In the last week of August, the Biden administration finalized protection of 28 million acres of federal land and water in Alaska that is critical for birds, fish, caribou, and the communities that rely on them. That’s an area the size of Pennsylvania that will now be protected from mining and other potentially destructive resource extraction, but it did not make national news, and I’ll bet you haven’t heard about it. Here’s the skinny:
Back in 1970s, after oil was discovered in Prudhoe Bay, Congress passed the Alaska Native Claims Settlement Act which contained a specific provision — section 17(d)(1) — directing the Secretary of the Interior to “review the public lands in Alaska and determine whether any portion of these lands should be withdrawn under authority provided for in existing law to [e]nsure that the public interest in these lands is properly protected.” Pursuant to this directive, the Secretary initially withdrew about 158 million acres of public land from exploitation for a variety of reasons. Over the years, many of these withdrawals were lifted, but millions of acres remained withdrawn. In 2004, Congress again addressed the issue and directed the Secretary to prepare a report assessing whether land that remained withdrawn pursuant to 17(d)(1) should be made available for entry. The result was a recommendation by Interior to lift most of the remaining 17(d)(1) withdrawals.
In the waning days of the Trump administration, former Secretary of the Interior Bernhardt acted on these recommendations in dramatic fashion. He signed five public land orders purporting to lift 17(d)(1) withdrawals on 28 million acres of BLM-managed land throughout the state. Upon taking office, the Biden administration immediately suspended the public land orders. The Secretary cited concerns about the PLOs’ lawfulness and undertook a review. That review lasted most of the administration’s term and produced a new environmental impact statement assessing the effects of lifting 17(d)(1) withdrawals. This process culminated in the decision to rescind the Bernhard PLOs, citing the Secretary’s inherent authority to revisit decisions based on identified legal errors. She concluded that the prior administration’s decision failed to assess fully how lifting the withdrawals would harm traditional subsistence harvesting practices of Alaska Native communities. Based on the new EIS, the Secretary concluded that leaving the withdrawals in place is necessary to protect the public interest in those lands. Specifically, the Secretary found that between 74 and 139 rural communities would be negatively affected if the withdrawals were lifted, and these “adverse effects to subsistence uses and related effects to social systems and communities with environmental justice concerns would be unacceptable.”
For now, these vital lands thus remain protected. The story may not be over just yet, however. While Tribal governments and environmental groups applauded Secretary Haaland’s decision, the State of Alaska and its Senate delegation criticized the move. If past is prologue, the State of Alaska and others can be expected to bring legal challenges to the Secretary’s action. Such challenges might raise claims about the extent of the Secretary’s authority to revisit past decisions, the scope of her authority under 17(d)(1), the Alaska National Interest Lands Act’s limits on future withdrawals, and potentially claims—like those brought by the State of Utah last month—challenging Interior’s very authority to manage unappropriated lands. Stay tuned!
