concurring in part and dissenting in part.
I agree with the majority that the Alaska Statehood Act requires the state’s land selections to have some nexus to existing or prospective communities. That interpretation resolves an ambiguity in the Act in a manner that is fully supported by the legislative history.
I cannot agree with the majority, however, when it upholds the Forest Service requirement that the selections generally be within 25 miles of existing or already planned communities. The Alaska Statehood Act permits the state to select “from lands within national forests in Alaska which are vacant and unappropriated.” It requires that the land either be “adjacent to established communities” or, in the alternative, be “suitable for prospective community centers and recreational areas.” Pub.L. No. 85-508, 72 Stat. 339, 48 U.S. note prec. § 21, Sec. 6(a). The Forest Service’s wholly arbitrary 25-mile requirement is not even hinted at in the statute or its history. In insisting that the communities already be planned or in existence, the Service ignores the language of the statute which requires only that the land be “suitable for prospective” community development.
The only justification which the Forest Service offers for such an arbitrary standard is that the 25-mile restriction is reasonable as a distance for non-overnight recreation. The rule might make sense for suburban New Jersey. In Alaska, where residents routinely travel by plane and boat due to the scarcity of roads, such a limitation is impractical. When Congress authorized the Secretary of Agriculture to approve Alaska’s land selections, it did not authorize disapproval on an arbitrary and irrational basis. Accordingly, in my view, the majority does not hold the Forest Service to an appropriate standard.
I therefore respectfully dissent.