Environmental Protection Outweighs Development in Ninth Circuit Ruling on Alaska Lands Act

Kenneth L. Rosenbaum

Editors' Summary: Congress passed the Alaska National Interest Lands Conservation Act in 1980 to resolve the uncertainty over the fate of federal holdings in Alaska and speed transfer of lands owed to the state and natives. The Act puts millions of acres under protective management and prescribes the rights of inholders and natives. The Ninth Circuit, in the first appellate decision applying the Act to lands in Alaska, ruled that the Act requires the Forest Service to prepare an EIS before granting a special use permit to U.S. Borax for bulk sampling of its molybdenum claims in Misty Fjords National Monument. The court's interpretation heavily emphasized the Act's environmental purposes. Though the section of the Act at issue was narrow, the court's environmental reading could bear on other Alaska lands issues, notably control of access to other inholdings.

[13 ELR 10066]

In January 1983, the Ninth Circuit ruled on Southeast Alaska Conservation Council, Inc. v. Watson, (SEACC)¹ the first appellate decision applying the Alaska National Interest Lands Conservation Act (ANILCA)² to Alaska lands. The court came down squarely on the environmentalist side, requiring the Forest Service to prepare an environmental impact statement (EIS) before approving the mining activities proposed by U.S. Borax at Misty Fjords National Monument. Although the statutory provision³ involved is narrow, dealing specifically with mining at Misty Fjords, the Ninth Circuit's strict environmental reading of the statute may well set the tone for future conflicts between development and conservation under ANILCA.

ANILCA puts over 100 million acres in Alaska under federal protection and specifies how each parcel is to be managed.⁴ The Act is an offspring of the Alaska Native Claims Settlement Act of 1971 (ANCSA).⁵ ANCSA gave Alaskan native corporations the right to acquire 44 million acres of federal land.⁶ When ANCSA was passed, the federal government also owed the State of Alaska more than 100 million acres, promised in the Statehood Act.⁷ To ensure that the nation would not lose choice wild lands to commercial exploitation, § 17(d) of ANCSA directed the Secretary of the Interior to study the federal holdings in Alaska and reserve lands of national interest.⁸ The Secretary was to make a recommendation to Congress on these "d-2" lands by 1973;⁹ the lands were to be reserved until 1978 while Congress decided which lands to preserve permanently.

The Secretary duly reserved almost 80 million acres,¹⁰ but a contentious Congress could not agree on a preservation bill. Many bills were introduced. In 1978 one passed the House, but none passed the Senate before the 1978 deadline.¹¹

In November of 1978, to preserve the status quo until Congress reached an agreement, the Secretary of the Interior removed over 110 million acres from public entry,¹² claiming emergency powers under § 204(e) of the Federal Land Policy and Management Act.¹³ A month later, the President created 17 national monuments with over 55 million acres,¹⁴ claiming authority under the Antiquities [13 ELR 10067] Act of 1906.¹⁵ Both these actions were controversial, and many lawsuits were threatened.¹⁶

In the closing months of the Carter Administration, Congress finally agreed on an Alaska lands bill, the present ANILCA. Though the Act put millions of acres under protection, it also freed millions of acres for future development and went far to settle the law governing development of Alaska lands.

Surprisingly detailed, the Act covers 181 pages in the Statutes at Large.¹⁷ The space is taken up not by descriptions of lands, but largely by directives on land management and delineation of special rights. The Act sets general management goals for each parcel, occasionally setting out in detail the rights of inholders. One such inholder provision, § 503,¹⁸ covering mining at Misty Fjords, was the subject of SEACC. The Act also sets out general privileges for inholders, notably the right to access,¹⁹ and for natives, notably the right to subsistence harvest of renewable resources.²⁰

Despite the sweep of the statute, its sheer length and the amount of land involved, ANILCA will not spawn much litigation compared to other environmental statutes of the last decade. First, ANILCA primarily deals with only one state. Second, while many environmental statutes are "fence in" laws, restricting established uses of property, ANILCA is largely a "fence out" measure, restricting new investment and development. Those fenced in often have the economic, emotional, and legal incentive to litigate; those fenced out walk away or turn to sources other than the courts for relief.²¹

Third, ANILCA's strictures do not lend themselves to puzzled piecing together of legislative intent; the law is clear-cut. Part of ANILCA is unambiguous delineation of property boundaries. Another significant part sets land management standards, but draws on management classifications (e.g., national park, wilderness) or procedures (e.g., EIS drafting) whose meanings are well settled. The litigation, when it comes will concern parties like U.S. Borax in SEACC: inholders with vested interests limited by ANILCA. SEACC, or its rationale, will apply to such cases.

