alaska department of natural …dnr.alaska.gov/mlw/muni/haines/adl 108105 pd final_10-31...along...

ALASKA DEPARTMENT OF NATURAL RESOURCES DIVISION OF MINING, LAND AND WATER

MUNICIPAL ENTITLEMENTS

PRELIMINARY DECISION CONVEYANCE OF STATE LAND UNDER AS 29.65.010

AND AMENDMENT TO THE NORTHERN SOUTHEAST AREA PLAN

HAINES BOROUGH

MUNICIPAL LAND ENTITLEMENT SELECTIONS ADL 108105

I. PROPOSED ACTION The Alaska Department of Natural Resources (DNR), Division of Mining Land and Water (DMLW) proposes to convey in part, reject in part, and postpone in part, lands selected by the Haines Borough (borough) in partial fulfillment of their general grant land entitlement under AS 29.65.010(a)(15). The borough has selected nine parcels for conveyance, as identified in Table 1, below. The nine parcels are located in four geographical areas identified as: Katzehin River, Chilkoot Inlet North, East Lynn Canal & South East Lynn Canal (MAP 1), William Henry Bay (MAP 2), Lynn Islands (MAP 3) and Northeastern, Western, South & Central Excursion Inlet (Map 4). Each of these areas are management units in the Northern Southeast Area Plan1 (NSEAP).

TABLE 1: PARCELS SELECTED BY THE HAINES BOROUGH

Parcel No. Map No. Name NSEAP Management Unit

1 1 Katzehin River, Lynn Canal H-20 2 2 William Henry Bay H-28 3 3 Uplands Adjacent to Lynn Islands H-30 4 4 Northeastern Excursion Inlet H-33 5 4 Western Excursion Inlet H-34 6 4 Central Excursion Inlet H-35 7 4 South Excursion Inlet H-36 8 1 Chilkoot Inlet North East Lynn Canal H-40 9 1 Chilkoot Inlet South East Lynn Canal H-41

1 The Northern South East Area Plan (NSEAP) adopted October 2002 determines the management intent, land-use

designations, and management guidelines that apply to all state lands in the applicable planning area. This plan forms the basis for the land use classifications that constitute vacant, unappropriated, unreserved land for purposes of determining the eligibility of state land for potential conveyance to a municipality under AS 29.65.

Haines Borough Preliminary Decision, ADL 108105 of 26

DMLW proposes to convey approximately 2,091 acres of state owned vacant, unappropriated, unreserved (VUU)2 general grant land located in parcels 3, 4, 6 and 7 from the above selections. Regarding these four parcels, DMLW has determined that there are no over-riding state interests that merit retaining these selections in state ownership. DMLW proposes to reject the conveyance of the remaining two parcels: Parcel 2 – William Henry Bay finding it is not in the State’s best interest, and Parcel 5 – Western Excursion Inlet, due to the current land status. DMLW proposes to postpone action on three borough selections, Parcels 1, 8 and 9. These parcels are affected by Public Land Order (PLO) 5603, which requires that the United States retain the land in federal ownership. Although Parcels 1, 8 and 9 were state selected, the state selections cannot attach because the land is withdrawn under PLO 5603. Until such time as PLO 5603 is lifted and DNR’s selection falls into place, Parcels 1, 8 and 9 are not state owned or available for selection. Other actions associated with this decision include:

• Amendment to the NSEAP to reflect that a State Marine Park is no longer

recommended at the uplands adjacent to Lynn Islands selection (Parcel 3) and that retention of this management unit in state ownership, as currently stated in the NSEAP, is no longer required. The Haines Borough did not select the island located in Section 11 (Lot 1) in this management unit as part of its municipal entitlement selections, therefore the island is not part of this decision. An Area Plan Amendment accompanies this decision. In the event that this revision to the area plan is not approved, this selection cannot be conveyed to the borough.

The public is invited to comment on this Preliminary Decision (PD). The deadline for comments is November 30, 2017. Refer to final page of this decision under the heading PUBLIC NOTICE, DECISION AND APPEAL PROCEDURES for details on how to submit comments. II. AUTHORITY The proposed actions in this PD are authorized pursuant to Alaska Statute (AS) and Alaska Administrative Code (AAC), particularly AS 29.65, AS 38.05.035(e), AS 38.05.125, AS 38.05.127, AS 19.10.010 and 11 AAC 55. III. ADMINISTRATIVE RECORD The administrative record for this PD consists of case file ADL 108105, the Northern Southeast Area Plan (NSEAP) adopted October 2002, the Alaska Department of Fish and Game (ADFG) Alaska Anadromous Waters Catalog & Atlas to the Catalog, Alaska Department of Environmental Conservation (ADEC) Contaminated Sites database, and the Alaska Southeast Transportation Plan. 2 Vacant, unappropriated, unreserved (VUU) land is general grant land patented or tentatively approved to the state

from the United States, excluding minerals as required by 6(i) of the Alaska Statehood Act, and is conveyable under the Municipal Entitlement Act (AS 29.65).


IV. SCOPE OF DECISION The scope of this DMLW review is limited to a determination of whether it is found appropriate to convey the nine borough land selections to the Haines Borough (see Table 1, supra). This determination includes a determination of third party interests, stipulations necessary to effectuate this decision, and an evaluation of whether the public interest in retaining state ownership of the land outweighs the borough’s interest in obtaining the selected lands as provided in AS 29.65.050. In this decision DMLW will also determine whether the Haines Borough’s municipal entitlement land selections meet the requirements under AS 29.65.070(c), and whether it is appropriate to allow the Haines Borough to exercise immediate management authority for conditional sales and leases. V. DESCRIPTION

A. Location and Geographical Features The Haines Borough extends from the Canadian Border in the north (including the Chilkat Valley), south along Lynn Canal to and including the tip of Point Couverden, and then extending northwesterly to include Excursion Inlet. This region of Southeast Alaska is located in a maritime climate zone with cool to moderate temperatures (estimated annual average between 35-48 degrees) and high amounts of precipitation in the coastal mountains (estimated annual average 60 inches). Generally, the topography extends from tidelands to steep mountainous terrain and glaciers. The borough selections encompass anadromous rivers and streams, floodplains and estuarine areas. Along Excursion Inlet there are several areas of settlement where state subdivisions have occurred. Parcels along Lynn Canal are similarly scattered, consisting of several state marine parks (SMP) occupying islands, portions of uplands along Lynn Canal (St. James Bay SMP), and the Chilkat Peninsula south of the community of Haines.

Borough/Municipality: Haines Borough Meridian: Copper River (C) Regional Native Corp.: Sealaska Corporation Native Village Corp.: Klukwan, Inc. Tribes: Chilkoot Indian Association of Haines Chilkat Indian Village of Klukwan USGS Map Coverage: Skagway Quadrangle (1:250,000) Juneau Quadrangle (1:250,000)

MAP # Municipal Entitlement Selection Name USGS

1 Katzehin River (Parcel 1), Chilkoot Inlet North East Lynn Canal (Parcel 8) & South East Lynn Canal (Parcel 9)

Skagway A-1

2 William Henry Bay (Parcel 2) Juneau C-4 3 Uplands Adjacent to Lynn Islands (Parcel 3) Juneau B-4 & C-4

4 Excursion Inlet Northeastern (Parcel 4), Western (Parcel 5), Central (Parcel 6), & South (Parcel 7)

Juneau B-5


B. Legal Description - Land Status - Third Party Interests TABLE 2 below identifies the Haines Borough land selections adjudicated in this decision by attachment map number, parcel number and area name, Township (T), Range (R), Sections (S), and includes title status, date, state case file and any third-party interest affecting those lands owned by the state. The state holds fee title to the land and mineral estates through either Patent or Tentative Approval (TA) received from the United States Department of Interior, Bureau of Land Management (BLM). All the Haines Borough selections are within the Copper River Meridian (CRM). The state will only convey the land estate on lands approved for conveyance to the borough, and, as required by AS 38.05.125, will retain the mineral estate in state ownership.

