conveyance of Native selections is now expected to

take until 1981 or beyond. See testimony of Guy Martin,Hearings Before Subcommittee on General Oversightand Alaska Lands of House Committee on Interior andinsular Affairs, 95th Cong., 1st sess., July 21, 1977.

‘See maps of land status and d-2 proposals in OTAworking paper by John W. Whitney and Dennis Bryan,Assessment of Transportation Access Requirements forMinerals Exp~oration and Mine Development and Oper-ation in Alaska, in Analysis of Laws Governing AccessAcross Federal Lands: Options for Access in Alaska,Volume 11, Working Papers (OTA-M-76).

’43 U.S.C. 1701 et seq.’043 U.S.C. 1761-1771.’143 U.S.C. 1702(f),’243 U.S.C. 1732.1343 U.S,C. 1761-1777.1443 U.S.C. 1782.15 Section 310 of the Act, 43 U.S.C. 1740, requires that

the Secretary promulgate rules and regulations imple-

menting the Act in accordance with the provisions ofthe Administrative Procedure Act. The last sentence ofthe section states:

Prior to the promulgation of such rules andregulations, such lands shall be administeredunder existing rules and regulations concerningsuch lands to the extent practical.

The Bureau has adopted a policy of issuing Organic ActDirectives (OADS], approved by its FLPMA Policy Com-mittee, to provide guidelines for carrying out specificactivities affected by the Organic Act prior to the com-pletion of formal rulemaking, BLM, The Federal LandManagement Policy Act: An Interim Report—Oct. 21,1976 to June 30, 1977, 1977, p. 7.

1’43 CFR Part 2800, Regulations for Fish and WildlifeRefuges are also found at 50 CFR 29.

’743 U.S.C. 1732.1843 u.S.C. 1732(b).’943 U.S. C. 1712.2043 U.S.C. 1767.Z143 u.S.C. 1714(b).

2243 U.S.C. 1737(b), Section 302(b) states in part:“Provided, that unless otherwise provided for by law,the Secretary may permit Federal departments andagencies to use, occupy, and develop public lands onlythrough rights-of-way under section 507 of this Act,withdrawals under section 204 of this Act and, wherethe proposed use and development are similar or close-ly related to the programs of the Secretary for thepublic lands involved, cooperative agreements undersubsection (b) of section 307 of this Act. ”

2343 UOS. C. 1732(c).2“43 U.S.C. 1761(a).z51d.2s43 u.s.c. 1761(b)(l).


z71do

2843 u.s.j’. 17 6 1 ( b ) ( 2 ) .2943 U.S.C. 1764(d). OAD 76-15, Dec. 14, 1976, supra,

note 15, requires that applications indicate whether aright-of-way will have any impact on roadless areas ofmore than 5,OOO acres or “areas of critical concern. ”Another directive, OAD 7629, Mar. 15, 1977, requiresall environmental assessment reports to discuss im-pacts on potential wilderness. See discussion of section603 of the Act below.

3042 U.S.C. 4332(2)(C).3142 U,S. C, 4321 et seq. See the discussion Of NEpA in

this report.3243 U.S.C. 1764(g), See also, existing BLM right-of-

way regulations at 43 CFR 2800.3’43 U.S.C. 1764(a).“Id.3543 U.S.C. 1764(b).“Id.3743 U.S.C. 1764(e).381d.3943 U.S, C. 1764(f).’043 U.S.C. 1764(g).“Id.“Id,“Id.“Id,“Id.4843 U,S.C. 1764(i).4743 U.S.C. 1764(j).4843 U.S.C. 1762(a).qgId,5oId.

5143 U.S.C. 1762(c).‘zId.5343 U.S. C. 1765(a).5443 U.S.C. 1765(b).5543 U.S. C. 1763.561d<

571d.581d,59A “rebuttable presumption of abandonment” arises

when the holder fails to use the right-of-way for thepurpose for which it was granted for a continuous 5-year period, 43 U.S,C. 1766.

’43 U.S. C. 1766.“]This distinction between an easement and a right-

of-way is not explained in the BLM Act. See Morrison,“Rights-of-Way on Federally Owned Lands: A JourneyThrough the Statutes by Way of the Federal Land Poli-cy and Management Act of 1976, ” 9 TransportationLaw Journal, 97,103 [1977).

5243 U.S.C. 1769(a).’343 U.S.C. 1769[b).“43 U.s.c. 1771$EJ543 U.S. C, 1770(a). Section 28 of the Mineral Leasing

Act, 30 U.S.C. 185, relating to oil and gas pipelines, andthe Federal Power Act, 16 U.S.C. 791-825, relating topipelines and water projects, are not of great impor-tance here; but both provide additional authorization

for rights-of-way over public lands. See Morrison,supra, note 61, at 105-109.

’43 U.S.C. 1767(a).8743 U.S.C. 1767(b).’43 U.S.C. 1782. Lands covered by the Act of August

28, 1937, 43 U.S,C. l181(a) to l181(j) and the Act ofMay 24, 1939, 50 Stat, 753, are not affected by this pro-vision, see section 701(b). The Bureau has yet to issueany rules regarding the Wilderness Study. Current pol-icy regarding the study is contained in the followingdocuments: BLM, Draft Proposed Wilderness Policyand Review Procedure, Feb. 27, 1978 (Draft); Office ofthe Solicitor, Application of Mining and Grazing Lawsto Areas Under Review for Inclusion into WildernessSystem: Section 603, Federal Land Policy and Manage-ment Act of 1976, Jan. 8, 1978 (Opinion), and the follow-ing Organic Act Directives: OAD 76-15, Dec. 14, 1976;OAD 77-21, Feb. 16, 1977; and OAD 77-29, Mar. 15,1977.

6gWilderness Act, Public Law 88-577, 78 Stat. 89,Sept. 3, 1974, 16 U.S.C. 1131 et seq.

TOThe Bureau established two land classificationcategories—primitive areas and natural areas—inwhich use and activity were severely restricted, 43 CFR6221 (primitive areas) and 43 CFR 6225 (natural areas).The criteria for selection were similar to those used forwilderness. There are 11 primitive areas containing234,000 acres and 44 natural areas containing 271,000acres. See Draft, pp. 15-16; supra, note 68.

7]43 U.S.C. 1711(a). “Areas of critical environmentalconcern’ are defined as: “areas within the publiclands where special management attention is required(when such areas are developed or used or where nodevelopment is required) to protect and prevent ir-reparable damage to important historic, cultural, orscenic values, fish and wildlife resources or othernatural systems or processes, or to protect life andsafety from natural hazards. ” 43 U.S. C. 1702[a).

72BLM has formulated the following definitions of thekey terms “public land island” (equivalent to roadlessisland), “road,” and “roadless area. ” Draft, pp. 9, 10;supra, note 68:

Public Land Island: A body of land above the or-dinary high-water elevation of any meanderablebody of water, except those islands formed in navi-gable bodies of water after the date of admissionof the State into the Union.

Road: For the purpose of the wilderness inven-tory, a road is defined as and must meet all of thefollowing: An access route that has been improvedand maintained by using hand or power machineryor tools to insure relatively regular and continuoususe. A way maintained solely by the passage of ve-hicles does not constitute a road.

Words and phrases used in the above definitionof “road” are defined as: Improved and Main-tained: Where actions have been and will continueto be directed to physically keep the road open totraffic. Relatively regular and continuous use: Useby vehicles having four or more wheels that has


occurred and will continue to occur on a recurringbasis, for a predetermined, planned, or intendedpurpose. (An example would be access for equip-ment to maintain a stock water tank, Casual orrandom use by off-road vehicles or recreationistsdoes not qualify,)

Roadless Area: That area bounded by a roadusing the edge of the physical change that createsthe road or the inside edge of the right-of-way as aboundary.7343 U.S.C. 1782(a),“Id.751d. Section 3(d] of the Wilderness Act is found at 16

U.S.C. l132(d).7643 U,S.C. 1782(b).7743 U.S.C. 1782(c).7843 U.S.C. 1761(a).7’16 U.S.C, l133(d)(4),Vhe Act discusses protective actions the Secretary

may take “during the period of review of such areasand until Congress has determined otherwise. ” 43U,S.C. 1782(c). BLM policy, as reflected in the Draft, in-dicates a two-step process involving a wilderness in-ventory and wilderness study of areas selected fromthat inventory, see text accompanying notes 85-90, TheBLM review process indicates that much importance isplaced on making early “negative declarations” aboutareas that should not be subject to section 603 protec-tion. Draft, p. 11; supra, note 68.

8143 U.S. C. 1782(c).8zIde

“’Id,a41d.*sDraft, p. 7,*6Draft, p. 17.i’PId,‘80AD 77-29, Mar, 15, 1977, supra, note 15.a9Draft, p. 12.‘Draft, p. 10, Primitive and natural areas, supra,

note 70, have been classified as “Instant Study Areas, ”meaning that they will be treated as wilderness studyareas right now, without the need for a wilderness in-ventory. Draft, p. 7.

“Opinion, supra, note 68.‘20pinion, p, 11.‘30pinion, p. 5.’43 U,S.C. 1782(c).9516 U.S, C. 1133(d)(4). This provision, and all other

provisions of the Wilderness Act relating to nationalforest wilderness areas, are applied to BLM wildernessareas by section 603.

9GThe regulations are found at 43 CFR part 2800. Seesupra, note 15, for a discussion of the current applica-bility of these regulations. OADS have been issued for“Processing of Right-of-Way and Temporary Use Appli-cations” (OAD 76-15; Dec. 14, 1976); “Right-of-WayCost Recovery” (OAD 76-15; Dec. 15, 1976); “Process-ing Pending Applications for Airport Leases” (OAD77-8; Jan. 24, 1977); and “Valuation of Non-linearRights-of-Way for Communication Purposes” (OAD77-3o; Mar. 15, 1977). Laws cited as underlying author-ity for the BLM right-of-way regulations are 5 U.S.C.301,43 U.S.C. 2, and 43 U.S.C. 1201. See 43 CFR 2802.1 -l(a).

“Fish and Wildlife Service regulations are found at50 CFR 29.21.

9843 U.S. C. 1767.9943 CFR 2802,1-l(a),‘W43 CFR 2801.1-5,10143 CFR 2802.1-2(a)(3).10243 CFR 2802.1-5(a).1°343 CFR 2802.1-4(a).‘W43 CFR 2802.1-3,2802. l-4(b).10543 CFR 2802.1 -2(a](l). OAD 76-15 states that ex-

cept for exclusion of management overhead, the policyembodied in the regulations is consistent with FLPMArequirements for cost recovery.

IW43 CFR 2802. l-2(a)(4).10743 CFR 2802.1 -2(a~6).‘m43 CFR 2802.1 -2(aX9).‘0’43 CFR 2802. 1-2(b).11043 CFR 2802.1 -2(a)(n) and (12). Provisions requir-

ing payment of costs, fair market or rental value, andbonding do not apply to State and local government ap-plicants for rights-of-way for public purposes, pursuantto road use or reciprocal road use agreements or toFederal agencies. 43 CFR 2802.1 -2(a12), 2802.1-7.

1“43 CFR 2802.1-7.1’243 CFR 2801.1-5(a).11343 CFR 2801. l-5( b),(c), (d),(e), (g),and (i),‘]443 CFR 2801.1-5(h).1’543 CFR 2801 .1.2 -5(e].1’643 CFR 2801 .1-5( f].“743 CFR 2801,1-1.“843 CFR 2802,3-1.’“43 CFR 2802.2-3.‘2043 CFR 2802.2-2.12143 CFR 2801.1-5(m).12243 CFR 2801.1-5(1).


NATIONAL PARK SYSTEM

The National Park System embraces over25 million acres (7 million acres in Alaska)’ innational parks, national monuments, historicmonuments, parkways, recreation areas, me-morials, historic sites, and other reservationsadministered by the Secretary of the Interiorthrough the National Park Service.2 Congressestablished the national parks “to conservethe scenery and the natural and historic ob-jects and the wildlife therein and to providefor the enjoyment of the same in such mannerand by such means as will leave them unim-paired for the enjoyment of future genera-tions.” 3 The National Park Service is requiredto promote and regulate use of park areas inconformance with the declared purposes ofpreservation and management “for the bene-fit and inspiration of all the people of theUnited States.”4 In conformance with thesedeclared purposes of the National Park Sys-tem, most nonrecreational uses of park areasare sharply limited or prohibited.

Photo Cred/t: OTA Staff

Caribou, McKinley National Park

The legal basis for use of park land forrights-of-way is found in (a) the general au-thority of the Secretary of the Interior tomanage the national parks under his author-ity in conformance with their established pur-poses; (b) specific statutes and regulationsgoverning individual units of the National

Note: Footnotes for this section appear on pp. 72-73.

Park System; (c) public land right-of-way stat-utes applicable to park lands; and (d) statutesand regulations relating to highways, naviga-ble waters, and other modes of transporta-tion.

GENERAL AUTHORITYFOR RIGHTS-OF= WAY

There is no express and comprehensive ac-cess or right-of-way authorization for the Na-tional Park System as there is for the publiclands,5 the National Wildlife Refuge System,’and the National Forest System.7 In general,the laws governing administration of nationalparks are less detailed and more discretion-ary than those for other land managementsystems. Access through a national park formineral exploration and development is sub-ject to the broad authority of the Secretary ofthe Interior to manage the national parksthrough the National Park Service.8 Exerciseof this authority should be in conformancewith the general purposes of the park systemof preservation and recreation, and with theparticular purposes for which a given parkunit was established.9 The Secretary is spe-cifically authorized to aid in the developmentof transportation systems which serve unitsof the national parks. The Secretary may con-struct, maintain, or, by agreement, makefunds available for local airports10 and roadsdesignated as park approach roads.11 T h eSecretary may construct roads and trailswithin national park areas and obtain anyrights-of-way necessary for improvement orconstruction of roads within authorizedboundaries of park areas.12 In the admin-istration of the parks, the Secretary is author-ized to regulate boating and other activitieson waters in the National Park System, in-cluding navigable waters under the jurisdic-tion of the United States.13 The regulation ofnavigable waters in park areas by the Sec-retary of the Interior complements the CoastGuard’s general jurisdiction over navigablewaters.


For administrative purposes, the ParkService has divided components of the Na-tional Park System into three categories:

●

●

●

Natural areas—all national parks andcertain national monuments establishedas such because of their natural fea-tures.14

Historical areas—all park areas desig-nated because of their historic or arche-ological significance, historical sites,battlefields, monuments, and memori-als.15

Recreational areas—all units of the parksystem administered for purposes ofpublic recreation, such as seashores,lakeshores, parkways, and wild rivers.”

Permissible uses of park areas often dependupon the administrative classification.

Regulations promulgated by the Park Serv-ice limit the operation of motor vehicles, air-craft, and vessels primarily for reasons ofsafety and the protection of life and property.Generally, aircraft must take off and landonly at designated land and water areas andcomply with Federal aviation regulations.17

Cars, offroad vehicles, and other motor ve-hicles are allowed only on established roadsor use areas unless special permission is ob-tained. 18 Boats must comply with Coast Guardrequirements and may be restricted in opera-tion in wildfowl nesting areas and fish habi-tats for safety reasons.19

The use of existing park roads by commer-cial vehicles is subject to strict controls. Parkservice regulations provide that:

The use of Government roads within parkareas 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


use is in no way connected with the opera-tion of the park area, is prohibited, exceptthat in emergencies the Superintendent maygrant permission to use park roads.20

The sole exception to this rule applieswhen a denial of the use of park roads wouldtotally foreclose access:

The Superintendent shall issue permits forcommercial vehicles used on park area roadswhen such use is necessary for access to pri-vate lands situated within or adjacent to thepark area, to which access is otherwise notavail able.21

The “local park superintendent is vestedwith broad discretion in matters relating tothe management of a particular park unit. Inaddition to laws applicable to the park systemas a whole, the statutes and executive ordersthat established and govern individual parkunits often impose more or less stringent re-quirements on permissible uses .22

STATUTES PROVIDING FORRIGHTS-OF-WAY THROUGH

NATIONAL PARKS

The 1901 Act, Rights-of-Way for PublicUtilities

The Act of February 15, 1901,23 providesthat the Secretary of the Interior may permitthe use of rights-of-way, for certain specifiedpurposes, through “the public lands, forests,and other reservations of the United States,and the Yosemite and Sequoia NationalParks, Calif., and the General Grant grovesection of Kings Canyon National Park,Calif.” 24 Rights-of-way maybe obtained underthe 1901 Act for construction and operationof facilities for the generation and distribu-tion of electricity for telephone and telegraphsystems, and for water projects for irrigation,mining, quarrying, timbering, manufacturing,or supplying water for domestic, public, orother beneficial purposes.

The right-of-way does not convey any prop-erty interest in the lands involved; it is alicense revocable at the discretion of the Sec-

retary.25 The right-of-way is limited in extentto the grounds occupied by the project plus anadditional area not to exceed 50 feet from themargins of the project. For pipes, pipelines,and electrical, telegraph, or telephone poles,the right-of-way may not exceed 50 feet fromthe centerline of the projects. A permit for aright-of-way across one of the named nationalparks or other reservations may be issuedonly on the approval of the “chief officer ofthe department” having jurisdiction over thelands after a finding that the proposed use is“not incompatible with the public interest. "26

The 1901 Act expressly referred to grantsof rights-of-way across Yosemite and SequoiaNational Parks (the General Grant grove wasadded by amendment in 1940).27 It has, there-fore, been suggested that the Act does not ap-ply to any other parks, though it would applyto all monuments and recreation areas ad-ministered by the Park Service.28 The implica-tion is that because the 1901 Act listed someparks and did not list others and because onepark was added in 1940, the unlisted parkswere not to be subject to this provision andwere not, under principles of statutory con-struction, covered by the phrase “other res-ervations.

Unlike the Act of March 4, 1911, the 1901Act is not mentioned in section lc(b) of Title16, United States Code, as one of those lawsthat are applicable to all units of the ParkSystem regardless of their designation asparks, monuments, or recreation areas in leg-islation redefining the National Park Sys-tem.29 However, that provision is, on its face,not an exclusive compilation of laws of gener-al applicability. It states: “the various author-ities relating to the administration and pro-tection of areas under the administration ofthe Secretary of the Interior through the Na-tional Park Service, including but not limitedto . . . shall, to the extent such provisions arenot in conflict with any such specific provi-sion be applicable to all areas within the Na-tional Park System and a reference in suchAct to national parks, monuments, recreationareas, historic monuments, or parkways shallhereinafter not be construed as limiting such


Act to those Areas.”30 (Emphasis added). Ifthe 1901 Act is covered by this provisionthen, because it applies to some elements ofthe System, it would apply to all. If it is notcovered, then only three parks are subject tothe right-of-way provision.

The 1911 Act, Rights-of-Way for Powerand Communications Facilities

The Act of March 4, 1911,31 authorizes theSecretary of the Interior to grant an “ease-ment for right-of-way” for a period of up to 50years from date of issuance to any person,association, or corporation of the UnitedStates for one or more of the listed purposes.This Act has been expressly extended to allareas in the National Park System.32 An ease-ment for right-of-way may be granted “over,under, across, and upon” national parks andother reservations of the United States for:

a. up to 200 feet from the center line ofpoles and lines for the transmission anddistribution of electricity or for linesand poles for radio, television, andother communications purposes; and

b. sites not exceeding 400 square feetfor transmitting, relay, receiving, andother communications structures andfacilities.

A right-of-way is granted only after approvalby the “chief of the department” upon a find-ing that the proposed use is not incompatiblewith the public interest.33 All or part of theright-of-way may be annulled or terminatedfor non-use or abandonment after a period of2 years. Communications facilities are sub-ject to regulation by the Federal Communica-tions Commission.34 Electrical power projectsare subject to regulation by the Federal En-ergy Regulatory Commission35 and by Stateauthorities.

The Ditches and Canals Acts

A series of public land laws, commonly re-ferred to as the “ditches and canals acts”36

grant rights-of-way through the public landsand reservations of the United States fordrainage and irrigation projects. The right-of-way may be obtained by a canal ditch com-

pany, irrigation or drainage district,37 individ-ual, or association38 upon filing with the Sec-retary of the Interior certain required docu-ments such as corporate articles of incor-poration, or other evidence of organizationunder State law, ownership information, andmaps of the location of the proposed right-of-way for drainage or irrigation projects.39

The right-of-way includes the ground occu-pied by the water of any reservoir, canals,and laterals, up to 50 feet from the marginallimits of the project, and any additional areaas the Secretary may deem necessary for theproper operation and maintenance of theright-of-way project.40 The holders of ditchand canal rights-of-way also obtain the rightto take any material, earth, and stone neces-sary for the construction of canals andditches from the adjacent public lands.41

The right-of-way may not be located so thatit interferes with the proper occupation bythe Government of such reservations. Mapsof right-of-way location are subject to the ap-proval of the administering department.42 Theright-of-way is effective upon approval of therequired maps and certificates and author-izes occupation of the right-of-way only forthe purpose of construction, operation, main-tenance, and care of the project, and no otherpurposes.43 Existing ditch and canal rights-of-way may also be used for purposes of a publicnature, for water transportation, for domes-tic purposes, “or for the development ofpower as subsidiary to the main purpose ofirrigation or drainage.”44

Public Utility Rights-of= Wayand Mineral Access

The 1901 Act, the 1911 Act, and theditches and canals acts do not address theproblems of mineral access. Individuals orbusiness entities seeking permission to uselands in the National Park System for accessto adjacent non-Federal lands for the pur-pose of mineral exploration and developmentalone will find no legal basis under these lawsfor access. However, these laws may provideauthority to approve rights-of-way over park

Ch. 4 Federal Land Management Systems . 71

lands for utilities systems that may be neces-sary to support mineral development.45

Under each law, the grant of a right-of-wayis conditioned on a finding by the Secretary ofthe Interior that a proposed use is appro-priate. The 1901 Act authorizes issuance of arevocable license for use of a right-of-way forelectric power, communications, and waterprojects subject to approval of the Secretaryand a finding that the proposed use is “not in-compatible with the public interest.”46 Thispublic interest standard, though seeminglybroad, should be construed in light of the de-clared purposes of the national parks. Anyuse detrimental to that purpose may be foundto be not in the public interest.

The 1911 Act provides for a right-of-wayfor a term of up to 50 years for electric powertransmission and distribution systems andcommunications facilities subject to approvalof the Secretary, and a finding that the use ofthe right-of-way is “not incompatible with thepublic interest.”47

The ditches and canals acts grant a right-of-way for drainage and irrigation projectsupon the approval by the Secretary of theproject maps and required certificates. Theright-of-way continues in effect as long as it isused for its primary declared purpose, Exist-ing canal and ditch rights-of-way may be usedfor certain limited public and subsidiary pur-poses but no other occupancy is authorized.Approval of a right-of-way may be denied ifthe location sought is found to interfere withthe Government’s proper occupation of thepark or reservation.48 Therefore, if the pro-posed use of the right-of-way is not consistentwith the purposes of preservation and recre-ation, it maybe denied.

APPLICATIONS FOR RIGHTS-OF-WAY

The Department of the Interior appliesthe BLM regulations on the applications forand issuance of rights-of-way to applicationsfor rights-of-way across National Park Sys-tem lands.49 Applications for rights-of-way

through park areas are made to the Directorof the National Park Service.50 Applicantsmust file a request for a right-of-way, citingthe statute(s) or other authority under whichit is sought, providing maps and supportingdocuments, and making a deposit for admini-strative costs, The applicant agrees to acceptall the terms and conditions of issuance setforth in the regulations.

RIGHTS-OF-WAY FOR HIGHWAYS

Federal agencies, States, and local juris-dictions seeking a right-of-way through Na-tional Park System lands for federally aidedhighways and other transportation projectsmay file a designated route with the Secre-tary of Transportation.51 This begins a multi-tier review process. The Secretary of Trans-portation cooperates with the Secretaries ofthe Interior, Housing and Urban Develop-ment, and Agriculture and the States to de-velop a transportation plan and program thatincludes measures to maintain or enhancethe natural beauty of the lands involved.52

Federal-local cooperative studies are au-thorized to determine the most feasible Fed-eral aid for the movement of vehicular trafficthrough or around national parks so as “tobest serve the needs of the traveling publicwhile preserving the natural beauty of theseareas.”53 If the Secretary of Transportationconcludes that Federal park land is reason-ably required for a highway or other trans-portation project and that no prudent or feas-ible alternative exists, a request for a right-of-way and supporting information is filedwith the Secretary of the Interior.54 If theSecretary of the Interior does not certify thatthe proposed right-of-way is contrary to thepublic interest or inconsistent with the pur-poses of the park reservation or if he ap-proves the right-of-way subject to conditionsdeemed necessary for the adequate protec-tion and utilization of the park within 4months, the Secretary of Transportation mayappropriate the necessary land and transfera right-of-way to the State agency .55


FOOTNOTE REFERENCES FOR NATIONAL PARK SYSTEM

‘Department of the Interior, Bureau of Land Manage-ment, Public Land Statistics 1976, 21.

216 U.S, C, lc(a). “Reservation” is a generic term,which refers to any public lands that have been with-drawn for certain specific purposes and thereby segre-gated from the operation of various other public landlaws that authorize the use or disposition of the lands.Lands may be reserved or “withdrawn” by statute, byexecutive order pursuant to statute, or by executive ac-tion subject to an implied inherent withdrawal authori-ty of the President (this last power, to the extent that itexists, has been limited by sections 204 and 704 of theFederal Land Policy and Management Act of 1976, com-monly known as the BLM Organic Act, Public Law94-579, Oct. 21, 1976, 90 Stat. 2743. See 43 U.S.C.1714). Almost all national parks were created bystatute. Many national monuments were originallycreated by reservations pursuant to the Antiquities Actof 1906, which authorizes the President to establish na-tional monuments in areas of historic or scientific in-terest or value by public proclamation (16 U.S.C.431-433). Most national recreation areas were createdby cooperative agreement between the Park Serviceand the Bureau of Reclamation under which landspreviously withdrawn for reclamation were subjectedto recreation uses.

When the term reservation is used in a statute, par-ticularly older statutes, it includes any lands under thejurisdiction of the Park Service unless specified other-wise.

’16 U.S.C. 1.416 U.S,C. la-l.543 U.S. C. 1761 et seq.616 U.S.C. 668dd(d).743 U.S.C. 1761 et seq.; 16 U.S.C. 532-538.‘See 16 U.S.C. 1 et seq.’16 U.S.C. la-l, lc(b).‘[)16 U.S.C. 7a-7e.’116 U.S,C, 8, 8a-8f.’216 U.S.C. 1, lb(7),8,’316 U.S,C. la-2(h),“36 CFR 1.2(g].’536 CFR 1.2(h).‘b36 CFR 1.2(i).“36 CFR 22.‘8 See regulations relating to operation of motor vehi-

cles at 36 CFR 4,19. For snowmobiles, see 36 CFR part2.34.

’936 CFR part 3.2036 CFR 5.6(b) Commercial vehicles are defined as

any vehicles “used in transporting moveable propertyfor a fee or profit. ” 36 CFR 5,6(a).

2’36 CFR 5.6(c).2216 U.S.C. lc(b), laws establishing individual units of

the national parks are codified in Title 16 U.S.C. and inregulations, 36 CFR Pt. 7 and also 36 CFR parts 6, 12,20, 21, 25,28,30.

2331 Stat. 790, 43 U.S.C. 959 (1970), also codified at16 U.S.C. 79, 522 (1970). The BLM Organic Act, 43U.S.C. 1701 et seq., repealed the 1901 Act to the extentit applied to public lands and national forests—leavingonly application to named parks “and other reserva-tions.” Public Law 94-579, section 703(a), 90 Stat, 2743.

z443 U.SOC. 959. Note, however, that the codificationat 43 U,S. C. 79 governing national parks was notamended to include General Grant grove section ofKings Canyon National Park, Calif,, as a named park.

zSUnited States v. Colorado Power CO., 240 F. 217 (D.Col. 1916).

2643 U.s.c. 959.zpAct of March 4, 1940, 54 Stat. 41.zBLee D. M o r r i s o n , “Rights-of-Way on Federally

Owned Lands: A Journey through the Statutes by Wayof the Federal Land Policy and Management Act of1976,” 9 Transportation Law Journal 97 (1977), at 111.The 1901 Act was passed after the establishment ofYellowstone National Park, Act of March 1, 1872, c. 24s1, 17 Stat. 32, and Mount Rainier National Park, Act ofMarch 2, 1899, c. 377 s1, 30 Stat. 993. Neither is men-tioned in the Act.

zYAct of August 18, 1970, Public Law 91-383, 84 Stat.825, 16 U.S.C. IC.

3016 U.S.C. lc(b).3136 Stat. 1253, 43 U.S. C. 961 (1970) (also codified at

16 U.S.C. 5, 420, 523). Section 5 applies to nationalparks and other reservations; section 420 to nationalparks, military, or other reservations; section 961 topublic lands, Indian, or other reservations; section 523applies to national forests. The BLM Organic Act par-tially repealed the 1911 Act insofar as it applied topublic lands and national forests. Public Law 94-579,90 Stat, 2743, section 703(a).

3243 U.S.C. lc(b).3343 U.S,C. 961, 16 U.S.C. 5,420.“Id.jssee, generally, 16 U,S. C. 797 et seq. and regulations

thereunder. The Federal Energy Regulatory Commis-sion was formerly the Federal Power Commission.

3“The “ditches and canals acts” include: Act ofMarch 3, 1891, c. 561, 26 Stat. 1101; Act of January 13,1897, c. 11, 29 Stat. 484; Act of May 11, 1898, c. 292, 30Stat. 404; Act of March 4, 1917, c. 184, 39 Stat. 1197;Act of March 3, 1923, c. 219, 42 Stat. 1437; Act ofMarch 3, 1925, c. 462, 43 Stat. 1145; and Act of May28, 1926, c. 409, 44 Stat, 668. The “ditches and canalsacts” are codified generally at 43 U.S.C. 946 to 954.These laws were repealed in part by the BLM OrganicAct as they apply to public lands and national forests.See Public Law 579, section 703(a), 90 Stat. 2743(1976).

3743 U.S.C. 946.’843 U.S. C. 948.3943 U.S. C. 946.‘Id.

Ch. 4 Federal Land Management Systems “ 73

“M.“Id.4]43 U.s.c. 949.“43 U.s.c. 951.‘5The availability of rights-of-way for utilities may

seem useless if there is no means of surface access forthe enterprise which the facilities are intended to sup-port. But such split access may be feasible where air orsea transport or a more circuitous surface transportroute can be established. It should be taken into ac-count that the costs of utility systems are much moresensitive to additional length than many other transpor-tation systems.

“616 U.S.C. 79.

“16 U.S.C. 420.’843 U.S.C. 946.“943 CFR 2801.1-7(b). See discussion of BLM regula-

tions in previous section on Public Lands.‘(143 CFR 2802. l-l(a).‘lSee laws applicable to the Federal-aid highway sys-

tem, 23 U.S.C. 101 et seq., and 23 U.S. C. 317.5223 U,S.C. 138.5323 U.S. C. 138.5423 U,S.C, 1653(f), commonly known as section 4(f) of

the Department of Transportation Act and also foundat 23 U.S. C. 138. See discussion of section 4(f) else-where in this report.

5523 U.S.C. 317.


wildlife refuges, areas for the protection andconservation of fish and wildlife that arethreatened with extinction, wildlife ranges,game ranges, wildlife management areas, orwaterfowl production areas.’” This systemcomprises over 30 million acres nationwide,with 22.2 million acres in Alaska. z

There are at least eight statutes that mayprovide authority for the management pol-icies and purposes of the NWRS.3 The pri-mary authority is found in the NationalWildlife Refuge System Administration Act4

which makes specific provisions for grants ofeasements across NWRS lands.5 Other stat-utes, which may provide authority for rights-of-way in wildlife refuges, are the Act ofFebruary 15, 1901,6 the Act of March 4,1 9 9 1 ,7 and the ditches and canals acts.8

Rights-of-way through wildlife refuges forfederally funded highways and other trans-portation projects may be obtained under sec-tion 4 of the Refuge Administration Act. How-ever, federally aided transportation projectsthrough refuge areas are subject to reviewunder section 4(f) of the Department of Trans-portation Act.9 (The Mineral Leasing Actmakes provision for oil and gas pipelinerights-of-way through refuges, but requiresprior findings that such use is not inconsist-ent with the purposes of the refuge.)10

The National Wildlife Refuge System Ad-ministration Act authorizes the Secretary ofthe Interior to permit the use of “any areawithin the system for any purpose, includingbut not limited to . . . access whenever hedetermines that such uses are compatiblewith the major purposes for which such areaswere established.”11 The Secretary is furtherauthorized to: “permit the use of, or granteasements in, over, across, upon, through, orunder any areas in the system for the pur-poses such as, but not necessarily limited to,powerlines, telephone lines, canals, ditches,


pipelines, and roads including the construc-tion, operation, and maintenance thereof,wherever he determines that such uses arecompatible with the purposes for which suchareas were established. “12

Right-of-way regulations issued by the Fishand Wildlife Service state, “No right-of-waywill be approved unless it is determined bythe Regional Director to be compatible.”13

That term is defined by the regulations:“ ‘Compatible’ means that the requestedright-of-way or use will not interfere with ordetract from the purposes for which units ofthe National Wildlife Refuge System are es-tablished.” 14

The holder of any right-of-way in a wildliferefuge granted by the Secretary under provi-sions of the Refuge Administration Act or anyother law is required to pay in advance thefair market value or yearly rental value of theright-of-way .15 If the holder is a Federal,State, or local agency exempted by law frompayment requirements, the agency is re-quired to compensate the Secretary by otheracceptable means such as the loan of otherland, equipment, or personnel to the extentsuch arrangements are consistent with theobjectives of the National Wildlife RefugeSystem; otherwise the Secretary may waivethe compensation requirement.’” After deduc-tion of necessary administrative expenses,any proceeds from private right-of-way ease-ments on refuge system lands are depositedto the Migratory Bird Conservation Fund17 tobe used for land acquisition to carry out thepurposes of the Migratory Bird ConservationAct18 and the Migratory Bird Hunting StampAct. l9

RIGHTS-OF-WAY UNDER OTHERSTATUTES

Lands reserved for fish and wildlife pur-poses may be subject to the right-of-way pro-visions of the 1901 Act, the 1911 Act, and theditches and canals acts, which are laws ofgeneral applicability. Although these lawswere partially repealed by the Federal Land


Policy and Management Act insofar as theyapplied to public lands and national forests,their applicability to “other reservations” re-mains.20 However, the express and broad au-thorization for wildlife refuge rights-of-wayin the Refuge Administration Act would seemto be more favorable to applicants than thetrio of special right-of-way laws, especiallysince payment is required even if access issought under another statute.21 The right-of-way regulations issued by the Fish and Wild-life Service require that all applications for aright-of-way easement be made under theRefuge Administration Act provisions.22 Ac-cess use of refuge areas that are also com-ponents of the National Wild and ScenicRivers System or the National WildernessPreservation System is regulated by the lawscovering those systems.23 Wild and ScenicRivers System components administered bythe Fish and Wildlife Service are subject tothe access authority for national parks in-stead of that for wildlife refuges. 24 The Fishand Wildlife Service has declared that con-struction of transportation facilities in desig-nated refuge wilderness areas will not beallowed without special authorization by Con-gress.25

RIGHTS-OF-WAYFOR TRANSPORTATION SYSTEMS

Federally funded highways, railways, orwaterways may be built through wildliferefuges but they must meet certain require-ments. First, the application for a right-of-way must be approved by the Fish and Wild-life Service and the Secretary of the Interioras being compatible with the purposes forwhich the refuge was established, and ar-rangements for payment or other compensa-tion must be made.26 Second, under section4(f) of the Department of Transportation Actof 1966,27 the Secretary of Transportationmust review the proposed project. Approvalmay be granted only if (1) there are no feasi-ble and prudent alternatives to the use ofrefuge lands, and (z) the program includes all

possible planning to minimize environmentaldamage.28

The general position of the Fish and Wild-life Service on the use of refuge areas fortransportation projects and the use of specif-ic transportation modes within refuges isstated in the Final Environmental Statementfor the Operation of the National WildlifeRefuge System:

The use of passenger vehicles, includingORVs is restricted in time and place to pro-tect wildlife, habitat, public safety, andGovernment property. Many refuges includeinland, intracoastal, and in some cases up toa 3-mile strip of coastal waterways. Commer-cial transportation use of navigable watersis limited primarily to powered boats but sig-nificant recreational use occurs in certainareas. Navigable waters are generally notsubject to refuge regulations as managementmust acknowledge State ownership of sub-merged lands, commitment for navigationpurposes, and authorities of other agenciessuch as the U.S. Coast Guard or U.S. ArmyCorps of Engineers.

Regulation of access on inland and intra-coastal waters is generally necessary to pro-tect wildlife but use of traditional navigationchannels is generally permitted. Regulationsmay include control of methods, times, androutes of access. 29

APPLICATIONS FOR RIGHTS= OF= WAY

An applicant for a right-of-way acrossrefuge lands must submit an application andsupporting information to the Regional Direc-tor of the Fish and Wildlife Service for thearea in which the refuge is located.30 The Fishand Wildlife Service has adopted right-of-way procedures and requirements similar tothose followed by BLM.31

Applicants must pay a nonreturnable ap-plication fee32 as well as all costs incurred inprocessing the application.33 They must alsoagree to reimburse the United States for allcosts incurred “in monitoring the construc-tion, operation, maintenance, and termina-tion of facilities within or adjacent to theeasement or permit area.”34 All applications


must include a detailed analysis of the impactof the proposed action on the environment.35

A map or plat accurately describing the right-of-way must accompany each application.36

Easements are generally granted for 50years or so long as the right-of-way is used forthe purposes granted.37 All easements includeterms requiring the following:

●

●

●

●

●

Compliance with State and Federal lawsand regulations applicable to the projectfor which the easement is granted and tothe lands included in the easement.38

Soil and resource conservation and pro-tection measures.39

Fire prevention.40

Rebuilding or repairing roads, fences,structures, and trails destroyed or dam-aged by construction, and building andmaintaining suitable crossings for roadsand trails which intersect the right-of-way.41

Payment to the United States for dam-ages to lands or property caused by the

●

applicant and indemnification againstany liability for damages arising fromoccupancy or use of lands under ease-ment.42

Restoration of the land to its originalcondition upon revocation and termina-tion.43

The applicant is required to pay the fair mar-ket value for use and occupancy of lands sub-ject to an easement.44

The Regional Director may suspend or ter-minate an easement for failure to complywith any terms or conditions of the grant orfor abandonment.45 He must give the ease-ment holder 60 days notice, during whichtime the holder may avoid suspension or ter-mination by taking such corrective action asis specified in the notice.46 If, at the end of the60 days, corrective action has not been taken,a determination to that effect by the RegionalDirector will operate to suspend or terminatethe easement, without a hearing.47 There areprovisions for administrative appeals from an

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


’16 U.S.C. 668dd(a)(l). Fish and Wildlife Serviceregulations provide that: “all wildlife refuge areas aremaintained for the fundamental purpose of developinga national program of wildlife conservation andrehabilitation. These areas are dedicated to wildlifefound thereon and for the restoration, preservation,development, and management of wildlife habitat; forthe protection and preservation of endangered or rarewildlife and their associated habitat; and for themanagement of wildlife, in order to obtain maximumproduction for perpetuation, distribution, dispersal,and utilization. ” 50 CFR 252.

‘Department of the Interior, Bureau of Land Manage-ment, Public Land Statistics 1976, p, 19.

3The statutes cited include: 5 U.S. C. 301 which pro-vides general authority to promulgate regulations; 16U.S,C. 685, 725, 690d which are portions of actsestablishing specific NWRS areas; 16 U.S.C. 7-15(i)from the Migratory Bird Conservation Act; 16 U.S.C.664 from the Fish & Wildlife Coordination Act; 4 3U.S,C. 315a from the Taylor Grazing Act; and 16 U.S.C.460 from the Act of September 28, 1962, as amended bythe Act of October 15, 1966, which provides for recrea-tional use of NWRS lands, fish hatcheries, and otherconservation areas administered for fish and wildlifepurposes. Measures have been introduced in recentsessions of Congress to establish a governing agencyand organic act for the NWRS. See, e.g., S. 984, 95thCong., 1st sess., 123 Cong. Rec. S4020 (daily ed. Mar.11, 1977): H.R. 2082, 95th Cong., 1st sess., 123 Cong.Rec. H477 (daily ed. Jan. 19, 1977). The NationalWildlife Refuge System Administration Act Amend-ments of 1976, Public Law 94-223, 90 Stat, 199, Feb. 27,1976, provided that all units of the NWRS would be ad-ministered by the Fish and Wildlife Service (previouslythere had been joint administration of some areas withBLM) and that areas may not be removed from the Sys-tem without an Act of Congress. Section a(l) of the Actauthorized continuance of cooperative programs forthe management of resources on Alaska refuge lands.16 U.S.C. 688dd(a)(l).

’16 U.S.C. 668dd.516 U.S.C. 668dd(d)(l].’43 U.s.c. 959.’43 U.S.C. 961.’43 U.S.C. 946-954.’49 U,S.C. 1653(f). 4(f) review only occurs when funds

appropriated to the Department of Transportation areused.

’030 U.S.C. 185(b)(l)o11 1(5 U.S. C. 668dd(d)(l),“Id,’350 CFR 29.21-l(a). Regulations for the grant of ease-

ments for rights-of-way are set out at 50 CFR 29.21.These regulations were recently extensively revised to

reflect amendments to the Mineral Leasing Act and theNational Wildlife System Administration Act Amend-ments of 1974. See 42 F.R. 43916, Aug. 31, 1977.

“50 CFR 29.21(h).“16 U.S.C. 668dd[d)(2).‘61d.“Id.1816 u.S. C, 715 et seq.1916 U,S.C. 718 et seq.Zopublic Law 94-579, section 703(a), 90 Stat. 2743. All

wildlife refuges are reservations. A discussion of the1901 Act, the 1911 Act, and the ditches and canals actsis contained in the section on National Parks.

2} 16 u.S.C. 668dd(d)(2).2250 CFR 19.21-l(a) as revised, 42 F.R. 43917, Aug.

31, 1977. One commentator has observed that these oldlaws are no longer cited as right-of-way authority in theregulations issued for NWRS. See Lee D. Morrison,Rights-of-Way on Federally Owned Lands: A JourneyThrough the Statutes by Way of the Federal LandPolicy and Management Act of 1976, 9 TransportationLaw Journal 113 (1977).

23 See discussion of these systems in other sections ofthis report.

’416 IJ. S.C. 1284(g).ZSDepartment of the Interior, Fish and Wildlife Serv-

ice, Final Environmental Statement on the Operation ofthe National Wildlife Refuge System, p. III-82 (1976).

2’16 U.S.C. 668dd(d).2749 U,S.C. 1653(f).ZaId.zgFina] Environmental Statement, Supra, note 25,

III-82.3050 CFR 29.21-2.3’The regulations, as revised, are set forth at 50 CFR

29,21 and 42 F.R. 43916, Aug. 31, 1977, supra, note 13.3250 CFR 29.21-l(a)(2)(i). This requirement does not

apply to State or local governments or their agenciesand instrumentalities unless a pipeline easement issought.

3350 CFR 29,21 -2(a)(2)(ii)(D).3~50 CFR 29.21-2(a)(3)(i). See infra, note 44.3550 CFR 29.21-2(a)(4). The analysis must be sufficient

to allow FWS to prepare an impact statement underNEPA, if required. It must also comply with the require-ments of the National Historic Preservation Act of 1966(16 U.S.C, 47o et seq.), the Archeological and HistoricalPreservation Act of 1974 (16 U.S.C, 469 et seq.), E.O.11593 “Protection and Enhancement of the Cultural En-vironment, ” May 13, 1971 (36 F.R, 8921) and “Proce-dures of Historic and Cultural Properties” (36 F.R.800).

]’50 CFR 29.21-2(b). It must be sufficiently detailed tolocate accurately the right-of-way on the ground.

3750 CFR 29.21-3(a).


3~50 CFR 2g,21-4(b)(l),3950 CFR 2w21-4(b)(4).4050 CFR 29.21-4(b)(5).4150 CFR 29.21-4(b)(6).4250 CFR 29.21-4(b)(7).4350 CFR 29,21 -4( b)(10). This requirement may be

waived in writing,4450 CFR 29.21-7. Payment may be made in a lump

sum or through annual fair market rental payments.Federal, State, or local agencies, exempted from pay-ment by Federal law, shall compensate by other meanssuch as making land available or loaning equipment orpersonnel. A separate provision requires a nonreturn-able payment within 60 days of the grant of an ease-ment under a schedule based on the length of the ease-ment, 50 CFR 29,21 -2(a)(3)(ii). This payment is to defercosts incurred in monitoring activities on the easement,If actual costs for monitoring are greater, additional re-

imbursement can be required, 50 CFR 29.21 (a)(3)(ii) (B).4550 CFR 29.21-4(9). A rebuttable presumption of

abandonment is raised by deliberate failure to use allor part of the easement for a continuous 2-year period.

4650 CFR 29.21-4(9). The Regional Director may ex-tend the 60day period when extenuating circum-stances or other compelling reasons warrant.

4750 CFR 29.21-4(9). Holders of rights-of-way underthe Mineral Leasing Act are entitled to a formal hear-ing conducted pursuant to 5 U.S.C. 554 prior to a finaldecision to suspend or terminate, Other easement hold-ers do not have the right to this procedure.

4’50 CFR 29.22. Appeals may be taken from any finaldisposition by the Regional Director to the Director.Decisions of the Director may be appealed to the Sec-retary of the Interior. The procedure for such appealsis set out at 43 CFR part 4, subpart G.

NATIONAL FOREST SYSTEM

The National Forest System consists ofover 187.5 million acres1 of forest, rangeland,and other lands and waters administered bythe Forest Service of the Department of Agri-culture. 2 The national forests are establishedand maintained “to improve and protect theforest,” to secure “favorable conditions ofwater flow, ” “ to furnish a continuous supplyof timber, ”3 and for other outdoor recreation,range, timber, watershed, fish, and wildlifepurposes.4 The national forests are managedon a multiple-use sustained-yield basis5 with“due consideration” given to “the relativevalues of the various resources in a particu-lar area,” including wilderness values.6 Un-der the Forest and Rangeland Renewable Re-sources Planning Act of 1974,7 units of theNational Forests System are to be admin-istered according to land and resource man-agement plans prepared under the Renew-able Resources Program developed by the De-partment of Agriculture as part of a continu-ing responsibility to inventory and assessrenewable resources uses and supplies.8 De-velopment of mineral resources is a generallyrecognized and accepted use of nationalforests. 9

Clear statutory authority for the use of na-Note: Footnotes for this section appear on pp. 81-82.

tional forest lands for access purposes isfound in Title V of the Federal Land Policyand Management Act of 197610 and in lawsauthorizing development of the National For-est Transportation System.11 National forestcomponents of the National Wilderness Pres-ervation System and the National Wild andScenic Rivers System are managed under thelaws and regulations applicable to those sys-tems in addition to the general laws govern-ing the National Forest System. Access usesof these areas are limited and are discussedunder sections of this report on those sys-tems.

THE BLM ORGANIC ACT

The Federal Land Policy and ManagementAct of 1976, commonly referred to as theBLM Organic Act, established comprehen-sive right-of-way authorization for the Secre-tary of the Interior for the public lands andthe Secretary of Agriculture for the nationalforests, except for those areas designated aswilderness. The Act repealed many olderright-of-way laws including the Act of Febru-ary 15, 1901,12 the Act of March 4, 1911,13 andthe ditches and canals acts14 to the extentthat they applied to public lands and nationalforests. 15

Ch. 4 Federal Land Management Systems . 79

Under Title V, permits for rights-of-waymay be granted for:

●

●

●

●

s

●

●

Systems and facilities for impoundment,storage, transportation, or distributionof water;

Pipelines and other systems for trans-portation and storage of liquids andgases other than water, or petroleum ornatural gas products;

Pipelines, slurries, and other transporta-tion systems for solid materials and re-lated storage facilities;

Electric power projects (subject to com-pliance with Federal Energy RegulatoryCommission (FERC) requirements);

Communications systems;

Transportation purposes such as roads,highways, canals, and airways, exceptwhere they are associated with commer-cial recreation facilities on National For-est System lands; or

Other necessary transportation systemsor other systems or facilities in the pub-lic interest requiring rights-of-way overNational Forest System lands. ”

The applicant for a right-of-way must providethe Secretary with any contracts, plans, andother information reasonably related to theuse of the right-of-way that are needed for adecision on the issuance or renewal of theright-of-way and on any terms or conditionsrequired. ’7 When appropriate, the Secretarymay also require the applicant to provide in-formation on the competitive effect of theright-of-way. Business entities must discloseownership and other relevant financial infor-mation. 19 If a proposed use might have a sig-nificant impact on the environment, the appli-cant is required to submit a plan for the con-struction, operation, maintenance, and reha-bilitation of the right-of-way in compliancewith stipulations and regulations issued bythe Secretary prior to approval of the appli-cation. 20

Rights-of-way will be granted for a reason-able term for the area occupied by the project

and necessary for its safe operation and forsuch additional area as needed for the con-struction, maintenance, or termination of theright-of-way project. 21 The use of corridorsfor rights-of-way in common maybe requiredwhere practical to minimize adverse environ-mental impacts.22 The holder must pay the ad-ministrative costs associated with the issu-ance and monitoring of the right-of-way, aswell as for the fair market value of the right-of-way, unless such payment is waived orother financing arrangements exist.23 Eachgrant of a right-of-way must contain enforce-able provisions requiring compliance with ap-plicable Federal and State standards forhealth, safety, and environmental protection,compliance with conditions for protection ofscenic, esthetic, and fish and wildlife values,and protection of the interests of other lawfulusers and the public in the lands covered bythe right-of-way .24 No right-of-way will beissued or renewed unless the Secretary de-termines that the applicant has “the techni-cal and financial capability to construct theproject for which the right-of-way is re-quested” in accordance with all terms andconditions imposed.25

THE NATIONAL FORESTTRANSPORTATION SYSTEM

In the Act of October 13, 196426 Congressdeclared that “the construction and mainte-nance of an adequate system of roads andtrails within and near national forests andother lands administered by the Forest Serv-ice is essential if increasing demands for tim-ber, recreation, and other use of such landsare to be met.”27 The anticipated effects ofthe existence of such a road system would bean increase in “the value of timber and otherresources tributary to such roads” and im-proved ability of the Secretary of Agricultureto provide for the “intensive use, protection,development, and management of these landsunder principles of multiple use and sus-tained yield of products and services.”28

To promote development of a forest roadsand trails system, the Secretary of Agricul-


ture is authorized to grant permanent or tem-porary easements for road rights-of-way overnational forests or other lands administeredby the Forest Service or related lands inwhich the Department has an interest underthe terms of the grant to it.29 The easementmay be terminated by consent of the owner,by condemnation, or for non-use for a periodof 5 years.30 The Secretary may, under theforest development road program, provide forthe acquisition, construction, and mainte-nance of such roads within and near NationalForest System lands.31 These roads are to belocated and built in such a manner as to per-mit maximum economy in timber harvesting,while meeting requirements for protection,development, and management of lands andresources in surrounding non-Federal lands.Roads may be financed by departmental ap-propriations, requirements on the purchasersof national forest timber and resources,cooperative financing with public or privateagencies or individuals, or a combination ofthese methods.32 The Secretary may also re-quire users of Forest Service roads to main-tain or reconstruct the roads in relation totheir proportionate share of total use or toprovide a deposit against the costs of mainte-nance or reconstruction.33

Congress has directed that the develop-ment of a transportation system to serve thenational forests be carried forward in time“to meet anticipated needs on an economicaland environmentally sound basis and thatmethods chosen to finance the constructionand maintenance of the system should besuch as to enhance local, regional, and na-tional benefits. ”34 All roads constructed onNational Forest System lands must meet“standards appropriate for the intendeduses, considering safety, cost of transporta-tion, and impacts on land and resources.”35

Unless a permanent road is necessary as partof the National Forest Transportation Sys-tem, any road constructed in connection witha timber contract or other lease or permitmust be designed so that vegetative cover willbe reestablished by natural or artificialmeans within 10 years of termination of oper-ation. 36

CONFLICT BETWEEN ACCESSPROVISIONS

The two statutes discussed above differ insome material respects. Section 510(a) of theBLM Organic Act provides that, in the eventof any conflict between the requirements ofTitle V and the Act of October 13, 1964, thelatter Act will prevail.37 When dealing withcomponents of the National Forest Transpor-tation System, the Secretary need not applyany provisions of Title V. Rights-of-way thatare not roads built under the 1964 Act aregoverned by Title V. A proviso states that itshall not be mandatory for the Secretary ofAgriculture to apply limitations on rights-of-way, ownership disclosure requirements, orany other condition contrary to establishedpractices under the 1964 Act when dealingwith any forest roads.38 A clear implication ofthe proviso, however, is that the Secretarymay apply such provisions at his discretion.

Forest Service regulations implementingthe 1964 Act39 stress a policy of coordinatedplanning that takes into account the transpor-tation and resource development needs ofsurrounding communities.40 Each unit of theNational Forest System is to have a plan for atransportation system for the protection andutilization of the area, or the development ofresources on which communities within oradjacent to the national forest are depend-ent. 41 Use of existing roads and trails in theNational Forest System is permitted subjectto certain regulations for protection and ad-ministration of lands and apportionment ofcosts. 42 Easements for construction or use of aroad across Forest Service lands may begranted for a reciprocal benefit, or condi-tioned on payment of reasonable charges andacceptance of necessary and appropriateterms and conditions.43 Applications underthe 1964 Act are made to the Chief of theForest Service. Permits may be required forcommercial hauling of non-Federal forestproducts or other commodities and materialson designated “special service roads” condi-tioned on meeting proportionate costs of useor appropriate terms and conditions of opera-


tion.44 In circumstances where transportationsystems serving forest lands and inter-mingled and adjacent non-Federal lands areundeveloped or inadequate, the Chief of theForest Service may join in cooperative plan-ning, financing, construction, and mainte-nance of roads to the extent that it is feasibleand advantageous to the United States.45

ROADLESS AREA REVIEW

The Forest Service is currently engaged ina major review of all potential wildernessareas in the forest system called the RoadlessArea Review and Evaluation (RARE 11).40 Ithas identified approximately 67 million acresof roadless areas, including 18 million acresin Alaska, which might be suitable for desig-nation as wilderness .47

As a result of an out-of-court settlement,the Forest Service has agreed that it will

prepare an environmental impact statementfor any proposed actions that might affect thewilderness potential of roadless lands in theRARE II inventory.48 To minimize disruptionand uncertainty, the Forest Service hopes toconclude the evaluation of all areas in the in-ventory by early 1979, at which time inven-toried lands will be divided into three catego-ries— “recommended wilderness,” “furtherevaluation, ” and “no further wilderness con-sideration. ’49 Areas in the first two cate-gories will be managed to protect wildernesspotential and access may well be limited.50

The size of final wilderness designation isuncertain. The Forest Service has establisheda program goal in its Renewable ResourceProgram that calls for the eventual designa-tion of 25 million to 30 million acres of forestland in the wilderness system (as of Decem-ber 1977, there were 12.5 million acres ofland in the National Wilderness PreservationSystem) .5’

FOOTNOTE REFERENCES FOR NATIONAL FOREST SYSTEM

‘Bureau of Land Managment, Public Land Statistics1976. There are 20.7 million acres of National ForestSystem lands in Alaska.

2The National Forest System is defined in the Forestand Rangeland Renewable Resources Planning Act of1974 as “all national forest lands reserved or with-drawn from the public domain of the United States, allnational forest lands acquired through purchase, ex-change, donation, or other means, the national grass-lands and land utilization projects administered undertitle 111 of the Bankhead-Jones Farm Tenant Act (7U.S.C, 1010 et seq.), and other lands, waters, or in-terest therein which are administered by the ForestService or are designated for administration throughthe Forest Service as a part of the system. ” 16 U.S.C.1609.

316 U.S.C. 475.416 U.S.C. 528.SId. As defined in the Multiple-Use Sustained-Yield

Act of 1960, “multiple use” means: the management ofall the various renewable surface resources of the na-tional forests so that they are utilized in the combina-tion that will best meet the needs of the American peo-ple; making the most judicious use of the land for someor all of these resources or related services over areaslarge enough to provide sufficient latitude for periodic

adjustments in use to conform to changing needs andconditions; that some land will be used for less than allof the resources; and harmonious and coordinatedmanagement of the various resources, each with theother without impairment of the productivity of theland, with consideration being given to the relativevalues of the various resources, and not necessarily thecombination of uses that will give the greatest dollarreturn or the greatest unit output. 16 U.S.C. 531(a).

“Sustained yield of the several products and serv-ices” means the achievement and maintenance in per-petuity of a high-level annual or regular periodic outputof the various renewable resources of the national for-ests without impairment of the productivity of the land.16 U.S.C. 531(b).

816 U.S. C. 529.716 U.S.C, 1601 et seq., as amended by the National

Forest Management Act of 1976, Public Law 94-588, 90Stat. 2949.

L116 U.S, C, 1604. Until a plan is developed for a givenunit, management continues under existing plans, 16U.S.C. 1604(c).

’16 U.S.C. 528. The Multiple-Use and Sustained-YieldAct of 1969.

’043 U,S.C. 1761 et seq.1’16 U.S.C. 532-538, 16 U.S.C. 1608.


1243 U.S.C. 959, 16 U.S.C. 522.1343 U.S.C. 961, 16 U.S.C. 523.“43 U,S,C. 946-951,ISFor a discussion of these laws, see section on Na-

tional Parks.1643 U.S.C. 1761(a).1743 LJ. S.C. 1761(b)(l).]aId,1’43 U.S.C. 1761(b)(2).2043 U.S.C. 1764(d).2143 U.S.C. 1764(a).

2243 U.S.C. 1763.2’43 LJ, S.C. 1764(g).2443 U,S.C. 1765.2’43 U,S.C. 1764(j).zs~blic Law 88-657, 78 Stat. 1089, 16 U.S.C. 532-538.2716 U.S.C, 532.261d.2e16 U.S.C. 533.’16 U.S.C. 534,3116 U.S. C. 535,Sqd. When a higher quality road is needed than that

necessary for purchasers’ removal of forest resourcesor timber, the purchasers may be required to meet thecosts proportionate to their use.

3316 U.S.C, 537.3416 U.S.C. 1608(a).’516 U.S.C. 1608(C).3616 LJ. S.C. 1608(b).3743 U.S.C. 1770(a).SeId.39The regulations are at 36 CFR 212.1. It should be

noted that these regulations address issues germane tothe development of a transportation system by the Gov-ernment. With the exception of provisions for “specialservice roads, ” there is little that addresses fact situ-ations involving applicants seeking a right-of-way fortheir own use.

40See 36 CFR 212.1(c), 212.2.3, 212.8( a),212.O(d).4136 CFR 212.3. The regtiations define a forest devel-

opment transportation plan as a “plan for the system ofaccess roads, trails, and airfields needed for the pro-tection, administration, and utilization of the nationalforests and other lands administered by the ForestService, or the development and use of resources uponwhich communities within or adjacent to the nationalforests are dependent.” 36 CFR 212,1(c).

4236 CFR 212.7,212.12.4336 CFR 212.104436 CFR 212.10.4536 CFR 212.9(d).‘eThe background and history of RARE II and its

predecessor, RARE I, are highly involved. A summarymay be found in Senate Committee on Energy and Nat-ural Resources, Roadless Area Review and Evaluation,Publication 95-92, February 1978, (committee print).The Forest Service has issued no rules or regulationsfor the management of the RARE II process. Policydirectives have come from Interim Directives in the For-est Service Manual or from the “RARE II Notebook”compiled by Forest Service staff personnel working onRARE II.

4742 F,R. 59688, Nov. 18, 1977. An accelerated landmanagement program is being undertaken in theTongass National Forest which contains 1,3 millionacres of roadless area. Forest Service Manual, chapter8260, Interim Directive No. 5, p. 9.

4aStatement of Dr. M. Rupert Cutler, Assistant Secre-tary for Conservation, Research, and Education, De-partment of Agriculture, committee print, supra, note46, p. 5. Environmental impact statements area normalcomponent of land management plans required by sec-tion 6 of the Forest and Rangeland Renewable Re-sources Planning Act of 1974. Forest Service decisionson access must be consistent with the land manage-ment plan.

49RARE II Notebook, Inset HI, ‘‘RARE II Process.‘Protective management will not be accomplished

through the land management planning process, supra,note 48. Most of the areas that will be included in thetwo categories presently are not used for access or anyother activity; they are considered “de novo wilder-ness,” Access or any other new activity can only bepermitted pursuant to a land management plan or byother action of the Forest Service requiring an EIS.

S] Department of Agriculture, Final Environment)Statement and Renewable Resource Program, 1977 to2020, p, 97. (1976). See also committee print, supra,note 46, p. 36, (Statement of Dr. Cutler). In June 1978the Forest Service issued the Draft EnvironmentalStatement on Roadless Area Review and Evaluation(RARE 11) consisting of a national programmatic volumeand 20 State and regional supplemental volumes.


NATIONAL WILD AND

The Wild and Scenic Rivers Act of 19681

established a national policy that selectedrivers and their surrounding environmentspossessing “outstandingly remarkable sce-nic, recreational, geologic, fish and wildlife,historic, cultural, or other similar valuesshall be preserved and protected in a free-flowing condition for the benefit of presentand future generations.”2 The National Wildand Scenic Rivers System was created to im-plement this policy. It consists of all riverunits included by congressional designationor by State action (subject to approval by theSecretary of the Interior after review by ap-propriate Federal agencies).3

ADMINISTRATION OF THE SYSTEMCongressionally designated components of

the National Wild and Scenic Rivers Systemare administered by either the Secretary ofAgriculture through the Forest Service or bythe Secretary of the Interior through one ofthe Department’s land management agencies,principally the National Park Service and the Fish and Wildlife Service. State-designatedrivers are under State administration consist-ent with the purposes of the Wild and ScenicRivers Act. There are three classifications ofrivers in the system:

1. Wild river areas—Those rivers or sec-tions of rivers, which are free of im-poundments and generally inaccessibleexcept by trail, with watersheds orshorelines essentially primitive andwaters unpolluted.

2. Scenic river areas—Those rivers or sec-tions of rivers, which are free of im-poundments, with shorelines or water-sheds still largely primitive and shore-lines largely undeveloped, but accessiblein places by roads.

3. Recreational river areas—Those riversor sections of rivers, which are readily

Note: Footnotes for this section appear on p. 88.

SCENIC RIVERS SYSTEM

accessible by road or railroad, whichmay have some development along theirshorelines, and which may have under-gone some impoundment or diversion inthe past.4

A component of the National Wild and Sce-nic Rivers Systems is managed “in such man-ner as to protect and enhance the valueswhich caused it to be included in the system,without insofar as is consistent therewith,limiting other uses that do not substantiallyinterfere with public use and enjoyment ofthese values.”5 Management plans for eachcomponent river may allow varying degreesof protection and development based on itsspecial attributes. Primary emphasis, how-ever, must be given to protecting esthetic,scenic, historic, archeologic, and scientificfeatures.’

Wild and scenic rivers under the jurisdic-tion of the National Park Service are part ofthe National Park System and are subject tolaws governing the administration of the parksystem. Components administered by the Fishand Wildlife Service are part of the NationalWildlife Refuge System and subject to alllaws applicable to wildlife refuges. The Sec-retary of the Interior may also use any gen-eral statutory authority relating to nationalparks, and any other authority available tohim for recreation and preservation purposesor for natural resources conservation andmanagement, which he deems appropriatefor the administration of any component ofthe Wild and Scenic Rivers System.7 The Sec-retary of Agriculture may use any statutoryauthority relating to the National Forest Sys-tem for purposes of the administration ofcomponents of the Wild and Scenic RiversSystem.8 Whenever there is a conflict be-tween the provisions of the Wild and ScenicRivers Act and such other authority, the morerestrictive provisions are applied.9 C o m -ponents of the National Wild and ScenicRivers System within designated wildernessareas are managed according to provisions of


both systems, and in case of conflict betweenprovisions of the two Acts, the WildernessAct provisions shall be applied.10

RIVER STUDIES

Any wild, scenic, or recreational riverarea possessing one or more scenic, recrea-tional, archeologic, or scientific values and ina free-flowing condition, or upon restorationto such condition, may be considered for in-clusion in the Wild and Scenic Rivers System.As of December 1976, 16 rivers have beendesignated as components of the system, and58 rivers have been nominated by Congressfor study. (See tables 2 and 3.) No Alaskanrivers have been designated or nominated forstudy. All Alaska National Interest Landsproposals contain some wild and scenicrivers designations. The Secretary of the In-terior and the Secretary of Agriculture areresponsible for conducting studies of allrivers nominated by Congress as potentialwild and scenic rivers, and submitting areport on the suitability of each river to thePresident, who, in turn, forwards his recom-mendation to Congress.11 Cooperation of ap-propriate State and local governments issought, and reports may be prepared as joint

Federal-State efforts. Priority is given to thestudy of those potential additions to the sys-tem where there is the greatest likelihood ofdevelopment and there is the greatest propor-tion of private lands.12 Proposals for inclusionof a river in the system must be accompaniedby a report to Congress and the Presidentshowing the characteristics of the area thataffect its suitability for inclusion:

● The current status of land ownershipand use;

● The effect of inclusion on potential landand water uses;

. The proposed administering agency;

● The extent to which cost and administra-tion may be shared with State or localgovernment; and

s The estimated costs of acquiring neces-sary lands and interests in land and ad-ministrative costs .13

Prior to recommendation to Congress, thereport is reviewed by the Secretaries of theInterior, Agriculture, and the Army, and theChairman of the Federal Energy RegulatoryCommission (FERC, formerly the FederalPower Commission), and the heads of otheraffected Federal agencies; and if non-Federal

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

9.

10.

11.12.

Lower Saint Croix, Minn. (added by Congress 13.in 1972)Chattooga, N. C., S. C., and Ga. (added by 14.Congress in 1974)Rapid, Idaho (added by Congress in 1975) 15.Upper Middle Snake, Idaho and Oreg. (addedby Congress in 1975) 16.

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

Allagash Wilderness Waterway, Maine (addedby State action in 1970)Little Miami, Ohio (added by State action in1973)Little Beaver, Ohio (added by State action in1975)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 obtainedfrom appropriate State agencies.


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

Designations made in October 1968

Allegheny, Pa.Bruneau, IdahoBuffalo, Term.Chattooga, N. C., S. C., and Ga.Clarion, Pa.Delaware, Pa. and N.Y.Flathead, Mont.Gasconade, Mo.Illinois, Oreg.Little Beaver, OhioLittle Miami, OhioMaumee, Ohio and Ind.Missouri, Mont.Moyie, Idaho

Designations made in January 1975

28.29.30.31.32.33.34.35.36.37.38.39.40.41.42.

American, Cal if.Au Sable, Mich.Big Thompson, Col.Cache la Poudre, Col.Cahaba, Ala.Clark’s Fork, Wyo.Colorado, Col. and UtahConejos, Cot.Elk, Col.Encampment, Col.Green, Col.Gunnison, Col.Illinois, Okla.John Day, Oreg.Kettle, Minn.

15.16.17.18.19.20.21.22.23.24.25.26.27.

43.44.45.46.47.48.49.50.51.52.53.54.55.56.

Obed, Term.Penobscot, MainePere Marquette, Mich.Pine Creek, Pa.Priest, IdahoRio Grande, Tex.Saint Croix, Minn. and Wis.Saint Joe, IdahoSalmon, IdahoSkagit, Wash.Suwanee, Ga. and Fla.Upper Iowa, lowaYoughiogheny, Md. and Pa.

Los Pines, Col.Manistee, Mich.Nolichuckey, Term. and N.C.Owyhee, South Fork, Oreg.Piedra, Col.Shepaug, Corm.Sipsey Fork, West Fork, Ala.Snake, Wyo.Sweetwater, Wyo.Tuolumne, Cal if.Upper Mississippi, Minn.Wisconsin, Wise.Yampa, Col.Dolores, Col.

