State releases draft of amended Bristol Bay land use plan

Groups opposing Pebble Mine are not happy with an amended 2005 Bristol Bay Area Plan released Jan. 4 by the Department of Natural Resources.

The amended land use plan is the result of a 2009 joint lawsuit filed in state court by Trout Unlimited, the Alaska Independent Fisherman’s Marketing Association and five Bristol Bay area village and tribal councils against the Department of Natural Resources, or DNR.

The 2005 Bristol Bay Area Plan designated use for more than 19 million acres of land in the Bristol Bay region.

Trout Unlimited Alaska Director Tim Bristol said an agreement was reached in August between the two parties to settle the dispute rather than continue in court. The settlement outlined proposed changes to the Bristol Bay plan that DNR agreed to consider.

“We just thought that it was better to go out to the public again and gather as much information and disseminate as much information as possible and leave it up to DNR to do the right thing,” Bristol said.

DNR Deputy Commissioner Ed Fogels said the lawsuit was an unnecessary avenue to attempt to make changes to the 2005 Plan because all area plan adjustments go through what he called “administrative channels” that give an opportunity for public input.

A 90-day public comment period on the amended plan is now open until April 4.

“We think the State has a lot more work to do to get this thing right,” Bristol said.

Fogels said DNR takes public comments seriously.

“I venture to say it’s very, very rare that we go through a public comment period and don’t make any changes (to a plan) as a result of the comments,” Fogels said.

The petitioners will use take full advantage of the comment window, Bristol said, and assert their concerns “vigorously.”

Pebble Limited Partnership joined DNR as a voluntary defendant intervenor against the suit. Officials at Pebble declined to comment on the amended BBAP.

According to court documents, the original complaint included eight “causes of action.” It alleges the DNR did not follow its own regulations in defining wildlife habitat land and that the Area Plan or, BBAP, land classifications that include Pebble planning units “violate sustained yield and are arbitrary, capricious and abuse discretion.”

DNR defines wildlife habitat as “land which is primarily valuable for fish and wildlife resource production.”

The 2005 BBAP was a revision of a 1984 plan. The 1984 BBAP classified about 11.5 million upland acres as wildlife habitat land. In 2005, land classified as wildlife habitat was revised to 786,000 acres, a 93 percent reduction. All of Pebble’s planning units were reclassified from habitat to mineral land under the 2005 BBAP.

The amended BBAP reclassifies 723,000 acres of land primarily in the upper Nushagak and Mulchatna river drainages to wildlife habitat. Plan changes turn land next to the mineral land in the Koktuli River valley, a Mulchatna tributary, to wildlife habitat. The changes do not alter any of the mineral land designations made in 2005 surrounding the Pebble area.

The complaint states that 9.1 million acres co-classified as habitat and recreation land prior to 2005 were changed to resource management land. Habitat and recreation areas are required to be retained in public ownership; resource management lands are not.

Land use designation was changed on such a large area in 2005 because the 1984 BBAP forced land managers to work with a “black map,” Fogels said.

What resulted, he said, was the 2005 BBAP that focused on designating land for its greatest value.

“It’s indentifying key resources on that land. If the Pebble area is staked with mining claims and there’s obviously high mineral values there, then (miner land) is an appropriate classification for that land,” Fogels said.

He also noted that just because land is designated a certain way doesn’t mean it must be used for that purpose.

Tom Tilden, chief of the Curyung Tribal Council in Dillingham said in a press release that DNR needs to reach out further than a comment period.

“DNR must start listening to the people, and it should hold multiple public hearings in the region before the end of the public comment period. Salmon and wild game are the lifeblood of Bristol Bay communities,” Tilden said.

A DNR press release announcing the amended BBAP stated that the request to “reclassify nearly all of the Bristol Bay planning area for wildlife habitat and reclassify much of the planning area to public recreation” was denied. Additionally, it stated the principle of and area plan is to offer “opportunities for multiple use of state land, not just one or two uses.”

That portion of the press release was “highly inaccurate,” Bristol said. The goal of the reclassification request was to establish “even footing” between fish and wildlife and related activities and mining.

According to Bristol, DNR had tilted the playing field in favor of mining with the 2005 BBAP and the petitioners wanted to return to the 1984 version.

In the amended plan DNR notes that the 1984 BBAP used 22 management units to cover over 19 million acres of upland and tidelands, while the 2005 BBAP is broken into 276 management units. Accordingly, designated use classifications are more specific in the 2005 version.  Much of the land classified as wildlife habitat and public recreation areas in the 1984 plan was co-classified for other uses such as forestry, settlement, and transportation corridors, according to DNR.

The petitioner’s third cause of action requested that the requirement for anadromous, or salmon, streams be navigable in order to qualify as wildlife habitat be removed from the 2005 BBAP.

That request was denied in the amended version.

It states: “DNR uses navigability and the presence of anadromous or high-value resident fish in determining those streams to classify as wildlife habitat, but the habitat values of all anadromous streams, navigable and non-navigable, are protected through other Plan provisions.”

Bristol said the amended plan doesn’t properly explain the other protections.

“I don’t think there’s enough protection in there for fish. Salmon end up going places that aren’t necessarily accessible by boat. The fact that you just stop protections where the boat would run aground doesn’t make any sense,” he said.

Fogels said even though DNR may not list the small anadromous streams as habitat, any development done that might affect them requires permitting from Department of Fish and Game.

DNR granted a request to add sport hunting and fishing to the definition of recreation activity. It also adjusted BBAP language to clarify that wildlife habitat includes an entire navigable water body, not just spawning and rearing grounds.

Streams in Mineral Closing Order 393 are now classified as wildlife habitat if they weren’t already. This includes the Nushagak and Mulchatna river drainages and those flowing into Iliamna Lake. A Mineral Closing Order closes the designated area to mineral entry.

Elwood Brehmer can be reached at [email protected].