Amicus Curiae Brief — Alaska v. Southeast Alaska Alaska Conservation Council (No. 07-990)

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Sn the Supreme Court of the Anited States

COEUR ALASKA, INC., Petitioner,

v.

SOUTHEAST ALASKA CONSERVATION COUNCIL, ET AL.

STATE OF ALASKA, Petitioner,

Vv.

SOUTHEAST ALASKA CONSERVATION COUNCIL, ET AL.

On Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

BRIEF OF THE

RESOURCE DEVELOPMENT COUNCIL

FOR ALASKA, INC.AS

AMICUS CURIAE IN SUPPORT OF PETITIONERS

MICHAEL JUNGREIS (Counsel of Record) JIM WILKSON

HARTIG, RHODES, HOGE & LEKISCH, P.C.

717 K Street

Anchorage, Alaska 99501* (907) 276-1592

COUNSEL FOR AMICUS CURITAE

—————— ET

ary

TABLE OF CONTENTS

STATEMENT OF INTEREST .........................eeeeees 1

PRELIMINARY STATEMENT...................0........... 3

SUMMARY OF ARGUMENT ......00000000..0..c eee 4

I ak ies ncticesstcninsicmtebscaeiieniiinbicheosisanesabiieanbstiiechiduniitaetin 6

I. THE SUCCESS OF THE ALASKA NATIVE

CLAIMS SETTLEMENT ACT DEPENDS

ON NATURAL RESOURCE

PES ET eascvcevinsivssdszsnssccscarsevssscenssoses 6

A. Congress intended that ANCSA allow

Alaska Natives to reap economic

benefits through natural resource

development on Native lands ............. 6

B. ANCSA’s requirement that Native

Corporations skare with one another

their resource development-

generated revenue ensures that all

ANCSA shareholders benefit from

I siccntsncchelielasinitedd coined adda tdhdabs tials thcsampaas 13

Il. MINING IS ONE OF ALASKA’S FASTEST-

GROWING INDUSTRIES, CREATING

THOUSANDS OF JOBS FOR ALASKANS

AND GENERATING HUNDREDS OF

MILLIONS OF DOLLARS IN REVENUE

PR EE SEITEN Sactecinnancnnsinanernicenseidedonssesens 14

III.

CONCLUSION

il

RESPONSIBLE RESOURCE

DEVELOPMENT IS CRUCIAL TO

FULFILLING THE PURPOSES OF

ANCSA, BUT THE NINTH CIRCUIT’S

DECISION THREATENS THE

ECONOMIC PROSPERITY MINING HAS

BROUGHT TO ANCSA CORPORATIONS

IN RECENT YEARG..................scesseeseeees

A. Limited economic opportunities for

Alaska Natives have mired rural

Native communities in poverty and

associated social problems................

B. Alaska’s growing mining industry

plays an increasingly crucial role in

fulfilling ANCSA’s economic purposes

and alleviating poverty amongst

pg ETE LIAR SLED OT GS SOTO AT BAER AID

1. Mining’s positive impact on rural

2. Increased mining in rural Alaska

benefits ANCSA corporations and

their Native shareholders ................

C. The Ninth Circuit’s decision

threatens to impede economically

20

beneficial mining projects and harm

Native Corporations and their

ss ceesinonnieiien

EEO

TABLE OF AUTHORITIES

Cases

Aleut Corp. v. Arctic Slope Regional Corp.,

421 F. Supp. 862 (D. Alaska 1976)..........

Amoco Production Co. v. Village of Gambell,

Se CN PED ciceniineccccspicccssicoccnssssece

Bowles v. Seminole Rock & Sand Co.,

325 U.S. 410, 414 (1945)...

Chugach Natives, Inc. v. Doyon,Lid.,

588 F.2d 723 (9th Cir. 1978):..................

City of Angoon v. Marsh,

749 F.2d 1413 (9th Cir. 1984).................

City of St. Paul v. Evans,

344 F.3d 1029 (9th Cir. 2003).................

Cook Inlet Beluga Whale v. Daley,

156 F. Supp. 2d 16 (D. D.C. 2001)..........

Doyon, Ltd. v. Bristol Bay Native Corp.,

569 F.2d 491 (9th Cir. 1978)...................

Koniag, Inc. v. Koncor Forest Resource,

39 F.3d 991(9th Cir. 1994)......................

Lesnoi, Inc. v. Stratman,

154 F.3d 1062 (9th Cir. 1998).................

in

cuiccinniats 6

iv

Rapanos et al v. United States,

547 U.S. 715 (2006) ..........c-cecececcccccesceesseeeeee 1,2

Schuliz v. Dept. of Army,

96 F.3d 1222 (9th Cir. 1996).......................000 1

SEACC v. U.S. Army Corps of Eng'rs,

486 F.3d 638 (9th Cir. 2007).................. 2. 7,

Tyonek Native Corp. v. Cook Inlet Region, Inc.,

853 F.2d 727 (Sth Cir. 1990)..................scescceees 6

Ukpeagvik Inupiat Corp. v. Arctic Slope Regional

Corp.,

517 F. Supp. 1255, (D. Alaska 1981).......... 5, 8

United States v. Atlantic-Richfield Co.,

435 F. Supp. 1009 (D. Alaska 1980)............... 4

Statutes

SESE TT 4, 12

43 U.S.C. § 1602.......... Ce a ee 5

EE ee OR EN passim

EERE TES eae eee meee NNN 6

alah cilities 5

RIOTS 6

SSL DEE, Foe 5, 6

Other Authorities

Alaska Dept of Commerce, Community, & Economic

Development, Alaska Economic Performance

SINE CII csccactinksinnsudceggenantopecenemnnbiniunniadaiucumnaie 12

Alaska Dept of Commerce, Community, & Economic

Development, Office of Economic Development:

Minerals Development..................cecceeeeeeeeees 11

Alaska Dept. of Labor & Workforce Development,

Alaska Economic Trends (Sept. 2008)..................... 9

Alaska Div. of Geological & Geophysical Surveys,

Alaska's Mineral Industry 2006: Special Report 61

Pp iccssnncacesndnceveesdivnrdinvetessdeensesenaeeanall passim

Alaska Minerals Comm’n, Report of the 2008 Alaska

I STA OLA LAER SE ET ee 9,12

Alaska Native Policy Center, Our Choices, Our

Future: The Status of Alaska Natives

i obcddeuduntiatvibayaiesiatabiatetenkeeaiabababtateel passim

Ass'n of ANCSA Presidents and CEOs,

Wooch Yaayi: Woven Together (2007)..................... 8

Elizabeth Bluemink, Donlin Creek gold supply leaps

77 percent, Anchorage Daily News (Feb. 9, 2008) 14

Envtl.Protection Agency et al, Alaska Wetlands

Initiative Summary Report (1994).................... 3,16

vi

Gigi Berardi, Natural Resource Policy, Unforgiving

Vv ask

Native Villages, 38 Nat. Resources J. 86

REDE LEE ne a 11, 15

James D. Linxwiler, The Alaska Native Claims

Settlement Act at 35: Delivering on the Promise, 53

Rocky Mtn. Min. L. Inst. 12 (2007).......... 5, 6, 8, 12

Lee Huskey, Alaska’s Village Economies, 24 J. Land

Resources & Envt’l L. 435 (2004) .............. 11, 14, 15

NANA Regional Corporation, Red Dog Mine ... 13, 14

Rachel King, Bush Justice: The Intersection of

Alaska Natives and the Criminal Justice System in

Rural Alaska, 77 Or. L. Rev. 1 (1998)................... 11

Rob Stapleton, Senate hearing in Bethel paints bleak

economic picture, Anchorage Daily News (Sept. 15,

a soubucnotonnenoreeooonece 1l

Stephen Colt, Article: Alaska Natives and the “New

Harpoon”: Economic Performance of the ANCSA

Regional Corporations, 25 J. Land Resources &

I EY SIE... . cc ccopenwcsecccososencccees passim

The Alaska Dept. of Labor & Workforce

Development, Preliminary 2007 Quarterly Census

of Employment & Wages ......................2.cccccececeee eee 9

Tim Bradner, Teck Cominco sets revenue records at

Red Dog mine, Alaska J. of Commerce (Nov. 4,

es speebrensecconcoses 13

U.S. Army Corps of Engincers/Alaska District:

EEE RE be 3

vii

U.S. Census Bureau, State Population Estimates —

Characteristics: Race and Hispanic Origin ............ 6

U.S. Dept. of Health & Human Serv., Overcoming

iness Economic Development

in Indian Country (2004)...........ccccccccsccccoccescsccscsscees 6

U.S. Gov’t Accountability Office, Contract

Ma ent: re Us Al Native

Corporations’ Special 8(a) Provisions Calls for

Tailored Oversight (Apr. 2006) ......................22- 6, 17

Legislative History

132 Cong. Rec. $8171 (June 23, 1986) ....................... 8

ets MI IG, GI, TID BR sevicccsccnecccsencocorsoscacsacnenins 7

Senate Rep. No. 92-405 (1971). ................--eceecseeeecees 10

STATEMENT OF INTEREST!

The Resource Development Council for Alaska,

Inc. (“RDC”) is an _ Alaska-based, non-profit,

membership-funded trade organization comprised of

businesses and individuals from all resource sectors

(oil and gas, mining, fishing, timber, and tourism), as

well as support sectors, labor unions, and local

governments. Of particular importance to the

discussion below, all thirteen Alaska Native Regional

Corporations created through the Alaska Native

Claims Settlement Act are members of the RDC.

Through the RDC, these interests work together to

promote and support responsible development of

Alaska’s natural resources.

As part of its mission, the RDC works with

federal, state, and local government officials to

provide information and analysis on public policy

issues of concern to its membership. The RDC’s

efforts in this regard include providing input on

implementation of the Clean Water Act, such as

1 This amicus brief is filed with the consent of the parties.

With the exception of the United States, all petitioners and

respondents have filed letters with the Clerk of the Court

consenting to the filing of amicus briefs pursuant to the Court's

Rule 37.3(a). Respondent United States’ letter of consent is

being filed with the Clerk of the Court together with this brief.

Under Rule 37.6, the amicus submitting this bref and its

counsel hereby represent that neither party to this case nor

their counsel authored this brief in whole or in part, and that no

person other than amicus paid for or made a monetary

contribution toward the preparation and submission of this

brief.

submitting comments on federal agency jurisdiction

following this Court’s decision in Rapanos v. United

States.

The RDC also regularly participates as an

amicus in federal court litigation centering on

resource development issues affecting Alaska. E.g.,

Amoco Production Co. v. Village of Gambell, 480 U.S.

531, 107 S. Ct. 13896, 94 L. Ed. 2d 542 (1987); Schultz

v. Dept. of Army, 96 F.3d 1222 (9th Cir. 1996); Cook

Inlet Beluga Whale v. Daley, 156 F. Supp. 2d 16 (D.

D.C. 2001).

Due to its potentially serious impact on the

responsible development of Alaska’s resources, and

especially because that impact will have a

disproportionately large effect on the state’s Native

community, the issue presented in this appeal is of

great importance to the RDC and its membership.

In Rapanos v. United States this Court

recognized that the Corps of Engineers and the EPA

have classified the “waters of the United States” to

comprise half of the land area of Alaska.2 In many

cases these waters are the only practical location

where mine tailings can be disposed of in an

environmentally-sound manner. But following the

Ninth Circuit’s flawed interpretation of the Clean

Water Act in Southeast Alaska Conservation Council

v. U.S. Army Corps of Engineers, all of these waters —

regardless of their suitability for use as disposal sites

* Rapanos, 547 U.S. 715, 722, 126 S. Ct. 2208, 2215, 165 L. Ed

2d 159 (2006) (plurality opimion) (Scalia, J.).

— are off-limits for mines using processes for which

effluent limitations have been adopted.

The Ninth Circuit’s decision is at odds with

the language and purpose of the Clean Water Act,

and promises to shackle responsible resource

development throughout Alaska. The Clean Water

Act should be read according to its plain language,

which calls for separate permitting schemes for the

disposal of mine tailings (i.e., “fill” under Section

404), and the discharge of pollutants (Section 402).

The Ninth Circuit’s erroneous conflation of these two

separate permitting schemes’ threatens’ the

feasibility of future development of Alaska’s resource

base.

Accordingly, the RDC participates in this

appeal for the purpose of assisting the Court in

understanding the practical implications of the

Ninth Circuit’s decision on the Alaska economy —

particularly the substantial harm to Alaska Native

corporations (the largest private landowners in the

state) and their shareholders (essentially co-

extensive with Alaska’s Native community) that

could result if this Court affirms the decision.