Designation made in December 197557. 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 studyare specified in 16 U.S.C. 1276, as amended.

lands are involved, the Governor(s) of the af- PROTECTIONS AFFORDED WILDfected State(s). The comments received are AND SCENIC RIVERSincluded in the submission to the Presidentand Congress.14 The final determination is Restrictions on Private Developmentmade 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


tection. Some activities of private landown-ers, which might jeopardize the character ofthe river, can be restricted by the purchase ofland or the acquisition of scenic easements”within the boundaries of the administrativeunit. The Act authorizes the appropriation offunds for the acquisition of land and sceniceasements, 17 but it places some stringentlimits on the scope of this approach.

The first limit is found in the boundaries ofthe administrative unit. Boundaries may in-clude no more than an average of 320 acresper mile on both sides of the river,l8 i.e., anaverage of one-quarter of a mile on a side.Within these boundaries, the Secretaries ofthe Interior and Agriculture cannot purchasetitle to an average of more than 100 acres permile. 19 Furthermore f they may not condemnproperty if more than 50 percent of the totalarea is owned by Federal, State, and localgovernments, 20 nor may they condemn anyproperty within an incorporated city, village,or borough that has in force “satisfactoryzoning ordinances” designed to protect theriver area.21 In areas of extensive privatelandownership, regulation by purchase must,of necessity, depend on the purchase or con-demnation of scenic easements within theriver area boundaries.22

Restrictions on Water Resource Projects

The plenary Federal power over navigablewaters forms the basis for a second type ofprotection. The Act restricts water resourcesprojects and other activities which directlyaffect river areas of the system. FERC maynot license water resources or other projects“on or directly affecting a river in thesystem. “23 Other Federal agencies may notassist projects which would have a “directand adverse effect on the values for whichsuch river was established.”24 However, theAct does not prohibit projects above or belowthe designated river area that do not invadethe area or unreasonably diminish the scenic,recreational, and fish and wildlife valuespresent in the area on October 2, 1968, thedate the Act was passed.25 No Federal agencymay recommend authorization of, or appro-

priations for, a water resources project hav-ing a direct and adverse effect on protectedvalues of a component river area withoutnotifying the Secretary of the administeringdepartment and Congress of its intention andthe possible effects on the protected values.26

Rivers nominated for potential inclusion inthe system are also subject to restrictions onwater resources projects until 1978 or for 3years after nomination, whichever is later,and during any additional time necessary tocomplete study and congressional actions.27

In addition, the Secretaries of the Interiorand Agriculture and the heads of other Fed-eral agencies must review their managementpolicies and activities affecting lands undertheir jurisdiction that include, border, or abutriver areas nominated as potential compo-nents and determine the actions necessary toprotect the river area during the period ofreview with particular attention given to“scheduled timber harvesting, road construc-tion, and similar activities” which might becontrary to the purposes of the Act.28

Restrictions on Federal Land ManagementAgencies

The Act also restricts the ability of Federalland management agencies administeringunits of the system to take or permit actionsthat would detrimentally affect wild andscenic rivers.

Each river is administered for the protec-tion and enhancement of the values that jus-tified its inclusion in the system.29 Each com-ponent is also managed according to thegeneral statutory authority of the administer-ing agency with the most restrictive provi-sions of law applying in case of any conflict.30

River areas may thus become doubly or triplyprotected as wild, scenic, or recreationalrivers, as units of national conservation sys-tems, i.e., national parks, wildlife refuges, orforests, and as part of the National Wilder-ness Preservation System. The administeringagency must cooperate with the Secretary ofthe Interior and the appropriate water pollu-tion control agencies for the purpose of elimi-


nating or diminishing the pollution of watersin the component river area.31

RIGHTS-OF-WAY

The Wild and Scenic Rivers Act authorizes“easements and rights-of-way upon, over,under, across, or through any component ofthe National Wild and Scenic Rivers Sys-tem.” 32 Rights-of-way across any componentriver areas administered by the Secretary ofthe Interior are issued in accordance withlaws applicable to the National Park Sys-tem.33 Rights-of-way for components admin-istered by the Secretary of Agriculture areissued under laws relating to the NationalForest System.34 Any conditions placed on theissuance of a right-of-way or easement mustbe related to the purposes of the Wild andScenic Rivers Act.

The principal legal bases for the grant ofeasements or rights-of-way in National ParkSystem lands are found in (a) the generalauthority to manage the national parks inconformance with the purposes of preserva-tion and recreation;35 (b) the Act of February15, 1901, granting revocable rights-of-wayfor electric powerlines, water, and communi-cations projects on a finding that the use is“not incompatible with the public interest; "36

(c) the Act of March 4, 1911, which grants aright-of-way for a period of up to 50 years forcommunications and electric power systemssubject also to a finding that the project is“not incompatible with the public interest;”37

and (d) the ditches and canals acts,38 which

confer a right-of-way for drainage and irriga-tion projects subject to the filing of necessarymaps and documents and approval of thelocation as one not interfering with properoccupancy by the Government.

Easements through wild and scenic riversunits administered by the Fish and WildlifeService are to be granted under park systemlaws39 instead of the specific right-of-way pro-visions for wildlife refuge system lands.40

Rights-of-way across any wild and scenicrivers managed by the BLM would also beissued under Park Service standards, ratherthan provisions applicable solely to publiclands.

The Secretary of Agriculture has generalright-of-way authority for forest system landsunder Title V of the Federal Land Policy andManagement Act,41 and has additional au-thority to grant easements for roads andtrails under laws relating to development ofthe National Forest Transportation System.42

Other provisions of the Wild and ScenicRivers Act that are relevant to access tominerals on non-Federal land are: (a) the re-view process for potential rivers, which in-cludes an assessment of the effects of the des-ignation on the existing and potential uses ofthe lands and waters involved;43 (b) the scenicand recreational river classifications, whichallow roads and some development;44 and (c)the provision assuring the existing rights ofany State, including the right of access, to thebed of navigable waters located in a compo-nent river area.45


FOOTNOTE REFERENCES FOR NATIONAL WILDAND SCENIC RIVERS SYSTEM

’16 U.S.C. 1271 et seq.Z16 U.S. C. 1Z71. AS defined in the Wild and Scenic

Rivers Act: “ ‘Free-flowing, ’ as applied to any river orsection of a river, means existing or flowing in naturalcondition without impoundment, diversion, straighten-ing, rip-rapping, or other modification of the waterway.The existence, however, of low dams, diversion works,and other minor structures at the time any river is pro-posed for inclusion in the national wild and scenicrivers system shall not automatically bar its considera-tion for such inclusion: Provided, that this shall not beconstrued to authorize, intend, or encourage futureconstruction of such structures within components ofthe National Wild and Scenic Rivers System. ” 16 U.S.C.1286(b).

3A listing of component rivers and potential additionsto the National Wild and Scenic Rivers System is in-cluded in tables 2 and 3. A river may be included byState action if: (1) it is designated as a wild, scenic, orrecreational river pursuant to State law; (2) it is perma-nently administered by an agency or political subdivi-sion of the State without expense to the United States;and (3) the Secretary of the Interior, upon applicationby the Governor of the State, finds that it meets thecriteria in the Act and approves it for inclusion in theSystem. 16 U.S,C. 1274.

416 U.S.C. 1273(b).516 U.S,C. 1281(a).‘Id.716 U.S.C. 1281(c).’16 U.S, C. 1281(d),’16 U.S. C. 1281(c).’016 U.S. C. 1281(b).“16 U.S.C. 1275(a).“Id.“Id.1416 u.s.C. 1275(b) and(c).l$For example, eight original component rivers and

the Rapid River, Idaho and Upper Middle Snake River,Idaho and Oregon were included by direct congres-sional action. Act of December 31, 1975, Public Law94-199, section 3(a), 89 Stat. 1117,

18A scenic easement for purposes of the Wild andScenic Rivers Act, “means the right to control the use

of land (including the air space above such land) withinthe authorized boundaries of a component of the wildand scenic rivers system, for the purpose of protectingthe natural qualities of a designated wild, scenic, orrecreational river area, but such control shall not af-fect, without the owner’s consent, any regular use exer-cised prior to the acquisition of the easement. ” 16U.S.C. 1286(c),

’716 U.S.C. 1277(a).1816 u.S. C. 1274(b).’916 U.S.C, 1277(a).Z016 U.S.C. 1277(b).2’16 U.S,C. 1277(c).22 Condemnation of easements is specifically ex-

empted from the acreage limitations of 16 U.S.C.1277(a).

’316 u.S, C. 1278(a).Z.’ Id.251d.2616 U.S, C. 1278(c).2716 U,S. C. 1281,2a16 U.S.C. 1283(a).2916 U.S. C. 1281.3016 U.S.C. 1281(c).3’16 U.S.C. 1283(c).3216 U.S.C. 1284(g).331d.341d.3516 U.S. C, 1 et seq. See discussion in section on Na-

tional Parks.38Act of February 15, 1901, c. 372, 31 Stat. 790, 43

U.S.C, 959, 16 U.S.C, 79,522,37Act of March 4, 1911, c.238, 36 Stat, 1253,43 U.S.C.

961, 16 U.S.C. 5,420,523.3843 U.S.C. 946-954.3916 U.S, C, 1284(g).4016 U.S.C. 668dd(d)(l).“43 U,S.C. 1761 et seq. See discussion in section on

National Forest System.4216 U.S.C. 532-538.4316 U.S.C. 1275(a).4416 U.S.C, 1273(b).4516 U.S.C, 1284(f).


NATIONAL WILDERNESS

The Wilderness Act of 19641 created theNational Wilderness Preservation System toprovide “the benefits of an enduring resourceof wilderness”2 for the whole Nation. Con-gressionally designated wilderness areas innational parks, forests, wildlife refuges, andpublic lands are managed under special rules“for the use and enjoyment of the Americanpeople in such a manner as will leave themunimpaired for future use and enjoyment aswilderness." 3 In keeping with the purpose ofwilderness preservation, the use of wilder-ness areas is highly restricted. Statutory pro-visions for access through wilderness areasare limited, since such use, generally, i sviewed as inconsistent with the maintenanceof the primeval character of wilderness.

Section 2(c) of the Wilderness Act4 de-scribes the special character of wildernessthat the Act seeks to preserve:

A wilderness, in contrast with those areaswhere man and his own works dominate thelandscape, is hereby recognized as an areawhere the earth and its community of life areuntrammeled by man, where man himself is avisitor and does not remain.5


PRESERVATION SYSTEM

For the purposes of the Wilderness Act, a“wilderness area” is further defined as:

. , , an area of undeveloped Federal landretaining its primeval character and in-fluence, without permanent improvements orhuman habitation, which is protected andmanaged so as to preserve its natural condi-tions and which (1) generally appears to havebeen affected primarily by the forces ofnature, with the imprint of man’s work sub-stantially unnoticeable; (2) has outstandingopportunities for solitude or a primitive andunconfined type of recreation; (3) has at leastfive thousand acres of land or is of sufficientsize as to make practicable its preservationand use in an unimpaired condition; and (4)may also contain ecological, geological, orother features of scientific, educational,scenic, or historical value.6

Most of Alaska’s land unquestionably fits thischaracterization. 7

In the current debate overnational interest lands in Alaska one of themost controversial issues is how much of theland proposed for inclusion in the nat ionalconservation systems should be legislativelyclassified as wilderness.

Table 4.— Wilderness Areas in Alaska— ——

Bering Sea Wilderness—Bering Sea National Wildlife Refuge, Alaska

Bogoslof Wilderness—Bogoslof National Wildlife Refuge, Alaska

Chamisso Wilderness—Chamisso National Wildlife Refuge, Alaska

Forrester Island Wilderness—Forrester Island National Wildlife Refuge, Alaska

Hazy Islands Wilderness—Hazy Islands National Wildlife Refuge, Alaska

Saint Lazaria Wilderness—Saint Lazaria National Wildlife Refuge, Alaska

Simeonof Wilderness—Simeonof National Wildlife Refuge, Alaska

Date of Designation

Oct. 23, 1970

Oct. 23,1970

Jan. 3, 1975

Sept. 28, 1969

Oct. 23, 1970

Oct. 23, 1970

Oct. 19,1976

Tuxedni Wilderness—Tuxedni National Wildlife Refuge, Alaska

Oct. 23, 1970

90 S Analysis of Laws Governing Access Across Federal Lands

DESIGNATION OFWILDERNESS AREAS

Lands may be added to the National Wil-derness Preservation System only by an act ofCongress.8 The Wilderness Act itself does notestablish any single process to be used beforeCongress acts on potential wilderness desig-nations. Several approaches have been usedin adding to the wilderness system.

Instant Wilderness

The first approach has been called “in-stant wilderness”—certain areas are in-cluded in the system by direct congressionalaction without prior congressional nomina-tion or executive review. More than half of allwilderness designations have been made thisway. The 1964 Wilderness Act designated 54national forest areas containing some 9.1million acres,9 which had been administra-tively classified as “wilderness,” “wild,” or“canoe” areas, as the original components ofthe system. The Eastern Wilderness Act of1974,10 which applied to lands in nationalforests east of the 100 meridian, added 16areas totaling some 207,000 acres in 13 East-ern States to the system. None of these areashad been subject to any wilderness studyprocess. The Omnibus Wilderness Act of1976, 11 creating wilderness areas in the Na-tional Wildlife Refuge System and the Na-tional Forest System, also included wilder-ness designations for some areas which hadnever been part of any wilderness study. Fi-nally, the Endangered American WildernessAct12 of 1978 designated 17 wilderness areas,only 1 of which had ever been subject to wil-derness study.

Wilderness StudyThe second approach, often called “wilder-

ness study, ” was first expressed in sections3(b) and 3(c) of the Wilderness Act. Thoseprovisions directed Federal land managers tosurvey certain lands within their jurisdictionover a 10-year period and make recommenda-tions to the President on the suitability ofsuch lands for designation as wilderness.

Section 3(b) required the Forest Service tosurvey the 34 areas classified as “prim-itive”13 on the date of enactment; section 3(c)required the Secretary of the Interior toreview all roadless areas of 5,000 acres ormore in any unit of the Park System and road-less areas and roadless islands in wildliferefuges and game refuges .14

Under these provisions, the Secretaries ofthe Interior and Agriculture were required tomake reports to the President within 10years. 15 The Act mandated public notice ofany potential designations,16 hearings in theaffected areas,17 and consultation with Stateand local officials prior to making any re-port.18 The Wilderness Act required that thePresident make recommendations to Con-gress on the basis of the departmentalreports. Recommendations on at least one-third of all areas were to be made within 3years of enactment, recommendations on atleast two-thirds within 7 years, and all areaswere to be completed within 10 years.19

The study provisions in the original Act didnot establish any policies or procedures forinterim management for areas under study.None of the areas covered by sections 3(b)and 3(c) was subject to multiple-use manage-ment. Primitive areas were under protectiveForest Service management20 and the Actstated that, “Nothing contained herein shall,by implication or otherwise, be construed tolessen the present statutory authority of theSecretary of the Interior with respect to themaintenance of roadless areas within units ofthe National Park System.”2l

These studies required by the WildernessAct were completed by 1974. The ForestService is continuing a wilderness study ef-fort, the Roadless Area Review and Evalua-tion (RARE II), which grew out of difficultiesencountered in meeting the mandate of sec-tion 3(b).22 However, RARE II covers all road-less areas under the jurisdiction of the ForestService, not just areas classified as primitive,and is not subject to any timetable, nor isthere any requirement that the Presidentmake reports on the recommendations of theForest Service.


Section 603 of the Federal Land Policy andManagement Act established a new wilder-ness study program for public lands admin-istered by the Bureau of Land Management(BLM), which, in many ways, is similar to thesection 3(b) and 3(c) study .23 The entire pro-gram must be completed by October 21, 1991,but the Secretary of the Interior must makerecommendations to the President by July 1,1980, on all BLM “primitive” or “natural”areas .24

Section 603 contains two provisions notfound in the Wilderness Act. Mineral surveysmust be conducted by the Geological Surveyand the Bureau of Mines before any recom-mendation is made to the President.25 In addi-tion, an interim management policy is estab-lished.

During the period of review of such areasand until Congress has determined other-wise, the Secretary shall continue to managesuch lands according to his authority underthis Act and other applicable laws in a man-ner so as not to impair the suitability of suchareas for preservation as wilderness sub-ject, however, to the continuation of existingmining and grazing uses and mineral leasingin the manner and degree in which the samewas being conducted on the date of approvalof this Act. 26

Congressional Nominations

Finally, Congress has often acted to re-quire wilderness study of specific areas ofland. 27 Generally, when this is done the lawspecifying the study area also requires thatthe study be conducted pursuant to section3(d) of the Wilderness Act and sets a timelimit on the period for study. Most specificstudy designations also contain provisionsconcerning interim management practicesduring the study period.

Wilderness areas are, unless otherwiseprovided by Congress, managed by the agen-cy which had jurisdiction over the area im-mediately prior to its inclusion in the NationalWilderness Preservation System.28 In the De-partment of the Interior, the agencies thatmay administer components of the wilderness

system are the National Park Service, theFish and Wildlife Service, and the BLM. TheSecretary of Agriculture administers wilder-ness areas of the National Forest Systemthrough the Forest Service. Wilderness areasare subject to all general laws governing thedepartment and agency administering them,but management must be consistent with theprovisions of the Wilderness Act. Each man-aging agency is responsible for preserving thewilderness character of areas under its juris-diction. The area must be managed for thepurposes for which it was established (i.e.,park, forest, refuge, wild and scenic rivers) ina manner that will preserve its wildernesscharacter . 29 Wilderness areas are to bedevoted to the public purposes of recrea-tional, scenic, scientific, educational, conser-vation, and historical use.30

ACTIVITIES IN WILDERNESS AREAS

The provisions of the Wilderness Act andthe regulations thereunder, which control ac-tivities and uses in wilderness areas, are pro-tective and stringent. The general policy forthe use of wilderness areas as provided in theAct is:

Except as specifically provided for in thisAct, and subject to existing private rights,there shall be no commercial enterprise andno permanent road within any wildernessarea designated by this Act and, except asnecessary to meet minimum requirements forthe administration of the area for the pur-pose of this Act (including measures re-quired in emergencies involving the healthand safety of persons within the area), thereshall be no temporary road, no use of motorvehicles, motorized equipment or motor-boats, no landing of aircraft, no other form ofmechanical transport, and no structure or in-stallation within any such area .31

This general rule is subject to certain excep-tions, specifically provided in the Act. Theuse of aircraft or motorboats, where theseuses have already become established, maybe permitted to continue subject to such re-strictions as the Secretary of Agriculture


.- . 4 “Photo Credit: George Walierstein

High camp in the Wrangell Mountains

Secretary may alsosuch measures forand diseases” as he

deems desirable.32 Theprovide for the use of“control of fire, insects,deems desirable.33 Activities for the purposeof gathering information about mineral orother resources may be conducted in nationalforest wilderness areas in a reamer compati-ble with preservation of the wilderness envi-ronment. 34 National Forest and BLM wilder-ness areas are to be “surveyed on a planned,recurring basis consistent with the concept ofwilderness preservation” by the GeologicalSurvey and the Bureau of Mines under a pro-gram developed by the Secretary of the In-terior in consultation with the Secretary ofAgriculture. Reports on the mineral values, ifany, of such wilderness areas are to be madeavailable to the public and submitted to thePresident and Congress.35 Mining and mineralleasing activities are permitted to continue on

national forest wilderness areas subject toregulation by the Secretary of Agriculture.36

After 1983 the minerals in wilderness areasare withdrawn from appropriation or disposi-tion under the mining and mineral leasinglaws.

The most important exception to the gen-eral prohibitions on access in the WildernessAct is found in section 4(d)(4)37 which pro-vides:

Within wilderness areas in the nationalforests designated by this Act, (1) the Presi-dent may, within a specific area and in ac-cordance with such regulations as he maydeem desirable, authorize prospecting forwater resources , the establ ishment andmaintenance of reservoirs, water conserva-tion works, power projects, transmissionlines, and other facilities needed in the pub-lic interest, including the road construction

Ch. 4 Federal Land Management Systems .93

and maintenance essential to developmentand use thereof, upon his determination thatsuch use or uses in the specific area will bet-ter serve the interests of the United Statesand the people thereof than will its denial;38

This provision also applies to wildernessareas managed by the BLM.39 This limited ex-ception provides an institutional mechanismfor access through wilderness areas in un-usual and critical situations where such ac-cess is demonstrably in the national interest.

Livestock grazing that is established on na-tional forest and public lands wildernessareas prior to wilderness designation may becontinued subject to reasonable regulation bythe appropriate Secretary.40 Commercial ac-tivities that are proper for realizing the recre-ational and other wilderness purposes of theareas are permitted.41

The Act provides for adequate access toprivate or State owned land that is “com-pletely surrounded” by a national forest orpublic lands wilderness area, either by thegrant of such rights as are necessary or by anexchange of the surrounded land for otherfederally owned land in the State of approx-imately equal value.42

Ingress and egress to valid mining claimsand other valid occupancies “wholly within”a national forest or public lands wildernessarea is permitted subject to regulation con-sistent with the preservation of wilderness.Access to these surrounded areas is limitedto means that have been or are being custom-arily enjoyed with respect to other such areassimilarly situated .43

The concept of wilderness management de-scribed in the Act is intended to preclude theuse of wilderness areas for all inconsistentpurposes. No permanent or temporary roador other manmade structures or facilities areto be allowed except as specifically providedfor in the Act. A wilderness area is to bepreserved in its primitive, unaltered state.Most means of access, even footpaths, are tosome extent inconsistent with preservation ofwilderness as an area “untrammeled byman;” however, necessary access for pur-

poses of wilderness recreation and manage-ment is clearly intended.44 New access routesor intensive use of existing routes for any pur-pose could be detrimental and destructive ofwilderness character. Accordingly, access inwilderness areas may be strictly limitedwhen necessary.

Access uses of wilderness areas recog-nized in the Wilderness Act are limited to thefollowing:

a.

b.

c.

d.

e.

f.

g.

h.

Preexisting private rights (It is as-

sumed that “private” includes Stateand local governments);

Wilderness recreation and manage-ment access routes and facilities;

Emergency purposes;

Established use of motorboats and air-craft where use. predates wildernessdesignation— subject to regulation bythe management agency;

Presidential authorization of the use ofnational forest and public lands wilder-ness areas for projects and facilities inthe national interest;

Adequate access rights for State andprivate lands completely surroundedby a national forest or public lands wil-derness area;

Access to valid mining claims and othervalid occupancies by means that arecurrently or customarily enjoyed insimilarly situated areas; and

Special provisions applicable to spe-cific wilderness areas by congressionalaction.

Additional authorization for access uses ofwilderness areas may be found in “the otherpurposes for which an area was estab-lished;” 45 that is, use as a national park, awildlife refuge, a forest, public lands, wildand scenic rivers, or associated uses of thoseland classification systems. However, anysuch use must be consonant with wildernesscharacter. 46 Even if access use of wildernessareas within each of the land management

94 ● Analysis Of Laws Governing Access Across Federal Lands

systems is found to be compatible with provi-sions of the Wilderness Act, it must also com-ply with the laws and regulations of the landmanagement agency and land classificationsystem.

PARK WILDERNESS

The National Park Service recognizes theestablished use of aircraft and motorboatsthat predates the creation of wildernessareas, and includes provisions relating tosuch access in its recommended wildernesslegislation. However, all preestablished mo-torized modes of access to wilderness areasare not necessarily recognized.47 Motorizedvehicles are banned in designated wildernessareas in the park system, except for minimumaccess and management purposes and emer-gencies. As discussed in the section on theNational Park System, rights-of-way and ac-cess permits for park areas are based on thegeneral authority to manage and regulate thepark system, the 1901 Act, the 1911 Act, andthe ditches and canals acts.48 These Acts re-quire that the proposed use be compatiblewith the public interest or not interfere withGovernment use of the reservation. Plainly,most access uses would be contrary to the ex-plicit provisions of the Wilderness Act andwould probably be denied on that basis. Anygrant of access through a wilderness areathat is not consistent with wilderness preser-vation and is not based on the Wilderness Actexceptions might be found to be unlawful onjudicial review.

Access is assured to private lands com-pletely surrounded by national park wilder-ness.49 Such access rights are, however, sub-ject to regulation by the Park Service. Whereaccess proves to be incompatible with wilder-ness preservation or where the private ownerso desires, the surrounded lands may be ex-changed under laws applicable to the wilder-ness system and the park system. Mining in-holdings and other valid occupancies whollywithin a park wilderness area are alsoassured access as consistent with the Wilder-ness Act and by means customarily enjoyed in

similarly situated areas.50 The Mining in theParks Act of 1976 allows the Secretary of theInterior to regulate mining activities withinthe parks, including wilderness areas.51 Anyother access through a national park wilder-ness area, as through a national park, wouldrequire congressional authorization. The lim-ited Presidential exception of the WildernessAct does not apply to national parks.

WILDLIFE REFUGE WILDERNESS

The National Wildlife Refuge System wil-derness areas are administered by the Fishand Wildlife Service. Refuge system wilder-ness regulations follow provisions of the Wil-derness Act and do not allow temporary orpermanent roads, manmade structures, orthe use of motorized transport within wilder-ness areas.52 Subject to such restrictions asthe Director may impose, the established useof aircraft and motorboats may be continuedin refuge wilderness areas.53 Access to pri-vate property and valid occupancies withinrefuge wilderness areas is recognized. Ade-quate access is defined as the combination ofmodes and routes of travel that will bestpreserve the wilderness character of thelandscape. The designated mode of travelmust be reasonable and consistent withaccepted, conventional, and contemporarymodes of travel in that vicinity. Access usemust be consistent with the reasonable pur-poses for which the land is held. The Directorwill issue access permits designating themeans and route of travel that will preservethe area’s wilderness character.54

Wildlife refuge wilderness areas are alsosubject to general refuge regulations as wellas special regulations and orders issued forparticular refuges. These regulations restrictthe operation of aircraft, motorized vehicles,and boats to designated areas and routeswithin a refuge, and provide that such accessmay be restricted and limited as necessary.55

Right-of-way authorization for wildlife refugeareas 56 requires that the access use be com-patible with the purpose for which the indi-


vidual re fuge was es tabl ished. Other r ight -of-way provisions in the 1901 Act, the 1911Act, and the ditches and canals acts, whichare applicable to wildlife refuges, also mustmeet the compat ibi l i ty s tandard. However ,section 668dd(d) and the regulations on ref-uge rights-of-way appear to be controlling. 57

S i n c e a w i l d e r n e s s a r e a i s e s t a b l i s h e d t op r e s e r v e w i l d e r n e s s c h a r a c t e r i s t i c s , a c c e s suses that are deleterious to these values arenot consistent, and, therefore, do not meet thestandards required for issuance. 58 There is noprovision in the Wilderness Act for Presiden-tial national interest authorizations of accessuse of refuge areas. Any access use of refugewilderness would, if incompatible with wil-derness status, require congressional ap-proval.59

BLM WILDERNESS

Wilderness areas on public lands admin-istered by the BLM are subject to the provi-sions of the Wilderness Act applicable to na-tional forest wilderness areas.60 The FederalLand Policy and Management Act of 197661--the BLM Organic Act— specifically excludeswilderness areas from the right-of-way au-thority granted to the Secretary of the In-terior for public lands.62 Any access use musttherefore be consistent with the purposes ofwilderness preservation and recreation or beincluded in one or more of the specific excep-tions to the Wilderness Act. These exceptionsrecognize existing private rights, preestab-lished use of aircraft and motorboats within agiven area, and access use in emergency situ-ations. The President may authorize use ofBLM wilderness areas for projects in the na-tional interest.63 Any other access use re-quires congressional authorization.

FOREST WILDERNESS

National forest wilderness areas are ad-ministered by the Forest Service of the De-partment of Agriculture. Regulations issuedby the Forest Service for administration of

wilderness areas64 provide that “except asprovided in the Wilderness Act, or subse-quent legislation establishing a particularwilderness unit . . . there shall be in the Na-tional Forest Wilderness . . . no temporary orpermanent roads; no aircraft; no dropping ofmaterials, supplies, or persons from aircraft;no structures or installations; and no cuttingof trees for nonwilderness purposes."65 TheChief of the Forest Service may permit thelanding of aircraft and use of motorboatswithin any wilderness where these uses wereestablished prior to wilderness designation.66

Maintenance of landing strips, heliports, andhelispots, which preexist wilderness designa-tion, may also be allowed.67

Adequate access to surrounded State andprivate lands is defined in the regulations asthe combination of routes and modes of travelthat will, as determined by the Forest Serv-ice, cause the least lasting impact on theprimitive character of the land, and which, atthe same time, will serve the reasonable pur-poses for which the surrounded land is heldor used. Access by routes or modes of travelnot available to the general public must beauthorized in writing by the Forest Service.The authorization prescribes the means andthe routes of travel to and from the lands andsets forth the conditions necessary to pre-serve the wilderness characteristics whileallowing adequate access.68

Persons with mining claims or other validoccupancies wholly within forest wildernessareas are permitted access by means consist-ent with the preservation of wilderness thatare or have been customarily used for othersuch occupancies surrounded by national for-est Wilderness.69 When appropriate, the For-est Service will issue an access permit speci-fying the mode and route and any protectiveconditions. 70

The Wilderness Act provides that thePresident may allow the use of a national for-est wilderness area for projects in the na-tional interest.” Wilderness areas are specif-ically excluded from the right-of-way author-izat ion granted to the Secretary of Agricul -


ture in Title V of the Federal Land Policy andManagement Act of 1976 which is the com-prehensive right-of-way authority for na-tional forests.72 Easements for roads underthe provisions for the development of the Na-tional Forest Transportation System73 wouldappear to be precluded by the prohibition ofthe Wilderness Act that there be no road inany wilderness area.74 Congressional author-ization is needed for any proposed access usethat does not come under one or more excep-tions to the Wilderness Act.

WILD AND SCENICRIVERS WILDERNESS

The National Wild and Scenic Rivers Sys-tem75 is a land classification system, which,like the National Wilderness PreservationSystem, does not have a separate manage-ment agency. Instead, wild and scenic riversare managed by the Forest Service, the Na-tional Park Service, the Fish and WildlifeService, or the BLM. Wild and scenic riverswithin wilderness areas are managed ac-cording to provisions applicable to both sys-tems, and, in the event of conflict, the Wilder-ness Act provisions prevail.76 Access throughor over wild and scenic rivers areas that arealso components of the wilderness system isgranted under the authority of the managingagency as interpreted in light of both the Wildand Scenic Rivers Act and the WildernessAct. 77 Access over river areas managed bythe Department of the Interior may begranted according to the rules applicable tothe National Park System. Access permits forcomponents administered by the Secretary ofAgriculture are issued under laws applicableto the National Forest System.78

MANAGEMENT OF WILDERNESSSTUDY AREAS

The entire National Wilderness Preserva-tion System now comprises approximately 16million acres, which is a small fraction of allroadless areas in the United States. The

Forest Service, in its RARE II program, isevaluating over 66 million acres of land todetermine its suitability for designation aswilderness. 79 It is estimated that the BLMwilderness review mandated by section 603of the Federal Land Policy and ManagementAct of 1976 will evaluate over 120 millionroadless acres and 13,000 roadless islands.80

This land will be studied for wildernesspotential, but none of it has as yet been for-mally designated as a wilderness study area.

During the period of initial evaluation andup to final disposition of the wilderness rec-ommendation by the Congress, these landswill be in some form of restrictive manage-ment. While it is clear that multiple use man-agement will not be practiced, it is difficult toascertain exactly what standards will beused in managing wilderness study areas.

There is some statutory guidance on themanagement of BLM lands under wildernessstudy. Section 603(c) of the BLM Organic Actprovides:

The Secretary shall continue to managesuch lands according to his authority underthis Act and other applicable law in a man-ner so as not to impair the suitability of suchareas for preservation as wilderness, sub-ject, however, to the continuation of existingmining and grazing uses and mineral leasingin the manner and degree in which the samewas being conducted on the date of approvalof this Act. Provided, that in managing thepublic lands the Secretary shall by regula-tion or otherwise take any action required toprevent unnecessary or undue degradationof the lands and their resources or to affordenvironmental protection.81

Preliminary indications are that BLM intendsto apply a strict interpretation of this provi-sion to all proposals for new activity.82

There is less statutory guidance with re-spect to Forest Service lands. In the EasternWilderness Act, Congress designated 17 wil-derness study areas in national forests. TheAct stated:

Nothing in this Act shall be construed aslimiting the authority of the Secretary of


Agriculture to carry out management pro-grams development, and activities in ac-cordance with the Multiple-Use Sustained-Yield Act of 1960 within areas not desig-nated for review in accordance with the pro-visions of this Act.83

Presumably, this means that almost all landin the RARE II inventory of potential wilder-ness areas is subject to management underthe principles of the Multiple-Use Sustained-Yield Act (although one of the uses specifiedi n t h a t A c t i s t h e p r e s e r v a t i o n o f w i l d e r -n e s s ) .84

The Forest Service has indicated that i twould not approve any use inconsistent withwilderness on an existing roadless area with-out filing an environmental impact statement,e i ther with the permit or l icense approvingthe use or as a required part of a land man-agement p lan .85

The question of authorizing nonwildernessuses is closely related to the problem of re-m o v i n g l a n d s f r o m p o t e n t i a l w i l d e r n e s sstatus without a negat ive determinat ion byCongress . Both the Forest Service and theBLM have indicated a desire quickly to iden-tify roadless areas that should not be recom-

mended for wilderness status, and to returnthem to multiple use management. The me-chanics of this process have not been com-pletely worked out. BLM officials have in-dicated that they do not presently intend toprepare environmental impact statements onthe decision not to recommend an area forfurther study.86 Forest Service policy appearsto be similar.87 The prospect of litigation overparticular areas seems inevitable.88

These decisions concerning positive eval-uation and negative evaluation of potentialstudy areas are enmeshed in the new landmanagement planning procedures that bothagencies are now being required to take forthe first time. Plans must be filed for everymanagement unit in both systems.89 The For-est Service allows land to drop out of theRARE 11 inventory if a management plan isfiled that provides for nonwilderness use.90

This meets the requirement of the out-of-court settlement that led to RARE II; suchplans are always accompanied by environ-mental impact statements. BLM—which wasrequired to prepare such plans in more re-cent legislation91 —has not yet indicated if itintends to use the plans as a mechanism toremove areas from potential wilderness pro-tections.

FOOTNOTE REFERENCES FOR NATIONAL WILDERNESSPRESERVATION SYSTEM

’16 U.S,C. 1131-1136,216 U.S.C. 1131(a).31d.416 U.S.C. 1131[c).51d.‘Id.7The Joint Federal-State Land Use Planning Commis-

sion for Alaska estimates that about zoo million acresof Federal lands are of “primitive” character and thereare about 75,OOO acres in existing wildlife refugesclassified as wilderness. See the D-2 book inventory ofAlaska land values in Federal-State Land Use PlanningCommission for Alaska, “The D-2 Book” Lands of Na-tional Interest in Alaska (May 1977) at p. 8, Alaskawilderness areas are listed in table 4.

816 U.S. C. 1132(e). As of February 1978, there were177 congressionally designated wilderness areas en-

compassing approximately 16 million acres. Ninety-twowilderness areas had never been the subject of wilder-ness reviews, H, Rept. 95-1045 pt. I., pp. 134-35 (1978).

916 U,S. C. 1132(a).IOpublic Law 93-622, 88 Stat, 2096, Jan. 3, 1975.‘lPublic Law 94-557,90 Stat. 2633, Oct. 19, 1976.‘zPublic Law 95-327,92 Stat. 40, Feb. 14, 1978.’316 U.S.C. l132(b). A national forest “primitive

area” is subject to protective management similar tothat for wilderness areas. See 36 CFR 293.17.

1416 U.S,C. 1132(c). A roadless area is defined by In-terior Department regulations as “a reasonably com-pact area of undeveloped Federal land which possessesthe general characteristics of a wilderness and withinwhich there is no improved road that is suitable forpublic travel by means of four-wheeled, motorized vehi-cles intended primarily for highway use. ” 43 CFR


19.2(e). Roadless island means a roadless area that issurrounded by permanent waters or that is markedlydistinguished from surrounding lands by topographicalor ecological features such as precipices, canyons,thickets, or swamps. 43 CFR 19.2(f).

’516 U.S.C. l132(b) and 16 U.S.C. 1132(c).“16 U,S.C. l132(d)(l)(A).“16 U,S.C. l132(d)(l)(B).’816 U.S.C. 1132(d)(l)(C).’916 U,S,C. l132(b) and 16 U.S.C. 1132(c).2036 CFR 293.17.z116 U.S,C, 1132(c).Zzsee Sjerra (lub v. Butz, 349 F. SUpp. 934 (N.D. Cal.

1972), Wyoming Outdoor Coordinating Council v, Butz,484 F. 2d 1244 (Ioth Cir. 1973), and Senate Comrm onEnergy and Natural Resources, Roadless Area Reviewand Evaluation (RARE II), Serial No. 95-92, (CommitteePrint 1978), p. 5.

2343 U,S, C. 1782(a).241d,zsIdo

2643 U.S.C. 1782(c).Zrsee, for example, Act of October 19, 1976, public

Law 94-557, section 3,90 Stat. 2635; Act of October 20,1976, Public Law 94-567, section 5, 90 Stat. 2665. Seenote following 16 U. S.C.A. 1132 (1977 supp.), p. 32.

2’16 U.S.C. l131(b).2916 U.S.C, 1133(b).3oId,3116 U.S.C. 1133(c).3z16 U,S. C. 1133(d)(l). The Secretary of the Interior

establishes the conditions for the use of planes andmotorboats in wilderness areas under his jurisdiction.See, infra, note 47.

331d.3416 U.S.C. l133(d)(2).‘sId.3616 U.S.C, l133(d)(3).3716 U.S.C. 1133(d)(4).~qd.3043 U,S,C. 1782(c).4016 U.S.C. 1133(d)(4).4116 U.S, C. 1133(d)(6).4216 U.S,C. 1134(a). Adequate access is defined in

Fish and Wildlife Regulations to mean the combinationof modes and routes of travel that will best preserve thewilderness character of the landscape. 50 CFR 35,13.

4316 U.S.C. 1134(b).44See 16 U.S.C. 1133(c), l133(d)(l)(6).4516 U.S.C. l133(b).461da47Department of the Interior, National Park Service,

Management Policies, 1975, p. VI-6, cited in Krutillaand Rice, “Management Systems, Land Classifications,and Use Restrictions” reprinted in House Comm. on In-terior and Insular Affairs, Subcomm. on General Over-sight and Alaska Lands. Background ln~ormation forAlaska Lands Designations, (Committee Print No. 4)95th Cong., 1st sess., p. 174 (1977).

48See section on National parks.

4916 U.s.c. 1 laq(a).5016 U,s.c. l13@],

51 lfj u.S. C. 1901 et seq.SZ50 CFR 35.5.5350 CFR 35.5(b).5450 CFR 35.13.s350 CFR pts. 25-29.5616 U.S.C. 668dd(d).575(3 CFR 19.21-1(;);~asee DeDar@ent of the Interior, Fish and Wildlife

Ser~ce, Final Environmental Statement on the Oper-ation of the National Wildlife Refuge System (1976).

s943 U.S, C, 1782(c).’43 U.S.C. 1701 et seq.’143 U.S,C. 1761(a).6216 u.S.C. l133(a] and(d).6316 U.S,C, l133(d)(4).“36 CFR pt. 293.‘s36 CFR 2936.“36 CFR 293.6(d).“Id.’836 CFR 293.12.‘g36 CFR 293.13.‘“Id.7’16 U.S.C. 1133(d)(4).7243 U.S. C, 1761(a).7316 U.S,C. 532-538, 16 U.S.C. 1608.’416 U,S.C. 1133(C).7316 u.S. C. 1271 et seq.7’16 U.S,C. 1281(b).7716 U.S.C. 1284(g) and 16 U.S.C. 1281(b).7’316 U.S,C. 1284(g).7’42 F.R. 59688, Nov. 18, 1977.‘Hearings on the Federal Land Policy and Manage-

ment Act and Grazing Fee Moratorium of 1977 Beforethe Subcomm. on Indian Affairs and Public Lands of theHouse Comm. on Interior and Insular Affairs, 95thCong., lst. sess., Serial No. 95-25 (1978) at p. 103.(“Hearings”).

8143 U.S.C, 1782(c).e~see Jan, 9, 1978, Memorandum of the Deputy SO-

licitor, “Application of Mining and Grazing Laws toAreas under Review for Inclusion into Wilderness Sys-tem: Section 603 Federal Land Policy Management Actof 1976” reprinted in Hearings, supra, note 80, pp.131-44. BLM has indicated that areas which meet theminimum criteria for wilderness will be subject to strin-gent interim protection. A recent letter to a permit ap-plicant reflects this policy: “Those activities which areof a permanent nature or not easily rehabilitated . . .camot be allowed until a formal wilderness review ofthe areas has been completed. ” Letter from Depart-ment of the Interior, Bureau of Land Management,Fairbanks District Office to W. G. M., Inc., dated Apr.14, 1978 provided by Dr. E, Beistline, Dean of the Col-lege of Mineral Industries, University of Alaska, a mem-ber of the assessment advisory panel.

a’fiblic Law 93-622, section 4(d), 88 Stat. 2098.8416 U.S.C. 1604(e)(l), added by the National Forest

Management Act of 1976, Public Law 94-588, 90 Stat,


2949, Oct. 22, 1976, implicitly amends the Multiple-UseSustained-Yield Act of 1960 to include the preservationof wilderness:

“In developing, maintaining, and revising plansfor units of the National Forest System pursuant tothis section, the Secretary shall assure that suchplans: (1) provide for multiple use and sustainedyield of the products and services obtained there-from in accordance with the Multiple-Use Sus-tained-Yield Act of 1960 and, in particular, in-clude coordination of outdoor recreation, range,timber, watershed, wildlife and fish, and wilder-ness. ”Bssee Forest Service, RARE 11 Notebook, P“ III-A!

Forest Service, Forest Service Manual, Chapter 8260,Interim Directive No. 5 (July 21, 1977), p. 3, section(8260)(b)(l)(f).

8@Departrnent of the Interior, Bureau of LandManagement, Draft Wilderness Review Procedures,

Feb. 27, 1978, p. 13. “Since legislation will be requiredfor an area to be included in the National WildernessPreservation System, the report for each study area be-ing recommended as suitable will be accompanied byan environmental assessment record or environmentalimpact statement. An environmental assessment rec-ord or environmental impact statement will not be re-quired for areas recommended as nonsuitable. ”

BTForest Service, RARE II Notebook, “RARE II Eval-uation,” figure 1. However, some areas will drop out ofthe RARE II inventory after filing of a land managementplan that contains an environmental impact statement.

‘aThe cases listed, supra, note 22 seem to indicatethat an agency decision to allow development or otheractivity in a previously pristine area would require anenvironmental impact statement.

’916 U.S.C. 1604.‘Supra, note 85.9’43 U.s. c. 1712.

5

Federal Laws AffectingAlaska Lands and Resources

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Chapter 5.--FEDERAL LAWS AFFECTING ALASKA LANDS AND RESOURCES

5.

FIGURE

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103103104106107107107108109112115115117121121

122123

125129129130132134

PageApproximate Boundaries of Native Regional Corpora-tions Established Under ANCSA and Estimated CombinedRegional and Village Corporation Entitlements . .......118

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5Federal Laws Affecting

Alaska Lands and ResourcesALASKA STATEHOOD ACT

On January 3, 1959, Alaska became the49th and largest State of the Union,] some 90years after the District of Alaska was pur-chased for $7 million from Russia2 and some47 years after it became an organized ter-ritory, 3 The Alaska Statehood Act4 was ap-proved on July 7, 1958 following more than adecade of active congressional consideration.This approval came only after the major ob-jections to statehood had been overcome—the lack of contiguity with the rest of theStates, a small population, and economic de-pendency on Federal Government expendi-tures for construction projects and militarybases.5 Congressional concern over the last ofthese objections resulted in provisions en-dowing the State with unprecedented grantsof public lands and a generous share ofFederal revenues from mineral leases and thePribilof Island fur trade.6 The House reporton the Statehood Act indicates that the intentof these provisions was:

To enable Alaska to achieve full equalitywith existing States, not only in the technicaljuridical sense, but in practical economicterms as well. It does this by making the newState master in fact of most of the naturalresources within its boundaries, and makingprovisions for appropriate Federal assist-ance during the transition period. ’


This section examines the major provisions ofthe Alaska Statehood Act, its legislative in-tent, and the history of the implementation ofits promises.

The Alaska Statehood Act set forth the pro-cedural requirements necessary for admis-sion.8 Upon satisfaction of these require-ments, Alaska was admitted into the Union on“an equal footing with all other States in allrespects whatever. ” The new State includedall of the lands and territorial waters of theTerritory of Alaska.9 Alaska was admitted tothe Union on January 3, 1959, when PresidentEisenhower issued a Presidential proclama-tion that all the procedural requirements forstatehood had been satisfied .10

NATIVE CLAIMS

As a compact with the United States, sec-tion 4 of the Statehood Act requires that theState and the people of Alaska disclaim anyrights to any land, the right or title to which isheld by the United States, except for thoselands granted or confirmed by the StatehoodAct.11 Alaska also disclaims any rights to anylands or other property (including fishingrights) that are held by Alaska Natives or bythe United States in trust for them.12 T h e

103


United States retains absolute jurisdictionover these Native lands. These Native landsare not subject to State taxation except asprovided by Congress.13 Lands that are con-veyed to an Alaska Native without restrainton alienation under the Alaska Native Allot-ment Act are not subject to this absolute Fed-eral jurisdiction and may be treated substan-tially the same as other private lands.14

The settlement of Native claims was ex-pressly deferred. The Statehood Act specifi-cally provides that it does not affect or ad-dress the validity of any Native claims. “Anysuch claim shall be governed by the laws ofthe United States applicable thereto.”15 TheHouse report states that this provision relatesto the issue of Native claims:

Congress does not concern itself with thelegal merits of indigenous rights but leavesthe matter in status quo for either furtherlegislative action or judicial determination.16

Conflicts over Native land claims eventuallyled to a virtual freeze on State selection dur-ing the sixties and threatened to impede con-struction of the Trans-Alaska Oil Pipeline.17

These claims were extinguished by directcongressional action in 1971 by the AlaskaNative Claims Settlement Act18 (ANCSA).Alaska Natives received, in exchange, theright to select 44 million acres of public landand a Native fund of $962.5 million to be paidover a period of years.19 Native selectionrights were given priority over State selectionrights. However, State selections that weretentatively patented, tentatively approved, oridentified by the State prior to January 17,1969 are recognized and protected byANCSA.20

LAND AND REVENUE GRANTS

Section 6 of the Alaska Statehood Actgrants 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 Federallands .2’ It also confirms previous grants to theterritory of Alaska and transfers certain Fed-eral lands and buildings to the State. Exten-sion of the Submerged Lands Act of 1953gave Alaska title to from 35 million to 40million acres of submerged lands under theTerritorial seas and inland navigable wa-ters. 22 The Statehood Act also conferred onAlaska the right to receive a generous portionof Federal revenues from mineral leasing onFederal lands23 as well as a share of the reve-nues of the Pribilof Island fur trade.24 All landselections are to be made within 25 years ofadmission, that is, by 1984.25 The StatehoodAct does not affect:

Any valid existing claim, location, or entryunder the laws of the United States, whetherfor homestead, mineral, right-of-way, orother purpose whatsoever, or shall affect therights of any such owner, claimant, locator,or entryman to the full use and enjoyment ofthe land so occupied.26

Any lands subject to such valid existing rightsare not available for State selection.

Section 6(a) granted the right to select up to“400,000 acres from lands within nationalforests in Alaska which are vacant and unap-propriated at the time of their selection.”27

Alaska was also given the right to select anadditional 400,000 acres from “public landswhich are vacant, unappropriated, and unre-served at the time of their selection.”28 All thelands selected under these grants must be“adjacent to established communities orsuitable for prospective community centerand recreation areas.”29 All selections mustbe approved by the Secretary of the Interior,and national forest lands must be approvedby the Secretary of Agriculture.30

The existing national forests in Alaska arethe Tongass National Forest and the ChugachNational Forest. The Alaska Statehood Actdoes not restrict State selection rights tothose national forests existing on the date ofadmission. A n y n a t i o n a l f o r e s t l a n d s i nAlaska could be selected by the State undert h e c o m m u n i t y e x p a n s i o n a n d r e c r e a t i o n

grants of section 6(a)—subject to the ap-proval of the Secretary of Agriculture.

Alaska was also given the right to select102 ,550 ,000 acres of publ ic lands that were“vacant , unappropriated, and unreserved atthe time of their selection." 31 These select ionsmust also be completed within 25 years of ad-mission. All lands available for selection ares u b j e c t t o v a l i d e x i s t i n g r i g h t s , i n c l u d i n gNative claims based on aboriginal use or oc-cupancy, mining claims, homesteads, or equi-table c la ims.32

The Act did not restrict the power of theU.S. Government to dispose of Federal landsin order to accommodate the State selectionrights. The United States is free to make addi-tional reservations or withdrawals of Federallands for various purposes, or to sell or dis-pose of Federal lands under the public landl a w s , t h e m i n e r a l l e a s i n g l a w s , a n d o t h e ra u t h o r i t i e s . T h u s , u n t i l t h e S t a t e a c t u a l l yse lects lands or communicates i t s intent toselect particular tracts, the lands are open toother disposition.

The avai labi l i ty of publ ic lands for Stateselection is further limited by the restrictionson State selections in an area in northern andwestern Alaska where the Pres ident i s au-thorized to make national defense withdraw-a l s .33 No State selections may be made in thisregion without the approval of the Presidentor his designate. In practice, no State selec-tions north or west of this national defensel ine known as the Porcupine-Yukon-Kusko-kwim line or PYK line have been rejected. 34

To date , the State of Alaska has se lecteda p p r o x i m a t e l y 7 2 m i l l i o n a c r e s o f p u b l i clands . The Federal -State Land Use PlanningCommission has observed that, based on theemerging pattern, the State se lect ion pol icyhas three principal objectives:

●

●

●

provision of lands to meet existing andfuture settlement needs;

control of lands a long major highwaycorridors; and

selection of lands with high potential fornatural resource development .35

106 • . Analysis of Laws Governing Access Across Federal Lands

MINERAL RIGHTS

The Alaska Statehood Act provides that alllands granted or confirmed under the Act in-clude the full mineral rights.36 The Act fur-ther stipulates that these land grants aremade on the condition that, in all subsequentconveyances of selected lands, the State mustreserve all mineral rights and the right toenter and to remove the minerals.37 The Statemay never sell nor convey the mineral rights.The Act authorizes the Federal Governmentto initiate forfeiture proceedings againstState lands conveyed without such reserva-tion.38

The State of Alaska has a system of locat-able and leasable minerals similar in many

respects to the Federal mining and mineralleasing laws.39 Locators on State lands re-ceive the right to develop certain mineralsfound there. All statehood lands are conveyedwithout the mineral rights subject to the rightof the State to enter and extract the minerals.Alaska has closed certain areas to minerallocation and leasing where mineral extrac-tion might conflict with surface uses of thelands. 40

As a further “incentive” to the develop-ment of Alaska’s land and resources, section6(g) permits the State to execute conditionalleases on mineral lands after a selection hasreceived the tentative approval of the Secre-tary of the Interior.41

Photo Cred/f: OTA Staff

The Kennicott Copper Mine near McCarthy, Wrangell-St. Elias region, producedhigh-grade copper concentrate from 1911 to 1938

Ch. 5 Federal Laws Affecting Alaska Lands and Resources ● 107

Under section 6(h), Alaska received theright to select public lands that were subjectto outstanding leases under the Mineral Leas-ing Act of February 25, 1920, or the AlaskaCoal Leasing Act of October 20, 1914.42 Thisselection right must be exercised within 10years of admission. If the State selects alllands under such lease, permit, or contract, itthen receives all the interests of the UnitedStates in the leased areas including the rightto all leasing proceeds.43 If, however, theState selects only some of such mineral lands,the mineral rights are reserved by the UnitedStates and do not pass to the State until ter-mination of the lease, permit, or contract.44

The continued validity of any outstandinglease, permit, or contract on the lands se-lected by the State is protected.

SUBMERGED LANDS

Section 6(m) of the Statehood Act extendsthe Submerged Lands Act of 1953 to the Stateof Alaska.45 Under this provision, title to“lands beneath the navigable waters” withinthe boundaries of Alaska and their naturalresources vested automatically in the Stateon admission to the Union.46

The Submerged Lands Act provides that“lands beneath navigable waters” means:47

● All lands within the boundaries of eachof the respective States which are coveredby non-tidal waters that were navigableunder the laws of the United States at thetime such State became a member of theUnion . . . up to the ordinary high watermark . . .;

● All lands permanently or periodicallycovered by tidal waters up to but notabove the line of mean high tide and sea-ward to a line three geographical milesdistant from the coast line . . .

However, this definition is limited by a fur-ther provision:

The term “lands beneath navigable wa-ters” does not include the beds of streams inlands now or heretofore constituting a partof the public lands of the United States, if

such streams were not meandered in connec-tion with the public survey of such lands un-der the laws of the United States and if thetitle to beds of such streams was lawfullypatented or conveyed by the United States orany State to any person.48

The def ini t ion of “ lands beneath navigablewaters” in Alaska has been the subject ofn u m e r o u s d i s p u t e s b e t w e e n t h e S t a t e , t h eFederal Government, and, in some instances,Alaska Natives. Title to submerged lands in-c l u d e s t h e n a t u r a l r e s o u r c e s . ”49 T h e S u b -merged Lands Act provides that: “The term“natural resources” inc ludes , without l imit -ing the general i ty thereof , o i l , gas , and a l lo t h e r m i n e r a l s , a n d f i s h , s h r i m p , o y s t e r s ,c l a m s , c r a b s , l o b s t e r s , s p o n g e s , k e l p , a n dother marine animal and plant life, but doesnot include water power, or the use of waterfor the production of power.”50

At stake in the dispute over the definitionof lands beneath navigable waters is the titleand ownership of the submerged lands andthe potential wealth to be derived from theoil, gas, and other mineral resources.

OTHER LAND GRANTS

The Alaska Statehood Act also providedfor the transfer of certain federally ownedlands and facilities to the State. These in-cluded the Federal buildings’ and the Federaljail in Juneau,52 certain Federal propertiesused for conservation and protection of fishand wildlife,53 and all other lands or buildingsto which the Territory of Alaska held title.54

The Act confirmed previous land grants tothe territory of Alaska of mental health,university, and school lands.55 These landgrants include an estimated 1.1 million acresof public lands in the State.

STATE SELECTION PROCESS

All State land selections are to be made inaccordance with regulations issued by theSecretary of the Interior specifying the pro-

——


cedures for identification and approval ofselections. 56 Except for the community expan-sion and recreation grants made under sec-tion 6 of the Act, all selections are to be madein reasonably compact tracts of 5,760 acres.This size requirement may be waived where aselected tract is isolated from other landsopen to selection.57 Tracts are not consideredcompact when they exclude other lands opento selection within their exterior bound-aries.58

The State may only select lands that arevacant, unappropriated and, except for cer-tain national forest lands, unreserved at thetime of selection.59 The term “lands” includesretained interests in lands.’” The State maythus select the mineral rights in any landsthat have been disposed of by the UnitedStates with a reservation of all or any of themineral rights.

State selections must be submitted to theBureau of Land Management (BLM) accom-panied by a small filing fee, a description ofthe lands selected, and statements supportingthe availability of the land for selection.” Ifthe selection includes national forest lands,the application must have the approval of theSecretary of Agriculture.62 The BLM reviewsthe State application and issues a tentativeapproval if it is determined that there is nobar to passing legal title in the lands to theState other than the need to survey the landsor to issue a patent.63 After the BLM hasissued a tentative approval, the State ofAlaska may make conditional sales or leasesof the lands and resources selected.64

REVENUE GRANTS

The land grants of over 104 million acresprovide Alaska with sources of revenue fromState-owned lands and land-based resources.The Alaska Statehood Act also gave the Statea substantial share of the proceeds derivedfrom Federal lands and resources.

The Alaska Statehood Act repealed theschool land grants under which the territory

received two sections of each surveyed town-ship. 65 All school land grants preciously madeto the territory (about 106,000 acres) wereconfirmed. 66 In lieu of these land grants, sec-tion 6(f) of the Act provides that Alaska is en-titled to receive 5 percent of the proceedsfrom the sale of public lands in the State.67

These revenues are to be used for the supportof public education. None of the proceedsmay be used for the support of any sectarianinstitution. 68

Section 28 of the Alaska Statehood Actamended the Mineral Leasing Act of 1920 toprovide that 52½ percent of the annual netproceeds from sales, bonuses, royalties, andrentals of the public lands in Alaska, exceptthe naval petroleum reserve, are to be paid tothe State for disposition by the legislature.69

This grant of revenues was in lieu of partici-pation in the Reclamation Fund.70 Under theMineral Leasing Act, Alaska as a State (andpreviously as a territory), also has the right toreceive 37½ percent of the mineral leasingprofits for public roads and educational pur-poses. 71 This statehood grant raised Alaska’sshare of Federal leasing revenues generatedfrom public lands in the State to 90 percent.The Reclamation Act of 1902 provides that52½ percent of the Federal mineral leasingrevenues from 17 Western States are to bedeposited in the Reclamation Fund to be usedfor reclamation and water projects.72 The re-maining 10 percent of the proceeds is re-tained by the Federal Government.

Section 28 of the Alaska Statehood Act alsoamends the Alaska Coal Leasing Act of 1914by providing that 90 percent of the net profitsfrom Government coal mines and all bonuses,royalties, and other payments under the Actare paid to Alaska for disposition by the Statelegislature.73 Section 20 of the Act repealedthose sections of the 1914 Coal Leasing Actthat withdraw certain Federal coal lands inAlaska, and made these lands available forState selection. This special Alaska CoalLeasing Act was eventually repealed so thatcoal deposits on Federal lands now fall underprovisions of the Mineral Leasing Act of1920.74

Ch. 5 Federal Laws Affecting Alaska Lands and Resources “ 109

Alaska was also given a 70-percent shareof the net profits derived from the sale of furseals and sea otter skins from the PribilofIslands in the Bering Sea.75 This fur trade isgoverned by several international treaties. Atthe time of the Alaska Statehood Act, the pro-ceeds of the fur trade, after payment of alloperating costs and administrative expenses,ranged from $1 million to $2 million peryear.76 This grant was intended to “be ofmaterial help to Alaska in meeting the an-ticipated greater costs of statehood.”77

The Statehood Act gave Alaska a stake inmineral development both on non-Federaland on Federal lands. Alaska received thefull mineral rights to lands conveyed underthe Statehood Act and a full 90-percent shareof net proceeds from Federal mineral leasesin the State. This right applies to profits fromdeposits for coal, phosphates, sodium, potas-sium, oil, oil shale, native asphalt, bitumen,bituminous rock, and gas.78 As a practicalmatter, only oil, gas, and coal deposits arepresently important as revenue sources inAlaska. The Mineral Leasing Act does not ap-ply to metallic or industrial minerals that areacquired by the location of mining claims. ’g

CONGRESSIONAL INTENT

The House report accompanying the Alas-ka Statehood Act indicates that these grantsof lands and revenues were intended to over-come two major objections to statehood: thatAlaska did not have a viable economy apartfrom the Federal expenditures for construc-tion projects and military bases, and thatAlaska could not support the costs of self-government from the resources from whichrevenue could be generated.80

At the time of statehood, approximately 99percent of Alaska was in Federal ownership.Only about 600,000 acres were privatelyowned. The public land laws, although ap-plicable to Alaska, for all practical purposeshad not operated to transfer lands to non-Federal ownership prior to statehood as theyhad in other States.

A grant of this size to a new State, whetherconsidered in terms of total acreage or of apercentage of the area of the State, is un-precedented. On the occasion of the admis-sion of the existing States, land grants haveusually amounted to but 2 to 4 sections pertownship, or a maximum of 6 to 11 percent ofthe land area. In many instances, however,much of the acreage had already passed intoprivate taxpaying ownership, or was in theprocess of so passing at Federal title andthere seems to be little chance of any markedchange in this situation under existing Fed-eral policies .81

The land and revenue grants were to pro-vide the new State with a stable economicbase and were made in lieu of grants to newStates for internal improvements,82 swamp-land grants,83 and grants provided by theMerrill Act of 1862.84 The House report notesthat these grants were necessary to address“Alaska’s peculiar problems.”85

Over 99 percent of the land area of Alaskais owned by the Federal Government. Thecommittee believes that such a condition isunprecedented at the time of the admissionof any of the existing States.

The public land laws of the United States,including those providing for the disposal ofthe public domain to private individuals,theoretically are generally applicable toAlaska. The committee, however, found thatthe beneficial effects of these laws havebeen and are vitiated to a large degree by theFederal policies of the last half century, ofwithdrawing from public use many of themore valuable resources of the territorythrough the creation of tremendous Federalreservations for the furtherance of the pro-grams of the various Federal agencies. Thus,approximately 95 million acres—more thanone-fourth of the total area of Alaska—istoday enclosed within various types of Feder-al withdrawals or reservations. Much of theremaining area of Alaska is covered by gla-ciers, mountains, and worthless tundra.Thus, it appeared to the committee that thistremendous acreage of withdrawals mightwell embrace a preponderance of the morevaluable resources needed by the new Stateto develop flourishing industries with whichto support itself and its people.86

Ch. 5 Federal Laws Affecting Alaska Lands and Resources Ž 111

To remedy what the committee reportterms “unhealthy” and “distorted” landown-ership patterns in Alaska, the House commit-tee proposed land grants of 182,800,000acres.87 In the Alaska Statehood Act, thisfigure was reduced to 102,550,000 acres ofgeneral grants and 800,000 acres of com-munity expansion grants.88 The committeealso proposed that these selection rights beenhanced by several additional provisions.

If the resources of value are withheld fromthe State’s right of selection, such selectionrights would be of limited value to the newState. The committee members have, there-fore, broadened the right of selection so as togive the State at least an opportunity toselect lands containing real values instead ofmillions of acres of barren tundra.89

Consequently, the State was given the rightto select lands “known or believed to bemineral in character,”90 lands “under leasefor oil and gas or coal development or whichmay even be under production for those prod-ucts, "91 and a “preference right of selectionover lands returned to the public domainfrom withdrawal status.”92 Withdrawals ofcoal lands under the Alaska Coal Leasing Actof 1914 were also terminated to permit theState to select these lands.93

The committee report also observes that aserious problem facing the new State—"andin some respects the most serious of all’’—isthat of financing the basic functions of Stategovernment.94 “ Of these functions, road main-tenance and road construction assume a keyimportance both because of the heavy costand because of the crying need in Alaska foradditional roads to facilitate economic devel-opment. ’95 The report notes with approvalprovisions of the Federal Aid to HighwaysAct of 1956 that allows Alaska to participatein the apportionment of funds for primaryand secondary highway systems. These provi-sions specify that only one-third of Alaska’sarea will be used as the area factor in the for-mula used for apportionment of highwayfunds.96

The report states that the high percentageof Federal ownership had “hampered the de-velopment of (such) resources for the benefitof mankind.”97 A long list of “potential basicindustries in the territory, including theforest industries, hydroelectric power, oiland gas, coal, various other minerals, and thetourist industry” could only exist in Alaska“as tenants of the Federal Government, andon the sufferance of the various Federalagencies. ’ ’98 The failure of these industries togrow under territorial government was at-tributed to Federal ownership of land andresources. 99 The Alaska Statehood Act provi-sions were seen as necessary changes in Fed-eral policy to assure the success of statehood.

Concretely, the grant of statehood willmean some saving to the Federal Governmentas the people of Alaska take over part of theburden of supporting certain Governmentfunctions now borne by the United StatesTreasury.

From the standpoint of economic develop-ment, the committee believes that statehoodwill permit and encourage a much more rap-id growth in the economy of the territorythan would be possible under Territorialstatus. Many witnesses have testified to thecommittee regarding the wealth of untappedresources in Alaska.

It is apparent from the history of the last88 years that the extreme degree of Federaldomination of Alaskan affairs has not re-sulted in the maximum development of theterritory . . . the committee has included inthis bill provisions which it believes will openup many of the resources of Alaska for theuse of mankind.100

The result of these provisions was totransfer to the State ownership of approx-imately 104 million acres of onshore landsand resources, and 35 to 40 million acres ofsubmerged lands and resources. Not only wasAlaska given a stake in the development of itslands and resources, but revenue grants gavethe State an interest in the development ofresources on Federal lands as well.


FOOTNOTE REFERENCES FOR ALASKA STATEHOOD ACT

‘Proc. No. 3269, Jan, 3, 1969, 24 F.R. 81, 73 Stat. c16(1959).

*Treaty of Mar. 30, 1867, 15 Stat. 539.3Act of August 24, 1912, Ch, 387, 37 Stat. 512, Most

Alaskans date Alaska’s territorial status from theOrganic Act of 1884, Act of May 17, 1884, 23 Stat. 24,which established Alaska as a public land district andprovided that the laws of the United States relating tomining claims were to have full force and effect. TheAct of August 24, 1912 extended the laws and Constitu-tion of the United States to Alaska and created a ter-ritorial legislature. Acts of the legislature were subjectto review by the U.S. Congress.

4Act of July 7, 1958, Public Law 85-508, 72 Stat. 339,48 U.S.C, Prec, s 21 (1970). For an anecdotal history ofthe campaign for Alaska Statehood, see Clause-M.Naske, An Interpretative History of AJaskan Statehood(1973) , E r n e s t Gruening, The Battle for A l a s k aStatehood (1967).

‘See H. Rept. 624, 85th Cong,, 2d sess. (1957), re-printed in 1958 U.S. Code Cong, & Ad. News. 2933 at2944. (No Senate report was submitted with this legis-lation, ) In 1954, nearly one-half of Alaska’s labor forcewas employed by the military. In 1960, over one-half ofState labor force was federally employed (includingmilitary), University of Wisconsin School of Natural Re-sources, Center for Resource Policy Studies and Pro-grams, Federal Land Laws and Policies in Alaska, Vo~.IV: A Summary of Issues and Alternatives, pp. 4-5(1970). (This multivolume study was prepared for thePublic Land Law Review Commission.)

8H. Rept. 624, 1958 U.S. Code Cong. & Ad News2933-35.

71d,, at 2933-34,‘public Law 85-508 requires a republican form of

State government, the acceptance and ratification ofthe State Constitution by the U.S. Congress, the ap-proval of Statehood and the new constitution by Alaskacitizens by referendum, a presidential proclamationthat the foregoing steps have been completed, and theelection of two senators and one at-large represen-tative to Congress.

‘Public Law 85-508, section 2, 72 Stat. 339 (1958).‘OProc, 3269,24 F.R. 81, 73 Stat, c16 (1959).“public Law 85-508, section 4, 72 Stat. 339, as

amended by the Act of June 25, 1959 (The Alaska Om-nibus Act), Public Law 86-70, section 2(a), 73 Stat. 141,codified at 48 U.S.C. Prec. $21 (1970).

[zId.]jId.lqAct of May 17, lg06, 34 Stat. 197, as amended by

the Act of August 2, 1956, 70 Stat. 954, previouslycodified at 43 U.S.C. 270-1 to 270-3, repealed by PublicLaw 92-203, section 18(a), 85 Stat. 710 (1971).

‘sPublic Law 85-508, section 4, 72 Stat. 339.18H, Rept, GM, 1958 U.S. Code Cong. & Ad. News at

2934.

17 See Public Land Order 4582, 34 F.R. 1025, Jan. 17,1969. See also Mary Clay Berry, The Alaska Pipeline:The Politics of Oil and Native Land Claims [ 1975).

‘aAct of December 18, 1971, Public Law 92-203, 85Stat, 688,43 U.S,C. 1601, (supplement IV, 1974).

~QSee 43 U.S.C. 1605, 1608, 1611, 1613, 1615, and1618.

Z“Section 3(e) of ANCSA, 43 U.S. C, 1602(e) defines“public lands” as “all Federal lands and intereststherein located in Alaska except: . . . land selections ofthe State of Alaska which have been patented or ten-tatively approved under section 6(g) of the AlaskaStatehood Act, as amended (72 Stat. 341, 77 Stat. 223),or identified for selection by the State prior to Jan, 17,1969. ” By definition, State selections are generallyunavailable for Native selection under ANCSA; how-ever, certain unpatented State selections, in or nearNative villages are made available for Native selectionby sections n(a)(2) and 12 of ANCSA, 43 U.S.C.1610(aX2) and 1611.

