Stipulation — United States v. Alaska

. FILED

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No. 118, Original <

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Iu the Supreme Court of the United States

OCTOBER TERM, 1991

UNITED STATES OF AMERICA, PLAINTIFF

Uv.

STATE OF ALASKA

ON BILL OF COMPLAINT

JOINT STIPULATION OF FACTS

CHARLES E. CoLe KENNETH W. STARR

Attorney General Solicitor General

State of Alaska Department of Justice

JOHN G. GISSBERG Washington, D.C. 20530

Assistant Attorney General (#02) 514-2217

P.O. Box K Counsel for the United States

Juneau, Alaska 99811

(907 ) 465-3600

Counsel for the State of Alaska

——_—_—_———

Stipulation

TABLE OF CONTENTS

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Appendix

Appendix

Appendix

Appendix

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Appendix

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Appendix

Appendix

(1)

In the Supreme Court of the United States

OCTOBER TERM, 1991

No. 118, Original

UNITED STATES OF AMERICA, PLAINTIFF

v.

STATE OF ALASKA

ON BILL OF COMPLAINT

JOINT STIPULATION OF FACTS

On January 7, 1991, the United States requested

leave of this Court to commence an original action to

resolve a dispute between the United States and the

State of Alaska concerning ownership of certain sub-

merged lands beneath Norton Sound, near Nome,

Alaska. See Motion of the United States for Leave

to File Complaint, Complaint, and Brief in Support of

Motion, No. 118, Orig. (O.T. 1990). Alaska did not

object to the commencement of such an action. See

Memorandum of the State of Alaska, No. 118, Orig.

(O.T. 1990). On April 1, 1991, the Court granted

the United States’ motion for leave to file a bill of

complaint, and on May 31, 1991, Alaska filed its

answer. On June 28, 1991, the Court invited the

United States and Alaska to file a stipulation of facts

relevant to a decision in this action. The United

States and the State of Alaska jointly stipulate as

follows:

(1)

2

1. On August 25, 1982, the City of Nome, Alaska,

filed an application with the Department of the Army,

Alaska District Corps of Engineers (the Corps),

for a federal permit, under Section 10 of the Rivers

and Harbors Appropriation Act of 1899, 33 U.S.C.

403, and Section 404 of the Clean Water Act, 33

U.S.C. 1344, to construct port facilities, including

a causeway with road, a breakwater, and an offshore

terminal area facility extending into Norton Sound.

See App., infra, la-10a.

2. On October 20, 1982, the Corps issued a Public

Notice of Application for Permit and invited inter-

ested persons to provide comments on whether the

permit should be granted. See App., infra, 1la-l6a.

3. On November 22, 1982, the Alaska OCS Region

of the Minerals Management Service, United States

Department of the Interior, filed an objection to the

issuance of a Department of the Army permit on the

ground that the City of Nome’s construction of the

port facilities would constitute an artificial accre-

tion to the legal coast line. It requested that before

issuing any permit, the Corps require Alaska to waive

any future claims under the Submerged Lands Act,

43 U.S.C. 1301 et seg., based on the construction of

the causeway. See App., infra, 17a-19a.

4. On April 4, 1983, the Corps requested comments

from the Office of the Solicitor, Department of the

Interior, pursuant to 33 C.F.R. 320.4(f), concerning

the effect of the Nome project on the coast line. See

App., infra, 20a-21a.

5. On May 16, 1983, the Solicitor responded that

construction of the Nome facility would “move Alas-

ka’s coastline or baseline seaward of its present loca-

tion” and that “[f]ederal mineral leasing offshore

Alaska would be affected because the state-federal

boundary, as well as international boundaries, are

3

measured from the coastline or baseline.” See App.,

infra, 22a. The Solicitor recommended that “approval

of the permit application be conditioned upon Alaska

executing an agreement or a quit claim deed pre-

serving the coastline and the state-federal boundary.”

Ibid.

6. On July 1, 1983, the Corps transmitted the

Solicitor’s letter to the Alaska Department of Nat-

ural Resources and stated that “in accordance with

the attached letter from thé Office of the Solicitor

* * * a [Department of the Army] permit will not

be issued until * * * a waiver or quit claim deed

has been issued preserving the coastline and the

State-Federal boundary.” See App., infra, 24a.

7. On May 9, 1984, the Alaska Department of

Natural Resources submitted a conditional disclaimer

of rights to additional submerged lands that could

be claimed by Alaska as a result of the construction

of the Nome port facility. See App., infra, 26a-31a.

The disclaimer provides in pertinent part:

1. Subject to paragraph 4 below, the State of

Alaska agrees that the coast line and the bound-

aries of the State of Alaska are not to be

deemed to be in any way affected by the con-

struction, maintenance, or operations of the

Nome port facility. This document should be

construed as a binding disclaimer by the State

of Alaska to the effect that tue state does not,

and will not, treat the Nome port development as

extending its coast line for:purposes of the Sub-

merged Lands Act, again subject to paragraph

4 below.

