Appendix — Donnelly v. Eklutna, Inc.

OU "Vv ve" Supreme Court, Us.

FILED

SEP 24 1988

JOSEPH F. SPANIOL, JR.

No. 88-___ CLERK

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1988 ‘

THERESE U. DONNELLY, Personal Representative of

the Estate of Joseph F. Donnelly, Deceased,

Petitioner,

v.

EKLUTNA, INC., UNITED STATES OF AMERICA,

SECRETARY OF THRE INTERIOR and

DIRECTOR, BUREAU OF LAND MANAGEMENT,

and JAMES W. LEE,

Respondents.

APPENDIX TO THE PETITION FOR A WRIT OF

CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

STEVEN P. OLIVER

720 M Street, Suite 201

Anchorage, Alaska 99501

(907) 276-6106

Counsel for Petitioner

EAR EE NEON AE RENE INARI, LOO CROAT A NN EOE DATEL EDO REEL LITTER ES

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

Appendix A

Appendix B

Appendix C

Appendix D

Appendix E

Appendix F

Appendix G

TABLE OF CONTENTS

—Order and Amended Opinion of

United States Court of Appeals

for the Ninth Circuit, Case No.

86-4428, June 27, 1988 .............

— Memorandum of Decision, United

States v. Donnelly, A75-27 Civil,

United States District Court for

the District of Alaska, November

DE cishatiniaaich st Lcicciiadassedaha danse

— Findings of Fact and Conclusions

of Law, United States v. Don-

nelly, A75-27 Civil, Lee v. United

States, A79-366 Civil, United

States District Court for the Dis-

trict of Alaska, November 13,

SD sak esac Ra hartiicitaasccics

— Memorandum and Order, United

States v. Donnelly, A75-27 Civil,

United States District Court for

the District of Alaska, December

GS ae itceds bel tinciicininiscdebwtises

—Findings, United States v. Don-

nelly, A75-27 Civil, United States

District Court for the District of

Alaska, February 5, 1981 .........

—Notice, Case No. Anchorage

043097, May 12, 1961, Bureau of

Land Management .....................

—Letter to Joseph F. Donnelly,

June 20, 1963, Case No. An-

chorage 043097, Bureau of Land

MOINS oiviccceniscinessnnsctznpasces

Page

la

18a

32a

50a

, 58a

87a

Appendix H

Appendix I

Appendix J

Appendix K

Appendix L

Appendix M

Appendix N

ii

—Letter to Joseph F. Donnelly,

June 11, 1964, Case No. Anch.

043097, Bureau of Land

MERON so citcinisncccsosaisosscocsens

—Judgment, United States Court

of Appeals for the Ninth Circuit,

Case No. 86-4428, June 27,

TUE senttadiccskatadeet a ceshesinasdteis iene

—Order denying rehearing, Don-

nelly v. United States, No. 86-

4428, United States Court of

Appeals for the Ninth Circuit,

FE Te RiatitbiicAisdvdsnnteseses

—Notice of Filing of Plat of Sur-

vey, March 15, 1961, 26 Federal

Register 2486 (1961) .............004

—Notice of Filing of Plat of Sur-

vey, Amdt No. 1, April 9, 1962,

27 Federal Register 3701

CR ier biediattipesioncvasessecenss.

— Determination Under Section 24

of the Federal Power Act, No.

DA-59-Alaska, November 4,

1952, Federal Power

SE

—Letter to Secretary of Interior

Fred A. Seaton, February 8,

9la

94a

96a

98a

103a

ili

Appendix O —Letter to Ralph A. Eklund (on

behalf of signatories of February

8, 1959 letter to Secretary of In-

terior), March 12, 1959, Roger

Ernst, Assistant Secretary of the

eS A ee 113a

Appendix P I cuambane 1l5a

Federal Power Act of 1920, §24;

) La ae 115a

Quiet Title Act of 1972, as

amended; 28 U.S.C. §2409a(a) -

SE AMNIER fa Oniadstitbbeiceesnsisiicasssadohsndesaas 116a

IE IIE eadansksidcneitcrmninseconsins 118a

Ie ING SEE ciahinanscccksasasanensiis 118a

re DR Rs. BIO, vatiensenicsinssnnnsscocere 118a

Alaska Native Claims Settlement

Am, Gis, &: 48 U«.S.C.

§1601(a), a 120a

Alaska Native Claims Settlement

Act, §3(e); 48 U.S.C. §1602(e) .. 120a

Alaska Native Claims Settlement

Act §11(a); 43 U.S.C. §1610(a) . 121la

Alaska Native Claims Settlement

Act §14; 43 U.S.C. §1618 ......... 12la

Alaska Native Claims Settlement

PEE hisses setsicakeheeddnase 129a

Alaska Native Claims Settlement

Act, §22(b), (c), Act of Dec. 2,

1980, 94 Stat. 2496, §1410; 43

U.S.C. §1621(b), (C), (§) sssssssccoses 130a

Alaska Native Claims Settlement

)'. 2 SSS puaddhinwedin 132a

WD Is I cediiicat scenscictasuctane 132a

AS (Alaska Statutes) 9.10.230 .. 132a

iv

Appendix Q — II iisitstaiainncaesinsesizinosens 134a

43 CFR 2650.5-4 (1977) ............ 134a

43 CFR 2650.3-1(a) (1977) ........ 134a

43 CFR 2650.4-1 (1977) ............ 134a

43 CFR §2650.7 (1977) ............. 135a

43 CFR §2651.5 (1977) ............. 137a

la

Appendix A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

THERESE U. DonNELLY, Personal

Representative of the Estate of

JosePpH F. DONNELLY, deceased,

Plaintiff-Appellant, No. 86-4428

Vv. D.C. No.

UNITED STATES OF AMERICA: A75-27-F

SECRETARY OF THE INTERIOR;

Director, BUREAU OF LAND

MANAGEMENT and EKLUTNA, INC.,

Defendants-A ppellees.

James W. LEE

Plaintiff-Appellant,

No. 87-3834

‘i D.C. No.

UNITED STATES OF AMERICA; CV-79-336

SECRETARY OF THE INTERIOR; ;

DIRECTOR, BUREAU OF LAND ORDER AND

MANAGEMENT; EKLUTNA, INC.; AMENDED

“age OPINION

Cook INLET REGION, INC.,

Defendants-Appellees.

Appeal from the United States District Court

for the District of Alaska

James M. Fitzgerald, Chief District Judge, Presiding

Argued and Submitted

February 4, 1988—Seattle, Washington

Filed March 10, 1988

Amended June 27, 1988

2a

Before: Alfred T. Goodwin* and Betty B. Fletcher, Circuit

Judges, and Earl H. Carroll,** District Judge.

Opinion by Judge Fletcher

SUMMARY

Real Property

Appeal from judgment in action involving title to land. The

court affirmed, holding that quiet title claims against the U.S.

are subject to a 12-year statute of limitations, which appel-

lants allowed to expire.

The Federal Power Commission restored land to home-

stead entry. Appellants the Donnellys’ homestead applica-

tions to settle on some of this land were rejected in 1957 and

again in 1959. From 1957 through 1968, the Donnellys tried

to gain title by various means. However, they departed from

the formal appeal procedure of the BLM as early as 1959. In

1965 they received a homestead patent to 67.5 acres, leaving

92.5 acres in dispute. The parties disagree as to whether the

patent to 67.5 acres represented a compromise and settle-

ment. In 1970, the Donnellys received a notice of trespass

from the government and were ordered to leave the land. The

following year Congress passed the Alaska Native Claims Set-

tlement Act (ANCSA), which extinguished aboriginal land

claims of Alaskan natives in exchange for the right of native

corporations to select acreages of public lands. Appellee

Eklutna, Inc., selected the lands claimed by the Donnellys.

*Alfred T. Goodwin, Chief Judge, U.S. Court of Appeals for the Ninth

Circuit, was drawn to replace Judge Anderson, who was on the original

panel but died before this order was filed.

**The Honorable Earl H. Carroll, United States District Judge for the

District of Anzona, sitting by designation.

3a

The government then filed a trespass action against the Don-

nellys, who counterclaimed against the United States under

the Quiet Title Act. The government patented the land to the

native corporations, and its trespass action was dismissed,

leaving only the Donnellys’ counterclaims and third party

claims against Eklutna. The district court dismissed the Don-

nellys’ counterclaims against the U.S. and their third party

claim of title against Eklutna. Later, it granted summary judg-

ment dismissing the Donnellys’ second cause of action

against Eklutna, based on section | 4(c\(1) of ANCSA.

{1] To the extent that 28 U.S.C. § 1331, 43 U.S.C. § 161 and

43 U.S.C. § 1601 go to the Donnellys’ claim to title, they do

not function independently of the QTA in the Donnellys’

action, do not by themselves waive sovereign immunity, and

therefore do not confer jurisdiction. [2] Assertion of the APA

as an independent means for pressing title disputes against

the government has been rejected. [3] However, it is not nec-

essarily the case that the APA is unavailable as a jurisdictional

ground, as opposed to a remedy. [4] Quiet title claims against

the United States are subject to a 12-year statute of limita-

tions. [5] The Donnellys did not follow the administrative

review procedure. [6] Thus, it cannot be said that the statute

was tolled by their pursuit of administrative process. [7] In

order to challenge the validity of Eklutna’s patents, the Don-

nellys must establish their own entitlement to the lands.

Because the U.S. is an indispensable party to this action and

the district court lacked jurisdiction as to the claims against

the U.S., the claims against Eklutna required dismissal. [8]

Section 14(c)(1) cannot operate as a sort of amnesty provision

extending rights to individuals who are merely trespassers,

failed homesteaders, or land users without any vested rights

prior to December |, 1971. [9] Appellants argue that they are

not trespassers, by virtue of their vested equitable title to the

land. Their section 14(c)1) claims are based on their title

claim, which cannot be resolved in any action to which the

U.S. is not a party.

4a

COUNSEL

Steven P. Oliver, Anchorage, Alaska, for the plain-

tiffs-appellants.

Vicki L. Plaut, Land & Natural Resources Division, Depart-

ment of Justice, Washington, D.C.; David P. Wolf, Copeland,

Landye, Bennett and Wolf, Anchorage, Alaska, for the defen-

dants-appellees.

ORDER

The panel amends the opinion filed March 10, 1988 to add

the following footnote after the word “trespassers” at the end

of the sixth line at page 7594:

“Counsel for appellant has called to the attention

of the court a decision of the Supreme Court of

Alaska, Hakala and Kitchen v. Atxam Corp. No.

3304, (April 22, 1988), decided after the filing of the

decision in this case, that reaches a contrary result.”

The panel as constituted in the above case has voted to

deny the petition for rehearing and to reject the suggestion for

rehearing en banc.

The full court has been advised of the suggestion for rehear-

ing en banc, and no judge of the court has called for an en

banc rehearing. Fed. R. App. P. 35(b)

The petition for rehearing is denied and the suggestion for

rehearing en banc is rejected.

5a

OPINION

FLETCHER, Circuit Judge:

This action arises from a land dispute between the United

States and several homesteaders in the Eagle River Valley

area in Alaska. Some of these claims have already been

decided adversely to the claimants, on jurisdictional grounds.

See McIntyre v. United States, 789 F.2d 1408 (9th Cir. 1986);

Lee v. United States, 629 F.Supp. 721 (D. Alaska 1985), a//‘d,

809 F.2d 1406 (9th Cir. 1987), cert. denied, sub nom. Lee vy

Eklutna, Inc., — S.Ct. —, 56 U.S.L.W. 3498 (Jan. 26, 1988).

Donnelly appeals the district court’s dismissal of this

action.’ We affirm.

BACKGROUND

In 1950, the Federal Power Commission (FPC) set aside

certain lands in the Eagle River Valley for possible power

development projects, thereby withdrawing the lands from

the public lands open to entry by homesteaders. Two years

later, the FPC issued a “no injury” determination that power

development in the area would not be injured if the lands

were restored to homestead entry. Although § 24 of the Fed-

eral Power Act (FPA), 16 U.S.C. § 818, provides that the Sec-

retary of the Interior shall restore lands to entry after a “no

injury” determination, the Secretary did not do so (for

unknown reasons). Accordingly, the Donrellys’ homestead

applications to settle on some of this land were rejected in

1957 and again in 1959. From 1957 through 1968, the Don-

nellys tried to gain title by various means, including petitions

to their congressional representatives and to the Secretary of

‘Therese U. Donnelly, as personal representative of the estate of Joseph

F. Donnelly, deceased, was substituted as the Appellant in this action fol-

lowing the death of her husband, the original appellant, who brought suit

on behalf of the Donnellys.

6a

the Interior, repeated renewals of the homestead application

with the Bureau of Land Management (BLM), and, later, spe-

cilic chullenges to the power classification withdrawal. How-

ever. they departed from the formal appeal procedure of the

BLM as early as 1959, and only availed themselves of the pro-

-edure in 1967-68, when they began a renewed challenge to

the power site classification. The Donnellys retained legal

counsel in 1963, and in 1964 they applied for homestead

patent to 67.5 acres, which surveys showed were outside the

boundaries of the withdrawn lands. They received a patent to

this portion in 1965, leaving 92.5 acres in dispute. The parties

disagree as to whether the patent to 67.5 acres represented a

“compromise and settlement.”

In 1970. the Donnellys received a notice of trespass from

ihe government and were ordered to leave the power reserve

land and remove improvements they had placed on it. The

following year Congress passed the Alaska Native Claims Set-

tlement Act (ANCSA), Pub. L. No. 92-203, 85 Stat. 688

(codified at 43 U.S.C. §§ 1601-41), which extinguished aborig-

inal land claims of Alaskan natives in exchange for the right

of native corporations to select acreages of public lands. In

1974, Eklutna, Inc., selected the lands claimed by the Donnel-

lys. In 1975 the government filed a trespass action against the

Donnellys, who counterclaimed against the United States

under the Quiet Title Act (QTA), Pub. L. No. 92-562, 86 Stat.

1176 (codified at 28 U.S.C. § 2409a). In 1979, the government

patented the land to the native corporations, and its trespass

action was dismissed, leaving only the Donnellys’ counter-

claims and third party claims against Eklutna.

On November 5, 1982, after a bench trial, the district court

dismissed the Donnellys’ counterclaims against the United

States and their third party claim of title against Eklutna. On

November | 3, 1986, the district court granted summary judg-

ment dismissing the Donnellys’ second cause of action

aguinst Eklutna, based on § 14(c)(1) of ANCSA, 43 U.S.C.

§ 1613(c\(1). Finally, on December 5, 1986, the district court

Ta

amended the 1982 memorandum decision, and entered sum-

mary judgment against the Donnellys on their remaining

claims based on ANCSA, §§ 14(g) and 22(b) and on violations

of equal protection and due process.

DISCUSSION

I. Lack of Jurisdiction

The QTA provides the exclusive remedy for resolving title

disputes against the United States. Block v. North Dakota,

461 U.S. 273, 286 (1983). Defendants urge, and the district

court found, two grounds for dismissal under the QTA of the

counterclaims against the United States: that the United

States disclaimed interest in the land and that the statute of

limitations had run. Significantly, if the United States is dis-

missed from the case the title claims against Eklutna must be

dismissed also because the United States is an indispensable

party to the Donnellys’ action against Eklutna. Lee v. United

States, 809 F.2d at 1410-11.

A. United States’ Disclaimer of Interest

Section 2409a(e)’ provides that:

If the United States disclaims all interest in the

?As a threshold matter, the Donnellys argue that their title claims are

asserted as defenses to the ,overnment’s trespass action against them, and

thus cannot be dismissed under § 2409a according to Block, 461 U.S. at

291-92, which stated that “[nJothing prevents the claimant from continuing

to assert his ule, in hope of inducing the United States to file its own quiet

title suit, in which the matter would finally be put to rest on the merits.”

The Donnellys’ interpretation of Block may well be correct, hypothetically;

in this case, however, their argument is meritless because the United States’

trespass action against the Donnellys was dismissed after the land was pat-

ented to Eklutna. Thus, their assertion of title in this action is thrown back

upon their counterclaims, which must stand or fall under the QTA.

*Formerly § 2409a(d), prior to 1986 amendments.

8a

real property or interest therein adverse to the plain-

tiff at any time prior to the actual commencement of

the trial, which disclaimer is confirmed by order of

the court, the jurisdiction of the district court shall

cease unless it has jurisdiction of the civil action or

suit on ground other than and independent of, the

authority conferred by section 1346(f) of this title.

(Section 1346(f) is the jurisdiction-vesting counterpart to

§ 2409a’s waiver of sovereign immunity.) The United States

conveyed the disputed homestead property as required under

ANCSA, and the disclaimer was confirmed by the district

court as valid and in good faith. See Lee v. United States, 629

F.Supp. at 726. Therefore, the district court is without juris-

diction over the Donnellys’ counterclaims, unless there is an

alternate jurisdictional ground independent of § 1346(f)’s

“quiet title” jurisdiction.

[1] The Donnellys urge that federal question jurisdiction be

found under 28 U.S.C. § 1331, because their claims implicate

16 U.S.C. § 818 (§ 24 of the FPA, authorizing withdrawal of

lands from entry), 43 U.S.C. § 161 (the Homestead Act,

repealed 1976) and 43 U.S.C. § 1601 (ANCSA). To the extent

that these statutes go to the Donnellys’ claim to title, they do

not function independently of the QTA in the Donnellys’

action, do not by themselves waive sovereign immunity, and

. therefore do not confer jurisdiction.

A more complicated question is presented by the sugges-

tion that the Donnellys have a separate jurisdictional ground

under the Administrative Procedure Act (APA), 5 U.S.C.

§ 702, which waives sovereign immunity for claims of wrongs

sulfered by agency action. The Donnellys claim they suffered

such wrongs because the BLM misapplied FPA § 24 and the

homestead laws. It is ambiguous whether, and to what extent,

the APA confers jurisdiction in this case on this basis.

9a

{2} On one hand, the QTA provides the exclusive remedy

for title disputes against the government, and assertion of the

APA as an independent means for pressing such suits has

been expressly rejected. Block, 461 U.S. at 286 n.22; McIntyre

v. United States, 789 F.2d 1409, 1410 (9th Cir. 1986); Lee v.

