The new revised Tongass Land Management Plan ( TLMP ) includes a recommendation that 32 rivers be added to the National Wild and Scenic Rivers ( WSR ) system. It takes an Act of Congress to actually designate a river as "wild and scenic" under the law, but once a river is nominated by the Forest Service, it is treated by the agency as if it were so designated to "preserve the unique character of the river" that the agency believes makes it eligible under the law. So, for all practical purposes, a Forest Service nomination is a de facto designation of any river as "wild" or "scenic," and all the related restrictions on other uses come into play right away.

AFA objects

In its comments on the Revised Supplement to the Draft Environmental Impact Statement ( RSDEIS ) in 1996, the Alaska Forest Association stated its opposition to all the Forest Service’s nominations of wild and scenic rivers. Sufficient wild rivers of high scenic and recreation value are preserved and available in the nearly 3 million acres of wilderness that lie within the geographic boundaries of the Tongass National Forest. In AFA’s appeal of the final revised TLMP , filed September 24, 1997, the Association reiterated its opposition to the WSR nominations.

Potential for conflict

The potential for conflict exists with many of the WSR nominations respecting litigation between state and federal governments over state control of navigable waterways. Conflicts also exist over potential rights of way on or across rivers which affect the international boundary with Canada, including the possibility that the proposed Orchard Creek WSR will eventually be used to prevent the development of a Bradfield Canal overland access route to southern Southeast Alaska. The Revised Supplemental Final Environmental Impact Statement ( RSFEIS ) gives insufficient explanation of how the WSR designations would affect egress and ingress between the United States and Canada, and how the designations would affect treaties by which the United States is still bound between Russia and Great Britain, guaranteeing Canada river access in perpetuity.

Last minute, illegal additions

In the TLMP Record of Decision (ROD), signed by the Regional Forester on May 23, 1997, the Forest Service added four new rivers to its WSR nominations. No alternative seriously considered by the agency and available for public review and comment had ever included these four rivers. The decision to add these four rivers to the RSFEIS came so late in the game that they were added by an errata sheet issued in May along with the ROD. This action was in flagrant disregard of both the public interest and the Forest Service’s own planning regulations.

The four new nominations comprise 30 miles of river corridors which could remove one-quarter to one-half mile of commercial forest lands on each river side. The timing of the additions prevented the Forest Service from accurately analyzing the effects of these withdrawals on the Allowable Sale Quantity. The nomination of these four rivers therefore violated the National Environmental Policy Act (NEPA) as well as the Forest Service regulations.

Specific comments on each of the four rivers follow:

• Niblack Lakes and Streams

  Five (5) miles of the Niblack system on Prince of Wales Island are nominated by the ROD for Wild River designation.

  Adverse Impacts on Planned Development

  The Niblack WSR designation is expected to have an adverse impact on the operations of Alaska Forest Association members because it reduces tentatively suitable forest lands by 840 acres. The impact of this reduction will be direct because the lands around the Niblack system were designated either Timber Production or Modified Landscape under the RSFEIS prior to the Errata and the ROD. This makes it likely that the addition of the Niblack Wild River recommendation will adversely affect the allowable sale quantity ( ASQ ), and the impact cannot have been fully analyzed prior to issuance of the ROD, given the manner and timing of this addition.

  The area encompassed by the WSR recommendation for Niblack Lake and Streams, contains a mix of timber types, including both medium and high volume old growth. With available commercial forest land ( CFL ) reduced by the RSFEIS from 2.2 million acres under the old plan to 676,000 acres, every additional withdrawal, no matter how small, increases the likelihood that some company in the Alaska forest products industry will be unable to purchase sufficient national forest timber to meet its needs.

  An additional potential hardship on AFA member companies may result from the effect a WSR designation for the Niblack system will likely have on plans by Abacus Minerals Corporation (AMC) to develop its Niblack mining property which lies partially within the proposed Niblack Lakes and Streams WSR corridor. AMC holds both patented and unpatented claims within the Niblack WSR corridor, and on lands immediately adjacent to it. AFA members and other resource development businesses in the greater Ketchikan area are likely to benefit from AMC’s planned development of its Niblack properties and, conversely, will likely suffer lost opportunities if the property is not developed. Further details on these impacts are provided in the discussion of the proposed Kegan WSR in the next bullet.