TABLE 2: LEGAL DESCRIPTION – LAND STATUS – THIRD PARTY INTEREST Parcel 2 (Map 2) William Henry Bay – T36S, R61E Sections 21, 22, 28 State Title Date State Selection File Acreage US Patent No. 50-2007-0440 May 3, 2007 NFCG 210 315.81 Legal Description: Tract A, Township 36 South, Range 61 East, Copper River Meridian, as shown on the plat of survey accepted by BLM on June 1, 1999 and containing approximately 315.81 acres. Third Party Interest: YES Surface

• RCA Alaska Communications 50’ wide easement/Right of Way • OSL 1449/ ADL 229423 Agreement/Settlement-University of Alaska3

Geographic Description: This selection is situated on the west side of Lynn Canal, generally 36 miles north-northwest of Juneau, occupying the drainage of William Henry Creek, an anadromous fish stream, in the northwestern part of William Henry Bay. This parcel is characterized by steep slopes, with Western Hemlock and Sitka Spruce being the dominant vegetation. Areas adjoining the coast at the mouth of the creek are somewhat flat, but get steeper quickly thereafter. In 2011, reconnaissance geological field work indicated a high probability for gold mineralization and medium to low probability for rare earth element (REE) mineralization.

Parcel 3 (Map 3) Uplands Adjacent to Lynn Islands – T39S, R62E, Secs. 9, 10, 11, 14, 15 State Title Date State Selection File Acreage US Patent No. 50-2007-0341 Aug 12, 2012 NFCG 323 1,418.83 Legal Description: Section 9: SE1/4SE1/4; Section 10 (All); Section 11: Lot 2; Section 14 (Fractional); and Section 15: N1/2N1/2, SE1/4NE1/4, NE1/4SE1/4, within Township 39 South, Range 62 East, Copper River Meridian, as shown on the plat of survey accepted by BLM on April 29, 1999 and containing approximately 1,418.83 acres. Third Party Interest: YES Surface

• OSL 1432/ ADL 229404 Agreement/Settlement-University of Alaska4

3 This parcel was part of the 2005 University of Alaska land grant, which was subsequently invalidated by an Alaska Supreme Court decision, Southeast Alaska Conservation Council v. State of Alaska, 202 P.3d 1162 (Alaska 2009). The VUU parcel was conveyed to the University in 2007, and after the courts directed the University to convey the land back to the State in 2010, it was designated Other State Land (OSL). 4 Ibid.


Geographic Description: This selection occupies a fairly flat area that is heavily vegetated with a mixture of palustrine wetlands in poorly drained areas and Western Hemlock and Sitka Spruce in drier, better drained sites. There are three anadromous streams in this unit. An area of estuarine wetlands occupies the tidal area at the mouth of Lynn Sisters and North Sisters creeks.

Parcel 4 (Map 4) Northeastern Excursion Inlet – T40S, R61E, Section 6 State Title Date State Selection File Acreage US Patent No. 50-86-0020 October 8, 1985 NFCG 126 193.37 Legal Description: Section 6: Lots 1, 2, 3 and the E1/2NW1/4, within Township 40 South, Range 61 East, Copper River Meridian, as shown on the plat of survey accepted by BLM on July 18, 1985 and containing approximately 193.37 acres. Third Party Interest: YES Surface

• ADL 106536 Agreement/Settlement USDA Forest Service AA54350 Right-of-Way, 08/06/1987 Final Partial Judgment, Case No. A86-630 Civil

Geographic Description: Parcel is situated just east of current subdivisions at Excursion Inlet and is accessed by old USFS roads. The site is fairly level. An anadromous stream (North Creek) crosses through this parcel providing habitat for pink salmon.

Parcel 5 (Map 4) Western Excursion Inlet – T40S, R60E, Sections 1 and 2 State Title Date State Selection File Acreage BLM Tentative Approval AA 007923 June 17, 1980 NFCG 126 215.005 Legal Description: Section 1: E1/2SE1/4, SW1/4SE1/4, S1/2SW1/4, excluding lands that are part of the Haines Borough Municipal Tideland Selection under ADL 106936; Section 2: Lot 1, within Township 40 South, Range 60 East, Copper River Meridian, as shown on the plat of survey accepted by BLM on July 18, 1985, excluding lands that are part of the Haines Borough Municipal Tideland Selection under ADL 106936, and containing approximately 215 acres. Third Party Interest: YES Surface

• ADL 106536 Agreement/Settlement USDA Forest Service AA54350 Right-of-Way, 08/06/1987 Final Partial Judgment, Case No. A86-630 Civil

• AA7923 Pending Native Allotment Application • ADL 43539 Water Rights-Surface

Geographic Description: This selection occupies a steeply sloping area adjacent to Excursion Inlet and just north of the existing Excursion Inlet subdivisions. Vegetation consists of a mix of Western Hemlock and Sitka Spruce stands on the better drained soils and palustrine wetland area. There is an anadromous stream (North Creek) in this parcel.

Parcel 6 (Map 4) Central Excursion Inlet – T40S, R61E, Section 7 State Title Date State Selection File Acreage US Patent No. 50-86-0020 October 8, 1985 NFCG 126 196.23

Legal Description: Tract O, ASLS No. 95-35, recorded on November 12, 2013 as Plat No. 2013-32 Juneau Recording District and containing approximately 196.23 acres.

5 In November 2012, BLM issued a decision determining the Native allotment application AA-7923 of Jessie Gray

was valid and that lands were erroneously conveyed to the State by tentative approval dated June 17, 1980. The BLM requests reconveyance of approximately 160 acres.


Third Party Interest: YES

Surface • ADL 106536 Agreement/Settlement USDA Forest Service AA54350 Right-of-Way, 08/06/1987

Final Partial Judgment, Case No. A86-630 Civil

Geographic Description: This selection is situated just east of current subdivisions at Excursion Inlet and is accessed by old USFS roads. The site is fairly steep and is vegetated with Western Hemlock and Sitka Spruce. An anadromous stream (South Creek) crosses through this parcel providing habitat for pink, chum and sockeye salmon. This stream is considered an important subsistence use resource.

Parcel 7 (Map 4) South Excursion Inlet – T40S, R61E, Sections 18 and 19 State Title Date State Selection File Acreage US Patent No. 50-86-0020 October 8, 1985 NFCG 126 282.31 Legal Description: Tract P, ASLS No. 95-35, recorded on November 12, 2013 as Plat No. 2013-32 Juneau Recording District, containing approximately 243.44 acres; and Section 19: Lot 1, within Township 40 South, Range 61 East, Copper River Meridian, as shown on the plat of survey accepted by BLM on July 18, 1985 and containing approximately 38.87 acres. Third Party Interest: None Geographic Description: This selection is situated just east of current subdivisions at Excursion Inlet and is accessed by old USFS roads. The site is fairly steep and is vegetated with Western Hemlock and Sitka Spruce. An anadromous lake (Neva Lake) in the selection provides sockeye salmon habitat and is considered an important subsistence use resource.

VI. PRELIMINARY DECISION

A. Background On July 1, 1978, Haines Borough was awarded 2,800 acres of municipal entitlement land pursuant to AS 29.18.201. As of this date, approximately 1,800 acres of that allotment have been conveyed by Patent or Quit Claim Deed. The Borough has received management authority over an additional estimated 975 acres while the survey of this area is being completed. In 2010, Haines Borough received a supplemental municipal entitlement allotment of 3,167 acres, pursuant to AS 29.65.010(a)(15). The Borough is entitled to receive approximately 3,183 acres under their remaining municipal entitlement.

