 |
|
|
|
 |
STATE OF ALASKA
Citizen's Advisory Commission on Federal Areas
3700 Airport Way, Fairbanks, Alaska, 99709 4699
Phone: 907 451 2775 Fax: 907 451 2761
http://www.gov.state.ak.us/boards/factsheet/fedareas.htm
May 24, 1999
The Honorable Don Young
Chairman
Committee on Resources
U.S. House of Representatives
1324 Longworth Building
Washington, D.C. 20515The Honorable Frank Murkowski
Chairman
Committee on Energy and Natural Resources
United States Senate
304 Dirksen Building
Washington, D.C. 20510Dear Congressman Young and Senator Murkowski,
The Citizens' Advisory Commission on Federal Areas has reviewed H.R. 701 and S. 25, both cited as the Conservation and Reinvestment Act of 1999. Because of the similarity of these two bills we have combined our comments into a single letter and ask that it be included in the record for each bill. We also wish to thank the House Resources Committee for holding the field hearing in Anchorage on March 31. We encourage the Senate Energy and Natural Resources Committee to schedule a similar hearing. We also want to thank the staffs of both Committees for their help in providing briefings and background information on H.R. 701 and S. 25.
The Commission is not opposed to the concept of providing funds from Outer Continental Shelf oil and gas production to offset impacts to coastal states. We are aware of the widespread support for those sections of the bills which would provide millions of dollars in impact assistance to coastal states and territories. We are equally aware of the importance of funds made available under the Land and Water Conservation Fund (LWCF) to state and local governments for conservation and recreation programs. Over the years, Alaskans have enjoyed many benefits from projects built with LWCF moneys. Of perhaps even greater importance to Alaskan hunters and anglers are the fish and wildlife conservation and restoration programs under the Pittman-Robertson Act and the Dingell-Johnson/Wallop-Breaux Act. Operations under these programs would be enhanced by provisions in these two bills.
Federal Land Acquisition Program Should Not Be Expanded
While there are clearly many beneficial elements to be found in these bills, this Commission has serious concerns about key provisions found in Title II of both bills. We are particularly concerned about the creation of a dedicated fund of between $330 million (S. 25) and $378 million (H.R. 701) per year for acquisition of private lands by federal land management agencies. Creation of such a dedicated fund, which will not be subject to the annual appropriations process and adequate Congressional oversight, poses grave threats for those private property owners whose lands are included within the boundaries of a federal land management unit.
We believe these threats will exist in spite of the bills' prohibition on use of any of these funds for condemnation of private properties. A dedicated source of funds for a federal agency's land acquisition program will only increase the pressure already exerted on property owners to either sell their property or submit to some type of conservation easement or development restriction. Experience has demonstrated that even the most reluctant land owner can be converted into a "willing seller" by a persistent and determined agency. We would submit that for each property owner who freely offers their property for sale to a federal land management agency, there are dozens who are eventually manipulated into a situation where they are left with no real choice but to sell.
Alaska National Interest Lands Conservation Act, Section 1302- Land Acquisition Authority (16 USC 3192), contains a number of measures designed to protect certain property owners within conservation system units from acquisition by condemnation. Other protective measures, such as prohibiting acquisition of a property unless the owner is first offered land of similar character and value in exchange and limitations on the acquisition of improved property, are also included in this section(1)
. Consequently, Alaskans have been spared the worst abuses to property rights such as those occurring during the orgy of condemnation of private properties conducted by the National Park Service in the Cuyahoga Valley National Recreation Area in Ohio, the Buffalo National River in Arkansas, and elsewhere in the country. Nevertheless, the agency has had some success in eliminating private property interests in Alaskan park units.
Perhaps the best examples are found in Denali National Park and Preserve, Wrangell St. Elias National Park and Preserve and Yukon-Charley Rivers National Preserve. These three park and preserve units were either created or expanded by ANILCA. While ANILCA withdrew all federal lands within these new and expanded units from all forms of appropriation or disposal, including entry or location under the mining laws, it also clearly recognized the valid existing rights of mining claim holders.
