Petition for Writ of Certiorari — City of Angoon v. Hodel

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8 G. 162 yd | * Supreme Caurt, U.S.

$$ Lb. D

_ } APR 10 1987

Supreme Court of the United ‘ tates, F. SPANIOL, JR

OCTOBER TERM, 1986

CITY OF ANGOON, et al,

Petitioners,

Vv.

DONALD HODEL, SECRETARY OF THE INTERIOR,

et al., SHEE ATIKA, INC., and

SEALASKA, CorpP.,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DuRWoOoD J. ZAELKE, JR.*

Sierra Club Legal

Defense Fund, Inc.

1516 P Street, N.W.

Washington, D.C. 20005

(202) 667-4500

FREDERICK P. FURTH

JEFFREY A. GLICK

Furth, Fahrner, Bluemle

& Mason

201 Sansome Street

San Francisco, Cal. 94104

(415) 433-2070

Counsel for Petitioners

Of Counsel:

GAVIN S. APPLEBY

Lipsy C. BLACK

Paul, Hastings,

Janofsky & Walker

133 Peachtree Street, N.E.

Atlanta, Ga. 30303

(404) 588-9900

* Counsel of Record

QUESTIONS PRESENTED

1. Whether the United States has relinquished title to the

navigational servitude within the three-mile limit of Alaska’s

coastal waters, so that it need not comply with the procedural

protection provided subsistence resources in § 810(a) of

the Alaska National Interest Lands Conservation Act

(“ANILCA”), 16 U.S.C.A. § 3120(a).

2. Whether the Ninth Circuit’s holding that the prohibi-

tion against harvesting timber “within the Monument” in

ANILCA § 503(d) does not apply to a private inholding

located “within the boundaries of the Admiralty Island Na-

tional Monument,” conflicts with this Court’s construction of

the analogous geographic term “in Alaska” in ANILCA § 102

in Amoco Production Co. v. Gambell, No. 85-1239 (U.S. March

24, 1987).

3. Whether the Ninth Circuit erred in entering summary

judgment sua sponte against Petitioners, without providing

them an opportunity in either the district court or the court of

appeals to conduct discovery or demonstrate that there were

disputed issues of material fact, contrary to this Court’s holding

in Fountain v. Filson, 336 U.S. 681 (1949).

‘i

PARTIES TO THE PROCEEDINGS

Petitioners and plaintiffs-appellants below are: The City of

Angoon, a traditional Tlingit Native village, located within the

Admiralty Island National Monument and Wilderness in

Southeast Alaska; the Angoon Community Association, the

tribal government for the village; 287 individual residents of

Angoon; and the Sierra Club and The Wilderness Society, both

national conservation organizations. *

* In an appeal to the Ninth Circuit of a preliminary injunction entered in

this same case, City of Angoon v. Marsh, 749 F.2d 1413 (9th Cir. 1985), the

following parties appeared as amici in support of Petitioners:

National Indian Youth Council

Indian Law Resource Center

Menominee Indian Tribe of Wisconsin

Congressman Michael Lowry (D. Wash.)

National Audubon Society

Natural Resources Defense Council

Southeast Alaska Conservation Council

Legal Environmental Assistance Foundation

TABLE OF CONTENTS

Page

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PARTIES TO THE PROCEEDING. ...................cseeeeeeees il

I HI IIE BEEID ccccccccescccescsccescvncececcccossessooees Vv

nicest sactinensnensnnssibacsouesconse l

ica cinnncracescuslintberstenatreseovencceteesecs 2

EEE W IEED cccrapccccccuvescecsessscenssccosessccscossnoees 2

eT BENS CAE cooncnccccccccscssccncssceccevseccsessees 3

EEE EET SE AO TER 3

Fe EE ls csscsnscanssbetssscesboveseccocsoocessscesees 4

REASONS FOR GRANTING THE WRIT..................... 7

1. The Decision Below Relinquishes the United

States’ Title to the Navigational Servitude in the

Coastal Waters of Alaska, so that the Waters Do

Not Qualify for Subsistence Protection Under

§ 810 of ANILCA, and Is in Conflict with the

Reasoning of this Court in Gambell, United

States v. California, and Cherokee Nation........... 7

A. Whether the United States Has Relin-

quished Title to the Navigational Servi-

tude Is an Important Issue........................00+ 9

B. The Holding and Reasoning of the Deci-

Lea a salttinesccetiindwcesveveees 9

C. The Decision Below Conflicts with the

Reasoning of Garmbell................ccccsscecceeeeeees 11

D. The Decision Below Conflicts with the_

Reasoning of United States v. California

and with Congressional Intent Under the

Submerged Lands Act .................cssssssceseeee 12

E. The Decision Below Conflicts with the

Reasoning of Cherokee Nation and Other

Decisions that Strictly Guard the United

States’ Fullest Rights in and Powers over

the Navigational Servitude........................... 15

2. The Decision Below Construing the Precise

Geographic Designation “Within the Monu-

ment” as Not Having Its “Plain Meaning”—

“Within the Boundaries of the Monument’”—

Conflicts with the Reasoning of this Court in

—" and the Eighth Circuit in Minnesota v.

TABLE OF CONTENTS—Continued

3. The Decision Below Directing Entry of Sum-

mary Judgment, Sua Sponte, Against Petitioners

Who Had No Opportunity Before Either the

District Court or the Court of Appeals to Con-

duct Discovery or to Demonstrate That There

Were Disputed Issues of Material Fact, Conflicts

with Fountain v. Filson and Other Decisions of

OE GE wisetstnrcncnsnapncintiininsicnitinnliiinayapiiiamninniineti

A. The Decision Below Raises Serious Impli-

cations for the Use of Summary Judgment

and Calls for an Exercise of this Court’s

Power Of Supervision ...............ssscccssecceseeeeees

B. The Decision Below Conflicts with this

Court’s Holding in Fountain v. Filson..........

C. The Decision Below Conflicts with

Traditional Principles of Summary Judg-

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Ge cccieainsnctarsanecnenncesannnnegyenaitiiivnnssammanuiotnonve

APPENDICES

Appendix A —Decision of the United States Court of

Appeals for the Ninth Circuit, dated

Ne iy: SIE hicnscenatctiineeletncittoninnicsonsinne

Appendix B —Judgment, filed and entered October 31,

Coe iesliiivinsecsastiuiiiedhcnasciipisadsnataiininsiibalibaniiineanninen

Appendix C —Order of the Court (denying rehearing),

dated December 1, 1986...............scccccceeseee

Appendix D —Memorandum and Order on Remaining

Issues Raised in Consolidated Com-

plaint, dated November 26, 1986.............

Appendix E —Memorandum and Order on Subsistence

and Trust Responsibility Issues, dated

RE eis SIE tescenssietiasnnccntnniigeetventonnnines

Appendix F —Partial Final Judgment, dated December

5 AS. SORENESS aE rT NONE TED

Pa Se iictnictdicitiieinnnnicestntninininciaiinnisaain

Page

TABLE OF AUTHORITIES

CASES

Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970).......

Amoco Production Co. v. Gambell, No. 85-1239 (U.S.

I ae PED sceiiisiicennssisernienibipnnianesianiteniaiibbaaniaiabtielantasica

Anderson v. Liberty Lobby, Inc., 106 S.Ct. 2505

EI icvicscssienisstbepittichsestcieeptiniicininncasiietinicineaoaasieniieebicteiiies

Bishop v. Wood, 426 U.S. 341 (1976) oun... ceseseesseeee

Carlin Communication v. Southern Bell, 802 F.2d

Se ID satiinncqntinsnseinenicicenmnannnnetiniane

Celotex Corporation v. Catrett, 106 S.Ct.

SE CE ich carcinnthimennitiinninigrnennninn

Citizens for Balanced Environment and Trans-

portation, Inc. v. Volpe, 650 F.2d 455 -(2nd Cir.

ITE i scichdieasnsicstiitigeiniaeiieentiahiatpernnanainiatinnnininiddieninnnnens

Commonwealth of Massachusetts v. Andrus, 594 F.2d

Ee es SE trciddnicnesintntntnerntinaiiieteiineiiiine

DeMarco vy. United States, 415 U.S. 449 (1974) .........

Druid Hills Civic Association v. Federal Highway

Administration, 772 F.2d 700 (11th Cir. 1985) .......

Fountain v. Filson, 336 U.S. 681 (1949) ....... ee

Gilman v. Philadelphia, 3 Wall 713 (1865) .................

Hammond v. Schappi Bus Line, 275 U.S. 164 (1927).

Hormel v. Helvering, 312 U.S. 552 (1941) ...............000

Indiana Port Commission v. Bethlehem Steel Corpo-

ration, 702 F.2d 107 (7th Cir. 1983) .00....... ee eeeeseeeee

Izaak Walton League of America v. Marsh, 655 F.2d

ne Ce Se Ie itt enccietenstistntiesesbanaidiniigaaieneniione

Lathan v. Brinegar, 506 F.2d 677, 692-93 (9th Cir.

Pe ee AIEEE sine tcnisinnsntatneianudsinnantiasiesananebusiininitiintaniiiies

— v. TRW, Inc., 760 F.2d 1254 (Fed. Cir.

en RAN, ARE IE: Ce

Matsushita Electric Industrial Co., Ltd. v. Zenith

Radio Corporation, 106 S.Ct. 1348 (1986) ..............

Page

7,8,11,12,

13,14,17,18

21,22,24,25

21,24

19,20,21,

23,24

21,24

21,23,24

Moses H. Cone Memorial Hospital v. Mercury Con-

struction Corp., 460 U.S. 1 (1982 ).......scccscesseeeeeeeees

Northwest Indian Cemetary Protective Association v.

Peterson, 795 F.2d 688 (9th Cir. 1986)............020000

Poller v. Columbia Broadcasting System, Inc., 368

Rs IE Ft irda cserectncccccesnnnscvscntinancenessnctenenerssesesess

Pullman-Standard v. Swint, 456 U.S. 273 (1982) .......

Scranton v. Wheeler, 179 U.S. 141 (1900) ...............-

Sierra Club v. Sigler, 695 F.2d 957 (Sth Cir. 1983) ....

Singleton v. Wulff, 428 U.S. 106 (1976) .........-seeceeeees

Societe Internationale v. Rogers, 357 U.S. 197 (1958)

State of Minnesota By Alexander v. Block, 660 F.2d

9240 (Bthr Cae. 1961) ...crreccrccconccrcccccrerccccsecsccecnesosorooes

Township of Springfield v. Lewis, 702 F.2d 426 (3rd

io | See

Turner v. City of Memphis, Tennessee, 369 U.S. 350

PIII saxensssssensispsicncatsosntinbecistennssiniesnvnsbenionsievcsesonecoureenene

United States v. Appalachian Electric Power Co., 311

Be Be 0 Oe F iiccthcinietecineneninerennnnceceommpesanmesncencvsnestece

United States v. California, 332 U.S. 19 (1947)..........

United States v. California, 436 U.S. 32 (1978)..........

United States v. Chandler-Dunbar Water Power

Company, 229 U.S. 53 (1913 ).........ccccccsccccsercrsncseees

United States v. Cherokee Nation of Oklahoma, No.

85-1940 (U.S. March 31, 1987)...........c..ccccccscccscsasees

SOSOOSSSESE SE SEEESES EH SESEOSEOOS

United States v. Commodore Park, Inc., 324 U.S. 386

I cictttinccrarsistniessiimenittitioremamennsstisdliamnonenmpestionsmnnesenee

United States v. Rands, 389 U.S. 121 (1967) ..............

United States v. Twin City Power Company, 350 U.S.

FE ED vceitsstnitininnscceneniaitignnnavennstonatensasciscintamennisseses

United States v. Virginia Electric & Power Co., 365

BEE 0 TING Dincccsecosscenersessnapenisinnensernsinsenenrsnnnsinoenios

Weade v. Dichmann, Wright & Pugh, Inc., 337 US.

5 _, RRS EE eee eee o renner ne nnonne ere

Page

21,24

17,18,19

22,23

7,8,10,12

7,8,15,16,

10,11

14,17

10,11

21,24

Vil

STATUTES:

Administrative Procedure Act, 80 Stat. 392, 5

U.S.C.A. § 701 et seq.

Fe Oe Oe Fe ee I Be aceccccntinveccenesscccecencrcosse

Alaska National Interest Lands Conservation Act, 94

Stat. 2371, 16 U.S.C.A. § 3101 ef seq... ecceeeseeeeeee

§ 102, 94 Stat. 2375, 16 U.S.C.A. § 3102.00.00...

De I BO chesensnnvnssnncnssnsvonnsinnnatucenane

S SOC Cp, FE ORE, BOD nncsseccssccccnserssoneconsscscosenscece

§ 810(a), 94 Stat. 2427, 16 U.S.C.A. § 3120(a)..

Alaska Statehood Act, Pub. L. No. 85-508, 72 Stat.

Bia iiihieitaiaanitintieaesnechanpnnnveenctlleananunninnscnanes

Alaska Native Claims Settlement Act, 85 Stat. 688,

43 U.S.C.A. § 1601 ef seg.

§ 22(k), 94 Stat. 2496 (as amended), 43

IG TE METI Dc cincconsseensnepsibbenspinnpenaieenmecs

Clean Water Act, 91 Stat. 1567, 1575 (as amended),

33 U.S.C.A. § 1251 et seq.

§ 404, 91 Stat. 1600, 33 U.S.C.A. § 1344.00.

International Waterways Act, 40 Stat. 266 (as

amended ), 33 U.S.C.A. § | ef seq.

G7, GP Stet. 266, F3 US.C.A. § A nn cncccccscsesnssscsceses

National Environmental! Policy Act, 83 Stat. 852, 42

Reels Oe I OI ecttcancectsenosersmsrenssncvonsessesore

Rivers and Harbors Act of 1899, 30 Stat. 1151 (prior

to amendments ), 33 U.S.C.A. § 401 ef seq.

§ 10, 30 Stat. 1151, 33 U.S.C.A. § 403 oo.

Submerged Lands Act, 67 Stat. 29, 43 U(S.C.A.

BARRA CAEN RIES SRC Ea

§ 3(a), 67 Stat. 30, 43 U.S.C.A. § 1311(a) ..........

§ 6(a), 67 Stat. 32, 43 U.S.C.A. § 1314(a) ..........

MISCELLANEOUS:

Federal Rules of Civil Procedure

Rule 56. Summary Judgement ........0........ccccceceeee.

ko RO RRRRRU ERR SLE ore ee 7 ne ae

Page

8,11

5,17,18,19

4,19

7-19

2,4

2,8,12,13

2,19-26

Vili

i BY ii cccsicnsitnsitsaisninccirntinaniinveieanneeniabsunsnievniaaaiinn

i Ba since nsicennictanincnaincicinnminniniannsintbitstniaiasnnintine

Presidential Proclamation 4611, Admiralty Island

National Monument, 14 Weekly Comp. Pres. Doc.

SEES CER Lg FTO D cctciccstcnetinenitliintininnomstiifonaperinsces

McRoy & Goering, Coastal Ecosystems of Alaska, |

COASTAL ECOLOGICAL SYSTEMS OF THE

UNITED STATES (H.T. Odum, B.J. Copeland,

Ae, Se I, FTP shctendnenrnentnnnttncepstccennnseneinees

10, Wright, Miller and Kane, FEDERAL PRAC-

TICE AND PROCEDURE § 2716 (1983) .............

H. R. REP. No. 215, 83rd Cong., Ist Sess. Appendix

I, reprinted in 1953 U.S. Code Cong. and Admin.

DEE, SIO 5 COUPEE vecccsncnerecsenrctvasuronienencanansoriniee

HCE Cee)...

Page

20-25

No.

IN THE

Suprene Court of the United States

OCTOBER TERM, 1986

Crry OF ANGOON, ef ai.,

Petitioners,

¥,

DONALD HODEL, SECRETARY OF THE INTERIOR,

et al., SHEE ATIKA, INC., and

SEALASKA, COrRP.,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Petitioners City of Angoon, the Sierra Club, The Wilder-

ness Society, et al., respectfully pray that a writ of certiorari

issue to review the judgment and opinion of the United States

Court of Appeals for the Ninth Circuit, entered in the above-

entitled proceeding on October 31, 1986.

OPINIONS BELOW

The opinion of the Court of Appeals for the Ninth Circuit

is reported at 803 F.2d 1016, and is reprinted in the Appendix

(“App.”) at A-l.

The three opinions of the District Court for Alaska (von

der Heydt, J.) are unreported; the two relevant opinions are

printed at App. D and E.

JURISDICTION

Petitioners brought suit in the district court alleging

jurisdiction under 28 U.S.C. §§ 1331, 1361, and 1367. The

district court granted partial summary judgment for Petitioners

on one issue and for Respondents on other issues in a Memo-

randum and Order dated November 26, 1985. App. D-6. The

district court granted summary judgment for Respondents on

other issues in two Memoranda and Orders dated October 17,

1985. App. E. Partial Final Judgment was entered December

27, 1985. App. F.

Petitioners and Respondents filed cross-appeals, and the

Court of Appeals reversed in part and affirmed in part in a per

curiam opinion dated October 31, 1986. App. A. The judgment

was entered the same date. App. B-l. A timely-filed petition

for rehearing was denied December 1, 1986. App. C-l.

The jurisdiction of this Court to review the judgment of the

Ninth Circuit is invoked under 28 U.S.C. § 1254(1). Justice

O’Connor extended Petitioners’ time for filing this Petition to

and including April 10, 1987.

STATUTES INVOLVED

The Alaska National Interest Lands Conservation Act, Pub.

L. No. 96-487, 94 Stat. 2371 (codified in various sections of 16

and 42 U.S.C.) (pertinent text set forth in App. G-1 to 5).

The Submerged Lands Act, 43 U.S.C.A. §§ 1301-1314

(pertinent text set forth in App. G-5 and 6).

The National Environmental Policy Act of 1969, 42

U.S.C.A. §§ 4321-4361 (pertinent text set forth in App. G-6 to

8).

Federal Rules of Civil Procedure, Rule 56, Summary Judg-

ment (pertinent text set forth in App. G-9).