B. Planning, Classification and Mineral Orders

1. Planning The land selections are separated geographically in six different management units. The management intent and area plan designation for each management unit is described in the NSEAP. These plan designations convert to land use classifications, which establish what land the State may convey under the Municipal Entitlement Act (see AS 29.65.010 et seq.). With respect to planning, the NSEAP is the controlling land management planning authority. The Borough’s land


selections fall within the planning boundary of the NSEAP, and accordingly, are governed by the management intent and classifications found in the plan. 2. Land Use Classification The land selections proposed for conveyance in this decision are classified as Resource Management, Public Recreation or Settlement which are conveyable classifications as municipal entitlement general grant land under AS 29.65. TABLE 3 shows the land use classifications derived from the NSEAP for the land selections adjudicated in this decision.

TABLE 3: NSEAP MANAGEMENT UNIT AND CLASSIFICATION

Map No.

Parcel Name Parcel No.

Management Unit

Land Use Designation Land Use Classification Selection

Acres

MAP 2 William Henry Bay Parcel 2 H-28 GU Resource Management Land 315.81

MAP 3 Uplands Adjacent to Lynn

Islands Parcel 3

H-30 Ru

Public Facilities transfer (Pt)

Public Recreation Land Resource Management Land 1,418.83

MAP 4

Northeastern Excursion Inlet

Parcel 4 H-33 GU Resource Management Land 193.37

Western Excursion Inlet Parcel 5 H-34 GU Resource Management Land 215

Central Excursion Inlet Parcel 6 H-35 S Settlement Land 196.23

South Excursion Inlet Parcel 7 H-36 S

GU Settlement Land

Resource Management Land 282.31

As noted above, DMLW proposes to amend the management intent in Unit H-30 of the NSEAP to reflect that a State Marine Park is no longer recommended at the Lynn Islands (MAP 3), that retention of this management unit in state ownership is no longer required and that the management unit is appropriate for conveyance to the Haines Borough, subject to an affirmative best interest finding. A Plan Amendment accompanies this decision.

3. Mineral Orders The mineral estate is reserved to the state pursuant to AS 38.05.125. Mineral Order (MO) 1045 closed to mineral entry parcels at Excursion Inlet, Lynn Canal and William Henry Bay. MO 1045 was part of the 2005 University of Alaska land grant, which was subsequently invalidated by an Alaska Supreme Court decision.6 On February 7, 2012, DMLW issued MO 1118 which reopened some of the parcels that were closed under MO 1045. Parcels 2 and 3 were opened to mineral entry under MO 1118, and Parcels, 4, 5, 6 and 7 remain closed to mineral entry. There are no other known mineral orders affecting the borough’s selections. 6 Southeast Alaska Conservation Council v. State of Alaska, 202 P.3d 1162 (Alaska 2009).


C. Traditional Use Finding

In an unorganized borough, disposal of state land with traditional uses is to be reviewed under AS 38.05.830. The Haines Borough is an organized borough under AS 29.05.031 and eligible for municipal entitlement. Therefore, a determination for traditional uses is not required. All the borough’s municipal entitlement land selections in this decision are located within their legal boundary.

D. Access Public access will be reserved in accordance with AS 19.10.010, AS 19.30.400, AS 38.05.125, AS 38.05.127, and 11 AAC 51. Lynn Canal and Icy Strait serve as major travel corridors for flights, ferries, ships, and boats. Chilkoot Inlet and Excursion Inlet are contiguous with these major water ways and provide access to some of the Haines Borough land selections. The NSEAP notes significant anchorages in waters adjacent to the Lynn Islands and William Henry Bay parcels. Depending upon the terrain and season of travel in this region may be accessible by water (skiffs and other small boats), all-terrain vehicles and snow-machines. Boats are used to access those portions of the roadless area bordered by saltwater. However, the majority of the borough land selection, subject of this adjudication, in the immediate area along Lynn Canal has limited access in part due to the steepness of the terrain. Upland access to and through this region is limited since there are few roads and no airports. Helicopters, airplanes, floatplanes, and occasional ski planes are used to access many parts of the area. The Alaska Department of Transportation and Public Facilities (ADOT&PF) has identified two potential highway corridors along Lynn Canal for the Juneau Access Improvements project. The preferred alternative would run along Lynn Canal and across Chilkoot Inlet North East & South East Lynn Canal, cross the Katzehin River and serve a proposed ferry terminal in the Katzehin River selection. Lands that were previously conveyed to the borough are located adjacent to marine waters at Excursion Inlet, which would provide marine access through borough lands to the current selections (Parcels 4, 6 and 7). There is also an unofficial airstrip and a network of forest development roads (FDR) at Excursion Inlet now used primarily to support cannery operations.

1. Section Line Easements As required under AS 19.10.010, and in accordance with 11 AAC 51.025, a public access easement 100 feet wide will be reserved along each section line on lands approved for conveyance. If a section line forms a boundary of a selection being conveyed, then the easement will be 50 feet wide measured from the section line. If a section line runs through a selection being conveyed, then the easement will be 50 feet wide measured on each side of the section line, for a total width of 100 feet.


2. Trails, Rights-of-way, RS 2477 and Easements A review of state records concluded that there are rights-of-way, easements, reservations and exceptions in the U.S. Patent affecting some of the Haines Borough land selections as disclosed above in TABLE 2, above.

3. Navigable and Public Water Waterbodies determined to be navigable or public are identified below in TABLES 4 and 5. The state will retain ownership of the bed of navigable water, including all gravel bars and islands, and will convey the bed of public waters to the borough. A survey will determine the Ordinary High Water Mark (OHWM) of the navigable and public waters, the Mean High Water Mark (MHWM) on marine meandering shorelines, identify islands, and determine the specific areas to be retained by the state. At the time of survey, field work may find that a body of water or a waterway is different than identified in this decision. If this occurs, the results of the survey work will be reviewed further within DNR. If the field work is determined to be accurate, then the survey results will supersede the recommendation in this decision.

Navigable Waters: Pursuant to 11 AAC 51.035, a water body is navigable if it is at least 50 acres in size or a waterway at least 50 feet wide from OHWM to OHWM. A water body will also be considered navigable if it is found it is navigable for a useful public purpose in accordance with AS 38.05.965, otherwise, it will be considered public water in accordance to 11 AAC 51.035. Additionally, ownership of land adjacent to navigable water does not create any right of title to land below the OHWM of the navigable water.

All tidal waters are considered navigable under the Submerged Lands Act (67 Stat 29, PL 31, 5/22/1953). The MHWM is established at the time of survey.

Public Waters: Pursuant of 11 AAC 51.035, a water body is considered public water if it is at least 10 but less than 50 acres in size or at least 10 feet but less than 50 feet wide from OHWM to OHWM. Ownership of the land under or adjacent to public water does not grant an exclusive right to use of the water (AS 38.05.126).

On and along the bed of public water bodies or waterways, the state will reserve an access easement and convey title to the Haines Borough. Legal public access is generally limited to easements typically 100 feet wide on section lines (SLE) and typically 50 feet wide along the OHWM and MHWM of navigable and public water bodies (the ‘along’ easement, see below).

