Alaska v. Haaland

• Decision Date: 14 March 2022
• Docket Number: 3:21-cv-0158-HRH
• Court: U.S. District Court — District of Alaska
• Parties: STATE OF ALASKA, Plaintiff, v. DEB HAALAND, in her capacity as Secretary of the Department of Interior, et al., Defendants.

STATE OF ALASKA, Plaintiff,
v.
DEB HAALAND, in her capacity as Secretary of the Department of Interior, et al., Defendants.

No. 3:21-cv-0158-HRH

United States District Court, D. Alaska

March 14, 2022

ORDER MOTION TO DISMISS

H. Russel Holland United States District Judge

Defendants move to dismiss plaintiff's complaint.^[1] This motion is opposed.^[2] Oral argument was not requested and is not deemed necessary.

Background

Plaintiff is the State of Alaska. Defendants are Deb Haaland, in her capacity as Secretary of the Department of the Interior; Laura Daniel-Davis, in her capacity as Principal Deputy Assistant Secretary, Land and Minerals Management, Bureau of Land Management;

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Thomas Heinlein, in his capacity as Acting Alaska State Director, Bureau of Land Management; and the Bureau of Land Management.

The 1958 Alaska Statehood Act authorized the State to select substantial amounts of unreserved and unappropriated federal land within Alaska, including 103, 350, 000 acres of land from the public domain. Pub. L. No. 85-508, 72 Stat. 339, § 6(a) and (b). The Statehood Act provided that the State had 25 years in which to make its land selections.

In Section 4 of the Statehood Act, the State disclaimed any right or title to lands to which Alaska Natives asserted aboriginal rights, but the Act otherwise deferred addressing Alaska Native land claims. Id. at § 4. As the State selection process proceeded, Alaska Native communities began to raise concerns about conflicts involving land claims. As a result, in 1966, the Secretary of Interior imposed a “land freeze, ” suspending issuance of patents under the Statehood Act to protect Native land claims. And, on January 17, 1969, the Secretary signed Public Land Order (PLO) 4582, which withdrew all public lands in Alaska from entry under the public land laws and the mining and mineral leasing laws until Native land claims could be resolved. 34 Fed.Reg. 1025 (January 23, 1969).

On December 18, 1971, Congress passed the Alaska Native Claims Settlement Act (ANCSA), which, among other things, extinguished all aboriginal land claims and gave Alaska Native corporations established under ANCSA the right to select 44 million acres of public land in Alaska. 43 U.S.C. §§ 1601-1629h. Section 17(d)(1) of ANCSA revoked PLO 4582 and withdrew all unreserved public lands in Alaska from all forms of appropriation for

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a period of 90 days. 43 U.S.C. § 1616(d)(1). During the 90-day period, the Secretary was to

review the public lands in Alaska and determine whether any portion of these lands should be withdrawn under authority provided for in existing law to insure that the public interest in these lands is properly protected. Any further withdrawal shall require an affirmative act by the Secretary under his existing authority, and the Secretary is authorized to classify or reclassify any lands so withdrawn and to open such lands to appropriation under the public land laws in accord with his classifications

Id. Pursuant to Section 17(d)(1) of ANCSA, the Secretary issued a series of PLOs from 1972 to 1973 that withdrew more than 158 million acres of land in Alaska from appropriation under the public land laws. These PLOs resulted in a portion of public lands in Alaska being removed from availability for selection by the State.

In 1980, Congress passed the Alaska National Interest Lands Conservation Act. (ANILCA). Section 906 of ANILCA extended the State's selection period by an additional ten years to January 3, 1994; required the State to prioritize its remaining selections; opened some withdrawals to State selections; and allowed the State to “top file” on lands that were currently unavailable for selection due to withdrawals. A “top filing” is a “future selection” that falls into place when the land becomes available for selection through the lifting of a withdrawal or the rejection of a competing selection. See 43 U.S.C. § 1635(e).

In 2004, Congress enacted the Alaska Land Transfer Acceleration Act (ALTAA) “[t]o facilitate the transfer of land in the State of Alaska[.]” Pub. L. No. 108-452, 118 Stat. 3575 (2004). Section 207 of ALTAA gave the Secretary 18 months in which to

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(1) review the withdrawals made pursuant to section 17(d)(1) of the Alaska Native Claims Settlement Act (43 U.S.C. 1616(d)(1)) to determine if any portion of the lands withdrawn pursuant to that provision can be opened to appropriation under the public land laws or if their withdrawal is still needed to protect the public interest in those lands;

(2) provide an opportunity for public notice and comment, including recommendations with regard to lands to be reviewed under paragraph (1); and

(3) submit to the Committee on Energy and Natural Resources of the Senate and the Committee on Resources of the House of Representatives a report that identifies any portion of the lands so withdrawn that can be opened to appropriation under the public land laws consistent with the protection of the public interest in these lands.

