Pandora’s Box: “The Southeast Alaska Land Entitlement Finalization and Jobs Protection Act”


The following article is from the website of the Greater Southeast Alaska Conservation Community (GSACC), a regional organization based in Sitka, Alaska.  The Board of Directors of the organization includes an impressive and diverse group of longtime Southeast Alaska residents, including: commercial fishermen, a PhD biologist, former Forest Service foresters, hydrologist and a regional economist, a city councilor for the City of Kupreanof, the former Deputy Director of the Alaska Department of Fish & Game’s Habitat Division, and even a former mechanical engineer for Alaska Pulp Corporation.  You can read about GSACC’s Founding Principles here.  – mk
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Since 2007, Alaska’s congressional delegation has been pushing legislation for a special land deal for one Alaska Native corporation, Sealaska.  The 1971 Alaska Native Claims Settlement Act (ANCSA)  authorized the corporation to select acreage for timber development from the Tongass National Forest.  Congress and Sealaska resolved the selection areas during the 1970s.  But now, Sealaska and Alaska’s delegation want to rescind this agreement by allowing the corporation to select areas for timber development outside of the original “boxes” designated in the prior settlement.  The proposed deal, S.730, has met resistance from affected communities who have worked with regional outfitters and guides and commercial fishermen to prevent passage of the current version of the bill.

A critical problem is that Sealaska and ANCSA village corporations have already logged the high quality forest within the prior land selection “boxes” under Alaska’s state forest regulations.  Those regulations are notoriously lax for private landowners and present unacceptable risks to critical wildlife and fish habitats.  Legislation to allow Sealaska to make its remaining land selections outside the box will simply spread destructive logging practices to other high value forest habitats.  A further problem is that behind closed doors several environmental organizations – apparently at the behest of the foundations that fund them – have been trying to cut a deal with Sealaska and the Alaska delegation to “improve” the bill.  These negotiations rely on the faulty premise that Sealaska can offset significant environmental impacts in one area by  including some small Wilderness (or similar) land designations in areas that for the most part are not at risk from further development because of existing laws and regulations or economic limitations.

GSACC rejects that approach as tainted by the failed process for land management changes that have significant consequences for the region and therefore cannot accept the premise of the bill.

Background
ANCSA allowed Sealaska to select several hundred thousand acres of land from the Tongass National Forest. During the 1970s, Sealaska made its selections for most of that entitlement and the federal government subsequently conveyed title to that land, which has now mostly been logged.  According to the Forest Service and Bureau of Land Management (BLM) Sealaska has the right to select between  68,000 and 79,000 acres.  In 1976, Sealaska President John Borbridge filed specific land selections for this remaining acreage with the Bureau of Land Management (BLM), and Congress honored the request by approving the selections. Sealaska filed for these selections in June of 2008 but at the same time, asked BLM to suspend conveyance of the lands while it pursued legislation that would give it more valuable timberland “outside the box.”

This move is often referred to as a “land grab” by its many critics.  It is GSACC’s view that Sealaska refrained from finalizing its 1976 land selections based on the possibility that a legislative deal such as S. 730 would enable the corporation to instead select more valuable lands outside the box so long as the bill included Wilderness designations or similar conservation area offsets.  Such an exchange was desired by a powerful but less than fully representative portion of the environmental groups that have been active on Tongass issues.

Paradoxically, Sealaska claims both that the forest within the ANCSA selection boxes is habitat that is too valuable to clearcut, and that the timber still standing in the boxes is so poor in quality that cutting it is not economically justified.  Alaska’s Citizens’ Advisory Commission of Federal Areas has studied the remaining lands in the boxes and found Sealaska did not provide adequate data to support its claims.  The Commission concluded that there is more than enough suitable timber acreage left within the ANCSA boxes for Sealaska to finalize its remaining entitlements.

It instead appears that S.730 simply seeks to take the most valuable remaining timberlands out of public hands in a remarkably one-sided exchange.  A recently published report by the Audubon Society analyzed the economic suitability of the timber remaining within the boxes and the habitat value of the “outside the box” forest lands allocated to Sealaska in the current bill. The report concluded that the bill targets a large proportion of the remaining “large tree” old-growth forest stands on the Tongass National Forest. This outcome of the bill – a practice known as “high-grading” – would be a continuation of this kind of destruction that began with the dawn of the region’s pulp mill era in the 1950s.

According to the Audubon report, if this legislation passes:

“This would constitute a substantial, permanent loss of a rare resource that is currently held in public trust and managed by the US Forest Service.  The proposed legislation clearly contravenes the earlier intent of Congress to end high-grading and afford higher protection to these rare and valuable large-tree stands on the Tongass.  If enacted, the Sealaska legislation would erode more than 30 years of effort by foresters, conservationists, biologists and other scientists to conserve these remaining rare stands, not only for their value to wildlife and human users in Alaska, but as a resource valued by citizens nationwide. “

The Sealaska legislation would also establish a precedent that could open a Pandora’s Box, setting a precedent for Native corporations across the state to also seek their own sweetheart deals from Congress, to create other exceptions to ANCSA provisions.  The current legislation also includes brand new categories of lands that ANCSA never contemplated, such as Native futures sites.  Land selections made under these new, craftily constructed legislative designations would be dispersed throughout the Tongass, often in ecologically-rich areas that are also valued for tourism, fisheries, already-established patterns of use, and in some cases potential for energy production. The concept of these “futures sites” has generated widespread resistance to the bill, with opponents from the full range of the political spectrum.  Additionally, the bill would authorize Sealaska to privatize portions of the Admiralty and Misty Fjords National Monuments that Congress set aside for the public in the Alaska National Interest Lands Conservation Act (ANILCA).

