How Biden can Reverse Trump’s Assault on Arctic Water and Subsistence Resources

By Hal Shepherd

“The effects of warming temperatures are already killing fish in the North and Golsovia Rivers that we rely on for fishing. If mining also takes place at the head of these rivers it will kill the salmon runs. Period.” Doug Katchatag, Unalakleet Alaska

As part of Donald Trump’s rush to approve a massive Arctic land giveaway on behalf of the extraction industry on the day before he left office, the Bureau of Land Management (BLM) issued a Record of Decision (ROD) and Approved Resource Management Plan (RMP) for the Bering Sea-Western Interior (BSWI) opening 99 percent of the 13.5-million-acre planning area, including critical subsistence rivers and streams, to mining and other development. 

Consistent with the Trump administration’s efforts to keep this massive land grab quiet, the planning process did not adequately analyze climate-related and other impacts. Moreover, the public comment period that followed the release of the draft RMP failed to adequately include and consult with Arctic Native tribes who live in the planning area and depend on affected subsistence resources for their physical and cultural survival. 

This failure to consult included BLM’s removal of protections for 7 million acres of Areas of Critical Concern (ACECs) over the strenuous objections of local Native Village communities. Similarly, just two days before President Joe Biden’s inauguration, based on recommendations contained in the existing Kobuk-Seward RMP, BLM announced it would withdraw the ANSCA protections for nearly 10 million acres of public land located in the northwest arctic, once again without consulting Federally recognized tribal entities. 

To put these regulatory roll-backs into perspective combined with the parallel efforts of the State of Alaska to fast-track mining permits and existing federal mining laws, one could obtain a permit to mining just about anywhere on 23.5 million acres of land in the Arctic with minimal analysis of the environmental impacts to biologically rich watersheds, fish and wildlife habitat, water quality or local communities. 

Alaska Native communities are unified in their opposition to the land give away and have been vehemently warning BLM of its consequences. Doug Katchatag, president of the Norton Bay Inter-Tribal Watershed Council and a resident of Unalakleet Alaska, said, “The effects of warming temperatures are already killing fish in the North and Golsovia Rivers that we rely on for fishing. If mining also takes place at the head of these rivers it will kill the salmon runs. Period.”

With Biden now in office after four disastrous years, the following are actions his administration can take to reverse or mitigate the wide spread assault on Arctic waters: 

Regulatory Freeze

Subject to urgent circumstances, the Director of the Office of Management and Budget may not propose or issue any rule, including submitting it to the Office of the Federal Register for publication, until a department or agency head appointed or designated by President Biden reviews and approves the rule. Because BLM’s final decision on the BSWI RMP was never sent to the Federal Register in accordance with a Whitehouse memorandum, final notice of the BSWI ROD was frozen by President Biden on his first day in office until a newly appointed department or agency head reviews and approves the rule. After such review Biden should throw out the RMP or re-open the planning process used to create it in order to reverse the potential damage to sensitive rivers and streams and conduct proper consultation with tribal entities.

Legal Issues

While the order opening the Kobuk-Seward planning area was published in the federal register just before President Biden was sworn in, according to the White House memo, newly appointed agency heads may “consider postponing the rules’ effective dates for 60 days” consistent with applicable law and subject to any emergency situations “for the purpose of reviewing any questions of fact, law, and policy the rules may raise.” The new administration should place the order on hold pending any legal review including whether proper consultation with federally recognized tribes occurred as required by existing executive orders and the federal trust duty. 

In fact, in order to allow for a review of “fact, law, and policy” related to last minute Trump administration regulatory roll-backs regarding public lands, on inauguration day, in a memorandum to department bureaus and offices, Biden’s new Secretary of Interior ordered all to stop “conveyances of property or interests in property, including land sales or exchanges, or any notices to proceed under previous surface use authorizations that will authorize ground disturbing activities” and not to “approve plans of operation, or to amend existing plans of operations under the General Mining Law of 1872.”