PRELIMINARY STATEMENT

Given the parties’ briefing already before the

Court, the RDC’s amicus brief will not address the

substantive legal issues at play in this appeal

regarding the intent of the Clean Water Act — other

than to agree with the petitioners and federal

respondents that the Ninth Circuit erred when it

declined to defer to the implementing agencies’

interpretation of the Act, and instead interpreted the

Clean Water Act in a manner contrary to the Act’s

plain language.

In addition, other amicus briefs submitted in

support of the petitioner discuss the impact the

Ninth Circuit’s decision will have on the mining

industry generally and those who depend on the jobs

and revenue mining generates in Alaska. The RDC’s

brief will thus focus specifically on the consequences

to Alaska’s Native Corporations and the Alaska

Native community, as well as to Alaska generally, if

this Court affirms the Ninth Circuit.

SUMMARY OF ARGUMENT

Alaska’s economy depends on_ responsible

development of its vast natural resources. Mining is

a critical part of that development. Alaska’s mining

industry is growing rapidly, with exploration and

development occurring throughout the state. Mining

provides revenue and employment opportunities that

benefit the entire state. But as the Kensington mine

(the subject of this appeal) illustrates, the Ninth

Circuit’s decision threatens to dismantle this critical

economic engine.

This threat holds true for Native Corporations

established through the Alaska Native Claims

Settlement Act (“ANCSA”). Congress enacted

ANCSA in order to provide a means by which Alaska

Natives could derive economic benefits from the

resources around them. Native Corporations are the

largest private landowners in Alaska, with title to

tens of millions of acres of selected land throughout

the state. Mining offers Native corporations a real

opportunity to generate jobs and other economic

benefits for their Native shareholders, and fulfill the

implicit promise Congress made to Alaska Natives

when it offered them resource-rich lands in exchange

for extinguishment of their aboriginal claims.

A growing number of Alaska Native

Corporations are fulfilling ANCSA’s economic goals

by partnering with the mining industry in resource

development projects around the state. These

partnerships are helping to make ANCSA’s economic

promise to Alaska Natives become a reality.

But the Ninth Circuit’s decision promises to

derail this trend. As this Court itself recognized in

Rapanos, 547 U.S. at 722, 126 S. Ct. at 2215, the

EPA and Corps of Engineers have declared nearly

“half of Alaska” (approximately 175 million acres —

bigger than Texas) as waters or wetlands subject to

regulation under the Clean Water Act. Given this

abundance, it is virtually impossible to develop large-

scale mining projects in Alaska that do not affect

wetlands or other waters that are subject to Clean

Water Act regulation. Wetlands are especially

pervasive in rural western and northern Alaska,

where resource development offers the best realistic

3 Amicus Brief of Council of Alaska Producers in support of

Petitioner at 4-5 (ciiing Envt'l Protection Agency et al, Alaska

Wetlands Initiative Summary Report at 2 (1994). See aiso U.S.

Army Corps of Engineers/Alaska District: Regulatory Program,

http://www.poa.usace.army.muil/reg (last visited Sept. 12, 2008).

chance for private-sector investment and_ real

economic growth.

The Ninth Circuit's decision requiring that a

Section 404 fili permit be contingent on compliance

with Sections 301, 306 and 402 of the Clean Water

Act has created a broad prohibition against utilizing

Alaska’s waters when any of a number of

conventional mining processes are used, as mining

inherently produces tailings. This decision unduly

ties the hands of the federal permitting and land

management agencies charged with implementing

the Act, and overturns by judicial fiat the

longstanding role of these agencies in devising

workable mine tailings disposal plans. The court of

appeals decision promises to hobble _ resource

development on ANCSA lands, to the economic

detriment of Native Corporations and their Alaska

Native sharcholders.

ARGUMENT

I. THE SUCCESS OF THE ALASKA NATIVE

CLAIMS SETTLEMENT ACT DEPENDS

ON NATURAL RESOURCE

DEVELOPMENT

A. Congress intended that ANCSA

allow Alaska Natives to reap

economic benefits through natural

resource development on Native

lands

Congress enacted the Alaska Native Claims

Settlement Act, 43 U.S.C. § 1601 et seg., in 1971.4

Through ANCSA, Congress intended to resolve

pending aboriginal land and hunting and fishing

claims in Alaska by extinguishing those claims in

return for granting native organizations fee title to

selected lands.

ANCSA also gave Alaska Natives a direct

stake in Alaska’s economic development.®

Commentators have observed that “ANCSA was

intended to be a development tool as much as a

claims settlement, a way for one of America’s poorest

minority groups to escape from poverty on a self-

determined path”,’? and that ANCSA “was drafted

from the beginning with profitable business activities

and resource developments in mind, so it can be

viewed as a unique response to the interaction of

native peoples and mineral development.”

4 Pub. L. 92-203, 85 Stat. 688 (Dec. 18, 1971) & ANCSA

Amendments of 1987 (Act of Feb. 3, 1988, Pub. L. No. 100-241,

101 Stat. 1788).

5 43 U.S.C. § 1601(a). See generally United States v. Atlantic-

Richfield Co., 435 F. Supp. 1009, 1014-1020 (D. Alaska 1980),

aff'd, 612 F.2d 1132 (9th Cir. 1980), cert. denied, 449 U.S. 888,

101 S. Ct. 243, 66 L. Ed. 2d 113 (1980) (describing in detail the

history leading up to passage of ANCSA and the purposes and

effect of the Act).

6 443 U.S.C. § 1601(b). See also ANCSA Amendments of 1987.

7 Stephen Colt, Article: Alaska Natives and the “New

Harpoon”: Economic Performance of the ANCSA Regional

Corporations, 25 J. Land Resources & Envtl. Law 155, 157

(2005) (footnotes & citations omitted).

8 James 1). Linxwiler, The Alaska Native Claims Settlement Act

at 35: Delivering on the Promise, 53 Rocky Mtn. Min. L.. Inst. 12

at 4 (2007).

Working in cooperation with Alaska Natives,’

Congress crafted an innovative way to _ settle

aboriginal land claims and to allow a means for

Natives to become real stakeholders in Alaska’s

economy and the development of its resources: the

Alaska Native Corporation.!°

ANCSA divided Alaska into twelve geographic

regions. Alaska Natives then organized a “Regional

Corporation” for each region.'! Each region also

contains numerous smaller “Village Corporations”

(about 225 in _ all).!? ANCSA required every

corporation to be organized under Alaska law.!? (In

addition, a thirteenth Regional Corporation was

®’ ANCSA defines the term “Native” to mean a United States

citizen who is one-fourth degree or more Alaska Indian,

Eskimo, or Aleut blood. 43 U.S.C. § 1602(b).