2. This disclaimer is executed solely for the

purpose of complying with the conditions recom-

mended by the Solicitor of the Department of the

Interior and the Attorney General and main-

4

tains the status quo of the baseline and the state-

federal boundary. It does not affect property

or claims to which Alaska is now entitled. It

is not an admission by the State of Alaska or

by the United States as to the present location

of the shoreline, coast line, or the boundaries of

the State of Alaska, and is without prejudice

to any contention that any party may now or

hereafter make regarding such present location.

3. This disclaimer is entered without prejudice

to Alaska’s right to file an appropriate action

leading to a determination whether the Corps

of Engineers has the legal authority to require

such a disclaimer before issuing a permit for a

project which might affect the coast line.

4. This disclaimer becomes ineffective and with-

out force and effect upon a final determination

by a court of competent jurisdiction in any

appropriate action that the Corps of Engineers

does not have the legal authority to require such

a disclaimer before issuing a permit for a proj-

ect which might affect the coast line.

Id. at 30a-31a.

8. By Ictter dated June 15, 1984, the Depart-

ment of Justice informed the Corps that the dis-

claimer satisfied any objections that the Department

of Justice and the Department of the Interior might

have to the issuance of a Department of the Army

permit. See App., infra, 32a.

9. On July 9, 1984, the Corps issued a statement

of findings supporting the issuance of a Department

of the Army permit for the Nome facility. See App.,

infra, 33a-37a. On the same date, the Corps sent a

non-validated permit to the City of Nome for sig-

nature. See id. at 38a. The City Manager of Nome

signed and returned the permit, and the Corps issued

5

the validated permit on July 25, 1984. See id. at

39a-49a.

10. The Department of the Army permit has been

modified in certain respects since its issuance to re-

flect changes in the Nome project. See App., infra,

50a-51la. As originally permitted, the project was to

include a causeway, approximately 85 feet wide, ex-

tending approximately 3575 feet seaward from the

coast line into Norton Sound. As constructed, the

causeway extends approximately 2700 feet seaward

from the coast line into Norton Sound. See id. at 62a

(diagram).

11. On March 11, 1988, the Minerals Manage-

ment Service of the United States Department of the

Interior published a “Request for Comments and

Nominations for a Lease Sale in Norton Sound and

Notice of Intent to Prepare an Environmental Im-

pact Statement,” which solicited public comment on

the Minerals Management Service’s proposed lease

sale for hard-rock minerals, including gold, in the

Norton Sound near Nome, Alaska. 53 Fed. Reg.

8134.

12. On April 11, 1988, the State of Alaska sub-

mitted comments stating, among other things, that

the proposed Norton Sound Lease Sale involved sub-

merged lands subject to its Nome project disclaimer

(see para. 7, supra) and that the State intended to

file a legal action, in accordance with the disclaimer,

challenging the Corps’ authority to require a waiver

of rights to submerged lands. See App., infra, 52a-

54a. Alaska also requested that the Minerals Man-

agement Service delete the disputed acreage from

the proposed lease sale. See id. at 54a. The Minerals

Management Service, meanwhile, prepared environ-

mental analyses and circulated a proposed leasing

6

notice. See 53 Fed. Reg. 48,045 (1988) ; 55 Fed? Reg.

24,330 (1990).

13. On May 22, 1990, the State of Alaska pro-

vided notice, pursuant to 28 U.S.C. 2409a(m), that

it intended to file a lawsuit to quiet title to-the sub-

merged lands in Norton Sound that are more than

three miles from the natural shoreline but within three

miles of the low water line of the constructed, solid-fill

Nome causeway. See App., infra, 55a-59a. In an

attachment to the letter, Alaska described the ap-

proximately 730-acre area associated with the 2700

foot causeway as the “Port of Nome” tract. See id.

at 60a-61a. Alaska suggested that the United States

either delete the disputed acreage from the proposed

lease sale or enter into an agreement, pursuant to

Section 7 of the Outer Continental Shelf Lands

Act (OCSLA), 43 U.S.C. 1336, and Alaska Stat.

§ 38.05.027 (1990), that would direct the revenues

from the disputed acreage into an escrow account

pending final resolution of the ownership issue. See

id. at 58a.

14. Thereafter, on January 7, 1991, the United

States requested leave of this Court to commence this

action. The Court granted the United States’ motion

for leave to file a bill of complaint on April 1, 1991.

15. On June 21, 1991, the Minerals Management

Service published a final leasing notice soliciting bids

for the Norton Sound Lease Sale. 56 Fed. Reg.

28,656 (1991). On July 23, 1991, the United States

and the State of Alaska entered into an agreement,

pursuant to Section 7 ofthe Outer Continental Shelf

Lands Act, 43 U.S.C. 1336, and Alaska Stat.

§ 38.05.137 (1990), directing the revenues from the

disputed acreage into an escrow account for payment

to the United States or to Alaska, depending on the

outcome of this action. The bidding period closed

7

and no bids were received. The United States and

Alaska agree, however, that a live controversy re-

mains in light of their continuing disagreement as to

the location of the federal-state boundary and the

prospect of future lease sales in the area.