Also, there are clearly a number of legal flaws with the BSWI that warrant over-turning or re-opening the land management process. While BLM did offer to engage in government-to-government consultation in an e-mail sent to some tribes affected by the BSWI RMP, the e-mails failed to provide any explanation of the extent of the land base from which protections would be removed. This clearly is not in accordance with the agency’s requirement that it engage in “meaningful consultation” with federally recognized tribal entities and its trust obligations to such entities.

Similarly, there is BLM’s blatant refusal to designate a single one of the ACECs nominated by tribal entities in order to protect traditional subsistence resources within the BSWI planning area. In fact, contrary to regulations developed under BLM’s organic act, Federal Land Management and Policy Act, BLM first found that 17 of such areas met the proper statutory criteria for such designation but then in the FEIS, inexplicably, decided to not only move forward with nominations but removed another 1.8 million acres of existing conserved lands.

Finally, the required cumulative impacts analysis under the National Environmental Policy Act in the FEIS, completely ignores the effects that opening the entire planning area, including rivers and streams that contain critical fish and wildlife habitat, can have on reducing stream flows. Because, at just about any life stage, salmon need cold water, mining activity within these watersheds would exacerbate the impacts of higher temperatures on such habitat.

Legislation/Executive Orders

The RMPs’ impacts on fishery resources could be reversed if Biden works with a democratically controlled Congress to designate and protect previously designated ACECs, critical salmon habitat. to re-establish the withdrawn lands as was done under ANSCA by other legislation. The new administration could also issue executive orders establishing protection areas or directives to federal agencies that include tribal organizations in co-management or participation in management of critical salmon habitat on public lands. An example of such an order was the North Bering Sea Climate Resilience Area (NBSCRA) established by President Obama that withdrew waters in the Bering Sea region from oil and gas leasing and increased Alaska Native Tribal sovereignty in climate adaption planning by requiring their participation including the consideration of traditional knowledge in agency decision-making. Although the NBSCRA Executive Order was revoked by President Trump, Biden reinstated it on his first day in office. His administration could expand the NBSCRA to protect inland fresh water in addition to marine habitats that would cover the impacts of land uses such as mining resulting in protection for entire watersheds.  

Similarly, Lisa Murkowski promised to use legislation to require that agency policies pertaining to the Arctic be vetted by the region’s tribes and that analysis consider traditional indigenous knowledge. President Biden should work with Senator Murkowski and the new democratically controlled congress to move such legislation along. 

In addition, Biden could reverse other Trump mining-related roll-backs likely to impact Arctic rivers and streams, such as the proposed rule to add mining as a sector under Title 41 of the Fixing America’s Surface Transportation Act, (Fast-41) which was intended to focus on surface transportation such as highway, transit, and rail projects which typically have less impact on water and subsistence resources than natural resource extractive practices. Alaska’s Governor Michael Dunleavy, however, has been pushing to have proposed mining activity in the Arctic included in Fast-41 and other Trump mining fast-tracking rules that would stream line the permitting process including the required environmental analysis and public participation under the National Environmental Policy Act. 

Tribes Leading the Way

Because Arctic Native communities will be most affected by climate change and natural resources development on water and subsistence resources, they are the appropriate entities for taking the lead in addressing impact. In fact, some of these communities have been monitoring and speaking out against the impacts of mining and other development on critical salmon rivers and streams for years and are taking the lead in monitoring the effects of increased stream temperatures resulting in salmon die-offs. 

A Biden administration could assist Arctic village communities affected by existing or potential mining to develop such risk assessments. Also, the new administration should work with tribes and other stakeholders to develop maps pinpointing areas where subsistence resources are being impacted by climate change, and identifying how current or future land use activities may further exacerbate such impacts and how these impacts can be mitigated through regulatory, policy and other actions. 

A Biden administration has an opportunity to reverse the past administration’s denial of impending environmental catastrophe, including climate change, by working with arctic tribes who are asserting their sovereignty in order promote human rights and environmental justice.