STATEMENT OF THE CASE

1. Summary

Petitioners City of Angoon and the Angoon Community

Association represent the traditional subsistence interests of the

600 residents of the village, 287 of whom are individual

Petitioners. The village is the only permanent settlement on

Admiralty Island in Southeast Alaska. It also is the only

remaining traditional Tlingit Indian village. Angoon’s tradi-

tional use of Admiralty Island extends along the west coast of

the island, from the bays south of Angoon, to Cube Cove, thirty

miies to the north. Cube Cove, which is within the three-mile

limit of Alaska’s coastal waters, is one of Angoon’s most

important subsistence areas.' Its pristine waters are used for

fishing and gathering, and its sheltered cove is used as an

anchorage in storms. The Angoon Tlingit also traditionally use

the uplands surrounding Cube Cove for subsistence hunting,

gathering, and trapping.2

' Federal Respondents’ Environmental Impact Statement confirms the

importance of Cube Cove:

Angoon residents have hunted, gathered, fished and trapped

along the western coast of Admiralty Island as far north as Hawk

Inlet at least throughout the historic period... . Cube Cove was

and is a location exploited by Angoon people .. . when they are

traveling up and down Chatham Strait. It appears to be

important for deer hunting, both as a specific destination and as

part of a beach hunting strategy wherein every cove on the coasi

north of Angoon is visited looking for deer. Deer meat is a highly

valued and important part of the Angoon diet and hunters will go

further to harvest deer than to harvest any other wild resources

(George and Kookesh 1983:12).

Court of Appeals, Excerpt of Record at 00281.

2 Because it is one of the last remaining isolated and intact ecosystems in

North America, Admiralty Island also is an important scientific laboratory for

the study of nesting bald eagles (the island has the densest population of

nesting eagles in the world), giant Alaska brown bears (also among the

densest populations in the world), and other wildlife. Similarly, because the

island has been separated from the mainland since the last Ice Age, it is a

unique “control” for the study of comparative evolution between areas

affected by development and those in their natural state. See generally,

Presidential Proclamation 4611, Admiralty Island National Monument, 14

Weekly Comp. Pres. Doc. 2112 (Dec. 1, 1978).

Cube Cove and the surrounding lands are within the

boundaries of the Admiralty Island National Monument, estab-

lished by Presidential Proclamation in 1978 and by Congress in

1980. ANILCA § 503(b), 94 Stat. 2399, App. G-2. Congress

also conveyed a 23,000-acre inholding surrounding Cube Cove

to Shee Atika, Inc., the urban Native corporation for the City of

Sitka (located on Baranof Island). ANILCA § 506(c), 94 Stat.

2409, App. G-3. Shee Atika, Inc. plans to clearcut timber

harvest 20,000 acres of its inholding within the Monument.

“‘( Bjecause of the configuration of the Cube Cove lands, their

harvest could affect the wilderness character of a large sur-

rounding area of public land as well, perhaps as much as

80,000 additional acres.” Memorandum and Order on Subsist-

ence and Trust Responsibilities, October 17, 1985, App. E-2.

Angoon’s wildlife and anthropology experts testified that this

would affect up to half of Angoon’s traditional subsistence

territory, and could lead to the destruction of the culture. Court

of Appeals, Plaintiffs’ Excerpts of Record, Vol. I at Tabs 20 to

24. More than 1,000 acres already have been harvested.

To support its timber operation, Shee Ata, Inc. plans to

construct a 400-foot permanent rock-fill breakwater in the

coastal waters of Cube Cove as part of its log transfer facility

(“LTF”). In April, 1982 the Corps of Engineers issued permits

for the breakwater and LTF under § 404 of the Clean Water

Act, 33 U.S.C.A. § 1344, and § 10 of the Rivers and Harbors

Act of 1899, 33 U.S.C.A. § 403.

2. Procedural History

The City of Angoon, the Angoon Community Association,

287 individually-named Natives, the Sierra Club, and The

Wilderness Society (““Angoon” or “Petitioners”) challenged

the issuance of the Corps’ permits for the breakwater and LTF

in the district court, claiming, inter alia, that the permits were

improper because they had been issued without preparation of

an Environmental Impact Statement (“EIS”), as required

under the National Environmental Policy Act (“NEPA”), 42

U.S.C.A. § 4321 et seg. The Corps subsequently stipulated to

suspend its earlier permits, and agreed to prepare an EIS.

In March, 1984 Angoon returned to court to enjoin con-

struction of the LTF and related timber harvesting on 400 acres

of Shee Atika’s inholding.? The district court granted a tempo-

rary restraining order halting construction of the LTF, but did

not enjoin the related harvesting. After expedited briefing and

argument, in April, 1984 the district court granted a preliminary

injunction against timber harvesting. The court held that the

prohibition against timber harvesting “within the Monument”

in ANILCA § 503(d) should be construed to prohibit harvest-

ing on all lands “within the boundaries of the Monument,”

including Shee Atika’s inholding. In December, 1984 the Ninth

Circuit reversed the preliminary injunction. Angoon v. Marsh,

794 F.2d 1413 (9th Cir. 1984). The case was remanded to the

district court where it was consolidated with three related

actions and renamed Angoon v. Hodel.

Upon consolidation, the district court ordered Angoon to

file a consolidated complaint. This was submitted on April 29,

1985 and included new claims under NEPA §§ 101 and 102

challenging both the adequacy of the EIS (which the Corps

completed in October, 1984), and the validity of the Corps’

decision to reinstate the permits (the Record of Decision was

issued February 25, 1985).

Upon the filing of the consolidated complaint, Shee Atika

and the Federal defendants moved for summary judgment on

all claims. Angoon responded with cross-motions for summary

judgment on the claims brought under ANILCA and the

Alaska Native Claims Settlement Act (“ANCSA’), 43

U.S.C.A. § 1621(k). In addition, Angoon moved for partial

summary judgment on their challenge to the adequacy of the

EIS (in light of the Corps’ failure to study the alternative of

exchanging the inholding for other federal interests outside the

Monument). This was only one of several claims under §§ 101

and 102 of NEPA; Angoon concluded that their other chal-

lenges to the adequacy of the EIS and the validity of the Corps’

3Shee Atika had commenced operations despite the absence of a

‘completed EIS and the suspension of the permits. The Corps eventually

issued a Cease and Desist Order directing Shee Atika to halt its illegal

activities.

permits were not appropriate for summary judgment, at least at

that time.

In the one week between the Corps’ issuance of its decision

on the § 404 and § 10 permits and the district court’s order to

file a consolidated complaint, Angoon had no opportunity to

conduct discovery on these claims. Following the district

court’s order to submit briefs within 30 days, Petitioners

devoted their attention to briefing the ANILCA and ANCSA

issues and their one non-factual NEPA issue. In light of these

exigencies, counsel for Angoon.submitted an affidavit pursuant

to Rule 56(f), Federal Rules of Civil Procedure, noting, in

addition to their need for discovery, that affidavits already

submitted showed the existence of factual disputes regarding

the environmental and subsistence effects of Shee Atika’s LTF

project, thus rendering Angoon’s other, factually-based, chal-

lenges to the EIS and permits inappropriate for disposition by

summary judgment.

In a series of three Memoranda and Orders, two issued

October 17, 1985 and one issued November 26, 1985, the district

court dismissed Angoon’s ANILCA claims and their one

ANCSA claim, and granted Angoon’s cross-motion for sum-

mary judgment on the limited issue of the inadequacy of the

EIS in light of the failure to study the alternative of a land

exchange. (This made it unnecessary for the court to rule on

Angoon’s Rule 56(f) affidavit.) The district court denied

defendants’ motions for summary judgment on all NEPA

issues. Cross-appeals were then taken.

On appeal, the Court of Appeals for the Ninth Circuit

affirmed the dismissal of Angoon’s ANILCA and ANCSA

claims, holding, inter alia, that § 503(d)’s timber harvest

prohibition does not apply to Shee Atika’s private inholding

within the boundaries of Admiralty Island National Monument.

The court also held that the United States does not hold title to

the navigational servitude, and that the Corps was not required

to consider the subsistence effects of its decision to permit the

LTF and breakwater to use the navigable waters of Cube Cove.

The Court of Appeals reversed the district court’s grant of

partial summary judgment to Angoon on the inadequacy of the

EIS in light of the failure to study the alternative of a land

exchange, holding that exchange of Shee Atika’s inholding did

not need to be studied in-depth.¢

Instead of remanding, however, the Court of Appeals went

on to hold that “the adequacy of an EIS is a legal question” and

that there were no issues of material fact remaining. The court

then sua sponte directed entry of summary judgment for

defendants on the adequacy of the EIS and the validity of the

Corps’ permits.

Following the Court of Appeal’s decision, Angoon peti-

tioned for rehearing, drawing the court’s attention to the fact

that they were given no opportunity to present their remaining

NEPA claims to the district court, that there were disputed

issues of material fact with respect to these claims (as evidenced

by the subsistence affidavits already in the record), that the

district court had never ruled on their Rule 56(f) affidavit, and

that summary judgment on their remaining claims, without

notice or an opportunity to be heard, was inappropriate.

Angoon asked the court to remand the case to the district court

for trial. On December |, 1986, the Ninth Circuit denied the

motion without comment.

REASONS FOR GRANTING THE WRIT

1. The Decision Below Relinquishes the United States’ Title

to the Navigational Servitude in the Coastal Waters of

Alaska, So that the Waters Do Not Qualify for Subsist-

ence Protection Under § 810 of ANILCA, and Is in

Conflict with the Reasoning of this Court in Gambell,

United States v. California, and Cherokee Nation

In the decision below the Court of Appeals boldly held

that “the United States does not hold title to the navigational

servitude,” so that § 810 does not apply to federal actions

“ Although Angoon asserts that this holding in incorrect, they are not

seeking review on this issue.

permitting the use of Alaska’s vast coastal waters.5 While the

issue of title does not appear ever to have been decided by this

Court, the reasoning of the Court of Appeals appears to conflict

with the reasoning of several Supreme Court decisions, in-

cluding Amoco Production Co. v. Gambell, No. 85-1239 (U.S.

March 24, 1987), United States v. California, 332 U.S. 19

(1947), and United States v. Cherokee Nation of Okla., No. 85-

1940 (U.S. March 31, 1987).6

In Gambell, the Court considered whether the United

States held “title” to the Outer Continental Shelf, within the

meaning of § 810. The Court responded cautiously that while

the United States “may not hold ‘title’ to the submerged lands

of the OCS, ... we hesitate to conclude that the United States

does not have ‘title’ to any ‘interests therein.’”” Gambell, slip

op. at 16, n.15.

The holding of the Court of Appeals appears as well to

conflict with the reasoning of United States v. California and

with the congressional understanding embodied in the Sub-

merged Lands Act, 43 U.S.C.A. § 1301 ef seqg., both of which

are premised on the assumption that the United States holds an

interest in, and the power to dispose of, the coastal waters of the

United States, including the navigational servitude.

The Court of Appeals decision also appears to conflict with

the reasoning of Cherokee Nation and the many other Supreme

Court decisions that distinguish between the broad con-

stitutional power over navigable waters under the Commerce

Clause, and the navigational servitude as a geographically

defined property interest, and which strictly guard the United

States’ fullest rights in and powers over this interest.

$Section 810 of ANILCA, 16 U.S.C.A. $3120, App. G-4, imposes

obligations on federal agencies with respect to decisions affecting the use of

“public lands... in Alaska,” which are defined to mean “lands, waters, and

interests therein,” the “title to which is in the United States after the date of

enactment of [| ANILCaA].” ANILCA § 102, 16 U.S.C.A. § 3102, App. G-1

(emphasis added ).

6 Section 810 applies only “in Alaska” and it is unlikely that any circuit

other than the Ninth will consider this issue and create a more direct conflict.

A. Whether the United States Has Relinquished Title to

the Navigational Servitude Is an Important Issue

Relinquishing title to the navigational servitude is an

important undertaking. This Court has always strictly guarded

the United States’ full interest in the navigable servitude. If any

part of that interest, including title, is now to be relinquished by

the judiciary, it should be done cautiously, by this Court, and

with a full understanding of all the possible consequences.

For § 810 alone, surrendering title means that the subsist-

ence resources of Alaska’s vast coastal and inland waters will

receive no protection under the procedural safeguards of

ANILCA. Many of Alaska’s Natives and other subsistence

users rely on the resources in the coastal waters, as well as the

resources in inland waters.” (The Corps of Engineers records

show over 6,000 permits to use Alaska’s navigable waters, with

another 200 permits now pending. )

Unless the United States has some “title” in the naviga-

tional servitude or other interest in the navigable waters of

Alaska, to satisfy the definition of “public lands,” these federal

actions will continue to be undertaken without regard to

possible effects on subsistence. For the villagers of Angoon this

could be devastating. It also could be devastating for the many

other subsistence users of Alaska’s vast coastal area.

This Court should grant the writ to resolve the important

issue of whether the United States has relinquished its title to

Alaska’s coastal waters for the purposes of ANILCA § 810.

B. The Holding and Reasoning of the Decision Below

In considering whether § 810 applied to the Corps of

Engineers’ decision to permit the use of the coastal waters of

Cube Cove, adjacent to Shee Atika’s inholding within the

7 Alaska’s 6,640 miles of geneial coastline is 54% of the general coastline

of the United States. McRoy & Goering, Coastal Ecosystems of Alaska, in |

COASTAL ECOLOGICAL SYSTEMS OF THE UNITED STATES, (H.T.

Odum, B.J. Copeland, E.A. McMahon ed. 1984) at 125; see also id. at 124

(“Alaska lives on its coast, a coast that extends from the rain forests of

Southeast Alaska to the arctic tundra.”).

Admiralty Island National Monument, the Court of Appeals

observed that “[i]t seems likely that...a subsistence eval-

uation of the government’s Cube Cove actions would be

beneficial and consistent with the purposes of ANILCA.” 803

F.2d at 1028, App. A-23. Nevertheless, the court held that

“Ts]ince the United States does not hold title to the navigatio-

nal servitude, the servitude is not ‘public land’ within the

meaning of ANILCA,” and a subsistence evaluation therefore

is not required under § 810. 803 F.2d, at 1027-28, n.6, App. A-

22, 0.6.8

The Court of Appeals reasoned that the servitude is no

more than the “ ‘power of government to control and regulate

navigable waters in the interest of commerce.’” Jd., quoting

United States v. Virginia Elec. & Power Co., 365 U.S. 624, 627-

28 (1961) (which in turn was quoting United States v. Com-

modore Park, 324 U.S. 386, 390 (1945)). Beyond offering the

quoted language, the Court of Appeals did not further discuss

Virginia Electric or Commodore Park. Neither decision, how-

ever, holds that the United States does not have title to the

navigational servitude. And while neither decision explicitly

holds that the United States does have title, each analyzes the

navigational servitude as both a geographically-defined prop-

erty interest, dominant over all other interests, and as a vehicle

for regulation under the Commerce Clause power.?

In Virginia Electric the Court referred to the “navigational

servitude—sometimes referred to as a ‘dominant servi-

tude,’.. . or a ‘superior navigation easement... ,”’ ” 365 US. at

627, and reasoned that “[s]ince the... servitude only encom-

passes ... the stream itself and the lands beneath and within its

8 In rejecting Angoon’s alternative argument that the spillover effects on

the adjacent Monument lands, caused by the clearcutting, constitute the use of

“public lands,” the court held that “none of the agencies Sierra cite has

‘primary jurisdiction’ over the public lands used for subsistence, as required

by section 810.” 803 F.2d at 1028, App. A-23. This comment, however, was

not addressed to the navigable servitude, which is under the primary

jurisdiction of the Corps of Engineers. See infra at 12.

® Both decisions also are distinguishable because they involve inland

waters, in contrast to the coastal waters at issue here. United States v.

California, 332 U.S. 19, 30 and n.9 (1947) specifically distinguishes Com-

modore Park on this ground. See also, infra at 12, n. 10.

high-water mark, the Government must compensate for any

taking of fast lands...” outside this geographic boundary. Id.

at 628. The Court also noted that the navigational servitude

“ ‘can be asserted to the exclusion of any competing or conflict-

ing’ ” property interest, for any such interest “ ‘has always been

subject’ ” to the servitude. Id.

Similarly, Commodore Park observed that since the

“[rjespondent’s property was always subject to a dominant

servitude ... ,” and his “fast lands [were] left uninvaded, [he]

ha[d] no private nparian rights..., for which nghts the

government must pay.” 324 U:S. at 391. Both Virginia Electric

and Commodore Park refer to the servitude in this dual

manner—as both a property interest and as a power over

commerce.

Virginia Electric and Commodore Park’s property analysis

of the navigational servitude is consistent with the notion that

the United States holds “title” to that “dominant servitude” or

“superior navigation easement.” But whether or not the United

States holds the technical legal “title,” it should be enough for

§ 810 that whatever title the United States does have, it was not

conveyed to any other party by ANILCA, and therefore “the

title...is in the United States after the date of enactment of

[ANILCA].” ANILCA § 102(2) (emphasis added).

C. The Decision Below Conflicts with the Reasoning of

Gambell

In holding that § 810 does not apply to the Outer Conti-

nental Shelf (“OCS”), outside the three-mile boundary limit,

the Gambell Court reasoned that § 810 applies “in Alaska”; that

“in Alaska” means “within the boundaries of the State of

Alaska”. and that those boundaries extend “to a line three

miles from its coastline.” Gambell, slip op. at 13-14 (emphasis in

original). Unlike the OCS, Cube Cove is on the coast of the

Admiralty Island National Monument, and within the three-

mile boundary of the state.

Gambell next considered the alternative argument that

§ 810 does not apply to the OCS because the United States does

not claim “title” to the submerged lands of the OCS. The Court

rejected this, reasoning that:

The United States may not hold “title” to the sub-

merged lands of the OCS, but we hestiate to conclude

that the United States does not have “title” to any

“interests therein.” Certainly, it is not clear that

Congress intended to exclude the OCS by defining

public lands as “lands, waters, and interests therein”

“the title to which is in the United States.”

Id. at 16, n.l15. Whatever the nature of the United States’

“interest” in the OCS, the United States holds title to an

“interest” within the three-mile limit (including the waters of

Cube Cove). That “interest” is the navigational servitude.

In addressing an alternative argument, the Gambell Court

also observed that “no federal agency has ‘primary jurisdiction’

over the OCS; agency jurisdiction [under the OCS Jturns on the

particular activity at issue. See G. Coggins and C. Wilkinson,

Federal Public Land and Resources Law 434 (1981).” The

Court concluded that this suggests that § 810 “does not apply to

the OCS.” Jd. at 19. For coastal waters within the three-mile

limit, however, the Corps of Engineers has primary jurisdiction

to manage and protect the United States’ navigational servi-

tude. See e.g., 33 U.S.C. § 1 et seg. (“It shall be the duty of the

Secretary of the Army to prescribe regulations for... the

navigable waters... , covering all matters not specifically dele-

gated by law to some other executive department.” (emphasis

added )); and 33 C.F.R. Chapter II.

D. The Decision Below Conflicts with the Reasoning of

United States v. California and with Congressiona!

