H.R. 701, Conservation and Reinvestment Act
H.R. 798, Permanent Protection for America's Resources 2000 Act

March 31, 1999 -- Anchorage, Alaska

By Steven C. Borell, P.E.
Executive Director
Alaska Miners Association

March 31, 1999

By Steven C. Borell, P.E.

Thank you Mr. Chairman.

My name is Steve Borell, I am the Executive Director of the Alaska Miners Association and I am testifying on behalf of the Association.

Regarding H.R. 798, Permanent Protection for America's Resources 2000 Act

We cannot support this bill. This bill is not in the best interest of American business, the mining industry, private property owners, or the general public. This bill expends large sums of money for purchase of private lands and does not provide monies to states and communities that can better determine how the funds should be spent. The expenditures proposed by this bill should not be allowed. We oppose this bill.

Regarding H.R. 701, the Conservation and Reinvestment Act

We support the primary goal of this bill which is to pass revenues from off shore leasing to the states and local communities where the revenues are generated. Local states and communities are better able to properly allocate and use these funds and will do so with significantly less administrative overhead than will federal agencies.

We do have concerns with this bill and these are with Title II. Specifically, we are concerned with any program that gives federal agencies additional funds to purchase private property. We recognize that the H.R. 701 contains some restrictions and limitations, for example, on the amount that can be expended without Congressional approval. However, this does not assuage our concerns.

Alaskan miners are possibly the single group of U.S. citizens most severely impacted by federal agencies intent on obtaining and controlling private property. Being an inholder within national parks, preserves, refuges, monuments, wild & scenic rivers, etc. has been a terrible problem for many miners in this state. Many Alaskan mining families have lost their equipment, their property, their life savings, and their livelihoods because the passage of ANILCA in 1980 made them inholders. ANILCA contained all manner of promises for access and protection of valid existing rights. With 18 plus years of experience we can say that those promises have not been honored by the federal agencies and that the relentless efforts of the agencies to control the property have made a sham of the promises. Additionally, harassment by the agencies reduces the value of the property so the owner has no viable alternative but to settle at a greatly discounted amount.

On several occasions Senator Stevens ensured that funds were appropriated to allow the National Park Service to purchase the mining claims held by miners at Kantishna. Furthermore, if my memory is correct, on at least three occasions Senator Stevens or Senator Murkowski wrote specific legislation that would provide relief for Kantishna area inholders. About five years ago, while he was Ranking Minority Member on the Senate Energy and Natural Resources Committee, Senator Murkowski presided over a hearing of that Committee held here in Anchorage on the problems faced by inholders and their treatment. However, even with all this effort, I am aware of only four instances where Kantishna inholders have actually been compensated for their property. I am aware of many others, who because of agency delays and harassment (both deliberate and incidental) have lost everything they had. These are some of the most bitter and hurt Alaskans you would ever have the opportunity to meet. Many of them died before receiving any compensation or even a small measure of justice. Money has been appropriated but the National Park Service has been unable and/or unwilling to settle with the affected persons at a reasonable value.

Our Opposition to Title II Purchase of Private Land

It is with this background that we cannot support Title II of H.R. 701 as currently drafted. We urge that Title II be removed from the bill or changed significantly. This Title provides funds for the federal government to purchase private land. There are some instances where this is appropriate but those are exceptions and should be dealt with on a case by case basis. Our concerns with Title II include the following:

1. Title II creates a dedicated fund that can be used for purchase of private property by government agencies. This fund will become an "entitlement" and once an entitlement is established it becomes nearly impossible to change it. Agencies will set up new programs to administer and spend the money, lease new office space, and hire new employees, all of which establishes new dependencies on the continued receipt and perpetual increase in the amount of money needed.

2. This dedicated fund will be off-budget and as a result, not subject to annual Congressional authorization and oversight. Such oversight now occurs during the debate over each appropriations bill. All expenditures must be weighed against other needs of the nation. Even where there is annual oversight, there are numerous instances where government agencies have strayed from the intent of Congress. When this happens Congress has an extremely difficult task getting the agencies back under control. Examples of this problem, even with annual Congressional oversight through the appropriations process, can be found in every land management agency in the Department of Interior. Moneys for purchase of private lands must continue to be tightly controlled and be subject to the annual Congressional appropriations and oversight process.