United States, 809 F.2d at 1409 & n.2. In Block, the Court

rejected North Dakota’s claim that the APA’s 1976 amend-

ments established “a new supplemental remedy” (emphasis

added) to assert property title against the United States. 46!

U.S. at 286 n.22. The Court noted that the APA could not be

interpreted to overcome the QTA’s exclusive remedy because

the APA “specifically confers ‘no authority to grant relief if

any other statute that grants consent to suit expressly or

impliedly forbids the relief which is sought? ” Jd. The QTA

expressly forbade relief where the 12-year limitations period

had run, under § 2409a(g).‘

[3] However, it is not necessarily the case that the APA is

unavailable as a jurisdictional ground, as opposed to a

remedy, under the reasoning of Block. We must consider

whether § 2409a(e) “forbids relief” under the QTA when the

United States has disclaimed an interest in the property,

when an alternate jurisdictional basis would otherwise exist

under the APA. In other words, does the existence of an alter-

nate jurisdictional basis preserve jurisdiction for resolving

title disputes under the QTA, or does the qualifying language

of § 2409a(e) simply mean that the disclaimer of interest will

not divest the court of jurisdiction over independent claims

not disputing title?

In Lee v. United States, we suggested that allegations of

“administrative wrongdoing” will trigger the exception to

§ 2409a(e) and provide a jurisdictional basis for the QTA

claim.

“Formerly, § 2409a(f).

10a

We do not hold, and do not read McIntyre to hold,

that the Quiet Title Act constitutes the exclusive

source of jurisdiction for ail claims against the

United States involving the United States’ disposi-

tion of public lands. Section 2409a(e) of the Act pro-

vides that upon the United States’ disclaimer of

interest, jurisdiction in the district court will con-

tinue if the court “has jurisdiction ... on ground{s]

other than and independent of the authority con-

ferred by [the jurisdictional provision of the Act].”

28 U.S.C. § 2409a(e)(West Supp. 1987). The Admin-

istrative Procedure Act provides jurisdiction in

cases of administrative wrongdoing.

809 F.2d at 1409 n.2. Significantly, no independent adminis-

trative wrongdoing was alleged in Block or McIntyre, and in

Lee it was alleged but barred by the statute of limitations. 809

F.2d at 1409 n.2. Presumably, in Block and McIntyre the only

“administrative wrongdoing” was the government’s alleged

wrongful assertion of title itself, and this, without more, could

not make the APA into a jurisdictional peg for a QTA claim.

However, the Donnellys assert that the Secretary’s unjustified

failure to obey § 24 of the Federal Power Act wrongfully pre-

vented them from establishing title.

There is a good reason to allow the Donnellys to assert the

APA as a jurisdictional basis for their title dispute under

§ 2409a(e). Otherwise, a claim founded on a title dispute

stemming from administrative wrongdoing might be ren-

dered unreviewable by the United States’ pre-trial disposal of

the property, because § 2409a(e) would require dismissal of

the claim against the United States. Moreover, in any title

dispute or trespass defense against the successor-in-interest to

the United States (here, Eklutna), the Donnellys would be

barred from asserting their “administrative wrongdoing” the-

ory of title because, under Lee, the United States would be a

necessary party over whom no jurisdiction could be exer-

cised. Lee, 809 F.2d at 1410-11. We also note that any APA

lla

claim raised by the Donnellys against the United States

would be premised on the title dispute; since the APA does

not authorize money damages, the Donnellys could not state

a claim for relief under the APA. Even an inverse condemna-

tion action could be barred if the Donnellys are not entitled

to assert title to the land. In sum, we are not aware of a claim

of administrative wrongdoing that could be brought in these

circumstances other than a QTA claim.

We conclude that § 2409a(e) allows jurisdiction over a title

dispute where the title claim is founded on alleged adminis-

trative wrongdoing, beyond a simple assertion of title by the

government. See Lee, 809 F.2d at 1409 n.2. If the government

deprives someone of title by administrative wrongdoing, it

cannot evade review simply by selling or otherwise disposing

of the property.®

B. Statute of Limitations Bar

Quiet title claims against the United States are subject to a

12-year statute of limitations from the date on which the

claimant “knew or should have known of the claim of the

United States.” 28 U.S.C. § 2409a(g). This statute of limita-

tions applies retroactively. See Block, 461 U.S. at 284; Grosz

v. Andrus, 556 F.2d 972, 975 (9th Cir. 1977). If the statute of

limitations has run, we lack jurisdiction to consider the Don-

nellys quiet title claims. Block, 461 U.S. at 292; McIntyre, 789

F.2d at 1411. We review de novo the district court’s determi-

nation concerning QTA jurisdiction. Lee, 809 F.2d at 1408.

5McIntyre does not require a different result. In McIntyre, we stated that

the APA, 5 U.S.C. § 702 “did not create an independent jurisdictional basis

for challenging the government's title to real property.” 789 F.2d at 1410-

11. There, as in Block, we considered only whether the APA could afford

relief where the | 2-year statute of limitations had run; we did not consider

the “disclaimer bar” of 28 U.S.C. § 2409a(e). We decline to construe

McIntyre as requiring the absurd result that the government could deprive

someone of property title by administrative wrongdoing and then immu-

nize its actions by selling the contested property on the eve of trial.

12a

The Donnellys filed their answer and counterclaims ugainst

the United States on May 21, 1975. Accordingly, their QTA

claim is barred if it accrued prior to May 21, 1963. The Don-

nellys first received notice of the government’s position—that

sizable portions of their claim were within withdrawn

lands—as early as 1957, and their last administrative appeal

was rejected in 1968, but the facts are not clear as to the date

within this period on which the Donnellys’ claim accrued.

The Donnellys argue that their claim accrued only when the

administrative procedures were completed. In Crown Cvat

Front Co. v. United States, 386 U.S. 503, 511-12 (1966), the

Court held that where a government contract provided for

administrative’ review of the contract dispute in the first

instance, the statute of limitations begins to run only on

accrual of the “right of action” in district court, following

administrative review. Crown Coat Front suggests to us that

a QTA claim should not accrue until administrative proce-

dures are exhausted, so long as an action brought by a claim-

ant prior to exhaustion would be subject to dismissal on that

ground. Cf McIntyre, 789 F.2d at 1411 (“At the very latest,

the Secretary of the Interior’s final and unfavorable March

11, 1964, decision rejecting the notice of homestead entry

should have given McIntyre knowledge that the government

claimed an interest in the land.”). The district court con-

cluded that, under the regulations in effect at the time, the

Donnellys’ claim was subject to dismissal for non-exhaustion.

Dist. Ct. Memorandum at | 1-12 (citing Montgomery v. Rum-

sfeld, 572 F.2d 250, 254 (9th Cir. 1978); Davis v. Nelson, 329

F.2d 840, 847 (9th Cir. 1964)). If we assume that the district

court is correct, we would concede that had the Donnellys fol-

lowed the administrative appeals process, their claim in dis-

trict court under the QTA would not have accrued until some

final BLM decision was rendered.

[5] The problem for the Donnellys is that they did not fol-

low the administrative review procedure.* The local BLM

*This procedure called for an appeal to the BLM Director and then to the

Secretary of the Interior. See Davis v. Nelson, 329 F.2d at 846-47.

13a

office rejected the Donnellys claim in a decision dated

November 11, 1957. That decision gave notice of the appeal

procedure, but was not received by the Donnellys, who had

moved. However, it was handed to Mrs. Donnelly in April

1958, when she went to the BLM office having heard from a

neighbor that the Donnelly claim had been closed. A BLM

official told Mrs. Donnelly that her only recourse was to refile

the homestead claim, which she did. Before the response to

this claim came down, the Donnellys tried political channels,

contacting Delegate (later Senator) Bartlett, who tried unsuc-

cessfully to intervene on their behalf, and (together with Lee

and others) petitioning the Assistant Secretary of the Interior.

The responses generated by these efforts uniformly insisted

that the Donnellys’ claim on the withdrawn lands was invalid,

and even that they were in trespass. The Donnellys’ claim was

again rejected by the local BLM office by letter dated March

5, 1959.” The Donnellys did not appeal, but rejected the

BLM’s decision, refused the BLM’s tender of their homestead

filing fees, and stated that they would await the resolution of

their claim between Senator Bartlett and the Interior Depart-

ment. The BLM responded that it would deposit the Donnel-

lys’ money in a “suspense account” pending final action

“determined by Senator Bartlett and the _ Interior

Department.”

{6] Thus, by 1959 the Donnellys had departed from the for-

mal appeal procedure. It therefore cannot be said that the

statute of limitations was tolled by their pursuit of adminis-

trative process, regardless of whether any action they might

have thereafter brought would be subject to dismissal for non-

exhaustion. In 1961, the Federal Power Commission notified

the BLM that the disputed land was withdrawn by a new

Power Site classification, and in the same year the BLM filed

a Plat of Survey (notice of which was published in the Federal

Register), which determined that all but 67.5 acres of the

7It is unclear from the record whether this letter advised the Donnellys

of their appeal rights.

l4a

Donnellys’ claim was on withdrawn land. We agree with the

district court that by this time at the latest, the Donnellys had

sufficient notice “of the claim of the United States” to start

the 12-year limitations period. 28 U.S.C. § 2409a(g); see u/so

Lee, 629 F.Supp. at 724; 809 F.2d at 1410. Moreover, the

Donnellys by 1961 were not engaged in pursuit of administra-

tive remedies that would toll the statute of limitations.* The

12-year limitations period had expired by the time the Don-

nelly’s brought their counterclaims in 1975.

C. Claims Against Eklutna

[7] The Donnellys assert quiet title claims against Eklutna,

Inc., which received patents to the disputed lands from the

United States. In order to challenge the validity of Eklutna’s

patents, the Donnellys must establish their own entitlement

to the lands. Lee, 809 F.2d at 1410. The United States is an

indispensable party to the action against Eklutna, because the

Donnellys “can only properly establish their asserted entitle-

ment to the disputed lands in direct proceedings against the

United States. ... It follows from the fact that the United

*In 1963 and1964, less than 12 years from the filing of the counterclaims,

the Donnellys retained counsel, met and corresponded with BLM officials,

contacted another Senator, filed a new homestead claim, and finally

received patent to the undisputed lands in 1965. The BLM maintained a

consistent position that the disputed lands were not open to homestead

entry. In 1967 and 1968, the Donnellys, for the first time, filed claims and

appeals with the Interior Department to have the power classifications

revoked. These were finally rejected in 1968.

- Although a “final” determination of the Donnellys’ claim was made in

1968, this claim was a renewal of their earlier claim, and is not an appropri-

ate accrual date for their QTA action.

We note that the Donnellys “sat on their rights” and brought no quiet

title claim from October 1972, when QTA was enacted, until May 1975,

when they filed their counterclaims in response to the government's tres-

pass action against them. (The government served the Donnellys with a

notice of trespass in 1970.) The statute of limitations expired during this

period.

15a

States is an indispensable party to this action that the district

court’s lack of jurisdiction as to the claims against the United

States requires the dismissal of the claims against the Native

corporations.” /d. at 1411. Accordingly, the Donnellys quiet

title claims against Eklutna must be dismissed.

If. Non-QTA Claims

The Donnellys argue that their claims under ANCSA

§ 14(c) and the common law theory of “constructive trust” do

not hinge on the QTA and are therefore not barred by the

jurisdictional defects of the QTA claims.The same ANCSA

claim is advanced here by James Lee. It was not decided in

the published Lee decisions, and has been consolidated with

the Donnellys’ appeals.

A. ANCSA § 14(c)

Appellants claim that Eklutna, Inc., and Cook Inlet Region,

Inc., (the native corporations) violated § 14(c)(1) of ANCSA,

43 U.S.C. § 1613(c)(1), by failing to convey them the disputed

land. Section 14(c)(1) provides that the native corporation

receiving patents under ANCSA “shall first convey to any

Native-or non-Native occupant, without consideration, title

to the surface estate of the tract occupied as of December 18,

1971...asa primary place of residence, or as a primary place

of business .. .” Appellants claim to have been occupying the

disputed lands as primary places of residence and business as

of December 18, 1971. The district court held that, as tres-

passers, Lee and Donnelly could not be held to have

“occupied” the lands within the meaning of § 1 4(c)(1).

[8] As the district court noted, § 14(c)(1) could not operate

as “a sort of amnesty provision extending rights to individu-

als who are merely trespassers, failed homesteaders, or land

users without any vested rights prior to December 1, 1971,”

because there was no indication of congressional intent to

override the established principle that individuals could

16a

obtain no rights to withdrawn lands. See United States v. Con-

solidated Mines and Smelting Co., 455 F.2d 432, 444 (9th Cir.

1971). Moreover, the congressional intent to provide a “just

and fair settlement” of native land claims is inconsistent with

an interpretation of § 14(c)(1) that would reduce the land pat-

ented to native corporations in favor of trespassers.’

[9] However, appellants argue that they are not trespassers,

by virtue of their vested equitable title to the land. We need

not resolve this merits issue."* In Lee, 629 F.Supp. at 730-32,

the district court held that ANCSA could not require native

corporations to resolve the merits of a homesteader’s title dis-

pute with the government. The same reasoning should apply

to ANCSA § 14(c)(1). To the extent that an occupant is enti-

tled only to a conveyance of land if he is not in trespass,

appellants’ § 14(c\1) claims would require the native corpo-

ration to resolve the appellants’ title dispute with the govern-

ment. Put another way, appellants’ § 14(c)(1) claims are,

again, based on their title claim, which cannot be resolved in

any action to which the United States is not a party. Accord-

ingly, the § 14(c)(1) claims are also barred by the QTA statute

of limitations.

B. “Constructive Trust”

The Donnellys claim that the disputed lands were improp-

erly conveyed by the United States to Eklutna, and therefore

should be considered held by Eklutna in constructive trust on

behalf of the Donnellys. For the reasons stated in Lee v.

United States, 629 F.Supp. at 728-29, this common law claim

fails because it is preempted by ANCSA.

*Counsel for appellant has called to the attention of the court a decision

of the Supreme Court of Alaska, Hakala and Kitchen v. Atxam Corp. No.

3304, (April 22, 1988), decided after the filing of the decision in this case,

that reaches a contrary result.

*°We note that any resolution of the merits would call for speculation as

to whether the appellants’ claims may have been superseded by other

claims even if the Secretary had followed FPA § 24.

17a

CONCLUSION

For the reasons stated above, we AFFIRM the district

court’s dismissal of appellants’ claims against all defendants.

18a

Appendix B-

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

UNITED STATES OF AMERICA, )

Plaintiff,

v.

JOSEPH F. DONNELLY,

Defendant.

Ne ee ee eee ee ee ee”

JOSEPH F. DONNELLY,

Plaintiff on

Counterclaims,

Vv.

UNITED STATES OF AMERICA,

le ee

et al., NO. A 75-27 Civil

MEMORANDUM OF

Detendants on DECISION

Counterclaims.

FACTS'

Joseph P. Donnelly, on April 22, 1957, filed at the local

land office of the Bureau of Land Management (BLM) in

Anchorage a notice of location or occupancy for a home-

stead site in the Eagle River valley. The BLM determined

that Donnelly’s lecation fell within both Power Site Clas-

‘For a more complete discussion of the facts refer to the findings

I made dated February 5, 1981.

19a

sifications #399 (established March 29, 1950) and #107 (es-

tablished June 6, 1925).

Unbeknownst to Donnelly, earlier in 1952 the BLM had

requested from the Federal Power Commission (FPC) a

determination under Section 24 of the Federal Power Act,

as amended,’ that the value of the land as a power site

would suffer no injury if opened to selection, entry, or

location. The FPC responded by issuing its no-injury de-

termination, thereby allowing the Secretary of Interior

(Secretary) to reclassify the land. By 1957, some but not

all of the land had been either restored to entry or re-

served for other purposes. Donnelly’s claimed land was

part of the land that remained withdrawn under the power

site classification.

Accordingly, the BLM rejected Donneliy’s homestead

claim in 1957. Donnelly first learned of the rejection letter

in April 1958. The letter stated that the land was with-

drawn under a power site classification and therefore not

subject to entry. The letter informed Donnelly that he

could appeal this rejection to the Director of BLM and

that he could petition the FPC to restore the land. The

letter added a caveat that should the FPC restore the

land, Donnelly would not receive a preference right to the

land.

Based on the advice of a local BLM official, Donnelly

filed a second notice of settlement with the land office.

In addition, Donnelly filed a petition with the FPC seeking

restoration. The FPC responded advising Donnelly that a

Section 24 no-injury determination covering the land had

previously issued and that restoration to entry was a mat-

ter for the BLM. The FPC suggested Donnelly again in-

quire at the Anchorage land office.

In July 1958, Donnelly notified Alaska’s territorial del-

egate to Congress, Bob Bartlett (later United States Sen-

716 U.S.C. §818.

20a

ator Bartlett) of his problem with the BLM and requested

assistance in obtaining patent. In the meantime, Donnelly

submitted his final proof for patent on his claim. Three

days later, March 5, 1959, his claim was rejected because

of the conflicting power site classification. Donnelly was

also warned that further occupancy would constitute tres-

pass and he was informed that his filing fees would soon

be refunded.

Instead of taking an appeal from this final determina-

tion, Donnelly wrote BLM stating that he did not accept

their final determination, that his rights were ‘‘beyond

conclusive question,’’ and that he would return the re-

funded filing fees pending resolution of the ongoing com-

munications between Senator Bartlett and the Interior

Department. Donnelly at no time has sought administrative

relief of the BLM’s rejection of his claim although at one

time he attempted to obtain a resolution of his grievance

with the BLM by appealing to United States Senators Bob

Bartlett and Ernest Gruening.