Intent Under the Submerged Lands Act

In holding that California lacked title to the lands and

resources in the coastal waters off its shores, the Court in United

States v. California, 332 U.S. 19 (1947), implicitly recognized

ownership on the part of the United States in the three-mile

waters and the lands underneath.'° Though the Court did not

expressly hold that the United States had “title,” the language

used by the Court strongly suggests that its “interest” is a

property interest, title to which is held by the United States.''

Indeed, Justice Frankfurter’s dissent was based on the fact that

the Court refrained from explicitly finding a proprietary interest

in the area while at the same time finding “national dominion”

by the United States over this area, a concept which implies

property ownership. Jd. at 43-45. Accepting the majority’s

conclusion that California lacked ownership of the three-mile

belt, Justice Frankfurter believed that at best this area was

unclaimed. While not doubting that the Federal government

had the power to claim title to this area, Justice Frankfurter

believ. J such a determination was for Congress, not the Court,

to make. Id. at 45-46.

Just such a determination was made by Congress in

enacting the Submerged Lands Act, 67 Stat. 29, 43 U.S.C.A.

§ 1301 et ea. (1986 ed.).12 As noted in Gambelil, this Act

10 The Court refused to extend “the Pollard inland water rule to the

ocean area.” 332 U.S. at 30-31. “In the Pollard case it was held, in effect, that

the original states owned in trust for their people the navigable tidewaters

between high and low water mark... as an inseparable attribute of State

Sovereignty.” Jd. at 31.

‘1 For example, the Court stated:

The justiciability of this controversy rests therefore on conflicting

claims of alleged invasions of interests in property ...,” 332 U.S.

at 25; “after determining in general who owns the three-mile belt

here involved, the Court [can hold further hearings to determine

the proper demarcation of that belt],” id. at 26; “. . . acquisition,

as it were, of the three-mile belt [has] been accomplished by the

National government...,” id at 34; “We decide... that the

Federal Government rather than the state has paramount rights

in and power over the belt, an incident to which is full dominion

over the resources of the soil under that water area, including

oil,” id. at 38-39; “Assuming that government agents could by

conduct, short of a Congressional surrender of title or interest,

preclude the Government from asserting its legal rights, we

cannot say it has done so here.”

Id. at 39 (emphasis added).

12 See generally, 1953 U.S. Code Cong. and Admin. News, 1385 and 1418-

22.

grants title to the submerged lands within the three-mile limit to

the various States. Gambelil, slip op. at 14.19 However, in

making this grant to the States, the Act “expressly recognized

that the United States retained ‘all its navigational servitude

and rights in and powers of regulation and control of said lands

and navigable waters....’” United States v. Rands, 389 U.S.

121, 127 (1967), quoting the Submerged Lands Act, 43 U.S.C.

§ 1314(a), App. G-5 (emphasis added).

In construing the Submerged Lands Act, United States v.

California, 436 U.S. 32 (1978) held that the propnetary

interests of the United States in the submerged lands and

natural resources passed to the State of California:

[w]ith the exception, of course, of any interests

retained by the United States....For exam-

ple...the retention by the United States of its

navigational servitude and its “rights in and powers

of regulation and control of said lands and navigable

waters....” 43 U.S.C. § 1314(a).

Id. at 41 2.18 (emphasis added).

The navigable servitude retained by the United States

under the Submerged Lands Act is an interest in water, title to

which is in the United States.'4 Because ANILCA did not

purport to give away this interest, the navigational servitude in

the waters of Cube Cove remains as an “interest” in water, “the

title to which is in the United States after the date of enactment

13 Section 1311 conveys to the States the “title to and ownership of the

lands beneath navigable waters within the boundaries of the respective states,

and the natural resources within such lands and waters... .” 43 U.S.C.A.

§ 1311(a), App. G-5. Through the Alaska Statehood Act, the Submerged

Lands Act grants title to the submerged lands within the three-mile limit off

the coast of Alaska to the State of Alaska. Gambelil, slip op. at 14.

14 Cf, 1953 U.S. Code Cong. and Admin. News, at 1422:

The committee is unable to determine whether or not the

Supreme Court held that the United States has actual title to the

{three mile marginal belt]... {but the bill] will establish,

confirm, and vest in the littoral states ... such title and rights as

the Federal Government has, subject to the reservations contained

therein. (Emphasis added. )

of [ANILCA],” making the servitude “public lands” for

purposes of § 810. Unless “public lands” include the naviga-

tional servitude retained by the United States, there will be no

meaning to that part of the statutory definition dealing with

“waters, and interests therein” for Alaska’s coastal waters.

E. The Decision Below Conflicts with the Reasoning of

Cherokee Nation and Other Decisions that Strictly

Guard the United States’ Fullest Rights in and Pow-

ers over the Navigational Servitude

Cherokee Nation held that the conveyance of fee simple

title to a portion of the riverbed under the Arkansas River did

not give the tribe an interest requiring compensation when their

sand and gravel deposits were damaged by navigational im-

provements undertaken by the United States. Even though the

navigational servitude had not been reserved in the treaty

conveying the riverbed, the Court strictly guarded the United

States’ full rights in the servitude.

Although the Court also relied on the Commerce Clause as

a source of regulatory power over navigable waters, the reason-

ing in Cherokee Nation is consistent with the understanding that

the navigational servitude also is a property interest, even in

inland waters, to which the United States holds title (and which

the United States could, under some circumstances, convey to

another party). Initially, the Court addressed the troubling fact

that the United States failed to reserve the navigational servi-

tude in the treaty conveying the riverbed, and the tribe’s

argument that this resulted in the United States abandoning its

navigational servitude. Cherokee Nation, slip op. at 2, 3, 5.

The Court first observed that the Court of Appeals “found

it ‘certain [that] the United States retained a navigational

servitude in the Arkansas River.” Jd. at 3. The Court next

noted that in the original Supreme Court litigation to establish

title to the riverbed, the “parties, including respondent here,

clearly understood that the navigational servitude was domi-

nant no matter how the question of riverbed ownership was

resolved.” Jd. at 6. The Court’s concern with the failure to

reserve the servitude is consistent with the understanding that

the United States holds title to the servitude, and that under

some circumstances, at least, it can convey that title. '5

The next step in the Court’s reasoning in Cherokee Nation

also is consistent with the conception of the servitude as a

property interest. The Court observed that the geographic limit

of the navigational servitude is “the entire stream and the

stream bed below ordinary highwater mark.” Jd. at 4. The

Court quoted with approval from the dissent below, which

noted that “the issue is whether the segment or interest is within

the definition and scope of the [navigational servitude] doc-

trine geographically.” Id. at 3 (emphasis added). (If it is, and

the interference is in aid of navigation, there is no taking. )

The final step in the reasoning in Cherokee Nation, also

consistent with the notion of the servitude as property, was the

Court’s “refus[{al] to give a still more expansive and novel

reading of responcent’s property interest. There is certainly

nothing in Choctaw Nation [holding that the tribe was con-

veyed the fee to the riverbed] that suggests such a broad

reading of the conveyance.” Jd. at 6. The Court continued by

stating that:

Any other conclusion would be wholly extraordinary,

for we have repeatedly held that the navigational

servitude applies to ail holders of riparian and riv-

erbed interests. [Citations omitted.] Indeed, even

when the sovereign States gain “the absolute right to

all their navigable waters and the soils under them

for their own common use”... , this “absolute right”

is unquestionably subject to “the paramount power

of the United States....” If the States themselves

are subject to this servitude, we cannot conclude that

respondent—though granted a degree of sovereignity

over tribal lands—gained an exemption from the

servitude simply because it received title to the

1S The Court also stated that in the earlier action to establish title the

Court “expressly noted that the United States had no interest in retaining title

to the submerged lands because ‘it had all it was concerned with in its

navigational easement via the constitutional power over commerce.’ ” Jd. at 6

(emphasis in orginal).

Nae

riverbed interest. Such a waiver... must be “surren-

dered in unmistakable terms.”

Id. at 7.

The reasoning in Cherokee Nation is based on the recogni-

tion that the navigational servitude in an interest that the

United States might have conveyed, though only if “surren-

dered in unmistakable terms.” Jd. at 7. This suggests that the

United States holds some title it can convey. The holding and

reasoning of Cherokee Nation also imply that the navigational

servitude must be strictly guarded, and that none of the

interests of the United States, least of all title, should be

surrendered lightly. This is in conflict with the decision below.

Other decisions of the Supreme Court illsutrate that while

the origin of the navigational servitude may be in the Com-

merce Clause (at least for inland waters), its attributes are

nonetheless attributes of property ownership, inuring to the

United States in its sovereign capacity.'® Consistent with such

analysis, these decisions have strictly guarded the United States’

fullest rights in, and powers over, the navigational servitude.

The decision below is in conflict with the reasoning of these

cases as well.

2. The Decision Below Construing the Precise Geographic

Designation “Within the Monument” as Not Having Its

“Plain Meaning” —“Within the Boundaries of the Monu-

ment”—Conflicts with the Reasoning of this Court in

Gambell and the Eighth Circuit in Minnesota v. Block

The decision below construing the precise geographic

designation “within the Monument” in § 503(d) of ANILCA

16 These property attributes include “dominion over the water power” of

a navigable stream, United States v. Chandler-Dunbar, 229 U.S. 53, 63

(1913) (accord, United States v. Appalachian Electric Power Co., 311 U.S.

377, 424 (1941)), rights of occupancy, Scranton v. Wheeler, 179 U.S. 141, 164

(1900), the “right to exclude” and dominance over conflicting interests, the

power to “appropriate”, and the power to “grant” or withhold the value of

the flow of a stream. United States v. Twin City Power Company, 350 U.S.

222, 224-28 (1956). The Courts’ terminology indicates that the navigable

waters of the United States “are the public property of the Nation.” United

States v. Rands, 389 U.S. 121, 122-23 (1967) (accord, United States v.

Chandler-Dunbar, 229 U.S. at 76; Scranton, 179 U.S. at 159; Gilman v.

Philadelphia, 3 Wall. 713, 724-25 (1865) ).

as not having the plain meaning “within the boundaries of the

Monument” conflicts with the reasoning of this Court in Amoco

Production Co. v. Gambell, No. 85-1239 (U.S. March 24, 1987),

and the Eighth Circuit in Minnesota v. Block, 660 F.2d 1240

(8th Cir. 1981), both of which construe similar geographic

designations to plainly mean “within the boundaries” of the

designated area.'7

The Gambell case, like the present case, involved the

determination of the proper scope to be given an analogous

geographic designation in ANILCA. In Gambell the Court

reasoned that the term “in Alaska” in the subsistence study

provision of § 810 of ANILCA had “a precise geographic/

political meaning..., [with] boundaries... [which] can be

delineated with exactitude.” Gambelil, slip op. at 14. The Court

concluded that the “plain meaning”, id. at 16, was “within the

boundaries of the State of Alaska.” Jd. at 13.

The Gambeill Court further reasoned that where a geo-

graphic “expression is capable of precise definition, we will give

effect to that meaning absent strong evidence Congress actually

intended another meaning.” Gambell, slip op. at 15. This is in

“* ‘recognition that Congressmen typically vote on the language

of a bill,... [and] that the legislative purpose is expressed by

the ordinary meaning of the words used.’” Jd. The Court

concluded that the term “in Alaska” does not represent “that

‘exceptional case’ where acceptance of the plain meaning of a

word would ‘thwart the obvious purpose of the statute’.” Jd. at

16.

The Minnesota case, like the present case, also involved the

determination of the proper scope to be given a precise

geographic designation in an analogous federal conservation

statute. In Minnesota, the Eighth Circuit reasoned that the term

“within the wilderness” in the Boundary Waters Canoe Area

Wilderness Act, by its “plain language,” 660 F.2d at 1248 n.15,

included all lands and waters “within the boundaries of the

17 Section 503(d) provides: “Within the Monuments, the Secretary [of

Agriculture] shall not permit the sale of [sic] harvesting of timber;....”

App. G-2.

BWCAW,” including non-federal inholdings owned by the

State. Jd. at 1248.

In contrast, the Court of Appeals refused to recognize that

the “plain meaning” of “within the Monument” is “within the

boundaries of the Monument”. The Court of Appeals also

erred in finding a conflict with the conveyance of the inholding

to Shee Atika in § 506(c) of ANILCA. The court ignored the

value of the inholding for exchange, and concluded, without

any evidence, that timber harvesting was the inholding’s “only

real economic value.” 803 F.2d at 1024, App. A-16. The court

strained to support its conclusion that the inholding had no

exchange value, by reasoning that—because the owner’s con-

sent is necessary—the “conclusion is unreasonable.” Jd. The

Court of Appeals did not attempt the more difficult task of

explaining how the requirement for the owner’s consent to an

exchange made the exchange transaction different from any

other business transaction; consent is required just as much to

harvest and sell the timber as it is to exchange it.

The Court of Appeals also erred by reasoning that the

other timber prohibitions applicable to the public lands within

the Monument would make § 503(d) meaningless only if they

prohibited harvesting on public lands “expressly or by refer-

ence to another statute.” Jd. There is no support for this novel

cannon of statutory construction.

This Court should grant the writ to resolve the conflicting

reasoning used to interpret similar geographic designations in

the same statute (ANILCA) and in an analogous federal

conservation statute.

3. The Decision Below Directing Entry of Summary Judg-

ment, Sua Sponte, Against Petitioners Who Had No

Opportunity Before Either the District Court or the Court

of Appeals to Conduct Discovery or to Demonstrate That

There Were Disputed Issues of Material Fact, Conflicts

with Fountain v. Filson and Other Decisions of this Court

In the decision below the Court of Appeals moved sua

sponte to hold that the Corps’ environmental impact staternent

was fully adequate and that the decision to issue a permit for

Shee Atika’s log transfer facility was valid—even though these

issues included points which had been reserved by Petitioners in

their request for partial summary judgment, had not been

considered by the district court, and were the subject of an

outstanding affidavit filed by Petitioners pursuant to Rule

56(f), Fed. R. Civ. P. 803 F.2d at 1022, App. A-12. The

decision of the Court of Appeals conflicts with Fountain v.

Filson, 336 U.S. 681 (1949), and with the underlying reasoning

of other decisions of this Court following the same principles.

The decision raises important questions about the proper

standards to be followed by the Courts of Appeals in reviewing

grants of summary judgment, and the appellate courts’ appro-

priate role vis-a-vis the traditional fact-finding function of the

district courts. Both the holding and the reasoning of the

decision below so far depart from accepted precedent as to call

for the exercise of this Court’s supervisory power.

A. The Decision Below Raises Serious Implications for

the Use of Summary Judgment and Calls for an

Exercise of this Court’s Power of Supervision

In the decision below, the Court of Appeals was faced with

a single issue concerning the adequacy of the Corps’

EIS—whether the Corp’s failure to consider the alternative of a

land exchange rendered the EIS inadequate under NEPA.'®

The Court of Appeals found that the alternative was not a

reasonable one and reversed the district court’s grant of partial

summary judgment on this issue. Rather than remanding

however, the Court of Appeals took a quantum leap forward

and decided, sua sponte, that there were no issues of material

fact remaining with regard to Petitioners’ other NEPA claims,

and that Respondents were entitled to entry of summary

judgment on the adequacy of the EIS and the validity of the log

transfer facility permit.

In a single stroke, the Court of Appeals disposed of

Petitioners’ case without any notice of its intent to do so. The

Court of Appeal’s decision conflicts with the established case

18 Once the EIS was found inadequate, the Corps’ permits were neces-

sarily invalid.

law of this Court concerning the role of appellate courts and the

opportunity for a party to be heard.'9 Most importantly, the

decision raises such serious implications for the future of Rule

56 and so far departs from the accepted and usual course of

judicial proceedings, as to call for an exercise of this Court’s

power of supervision. 2°

Summary judgment is a crucial procedural device which

allows the Federal judiciary to “isolate and dispose of factually

unsupported claims or defenses,” Celotex v. Catrett, 106 S. Ct.

2548, 2553 (1986). “Summary judgment procedure is properly

regarded not as a disfavored procedural shortcut, but rather as

19 Hammond v. Schappi Bus Line, 275 U.S. 164 (1927); Hormel v.

Helvering, 312 U.S. 552 (1941); Fountain v. Filson, 336 U.S. 681 (1949);

Weade v. Dichmann, Wright & Pugh, Inc., 337 U.S. 801 (1949); DeMarco v.

United States, 415 U.S. 449 (1974); Singleton v. Wulff, 428 U.S. 106 (1976);

Moses H. Cone Memorial Hospital v. Mercury Construction Co., 460 US. |

(1982); Pullman-Standard v. Swint, 456 U.S. 273 (1982).

20 In contrast to what the court stated (that “review of the adequacy of

an EIS is a legal question”) and what the court did (enter summary

judgment), 803 F.2d at 1022, App. A-12, the court did acknowledge the

correct standard for reviewing the adequacy of an EIS: § 706(2)(D) of the

Administrative Procedure Act, 5 U.S.C.A. § 706(2)(D). See e.g., Lathan v.

Brinegar, 506 F.2d 677, 692-93 (9th Cir. 1974) (en banc ); Northwest Indian

Cemetary Protection Association v. Peterson, 795 F.2d 688 (9th Cir. 1986).

The court erred, however, in its application of this standard when it

preempted petitioners’ right to discovery and an evidentiary hearing on these

remaining claims. An adequacy determination requires a “hard look” at the

facts—including the data and methodology that underlie an EIS. Citizens for

Balanced Environment and Transportation v. Volpe, 650 F.2d 455 (2d Cir.

1981); Johnston v. Davis, 698 F.2d 1088 (10th Cir. 1983). See also Massachu-

setts v. Andrus, $94 F.2d 872 (Ist Cir. 1979); Izaak Walton League of America

v. Marsh, 655 F.2d 346 (D.C. Cir. 1981); Township of Springfield v. Lewis, 702

F.2d 426 (3rd Cir. 1983); Sierra Club v. Sigler, 695 F.2d 957 ( Sth Cir. 1983);

Druid Hills Civic Association v. FHA, 772 F.2d 700 (llth Cir. 1985), cert.

denied, 454 U.S. 1092. Here petitioners were afforded no opportunity to

submit evidence about methodology and data. The appellate court’s sua

sponte determination that the EIS was “technically sophisticated and analyti-

cally rigorous,” 803 F.2d at 1020, App. A-8, 9, violates its duties under

§ 706(2)(D) and Fed. R. Civ. P. 56, and gives rise to the conflict presented

here.

On the other hand, if the Ninth Circuit’s holding is interpreted as

creating a new standard of review—one that precludes factually-based

challenges to the adequacy of an EIS or the decision to proceed with a

project—this also would present a conflict.

an integral part of the Federal Rules as a whole, which are

designed ‘to secure the just, speedy and inexpensive determina-

tion of every action.’” Jd. at 2555.

