2017-01199. BLM Director's Response to the Alaska Governor's Appeal of the BLM Alaska State Director's Governor's Consistency Review Determination for the Eastern Interior Proposed Resource Management Plan and Final Environmental Impact Statement

AGENCY:

Bureau of Land Management, Interior.

ACTION:

Notice.

SUMMARY:

This notice contains the Director of the Bureau of Land Management's (BLM) response to the Alaska Governor's appeal of the BLM Alaska State Director's response to the State of Alaska's Governor's consistency review letter for the Eastern Interior Proposed Resource Management Plan (PRMP) and Final Environmental Impact Statement (FEIS). The BLM Director determined not to accept the recommendations of the Alaska Governor's consistency review letter.

FOR FURTHER INFORMATION CONTACT:

Leah Baker, Division Chief for Decision Support, Planning and NEPA, at 202-912-7282. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Relay Service (FRS) at 1-800-877-8339 to contact the above individual during normal business hours. FRS is available 24 hours a day, 7 days a week, to leave a message or question with the above individual. You will receive a reply during normal business hours.

SUPPLEMENTARY INFORMATION:

On July 29, 2016, the BLM released the PRMP and FEIS for the Eastern Interior Resource Management Plan in Alaska. In accordance with the regulations at 43 CFR 1610.3-2(e), the BLM submitted the PRMP and FEIS for a 60-day Governor's Consistency Review. On September 28, 2016, the Governor of Alaska submitted a Governor's Consistency Review letter to the BLM Alaska State Director asserting inconsistencies between the PRMP and State land use plans, programs, and policies.

After careful consideration of the concerns raised in the Governor's Consistency Review letter, the State Director decided not to adopt the recommendations made by the Governor. On October 12, 2016, the State Director sent a written response to the Governor describing the reasons for which the State Director believes that the PRMP is consistent with State land use plans, policies, and programs.

On November 8, 2016, the Governor appealed the BLM Alaska State Director's decision to not accept his recommendations to the BLM Director. In the Governor's appeal letter, the State of Alaska requested the BLM Director to reconsider the issues and recommendations raised in the Governor's Consistency Review letter. The BLM Director issued a final response to the Governor that declined to accept the recommendations of the Governor and affirmed the BLM State Director's decision. Pursuant to 43 CFR 1610.3-2(e), the basis for the BLM Director's determination on the Governor's appeal is published verbatim below.

“This letter addresses your appeal of the response provided by the Bureau of Land Management (BLM) Alaska State Director regarding your consistency review of the Eastern Interior Proposed Resource Management Plan and Final Environmental Impact Statement (referred to hereafter as the PRMP or plan). The Governor's consistency review is an important part of the BLM land use planning process, and we appreciate the significant time and attention that you and your staff have committed to this effort.

The BLM developed the Eastern Interior PRMP with extensive local involvement. As a result of more than 15 months of public comment periods, we received 590 comments, including those from the State of Alaska, Chalkyitsik Village Council, Gwichyaa Zhee Gwich'in Tribal Government, miners from the Fortymile area, and industry groups. Of the total comments, 171 submissions were from rural Alaska residents who qualify as Federal subsistence users. All of these stakeholder groups provided important information about their current and anticipated future uses of the lands in the planning area.

I believe that this effort has led to the creation of a strong resource management plan that properly balances responsible development with the protection and conservation of subsistence use, important habitats for fish and wildlife, and other special values in the planning area. For example, the plan recommends opening more than one million acres of currently-withdrawn lands to mineral location, entry, and leasing, while also providing protection of priority habitats for caribou, Dall sheep, and other wildlife critical for subsistence use.

The applicable regulations at 43 CFR 1610.3-2(e) provide you with the opportunity to appeal the State Director's decision to not accept the recommendations you made in your consistency review letter. These regulations also guide my review of your appeal. In reviewing your appeal, I must first consider whether you have identified inconsistencies with State or local plans, policies, or programs. If such inconsistencies are identified, I then must consider whether your recommendations both address the inconsistencies and provide for a reasonable balance between the national interest and the State's interest.

In your consistency review letter, you identified three key issues that the Alaska State Director determined to be outside the scope of the Governor's consistency review: The PRMP is inconsistent with Federal statutes implementing the goals of the Alaska Statehood Act that protect the State's resource management responsibilities; the PRMP is inconsistent with previous BLM plans and the BLM's multiple use mandate; and the PRMP frustrates the State and Federal governments' obligations under the Statehood Act and the Alaska Land Transfer Acceleration Act.

