Opposition Brief — City of Angoon v. Hodel

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No. 86-1627 — : SHOSEPH F SPANIOL, JR,

IN THE

Supreme Court of the United States

OCTOBER TERM, 1986

CITY OF ANGOON, et al.,

Petitioners

DONALD HODEL, et al.,

Respondents

On Petition for Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF IN OPPOSITION OF RESPONDENT

SHEE ATIKA, INC.

RICHARD ANTHONY BAENEN

1735 New York Avenue, N.W.

Washington, D.C. 20006

(202) 783-9294

PIERRE J. LAFORCE *

WILKINSON, BARKER, KNAUER

& QUINN

1735 New York Avenue, N.W.

Washington, D.C. 20006

(202) 783-4141

Counsel for Respondent

Shee Atika, Inc.

* Counsel of Record

ARS TREE TELE TTT EET LR ILIIOS

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

TABLE OF CONTENTS

ARSE SF BAA RG TRE RID voceisincensencsescsnonscnsnsccasiverensaces

oe we ky | et! | arr

I eieicisaipiestenanictnieniitantantaaninainsipiacnnitiuaiatahiatsene

II.

III.

THE DECISION OF THE COURT OF AP-

PEALS DOES NO VIOLENCE TO THE FED-

ERAL GOVERNMENT’S NAVIGATIONAL

SERVITUDE, AND DOES NOT CONFLICT

WITH RELEVANT DECISIONS OF THIS

IE Wi dichdhaihcacaiinap eensinbieeacibinnteniccinienscincnsnepciancainanians

CERTIORARI REVIEW OF THE STATU-

TORY INTERPRETATION OF SECTION

503(d) OF ANILCA IS NOT WARRANTED

AS A MATTER OF POLICY OR ON THE

SE is kaia nab lacallielienioions cites ow etliipliaaeiniidaianeemaanaens

THE RULE 56 ISSUE POSITED IN THE PE-

TITION DOES NOT WARRANT REVIEW....

A. Review Is Not Called For Under Certiorari

B. Sierra Club-Angoon Never Properly Pre-

sented, Prosecuted Or Preserved A Viable

I BI -. ctatidlceatdietnaesombnanneincsnstenonse

C. Sierra Club-Angoon Were Not Entitled To

IT os auss enc caecncedintonemendavabasvens

RIE — scaricare nbtecekisntegahsussnictnshoncineationeanibonties

TABLE OF AUTHORITIES

Judicial Decisions: Page

Amoco Prod. Co. v. Village of Gambell, 107 S. Ct.

) |__| SRNR TURN mm OT IEE eae EP ITENE 7,8,9

Bonnelli Cattle Co. v. Arizona, 414 U.S. 313

LL ROOD NT = SEGAL RE VE Ea 8

Burlington Coat Factory Warehouse Corp. v.

Esprit De Corp., 769 F.2d 919 (2d Cir. 1985) .... 13

City of Angoon v. Hodel, 803 F.2d 1016 (9th Cir.

ND inciniarhscninsinnsncneouigpinnesainduneadieemuiamaaaae passim

City of Angoon v. Marsh, 749 F.2d 1413 (9th Cir.

ED hmnetisnevinaiminnnaanea passim

Gieringer v. Silverman, 731 F.2d 1272 (7th Cir.

TID ccecsenssiniinetnsaciases tniccsaessimmmaaia aes 13

Kaiser Aetna v. United States, 444 U.S. 164

PIED :snvinicnssssnneietsntciadiilidesssthulesiaaliiaseaincadeniaaia inna 6

Minnesota v. Block, 660 F.2d 1240 (8th Cir.

TED vicecseinisnsscins hi nliseiaipctidacedsensniaedaemumen ann 9

NLRB v. Pittsburgh S.S. Co., 340 U.S. 498

TED chinw~csnscnssespieiodbsesbcetoiudsiceebanasaiaaatidiaaniauaaaaenann nana 9

Oregon ex rel. State Land Bd. v. Corvallis Sand &

Gravel Co., 429 U.S. 363 (1977) ........222200..200.-..ee 6

Over The Road Driver’s, Inc. v. Transport Ins. Co.,

637 F.2d G16 (ist Cir. 1966) ............................... 13

Paul Kadair, Inc. v. Sony Corp. of America, 694

Fie BOST CO CR. TD vsti, 13

Rice v. Sioux City Memorial Park Cemetary, Inc.,

DEF Tis FO CRD cncininciccemneigamas g

United States v. Bob Stofer Oldsmobile-Cadillac,

Inc., 766 F.2d 1147 (7th Cir. 1985) 2.000000... 13

United States v. California, 332 U.S. 19 (1947)... 6

United States v. Chandler-Dunbar Power Co., 229

it BR | eee emrritg rt, 7

United States v. Cherokee Nation, 107 S. Ct. 1487

RETED sitnisteisnsninansitieensicesbesinianinapnamanmmn ce ian 7

United States v. Kansas City Life Ins. Co., 339

Te TE EID cuslieenscinssteiscnnentncennninssidllictiadeamiuiaamia 6

United States v. Little Al, 712 F.2d 133 (5th Cir.

PD xstseccescniisinmsctitettarariiidaunicicasi ee 13

United States v. Rands, 389 U.S. 121 (1967)........ 8

iii

TABLE OF AUTHORITIES—Continued

Page

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

Neen iimaniinnesonsacennvancaceve 6

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

Ee 6

Vermont Yankee Nuclear Power Corp. v. Natural

Resources Defense Council, Inc., 435 U.S. 519

Ne aac menscnaniniennnesunetnscnnsnase 7

Walters v. City of Ocean Springs, 626 F.2d 1317

Tee scctiaaadiinnnconivinsieniunioncsnnacene 13

Statutes:

I EE OID a snnannccessncnenransascecceseseccenccene 8

I I I sn cacncsacnsscevensennccenesencscsceees 8

I BN oo scneecncnscenncenasscesnsnssceensseee 8

oe, we beeen 66 eg. C19G2) ........................-......... 1

Alaska National Interests Lands Conservation Act

Section 503(d), 94 Stat. 2400 -..............2.2.222 passim

A ‘atiol passim

Regulations:

ens eee ce) C1008) ......................-0..-.00-00-2-

nN bo

Miscellaneous:

10A C. Wright, A. Miller, M. Kane, Federal Prac-

tice And Procedure § 2740 (1983) .......................- 12

IN THE

Supreme Court of the United States

OCTOBER TERM, 1986

No. 86-1627

_ CITY OF ANGOON, et al.,

" Petitioners

DONALD HODEL, et al.,

Respondents

On Petition for Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF IN OPPOSITION OF RESPONDENT

SHEE ATIKA, INC.

Respondent Shee Atika, Inc." herewith submits its brief

in opposition to the petition for a writ of certiorari filed

herein by the Sierra Club, the City of Angoon, et al.

(“Sierra Club-Angoon”). The petition seeks review of

City of Angoon v. Hodel, 803 F.2d 1016 (9th Cir. 1986)

(“Angoon II’). (The court of appeals also issued an

earlier opinion herein sub nom. City of Angoon v. Marsh,

749 F.2d 1413 (9th Cir. 1984) (“Angoon I’’).)

1 Shee Atika, Inc. is an Alaska Native corporation formed pur-

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

§§ 1601 et seq., to represent the interests of the Natives of Sitka,

Alaska.

STATEMENT OF THE CASE

For the most part, the statement of facts contained in |

the opinion of the court of appeals in Angoon II, supple-

mented by the statement of facts in Angoon I, adequately

(and more accurately) states the facts. An additional

factual statement is required, however, regarding the so-

called Rule 56 claim because that issue was first raised

by Sierra Club-Angoon on rehearing.”

This litigation, initiated in 1982, involved a multi-

count legal challenge by Sierra Club-Angoon to Shee

Atika’s economic enjoyment of lands conveyed to it pur-

suant to the Alaska Native Claims Settlement Act

(“ANCSA”) and the Alaska National Interest Lands

Conversation Act (“ANILCA”).

In the course of this litigation, upon demand of Sierra

Club-Angoon, the Corps of Engineers prepared an en-

vironmental impact statement for a log transfer facility

proposed to be constructed by Shee Atika on its Admi-

ralty Island lands. The EIS process, commenced in April

1983, culminated with the issuance of a Final Environ-

mental Impact Statement (‘“FEIS”) on November 9,

1984. The FEIS recommended, as the “environmentally

preferred alternative”,* construction of the proposed fa-

cility. The FEIS also found that construction/operation

of the facility would not significantly adversely affect

Native subsistence, and that there would be no adverse

impact on public access to Cube Cove, where the facility

would be located.*

2A copy of the Sierra Club-Angoon petition for rehearing is

reprinted in the Appendix as App. A.

3 NEPA regulations require federal agencies to specify an “en-

vironmentally preferred alternative” during the EIS process. See

40 C.F.R. §§ 1502.14(e), 1505.2(b) (1986).

*Court of Appeals Excerpts of Record (“E.R.”), at 159, 264.

The FEIS was preceded by a Draft Environmental Impact State-

ment, released April 6, 1984, which likewise recommended con-

In April 1984, Sierra Club-Angoon obtained a pre-

liminary injunction enjoining Shee Atika from timber

harvesting on its Admirality Island lands on the ground

that such harvesting was barred by section 503(d) of

ANILCA. On appeal, the court of appeals reversed in

Angoon I, and remanded the case to the district court

on December 27, 1984.

On remand, the district court, on March 4, 1985, con-

solidated the four cases comprising the Shee Atika litiga-

tion and ordered Sierra Club-Angoon to file an amended

consolidated complaint. The amended complaint was filed

on April 3, 1985.5 Therein, Sierra Club-Angoon con-

clusorily alleged that the federal permits issued to Shee

Atika and the timber operations proposed by Shee Atika

were violative of NEPA. The complaint made passing

reference to the FEIS, alleging that it was improperly

prepared for failure to study the alternative of an ex-

change of the Cube Cove lands “and otherwise without

complying to the fullest extent possible with NEPA... .”

E.R. 14. The parties filed motions and cross-motions for

summary judgment or dismissal covering every issue

raised by the consolidated complaint.*

In its dispositive motion, Shee Atika sought dismissal

of the NEPA counts, inter alia, on the ground that un-

defined, conclusory allegations of NEPA violations were

legally insufficient under Vermont Yankee.” On May 21,

struction of the facility, and made similar findings concerning sub-

sistence and public access.

5 While Sierra Club-Angoon purported to file a “draft complaint”,

this ploy was rejected by the district court as being without au-

thority.

6In all, some 113 entries (including 35 briefs) were recorded in

the district court docket from the time the case was remanded to

the district court (January 1985) to issuance of the district court’s

NEPA Order (November 27, 1985). E.R. 378-83.

7 See Vermont Yankee Nuclear Power Corp. v. Natural Resources

Defense Council, Inc., 435 U.S. 519, 553-54 (1978).

1985, responding to Shee Atika’s dispositive motion,

Sierra Club-Angoon devoted one sentence (out of a 33-

page brief) to their “undeveloped NEPA claims”, as

follows:

Plaintiffs allege that the EIS is inadequate for other

reasons as well, but until they have the opportunity

for further factual development, including discovery,

and further legal analysis, plaintiffs are not pre-

pared to present their case on these points.*®

On that same date, Sierra Club-Angoon filed a motion

for partial summary judgment on the FEIS, seeking in-

validation for failure to study the “exchange alterna-

tive’. No mention was made therein of any reserved

NEPA issues.

Finally, in a June 18 filing, Sierra Club-Angoon per-

functorily opposed dismissal of their “undeveloped NEPA

claims”, citing to an attached affidavit of counsel. That

affidavit alleged (i) that Sierra Club-Angoon were not

then able to “present by affidavit facts essential to

justify their opposition”, (ii) that they had not yet com-

menced any discovery on their “undeveloped NEPA

claims”, (iii) that, believing that success on their “ex-

change alternative” issue would make other NEPA dis-

covery unnecessary, they had opted to defer such dis-

covery. App. A at 27a.