The BLM was notified on April 21, 1961 by the FPC

that the land in dispute had been withdrawn once more

under Power Site Classification #2296. After that date,

land within the power site classification has not been avail-

able for homestead entry. The BLM advised Donnelly in

1962 that the method employed in surveying land within

power site reservations had been refined. This adjustment

resulted in a determination that 67.5 acres of Donnelly’s

claim was now outside the reserve. Donnelly filed yet an-

other application and ultimately received a patent to the

67.5 acres on June 25,1965. In 1971 the land was with-

drawn for selection by the village of Eklutna under pro-

visions of the Alaska Native Claims Settlement Act, 43

U.S.C. §1601, et. seq. Eklutna filed a village selection on

July 17, 1974 and ultimately received a patent to the land

on May 24, 1979.

2la

LAW

The United States brought a trespass claim on February

10, 1975 to enjoin Donnelly’s further use of the disputed

land. Donnelly defended that action by claiming that he

had equitable title to the land and but for the unlawful

actions of the Secretary he would have received a patent

to the land. Donnelly also counterclaimed against the

United States for a determination upholding the validity

of his homestead claim and for an order requiring the

Secretary to grant Donnelly a patent. I initially held the

government’s trespass action in abeyance pending deter-

mination of the validity of Donnelly’s claim. After the

United States patented the land to Eklutna Corporation

pursuant to the Alaska Native Claims Settlement Act, I

dismissed the government’s trespass action. Eklutna, as

record owner of the land, has appeared in order to protect

its interest. From the outset I have felt that this suit raises

difficult problems of federal jurisdiction. I refused to dis-

miss this action at earlier stages believing that the de-

velopment of a factual record would shed needed light on

the jurisdictional issues. For the following reasons I now

hold that this court lacks jurisdiction over Donnelly’s coun-

terclaims.

SOVEREIGN IMMUNITY

Donnelly has named as a defendant, among others, the

Secretary of Interior. It is established law in this circuit

that an action against a federal official, who is alleged to

have acted unconstitutionally or in violation of his statu-

tory authority, is not necessarily barred by the doctrine

of sovereign immunity. City of Santa Clara v. Andrus, 572

F.2d 660, 679 (9th Cir. 1978). The nature of the relief

sought controls. If the relief sought is not limited to ces-

sation of alleged unlawful conduct but requires affirmative

action by the sovereign or disposition of unquestionably

sovereign property, jurisdiction may be defeated by sov-

ereign immunity. Larson v. Domestic and Foreign Com-

22a

merce Corporation, 337 U.S. 682, 691 (1949); City of Santa

Clara v. Andrus, 572 F.2d at 679.

The substance of Donnelly’s counterclaims is that the

Secretary violated a mandatory duty under 16 U.S.C. §818

to restore the land to entry once the FPC issued a Section

24 no-injury determination. Since the Secretary violated

that obligation, Donnelly asks that the validity of his home-

stead claim be judicially recognized and the Secretary or-

dered to issue a patent for the remaining ninety-two and

one-half (92.5) acres of land. This relief sought would re-

quire not only affirmative action but involve the disposition

of federal property precluded by Larson.

A narrow exception to the bar against affirmative relief

exists when the burden imposed on the government by

granting the requested relief would not outweigh any con-

siderations of private harm; if the government is merely

“minimally inconvenienced” by the relief sought, sovereign

immunity poses no bar. City of Santa Clara v. Andrus,

572 F.2d at 679; DeLao v. Califano, 560 F.2d 1384, 1391

(9th Cir. 1977).

I conclude that this case does not fall within this narrow

exception. A factor of consideration when assessing the

burden on the government is whether the relief sought

would jeopardize prior transactions between the govern-

ment and third parties. City of Santa Clara, 572 F.2d at

679. In this case, the land Donnelly seeks has as early as

__ 1971 been withdrawn for selection by the village of Ek-

jutna under ANCSA, 43 U.S.C. §1601 et. seg. Eklutna filed

a village selection on July 17, 1974 and received patent

to the land on May 24, 1979. To now grant the relief

Donnelly seeks would jeopardize the effective administra-

tion of the ANCSA program and disturb the settled ex-

pectations of Eklutna Corporation. The undoing of these

prior transactions, plus the burden of finding adequate

replacement land for Eklutna, go well beyond the minimal _

inconvenience test discussed in City of Santa Clara.

23a

Since under Larson this action is a suit against the

sovereign, Donnelly must demonstrate a specific statutory

waiver of sovereign immunity as well as an independent

basis for federal jurisdiction.

a. Quiet Title:

The first of Donnelly’s claims of federal jurisdiction is

a quiet title action under 28 U.S.C. §2409a(a), an express

waiver of sovereign immunity. This court has jurisdiction

over civil actions under §2409a pursuant to 28 U.S.C.

§1346.

There was considerable doubt at one time as to whether

or not §2409a might be applied to the facts of this case.

In any event, Donnelly’s reliance now on this statute is

misplaced. In 1972 Congress added 28 U.S.C. §2409a (f)

imposing a twelve year statute of limitations on actions

under §2409a(a). This limitation on actions has been held

to have retroactive application. Grosz v. Andrus, 556 F.2d

972, 975 (9th Cir. 1977).

The cause of action is deemed to have accrued on the

date Donnelly knew or should have known of the United

States’ interest. 28 U.S.C. §2409a(f); Park County, Mon-

tana v. United States, 626 F.2d 718, 720 (9th Cir. 1980).

On March 5, 1959, Donnelly received a rejection letter

from BLM which expressly stated that despite the Section

24 no-injury determination, the land in question was pres-

ently withdrawn and would in all probability remain so at

least until it was surveyed. Donnelly was notified that any

further use or occupancy would “constitute a trespass

_ against the United States government.”

a

I conclude that on-Mareh5, 1959 Donnelly knew of the

extent of the United States’ claim and his cause of action,

if any, under §2409a(a) thereby accrued. Since he failed

to assert his claim until 1975, it is now barred by §2409a(f).

In suits against the United States, the defense of statute

24a

of limitations goes to the very jurisdiction of the court.

Park County, Montana v. United States, 626 F.2d at 720.°

b. Mandamus:

Donnelly tries to find jurisdiction by invoking federal

mandamus jurisdiction under 28 U.S.C. § 1361. This effort

fails for two reasons: Donnelly’s lawsuit does not present

a proper request for the extraordinary remedy of man-

damus, and 28 U.S.C. §1361 does not provide a waiver of

sovereign immunity.

Mandamus is traditionally proper only to command an

official to perform an act which is so plainly prescribed

as to be free from doubt. Smith v. Grimm, 534 F.2d 1346,

1352 (9th Cir. 1976); Jarette v. Resor, 426 F.2d 213, 216

(9th Cir. 1970); see also, Knuckles v. Weinberger, 511 F.2d

1221 (9th Cir. 1975) (interpreting strict standard to permit

mandamus to compel compliance with due process require-

ments).

Donnelly’s mandamus argument is essentially as follows.

Once the FPC issued a Section 24 no-injury determination,

the Secretary was statutorily obligated to revoke the power

site classification and open the land for homestead entry.

Donnelly relies on the recent decision Reeves v. Andrus,

465 F.Supp. 1065 (D. Ak. 1979) as authority for the Sec-

retary’s duty under 16 U.S.C. §818. Since Donnelly’s claim

was rejected because of the conflicting power withdrawal,

had the Secretary restored the land to entry as required,

Donnelly maintains his claim would have been accepted

and a patent issued. Donnelly cites inter alia, Lane v.

Hoglund, 244 U.S. 174 (1917); Armstrong v. Udall, 435

F.2d 38 (9th Cir. 1970); Zwang v. Udall, 371 F.2d 634

(9th Cir. 1967) for the proposition that once a homestead

’ Donnelly argues that the statute of limitations did not run because

government actions amounted to fraudulent concealment and promises

of future consideration of his claim. These allegations are wholly un-

supported by the record.

25a

applicant has completed all statutory requirements nec-

essary to perfect a claim, and the validity of the claim

may no longer be questioned, a plain duty on the govern-

ment exists and mandamus will lie to compel that action.

The United States responds that under Buch v. Morton,

449 F.2d 600, 607 (9th Cir. 1971) and the so-called ‘“‘track-

book rule’, even if the Secretary had a duty to revoke

the power site classification, until the Secretary acts the

lands remain withdrawn and ineligible for entry. I do not

now decide the applicability of the government’s position

to Donneily’s mandamus theory because his theory fails

on a more fundamental levei. His theory rests on the prop-

osition that the Secretary has a mandatory duty, enforce-

able by mandamus, to open land to homestead entry once

a Section 24 determination is issued. I find no authority

for this proposition.

Donnelly’s reliance on Reeves v. Andrus, 465 F.Supp.

1065 (D. AK.1979) is misplaced. The only issue resolved

in that decision was whether or not the Secretary could

refuse to modify a relevant power site classification once

a non-injury determination had been made. Reeves, 465

F.Supp. at 1067. The court rejected the Secretary’s po-

sition in Reeves that despite a no-injury determination he

retained discretion under Section 24 of the Federal Power

Act, 16 U.S.C. §818, to refuse to revoke the power site

classification for reasons unrelated to the power site value

of the reserved land. The court held that the Secretary

has no such discretion and must revoke the withdrawal.

But the court was careful to limit the holding and explicitly

stated:

The Secretary’s power to withdraw the land in

order to protect other public values is a different

issue and has nothing to do with the Secretary’s

discretion under 16 U.S.C. §818.

This ninety day period would allow the Secretary

26a

to determine whether there are other public val-

_ ues or interests in the land that require the site

to be withdrawn from entry under other powers

possessed by the Secretary.

Reeves, 465 F.Supp. at 1069-70. The court expressly dis-

tinguished the absence of discretion under §818 from the

Secretary’s statutory or implied ‘‘other powers”’ which re-

quire the exercise of discretion. The Secretary might have

chosen to open the land.as Donnelly suggests or he might

have chosen to withdraw the land under his ‘other

powers.”’ Mandamus does not lie to compel a particular

application of the Secretary’s discretion.

Furthermore, since this is an action against the sover-

eign, Donnelly must demonstrate a specific statutory

waiver of immunity. 28 U.S.C. §1361 does not provide a

waiver of sovereign immunity. Smith v. Grimm, 534 F.2d

1346, 1352 (9th Cir.), cert. denied, 429 U.S. 980 (1976);

Cape Fox Corp. v. United States, 456 F.Supp. 784, 794

(D.Ak. 1978). As discussed infra, the Administrative Pro-

cedure Act, 5 U.S.C. §702 waiver of sovereign immunity

is unavailable to Donnelly.

c. Federal Question Jurisdiction:

The final basis of federal jurisdiction which Donnelly has

pleaded is 28 U.S.C. §1331. Donnelly argues that his cause

of action arises under the various homestead statutes as

well as 16 U.S.C. §818. However, §1331 does not provide

a waiver of sovereign immunity. Smith v. Grimm, 534 F.2d

943 (9th Cir. 1973); Cape Fox Corp. v. United States, 456

F.Supp. 784, 794 n.23 (D. AK. 1978).

The Administrative Procedure Act does provide a waiver

of sovereign immunity. 5 U.S.C. §§701-706; Cape Fox

Corp., v. United States, 456 F.Supp. at 795. The parties

have extensively briefed the applicability of the APA to

this action. I initially ruled that Donnelly could not proceed

27a

under the APA. Because of the significance of this deter-

mination, I will elaborate on my ruling.

The APA is unavailable to Donnelly for several reasons.

Principally, Donnelly has never undertaken to exhaust his

administrative remedies. This failure has prevented the

development of an adequate record for judicial review some

sixteen years later.

Donnelly’s essential grievamce with the BLM concerns

the rejection of his homestead applications in 1957 and

1959 based on the conflicting power site classifications

which he maintains should have been revoked sometime

after the 1952 no-injury determination.‘ When Donnelly

was first notified that his claim was rejected in 1957, the

rejection stated that he could appeal that decision to the

Director of BLM under 43 C.F.R. §§ 221.1 - 221.4. When

Donnelly received the second rejection letter in 1959, he

was notified that despite the no-injury determination the

power site classification would not be revoked in the near

future. At that time Donnelly should have taken an appeal

to the Director and possibly to the Secretary under 43

C.F.R. §221.31.

In order to seek judicial review of agency action, plaintiff

must first exhaust available administrative remedies. Mont-

gomery v. Rumsfield, 572 F.2d 250 (9th Cir. 1978). If a

statute or valid administrative regulation mandates ex-

haustion, failure to exhaust is a jurisdictional defect unless

exhaustion would be futile or inefficacious. Compare Doria

Mining & Engineering Corp. v. Morton, 608 F.2d 1255,

1257 (9th Cir. 1979) with Aleknagik Natives Ltd. v. An-

drus, 648 F.2d 496 (9th Cir. 1980). If no such statutory

duty exists, it is within the sound discretion of the trial

‘ Donnelly’s grievance is so limited because from 1961 until the land

was withdrawn by Eklutna in 1971, the land was properly withdrawn

under another power site classification without a corresponding sub-

sequent Section 24 no-injury determination.

28a

court to determine whether or not a judicial exhaustion

requirement should apply. United Farm Workers v. Ari-

zona Agricultural Employment Relations Board, 669 F.2d

1249, 1253 (9th Cir. 1982); Montgomery v. Rumsfield, 572

F.2d at 252-253. The trial court must consider the need

for an administrative record for proper judicial review, the

agency’s interest in applying its own expertise and cor-

recting its own errors, and the desire to preserve the

efficient and independent existence of the administrative

process. Montgomery v. Rumsfield, 572 F.2d at 254.

5 U.S.C. §704 limits judicial review to “final agency

actions’ for which there is no other adequate remedy in

a court. Agency regulations should be examined to deter-

mine if final agency action has occurred. The regulatory

scheme in existence in 1959 is not as conceptually clean

as the present 43 C.F.R. §4.21(b) requirement of admin-

istrative exhaustion. Nonetheless the Ninth Circuit Court

of Appeals imposed an exhaustion requirement in the very

regulations that applied to Donnelly. Davis v. Nelson, 329

F.2d 840, 846-47 (9th Cir. 1964).

Under 43 C.F.R. §221.1 any party adversely affected by

a decision of a BLM officer has a right of appeal to the

Director of BLM. On appeal, the Director must render a

written decision, 43 C.F.R. §221.9, which can then be

appealed to the Secretary. 43 C.F.R. §221.31. The regu-

lations specifically contemplate that a decision is not final

at least until it has been considered by the Director. 43

C.F.R. §221.10 provides:

When any party fails to appeal to the Secretary

from an adverse decision of the Director, that

decision shall as to such party be final and will

not be disturbed except for fraud or for gross

irregularity.

43 C.F.R. §221.31 further provides:

29a

Any party adversely affected may appeal to the

Secretary of the Interior from a final decision of

the Director whether such final decision is on an

appeal or is an original decision. ...

Finally, 48 C.F.R. §221.101 suspends the effectiveness of

a decision during appeal. Compare, 5 U.S.C. §704.

Clearly, the regulations in existence in 1959 required

exhaustion at least to the stage where the Director renders

a written decision. C.f, Doria Mining & Engineering Corp.

v. Morton, 608 F.2d at 1257. Donnelly’s failure to appeal

to the Director constitutes a jurisdictional defect preclud-

ing judicial review.

Even if exhaustion were not statutorily mandated, the

need for an adequate record would warrant imposition of

a judicial exhaustion requirement. Montgomery v. Rums-

field, 572 F.2d at 254.5 The present record fails to reveal

whether or not Donnelly would have received a patent had

the land been opened to entry.

As discussed above, Reeves v. Andrus, 465 F.Supp. 1065

(D. Ak. 1979) holds that the Secretary must within a rea-

sonable time after a no-injury determination revoke the

power site classification and either reopen the land or

reclassify it under his “‘other powers.” Testimony of L.T.

Main, BLM Operations Supervisor at the time, indicates

that had the classification been revoked, it is likely that

the land would have been opened to entry as Donnelly

contends. Apparently, the land was not reopened because

BLM had not yet surveyed the land.

Main also testified that there was a serious problem with

trespassers and that BLM was seeking to restore the land

in a manner that could prevent the statutory preference

>The need for an adequate record also supports a finding that ex-

haustion would be neither futile nor inefficacious. Aleknagik Natives,

Ltd. v. Andrus, 648 F.2d 496 (9th Cir. 1980).

30a

rights of the territory, state, various agencies, and vet-

erans from divesting homesteaders who had unlawfully set-

tled on withdrawn lands. In fact, Donnelly was explicitly

warned in the 1957 rejection letter that restoration of the

land would not give him a priority claim to the land.

It is impossible to tell whether Donnelly would have

received a patent had the power site classification been

revoked. Had the land been restored, Donnelly’s right to

a patent would then depend upon whether or not a pref-

erence claim was filed, and whether the BLM lawfully

prevailed in its efforts to avoid the preference claims.

Had Donnelly pursued an administrative appeal, he could

have urged his construction of 16 U.S.C. §818 on the BLM.

The agency would then have been forced to confront their

obligation to revoke the power site classification. If BLM

persisted in its refusal to revoke the classification, timely

judicial review would have ordered the revocation and

forced the BLM to determine whether or not the land

should be reclassified. If BLM chose to reopen the land,

it would then have had to confront the issue of preference

claims. The point is that pursuit of administrative remedies

would have developed an adequate record so that a re-

viewing court could determine with certainty whether or

not Donnelly would have received a patent. As the case

now stands, some sixteen years later, that cannot be done.

The significant passage of time also bars Donnelly’s use

of the APA, and his claims for relief in general, under

the equitable doctrine of laches. Preservation Coalition,

Ine. v. Pierce, 667 F.2d 851, 854 (9th Cir. 1982); Coalition

For Canyon Preservation, 632 F.2d 774, 779 (9th Cir.

1980). Donnelly was advised of his status at the latest in

1959 when he received the second rejection letter. He

waited until 1975 to assert his rights relying instead on

non-agency and non-judicial means for a solution to his

difficulty with BLM. Moreover, prejudice to Eklutna, Inc.

3la

is clear; no other suitable comparable land remains to sat-

isfy its ANCSA entitlement.

d. Estoppel:

Donnelly advances a number of arguments against the

United States alleging misfeasance. Donnelly contends that

the United States should therefore be estopped from de-

nying the validity of his homestead claim. However, the

doctrine of estoppel against the United States for actions

concerning public lands is very narrow. United States v.

