I. Introduction

In 2004, the United Nations uncovered over 300 bullet-riddled bodies in Youghbor, a small village in Liberia.^{Arthur G. Blundell, Conflict Timber and Liberia’s War, 43-44 European Tropical Forest Res. Network News 32, 33 (2005), available at http://www.etfrn.org/etfrn/newsletter/news4344/articles/2_2_Blundell.pdf.} As described by eyewitnesses, the massacre was carried out by the militia forces of former Liberian warlord, Charles Taylor.^{Id.; e.g., Charles Taylor Lawyer Storms Out of War Crimes Trial, BBC News, Feb. 8, 2011, http://www.bbc.co.uk/news/world-africa-12389550.} When the United Nations investigated Taylor, they made a significant discovery as to how he financed his military prowess: timber. The timber that fueled Taylor’s crimes was harvested from what has appropriately been coined as Africa’s “blood forests.”^{Richard Black, New Dawn for Liberia’s ‘Blood Forests’, BBC News, Oct. 12, 2006, http://news.bbc.co.uk/2/hi/science/nature/6035617.stm.}

The term of “blood” or “conflict” diamonds is widely known, most notably from the film starring Leonardo DiCaprio, Blood Diamond.^{Stephen Miles, Why Film Matters: No, It Really Does, Movie Cultists (May 23, 2010), http://moviecultists.com/2010/05/23/why-film-matters-no-really-it-does/.} “Conflict diamonds” refers to the exploitation of diamonds mined in territories of conflict to fund the furtherance of the conflict.^{Conflict Diamonds: Sanctions and War, U.N. Dep’t of Pub. Info., http://www.un.org/peace/africa/Diamond.html (last visited Apr. 22, 2012).} Recent notoriety of the exploitation has resulted in a resounding response world over, as diamond manufactures now proactively ensure that their products are conflict free.^{See, e.g., The World Jewellery Confederation (CIBJO), The Retailers Guide to Marketing Diamond Jewelry 26 (2007), available at http://www.cibjo.org/dtc/cibjo_Main.pdf.}

What remains widely unknown to the general population is that diamonds are not the only resource exploited in such a devastating manner. Timber is exploited by the same criminals in furtherance of the same corrupt objectives.^{See generally Black, supra note 3.} Analogous to conflict diamonds, conflict timber is defined as follows:

timber that has been traded at some point in the chain of custody by armed groups, be they rebel factions or regular soldiers, or by a civilian administration involved in armed conflict or its representatives, either to perpetuate conflict or take advantage of conflict situations for personal gain.^{See Global Witness, The Logs of War: Timber Trade and Armed Conflict 17–40, (Mar. 2002), available at http://www.unglobalcompact.org/docs/issues_doc/Peace_and_Business/Logs_of_War.pdf.}

While diamonds may compete with oil as the most valuable natural resource on Africa’s expansive continent, timber is one of the most abundant.^{Food & Agric. Org., State of the World’s Forests 4 (2009), available at http://www.pefc.org/images/stories/documents/external/i0350e.pdf (Africa is home to sixteen percent of global forest cover).} Like diamonds, timber serves as a means for some of the world’s most horrific atrocities and the primary source of funding to sustain violent civil unrest.^{See Global Witness, supra note 8, at 17–40.} Conflict in Africa exemplifies some of the most devastating examples, yet blood forests persist on a global level and have taken particular root in Africa, South East Asia, and South America.^Id.

Liberia is the poster child of forest exploitation. The African nation has long been subject to an unstable government. In 1989, a brutal civil war began, and Charles Taylor, introduced at the outset of this article, capitalized.^{Id. at 16; see also Blundell, supra note 1.} Taylor exploited a heightened level of ethnic animosity that had accrued from the nation’s unique origin.^{Id. The nation of Liberia was founded by freed American slaves who were shipped to Africa. At the outbreak of the civil war, the descendants comprised only three percent of the total population but had maintained rule.} His forces quickly gained control of most of the nation and, with it, its natural resources. The unrest precipitated the collapse of the already feeble economy.^{Blundell, supra note 1, at 33.} However, despite the commercial disarray, Liberia is home to nearly half of West Africa’s tropical forests, and thus an abundant supply of timber.^{Background Note: Liberia, U.S. Dep’t of State (Nov. 22, 2011), available at http://www.state.gov/r/pa/ei/bgn/6618.htm (last visited Feb. 26, 2011).} The timber industry continued to attract investment during the insurgency and subsequent unrest.^{Blundell, supra note 1, at 1.} With control of this resource, Taylor and his forces had means of funding and support.^{See Global Witness, supra note 8, at 17-40; Blundell, supra note 1.}

By 2002, the Liberian timber industry accounted for 80 million U.S. dollars and 19 million in tax revenue.^{Blundell, supra note 1, at 33.} Yet these tax transactions were not processed in typical fashion. Rather, corruption disrupted the funds from being paid or being properly used. For example, in lieu of taxes, one company paid at least 1.5 million U.S. dollars of owed taxes to known arms dealers.^Id. In more direct instances, Taylor directly exchanged logging concessions or tax forgiveness for weapons.^Id. For instance, Taylor issued substantial logging concessions to notorious Ukrainian Mafia boss Leonid Minin, a known leader in the illicit arms trade.^Id.

While the timber companies exploited Liberia’s forests and funded Taylor’s militias, they also armed security forces of their own to intimidate locals into providing access to untouched forests.^Id. These militias were largely enterprises associated with Taylor, and directly under the control of General Sumo, head of the Forestry Development Authority.^Id. Sumo is accused of entering neighbor nation Cote d’Ivoire to loot, recruit new fighters, and attack civilians who resisted his militia.^{U.N. S.C. Rep. of the Panel of Experts concerning Liberia, transmitted by letter dated June 1, 2004 from the Chairman of the Security Council Comm. established pursuant to resolution 1521 (2003) concerning Liberia addressed to the President of the Security Council, 35, U.N. Doc. S/2004/396 (June 1, 2004), available at http://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/Liberia%20S2004%20396.pdf.} Eyewitnesses report that Sumo directed his forces to murder the civilians of the village Youghbor in May 2003.^Id. The United Nations’ subsequent discovery of the bodies corroborates the reports of enslavement, mutilation, and cannibalism at the command of Charles Taylor, crimes bankrolled by timber sales.^{During Taylor’s trial at The Hague, one of his war lords testified that the two ate a human heart together. Leo Cendrowicz, Lies and Rumors: Liberia’s Charles Taylor on the Stand, Time, July 14, 2009, http://www.time.com/time/world/article/0,8599,1910365,00.html. Currently, Mr. Taylor is awaiting sentencing for his crimes against humanity, having been found guilty by the Special Court for Sierra Leone sitting at The Hague.}

The Liberian story serves as but one example of “conflict timber,” one of the most striking consequences of illegal logging. In fact, the international timber market harbors one of the world’s most expansive, yet lesser known, markets controlled by organized crime syndicates. While this consequence is the most appalling, some less immediate and obvious impacts abound, as illegal logging has devastating consequences on numerous levels.

Over the past forty years, the international community has become increasingly aware of these consequences and has begun to respond. The parties involved and the measures taken are various. Nation states, world governing bodies, and non-governmental organizations (NGOs) have worked to stifle the practice through education, legislation, treaties, and joint agreements. In 2008, the United States issued one of the most dramatic responses, expansively amending the nation’s oldest wildlife protection statute, the Lacey Act.^{Marcus A. Asner & Grace Pickering, The Lacey Act and the World of Illegal Plant Products, Envtl. L. N.Y., June 2010, at 101, 102.} First enacted in 1900, the century old statute was amended to criminalize the importation of illegally harvested timber and products made from such materials.

The purpose of this paper is to provide a critical analysis of the directive to curb illegal logging and the market for illegally harvested forest products, with a particular emphasis on the United States’ 2008 Amendments to the Lacey Act. Part II will provide an overview of the illegal timber trade and its impact globally. Part III will analyze the measures being taken among the international community to date, focusing on numerous case studies. Part IV will detail the amended Lacey Act and appraise its potential role amongst this backdrop. Finally, in Part V, the article will argue that to effectively extinguish the practice of illegal logging by diminishing the market for illegally harvested timber, the provisions of the United States’ Lacey Act, and what may become its counterpoints in other nations, must be interpreted to align with a unified, cohesive system of global governance.

II. Illegal Logging

A. Disagreement Regarding Defining Illegal Logging

There is substantial disagreement on how to define illegal logging.^{Ministerial Conference on the Prot. of Forests in Eur., Combating Illegal Harvesting and Related Trade of Forest Products in Europe: Report for the MCPFE Workshop Held in Madrid, Spain 11 (Nov. 3−4, 2005), available at http://www.foresteurope.org/filestore/foresteurope/Publications/pdf/illegal_2007.pdf.} Environmental NGOs tend to favor a broader definition covering all the relevant acts of the practice, while industry and government representatives tend to prefer a narrower set of criteria.^Id. The United Nations’ Food and Agriculture Organization (FAO) generally defines logging and timber trade operations as illegal when “wood is harvested, transported, processed, bought or sold in violation of national laws.”^{Food & Agric. Org., FAO Forestry Paper 145, Best Practices for Improving Law Compliance in the Forestry Sector 5 (2005), available at ftp://ftp.fao.org/docrep/fao/008/a0146e/a0146e00.pdf.} This definition is analogous to many other accepted definitions. However, because these definitions incorporate “national laws,” they leave to question what national laws should or should not be considered and how to respond when a developing nation does not have appropriate forest legislation in place.^{See Duncan Brack & Katharina Umpfenbach, Not For Felling, The World Today, Oct. 2009, at 9, available at http://www.illegal-logging.info/uploads/Brackwt100907.pdf (“Forest laws are often contradictory or unclear, and poorly enforced because of a lack of resources.”).} The World Wildlife Fund (WWF) has responded by providing a lengthy definition of the inverse, legally harvested timber, attempting to establish positive obligations that must be met for logging practices to be legal.<sup>World Wildlife Fund, WWF Guidelines for Investment in Operations That Impact Forests 15 (2003), available at assets.panda.org/downloads/wwfinvestmentpol7oct03final.pdf. The World Wildlife Fund defines legally harvested timber as “Legal Source” by assessing the following criteria:
Tenure:
- the logging contractor/operator is authorized to be there by the proprietor (lease, concession agreements etc. are in place)
- property and/or customary rights are respected
- there is no dispute on property/customary rights
All Government required approvals are in place
- harvesting permits/cutting licenses
- annual allowable cut permits
Operations meet the requirements and stipulations of the permits
All national and local legislative and administrative processes for tendering, concession and lease processing have been followed.
There are no credible allegations of corruption in the tendering/concession/lease process
Revenue Payments
Stumpage fees and other required revenue payments are paid
Timber extracted corresponds to volumes authorized in the license/contract (e.g. no duplicate felling licenses).
There is accurate measurement, reporting and declaration of values and volumes extracted/transported . . . .
Id.</sup>

With discrepancy as to what exactly qualifies as illegal logging, there is no universal agreement as to the extent it occurs. Quantifying the practice is further hampered by the complexity of collecting data on international trade with wood and wood products. For example, there is no scientific method to determine when logging permits exceed quotas or are obtained through corrupt measures.^{See generally Mathias Dieter, Analysis of Trade in Illegally Harvested Timber: Accounting for Trade via Third Party Countries, 11 Forest Pol’y & Econ., 600–07 (2009).} Thus, global figures vary because they are difficult to estimate. However, scholars agree that illegal logging is, at the least, a vastly practiced crime.^{See Ministerial Conference on the Prot. of Forests in Eur., supra note 28, at 9.} Under broader definitions, estimates suggest that illegal activities may account for over one tenth of the global timber trade. Scholars further believe that more than half of all logging and timber trade activities conducted in the developing world are illegal.^{Duncan Brack, Chatham House, EEDP/LOG BP 06/01, Illegal Logging (Aug. 2006), available at http://www.chathamhouse.org/sites/default/files/public/Research/Energy,%20Environment%20and%20Development/bp0806illegallogging.pdf.}

These activities are most visible in China.^{See generally Yong-Shik Lee, Economic Development Through World Trade: A Developing World Perspective 191 (2008) (Professor Lee includes China as a case study of trade and development in developing countries, implicitly recognizing China to be a developing country).} Coined as the “motor of the global timber trade,”^{Carmen Gonzalez, China in Latin America: Law, Economics, and Sustainable Development, 40 Envtl. L. Rep. News & Analysis 10171, 10176 (2010).} China is among the most notorious players in the supply chain. Over the past decade the country has become the leading importer of raw timber products, having trebled its imports since 1997.^{Steve Kemper, Forest Destruction’s Prime Suspect, Environment Yale, Spring 2008, at 4, available at http://www.bio.uu.nl/pbc/course2008/EnvYale-PrimeSuspect[1].pdf.} In fact, researcher scientist William Laurance estimates that half of the world’s timber is imported to China for production, an astonishing figure.^Id. What makes this figure problematic is that much of what China imports is illegal.^{See Chatham House, Illegal Logging Report Cards: China (2010), available at http://www.illegal-logging.info/uploads/CHillegalloggingreportcardchina.pdf; China: Illegal Imports and Exports, GlobalTimber.org.uk (2006), http://www.globaltimber.org.uk/ChinaIllegalImpExp.htm (last visited Mar. 2, 2011).} Wood product manufacturers are largely ignorant of where the raw timber originates.^{The Lacey Act: Closing Down the Illegal Wood Trade, Envtl. Investigation Agency, http://www.eia-global.org/forests_for_the_world/lacey.html [hereinafter EIA Video] (view segment at 3:35).} Moreover, China does not govern the legality of the imported wood, and experts believe that a significant portion of the wood products imported into China come from unsustainable or illegal logging practices.^{Id.; Chatham House, supra note 40 (noting that while China’s government has become involved in making changes, there lacks relevant legislation on the issue).} For example, China is a major net importer of forest products from Indonesia, where activists estimate that up to seventy percent of exported wood derives from illegal activity of some form.^{Indonesia, Illegal‑Logging Info., http://www.illegal-logging.info/approach.php?a_id=85 (last visited Feb. 2, 2011).} Collectively, despite a dramatic decrease over the past decade, academics assert that at least twenty percent of China’s total wood imports derive from illegal sources.^{Chatham House, supra note 40.}

The consequences of this illegal trade are numerous and widespread, extending to environmental, social, political, and economic sectors.

B. Environmental Consequences

From the environmental perspective, advocates stress that illegal logging depletes forests, thereby destroying wildlife habitat and impairing the ability of the forests to function as carbon sinks.^{Juan Robalino & Luis Diego Herrera, Trade and Deforestation: A Literature Review 3 (World Trade Org., Working Paper No. ERSD‑2010‑04, 2009), available at http://www.efdinitiative.org/research/publications/publications-repository/trade-and-deforestation-a-literature-review.} Developing regions of the world such as Central Africa and South America are home to some of the most diversified and sensitive eco-systems in the world. Illegal logging’s contribution to deforestation has a profound effect on the survival of threatened animal and fauna species in these regions.^Id.

Endangered tree species serve as the most obvious example. Malagasy Rosewood, a species unique to Madagascar, is one of the world’s most valuable timber sources and is highly demanded by furniture and musical instrument craftsman.^{Barry Bearack, Shaky Rule in Madagascar Threatens Trees, N.Y. Times, May 24, 2010, http://www.nytimes.com/2010/05/25/world/africa/25madagascar.html?_r=1&th&emc=th.} Citizens of Madagascar who practice illegal logging as their means of survival testify that it has become harder and harder to find a Rosewood tree, sometimes taking an experienced local man two to three days to find one.^Id. As illegal logging continues to undermine sustainable forest management, it is a fair prediction that species like the Malagasy Rosewood will be harvested to extinction, and the forests will suffer irreparable harm.

Not only does illegal logging jeopardize particular tree species, but it increases deforestation and the likelihood of forest fires, both of which impact greenhouse emissions and climate change.^{Directorate-General for the Env’t, Commission Staff Working Document to the Proposal for a Regulation of the European Parliament And of the Council: Impact Assessment, Report on Additional Options to Combat Illegal Logging 24 (2007), available at ec.europa.eu/environment/forests/pdf/impact_assessment.pdf.} Deforestation is responsible for one-fifth of greenhouse gas emissions and is the most significant contributor to climate change.^{Nicholas Stern, The Stern Review on the Economics of Climate Change 30 (2006), available at http://www.hm-treasury.gov.uk/stern_review_report.htm.} In fact, it has become widely recognized that the impact on carbon emissions caused by deforestation exceeds that of all other sources, including transportation.^{Virginia Cram Martos & Frederic Romig, Trade in Energy and Forestry, a Perspective from the United Nations Economic Commission for Europe, World Trade Org. (2010), http://www.wto.org/english/res_e/publications_e/wtr10_forum_e/wtr10_11may10_e.htm.} Moreover, forests themselves serve to sequester carbon, and the abundance of trees serves as a cost-effective way of offsetting carbon that is released into the atmosphere.^{Alda Chan, Illegal Logging in Indonesia, the Environmental, Social, and Economic Costs 5 (2010), available at http://e360.yale.edu/images/digest/BGA-Indonesia-report.pdf.} Thus, deforestation both robs the global community of a cost-effective way to mitigate climate change and also exacerbates the crisis by emitting additional carbon.^Id. Illegal logging practices undermine the attempts to ensure that forests are managed sustainably to maintain their function not only for the benefit of the forest ecosystem, but also for the sustainability of human health on a global scale.

C. Socioeconomic/Human Rights Consequences

Illegal logging not only undermines sustainable environmental policy, but as detailed in the article’s introduction, cuts against the rule of law and is frequently associated with corruption and human rights violations.^{See id.} Corrupt practices in the forest sector involve, among other things, payment of bribes to government officials in exchange for preferential treatment, extortion by officials to artificially legalize illegal operations, and unethical trading of political favors such as the allocation of timber concessions.^{Food & Agric. Org., supra note 30, at 11.} In more extreme cases, illegal logging is tied to activities such as money laundering and armed conflict.^{See, e.g., Global Witness, supra note 8.} Liberia provides only one recent example of this. In the 1990s, rogue militias in Cambodia and the Democratic Republic of Congo likewise received funding primarily through illegal logging revenue.^{Duncan Brack, Chatham House, SDP BP 05/02, Illegal Logging 2 (June 2005), available at http://www.chathamhouse.org/sites/default/files/public/Research/Energy,%20Environment%20and%20Development/bpdb0305.pdf.} Burma and Indonesia share similar stories.^{Global Witness, supra note 8, at 13.} Even where violence is missing, criminal syndicates are using the logging industry as a means of wealth and power to further undermine sound governance.^{Pervaze A. Sheik, Cong. Research Serv., RL3392, Illegal Logging: Background and Issues 5 (2008).} A culture of corruption in developing nations and the practice of illegal logging are largely considered to feed off one another.^{See Food & Agric. Org., supra note 30, at xiii, 14.}

Aside from governance issues, illegal logging is understood to cause human rights violations, which are often overlooked.^{Directorate-General for the Env’t, supra note 49, at 11.} In many poor countries, the property rights of local communities are tenuous or unrecognized, a flaw exploited by logging companies and governments. “In Cambodia, Laos and also China,” says Kerstin Canby, director of the Forest Trade and Finance Program at Forest Trends, “there’s something harsh going on called economic land concessions. The land is technically the government’s, but people are living on it, so when the government sells or gives away this land for a plantation or an agribusiness, it causes human rights issues.”^{Kemper, supra note 38, at 7.} Additionally, the combination of weak government and poverty, contemporaneous in many of the illegal logging hot spots, gives rise to vulnerable populations being taken advantage of economically. In one instance, timber valued at over 100,000 U.S. dollars was taken from a community for less than 100 U.S. dollars’ worth of salt, sugar, and beer in compensation.^Id. Though these consequences are not as visible as violence or environmental devastation, they still pose a serious threat to the welfare of vulnerable populations.

D. Economic Consequences

Finally, the trade and economic implications of illegal logging arguably have the widest reach and are at the forefront of the discussion. The illegal timber trade has a dramatic advantage in the market relative to timber harvested and traded legally.^{Chan, supra note 52, at 10.} A 2004 study published by the American Forests and Paper Association concluded that timber prices were depressed between seven and sixteen percent globally as a result of illegally logged timber.^{Seneca Creek Assocs., LLC, & Wood Res. Int’l, LLC, “Illegal” Logging and Global Wood Markets: The Competitive Impacts on the U.S. Wood Products Industry (Nov. 2004) (prepared for American Forest & Paper Association).} Further, national governments are losing massive sums of tax revenue. The World Bank estimates that developing nations lose more than 15 billion U.S. dollars in revenue and assets annually.^{World Bank, A Revised Forest Strategy for the World Bank Group (2002), available at http://siteresources.worldbank.org/INTFORESTS/214573-1113990657527/20632625/Forest_Strategy_Booklet.pdf.} Additionally, illegal logging correlates to a loss of jobs in the forest sector and retards investment in sustainable forest management practices.^{See Chan, supra note 52, at 8.}

It has become evident that illegal forest practices are economically and environmentally unsustainable, and diminish the cultural and social values of forests and timber producing nations. With the rise of globalization, these consequences have an increasingly widespread reach, and an international response is now gaining momentum.^{See generally EIA Video, supra note 41.}

III. International Responses

Over the past forty years, the international community has become increasingly aware of the consequences of illegal logging.^{See Declaration of the United Nations Conference on the Human Environment (Jun. 16, 1972), available at http://www.unep.org/Documents.Multilingual/Default.asp?documentid=97&articleid=1503.} Recognizing the issue as an important global concern, the G8^{The G8 is an international organization comprised of the heads of state of eight major world economic nation states. The organization hosts meetings referred to as “Summits,” at which a central purpose is to deal with macroeconomic management, international trade, and relations with developing countries. See G8 Information Centre, What is the G8?, Univ. of Toronto (July 15, 2005), http://www.g8.utoronto.ca/what_is_g8.html.} included illegal logging as an element of its 1998–2002 Action Plan.^{See Duncan Brack, Chatham House, EERG IL BP 2010/01, Controlling Illegal Logging: Consumer Country Measures (Jan. 2010), available at http://www.chathamhouse.org/sites/default/files/public/Research/Energy,%20Environment%20and%20Development/bp0110brack.pdf; Ministerial Conference on the Prot. of Forests in Eur., supra note 28.} Following this decision, the World Bank organized the first major international workshop specifically on Forest Law Enforcement in 1999.^{See Debra J. Callister, Corrupt and Illegal Activities in the Forest Sector: Current Understandings and Implications for the World Bank (1999), available at http://siteresources.worldbank.org/EXTFORESTS/Resources/985784-1217874560960/Callister.pdf.} Subsequently, led by the World Bank’s 2001 Ministerial Conference in Indonesia, international organizations began organizing Forest Law Enforcement Governance and Trade (FLEGT) conferences and drafting related Memorandums of Understanding (MOUs).^{Africa Forest Law Enforcement and Governance Ministerial Conference, Int’l Inst. for Sustainable Dev. (2003), http://www.iisd.ca/sd/sdyao/sdvol60num7e.html.} Among the most important of these conferences was the 2002 World Summit on Sustainable Development, held in Johannesburg, South Africa.