Sierra Club-Angoon did not seek a Rule 56(f) con-

tinuance for discovery on the “undeveloped NEPA

claims’, nor did they formally move that judicial action

be withheld on these claims.? No Rule 56(f) order was

entered by the district court.

8Qn June 10, Shee Atika specifically opposed the Sierra Club-

Angoon attempt to reserve “undefined, unarticulated NEPA argu-

ments until some indeterminate time in the future.”

® During the year-plus period from release of the FEIS (Novem-

ber 1984) to issuance of the district court’s NEPA decision (No-

vember 1985), Sierra Club-Angoon never sought any discovery on

On November 27, 1985, the district court issued its

decision on the NEPA issue. The court stated the issue

as follows:

The NEPA aspect of plaintiffs’ second and third

claims may therefore be distilled to the following

pair of allegations: that the Section 404 Permit for

the log transfer facility (LTF) was issued without

compliance with NEPA, and that as a result the log

transfer portion of Shee Atika’s timber operation

may not proceed. The parties have cross-moved for

summary judgment on these allegations. [App. D.

to the Sierra Club-Angoon Petition at D-7.]

Further, the court described Sierra Club-Angoon’s

NEPA argument as follows:

Plaintiffs contend that the EIS is inadequate because

it fails to consider, pursuant to NEPA § 102(2) (c)

(iii), the possibility that as an alternative to build-

ing the log transfer facility Shee Atika could ex-

change its lands for other federal timberlands not

on Admiralty Island. [/d. at D-8.]

The court made no'mention of any “undeveloped NEPA

claims”, or that these claims were reserved for further

litigation.”

In their several briefs to the court of appeals, Sierra

Club-Angoon never contended that there remained to be

litigated “undeveloped NEPA claims.” The existence of

these claims was first noted in Sierra Club-Angoon’s peti-

tion for rehearing. The court of appeals denied that

petition, without requesting Shee Atika or other parties

to respond thereto.

the “undeveloped NEPA claims.” During this same period, Sierra

Club-Angoon sought, and obtained, discovery on other litigation

issues.

10 The district court expressly retained jurisdiction over other

claims.

I. THE DECISION OF THE COURT OF APPEALS

DOES NO VIOLENCE TO THE FEDERAL GOV-

ERNMENT’S NAVIGATIONAL SERVITUDE, AND

DOES NOT CONFLICT WITH RELEVANT DECI-

SIONS OF THIS COURT

Fundamentally misconceiving the essence of the fed-

eral navigational servitude, Sierra Club-Angoon posit a

decision entrenching upon federal constitutional powers

and otherwise at odds with controlling precedent. This

case presents no such pernicious elements.

The decision of the court of appeals is fully in accord

with this Court’s pronouncements on the federal naviga-

tional servitude. The navigational servitude—which has

its origin in the Commerce Clause—is an attribute of

federal sovereignty, and not a real property concept.

See, e.g., United States v. Twin City Power Co., 350 U.S.

222, 224-25 (1956) (“That Clause speaks in terms of

power, not of property.’’).

The governmental nature—the sovereignty aspect, if

you will—of the navigational servitude power has been

stressed by the Court. See, e.g., Kaiser Aetna v. United

States, 444 U.S. 164, 177 (1979); Oregon ex rel. State

Land Bd. v. Corvallis Sand & Gravel Co., 429 U.S. 363,

375-76 (1977) ; United States v. Virginia Elec. & Power

Co., 365 U.S. 624, 627-28 (1961); United States v. Kan-

sas City Life Ins. Co., 339 U.S. 799, 808 (1950). The

Court has also emphasized that proprietary concepts are

11 Even where there has been disagreement as to the applica-

bility of the navigational servitude, there has been unanimity as

to its sovereign—as opposed to proprietary—nature. For ex-

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

Justice. Frankfurter, in dissent, distinguished between ownership

rights and exercise of the Commerce Power: “[Rlights of owner-

ship are something else.” Jd. at 44. Similarly, in Kaiser Aetna v.

United States, supra, Mr. Justice Blackmun, dissenting, noted that

what is at issue with respect to the navigational servitude “is a

matter of power, not of property.” Jd. at 187.

inapplicable with respect to navigable waters. United

States v. Chandler-Dunbar Water Power Co., 229 U.S.

58, 69 (1913).¥

Specifically, the decision below does not conflict with

this Court’s recent decision in Amoco Prod. Co. v. Village

of Gambell, 107 S. Ct.. 1896 (1987) and United States

v. Cherokee Nation, 107 S. Ct. 1487 (1987). Gambell, to

the extent that it is relevant to the instant case, dealt

with the interest of the United States in OCS lands, and

not the attribute.of sovereignty known as the navigational

servitude. In fact, the navigational servitude power was

not even mentioned in the Gambell opinion. OCS lands

are clearly more susceptible to proprietary concepts, given

that the United States has asserted such ownership in-

terests therein as to command the payment of lease royal-

ties for drilling rights. Such rights are different in kind

from the exercise of regulatory power embodied in the

navigational servitude. Thus, nothing in the decision

below conflicts with Gambell.

Similarly, the decision below is not at odds, either

directly or inferentially, with Cherokee Nation. In Cher-

okee Nation, the Court identified the navigational servi-

tude as “an exercise of the Government’s power to regu-

late navigational uses”. 107 S. Ct. at 1490. The Court

also spoke of the navigational servitude as a matter of

“sovereign authority,” id. at 1492, and stated that a

waiver of same would not be lightly implied. Ibid. The

decision below involved no waiver, no relinquishment, no

diminution of the navigational servitude. The federal

permit approvals reviewed in the litigation represented

an exercise of that governmental power, not frustration

of it.

Finally, the decision below is not in conflict with the

Submerged Lands Act. That Act distinguishes between

“ownership” interests and the governmental power em-

12 This case was most recently cited with approval in United

States v. Cherokee Nation, 107 S. Ct. 1487, 1492 (1987).

bodied in the navigational servitude. Compare 43 U.S.C.

§§ 1311, 13813 with 48 U.S.C. § 1814; see also United

States v. Rands, 329 U.S. 121, 127 (1967). In the Sub-

merged Lands Act, the United States quitclaimed its pro-

prietary interests in the beds of navigable waterways,”

while restating the “sovereign authority” of the United

States over navigability, as expressed in the navigational

servitude concept. There is nothing in the decision below

contrary to these policies and concepts.*

II. CERTIORARI REVIEW OF THE STATUTORY IN-

TERPRETATION OF SECTION 503(d) OF ANILCA

IS NOT WARRANTED AS A MATTER OF POLICY

OR ON THE MERITS

On two occasions, the court of appeals has held that

section 503{d) of ANILCA cannot legitimately be inter-

preted to prohibit timber harvesting on Shee Atika’s

Admiralty Island lands because such a construction would

be contrary to congressional intent, and would nullify

another provision of ANILCA. See Angoon I, 749 F.2d

at 1416-18; Angoon II, 803 F.2d at 1022-25.

Further review of this issue is not warranted. Section

503(d) of ANILCA applies only to the Admiralty Island

National Monument and the Misty Fjord National Monu-

13 Bonelli Cattle Co. v. Arizona, 414 U.S. 318, 324 (1973).

14 There is also no merit to the contention of Sierra Club-Angoon

that a regulatory void regarding subsistence will exist absent a

finding that section 810 of ANILCA is applicable to federal per-

mitting activities. The FEIS prepared by the Corps specifically

addressed the subsistence issue, and, in that regard, it was found

that construction/operation of the facility would not significantly

adversely affect subsistence. E.R. 159. (The FEIS also found no

adverse impact on public access (navigability). E.R. 264.) In

Amoco Prod. Co. v. Village of Gambell, 107 S. Ct. 1896, 1400 n.5

(1987), the Court listed no less than six environmental statutes

which were applicable to OCS activities. These same statutes are

applicable to the waters in Cube Cove and other waters within the

three-mile limit.

GROTON TRAY HEP eR Tp

ment. There are no inholdings within these Monuments

similar to Shee Atika’s, and the question of the interpre-

tation of section 503(d) will not recur. Under such cir-

cumstances, Supreme Court review is unwarranted as

a matter of policy. See Rice v. Sioux City Memorial Park

Cemetery, Inc., 349 U.S. 70, 74 (1955); NLRB v. Pitts-

burgh S.S. Co., 340 U.S. 498, 502 (1951).

Further, the decision below is not in conflict with ei-

ther Gambell or Minnesota v. Block, 660 F.2d 1240 (8th

Cir. 1981). Gambell involved interpretation of a sepa-

rate statutory phrase, involving a different statutory

framework and a different legislative history. Indeed, the

Court noted that the “plain meaning” rule must give

way when there is evidence “that Congress actually in-

tended another meaning.” 107 S. Ct. at 1406. In the

instant case, there was overwhelming legislative history

to the effect that Congress intended that Shee Atika de-

velop its lands. See Angoon I, 749 F.2d at 1416-18;

Angoon II, 803 F.2d at 1022-25. The statutory interpre-

tation adopted by the court of appeals was thus con-

sonant with Gambell and not contrary to it. In like

fashion, the decision below does not conflict with Minne-

sota v. Block. In that case, the court noted that its

“plain language” interpretation was consistent with “the

purpose and legislative history of the act.” 660 F.2d at

1248 n.15. The interpretive route chosen by the court

of appeals here was ascertainment of the will and intent

of Congress, a methodology fully consistent with the pro-

nouncements of this Court.

Finally, on the merits, the decision of the court of

appeals was both legally correct and equitable. The court

of appeals concluded that to deny Shee Atika harvesting

rights on its Admiralty Island lands would be to deprive

it of the most valuable usufruct of those lands, and that

such an anomalous, indeed bizarre, result could not have

been intended by Congress. The court further held that

the interpretation urged by Sierra Club-Angoon would

effectively nullify section 506(c) of ANILCA which di-

rected the conveyance of Admiralty Island lands in set-

tlement of Shee Atika’s ANSCA entitlement, again a

result that could not have been intended by Congress.

Review of the Sierra Club-Angoon’s interpretation of

section 503(d) of ANILCA is clearly unwarranted.

III. THE RULE 56 ISSUE POSITED IN THE PETITION

DOES NOT WARRANT REVIEW

Review of the propriety of entry of summary judg-

ment on the adequacy of the FEIS is not warranted for

the following reasons: (A) the decision below is not in

conflict with the precedents of this Court, nor is it so

extraordinary as to call for exercise of this Court’s su-

pervisory powers; (B) the record facts do not support the

Rule 56 claim alleged by Sierra Club-Angoon; (C) the

action of the court below was fully in accord with the

spirit and letter of the Federal Rules and the adjudica-

tive law.

A. Review Is Not Called For Under Certiorari Policy

Nothing in the opinion of the court of appeals can be

said to be in conflict with the precedents of this Court.

Similarly, the opinion below will not perplex, nor will

it intimidate, future litigants with respect to Rule 56

procedures.

The opinion of the court of appeals does not discuss

Rule 56 standards, does not announce any new interpre-

tation thereof, and it can hardly be considered a radical

departure from orthodoxy. In fact, the Rule 56(f) ques-

tion and the “undeveloped NEPA claims” were a non-

issue until Sierra Club-Angoon raised same in their peti-

tion for rehearing.

B. Sierra Club-Angoon Never Preperly Presented,

Prosecuted Or Preserved A Viable Rule 56(f) Issue

The record facts fail to support the assertion of a

viable Rule 56(f) issue. Instead, that record shows that

Sierra Club-Angoon’s allegation of “undeveloped NEPA

claims” was never properly raised and/or that it was

abandoned.