California, 322 U.S. 19, 67 S.Ct. 1658, 91, L.Ed. 1889

(1947); Saulque v. United States, 663 F.2d 968 (9th Cir.

1981). The United States cannot be estopped for either

the unauthorized acts of its agents or for acts performed

in the exercise of its sovereign power. Saulque v. United

States, 663 F.2d at 973. Since Donnelly claims the acts of

malfeasance were unauthorized and since the issuance of

a patent is an exercise of sovereign power, estoppel does

not apply. Saulque v. United States, 663 F.2d at 976.

Conclusion:

For the above reasons, I find that I lack jurisdiction to

consider Donnelly’s claims against the United States and

Eklutna. Since Donnelly cannot establish a right to the

patent, he cannot challenge the issuance of the patent to

Eklutna. Kale v. United States, 489 F.2d 449, 454 (9th

Cir. 1973). Accordingly, Donnelly’s claims are dismissed

with prejudice against the United States and Eklutna. This

judgment does not affect Eklutna’s trespass action against

Donnelly.

DATED at Anchorage, Alaska, this 5th day of Novem-

ber, 1982.

/s/ James M. Fitzgerald

JAMES M. FITZGERALD,

United States District Judge

32a

Appendix C

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

BEFORE:

THE HONORABLE JAMES M. FITZGERALD, JUDGE

UNITED STATES OF AMERICA, ) Case No. A75-027 Civil

Plaintiff,

vs.

Case No. A79-336 Civil

JOSEPH F. DONNELLY,

Defendant.

i ee

JOSEPH F. DONNELLY,

Third-Party

Plaintiff,

vs.

SECRETARY OF THE INTERIOR,

DIRECTOR, BUREAU OF LAND

MANAGEMENT, AND EKLUTNA,

INC.,

we ee ee ee eee ee ee

Third-Party

Defendants.

ee

JAMES W. LEE,

Plaintiff,

Nee ee eee ee ee

vs.

33a

) Thursday,

UNITED STATES OF AMERICA, )

SECRETARY OF THE INTERIOR, )

DIRECTOR, BUREAU OF LAND ) November 13, 1986 ©

MANAGEMENT, EKLUTNA, INC., ) FINDINGS OF FACT

AND COOK INLET REGION, INC.,) AND CONCLUSIONS

) OF LAW

Defendants. )

)

REPORTED BY: JANIS G. ROLLER, C.

Thursday, November 13, 1986

PROCEEDINGS:

The Court: In United States versus Joseph Donnelly,

A75-027 civil, and James Lee versus United States, A79-

336 civil. |

From notes and memoranda, I now place of record my

ruling on the pending motion for summary judgment.

There will be either a signed memorandum or an opin-

ion, which will more fully and carefully set forth my anal-

ysis and conclusion.

What is now placed of record is to decide the issues,

because of the express concern of the court of appeals

that a decision be made as quickly as possible in the mat-

ter.

These consolidated motions require this court to analyze

_ and interpret, for the first time, I believe, Sections 14(c\1)

of the Alaska Native Claims Settlement Act, 43 U.S.C.

Section 1613(c\1\1982).

The central issue presents the following question: can

individuals assert claims based upon Section 14(c\1) to the

34a

surface estate of lands conveyed under the Alaska Native

Claims Settlement Act to Alaska Native Village Corpo-

rations when these lands have been withdrawn from entry

by the United States prior to the time that the individuals

entered and remained upon them? I conclude that they

cannot.

The factual background has been, at least in part, stated

in findings of fact in the case of United States v. Donnelly,

A75-027. The background I now relate will expand upon

that and will also relate to the Lee case, A79-336.

Donnelly and Lee staked out homestead claims during

1957 in the Eagle River Valley, adjacent to the munici-

pality of Anchorage, about fourteen miles from downtown.

They both filed notices of location with the Bureau of Land

Management that same year, and entered upon their

claims.

In 1957-58, the Bureau of Land Management notified

Donnelly and Lee by letter that significant portions of

their homestead claims had previously been withdrawn by

the federal government as part of Power Site Classification

Number 107, established June 12, 1925, and Power Site

Classification Number 399, established March 29, 1950,

and were therefore not available for private use or oc-

cupancy under the Homestead Act.

The Bureau of Land Management’s letter to Lee stated:

“Use or occupancy of the lands within the

Power Site Classification is unauthorized and any

development or use of the land will constitute

trespass against the United States Government.”

The Bureau of Land Management’s letters to both Don-

nelly and Lee indicated that they could petition the Federal

Power Commission to restore the lands they sought to

public entry, but noted that such a restoration would not

confer upon them any preference rights to the lands.

35a

When the Donnellys and Lee petitioned the Federal

Power Commission for restoration of the lands they sought

to the public entry, the Federal Power Commission notified

them by letter that it had already made a determination

in 1952, (under Section 24 of the Federal Power Act, 16

U.S.C. Section 818 (1982)), that the value of those lands

as a Power Site would suffer ‘“‘no injury” if opened to

selection, entry or location under the public land laws.

The Federal Power Commission indicated that it had no

authority to restore the lands in question to public entry;

it noted that “‘restoration [was] a function of the Bureau

of Land Management,” and directed the Donnellys and

Lee back to the Bureau of Land Management.

No restoration order was ever issued by the Bureau of

Land Management or the secretary. In 1959, the Bureau

of Land Management rejected both Donnelly’s and Lee’s

homestead entries because of their conflict with the Power

Site withdrawals. The Bureau of Land Management no-

tified both individuals by letter that although the Federal

Power Commission had made a “‘no-injury’’ determination

as to lands within the Power Site Withdrawals, none of

those unsurveyed lands had been restored to entry by the

Bureau of Land Management or the Department of the

Interior, and they therefore remained in a withdrawn sta-

tus.

The Bureau of Land Management indicated that, as a

result, any use or occupancy of the lands within the Power

Site Withdrawals would be “unauthorized’”’ and would

“constitute a trespass against the United States govern-

ment.”

During the late 1950’s and early 1960’s, Donnelly and

Lee both attempted to gain approval of their homestead

applications through negotiation with the Bureau of Land

Management and various political channels, and they re-

tained legal counsel in 1963.

36a

Throughout these years, the Bureau of Land Manage-

ment position regarding the disputed lands remained con-

sistent. As the Bureau of Land Management indicated in

correspondence with Alaska’s territorial delegate, E.L.

Bartlett, and with Senator Ernest Gruening, and with the

Donnellys and Lee, the disputed Power Site Lands re-

mained withdrawn from entry, and any settlement on those

land would constitute a trespass and not obtain any rights

for the settler.

Moreover, the Bureau of Land Management emphasized

that even if the Power Site Withdrawals were revoked,

as the Donnellys and Lee were requesting, they would not

necessarily secure rights to the lands they sought, because

the Alaska Statehood Act, Pub. L. 85-508, July 7, 1958,

72 Stat. 339, granted the state of Alaska a first preference

right of selection for any lands previously withdrawn as

part of the Power Site Reserves that were restored to

public entry. See Alaska Statehood Act Section 6(G), and,

moreover, that veterans of World War II and the Korean

War were guaranteed a right of preference otherwise not

granted to homestead applicants.

On March 15, 1961, the Bureau of Land Management

promulgated a notice that it was filing a platted survey

covering the claims. This noticed was published in the

Federal Register on March 23, 1961. See 26 Fed. Reg.

2486 (1961). The survey delineated the boundaries of Power

Site Classification Numbers 107 and 399 in relation to the

homestead sites selected by Donnelly and Lee, and was

filed in the Anchorage Bureau of Land Management Office

on April 1, 1961.

Soon after its publication, on April 27, 1961, the Bureau

of Land Management issued a final decision rejecting Lee’s

entry insofar as it conflicted with the Power Site With-

drawals.

In April 1962, the Bureau of Land Management pro-

mulated the notice that was amending the March 1961

37a

platted survey, and published that notice in the Federal

Register. See 27 Fed. Reg. 3701 (1962). Based upon the

1962 amendment, the Bureau of Land Management de-

termined that 67.5 acres of Donnelly’s 160-acre claim and

95 acres of Lee’s 160-acre claim lay outside the with-

drawals for Power Site Classifications 107 and 399.

During 1963-64, Donnelly, Lee, their legal counsel, and

several other Eagle River-Area homesteaders attended a

series of meetings with representatives of the Bureau of

Land Management to explore possible solutions regarding

the disputed lands contained within the Power Site With-

drawals.

The record states that prior to 1963, at least 23 settlers

in the Eagle River Valley had staked homestead claims in

conflict with the Power Site Withdrawals, but 18 of these

individuals had already resolved their disputes with the

Bureau »f Land Management. Because of this, the Bureau

of Land Management, apparently, took the view that the

agency was restricted in concessions it could offer to Lee

and Donnelly: Bureau of Land Management officials be-

lieved that any favorable treatment to Donnelly or Lee

would necessitate reopening the other 18 cases.

In 1964, the Bureau of Land Management sent letters

to Donnelly and Lee proposing a ‘‘compromise”’ resolution

of their disputed homestead claims, and the BLM reiter-

ated its position that the lands claimed by Donnelly and

Lee within the Power Site Withdrawals were not available

for entry and occupancy, but provided that the residence

time they had accumulated on those lands would be counted

as ‘‘constructive residence’ accomplished on the portions

of their homesteads outside of the withdrawals.

The letters further required that Donnelly and Lee sat-

isfy the cultivation requirements and place a habitable

house on the portions of their homesteads outside of the

withdrawals, but noted that if the Power Reserves were

eventually revoked, and the state of Alaska did not select

38a

the tracts under its preference right authority, the Bureau

of Land Management would accept applications from them

for contiguous parcels to their existing homestead claims.

Lee accepted the Bureau of Land Management’s pro-

posed compromise offer in 1964, and he submitted proof

that he had fulfilled the requirements for establishing a

homestead on the 95 acres he had originally staked that

lay outside of the boundary of the Power Site Withdrawals.

In November 1964, the Bureau of Land Management

issued patent to Lee for those 95 acres.

Donnelly completed the requirements for establishing a

homestead on the 67.5 acres within his claim that lay

outside the boundaries of the Power Site Withdrawal, and

in June 1965 the Bureau of Land Management issued him

a patent for that land.

The Bureau of Land Management continued to exert

control over the lands within Donnelly’s and Lee’s original

claims that lay within the Power Site Withdrawals and

granted a timber permit for those lands in 1965 to one

Raymond Roop, over Donnelly’s and Lee’s protests.

Lee and Donnelly petitioned the Bureau of Land Man-

agement to revoke the Power Site Withdrawals in 1967-

68.

In 1968, the Bureau of Land Management rejected their

petition on grounds that it was necessary to retain the

Power Site Withdrawals to leave open the possible future

development of the Eagle River area for power purposes

and to avoid placing an unnecessary additional financial

burden on future power developers, even though devel-

opment of the Eagle River area for power was not then

scheduled.

In January 1969, then-Secretary Stuart Udall issued

Public Land Order 4582, which withdrew from entry all

lands in the state of Alaska which were otherwise unre-

39a

served or would become unreserved during the course of

the order. Thus, to the extent that public lands had not

been validly withdrawn previously, Public Land Order 4582

flatly closed these lands to entry and occupancy. The lands

were withdrawn from entry, once again, by the Alaska

Native Claims Settlement Act, Section 11(aX1), 43 U.S.C.

Section 1512(aX1), enacted in 1971.

Throughout this period, both Donnelly and Lee contin-

ued to use and occupy the disputed lands. In December

1970, both individuals were served with notices of trespass

and notices to remove unauthorized structures, stating that

they had unlawfully entered upon withdrawn federal lands,

substantially altered its character by clearing and exca-

vating, and had constructed physical structures upon it.

There is some indication in the record that after they

received patent to the lands in their homestead entries

outside of the Power Site Withdrawals, one or both fam-

ilies had returned to the withdrawn lands and resumed

residence there.

The Bureau of Land Management's notices specified that

Donnelly and Lee were to vacate the disputed lands and

remove all structures by July 1, 1971.

As of August 1971, only Lee, had demonstrated any

intention of complying with the Bureau of Land Manage-

ment’s notices, and although he had begun to dismantle

his buildings, he had requested and received an extension

until September 1, 1971 to remove the remainder of the

improvements.

In contrast, Donnelly had proceeded with the construc-

tion of his house on the disputed land, and had almost

completed it by August 1971.

Although Lee did not meet his September 1971 deadline

for moving orf the withdrawn lands, a Bureau of Land

Management inspection of that property on November 2,

40a

1971 indicated that he had removed all improvements as

of that date.

Lee testified in his deposition that he had vacated the

disputed property by November 2, 1971, and that he did

not place any improvements on the disputed land after

vacating the property.

Since Lee ultimately complied with the Bureau of Land

Management’s directives, the trespass filed regarding his

case was closed on November 16, 1971.

Donnelly, on the other hand, failed to comply with the

Bureau of Land Management’s orders, and the United

States ultimately initiated the present trespass action

against him in 1975.

It is apparent, upon the face of this record, that at no

time when Donnelly and Lee settled upon the lands that

are the subject of this litigation were those lands open for

entry under the public land laws.

The lands that Donnelly and Lee originally claimed

within Power Site Classifications 107 and 399 remained

under federal control throughout most of the 1970’s. In

1974, the Native Village Corporation of Eklutna, Inc., or-

ganized, pursuant to the Alaska Native Claims Settlement

Act Section 8, 43 U.S.C. Section 1607, filed its land se-

lection application under the Alaska Native Claims Settle-

ment Act Section 12, 43 U.S.C. Section 1611.

Eklutna’s selection included these disputed lands. In

1979, the United States issued a patent for the surface

estate of these lands to Eklutna and a corresponding pat-

ent for the subsurface estate to Cook Inlet Region, Inc.,

as the Native Regional Corporation within the village of

Eklutna was included. See 43 U.S.C. Section 1613(f).

The United States initiated the present trespass action

against Donnelly in 1975, when he asserted, as a defense,

that he possessed equitable title to the disputed land and

4la

would have held patent were it not for the unlawful actions

of the secretary. He claims that the Secretary and the

Bureau of Land Management violated federal law by fail-

ing to open the power site withdrawals to homesteading

after the Federal Power Commission issued its ‘“‘no-injury”’

determination, and that the federal defendants intention-

ally misled him concerning the status of the disputed lands

and the procedures to be followed when he originally set-

tled the area and attempted to secure a title.

Donnelly also interposed counterclaims against the

United States requesting a determination upholding the

validity of his homestead claim and an order requiring the

secretary to grant him a patent.

After the United States issued its patent te the surfaced

estate of the disputed lands to Eklutna in 1979, I dismissed

the government’s trespass action, and Ekiutna came into

the action in order to protect its ownership interest in the

disputed lands.

Donnelly subsequently filed a series of claims against

Eklutna, claiming that his rights to title in the disputed

lands were preserved as against Eklutna through the

Alaska Native Claims Settlement Act Sections 14(g), 43

U.S.C. Section 1613(g), and 22(b), 43 U.S.C. Section

1621(b), as well as through the application of several com-

mon-law theories, and in addition claiming title to the

lands, relying upon the Alaska Native Claims Settlement

Act, Section 14(c\1).

I have already dismissed all Donnelly’s counterclaims

against the United States and all his claims against Ek-

lutna, with the exception of the Section 14(cX1) claim for

lack of subject-matter jurisdiction or for failure to state a

claim upon which relief can be granted.

Lee initiated an action in 1979 against the United States,

the Secretary, the Bureau of Land Management Director,

Eklutna and Cook Inlet Region, seeking to acquire patent

42a

to the disputed lands within his original homestead claim.

He asserted essentially the same claims in his action as

had Donnelly, including claims based upon common-law

theories and Sections 14(cX1), 14(g) and 22(b) of the Alaska

Native Claims Settlement Act.

I dismissed all of Lee’s claims, except for his Section

14(cX1) claim, for lack of subject-matter jurisdiction or for

failure to state a claim on which relief can be granted.

See Lee v. United States, 629 F. Supp. 721 (D. Alaska

1985).

Thus, Donnelly’s and Lee’s only remaining claims in

their actions are those based upon Section 14(cX1) of the

Alaska Native Claims Settlement Act.

Now, addressing Donnelly’s and Lee’s claims based upon

Section 14(cX1), it is necessary to resolve the single thresh-

old question: can individuals be held to have ‘“‘occupied’’

lands eventually patented to Village Corporations as of

December 18, 1971 if at all times of their use of those

lands, the lands remained withdrawn from entry by the

federal government.

Looking to the language, purposes and legislative his-

tory of the Alaska Native Claims Settlement Act, as well

as that of other public land laws which may be relevant,

I conclude that Donnelly and Lee cannot be held to have

“occupied” lands for purposes of granting Section 14(c\1)

rights if those lands had been withdrawn from public entry

by the federal government.

I further conclude that the lands at issue were validly

withdrawn as part of the power site classifications 107

and 399, and that they were never subsequently restored

to public entry under the public land laws.

Donnelly and Lee contend that under the plain language

of Section 14(cX1), all that is required for an individual to

obtain rights to village corporation lands under that pro-

vision is that the person have physically ‘‘occupied [those

43a

lands] as of December 13, 1971 ... as a primary place of

residence. or as a primary place of business, or as a sub-

sistence camp site, or as headquarters for reindeer hus- -

bandry,” regardless of the status of those lands or the

individual’s right to use or reside upon them. 43 U.S.C.

Section 1614(c\1).

Hence, Donnelly and Lee contend that physical presence

upon these lands alone is sufficient to create Section

14(cX1) rights. Under their interpretation, Section 14(c\1)

in effect serves as a sort of amnesty provision extending

rights to individuals who are merely trespassers, failed

homesteaders, or land users without any vested rights prior

to December 1, 1971.

I cannot agree that mere physical presence is sufficient

to constitute “‘occupancy” as that term is used under Sec-

tion 14(cX1). Therefore, I reject Donnelly’s and Lee’s pro-

posed interpretation of the provision.