4. Easements To and Along Navigable and Public Water A public access easement of 50 feet in width upland of the OHWM and MHWM will be reserved on all water bodies and waterways determined to be public or navigable waters in accordance with AS 38.05.127 and 11 AAC 51. This easement is referred to as the ‘along’ easement. The ‘to’ easement is to be established approximately once each mile and is often provided on section line easements of 50 feet in width adjacent to the section line on each side (AS 19.10.010 and 11 AAC


51.025). The ‘along’ easement applies to these waterbodies and the ‘to’ easement is intended to provide access to the ‘along’ easements. An alternative upland access route may be reserved if DNR finds that access along an easement reserved under 11 AAC51.045(d)(1) is difficult because of topography or obstructions. TABLES 4 & 5 below indicate those waterbodies that are considered navigable or public waters that are affected by this requirement (see column “Public Access”). These public access easements will be reserved as a ‘subject to’ in this decision on those lands approved for conveyance to the Haines Borough.

NAVIGABLE WATERS

Waterbodies determined to be navigable waters are identified in TABLE 4. These waterbodies may or may not be anadromous. No navigable waters or the beds (underlying land) of a navigable waterbody are conveyed in a decision for municipal entitlement. Exposed sand or gravel bars that are within and are not above the OHWM are part of the waterbody bed. Only those lands determined to be uplands that are above the OHWM are intended to be conveyed.

TABLE 4: NAVIGABLE WATERS

Map No. Parcel Name Parcel No.

Township, Range, Section

Waterbody Name Anadromous Waters

Catalog #

Public Access Easement

(to & along)

MAP 2 William Henry Bay Parcel 2

T36S, R61E Secs 21, 22, 28

Marine Shoreline Lynn Canal 115-10 50 feet

MAP 3 Uplands Adjacent to Lynn

Islands Parcel 3

T39S, R62E Secs 11, 14

Marine Shoreline Lynn Canal 112-15 50 feet

MAP 4

Western Excursion Inlet Parcel 5

T40S, R60E Sec 2

Marine Shoreline Excursion Inlet 114-80 50 feet

South Excursion Inlet Parcel 7

T40S, R61E Sec 18 Neva Lake

114-80-10450-2004-0010 50 feet

PUBLIC WATERS

Waterbodies determined to be public waters under 11 AAC 51.035 are identified in TABLE 5. These waterbodies may or may not be anadromous. The beds of public waters are to be conveyed with the adjoining approved lands.


TABLE 5: PUBLIC WATERS

Map No. Parcel Name Parcel No.

Township, Range Section

Waterbody Name

Anadromous Waters

Catalog #

Public Access Easement

(to & along)

MAP 2 William Henry Bay Parcel 2

T36S, R61E Secs 21, 22, 28 William Henry Creek 115-10-10680 50 feet

MAP 3 Uplands Adjacent to

Lynn Islands Parcel 3

T39S, R62E Sec 9 Unnamed Lake None 50 feet

T39S, R62 E Secs 9, 10, 11 Lynn Sisters Creek 112-15-10420 50 feet

T39S, R62E Secs 10, 11 North Sisters Creek 112-15-10400 50 feet

T39S, R62E Sec 14, 15 Unnamed creek 112-15-10425 50 feet

MAP 4

Northeastern Excursion Inlet Parcel 4

T40S, R61E Sec 6 North Creek 114-80-10400 50 feet

Western Excursion Inlet Parcel 5

T40S, R60E Secs 1, 2 North Creek 114-80-10400 50 feet

Central Excursion Inlet Parcel 6

T40S, R61E Sec 7 South Creek none 50 feet

E. Reservation of Mineral Estate

A conveyance of VUU general grant land to a municipality under AS 29.65 conveys no interest in the mineral estate. All mineral related permits, licenses, claims and leases affecting the land for conveyance, if any, will remain under the authority of the state. In accordance with Section 6(i) of the Alaska Statehood Act and AS 38.05.125, the state, in this decision, reserves unto itself the mineral estate, including oil and gas, and the rights expressed in the reservation clause of the statute, that being the right to reasonable access to the surface for purposes of exploring for, developing and producing the reserved mineral resources. Exploration and development, if any, which could occur, would be consistent with AS 38.05.130 and other applicable statutes and regulations.

F. Hazardous Materials and Potential Contaminants It is the responsibility of the State to protect the overall public interest if there is a reasonable expectation that hazardous contamination may exist on land being proposed for disposal. Based on review of the Alaska Department of Environmental Conservation’s (ADEC) list of contaminated sites and comments received, no hazardous material or contamination from hazardous material is known at this time to affect these selections. The environmental risk associated with this proposed conveyance is found to be minimal, if non-existent, at the time of this Preliminary Decision. The Haines Borough is expected to inspect these selections and familiarize itself with regards to the condition and quality of the land. The State of Alaska makes no representations and no warranties, expressed or implied, concerning the existence or absence of any hazardous substances, hazardous wastes, contaminants, or pollutants on the land proposed here for conveyance. The state


assumes no liability for removal of hazardous substances, hazardous wastes, contaminants, or pollutants, nor any liability for the remediation of the site should such substances ever be identified. The Haines Borough, by selecting these lands and requesting their conveyance through this Preliminary Decision, recognizes the surrounding areas of identified contaminated sites and will take the land “as is.”

G. Survey A state approved survey will be required prior to issuance of a conveyance document. If no approved survey exists, then one must be performed by an Alaska Registered Land Surveyor under direction of the DNR DMLW Survey Section. The Haines Borough is responsible for the expense of any survey. A survey determination may be requested by the Haines Borough at any time subsequent to the Final Finding & Decision. There is no requirement under AS 29.65.070 to appraise the land prior to conveyance.

H. Conditional Leases and Sales The borough will receive management authority and equitable title to all land approved for conveyance by this preliminary decision once the Final Finding & Decision is effective. This will allow the Haines Borough to approve conditional leases and make conditional sales pursuant to AS 29.65.070(b), but not to dispose of land approved for conveyance until the land has been surveyed and ownership transferred to the borough.

I. Unauthorized Use DMLW has not physically inspected all areas of the selected lands for the presence of unauthorized use, but has reviewed department records and is unaware of any existing unauthorized use within the boundaries of Parcels 3, 4, 6 and 7, which are proposed to be conveyed in this decision. The borough is expected to inspect all of its land selections to familiarize itself with the condition and quality of the land.

J. Disposition of Leases, Permits and Applications Administration of any active leases, permits, and easements for the surface estate issued by the state on land to be conveyed will be transferred to the borough when the Final Finding & Decision becomes effective, unless such authorizations are specifically excluded from the conveyance. Any pending applications that have not been adjudicated and issued will be closed.

K. Cultural Resources The Alaska Office of History and Archaeology (OHA) maintains the Alaska Heritage Resources Survey (AHRS) which is an inventory of all reported historic, prehistoric and archaeological sites in the state. There are no recorded cultural resources (historic, prehistoric, and archaeological sites, locations, remains, or objects) within the parcel boundaries of Parcels 3, 4, 6 and 7.


However, it should be noted that only a very small portion of the state has been surveyed for cultural resources and therefore, the possibility remains that previously unidentified cultural resources may be located within the selected lands. While the conveyance of these parcels will have no direct effects to cultural resources, future projects that may be proposed by the Haines Borough on selected lands could affect unidentified cultural resources. Should any cultural resources be encountered, the borough will need to take those actions required by law to protect such resources in accordance with AS 41.35.070(d). The AHRS indicates that the boundaries of a recorded historic World War II site, JUN-003, overlaps all three selections at Excursion Inlet. Although there is potential for discovering additional cultural resources associated with site JUN-003, DMLW finds that the proposed land conveyance will have no direct effect to the resource. This finding is based on the fact that site JUN-003 has been mostly demolished and the parcel boundaries are located on the outer portions of the site, away from previous infrastructure locations.7

L. Form and Width Requirement Each municipal entitlement land selection is required to be compact in form with its length not exceeding approximately four times its width pursuant to AS 29.65.070(c). Review of the borough’s land selections proposed for conveyance in this decision indicates that the selections are consistent with this statute.