Notwithstanding this statutory recognition, all mining operations within these areas were halted following a 1985 lawsuit and court ordered injunction. The lawsuit was eventually decided and the injunction lifted. In complying with the court's decision, the National Park Service developed a set of resource protection standards which all mining operations must meet in order to secure approval of a plan of operations. The agency also decided, as a final course of action, to acquire all patented and valid unpatented mining claims within these units. In theory, mining is still permitted on patented and valid unpatented claims in these park units during the acquisition phase. As a practical matter, however, the resource protection standards cannot be met and mining operations are effectively precluded. The ultimate result will be acquisition of all claims in these park areas.
According to the final environmental impact statements outlining the agency's plans, the preferred methods of claim acquisition will be by purchase, exchange or donation. Eminent domain (condemnation) is to be used only if a negotiated acquisition cannot be attained. Of course the agency has taken steps to invalidate as many of the unpatented claims as possible in order to avoid having to compensate these claim owners. Owners of valid unpatented and patented mining claims are left with no choice but to offer their claims for sale to the NPS. These claim owners would be categorized by the agency as "willing sellers." The reality, of course, is that the claim owners must sell to the agency because they have no viable alternative. Opportunities for sale to other individuals are limited because the claims have already been targeted for acquisition.
Since mining activity was halted 14 years ago, many claim owners have suffered serious financial losses, some were even forced into bankruptcy. These financial difficulties and bankruptcies have occurred because, not only have claim owners been unable to mine, there has been a endless series of problems with the agency's acquisition of the claims and compensation for the owners. These problems were not caused by a lack of funds for acquisition, but rather because the agency made every effort to minimize or even avoid compensation of the claim holders. More funds have probably been spent on administering the program than in actual claims acquisition. Because the acquisition process was so protracted, special legislation finally was needed to provide relief to claim owners in the Kantishna Mining District within Denali National Park and Preserve.
It is important to note that this legislation actually provided a mechanism which allows claim owners to agree to a transfer of all rights, title and interests in their claims to the United States. In exchange, the claim owners are compensated for their property and the amount of compensation determined by the U.S. District Court, rather than the National Park Service. Only by agreeing to condemnation of their property do the Kantishna claim owners have some chance of reasonable compensation.(2)
Hundreds of parcels of private lands within Alaskan units of the national park and national wildlife refuge systems are targeted for some level of acquisition in the land protection plans for those units. This acquisition can range from fee simple acquisition, to purchase of conservation easements, to a cooperative agreement between the managing agency and the property owner. For many other parcels identified in the plans, no acquisition is currently proposed provided no "incompatible" development or activities occur on those parcels. The agencies are responsible for defining what constitutes an incompatible development or activity.
In some instances, the plans state that subdivision of a property or a commercial development such as a lodge or hotel would be deemed incompatible. In other cases, the plans have determined that development of surface access or even the improvement of existing surface access under the provisions of ANILCA 1110(b) would be incompatible with unit purposes and would result in the property being targeted for acquisition. Those cases involving access present particular problems for property owners.
The most obvious is a significant reduction in both the value and marketability of the property because of the high potential for restrictions on access. Less obvious problems stem from the standards for approval of a right-of-way permit found in the ANILCA Title XI access regulations (43 CFR §36.10). These standards include the requirement that a route or method of access must be consistent with the management plan(s) for the unit or purposes for which the unit was established. Clearly, a land protection plan which has already determined that development or improvement of surface access is incompatible with a unit, coupled with regulatory standards which require compatibility, presents the property owner with a situation that is damaging to property rights and values.
Implementation of these land protection plans has been limited for a number of reasons. The fact remains, however, that by targeting parcels for acquisition or threatening acquisition if the owner elects to exercise his property rights, these plans place a cloud over the parcels. We offer these examples to illustrate the fact that property interests are not jeopardized only by condemnation. As we have seen, property owners can be subjected to a number of policies, regulations or management plans that make it difficult to exercise their private property rights. More needs to be done to protect private property rights from federal land management agencies. Additional mechanisms need to be developed to ensure that each property owner within a federal conservation system unit is treated fairly and allowed realistic options for both retaining their property and enjoying its economic and other benefits. Should a property owner wish to sell their property to a federal land management agency, they certainly have that right, and the agency should have the necessary funds to complete the transaction. However, property owners should also have the ability to utilize their property or offer that property on the open market with the expectation that it can sell for a reasonable price. This can only occur if the owner's property rights and values are not adversely affected by agency actions or threats.
