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Public Statements

Statements on Introduced Bills and Joint Resolutions

Floor Speech

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Date:
Location: Washington, DC

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By Ms. MURKOWSKI (for herself and Mr. BEGICH):

S. 340. A bill to provide for the settlement of certain claims under the Alaska Native Claims Settlement Act, and for other purposes; to the Committee on Energy and Natural Resources.

Ms. MURKOWSKI. Mr. President, I rise today for the fourth time to introduce or reintroduce legislation to settle the outstanding land claims of the Tlingit and Haida Native people, the first people of Southeast Alaska. I first introduced this legislation to speed up the conveyance of lands to the Sealaska Native Regional Corporation in 2008. Native residents of Southeast Alaska in 1971 were promised lands to settle their aboriginal land claims to all of Southeast Alaska. Under the motto that nothing of worth comes easy, I hope that the compromise bill I introduce today with my colleague from Alaska Senator BEGICH will finally settle those claims early in the 113th Congress, capping nearly six years of congressional negotiation and review on this issue.

The newly revised bill establishes where and how Sealaska may select the remaining 70,075 acres of land the Bureau of Land Management now says it is entitled to receive under the Alaska Native Claims Settlement Act of 1971, ANCSA. In all, Sealaska, the regional corporation representing some 20,000 Alaska Natives, more than a fifth of all Native residents in Alaska, will receive about 68,400 acres of land for timber development, about 1,099 acres for other economic development such as hydroelectric generation, marine hydrokinetic activity and future tourism development near Yakutat, Kake and Hydaburg, and 490 acres that Sealaska can apply for to gain an additional 76 cemetery and historical places.

The bill provides a balance of old-growth and second-growth timber, allowing Sealaska's timber business to transition to second-growth harvesting. To address local concerns, the new bill does not contain some 26,000 acres of selections on northern Prince of Wales Island. This version of the bill also eliminates more lands near Kassa Inlet and Mabel Bay near Keete on Prince of Wales Island to meet wildlife concerns, buffer key fisheries and anchorage areas for fishermen, and revises selection areas to address the Forest Service's desire to retain more lands that will aid its young-growth timber transition strategy in the Tongass National Forest.

Frankly, it has taken years of frustrating talks and negotiations to reach this point. This bill contains more than 175 changes since the 2008 version, all designed to make the bill acceptable to all Americans. While the odds are that it still won't make absolutely everyone happy, the bill does address all of the major concerns voiced with the Sealaska bill during nearly a half dozen congressional hearings, 22 town hall meetings, and in hundreds of letters and media comments. It gives Sealaska its ANCSA selections, while it provides unprecedented public access to the lands Sealaska will be receiving, and meets the valid concerns of small communities, fishermen and timber workers and protects their industries while fully protecting the environment.

It is a compromise. Clearly there are provisions in the bill that I wish were different, but on balance, it is a fair solution to a most difficult matter that has been dragging on for more than four decades. It is certainly a balanced solution that allows Sealaska to finally take title to the last 70,000 acres it was promised by the land claims settlement--lands largely to be used for economic development in a region where unemployment often hits 25 percent--while at the same time protecting more than twice as many acres for environmental and fisheries protection in Southeast Alaska, an area roughly the size of South Carolina. The bill does the latter by creating 152,000 acres of new conservation habitat areas in the region in eight tracts.

The revised bill also requires Sealaska, by a conservation easement, to protect three major salmon spawning systems on lands it is gaining by imposing a 100-foot no-cut buffer, specifically, along the main stem of Trout Creek on Koscuisko Island, along Old Tom Creek at Polk Inlet and along Karheen and Tuxekan Creeks on Tuxekan Island. The State Forest Practices Act and buffer rules will govern the management of all other streams on state lands inside the new Sealaska selections.

The bill continues and strengthens all public access provisions contained in ANCSA. The bill contains a provision that guarantees public access to Sealaska's economic land selections for recreation, hunting and fishing both sport and subsistence, allowing closures only to protect public safety, to safeguard cultural properties, to promote educational efforts or to protect against environmental damage, while allowing the public to legally challenge any such closures. It also protects the rights of existing guides and tour operators to continue operations automatically on Sealaska lands for portions of two permit terms, or up to 20 years.

