Miners seek statutory reform of ANILCA

On March 28, 2016, six days after the U. S. Supreme Court rendered its unanimous opinion in the matter of "Sturgeon v. Frost," I offered testimony before the U.S. Senate Energy and Natural Resources Committee on behalf of the Alaska Miners Association. My testimony concerned six specific statutory recommendations for resolving many of the ongoing issues Alaskans are laboring under as the result of wrong-headed interpretations by the four major federal land-managing agencies in Alaska.

The testimony initially picked up on "Sturgeon" because of two factors.

First, the opinion was unanimous, meaning that irrespective of suggestions of political factions within the Supreme Court, at least when it comes to Alaska, every single sitting justice on the highest court in the land recognizes that Alaska is different.

Alaska is different implicitly when considering its history up to and including the Alaska Statehood Act and the subsequent Alaska Native Claims Settlement Act of 1972 and explicitly different when reading the text of the Alaska National Interest Lands Conservation Act of 1980.

And secondly, the U.S. Ninth Circuit Court of Appeals got its knuckles severely rapped with its perversely narrow reading of the applicable law.

The case was remanded for further proceedings in the lower court, and whether that means the Ninth Circuit will revisit its opinion or remand it further to the Alaska federal district court remains to be seen.

However, it will be harder for the bureaucracy to find an end-run around the language in "Sturgeon." Hopefully, the district court will take heart from the guidance and begin to decide challenges under ANILCA by recognizing that "[s]tatutory language cannot be construed in a vacuum <and that it> is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme" for a change.

In essence, the organic acts of the four major federal land-managing agencies regulating Alaska land must be read through the prism of Alaska statutory trilogy - the Statehood Act, ANCSA and ANILCA.

Interpretation of "Sturgeon" must be guarded, however, because SCOTUS did not address the specific arguments made by the parties. It is reasonably likely that on remand one argument or another will result in more discord. Obviously, a good result would be for the National Park Service to change its wanton ways; but somehow, I suspect that to be unlikely. Mr. Sturgeon spent the best part of three-quarters of a million dollars (largely of his own personal funds), but the United States has the full faith and credit of the United States to bring to bear when it comes to matters such as this.

Beyond the "Sturgeon case, however, there were five other legislative requests in the AMA testimony, including:

1. An ANILCA-specific definition of what constitutes a "withdrawal". There is a definition in the Federal Land Policy and Management Act that simply makes no sense in terms of what constitutes a withdrawal in Alaska. Everyone in Alaska knows what it means to withdraw land from, for instance, mineral entry; yet at least one federal district court has decided that a stilted and incongruous definition borrowed from a different statute should be the guideline.

2. The Alaska Land Use Council should be reconstituted. The Council, consisting of 12 members, half from the federal land-managing agencies and half from the interested state agencies, and co-chaired by the governor of Alaska on the one hand and a representative of the president of the United States on the other, functioned well for a decade. In 1990, it was allowed to sunset despite unanimous recommendations by council members and chairmen that it be continued. This council gave a meaningful voice to Alaskans with regard to the management of "Conservation System Units" created under ANILCA.

3. Numerous public land orders imposed on Alaska lands pursuant to ANCSA Section 17(d)(1) in anticipation of ANILCA are no longer needed and should be statutorily revoked. In 2006, the BLM filed a report with the Senate Energy and Natural Resources Committee recommending the lifting of several of these orders; however, the BLM has never followed through. Clearly, BLM needs statutory mandate.

4. Revised Statute 2477 rights-of-way need to be statutorily recognized. RS 2477 granted rights-of-way across federal lands. RS 2477 was prospectively repealed when FLPMA was enacted; however, existing rights-of-way, including numerous trails in Alaska, were recognized by the State of Alaska and enumerated in the Alaska statutes. That should have been sufficient for the United States to step aside. Instead, the BLM has taken it upon itself to contest every demand for recognition by the State, at great cost to both governments. The request of the Alaskan Miners Association is that the requested rights-of-way be recognized immediately and without qualification.

5. In a similar vein, title to submerged lands in Alaska passed to the State upon statehood, contingent only upon "navigability"; however, the BLM has challenged requests by the State over what constitutes "navigability" in any specific case. These challenges are nonsense and should be barred. We have proposed language that makes it clear that if the body of unfrozen water can support a laden raft, it is navigable for the purposes of the Statehood Act. No further questions need be asked.

Although it is never clear whether or when any statutory recommendation will gain traction, it would appear, in light of the "Sturgeon" case, that now is as good a time as any to advance these legislative requests on behalf of the people of Alaska and our mining industry.