In our discussion with House Resources Committee staff at a meeting in Fairbanks, a major point stressed by committee staff was that there will always be a federal land acquisition program. While we may agree that this is likely, this Commission does not support acquisition of private properties merely because federal agencies want to exorcise all private inholdings from units under their control. The fact is, most inholdings are targeted for acquisition primarily because agencies consider non-federal lands within a designated area to be a nuisance and not because those lands encompass critical wildlife habitat or seriously threaten unit values.
Unfortunately, both H.R. 701 and S. 25, by establishing a dedicated fund, will likely guarantee that acquisition of private properties within conservation system units will not only continue, but increase. Further, this dedicated fund will make federal agencies less accountable to the Congress and the public for their land acquisition programs. This Commission strongly urges revisions to both bills to maintain Congress' oversight role of all federal land acquisition programs by requiring any allocation of moneys under the LWCF be subject to the normal appropriations process. We have other suggestions for better accountability which we discuss later in these comments.
We would also like to point out that support for an increase in federal land acquisition is inconsistent with statements contained in House Report 105-834, Report on Legislative and Oversight Activities of the Committee on Resources of the House of Representatives during the One Hundred Fifth Congress. The Committee made the following finding:
"State Land and Water Conservation Fund Renewal: In the last two years, Federal funding for the State Land and Water Conservation Fund program has been eliminated, in favor of dedicating all funds to Federal land acquisition. At a time when the Federal government already owns 30 percent of the land, and cannot adequately manage the lands under its jurisdiction, continued expansion of the Federal estate is difficult to justify. In fact, three years ago, the Interior Inspector General recommended that the U.S. Fish and Wildlife Service discontinue all land acquisition until they could properly care for the lands already under their jurisdiction. Further, the need for public outdoor recreation space is greatest in urban and suburban areas of this country. For these reasons, continued exclusive focus on Federal land acquisition cannot be justified." (House Report 105-834, pg. 51)
Many members of the public are rightfully confused over this apparent about face by the chairman and other members of this same committee, as evidenced by the provisions in H.R. 701.
Maintenance and Construction Needs Should Be Emphasized Over Acquisition.
The Commission would suggest that, rather than allocating between $330 million and $378 million annually for acquisition of additional lands to be added to the federal estate, those funds would better be used for reducing the maintenance backlog for existing visitor and administrative facilities and infrastructure in the nation's conservation system units, national forests and other designated areas, and for construction of new facilities and infrastructure.
Existing language in subsection 6(a) of the Land and Water Conservation Fund Act authorizes the use of LWCF moneys allocated to states for development of outdoor recreational facilities. Section 203(c) of S. 25 proposes to amend this section by allowing states to use LWCF moneys for development and rehabilitation of facilities. H.R. 701 should be revised to included a similar authorization for restoration and maintenance. We would also encourage amendments to both bills to allow use of LWCF moneys by federal land management agencies for maintenance, rehabilitation, construction, and development of visitor and administrative facilities and infrastructure within management units.
The Commission recognizes that appropriations for maintenance and development of facilities and infrastructure generally come from sources other than the LWCF. However, Congress has previously authorized the use of LWCF to address the maintenance backlog facing federal land management agencies. For example in Title V of the Department of the Interior and Related Agencies Appropriations Act, 1998 (Public Law 104-83) Congress appropriated $699 million under the LWCF to be used for both land acquisition and critical maintenance, to remain available through FY2001. This appropriation provided some $50 million dollars for maintenance to Department of the Interior agencies in FY'98 and an equivalent amount for FY'99.
While the extent of maintenance problems and construction needs facing management agencies is difficult to determine, there is general agreement that it is extensive(3). Recently, the Bureau of Land Management, National Park Service and the U.S. Fish and Wildlife Service estimated that they have a backlog of maintenance needs of approximately $7 billion. According to the General Accounting Office, however, Department of Interior officials acknowledge that estimate does not mean much because they do not have accurate or reliable information on the extent of the problems. When construction needs are factored into the equation, estimates nearly double to approximately $12 billion. For example, in 1997 the National Park Service alone estimated its maintenance and construction backlog at some $6.1 billion.