At this United Nations led summit, participating members drafted the Johannesburg Plan of Implementation, which recognizes the commitment of individual members to enact domestic legislation to diminish illegal logging worldwide. The plan obligates its signatories to

take immediate action on domestic forest law enforcement and illegal international trade in forest products, including in forest biological resources, with the support of the international community, and provide human and institutional capacity building related to the enforcement of national legislation.^{See Johannesburg Plan of Implementation, available at http://www.un.org/esa/sustdev/documents/WSSD_POI_PD/English/POIChapter4.htm.}

One of the major achievements of the summit was the ability to gain consensus regarding the relationship between nations that produce timber and nations that consume timber. Specifically, members agreed that the market for exotic timber perpetuated by consumer nations undermines efforts of timber-producing nations to eradicate the practice.^Id. Thus, rather than placing the burden squarely on the shoulders of the developing countries producing the timber, it is important for consumer nations to take the responsibility of curbing the market for the product. From this understanding came a wide range of formal and informal partnerships for implementation, bringing together governments, intergovernmental organizations, and non-governmental players such as businesses, NGOs, and community groups.^{Ministerial Conference on the Prot. of Forests in Eur., supra note 28, at 29.} Today, consumer nations and international organizations are beginning to implement new measures to exclude illegal timber products from their markets.

A. Bilateral Agreements

Bilateral agreements are one measure that has been put into practice throughout the world to combat illegal logging practices. Related bilateral agreements can be described as formal agreements or MOUs between nations to ensure that timber harvesting and trade take place in accordance with agreed principles and procedures.^{See generally William Powers & Andrea Wong, World Policy Papers, Fairly Trading the World’s Timber: Lessons on Global Forest Governance and Trade from Europe and Liberia 7 (July 2011), available at http://www.worldpolicy.org/sites/default/files/policy_papers/Fairly%20Trading%20the%20World's%20Timber.pdf (generally describing bilateral agreements in the context of the global timber trade).} Several countries have negotiated bilateral agreements to address the problem of illegal logging, and the United States and its trade partners have led the way in this regard.

The 2007 Trade Promotion Agreement between the United States and Peru serves as an example of an agreement that sets forth a strong and detailed annex on forest sector governance.^{H.R. 3688, 110th Cong. (2010), available at http://ustr.gov/trade-agreements/free-trade-agreements/peru-tpa/final-text.} The agreement contains a number of commitments by Peru to improve forest law enforcement, develop systems to track protected tree species, and to conduct periodic audits of producers and exporters of timber products exported to the United States.^Id. This agreement is among the most detailed to date and complements agreements signed between the United States and additional timber producing nations. Many other nations, including the members of the European Union (E.U.), China, Australia, and Indonesia, have engaged in similar agreements.^{See Vivian H.W. Wang, Comment, Investor Protection or Environmental Protection? “Green” Development Under CAFTA, 32 Colum. J. Envtl. L. 251 (2007).} However, while bilateral agreements serve as an important premise, their effectiveness is limited in a market where wood products have a lengthy and complicated chain of custody. Additionally, as evidenced by the U.S.-Peru agreement, these agreements place the responsibility largely with the timber-producing country, in contrast to the trend of placing the burden on the consumer nation to eliminate importation. Thus, standing alone, bilateral agreements fail to extinguish the consuming countries’ demand for illegally harvested timber.

B. E.U. Forest Law Enforcement, Governance, and Trade Action Plan

Expanding on the concept of bilateral agreements, the European Union took its commitment from Johannesburg the furthest by creating the E.U. Forest Law Enforcement, Governance, and Trade (EU FLEGT) Action Plan in 2005.^{Council Regulation 2173/2005, 2005 O.J. (L 347/1) I (EC), available at http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2005:347:0001:0006:EN:PDF.} Academics have described the EU FLEGT Action Plan as the most ambitious set of measures adopted by any consumer country or bloc to date.^{Brack, supra note 71, at 2.} The main elements of the Action Plan are articulated as:

(1) voluntary partnerships with wood-producing countries badly affected by illegal logging to support and promote governance reform in their timber sectors and; (2) a regulation that sets up a legally binding licensing scheme with partner countries to ensure that only legal timber from these countries is allowed into the EU.^{Chan, supra note 52, at 19.}

The cornerstone of the plan is its system of Voluntary Partnership Agreements (VPAs). VPAs are bilateral agreements between the European Union and tropical wood exporting countries that aim to improve forest governance and guarantee wood imports come from legal sources.^{Jade Saunders, EFI Policy Brief 3, What is a Voluntary Partnership Agreement: The European Union Approach 4–10 (EU FLEGT Facility ed., 2009), available at http://www.efi.int/files/attachments/publications/efi_policy_brief_3_eng_net.pdf.} As the name suggests, entering into these agreements is voluntary for exporting countries. However, once a nation formally commits to a VPA, it becomes a legally binding instrument for both parties (each E.U. nation state and the individual nation that entered into the agreement), limiting trade to legal timber products. To ensure that the timber products are harvested legally, the Action Plan calls for the VPA’s to establish a licensing scheme, whereby timber products from the exporting countries are licensed before they are allowed to enter the market. The Action Plan articulates this process by explaining that engaging in a VPA implies a broad array of positive commitments. For example, one VPA included the following language:

A commitment to ensure that the applicable forest laws are consistent, understandable, enforceable and is supportive of sustainable forest management principles; developing technical and administrative systems to monitor logging operations and identify and track timber from the point of harvest to the market or point of export; build checks and balances into the tracking and licensing system, including the appointment of independent monitors; and develop procedures to license the export of legally harvested timber.^{Communication from the Commission to the Council and the European Parliament FLEGT, proposal for an EU Action plan, COM 251 final, 21 OJ C 268, 7 (2003).}

It is unclear how operators within the European Union will be held to comply with these standards, other than the Action Plan articulating that they must act in accordance with a “due diligence” system.^{Id. at 76.} Under this system E.U. timber importers must show that they have taken considerable steps to minimize the risk of handling timber that has been fraudulently certified. The effectiveness of the due diligence system may soon be visible in practice, as the first official FLEGT VPA was signed on November 20, 2009, between Ghana and the European Union, and became enforceable as of April 2010.^{Voluntary Partnership Agreement Between the European Community and the Republic of Ghana on Forest Law Enforcement, Governance and Trade in Timber Products into the Community, CE/GH/en 1 (2009), available at http://www.euflegt.efi.int/files/attachments/euflegt/ecghanavpaen1doc.pdf.} In 2010, the Democratic Republic of Congo and Cameroon followed suit, signing VPAs with the European Union on May 17, 2010, and June 10, 2010, respectively.^{FLEGT Voluntary Partnership Agreements, European Comm’n, http://ec.europa.eu/environment/forests/flegt.htm (last visited Jan. 20, 2012).} Several other nations are in the process of negotiating their own agreements with the European Union, and Indonesia appears to be on the cusp of joining the nations that have already done so.^{Chan, supra note 52, at 14.}

C. Public Procurement Policies

Another measure being practiced at an increasing level is government public procurement policies. Procurement policies ensure that public purchasers make efforts to purchase only legal timber products. These policies can be developed and implemented more rapidly than most other options, and generally do not require the process of drafting and passing legislation. As of January 2010, nine nations—including several E.U. member states, along with Japan and New Zealand—have adopted timber specific procurement policies.^{Id. at 10.}

The influence that public procurement policies will have on the timber market will likely depend upon the market share that public purchasers account for: the greater the demand is for legally harvested sources, the more likely it is the industry will adapt. Thus, its success relies heavily on widespread adoption throughout the world. To date only limited research has been conducted evaluating the impacts of the procurement policies on the nation states that have them in place, yet the evidence shows an increase in certified timber imports.^{Id. at 8.} Furthermore, public procurement accounts for a substantial amount of the timber market in many nations.^{16 U.S.C. § 3372(a)(B)(2)(i) (1981).} For example, the United Kingdom estimates that about ten percent of its timber imports are purchased through the public sector, and Japan estimates approximately three percent.^{Duncan Brack, Chatham House, EEDP LOG BP 08/02, Controlling Illegal Logging: Using Public Procurement Policy 3 (June 2008), available at http://www.chathamhouse.org/sites/default/files/public/Research/Energy,%20Environment%20and%20Development/bp0608logging.pdf.} Many timber companies are now switching to certified products for all their customers for the sake of supply chain simplicity, indicating that public procurement policies may indeed be influencing industry practice.^Id.

D. Certification

A final measure to counteract illegal logging practice is systems of certification. Certification is incorporated into each of the measures discussed above by incentivizing timber producers and exporting nations to develop systems to assure that timber products are legal. Certified timber products carry labels demonstrating, in a manner verifiable by independent bodies, that they come from forests that meet standards for sustainable forest management and have been produced and traded legally.^{Martos & Romig, supra note 51.} Consumers down the chain may find labels on furniture and wood products, while manufacturers importing wood can verify certification through established chain of custody procedures.^Id. Two independent NGOs have become the dominant and recognizable entities for certifying timber, the Forest Stewardship Council (FSC) and the Programme for Endorsement of Forest Certification (PEFC).^Id. The objective of these organizations can be summarized by the PEFC mission statement, which reads that “[t]hrough the endorsement of national certification systems, PEFC motivates and enables people to sustainably manage their forests and works to provide a market for the products of those forests.”^{Global Forest Coal., Life as Commerce: South Africa Certification 6 (2008), available at http://www.illegal-logging.info/uploads/LIFEASCOMMERCECERTIFICATION.pdf.} More generally, authors Juan Tobalino and Luis Diego Herrara identified a laundry list of goals for certification schemes:

[I]ncrease general consumer awareness of the relationship of the forest industry to the environment; increase consumer acceptance and confidence; modify consumer behavior; modify manufacturer behavior; improve the earth’s environmental quality; increase market share; provide product differentiation; provide an objective audit of the management of the forest assesses; promote sustainable forest management; and demonstrate that forest management provides sustainable economic, ecological, and social benefits.^{Robalino & Herrera, supra note 45, at 27.}

From a global perspective, the use of certification is being endorsed and used with greater frequency. Over the past fifteen years, certification has increased exponentially.^{U.N. Econ. Comm’n for Eur. & Food & Agric. Org., Forest Products Annual Market Review 12 (2009), available at http://www.unece.org/fileadmin/DAM/timber/publications/Final_FPAMR2009.pdf (Chain of Custody Certificates issued worldwide increased by 41% in 2009).} However, like the public procurement policies, this increased use is concentrated in a limited number of countries. In fact, in 2008, seventy percent of the FSC and PEFC certificates were issued in only five countries: the United States, the United Kingdom, Germany, Japan, and Canada.^{Id. at 7.} While this shows that the current prevalence of certification is concentrated, other regions of the world are beginning to embrace certification schemes. For example, in 2009, FSC certification increased by eighty-eight percent in Africa, led by Ghana, Gabon, Cameroon, Democratic Republic of Congo, and South Africa.^{See U.N. Econ. Comm’n for Eur. & Food & Agric. Org., supra note 100, at 7.} Further, the consumer nations in which certification has taken root are likely those nations whose practices will have the greatest global impact, as the practice may very likely have a trickle-down effect to the rest of the supply chain.

IV. The Lacey Act

Against this backdrop, the United States recently responded to the global problem of illegal logging by enacting legislation intended to prohibit the import of illegal timber into its own market.^{Brack, supra note 71, at 2.} With the enactment of the 2008 Farm Bill (the Food, Conservation, and Energy Act of 2008), the Lacey Act—the United States’ oldest conservation law—was amended to combat illegal logging.

For over a century the Lacey Act served as an important tool for the U.S. government in the fight against wildlife crime.^{EIA Video, supra note 41.} The law makes it unlawful to “to import, export, transport, sell, receive, acquire, or purchase any fish or wildlife or plant taken, possessed, transported, or sold in violation of any law, treaty, or regulation of the United States or in violation of any Indian tribal law.”^{16 U.S.C. § 3372(a)(1) (2008).} A second enforcement provision prohibits the making or submitting of any “false record, account, label for, or identification of any wildlife transported or intended to be . . . imported, exported, transported, sold, purchased, or received from any foreign country; or . . . transported in interstate or foreign commerce.”^{Id. § 3372(d).}

Prior to the 2008 amendment, however, the Act did not apply to all international plant species and excluded foreign timber and its associated processed wood products. Rather, it was limited to plants native to the United States and listed in one of the three appendices to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) or protected by a conservation law of an individual U.S. state.^{See U.S. Dep’t of Agric., Lacey Act Amendment: Complete List of Questions and Answers 1 (Feb. 16, 2012), available at http://www.aphis.usda.gov/plant_health/lacey_act/downloads/faq.pdf.} Thus, despite the Act’s intention, the Act failed to address the import of illegally harvested timber.

With the consequences of illegal logging as its primer, the 110th Congress hoped to expand the reach of the Lacey Act with the 2008 amendment.^{David R. Downes et al., International Environmental Law, 43 Int’l L. 837, 852–53 (2009).} In August of 2007, Senator Ron Wyden introduced a bill entitled the “Combat Illegal Logging Act.”^{Press Release, Senator Ron Wyden, Combat Illegal Logging Act Levels the Playing Field for American Business, Protects American Jobs and the Environment (Aug. 1, 2007), available at http://wyden.senate.gov/newsroom/press/release/?id=efd967f0-91d7-45b4-b4ed-1114d118df56.} The legislation was the product of a broad coalition of legislators, the timber industry, and environmental advocates.^Id. The bill sought to expand the Lacey Act by prohibiting the importation, sale, or trade, of illegally harvested wood and wood products.^Id. The bill complemented similar legislation that the House introduced. The “Legal Timber Protection Act,” H.R. 1497, served to promote more or less the same goals as the bill.^Id. These bills were incorporated into the 2008 Farm Bill, which, when passed, dramatically amended and strengthened the Lacey Act.^{16 U.S.C. § 3372(a)(i1) (2008); see also Legislation Enacted to Curb Illegal Logging, World Wildlife Fund, http://wwf.worldwildlife.org/site/PageServer?pagename=can_results_illegal_logging_imports (last visited Feb. 26, 2011).}

A. Impacts of the 2008 Amendments

The amendments to the Lacey Act extend the statute’s reach to encompass products, such as timber, that are illegally harvested in the country of origin and brought into the United States.^{16 U.S.C. § 3372 (2008).} This includes both raw timber as well as value-added manufactured products, such as furniture and musical instruments. The amendments further include products that are manufactured and imported from countries other than the country where the illegal harvesting occurred.^Id. To effectuate its purpose, the amendment is written to (1) prohibit trade in illegally sourced plants or corresponding products; (2) require importers in the United States to submit a declaration to customs to prove they took due care when importing plants; and (3) establish criminal sanctions for violations of the preceding requirements.^{Id.; 16 U.S.C. § 3373 (2008). See generally EIA Video, supra note 41.} The amended Act requires importers to submit a declaration detailing the scientific name of the plant, the value of the importation, the quantity of the plant, and the name of the country from which the plant was taken.^{16 U.S.C. § 3372 (2008).} In the United States, anyone who knowingly imports, exports, transports, sells, or purchases illegally harvested plants or plant products, including timber, may be prosecuted.^{Id. § 3373.}

The 2008 amendment empowers the Lacey Act with a broader, more flexible definition of plant and wildlife species that are banned from importation.^{Id. § 3372.} In relation to timber, the Act prohibits the import of any wood or wood product harvested or involved in an underlying violation during any part of its travel through the supply chain.^{Id.; see also R. Juge Gregg, Amendment to the U.S. Lacey Act: Implications for Exporters of Thailand’s Forest Products 6 (2009), available at http://www.forest-trends.org/documents/files/doc_2386.pdf.} This includes not only obvious violations, such as timber harvested from within a protected national park, but less obvious violations as well.^{See generally EIA Video, supra note 41.} The Act also broadly incorporates violations of laws that generally protect plants, regulate the theft of plants, the taking of plants from officially protected areas, and the taking of plants without or contrary to required authorization.^{Gregg, supra note 120, at 5.} Less obvious examples include the transportation of timber at night in violation of a curfew statute, failure to pay appropriate royalties, taxes, or stumpage fees, or violations of laws that govern the trans-national shipment of plants.^Id.

To insure that importers are purchasing wood that has been harvested and shipped to the United States in compliance with this statue the Act requires the importer to file a declaration with customs.^{16 U.S.C. § 3372(f)(1) (2008).} The declaration must include the scientific species name of the tree from which the wood originated, the volume being imported, the value of the product, and the country in which it was harvested.^Id. The declaration provides the U.S. government with the information necessary to enforce the law. Most importantly, the declaration requires a showing of “due care.”^Id.

B. “Due Care”

The definition of due care as it relates to the timber industry is unclear.^{See Rachel Saltzman, Establishing a “Due Care” Standard Under the Lackey Act Amendments of 2008, 109 Mich. L. Rev. First Impressions 1 (2010).} The due care standard was first incorporated into the Lacey Act language when it was amended in 1981.^{Pub. L. No. 97-79, 95 Stat. 1074 (1981).} However, courts have rarely articulated the standard. The few courts that have addressed the standard have created an interpretation that is arguably inapplicable to the timber industry.^{See Saltzman, supra note 127 (arguing that because of unique industry custom, complexity of foreign laws and breadth of illegal logging hotspots, and a complex supply chain, existing precedent of due care as it related to other industries will not serve applicable to Lacey Act disputes regarding the timber industry).} The Department of Justice (DOJ) maintains that the definition of due care will be assessed on a case by case basis, taking into account the knowledge and experience of the purchaser, as well as the context of the transaction.^{Ellinor Colbourn, U.S. Dep’t of Justice, Lacey Act Amendments of 2008 (May 2009), http://www.forest-trends.org/~foresttr/documents/files/doc_696.pdf.} Thus, timber companies that operate on a large-scale level will be held more accountable than a smaller scale general contractor purchasing a door for a luxury home.

The DOJ has discussed a number of common sense red flags that it will take into consideration when making such an appraisal: (1) offers to sell timber products at prices considerably below the going market rate; (2) offers to sell timber products for cash or offers of a discount for products lacking required paperwork; (3) facially invalid paperwork; and (4) evasive answers to questions regarding a product’s origins.^Id. Furthermore, in other non-timber related contexts, the Ninth Circuit, which has handled vastly more Lacey Act cases than any other jurisdiction, has issued a generalized definition of due care as the “degree of care which a reasonably prudent person would exercise under the same or similar circumstances.”^Id. Thus, the question courts will face is to what extent a “reasonably prudent” corporation should investigate the source of the wood products it imports.

C. The Lacey Act as a Powerful Tool

The Lacey Act sets itself apart from other international efforts by its ability to prosecute and enforce timber trade regulations by way of powerful penalties.^{See generally EIA Video, supra note 41 (commenting that by way of the Lacey Act, the United States is the first country in the world to ban the import, export, and sale of illegal wood products).} Anyone found simply handling illegal timber can expect to have their products confiscated.^{Colbourn, supra note 130, at 12.} If prosecutors are able to prove specific intent, or that by “due care” the violator should have known the product was harvested illegally, the violator can face felony charges that carry fines up to $250,000 and imprisonment of up to five years.^{Id. See generally Downes, supra note 108, at 853.} In between these two extremes, the Act equips the government with the authority to pursue a sliding scale of penalties based primarily on the importers’ knowledge of the crime being committed.^{Colbourn, supra note 130, at 12; see also Gregg, supra note 120, at 6.} These sanctions provide new deterrents for corporations involved in the international timber trade.

While the amended law provides the United States with a greater arsenal to combat illegal logging, it remains to be seen how effective the amendments can be. To date, commentators representing various interests have largely praised the amendment.^{Michael L. Brown, Limiting Corrupt Incentives in a Global REDD Regime, 37 Ecology L.Q, 237, 258 (2010).} The World Wildlife Fund announced that the amendment was a “huge victory for conservation.”^{EIA Video, supra note 41.} The Environmental Investigation Agency believes the amendments could promote a “sea change for how forests are governed around the world.”^<i>Id.</i> And timber industry executives have praised the amendment for sending a message about the United States’ stance on environmental protection and promotion of sustainable forest management.^Id. Yet, the same executives beg the question of whether or not the “teeth” the bill provides are actually capable of biting anything out of the problem.^Id.

At present, the answer to that question can only be speculated on, as the DOJ is just completing a multi-phased implementation of the law’s requirements.^{Brown, supra note 137.} However, the DOJ is in the midst of its first investigation.^{Derald J. Hay, Fox Rothschild, LLP, Federal Agents Raid Gibson Guitar Corporation in an Enforcement Action Under the Lacey Act: Where does that Leave “Due Care?” (Mar. 2010), available at http://www.foxrothschild.com/uploadedFiles/newspublications/hay_enviroFederalAgentsRaidGibsonGuitar_030110.pdf.} In late 2009, the Fish and Wildlife Service raided the offices of the Gibson Guitar Company, and in August of 2011, U.S. Marshalls raided Gibson’s facilities twice more.^{Craig Havighurst, Why Gibson Guitar Was Raided by the Justice Department, NPR The Record (Aug. 31, 2011, 4:00 pm), http://www.npr.org/blogs/therecord/2011/08/31/140090116/why-gibson-guitar-was-raided-by-the-justice-department; see also Henry Juskiewicz, Repeal the Lacey Act? Hell No, Make It Stronger, Huff Post Green (Nov. 21, 2011, 1:57 pm), http://www.huffingtonpost.com/henry-juszkiewicz/gibson-guitars-lacey-act_b_1071770.html.} The DOJ directed the first raid because it believed that the company has been importing illegally harvested Malagasy Rosewood from Madagascar, via Germany, for use in its instrument production.^{See Sean Michaels, Gibson Guitars Raided for Alleged Use of Smuggled Wood, Guardian, Nov. 20, 2009, http://www.guardian.co.uk/music/2009/nov/20/gibson-guitars-raided.} The DOJ’s more recent raids were directed because of a tip that the company imported illegal timber from India.^{Havighurst, supra note 144.} To date, little information has been revealed as to the current status of either investigation. Those concerned remained acutely attentive to what could be the first interpretation of “due care” in the timber context and whether or not the Lacey Act’s provisions have the teeth that many hope it does. Assuming that the import of illegally logged timber is pervasive in the United States, while the Gibson Guitar raid has put the industry on alert,^{See Myles Gilmer, Lacey Act’s Ramifications Are Being Felt, Woodshop News (Oct. 18, 2010), http://www.woodshopnews.com/columns-blogs/pro-shop/499341-lacey-acts-ramifications-are-being-felt.} the current dormant status of the new authority suggests that the Act is not serving as a realistic enforcement mechanism.

V. A Pressing Need for Unified Global Governance

As this article has discussed, over the past forty years the global community has become acutely aware of illegal logging and its destructive environmental, social, political, and economic consequences. These consequences showcase the intrinsic link between the environment and economic development, and how illegal logging and its associated timber trade is an issue of global importance. International organizations, from the United Nations to the World Trade Organization, along with the European Union, the United States, and numerous other independent nations have responded by employing various measures, all with the common goal of eliminating illegal logging from the global marketplace. While these individual efforts are making headway, the progress is slow and fragmented.^{See U.N. Econ. Comm’n for Eur., UNECE Works for Your Forests 2 (Apr. 2007), available at http://www.unece.org/fileadmin/DAM/highlights/what_ECE_does/English/0720278_UNECE_FORESTS.pdf.} As the market becomes increasingly globalized, there is a pressing need for the international community to unify governance measures focused on extinguishing the market for illegally harvested timber products.

Initially, efforts should focus on creating a universal understanding as to what precisely constitutes illegal logging. Once agreement is reached, the roles and responsibilities of different actors can be assigned. Collectively, the international community must increasingly collaborate on research and development efforts to better assess the issue, and work to proactively attack the underlying root causes that incentivize its market.

