TESTIMONY OF DRUE PEARCE,

SENIOR ADVISOR TO THE SECRETARY OF THE INTERIOR FOR ALASKA

BEFORE THE SENATE COMMITTEE ON ENERGY AND NATURAL RESOURCES, SUBCOMMITTEE ON PUBLIC LANDS AND FORESTS

REGARDING S. 2016 A BILL TO AUTHORIZE THE EXCHANGE OF LANDS BETWEEN THE NEWTOK NATIVE CORPORATION AND THE DEPARTMENT OF THE INTERIOR



July 30, 2002

Mr. Chairman and members of the subcommittee, I appreciate the opportunity to appear before you today to present the views of the Department of the Interior on S. 2016, which would direct a land exchange between the Department of the Interior and Newtok Native Corporation. The purpose of this exchange is to provide a new site for the Native Village of Newtok, Alaska, on lands within the Yukon Delta National Wildlife Refuge on Nelson Island. The present village site is experiencing severe erosion along the banks of the Ninglick River. The average annual erosion rate is 90 feet per year, and it is expected that the land under the homes, schools, and businesses of Newtok will erode within eight years.

We continue to support, and have supported from the onset, the desire of the residents of Newtok to relocate their village from its present site across the Ninglick River to an upland area on the Yukon Delta National Wildlife Refuge that is adjacent to other Newtok Village owned lands on Nelson Island.



We have concerns, however, with the bill as currently written. Fish and Wildlife Service negotiations with Newtok seek to balance the necessity of the villagers to relocate to a new village site that is suitable and will accommodate the immediate and future needs of the Village, while also providing protection for wildlife and their habitat on the Refuge. We are optimistic that together we can reach an agreement through careful planning and continued negotiations that satisfies both parties.



In November 1996, Newtok Native Corporation passed a resolution authorizing the Corporation to negotiate a land exchange with the Service. At that time, the Corporation identified approximately 19,000 acres of Refuge land on Nelson Island that they deemed suitable and necessary for a new village site. Immediately thereafter, negotiations began, and by December 1997, the Regional Director for the U.S. Fish and Wildlife Service submitted an intent to exchange agreement for a 21,427 acre exchange to Newtok Native Corporation.



Newtok Native Corporation responded to the proposed agreement by reducing both the Refuge land they sought on Nelson Island to 14,750 acres and their corporate land offered elsewhere to 11,105 acres. Negotiations were temporarily stalled over the amount of land to include in the exchange. When S. 2016 was introduced on March 14, 2002, Newtok's request for Refuge lands for a new village site on Nelson Island was reduced to 5,580 acres. We recommend that potential revisions to S. 2016 should include an amount of land that is of sufficient size to provide for the current and future growth of the Village and for its necessary infrastructure. Since the passage of the Alaska Native Claims Settlement Act (ANCSA) in 1971, the Village of Newtok has nearly tripled in population to about 321. Continued growth of the Village population must be considered in the planning for necessary infrastructure. There should also be a sufficient exchange of lands of high value to wildlife to balance or at least minimize, the loss of Refuge lands associated with developing undisturbed habitats in and around Nelson Island.



We believe that surveys of the proposed Nelson Island lands should be conducted to determine the site and size for the Village. Without such surveys it is impossible to know with certainty whether the proposed exchange provides adequate resources for the Village and whether the future needs of the community can be met. We believe it is important to note that a description of the lands in the legislation at this time might result in the need for future adjustments.



In addition, it is unclear how the proposed new village site might impact wildlife. In the current proposal, the proposed site is closer to Baird Inlet Island than the present village. The island supports a large colony of nesting Pacific brant. One of just five major Pacific brant colonies on the Refuge, Baird Inlet Island is a critical production area for these geese. During an average year, up to 4,500 pairs of brant use Baird Inlet Island to nest and brood their young. Nests on this island comprise up to 25% of the colonial nests on the Refuge in any given year. Air traffic to and from a new airport, if routed directly over Baird Inlet Island, could cause disturbances to birds at critical stages in their life cycle as well as be potentially hazardous to aircraft and the safety of the flying public. Increased boating activity adjacent to the island would be an additional source of disturbance to the birds as villagers travel to and from their traditional subsistence use area northwest of the new village site and when supplies are brought into the new village. In addition to Pacific brant, other species likely to be impacted by the proximity of the Village and airport to the island are emperor goose, cackling Canada goose, Pacific white-fronted goose, the threatened spectacled eider, and muskox. The Service intends to address these issues with the Village during the NEPA review for the airport siting and construction.



Current law authorizes the Secretary to conduct land exchanges in Alaska using either Section 22(f) of ANCSA, as amended, which provides authority to conduct land exchanges on the basis of equal value; or Section 1302(h) of the Alaska National Interests Lands Conservation Act (ANILCA), which provides for other than equal value exchanges if the parties agree to an exchange and the Secretary determines it is in the public interest.



If the exchange is done on an equal value basis, we would urge the Committee to allow the Service to follow its standard appraisal process. The methodology provided in the bill for conducting the proposed exchange of lands does not follow the standard procedures used by the Service in appraising lands for either acquisition or exchange. We believe the proposed methodology could impede our ability to accomplish the exchange by setting timeframes and procedures that might be problematic for both parties.



An additional concern is that, as drafted, the legislation is unclear as to whether selected lands being offered by Newtok will be deducted from ANCSA entitlement upon relinquishment of Newtok's selections. Native Corporations have no legal rights to selected lands until conveyance. If Newtok offers selected lands, they should be charged against their ANCSA entitlement or Newtok would be offering Federal lands in exchange for Federal lands on Nelson Island.



Newtok has expressed concern over statutory and regulatory restrictions imposed by Section 22(g) of ANCSA on Corporation land within the boundaries of the Clarence Rhode Unit of the Yukon Delta National Wildlife Refuge. Only 589 acres of the Refuge lands identified for exchange at the new village site would be subject to Section 22(g) restriction. We agree that this legislation should direct that lands received by Newtok in this exchange be free from restrictions imposed by Section 22(g) of ANCSA.



The proposed legislation as drafted, in Section 2(b), would exempt the conveyance of lands to the Newtok from all laws, rules, and regulations. This would prohibit the Service from administering other federal laws and regulations that do not apply strictly to refuge lands. Also, the United States has treaty obligations with many nations that require that certain resources are protected such as the Migratory Bird Treaty Act and the Marine Mammals Protection Act. Other laws such as the National Environmental Policy Act, the Endangered Species Act, the Clean Air Act, the Clean Water Act, etc., should apply on lands conveyed to Newtok, as they do throughout the United States.



This same language in Section 2(b) jeopardizes the protection of valid existing rights. All Alaska Native and other legislation provides protection for valid existing rights. For example, an existing Native allotment application or certificate on refuge lands is a valid existing right and must be protected as such and that area would be excluded from conveyance to Newtok.





Summary and Conclusions



While we have concerns with some of the details of the bill, we support legislation that directs the Service and Newtok to negotiate an exchange that insures adequate land is conveyed for village infrastructure. Once adequate lands are identified by the parties, the exchange can be completed through established land exchange procedures. With the terms of the legislation modified as suggested, the lands conveyed to Newtok would also be free of 22(g) restrictions. The exchange would protect refuge resources and include sufficient land to provide adequate resources and facilities for the Village.

I appreciate the opportunity to comment on S. 2016 and the Department looks forward to working with Newtok representatives and the Committee to achieve the goal of relocation and reestablishment of the Village to more suitable terrain while protecting the fish and wildlife resources and their habitat within the National Wildlife Refuge System.