When misused, however, summary judgment procedures

can result in the sacrifice of justice at the expense of speed. It is

precisely because of the centrality of summary judgment to the

Federal Rules of Civil Procedure that the interests of litigants

who seek to invoke Rule 56’s procedures should not be lightly

cast aside. Whether proceeding by trial or by summary

disposition, due process requires that all litigants be afforded

notice and an opportunity to be heard. Anderson National

Bank v. Luckett, 321 U.S. 233, 246 (1944); Societe Inter-

nationale v. Rogers, 357 U.S. 197, 209 (1958).

Yet the manner in which the Court of Appeals has

proceeded here—directing summary judgment, sua sponte, on

issues not passed upon by the district court, without notice to

the parties, without any opportunity for discovery or the

submission of evidence, and in the face of a pending Rule 56( f)

affidavit—conflicts with these principles.2' If allowed to stand,

this decision will result in future litigants avoiding the use of

summary judgment to isolate and clarify their claims, for fear of

an unexpected decision on claims not yet ripe for full consid-

eration and rightfully not presented before the trial court for

summary disposition. The end result will be to defeat the very

purpose for which Rule 56 exists. See Indiana Port, 702 F.2d at

110.

Because of the profound impact such a development will

have on the thousands of litigants who yearly invoke the

jurisdiction of the Federal courts, and because the Ninth

Circuit’s resolution so directly conflicts with precedents of this

Court, the Court should grant the writ and exercise its super-

visOry powers.

21 Though perhaps less than clear from the language of the court’s

holding itself, it is cicar that the Court of Appeals was aware that it was

disposing of petitioners’ reserved NEPA claims when it denied petitioners’

motion for reconsideration.

B. The Decision Below Conflicts with this Court’s Hold-

ing in Fountain v. Filson

In Fountain v. Filson, 336 U.S. 681 (1949), the respon-

dents challenged the district court’s grant of summary judgment

to the petitioner on the issue of the existence of a resulting trust;

on appeal, the District of Columbia Circuit Court of Appeals

reversed the district court’s grant of summary judgment, and

proceeded sua sponte to direct entry of summary judgment for

the respondents on a related claim on which the district court

had not passed, and on which petitioner had had no opportu-

nity to present arguments or to dispute the facts. Petitioner’s

timely motion for a modification of the appellate court’s order,

to permit trial on the remaining claim, was denied. Upon

review, this Court held that the Court of Appeals’ sua sponte

grant of summary judgment for respondents on a new issue, as

to which the petitioner had had no opportunity to present a

defense or dispute the facts in the trial court, was in error.

Accordingly, the judgment of the Court of Appeals was rever-

sed, and the cause remanded to the district court for further

proceedings concerning issues not passed upon in that court.

As in Fountain, Respondents appealed from the district

court’s grant of partial summary judgment to Petitioners (on

the issue of the inadequacy of the EIS in light of its failure to

study the alternative of a land exchange). As in Fountain, the

Court of Appeals here not only reversed the district court’s

grant of summary judgment, but also, as in Fountain, pro-

ceeded sua sponte to direct summary judgment against Petition-

ers on their remaining claims. As in Fountain, these were

claims on which the district court had not passed, and on which

Petitioners had had no opportunity to present arguments or to

dispute the facts. Petitioners’ timely motion for reconsideration,

requesting a remand of the case for trial on the remaining

NEPA claims, was denied without opinion. The Court of

Appeal’s holding is in direct conflict with Fountain.

Following the same principles which underlie the holding

in Fountain, this Court has held on numerous occasions that

absent “exceptional cases... where injustice might otherwise

result,” Hormel, 312 U.S. at 556-57, where no issue remains and

the facts are undisputed, Turner v. City of Memphis, Tennessee,

369 U.S. 350, 353 (1962), or where “the proper resolution is

beyond any doubt,” Singleton, 428 U.S. at 2877, none of which

circumstances apply here, reviewing courts should not reach out

to find facts and make their own determination of questions not

passed upon in the courts below. Pullman-Standard, 456 U.S.

at 284-86, 291-93; Hammond, 275 U.S. at 171-72; Mercury

Construction Co., 460 U.S. at 29; Weade, 337 U.S. at 808;

DeMarco, 415 U.S. at 450.

These decisions rest in part upon deeply held notions about

the distinct responsibilities, and concomitant expertise, of trial

courts and reviewing courts. But they also rest upon concerns

that a party be allowed to present her case before being ushered

out of court. These latter concerns are particularly strong where

an appellate court acts sua sponte to dispose of a case or claim

by directing the entry of summary judgment, without notice to

the parties, and without the submission of briefs or argument.

Where the appellate court neither calls for briefing nor provides

notice of its intent to render a final judgment on a matter, and

where the district court has not previously passed on the matter,

the end result is disposition by surprise, without a full and fair

opportunity (indeed without amy opportunity) to be heard, as

due process requires. Hormel at 556-60. The decision below

conflicts with the principles of these cases.

C. The Decision Below Conflicts with Traditional Prin-

ciples of Summary Judgment Law

Even assuming, ad arguendo, that consideration by the

appellate court of petitioners’ outstanding NEPA claims was

proper in the absence of prior consideration of these claims by

the district court, and even assuming, ad arguendo, the prop-

riety of sua sponte grants of summary judgment by an appellate

court, the Ninth Circuit has failed to adhere to the most basic

standards of summary judgment law, and in so doing, has

contravened the spirit, purpose, and policies of Rule 56.

This Court has stated that summary judgment is appropri-

ate where the record before the court, together with any

affidavits submitted by the parties, shows clearly that there is no

genuine issue of material fact and that the moving party is

entitled to judgment as a matter of law. Celotex Corporation v.

Catrett, 106 S.Ct. 2548, 2552 (1986); Poller v. Columbia Broad-

casting System, 368 U.S. 464, 467 (1962). The Court is not to

weigh the evidence, but merely to determine that there are no

“genuine factual issues that can be resolved only be a finder of

fact.” Anderson v. Liberty Lobby, Inc., 106 S.Ct. 2505, 25ll

(1986). In carrying out this task, the Court is required to look

at the record as a whole, in the light most favorable to the party

opposing the motion.22 In the face of any doubt about the

existence of a factual dispute, summary judgment is to be

denied.23 The Ninth Circuit’s grant of summary judgment to

Respondents, without a ruling on their Rule 56(f) affidavit, is

in conflict with these principles.

In a series of three decisions decided last Term, this Court

addressed the standards to be applied under Rule 56(c) and

(e), noting that the party opposing a motion for summary

judgment may not rest on mere allegations in the complaint but

must set forth specific facts showing that there is a genuine issue

for trial. Anderson, 106 S. Ct. at 2511, 2514; Celotex, 106 S. Ct.

at 2553; Matsushita Electric Industrial Co., Ltd. v. Zenith Radio

Corporation, 106 S.Ct. 1348, 1356 (1986). This requirement, the

Court made clear:

in turn is qualified by Rule 56(f)’s provision that

summary judgment be refused where the nonmoving

party has not had the opportunity to discover infor-

mation that is essential to his opposition.

Anderson at 25ll n.5 (emphasis added). See also, Celotex at

2552-5; Anderson at 2514.

22 Bishop v. Wood, 426 U.S. 341, 347 n.ll (1976); Adickes v. S.H. Kress &

Co., 398 U.S. 144, 158-59 (1970); United States v. Diebold, 369 U.S. 654, 655

(1962); Poller, 368 U.S. at 473.

23 Lemelson v. TRW, Inc., 760 F.2d 1254, 1261 (Fed. Cir. 1985); Carlin

Communication v. Southern Beil, 802 F.2d 1352, 1356 (llth Cir. 1986); see

generally 10 Wright, Miller, and Kane, FEDERAL PRACTICE AND

PROCEDURE, Ch. 8, § 2716, at 643-46 (1983).

The Ninth Circuit’s entry of summary judgment for Re-

spondents on the adequacy of the EIS and the validity of the

LTF permit, in the face of petitioners’ outstanding Rule 56(f)

affidavit (which it had been unnecessary for the district court to

rule upon), is in conflict with these principles.

CONCLUSION

For the foregoing reasons, this Court should grant the writ

and reverse the decision of the Ninth Circuit.

Dated: April 10, 1987

* Counsel of Record

Respectfully submitted,

Durwoop J. ZAELKE, JR.*

Sierra Club Legal

Defense Fund, Inc.

1516 P Street, N.W.

Washington, D.C. 20005

(202) 667-4500

FREDERICK P. FURTH

JEFFREY A. GLICK

Furth, Fahrner, Bluemle

& Mason

201 Sansome Street

San Francisco, Cal. 94104

(415) 433-2070

Counsel for Petitioners

Of Counsel:

GAVIN S. APPLEBY

Lipsy C. BLACK

Paul, Hastings,

Janofsky & Walker

133 Peachtree Street, N.E.

Atlanta, Ga. 30303

(404) 588-9900

APPENDIX

TABLE OF CONTENTS

Appendix A —Decision of the United States Court of

Appeals for the Ninth Circuit, dated

October 31, 1986 A-1

Appendix B —Judgment, filed and entered Gender 31,

1986 B-1

Appendix C —Order of the Court (denying rehearing),

dated December |, 1986 C-1

Appendix D —Memorandum and Order on Remsining

Issues Raised in Consolidated Com-

plaint, dated November 26, 1986............. D-1

Apperdix E —Memorandum and Order on Subsistence

and Trust Responsibility Issues, dated

October 17, 1985.. E-1

Appendix F “hn — Judgment, dated December

1985...... ae

oe s .

Oe Det ah ee Siete ee See

A-|

APPENDIX A

Crry OF ANGOON, THE SIERRA CLUB,

THE WILDERNESS SOCIETY, ef al.,

Plaintiffs-Appellees,

Vv.

DONALD Hopk1, Secretary of the Interior, ef ai,

SHEE ATIKA, INC. and SEALASKA Corp.,

Defendants-Appellants.

Crry OF ANGOON, THE SIERRA CLUB,

THE WILDERNESS SOCIETY, ef al,

Plaintiffs-Appellants,

Vv.

DonaLpD Hopt1, Secretary of the Interior, et al,

Defendants,

and

SHEE ATIKA, INC.

Defendant- Appellee.

Nos. 85-4413, 86-3582, 86-3617 and 86-3618

United States Court of Appeals

NINTH CIRCUIT.

Argued and Submitted Sept. 3, 1986.

Decided Oct. 31, 1986.

A-2

‘ Frederick P. Furth, Jeffrey Glick, Furth, Fahrner, Bleumle

& Mason, San Francisco, Cal., for City of Angoon.

Durwood Zaelke, Sierra Club Legal Defense Fund, Inc.,

Washington, D.C., for Sierra Club.

F. Henry Habicht, II, Asst. Atty. Gen., Bruce Landon,

Atty., Dept. of Justice, Anchorage, Alaska, Robert L. Klarquist,

David C. Shilton, Dept. of Justice, Washington, D.C., for

- Federal defendants—appellants.

Jonathan K. Tillinghast, Stephen F. Sorensen, Birch, Hor-

ton, Bittner, Pestinger & Anderson, Juneau, Alaska, for Sea-

laska Corp.

Richard Anthony Baenen, Pierre J. LaForce, Wilkinson,

Barker, Knauer & Quinn, Washington, D.C., Jacquelyn R.

Luke, Middleton, Timme & McKay, Anchorage, Alaska, for

Shee Atika, Inc.

ee et ee ee eee

A-3

APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE DISTRICT OF ALASKA

Before SNEED, KENNEDY, and WIGGINS, Circuit Judges.

PER CURIAM:

Appellants appeal from a partial summary judgment in-

validating a permit for the construction and operation of a log

transfer facility on Admiralty Island and enjoining its use.

Jurisdiction to hear this appeal is provided by 28 U.S.C.

§ 1292(a)(1). The district court held that the environmental

impact statement (EIS) prepared in connection with the permit

was inadequate under the National Environmental Policy Act

of 1969 (NEPA), 42 U.S.C. $§ 4321-4370a, because it failed

to consider an alternative whereby the land on Admiralty

Island could be exchanged for land elsewhere. Appellees cross-

appeal from the district court’s dismissal of their claims that

proposed timber harvesting on Admiralty Island violates the

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

$§ 1601-1629a, and the Alaska National Interest Lands Con-

servation Act (ANILCA), Pub. L. No. 96-487, 94 Stat. 2371

(1980) (codified as amended in scattered sections of 16 and 43

U.S.C.). Jurisdiction to hear this appeal is provided by 28

U.S.C. $1291.

We reverse the district court’s judgment invalidating the

permit and enjoining use of the log transfer facility. We affirm

in all other respects.

FACTS AND PROCEEDINGS BELOW

Appellants, defendants below, are Shee Atika, Inc. (Shee

Atika), an Alaska Native Village Corporation that claims a

surface estate in some 23,000 acres of Admiralty Island;

Sealaska Corporation (Sealaska), an Alaska Native Regional

Corporation that owns subsurface rights in land owned by Shee

Atika; federal officials in the Department of the Army who issue

A-4

permits under section 404 of the Clean Water Act, 33 U.S.C.

§ 1344, and section 10 of the River and Harbor Act of 1899, 33

U.S.C. § 403; and other federal officials who administer laws

relating to Native Americans. We refer to appellants collec-

tively as Shee Atika-Sealaska.

Appellee cross-appellants, plaintiffs below, are the City of

Angoon ( Angoon), the only permanent settlement on Admiral-

ty Island; the Sierra Club, and the Wilderness Society, both

national conservation organizations. We refer to appellees

collectively as Sierra-Angoon.

This litigation is the latest episode in a twelve-year struggle

which reflects badly upon the ability of the three branches of

the federal government to resolve disputes reasonably ex-

peditiously. It is a struggle in which Shee Atika attempts to

realize economic benefits from the settlement of its aboriginal

claims under ANCSA. ANCSA authorized the Secretary of the

Interior (Secretary) to convey to Shee Atika a surface estate in

some 23,000 acres of land. 43 U.S.C. § 1613(h)(3). In

exchange, the Native shareholders of Shee Atika relinquished

all their aboriginal claims.

In 1975, Shee Atika designated lands in the southwest

portion of Admiralty Island for the exchange. The Sierra Club

and Angoon immediately contested the conveyance. The Sierra

Club wishes to protect the wilderness character of Admiralty

Island. The President and Congress recognized the island’s

ecological importance by designating 920,000 of its 1.2 million

acres as a national monument. Presidential Proclamation No.

4611, 3 C.F.R. 69 (1978); ANILCA, § 503(b), 94 Stat. 2371,

2399 (1980). Angoon is afraid that timber harvesting will

disrupt the traditional subsistence culture of its 500 Tlinget

Indian inhabitants.

Responding to pressure, Shee Atika agreed to exchange its

land in the southwest of Admiralty Island for land in the

northwest of the island. Its new selection is farther from

Angoon and was rated environmentally less sensitive by the

United States Forest Service. Excerpt of Record (E.R.) at 145.

Congress approved the exchange in section 506(c) of

ANILCA, 94 Stat. 2371, 2409.

vom

SCE

A-5

The Sierra Club and Angoon challenged the new con-

veyance both before the Department of the Interior and in

district court. The Sierra Club also filed a notice of lis pendens

in the Alaska land records, which prevented Shee Atika from

obtaining commercial financing for its timber development

plans. Congress responded by enacting section 315 of the

Interior Appropriations Act, Pub. L. No. 97-394, 96 Stat. 1998

(1983), which confirmed the conveyance to Shee Atika “‘in all

respects.” '

The Sierra Club and Angoon returned to district court to

protest Shee Atika’s plans to harvest timber on its land. They

objected to the permit issued by the Army Corps of Engineers

(Corps) for a log transfer facility on the ground that the Corps

had not prepared an EIS as required by NEPA, 42 U.S.C.

§ 4332. The Corps suspended the permit in March, 1983

pending completion of an EIS. Shee Atika nevertheless har-

vested timber during the spring of 1983, moving the logs by

means less efficient than a log transfer facility. The Sierra Club

and Angoon interrupted this activity by obtaining a preliminary

injunction against timber harvesting. They claimed, and the

district court agreed, that ANILCA prohibits timber harvesting

on Shee Atika’s land because it is located within a national

monument.

Shee Atika appealed to this court, and we vacated the

preliminary injunction. City of Angoon v. Marsh (Angoon !),

749 F.2d 1413 (9th Cir. 1985). From the language and

legislative history of ANILCA, we concluded that Congress did

not intend to prohibit timber harvesting on private land located

' This was not Congress’ last word on the subject. On January 9, 1986,

Congress passed section 2(b) of Pub. L. No. 99-235, 99 Stat. 1761 (1986),

which authorized the Secretary of the Interior to negotiate an agreement with

Shee Atika under which timber harvesting on Admiralty Island would cease.

On August 11, 1986, the House of Representatives passed the Admiralty

Island Exchange Act, which proposes a transfer of specified land in exchange

for Shee Atika’s Admiralty Island holdings. 132 Cong. Rec. H5810, H5816

(daily ed. Aug. 11, 1986). Senate action is imminent. These events took

place after this appeal was filed. Neither congressional action casts doubt on

Shee Atika’s rights in its Admiralty Island land. Rather, both propose

negotiating voluntary agreements with Shee Auka.

A-6

within national monuments. We also looked to the purpose of

ANCSA, which authorized the conveyance to Shee Atika to

settle its claims “in conformity with the real economic and

social needs of Natives,” 43 U.S.C. § 1601(b). It was “incon-

ceivable that Congress would have extinguished their aborigi-

nal claims and insured their economic well being by forbidding

the only real economic use of the lands so conveyed.” 749 F.2d

at 1418.

On remand the district court consolidated four cases

involving Shee Atika’s land. Sierra-Angoon filed a consoli-

dated complaint on April 29, 1985. They challenged the

original conveyance to Shee Atika of land on Admiralty Island.

They objected to the new permit for a log transfer facility which

the Corps had issued after completing an EIS. And they

protested all timber harvesting on Admiralty Island. Sierra-

Angoon based their claims variously on provisions of ANCSA,

ANILCA, NEPA, and the Clean Water Act; on the federal trust

responsibility owed to Angoon; and on the due process and

property clauses of the United States Constitution.

All parties moved for summary judgment. The district

court disposed of the motions in two orders dated October 17,

1985; in a third order dated November 27, 1985; and in a

partial final judgment dated December 27, 1985. The court

granted partial summary judgment for Sierra-Angoon on their

claim that the log transfer facility permit was invalid under

NEPA because the EIS did not study an alternative by which

Shee Atika could exchange its Admiralty Island land for land

elsewhere. The court granted partial summary judgment for

Shee Atika-Sealaska on all other claims, except a claim arising

under section 402 of the Clean Water Act, 33 U.S.C. § 1342,

which was still the subject of an administrative appeal.