A. Defining Illegal Logging

First, disagreement on what exactly accounts for illegal logging is a problem. Put simply, illegal logging is the harvesting of timber that is not allowed to be cut. However, world players have different interpretations on what timber should not be harvested and the proper procedures that should be conducted through the chain of custody. While the World Trade Organization may not have the ability to enforce environmental or trade laws on a global scale, a unified governing system should be put in place to provide a common understanding of what constitutes illegal logging. The definition should be practical, enforceable, and should cover environmental, social, political, and economic issues. In addition, the definition should work to spell out the responsibilities of those involved.

An initial step towards this end is for consumer nations to unify and cooperate in taking measures that share the burden of tackling the problem of illegal logging. While producing countries should not be relieved of all accountability, it must be understood that the market created by the consumer nations undermines the efforts taken by local governments in the world’s largest problem spots.^{See generally EIA Video, supra note 41.}

A good place to start is to encourage China to join the efforts of the consumption centric European and North American nations. As previously mentioned, China has been labeled the “motor of the global timber trade,” as it serves as a world leader in importing timber and exporting value added wood products.^{Martos & Romig, supra note 51.} Although China has not been entirely absent from the global discussion, having begun preliminary discussions to sign a VPA with the European Union under the European Union’s FLEGT Action Plan, China has all the while become a leading contributor to the illegal timber trade.^{Ana Lucia Jaramillio et al., Stemming Illegal Logging and Timber Trade: An Overview of the European Union FLEGT Action Plan 48 (July 11, 2010), available at http://www.envirosecurity.org/pathfinder/FLEGT_web.pdf; Gonzalez, supra note 37.} Furthermore, China’s laws currently make no distinction between legal and illegal logging for import purposes.^{Kemper, supra note 38, at 7.} While the Lacey Act theoretically forces China to either come up with such laws or lose twenty-two percent of their wood product market, enforcing measures of due care and due diligence cannot realistically impose a duty on importers to completely stop importing from China.^{Gregg, supra note 120, at 1.} The immediate economic consequences would be devastating. Thus, so long as China provides a market for illegal logging and timber trade, the international community’s efforts to eliminate its practice will be stifled.

Consumer nations that have implemented systems to prevent the import of illegal timber should collaborate to create unified measures of licensing and certification schemes that provide the industry with a system that is relatively straightforward and easy to comply with. “Due diligence,” under the EU FLEGT Action Plan, and “due care,” under the Lacey Act, should be interpreted to have the same definition so as to allow the international timber industry an opportunity to comply with one universal standard.

B. The Need for Collaborative Processes

Second, the various involved parties need to coordinate and engage in collaborative processes of research and monitoring to further understand the market of illegally logged timber. Currently, there are many gaps in the available research. These gaps are both quantitative and qualitative, and hinder the understanding of the size of illegal logging as well as the effectiveness of the measures currently in place.^{See Ministerial Conference on the Prot. of Forests in Eur., supra note 28, at 56.} Adding to this problem, differing actors have often relied on each other’s figures without citing the original studies or methodology of research, leaving researchers in the dark as to their current accuracy or credibility.^{Dieter, supra note 33, at 601.} Further, as exemplified by China, the wood products trade, particularly at the value-added level in items such as furniture and musical instruments, often goes through third or fourth party countries before arriving in the hands of the consumer. This tracking problem could be solved through by employing comprehensive methods that fully trace the trade of illegally harvested timber. Whatever efforts are employed, it is important that the parties collect data to monitor and evaluate the effectiveness of the measures in place, and share their results shared throughout the global community.

C. Procurement Schemes

Third, encouraging the continued development of public procurement schemes and universally recognized labels of certification will further aid unified awareness of, and proactive action against, illegal logging. While implementation issues such as non-discriminatory trade regulations will need to be addressed, governments can implement public procurement policies with relative ease, and their impact seemingly reaches the broader consumer market. As many timber consuming nations are democratic in nature with representative, elected officials, the government is spending its citizen’s money, and it thus should exemplify the responsible standard of purchasing certified, legally harvested timber products. These policies need to be actively encouraged; as the demand for certified products increases, so will the incentive for timber companies to switch their entire product lines over to certified goods.

Certification and licensing schemes are an invaluable component to any of the measures being given serious attention, and the global community should make a conscious effort to ensure their viability and improve recognition of these schemes. International organizations need to continue to educate both consumer and producer nations of the FSC and PEFC, which are now operating in over seventy-five countries worldwide.^{Lucia Jaramillio et al., supra note 151, at 33.} The more widespread these systems become, the less likely they are to create trade discrimination disputes and the more likely they will serve to enhance the market for legally harvested and traded timber products. The DOJ and the U.S. court system should consider requiring certification under the due care standard in order to eliminate the intrinsic ambiguity and inequity that results from the current case by case appraisal.

D. Combat Root Causes

Finally, the global community needs to take proactive measures to discover and, when possible, combat the root causes of illegal logging and its timber trade. While criminalizing the trade of unlawfully harvested timber through measures such as the European Union’s FLEGT Action Plan and the United States’ Lacey Act provide important legal tools, prohibition will only go so far to discourage an activity, and will likely move it further underground.

International organizations should exert efforts to understand the root causes that incentivize the practice of illegal logging and seek to curb the activity from the bottom up. Poverty is likely the most important motivating cause for the illegal actions of citizens in timber producing countries.^{See Directorate-General for the Env’t, supra note 49, at 28; see also News Release: Illegal Logging in Peru Blamed on Bureaucracy, Poverty, Int’l Tropical Timber Org. (July 7, 2003), http://www.itto.int/news_releases/id=2180000.} Short-term livelihood will always trump future sustainability when individuals are forced to make a decision between the two. Weak government and law enforcement capacities may further incentivize corporations and individual actors to engage in illegal logging. While efforts to address the problem at the point of sale between export and import nations should continue, the international community must begin to discuss means of proactively addressing the deeper issues that serve as the root causes of illegal activities in the forest sector.

As illustrated, the consequences of the illegal timber trade are widespread, exacerbating our global environment, and stifling economic, social, and political progress. Internationally, organizations such as the G8, World Trade Organization, United Nations, along with countless NGOs and private organizations, are taking measures to combat this trade and its degrading impacts. The United States has taken a stand as the first nation state to criminalize the import of illegal timber and processed products by way of the Lacey Act. Whether or not this law will serve its function is unclear, as we await an interpretation of what due care means, and whether or not the Act can coexist with the immensely complex global market.

VI. Conclusion

“For every complex problem there is an answer that is clear, simple, and wrong.”^{The quote has largely been credited to H.L. Mencken, though the source is unknown. See, e.g., Terry Harris, A Complex Solution for the Sliver Valley, Kootenai Entl. Alliance Blog (Aug. 9, 2010, 7:45 am), http://kealliance.org/2010/08/09/a-complex-solution-for-the-silver-valley/.} Illegal logging is a complex problem, involving a complex web of actors and causing complex consequences. The Lacey Act will not suffice on its own. Its reach does not extend further than the harbors and warehouses of the United States. However, with approximately forty percent of China’s wood products being exported to the United States,^{Kemper, supra note 38, at 5.} the Act is a great place to start. The world needs to come together to eradicate the market for illegal timber, and the Lacey Act needs to be part of a cohesive framework that provides the industry with a workable set of standards. Further discourse is imperative to bring the international community to a common understanding of the problem, create a shared pool of data and monitoring evaluations, engage in unified licensing and certification schemes, and combat the practice at its roots. To accomplish these goals, it is critical for the nation states of the world to engage in more unified governance that will extinguish the market for illegally harvested timber at a global level.

The Kvichak and Nushagak river drainages of Bristol Bay in southwest Alaska are major contributors to the world’s largest commercial salmon fishery, offer world-class sport fishing and hunting, and provide important subsistence foods for local residents. For forty-five years, the state and federal governments have sought to balance conservation and development in these drainages, as the land ownership, once nearly all federal, evolved into a fragmented pattern of state, federal and Native ownership, where fish and wildlife ignore such distinctions. Now, the potential that metallic sulfide deposits on state land in these drainages may be mined has prompted tribes, commercial fishing organizations, and many others to petition the U.S. Environmental Protection Agency (EPA) to commence a public process under Section 404(c) of the Clean Water Act to determine whether to restrict or prohibit the discharge of dredged or fill material, including mine wastes, into waters of the United States, including wetlands, before permits to do so are sought. In response, EPA has begun a scientific assessment of the watersheds to determine whether to invoke Section 404(c). This article demonstrates that EPA’s potential use of Section 404(c) is consistent with most of the history of state and federal efforts to balance conservation and development in these drainages, offers a perspective on that history, and concludes that use of Section 404(c) is one of the few opportunities in this history for government to conserve these drainages across property boundaries.

Introduction

The Kvichak and Nushagak river drainages of southwest Alaska produce some of the largest salmon runs in the world.^{The Bristol Bay drainages of southwest Alaska produce the largest sockeye salmon commercial fishery in the world, and historically the Kvichak (pronounced KWEE-jak) River watershed has been the largest producer of sockeye salmon. See Lowell F. Fair, Alaska Dep’t of Fish & Game, 10 Alaska Fishery Res. Bull. No. 95, Critical Elements of Kvichak River Sockeye Salmon Management (2003), available at http://www.adfg.alaska.gov/static/home/library/PDFs/afrb/fairv10n2.pdf. The Nushagak (pronounced NUSH-a-gak) River watershed is the largest producer of the other four (Chinook, chum, coho, and pink) Pacific salmon species in the Bristol Bay drainages. R. Eric Minard, Alaska Dep’t of Fish & Game, 1 Fishery Data Series No. 15, Effort and Catch Statistics for the Chinook Salmon (Oncorhynchus tshawytscha) Sport Fishery in the Lower Nushagak River, 1986, (Oct. 1987), available at http://www.sf.adfg.state.ak.us/FedAidPDFs/fds-015.pdf.} The state and federal governments have long recognized that the fisheries these drainages produce are important nationally, internationally, and locally. Since 1967, both levels of government, and others, have pursued many efforts to conserve fish habitat in these drainages. Now, the potential that massive, low-grade, metallic sulfide deposits in the drainages may be mined for copper, gold, and other metals has raised the question of whether such mines can occur without harm to fish habitat and these fisheries. Metallic sulfide mines and their wastes create risks of acid mine drainage, which can dissolve metals and make waters containing them toxic to fish and aquatic life.^{Office of Solid Waste, U.S. Envtl. Prot. Agency, EPA No. 530-R-94-036, Technical Document: Acid Mine Drainage Prediction 2, 4 (Dec. 1994) [hereinafter EPA, Acid Mine Drainage Prediction], available at http://www.epa.gov/wastes/nonhaz/industrial/special/mining/techdocs/amd.pdf. See generally Carol Ann Woody, Copper: Effects on Freshwater Food Chains and Salmon: A Review (2007), available at http://fish4thefuture.com/pdfs/Summary%20WoodyReview%20-%20Copper%20Effects%20to%20Fish%20092107.pdf.} After closure, such mines and their tailing facilities can require perpetual monitoring and care.^{EPA, Acid Mine Drainage Prediction, supra note 2, at 2.}

One of the deposits is the Pebble deposit, on state land, at the hydrological divide between Upper Talarik Creek, in the Kvichak River drainage, and Koktuli River, in the Nushagak River drainage.^{See infra Maps 1–6, pp. 227, 238, 250, 251, 256, 262.} The Pebble Limited Partnership^{Press Release, Northern Dynasty Minerals, Ltd. (NDM), Northern Dynasty & Anglo American Establish 50:50 Partnership to Advance Pebble Project to Production (July 31, 2007), available at http://www.northerndynastyminerals.com/ndm/NewsReleases.asp?ReportID=336841&_Type=News-Releases&_Title=Northern-Dynasty-Anglo-American-Establish-5050-Partnership-To-Advance-Pebbl (Anglo American PLC entered into a staged-investment agreement with Northern Dynasty Minerals, Ltd. that gives Anglo American rights to up to fifty percent of the Pebble Mine project).} (PLP) asserts that it expects to apply in late 2012 or 2013 for government permits to develop Pebble mine,^{See Frequently Asked Questions, Pebble Ltd. P’ship, http://www.pebblepartnership.com/project/faqs (last visited Dec. 30, 2011).} at mining claims staked on the deposit. The permits would include those issued by the U.S. Army Corps of Engineers (Corps) under Section 404 of the Clean Water Act^{33 U.S.C. § 1344 (2010).} to allow discharge of dredged or fill material into navigable waters, to construct dams, tailings facilities, pipelines, roads and other facilities of the mine.^{See, e.g., Northern Dynasty Mines, Inc., Application for Groundwater Right: Unnamed Tributary (NK1.190) North Fork Koktuli River, Coastal Questionnaire and Certification Statement (Sept. 21, 2006), available at http://dnr.alaska.gov/mlw/mining/largemine/pebble/water-right-apps/2006/gwnfkfinal.pdf (PDF pages 88–97); see also Federal, State and Local Permits, Pebble Ltd. P’Ship, http://www.pebblepartnership.com/content/federal-state-and-local-permits (last visited Jan. 11, 2012).} If developed, Pebble mine could be one of the largest open pit and underground mines in North America, and could leave as much as 10 billion tons of mine wastes on public lands forever.^{See Prospecting the Future, Pebble Ltd. P’Ship, http://www.pebblepartnership.com/project (last visited Dec. 30, 2011); Frequently Asked Questions, Pebble Ltd. P’Ship, http://www.pebblepartnership.com/project/faqs (last visited Dec. 30, 2011).} Several of the deposits in the vicinity lie to the south-southwest of the Pebble deposit and drain southward into Iliamna Lake.^{See Pebble Exploration Lands, Northern Dynasty Minerals, http://www.northerndynastyminerals.com/ndm/PD_MM.asp (last visited Mar. 23, 2012).}

On February 7, 2011, the U.S. Environmental Protection Agency (EPA) announced that it would undertake a scientific assessment of the Kvichak and Nushagak watersheds to better understand how large-scale mining of metallic sulfide deposits may affect water quality and the salmon fisheries of Bristol Bay and its drainages. EPA describes these fisheries as “an extraordinary salmon resource for the United States.”^{See Press Release, U.S. Envtl. Prot. Agency, EPA Plans Scientific Assessment of Bristol Bay Watershed (Feb. 7, 2011) available at http://yosemite.epa.gov/opa/admpress.nsf/0/8C1E5DD5D170AD99852578300067D3B3.}

EPA is doing so in response to requests from nine federally recognized tribes, numerous commercial and sport fishing organizations, and others, that it commence a public process under Section 404(c) of the Clean Water Act to address potential mining of metallic sulfide deposits in these watersheds—before applications for permits are filed with the Corps. Section 404(c) allows EPA to restrict or prohibit the discharge of dredged or fill material, including mine wastes, into waters of the United States, including tributaries and wetlands, whenever EPA determines, after notice and opportunity for hearing, that such discharges would have an “unacceptable adverse effect”^{“Unacceptable adverse effect” is defined as:
impact on an aquatic or wetland ecosystem which is likely to result in significant degradation of municipal water supplies (including surface or ground water) or significant loss of or damage to fisheries, shell fishing, or wildlife habitat or recreation areas. In evaluating the unacceptability of such impacts, consideration should be given to the relevant portions of the section 404(b)(1) guidelines.
40 C.F.R. § 231.2(e) (2011) (emphasis added). The purposes of the 404(b)(1) Guidelines are “to restore and maintain the chemical, physical, and biological integrity of waters of the United States through the control of discharges of dredged or fill material,” and to implement congressional policies expressed in the Clean Water Act. The Guidelines establish a rebuttable presumption against allowing any discharge unless it can be demonstrated that the discharge will not have an unacceptable adverse impact “either individually or in combination with known and/or probable impacts of other activities affecting the ecosystems of concern.” The Guidelines declare:
From a national perspective, the degradation or destruction of special aquatic sites, such as filling operations in wetlands, is considered to be among the most severe environmental impacts covered by these Guidelines. The guiding principle should be that degradation or destruction of special sites [such as wetlands] may represent an irreversible loss of valuable aquatic resources.
Id. § 230.1. The Guidelines address direct, cumulative, and secondary effects. Id. § 230.11. Secondary effects are those associated with a discharge, but do not result from actual placement of the material, and must be considered prior to agency action under Section 404. Id. § 230.11(h)(1).} on fisheries, wildlife, municipal water supplies or recreational areas. EPA may do so before a permit application is submitted to the Corps.^{Id. § 231.1(a). In the preamble to the regulations, EPA explained:
[1] Such an approach will facilitate planning by developers and industry. It will eliminate frustrating situations in which someone spends time and money developing a project for an inappropriate site and learns at an advanced stage that he must start over. [2] In addition, advance prohibition will facilitate comprehensive rather than piecemeal protection of wetlands.
. . . One commenter said that pre-permit actions were inappropriate because it would be impractical to identify unacceptable adverse effects before a specific discharge is proposed. At least in theory, there are instances where a site may be so sensitive and valuable that it is possible to say that any filling of more than X acres will have unacceptable adverse effects.
. . . .
. . . EPA recognizes that where possible it is much more preferable to exercise this [Section 404(c)] authority before the Corps or state has issued a permit . . . .
Denial or Restriction of Disposal Sites; Section 404(c) Procedures, 44 Fed. Reg. 58,076, 58,077 (Oct. 9, 1979) (first and third emphases added, second emphasis in original). Thus, EPA expressed its preference for using Section 404(c) prior to permit applications and in a comprehensive manner, whenever appropriate to protect fisheries, wildlife, recreation or municipal water supplies. Implicitly at least, EPA recognized its responsibility to do so whenever appropriate.}

This article is in two parts, followed by a conclusion. Part I is factual. It puts EPA’s watershed assessment and potential use of Section 404(c) in the historical context of forty-five years of federal and state efforts regarding land use planning, conservation, and development in the Kvichak and Nushagak drainages from 1967 to the present. During most of this period, both levels of government sought to protect uplands necessary for salmon, resident fish, fisheries, and game, as the land ownership pattern in these drainages evolved from nearly total federal ownership in the 1960s to a fragmented pattern by the 1980s, an evolution brought by land selections and conveyances made under the Alaska Statehood Act of 1958,^{Alaska Statehood Act of 1958, Pub. L. No. 85-508, 72 Stat. 339.} the Alaska Native Claims Settlement Act (ANSCA) of 1971,^{Alaska Native Claims Settlement Act of 1971, Pub. L. No. 92-203, 85 Stat. 688 (codified at 43 U.S.C. §§ 1601–1629h (2010)).} and the designation of federal conservation units by the Alaska National Interest Lands Conservation Act (ANILCA) of 1980.^{Alaska National Interest Lands Conservation Act of 1980, Pub. L. 96-487, 94 Stat. 2371.} Historical context demonstrates that EPA’s watershed assessment and potential use of Section 404(c) are consistent with a long history of state and federal efforts to conserve uplands necessary to conserve fish. Moreover, in the event that EPA makes a Section 404(c) determination that restricts or prohibits activities necessary to develop such mines, then this historical context may help to make such a determination more stable under future federal administrations which may urge to modify or reverse the Section 404(c) determination.

Part II is interpretive. It offers a perspective on the history. Briefly, as the pattern of land ownership evolved and fragmented, both the state and federal governments eventually sought cooperative land use planning across property boundaries, and ANILCA established a cooperative planning process. But it failed in the 1980s. At that time, both governments put their different interests in controlling decision-making on their lands ahead of the fish and wildlife. The state and federal governments did so despite the fact that their differences were divorced from any necessary decision related to a major project that could have significant effects on fish, wildlife, or the public uses of them. And so, the habitat has remained productive simply because it has been undeveloped, and its natural processes have flourished without hindrance. Now, the prospect of Pebble and similar mines has brought the state government, in the case of its current 2005 Bristol Bay Area Plan for state lands, and the federal government, in the case of EPA’s ongoing watershed assessment and potential use of Section 404(c), closer to making practical decisions.

Because Section 404(c) applies to all navigable waters, including tributaries and wetlands, regardless of land ownership, Section 404(c) is well-tailored to address fragmented property ownership and fish and wildlife, which do not recognize property boundaries. Moreover, the public process of Section 404(c), and EPA’s potential use of it, afford all interested parties the same opportunity to re-examine differences arising from ownership, to commit to what is necessary to balance conservation and development in the Kvichak and Nushagak drainages in the context of fragmented ownership, and to be decisive about practical questions such as whether to permit, prohibit, or restrict mining of metallic sulfide deposits in these drainages, regardless of land ownership. However, Section 404(c) is far short of comprehensive, cooperative land use planning. Therefore, this article also identifies the reasons why cooperative land use planning may be more likely to succeed now than in the past.

I. History of Federal and State Conservation Efforts Involving the Kvichak and Nushagak Drainages

Alaska is comprised of about 375 million acres. If it could be placed atop the contiguous forty-eight states, Alaska could be positioned to touch simultaneously the states of Minnesota, Texas, Florida, and California. The city of Anchorage would be roughly where St. Louis was in the early 1800s, each with no connected roads to the West.

The history of federal and state efforts to address land use in the Kvichak and Nushagak drainages, which contain several million acres, is inseparable from the history of Alaska as a state, including its people, its natural resources, and laws that affect all of them. The Alaska Statehood Act entitles the State to select 103,350,000 acres of federal land in Alaska; that is, (a) for purposes of community development and expansion, Section 6(a) of the Act entitles the State to select 400,000 acres of vacant, unappropriated land from national forests, and 400,000 acres of vacant, unappropriated and unreserved land from other federal lands; and (b) as a general land grant, Section 6(b) entitles the State to select 102,550,000 acres of vacant, unappropriated and unreserved federal land.^{Alaska Statehood Act of 1958, Pub. L. No. 85-508, 72 Stat. 339.} However, throughout the 1960s, aboriginal land claims of Alaska Natives remained unresolved. As a result, in 1966, the Secretary of the Interior directed the Bureau of Land Management (BLM) to “freeze” processing state selections until Native land claims were resolved.^{See H.R. Rep. No. 96-97, pt. II, at 164 (1979).} In 1968, the discovery of oil on the North Slope of Alaska, and the need for a Trans-Alaska Pipeline to move that oil to market, added pressure to resolve these claims.^{See Robert D. Arnold, Alaska Native Land Claims 139–40 (1978).} To do so, Congress enacted the Alaska Native Claims Settlement Act of 1971 (ANCSA).^{ANCSA, Pub. L. No. 92-203, 85 Stat. 688 (codified at 43 U.S.C. §§ 1601–1629h (2010)).} It entitled Native village and regional corporations to select about 44 million acres of federal land,^{H.R. Rep. No. 96-97, pt. II, at 164 (1979).} exempted the federal lands in the Trans-Alaska Pipeline corridor from state selection under the Statehood Act and from Native selection under ANCSA,^{ANCSA §17(c) (codified at 43 U.S.C §1616(c) (2010)).} and required the Secretary to withdraw 80 million acres of federal lands in Alaska from all forms of appropriation under the public land laws to recommend to Congress that it establish federal conservation system units in Alaska.^{ANCSA §17(d)(2) (codified at 43 U.S.C §1616(d)(2) (2010)).} Congress did so in the Alaska National Interest Lands Conservation Act of 1980 (ANILCA).^{ANILCA, Pub. L. 96-487, 94 Stat. 2371.}

These statutes have shaped the forty-five-year history of efforts to balance conservation and development in the Kvichak and Nushagak drainages, and deal with land ownership patterns there, as the State eventually acquired title to most of these drainages, and Native corporations acquired much of the riparian and littoral lands. This history unfolds in three periods: (1) 1967 to 1971, (2) 1971 to 2005, and (3) 2005 to the present. Most important, fish shaped the history and land ownership in these drainages.