Your letter also stated that the PRMP is inconsistent with State land use plans, programs, and policies, which the State Director responded to in greater depth. While you raised multiple issues in both your consistency review and appeal letters, your overarching recommendation to address these issues was to revoke all Alaska Native Claims Settlement Act (ANCSA) 17(d)(1) withdrawals. Further, in your consistency review letter, you requested that recommendations for new mineral withdrawals be removed.

As described in this letter and supported by the State Director's response to your consistency letter, there is a strong national interest in protecting subsistence use and conserving important habitats for fish and wildlife. I find that the recommendations in your letter do not meet the standard for granting your appeal. I agree with the State Director that the issues dismissed in the response to your consistency review do not identify inconsistencies with State resource related plans, policies, or programs. Nevertheless, I have fully considered these issues as well as your responses to the State Director's findings. Below is my review of the issues and recommendations presented in your appeal letter.

1. The plan does not respect the congressional mandate in the Alaska National Interest Lands Conservation Act (ANILCA) to make multiple use lands not already designated as conservation system units available for intensive use, and instead applies layers of protective measures to buffer conservation system units within the planning area (e.g., the Fortymile Wild and Scenic River).

Upon review, I have determined that the PRMP is consistent with the provisions of ANILCA. As you are aware, ANILCA § 101(d) states that the designation and disposition of the public lands pursuant to this Act represent a proper balance between the reservation of national conservation system units and those public lands necessary and appropriate for more intensive use and designation, further stating that Congress believes the need for future legislation designating new conservation system units, new national conservation areas, or new national recreation areas, to be “obviated.” The PRMP does not recommend designating any new conservation system units, national conservation areas, or national recreation areas, but rather recommends revoking ANCSA 17(d)(1) withdrawals on a total of approximately 1.7 million acres in order to open these lands to mineral location entry and leasing, including 1.1 million acres of the Fortymile Subunit. While the PRMP does recommend new withdrawals under the Federal Land Policy and Management Act (FLPMA), this action is not precluded by ANILCA. Specifically, ANILCA (§ 1326(a)) outlines a process for withdrawing lands in Alaska, which indicates that Congress did envision the possibility of future withdrawals. Such withdrawals are consistent with ANILCA and Secretarial withdrawal authorities. The PRMP recommends only temporarily retaining the ANCSA 17(d)(1) withdrawals until new withdrawals under FLPMA can be enacted in these areas.

2. The plan relies on outdated ANCSA 17(d)(1) withdrawals to support restrictions on access, use, and resource development instead of recognizing that existing Federal and State environmental laws and regulations already protect resource values.

The BLM recognizes that Federal and State laws and regulations provide for the protection of resource values. FLPMA and its implementing regulations are included among these Federal laws. FLPMA mandates that the BLM manage on the basis of multiple use and sustained yield, and makes clear that the term “multiple use” does not mean that every use is appropriate for every acre of public land. Rather, the Secretary can “make the most judicious use of the land for some or all of these resources or related services over areas large enough to provide sufficient latitude for periodic adjustments inuse . . .” (FLPMA § 103(c)).

In your appeal letter, you reference Article 8, Section 2 of the Alaska State Constitution, which states, “[t]he legislature shall provide for the utilization, development, and conservation of all natural resources belonging to the State, including land and waters, for the maximum benefit to the people.” You also highlight similarities between State statutes and FLPMA, both of which provide for the balance of resource development and conservation. While section 102 of FLPMA expresses Congressional policy that public lands be managed in a manner which recognizes the Nation's need for domestic sources of minerals, that same section also references protection of the quality of scientific, scenic, historical, ecological, environmental, air and atmospheric, water resource, and archeological values, and FLPMA section 103(c) expressly includes similar values in its definition of multiple use (including values such as “recreation . . . . wildlife and fish, and natural scenic, scientific, and historical values”).

The BLM also recognizes that all of the ANCSA 17(d)(1) withdrawals should not remain in place. As previously mentioned, the PRMP recommends revoking ANCSA 17(d)(1) withdrawals on approximately 1.7 million acres to open these lands for mineral entry. The PRMP recommends retaining certain portions of these withdrawals, but only until recommended withdrawals under FLPMA can be put in place. The PRMP also recommends eventual revocation of all ANCSA 17(d)(1) withdrawals to clean up the land record and remove duplicate withdrawals.

