Notice of Decision, Release of State Interest for Aguilar Substitute Parcel FF-01282 Parcel C

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Notice of Decision, Release of State Interest for Aguilar Substitute Parcel FF-01282 Parcel C

State of Alaska

Department of Natural Resources

Division of Mining, Land and Water

NOTICE OF DECISION

RELEASE OF STATE INTEREST

State Selection File GS-5231

Relinquishment of State Land Selection

AS 38.05.020(b)(8), 38.05.035(a)(11), AS 38.05.035(e), 43 U.S.C. 1617

1. Action

   Proposed relinquishment of State of Alaska (State) entitlement land selection for both the surface and subsurface estates in favor of Aguilar Settlement Agreement substitute Native allotment serialized as FF-01282 Parcel C.

2. Authority

   This relinquishment is being adjudicated pursuant to Alaska Statute (AS) 38.05.020(b)(8), Authorities and Duties of the Commissioner to relinquish land to the Federal Government if land is described in an amended Native Allotment under 43 U.S.C. 1617. The settlement authority of the Attorney General is in accordance withthe lawsuit, Ethel Aguilar v. United States of America,474 F. Supp. 840 (D. Alaska, 1979), hereinafter referred to as Augilar. AS38.05.035(a)(11), which allows the Director of the Division of Mining, Land and Water (DMLW) to manage Statehood Entitlement selections. AS 38.05.035(e) provides authority for disposals of lands, resources, property, or interests in them.

3. Background

   Use and occupancy of Native allotment FF-01282 Parcel C, originally located in Sec. 22, T. 11 S., R. 24 W., F.M., began in 1959; at that time the lands were open to settlement and the filing of allotment applications under the 1906 Native Allotment Act (34 Stat. 197, as amended). In November 1961 the lands in this township were selected under the Mental Health Enabling Act (MHEA) and savings provision of Sec. 6(k) of the Statehood Act. The lands were approved for conveyance under the MHEA and conveyed to the State in September 1963.

   The application for allotment FF-01282 Parcel C was filed with the Bureau of Indian Affairs (BIA) on September 28, 1968. Affidavits supporting exclusive use and occupancy of the allotment were filed with BIA throughout 1977. The BIA filed allotment application FF-01282 Parcel C with the Bureau of Land Management (BLM) in February 1983. BIA records indicate the application was not timely filed with BLM due to an unclear land description.

   BLM notified the State of the allotment application in September 1988, and proceeded to adjudicate the application. In December 1992 the State filed a dispute contesting the applicants exclusive use and occupancy of the allotment due to having offered lands in the immediate area as remote recreation parcels in 1983 and potential conflicts with individuals who purchased lands under that program. In March 1997 it was determined that there were no use conflicts and BLM and the State agreed to proceed with adjudication of the allotment parcel.

   BLM surveyed allotment FF-01282 Parcel C as U.S. Survey 12151 in 1998. Allotment FF-01282 Parcel C was found valid by the BLM on February 4, 2005. Upon issuance of the validity determination, allotment FF-01282 Parcel C became a prior valid right that had been conveyed to the State in error and automatically became one of the defendants in the Aguilarlawsuit.

   In April 2007 BLM requested the State reconvey the allotment to the Federal Government under the Stipulated Procedures for Implementation of Order approved by the Court to implement the decision in Aguilar, hereinafter referred to as the Aguilar agreement. The applicant passed away in 2010. Subsequently, BIA completed its determination as to who qualified as the applicants' heirs. In March 2013 the State declined to voluntarily reconvey the lands in U.S. Survey 12151.

   In accordance with the Aguilar agreement, when the State declines to voluntarily relinquish the original allotment parcel the applicant or their heirs may choose a substitute parcel of State-selected lands to be conveyed by the BLM. Under the Aguilar agreement, applicants agree to relinquish their legally recognized prior valid rights and interests in their original allotment parcel for lands without prior use and occupancy or valid rights elsewhere.

   In August 2017 the BLM requested the State consider relinquishment of lands in the NW4SW4 of Sec. 31, T. 19 S., R. 1 E., Fairbanks Meridian. In February 2018 the State notified BLM it would voluntarily relinquish its selection on the substitute lands pending BLM field examination and survey. The State signed the conditional relinquishment request in December 2019. In December 2019 BLM sent the heirs Notice of the final plan of survey for the substitute parcel.

   In January 2020 the heirs requested BLM correct the legal land description of the substitute parcel to a new location within the same township and section. In February 2020 BLM requested the State consider relinquishment of the corrected location for the substitute parcel, now located in the SW4SW4 of Sec. 31, T. 19 S., R. 1 E., Fairbanks Meridian. In March 2020 the State signed the conditional relinquishment request for the new location, pending BLM survey.

   BLM completed survey of the substitute parcel in 2023, now described as U.S. Survey 14510. On January 25, 2024, BLM submitted the formal request to relinquish the substitute parcel to the State.

