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TESTIMONY OF MICHAEL REARDEN, MANAGER,YUKON DELTA NATIONAL WILDLIFE REFUGE, U.S. FISH AND WILDLIFE SERVICE, UNITED STATES DEPARTMENT OF THE INTERIOR 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 AN ALASKA 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 U.S. Fish and Wildlife Service 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. 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.

The Service has successfully concluded negotiated land exchange agreements with the Aleut Corporation and Department of the Navy for transfer of refuge lands and Naval improvements at Adak, Alaska, and with Cook Inlet Region, Inc., and the United States Forest Service for retention of important fisheries and public use areas at the confluence of the Kenai and Russian River areas on the Kenai Peninsula in Alaska. These negotiated exchange agreements are to be ratified by legislation currently moving through this session of Congress.

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 and contains necessary mineral resources (gravel and rock) to provide for the current and future growth of the village and for its necessary infrastructure. The village of Newtok has nearly tripled in population to about 321 since the census was conducted pursuant to the Alaska Native Claims Settlement Act. Continued growth of the village population must be considered in the planning for necessary infrastructure such as airport, harbor, roads, sewage, solid waste disposal, water, schools, homes and other utilities.
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The Service supports a land exchange with sufficient land to establish a village infrastructure as well as provide for future growth of the village. There should be a sufficient exchange of lands of high value to wildlife to balance or at least minimize, the loss of Refuge lands associated with removing land from the Refuge and developing undisturbed habitats in and around Nelson Island. The exchange should also avoid creating isolated tracts of refuge land that are difficult to manage.

We believe that careful planning must be conducted prior to determining a site and size for relocating the village. This planning must address refuge wildlife issues, village and airport feasibility studies, engineering concerns, and take into account compliance with other regulatory authorities, such as the Corps of Engineers for wetland and harbor issues, the Federal Aviation Agency and State of Alaska Department of Transportation and Public Facilities for location and direction of runways and State of Alaska Department of Environmental Conservation for locating sewage, household waste sites and location of an adequate supply of potable water. Although the Service agreed to permit such studies on Refuge lands on Nelson Island, to our knowledge, they have not yet occurred. Without such necessary studies it is impossible to know with certainty exactly how much land will be needed, and what specific areas should be included. A legislatively directed exchange for specific lands at this time may result in an inadequate area being conveyed to Newtok and that could require future land exchanges.

In addition, it is unclear how the proposed new village site will impact wildlife. In the current proposal, the proposed site is within two miles of Baird Inlet Island, a low, wet, grassy island that 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 serious 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.

Other concerns with S. 2016

It is important that any revision to S. 2016 include a requirement for appraisals and the valuation of the lands being offered in the exchange. Current law authorizes the Secretary to conduct land exchanges in Alaska. Section 22(f) of the Alaska Native Claims Settlement Act (ANCSA), as amended, provides authority to conduct land exchanges on the basis of equal value, and Section 1302(h) of the Alaska National Interests Lands Conservation Act provides for other than equal value exchanges if the parties agree to an exchange and the Secretary determines it is in the public interest. Omitting the requirement for appraisals or consideration of the value of the lands being offered would be a significant departure from current authority for land exchanges. It also raises issues of fairness with respect to transactions with other Native Corporations, the State of Alaska, and other landowners in Alaska.

Other concerns that need to be considered in the appraisal process involve instances where different land estates are being exchanged, such as surface estate lands for full fee estate lands. Newtok owns only the surface estate of the majority of their lands. These lands are located in the Clarence Rhode Unit of the Yukon Delta National Wildlife Refuge and as a pre-ANCSA refuge, the subsurface estate remained in Federal ownership and Calista Region received title to in lieu subsurface in another area. The Federal estate in the Refuge System is offered in fee. This exchange should be based on the fair market values of the estates involved in order for it to be in the public interest.

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 would exempt Newtok from all Service laws, rules, and regulations. The Service administers other federal laws and regulations that do not apply strictly to refuge lands. 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 Endangered Species Act, The Clean Air Act, Clean Water Act, etc., should apply on lands conveyed to Newtok, as they do throughout the United States.

Time frames for the Secretary to make the conveyances to Newtok are not reasonable. Additional time is needed to check the title of the lands being conveyed by Newtok, to accept relinquishments of valid prioritized selections by Newtok, and to document the public records.

The current language fails to provide protection for valid existing rights by providing that any Native allotments that are located on Refuge lands to be conveyed to Newtok be relocated to other lands. This is unprecedented. All Alaska Native and other legislation provide protection for valid existing rights. 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 strong concerns with some of the details of the legislation, we support legislation that directs the Service and Newtok to negotiate an exchange that takes into account the studies and consultations needed to insure adequate land is conveyed for village infrastructure and effective land management. Once adequate lands are identified, the exchange can be completed through established land exchange procedures using our existing authorities. With the terms of the legislation modified as suggested, the lands conveyed to Newtok would be free of 22(g) restrictions. The exchange would protect refuge resources; include sufficient land to provide for proper airport and harbor location; insure a source of potable drinking water for the village; ensure adequate gravel sources for the necessary airport; provide the area needed for road and home construction and allow siting of facilities where necessary water and sewer lines could be built.

We appreciate the opportunity to comment on S. 2016 and look 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.

Disclaimer: All statements are not the opinions or position of those testifying, rather they are the official positions taken by the Administration.