A. From 1967 to 1971, when the Land in the Bristol Bay Drainages Was Federally Owned, the Alaska State Government Supported Federal Efforts to Manage Uplands to Protect Fish

In the early years after statehood in 1959, nearly all land in Alaska was federal, and BLM managed the vast majority, including the Kvichak and Nushagak drainages. On March 7, 1967, BLM proposed to classify approximately 6.5 million acres of federal land in the Iliamna Lake area for retention in federal ownership and multiple use management under the Classification and Multiple Use Act of 1964.^{Notice, Proposed Classification of Pub. Lands in Iliamna-Cook Inlet Area for Multiple Use Mgmt., 32 Fed. Reg. 3838 (Mar. 8, 1967). Prior to the Federal Land Policy and Management Act of 1976, BLM managed land under the Classification and Multiple Use Act, Pub. L. 88-607, 78 Stat. 986 (1964) (codified at 43 U.S.C. § 1411–18 (repealed)). Section 5 defined “multiple use” as:
the management of the various surface and subsurface resources so that they are utilized in the combination that will best meet the present and future needs of the American people; the most judicious use of the land for some or all of these resources or related services over areas large enough to provide sufficient latitude for periodic adjustments in use to conform to changing needs and conditions; the use of some land for less than all of the resources; and harmonious and coordinated management of the various resources, each with the other, without impairment of the productivity of the land, with consideration being given to the relative values of the various resources, and not necessarily the combination of uses that will give the greatest dollar return or the greatest unit output.} BLM held numerous public meetings, culminating in a public hearing in King Salmon, Alaska. According to BLM, the bulk of the comments were favorable, or offered constructive criticisms incorporated into the final Notice of Classification of Public Lands, Serial No. AA-818, issued on October 27, 1967.^{Notice, Classification of Pub. Lands for Multiple Use Mgmt., 32 Fed. Reg. 14,971–14,972 (Oct. 28, 1967); see also Correction, 32 Fed. Reg. 16,057 (Nov. 22, 1967) (correcting minor errors in land descriptions); Notice, Partial Termination of Segregative Effect, 33 Fed. Reg. 4997 (Mar. 26, 1968) (amending notice to allow state to select community grant and administrative sites).}

Map 1. BLM’s 1967 Land Classification.

The final “Iliamna Unit” classification encompassed most of the Iliamna Lake/Kvichak River watershed, nearby areas in the Nushagak-Mulchatna drainage and on the western shore of Cook Inlet, and included the three townships where the Pebble claims presently lie and where tailings facilities for a potential Pebble mine could be located.^{Paragraph 5 of the Notice describes these 6.5 million acres, in terms of township and range, as including “Tps. 1 to 17 S., Rs. 33 to 36 W.,” Seward Meridian (S.M.). Notice of Classification of Pub. Lands for Multiple Use Mgmt., 32 Fed. Reg. 14,971–14,972 (Oct. 28, 1967). This description includes lands where the Pebble claims presently lie in T.3 S., R. 35 W., SM., and where its potential sites for tailings facilities in T. 4 S., R 35 W., SM. and T. 3 S., R. 36 W., SM, would subsequently be located. In 2006, NDM submitted applications to the Alaska Department of Natural Resources for water rights and permits to construct dams. For the township and range locations of the Pebble deposit and potential tailings facilities, see Northern Dynasty Mines, Inc., Ref. No. VA101-176/16-13, Pebble Project, Tailings Impoundment A, Initial Application Report, fig.3.1 (2006), available at http://www.dnr.state.ak.us/mlw/mining/largemine/pebble/water-right-apps/2006/damafig.pdf. See also Pebble Project—Water Right Applications, Alaska Dep’t of Natural Res., Mining, Land & Water, http://www.dnr.state.ak.us/mlw/mining/largemine/pebble/water-right-apps/index.cfm (providing hyperlinks to all available NDM permit applications including the preceding Tailings Impoundment A, Initial Application Report) (last visited Apr. 1, 2012).}

Except as provided in paragraphs 2, 3, and 4 of the final Notice, this classification segregated these 6.5 million acres of federal land from all forms of appropriation under the federal public land laws, including selection by the State under Section 6(b) of the Statehood Act. Paragraph 2 provided that the mining laws for locatable minerals (i.e., those that are subject mining claims) would continue to operate only on land beyond one-half mile from lakes over forty acres,^{Closing the land within a half mile of lakes over forty acres to the operation of the mining laws protected sockeye salmon, which rear in lakes and are the most important commercial stock. Forty acres is a quarter-mile square. Some lakes in the vicinity of the Pebble deposit, such as Frying Pan Lake, appear to be over forty acres. It is beyond the scope of this article to map the portion of the classification area that was closed to new mining claims.} one-half mile from Cook Inlet, and one-quarter mile from the Pile Bay-Iliamna Bay portage road between Cook Inlet and Iliamna Lake. Paragraph 3 provided that the land remained subject to the mineral leasing laws for leasable minerals such as oil and gas. Paragraph 4 identified approximately 89,200 acres (of the 6.5 million acres) that remained subject to settlement by Alaska Natives under the Native Allotment Act of May 17, 1906^{Native Allotment Act of May 17, 1906, 34 Stat. 197 (codified as amended at 43 U.S.C. § 270-1 to 270-3 (repealed 1971)).} and subject to disposal under certain other public land laws, including state selection under community expansion provisions of Section 6(a) of the Statehood Act. Thus, the Iliamna Unit land classification (1) foreclosed state selections under Section 6(b) of the Statehood Act and thereby retained virtually all the land in federal ownership, and (2) closed all land to new mining claims within a half mile of lakes over forty acres, which applied to most lakes where sockeye salmon rear or spawn, such as Iliamna Lake and others over forty acres.

Generally, the State of Alaska supported these actions even though they closed most of the land to state selections, and much of it to mining claims. The Governor, Walter J. Hickel, focused on the recreational and commercial fisheries. He wrote to the Secretary of the Interior that the classification

has received enthusiastic support by the State of Alaska, which recognizes that in certain circumstances, such as the Iliamna classification, immediate recreational development might be difficult to accomplish without the Federal Government’s assistance. However, as pointed out by BLM officials, a substantial portion of the nursery area for the Bristol Bay salmon run is included in the Iliamna classification. Obviously, administrative sites to aid in effective fish and game management will be needed in the classified area.^{Letter from Governor Walter J. Hickel to Stewart Udall, U.S. Sec’y of the Interior (Nov. 30, 1967) (on file with BLM in Anchorage, Alaska, case file No. AA-818).}

Governor Hickel requested that the classification order be modified to allow community expansion selections (under Section 6(a) of the Statehood Act) from the entire area, instead of just the 89,200 acres in Paragraph 4. He also suggested that the State’s general land grant selections (under Section 6(b) of the Act) be permitted “if it be determined by State agencies to be in the best interests of sound fish and game and other resource management.” Subject to these suggestions, he wrote that the State was “basically in accord with the classification order as devised.”^{Id. In response to Governor Hickel’s request, BLM modified the classification to allow the State to select community grant lands and administrative sites under any provisions of the Statehood Act, but the area still remained segregated from selection under the general land grant provisions of the Act. See Notice of Partial Termination of Segregative Effect, 33 Fed. Reg. 4997 (Mar. 26, 1968).}

From 1968 to April 1971, BLM prepared an “Iliamna Unit Resource Analysis” in order to make recommendations for future BLM management of the Iliamna Unit and address issues that are still current today. These issues included potential mining and roads, and protection of fish and wildlife habitat and commercial, subsistence, and sport fishing, and will be discussed further below.^{See BLM, Iliamna Unit Resource Analysis, pt. 4, Lands, at 11 (1971) [hereinafter BLM Analysis] (on file with Alaska Resources Library & Information Services, University of Alaska Anchorage). This is probably the first such land use planning document produced in Alaska for multiple use lands. It was prepared prior to the Federal Land Policy and Management Act of 1976 and the National Forest Management Act, which respectively require BLM and the U.S. Forest Service to adopt land use plans. See also Memorandum from BLM, Request for Status Plats of Iliamna Unit (Sept. 24, 1968) (on file with BLM in Anchorage, Alaska, case file No. AA-818) (indicating that BLM’s planning process had commenced in 1968).}

As BLM was preparing its Analysis, the Alaska Legislature also took the first of many steps by the State to conserve fish and wildlife habitat in the Bristol Bay drainages. In 1970, the Alaska Senate passed Senate Resolution No. 14. It expressed the Senate’s opposition to a proposed Iniskin Bay-Iliamna Lake road route to the Village of Iliamna and Bristol Bay, which is now the same route proposed for developing potential metallic sulfide mines in the area of the Pebble mining claims. Senate Resolution No. 14 found (1) that the route would “traverse much prime big game habitat as well as most of the principal spawning streams comprising the most important red salmon spawning area in the world,” and (2) that “historically, big game habitat and spawning streams readily accessible to highways have been seriously harmed by such proximity.” The resolution requested the governor to direct the Department of Highways to study an alternative route.^{S. Res. 14, 6th Leg. (Alaska 1970) (The alternative route was through what was then the Katmai National Monument and is now Katmai National Park and Preserve).}

Also in 1970, the Alaska Legislature passed legislation, H.C.S. S.B. 384, 6th Leg., 2d Sess., to establish a “Bristol Bay Fisheries Reserve,” constituting state-owned “submerged and shoreland”^{Alaska Stat. § 38.05.965 (2011) defines “submerged land” and “shoreland” as follows:
(20) “shoreland” means land belonging to the state which is covered by nontidal water that is navigable under the laws of the United States up to ordinary high water mark as modified by accretion, erosion, or reliction; . . .
(22) “submerged land” means land covered by tidal water between the line of mean low water and seaward to a distance of three geographical miles or further as may hereafter be properly claimed by the state.
The State acquired title to navigable water bottoms at statehood, under the Equal Footing Doctrine of the U.S. Constitution, and under the Submerged Lands Act of 1953, at 43 U.S.C. §1311(a). See State of Alaska v. Ahtna, Inc., 891 F.2d 1401, 1403–04 (9th Cir. 1989).} lying north of 56 degrees, 23 minutes north latitude, and east of 159 degrees, 49 minutes west longitude within the Bristol Bay drainages,^{This latitude intersects the Alaska Peninsula approximately midway between Port Heiden and Port Moller, Alaska, and this longitude intersects Kulukak Bay, between Togiak and Dillingham, Alaska. These points of reference, i.e., Kulukak Bay and Port Moller, would be used in subsequent federal legislation, H.R. 13,416, 92d Cong., 2d Sess. (1972), which proposed a “Bristol Bay National Wildlife Refuge,” discussed below.} which included the shorelands of the Kvichak and Nushagak drainages. This legislation would have barred oil, gas, and mineral leasing or permits within the reserve, but Governor Miller vetoed it in part because “more than 95 percent of the area” was federally owned or beyond the State’s jurisdiction.^{See H.C.S. S.B. 384, 6th Leg., 2d Sess. (Alaska 1970) (as amended by the House); Veto Letter, Gov. Miller to Hon. Brad Phillips, Pres. of S., Alaska Leg. (June 23, 1970), in Alaska S. Journal, 6th Leg. 1342–44 (July 7, 1970). The legislation was sponsored by Senator Jay Hammond. He would play a significant role, as a state legislator and governor, throughout many efforts to balance conservation and development in the Bristol Bay drainages, including the Kvichak and Nushagak drainages.} (This legislation led to subsequent state legislation, enacted in 1972, which, as discussed below, established a slightly smaller Bristol Bay Fisheries Reserve.)

In 1971, the Alaska Legislature took up the broader issue of how it might act to conserve Bristol Bay drainages in the context of what was then nearly total federal land ownership. On January 26, 1971, State Senator Jay Hammond introduced Senate Joint Resolution No. 4 (S.J.R. No. 4), which the Senate, after grammatical amendment, passed unanimously on February 4, 1971, by a vote of twenty to zero.^{S.J.R. 4, 7th Leg. (Alaska 1971); Alaska S. Journal, 7th Leg. 102–03, 119–20 (1971).} On February 5, 1971, twenty state representatives (i.e., half of the Alaska House of Representatives) introduced House Joint Resolution No. 16 (H.J.R. No. 16), which was identical to S.J.R. No. 4, as amended. Both resolutions now stated:

whereas the watersheds of the Kvichak, Naknek, Egegik, and Alagnak Rivers are the world’s greatest salmon spawning grounds; and

whereas these watersheds are among the world’s last significant naturally maintained rainbow trout fisheries; and

whereas these factors coincide to make this area unique as a fishery, both from a commercial and from a recreational standpoint; and

whereas the commercial and sport fisheries in this area are vital to the economic well-being of Alaska; and

whereas the Legislature considers the maintenance and improvement of the commercial and sport fish populations to be the controlling factor in management of these watersheds; and

whereas the spawning and rearing grounds of the commercial and sport species within these watersheds are especially susceptible to damage;

be it resolved that the federal government which now owns and controls these lands is urgently requested to manage the Kvichak, Naknek, Egegik, and Alagnak watersheds in a manner designed to give primary recognition to the extremely valuable commercial and sport fishing resources existing there.^{H.J.R. 16, 7th Leg. (Alaska 1971) (emphasis added); Alaska H. Journal, 7th Leg. 264–65 (1971).}

On February 18, 1971, the Alaska House passed H.J.R. No. 16, by a unanimous vote of thirty-one to zero (and nine excused).^{Although the resolutions were identical, they had separate numbers, and thereafter neither house acted to pass the resolution of the other. Congressional enactment of ANSCA intervened, changing the future of land ownership and management in Alaska. But the sense of the Alaska Legislature is clear from the unanimous votes on these resolutions.}

Meanwhile, on February 2, 1971, Senator Hammond re-introduced legislation to establish a Bristol Bay Fisheries Reserve, with the same boundaries (north of 56 degrees, 23 minutes north latitude and east of 159 degrees, 49 minutes west long longitude) as the legislation which had been passed and vetoed in 1970.^{S.B. 2, 7th Leg., 1st Sess. (Alaska 1971).}

On April 6, 1971, BLM published its “Iliamna Unit Resource Analysis” (BLM Analysis)^{BLM Analysis, supra note 32.} for its “Iliamna Planning Unit and Classification Area.”^{Id. at Lands 11.} BLM’s Analysis inventoried what was known about land use in the area, the people, economy, climate, topography, hydrology, vegetation, soils, geology, minerals, timber, livestock forage, watershed, fish and wildlife habitat, and recreation.^{Id. at tbl. of contents.} At that time, this land was still 99.8% in federal ownership,^{Id. at Lands 9.} the population was 85% Native,^{Id. at Lands 1.} and BLM described the Iliamna Unit as “a ‘frontier’ area where only in relatively recent years has the majority of persons, especially the native population, been very interested in land ownership and title.”^Id. BLM’s Analysis recognized that (1) the Kvichak system is historically “the largest producer of red salmon in the world,” and that “Iliamna Lake and Lake Clark are the principle nursery areas” of the watershed;^{Id. at Lands 1–2.} (2) subsistence uses occurred on virtually any lands that were readily accessible;^{Id. at Lands 6.} (3) the cash economy of villages in the watershed depended primarily on commercial fishing in Bristol Bay;^{Id. at Lands 3.} (4) mineral exploration was occurring, particularly in mineralized areas of the eastern portion of the Iliamna Unit;^{Id. at Minerals 1–16.} and intensive development outside existing communities could occur only with road development;^{Id. at Lands 22.} (5) recreation focused on fish, wildlife, and “open-space wilderness;”^{Id. at Lands 7.} and (6) the area needed a “well balanced land use plan at the earliest possible time that will not appreciably detract from these all-important major recreation-oriented assets, or impair the waters that provide the major spawning grounds for the Bristol Bay commercial fishery.”^Id.

With respect to salmon habitat and based on knowledge at the time, BLM’s Analysis identified sixty-three salmon spawning streams and twenty-seven salmon spawning beaches in the Kvichak drainage. BLM observed that only six streams and two beaches appeared to account for more than five percent of the total sockeye salmon run in the Kvichak watershed, that seemingly “minor” spawning areas may produce up to sixty percent or more of the total Kvichak run, and that these “minor” spawning areas are the most difficult to protect and manage.^{Id. These statements by BLM are an early version of what fisheries biologists refer to as the “portfolio effect,” i.e., that all large and small stocks are important to overall productivity of a salmon resource, because over time, genes that are less successful at one point time or set of environmental conditions time become more successful at another point in time or set of environmental conditions, which is to say that genetic diversity operates like a stock portfolio. See Daniel E. Schindler, et al., Population Diversity and the Portfolio Effect in an Exploited Species, 465 Nature 609, 609 (June 3, 2010).} With respect to salmon habitat, BLM concluded:

A seemingly minor but potentially major problem should be mentioned. The Kvichak salmon run is the product of thousands of small spawning areas. Loss of any one of these small areas will not seriously affect the total run, so the separate areas are not looked upon as being individually important. The loss of many of these areas all at once could have a noticeable effect and would probably be strongly opposed by the fishing industry. But loss of a few areas at a time extended over many years would have the same effect. Yet because the resultant decline in productivity would be prolonged there would be no great public outcry over the loss in spawning area. The fishing industry would more probably blame the lowered productivity on Fish and Game Department management policies.

The solution to this situation is to maintain the commercial fishery spawning grounds and their watersheds in a primitive or wilderness status.^{BLM Analysis, supra note 32, at Wildlife 34. BLM’s Analysis frequently used the words “primitive” or “wilderness” to encompass various means of preserving such character, and referred to designated “wilderness” when referring to the Wilderness Act of 1964, Pub. L. 88-577. As mentioned below, the State does essentially the same in its land use plans for the area.}

With respect to sport fish habitat, BLM concluded:

Most of the fishable waters in the Iliamna Planning Unit are in a relatively pristine state.

Prevention of loss of sport fish habitat would also help in maintaining higher quality fishing. Future developments must be undertaken with maximum protection to watersheds. Roads should be built where erosion and siltation will be minimal. Timber harvesting must be done with buffer strips left along streams and rivers. Mineral development must be restricted from degrading productive waters.^{BLM Analysis, supra note 32, at Wildlife 35.}

With respect to recreation, BLM wrote that rainbow trout are “by far the most sought after species by anglers in the planning unit”; that according to the State, certain waters are of “national if not international value and must be managed as such for future generations”; and that the State had designated nine of the waters as “trophy” trout streams.^{Id. at Wildlife 11. The “trophy” streams were Alagnak (Branch) River, Battle River, Copper River up to its falls, Gibralter Lake and River, Iliamna River, Kulik River, Kvichak River from outlet to Otter Island, Lower Talarik Creek, Newhalen River. See id. at Recreation 1. At the time, “trophy” meant that rivers were protected by restrictive regulations to maintain trophy size trout. Id. at Recreation 2. Most of these sport fisheries for trout are presently managed by the State for catch-and-release during the summer season. See Alaska Admin. Code tit. 5 § 67.022 (2011).} BLM concluded that to maintain the trophy attraction, “restrictive recreation use (probably no development of any kind) will have to be recommended,” that improved access “greatly accelerates the rate at which trophy streams can be degraded to common fishing streams,”^{BLM Analysis, supra note 32, at Recreation 2.} that access provided by the Iniskin-Iliamna route to Bristol Bay would “essentially eliminate” four of the trophy trout waters,^{Id. at Recreation 3–4.} and that the State Highway Department (now Alaska Department of Transportation & Public Facilities) had estimated 40 to 50 thousand visitors per year by 1985 if the road were built.^{Id. at Recreation 32.} With respect to the trophy trout streams, BLM concluded that “high reliance on the wilderness portion of the planning system is a necessity.”^{Id. at Recreation 33.}

Thus, from 1967 to 1971, when the land was nearly all federally owned, and even after the federal government froze state land selections in 1966 pending settlement of Native land claims, the State encouraged federal land use planning to protect uplands as necessary to protect fish and fisheries. This is most evident in (1) Governor Hickel’s “enthusiastic” support for BLM’s 1967 classification, which closed much of Iliamna Lake/Kvichak River drainage to new mining claims, although mineral exploration was occurring, and closed nearly all of that area to state land selections; and (2) the Alaska Legislature’s joint resolutions in 1971 (i.e., S.J.R. No. 4 and H.J.R. No. 16), which “urgently requested” the federal government “to manage the Kvichak, Naknek, Egegik, and Alagnak watersheds in a manner designed to give primary recognition to the extremely valuable commercial and sport fishing resources existing there.”

B. From 1971 to 2005, as Land Ownership Fragmented Due to the Statehood Act, ANCSA, and ANILCA, the State and Federal Governments Adopted Measures to Manage Uplands in the Bristol Bay Drainages to Protect Fisheries, but Cooperative Efforts Across Property Boundaries Failed

Although the Statehood Act reshaped land ownership in Alaska more than any other statute, land conveyed to the State remained public land owned by the State. This is not the case with the Alaska Native Claims Settlement, which conveyed federal land to private corporations. This affected future state and federal efforts to conserve the Kvichak and Nushagak drainages.

1. In 1971, ANCSA Resolved Native Land Claims, Complicates Land Management for Fish and Wildlife that Traverse Property Boundaries, and Prompted Further State and Federal Efforts to Conserve the Kvichak and Nushagak Drainages.

On December 18, 1971, Congress enacted the Alaska Native Claims Settlement Act.^{ANCSA, Pub. L. No. 92-203, 85 Stat. 688 (codified at 43 U.S.C. §§ 1601–1629h (2010)).} It required that the Secretary of the Interior enroll Alaska Natives according to their village and region, that they establish village and regional Native corporations to select lands, and that the Secretary convey about 44 million acres of federal land to these corporations.^{See 43 U.S.C. §§ 1604, 1606, 1607, 1610–13, 1615 (2010).} ANCSA, in addition to the Statehood Act, further re-shaped land ownership patterns and the management of land in Alaska, including in the Kvichak and Nushagak drainages.

Section 11 of the Act withdrew from all forms of appropriation under the public land laws, including the Statehood Act, the “core” township(s) of each Native village, plus two concentric rings of townships surrounding the core township(s).^{A township, “six miles square” (or thirty-six square miles), divides land in squares and is the basis of the U.S. Survey method. See 43 U.S.C. § 751 (2010).} Section 12 required each village corporation to select, from the lands withdrawn for each village, its “core” township(s) plus an area to make each village corporation’s total selection equal to the acreage entitlement established by Section 14.^{43 U.S.C. § 1611 (2010). Under Section 14, the size of the acreage entitlement of a village is proportional to the Native population in the village in the 1970 Census. See id. § 1613(a).} A village corporation received the surface estate, and the corresponding regional corporation received the subsurface estate.^{Id. §1613 (2010).} Section 14 also allowed regional corporations to select additional surface and subsurface acreage.

Section 17 of ANCSA also had substantial effect on the subsequent history of lands in the Kvichak and Nushagak watersheds.^{Id. §1616.} Subsection 17(d)(1) allowed the Secretary of the Interior to withdraw federal lands in Alaska for study and classification in the public interest. Subsection 17(d)(2) required the Secretary to withdraw 80 million acres from appropriation under federal public land laws, including the Statehood Act and the mining laws, in order to submit to Congress within two years his recommendations of lands suitable for addition to or creation of federal conservation system units (e.g., national parks, wildlife refuges, etc.). These land withdrawals protected the land recommended by the Secretary for five years, which would allow time for Congress to act upon the Secretary’s recommendations.^{See id. §1616(d)(2)(D).} Subsection 17(d)(2)(B) re-opened all unreserved federal public lands in Alaska not withdrawn under Subsections 17(d)(1) or (d)(2) to state selection and appropriation under the public land laws. Subsection 17(d)(2)(C) provided that any lands withdrawn under Section 17(d)(2), but not recommended by the Secretary after two years from enactment of ANCSA, would be re-opened to selection by the State or by regional corporations and to appropriation under the public land laws. Section 17(a) established the Federal-State Land Use Planning Commission to assist land use planning in general, including proposed federal conservation system units and state and Native land selections. All these Congressional actions ended the more general 1966 “land freeze.”

