[House Report 108-313]
[From the U.S. Government Publishing Office]
108th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 108-313
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CAPE FOX LAND ENTITLEMENT ADJUSTMENT ACT OF 2003
_______
October 15, 2003.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Pombo, from the Committee on Resources, submitted the following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 1899]
[Including cost estimate of the Congressional Budget Office]
The Committee on Resources, to whom was referred the bill
(H.R. 1899) to resolve certain conveyances and provide for
alternative land selections under the Alaska Native claims
Settlement Act related to Cape Fox Corporation and Sealaska
Corporation, and for other purposes, having considered the
same, report favorably thereon without amendment and recommend
that the bill do pass.
PURPOSE OF THE BILL
The purpose of H.R. 1899 is to resolve certain conveyances
and provide for alternative land selections under the Alaska
Native Claims Settlement Act related to Cape Fox Corporation
and Sealaska Corporation, and for other purposes.
BACKGROUND AND NEED FOR LEGISLATION
H.R. 1899, the ``Cape Fox Land Entitlement Adjustment Act
of 2003,'' provides for a land exchange involving the Cape Fox
Corporation, Sealaska Corporation, and the U.S. Forest Service
in the Tongass National Forest, Alaska. The bill addresses an
inequity regarding the Cape Fox Corporation arising under the
Alaska Native Claims Settlement Act of 1971. The bill also
rationalizes land ownership patterns, simplifies boundaries,
and resolves ``split estate'' problems in the Tongass National
Forest. The land exchange will enable Sealaska and Cape Fox to
acquire lands adjoining an existing gold mine project.
The Cape Fox Corporation is the Village Corporation
organized pursuant to the Alaska Native Claims Settlement Act
of 1971 (ANCSA) for the Native Village of Saxman, which is
located near Ketchikan in the southeast panhandle of Alaska.
Sealaska is the Regional Corporation for Natives from the
entire southeast region of Alaska. Both corporations have
holdings of surface and subsurface estate in varying patterns
in the Tongass National Forest, which comprises most of
Southeast Alaska.
Under ANCSA, a village corporation in Southeast Alaska was
required to select 23,040 acres of withdrawn public land in the
core township in which the Native Village is located, and to
the extent necessary, lands contiguous to or cornering such
township. With the exception of Cape Fox, all other Southeast
Alaska village corporations were restricted from selecting
lands within two miles of a home rule city. Cape Fox was
restricted from selecting lands from within six miles from the
home rule City of Ketchikan. The six-mile restriction precluded
Cape Fox from selecting valuable timber lands, industrial
sites, and other commercial property within that area, leaving
only the remote mountainous northeast corner of Cape Fox's core
township, which is nonproductive and of no economic value,
available for selection.
Cape Fox's land selections were further limited because the
Annette Island Indian Reservation is within its selection area,
and those lands were unavailable for ANCSA selection. The
inequity created by reducing lands Cape Fox could select has
not been rectified.
H.R. 1899 is a sensible solution. It provides for
adjustments to Cape Fox's land selections and for a land
exchange that is mutually beneficial to the village corporation
and to the U.S. Forest Service. Lands that Cape Fox acquires
under the exchange are adjacent to the Kensington gold mine
project, which could lead to major economic opportunities for
the Native shareholders, as mining is a critical ingredient in
the future economy of southeast Alaska. The Forest Service
would acquire lands rich in wildlife habitat, recreation and
watershed values. In addition, the exchange will rationalize
complex land ownership patterns in Southeast Alaska.
The bill also provides for an exchange between Sealaska and
the Forest Service to resolve long-standing ``split estate''
problems in which Sealaska owns the subsurface estate of
certain lands owned by the U.S. in the Tongass National Forest.
Split estates can be difficult and inefficient to manage.
A summary of the exchanges authorized under this bill are
as follows:
Cape Fox not required to select and receive 160
acres of certain ANCSA lands.
Cape Fox receives surface (Sealaska receives the
subsurface) to 99 acres of land outside Cape Fox's ANCSA
selection area.
Cape Fox receives surface and subsurface estate to
2,664 acres of Tongass National Forest at Jualin Mine site near
Berners Bay (north of Juneau).
Sealaska receives surface and subsurface of land
within the Tongass National Forest that is equal in value to
lands exchanged to the United States. Sealaska selects its
lands from 9,329-acre pool of Tongass lands at Kensington Mine,
near Berners Bay.
The United States receives lands and interests in
land of equal value from within:
(1) 2,900-acre pool and public trail easement offered
by Cape Fox (surface) and Sealaska (subsurface) on
Revilla Island;
(2) 2,506 acres of Sealaska split estate subsurface
on Prince of Wales Island; and
(3) 2,698 acres of Sealaska subsurface estate
remaining to be conveyed under Haida Land Exchange Acts
and Sealaska/Forest Service Split Estate Exchange
Agreement of 1991.
Cape Fox would choose lands to be conveyed to U.S.
from the 2,900-acre pool in (1) above.