The facts of SEACC are straightforward.²² Defendant U.S. Borax claims mineral rights to the enormous molybdenum deposits at Quartz Hill in Misty Fjords. The area could support active mining for an estimated 70 years, uncovering 10 percent of the world's known molybdenum reserves and excavating a pit 2.1 by 1.3 miles.²³ The pit and its associated ore handling facilities will be in the midst of the "essentially untouched" 1.453 million acre national monument. Three important salmon spawning rivers flow near the mine, and the nearby estuaries are also important fish nurseries.²⁴

In 1976 Borax applied to the Forest Service for a special use permit for an access road and for bulk sampling of its deposit. Bulk sampling involves sinking test shafts and removing and crushing samples to ore to evaluate a deposit's extent and quality. Borax wished to sink 3,000 to 7,000 feet of twelve- by eight-foot shafts, removing tens of thousands of tons of rock.²⁵ Only a small part of the excavated rock is actually removed from the site for analysis. The rest presumably is disposed of somewhere near the mine.

The Forest Service prepared an EIS on the 1976 proposal and approved it, but on December 1, 1978, the same day the President declared Misty Fjords a national monument, the Secretary of Agriculture reversed the Forest Service's approval, finding that Borax should use helicopters instead of building an access road.²⁶ In 1979, Borax applied to do bulk sampling using helicopters for access, but the Forest Service withheld approval pending an in-depth environmental analysis of the project. In 1980, before ANILCA became law, Borax did receive approval for a three-year plan of operations that did not involve bulk sampling.

In drafting ANILCA, Congress specifically considered the Quartz Hill mine and the proposed bulk sampling.²⁷ Section 503(h) of ANILCA reflects Congress' decision. The Forest Service was to prepare a new EIS covering "an access road for bulk sampling purposes and the bulk sampling phase proposed by United States Borax."²⁸ The Secretary of Agriculture was then to decide whether to grant a special use permit to Borax. The grounds for refusal were narrow,²⁹ and provision was made for expedited judicial review of the decision.³⁰ The law seemed to assure Borax that it would get an access road eventually, if it asked for one.

But Borax did not explicitly propose bulk sampling after ANILCA became law; instead it proposed certain amendments to its three-year plan of operations. The amendments did not involve building an access road, but they did call for most of the tunneling and construction involved in the previous "bulk sampling" proposals. The Forest Service prepared an environmental assessment of the proposals, made a finding of no significant impact, and approved the amendments. Borax began operations.

Plaintiff sought and was denied a stay pending administrative appeal, and so sought relief in federal court. The district court first ruled³¹ that under ANILCA, the Forest [13 ELR 10068] Service must prepare an EIS before approving bulk sampling at Quartz Hill even if no access road is proposed. The court remanded the case to the Forest Service. Upon remand, the Forest Service again approved the Borax amendments without preparing an EIS. The district court then reversed the Forest Service's approval, finding by law that the proposed activities constituted bulk sampling.³²

On appeal, the Ninth Circuit resolved three issues. First, the court decided that the district court was within its discretion in hearing the case before plaintiff had exhausted its administrative remedies.³³ This question involves well-settled administrative law; when delay threatens irreparable harm the court may properly hear the case.³⁴ The Ninth Circuit did not consider whether the district court should have enjoined Borax from mining at Quartz Hill but stayed its own final judgment pending administrative appeal. The district court was within its discretion in continuing on to the merits of the case.

Second, the court interpreted § 503(h)(3) of ANILCA to require an EIS for proposed bulk sampling even though no access roads are proposed.³⁵ The section is ambiguous.³⁶ It requires an EIS be prepared before the Forest Service grants permission for an access road and bulk sampling. Borax read the section to require an EIS before permission is granted for both.Plaintiffs read the section to require an EIS before permission is granted for either.