10 43 U.S.C. § 1606. See Colt, supra, 25 J. Land Resources &

Envtl. L. at 157-159.

1 43 U.S.C. § 1606(a) & (d). See Ukpeagvik Inupiat Corp. v.

Arctic Slope Regional Corp., 517 F. Supp. 1255, 1256 (D. Alaska

1981).

12 43 U.S.C. § 1610(b). See Colt, supra, 25 J. Land Resources &

Envt’l. L. at 155 (map showing all regional and Village

Corporations). Villages eligible to form corporations under

ANCSA “were defined as communities, neither modern nor

urban, composed of at least twenty-five Natives, with Natives

representing at least fifty percent of the village population.”

Jkpeagvuik Inupiat Corp., 317 F. Supp. at 1256 (citing 43 U.S.C.

§ 1610(b)(2)).

'3 43 U.S.C. §§ 1606-1607. See generally Doyon, Ltd. v. Bristol

Bay Native Corp., 569 F.2d 491, 493 (9th Cir. 1978).

subsequently formed for non-resident Alaska

Natives. !*)

Following incorporation, all eligible Alaska

Natives within a particular region who were alive on

December 18, 1971 (the date of the Act) received 100

shares of stock.'® In addition, Alaska Natives who

also lived in an eligible village became village

stockholders. (Natives residing outside an eligible

village became at-large Regional Corporation

stockholders.'*) Finally, following Congressional

amendments to ANCSA in 1991, the Act authorizes

Regional Corporations to issue additional shares to

so-called “after borns” — Alaska Natives born after

December 18, 1971 and their descendents.!’

Virtually every Alaska Native is now an ANCSA

shareholder.!8

14 43 U.S.C. § 1606(c). See 13th Regional Corporation website

at http://www.the 13thregion.com (last visited Sept. 11, 2008).

15 43 U.S.C. § 1606(g).

16 See Ukpeagvik Inupiat Corp., 517 F. Supp. at 1257, n. 5

(citing 43 U.S.C. § 1606(g)). Four “urban corporations” in four

specified areas (Sitka, Kenai, Juneau, and Kodiak) were also

formed. 43 U.S.C. § 1613(h)(3). “Native group” corporations,

consisting of communities of less than 25 but more than 3

Natives who comprise a majority of the residents of the locale,

are also eligible to form corporations. 43 U.S.C. § 1613(h)(2).

17 43 U.S.C. § 1606(g) & (h). See Linxwiler, supra, 53 Rocky

Mtn. Min. L. Inst. at 12-20.

'® Alaska’s estimated population in 2007 for those identifying

themselves as “Alaska Native or American Indian” stood at

103,690. U.S. Census Bureau, State Population Estimates -

Characteristics: Race and Hispanic Origin,

http://www.census gov/popest/states/asrh/SC-EST2007-04.htm)l/

(then follow “Estimates of the Population by Race and Hispanic

Origin for the United States: July 1, 2007” hyperlink). In Fiscal

Year 2004, the thirteen Regional Corporations had about

10

Through this complex legislative scheme,

Regional and Village Corporations effectuate ANCSA

and serve the settlement beneficiaries and corporate

shareholders — Alaska Natives.!%

Key to the viability of the Native Corporations

was the right granted to each to select and own land

in fee simple. Through ANCSA, the twelve regional

Native Corporations were able to _ select for

conveyance from the United States a total of 44

million acres of land.2° (The thirteenth regional

corporation established for non-Alaska resident

Natives does not own land.?!) Additionally, the

Regional Corporations own the subsurface rights

(including mineral rights) to 22 million acres of

Village Corporation lands.? The land grant to the

twelve regional corporations made Native

Corporations the largest private landowners in

Alaska.23

102,000 shareholders. U.S. Gov't Accountability Office,

Contract Management: Increased Use of Alaska Native

Corporations’ Special &(a) Provisions Calls for Tailored

Oversight 81 (GAO 06-399, Apr. 2006), available at

http://www.gao.gov/new.items/d06399.pdf (last visited Sept. 18,

2008).

'9 43 U.S.C. § 1606(g); 43 U.S.C. § 1607(c). See Kontag, Inc. v.

Koncor Forest Resource, 39 F.3d 991, 995 (9th Cir. 1994).

20 43 U.S.C. § 1611. See also Doyon, Ltd., 214 F.3d at 1311

(explaining ANCSA land grants).

21 43 U.S.C. §§ 1606 (c), 1611.

22 See 43 U.S.C. § 1613(f); Lesnot, Inc. v. Stratman, 154 F.3d

1062 (9th Cir. 1998); See Tyonek Native Corp. v. Cook Inlet

Region, Inc., 853 F.2d 727, 730 (9th Cir. 1990)

23, US. Dept. of Health & Human Serv., Overcoming Challenges

to Business and Economic Development in Indian Country at 43

11

Congress intended for ANCSA land to provide

economic benefits to the Regional and Village

Corporations and their shareholders.24 As the Ninth

Circuit recounted in Chugach Natives, Inc. v. Doyon,

Ltd., 588 F.2d 723 (1978):

The land grant under ANCSA was a

generous one, clearly intended to exceed

the subsistence needs of Natives and to

give them a significant economic stake

in the future development of Alaska. As

stated by the House Committee on

Interior and Insular Affairs: The

acreage occupied by villages and needed

for normal village expansion is less than

1,000,000 acres. While some of the

remaining 39,000,000 acres may be

selected by the Natives because of its

subsistence use, most of it will be

selected for its economic potential.25

Congress intended for mineral development to

be one of the primary means for realizing the Native

lands’ economic potential. The House Committee on

Interior and Insular Affairs stated that the Regional

Corporations were to:

(2004), avatliable at http://aspe.hhs.gov/hsp/wtw-grants-

eval98/tribal-dev04/report.pdf (last visited Sept. 17, 2008).

24 See City of St. Paul v. Evans, 344 F.3d 1029, 1031-1032 (9th

Cir. 2003).

25 Jd. at 731 (citing H.R. Rep. No. 92-523 (92d Cong., lst Sess.

5, reprinted in U.S. Code Cong. & Admin. News pp. 2192, 2195)

(1971) (emphasis added).

12

each share equally in

the mineral developments.