Lands received by the United States would be added
to the Tongass National Forest and managed according to the
Tongass Land Management Plan.
The land exchanges under H.R. 1899 are required to be equal
in value.
Similar legislation passed the Senate in the 107th
Congress, but no further action was pursued in the House.
Attempts to address the inequities and land ownership problems
concerning Cape Fox have been made in the past but without
resolution.
A hearing that was scheduled on H.R. 1899 on Thursday,
September 18, 2003, was cancelled because of Hurricane Isabel.
A hearing on the virtually identical Senate version of the
measure, S. 1353 (Murkowski), was held in Anchorage, Alaska, on
August 6, 2003. In that hearing, testimony on the measure was
received from Under Secretary of Agriculture Mark Rey, Bruce
Borup, the Chief Executive Officer of Cape Fox Corporation,
Steve Borell of the Alaska Miners Association, Rosa Miller,
Tribal Leader of Auk Kwaan Clan, in addition to other
organizations and individuals.
COMMITTEE ACTION
H.R. 1899 was introduced on April 30, 2003, by Congressman
Don Young (R-AK). The bill was referred to the Committee on
Resources. On October 1, 2003, the Full Resources Committee met
to consider the bill. No amendments were offered and the bill
was ordered favorably reported to the House of Representatives
by voice vote.
COMMITTEE OVERSIGHT FINDINGS AND RECOMMENDATIONS
Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of
rule XIII of the Rules of the House of Representatives, the
Committee on Resources' oversight findings and recommendations
are reflected in the body of this report.
CONSTITUTIONAL AUTHORITY STATEMENT
Article I, section 8 and Article IV, section 3 of the
Constitution of the United States grant Congress the authority
to enact this bill.
COMPLIANCE WITH HOUSE RULE XIII
1. Cost of Legislation. Clause 3(d)(2) of rule XIII of the
Rules of the House of Representatives requires an estimate and
a comparison by the Committee of the costs which would be
incurred in carrying out this bill. However, clause 3(d)(3)(B)
of that rule provides that this requirement does not apply when
the Committee has included in its report a timely submitted
cost estimate of the bill prepared by the Director of the
Congressional Budget Office under section 402 of the
Congressional Budget Act of 1974.
2. Congressional Budget Act. As required by clause 3(c)(2)
of rule XIII of the Rules of the House of Representatives and
section 308(a) of the Congressional Budget Act of 1974, this
bill does not contain any new budget authority, spending
authority, credit authority, or an increase or decrease in tax
expenditures. According to the Congressional Budget Office,
enactment of this bill could reduce offsetting receipts by up
to $10,000 a year.
3. General Performance Goals and Objectives. This bill does
not authorize funding and therefore, clause 3(c)(4) of rule
XIII of the Rules of the House of Representatives does not
apply.
4. Congressional Budget Office Cost Estimate. Under clause
3(c)(3) of rule XIII of the Rules of the House of
Representatives and section 403 of the Congressional Budget Act
of 1974, the Committee has received the following cost estimate
for this bill from the Director of the Congressional Budget
Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, October 7, 2003.
Hon. Richard W. Pombo,
Chairman, Committee on Resources,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 1899, the Cape Fox
Land Entitlement Adjustment Act of 2003.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contacts are Megan
Carroll and Deborah Reis.
Sincerely,
Elizabeth M. Robinson
(For Douglas Holtz-Eakin, Director).
Enclosure.
H.R. 1899--Cape Fox Land Entitlement Adjustment Act of 2003
CBO estimates that enacting H.R. 1899 would have no
significant impact on the federal budget. The bill could affect
direct spending (including offsetting receipts), but we
estimate that any such impacts would not exceed $10,000 a year.
H.R. 1899 would direct the Secretary of the Interior to
convey to Cape Fox Corporation, an Alaska Native village
corporation, the surface estate to 99 acres of federal lands
located within the Tongass National Forest in Alaska. The bill
also would direct the Secretary to convey to Sealaska
Corporation, an Alaska Native regional corporation, the
subsurface estate to those lands. According to the Forest
Service, those lands are not expected to generate significant
receipts over the next 10 years; hence, CBO estimates that
conveying them would have a negligible impact on the federal
budget.
In addition, H.R. 1899 would authorize the Secretary of
Agriculture to convey to Cape Fox Corporation the surface and
subsurface estates to about 2,664 acres of national forest
lands in exchange for other lands currently owned by that
corporation. Following that exchange, the Secretary would be
authorized to convey to Sealaska Corporation the surface and
subsurface estates to federal lands to be identified by that
corporation in exchange for its interests in the subsurface
estate of roughly 5,204 acres of other lands. Under the bill,
any lands or interests exchanged must be equal in value.
H.R. 1899 does not specify all of the lands to be exchanged
under the bill but does identify areas from which such lands
would be selected. Based on information provided by the Forest
Service about the level of timber harvesting expected to occur
on lands that could be affected by the bill, however, CBO
estimates that any forgone offsetting receipts from such
harvests probably would not exceed $10,000 a year.