16. In at least nine other ipstances, prior to issu-

ing a permit for construction of artificial additions

to the coast line, the Corps has sought and obtained

from a State a disclaimer or other agreement waiv-

ing the State’s claim to additional submerged lands

based on the additions to the coast line. In at least

two other instances, the Corps has issued a permit for

construction of similar artificial additions to the coast

line without obtaining such a disclaimer. A compila-

tion of such permits and disclaimers will be lodged

with the Clerk of the Court.

Respectfully submitted.

CHARLES E. CoLe KENNETH W. STARR

Attorney Genera! Solicitor General

State of Alaska Counsel for the United States

JOHN G. GISSBERG

Assistant Attorney General

Counsel for the State & Alaska

SEPTEMBER 1991

APPENDIX A

APPLICATION FOR A DEPARTMENT OF THE

ARMY PERMIT

For use of this form, see EP 1145-2-1

The Department of the Army permit program is au-

thorized by Section 10 of the River and Harbor Act

of 1899, Section 404 of P.L. 92-500 and Section 103

of P.L. 92-532. These laws require permits authoriz-

ing structures and work in or affecting navigable

waters of the United States, the discharge of dredged

or fill material into waters of the United States, and

the transportation of dredged material for the pur-

pose of dumping it into ocean waters. Information

provided in ENG Form 4345 will be used in evaluat-

ing the application for a permit. Information in the

application i is made a matter of public record through

issuance of a public notice. Disclosure of the infor-

mation requested is voluntary ; however, the data re-

quested are necessary in order to commun:cate with

the applicant and to evaluate the permit application.

If necessary information is not provided, the permit

application cannot be processed nor can a permit be

issued.

One set of original drawings or good reproducible

copies which show the location and character of the

proposed activity must be attached to this applica-

tion (see sample drawings and check list) and be

submitted to the District Engineer having jurisdic-

tion over the location of the proposed activity. An

application that is not completed in full will be re-

turned.

‘la)

2a

. Application number (To be assigned by Corps)

JDM Norton Sound 36

071-0 Y D-2-820546

. Date

25 8 82

Day Mo. Yr.

. For Corps use only.

Received

Aug. 25, 1982

7 Sept. ’82

. Name and address of applicant.

City of Nome

P.O. Box 281

Nome, Alaska 99762

Attn: Ivan Widom, City Manager

Telephone no. during business hours

A/C (907) 443-5242

A/C()

. Name, address and title of authorized agent.

Telephone no. during business hours

A/C( )

A/C ()

. Describe in detail the proposed activity, its pur-

pose and intended use (private, public, commer-

cial or other) including description of the type

of structures, if any to be erected on fills, or pile

or float-supported platforms, the type, composi-

tion and quantity of materials to be discharged

or dumped and means of conveyance, and the

source of discharge or fill material. If additional

space is needed, use Block 14.

38a

This application supercedes 071-OYD-2-800311

and addresses comments regarding that applica-

tion.

SUMMARY

The proposed port facilities include phase

I construction of 2 3575’ causeway to reach

the 30 foot water depth, a breakwater and

250’ x 800’, 4.6 acre offshore terminal area

for short term cargo storage with an 800’

dock structure for barge berths, and a 10

acre upland long term cargo storage area

with a maintenance shop and container

freight station for cargo handling.

700,000 cubic yards of core materials for

the causeway and offshore terminal will be

dredge tailings trucked from upland pits

within 3 miles of Nome, placed by end

dumping. 300,000 cubic yards of filter ma-

terial and 254,000 cubic yards of armor

rock will be quarried at Cape Nome, ap-

proximately 15 miles from the project. This

material will probably be trucked, using a

new by-pass road to be constructed by

Alaska DOT/PF* (or alternatively over the

sea ice in winter), although the armor rock

might be barged if a loading facility at Cape

Nome is completed. The filter material will

be placed by end dumping. The armor rock

will be placed by crane. The dock structure

consists of 30’ diameter concrete caissions

31’ on center with grouted connections, sup-

porting a concrete dock wall. Two forklift

ramps are provided for dry cargo transfer.

Two fuel discharge manifolds, each having

* North Sound 35 +071-OYD-4-820435.

4a

two 8” diameter and four 6” diameter

pipes, are provided for transfer of diesel

and gasoline fuels to an upland tank farm.

An 8” water line with a 3” recirculation

line from the city water supply provides

potable water and fire protection. Sewage

will be transferred from vessel holding tanks

to the city system by pump truck. Portable

toilets will be provided at the offshore ter-

minal.

A breach in the causeway with a 98’

long prestressed concrete bridge is provided

at the 8’ water depth. The bridged opening

has been requested by the Alaska Depart-

ment of ‘ish and Game to permit migration

of juvenile fish along the shoreline. A sec-

ondary benefit of this breach is the shoreline

accessibility provided for small boats with-

out the hazard of rounding the head in

deeper water.

The opening is_located at the most accept-

able depth to meet Alaska Department of

Fish and Game requirements and also mini-

mize maintenance dredging from littoral

beach accumulation.

Phase II construction consists of a 100’

x 400’ mashalling yard with two 400’ x 60’

piers to provide 8 berths for oil rig service

vessels. 220,000 cubic yards of dredge tail-

ings from upland sites would be placed by

end dumping. The pier structure consists of

57’ diameter steel sheet pipe cells 63’ on

center, supporting concrete dock walls.