M. Agency Review The intent of an agency review is to request comments from agencies that may be affected by a municipal entitlement land conveyance decision. Agencies are given the opportunity to evaluate and comment on the municipality’s land selection to determine if the State should retain all or a portion of the selected lands, and if so, provide supporting reasons for the requested action. Additionally, agencies are requested to identify any stipulations that may be appropriate if the land is to be conveyed out of state ownership. DMLW conducted an agency review of this proposed conveyance in 2012, and again in 2017. Comments and responses from both agency reviews are included below. State Agency Comments and DNR/DMLW responses: Comments from DNR Division of Forestry (DOF), Coastal Regional Office – Ketchikan (2012) DOF indicated that none of the parcels are within the Southeast State Forest. Comments from the Alaska Department of Environmental Conservation (ADEC)(2012) Map 1 – Closest contaminated sites are 5+ miles away and across the Chilkoot Inlet. Map 2 – No contaminated sites in or near this area.

7 Roppel, Pat, Southeast History: Prisoners of War at Excursion Inlet, Capital City Weekly, August 25, 2010; Roppel, Pat, Southeast History: The End of Excursion Inlet’s Secret Military Base, Capital City Weekly, September 8, 2010.


Map 3 – Closest contaminated site (FAA Ralston Island Former Radio Range Facility) 4 to 5 miles away on Ralston Island, which is across Lynn Canal from this area. Map 4 – There are two sites extremely close to this area, both within about 1 mile from parcels on this map: Excursion Inlet Drum Site – in an area marked as “approved” on the map; and Excursion Inlet Cannery.

DNR Response to DEC: DNR acknowledges these known contaminated sites, which are on land already approved for conveyance to the Haines Borough in a previous decision. The borough is expected to inspect selected lands and familiarize itself with regards to the conditions and quality of the land.

Comments from DNR Public Access Assertion & Defense Unit (PAAD)(2012)

PAAD cautioned to not convey any tidelands. DNR Response to PAAD: No land located below the MHWM will be conveyed in this decision. Comments from Alaska Department of Fish and Game (ADFG)(2012) ADFG recommends the beds of all anadromous streams remain in state ownership, and recommends a 300-foot buffer along both sides of any listed anadromous stream to protect important riparian fish habitat. ADFG also recommended a minimum width of 100 feet for buffers. ADFG indicates that current borough codes are not sufficient to adequately protect these resources and recommends buffers adjacent to these waterbodies also be retained in state ownership to protect public resources and access. ADFG also has the following specific comments and recommendations: Katzehin River (Map 1): The Katzehin River (AWC #115-34-10700) is important habitat for chum, coho, pink salmon and dolly varden. It is a known pacific herring spawning site and important area for subsistence crabbing and sport fishing. Black and Brown bears and moose are known to use the grass flats adjacent to forested areas. A small population of moose is present during winter months, and bears mainly use the area in spring. If conveyed, ADFG recommends a minimum 100-foot buffer be retained in state ownership along the Katzehin River. ADFG also recommends a 100-foot coastal buffer be retained in state ownership along the remaining portion of the unit. North Chilkoot Inlet (Map 1): One unnamed and undocumented stream runs through this selection. At this time, ADFG has no information regarding resident fish or potential fish habitat. If fish are documented, ADFG staff should be contacted to determine the importance of the stream. Mountain goat surveys demonstrate extensive use of low elevation areas (to tide line) during winter. Disturbance during this vulnerable time (due to nutritional stress) could cause goats to vacate preferred habitat and impact their overwinter survival. As stated in the NSEAP, ADFG recommends a 100-foot coastal buffer be retained in state ownership to provide adequate public access and to protect habitat and prevent erosion. South Chilkoot Inlet (Map 1): There are three unnamed and undocumented streams that run through the selection. The stream that goes through Section 36 is known as Yeldagalga Creek. At


this time, ADFG has no information regarding resident fish or potential fish habitat. If fish are documented, ADFG staff should be contacted to determine the importance of the stream. The steep topography of the area makes it suitable habitat for mountain goats. Mountain goat surveys demonstrate extensive use of low elevation areas (to tide line) during winter. Disturbance during this vulnerable time (due to nutritional stress) could cause goats to vacate preferred habitat and impact their overwinter survival. Goat hunting is allowed in the area, and a popular access point into the Yeldagalga Creek drainage is located in this selection. ADFG recommends retaining this parcel in state ownership. Mountain Goats are known to show a high degree of home range fidelity. They use the same areas year after year, and a major disturbance could cause a decline in goat numbers or relocation out of the area. The loss of this population would have an impact to hunters who annually hunt in this location. At a minimum, a 100-foot coastal buffer should be retained in state ownership to provide adequate public access and use along the shoreline, to maintain fishing opportunities, and to protect fish and wildlife habitat. William Henry Bay (Map 2): The selected parcel includes William Henry Creek which is anadromous (AWC #115-10-10680). This is an important spawning stream for pink and chum salmon used by the state as part of an index stream system to access the escapement of pink and summer chum salmon to the northern inside sub region of Southeast Alaska. The state should retain ownership of this stream parcel within William Henry Bay to protect important spawning habitat. Uplands Adjacent to Lynn Islands (Map 3): There are three streams within this selection that have been catalogued as important habitat for chum, coho, and pink salmon:

• North Sisters Creek - AWC #112-15-10400 • Lynn Sisters Creek – AWC #112-15-10420 • Unnamed stream – AWC# 112-15-10425

An area of estuarine wetlands is located at the mouth of Lynn Sisters and North Sisters creeks. ADFG also notes that the adjacent tideland management unit (LT-09) is important habitat for rearing salmon and adult migration and schooling. Spring black bear concentrations are found along the coast and salmon streams. ADFG recommends that a 100-foot wide buffer of state land be retained on either side of all three streams and along the coastline for public access and wildlife movement along the streams. Excursion Inlet A & B (Northeastern and Western Excursion Inlet Map 4): Cannery Creek (also known as North Creek) is within these two selections and is cataloged as important habitat for pink salmon (AWC #114-80-10400). As stated in the NSEAP, ADFG recommends that a 100-foot wide buffer of state land be retained in state ownership on either side of Cannery Creek prior to conveyance. Excursion Inlet C (Central and South Excursion Inlet Map 4): There are two streams within this parcel that have been cataloged as important fish habitat for chum, coho, pink and sockeye salmon:

• Neva Creek (also known as South Creek) - AWC #114-80-10450 • Unnamed stream entering Neva Lake - AWC #114-80-10450-2004-0010