However, it was clear that Alaska would be permanently divided up among federal, state, Native corporate and other private land ownerships. This would precipitate many efforts to conserve fish and wildlife habitat in the Kvichak and Nushagak drainages in the context of an evolving pattern of state and Native land selections and future state, federal, and Native ownership.

2. In 1972, While Federal Legislation Proposed a Bristol Bay National Wildlife Refuge, the Alaska Legislature Designates State-Owned Beds of Navigable Waters as the Bristol Bay Fisheries Reserve.

On February 28, 1972, Representative John Dingell of Michigan, and other Members of Congress, introduced H.R. 13,416, “The Alaska Refuges Act,” without waiting for the Secretary of the Interior to submit proposals as required by Section 17(d)(2) of ANCSA. H.R. 13,416 included a proposed “Bristol Bay National Wildlife Refuge,” which included most of the Bristol Bay drainages east of Kulukak Bay and north of Port Moller on the Alaska Peninsula.^{See H.R. 13,416, 92d Cong., 2d Sess. (1972).} Kulukak Bay and Port Moller are approximately the same points of reference that the Alaska Legislature had used as lines of latitude and longitude when it had passed S.B. 384, 6th Leg., 2d Sess., in 1970 and when State Senator Hammond introduced S.B. 2, 7th Leg., 1st Sess., in the Alaska Legislature in 1971.^{See supra text accompanying notes 36–40.} Section 5 of H.R. 13,415 would have made the federal land in the proposed refuges exempt from selection under the Statehood Act, and exempt from selection under ANCSA (which Congress had just enacted), except for the “core” townships described in ANCSA.^{See H.R. 13,416, §5, 92d Cong. 2d Sess. (1972).} Thus arose the issue of fragmented future ownership of land where fish and wildlife do not recognize property boundaries.

In 1972, the Alaska Legislature established a slightly smaller “Bristol Bay Fisheries Reserve” than had been passed and vetoed in 1970. The enacted reserve constitutes the state-owned submerged lands and shorelands “lying north of 57 degrees, 30 minutes, North latitude and east of 159 degrees, 49 minutes, West longitude within the Bristol Bay drainage,”^{Alaska Stat. § 38.05.140(f) (2011). This latitude intersects the Alaska Peninsula at approximately Ugashik, and this longitude intersects Kulukak Bay, between Togiak and Dillingham.} which includes shorelands of the Kvichak and Nushagak drainages. The statute bars surface entry permits to develop an oil and gas lease or oil and gas exploration license in the reserve, until the Legislature, by appropriate resolution, finds that such activities “will not constitute a danger to the fishery.”^{Alaska Stat. § 38.05.140(f) (2011).}

3. In 1973, the Department of the Interior Proposed an Iliamna National Resource Range.

In December 1973, the Secretary of the Interior submitted recommendations to Congress for conservation system units in Alaska, as required by Section 17(d)(2) of ANCSA. These recommendations included a proposed "Iliamna National Resource Range" of about 3 million acres.^{Letter from Rogers Morton, Sec’y of the Interior, to Speaker, H.R. (Dec. 17, 1973), reprinted in H.R. Comm. on Interior and Insular Affairs, Background Information for Alaska Lands Designations 130 (Comm. Print 4, 1977).} In 1974, the Department of the Interior (DOI) issued an environmental impact statement (EIS) on each of these recommendations. Each EIS first identified an “area of ecological concern,” and within it, DOI developed a proposed conservation system unit based on natural resource values and land status, taking into account potential future land ownership. Land status at the time depended on (1) withdrawals under ANSCA for potential Native selection, (2) the presence of state lands and state selections, and (3) withdrawals under Section 17(d)(1) of ANSCA for public interest classification and under Section 17(d)(2) for potential federal conservation designation.

 

Map 2. Land Status, 1974 EIS on Proposed Iliamna National Resource Range.

DOI identified the entire Kvichak and Nushagak drainages as an “area of ecological concern.” Within this area, the proposed Iliamna National Resource Range encompassed most of the Kvichak River watershed (including the drainages into Iliamna Lake, the southern part of the Lake Clark watershed, and the Alagnak watershed), and most of the Nushagak drainage south of state land selections in the northern part of that drainage. The proposal included lands at and surrounding what are now the Pebble claims. The Iliamna National Resource Range would have

(1) withdrawn the federal land from appropriation under the public land laws, including the Statehood Act and the mining laws [i.e., mining claims], but not the mineral leasing laws,

(2) been jointly managed, by the Bureau of Land Management and the U.S. Fish and Wildlife Service, as part of the National Wildlife Refuge System, “for multiple use and sustained yield management of the area’s resources, with a primary objective being the protection and preservation of the nationally and internationally significant fish and wildlife populations and their habitats, with special emphasis given to anadromous fishes, Alaskan brown bear, endangered species and migratory birds,” and

(3) allowed the Secretary of the Interior to issue permits for exploration and development of mineral deposits normally subject to location and entry [i.e., mining claims] under the mining laws, pursuant to regulations establishing procedures, and terms and conditions, under which such activities could be conducted.^{Dep’t of the Interior, Final Environmental Impact Statement, Proposed Iliamna National Resource Range 1 (1974). Elsewhere, the purposes of the proposal included to “maintain the high quality of the environment of the Lake Iliamna/Nushagak River area in order to protect and perpetuate the total fish and wildlife values with rainbow trout, sockeye salmon and other anadromous fishes, endangered species and migratory birds of particular importance.” Id. at 2.}

The 1974 EIS cited the actions in 1971 of the Alaska Legislature in passing S.J.R.  No. 4 and H.J.R. No. 16, both of which had “urgently requested” the federal government “to give primary recognition to the extremely valuable commercial and sport fishing resources” in much of the area, as part of the history of the proposed Iliamna National Resource Range.^{See id. at 19.} Similarly, comments by the University of Alaska on the draft EIS also recognized that “[t]his proposal is virtually what the State of Alaska Legislature requested in [S.J.R.] No. 4 and [H.J.R.] No. 16.”^{Id. at 452 (Letter from L. J. Peyton, Coord. for Envtl. Serv. and Assist. Zoophysiologist, U. of Alaska, Inst. of Arctic Biol., to T.R. Swem, Chair, Alaska Planning Grp., DOI (Feb. 21, 1974)).}

However, the land status map in the 1974 EIS clearly depicted the emerging pattern of fragmented land ownership in the Kvichak and Nushagak drainages.^{Id. at 9.} Within the broader “area of ecological concern,” the state had selected much of the northern Nushagak drainage where fish production occurs in that watershed; within the 3-million-acre proposal itself, the federal government had withdrawn for Native village selection much of the land along salmon spawning streams draining into Iliamna Lake, and along the lower Nushagak River.^{See id. at 9 (Map 2, Land Status).} Therefore, the EIS proposed regional planning for the Kvichak and Nushagak drainages as follows:

Land ownership and administration in the Iliamna Range will be fragmented into different types; Federal lands, village lands, patented Native allotments, and possibly State lands. Borough, State, regional corporation, village and private interests will be present. . . . A regional planning effort will be critical to achievement of the objectives established in this proposal.^{Id. at 13. EPA’s comments on the draft EIS addressed the emerging pattern of mixed federal-state-Native ownership, and recommended “that provisions be provided that will allow implementation of regional planning which would provide for the most effective resource management.” Id. at 240. The final EIS includes a proposed memorandum of understanding, between BLM and FWS, which states: “The management of other land ownerships in the Iliamna area being critical to effective management of the range’s fishery resource, an overall regional plan for the Iliamna region will be encouraged in cooperation with all concerned ownerships.” Id. at 551.}

However, as shown below, the emerging pattern of fragmented land ownership soon ruptured previous state support for federal efforts to implement protections and was compounded by land issues elsewhere, to the north and east in the Cook Inlet drainages, where one of the largest negotiated land exchanges in American history was in the making.^{See Cook Inlet Region, Inc. (CIRI), Cook Inlet Land Exchange 30-Year Anniversary 1 (2006), available at http://www.ciri.com/media/media/Oct06_LandExchange.pdf.}

4. In 1976, Congress and the Alaska Legislature Ratify the Cook Inlet Land Exchange by Which the State Acquired Federal Land in the Kvichak and Nushagak Drainages, Including Where the Pebble Claims Are Now Located, to Protect Fish.

Soon after Congress enacted ANCSA, it became apparent that within the Cook Inlet region the State has selected much of the desirable federal land that was vacant, unappropriated, and unreserved, or it was already “reserved” as the Kenai National Moose Range (now the Kenai National Wildlife Refuge).^{See ANILCA, Pub. L. 96-487, § 303, 94 Stat. 2371 (1980).} Thus, only limited developable acreage was available for Native selection in the Cook Inlet area.^{ANCSA, Pub. L. No. 92-203, § 12(a)(1), 85 Stat. 688 (1971) (codified at 43 U.S.C. § 1611(a)(1) (2010)) (this limits selections by a village corporation to 69,120 acres within any National Wildlife Refuge existing at the time ANCSA was enacted).} The Native regional corporation, Cook Inlet Region, Inc. (CIRI), sued the United States, alleging that, as a result of this pre-ANCSA land history, its statutory acreage entitlement could only be satisfied by mountain tops and glaciers (the only remaining available land), and that this result would defeat the purpose of ANCSA with respect to CIRI.^{Cook Inlet Region, Inc., supra note 81, at 6.} Although the suit was unsuccessful in the federal district court, CIRI appealed^{See State v. Lewis, 559 P.2d 630, 633 (Alaska 1977) (discussing Cook Inlet Region, Inc. v. Morton, No. A-40-73 Civ. (D. Alaska, Feb. 20, 1975) (unreported decision), appeal docketed sub nom. Cook Inlet Region, Inc. v. Kleppe, No. 75-2232 (9th Cir.)); see also, Memorandum, M.C.T. Smith, Dir., DNR Div. of Lands, to G. R. Martin, Comm’r, DNR (Dec. 6, 1975) (on file at Anchorage Law Library, Alaska Leg. Comm. Files, 1975–1976, fiche nos. 198–99) (discussing CIRI’s lawsuit).} and then sought relief from Congress.

In 1976, Congress enacted Public Law 94-204.^{Pub. L. No. 94-204, 89 Stat. 1145 (1976).} Section 12 of the Act approved a three-way, 2-million-acre land exchange between the United States, the State, and CIRI, pursuant to an agreement described and approved in Section 12(b) as the “Terms and Conditions for Land Consolidation and Management in the Cook Inlet Area, December 10, 1975.”^{Id. § 12, 89 Stat. at 1150-54; H.R. Rep. No. 94-729, at 2402–19 (1975) (setting out the “Terms and Conditions for Land Consolidation and Management in the Cook Inlet Area”).} It is popularly known as the “Cook Inlet Land Exchange” or the “Cook Inlet Land Trade.” Its purpose was “to facilitate land management and to create land ownership patterns which encourage settlement and development in appropriate areas.”^{Pub. L. No. 94-204, § 12(a), 89 Stat. at 1151.} Under the exchange, the State relinquished 21.5 townships (495,360 acres) of state land selections under the Statehood Act on the Kenai Peninsula, in the Matanuska and Susitna Valleys, and in the Beluga Lake Area so that CIRI could select and obtain title to these lands as part of its ANCSA entitlement.^{Id. § 12(b), 89 Stat. at 1151.} In exchange, the State received approximately 52 townships (1,198,000 acres) of lands from the federal government.^Id. These federal lands, conveyed to the State, are described by Section 12(d)(1), at 89 Stat. 1153, as follows:

(i) At least 22.8 townships and no more than 27 townships of land from those presently withdrawn under section 17(d)(2) of the Settlement Act in the Lake Iliamna area, and within the Nushagak River or Koksetna River drainages near lands heretofore selected by the State, the amount and identities of which shall be determined pursuant to the document referred to in subsection (b) [i.e., the “Terms and Conditions for Land Consolidation and Management in the Cook Inlet Area”];

(ii) 26 townships of lands in the Talkeetna Mountains, Kamishak Bay, and Tutna Lake areas, the identities of which are set forth in the document referred to in subsection (b).^Id.

Under the land exchange, the State received title to the three townships where the Pebble deposit and potential tailings facilities are presently located,^{DNR records show the State obtained title to these three townships under the land exchange authorized by PL 94-204. See Alaska DNR Land Abstract, Alaska Dep’t of Natural Res., http://dnr.alaska.gov/projects/las/Land_Abstract.cfm?Meridian=S&Township=003S&Range=035W&Section=&CustFlag=y, http://dnr.alaska.gov/projects/las/Land_Abstract.cfm?Meridian=S&Township=003S&Range=036W&Section=&CustFlag=y, http://dnr.alaska.gov/projects/las/Land_Abstract.cfm?Meridian=S&Township=004S&Range=035W&Section=&CustFlag=y (for each web address, note “PL 94-204, APPX D” under “Title Acquisition”).} plus title to other townships in the vicinity.^{See H.R. Rep. No. 94-729, at 2417–19 (1975) (Appendices D and E of the “The Terms and Conditions for Land Consolidation and Management in the Cook Inlet Area”).} After Congress enacted Public Law 94-204, which approved the exchange for federal purposes, the Alaska Legislature did so for state purposes by enacting Chapter 19 S.L.A. 1976.

The committee files of the Alaska Legislature regarding Chapter 19 S.L.A. 1976 and the Cook Inlet Land Exchange demonstrate that, through the exchange, the State sought and acquired uplands in the Kvichak and Nushagak drainages, including where the Pebble deposit is located, in order to protect fish. First, the committee files contain materials submitted by the Alaska Department of Natural Resources (DNR) to document public meetings it held in late 1975 on the proposed exchange, including DNR’s press release. It describes the exchange as follows:

In the discussions with Cook Inlet Region, Inc., and the Department of the Interior, the State has attempted to accomplish a number of objectives, including the assurance of a rational land ownership pattern within the Cook Inlet Basin and the ability of the State to control certain lands which it feels necessary to properly protect its future interests. This latter point is predicated on the State’s firm conviction that it can govern more effectively and be more responsive to its citizens’ needs than could the federal government.

As it is the role of the State to provide its citizens with a number of public services (i.e., transportation, communications, education, public safety, etc.) it is in the State’s interest, both socially and economically, to insure that future development occurs in those areas best suited for such development, i.e., within areas which contain good land forms, ground water, no flowing [water], etc. and to which governmental services may be brought in an economical manner. This was a prime consideration in determining which lands the State tentatively offered to Cook Inlet Region, Inc.

With respect to lands which the State seeks to gain through this transaction, the emphasis was on those lands in the Cook Inlet and nearby Iliamna Lake areas which the State feels should remain in public ownership and which it wishes to own itself to insure that its objectives in those areas are under its control. In particular, two areas are sought. First, the lands presently in federal ownership in the Talkeetna Mountains area, where Cook Inlet Region would select, north and east of the populated Matanuska and Susitna Valleys respectively. In addition to timber, watershed, and high recreational values, these lands will become increasingly more important to the State as future development and settlement intensifies on the periphery in the Matanuska and Susitna Valleys.

The second area of interest is Iliamna Lake. This watershed produces the world’s largest red salmon fishery and it is upon this fishery which the major portion of our citizens in the Bristol Bay area are dependent. The area is also the focus of the finest trophy rainbow trout system in North America. The State has management control of these fisheries and by gaining control of the remaining public lands would be able to more effectively manage these fisheries in the public interest. Also, with approximately 15 percent of the lands in the Bristol Bay area going into native village corporate ownership the State feels that it can be much more responsive to both their private needs and those of the public in this area than could be the geographically removed federal government. In addition to these very high fishery values, this area has high wildlife and recreational values as well as some oil and gas potential.^{Press Release, DNR, Background—Cook Inlet Land Trade Proposal (on file at Anchorage Law Library, Alaska Leg. Comm. Files, 1975–1976, fiche no. 279) (emphasis added).}

Second, the committee files contain a forty-two-page memorandum, from DNR’s Director of the Division of Lands, Michael C. T. Smith, to the Commissioner of DNR, Guy R. Martin, dated December 6, 1975. It explains the State’s reasons for seeking lands in the area of Iliamna Lake and within the proposed Iliamna National Resource Range:

In the Lake Iliamna and Bristol Bay National Resource Range Proposal approximately 15 percent of the lands will be under the control of private Native corporations. The State can more effectively administer to the requirements of its citizens in those areas if it owns the other lands within that region. Additionally, the tremendous dependence upon the salmon fishery resources of that region, and the current responsibility of the State to manage those resources, argue cogently that the State should also control the uplands in that area.^{Memorandum, M.C.T. Smith to Guy R. Martin, supra note 85, at 8. (emphasis added).}

Third, the committee files contain (1) an “Outline for Oral Presentation” of “An Analysis of Issues Related to the Proposed Cook Inlet Land Trade,” by David Jackman and John Katz, dated February 11, 1976, and presented orally by them at a Joint Resources Committee hearing on that date, and (2) DNR’s written response, titled “Proposed Cook Inlet Land Trade (Department of Natural Resources’ Response to Jackman-Katz Analysis),” dated February 12, 1976.^{David Jackman & John Katz, Outline for Oral Presentation of An Analysis of Issues Related to the Proposed Cook Inlet Land Trade (Feb. 11, 1976) and DNR’s Response (Feb. 12, 1976) (on file at Anchorage Law Library, Alaska Leg. Comm. Files, S. Res. Comm., 1975–1976, fiche no. 313). Mr. Jackman was the State Co-Chair of the Federal-State Land Use Planning Commission established by ANCSA, and Mr. Katz was counsel. Eventually, Mr. Katz served eight Alaska governors, most notably as the director of the Governor’s Office in Washington, D.C., the State administration’s representative there, and also as the Commissioner of Natural Resources from 1981 to 1983.} The Jackman-Katz outline summarizes the arguments for and against various provisions in the land exchange. With respect to lands in the area of Iliamna Lake and the Iliamna National Resource Range proposal, the outline states:

Protection of Bristol Bay Fishery Values

argument for: “In the Lake Iliamna and Bristol Bay National Resource Range Proposal approximately 15 percent of the lands will be under the control of private Native corporations. The State can more effectively administer to the requirements of its citizens in those areas if it owns the other lands within that region. Additionally, the tremendous dependence upon the salmon fishery resources of that region, and the current responsibility of the State to manage those resources, argue cogently that the State should also control the uplands in that area.”

argument against: The State will get no lands at all in the Iliamna watershed which is the critical area for the Bristol Bay fisheries. The lands the State will receive in the Mulchatna drainage are much less important from a fisheries standpoint. Irrespective of the proposed trade, the State will have an opportunity recognized in §17(d) of ANCSA to select lands in the Iliamna drainage within the Bristol Bay village withdrawals after Native selections are completed. The State has other regulatory tools such as the Anadromous Fish Stream Act [sic] which can be used to protect fisheries habitats.^{Jackman, supra note 96, at 2.}

DNR’s response rebutted the above “Argument Against,” and asserted that under the land exchange, “[u]p to eight townships come from the Iliamna watershed” to be conveyed to the State.^{DNR’s Response, supra note 96, at 4.} In effect, DNR was asserting that state ownership of land in these watersheds, not merely permitting statutes such as the Anadromous Fish Act, was the best way to protect the area’s fish habitat.

Finally, the committee files contain a letter from the Federal-State Land Use Planning Commission to U.S. Senator Henry M. Jackson, Chair of the U.S. Senate Committee on Interior and Insular Affairs. The Commission had assisted the parties to the exchange and had supported it because “the State would obtain additional lands in the Bristol Bay watershed, which is of critical importance to the State for its fishery and recreational values.”^{Letter from B. W. Silcock, Fed. Co-chair, Fed.-State Land Use Planning Comm’n, to Henry M. Jackson, Chair, Sen. Comm. on Interior and Insular Affairs 1–2 (Oct. 30, 1975) (on file at Anchorage Law Library, Alaska Leg. Comm. Files, S. Res. Comm., 1975–1976, fiche no. 314).}

Thus, in a final analysis, the State’s goal of conserving uplands in the Bristol Bay drainages to protect fish remained constant, but its method of achieving its goal changed in response to fragmenting of land ownership. From 1967 to 1971, when the federal government owned virtually all the land, Governor Hickel and the Alaska Legislature’s method was to support federal efforts to manage the watersheds to protect the fisheries, even when doing so meant closing most the land to state selection and closing much of it to new mining claims. Then, after 1971, as land ownership started to fragment, DNR made clear to the public and the Legislature that “the tremendous dependence upon the salmon fishery resources of that region, and the current responsibility of the State to manage those resources, argue cogently that the State should also control the uplands in that area,”^{Memorandum, M.C.T. Smith to Guy R. Martin, supra note 85, at 8 (emphasis added).} and “by gaining control of the remaining public lands,” the State “would be able to more effectively manage these fisheries in the public interest.”^{Press Release, DNR, supra note 94 (emphasis added).} This included land closed to state selection, by BLM’s 1967 classification order and by secretarial withdrawal under Section 17 of ANCSA, but acquired by the State through the Cook Inlet Land Exchange, which included the three townships that would later emerge as the site of the Pebble mining claims and the potential Pebble mine and tailings storage facilities. In other words, the State acquired the lands at Pebble to protect fish.

5. In 1978, the Alaska Legislature Enacts Comprehensive Land Use Planning Legislation for State Lands, and Establishes Wood-Tikchik State Park.

In 1978, the Alaska Legislature enacted Chap. 181 S.L.A. 1978,^{Codified at Alaska Stat. §§ 38.04.005–38.04.910 (2011).} which requires DNR to adopt comprehensive land use plans for state lands.^{Alaska Stat. § 38.04.065 (2011).} It helps to summarize these statutes and the implementing regulations because DNR subsequently adopted a 1984 Bristol Bay Area Plan for State Lands (1984 BBAP)^{Alaska Dep’t of Natural Res., Bristol Bay Area Plan for State Lands (1984) [hereinafter 1984 BBAP], available at http://dnr.alaska.gov/mlw/planning/areaplans/bristol/pdf/bristol_bay_area_plan.pdf.} and the current 2005 Bristol Bay Area Plan for State Lands (2005 BBAP)^{Alaska Dep’t of Natural Res., Bristol Bay Area Plan for State Lands (2005) [hereinafter 2005 BBAP], available at http://dnr.alaska.gov/mlw/planning/areaplans/bristol/index.htm.} under these statutes and regulations. Both land use plans include the Kvichak and Nushagak drainages and will be discussed below.