Cathodic protection and epoxy coating cor-

rosion protection are provided for the steel

5a

piling. Water, fuel, and electrical services

will be provided.

NEED FOR PROJECT AND

ALTERNATIVES CONSIDERED

The City of Nome, Alaska, serves as a

trade, service, and transportation center for

much of northwest Alaska. According to

the 1980 census, approximately 11,200 peo-

ple live within the Nome service region,

with a population of over 3200 in the im-

mediate Nome area.

Due to its remote location (over 500 air

miles from Anchorage or Fairbanks), the

city is heavily dependent on waterborne

shipments of consumable and durable goods,

construction materials and equipment, and

gasoline, heating oil, and other petroleum

products. Cargoes destined for Nome are

currently barged in during the five month

(June to October) ice-free season.

The existing port facility is located at the

mouth of the Snake River within the Nome

city limits. Built and maintained by the

Corps of Engineers in the estuary of the

Snake River, the harbor is characterized by

a seventy-five foot wide entrance channel

and a two-hundred-fifty foot by six-hundred

foot turning basin. The entrance channel

and turning basin require annual dredging

by the Corps to maintain an operating

depth of approximately eight feet. The

north revetment of the turning basin cur-

6a

rently functions as the only dock in Nome

Harbor.

Due to the shallow draft and limited width

of the entrance channel and turning basin,

the existing port can only accommodate rela-

tively small barges and tugs. Ocean-going

vessels currently anchor in forty to fifty

feet of water one mile from shore, and cargo

is lightered to the protected harbor.

The lack of adequate port facilities rep-

resents a major deterrent to development of

the region. The extra handling required to

lighter cargoes adds significantly to the

costs of transporting cargoes to Nome. The

proposed project would greatly reduce these

costs, as well as play a major role in the

economic development of Northwest Alaska.

The location and type of structure proposed

in this application have been analyzed dur-

ing separate prefeasibility and feasibility

studies. Alternatives considered and even-

tually rejected included: (1) expansion of

existing harbor basin; (2) a causeway sit-

uated at Cape Nome; (3) a causeway fur-

ther west of the city; (4) a shorter cause-

way with dredged channel.

CONSTRUCTION ON PERMAFROST

Onshore storage areas situated on perma-

frost will be constructed over a pad of nine

foot fill consisting of dredge tailings, de-

signed to provide a thermal blanket. A 24-

foot wide roadway on a 32-28-foot wide em-

7a

bankment will connect the causeway to the

onshore facilities and existing city roads.

Where necessary due to permafrost condi-

tions, road construction will include excava-

tion and backfilling with dredge tailings as

described above.

OIL SPILL PROTECTION

Fuel discharge manifolds at the barge

dock will have sumps sized to meet Coast

Guard and ADEC regulations. Pipelines

(two 8” and four 6”) will be buried within

the causeway and road embankment. Design

flow rate for an 8” line is 2000 gpm and for

a 6” line is 1000 gpm. At the bridge (high

point in the pipeline), a 6000 gallon contain-

ment vessel will be suspended between gird-

ers under the pipelines.

A sensor triggering an adudible alarm at

the pumps would be activated by a float in

the event of a break during pumping. Prior

to operation of the facility, an oil spill con-

tingency plan will be filed with ADEC.

[Diagrams omitted]

7. Names, addresses and telephone numbers of ad-

joining property owners, lessees, etc., whose prop-

erty also adjoins the waterway.

Alaska Gold Co., P.O. Box 640, Nome, AK 99762

Att’n: Dennis Campion Tel. (907) 443-5272

Bureau of Indian Affairs, P.O. Box 1108, Nome,

AK 99762 Att’n: Paul Sterling Tel. (907) 443-

2284

8a

8. Location where property activity exists or will

10.

11.

12.

occur.

Address:

End of West Limit Street

Street, road or other descriptive location

None

In or near city or town

Alaska 99762

County State Zip Code

Tax Assessors Description: (If known)

Map. No. Subdiv. No. Lot No.

26-27 118 34W

Sec. Twp. Rge.

Name of waterway at location of the activity.

Norton Sound

Date activity is proposed to commence. June

1988 '

Date activity is expected to be completed. Octo-

ber 1986

Is any portion of the activity for which authori-

zation is sought now complete? (| YES

NO

If answer is “Yes” give reasons in the remark

section. Month and year the activity was com-

pleted . Indicate the existing work

on the drawings.

List all approvals or certifications required by

other federal, interstate, state or local agencies

for any structures, construction, discharges, de-

13.

14.

15.

9a

posits or other activities described in this ap-

plication.

Issuing Agency Type Approval

Identification No. Date of Application

Date of Approval

Has any agency denied approval for the activity

described herein or for any activity directly re-

lated to the activity described herein?

0 Yes No (If “Yes” explain in re-

marks)

Remarks (Checklist, Appendix H for additional

information required for certain activities).

Application is hereby made for a permit or per-

mits to authorize the activities described herein.