Black bears can be found along streams and near the lake. Neva Lake has also been catalogued as important habitat for spawning sockeye salmon (AWC #114-80-10450-2004) and is an important subsistence resource for fishing and harvest of black bears. As stated in the NSEAP, ADFG recommends that Neva Lake and the beds of the anadromous fish streams remain in state ownership. ADFG also recommends that a 100-foot buffer of state land be retained in state ownership along the coast (Neva Lake shoreland) and on both sides of each anadromous stream to provide adequate access to public waters and subsistence resources. DNR Response to ADFG: In accordance with AS 38.05.127, a 50-foot public access easement will be imposed along the shores of all navigable and public waters. DNR does not have authority to impose 100-foot or 300-foot riparian buffers along waterbodies, as ADFG has requested in some locations. Per AS 29.65.130(6), conveyance of state land to municipalities are made “without reservation or condition except as may be required by law.” Reservations required by law include section line easements and ‘to and along’ easements. While DNR cannot require reservation of riparian buffers on land conveyed under AS 29.65, we recommend the borough work with ADFG prior to any proposed development in the areas identified by ADFG in order to protect important riparian habitat. DNR will retain ownership of Neva Lake, since this waterbody is considered navigable under 11 AAC 51.035(c), and state ownership of the lake bed is required under 11 AAC 51.045(d)(2), along with any waterbodies determined to be navigable, as identified in TABLE 4 above, or at the time of survey. Regarding ADFG’s recommendation to retain in state ownership all anadromous stream beds and up to 300 feet of land on both sides of anadromous streams, DNR maintains that this action would contradict the intent of the Municipal Entitlement Act. In areas like Haines Borough where there is limited state VUU land available for selection, such exclusions would further impede the borough’s ability to fulfill its land entitlement. In addition, this action would increase the cost of survey in areas affected by stream buffers, which would be inconsistent with AS 29.65.070(c), which requires consideration of the “effect of the form of the selection on surveying and management costs to the state and the municipality.” Conveyance of the selections on Map 1 in the Katzehin River area will not be considered at this time, since this land is currently not state-owned. Additional Comments from ADFG (2017) Katzehin River, Parcel 1: In May 2017, eulachon were documented in the Katzehin River (AWC 115-34-10700) for the first time, and a nomination will be submitted for inclusion in the Catalog of Waters Important for Spawning, Rearing, or Migration of Anadromous Fishes this fall. This parcel also supports a small and somewhat geographically isolated population of moose, which ADFG has found results in low genetic diversity of the herd. This area is also important for bears (both black and brown) during the spring as vegetation is emerging. All species are utilizing the grass flats and adjacent forested areas, making the parcel important habitat to preserve. ADFG recommends the state retain this land for its habitat values stated above, or include a stipulation


within the Decision that requires the Haines Borough to only use these lands for recreation or to protect the habitat values. Lynn Sisters, Parcel 3: Mountain goat are distributed all along the eastern side of Lynn Canal, however, in recent years it appears populations of mountain goats are struggling but somewhat stable in low numbers. ADFG has documented that mountain goats use low elevations (to tide line) during the winter months when they are physically and nutritionally stressed. Mountain goats are highly vulnerable during the winter and have a high degree of site fidelity in their home ranges. Any disturbance could result in mountain goats abandoning suitable or preferred wintering habitat, which could negatively impact survival. The State’s proposal to retain this parcel for eventual development as a state marine park would provide more protection for the goats given that most of the use would occur during the summer months and development would be minimal. DNR RESPONSE TO ADFG (2017): DNR acknowledges the comments on Parcel 1. However, due to title issues, the decision to convey Parcel 1 to the borough has been postponed for adjudication at a later date. Regarding Parcel 3, DNR has carefully considered ADFG’s concerns regarding mountain goats. The need for a marine park has been deemed no longer necessary, and DNR proposes to convey this parcel to the borough. DNR recommends the borough work with ADFG prior to any proposed development in this area. Comments from Department of Transportation & Public Facilities (ADOT&PF)(2012) The Southeast Regional Office of the Alaska Department of Transportation and Public Facilities (ADOT&PF) submitted the following comments: ADOT&PF has identified future transportation routes along both the east and west sides of Lynn Canal which pass through four of the parcels selected by the Haines Borough. Right of way corridors for these routes will need to be preserved for the State. ADOT&PF has existing rights across federal lands for transportation and utility corridors established by Section 4407 of Public Law (PL) 109-59. This law created right of way corridors for several highway routes in Southeast Alaska, across federal lands, as shown on Map 92337 referenced in the legislation. In September 2006, the US Forest Service and the State of Alaska’s Department of Transportation & Public Facilities and Department of Natural Resources entered into a Memorandum of Understanding to establish the framework for issuance of the easements enacted by PL 109-59. The highway easements created pursuant to the MOU are commonly referred to as 4407 easements. To reciprocate for the granting of the highway and utility corridors granted to ADOT&PF across federal lands, the State of Alaska through DNR is issuing several leases to the USFS for log transfer facilities located on State lands. The State’s ability to freely locate and construct highways or utilities within the 4407 corridors exist through current federal land by virtue of PL 109-59, such that the right of the State to construct a highway and/or utility is retained. The East Lynn Canal route, most of which is proposed to be constructed under the Juneau Access project, passes through the Katzehin River, North Chilkoot Inlet and South Chilkoot Inlet selections. The Federal Highway Administration and ADOT&PF have initiated a Supplemental


Environmental Impact Statement (SEIS) for the Juneau Access project. As part of the SEIS process, the alignment of the proposed alignment has been fairly well defined but is subject to some variation as the project goes through the SEIS and final design processes. A 4407 easement has been granted for the portion of the proposed highway from the Katzehin River to Skagway. The easement for the remaining portion is pending, but should be issued in the near future. ADOT&PF provided a draft map for this route as part of its comment. The West Lynn Canal Corridor is only roughly defined and is shown on a recorded easement. The highway corridor passes through the William Henry Bay selection. The 4407 easements allow ADOT&PF to perform all surveys, studies, and incidental activities required to plan and locate a highway or utility within the sections listed in the easement. A final easement would be 300 feet wide and granted upon completion of construction. As with the selected parcels above, if the William Henry Bay selection were to be conveyed to the Haines Borough, ADOT&PF’s ability to locate a highway or utility within a broad area needs to be retained, with a final highway and utility easement being established upon completion of construction, and without compensation for the right-of-way. DNR Response to ADOT&PF: The selections in the Katzehin River area (Map 1) have not been conveyed to the state from the federal government, thus DMLW will postpone a decision on whether to convey these lands to the borough. Regarding the parcel at William Henry Bay (Map 2), DMLW proposes to reject conveyance of this parcel to the borough because it has determined the state’s interest in retaining these lands outweigh the borough’s interest in obtaining them. Comments from DNR Division of Geological & Geophysical Surveys (DGGS)(2012) William Henry Bay (Map 2): In August 2011, DGGS conducted reconnaissance rock, stream-sediment, and pan-concentrate sampling in the William Henry Bay area. This work was conducted to assess the area’s mineral-resource potential. In December 2011, DGGS provided DMLW with an unpublished summary of its initial findings. Based on the new discovery of multiple rock samples and a stream-sediment sample with anomalous gold values, DGGS concluded the State land parcel has a high probability of hosting lode gold mineralization. In April 2012, DGGS published the William Henry Bay geochemical report, which provides documentation to support the summary report. DGGS recommends that DMLW consider the fact that state owned land at the mouth of William Henry Creek has mineral potential, as part its decision whether to convey this land parcel. DNR Response to DGGS: For reasons cited in these and other state agency comments, DNR has determined the state’s interest in retaining the parcel at William Henry Bay (Map 2) outweighs the borough’s interest in obtaining it. Therefore, DMLW proposes to reject conveyance of this parcel to the borough.