“public Law 85-508, section 6,72 Stat. 340 (1958).2zId,zs~blic Law 85-508, section 28, 72 Stat, 351 (1958).24Public Law 85-508, section 6(c), 72 Stat. 340 (1958).25Public Law 85-508, section 6, 72 Stat. 340 (1958).2Wublic Law 85-508, section 6(a), 72 Stat. 340 (1958).

In Alaska v. LJdalJ, 420 F, 2d 938 (9th Cir, 1969), theState of Alaska challenged the Udall land freeze. TheCourt of Appeals for the Ninth Circuit ruled that landsclaimed by Alaska Natives were not, as a matter ofLaw, “vacant, unappropriated, and unreserved, ” andthus open to statehood selection. An identical provisionis contained in section 6(b), 72 Stat. 340 (1958).

27Public Law 85-508, section 6(a), 72 Stat. 340.281d.‘gId,3oId.

31 Public Law 85-508, section 6[b), 72 Stat. 340 (1958).32Public Law 85-508, sections 4, 6(b), and 6(g), 72

Stat. 339 to 342 (1958).ss~blic Law 85-508, section IO(a), 72 Stat. 345

(1958).Squniversity of Wisconsin, School of Natural Re-

sources, Center for Resource Policy Studies and Pro-grams, A Study of Federal Land Law and Policies inAlaska, Vol. 1, at 141 to 143 (1970).

jsFederal State Land Use Planning Commission forAlaska, “The D-2 Book”: Lands of National Interest inAlaska, 9 to 11 (1977).

se~blic Law 85-508, section 6(i), 72 Stat. 342 (1958).371d.381d.

39Alas. stat. 38.05.185 to 38 ,05 .280 . See Herbert ,Alaska Mining Law Manual, (1970], published by theMineral Industry Research Laboratory of the Univer-sity of Alaska. The leasable minerals under Alaska laware oil, gas, ccal, sulfur, oil shale, bitumen, phosphate,


sodium, and potassium. Locatable minerals includemetals, ores of metals, as well as nonmetallic mineralswhich have special values such as asbestos, limestone,building stone, magnesite, silica, and the like. Herbert,at 1.

‘See, for example, 11 Alaska Administrative Code86.135(b).

4’Public Law 85-508, section 6(g), 72 Stat. 341 (1958).‘2Public Law 85-508, section 6(h), 72 Stat. 342 (1958),

as amended by Public Law 88-289, 78 Stat, 168 (1964).The Mineral Leasing Act of 1920 is codified at 30 U.S.C.181 et seq. The Alaska Coal Lands Leasing Act of 1914,c.330, 38 Stat, 741, formerly codified at 48 U.S.C. 432 etseq., was repealed by the Act of September 9, 1959,Public Law 86-252, 73 Stat. 490.

43Public Law 85-508, section 6(h), 72 Stat. 342 (1958),as amended by Public Law 88-289, 78 Stat. 168 (1964).

“Id. See also, 43 CFR 2627.3(b)(4).45Public Law 85-508, section 6(m), 72 Stat. 343 (1958).

The Submerged Lands Act of May 22, 1953, ch. 65, title1, section 2, 67 Stat. 29, is codified at 43 U,S.C. 1301 etseq. (1970).

’543 U.S.C. 1311(a) (1970).4743 LJ, S.C. 1301(a) [1970).4’43 U.s.c. 1301(f) (1970).4g43 U.S.C. 1311(a) (1970).5043 U,S.C. 1301(e) (1970).5’Public Law 85-508, section 6(c), 72 Stat. 340 (1958).52Public Law 85-508, section 6(d), 72 Stat. 340 (1958).‘J~blic Law 85-508, section 6[e), 72 Stat. 340 (1958).54Public Law 85-508, section 5,72 Stat. 340 (1958).55Public Law 85-508, section 6(k), 72 Stat. 343 (1958).55Public Law 85-508, section 6(g), 72 Stat. 341 (1958).

These regulations are found at 43 CFR 2627.sTId.5843 CFR 2627.3(c)(3),5gPublic Law 85-508, section 6, 72 Stat. 340 (1958).‘Public Law 85-508, sections 6(a) and 6(b), 72 Stat.

340 (1958), as amended by the Act of September 14,1960, Public Law 86-786, 74 Stat. 1024. See also 43 CFR2627.3(a)(l).

6143 CFR 2627.3(c).6243 CFR 2627, l(b).8343 CFR 2627.3(b).“Public Law 85-508, section 6(g), 72 Stat. 341, (1958)

and 43 CFR 2627.‘sPublic Law 85-508, section 6(k), 72 Stat. 343 (1958).

The school land grants were authorized under section Iof the Act of March 4, 1915, 38 Stat. 1214, 48 U.S.C.353, as amended.

‘cPublic Law 85-508, section 6(k), 72 Stat. 343 (1958).‘7Public Law 85-508, section 6(f), 72 Stat. 341 (1958).“public Law 85-508, section 6(j), 72 Stat. 342 (1.958).Cgpublic Law 85-508, section 28(b), 72 Stat. 351

(1958). The revenue provisions of the Mineral LeasingAct of 1920 are codified at 30 U.S.C. 191.

70H. Rept. 624, 1958 U.S. Code Cong. & Ad. News, at

2940, 2956.7130 U.S. C, 191. Prior to its amendment in 1976, sec-

tion 28 provided that: “all monies received from sales,

bonuses, royalties, and rentals of public lands underthe provisions of this chapter shall be paid into theTreasury of the United States; 37VZ per centum thereofshall be paid by the Secretary of the Treasury as soonas practicable after December 31 and June 30 of eachyear to the State within the boundaries of which theleased lands or deposits are or were located; . . .“

In 1976, section 28 was amended by Public Law94-273, section 6(2), 90 Stat. 377 (Apr. 21, 1976); PublicLaw 94-377, section 9, 90 Stat. 1090 (Aug. 4, 1976);Public Law 94-422, Title III, section 301, 90 Stat. 1323(Sept. 28, 1976); and Public Law 94-579, Title HI, sec-tion 317(a), 90 Stat. 2770 (Oct. 21, 1976).

As amended, section 28 now provides, simply, that90 per centum of leasing revenues be paid to the Stateof Alaska. 30 U. S.C.A. 191 (1978 supp.).

7243 U.S.C. 391, Act of June 17, 1902, c. 1093, section1, 32 Stat. 388, codified at 43 U.S.C. 391, as amended.Monies deposited to the Reclamation Fund are to beused for the reclamation of arid and semiarid lands andfor certain other specified purposes. Public Law 94-377reduced the amount of leasing revenues to be paid intothe Reclamation Fund from 52 to 40 percent. PublicLaw 94-377, section 9, 90 Stat. 1090 (Aug. 4, 1976), 43U. S.C.A, 191 (1978 SUpp).

73Public Law 85-508, section 28(a), 72 Stat. 351(1958).

74The Alaska Coal Leasing Act, formerly 48 U,S,C,432, was repealed by the Act of September 9, 1959,Public Law 86-252, section 1,73 Stat. 490.

Leasing of Federal coal deposits in Alaska is nowgoverned by the Mineral Leasing Act of 1920, codifiedat 30 U.S. C. 201 et seq.

75Public Law 85-508, section 6(e), 72 Stat. 340 (1958)as amended by the Fur Seal Act of 1966, Public Law89-702, Title IV, section 408(b), 80 Stat. 1098. The Ad-ministration of the Pribilof Island fur trade by the U.S.Government was a scandal for many years. As late as195o, Natives were paid only in food commodities andreceived a yearly bonus never higher than $5OO for thebest hunters. The Native families lived in isolation in arestricted area. No one could visit the islands without apermit from the Government. It was not until 1966, thatthe last vestiges of what had been called “virtualslavery” were lifted. See Cooper, Alaska—The LastFrontier, 191 (1973]. See also 16 U.S.C. 1151 et seq.,especially 46 U.S. C. 1168 which provides civil serviceretirement benefits for Natives engaged in the fur tradeand their survivors.

7eH. Rept. 624, 1958 U.S. Code Cong. & Ad. News2940.

“Id.7aSee the Mineral Leasing Act of 1920, as amended,

30 U,S.C. 181 et. seq.Tgsee the Genera] Mining Law of 1872, as amended,

codified at 30 U.S. C, 21-54, 161, 162, 541-541 ii, and621-625 (1970).

‘H. Rept. 624, 1958 U.S. Code Cong. & Ad. News at2944 to 2947.

8’Id, at 2931,


sz~blic Law 85-508, section 6(l), 72 Stat. 343 (1958).See Act of September 4, 1841, section 8, 5 Stat. 455,Revised Stat, sections 2378,2379,43 U.S.C. 857.

Sssee Act of September 25, 1850, 9 Stat. 520, RevisedStat. 2479,43 U.S.C. 857.

s4The Act of July 2, 1862, 12 Stat. 503, 7 U.S.C. 301 to308, grants new States 30,000 acres of public lands foreach Senator and Representative.

E5H. Rept. GM, 1958 U.S. Code Cong. & Ad. News2937.

~Id. at 2937 to 2938.‘71d. at 2938.‘Public Law 85-508, section 6, 76 Stat. 340 (1958).139H. Rept, 624, 1958 U.S. Code Cong. 1$ Ad. News at

2939.

‘See Public Law 85-508, section 6 (i), 72 Stat. 342(1958).

glId. See also, section 6(b), 72 Stat. 340 (1958).gzfiblic Law 85-508, section 6(g), 72 Stat. 341 (1958).gs~blic Law 85-508, section 20, 72 Stat. 351 (1958).“H, Rept. 624, 1958 U.S. Code Cong. & Ad. News at

2938.9sIdo‘eId. See 23 U.S.C, 101 et seq.‘7H, Rept. 624, 1958 U.S. Code Cong. & Ad, News at

2939.981d0wQIdo‘wId. at 2941.

Ch. 5 Federal Laws Affecting Alaska Lands and Resources “ 115

ALASKA NATIVE CLAIMS SETTLEMENT ACT

The Alaska Native Claims Settlement Act(ANCSA) l extinguished all Native claims tolands and hunting and fishing rights basedupon aboriginal title or use.2 In compensation,ANCSA gave Alaskan Indians, Aleuts, andEskimos $962.5 million and the right to select44 million acres of Federal lands in the State.3

Native Regional and Village Corporationswere established to administer land selec-tions and fund distributions.4 Conflicts overthe Native land claims had slowed State landselections under the Alaska Statehood Actand threatened to impede construction of theTrans-Alaska Oil Pipeline. ANCSA removed amajor obstacle to the pipeline and paved theway for conveyances to the State and Nativegroups that will shift approximately 40 per-cent of Alaska’s land to non-Federal owner-ship.

ANCSA also addressed the future manage-ment of the remaining Federal lands in theState. Section 17(d)(2) directed the Secretaryof the Interior to withdraw up to 80 millionacres of land that he deemed suitable forpotential inclusion in the National Park,Forest, Wildlife Refuge, and Wild and ScenicRivers Systems.5 The Secretary was to studythese lands and make recommendations toCongress. To protect the national interest inthese lands, commonly called “d-2” lands,prior to congressional action, they were with-drawn from all forms of appropriation underthe public land laws, the mining and mineralleasing laws, and from selection by the Stateor Native Regional Corporations.6 Statutoryauthority for these withdrawals expired inDecember 1978.7

Many proposals for Alaska National In-terest Lands have been introduced in Con-gress in addition to the original “d-2” recom-mendations made by Secretary Morton inDecember 1973.8 During the 95th Congress,extensive hearings on Alaska Lands wereheld before House and Senate Committees inWashington, D. C., Alaska, and other loca-tions across the country. On May 19, 1978,


after 3 days of debate, the House of Repre-sentatives passed H.R. 39 which would des-ignate over 100 million acres as nationalparks, forests, wildlife refuges, wild andscenic rivers, and wilderness areas.9 In Oc-tober 1978, the Senate adjourned without act-ing on Alaska Lands. Alaska National Inter-est Lands legislation will be reintroduced inthe 96th Congress.

HISTORICAL OVERVIEW

Once, Alaska Indians, Aleuts, and Eskimoshad dominion over all of Alaska’s 375 millionacres. Alaska’s harsh climate and isolationcombined with Government policies to protectthe Natives in the use and enjoyment ofAlaska’s lands, waters, and wildlife. Whenthe United States purchased Alaska fromRussia in 1867, the treaty provided: “The un-civilized tribes in Alaska will be subject tosuch laws and regulations as the UnitedStates may from time to time adopt in regardto the aboriginal tribes of that country.”10

However, from 1867 to 1900, the UnitedStates paid scant attention to the Natives inAlaska. The Organic Act of 1884, which es-tablished Alaska as a public land district,acknowledged the existence of aboriginalclaims but reserved any settlement of theseclaims for a future time:

. . . the Indians or other persons in said dis-trict shall not be disturbed in the possessionof any lands actually in their use or occupa-tion or now claimed by them, but the termsunder which such persons may acquire thetitle to such lands is reserved for future legis-lation by Congress.”

By 1900 the United States began to takenotice of Alaska and its Natives. By this time,the era of negotiating Indian treaties hadended. The circumstances that dictated theestablishment of Indian reservations in thelower 48 had not existed in Alaska. AlaskaNative groups were never officially recog-


nized as tribes. The issue of indigenous rightswas consistently sidestepped by the FederalGovernment. As a 1968 report of the FederalField Committee for Development Planning inAlaska observed, the Alaska Natives wereleft in an “anomolous position:”

They were omitted from the General Allot-ment Act, which was a method of attainingcitizenship for American aborigines. Theywere omitted from the Homestead Act as be-ing neither citizen nor alien capable of at-taining citizenship. They were forbidden byCongress to enter into treaties with theUnited States for the cession of some landsand the retention of others. Physically theycomprised the major part of Alaska’s popula-tion. Officially they were invisible. The moodof the land was to procrastinate aboutAlaska which was far away and would neverbe a State or have a white resident popula-tion to contest national decisions.12

It was not until passage of the AlaskaStatehood Act in 1958 that Alaska Nativesbegan to be threatened in their use of thelands and subsistence resources.13 The State-hood Act did not settle the issue of aboriginalland claims, but left it for future legislative orjudicial action.14 The Federal Field Committeereport summed up the position of AlaskaNatives at statehood:

The time for filing claims before the IndianClaims Commission had passed. Claims musthave arisen prior to August 13, 1946, andhave been filed within 5 years to be heard.The aboriginal title of the Natives of Alaskahad received no formal recognition, exceptthat granted in the jurisdictional act for theTlingit-Haidas in 1935. Again the need inAlaska was arising when there were no lawson the books to provide a remedy. Now manyareas of Alaska were feeling the encroach-ment of the white man. The grants were nolonger a string of townsites, a scattering ofhomesteads, a few hundred mining claims—they were in the millions of acres, and, moreimportantly, over all of the resources uponwhich the Native peoples depended for theirlivelihood. Anglo-Saxon land ownership wasforeign to Alaska Natives. They might claimand use the land on which their homes, fishcamps, and landing sites were situated, withthe same protectiveness of any other land-

owner; but the fruit of the land was more im-portant than the land itself. Important werethe fish, fur-bearing animals, caribou, andmoose—and, even more important than landanimals for Coastal Eskimos—the fruits ofthe sea.15

By 1959, when the State was given its se-lection rights to about 104 million acres ofpublic lands, over 92 million of the 375 millionacres in Alaska had been withdrawn for pub-lic purposes. These Federal withdrawals in-cluded: the Tongass and Chugach NationalForests; Mt. McKinley National Park andGlacier Bay, Katmai, and Sitka NationalMonuments; the Kenai National Moose Rangeand a number of small wildlife refuges; NavalPetroleum Reserve No. 4; and several majordefense installations. Eighty percent of theFederal lands in Alaska were under thejurisdiction of the Bureau of Land Manage-ment (BLM). These lands were, and are, themajor part of the Nation’s public domain.Since statehood, the unreserved public do-main in Alaska has been further reduced bythe creation, in 1960, of the 9-million-acreArctic National Wildlife Range.

As Alaska began to make land selections,Native groups began to protest. Beginning inlate 1961, the Bureau of Indian Affairs filedprotests on behalf of some Native villages,totaling approximately 5,860,000 acres andconflicting with 1,750,000 acres of Stateselections. The filing of individual or villageprotests continued through 1966. By fall of1966 the rate of filings accelerated. By April1, 1968, there were 40 recorded protestscovering 296,600,000 acres.16

In 1966 because of these conflicting landclaims, Secretary of the Interior StewartUdall imposed an informal freeze on allAlaska public lands. This freeze halted anyfurther Federal withdrawals, State selec-tions, and appropriations under the publicland laws. In January 1969, this freeze wasformalized by Public Land Order 4582, whichwithdrew all unreserved Federal lands inAlaska pending congressional considerationof legislation on Alaska Native land claims. 17

With discovery of oil at Prudhoe Bay, pres-


sure for resolution of the Native claims in-creased. Because of the land freeze, the Sec-retary could not grant a permit for construc-tion of a pipeline to transport oil from theNorth Slope. Finally, on December 18, 1971,the Alaska Native Claims Settlement Act wassigned into law.

SETTLEMENT OF NATIVE CLAIMS

ANCSA was passed in congressional recog-nition of “an immediate need for a fair andjust settlement of all claims by Natives andNative groups of Alaska, based upon aborigi-nal land claims.”18 ANCSA is more than apublic land law. In section 2(b) of ANCSA,Congress declares, in part, that “the settle-ment should be accomplished rapidly, withcertainty, in conformity with the realeconomic and social needs of Natives, with-out litigation, (and) with maximum partici-pation by Natives in decisions affecting theirrights and property.”19 ANCSA extinguishedall Native claims of aboriginal title to lands inAlaska and, in exchange gave Alaska In-dians, Aleuts, and Eskimos an Alaska NativeFund of $962.5 million and the right to select44 million acres of Federal lands.

Section 4 of ANCSA provides that any andall aboriginal titles and claims of aboriginaltitle to lands in Alaska are extinguished.20 Allconveyances of public lands and waters in-cluding tentative approvals of land selectionsunder the Alaska Statehood Act are to beregarded as extinguishing any aboriginal titleto the lands involved.21 All Native claims ofaboriginal title in Alaska based on indigenoususe or occupancy of lands, including sub-merged lands, and any aboriginal huntingand fishing rights were extinguished.22 Allclaims against the United States, the State ofAlaska, and any persons that were based onaboriginal title or use or on the laws of theUnited States or other Nations were also ex-tinguished. 23

Native Enrollment

Section 5 of the Act requires that allAlaska Natives must enroll in 1 of 13 Native

regions established by section 7 in order to beeligible for participation in the settlement.24

(See figure 5.) The original period of enroll-ment ended on March 30, 1973; however,ANCSA was amended in 1976 to allow addi-tional Native enrollments.25 About 70,000eligible Natives were registered during thefirst enrollment period.26 An Alaska Native,as defined in section 3(b) of ANCSA, is:

A citizen of the United States who is a per-son of one-fourth degree or more Alaska In-dian (including Tsimshian Indians not en-rolled in the Metlakatla Indian Community),Eskimo, or Aleut blood, or combination there-of. The term includes any Native as so de-fined either or both of whose adoptiveparents are not Natives. It also includes, inthe absence of proof of a minimum bloodquantum, any citizen of the United Stateswho is regarded as an Alaska Native by theNative village or Native group of which heclaims to be a member and whose father ormother is (or, if deceased, was) regarded asNative by any village or group, Any decisionof the Secretary regarding eligibility forenrollment shall be final.27

Natives residing in Alaska are also en-rolled in a Native village.28 Natives who liveoutside of Alaska and who choose not toenroll in their ancestral regions may join a13th region.29 The 13thvillages.

Native Corporations

ANCSA requires theAlaska corporation law

region cent-ains no

organization underof a profit-making

Native Regional Corporation for each re-gion.30 The Act further requires the organiza-tion of a Village Corporation for each vil-lage. 31 These corporations administer landselections and cash distributions from theAlaska Native Fund.32 As profit-making busi-ness entities, Native Regional Corporationsmanage other business enterprises and in-vestments. 33 Individual Natives are share-holders in the Native Regional and VillageCorporations of their enrollment.

The stock in Native Corporations may notbe transferred by a living shareholder before

4( I- 8,14 ( ) - T, . r,


-i


December 18, 1991, except under a court de-cree of separation, divorce, or child support.34

When a Native shareholder dies, however,the stock passes as other personal propertyand may be inherited by a non-Native.35

Alaska Native Fund

The Settlement Act provides that AlaskaNatives are to receive $962,500,000. Of thisamount, $462,500,000 is to be appropriatedby the Congress over a period of 11 years.36

The remaining $500 million will be derivedfrom a 2-percent royalty on Mineral LeasingAct revenues produced from State and Feder-al lands.37 The Native royalty is subtractedfrom Federal lease revenues before deduct-ing Alaska’s statehood share of 90 percent ofthe profits.38 Royalty payments will ceasewhen $500 million have been paid.39 Thesemonies are to be deposited to the AlaskaNative Fund in the U.S. Treasury .40

The monetary settlement provided by theAct is to be distributed quarterly to theRegional Corporations in proportion to thenumbers of their shareholders.41 Each Re-gional Corporation, in. turn, is required toredistribute one-half of its receipts from theNative Fund to each Village Corporation forits members and pro rata to Native share-holders who are not members of Village Cor-porations.42

The 12 Regional Corporations that areeligible to receive lands under the Act are re-quired to share the revenues derived from thetimber and mineral resources on selectedlands. 43 Each of the 12 landholding RegionalCorporations must divide 70 percent of therevenues from its timber and mineral re-sources with the other 11 Regional Corpora-tions, This division of revenues is propor-tional to the number of shareholders. As inthe case of the monetary compensation pro-vided by the Act, each Regional Corporationis required to redistribute one-half of therevenues it so receives among its sharehold-ers and Village Corporations.44 The 13thRegional Corporation, which is composed ofnonresident Natives, is ineligible to receive

land and thus does not share in the inter-regional revenue sharing.45

Land Selections

Under various provisions of ANCSA, Alas-ka Natives will receive title to approximately44.8 million acres of public lands in Alaska.46

Of these lands, the surface estate to about 22million acres is to be conveyed to about 200Native Village Corporations organized underthe Act.47 The subsurface estate to these 22million acres and fee simple title to some 18million acres is to be divided among the 12resident Native Regional Corporations.48 [Theterm “subsurface es tate” i s roughly equiva-lent to “mineral rights.”) Although RegionalCorporations hold the subsurface rights, min-eral exploration can occur within the bound-aries of any Native village only with the con-sent of the Village Corporation. 49

The Vi l lage Corporat ion se lect ions weret o b e c h o s e n b y D e c e m b e r 1 8 , 1 9 7 4 , f r o mlands in and around ex is t ing Vi l lages .50 T h evillage land entitlements outside of southeastAlaska are made on the basis of population. 51

The 11 Regional Corporations outside south-east Alaska were to select the lands to whichthey are entitled by December 18, 1975. 52 R e -g i o n a l C o r p o r a t i o n e n t i t l e m e n t s a r e m a d eunder a complex formula. 53

The Secretary of the Interior was directedt o i s s u e p a t e n t s “ i m m e d i a t e l y ” a f t e r t h eNat ive Corporat ions have made their se lec-t ions .54 Conveyances of Native selections havebeen delayed by administrative problems, bydisagreement between Nat ive Corporat ionsand the Department of the inter ior , and byl i t igat ion.55

Withdrawals for Native Selections

Subsection Ii(a) of ANCSA withdrew the25 townships surrounding any Native villageoutside southeastern Alaska from all forms ofappropriation under the public land laws, in-cluding the mining and mineral leasing laws,and from select ion by the State .56 S i m i l a r l y ,subsection 16(a) of ANCSA withdrew the nine


townships surrounding certain Native vil-lages in southeastern Alaska.57 These with-drawals were made to form a pool of landfrom which Native selections could be made.58

The withdrawals included some lands al-ready selected by or tentatively approved to,but not yet patented to, the State under theAlaska Statehood Act.59 National parks, na-tional monuments, and land withdrawn formilitary purposes (other than Naval Petro-leum Reserve No. 4) were excluded fromthese withdrawals. The Secretary of the In-terior was directed to withdraw additional“deficiency” land from the nearest unre-served, vacant, and unappropriated publiclands if the statutory withdrawals were notsufficient to satisfy Native selection rights.60

Approximately 108 million acres werewithdrawn for Native selection purposes bysubsections Ii(a) and 16(a).61 Section 16 au-thorizes Native village selections of 230,400acres in southeastern Alaska from landswithdrawn under that section.62 Section 12authorizes selection by Native Village Cor-porations outside southeastern Alaska of 22million acres from the land withdrawn bysubsection 11(a).63 Section 12 further author-izes selection by Native Regional Corpora-tions of an additional 16 million acres, lessthe amount of land selected by the Native Vil-lage Corporations in southeastern Alaska,from the land withdrawn by subsection n(a),excepting land selected by the State prior toANCSA’s enactment.64

A limited amount of the 26 million acresselected by the State prior to ANCSA’s enact-ment was made available for Native selec-tion under sections n(a)(2) and 12(a)(l) ofANCSA. 65 It is estimated that 2.6 million ofthese acres will pass into Native ownership.

Subsection 14(h) authorizes the Secretaryto withdraw an additional 2 million acres ofunreserved and unappropriated public landlocated outside the areas withdrawn by sub-sections 1 l(a) and 16(a) and to convey suchland for certain specified purposes with thebalance remaining to be shared by all 12 resi-dent Native Corporations on the basis of pop-ulation. 66

Approximately 4.8 million additional acreswill pass to the Natives as a result of twoopen-ended provisions in ANCSA. Section 18provides for approval of Native allotment ap-plications under prior statutes pending at thetime ANCSA was adopted.67 All allotments soapproved count against the 2 million acres tobe conveyed to the Natives under subsection14(h), but only if approved prior to December18, 1975.68 Of an initial 1.2 million acres en-compassed by pending allotment claims, it isestimated that 200,000 acres are covered byinvalid claims. Another 200,000 acres repre-sent claims approved prior to December 18,1975. This leaves 800,000 acres to be con-veyed that will not count against the 2 millionallowed under subsection 14(h).69

Section 19(b) provides an option to thoseVillage Corporations located on former “In-dian Reserves” to take fee title to the “Re-serve” and forego other benefits of ANCSA orto take the benefits of ANCSA.70 Six such cor-porations elected to take title to four formerreserves. These reserves are: St. LawrenceIsland (1.2 million acres); Elim (0.3 millionacres); Venetie (1.4 to 1.7 million acres); andTetlin (0.75 million acres). This acreage,about 4 million, is in addition to the 40 millionacres covered by sections 12, 14, and 16.71

All together, these provisions authorizeselection of approximately 44.8 million acresby various Native groups in Alaska fromaround 110 million acres of withdrawals.

As permitted by the Department of the In-terior’s regulations, the Natives greatly over-selected in order to protect themselves fromloss of expected acreage due to preexistingrights or subsequent land surveys.72 Around80 million acres were so selected. Pursuant tosubsection 22(h) of ANCSA, all withdrawalsmade for Native selection purposes termi-nated on December 18, 1975, except for landactually selected by, but not yet conveyed to,the Natives.73 Approximately 30 million acresof unselected public lands remained. Theselands are covered by the withdrawalsauthorized by section 17(d)(l) of ANCSA.74

The Regional Corporations have empha-sized mineral potential in making their land


selections. In fact, several of them have ob-tained extensive mineral surveys of landavailable to them for selection. These surveyswere usually performed in return for certaindevelopment rights in the land eventuallyselected .75

Generally, the 44.8 million acres of Nativeland will be available for mineral explorationand development. The Regional Corporationswill control the minerals on 40 million acres.Some of the Regional Corporations will likelyfavor development. Other Native groups willcontrol the minerals in the 4.8 million acresconveyed under sections 18 and 19, and,since these acres will probably encompassculturally significant areas, these groups maybe somewhat less favorable to mineral activ-it y.

ALASKA NATIONALINTEREST LANDS

Section 17(d)(2) of ANCSA authorized theSecretary to withdraw up to 80 million acresof unreserved public lands to be studied forpossible addition to the National Park, Forest,Wildlife Refuge, and Wild and Scenic RiversSystems.” The Act required the lands to bewithdrawn from all forms of appropriationunder the public land laws, including the min-ing and mineral leasing laws, from Stateselection under the Alaska Statehood Act,and from selection by Native Regional Cor-porations under ANCSA.77 Native Regionaland Village Corporation selections, however,were allowed where the “d-2” withdrawalsoverlapped the statutory subsection 11(a)withdrawals for Native selection purposes.78

The Secretary withdrew the full 80 millionacres.” Section 17(d)(2) also required that theSecretary submit his recommendations con-cerning those lands to Congress by December18, 1973.80

On December 17, 1973, Secretary Mortonrecommended that 83.5 million acres beadded to the four conservation systems inAlaska.81 Approximately 65 million of these83.5 million acres were lands previously

withdrawn pursuant to section 17(d)(2).These section 17(d)(2) withdrawals remain ineffect until Congress acts on the recommen-dations or until December 18, 1978, which-ever is earlier.82 The section 17(d)(2) with-drawal terminated on December 18, 1973, forthe 15 million acres not recommended. Theother 18.5 million acres recommended for in-clusion are lands that were withdrawn pur-suant to subsection 17(d)(l).83

The 80-million-acre limitation in with-drawal authority of section 17(d)(2) does notimpose any limitation either on the total num-ber of acres that may eventually be includedin Alaskan conservation systems or on thenumber of acres that the Secretary may with-draw under other authority for congressionalconsideration or classification. Similarly, the80-million-acre limitation on the withdrawalauthority of section 17(d)(2) does not imposeany restriction on congressional designationsof Alaska National Interest Lands.

ALASKA PUBLIC INTEREST LANDS

Section 17(d)(l) of ANCSA directs the Sec-retary of the Interior to “review the publiclands of Alaska and determine whether anyportion of these lands should be withdrawnunder authority provided for in existing lawto insure that the public interest in theselands is properly protected.”84 The sectionauthorizes him “to classify or reclassify anylands so withdrawn and to open such lands toappropriation under the public land laws inaccord with his classifications.”85 Withdraw-als pursuant to subsection 17(d)(l) do not af-fect State and Native selection rights in thoseareas withdrawn for Native selection pur-suant to section 11.86 The section 11 with-drawals, however, precluded State selectionin such areas, at least until the section 11withdrawals terminated in December 1975.87

During 1972, the Secretary withdrewalmost all public lands in Alaska that werenot already reserved from State and Nativeselections. 88 Most of these so-called “d-l”withdrawals simply backed up other with-


drawals, such as the statutory withdrawalfor Native selection purposes. Thus, anyareas not selected by the Natives or recom-mended for inclusion in the four conservationsystems remain withdrawn under subsection17(d)(l) despite the termination of the morespecific withdrawals. There is no time limiton the section 17(d)(1) withdrawals, whichwill probably be maintained until the land isclassified or disposed of.

Certain areas were left open to State selec-tion only.89 Others were left open to locationfor metalliferous minerals as well as Stateselection. Fifteen million acres were madeavailable for entry under the public landlaws, with a 90-day preference to the State toselect areas it desired. However, the avail-able acreage was generally in areas notsuited for habitation or productive develop-ment, and attempted settlement led to hard-ship, death, and abandoned entries. In 1974the 12.4 million acres of remaining unse-lected and unentered public lands wereclosed until they could be classified.90

The State will eventually seek to completeits statehood selections from these d-l lands.Public lands withdrawn for possible Nativeselection under ANCSA and lands withdrawnunder section 17(d)(2) as national interestlands that are not included in national con-servation systems will revert to a public landd-l status because of overlapping d-l with-drawals.

Section 603 of the Federal Land Policy andManagement Act of 1976 requires that allpublic lands managed by the BLM must be in-ventoried and studied for their wildernesspotential by 1991.9l Under this provision,some of the remaining public lands in Alaskamay be added to the National WildernessPreservation System. Wilderness review ofAlaska’s public lands will be deferred untilafter completion of Native land conveyancesand congressional consideration of nationalinterest land proposals called for in section17(d)(2).92

JOINT FEDERAL-STATELAND USE PLANNING

COMMISSION FOR ALASKA

Section 17(a) of ANCSA established theJoint Federal-State Land Use Planning Com-mission for Alaska.93 This Planning Commis-sion is composed of 10 members—5 membersrepresenting the State of Alaska and 5 mem-bers representing the United States. TheAlaska members include the Governor or hisdesignate and four other persons appointedby the Governor.94 At least one of these Stateappointees must be a Native as defined in theAct.95 The five members representing theFederal Government include one member ap-pointed by the President with the advice andconsent of the Senate and four members ap-pointed by the Secretary of the Interior.96 TheGovernor (or his designate] and the Presiden-tial appointee serve as cochairmen of theCommission. 97 All decisions of the Commissionrequire concurrence by the cochairmen.98 Allmembers serve at the pleasure of the appoint-ing authority.99

The Planning Commission has no regula-tory or enforcement responsibilities, but hasimportant advisory functions. *W The Commis-sion was to expire on December 31, 1976.However, Public Law 94-204, approved Jan-uary 2, 1977, provides that the Commissionwill continue in existence until May 30,1979. 101

ANCSA provides that the Planning Com-mission shall:

(A) undertake a process of land use plan-ning, including identification of and the mak-ing of recommendations concerning areasplanned and best suited for permanent reser-vation in Federal ownership as parks, gamerefuges, and other public uses, areas ofFederal and State lands to be made availablefor disposal, and uses to be made of lands re-maining in Federal and State ownership;

(B) make recommendations with respect toproposed land selections by the State underthe Alaska Statehood Act and by Village andRegional Corporations under this Act;


(C) be available to advise upon and assistin the development and review of land useplans for lands selected by the Native Villageand Regional Corporations under this Actand by the State under the Alaska StatehoodAct;

[D) review existing withdrawals of Federalpublic lands and recommend to the Presidentof the United States such additions to ormodifications of withdrawals as are deemeddesirable;

(E) establish procedures, including publichearings, for obtaining public views on theland use planning programs of the State andFederal Governments for lands under theiradministration;

(F) establish a committee of land use ad-visers to the Commission, made up of repre-sentatives of commercial and industrial landusers in Alaska, recreational land users, wil-derness users, environmental groups, AlaskaNatives, and other citizens;

(G) make recommendations to the Presi-dent of the United States and the Governor ofAlaska as to programs and budgets of theFederal and State agencies responsible forthe administration of Federal and Statelands;

(H) make recommendations from time totime to the President of the United States,Congress, and the Governor and legislatureof the State as to changes in laws, policies,and programs that the Planning Commissiondetermines are necessary or desirable;

(I) make recommendations to insure thateconomic growth and development is order-ly, planned and compatible with State andnational environmental objectives, the publicinterest in the public lands, parks, forests,and wildlife refuges in Alaska, and the eco-nomic and social well-being of the Nativepeople and other residents of Alaska;

(J) make recommendations to improvecoordination and consultation between theState and Federal Governments in making re-source allocation and land use decisions: and

(K) make recommendations on ways toavoid conflict between the State and theNative people in the selection of publiclands. *02

EASEMENTS ACROSSNATIVE LANDS

Section 17(b) provides that “the PlanningCommission shall identify public easementsacross lands selected by Village Corporationsand the Regional Corporations and at peri-odic points along the courses of major water-ways which are reasonably necessary toguarantee international treaty obligations, afull right of public use and access, and accessfor recreation, hunting, transportation, util-ities, docks, and such other public uses as thePlanning Commission determines to be impor-tant.’’ 103 In identifying these public ease-ments, the Commission is to consult withState and Federal agencies, review proposedtransportation plans, and receive and reviewstatements from interested groups and in-dividuals on the need for and the proposedlocation of public easements.104 The Secretaryof the Interior must consult with the PlanningCommission and reserve “such easementsas he determines are necessary” in any pat-ent conveying lands to a Native Village or Re-gional Corporation under the provisions ofANCSA. 105

Section 17(c) provides that “in the eventthat the Secretary withdraws a utility andtransportation corridor across public landsin Alaska pursuant to his existing authority, ”the State and Native Village and RegionalCorporations will be precluded from selec-tions in the areas withdrawn. 106 This provi-sion refers to right-of-way corridor with-drawals for a construction haul road and anoil pipeline to transport oil from the NorthSlope.

In February and March 1976, the Secre-tary of the Interior issued orders establishingthe departmental policies and guidelines onthe reservation of extensive easementsacross lands conveyed to Native Corpora-tions.107 These easements provoked strongreactions from several Native Corporationsand have been the subject of litigation.

Order No. 2982 deals with local ease-ments, that is, all public easements other

— —.


than those used in interregional or interstatecommerce, in the transportation of naturalresources, or in interstate communicationssystems. 108 The order specifies the policy,guidelines, and procedures for reservingeasements. This order includes easements toprovide: access to public lands and re-sources; a continuous 25-foot easement alongthe marine coastline; access and recreationaluse easements along “highly significant”recreational streams and rivers; and ease-ments for utility, communications andweather purposes, for landing and dockingsites, and for “overnight” camp and restareas, etc.109 Guidelines include standards,widths, uses, and purposes. These easementsare to be reserved to protect the public in-terest in land conveyed to Natives underANCSA and to meet the requirements of pub-lic law.110 Several of the easements specifiedin this order were challenged by Natives andoverturned by a Federal District Court deci-sion.111

Order No. 2987 establishes guidelines forreserving easements for the transportation ofenergy, fuel, and natural resources.112 Thisorder establishes the so-called “floating”easements, that is, easements which are notspecifically located but rather are reserved“in behalf of the United States to cross all theland conveyed pursuant to the ANCSA . . "113

The specific location of easements reservedby this order is to be determined after con-sultation with and consent of the non-Federalowner. 114 The order provides that the UnitedStates may exercise the right of eminent do-main if consent is not given.115

This order subjects all lands conveyed toAlaska Natives to a “floating” or “blanket”easement for federally owned energy trans-mission systems or for the transportation offederally produced or purchased energy,fuel, or natural resources.116 Native lands inthe Aleutian Islands and the southeastern

panhandle were excluded from the easementprovision because prior studies of potentialtransportation routes disclosed that fewareas in these regions would be used forenergy and natural resource transportationsystems. 117

Order No. 2987 specifically provides thatsuch easements will not be available for ac-cess across Native lands for development ofresources on non-Federal lands:

Privately owned energy, fuel, and naturalresources that are being developed for aprofit should not be afforded extraordinaryprivileges across private property. There-fore, easements should not be reserved bythe United States in conveyances to AlaskaNatives for the benefit of such privatelyowned energy, fuel, and natural resources. 118

Subsequently, the Alaskan Natives filedsuit, contesting the validity of sections of bothorders.119 On July 7, 1977, the Federal DistrictCourt in Alaska ruled that several aspects ofOrder 2982 were invalid.120 In particular, thecourt found that the “continuous 25-footmarine coastline easement” and a major por-tion of the linear easements on “highly signifi-cant recreational rivers and streams were il-legal.’’ 121 The court also ruled that Order2987, the “floating” easement for transporta-tion corridors, was void in toto.122

Because the court viewed ANCSA as a set-tlement act and not a public land law, certainspecific statutory easements reserved on alllands conveyed out of Federal ownershipwere also overturned. These easement reser-vations for railroads, communications lines,and ditches and canals were held to be pre-empted by section 26 of ANCSA.123 The JusticeDepartment filed a protective notice of ap-peal, and several of the plaintiffs also ap-pealed.124 A tentative settlement of the ease-ment litigation was announced in early 1978.Order 2987 was revoked in May 1978.125


FOOTNOTE REFERENCES FOR ALASKA NATIVE CLAIMSSETTLEMENT ACT

‘Act of December 18, 1971, Public Law 92-203, 85Stat. 688, codified at 43 U.S.C. 1601 (Supp, IV 1974).

243 U.S.C. 1603.3 See 43 U.S.C. 1605, 1608, 1611, 1613, 1616, and

1618. ‘443 U.S. C. 1606, 1607.543 U.S.C. 1616(d)(2)(A).81d.743 U.S.C. 1616(d)(2)(D).8The major Alaska Lands Bills introduced in the 95th

Congress are:H.R. 39, The Alaska National Interest Lands Conser-

vation Act, introduced by Representative Udall andsupported by the Alaska Coalition, an alliance of en-vironmental, conservation, and recreation organiza-tions (comparable measures include H.R. 1974 and H.R.2976);

S. 1500, Senate version of H.R. 39 introduced bySenator Metcalf (comparable measure, S. 500);

S. 1787, Alaska National Interest Lands Act, in-troduced by Senator Stevens of Alaska and supportedby Representative Young of Alaska and by GovernorHammond of Alaska;

S. 499, H.R. 6564, the original Morton proposal firstintroduced in the 93d Congress, Dec. 17, 1973; and

S. 2944, Alaska Lands Conservation and Manage-ment Act, introduced by Senator Gravel of Alaska.

The Carter Administration did not offer a separateD-2 proposal, but, instead recommended a series oftechnical amendments to H.R. 39 in hearings before theHouse and Senate Committees.

For a description and comparison of Alaska Landslegislation introduced in the 94th Congress, see FederalState Land Use Planning Commission for Alaska, “TheD-2 Book” Volume 11: Lands of National Interest inAlaska-” A Comparative Analysis, ” November 1977.

‘H.R. 39, 95th Cong., 2d sess., 124 Cong. Rec. H4329(daily ed. May 19, 1978). See also House Rept. 95-1045,pts. I and II (Alaska National Interest Lands Conserva-tion Act of 1978). On Oct. 15, 1978, the Senate a d -journed without acting on its version of Alaska Landslegislation. S, Rept. 95-1300, reported Oct. 9, 1978. Seealso 124 Cong., Rec. S19135 to S19141 (daily ed. Oct.14, 1978, pt. IV).

‘OTreaty of March 30, 1867, 15 Stat. 539.“Act of May 17, 1884, section 8,23 Stat. 24.‘zFederal Field Committee for Development Planning

in Alaska, Alaska Natives and the Land, 434 (1968).13 Act of July 7, 1958, Public Law 85-508, 72 Stat. 339,

48 U.S.C. Prec. $21 (1970).141d., section 4.‘5Alaska Natives and the Land, supra. note 12, at

439. Without Federal recognition of their rights, AlaskaNatives faced the threat that their aboriginal landsmight be disposed of by the Federal Government with-

out payment of just compensation. See Tee-Hit-Ton In-dians v. United States, 348 U.S. 272 (1955).

‘eAlaska Natives and the Land, at 440. By 1968, theseprotests covered 80 percent of the lands in the State.See Statement of Asst. Secretary of the Interior, GuyMartin, before the Subcommittee on General Oversightand Alaska Lands of the House Comm. on Interior andInsular Affairs, page 2, July 21, 1977. (HereinafterStatement of Asst. Secretary Martin).

1’34 F,R. 1025, Jan. 17, 1969. At his confirmationhearings, Interior Secretary-Designate Walter Hickel,the former Governor of Alaska, agreed to honor theUdall land freeze for 2 years.

1’43 U.S.C. 1601(a).“43 U.S.C. 1601(b).2043 U.S.C. 1603.2143 U.S.C. 1603(a).2243 U.S.C, 1603(b).2343 u.S.C. 1603(c).2443 U.S.C. 1604. The 12 regions, recognized in sec-

tion 5(a), roughly correspond to the geographic areasrepresented by the Native associations existing atpassage of ANCSA. 43 U.S.C. 1606(a). The 13th regionincludes all nonresident Natives who chose not to enrollin the 12 geographic regions. 43 U.S.C. 1606(c).

2543 U,S.C. 1604, as amended by the Act of January 2,1976, Public Law 94-204, section 1,89 Stat. 1145.

2bMorgan, “From Ketchikan to Barrow, ” AlaskaMagazine, May 1977, at 9.

2’43 U.S.C. 1602(b)2843 U.S.C. 1605(b).2943 U.S, C, 1606(C), originally, the %CI’etEIry ruled

that a majority of nonresident Natives had elected notto form an optional 13th region under section 7(c) ofANCSA. This decision was challenged and reversed.Alaska Native Ass’n of Oregon v. Morton, Civil ActionNo. 2133-73; A~aska Fed’n of Natives Int’1 v. Morton,Civil No. 2141-73 (D. D. C., filed Dec. 30, 1974). See alsoPublic Law 94-204, section 8,89 Stat. 1149.

3043 U.S,C, 1606(d), Section 7(e), 43 LJ. S.C. 16We), re-quires that the original articles of incorporation andbylaws of the corporation must be approved by the Sec-retary of Interior within 18 months of the enactment ofANCSA. The articles of incorporation may not beamended within 5 years of establishment of the Region-al Corporation without the approval of the Secretary.

Thirteen Native Regional Corporations were formedunder section 7 of ANCSA, 43 U.S.C. 1606. These cor-porations and their enrolled membership as of March23, 1978 are:

EnrolledRegion membershipAhtna, Inc. . . . . . . . . ... , . . . . . . . . . . . . . . . . . . . . 1,057Aleut Corporation. . . . . . . . . . . . . . . . . . . . . . . . . . . 3,124Arctic Slope Regional Corporation. . . . . . . . . . . . . . 3,710


EnrolledRegion membership

Bering Straits Native Corporation. . . . . . . . . . . . . . 6,271-— .

Bristol Bay Native Corporation . . . . . . . . . . . . . . . . 5,315Calista Corporation ... , . . . . . . . . . . . . . . . . . . . . .13,193Chugach Natives, Inc.. . . . . . . . . . . . . . . . . . . . . . . . 1,881Cook Inlet Region, Inc. . . . . . . . . . . . . . . . . . . . . . . . 6,052Doyon, Ltd.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8,905Koniag, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,267NANA Regional Corporation, Inc. . . . . . . . . . . . . . . 4,761Sealaska Corporation. . . . . . . . . . . . . . . . . . . . . .. .15,388The 13th Regional Corporation . . . . . . . . . . . . . . . . 3,997

SOURCE: Alaska Natives Regional Profiles, U.S. Dept. of the In-terior, Bureau of Indian Affairs, Report No. 269, October 1978.3’43 U,S.C. 1607.Szsee 43 U.S.C. 1606, 1611, and 1613.ssFOr a description of the business ventures of the

Alaska Native Corporations, see Morgan, “From Ketch-ikan to Barrow, ” Alaska Magazine, May 1!377 at 9 andMaska Native Regional Pro~iles, supra, note 30.

3443 U.S. C, 1606(h)(l). On Jan. 1, 1992, all Native cor-poration stock issued will be canceled and eachshareholder will receive new stock without any restric-tions on transfer on a share for share basis. 43 U.S.C.1606(h)(3).

3343 U.S, C. 1606(h)(2).3643 U.S. C. 1605( a~l).3743 U.s,co lG()!j(a)(2) and 1608 . See also 30 U.S.C.

191.3s43 U.S,C. 1608(d), section 6(g) of ANCSA as

amended by Public Law 93-153, the Trans-Alaska Pipe-line Act, section 407, 87 Stat. (1973), provides for ad-vance payments to the Alaska Native Fund chargeableagainst mineral leasing revenues to be paid under sec-tion 9 of ANCSA, 43 U.S.C. 1608(g). These advance pay-ments were authorized because of the delays in the con-struction of the Trans-Alaska Pipeline. Advance pay-ments stopped once the pipeline commenced delivery ofoil from the North Slope in the late summer of 1977.

3943 U.S,C, 1608(g).’43 U.S.C. 1605(a).4143 U.S.C. 1605(c).4243 U.S.C. 1606(d).4343 u,S,C. 1606(i).4443 u.S.C. 1606(j).4~See 43 u.S.C. 1606(i) and 1611. In the 95th Con-

gress, hearings were held before the Indian AffairsSubcommittee of the House Committee on interior andInsular Affairs on H.R. 12529, a bill providing for anequitable distribution of land to the 13th Regional Cor-poration.

*43 U.S.C. 1611 (22 million acres to Native villages,16 million acres to Regional Corporations); 43 U.S.C.1613 (2 million acres): 43 U.S.C. 1615 (230,400 acres toSoutheast Natives); 43 U.S.C. 1618 (4 million acres offormer Native Reserves]. In addition, some 800,000acres will pass to individual Natives under applicationsmade under various Native allotment acts and ap-proved after Dec. 18, 1975. See 43 U.S.C. 1617.

tTEligibility qualifications for Native village selec-

tions are set forth in section n(b)(2) (43 U.S.C.

1610(b)(2)), section 12 (43 U.S.C. 1611), section 14 (43U.S.C. 16) and section 16 [43 U,S.C. 1615) of ANCSA.

Of over 200 Native villages, 195 were determined tobe eligible for village selections (however, the eligibilityof one of these villages has been challenged in litigationbrought by some Alaskan residents). Ten more villagesare involved in litigation with the Department of the In-terior over eligibility. Three more villages which hadfiled selections under section 12(a] were found ineligi-ble by the Department. Statement of Asst. SecretaryMartin, supra, note 16 at page 16.

‘See 43 U.S.C, 161 l(a) and (b); 43 U.S,C. 1613(h); 43U.S.C. 1615,

4943 U.S.C. 161 3(f).’43 U.S,C. 1611(a)(l); 43 U.S,C, 1615(b).s’43 U.S.C. 1613(a), section 14(a), 43 U.S.C. 1613(a)

provides for village land entitlements for first roundselections under section 12(a) on the basis of popula-tion:

Native populationin 1970 census between Entitlement25 and 99. ., . . . . . . . . . . . . . . . . . . . . . . . . . 69,120 acres100 and 199. . . . . . . . . . . . . . . . . . . . . . . . . . 92,160 acres200 and 399. .., , . . . . . . . . . . . . . . . . . . . . .115,200 acres400 and 599. , ., ... , . . . ., . . . . . . . . . . . ..138,240 acres600 or more. , . . . . . . . . . . ., ., . . . . . . . . . .161,280 acresNative villages in southeast Alaska receive 23,040

acres regardless of population; 43 U.S.C. 1615. Second-round village selections are to be allocated among vil-lages by the Regional Corporations “on an equitablebasis after considering historic use, subsistence needs,and population;” 43 U.S,C. 1611(b).

5z43 U.S.C. 161 1(c)(3).5343 U.S, C. 1611(c), The 11 resident Regional Cor-

porations outside southeast Alaska will share in ap-proximately 16 million acres distributed according to a“land lost” formula based on the geographic area ofeach region set forth in section 12(c), 43 U.S.C. 1611(c).Land selections under section 14(h)(8], 43 U.S.C.1613(h)(8), will be allocated among all 12 residentRegional Corporations on the basis of population.

“43 U.S,C, 1614.SSBY 1977, less than 5 million acres of Native selec-

tions had been conveyed by the United States. Seediscussion of these delays in Statement of Asst.Secretary Martin, supra, note 16. See also, Hearings onAlaska Natural Resource Issues Before the SenateComm. on Energy and Natural Resources, 95th Cong.,1st sess. (1977) and Lazarus and West, “The AlaskaNative Claims Settlement Act: A Flawed Victory,” 40Law & Contemp. Prob. 132 (1976].

5643 U.S, C. 1610(a).5743 U.S.C. 1615(a).5s43 U.S. C. 1611.SS43 U.S.C. 1610( a~2), The purpose of these with-

drawals is explained in the ANCSA Conference Com-mittee Report:

Section 11 of the conference report withdrawslands around villages, including villages locatedon lands selected by or tentatively approved to the


State. This section also provides for the with-drawal of in lieu lands adjacent to the 25 townshiparea to insure that the land selection rights ofNative Villages and Regional Corporation will befully protected and will not be frustrated by com-peting State selections or the creation of new in-terests in lands under the public land laws.S. Rept. 92-581, 92d Cong., 1st sess., reprinted in

Subcomm. on General Oversight and Alaska Lands ofthe House Comm. on Interior and Insular Affairs, 95thCong., 1st sess., Background Information for AlaskaLands Designations (Comm. Print No. 4, 1977) at 72.

6043 U.S.C. 1610(a)(3).6143 U.S. C. 1610( a], 43 U,S. C. 1615( a]. These lands

and others were withdrawn under Public Land Orders5169 to 5188, 37 F.R. 5572-5591, Mar. 16, 1972.

6243 U.S,C. 1615, section 16(b), 43 U.S.C. 1615(b), au-thorizes selection of 23,040 acres by each of nineNative villages listed in section 16(a), 43 U.S.C. 1615(a).The Native village of Klukwan is entitled to select23,040 acres by section 16(d), 43 U.S,C. 1615(d), asamended by Public Law 94-456, section l(b), 90 Stat.1934, Oct. 4, 1976. The villages in southeast Alaska hadalready participated in a monetary judgment againstthe United States and therefore were given a smallerland settlement than other Native regions underANCSA. See 43 U.S.C. 1615(c).

6343 U.S.C. 1611(a) and (b).6443 U.S.C. 161 l(c).‘ 5 See 43 U.S.C. 1610(a)(2) and 43 U.S.C. 1o11 .

See Background Memorandum on section 17(d)(2) of theAlaska Native Claims Settlement Act to Members,Senate Comm. on Interior and Insular Affairs fromSteven P. Quarles, Counsel, Nov. 12, 1975 at 7 (herein-after “Memorandum”). Other State selections are pro-tected by the definition of “public lands” in section 3(e)of ANCSA, 43 U.S.C. 1602(e):

“Public lands” means all Federal lands and in-terests therein located in Alaska except: (1) thesmallest practicable tract, as determined by theSecretary, enclosing land actually used in connec-tion with the administration of any Federal in-stallations, and (2) land sections of the State ofAlaska which have been patented or tentativelyapproved under Sec. 6(g) of the Alaska StatehoodAct, as amended (72 Stat. 341, 77 Stat. 223), oridentified for selection by the State prior to Jan.17, 1969.8643 U.S.C. 1613(h). When the land selections regula-

tions were developed in 1973, an allocation formula forthis 2 million acres was agreed upon between the De-partment and Native representatives. This allocation(43 CFR 2653 .l(a)) provides the following:

500,000 acres—25,000 acres to each region;200,000 acres to regions on population percent-ile, cemetary and historical sites, groups, andindividual Native residents;

92,160 acres—23,040 acres to each of the four ur-ban corporations;

400,000 acres—for Native allotments approved

by December 1975 (195,ooo acres actually ap-proved);

Balance—to regions on population basis.See Statement of Asst. Secy. Martin, supra note 16, at22.

13T43 U,S.C. 1617(a). These Native allotments were au-thorized by the Alaska Native Land Allotment Act, Actof May 7, 1906, c.2469, 34 Stat, 197, as amended by theAct of August 2, 1956, c,891, 70 Stat. 954 (repealed bysection 18(a) of ANCSA, 85 Stat. 710) and by the gener-al allotment provisions of 25 U,S,C. 334 and 337. TheAlaska Native Land Allotment Act provided for anallotment of 160 acres of nonmineral land to AlaskaNatives meeting certain residency requirements. Frompassage of the Act to 1960, only 80 allotment patents—most of them in southeastern Alaska—were issued. Al-lotment applications covering approximately 1.2 millionacres were pending on passage of ANCSA.

’843 U.S,C. 1617(b).“gBased on acreage figures supplied by the Depart-

ment of the Interior to Richard W. Wright of the OTAMaterials Program staff in July 1977.

7043 U.S.C. 1618(b),7}43 U.S.C. 1618(b). See Statement of Asst. Secy. Mar-

tin, supra, note 16 at 22.72 See 43 CFR 2651.4(f) (village selections); 43 CFR

2652.3(f) (Regional Corporation selections); and 43 CFR2653.9(b) (section 14(h) selections).

Approximate Entitlements & Overselections(in millions of acres)

set. set.Type entitlement selectionVillage first round (12(a) & 16(b),

(includes southeast)). . . . . . . . . . . 18-20 30Village second round [12(b)). . . . . . . 4-2 30Regional (12(c)). ... , . . . . . . . . . . . . 16 35Miscellaneous (14(h)) . . . . . . . . . . . . 2 10Former reserves (19(b)) ... , , . . . . . 4 4

Total . . . . . . ... , ... , . . . . . . . 44 1 10**Overlaps betwaen types of selections occurred. The total of 110 million

acres is the estimated net area selected,SOURCE: Statement of Asst. Secy. Martin, supra, note 16 at 5.

7343 U.S.C. 1621(h).7443 U.S.C. 1616(d)(l), See Public Land Orders 5169

to 5188, 37 F.R. 5572-5591, Mar. 16, 1972 and subse-quent amendments.

75See, for example, the arrangements by Bristol BayNative Corporation, Arctic Slope Regional Corporationand Chugach Natives, Inc. described in Morgan, supra,note 26. Doyon Ltd. is planning to exploit asbestosdeposits in the Yukon-Charley region. H.R. 39 as passedby the House on May 19, 1978 included a special provi-sion authorizing rights-of-way through the proposedForty Mile Wild and Scenic River area to accommodateDoyon’s mineral enterprise. See H.R. 39, section 501,95th Cong., 2d sess. (1978).

7643 U.S.C, 1616(d)(2).771d.7sId,‘ePublic Land Order 5179, 37 F.R. 5579, Mar. 16,

1972, modified because of a consent agreement be-


tween Dept. of Interior and the State of Alaska. SeePublic Land Orders 5250 through 5257, 37 F,R. 18730,Sept. 15, 1972, 37 F.R. 18911 to 18916, Sept. 16, 1972and 37 F.R. 19370, Sept. 20, 1972. The text of the settle-ment of State of Alaska et aL v. Morton is reprinted inthe House Report on H.R. 39, H. Rept. 95-1045, pt. I,95th Cong., 2d sess., 403 (1978).

’43 U.S.C. 1616(d)(2).81The Morton proposal was originally introduced in

the 93d Congress as H.R. 12336 and S. 2917. It wasreintroduced in the 94th Congress as H.R. 6089 and S.1617, In the 95th Congress, the Morton proposal was in-troduced as H.R. 6564 and S. 499.

ez43 u.S.C, 1616(d)(2).Essee public Land order 5179 as modified, suPra!

note 79.8443 u.S.C, 1616(d)(l).“Id.‘Id.8743 U.S.C. 1610( a~l).%ee Public Land Orders, supra, note 79.‘eSee, for example, Public Land Orders 5185 and

5186, 37 F.R. 5588 to 5589, Mar. 16, 1972.‘At the request of the State of Alaska, Public Land

Order 5418, 39 F.R. 11547, Mar. 25, 1975 closed to fur-ther entry public lands that had been made available toselection under Public Land Order 5185, 37 F.R. 5588,Mar, 16, 1972.

gl~blic Law 94-579, 90 Stat. 2785, 43 U.S.C. 1782.‘2BLM Draft Proposed Wilderness Policy and Review

Procedure, Feb. 27, 1978, at p. 17. See also Office of theSolicitor, Application of Mining and Grazing Laws toAreas Under Review for Inclusion into Wilderness Sys-tem: Section 603, Federal Land Policy and ManagementAct of 1976, Jan. 8, 1978 (Opinion), and the followingOrganic Act Directives: OAD 76-15, Dec. 14, 1976; OAD77-21, Feb. 16, 1977; and OAD 77-29, Mar. 15, 1977.

9343 u.S.C, 1616(a)(l).9443 U.S.C. 1616( a~l)(A).“Id.“43 U.S.C. 1616(a~l)(B).’743 U.S.C. 1616(a~2).‘eId.9943 U.S.C. 1616( a~3).1OOS. Rept, 92-581, 92d Cong., 1st sess., reprinted in

Subcomm. on General Oversight and Alaska Lands ofthe House Comm. on Interior and Insular Affairs, 95thCong., 1st sess., Background Information for AlaskaLands Designations (Comm. Print No. 4, 1977) at 5.

l“lpublic Law 94-204, section 7,89 Stat. 1149.10243 U.S.C. 1616( a~7).‘0343 U.S.C. 1616(b)(l).

‘W43 U.S.C. 1616(b)(2).10’43 U.S.C. 1616(b)(3).1~43 U.S.C. 1616(c). The Secretary withdrew the

pipeline right-of-way on Dec. 28, 1971, Public LandOrder No. 5150,36 F.R. 25410.

‘“’ Order No. 2982, Reservation of Local Easements,41 F.R, 6295, Feb. 12, 1976; Order No. 2987, Reserva-tion of Easements for the Transportation of Energy,Fuel, and Nonfuel Resources, 41 F.R. 11331, Mar, 18,1976, #

lW41 F.R, 6295, Feb. 12, 1976.IWId.‘l”Order No. 2982, Sec. 4,41 F.R. 6295, Feb. 12, 1976.1]]Alaska Public Easement Defense Fund v, Andrus,

435 F. Supp. 664 (D. Alas. 1977) reprinted in Hearingson Inclusion of Alaska Lands in National Park, Forest,Wildlife Refuge, and Wild and Scenic Rivers Systemsbefore the Subcomm. on General Oversight and AlaskaLands of the House Comm. on Interior and Insular Af-fairs, 95th Cong., 1st sess,, pt. XV, at 354 (Ser. No.95-16, 1978),

1’241 F.R. 11331, Mar. 18, 1976.1130rder No. 2987, Sec. 4,41 F.R. 11332 (1976).l]40rder No. 2987, Sec. 2,41 F,R. 11331 (1976).llsId,“@Id.l’70rder No. 2987, Sec. 4,41 F.R. 11332 (1976).1 ]BId.‘tgLawsuits were filed by the Alaska Federation of

Natives and six Native Regional Corporations and sepa-rately by Sealaska Corp. in the Federal District Court inWashington, D.C. These cases were consolidated andtransferred to Federal Court in Alaska and there joinedwith another case brought by the Alaska Public Ease-ment Defense Fund which alleged that the Secretaryhad failed to reserve sufficient public easementsacross Native lands. See 435 F. Supp 667, n. 1.

‘20Alaska Public Easement Defense Fund v. Andrus,435 F. Supp 664, (D. Alas. 1977).

‘2’435 F. %Jpp. 677 to 679,‘22435 F. Supp. 679 to 680.‘23435 F. fhq)p. 680 to 681,‘24See hearings on Inclusion of Alaska Lands in Na-

tional Park, Forest, Wildlife Refuge, and Wild andScenic Rivers Systems Before the Subcomm. on GeneralOversight and Alaska Lands of the House Comm, on In-terior and Insular Affairs, 95th Cong., 1st sess., pt. XV,at 128 (Ser. 95-16, 1978). See also, the Secretarial IssuePapers on ANCSA Easement Policy and Procedures, Id.at 504 to 540.

‘25 Secretarial Order 2987 was revoked by SecretarialOrder No, 3020,43 F.R. 19726, May 8, 1978.


In recent years, Congress has passed threelaws that establish special rules for the ac-cess use of some Federal land involved inenergy-related projects.1 One of these laws,which changed the management of the NavalPetroleum Reserve No. 4 in Alaska, trans-ferred authority for making decisions onright-of-way requests from the Secretary ofthe Navy to the Secretary of the Interior.2 Itdid not, however, effect any other change inthe laws and regulations which control ac-cess policies for that particular Federal in-stallation. The other two laws, which estab-lished procedures for construction of theAlaskan oil and natural gas pipelines, madewholesale changes in the procedures thatwere used in granting rights-of-way for suchprojects.

NAVAL PETROLEUM RESERVESPRODUCTION ACT OF 1976

Four naval petroleum reserves on the pub-lic lands were created by Presidential orderbetween 1912 and 1923.3 One of these, NavalPetroleum Reserve Numbered 4 (NPR-4), waslocated in Alaska. Title I of the Naval Petro-leum Reserves Production Act of 1976 trans-ferred administration of the area in NPR-4 tothe Secretary of the Interior and redesig-nated it as the National Petroleum Reserve inAlaska (NPRA).4 A small tract on which theNaval Arctic Research Laboratory in PointBarrow is located and surface lands to betransferred to Native villages under ANCSAare excluded from the reserve although theyare located within its exterior boundaries.5

Subject to existing rights, lands within theboundaries of the reserve were withdrawnfrom all forms of entry and appropriationunder the public land laws, including theMining Law of 1872 and the Mineral LeasingAct of 1920.6 Areas around the Utukok Riverand the Teshekpuk Lake regions were placedin a special protected category.7 Exploration


in these areas must be conducted in a mannerto preserve significant subsistence, recrea-tional, fish and wildlife, and historic or scenicvalues. 8

Immediate responsibility for activities re-lated to the protection of the environment,fish and wildlife, and historic or scenic valuesof the lands involved was vested in the Secre-tary of the Interior effective on enactment ofthe legislation.9 Other functions were trans-ferred 1 year later so that Navy and Interiorpersonnel could work together during a win-ter season to provide experience in manage-ment and ensure a smooth transfer.10

The Act provides that only exploration ac-tivities will be allowed on the reserve, andthat no production or development leading toproduction is authorized without congres-sional review and authorization.11 Continuedoperation of South Barrow field for local useis permitted. The Act directs that threestudies of the area be conducted.12 These in-clude the study called for by section 164 ofthe Energy Policy and Conservation Act13 anda Presidential study of the petroleum re-source value of the area to determine the bestoverall plan for development, production, andtransportation of petroleum resources in thereserve. 14 The latter report is to be made toCongress by January 1, 1980.

The third study is to be conducted by theSecretary of the Interior in consultation withrepresentatives of Federal agencies, theState of Alaska, and Native groups, to deter-mine the values of and the best uses for landswithin the reserve. *5 The study is specificallyrequired to examine (1) the needs of theNatives who live or depend on lands in thereserve, (2) scenic, historic, recreational, fishand wildlife, and wilderness values, (3) min-eral potential, and (4) other values. ’b TheSecretary is to submit a report, includingrecommendations for appropriate designa-tions of land, by April 1979.


Section 102 authorizes the Secretary to“grant such rights-of-way, licenses, and per-mits as may be necessary to carry out his re-sponsibilities under this Act.”17 The same sec-tion also provides that, “All other provisionsof law heretofore enacted and actions hereto-fore taken reserving such lands as a NavalPetroleum Reserve shall remain in full forceand effect to the extent not inconsistent withthis Act.”18 These two provisions takentogether have the following effect: Right-of-way applications for access within the re-serve must comply with the procedures estab-lished under the general authority of theSecretary of the Interior;19 the substantivelaw that governs Secretarial decisionmakingwill include any standards controlling thegeneral authority as construed in light of theReserves Act and other laws that previouslyapplied to NPR-4.20 Until such time as Con-gress acts on recommendations of the Secre-tary of the Interior for redesignation, accessto non-Federal mineral resources will be aless favored use for lands in NPRA.