I certify that I am familiar with the information

contained in this application, and that to the best

of my knowledge and belief such information is

true, complete, and accurate. I further certify

that I possess the authority to undertake the

proposed activities.

/8/ Ivan L. Widom

Signature of Applicant or

Authorized Agent

The application must be signed by the appli-

cant; however, it may be signed by a duly au-

thorized agent (named in Item 5) if this form

is accompanied by a statement by the applicant

designating the agent and agreeing to furnish

10a

upon request, supplemental information in sup-

port of the application.

18 U.S.C. Section 1001 provides that: Who-

ever, in any manner [sic] within the jurisdiction

of any department or agency of The United

States knowingly and wiHfully_falsifies, conceals,

or covers up any trick, scheme, or device a mate-

rial fact or makes any false, fictitious or fraudu-

lent statements or representations or makes or

uses any false writing or document knowing the

same to contain any false fictitious or fraudulent

statement or entry, shall be fined not more than

$10,000 or imprisoned not more than five years,

or both. Do not send a permit processing fee

with this application. The appropriate fee will

be assessed when a permit is issued.

lla

APPENDIX

PUBLIC NOTICE OF APPLICATION

FOR PERMIT

[Logo]

US Army Corps

of Engineers

Alaska District

Alaska District

Regulatory Functions Branch

P.O. Box 7002

Anchorage, Alaska 99510

Public Notice Date: 20 October 1982

Expiration Date: 22 November 1982

Reference Number: 071-OY D-2-820546

Waterway Number: Norton Sound 36

Interested parties are hereby notified that an appli-

cation hes been received for a Department of the

Army permit for certain work in waters of the United

States, as described below and shown on the attached

plan.

APPLICANT: City of Nome, P.O. Box 281, Nome,

Alaska 99762

LOCATION: Sections 26, 27, T. 11 S., R. 34 W.,

K.R.M., Nome, Alaska

WORK: To place approximately 1,477,000 cubic

yards of fill to construct an offshore storage area and

roadway system, an offshore storage area-barge

berthing facility, and an earth-filled pier connecting

the onshore and offshore facilities.

12a

Approximate dimensions for the proposed structures

are as follows:

a. A 3,575’ long x 85’ wide (crown) x 16’ above

sealevel (ranging from 16’ to approximately 50’ deep)

pier, which would be protected with approximately

10-15’ of armor rock; side slopes would be 1.5:1;

b. a 250’ wide x 800’ long x 40’ deep general cargo

storage that would be constructed at the seaward

terminus of the pier; a 15’ layer of armor rock would

protect the 1.5:1 side slopes, the dock structure would

consist of 30’ diameter concrete caisons, 31’ on center

with grated connections;

ce. a 520’ long x 100’ wide marshalling yard would

connect the proposed barge docking facility and a fu-

ture phase II oil rig service marshalling area adja-

cent to “b” above;

d. a 1200’ long x. 450’ x 9’ deep (10 acre) onshore

storage pad west of the pier road; a 26’ crown width

road, with 4:) side slopes would surround the stor-

age pads; and

e. a 2400’ long x 52’ wide x 9’ to 16’ (variable)

deep road system would connect the offshore storage

area to the pier; the following aompenente comprise

this road system ;

1. The western spur would be approximately 260’

long x 16’ wide x 8’-11’ (variable) deep, with 4:1

side slopes;

2. the northeastern spur would be approximately

530’ long x 40’ wide x 6’ deep with 2:1 side slopes;

this spur would run from the NE Terminus to a cen-

tral tangent point;

3. a 140’ long x 16’ wide x 6’ deep spur, with 2:1

side slopes, running SE from the NE spur (in “2”

above) to the beach;

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13a

4. a 400’ long x 52’ wide x 4’-10’ (variable) deep

road, with 4:1 side slopes, from the shoreline to the

SE corner of the proposed onsiore storage pac; and

5. a 800’ long x 52’ wide x 4’-10’ (variable) deep

read with 4:1 side slopes, running north of the junc-

ture point (in “4” above) along the east side of the

storage pad approximately 370’ past the NE corner

of that pad.

Breakdown of the fill types and quantities are as

follows:

a. Dredge tailings for the pier and terminal facili-

ties core—700,000 cubic yards;

b. 300,000 cy of quarry rock for the pier and ter-

minal facilities filter;

ce. 254,000 cy quarry rock for the pier and ter-

minal facilities armor slope protection ;

d. 63,000 cy of dredge tailings for the road system

between the onshore storage pad and the pier;

e. 93,000 cy non-frost susceptible dredge tailings

for the onshore storage pad;

f. 24,000 cy of dredge tailings for the road system

between the onshore storage pad and the pier; and

g. 10,000 cy of non-frost susceptible dredge tail-

ings for the onshore road system.

Possible future construction would consist of an ex-

pansion of the onshore storage area with a pad ap-

proximately 500’x400’ to the west of the original

proposed pad and a pad approximately 1800’x40’x

1800’x800’ to the north of the original proposed pad.