It was well established, prior to the Alaska Native Claims

Settlement Act, that individuals could not obtain rights

under the public land laws to lands that had been with-

drawn from entry by the federal government. See United

States v. Consolidated Mines and Smelting Company, 455

F2d 432 (9th Cir. 1971); Christie v. Great Northern Rail-

way Company, 284 F. 702 (9th Cir. 1922); United States

v. Anderson, 113 F. Supp. 1, (D. Alaska 1953), Affd. 218

F.2d 780 (9th Cir.)

The interpretation of Section 14(cX1) advanced by Don-

nelly and Lee would operate to change this long-estab-

lished principle. I cannot conclude that this is what

Congress intended. In fact, when Congress has intended

to make land withdrawals from public entries for Power

Sites or other purposes available for claims based upon

the public land laws, it has felt compelled to enact pro-

visions expressly authorizing such claims. See 16 U.S.C.

Section 1634(d) “authorizing consideration of allotment ap-

dda

plications filed before December 18, 1971 for lands in-

cluded within Power Site Withdrawals under certain

conditions.”

Moreover, it seems unlikely that Congress would have

intended to reward trespassers who were physically oc-

cupying lands withdrawn from public entry in 1971, by

granting them title to lands conveyed under the Alaska

Native Claims Settlement Act, at the expense of native

village corporations. As the record indicates, about 23 set-

tlers originally claimed lands within power site classifica-

tions 107 and 399. Only a small handful continued to pursue

their claims past the early 1960’s, and even Lee abandoned

his claim when served with a notice of trespass by the

federal government.

It is inconceivable that Congress intended to reward

these trespassers, like Donnelly, who remained on the

withdrawn lands despite numerous letters, notices and vis-

its from federal officials. Such an interpretation would be

particularly unlikely in light of the principal purpose of

the Alaska Native Claims Settlement Act. It would be

peculiar for a statute intended to provide “‘a fair and just

settlement” of all native land claims to serve “the real

economic and social needs of [Alaska’s] natives’’ to trans-

form an individual’s trespass into valid title while reducing

the lands provided to a native village corporation by a

corresponding amount. 43 U.S.C. Section 1601(A)(B).

Finally, Donnelly and Lee contend that even if individ-

uals cannot obtain section 14(cX1) rights to lands that have

been withdrawn from public entry by the federal govern-

ment, they are entitled to the disputed lands because those

lands were not validly withdrawn when they initiated their

claims.

They contend: First, that the Secretary did not intend

to withdraw the lands from public entry and to create

Power Site Classifications 107 and 399; second, that the

Secretary lacked authority to do so; and, third, that even

45a

if the Secretary had such authority, he was required to

restore the lands to public entry once the Federal Power

Commission had made its “no-injury” determination in

1952.

As a result, Donnelly and Lee maintain that they both

acquired Section 14(cX1) rights when the Alaska Native

Claims Settlement became law in 1971.

I reject all of these contentions. First, Donnelly and Lee

maintain that Power Site Classifications 107 and 399 do

not constitute orders withdrawing lands from entry be-

cause they do not contain the word ‘‘withdraw’’; Donnelly

and Lee contends instead that the two orders are nothing

more than “factual determinations’ concerning the desir-

ability of the lands described for Power Site Development.

However, this contention is clearly incorrect. Both or-

ders expressly indicate that the Power Site Classifications

they create will have “‘full force and effect,” and Power

Site Classification 399 expressly guarantees that it will

protect all “valid existing rights.’’ Such language would

be unnecessary and superfluous unless the two orders ef-

fected land withdrawals and were not merely factual de-

terminations.

Moreover, the secretary and the Federal Power Com-

mission have consistently interpreted the two orders as

withdrawing lands from entry under the public land laws,

and I must defer to the administrative agency’s interpre-

tation of its own order. See Udall v. Tallman, 380 U.S.

1 (1965); Udall v. Oelschlaeger, 289 F.2d 974 (9th Cir.

1968).

Thus, Power Site Classifications 107 and 399 were

plainly intended to withdraw lands from entry under the

public land laws.

Second, the Secretary, clearly, had authority to with-

draw lands for the two power sites in 1925 and May 1850

based upon the Pickett Act, 43 U.S.C. Section 141 (re-

46a

pealed October 21, 1976 by Pub. L. 94-579, Section 704(a),

90 Stat. 2792), enacted in 1910:

“The President may, at any time in his dis-

cretion, temporarily withdraw from settlement,

location, sale, or entry any of the public lands of

the United States, including Alaska, and reserve

the same for water-power sites, irrigation, clas-

sification of lands, or other public purposes to be

specified in the orders of withdrawals, and such

withdrawals or reservations shall remain in force

until revoked by him or by an act of Congress.”

43 U.S.C. Section 141 (Secretary lacked authority, absent

a pending application, to establish a power site).

Courts have long held that the president’s authority un-

der Section 141 to withdraw public lands from entry and

reserve them as Power Sites can be exercised by the Sec-

retary of the Interior. Wilbur v. U.S. Ex Rel. Barton, 46

F.2d 217, (D.C. Cir. 1930), Affd 283 U.S. 414; Wilbur v.

U.S. Ex Rel. Pyron. 46 F.2d 224, (D.C. Cir. 1930), Affd

283 U.S. 414; Stockley v. U.S., 271 F.632, (5th Cir. 1921),

Rev'd on other grounds, 260 U.S. 532; see also Executive

Order No. 9337, “authorizing the Secretary of the Interior

to withdraw reserve lands of the public domain other lands

owned or controlled by the United States ”’ (April 24, 1943)

(superceded by Executive Order No. 10355 (May 26, 1952)).

Thus, the Secretary was expressly authorized to create

the Power Site withdrawals contested by Donnelly and

Lee

Donnelly and Lee contend that, even if the 1925 and

1950 orders validly withdrew the lands, they described

from entry, once the Federal Power Commission issued

its “‘no-injury” determination in 1952, those lands auto-

matically became open to public entry.

They argue that Section 24 of the Federal Power Act,

16 U.S.C. Section 818, expressly required the secretary to

open the lands contained within the two Power Site With-

47a

drawals to entry after the Federal Power Commission is-

sued its determination, and that, in effect, ‘what the

statute require[d] the secretary to do ‘should be regarded

as having been done.’”’ Buch v. Morton, F.2d 600, (9th

Cir. 1971).

To support this argument, Donnelly and Lee cite Reeves

v. Andrus, 465 F. Supp. 1065 (D. Alaska 1979), where a

court of this district held that once the Federal Power

Commission makes a “‘no-injury’”’ determination regarding

a particular Power Site Classification, the Secretary of the

Interior is required to modify the Power Classification and

restore the lands to public entry within a reasonable time,

unless he identifies some other basis for withdrawing them.

See Reeves v. Andrus, at 1070.

I can’t accept this contention. Although the statutory

language of Section 24 appears to indicate that the sec-

retary was required to undertake certain actions, the pro-

vision is not “self-executing’’; it explicitly “‘contemplates

action by the Secretary to terminate the [withdrawal] clas-

sification.”” Buch, 449 F.2d at 607.

In Buch v. Morton, 449 F.2d 600 (9th Cir. 1971), the

Ninth Circuit rejected an argument, similar to that raised

by Donnelly and Lee, that because the Recreation and

Public Purposes Act of 1954, 43 U.S.C. Sections 869-869-

4 (1982) required the secretary to restore lands that had

been previously withdrawn under the public land laws

within 18 months if certain conditions were not fulfilled,

courts should deem the withdrawal to be “automatically

terminated after 18 months” even if the Secretary had

failed to act. See Buch at 607.

The Ninth Circuit concluded ‘‘that if Congress had in-

tended to make the provision self-executing it could have

said so, and probably would have.’”’ As an example, it cited

the language contained in Section 4 of the Multiple Use

Act of 1964, 48 U.S.C. Section 1414 (authority terminated

on or before June 30, 1970), where Congress had “‘de-

48a

clare{d] in unambiguous terms that if land is not offered

for sale or other disposal under the act, ‘the segregative

effect shall cease at the expiration of two years from the

date of publication.’ ’’ Buch, 449 F.2d at 607.

In light of this analysis, I conclude that Section 24 of

the Federal Power Act explicitly entrusted the Secretary

with the responsibility of restoring withdrawn lands to

public entry following a no-injury determination, and did

not give this responsibility directly top the Federal Power

Commission. See 33 Op. Atty. Gen. 34 (1921) (“‘it is clear,

therefore, that the Federal Power Commission is not given

authority wholly to abolish water-power reservations made

by the President.”’)

Moreover, even the decis.:on in Reeves contemplates that

the Secretary may decide to retain lands in a withdrawn

status for some other purpose even after a “‘no-injury”

determination has been made. See Reeves, 465 F. Supp. at

1070.

The proper remedy for Donnelly and Lee, when their

entries were rejected, would have been to sue under the

Administrative Procedures Act and to require the Secre-

tary either to restore the lands to public entry or to ar-

ticulate some other basis for preserving the withdrawals.

Because Section 24 is not self-executing, the lands con-

tained in Power Cite Classifications 107 and 399 could not

have been restored to public entry without an express

order issued by the Secretary.

Moreover, as has been previously stated, had such an

order been issued, the State of Alaska would have been

entitled to the first-preference rights based upon Section

6 of the Statehood Act, and qualified veterans would have

had a superior right to other claimants, such as Donnelly

and Lee.

For all of these reasons, I conclude that the lands sought

by Donnelly and Lee in Power Site Classifications 107 and

49a

399 were validly withdrawn from public entry by the Sec-

retary in 1925 and 1950, and were never restored to entry.

I conclude that Donnelly and Lee did not ‘‘occupy’”’ the

lands at issue in these actions as that term is defined and

used in the Alaska Native Claims Settlement Act Section

14(cX1). The contested lands were all withdrawn from pub-

lic entry by 1950, prior to the time that Donnelly and Lee

settled upon them, and they were never restored to public

entry. Donnelly’s and Lee’s mere physical presence upon

these lands on or prior to December 18, 1971 was not

sufficient to obtain for them rights under Section 14(c)1).

I, therefore, dismiss Donnelly’s and Lee’s Section 14(cX1)

claims and grant summary judgment to Eklutna.

Eklutna is to order out this transcript, which will resolve

the pending summary judgment motions.

The management clerk is to immediately notify the con-

tending parties of this decision.

(End of findings of fact and conclusions of law.]

50a

Appendix D

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

Defendant.

UNITED STATES OF ) C No

)

Plaintiff, )

)

vs. )

) MEMORANDUM

JOSEPH F. DONNELLY, ) AND ORDER

)

)

)

JOSEPH F. DONNELLY,

Third-Party

—— Peet

vs.

SECRETARY OF THE INTERIOR

DIRECTOR, BUREAU OF LAND

MANAGEMENT, and EKLUTNA,

INC.,

Third-Party

Defendants.

me me me ee ee ee ee ee ee ee ee ee ee”

5la

On November 5, 1982, I issued a memorandum decision

dismissing for lack of subject-matter jurisdiction Donnelly’s

counterclaims against the United States and his third-party

claims against the federal defendants and Eklutna, Inc.

That decision was issued prior to the United States

Supreme Court’s opinion in Block v. North Dakota, 461

U.S. 273 (1983), which analyzed the scope of the federal

Quiet Title Act (QTA), 28 U.S.C. § 2409a (1982), and its

relationship to other statutes under which parties might

seek to secure patent or quiet title to federal public lands.

It also preceded my opinion in Lee v. United States, 629

F. Supp. 721 (D. Alaska 1985), which applied Block’s anal-

ysis in a factual context very similar to Donnelly’s situ-

ation.

Having reviewed the pleadings in this action, along with

the Block and Lee opinions, I hereby amend the November

5, 1982 memorandum decision adopting the analysis con-

tained in Lee! and otherwise supplementing the memoran-

‘ The November 5, 1982 memorandum indicated that Donnelly’s claims

against the United States and his claims challenging the issuance of

patent to Eklutna were dismissed ‘“‘with prejudice.” However, because

my dismissal of those claims was based upon lack of subject-matter

jurisdiction, they should have been dismissed without prejudice. See

generally Lee v. United States, 629 F. Supp. 721, 733-34 (D. Alaska

1985) (suggesting that individuals who have brought claims to acquire

patent to ANCSA-conveyance lands from the federal government and

native corporations are barred for lack of subject-matter jurisdiction

may nevertheless be entitled to bring inverse condemnation actions

against the United States in the United States Claims Court).

Moreover, the November 5, 1982 memorandum suggests that all

Donnelly’s claims against Eklutna were dismissed for lack of subject-

matter jurisdiction. In fact, that memorandum addressed only Donnel-

ly's first cause of action against Eklutna, which challenges the validity

of Eklutna’s patent to the 92.5 acres at issue in this action. This

supplemental memorandum addresses and rejects Donnelly’s third cause

of action against Eklutna, based upon the equal protection and due

process clauses of the Constitution. See infra. I have already rejected

Donnelly’s second cause of action against Eklutna, based upon section

52a

dum decision in accordance with this memorandum and

order. Based upon that analysis, Donnelly’s counterclaims

against the United States and third-party claims against

the federal defendants were properly dismissed for lack of

subject-matter jurisdiction. See id. at 726-27, 732-33 & n.11.

The United States disclaimed all interest in the 92.5 acres

at issue in this action when it conveyed that land to Ek-

lutna in 1979, see 28 U.S.C. § 2409a(d) (1982); Lee, 629

F. Supp. at 726, and even without such a disclaimer, Don-

nelly’s claims would be barred under the QTA’s twelve-

year statute of limitations, since he “‘knew or should have

known of the claim of the United States’’ to the contested

land at least by 1958, when the BLM rejected his home-

stead entry, or by 1961, when the BLM issued its survey

covering the contested land and published notice of the

survey in the Federal Register. See 28 U.S.C. § 2409a(f);

California v. Yuba Goldfields, Inc., 752 F.2d 393, 396-97

(9th Cir. 1985); Guam v. United States, 744 F.2d 699, 700-

01 (9th Cir. 1984); Lee, 629 F. Supp. at 727; McIntyre v.

United States, 568 F. Supp. 1, 4 (D. Alaska 1983).

Moreover, Donnelly’s first cause of action against Ek-

lutna, challenging the validity of the patent Eklutna re-

ceived to the contested land based upon various common-

law theories and sections 14(g) and 22(b) of the Alaska

Native Claims Settlement Act (ANCSA), 43 U.S.C. §§

1613(g), 1621(b) (1982), was also properly dismissed for

lack of subject-matter jurisdiction and for failure to state

a claim upon which relief can be granted. See id. at 728-

732. As I held in Lee, individuals like Donnelly cannot

assert claims to ANCSA-conveyance lands based upon com-

mon-law theories, since Congress intended ANCSA to “‘oc-

cupy the field’ concerning claims to those lands, and to

preempt any common-law theories or other statutory claims -

14(cX1) of the Alaska Native Claims Settlement Act (ANCSA), 43 U.S.C.

§ 1614(cX1) (1982), in an oral decision, and will issue a separate written

decision detailing my reasons for doing so.

53a

that individuals might assert. Jd. at 728-29. Furthermore,

Donnelly has failed to state a claim against Eklutna based

upon ANCSA Section 14(g), since his claim to the con-

tested land is based upon the homestead laws and not one

of the property interests enumerated in section 14(g). See

id. at 731-32. Nor has he stated a claim against Eklutna

based upon ANCSA section 22(b), since that provision es-

tablishes duties only on the part of the Secretary of the

Interior, and not on the part of native corporations.” See

id. at 732. Thus, Donnelly’s first cause of action was prop-

erly dismissed in the November 5, 1982 memorandum de-

cision.

Donnelly has alleged as his third cause of action against

Eklutna that his constitutional rights to equal protection

and due process were violated by the ‘‘unequal treatment’’

that he and Eklutna received regarding the contested 92.5

acres. In particular, Donnelly notes that his homestead

claim to the contested land was rejected because the land

had been withdrawn as part of two powersite classifica-

tions, but that ANCSA ultimately authorized the land to

be patented to Eklutna “without regard to its [withdrawn]

status.”

Donnelly’s constitutional claims are plainly without merit.

To the extent that these claims are directed against Ek-

lutna, as he has pled them, I flatly reject them, because

the equal protection and due process clauses of the fifth

and fourteenth amendments apply only to the federal gov-

ernment, states, and their agents and instrumentalities—

not to purely private entities like Eklutna. See Fidelity

? As I held in Lee, Donnelly can assert an ANCSA section 22(b) claim

only against the Secretary, and such a claim would have to be brought

under the QTA. Lee, 629 F. Supp. at 732. Since Donnelly’s claims

under the QTA are barred because the United States has disclaimed

interest in the contested lands and because of the QTA’s twelve-year

statute of limitations he has no basis to bring a section 22(b) claim

against the Secretary. Jd. at 732-33.

54a

Financial Corp. v. Federal Home Loan Bank, 792 F.2d

1432, 1435 (9th Cir. 1986); International Olympic Com-

mittee v. San Francisco Arts & Athletics, 781 F.2d 733,

736-37 (9th Cir.), amended, 789 F.2d 1319, 1320, cert.

granted, 107 S.Ct. 312 (1986); Rank v. Nimmo, 677 F.2d

692, 701-02 (9th Cir.), cert. denied, 459 U.S. 907 (1982);

Ginn v. Mathews, 533 F.2d 477, 479 (9th Cir. 1976).

To the extent that Donnelly intended to bring his equal

protection and due process claims against Congress, the

Secretary, or the BLM, rather than Eklutna, I also reject

them. In enacting ANCSA, Congress had a rational basis

for permitting native village corporations like Eklutna to

select public lands that had previously been withdrawn

from entry: it was seeking to achieve a comprehensive

resolution of the issues relating to Alaska native land

claims, and needed to make available large quantities of

public lands for selection by village corporations, prefer-

ably in the vicinity of their villages, so that Alaska natives

would consent to the extinguishment of their claims of

aboriginal title. See 43 U.S.C. §§ 1601(b), 1603, 1610(a),

1611(a)(b); H. Conf. Rep. No. 746, 92nd Cong., 1st Sess.

