82 FR 6634 - 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

DEPARTMENT OF THE INTERIOR
Bureau of Land Management

Federal Register Volume 82, Issue 12 (January 19, 2017)

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.

[Federal Register Volume 82, Number 12 (Thursday, January 19, 2017)]
[Notices]
[Pages 6634-6636]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-01199]


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DEPARTMENT OF THE INTERIOR

Bureau of Land Management

[17X.LLAKF02000. L16100000. DR0000. LXSS094L0000]


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.

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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

[[Page 6635]]

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 Sec.  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 (Sec.  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 in use . . .'' 
(FLPMA Sec.  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

[[Page 6636]]

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.
[FR Doc. 2017-01199 Filed 1-18-17; 8:45 am]
 BILLING CODE 4310-JA-P