4. Administrative Record

   The selection file for state selection GS-5231 constitutes the administrative record for this action.

5. Location

   The allotment is in DNR's Southcentral Region, within Sec. 31, T. 19 S., R. 1 E., F.M. The allotment has been surveyed as U.S. Survey 14510.

   USGS Map Coverage: Healy A1

   Platting Authority: Matanuska-Susitna Borough

   Regional Corporation: Ahtna Inc.

   Federally Recognized Tribe: Native Village of Cantwell

   Village Corporation: Merged with Ahtna, Inc.

   Please see Attachment A for a visual depiction of the allotment.

6. Legal Description

   The allotment has been surveyed as U.S. Survey 14510, containing 40 acres.

7. Selection History

• State General Grant Selection GS-5231 was filed on Nov. 12, 1986, for all currently available land or lands that become available in the future for T. 19 S., R. 1 E., F.M.
• The lands were publicly noticed in a newspaper between April and July 1993.
• Affidavit of Publication received by BLM in Aug. 1993.
• On Dec. 20, 1993, the State filed its final reassertion and amendment, pursuant to ANILCA, for all available lands in the township.
• In Aug. 2017, BLM requested the State consider relinquishing its selection on certain lands in the township for substitute Native allotment parcel FF-01282 Parcel C under the Aguilar agreement.
• In Feb. 2018, the State agreed to conditionally relinquish the lands for parcel FF-01282 Parcel C, pending BLM field examination and survey.
• In Feb. 2020, BLM notified the State that the applicant's heirs for parcel FF-01282 Parcel C requested a modification of the lands for the substitute parcel. BLM requested the State consider relinquishing the new lands while reinstating the selection on the prior parcel.
• In March 2020, the State agreed to conditionally relinquish the lands for parcel FF-01282 Parcel C in the new location, subject to BLM field examination and survey.
• In Jan. 2024, BLM submitted the formal request to relinquish the lands in parcel FF-01282 Parcel C, now surveyed as U.S. Survey 14510.
• The lands in U.S. Survey 14510 are currently selected under GS-5321 and are ranked a priority 4.

  8. DMLW and Agency Review

  Information and comments received from multiple sections within DMLW prior to and during agency review have been considered and included in the preparation of this decision. The proposed relinquishment documents were distributed to State agencies for review from February 27, 2024, through March 26, 2024. The intent of an agency review is to request comments from agencies that may be affected by the selection relinquishment. Agencies are given the opportunity to evaluate and comment on the relinquishment to determine if it is in the State's best interest to release the land selection and, if so, provide supporting reasons.

  The following agencies or groups were included in the agency review:

• Department of Fish and Game: The Alaska Department of Fish and Game (ADF&G) has reviewed the proposed relinquishment of 40 acres of state land located in Sec. 31, T. 19 S., R. 1 W., FM and near the Denali Highway. Although this area may be used by the Nelchina Caribou herd, ADF&G has no objection to the relinquishment of this parcel. Thank you for the opportunity to review and provide comments.
  • DMLW Realty response: Thank you for your comment.
• DNR DMLW Southcentral Regional Land Office: DNR DMLW SCRO has reviewed the project, the proposed relinquishment of 40 acres near the Denali Highway as a substitute allotment for a 1906 Native Allotment that qualifies as an Aguilar Allotment, and has no concerns or comments to provide at this time. Thank you for the opportunity to review the project.
  • DMLW Realty response: Thank you for your comment.
• DNR DMLW Competitive Land Sales Unit: No objection.
  • DMLW Realty response: Thank you for your comment.

• Dept. of Transportation: Thank you for the opportunity to review the proposal. The Alaska Department of Transportation & Public Facilities has no comment at this time. Though unlikely, if you received comment from any other DOT&PF personnel on this matter, I defer to them.
  • DMLW Realty response: Thank you for your comment.
• DNR DMLW PAAD Section: PAAD does not oppose the proposed relinquishment. The small pond within the parcel is less than 4 acres and is not anadromous. There are no known RS2477 trails in the vicinity and no visible trails within or to the parcel.
  • DMLW Realty response: Thank you for your comment.
• DNR DMLW Non-competitive Land Sales Unit: As State Native Allotment Coordinator, I fully support the relinquishment of this land in favor of the Mary Flood NA, Parcel C. This proposed relinquishment is for substitute land selected by the heirs of Mary Flood. The State declined reconveyance of the original parcel in 2013. A recent review of the original parcel shows complications from several trails identified over the years that cross the original parcel. It is in the State's best interest to relinquish the State selection for this new parcel, instead of attempting to resolve the various trails on the original parcel.
• • DMLW Realty response: Thank you for your comment.

  The following agencies or groups were included in the agency review, but no comment was received:

  • Department of Agriculture.
  • Department of Geologic and Geophysical Studies.
  • DNR DMLW Resource Assessment and Development Section.
  • DNR DMLW Mining Section.