The revised bill also reduces the size of selection areas on Koscuisko and Tuxekan Islands to meet local community concerns, to protect, subsurface, karst formations, to protect old-growth habitat areas for sensitive species, and to protect anchorages for fishermen. The revised bill rearranges selection areas at 12 Mile Arm and Polk Inlet to protect Forest Service planning, facilities and research facilities, and increases the size of selection areas at Calder and the Cleveland Peninsula to offset the acreage reductions.

Sealaska, through this bill, will give up its existing selection rights to 327,000 acres of the Tongass National Forest, allowing that timber to return to full Forest Service planning control, and the bill will result in Sealaska selecting about 25,000 fewer acres of old-growth timber, traditionally the most sought after lands in the forest and about 50,000 fewer acres of inventoried road less lands than might have happened should Sealaska have stayed inside their original selection boundaries, lands that were designated for selection by the corporation in 1976. The problem with those lands, the reason why this bill is so important for the public good, is that if Sealaska had to select from those lands it would have had to select timber lands in the Situk River Valley, the home to the nation's foremost steelhead stream. It would have had to select lands in the Craig municipal watershed, key fisheries habitat near Hoonah and Hydaburg and some 64,000 acres of Old-Growth Habitat Reserves, four times more such land than the corporation is taking by this bill. Those selections would have been bad for the commercial and sport fishing industries, for tourism, and for the environment. Equally important from Sealaska's viewpoint, 44 percent of the lands it had to select from by the 1976 selection areas were located under water bodies, making the selection rights worthless.

Sealaska may use part of its entitlement to select 76 cemetery sites and historical places, but to address concerns from some stakeholders, the bill reduces the number and acreage of cemetery sites and historical places that Sealaska can file to receive. Acreage available to Sealaska was reduced more than six fold, from 3,600 acres in the original 2008 bill to a maximum of 490 acres. The total number of sites was reduced from 206 in the original bill and all parks and wilderness lands were placed off limits.

This bill also confirms that all cemetery sites and historical places will have to pass the existing historical review process before they can be conveyed. The bill, again, prohibits the selection of cemetery sites and historical places inside parks and conservation system units. Sealaska will be required to consult with local tribes before applying for conveyance of any sites, and the bill prohibits the transfer of such sites to third parties and protects them from loss of Native ownership in the event of any future financial claims against Sealaska--the lands reverting to the Federal Government in the event of financial issues. The bill also requires that Sealaska provide a 25-foot easement to allow anyone to sport fish along any salmon stream that crosses such new sites.

The bill allows Sealaska to receive nine small parcels of land that Sealaska may use to help spur cultural tourism, ecotourism, or, in two cases, renewable energy development near the communities of Yakutat, Kake, and Hydaburg. The number of sites, totaling 1,099 acres, is vastly reduced, considering more than 50 sites totaling 5,000 acres had been considered in earlier versions of the legislation. The small parcels all are within or near the so-called 10 selection boxes established by a 1976 amendment to ANCSA. Five sites are in the Yakutat area, where Sealaska currently owns no land on behalf of its tribal member shareholders. The sites in the Yakutat area are at Crab Island, North Dolgoi Island, Cannon Beach, Chicago Harbor and Redfield Lake. Two sites are in the Kake area: Turnabout Island and East Payne Island. There is a hydro site at Lake Josephine on Prince of Wales I and and a final site for marine hydrokinetic development, ocean current energy, on the northern tip of Dall Island at Turn Point-Tlevak Narrows' revised bill removes all sites that drew concern from commercial fishermen, small tour operators, environmental groups or local communities in the Alaska Panhandle.

The compromise bill conveys three non-exclusive access easements to Sealaska to use as traditional Native trade and migration routes in Southeast. The bill, as revised, renames the routes to honor Alaska's Tlingit and Haida Indians and the history of the region and provides generally for public access. The Yakutat to Dry Bay trail will be renamed ``Neix naax aan flax'' meaning, The Inside Passage; the Bay of Pillars to Port Camden trail will be renamed the ``Yakwdeiyl'' trail, meaning the Canoe Road; and the Portage Bay to Duncan Canal trail will be renamed ``Lingit Deiyl,'' meaning the People's Road.