The bill contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would impose no costs on State, local, or tribal governments.
The conveyances and exchanges authorized by the bill would be
voluntary on the part of Cape For Corporation and Sealaska
Corporation.
The CBO staff contacts for this estimate are Megan Carroll
and Deborah Reis. This estimate was approved by Peter H.
Fontaine, Deputy Assistant Director for Budget Analysis.
COMPLIANCE WITH PUBLIC LAW 104-4
This bill contains no unfunded mandates.
PREEMPTION OF STATE, LOCAL OR TRIBAL LAW
This bill is not intended to preempt any State, local or
tribal law.
CHANGES IN EXISTING LAW
If enacted, this bill would make no changes in existing
law.
DISSENTING VIEWS
We strongly oppose H.R. 1899.
Under the guise of a land ``exchange,'' this special
interest legislation would convey approximately 12,000 acres of
valuable public lands from the Tongass National Forest to the
Cape Fox Corporation and Sealaska Corporation. The national
forest lands which would be transferred to private ownership--
with the result that they could be developed or sold--are
adjacent to the Kensington gold mine project and border the
Berners Bay conservation area which was permanently protected
by Congress in 1990. The corporate properties to be acquired by
the Forest Service in exchange under the bill include about
3,000 acres of remote and isolated surface parcels, much of
which has been roaded and clear-cut logged, along with about
9,000 acres of subsurface rights of dubious value.
Simply put, in this bill private corporations get the land
gold while the Tongass National Forest--and the public--get the
land shaft.
The Tongass lands which would be given away under this bill
have multiple resource values for the American people who own
those lands. The undeveloped forested lands in Berners Bay
include coastline and old-growth timber. The area is very
scenic, is heavily used for recreation, and has high fish and
wildlife values. And the economic value of those lands, if the
Coeur mining corporation redevelops the old Kensington gold
mine as planned, may be substantial. In a July 28, 2003 press
release Coeur noted:
The Kensington Gold Project is located approximately
45 miles north of Juneau, Alaska and contains an
estimated 1.8 million ounces of proven and probable
gold reserves and 1.4 million ounces of resources.
Capital costs necessary to place Kensington into
production are currently estimated to be $150 million,
while annual gold production is projected to average
175,000 ounces annually. * * * Coeur believes that
significant exploration potential exists at Kensington
that could materially increase the project's total
resources.
A significant number of Alaskans oppose this exchange
because they believe that the values of undeveloped national
forest lands in Berners Bay exceed any potential economic
return that may be derived from privatization and development
to facilitate the Kensington gold mine project. See, e.g.,
``Land Swap Plans Spark Outcry,'' Anchorage Daily News,
September 24, 2003. Opponents include the Auk Kwaan tribe,
which has cultural and historic ties to the lands.
Notwithstanding the opposition to the bill, the Majority failed
to hold a field hearing in Alaska or bother to inspect the
lands at issue. Moreover, a perfunctory public hearing
scheduled in Washington, D.C. prior to the markup was
cancelled.
Compounding the insult of the Majority's failure to provide
due public hearing process, is the substantive injury of
stampeding a fundamentally flawed bill through the committee.
Among the many concerns regarding H.R. 1899 are the following:
The lands specified for exchange in the bill were
not derived via negotiation with the Forest Service; instead,
the two corporations identified the Tongass National Forest
lands they want surrounding the Kensington gold mine project
and self-selected their corporation lands and subsurface rights
to be transferred to the Forest Service in exchange.
The exchange has not been subject to any Forest
Service hearings or public process as would be required under
the National Environmental Policy Act (NEPA) for an
administrative exchange; by a congressional mandate to execute
the exchange, the bill provides for a defacto exemption from
NEPA.
No land appraisals have been done on the lands to
be exchanged; although the lands to be exchanged are to be
``equal value'' under the bill, there is no requirement for
formal land appraisals following the standard process of
applying the Uniform Appraisal Standards for Federal Land
Acquisitions.
While the direct benefits of the exchange to the
corporations are clear--private ownership of 12,000 acres
surrounding the Kensington gold mine project--there are no
comparable benefits to the national forest to offset the loss
of valuable lands in the scenic Berners Bay area; the 3,000
acres of Cape Fox corporation lands which would be thrust upon
the Forest Service are in remote and non-contiguous parcels,
and any commercial timber has been clear-cut logged. The
Sealaska Corporation's subsurface would add little of
discernable value to the national forest, yet they would
receive by exchange about 9,000 fee simple (surface and
subsurface) acres with high development potential in the
Berners Bay area near Juneau.
In sum, H.R. 1899 violates every tenet in the rulebook for
what constitutes a land exchange that is in the public
interest. It would mandate a one-sided transaction which is a
transparent give-away of valuable public lands to private
corporations. We urge its rejection by the House.
Nick Rahall.
George Miller.
Ed Markey.
Frank Pallone, Jr.
Ron Kind.
Jay Inslee.
Grace F. Napolitano.
Mark Udall.
Raul M. Grijalva.