As already indicated, Shee Atika-Sealaska appeal from so

much of the November 27 order as held that the EIS was

inadequate. Sierra-Angoon cross-appeal from so much of the

judgment of December 27 as dismissed three of their claims.

First, they claim that Congress conveyed the Admiralty Isiand

land to Shee Atika intending that Shee Atika exchange it for

land elsewhere and not use it for timber harvesting. Second,

A-7

they claim that Shee Atika’s land is subject to management

restrictions under section 22(k) of ANCSA, 43 U.S.C.

§ 1621(k). Third, they challenge timber harvesting on Admi-

ralty Island because certain federal agencies failed to prepare

subsistence evaluations required by section 810 of ANILCA, 16

U.S.C. § 3120, and because the Secretary of the Interior failed

to protect access to subsistence resources under section 811 of

ANILCA, 16 U.S.C. § 3121.

IL.

STANDARD OF REVIEW

This court reviews de novo a trial court’s grant of summary

judgment. Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir

1986). The standard used by the trial court under Fed. R. Civ.

P. 56(c) thus governs the appellate court’s review. This court

determines, viewing the evidence in the light most favorable to

the nonmoving party, whether there are any genuine issues of

material fact and whether the district court correctly applied the

relevant substantive law. Id.

Ii.

NATIONAL ENVIRONMENTAL POLICY ACT

It has been said many times that NEPA is an “essentially

procedural” statute. Vermont Yankee Nuclear Power Corp. v.

Natural Resources Defense Council, Inc., 435 U.S. 519, 558, 98

S.Ct.1197, 1219, 55 L.Ed.2d 460 (1978). We enforce NEPA

under our authority to “hold unlawful and set aside agency

action, findings, and conclusions found to be . . . without

observance of procedure required by law,” Administrative

Procedure Act, 5 U.S.C. § 706(2)(D). Lathan v. Brinegar, 506

F.2d 677, 692-93 (9h Cir. 1974) (en banc). One of the

procedures prescribed by NEPA is that:

all agencies of the Federal Government shall—

A-8

proposals for legislation and other major Federal actions

significantly affecting the quality of the human environ-

ment, a detailed statement by the responsible official on—

(i) the environmental impact of the pro-

posed action,

(ii) any adverse environmental effects

which cannot be avoided should the

proposal be implemented,

(iii) alternatives to the proposed action,

(iv) the relationship between local short-

term uses of man’s environment and

the maintenance and enhancement of

long-term productivity, and

(v) any irreversible and irretrievable com-

mitments of resources which would be

involved in the proposed action

should it be implemented.

42 U.S.C. § 4332(2).

This “detailed statement” is the EIS. The present case

specifically tests the requirement that an EIS discuss “alterna-

tives to the proposed action.” In applying this requirement, we

employ a “rule of reason” in judging whether the agency

described “those alternatives necessary to permit a ‘reasoned

choice.’” California v. Block, 690 F.2d 753, 767 (9th Cir.

1982) (citations omitted ). [T]he touchstone for our inquiry is

whether an EIS’s selection and discussion of alternatives fosters

informed decision-making and informed public participation.”

Id. In particular, an EIS need not consider “remote and

speculative” alternatives whose effects cannot be readily ascer-

tained. Vermont Yankee, 435 U.S. at 551, 98 S.Ct. at 1215

(quoting Natural Resources Defense Council, Inc. v. Morton,

458 F.2d 827, 837-38 (D.C. Cir. 1972); see Life of the Land v.

Brinegar, 485 F.2d 460, 472 (9th Cir. 1973), cert. denied, 416

U.S. 961, 94 S.Ct. 1979, 40 L.Ed.2d 312 (1974).

Before reissuing the permit for the log transfer facility, the

Corps spent nineteen months preparing an EIS that is over 120

pages long, exclusive of maps, diagrams, and appendices. E.R.

at 139. The EIS is technically sophisticated and analytically

ee in ba beranc bie nea

ft ian Aelia ED 1 PRB santa HEM

pita eh ius,

A-9

rigorous. It describes seven alternatives. One, the “no-action”

alternative, considers the effects of denying the permit. The

other six alternatives involve different ways of transferring logs

either to the water for transport or directly on to vessels. The

Corp finally approved an alternative that differs slightly from

Shee Atika’s original proposal. In addition, the Corps imposed

twelve special conditions on the permit in order to mitigate

adverse environmental effects. E.R. at 340-42.

The heart of the Sierra-Angoon argument is that the EIS is

inadequate because it does not consider in detail the alternative

that Shee Atika could exchange its Admiralty Island holdings

for land elsewhere. In fact, the Corps adverted to this

possibility, but decided not to develop it at length. First, the

Corps observed that an exchange would not satisfy the purpose

for which Shee Atika sought the permit: “safe, cost effective

means of transferring timber harvested on their land to mar-

ket.” E.R. at 163. Second, the Corps reasoned that the

exchange alternative was remote and speculative because it was

contingent on congressional action and had not been reduced to

a specific proposal. Jd. at 153, 170. Third, the Corps noted

that, as far as it was concerned, the exchange alternative was

equivalent to the no-action alternative because it could do no

more to promote a trade. Jd. And the Corps doubted whether

it could properly withhold a permit in order to force Shee Atika

to consent to an exchange that it otherwise would have refused.

Id.

The district court considered and rejected each of the

Corps’ reasons for its abbreviated discussion of the exchange

alternative. The district court attacked the Corps’ statement of

the permit’s purpose. Purporting to rely on the Corps’ regu-

lations, the district court restated the purpose in terms of a

broad, generic public benefit: “commercial timber harvesting.”

E.R. at 55. But the Corps’ regulations recognize that “every

application has both an applicant’s purpose and need and a

public purpose and need.” 33 C.F.R. Part 230, App. B

(11)(b)(4) (1985). The regulations, however, specify that —

“(t}he EIS shall document a reasonable number and range of

alternatives which would satisfy the purpose and need (as

A-10

described in paragraph (11)(b)(4) above) for which the

applicant has submitted his proposal.” Jd. at (11)(b)(5)(b).

The Corps characterized the relevant “purpose and need” as

providing a “safe, cost effective means of transferring timber

harvested on [Shee Atika’s] land to market,” E.R. at 163, a

purpose broader than constructing a specific log transfer facility

at a designated location in Cube Cove, as Shee Atika requested.

The district court erred when it adopted as the “purpose and

need” the even broader concept “commercial timber harvest-

ing.” This formulation appears to make a broad social interest

the exclusive “purpose and need.” The Corps’ statement is

more balanced. We have said before, “The preparation of [an

EIS] necessarily calls for judgment, and that judgment is the

agency’s.” Lathan v. Brinegar, 506 F.2d at 693.

Acceptance of the Corps’ statement of purpose makes

consideration of the exchange alternative irrelevant. See Trout

Unlimited v. Morton, 509 F.2d 1276, 1286 (9th Cir. 1974).

When the purpose is to accomplish one thing, it makes no sense

to consider the alternative ways by which another thing might

be achieved. .

However the permit’s purpose is characterized, the ex-

change alternative is too remote and speculative. Congress

explicitly conveyed the Admiralty Island land to Shee Atika,

and Congress would have to authorize any substitute con-

veyance made in exchange. Shee Atika would have to consent.

Should the tract to be exchanged be quite valuable, Congress

might refuse to offer it; if it is less valuable, Shee Atika might

refuse to accept it. To require the Corps to select one or more

tracts for exchange which, in its view, might induce both an

offer and acceptance is to visit upon it a task that would involve

almost endless speculation.

It is true that the fact that an alternative requires legislative

action does not automatically justify excluding it from an EIS.?

The alternatives, however, must be ascertainable and reason-

21f an alternative requires congressional action, it will qualify for

inclusion in an EIS only in very rare circumstances. In Natural Resources

Defense Council, Inc. v. Morton, 458 F.2d 827 (D.C. Cir. 1972), the Court of

(footnote continues)

ene TE a eine Wel Bie “it +

IAL i mise eo

A-11

ably within reach. Neither condition clearly was met when the

EIS was prepared. Sierra-Angoon had not offered a specific,

detailed counterproposal that had a chance of success. Those

who challenge an EIS bear a responsibility “to structure their

participation so that it is meaningful, so that it alerts the agency

to the intervenors’ position and contentions.” Vermont Yankee,

435 U.S. at 553, 98 S.Ct. at 1216. Sierra-Angoon did not meet

this responsibility. See Friends of the Earth v. Coleman, 513

F.2d 295, 298 (9th Cir. 1975) (upholds district court decision

that EIS did not have to consider alternative sites as sources of

fill, where plaintiffs failed to allege specific evidentiary facts

showing that the alternative sites were reasonable and viable);

Seacoast Anti-Pollution League v. Nuclear Regulatory Comm'n,

598 F.2d 1221, 1231 (1st Cir. 1979) (where petitioners fail to

present supporting material, agency need not consider alterna-

(footnote continued)

Appeals for the District of Columbia Circuit held an EIS inadequate for

failing to consider elimination of oil import quotas as an alternative to the sale

of general oil and gas leases of tracts on the outer continental shelf. Jd at

834-36. The court recognized that this alternative was outside the jurisdiction

of the Department of the Interior, which prepared the EIS, and would require

the President and Congress to act. But it observed that the lease sale was part

of a coordinated plan to deal with the energy crisis, for which plan no

programmatic EIS had been prepared. If each agency involved in the plan

construed its alternatives narrowly, no EIS would address the environmental

consequence of the fundamental policy choices. Jd. at 835. Furthermore, the

Department of the Interior could readily identify the environmental con-

sequences of reducing oil import quotas. Jd. at 837; see id. at 835-836.

In the case before us, the disputed permit is not part of a broader

coordinated plan. Nor is the Corps well-placed to identify the environmental

consequences of land exchanges and consequent timber harvesting elsewhere.

Finally, Congress’ decision to grant land on Admiralty Island to Shee Atika is

recent, specific, and unlikely to be reversed (absent Shee Atika’s consent).

“[I]n deciding whether an alternative is reasonable, we may certainly take

into account the strength and vitality of legislation that forbids it.” Kilroy v.

Ruckeishaus, 738 F.2d 1448, 1454 (9th Cir. 1984) (EIS need not consider

alternative of discharging sewage sludge through ocean outfalls where

Congress recently prohibited such disposal); see Izaak Walton League of Am.

v. Marsh, 655 F.2d 346, 372 (D.C. Cir.) (once Congress authorizes specific

dam and lock project, obligation to discuss alternatives is narrow), cert.

denied sub nom. Atchison, T. & S.F. Ry. Co. v. Marsh, 454 U.S. 1092, 102 S.Ct.

657, 70 L.Ed.2d 630 (1981).

A-12

tive sites for nuclear power plant). It follows, of course, that

Sierra-Angoon has not demonstrated that timber harvesting at

an alternative location would be environmentally less harmful

than timber harvesting on Admiralty Island. Nor can the

Corps make this determination until an exchange becomes

ascertainable. Until then, the consequences of an exchange are

remote and speculative.

Our position draws support from the fact that since 1979,

the federal government has been negotiating with Shee Atika

without success for an exchange of the Admiralty Island land.

We should not hold a log transfer facility as a hostage to

facilitate the resolution of this intractable controversy. Shee

Atika’s need to benefit economically from ANCSA is urgent.

43 U.S.C. §1601(b). To defer meeting this need while the

Corps considers alternatives that none unilaterally can bring

to pass would more resemble coercion than justice. The

Corps properly eschewed development of a detailed exchange

- alternative.

Therefore we conclude that the EIS in issue here was

adequate because it discussed all the alternatives that were

reasonably necessary to enable the Corps to make an informed

decision to grant the log transfer facility permit. We reverse the

district court’s judgment insofar as it invalidates the permit and

enjoins use of the log transfer facility. Because the adequacy of

an EIS is a legal question and no issue of material fact remains,

we direct summary judgment for Shee Atika-Sealaska on the

issue of the validity of the log transfer facility permit.

3In this regard, it is significant that the Sierra Club opposes, on

environmental grounds, the federal government’s most recent exchange

proposal, H.R. 4883.

A-13

IV.

CONVEYANCE-FOR-EXCHANGE

Cube Cove was conveyed to Shee Atika and Sealaska by

section 506 of ANILCA, 94 Stat. at 2409-12, which provides in

relevant part:

(c)(1) In satisfaction of the rights of the Natives of

Sitka, as provided in section 14(h)(3) of the Alaska

Native Claims Settlement Act, the Secretary of the

Interior, upon passage of this Act, shall convey subject

to valid existing rights and any easements designated

by the Secretary of Agriculture, the surface estate in

the following described lands on Admiralty Isiand to

Shee Atika, Incorporated:

[description of the Cube Cove land].

Concurrently with this conveyance, the Secretary shall

convey the subsurface estate in the above described

land to Sealaska, Incorporated. As a condition to such

conveyances, Shee Atika, Incorporated, shall release

any claim to land selections on Admiralty Island other

than those lands described in this subsection [and

Sealaska shall release any corresponding subsurface

rights}.

(d) In recognition of the considerable land selection

costs incurred by Shee Atika, Incorporated [and two

other Native Corporations], in determining the valid-

ity of land withdrawals on Admiralty Island under

section 14(h)(3) of the Alaska Native Claims Settle-

ment Act, and in identifying suitable lands for ex-

change outside Admiralty Island, the Secretary of the

Interior shall reimburse those corporations for such

reasonable and necessary land selection costs, in-

cluding all costs for negotiating land exchanges, court

costs, and reasonable attorney’s and consultant’s fees,

incurred prior to the date of conveyance of such land

to such Native Corporations.

eT ee ee ee ce

MRR De Sa tip lam al ak eS on ee hn the

A-14

Sierra-Angoon assert that the Cube Cove land was con-

veyed to Shee Atika solely as a bargaining tool for a future

exchange with the Department of the Interior for other land,

and not for the purpose of timber harvesting at Cube Cove

itself.

Sierra-Angoon’s only support for this assertion are some

ambiguous, off-hand remarks of Senators in the uncorrected

transcript of a Senate Committee mark-up session on ANILCA.

Markup Session on S.9, Alaska Lands, Transcript of Proceed-

ings, Senate Committee on Energy & Natural Resources, 96th

Cong., Ist Sess. 531, 533, 534, 541 (1979). Shee Atika-

Sealaska dispute the accuracy of the mark-up comments and

offer lengthy and persuasive legislative history indicating that

the conveyance was not for exchange purposes only. They

particularly point out ANILCA § 1302(b), 16 U.S.C.

§ 3192(b), which provides that “[1]ands located within the

boundaries of a conservation system unit which are owned by ..

. a Native Corporation or Native Group which has Natives as a

majority of its stockholders... may not be acquired by the

Secretary without the consent of the owner.”

Sierra-Angoon’s lack of support is telling, because the

conveyance-for-exchange is Sierra-Angoon’s major argument in

the appeal, and many of the other arguments rely on this one.

Most of the restrictions on the use of the Cube Cove land that

Sierra-Angoon now urge would defeat any other purpose the

conveyance might serve. Only if the conveyance was purely for

the purpose of a future exchange are these restrictions com-

patible with it. We refuse to attribute to Congress the purpose

to place such restrictions on land-use absent a clear expression

of intent. In light of the history and context of section 506(c),

we find the conveyance to Shee Atika was not for purpose of

exchange only.

Sierra-Angoon argue at length that section 503(d) of

ANILCA, 94 Stat. at 2400, should be applied to prevent timber

harvesting on the Cube Cove iands. Section 503(d) provides:

Within the Monuments, the Secretary shall not permit

the sale of [sic] harvesting of timber: Provided, That

A-15

nothing in this subsection shall prevent the Secretary

from taking measures as may be necessary in the

control of fire, insects, and disease.

Except for the Cube Cove inholding, Admiralty Island consists

entirely of public lands. Sierra-Angoon argue that logging is

already prohibited on the public lands on Admiralty Island by

virtue of sections 503(b), (c), and (f)(1), relying on “common

sense” readings of the sections (i.e., the establishment of a

Monument, the provision for its protection, and the withdrawal

of the land from disposition imply that the land will not be

logged). Subsection (d) must therefore apply to the Cube

Cove inholding, Sierra-Angoon argue, or the subsection is

superfluous. As Shee Atika-Sealaska point out, however, none

of the other sections cited prohibits timber harvesting, either

expressly or by reference to another statute. Cf. 16 U.S.C.

§ 472a(a) (timber harvesting not per se prohibited in National

Monuments ).

Sierra-Angoon also argue that their interpretation of sec-

tion 503(d) is compelled by the “underlying protective pur-

poses” of ANILCA. See Southeast Alaska Conservation Coun-

cil, Inc. v. Watson, 697 F.2d 1305, 1309 (9th Cir. 1983). They

cite a number of restrictions on the uses of the public lands on

Admiralty Island and argue that allowing Shee Atika unre-

stricted use of the remainder of the island is anomalous. They

also cite a number of restrictions on private land use involving

other national preserves and monuments.

All of these are arguments the court considered in Angoon

I, 749 F.2d at 1415-18.4 The court considered the legislative

history and the purpose of ANILCA and held that reading

section 503(d) to prohibit logging on the Cube Cove inhoilding

4 Shee Atika urges us to treat Angoon I as law of the case on these issues

and others. Amgoon I was an interlocutory appeal from a preliminary

injunction. “As a general rule, decisions on preliminary injunctions do not

constitute law of the case and ‘parties are free to litigate the merits.’” Golden

State Trans. Corp. v. City of Los Angeles, 754 F.2d 830, 832 n.3 (9th Cir.

1985) (quoting City of Anaheim v. Duncan, 658 F.2d 1326, 1328 n.2 ( 9th Cir.

1981)), rev'd on other grounds, U.S , 106 S.Ct. 1395, 89 L.Ed.2d

616 (1986). We will not depart from our general rule in this case. But our

independent consideration of the issues leads us to approve the conclusions

reached in Angoon I.

A-16

would forbid the land’s only real economic use and defeat the

purpose of section 506(c)’s conveyance of the land. The court

therefore concluded that section 503(d)’s prohibition against

the harvest of timber “within the Monument[ ]” applied only

to public lands within the Monument and not to Shee Atika’s

private land. Jd. at 1418.

Sierra-Angoon appear to raise one new argument that was

not addressed by the Angoon I panel. They argue that timber

harvesting is not the only economically feasible use of the Cube

Cove land. Sierra-Angoon claim that the Cube Cove land has

value that can be realized by exchanging the Cube Cove land

for other land that would presumably h .- more direct utility.