The bill requires Sealaska to share use of all forest roads with the Forest Service and others, meaning that the government retains the right to use the roads to access other timber sales, as do the public. The bill maintains all of the access provisions granted by ANCSA and includes provisions to make access rights workable for all.

It has taken years of really listening to the requests about this bill and working through them one by one to find solutions, with the past nearly two years involved in frequent negotiations among the Forest Service, Democratic and Republican congressional staff, Sealaska, environmental groups and other interest groups such as commercial fishermen and timber operators. This is truly a compromise piece of legislation. But it finally gets Sealaska its lands, protects fisheries and wildlife, and helps maintain a timber industry in Southeast Alaska.

This compromise, the direct result of years of negotiation, has a host of good points. It will prevent ``high-grading'' of timber' the practice where companies cut only the best timber lands, leaving lesser quality lands behind. Sealaska's conveyances in the nine commercial tracts called for in this bill: Calder, Election Creek, Cleveland Peninsula, 12-Mile Arm, Tuexkan Island, Polk and MacKenzie Inlets, Koscuisko Island, Keete, and Kuiu Island include only about 20,700 acres of large old-growth trees just 3.8 percent of the forest's 537,451 acres of such trees. Already 437,000 acres of large old-growth trees, 81 percent, are protected in conservation areas within the 19.6-million-acre national forest.

The bill likely will save the government money. In additional to making Sealaska give up some $2 million of escrowed funds, the bill means Sealaska, by getting about 25,000 acres of less valuable second-growth, based on current timber prices, could be foregoing more than $10 million of timber value, compared to if it had received all old-growth trees--old-growth providing the most valuable habitat for species in the forest like Sitka black-tailed deer, the Queen Charlotte goshawk and wolves.

For Alaskans, the bill makes sure that more than 99 percent of the lands Sealaska will be receiving are open for public access. That is the opposite of what could happen if this bill does not pass, as then Sealaska would be free to prevent the public from trespassing across their new lands, like all other private land owners can post their properties.

The changes between this version and previous versions of the measure are far too many to list here. But briefly this bill reduces the number and acreage of small parcels for economic diversification, once called ``Future'' sites. It reduces the number of new Native cemetery and historical places that Sealaska could select, allowing only such sites outside national parks or wilderness to be selected. The bill increases public access provisions, prevents Sealaska from gaining potential federal grants for management of the cemetery sites, removes a host of questionable land selections on environmental grounds and revises timber lands to protect subsistence hunting areas and resource gathering spots.

As I say, I introduce this bill in a bipartisan manner with my Alaska colleague, Senator MARK BEGICH again as a co-sponsor. It is a reasonable bill and I hope it finally can pass both bodies of Congress, it passing the House of Representatives in a somewhat different form in 2012 and become law. Southeast Alaska's Natives, which while the largest group of Natives in Alaska in 1971, received the third smallest land entitlement in the claims act 42 years ago. That was mostly because much of the rest of the forest at the time was already dedicated to long-term timber sale contracts. Now that those contracts have been voided, it is only just and equitable that Alaska's first inhabitants get a chance to select a little more of the land first settled by their ancestors.

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By Ms. MURKOWSKI:

S. 366. A bill to amend the Omnibus Budget Reconciliation Act of 1993 to require the Bureau of Land Management to provide a claimant of a small miner waiver from claim maintenance fees with a period of 60 days after written receipt of 1 or more defects is provided to the claimant by registered mail to cure the 1 or more defects or pay the claim maintenance fee, and for other purposes; to the Committee on Energy and Natural Resources.

Ms. MURKOWSKI. Mr. President, I rise today to reintroduce legislation to clarify Federal mining law and remedy a problem that has arisen from the extension process for ``small'' miner mineral claims.

Under revisions to the Federal Mining Law of 1872, 30 U.S.C. 28(f), holders of unpatented mineral claims must pay a claim maintenance fee originally set at $100 per claim by a deadline, set by regulation, of September 1st each year. Since 2004 that fee has risen. But Congress also has provided a claim maintenance fee waiver for ``small'' miners, those who hold 10 or fewer claims, that they do not have to submit the fee, but that they must file to renew their claims and submit an affidavit of annual labor, work conducted on the claim, each year, certifying that they had performed more than $100 of work on the claim in the preceding year, 30 U.S.C. 28f(d)(1). The waiver provision further states: ``If a small miner waiver application is determined to be defective for any reason, the claimant shall have a period of 60 days after receipt of written notification of the defect or defects by the Bureau of Land Management to: cure such defect or defects or pay the $100 claim maintenance fee due for such a period.''