TRANS-ALASKA PIPELINE ACT

In the winter of 1967-68, a wildcat rig drill-ing Prudhoe Bay State Well No. 1 struck a for-mation that proved to be the largest oil re-serve on the North American continent.21 Thediscovery was announced on July 18, 1968.22

Fourteen months later, the State of Alaskaauctioned off leases on 450,000 acres ofPrudhoe Bay for $900 million.23

Even before the lease sales, the three oilcompanies already holding producing leasesat Prudhoe Bay had organized the Trans-Alaska Pipeline System (TAPS) and filed anapplication with the Department of the In-terior to build an 800-mile hot-oil pipeline toValdez. 24 TAPS sought a waiver from the Fed-eral land freeze imposed because of theNative claim controversy for the pipeline anda 360-mile North Slope haul road.25 A waiverfrom the land freeze was approved in Decem-ber 1969, and in early 1970 the Departmentof 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 theYukon River. Extending from Fairbanks to Prudhoe Bay, the road was transferred to State ownership in the fall of 1978


the haul road when a series of lawsuitsbrought the project to a halt.26

In March 1970, five Native villages alongthe proposed route filed suit claiming owner-ship of the affected land by virtue of theiraboriginal land rights.27 Shortly thereafter,three conservation groups filed suit contend-ing that the pipeline violated the 1920 Miner-al Leasing Act—under which rights-of-waywere being sought—and the newly passedNational Environmental Policy Act (NEPA).28

On April 13, 1970, a temporary injunctionwas granted in the latter case, blocking thepipeline project and prohibiting the Secretaryof the Interior from issuing a permit. 29

In 1971, several actions were taken by Con-gress and the executive branch to seek tobreak the impasse. Passage of the Alaska Na-tive Claims Settlement Act (ANCSA) endedthe controversy over Native landownership.30

The Department of the Interior held lengthyhearings during 1971 on the environmentalimpact of the pipeline proposals and releasedan environmental impact statement (EIS) onMarch 20, 1972. On August 15, 1972, the tem-p o r a r y i n j u n c t i o n was dissolved af ter a nopinion by the District Court that the require-ments of NEPA had been met and that the De-partment of the Interior could issue a s p e c i a luse permit to allow the pipeline builders morethan the 50-foot right-of-way permitted by theMineral Leasing Act. 31

On February 9, 1973, the Court of Appealsreversed this ruling and again enjoined theSecretary f rom issuing a r ight-of -way .32 I tfound that the Department of the Interior hadexceeded its statutory authority in proposingto grant the special right-of-way and land u s ep e r m i t s . T w o m o n t h s l a t e r , t h e S u p r e m eCourt refused to review this decision. 33

This chain of events provided the impetusfor the passage, on November 16 , 1973 , ofPubl ic Law 93-153 general ly known as theTrans-Alaska Pipel ine Act ,34 Title 1 of PublicLaw 93-153 amended section 28 of the Min-eral Leas ing Act , which provides r ights-of -way across Federal lands for oil pipelines. 35

The most important amendment a l lows the

Department of the Interior to grant rights-of-way in excess of 50 feet where a wider r ight -of-way is found to be “necessary for opera-tion and maintenance after construction, o rto protect the environment or public safety.” 36

Other provisions of the amended section 28also have a bear ing on the use of F e d e r a llands for pipel ine r ights-of-way. Sect ion 28authorizes pipel ine r ights-of -way over a l lFederal lands except nat ional parks , landsheld in trust for Indian tribes or an I n d i a n ,and land on the Outer Continental Shelf. 37 Apipel ine r ight-of -way may not be g r a n t e dthrough any reserved Federa l lands i f theS e c r e t a r y or the a p p r o p r i a t e a g e n c y h e a dmanaging the land determines that it wouldbe inconsistent with the purpose of the reser-vat ion. 38 The agency head may impose appro-priate regulations, terms, and conditions o nthe right-of-way, including provisions for e n -vironmental protection and restoration, pub-l ic safety , protect ion of f ish, wildl i fe , andhabitat values, and subsistence resources. 39

Title I also requires that the applicant dem-onstrate the technical and financial capabil-ity to construct, operate, maintain, and termi-nate the project in accordance with the stat-utory conditions.40 Each right-of-way reservesto the Secretary or agency head the right togrant additional rights-of-way for compatibleuses on or adjacent to the pipeline.41 T h eSecretary was directed to prepare a reporton the need for a national system of trans-portation and utility corridors across Federallands in order to minimize adverse environ-mental impacts and to prevent the prolifer-ation of rights-of-way across Federal lands.42

This report was presented to the Presidentand Congress.

Title II of Public Law 93-153 is the Trans-Alaska Pipeline Authorization Act.43 It man-dated expedited administrative action on theTAPS project. The Act provided that no fur-ther NEPA review was to be undertaken andcontained a legislative finding of sufficiencyof the final EIS issued by the Department ofthe Interior on March 20, 1972.44


Furthermore, it limited administrative andjudicial review of any certificates, rights-of-way, permits, and licenses related to or nec-essary to the construction, operation, andmaintenance of TAPS including roads andairstrips.45 Executive agencies and depart-ments were ordered to issue necessary per-mits. Judicial review was limited in scope andthe time for filing claims was limited to 60days from any contested action; this meantthat opportunities for redress, review, orrelief in Federal or State courts were cut off.In exchange for this limitation on judicial andadministrative remedies, strict liability wasimposed for incidents harming wildlife andsubsistence resources and for spillage in-cidents.46 Strict liability for harm to wildlifeand subsistence was limited to $50 millionper incident and liability for oilspills waslimited to $100 million.47 Damages from con-struction, operation, and maintenance, etc.,greater than $50 million are to be decided ac-cording to the laws of negligence. Claimsgreater than $100 million for spillage are tobe decided in judicial proceedings or by ar-bitration. A TAPS liability fund was estab-lished to pay damages from oilspills. This wasto be funded by $0.05 per barrel paid by theowner of the oil transported.48

The Act further provided that the roadsand airstrips constructed for the projectcould be public roads or airstrips.49 The con-tractor has arranged to turn over the pipelinehaul road to the State of Alaska. It is antic-ipated that it will eventually be open to thepublic. If the State fails to operate the haulroad as a public road, it may be required topay back Federal funds received for bridgeand road construction in anticipation of even-tual public highway designation.50

Section 407 of the Act authorized advancepayments of royalties due Alaska Nativesunder the terms of ANCSA.51 These advancepayments were provided in recognition of thedelays in construction of the oil pipeline totransport North Slope crude oil. Advancepayments will continue until such time asdelivery of North Slope oil to a pipeline is

commenced. TAPS began operation in thesummer of 1977.

ALASKA NATURAL GASTRANSPORTATION ACT OF 1976

The Prudhoe Bay oilfield contains over 20trillion cubic feet of natural gas, approx-imately 10 percent of the known gas reservesin the United States. It is also in close prox-imity to similar large gas deposits in theMackenzie Delta region of Canada. In March1974, the Arctic Gas consortium filed appli-cations with the Federal Power Commission(FPC) and the Canadian National EnergyBoard to construct a pipeline to moveAlaskan and Canadian gas to the UnitedStates and Canada by an overland route.52 InSeptember 1974, El Paso Alaska Companyfiled an application with the FPC to transportPrudhoe Bay gas by a pipeline adjacent toTAPS to the Gulf of Alaska, liquefy it, andship it to California by LNG tanker.53 A hear-ing began on the competing applicationsbefore the FPC on April 7, 1975. In July 1976,a third application was filed by Alcan Pipe-line Company for an Alaska-Canada overlandroute.54

Faced with the prospect of long adminis-trative and judicial proceedings (the FPChearings consisted of 45,000 pages and over1,000 exhibits), and a protracted process ofaccumulating lands for the right-of-way of theapproved pipeline, Congress acted in 1976.The Alaska Natural Gas Transportation Actof 1976 (ANGTA) established an expeditedprocedure for selecting a transportation sys-tem and facilitating its construction and ini-tial operation.55

The steps called for by the Act in selectinga pipeline applicant have been completed.The Act suspended the proceedings beforethe FPC and took the authority to make a deci-sion away from that agency.56 Instead, theFPC was directed to review the applicationsand make a recommendation to the Presidentby May 1, 1977.57 This the Commission did,and recommended the Canadian overland


route, although it divided 2-2 on the choice be-tween Alcan and Arctic Gas.58 The Commis-sion also prepared an EIS to accompany therecommendation.

The President was required to review theFPC recommendation and issue a decisionand report to Congress prior to September 1,1977 or within 90 calendar days if additionaltime was needed.59 Before that decision wasissued, the Council on Environmental Qualitywas directed to hold hearings on the EIS pre-pared by the FPC and transmit a report to thePresident on the legal and factual sufficiencyof the statement.6O The Presidential decisioncould recommend waivers of provisions ofexisting laws to permit expeditious construc-tion and operation of the system.61

The President issued a decision on Septem-ber 22, 1977, selecting the Alcan proposal.62

The Presidential decision could only take ef-fect if approved by a joint resolution of bothHouses of Congress passed within 60 days ofreceipt of the decision.63 In addition to affirm-ing the Presidential decision including anywaivers of law, the joint resolution pre-scribed in the Act contains a congressionaldeclaration of the sufficiency of the EIS sub-mitted by the President.64 The joint resolutionwas approved on November 8, 1977.65

The Act contains limitations on judicialand administrative review similar to thosefound in the Trans-Alaska Pipeline Author-ization Act. Claims alleging the invalidity ofthe Act must be filed within 60 days of theenactment of the joint resolution.66 Judicialreview of the actions of Federal officers andagencies may be had only under the provi-sions of section 10 of the Act.67 Claims alleg-ing that an action taken pursuant to authoritygranted in the Act violated constitutionalrights or were in excess of statutory jurisdic-tion, authority, or limitations, or did notsatisfy statutory rights must be broughtwithin 60 days of the challenged action or no

later than 60 days after the complaining par-ty has actual or constructive knowledge ofthe action.68 All claims brought under the Actmust be filed in the U.S. Court of Appeals forthe District of Columbia, which is directed toexpedite review of any claims.69 No court hasjurisdiction to consider questions relating tothe environmental impact statements.70

The Act directs Federal officers and agen-cies to grant or issue certificates, rights-of-way, leases, and permits necessary to or re-lated to the construction or initial operationof the system at the earliest possible date andto the fullest extent permitted by the laws ad-ministered by the agency71 (without regard toany provisions of law that were waived) .72 Allactions to which this directive applies are tobe expedited and shall take precedence oversimilar applications and requests.73

The Act places some limitations on the con-ditions that may be included in certificates,rights-of-way, leases, and permits.74 Officersand agencies granting such rights shall in-clude terms and conditions required by thelaws they administer (to the extent that suchlaws have not been waived), and shall also in-clude provisions identified in the President’sdecision as appropriate for inclusion.75 Withrespect to conditions or terms that are per-mitted by law, but not required, they may beincluded unless they “would compel a changein the basic nature and general route of theapproved transportation system, or wouldotherwise prevent or impair in any significantrespect the expeditious construction and ini-tial operation” of the system.76

Finally, the Act provides that any pipelinesystem right-of-way over Federal lands is tobe issued under the authority of the MineralLeasing Act of 1920 as amended. Thus allFederal rights-of-way will include a provisionthat the managing agency may allow use ofthe right-of-way by additional compatibleusers. 77

4!-1- flfl.4 ( ) . 7[] . 10


FOOTNOTE REFERENCES FOR OTHER LAWS

‘Naval Petroleum Reserves Production Act of 1976,Public Law 94-258,90 Stat. 303, Apr. 5, 1976,42 U.S.C.6501 et seq.; The Trans-Alaska Pipeline Act, PublicLaw 93-153, 87 Stat. 584, Nov. 16, 1973; The AlaskaNatural Gas Transportation Act of 1976, Public Law94-586, 90 stat. 2903, C)ct. 22, 1976, 15 U.S.C. 719 etseq.

‘Naval Petroleum Reserves Production Act of 1976,Public Law 94-258,90 Stat. 303, Apr. 5, 1976,42 U.S.C.6501 et seq.

3The reserves are: Naval Petroleum Reserve No. 1(Elk Hills) located in Kern County, Calif., established byExecutive Order, Sept. 2, 1912; Naval Petroleum Re-serve No, 2 (Buena Vista) located in Kern County, Calif.,established by Executive Order, Apr. 30, 1915; NavalReserve No, 3 (Teapot Dome) located in Wyoming,established by Executive Order, Apr. 30, 1915; andNaval Petroleum Reserve No, 4, located in Alaska,established by Executive Order, Jan. 27, 1923.

442 U.S.C. 6502 (redesignation); 42 U.S. C. 6503(transfer of jurisdiction).

542 U.S.C. 6502. The tract on which the Naval ArcticResearch Laboratory is located is tract No. 1 asdescribed in Public Land Order 2344, Apr. 24, 1961, 26F.R, 3701.

“42 U.S.C. 6502.742 U.S.C. 6504(b).842 U.S.C. 6504(b). “Any exploration within the

Utokok River, the Teshekpuk Lake areas, and otherareas designated by the Secretary of the Interior con-taining any significant subsistence, recreational, fishand wildlife, or historical or scenic value shall be con-ducted in a manner which will assure the maximumprotection of such surface values to the extent consist-ent with the requirements of this Act for the explora-tion of the reserve. ”

’42 U.S. C. 6503(b).‘OS. Rept. 94-708 (Conference Report) at p. 15, The

Secretary of the Interior has assigned interim manage-ment responsibility for NPRA to the Assistant Sec-retary for Land and Water Resources. Statement ofHon. James Joseph, Undersecretary of the Interior inHearings on Alaska Natural Resource Issues Before theSenate Comm. on Energy and Natural Resources, 95thCong., 1st sess. (Pub. No. 95-64, 1977) at 102 (here-inafter, Alaska Natural Resource Issues), Regulationsgoverning NPRA are found at 43 C.F.R. 2360 (1977) and42 F,R, 28721, June 3, 1977,

1142 U.S. C. 6504(a). Provision for the continuedoperation of the South Barrow gasfield is at 42 U.S.C.6504(e).

‘zPublic Law 94-258, section 105, 90 Stat. 305, 42U.S.C. 6505,

’342 U.S.C. 6244.1442 U.S.C. 6505.I’Id.

Wublic Law 94-258, section 105(c), 90 Stat. 306, 42U.S.C. 6505: “(l) The Secretary of the Interior shallestablish a task force to conduct a study to determinethe values of, and best uses for, the lands contained inthe reserve, taking into consideration (A) the nativeswho live or depend upon such lands, (B) the scenic,historical, recreational, fish and wildlife, and wilder-ness values, (C) mineral potential, and (D) other valuesof such lands. (z) Such task force shall be composed ofrepresentatives from the government of Alaska, theArctic Slope Native community, and such offices andbureaus of the Department of the Interior as theSecretary of the Interior deems appropriate, including,but not limited to, the Bureau of Land Management, theUnited States Fish and Wildlife Service, the UnitedStates Geological Survey, and the Bureau of Mines. (3)The Secretary of the Interior shall submit a report,together with the concurring or dissenting views, ifany, of any non-Federal representatives of the taskforce, of the results of such study to the Committees onInterior and Insular Affairs of the Senate and House ofRepresentatives within 3 years after the date of enact-ment of this title and shall include in such report hisrecommendations with respect to the value, best use,and appropriate designation of the lands referred to inparagraph (l), ”

1742 U.S.C. 6502.1aId,‘gSee 43 CFR 2361.2 (1977), See also 43 CFR 2800.2043 U.S.C, 1601,‘lExecutive Office of the President, Energy Policy and

Planning, Decision and Report to the Congress on theAlaska Natural Gas Transportation System, Sept. 22,1977 (hereinafter “Decision”), pi.

ZZHanrahan and Gruenstein, Lost Frontier: the ~Qr-

keting of AJaska, 125 (1977).Z’Id.zqThe three companies were the Atlantic Richfield

Company, Humble Oil and Refining Company (nowEXXON Corporation), and British Petroleum Ltd. Theyfiled an application with the Department of the Interioron June 6, 1969. After the lease sale, the following com-panies became partners in TAPS: Standard Oil of Ohio,Phillips Petroleum, Union Oil and Amerada Hess. TAPSformally incorporated as the Alyeska Pipeline ServiceCompany, Inc.

Zssee generally, Mary Clay Berry, The Alaska ~“pe-line; The Politics of Oil and Native Land Claims, 102 to123 (1975). The land freeze was imposed in 1966 bySecretary of the Interior Stewart Udall and formalizedby Public Land Order 4582, 34 F.R. 1025, Jan, 17, 1969,The new Secretary of the Interior, Walter Hickel,agreed to honor the freeze for 2 years in order to allowcongressional action on the Native claims issue.However, under pressure from the oil companies andthe State of Alaska, Secretary Hickel set up a task force


to expedite planning and approval of the TAPS requestand successfully negotiated with House and SenateCommittees to obtain their consent to the TAPS waiver.

‘fiSee Public Land Order 4760, 35 F.R. 424, Jan, 7,1970. See also Berry, supra, note 25 at 116 to 118.

27These villages are Stevens, Rampart, Bettles, Min-to, and Huslia-Hughes. The village chiefs had earliernegotiated with the pipeline consortium for a waiver ofNative objections to the pipeline route based on landclaims in exchange for an understanding by TAPS tocontract with Native-owned firms and firms willing toemploy Natives. When TAPS announced some of itscontract awards in January 1970 that did not includeNative firms, the Natives sued. See Bryan Cooper,Alaska-The Last Frontier, at 203 to 205 (1973). Seealso Berry, supra note 25 at 116-120. The five villagesbrought suit in Federal District Court in Washington,D. C,, to enjoin the Department of the Interior from ap-proving the pipeline right-of-way. Four of the five ac-tions were dismissed. But in March 1970, a restrainingorder was issued on behalf of Stevens Village tempo-rarily barring the issuance of a right-of-way for 20miles covered by village claims located near theplanned Yukon River pipeline crossing. In NativeVillage of Allakaket v. I-Iicke], Civ. No. 706-70 (D. D. C.,Oct. 18, 1972), the District Court enjoined constructionof the pipeline across Native lands.

28 Wilderness Society v. Hicke], Civ. A. No. 928-70;The plaintiffs were the Wilderness Society, the En-vironmental Defense Fund, and Friends of the Earth.

‘gWi]derness Society v. Hicke], 325 F. SUPP. 422(D.D.C. 1970).

30ANSCA extinguished all Native land claims based

upon aboriginal title or use, 43 U.S. C. 1703, and pro-vided that there could be no State or Native land selec-tions along any utility and transportation corridorwithdrawn for the pipeline, 43 U.S.C. 1716(c).

slwi]derness society v, Morton, 3 ELR 20583, 4 ERC1101. In order to expedite appeals, there was never areported decision accompanying the order lifting the in-junction.

32 Wilderness Society v. Morton, 479 F. 2d 842 (D.C.Cir. 1973).

33411 Us. 917 (1973).sqAn Act t. Amend Sec. 28 of the Mineral Leasing Act

of 1920 and to Authorize a Trans-Alaska Oil Pipelineand for other purposes, Public Law 93-153, 87 Stat.576, NOV. 16, 1973.

s~~blic Law 93-153, section 101, 87 Stat. 576, 30U.S.C. 185. Section 28(d) of the Mineral Leasing Act of1920, 30 U.S.C. 185(d), as amended by Public Law93-153, section 101,87 Stat. 576.

3%ection 28(d) of the Mineral Leasing Act of 1920, 30U.S.C, 185(d), as amended by Public Law 93-153, sec-tion 101,87 Stat. 577 (1973].

3730 U.S.C. 185(a), as amended by Public Law 93-153,section 101, 87 Stat. 576 (1973). See also 30 U.S.C.185(b)(l), as amended, 87 Stat. 577 (1973).

3a30 U,S.C. 185(b)(l), as amended, 87 Stat. 577 (1973).Sg30 U.soc. 185(h)(2), as amended, 87 Stat. 578 (1973)+

4030 U.S.C. 185(j), as amended, 87 Stat. 579 (1973).4’30 U.S.C, 185(P), as amended, 87 Stat. 580 (1973).4230 U.S.C. 185(s), as amended, 87 Stat. 582 (1973).

The report called for by this section was submitted tothe Congress on July 1, 1975. Department of the Interi-or, Bureau of Land Management, The Need for a Na-tional System of Transportation and Utility Corridors.

43Section 201, Public Law 93-153.87 Stat. 584 (1973).4443 u.S, C, 1652(d).‘sId.4’43 U.S,C, 1653(a)(l) establishes strict liability for in-

cidents involving the pipeline. 43 U.S.C. 1653(c)(1) es-tablishes strict liability for oilspills from vessels loadedwith oil transported through the pipeline. 43 U.S.C.1653(c)(2) imposes strict liability for oil pipeline in-cidents.

47 See 43 U.S.C. 1653(a)(2) and 43 U.S.C. 1653(c)(2).’43 U.S. C. 1653(c)(4) establishes the fund; 43 U.S. C.

1653(c)(5) levies the 5 cents per barrel tax.4’43 U.S,C. 1655.sOThe State of Alaska received Federal aid for the

construction of the haul road with the understandingthat the road would become part of the State highwaysystem. If the haul road is not opened to public use,Alaska might have to repay some $24 million for con-struction of the Yukon River bridge, $1.5 million forconstruction surveillance, and $2.8 million worth ofgravel from Federal lands. Gov. Jay S. Hammond, NorthSlope Haul Road Policy Statement and Background,September 1976.

51 Section 407, Public Law 93-153, 87 Stat. 591, 43U.s.c. 1608.

52FPC Docket No. CP 74-239.NFpC Docket No. CP 75-96.54The Alcan application was filed after FPC ad-

ministrative proceedings had commenced on the othertwo applications in FPC Docket No. 75-96 et al. Thedecision by Administrative Law Judge Nahum Litt wasissued on Feb. 1, 1977.

Sspublic Law 94-586, 90 Stat. 2903, Oct. 22, 1976, 15U.S,C. 719 et seq.

5615 U.S. C, 719C(all).5715 U.SOC. 719c(b)(l).58 Federal Power Commission, Recommendation to the

President: Alaska Natural Gas Transportation System,May 2, 1977.

5915 U.S.C. 719e(a).8015 U.S.C. 719d(d). Council on Environmental Quali-

ty, Report, July 1, 1977. Another report was preparedby an Interagency Task Force under the lead of theDepartment of the Interior.

C115 U.S.C. 719e(ax4)(D).‘executive Office of the President, Energy Policy and

Planning. Decision and Report to Congress on theAlaska Natural Gas Transportation System, Sept. 22,1977.

’315 U.S.C. 719 f(a).“15 U.S.C. 719 f(d)(2).‘5 Public Law 95-158, Nov. 8, 1977. For background on

the Alaska National Gas Pipeline decision, see S. Rept.


95-567, 95th Cong., 1st sess. (1977). Many of the reportscalled for in Public Law 94-586 are reprinted in SenateComm. on Energy and Natural Resources, Decision andReport to Congress on the Alaska Natural GasTransportation System, 95th Cong., 1st sess. (Comm.Print 95-56, 1977).

’815 U,S.C. 719h(b)(l).6715 U.S. C. 719h(a).’815 U.S,C. 719h(b)(2),

6915 U,S.C. 719h(c)(l).7015 U.S.C. 719h(c)(3).7115 U.S.C. 719g(aXl).7215 U.S.C. 719g(a~2).7315 U.S.C. 719g(b)e7’15 U.s.c, 719g(c).’515 U.S.C. 719g(c), 15 U.S. C. 71%Ke).7’15 U.S,C. 719g(c), 15 U,S.C, 719g(d).7730 U.S.C. 185(p).

6Federal Land Planning and

Environmental Laws

—

Chapter 6.- FEDERAL LAND PLANNINGAND ENVIRONMENTAL LAWS

Page

National Environmental Po l icy Actof 1969• . ● . ● ● . ● ● , ● . . ● . ● ● ● . .. .139Broad Policy Goals of NEPA . . . . . . 139Mandatory Agency Action . . . . . . . 140The Council on Environmental

Quality. . . . . . . . . . . . . . . . . . . . . 141When an EIS Is Required. . . . . . . . . 141When an EIS Must Be Prepared . . . 142Public Participation. . . . . . . . . . . . . 144NEPA and Judicial Review. . . . . . . . 145

Footnote References for NationalEnvironmental Policy Act of 1969. . 150

Section 4(f) of the Department ofTransportation Act of 1966. . . . . . . 153Transportation Projects Covered by

Section. . . . . . . . . . . . . . . . . . 154Protected Lands. . . . . . . . . . . . . , . . 155Overton Park. . . . . . . . . . . . . . . . . . 156The 4(f) Statement. . . . . . . . . . . . , . 157

Footnote References for Section 4(f) . 159Endangered Species Act of 1973 . . . . 160

Endangered Species . . . . . . . . . . . . 160Prohibited Acts . . . . . . . . . . . . . . . . 160

Footnote References for EndangeredSpecies Act of 1973 . . . . . . . . . . . 163

Clean Air Act.... . . . . . . . . . . . . . . . . 165Implementation of the Clean Air Act

and the 1977 Amendments . . . . . 166Regulation Under the Clean Air Act 167National Air Quality Standards . . . 168State Implementation Plans . . . . . . 169

Preconstruction Review of Major NewStationary Sources . . . . . . . . . . . . . 170Prevention of Significant

Deterioration . . . . . . . . . . . . . . . . 173Duties of the Federal Land

Manager. . . . . . . . . . . . . . . . . . . . 176Footnote References for Clean Air

Act ● *s** . *********s********** 177Glean Water Act . . . . . . . . . . . . . . . . . 182

Federal Water Pollution ControlAct . . . . . . . . . . . . . . . . . . . . . . . . 182

Permit System ... , . . . . . . . . . . . . . 184

Page

Effluent Limitations. . . . . . . . . . . . . 188Municipal Point Sources . . . . . . . . . 191

Footnote References for Clean WaterAct ● 195

Coastal Zone Management Act...... 198The Coastal Zone . . . . . . . . . . . . . . . 198Statutory Requirements for the Plan 199Developing the Plan. . . . . . . . . . . . . 200Approving the Plan . . . . . . . . . . . ., 202Federal-State Relationships Under

CZMA . *.,**,,**,....,...*** 203National Interest Considerations . . 205Overview: Mineral Access and

Coastal Zone Management . . . . . 205Footnote References for Coastal Zone

Management Act ● ● ● ● ● ● ● ● ● s ● ● ● ● ● 206

TABLES

Page5. Time Required for Draft EIS

Preparation, Fiscal Year 1975 . . . . 1486. National Environmental Policy Act

Litigation ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● s ● ● ● ● 1487. Injunctive Delays of Federal

Actions Under the National Envi-ronmental Policy Act (NEPA). . . . . . 149

8. Projects Canceled as a Result ofNational Environmental Policy Act(NEPA) Injunctions. . . . . . . . . . . . . . 149

FIGURES

Page6. Time Required to Get Environ-

mental Permits if Proponent Ownsthe Site and No Federal Rights-of-Way Are Involved ● ● ● ● ● ● ● ● ● ● ● . ● 147

7. Time Required to Get Environ-mental Permits if Federal LandsAre Involved ● ● ● ● ● ● ● ● ● ● ● ● ● ● , ● , ● ● 147

6Federal Land Planning and

Environmental LawsNATIONAL ENVIRONMENTAL POLICY ACT OF 1969

The passage of the National EnvironmentalPolicy Act of 19691 (NEPA) marked the begin-ning of a new era of increased Federal con-cern for environmental quality. The Act setforth general Federal environmental policygoals, made environmental quality the con-cern of all Federal agencies, and by insti-tuting certain “action-forcing mechanisms, ”fundamentally altered the Federal decision-making process. The most important action-forcing mechanism is the requirement that anenvironmental impact statement (EIS) be pre-pared for “major Federal actions signifi-cantly affecting the quality of the human en-vironment.

Unlike environmental laws such as theClean Air Act, NEPA does not establish anyspecific Federal environmental standards.3 Itdoes require Federal departments and agen-cies in implementing their policies and pro-grams to use all practical means to improveand coordinate agency plans, functions, pro-grams, and resources in order to protect andpreserve the environment. While NEPA im-poses no direct specific restraints on accessto non-Federal minerals, it nevertheless has asubstantial indirect influence, since Federalland management agencies must comply withNEPA in the administration of all program re-


sponsibilities. The agencies have developedadministrative procedures for the considera-tion of applications for rights-of-way andother permits for the use of Federal landsthat involve a thorough environmental impactreview process. Land management agencyregulations provide that applicants for rights-of-way and other permits may be required topay the costs of preparing an EIS.4

There are three major components to theAct: the declaration of broad national policygoals; the enumeration of specific actions tobe implemented by Federal agencies; and theestablishment of the Council on Environmen-tal Quality (CEQ) in the Executive Office ofthe President, to coordinate agency imple-mentations and to formulate and recommendnational environmental policy.

BROAD POLICY GOALS OF NEPA

Section 101(a) of NEPA provides “that it isthe continuing policy of the Federal Govern-ment, in cooperation with State and local gov-ernments, and other concerned public andprivate organizations . . . to create and main-tain conditions under which man and naturecan exist in productive harmony, and fulfillthe social, economic, and other requirementsof present and future generations of Amer-

139


icans.” 5 This broad policy is to be carried outas “the continuing responsibility of theFederal Government” through means “con-sistent with other essential consideration ofnational policy.”6 This policy was furthermodified by the express statement that the“goals and policies” set forth in NEPA “aresupplementary to those set forth in existingauthorizations of Federal agencies.”7 Withinthese constraints, agencies are to use allpracticable means so that the Nation can:8

1. Fulfill the responsibilities of each gener-

2,

3.

4.

5.

6.

ation as trustee of the environment forsucceeding generations;

Assure for all Americans safe, healthful,productive, and esthetically and cultur-ally pleasing surroundings;

Attain the widest range of beneficialuses of the environment without degra-dation, risk to health or safety, or otherundesirable and unintended conse-quences;

Preserve important historic, cultural,and natural aspects of our national her-itage, and maintain, wherever possible,an environment which supports diver-sity and variety of individual choice;

Achieve a balance between populationand resource use which will permit highstandards of living and a wide sharing oflife’s amenities; and

Enhance the quality of renewable re-sources and approach the maximum at-tainable recycling of depletable re-sources.

MANDATORY AGENCY ACTION

To further the broad environmental policyestablished in NEPA, Congress directed that,“to the fullest extent possible the policies,regulations, and public laws of the UnitedStates shall be interpreted and administeredin accordance with the policies set forth inthis Act.”9 Congress also mandated that allFederal agencies utilize a review process that

assures consideration of environmental val-ues in their policy planning and decisionmak-ing. 10 The EIS was established as part of thebasic decisionmaking apparatus of the Fed-eral departments and agencies. While accom-plishment of the broad environmental policiesand goals proclaimed in NEPA is secondary toother agency program authorities and re-sponsibilities, the requirements of the EISprocess are direct and mandatory.

All Federal agencies in the conduct of theirfunctions, programs, planning, and policiesare required by NEPA to:

a.

b.

c.

d.

e.

Utilize a “systematic interdisciplinaryapproach” integrating natural and so-cial sciences and environmental designarts in planning and decisionmaking.11

Develop means of ensuring that pres-ently unquantified environmentalamenities and values will be given ap-propriate consideration in decision-making along with economic and tech-nical considerations. 12

Include a detailed EIS in “every recom-mendation or report on proposals forlegislation and other major Federal ac-tions significantly affecting the qualityof the human environment. ” When pre-paring an EIS, the responsible agencymust consult with other Federal agen-cies and solicit and include views ofthose agencies as well as State andlocal agencies, The statement must bemade available to the President, toCEQ, and to the public and it must ac-company the proposal through the ex-isting agency review process .13

Study and describe “appropriate alter-natives to recommended courses of ac-tion” for any proposal that involvesunresolved conflicts concerning alter-native uses of available resources.14

Lend support to programs designed tomaximize international cooperation inanticipating and preventing a declinein the quality of mankinds’ world en-

Ch. 6 Federal Land Planning and Environmental Laws ● 141

f.

g.

h.

vironment, where consistent with U.S.foreign policy .15

Make available to State and localgovernments and the public, informa-tion and advice useful in restoring,maintaining, and enhancing environ-mental quality .16

Initiate and utilize ecological informa-tion in planning and developing re-source-oriented projects .17

Assist CEQ.18

NEPA requires Federal agencies to con-sider environmental factors, along with tradi-tional technical and economic factors, in theplanning process. Case-by-case analysis ofproposed agency actions ensures that en-vironmental consequences are consideredbefore action is taken.

The action-forcing mechanisms imposeoperational duties that compel agencies toconsider and implement the general purposesof the Act. By requiring that agencies pre-pare a detailed environmental statement,conduct systematic and interdisciplinary re-view, and consult with other agencies andseek public comment on proposed actions,these action-forcing mechanisms havechanged the charnels and processes of ad-ministrative planning, decision, and review.They open the decisionmaking process to thefull spectrum of agencies and individuals thatmight be affected by the proposed actions.Public participation ensures that all issuesand competing considerations are aired andbalanced.

THE COUNCIL ONENVIRONMENTAL QUALITY

The Council on Environmental Quality wasestablished within the Executive Office of thePresident by Title II of NEPA.19 The CEQ iscomposed of three members appointed by thePresident with Senate approval. It serves as aresource, research, and advisory body to thePresident on environmental matters. The Of-

fice of Environmental Quality in the ExecutiveOffice of the President was established by theEnvironmental Quality Act of 197020 to pro-vide professional and administrative supportfor the CEQ.

Under an executive order,21 the Presidenthas assigned CEQ the responsibility to issueguidelines for the preparation of environmen-tal statements required by section 102(2)(c) ofNEPA.22

These CEQ guidelines are implemented bythe specific guidelines and regulations per-taining to compliance with NEPA that havebeen adopted by individual Federal agencies.The courts have held that “because CEQ doesnot have the statutory authority to prescriberegulations governing compliance withNEPA, CEQ guidelines are merely advi-sory.”23 The standard for judicial review ofwhether agency actions satisfy NEPA re-quirements is whether the actions complywith the agency’s own regulations and the re-quirements of section 102(2)(c).

WHEN AN EIS IS REQUIRED

The preparation of an EIS is only requiredfor a Federal action that the agency deter-mines is “a major Federal action significantlyaffecting the human environment.” 24 T h eidentification of major actions that signif-icantly affect the quality of the human envi-ronment is the responsibility of each Federalagency and is to be carried out against thebackground of its own particular operations.

NEPA requires a case-by-case determina-tion of whether a given agency action re-quires preparation of an EIS. The initial in-quiry must ascertain whether the proposedaction is a “major Federal action significant-ly affecting the human environment. ” If so,the impact assessment process is begun. Thisinvolves consideration of the environmentalconsequences of the proposed action. Thewords “major” and “significantly” are in-tended to imply a degree of importance andimpact that must be met before a statement isrequired .25

—


“Major Federal actions” include not onlyactions directly undertaken by Federal agen-cies, but also Federal decisions to approve,fund, or license activities that will be carriedout by others. CEQ guidelines provide thatFederal “actions” include but are not limitedto:

1. Recommendations or reports relating toor leading to legislation and appropria-tions;

2. Projects and continuing activities—Directly undertaken by Federal agen-

cies; or—Supported in whole or in part through

Federal contracts, grants, subsidies,loans, or other forms of funding assist-ance; or

—Involving a Federal lease, permit, li-cense, certificate, or other entitlementfor use; and

3. The making, modification, or establish-ment of regulations, rules, procedure,and policy .26

There must be sufficient Federal controland responsibility over the action that causesthe impact for it to constitute a Federal ac-tion. Such Federal control and responsibilityare not present in cases such as the distribu-tion of general revenue-sharing funds toStates and localities.27 In determining wheth-er or not an EIS is required, CEQ guidelinesdirect agencies to view the cumulative im-pacts of the proposed action and of furtheractions contemplated. The guidelines advisethat an EIS be prepared in all instanceswhere a “cumulatively significant” impact onthe environment may reasonably be expectedfrom the Federal action, or where the pro-posed action is expected to generate “highlycontroversial” environmental impacts.28

Finally, the action must be one that signif-icantly affects the quality of the human en-vironment either by directly affecting humanbeings or by indirectly affecting them throughadverse effects on the environment. Suchadverse significant effects include those thatdegrade the quality of the environment, cur-

tail the range of its beneficial uses, and serveshort-term environmental goals to the disad-vantage of long-term ones.29

There has been extensive litigation on thequestion of whether particular actions aremajor actions that significantly affect thehuman environment. It is difficult to specifywhich actions will invoke the application ofNEPA. The courts have generally interpretedthe term “major action,” liberally .30

As originally written, NEPA applied to allFederal agencies. However, Congress and thecourts have established a number of excep-tions to this mandate. Congress has exemptedthe Environmental Protection Agency (EPA)from the requirements of NEPA when it istaking action under the Clean Air Act,31 andwhen it is issuing pollution discharge permits(except those for new sources) under theFederal Water Pollution Control Act Amend-ments of 1972.32 The courts have ruled thatEPA was not required to prepare a NEPAstatement for an action under the Federal In-secticide, Fungicide, and Rodenticide Act33

where the procedures the agency followedwere the functional equivalent of the NEPAprocess.34 EPA has generally contended thatit is exempt from NEPA on the grounds thatthe Act is aimed at development agencies andnot at environmental protection agencies .35

WHEN AN EIS MUST BE PREPARED

The courts have frequently addressed thequestion of when, during the decisionmakingprocess, an EIS must be prepared. The deci-sions have generally held that the EIS must beprepared at the earliest practical point intime.36 One court stated that, ideally, an EISshould be prepared late enough in the devel-opment process to contain meaningful infor-mation, but early enough so that this infor-mation can practically serve as an input inthe decisionmaking process.37 Early prepara-tion is deemed essential to assure that thecomprehensive review and objective analysisintended by the Act will be responsibly car-ried out. If preparation of the EIS were al-


lowed to take place after planning was wellunderway, desirable alternatives might al-ready be foreclosed, a fully objective analysiswould not be possible, and opportunities tomake alterations that minimize environmen-tal costs would be lost.

The draft EIS is the vehicle by which the re-quirement for early public notice is met. TheCEQ guidelines state the necessity for theearliest possible preparation:

Agencies should keep in mind that suchstatements are to serve as the means ofassessing the environmental impact of pro-posed agency action, rather than as a justi-fication for decisions already made. Thismeans that draft statements on administra-tive actions should be prepared and cir-culated for comment prior to the first sig-nificant point of decision in the agencyreview process.38

But preparation of the draft is not the firststep in the environmental review process.Under the present system, an agency firstmakes an assessment of a proposed action todetermine whether or not an EIS is required.If an agency decides that an EIS is required,it often publishes a notice of its intent toprepare one in the Federal Register. If morethan one agency is directly involved in theproposed action, the agencies may select a“lead agency” to assume supervisory respon-sibility in the preparation of the EIS. If anagency decides that a proposed action is not amajor action that will have sufficient signifi-cant impact on the quality of the human en-vironment to require the processing of an EIS,it would issue a “negative declaration.”39

Negative declarations are generally not is-sued as formal documents or published in theFederal Register.

The agency then prepares a draft EIS onthe proposed action. The draft statementmust fulfill and satisfy, to the fullest extentpossible, the requirements of a final EIS asset out in section 102(2)(c), as well as theagency’s own regulations on the preparationof an EIS. CEQ guidelines provide that a draftEIS should contain a “detailed” descriptionof:40

1.

2.

3.

4.

5.

6.

7.

8.

The proposed action, its purposes, and adescription of the affected environment;

The probable environmental impacts ofthe proposed action including positiveand negative, primary and secondary,and direct and indirect consequences ofthe action;

Any probable unavoidable adverse en-vironmental effects from the implemen-tation of the proposal;

Possible alternatives to the proposed ac-tion, including the abandonment or post-ponement of the proposal, as well as anypossible alternatives that may be withinthe jurisdiction of another agency; andan evaluation of the benefits and en-vironmental impacts of each alternative;

The relationship between local short-term uses of the environment and en-hancement of long-term productivity in-cluding an analysis of any tradeoffs andlosses associated with the proposed ac-tion, and also the extent to which furtheralternative uses may be foreclosed.(Both short- and long-term uses must beconsidered in assessing the environmen-tally significant consequences of a pro-posed action.);

Any irreversible and irretrievable com-mitments of resources that would be in-volved in implementation, and the extentto which the proposal curtails the rangeof potential uses of the environment;

The relationship of the proposed actionto Federal, State, or local land use plans,policies, and controls for the affectedarea (such as those prepared under theClean Air Act, Clean Water Act, or Fed-eral land management laws), and astatement of how the agency has recon-ciled any conflict with such plans, or thereasons for proceeding with the pro-posed action despite the conflict; and

Other Federal policy interests and con-siderations that offset or mitigate theadverse environmental consequences ofthe proposed action.


Each EIS should be prepared in ac-cordance with the statutory directive thatagencies “utilize a systematic, interdisci-plinary approach which will insure the inte-grated use of natural and social sciences andenvironmental design arts in planning anydecision which may have an impact on man’senvironment."41

PUBLIC PARTICIPATION

The EIS is a public disclosure document.As such, it is intended to provide a full andcandid presentation of the environmental fac-tors along with other pertinent informationon proposed Federal actions. The EIS is a toolto aid in the decision process. It acts to en-sure that the environmental consequencesand all possible alternative approaches to aparticular project, including its abandon-ment, are considered before action is taken.An EIS must be presented clearly enough tobe understood by an informed layman, yet itmust contain sufficiently detailed data to pro-vide technical information for interpretationby specialists.

By compelling a formal, detailed statementof the anticipated environmental impacts anda description of alternatives, NEPA providesevidence that the mandated decisionmakingprocess has, in fact, taken place; and, mostimportantly, allows those removed from theinitial process to evaluate and balance thefactors on their own.42

Federal agencies must take full respon-sibility for the preparation of an EIS. Theycannot simply accept documentation from anapplicant for a permit, license, grant, orother Federal aid. Statements and environ-mental information submitted by applicantsmust be independently evaluated. The re-sponsibility for the impact evaluation, scope,and content of the draft and final statementsrests with the agency. Public Law 94-8343

amended NEPA to provide that if certain con-ditions are satisfied, an agency may delegateEIS preparation to a State agency or to an of-ficial for a major Federal action funded

under a program of grants to States (primari-ly Federal-aid highways). There must be aspecified level of Federal participation andguidance in the impact assessment process,an independent evaluation of the EIS prior toapproval and adoption by the agency, notifi-cation of any other States or Federal landmanagement entities that could be affectedby the proposed action or alternative, and awritten statement of any disagreementsabout the impacts described in the EIS. Thechief effects of the amendment are to validatethe policy of the Federal Highway Ad-ministration that requires States to prepareEISs for Federal-aid highway projects, and tooverturn Federal court decisions that State-prepared EISs were legally insufficient underNEPA.

Once a draft statement is prepared, it iscirculated for review and comment from thepublic and from those Federal, State, andlocal agencies that have expertise or jurisdic-tion relevant to the action under considera-tion.44 A period of 90 days is usually allowedfor comment. Notice of the availability of thedraft EIS is published in the Federal Registerand may also appear in local newspapers. Apublic hearing may be held on a draft EIS, butthis usually occurs only when a hearing onthe proposed action is required under otherstatutes or existing agency procedures.

By requiring an agency to seek out theviews of appropriate Federal, State, and localofficials and of the public, NEPA opens thedecisionmaking process to those who may beaffected by the action. This ensures thatissues, competing considerations, and envi-ronmental consequences, which might other-wise be overlooked or ignored by agency of-ficials, will be aired and given due considera-tion. Public comment on a draft EIS not onlymust be sought out but also must be weighedby the agency in preparing the final versionof the EIS. The final EIS must be responsive tothe issues and questions raised by Govern-ment agencies and the public.

One case interpreting this requirementheld that:


. . . officials must give more than cursoryconsideration to the suggestions and com-ments of the public in the preparation of thefinal impact statement. The proper responseto comments which are both relevant andreasonable is to either conduct the researchnecessary to provide satisfactory answers,or to refer to those places in the impact state-ment which provide them. If the final impactstatement fails substantially to do so, it willnot meet the statutory requirements.45

After a complete consideration of all com-ments and any additional information re-ceived, the agency then prepares a final EIS.This accompanies the proposal for actionthrough the decisionmaking process, whichvaries enormously from agency to agency.The final EIS contains, in addition to the re-quired sections described in the discussion ofthe draft EIS, a description of coordinationwith other agencies, responses to issues andquestions raised in the draft review process,and identification of any unresolved issues .46

NEPA AND JUDICIAL REVIEW

Agency compliance with the requirementsestablished by NEPA is subject to judicialscrutiny. Although the Act does not contain aprovision specifically authorizing judicialreview or enumerating judicial remedies, thecourts have uniformly held that injunctiverelief will be granted to plaintiffs who dem-onstrate that the requirements of the Acthave not been met. A leading case states:47

Injunction is the vehicle through which thecongressional policy behind this chapter canbe effectuated, and a violation of this sectionin itself may constitute a sufficient demon-stration of irreparable harm to entitle aplaintiff to blanket injunctive relief.

In addition, defects in the environmental im-pact process may be used as the basis for achallenge to agency action—implementationof the proposal discussed in the EIS—underthe Administrative Procedure Act.48 That Actprovides authority to set aside any agency ac-tion that is arbitrary, capricious, an abuse of

discretion, or otherwise not in accordancewith the law.

The Scope of Review

The mere preparation of a document dis-cussing environmental impacts is not suffi-cient to render agency action immune tojudicial review. The courts will look both atthe contents of the document and at the use towhich it is put. In Calvert Cliffs’ CoordinatingCommittee, Inc. v. AEC, the court of appealsrejected the notion that the preparation of adocument which accompanied agency filesthrough the decisionmaking process, butwhich was in no way used in that process,would be sufficient .49

In the Gillham Dam case,50 it was held that“at the very least, NEPA is an environmentalfull-disclosure law. ” On appeal, the EighthCircuit found it “clear that the Act is morethan an environmental full-disclosure law,”and that it was “intended to effect substan-tive changes in decisionmaking.”51

There has been considerable litigation con-cerning the compliance with the proceduralrequirements that section 102 places on agen-cies. Almost without exception, the courtshave held that agencies are required to makethe fullest effort possible to comply with sec-tion 102 in every detail. The definition of “ma-jor Federal action” is expansive.52 Agencieshave been required to begin preparation ofthe statement early in the decisionmakingprocess. 53 Responsibility for preparation andreview is placed squarely on the Federalagency, not on other interested parties.54 Ex-tensive discussion of the environmentalcosts,55 the environmental impacts,56 and thepossible alternatives has been required.57

The development of case law relating to thesubstantive review of statements, or agencyactions based on statements, has been lesscomplete. The term substantive review hastwo differing, but closely related, meanings inNEPA cases. It can refer to the action of acourt in assessing, on its own, the validity ofan EIS and the conclusions contained therein.It can also refer to judicial review based on


the premise that NEPA, particularly section101, imposes substantive requirements on anagency that go beyond the procedural re-quirements of section 102. In practice the twohave gone together.

In Calvert Cliffs’, the court indicated a will-ingness to reverse an agency decision involv-ing a procedurally correct EIS if it could beshown that “the actual balance of costs andbenefits struck was arbitrary or clearly gaveinsufficient weight to environmental fac-tors.”58 In another early NEPA case, the im-pact statement was held inadequate becauseit consisted “almost entirely of unsupportedconclusions.” 59 However, diametrically op-posite views have also been indicated bysome courts:60

Judicial review of the final environmentalstatement was limited to whether all five pro-cedural requirements of this section [section102] were met, whether it constituted ob-vious good faith compliance with the de-mands of this section, and whether it con-tained a reasonable discussion of the subjectmatter involved in the five required areas.

While there has been no final disposition ofthis conflict by the Supreme Court, five cir-cuit courts of appeals61 have adopted a mid-way position. They found that section 101 ofNEPA does impose substantive requirementson an agency and allows judicial review ofwhether those substantive requirements havebeen met. However, that review is limited tothe traditional standards of determiningwhether the administrative action was “arbi-trary, capricious, or an abuse of discretion. ”This position has been expressed as follows:

In determining whether the substantive re-quirement of this section has been met, thereviewing court must first determinewhether the agency acted within the scope ofits authority, and next whether the decisionreached was arbitrary, capricious, or other-wise not in accordance with law; in makingthe latter determination, the court must de-cide if the agency failed to consider all rele-vant factors in reaching its decision or if thedecision itself represented a clear error ofjudgment.62

Another court described the judicial func-tion in these words:

The court’s role under this section is notonly to see that agencies have complied withall procedural requirements but also toengage in substantial inquiry to determinewhether there has been a clear error of judg-ment; courts may delve into a decisionmakingprocess to determine if the decision was ar-bitrary and capricious when viewed in termsof the data and information supplied and setforth in the environmental impact state-ment.63

These decisions indicate that NEPA is to bemore than an exercise in collecting informa-tion. Final agency decisions cannot be madein disregard of the information that is con-tained or should be contained in the impactstatement.

Judicial Review and Delay

The EIS process and judicial review ofagency compliance with NEPA have beencited as causing substantial delays in theFederal approval of mining-related applica-tions, such as securing a right-of-way overFederal lands. It is claimed that the timespent in complying with NEPA adds to thecost of mining operations.

One industry spokesman64 has estimatedthat the time involved in obtaining all en-vironmental permits, where no Federal right-of-way is sought, is 60 to 90 days, at a min-imum (figure 6). If a right-of-way acrossFederal lands is involved, he estimated that36 to 44 months are required (figure 7).65

These figures do not include any estimate ofthe time involved if the matter is subject tojudicial review.

In 1976, CEQ published an analysis ofFederal agency experience under NEPA.66

CEQ surveyed 70 Federal agencies to deter-mine the amount of time they took to preparean EIS and the extent of NEPA litigation. (ForFederal land management agencies, the re-sults are shown in tables 5 and 6.)

The CEQ report observed:67

There are three points in the EIS processwhen delays can occur—in preparing the


Figure 6.—Time Required to Get Environmental Permits if Proponent Owns the Site andNo Federal Rights-of-Way Are Involved

I Proponent makes application I 4s ?

Environmental StateProtection 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 assessmentGet lead agency namedGet lead agency to pick EIS teami

10 months

Complete draft EISE

2 to 6, months

36to44

months

1 3to6“months

I Publish final EIS and file with CEQ t

Ei 1 month

CEQ approves or disapproves final EISI

no time limit

Cabinet official makes “go” or “no go” fIdecision 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 commentsare in, and after issuance of the final. Thetime required to prepare a draft EIS differsfrom agency to agency and from project toproject. The scope of a project, the ex-perience of the people preparing the state-ment, the relationship of the EIS process tothe decisionmaking process, and the priorityaccorded by the agency management to thestatement and the project itself are allcritical.

CEQ concluded in its annual report that,“There were substantial problems of delay inthe early years of NEPA, but that they arediminishing as agencies improve their en-vironmental expertise and begin impactstatement preparation earlier in their plan-ning and decisionmaking process."68 It wasrecognized that there is a trend towardshorter times for preparation of draft andfinal EISs.

CEQ’s most recent survey of agency ex-perience with NEPA litigation puts some

Table 5.—Time Required for Draft EIS Preparation,Fiscal Year 1975

(in months)

Minimum Maximum AverageAgriculture

Forest Service. . . . . . . 1 24 13

Interior . . . . . . . . . . . . . . . 1 18 10Bureau of Land

Management . . . . . . 2 38 20Fish and Wildlife

Service . . . . . . . . . . . 3 12 8National Park

Service . . . . . . . . . . . 12 24 14

Average Time Between Filing of Draft and Final EISs,Calendar Year 1974

(in months)

AgricultureForest Service . . . . . . . . . . . . . . . . . . . . . . 9.1

InteriorBureau of Land Management . . . . . . . . 5.7Fish and Wildlife Service . . . . . . . . . . . 19.8National Park Service . . . . . . . . . . . . . . 13.0

SOURCE: CEQ, Environmental Impact Statements: An Analysis of Six Years Ex-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 permanentAgency Cases EISa needed dismissed needed inadequate EIS prepared EIS injunction

Cases {as of June 30, 1976) completedAgriculture

Forest Service ., . . . . . . . . . . . . . . . . 31 24 11 9 2

InteriorBureau of Land Management. . . . . . . . 11 5 1 3 1Fish and Wildlife Service . . . . . . . . . . . 4 3 0 0 0National Park Service . . . . . . . . . . . . . 7 6 0 0 0

All Federal agencies (total). . . . . . . . 527C 350 155 96 55

Cases (as of June 30, 1976) pending

AgricultureForest Service . . . . . . . . . . . . . . . . . . . . 23 13 0 0 0

Interior

Bureau of Land Management. . . . . . . 19 13 0 4 0Fish and Wildlife Service . . . . . . . . . . 2 2 0 0 0National Park Service . . . . . . . . . . . . . . 8 5 0 0 0

All Federal agencies (total). . . . . . . . 399d 229 13 14 13

5 1 0

0 0 00 0 0 b

2 1 060 45 0

3 3 0

0 2 00 0 02 0 0

45 40 0

aEnvwonmental lm~act statementsbln)unctlons Which permanently halted the Prolect

cRepresents 444 actual cases The difference of 83 represents cases brought against more than one agencydThls figure represents 339 actual cases The difference of 60 represents cases brought against more than one agencySOURCE CEO, Emwonmerrra/ Qua//fy 7977 Efghth Arrrwa/ Report, pp 125.128


perspective on problems stemming from delayassociated with NEPA.69 Since the enactmentof NEPA,70 CEQ found that 7,334 EISs hadbeen filed and that there had been a total of783 suits filed against Federal agencies alleg-ing a violation of NEPA. In 479 cases, plain-tiffs sought preparation of an EIS; in 288cases, the adequacy of an EIS was chal-lenged.

In the 6½ years covered, injunctions hadbeen granted in 177 cases. In 547 cases thatreached the courts, no injunctions were or-dered. Of the 177 injunctions, 75 have lastedlonger than 1 year (see table 7). CEQ charac-terizes delays caused by NEPA-related in-junctions as follows:71

This figure is less than 3 percent of the7,334 actions for which impact statementswere prepared and a much smaller propor-tion of the unknown-but very large—num-ber of assessments made. . . . In no caseswere actions stopped permanently solelybecause of a NEPA injunction. Although in aparticular case, an injunction might causeconsiderable delay, the delays caused byNEPA injunctions are small when viewedagainst the whole spectrum of Federal ac-tivity.

Table 7.—Injunctive Delays of Federal ActionsUnder the National Environmental Policy Act (NEPA)

ProjectsInjunctive action involved

Delayed by NEPA-related injunctionsUp to 3 months . . . . . . . . . . . . . . . . 323 to 6 months . . . . . . . . . . . . . . . . . 186 to 12 months . . . . . . . . . . . . . . . . 22Over 12 months. . . . . . . . . . . . . . . . 75Length of delay not indicated. . . . 30

TOTAL . . . . . . . . . . . . . . . . . . . . . 177

Permanently halted by NEPA-relatedinjunctions . . . . . . . . . . . . . . . . . . . . . 0

Delayed by non-N EPA-relatedinjunctions . . . . . . . . . . . . . . . . . . . . . 20

No injunctions . . . . . . . . . . . . . . . . . . . . 547Injunction status not indicated. . . . . . . 39

TOTAL . . . . . . . . . . . . . . . . . . . . . 783

CEQ identified 42 projects that were stoppedafter a NEPA challenge was brought (seetable 8).72

Table 8.—Projects Canceled as a Result of NationalEnvironmental Policy Act (NEPA) Injunctions

ProjectsReason canceled

Local/State decision to halt a projectinvolving Federal funds. . . . . . . . . . .

Federal decision to halt a project. . . . .Part of a settlement agreement . . . . . .Applicant withdrew . . . . . . . . . . . . . . . .Injunction granted under another law .Congressional action. . . . . . . . . . . . . . .Local/State decision to proceed

without Federal funds’ . . . . . . . . . . .Judicial interpretation of another law .Deference to congressional desires . .Presidential decision to halt a project.Local land use conflicts . . . . . . . . . . . .Not indicated . . . . . . . . . . . . . . . . . . . . .

1296422

211111

TOTAL . . . . . . . . . . . . . . . . . . . . . 42

‘These two prolects were continued on the local or State level, only the Federalfunding was canceled

SOURCE CEO, Environmental Qua//ty–7977, E/ghrh Annual Report, P 29

The CEQ survey does show that NEPA lit-igation delays are not as widespread as maysometimes be alleged. However, the smallnumber of injunctions could be misleading. Insome cases, settlements or agreements by adefendant agency may have the same delay-ing effect as an injunction (even though it is adelay that is justified under terms of thestatute). Also, the small number of injunc-tions may not accurately reflect the numberof individuals affected. NEPA actions involv-ing broad agency programs such as theFederal coal leasing program, the Outer Con-tinental Shelf leasing program, nuclear fuelreprocessing, and western grazing practiceshave affected hundreds, perhaps thousands,of applicants and potential applicants forFederal licenses and permits.73

What the CEQ data indicate clearly is thatmost NEPA challenges are and can be re-solved in a reasonable period of time.


FOOTNOTE REFERENCES FOR NATIONALENVIRONMENTAL POLICY ACT OF 1969

IPublic Law 91-190, 83 Stat. 852, Jan. 1, 1970, asamended by Public Law 94-83, 89 Stat. 424, Aug. 9,1975,42 U.S.C. 4321-4347.

242 U,S.C. 4332(2)(C). See Calvert Cliffs’ CoordinatingCommittee, Inc. v, U.S. Atomic Energy Commission, 449F,2d 1109 (D.C. Cir. 1971), cert. denied, 404 U.S. 942,for a discussion of the legislative history and intendedeffect of the requirement for an environmental impactstatement. See also, Richard N. L. Andrews, “ImpactStatements and Impact Assessment,” in EnvironmentalImpact Assessment (Marian Blisset, cd,), EngineeringFoundation, 1975, at pp. 16-18.

3However, five circuit courts of appeals have ex-plicitly adopted the position that NEPA imposes somesubstantive requirements on Federal agencies: EDF v.Corps of Engineers, 492 F.2d 1123 (5th Cir. 1974); Con-servation Council v. Froehlke, 473 F.2d 664 (4th Cir.1973); Sierra Club v. Froehlke, 486 F.2d 946 (7th Cir.1973); EDF v. Corps of Engineers, 470 F.2d 289 (8th Cir.1972); and Calvert C.lif~s’ Coordinating Committee, Inc.v. AEC, 449 F,2d I109 (D.C. Cir. 1971).

In Calvert Cliffs, the court stated its role in reviewingboth procedural and substantive aspects of an agencydecision:

The reviewing courts probably camot reverse asubstantive provision on its merits, under section 101,unless it be shown that the actual balance of costs andbenefits that was struck was arbitrary or clearly gave in-sufficient weight to environmental values. But if the deci-sion was reached procedurally without individualized con-sideration and balancing of environmental factors—con-ducted fully and in good faith—it is the responsibility ofthe courts to reverse.4See section 304(b) of the Federal Land Policy and

Management Act of 1976, Public Law 94-579, 90 Stat.2765, 43 U.S.C. 1734(b), which applies to the publiclands and the national forests, See also, the regulationsfor the National Park Service and the Bureau of LandManagement at 43 CFR 2802.1-2(a) (l); and for the Fishand Wildlife Service at 50 CFR 29. 21-22(a).

542 U.S.C. 4331(a).“Id.7Section 105,42 U.S.C, 4335.‘Section IOl(b), 42 U,S.C. 4331(b).9Section 102(1), 42 U.S,C. 4332(l),‘“Section 102(2)(A), 42 U.S.C. 4332(2)(A).“Id.‘zSection 102(2)(B), 42 U.S.C. 4332(2)(B).,3 Section 102(2)(c), 42 U.S.C. 4332(Z)(C)”“Section 102(2)(E), 42 U.S.C. 4332(E). This section

was originally section I02(2)(D) and is so referred to inmany court cases on NEPA; however, Public Law 94-83added a new subparagraph (2)(D) and redesignatedsubparagraphs (D) to (H) as (E) to (1) respectively.

‘sSection 102(2)(F), 42 U.S.C. 4332(2)(F).“Section 102(2)(G), 42 U,S.C, 4332(2)(G).

‘7Section 102(2)(H), 42 U.S.C. 4332(2)(H).IBsection 102(2)(I), 42 U.S.C. 4332(Z)(1).Wublic Law 91-190, Title H, section 202, 83 Stat,

854, 43 U.S,C. 4342.Z“public Law 91-224, 84 Stat, 114, Apr. 3, 1970, 42

U.S.C. 4372-4374.21E.0. 11514,35 F,R. 4247, Mar. 5, 1970.ZZCEQ guidelines are at 40 CFR 1500.23Greene Countyv.FPC,455F.2412 (2d Cir, 1972).2442 U.S,C, 4332(2)(C).‘s40 CFR 1500.6(c).2’40 CFR 1500.5,ZT40 CFR 1500.6(c).2’40 CFR 1500.6( a].’940 CFR lsoo. qb).30Courts have found some of the following to be “ma-

jor actions:” a Federal loan guarantee for a 16-storybuilding, Goose Hollow Foothills League v. Romney, 334F. Supp. 877 (D.Ore. 1971); approval of a branch banklocation, Billings v. Camp, 4 E.R,C. 1744 (D.D.C. 1972);

3115 U.s.c. 793(c)(l).’233 U.s.c. 1371(c)(1).337 U.S,C. 135 et seq.34EDF v. EPA, 489 F,2d 1247 (D.C. Cir, 1973).3sThe original CEQ guidelines for EIS preparation

also adopted this interpretation: “Because of (NEPA’s)legislative history, environmentally protective regula-tory actions concurred in or taken by the EPA are notdeemed actions which require preparation of an EISunder section 102(2](c) of the Act. ” Section 5(d), 36 F.R.7724, Apr. 23, 1971.

“see Ca]vert ~iffs coordinating COmmittee, Inc. v.AEC, 449 F.2d 1109 (D.C. Cir. 1971); National ResourcesDefense Council v. Morton, 458 F.2d 827 (D.C. Cir.1972); Scientists’ Institute for PubJic In~ormation v,AEC, 4811 F.2d 1079 (D.C. Cir, 1973).

‘Scientists Institute for Public hformation v. AEG481 F.2d 1079 (D,C, Cir. 1973),

3840 CFR lsoo, qd)(z),3Whe CEQ guidelines say little about negative decla-

rations, concentrating rather on the requirements forfinding the existence of a major action. Agencies arerequired to notify CEQ when they have made a negativedeclaration for a proposed action (i) which is of the sortthat the agency has previously identified as generallyrequiring an EIS, (ii] which is similar to actions forwhich it has prepared a significant number of state-ments, or (iii) which the agency has previously an-nounced would be the subject of an EIS, or concerningwhich the agency had received a request from CEQ toprepare a statement. The agency is also required toprepare a publicly available record briefly setting forththe determination and explaining it. CEQ will period-ically publish in the FederaJ Register a list of such dec-larations. 40 CFR 1500.6(e),

Ch. 6 Federal Land Planning and Environmental Laws “ 151

~he requirement that a draft EIS “fulfill and satisfyto the fullest extent possible at the time the draft isprepared the requirements established for final state-ments by section I02(2)(c)” is found at 40 CFR15 C)().7(a). Specific requirements for the contents of anyEIS are found at 40 CFR 1500.8.

4) Section 102(2)(A), 42 U.S.C. 4332(2)(A).42Calvert Cliffs’ Coordinating Committee, Inc. v. AEC,

449 F.2d 1109 at (D.C. Cir. 1971).43 Public Law 94-83,89 Stat. 424, Aug. 9, 1975.44CEQ provides a list of “Areas of environmental im-

pact and Federal agencies and Federal-State agencieswith jurisdiction by law or special expertise to com-ment thereon” in appendix I to 40 CFR part 1500. Pro-cedures for soliciting comments from State and localagencies are governed by OMB Circular No. A-95, seeappendix IV to 40 CFR part 1500.

45Lathan v. Volpe, 350 F. Supp. 262, at 265 (W.D.Wash. 1972).

4840 CFR 1500. IO(a).47EDF v. Froehlke, 477 F.2d. 1033 (8th Cir. 1973).

However, while courts have held that injunctive reliefis appropriate under NEPA, they have applied the tra-ditional tests that apply in all civil cases to applicationsfor injunctions. Plaintiffs seeking injunctive relief mustshow (1] that they are likely to prevail on the merits; (2)that they will suffer irreparable damage if the injunc-tion is not issued; and (3) that the public interest sup-ports granting the injunction. See Conservation Councilof North Carolina v. Costanzo, 528 F.2d. 250 (4th Cir.1974); EDF v. Armstrong, 352 F. Supp. 50 (D. Col. 1972),supplemented, 356 F. Supp. 131, aff’d, 487 F.2d. 814,cert. denied, 416 U.S. 974, rehearing denied, 419 U.S.1041.

“Codified at 5 U.S.C. 551-59, 701-06, 13o5, 31o5,3344,6362, 7562.

4QCalvert Cliffs’ Coordinating Committee, Inc. v. AEC,449 F.2d 1109 (D.C. Cir. 1971).

50Environmental Defense Fund v. Corps of Engineers,325 F. Supp. 749 (E.D. Ark. 1971).

51 Environmental Defense Fund v. Corps of Engineers,470 F.2d 289, (8th Cir. 1972).

52’’This section was designed to cover almost everyform of Federal activity.” Chelsea NeighborhoodAssociations v. U.S. Postal Service, 516 F.2d 378 (2dCir. 1975). See also, Union Meclding v. U. S., 390 F.Supp. 391 (D. Pa. 1971) and Hardy v. MitcheJl, 460 F.2d640 (2d Cir. 1972).

53’’ Federal officials are entitled to “dream out loud”without filing an impact statement; however, a state-ment is required when a proposal moves beyond the“dream” stage into some form of tangible response. ”Sierra Club v. Morton, 514 F.2d 856 (D.C. Cir. 1975),rev’d on other grounds, 427 U.S. 390. “Environmentalimpact statement should be prepared at the earliesttime prior to implementation of proposed major Federalaction, so that alternative courses of action with lesssevere environmental consequences can be con-sidered. ” Friends of the Earth v. Coleman, 518 F.2d. 323(9th Cir. 1975).

“’’This section does not permit the responsibleFederal agency to abdicate its statutory duties byreflexively rubberstamping an environmental impactstatement prepared by others; the agency must in-dependently perform its reviewing, analytical andjudicial functions and participate actively and signif-icantly in the preparation and drafting process. ”Sierra Club v. Lynn, 502 F.2d. 43 (6th Cir. 1974). Seealso, City of Davis v, Coleman, 521 F.2d. 661 (9th Cir.1975).

55’’ Detailed environmental impact statement mustcover environmental costs which may be avoided. ”Montgomery v. Ellis, 364 F. Supp. 517 (D. Ala. 1973).

5’” T0 carry out the statutory mandate of this section,every relevant environmental effect of a project mustbe given consideration in the environmental impactstatement.” Sierra Club v. Morton, 510 F.2d. 813 (5thCir. 1975). “Environmental impact statement shoulddiscuss all significant primary environmental effectsand all substantial secondary environmental effects. ”Lije of the Land v. Volpe, 363 F, Supp. 1171 [D, Hawaii1972), aff’d, 485 F.2d 460.

57” It is absolutely essential to the process under thissection that the decisionmaker be provided with a de-tailed and careful analysis of the relative environ-mental merits and demerits of the proposed action andpossible alternatives. ” National Resources DefenseCouncil v. Callaway, 524 F.2d 79 (2d Cir. 1975).

58ca]vert C]iffs supra, note 2”SgEnvironmenta] Defense Fund v. TVA, 339 FQSupP”

806 (E.D. Tern. 1972).‘National Helium Corp. v. Morton, 486 F.2d 995 (lOth

Cir. 1973).6’See, supra, note 2.G’Environmenta] Defense Fund v. Corps of Engineers

470 F.2d 289 (8th Cir. 1972).63Cape Henry Bird Club v. Laird, 359 F. Supp. 404 (D.

Va. 1973), aff’d, 484 F.2d 453.64william R. Tipton, “EnvironmentaI Considerations

in Project Management, ” Journal of Metals, May 1977.65Tipton’s estimates do not include any provision for

environmental impact reviews where the applicantowns the site and no Federal rights-of-way are in-volved, Tipton posits that there is no Federal role in thistransaction at all, hence no NEPA application, It shouldbe noted, however, that 15 States have enacted com-prehensive statutes similar in many respects to NEPA,4 States have administrative or executive orders re-quiring environmental reviews, and 7 States have spe-cial or limited EIS requirements. See EnvironmentalQuaJity–1977, The Eighth Annual I?eport of the Councilon Environmental Quality, 1977, pp. 130-35, (hereafter“Environment—1977”). Therefore, in some States, thepermit review process might come to resemble moreclosely the Federal process even if no Federal rights-of-way are involved.

8’Environmental Impact Statements: An Analysis of 6Years Experience by 70 Federal Agencies, Council onEnvironmental Quality, March 1976.

‘71d. at 28.


aJJEnvjrOnmentaJ Quality—l 976, The Seventh AnnualReport of the Council on Environmental Quality, 1976, p.123.

6gEnvironment—~ 977, pp. 122-129.70 Figures in this survey were for the period ending

June 30,1976.71 Environment—1977, pp. 123, 129,

721d. at 129.73The purpose of this paragraph is not to argue the

merits of the cases mentioned or to imply that thedelays indicated were environmental, but merely topoint out that 177 injunctions do not translate into only177 individual projects. Challenges to generic pro-grams can have widespread effects.

