|J.P. Tangen, editor
D(2), part 2 : a report to the people of Alaska on the land promises in ANILCA : 20 years later
2000, Alaska Miners Association, Anchorage, Alaska ; price $9.95 Excellent!
Full Table of Contents
ANILCA PROMISES BROKEN:
THE DEMISE OF THE KANTISHNA MINING DISTRICT
by Lawrence V. Albert, Attorney at Law
A. Background– "d2" Proposed Addition for Kantishna.
The Kantishna Hills was an active mining district prior to enactment of ANILCA. In 1905, Territorial Judge James Wickersham made an unsuccessful ascent of Mt. McKinley. He descended the north side of the Alaska Range and arrived in the Kantishna Hills. He found gold there and triggered a minor gold rush through 1905-06. Hundreds of mining claims were located and relocated in the Kantishna Hills over the last century. The Kantishna Mining District was formed under the General Mining Law of 1872 prior to enactment of organic legislation for the National Park Service in 1916, as well as enabling legislation for Mt. McKinley National Park in 1917.
Section 17(d)(2) of the Alaska Native Claims Settlement Act ("ANSCA") directed the Secretary of Interior to identify suitable "national interest lands" in Alaska. In response, the Interior Department made various "d2" proposals, including areas surrounding Mt. McKinley National Park. In 1975, the National Park Service ("NPS") commissioned Russell Chadwick, an economic geologist from Spokane Washington, to prepare a gross mineral appraisal of mining claims located within the park as well as the Kantishna Hills. Congressman Morris Udall, a principal author of ANILCA, visited the Kantishna Hills in 1977 and observed mining operations on the Gold King claims owned by Eric and Paul Wieler.
ANCSA authorized interim public land withdrawals pending subsequent legislation on national interest lands. In December 1978, President Jimmy Carter promulgated the "Denali National Monument" as an executive land withdrawal because ANCSA's temporary withdrawal authority lapsed. The Denali National Monument included the Kantishna Mining District. Beginning in 1979, the NPS acquired surface management authority over Kantishna mining operations.
In the spring of 1979, then Alaska Representative Steve Cowper wrote an opinion column in the Fairbanks Daily News Miner on pending "d2" legislation. Cowper criticized proposed additions to national parks in Alaska. Cowper anticipated that in-holders created by new parks would have difficulties accessing their property and realizing their property rights. His words were to the effect that "you do not want the National Park Service as your neighbor." Cowper foresaw the outcome for Kantishna mining claimants if Mt McKinley National Park were expanded.
B. ANILCA Treatment of Kantishna & Mining Operations Through 1985.
With passage of ANILCA, Congress incorporated the Kantishna Hills into an expanded national park, and designated the new park the Denali National Park and Preserve. As a consequence, Kantishna mining claims became subject to NPS surface management authority through the Mining in the Parks Act ("MPA"). ANILCA prohibited further mineral entry in the new park. However, Kantishna mining claimants were protected with "valid existing rights."
The average price of gold in December 1980 was $623 per troy ounce. During the ensuing five years, the NPS routinely permitted Kantishna mining operations. A "Plan of Operations" was submitted on a printed NPS form accompanied by an NPS form "Environmental Report." In 1983, twenty one mining operations were permitted on eight different streams in the Kantishna Hills. Larger operations were processing placer material at rates of 100 cubic yards per hour, working 200,000 cubic yards per year or more, and recovering in excess of 2,000 ounces of placer gold. Virtually all of the unpatented mining claims had no validity determination and the Park Service never challenged validity or initiated mineral examination of claims subject of plans of operation.
ANILCA directed the Secretary of Interior and the Alaska Land Use Council to study the mineral potential of the Kantishna and Dunkle Hills, estimate the costs for acquiring mineral properties, and examine the environmental consequences of further mineral development. The Alaska Land Use Council and U.S. Bureau of Mines contracted with two consulting firms to respond to ANILCA's study mandate. The result was the report "Mining Properties Acquisition Costs: Kantishna Hills and Dunkle Mine Study Area," authored by DOWL Engineers, and Plangraphics, Inc. ("DOWL Report"). According to the consultants, the cost of acquiring all the placer and lode claims in the Kantishna Hills and Dunkle Mine areas was 157 million in 1983 dollars. This estimate concerned 233 mining claims, and only 1% of the value was allocable to the Dunkle Mine area. The DOWL Report emphasized that its valuation only concerned existing mining claims and not the potential value of other mineral lands within the Kantishna study area.
