Vol. 25, No.47 Week of November 22, 2020
Providing coverage of Alaska and northern Canada's oil and gas industry

ANWR action amps up

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State stiffed on ANWR border dispute; BLM bolsters lease sale preparation

Steve Sutherlin

Petroleum News

The State of Alaska got some bad news in early November, followed by some good news, regarding its interests with respect to the Arctic National Wildlife Refuge.

The U.S. Department of the Interior Board of Land Appeals ruled against the state Nov. 9 in a decades-long border dispute which has prevented the state from taking title to 19,322 acres along the western edge of the refuge between the Staines River and the Canning River, which it selected under the Alaska Statehood Act of 1959.

The IBLA ruling - which denied an appeal filed by the Alaska Department of Natural Resources’ Division of Mining, Land and Water over a 2016 decision of Interior’s Bureau of Land Management - clears the way for the state to litigate its position in federal court, should it so choose.

In a separate action Nov. 17, the BLM Alaska State Office published a notice in the Federal Register calling for nominations and comments on 32 tracts covering all 1.6 million acres of the ANWR Coastal Plain to consider in its upcoming Coastal Plain oil and gas lease sale. The plain, also referred to as the ANWR 1002 area, was set aside by Congress years ago because of its oil and gas potential.

BLM Alaska must receive all nominations and comments on the tracts on or before Dec. 17, the notice said. The lease sale itself will require 30 additional days of notice before it can be held, according to a Nov. 16 release by the Alaska congressional delegation.

The disputed acreage was addressed in the Nov. 17 BLM notice.

“Tract number 29 covers the disputed Staines-Canning River area. It is currently under litigation with the State of Alaska,” the notice said. “The BLM may elect to not offer this tract in the upcoming sale.”

Currently, the Alaska DNR’s Division of Oil and Gas includes the disputed acreage in its areawide lease sales; leaseholders are warned that parts of their leases are in a disputed area.

Next move belongs to the state

As of Petroleum News press time, the state had not made a decision on whether to press forward in federal court on the ANWR border issue, Brent Goodrum, DNR deputy commissioner, told PN in a Nov. 17 interview.

“The state just got the decision very recently and is still evaluating it, but that is one of the options that remains open to the state - the federal court,” he said.

The state considers the disputed acreage to be highly prospective for oil and gas.

“It remains an important issue for the state,” Goodrum said. “Land entitlement issues are critically important and the state will continue to approach it as such.”

Under the statehood act, the federal government still owes the state approximately 5 million acres. Because Alaska had no economic base to fund state government, the act made a grant to the new state of 104 million acres of federal lands.

The state requested priority conveyance of the disputed lands in 2014, during the administration of Gov. Sean Parnell, asserting that the lands are not within the ANWR boundary and are available for selection by the state.

The state said the western boundary of ANWR had “been improperly mapped” for many years by the U.S. Fish and Wildlife Service, which manages the refuge. USFWS revised federal maps of the region to indicate that the Staines River is a part of the Canning River - the western boundary of ANWR as defined by Public Land Order 2214, issued in 1960.

The Parnell administration, following historical and legal research as well as a field inspection by the Alaska Department of Natural Resources and the Alaska Department of Law, concluded that the Staines is a separate river unto itself.

But in its 52-page decision, IBLA’s Office of Hearings and Appeals said the state had not met its burden to demonstrate error in the appealed decisions or in BLM’s performance of the surveys underlying those decisions.

“The State asserts that the lands are ‘outside of the area withdrawn from selection for the Arctic National Wildlife Range by PLO 2214 in 1960’ and ‘are vacant, unappropriated, and unreserved (‘VUU’) federal lands that the State is permitted to select in fulfillment of its general land grant entitlement under the Statehood Act,’” the decision said. “BLM counters that the disputed lands are encompassed within the intended boundary described by the drafters over 60 years ago, as implemented through numerous undisputed Departmental actions over the ensuing decades.”

“The State proffers a host of arguments asserting methodological and factual discrepancies between BLM’s surveying of the ANWR boundary, the language used in PLO 2214, and circumstances observed on the ground, derived largely from fieldwork, expert analysis, and application of modern resources performed over the last decade,” the decision said. “But after acceding without objection to the agencies’ location of the boundary for over 40 years, the State’s newly crafted opposition offers little to no material insight into the intent of the drafters derived from the resources at their disposal in 1960.”

Goodrum disputed that BLM’s departmental actions were undisputed over decades, or that the state raised no objections to the agencies’ location of the boundary.

“Even the original 1984 case that went before the Supreme Court acknowledged that there was a boundary dispute between the federal government and the state, and, it was going to be the one that would ultimately rule on that,” Goodrum said. “So I would say that it has been a couple of decades that there’s been a known dispute.”

“We’ve been consistent in our position on this since the 70s,” Marty Parsons, director of the Division of Mining, Land and Water said in the same interview. “We were originally denied those lands.”

In 1964 the state filed general grant selection for lands adjacent to ANWR, then called the Arctic National Wildlife Range, including land west of the Canning River, Goodrum said in a 2015 address to the Alaska Legislature. Later that year, the land selection was tentatively approved by BLM.

After Alaska requested clarification of the boundary in 1965, BLM amended the tentative approval, reducing the acres conveyed to the state, he said. In 1974 the state received patent to land west of the Staines River. In 1978 it reasserted claim to land west of the Canning River - the acreage dropped from the state’s original grant selection in 1965.

In 1992 the state relinquished selection of “those lands within the Arctic National Wildlife Refuge” but in 1993 the state reasserted “top filing” on land west of the Canning River, Goodrum told the Legislature.

“We only relinquished those lands that were within the reserve, or the range,” Goodrum told PN. “We just left the statement that we relinquish those lands that are within the ANWR boundaries - and that we knew that that boundary was in dispute - not lands that are west of the Canning river.”

Lease sale in January?

Given the 30-day public comment period, followed by the required 30-day sale notice, the first weekday upon which the BLM could schedule the sale would be Jan. 18, 2021.

U.S. Secretary of the Interior David L. Bernhardt signed a Record of Decision Aug. 17, approving the Coastal Plain Oil and Gas Leasing Program in the refuge.

“I do believe there certainly could be a lease sale by the end of the year,” Bernhardt said in the press conference announcing the decision.

The leasing program is required by law in the Tax Cuts and Jobs Act of 2017 (Public Law 115-97), which was passed by Congress and signed into law by President Donald Trump on Dec. 22, 2017. The first of two congressionally mandated lease sales in the area must be held no later than the end of 2021.

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