Sierra-Angoon note that the government may trade lands of

equal or even greater value for the Shee Atika land, see

ANILCA § 1302(h), 94 Stat. at 2475; ANCSA § 22(f), 43

U.S.C. § 1621(f), and that many Native Corporations have

made such exchanges at premiums as high as thirty percent.

This argument is in essence identical to Sierra-Angoon’s

argument that Congress conveyed the Cube Cove inholding to

Shee Atika solely for the purpose of a future exchange. If

Congress intended the conveyance to confer an economic

benefit on Shee Atika and at the same time in section 503(d)

prohibited Shee Atika from logging, then Congress must have

conveyed the Cube Cove inholding solely for the purpose of

exchange. As discussed above with regard to section 506(c)

itself, the provision for voluntary exchange makes this con-

clusion unreasonable.

Sierra-Angoon next argue that, even without section

503(d), section 503(c) of ANILCA, 94 Stat. at 2399-400,

imposes a duty on the government to mitigate the effects of

any timber harvesting on Admiralty Island. Section 503(c)

provides:

Subject to valid existing rights and except as provided

in this section, the National Forest Monument: (here-

inafter in this section referred to as the “Monuments” )

shall be managed by the Secretary of Agriculture as

units of the National Forest System to protect objects

of ecological, cultural, geological, historical, pre-

historical, and scientific interest.

to hav acter ine Sica eee

fame sano dian

A-17

Sierra-Angoon cite a number of other specific statutes that

impose such duties on the government and court cases that

uphold the government’s power to perform them. Sierra-

Angoon then cite the “irreparable damage to the Monument”

that would result from timber harvesting at Cube Cove and

conclude that the Secretary is required to mitigate this harm.

The court concluded in Angoon J that such a reading of section

503(c) would inhibit the only economic benefit of the section

$06(c) transfer. This conclusion is still sound and we follow it

here.5

Vv.

DURATION OF HARVESTING

RESTRICTIONS

Sierra-Angoon also argue that timber harvest on the Cube

Cove inholding is subject to section 22(k) of ANCSA, 43

U.S.C. § 1621(k), which provides:

Any patents to lands under this chapter which

are located within the boundaries of a national forest

shall contain such conditions as the Secretary deems

necessary to assure that:

(1) the sale of any timber from such lands shall,

for a period of five years, be subject to the same

restrictions relating to the export of timber from

the United States as are applicabic to national

forest lands in Alaska under rules and regu-

lations of the Secretary of Agriculture; and

(2) such lands are managed under the principle

of sustained yield and under management prac-

tices for protection and enhancement of

5 Since we find the Secretary had no duty to m.dgate the harm caused by

the Cube Cove harvesting, we need not decide whether, as the Sierra Club

argues, the Secretary should have mitigated that harm by reserving easements

in Shee Atika’s grant under ANCSA § 17(b), 85 Stat. at 708.

A-18

environmental quality no less stringent than such

management practices on adjacent national for-

est lands for a period of twelve years.

The federal regulations implementing section 22(k) interpret

these time limits as running from the date of enactment ( Dec.

18, i971), and thus both time limits have now expired. See 43

C.F.R. § 2650.4-5 (1985). Sierra-Angoon argue that the

regulation misinterprets the statute. Because the patent must

contain the conditions, they argue, the plain language of the

statute requires that the conditions run from the date of

conveyance, not the date of enactment.

We will affirm the Secretary’s interpretation of section

22(k) if it is within the range of reasonable meanings of the

statute’s language and it comports with the statute’s purposes.

See Sudomir v. McMahon, 767 F.2d 1456, 1459 (9th Cir.

1985). Section 22(k) is itself silent about the date from which

the time periods are to run, and the remainder of the statute

makes Congress’ intent no clearer.

Sierra-Angoon cite a number of other provisions of

ANCSA that specify time periods that expressly begin on the

date of enactment, e.g., sections 2(c), 7(b), 12(c)(3), and

17(d)(2)(B) (43 U.S.C. $§ 1601(c), 1606(b), 1611(c)(3),

and 1616(d)(2)(B). They ask the court to infer that, by

failing to tie the section 22(k) time periods to the date of

enactment, Congress intended that the periods run from the

only other plausible date, the date of conveyance. This

inference is a weak one at best. Other provisions of ANCSA

contain similar ambiguous time limitations. The phrase “for a

period of five years” appears in a similar context in section

22(c), 43 U.S.C. § 1621(c), and we have construed that time

limitation to run from the date of enactment. Alaska Miners v.

Andrus, 662 F.2d 577 (9th Cir. 1981). Further, Sierra-Angoon

expect a degree of consistency that cannot be presumed in the

context of complex legislation such as ANCSA. The substance

of section 22(k) appeared for the first time as section 23(v) of

S.35 less than two months before final passage of ANCSA, and

achieved its present form during a hurried Senate floor debate

on the day the Senate passed its version of the bill. 117 Cong.

Rec. 38,465-66 (1971). The ambiguity appears to result more

from accident than design.

A-19

The legislative history is inconclusive. Sierra-Angoon rely

on the rejection on the Senate floor of an amendment to the

statute that would have explicitly started the time period from

the date of enactment. They cite the following exchange:

Mr. GRAVEL ....I wonder if we could dot the “‘i,”

and provide the 5 years would run from enactment of

this legislation. Would my colleague agree on that

point?

Mr. STEVENS. This would make it 5 years. That

could be discussed in conference.

117 Cong. Rec. 38,466 (1971) (remarks of Senators Gravel

and Stevens). The failure to “dot the ‘i” might at worst reflect

a disagreement about the application of section 22(k) that

Congress chose to leave to the Secretary to resolve, not a

“rejection” of an amendment. Cf. Chevron U.S.A., Inc. v.

Natural Resources Defense Council, Inc., 467 U.S. 837, 865,

104 S.Ct. 2778, 2793, 81 L.Ed.2d 694 (1984) (Congress can

leave to appropriate agency resolution of competing statutory

policies). Indeed, subsequent legislative history suggests con-

gressional acquiescence to 43 C.F.R. § 2650.4-5. In considering

ANILCA, Congress acknowledged the Secretary’s inter-

pretation of section 22(k), but did not see fit to overturn it. The

Senate report on ANILCA states that ANCSA “restricts the

management of lands conveyed from the national forests to

native corporations for 12 years. This 12-year period runs from

the date of [ANCSA] through December, 1983.” S. Rep. No.

413, 96th Cong., Ist Sess. 261-62 (1979), reprinted in 1980 U.S.

Code Cong. & Admin. News 5070, 5205-06.

The Secretary has the principal responsibility for adminis-

tering ANCSA and his interpretation is entitled to deference.

Doyon Ltd. v. Bristol Bay Native Corp., 569 F.2d 491, 496 (9th

Cir.), cert. denied, 439 U.S. 954, 99 S.Ct. 352, 58 L.Ed.2d 345

(1978). Sierra-Angoon urge us not to defer to the Secretary’s

interpretation because, they argue, the agency has not held a

consistent view of the statute. See, e.g., Skidmore v. Swift &

Co., 323 U.S. 134, 140, 65 S.Ct. 161, 164, 89 L.Ed. 124 (1944).

They note that two proposed versions of 43 C.F.R. § 2650.4-5

measured the section 22(k) time periods from the date of

A-20

conveyance, see 38 Fed. Reg. 6505-06 (1973); 37 Fed. Reg.

19,636 (1972), while the final regulation adopted time periods

from the date of enactment without explaining the change. But

the inconsistency the courts have frowned upon is in official

interpretations. To hold a final interpretation must be con-

sistent with draft regulations would deprive the rulemaking

process of flexibility, transforming proposed regulations into

official actions that agencies would be hesitant to reconsider.

See International Harvester Co. v. Ruckelshaus, 478 F.2d 615,

632 (D.C. Cir. 1973).

The Secretary’s interpretation is entitled to great deference

as a “longstanding contemporaneous administrative construc-

tion,” upon which interested persons are likely to have relied.

Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S.

102, 120, 100 S.Ct. 2051, 2062, 64 L.Ed.2d 766 (1980). Native

corporations that built facilities to service the “round log”

export market using timber from lands conveyed to them under

ANCSA may have relied upon 43 C.F.R. § 2650.4-5 for

assurances that their exports would be free of restriction. If we

were to read the section 22(k)(1) export restrictions as still

operative today, their investments could be impaired.

Sierra-Angoon urge us not to defer to the agency because

the interpretation issue requires no agency expertise. We

disagree. The Secretary’s interpretation of section 22(k)

involved a reconciliation of competing policies that entailed

“more than ordinary knowledge” of the regulated matters.

Chevron U.S.A., 467 U.S. at 844, 104 S.Ct at 2783 (quoting

United States V. Shimer, 367 U.S. 374, 382, 81 S.Ct. 1554,

1560, 6 L.Ed.2d 908 (1961). Congress intended ANCSA and

section 22(k) to accomplish several competing goals, including:

(1) to create viable, profitable Native Corporations, see

Ukpeagvik Inupiat Corp. v. Arctic Slope Regional Corp., 517 F.

Supp. 1255, 1262 (D. Alaska 1981); (2) to prevent “haphaz-

ard. and disjointed management” of forest lands until the

Native Corporations could develop their own management

plans to govern the tracts they selected, S. Rep. No. 405, 92d

Cong., Ist Sess. 164 (1971); (3) to prevent the Native Corpo-

rations from immediately selling off their resources to raise

A-21

capital the government would be providing them over the

ensuing ten years anyway, see 117 Cong. Rec. 46,965 (1971)

(remarks of Sen. Stevens); and (4) to cushion the blow to local

sawmills that relied on export restrictions applicable to timber

taken from Forest Service lands.

The Secretary’s interpretation furthered the creation of

profitable Native Corporations by lifting export restrictions at

an early date. It also limited “haphazard and disjointed

management” by setting a date certain for the expiration of the

time limits. Starting the time running from the date of

conveyance would result in a confusing, staggered set of limits,

especially for Native Corporations (such as Sealaska) that have

received different parcels at different times. It limited Native

exploitation of the lands for five years, the time period intended

to be required for federal distribution of the majority of the

money settlements; see ANCSA § 6(a), 43 U.S.C. § 1605(a).

And it gave the local timber industry breathing space during a

limited transitional period to prepare for the relaxation of

import restrictions. The Secretary’s interpretation should not be

disturbed unless it is unreasonable. See Chevron U.S.A., 467

US. at 844, 104S.Ct. at 2782. We find it to be consistent with

both the statute’s policies and its literal language.

SUBSISTENCE RIGHTS

Sierra-Angoon assert that section 810 of ANILCA, 16

U.S.C. § 3120, requires “subsistence- evaluations” of various

government actions: the Secretary’s conveyance of Cube Cove

to Shee Atika under section 506(c) of ANILCA; the issuance of

permits by the EPA and Corps for the log transfer facility under

sections 402 and 404 of the Clean Water Act, 33 U.S.C.

$$ 1342 and 1344; the Bureau of Indian Affairs’ loan to Shee

Atika; and the Forest Service’s “duty” pursuant to ANILCA

§ 503(c) and ANCSA § 22(k) to protect the monument lands.

Section 810(a) provides in relevant part:

In determining whether to withdraw, reserve, lease, or

otherwise permit the use, occupancy, or disposition of

A-22

public lands under any provision of law authorizing

such actions, the head of the Federal agency having

primary jurisdiction over such lands or his designee

shall evaluate the effect of such use, occupancy, or

disposition on subsistence uses and needs, the avail-

ability of other lands for the purposes sought to be

achieved, and other alternatives which would reduce

or eliminate the use, occupancy, or disposition of

public lands needed for subsistence purposes.

As the language indicates, this provision affects agency determi-

nation of “whether to lease or otherwise permit the disposition

of public lands.” Village of Gambell v. Clark, 746 F.2d 572, 579

(9th Cir. 1984). The district court concluded that the govern-

ment had taken no action affecting “public lands” and that

section 810(a) was therefore inapplicable.

Sierra-Angoon argue that the spillover effect of the private

use of Cube Cove on the subsistence use of the public lands on

the rest of Admiralty Island brings the government’s actions

within section 810(a). The government’s actions, they argue,

make the logging operation both possible (the conveyance)

and economically feasible (the log transfer facility permit, the

loan), and the logging operation in turn affects the public lands

of the monument. Sierra-Angoon urge the court to read section

810 broadly, see Gambell, 746 F.2d at 581, and to focus on the

actual effects on public lands of the government actions author-

izing use of private lands. Cf. Adler v. Lewis, 675 F.2d 1085,

1091-92 (9th Cir. 1982) (under 49 U.S.C. § 1653(f), highway

construction activities that significantly adversely affect public

park lands “use” the park lands).®

permits under sections 402 and 404 of the Clean Water Act, 33 U.S.C.

$§ 1342 and 1344, required a section 810 subsistence evaluation because these

determinations used “public land”: namely, a navigational servitude. “Pub-

lic land” is defined to include all interests in land in which the United States

holds title. ANILCA § 102(1)-(2), 16 U.S.C. §3102(1)-(2). Since the

United States does not hold title to the navigational servitude, the servitude is

not “public land” within the meaning of ANILCA. See United States v.

(footnote continues)

A-23

Even if we were to read “public lands” this broadly,

however, subsistence evaluations would not be required here

for several reasons. First, none of the agencies Sierra-Angoon

cite has “primary jurisdiction” over the public lands used for

subsistence, as required by section 810. Second, the agency that

does have such jurisdiction, the Department of Agriculture, has

taken no action regarding the Cube Cove land that would

invoke section 810. Cf. Alaska v. Andrus, 591 F.2d 537, 540

(9th Cir. 1979) (inaction insufficient to require an EIS under

NEPA). In addition, other provisions of ANILCA tend to belie

the applicability of section 810 to private lands. E.g., ANILCA

§ 802(3), 16 U.S.C. §3112(3) (“Federal land managing

agencies .. . shall cooperate with adjacent landowners and land

managers, including Native Corporations ....”); id § 810(d),

16 U.S.C. § 3120(d) (“After compliance ..., the head of the

_appropriate Federal agency may manage or dispose of public

lands under his primary jurisdiction... .”).

It seems likely that, as Sierra-Angoon argue, a subsistence

evaluation of the government’s Cube Cove actions would be

beneficial and consistent with the purpose of ANILCA. The

plain language of the statute, however, cannot fairly be read to

require such an evaluation for actions regarding private lands.

Sierra-Angoon argue strenuously that they are not advocating

regulating private lands but only spillover “use” of public land.

This seems a distinction without a difference. We affirm the

district court’s holding that section 810 is inapplicable to Shee

Atika’s use of Cube Cove.

(footnote continued)

Virginia Elec. & Power Co., 365 U.S. 624, 627-28, 81 S.Ct. 784, 787-88, 5

L.Ed.2d 838 (1961) (servitude is “power of government to control and

regulate navigable waters in the interest of commerce”) (quoting United

States v. Commodore Park, 324 U.S. 386, 390, 65 S.Ct. 803, 805, 89 L.Ed

1017 (1945)). For similar reasons, the Secretary was not required to perform

a section 810 evaluation prior to transferring the Cube Cove lands to Shee

Atika. Cube Cove is simply not “public land.” See ANILCA $$ 102(3)(B)

and 810(c), 16 U.S.C. $§ 3102(3)(B) and 3120(c).

A-24

Sierra-Angoon also claim that Shee Atika’s activities will

violate the Angoon residents’ rights to continued subsistence

uses of Admiralty is!and under section 506(a)(2) of ANILCA,

94 Stat. at 2407. Section 506(a)(2) provides:

Nothing in this section shall affect the continuation of

the opportunity for subsistence uses by residents

of Admiralty Island, consistent with title VIII

[ANILCA 8§ 801-816, 16 U.S.C. §§ 3111-3126] of

this Act.

The district court found that section 506(a)(2) did not

apply to the conveyance to Shee Atika under section 506(c).

We agree. As used in the statute, “this section” refers only to

section 506(a), which granted other Admiralty Island lands to

a different Native Corporation, Kootznoowoo, Incorporated,

and not to the whole of section 506, which includes the grant to

Shee Atika. Each of subsections (a), (b), and (c) of section

506 involves a separate Native Corporation and is independent

of the others. Subsection 506(a)(2) is placed between two

other provisions, subsections 506(a)(1) and 506(a)(3), that

exclusively concern the Kootznoowoo grant. We conclude that

Congress intended subsection 506(a)(2) to apply only to the

Kootznoowoo grant.

Sierra-Angoon argue that “this section” is the whole of

section 506 and that the restrictions of 506(a)(2) are com-

patible with the conveyance to Shee Atika because the land was

conveyed for the purpose of exchange (discussed supra, section

IV). They also argue that section 506(a)(2) would be

superfluous if it did not apply to the Shee Atika inholding

because Angoon’s subsistence use of public lands is already

protected by sections 503(b), (c), and (f)(1), and title VIII.

Under our view that “this section” is only section 506(a),

however, the provision has meaning and yet does not affect the

Shee Atika conveyance.

In a similar vein, Sierra-Angoon argue that the protections

of section 506(a)({2) must be broader than those of title VIII or

the former is superfluous. However, Congress probably includ-

ed the phrase “consistent with title VIII” to ensure section

506(a) did not undermine ttle VIII, not to provide broader

protections.

A-25

Sierra-Angoon also assert that the Secretary breached his

duty under ANILCA § 811, 16 U.S.C. § 3121, to guarantee

residents of Angoon access to their subsistence lands. Section

811(a) provides:

The Secretary shall ensure that rural residents en-

gaged in subsistence uses shall have reasonable access

to subsistence resources on the public lands.

Sierra-Angoon assert that the Angoon residents’ traditional use

of Cube Cove as a point of access to the other public lands in

the Monument requires the Secretary to restrict Shee Atika’s

logging, road building, and other projects in Cube Cove to

accommodate that use. Although Shee Atika’s activities may

have some of the effects Sierra-Angoon assert, the language of

section 811(a) must be stretched a long way to allow—much

less require—the Secretary to restrict the use of private land to

assure access to subsistence resources on public lands. We

affirm the district court’s grant of summary judgment on this

issue.

VIL

CONCLUSION

In light of ANILCA’s grant of Cube Cove to Shee Atika,

the 1982 legislation confirming it, and the 1986 legislation

recognizing it, we hold Congress intended Shee Atika to have

the opportunity to harvest timber on the Cube Cove land and

not merely to be able to exchange it for another parcel. We

reverse the district court’s judgment invalidating the permit for

the construction and operation of the log transfer facility and

enjoining use of the facility. We affirm in all other respects.

REVERSED IN PART AND AFFIRMED IN PART.