C. 1985 Court Injunction, Cumulative Effects EIS, and Suspension of Mining Operations.
In 1985, environmental groups sued the NPS for improperly permitting mining operations and failing to conduct cumulative environmental assessments under the National Environmental Policy Act ("NEPA"). District Court Judge James Von DerHeydt ruled for the plaintiffs and entered an injunction in July 1985. The court ordered a cessation of all permitted mining operations and required the NPS to engage in cumulative environmental impact assessment of mining. In December 1985, the injunction was amended to include mining operations in Denali National Park. The amended injunction authorized individual mining claimants to apply for relief upon a showing that a proposed operation would not pose cumulative adverse effects on park environment.
Upon being informed of the injunction, Kantishna miners typically believed this was a temporary setback. The miners thought they would be allowed to operate again when NPS completed its environmental assessment. In October 1985, the Park Service held out to the mining claimants that plans of operation could still be submitted and approved if no adverse effects were demonstrated. Several plans were submitted for the 1986 mining season in the Kantishna Hills. However, the Park Service consistently rejected the submittals because these did not provide sufficient information for regulatory and environmental review. The miners were undeterred and continued to submit supplemental plans and analyses through the spring of 1986 far in excess of the documentation required prior to the court injunction. NPS nonetheless denied all the revised plan submittals.
The 1985 court injunction expanded to three national parks in Alaska-- Denali, Wrangell-St Elias, and Yukon Charley. The Park Service decided that significant staff expansion was necessary to undertake the cumulative environmental assessments. A variety of professional personnel were hired to review plans of operation, initiate mineral examinations, conduct resource surveys, and topographically map all the major claim groups at large scale. During the ensuing five year period, NPS spent untold millions of taxpayer dollars scrutinizing the Kantishna Mining District. Finally, in August 1990, the NPS issued its Final Environmental Impact Statement: Cumulative Impacts of Mining– Denali National Park and Preserve, Alaska. Later in the year, NPS certified its NEPA record was complete and therefore moved to lift the court injunction. On January 2, 1991, Judge Von derHeydt lifted his court injunction. In theory, the Park Service once again had authority to approve mining operations in the Kantishna Hills.
Between 1986-1990, the Kantishna Mining District was totally shut down. Not one plan of operation was approved in the Kantishna Hills, and commercial mining ceased to exist. Moreover, the Park Service refused to determine whether plan submittals were complete within the regulatory requirements. Kantishna miners were uniformly told to come again another day with more paperwork.
The single exception to this outcome was Sam Koppenberg. Koppenburg (d/b/a K.L.K., Inc.) held 5 ½ association placer claims on middle Caribou Creek. Koppenberg acquired a reputation as an efficient and innovative placer miner. He developed a mining method that incorporated a mobile wash plant, rerouting of the stream channel, discharge of tailings into processed mining cuts, and design of wastewater retention ponds to eliminate stream turbidity.
Koppenberg submitted the only plan of operations which NPS determined to be "administratively complete" in October 1986. In April1987, the Park Service told Koppenberg it could not process his plan and determine approval due to the uncertainty of cumulative environmental effects. After completion and approval of the FEIS, in May 1991, the NPS finally denied Koppenberg's plan. The NPS reasoned his operation would generate surface disturbance, this would result in habitat destruction for various species, and therefore, the "Resource Protection Goals" established for cumulative effects assessment would be violated.
D. NPS Regulatory Practices.
Since 1986, Kantishna miners perceived NPS was being onerous in its review of mining plans. The miners moreover suspected NPS was not dealing in good faith and had a hidden agenda to frustrate their rights. In the spring of 1987, Toni Hinderman met with Floyd Sharrock, Chief of the NPS Mining and Minerals Division in Anchorage. Sharrock told Hinderman that NPS had a "sub rosa agreement" with the environmentalists to prohibit mining in Denali National Park. Sharrock denied this communication in a November 1993 oversight hearing on implementation of ANILCA conducted by Senator Frank Murkowski.