1, 34 (1971), reprinted in 1971 U.S. Code Cong. & Admin.

News 2192; Lee, 629 F. Supp. at 728-29. I cannot conclude

that Congress’s decision to make certain lands available

for selection by native corporations, even if they had not

previously been open to entry by homesteaders like Don-

nelly, was sufficiently unreasonable to violate Donnelly’s

equal protection and due process rights. See Lyng v. Cas-

tillo, 106 S. Ct. 2727, 2730-32 (1986); Bowen v. Owens,

106 S. Ct. 1881, 1886 (1986); Tony and Susan Alamo Foun-

dation v. Secretary of Labor, 105 S. Ct. 1958, 1964 n.32

(1985); National Railroad Passenger Corp. v. Atchison, To-

peka and Santa Fe Railway Co., 470 U.S. 451, 476-78

(1985); see also Ramstad v. Hodel, 756 F.2d 1379, 1383

(9th Cir. 1985).

Moreover, I cannot conclude that the Secretary’s and

the BLM’s rejection of Donnelly’s homestead claim to the

55a

contested 92.5 acres, on the ground that those lands had

already been withdrawn for powersite purposes when he

settled upon them, was so irrational or discriminatory as

to violate Donnelly’s equal protection or due process rights.

See Tony and Susan Alamo Foundation, 105 S. Ct. at

1964 n.32; see generally Regents of University of Michigan

v. Ewing, 106 S. Ct. 507, 514-15 & n.13 (1985). In rejecting

Donnelly’s claim during the late 1950s and up until the

enactment of ANCSA, the Secretary and the BLM were

merely applying a firmly established legal principle: that

lands withdrawn for powersite development or other pur-

poses under the Pickett Act, 43 U.S.C. § 141 (repealed

1976), are not open to entry under the public land laws,

and individuals cannot acquire any rights to those lands

by settling upon them. See Jones v. United States, 195

F.2d 707, 709 (9th Cir. 1952); United States v. Anderson,

113 F. Supp. 1, 2 (D. Alaska 1953), affd 218 F.2d 780

(9th Cir. 1955); see also Udall v. Tallman, 380 U.S. 1, 22

(1965); Akootchook v. United States Department of the In-

terior, 747 F.2d 1316, 1320 (9th Cir. 1984); Bleamaster v.

Morton, 448 F.2d 1289, 1291 & n.1 (9th Cir. 1971); Wis-

enak, Inc. v. Andrus, 471 F. Supp. 1004, 1009 (D. Alaska

1979); S. Rep. No. 2696, 84th Cong., 2d Sess.

reprinted in 1956 U.S. Code Cong. & Admin. News 4204

(noting that prior to 1956, the ‘“‘consistent administrative

interpretation” of the Alaska Native Allotment Act, 43

U.S.C. §§ 270-1—270-3 (repealed 1976), had been that in-

dividuals could select allotments ‘“‘only from vacant, un-

appropriated, and unrecorded land’’).

In continuing to reject Donnelly’s claim following ANC-

SA’s enactment in 1971, the Secretary and the BLM rea-

sonably concluded that Congress did not intend in ANCSA

to change this long-standing rule concerning the availa-

bility of withdrawn lands for settlement. Nothing in ANC-

SA’s language or legislative history suggests that Congress

intended to provide “‘amnesty”’ to individuals like Donnelly

who had settled on withdrawn lands, or to open lands to

56a

settlement by individuals that had previously been with-

drawn from entry. When Congress recently authorized in-

dividuals to apply for native allotments under the Alaska

Native Allotment Act on lands that they had used and

occupied while those lands were withdrawn for powersite

purposes, it considered it necessary to amend ANCSA and

add a provision explicitly authorizing this. See 43 U.S.C.

§ 1634(d) (1982). Yet, there is no analogous provision in

ANCSA providing lands to individuals like Donnelly who

sought to establish homesteads in powersite withdrawals.

Thus, it was logical for the Secretary and the BLM to

conclude that ANCSA did not “validate’’ Donnelly’s entry

upon previously withdrawn lands.

Moreover, ANCSA sections 1l(a) and 12, 43 U.S.C. §§

1610(a), 1611(a)-(b) (1982), provided that lands contained

in powersite withdrawals were to remain withdrawn from

appropriation under the public land laws, and were to be

available for selection by native village corporations. See

43 U.S.C. § 1610(aX1) (public lands surrounding villages

are withdrawn for purposes of village selection, except for

two categories of land expressly mentioned: “lands in the

National Park System and lands withdrawn or reserved

for national defense purposes other than Naval Petroleum

Reserve Number [ ] 4’); 43 U.S.C. § 1611(a)-(b). As a

result, the Secretary was required, based upon ANCSA’s

plain language, to patent the contested lands to Eklutna,

even though they had not been available for settlement

prior to ANCSA’s enactment. For all these reasons, the

alleged disparity in the federal! government’s treatment of

Donnelly and Eklutna vis-a-vis the contested 92.5 acres

did not constitute an equal protection or due process vi-

olation. See Ramstad, 756 F.2d at 1383.

Donnelly’s only remaining claim that has not been aa-

dressed in the November 5, 1982 memorandum decision

or this supplemental memorandum is his second cause of

action against Eklutna, in which he claims that Eklutna

is required to convey him title to the surface estate of the

57a

contested 92.5 acres based upon ANCSA section 14(c\1),

43 U.S.C. § 1613(cX1) (1982). I have already rejected this

claim in an decision, placed of record November 13, 1986.

Eklutna shall prepare, serve and file a final order, dis-

posing of all claims raised in this protracted litigation.

DATED this 5 day of December, 1986, at Anchorage,

Alaska.

/si/ JAMES M. FITZGERALD

JAMES M. FITZGERALD

United States District Judge

58a

APPENDIX E

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

AT ANCHORAGE

UNITED STATES OF AMERICA ) No. A75-027 Civil

vs.

JOSEPH F. DONNELLY,

vs.

EKLUTNA, INC.

ee ee ee

HONORABLE JAMES M. FITZGERALD,

JUDGE PRESIDING

SUBJECT: Findings

DATE: Thursday, February 5, 1981

TIME: 2:30 p.m.

PROCEEDINGS

This is in A75-27 Civil. At the outset serious jurisdic-

tional issues were raised in this litigation. I ordered the

case to trial in order that a full record might be developed

which might prove helpful in resolving the difficult juris-

dictional issues. After trial in which the parties were af-

forded an opportunity to present such evidence as might

seem to them appropriate I informed the attorneys that

I would make findings on the factual issues which were

presented and, thereafter, schedule a final argument at

which time the jurisdictional issues would be thoroughly

explored. These, then, are the findings following the evi-

dentiary hearing:

59a

Joseph F. Donnelly first came to the Territory of Alaska

under military orders. Although he had a large family he

brought his wife and children to Alaska. He and his wife

then decided to raise the family in Alaska and subsequently

formed the desire to take up a homestead.

Donnelly’s first efforts came to naught when his claim

was found to be in a mineral reservation and was rejected.

However, in the fall of 1956 he found a location which

suited him in the Eagle River valley about fourteen miles

from Anchorage. His location was then seven to eight

miles from the nearest public road.

At the Anchorage Land Office he was furnished with a

form containing instructions and listing the requirements

for filing a homestead on unsurveyed land. In keeping with

the instructions, Donnelly established the boundaries on

his claim by metes and bounds and he marked the corners.

Donnelly was also told at the Anchorage Land Office that

his location must be more than one-fourth of a mile from

Eagle River because of a Federal Power Site Classifica-

tion. After making his location, Donnelly penciled in ap-

proximate boundaries of his claim on a Bureau of Land

Management map at the Land Office. He was then directed

to the office of the cadastral engineer so that the legal

description of his claim might be established as that de-

scription should appear when the lands were surveyed.

After Donnelly obtained the legal description, his wife

prepared a Notice of Location of Settlement or Occupancy

claimed in Alaska. The claim was filed on April 22, 1957

as Anchorage Serial 034170. The legal description given

was the S 1/2 of the NE 1/4, N 1/2, SE 1/4, containing

160 acres in Sec. 25, Township 14 N, R 1 W, Seward

Meridian. According to the record of the land office in

Serial 034170 the land office requested a report from the

survey office on May 2nd on the status of the land within

Donnelly’s claim. The survey office on May 9th noted that

the land was entirely within Power Site Classification 399

60a

established March 29, 1950. In his report to the land man--

agement office, the director of the geological survey on

June 20, 1957 reported that Anchorage Serial 034170 was

apparently in conflict with Power Site Classification 107

established June 6, 1925, as well as conflicting with Power

Site Classification 399. In relevant part, the report reads

as follows:

“A portion of the above land is apparently within a

waterpower withdrawal. Power Site Classification 107,

June 6, 1925 withdrew ‘all unsurveyed lands within

one-fourth of a mile of Eagle River’ through several

townships, including T. 14 N., R. 1W. Power Site

Classification 399, March 29, 1950, withdrew ‘All un-

surveyed land adjacent to Eagle River and tributaries

at an altitude of less than 500 feet above sea level

and not reserved by Power Site Classification 107’ in

the foregoing as well as other townships. Projection

of the land net onto the Corps of Engineers Eklutna

Quadrangle indieates-that a portion of the N'/,SE'/,

Sec. 25 is very likely below the 500 foot contour

whereas it appears that the S'/,NE*/, is well above

the 500 foot contour.”

Thus, it appears that Federal Power Site Classification

107 created June 12, 1925 reserved all unsurveyed lands

within a quarter of a mile of Eagle River. Subsequently,

Federal Power Site Classification 399 of March 29, 1950

supplemented Classification 107 and reserved all unsur-

veyed lands at an altitude of 500 feet or less adjacent to

Eagle River and to its tributaries.

A request under date of January 25, 1952 from the

Regional Administrator, Region 7, Bureau of Land Man-

agement at Anchorage for determination under Section 24

of the Federal Power Act, as amended, was forwarded to

the Chairman of the Federal Power Commission through

the Chief of the Branch of Land Use and Disposal, Division

of Lands, on February 25, 1952. According to the Regional

6la

Administrator, once the Section 24 determination was

made by the Federal Power Commission, the Bureau of

Land Management proposed to classify the land as valuable

for lease or disposal under the Small Tract Act of June

1, 1938, the Public Sale Act of August 30, 1949, and other

applicable land laws. The Regional Administrator advised

that definite plans had been formulated by the Bureau for

the disposal of the land as soon as restoration was effected

in order to allow settlement.

The Federal Power Commission responded to the re-

quest of the Regional Administrator by issuing on Novem-

ber 5, 1952 a Section 24 no injury determination, subject

to the stipulation that any improvements placed on re-

served lands which should in the future interfere with

power development must be removed or relocated by the

occupant.

Following the Section 24 determination, the Assistant

Chief, Division of Land Planning, Anchorage Land Office,

then L. T. Main, sent a memorandum December 11, 1952

to the Regional Chief, Division of Land Planning, pointing

out that a no injury determination affecting Power Site

Classifications 107 and 399 had been made. The no injury

determination applied to some lands in the military reser-

vations close by Eagle River and some unsurveyed lands

upstream from the military reservations. In fact, some of

the lands were claimed by homesteaders and in order to

avoid veterans’ preference claims upon restoration, that a

“quiet” restoration order ought to be written for the lands

in conflict. At a later date a field examination might be

made and after a determination if any of the subject lands

had a higher use than for homesteads, the balance of the

land could be restored with proper publicity.

Restoration Order No. 2 was published in the Federal

Register on March 20, 1953 and affected parts of Sections

9, 10 and 16 of T15 N, R 1 W, amounting to 289.57 acres.

62a

The efforts by the Manager, Anchorage Land Office,

continued to obtain restoration of additional land within

the Power Site Classifications. The manager on October

24, 1955 wrote to the Chief, Division of Lands and Min-

erals, on the subject. In his memorandum the manager

advised that settlers had taken up surveyed sections but

the location notices were conditionally accepted for exclu-

sion of any lands which might be found to be within the

power site reserves. Since a partial plat had been pre-

pared, he suggested that restoration of the lands should

be accomplished concurrently with the filing of the plat.

There was apparently no response to the manager’s Oc-

tober 24, 1955 memorandum. So the Operations Supervi-

sor, Anchorage Land Office, on July 16, 1956 directed a

second memorandum on the same subject to the Director

of Bureau of Land Management, calling attention to the

earlier memorandum of October 24th. The director re-

sponded by a memorandum under date of July 30, 1956

stating that plats had been adjusted for both power site

classifications and suggesting that publication in the Fed-

eral Register could be started, the plats then filed and

restoration made.

The Acting Manager, Anchorage Land Office, by mem-

orandum of September 18, 1956 to the Lands and Minerals

officer requested that office to prepare a notice of res-

toration which conformed part of the land involved to the

plat of survey. The land office would prepare the notice

of the filing of the plat of survey for publication.

In this connection, the Bureau of Land Management

does not consider land ‘‘surveyed’’ for the purpose of filing

a homestead claim until the survey is officially filed.

Additional lands in Power site Classifications 107 and

399 were restored on June 24, 1957.

Virgil Seizer, then manager of the Anchorage Land Of-

fice, caused notice of the filing of the plat aggregating

63a

4,145.88 acres by the Bureau of Land Management and

the Anchorage Land Office July 30, 1957. The plat in-

volved all of Sections 9, 16, 19, 20, 21, 22 and part of

Section 15 in T14 N, R 1 W. Since the Donnelly homestead

was in Section 25 of T14 N, R 1 W, the filing of the plat

did not affect his location. Indeed, concurrently with the

filing of the plat only 360 acres of land within Power Site

Classification 107 was restored to disposal under the Public

Land Laws. An additional 80 acres within Power Site Clas-

sification 399 was restored to entry. Of the remaining land

within the plat, 360 acres was reserved for the Territory

of Alaska as a school section. And an additional 1,116.21

acres within Power Site Classifications 107 and 280 acres

within Power Site Classification 399 were withdrawn for

power purposes.

Donnelly on October 21, 1957 provided notice to the

land office that he had established a residence on his claim.

By this time a pioneer or homesteaders’ road had been

constructed by homesteaders including Donnelly, and he

was able to take a four-wheel drive vehicle to his claim.

The First building he placed on the land as a residence

was built of packing crates. He obtained water from a

nearby stream; he installed a wood stove and furnished

the cabin with Coleman lamps and candles.

On November 1, 1957 L. T. Main, then Operations Su-

pervisor, directed a memorandum to the Lands and Min-

erals Officer concerning the restoration of lands reserved

by Power Site Classifications 107 and 399. He states in

his memorandum:

‘Attached hereto is L&M field file for Federal Power

Commission lands at Eagle River. You will note that

part of the lands were restored under restoration or-

der No. 2 of March 20, 1953. In addition more lands

were restored on June 24, 1957 as per copy of order

attached.

64a

‘“‘As far as I know these are the only restorations of

power site classifications at Eagle River. However,

research may prove me wrong.

“Restoration of the balance of the lands pursuant to

determination DA-59-Alaska of November 4, 1952 has

been delayed for various reasons most of which ap-

peared justifiable at the time. However, settlement

pressures exist. There may be a small part of the

lands that are held under a classification order and

provision should be made for the proposed enlarge-

ment of the Eagle River campground, if such has not

already been accomplished.

‘Action should be taken immediately to restore all

lands still held under the subject orders, I am pre-

suming that the Territory will be anxious to acquire

the lands pursuant to the Mental Health Act.

“Mr. Griffith is now working towards restoration of

the lands south of Eagle River where our trespass

problem is growing. The Territory should want these

lands too and maybe we can make a package deal to

them.”

In the early months of 1958 Donnelly received an op-

portunity for employment outside of the Anchorage area.

Aithough he had taken up occupancy of his claim the pre-

vious October, his wife and younger children had continued

to occupy a house at 6001 Atcheson Street, Nunaka Valley.

The Donnellys’ youngest child had a serious health problem

and a physician advised that life on the homestead wasn’t

suitable for the child. Since it was necessary that residence

be maintained on the homestead, it now became possible

for Mrs. Donnelly to bring the younger children, including

the ailing child, to the homestead. IN late March she and

the remaining children moved from the Nunaka Valley

home to the claim and Donnelly left to follow up his em-

ployment opportunity.

65a

Although unknown to the Donnellys, the manager of the

Anchorage Land Office had on November 14, 1957 issued

his decision closing out the Donnelly claim. Although the

manager’s decision was sent by certified mail, with return

receipt requested, to the proper address in Nunaka Valley,

the letter was returned unclaimed to the land office fol-

lowing a second effort of delivery by the post office. The

file reflects as well that no reply was received to the

mailed first notice by the land office.

Shortly after her husband departed to work Mrs. Don-

nelly was informed by a neighbor that he had been told

at the land office that the Donnelly homestead was aban-

doned. Mrs. Donnelly promptly made an inquiry at the

land office, and she places the time as late in April or in

early May. A memorandum to the file reflects that she

was at the land office on April 25, 1958. The memorandum

noted that Mrs. Donnelly stated that she did not receive

the closing decision of the manager, and a copy of that

decision was personally now given to her.

After learning that Anchorage 034170 had been closed

out, Mrs. Donnelly inquired at the land office what could

be done. The clerk requested someone from a higher man-

agement level to see her. She was informed by that un-

known person that her only means of renewing the claim

was to fill out and submit a new application. Accordingly,

she prepared another Notice of Location of Settlement or

Occupancy in Alaska and sent it to her husband for his

. This claim was filed May 2, 1958 at the An-

chorage Land Office as Serial No. 043097. The legal de-

scription of the location remained the same as on the

original filing, but the post office address on the second

filing was given as Star Route, Mile 14, Anchorage, Alaska.

A status report in the file of Serial 043097 reflected

that the entry was placed on the Eagle River status map

November 13, 1958 and a conflict existed to approximately

130 acres of Power Site Reserve 399. The director of the

66a

geological survey reported by memorandum on December

5, 1958 to the manager of the Anchorage Land Office:

“A portion or all of this tract may be within a wa-

terpower withdrawal. Power Site Classification No.