The mineral deposits

[are] included as part of

the total economic

settlement. We feel it is

very important for these

mineral deposits to be

available to all of the

natives to further their

economic future.26

Accordingly, the Regional Corporations used

mineral potential as a prime criterion in choosing

their land selections.2?

ANCSA’s | statutory provisions and _ its

legislative history make clear that resource

development is one of the primary means by which

Congress intended to enable Native Corporations to

bring economic benefits to their shareholders. But

the Ninth Circuit's flawed interpretation of the Clean

Water Act in SEACC vu. Corps of Engineers threatens

to stymie the economic development purposes of

ANCSA, to the detriment of all Native Corporations

and of the Native community generally.

26 H.R. 92-523 (Sept. 28, 1971).

27 Cf. Aleut Corp. v. Arctic Slope Regional Corp., 421 F. Supp.

862, 866 (D. Alaska 1976).

13

B. ANCSA’s requirement that Native

Corporations share with one

another their resource

development-generated revenue

ensures that all ANCSA

shareholders benefit from mining

When Congress enacted ANCSA, it recognized

that the subsurface mineral wealth and economic

potential of the lands selected by the Native

Corporations would not be uniformly distributed. So

ANCSA contains a natural resource revenue-sharing

provision: Section 7(i).78

ANCSA Section 7(i) is “intended to achieve a

rough equality in assets among all the Natives. .. .

(The section) insures that all of the Natives will

benefit in roughly equal proportions from these

assets.”’29 As recited by the Ninth Circuit, under

Section 7(i):

70% of all revenues received by each

Regional Corporation from timber and

subsurface estate resources must be

28 43 U.S.C. § 1606(1) (ANCSA § 7(1)). See generally, Linxwiler,

supra, 53 Rocky Mtn. Min. L. Inst. At 12-25-29.

29 Chugach Natives, Inc., 588 F.2d at 732 (quoting Aleut Corp..

421 F. Supp. at 867). See also Ukpeagvik Inupiat Corp., 517 F.

Supp. at 1257 (‘Section 1606(i) ... achieves a rough equality by

allowing for the fact that some regions are resource-poor, while

others possess a weaith of natura! resources”); 132 Cong. Rec.

$8171 (June 23, 1986) (Scnator Stevens, in describing scction

7(i) distributions, stating that Regional Corporations “are

merely acting as agents for the other Native Corporations so far

as these revenues are concerned”).

14

divided among all 12 Regional

Corporations in proportion to the

number of Natives enrolled in each

region. At least 50% of the revenues so

received must be redistributed among

the Village Corporations.*°

Section 7(i) mandates that when mineral or

timber resources are developed on Native

Corporation land, all 102,000 ANCSA Native

shareholders?! benefit. As of 2007, more than $760

million has been redistributed amongst the Regional

Corporations under Section 7(i).32 In 2007 alone,

$125 million in mining industry payments to Native

Corporations were redistributed amongst Regional

and Village Corporations.**

Il. MINING IS ONE OF ALASKA’S FASTEST-

GROWING INDUSTRIES, CREATING

THOUSANDS OF JOBS FOR ALASKANS

AND GENERATING HUNDREDS OF

MILLIONS OF DOLLARS IN REVENUE

FOR THE STATE

30 Chugach Natives, Inc., 588 F.2d at 724 (footnote omitted)

(citing ANCSA § 7Q) (43 U.S.C. § 1606Q)) (footnote omitted).

3} US. Gov't Accountability Office, Contract Management:

Increased Use of Alaska Native Corporations’ Special 8(a)

Provisions Calls for Tailored Oversight 8&1.

32 Ass'n of ANCSA Presidents and CEOs, Wooch Yaayt: Woven

Together at 14 (2007).

SS Amicus Curiae Brief of Pacific Legal Foundation in support

of Petitioners at 16.

15

Mining is one of the fastest-growing industries

in Alaska. The value of the state’s mining industry

is now well over $1 billion annually, and growing

rapidly.34 The Alaska Minerals Commission reports

that revenue to the State of Alaska from the

minerals industry increased an astounding 292

percent between 2006 and 2007,°5 totaling $151.6

million in Fiscal Year 2007.

As of 2006, thirty-three hard-rock or coal

mines were in the operational, exploration or

development stage — all in remote, rural parts of

Alaska.26 These mines have so far generated

thousands of jobs throughout the state. The Alaska

Division of Geological & Geophysical Survey reported

that the mineral mining industry employed an

estimated 3,523 full-time workers in 2006 — an

increase of 702 jobs from 2005.37 And the number of

mineral mining jobs in the state increased 23 percent

_——— ee

34 Alaska Dept. of Commerce, Community, & Economic

Development, Office of Economic Development: Minerals

Development,

http://www.commerce.state.ak.us/oed/minerals/mining.htm (last

visited Sept. 12, 2008).

35 Alaska Minerals Comm'n, Report of the 2008 Alaska

Minerals Comm'n at iv, available at

http://www .commerce.state.ak.us/oed/minerals/pub/mineralsrep

ort2008 web.pdf (last visited Sept. 12, 2008).

4% Alaska Div. of Geological & Geophysical Surveys, Alaska’s

Mineral Industry 2006: Special Report 61 at 5 (2006), available

al

http://www _.dggs.dnr state.ak.us/pubs/pubs?reqtype=citation&l

D=15860 (last visited Sept. 16, 2008).

37 Id at 2.

16

between 2000 and 2007.38 Additionally, the mining

support activities industry provided an average of

7,606 jobs during 2006.89

Just as important, Alaska mining jobs pay top

wages. The Alaska Department of Labor &

Workforce Development reported that the average

monthly income for non-oil and gas related mining

occupations in 2007 was $6,884 — or approximately

$82,608 per year — more than double the average

annual salary for all occupations in Alaska during

the same year.” Workers in the mining support

industry earned even more, with an average monthly

income of $7,183 in 2006.41 These facts show how

the mining industry can improve economic conditions

for Alaska generally and ANCSA shareholders in

particular.

38 Alaska Dept. of Labor & Workforce Development, Alaska

Economic Trends at 8 (Sept. 2008), available at

http://labor.alaska.gov/trends/sep08 pdf#art1 (last visited Sept.

16, 2008).

3% Alaska Div. of Geological & Geophysical Surveys, supra, at 2.

40 The Alaska Dept. of Labor & Workforce Development,

Preliminary 2007 Quarterly Census of Employment & Wages at

1, available at http://www.labor.state.ak.us/research/ee/ee07.pdf

(last visited Sept. 12, 2008).