Ch. 6 Federal Land Planning and Environmental Laws .153

SECTION 4(f) OF THE DEPARTMENT OF TRANSPORTATIONACT OF 1966

The Department of Transportation (DOT)Act of 19661 consolidated various Federaltransportation agencies and programs into asingle new department. One of the stated pur-poses of the reorganization was the adoptionof the national land preservation policy that a“special effort should be made to preservethe natural beauty of the countryside andpublic park and recreation lands, wildlifeand waterfowl refuges, and historic sites.”2

To implement this policy, section 4(f) of theDOT Act, as amended,3 imposes specific limi-tations on the authority of the Secretary ofTransportation to approve Federal expend-itures for projects that would use such lands.Section 4(f) provides:

It is hereby declared to be the nationalpolicy that special effort should be made topreserve the natural beauty of the coun-tryside and public park and recreationlands, wildlife and waterfowl refuges, andhistoric sites. The Secretary of Transporta-tion shall cooperate and consult with theSecretaries of the Interior, Housing and Ur-ban Development, and Agriculture, and withthe States in developing transportation plansand programs that include measures to main-tain or enhance the natural beauty of thelands traversed. After August 23, 1968, theSecretary shall not approve any program orproject which requires the use of any public-ly owned land from a public park, recreationarea, or wildlife and waterfowl refuge of Na-tional, State, or local significance as deter-mined by the Federal, State, or local officialshaving jurisdiction thereof, or any land froman historic site of National, State, or localsignificance as so determined by such of-ficials unless (1] there is no feasible and pru-dent alternative to the use of such land, and(2) such program includes all possible plan-ning to minimize harm to such park, recrea-tional area, wildlife and waterfowl refuge, orhistoric site resulting from such use.4

Section 4(f) has three components: it af-firms the national policy to preserve public

Note: Footnotes for this section appear on p. 159.

park, refuge, and recreation lands and his-toric sites; it directs the Secretary to developtransportation plans in cooperation with theStates and the Departments of Housing andUrban Development, the Interior, and Agri-culture to enhance and maintain the landstraversed by transportation projects; and,most importantly, it imposes direct and ex-plicit restrictions on the authority of theSecretary to approve federally funded pro-grams or projects that would use any of theselands of National, State, or local significanceunless there is no prudent and feasible alter-native and all possible planning has been in-cluded to minimize harm.

Section 4(f) has far-reaching implicationsfor the availability of Federal funds fortransportation projects that might be neededto develop mineral resources, not only be-cause it may restrict the approval of projectson certain Federal lands for transportationpurposes, but also because it limits the use ofState, local, and some private lands. Section4(f) and a virtually identical provision, section138 of Title 23, U. S. C., the Federal-AidHighway Act, as amended,5 were passed inresponse to the recognized tendency on thepart of some Federal, State, and local of-ficials to appropriate public park, recreation,and refuge lands and historic sites forhighway construction and other transporta-tion projects in order to avoid the disruptionand difficulties associated with use of built-up areas. A 1976 amendment to section 138added the following provision expanding theSecretary’s transportation planning respon-sibilities for Federal-aid highways:

. . . In carrying out the national policy de-clared in this section the Secretary in coop-eration with the Secretary of the Interior andappropriate State and local officials, is au-thorized to conduct studies as to the mostfeasible Federal-aid routes for the movementof motor vehicular traffic through or aroundnational parks so as to best serve the needs

of the traveling public while preserving thenatural beauty of these areas.6

TRANSPORTATION PROJECTSCOVERED BY SECTION 4(f)

The provisions of section 4(f) are appli-cable to federally funded transportation pro-grams and projects under the jurisdiction ofthe Secretary of Transportation. Section 138applies only to Federal-aid highway projects.7

The Federal-aid highway program, which isadministered by the Federal Highway Admin-istration (FHWA) of DOT, provides Federalfunds for a percentage of the costs of theplanning, design, and construction of high-ways in the interstate, primary, secondary,and urban systems.8 Ninety percent of thecosts of interstate highways and seventy per-cent of the costs of other roads are reim-

bursed to States from Federal funds, primar-ily the Highway Trust Fund.

Other federally aided transportation pro-grams may be subject to 4(f) review as well, ifuse of protected lands is involved. These in-clude, for example, programs for construc-tion, expansion, and maintenance of rail-roads, airports, and aviation and navigationaids. Extension of the Alaska Railroad, whichis operated by the Federal Railroad Admin-istration, may be subject to 4(f) restrictions ifa proposed route made use of protectedlands. Because of the magnitude of Federalfunding of State highway programs, the pri-mary impact of section 4(f) has been onhighway and road construction projects.

For section 4(f) to apply, the project mustbe federally funded. Transportation projectsthat are entirely financed by State, local, orprivate funds are not subject to 4(f) restric-


tions. 9 These restrictions do not apply to theFederal funding of State and local planningprocesses and agencies, which may result ina proposal to use park land, since planning isnot a program or project requiring use ofsuch lands within the meaning of section4( f). ’0 Section 4(f) is a limitation on theauthority of the Secretary of Transportationand thus would not generally apply to ap-proval and construction of roads and othertransportation projects on rights-of-way onFederal lands (national parks, refuges,forests, and public land), which are withinthe jurisdiction of the Secretaries of the In-terior and Agriculture, if no DOT funds areinvolved.

PROTECTED LANDS

The purpose of section 4(f) is to protect“public park and recreation lands, wildlifeand waterfowl refuges, and historic sites”from the environmentally destructive effectsof transportation projects, by directing theSecretary of Transportation to deny the useof Federal funds for projects requiring theuse of these lands, in all but the most unusualcircumstances. Lands that are protected bysection 4(f), must meet certain statutory re-quirements. First, except for historic sites,ll

the lands must be owned by the Federal,State, or local government. Second, the landsmust be designated or used as a park, recrea-tion area, refuge, or historic site. Third, thelands must have National, State, or local sig-nificance as determined by the appropriateFederal, State, or local officials. If these re-quirements are satisfied, then the Secretarymay not approve any program or project re-quiring their use unless he finds (1) that thereis no feasible and prudent alternative route,and (z) that the program includes all possibleplanning to minimize harm to the protectedlands. Prior to any such approval, theSecretary must conduct a review of possiblealternative routes and plans based on thebest available information; this process isknown as 4(f) review.

The provisions of section 4(f) clearly applyto components of the National Park System

and the National Wildlife Refuge System.Section 4(f) would also seem to apply to com-ponents of the National Wilderness Preserva-tion System and the National Wild and ScenicRivers System that are not managed as partof the park or refuge systems because of thedesignated purposes of these systems—recre-ation and preservation. In the case of otherFederal lands that are subject to multiple-useclassification, such as the National ForestSystem and public lands managed by theBureau of Land Management (BLM) and theBureau of Reclamation, section 4(f) would notapply if the portion of lands to be taken for atransportation project is not actually beingused for park, recreation, wildlife, water-fowl, or historic purposes, and there is no def-inite formulated plan for such use.12 As an ad-ditional assurance of protection, the manag-ing agency’s land use determination is sub-ject to review by the Secretary for its reason-ableness. 13 Thus, it cannot be assumed thatBLM-public lands and forest system lands areautomatically not subject to 4(f) review. Pub-lic land or forest areas used for recreation,wildlife protection, and historic sites as wellas areas that may be under study for poten-tial designation as wilderness areas or Wildand Scenic Rivers System components mayrequire 4(f) review, but for the most part,many of these lands will not require 4(f) re-view. Moreover, even protected nationalpark, refuge, wilderness, and wild and scenicrivers areas may not require 4(f) review, ifthe appropriate land manager determinesthat they do not have National, State, or localsignificance. This determination of nonsig-nificance must be independently reviewed bythe Secretary of Transportation or his desig-nate.14

Lands owned by State and local govern-ments are subject to section 4(f) if they aredesignated as public parks, recreation areas,wildlife or waterfowl refuges, or historicsites. 15 If the lands are managed for multipleuses and have not been officially designatedto these protected categories, they will fallwithin the ambit of section 4(f) if, in the judg-ment of the official having jurisdiction overthe lands,l6 they are actually used for such


purposes. This land use determination is sub-ject to independent review by the Secretaryfor its reasonableness. Publicly owned lands,which are neither designated nor used forpark, refuge, recreation, or historic purposes,are not subject to 4(f) review and approval.

Historic sites that are listed or eligible forinclusion in the National Register of HistoricPlaces are protected by section 4(f) whetheror not they are publicly owned. An historicsite that is not listed or eligible for theregister, is nevertheless protected if the ap-propriate Federal, State, or local official de-termines that it has National, State, or localsignificance. 17 FHWA regulations for treat-ment of historic sites require that FHWA andState officials apply National Register Cri-teria to all possible historic sites within thearea of potential environmental impact at theearliest possible stage of planning or con-sideration.18 Historic sites that are not listedor eligible for the National Register and thatare not determined to possess National,State, or local significance are not subject to4(f) review and approval. The Secretary orhis designate must review the nonsignifi-cance determination for its reasonableness.

In order to invoke 4(f) review and protec-tion, Federal, State, and locally owned park,refuge, recreation lands, and historic sitesmust be found to have National, State, orlocal significance. The determination of sig-nificance is to be made by the officials thathave jurisdiction over the lands concerned.Any determination of nonsignificance is sub-ject to review for its reasonableness.19 If nodetermination is made by the appropriate of-ficial, then the lands are presumed signifi-cant for administrative proceedings and anysubsequent judicial review. This presumptionis based on the national policy of giving theprotection of these areas paramount im-portance. 20

OVERTON PARK

In 1971, the U.S. Supreme Court inter-preted section 4(f) in Citizens to Preserve

Overton Park, Inc. v. Volpe.21 That case was acitizens’ suit to enjoin expenditure of Federalfunds for the construction of an interstatehighway through a city park in Memphis,Tern., on the grounds that the Secretary ofTransportation, in his approval of the project,had failed to satisfy the requirements of sec-tion 4(f). The district court had granted sum-mary judgment denying the citizens’ claim.The denial was based on an interpretationthat 4(f) was merely advisory and the Sec-retary’s action was, therefore, discretionaryand subject only to narrow judicial review.

The Supreme Court never ruled on themerits of the decision by the Secretary. Thecase record, reflecting the summary judg-ment granted by the district court, did notdisclose sufficient information on which tobase a decision on the merits. The Court did,however, interpret the statute in some detailand clearly set forth the standards for judi-cial review.

The Court found that the Secretary’s deci-sion was subject to judicial review throughsuits by citizens groups or other aggrieved in-dividuals, under section 701 of the Admini-strative Procedure Act,22 since it held thatthere was no statutory provision restrictingreview of such decisions and the matter wasnot a subject committed to agency discretion,thus rejecting the district court’s interpreta-tion of the statute. The limitation on judicialreview of matters committed by law to agencydiscretion under the Administrative Proce-dure Act, applies only in those rare instanceswhere “statutes are drawn in such broadterms that there is no law to apply.”23 In im-plementing section 4(f), the Court found thatthe Secretary of Transportation clearly hadlaw to apply .24

The Court held that section 4(f) and section138 are “clear and specific directives” thatprovide that the Secretary shall not approveexpenditures of Federal funds for any pro-gram or project requiring the use of anypublic parklands unless (1) there is no feasi-ble and prudent alternative to the proposeduse and (2) the project includes all possible


planning to minimize harm from such use.The Court stated, “This language is a plainand explicit bar to the use of Federal fundsfor construction of highways and other trans-portation projects through parks; only themost unusual situations are exempt.”25 TheCourt further noted that the passage of sec-tions 4(f) and 138 marked congressional re-jection of the contention that factors of cost,directness of route, community disruption,and other competing uses should be weighedon an equal basis with the preservation ofpark land.

But the very existence of these statutes in-dicates that protection of park land was tobe given paramount importance. The fewgreen havens that are public parks were notto be lost unless there were truly unusualfactors present in a particular case or thecost or community disruption resulting fromalternative routes reached extraordinarymagnitudes. If the statutes are to have anymeaning, the Secretary cannot approve thedestruction of park land unless he finds thatalternative routes present unique problems .26

Because section 4(f) strictly limited theSecretary’s actions and imposed specific pre-conditions on the approval of transportationprojects that use park land, the Court foundthat the Secretary’s decision was subject tofull judicial scrutiny. Affidavits issued in sup-port of the administrative decision for litiga-tion purposes were found not to be a suffi-cient record of the factors weighed in the 4(f)decision. The Court did not hold that the Sec-retary is required to make formal findings offact in a 4(f) review, but it stated that therecord must disclose the factual basis to sup-port his actions and demonstrate administra-tive compliance with the requirements of4(f).27 In response to the Court’s ruling on theinadequacy of the administrative record,DOT-FHWA regulations now require thepreparation of a special 4(f) statement when-ever 4(f) lands are to be used in a highwayproject. 28

The Court also defined the term “feasibleand prudent alternative” and the factors thatmay properly be considered under each. A

feasible alternative route is a route that isbased on sound engineering practices.29 Con-siderations of cost, delay, and community dis-location are not appropriate factors in thedetermination of feasible alternative routes,but climate, topography, geology, and techno-logical restraints do relate to feasibility. Tofind that there is no feasible alternativeroute, the Secretary must find that, as a mat-ter of sound engineering, the highway orother project could not be constructed alongany other route.30

A prudent alternative route is one thatpresents no unique problems.31 For an alter-native route to be imprudent it must havetruly unusual features so that the costs orcommunity disruption would reach “extraor-dinary magnitudes.”32 High costs, delay, dis-location of homes and businesses, and otherfactors commonly associated with highwayand other transportation construction are notso unusual or extraordinary as to render analternative, which resulted in such effects, animprudent route.

In addition to a finding that there is nofeasible or prudent alternative route, section4(f) requires, as a precondition to approval ofa route using park land or other protectedareas, that the project include “all possibleplanning to minimize harm from such use. ”Thus protective measures, which may add tocosts of the project or impose delay, may notbe rejected because of difficulties involved,since such problems do not render the meas-ures impossible, and the protection of parks,refuges, recreation areas, and historic sitesis to be given predominance over other fac-tors. Considerations of cost, delay, and dis-ruption are factors relating to the prudenceof a particular alternative route and not tothe issue of the adequacy of planning for aroute using 4(f) land.

THE 4(f) STATEMENT

To provide a basis for 4(f) review and arecord of the various factors and alternativesconsidered, DOT-FHWA regulations require

— —


that a 4(f) statement be prepared for projectsor programs that would require use of pro-tected lands within the scope of section 4(f) orsection 138. The purpose of the 4(f) statementis to document the consideration, consulta-tions, and alternative studies carried out indetermining that there are no feasible andprudent alternatives to the use of protectedlands, and to support a determination thatthe proposed action includes all possibleplanning to minimize harm.33 The statement isto be coordinated with the Federal, State, orlocal agency having jurisdiction over theland, with the Departments of the Interiorand Housing and Urban Development, andwhere appropriate, with the Department ofAgriculture.34

DOT-FHWA regulations on preparation ofEISs under the National Environmental PolicyAct (NEPA) require that an EIS be preparedwhenever a 4(f) statement is required. An EISis required for any major Federal actionsignificantly affecting the environment. Theregulations list, among major actions, “a proj-ect that warrants a major action classifica-tion because it has been given national recog-nition by Congress. . . . Such a project wouldbe one that falls under section 4(f) of the DOTAct . . "35 The regulations also provide that“an action that has more than a minimal ef-fect on properties protected under section4(f) of the DOT Act” is to be considered as anaction “significantly affecting the human en-vironment.”36 Both the EIS and the 4(f) state-ment are to be prepared during the locationstage of highway development, prior to theselection of a particular location.37 The 4(f)statement may be prepared in coordinationwith the EIS and may be either a structurallyindependent section of the EIS or a separatedocument. 38 The 4(f) statement normally willaccompany the final EIS through the decisionprocess. 39

The 4(f) statement should list the factorsused to judge that each alternative is notfeasible and prudent along with the specialmeasures planned to minimize harm to theprotected land.40 Each statement should pre-sent a full and complete description of the

proposed project, the 4(f) lands to be used,and the the recreational, historic, wildlife,and environmental characteristics of the sur-rounding community, plus the potential ef-fects on existing facilities and land users.41

Accurate and detailed information must beincluded to support the determination thatthere is no feasible or prudent alternative.“Supporting information should demonstratethat there are unique problems, truly unusualfactors present, and evidence that the cost orcommunity disruption resulting from suchroutes reaches extraordinary magnitudes.”42

The statement must also include the “bestavailable information” on measures to mini-mize harm to section 4(f) land from highwayconstruction. Examples of such measures in-clude replacement of or compensation forlands taken, improvement of remaining landsand facilities, design features to reduce theeffects of such use, construction of substitutefacilities prior to destruction or taking of 4(f)lands, and conducting scheduled demolition,moving, and construction activities during theoff-season. 43 Finally the statement should in-clude a summary of the coordination withother Government agencies, and copies ofcomments received during agency review andtheir disposition.44

In order for the Secretary to approve use oflands protected by section 4(f) and section138, he must find that there is no feasible andprudent alternative to their use and that allpossible planning has been done to minimizeharm. There must be consideration of alter-native routes and plans, all of which must befound to be neither prudent nor feasible. Con-siderations of cost, disruption, and delaybear on the determination of prudence butthey are not to be given equal status with thenational policy on preservation of park andother lands. Only the most unusual circum-stances will justify approval of a routethrough park land. Any statement proposinguse of 4(f) land must include all possible plan-ning to avoid environmental harm before itmay be approved. Cost, delay, and disruptionare all factors relating to the prudence of the


route and not to the issue of planning. Thereview of alternative routes and plans, coor-dination with other agencies, and factorsleading to the approval of use of protected

ment.45 Only after the substantive and proce-dural requirements of 4(f) have been satisfiedmay the Secretary approve Federal expend-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, 49U,S.C, section 1651 et seq.

249 U.S,C, section 1651(b)(2).349 U,S.C. section 1653(f).‘Id.‘Through several amendments, section 138 is now

substantially identical to section 4(f): Public Law89-574, section 15, 80 Stat. 771, Sept. 13, 1966, asamended by Public Law 90-495, section 18(a), 82 Stat.823, Aug. 23, 1968, and Public Law 94-280, Title 1, sec-tion 124,90 Stat, 440, May 5, 1976,

‘Public Law 94-280, Title 1, section 124, 90 Stat, 440,May 5, 1976,23 U. S. C., 138.

7See note, “Protecting Public Parkland from IndirectFederal Highway Intrusion, ” 62 Iowa Law Review 960[1977) at 963, n. 31.

‘The routes for Federal-aid highways are designatedby State or local officials subject to approval by theSecretary of Transportation, 23 U.S.C. 103, 23 U.S.C.317, 23 U.S.C. 103(f). The State of Alaska is heavilydependent on Federal funds for the construction of sur-face transportation facilities as are other States. In FY1976, the Department of Transportation provided over$113 million for the construction or repair of surfacetransportation facilities in Alaska. It is doubtful thatthe State of Alaska would make any large expendituresfor surface transportation facilities without Federalsupport. H. D. Scougal, Alaskan Commissioner ofHighways, “Highway Status for 1976, Plans for 1977,”Alaska Construction and Oil, January 1977, p. 51.

‘See Citizens for Food and Progress, Inc. v. A4usgrove,397 F. Supp. 397 (D. Ga. 1975), and Named Indiv. Mem-bers of the San Antonio Conservation Society v. TexasHighway Dept., 496 F.2d 1017, at 1022-23 (5th Cir.1974], cert. denied, 420 U.S. 296 (1975).

IOHi]~ v. Co]eman, 399 F. Supp. 194 (D. Del. 1975).“23 CFR section 771.19(b). See also, Thompson v.

Fugate, 347 F. Supp. 120 (E.D. Va. 1972), Daly v. Volpe,350 F. Supp. 252, 256 (W.D. Wash, 1972), aff’d mem.,514 F.2d 1106 (9th Cir. 1975).

1223 CFR 771.19(d).“Id.1423 CFR 771.19(c).IsCitizens Environmental Counsel v. VoJpe, 365 F.

Supp. 286 (D. Kan. 1973), aff’d, 484 F.2d, 870, cert.denied, 416 U.S. 936.

1’23 CFR 771,19(d),

1723 CFR 771.19(b).“23 CFR 771.20.“23 CFR 771. 19(c).20&]ington coalition on Transportation V. Volpe, 458

F.2d 1323 (4th Cir, 1972), cert. denied, 409 U.S. 1000,2’401 U.S. 402 (1970).225 U.s.c. 701.z3401 U.S. 41o, citing, S. Rept. 752, 79th COng. 1st

sess. 16 (1945).24401 Us. 4110“Id.2’Id, at 412,413,271d, at 408.2823 CFR 771.19.29401 U.S. 411, In Brooks v. Coleman, 518 F.2d 17, 19

(9th Cir. 1975), the Ninth Circuit interpreted feasibilityto require a tested engineering method and held infea-sible a proposed method that had never been tried inthe United States. See also, Monroe County Conserva-tion Council v. Volpe, 472 F.2d 693 (2d Cir. 1972).

30401 Us. 411.3’401 U.S. 413,321d.3323 CFR 771,19(a).3’23 CFR 771.19(g).3s23 CFR 771.9(d)(7),3623 CFR 771. IO(e)(i).’723 CFR 771.5(b). FHWA regulations divided high-

way development into four stages: (1) System PlanningStage—regional analysis of transportation needs andthe identification of transportation corridors; (2) Loca-tion Stage—from the end of system planning throughthe selection of a particular location; (3) Design Stage—from the selection of a particular location to the start ofconstruction; and (4) Construction. 23 CFR 795.2(e).

3823 CFR 771. lg(f), See also, Stop H-3 Ass ‘n. v. Co~e-man, 533 F.2d 434 (9th Cir, 1976).

3923 CFR 771.19(n).4“23 CFR 771. 19(f).4’23 CFR 771.19(i).4223 CFR 771.19(]).4323 CFR 771.19(k).4423 CFR 771.19(n).45D. C. Federation of Civic Associations v. Volpe, 459

F.2d 1231 (D.C. Cir. 1972), cert. denied, 405 U.S. 1030.


ENDANGERED SPECIES ACT OF 1973

The Endangered Species Actl provides forFederal identification of endangered andthreatened species of fish, wildlife, andplants; prohibits private activity that imperilssuch species; and requires Federal agenciesto avoid any activities that would jeopardizesuch species or result in the destruction ofcritical habitats. In its restriction on Federalactivities, particularly land use decisionsrelating to critical habitats, the Act couldhave an effect on access to mineral re-sources.

ENDANGERED SPECIES

The Act sets forth the following purposes:

. . . to provide a means whereby the eco-systems upon which endangered species andthreatened species depend may be con-served, to provide a program for the conser-vation of such endangered species andthreatened species, and to take such steps asmay be appropriate to achieve the purposesof the treaties and conventions set forth insubsection (a) of this section.2

The Secretary of the Interior, in consulta-tion with the Secretary of Commerce, isdirected to promulgate regulations identify-ing endangered species and threatened spe-cies.3 An endangered species is defined in theAct as:

. . . any species which is in danger of extinc-tion throughout all or a significant portion ofits range other than a species of the Class In-secta determined by the Secretary to consti-tute a pest whose protection under the provi-sions of this chapter would present an over-whelming risk to man.4

A threatened species is defined as:

. . . any species which is likely to become anendangered species within the foreseeablefuture throughout all or a significant portionof its range.5

The determination of whether a particularspecies of fish, wildlife, or plant is en-


dangered may be based on any of the follow-ing factors:

1.

2.

3.

4.

5.

The present or threatened destruction,modification, or curtailment of its hab-itat or range;

Overutilization for commercial, sporting,scientific, or educational purposes;

Disease or predation;

The inadequacy of existing regulatorymechanisms; and

Other natural or manmade factorsaffecting its continued existence.6

The determination must be on the basis of“the best scientific and commercial dataavailable” to the Secretary after appropriateconsultation with affected States, interestedpersons and organizations, interested Fed-eral agencies and, for foreign species, con-sultation with affected nations. Summaries ofcomments received on the proposal to add orremove a species from the endangered spe-cies list are published in the Federal Register.

PROHIBITED ACTS

The Secretary of the Interior is authorizedto issue “such regulations as he deems nec-essary and advisable to provide for the con-servation” of listed species. With respect toany listed endangered species it is unlawfulto “. . . take any such species within theUnited States” or “upon the high seas,” or to" . . . violate any regulation pertaining to suchspecies or to any (listed) threatened spe-cies.”7 As used in the Act, “the term ‘take’means to harass, harm, pursue, hunt, shoot,wound, kill, trap, capture, or collect, or to at-tempt to engage in any such conduct.”8 Regu-lations issued or proposed pursuant to theAct are to be published in the Federal Reg-ister with a statement by the Secretary of thefacts supporting the regulation and the rela-tionship of such facts to the regulation.9


Federal Actions

Section 7 of the Endangered Species Act re-quires that all Federal agencies take steps toensure that their actions do not jeopardizethe existence of endangered and threatenedspecies.

All other Federal departments and agen-cies shall, in consultation with and with theassistance of the Secretary, utilize theirauthorities in furtherance of the purposes ofthis chapter by carrying out programs forthe conservation of endangered species andthreatened species listed pursuant to section1533 of this title and by taking such actionnecessary to insure that actions authorized,funded, or carried out by them do not jeop-ardize the continued existence of suchendangered species and threatened speciesor result in the destruction or modification ofhabitat of such species which is determinedby the Secretary, after consultation as ap-propriate with the affected States, to becritical. ’”

Thus, a Federal land management agencyevaluating a proposed action (such as grant-ing a right-of-way over Federal lands) mustconsider whether the action may harm an en-dangered or threatened species or detri-mentally affect a critical habitat. The agencymust consult with the Secretary of the In-terior (primarily through the Fish and Wild-life Service) to determine whether any harmmay result and what steps can be taken toavoid or lessen any risk to an endangered orthreatened species or a critical habitat.

In areas that are home to unique and en-dangered species, a consideration of thepotential effects a proposed action mighthave and of the conditions necessary tosafeguard the protected species in compli-ance with the Act could impose substantialand additional constraints on a Federal landmanagement agency’s issuance of rights-of-way across Federal areas. In other areaswhere there are few or no endangered spe-cies, the compliance requirements wouldhave a lesser, if any, effect on the actions ofFederal land management agencies.

Section 7 of the Endangered Species Act of1973 has been interpreted by the courts asimposing a duty on all Federal agencies to en-sure that their actions would not jeopardizethe continued existence of any endangered orthreatened species. Compliance with the sec-tion requires that all agencies must considerthe effects, if any, a proposed action mayhave on an endangered or threatened speciesand must consult with the Secretary of the In-terior in devising programs for the conserva-tion of listed species. These duties are en-forceable in court by a citizen’s suit author-ized by section Ii(g) of the EndangeredSpecies Act.

Any agency that fails to satisfy the require-ments of the Act in its consideration or ap-proval of any action maybe enjoined from im-plementing the proposed action until theagency is in compliance.

Judicial review of the Endangered SpeciesAct has centered on two questions: (1) Canthe Secretary of the Interior, by disapprovingof agency action with respect to an endan-gered or threatened species, veto such a proj-ect? and (z) Can a court permanently enjoin aproject on the grounds that it violates theAct?

The first question has, apparently, beenanswered in the negative. In National Wild-life Federation v. Coleman, the fifth circuitheld:

However, once an agency has had mean-ingful consultation with the Secretary of theInterior concerning actions which may affectan endangered species the final decision ofwhether or not to proceed with the actionlies with the agency itself, Section 7 does notgive the Department of the Interior a vetoover the actions of other agencies, providedthat the required consultation has occurred.It follows that after consulting with theSecretary the Federal agency involved mustdetermine whether it has taken all necessaryaction to insure that its actions will notjeopardize the continued existence of an en-dangered species or destroy or modify hab-itat critical to the existence of the species. ”


In another case involving section 7, it washeld:

Consultation under section 7 does not re-quire acquiescence. Should a difference ofopinion arise as to a given project the respon-sibility for decision after consultation is notvested in the Secretary but in the agency in-volved.12

But having reached the decision that sec-tion 7 does not provide for a veto of projectsby the Secretary of the Interior, both courtsruled that the decision of an agency to goahead with a project that might present a riskto an endangered species was a proper sub-ject for judicial review under the standardsof the Administrative Procedure Act. Thatstandard provides that an agency action maybe reversed if it is found that an agency de-cision was “arbitrary, capricious, an abuseof discretion, or otherwise not in accordancewith the law.”13 It is the application of thelast part of this test to agency actions whichadmittedly harm an endangered species, butare justified on other grounds, that remainsa subject of controversy and judicial uncer-tainty.

In Hill v. Tennessee Valley Authority(TVA), 14 the celebrated case involving thehalting of the $100 million Tellico Dam be-cause its construction threatened the exist-ence of the snail darter, the sixth circuitfound that a decision to continue the projectwould be a “prima facie” violation of section7 and, hence, unlawful.15 The opinion seemsto vigorously reject the notion that violation ofthe Act may properly be balanced againstother benefits associated with the project:

TVA concedes the existence of a predict-able causal nexus between the impoundmentof the Little Tennessee and the ultimate de-pletion of the snail darter population. Thisadmission alone suffices to bring the affirm-ative action requirement of section 7 intoplay. l6

TVA claims to have done everything possi-ble to save the snail darter, short of aban-doning work on the dam. That alternative isdeemed by TVA to be innately unreasonable.We do not agree. It is conceivable that the

welfare of an endangered species may weighmore heavily upon the public conscience asexpressed by the final will of Congress, thanthe writeoff of those millions of dollarsalready expended for Tellico in excess of itspresent salvageable value.17

The court accepted the opinion of the De-partment of the Interior that the Act wasviolated by an action which:

. . . might be expected to result in a reductionin the number or distribution of the speciesof sufficient magnitude to place the speciesin further jeopardy, or restrict the potentialand reasonable expansion or recovery of thespecies.18

It also indicated that, despite the lack of aveto power, the views of the Secretary of theInterior on the effect of an agency actionwere to be given great weight. After notingthe lack of veto authority, the court stated,“However, his compliance standards mayproperly influence final judicial review ofsuch actions, particularly as to technical mat-ters committed by statute to his special ex-pertise.”19

On June 15, 1978, the Supreme Court af-firmed the ruling of the sixth circuit in theTellico Dam case.20 In upholding the circuitcourt decision, the Supreme Court rejectedTVA’s arguments that the dam should be ex-empted from section 7. The Court dismissedthe argument that Congress had exemptedthe dam from section 7 by implication be-cause it had continued to appropriate fundsafter the snail darter was designated as anendangered species.21 In response to TVA’sargument that section 7 should be interpretedto allow the monetary value of the substan-tially completed project to be weighed againstthe “value” of the snail darter, the Courtsaid:

The plain intent of Congress in enactingthis statute was to halt and reverse the trendtoward species extinction, whatever theCost.22

The Court found that there was an “irrec-oncilable conflict” between the operation ofthe Tellico Dam and the explicit provisions of


section 7 and that in such circumstances theplain and unambiguous meaning of section 7must prevail.

Congress has spoken in the plainest ofwords, making it abundantly clear that thebalance has been struck in favor of affordingendangered species the highest of priorities,thereby adopting a policy which it describedas ‘institutionalized caution. ’23

FOOTNOTE

I

REFERENCES

The case of the notorious snail darter re-sulted in legislative action to amend section 7,even before the final decision in Hill wasissued by the Supreme Court. In the final daysof the 95th Congress, the Endangered SpeciesAct was reauthorized under a compromisebill that set up a process for exempting someFederal projects that might harm a protectedspecies or habitat.24

SPECIES ACT

‘Public Law 93-205, 87 Stat. 885, Dec. 28, 1973, asamended by Public Law 94-359, 90 Stat. 911 July 12,1976, 16 U.S,C, 1531 et seq.

216 IJ. S.C. 1531(b). These treaties include the Conven-tion on International Trade in Endangered Species ofWild Fauna and Flora and the Convention on NatureProtection and Wildlife Preservation in the WesternHemisphere,

316 U.S.C. 1532(4).416 U.S,C, 1532(15).516 U.S. C. 1533(a)(l).’16 U.S.C. 1533(b)(l).716 U.S.C. 1538(a).616 U.S.C. 1532(14).’16 U.S.C. 1533(f)(3).’016 U,S.C. 1537.llNationa] Wi]d]ife Federation v. Coleman, 529 F. 2d

369 (5th Cir. 1976) cert. denied, 97 S. Ct. 489 (1976). I-Ii]]v. TVA, 549 F.2d 1064, 1071 (6th Cir. 1978) abstractsNational Wildlife Federation v. Coleman as follows:

The welfare of the Mississippi Sandhill Crane wasthreatened by the future construction of a 5.7-mile seg-ment of Interstate Highway 1-10 scheduled to traverse theCrane’s designated critical habitat. Only 40 SandhillCranes are known to exist. Based on the weight of the evi-dence, the Fifth Circuit reversed the district court’s denialof injunctive relief and remanded the case with instruc-tions that an injunction issue halting activities whichmight jeopardize the continued existence of the Missis-sippi Sandhill Crane or destroy or modify critical habitat.The injunction is to remain in effect until the Secretary ofthe Interior determines that modifications to the projectwill bring it into compliance with the Act.In National Wildlife Federation v. Coleman, as in I-IiII,

the Department of the Interior had objected to the agen-cy decision to continue with a project.

Izsierra C]ub v. Froeh]ke, 534 F. 2d. 1289 (5th Cirj1976). This case involved the alleged impact of con-struction of the Meramec Park reservoir by the Corpsof Engineers on the Indiana bat. A request for injunc-tive relief was denied on the grounds that the Sierra

FOR ENDANGERED

Club had failed to meet its “burden of showing that theaction of the Corps had jeopardized or would jeopard-ize the continued existence of the Indiana bat. ” Id. at1305.

‘3 See Sierra Club v. Froehlke, 534 F.2d 1289, 1304.lqHi~] v. Tennessee Valley Authority, 549 F.2d. 1064

(6th Cir. 1977), The Tellico Dam—a concrete and earth-fill dam near the mouth of the Little Tennessee River—was originally approved by Congress in 1966. It hadbeen the subject of two previously unsuccessful courtchallenges under the National Environmental PolicyAct alleging defects in the environmental impact state-ment. In August 1973, a University of Tennessee ichthy-ologist discovered a hitherto unknown species of fish,the snail darter (Percina Zmostoma tanasai) thriving inthe Little Tennesse River. It is a 3-inch, tannish, bottom-dwelling member of the perch family that feeds onfreshwater snails. The river not only provides a fullsupply of food, but also, because it is free-flowing,maintains, through the aerating action of its rapidlymoving currents, the high oxygen levels required to sus-tain this species. The snail darter’s range appears to bewholly confined to a 17-mile stretch of the Little Ten-nessee. TVA searched approximately 70 rivers in Ala-bama and Tennessee without finding any more speci-mens of this species. The agency also attempted, unsuc-cessfully to transplant some specimens to a similarriver.

On Nov. 10, 1975, the Secretary of the Interior desig-nated the snail darter an endangered species, 50 CFR17.ll(i), 40 F.R. 4705 (Nov. 10, 1975). In April of 1976,the U.S. Fish and Wildlife Service designated rivermiles 0.5 to 17 as the critical habitat of the snail darter.50 CFR 17.61, 41 F.R, 13926. The Tellico Dam, over 80percent complete, was scheduled to have been com-pleted in January 1977.

‘sHill v. TVA, 549 F.2d, at 1069,1070.“Id. at 107o.‘71d. at 1074.

—


‘eId. at 1070. The Department of the Interior defini- z198 S. Ct. 2279, 2299.tion was set forth at 40 F,R. 17764 (1976).

2298 S. Ct. 2297.‘eId. at 1070.

2398 S. Ct. 2302.20TVA v. Hill,—U.S.—, 98 S. Ct. 2279, 57 L. Ed 2117, 24 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

The Clean Air Act, as amended,’ estab-lishes a national program for the regulationof air pollution. The program is directed bythe Environmental Protection Agency (EPA).State and local governments have primaryresponsibility for the prevention and controlof air pollution at the source, subject to EPAreview. Federal land management agenciesand Indian tribes also play an important rolein determining air quality control standardson Federal and Indian lands.

The Act applies to all areas, not just thosesuffering from extreme air pollution. Its ef-fects are most strongly felt in areas at op-posite ends of the clean air spectrum: thoseareas having the cleanest air and thosewhere air pollution presents a danger to thepublic health. The latter areas—known asnonattainment regions—are under strict reg-ulatory controls designed to reduce levels ofair pollution. The former—generally callednondegradation regions—are affected by astatutory program for the prevention of sig-nificant deterioration (PSD) aimed at preserv-ing the existing high air quality.

Mining activities, particularly those in theWestern United States and Alaska, are likelyto be affected by the PSD program becauseair quality in that part of the country isgenerally quite good. However, occasionallybecause of mining operations, some westernareas are in nonattainment status. In addi-tion, some mining operations and activitiesassociated with mining, such as smelting andrefining and fossil fuel electric generation,are major sources of air pollution and subjectto regulation wherever located.

Regulation under the Clean Air Act is fo-cused on the prevention and reduction of airpollution involving five so-called “criteriapollutants:” particulate, sulfur oxides, car-bon monoxide, nitrogen dioxide, and photo-chemical oxidants.2 These substances, whichare known to adversely affect public health


jf,-~{~ ( ) - T I - ]J

AIR ACT

and safety, are common products of indus-trial, commercial, and transportation ac-tivities. Based on medical information, EPAhas established national standards for themaximum allowable concentrations of thesepollutants in air. “Primary standards” areset at levels necessary to protect the publichealth from the known adverse effects ofthese pollutants. More stringent “secondarystandards” have been established for some ofthese pollutants to protect the public welfarefrom the known and anticipated adverse ef-fects of a pollutant. The Clean Air Act setsforth an exact timetable by which all areas ofthe Nation are to meet primary standards foreach pollutant; secondary standards are tobe met on a more flexible schedule.

To achieve the statutory goal of reducingthe presence of the criteria pollutants belowthe primary and secondary standards, theClean Air Act authorizes a broad array ofplans, programs, and regulatory actions. Themajor elements of the program are:3

●

●

●

●

●

Establishment of national ambient airquality standards (NAAQS) for air pol-lutants known to pose a risk to the publichealth or welfare;

Submission by the States of implementa-tion plans to achieve and maintain Fed-eral air quality standards;

Review and approval of State implemen-tation plans by the Administrator of EPAand issuance of regulations at the Fed-eral level to remedy any deficiencies inState plans;

Federal emission standards for majornew industrial, commercial, and elec-tric-generating facilities;

State programs to monitor air quality, in-spect facilities, and issue permits to limitemissions from major sources of pollu-tion: and


● A program to prevent significant de-terioration of air quality in areas thatexceed Federal air quality standards forthe criteria pollutants.

The regulations generated through theseprograms govern all sources of air pollution,including mining. Mining activities can bedirectly and indirectly affected by severaldifferent aspects of clean air regulation. AState Implementation Plan (SIP) may set emis-sions standards for new facilities or requireexisting facilities to abate present air pollu-tion levels. Federal “standards of perform-ance” have been promulgated for certainlarge industrial facilities, setting minimum re-quirements for the use of pollution controltechnology. Preconstruction review of newsources of pollution is required in both non-attainment and nondegradation areas; in non-attainment areas, new sources of pollutionmust use the most advanced pollution controltechnology available, in nondegradationareas, new sources, which would increasepollution beyond specifically stated limits,are flatly prohibited. New, as yet undefinedrequirements, will be placed on sources ofpollution that affect visibility in nationalparks and wilderness areas.

It is difficult to predict the exact effect theClean Air Act will have on mining activities ormineral access. Not only are the major im-pacts of air quality regulation highly site-specific, but the recently enacted Clean AirAct Amendments of 1977 made majorchanges in several areas that most directlyaffect the mining industry. In some instances,Federal regulations implementing thosechanges have not yet been put in final form.Changes in State regulatory programs, whichflow from the amendments, will also take timeto develop.

To understand the existing status of regu-lation under the Clean Air Act and the intentand likely impact of the 1977 amendments, itis necessary to have some background on theimplementation of the Clean Air Act Amend-ments of 1970 and the problems which aroseunder that law.

IMPLEMENTATION OF THE CLEANAIR ACT AND THE 1977

AMENDMENTS

The 1970 amendments to the Clean Air Actlaunched an ambitious program for theabatement of air pollution by 1977. Problemsencountered in meeting this objective led toits major revision by the amendments of 1977.

The 1970 amendments to the Act ex-pressed the intent of Congress that air qualitystandards should be adequate to protect thepublic health, that they should be inviolableand not subject to compromise, and that theyshould be met according to a timetable setforth in the Act. Compliance extensionsgranted to the automobile industry by EPA,and the 1973 energy crisis, which resulted inshortages of low-polluting fuels, contributedto delays in meeting the timetable. Theseproblems were addressed in the Energy Sup-ply and Environmental Coordination Act of1974 (ESECA),4 which further extended autoemission control deadlines, and mandated theincreased use of coal and other domesticfuels by temporarily lowering the standardsfor certain industries and by extending imple-mentation schedules.

Although, by 1975, some pollutant emis-sions had been reduced and some progressmade nationwide in controlling air pollution,industrial growth and the proliferation ofautomobiles more than offset whatever im-provements had been made. Moreover, newdata indicated that pollutants from heavilycontaminated areas were spreading to re-mote rural regions, and that air pollutantssuch as sulfates and sulfuric acid, for whichthere were no air quality standards, were be-ginning to present new health hazards. EPAreported that by 1977 only 91 of the Nation’s247 air quality control regions had achievednational primary air quality standards for allof the major regulated air pollutants.5 TheCouncil on Environmental Quality (CEQ)found that emissions from automobiles wereincreasing at a rate of 4.6 to 4.9 percent peryear, and that emissions from stationary


sources were contributing progressively in-creasing proportions to the pollutant load inthe ambient air. For example, the totalnitrogen dioxide emissions from powerplantswere increasing at an annual rate of 6.9 to7.4 percent.’ A study conducted for Congressby the National Academy of Sciences con-cluded that safety margins associated withambient air quality standards were onlymarginally adequate; that about 40 millionpersons could be classified as susceptible tounhealthy air; and that an estimated 15,000excess deaths were caused by air pollutionannually, 4,000 of them directly attributableto automobile emissions.’ Additional fieldtests conducted by individual States showedthat damage linked directly to industrialpollution, which extended hundreds of milesbeyond the sources of emissions, was reduc-ing yields in forests and other crops in someregions by as much as 75 percent.

This last finding was particularly signifi-cant because the courts had interpreted theClean Air Act as requiring the protection ofair quality in areas that were cleaner thanthe national standards.’ In response to thecourts, the EPA promulgated regulations latein 1974, which developed a system for classi-fying areas with respect to allowable incre-mental pollution:9 Class I areas, in whichalmost no increment was allowed; Class 11areas, in which moderate increments wereallowed; and Class III areas, in which in-crements to the national standard wereallowed. Initially, all areas were classified asClass II.

The 1977 amendments to the Clean Air Actcontained detailed provisions for the preven-tion of significant deterioration. Specifiedpermissible increments of sulfur oxides andparticulate were established. Certain Fed-eral areas were immediately designated asClass I areas, where air quality was to re-main virtually unchanged. All other clean airareas were designated Class II, thus allowingmoderate industrial growth. The States mayredesignate Class II areas as they deem ap-propriate, subject to procedures, such as

hearings and consultation with Federal landmanagers, required in the Act.

Classification under the Clean Air Act is ofparticular concern to the mineral industry inAlaska and in the West, where there are vastareas where air quality meets or exceeds thenational secondary standards, and wheresome large conservation units have been des-ignated as mandatory Class I areas. Thereare certain other Federal land managementunits that may not be redesignated as ClassIII areas.

The 1977 amendments to the Clean Air Actalso contain a new section dealing with pollu-tion controls to achieve visibility goals forcertain Federal areas where visibility hasbeen identified as an important value. Theseareas are to be studied and any necessarymeasures taken to achieve the establishedvisibility standards. In addition, the 1977amendments extended the deadlines formeeting the EPA NAAQS from mid-1977 toDecember 31, 1982, for sulfur oxides, nitro-gen dioxide, and particulate matter, and toDecember 31, 1987, for carbon monoxide andphotochemical oxidants.

REGULATION UNDER THECLEAN AIR ACT

Mining activities are governed by Title I ofthe Clean Air Act, which covers air pollutionfrom stationary sources. Unlike Title 11 ofthe Act, which established Federal controlson automobile emissions, Title I operatesthrough a series of regulatory strategies,some developed and enforced at the Statelevel, some at the Federal level, and somewithin specialized local units of governmentwith responsibility for air pollution control.Furthermore, under Title I, the type of regula-tion applied to nonvehicular sources of pollu-tion lacks the exact and all-encompassingcharacter of auto pollution regulation. Eachautomobile has a federally assigned exactemission limit it must meet, these limits areset forth years in advance and they are the


only air pollution requirements placed onautos.

Stationary sources 10 rarely have exact andforeseeable l imits placed on them (newsource standards of performance are an ex-ception). Pollution restrictions are deter-mined by the location of a source, by whatother sources of pollution already exist in anarea, by whether a source is new or old, bywhich criteria pollutant, if any, it emits andby whether an area is in either a nonattain-ment or a nondegradation region. Dependingon the type of facility and its location, pollu-tion regulations may be imposed by a State orlocal unit of government, by EPA, or by allthree. On occasion, the emissions of one pollu-tant will be subject to a certain level of con-trol, e.g., a requirement that emissions limita-tion technology be at least as good as thatused anywhere in the country; and the emis-sions of another pollutant will be controlledunder a totally different regimen or effective-ly uncontrolled.

Mineral access is affected by several im-portant elements of the clean air regulatoryprogram. These include: the establishment ofNAAQS of performance; prevention of signifi-cant deterioration; restrictions on nonattain-ment areas; and the visibility program. Eachof these will be discussed below. Where ap-propriate there will be discussion of the rolesof Federal land managers in pollution controland in analysis of State and local regulationin Alaska. All section references are to theClean Air Act.

NATIONAL AIR QUALITYSTANDARDS

Section 109 provides for the developmentof national air quality standards for majorpollutants. Two types of ambient air qualitystandards are designated:

1. Primary standards, which establish thelevel of air quality necessary with anadequate margin of safety to protecthuman health.

Z . Secondary standards, which establishlevels necessary to safeguard valuespertaining to public welfare includingplant and animal life, visibility, build-ings, and materials.

National ambient air quality standards havebeen established for the following pollutants:carbon monoxide, sulfur dioxide, nitrogen di-oxide, particulate matter, hydrocarbons, andphotochemical oxidants. 11 (A standard is be-ing developed for lead.) In each case, thestandard gives the maximum concentrationallowed during a given time period, and fre-quently places a limit on the number of timesthat the concentration can be exceededwithin a given time period.

Classification of an area with respect tothe ambient air quality for each pollutant hasimportant consequences. The Nation is di-vided into 247 air quality control regions(AQCR) for the purpose of managing pollutioncontrol programs at the local level. Compli-ance with an NAAQS is generally measuredon an ACQR basis, although smaller area des-ignations are permitted by EPA for somepollutants where they form an appropriatebasis for control of the pollutant. These des-ignations are extremely significant. Areasthat are found by EPA to be in nonattainmentstatus are subject to a particular set of re-quirements under part D of the Act. Areasthat meet or exceed standards are subject tothe PSD regulations set forth in part C of theAct. Classification of a large area on thebasis of a highly localized condition couldhave the effect of placing inappropriate anddemanding requirements on areas that didnot need or deserve them.

Alaska is divided into four AQCRS .12 A l lfour regions exceed the national standardsfor particulate, oxidants, nitrogen oxides,and sulfur oxides. The cities of Fairbanks andAnchorage (but not the rest of the two AQCRsin which they are located) are nonattainmentareas for carbon monoxide while the rest ofthe State exceeds the national standards. 13

Thus Fairbanks and Anchorage will be bothnonattainment and nondegradation areas,


while the rest of the State will be a nondegra-dation area for all pollutants. Similarly muchof Arizona has nonattainment status for par-ticulates and oxidants, while the whole Stateexceeds national standards for nitrogen diox-ide and all but two counties exceed the stand-ard for carbon monoxide. 14

While an attainment or nonattainmentstatus for an area has an extremely impor-tant regulatory impact on existing sources ofpollution, it has substantially less importancein the regulation of new sources. With thepassage of the 1977 amendments, almostevery new source of pollution will undergo astringent preconstruction review regardlessof whether it is located in an attainment areaor a nonattainment area. The preamble to thefinal rule setting forth attainment statusdesignations indicates three reasons why thiswill happen:15

First, new sources, wherever they proposeto locate, must be reviewed for their impacton all nearby areas as well as that in whichthey would locate. If an area on which a newsource would impact is designated different-ly than the one in which it is located, thedesignation of the latter would not necessari-ly determine the rules to which the sourcewould be subject, Second, PSD rules apply inany area in which at least one NAAQS is at-tained, and since virtually every area in thecountry shows attainment for at least onepollutant, the PSD review will be a requisitevirtually everywhere. Finally, case-by-casenew source review is necessitated to accountfor the possibility that an area with a par-ticular designation may encompass “pock-ets” which do not fit the designation,

STATE IMPLEMENTATION PLANS

Section 110 requires each State to submitan implementation plan that sets forth thesteps it will take to meet both the primary andthe secondary standards” for each pollutantthat is subject to an NAAQS. The plan mustshow that it will meet the primary standardswithin the statutory time limit and the second-ary standards within a reasonable timethereafter.

A State Implementation Plan (SIP) cannotbe approved unless the State has the legalauthority to:17

1.

2.

3.

4.

5.

6.

Adopt emission standards and limita-tions;

Enforce laws and regulations and seekinjunctive relief;

Reduce pollution emissions on an emer-gency basis;

Prohibit the construction or operation ofany source that will prevent either theattainment or the maintenance of anyair quality standard or that will inter-fere with resources to prevent signifi-cant deterioration;

Obtain all necessary information; and

Require owners and operators of sta-tionary sources to install emission moni-toring devices.

Every implementation plan must indicatehow these legal authorities will be used in ex-ecuting a control strategy for each pollutant,Compliance schedules for the gradual abate-ment of major existing sources of pollutionare central to these control strategies. Stateand local officials are primarily responsiblefor making decisions about the amount thatpollution must be reduced by existing facil-ities. The EPA has the authority to disapprovecompliance schedules that, owing to the tim-ing of extensions, prevent attainment ormaintenance of air quality standards. For themost part, however, it is up to the State todecide the mix of sources to be abated, towhat extent, and in what period of time.Within the framework of NAAQS and thestatutory time period, the State has a choiceof options. (When there is, for example, asingle large emitter that causes the standardsto be violated, these options obviously becomelimited.) A State can also decide how much toreduce pollution below the existing levels inorder to improve the air quality sufficiently toallow for new industry and development.

The timetable for meeting NAAQS in theClean Air Act of 1970 called for attainment in


most regions by 1975, with no extensionsbeyond 1977. Not only were these deadlinesgenerally unmet, but EPA had little effectiveauthority to enforce them. By 1977, onlyabout 40 percent of all AQCRs were meetingthe requirements for particulate and photo-chemical oxidants, and about 20 to 25 per-cent did not achieve the standards for sulfurdioxide and carbon monoxide.18

Congress responded by extending the stat-utory compliance dates for particulate,nitrogen dioxide, and sulfur oxides untilDecember 31, 1982, and for carbon monoxideand photochemical oxidants, until December31, 1987. In addition, stricter limits wereplaced on such activities as the constructionof new stationary sources. One provision ofthe 1977 amendments19 makes it mandatoryfor State plans to include an enforceable per-mit program for regulating the construction,modification, or operation of any major sta-tionary source in areas that are not in an at-tainment status or that have pollution levelsabove the national standard.2o

The States are responsible for formulatingimplementation plans, but if a plan is deemedinadequate, the Administrator of the EPA hasthe authority to promulgate a plan.21 In prac-tice, he will normally approve a plan “withexceptions, and only issue whatever provi-sions are needed to meet specific deficien-cies.22 His right to promulgate plans is limitedto those regulatory aspects where he can relyon authorities granted by the Act; and whilehe can disapprove any nonregulatory aspectof a plan, he cannot issue substitute provi-sions. 23 In other words, if the Administratordisapproves of such elements of the plan asnumbers, dates, procedures, and samplingmethods he can change them. But if, for ex-ample, he finds that a State agency lacks aparticular needed authority, or even thatthere is no proper State agency, he cannot in-vest the existing agency with the missingpower or create a new agency. He can, how-ever, assume the regulatory function, e.g., re-quire that permits be filed with EPA.

The siting of mining operations and associ-ated primary-processing and electric-gener-

ating facilities could be constrained in someareas by SIP provisions for attaining andmaintaining NAAQS. For example, in areaswhere the standards for particulate matterare frequently exceeded owing to naturalphenomena such as duststorms (these occurin Alaska and in parts of the West), addition-al sources of high dust generation from activ-ities such as surface mining or mine road con-struction and use may be restricted.24 The de-velopment of mine-associated primary-proc-essing plants and electric-generating facil-ities must satisfy emission standards set forthin the SIP. Those portions of the SIP that dealwith preconstruction review of new sourcesmost directly affect the mining industry.

PRECONSTRUCTION REVIEW OFMAJOR NEW STATIONARY

SOURCES

New facilities, buildings, structures, or in-stallations are indicative of industrial devel-opment and commercial growth. However,they are also potential emitters of air pollu-tion. The Clean Air Act is intended to en-courage, and if need be compel, the buildersof major sources of pollution25 to use the mostadvanced technology for pollution control. Ifsuccessful, this will replace existing high-pollution installations with a generation oflow-pollution facilities and provide some lee-way for future industrial expansion, withoutimperiling air quality.

The control of new sources is accomplishedby preconstruction review. This is generallyundertaken by the State or other local govern-ment unit that is responsible for the imple-mentation of air quality plans. There are fourdifferent types of preconstruction review:

a. Review of new sources to determinetheir effect on attainment and main-tenance of NAAQS;

b. Review of new sources for which newsource standards of performance havebeen established;

Ch. 6 Federal Land Planning and Environmental Laws . 171

c. Review of new sources in a nonattain-ment area, where the air does notsatisfy the NAAQS; and

d. Review of new sources in a nondegra-dation area, where the air is cleanerthan the NAAQS.

All four types of review take place in Alaska.The first three are discussed in this section.

Preconstruction Review for Effects onAttainment and Maintenance

EPA regulations require preconstructionreview of all new sources that might jeopard-ize the maintenance of primary and second-ary standards.26 As noted earlier, the Act re-quires that any SIP exhibit adequate Stateauthority to prevent the construction of asource that would interfere with the attain-ment or maintenance of an air quality stand-ard.

In Alaska, preconstruction review is ac-complished by means of a permit system.27 Apermit is required for any facility that iscapable of emitting 25 tons per year of sulfuroxides or particulate, or 100 tons per year ofnitrogen dioxide, carbon monoxide, or hydro-carbons; or any mercury retort; or any fuel-burning electric-generating facility of morethan 250 kilowatts capacity.

Before either building or modifying anysuch facility, a permit applicant must submitplans and specifications with the following in-formation: 28

1.

2.

3.

4.

5.

Two sets of blueprints;

Maps of the immediate vicinity;

An engineering report outlining methodsof operation, quantity and source of ma-terial processed, use and distribution ofprocessed materials; and a process flowdiagram indicating points of emission,including estimated quantities and typesof contaminants emitted;

A description of any air quality controldevice;

An evaluation of the effect on surround-ing ambient air; and

6. Plans for emission reduction during apollution alert.

A permit will not be granted unless it isshown that the source will not interfere withthe maintenance of any ambient air qualitystandard or violate any State air qualityregulation.

A second type of new source review relatesto so-called indirect sources of pollution.These are sources—like stadia, garages, air-ports, and highways—which attract mobilesources of pollution, mainly automobiles.Alaska has never adopted regulations for thereview of indirect sources.29 The 1977 amend-ments severely restricted the authority of theAdministrator to require such review.30 Whilea State may choose to undertake indirectsource review, the Administrator cannot re-quire any such plan or promulgate plans orregulations including such a program. Theonly exception is that the Administrator maypromulgate regulations for an indirect sourcereview of federally funded airports andhighways and federally owned and operatedindirect sources.

Preconstruction Review of Sources forWhich New Source Standards ofPerformance Have Been Established

A State must perform a different precon-struction review for that class of stationarysources for which standards of performancehave been established pursuant to section111 of the Act.31 Before these sources can bebuilt or modified, it must be shown that, in ad-dition to not interfering with the attainmentor maintenance of any standard, they alsomake use of the best available control tech-nology for reducing pollution.

To prevent States from attracting new in-dustry by offering “pollution havens, ” Con-gress excluded control of these major airpollution sources from State implementationand directed EPA to set national standards.These EPA standards cover such mining-related sources as coal preparation plants,smelters, and electric-generating plants. 32

Controversy related to mineral development


—

has centered on smelter and utility regula-tions, particularly because of the high cost ofinstalling pollution control equipment.

The 1977 amendments established a proc-ess by which the Administrator must, within4 years, promulgate standards for all othermajor stationary sources emitting pollutionthat may contribute significantly to air pollu-tion. 33 It is possible that these new standardscould include many other processes associ-ated with mineral extraction, refining, anduse.

Preconstruction Review inNonattainment Areas

There are many AQCRs in nonattainmentstatus with respect to one or more criteriapollutants (including two such instances inAlaska). For this reason, it would be imprac-tical to forbid all new development in non-attainment areas. On the other hand, it wouldbe both anomalous and economically discrim-inatory if complying areas were more re-stricted than nonattainment areas withrespect to new source construction—a condi-tion that may well have occurred in the re-cent past. The 1977 amendments added anew section to Title I of the Act that dealsspecifically with the problem of developmentin nonattainment areas.34

This section extends the deadlines formeeting NAAQS to 1982 and 1987. Nonattain-ment areas are granted this extension only ifthey develop SIPS that are somewhat moredetailed and constrained than those providedfor in section 110. The main features of sucha plan are:

1. A comprehensive, accurate current in-ventory of actual emissions from allsources;

2. A vehicle emission control inspectionand maintenance program (only if seek-ing 1987 extension);

3. An analysis of alternative sites, sizes,production processes, and environmen-tal control techniques for any proposednew source which demonstrates that

benefits significantly outweigh environ-mental and social costs (only if seeking1987 extension);

4. Planning procedures involving State, re-gional, and local officials; and

5. A special permit provision.

The permit provision allows new sourceconstruction only where:35

a.

b.

c.

By the time the facility commences op-erations, total emissions from it, ex-isting sources, and new minor sourceswill be less than the total emissionsfrom existing sources allowed underthe plan required by the section;

The source complies with the morestringent of the following:i. The most stringent emission limita-

tion required by any State for sucha source, or

ii. The most stringent emission limita-tion achieved in practice by such asource; and

The owner or operator of the sourcedemonstrates that all other major sta-tionary sources owned or operated byhim in the State are subject to emissionlimitations and are in compliance.

The purpose of this provision is to combinetechnology-forcing requirements with adher-ence to a meaningful compliance scheduleand to assure that the beneficiary of such apermit is not contributing to pollution else-where in the State. Failure to observe thestringent conditions of the implementationplan will result in the loss of both air pollutiongrants and Federal highway funds.36

Citizen Suits on Preconstruction Review

State permits for construction of new sta-tionary sources are subject to judicial reviewthrough citizens suits authorized by section304 of the Clean Air Act.37 Any citizen maychallenge, in Federal court, the issuance of aState permit for the construction of a newsource that will violate ambient air quality


standards. In order to prevail in the action,the plaintiff must show: (1) that the Statereview did not satisfy procedural require-ments, e.g., conducting a review before con-struction started; (2) that the preconstructionreview indicated that air quality violationswould occur, but the permit was grantedanyway; or (3) that the technical data (calcu-lations and dispersion models), on which theState relied in determining that no violationswould occur were incorrect.38 A citizen maynot sue for damages, but to enjoin an illegalact or to enforce an administrative authorityto carry out a statutorily mandated action (inlegal terms, a nondiscretionary duty).39

PREVENTION OF SIGNIFICANTDETERIORATION

The development of measures to preventthe significant deterioration of air quality inexisting clean air or nondegradation regionshas been a controversial chapter in the Fed-eral implementation of the Clean Air Act. InDecember 1974, the EPA issued final regu-lations to prevent the significant deteri-oration of air quality in areas cleaner thanthe NAAQS. These regulations were issuedas a result of a 1973 Supreme Court decision40

affirming lower court decisions that the Actintended not only that polluted air be upgraded to human health-related nationalstandards, but also that air in regions cleanerthan those standards should be protected.Under these regulations, the States were re-quired to classify areas that met or exceedednational primary or secondary standards as:Class I where only a very small annual incre-ment of degradation was allowed; Class IIwhere a moderate annual increment was al-lowed; or Class III where degradation to na-tional standards was permitted.

Opponents of the Court decision and thesignificant deterioration regulations arguedthat it was not the intent of Congress underthe Clean Air Act to address any areas wherenational primary and secondary standardsare being maintained. Advocates of industrialdevelopment, mining interests, and electrical

utilities charged that significant deteriora-tion regulations will unduly restrict the Na-tion’s continuing economic development.They argued that air pollution levels in ex-isting “clean” areas should be permitted toincrease to the national ambient air stand-ards.

The Clean Air Act Amendments of 1977 ex-panded the nondegradation program and gen-erally tightened the standards for preventionof significant deterioration. The goals of thenondegradation amendments are:41

1. To protect public health and welfare fromany actual or potential adverse effect,which in the Administrator’s judgment,may reasonably be anticipated to occurfrom air pollution or from exposures topollutants in other media, which pollu-tants originate as emissions to the ambientair, not withstanding attainment andmaintenance of all national ambient airquality standards;

Z. To preserve, protect, and enhance the airquality in national parks, national wilder-ness areas, national monuments, nationalseashores, and other areas of special na-tional or regional natural, recreational,scenic, or historic value;

3. To ensure that economic growth will occurin a manner consistent with the preserva-tion of existing clean air resources;

4. To assure that emissions from any sourcein any State will not interfere with anyportion of the applicable implementationplan to prevent significant deteriorationof air quality for any other State; and

5. To assure that any decision to permit in-creased air pollution in any area to whichthis section applies is made only aftercareful evaluation of all the consequencesof such a decision and after adequate pro-cedural opportunities for informed publicparticipation in the decisionmaking proc-ess.

The amendments further provide that all SIPSmust contain emissions limitations and othermeasures necessary to prevent the signif-icant deterioration of air quality in eachregion which, on the basis of available infor-mation, cannot be classified for ambient air

— — — — —

174 ● Analysis of Laws Governing Access Across federal Lands

quality levels of particulate or sulfur oxides;or which has ambient air quality levels aboveany national primary or secondary air qualitystandards (other than for sulfur oxides orparticulate matter); or for which there is in-sufficient information to be classified as notmeeting such national primary standards.42

All existing international parks, national wil-derness areas of over 5,000 acres, nationalmemorial parks of over 5,000 acres, and na-tional parks of over 6,000 acres were immedi-ately designated as Class I areas, and theirstatus cannot be changed. There are 158mandatory Class I areas,43 four of which arein Alaska: Mount McKinley National Park,1,939,493 acres; Bering Sea Wilderness,41,113 acres; Simeonoff Wilderness, 25,141acres; and Tuxedni Wilderness, 6,402 acres.Other areas previously designated as Class Iunder the EPA regulations promulgatedbefore the 1977 amendments were also imme-diately designated as Class 1.44 These areas,however, may be redesignated by the Statesunder procedures set forth in the Act. Allother areas, (identified under sections 107(d)(1)(D) or (E)) will be Class II and maybe redes-ignated as provided.

The amendments specify the maximum al-lowable increase in concentration for sulfuroxides and particulate matter (in microgramsper cubic meter) for each class. A ceiling wases tab l i shed 45 for other air pollutants. Themaximum allowable concentration in anynondegradation area must not exceed a con-centration for each pollutant for each periodof exposure, equal either to the concentrationpermitted under the national secondary am-bient air quality standard or to the concentra-tion permitted under the national primary airquality standard, whichever is lower.

The Governor of each State with an EPAapproved implementation plan may, afterholding public hearings, issue orders ex-cluding certain pollutants from being countedin determining compliance with nondegrada-tion standards. These excluded pollutant con-centrations include: stationary source emis-sions resulting from converting from the use

of natural gas or petroleum products underorders issued under provisions of the EnergySupply and Environmental Coordination Actof 1974 46 or from a natural gas curtailmentplan; particulate matter attributable to con-struction or other temporary emissions ac-tivities; and emissions from new sources out-side the United States. Such orders by StateGovernors become effective after submissionto and approval by the EPA Administrator.

The amendments also provide that, exceptfor lands within the boundaries of Indianreservations, a State may redesignate anyareas as Class I that it deems appropriate.Other Federal areas may be redesignatedonly as Class I or Class 11. These include:

a.

b.

Any national monument, national prim-itive area, national preserve, nationalrecreation area, national wild and sce-nic river, national wildlife refuge, ornational lakeshore exceeding 10,000acres in size;47 a n d

Any national park or wilderness areaexceeding 10,000 acres, and estab-lished after the enactment of the CleanAir Act Amendments of 1977.48

Most of the large blocks of Alaska Landsthat would be transferred into conservationunits by pending legislation could be redes-ignated by the State. They are not mandatoryClass I areas. They are now and will on trans-fer be Class II lands and they may not bedesignated as Class III under any condi-tions. They are not required to be designatedClass I.

Any other clean air areas may be redesig-nated as Class III if:49

1. The Governor specifically approves theredesignation after consultation with ap-propriate legislative representativesand with final approval of local govern-ment units representing a majority of theresidents of the area to be redesignated;

2. The redesignation will not raise or con-tribute to any pollutant level to exceedthe maximum allowable increment or


ceiling concentration permitted underclassification of any other area; and

3. Other procedural and substantive re-quirements for redesignation underState and Federal law are satisfied.

The Clean Air Act amendments set forthrequirements for State redesignation pro-cedures. Prior to redesignation of any area asClass I, II, or III, the State must:50

(i)

(ii)

Have an approved SIP;

Prepare a satisfactory description andanalysis of economic, social, health, en-vironmental, and energy effects of theproposed redesignation, and make suchanalysis available to the public;

(iii) Require redesignation authorities to re-view and examine the effects docu-ment;

(iv) Provide public notice and public hear-ings in areas to be redesignated andareas affected by redesignation;

(v) Provide that the plans of any new ormodified major emitting facility thatmay be permitted to be constructed oroperate under Class III designation on-ly, must be made available to the publicprior to the hearing and redesignationpursuant to regulations issued by theEPA; and

(vi) Before public notice and hearing, notifythe appropriate Federal land managerif a proposed redesignation includesany Federal lands, and allow adequateopportunity for comment and recom-mendations (not more than 60 days).The State must publish any inconsisten-cy between the redesignation and therecommendations of the Federal landmanager with the reasons for suchinconsistency.

The EPA Administrator may disapprove anyredesignation only if he finds, after publicnotice and hearing, that the procedural re-quirements were not satisfied.51

Preconstruction Permitting of MajorEmitting Facilities

Section 165 of the Clean Air Act,52 a samended, requires that any major emittingfacility in a nondegradation area on whichconstruction is started after the passage ofthe 1977 amendments must obtain a permit.The applicant must demonstrate that emis-sions from the new facility will not exceed orcontribute to air pollution in excess of themaximum allowable concentrations for anypollutant in any clean air area, more thanonce per year, nor exceed NAAQS or otherapplicable emission control standards issuedunder the Clean Air Act in any AQCR.53

The applicant for the proposed new facilitymust utilize the best available control tech-nology for each regulated pollutant eitheremitted or resulting from the facility. Ap-propriate monitoring procedures must be car-ried out to measure the impacts of emissionsin affected areas. The air quality impactsarising from any growth associated with sucha facility must also be analyzed. Permit ap-plications are to be granted or denied within1 year after the completed application hasbeen filed. A review must include the re-quired analysis, consultation with appropri-ate Federal officials, and public notice andhearing.

For Class I areas, the permit must have theapproval of the appropriate Federal landmanager. A permit will be issued if it hasbeen shown that the proposed emissions willnot adversely affect the air quality andrelated values of the Federal Class I area. Apermit may also be issued for an emittingfacil i ty that would exceed the maximumallowable increments if the Federal landmanager certifies that the emissions wouldhave no adverse impact on the values of theClass I area.