Sierra Club-Angoon’s sole record basis for their “un-

developed NEPA claims” is an affidavit of counsel at-

tached to a legal brief filed with the district court (and

not otherwise brought to the attention of that court), and

two isolated references to these “undeveloped” claims in

the several hundreds of pages of legal and factual argu-

ments submitted. by Sierra Club-Angoon to the district

court.*®

Sierra Club-Angoon never filed a motion, nor other-

wise requested the district court to defer decision on all

NEPA issues, nor did they seek a continuance so that

they could pursue Rule 56(f) discovery on their “un-

developed NEPA claims”. There being no extant request

for Rule 56(f) relief, the district court entered no order.

The record also shows that Sierra Club-Angoon never

pursued any discovery with respect to their “undeveloped

NEPA claims’. There was ample opportunity for dis-

covery from issuance of the FEIS (November 1984) to

the decision of the district court on the NEPA counts

(November 1985). Further, the decision to forego dis-

covery was a tactical one, with Sierra Club-Angoon being

content to rely on their “exchange alternative” argu-

ment with respect to the adequacy of the FEIS. Certio-

rari review does not lie to correct tactical misjudgments

or litigating errors.

In its decision, the district court made clear its under-

standing that all of the NEPA issues had been submitted

to it for determination. Likewise, the absence of mention

15 These two references consist of a one-sentence statement in a

May 21, 1985 filing to the effect that Sierra Club-Angoon wished

to challenge the FEIS on other grounds, but were not prepared to

do so and a footnote reference in a June 18, 1985 filing objecting

to dismissal of Sierra Club-Angoon’s NEPA claims. See App. A

at 21a, 24a n.1.

of Sierra Club-Angoon’s “undeveloped NEPA claims” in

their several court of appeals briefs confirms that no

such issue was then extant.’

Thus, the record fails to suppert Sierra Club-Angoon’s

allegations of arbitrary, swa sponte, and unprincipled

action by the court of appeals. To the contrary, the court

of appeals, in directing summary judgment with respect

to the adequacy of the FEIS, acted on the record devel-

oped before the district court, a record devoid of any

unresolved or unlitigated NEPA issues.

There is no basis for Sierra Club-Angoon’s plaints of

procedural unfairness. They had ample opportunity to

seek discovery and otherwise develop all of their NEPA

claims. Sierra Club-Angoon consciously chose not to avail

themselves of the discovery procedures afforded by the

Federal Rules, and otherwise failed to properly utilize

Rule 56 procedures; they cannot now claim a lack of

opportunity to litigate.

In raising their “undeveloped NEPA claims” issue in

their petition for rehearing with the court of appeals,

Sierra Club-Angoon attempted to resuscitate an issue

which was never properly raised or preserved before the

district court, or was abandoned prior to judgment. Un-

der these circumstances, the court of appeals was plainly

correct in denying the petition for rehearing. The Fed-

eral Rules do not permit of in pectore pleading or prac-

tice.

C. Sierra Club-Angoon Were Not Entitled To Rule

56(f) Relief

Sierra Club-Angoon never formally sought Rule 56(f)

relief before the district court. Such relief is not avail-

able for the first time on appeal."*

16 Qn the other hand, Shee Atika’s briefs consistently represented

that the only NEPA issue involved the “exchange alternative.”

See App. at 13a.

17 See 10A C. Wright, A. Miller, M. Kane, Federal Practice And

Procedure § 2740, at 535 (1983).

The case law developed by the lower federal courts on

Rule 56(f) leaves no doubt that Sierra Club-Angoon’s

claims of procedural deficiencies are without legal sup-

port. First, the mere filing of a Rule 56(f) motion does

not automatically stay the proceedings on the under-

lying motion for summary judgment.’ A party seeking

Rule 56(f) relief must diligently present and prosecute

a Rule 56(f) application, since such relief is committed

to the discretion of the trial court.’° Second, the lower

federal courts have accorded short shrift to litigants who

fail to adequately apprise the court of their requests for

Rule 56(f) relief.2° Finally, a party who has been dila-

tory in discovery may not obtain Rule 56(f) relief.”

The Rule 56(f) claim raised on rehearing by Sierra

Club-Angoon suffered from each of the deficiencies noted

above. Their claim for Rule 56(f) relief was inade-

quately presented, and was not preserved; they took no

direct action in the district court seeking a Rule 56(f)

continuance or discovery; they made no attempt to obtain

discovery on their “undeveloped NEPA claims”. Thus,

the court of appeals was fully warranted in denying their

petition for rehearing on the ground that a Rule 56(f)

issue had either never been properly raised, or had not

been properly preserved, or had béen abandoned. There

was ample record support for each and all of the fore-

going findings.

18 See Gieringer v. Silverman, 731 F.2d 1272, 1280 (7th Cir.

1984).

19 See United States v. Little Al, 712 F.2d 133, 135 (5th Cir.

1983).

20 See, e.g., Burlington Coat Factory Warehouse Corp. v. Esprit

De Corp., 769 F.2d 919, 926 (2d Cir. 1985); Paul Kadair, Inc. v.

Sony Corp. of America, 694 F.2d 1017 (5th Cir. 1983).

21 See, e.g., United States v. Bob Stofer Oldsmobile-Cadillac, Inc.,

766 F.2d 1147, 1153 (7th Cir. 1985); Walters v. City of Ocean

Springs, 626 F.2d 1317, 1822 (5th Cir. 1980); Over The Road

Driver’s, Inc. v. Transport Ins. Co., 637 F.2d 816, 820-21 (1st Cir.

1980).

One final point needs to be made with respect to the

spurious Rule 56(f) claim. As noted in both Angoon I

and Angoon II, Sierra Club-Angoon have been successful

in delaying Shee Atika’s economic development of its

ANSCA lands for several years.” For their own reasons,

Sierra Club-Angoon are unalterably opposed to the policy

decision made by Congress, and they have contested Shee

Atika’s rights in every conceivable forum and on every

conceivable legal ground. Sierra Club-Angoon’s new Rule

56(f) argument is but the latest stratagem in a cam-

paign of opposition now into its twelfth year. Sierra

Club-Angoon have had full opportunity to develop and

present all their legal arguments, and their due process

rights have been fully recognized and protected. The

litigation trail and travails should end here.

CONCLUSION A

For the foregoing reasons, the petition of Sierra Club-

Angoon should be denied.

Respectfully submitted,

RICHARD ANTHONY BAENEN

1735 New York Avenue, N.W.

Washington, D.C. 20006

(202) 783-9294

PIERRE J. LAFORCE *

WILKINSON, BARKER, KNAUER

& QUINN

1735 New York Avenue, N.W.

Washington, D.C. 20006

(202) 783-4141

Counsel for Respondent

Shee Atika, Inc.

June 12, 1987

22 See 749 F.2d at 1414-15; 803 F.2d at 1018-19.

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

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

DC# CV-83-234

Alaska (Anchorage)

CITY OF ANGOON, THE SIERRA CLUB, et al.,

. Plaintiffs-A ppellees,

DONALD HODEL, Secretary of Interior, et al.,

anil Defendants,

SHEE ATIKA, INC.,

Defendant-A ppellant,

and

SEALASKA CORP.,

Defendant-A ppellant.

On Appeal from the United States District Court

for the District of Alaska

[Filed Nov. 22, 1986]

SIERRA CLUB/ANGOON’S PETITION

FOR REHEARING

DuRWOOD J. ZAELKE FREDERICK P. FURTH

SIERRA CLUB LEGAL DEFENSE FUND JEFFREY A. GLICK

1516 P Street, NW FURTH, FAHRNER, BLUEMLE &

Suite 300 MASON

Washington, DC Furth Building, Suite 1000

Attorneys for Appellees 201 Sansome Street

Sierra Club and the San Francisco, CA 94104

Wilderness Society , Attorneys for Appellees

City of Angoon

ee ee

INTRODUCTION

Appellees Sierra Club, The Wilderness Society, and the

City of Angoon (“Sierra Club/Angoon”) respectfully

petition for a rehearing of the appeal in the above-entitled

cause, pursuant to Rule 40, Federal Rules of Appellate

Procedure.

Sierra Club/Angoon believe the Court has overlooked

material points of law in rendering its decision. While

reserving their argued position as to each of the points

of appeal, appellees address themselves in this petition

solely to the issue of the propriety of the panel’s entry of

summary judgment in favor of Shee Atika-Sealaska on

the adequacy of the Environmental Impact Statement

(“EIS”) and the validity of the § 404 permit for the log

transfer facility (“LTF’’). Specifically, appellees believe

the Court erred in concluding that there were no genuine

issues of material fact remaining in sua sponte directing”

summary judgment for Shee Atika-Sealaska.

SUMMARY OF FACTS

The instant controversy involves three consolidated ap-

peals, resulting in turn from the earlier consolidation of

four separate proceedinys before the district court. On

April 7, 1982, the Army Corps of Engineers (“Corps’’)

issued a Department of the Army permit to Shee Atika,

Inc. under § 404 of the Clean Water Act and § 10 of the

Rivers and Harbors Act, authorizing the corporation to

build an LTF at Cube Cove “for development of its pri-

vately-owned lands on western Admiralty Island.” ER

at 145.1 On January 13, 1983 the City of Angoon and

1In this petition, citations to the defendants’ Excerpts of Records

are in the following form: ER . The Sierra Club and the City

of Angoon have filed joint additional Excerpts of Record in two

volumes. Volume I contains excerpts from Angoon v. Marsh, No.

A84-126 Civ. (now part of the instant consolidated action). Ex-

cerpts from Volume I are cited in the following form: Marsh CR

287 individual Natives filed their complaint in Angoon

v. Marsh, alleging, inter alia, that approval of a § 404

permit for Shee Atika’s LTF at Cube Cove without the

preparation of an EIS was in violation of the federal

defendants’ duties pursuant to the National Environ-

mental Policy Act (“NEPA”), 42 U.S.C. § 4821 et seq.

Marsh CR 1. On February 28, 1983, Sierra Club and

The Wilderness Society intervened as plaintiffs, Marsh

CR 138, and on March 21, 1988, Angoon and intervenors

submitted a motion for preliminary injunction against

federal approval of construction of the LTF. Marsh CR

20. On March 30, 19838, the federal government stipu-

lated to suspend its earlier approval of the LTF, and to

prepare an EIS. Marsh CR 28.

On March 22, 1984, Sierra Club/Angoon moved to en-

join construction of the permanent and timber harvest-

ing on 40 acres of the inholding. Marsh CR 109. That

work had begun even though federal approval was still

suspended and the EIS was not yet completed. On March

28, 1984, the court granted a temporary restraining or-

der halting construction of the LTF, but did not enjoin

timber harvesting. Marsh CR 116. On March 28, 1984,

the Corps issued a “Cease and Desist” order directing

Shee Atika to halt its illegal fill activities. Marsh CR

114,

After expedited briefing and argument in April 1984,

the court granted a preliminary injunction against tim-

ber harvesting, based on the statutory prohibition in

§ 503(d) of ANILCA (“[w]ithin the Monument[], the

Secretary shall not permit the . . . harvesting of tim-

ber”). Marsh CR 168.

On December 27, 1984, the Ninth Circuit reversed the

preliminary injunction. Angoon v. Marsh, 749 F.2d 1413

, Tab. Volume II contains excerpts from Angoon v. Hodel,

No. A83-234 Civ., which are cited as follows: Hodel CR

Tab ——.

(9th Cir. 1984). The case was remanded to the district

court, where Angoon v. Marsh was consolidated with

Shee Atika v. Sierra Club I, No. A83-209, Shee Atika v.

Sierra Club II, No. A83-234, and Sierra Club v. Watt,

No. A84-001. The case was renamed Angoon v. Hodel,

No. A83-234 Civil. Hodel CR 58. At that time Shee

Atika had pending a motion for summary judgment.

This motion did not address the validity of the Corps’

§ 404 permit or the adequacy of the EIS.

The Corps’ EIS was completed in October, 1984. ER

00136. However, the Corps did not issue its Record of

Decision on the § 404 permit until February 25, 1985.