41 Alaska Div. of Geological & Geophysical Surveys, supra at 2

(2006).

17

HiIl. RESPONSIBLE RESOURCE

DEVELOPMENT IS CRUCIAL TO

FULFILLING THE PURPOSES OF

ANCSA, BUT THE NINTH CIRCUIT'S

DECISION THREATENS THE

ECONOMIC PROSPERITY MINING HAS

BROUGHT TO ANCSA CORPORATIONS

IN RECENT YEARS

A. Limited economic opportunities for

Alaska Natives have mired rural

Native communities in poverty and

associated social problems

Generating revenue through natural resource

development on Native Corporation lands in Alaska

— and the sharing of the wealth created under

Section 7(i) — is critical to fulfilling ANCSA’s purpose

of creating economic opportunities for Alaska

Natives.

When it enacted ANCSA, Congress saw a way

to end the poverty that gripped many Alaska Native

communites.42 As the Senate Committee on Interior

and Insular Affairs reported while deliberating the

Act:

[Alaska Natives] are

among the most

disadvantaged citizens of

the United States in terms

42 See Colt, supra, 25 J. Land Resources & Envtl. L. at 157-158

& n. 13.

18

of income, employment,

educational attainment,

life expectancy, health,

nutrition, housing, and

every important indicator

of social welfare.*3

Today, many rural Alaskans still are hard put

to make ends meet. Alaska Natives comprise 82

percent of the population in rural parts of the state.“

Poverty and unemployment rates amongst rural

Alaskans — particularly rural Alaska Natives — still

far outpace those of their urban Alaska

counterparts.45 Per-capita income of Alaska Natives

is about half that of non-Natives.*

The geography of rural Native Alaska is at the

root of these statistics. The small size and

remoteness of rural Alaska villages limit their

economic potential; nearly all of these communities

are accessible only by plane, or in some cases, by boat

in the warmer months.‘7 The lack of arable land and

43 Senate Rep. No. 92-405, at 72 (1971).

44 Alaska Native Policy Center, Our Choices, Our Future: The

Status of Alaska Natives 2004 at 5, available at

http://www _.firstalaskans.org/documents_fai/ANPCa pdf (last

visited Sept. 17, 2008).

1S See id. at 86-89; Lee Huskey, Alaska's Village Economies, 24

J. Land Resources & Envt'l L. 435, 437, 440-43 (2004) Alaska

Native Policy Center, Our Choices, Our Future: The Status of

Alaska Natives at 63.

J.A. 503a, 4 20.

* Huskey, supra, 24d. Land Resources & Envt'l L. at 437

(2004).

19

other resources necessary for industry to take hold

also inhibits economic development.‘*8

The precipitously high cost of living

exacerbates the economic hardships in Alaska’s

“bush.”49 Alaskans living in rural villages pay

extraordinarily high prices for energy,

transportation, and communications due to their

communities’ isolation far from the road system,

their villages’ low populations, and the verities of

Alaska’s extreme climate.” In some villages,

transportation costs alone may double the price of

goods and services.5! The price of home heating oil in

many villages in rural Alaska now hovers around

$9/gallon, with a _ gallon of milk approaching

$11/gallon — and the lack of economic opportunities

available to offset these costs has caused a “social

and cuitural crisis” of “out-migration” from villages

to urban Alaska.52

Mining on ANCSA lands counters these

economic challenges by stimulating the job market

48 See Gigi Berardi, Natural Resource Policy, Unforgiving

Geographies, and Persistent Poverty in Alaska Native Villages,

38 Nat. Resources J. 86, 87 (1998)

49 In Alaska, small, rural, difficult to access, and usually

largely-Native communities are commonly referred to as “bush”

communities. See, e.g., Rachel King, Bush Justice: The

Intersection of Alaska Natives and the Criminal Justice System

in Rural Alaska, 77 Or. L. Rev. 1 (1998).

50 Berardi, supra, 38 Nat. Resources J. at 96-97.

3) Id. at 87-88.

52 Rob Stapleton, Senate hearing tn Bethel paints bleak

economic picture, Anchorage Daily News (Sept. 15, 2008),

available at http://www.adn.com/money/story/526301 html.

20

and providing greater financial self-sufficiency for a

growing number of ANCSA Native shareholders.

B. Alaska’s growing mining industry

plays an increasingly crucial role in

fulfilling ANCSA’s economic

purposes and alleviating poverty

amongst Alaska Natives

a. Mining’s positive impact on rural

Alaska

Rural Alaska is just beginning to benefit

economically from the state’s growing mining

industry. The Alaska Minerals Commission reports

that the mining industry’s growth has created a

significant need for skilled workers — and the

opportunity to bring employment and private-sector

investment to rural Alaska.®* And according to the

Alaska Department of Commerce, employment in the

mining industry is a significant contributor to rural

employment and corresponding economic

prosperity.*4

2. Increased mining in rural Alaska

benefits ANCSA corporations and

their Native shareholders

* Alaska Minerals Comm'n, Report of the 2008 Alaska

Minerals Comm'n at 8.

* Alaska Dept. of Commerce, Community, & Economic

Development, Office of Economic Development, Minerals

Development.

21

In the years following passage of ANCSA,

some Regional Corporations struggled to realize the

promise of ANCSA.55 But the situation has begun to

turn around within the last ten years or so, and a

majority of Native Corporations now generate

significant profits and _ distribute’ substantial

shareholder dividends.56 While many factors have

played into the ANCSA corporations’ success,57

resource development on corporate lands is now a

major contributor to this turnaround.

The NANA Regional Corporation (located in

the remote far northwest corner of Alaska)** provides

the preeminent example of how large-scale mining

can help fulfill ANCSA’s promise of meeting the

“economic and social”5? needs of Alaska Natives. As

part of its ANCSA land selections, NANA took title

to lands in northwest Alaska that contain the world’s

largest zinc deposit.6° The Red Dog Mine -— the

55 Colt, supra, 25 J. Land Resources & Envtl L. at 160;

Linxwiler, supra, 53 Rocky Mtn Min. L. Inst. at 12-60 — 12-61.