The permit applicant may request a var-iance from the State Governor if a Federalland manager refuses a certification that theemissions from a proposed facility will haveno adverse impact on the air quality and re-lated values of a Federal Class I area even


though the emissions would cause or contrib-ute to concentrations that exceed Class Imaximum allowable increments. The appli-cant must demonstrate, and the Governormust find, that the proposed facility cannotbe built without the variance, and that inFederal Class I mandatory areas, the vari-ance will not adversely affect the air qualityin the region. Before granting a variance, theGovernor must consider the Federal landmanager’s recommendations and obtain hisconcurrence. If the Governor recommends avariance for a Federal mandatory Class Iarea contrary to the recommendation of aFederal land manager, both the Governor’srecommendation and that of the Federal landmanager are to be transmitted promptly tothe President. The President may approve thevariance if he finds that it is in the nationalinterest. He must act in 90 days to either af-firm or deny the variance, and his decision isfinal and nonreviewable.54

Any facility operating under a variancemay exceed the maximum allowable incre-ment for sulfur oxides on not more than 18days per year, but those emissions may notexceed statutorily specified numerical lim-its. 55 The 1977 amendments set specific nu-merical maximum allowable increases forsulfur oxides and particulate matter. Pro-cedures for establishing regulations for otherpollutants are set forth in section 166(a) ofthe amended Clean Air Act.56

Within 2 years of enactment of the 1977amendments, EPA is to propose regulationsfor prevent ing s ign i f i cant de ter iora t ionresulting from nitrogen oxides, hydrocar-bons, carbon monoxide, and photochemicaloxidants. These regulations would not go intoeffect for 1 year. At the end of that year, arevision of SIPS would begin unless there iscongressional action to the contrary.

The Administrator is required to report toCongress if he finds that establishing and im-plementing regulations to prevent significantdeterioration caused by the criteria pol-lutants would present special difficulties orbe impractical. This report does not delay the

Administrator’s duty to proceed with the reg-ulations. The States may adopt strategiesother than increments if they accomplish thepurpose of maintaining air quality. The pro-posed EPA regulations will provide:

a. Specific numerical measures againstwhich permits may be tested;

b. A framework for stimulating improvedcontrol technology;

c. Protection of air quality and relatedvalues; and

d. Fulfillment of the goals set forth in thepurposes provision of the Act.

Regulations for new air quality standards areto be followed within 2 years by measures toprevent significant deterioration.57 The Statesand the EPA Administrator are authorized totake enforcement action to prevent the con-struction of any major emitting facility thatdoes not meet the permitting requirementsand that is proposed to be constructed in a“clean air” area not subject to an approvedimplementation plan.58

DUTIES OF THE FEDERAL LANDMANAGER

Federal land managers59 and the Federalofficial directly managing Federal lands havean “affirmative responsibility” to protect airquality and related values, such as visibility,for any Federal land in a Class I area.60 Underthe 1977 amendments to the Clean Air Act,Federal land managers are afforded an op-portunity to comment and make recommenda-tions on proposed State redesignations.61 Fed-eral land mangers and Federal officials withdirect responsibility for managing Federallands are notified by the EPA of any permitapplication for a major emitting facility thatmay affect Federal lands within a Class Iarea.62 The Federal land manager or officialmust notify the EPA Administrator if theemissions from the proposed facility wouldcause or contribute to a change in the airquality in the area and identify the potentialadverse impacts of such a change.63


A permit for a major emitting facility maybe denied if emissions would exceed the max-imum allowable increment for a Class I area,or would have an adverse impact on air quali-ty in the Federal Class I area even though themaximum a l lowable increase i s not ex -ceeded.64 If, however, the Federal land man-ager certifies that the facility would notadversely affect the air quality and relatedvalues of the Federal Class I area, a permitmay be issued despite the fact that the emis-sions may exceed the maximum allowable in-creases for sulfur oxides and particulates. 65

In such circumstances, the Clean Air ActAmendments specify alternative maximumallowable increases for these pollutants,which cannot be exceeded.66

The Federal land manager must review allnational monuments, primitive areas, and na-tional preserves and recommend appropriateareas for redesignation as Class I where airquality and related values are important at-tributes of the area.67 The Federal land man-ager shall report to Congress and the State in1 year, and shall consult with the State be-fore making such recommendation.

Under section 169A, the Department of theInterior must prepare an inventory of all

mandatory Class I areas where visibility is animportant value.68 The Secretary of the In-terior has found that visibility is an importantvalue in 156 of the 158 mandatory Class Iareas (the two exceptions are Bradwell Bay,Fla., and Rainbow Lake, Wis., both wilder-ness areas) .69 The inventory has been for-warded to the EPA administrator who willuse it in developing a report and recommen-dation to Congress.70 It will also be used forpromulgating regulations to meet the statu-tory goal of “prevention of any future andremedying of any existing, impairment of visi-bility in mandatory Federal Class I areas”71

resulting from manmade pollution.

By February 1980, the EPA Administratoris required to promulgate regulations to pre-vent future, and to remedy existing, impair-ments of visibility in mandatory Class I areas.The regulations shall provide guidelines tothe States and require revision of implemen-tation plans to include requirements for in-s ta l la t ion o f the bes t ava i lab le re t ro f i ttechnology on existing sources that are lessthan 15 years old.72 Any exemption from therequirement for retrofit technology requiresthe approval of the appropriate Federal landmanager. 73

FOOTNOTE REFERENCES FOR CLEAN AIR ACT

‘The Clean Air Act, 42 UiS.C. 74OI et seq. (redesig-nated from 42 U.S.C. 1857 et seq. ) includes the CleanAir Act of 1963, Public Law 88-206 (Dec. 17, 1963], andamendments made by the Motor Vehicle Air PollutionControl Act, Public Law 89-272 [Oct. 20, 1965), theClean Air Act Amendments of 1966, Public Law 89-675(Nov. 21, 1967), the Clean Air Act Amendments of 1970,Public Law 91-604 (Dec. 31, 1970), the ComprehensiveHealth Manpower Training Act of 1971, Public Law92-157 (Nov. 18, 1971), the Energy Supply and En-vironmental Coordination Act of 1974, Public Law93-319 (June 22, 1974), and the Clean Air Act Amend-ments of 1977, Public Law 95-95 (Aug. 7, 1977). The ma-jor components of the Clean Air Act are the Clean AirAct Amendments of 1970 and the Clean Air Act Amend-ments of 1977.

‘Section 108 of the Clean Air Act, as added by PublicLaw 91-604, section 48(a), 84 Stat. 1678, Dec. 31, 1970,directed the Administrator of EPA to publish a list of

pollutants which had an adverse effect on the publichealth and welfare and whose presence in the ambientair resulted from numerous or diverse mobile or sta-tionary sources. Criteria documents were preparedreflecting the latest scientific knowledge on the effectof five pollutants on the public health and welfare. Na-tional ambient air quality standards were developedfor six pollutants associated with the criteriapollutants. Sulfur oxides are measured by sulfur diox-ide, and photochemical oxidants are measured byozone and hydrocarbons.

3This discussion is limited to Title I, “Air PollutionControl and Prevention, ” and Title III, “Administra-tion,” of the Clean Air Act. The description of programsunder the Act does not include any authorized by TitleH,’’ Emissions Standards for Moving Sources. ”

4Public Law 93-319, 88 Stat. 246, June 22, 1974, 15U,S.C. 791-798.


5Environmental Quality-1976, Report of the Councilon Environmental Quality, p. 2.

‘U.S. Congress, House Subcommittee on Energy andPower, Middle- and Long-Term Energy Policies andAlternatives, Appendix, 94th Cong., 2d sess., March1976, at 4.

7Air QuaMy and Stationary Source Emission Control,A Report by the Commission on Natural Resources, Na-tional Academy of Sciences, prepared for the Commit-tee on Public Works, Serial No. 94-4, (March 1975), at5-195.

‘Sierra Club v. Ruckelshaus, 344 F. Supp. 253 (1972),aff’d per curiam, 4 ERC 1915 (D.C. Cir. 1972), aff’d subnom., Fri v. Sierra Club, 412 U.S. 541 (1973).

‘EPA’s PSD policy is set forth at 40 CFR 52.21 (1977).Some aspects of that policy have already been revisedto reflect the 1977 amendments, 43 F.R. 57459, Nov. 3,1977, and EPA has published proposed rules to reflectother changes made by the amendments, 42 F.R. 57471,57479, Nov. 3, 1977.

‘“Stationary source is defined as “any building, struc-ture, facility or installation which emits or may emitany air pollutant, ” section 11 l(a)(3), 42 U.S.C. 7411(a~3).

1lThe standards are set forth at 40 CFR 50.4-50,11.‘zThe boundaries of Alaska’s four air quality control

regions are set out at 40 CFR 81.54 (Cook Inlet” In-trastate AQCR); 40 CFR 81,246 (Northern Alaska In-trastate AQCR); 40 CFR 81,247 (South Central AlaskaIntrastate AQCR): and 40 CFR 81.248 (SoutheasternAlaska Intrastate AQCR).

13 Alaska Attainment Status, 40 CFR 81.302.14Arizona Attainment Status, 40 CFR 81.303; attain-

ment status for all areas may be found at 40 CFR Part81, Subpart C—Section 107 Attainment Status Designa-tions, 43 F.R. 8963, Mar, 3, 1978.

1S43 F,R. 8963, Mar. 3, 1978.’“42 U.S.C. 7410.1740 CFR 51,11,Iaprogress in the Prevention and Control of Air pO~~U-

tion in 1976, Annual Report of the U.S. EnvironmentalProtection Agency, (1977), p. 31.

1ePublic Law 95-95, sections 108(a)(3) and (a)(4),amending sections l10(a12)(D) and l10(aK2)(E), 42U.S.C. 7410( aX2)(D) and 7410( aX2)(E).

Z“Compliance with this provision will require achange in the existing permit provision of Alaska Law,18 A,A,C, 50.120.

ZISection 11O(C)(1), 42 U.S.C, 741 O(C)(1).zzsuch promulgations with respect to the Alaskan 1rn-

plementation Plan can be found at 40 CFR 52.70.234(’J CFR 52.02, 52.06.Z4EpA, however, has decided to exempt surface min-

ing operations, including haul roads, from mandatoryPSD review, 43 F.R. 26397, June 19, 1978. This decisionwas based on an EPA finding that particulate loadingsassociated with these sources consisted predominantlyof nonrespirable particles, EPA is in the process ofgathering information to determine whether or not torevise its overall Total Suspended Particulate (TSP)

standard to emphasize the risks to human health asso-ciated with smaller, respirable particulate. See EPA,Fugitive Dust Policy; SIP’s and New Source Review,Aug. 1, 1977. The EPA decision to exempt fugitive dustfrom suface mining operations and haul roads frommandatory PSD review has been challenged in court,

ZsThe 1977 amendments define, for the first time inthe statute, major sources, as follows:

(j) Except as otherwise expressly provided, theterms ‘major stationary source’ and ‘major emit-ting facility’ mean any stationary facility or sourceof air pollutants which directly emits, or has thepotential to emit, one hundred tons per year ormore of any air pollutant (including any majoremitting facility or source of fugitive emissions ofany such pollutant, as determined by rule by theAdministrator). Public Law 95-95, section 301(a),adding a new section 302(j) to the Act, 91 Stat,770.Throughout the Clean Air Act, requirements placed

on new major sources also apply to modifications andadditional construction of existing facilities which aremajor sources.

2’40 CFR 51.18.z’18 A.A.C. 50.120. The permit provisions also apply

to the operation of existing facilities.ZI’18 A.A.C. 50.120(f).2e40 CFR 52.78.30Public Law 95-95, section 108(e) adding a new sec-

tion l10(a~5) to the Act, 91 Stat. 695, 42 U.S.C. 7410(aX5).

31 Standards of performance may be found at 40 CFR60.

32 Section 111; 42 U.S.C. 1711.s’~blic Law g5-95, section 109(a) adding a new sec-

tion 11 l(f)(l) to the Act establishes this timetable, 91Stat, 697,42 U.S.C. 741 l(f)(l).

34Public Law 95-95, section 129,91 Stat, 745.#Section 173,42 U,S,C. 7503.‘eSection 176, 42 U.S.C. 7506”‘TNational Resources Defense Council, Land Use Con-

trols in the United States, A Citizens Handbook, 1976,pp. 44-45.

3aId. at 45.3gId. at 64.‘Sierra Club v. Ruckelshaus, 344 F. Supp. 253, (D.D.C.

1972), aff’d per curiam, 4ERC 1915 (D,C. Cir. 1972),aff’d by an equally divided court sub nom. Fri v. SierraClub, 412 U.S. 541, (1973).

‘lThe amendments on PSD are continued in SE?ChIl

127 of Public Law 95-95 which adds chapter C to Title Iof the Clean Air Act containing new sections 160 to 169,43 U.S.C. 7470-7479. The quoted language is in section160,43 U.S.C. 7470,

4Z~blic Law 95-95, section 127(a) adding a new sec-tion 161 to the Act, 91 Stat, 731,42 U.S.C. 7471.

43Mandatory Federal Class I areas are listed at 42F.R. 54760, NOV. 3, 1977.

The following list identifies those Federal landswhich are mandatory Class I areas established by the


1977 Clean Air Act Amendments. These lands may notbe redesignated. Total acreage is shown for each area.States in parentheses indicate interstate park or wil-derness areas; total acreage is listed for only one of theStates involved.

NATIONAL PARKS OVER 6,000 ACRESAlaska—Mount McKinley 1,939,493,Arizona—Grand Canyon 1,176,913; Petrified Forest

93,493.California—Kings Canyon 459,994; Lassen Volcanic

105,800; Redwood 27,792; Sequoia 286,643;Yosemite 759,172,

Colorado—Mesa Verde 51,488; Rocky Mountain263,138.

Florida—Everglades 1,397,429.Hawaii—Haleakala 27,208; Hawaii Volcanoes

217,029.Idaho—Yellowstone (Wyoming).Kentucky—Mammoth Cave 51,303.Maine—Acadia 37,503.Michigan—Isle Royale 542,428,Minnesota—Voyageurs 114,964,Montana—Glacier 1,012,599; Yellowstone (Wyo-

ming).New Mexico—Carlsbad Caverns 46,435.North Carolina—Great Smoky Mountains (Ten-

nessee).Oregon— Crater Lake 160,290.South Dakota—Wind Cave 28,060.Tennessee-Great Smoky Mountains 514,757.Texas—Big Bend 708,1 18; Guadalupe Mountains

76,292.Utah—Arches 65,098; Bryce Canyon 35,832: Can-

yonlands 337,570: Capitol Reef 221,896; Zion142,462.

Virgin Islands—Virgin Islands 12,295.Virginia— Shenandoah 190,535.Washington— Mount Rainier 235,239; North Cas-

cades 503,277; Olympic 892,578.Wyoming— Grand Teton 305,504; Yellowstone

2,219,737.

NATIONAL WILDERNESS AREAS OVER 5,000ACRES

Alabama—Sipsey 12,646,Alaska—Bering Sea 41,113; Simeonof 25,141: Tux-

edni 6,402.Arizona—Chiricahua National Monument 9,440;

Chiricahua 18,000; Galiuro 52,717; Mazatzal205,137; Mt. Baldy 6,975; Pine Mountain20,061; Saguaro 71,400; Sierra Ancha 20,850;Superstition 124,1 17; Sycamore Canyon 47,757.

Arkansas—Caney Creek 14,344; Upper Buffalo9,912.

California—Agua Tibia 15,934; Caribou 19,080;Cucamonga 9,022; Desolation 63,469; DomeLand 62,206; Emigrant 104,311; Hoover 47,916;Joshua Tree 492,690; John Muir 484,673; Kaiser22,500; Lava Beds 28,640; Marble Mountain

2 13,743; Minarets 109,484; Monkelumne50,400; Pinnacles 12,952; Point Reyes 25,370;San Gabriel 36,137; San Gorgonio 34,644; SanJacinto 20,564; San Rafael 142,722; SouthWarner 68,507; Thousand Lakes 15,695; Ven-tana 95,152; Yolla-Belly-Middle Eel 109,091.

Colorado—Black Canyon of the Gunnison 11,180;Eagles Nest 133,910; Flat Tops 235,230; GreatSand Dunes 33,450; La Garita 48,486; MaroonBells-Snowmass 71,060; Mt. Zirkel 72,472;Rawah 26,674; Weminuche 400,907; West Elk61,412.

Florida—Bradwell Bay 23,432; Chassahowitzka23,360; Saint Marks 17,746.

Georgia— Cohutta 33,776; Okefenokee 343,850; WolfIsland 5,126.

Idaho—Craters of the Moon 43,243; Hells Canyon(Oregon) 193,840; Sawtooth 216,383; Selway-Bitterroot (Montana) 1,240,618.

Louisiana—Breton 5,000.Maine—Moosehorn 7,501.Michigan—Seney 25,150.Minnesota—Boundary Waters Canoe Area 747,840.Missouri—Hercules-Glades 12,315; Mingo 8,000.Montana—Anaconda-Pintlar 157,803; Bob Marshall

950,000; Cabinet Mountains 94,272; Gates ofthe Mountain 28,562; Medicine Lake 11,366;Mission Mountains 73,877; Red Rock Lakes32,350; Scapegoat 239,295; Selway-Bitterroot-U.L, Bend 20,890.

Nevada—Jarbridge 64,667.New Hampshire—Great Gulf 5,552; Presidential

Range-Dry River 20,000.New Jersey—Brigantine 6,603.New Mexico-Bandelier 23,267; Bosque del Apache

30,850; Gila 433,690; Pecos 167,416; Salt Creek8,500; San Pedro Parks 41,132; Wheeler Peak6,027; White Mountain 31,171.

North Carolina—Joyce Kilmer-Slickrock 14,033; Lin-ville Gorge 7,575; Shining Rock 13,350; Swan-quarter 9,000.

North Dakota—Lostwood 5,577.Oklahoma—Wichita Mountain 8,900.Oregon—Diamond Peak 36,637; Eagle Cap 293,476;

Gearhart Mountain 18,709; Kalmiopsis 76,900;Mountain Lakes 23,071; Mount Hood 14,160;Mount Jefferson 100,208; Mount Washington46,116; Strawberry Mountain 33,003; ThreeSisters 199,902.

South Carolina—Cape Remain 28,000.South Dakota—Badlands 64,250.Tennessee-Joyce Kilmer-Slickrock (North Carolina),Vermont—Lye Brook 12,430.Virginia—James River Face 8,703.Washington— Alpine Lakes 303,508; Glacier Peak

464,258; Goat Rocks 82,680; Mount Adams32,356; Pasayten 505,524.

West Virginia—Dolly Sods 10,215; Otter Creek20,000.


Wisconsin—Rainbow Lake 6,338.Wyoming—Bridger 392,160; Fitzpatrick 191,103;

North Absaroka 35 I,104; Teton 557,311; Wash-akie 686,584.

INTERNATIONAL PARKSNew Brunswick, Canada—Roosevelt-Campobello

2,721.

NATIONAL MEMORIAL PARKSNorth Dakota—Theodore Roosevelt National Memo-

rial Park 69,675.

44public Law 95-95, section 127(a) adding a new Sec-tion 162(a) to the Act, 91 Stat. 731,42 U,S.C. 7472 (a).

4Wublic Law 95-95, section 127(a) adding a new sec-tion 163 to the Act, 91 Stat. 732,42 U.S.C. 7473.

4615 U.S. C. 792.4ppublic L8W 95-95, section 127(a) adding a new SeC-

tion 164(a)(l) to the Act, 91 Stat. 733, 42 U.S.C. 7474(a)(l).

4Bpublic Law 95-!35, section 127(a) adding a new SeC-tion 164(a)(2) to the Act, 91 Stat. 734, 42 U,S.C. 7474(a12).

4g~blic L8W 95-95, section 127(a) adding new Sec-tions 164(a)(2)(A), 164(a)(2)(B) and 164(a)(2)(C), 91 Stat.734, 42 U.S.C. 7474( aX2)(A), 7474( aX2)(B), and 7474(a)(2)(C).

Sopublic Law 95-95, section 127(a) adding a new sec-tion 164(b)(l) to the Act, 91 Stat. 734, 42 U.S.C. 7474(b)(l).

sl~blic Law 95-g5, section 127(a) adding a new sec-tion 164(b12) to the Act, 91 Stat. 735, 42 U.S.C. 7474(b)(2),

Szfiblic Law 95-95, section 127(a) adding a new sec-tion 165 to the Act, 91 Stat. 735,42 U.S.C. 7475.

53 Section 169 defines a major emitting facility for thepurposes of provisions relating to the prevention ofsignificant deterioration:

The term “major emitting facility” means any ofthe following: stationary sources of air pollutantswhich emit, or have the potential to emit, one hun-dred tons per year or more of any air pollutantfrom the following types of stationary sources:fossil-fuel fired steam electric plants of more thantwo hundred and fifty million British thermal unitsper hour heat input, coal-cleaning plants (thermaldryers), kraft pulp mills, Portland Cement plants,primary zinc smelters, iron and steel mill plants,primary aluminum ore reduction plants, primarycopper smelters, municipal incinerators capableof charging more than two hundred and fifty tonsof refuse per day, hydrofluoric, sulfuric, and nitricacid plants, coke oven batteries, sulfur recoveryplants, petroleum refineries lime plants, phos-phate rock processing plants, carbon black plants(furnace process), primary lead smelters, fuel con-version plants, sintering plants, secondary metalproduction facilities, chemical process plants,

fossil-fuel boilers of more than two hundred andfifty million British thermal units per hour heat in-put, petroleum storage and transfer facilities witha capacity exceeding three hundred thousand bar-rels, taconite ore-processing facilities, glass-fiberprocessing plants, charcoal production facilities.Such term also includes any other source with thepotential to emit two hundred and fifty tons peryear or more of any air pollutant. This term shallnot include new or modified facilities which arenonprofit health or education institutions whichhave been exempted by the State.

Public Law 95-95, section 127(a), 91 Stat. 740,42 U,S,C.7479(l),

54Public Law 95-95, section 127(a) adding a new sec-tion 165(d)(2)(D)(ii) to the Act, 91 Stat, 737, 42 U.S.C.7475( d12)(D)(ii).

ss~blic Law g5.g5, section 127(a) adding a new sec-tion 165(d)(2)(C)(iv) to the Act, 91 Stat. 737, 42 U.S.C.7475( d)(2)(c)(iv).

5Tublic Law 95-95, section 127(a) adding a new sec-tion 166(a) to the Act, 91 Stat. 739,42 U.S.C. 7476.

~Tfiblic Law g5-95, section 127(a) adding a new sec-tion 166(d) to the Act, 91 Stat, 739,42 U.S.C. 7476(d).

Sapublic Law g5-95, section 127(a) adding a new sec-tion 167 to the Act, 91 Stat. 740,42 U,S.C. 7477.

Sgpublic Law 95-95, section 301(a), adding a new sec-tion 302(i) to the Act which reads: The term ‘Federalland manager’ means, with respect to any lands in theUnited States, the Secretary of the Department with au-thority over such lands. 91 Stat. 770.42 U.S,C. 7602(i).

‘public Law 95-95, section 127(a) adding a new sec-tion 165(d)(2)(B) to the Act, 91 Stat. 736, 42 U.S.C. 7475(d)(2)(B).

‘*Public Law 95-95, section 127(a) adding a new sec-tion 164(b)(l)(B) to the Act, 91 Stat. 735, 42 U.S.C. 7474(b)(l)(B).

‘zPublic Law 95-95, section 127(a) adding a new sec-tion 165(d)(2)(A) to the Act, 91 Stat. 736, 42 U.S.C. 7475(d](2)(A].

eJ~blic Law 95-95, section 127(a) adding a new sec-tion 165(d)(2)(C) to the Act, 91 Stat. 737, 42 U.S.C. 7475(d)(2)(C).

“Public Law 95-95, section 127(a) adding a new sec-tion 165(d)(2)(C)(ii) to the Act, 91 Stat. 737, 42 U.S.C.7475( d)(2)(C)(ii).

8S~blic Law 95-g5, section 127(a) adding a new sec-tion 165(d)(2)(C)(iii) to the Act, 91 Stat. 737, 42 U.S.C.7475(d)(2)(C)(iii).

G’Public Law 95-95, section 127(a) adding a new sec-tion 164(d)(2)(C)(iv) to the Act, 91 Stat. 737, 42 U,S,C.7475(d)(2)(C)(iv).

‘7Public Law 95-95, section 127(a) adding a new sec-tion 164(d) to the Act, 91 Stat. 736,42 U.S.C. 7475(d].

‘Public Law 95-95, section 128(a), adding a new sec-tion 169 A(aX2) to the Act, 91 Stat. 742, 42 U.S.C. 7491(a).

@gFinal Identification of Mandatory Federal Class IAreas Where Visibility Is an Important Value, 43 F,R,7721, Feb. 21, 1978.


TOpublic Law 95-95, section 128(a) adding a new sec-tion 169 A(a~3) to the Act, 91 Stat. 742, 42 U.S.C. 7491(a~3).

71 Public Law 95-95, section 128[a) adding a new sec-tion 169 A(a~l) to the Act, 91 Stat. 742, 42 U,S.C. 7491(all).

72 Public Law 95-95, section 128(a) adding a new sec-tion 169A(b), 91 Stat. 743,42 U.S.C. 7491(b).

73Public Law 95-95, section 128(a) adding a new sec-tion 169A(c)(3), 91 Stat. 743,42 U.S.C. 7491(c)(3).


CLEAN WATER ACT

Federal concern with water pollutionabatement dates from the Rivers and Har-bors Act of 1899,1 which authorized the U.S.Army Corps of Engineers to issue permits forthe discharge of material into navigablewaterways if “anchorage and navigation willnot be injured thereby. ” It was not until theWater Quality Act of 1965, 2 however, thatCongress addressed the issue of water quali-ty. This Act required that States adopt andmeet water quality criteria (subject to Fed-eral approval) for interstate waters withintheir boundaries. In the absence of State ac-tion, the criteria would be set by the FederalGovernment, which would exercise abate-ment authority. This approach to pollutioncontrol has similarities to that taken by theClean Air Act. The standards relate to theresults of actions by many individual pollu-tion sources, but do not directly regulatethose sources.

The Federal Water Pollution Control ActAmendments of 19723 (FWPCA) substantiallyrestructured the Federal water pollution con-trol program. The purpose of the amendmentswas to control pollution at its source by re-quiring water polluters to limit the amount ofeffluent discharged into a body of water. TheAct establishes a permit system—the Nation-al Pollutant Discharge Elimination System(NPDES)—to oversee the installation of spe-cified levels of pollution abatement equip-ment for all point sources of pollution, re-gardless of the water quality of adjacentbodies of water. (A point source is one thatdischarges effluent through a conduit orpipe.) The water quality standard program isalso continued. More stringent effluent re-strictions may be imposed if the source emp-ties into a body of water that does not meetwater quality standards.

Some mining activities constitute pointsources of pollution that require NPDES per-mits. Effluent limitations and standards ofperformance have been established for cer-


tain mining activities. The Environmental Pro-tection Agency (EPA) will develop guidelinesfor other categories of mining operations inthe near future.4

Many mining operations and proceduresassociated with access to mineral sites, suchas roadbuilding and construction activities,are not point sources and do not requireNPDES permits. Areawide water treatmentmanagement programs administered byStates and other local units of Government,pursuant to section 208 of FWPCA, could po-tentially affect those mining development andoperation activities that are nonpoint sourcesof pollution. Because EPA originally limitedareawide plans to metropolitan areas, untilforced to extend them by court order,5 section208 has not as yet had any effect on miningactivities. State submission of water qualitymanagement plans was not required untilNovember 1, 1978.

Many activities related to mineral develop-ment such as processing, refining, and powergenerating may be directly affected by thepermit system. But, because implementationof FWPCA has been slow, it is difficult tojudge future impacts from experience duringits early years. In addition, the amendmentsintroduced by the Clean Water Act of 1977,6

make extrapolation difficult.

FEDERAL WATER POLLUTIONCONTROL ACT

The Federal Water Pollution Control ActAmendments of 1972 established a complexprogram to clean up the Nation’s waterways.Where previous legislation had concentratedon establishing broad water quality stand-ards, 7 FWPCA sought to place individualized,technological requirements on all polluters,and to upgrade these requirements until theultimate goal of zero pollution discharge intonavigable waters would be achieved.

Ch. 6 Federal Land Planning and Environmental Laws w 183

The stated objective of the Act is “torestore and maintain the chemical, physical,and biological integrity of the Nation’swaters. “a To achieve this objective, six na-tional goals and policies are set forth:9

1.

2.

3.

4.

5.

6.

The national goal that the discharge ofpollutants into navigable waters beeliminated by 1985;

The national goal that, wherever at-tainable, an interim goal of water quali-ty which provides for the propagation offish, shellfish, and wildlife; and providesfor recrea t ion in and on water , beachieved by July 1, 1983;

The national policy that discharge oftoxic pollutants in toxic amounts be pro-hibited;

The national policy that Federal finan-cial assistance be provided to constructpublicly owned waste treatment works;

The national policy that areawide wastetreatment planning processes be devel-oped and implemented to assure ade-quate control of sources of pollution ineach State; and

The national policy that a major re-search and demonstration effort bemade to develop the technology nec-essary to eliminate the discharge of pol-lutants into the navigable waters, thewaters of the contiguous zones, and theoceans.

FWPCA authorized Federal and Stateregulatory programs and a large constructiongrant program designed to meet a series ofdeadlines for improving water quality con-tained in the Act. The EPA and the ArmyCorps of Engineers have the primary Federalresponsibility for enforcement and implemen-tation. State cooperation and planning is alsoan essential component of the total effort.

Many of the water quality deadlines havenot been met. The Council on EnvironmentalQuality (CEQ) characterized progress underthe Act as follows :10

This period has been one of high expecta-tion and significant frustration. Water quali-ty has not improved as rapidly as we hadhoped, and there are still substantial delaysin fully implementing many sections of theAct.

Two different approaches to controllingsources of pollution are found in the Act .They arise from the fundamental distinction,both in legal and in practical terms, betweenpoint and nonpoint sources of pollution. Apoint source is any confined, discrete convey-ance such as a pipe, a ditch, or even a float-ing craft. ” Point sources release a collectedstream of pollutants through sewers, pipes,ditches, and other channels. Such streamscan be measured and regulated with someprecision. They provide a ready locus for theapplication of technology to control andpurify effluents. Nonpoint sources are sitesfrom which there is uncollected runoff, Agri-cultural areas, mining operations, and con-struction sites are typical examples of non-point sources. They present highly complexregulatory and technological difficulties, andare subject to less stringent legal controls.

The 1972 Act established the followingregulatory scheme to control pollution frompoint sources:

1.

2.

By July 1977, all dischargers other thanmunicipal sewage treatment plants musthave achieved the effluent limitationsbased on the “best practicable pollutioncontrol technology currently available”(BPT), and public treatment works musthave achieved limitations based on sec-ondary treatment .*2

B y J u l y 1 9 8 3 , nonmunicipal pointsources must have in operation the“best available technology economicallyachievable” (BAT), and municipal sew-age treatment plants must have installedthe “best practicable waste treatmenttechnology.” 13

3. Special effluentwater pollutantsvironmental andmust be met prior

standards for toxicbased solely on en-

safety considerationsto the 1977 deadline.14


4.

5.

It

New facilities and installations mustmeet standards of performance basedon the “best available demonstratedcontrol technology.“15

Special effluent restrictions, based onwater quality standards, must be usedwhenever it becomes apparent that theapplication of national standards willnot meet water quality targets in a givenbasin. 16

is estimated that the 1977 deadlineswere met by 90 percent of industrial pol-luters, but by only 40 percent of munic-ipalities. 17 The control of toxic pollutants wasless effective; EPA had failed to publish toxiceff luent guidelines and was under courtorder to develop regulations for 65 toxicpollutants. 18

The failure to meet the 1977 deadlines,coupled with new information about the ef-fects of less stringently regulated nonpointsources on water quality, raised questionsabout the requirement to implement strictBAT standards by 1983. The National Com-mission on Water Quality—established bysection 315 of FWPCA—issued a report thatrecommended extending the 1977 require-ment and postponing the 1983 goals and re-quirements for at least 5 years.19 Two otheraspects of the pollution control program—thesewage treatment construction grant pro-gram and the dredge and fill permit programadministered by the Corps of Engineers (the4041 program)—were also subjects of intensecriticism. These programs, along with theBPT and BAT requirements, were viewed asplacing unrealistic burdens on those sourcescovered by the Act.

Congress responded to many of these prob-lems with the Clean Water Act of 1977, 2 0

which significantly amended FWPCA. Theamended law further refines the existingregulatory scheme and places increased im-portance on the control of toxic effluents. Onthe whole, the 1977 amendments providedmidcourse corrections rather than majorchanges in goals or objectives.

PERMIT SYSTEM

Permits implement the various standardsfound in the Act and in regulations; they arealso used as enforcement devices. A permit,issued under section 402, which establishedthe National Pollutant Discharge EliminationSystem (NPDES), is required before any pollu-tant (other than dredge and fill materials cov-ered by section 4041) may be discharged froma point source into navigable waters.

A permit requires the discharger of pol-lutants to meet the applicable effluent limita-tions, technology standards, and water quali-ty goals. Permits are obtained through thelocal EPA office or from the State, if the latterhas qualified to take over the regulatory role.It is through the permit process that generalguidelines are transformed into individualabatement requirements. Cancellation of per-mits for noncompliance is one method of en-forcing the Act. Without a permit and theconcomitant right to discharge pollutants,many industrial operations cannot be carriedout.

EPA has identif ied nearly 65,000 dis-chargers subject to the NPDES. ThroughSeptember 1976, 52,723 permits had beenissued .21 Issuing permits on a case-by-casebasis often entails much negotiation. Theremust be an opportunity for a public hearingbefore a permit is issued. However, indi-vidual permits are not subject to the NationalEnvironmental Policy Act (NEPA) and the sub-mission of an environmental impact state-ment is not required.22

A permit will require that a dischargermeet whatever guidelines EPA has estab-lished for limiting effluents from industrialoperations of that general type. As will bediscussed in the next section, EPA has estab-lished industry-by-industry limitations thatspecify the maximum permissible dischargesof various pollutants associated with theprocesses used in those industries. But per-mits do not simply recapitulate EPA effluentguidelines; a discharger maybe subject to ad-ditional requirements to meet water quality


standards or to prevent degradation of ex-isting water quality.

Water Quality Standards andNondegradation

The Water Quality Act of 1965,23 requiredthe States to adopt water quality standardsfor interstate waters, for the first time. Sec-tion 303 of FWPCA continued those stand-ards; in addition, the States were required todevelop standards for intrastate waters.24 If aState should fail to establish adequate stand-ards for either category, EPA is authorized todo so in its stead. Periodically, the Statesmust review and revise their water qualitystandards. The following guidelines for Statereview and revision have been established bythe EPA:25

1. The States must review their waterquality standards every 3 years andrevise them where appropriate.

2. Water quality standards must protectthe public health and welfare, and pro-vide protection for downstream waterquality standards.

3. The States must upgrade existing waterquality standards where current waterquality supports higher uses than thosepresently designated.

4. The States must upgrade existing waterquality standards to achieve the Act’s1983 goal of fishable and swimmablewaters where attainable. Attainability isto be determined on the basis of en-vironmental, technological, social, eco-nomic, and institutional factors.

5. The States may downgrade existingwater quality standards only on demon-strating that:

● Existing standards are not attainablebecause of natural conditions (such asleaching from natural heavy-metaldeposits);

● Existing standards are not attainablebecause of irreversible man-inducedconditions (as when known methods

●

are incapable of restoring water tothe designated use); or

The application of existing standardswould - ‘have substantial ‘and wide-spread adverse economic and socialeffects (such as a marked increase inunemployment, not due to other fac-tors, over an extensive area, for morethan 1 year).

Before a State can issue a permit for dis-charging a pollutant under section 402 itmust have a program for review and revisionof water quality standards.26 Once a waterquality standard is established, a State mustidentify areas for which the 1977 effluent.limitations are not sufficiently stringent to im-plement the applicable water quality stand-a r d .27 For such areas, the State must deter-mine the total maximum daily load of a pollut-ant that is consistent with the applicablewater quality standard, This information isused to set more stringent permit require-ments.

The water quality standards form the basisof a program designed to prevent the degra-dation of presently clean waterways. The an-tidegradation policy has several importantelements. The regulations provide, withoutqualification, that “No further water qualitydegradation which would interfere with orbecome injurious to existing instream wateruses is allowable.” 28 Thus, if a particularbody of water in its existing condition couldbe used for sport fishing, it cannot be de-graded in any way that would reduce its suit-ability for this activity. Similarly, if a body ofwater is suitable for the propagation of fish,shellfish, or wildlife, for swimming, or fordrinking water supply, then it must remainsuitable for these and any other possible usesfor which it is now fit. This does not meanthat water quality may not deteriorate at all;small increases in pollutant loads may not beinconsistent with protecting a possible pres-ent use for a body of water.

With one exception, the regulations do notpermit any increase in pollutant loads inthose high-quality waters that currently ex-

ceed the levels needed to support recreationand the propagation of fish, shellfish, andwildlife in and on the water. That exceptionpermits a State to decide, after public partic-ipation, “to allow lower water quality as a

result of necessary and justifiable economicor social development.”29 It is qualified in tworespects. The exception cannot be applied atall to “high-quality waters which constitutean outstanding national resource, such as


Alaska’s rivers and streams are subject to rapid changes in depth, rate of flow, and sediment load due to natural conditions


waters of National and State parks and wild-life refuges, and waters of exceptional rec-reational or ecological significance, ”30 and itcannot be applied in any way that allowswater quality to fall below the levels neededto protect fish, wildlife, and recreation in andon the waters. These provisions of the anti-degradation policy protect waters not onlyfrom industrial expansions and sewage treat-ment plants, but also from commercial, agri-cultural, construction, and forestry sources.

The EPA regulations provided for imple-mentation of the national nondegradation pol-icy in three stages:

●

●

●

By April 26, 1976, each State was re-quired to have developed and submittedto EPA for approval a “State continuingplanning process” containing a schedulefor the development and adoption of astatewide policy on antidegradation.

Between April and December 1976, eachState was required, after public hear-ings, to adopt the new statewide policyon antidegradation. This policy had to besubmitted to EPA for approval and to beat least as protective as the nationalpolicy.

By July 1, 1977, the new statewide anti-degradation policy had to go into effect.After that date, all proposed activities,which would increase water pollution,have to be screened for consistency withFederal-State antidegradation require-ments.

State Permit Programs

A State may assume NPDES responsibil-ities—28 have already done so31—if, in addi-tion to having developed a continuing plan-ning process (pursuant to section 303 (e)), ithas the authority to do the following:32

1. Issue permits, for a period not exceeding5 years, to ensure compliance with ef-fluent limitations, water quality stand-ards, standards of performance, toxicand pretreatment standards, and oceandischarge criteria;

2. Undertake inspections and monitoring;

3. Ensure that notice of permits is given tothe public, the Administrator, and otheraffected States;

4. Reduce permit violations by enforcingcivil or criminal penalties; and

5. Ensure that adequate notice is given ofall materials introduced into publiclyowned treatment works.

Even when a State has assumed the admin-istration of the NPDES, the EPA Administra-tor may object to the issuance of any par-ticular permit and prevent it from going intoeffect. 33 He also has the authority to with-draw approval of a State permit program ifthe State’s administration of the programfails to meet the requirements of section402.34

Certification for Federal Licenses

Before the granting of a Federal license orpermit to conduct an activity that involves thedischarge of pollutants into navigable waters,the applicant must present the certificationrequired by section 401.35 The certificate is tobe issued by the State in which the dischargeoriginates, if that State administers theNPDES, if it does not, then the certificationmust be given by EPA. A certificate mustshow that the activity for which a Federallicense or permit is sought will comply withall applicable effluent limitations, waterquality standards, pretreatment and toxic ef-fluent restrictions, and standards of per-formance.36

EFFLUENT LIMITATIONS

The Clean Water Act, unlike its predeces-sors, focuses on the operations of the polluterand not just on the resultant water quality.Specific limits on effluents are prescribedand must be adhered to by individual pol-luters. These limitations are enforced by theNPDES permit program administered byeither the EPA or a State. No discharge of anypollutant from a point source is allowed un-less a permit has been granted.37 Such per-


mits must contain schedules of compliancewhich guarantee that the applicable effluentlimitations will be met.

The limitation of effluents is essential forimplementing the Act and attaining waterquality goals:38

The term, ‘effluent limitation, ’ means anyrestriction established by a State or by theAdministrator on quantities, rates, and con-centrations of chemical, physical, biological,and other constituents which are dischargedfrom point sources into navigable waters, thewaters of the contiguous zone, or the ocean,including schedules of compliance,

In practice, effluent limitations are devel-oped by EPA on an industry-by-industrybasis. Prior to the 1977 amendments, theydefined the pollution loads allowable underthe 1977 standard of “best practicable tech-nology” and the 1983 standard of “bestavailable technology economically achiev-able. ” These guidelines will be revised tomeet the 1984 standards discussed below,and new tests added for the different classesof regulated pollutants.

Point Sources

The Act establishes four major classes ofpollutant sources, each of which is subject todifferent standards and deadlines, and isregulated by different Federal and Stateagencies. The four classes are: (1) industrialpoint sources, (2) municipal point sources, (3)nonpoint sources, and (4) dredge and fillmaterials. A point source is defined in the Actas follows:39 “The term point source meansany discernible, confined and discrete con-veyance, including but not limited to any pipe,ditch, channel, tunnel, conduit, well, discretefissure, container, rolling stock, concentratedanimal feeding operation, or vessel or otherfloating craft, from which pollutants could bedischarged. ” Return flows from irrigatedagriculture are specifically excluded fromthe definition of point source,

Point sources, which are usually asso-ciated with industry and sewage treatmentplants, tend to be responsible for local pollu-

tion, particularly from toxic effluents. Themajor thrust of the Act is aimed at controllingpoint sources that discharge from discern-ible, confined, and discrete conveyances.

Nonpoint sources, which account for thebulk of conventional pollutants affectingwater quality, include surface runoff from ur-ban and agricultural sources, the entry of airpollutants into waterways through dry fall-out, and precipitation and soil runoff-in-cluding runoff from mining and constructionactivities.

Under the Act, point and nonpoint sourcesare subject to different treatment. Pointsources are regulated by a permit programbased on uniform technology-based stand-ards that is designed to reduce sharply pre-vious pollution. Nonpoint sources, on theother hand, are not regulated by such specificFederal standards. This is primarily becausedischarges from these sources are diffuse,difficult to monitor, and dependent on un-controllable cl imatic events (as well asgeographic and geologic conditions), and maydiffer greatly from place to place.

Industrial point sources include all pointsources other than publicly owned treatmentworks. Under FWPCA, the effluent limita-tions required that industrial point sourcesapply the BPT as determined by EPA, beforeJuly 1, 1977, and the BAT by July 1, 1983.

The 1977 amendments made several im-portant changes in this procedure. The July1977 BPT deadline has been extended untilApril 1, 1979, for those operators of pointsources who demonstrated a good faith effortto achieve compliance.40 The BAT standardsand deadline have both undergone a completerevision. Pollution from industrial pointsources is now divided into three classes—toxic, conventional, and nonconventional.Each of these is treated differently.

The Act defines toxic pollutants as:41

The term ‘toxic pollutant’ means thosepollutants, or combinations of pollutants, in-cluding disease-causing agents, which afterdischarge and upon exposure, ingestion, in-


halation or assimilation into any organism,either directly from the environment or in-directly by ingestion through food chains,will, on the basis of information available tothe Administrator, cause death, disease, be-havioral abnormalities,mutations, physiologicaleluding malfunctions inphysical deformations, intheir offspring.

Sixty-five named toxic poll

cancer, geneticmalfunctions (in-reproduction), or

such organisms or

utants, which wereoriginally the subjects of an out-of-court set-tlement against EPA, must meet the BATstandards by July 1, 1984.42 Additional toxicpollutants, which are not on this list, mustmeet BAT standards within 3 years after ef-fluent limitations are established.43

The “conventional pollutants” include butare not limited to “biological oxygen demand-ing, suspended solids, fecal coliform, andpH.”44 They are subject to effluent limitationsthat require the application of the “best con-ventional control technology” by July 1, 1984.This new standard takes into account anumber of factors that were not considered indeveloping the BAT standards. These are:45

Factors relating to the assessment of bestconventional pollutant control technology (in-cluding measures and practices] shall in-clude consideration of the reasonableness ofthe relationship between the costs of attain-ing a reduction in effluents and the effluentreduction benefits derived, and the compar-ison of the cost and level of reduction of suchpollutants from the discharge from publiclyowned treatment works to the cost and levelof reduction of such pollutants from a classor category of industrial sources, and shalltake into account the age of equipment andfacilities involved, the process employed, theengineering aspects of the application ofvarious types of control techniques, processchanges, nonwater quality environmental im-pact (including energy requirements), andsuch other factors as the Administratordeems appropriate.

The Conference Report on the Clean WaterAct of 1977 indicates that this standard is in-tended to be less stringent than the BATstandard in some, if not most, cases:46

The cost test for conventional pollutantsis a new test. It is expected to result in a de-termination of reasonableness, which couldbe somewhat more than best practicabletechnology or could be somewhat less thanbest available technology for other than con-ventional pollutants. The result of the costtest could be a 1984 requirement which is nomore than that which would result from bestpracticable technology but also could resultin effluent reductions equal to that requiredin the application of the best availabletechnology.

Nonconventional pollutants—those classi-fied as neither toxic nor conventional—willbe subject to the BAT standard requirementsno later than July 1, 1987.47 However , the1977 amendments provide for a waiver ormodification of such requirements for thenonconventional pollutants where the follow-ing conditions are met:48

1.

2.

3.

4.

The State concurs in the waiver.

The requirements are, at a minimum, asstringent as the BPT standard or anyspecial July 1977 limitations for meetingwater quality standards.

No other point or nonpoint source willface additional cleanup requirementsdue to the waiver.

The waiver will not interfere with meet-ing the 1983 goal of protected publicwater supplies and fishable and swim-mable waters.

The waiver provision appears to reflect thejudgment that the nonconventional pollutantsare less likely than other pollutants to pose aserious threat to water quality. The toxicpollutants present a more immediate dangerto any humans, fish, or wildlife that come incontact with a body of water containing oneor more of these substances. The conven-tional pollutants, which produce their effectsover a longer time period, can cause eutrophi-cation, odor, nonpotability, and a decreasedability to support plant and animal life, Athird type of pollutant, heat or thermal pollu-tion, which is regulated under the WaterQuality Act of 1965 and section 303 of

Ch. 6 Federal Land Planning and Environment/ Laws ● 191

FWPCA, can also have deleterious effects onplant, fish, and wildlife.

New Source and Pretreatment Standards

The Act imposes additional requirementson two important types of industrial pointsources: newly constructed sources andsources that discharge into publicly ownedtreatment works. Section 30649 of the Act re-quires the Administrator to establish stand-ards of performance for newly constructedsources of pollution and specifies 27 cat-egories of sources for which standards willbe developed.50 These include steam electricpowerplants and factories for the manufac-ture of nonferrous metals, phosphate, andferroalloys. EPA may add other categorieswhere appropriate.

New source standards of performance ap-ply the following requirements :51

Standard of performance means a stand-ard for the control of the discharge ofpollutants which reflects the greatest degreeof effluent reduction which the Admin-istrator determines to be achievable throughapplication of the best available demon-strated control technology, processes, op-erating methods, or other alternatives, in-cluding, where practicable, a standard per-mitting no discharge of pollutants.

In practice, standards of performance haveoften been equivalent to the 1983 BAT limita-tions developed for existing industries.52 Anynewly constructed source which complieswith an applicable standard of performanceis not subjected to more stringent standardsduring the first 10 years of its operation.53

Pretreatment standards are designed tolimit the introduction into publicly ownedtreatment works of those pollutants that can-not be treated by them.54 Publicly ownedtreatment works—which are also regulatedby the Act—must meet standards that re-quire the removal of specified pollutants. Thepretreatment standards ensure that pol-lutants such as toxic effluents, which cannotbe processed, are not fed to them. The 1977Act allows the pretreatment requirements to

be waived where the treatment works thatfurther processes the discharge from an in-dustrial point source is able to removepollutants covered by the pretreatmentstandards .55

MUNICIPAL POINT SOURCES

Municipal sewage systems and treatmentplants are both affected by regulatory andconstruction grant programs established bythe Act. Municipal waste waters includewastes from homes and commercial estab-lishments tied into sewage systems, some in-dustrial wastes that are also tied in, and theground water and runoff from precipitationthat enters combined sewage and drainagesystems. Municipal sewage treatment plantsare usually designed to remove suspendedsolids and normal organic wastes, and toreduce the basic oxygen demand (BOD).There are two traditional types of municipalsewage treatment—primary and secondary:56

In primary sewage treatment, suspendedsolids are allowed to settle. About 60 percentof the suspended solids is normally removedin this process, which also removes about 30percent of BOD. Secondary treatment is a mi-crobiological digestion process. This processenhances the BOD reduction to 85 percent ormore and the solids removal to 90 percent ormore. Both primary and secondary treatmentreduce the BOD in waste water before dis-charge by removing organic matter.

The 1972 Act required all municipal pointsources to utilize secondary treatment by July1977, and to use the “best practicable wastetreatment technology over the life of theworks” no later than July 1, 1983. To facil-itate the large construction and modificationsprogram required to meet these goals, Title IIof FWPCA established an $18 billion con-struction grant program for municipalitiesseeking to upgrade the quality of publiclyowned treatment facilities.

Mining operations are not directly affectedby sewage treatment regulations. But re-quirements for municipal waste treatment


could have an impact on the potential for min-eral development. Mine development mayoften lead to the creation of new communitiesor the expansion of existing ones beyond thecapacity of their sewage facilities. Taxes,zoning, and land use plans will reflect this.

To qualify for receipt of constructiongrants, every State or local governmental unitor authority that is responsible for waste dis-posal is required to develop areawide wastetreatment plans and practices. Section 20857

provides for the identification of areas withsubstantial water-quality control problemsand for the creation of management and plan-ning agencies in each of these identifiedareas. In other areas (generally rural areas),the State must act as a planning and manage-ment agent. The planning agencies, which arefunded by Federal grants, are required to putinto operation a “continuing areawide wastetreatment management planning process. ”This process must include:58

1. Management programs that are capableof meeting the sewage treatment needsof the area over a 20-year period;

2. A regulatory program to control the lo-cation, modification, and construction offacilities that discharge water pollu-tants; and

3. Programs—including land use require-ments—to control such nonpoint sourcesof pollution as agriculture, mining, andconstruction.

Plans under section 208 must have been sub-mitted to EPA by November 1, 1978. Stateagencies that undertake planning and anylocal agency designated after 1975 must sub-mit section 208 plans within 3 years of firstreceiving a planning grant.

Section 208 planning has taken longer toimplement than was originally foreseen in1972 because of delays in the entire munic-ipal waste control program. The delays werecaused, in part, by the Presidential impound-ment of construction grant funds, and in partby EPA’s failure to obligate the funds whenthey were made available. In response to the

delays, the Clean Water Act provided exten-sions of the 1977 secondary treatment re-quirements for any municipal treatment plantwhere construction has not been completedor where Federal funds have been held up.59

The extension may last until July 1, 1983, pro-vided that the treatment works will complywith the 1983 best practicable waste treat-ment standard. In addition, industrial pointsources, that had planned to meet 1977standards by discharging into municipaltreatment works are granted an extension forthe same time period for which the treatmentworks receives its extension.

Nonpoint Sources

Quantities of pollutants reach rivers andstreams without ever flowing through pipes,sewage plants, or outfall structures. Non-point sources of water pollution—includingrunoff from such diffuse sources as urban,agricultural, silvicultural, mining, and con-struction activities-have increased signif-icantly over the past several years. As an in-dication of the extent of this problem, it hasbeen estimated that:60

1.

2.

3<

4.

Storm-generated discharges account forbetween 40 and 80 percent of the annualtotal of oxygen-demanding materials;

Practically the entire 97 percent of theNation’s areas in rural land is a poten-tial nonpoint source of pollution; over400 million acres are in cropland, whichdelivers 2 billion tons of sediment an-nually to streams and lakes;

Animal wastes of livestock alone areestimated at 2 billion tons, equivalent to10 times that produced by humans; and

Total phosphorus emissions from non-point sources have been estimated at800,000 tons per year.

Nonpoint sources are regulated at theState and local levels by means of section 208waste treatment management plans. The Actstates that a 208 plan must include:61


A process to (i) identify, if appropriate,mine-related sources of pollution includingnew, current, and abandoned surface andunderground mine runoff, and (ii) set forthprocedures and methods (including land userequirements) to control, to the extent feasi-ble, such sources.

Another relevant provision of section 208 re-quires similar treatment of construction ac-tivity related sources of pollution.62

It is uncertain, at present, what effect non-point source controls will have on mineral ac-cess. Many areas have not as yet submittedsection 208 plans. The guidelines prepared bythe EPA have focused mainly on urban prob-lems.

The 1977 amendments include a provision63

that allows EPA to develop regulations pre-scribing “best management practice” to con-trol the nonpoint discharge of toxic and haz-ardous materials associated with industrialmanufacturing or treatment processes. Noregulations have yet been issued under thissection. The Conference Report indicates thatthe intent of the provision “is to control run-off of toxic and hazardous materials from in-dustrial sites resulting from poor housekeep-ing procedures. "64 Mining operations could besubject to regulations under this provision.

Dredge and Fill Operations

The Army Corps of Engineers was firstgiven regulatory authority over the disposalof dredge and fill material into navigablewaters by the Rivers and Harbors Act of1899. 65 Section 404 of FWPCA continued thatauthority and provides that the Secretary ofthe Army, acting through the Chief of Engi-neers, may issue permits, after notice and op-portunity for public hearings for the dis-charge of dredged and filled materials intothe navigable waters at specified disposalsites.66

Permits issued by the Corps of Engineersfor dredge and fill materials require thatoperations under the permit comply both withany effluent limitations and with water quali-ty standards.67 Permits for actions that sig-

nificantly affect the environment are subjectto NEPA; therefore, the Corps must preparean environmental impact statement before is-suing a permit.

When the Act was passed, the Corps inter-preted its jurisdiction to mean those watersthat had traditionally (since 1899) been clas-sified as “navigable.” For this reason, theCorps did not assume Federal regulatory ju-risdiction over extensive amounts of wetlandsthroughout the country.

On March 27, 1975, as a result of a suit(Natural Resources Defense Council v. Cal-laway), 68 the Corps was ordered to expand itsregulations beyond its traditional definitionof navigability. Regulations published on July25, 1975, established a three-phase imple-mentation schedule for the Corps’ expandedjurisdiction over the dredge and fill permitprogram. 69 Phase I, which went into effect inJuly 1975, required permits for discharges ofdredge and fill into traditional navigablewaters and their adjacent wetlands. Phase II,which took effect in September 1976, ex-panded the Corps’ jurisdiction to include pri-mary tributaries of traditionally navigablewaterways, natural lakes greater than 5acres in surface area and their adjacent wet-lands. Finally, Phase III, which took effect inJuly 1977, included all waters up to the head-waiters where the stream flow is less than 5cubic feet per second.

The expansion of the definition of nav-igable waters raised the possibility that manyhitherto unregulated activities, as well as ac-tivities with little potential effect on waterquality, would require +104 permits. Par-ticular concern was expressed for conven-tional farming, ranching, maintenance, andconstruction activities. The 1977 amend-ments significantly altered the scope of ac-tivities subject to permit requirement. Thefollowing activities were exempted:70

1. Normal farming, silviculture, and ranch-ing;

2. Maintenance of dikes, dams, levees, andtransportation structures;


3.

4.

5.

Construction of farm or stock ponds andmaintenance of drainage ditches;

Temporary sedimentation basins on aconstruction site; and

Farm roads, forest roads, and tempo-rary roads for moving mining equipmentconstructed in accordance with bestmanagement practices.

These exemptions apply only if the activitydoes not bring an area of navigable watersinto a use to which it was not previously sub-ject, or does not impair the flow or circulationof navigable waters, or does not reduce thereach of such waters .71

The 1977 amendments also allow the is-suance of general permits for any category ofactivities that involve the discharge of dredgeand fill materials.72 General permits can begranted for a category of activities which theSecretary of the Army determines are similarin nature, cause only minimal adverse envi-ronmental effects when carried out sep-arately, and will have only minimal cumula-tive adverse effects on the environment. Nogeneral permit may last longer than 5 years.

The 1977 amendments also provide for theState to administer both individual and gen-eral dredge and fill permit programs inphases II and 111 waters after approval of theprogram by the Administrator.73 The State’sauthority for the program’s approval is essen-tially the same one it must have to administera 402 permit program.

Dredge and fill operations often accom-pany roadbuilding or construction, partic-ularly near the coast, in wetlands, and inareas with many streams and lakes. Althoughtemporary roads for moving mining equip-ment do not require permits, other accessroutes do. Where such operations are part ofa project that would have a significant impacton the environment, the Corps must preparean impact statement before issuing a permit.

Effluent Limits on Mining Activities

By regulation, EPA has established effluentlimitations for some mining activities. The

regulations are found in 40 CFR Part 436,“Mineral mining and processing point sourcecategory, ” and 40 CFR Part 440, “Ore miningand dressing point source category. ” Theseexisting regulations are narrow in scope. Asof June 1978, no standards of performance,pretreatment standards or effluent limita-tions reflecting the best available technologyhad been established for any mining activity.Those BPT standards that have been estab-lished cover only a small number of dis-charged pollutants. However, for a number ofmining activities, EPA has established a nodischarge limit.

The regulation with the broadest effect isundoubtedly 40 CFR Part 440, Subpart B,“Base and precious metals subcategory, ”which applies to:74

a.

b.

c.

d.

e.

f.

Nonplacer mines operated to obtaincopper-bearing ores, lead-bearing ores,zinc-bearing ores, gold-bearing ores, orsilver-bearing ores;

Mills that employ the froth-flotationprocess for beneficiation of copperores, lead ores, zinc ores, gold ores, orsilver ores;

Mines and mills that use dump, heap, insitu leach, or vat-leach processes forthe extraction of copper;

Mills that extract gold or silver by thecyanidation process;

Mills that extract gold or silver by theamalgamation process; and

Mines or mine and mill complexesbeneficiating gold ores, silver ores, tinores, or platinum ores by gravity sep-aration, including placer or dredgemining.

BPT standards are established for totalsuspended solids and pH for all categories(except for cyanidation process mills anddump, heap, in situ leach, or vat-leach proc-esses for which no discharge is allowed) .75BPT limits are also placed on discharges ofcopper, zinc, lead, cadmium, and cyanidefrom regulated mines and mills.76


Other subparts of 40 CFR Part 440 estab-lish BPT effluent limitations for iron ore,77

bauxite,78 ferroalloys, 79 uranium, radium,vanadium, 80 mercury 81 and titanium.82 Eachestablishes limits on the discharge of sus-pended solids (in almost every case no morethan 30 milligrams per liter) and pH (an al-lowable range between 6.0 and 9.0), as wellas limits on concentrations of various metalsin water discharges. For iron ore, limits areset on iron.83 For the bauxite subcategory, lim-its are set on discharges of iron, lead, andzinc.84 For the ferroalloy subcategory, limitsare set for cadmium, copper, zinc, lead, ar-senic, and ammonia discharges.85 In the ura-nium, radium, and vanadium subcategory,guidelines are established for cadmium, zinc,arsenic, radium-226, and uranium.86 The mer-cury ore subcategory establishes limits fordischarge of mercury and nickel.87 While thetitanium subcategory contains limits on dis-charges of iron, zinc, and nickel.88 In five in-stances, the regulations permit no dischargefrom certain types of facilities: iron ore millsemploying magnetic or physical methods tobeneficiate ore;89 mines and mills that usedump, heap, in situ leach, or vat-leach meth-ods to extract copper;90 mills that extract goldor silver by cyanidation;91 mills using acid oralkaline leach for extraction of uranium,radium, or vanadium;92 and mills ben-eficiating mercury by gravity separation orfroth-flotation. 93

FOOTNOTE REFERENCES

‘Act of March 3, 1899, section. 13, 30 Stat. 1152, 33U.s.c. 407.

‘Water Quality Act of 1965, Public Law 89-234, 79Stat. 903.

3Public Law 92-500, 86 Stat. 816.4EPA effluent limitations that affect mining point

sources are found at 40 CFR 436, “Mineral mining andprocessing point source category,” and 40 CFR Part44o. “Ore mining and dressing point source category. ”The latter chapter covers copper, lead, zinc, gold,silver, bauxite, uranium, radium, vanadium, mercury,and titanium. The former chapter presently coversbarite, fluorspar, borax, potash, phosphate, sulfur,

40 CFR Part 436, “Mineral mining andprocessing point source category” estab-lishes effluent limitations for the class ofmaterials generally known, as industrial min-erals. 94 Most industrial minerals are proc-essed at or near the mine site. Processing caninclude slurry transport of ores or interme-diate product. Mine dewatering is often asso-ciated with mining and processing of buildingmaterials.

Effluent limitations in Part 436 focus onprocess-generated waste water, rather thanon discharges from mining operations per se.The term process-generated waste water isdefined as “any waste water resulting fromthe transport of ore or intermediate product,air emissions control, or processing exclusiveof mining.”95 A zero discharge level for proc-ess-generated waste water pollutants is es-tablished for the following mineral cat-egories: crushed stone, construction sand andgravel, gypsum, asphaltic minerals, asbestosand wollastonite, barite, fluorspar, borax,potash, sodium sulfate, frasch sulfur, ben-tonite, magnesite, diatomite, jade, and novac-ulite. 96 Allowable pollutant discharge levelshave been established for process wastewater and mine dewatering operations for:crushed stone (dewatering only), constructionsand and gravel (dewatering only), industrialsand, phosphate rock, and graphite.97

FOR CLEAN WATER ACT

bentonite, magnesite, diatomite, novaculite, tripoli, andgraphite; guidelines are planned for trona, lithium,kyanite, aplite, kaolin, feldspar, talc, and garnet. Forthe most part, these chapters now contain only 1977BPT standards for the regulated sources.

5NaturaI Resource Defense Council v. Train, 396 F.!hpp. 1386 (D.D.C, 1975).

‘Public Law 95-217, 91 Stat, 1566, 33 U.S.C. 1251 etseq.

7See 33 U.S.C. 1160(c), these standards are continuedby section 303 of FWPCA, 33 U.S.C. 1313.

Osection lol[a), 33 U.S.C. 1251(a).‘Section IOl(a~l)-(6), 33 U.S.C. 1251( a)(l)<6).


‘OEnvironmenta~ Quality—1976, the Seventh AnnualReport of the Council on Environmental Quality, 4 (1976)hereafter Environment—1976.

‘lSection 502{14), 33 U.S,C. 1362(14).‘zSection 301(b)(l), 33 U.S,C. 1o11.‘3Section 301(b)(2), 33 U.S.C, 131 l(b)(2).“Section 307(a), 33 U.S.C. 1317(a).‘sSection 306,33 U.S.C. 1316.‘eSections 301(b)(l) and 303(d), 33 U.S.C. 1311(b)(l)

and 33 U.S.C. 1313(d).‘environmental Protection Affairs of the 94th Con-

gress, p. 97$

1eEnvironment—1976, pp. 16-17, 256-261.19Report to the Congress by the National Commission

on Water Quality, Mar. 18, 1976, pp. 7-10,z“~blic Law gwlp, 91 Stat. 1566, Dec. 27, 1977.

Amends section 518 of FWPCA to provide that the Actmay be cited as “The Federal Water Pollution ControlAct” (commonly referred to as the Clean Water Act).Section 2,91 Stat 1566.

Z~EnvironmentaJ Quality—1977, Eighth Annua~ Reportoj the Council on Environmental Quality (1977) (here-after Environment— 1977).

zzIdo

23Public Law 89-234, 79 Stat. 903.Z’Section 303(a~2), 33 U.S.C. 1313(a)(2).2’40 CFR 130.17,Zasection 303(e)(2), 33 U.S.C. 1313(e)(2).Z’section 303(d)(l)(A), 33 U.S.C. 1313(d)(l)(A).2840 CFR 130.17(e)(l).N40 CFR 130. 17(e)(2).‘oId.

3’Environment—2 977, at 35. These include California,Oregon, Washington, Montana, Colorado, Wyoming,North Dakota, Nevada, and North Carolina.

3zSection 402(b), 33 U.S.C. 1342(b).“section 402(d)(2), 33 U.S. C. 1342(d)(2).34Section 402(e)(3), 33 U.S,C. 1342(e)(3).‘sSection 401(a), 33 U.S. C. 1341(a).‘61d.37Section 301(a), 33 U.S.C. 131 l(a).Sasection 502(1 1), 33 U.S.C. 1362(1 1).39Section 502(14),33 U,S,C, 1362(14).‘Section 309(a)(5), 33 U.S. C. 1319 (a)(5), as amended

by Public Law 95-217, section 56(C), 91 Stat. 1592.41 Section 502(13),33 U.S.C. 1362(13).42Section 301(b)(2)(C), 33 U.S,C, loll; added

by Public Law 95-217, section 42(a), 91 Stat.1582.43Section 301(b)(2)(D), 33 U,S.C. loll; added

by Public Law 95-217, section 42(a), 91 stat.1583.44 Section 304(a)(4), 33 U.S.C. 1314(a)(4), as amended

by Public Law 95-217, section 48(a), 91 Stat.1587.45 Section 304(b)(4), 33 U.S.C. 1314(b)(4), as amended

by Public Law 95-217, section 48(b), 91 Stat. 1587.46 House Report 95-830, P“ 85”47 Section 301(b)(2)(F), 33 U,S,C. 131 l(b)(2)(F).4aSection 301(g), 33 U.S.C, 1311(g), added by Public

Law 95-217, section 43,91 Stat. 1583.4eSection 306,33 U.S.C. 1316.‘Section 306(b), 33 U.S.C. 1316(b).

Slsection 306(all), 33 U.S.C. 1316(a)(l).52Environment—1976, at 14.‘Jsection 306(d), 33 U.S.C. 1316(d).~’section 307(b), 33 U.S.C. 1307(b).ss~blic Law 95-217, section 54(a), 91 Stat. 1591,

amending section 307(b)(l); 33 U.S.C. 1307(b)(l).s6Environment—~ 976, at 257.‘Tsection 208, 33 U.S. C. 1288.Sgsection 208(b)(2), 33 U.S.C. 1288(b)(2).‘gSection 301(i)(l), 33 U.S.C. 131 l(i)(l), as amended by

Public Law 95-217, section 45,91 Stat. 1584,‘Environmental Protection Afjairs of the 94th Con-

gress, p. 91.elsection 208(b)(2)(G), 33 U.S.C. lzee[b)(z)(c),ezsectiorl 208(b)(2)(H), 33 U.S.C. lz8@)(z)(W.‘3 Section 304(d) 33 U,S.C, 1314(d), as added by Public

Law 95-217, section 50,91 Stat. 1588.‘House Report 95-830, p. 80. ‘‘3533 U.s.c. 407.eosection 404(a), 33 U.S. C. 1344(a).eTPerrnitS issued under section 404 contain the fOllOw-

ing general conditions (ENG Form 1721):b. That all activities authorized herein shall, if they

involve a discharge or deposit into navigable wa-ters or ocean waters, be at all times consistentwith applicable water quality standards, effluentlimitations, and standards of performance, prohi-bitions, and pretreatment standards establishedpursuant to section 301, 302, 306 and 307 of theFederal Water Pollution Control Act of 1972(Public Law 92-500; 86 Stat. 816), or pursuant toapplicable State and local law,

c. That when the activity authorized herein involvesa discharge or deposit of dredged or fill materialinto navigable waters, the authorized activityshall, if applicable water quality standards arerevised or modified during the term of this per-mit, be modified, if necessary, to conform withsuch revised or modified water quality standardswithin 6 months of the effective date of any revi-sion or modification of water quality standards,or as directed by an implementation plan con-tained in such revised or modified standards, orwithin such longer period of time as the DistrictEngineer, in consultation with the Regional Ad-ministrator of the Environmental ProtectionAgency, may determine to be reasonable underthe circumstances,

d. That the permittee agrees to make every reason-able effort to prosecute the work authorizedherein in a manner so as to minimize any adverseimpact of the work on fish, wildlife, and naturalenvironmental values.