Through litigation discovery conducted in the last two years, the miners' suspicions appear well substantiated. Illustrated here are the summary views of two former NPS employees. Both persons, Larry Brown and Tom Ford, were substantially involved in reviewing mining plans for the Kantishna Hills between 1986 and 1992, when both left government service. Brown is a geologist, had prior experience in validity examination, as well as practical experience operating a mine. After six months on the job with NPS in 1986, Brown formed the opinion that no mining operations would be permitted on Caribou Creek or anywhere else in the Kantishna Hills. Brown also believed that supervisory NPS personnel provided guidance that plan reviews should be as complicated and prolonged as much as possible. Brown was incensed with NPS' deception of Sam Koppenberg. Brown thought NPS had reached a foregone conclusion that Koppenberg's plan for middle Caribou Creek would never be approved, and yet Koppenberg was encouraged to spend additional money for naught.
Tom Ford's regulatory experience was remarkable. Ford was a NPS environmental specialist recruited from the Death Valley National Monument in California. When he came to NPS in Alaska, he already six years' experience with MPA permitting of mining operations in Death Valley. His experience was that some 50 plans of operation were all approved, typically with conditions or stipulations. Ford could not recall a single instance in which a mining plan was denied on the merits at Death Valley National Monument.
After six years with NPS in Alaska, Ford could not identify a single plan of operations for the Kantishna Hills that was ever approved. Moreover, Ford indicated that none of the several plans submitted was ever adjudicated on the merits with the single exception of Koppenberg's plan. Regarding Koppenberg's plan, Ford was responsible for drafting the environmental assessment and findings that supported plan denial. His intention, shared by NPS staff, was that denial of Koppenberg's plan would mean denial of all future mining operations in Denali.
After Brown and Ford's departure in 1992, NPS continued its dilatory practices. From the period of the 1985 injunction until condemnation actions were filed in 1998, not one plan of operation for commercial mining operations was approved for Kantishna. Additionally, NPS refused to process plans for commercial operations on grounds these were incomplete and required more information. NPS did approve a plan for George Bailey's Discovery claims on Eureka Creek. Bailey characterized his plan as "recreational mining" wherein he would process 12 cubic yards per day, maximum. His plan involved only 0.75 acre surface disturbance on ground that had previously worked near the confluence of Eureka and Moose Creeks. Bailey stated his plan was not economic and distinguished it from commercial operations existing in Kantishna prior to the injunction.
The Park Service also approved a plan in 1995 for appraisal sampling on Lower Caribou Creek, Friday Creek and Glacier Creek claims. Steve Hicks submitted a plan on behalf of Arnold Howard and co-owners for their Lower Caribou Howtay Assn. claims, and on behalf of Milan Martinek for his Alder and Little Audrey claims. Hicks' request to use mechanized equipment on undisturbed ground was denied. NPS instead approved portable equipment known as a "Winky drill" and "Digger 50" if these items were helicoptered in. Since NPS did not permit sampling operations with mechanized equipment on previously undisturbed ground, any commercial mining operations on the claims would have been denied but for NPS' refusal to process incomplete plan submittals.
Martinek's claims are currently in condemnation. Despite the government's protests, the court authorized Martinek to use mechanized equipment in bulk sampling his placer deposits. Martinek deployed a crew of four persons on his former claims for ten weeks during the 2000 field season. Approximately 80 sample sites (five cubic yards or greater) were tested with a 20 ton Mitsubishi excavator and a custom built portable wash plant (modeled after a Goldfield "Alaskan 10"). When nuggets started to appear at Martinek's Friday Creek sampling, NPS got nervous and decided to undertake its own "parallel sampling program." NPS contracted with Don Stevens, although he had only four weeks to do his work. With NPS' tactical decision to engage in mechanized sampling of Kantishna claims, its prior objections to surface disturbance and valuation enhancement are evidently abandoned.
E. The Mining Claimants' Impetus for Property Acquisition.
After a few years of the court injunction, Kantishna miners worried about their prospects. Complaints to Alaska's congressional delegation occurred regularly. In August 1988, Senator Ted Stevens arranged for congressional committee staff to visit Kantishna and assess the situation. Kantishna miners attended meetings at the North Face Lodge and Kantishna Roadhouse. Senator Stevens proposed funding for property acquisition if mining operations were not going to be approved. Sam Koppenberg proudly wore a polyester jacket to the meetings. On the back of his jacket, Koppenberg had silkscreened in large Gothic script "Thou Shalt Not Steal," followed with "The National Park Service Does Not Like Competition" in plain text. Koppenberg's jacket aptly expressed the frustration of Kantishna miners at the time.