Alaska Statute (A.S.) 38.04.005(a) establishes state policy for land use planning for state lands:

[I]t is the policy of the State of Alaska to plan and manage state-owned land to establish a balanced combination of land available for both public and private purposes. The choice of land best suited for public and private use shall be determined through the inventory, planning, and classification processes set out in AS 38.04.060–38.04.070.^{Alaska Stat. § 38.04.005(a) (2011).}

A.S. 38.04.060(a) requires DNR to prepare and maintain, on a continuing basis, an inventory of resources and other values on state lands.^{Id. § 38.04.060(a).} Under A.S. 38.04.065(a), DNR must, with local governmental and public involvement, adopt, maintain, and, when appropriate, revise “regional land use plans” that provide for the “use and management of state-owned land.”^{Id. § 38.04.065(a).} For purposes of developing, adopting and revising these plans, A.S. 38.04.065(b) requires DNR to

(1) use and observe the principles of multiple use and sustained yield;

(2) consider physical, economic, and social factors . . . and involve other agencies and the public in . . . a systematic interdisciplinary approach;

(3) give priority to planning and classification in areas of potential settlement, renewable and nonrenewable resource development, and critical environmental concern;

(4) rely, to the extent that it is available, on the inventory of the state land, its resources, and other values;

(5) consider present and potential uses of state land;

(6) consider the supply, resources, and present and potential use of land under other ownership within the area of concern;

(7) plan for compatible surface and mineral land use classifications; and

(8) provide for meaningful participation . . . by affected local governments, state and federal agencies, adjacent landowners, and the general public.^{Id. § 38.04.065(b).}

A.S. 38.04.065(c) provides that each regional plan must identify and delineate “(1) areas of settlement and settlement impact . . . and (2) areas that must be retained in state ownership and planned and classified for various uses and purposes under A.S. 38.04.015.”^{Id. § 38.04.065(c).} A.S. 38.04.015 provides in part that the primary public interests served by retaining areas of state land surface in public ownership are

(1) to make them available on a sustained-yield basis for a variety of beneficial uses including subsistence, . . . sport hunting and fishing, hiking, . . . and other activities of a type which can generally be made available to more people . . . if the land is in public rather than private ownership;

(2) to facilitate mining and mineral leasing by managing appropriate public land for surface uses which are compatible with subsurface uses;

(3) to protect critical wildlife habitat and areas of special scenic, recreational, scientific, or other environmental concern . . . .^{Id. § 38.04.015.}

A.S. 38.04.065(h) provides that after adoption of a regional plan, land classifications shall be made under the adopted plan.^{Id. § 38.04.065(h).}

Regulations at title 11, chapter 55 of the Alaska Administrative Code (A.A.C.) implement A.S. 38.04. An area plan generally has an operative life of about twenty years,^{See, e.g., 2005 BBAP, supra note 105, at A-10 (definition of “planning period”).} and is a regional plan, which must include “land classifications” and “management guidelines and stated management intent, representing department policies to guide the actions of the department when making land use decisions, directing land management and ensuring compatibility among competing land uses.”^{Alaska Admin. Code tit. 11, § 55.030(a), (c)(4), (c)(6) (2011).} “Classification” means “designation of land according to its primary use, and in a manner that will provide maximum benefit to the people of Alaska.”^{Id. § 55.280(1) (emphasis added).} A classification “identifies the primary use for which the land will be managed, subject to valid existing rights and multiple use”; in addition, “the department may authorize other uses that do not conflict with the plan.”^{Id. § 55.040(c).} Classification “reflects surface impacts of surface or subsurface uses, or both.”^{Id. § 55.040(a).} A classification takes effect when the commissioner signs a land classification order, which converts designated uses to land classifications.^{Id. § 55.272; see also 2005 BBAP, supra note 105, at 4-5 to -6 (“conversion tables”).} A parcel may have up to three co-classifications when a particular use is not designated as dominant.^{See Alaska Admin. Code tit. 11, § 55.040(d) (2011).} The regulations establish and define seventeen land classification categories.^{Id. §§ 55.050–.230.} These include a “public recreation land” classification category, defined as including land used for recreational hunting, fishing, and greenbelts along bodies of water.^{Id. § 55.160. However, the regulations lack a comparable category for land used for subsistence hunting and fishing, even though subsistence is the first use listed in Alaska Stat. §38.04.015(1) (2011), which states the purposes and uses for which land will be planned and classified for retention pursuant to Alaska Stat. §38.04.065(c)(2) (2011).} Pursuant to A.S. 38.04.065(c)(2) and A.S. 38.04.015, classifications such as habitat, public recreation, and mineral land require that land so classified remain in public ownership.^{Alaska Stat. §§ 38.04.065(c)(2), 38.04.015 (2011).} Other classifications, such as settlement land and resource management land, do not carry this requirement.

Thus, DNR’s area plans essentially perform two types of functions. First, DNR divides the state land in an area into planning units, designates the primary use(s) of each unit, and upon adoption of the plan, a land classification order converts the designated primary use(s) to “classification(s).” Second, the plan adopts area-wide guidelines and unit-specific statements of management intent. All classifications are, initially, multiple-use classifications, but if uses are incompatible or cannot be made compatible, then a designated use for which a unit is classified has priority over an incompatible undesignated use.^{See Alaska Admin. Code tit. 11, § 55.040(c) (2011).} DNR uses the classifications, guidelines, and statements of management intent to adjudicate applications for permits, leases, rights-of-way, etc., as well as to authorize sales and conveyances.^{See 2005 BBAP, supra note 105, at 1–5.}

Also in 1978, the Legislature established the Wood-Tikchik State Park, which encompasses the Wood River and Tikchik Lakes, which are major sockeye salmon spawning and rearing areas of the Nushagak drainage.^{Codified at Alaska Stat. § 41.21.161 (2011).} The enabling statutes provide that “[t]he fish and wildlife habitat breeding areas in the Wood-Tikchik State Park shall be managed to sustain the fish and wildlife resources of the park in perpetuity.”^{Codified at Alaska Stat. § 41.21.166 (2011).}

6. From 1977 to 1980, Congress Considered and Enacted the Alaska National Interest Lands Conservation Act, Which Establishes the Bristol Bay Cooperative Region.

From 1977 to 1980, Congress actively considered Alaska lands legislation to create or expand conservation system units in Alaska, as initiated by Section 17(d)(2) of ANCSA.^{See 43 U.S.C. § 1616(d)(2) (2010).} The State and Governor Jay Hammond advocated a federal-state cooperative planning region in the Bristol Bay drainages, so as to plan for integrated conservation and development across the fragmented, federal-state-Native land ownership pattern that was emerging there.^{H.R. Rep. No. 96-97, pt. II, Alaska National Interest Lands Conservation Act, Committee on Merchant Marine and Fisheries 163 (1979).} In 1979, the U.S. House of Representatives, Committee on Merchant Marine and Fisheries, reported out H.R. 39, which included a provision to establish a “Bristol Bay Cooperative Region” and a process to develop a cooperative land use plan^{H.R. 39, § 306 in H.R. Rep. No. 96-97, pt. II, Alaska National Interest Lands Conservation Act, Committee on Merchant Marine and Fisheries 16–19 (1979).} similar to that developed in conjunction with local communities by the planning agency for the Adirondack Forest Preserve and Park in New York State, where the state legislature had recognized “the unique land ownership pattern” and “the intermingling of public and private lands,” and had mandated a cooperative land use plan “to reflect the actual and projected uses of private lands” in the Adirondack area.^{H.R. Rep. No. 96-97, pt. II, Alaska National Interest Lands Conservation Act, Committee on Merchant Marine and Fisheries 163 (1979).}

In early 1980, the Department of the Interior issued several supplements to the 1974 EISs on proposed federal conservation units. These included a supplement to the 1974 EIS on the proposed Iliamna Natural Resource Range.^{See, e.g., Dep’t of the Interior, Final Environmental Impact Supplement On Alternative Administrative Actions for The Proposed Iliamna National Resource Range (1980).} It addressed the possibility that Congress would not act, and proposed two alternatives: (1) withdrawing the federal land under Section 204(c) of the Federal Land Policy and Management Act to create an Iliamna National Wildlife Refuge administered by the U.S. Fish and Wildlife Service (USFWS); or (2) withdrawing the federal land under the Antiquities Act to create a national monument administered by USFWS.^{Id. at i.} Such an area would be closed to new mining claims^{Id. at iii–iv.} and would have included land at and adjacent to what are now the Pebble claims and other deposits in the area.^{See id. at 11 (Map 2, Land Status). As the federal legislation evolved, Congress moved the federal lands in the Alagnak drainage (which had been within the 1974 proposed Iliamna Natural Resource Range) into the proposed expansion of the Katmai National Monument that would be re-named the Katmai National Park and Preserve, and moved the lands surrounding the southern portion of Lake Clark into the proposed Lake Clark National Park and Preserve.} Also, because Native selections had become clearer since the 1974 EIS, the fragmented land ownership pattern had also become clearer.

Map 3. Land Status, 1980 Supplement to EIS on Proposed Iliamna National Resource Range.

Meanwhile, the State in 1978 had filed applications under the Statehood Act to select nearly all federal land within the Iliamna proposal.^{See id. at 17 (Map 4, State lands applied for November 14, 1978).} This included top-filing state selections on most Native village selections.

Map 4. State Sections of November 14, 1978, in 1980 Supplement to EIS on Proposed Iliamna National Resource Range

Regarding the EIS supplements, DNR consolidated and attached state agency comments,^{Id. at 83–117.} which included those of DNR’s Division of Geological and Geophysical Survey, which documented known mineral deposits, and found that “[m]uch of the Iliamna National Resource Range has a relatively low mineral potential,” but that a portion of the area was “considered to have high mineral potential.”^{Id. at 96–98 (Memorandum from T. K. Bundtzen, Mining Geologist, DNR Div. of Geolog’l. & Geophys. Surveys, to J. Wickes, Acting Dir., DNR Div. of Planning and Research (Apr. 22, 1980)).} DNR’s cover letter to these consolidated state agency comments stated:

With respect to the Iliamna supplement in particular, the State would like to see the option of state ownership elevated to an “Alternative Action” from its present position as a mere possibility under the “No Action” alternative. We think such treatment is justified for several reasons. First, the State’s ownership interest in the Iliamna-Nushagak area has long been a matter of record. The State has, through a systematic land evaluation and selection process, identified some 4 million acres of land in this area as being suitable and desirable for state ownership. The State’s interest here relates to these lands’ habitat value for the Bristol Bay salmon fishery.^{Id. at 84 (Letter from A. Mathews, Dir., DNR Div. of Res. & Dev., to Area Dir., Heritage Cons. and Rec. Serv., DOI, and to Area Dir., USFWS, DOI (May 5, 1980)) (emphasis added).}

Thus, the stated overarching reason that the State of Alaska sought to acquire lands in the Kvichak and Nushagak drainages was because of their “habitat value for the Bristol Bay salmon fishery,” notwithstanding the fact that the State was also aware of mineral deposits in the area. Similarly, the comments of the Alaska Department of Fish and Game (ADF&G) on the Iliamna supplement focused on the fragmented land ownership. ADF&G estimated that Native corporations would eventually own about 1.4 million acres, and the State about 0.1 million acres, of the 3-million-acre proposed range.^{See id. at 113 (Letter from R. Skoog, Comm’r, ADF&G, to J. Katz, Spec. Counsel to Governor (May 8, 1980)).}

The State’s desire to obtain the lands to protect fish, and the fragmented pattern of ownership, led Congress to enact, instead, Title XII of ANILCA, which seeks federal-state cooperation in land use planning.^{See ANILCA, Pub. L. 96-487, §§ 1201–03, 94 Stat. 2371, 2466–72 (1980).} Section 1201 established the Alaska Land Use Council. It had federal and state co-chairs and was composed of representatives of the various federal and state agencies, and two representatives selected by ANCSA regional corporations.^Id. Section 1201(j)(1) required the Council to “recommend cooperative planning zones” consisting of areas in which the management of lands or resources by one landowner materially affects the management of lands or resources of another owner or owners including the Bristol Bay drainages.^Id. This section also encourages federal members to enter into cooperative agreements with the State and local agencies and with Native Corporations for mutual consultation and coordination of resource management plans and programs within such zones.^Id. With respect to lands, waters, and interests which are subject to cooperative agreement, Section 1201(j)(2) authorizes the Secretary of the Interior to provide technical and other assistance to the non-federal landowners with respect to fire control, trespass control, law enforcement, resource use, and planning, without reimbursement if the Secretary determined that to do so would further the purposes of the cooperative agreement and would be in the public interest.^Id.

Section 1203 establishes the Bristol Bay Cooperative Region, containing all land from the Bering Sea coast in the vicinity of Quinhagak, Alaska, east across the drainages of the Nushagak and Kvichak Rivers, and south to the end of the Alaska Peninsula, except National Park Service land.^{94 Stat. at 2470–72. Section 1203 states that the land in the cooperative region is generally depicted on a map entitled “Bristol Bay-Alaska Peninsula,” dated October 1979. See also State of Alaska & U.S. Dep’t of the Interior, Proposed Bristol Bay Cooperative Management Plan and Revised Draft Environmental Impact Statement (1984) [hereinafter Proposed BBCMP] (including map of the cooperative planning area).} Section 1203 directed that if the State elected to participate, then the Secretary of the Interior and the State would prepare a cooperative land use plan, for which the purposes were to be as follows:

(1) to conserve the fish and wildlife and other significant natural and cultural resources within the region;

(2) to provide for the rational and orderly development of economic resources within the region in an environmentally sound manner;

(3) to provide for such exchanges of land among the Federal Government, the State, and other public or private owners as will facilitate the carrying out of paragraphs (1) and (2);

(4) to identify any further lands within the region which are appropriate for selections by the State under §6 of the Alaska Statehood Act and this Act; and

(5) to identify any further lands within the region which may be appropriate for congressional designation as national conservation system units.^{94 Stat. at 2470–72. Both §§ 1201 and 1203 of ANILCA are silent about affected Alaska Native tribal entities. Neither invokes the government-to-government relationship these entities have with the United States for purposes of land use planning. This omission will be addressed further below.}

ANILCA affirmed the validity of the state land selections filed in 1978 and opened to state selection all land previously classified under the Classification and Multiple Use Act.^{94 Stat. at 2438–39.} Hence, on November 2, 1981, BLM cancelled eight old land classifications under that Act, totaling 32 million acres in Alaska, including the 6.5-million-acre Iliamna Unit classification issued in 1967, when the land there was still 99.8% federally owned.^{Cancellation of Classification of Public Lands, 46 Fed. Reg. 56,058 (Nov. 2, 1981).} In understatement, BLM explained that “numerous actions” affecting these lands had occurred since these old classifications, in particular the passage of ANSCA and ANILCA, and that “[m]uch of the classified land has been selected by the State of Alaska or Native corporations, or has been included in new national parks, forests, and wildlife refuges”; and, consequently, the cancellations were “primarily for record clearing purposes.”^Id. Thus, within the watersheds of Iliamna Lake and the Nushagak River, the State would become the predominant owner of most uplands, while Native corporations would own substantial riparian and littoral lands.

7. From 1981 to 1984, the State and Federal Governments, and Local Interests, Tried Cooperative Land Use Planning Within the Bristol Bay Cooperative Planning Region, Progressed Almost to Completion, but Ultimately Failed.

From 1981 to 1984, the Alaska Land Use Council pursued a federal-state cooperative land use plan under Section 1203 of ANILCA.^{See Proposed BBCMP, supra note 145.} To do so, the Council established an eight-member Bristol Bay Study Group composed of a representative of each of the Alaska Department of Fish and Game, Alaska Department of Natural Resources, Aleutians East Coastal Resource Service Area, Bristol Bay Borough Coastal Management Planning District, Bristol Bay Coastal Resource Service Area, the Bureau of Land Management, the U.S. Fish and Wildlife Service, and the Bristol Bay Native Association (BBNA) to represent diverse “Native Interests.”^{Id. at 1–3.} In 1983, during this effort, BBNA passed resolutions opposing any land disposals in the region and urging the Alaska Legislature to enact legislation to manage exclusively for subsistence and recreational uses all lands within five miles of the Nushagak River (including its major tributaries Nuyakuk, Mulchatna, Kokwok, Koktuli, Swan, King Salmon, and Chichitnok rivers), the Kvichak River, and Iliamna Lake.^{Id. at G-174. If BBNA’s resolution requesting state legislation had led to such a statute, the current dispute over the Pebble deposits would have been avoided, because they are within five miles of the Koktuli River and the Pebble claims were staked in 1986, as noted below. The resolution refers to the “Chichitna” River which is outside the Bristol Bay drainages, so the author assumes this was a typographic error and meant the Chichitnok River, a major tributary to the Nushagak River.}

Ultimately, the Council and the Study Group did not succeed. On August 6, 1984, Governor Sheffield notified the Secretary of the Interior that the State was withdrawing from the cooperative planning process, because it had broken down over issues of state oversight and enforcement of the plan on federal lands and federal oversight and enforcement of the plan on state lands.^{Letter from Bill Sheffield, Governor, State of Alaska, to William P. Clark, Sec’y of the Interior (Aug. 6, 1984) (on file with State of Alaska Archives).} In essence, the disparate ownership of land defeated cooperative planning for the fish and wildlife that are oblivious to such ownership distinctions.

8. From 1984 to 2005, the State’s 1984 Bristol Bay Area Plan Gave Primary Recognition to Fish and Wildlife and Public Uses of Them by Classifying all Twelve Million Acres of State Uplands and Beds of Freshwaters as Habitat.

On September 14, 1984, acting under state land use planning statutes at A.S. 38.04, the Alaska Department of Natural Resources adopted, jointly with the Alaska Department of Fish and Game and the Alaska Department of Environmental Conservation, the twenty-year 1984 Bristol Bay Area Plan for State Lands.^{See 1984 BBAP, supra note 104.} The 1984 BBAP designated fish and wildlife habitat as a primary use of all twelve million acres of state-owned or state-selected land in the Bristol Bay drainages,^{Id. at Map, Primary Land Uses on State Lands (in PDF document at 248); see also id. at 3-1 to -71.} so a DNR land classification order classified all the land accordingly to the land classification categories at 11 A.A.C. 55.050–.230.^{See id. at 3-1 to -71, 5-1 to -2; see also 2005 BBAP, supra note 105, at 4-5 to -6 (conversion tables).} With respect to all land above the high tide line, the 1984 BBAP made co-designations, such as (1) habitat/public recreation land, (2) habitat/public recreation/oil and gas land, or (3) habitat/public recreation/mineral land.^{1984 BBAP, supra note 104, at Map, Primary Land Uses on State Lands.} In the case of lands at and proximate to what are now the Pebble claims, the 1984 BBAP co-designated all the land as habitat/public recreation land and a portion as habitat/public recreation/mineral land.^Id. Corresponding co-classifications resulted.^{See 1984 BBAP, supra note 104, at 5-1 to -2, and ch. 3, Units 6, 10; see also 2005 BBAP, supra note 105, at 4-5 to -6 (conversion tables).} The effect of co-designating and co-classifying land as habitat/public recreation/mineral land is that all three uses are “primary” uses. Under 11 A.A.C. 55.040(c), these co-classifications, in effect, required that any mineral development be compatible with habitat and public recreation, because all three designations and classifications were “peers” of each other, such that any one of the three designated uses did not take precedence over another.

Map 5. Primary Uses/Land Classifications, Kvichak and Nushagak Drainages, from 1984 BBAP.

In adopting the 1984 BBAP, DNR contemporaneously issued Mineral Closing Order (MCO) No. 393, effective September 13, 1984. It closes to new mineral entry approximately 214,000 acres of state land comprised of sixty-four anadromous streams and adjacent uplands for one hundred feet on each side of the ordinary high-water mark, including Upper Talarik Creek and much of Koktuli River, where these streams traverse lands that would later be adjacent to, or in proximity to, the Pebble claims.^{See Alaska Dep’t of Natural Res., MCO No. 393 (Sept. 13, 1984), available at http://dnr.alaska.gov/projects/las/Case_Abstract.cfm?FileType=MCO&FileNumber=393&LandFlag=y (last visited Mar. 22, 2012) (Website provides a summary of MCO No. 393. Page numbers in following citations are from “attachments”).} The closures are based on “findings of the [DNR] Commissioner” that “development of mining claims [within this area] creates an incompatible surface use conflict with salmon propagation and production, and jeopardizes the economy of the Bristol Bay region and the management of the commercial, sport and subsistence fisheries in the Bristol Bay area,” and that “the best interest of the state and its residents” is served by the mineral closure.^{Id. at 2 (Findings of the Commissioner).} This action was supported by a similar, and accompanying, more detailed “Justification for Stream Closures.”^{Id. at 13–23 (Attachment 2: Justification for Stream Closures).} At that time, DNR was apparently concerned about placer mining and processing in or near anadromous fish streams, and the Pebble hard rock mining claims were yet to be staked.^{“Placer mining” involves mining for loose precious metals (e.g., gold nuggets) deposited in or adjacent to stream beds. Hence, when MCO No. 393 closed streams and adjacent lands, it was directed at placer mining. “Hard rock mining” is mining deposits in solid rock and processing of ore, as would occur at the Pebble deposit.}

The 1984 BBAP responded favorably to BBNA’s 1983 resolution by calling for an interagency study by DNR, ADF&G, BLM and USFWS to address the concept of creating “special management corridors or public reserve lands that would be managed entirely and exclusively for traditional and public recreational uses,” and “the need for cooperative land management agreements to ensure maintenance of fish and wildlife used for subsistence and recreation.”  The 1984 BBAP called for this study to be “coordinated with private land owners (particularly Native corporations), lodge owners, guides, sport fish organizations and other interested parties.”^{1984 BBAP, supra note 104, at 5-8.}

With respect to recreation, the 1984 BBAP recognized that “[t]he Bristol Bay region has long been known by sportsmen for its trophy fishing and big game hunting opportunities.”^{Id. at 2-30.} The 1984 BBAP co-designated (and DNR therefore co-classified) the vast majority of uplands and shorelands—about 11 million acres—for public recreation.^{Id. at Map, Primary Land Uses on State Lands. This estimate is based on the map of designated uses.} It defined “recreation” as including virtually “all forms of outdoor public recreational activities, ranging from hunting and fishing to river-floating and snowmachining.”^{Id. at B-3.}

In 1986, Cominco American, Inc. staked and recorded the first of its Pebble claims.^{Alex Prud’homme, The Ripple Effect: The Fate of Freshwater in the Twenty-First Century 305–06 (2011).}

In 1988, Alaska Department of Natural Resources, the Alaska Department of Fish and Game, and the Bristol Bay Coastal Resource Service Area^{The Bristol Bay Coastal Resource Service Area is a special service area created for the purpose of coastal management to allow its residents to participate in local coastal management even though the area is not within an organized borough. Bristol Bay Coastal Resource Service Area Coastal Management Plan, Final Plan Amendment 2 (Jan. 2008), available at http://alaskacoast.state.ak.us/District/DistrictPlans_Final/BBCRSA/BB_Final_Plan_Amendment.pdf.}  published a resource assessment of the Nushagak-Mulchatna drainage, in order prepare a Nushagak-Mulchatna Rivers Recreation Management Plan, adopted by DNR in 1990 as an amendment to the 1984 BBAP.^{See Alaska Dep’t of Natural Res., Nushagak & Mulchatna Rivers Recreation Management Plan (1990), available at http://dnr.alaska.gov/mlw/planning/mgtplans/nushagak_mulchatna/pdf/Nushagak_&_Mulchatna_Rivers_Recreation_Management_Plan.pdf.} This assessment arose in part out of public concerns for both subsistence and recreation, and it sought to protect both, minimize conflicts, and protect existing recreational quality.^{Id. at 1.} The Nushagak-Mulchatna Rivers Recreation Management Plan of 1990 (1990 Rivers Plan) applied to all state land in the Nushagak-Mulchatna drainage.^Id. It did not classify or reclassify land, but instead created three designations for the level of recreational development that DNR would permit on these state lands, that is, (1) semi-developed, (2) semi-primitive, and (3) primitive.^{See id. at 5.} The lands in the Koktuli River drainage in proximity to the western portion of the Pebble claims were designated as primitive.^Id. Long-term uses associated with mining and mineral exploration would be allowed if consistent with the applicable guidelines of the 1990 Rivers Plan and those aspects of management intent other than prohibitions.^{Id. at 11.} Thereafter, the Bristol Bay Coastal Resources Service Area Board adopted the 1990 Rivers Plan as a plan for an “Area Meriting Special Attention” under the Alaska Coastal Management Program.^{See Bristol Bay Coastal Resource Service Area Coastal Management Plan, Final Plan Amendment, supra note 169, at 2. Alaska Statute § 46.40.210 defined an “area which merits special attention” as
a delineated geographic area within the coastal area which is sensitive to change or alteration and which, because of plans or commitments or because a claim on the resources within the area delineated would preclude subsequent use of the resources to a conflicting or incompatible use, warrants special management attention, or which, because of its value to the general public, should be identified for current or future planning, protection, or acquisition; these areas, subject to the department’s definition of criteria for their identification, include:
(A) areas of unique, scarce, fragile or vulnerable natural habitat, cultural value, historical significance, or scenic importance;
(B) areas of high natural productivity or essential habitat for living resources;
(C) areas of substantial recreational value or opportunity;
(D) areas where development of facilities is dependent upon the utilization of, or access to, coastal water;
(E) areas of unique geologic or topographic significance which are susceptible to industrial or commercial development;
(F) areas of significant hazard due to storms, slides, floods, erosion, or settlement; and
(G) areas needed to protect, maintain, or replenish coastal land or resources, including coastal flood plains, aquifer recharge areas, beaches, and offshore sand deposits.
Alaska Stat. § 46.40.210 (repealed 2011).}

9. In 2000, the Alaska Board of Fisheries Adopts a Sustainable Salmon Management Policy that Addresses Habitat, Establishes a “Precautionary Approach” to Scientific Uncertainty, and Guides the Board’s Interaction with Other Agencies.