ER 00325. Soon thereafter, the district court issued an

order requiring Sierra Club/Angoon to file a consolidated

complaint. This complaint incorporated a new claim that

the § 404 permit which was issued, or about to be issued,

pursuant to the Corps’ February 25, 1985 decision was

in violation of Sections 101 and 102 of the NEPA. The

court further ordered that additional briefing on the

existing summary judgment motions be filed within 30

days. (See Minute Order, March 4, 1985, Hodel CR 58,

Exhibit A, attached; ER 00001, 15-16, 19.)

Upon the filing of the consolidated complaint in An-

goon v. Hodel on April 29, 1985, ER 0001, Shee Atika

and the federal defendants moved anew for summary

judgment on all claims. ER 00111, 00113. On May 21,

1985, Sierra Club/Angoon filed a cross-motion for Par-

tial Summary Judgment re: inadequacy of EIS for Fail-

ing to Study Exchange. ER 00116.?

As the foregoing facts demonstrate, the time period

between the Corps’ final decision and the submission of

defendants’ consolidated motions for summary judgment

on all claims was extremely limited. Moreover, during

this time the parties were required to prepare various

2 This cross-motion was subsequently resubmitted by stipulation

on June 18, 1985. Hodel CR 140.

EEE eo EN OR

briefs on subsistence and other issues, pursuant to court

order. Hodel CR 58, CR 83. For this reason, Sierra

Club/Angoon cross-moved for partial summary judgment

on the limited question of the adequacy of the EIS vis-a-

vis its failure to study the alternative of a land ex-

change, while reserving for future consideration other

violations of NEPA set forth in plaintiffs’ consolidated

complaint.

Because of the complicated nature of the case, the

number of issues involved, the limited amount of time |

for discovery following the Corps’ issuance of its deci-

sion, the possibility that success on plaintiffs’ cross-

motion for summary judgment would make a lengthy

and burdensome consideration by the court of other

NEPA issues unnecessary, Sierra Club/Angoon re-

sponded to Shee Atika and the federal defendants’ mo-

tions for summary judgment by stating that complete

resolution of all of plaintiffs’ claims under NEPA was

inappropriate at that time. Sierra Club/Angoon made

clear that the adequacy of the EIS in light of the failure

to study exchange was only one of plaintiffs’ NEPA al-

legations, and that additional time was needed for dis-

covery so that plaintiffs could fully present their case on

these points. (Sierra Club/Angoon’s Reply to Motion to

Dismiss by Shee Atika and Federal Defendants, May 21,

1985, Hodel CR 119. Attached as Exhibit B.) Counsel

for Sierra Club/Angoon also submitted an affidavit pur-

suant to Rule 56(f), Fed.R.Civ.P., requesting additional

time to conduct discovery and thus op osing considera-

tion of all EIS-related claims at that time. In support,

this affidavit cited the numerous affidavits and admis-

sions already on file which demonstrated the existence of

controverted material issues of fact. (Plaintiffs’ Reply

In Support of Cross-Motion Summary Judgment on EIS

Inadequacy Issue. Affidavit of Lewis F. Gordon, June 18,

1985, Hodel CR 143. Attached as Exhibit C.) Because

the district court granted plaintiffs’ cross-motion for par-

tial summary judgment, counsel’s 56(f) affidavit and the

other claims to which it related were never ruled upon

below. See ER 00045, 00053-65; Hodel CR 146.

ARGUMENT

In reviewing the grant or denial of summary judg-

ment, the appellate court is faced with the same task

and governed by the same standard as that before the

district court. Jewel Companies v. Pay Less Drug Stores

Northwest, 741 F.2d 1555, 1559 (9th Cir. 1984). The

court must determine, “on the basis of the pleadings,

affidavits, depositions and other evidence available at the

time the motion was made,” whether there are any

genuine issues of material fact and whether either party

is entitled to prevail as a matter of law. Jewel, 741 F.2d

at 1559; Fed.R.Civ.P. 56(c). The appellate court’s re-

view is to be de novo (State of Alaska v. United States,

754 F.2d 851, 853 (9th Cir. 1985), cert. denied, 016

S.Ct. 3383 (1985); Callahan v. Woods, 736 F.2d 1269,

1272 (9th Cir. 1984)), and all evidence, facts, and in-

ferences that can be drawn from the depositions, admis-

sions, and affidavits on file must be viewed in the light

most favorable to the party opposing summary judgment

(Aronsen v. Crown Zellerbach, 662 F.2d 584, 591 (9th

Cir. 1981), cert. denied, 459 U.S. 1200 (1983); Spec-

trum Financial Companies v. Marconsult, Inc., 608 F.2d

377, 380 (9th Cir. 1979), cert. denied, 466 U.S. 936

(1980) ).

As Judge Sneed has previously noted, the granting of

summary judgment is appropriate only where there is

mo genuine issue as to any material fact. Hutchinson v.

United States, 677 F.2d 1822, 1825 (9th Cir. 1982).

In making this determination, the court has a duty to

consider the record as a whole (John v. State of Lou-

isiana, 757 F.2d 698, 711-712 (5th Cir. 1985)) includ-

ing documentary evidence previously submitted to the

court (Friends of the Earth v. Facet Enterprises, Inc.,

618 F.Supp. 532, 585 (D.N.Y. 1984)). The appellate

court, like the trial court, is precluded from resolving

factual disputes on motion for summary judgment (New

York Life Insurance Co. v. Baum, 707 F.2d 870, 871-72

(5th Cir. 1983)), and cannot “weigh the evidence, pass

upon credibility, or speculate as to the ultimate findings

of fact” (Aronsen, 662 F.2d at 591). Rather the court

must resolve all doubts in favor of the party opposing

summary judgment (F.S. Smithers & Co., Inc. v. Federal

Insurance Company, 631 F.2d 1364, 1366 (9th Cir.

1980) ), including doubts about the existence of a genu-

ine issue of material fact (Hector v. Wiens, 533 F.2d

429, 432 (9th Cir. 1976) (citing Moore’s Federal Prac-

tice 1 56.15(3) (1974) and citations therein)). See also

Lemelson v. TWR, Inc., 760 F.2d 1254, 1260-61 (Fed.

Cir. 1985).

Under these well-established principles, ithe granting

of summary judgment for Shee Atika-Sealaska on the

adequacy of the EIS and the validity of the § 404 permit

for the Cube Cove LTS was improper. In light of the

procedural posture of the case, as discussed above, it

becomes clear that upon reversing the district court’s

grant of summary judgment for Sierra Club/Angoon,

the appellate court erred in failing to remand the case

for further proceedings necessary to resolve the issues

remaining.

Under 28 U.S.C. § 2106, appellate courts are granted

broad powers to dispose of a case upon appeal. MGPC,

Inc. v. Dept. of Energy, 763 F.2d 422, 433-34 (TECA

1985), cert. denied, 106 S.Ct. 76 (1985). Despite the

fact that a party may have moved for summary judg-

ment in the court below, § 2106’s broad grant of author-

ity allows an appellate court to direct the entry of sum-

mary judgment in favor of a non-moving party when

justice requires. Id.; Martinez v. United States, 669 F.2d

568, 570 (9th Cir. 1982); MGPC, 763 F.2d at 434.

The exercise of this power, however, is appropriate “only

in the rare case” (E. C. Ernst, Inc. v. General Motors

Corp., 587 F.2d 105, 109 (5th Cir. 1976)), “since such

a determination is best left to the trial court... .”

(MGPC, 763 F.2d at 434). Entry of summary judgment

by an appellate court is therefore appropriate only

“when it would be just under the circumstances” (id.),

such as when “it is very clear that all material facts are

before the reviewing court” (Ernst, 5387 F.2d at 109),

and no purpose would be served by remanding the issue

to the district court (Shaw v. FBI, 749 F.2d 58, 63

(D.C.Cir. 1984) ). This is not such a case.

As Judge Sneed has cautioned, “[w]le are mindful too

that summary judgment procedures should be used with

care and restraint.” Hutchinson, 677 F.2d at 1325.

This caution is apt, because “the court must keep in

mind that the entry of summary judgment terminates

the litigation, or an aspect thereof” (Jones v. Howe

Military School, 604 F.Supp. 122, 124 (D.Ind. 1984) ),

and “an improvident grant may deny a party a chance

to prove a worthy case” (Lemelson, 760 F.2d at 1260

(quoting D.L. Auld Co. v. Chroma Graphics Corp., 714

F.2d 1144, 1146 (Fed.Cir. 1983) )).

Thus, entry of summary judgment by the appellate

court should occur only when it is absolutely clear that

there are no genuine issues of fact and the parties have

had a full and fair opportunity to raise disputed issues

of fact, counter the evidence submitted by an adversary,

and present their case. MGPC, 763 F.2d at 434; Calla-

han, 736 F.2d at 1275; Martinez, 669 F.2d at 570; Ithaca

College v. N.L.R.B., 623 F.2d 224, 229 (2nd Cir. 1980)

(quoting 6 Moore’s Federal Practice 956.12 at 334

(1976) ), cert. denied, 449 U.S. 975 (1980); Ernst, 537

F.2d at 109. Where there are issues most properly left

to the trial court, the appropriate course is to reverse

the entry of summary judgment and remand the matter

to the district court for further proceedings. Jewel Com-

panies, 741 F.2d at 1567; Callahan, 736 F.2d at 1269:

Suskind v. North American Life & Casualty Co., 607

F.2d 76, 84 (3rd Cir. 1979). See, e.g., Grazing Fields

Farm v. Goldschmidt, 626 F.2d 1608, 1075 (1st Cir.

1980) (district court is in better position to examine

sufficiency of EIS with aid, if necessary, of further

briefs).

These principles are no less applicable where the

parties have filed cross-motions for summary judgment.

See Smithers, 631 F.2d at 1366 (in case involving cross-

motions for summary judgment, Ninth Circuit states

that moving party must demonstrate absence of issues

of material fact and entitlement to judgment as matter

of law, with evidence and inferences viewed favorably to

opposing party and all doubts resolved in opposing

party’s favor) ; Callahan, 736 F.2d at 1275 (in case in-

volving cross-motions for summary judgment, Ninth Cir-

cuit declines to grant summary judgment for appellate

because appellee would be unfairly deprived of opportu-

nity to present pertinent evidence). Although for pur-

poses of his or her own motion for summary judgment

a party may submit an affidavit stating that there are

no disputed issues of fact and that summary judgment

should be granted, this admission applies only to the legal

theory on which the party has submitted such motion,

but does not constitute a waiver of the party’s right to

raise disputed issues of fact with regard to an adver-

sary’s contentions:

“A party moving for summary judgment ... may

make certain concessions in favor of his adversary

for the purposes of the motion that do not carry over

and support summary judgment for the adversary.”

Ernst, 587 F.2d at 109 (quoting Moore, 6 Federal Prac-

tice 1 56.12 at 56-337 (1976). See also John, 757 F.2d

at 705; 10A Wright, Miller and Kane, Federal Practice

and Procedure, Civil, § 2720 at 20-22 (1983).

Thus, the court, whether at the trial or appellate level,

must review each party’s motion independently and deter-

10a

mine whether that party has met the strict burden of

demonstrating that there are no disputed issues of mate-

rial fact and that judgment is appropriate on those

claims as a matter of law. United States v. Fred A.

Arnold, Inc., 573 F.2d 605, 606 (9th Cir. 1978); Lee v.

Dayton Power and Light Co., 604 F.Supp. 987, 993 (D.

Ohio 1985) ; District 12, United Mine Workers of Amer-

ica v. Peabody Coal Co., 602 F.Supp. 240, 242 (D.IIl.

1985). The court must take care to ensure that in con-

sidering cross-motions for summary judgment, one or

the other of the parties is not deprived of its opportunity

to be heard on other issues. Levine v. Fairleigh Dickin-

son University, 646 F.2d 825 (8rd Cir. 1981). In re-

versing a lower court’s grant of summary judgment, the

appellate court must therefore decline to enter summary

judgment for the opposing party if a genuine issue of

fact exists (John, 757 F.2d at 705; Fred A. Arnold, 573

F.2d at 606), and should instead remand the case for

resolution of those issues which the district court did not

pass upon in its initial determination (Hettleman v.