Comments from the DNR Office of History and Archaeology (OHA)(2012) The State Office of History and Archaeology (OHA)/State Historic Preservation Office (SHPO) maintains the Alaska Heritage Resources Survey (AHRS), which is an inventory of all reported historic and prehistoric sites in the state. The AHRS indicates that there are cultural resources (historic, prehistoric, and archaeological sites, locations, remains, or, objects) within the municipal entitlement selection. The cultural sites located within the boundary of the parcel maps are as follows: Excursion Inlet – Northeastern, Western, South & Central (MAP 4): The AHRS indicates that the boundaries of a recorded World War II site, JUN-003, overlaps all three Excursion Inlet Parcels. However, this conveyance is anticipated to have no direct effect to the resource since the site has been mostly demolished and the parcel boundaries are located on the outer portions of the site, away from infrastructure locations associated with the WWII occupation of the site. No other historical or archaeological sites were identified during agency review of the parcels proposed for conveyance to the borough. Only a very small portion of the state has been surveyed for cultural resources and therefore, the possibility remains that previously unidentified cultural resources may be located within the selected areas. The entitlement of these parcels will have no direct effects to cultural resources. However, future projects that may be proposed by the Haines Borough on the land selected could affect recorded and unidentified cultural resources. Pursuant to the State Historic Preservation Act and the National Historic Preservation Act, if there is state or federal involvement for future projects on the selected parcels then OHA will have the opportunity to review potential impacts to cultural resources and make recommendations for impacts to these resources if there are improvements on the land at that future time. DNR Response to OHA/SHPO: To protect the public interest in archaeological resources, conveyance of the proposed approved lands to the Haines Borough will be subject to the following condition:

Notification to the Alaska Office of History and Archaeology / State Historic Preservation Office in accordance with AS 41.35.070(d) is required upon discovery of historic, prehistoric, or archaeological sites, locations, remains or objects.

Comments from DNR Division of Parks and Outdoor Recreation (DPOR)(2017) • Parcels 2, 4-9: While some of the parcels could be used for local recreational activities, there is

not much regional or statewide value for Parks. • Parcel 3: Lynn Islands (Sisters) has good recreational potential but due to the close proximity

of other statutorily designated recreation lands, it is not a good potential for recreation development.

• Parcel 1: This parcel has been selected for its recreational potential and is currently used recreationally. If/when the road going North out of Juneau gets to this point this would be an


extremely valuable parcel for the location of a campground or other recreational facilities. This road would be a main transportation corridor and retaining the possibility for the State to have a significant impact on the use and enjoyment of this area seems critical. Strongly recommends retention of this parcel by the State.

DNR Response to DPOR (2017): DNR acknowledges the concerns expressed by the DPOR. A decision to convey Parcel 1 has been postponed until a later date. DNR has carefully considered DPOR’s evaluation and comments regarding Parcels 2-9 in preparing this preliminary decision. Comments from DNR Division of Mining Land and Water, Mining Section (2017) • Parcels 1, 8 and 9: Several small and medium sized drainages encompass the selected parcels.

Although there is no apparent mineralization present, it is recommended the state retain the mineral estates and place a mineral closure on the parcels if they are to be conveyed.

• Parcel 2: The parcel is located near the historic Alaska Endicott Mine and encompasses William Henry Creek at the head of William Henry Bay. The Alaska Endicott Mine operated from 1915 until 1925 and produced small amounts of gold, silver and copper. The area around William Henry Bay contains documented mineralization and maintains the possibility of being developed in the future. It is recommended that the State retain the land and mineral estate of Parcel 2. A split estate may cause unneeded delays or hardships in the future if attempts are made to open or reopen a mine in the area.

• Parcel 3 covers three small to medium size drainages and there is no apparent mineralization in the area. It is recommended that the state retain the mineral estate and places a mineral closure on the parcel if it is to conveyed.

• Parcels 4, 5, 6 and 7. These parcels are near Excursion Inlet. A mineral closing order is already in place on the selections and no apparent mineralization is present. It is recommended that the mineral estate is retained by the state if the parcels are to be conveyed.

DNR Response to Mining Section: The state does not have title to Parcels 1, 8 and 9, and thus will postpone a decision on conveying these parcels. Regarding Parcel 2, DNR has carefully considered these and other state agency comments, and determined the state’s interest in retaining this parcel outweighs the borough’s interest in obtaining it. Therefore, DNR proposes to reject conveyance of the parcel at William Henry Bay to the borough in this decision. On land conveyed to municipalities, the mineral estate is reserved to the state pursuant to AS 38.05.125. VII. DISCUSSION AND ALTERNATIVES

A. Discussion This preliminary decision for the Haines Borough municipal entitlement land selections covers approximately 2,621 acres of state land. DMLW proposes to approve for conveyance and transfer equitable title and management authority on 2,091 acres of state land, identified in Table A below. It also rejects 531 acres of municipal selections; these lands are to be retained in state ownership, and are identified in Table B, below. DMLW will postpone a decision on three additional parcels (Parcels 1, 8 and 9) that are not state-owned (see MAP 1).


DMLW proposes to reject Haines Borough’s selection of William Henry Bay – Parcel 2 (MAP 2) as municipal entitlement land, for reasons outlined below. When the NSEAP was adopted in October, 2002, it was not apparent that Parcel 2 contained mineral values, such as those identified by the DGGS in their 2012 mineralization and geologic report, and in their 2012 agency comments. Based on the new discovery of multiple rock samples and a stream-sediment sample with anomalous gold values, DGGS concluded the state land parcel has a high probability of gold mineralization. The Mining Section of DMLW also concluded that Parcel 2 contains documented mineralization and maintains the possibility of future development there. Based on these issues identified in the agency review, DMLW finds that the state’s interest in retaining Parcel 2 outweighs the borough’s interest in obtaining it. Therefore, DMLW proposes to reject Haines Borough’s selection of Parcel 2, William Henry Bay, as municipal entitlement land. DMLW also proposes to reject the borough’s selection at Western Excursion Inlet – Parcel 5 (MAP 4), because it is subject to a pending native allotment application (AA7923) which affects a significant portion of this management unit. This matter is currently being adjudicated by the federal government. Because of this, Parcel 5 does not qualify as VUU land. Accordingly, Parcel 5 is not eligible for municipal selection while pending the outcome of the federal adjudication of the native allotment application. Therefore, DMLW proposes to reject the Borough’s request to convey Parcel 5 in partial fulfillment of their supplemental municipal entitlement selection. This decision determines that the majority of the municipal selections adjudicated in this decision for which the state currently has title are appropriate for conveyance to the borough. These lands fall within a conveyable classification and there is no indication that the state’s interest in retaining these land selections outweigh the interest of the Haines Borough in obtaining them. A plan amendment to revise the management intent in Unit H-30 of the NSEAP is required in order to convey Parcel 3 (MAP 3), a plan amendment accompanies this decision. Pending approval of this amendment, the standard for conveyance of state land to the Haines Borough pursuant to AS 29.65 has been met and the conveyance of certain lands is appropriate. Management authority will be transferred once the Final Finding and Decision becomes effective. This decision further determines that, for those lands to be conveyed to the borough, that certain conditions and restrictions are appropriate and necessary to ensure the protection of important resources and public access. This decision therefore imposes restrictions and reservations that are to be part of the conveyance document, to ensure adherence to pertinent state statutes and administrative code.

B. Alternatives The following alternatives exist:

1. Take no action to approve, reject or postpone the Haines Borough land selections. This alternative would, in effect, preclude the borough’s ownership of lands considered to be important to their land base. This action would be inconsistent with the purpose of the Municipal Entitlement Act and


inconsistent with the basis for the disapproval of a municipal entitlement selection. Such selections can only be rejected when a state’s interests outweigh the interest of the borough, and there is no basis for such a determination.

2. Reject the borough’s selections in their entirety. This alternative would have the same effect as Alternative #1 and would, similarly, be inconsistent with the statutory basis for rejection of a municipal selection.

3. Approve in part with management authority transferred, reject in part

retaining state ownership, and postpone in part. This alternative is effective in meeting the intent of the Municipal Entitlement Act to convey appropriately classified state general grant land to the Haines Borough.

VIII. RECOMMENDATION A. Recommended Alternative

This decision determines that Alternative 3 is the preferred action and best fits the intent of the Municipal Entitlement Act. The Haines Borough land selections in part, are approved for conveyance, subject to the conditions, restrictions and reservations listed below.