107, June 6, 1925, withdrew unsurveyed lands within

one-quarter of a mile of the Eagle River, and Power

Site Classification No. 33 (sic 399), Mar. 29, 1950,

withdrew all unsurveyed lands at an altitude of less

than 500 feet above mean sea level exclusive of those

withdrawn by P.S.C. No. 107. Projection of land lines

on the Anchorage quad. map, Reconn. series, indicates

that a portion or all of the tract probably is within

the limits of these classifications.”

Meanwhile, Mrs. Donnelly, having learned that the Power

Site Classification conflicted with the Donnelly homestead

application, petitioned the Federal Power Commission by

letter of May 7, 1958 to restore the lands to entry under

the homestead laws. The Federal Power commission re-

sponded by letter under date of November 26, 1958 in-

forming her of the November 4, 1952 Power Commission

no injury determination allowing the Bureau of Land Man-

agement to restore the land for public entry. The relevant

part of the letter reads as follows:

“Portions of these lands were withdrawn in Power

Site Classification No. 107, approved June 12, 1925,

and in Power site Classification No. 399, dated March

29, 1950. A favorable determination was made on No-

vember 4, 1952, in the matter docketed DA-59 Alaska

by the Commission with respect to, inter alia, the

unsurveyed lands in T. 14 N., R.1 W., withdrawn as

above stated. Subsequently, the Bureau of Land Man-

agement restored to entry certain surveyed tracts

which were covered by the determination, but this

restoration did not extend to unsurveyed lands. The

restoration order was published March 26, 1953, in

67a

18 Fed.Reg. 1706, amended by notice published April

23, 1953, in 18 Fed.Reg. 2376.

“Consequently, this Commission has taken all neces-

sary action required of it in connection with the power

withdrawals. Actual restoration, presumably sus-

pended because of the unsurveyed status of the lands,

is a function of the Bureau of Land Management and

for that purpose it is suggested you again inquire at

the anchorage office.”

Mrs. Donnelly then sought help through political chan-

nels. She wrote on July 23, 1958 to then Delegate E. L.

Bartlett requesting assistance in conjunction with the Don-

nellys’ homestead claim. Delegate Bartlett made inquiry

of the Bureau of Land Management on behalf of the Don-

nellys and homesteaders James Lees. The director of the

Bureau of Land Management on August 18, 1958 re-

sponded to Delegate Bartlett’s letter:

“Dear Mr. Bartlett:

“Your letter of August 12 referred to the settlement

by the James W. Lees and the Joseph Donnellys on

a power-site reserve near Anchorage, Alaska.

“In the absence of special legislation, we know of no

way of assuring the Lees and Donnellys of continued

occupancy of the lands for homestead purposes. Any

settlement on power-site lands which have not been

opened to entry is a trespass against the United States

and no rights can be gained thereby. Revocation of

the power-site reserve would not necessarily result in

their securing rights to the land since existing law

grants to Alaska a first preference right of selection

and to veterans a secondary preference right of set-

tlement or entry upon the revocation of withdrawals.

Although we might be able to make provision in the

opening order for some reimbursement by those that

acquire the lands for improvements which cannot be

68a

removed, we could not grant the Lees and Donnellys

a preference right of entry.”

Contemporaneously with these developments, Alaska was

in the transition from territorial status to statehood. Under

the Admissions Act the new state was entitled to select

102,550,00 acres of land from the public domain which

land was required to be vacant, unappropriated and un-

reserved (Sec.6(b), Public Law 85-508, (72 Stat. 339), July

7, 1958).

Subsection 6(g) of the Statehood Act provides in rele-

vant part:

“Except as provided in Subsection (a),”—not relevant

here—“‘all lands granted in quantity to and authorized

to be selected by the State of Alaska by this Act shall

be selected in such manner as the laws of the State

may provide, and in conformity with such regulations

as the Secretary of the Interior may prescribe. All

selections shall be made in reasonably compact tracts,

taking into account the situation and potential uses

of the lands involved, and each tract selected shall

contain at least five thousand seven hundred and sixty

acres unless isolated from other tracts open to selec-

tinh. cas The authority to make selections shall never

be alienated or bargained away, in whole or in part,

by the State. Upon the revocation of any order of

withdrawal in Alaska, the order of revocation shall

provide for a period of not less than ninety days be-

fore the date on which it otherwise becomes effective,

if subsequent to the admission of Alaska into the

Union, during which period the State of Alaska shall

have a preferred right of selection, subject to the

requirements of this Act, except as against prior ex-

isting valid rights or as against equitable claims sub-

ject to allowance and confirmation.”’

So it is clear that under the Statehood Act any lands

within the power site reserves which should be restored

69a

were subjected to a first right of preference on behalf of

the State of Alaska.

Mrs. Donnelly again wrote Senator Bartlett on January

24, 1959. In her letter Mrs. Donnelly referred to a visit

she had made to the Anchorage Land Office. She had been

told there that in the event of restoration of Power Site

Classification 399 to public entry, not only would a vet-

erans’ preference apply to the restored lands but the state

would also have a preference right. She mentioned in her

letter to Senator Bartlett that additional filings for home-

steads were occurring in the land surrounding the Donnelly

location. A group of Eagle River homesteaders, including

the Donnellys, submitted a petition to Secretary of Interior

Fred Seaton on February 8, 1959. In their petition the

homesteaders related that they had been informed by the

Anchorage Land Office that they stood to lose all their

land below the 500 foot elevation because of the power

site reserve. The homesteaders complained that the land

office was offering inconsistent information and requested

the Secretary to clarify the status of their claims. The

Secretary responded to the homesteaders’ petition in a

letter written by Assistant Secretary of Interior Roger

Ernst on March 12, 1959:

“Secretary Seaton has asked us to write to you con-

cerning the petition from the homesteaders of Eagle

River Valley which you sent to us. We trust that you

will inform the other petitioners of the contents of

this letter.

“We are familiar with the Eagle River Valley situa-

tion. You no doubt know that the Bureau of Land

Management has had a cadastral engineering party in

the Valley, for the purpose of determining the 500-

foot contour line and the extent of conflicts of home-

steads with the powersite reserve and with each other.

You may also know that Senator Bartlett is interested

in this matter and that we are keeping in touch with

70a

him. 7

‘“‘We understand that some of you may have received

incorrect information as to the powersite reserve.

There has been some confusion over the fact that

although the Federal Power Commission had indicated

that it was no longer interested in the reserve, the

reserve had not been opened to entry. Any misinfor-

mation is sincerely regretted but the fact remains that

any settlement of the reserved lands cannot be rec-

ognized under existing law.

‘‘You may rest assured that we are not going to take

any arbitrary action. After the cadastral engineering

survey is completed, we are going to get a full report

on the situation. After we study that report and the

records, we will~be in a better position to determine

exactly what can be done in the circumstances.

“In the meantime, we do not intend to revoke the

powersite reserve. If we did that now, we would have

to give the State of Alaska a preference right to select

the lands and to give veterans of World War II and

the Korean Conflict a preference right of application

before we could make any other disposition of the

lands. We do not want to complicate your position

any more than it is. The Land Office Manager, of

course, cannot allow any homestead applications for

the reserved land until the reserve is revoked.

“We are hopeful that the survey and our studies can

be completed in the relatively near future.”

In the meantime, on March 2, 1959 Donnelly submitted

his final proof for patent on his claim. Then on March 5th

the Donnellys were notified by the Chief, Lands Adjudi-

cation Unit, Anchorage Land Office, Alfred P. Steger, in

a letter that they were in trespass. The letter in relevant

part reads as follows:

“The records show that the lands in question are not

subject to settlement or occupancy because they have

Tla

not been restored from Power Site Classification No.

399 of March 29, 1950. While it is true that the Fed-

eral Power Commission made a favorable determi-

nation November 4, 1952, DA-59 Alaska, none of the

unsurveyed lands have been restored to entry by the

Bureau of Land Management, and in all probability

no action will be taken to restore them until they

have been surveyed. Some of the surveyed lands in

township 14 North, Range 1 W., S.M. have been re-

stored.

‘You previously filed a homestead location notice, se-

rial number anchorage 034170, for the same lands and

were advised that they were not subject to settlement

or occupancy.

“In view of the foregoing, any use or occupancy of

these lands will constitute a trespass against the

United States Government.”

The letter concluded by advising that the Donnellys’

filing fees were being refunded by separate voucher.

So this notice presumed to close out the Donnellys’

homestead fee entry in its entirety since their filing fees

were refunded. Donnelly, however, rejected the Bureau of

Land Management’s tender of his filing fees, and on May

28, 1959 the Chief of the Land Adjudication Unit advised

Donnelly in writing that the fees had been deposited into

a suspense account pending final action ‘‘determined by

Senator Bartlett and the Interior Department” on the

claim. A handwritten note to the file was entered by Agnes

Hampton on August 1, 1960. She reported that Mrs. Don-

nelly in a visit to the Anchorage Land Office had advised

that the Donnellys remained on the claim although their

case had been closed on May 28, 1959.

The Federal Power commission gave notice to the Bu-

reau of Land Management that on April 21, 1961 an ap-

plication for preliminary permit was filed with the Federal

Power Commission for Power Project 2296 under Section

72a

24 of the Federal Power Act. The filing effectively with-

drew the lands in question.

On March 23, 1961 a Notice of filing of Plat of Survey

and Order Providing for Opening of Public Lands was

published in the Federal Register, 26 F.R., 2186. Notice

was given that effective April 1, 1961 a plat of extension

survey would be filed including all of Sections 23 and 25

of T.14 N., R.1 W., S.M. In addition, a determination was

made that Power Site Classifications 107 and 399 conform

to certain subdivisions, 40-acre minimum aliquot parts, to

such plat of survey. All but 40 acres, the SE'/,NE'/, of

Donnellys’ claim, remain within Power Site Classifications

107 and 399 and were therefore not open to entry.

Apparently from an unpublished decision of Warner May,

then manager of the Anchorage Land Office, on May 9,

1961 Donnellys’ claim had been erroneously removed from

the land office records creating the impression that the

land was open for entry.

Coner Wells had included a part of the land settled upon

by Donnelly in Wells’ homestead claim filed April 20, 1960.

But according to the unpublished decision it was not nec-

essary that the decision be published since Wells relin-

quished his claim on May 4, 1961.

On May 12, 1961 the manager in the Anchorage Land

Office sent a certified letter to Donnelly as to that part

of the Donnelly claim not within the power site reserve.

In relevant part, the letter relates:

“By letter of March 5, 1959, Mr. Donnelly was no-

tified that the S'/,NE'/,, Sec. 25, T. 14 N., R. 1W.,

S.M. was not subject to settlement or occupancy be-

cause the land was embraced in Power Site Classi-

fication 399 and his entire claim was erroneously

removed from the land office records on March 5,

73a

1959. The letter of March 5, 1959 erroneously failed

to describe the N'/,NE‘/,, and yet it too was removed

from the records.

‘Assuming the lands to be open Coner V. Wells, An-

chorage 051756, filed a notice of location covering the

SE',NE"'/,, Sec. 25 among other lands claiming set-

tlement of the lands wel! after the date of claimed

settlement by Donnelly. On May 4, 1961 Mr. Wells

relinquished his entire claim and therefore there is no

longer any conflict with the Wells’ claim. However,

on the same date an application to enter the lands in

the former Wells’ claim including the SE'/,NE‘/,,

Sec.25, was filed by M/Sgt. Forrest L. Doores, Jr.

Said application can not be acted upon at present but

will be rejected as to the SE'/,NE'/,, Sec.25 on the

basis that the records show the lands to be claimed

and occupied by Joseph F. Donnelly. M/Sgt. Doores

is being notified of this by copy of this letter. Formal

action will be taken to notify M/Sgt. Doores as soon

as the law permits, there being other actions required

to be taken by the Bureau of Land Management.

“Adjustment of the claim or that portion not within

the existing power site withdrawals is not being re-

quired at this time pending the outcome of further

investigations which may result in a more equitable

conformance than now of record or delineation of the

actual withdrawal line as originally described.

“This notice is not to be construed as granting any

rights or concessions to the withdrawn lands as de-

scribed in the original order of withdrawal, lands as

described in the original order of withdrawal, ie.,

within one quarter mile of Eagle River or below the

500 foot contour interval.

“Upon completion of the necessary investigations a

final decision with an appropriate appeal period will

74a

be issued calling for an application to enter on the

lands not withdrawn.”

Recognizing an error had been made in removing all of

Donnelly’s claim from the land records. May’s letter re-

stored for settlement that part of Donnelly’s claim outside

of the power site reserve.

On April 17, 1962, Amendment No. 1 to the March 23,

1961 Notice of Filing of Plat of Survey and Order Pro-

viding for Opening of Public Lands was filed with the-

Federal Register and published on April 18, 1962 in 27

Federal Register, 3701. This amendment vacated Para-

graphs 3 and 4 of the Notice and replaced in its stead a

description of conformation to the power site classification

based upon minimum aliquot subdivisions of 2'/, and 5

acres. This refinement resulted in a determination that

67.5 acres of Donnelly’s claim was outside of the reserves,

and the remaining amount was withdrawn pursuant to

Power Site Classifications 107 and 399 and Federal Power

Project 2296 on April 21, 1961.

According to a handwritten memorandum to the file,

Donnelly visited the Anchorage Land Office on July 26,

1962 to discuss developments. According to the memoran-

dum, Donnelly was going to protest to the Federal Power

Commission against Power Project 2296. The case tile con-

tains a letter from the Power Commission indicating on

November 26, 1958 a concurrence at that time to restore

the lands when they became surveyed. The power project

stops action to restore the lands. If Power Project 2296

is cancelled, action to restore can be taken. Donnelly’s

case, however, now needs, first, an application to enter;

second, a decision conforming the homestead and allowing

in part and rejecting in part; then handling conflicting

Serial 054395. And it appears that filing should be rejected

as to the SE'/,NE"/, of Sec. 25. First, however, the memo

suggests that Serial 043097 should be brought. into the

office concerning conformance to the survey.

75a

On February 21, 1963 the report of field examinations

of the Donnelly’s claim was filed. According to the report

Donnelly had not complied with the improvement require-

ments or the cultivation requirements, and final certificate

and patent were not recommended. In connection with the

conflict of Donnelly’s claim with the power site reserves,

the report related:

‘“‘A random line traverse was made with chain and

compass from the '/, S25/S30 brass monument to Don-

nelly’s gate and house. Another stadia roc transit

traverse was made from a known point (the section

line and road crossing) also to the house and gate

thus in effect making a closed traverse. Error of clo-

sure was about 15’.

‘“‘Donnelly’s clearings total 10 acres, plus an additional

1 acre cleared by Lee, an adjoining entryman, which

accidentally laps over onto Donnelly’s claim, thus mak-

ing a grand total of 11 acres. However, of this 11

acres, only 0.6 acres of the accidental clearing is above

or outside the withdrawn area. Donnelly’s cultivation

appears good in quality, although somewhat gravelly,

and has only a slight slope.

“The Donnelly house is located in_ the

SW'/,NE'/,NE"/,SE"/,, 2'/, acre aliquot part-well inside

the power site withdrawn area. The house is large

(20’ x 30’ approximately), and substantial although of

poor appearance. It is one story and flat-roofed with

a concrete floor and is, or was, intended to be the

daylight basement for a multi-story house. By reason

of its type of construction it is unmovable except by

dismantling. At the present time, the improvements

are being occupied as a home by the Donnelly family.

**Conclusions

“Disregarding the conformance question, Donnelly ap-

pears to have amply complied with the intent of the

homestead law.

76a

“Basically little if any, of the land in the area of the

PSC 107, 399 and Power Project 2296 conformance

is truly suitable for agriculture in the modern sense

because of thin, and/or, rocky, and gravelly soils, and

steepness of slope. The south side of the valley is

even less suitable than the north side.”

Donnelly notified the land office on June 5, 1963 that

he had retained attorney Charles Tulin to represent him.

According to minutes prepared July 22, 1963, the man-

ager, Anchorage Land Office, held a meeting with Charles

Tulin representing several homesteaders affected by the

power site withdrawals at Eagle River. In connection with

the Donnelly claim, Land Manager, Warner May, reported:

‘Mr. Donnelly has a 160 acre claim of which all but

67'/, acres is within the Power Site Classification. All

improvements are within the area not available. The

house is located almost in the center of a 10 acre

tract which must be described as two separate 5 acre

aliquot parts as follows:

“T, 14 N., R. 1 W..S.M.

“Section 25: W /,.NE /,NE /,SE /, 5 acres

1

E/,NW/,NE/,SE/, 5 acres

“The above area contains 1.0 acre of cultivation. The

dwelling is located at an elevation of approximately

412 feet. (It should be noted that disregarding the

Power Site Classification, Mr. Donnelly has met the

requirements of the Homestead Act.) (See illustrations

5 and 6).

‘Mr. Donnelly has a number of arguments which all

tend to cloud the issue. He argues something about

being told by Land Office personnel that he could not

locate on both sides of the Seward Meridian and was

therefore forced to locate as he did. He argues that

he is beyond one-quarter mile of Eagle River and

77a

therefore not within Power site Classification 107.

(This may be true but he is below 500 foot in elevation

which lands are covered by Power site Classification

399 dated March 29, 1950.) As the others did, he

argues that he cannot move his house and that he

has certain equities that should be recognized. The

conformance as it passed through the Charles J.

Schroeder entry. Anchorage 040370, was also men-

tioned.”

The chief, Lands Adjudication Unit, Alfred P. Steger

met with the Donnellys on September 30, 1963. His mem-

orandum in the file reflects that they were advised—‘“‘they”’

meaning the Donnellys—to file application to enter and

homestead 2nd application forms. Also, they were told a

legal question exists on moving house and cultivation to

open hand after 5 year life of claim expired. (They have

not yet placed house and cultivation on the Land outside

the reserve.) They were told in the next few days we would

advise them if we could allow it or if we must sendjdraft

adverse decision and case to Washington for determination

under adverse procedures. (He seems willing to put cul-

tivation and cabin outside reserve—but can’t move present

10-room house.)