Bergland, 642 F.2d 638, 68 (4th Cir. 1981); Grazing

Fields, 626 F.2d at 1074-75; Connolly v. Pension Benefit

Guaranty Corp., 581 F.2d 729, 734-35 (9th Cir. 1978),

cert. denied, 440 U.S. 935 (1979) ).

The principles outlined above are particularly appli-

cable here. In moving for partial summary judgment,

plaintiffs Sierra Club/Angoon specifically limited their

motion to consideration of whether the Corps was re-

quired to study a land exchange as a reasonable alterna-

tive to the LTF and related harvesting. If, as eventually

happened, that motion was granted, a complicated trial

on other NEPA issues, requiring the testimony of ex-

pert witnesses, could be avoided, and both the court and

the parties could be saved considerable, and avoidable,

delay and expense.

As stated both in their response to defendants’ con-

solidated motions for summary judgment (see Exhibit B)

lla

and in the affidavit submitted pursuant to Rule 56(f)

(see Exhibit C), plaintiffs believed that substantial

factual disputes relating to their other NEPA claims

existed, but because of the limited time for discovery,

they were unable to fully document these facts in opposi-

tion to defendants’ motions. Plaintiffs also noted that

genuine issues of material fact were raised by the af-

fidavits previously submitted with regard to earlier

stages of the proceeding. As noted above, the court must

make a determination of whether a genuine issue of fact

exists of the basis of the record as a whole (John, 757

F.2d at 711-12), and documentary evidence already in

the record is to be considered (Friends of the Earth,

618 F.Supp. at 535). Plaintiffs’ declarations, together

with the surrounding circumstances, compel the conclu-

sion that genuine issues of fact existed concerning the

validity under NEPA of Shee Atika’s § 404 permit for

reasons other than the EIS’ failure to study the exchange

alternative, and the awarding of summary judgment in

favor of Shee-Atika-Sealaska was therefore inappro-

priate.

As previously discussed, summary judgment proce-

dures must be used cautiously, so as not to deprive a

party of a fair opportunity to be heard. Hutchinson,

677 F.2d at 1325. See Fountain v. Filson, 336 U.S. 681

(1949) (swa sponte entry of summary judgment by court

of appeals was error, because it deprived party against

whom judgment was entered opportunity to dispute facts

material to that claim). For this reason, the Federal

Rules allow for situations, such as that presented here,

where additional time is needed in order to allow the

opposing party a fair opportunity to present its case.

Alghanim v. Boeing Company, 477 F.2d 148, 148 (9th

Cir. 1973); Argus Inc. v. Eastman Kodak Co., 552 F.

Supp. 589, 600 (D.N.Y. 1982).

“The purpose of the rule is to prevent premature

grants of summary judgment in cases where, given

12a

adequate time to obtain discoverable material from

the moving party, the party opposing the motion

might be able to establish genuine issues of fact

which would preclude summary judgment.” (McVan

v. Bolco Athletic Co., 600 F.Supp. 375, 378 (D.Pa.

1984) .)

As with other affidavits submitted in opposition to a mo-

tion for summary judgment, an affidavit submitted pur-

suant to Rule 56(f) “should be treated liberally” (Patiy

Precision v. Brown & Sharpe Manufacturing Co., 742

F.2d 1260, 1264 (10th Cir. 1984)), and appropriate re-

lief (either a continuance or denial of the summary

judgment motion) should be granted “almost as a matter

of course” (McVan, 600 F.Supp. at 878 (quoting Ward

v. United States, 471 F.2d 667, 670 (8rd Cir. 1973) );

Costlow v. United States, 552 F.2d 560, 568-64 (8rd

Cir. 1977) ).

“Further, as an additional precaution against deny-

ing a party its chance to prove a worthy case, any

doubt as to the presence or absence of disputed is-

sues of material fact must be resolved in favor of

the presence of disputed issues, or in other words in

favor of the party opposing summary judgment.”

(Lemelson, 760 F.2d at 1261 (citations omitted) ;

Hector v. Weins, 533 F.2d 429, 482 (9th Cir. 1976) 4

Doff v. Brunswick Corp., 872 F.2d 801, 804 (9th

Cir. 1967), cert. denied, 389 U.S. 820.)

Without an opportunity to gather relevant information

through discovery, or at the very least to submit affida-

vits presenting such disputed facts as can be established

by the information already on hand, Sierra Club/Angoon

will have been deprived of their opportunity to be heard.

It is important to note that plaintiffs were given no no-

tice of the fact that the appellate court intended to issue

a final ruling on all NEPA claims. See Yashon. v. Greg-

ory, 737 F.2d 547, 552 (6th Cir. 1984) (court must

13a

afford party against whom sua sponte summary judg-

ment is to be entered notice and opportunity to respond).

Pertinent facts and legal arguments pertaining to other

defects in the Corps’ EIS and resulting § 404 permit

were neither presented in the parties’ briefs nor argued

before the panel. Both Sealaska and the Federal Defend-

ants stated in their opening briefs that the question

presented was whether the EIS was required to give de-

tailed consideration to the alternative of exchange and

the parties’ NEPA appeals were clearly based only on

that part of the district court’s Nov. 27, 1985 ruling pro-

hibiting issuance of a permit for construction of the

LTF until the exchange alternative was explored. While

Shee Atika’s statement of the issues is somewhat con-

voluted, Shee Atika’s briefs deal only with the exchange

alternative issue. The Court’s misunderstanding about

the existence of disputed facts is perhaps understand-

able, however, because of the misleading statements put

forth by Shee Atika. For instance, in its Opening Brief

at 13 Shee Atika states (erroneously) that “[t]he only

contention advanced by Sierra Club was that the Corps

had violated NEPA by not conducting an in-depth study

of exchange. Sierra Club did not challenge in any man-

ner the environmental findings of the Corps.” Opening

Brief For Shee Atika, Inc., Excerpts Attached as Ex-

hibit D. In its brief, Shee Atika repeatedly refers to

“dispositive motions” submitted by the parties. This mis-

leading characterization of the facts with likewise pre-

sented to the Court in Shee Atika’s December 6, 1985

Motion for Summary Reversal, in which Shee Atika al-

leged to the Court that “the only dispute concerning the

legal adequacy of the EIS is whether it sufficiently ad-

dressed the alternative of an off-island exchange.” At-

tached as Exhibit E.; emphasis in original.

As this Court has noted, “[I]n passing upon requests

for additional time to respond to a motion for summary

judgment . . . the absolute right of a party to respond,

PE i ee ee SS. OR ee A eS ae

l4a

must be taken into consideration.” Alghanim, 477 F.2d

at 148. Here Sierra Club/Angoon have not been granted

a fair opportunity to respond. Because the district court

granted plaintiffs’ cross-motion for summary judgment, \

thus invalidating the Corps’ EIS, the Rule 56(f) motion

was never passed upon. The district court thus never

had the opportunity to exercise the discretion appropri-

ately entrusted to it when a party files an affidavit under

Rule 56(f) (Patty Precision, 742 F.2d at 1264-65), and

plaintiffs were deprived of their entitlement of a ruling

on their objection before the court disposed of the entire

case (Yashon, 737 F.2d at 552-53). “Even if the plain-

tiff were incorrect in arguing that the record was in-

sufficient, he was entitled to be so informed in order

that he might respond to the district court’s proposal to

grant summary judgment with whatever arguments and

evidence in the record he could muster.” Jd. at 552;

Costlow, 552 F.2d at 564. Without the benefit of either

additional evidence that could be presented upon further

discovery or submission of a formal response based on

the evidence the party opposing summary judgment al-

ready has, the court is hampered in its ability to deter-

mine that summary judgment is truly appropriate.

MGPC, 763 F.2d at 428; Sharlitt v. Gorinstein, 535 F.2d

282, 283-84 (5th Cir. 1976) ; Macklin v. Butler, 553 F.2d

525, 528 (7th Cir. 1977).

CONCLUSION

Almost thirty years ago the Supreme Court cautioned

that parties facing a swa sponte grant of summary judg-

ment must be given an opportunity to dispute the facts

and present their case. See Fountain v. Filson, 336 U.S.

681 (1949). In more recent times, the courts of appeal

have noted that a party should not be required “to need- |]

lessly confuse the issues of a case and additional burdens

to the workload of the trial court when the correct dis-

position of the matter merely requires the court to rule

15a

on the motions pending before it.” Patty Precision, 742

F.2d at 1265. Here plaintiffs properly tendered their

objection to final disposition on their NEPA claims with-

out the benefit of further time for discovery. Their al-

legations of disputed issues of facts must be treated

liberally and all doubts must be resolved in their favor.

The court below has neither passed on this objection nor

afforded plaintiffs an opportunity to make such argu-

ments as they might. Evidence already in the record

demonstrates that material issues of fact are disputed

by the parties. Arguments pertaining to other aspects of

the parties’ compliance with NEPA were not briefed or

argued before this Court. For all of the foregoing rea-

sons, the entry of summary judgment for Shee Atika-

Sealaska on the validity of the EIS and the § 404 permit

for the LTF was in error, and the case should be re-

manded to the district court for trial on the issues

remaining.

Respectfully submitted.

FURTH, FAHRNER, BLUEMLE

& MASON

SIERRA CLUB LEGAL

DEFENSE FUND

By /s/ Jeffrey A. Glick

JEFFREY A. GLICK

DATED: November 19, 1986

By /s/ Durwood J. Zaelke

DuRWooD J. ZAELKE

DATED: November 19, 1986

16a

EXHIBIT A

MINUTES OF THE

UNITED STATES DISTRICT COURT

DISTRICT OF ALASKA

. Case No. A83-134 Civ.

The HONORABLE JAMES VON DER HEYDT

SHEE AKITA, INC.

Ve —

SIERRA CLUB, INC., et al.

Deputy Clerk Reporter

—— Jim Meyers — Dolores Runner

X Colleen Cannon —— Janis Roller

—— Ida Romack

APPEARANCES: PLAINTIFF:

DEFENDANT:

PROCEEDINGS: MINUTE ORDER FROM CHAMBERS:

The motion of the City of Angoon, the Angoon Com-

munity Association and the Native residents of the City

of Angoon to intervene is granted. The clerk shall file

the proposed answer lodged with the court. See Docket

#29.

Sierra Club’s motion to join the United States as a

party is granted, and accordingly it is ordered that the

United States be joined as a party to this action. The

17a

motion to join the Angoon Village Association is denied

as moot. See Docket #31.

The United States’ motion to file an amicus brief,

Docket #387, is granted.

Sierra Club’s motion for leave to file a supplemental

brief, Docket #49 is granted.

Sierra Club’s motion to consolidate A83-A234, A84-001,

A84-126 and A83-20 is granted. The court finds all the

eases involve: overlapping issues, but involve different

parties. The court finds it will promote fairness and

judicial economy to allow all interested parties to brief

an issue prior to the court reaching that issue on the

merits. Sierra Club and Angoon shall be aligned as party

plaintiffs; the United States and its agencies and Shee

Atika shall be aligned as party defendants. Plaintiffs

shall file an amended complaint consolidating all issues

within 30 days of the date of this order defendants shall

present all claims in their answer and counterclaim to

the consolidated amended complaint. All subsequent fil-

ings shall be in the above action, A83-234.

Plaintiff’s motion for scheduling of joint oral argument,

Docket # 51, is denied as moot.

The court finds all parties who have not filed briefs

on the issues except the subsistence issues, raised in Shee

Atika’s motion for summer judgment should have an op-

portunity to do so prior to court action on the motion.

Accordingly, it is ordered that any additional primary

briefs on the issues raised in that motion shall be filed

within 30 days of this order; all reply briefs shall be

filed within 15 days thereafter.