Borax supported its reading by noting that Congress' main concern in § 503(h) is with the off-site access road, not with on-site sampling.³⁷ Most of the detailed directives of § 503(h)(3) deal with the access road. Congress gave general, qualified approval to on-site activities in § 503(f)(2). Read in this light, Borax argued, § 503(h)(3) really requires that only the access road wait until and EIS is done.

But the court found that Congress was concerned with preserving the environmental values of the monument regardless of whether thethreat to them was on-site or off-site. The general declaration of purposes in § 101³⁸ and the more specific declaration for Misty Fjords in § 503 show Congress intended to protect the environment. The court found the approval for on-site activities in § 503(f)(2) to be quite narrow. Such activities must be compatible with the monument's purposes "to the maximum extent feasible,"³⁹ a strict standard. The court held that to be consistent with the Act's conservation purposes, § 503(h)(3) must be read to require an EIS before approving bulk sampling even if no access road is involved.

Third, the court ruled that Borax's proposed activities were, by law, bulk sampling, and that the Forest Service acted arbitrarily and capriciously in not finding them so.⁴⁰ Though ANILCA does not define bulk sampling, the court noted that Congress had Borax's past proposals in mind when it wrote § 503(h). In fact, § 503(h)(3) refers to the Forest Service EIS on Borax's 1976 bulk sampling proposal.⁴¹ Since Borax's amendments were in all significant ways similar to the previously proposed bulk sampling, the current amendments must constitute bulk sampling.

Of these three issues, the second is the one for which the case will most often be cited, and not for the court's holding, but for its rationale. Long statutes written by committee tend to have inconsistencies and ambiguities; ANILCA has it share. For example, the very section at issue in SEACC, § 503, directs the Secretary not to allow construction of an access road for bulk sampling if it threatens "unreasonable risk of significant irreparable damage to the habitats of viable populations of fish management indicator species."⁴² The provision was included to protect the valuable spawning areas in Misty Fjords. However, § 1110(b) of ANILCA says "[n]otwithstanding any other provisions of this Act [owners of mining claims] shall be given by the Secretary such rights as may be necessary to assure adequate and feasible access for economic and other purposes … subject to reasonable regulations …."⁴³ Section 503 would deny access under particular circumstances; § 1110 would never deny access. If those particular circumstances arise, which section should control? The specific provisions of § 503 would make little sense if § 1110 controls. Yet § 1110 explicitly overrides all other sections of the Act. A court following the SEACC rationale would enforce § 503 over § 1110, deferring to the conservation purposes of the Act.⁴⁴

Time will tell whether the great weight the court gave to environmental values in SEACC will set the tone for future ANILCA rulings. Since the Ninth Circuit, whose jurisdiction includes Alaska, will hear most of the ANILCA cases, SEACC likely will prove to be a key case in the judicial development of the statute.

1. 13 ELR 20233 (9th Cir. Jan. 31, 1983).

2. Pub. L. No. 96-487, 94 Stat. 2371 (1980) (codified in scattered sections of 16 & 43 U.S.C.).

3. ANILCA, Pub. L. No. 96-487, § 503(h)(3), 94 Stat. 2371, 2400 (1980) (uncodified).

4. For an overview of ANILCA, see S. REP. No. 96-413, 96th Cong., 2nd Sess., reprinted in 1980 U.S. CODE CONG. & AD. NEWS 5070 [hereinafter cited as SENATE REP.]

5. Pub. L. No. 92-203, 85 Stat. 688 (1971) (current version at 43 U.S.C. §§ 1601-1628 (1976 & Supp. IV 1980)).

6. 43 U.S.C. § 1611 (1976); see also SENATE REP., note 4 supra, at 12.

7. Pub. L. No. 85-508, § 6(b), 72 Stat. 339 (1958) (codified in note prec. 48 U.S.C. § 21 (1976)).

8. 43 U.S.C. § 1616(d) (1976).

9. The term "d-2" refers to ANCSA § 17(d)(2), 43 U.S.C. § 1616(d)(2), empowering the Secretary to reserve the lands.

10. See SENATE REP., note 4 supra, at 132.

11. See id. at 134.

12. Reported one month later in 43 Fed. Reg. 59756 (Dec. 21, 1978).

13. 43 U.S.C. § 1714(e), ELR STAT. 41462.