The Recreation Fee Demonstration Program, authorized by Congress in 1996 and subsequently extended in the FY1999 Omnibus Appropriations Act through FY2001, has helped alleviate some of the repairs and maintenance problems facing the three Interior Department agencies and the U.S. Forest Service. The Fee Demonstration Program, while generally regarded as a success, was intended to supplement agency budgets, not generate all the revenue necessary to cover maintenance and construction needs of the agencies. Further, as currently structured, there is a wide disparity in the amount of funds received by the four agencies and by individual sites. The General Accounting Office also examined the fee demonstration project and made the following statement:
"For many sites in the demonstration program--particularly the Park Service's sites--the increased fee revenues equal 20 percent or more of the sites' annual operating budgets. For the purposes of this report, we refer to these sites as high-revenue sites. At sites with backlogs of needs for maintenance, resource preservation and protection, and visitor services, this level of additional revenues will be sufficient to eliminate the backlogs over several years--assuming the program is extended and that existing appropriations remain stable. And, at sites with small or no backlogs, the additional revenues will support further site development and enhancement. However, the agencies selected demonstration sites not necessarily because of their extent of unmet needs for repairs, maintenance, or resource preservation, but rather because of their potential to generate fee revenues. At sites outside the demonstration program or sites that do not collect much fee revenues, the backlog of needs may remain or further development of the site may not occur. As a result, some of the agencies' highest-priority needs may not be addressed. This potential for inequity among sites raises questions about the desirability of the current legislative requirement that at least 80 percent of the fee revenues be expended at the collecting site."(4)
Clearly, the Fee Demonstration Project will continue to provide supplementary funding for agencies maintenance and constructions needs, but that funding will be insufficient to cover all needs. Those sites or units that receive fewer visitors, such as a number of the less well-known and remote national park and national wildlife refuge units in Alaska, will generate little in the way of revenue to supplement their budgets for maintenance or construction. By directing use of the federal side of the LWCF to be used to fund maintenance and repair of existing facilities and construction of new facilities to serve visitors rather than for acquisition of additional private lands, Congress can better focus agencies' attentions on prioritizing and clearing their maintenance and construction backlog. The result will be better care for public assets and better service to the public.
Congressional Oversight of Federal Land Acquisition Should be Increased
This Commission is greatly concerned about the decrease in Congress' oversight of federal land acquisition programs which would result from passage of either H.R. 701 or S. 25. We believe that by-passing the annual appropriations process through creation of a dedicated fund will remove a critical check on agencies' discretionary authorities to acquire lands. We have already discussed the agencies' ability to thwart the prohibition on condemnation of properties through various means. Additionally, we believe that requiring Congressional approval for any acquisition over $1 million, as found in H.R. 701 provides adequate protection for small property owners. It is our understanding that most acquisitions would not exceed the $1 million threshold. The $5 million threshold established under S. 25 is certainly too high. The current appropriations process which involves Congressional oversight of all agency acquisition proposals should be retained.
In acknowledging that land acquisition will likely continue, this Commission has some suggestions for increasing Congressional oversight of acquisition activities and agencies' public accountability. We believe that these suggested changes would be beneficial if the current LWCF appropriations process is retained or if Congress should decide to create the dedicated trust.
Currently, Section 6(d) of the LWCF Act (16 USC Sec. 4601-8(d)) requires States to have an approved comprehensive statewide outdoor recreation plan in order to qualify for financial assistance. The Act provides guidance on what should be included in a plan, as well as guidance for public participation. Both H.R. 701 and S. 25 propose amendments to this section.
The amendments would require each state to prepare a "State Action Agenda for Community Conservation and Recreation." The amendments require each state to develop its Action Agenda "in partnership with its local governments and federal agencies, and in consultation with it citizens." Further, agendas must be updated every 4 years and extensive coordination with other federal, state, regional, and local plans for parks, recreation, open space and wetlands conservation is required.
Conversely, with respect to the federal side of the LWCF, both bills simply allocate a percentage of the Outer Continental Shelf revenues for federal acquisition of lands, waters or interests in land or water within the exterior boundaries of areas of the National Forest System, National Park System, National Wildlife Refuge System, or other land management unit established by Congress, subject to the other restrictions previously discussed.
Neither the existing LWCF Act, nor these two bills contain any requirements or guidelines for federal agencies to follow in developing or updating their land acquisition programs. There are, of course, various internal agency policies, guidelines, manuals and handbooks for development of land protection plans or land acquisition plans by each agency. The National Environmental Policy Act and its implementing regulations have public participation requirements for those instances where acquisition activities must comply with provisions of that statute. We have already discussed the land acquisition provisions in ANILCA. However, to our knowledge, there is no over-arching set of standards or guidelines in statute for establishing land acquisition priorities, coordinating with state and local governments, recognizing and protecting private property rights and providing for public participation in the process.