However, the court finds that all parties have had an

adequate opportunity to brief the subsistence issues

raised by Shee Atika in A84-126, and argued before this

court April 20, 1984. Unless objection is heard within 15

days from the date of this order, the court will consider

18a

the subsistence issues ripe for decision based on the briefs

currently submitted in A84-126 and A83-234.

DATED March 4, 1985

ec: Middleton, Gordon, Landon

INITIALS: [Illegible]

Deputy Clerk

19a

EXHIBIT B

Frederick P. Furth

FURTH, FAHRNER, BLUEMLE & MASON

201 Sansome Street, Suite 1000

San Francisco, California 94104

(415) 433-2070

Lewis F’. Gordon

BAILY & MASON

1130 West Sixth Avenue, Suite 100

Anchorage, Alaska 99501

(907) 276-4331

Durwood J. Zaelke

SIERRA CLUB LEGAL DEFENSE FUND, INC.

419 Sixth Street, Suite 321

Juneau, Alaska 99801

(907) 586-2751

Attorneys for City of Angoon

and Sierra Club

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

Case No. A83-234 Civil

(Consolidated )

SHEE ATIKA, INC.,

ond Plaintiff,

SIERRA CLUB, INC.,

Defendant.

[Filed May 21, 1986]

REPLY TO MOTION TO DISMISS

BY SHEE ATIKA AND FEDERAL DEFENDANTS.

20a

INTRODUCTION

This responsive brief addresses the motions to dismiss

by Shee Atika and Federal Defendants.' It addresses the

issues order raised by Shee Atika. Separate reply briefs

are being filed on § 22(k), and the EIS (the issue that

failure to study the land exchange alternative makes the

EIS inadequate).

ARGUMENT

1. Section 22(k) ANCSA

This issue is addressed in the separate reply brief sub-

mitted this same date.

2. Section 17(b) ANCSA

Angoon/Sierra Club state a claim under §17(b) of

ANCSA, as applied to Shee Atika’s conveyance under

§ 506(c) (2) of ANILCA. Section 17(b) requires the

Secretary of Interior to reserve in any Native conveyance

such easements as the Secretary of Agriculture deter-

mines are necessary “to insure that the larger public in-

terest is protected.” Conf. Com. Rep. No. 746, 92nd

Cong., 1st Sess., reprinted in 1971 U.S. Code Cong. &

Admin. News 2247-49; Solicitor’s Opinion 82 I.D. (No.

7) 325 (July 8, 1975). This mandatory duty includes

but is not limited to, “a full right of public use and

access for recreation, [and] hunting... .” §17(b) (1).

See also Alaska Public Easement Defense Fund v. An-

drus, 435 F. Supp. 664 (D. Alaska 1972).

The scope of the “larger public interest” protected by

the easements was determined by Congress, for Admiralty

1 Although Federal Defendants’ Motion is entitled Motion for

Summary Judgment, most of their arguments focus on whether

plaintiffs’ complaint states claims for which relief may be granted.

The issues whose merits they discuss at greater length have re-

ceived correspondingly more detailed treatment here and in plain-

tiffs’ other briefs filed this same date.

2la

Island and the Cube Cove lands, in § 101 (general pro-

tective policy for wilderness and subsistence), § 503(c)

(mandatory duty to protect Admiralty), § 503(d) (man-

datory duty to prohibit timber harvesting), § 506(a) (2)

(mandatory duty to ensure that nothing

6. Sections 101 and 102 of NEPA

The EIS violates NEPA sections 101 and 102 by, inter

alia, failing to consider the alternative of a land ex-

change. This issue is addressed in one of Angoon/Sierra

Club’s separate reply briefs submitted this same date.

Plaintiffs allege that the EIS is inadequate for other

reasons as well, but until they have the opportunity for

further factual development, including discovery, and

further legal analysis, plaintiffs are not prepared to pre-

sent their case on these points.

7. Due Process Clause

Defendants assert that Angoon/Sierra Club fail to

state a claim that the Secretary’s decision to convey Ad-

miralty lands to Shee Atika violated the due process

clause of the Constitution. They present three bases for

this assertion: 1) the contacts between Shee Atika and

the Secretary of Interior were made pursuant to regula-

tion, Fed. Defendants Brief at 6; 2) even if the ex parte

contacts were improper, Angoon/Sierra Club cannot claim

a due process violation because they were not deprived

of a protected property interest, Fed. Defendants Brief

at 7; and 3) Angoon/Sierra Club’s due process claim

was mooted by § 315 of Public Law 97-394. Shee Atika

Brief at 24. As shown below, each of these arguments

is without merit.

Federal defendants suggest that Shee Atika complied

with the procedure of 43 C.F.R. $4.5 when it urged

then-Secretary of Interior Watt to personally assume

jurisdiction over the Shee Atika conveyance appeal. See

letters of Shee Atika attorney Richard A. Baenen to Sec-

retary James G. Watt, attached

22a

III. CONCLUSION

For the foregoing reasons, defendants’ Motions to Dis-

miss and for Summary Judgment should be denied.

Respectfully submitted,

FURTH, FAHRNER, BLUEMLE &

MASON

BAILY & MASON

SIERRA CLUB LEGAL DEFENSE

FUND, INC.

/s/ Durwood J. Zaelke

By: DuRwoob J. ZAELKE

Attorneys for Plaintiffs

DATE: 5/21/85

The undersigned hereby certifies that on the 21st day

of May, 1985, the attached documents were mailed to the

attorneys of record.

/s/ Debbie Traver

Subscribed and sworn to before me the date last

above written.

/s/ Teresa M. Torres

Notary Public

My Commission expires 3/22/89

23a

EXHIBIT C

Frederick P. Furth

FURTH, FAHRNER, BLUEMLE & MASON

201 Sansome Street, Suite 1000

San Francisco, California 9404

(415) 433-2070

Lewis F. Gorden

BAILY & MASON

1130 West Sixth Avenue, Suite 100

Anchorage, Alaska 99501

(907) 276-4331

Durwood J. Zaelke

SIERRA CLUB LEGAL DEFENSE FUND, INC.

419 Sixth Street, Suite 321

Juneau, Alaska 99801

(907) 586-2751

Attorneys for City of Angoon

and Sierra Club

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

Case No. A83-234 Civil

(CONSOLIDATED)

SIERRA CLUB, INC., et al.,

Plaintiffs,

Vv.

SHEE ATIKA, INC., et al.,

Defendants.

PLAINTIFFS’ REPLY IN SUPPORT OF

CROSS MOTION FOR PARTIAL SUMMARY

JUDGMENT ON EIS INADEQUACY ISSUE

24a

INTRODUCTION

This memorandum is a reply to federal defendants’ and

Shee Atika’s responses, filed June 10, 1985, to plaintiffs’

Cross Motion for Partial Summary Judgment re Inade-

quacy of EIS for Failing to Study Exchange Alternative,

originally filed May 21, 1985, and resubmitted by stipu-

lation on June 18, 1985.7

ARGUMENT

1. Defendants Do Not Dispute That the Law Requires

a Broad Definition of the Timber Project, That Al-

ternatives Must Be Addressed to the Larger Proj-

ect, and That the EIS Contains No Such Alterna-

tives.

Federal defendants and Shee Atika (collectively ‘de-

fendants’) do not dispute that the authorities cited by

plaintiff compel both a broad definition of Shee Atika’s

project on Admiralty, and a discussion of reasonable

alternatives to that broadly defined project. Nor do de-

fendants dispute that the EIS contains no such alterna-

tives to the timber harvest operation as a whole.

As discussed in plaintiffs’ memorandum in support of

the cross motion filed May 21 (“EIS Memorandum’’),

Corps regulations require an extremely broad definition

of the public purpose of a project. 33 CFR Part 230,

App. B, 11b(4). If an alternative in this particular

case is “remote and speculative.” However, Shee Atika’s

and the federal defendants’ definition of “remote and

speculative’ would make it unlikely that any alterna-

tive to the proposed timber operation as a whole would

be considered in the EIS. The law requires the Corps to

1 Plaintiffs oppose federal defendants’ attempt to obtain sum-

mary judgment on all potential claims regarding the adequacy of

the Corps’ EIS. Plaintiffs cannot at this time present by affidavit

facts justifying this opposition, since no discovery on additional

inadequacy issues has been conducted. Plaintiffs submit an affi-

davit pursuant to Federal Rules of Civil Procedure 5B(8), attached

hereto, in support of their opposition.

25a

consider alternatives to the broader timber harvesting

project, not just to log transport, and to consider alter-

nate locations for the project. Timber harvesting at an-

other location off-Admiralty is one of the few alterna-

tives plaintiffs know of that would satisfy the project’s

broad purposes of increased timber production in South-

east and increased revenues for Shee Atika shareholders.

Defendants should not be able to use the “remote and

speculative” test to circumvent the explicit requirements

of the Corps regulations and NEPA case law regarding

the scope and.content of the required alternatives. The

Corps must consider alternatives to the entire project,

including alternate locations, and discussing the exchange

option is an obvious, straightforward and reasonable way

to meet this obligation.

Dated: June 18, 1985

Respectfully submitted,

FURTH, FAHRNER, BLUEMLE &

MASON

BAILY & MASON

SIERRA CLUB LEGAL

DEFENSE FUND

/s/ Lewis F. Gordon

LEwIs F.. GORDON

/s/ Durwood Zaelke

DURWOOD ZAELKE

Attorneys for Plaintiffs

The undersigned hereby certifies that on the 18th day

of June, 1985, the attached documents were mailed to

the attorneys of record.

/s/ Debbie Traver

Subscribed and sworn to before me the date last above

written.

/s/ [Illegible]

Notary Public

My Commission expires 7/25/85

26a

Frederick P. Furth

FURTH, FAHRNER, BLUEMLE & MASON

201 Sansome Street, Suite 1000

San Francisco, California 9404

(415) 4383-2070

Lewis F. Gordon

BAILY & MASON

1130 West Sixth Avenue, Suite 100

Anchorage, Alaska 99501

(907) 276-4331

Durwood J. Zaelke

SIERRA CLUB LEGAL DEFENSE FUND, INC.

419 Sixth Street, Suite 321

Juneau, Alaska 99801

(907) 586-2751

Attorneys for City of Angoon

and Sierra Club

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

Case No. A83-234 Civil

(CONSOLIDATED)

SIERRA CLUB, INC., et al.,

Plaintiffs,

SHEE ATIKA, INC., et al.,

Defendants.

AFFIDAVIT OF LEWIS F. GORDON

I, Lewis F. Gordon, being duly sworn, depose and say

as follows:

a Ali Py Oa ait Rt

27a

1. I am legal counsel for the Sierra Club and the City

of Angoon in the above-referenced action. I submit this

affidavit pursuant to Federal Rules of Civil Procedure

56(f) in support of Plaintiffs’ Reply in Support of Cross

Motion for Partial Summary Judgment on EIS Inade-

quacy Issue filed this same date.

2. Plaintiffs cannot at this time, for reasons stated

below, present by affidavit facts essential to justify their

opposition to defendants’ motion for summary judgment

on plaintiffs’ -claims regarding the inadequacy of the

Corps’ EIS on the log transfer facility.

3. Plaintiffs have not commenced any discovery on the

issue of tne inadequacy of the EIS for the following

reasons. -

4, First, the Corps did not issue its Record of Decision

on the 404 permit until February 25, 1985, and the con-

solidated complaint, filed pursuant to court order and

raising the issue of the inadequacy of the EIS for the

first time, was not filed until April 29, 1985. In this

short period of time, plaintiffs’ counsel has been extremely

busy on other aspects of this litigation, preparing various

briefs on subsistence and other issues pursuant to the

court’s briefing schedules. There has been very little

time for preparation of discovery requests and for sched-

uling and taking depositions.