  In the RSDEIS , all seriously considered alternatives designated the area surrounding the Niblack corridor for intensive mineral development as it was identified by the Bureau of Land Management ( BLM ). This designation reflected the locale’s well-documented mining potential and the fact that there are 6 patented and 246 unpatented mining claims in the area. This treatment in the RSDEIS led the public and affected claim holders to believe there would be no WSR recommendation for this river system.

  Niblack Unsuited for Wild River Status

  The inclusion of Niblack Lakes and Creeks in the Forest Plan recommendations for WSR system designation is not justified. The ROD states that the Niblack system "is listed by the State of Alaska as one of the 65 most important watersheds in Southeast Alaska for its fisheries values," (emphasis added). This statement is inaccurate and misleading. In actuality, the document in question says the Niblack system is one of 65 important watersheds for sport fishing," (emphasis added). Furthermore, the document is a list put together in February, 1977, after a very informal polling of various people by an employee of the Alaska Department of Fish and Game. It does not reflect a formal scientific analysis, nor does it reflect any recent analytical comparisons.

  The ROD states that the "Niblack system is an important producer of pink, chum and coho salmon . . . ." (ROD at A-7). This statement is based, in part, on the state’s catalog of anadromous streams which indicates that Myrtle Lake contains coho salmon, despite the fact that a 60' high falls located 300' upstream from the mouth of Myrtle Creek prevents salmon migrations upstream beyond that point. Whatever importance Myrtle Creek has for salmonid production is limited to the lower 300' reach of the stream, and cannot be used to justify WSR designation for the system as the ROD attempts to do.

  The RSFEIS discussion of the suitability of the Niblack system correctly includes indications that would favor a decision not to nominate the system for Wild and Scenic designation, contrary to the last minute decision to recommend it in the Errata and the ROD. Under Suitability Factor #1, the RSFEIS states that the system is a "valuable fishery," but that it "would not be considered unique to this geographic province" which commonly contains streams with outstanding fish values (13 of the 16 rivers). ( RSFEIS , Appendix E at E-439.)

  Under Suitability Factor #2, the RSFEIS notes "several encumbrances" including patented and unpatented mining claims within and around the Niblack system. Under Suitability Factor #3, the RSFEIS identifies increased access costs to existing mining claims and increased operating costs for mine development, possible preclusion of future location of mining claims, the removal from the timber sale schedule of projected timber harvests within the area, and a reduction by 840 acres of commercial forest lands from the available timber land base if the system were to be designated as a WSR . It is clear from the RSFEIS that recommendation of the Niblack system as a WSR would have an adverse effect on both timber development and mining activity.

  What the RSFEIS does not address are other factors affecting the suitability of Myrtle Lake for inclusion in the National Wild and Scenic Rivers System. Notably absent from the analysis is any reference to turn-of-the-century, mining related construction at Myrtle Lake. A water diversion tunnel was built for the Snowflake Claim to allow the construction of an on-site hydro-power facility and to supply water to the mine project. This man made feature would suggest against designation as a "wild" river under the National Wild and Scenic Rivers System criteria.

  Niblack Designation will add Costs to Tongass Management

  The RSFEIS states that implementation would also add at least $37,500 to Forest Service costs in the first five years. ( RSFEIS , Appendix E at E-439-441.)

• Kegan Lake and Streams

  Nine (9) miles of the Kegan system on Prince of Wales Island are nominated by the ROD for WSR designation.

  Adverse Impacts on Planned Development

  The Kegan designation is expected to have an adverse impact on the operations of AFA members because it reduces tentatively suitable forest lands by at least 860 acres. The area encompassed by the WSR recommendation for Kegan Lake and Streams, including Lake Luelia , contains a mix of timber types, including both medium and high volume old growth.