14. See Comment, Congressional Stall Prompts Administrative Actions to Protect the Alaska National Lands, 8 ELR 10245 (1978).

15. 16 U.S.C. § 431 (1976).

16. See SENATE REP., note 4 supra, at 133.

17. 94 Stat. 2371-551 (1980).

18. Uncodified.

19. E.g., 16 U.S.C. §§ 3170-3171 (Supp. IV 1980).

20. ANILCA Title VIII, 16 U.S.C. §§ 3111-3126 (Supp. IV 1980). For other major provisions of the Act, see SENATE REP., note 4 supra.

21. E.g., Congress. See H.R. 1230, 129 CONG. REC. H290, E252 (daily ed. Feb. 2, 1983), which would amend ANILCA to allow commercial fishing in Glacier Bay Wilderness.

22. Except as noted, the discussion of facts is taken from the court's opinion, 13 ELR 20233-34.

23. Brief for Appellee at 2, Southeast Alaska Conservation Council, Inc. v. Watson, Nos. 82-3026, -3241, 13 ELR 20233 (9th Cir. Jan. 31, 1983).

24. Id. at 7-8.

25. Id. at 10.

26. Opening Brief of Appellants Pacific Coast Molybdenum Co. and U.S. Borax & Chemical Corp. at 9, Southeast Alaska Conservation Council, Inc. v. Watson, Nos. 82-3026, -3241, 13 ELR 20233 (9th Cir. Jan. 31, 1983).

27. See SENATE REP., note 4 supra, at 509-10; 126 CONG REC. S11196-97 (daily ed. Aug. 19, 1980) (remarks of Sens. Stevens, Tsongas, & Jackson); 126 CONG. REC. H10533 (daily ed. Nov. 12, 1980) (remarks of Rep. Udall).

28. ANILCA § 503(h)(3), 94 Stat. 2400.

29. Id. § 503(h)(4).

30. Id. § 503(h)(5).

31. Southeast Alaska Conservation Council, Inc. v. Watson, 526 F. Supp. 202, 12 ELR 20187 (D. Alaska 1981).

32. Southeast Alaska Conservation Council, Inc. v. Watson, 535 F. Supp. 653, 12 ELR 20658 (D. Alaska 1982).

33. SEACC, 13 ELR at 20234-35.

34. See Aleknagik Natives Ltd. v. Andrus, 648 F.2d 496, 499 (9th Cir. 1980); Rhodes v. United States, 574 F.2d 1179, 1181 (5th Cir. 1979).

35. SEACC, 13 ELR at 20235-36.

36. "The Secretary shall prepare [an EIS] which covers an access road for bulk sampling purposes and the bulk sampling phase proposed by United States Borax…." ANILCA § 503(h)(3), 94 Stat. 2400.

It is interesting to speculate why Congress let this ambiguity slip by it. Congress may have assumed that since the Act all but conceded an access road to Borax, Borax would be content to wait for an EIS on the project. Congress did not contemplate that Borax would try to get around the EIS requirement by foregoing the access road.

37. Borax's arguments are in Opening Brief of Appellants, note 26 supra, at 16-35.

38. 16 U.S.C. § 3101 (Supp. IV 1980).

39. ANILCA § 503(f)(2), 94 Stat. 2400.

40. SEACC, 13 ELR at 20234-37.

41. "This EIS shall incorporate all relevant data and other information included in the EIS previously prepared by the Secretary on access to the Quartz Hill area." ANILCA § 503(h)(3), 94 Stat. 2401.

42. Id. § 503(h)(4)(A).

43. 16 U.S.C. § 3170(b) (Supp. IV 1980). The conflict is discussed in Comment, Preservation and Strategic Mineral Development in Alaska: Congress Writes a New Equation, 12 ENVTL. L. 137, 180-82, 190-95 (1981).

44. The SEACC court did not reach this issue because it is not ripe. Borax has not yet requested a use permit for an access road, and the Forest Service has not yet applied and § 503(h)(4)(A) standard to a road request.