In June 2006, the BLM submitted the required report to Congress. In the report, the BLM summarized that

there are more than 158, 958, 000 acres of d-1 withdrawals in Alaska. Many of these d-1 withdrawals have outlived their original purpose. It may be appropriate to lift many of [the] d-1 withdrawals and the most effective and preferred means in managing this process is through BLM's land use planning process.^[3]

The BLM can only recommend that the Secretary “make, modify, extend, or revoke withdrawals. . . .” 43 U.S.C. § 1714(a). Thus, in the 2006 report, the BLM recommended that the Section 17(d)(1) withdrawals for approximately 152, 181, 400 acres “could be lifted

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consistent with the protection of the public's interest.”^[4] In contrast, the BLM found that only approximately 6.7 million acres of the Section 17(d)(1) withdrawals continued to be warranted. The BLM explained that “[l]ifting a d-1 withdrawal will primarily open the lands to leaseable and locatable minerals” but that “in many instances lifting the withdrawal will have no immediate effect.”^[5] “Because remaining segregations overlap the d-1 withdrawals, lifting these withdrawals would provide immediate entry on only 21, 459, 700 acres or 14% of the d-1s recommended to be lifted.”^[6] Nonetheless, the BLM recommended that many of the Section 17(d)(1) withdrawals be lifted, in part because “[t]he d-1 withdrawals are an unnecessary encumbrance on the public land records complicating interpretation of the title records by the public.”^[7]

Following the 2006 report, the BLM issued a number of revisions to resource management plans^[8] for several planning areas in Alaska, which recommended revoking all,

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or a majority of, the Section 17(d)(1) withdrawals in the area. These revisions were issued for the following planning areas: 1) East Alaska (2007), 2) Bay (2008), 3) Ring of Fire (2008), 4) Kobuk-Seward Peninsula (2008), 5) Eastern Interior (2017), and 6) Bering Sea-Western Interior (BSWI) (2021).

In 2020 and early 2021, the BLM issued a number of Determinations of NEPA Adequacy (DNAs), ^[9] in which it concluded that the NEPA analysis conducted for the RMPs included adequate analysis to support withdrawal revocation decisions. The BLM also found that no additional consultation with the U.S. Fish and Wildlife Service was required under Section 7 of the ESA. Thus, the BLM recommended to then-Secretary Bernhardt that he revoke the majority of the Section 17(d)(1) withdrawals in the five planning areas.

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Based on the BLM's recommendation, in January 2021, Secretary Bernhardt signed PLOs 7899, 7900, 7901, 7902, and 7903.^[10] These five PLOs partially revoked Section 17(d)(1) withdrawals issued in 1972 and 1973 pursuant to Executive Order 10355 and Section 17(d)(1) of ANCSA. The five PLOs revoked withdrawals on nearly 28 million acres of public lands in Alaska.

PLO 7899, which was for the Kobuk-Seward Peninsula planning area, was published in the Federal Register on January 19, 2021.^[11] PLO 7899 revoked Section 17(d)(1) withdrawals for “approximately 9, 727, 730.01 acres of public lands. . . .”^[12]

“Lands included in a withdrawal that is revoked . . . do not automatically become open, but are opened through publication in the Federal Register of an opening order.” 43 C.F.R. § 2091.6. “An opening order may be incorporated in a Public Land Order that revokes or terminates a withdrawal. . . .” Id. PLO 7899 incorporated an opening order, which provided that on February 18, 2021, the lands at issue

shall be open to all forms of appropriation under the general public land laws, including location and entry under the mining laws, leasing under the Mineral Leasing Act of February 25, 1920, as amended, subject to valid existing rights, the provisions

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of existing withdrawals, other segregations of record, and the requirements of applicable law.^[13]

PLO 7900, for the Ring of Fire planning area, revoked Section 17(d)(1) withdrawals for “approximately 992, 194.7 acres of public lands. . . .”^[14] PLO 7900 incorporated an opening order that was to take effect “30 days after date of publication in the Federal Register. . . .”^[15] PLO 7900 has yet to be published in the Federal Register.

PLO 7901, for the Bay planning area, revoked Section 17(d)(1) withdrawals for “approximately 1, 267, 401 acres of public lands. . . .”^[16] PLO 7901 incorporated an opening order that was to take effect “30 days after date of publication in the Federal Register. . . .”^[17]PLO 7901 has yet to be published in the Federal Register.

PLO 7902, for the BSWI planning area, revoked Section 17(d)(1) withdrawals for “approximately 13, 396, 841 acres of public lands. . . .”^[18] PLO 7902 incorporated an opening order that was to take effect “30 days after date of publication in the Federal Register. . . .”^[19]PLO 7902 has yet to be...