  9. Public Comment

  Public notice of the proposed relinquishment was conducted from February 27, 2024, through March 26, 2024. The notice was posted to the State of Alaska Online Public Notice System. Copies of the notice were sent to the applicant, the Native Village of Cantwell, Ahtna, Inc., Doyon Limited, the Denali and Cantwell Post Offices, the Mayor of the Matanuska-Susitna Borough, the Matanuska-Susitna Borough planning commission and manager, The Alaska Board of Game, the Denali Advisory Committee Game Board, the BLM, the BIA Regional Realty Office and Title Services Center, Alaska Department of Natural Resources Commissioners Office, Alaska State legislature, and adjacent landowners.

  No public comments were received during the public comment period.

  10. Discussion and Alternatives

  BLM reviewed the application in accordance with the Stipulated Procedures for Implementation of Order in Aguilarfor Native allotment FF-01282 Parcel C, because the lands had been previously conveyed to the State. BLM determined application FF-01282 Parcel C to be valid on Feb. 4, 2005. Under Aguilar, BLM requests that valid allotments erroneously conveyed to the State be reconveyed to the federal government for eventual conveyance to the applicant or their heirs. If the State declines to reconvey, the applicant can forfeit their legal prior valid rights and interests in their original allotment parcel in exchange for State-selected lands without prior use and occupancy or valid rights elsewhere. If the applicant declines to select other lands, BLM can sue the State for title recovery for the original allotment.

  The applicant and their heirs decided to select a substitute parcel of land in lieu of the original allotment. The substitute lands are located in T. 19 S., R. 1 E., F.M., and have been surveyed as U.S. Survey 14510. The parcel is located approximately 1 mile northeast of the Denali Highway.

  The surrounding land ownership pattern is a mix of State-owned land, lands selected by the State but currently managed by the BLM, lands top-filed by the State and currently managed by the Federal Entergy Regulatory Commission (FERC) in support of the Susitna-Watana Hydroelectric Project, and isolated parcels of private land. The State relinquishing the lands is in keeping with the surrounding land pattern and would likely not create management difficulties in the future.

  The parcel is not crossed by any accepted and codified Revised Statute Trails. There are no trails permitted by the BLM, State, or unauthorized trails accessing or crossing the allotment. There are no public or navigable waters within or adjacent to the allotment.

  If the State fails to relinquish the lands, the BLM will likely pursue title recovery of the original allotment parcel, which has been found unsuitable for reconveyance to the BLM due to existing public use, public waters, and impact to adjacent landowners. Results of the agency review and public comment solicitation failed to indicate any concerns with relinquishing the lands in favor of the applicant or provide any strong support for retention of the State's selection.

  The State considered the following alternatives in adjudicating the request for relinquishment:

  Alternative 1: Relinquish the State's land selection in full (both surface and subsurface estate).

  Alternative 2: Maintain State land selection.

  12. Decision

This decision considers all public and agency review comments received. After considering the facts and input described above, the Department finds it is in the best interest of the State to choose Alternative 1 and relinquish the above-described state selection to facilitate conveyance of the substitute Native allotment.

Recommended by:

___________________________________ ______________________________

Lacy Hamner Date of Signature

Natural Resource Manager 2

Realty Services Section

Division of Mining, Land and Water

Department of Natural Resources

Approved by:

___________________________________ ______________________________

Jane Boer Date of Signature

Realty Services Section Chief

Division of Mining, Land and Water

Department of Natural Resources

Approved by:

__________________________________ ______________________________

Commissioner Boyle Date of Signature

Department of Natural Resources

Reconsideration

An eligible person affected by this decision, and who provided timely written comment or public hearing testimony to the department, may request reconsideration to the DNR Commissioner per AS 44.37.011 and 11 AAC 02. Any request for reconsideration must be received by the Commissioner's Office within twenty (20) calendar days after issuance of the decision under 11 AAC 02.040. The Commissioner may order or deny a request for reconsideration within thirty (30) calendar days after issuance of the decision. If the Commissioner takes no action on a request for reconsideration within thirty (30) days after issuance of the decision, the request for reconsideration is considered denied. The Commissioner's decision on reconsideration, other than a remand decision, is a final administrative order and decision of the department. An eligible person must first request reconsideration to the Commissioner before seeking relief in superior court. The Alaska Court System establishes its own rules for timely appealing final administrative orders and decisions of the department.

Reconsideration/appeal may be mailed or hand-delivered to the DNR Commissioner's Office, 550 W. 7th Avenue, Suite 1400, Anchorage, Alaska, 99501; or faxed to (907)-269-8918 or sent by electronic mail to [email protected]. Reconsideration must be accompanied by the fee established in 11 AAC 05.160(d)(1)(F), which has been set at $200 under the provisions of 11 AAC 05.160(a)-(b). A copy of 11 AAC 02 is available on the department's website at https://dnr.alaska.gov/mlw/pdf/DNR-11-AAC-02.pdf.

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