In 2000, the Alaska Board of Fisheries adopted its “Policy for the Management of Sustainable Salmon Fisheries.”^{Alaska Admin. Code tit. 5, § 39.222 (2011).} The Policy recognizes a need for “sound, precautionary, conservation management practices” and for a framework of “guiding principles and criteria,” including a “precautionary approach” to be used by the Board in managing fisheries and in dealing with other agencies on matters of habitat.^{See id. § 39.222(a).} The Policy states that its goal “is to ensure conservation of salmon and salmon’s required marine and aquatic habitats, protection of customary and traditional subsistence uses and other uses, and the sustained economic health of Alaska's fishing communities.”^{Id. § 39.222(b).} Then, it establishes “principles and criteria” for managing salmon fisheries, including many that focus on protecting habitat before harm occurs, as opposed to mitigation of harm or restoration of harm. These include

(1) wild salmon stocks and the salmon’s habitats should be maintained at levels of resource productivity that assure sustained yields as follows:

(A) salmon spawning, rearing, and migratory habitats should be protected as follows:

(i) salmon habitats should not be perturbed beyond natural boundaries of variation;

(ii) scientific assessments of possible adverse ecological effects of proposed habitat alterations and the impacts of the alterations on salmon populations should be conducted before approval of a proposal;

. . .

(iv) all essential salmon habitat in marine, estuarine, and freshwater ecosystems and access of salmon to these habitats should be protected; essential habitats include spawning and incubation areas, freshwater rearing areas, estuarine and nearshore rearing areas, offshore rearing areas, and migratory pathways;

(v) salmon habitat in fresh water should be protected on a watershed basis, including appropriate management of riparian zones, water quality, and water quantity;

(B) salmon stocks should be protected within spawning, incubating, rearing, and migratory habitats;

. . .

(D) effects and interactions of introduced or enhanced salmon stocks on wild salmon stocks should be assessed; wild salmon stocks and fisheries on those stocks should be protected from adverse impacts from artificial propagation and enhancement efforts;

. . .

(5) in the face of uncertainty, salmon stocks, fisheries, artificial propagation, and essential habitats shall be managed conservatively as follows:

(A) a precautionary approach, involving the application of prudent foresight that takes into account the uncertainties in salmon fisheries and habitat management, the biological, social, cultural, and economic risks, and the need to take action with incomplete knowledge, should be applied to the regulation and control of harvest and other human-induced sources of salmon mortality; a precautionary approach requires

(i) consideration of the needs of future generations and avoidance of potentially irreversible changes;

(ii) prior identification of undesirable outcomes and of measures that will avoid undesirable outcomes or correct them promptly;

. . .

(iv) that where the impact of resource use is uncertain, but likely presents a measurable risk to sustained yield, priority should be given to conserving the productive capacity of the resource;

(v) appropriate placement of the burden of proof, of adherence to the requirements of this subparagraph, on those plans or ongoing activities that pose a risk or hazard to salmon habitat or production;

(B) a precautionary approach should be applied to the regulation of activities that affect essential salmon habitat.^{Id. § 39.222(c) (emphasis added).}

The Policy provides that the Board and Alaska Department of Fish and Game shall use these principles, including the “precautionary approach,” in corresponding with other governmental agencies and officials to address matters of habitat “outside the authority of the department or the board.”^{Id. § 39.222(d)(6).} Thus, like Section 404(c) of the Clean Water Act, the Policy seeks to protect salmon habitat, regardless of land ownership, by establishing “principles and criteria.” Moreover, like EPA’s potential use of Section 404(c) in this instance before permit applications are filed, the Policy includes a “precautionary approach” for protecting habitat before harm occurs, as opposed to mitigation of, or restoration of, harm after it occurs. In other words, EPA’s potential use of Section 404(c) is consistent with the State’s Policy for the Management of Sustainable Salmon Fisheries.

C. From 2005 to Present, DNR’s 2005 Bristol Bay Area Plan Departs from the State’s Long History of Giving Primary Recognition to Managing Uplands to Protect Fish and Fisheries

On April 19, 2005, DNR adopted its current 2005 Bristol Bay Area Plan.^{2005 BBAP, supra note 105 (DNR Commissioner’s adoption signature inside cover).} With respect to fish and wildlife habitat, the 2005 BBAP states a goal of protecting fish and wildlife habitat^{Id. at 2-8.} and establishes guidelines for mitigating harm to “habitat areas,”^Id. which appears to refer to lands for which the designated primary use is “habitat.” However, the 2005 BBAP reduces the inland upland acreage for which habitat is designated a primary use, and classified as such, by ninety-three percent—from nearly 12 million acres in the 1984 BBAP^{1984 BBAP, supra note 104, at 1-5.} to 768,000 acres in the 2005 BBAP.^{2005 BBAP, supra note 105, at 4-4.} The 2005 BBAP acknowledges that “[m]ost of the areas designated ‘Ha’ [meaning habitat areas] are tidelands, shorelands, and submerged land areas; few upland management units were given this designation.”^{Id. at 2-9.}

The 2005 BBAP designates the lands at and surrounding all mineralized areas, including the Pebble claims and other metallic sulfide deposits, as solely as mineral land, and DNR therefore classified them as such.^{Id. at 3-102, -109, -111, -112, -118, -175 (lands designated solely mineral, such that mining and mineral exploration are the sole primary use, are: Units R06-03 (“Shotgun”), R06-18 (“Sleitat”), R06-23 (“Pebble”), R06-24 (“Pebble Streams”), R06-36 (“Kemuk”) and R10-02 (“Pebble2”); see also Land Classification Order No. SC 04-002 in 2005 BBAP supra note 105, at app. B.} The only uplands that retained a habitat designation are in several stream corridors of the Nushagak drainage, and in legislatively designated fish and game refuges.^{See 2005 BBAP, supra note 105, at Map 0-5, Land Use Designations (appended to 2005 BBAP digitally at http://dnr.alaska.gov/mlw/planning/areaplans/bristol/index.htm). See generally id. at 3-1 to -323.} With respect to the Koktuli River and adjacent state lands, they are designated (1) as solely “mineral land” within drainages of the upper reaches of the North and South Forks of the Koktuli River where the Pebble claims and other mining claims are located, (2) as solely “public recreation land” downstream to the confluence of the North and South Forks, and (3) as “habitat” downstream from there.^{Id. at Map 0-5, Land Use Designations (appended to 2005 BBAP digitally at http://dnr.alaska.gov/mlw/planning/areaplans/bristol/index.htm).} With respect to Upper Talarik Creek and adjacent state lands, they are designated (1) as solely “mineral land” within the upper reaches where the Pebble claims and other mining claims are located, and (2) as solely “public recreation land” downstream to Iliamna Lake.^Id.

Map 6. Primary Uses/Land Classifications, Kvichak and Nushagak Drainages, from 2005 BBAP.

To accomplish the ninety-three percent reduction in “habitat”-classified lands from the 1984 BBAP, the 2005 BBAP uses the following definition of “habitat” and the following list of “fish and wildlife categories” to determine whether land should be designated and classified as habitat.

B. Allowing Uses in Fish and Wildlife Habitats (Ha). These habitats are defined as Areas [sic] that serve as a concentrated use area for fish and wildlife species during a sensitive life history stage where alteration of the habitat and/or human disturbance could result in a permanent loss of a population or sustained yield of the species.[^{This definition of “habitat” differs from 11 AAC 55.230, which defines the wildlife habitat land classification category for purposes of land use planning, as follows:
Land classified wildlife habitat is land which is primarily valuable for (1) fish and wildlife resource production, whether existing or through habitat manipulation, to supply sufficient numbers or a diversity of species to support commercial, recreational, or traditional uses on an optimum sustained yield basis; or (2) a unique or rare assemblage of a single or multiple species of regional, state, or national significance.
Alaska Admin Code tit. 11, § 55.230 (2011).}] Fish and wildlife categories used to identify "Ha" (Habitat) designations in this plan include the following:

• Anadromous fish spawning and rearing areas in fresh water or brackish intertidal zones

 • Estuaries important for rearing or schooling of anadromous fish

• Kelp beds covering large areas that are important marine nurseries

• Pacific herring spawning and rearing concentrations areas

• Eel grass beds that are important marine nurseries

• Waterfowl and/or shorebird concentration areas

• Seabird breeding habitat within each colony area of 500 birds and a two-mile radius around major breeding colonies (more than 20,000 birds)

• Bald eagle nest sites or nest site areas, and known concentrations

• Sea lion haulouts and rookeries

• Harbor seal haulouts and rookeries

• Walrus haulouts and rookeries

• Sea otter pupping areas

• Bear concentration areas (including concentrations by season)

• Important wildlife migration corridors, including nearshore migration routes.^{2005 BBAP, supra note 105, at 2-9 (emphasis added).}

This list, and DNR’s application of it, is at the heart of the ninety-three percent reduction in "habitat" classifications, including lands located at, and in proximity to, the Pebble claims and other areas now designated and classified as solely mineral land. DNR’s list and application of it have four significant problems.

First, DNR’s list uses primarily marine-related “fish and wildlife categories” to determine whether or not inland uplands far from the marine environment, should be designated and classified as "habitat." By this illogical scheme, DNR concludes that few uplands merit "habitat" classification.^Id.

Second, no type of caribou or moose habitat is included in DNR’s list. Yet, for example, the Pebble area has been a caribou calving area in recent years, and DNR continued to recognize it as such in the process that created the 2005 BBAP.^{Alaska Dep’t of Natural Res., Div. of Mining, Land & Water, Bristol Bay Area Plan, Planning Regions, Caribou Herds and Critical Habitat (May 1, 2003) (prepared for the 2005 BBAP).} Moreover, calving areas are an essential type of caribou habitat,^{1984 BBAP, supra note 104, at B-1.} and part of the Upper Talarik drainage is moose winter habitat,^{Alaska Dep’t of Natural Res., Div. of Mining, Land & Water, Bristol Bay Area Plan, Planning Regions, Moose Habitat (May 1, 2003) (prepared for the 2005 BBAP).} which is an essential type of moose habitat.^{1984 BBAP, supra note 104, at B-1.}

Third, although DNR’s list includes anadromous fish areas, DNR’s 2005 BBAP applies this criterion only to the beds of waters that are navigable under “title navigability” law, which in Alaska means navigable by a boat used by a guide for guiding customers.^{See 2005 BBAP, supra note 105, at 3-23 to -30 (list of navigable shorelands and designated primary uses of them). As said previously, shorelands are defined by AS 38.05.965(20) as lands beneath waters that are navigable for legal purposes of state ownership under the law of title navigability, by which a state at statehood receives title to the beds of all waters that are navigable, meaning that they are susceptible to commerce at statehood, which in Alaska means navigable by a boat used by a guide for guiding customers. See State of Alaska v. Ahtna, Inc., 891 F.2d 1401, 1404–05 (9th Cir. 1989).} This has no relevance whatsoever to salmon habitat. But the result is that under the 2005 BBAP, only the beds of navigable-for-title anadromous fish waters retained their 1984 "habitat" classification, while the beds of non-navigable-for-title anadromous fish waters, such as Upper Talarik Creek and the upper reaches of the North and South Forks of the Koktuli River, did not retain a protective "habitat" designation.^{See 2005 BBAP, supra note 105, at 3-323 to -330, 3-175. This list of navigable shorelands and classification of them is by “regions” identified in the 2005 BBAP. Upper Talarik Creek is in Region 10 and is not on that portion of the list. Koktuli River is in Region 6.} Accordingly, the beds of non-navigable-for-title anadromous fish streams, including those at or proximate to the Pebble claims and other mineralized areas, lost their prior “habitat” classifications and are now classified solely as mineral land. This is based on DNR’s arbitrary practice of using title navigability, which is irrelevant to fish and their habitats, to determine which streams qualify as habitat.

Fourth, even though Iliamna Lake is navigable,^{Iliamna Lake is roughly seventy-five miles long and up to twenty miles wide. See Division of Land’s Navigability Project, Alaska Dep’t of Natural Res., http://dnr.alaska.gov/mlw/nav/ (last visited Jan. 12, 2011).} and even though the state and federal governments have long recognized it as a “principle nursery area” for the Kvichak salmon run ,^{See, e.g., Letter from Governor Walter J. Hickel, supra note 30; BLM Analysis, supra note 32, at Lands 1–2.} the 2005 BBAP retains the prior habitat designation (and therefore classification) only on the eastern half of Iliamna Lake,^{See 2005 BBAP, supra note 105, at 3-328 (in Region 9, encompassing the eastern half of Iliamna Lake, it is listed as habitat (“Ha”)).} and eliminates the prior habitat designation and classification for the western half of Iliamna Lake, into which Upper Talarik Creek flows from the Pebble mining claims.^{See id. at 3-328 (in Region 10, encompassing the western half of Iliamna Lake, it is not listed as habitat (“Ha”)).}

Then, with respect to recreation, the 2005 BBAP defines “recreation” in a manner that literally “does not refer to . . . sport hunting and fishing.”^{Id. at A-11 (the 2005 BBAP defines “recreation” as: “Any activity or structure intended for recreational purposes, including but not limited to hiking, camping, boating, fishing, and sightseeing. ‘Recreation’ does not refer to subsistence or sport hunting and fishing”) (emphasis in original). By contrast, 11 AAC 55.160 defines the “public recreation land” classification category as: “Land classified public recreation is land that is suitable for recreation uses, waysides, parks, campsites, scenic overlooks, hunting, fishing or boating access sites, trail corridors, or greenbelts along bodies of water or roadways.” Alaska Admin Code tit. 11, § 55.160 (2011). This regulatory definition, like the definition of “recreation” in the 1984 BBAP, includes sport hunting and fishing, while DNR’s definition in the 2005 BBAP emphatically “does not.”} This arbitrary definition raises this question: If sport hunting and sport fishing are not recreation for purposes of land use planning, then what are they?^{Nor does the 2005 BBAP effectively recognize or deal with sport hunting and fishing through its limited habitat designations. As said previously, the 2005 BBAP reduces such designations by ninety-four percent, few uplands received that designation, and the beds of waters that are non-navigable for purpose of legal title did not receive that designation.}

Nevertheless, the 2005 BBAP reduces acreage designated and classified as public recreation land by about eighty-seven percent, from about 11 million acres in the 1984 BBAP (always as a co-designation and co-classification with habitat, oil and gas, or minerals),^{See 1984 BBAP, supra note 104, at Map, Primary Land Uses on State Lands.} to about 1,482,000 acres in the 2005 BBAP^{2005 BBAP, supra note 105, at 4-4.} (of which 768,000 acres are co-classified as habitat, as stated above). Thus, the 2005 BBAP also eliminated the prior designation and classification of “public recreation land” on all lands that are designated and classified solely as “mineral” land under the 2005 BBAP, including those lands located at, and proximate to, the Pebble claims.

The 2005 BBAP includes a guideline which supplements 11 A.A.C. 55.040(c)^{Alaska Admin Code 11, § 55.040(c) (2011) (“A classification identifies the primary use for which the land will be managed, subject to valid existing rights and to multiple use. A land use plan . . . may identify both primary and secondary uses. In addition, the department may authorize other uses that do not conflict with the plan.”) (emphasis added).} to state more clearly that a designated primary use takes precedence over an undesignated use:

In management units where a primary use has been designated, activities and authorizations pertaining to that primary designated use may take precedence over other uses . . . . [O]ther uses may also be allowed if they do not foreclose the area for its priority use. . . . However, if DNR determines that a use conflict exists and that the proposed use is incompatible with the primary use, the proposed use shall not be authorized or it shall be modified so that the incompatibility no longer exists . . . .^{2005 BBAP, supra note 105, at 2-2 to -3 (emphasis added).}

Thus, on land designated and classified solely as mineral land under the 2005 BBAP, mining takes precedence over habitat. With respect to the State of Alaska’s history of seeking to manage uplands to protect fish habitat in the Kvichak and Nushagak drainages, the contrast between the 1984 BBAP and the 2005 BBAP is sharp regarding mining. The 1984 BBAP co-designated areas of mineral potential as habitat/public recreation/mineral land so that under the regulations these three uses were “peers” of each other—none had priority over another. By contrast, the 2005 BBAP designates minerals as the sole primary use of land at or proximate to the Pebble deposit and other deposits. Under the foregoing guideline, mining always takes precedence over other incompatible uses, including fish habitat; commercial, subsistence, or sport fishing and hunting; and public recreation. Based on these and other provisions of the 2005 BBAP, its statements of management intent for the units affected by the Pebble claims are that DNR intends “to accommodate mineral exploration and development” and that Pebble mine “is expected to be authorized.”^{Id. at 3-111, -112, -175 (management intent for Units R06-23 (“Pebble”), R06-24 (“Pebble Streams”), and R10-02 (“Pebble2”)).} As stated earlier, under 11 A.A.C. 55.030(c)(6), such statements of management intent are DNR “policies.”

Finally, contemporaneous with adopting the 2005 BBAP on April 19, 2005, DNR also adopted revisions to the Nushagak-Mulchatna Rivers Recreation Management Plan (2005 Rivers Plan).^{Alaska Dep’t of Natural Res., Nushagak & Mulchatna Rivers Recreation Management Plan (2005) [hereinafter 2005 Rivers Plan], available at http://dnr.alaska.gov/mlw/planning/mgtplans/nushagak_mulchatna_revision/pdf/rrmp_complete.pdf.} Both the 2005 BBAP and the 2005 Rivers Plan revisions severed the lands designated and classified as mineral land under the 2005 BBAP from the 2005 Rivers Plan.^{Id. at 1-6; 2005 BBAP, supra note 105, at 4-17 (2005 Rivers Plan does not apply to lands designated for mining); see also 2005 BBAP, supra note 105, at 3-102, -109, -111, -112, -118, -175 (statements of management intent for lands designated solely mineral exclude application of 2005 Rivers Plan in Units R06-03 (“Shotgun”), R06-18 (“Sleitat”), R06-23 (“Pebble”), R06-24 (“Pebble Streams”), R06-36 (“Kemuk”)). In 2011, the Alaska Legislature allowed the Alaska Coastal Management Program to “sunset,” so it is now repealed. See Alaska Stat. § 46.40 (2012) (identifying each section of 46.40 as repealed). The State now has no program under the federal Coastal Zone Management Act, 16 U.S.C. §§ 1451–1465 (2010).} The revisions also severed the previous link between the 1990 Rivers Plan and the Alaska Coastal Management Program, with the result that the 2005 Rivers Plan is not a plan for an area meriting special attention under the Alaska Coastal Management Program, as the 1990 Rivers Plan had been.^{2005 Rivers Plan, supra note 212, at 1-3.}

II. A Perspective on this History

Time's glory is to calm contending kings,

To unmask falsehood and bring truth to light,

To stamp the seal of time in aged things,

To wake the morn and sentinel the night,

To wrong the wronger till he render right,

To ruinate proud buildings with thy hours,

And smear with dust their glittering golden towers;

To fill with worm-holes stately monuments,

To feed oblivion with decay of things,

To blot old books and alter their contents,

To pluck the quills from ancient ravens' wings,

To dry the old oak's sap and cherish springs,

To spoil antiquities of hammer'd steel,

And turn the giddy round of Fortune's wheel.

—William Shakespeare, The Rape of Lucrece

Part I has demonstrated that, during the entire period from 1967 to the present, the federal and state governments shared and stated a common interest in seeking to conserve fish habitat in the Kvichak and Nushagak drainages, to protect commercial, subsistence and sport fisheries, as it became clear over time that these drainages would be permanently divided up among federal, state, Native corporate and other private land ownerships. And at least from 1967 to 2005, both governments sought to manage uplands in these drainages to protect fish, as well as game, and both sought to protect all waters, navigable and non-navigable, that produce the fish and fisheries.

A. Balancing Conservation and Development: A Common Interest in Managing Uplands to Conserve Fish Habitat

During the period from 1967 to 1971, when the land was federally owned, and even after the Secretary of the Interior administratively “froze” state land selections in 1966 pending resolution of Native land claims, the State encouraged federal land use planning to protect uplands as necessary to protect fish. Typical of this period are: (1) the State’s and Governor Hickel’s “enthusiastic” support for BLM’s 1967 6.5-million-acre land classification, which closed substantial portions of Iliamna Lake/Kvichak River drainage to new mining claims, although mineral exploration was occurring, and closed nearly all of that area to state land selections; (2) the Alaska Senate’s resolution opposing the road route from Inishkin Bay to Iliamna (which is now the proposed route to Pebble) out of concern for fish and game habitat; and (3) the unanimous votes of the Alaska Senate and of the Alaska House of Representatives for resolutions that “urgently requested” the federal government “to manage the Kvichak, Naknek, Egegik, and Alagnak watersheds in a manner designed to give primary recognition to the extremely valuable commercial and sport fishing resources existing there.”^{See S.J.R. 4, 7th Leg. (Alaska 1971); H.J.R. 16, 7th Leg. (Alaska 1971); supra text accompanying notes 37–39.}

During the period from 1971 to 2005, the state and federal governments remained committed to managing uplands in the Bristol Bay drainages to protect fisheries, although mineral potential was long known to exist. Both the Department of the Interior and the State recognized that as the pattern of land ownership became fragmented during the 1970s, cooperative planning would be necessary because fish and wildlife ignore distinctions in land ownership. However, differences emerged between the State and federal governments over how to best balance conservation and development, while seeking to manage uplands as necessary to protect fish. The State sought and acquired federal lands in order to protect fish, including lands where the Pebble claims now are located, and sought cooperative land use planning to address fragmented ownership. The Secretary sought to retain the remaining federal lands, establish a wildlife refuge, and pursue cooperative planning in that context. However, these differences remained divorced from any governmental decision related to a specific development project that might have practical effects on fish, wildlife, or public uses of them.

