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Alaska Native Claim Settlement Act (ANCSA) Land Conveyances

History:

  • The Alaska Native Claims Settlement Act (ANCSA) became law in 1971.
  • Ultimately, ANCSA will convey more than 45 million acres of land to village and regional corporations.
  • To date, over 36 million acres have been conveyed -- both Interim Conveyed (unsurveyed) and Patented (surveyed).
  • Section 17(b) of ANCSA provided for the reservation of public access easements which are now commonly referred to as 17(b) easements.
  • Initially, a joint Federal/State Land Use Planning Commission was established to identify necessary public access easements throughout the state. The LUPC disbanded in the early 1980s and the Alaska Department of Natural Resources (ADNR) was assigned the lead role in identifying and defending these easements; (ADF&G) was allowed to comment through ADNR.
  • In FY 92, ADNR transferred this role to to other interested state agencies and/or ADNR divisions. In general, ADNR continued to address access to state land but deferred to ADF&G or federal agencies to protect access to/through federal lands (parks, refuges, national forests).
  • Starting in July 1991, via funding through ADF&G Sport Fish Division, Habitat and Restoration Division staff began coordinating the department's position on access needs for land conveyances within southcentral and southwest Alaska.
  • In FY 97, Habitat and Restoration division staff were funded to review ANCSA land conveyances statewide.
  • ADF&G staff continues to review ANCSA conveyances statewide.

Process:

  • Land Selection - allowed for overselections (same as the state) that could be refined at a later date.
  • Request for Easement Nominations - this is where the original evaluation and request for easements is made by all agencies and the public - reference is made to the existence of navigable and major waterways (those that allow for the reservation of site easements).
  • Notice of Proposed Easements - this is the Bureau of Land Management's (BLM) consolidation of the easements necessary to be reserved based on prior recommendations.
  • Final Easement Recommendations.
  • Draft Interim Conveyance.
  • Interim Conveyance.
  • Conformance of Easements (for those conveyances that occurred prior to 1979).
  • Patent Easement Memorandum.
  • Patent.

Easements:

  • The type of 17(b) easements that can be reserved under current regulations include: trails (25-foot wide, 50-foot wide, and 60-foot wide); railroads; one-acre site easements for aircraft landings, vehicle parking, temporary camping, loading or unloading.
  • Unless they provide the only available option, topographically, for accessing an isolated piece of public land, easements can only be reserved where there is a present existing use (which can be documented as occurring on or before December, 1976).
  • Easements cannot be reserved for recreational use.
  • Because of the state's size, a large percentage of the trails reserved are currently undeveloped and unmarked.

History of Allowable Easements:

  • Between 1971 and 1976, 25-foot wide continuous shoreline and streamside easements were reserved in almost all conveyances.
  • In 1976, litigation was initiated by six regional corporations challenging continuous easements and several other types of easements, as well.
  • BLM initiated a two-part conformance process by 1978.
  • During the first phase of the conformance all easements found to be invalid were released, with the understanding that any necessary easements would be donated by the corporation during the second phase, just prior to patent.
  • During the second phase the released continuous easements were to be replaced by periodic site easements, or whatever brought the easements up to the current standard. Many of these conveyances are just now (10-15 years later) being adjudicated and brought into conformance. Unfortunately, a number of corporations have since conveyed the land to third parties where the site would logically have been placed, or in some cases generally opposed to donating replacement easements (e.g. site easements at the heads of trails for a change in mode of transportation) that would bring the easement structure up to today's standard.
  • Without these site easements some corporations are challenging the need for the trail easement as there is no point legally reserved where the public can transition from one form of transportation to another (e.g. leave their car and get into a boat or walk on a trail).

Termination or Release of Easements:

  • • Because of the process, lands are frequently conveyed piecemeal, and portions of easements have been lost during the conveyance process. The result is that the easement becomes discontinuous and there is no mechanism to require a donation of the missing piece. The easement is then generally terminated because it can no longer accesses public land.
  • According to BLM's regulations, starting at the end of the year 2001, corporations can request the termination of easements that have not been used for the purpose for which they were reserved. To date, few of the easements that have been reserved are marked on the ground and no one has been assigned or has any method to record whether a particular easement is being used.
  • The state has inquired how it can expedite the marking of easements. BLM has indicated that they are not marking easements unless invited to do so by the affected corporation.
  • Several corporations have stated that their land is not subject to federally held public easements and are adamantly opposed to anyone marking easements on their property.
  • Some more recent justification for terminating easements, particularly within USFWS refuge lands, includes habitat degradation generally caused by All Terrain Vehicles (ATV's).

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