Collaborators
One of GSACC’s primary objections to the process used to develop this bill is that closed door negotiations have occurred under the auspices of the Tongass Futures Roundtable (TFR).  The TFR began as a Forest Service project but has since devolved into a private discussion group (still including the Forest Service) that seeks to rezone the Tongass National Forest through legislation such as the current Sealaska bill.  Several TFR environmental groups have been negotiating with Sealaska – in meetings closed and unannounced to the press and the public – for concessions that would earn their support for the bill.  To the extent their sought concessions have become known, they are unsatisfactory to the affected communities and other environmental organizations.  The negotiations have so far failed to produce a result.  However, it is disappointing that self-appointed stakeholders from the TFR seem to have one public position that seems to oppose S.730 while working behind the scenes to achieve a compromise quid-pro-quo (Latin meaning this for that, commonly QPQ) Wilderness bill.

There has recently been a national trend toward QPQ Wilderness bills developed by self-appointed “stakeholders” that have financial interests in the outcome of their so-called “consensus-based” collaborations.  The above closed door negotiations, in which all participants were TFR members, is an unfortunate example of this trend.  At their core, the thrust of these exercises is to privatize public lands, undermine existing environmental laws and regulations, and devolve the public process of public lands management in exchange for often small Wilderness designations or other so-called “conservation gains.” Nationwide, many environmental organizations, including GSACC, recognize that the QPQ approach is antithetical to the watchdog role that environmental organizations must fulfill, and we strongly oppose the QPQ, collaborative mindset.

That said, we recognize the need to work cooperatively with all sectors of society to arrive at outcomes that work well but protect the environment and ecosystem integrity.  However, GSACC believes the cozy relationships that are inherent to QPQ assemblages like the TFR and the negotiations over the Sealaska bill, and the foundation-influenced strategies that have driven some environmental organizations into such efforts, are counter to achieving the greatest public good.

In our judgment, the best course is for the Sealaska bill to be withdrawn by Alaska’s senators, and for the selections that Sealaska filed with BLM in 2008, for the corporation’s remaining entitlement, to be conveyed without further delay by the government or Sealaska.

3 Comments

  1. One of GSACC’s primary objections to the process used to develop this bill is that closed door negotiations have occurred under the auspices of the Tongass Futures Roundtable (TFR). The TFR began as a Forest Service project but has since devolved into a private discussion group (still including the Forest Service) that seeks to rezone the Tongass National Forest through legislation such as the current Sealaska bill.(emphasis added)

    I have been puzzling over so-called private collaboratives that include the Forest Service, often (but maybe not in this case) with a Forest Service line officer presiding over the “collaborative.” I find such arrangements at minimum odd. And I wonder whether they are even legal.

    In a 2009 FACA lawsuit in Idaho, Judge Winmill blasted the FS for creating illegal FACA committees (pdf). Among others things of interest in this Idaho case, was the fact that the plaintiffs approach to the suit afforded the judge to rule in a way that surprised the government: They didn’t ask that the project under scrutiny be halted, but rather that the workings of the committee be declared illegal under the Federal Advisory Committee Act (FACA). Winmill agreed, and suggested that whatever was being “advised” by the committee would likely weigh in future decision making by the forest service. Here, in part, is what Winmill used, citing Heartwood 431 F. Supp. 2d at 34-35:

    “Even though [the committee] provided the USFS with only narrative summaries of scientific information, and made no policy recommendations, the [committee] drafts and the final assessment provide the framework, context and information that the USFS will rely on in making policy decisions.”

    I suspect that in this Alaska case the distance between the current “private” Tongass Futures Roundtable (TFR), and the earlier incarnation when it was a”Forest Service project,” is too great for a FACA challenge similar to the Idaho one, but it might still be interesting to assess this TFR relative to FACA. And it might be interesting to assess it relative to the fact that Forest Service people are involved (on government time?) when the intent is to stage up legislation, since that too seems odd, if not illegal.

    Note: I’m working up a post on FACA and Forest Policy/Practice Collaboration for later this week or early next. Maybe we can get more policy discussion there, if not here.

    • The best thing that can be said about the Tongass Futures Roundtable is that it has finally run its course. The timber industry has walked. The state agencies have walked. Only one of Alaska’s grassroots green groups remain. A few national environmental groups, a few Forest Service line officers, a couple of foundations, and some tribes — that’s all that’s left.

      I never thought TFR had a chance. The major players were just too far apart. Industry still thinks that 300 mmbf should come off the Tongass. The reality is one-tenth that amount. Everyone agreed Congress should spend more money in SE Alaska, but with the dilution of Alaska’s congressional appropriations clout, and budget hawks watching for the next bridge to nowhere, the big checks are not so easy to cut.

      TFR should shut its doors and go fishing, which is the future (and present) of SE Alaska.

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