Eventually Congress agreed to the State’s position, and enacted Section 1203 of ANILCA.^{ANILCA, Pub. L. No. 96-487, § 1203, 94 Stat. 2371, 2470–72 (1980) (codified at 16 U.S.C. § 3183).} In effect, both the state and federal governments had concluded that they needed cooperative land use planning between state, federal, and Native entities and interests, similar to what New York State had achieved in the Adirondacks,^{See supra text accompanying notes 127–29.} to manage lands across land ownership boundaries. However, this conclusion still existed in the abstract because no entity had yet confronted a specific major proposed project that would force a choice between habitat conservation and public uses versus permitting the project.

Hence, Section 1203 of ANILCA put the first two purposes of this cooperative planning—that is, (1) to conserve the fish and wildlife and other significant natural and cultural resources within the region and (2) to provide for the rational and orderly development of economic resources within the region in an environmentally sound manner—on an equal footing. This, too, was divorced from any potential project that could constitute a major threat to fish and wildlife, or the public uses of them. In such an abstract situation, cooperative planning for conservation and development across fragmented land ownerships, which lack meaning for fish and wildlife, demanded help from the better angels of our nature to look first to fish before looking at ownership. However, when these angels failed to appear, so too did cooperative planning.

When cooperative planning failed in 1984, the State adopted the 1984 BBAP that resulted in classifying or co-classifying all state land as habitat.^{See supra text accompanying notes 154–59.} The fact that DNR’s land use planning regulations lacked a land classification category for land used primarily for subsistence hunting and fishing, when there is a public recreation land category for land use primarily for sport hunting and fishing, had little or no practical effect because the habitat classifications required that virtually all the affected land be retained and managed as habitat.

However, from 2005 to the present, DNR’s 2005 Bristol Bay Area Plan flies in the face of all the prior history. This is most evident in the falsehoods DNR employs in its 2005 BBAP: (1) it uses primarily marine-related “fish and wildlife categories” to avoid identifying inland uplands far from the marine environment as habitat, which thereby eliminates ninety-three percent of the prior habitat classifications on inland uplands, including lands at and in proximity to mineral deposits; (2) it applies the habitat designation only to the beds of waters navigable for purposes of title, to eliminate prior habitat classifications on non-navigable waters such as those within the Pebble mining claims; and (3) it defines “recreation” to exclude sport hunting and fishing, to eliminate most prior classifications of land as public recreation land, including at the Pebble mining claims.^{See supra text accompanying notes 182–211. Based on the 2005 BBAP, NDM asserts that the land is “specifically designated for mineral exploration and development.” Path to Development, Northern Dynasty Minerals, http://www.northerndynastyminerals.com/ndm/Path.asp (last visited Jan. 11, 2012). That designation rests upon tenuous devices such as (1) arbitrarily using primarily marine criteria to avoid identifying, designating and classifying inland uplands as habitat, (2) arbitrarily defining “recreation” to exclude sport hunting and fishing, and (3) arbitrarily applying the law of title navigability to determine whether anadromous streams qualify as habitat.}

These false methods demonstrate the difficulty of permitting a mine like Pebble mine in a place like the Bristol Bay drainages without putting “fingers on the scale,” even though doing so is contrary to the State’s long history of recognition that such mines and ill-placed roads in the Bristol Bay drainages can adversely affect fish, wildlife, and public uses of them. Moreover, when the 2005 BBAP reduced the acreage designated and classified as habitat by ninety-three percent, and reduced the public recreation land acreage by eighty-seven percent, then the lack of a "subsistence" land use classification category assumes critical significance for subsistence and recreational users alike because both groups benefit from any land classification that retains and manages land for any reason related to hunting, fishing, or habitat.

Two facts may explain why DNR’s 2005 BBAP departs from the prior history. First, by 2005, DNR had recognized both the potential of a Pebble mine and the difficulty of permitting it. So, the 2005 BBAP uses methods that put fingers on the scale, as said above. Second, in November 2002, Alaskans had elected Frank Murkowski as governor. He had been a banker, Alaska’s Commissioner of Economic Development, and President of the Alaska Chamber of Commerce prior to serving as Alaska’s junior U.S. Senator from 1981 to 2002. He served in the Senate after Congress enacted ANCSA in 1971, the Cook Inlet Land Exchange in 1976, and ANILCA in 1980.^{See Frank H. Murkowski, Biographical Directory of the United States Congress, http://bioguide.congress.gov/scripts/biodisplay.pl?index=m001085 (last visited Jan. 24, 2012).} He had not been a state official involved in the State’s history of efforts to conserve the Kvichak and Nushagak drainages from 1967 to 2000,^{See supra text accompanying notes 30–33, 37–40, 73, 94–101, 128–30, 138, 151–52, 154–67, 169–81 (e.g., (1) State support for BLM’s 1967 classification, (2) S. Res. 14, 6th Leg. (Alaska 1970), (3) S.B. 384, 6th Leg., 2d Sess. (Alaska 1970), (4) S.J.R. 4, 7th Leg. (Alaska 1971) and H.J.R. 16, 7th Leg. (Alaska 1971), (5) enactment of the Bristol Bay Fisheries Reserve, (6) State acquisition of uplands to protect fish through Cook Inlet Land Exchange, (7) State support of a Bristol Bay Cooperative Region in ANILCA, (8) the 1984 BBAP, (9) MCO No. 393, and (10) the Policy for the Management of Sustainable Salmon Fisheries).}   or a federal official involved in the federal history of such efforts from 1967 to 1980.^{See supra text accompanying notes 25–29, 32, 42–61, 67–71, 74–80, 127–34, 140–45, 150–51 (e.g., (1) BLM’s 1967 classification, (2) BLM’s 1971 Iliamna Unit Resource Analysis, (3) ANCSA, § 17(d)(2), (4) the Cook Inlet Land Exchange, (5) the nearly decade-long history and enacted provisions of ANICLA).} Because he was never part of the state or federal history, and apparently understood neither, he became the antithesis to Blackstone’s “time whereof the memory of man runneth not to the contrary.”^{1 William Blackstone, Commentaries *67.} That is, the false methods of the 2005 BBAP for which Governor Murkowski is ultimately responsible run contrary to history. Similarly, any public official who is contrary to the entire history becomes vulnerable to all who know it. Therefore, history fosters stability of a 404(c) determination across future federal administrations.

B. Resolving Issues Raised by Metallic Sulfide Mines and Fragmented Land Ownership

From 2005 to the present, the prospect of mining metallic sulfide deposits in these drainages has brought the state government (in the form of its 2005 Bristol Bay Area Plan) and the federal government (in the form of the EPA’s watershed assessment and potential use of Section 404(c)), closer to making practical concrete decisions between the “contending kings”—fish and minerals. Such state and federal actions, although short of agency adjudications of specific permit applications, do relate to specific, potential metallic sulfide mines, such as Pebble mine, and their effects on fish and wildlife habitat.

Viewed from historical perspective, the State’s 2005 BBAP appears to be, in several respects, an aberration—an action completely inconsistent with all that had gone before. It departs from all the State's prior efforts, lasting from 1967 to 2005, through which the State gave primary recognition to valuable commercial and sport fishing resources, acquired uplands in the Kvichak and Nushagak drainages including at Pebble to protect fish, and adopted measures to protect fish and fisheries.

Conversely, and also viewed from historical perspective, EPA’s scientific assessment and potential use of Section 404(c) are consistent with the long history of common federal and state efforts to protect inland uplands related to fisheries in the Kvichak and Nushagak watersheds, particularly in the context of fragmented land ownership.^{As said previously, EPA's authority under Section 404(c) is well-tailored to protecting fish, wildlife, and waters which disregard land ownership boundaries. See discussion supra Intro.} Moreover, EPA’s assessment and potential use of Section 404(c) are consistent with state policy, that is, the following “principles and criteria” in the State’s Policy for the Management of Sustainable Salmon Fisheries:

(1) “[S]cientific assessments of the alterations on salmon populations should be conducted before approval of a proposal . . . .”^{Alaska Admin. Code tit. 5, § 39.222(c)(1)(A)(ii) (2011) (emphasis added).}

(2) “[A]ll essential salmon habitat in marine, estuarine, and freshwater ecosystems and access of salmon to these habitats should be protected; essential habitats include spawning and incubation areas, freshwater rearing areas, estuarine and nearshore rearing areas, offshore rearing areas, and migratory pathways . . . .”^{Id. § 39.222(c)(1)(A)(iv) (emphasis added).}

(3) “[S]almon habitat in fresh water should be protected on a watershed basis, including appropriate management of riparian zones, water quality, and water quantity . . . .”^{Id. § 39.222(c)(1)(A)(v) (emphasis added).}

(4) “[S]almon stocks should be protected within spawning, incubating, rearing, and migratory habitats . . . .”^{Id. § 39.222(c)(1)(B) (emphasis added).}

(5) “[I]n the face of uncertainty,” “essential habitats shall be managed conservatively” through “a precautionary approach involving the application of prudent foresight that takes into account the uncertainties in salmon fisheries and habitat management,” “prior identification of undesirable outcomes and of measures that will avoid undesirable outcomes,” and this “precautionary approach should be applied to the regulation of activities that affect essential salmon habitat.”^{Id. § 39.222(c)(5) (emphasis added).}

As governments and citizens face increasingly concrete decisions having real consequences related to metallic sulfide mining in the Kvichak and Nushagak drainages, informed decisions will require that governmental officials and the public (1) know and understand the facts of what is certain, (2) receive the best information available about what is uncertain, and (3) use methods of addressing uncertainty, such as the “precautionary approach” embraced by the Board of Fisheries^Id. and the 404(b)(1) Guidelines which EPA uses in making Section 404(c) determinations, including prior to permit applications.^{See supra note 12 (EPA considers relevant portions of the 404(b)(1) Guidelines in determining “unacceptable adverse effect”). The Guidelines, at 40 C.F.R. § 230.12(a)(3)(iv) (2011), provide that a discharge must be specified as failing to comply with the Guidelines where “[t]here does not exist sufficient information to make a reasonable judgment as to whether the proposed discharge will comply with these Guidelines."} This approach reflects the time-honored wisdom of the principle of “Socratic ignorance.” It is the principle that it is wiser to know what one does not know, than it is to believe that one knows what one does not know.

Here, the principles of Socratic ignorance, the precautionary approach, and the 404(b)(1) Guidelines serve everyone involved—regardless of whether one is a proponent or opponent of metallic sulfide mines in these drainages, or a federal, state, local, or tribal official, or a member of the greater public. All share a need to understand what is known and the limitations of what is uncertain about such mines. That explains why, throughout this history, the state and the federal governments have generally given “primary recognition” to the fishery resources of the Bristol Bay area, ahead of mining, roads, and intensive development that could jeopardize the fisheries, and acted accordingly.

To be decisive about whether metallic sulfide mining and perpetual care in the Kvichak and Nushagak drainages are likely to have an “unacceptable adverse effect,” EPA should elucidate what is known, and use the precautionary approach of the 404(b)(1) Guidelines in evaluating what is uncertain, in order to identify for purposes of Section 404(c) what is reasonably likely to occur over time.^{EPA would be wise to incorporate the precautionary approach or principle into a Section 404(c) document. That approach or principle can be useful for (1) determining whether an application meets the restrictions imposed by a Section 404(c) determination, and (2) establishing a high standard for determining whether to modify a Section 404(c) determination once it is in place, and thereby improve the stability of the Section 404(c) determination.} Doing so is consistent with the regulatory definition of “unacceptable adverse effect,” which is stated in terms of an impact which is “likely” to result in “significant degradation” of resources and uses protected by Section 404(c).^{40 C.F.R. § 231.2(e) (2012).}

As EPA has stated in the preamble to its Section 404(c) regulations,^{Denial or Restriction of Disposal Sites; Section 404(c) Procedures, 44 Fed. Reg. 58,076 (Oct. 9, 1979). Although the Pebble Limited Partnership has spent substantial funds exploring the Pebble claims, neither it nor others have done so with respect to other metallic sulfide deposits allegedly in the vicinity. Conversely, if EPA were to wait for PLP to apply, then PLP (and in effect all claimants) will control the timing of future events, and EPA will have taken a piecemeal approach. In that event, PLP and others will remain in the uncertain position they are in now with respect to other deposits and Section 404(c). Thus, simply waiting is counter-productive to a comprehensive approach, and invites Section 404(c) issues to occur repeatedly in the future if PLP or others seek to develop their mining claims. It is difficult to envision a more appropriate circumstance for “advance prohibition” than this concrete situation in the Bristol Bay drainages. Recalling EPA’s explanation in the 1979 preamble to the final Section 404(c) regulations, supra note 13, is informative. What was abstract “theory” then is specific now, because the magnitude of “X” in the Kvichak and Nushagak drainages is huge. See supra note 13.} using Section 404(c) proactively, prior to permit applications, facilitates comprehensive wetlands conservation and planning by developers and by industry so that they can avoid frustrating situations in which someone spends time and money developing a project that is inappropriate, and thus should not be permitted. However, because a Section  404(c) determination is an executive branch action, it is short of more comprehensive land use planning for conservation and development across land ownership boundaries ignored by fish and wildlife, and it cannot address the status or validity of mining claims for metallic sulfides that may—practically and legally speaking—simply be undevelopable. One inescapable fact is that after years of efforts, the Pebble Limited Partnership has yet to produce a design for mining the Pebble deposit safely.

If these mining claims ultimately cannot be developed safely, then government (state or federal) should challenge their validity.^{For a mining claim to be valid, it must ultimately pass the “marketability test.” See United States v. Coleman, 390 U.S. 599, 602–03 (1968). This test requires the claimant to show that the minerals can be extracted at a profit, id., which may not be possible if they cannot be developed safely.} And if a compensable interest is in dispute, then either government should seek a negotiated governmental purchase. Such a purchase would presumably be at a portion of invested value if the claims are undevelopable. Nevertheless, because any government would be ill advised to purchase existing mining claims on ground that could be restaked with new mining claims, such a purchase would depend on the Alaska Legislature enacting legislation that (1) closes the area (or much of it as BLM did and the State supported in 1967) to new mining claims, at least for metallic sulfides; (2) establishes the purposes for which the land will be managed, by requiring that it be managed to protect fish and game habitat, and to protect public uses of fish and game; and (3) allows other uses, such as mining preexisting claims, only if compatible with these purposes, so as to give “primary recognition” to the fish, game and public uses of them.

The facts of what is known (e.g., about the fish and wildlife and uses of them) and what is likely (e.g., the risks posed by metallic sulfide mining) should eventually demand such legislation, because the risks are now more concrete than in the past. In the event of such legislation, both the federal and state governments should participate in funding a buyout of existing mining claims on the metallic sulfide deposits.

Furthermore, for at least five reasons, comprehensive and cooperative land use planning across land ownership boundaries may be more likely to succeed now in the Kvichak and Nushagak drainages, than in the early 1980s when such planning was attempted for all the Bristol Bay drainages. First, the land ownership pattern in the Kvichak and Nushagak drainages has reconsolidated to some extent. It has evolved from (1) nearly total federal ownership before 1971, to (2) a highly fragmented pattern of federal land, state selections, and withdrawals for Native corporate selections in the 1970s, when the Iliamna refuge would have been fifty percent federally owned and fifty percent nonfederal inholdings, to (3) overwhelmingly state ownership of uplands, substantial Native ownership along some rivers, and decreased federal ownership. This reconsolidation may facilitate cooperative comprehensive land use planning.

Second, metallic sulfide mining presents concrete issues involving direct, indirect, and cumulative impacts. These issues bring focus and demand governmental responses, based on what is known and what is likely. This is a significant contrast to previously abstract issues divorced from any particular project. The concrete nature of issues presented by metallic sulfide mining may also facilitate comprehensive planning.

Third, the issues are now focused specifically on the Kvichak and Nushagak drainages, rather than on all the Bristol Bay drainages as occurred in the early 1980s. The current, narrower, geographic focus may also facilitate cooperative comprehensive planning in these two drainages.

Fourth, the role of tribes in cooperative land use planning is potentially much greater and more helpful than it was in 1980, when Congress enacted sections 1201 and 1203 of ANILCA, which afforded a role for Native regional corporations, but none for tribes. Since then, two events have occurred that offer a potential role for tribes. (1) In 1994, Congress enacted the Federally Recognized Indian Tribe List Act, which requires the Secretary of the Interior to publish annually in the Federal Register a list of federally recognized tribes.^{25 U.S.C. § 479a-1 (2010).} This has led to listing Native tribal entities in Alaska for virtually every Native village in Alaska, including those in the Kvichak and Nushagak drainages.^{See Indian Entities Recognized and Eligible to Receive Services, 75 Fed. Reg. 60,810, 60,813–14 (Oct. 1, 2010).} (2) On November 6, 2000, President Clinton issued Executive Order 13,175.^{Exec. Order No. 13,175, 65 Fed. Reg. 67,249 (Nov. 6, 2000).} It requires all federal agencies to consult and coordinate with tribes on “policies that have tribal implications.”^Id. Land use is such a policy. Thus, federal participation, either as a land manager such as DOI, or regulatory agency such as EPA, in any future cooperative land use planning process for the Kvichak and Nushagak drainages will trigger the consultation and coordination requirements of Executive Order 13,175 and the government-to-government relationship that the United States has with tribes.^Id. This also may facilitate public cooperative comprehensive land use planning among governmental entities, Native corporations, and associated tribes.

Fifth, perhaps most important, local interests in these drainages, such as Native corporations, tribes, and others, have moved forward with cooperative conservation efforts, and have recognized that fragmented land ownership and management is problematic for salmon. The Native village corporation for Dillingham, Alaska, that is, Choggiung Ltd., spearheaded the formation of the Nushagak-Mulchatna-Wood-Tikchik Land Trust, which has focused on acquiring or conserving Native allotment lands at critical locations on rivers and that would otherwise be sold.^{See Our Mission, Nushagak‑Mulchatna Wood‑Tikchik Land Trust, http://www.nmwtlandtrust.org/who/mission.php (last visited Jan. 11, 2011).} The Southwest Alaska Salmon Habitat Partnership is a “Fish Habitat Partnership” which operates through a steering committee composed of Native, governmental, and conservation representatives^{The steering committee is composed of representatives of the Nature Conservancy, the Nushagak-Mulchatna/Wood-Tikchik Land Trust, the U.S. Fish & Wildlife Service, the Alaska Department of Fish & Game, the Conservation Fund, the Bristol Bay Native Association, and the Bristol Bay (Regional) Native Corporation. See Southwest Alaska Salmon Habitat Partnership, Strategic Conservation Action Plan for Bristol Bay Watersheds 3 (2011), available at http://www.swakcc.org/documents/SWASHP%20Strategic%20Plan%20-%20Draft%20Final.pdf.} under the National Fish Action Plan, which is a program that joins governmental agencies with nongovernmental interests to protect fish habitat.^{See National Fish Habitat Action Plan, http://fishhabitat.org/ (last visited Jan. 23, 2012).}

Since 2001, the Southwest Alaska Salmon Habitat Partnership has acquired approximately 94,000 acres of high value salmon habitat for conservation throughout southwest Alaska at the cost of $14.9 million, including a 21,000-acre conservation easement on village corporation lands in the Wood-Tikchik State Park.^{See Southwest Alaska Salmon Habitat Partnership, supra note 242, at 9.} The Native Village of Koliganek formed its own salmon reserve on village corporation lands.^{See Bay Times Staff, Koliganek Creates Wild Fish Reserve, Bristol Bay Times, Dec. 3, 2009, at 3,http://www.nature.org/ourinitiatives/regions/northamerica/unitedstates/alaska/baytimesknlreserve12-3-09.pdf.} In addition to these direct means to conserve uplands and riparian lands important for salmon, the tribes, local governments, and Native corporations formed the Nushagak-Mulchatna Watershed Council in 1998. It has produced a “Nushagak Watershed Strategic Conservation Plan,”^{Nushagak-Mulchatna Watershed Council, Nushagak River Watershed Traditional Use Area Strategic Conservation Plan (2007), available at http://www.nature.org/idc/groups/webcontent/@web/@alaska/documents/document/prd_017469.pdf.} and “Standards and Practices for Environmentally Responsible Mining in the Nushagak River Watershed,” including a standard that no mine should be permitted that requires perpetual care “to avoid environmental contamination.”^{Nushagak-Mulchatna Watershed Council, Standards and Practices for Environmentally Responsible Mining in the Nushagak River Watershed 6 (2011).}

These successful local efforts indicate that the federal and state governments, which failed at cooperative planning in 1984, should look beyond the immediate situation and Section 404(c) to the future. As part of its watershed assessment and any Section 404(c) determination, EPA should state the limitations of executive branch action under Section 404(c) and the need for all interests to reinvigorate the type of cooperative land use planning and conservation efforts sought originally by Governor Hammond and by Congress in Section 1203 of ANILCA. Reinvigorating that type of process may provide (1) a basis for recommending state legislation necessary to achieve a negotiated purchase by the federal and state governments of existing metallic sulfide claims, based on some portion of invested value, and (2) a decisiveness about whether fish come first, whether metallic sulfide mining is incompatible with fish and other public interests, and whether the precautionary approach helps to address what BLM long ago saw as the risk of incremental, “seemingly minor” habitat losses, which cumulatively have great effect.

If EPA invokes Section 404(c) and concludes that metallic sulfide mining and perpetual care are incompatible with protecting habitat and public uses of fish and game that are subject to protection under Section 404(c), then EPA’s action may lead to an opportunity for government and the public to achieve comprehensive planning for conservation and development across multiple interests and land owners in the Kvichak and Nushagak drainages. Then, the increasingly concrete nature of the issues, now before governments and the public because of the prospect of metallic sulfide mining, should help to get the balance between conservation and development “right” in these drainages, where fish and wildlife traverse property boundaries. This may require a mixture of cooperative planning, federal assistance, state commitment, interest group participation, tribes working with Native corporations, and incentives for village corporations to participate and conserve riparian lands, as Koliganek has done.

III. Conclusion

In this entire history, three points are clear. First, except for the aberrational 2005 BBAP, the state and federal governments, and many local interests, have long shared and acted upon a common understanding that it is necessary to conserve uplands to protect fish in the Kvichak and Nushagak drainages.

Second, the opportunities for successful governmental action to do so, across property boundaries ignored by fish and wildlife, do not happen often. Hence, EPA’s opportunity to use Section 404(c) across such boundaries is probably the best opportunity to conserve important uplands that are within Section  404(c) jurisdiction in these drainages (e.g., anadromous and non-anadromous waters and wetland riparian zones), since the 1967-to-1971 period, when the federal government still owned nearly all the land. In fact, given the various large, metallic sulfide deposits in the area, it is hard to envision that these drainages can remain as productive as they are, absent a 404(c) determination. EPA would be wise to understand that making a 404(c) determination stable across future administrations requires more than science. Doing so also requires understanding history, law in addition to 404(c), even literature, and being able to use all to conserve these drainages.

Third, nothing in this entire history draws the distinction between conservation and development in these drainages more clearly than this choice:

(1) Should government “stay the course” of the many prior efforts by the state and federal governments to give “primary recognition” to fish, wildlife, and public uses in these drainages by invoking Section 404(c) to restrict or prohibit mining the metallic sulfide deposits?; or

(2) Should government depart from that course by permitting such mines, based substantially on the radical aberrations of the 2005 BBAP?

This choice between two “contending kings” “unmasks falsehood,” “brings truth to light,” and “turns the giddy round of Fortune’s wheel.” The choice is easily understood, concrete, not abstract or divorced from an actual potential project. This choice reflects different ways of dealing with uncertainty and the limitations that agencies and stakeholders face regarding metallic sulfide mining in the Kvichak and Nushagak drainages. This choice draws out the fundamental distinction between erring on the side of conservation, and erring on the side of development. And unlike previously abstract choices, this choice does not require an appearance by the better angels of our nature.