3. The availability of huge amounts of money for purchase of private lands will provide a tremendous motivation for government agencies to use the money to buy more private land than is necessary. This will place private property owners at jeopardy. Where private lands are inholdings within federal conservation system units, agencies are able to withhold issuance of various permits or require outrageous amounts of money as "mitigation," thereby rendering the private land of little value and forcing the owner to sell his property for a song.

4. The existence of a trust fund to purchase inholdings will become an argument to support new Congressionally designated parks, refuges, etc.

5. As written the funds can also be used to purchase private land within the boundaries of National Forests. National Forest boundaries often encompass huge areas of private land. Every mining claim and operating mine will become a target for purchase by the U.S. Forest Service. Farms, ranches, resorts, homes, small towns, and private land around towns will be placed in jeopardy.

6. The availability of huge amounts of money for purchase of private lands will provide a tremendous motivation for government agencies to find new ways to use the money. The Exxon Valdez oil spill (EVOS) settlement moneys are a recent example of how large amounts can be misspent. EVOS monies have been used to purchase several hundred thousand of acres of private land in a state with little private land to begin with and place them into restricted set-asides. These lands could have been productive. They could have provided on-going revenue for their owners, jobs and economic benefit to their communities and taxes to local and State governments. But no, the EVOS funds have been used to separate the Native peoples from their lands and their heritage. The affected Natives have been given promises of continued use for subsistence and other traditional uses. However, we have no confidence that 18 years from now these promises will have any more weight than the promises in ANILCA for protection of valid existing rights. Glacier Bay provides an example where the fishermen are being driven out of the area simply because the National Park Service does not want them there.

7. These funds will place Native allotments in jeopardy. There are now several thousand Native allotments that are inholdings within federal set-asides. Title II funds will be used to place tremendous additional pressure for these landowners to sell their property. Access and other restrictions can easily make these lands nearly unusable by their owners. If a large source of funds is readily available, the danger of increased restrictions and pressure on individual Native allotment holders is sure to accelerate. The cancerous efforts of the federal agencies to buy up Native allotments is on-going but a new fund of money will be established to remove remaining allotment holders.

8. Just as EVOS lands have been used to separate lands in Prince William Sound from the Native owners, Title II moneys will be used to purchase Native Village lands all across the State of Alaska.

9. Even though ANILCA says "no more" parks and preserves, this Title II will provide money to do just that - add more land to parks, refuges and other set-asides in Alaska.

10. The compensation for communities and states through PILT (payment in lieu of taxes) will not benefit Alaska. Most of the PILT lands in Alaska are in the unincorporated borough and/or have not been developed so there is no property tax history for them. They do not contain taxable businesses, facilities, homes, etc. These lands are not presently on the tax rolls. With federal purchase, they will never provide any tax revenues to state or local communities. PILT will not be paid either. Native lands under ANCSA are not taxed until they are developed and if I am correct, Native allotments are not taxed unless a business is developed on them.

11. Of Alaska's total 365 million acres, approximately 215 million acres are already federally owned and will never provide a tax base for local and state governments. This fact was the basis of former Governor Walter Hickel's $30 billion suit against the federal government. There is no justification for the federal government to own any additional land in Alaska. In fact, the federal government should be selling land.

12. The federal government can make better use of this money than by purchasing private property. If this is not the case, reduce the royalty charged on OCS oil & gas production and increase our Nation's scarce domestic reserves of oil and gas. Additional tax revenues generated may well exceed the lost royalty revenue.

Our Recommendations Regarding Title II:

We have sought to show why we cannot support H.R. 701 as now drafted. If we have not convinced you to remove Title II in total, then we urge that major changes be made to it. There are four changes that need to be made and without these Title II cannot be made acceptable to Alaska miners:

1. Require a hard cap on the national acreage of land owned by the federal government that is the same as the acreage presently owned. This will ensure that there is "no net loss of private land" for the nation.

2. Require that, in states where federal land ownership exceeds some threshold (possibly 10%), for every acre of private land purchased, not less than one acre of federal land be sold into private hands. This will ensure that there is "no net loss of private land" on a state by state basis. Additionally, a standard should be included for determining valuation so the reduction in value brought about by agency harassment of inholders will not be effective in reducing property values.