’392 F,hpp, 685 (D.D.C, 1975),6940 F.R. 31320, July 25,1975; 33 CFR 209.120.70Section 404(f)(l), 33 U.S.C. 1344(f)(l), as amended

by Public Law 95-217, section 67(b), 91 Stat. 1600.7’Section 404(f)(2), 33 U.S.C, 1344(f)(2), as amended

by Public Law 95-217, section 67(b), 91 Stat. 1601.72 Section 404(e), 33 U.S.C. 1344(e),


73Section 404(g), 33 U.S.C. 1344(g).7’40 CFR 440.20.7540 CFR 440.22(a).7’40 CFR 440.22(a).7740 CFR 440, subpart A.7840 CFR 44o, subpart C.7940 CFR 440, subpart D.’40 CFR 44o, subpart E.’140 CFR 440, subpart F.13240 CFR 440, subpart G.’340 CFR 440.12(a).“40 CFR 440.32 (a~l).’540 CFR 440,42(a),8840 CFR 440.52(a).’740 CFR 440,62(a),8840 CFR 440. 72(a).6e40 CFR 440.12(a)(3).’40 CFR 440.22 (a13).g140 CFR 440.22(a)(4).’240 CFR 440.52 (a12).gs40 CFR 440.62 (a~2).Q’Industrial minerals include sulfur, asbestos, fluor-

spar, gemstones, graphite, building materials, abra-

sives, and absorbents. For a description of industrialminerals and their role, see Charles F. Park. Earth-bound, pp. 117-130 (1975).

’540 CFR 436.21(e).9640 CFR 43tj.22(a), crushed stone; 40 CFR 436.32(a)

construction sand and gravel; 40 CFR 436.52(a), gyp-sum; 40 CFR 436.62(a), asphaltic mineral; 40 CFR436.72(a) , asbestos and wollastonite; 40 CFR436.102(b), barite (except wet process or flotation); 40CFR 436.1 12(b), fluorspar (except heavy media separa-tion or flotation); 40 CFR 436.132(a), borax; 40 CFR436. 142(a), potash; 40 CFR 436.152(a), sodium sulfate;40 CFR 436.192(a), frasch sulfur; 40 CFR 436.222(b),bentonite; 40 CFR 436.232(a) , magnesite; 40 CFR436.242(a), diatomite; 40 CFR 436.252(a), jade; and 40CFR 436.242(a) novaculite.

974o CFR 436.22(a)(2), crushed stone (dewatering); 40CFR 436.32 (a~2) construction sand and gravel (dewa-tering); 40 CFR 436.42(a)(2), industrial sand (HF flota-tion only); 40 CFR 436.42(a)(3), industrial sand (dewa-tering); 40 CFR 436.182(a)(l), phosphate rock; and 40CFR 436.382(a), graphite.

40- f3f14 () - -ir~ - 14

198 b Analysis of Laws Governing Access Across Federal Lands

COASTAL ZONE MANAGEMENT ACT

The Coastal Zone Management Act(CZMA) l provides a series of incentives forStates to develop comprehensive land useplanning and zoning programs to preserveand protect the resources of the coastal zone.The Act was passed in recognition of severeproblems existing in the coastal areas andthe absence of effective State and local ini-tiatives to combat these problems.

State action under the coastal zone pro-gram has two phases: First, the developmentof a State management plan that meets crite-ria set forth in the Act and is approved by theSecretary of Commerce; second, the imple-mentation of that plan. The aim of the law, insimplified terms, is to create State authoritieswith the power to manage and control all fu-ture development in the coastal region follow-ing a comprehensive management plan. TheSecretary of Commerce, through the NationalOceanic and Atmospheric Administration(NOAA), acts as the Federal administratorfor the CZMA program and is charged withassuring that State plans and implementationprograms meet the objectives of the Act.

State participation in the CZMA programis optional, but all 30 States eligible under theAct have thus far chosen to participate.2

There are three strong incentives to do so:States receive Federal financial assistance todevelop coastal zone management plans sat-isfying the statutory criteria; the cost of ad-ministering approved plans will also be sub-stantially covered by Federal grants; and aState is assured that most Federal actionsdirectly affecting coastal areas must be ‘con-sistent’ with the approved coastal zone man-agement plan.

The potential impact of State coastal zonemanagement plans on mineral access isclear. A State management plan (discussed ingreater detail below) must include the follow-ing: a definition of permissible land and wa-ter uses within the coastal zone; guidelines onthe priority of uses in specific areas (includ-


ing specific listing of low-priority uses); andan inventory and designation of areas to re-ceive specially stringent environmental pro-tection. Decisions in any of these areas couldhave a controlling impact on the feasibility ofmineral extraction or access within the coast-al zone.

Questions of mineral access are also af-fected by a section of the Act requiring Stateplans to provide for “adequate considerationof the national interest involved in planningfor, or in the siting of facilities . . . which arenecessary to meet requirements other thanlocal in nature.”3 NOAA lists minerals as oneof the resources in which there may be a na-tional interest.4 Transportation networks arelisted among facilities in which there may bea national interest. The requirement of “ade-quate consideration” has been interpreted byNOAA to mean that there be a balancing ofnational interests in coastal resources andfacilities with Federal, State, and local con-cerns involving adverse economic, social, orenvironmental impacts.5 In any event, theState plan will have to address the questionof restrictions on mineral extraction and ac-cess within the coastal zone.

THE COASTAL ZONE

The Act provides an inexact definition ofthe crucial term “coastal zone, ” the locus formanagement activity. Section 304(1) states:

The term ‘coastal zone’ means the coastalwaters (including the lands therein andthereunder) and the adjacent shorelands (in-cluding the waters therein and thereunder),strongly influenced by each other and inproximity to the shorelines of the severalcoastal States, and includes islands, transi-tional and intertidal areas, salt marshes, wetlands, and beaches. . . . The zone extends in-land from the shorelines only to the extentnecessary to control shorelands, the uses ofwhich have a direct and significant impacton the coastal waters. Excluded from the


coastal zone are lands the use of which is bylaw solely subject to the direction of or whichis held in trust by the Federal Government,its officers, and agents.

Section 304(2) indicates that the term‘coastal waters’ includes ‘those waters, adja-cent to shorelines, which contain a measur-able quantity and percentage of seawater, in-cluding but not limited to sounds, bays,lagoons, bayous, ponds, and estuaries. ’

The inland extent of the coastal zone isdecided on a case by case basis.’ It must in-clude areas whose uses will have “direct andsignificant impact on coastal waters. ” NOAAregulations list a number of significant fac-tors such as the demographic, economic, po-litical development, and geophysical charac-teristics of an area that should be consideredin making decisions on the extent of coastalzone boundaries.7

Alaska has the longest coastline of anyState, an estimated 47,300 miles of tidalocean shoreline.8 Much of the coastline is in,and will continue in, Federal ownership andis therefore excluded from inclusion in thecoastal zone.9 In its coastal zone plan submis-sion of 1978, the State will initially define theAlaskan coastal zone as being seaward to theextent of State jurisdiction and landward interms of biophysical criteria developed by theAlaska Department of Fish and Game. 10 T h einitial landward boundaries will be subject tomodification as the plan is developed indetail. 11

STATUTORY REQUIREMENTSFOR THE PLAN

The first phase of the CZMA process re-quires that the State develop a plan formanaging activities in the coastal zone. At aminimum, the plan must contain the followingnine elements specified in section 305(b):12

1. An identification of the boundaries ofthe coastal zone subject to the manage-ment program;

2. A definition of what shall constitute per-

3.

4.

5.

6.

7.

8.

9.

missible land uses and water uses withinthe coastal zone that have a direct andsignificant impact on the coastal waters;

An inventory and designation of areas ofparticular concern within the coastalzone;

An identification of the means by whichthe State proposes to exert control overthe land and water uses that have adirect and significant impact on thecoastal waters, including a listing ofrelevant constitutional provisions, laws,regulations, and judicial decisions;

Broad guidelines on the priority of usesin particular areas, including specifical-ly those uses of lowest priority;

A description of the organizationalstructure proposed to implement themanagement program, including the re-sponsibilities and interrelationships oflocal, areawide, State, regional, and in-terstate agencies in the managementprocess;

A definition of the term “beach” and aplanning process for the protection ofand access to public beaches and otherpublic coastal areas of environmental,recreational, historic, esthetic, ecologi-cal, or cultural value;

A planning process for energy facilitiesthat are likely to be located in or thatmay significantly affect the coastal zone,including, but not limited to, a processfor anticipating and managing the im-pacts from such facilities; and

A planning process for (a) assessing theeffects of shoreline erosion (howevercaused), and (b) studying and evaluatingways to control or lessen the impact ofsuch erosion, and to restore areasadversely affected by such erosion.

These requirements are designed to ensurethat qualifying plans achieve wise use of theland and water resources of the coastal zoneby giving full consideration to ecological,


cultural, historic, and esthetic values as wellas to the needs for economic development in-cluding the extraction of needed mineral re-sources. These requirements differ markedlyfrom State plans under the clean air or waterprograms, 13 in which the State plans mustmeet specific Federal requirements for theelimination of named pollutants in a specifiedtime frame.

DEVELOPING THE PLAN

The first Federal incentive for State par-ticipation in the CZMA program is the provi-sion of matching grants to meet State costs indeveloping an acceptable plan. Grants of upto 80 percent of the State costs maybe madein each of 4 years. 14

The CZMA offers considerable latitude toStates in developing an approvable plan, butthe program planning process requires thatthe States address the designated statutorycriteria while doing so. As a result, Statechoices in the development of a proposed plancould affect the availability of or access tominerals on non-Federal land in coastalzones.

Key decisions in the development and im-plementation of a coastal zone managementprogram include the designation of the coast-al boundaries, the determination of permitteduses and their priority, the inventory and des-ignation of areas of particular concern, andthe establishment of land and water use con-trols. Designation of the coastal zone bound-aries is the first step in the development of amanagement program. It determines the loca-tion and extent of territory subject to plan-ning and controls and, equally important,those areas that are excluded from controls.

The Act recognizes that land and wateruses in areas a considerable distance inlandfrom the land-sea interface may have signif-icant effects on the coastal environment.Therefore, the protection of this environmentrequires control of all areas whose uses willhave “direct and significant impact on thecoastal waters. ” The regulation interpreting

this requirement recognizes “that no simplegeographic definition will satisfy the manage-ment needs of all coastal States” because ofthe peculiarities and variations that exist. In-stead, it enumerates a number of factors,such as an area’s demographic, economic, po-litical, developmental, and geophysical, char-acteristics, that should be considered indetermining the coastal zone boundary for aState. 15

After designation of coastal zone limits, theState must determine what are permissibleland and water uses within the coastal zonethat have a direct and significant impact onthe coastal waters.16 In making these deter-minations, the regulations require States toconsider, among other things, the “require-ments for . . . extraction of mineral resourcesand fossil fuels . . . “ and the development ofindices measuring the environmental and eco-nomic impact of such activities,17 i.e., whetherthey are beneficial, benign, tolerable, oradverse. A State must provide for some evalu-ative mechanism in its plan in order to assessenvironmental and economic impacts result-ing from the extraction of minerals and fossilfuels.

Section 305(b) specifically requires Statesto identify the means by which control overpermissible land and water uses will be ex-erted; and the regulations delineate a varietyof options in terms of laws, regulatory proc-esses, and the like, that are available todemonstrate this capacity. This requirementis reinforced by the provisions of section306(e) that require adoption of some reg-ulatory process to approve or disapprove ofvarious land and water uses. State coastalzone management plans must also include“an inventory and designation of areas ofparticular concern within the coastal zone. ”These are areas of special statewide con-cern, which, it is expected, will be empha-sized in their development of coastal zonepolicies and controls.

According to regulations issued by NOAAto supply guidance to States in the develop-ment of their plans :18


Geographic areas of particular concernare likely to encompass not only the more-often cited areas of significant natural valueor importance, but also: (a) transitional or in-tensely developed areas where reclamation,restoration, public access, and other actionsare especially needed; and (b) those areas es-pecially suited for intensive use or develop-ment.

The regulations recognize that States “willvary in their perception of what areas are ofparticular concern” and provide detailed cri-teria for guidance during the designationprocess, which could affect mineral activitiesin coastal areas.

In designating areas of particular concern,the States are directed to make immediacy of

need a major consideration in their determi-nations and to base designations on a reviewof natural and manmade resources and theuses of the coastal areas. These include thefollowing:19

1.

2.

3.

Areas of unique, scarce, fragile, or vulner-able natural habitat, physical feature, his-torical significance, cultural value, andscenic importance;

Areas of high natural productivity oressential habitat for living resources, in-cluding fish, wildlife, and the varioustrophic levels in the food web critical totheir well-being;

Areas of substantial recreational valueand/or opportunity;

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

Stellar Sea Lions, Kenai fjord, Alaska


4. Area where developments and facilitiesare dependent on the utilization of, or ac-cess to, coastal waters;

5. Areas of unique geologic or topographicsignificance to industrial or commercialdevelopment;

6. Areas of urban concentration whereshoreline utilization and other water usesare highly competitive;

7. Areas of significant hazard if developed,owing to storms, slides, floods, erosion,settlement, etc.; and

8. Areas needed to protect, maintain, or re-plenish coastal lands or resources, includ-ing coastal flood plains, aquifer rechargeareas, and dunes, coral and other reefs,beaches, offshore sand deposits, and man-grove stands.

The inventory and designation of areas ofparticular concern should assist the States inmeeting the statutory requirement that man-agement plans provide procedures for thedesignation of specific areas for preservationor restoration for their conservation, recrea-tional, ecological, or aesthetic values. Itshould be noted that the list includes con-sideration of the mineral value of coastal“areas of unique geologic or topographic sig-nificance to industrial or commercial devel-opment.”20

APPROVING THE PLAN

Once a State plan is approved by the Sec-retary, the State is eligible for a program ad-ministration grant under section 305 of theAct. These grants provide up to 80 percent ofthe cost of actually administering the pro-grams described in the plan.21 The Secretaryis also authorized to make grants to States forprogram costs during the period between sub-mission of the plan and its approval.22

Review and approval of plans is handled bythe Office of Coastal Zone Management ofNOAA.23 Approval requires more than show-ing that a State plan contains the nine ele-ments set forth in section 305(b). The Sec-

retary must also find that the following ninerequirements have been met in the plan’sdevelopment.

1. The plan was developed in compliancewith relevant Federal rules and regula-tions, and allowed opportunity for fullparticipation by “relevant Federal andState agencies, local governments, re-gional organizations, port authorities,and other interested parties, public andprivate.” 24

2. The State has coordinated its program

3.

4.

5.

6.

with local, areawide, and interstateplans applicable to areas within thecoastal zone developed under section204 of the Demonstration Cities and Met-ropolitan Development Act of 196625 andestablished an effective mechanism forthe State coastal zone management pro-gram to maintain coordination with localgovernments and regional and interstateagencies. The coordination mechanismmust require that the coastal zone man-agement agency notify and receive com-ments from local governments on anyprogram action that would conflict withlocal zoning rules. The State agencymust allow 30 days for comment by thelocal officials; the management agencymust review any such comments, prior toimplementing the proposed action.26

The State has held public hearings indeveloping the program.27

The Governor has approved the plan.28

The Governor has designated a singleagency to receive and administer section305 grants.29

The State is organized to administer theplan. 30

7. The State has the authority to implementthe program, including authority to con-trol land and water uses in the zone andthe ability to acquire interests in proper-ty.31 Controls over land and water maybe accomplished through any one or acombination of these techniques :32


(a)

(b)

(c)

Local implementation of State estab-lished standards and criteria subjectto State administrative review;Direct State land and water useplanning and regulation;Local planning and regulation ofland and water uses subject to Stateadministrative review for consisten-cy, with State power to approve ordisapprove after public notice andan opportunist y for hearings.

The plan must also include a method forassuring that local land and water useregulations “do not unreasonably re-strict land or water uses of regionalbenefit.” 33

8. The management program must providefor planning and siting of facilities(including energy-related facilities) nec-essary to meet requirements that are“other than local in nature.”34

9. The program must include a procedureto designate areas for preservation orrestoration for conservation, recrea-tional, ecological, and other values .35

However, compliance with the statutory re-quirements is not sufficient to guarantee planapproval. Regulations setting out general re-quirements supplementary to the statutestate: “At the minimum, States shall includethree broad classes of policies in theirmanagement program in order to provide aframework for the exercise of various man-agement techniques governing coastal re-sources, uses, and areas.”36 These policiesare: (1) resource policies directed towardsthe management and conservation of val-uable or vulnerable coastal resources; (2)coastal development policies that addresssuch matters as shorefront access, ports andharbors, energy development, and mineralaccess; and (3) governmental process policiesincluding clarification and simplification ofregulatory and permitting procedures.

The State management plan may beamended with approval of the Secretary ofCommerce after public notice, consultationwith affected Federal, State, and local gov-

ernment agencies, and an opportunity forparticipation by interested parties. A Statemay, with approval of the Secretary, imple-ment its programs in segments in order tofocus immediate attention on those coastalareas with the most serious problems, as longas the segmented management program canultimately be consolidated into a single Stateprogram.

During the review of each State manage-ment program submitted for Federal ap-proval, NOAA will prepare an EIS pursuantto NEPA.37

FEDERAL-STATE RELATIONSHIPSUNDER CZMA

The Act establishes a close relationship be-tween the State and Federal coastal agenciesconducting or licensing activities within ornear the coastal zone. The coastal zone itselfcannot contain “lands the use of which is bylaw subject solely to the discretion of, orwhich is held in trust by, the Federal Govern-ment’’ 38—e.g., national parks, forests, wild-life refuges, petroleum reserves, and land ad-ministered by BLM. The management plan,however, can have a major effect on Federalactivities that might affect the coastal zone.In addition, Federal agencies acting in andaround the zone have a role in the approval ofa State management plan.

Section 306(b) requires the Secretary ofCommerce to consider the views of Federalagencies that might be affected by a manage-ment plan before approving that plan. Thus,Federal agencies operating in or near thezone have the opportunity to call for changesin a management plan.

Once a plan is approved, the State then hasthe opportunity to influence Federal activityin and near the zone due to the “Federal con-sistency” provision of the Act. The consist-ency provision is, in actuality, fourfold:

● Federal agencies that conduct or sup-port activities directly affecting the zone


must do so in a manner consistent, to themaximum extent, with the managementprogram. 39

Federal agencies undertaking a develop-ment project in the zone must ensurethat the project is, to the maximum ex-tent, consistent with the managementprogram. 40

Applicants for a Federal license or per-mit affecting land or water uses in thezone must secure State certification thatthe activity complies with the manage-ment program before the Federal agencycan grant the license or permit.41

Applicants for Federal assistance un-der other Federal programs affectingthe coastal zone must include the viewsof the appropriate State managementagency on the relationship of the pro-posed projects to the State coastal zoneplan.42

Exceptions to the consistency provisionsmay be made where the Secretary finds thatthe proposed Federal action is “consistentwith the objectives of (the Act) or is otherwisenecessary in the interests of national secu-rity.” 43

Section 307(f)44 of the CZMA states that itdoes not in any way affect any requirementthat is established by FWPCA, as amended,45

or by the Clean Air Act, as amended,46 or anyrequirement that is established pursuant toeither of these Acts by Federal, State, or localgovernments. Moreover, the Act goes on tomandate that such requirements must be in-corporated in the plan and must serve as thewater pollution control and air pollution con-trol requirements applicable to the coastalzone management program.

If there is a “serious disagreement” be-tween any Federal agency and a coastalState in the development of a managementplan under section 305, or in the administra-tion of the plan under section 306, theSecretary of Commerce, in cooperation with

the Executive Office of the President, shallseek to mediate the differences involved.47

Where the disagreement arises over a State-Federal conflict in the administration of theplan, a public hearing must be held in thelocal area concerned.48

Federal land management agencies aresubject to the consistency requirements of theCZMA.49 Applications for rights-of-way orother uses of Federal lands in or affectingcoastal zone areas must be consistent withany approved State management program,unless there is a decision by the Secretary ofCommerce that the application is consistentwith the Act or necessary in the national in-terest.50 Applicants for permits or rights-of-way involving Federal lands in coastal areasin a State with an approved plan must secureState approval of their applications in addi-tion to Federal agency approval.51 Under theFederal Land Policy and Management Act52

and the Forest and Rangeland Renewable Re-sources Act,53 as amended, the BLM and For-est Service, respectively, are required to de-velop management plans for individual man-agement units of public lands and nationalforests. For those units in or near designatedcoastal areas, the Federal plan should, underCZMA provisions, be consistent with Statemanagement plans “to the maximum extentpracticable.” Thus, permissible uses of Fed-eral lands in coastal areas may, to a largedegree, be controlled by individual Stateplans. 54

In Alaska, where large portions of thecoast will remain in Federal ownership, thedevelopment and implementation of the man-agement program has two likely conse-quences. First, the affected Federal agencieswill clearly have a major impact on decisionsby the Secretary of Commerce and NOAA re-garding the adequacy and provisions of theprogram. Second, the management program,when approved, will provide the State withan opportunity to influence Federal activityover a large area in and around the coast,which would otherwise be totally beyondState control.


While

NATIONAL INTERESTCONSIDERATIONS

the main thrust of the CZMA pro-gram is aimed at protecting and preservingnatural resources in the coastal zone, the Actcontains recognition of the needs for resourcedevelopment.

Section 306(c)(8)55 requires that State plansmust provide for adequate consideration ofthe national interest involved in planning forand siting of facilities that are necessary tomeet requirements which are “other thanlocal in nature. ” NOAA regulations elaborateon the meaning of this provision.56 This re-quirement is not construed as compelling theStates actually to include accommodationsfor certain types of facilities in their manage-ment programs.57 It is intended, rather, t omake sure that such national concerns areconsidered at an early stage of State planningand that such facilities are not arbitrarily ex-cluded or unreasonably restricted in the man-agement program.58 “Requirements, whichare other than local in nature” are consid-ered to be those relating to facilities designedto serve more than one locality.

NOAA has issued guidelines in the form ofregulations that identify types of facilitieswith siting characteristics that the Secretaryof Commerce believes may involve a clear na-tional interest. 59 These national interest r e -quirements include interstate transportationfacilities, such as interstate highways, air-ports, aids to navigation, ports, harbors, andrailroads. Under the terms of this regulation,State plans must make reference to the viewsof “cognizant Federal agencies” as to howthese national needs may be met in thecoastal zone of that particular State. In thecase of minerals, the cognizant Federal agen-cies are the Bureau of Mines and the Geologi-cal Survey of the Department of the Interior.For transportation facilities, Federal agen-cies include the Federal Highway Administra-tion, the Federal Aviation Administration, theCoast Guard, the Army Corps of Engineers,the Maritime Administration, and the Inter-state Commerce Commission.60

States must consult with appropriateFederal agencies and neighboring States inascertaining local, regional, and nationalneeds for facility sitings in or affecting thecoastal zone.61

This coordination must beginat an early stage of planning, so that nationaland regional needs will receive full consid-eration during the process of program devel-opment. The regulations emphasize that theStates should actively seek the advice of con-cerned Federal agencies, as well as con-sulting with neighboring States that sharecoastal resources, and with regional in-terstate bodies.

OVERVIEW: MINERAL ACCESS ANDCOASTAL ZONE MANAGEMENT

There are three important elements ofState implementation of the coastal zonemanagement program that should be of activeconcern to mineral interests. First, is thedevelopment of a State management programplan; second, is the opportunity for publicparticipation in the development of the plan;and third, is the consideration of national in-terest involved in the siting of facilities. Theseelements are key components in the develop-ment and operation of a coastal zone manage-ment program and establish the State guide-lines and rules for regulation of activities anduses within the coastal zone. Moreover, Fed-eral agencies, including land managementagencies, are required to conduct their pro-grams and actions in the coastal zone to com-ply with the State plan, to the maximum ex-tent possible. The Coastal Zone ManagementAct and regulations provide for a considera-tion of mineral resources needs and activ-ities, and require opportunities for publicparticipation through which the views of theminerals industry may be heard.

The initial development of a State planestablishes the limits of the coastal z o n e ,designates permissible activities and u s e sand their relative priorities, identifies areasof particular concern, and establishes a Statemechanism for control of land and water usesin coastal areas. Regulations for setting per-


missible uses specifically include in the list offactors States should consider in the planningprocess, a consideration of the requirementsfor the extraction of mineral resources andfossil fuels, and the environmental and eco-nomic impacts of these activities.62 Considera-tion of the transportation needs of the coastalzone, including transportation necessary formineral resources extraction, should also bereflected in the planning process. The inven-tory and designation of areas of particularconcern specifically include consideration of“areas of geologic or topographic signif-icance to industrial or commercial develop-ment."63

A primary purpose of the Act is “to en-courage the participation of the public, ofFederal, State, and local governments, and ofregional agencies in the development of coast-al zone management programs.” 64 To thisend, the Act requires that there be “publicnotice and opportunity for full participationby Federal, State, and local governments,regional and interstate agencies, and otherinterested parties, public and private” in thedevelopment of the State plan and proposalsfor modification.65 All public hearings held

under the Act must be announced at least 30days prior to the hearing date and all agencymaterials and documents must be made avail-able to the public for review and study.66 Inaddition, Federal regulations issued underthe CZMA are subject to provisions of the Ad-ministrative Procedure Act and allow op-portunity for public review and comment.67

The ample public participation provisionsin the Act should, in theory, facilitate theability of representatives of the mining in-dustry, as well as individual miners and op-erators, to bring their particular needs andproblems before Federal, State, and localdecisionmakers. At all phases in the develop-ment, review, implementation, and modifica-tion of State coastal zone management pro-grams these concerns—including special ac-cess and transportation needs associatedwith operations in or affecting the coastalzone— can be expressed. However, experi-ence thus far suggests that neither coastalzone planners nor the mining community haveaddressed themselves at any length to thepotential impacts of coastal zone planning onmineral access.68 It is still relatively early inthe development of the program.69

FOOTNOTE REFERENCES FOR COASTAL ZONEMANAGEMENT ACT

‘Public Law 92-583, 86 Stat. 1280, oct. 27, 1972, asamended by Public Law 94-370, 90 Stat, 1013, July 26,1976, 16 U.S.C. 1451-1464.

‘Council on Environmental Quality, Environ~entalQuality–1977, The Eighth Annual Report of the CounciJon Environmental Quality, 1977, at 109. CEQ reportsthat management programs have been approved thusfar for the States of Washington and Oregon and forthe Bay Area Conservation and Development Commis-sion of the San Francisco Bay area and Culebra area ofPuerto Rico. Proposals have also been submitted byCalifornia and the Virgin Islands. Indiana was sus-pended for failing to make progress in planning a pro-gram and has applied for reinstatement.

3Section 306(c)(8); 16 U.S.C. 1455(c)(8).

415 CFR 923,52. This section contains two tables,which are characterized as illustrative of various itemsof national interest. Table I, “Facilities in which theremay be a national interest in planning or siting” lists (1)National defense and aerospace, (2) Energy productionand transmission, (3) Recreation, (4) Transportation,and (5) Regional water treatment plants. Table II, deal-ing with resources whose preservation might justifiablyconflict with the national interest involved in the sitingof facilities in table 1, lists minerals, but lists as the“Major related Federal legislation” only the MineralLeasing Act. While this does not mean that hardrockminerals are not to be considered items of national in-terest, it may indicate that NOAA has not focused onthis particular area.

Ch. 6 Federal Land Planning and Environmental Laws . 207

515 CFR 923.52(a).8A discussion of boundaries for the coastal zone is

found at 15 CFR 923, subpart D.The coastal management area must include the fol-

lowing: (1) areas in which there are “uses subject tomanagement” (defined at 15 CFR 923.11; in general,they include facilities which have a direct and signifi-cant impact on coastal waters, such as tank farms andrefineries, industrial parks, LNG facilities, ports, etc.,15 CFR 923.11(c)(2) specifically mentions mineral andsand extraction.); (2) Special management areas (de-fined at 15 CFR 923.21 as areas of unique scarce or vul-nerable natural habitat or historical significance orcultural value, areas of high natural productivity oressential habitat for living resources, and other areasneeding stringent environmental protection); (3) transi-tional or intertidal areas; (4) salt marshes and wet-lands; (5) islands; and (6) beaches. See 15 CFR923.31(a).

The succeeding section of the regulation identifiesother areas that should be considered for, but are notrequired for, inclusion in the coastal management area:(1) watersheds; (2) waters under saline influence; and[3) Indian lands not held in trust by the Federal Govern-ment.

8Federal-State Land Use Planning Commission forAlaska, “The D-2 Book, ” Lands of National Interest inNaska, May 1977, at 42.

‘The coastal management zone cannot include“lands owned, leased, held in trust or whose use isotherwise by law solely subject to the discretion of theFederal Government. ” 15 CFR 923.33(a).

‘“Information concerning the current status of theAlaska coastal zone plan was provided in a communica-tion from Mr. Roger Allington, a member of the Assess-ment Advisory Panel, who is serving on the State ofAlaska Coastal Zone Planning Board.

‘lSection 3C)5(b); 16 U.S.C. 1454(b). Interim finalregulations for the development and approval of Statecoastal management programs were not issued untilMar. 1, 1978, after preparation of this analysis; theysuperseded previously proposed and final rules govern-ing NOAA’s administration of the Act (see 43 F.R. 8378,Mar. 1, 1978, for a list of revised and superseded regu-lations). Although some sections of this analysis werebased on previous regulations, citations are to the re-vised regulations of Mar. 1, 1978.

IZ16 U.S. C. 1454(b).IJSection 110 of the Clean Air Act. See 42 U.S. C. 7410

and section 208 of the Clean Water Act, 33 U.S.C. 1288.“Section 305(c); 16 U.S,C. 1454(c).’515 CFR 923, subpart D, supra, notes 6 and 7.I“15 CFR 923, subpart B.’715 CFR 920.12.’838 F.R. 33046, NOV. 29, 1973.1915 CFR 923.21(d).2015 CFR 923.21(d)(l)(v).ZISection 306(a); 16 U.S.C. 1455(a).Zzsection 305(a~2); 16 U.S.C. 1454( a12).Zqsee 43 F.R. 8378, Mar. 1, 1978.

24Section 306 (c)(l); 16 U.S,C. 1455 (c)(l).2542 U.S.C, 3334.Zesection 3(xj(c)(2); 16 U.S. C. 1455(c)(2).27Section 306(c)(3); 16 U.S.C. 1455(c)(3),Z’Section 306(c)(4); 16 U.S.C. 1455(c)(4).2gSection 306(c)(5); 16 U.S.C. 1455[c)(5).30Section 306(c)(6); 16 U.S,C, 1455(c)(6).3’Section 306(c)(7); 16 U.S.C. 1455(c)(7).Jzsection 306(e)(l); 16 U.S. C. 1455(e)(l). These three

control techniques are discussed at some length in theMar. 1, 1978 regulations, 15 CFR 923,42, at 43 F.R.8407.

J’Section 306(e)(2); 16 U.S.C. 1455(e)(2).34Section 306(c)(8); 16 U.S.C. 1455(c)(8).35Section 306(c)(9); 16 U.S.C. 1455(c)(9).3615 CFR g23.3(f). Mineral extraction is specifically

mentioned among resource development policies.3715 CFR g23.62. NOAA requires that State manage-

ment programs be accompanied by “an environmentalimpact assessment that meets the requirements of theNational Environmental Policy Act.” The Office ofCoastal Zone Management uses this information todetermine if it must prepare an environmental impactstatement. (It is almost impossible to conceive of asituation in which an EIS would not be needed. ) Pro-cedures for timing and review of the EIS are set forth at15 CFR 923.72.

Sasection 304(1); 16 U.S.C. 1453[1). See 15 CFR923.33(a).

3gSection 307(c)(1); 16 U.S.C. 1456(c)(1).‘Section 307(c)(2); 16 U.S.C. 1456(c)(2).4’Section 307(c)(3); 16 U.S.C. 1456(c)(3).42Section 307(d); 16 U.S.C. 1456(d).‘sSection 307(c)(3)(A), section 307(c)(3)(B)(ii) and sec-

tion 307(d); 16 U.S.C. 1456(c)(3)(A), 16 U.S.C. 1456(c)(3)(B)(ii), and 16 U.S.C. 1456(d). See 15 CFR 930, SubpartH, “Secretarial Review Related to the Objectives andPurposes of the Act and National Security Interest. ”

“16 U,S.C. 1456(f). See 15 CFR 923.44.4542 U.S. C. 7401 et Seq.’33 U.S.C. 1251 et seq.‘7 Section 307(h); 16 U.S.C. 1456(h). See 15 CFR 930,

Subpart G, Secretarial Mediation.48 Section 307(h)(2); 16 U-S*CO 1456(h)(2). See 15 CFR

93o, Subpart G, Secretarial Mediation.‘QNOAA has recently published a final rule on

Federal consistency with approved management pro-grams, 43 F.R. 10510, Mar. 13, 1978. Consistency re-quirements for Federal lease or permit programs are at15 CFR 923, subpart D.

S015 CFR 923, subpart H.Slsee 15 CFR g30.63, State agency concurrence with

applications for Federal permits or licenses; 15 CFR930.64, Effects of State agency objection. NOAA regu-lations provide a process by which a State may list inadvance certain Federal permit and license activitieswhich must be reviewed for consistency, 15 CFR930.53, and an associated procedure by which a Statemay have an opportunity to review other Federal per-mit and licensing activities should they prove to have an


impact on the coastal zone, 15 CFR 930.54. Both proce-dures allow for review of Federal permits and licensesrelating to activities which actually take place outsidethe boundaries of the zone, but have an impact withinthe zone (see Comment, 15 CFR 930.53(b)). Whenever aState reviews an action, the applicant for the Federalpermit or license must provide the State reviewingagency with data and information necessary to assessthe impact of the proposed activity on the affectedcoastal zone. The State agency must provide for publicnotice of the application, 15 CFR 930.61, and, at its dis-cretion, public hearings on the conformity of the activ-ity with the management plan. Under the regulations,the applicant is initially required to certify that its ap-plication is in accord with the management plan, 15CFR 930.57. The State acts as a reviewer, either con-curring in the applicant’s assessment, 15 CFR 930.63,or objecting, 15 CFR 930.64. If the State agency objects,then the Federal agency may not issue the permit orlicense, 15 CFR 930.65, unless the Secretary overridesthe State decision under 15 CFR 93o, subpart H.

sz~blic Law 94-579, 90 Stat. 2743, oct. 21, 1976, 43U.S.C. 1701 et seq. Planning requirements are at sec-tion 202, 43 U.S.C. 1712. It states, in part, that: “In thedevelopment and revision of land use plans, the Sec-retary (of the Interior) shall . . . (9) to the extent consist-ent with the laws governing the administration of thepublic lands, coordinate the land use inventory, plan-ning, and management activities of or for such landswith the land use planning and management programsof other Federal departments and agencies and of theStates and local governments within which the landsare located, ., . Land use plans of the Secretary underthis section shall be consistent with State and localplans to the maximum extent he finds consistent withFederal law and the purposes of this Act. ” Section202(c)(9), 43 U.S.C. 1712(c)(9).

SJfiblic Law 93-378, 88 Stat, 476, Aug. 17, 1974, asamended by Public Law 94-588, 90 Stat. 2949, Oct. 22,1976. 16 U.S.C. 1601, et seq. Section 6 contains re-quirements for national forest system planning, 16U.S,C. 1604, but contains no specific mention of con-sistency with State or local management plans.

54There is no provision for direct State approval ordisapproval of agency land use plans that controldevelopment within the coastal zone. The consistencyrequirement technically affects only direct Federalagency activities and activities requiring a Federallicense or permit, not plans or procedures that maybedeterminative of agency choices of which activities willbe undertaken and which licenses and permits will begranted. Of course, if agency plans and procedures arenot sensitive to coastal zone management programs,then they will merely create an internal procedure thatmakes choices that can be nullified when they reachfruition as direct action, licenses, or permits. Signifi-cantly, the consistency regulations do contain a provi-sion describing a process by which management plansand the consistency requirement will be applied direct-ly to OCS plans, 15 CFR 93o, subpart E. The impact of

OCS activity on the coastal zone and the question ofcontrol over that activity remains controversial andhas been a central force in the development of the en-tire coastal zone program. It is likely that in framing theconsistency regulations, as elsewhere in developing theregulatory structure for administration of the Act,other types of land use and other Federal land use plan-ning efforts were not considered in great detail.

5516 U,S,C, 1456(c)(8).5815 CFR 923.52.5715 CFR 923.52(a).s81d.s~see table I, 15 CFR 923.52.‘Id,8115 CFR g23.52(f). In addition to the national interest

provision, the Act and regulations contain a relatedprovision concerning “uses of regional benefit,” 15 CFR923.12 and 15 CFR 923.43, designed to ensure that aState plan does not prevent the development of projectsthat are of regional benefit.

‘Zsee 15 CFR 923.2(d)(8), 15 CFR 923.3( f)[2).’315 CFR 923.21(d)(l)(v).e’section 303(d), 16 U.S.C. 1452(d).esseetion 306(c)(1); 16 U.S.C. 1455(c)(1).eesection 308; 16 U.S.C. 1457.8TSection 314; 16 U.S.C. 1463.‘As part of this assessment, OTA commissioned two

studies of the relationship between developing coastalzone management programs and questions of mineralaccess. One study, “E~~ects of the Federal Coastal ZoneManagement Act of 1972 on Access to Minerals on Non-Federal Lands, ” Earth Satellite Corporation, 1977, wasa review of programs and interviews with public andprivate representatives in the States of Delaware,Maryland, and New Jersey. The other study, “CoastalZone Management and Access to Onshore Minerals onNon-Federal Lands—A Threshold Assessment, ”Theberge and Whitney, 1977, analyzed laws and inter-viewed mining interests (from major hardrock miningoperators to small sand and gravel producers) andcoastal zone regulatory personnel in the States ofVirginia, North Carolina, and South Carolina.

Both studies came to similar conclusions. EarthSatellite reported:

Direct (resulting from implementation of theAct) or indirect (resulting from State and locallaws and regulations developed as a result of thegeneral attitude towards land management andenvironmental protection fostered by CZMA andrelated Federal laws) environmental, social/cul-tural, economic, national security, recreation/scenic, transportation, institutional, or other ef-fects on onshore non-Federal mining resultingfrom the CZMA have not been identified,

All but a few of the mineral producers in thethree State area are small businesses; most areunaware of the CZMA and none could cite specificaccess or blockage problems resulting from theAct.


Theberge and Whitney found:Even in States that have enacted or are adoptingcomparatively advanced coastal management andplanning programs, such programs have not as yetexpressly addressed the issue of access to min-erals in the coastal zone, although both NorthCarolina and South Carolina have regulatory proc-ess and authority to do so. Although the CZM plan-ning phase will soon enter its fourth and finalyear, mining interests still have an opportunity toplay a meaningful role in plan development.

This lack of focus on mineral access is understand-able. Plans are still in the development stage. Othercontroversies such as OCS development and public ac-cess to beaches have dominated the coastal zone plan-ning process. Issues such as Surface Mining legislation,the Clean Air Act, and Alaska National Interest Landshave had higher priority for the mining community.

However, the findings of the two reports—whileclearly an accurate reflection of the situation in theplaces and times studied—may not portray the relationof coastal zone management to minerals access at latertimes or in other States. The States studied shared thefollowing characteristics: (1) None were far advancedin management planning; (2) The major mining activitywas the extraction of common variety minerals; (3) Allthe States involved had highly developed coastlineswith a history of land use control by pervasive and com-prehensive zoning laws; and (4) None of the States hada particularly major Federal presence on or near thecoastal zone. It is conceivable that coastal zonemanagement will have a more appreciable impact onmineral access, in any State, when a final plan is ap-

proved and operational, and that it might have a moresignificant effect in States with hardrock mining poten-tial in the coastal zone, in States which do not have ahistory of land use controls on coastal areas, or inStates which have a significant Federal land manage-ment presence on the coastal zone.

e9Alaska has yet to submit a CO&3tal zone manage-ment plan. Some steps have been taken at the State andlocal level to begin the process. State legislation passedin 1977, S. 220, establishes a framework for State con-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 ZonePolicy Council will develop guidelines to be imple-mented at the local and regional level. Every local gov-ernment unit bordering on, or located in an area thathas a significant impact on the coast will have author-ity to implement these guidelines. In unorganized areas,special new boards and commissions have been estab-lished to control use of the coast or land and water hav-ing an impact on the coast. The effects of the consist-ency provision will have a major bearing on the oper-ation of the management program in Alaska for tworeasons: (1) major exploration, development, and pro-duction programs planned as part of the OCS programand (2) the large amount of coastal lands that will re-main under Federal ownership even after State andNative land selections are completed. The roles of Alas-ka Natives and the Native Corporations, which havelarge coastal holdings, have yet to be clarified. Al-though Indian tribes can operate as regional planningagencies, 15 CFR 923.92(e), the Corporations are nottribes. However, villages will implement the StateGuidelines. Material supplied by Roger Allington, seesupra, note 10.

7

Options forCongressional Consideration

————.— .

Chapter 7.— OPTIONS FOR CONGRESSIONALCONSIDERATION

Page

TABLEPage

5. Summary of Selected Congressional Action Options . . . . 216

Options forCongressional Consideration

INTRODUCTION

Congress, through the legislative decisionscalled for by section 17(d)(2) of the AlaskaNative Claims Settlement Act (ANCSA), has aunique opportunity to influence Alaska’s eco-nomic development while protecting its envi-ronmental values. The unprecedented landgrants under ANCSA and under the AlaskaStatehood Act, which many view as the foun-dation of Alaska’s economic future, are cre-ating major changes in its landownership pat-terns.

Following the conveyance of Native andState lands, approximately 60 percent of theState will remain in Federal ownership. Con-gressional decisions about the managementof these Federal areas could affect mineralresource development on nearby non-Federallands. The access policies of Federal landmanagement agencies are thus of criticalconcern to non-Federal landholders. This isparticularly true in remote sections of Alaskawhere topography, landownership patterns,and the lack of an extensive surface trans-portation system combine to isolate manyareas from potential markets for their prod-ucts.

Compared with the rest of the UnitedStates, Alaska has a limited surface trans-

portation system. Most of the settlementsthroughout the State are connected by air.However, the development of mineral re-sources—with the exception of certain pre-cious metals—requires a transportation sys-tem able to move large quantities of bulkmaterials to market. In most of Alaska, a sur-face transportation system—a railroad orhighway—would be the only mode capable oftransporting bulk ore.] Resolution of uncer-tainties about the availability of possibleroutes crossing Federal lands and about theconditions of their use could facilitate Stateplanning and decisionmaking on the development of specific transportation systems.

Congressional designation of vast areas ofAlaskan lands for conservation purposes, forexample as parks and wildlife refuges, im-mediately places a restriction on their avail-ability for other purposes. This includes theiruse for transportation routes and for access

‘For a discussion of mineral transportation require-ments see OTA working paper, John W. Whitney andDennis Bryan, “Assessment of Transportation AccessRequirements for Minerals Exploration and Mine De-velopment and Operation in Alaska, ” in Analysis ofLaws Goverm”ng Access Across Federal Lands: Optionsfor Access in Alaska, Volume II, Working Papers (OTA-M-76),

213

40-894 0 - 79 - 15

Ch. 7 Options for Congressional Consideration ● 215

Photo Credit: The Alaska Coal/l/on

The primary mode of transportation throughout most of Alaska is by air. Here, a Hercules air transport planeunloading heavy equipment for Trans-Alaska Pipeline construction

to non-Federal lands. Whether or not Con-gress specifically addresses future transpor-tation demands and access needs in legisla-tion on the proposed conservation areas, thed-2 decisions, either expressly or by implica-tion, will have access policy aspects thatcould influence resource development on sur-rounding non-Federal lands.

Because of the importance of the congres-sional access policy decision to the develop-ment of mineral resources in Alaska, a rangeof possible congressional options that ad-dress the issue of the use of Federal lands foraccess have been identified. The access op-tions, which are discussed in this chapter,range from the extension of the existing ac-cess policies of Federal land managementsystems, through special provisions for Alas-kan right-of-way exceptions and Alaskantransportation system needs, to a restrictiveaccess policy that would deny most accessuses of the conservation system lands—thed-2 lands. (See table 5.) These options wereexamined using information obtained fromcase studies and interviews.

In addition to the access policy options dis-cussed in this chapter, there are other alter-natives that could aid access to mineral re-sources on non-Federal lands in Alaska. Someactions relate to Federal land managementissues, such as the settlement of land selec-tions and easement issues under ANCSA andthe Alaska Statehood Act or providing assist-ance to those seeking access across Federallands that are under new management sys-tems. Other alternatives include planningand technical assistance to State and localgovernments and to Native Corporations fordeveloping non-Federal natural resourcesand Alaskan transportation systems whilebalancing this development against the con-servation systems’ objectives of preservationand recreation.

The availability of possible transportationroutes to serve non-Federal lands in Alaskawill be influenced by the congressional deci-sion about whether or not to allow surface ac-cess across Federal lands placed in conserva-tion systems. If Congress allows access, itcould be an incentive to Alaska’s efforts to

Table 5—Summary of Selected Congressional Action Options*

,..-. . .

.

Access through ap-plication of existinglaws.

Now

Congress makes d-2lands designationswithout any provisionfor nonrecreationalaccess.

Existing Institutions Existing institutions

Now

Existing institutions

Now

Existing institutions

Now Now

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 Raliroad Admlnlstratlon, Interstate Commerce Commwslon; U.S. Coast Guard, Department of the Army, Corps of Engineers, and the Federal Power Commission



Dog sled team— a traditional means of transportation in rural Alaska


generate a State transportation plan and pri-orities. Resolution of the uncertainty aboutthe possible use of Federal d-2 lands fortransportation purposes could facilitate t h eState’s initial planning and evaluation of thetransportation needs. This, in turn, c o u l dhave the effect of encouraging mineral ex-ploration and development.

Specific transportation projects must stillbe evaluated under established decisionmak-ing procedures. This evaluation process in-cludes consideration of the economic, envi-ronmental, social, engineering, and trans-portation aspects of a proposed project. I talso provides opportunities for the participa-tion of State and local governments, NativeCorporations, and other concerned interests.The approval of the Federal land manager isalso necessary before a transportation sys-tem can be constructed over any F e d e r a llands.

Should Congress decide to limit or prohibitthe surface access use of conservation sys-tem lands, mineral exploration and develop-ment might be discouraged in those areas o f

Alaska that have no existing means of trans-porting bulk materials. Placer mining, pri-marily for precious metals, however, wouldbe expected to continue. As a possible alter-native, Congress could decide to allow accessin some areas and to deny it in others. It isconceivable that future technological innova-tions will make it possible to transport largequantities of minerals in new ways. These in-novations might include dirigibles, or low-draft hover craft that would be able to moveheavy loads in an arctic environment. Thiscould allow exploration and development inthose areas where surface access acrossFederal lands is not permitted. At present, n osuch innovative technologies are available.

The Federal land management laws thatdirectly control physical and legal a c c e s sacross Federal lands to mineral deposits o nnon-Federal lands, are analyzed in chapter 4.Potential limitations are identified in the ac-cess provisions of the laws that govern t h evarious land management systems as theymight affect the emerging landownershipsituation in Alaska.

FEDERAL LANDEXISTING

MANAGEMENT SYSTEMS–ACCESS PROVISIONS

The Federal land management systems in-clude the public lands, which are managed bythe Bureau of Land Management (BLM); andthose lands which are referred to in this re-port as the national conservation s y s t e mlands. These include: the National Park Sys-tem, the National Wildlife Refuge System, theNational Forest System, the National Wilder-ness Preservation System, and the NationalWild and Scenic Rivers System.

The National Park System lacks any ex-plicit right-of-way provision granting accessthrough park areas to non-Federal lands.While the absence of a specific provision au-thorizing grants of rights-of-way across na-tional parks does not bar such use; at the

same time, it does not provide assurance tonon-Federal landholders who may need tocross park lands. This lack of any assuranceof access and of the terms and conditions ofrights-of-way could deter potential devel-opers of non-Federal lands.

The Wilderness Act provides exceptions toits prohibition on roads and mechanizedmodes of travel through Federal wildernessareas for the holders of existing rights, andfor the access needs of owners of privatelands that are wholly surrounded by nationalforest wilderness areas. These exceptions donot extend to owners whose lands are sur-rounded by national park or refuge wilder-ness areas unless Congress expressly ex-


tends them to specific units. Even with suchan extension, the exceptions for surroundedprivate lands and existing private accessrights might not provide adequate assuranceof access to isolated, but nonsurrounded, non-Federal lands. Construction of surface trans-portation systems through wilderness areasis prohibited without specific congressionalapproval. No statutory mechanism exists,however, to review the need for any such ex-ceptions. In Alaska, where there are largeareas of Federal lands proposed for wilder-ness status, a lack of extensive surface trans-portation, and topographic and engineeringrestrictions that limit the availability of possi-ble access routes, express congressional ap-proval will be required for any future surfacetransportation systems that cross wildernessareas.

Even after the passage of Alaska Landslegislation, uncertainty may still persist aboutthe access use of the remaining public landsbecause of the wilderness study require-ments of section 603 of the BLM Organic Actof 1976. All roadless areas of 5,000 acres ormore, identified by the BLM as possessingwilderness characteristics, are to be classi-fied for wilderness study as potential addi-tions to the National Wilderness PreservationSystem. They must be managed so that theirwilderness character is preserved until thefinal administrative and legislative reviewsare completed. The interim management ofthese areas restricts any uses that mightdamage their wilderness value. Consequent-ly, most surface access uses and transporta-tion modes commonly used to move bulk min-erals are prohibited. Interim restrictions on


access across wilderness study areas coulddelay expansion of Alaska’s surface trans-portation network.

The access provision of the Wild andScenic Rivers Act distinguishes between thecomponents of this system that are managedby the Secretary of the Interior and those thatare managed by the Secretary of Agriculture.Rights-of-way across wild and scenic riversareas that are under the jurisdiction of theSecretary of the Interior are governed by theaccess provisions applicable to the NationalPark System. Rights-of-way over componentsthat are managed by the Secretary of Agri-culture are governed by the access provisionsapplicable to the National Forest System.

The classification of a river as wild, scenic,or recreational is made according to certaincharacteristics, including its accessibility byroad; wild rivers are the least accessible,scenic rivers are more accessible, and rec-reational rivers are the most accessible.Rivers are to be managed to preserve thevalues that led to their initial designation andclassification. Therefore, any access use thatmight be detrimental to these values would bediscouraged.

The remaining Federal land managementsystems—the public lands, the National Wild-life Refuge System, and the National ForestSystem—all have specific statutory authorityto grant access across management areas.

TRANSPORTATION AND MINERAL RESOURCE DEVELOPMENT

Problems stemming from Alaska’s limitedtransportation system are compounded bythe lack of long-range transportation plans.Access constraints on mineral-related activ-ities are greatest in those regions wherethere is no surface bulk transportation.Where some surface transportation alreadyexists, the potential for mineral resourcedevelopment could be expanded through theimprovement of existing facilities to allowmovement of minerals on a large scale.2

ZThere are, of course, many other factors that havedeterred mineral resource development in Alaska andthere 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 UsePlanm”ng, the (D12) Lands, and Alaska Resources; SomeEconomic Considerations, Federal-State Land Use Plan-ning Commission for Alaska, August 1977; John V. Kru-tilla and Sterling Brubaker, Alaska Nationcd InterestLand Withdrawals and their Opportunity Costs, Febru-ary 1976, reprinted in House Comm. on Interior and In-sular Affairs, Subcomm. on General Oversight andAlaska Lands, Background Information for AlaskaLands Designations, 95th Cong., 1st sess., (Comm. PrintNo. 4, 1977) at 158; and Paul Engelman and BradfordTuck with Jerry D. Kreitner and Dennis M. Dooley,Transportation and Development of Alaska NaturaJ l?e-sources, Federal-State Land Use Planning Commissionfor Alaska, March 1978.

Legislative designation of new additions tothe national conservation systems will affectthe availability of Federal lands for transpor-tation systems. Rights-of-way across lands inconservation classifications are not availableunder the same conditions as rights-of-wayacross unreserved public lands.

Decisions about the size, costs, routes, andassociated land use of major transportationsystems cannot be made without appropriategovernmental planning. Alaska is now in theprocess of assessing various proposals formeeting statewide transportation needs.

Legal, physiographic, and engineering con-siderations can dictate the choice of oneroute over another. Although proposed na-tional conservation units may include somenatural access routes, it is not presentlypossible to determine which routes will beneeded to serve future community and re-source development needs. The Federal-StateLand Use Planning Commission for Alaska(FSLUPCA) was given a statutory mandate toidentify transportation routes and necessaryeasements. It concluded that the State’s eco-nomic and transportation needs were not suf-


ficiently defined to designate specific trans-portation corridors. 3 Until the informationnecessary to formulate long-range planning isavailable, there can be little certainty aboutwhen and where future transportation facil-

ities should be built. The lack of such informa-tion will hamper decisionmaking by Congressand Federal land managers, as well as bynon-Federal landowners and mineral re-source developers.

ACCESS POLICY OPTIONS

Five general legislative access policy op-tions (see table 5) were developed to presenta range of approaches to the policy questionof whether and for what purposes accessshould be permitted across Federal lands inAlaska. These access options deal only withAlaska lands.

The legislative access options are:

1.

2.

3.

4.

The application of existing access poli-cies to Alaskan additions to national con-servation systems.

A deferral of congressional action on anaccess policy for Alaskan conservationsystem lands.

Limited provisions for Alaskan accessneeds.(A) An Alaska Lands right-of-way pro-

vision; and(B) The exclusion of access routes from

conservation system classificationsby means of boundary adjustmentsand land exchanges.

Alaskan transportation system accessprovisions.(A) An Alaskan transportation system

right-of-way provision;(B) The designation of specific trans-

portation corridors to accommo-date the development of the trans-portation system; and

(C) The establishment of a special com-mission to review and recommend

3Federal-State Land Use Planning Commission forAlaska, “The D-2 Book,” Lands of National Interest inAlaska, May 1977, at 129.

rights-of-way for transportationsys tems through conservat ionlands.

5. The restriction on the use of Alaskanconservation system lands for access.

In developing and selecting these accesspolicy options, five common components ofeach option were identified. The five com-ponents are:

1. The access policy decision—whether ornot to permit the use of Federal lands foraccess use.

2. The timing of the policy decision.

3. The legislative implementation of thepolicy decision.

4. The executive implementation of the leg-islative policy decision.

5. The relation between the access policyand how Alaskan transportation systemdecisions are to be made.

The central component of each option iswhether or not to allow the use of Federallands for access purposes. If allowed, accessis authorized through the grant of a right-of-way or permit to cross Federal lands to reachnon-Federal lands. Congress may choose toallow or to deny access, or it may adopt acombination approach which allows accessin some instances and denies it in others. Thiscould be done by imposing conditions on al-lowable access for a certain class of users, orpurposes, or for particular geographic re-gions or conservation units.


The second component is the timing of con-gressional action. Congress could decide nowon an access policy as part of the d-2 legisla-tion or it could pass legislation specificallydeferring a decision on either the accessissue alone or on the entire d-2 lands pro-posals. Congress could also decide not to takeaction on the d-2 lands proposals, an accesspolicy, or a specific deferral of the accessdecision.

The third component is the selection of alegislative approach for implementing the ac-cess policy decision. There are three ways inwhich Congress can implement its accesspolicy decision. The first is to take no specificlegislative action on access. This would bedone by making no provision in the d-2 landslegislation for access use of lands designatedfor conservation systems. The effect of thisapproach, in the absence of express legisla-tive provisions, would be to extend by impli-cation the existing laws and institutionalmechanisms that control the access uses ofdesignated lands. For example, the classifica-tion of some d-2 lands as wilderness woulddeny indefinitely most access uses in thoseareas by the operation of the Wilderness Actprohibitions. On the other hand, placing thesame lands in a system with a broad purposeright-of-way provision would imply that ac-cess across these areas would be allowed, inthe discretion of the managing agency, underexisting laws.

The second legislative approach would beto enact a specific provision setting forth theconditions for the access use of Alaska lands.This could take the form either of a new sepa-rate provision of law or of an amendment toan existing law governing Federal land man-agement systems. The specific additionalaccess assurances or limitations would be inaccordance with the basic access policyadopted by congress.

The third legislative approach would be torely on existing laws and policies, but to in-crease legislative oversight to ensure that thecongressional intent is carried out. Remediallegislation could be enacted if and when ex-

isting access provisions appeared to be inade-quate.

The fourth component is the selection of anapproach for executive implementation of theaccess policy decision. This entails first nam-ing an agency or a department to carry outthe legislative policy, and then adopting adecisionmaking process for implementation.[This designation of an agency and a proce-dure can be express or implied.) If there is nocontrary legislative declaration, additions toexisting national conservation systems—Na-tional Parks, Refuges, Forests, Wilderness,and Wild and Scenic Rivers Systems—aremanaged by the departments and agenciescurrently responsible for the management ofeach of these systems under existing lawsand procedures.

Congress could also modify existing agen-cies and procedures or establish a new man-aging agency or decision process, An exam-ple would be the establishment of a joint Fed-eral-State commission to review and coordi-nate the access uses of Alaskan conservationsystem lands. Such a joint commission wouldbe a new executive body and its reviewingauthority would be a modification of the ex-isting decision process.

The fifth component is the relationship be-tween the access policy and how Alaskantransportation system decisions are to bemade. The need for transportation, the selec-tion of mode and routes, and the method forfinancing the system are all determinedunder the existing decisionmaking apparatusof the Department of Transportation (DOT).4

Congress can continue the existing institu-tions and procedures, or it can modify the ex-isting situation, for example, by adding a jointcommission or advisory panel to the decisionprocess, or by requiring congressional reviewand approval of transportation system pro-posals involving the use of d-2 lands. Con-gress can also expressly set a transportation

4See discussion of section 4(f) of the Department ofTransportation Act in chapter 6 for a description oftransportation decisionmaking procedure.


policy by banning the construction of surfacetransportation systems on conservation sys-tem lands. This ban would have the effect ofrestricting the choices of both the mode andthe routes of potential transportation sys-tems. Another possibility is that Congresscould specifically encourage a mode or route.This could be done, for example, by includinga right-of-way provision for the possiblefuture expansion of the Alaska railroadthrough certain conservation system units.

There are a number of additional condi-tions that could be included in developing ac-cess policy options for Alaskan lands. Some ofthese are:

●

●

●

●

political-approval and review by local,State, and/or Federal bodies could berequired as a prerequisite to grantingaccess.

Environmental—environmentally ac-ceptable construction standards couldbe required (both on and off Federallands) to minimize damage to protectedscenic, ecological, and wildlife areas.

Economic—the disclosure of financialand ownership information could be re-quired for right-of-way permits; trans-portation systems could be required tobe wholly or partially financed by bene-ficiaries; Federal aid or direct grantscould be provided for transportationprojects to serve conservation systemsand mineral development; loan guaran-tees or other financial incentives forAlaskan transportation systems could beprovided.

Administrative—time limits could be im-posed for processing applications for ac-cess permits and rights-of-way, andagencies could be required to coordinatetheir review of all applications; seg-

●

●

mented approvals of large-scale projectsthat cross several management systemscould be limited.

Long-range planning—State and localgovernments and Native Regional andVillage Corporations could be requiredto submit long-range plans for accessand other future resource developmentneeds to minimize ad hoc decisionmakingon transportation systems and the prolif-eration of access routes.

National security —special access ex-ceptions for emergencies such as na-tional defense needs or critical mate-rials shortages could be provided.

Each of the access policy options is dis-cussed below. The discussion includes the op-tion, its modifications, its advantages anddisadvantages, and the potential effects onmineral exploration and development activ-ities. Each option was structured to present aparticular approach to the access issue sothat its advantages and disadvantages wouldbecome more apparent. No single option wasdesigned to meet the needs of all interestgroups. Consequently, a combination of sev-eral options may prove to be the most com-prehensive approach to the dual character-istic of access—the access needs of non-Fed-eral landowners to cross Federal areas toreach their lands and the potential broaderneed to construct major transportation sys-tems across Federal areas to serve economicdevelopment and community needs.

It should be kept in mind, however, that thechoice of an access policy for Alaska d-2lands involves a balancing of many competinginterests and values, not just the accessneeds for the development of hardrock miner-al resources of non-Federal lands, which isthe focus of this assessment.


OPTION l–THE APPLICATION OF EXISTINGACCESS POLICIES TO THE ALASKAN ADDITIONSNATIONAL CONSERVATION SYSTEMS (STATUS QUO)

Option 1, or the status quo approach,would extend the existing access policies ofFederal land management systems to the con-servation systems additions. Congress woulddesignate specific areas as parks, wildliferefuges, forests, wild and scenic rivers, orwilderness areas. No express legislative ac-cess provision is needed to extend the ex-isting land management system access poli-cies to the new additions. Special access pro-visions that relate to management program,administrative, or recreational access pur-poses could be included without altering thebasic thrust of this approach. An example ofsuch a special provision would be an excep-tion for the established use of snow machinesor aircraft in wilderness areas for recre-ation, local travel, or subsistence purposes.

To implement this policy, the managingagency of each system would apply the right-of-way and access authorities, regulations,and procedures now in force. This optionwould continue the variations in access poli-cies that currently exist among the differentFederal land management systems.

Under Option 1, grants of access wouldcontinue to be made on a case-by-case basis,and the determination would depend on thespecific circumstances of each application.Requests for the use of Federal lands for thedevelopment of transportation systems would

be evaluated under the existing decisionmak-ing processes. The most available Federallands for access needs would be NationalForest System and public (d-1) lands, exceptthose in wilderness study or other limited-useclassifications. Right-of-way approval is leftto the discretion of the managing agency. Theuse of wilderness areas for transportationroutes would require congressional approvalin most cases. The use of park, refuge, or wildand scenic rivers systems lands for accessmust be consistent-with the purposes of thesystem. The grant of access is left to thediscretion of the agency. Furthermore, theuse of park and refuge lands would be subjectto a 4(f) review for DOT-funded projects.5

Planning, approval, and construction oftransportation systems would continue to bethe responsibility of existing State and Feder-al transportation agencies and departments.

The extension of existing access policies toAlaskan conservation units does not meanthat those policies are fixed in their present

%ee discussion of section 4(f) of the Department ofTransportation Act in chapter 6. DOT 4(f) review is anindependent review to determine whether there is aprudent and feasible alternative to a proposed use ofpark, refuge, or recreation lands, or a historic site for atransportation project. If not, then DOT funds can onlybe expended if every effort has been made to minimizedamage.

Ch. 7 Options for Congressional Consideration .225

form. Current laws could be modified in re-sponse to specific access problems, to new in-formation generated from the ongoing Alas-kan Mineral Resources Assessment Program(AMRAP), to wilderness and transportationplanning studies, or to changes in congres-sional or public sentiment. Congress mayenact legislation to review or to change theaccess provisions of Federal land manage-ment laws. Moreover, under the broad dis-cretionary management authority vested inthe Secretary of the Interior and the Secre-tary of Agriculture, some access policies andregulations may be changed administrativelyin response to specific problems.

Under this option, the shortcomings anduncertainties of the access provisions in theexisting laws would continue. Consequently,mineral exploration and development activ-ities on non-Federal lands in isolated areas,where it might be necessary to cross park orwilderness lands, might be deferred or aban-doned. By settling the question of the manage-ment system classification for most of Alas-ka’s remaining lands, the d-2 land designa-tions would reduce some of the uncertaintiesabout access.

Transportation system planning and devel-opment would continue at its current pace

under this option. There would also be im-provements in existing transportation sys-tems. Ad hoc decisions to allow the accessuse of Federal lands, such as the Trans-Alaska Oil Pipeline authorization, could oc-cur in response to specific needs.

The effects of implementing Option 1 willvary according to the area and system in-volved. In some areas (such as nonsur-rounded isolated lands in some wildernessareas and parks) access uses may be deniedwithout any express congressional action. Inother areas, access to non-Federal minerallands will be unaffected or at least reason-ably available, as long as the existing trans-portation systems can be improved, as neces-sary, for mineral resource development,6 andthere are no blockages by tracts of Federallands. As roadless BLM-public land areas areidentified and placed in the protected wilder-ness review category, the availability of ac-cess across d-1 lands could become a futuresource of uncertainty for resource devel-opers.

‘Recognized rights-of-way, established by public useas roads or trails before the 1976 repeal of 43 U.S.C.932, are existing access rights and thus should be unaf-fected by d-2 land designations.

OPTION 2–THE DEFERRAL OF CONGRESSIONALCONSIDERATION OF AN ACCESS POLICY FOR ALASKAN

CONSERVATION SYSTEM LANDS

ACCESS TIMING OF IMPLEMENTINGPOLICY ACCESS LEGISLATIVE INSTITUTIONAL TRANSPORTATION

DECISION DECISION IMPLEMENTATION ARRANGEMENT SYSTEM DECISIONSpecific deferral of ac- Deferral-now; Access Specific deferral provi- Existing institutions. Existing decisioncess policy involv- decision--later. sion in d-2 Iegisla- mechanism--transpor-ing d-2 designations tion. tation systems use ofand remaining Federal Federal d-2 Iandslands in Alaska until a delayed until policycertain date, or some decision.event in future, or in-definitely.


Under Option 2, Congress would specifi-cally defer the question of the access use ofAlaskan conservation system lands. Thereare several means of deferral. In enacting thefinal d-2 designations, Congress could includea provision specifically deferring the adop-tion of an access and right-of-way policy forAlaskan conservation system units for futureconsideration. This delay could provide timefor new and ongoing studies to be completedand for specific Alaskan transportation sys-tem project proposals to be prepared. (Alter-natively, Congress could delay action on thed-2 proposals and extend the legislative“deadline” imposed by the expiration of d-2withdrawals on December 18, 1978.) In addi-tion, Congress may specify the procedure tobe used in its future considerations of the ac-cess issue. In the interim, existing accesspolicies could be applied to the d-2 additionsto the conservation units, or alternatively, thedeferral could be combined with a morato-rium on agency approval of any nonessentialaccess use of Alaska National Interest Lands.

If no moratorium on nonessential accessuses is imposed, Option 2 is similar to Option1 in that the access policies of existing landmanagement systems are applied to Alaskanconservation system additions. However, bydeferring the decision on the final accessterms and conditions, Option 2 continues theperiod of uncertainty about access policies ofsome Federal lands. This uncertainty coulddiscourage the expansion of mineral explora-tion and development in affected regions.This option also allows time for specificstudies to be completed (such as AMRAP andwilderness reviews), for final Native andState landownership patterns to be deter-mined, and for State transportation planningto proceed.

The advantage of this option is that itwould assure future congressional review ofthe access issue and thus would provide anopportunity for the consideration of addi-tional detailed information and for the emer-gence of clearly defined access needs. Thetime for such a reconsideration could be setat some future date, such as in 2 or 10 years;

or in a specific year, such as 1990. It could bebased on some future event, such as the com-pletion of ongoing and proposed studies deal-ing with Alaskan resources and transporta-tion issues; completion of the AMRAP sur-veys; the final conveyance of the State andNative land selections; the completion ofState or regional transportation plans; or thecompletion of the approved managementplans for the new units added to conservationsystems.

As part of the deferral, Congress could re-quest new studies and recommendationsabout access policies from the land manage-ment agencies, from the State, or from a com-mission specifically established to deal withaccess questions in Alaska. The studies couldinclude an examination and report on needs,on routes, on possible system modes, and onfinancing arrangements. The continuation ofFSLUPCA or the establishment of a specialadministrative task force to conduct thestudies could provide opportunities for theparticipation of interested groups.

Under Option 2, existing land managementagencies would be responsible for both the in-terim policy implementation and for the man-agement of the designated additions. If a spe-cial commission or a task force is established,it would operate in conjunction with existingState and Federal institutions responsible forland management and transportation systemdecisions.

Congress could also include in this optionthe institutional mechanisms under whichfuture legislative review would be conducted.Two examples of such mechanisms are the“legislative deadline” for action on the d-Zland withdrawals in ANCSA and the reviewmechanisms in the Trans-Alaska Pipeline Au-thorization Act and the Alaska Natural GasTransportation Act.’

The chief advantage of this option is thatdeferring consideration of the access issuesassociated with the d-2 land additions pro-vides more time for resolving a number of the

7See discussion of these Acts in chapter 5.


uncertainties that have troubled the debatesover Alaska’s future. These uncertaintiesarise from a lack of information about suchfactors as final landownership patterns, min-eral resources, and transportation needs androutes, as well as from a lack of a clear com-mitment, either governmental or private, tothe economic development of Alaska’s hard-rock mineral resources in the near term(pre-1990). The potential active mining opera-tions have not as yet been identified, and con-sequently, the associated transportation andother needs also have not as yet been deter-mined. Additional time could permit a morespecific legislative response. In the interim,national resource lands would be protected,and the management classifications of ap-proximately half of the Federal land inAlaska would be settled. Even though d-2 landdesignations will answer the question con-cerning which of the land management sys-tems will control certain areas of Federalland in Alaska, there will still be uncertain-ties over Federal land management policies.