B-1

APPENDIX B

United States Court of Appeals

FOR THE NINTH CIRCUIT

85-4413

86-3582

86-3617

NO. 86-3618

CV-83-234-JAVDH

Crry OF ANGOON, ef al.,

Plaintiffs-Appellees,

vs.

DONALD HODEL, et al,

Defendants-Appellants

APPEAL from the United States District Court for the

District of

Tus CAUSE came on to be heard on the Transcript of the

Record from the United States District Court for the

ANCHORAGE District of ALASKA and was duly submitted.

On CONSIDERATION WHEREOF, It is now ordered and

adjudged by this Court, that the judgment of

the said District Court in this Cause be, and hereby is,

REVERSED IN PART AND AFFIRMED IN PART.

ce: L. Gordon

D. Zaelke

B. Landon

J. Luke

J. Tillinghast

Judge von der Heydt

Filed and entered 10/31/86

C-1

APPENDIX C

IN THE

United States Court of Appeals

For THE NINTH CIRCUIT

Nos. 85-4413, 86-3582

86-3617, 86-3618

ORDER

Crry or ANGOON, THE SIERRA CLUB,

THE WILDERNESS SOCIETY, ef al,

Plaintiff’s- Appellees,

DONALD HopEL, Secretary of the Interior, et ai,

Defendants,

and

SHEE ATIKA, Inc.,

Defendant-Appellant,

and

SEALASKA Corp.,

Defendant-Appellant.

Before: SNEED, KENNEDY, and WIGGINS, Circuit Judges

Appellees Sierra Club/Angoon’s petition for rehearing is

denied. The mandate shall issue forthwith.

Dated: December 1, 1986

D-1

APPENDIX D

IN THE

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

Civil Action No. A83-234 Civ

Crry oF ANGOON, ef al,

Plaintiff,

» 2

DONALD P. HODEL, Secretary of the

Department of Interior, et al,

Defendants.

MEMORANDUM AND ORDER ON REMAINING

ISSUES RAISED IN CONSOLIDATED COMPLAINT

THis CAUSE comes before the court on the motions and

briefing of the parties directed to the following issues raised in

the Consolidated Complaint dated April 29, 1985:

(1) alleged violations of § 17(b) of the Alaska Native

Claims Settlement Act (ANCSA), Pub. L. No. 92-203, 85 Stat.

688 (1971);

(2) alleged violations of the Property Clause of the

United States Constitution;

(3) alleged violations of the Due Process Clause of the

United States Constitution;

(4) alleged violations of §§ 306, 402 and 404 of the Clean

Water Act (CWA), Pub. L. No. 92-500, 86 Stat. 816 (1972);

(5) alleged violations of the National Environmental

Policy Act (NEPA) §§ 101 and 102, Pub. L. No. 91-190, 83

Stat. 852 (1970).

D-2

Previous memoranda have addressed the subsistence, trust

responsibility, and ANCSA §22(k) issues raised by this

litigation.

1. ANCSA Section 17(b)

All three counts of the consolidated complaint allege

violations of ANCSA § 17(b); plaintiffs therefore assert that

the conveyance, the permits for timber operations, and the

timber operations themselves violate the section. Plaintiffs

concede in their brief that in regard to the Shee Atika con-

veyance § 17(b) must be read in conjunction with § 506(c) of

ANILCA. The relevant portions of these statutes are set out

below.

Section 17(a)(1) of ANCSA established the Joint

Federal-State Land Use Planning Commission for Alaska.

Section 17(b)( 1) required the Commission to

identify public easements across lands selected by

Village Corporations and the Regional Corporations

and at periodic points along the courses of major

waterways which are reasonably necessary to guaran-

tee international treaty obligations, a full right of

public use and access for recreation, hunting, trans-

portation, utilities, docks, and such other public uses

as the Planning Commission determines to be

important.

Section 17(b)(3) provided:

Prior to granting any patent under this Act to the

Village Corporation and Regional Corporations, the

Secretary shall consult with the State and the Planning

Commission and shall reserve such public easements

as he determines are necessary.

Pursuant to subsection (a)( 10), as amended, the life of the

Commission expired in 1979. Accordingly, Congress included

in the ANILCA provision authorizing the Shee Atika con-

veyance an instruction as to how the § 17(b) easements were to

be identified and protected:

In the instrument of conveyance provided for in

paragraph (1), the Secretary of the Interior shall

D-3

reserve such easements as are described in section

17(b)(1) of the Alaska Native Claims Settlement

Act, as the Secretary of Agriculture may designate for

public access to and utilization of the adjacent Federal

lands.

ANILCA §506(c)(2) (emphasis added). Finally,

§ 506(c)(1) described in the Cube Cove lands and provided

that

the Secretary of the Interior . . . shall convey subject to

valid existing rights and any easements designated by

the Secretary of Agriculture, the surface estate in

the ... described lands on Admiralty Island to Shee

Atika, Incorporated

(emphasis added).

Prior to ANILCA, the Secretary of the Interior had

authority, pursuant to ANCSA § 17(b)(3), to make decisions

regarding easements after consulting with the Commission and

the State. It would have been possible for the Secretary to

abuse his discretion in exercising this delegated authority.

ANILCA altered the ANCSA procedure in several respects in

connection with the Shee Atika conveyance. First, it transferred

consideration of the matters listed in ANCSA § 17(b)(1) from

the now-defunct Commission to the Secretary of Agriculture.

Second, it vested the Secretary of Agriculture with decision-

making authority, rather than with the merely advisory role the

Commission had occupied. Instead of evaluating § 17(b)(1)

recommendations submitted by the Commission, the Secretary

of the Interior was now given the purely ministerial duty of

incorporating in the conveyance any easement designated by

the Secretary of A-riculture. Moreover, the Secretary of the

Interior did not retain independent authority under § 17(b)(3)

to reserve easement in addition to those designated by the

Secretary of Agriculture. ANILCA § 506(a)(1) mandated the

conveyance that the Secretary of the Interior was to make, and

subjected that conveyance to no easements other than those

identified by the Secretary of Agriculture.’ Of course, the

1 Plaintiffs do not maintain, and apparently could not maintain, that any

of the easements they advocate could be characterized as “valid existing

rights” preserved under § 506(c)(1).

D-4

Secretary of the Interior “can reserve only what Congress

authorizes him to reserve.” Leo Sheep Co. v. United States, 570

F.2d 881, 888 (10th Cir. 1977), rev’d on other grounds, 440

U.S. 668 (1979); accord, e.g., Burke v. Southern Pacific R.R.,

234 U.S. 665, 699 (1914).

In short, the task of selecting easements for the Shee Atika

conveyance rested entirely with the Secretary of Agriculture.

No doubt the Secretary of Agriculture was obliged to select the

easements in compliance with any applicable provisions of

ANCSA and ANILCA, and it is conceivable that he failed to do

so.2 Plaintiffs’ remedy for any such failure, however, was

through an administrative appeal pursuant to 36 C.F.R.

§ 211.18 (formerly 36 C.F.R. § 211.19). Having failed to file

such an administrative appeal, plaintiffs may not now challenge

the selections of the Secretary of Agriculture.

Because they have not exhausted their administrative

remedies, Plaintiffs cannot maintain any of their three causes of

action under § 17(b) with respect to the Secretary of Agricul-

ture. Moreover, since the Secretary of Agriculture did not select

any easement inconsistent with the Clean Water Act permits for

the log transfer facility, the § 17(b) portion of the plaintiffs’

second claim must fail as to all defendants.

Review of the ministerial duty of the Secretary of the

Interior is properly before this court. The court has examined

the uncontroverted evidence of the Secretary of Agriculture’s

selection and the Secretary of the Interior’s conveyance. Each

of the fourteen trail easements and seven site easements has

been incorporated into the conveyance. Federal Defendants’

Exhibit HH; Shee Atika Motion to Dismiss at A-3 to A-6, A-11

2 After public hearings in Juneau and Angoon, the Secretary of Agricul-

ture selected fourteen 25-foot-wide trail easements with an aggregate length

of approximately ten miles, and seven one-acre cabin or campsite easements.

Federal Defendants’ Exhibit HH. The Cube Cove conveyance totals about 36

square miles.

3 The court observes that the Regional Forester was under the mistaken

impression that the selections were advisory. Federal Defendants’ Exhibit

HH, attached Environmental Assessment at page 1. Had the Department of

Agriculture held to this view, administrative appeal would have been denied.

36 C.F.R. §211.18(b)(3). Plaintiffs were nonetheless obliged to attempt the

appeal.

D-5

to A-12. Accordingly, all defendants are entitled to summary

judgment on the § 17(b) claims. See Ybarra v. Reno Thunder-

bird Mobile Home Village, 723 F.2d 675, 677 (9th Cir. 1984).

IL. Property Clause

Plaintiffs allege that the permits for timber operations and

the timber operations themselves “violate” Article [V, Section

3, Clause 2 of the Constitution, which reads:

The Congress shall have Power to dispose of and

make all needful Rules and Regulations respecting the

Territory or other Property belonging to the United

States; and nothing in this Constitution shall be so

construed as to Prejudice any Claims of the United

States, or of any particular State.

This clause is a grant of legislative authority. It does not create

rights or duties that could be violated. In their briefs, plaintiffs

explain that they allege violations of statutes enacted pursuant

to the Property Clause. Any such violations are violations of

those statutes, however; they are not violations of this Con-

stitutional provision. Plaintiffs’ allegations pursuant to the

Property Clause fail to state a claim upon which relief can be

granted.

IIL. Due Process Clause

The consolidated complaint alleges that the conveyance is

invalid because the Secretary’s procedures leading to its is-

suance violated plaintiffs’ right to due process. Whatever the

merits of this allegation as an original matter, it was mooted by

§ 315 of the Interior Appropriations Act of 1983, P.L. No. 97-

394, 96 Stat. 1966, 1998 (Dec. 30, 1982), which provides:

The titles conveyed by and the easements and restric-

tions heretofore reserved and imposed by the Secre-

tary of the Interior pursuant to section 506(c) of

Public Law 96-487 are hereby confirmed in all re-

spects: Provided, That nothing herein shall be deemed

to amend the Alaska National Interest Lands Con-

servation Act or the Alaska Native Claims Settlement

Act.

D-6

Congress has unlimited power under Article 4, Section 3,

Clause 2 of the Constitution to dispose of public lands as it sees

fit. United States v. City and County of San Francisco, 310 U.S.

16, 29-30 (1940); Kidd v. Dep’t of Interior, Bureau of Land

Management, 756 F.2d 1410, 1411-12 (9th Cir. 1985). If the

conveyance was defective owing to due process violations by

the Secretary of the Interior, then the Cube Cove lands

remained public lands when § 315 was enacted and Congress

used its plenary authority at that time to convey the lands to

Shee Atika under the terms of the Secretary’s conveyance.‘ See

Tameling v. United States Freehold and Emigration Co., 93 U.S.

644, 663 (1876) (confirmatory act “passes the title of the

United States as effectually as if it contained in terms a grant de

novo” ).

IV. Clean Water Act

The consolidated complaint alleges that the permits for

timber operations and the timber operations themselves violate

$§ 402 and 404 of the CWA. It also alleges that the timber

operations themselves violate § 306 of the Act. Defendants

urge dismissal of all of these claims.

Section 306 prohibits violations of effluent standards for

new pollution sources. The single § 306 allegation in the

consolidated complaint is wholly conclusory; the complaint

simply states that “[t]he timber operations . . . violate. . .

[section] 306... of the CWA.” No facts are alleged that would

constitute such a violation, and none have been provided in

subsequent briefing. This conclusory allegation fails to provide

the fair notice of the nature of claim asserted that is required

under F. R. Civ. P. 8(a)(2). See, e.g., Jones v. Community

Redevelopment Agency of Los Angeles, 733 F.2d 646, 649 (9th

Cir. 1984); Mountain View Pharmacy v. Abbott Laboratories,

630 F.2d 1383, 1386-87 ( 10th Cir. 1980).

4 Of course, Congress did not thereby “override” or “amend” the due

process clause; it simply conveyed the lands in a manner that mooted any

prior due process violations by the Secretary.

Because of the concluding proviso added to § 315 in conference, the

court does not believe § 315 was intended to moot challenges to the

conveyance arising out of ANILCA and ANCSA.

D-7

The court declines to dismiss the remainder of plaintiffs’

Clean Water Act claims at this time. The § 402 claims grow out

of Shee Atika’s failure to obtain a National Pollutant Discharge

Elimination System (NPDES) permit for its log transfer oper-

ations. This court ordered Shee Atika to obtain such a permit

on April 10, 1984 (Case No. A84-126). Shee Atika received its

NPDES permit on June 3, 1985, but the permit is presently the

subject of an appeal. See Status Report of Shee Atika filed

October 25, 1985 (Docket Nos. 162 and 163). Accordingly, the

court will retain jurisdiction over the § 402 claims. The § 404

claims are discussed below in conjunction with the related

NEPA claims. See Part V, infra.

V. Nepa Sections 101 and 102

Initially, the court may quickly dispose of plaintiffs’ claim

that the Cube Cove conveyance violated NEPA because it was

not preceded by an Environmental Impact Statement. Section

910 of ANILCA provides:

The National Environmental Policy Act of 1969 (83

Stat. 852) shall not be construed, in whole or in part,

as requiring the preparation or submission of an

environmental impact statement for withdrawals, con-

veyances, regulations, orders, easement determina-

tions, or other actions which lead to the issuance of

conveyances to Natives or Native Corporations,

pursuant to the Alaska Native Claims Settlement Act,

or this Act.

Hence NEPA has no application to the Cube Cove conveyance.

NEPA likewise has no direct application to Shee Atika’s

private timber operations on the Cube Cove lands; these

operations are not federal actions. The NEPA aspect of

plaintiffs’ second and third claims may therefore be distilled to

the following pair of allegations: that the Section 404 permit for

the log transfer facility (LTF) was issued without compliance

with NEPA, and that as a result the log transfer portion of Shee

Atika’s timber operation may not proceed. The parties have

cross-moved for summary judgment on these allegations. For

the reasons explored below, the court grants summary judg-

ment to plaintiffs and voids the Section 404 permit.

D-8

The Section 404 permit at issue was granted in its present

form in February, 1985. Preparatory to granting the permit,

the Army Corps of Engineers published an environmental

impact statement (EIS). Plaintiffs contend that the EIS is

inadequate because it fails to consider, pursuant to NEPA

§ 102(2)(c)( iii), the possibility that as an alternative to build-

ing the log transfer facility Shee Atika could exchange its lands

for other federal timberlands not on Admiralty Island. Such

exchanges are envisioned by ANCSA and ANILCA, and in

Shee Atika’s case would accord with a Congressional hope that

Shee Atika would exchange the Cube Cove lands granted it in

ANILCA. See this court’s Order regarding subsistence issues,

October 17, 1985.

For convenience, the court will adopt the convention of the

parties to refer to this option as the “exchange alternative.” The

exchange alternative can be conceived in two ways. It can be

viewed as a branch of the “no action alternative”—the possi-

bility that the Corps could issue no permit at all. On this view

the alleged defect of the EIS is that its consideration of the no

action alternative is inadequate, failing to evaluate it from the

standpoint of promoting an off-island exchange. See 33 C.F.R.

Part 230, App. b, 711b(5)(i) (1985); cf Kilroy v. Ruc-

kelshaus, 738 F.2d 1448, 1453-54 (9th Cir. 1984). Alterna-

tively, exchange can be viewed as a separate alternative in its

own right, one available to the applicant but outside the

jurisdiction of the Corps. Failure to consider a reasonable

alternative of this nature would likewise render the EIS defec-

tive. 33 C.F.R. Part 230, App. B, 7 11b(5)(i) (1985); 40

C.F.R. § 1502.14(c) (1985).

A. Required Scope of EIS Treatment of Alternatives

_ The parties do not dispute that the law requires a broad

definition of the applicant’s project and a broad and generic

definition of the purpose of that project. The Corps’ regulations

governing the preparation of Environmental Impact Statements

provide that

every application has both an applicant’s purpose and

need and a public purpose and need. These may be

the same when the applicant is a governmental body

D-9

or agency. In most instances when an EIS is required

and the applicant is not a governmental body or

agency, the applicant is a member of the private sector

engaged in providing a good or service for profit. At

the same time, the applicant is requesting a permit to

perform work which, if approved, is considered in the

public interest (i.e., provides a public benefit). This

public benefit shall be stated in as broad, generic

terms as possible. For instance, the need for a water

intake structure requiring a Corps permit as part of a

fossil fuel power plant shall be stated as the need for

energy and not be limited to the need for cooling

water. In a similar way, the need for housing near

canals or near marinas, etc., shall be expressed as the

need for shelter and not as the need for recreation

near water.

33 C.F.R. Part 230, App. B, § 11(b)(4) (1985). Applying

these principles to the instant case, the purpose of Shee Atika’s

application is commercial timber harvesting.

The parties likewise do not dispute that the consideration

of alternatives pursuant to NEPA § 102(2)(C)(iit) must be

addressed to this broad purpose. See 33 C.F.R. Part 230, App.

B, 411b(5)(b) (1985). Hence it would be improper to

consider only alternative means of moving logs out of Cube

Cove, if another alternative not involving the movement of logs

from Cube Cove would also enable commercial timber harvest-

ing to go forward.

The EIS declares that the exchange alternative “cannot be

considered in detail” because “the possibility of an exchange is

remote and speculative.” EIS at 2-4. This ground likewise

forms the core of defendants’ argument in this litigation.

Remote and speculative alternatives need not be considered in

an EIS. Vermont Yankee Nuclear Power Corp. v. N.R.D.C., 435

U.S. 519, 551 (1978). Conversely, failure to consider a

reasonable alternative renders an EIS inadequate. Citizens for

a Better Henderson v. Hodel, 768 F.2d 1051 (9th Cir. 1985).

Summary judgment may be granted if it appears from the

record of the case, after viewing all factual inferences in the

light most favorable to the non-moving party, that no genuine

D-10

issues of material fact exist, and that the moving party is

entitled to prevail as a matter of law. International Ladies

Garment Workers Union v. Sureck, 681 F.2d 624, 629 (9th Cir.

1982). The moving party has the burden to show that no

genuine issue of material fact exists. Ron Tonkin Grand

Turismo, Inc. v. Fiat Distributors, Inc., 637 F.2d 1376, 1381

(9th Cir.), cert. denied, 454 U.S. 831 (1981). As will be seen,

the relevant facts are not in dispute in the instant case, and the

legal defenses interposed by defendants are without merit.

