Federal Government Failed to Disclose Status of Contaminated Lands Conveyed Under ANCSA
The Alaska Native Claims Settlement Act (ANCSA), which passed in 1971, would become the largest land claims settlement in U.S. history and the first settlement of its kind between Native American people and the federal government. ANCSA settled Alaska Native aboriginal land claims in exchange for title to 44 million acres of land, a $963 million cash payment from the federal treasury and additional oil revenue sharing. In an effort to enable statewide economic development, the act also created 200 village corporations and 12 Alaska-based regional corporations, including CIRI. The first ANCSA conveyance occurred in 1974. To date, approximately 36 million acres have been conveyed.
A Legacy of Pollution
What Alaska Native corporations (ANCs) didn’t know at the time was that hundreds of contaminated sites would be conveyed to them by the federal government under ANCSA – including 650 “known” tracts of land, according to a 1998 U.S. Department of the Interior report. The sites had been contaminated under ownership and/or responsibility of the federal government. Most were military installations, relics of World War II and the Cold War. The types of waste and toxic materials contained within these sites include arsenic, asbestos, explosives, lead, mercury, pesticides and polychlorinated biphenyls (PCBs).
PCBs have been linked to cancer and were banned in the U.S. in 1979. Scientific tests have shown that fish and other marine life in certain areas of Alaska are loaded with PCBs, and PCB levels in residents are multiple times higher than in most other places in the nation.
Federal officials claim they were unaware the land was contaminated before conveyance.
In the 1990s, the Alaska Native community began raising concerns, citing health, safety and economic impacts on residents. In response, the Department of the Interior released its 1998 report, which acknowledged the unjustness of conveying contaminated lands to ANCs in settlement of aboriginal rights. The report put forth six specific remedies:
- Establish a forum for ANCSA landowners and federal, state, local and tribal agencies in Alaska to exchange information and identify priorities.
- Create and maintain a comprehensive interagency inventory database of contaminated sites in Alaska.
- Apply U.S. Environmental Protection Agency (EPA) policies to exempt ANCs from landowner liability for prior contamination.
- Report back to Congress on sites that were identified and not covered by existing programs (“orphan sites”) and determine whether an additional federal program was necessary to address those sites.
- Review/revise relevant policies covering existing programs governing cleanup of contaminated ANCSA lands.
- Through the EPA Tribal assistance program, train local residents to participate in cleanup programs.
The report stated that “the Department of the Interior will coordinate implementation of these recommendations, although other agencies such as EPA and the Corps of Engineers may take the lead in certain aspects of the recommendations.”
A History of Inaction
In 2016, the Department of the Interior Bureau of Land Management (BLM) submitted an update to the 1998 report, acknowledging the BLM had not acted on remedies 3, 5 and 6 in the original report. It included three additional recommendations for a cleanup plan:
- The Alaska Department of Environmental Conservation (ADEC) should finalize the comprehensive inventory and implement a remedial action process.
- The establishment of a formal contaminated lands working group.
- The initiation of a site cleanup process.
According to the Alaska Native Village Corporation Association (ANVCA), a nonprofit that advocates on behalf Alaska Native village corporations, in stark contrast to the Department of the Interior’s willingness in 1998 to take a leadership role to facilitate cleanup of ANCSA contaminated lands, the 2016 update proposed that ADEC and EPA oversee cleanup of the sites.
“The 2016 update basically said that they (BLM) had done nothing, and were responsible for nothing,” said Hallie Bissett, a CIRI shareholder and Board member who serves as ANVCA’s executive director.
Nearly 200 of the 650 contaminated ANCSA sites identified in the 1998 report were Formerly Used Defense Sites (FUDS), meaning they were previously owned, leased, possessed or used by the U.S. military. Environmental cleanup at FUDS is conducted by the U.S. Department of Defense in accordance with the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), also known as Superfund. However, under CERCLA, the Department of Defense is not responsible for cleanup of privately owned FUDS, which includes land conveyed to tribal entities under ANCSA. CERCLA also contains a petroleum exclusion, placing the onus of cleanup of all petroleum and related contaminants on the landowner.
In March 2017, Sarah Lukin, a board member of Afognak Native Corp. and a member of ANVCA, was invited by the chair of the U.S. Senate Committee on Environment and Public Works to testify at a congressional hearing on contaminated lands.
“Sadly, under CERCLA, Alaska Native corporations may be held responsible for the cleanup of pre-existing contamination,” Lukin stated. “Let me be clear: under ANCSA, Alaska Native people gave up 88 percent of our traditional lands. In exchange, we received, in part, contaminated sites that we may be legally liable for. [The 2016] report to Congress confirmed that there are still 537 sites that require remediation on ANCSA lands. Of the sites identified, the majority are Department of Defense. One hundred twenty of them are FUDS. Nearly 100 additional contaminated sites are not in a cleanup program currently. Almost all of these sites are within two miles of Alaska Native villages.”
In all, ANVCA estimates $6 billion in cleanup costs to ANCs.
“We’re Starting to See Real Movement”
Based on information provided by the State of Alaska Department of Environmental Conservation, as of May 2018, the total number of contaminated sites on CIRI land interests is 112. Of those, 74 have a status of cleanup complete and 38 have a status of “open.”
One of ANVCA’s primary areas of advocacy is to work with ANCs, state and federal agencies and other stakeholders to develop criteria to prioritize remediation of contaminated ANCSA sites. Its federal priorities include protecting ANCs from legal liability claims, addressing U.S. sovereign immunity and petroleum cleanup and requiring an annual agency report to Congress on the status of cleanup efforts. At the state level, it supports passing/amending legislation that would provide relief for ANCs from liability for damages and costs associated with ANCSA contaminated lands.
“This has been our key issue for six years, and we’re starting to see real movement,” Bissett said.
Enacted March 23, 2018, the Brownfields Utilization, Investment and Local Development (BUILD) Act amended CERCLA by providing liability relief for ANCs that received contaminated land from the federal government. It also removed a hurdle for sites with petroleum contamination by allowing grants to assess and clean up petroleum-contaminated sites that are not required to be remediated under other programs. “BUILD lifted the legal liability, which allows us to chip away at this issue,” Bissett said.
With U.S. Sen. James Inhofe (R-OK) as sponsor, a legislative fly-in group – comprised of 30 participants representing Alaska Native village corporations, the ANCSA Regional Association and the State of Alaska – ultimately secured $500,000 for site evaluations. And in April, the Alaska Senate unanimously passed a bill that released ANCs from liability for damages and costs resulting from pre-contaminated lands conveyed to them through ANCSA.
“Now ANCs are no longer legally liable for the contamination, and there’s actually money to evaluate the sites and begin cleanup,” Bissett said.
On the state level, a formalized working group, which includes Jason Brune, senior director, CIRI Land and Resources, has begun prioritizing which sites should be cleaned up first.
“Ultimately, our goal is to get the land cleaned up so its suitable for developmental or subsistence use,” Bissett said. “This is not an issue you can ignore – it’s right in our back yard. These are areas where people hunt, fish, grow their own food, gather drinking water and let their children play. It’s been 45 years, but we’re starting to see progress.”
For more information, including an interactive ANCSA contaminated lands timeline and links to the 1998 and 2016 Congressional reports, visit www.anvca.biz.