3. Extend the prohibition on federal agency use of condemnation so it applies to state and local governments. This prohibition must apply to funds obtained under any part of the bill.

4. Remove in total the provision allowing U.S. Forest Service inholdings to be purchased under this bill.

Other changes that should be made include:

5. Require that any purchases of more than $250,000 or 5,000 acres be approved by Congress through the appropriations process and agreed to by the legislature of the affected state.

6. Include a prohibition on the purchase of any additional private land within a county, parish or borough where government (federal plus state plus local) ownership already exceeds 20% of the total land area.

7. Include a prohibition on the purchase of any additional private waterfront footage within a county, parish or borough where government (federal plus state plus local) ownership already exceeds 20% of the total waterfront footage.

8. Include a prohibition on the purchase of any private land in Alaska.

9. Provide a guarantee that any lands purchased under this law remain open to hunting, fishing and trapping.

10. With all the needs that exist across the nation, there is no justification to spend funds strictly on land acquisition or recreational purposes. Each state should be allowed to spend these funds on maintenance or capital improvements if it feels these needs are greater.

Other Changes Needed to H.R. 701

There are other important issues in this Act that we feel need to be changed and these include the following:

13. The definition of "coastal population" references the Coastal Zone Management Program (CZMP) and thereby requires that a state have an approved CZMP before it can receive monies under the Act.

14. The definition of "coastal population" will lead states to increase the area covered by their CZMPs so they include more people and thereby increase their allocation of funds. The rules for defining CZMP areas are not clear and there are major differences between CZMPs. In some locations the coastal zone is limited to the area of tidal or salt water interface. In other locations (in Alaska) CZMPs extend several hundred miles inland.

Recommendation: The definition of "coastal population" needs to be changed to separate it from the CZMP. For example, the inland extent could be specified as extending a set number of miles, say 20 miles, from the "coastline" which is clearly defined in the Submerged Lands Act (43 U.S.C. 1301 et seq.).

15. Section 105 forces the federal government, the states, and the local political subdivisions to establish a new bureaucratic agency to develop, review, approve, oversee, update, etc. the state plans. Recommendation: Allow the states and local political subdivisions to determine how the monies will be used and eliminate these agencies. Utilize self-policing by allowing the local political subdivisions to use the superior court to settle differences with their respective states.

16. The paragraph numbering in Section 202(d)(2) regarding allowed uses of monies given to Tribes and Alaska Native Village Corporations does not appear to correspond with the referenced paragraphs.

15. State Action Agendas now require approval of the federal government. The federal government is already involved and controls too many activities that should be strictly the purview of the states. Recommendation: Remove the phrase "federal agencies" from the list of participants required for development of the State Action Agendas.

17. The 4 year update cycle required for State Action Agendas is too short. As with the triennial reviews required by the Clean Water Act, opposition by environmental groups will result in litigation that lengthens the time to carry out such updates. Recommendation: Extend the planning horizon to 10 years, require an update cycle of every 8 years, and allow updates at shorter intervals.

18. Federal agencies often find creative ways to divert funds into "initiatives" that are not authorized by Congress. A recent example is the American Heritage Rivers Initiative. Recommendation: Include specific language that no funds from this Act can be used as a part of any initiative or other activity that is not authorized by Congress.

Further General Recommendation: That the entire Act be studied with the specific goal and view of removing federal control and involvement wherever possible.

19. Section 205 involving the Habitat Resource Program contains a potential trap for land owners that may jeopardize future use of the land. What happens if at the end of the agreement period the federal agency decides that the land must not return to its pre-agreement use because of threatened or endangered species? Recommendation: Include a guarantee that the property owner may return the property to other uses once the agreement period is completed.

20. The findings in Section 301 (5) and (6) should be changed to read "hunting, [and] fishing and trapping" and "hunters, [and] anglers and trappers" respectively.

Thank you for the opportunity to testify on H.R. 798 and H.R. 701. It should be clear from our comments on H.R. 701 that we are very concerned with some portions of this Act. We look forward to continued involvement in these Acts.


Steven C. Borell, P.E.
Executive Director

cc: Senator Ted Stevens
Senator Frank Murkowski
Governor Tony Knowles


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