On October 3, 1963 a note is added:

“‘We must now write Donnelly as to opportunity to

move house and cult, outside reserve.”’—initialed APS

for Alfred P. Steger.

Donnellys once again sought political help from Senator

Gruening who promptly intervened on September 27, 1963,

requesting no adverse action be taken against Donnelly’s

claim pending review by the Senator. The State Director

of the Bureau of Land Management, Roger Robinson, ac-

quiesced to Senator Gruening’s request by telegram of

October 3, 1963:

78a

“RE HOMESTEAD ANCHORAGE 043097, JOSEPH

P. DONNELLY, EAGLE RIVER, HAS OPPORTU-

NITY TO PLACE A HOUSE AND ONE-EIGHTH

CULTIVATION UPON 67.5 ACRE PORTION OF

HOMESTEAD OUTSIDE POWER SITE RESERVE.

IF HE CHOOSES TO DO SO AND HOUSE AND

CULTIVATION ARE FOUND ACCEPTABLE, HE

WILL CONSTRUCTIVELY MEET REQUIRE-

MENTS FOR THE AVAILABLE 67.5 ACRES AND

ADVERSE ACTION AS TO THAT PORTION WILL

NOT BE NECESSARY. THE IMPROVEMENTS ON

THE 92.5 ACRE PART OF HOMESTEAD LYING

IN POWER SITE RESERVE ARE IN TRESPASS

AND FAVORABLE ACTION ON THAT PART IS

NOT POSSIBLE. IF HE CHOOSES TO PURSUE

CLAIM TO ALL OF HOMESTEAD AS IT NOW

STANDS WITH ALL IMPROVEMENTS INSIDE

RESERVE, AN ADVERSE DECISION ON ENTIRE

+ CLAIM WILL BE NECESSARY. IF HE RELIN-

QUISHED ALL PRESENT CLAIM IT APPEARS

SECOND ENTRY ON 67.5 AVAILABLE LAND

COULD BE FAVORABLY CONSIDERED. MR.

DONNELLY HAS BEEN CONTACTED AND AD-

VERSE DECISION IS SUSPENDED TEMPORAR-

ILY PENDING HIS PRESENT CHOICE OF

ACTION.”

On October 4, 1963 Senator Gruening wrote to the Don-

nellys:

“With reference to your request for assistance in es-

tablishing your homestead claim, I have been in-

formed, by telegram, from the State Director of the

Bureau of Land Management that it is possible for

you to obtain patent to 67.5 acres of the land included

in your claim, this being the portion outside the power

site reserve. I know you are very much disappointed

in not being able to establish a claim to the entire

79a

acreage on which you have filed; however, it appears

there is no possibility of obtaining patent on the part

of the land still within the power reserve.

“T have been continually pressing the Federal Power

Commission and the Department of Interior (which

have joint responsibilities in this area) to release the

power site classifications which hdve caused you and

others so much difficulty in establishing homestead

claims. I hope it will be possible, eventually, to obtain

satisfactory action on this and accomplish the opening

of this land to settlement.”’

In accordance with the requirements that have been

made clear to him, Donnelly on October 1, 1963 filed a

new homestead application for his location. This, of course,

had been required by the Bureau of Land Management

since it had been contended that the location which Don-

nelly had applied for was partially within the power re-

serve. By certified mail of June 11, 1964, Chief of the

Lands Section, Steger, notified Donnelly that part of the

location claimed by him was open for settlement. This was

followed up by meetings between Donnelly, accompanied

by his attorney, Tulin, and Steger, and a confirming letter

was sent by the land office July 29, 1964. In the letter

Steger suggested the possibility of a later contiguous claim

to the disallowed part of Donnelly’s claim contingent upon

future developments. In relevant part the letter reads:

“This is to confirm our statements that we are able

to count the residence time completed on your home-

stead as “constructive residence’, and it is counted

as though having been accomplished on that portion

of your homestead outside the reserves. ‘‘However,

since the homestead regulations require that cultiva-

tion and a habitable house actually exist on a home-

stead being carried to patent, it is necessary for our

office to require that one-eighth of the acreage of your

claim outside the reserves be placed under cultivation

80a

and that a habitable house be placed upon that por-

tion. ‘““To meet the house requirement, either the house

in the reserve could be moved to the available land

in your claim, or a new habitable structure could be

placed thereon.

“As soon as this is done, your notarized statement

and the notarized statements of two witnesses to this

effect should be filed in cur office to supplement your

previously filed final proof.* * * * As to that part

of your claim inside the power reserves, you are aware

that the City of Anchorage applied for and was

granted a license by the Federal Power Commission

under Power Project No. 2405. In addition, the Power

Site Classifications 107 and 399 have not been entirely

lifted. If the City proceeds with the power project we

will not be able, of course, to acknowledge or allow

any claims in the reserve area.

“However, as we indicated in our previous meetings

with you, if for any reason the City’s project is re-

linquished or is cancelled by the Federal Power Com-

mission and the power reserves are revoked, and

further, if the State does not select the tracts under

its preference right authority, we will accept a home-

stead contiguous additional application from you for

that part of your claim formerly in the reserve and

immediately adjoining your original entry.

“Mr. Tulin has conferred with Mr. Joe Keenan, Lands

Officer, State Division of Lands, and the State indi-

cates that if the Eagle River reserves are opened to

entry, it will not select those portions containing im-

provements inadvertently placed in the reserve. The

State will undoubtedly waive its 90 day preference

right to select, and your application could be filed.”

Donnelly completed the Bureau of Land Management

requirements for patent to the 67.5 acres, and on June

25, 1965 finally received a patent from the United States

8la

to that land. Donnelly continued his efforts to obtain a

revocation of power site classifications. His position was

that since the Section 24 determination by the Federal

Power commission the land should have been restored by

the Bureau of Land Management. The reasons that the

land was not restored are not precisely known although

the Anchorage Land Office from time to time pressed for

restoration of the entire area of the power site classifi-

cations. L. T. Main who was Land Manager during part

of this period and was familiar with the problem was of

the opinion that partial restorations may have resulted

from the Anchorage Land Office request. He gave several

reasons why the restoration may not have been accom-

plished. Trespass may have caused difficulties. Addition-

ally, a survey was believed necessary to determine that

part of the lands within the townsites affected by the

power site classifications to determine the boundaries and

the extent of the reserves. In addition, it might have been

believed necessary to classify the lands for a possibility of

inclusion in small tracts. Finally, the survey was difficult

to obtain since the Bureau of Land Management had other

priorities for which surveys were required.

Donnelly, however, continued his efforts to obtain a re-

vocation of the power site classifications. His request was

denied and a formal decision was entered by the State

Land Office on May 13, 1968 rejecting his application.

According to the decision:

“On July, 1967, Joseph F. Donnelly filed a request

that Power Site Classification No. 107 of June 12,

1925 and Power Site Classification No.'399 of March

29, 1950 be revoked insofar as they affect lands in

Section 25, T. 14 N., R. 1 W., S.M. ‘“‘The applicant

has a patented original homestead adjoining the re-

served land, and he desires to apply for a continguous

additional homestead entry in the event the power

site reserves were revoked and providing that the

State of Alaska did not select the land.

82a

‘In addition to the two power site classifications men-

tioned above, the land involved is also withdrawn by

Power Project No. 2405 of September 3, 1963, which

resulted from an application by the city of Anchorage

for a preliminary permit for a proposed Eagle River

project.

“In reply to an application filed with the Federal

Power Commission by C.J. McIntyre of Eagle River

for elimination of lands in the same area from the

power site withdrawals and project, the Commission,

on April 17, 1968, issued an Order Denying Appli-

cation Under Section 24 of the Federal Power Act,

Docket No. DA-89 Alaska.

“In its order, the Commission stated that although

the preliminary permit issued to the city of Anchorage

for Power Project No. 2405 expired on April 30, 1967,

and no application for license has been filed, the

Greater Anchorage Area Borough had objected to any

elimination or modification of the existing withdrawal.

The Borough states that the overall planning for the

future of the Anchorage area would depend consid-

erably on use of the Eagle River watershed for ad-

ditional hydroelectric energy, for a domestic water

supply source, and for recreational needs.

“The Commission concluded that although develop-

ment of the Eagle River project is not presently

scheduled, such development is being considered, and

the power value of the lands lies in their possible use

for flowage as once proposed in Power Project No.

2405. Further, the Commission held that revocation

of the power withdrawals or restoration of the lands

to entry, location, or selection subject to the provi-

sions of Section 24 of the Federal Power Act would

place an unnecessary additional financial burden on a

future power developer, and the withdrawals on Eagle

83a

River in this area should not be vacated or cancelled.

“Since the findings of the Federal Power Commission

indicate a continuing need for Power Site Classifi-

cations 107 and 399 and Power Project No. 2405, with

the possible future development of this Eagle River

area for power purposes, Mr. Donnelly’s petition for

revocation of the subject withdrawals is hereby de-

nied.”

Donnelly appealed the decision of the Chief Lands Ad-

judicator to the Chief, Branch of Land Appeals, Office of

Appeals and Hearings, Washington, D.C. On July 31, 1968

the decision was affirmed.

Finally, Donnelly’s appeal to the Secretary of Interior

was dismissed September 26, 1968 for want of timely fil-

ing.

This completed the administrative review. Since no fur-

ther action was taken, Donnelly was served with a Notice

of Trespass on December 22, 1970. The trespass alleged

that he had unlawfully entered upon withdrawn Federal

land, substantially altered the character of the land by

clearing, excavating and constructing physical structures

thereon.

The Alaska Native Land Settlement Claim was enacted

December 18, 1971 as Public Law 92-203 (85 Stat. 688).

In addition to a grant of $962,500,000 compensation for

extinguishment of native aboriginal title, 40,000,000 acres

of land was set aside for native regional and village cor-

porations. Section 11 (a) (1) provides in relevant part:

“The following public lands are withdrawn, subject to

valid existing rights, from all forms of appropriation

under the public land laws, including the mining and

mineral leasing laws, and from selection under the

Alaska Statehood Act, as amended:

‘“(A) The lands in each township that encloses all or ~

part of any Native village identified pursuant to sub-

section (b);

84a

(B) The lands in each township that is contiguous to

or corners on the township that encloses all or part

of such Native village; and

(C) The lands in each township that is contiguous to

or corners on a township containing lands withdrawn

by paragraph (B) of this subsection.”

And Subsection 11 (b) (1) included among the Native

villages subject to this Act Eklutna, Cook Inlet. Eklutna

had filed a claim of aboriginal title for the entire Eagle

River Valley with the Indians Claim Commission in 1953.

This claim was extinguished by the Settlement Act. Ear-

lier, all of the lands in the Eagle River Valley which are

relevant to this litigation had been part of the Eklutna

reserve and established under the Indian Reorganization

Act. The reserve established in 1936 extended up the Ea-

gle River and up the Knik River, and the line was drawn

across the top of the mountain ridges to establish the

boundaries of the reserve. The reserve included 326,000

acres. In 1912, as World War II began, the reserve was

cut down when the militaryjreservations were established

at Fort Richardson. Eklutna’s entitlement under the Set-

tlement Act amounted to 232,000. However, the Village

will be unable to select sufficient lands but must select

into the contingency lands established under the Settle-

ment Act. It is unlikely that even if the contingency lands

are selected, there will be sufficient lands available for

Eklutna to satisfy its entitlement.. Indeed, according to

the testimony of Daniel Alex, the Eklutna’s land manager,

it is probable that in order to satisfy its entitlement, Ek-

lutna would have to select lands above timberline and on

the glaciers. Although Eklutna contends that a means ex-

ists for resolution of Donnelly’s claim under the provisions

of Section 14 (c) (1) of the Settlement Act, which provides

in relevant part that “the Village Corporation shall first

convey to any Native or non-Native occupant; without con-

sideration, title to the surface estate in the tract occupied

85a

as a primary place of residence...’ Donnelly has made

no application.

In short, the present status of Donnelly’s claim to the

92.5 acres which he sought in the power reserve is that

at no time was the land opened for entry under the Public

Land Laws when he made application. Eklutna now claims

the land as part of its entitlement under the Alaska Native

Lands Settlement Act, and the United States claims to

have no further interest in the matter.

The parties may request in writing additional findings

within ten days after obtaining a transcript of these find-

ings.

(END OF FINDINGS)

86a

UNITED STATES OF AMERICA )

)

STATE OF ALASKA )

I, Bonnie M. Adams, Official Court Reporter for the

hereinabove-entitled Court, do hereby certify:

That as such Court Reporter, I reported the aforemen-

tioned Findings in Cause No. A75-027 Civil;

That I reported said proceedings in Stenograph machine

shorthand and thereafter the same was reduced to type-

writing by me:

That the foregoing pages numbered 1 through 39 con-

tain a full, true and correct transcript of all the proceed-

ings reported on February 5, 1981.

/s/ Bonnie M. Adams

/s) BONNIE M. ADAMS

87a

Appendix F

IN REPLY

REFER TO:

ALO:L8

MAY 12, 1961

UNITED STATES

DEPARTMENT OF THE INTERIOR

BUREAU OF LAND MANAGEMENT

Land Office

Cordova Building

6th and Cordova

Anchorage, Alaska

Certified Mail

Return Receipt Requested

NOTICE

Joseph F. Donnelly : Anchorage 043097

Star Route, Mile 14 : Homestead 1.1

Anchorage, Alaska :

Settlement Claim Accepted as to Lands Not

Within Power Site Classifications 107 and 399

and Declared Null and Void as to Remainder

On May 2, 1958, Mr. Joseph F. Donnelly filed a location

notice for the S',NE'/,, NY.SE"/,, Sec. 25, T. 14 N., R.

1 W., S.M., claiming settlement of ‘the lands on-April’21,

1957. ee oe

___ By letter of March 5, 1959, Mr. Donnelly was notified that

the S',NEY,, Sec. 25, T. 14 N., R. 1 W., S.M: was not

subject to settlement or occupancy because the land was

embraced in Power Site Classification 399 and his entire

claim was erroneously removed from the land office rec-

ords on March 5, 1959. The letter of March 5, 1959 er-

roneously failed to describe the N'/,SE'/,, and yet it too

was removed from the records.

88a

Assuming the lands to be open Coner V. Wells, Anchorage

051756, filed a notice of location covering the

SE'/,NE'/,, Sec. 25 among other lands claiming settlement

of the lands well after the date of claimed settlement by

Donnelly. On May 4, 1961 Mr. Wells relinquished his entire

claim and therefore there is no longer any conflict with

the Wells’ claim. However, on the same date an application

to enter the lands in the former Wells’ claim including the

Se'/,NE'/,, Sec. 25, was filed by M/Sgt. Forrest L. Doores,

Jr. Said application can not be acted upon at present but

will be rejected as to the SE'/,NE'/,, Sec. 25 on the basis

that the records show the lands to be claimed and occupied

by Joseph F. Donnelly. M/Sgt. Doores is being notified of

this by copy of this letter. Formal action will be taken to

notify M/Sgt. Doores as soon as the law permits, there

being other actions required to be taken by the Bureau

of Land Management.

Adjustment of the claim or that portion not within the

existing power site withdrawals is not being required at

this time pending the outcome of further investigations

which may result in a more equitable conformance than

now of record or delineation of the actual withdrawal line

___as originally described.

This notice is not to be construed as granting any rights

or concessions to the withdrawn lands as described in the

original order of withdrawal, ie., within one quarter mile

of Eagle River or below the 500 foot contour interval.

Upon completion of the necessary investigations a final

decision with an appropriate appeal period will be issued

calling for an application to enter on the lands not with-

drawn.

/s/Warner T. May

Warner T. May

Manager

Copy to :

89a

M/Sgt. Forrest L. Doores, Jr.

5040th Transportation Squadron

Box 3406

Elmendorf AFB, Alaska

Enclosures:

Township Plat

Status Plat

90a

Appendix G

IN REPLY

REFER TO:

ALO:L3

Anch. 043097

Homestead 1.1

UNITED STATES

DEPARTMENT OF THE INTERIOR

BUREAU OF LAND MANAGEMENT

Land Office

Cordova Building

555 Cordova Street

Anchorage, Alaska

Mr. Joseph F. Donnelly June 20, 1963

Mile 14, Glenn Highway, Star Route

Anchorage, Alaska

Dear Mr. Donnelly:

We have been processing the homestead filings in the

Eagle River Valley Area, and a solution has been attained

on most of them.

Your case, identified above, has now been reached for

adjudication, however, before taking final action we would

like to have the opportunity of discussing the possibilities

of a workable solution with you.

Please call the office and let us know when, and if, it

would be convenient for you to come in.

We understand that Charles E. Tulin, Attorney-at-Law, is

representing you in this matter. If our understanding is

correct, please submit a statement to this effect.

Sincerely yours,

/s/Alfred P. Steger

Alfred P. Steger

Chief, Lands Section

9la

Appendix H

IN REPLY

REFER TO:

ALO:L7

Anch. 043097

HE 1.1

UNITED STATES

DEPARTMENT OF THE INTERIOR

BUREAU OF LAND MANAGEMENT

Anchorage District Office

Federal Building

Fourth and G Streets

Anchorage, Alaska 99051

Jun 11, 1964

CERTIFIED MAIL - RETURN RECEIPT REQUESTED

Mr. Joseph F. Donnelly

Star Route Mile 6.3

Eagle River Road

Eagle River, Alaska

Dear Mr. Donnelly:

This is to advise you the following described land of your

Homestead Claim, Anchorage 043097, are available for set-

tlement:

SE /,NE /,, NE /,SW /,NE /,,

N,NW,SWY,NEY, SE/,NW*/,SW'/,NE",, .

N'/,SE/,SW'/,NE",, SE'/,SE/,SW'/,NEY,,

NE'/,NE'/,NE"/,SE"/,, Section 25, T. 14 N., R. 1

W., S.M., containing 67.5 acres.

The lands claimed by you described as the NW /,SE /,,

W'/,.NE'/,SE,, SE/,NE/,SE'/,, W'/,.NE'/,NE'/,S

This text is long and has been trimmed here. Open the source document for the complete record.