PURPOSE: To provide needed waterborne barge

and marine vessel docking and port facilities for

Nome, whose remoteness requires most goods to be

received via air freight or barge. The existing Corps

l4a

of Engineers’ dock in Nome can only handle shallow

draft vessels. To accommodate these vessels annual

dredging of the dock area is required. Ocean going

vessels must anchor a mile offshore to find adequate

water depth.

ADDITIONAL INFORMATION: A breach in the

causeway approximately 400’ offshore, and in 8’ of

water, would be provided to aid salmon migration.

AUTHORITY: This permit will be issued or denied

under the following authorities:

(X) Perform work in or affecting navigable waters

of the United States Section 10, River and Harbor

Act 1899 (33 U.S.C. 403).

(X) Discharge dredged or fill material into waters

of the United States Section 404, Clean Water Act

(33 U.S.C. 1344).

WATER QUALITY CERTIFICATION: A permit

for the described work will not be issued until a cer-

tification or waiver of certification as required under

Section 401 of the Clean Water Act (Public Law 95-

217), has been received from the Alaska Department

of Environmental Conservation.

COASTAL ZONE MANAGEMENT ACT CERTI-

FICATION: Section_307(c) (3) of the Coastal Zone

Management Act of 1972, as amended by 16 U.S.C.

1456(c) (3), requires the applicant to certify that the

described activity affecting land or water uses in the

Coastal Zone complies with the Alaska Coastal Man-

agement Program. A permit will not be issued until

the Division of Policy Development and Planning has

concurred with the applicant’s certification.

l5a

EIS DETERMINATION: A preliminary deter-

mination has been made that an environmental im-

pact statement is not currently required for the de-

scribed work.

PUBLIC HEARING: Any person may request, in

writing, within the comment period specified in this

notice, that a public hearing be held to consider this

application. Requests for public hearings shall state,

with particularity, the reasons for holding a public

hearing.

CULTURAL RESOURCES: The property described

is not a registered or eligible property in the latest

published version of the National Register of His-

toric Places.

ENDANGERED SPECIES: Preliminarily, this de-

scribed activity will not affect endangered species, or

their critical habitat designated as endangered or

threatened, under the Endangered Species Act of

1973 (87 Stat. 844). Formal consultation under Sec-

tion 7 of the Act is not required for the described

activity.

FLOOD PLAIN MANAGEMENT: Evaluation of

the described activity will include conformance with

appropriate State o[r] local flood plain standards;

consideration of alternative sites and methods of ac-

complishment; and weighing of the positive, concen-

trated and dispersed, and short and long-term im-

pacts on the flood plain.

EVALUATION: The decision whether to issue a

permit will be based on an evaluation of the probable

impact including cumulative impacts of the proposed

activity on the public interest. That decision will re-

flect the national concern for both protection and

l6a

utilization ef important resources. The benefit which

reasonably may be expected to accrue from the pro-

posals must be balanced against its reasonably fore-

seeable detriments. All factors which may be relevant

to the proposal will be considered including the cumu-

lative effects thereof; among these are conservation,

economics, aesthetics, general environmental concerns,

wetlands, cultural values, fish and wildlife values,

flood hazards, flood plain values, land use, navigation,

shoreline erosion and accretion, recreation, water

supply and conservation, water quality, energy needs,

safety production and, in general, the needs and wel-

fare of the people.

Comments on the described work, with the reference

number, should reach this office no later than the ex-

piration date of this Public Notice to become part of

the record and be considered in the decision. If fur-

ther information is desired concerning this notice,

contact Jerome Madden at (907) 552-4942 or

279-4123.

FOR THE DISTRICT ENGINEER:

/s/ Jack L. Ferrise

JACK FERRISE

b __. Acting Chief, Interior Permit

Processing Section

Regulatory Functions Branch

3 Incl

1. Plan

2. ACMP Notice

3.

401 Notice

[ Enclosures omitted ]

17a

APPENDIX C

UNITED STATES

DEPARTMENT OF THE INTERIOR

MINERALS MANAGEMENT SERVICE

Alaska OCS Region

[SEAL]

Offshore Leasing Offshore Operations & Evaluations

P.O. Box 1159 800 A Street, Suite 201

Anchorage, AK 99510 Anchorage, AK 99501

Ph: 907-276-2955 Ph: 907-271-4304

Colonel Lee R. Nunn November 22, 1982

District Engineer

Corps of Engineers

Department of the Army

Alaska District

P.O. Box 7002

Anchorage, AK. 99510

Re: Public Notice 071-OY D-2-820546

Dead Colonel Nunn:

The Minerals Management Service’s (MMS) objec-

tion to issuance of a permit for the Nome dock ex-

pansion still remains. The principle followed by the

federal Government in matters such as this was enun-

ciated by the United States Supreme Court in United

States v. California, S. Ct. No. 5, Original. The Court

adopted the report of the Special Master regarding

the effect of artificial accretions on the legal “‘coast-

line,” stating

The Special Master ruled that lands so enclosed

or filled belonged to California because such arti-

ficial changes were clearly recognized by inter-

national law to change the coastline. Further-

18a -

more, the Special Master recognized that the

United States, through its control over naviga-

ble waters, had power to protect its interests

from encroachment by unwanted artificial struc-

tures, and the effect of any future changes could

thus be the subject of agreement between the

parties.

