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Another Controversial Alaskan Road – Federal Government and Alaska Collide

By Taylor Thompson

Three years ago, the Department of Interior (“DOI”) and rural Alaskans clashed on a proposed medical access road. Is the Ambler Access road going to be another?

As many Alaskans remember, on December 2013, the DOI rejected a proposal to build a medical access road from King Cove to Cold Bay. Politicians and members of the affected communities have lauded the road as vital and life saving, as the amount of medevac’s from Cold Bay have only increased in the past three years. Despite the claims, the DOI has yet to overturn its decision. Even the Federal Court has upheld the DOI’s decision, hinting that the only way to get a road built in the Izembek National Refuge is through Congress.

In an effort to encourage development of natural resources in Alaska, another road is being proposed through a rural part of the State. The Ambler Mining District Access Project is a 200-mile long road that begins on the Dalton Highway and ends at the Ambler Mining District in Norscreen-shot-2016-10-11-at-12-31-22-pmthwest Alaska. The Alaska Industrial Development and Export Authority (“AID
EA”) has proposed that an Environmental Impact Statement (“EIS”) be done and encourages the development of the one-lane industry access road.

The road has received a fair amount of criticism and recently, a study revealed that the road could have a negative impact on the availability of subsistence food sources of ten villages near the proposed road site.

A study conducted by the Arctic Institute of North American at University of Calgary, Alberta, paid for by the National Park Service, calculated the impact of the road on subsistence foods. The study concluded that the road would cause village residents to lose subsistence foods from $6,900 to $10,500 per household. This loss is about a third of the median income of village residents.

The study did mention that there would be benefits to the construction of the road, namely, that the price of annual heating and electrical costs would decrease annually by $2,755 to $3,737 per household.

AIDEA has submitted right-of-way permits pursuant to the Alaska National Interest Lands Conservation Act. As of now, the federal agencies are working on a scoping process as part of the environmental review.

With any major project in Alaska, a necessary balance must be struck between the commercial necessity of development, while maintaining and preserving natural resources. This balance seems to be more and more important with Alaska’s major economic issues. There is certainly a policy reason to allow a road, but an equally important policy reason to protect and preserve the access and availability of subsistence foods.

It will be interesting to see how the road develops through the environmental review process, and whether a corollary can be drawn between the King Cove road and this one.

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Bumble Bee Proposed for Endangered Species Act Protections

By Emily Slike

In mid-September, the Fish and Wildlife Service issued a proposal to the Endangered Species Act for the rusty patched bumble bee. Since the 1990s the species’ population has plunged by more than 90 percent. Factors contributing to the decline include intensive farming, disease, pesticides, climate change and habitat loss. The bumble bee is further susceptible to extinction because of their annual population sizes, life cycle and genetic makeup. There are currently 47 kinds of native bumble bees throughout the United States and Canada, and more than a quarter face the threat of extinction.

rusty-bumble-beeUnlike their domestic counterparts, native bumble bees are essential to the pollination process for wildflowers and roughly one third of economically important United States crops. Putting this into economic terms, bees contribute an annual $3.5 billion to farms.

Bumble bees perform an essential behavior that benefits crops known as “buzz pollination.” This behavior is where the bee grabs the flower by her jaws and vibrates her wing muscles which removes the flower’s pollen. Many plants are benefitted from buzz pollination. Further, because bumble bees have the ability to fly in cooler temperatures and lower light levels, they are great for pollinating crops such as tomatoes, peppers and cranberries. Even for self-pollinating crops, bigger fruits are grown when bees pollinate them. Without the amount of pollination that currently exists, the food system and ecosystems could flounder.

The debate over proposed protections will likely center over neonicotinoid pesticides. These pesticides are regularly used for agricultural purposes, plants and trees in gardens and parks, and have contributed to the bumble bees’ population decline. Other actions being utilized to protect the bumble bee by the Fish and Wildlife Service include working with other groups by locating, protecting and restoring existing bee habitats.

Currently, no other bumble bee species have been listed, but several Hawaiian bee species are under consideration for the endangered designation.

Public comments will be accepted through November 21, 2016.




Bumble bee is proposed for U.S. endangered species status

Bumble Bee Conservation

Photo Credit: xerces.org Johanna James-Heins

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The Human-Powered Travel in Wilderness Areas Proposed Senate Bill

screen-shot-2016-09-19-at-9-14-20-pmBy Arie Mielkus

Utah Senators Mike Lee and Orrin G. Hatch recently introduced Senate Bill 3205 that would allow biking in wilderness areas. The Human-Powered Travel in Wilderness Areas Act was met with a mix of concern and support.

