# Appendix — Donnelly v. Eklutna, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_0196%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1989 - **Citation:** 488 U.S. 1046 ## Text 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. [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_0196%3A2. Public record. Not legal advice.