Congress declined to approve Senator Stevens' funding request for Kantishna claims acquisition. Instead, the Interior appropriations bill for FY 1989 authorized another study on acquisition costs even though the 1984 DOWL Report had already done this pursuant to ANILCA. According to the legislation, NPS was to prepare a "Resource Management Plan" regarding acquisition costs and priorities for the Kantishna mining claims. Included in the legislation was guidance that "Resource protection by frustration is not an acceptable strategy. For example, if mining is clearly not permissible in certain areas or circumstances, then a speedy rejection is preferable to a protracted maze of administrative hurdles whose successful completion holds no likely benefit to the applicant." The Park Service's regulatory actions over the next several years ignored this congressional command.
The NPS completed its Kantishna Resource Management Plan ("RMP") in July 1990. Contemporaneous with RMP completion, NPS issued its FEIS in August 1990. In both documents NPS expressed an official policy that acquisition of all valid mining claims was the preferred management alternative. NPS also stated that "approvable plans of operation" would be permitted pending acquisition. The RMP estimated total acquisition cost for 244 mining claims at $17,240,000. The EIS separately contained a "gross cost estimate" that valued all Kantishna claims at 16 to 21 million dollars (Nov. 1, 1988 valuation). In the Interior appropriations bill for FY 1991, Senator Stevens obtained a $6,000,000 appropriation for Kantishna mining claims acquisition.
F. The Failure of NPS' Mining Claim Acquisition Program.
The Mining in the Parks Act of 1976, as with other public lands legislation of that era, authorized property acquisition. ANILCA further authorized "hardship acquisition" of in-holdings within conservation system units. But Congress never appropriated any funds. With the support of Alaska's congressional delegation, NPS received approximately $12,000,000 in appropriations for acquisition of Kantishna mining claims. The appropriations occurred in fiscal years 1991 through 1993. Despite this support, NPS' acquisition program became a failure for several reasons:
First, acquisition of mining claims required a validity determination and an approved Mineral Report. When NPS embarked on its acquisition program in the summer of 1990, almost all Kantishna unpatented mining claims had yet to be validated. The only claims to undergo validity examination were those subject of patent application. It took the Park Service years to do mineral examination on unpatented claim groups and finally arrive at validity determinations. Mineral examination on upper Caribou Creek claims started as early as 1987 and was not completed until ten years later.
Second, the Park Service had no experience in mineral property valuation. In 1989, the chief of NPS lands acquisition in Anchorage wrote to one Kantishna mining claimant stating the NPS lacked experience in appraisal of mining claims and "the exact procedures and mechanisms for the purchases remains to be established." In response to a FOIA inquiry circa 1993, the NPS could not establish a single instance of voluntary acquisition of an unpatented mining claim even though the Mining in the Parks Act was enacted seventeen years earlier.
Third, the Park Service has a notorious history during at least half of the 20th Century for "low ball" property valuation. More than one report of the General Accounting Office or DOI office of Inspector General has criticized the NPS for its real property acquisition and valuation practices. In a reported court decision involving the Voyageurs National Park in Minnesota, a NPS lands acquisition officer is quoted as saying "my job is to acquire this land for the National Park Service. I hope to acquire it for about 30 cents on the dollar." Curiously, this NPS employee failed to appear at trial and testify on behalf of the United States.
Fourth, the NPS refused to apply the income approach to valuation of Kantishna mining claims. Its first contract appraiser for valuation of Kantishna mining claims was Luther Clemmer. Clemmer was an experienced appraiser of mineral property for the federal government. Clemmer drafted appraisals on the KLK and Gold King claims. Clemmer went through four draft appraisals on the Gold King claims with his initial opinion of value at 2.4 million dollars and his last draft at approximately $737,000. NPS would only consider income valuation of the owner's royalty interest although the Gold King claims were not leased on the date of valuation. Clemmer insisted the entire mineral estate should be appraised according to the income approach, and this is the preferred approach to valuation of mineral property. According to NPS, Clemmer's drafts did not comply with the government's Uniform Appraisal Standards for Federal Land Acquisitions. NPS never approved Clemmer's appraisals.
Fifth, NPS' approved appraisals for Kantishna unpatented claims are so ridiculously low that none of miners (with one exception) accepted its valuations. After Clemmer's work became unacceptable to the Park Service, it hired a second contract appraiser, Onstream Resource Managers, Inc ("ORM"). ORM has consistently applied the comparable sales approach to several Kantishna claim groups from 1993 to the present. Its valuations started out at approximately $1,000 an acre for the KLK and Gold King claims, and have gone down ever since then.