The Commission strongly believes that the interests of the public in general and private property owners in particular would be served by development of uniform statutory standards and guidelines for land acquisition by all federal land management agencies. Such statutory guidelines are absolutely critical should Congress decide to create a dedicated fund for acquisition, as proposed by H.R. 701 and S. 25. In the event that a dedicated fund is not established and the allocation of LWCF moneys remains subject to the annual appropriations process, uniform standards and guidelines, outlined in statute, would still be of great benefit.
These standards and guidelines should include requirements for periodic review by both the responsible agency and the public. Agencies should be required to justify its acquisition needs for each individual parcel. Much of the justification we have seen in land protection plans is "boilerplate" or generic in nature and more reflective of an agency's desire to simply eliminate private lands from a unit rather than a compelling resource based need to acquire a parcel. We would also encourage inclusion of a nationally applied requirement, similar to that referenced above for Alaska, which requires an agency to first offer unreserved federal lands in exchange before acquiring land by any other means. Many of the individual agencies' internal policies and guidelines are adequate, but in light of what we see as an increase in land acquisition, it would be preferable to standardize them and include them in statute. This Commission would welcome the opportunity to work with your respective Committee staffs in developing these standards and guidelines.
In conclusion, the Citizens' Advisory Commission in Federal Areas strongly opposes the creation of a dedicated fund for a federal land acquisition program. The history of problems and abuses of property owners by federal agencies cannot be allowed to be repeated. We believe that any program that would provide federal agencies with a steady stream of funds for land acquisition and which would reduce rather than strengthen Congressional oversight of their activities must be avoided. We urge both the House Committee on Resources and the Senate Energy and Natural Resources Committee to revise H.R. 701 and S. 25 accordingly. The Commission appreciates the opportunity to comment and looks forward to working with both committees to craft legislation that provides benefits to all Americans without jeopardizing important private property rights.
Sincerely,
Stan Leaphart
Executive Director
1. Despite the ANILCA 1302 provision requiring that suitable lands be offered in exchange before acquisition can occur, Congress apparently believed additional restrictions on agencies' acquisition authorities were necessary. The Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999 (Public Law 105-277) contains the following amendment to this section:
"SEC. 127. Notwithstanding any other provision of law, none of the funds provided in this Act or any other Act hereafter enacted may be used by the Secretary of the Interior, except with respect to land exchange costs and costs associated with the preparation of land acquisitions, in the acquisition of State, private, or other non-federal lands (or any interest therein) in the State of Alaska, unless, in the acquisition of any State, private, or other non-federal lands (or interest therein) in the State of Alaska, the Secretary seeks to exchange unreserved public lands before purchasing all or any portion of such lands (or interest therein) in the State of Alaska."
2. The history of the problems experienced by the Kantishna claim owners and this legislative solution should be examined closely. An argument has been made that the prohibition in H.R. 701 and S. 25 against use of LWCF funds for condemnation of any interest in property does not, in fact, provide any meaningful protection for private property owners. The argument is that under a condemnation proceeding the courts, rather than the agency, would fix the compensation at fair market price. This would be more consistent with the Fifth Amendment and its "takings" provisions and would prevent the agency from reducing the value of a property through restrictive management actions or acquisition of interests in adjoining properties. This is not to suggest that this Commission supports condemnation as a means of land acquisition, rather that any federal land acquisition program is a threat to private property rights.
3. At least two General Accounting Office reports address this issue. See: GAO/RCED-98-143. National Park Service- Efforts to Identify and Manage the Maintenance Backlog (May 1998) and GAO/OCG-99-9. Major Management Challenges and Program Risks- Department of Interior (January 1999).
4. GAO/RCED-99-7. Demonstration Fee Program Successful in Raising Revenues But Could Be Improved (November 1998), page 44.
Be informed! Don't allow yourself to be snowed by CARA.
Email us with questions or comments about this web site.
All pages on this website are ©1999-2006, American Land Rights Association. Permission is granted to use any and all information herein, as long as credit is given to ALRA.