Since past revisions of the law, there have been a series of incidents where miners have argued that they submitted their applications and affidavits of annual labor in a timely manner, but due to clerical error by BLM staff, mailing delays or for unexplained reasons, the applications or documents were not recorded as having been received in a timely fashion. In that case BLM has terminated the claims, deeming them null and void. While mining claim holders have argued that the law provides them time to cure claim defects, BLM has argued that the cure only applies when applications or fees have been received in a timely manner. Thus, there is no administrative remedy for miners who believe that clerical errors by BLM or mail issues resulted in loss or the late recording of claim extension applications and paperwork.

There have been a number of cases where Congress has been asked to override BLM determinations and reinstate mining claims simply because of the disputes over whether the claims had been filed in a timely manner. Congress in 2003 reinstated such claims in a previous Alaska case. Claims in two other incidents were reinstated following a U.S. District Court case in the 10th Circuit first in 2009 in the case of Miller v. United States and secondly earlier this year in a second Alaska case. Legislation to correct the provision to prevent this problem in the future actually cleared the Senate in 2007, but did not ultimately become law.

In the past two Congresses I have introduced legislation intended to short circuit continued litigation and pleas for claim reinstatement by clarifying the intent of Congress that miners do have to be informed that their claims are in jeopardy of being voided and given 60 days notice to cure defects, including giving them time to submit their applications and to submit affidavits of annual labor, should their submittals not be received and processed by BLM officials on time. If all defects are not cured within 60 days, the obvious intent of Congress in passing the original act, then claims still are subject to voidance. But this administration has opposed the legislation arguing that it would be too expensive to notify all small miners who fail to file their small miner waiver documents on time and giving them time to solve the defect prior to the loss of their claims. It has even been suggested that giving small miners simple due process would just encourage miners to ignore the deadline for filing for their fee waivers.

I find the cost complaint unpersuasive. Many Federal departments and agencies, the Federal Communication Commission, as one example, routinely sends out notices on permit and license applications. The FCC sends out hundreds of thousands of such notices to Americans who have small radio licenses expiring yearly, warning them that they need to file applications for license renewal. The Bureau of Land Management certainly should be able to afford a few hundred 50-cent stamps to perform a similar service. Given the value of claims placed at risk and the bother, inconvenience and fear of loss of claims, it is highly unlikely that miners would avoid filing their waiver paperwork on time just because a notification process was clearly in place before claims could be terminated.

So today I reintroduce legislation to solve the notification issue and include language to remedy an injustice to one of my constituents who has lost his rights to nine mineral claims on the Kenai Peninsula, near Hope, Alaska. The transition language would reinstate claims for Mr. John Trautner, who has lost title to claims that he had held from 1982 to 2004. Mr. Trautner suffered this loss even though he had a consistent record of having paid the annual labor assessment fee for the previous 22 years. The local BLM office did have a time-date-stamped record that the maintenance fee waiver certification form had been filed weeks before the deadline but just not a record that the affidavit of annual labor had arrived when he dropped it office in the Anchorage office at the same time.

This legislation, supported in the past by the Alaska Miners Association, will clarify that small miners do have a right to simple due process to be able to have a chance to file their small miner waiver applications in the event of mistakes in processing, rather than immediately lose their rights to patented mining claims without effective appeal or recourse. I appreciate that the Justice Department and BLM Jan. 22, 2013 reinstated claims owned by Alaskans Don and Judy Mullikins of Nome, finally reversing a decision that they should lose their claims following a 2009 application filing incident. But the legal expense, bother and uncertainty that the Mullikins went through in getting their claims reinstated are clear reasons why Congress should clarify past changes to the small miner waiver provision and permit claims to be retained in the event of clerical errors or honest mistakes by claim holders in missing the deadline for filings. Such a change would simply provide justice for small miners.

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