5. Second, plaintiffs believe that success on their cross

motion for partial summary judgment on the inadequate

alternatives issue would make further discovery on other

NEPA issues unnecessary. In the interest of avoiding

potentially unnecessary discovery and litigation costs,

plaintiffs have put off discovery until after resolution of

their Cross Motion for Partial Summary Judgment re

Inadequacy of EIS for Failing to Study Exchange Al-

ternative.

6. Plaintiffs’ discovery plan regarding the inadequacy

of the EIS would in part include the following: (1)

28a

request production of all drafts of the EIS, related docu-

ments, and comments submitted; (2) have plaintiffs’ ex-

perts analyze these materials; (3) take depositions of

preparers and commentators, especially representatives

of state and local governments; (4) have plaintiffs’ ex-

perts analyze deposition testimony.

6. Even though formal discovery has not been com-

menced regarding the inadequacy of the EIS, affidavits

previously submitted in this lawsuit by experts and sub-

sistence users regarding ‘the subsistence issues show that

there are contested issues of fact with regard to the

environmental and subsistence effects of the project. De-

fendants have admitted that these issues of fact are in

dispute. See, e.g., Shee Atika’s Supplemental Brief on

Subsistence Issues, filed April 18, 1985, at 2, n.2. These

affidavits suggest potential triable issues of fact regard-

ing the adequacy of the EIS which will be further ex-

plored during the discovery process.

/s/ Lewis F. Gordon

LEWIS F. GORDON

SUBSCRIBED AND SWORN to before me this 18th

day of June, 1985.

/8/ Deborah A. Traver

Notary Public in and for Alaska

My commission expires: 8/17/86

29a

EXHIBIT D

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

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

CITY OF ANGOON, et al.,

Plaintiffs-Cross-A ppellants,

DONALD P. HoDEL, SECRETARY OF THE INTERIOR, et al.,

Defendants,

and

SHEE ATIKA, INC.,

Defendant-A ppellant,

and

SEALASKA, INC.,

Defendant-A ppellant.

On Appeal from the United States District Court

for the District of Alaska

OPENING BRIEF FOR SHEE ATIKA, INC.

RICHARD A. BAENEN, ESQ.

PIERRE J. LAFORCE, ESQ.

WILKINSON, BARKER, KNAUER

& QUINN

1735 New York Avenue, N.W.

Washington, D.C. 20006

(202) 783-4141

JACQUELYN R. LUKE, Esq.

MIDDLETON, TIMME & MCKAY

601 West 5th Ave., Ste. 420

Anchorage, Alaska 99501

(907) 276-3390

- Attorneys for Appellant

Shee Atika, Inc.

30a

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

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

CITY OF ANGOON, et al.,

Plaintiffs-Cross-A ppellants,

DONALD P. HODEL, SECRETARY OF THE INTERIOR, et al.,

_ Defendants,

SHEE ATIKA, INC.,

Defendant-A ppellant,

and

SEALASKA, INC.,

Defendant-A ppellant.

On Appeal from the United States District Court

for the District of Alaska

OPENING BRIEF FOR SHEE ATIKA, INC.

ISSUES PRESENTED

In satisfaction of the Federal Government’s obliga-

tions under the Alaska Native Claims Settlement Act of

1971, Congress directed the conveyance of specific lands

3la

to Shee Atika. Prior judicial rulings (including one

from this Court) established that this conveyance was

for the economic betterment of Shee Atika and that the

lands could be developed, and that this was clearly in-

tended and provided by Congress. Given the foregoing

background, the controlling questions presented by this

appeal are as follows:

I. Whether the District Court correctly interpreted

and applied NEPA in deciding that NEPA required the

Corps of Engineers, in the course of its EIS review for

a federal permit under Section 404 of the Clean Water

Act, to reexamine the policy decision regarding develop-

ment of the Shee Atika conveyance.

II. Whether NEPA can properly be construed to per-

mit a federal agency or reviewing court to impede or

prohibit development on private lands when it has been

concluded that the federal action under review will have

no adverse environmental effects, and where the sole jus-

tification for permit denial is the view of the federal

agency or reviewing court that the private lands should

not be developed. -

III. Whether NEPA authorizes denial of a federal

permit in an instance where it is established that (i)

the federal action under review will have no significant

adverse effects on the environment, (ii) the related pri-

vate activity (to be conducted on private lands) will like-

wise have no such effects, and (iii) where the sole basis

for denial is the perception of the federal agency (or

reviewing court) that another use should be made of the

private lands.

STATEMENT OF THE CASE

This is an interlocutory appeal of an injunction en-

tered by the United States District Court for the District

of Alaska on November 27, 1985, the injunction becoming

effective on December 11, 1985. Excerpts of Record

(“ER”) 45.

32a

A. Jurisdiction of the District Court

Jurisdiction was properly vested in the District Court

pursuant to 28 U.S.C. § 1881 and 28 U.S.C. § 13861.

B. Jurisdiction of the Court of Appeals

The jurisdiction of this Court is founded upon 28

U.S.C. §1292(a)(1) which confers appellate jurisdic-

tion with respect to “interlocutory orders of the District

Courts of the United States . . . granting, continuing,

modifying, refusing or dissolving injunctions. . . .”

C. Appealability of Order

The Order which is the subject of this appeal is an

injunction. Under the provisions of 28 U.S.C. § 1292

(a) (1), an interlocutory appeal lies with respect to an

order granting an injunction.

D. Timeliness of Appeal

The injunction order was entered on November 27,

1985, with the injunction becoming effective on December

11, 1985. Shee Atika’s notice of appeal was filed on

December 13, 1985. ER 130. The notice was timely

under 28 U.S.C. § 2107.

The Consolidated Complaint herein was filed effective

April 29, 1985. ER 1. Subsequently, the parties filed

dispositive motions and cross-motions on the claims raised

in the Consolidated Complaint. ER 108, 110, 111, 113,

114, 116. The District Court disposed of most of the

issues raised in these dispositive pleadings with a series

of three orders. The first two orders were issued on

October 17, 1985. One-of these orders was captioned

“Memorandum and Order on Subsistence and Trust Re-

sponsibility Issues” (ER 72), and the second was cap-

tioned “Memorandum and Order on Section 22(k)” (ER

93). On November 27, 1985, the District Court entered

an order captioned “Memorandum and Order on Remain-

33a

ing Issues Raised in Consolidated Complaint.” ER 45.

The November 27, 1985 Order is the subject of the

appeal filed by Shee Atika (No. 85-4413). Subsequently,

on December 27, 1985 the District Court issued a Partial

Final Judgement, pursuant to Rule 54(b), in conform-

ance of the three Memoranda/Orders earlier entered by

the District Court. ER 66. Appeals have been taken

from the Partial Final Judgment by the other parties

hereto (Nos. 86-3852, 86-3617, 86-3618). All of the ap-

peals were consolidated by order dated March 31, 1986.

On December 5, 1985, Shee Atika filed a motion in the

District Court seeking reconsideration of the November

27 injunction order. ER 118. That motion was sum-

marily denied by the District Court on December 6.

Clerk’s Record (“CR”) 173. Notice of appeal from the

November 27 injunction was filed by Shee Atika on De-

cember 138. ER 130. On December 17, 1985, Shee Atika

filed a Motion for Summary Reversal of District Court

Order and Injunction with this Court. (U.S.C.A. No. 85-

4413). That motion was denied by the Court by order

dated April 2, 1986.

forcing Shee Atika to accept exchange proposals it

would otherwise refuse cannot be deemed a proper

alternative. An exchange, if implemented, could re-

sult in withdrawal of the requested modification to

the permit by the permittee and no permit would be

issued (Corps Alternative 1). Upland activities

which could occur without a Corps permit would be

unlikely to continue. [ER 152-53.]

After completing its careful environmental review, the

Corps concluded that the construction/operation of Shee

Atika’s log transfer facility would have no significant

adverse effects on the environment. Subsequently, the

Corps of Engineers rendered its decision to issue a Sec-

tion 404 permit to Shee Atika for construction of its log

transfer facility. ER 325. The Corps found that the

proposed work was in the public interest and in accord

34a

with all applicable laws and regulations. The Record of

Decision prepared by the Corps also incorporated a num-

ber of required environmental protection conditions, to

further minimize impacts on the environment. Ibid.

Following issuance of the Record of Decision and issu-

ance of a Section 404 permit to Shee Atika, Sierra Club-

Angoon filed a dispositive motion seeking invalidation

of the permit for alleged violation of NEPA require-

ments. The only contention advanced by Sierra Club-

Angoon was that the Corps had violated NEPA by not

conducting an in-depth study of the land exchange “al-

ternative.” Sierra Club-Angoon did not challenge in any

manner the environmental findings of the Corps.

After the District Court consolidated all of the litiga-

tion relating to the Shee Atika conveyance, the parties

filed a flurry of dispositive motions seeking summary

judgment on most of the claims raised by Sierra Club-

Angoon. On October 17, 1985, the District Court entered

two Memoranda/Orders, ruling on many of the claims.

In one of these Memoranda/Orders, the District Court

dismissed Sierra Club-Angoon’s claim that Shee Atika

was statutorily barred from developing its Admiralty Is-

land lands. ER 72. In dismissing this claim and reject-

ing the Sierra Club-Angoon contention that Congress had

made the conveyance to Shee Atika for exchange purposes

only, the District Court made the following findings:

Congress never intended to force Shee Atika into

an exchange that was not voluntary on both sides.

[ER 78.]

It is not credible to believe that Congress could

intend to deprive Shee Atika of any economic use of

its lands, thereby depriving Shee Atika of much of

its bargaining power and forcing an exchange, with-

out making some mention of that intent in the legis-

lative history. [ER 81.]

35a

Congress .. . intended that any such exchange be

voluntary on both sides. Therefore, Section 506(c)

grants Shee Atika full economic and beneficial use of

its lands, subject of course to the valid existing

rights and easements referred to in that section. [ER

83-84. ]

[T]he court finds that Congress did not intend to

compel any exchange. [ER 84.]

The court declares that the lands conveyed to Shee

Atika on .December 9, 1981, pursuant to Section

506(c) of ANILCA, are “Settlement Act Lands”

that may be developed commercially by [Shee Atika]

.». BR 92.

One month later, the District Court issued a third

Memorandum/Order in which it disposed of the remain-

ing issues raised by the parties. ER 45. One of the

claims ruled on in that Memorandum/Order was Sierra

Club-Angoon’s claim that the EIS was defective for fail-

ure to consider the land exchange alternative. In a sur-

prising turnabout, the District Court ruled in Sierra

Club-Angoon’s favor, holding that NEPA required the

Corps of Engineers to evaluate the merits of the ex-

change alternative.2 The District Court thereupon in-

validated the Section 404 permit issued to Shee Atika

and enjoined Shee Atika “from all use of the Cube Cove

Log Transfer Facility until a valid § 404 permit has

been obtained.” ER 65. The rationale for the District

Court’s holding was expressed as follows:

Because it would be proper for the Corps to deny

a permit on the basis that a fair off-island exchange

would better serve the public interest, it would be

proper for the Corps to evaluate an off-island ex-

change as an alternative in the EIS. [ER 62.]

On December 5, 1985, Shee Atika filed a motion for

reconsideration, with supporting memorandum, with the

12 In each of the several other rulings made by the District Court

on the claims raised by Sierra Club-Angoon, it ruled in favor of

Shee Atika and the other defendants.

36a

District Court. ER 118. In that filing, Shee Atika dem-

onstrated that some basic assumptions made by the Dis-

trict Court were factually erroneous. Specifically, Shee

Atika addressed the District Court’s related assumptions

(i) that a land exchange was feasible (ER 59-61) and

(ii) that any funding appropriations needed for an ex-

change would involve only “minor legislative adjustment

or approval” (ER 59). Specifically, Shee Atika cited to

a recent consultant’s study, financed in part by Sierra

Club, which had made a definitive review of possible land

exchanges.” Shee would ‘have been compelled to rule that

the objections to the EIS were without merit. The Dis-

trict Court’s ruling on the EIS adequacy issue are com-

pletely at odds with the substantive provisions and goals

of the federal statutes mandating the Shee Atika convey-

ance. For that reason alone, the District Court’s ruling

on this issue cannot be allowed to stand.