* * * +

Arguments based on the inequity to the United

States of allowing California to effect changes in

the goundary between Federal and State sub-

merged lands by making future artificial changes

in the coastline are met, as the Special Master

pointed out, by the ability of the United States

to protect itself through its power over navigable

waters.

381 U.S. 139, 177 (1965).

The Interior Department consistently follows a policy

of protecting the rights of the United States in all

cases of artificial coastline accretion that come to its

attention. In keeping with the Supreme Court opin-

ion, we do this primarly through the Federal Gov-

ernment’s control over navigable waters, which is ex-

ercised through the Corps of Engineers permitting

process.

In this case, the MMS is simply following the ap-

parent suggestion of the Supreme Court in seeking an

agreement from the State regarding the effect of a

future change in the coastline. We are attempting to

do nothing more than preserve the status quo by pro-

tecting property rights to which the United States is

now clearly entitled. On the other hand, by agreeing

not to assert a future claim based upon the dock ex-

tension, as other States have done in similar situa-

tions, the State of Alaska would give up absolutely

19a

nothing in the way of property or claims to which it

is now entitled. It would simply give up a possible ©

future claim to a windfall gain at the expense of the

Federal Government.

I should also point out that any territorial claim

which Alaska might make based upon the Nome cause-

way would not be dependent upon the U.S. v. Alaska

boundary litigation now pending before the Supreme

Court. The United States has conceded that an arti-

ficial extension of the coastline, if constructed in full

compliance with applicable Federal regulations, can

extend a State’s submerged lands. By requesting that

you require a waiver before permits are issued, we

are trying to avoid a situation like the ARCO pier

extension that resulted in litigation.

If more information is needed please free to call. You

may also wish to contact the Solicitor’s Office on

343-4325.

Sincerely yours,

/s/ Esther C. Wunnicke

ESTHER C. WUNNICKE

Acting Regional Manager

20a

APPENDIX D

DEPARTMENT OF THE ARMY

ALASKA DISTRICT CORPS OF ENGINEERS

ANCHORAGE, ALASKA 99506

April 4, 1983

Regulatory Functions Branch

Interior Permit Processing

Mr. William H. Coldiron

Office of Solicitor

Department of Interior

18th and “C” N.W.

Washington, DC 20240

Dear Mr. Coldiron:

This refers to the enclosed permit application pub-

lic notice involving structures affecting coastal water

that may modify the coast line or base line from

which the territorial sea is measured. This is being

sent to you for comment as prescribed in 33 CFR

Section 320.4(f).

The enclosed public notice number 071-OYD-

2-820646, Norton Sound 36, causeway/barge berthing

facilities, Nome, Alaska, should provide adequate de-

scriptions of the proposed activity.

The Alaska District Corps of Engineers solicits

your comments regarding this proposal. A copy of

the public notice and plans are enclosed.

Sincerely,

/s/ Colonel Neil E. Saling

NEIL E. SALING

Colonel, Corps of Engineers

District Engineer

—

2la

Enclosure

Copies Furnished :

Mr. John Allen

Regional Solicitor,

Department of Interior

840 C Street, Suite 100

Anchorage, Alaska 99506

[Enclosure Omitted }

22a

APPENDIX E

UNITED STATES

DEPARTMENT OF THE INTERIOR

OFFICE OF THE SOLICITOR

WASHINGTON DC 20240

[SEAL ]

May 16, 1983

Colonel Neil E. Saling

District Engineer

Corps of Engineers

Department of the Army

Alaska District, Pouch 898

Anchorage, Alaska 99506

Dear Colonel Saling:

This responds to your request for comments concern-

ing Nome’s application for a permit “to place approx-

imately 1,477,000 cubic yards of fill to construct an

offshore storage area and readway system,.. . barge

berthing facility, and an earth filled pier.” (Refer-

ence number 071-OY D-2-820546. )

The proposed construction would move Alaska’s coast-

line or baseline seaward of its present location. Fed-

eral mineral leasing offshore Alaska would be affected

because the state-federal boundary, as well as inter-

national boundaries, are measured from the coastline

or baseline.

To prevent modification of the outer Continental Shelf

rights of the United States, we recommend that ap-

proval of the permit application be conditioned upon

Alaska executing an agreement or a quit claim deed

preserving the coastline and the state-federal bound-

ary. Such agreements have been encouraged by the

23a

Supreme Court, and have been entered into by other

states as well as Alaska. See, e.g., United States v.

California, 381 U.S. 139, 176 (1965). The agree-

ment or quit claim deed would simply maintain the

status quo; it would not affect property or claims to

which Alaska is now entitled. Should Alaska exe-

cute the agreement or quit claim deed, so that the

Nome project would not be construed as moving the

baseline or state-federal boundary, we would have no

objection to approval of the Nome project.

Please advise us of your action on this permit ap-

plication.