Management plans must be prepared forthe d-Z conservation system additions. Theseplans might include proposed facilities thatcould be coordinated with the transportationneeds of surrounding regions. Areas withspecial environmental, wildlife habitat, ar-cheological, and historic values could be iden-tified so that adequate measures to protectthese areas could be incorporated into the ac-cess policy for each management unit.

It is probable that, under section 603 of theBLM Organic Act, large areas of wildernesson the remaining d-1 public lands will be in-ventoried and studied for inclusion in the Na-tional Wilderness Preservation System. In-terim protective management of these landswill limit their availability for access pur-poses.

There is very little detailed informationabout the mineral resources potential ofmany areas of Alaska on which to base trans-portation planning. It is now anticipated thatAMRAP surveys will not be completed untilafter 1990. Private mineral exploration ef-

forts, to date, have been substantial, butuncertainty remains about which areas, ifany, will be developed. Alaska has estab-lished a Department of Transportation and isworking toward developing a State transpor-tation plan and a set of priorities. Deferralwould allow time for both State and privateefforts to proceed. This would improve the ef-fectiveness of the information on which thefinal decision is based.

If extensive park and wilderness designa-tions are made, the deferral of a final accesspolicy decision for Alaska lands could pro-vide the mechanism under which the ade-quacy of existing access policies could beevaluated and specific needs to cross theselands could be addressed. In the meantime,the lands would be protectively managed andthe existing access policies would be con-tinued.

Option 2 also has several disadvantages.One of these is caused by the continued un-certainty about whether and under what con-ditions Federal conservation systems landscan be crossed to reach non-Federal lands, orcan be used for transportation systems. Thecontinued uncertainty about the availabilityof Federal lands will delay the commitment ofresources for the planning and evaluation ofproposed transportation systems that wouldrequire the use of Federal lands.

Many of the ongoing and projected studiespreviously mentioned could proceed inde-pendently of any access decision deferral.Consequently, the information base will con-tinue to expand. But even after completion ofthese studies the amount of additional in-formation that might have an influence on theaccess policy decision may not be substantial-ly increased over what is presently known.For example, AMRAP surveys are, at best,only superficial inventories because their ex-penditures and focus are not sufficient toascertain the exact economic mineral poten-tial of an area or its likelihood of develop-ment.

Uncertainty about the availability of futuretransportation routes could deter the expan-


sion of some mineral exploration and develop-ment in those areas where no alternativetransport system has been proposed. Even ifduring the period of deferral no moratoriumwere to be placed on access uses, many suchuses would be limited because an agencymight be reluctant to approve any nonessen-tial rights-of-way or easements for transpor-tation systems, which might be contrary to aneventual congressional policy.

Another means of delaying an access poli-cy decision is to defer passage of AlaskaLands legislation. (As discussed previously,an access policy is inherent in the d-Z landsdesignations.) However, in the judgment ofthose familiar with the mining industry, con-tinued uncertainty about the access policy

OPTION 3–LIMITED PROVISIONS

Congress could provide some relief fromthe anticipated effects of the application t oAlaska lands of the existing access and right-of-way policies of Federal land managementsystems. This would ease the impact on thosenon-Federal landholders who could be af-fected by the establishment of large areas ofprotectively managed Federal lands. Two ap-proaches are considered here: The first, Op-

and management classification of adjacentFederal lands would discourage mine plan-ning and add to the long leadtimes involved inplanning, developing, and constructing largemines (as long as 10 to 20 years according toindustry sources).8

This view was confirmed during interviews con-ducted by Dr. F. J. Wobber, OTA project director, inJanuary 1977. Meetings were held with the staff of theCollege of Mineral Industries, and Minerals IndustryResearch Laboratory, University of Alaska, with Dr. C.Hawley, Alaska Miners Association; and with othersfamiliar with mining. Additionally, interviews con-ducted in Arizona, Colorado, and Wyoming in May1977, suggested that similar views were widely held bymining groups outside of Alaska. A list of persons andgroups interviewed during the course of this assess-ment is included in appendix C.

FOR ALASKAN ACCESS NEEDS

tion 3A, provides for a special right-of-wayprovision for Alaska natural resource landsthat would be applicable to all Federal con-servation systems in Alaska; and the second,Option 3B, provides for the exclusion oftransportation system routes from conserva-tion systems classification by making minorboundary adjustments and land exchanges.

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

-- 2.

.=, - ,


Option 3A provides for a special right-of-way authority that would modify the existingaccess policies as they apply to Alaska, thusgiving a legal assurance of access to non-Fed-eral landowners who might need to cross con-servation system lands. A major purpose ofthis option is to provide land managementagencies with the clear authority to grantrights-of-way across Federal lands to reachmineral resources on non-Federal lands. Thisprovision would partially address the short-comings identified in the access authorities ofcertain systems (such as parks, wilderness,and some wild and scenic river components)and with those systems (such as refuges andnational forests) that have an adequate, butdiscretionary, right-of-way authority, whichrequires the satisfaction of certain standardsof compatibility.

This special right-of-way authority wouldassist those landowners requiring accessacross Federal lands to non-Federal lands. Itwould remedy the shortcomings of some ex-isting right-of-way provisions, such as thelack of any clear statutory permission togrant rights-of-way over National Park Sys-tem lands for access to non-Federal lands.This option also addresses those instanceswhere Federal landownership patterns, to-pography, transportation, and other localsite-specific circumstances might combine toisolate non-Federal lands. If these lands arenot “wholly surrounded” by a single Federalsystem, or subject to existing rights, the ac-cess guarantees written into the WildernessAct may not apply because the situations arenot within the exact letter of the law. In suchcircumstances, this special right-of-way pro-vision could be invoked to permit the neces-sary access.

As part of the implementation of the Nativeclaims settlement and statehood land grants,this special right-of-way provision would en-sure that there would be adequate access tonon-Federal lands and to the transportationroutes needed for their development. Thisprovision would allow access through adja-cent Federal lands to the owners of lands thatabut on several Federal land systems, but

which are not surrounded by any single oneof them. The Federal land manager would beable to require specific terms and conditionsto protect Federal land values. The implemen-tation of this provision should be carried outin the spirit of the land grants. In the samespirit, the provision would allow for thewaiver of right-of-way rental payments, forreciprocal access agreements, and for theuse of program facilities for access, such asFederal agency docks, roads, and airstrips.

The unprecedented Alaska Native andState land grants were made by Congresswith the intent that the future development ofthe resources of these lands would form thebasis for the economic independence of theState and of the Native Corporations. To con-vey these lands without reasonable assur-ance of the continued ability to reach and de-velop the resource potential would conflictwith the promise of the original grants.

Both the State of Alaska and the NativeCorporations have reasonable and under-standable demands that the management ofthe remaining Federal lands in the State notconstrain development activities on non-Fed-eral lands. At the same time, other groupscontend that activities on non-Federal landsshould not be allowed to threaten the presentand future value of Alaska’s wildlife, primi-tive wilderness, and other natural resources,which would be preserved and protectedunder proposed d-2 legislation. Congress isfaced with balancing these potentially con-flicting demands.

Option 3A is an example of an approachthat is intended to balance the demands fordevelopment and conservation. This could beaccomplished as follows:

●

●

Through a right-of-way provision, exclu-sively applicable to Alaska, that wouldensure adequate access to non-Federallands isolated by Federal holdings, to-pography, or transportation system pat-terns; and

By requiring that any access grantswould ensure that the natural resources,


esthetic, and other values of the Federallands would be protected.

In balancing the conflicting interests, Con-gress might choose to limit this access provi-sion by imposing various other conditions,such as:

Limiting the application of the provisioneither to certain systems or to geograph-ical areas, e.g., to refuges, to forests, tononwilderness areas, or to specific unitsor regions;

Limiting the use of the special accessprovision, e.g., only to State and/or Na-tive Corporations, or only to owners ofsurrounded and adjacent lands, or onlyto owners of all isolated lands (landswholly surrounded by Federal lands orconstrained by other legal, topographi-cal, or transportation-imposed condi-tions); or

Limiting the purposes of access, e.g., forpublic access use, for the development ofcertain resources, or for the develop-ment and requirements of a transpor-tation system.

For the purposes of discussion, the follow-ing right-of-way provision was selected as anexample of this type of approach. Legislationdesignating additions to conservation systemsin Alaska would include a provision that au-thorizes the Secretary of the Interior or theSecretary of Agriculture to grant rights-of-way to owners of surrounded or otherwiseisolated non-Federal lands where access isnot otherwise reasonably available; or to theholders of valid resource development rightsfor such lands. The factors to be consideredin an agency’s determination of whether thisprovision can be applied include, but are notlimited to: local landownership patterns; thepurposes of the management systems in-volved; geography; the direction of and thedistances from the closest adequate transpor-tation network; topography, seasonal con-straints, transportation, and population char-acteristics of the region; the purpose of theright-of-way; and whether alternative means

of access are available under the circum-stances.

If, for example, a Native Corporation, or itsassignee, seeks access across Federal lands,and there are alternative routes over State orNative lands, it would be proper under thisoption to inquire whether any effort wasmade to obtain the right to cross these otherlands. The environmental impacts of the deci-sion would be evaluated, and the applicantwould bear the costs related both to construc-tion and to environmental protection. The re-quirement for payment of a fair rental valuefor the right-of-way might be waived if thepublic interest is served.

This provision, as a part of the d-2 landslegislation, would apply to conservation sys-tem lands (national parks, refuges, forests,wilderness, and wild and scenic rivers sys-tems). Rights-of-way across the remainingpublic lands would be evaluated under theBLM Organic Act, or dealt with in separatelegislation. Access would be available toreach isolated lands or to reach the nearestreasonable transportation network. In con-sidering reasonable alternatives, rights-of-way in common could be required. The iden-tification of potential access needs would beincluded in the management plan for the unitsin each of the land management systems. Theexisting Federal land management agencieswould implement the provision. Applicationsfor a right-of-way would be filed with theagency managing the unit to be crossed.Where multiple units were involved, the ap-plicant would have to obtain a right-of-wayfor each. However, departmental regulationscould provide for coordinated review of ap-plications involving more than one manage-ment agency.

Applications and decisions on the avail-ability of conservation system lands for thedevelopment of major transportation systemswould not be covered by this special right-of-way provision. Approval for the constructionof transportation systems across Federallands either for use by the general public orfor regional mineral development, would be


made under existing State and Federal laws.Routes through wilderness areas would re-quire specific congressional exemption. Thisoption provides non-Federal landowners withan assurance of necessary access through

Federal lands. It should be interpreted broad-ly to assure Alaska landholders of reasonableaccess to their non-Federal lands for re-source development.

OPTION 3B–THE EXCLUSION OF ACCESS ROUTES FROMFEDERAL CONSERVATION SYSTEMS BY MEANS OF BOUNDARY

ADJUSTMENTS AND LAND EXCHANGES

ACCESS TIMING OF IMPLEMENTINGPOLICY ACCESS LEGISLATIVE INSTITUTIONAL TRANSPORTATION

DECISION DECISION IMPLEMENTATION ARRANGEMENT SYSTEM DECISIONLocal realinementofconservation systemsboundaries to excludeaccess routes. Landexchanges to provideaccess routes for non-Federal landowners,with exact locationsincluded in d-2 desig-nations, or by refer-ence to maps filedlater.

Now Provisions of d-2 Iegis- Existing institutions Existing transportationIation; or new land decision mechanism—exchange authority. local boundary shifts

would leave accessroutes as public lands(d-1 classification) withfewer use restrictionsthan parks, etc., andalso available for laterState selection. DOT4(f) review of route notrequired in mostcases; land exchangewould put route innon-Federal owner-ship.

Another approach to dealing with access isto exclude those lands that encompass natu-ral, historic, or proposed access routes fromFederal conservation systems. There are twoprimary means of accomplishing this. Thefirst approach is to adjust the boundaries ofparticular conservation units so that theroute is left out of the restrictive classifica-tion and is continued in public land status.This would make the route available for Stateselection or for application for a transporta-tion system right-of-way under existing laws.The second approach is to allow non-Federallandowners to acquire the necessary accessroutes from the Federal Government by ex-changing some of their lands for Federallands. This would place access routes undernon-Federal control. Since both Native Corpo-.

rations and the State have existing rights toselect Federal lands, a provision allowing theexchange of selected lands for necessary ac-cess routes to serve non-Federal lands wouldbe one reasonable mechanism of conveyance.

The access route exclusion would be ac-complished by specifically designating routesin the d-2 lands legislation. The excludedroutes would be identified by specific legaldescriptions contained in the legislation or in-corporated by reference to the final conser-vation system unit maps that would be com-piled by the departments involved and filedwith Congress within a reasonable period oftime subsequent to the legislation. Under theproposals currently before Congress, Federalland management departments would file

maps and legal descriptions of final bound-aries after the State and Native conveyancesare completed.

The implementation of the option to ex-clude access routes from conservation sys-tems would be part of the general responsibil-ities of existing agencies under ANCSA andthe Federal land management laws. TheState, Natives, and other interested partieswould have an opportunity to comment onproposed exclusions before the final bound-aries were submitted to Congress. The finalmaps and reports would be subject to con-gressional disapproval. Transportation sys-tem decisions involving the excluded routeswould be made under existing laws, and ap-plications for rights-of-way over lands thatare not excluded would be evaluated underexisting laws. The provision would set forth

the express criteria and the specific findingsof fact that would be required to supporteach boundary adjustment.

These findings could include that:

1.

2.

3.

The area to be excluded is a natural, his-toric, or proposed access route (should aproposed transportation system not beconstructed within a certain number ofyears, the land would revert to the origi-nal land conservation system);

No other route is reasonably available(reasonableness would be determined byconsidering such factors as those de-scribed in the option for the AlaskaLands right-of-way, Option 3A);

The proposed exclusion and its proposeduses do not threaten the protected val-ues of the conservation unit involved;

Ch. 7 Options for Congressional/ Consideration ● 233

4. Adequate provisions exist to protect en-vironmental values and conservationunits from the detrimental effects oftransportation system development; and

5. The national interest would be served bythe exclusion.

There is an inherent conflict in this ap-proach. Some areas that contain natural ac-cess routes also possess considerable scenic,esthetic, wildlife, historic, and archeologicvalues that should be preserved. But thissame land may also be the most reasonablelocation for a future surface transport route.In such a case, because of the land’s uniquevalue, the route would not meet the proposedtest for administrative exclusion. For exam-ple, in Alaska, the proposed Kobuk Valley Na-tional Monument, Gates of the Arctic Park,and Selawik Wildlife Refuge contain majorconservation values, yet they abut on or arecrossed by the Kobuk River and other naturalaccess routes. Excluding these access routescould weaken the degree of protection of theremaining lands; therefore any exclusion of atransportation corridor in these areas wouldrequire express congressional action.

Another complicating factor in the evalua-tion of particular routes is the uncertainavailability of the remaining public lands.Under section 603 of the BLM Organic Act,all roadless areas of 5,000 acres or more thatare identified in the inventory of public landsare to be placed in a wilderness study classi-fication, which would be managed to pre-serve those values, pending administrativeand legislative review of their inclusion in theNational Wilderness Preservation System.Wilderness review and potential wildernessdesignation may restrict the use of theselands in the future. Thus, their availability asaccess routes is not guaranteed. The exclu-sion of access routes to maintain their publicland status would not absolutely guaranteetheir availability. But, a prior congressionalexclusion would be a factor to consider dur-ing any future wilderness review.

Boundary adjustments could accommodateboth Alaska’s transportation needs and the

establishment of new conservation systemunits, by drawing the boundary lines for con-servation systems, such as parks and refuges,so that natural, historic, and proposed trans-portation corridors (key mountain passes andriver valleys) would be excluded. This exclu-sion leaves these routes classified as publiclands. Such classification reduces the reviewand authorizations required for using theselands for transportation systems, if a demandshould arise for a specific route. Proposedtransportation projects on Federal lands thatare classified as parks or refuges would re-quire a DOT 4(f) review by the Secretary ofTransportation.

At present, the problem with a boundaryadjustment alternative is that the locations ofmany future transportation routes are specu-lative and controversial. This is because theneeds and the timing of Alaska’s resource de-velopment are not yet clearly defined andfuture transportation plans and prioritieshave not been adopted. There is currently nostatewide consensus on the goals and priori-ties of expanded surface transportation.Many Native groups would oppose the devel-opment of a surface transport network be-cause of the possibility of increased pres-sures on subsistence resources and rural life-styles. However, some of these same groupsmay eventually need access to develop the re-sources on Native-owned lands.

Another method of excluding access routesfrom conservation classification is to author-ize land exchanges in order to provide accesscorridors to surrounded or isolated landhold-ers. If mineral-bearing lands were involved, asimple exchange might not be adequate be-cause some of the lands that might be ex-changed were selected specifically for theirresource potential. If lands of similar valuewere exchanged for an access corridor thenon-Federal landowner could increase theland’s mineral development potential.

With the exception of large-scale land ex-changes by the State, the exchange provisionwould probably leave most problems asso-ciated with access across Federal lands for


regional transportation systems unresolved.In regions, such as northwest Alaska, a re-gional surface transportation system with itssupporting feeder routes is likely to crossmultiple land management systems and betens, if not hundreds, of miles long. Ex-changes of such magnitude, as a means ofsecuring a needed transportation corridor,would probably be both ineffective and un-reasonably complicated. This approach, how-ever, does offer some relief for local accessproblems, and might facilitate mineral ex-ploration and development of non-Federallands in some areas.

Non-Federal landowners seeking to ex-change selected lands would request such anexchange from the Secretary of the Interior(in the case of public lands, refuges, andparks) and from the Secretary of Agriculture(for national forests). Approvals would be re-quired to be supported by findings such as thefollowing:

1. The non-Federal lands had been selectedand approved or conveyed under eitherthe Alaska Statehood Act or ANCSA;

2. The State or Native owner requests theexchange of lands to provide accessroutes to other non-Federal lands;

3*

4.

5.

6.

7.

8.

The lands to be exchanged are approx-imately equal in value; if not, a paymentof the difference in cash may be re-quired or waived at the discretion of theSecretary;

The area to be exchanged is a natural,historic, or projected transportationroute to non-Federal lands;

No other route is reasonably available;

The proposed exchange poses no threatto the protected values of any conserva-tion unit;

Adequate measures exist to protect envi-ronmental values and conservation unitsfrom the effects of access use; and

The national interest would be betterserved by the exchange.

The national interest includes the imple-mentation of policies for the development ofthe lands granted to the State and to the Na-tives. These policies are reflected in the Stateand Native land grants which are to serve asa basis for the economic independence of theState and of the Native Corporations.


Under Option 4, congressional authoriza-tion is specifically provided for the use of con-servation system lands where needed for thedevelopment of statewide or regional surfacetransportation systems. An access provisionfor Alaskan transportation systems wouldminimize some of the problems associatedwith traversing lands managed by differentagencies under several land management sys-tems and access policies. This would be doneby establishing a single standard for the ap-proval of transportation system rights-of-wayfor all conservation system lands.

Congress might choose to provide for theuse of Alaska National Interest Lands so thattransportation network systems can be devel-oped to serve the economic needs of non-Fed-eral interests in Alaska. Several approachesare examined here: first, the enactment of aright-of-way provision for an Alaskan trans-portation system that would be applicable toall Alaska conservation system lands; second,the reservation of specific transportation cor-ridors through d-2 lands; and third, the estab-lishment of a new institutional mechanism fordecisionmaking on proposals for crossingconservation system lands.

OPTION 4A–AN ALASKANTRANSPORTATION SYSTEMRIGHT-OF-WAY PROVISION

This option would enact a single transpor-tation system right-of-way provision thatwould be applicable to all Alaskan conserva-tion system units including those classified aswilderness. This provision would authorizethe Secretary of the Interior (for park andrefuge lands) and the Secretary of Agricul-ture (for forest system lands) to grant rights-of-way for transportation system purposesover lands in the national conservation sys-tems. Specific conditions would require afinding that no other route is reasonablyavailable, and an assurance that appropriateprecautions will be taken to protect the envi-ronmental, wildlife, and historic values of thelands. These conditions would have to be sat-

isfied before any right-of-way could be ap-proved. Payment of the fair market value forthe right-of-way as well as for the administra-tive costs of reviewing the application andmonitoring construction and use of the right-of-way would be required. Where appropri-ate, the requirements to pay rental and costscould be waived in the public interest. Trans-portation system rights-of-way would beavailable to State and local governments, toNative Corporations, and to private appli-cants.

The Secretaries of the Interior and of Agri-culture would be responsible for implement-ing this policy through the Federal land man-agement agencies. In addition to the approvalof a right-of-way, each proposed transporta-tion system project would be independentlyevaluated by appropriate Federal, State, andlocal agencies. Opportunities would continuefor public participation during the planningand review processes as provided by existinglaw. The Secretary of Transportation wouldconduct an independent review of federallyaided transportation projects that crossparks, refuges, or other protected lands (bothState and Federal). This right-of-way provi-sion in no way diminishes the independent re-sponsibilities of the Secretary of Transporta-tion for the preservation of parks, refuges,and historic sites, under section 4(f) of theDOT Act.

As a further condition of this option, ap-proval of a right-of-way could be made de-pendent on the completion of a comprehen-sive State or regional transportation plan.This option makes Federal conservation sys-tem lands available as needed under a “float-ing” or “blanket” easement right-of-way pro-vision. The Federal lands involved would re-main within the designated land managementsystems in contrast to approaches under Op-tion 3B that would exclude access routesfrom conservation systems classification.

By providing a congressional authorizationfor transportation system rights-of-way, spe-cific routes and modes can be identified andapproved as actual needs arise. This option


permits State, Native, and private interests toplan for transportation and, where economicconditions permit, for resource development.Existing review procedures in the Depart-ments of Agriculture, Interior, and Transpor-tation, and other agencies for transportationsystem needs, routes, modes, and rate regula-tions would be continued. Since federallyaided transportation projects are expected tobe a major component of any Alaskan re-source development, Congress would con-tinue oversight and project authorizationapproval, as well as approval over funds, ex-penditures, and appropriations.

OPTION 4B–THE DESIGNATIONOF TRANSPORTATION CORRIDORS

THROUGH ALASKANCONSERVATION SYSTEM LANDS

The second approach would be to desig-nate specific easements or corridors throughFederal conservation lands and to permit theSecretaries of Agriculture and of the Interiorto authorize the development of transporta-tion systems only within these corridors. Ap-proval of rights-of-way over other conserva-tion unit areas with no designated corridorswould be granted only under the standards inexisting laws. This approach differs from theboundary adjustment of Option 3B in that acorridor remains part of the system andwould include areas where the simple re-alinement of a boundary would be insuffi-cient to exclude an access route. Instead ofmaking specific reservations in d-2 legisla-tion, the final designation of corridors couldbe left open for specific legal description inthe process of preparing management plansand maps of the final boundaries. Therewould be opportunities for participation andreview by State, local, Native, conservation,mineral, and other interests. A reasonableperiod of time would be allotted for the prep-aration and review of corridor descriptions,maps, and management plans. They would beincorporated by reference in the d-2 landslegislation.

Implementation of this option would be byexisting land management agencies. Applica-tions for use of the corridor would be made tothe Secretary of the department having landmanagement jurisdiction over the proposedroute. Decisions about requirements, modes,and financing would be made under existingtransportation laws, but the allowable routesthrough Federal lands would be predesig-nated. If any variation of the route from thedesignated corridor were needed, the approv-al of the variation would be made under exist-ing law. Use of the corridor would be avail-able to State, Native, and private applicantswho demonstrate that they have a need forconstructing a transportation system andthat an alternative route that does not useconservation system lands is unavailable.Independent 4(f) review by the Secretary ofTransportation would be required for feder-ally aided transportation system projects thatuse corridors through State or Federal parkor refuge lands. The adoption of all prac-ticable measures to minimize environmentaldamage from the construction and operationof the transportation system would be re-quired as a condition of right-of-way ap-proval.

Specific fixed transportation easements(public need corridors) through d-2 lands thatencompass historic, natural, or projected ac-cess routes to non-Federal areas would limitaccess uses to selected corridors. These cor-ridor lands would be included in the conser-vation systems, but would be made subject toa right-of-way or easement for existing orfuture transportation uses. The specific cor-ridors could be defined in the legislation or in-cluded by reference by filing maps and re-ports within a reasonable time period afterpassage.

One problem with the designated or fixedcorridor approach is that designated corri-dors might not be adequate for future mineraltransportation needs because of the limitedinformation currently available about thelocations of future transport routes and thetiming of resource and transportation devel-

Ch. 7 Options for Congressional Consideration .237

opment. This could give rise to demands foradditional access routes over Federal lands.

Under Option 4B, existing decisionmakingmechanisms for specific transportation proj-ects would be utilized and existing authoritiesfor land management systems would not bealtered. These would remain in effect forrights-of-way for feeder lines and for trans-portation systems outside of the fixed cor-ridors. (For example, under the fixed-corri-dor provision, a railroad might be con-structed in a predesignated corridor, but aright-of-way for a feeder road from a mine ofan adjoining Native Corporation to an ore-loading facility on that railroad would begranted under existing access authority.)

OPTION 4C–A NEW INSTITUTIONALMECHANISM FOR THE REVIEW OF

RIGHTS-OF-WAY FOR ALASKANTRANSPORTATION SYSTEMS

Under this approach, Congress would es-tablish a new decisionmaking mechanism anda new authorization for rights-of-way for ma-jor Alaskan transportation systems. Majortransportation systems are those systemsthat would have a substantial impact on envi-ronmental values and would be incompatiblewith the purposes of any national conserva-tion system units to be crossed. The respon-sibility for this review and recommendationcould be delegated to existing agencies, to theState, or to a joint commission. The decision-making process would include consultationand coordination between the primary landmanagement agency and the new review or-ganization. Final approval for rights-of-waywould rest with the Secretary of the depart-ment involved, with the President, or withCongress. This new mechanism would includeboth a new right-of-way authorization and im-plementation provisions.

For the purposes of evaluation and com-parison with other options, a joint Federal-State commission was selected as illustrativeof the new decisionmaking mechanism. This

commission would have as part of its institu-tional mandate the responsibility for review-ing and recommending proposals for majorAlaskan transportation systems. The commis-sion would review applications for rights-of-way across Alaskan conservation systemlands for major transportation systems. TheSecretary of the Interior (for national parkand refuge units) and the Secretary of Agri-culture (for national forest units) would beauthorized to grant final approval of therights-of-way.

Approval of the rights-of-way would onlybe issued after the application had beenfavorably reviewed and recommended by thenew Federal-State commission. The commis-sion would conduct reviews as part of itsoverall institutional responsibilities, whichcould also include land management andtransportation planning. As part of its plan-ning responsibility, the commission wouldidentify those areas where major transporta-tion systems would have to cross conserva-tion units or other Federal land.

The composition of the commission wouldinclude a broad representation of interests:Federal and State governments, officials ofland management and transportation agen-cies, and private and Native groups. After apublic hearing, or other similar opportunityfor participation by interested parties, thecommission’s recommendations together withstudies and dissenting views would be for-warded to the appropriate Secretary, whowould then make a final decision.

Representatives of the affected Federalland management agency would participateduring the commission review. In making afinal decision, the Secretary would have thebenefit of diverse views from competing in-terests and could give attention to the manag-ing agency’s recommendations in balancingany conflicting demands. The final decision toapprove transportation system rights-of-waywould remain with the Secretary of the man-aging department or with the State and pri-vate owners for jointly managed non-Federallands.


The applications for major transportationsystem rights-of-way would be filed with theappropriate Secretaries and forwarded forreview to the joint commission. The manage-ment of conservation system lands and thefinal approval of the right-of-way would restwith the Secretary who has jurisdiction overthe unit crossed. The requirements for thepreparation of environmental impact state-ments and other reports mandated by exist-ing laws would continue. However, by inter-agency agreement, the joint commission couldparticipate in the studies.

The final approval of specific projects, in-cluding decisions about routes and modes,would still be made by existing Federal andState transportation agencies. The modifica-tion of the transportation. system decision-making process would not alter existing re-quirements for an independent 4(f) reviewbefore federally aided transportation proj-ects using State or Federal park or refugelands may be approved by the Secretary ofTransportation.

There is a potential problem with dele-gating part of the responsibility for the re-view of transportation system decisions in-volving Federal lands in Alaska to a commis-sion. This split responsibility might under-mine the authority of the Federal land man-ager to control the adverse environmentaland other effects that could result from usingFederal conservation system lands for accessand thus defeat the legislative purpose of pro-tecting these lands,

Like Options 4B and 4A, Option 4C setsforth a policy choice for authorizing the ap-proval of transportation system rights-of-wayacross conservation units. The availability ofspecific routes would, however, depend ontheir identification during the planning proc-ess. The approval of actual requests fortransportation rights-of-way for specifictransportation projects could then follow.This option, however, provides a means ofassuring that the future transportation needsof the State and of Native Corporations areaccommodated in the management of the landadded to conservation systems.

OPTION 5–RESTRICTION ON ACCESS ACROSSALASKAN CONSERVATION SYSTEM LANDS

.- . ‘ , . “- +

In contrast to the previous four options,which deal with policies that would facilitateaccess through conservation units, Option 5

limits the nonessential access use of Alaskanconservation lands. This option adds a fur-ther measure of protection and preservation

Ch. 7 Options for Congressional Consideration “ 239

to the scenic, wildlife, recreational, and his-toric value of these lands. This option doesnot impose a complete ban on crossing Feder-al lands to reach non-Federal holdings. Exist-ing access rights and the needs of non-Fed-eral landowners to reach surrounded orother isolated lands that have no other avail-able means of access would be accommo-dated. However, those landowners who donot fall under existing access rights, and whowould be adversely affected by not being ableto reach their property, would not be able toobtain rights-of-way to use Federal conserva-tion systems without express congressionalauthorization. The authority, under presentlaw, of Federal agencies to grant rights-of-way and transportation system easementsacross conservation system lands would belimited. This approach is consistent with apolicy decision that Alaska lands have suchhigh value as primitive wilderness, for theirscenic beauty, for their wildlife, and for theirfuture enjoyment, that they should be pro-tected against any use that might be detri-mental to these values.

This option would deny indefinitely mostaccess use of Federal lands in Alaska withoutspecific congressional action, and thus wouldlimit the discretionary access authority of ex-isting agencies (i.e., the power to grant rights-of-way and transportation system ease-ments). It would not, however, deny reason-able assurances of access to owners of sur-rounded lands or to holders of existing accessrights (such as those recognized in the Wil-derness Act and in the current policies ofvarious land management systems). Other ac-cess uses would be severely restricted inorder to preserve Federal lands. The restric-tion could apply to all or part of the d-2 con-servation unit designations. Federal landmanagement agencies and the Department ofTransportation would be responsible for theimplementation of the policy, and would bebound by the restrictions.

Transportation decisions would be madeunder existing institutions, but the additionalrequirement of congressional authorizationwould be added. Congressional approval

would be required before any nonexempt ac-cess use would be granted for these lands,such as a nonexempt right-of-way or a trans-portation system easement. Some existing pri-vate rights, such as traditional uses and snowmachine use where currently establishedwould be permitted, provided there was noundue harm to protected conservation unitland. Rights-of-way that have been estab-lished by the public use of roads and trailsover public land (under Title 43 of the U. S. C.,section 932, prior to its repeal in 1976 by thepassage of the BLM Organic Act) would berecognized; and their continued use, evenover conservation units, would be permitted.

In addition to the restriction on the accessuse of Federal lands to reach non-Federalareas, rights of access to mining claimswithin Federal lands would also be regulated.In some instances, in order to preserve Fed-eral lands, either a land exchange or compen-sation would be offered to an owner who re-linquished such rights where continued orproposed access use posed a threat to pro-tected values of the surrounding Federal areaand adequate environmental safeguardscould not reasonably be adopted.

By limiting the existing right-of-way au-thority of Federal land management agencies,Option 5 creates a special category of pro-tected conservation system lands in Alaskawith access restrictions similar in purpose tothose defined in the Wilderness Act. Landmanagement program-related activities anduses would not be restricted. Where existingrights-of-way have been granted, Congressmight direct their cancellation on the expira-tion of the term of the right-of-way, unlessunreasonable hardship would result. By lim-iting the authority of the managing agenciesto grant rights-of-way and transportation sys-tem easements under existing laws, Option 5imposes a greater restriction than Option 1since it would modify present access au-thority.

As an additional protection or restrictionon the use of Federal lands, Congress couldprohibit the expenditure of funds without


prior notice to and approval by Congress forprojects that would require the use of oradversely affect conservation lands. This re-quirement would be similar to Wild and Sce-nic Rivers System protections. Foreclosingmost access routes across Federal lands inAlaska would impose greater restrictions onsurface mobility and development than atpresent, and would discourage planning forfederally aided transportation projects. Con-sequently, it would further deter the mineralexploration and development that is depend-ent on the availability of adequate bulk trans-portation to markets.

Non-Federal landowners who did not fallwithin the narrow exemption would not bepermitted to use Federal conservation landsfor access purposes. This policy could, insome circumstances, impose hardship, such

as requiring potential developers to goaround large protected Federal areas at sub-stantially greater expense. The unavailabilityof some Federal conservation system landsmight increase the demands for the use ofState and Native lands for access routes andtransportation system development; andmight also limit future mineral explorationand development activities to those regionsthat are already served by adequate trans-port or that do not require crossing Federalconservation system lands.

Congress could be subjected to pressurefor ad hoc or crisis approvals of transporta-tion routes and systems. This could lead tothe construction of environmentally damag-ing or inefficient routes, while more’ desirablealternative routes are either foreclosed or notdeveloped because of land use restrictions.

8

Concluding Remarks

Concluding Remarks

The Office of Technology Assessment(OTA) was asked to assess the effects ofFederal laws, policies, and practices on ac-cess through Federal lands to non-Federalmineral-bearing lands. The decision ofwhether or not to allow Federal lands to beused for access requires the balancing ofcompeting interests and values. In Alaskathese values include wilderness preservation,resource development, and the subsistenceculture of the Native peoples.

This report summarizes and analyzes thelaws governing Federal land managementsystems, the laws specifically applicable toAlaskan lands, and the major environmentaland land-planning laws that affect accessacross Federal land management systems. Italso presents a variety of options or policyalternatives for congressional consideration.These options represent a range of alter-natives for dealing with access policy inAlaska. These options describe alternativeapproaches to the access issues associatedwith the proposed additions to national con-servation systems called for by section17(d)(2) of the Alaska Native Claims Settle-ment Act.

It would be possible to develop a number ofvariations and combinations of the policy op-tions described in this document. Other pro-

posals for the management of Alaska landsand a variety of access policies have beenpresented in various congressional bills, inthe recommendations of Federal executivedepartments and agencies, in the documentsof the Federal-State Land Use Planning Com-mission for Alaska, and in other sources.

The laws governing access through pro-tected lands constitute only one of the compo-nents of an access decision. Political, social,economic, and environmental considerationsmust also be taken into account. An accesspolicy decision will clarify the terms and con-ditions under which access can be approvedfor applicants and land managers alike.

The access options developed for this re-port apply to Alaska where access acrossFederal lands is an issue of widespread con-cern. The absence of access options for Fed-eral lands in other States should not be inter-preted as meaning that no problems exist out-side Alaska. In assessing the effects of Feder-al laws on access to minerals on non-Federallands, OTA conducted interviews in Alaska,Arizona, Colorado, Wyoming, North Carolina,and other States.1 Based on OTA interviews

IAppendix C contains a list of persons and groups in-terviewed and a list of consultant and contractor re-ports.

243


and contractor studies, it appears that thereare few non-Federal minerals access prob-lems related to Federal landownership andregional transportation patterns in Statesother than Alaska. These interviews includedrepresentatives of the mining industry, oflocal governments, of environmental and con-servation groups, and of other interests. The

‘Many of those interviewed did, however, expressconcern that Federal land management agency prac-tices sometimes caused access-related problems,(“Practices” means the actions of Federal officialswhen implementing Federal laws, policies, and regula-tions.) Examples of practice-related problems aredelays in processing and reviewing of permit applica-tions and complying with overlapping or duplicativelicensing and reporting requirements of Federal andState agencies. Other interviewees asserted that the

interviews disclosed no instances where min-eral development on non-Federal land wasprevented by the denial of access acrossFederal lands. Most non-Federal mineralareas outside of Alaska are adequatelyserved by existing transportation networksand rights-of-way.2

management and land use policies for Federal landscould affect mineral activities on non-Federal lands, Astudy of the environmental and economic conflicts be-tween Federal lands and adjacent non-Federal lands isbeing prepared by the Conservation Foundation withgrants from the National Science Foundation and sev-eral Federal land management agencies. This report,Neighbors: Conflicts and Opportunities, will be avail-able in early 1979.

Appendixes

—

\

Appendix A

Glossary

The terms below are defined as they areused in this report and supporting OTA work-ing papers. Some may have additional con-notations deriving from their usage in miningand land management. In this report, how-ever, their meaning is limited to these defini-tions.

Access: Generally means a right to crosslands for a given use.

Deposits—Mineral: A surface or underground area

where sufficient quantities of mineralsoccur to warrant exploration. A mineraldeposit may or may not be economicallyor technically feasible to develop, de-pending on its size, the concentration ofits minerals, and the ease with whichone or more useful components can beextracted.

Placer: A deposit of alluvial material,which has the minerals scatteredthrough it. These deposits are foundalong and in riverbanks, streambanks,and in beach sands. Ore reserves arecalculated on the basis of physical,economic, and technical criteria.

Porphyry: A large body of rock in or asso-ciated with a porphyry, which is an ig-neous rock with the ore minerals dissem-

inated throughout. For ore reserve cal-culations, the boundaries are defined onthe basis of economic criteria.

Ultramafic: A particular type of igneousrock that is low in silica but high in mag-nesium and iron, and occasionally alsocontains concentrations of nickel, chro-mium, and asbestos.

Vein: Ordinarily a small deposit consistingof massive fissure fillings of ore min-erals. Ore reserves are calculated on thebasis of physical boundaries and eco-nomic-technical criteria.

Easement: One person’s right to make use ofanother’s land. It is a right to use ratherthan a right to possess. A right-of-way isone kind of easement.

Federal Domain: Federally owned lands or in-terests in lands.

Federal Land Management Laws: Lawspassed by Congress that directly relate tothe management of Federal lands, includ-ing access. (See also: policies, regulations,statutes.)

Federal Land Management Systems: As usedin this report, Federal land managementsystems refer to the major managementcategories for Federal lands. These in-clude: (a) Public Lands, which are managed

247


by the Bureau of Land Management of theDepartment of the Interior; (b) NationalPark System, which is managed by the Na-tional Park Service of the Department ofthe Interior; (c) National Wildlife RefugeSystem, which is managed by the Fish andWildlife Service of the Department of theInterior; (d) National Forest System, whichis managed by the Forest Service of the De-partment of Agriculture; (e) National Wil-derness Preservation System, componentsof which are managed by the land manage-ment agency designated by Congress inspecific legislation (e.g., the Bureau ofLand Management, the Park Service, theForest Service, and the Fish and WildlifeService); and (f) National Wild and ScenicRivers System, components of which aremanaged by a congressionally designatedland management agency.

Lands—Acquired: Means lands which the United

States obtains by deed through purchaseor gift, or through condemnation pro-ceedings. They are distinguished frompublic domain lands in that acquiredlands may or may not have been original-ly owned by the Government. If original-ly owned by the Government, such landshave been disposed of (patented) underthe public land laws and thereafter re-acquired by the United States.

d-1 lands: Under section 17(d)(l) of theAlaska Native Claims Settlement Act,the Secretary of the Interior is author-ized to withdraw public lands for classi-fication in order to ensure that the pub-lic interest in these lands is adequatelyprotected. Approximately 60 millionacres not covered by other classifica-tions or withdrawals have been with-drawn under section 17(d)(l) as publicinterest lands for further study and clas-sification. No time limit was placed onthe d-1 lands withdrawals. In addition tothe lands under this section, consider-able other acreage including d-2 landwithdrawals as well as Native villageand regional deficiency withdrawals

(lands withdrawn to allow Native selec-tions) have also been covered by section17(d)(l) withdrawals. The State of Alas-ka may not select lands under the AlaskaStatehood Act entitlements in mostareas covered by the d-1 lands with-drawals.

d-2 lands: Under section 17(d)(2) of theAlaska Native Claims Settlement Act,the Secretary of the Interior was author-ized to withdraw up to 80 million acresof public lands for study and recommen-dation to Congress for possible additionsto National Park, Forest, Wildlife Ref-uge, and Wild and Scenic Rivers Sys-tems. These lands are called d-2 or na-tional interest lands. The withdrawalswill retain this classification until De-cember 18, 1978, the congressionaldeadline for action on the proposals. Theterm d-2 lands is also loosely used torefer to the lands that will be set asideunder the final d-2 proposals enacted bythe Congress as parks, forests, refuges,and wild and scenic rivers whether ornot the specific parcels were included inthe original d-2 lands withdrawals. The80-million-acre limitation in section 17(d)(2) does not impose any limitation on thetotal number of acres that eventuallymay be included in d-2 lands legislation,or on the number of acres the Secretarymay withdraw under other authority forcongressional consideration or classifi-cation. The d-2 lands are closed to entryunder the public land laws and the min-ing and mineral leasing laws; they arealso closed to State and most Nativeselections under the land grants of theAlaska Statehood Act and the AlaskaNative Claims Settlement Act.

Federal: Any land or interest in land ownedor managed by the Federal Government.

Non-Federal: Includes private, State, andlocal government lands but excludes In-dian lands, i.e. tribal reservations andother lands held in trust by the FederalGovernment for a tribe or Indian. InAlaska, it refers specifically to Nativeand State lands. (For information on In-

Appendix A—Glossary ● 249

dian lands, see Federal Trade Commis-sion, Bureau of Competition, Staff Re-port on Mineral Leasing on IndianLands, 1975; U.S. General AccountingOffice, Management of Indian NaturalResources; Senate Comm. on Interiorand Insular Affairs, 94th Cong., 2d sess.(Comm. Print 1976); American IndianPolicy Review Commission, Task ForceSeven Report on Reservation and the Re-source Development and Protection,1976.]

Other: Means: (1) “Withdrawn lands”--lands that have been withdrawn anddedicated to public purposes; (2) “Re-served lands” —lands that have beenwithdrawn from disposal and dedicatedto a specific public purpose; [3) “Segre-gated lands”-- lands included in a withdrawal, or in an application or entry, orin a proper classification that segre-gates them from the operation of thepublic land laws. [38 F.R. 35082, Dec.21, 1973]

Public: Only those federally owned lands orinterests in lands that are managed bythe Bureau of Land Management of theDepartment of the Interior. Public landsare divided into public domain lands,which have never left Federal owner-ship; and acquired lands, which arelands in Federal ownership, are not inpublic domain, and have been obtainedby the Government through purchase,condemnation, g i f t , or exchange.“Lands” include all interest in land,such as surface ownership, mineralrights, timber rights, and easements.

Public Domain: Means original public do-main lands that have never left Federalownership; also, lands in Federal owner-ship that were obtained by the Govern-ment in exchange for public lands or fortimber on such lands; also original pub-lic domain lands that have reverted toFederal ownership through operation ofthe public land laws.

As defined in the Federal Land Policyand Management Act of 1976, the term“public lands” means any land and in-

terest in land owned by the UnitedStates within the several States and ad-ministered by the Secretary of the In-terior through the Bureau of Land Man-agement, without regard to how theUnited States acquired ownership, ex-cept—(l) lands located on the OuterContinental Shelf; and (2) lands held forthe benefit of Indians, Aleuts, and Eski-mos. Public Law 94-579, 90 Stat. 2743,43 U.S.C. 1702(e) (1977 supp.).

Long Term: A projection into the post-1990period. In Alaska, it is based on the yearimmediately before Native Corporationsbecome public corporations.

Lower-48: A colloquial expression used byAlaskans to refer to the contiguous 4 8States.

Metals—Additive: These include antimony, bismuth,

mercury, tungsten, tin, the rare earths,and molybdenum. Their primary use isas special alloy components.

Base: These include copper, lead, zinc, andaluminum.

Ferrous: These include the three most im-portant metallic elements, chromium,iron, and nickel, used in the manufac-ture of various types of steel.

Precious: These are gold, silver, and plati-num. They have specialized industrialapplications for communications elec-tronics, for photography, and for catal-ysis in automobile pollution control de-vices, respectively.

Mine Development: The process of acquiringdetailed metallurgical, engineering, geolog-ical, technical, and economic data nec-essary to justify mine planning, construc-tion, and initial startup. For purposes ofthis report mine development begins withclosely spaced drilling and bulk samplingthat requires surface logistical support forevaluation of large deposits.

Mine Size:Underground Mine

(short tons of ore mined/day)Small. . . . . . . . . . . . . . . . . . . . . less than 1,000Medium . . . . . . . . . . .........1,000 to 5,000Large . . . . . . . . . . . . . . . . . . . more than 5,000

. .


Open Pit Mine(short tons of ore mined/day)

Small. . . . . . . . . . . . . . . . . . . . . less than 5,000Medium . . . . . . . ...........5,000 to 30,000Large . . . . . . . . . . . . . . . . . . more than 30,000

Placer Mine(yd3 mined/year)

Small. . . . . . . . . . . . . . . . . . . less than 600,000Medium. . . . . .........600,000 to 3,600,000Large. . . . . . . . . . . . . . . . more than 3,600,000

Minerals—Availability: In the broad sense in which

this term is commonly used by miningpersonnel, availability is construed asthe right of the public and the mining in-dustry to prospect for and developmineral resources. This includes allsteps in the process of mineral resourcesdevelopment.

Concentrate: The product that results frommilling the ore and segregating the valu-able minerals. Mineral concentrates aresmelted to extract the metals from theore minerals.

Energy or Fuel: Oil and other energy miner-als including geothermal, natural gas,coal, and uranium. Uranium is an energymineral but is treated as a hardrockmineral because of the similarity in itsoccurrence characteristics.

Exploration: Activities leading to ore de-posit identification including: regionalmapping, geochemical sampling, geo-physical surveying, detailed mapping,and widespaced drilling. Exploration, asdefined in this study, can be adequatelysupported by air so that surface trans-portation access is not necessary untilmine development appears to be war-ranted.

Hardrock: Refers generally to the locatableminerals. These include the metals andcertain industrial nonmetallic mineralsincluding uranium.

Leasable: The leasable minerals are essen-tially the fuel minerals (e.g., oil, gas, andcoal, but excluding uranium), phosphate,potash, sodium salts, sulfur, which aredisposed of through the Federal leasinglaws.

Locatable: The locatable minerals, in con-trast to the leasable and salable com-modities, have been characterized as“hard to find” metallic minerals. Depos-its of these minerals are often geologi-cally obscured. They are claimed underprovisions of the Mining Act of 1872, asamended in 1955.

Nonfuel: Those minerals not included in thefuels mineral group.

Occurrence: The presence of ore mineralsin a rock outcropping. In some instancesore minerals may be present in sufficientquantities to be classified as a deposit.Mineral occurrences are often surfaceindications of underlying mineral de-posits.

Production: The output of a working mine,i.e., the value or amount of its concen-trate and bullion production.

Resources: Naturally occurring substancesthat have properties which can be put toman’s use. Mineral resources includenearly all of the elements and many com-pounds; most are solids, but some areliquids, and a few are gases; and mostare inorganic, but some of the most im-portant (oil, coal, and natural gas) werederived from organic sources.

Salable: Certain common variety materialssuch as sand, gravel, and stone that arehandled under the commodities disposalsystem.

Native: A person who is by blood relation one-fourth degree or more Alaska Indian,Aleut, or Eskimo, or any combination of thethree. This includes those whose adoptiveparents may not be Natives, or a personwho is recognized as a Native by the Nativevillage of which he claims to be a memberor whose father or mother is or has been amember. Such a person is qualified for en-rollment in a Native Regional Corporationunder the Alaska Native Claims SettlementAct.

Near Term: Projection through 1990; in Alas-ka, it is based on the year immediately be-fore Native Corporations become publiccorporations.

Appendix A—Glossary ● 251

Non-Federal Mineral or Mining Interests:Public and private mining interests includ-ing private mining businesses, State groupsinvolved in mineral leasing or the promo-tion of mineral development, and county-owned quarry operations.

Ore Grade: The quantity of a specific metalor nonmetal mineral commodity in the ore,by weight. Grade is usually expressed aspercent, e.g., 3 percent copper ore. Thegrade of precious metal deposits is normal-ly stated as troy ounces of metal per ton ofore.

Policies: The interpretation by different Gov-ernment agencies of regulations imple-menting the land management and disposallaws.

Practices: The actions of Federal officialswhen implementing and enforcing Federallaws, policies, and regulations.

Regulation —An administrative rule issued bya Federal agency or department imple-menting or interpreting a statute or policy.Regulations are published in the FederalRegister (F. R.) and compiled yearly in theCode of Federal Regulations (CFR). Thereare two types of regulation, interpretiveand substantive.Interpretive; Regulations that are issued to

advise the public of an agency’s inter-pretation or construction of the statutesand rules it administers. Interpretiveregulations are not binding on those af-fected by them and may be presented toa court for judicial determination.

Substantive: Regulations other than thosedescribing organizational, procedural,or practice requirements that are issuedby an agency pursuant to statutory au-thority, and that implement a statute.Such regulations have the force and ef-fect of law.

Right-of-way: A right of to cross the land ofanother. As used in this report, a right-of-way means the right to cross Federal landsby obtaining a “right-of-way” permit. Theauthority to grant this permit maybe foundin a specific right-of-way statute or in the

general discretionary management author-ity. Title V of the Federal Land Policy andManagement Act of 1976 provides: theterm “right-of-way” as used in the Act in-cludes “an easement, lease, permit, orlicense to occupy, use, or traverse publiclands” granted for certain purposes. (43U.S.C. 1702(f).)

Small mining business: Small mining businessor the small miner is here defined as an in-dividual, partnership, or corporation, thatis engaged in prospecting or mining as afull- or part-time business. If incorporated,it is closely held, not advertised in a majorstock exchange, and is capitalized forunder $1 million. In Alaska, the smallminer employs less than 20 persons; andannually mines less than 600,000 yards ofalluvial material (clay, sand, silt, gravel, orother material deposited by running water)or less than 50,000 tons of metallic hard-rock ore, or less than 200,000 tons of coal,industrial materials, or sedimentary ma-terials (other than placer alluvium), whichrequire further processing.

Statute: A bill passed by Congress and signedby the President. Statutes of the UnitedStates are published in the Statutes-at-Large (Stat.) and are codified in the UnitedStates Code (U. S.C.).

Surface or Transportation Access: This termrefers specifically to the right to use landsfor the purpose of developing a transporta-tion system. This includes roads and rail-roads.Barrier: An obstacle that prevents surface

access, e.g. the loss of access to the onlymountain pass through which a regioncan be reached.

Restriction: A deterrent to surface access,e.g., standards set by multiple jurisdic-tions that require substantial legalresources, time, and costs; or a detouraround a topographic obstruction suchas a mountain range.

Restraint: A limitation that makes it diffi-cult to gain surface access, e.g., a Feder-al permit requirement involving an indi-


vidual, local, or Federal agency thatcauses delays.

Market Access: An aspect of transporta-tion access that specifically concernsthe movement of minerals and theirproducts from the mine or processingsite to market.

Western United States/Eastern UnitedStates: The Western United States includesMontana, Idaho, Wyoming, Colorado, NewMexico, Arizona, Utah, Nevada, Washing-ton, Oregon, California; the Eastern UnitedStates includes the other 37 contiguousStates in the United States.

Appendix B

Acronyms

AMRAP

ANCSA

AQCRBACT

BATBLMBODBOMBPTCEQ

CZMA

DOIDOTEIS

EPA

ESECA

FCC

FEAFERC

—Alaska Minerals ResourcesAssessment Program

—Alaska Native ClaimsSettlement Act

—Air Quality Control Region—best available control

technology—best available technology—Bureau of Land Management—basic oxygen demand—Bureau of Mines—best practicable technology—Council on Environmental

Quality—Coastal Zone Management

Act—Department of the Interior—Department of Transportation—environmental impact

statement—Environmental Protection

Agency—Energy Supply and

Environmental CoordinationAct of 1974

—Federal CommunicationsCommission

—Federal Energy Agency—Federal Energy Regulatory

Commission

FHWA

FLPMA

FPCFSFSLUPCA

FWPCA

FWSNAAQS

NEPA

NOAA

NPDES

OCSPSD

SIPTAPTAPSUSFSUSGS

—Federal HighwayAdministration

—Federal Land Policy andManagement Act

—Federal Power Commission—Forest Service—Federal-State Land Use

Planning Commission forAlaska

—Federal Water PollutionControl Act

—Fish and Wildlife Service—National Ambient Air Quality

Standards—National Environmental Policy

Act—National Oceanic and

Atmospheric Administration—National Pollution Discharge

Elimination System—Outer Continental Shelf—Prevention of Significant

Deterioration—State Implementation Plan—Trans-Alaska Pipeline—Trans-Alaska Pipeline System—United States Forest Service—United States Geological

Survey

253

Appendix C

Public Participation andList of Supporting Documents

The effects of Federal land managementlaws, policies, and practices on the use ofFederal lands for development of minerals onnon-Federal lands has not been studied wide-ly. Special attention was therefore given todeveloping the information necessary to sup-port problem analysis and evaluation.

Non-Federal lands constitute approximate-ly two-thirds of the total national land basepotentially available for domestic mineralsdevelopment. Information gathering in thecontiguous United States focused on Stateswith large Federal landholdings, such asNevada where 87 percent of the land is feder-ally owned. (Figure C-l.) Primary emphasiswas given to Western States; a sample ofEastern States was included for complete-ness.

Certain States were selected for intensiveanalysis. In the West, Nevada and Arizonawere analyzed. Information was also gath-ered in Colorado and Wyoming. Within theEastern States, North Carolina was analyzedin depth. Additional information was ob-tained in New Jersey, Delaware, SouthCarolina, and Virginia. Alaska was analyzedintensively because access across Federal tonon-Federal land was a prominent issue dur-

ing congressional consideration of Alaska Na-tional Interest Lands legislation.

In order to complete this assessment, OTAhad to conduct basic information gatheringbecause of the dearth of published materialon problems of access to non-Federal miner-als. Several approaches were used to obtainthe necessary information: field interviews,study area analyses, and workshops. Anal-ysis of access issues could not have beenaccomplished without such information gath-ering and the cooperation of nearly 600 indi-viduals and groups that were concerned oraffected by Federal land management deci-sions. Among the groups interviewed werenon-Federal landowners; Alaska Native Cor-porations; mining interests, including miningcorporations, small mining businesses andsmall miners; conservation and environ-mental organizations; the academic commu-nity; and representatives of Federal, State,and local governments. Professional andtechnical organizations such as the Associa-tion of State Geologists also provided in-formation. Contacts were maintained withthese groups throughout the study.

OTA information gathering was aug-mented by contractor and consultant reportswhich 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/

#


analysis phase of the assessment. OTA staffindependently verified the information ob-tained by contractors and consultants. Thefollowing is a list of working papers preparedfor this assessment.

Minerals Accessibility to Non-Federal Lands inArizona, W. Dresher, T. Eyde, and J. Poole, Univ.of Arizona.

Impact of Federal Land Management and DisposalLaws on Transportation Related Mineral Accessi-bility to Non-Federal Lands in Nevada, D. Bryan.

Assessment of Mineral Accessibility to Non-FederalLands in North Carolina, Geological Resources,Inc.

Mineral Accessibility on Non-Federal Lands—Prob-lem Evaluation, Harbridge House, Inc.

The Potential Relationship Between U.S. Balance ofPayments and Alaska Minerals Development, J.Whitney.

Effects on the Federal Regulatory Framework onMinerals Exploration and Mine Development onDomestic Public and Private Lands, J. Whitney.

Mineral Exploration and Development ProblemsArising From Public-Private Severed Estate Prob-lems in the United States: An Industry Perspective,J. Whitney.

National Access Restrictions for Key Mineral Com-modities—Analysis of Case Studies, J. Whitney.

Coastal Zone Management and Access to OnshoreMinerals on Non-Federal Lands—A ThresholdAssessment, B. Theberge and Scott Whitney.

Effects of the Federal Coastal Zone Management Actof 1972 on Access to Minerals on Non-FederalLands, Earth Satellite Corp.

Transportation Access Across Federal to Non-Feder-al Land for Hardrock Mineral Development—Pol-icy Alternatives for Congressional Consideration,Harbridge House, Inc.

Evaluation of Minerals Transportation Access Prob-lems for Non-Federal Minerals Exploration andDevelopment in Alaska, J. Whitney.

Survey of Minerals Transportation Availability forSelected Hardrock and Energy Minerals, PanTechnology, Inc.

The Federal Regulatory Framework: Effects on Min-erals Exploration and Mine Development on Do-mestic Public and Private Lands, J. Whitney.

These working papers are on file at OTA.Persons wishing to review these workingpapers should contact the Materials Group,Office of Technology Assessment, Washing-ton, D.C. 20510.

Other working papers prepared for theassessment were published by OTA as: Anal-ysis of Laws Governing Access Across Fed-

eral Lands, Volume II, Working Papers(OTA-M-76 ). This volume includes the follow-ing papers:

Assessment of Transportation Access Requirementsfor Minerals Exploration and Mine Developmentand Operation in Alaska, J. Whitney and D. Bryan,

Assessment of Environmental Penalties Introducedby Transportation Access to Alaska Non-FederalMineral Resources, B. Shaine.

The Economic Importance of the Small Miner andSmall Mining Businesses in Alaska, C. Hawley andJ. Whitney.

OTA relied heavily on field interviews inthe contiguous United States during the earlyphases of the assessment. Problems asso-ciated with access use of Federal lands forexploration and development of minerals onnon-Federal lands were identified in consul-tation with representatives of various Na-tional, State, and local interest groups. OTAgratefully acknowledges the assistance of thefollowing individuals and groups that madetechnical contributions to the assessment:

ArizonaA&S Sand and Gravel CompanyAllied Concrete Products, Inc.AMAX Inc.American Agriculture International, Inc.American Materials, Inc.Anamax Mining CompanyArizona Conservation CouncilArizona Mining AssociationArizona Rock and Sand CorporationArizona Rock Products AssociationArizonans for a Quality EnvironmentBureau of Land Management, Advisory BoardBureau of Land Management, Phoenix Grazing

DistrictBureau of Land Management, Safford Grazing

DistrictBureau of Mines, U.S.Cinder/pumice operators*Cities Service Minerals CorporationCitizens of Flagstaff*Coconino County Planning Dept.Columbia Sand and Gravel CompanyCONOCOConstruction Materials Inc.Continental Copper Company

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

.


Flagstaff Chamber of CommerceForest Service, U.S.Gee-Services of ArizonaHecla Mining CompanyInspiration ConsolidatedKerr-McGee CorporationMesa Sand and Rock CompanyMineral Property Owners*National Park Service, U.S.Nature ConservancyNavajo Community CollegeNewmont MiningOccidental Minerals CorporationPapago Indian Tribe, Director of MinesPeabody Coal CompanyPerry Exploration CompanyPhoenix Chamber of CommercePhoenix Rock and Sand CorporationPima County Assessors’ OfficeRanchers*Santa Fe Pacific Land CompanySmall Mining Interests*Southern Arizona Environmental CouncilSouthwest Economic Information CenterSouthwest Exploration AssociatesSt. Joe American CorporationState of Arizona

Bureau of Geology and Mineral TechnologyGovernor’s Commission on Arizona EnvironmentLand DepartmentMineral Resources DepartmentState Legislature, House and Senate Natural

Resources CommitteesUniversity of Arizona, Council for Environmental

StudiesUniversity of Arizona, Office of Arid Lands

Stop Mining Around Residential TucsonThe Superior CompaniesThe Tanner CompaniesTucson Sand and Soil CompanyTwitty, Seville and Mills, Attorneys-at-LawUnion Rock and Sand CompanyValley Concrete and MaterialsValley National BankWallaby EnterprisesWestern Prospector and Miner NewspaperWhite Mountain Apache Indian Tribe, Tribal

Chairman

CaliforniaNational Audubon SocietyNational Wilderness FederationState of California

Division of Mines and Geology

—

ColoradoBureau of Land Management, U.S.Chambers of CommerceCitizens of Grand Junction*Colorado Counties, Inc.Colorado National BankColorado Oil and GasConsolidated Coal CompanyDepartment of Energy, U.S.Eagle County Planning CommissionForest Service, U.S.National Audubon SocietyEnvironmental Consultant*Sand and Crushed Stone Operators*State of Colorado

Bureau of MinesGeological Survey

Delaware

Barber Sand and GravelContractors Sand and GravelDelaware Brick Co.Delaware Sand and GravelNew Castle County Planning and Zoning CommissionSoil Conservation Service, Sussex County DistrictState of Delaware

Office of Management, Budget, and PlanningDepartment of Natural Resources and

Environmental ControlState Geological Survey

Sussex County Planning OfficeWhittington’s Sand and Gravel Company

District of ColumbiaBureau of Mines, Liaison Officers for Maryland and

DelawareConservation FoundationDepartment of Commerce, U.S.

OCZM, South Atlantic Regional ManagerDepartment of the Interior, U.S.Environmental Policy CenterFriends of the EarthSierra ClubWilderness Society

IndianaIndiana Department of Natural Resources, Geological

Survey

Iowa

Iowa Geological Survey

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


Maryland

Arundel CorporationCampbell Sand and Gravel CompanyCharles County Sand and GravelContee Sand and Gravel CompanyNational Sand and Gravel AssociationStancill’s Inc.State of Maryland

Conservation Education CouncilDepartment of Natural ResourcesOffice of Coastal Zone ManagementGeological Survey

MichiganMichigan Department of Natural Resources

MinnesotaMinnesota Geological Survey

MissouriMissouri Department of Natural Resources

Montana

Forest Service, U.S.Anaconda Company

NevadaAir Force, U.S.American SelcoAnaconda CompanyArrow Ready MixBasic IndustriesBendixBureau of Indian Affairs, U.S.Bureau of Land Management, U.S.Bureau of Mines, U.S.Bureau of Reclamation, U.S.Carlin Gold MinesC.B. Concrete CompanyCities ServiceCitizens Against BureaucracyCitizens for MiningConsulting Economic Geologist*Consulting Geologist*Consulting Mining Engineer*Desert Protective CouncilDuval, Inc.Eagle Picher IndustriesEnvironmental Representatives*Exploration Geologists of NevadaExploration ResourcesForest Service, U.S.Freeport Exploration

Galli ExplorationHecla Mining CompanyHomestake MiningIMCO ServicesInspiration DevelopmentInternational Minerals and Chemicals CorporationLake Mead Recreation Area Representative*Las Vegas Building MaterialsLaw Firm*Lawrence Livermore LaboratoryMilchem Citizens for MiningMining Engineer*Naval Air Station, U.S.Nevada Association of Conservation DistrictsNevada Mining AssociationNewmont ExplorationPacific Coast Building ProductsPhillips PetroleumRanchers Exploration and Development CorporationSierra Club, Toiyabe ChapterSilica MinersSilver King MinesSiskon CorporationSmall Miners*South Pacific Land CompanyState of Nevada

Conservation and Natural Resources DivisionDivision of State Lands

Superior OilUnion CarbideUniversity of Nevada, Mackay School of MinesVirgin Valley Opal Miners AssociationWashoe County Representative*Washoe Jeep Squadron, Nevada Open Land

Organized CouncilWells Cargo, Inc.

New JerseyASARCOAtlantic County Citizens Council on EnvironmentBureau of Mines, U.S.Citizens*Jessie S. Morie and Son, Inc.New Jersey Zinc CompanyRalph Clayton and Sons Sand and GravelState of New Jersey

Bureau of Geology and TopographyDepartment of Environmental ProtectionDepartment of TransportationImplementation and Involvement Group, Office of

CZMTuckahoe Sand and Gravel Company

New Mexico

New Mexico Bureau of Mines and Mineral Resources



North CarolinaAppalachian Regional CommissionArmy Corps of Engineers, U.S.Basnight Construction CompanyBecker Sand and Gravel CompanyBorden Brick and Tile CompanyBoren Clay Products CompanyBureau of Mines, U.S.Carolina Silica CorporationChambers of Commerce*City and Town Representatives*Clark Stone CompanyCoastal Zone Management and Planning CouncilCollege of AbermarleCotton Patch MinesCranberry Magnetite CorporationCrowell Constructors, Inc.Cumberland Paving CompanyDare County Representatives*Dickerson, Inc.Earl L. Saunders ExcavationEcologist-forester*E. L. Wade Construction CompanyFeldspar CorporationFirst Colony Farms Inc.Fish and Wildlife Service, U.S.Foote Mineral CompanyForest Service, U.S.Glendon Pyrophyllite Company, Inc.Harris Mining CompanyHays CorporationHitchcock CorporationHodges Equipment CompanyIMC Chemical Group, Inc.Jacob’s Creek Stone CompanyJ. L. Colville Construction CompanyKing’s Mountain Mica CompanyLawson United Feldspar & Mineral CompanyLithium Corporation of AmericaMartin-Marietta AggregatesMaymead Lime Company, Inc.Melson Sand CompanyNantahala Talc and LimestoneNational Park Service—Blue Ridge Parkway, U.S.National Park Service—Great Smoky Mountain, U.S.National Park Service—Outer Banks, U.S.National Sand and Gravel AssociationNello L. Teer CompanyNewsome Sand and GravelNorth Carolina Aggregates AssociationNorth Carolina Granite CorporationOuter Banks Contractors, Inc.Perry and Daniels Inc.PHB Emerald CorporationPhelps Dodge ExplorationPiedmont Minerals Company, Inc.

Pine Hall Brick and Pipe CompanyPowhatan Mining CompanyRetired Persons*Soil Conservation Service, U.S.Solite CorporationSouthern Aggregates, Inc.State of North Carolina

Coastal Resources Advisory CouncilDepartment of TransportationEconomic Coastal Management OfficeEconomic Coastal Resources CommissionGeologists*Highway Department Field Office Representatives*Land Quality SectionMines & Quarry Division, Dept. of LaborNatural and Economic Resources DepartmentNorth Carolina Commission of Indian AffairsSite Planning, Parks, and Recreation Division

Statesville Brick CompanyStetson and Daniels, Inc.Texasgulf, Inc.University of North Carolina, Minerals Research

LaboratoryUniversity of North Carolina, Zoology DepartmentWake County Planning DepartmentWake Stone CorporationWashington Chamber of Commerce

OklahomaOklahoma Geological Survey

OregonOregon Department of Geology and Mineral

Industries

South CarolinaAddco Mining CompanyAshe Brick CompanyCoastal Zone Advisory CommitteeCoastal Zone Management AgencyConservation Interests*Gifford-Hill and Company, Inc.Land AssociatesMartin-Marietta AggregatesNational Oceanic and Atmospheric Administration,

Us.South Carolina Coastal CouncilSouth Carolina Heritage Trust Advisory CommitteeSouth Carolina State Development BoardU.S. Peat CorporationWaccamaw Clay ProductsW. R. Grace and Company

UtahUtah Geological and Mineral Survey



VirginiaAmerican MiningBaillo Sand Company, Inc.Bureau of Land Management, U.S.Chickahominy Sand & GravelCitizens*Corps of Engineers, U.S.Eastern Wildlife Refuge Representatives*Environmental Consulting Firms*Fish and Wildlife Service, U.S.—Great Dismal Swamp

RefugeForest Service, U.S.Geological Survey, U.S.Gunter and Son, Inc.J. C. Jones Sand CompanyNational Park Service, U.S.Old Dominion UniversityR. A. Crewes Sand PitSand and Gravel Operators*State of Virginia

Attorney General Office

Coastal Resource Management ProgramCommerce and Resources DepartmentConservation and Economic Development

DepartmentMarine Resources CommissionMineral Resources Division

Suffolk County Government, Office of City ManagerVirginia Institute of Marine SciencesWilliam and Mary College

WyomingBureau of Land Management, U.S.Citizens of Jackson Hole*Forest Service, U.S.Ranchers*State of Wyoming

Environmental Quality DepartmentLand CommissionWyoming Conservation CommissionWyoming Oil and Gas Conservation Commission

University Associate Professor*