At trial on just compensation for Kantishna Mining Company's claims (upper Caribou Creek), ORM valued 540 acres of association placer claims at approximately $100,000 ($185/acre). By comparison, the DOWL Report valued the same claims at over $18,000,000. ORM separately valued 11 placer claims held by Mick Martinek for $91,000. In 1984, Martinek recovered a 90 troy ounce nugget from his Glacier Creek claims that was appraised in 1987 for $150,000– more than ORM's valuation of 190 acres of placer ground.
The only mining claimant who voluntarily sold to the NPS is Louise Gallop. Gallop is a widow who owned the Discovery Claim on Friday Creek. Gallop accepted a valuation of $22,000 for her single placer claim, which included $12,000 for a cabin constructed on the claim. In 1981, Leonard Kragness and John Hayhurst mined 2,700 ounces of gold from Gallop's claim. Kragness believed significant placer deposits remained after the 1981 mining season, but Gallop didn't want her remaining ground disturbed. She had constructed a "nature walk" on her ground which John Hayhurst had offered $30,000 to mine. She declined his offer and preferred to sell her "nature walk" mining claim to the Park Service for $22,000.
By the summer of 1994, NPS had only been able to spend about 3 million of the 12 million dollars appropriated for Kantishna claims acquisition. All of NPS' purchases went to patented claims, notably the Kantishna Mines, Ltd. group of claims on Quigley Ridge and vicinity. Even with those claims, NPS' appraisals valued the surface only and disregarded the mineral interest. The best that a willing seller of patented mining claims could realize for mineral value was a tax deduction under Section 170(h) of the Internal Revenue Code. In one case, IRS proved to be an additional adversary by contesting the deductible value of mining claims donated in the Wrangell-St. Elias National Park.
NPS' inability to negotiate acquisition of unpatented Kantishna claims resulted in rescission of over $6,000,000 in appropriated funds in August 1994. During that fall, the Alaska Miners Association convened a working group to draft legislation for Kantishna. In the November 1994 election, the Republicans regained a majority in Congress and Senator Frank Murkowski became Chairman of the Senate Energy & Natural Resources Committee. Senator Murkowski introduced a comprehensive bill for remedying acquisition procedures and NPS valuation practices on Kantishna mining claims. Sensing trouble, NPS responded with an internal working group detailed to its Alaska Regional Office.
NPS' internal review resulted in the "Denali-Kantishna Task Group Report." Issued in May 1995, the report acknowledged difficulties in NPS' acquisition program. Among the difficulties acknowledged was differences in opinion between NPS appraisers and the mining claimants on valuation methodologies. The report recommended existing acquisition procedures be retained and discouraged legislative reform. Viewed critically, the Task Group Report was whitewash that didn't solve NPS' acquisition problems. By comparison, a report draft was more candid: "After ten years of limbo, the National Park Service should issue a clear policy position concerning whether mining will be allowed in Kantishna. . . . If the answer is that mining will not be allowed, then immediate acquisition should be initiated." A more cynical assessment is that NPS' "Kantishna Task Group" functioned to scuttle Senator Murkowski's proposed legislation. The Task Group achieved its objective.
G. 1997 Legislation Authorizing Just Compensation--the Shift to the Courthouse.
By 1997, a stalemate had been reached between NPS and Kantishna mining claimants on voluntary acquisitions. Individual claimants were evaluating litigation options for achieving just compensation.
One approach is a declaration of taking ("DT"). When a condemnation action is accompanied by a DT, title is divested immediately to the United States. In exchange for immediate acquisition of title, the United States is required to deposit into court its estimate of just compensation. The advantage of this approach is the property owner may withdraw the government's estimate of just compensation and use this for discretionary purposes, e.g. litigation expense.
During the summer of 1997, Kantishna counsel worked with
Senator Stevens' office in drafting special legislation that would incorporate
the declaration of taking procedure.
The outcome was Section 120 of Pub. Law. No. 105-83, the Interior Appropriations Bill for FY 1998. This legislation allowed Kantishna mining claimants to consent to a taking within 90 days of enactment (November 12, 1997). If the claimant expressed his consent, then title to his claims vested in the United States 90 days after enactment (February 12, 1998). Thereafter, either party has the right to bring an action sounding in just compensation. Provisions of the Declaration of Taking Act were incorporated by reference into the Section 120 legislation. If a Kantishna miner opted not to participate under the Section 120 legislation, his existing rights were preserved.