Your appeal states that the plan provides no explanation as to why existing laws and regulations provide insufficient protection for resource values. However, I find that the effects of the proposed alternative, including the rationale for these actions, are adequately analyzed and disclosed in the PRMP/FEIS. I concur with the determination in the PRMP that additional protections, such as FLPMA withdrawals to protect water quality and river values, are warranted.

3. The plan frustrates the State's ability to prioritize land selections and interferes with the State's ability to develop a resource-based economy.

While I have fully considered your concerns, I concur with the State Director's response that these statements do not identify inconsistencies with State plans, policies, or programs. In your appeal, you state that the PRMP impedes the State's ability to prioritize land selections. Based on analysis completed by BLM Alaska in June 2016, only an estimated 197,100 acres of the State's top three priorities of top-filed lands are encumbered solely by 17(d)(1) withdrawals on a statewide basis. Affected lands within the planning area would be even less. The State is currently over-selected on their land entitlement by 242 percent.

Further, in regards to the assertion that retaining 17(d)(1) withdrawals interferes with the State's ability to explore, locate, and define the mineral resource on large tracts of lands identified for selection, all State and Native-selected lands are segregated from mineral entry. Should 17(d)(1) withdrawals be revoked, the lands are not open to the staking of mining claims until the selections are relinquished, including State selections. Once a 17(d)(1) withdrawal is revoked and the State's top-filing attaches to a selection, the State's selection itself segregates the land and makes it unavailable for mining claims, until such time as the selection is requested by the State and tentatively approved. For the reasons described throughout this letter, I do not think the plan will interfere with the State's ability to develop a resource-based economy, but that the PRMP will promote future opportunities for mineral exploration and development, where appropriate.

4. The plan does not provide sustainable opportunities for mineral exploration or development consistent with State area plans, including areas in the White Mountain National Recreation Area (NRA) that have high potential for rare earth elements.

In your consistency review and appeal letters, you assert that the PRMP preempts mineral exploration and development, and by doing so, the PRMP is inconsistent with State plans, policies, and programs. However, I concur with the State Director's finding that the PRMP is consistent with the State's plans, policies, and programs, including the State's policy to make mineral resources available for development. As noted in the State Director's response, the PRMP recommends revoking ANCSA 17(d)(1) withdrawals on 1.7 million acres to open lands to mineral location, entry, and leasing, including 1.1 million acres in the Fortymile Subunit, 4,000 acres in the White Mountains Subunit, 547,000 acres in the Draanjik (Upper Black River) Subunit adjacent to State and State-selected land, and 30,000 acres in the Steese Subunit adjacent to State land. These recommendations are consistent with making mineral resources available for mineral development.

Moreover, revoking the ANCSA 17(d)(1) withdrawals would not allow for new mining claims in the White Mountains NRA, as that area would remain withdrawn from the mining law by ANILCA. As noted in the response to comments on FEIS pp. 1520-1521, the PRMP recommends maintaining the ANILCA withdrawals for the Steese NCA and White Mountains NRA. It also recommends to the Secretary that the ANCSA 17(d)(1) withdrawals (Public Land Orders 5180 and 5179) be revoked as applied to these areas since they are duplicative of the ANILCA withdrawals and thus not necessary. Additionally, Public Land Order 5180 does not close the national conservation area to location of metalliferous mining claims (such as gold), so its protective effect is limited. Removing the 17(d)(1) withdrawals would clean up the public land record by removing duplicative withdrawals, but it would not result in opening the lands to the mining law.

Your overarching recommendation is to revoke all ANCSA 17(d)(1) withdrawals, unconditionally. However, based on the foregoing, I find that the recommendations provided in your appeal letter do not meet the standard identified above for granting an appeal in accordance with 43 CFR 1610.3-2(e). Therefore, I affirm the Alaska State Director's response to your finding of inconsistency and respectfully deny your appeal. The reasons outlined above for my decision on your appeal will also be published in the Federal Register pursuant to the applicable BLM regulations.

Further, please note that the BLM gave due consideration to the State's concerns raised in the protest letter dated August 29, 2016. For a detailed response to these issues, many of which were raised in your consistency review letter, I refer you to the Director's Protest Resolution Report.

The BLM and the State of Alaska have a long history of working cooperatively on the development of resource management plans. I appreciate the resources and input that you and your staff have put into the process of developing the PRMP for the Eastern Interior planning area. As mentioned, I believe this plan balances responsible development with the protection and conservation of subsistence use, important habitats for fish and wildlife, and other special values. I look forward to our continued coordination as our teams work together to implement this plan.”

Authority: 43 CFR 1610.3-2(e).

Kristin Bail,

Assistant Director, Resources and Planning.