B. Defendants’ Argument Regarding Consent

Defendants claim that exchange is remote and speculative

because Shee Atika has refused all exchange proposals ad-

vanced by the Forest Service, and that since Shee Atka might

refuse future proposals the alternative is “inherently specula-

tive.” It is true, of course, that no exchange could go forward

without Shee Atika’s consent. But Corps regulations call for the

consideration of such alternatives. 33 C.F.R. Part 230, App. B,

7 11b(5)(b) (1985). Indeed, virtually no alternative consid-

ered in a permit EIS of this type could be accomplished without

the applicant’s consent. Whenever the Corps deems an alterna-

tive preferable to a proposed action and declines to issue or

modifies the permit on that basis, the applicant has the option

of abandoning its project in preference to adopting the alterna-

tive. Not infrequently, it also has an option of proceeding with

the project but bypassing the procedure requiring a permit.

Alternatives 2, 4, 5 and 6 considered in the Cube Cove EIS fall

into this latter category; in each case, had the Corps fixed on

one of these alternatives as preferable to the proposed action,

Shee Atika could have refused to adopt the alternative and

could instead have conducted commercial timber operations by

means of helicopter transfer. With respect to the need for the

applicant’s consent, the exchange alternative is exactly like

Alternatives 2, 4, 5, and 6: Shee Atika would have the options

of adopting the alternative, abandoning its project, or proceed-

ing with an Lir.5

5 The record does not establish whether commercially viable timber

operations could proceed indefinitely without an LTF. Defendants and the

EIS concede that denial of the permit would increase economic pressure for

an exchange.

D-11

The question to be asked, however, is simply whether an

off-island exchange is “reasonable.” Better Henderson, supra,

768 F.2d at 1057. If the exchange alternative is objectively

reasonable, it is not remote and speculative; Shee Atika cannot

render an objectively reasonable alternative remote and specu-

lative simply by refusing to adopt it. See Friends of the River v.

F.E.R.C., 720 F.2d 93, 108 (D.C. Cir. 1983) (courts do not

waive requirement of serious environmental decision-making

merely “on the ground that such an enterprise would not

change the party’s mind”).

C. Alleged Need for Legislative Authorization for Exchange

. Defendants argue that the exchange alternative is remote

and speculative because it might require legislative approval for

implementation. As more fully explained in Subpart E, how-

ever, the court interprets ANILCA § 1302(h) to authorize an

exchange that would entail little or no legislative involvement.

Moreover, “[t]he mere fact that an alternative requires legisla-

tive implementation does not automatically establish it as

beyond the domain of what is required for discussion.”

N.R.D.C. v. Morton, 458 F.2d 827, 837 (D.C. Cir. 1972);

accord, e.g., Kilroy v. Ruckelshaus, 738 F.2d 1448, 1454 (9th

Cir. 1984); Coalition for Responsible Regional Development v.

Brinegar, 518 F.2d 522, 527 n.4 (4th Cir. 1975). This is

because an EIS is intended to inform a broad spectrum of

decisionmakers, including those at the legislative level.

N.R.D.C. v. Morton, supra, 458 F.2d at 833, 837. While NEPA

does not mandate consideration of alternatives that would

entail repeal of basic legislation such as the antitrust laws, id. at

837, or the Clean Water Act, Kilroy, supra, 738 F.2d at 1453-54,

reasonable alternatives involving minor legislative adjustment

or approval are within the compass of the EIS process. The

boundary adjustments or funding appropriations that might

involve Congress in an off-island exchange are in the latter

category. See generally Sierra Club v. Froehlke, 359 F. Supp.

1289, 1338-39 (S.D. Tex. 1973).

D-12

D. Consideration of Matters Beyond Corps’ Jurisdiction

Defendants apparently suggest that the exchange alterna-

tive is remote and speculative because it entails action by

Federal agencies other than the Corps. This argument is

meritless. See, eg, 33 C.F.R. Part 230, App. B.,

7 11b(5)(b)(iv); 40 C.F.R. § 1502.14(c).

E. Availability of Lands for Exchange

Defendants also aver that the exchange alternative is

remote and speculative because no land is available in South-

east Alaska for an exchange. While this reasoning is not

advanced in the EIS, the court will consider it on the assump-

tion that, if valid, it could establish that the EIS is not materially

deficient.

To show that in the 16,815,000 acres of Tongass National

Forest insufficient land-is available to exchange for Shee Atika’s

23,000-acre holding, defendants rely principally upon an

unelaborated statement by the Chief of the Forest Service to a

Senate committee that “there are no unallocated lands avail-

able.” Hearing Before Senate Select Comm. on Indian Affairs

on An Inquiry With the Affairs of Shee Atika, Inc., 98th Cong.,

Ist Sess. at 294-95 (1983) (testimony of R. Max Peterson).

Mr. Peterson did not indicate the nature of the allocation, nor

that it is irrevocable. The court need not decide whether this

feeble showing could establish a material issue of fact with

respect to the availability of comparable lands for exchange.®

Defendants’ argument is based on a non sequitur: that if no

comparable tract can be found for exchange, the exchange

® Mr. Peterson’s reference to allocation was presumably a reference to

prior administrative or legislative allocation. As was shown in Subpart C,

supra, alternatives that involve adjustments to existing legal structures are not

beyond the scope of an EIS. Moreover, it is undisputed that other Native

corporations have successfully exchanged their Admiralty Island holdings;

Gold Belt exchanged the very lands Shee Atika how holds. ANILCA

$$ 506(a)(3), 506(b). Finally, substantial evidence indicates that off-island

lands may sall | be readily available for exchange. See Tongass Land

Management Plan, Appendix 2 ( Exhibit 4 to plaintiffs’ cross-motion, Docket

Nos. 117 and 142); Draft ANILCA § 706(b) Report No. | at 10, Table 5

(July 19, 1985) (Supplemental Exhibit filed as Docket No. 149) (indicating

that Forest Service continues to reserve 9,000,000 board feet of annual timber

volume in anticipation of possible exchange with Shee Atika).

D-13

alternative is remote and speculative. The conclusion does not

follow the premise because the Secretary of Agriculture is

authorized to offer cash as well as land in proposing an

exchange to a Native corporation. ANILCA § 1302(h). Even

if no comparable and exchangeable lands could be found,

therefore, a cash-for-land or cash-and-land-for-land exchange

would be possible.

Defendants argue that § 1302(h) does not cover the Cube

Cove lands because those lands are within a National Forest

Wilderness, and therefore are excluded from the general ex-

change authority granted in ANILCA § 1302(a). Section

§ 1302(h), however, begins with the phrase “Notwithstanding

any other provision of law.” It then grants a broader exchange

authority than does § 1302(a) with respect to certain enumer-

ated landholders. If the § 1302(a) restriction were applied to

§ 1302(h), the entire first sentence of § 1302(h) would become

surplus language, a consequence to be avoided in statutory

construction. Tabor v. Ulloa, 323 F.2d 823, 824 (9th Cir.

1963). For further evidence of Congressional intent regarding

the exchangeability of Shee Atika’s 23,000-acre holding, see

ANILCA § 103(b), (c).

F. Alleged Impropriety of Denying Permit on Ground

that Exchange is Preferable

The EIS declares that “[d]enying a permit... for the sole

purpose of forcing Shee Atika to accept exchange proposals it

would otherwise refuse cannot be deemed a proper alterna-

tive.” EIS at 2-4. Defendants’ briefs echo this position,

although neither the EIS nor the briefs articulates a rationale

for it. If an objectively reasonable exchange were offered, but

Shee Atika nonetheless refused to consent to it, it would not be

improper for the Corps to deny a permit, pursuant to its

authority under 33 U.S.C. § 1344(c). The Corps is obligated to

consider the public interest in evaluating a permit application,

and is entitled to deny a permit that would be contrary to the

public interest. 33 C.F.R. § 320.4(a); see also e.g., Buttrey v.

United States, 690 F.2d 1170, 1183-86 (Sth Cir. 1982), cert.

denied, 461 U.S. 927 (1983). The point of the EIS process, of

course, is to ascertain the public interest. If evaluation showed

D-14

that an exchange would better serve environmental and other

public values while protecting Shee Atika’s commercial inter-

ests, denial of a permit would promote the public interest by

encouraging (though not compelling) the exchange. The Corps

is under no obligation to assist an applicant in pursuing an

unnecessarily damaging means of accomplishing its goal. Be-

cause it would be proper for the Corps to deny a permit on the

basis that a fair off-island exchange would better serve the

public interest, it would be proper for the Corps to evaluate an

off-island exchange as an alternative in the EIS.”

G. Plaintiffs’ Right to Summary Judgment

In the EIS process, the “agency bears the primary responsi-

bility to investigate serious alternatives.” Seacoast Anti-

Pollution League v. N.R.C., 598 F.2d 1221, 1231 (1st Cir.

1979). Plaintiffs met their minimal burden of suggesting the

exchange alternative during the comment period (indeed, in

light of past exchanges the alternative may have been suffi-

ciently obvious that the Corps was obligated to raise it on its

own.) It was then up to the Corps to decide whether or not the

proposal was reasonable, and to dispose of it accordingly.

Plaintiffs’ burden in this litigation is to show, under the

“hard look” standard applicable to an EIS, that the Corps’

determination that exchange is remote and speculative is an

erroneous determination. See e.g., Texas Committee on Natural

Resources v. Marsh, 741 F.2d 823, 824 (Sth Cir. 1984). To do

so, they need not prove that exchange is the best alternative.

E.g., Better Henderson, supra, 768 F.2d at 1057. They must

show only that exchange is possible and that it is not remote

and speculative. Exchange in this context is inherently possible

because even if sufficient lands are unavailable for exchange the

7 Because the purpose of this EIS is to foster informed discussion and

decisionmaking by persons other than the Corps—including Shee Atika, the

public, the Forest Service, and Congress—it is arguable that the EIS should

include an evaluation of off-island exchange even if for some reason it were

not proper for the Corps itself to deny a permit on the ground that exchange is

preferable. See, e.g., Better Henderson, supra, 768 F.2d at 1056; N.R.D.C. v.

Morton, supra, 458 F.2d at 833; see also 33 C.F.R. Part 230, App. B,

7 11b(5)(b)(ii) (1985).

D-15

government is able to substitute money for land in an exchange

proposal. The undisputed fact that other Native corporations

have exchanged the same or similar tracts establishes that an

exchange is not a remote and speculative idea. The EIS

therefore should have evaluated the merits of the exchange

alternative.

Accordingly, IT Is ORDERED:

(1) THaT the dispositive motions of Shee Atika and

the Federal defendants are granted in part as follows:

(a) defendants are granted summary judgment

with respect to plaintiffs’ claims pursuant to ANCSA

§ 17(b);

(b) plaintiffs’ claims pursuant to the Property

Clause of the United States Constitution are dismissed

for failure to state a claim upon which relief can be

granted;

Clause of the United States Constitution are dismissed

for failure to state a claim upon which relief can be

granted;

(d) plaintiffs’ claim pursuant to § 306 of the

Clean Water Act is dismissed for failure to state a

claim upon which relief can be granted;

(e) plaintiffs’ claim in paragraph 32 of the Con-

solidated Complaint pursuant to the National

Environmental Policy Act is dismissed for failure to

state a claim upon which relief can be granted;

(2) THatT the First Claim of plaintiffs’ Consolidated

Complaint is dismissed in its entirety;

(3) THatT the dispositive motions of Shee Atika and

the Federal defendants are denied with respect to plain-

tiffs’ claims in paragraphs 34 and 35 of the Consolidated

Complaint pursuant to the National Environmental Policy

Act and §§ 402 and 404 of the Clean Water Act;

D-16

(4) Tuat plaintiffs’ cross-motion for partial summary

judgment re inadequacy of EIS for failing to study ex-

change alternative is granted;

(5) THatT the court declares that the Clean Water Act

§ 404 permit issued to Shee Atika for the Cube Cove Log

Transfer Facility on February 28, 1985, is void;

(6) THaT as of December 11, 1985, Shee Atika shall

be enjoined from all use of the Cube Cove Log Transfer

Facility until a valid § 404 permit has been obtained;

(7) THat Shee Atika shall within fifteen days of the

date of this order submit a proposed form for partial final

judgment;

(8) THatT all other parties shall have ten days from

the date of lodging of the proposed form of partial final

judgment to file any objections to the same;

(9) THaT Shee Atika’s “Motion for Entry of Rule

54(b) Order” (Docket No. 166) shall be held in abeyance

pending compliance with item (7) above.

DaTED at Anchorage, Alaska this 26th day of November,

1985.

/s/ JAMES VON DER HEYDT

United States District Judge

ce: Lewis F. Gordon

Durwood Zaelke

U.S. Attorney

Jacqueline Luke

Jonathan Tillingha

E-1

APPENDIX E

IN THE

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

Civil Action No. A&3-234 Civ

Crry OF ANGOON, ef al.,

Plaintiff,

vs.

DONALD HODEL, Secretary of the Department of Interior, et ai.,

Defendants.

MEMORANDUM AND ORDER ON SUBSISTENCE

AND TRUST RESPONSIBILITY ISSUES

THis CAUSE comes before the court on the motions and

briefing of the parties on the “subsistence” issues involved in

this litigation. Specifically, this memorandum addresses all of

plaintiffs’ claims arising from Sections 503(c), 503(d),

506(a)(2), 506(c)(1), 810 and 811 of the Alaska National

Interest Lands Conservation Act (ANILCA), Pub. L. No. 96-

487, 94 Stat. 2371 (1980). Also addressed in this memo-

randum are plaintiffs’ claims relating to an alleged federal trust

responsibility growing out of Title VIII of ANILCA.

Today the court issues a separate memorandum and order

directed to claims arising out of §22(k) of ANILCA. The

remaining issues in plaintiffs’ consolidated complaint, filed

April 29, 1985, shall be addressed in a subsequent memo-

randum and order.'

1 The court finds plaintiffs have waived those issues raised in pnor

complaints not included in the consolidated complaint.

E-2

This action arises out of Shee Atika, Inc.’s selection,

confirmed by Congress, of certain lands on Admiralty Island.

Shee Atika is the native village corporation, established under

the Alaska Natives Claims Settlement Act, for those Natives

living in Sitka. Shee Atika’s land selection is comprised of

approximately 23,000 acres on the northwest section of the

island. In order to maximize the amount of harvestable timber,

the selection extends over several creek drainages and includes

lands in the vicinity of Cube Cove, Peanut Lake, Lake Kath-

leen, Lake Florence, and Ward Creek (hereinafter Cube Cove

lands). See ANILCA § 506(c).

At the same time that Congress conveyed the Cube Cove

lands to Shee Atika, it also established Admiralty Island

National Monument and Wilderness. See ANILCA §§ 503(b)

and 703(a)(1). This Wilderness encompasses all of Admiralty

Island, with the exception of some lands on the north end of the

island around Mansfield Peninsula, the Shee Atika lands, and

some lands surrounding the Greens Creek Mineral Deposit.?

Further, assuming Shee Atika’s positicn in this litigation is

correct, its inholding would be the only lands within the

Monument subject to timbering.* Shee Atika plans to harvest

approximately 20,000 acres of their Admiralty Island tim-

berlands and build a log transfer facility (LTF) at Cube Cove.

Because of the configuration of the Cube Cove lands, their

harvest could affect the wilderness character of a large sur-

rounding area of public land as well, perhaps as much as

80,000 additional acres.

2 While the Admiralty Island National Monument contains 92!,000

acres, the Wilderness only contains 900,000 acres. Compare ANILCA

§ 503(b) with § 703(a)(1). The two sections apparently refer to the same

map. See Ex. 2, attached to Docket Entry #111. This map establishes

different boundaries for the two near Greens Creek, at the north end of the

Moaument. The 21,000 acre difference is further explained by legislative

history. See 126 Cong. Rec. S11125 (Aug. 18, 1980) (statement of Sen.

Roth ); id. $11137 (material submitted by Sen. Gravel); Id. $11194-95 —

19, 1980) (statement of Sen. Jackson).

3 The Greens Creek lands cannot be logged. ANILCA § 503(d).

E-3

Plaintiff City of Angoon, a native village located on

Admiralty Island, alleges that this harvest will interfere with the

subsistence hunting of its citizens. Plaintiff Sierra Club seeks to

preserve the entire island as an undisturbed wilderness. For

these reasons, plaintiffs are challenging the conveyance of the

Cube Cove lands to Shee Atika and the validity of the

government permits associated with harvesting.‘

L The Exchange Argument

Plaintiffs’ major contention is that Congress, in granting

the Cube Cove lands to Shee Atika, intended that the lands be

used for exchange purposes only. Accordingly, they argue

that Congress intended the timber harvesting prohibition in

ANILCA § 503(d) to apply to the Cube Cove lands. As stated

in their briefs:

In sum, while Congress conveyed the inholding to

Shee Atika, Inc., it did so with the intent that it would

be exchanged for other timber lands outside the

Monument Wilderness, just as had been done by the

other Native Corporation that earlier claimed the

same land. Pending an exchange, however, Congress

ensured that the inholding would not threaten the

surrounding National Monument Wilderness or An-

goon’s traditional subsistence culture.

Section 503(d) states:

Within the Monuments, the Secretary shall not permit

the sale of [sic] harvesting of timber: Provided, That

nothing in this subsection shall prevent the Secretary

from taking measures as may be necessary in the

control of fire, insects, and disease.

4 For additional background information, see City of Angoon v. Marsh,

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

E-4

The plaintiffs argue that “within the Monuments” means within

the boundaries of the Monuments; defendants counter that the

prohibition only applies to public land within the Monuments.$

A number of arguments support plaintiffs’ position. First,

in the same section, when Congress intended a provision to

apply solely to public lands, it specifically so stated. See

ANILCA § 503(e); id. § 503(f)(2)(a). The absence of a

comparable limitation in § 503(d) is evidence that Congress

intended the provision to apply to both public and private

lands.6 Second, Congress placed similar use restrictions on

Kootznoowoo, Inc. lands within the boundaries of the Monu-

ment. See § 506(a)(3)(C). That Congress placed restrictions

on Kootznoowoo lands indicates an intent to preserve the

wilderness nature of the island to the greatest extent possible.”

Third, in § 506(d) Congress created a continuing authorization

to reimburse Shee Atika for part and future expenses incurred

in the exchange process. This again indicates that an off-island

exchange was within the contemplation of Congress. Fourth,

plaintiffs’ position is supported by § 103(c). This section states

that Native Corporation lands “shall [not] be subject to the

regulations applicable solely to future public lands within [a

conservation system] unit.” (emphasis added). This language

demonstrates that, at least in some instances, Congress intended

regulations to apply to both private and public lands within a

unit. Otherwise, the distinction created in this subsection would

not be necessary. Finally, plaintiffs’ case is aided by the rule

that ambiguities in the subsistence provisions of ANILCA must

be construed in favor of subsistence. E.g., People of the Village

5 Initially, the court f

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