The Wilderness Act of 1964 banned mechanized travel in wilderness areas. The purpose of the Act was to ensure the growing population of the US did not leave its citizens’ without preserved areas in their natural condition. Additionally, the Act addressed concerns about the increase of mechanized forms of travel, and the need to set aside lands for solitude. To address these concerns, and others, mechanized travel was banned on lands designated as Wilderness.[1]

The Bill would require the Secretary of the Interior and Secretary of Agriculture to authorize local officials to decide if non-motorized forms of recreation should be permitted in their jurisdictions. A decision is required within 2 years of the Bill’s enactment; failure to make a decision results in the Wilderness area being opened to non-motorized recreation. It remains unclear what factors would be considered in this determination, but the Bill states the decision shall “accommodate all forms of non-motorized transportation, to the maximum extent practicable.” The Bill also includes a section on maintenance, proposing motorized trail access to amend the current Wilderness Act, by allowing “small-scale motorized equipment” (such as chainsaws and wheelbarrows) to maintain trails. “Small-scale motorized equipment” is not defined by the Bill.[2]

There is concern that the Bill supports a public land seizure. Utah and other Western States have been the site of efforts to transfer federal public lands to state control. Most recently in 2014 a Utah State Senate measure became effective, requiring the US to “extinguish title” to public lands and transfer title of the lands to the State of Utah.[3] A spokesperson for Senator Mike Lee says that this is just a “cuckoo conspiracy theory,” emphasizing the Bill’s goals “to open up more public lands for enjoyment by Americans.”[4]

Sustainable Trails Coalition (STC), a non-profit that supports human powered travel in wilderness areas to ensure trails can be enjoyed by all, supports the Bill. The group’s website states the bill is narrowly written, with no hidden agenda. Additionally, STC claims local land managers are empowered with making the determination if biking on trails is allowed, based on “current usages, the sources available for trail maintenance, and the possibility of repairing a neglected trail.”[5]

The Bill was referred to committee on July 13, 2016. Govtrack.us, a website that tracks bills, gives Senate Bill 3205 a fourteen percent chance of making it out of committee and ultimately being passed. The site lists several factors for this prognosis including: (1) The Bill’s sponsor, Mike Lee, is a member of the Senate Energy and Natural Resources committee to which it was referred; (2) Sponsor Mike Lee is a member of Republican party, the majority party in the Senate; and (3) Co-Sponsor Orrin Hatch is high within the leadership of the Republican party.[6]

[1] The Wilderness Act of 1964, 16 U.S.C §1133 (2014).

[2] S. 3205, 114th Cong. 2016.

[3] H.B 148, 2012 Gen. Sess. (Utah 212).

[4] New York Times, Bill Opening Wilderness Areas to Bikes Also Opens Debate, http://www.nytimes.com/2016/08/20/us/bill-opening-wilderness-areas-to-bikes-also-opens-debate.html?_r=0 (last visited Sept. 13, 2016).

[5] Sustainable Trails Coalition, FAQ/Resources, http://www.sustainabletrailscoalition.org/resources/#faq (last visited Sept. 13, 2016).

[6] Govtrack.us, S. 3205: Human Powered Travel in Wilderness Areas Act, https://www.govtrack.us/congress/bills/114/s3205 (last visited Sept. 13, 2016),

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Modern Day Warriors

By Lillian Alvernaz

There are estimates of up to 4,000 Indians gathered in Cannonball, North Dakota to protest the construction of a $3.8-billion-dollar pipeline, “Dakota Access” or “DAPL.” Though, the hundreds of Indian tribes from over twenty states supporting the Standing Rock Sioux Tribe in their complaint against the United States Army Corps of Engineers is about much more than this project alone. With no intent on leaving, tribes have peacefully occupied the great plains of North Dakota since April.

Dakota Access is a proposed pipeline that would run from North Dakota, through South Dakota and Iowa, and end in Illinois. This 1,168-mile-long project would cross numerous water sources, such as the Missouri River and Lake Oahe. The Standing Rock Sioux Tribe’s suit against the U.S. Army Corps of Engineers asserted that the Corps failed to consult with the tribe under Section 106 of the National Historic Preservation Act (“NHPA”) before beginning construction of DAPL. Standing Rock further argued that the land that Dakota Access is being built on is sacred and culturally significant to area tribes and threatens their drinking water.

