Time is running out to fix the no more clause

We need federal legislation to “fix” ANILCA’s “No More” clause. To his credit Governor Dunleavy has written the President requesting his support for such a fix. Our Congressional Delegation needs to follow up Governor Dunleavy’s letter and push hard for a fix on the upcoming Reconciliation Bill.

Why is this needed?

In 1979 the Alaska Legislature urged the Congressional Delegation to include seven “Must Haves” in the Alaska National Conservation Act (ANILCA). Among them was the so-called “No More” clause. The “No More” clause reflected Alaskans’ outrage over the 127 million acres the 1979 House draft of ANILCA legislation proposed to set aside. Section 17(d)(2) of the 1971 Alaska Native Claims Settlement Act (ANSCA) had directed the Secretary of the Interior to withdraw up to 80 million acres of land from development for conservation purposes, which Alaskans considered “too much” already.

In contrast to the House draft the Senate’s 1979 ANILCA draft set aside 104 million acres. Senate Democrats wanted to strike an agreement on ANILCA during a time when both parties were uncertain whether Presidential candidate, Ronald Reagan would defeat President Jimmy Carter in the 1980 election. The Democrats believed that if ANILCA failed to pass and Ronald Reagan was elected, the new President would drive a harder bargain on ANILCA

In that spirit Senator Tsongas, who was the Democrats principal sponsor of ANILCA, agreed to include the No More clause in the Bill. During a colloquy with Senator Stevens on the Senate Floor on August 18, 1980, Senator Tsongas said:

Including this amendment would add a “no more: provision. This is one of the Alaska legislature’s seven consensus points... Basically, it provides that any future executive withdrawal for conservation system purposes would terminate if not ratified by passing a joint resolution of Congress within one year after the notice of such withdrawal has been submitted to Congress. Cong. Rec. Senate August 18, 1980, page S11047.

The colloquy between Senator Stevens and Senator Tsongas represented a compromise which would result in passage of a Bill with more than 80 million acres being set aside but with Congressional approval required for future land set asides from federal land in Alaska.

Using a dictionary definition of “withdrawal” and reading it in context, shows that Senators Stevens and Tsongas meant the “No More” clause would prevent federal agencies from “taking away” for “protection” or “setting aside” more than 5,000 acres of land then open to natural resource development. Whether this was done through rulemaking or land planning or public land orders did not matter – the No More clauses would apply.

But federal land in Alaska continues to be set aside from development in large amounts as if the “No More” clause is not a part of ANILCA. Why? Because ANILCA does not define the word “withdrawal.” In the absence of a definition of “withdrawal” in ANILCA a D.C. federal court applied the definition used in the 1976 Federal Land Management Policy Act: “A withdrawal makes land unavailable for certain kinds of private appropriation under the public land laws." Rulemaking and land planning do not “make land unavailable for certain kinds of private appropriation under the public land laws.”

This leaves any federal agency free to set aside any amount of federal land in Alaska it wishes as part of a land plan or through rulemaking. For example, the previous Administration designated approximately 1.5 million acres as “Areas of Environmental Concern” in the BLM's Central Yukon Plan and promulgated the 2023 Roadless Rule which set aside 9.4 million acres of the Tongass as “Roadless Areas.”

Congress needs to enact a definition of the word “withdraw” to give the “No More” clause the meaning and effect that the Alaska Legislature requested in 1979 and the makers of the “No More” compromise intended in 1980. Our Congressional Delegation needs to urge the inclusion of such a definition in the upcoming Reconciliation Bill and follow up Governor Dunleavy’s letter to the President.

Time is running out on this Congress. There is no guaranty that the next Congress will have Congressman Begich in the majority.

In conclusion, failure to fix the No More clause in the upcoming Reconciliation Bill will represent a major lost opportunity for Alaska to prevent agencies from setting aside land in Alaska through rulemaking and land planning.

Frank H. Murkowski is a former Alaska Senator and Governor.