56 Colt, supra, at 162-163; Linxwiler, surpra; Alaska Dept. of

Commerce, Community, & Economic Development, Alaska

Economic Performance Report 2005: Alaska Native Corporations

at 17-21 (available at

http://www .commerce state ak.us/dca/pub/AEPR_Web_2005. pdf

) dast visited Sept. 12, 2008). For instance, in 2004, the

thirteen Regional Corporations and twenty-nine Village

Corporations survcyed generated combined revenue of $4.47

billion, distributed $117.5 million in dividends, and employed

3,116 Alaska Native shareholders. Linxwiler, supra, at 12-61.

5? Id.

58 43 U.S.C. § 1606(a)(3). See NANA Corporation website, at

http://www.nana.com (last visited Sept. 12, 2008).

99 43 U.S.C. § 1601(b).

60 See Colt, supra, 25 J. Land Resources & Envtl L. at 161.

22

world’s largest zinc mine — was developed on this

land.£! The Red Dog Mine is operated through a

joint venture arrangement between NANA and Teck

Cominco Alaska Incorporated.®2

NANA and its shareholders reap’ great

benefits from this arrangement. In 1996, NANA

shareholders held almost 50 percent of the jobs at

Red Dog Mine.®3 More recently, shareholder

employment at the mine has reached 60 percent.®4

(Through the joint venture agreement, the long-term

goal for shareholder employment is 100 percent.®)

In 2007, Red Dog Mine supported 475 full-time jobs

(plus 80 part-time jobs) with a total payroll of $48.9

million.66 The partnership also provides many other

economic and social benefits to NANA and its

shareholders. §7

6! See NANA Regional Corporation website,

http://www.nana.com/ (last visited Sept. 12, 2008, supra); Teck

Cominco: Red Dog Mine,

http://www.teckcominco.com/Generic.aspx? PAG E=Red+Dog+Sit

ce%2FNANA&portalName=

tce/ (last visited Sept. 12, 2008).

62 Jd.

63 Colt, supra, 25 J. Land Resources & Envtl L. at 161.

64 NANA Corporation: Red Dog Mine, available at

http://www.nana.com/pdfs/NANA%20and%20Mining.pdf (last

visited Sept. 12, 2008).

6 Id.

66 Teck Cominco: Economic Benefits to Alaskans,

http://www.teckcominco.com (last visited Sept. 12, 2008).

*? NANA Regional Corporation, Red Dog Mine 15, available at

http://www.nana.com (last visited Sept. 18, 2008).

23

On top of these benefits, Teck Cominco also

pays substantial royalties to NANA. Teck Cominco

has paid $222 million in royalties to NANA since

1982; NANA received $58 million in royalties in 2007

alone. While much of this revenue goes back to

NANA shareholders, through the revenue-sharing

provisions of ANSCA § 7(i), most of this revenue goes

to other regional and village Native Corporations and

their shareholders.®

Other Native Corporations are now

attempting to recreate the success of the Red Dog

mine on their own lands. The Calista Corporation is

another example—it is one of the twelve regional

land-owning Native Corporations (and one of the

largest, with 13,000 shareholders”), and owns land

in southwest Alaska.”7! Southwest Alaska is one of

the poorest regions of the state, with high

unemployment, and low per capita income relative to

the extreme cost of living.72 An estimated 25 percent

68 Id.

68 43 U.S.C. § 1606(i), G). See also NANA Corporation: ANCSA

at 3, available at http://www.nana.com/pdfs/ANSCA pdf (last

visited Sept. 12, 2008); Tim Bradner, 7'eck Cominco sets revenue

records at Red Dog mine, Alaska J. of Commerce (Nov. 4, 2007),

available at

http://www.alaskajournal.com/stories/1t10407/nat_20071104022.

shtm! (last visited Sept. 12, 2008).

0 Colt, supra, 25 Land Resources & Envtl L. at 161-162.

™ 43 U.S.C. § 1606(a)(A). See Calista Corporation, website,

http://www.calistacorp.com/ (last visited Sept. 12, 2008).

7 Colt, supra, at 161-162; Huskey, supra, 24.J. Land Resources

& Envtl, L. at 438-443.

24

of the Native population in southwest Alaska lives in

poverty — more than any other region in the state.73

The Donlin Creek Gold Mine project holds the

potential to increase the economic opportunities

available to Calista shareholders. Donlin Creek is a

world-class gold deposit on native land owned by

Calista and the Kuskokwim Village Corporation.”4

The Donlin Creek deposit is estimated to hold over

29.5 million ounces of gold (worth over $26.5 billion

at current prices).?75

If it is developed, Donlin Creek holds the

potential to be the “next Red Dog” for the Calista and

Kuskokwim Native Corporations and_ their

shareholders.76 Donlin Creek is currently in the

advanced exploration and pre-development stages,

and the Donlin Creek Project is now “the single

largest economic stimulus in the Kuskokwim

Region”, according to the Calista Corporation.7?

73 Alaska Native Policy Center, Owr Choices, Our Future: The

Status of Alaska Natives 2004 at 100.

74 See Ehzabeth Bluemink, Donlin Creek gold supply leaps 77

percent, Anchorage Daily News (Feb. 9, 2008), available at

http://www.adn.com/money/story/309877.htm! (last visited Sept.

12, 2008).

75 Td.

76 NANA Corporation: Red Dog Mine at 1, available at

http://www.nana.com/pdfs/NANA%20and%20Mining.pdf (last

visited Sept. 12, 2008).

77 Calista Corporation: Land & Natural Resources: Donlin

Creek,

http://www.calistacorp.com/landresources/projects/donlincreek.a

sp (last visited Sept. 12, 2008).

25

Mine operators NovaGold Resources and

Barrick Gold Corporation have spent $120 million on

the Donlin Creek project. As of 2006, Alaska Natives

(Calista and Kuskowkwim shareholders) made up 93

percent of the Donlin Creek workforce; these

employees have cumulatively earned in excess of $2

million per year from the project.72 And these

workers came from twenty-three villages in the rural

Yukon-Kuskokwim region surrounding Donlin Creek

— where economic needs are most acute.79

Red Dog and Donlin Creek merely exemplify

the critical role mining serves in fulfilling ANCSA’s

economic promise — not only to NANA and Calista

and their shareholders, but under ANCSA § 7(i), to

all Native Corporations and their shareholders. In

addition, mining provides economic benefits to

Native corporations and communities beyond the

rents and royalties paid to ANCSA Corporations, as

illustrated in the next section regarding Goldbelt

Inc’s relationship with the Kensington mine. By

generating revenue and jobs, large-scale mining is

helping to fulfill ANCSA’s economic promise. And

crucially, projects such as Red Dog, Donlin Creek,

and Kensington are in remote areas of the state

where other economic opportunity and private-sector

investment is largely absent.