The United States District Court for the District of Columbia denied the tribe’s motion for a preliminary injunction, and found that the Corps complied with the NHPA and the tribe failed to show that preventing Dakota Access would protect the tribe from injury.

While Dakota Access’s construction will continue, as will the spirit of the tribes’ protest. The Department of Justice and Department of Interior acknowledged several issues raised by the tribal protest regarding Dakota Access and other related projects. Through this acknowledgment, the DOJ and DOI have agreed to cease construction around Lake Oahe until the Corps can reconsider their prior National Environmental Protection Act assessment of Lake Oahe.

Beyond Dakota Access, DOJ and DOI recognized the need for improving tribal consultation efforts. DOJ and DOI would like to move forward by asking tribes to formally consult, government-to-government, the statutory framework already in place and how the federal government would be able to improve the process to fully respect and honor tribal voice, tribal lands, treaty rights, and tribal resources. Further DOJ and DOI would like to consider any new proposed legislation that would improve the current statutory framework to ensure tribes be heard.





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Welcome to New Staff Members

The Public Land & Resources Law Review editors are excited to welcome the new staff members for the 2016-17 academic year:

Ben Almy

Lillian Alvernaz

Jonah Brown

Caitlin Buzzas

Sarah Danno

Jody Lowenstein

Arie Mielkus

Jake Schwaller

Kirsa Shelkey

Emily Slike

We had an incredible selection of talented students to choose from last spring, and we are confident that each staff member will play a significant role in shaping our annual publication, lectures, and future conference. For more information concerning our new staff, visit this link: http://scholarship.law.umt.edu/plrlr/editorialboard.html.

This year, in addition to our annual publication, we will publish a special publication in honor of Professor Emeritus Ray Cross. Professor Cross’ guidance of the Public Land & Resources Law Review was instrumental to its development as a leading publication focused on public lands, natural resource law, and federal Indian law. We will also help organize the 2016 Jestrab Lecture on Water, which offers a unique opportunity for students and community to learn from a nationally recognized expert in the field of water law.

– Kathryn Ore


Public Land & Resources Law Review

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Bipartisan Support Pushes Energy Bill Through Senate

By Nicholas Vandenbos


With a vote of 85-12, the Senate on Wednesday passed Senate Bill 2012, the Energy Policy Modernization Act of 2016. The bill now goes before the House, which has already passed a significantly different version, one that President Obama has threatened to veto. Sponsored by Sen. Lisa Murkowski (R Alaska), the Senate bill would amend the Energy Policy Act of 2005 to “revise or prescribe requirements for loan and loan guarantee incentives for innovative technologies,” and would “establish an e-prize competition or challenge pilot program to implement community and regional energy solutions to reduce energy costs in high-cost regions.”[1]

Broad energy issues aside, the bill contains a number of public land related measures. Noteworthy among these is a provision that would permanently authorize the Land and Water Conservation Fund. The Fund, which directs up to $900M of offshore oil and gas leasing revenues to federal and state conservation projects, was allowed to expire for the first time in its 50-year history last October before being reauthorized for a term of three years in a last-minute spending bill in December. In Montana, the PLRLR’s home state, the Fund has provided more than $11.4M since 2011 alone. In Utah, home of republican representative Rob Bishop, the architect of the Fund’s short-lived demise, that number is closer to $12M.

Also attached to Sen. Murkowski’s bill is a measure known as the Sportsmen’s Act, legislation designed to open federal land to recreational users. Federal lands make up broad swathes of the American West, but are often locked in by private landowners who block public access across their lands. The Sportsmen’s Act would direct the Forest Service and BLM to identify problem areas of this sort and work to develop public access plans. The legislation is not without its critics, some of whom oppose the inclusion of a provision exempting lead ammunition and tackle from the Toxic Substances Control Act.

Finally, another rider would create two new wilderness areas in New Mexico’s Rio Grande Del Norte National Monument, while yet another would implement the Yakima River Basin Water Enhancement Project Phase III Act, which would provide much-needed funding for the Yakima Basin Integrated Plan, a long-term water management effort. That plan is the product of years of negotiation between stakeholders in Central Washington’s Yakima Basin, and aims to both improve river flows, habitat, and fish passage as well as increase water storage.

[1] S. 2012 – Energy Policy Modernization Act of 2016, Summary (https://www.congress.gov/bill/114th-congress/senate-bill/2012) (last viewed Apr. 23, 2016).

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