# Petition for Writ of Certiorari — City of Angoon v. Hodel > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_2089%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1987 - **Citation:** 484 U.S. 870 ## Text 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 i 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 cg ey | a i 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. oc iV 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- IE ccciddnnidsidaicentbienesiadeiciabedaleititdaibaniniageinge 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 19 v 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) .............. a Page 25 7,8,11,12, 13,14,17,18 Pb 22 25 25 21,22,24,25 21 21 21,24 21 19,20,21, 23,24 17 21,24 21,23,24 22 21 21 25 p> vl 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 21 25 21,24 17 21 21,24 22 17,18,19 21 22,23 17 7,8,10,12 14 17 7,8,15,16, 17 10,11 25 14,17 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 © PE Py I BO nrccicsnccvenssssnesnssioencscsincsonces 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 21 2 8,11 4 5,17,18,19 4,19 7-19 4 2,4 2,8,12,13 14 14 2,19-26 25 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. 2 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). 4 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. 5 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. 6 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 7 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. 8 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. 9 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.”). 10 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. 11 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 12 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 13 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. 14 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. ) 15 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 16 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 17 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) ). 18 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. 19 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 20 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. 21 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. 22 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. A 23 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, 24 369 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. 25 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). 26 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. ? 27 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. L 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 (C) include in every recommendation or report on 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. VL 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).® © Sierra-Angoon also argue that the EPA’s and Corps’ granting of 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, Vs 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_2089%3A1. Public record. Not legal advice.