  Additional potential hardships on AFA member companies are suggested by the fact that a WSR designation on the Kegan system will very likely preclude the further development by AMC of its Niblack mining properties which lie within and adjacent to the proposed Kegan WSR corridor. AMC has spent more than $12 million in exploration work on the Niblack property over the past three years. Planned and possible expenditures are expected to run as high as $100 million over the next few years. If and when AMC moves into the development phase on its Niblack property, it is entirely possible that AFA member companies will bid on some phases of the development work. In any case, future mine development work on a project of this scale in such relative proximity to Ketchikan would provide residual benefits to other resource development and related industries based in the Ketchikan area, including AFA members.

  Kegan Unsuited for Wild River Status

  The inclusion of Kegan Lake and Streams in the Forest Plan recommendations for WSR system designation is not justified. The ROD states the Kegan system "has nationally significant fisheries, recreational, and scenic values" and that the "scenic values are outstanding." (ROD at A-7 (emphasis added).) Yet the RSFEIS states, "[ t]he scenery is typical for the area, but enhanced through the availability of the cabins." ( RSFEIS , Appendix E at E-414 (emphasis added).)

  Under Suitability Factor #2, the RSFEIS notes the presence of several encumbrances associated with Kegan Lakes and Streams. ( RSFEIS , Appendix E at E-414). These include a 160 acre Native allotment withdrawal and 25 acres of a patented mining claim owned by AMC, the rest of which lies outside the WSR corridor. Under Suitability Factor #3, the RSFEIS notes that the BLM has identified the area as having high potential for minerals development with a potential Gross-in-Place Value of up to $400,000 per acre. ( RSFEIS , Appendix E at E-414). The RSFEIS states that developing mining claims along the east shore of Lake Luelia could incur higher costs if the lake is designated a WSR . With reference to the AMC patented claim, the RSFEIS says, road construction and other mining activities could adversely affect the area’s primitive character. These factors constitute sufficient reasons not to recommend Kegan Lake and Streams for inclusion in the WSR system.

  The RSFEIS does not address the existence of man made features near the shore of Lake Luelia , specifically the adit and shaft for the Moira Copper prospect. The presence of these features constitute a substantive argument against inclusion of Lake Luelia under the criteria for a "wild" river in the WSR system since the watershed and shoreline are no longer "essentially primitive."

  Kegan Designation will add Costs to Tongass Management

  The RSFEIS states that implementation of the Kegan WSR would add at least $80,000 to Forest Service costs in the first five years. ( RSFEIS , Appendix E at E-415.)

• Gokachin , Mirror, Fish, Low Creeks

            &nbspThirty (30) miles of the Gokachin /Fish Creek system near Thorne Arm are recommended for WSR designation.

  Adverse Impacts on Planned Timber Sales

  The Gokachin /Fish Creek designation is expected to have an adverse impact on the operations of AFA members because it reduces tentatively suitable forest lands by at least 720 acres. Prior to the revised TLMP ROD, the timber sale schedule included several sales in the area of Gokachin and Fish creeks. These would be precluded by a WSR designation, therefore the addition of this system as a wild and scenic river will have a negative effect on the ASQ .

  Gokachin /Fish Creek Nomination Violates Private Property Rights

  Some potentially significant ownership issues are also raised by the recommendation of the Gokachin /Fish Creek system. Ketchikan Pulp Company ( KPC ), an AFA member, owns two tracts of land near the mouth of Gokachin Creek. One 44 acre tract lies entirely within the proposed WSR boundary. The other, smaller tract contains approximately 15 acres which lie within the proposed boundary, as well as 10 acres which are outside the boundary. The Ketchikan Gateway Borough also owns a 20-acre plot which is within the river corridor. A WSR designation on Gokachin Creek could have a significant impact on these private landowners, particularly regarding access. Indeed, the RSFEIS states that a WSR designation would prevent KPC from building an access road to its property, which could also impair its ability to harvest timber from the property. ( RSFEIS , Appendix E at E-380.)

  The NFMA regulations provide that the Forest Service notify and coordinate agency activities with landowners whose holdings lie within or are otherwise affected by the proposed action area:

  Forest planning activities should be coordinated to the extent practicable with owners of lands that are intermingled with, or dependent for access upon, National Forest System lands. The results of this coordination shall be included in the environmental impact statement for the plan as part of the review required in § 219.7(c). The responsible line officer may individually notify these owners of forest planning activities where it is determined that notice provided for the general public is not likely to reach the affected landowners. 36 CFR § 219.6(k) (emphasis added).