B. Recommended conditions, restrictions and reservations Conditions

1. As provided by 11 AAC 51.035, the state will retain in state ownership to the bed of all navigable waters, including any waters determined to be navigable in fact, from the outermost OHWM, including all gravel bars and islands.

2. As required under AS 38.05.127 and 11 AAC 51, the location of the OHWM of navigable waters, including any waters determined to be navigable in fact, will be determined at the time of survey to determine the specific area to be retained by the state.

3. As required under AS 38.05.127 and 11 AAC 51, the location of the MHWM and OHWM of public waters will be determined at the time of survey.

4. Management authority will transfer to the Haines Borough on those lands approved for conveyance once the Final Finding and Decision becomes effective.

5. Management authority for public access easements is transferred to the Haines Borough once the FFD becomes effective. No such easements may be vacated, abandoned or otherwise extinguished or rendered incapable of reasonable use by the public without approval of the State of Alaska, unless an alternative means for reasonable public access is provided and approved by the state.

6. Administration of state leases and permits pertinent to the surface estate will be transferred to the Haines Borough once the Final Finding and Decision becomes effective. Administration of issued state leases and permits, in the mineral estate will remain with the state.


7. Once the FFD is effective, Haines Borough may execute conditional leases and make conditional sales on lands approved for conveyance, prior to issuance of a state patent in accordance with AS 29.65.070(b).

8. The net chargeable acreage approved for conveyance shall be credited towards partial fulfillment of the Haines Borough municipal land entitlement pursuant to AS 29.65.010.

9. Notification to the Alaska State Historic Preservation Office in accordance with AS 41.35.070(d) is required upon discovery of historic, prehistoric, or archaeological sites, locations, remains or objects.

Restrictions and Reservations Conveyance document will be issued subject to the following restrictions and reservations:

1. Valid existing rights, including reservations, easements, and exceptions in the U.S. Patent, or other state or federal conveyance, and in acts authorizing the issue thereof; easements, rights-of-way, covenants, conditions, reservations, notes on the plat, and restrictions of record, if any.

2. Reservation of easements provided in the Final Partial Judgment, United States of America vs. State of Alaska, et al, Case No. A-86-630 Civil (D-Alaska 1987), paragraph 5(a)(1-4).

3. Reservation of a 50-foot wide easement on each side of all surveyed and unsurveyed section lines in accordance with AS 19.10.010 and 11 AAC 51.025.

4. Reservation of a continuous public access easement, 50 feet wide, upland of and adjacent to the MHWM of marine waters pursuant to AS 38.05.127 and 11 AAC 51 (see TABLE 4).

5. Reservation of a continuous public access easement, 50 feet wide, upland of and adjacent to the OHWM of all navigable, waters determined to be navigable in fact, and public waters pursuant to AS 38.05.127 and 11 AAC 51 (see TABLES 4 & 5).

6. Reservation of the mineral estate pursuant to Section 6(i) of the Alaska Statehood Act and AS 38.05.125; and reservation of reasonably necessary access to the mineral estate in accordance with AS 38.05.130. C. Recommended Action on Municipal Selections

This decision recommends conveyance of certain state owned vacant, unappropriated, unreserved general grant land to the Haines Borough, rejects a portion of lands selected, and postpones a decision on three selected parcels, all located in the Copper River Meridian of Southeast Alaska.

LANDS PROPOSED FOR CONVEYANCE TABLE A below lists those lands proposed to be approved for conveyance in this decision. The estimated acreages for conveyance do not account for any exclusions, and exact acreages would be determined by survey. The final acreage amount will be credited towards partial fulfillment of the Haines Borough municipal land entitlement.


TABLE A

Map No. Parcel Name Parcel No. MTR Section and Legal Description Acres

MAP 3

Uplands Adjacent to

Lynn Islands Parcel 3

T.39 S., R.62 E.

Sec 9: SE1/4SE1/4

1,418.83

Sec 10: Sec 11: Lot 2 Sec 14: Fractional Sec 15: N1/2N1/2, SE1/4NE1/4, NE1/4SE1/4

MAP 4 Northeastern

Excursion Inlet Parcel 4

T.40 S., R.61 E. Sec 6: Lots 1, 2, and 3 and the E1/2NW1/4, as shown on plat of survey accepted July 18, 1985.

193.37

MAP 6 Central


T.40 S., R.61 E. Tract O ASLS 95-35 196.23

MAP 7 South Excursion

Inlet Parcel 7

T.40 S., R.61 E. Tract P ASLS 95-35

282.31

Sec 19, Lot 1

TOTAL APPROXIMATE ACRES 2,090.74

LANDS PROPOSED TO BE REJECTED

TABLE B lists those lands that were selected by the Haines Borough that are rejected for conveyance in this decision. These include lands to be retained by the state because the interest of the state outweighs that of the borough, or where the state has no ownership rights in the selected land.

TABLE B

Map No. Parcel Name Parcel No. MTR Section and Legal Description Acres

MAP 2 William Henry

Bay Parcel 2

T. 36 S., R. 61 E. Tract A 315.81

MAP 4 Western


T.40 S., R.60 E.

Sec 1: E1/2SE1/4, SW1/4SE1/4, S1/2SW1/4, excluding lands that are part of the Haines Borough Municipal Tideland Selection under ADL 106936.

200

Sec 2: Lot 1, excluding lands that are part of the Haines Borough Municipal Tideland Selection under ADL 106936.

15

TOTAL APPROXIMATE ACRES 530.81


LANDS POSTPONED

TABLE C lists those lands that were selected by the Haines Borough that are postponed for conveyance in this decision. These parcels are affected by Public Land Order (PLO) 5603, which requires that the United States retain the land in federal ownership. Although Parcels 1, 8 and 9 were state selected, the state selections cannot attach because the land is withdrawn under PLO 5603. Until such time as PLO 5603 is lifted and DNR’s selection falls into place, Parcels 1, 8 and 9 are not state owned or available for selection.

TABLE C

Map No. Parcel Name Parcel No. MTR Section

MAP 1 Katzehin River Parcel 1 T. 31 S., R. 60 E. Sections 3, 4, 9 and 10

MAP 1 Chilkoot Inlet North East Lynn Canal Parcel 8 T. 31 S., R. 60 E. Sections 14 and 15

MAP 1 Chilkoot Inlet South East Lynn Canal Parcel 9 T. 31 S., R. 60 E. Sections 25, 26, 35 and 36

IX. FINDINGS AND PRELIMINARY DECISION The following are the findings for this Preliminary Decision:

1. That it is appropriate to convey 2,090.74 acres of state owned land to the Haines Borough (Parcels 3, 4, 6 and 7 - MAPS 3 & 4). This decision determines that the interest of the state to retain this land does not outweigh the interests of the borough to obtain it.

2. That it is appropriate to reject 315.81 acres of borough land selections in William Henry Bay (Parcel 2 - MAP 2) where the interest of the state in retaining the land outweighs the interest of the borough in obtaining it.

3. That it is appropriate to reject 215 acres of borough land selections in Western Excursion Inlet (Parcel 5 - MAP 4) because the land is not VUU and thus is ineligible for conveyance.

4. That it is appropriate to postpone a decision on borough land selections in the Katzehin River/Chilkoot Inlet (Parcels 1, 8 and 9 – MAP 1) because the land does not belong to the state and cannot be conveyed.

5. That it is appropriate to prepare a Plan Amendment to the Northern Southeast Area Plan (2002) which would revise the management intent in Management Unit H-30 to indicate a State Marine Park is no longer recommended, and state retention of this management unit is no longer required.

This Preliminary Decision, described above, represents the preferred alternative that has been reviewed and considered. After review and consideration of materials in this PD, I find that the recommended action may be in the best interest of the state and that it is hereby approved to proceed to public notice.

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