CONCLUSION

For the foregoing reasons, Shee Atika submits that this

Court should reverse the District Court’s ruling of inade-

quacy of the EIS, vacate its related order invalidating

the Section 404 permit, and vacate the injunction issued

by the District Court.

Respectfully submitted,

RICHARD ANTHONY BAENEN

PIERRE J. LAFORCE

WILKINSON, BARKER, KNAUER

& QUINN

1735 New York Avenue, N.W.

Washington, D.C. 20006

(202) 783-4141

18 This study was completed after the EIS process.

37a

JACQUELYN R. LUKE, Esq.

MIDDLETON, TIMME & McKay

601 West 5th Ave., Ste. 420

Anchorage, Alaska 99501

(907) 276-3390

Attorneys for Shee Atika, Inc.

38a

EXHIBIT E

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No.

SHEE ATIKA, INC.,

Appellant,

Vv.

CITY OF ANGOON, et al.,

Appellees.

MOTION FOR SUMMARY REVERSAL OF

DISTRICT COURT ORDER AND INJUNCTION

Shee Atika, Inc., hereby moves the Court for summary

reversal of that part of the District Court’s memoran-

dum and order of November 26, 1985, which held the

permit issued by the Corps of Engineers to Shee Atika,

Inc., to construct a log transfer facility in the navigable

waters of the United States void on the ground that the

environmental impact statement prepared by the Corps

was inadequate and providing

(6) THAT as of December 11, 1985, Shee Atika

shall be enjoined from all use of the Cube Cove Log

Transfer Facility until a valid § 404 permit has been

obtained.

Notice of Appeal was filed on December 13, 1985.

‘This case was before the Court in City of Angoon v.

Marsh, 749 F.2d 1413 (Opinion of December 27, 1984),

wherein this Court reversed the District Court and va-

cated an injunction prohibiting Shee Atika from devel-

oping its lands. The Court was composed of Judges

89a

Sneed, Wright and Alarcon. Shee Atika requests that

its motion be referred to that panel of judges because

of their familiarity with the case.

A memorandum in support of this motion is attached.

Respectfully submitted,

By /s/ Richard Anthony Baenen

RICHARD ANTHONY BAENEN

By /s/ Pierre J. LaForce

PIERRE J. LAFORCE

WILKINSON, BARKER, KNAUER

& QUINN

1735 New York Avenue, N.W.

Washington, D.C. 20006

(202) 783-4141

By /s/ Jacquelyn R. Luke

JACQUELYN R. LUKE

MIDDLETON, TIMME & McKay

601 West Fifth Avenue

Suite 420

Anchorage, Alaska 99501

(907) 276-3390

Attorneys for Appellant

December 16, 1985

40a

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No.

SHEE ATIKA, INC.,

Appellant,

CITY OF ANGOON, et al.,

Appellees.

MEMORANDUM OF POINTS AND

AUTHORITIES IN SUPPORT OF MOTION

FOR SUMMARY REVERSAL

RICHARD ANTHONY BAENEN

PIERRE J. LAFORCE

WILKINSON, BARKER, KNAUER

& QUINN

1735 New York Avenue, N.W.

Washington, D.C. 20006

JACQUELYN R. LUKE

MIDDLETON, TIMME & McKay

601 West Fifth Avenue

Suite 420

Anchorage, Alaska 99501

Attorneys for Shee Atika, Inc.

4la

MEMORANDUM IN SUPPORT

OF MOTION FORSUMMARY REVERSAL

REASONS SUPPORTING SUMMARY REVERSAL

1. The District Court’s ruling ignores, and is contrary

to the holding by this Court, vacating an earlier injunc-

tion issued by the District Court, that Congress, by sec-

tion 506(c) of ANILCA, granted Shee Atika Settlement

Act lands on Admiralty Island for economic development.

City of Angoon v. Marsh, 749 F.2d 1413 (1984).

2. The District Court’s ruling is manifestly erroneous,

and reversal is plainly warranted.

8. The effect of the holding and injunction is so dev-

astating to Shee Atika’s precarious financial condition

that unless this Court summarily reverses, Shee Atika

may not survive as a viable entity.

STATEMENT OF THE CASE

This is an interlocutory appeal of an injunction en-

tered by the United States District Court for the District

of Alaska, effective December 11, 1985. (A copy of the

Memorandum/Order entering same is attached as Ap-

pendix A.) Notice of Appeal was timely filed on Deecm-

ber 18, 1985.

In their Consolidated Complaint herein, Sierra Club/

Angoon alleged, inter alia, that the Environmental Im-

pact Statement (“EIS”) prepared by the Corps of Engi-

neers with respect to issuance of a section 404 Clean

Water Act permit to Shee Atika to construct a log trans-

fer facility (“LTF”) on Shee Atika’s Admiralty Island

lands was defective for failure to study as an alternative

the possible exchange by Shee Atika of its lands on Ad-

miralty for off-Island lands.’

1 Sierra Club/Angoon did not challenge the EIS on any substan-

tive grounds, only the alleged failure to study as an alternative the

exchange of Shee Atika’s lands.

42a

Motions and cross-motions for summary judgment were

filed by the parties on all the issues raised in the Com-

plaint. On October 17, 1985, the District Court filed two

memoranda and orders, one on the subsistence and trust

responsibility issues, the other on the section 22(k) issue

(Appendices B and C). On November 27, 1985, the Dis-

trict Court filed its memorandum and order on the re-

maining issues in the complaint, holding against Sierra

Club/Angoon on all issues except that challenging the

adequacy of the EIS and ordered

(7) THAT as of December 11, 1985, Shee Atika

shall be enjoined from all use of the Cube Cove Log

Transfer facility until a valid § 404 permit has been

obtained. [Appendix A, p. 21.]

On the afternoon of December 5, 1985, Shee Atika filed

with the District Court a motion for reconsideration,

which the District Court denied the next morning.

OVERVIEW

This is the second time within 17 months the District

Court has enjoined Shee Atika from productively devel-

oping its Settlement Act lands and the District Court’s

latest injunction issued less than one year from the date

ths Court vacated the * * *

* + * *

STATEMENT OF THE FACTS

A. Preparation of the EIS

Pursuant to stipulation entered into by the federal de-

fendants and Sierra Club/Angoon, it was determined in

March 19838 to prepare an EIS for Shee Atika’s proposed

LTF.* All told, the EIS process consumed some 19

months.’ The final EIS documents, consisting of a basic

2 Shee Atika was not a party to this determination.

3In fact, the decision of the Corps to permit Shee Atika to con-

tinue with the construction of its LTF did not come until almost

two years after the decision to conduct an EIS was made.

43a

statement of some 150 single-spaced pages and appen-

dices of three times that size, reflect that level of effort.

This is the only EIS ever undertaken with respect to

construction/operation of an LTF. The Corps’ environ-

mental review was comprehensive* and addressed every

conceivable facet of the LTF. The only dispute concern-

ing the legal adequacy of the EIS is whether it suffi-

ciently addressed the alternative of an off-Island ex-

change between Shee Atika and the Federal Government.

The Corps did consider the exchange alternative, but

concluded, in accordance with the applicable regulation,°

that in-depth evaluation was not required. The Corps’

consideration of the exchange alternative was described

in the EIS as follows:

A number of commenters have suggested that an ex-

change of Shee Atika lands on * * *

e * * *

Dispositive motions were filed in the District Court

after remand, and all issues were fully submitted by late

June 1985. On October 17, 1985, the District Court filed

two memoranda and orders, denying all of Sierra Club/

Angoon’s issues addressed therein ( Appendices B and

C), and on November 27, 1985, it filed the memorandum

and order that enjoins Shee Atika (Appendix A). In

that memorandum and order the District Court rejected

all of Sierra Club/Angoon’s claims but one—that the

EIS was inadequate because the Corps failed to consider

as an alternative to permitting the long transfer facility

the possible exchange by Shee Atika of its Admiralty

Island lands—and again enjoined Shee Atika.

Shee Atika does not share in the economic benefit of

the Settlement Act. It was, in effect, incorporated on

credit in 1974 and, with minor exception, has existed on

4The Corps commented: “Biological studies in Cube Cove have

been more complete than in any other LTF in Southeast Alaska.”

EIS Appendices at N-148.

5 33 C.F.R. Part 230, App. B, f 11.b.(5) (b) (1985).

44a

credit. Its efforts to harvest timber in 1984 and 1985

were thwarted by the District Court’s first injunction

and the pendency of the litigation, and its renewed efforts

thwarted by the most recent injunction. Shee Atika must

generate income now from the development of its lands

if it is to survive. In October 1985, it offered a stumpage

sale, with the bids to be opened on February 28, 1986.

The terms of the sale required the successful bidder to

pay 50% of the sales price at closing. It was anticipated

the sale would generate a minimum of $1.5 million when

the contract was awarded. The sale must now be can-

celled, because no * * *

* * + e

CONCLUSION

For the foregoing reasons, Shee Atika submits that

the Court should summarily reverse the District Court’s

ruling of inadequacy of the EIS, and vacate the injunc-

tion issued by the District Court forthwith.

By ‘/s/ Richard Anthony Baenen

RICHARD ANTHONY BAENEN

By /s/ Pierre J. LaForce

PIERRE J. LAFORCE

WILKINSON, BARKER, KNAUER

& QUINN

1735 New York Avenue, N.W.

Washington, D.C. 20006

(202) 783-4141

By /s/ Jacquelyn R. Luke

JACQUELYN R. LUKE

MIDDLETON, TIMME & McKay

601 West Fifth Avenue

Suite 420

Anchorage, Alaska 99501

(907) 276-3390

Attorneys for Shee Atika, Inc.

45a

PROOF OF SERVICE

I, MATTHEW A. SURPRISE, certify and declare

under penalty of perjury that I: am a citizen of the

United States; am over the age of 18 years; am employed

by Furth, Fahrner, Bluemle & Mason, at the address in-

dicated, whose members are members of the State Bar

of California and at least one of whose members is a

member of the Bar of each Federal District Court within

California; am not a party to or interested in the cause

entitled upon the document to which this Proof of Service

is affixed; and that I served a true and correct copy of

the following document(s) in the manner indicated

below:

SIERRA CLUB/ANGOON’S PETITION

FOR REHEARING

(XX) by today depositing, at San Francisco, California,

the said document(s) in the United States mail in a

sealed envelope, with first-class postage thereon fully pre-

paid, addressed to: (and/or)

() by today ‘personally delivering the said docu-

ment(s) to the person(s) indicated below in a manner

provided by law, by leaving the said document(s) at the

office(s) or usual place(s) of business, during usual busi-

ness hours, of the said person(s) with a cleark or other

person who was apparently in charge thereof and at least

18 years of age, whom I informed of the contents.

[SEE ATTACHMENT A]

Dated: November 19, 1986

/s/ Mathew A. Sawyer

46a

ATTACHMENT A

Stephen Sorenson David Shilton

Jonathan Tillinghast Robert Klarquist

Birch, Horton, Bittner, Department of Justice

Pestinger & Anderson Appellate Section

One Sealaska Plaza, Suite 301

Juneau, Alaska 99801

Richard Baenen

Pierre LaForce

Wilkinson, Barker,

Knauer & Quinn

1735 New York Ave., NW

Washington, D.C. 20006

Jacquelyn Luke

Middleton & Timme

601 W. 5th Avenue, Suite 420

Anchorage, Alaska 99501

Land & Natural Resources Division

9th & Pennsylvania Avenue, NW

Washington, D.C. 20530

Durwood Zaelke

Sierra Club Legal Defense Fund

1516 P Street, NW, Suite 300

Washington, D.C. 20005

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.