  KPC and the Ketchikan Gateway Borough each own tracts of land within the Gokachin river system. The Forest Service was aware of these ownership rights, as evidenced by their documentation in the RSFEIS . ( RSFEIS , Appendix E at E-380.) Neither KPC nor the Ketchikan Gateway Borough received any notification that WSR recommendations affecting their property rights were intended for inclusion in the ROD. Given that the general public did not receive any notice, the responsibility of the Forest Service to individually consult with the affected parties would seem to be especially acute in this instance. The lack of notification and consultation in this case resulted in the Forest Service’s failure to comply with 36 CFR 219.6(k), which requires that the results of such coordination be included in the environmental impact statement for the plan as part of the review required in 36 CFR § 219.7(c).

  Gokachin /Fish Creeks Unsuited for Wild & Scenic River Status

  A very significant factor against designating the Gokachin /Fish Creek system as a WSR is that it is not a river system at all. Gokachin Creek and Fish Creek both have headwaters within the Misty Fjords National Monument Wilderness, and both terminate in Thorne Arm, but they drain two distinct watersheds with no hydrological connection between them. Under the National Wild and Scenic Rivers Act, a "river" is "a flowing body of water or estuary or a section, portion, or tributary thereof, including rivers, streams, creeks, runs, kills, rills, and small lakes." (16 U.S.C. § 1286.) It is endemic to the Act that each nominated river satisfy the selection criteria set forth in the Act.

  There is no justification in the Act for combining two rivers and designating them together as a single "wild river." It appears that the Forest Service combined the fairly high value Fish Creek with the unremarkable Gokachin Creek into a single system so that it could promote its planned "30-mile canoe trail" within an area designated "wild and scenic." (See RSFEIS , Appendix E at E-380). This is clearly beyond the scope of what Congress envisioned when it passed the National Wild and Scenic Rivers Act.

  Gokachin /Fish Creeks Designation will add Costs to Tongass Management

  The RSFEIS states that implementation of the Gokachin /Fish WSR would add at least $185,000 to Forest Service costs in the first five years. ( RSFEIS , Appendix E at E-382.)

• Essowah Lakes and Streams

  Thirteen miles (13) of the Essowah system on Dall Island are nominated by the ROD for Wild River designation. The designation would remove 1,480 acres of tentatively suitable forest land from consideration for timber harvest. The effect of this nomination on the ASQ and on AFA interests is expected to be minimal in the near future because the affected land contains generally unremarkable timber values and because the entire southern end of Dall Island is placed in a non-development LUD (semi-remote recreation) by TLMP .

  Essowah Designation Contrary to ANCSA , Violates Private Property Rights

  There are concerns over the potential impact the Essowah nomination will have on ANCSA land selection rights for Sealaska Corporation. The Essowah system encroaches on lands owned by Sealaska on Dall Island (See map in RSFEIS , Appendix E at E-368) and may preclude selection options still open to the ANCSA -created regional corporation. As Sealaska pointed out in its TLMP appeal, the Forest Service had no right to make land use designations in TLMP on land currently reserved but not conveyed under ANCSA , until all Native selection rights are satisfied.

  Sealaska Corporation was not notified that a WSR recommendation affecting its property rights was intended for inclusion in the ROD. As with the other three rivers that were added at the last minute, the general public received no notice, therefore the Forest Service had a particular obligation to individually consult with Sealaska before nominating the Essowah system. The lack of notification and consultation in this case resulted in the Forest Service’s failure to comply with 36 CFR 219.6(k), which requires that the results of such coordination be included in the environmental impact statement for the plan as part of the review required in 36 CFR § 219.7(c).

  Essowah Designation will add Costs to Tongass Management

  The RSFEIS states that implementation of the Essowah WSR would add at least $60,000 to Forest Service costs in the first five years. ( RSFEIS , Appendix E at E-372.)

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