Almost all of the Kantishna miners, both patented and unpatented claimants, elected to participate in the Section 120 legislation. At last count, five Section 120 actions have been filed in the U. S. District Court for the District of Alaska. A sixth mining claimant, Milan Martinek, arranged for a condemnation under the Declaration of Taking Act due to prior litigation filed in the Court of Federal Claims. Approximately 50 mining claims are involved in the six actions. In 1995, Sam Koppenberg settled an inverse condemnation lawsuit filed in 1992 after his plan of operation was denied. Koppenberg received $662,500 in settlement of his takings claim.
A survey of the pending litigation is beyond the scope of this article. Suffice it to say that Kantishna miners' just compensation claims will be resolved in a court of law rather than with the National Park Service. The lead case is Kantishna Mining Co. v. Babbitt, No. F98-0006 CV (JKS) (D.Alaska) ("KMC"). A stipulated date of taking of January 2, 1991, was established in that case prior to trial on taking issues. On that date, the 1985 court injunction was lifted. Trial on just compensation concluded in June 17, 2000, and the parties await a decision from Chief Judge James K. Singleton, Jr.
KMC concerns 14 ½ upper Caribou Creek claims held by John Hayhurst and Leonard Kragness. The miners offered proof at trial their claims were worth $5,990,000 in minerals value, and $2,000,000 in surface value due to prospective patenting. The United States offered proof the claims were worth approximately $100,000 in mineral value and zero in surface value. KMC's damage award will be based on the fair market value on the date of taking. In addition, KMC will be entitled to accrued interest on the damage award from January 2, 1991, to the date of judgment. With compounding of accrued interest on a principal sum, KMC's ultimate damage award could be 2-3 times greater than the property taken.
Many of the issues presented in KMC will be revisited in subsequent condemnation litigation. Both counsel and the judge in KMC appreciate the importance of that case, and that it will be precedental to the subsequent cases. The trial went on for 17 days. Between the parties, there were ten lawyers assigned to the case. John Hayhurst and Leonard Kragness, along with their counsel, Patton Boggs LLP, should be commended for their tremendous effort in advancing the cause of just compensation due Kantishna mining claimants.
In retrospect, ANILCA authorized condemnation of the Kantishna Mining District. Although Congress did not specify this objective, the outcome became inevitable. Commercial mining is an anathema to the National Park Service and its mission function. Once the Kantishna Hills were incorporated within a national park, rigorous application of the Mining in the Parks Act precluded any profitable operations with mechanized equipment. Though the scientific basis of NPS' cumulative effects assessment can be criticized, the national environmental community would never tolerate mining within an Alaska National Park.
After the injunction was lifted in 1991, NPS' decisional standard in review of Kantishna mining plans turned on surface disturbance: If operations generated more than an acre of surface disturbance, then habitat protection goals would be violated, and mining must be disallowed. Ten years after the court injunction, NPS promulgated a policy statement indicating only "minimal mining activity" would be allowed in Denali Park. In NPS' lexicon, "minimal mining activity" is a euphemism for no commercial mining.
The 1984 DOWL Report estimated the costs of mineral valuation of Kantishna claims at 16 to 20 million dollars. The consultants believed such expenditure was not warranted because the public interest is better served by allowing continued mining operations under special regulations. Whatever the wisdom of this policy recommendation, the Park Service probably spent 16 to 20 million dollars since the 1985 court injunction administering the demise of the Kantishna Mining District. To date, the only just compensation paid for Kantishna minerals is approximately $10,000 in acquisition of Louise Gallop's Discovery Claim, and $662,500 in settlement of Sam Koppenberg's taking case.
ANILCA's promise to protect the "valid existing rights" of Kantishna mining claimants has been broken and plainly repudiated by the National Park Service. As surface lands manager, NPS cannot be faulted for regulating mining activity pursuant to its statutory obligations. However, NPS should be castigated for refusing to timely adjudicate the rights of Kantishna miners and proceeding with just compensation. Though the agency was motivated to avoid takings, the public interest is not served by prolonged regulation that costs taxpayers millions of dollars before a dime in just compensation is rendered.
Whether total compensation paid for condemnation of Kantishna minerals will match public sector "transaction costs" remains to be seen. One would hope so. In this regard, taxpayers and property owners alike should be vigilant of new conservation legislation authorizing billions of dollars for more land acquisition: Are the acquisitions in the public interest? If so, what is the most efficient means for conferring just compensation?