78 Id.; Alaska Div. of Geological & Geophysical Surveys,

Alaska’s Mineral Industry 2006: Special Report 61 at 19.

79 Id.;: Huskey supra, 24.J. Land Resources & Envtl, L. at 438-

443.

26

C. The Ninth Circuit’s decision

threatens to impede economically

beneficial mining projects and

harm Native Corporations and

their shareholders

Large-scale mining operations on Native lands

generate substantial revenue and employment for

Native Corporations and _ their’ shareholders.

Shareholders often use their ANCSA shareholder

disbursements to support subsistence activities,

which are a central element of Alaska Native family

economies, as well as personal and _ cultural

identity.2° Thus, these mining operations are crucial

in fulfilling ANCSA’s purposes. But as the

Kensington mine illustrates, the Ninth Circuit's

decision threatens to halt these _ positive

developments.

When it held Coeur Alaska’s Section 404

permit to be invalid under the Clean Water Act, the

Ninth Circuit also vacated a permit the Corps issued

to Goldbelt, Inc. (the ANCSA corporation for the

Juneau region) for construction of a marine terminal

facility.2! (The background and purpose of the

marine terminal facility are discussed at length in

Goldbelt’s brief to the Court). Although the

Kensington mine is located on state rather than

ANCSA lands, Goldbelt’s facility was an integral part

of the Kensington project's operating plan.®2

80 Bedardi, supra, 38 Natural Resources J. at 98-99

8t J.A.517(a).

82 See generally, Brief of Goldbelt, Inc. in support of Petitioners

27

The Ninth Circuit’s decision dealt a serious

blow to Goldbelt’s mission to generate jobs and

income for its shareholders in connection with the

Kensington project.23 The effects of the Ninth

Circuit’s decision are especially severe given the

bleak economic picture in southeast Alaska caused

by the decline of the timber and fishing industries,

and stagnating government employment.*4

The Kensington project shows how the court of

appeals’ decision will obstruct environmentally-

sound resource development in Alaska. As the

amicus brief of the National Mining Association (filed

in support of the petitioner) shows, the disposal of

mining fill often requires placement in water bodies

or wetlands, since mining typically takes place in

rugged terrain where water bodies are the feasible

site for disposal.

This is particularly true in Alaska, given the

state’s extensive amount of wetlands. Alaska holds

175 million acres of wetlands, comprising about 43

percent of Alaska’s surface area — in other words,

more than the rest of the United States combined.*

Native Corporations are the largest private

83 Bnef of Goldbelt, Inc. in support of Petation for Review at 5-

6.

84 Id. at 4-5.

85 Amicus Brief of Council of Alaska Producers in support of

Petitioner at 4-5 (citing Environmental! Protection Agency et al,

Alaska Wetlands Initiative Summary Report at 2 (1994).

28

landowners in Alaska, and about 11 percent of

Alaska’s wetlands are located on ANCSA lands.*@

These wetlands are most abundant in the

northern and western regions of the state, where the

proportional Alaska Native (and ANCSA

shareholder) population is_ highest.’ ANCSA

requires that these lands be available for economic

development purposes; the Clean Water Act should

not be interpreted in a way that eviscerates this

mandate. Cf. City of Angoon v. Marsh, 749 F.2d 1413,

1418 (9th Cir. 1984) (permitting Native Corporation

to log ANCSA lands within Admiralty Island

National Monument on rationale that lands were

selected for purposes of their economic benefit).

As the Council of Alaska Producers points out,

developing large-scale mines in these regions is

virtually impossible without impacting’ these

pervasive wetlands in one way or another.®8 And as

demonstrated above, it is likely that such mines will

be located on ANCSA lands, or will otherwise benefit

Native Corporations and their shareholders who are

dispersed throughout rural Alaska — in terms of jobs,

revenue and dividends, and social programs provided

by the Corporations.89 But the Ninth Circuit’s

86 Jd. at 5.

87 Id. at 5-6; Alaska Native Policy Center, Our Choices, Our

Future: The Status of Alaska Natives 2004 at 37-39.

88 See Amicus Brief of Council of Alaska Producers at 8.

&? U.S. Gov't Accountability Office, Contract Management:

Increased Use of Alaska Native Corporations’ Special 8(a)

Provisions Calls for Tatlored Oversight 82-83 (describing direct

and indirect benefits ANCSA corporations provide to Native

shareholders).

29

flawed reasoning leaves the viability of future

resource development on ANCSA lands in doubt.

The Clean Water Act should continue to play

its vital role in ensuring that natural resources are

developed in an_- environmental)y-responsible

manner. But in this case, the Ninth Circuit’s holding

— that the Clean Water Act prohibits the Corps of

Engineers from issuing a Section 404 permit for the

discharge of fill material whenever the discharge

implicates an effluent restriction contained in

Section 402 or its implementing regulations — runs

counter to the plain language of the Act, and

overturns the EPA’s and Corps’ carefully-considered

permitting program for the regulation of mine

tailings.

And contrary to this Court’s long-established

principle of administrative law, the Ninth Circuit's

decision has set a dangerous precedent against the

extraordinary deference that must be afforded to an

agency's interpretation of its own regulations. See

Bowles v. Seminole Rock & Sand Co., 325 U.S. 410,

414 (1945). Given the Ninth Circuit’s failure to

accord such deference in this case, the doors are wide

open for the federal courts to strike down the

permitting agencies’ regulations governing other

resource development projects — even where such a

plan has the least impact on the environment of all

available alternatives (as in this case).

30

CONCLUSION

Mining is critical to Alaska’s economic future,

and especially to the future of Alaska’s economically

disadvantaged Native communities. But the Ninth

Circuit’s erroneous interpretation of the Clean Water

Act’s permitting requirements threatens to halt

future mining projects. This Court should reverse

the Ninth Circuit’s flawed decision, and restore to

the federal permitting agencies the authority to

maximize the responsible development of Alaska’s

mineral resources — and the concomitant benefits

that flow to Native Corporations and_ their

shareholders in Native communities throughout

Alaska.

Respectfully submitted,

MICHAEL JUNGREIS,

Counsel Of Record

JIM WILKSON

HARTIG, RHODES, HOGE &

LEKISCH, P.C.

717 K Street

Anchorage, Alaska 99501

Telephone: (907) 276-1592

September 24, 2008