Sincerely,

/s/ Jean Kingry

For Solicitor

24a

APPENDIX F

DEPARTMENT OF THE ARMY

ALASKA DISTRICT CORPS OF ENGINEERS

ANCHORAGE, ALASKA, 99506

July 1, 1983

Regulatory Functions Branch

Interior Permit Processing Section

Ms. Sharon Barton

Alaska Department of Natural

Resources

Pouch M

Juneau, Alaska 99811

Dear Ms. Barton:

In regard to the City of Nome’s application for a

Department of the Army (DA) permit, file number

071-OY D-2-820546, Norton Sound 36, to place fill

material to construct a port facility in Nome, Alaska.

This is tc inform you that in accordance with the

attached letter from the Office of the Solicitor, dated

May 16, 1983 a DA permit will not be issued until an

agreement has been reached between the Alaska De-

partment of Natural Resources and the City of Nome,

and a waiver or quit claim deed has been issued

preserving the coastline and the State-Federal bound-

ary. As per the telephone conversation between Mrs.

Georgina Akers and yourself, we will expect your

decision on this matter by July 20, 1983.

If you have any further questions, please contact

Mrs. Georgina Akers of my staff at the address above,

or call (907) 279-1123.

25a

Sincerely,

/8/ David B. Barrows

Chief

| Regulatory Functions Branch

Enclosure

Copies Furnished:

Ivan Widom, City Manager

City of Nome

P.O. 281

Nome, Alaska 99762

Mr. Michael Marten

TAMAS Engineers

4791 Business Park Blvd., Suite 1

Anchorage, Alaska 99083

[Enclosure Omitted]

26a

APPENDIX G

STATE OF ALASKA

DEPARTMENT OF NATURAL RESOURCES

OFFICE OF THE COMMISSIONER

Colonel Neil Saling May 9, 1984

U.S. Corps of Engineers

District Engineer

Pouch 898

Anchorage, Alaska 99506

Dear Colonel Saling:

Enclosed is the State of Alaska’s disclaimer to addi-

tional submerged lands based on construction of the

Nome port facility. It is our understanding that it

has been approved as to form by representatives of

both the United States Attorney General and the

Solicitor of the United States Department of the

Interior.

We hope the submission of this disclaimer will

enable the Corps of Engineers to issue the permit for

construction of the Nome port facility without further

delay. If we can do anything more in this regard,

please contact us at your earliest convenience.

Sincerely,

/s/ Esther C. Wunnicke

ESTHER C. WUNNICKE

Commissioner

ECW :CTK:djc

Enclosure

ec: Louis F. Claiborne, Esq.

Lawrence J. Jensen, Esq.

Lyle Carson

R. Eldridge Hicks

27a

DISCLAIMER

WHEREAS, the City of Nome (‘“Nome’’) has ap-

plied to the United States Army Corps of Engineers

for a permit to construct a port facility at Nome;

WHEREAS, the project for which Nome is seeking

the Corps of Engineers permit is fundamental to eco-

nomic development in Northwestern Alaska;

WHEREAS, both statewide and nationwide bene-

fits will be derived from the proposed Nome port

facility through increased employment, increased rev-

enue generated, and enhanced economic opportunities

in Northwestern Alaska and the adjacent outer con-

tinental shelf;

WHEREAS, under the Submerged Lands Act, 43

U.S.C. §§ 1301 et seq., construction of such a facility

might affect the location of the coast line boundary

of the State of Alaska, including the offshore bound-

ary between the outer continental shelf and state-

owned lands beneath navigable water

WHEREAS, under 33 C.F.R. § 320.4(f), the Corps

of Engineers is required to consult with the United

States Attorney General and the Solicitor of the De-

partment of the Interior if a project for which a per-

mit is sought might affect the coast line;

WHEREAS, the Corps of Engineers has consulted

the Attorney General and the Solicitor pursuant to 33

C.F.R. § 320.4 (f) ;

WHEREAS, the Corps of Engineers has been re-

quested by the Attorney General and the Solicitor te

withhold approval of Nome’s permit application be-

cause of the potential effect on Alaska’s coast line;

28a

WHEREAS, the Corps of Engineers has deter-

mined that it will not issue such a permit over the

Attorney General’s and the Solicitor’s objections on

this ground;

WHEREAS, the Attorney General’s and the So-

licitor’s objections to the permit application on this

ground would be removed if a binding disclaimer is

entered by the State of Alaska to the effect that

Alaska does not, and will not, treat the facility as

extending its coast line for purposes of the Submerged

Lands Act;

WHEREAS, the Alaska Attorney General, in a

formal opinion dated October 29, 1980, concluded that

the Alaska Commissioner of Natural Resources has

the power to issue such a disclaimer;

WHEREAS, Alaska would enter such a disclaimer

without objection if the Corps of Engineers has the

legal authority to require the state to enter such a

disclaimer before issuing such a permit;

WHEREAS, Alaska and the United States dis-

agree as to whether the Corps of Engineers has the

legal authority to require the state to enter such a

disclaimer before issuing such a permit;

WHEREAS, Alaska would not enter such a dis-

claimer but for the Corps of Engineers’ determination

that it will not issue the permit unless such a dis-

claimer is entered, thereby removing the Attorney

General’s and the Solicitor’s objections to issuance of

the permit;

WHEREAS, it is neither in the United States in-

terest nor in Alaska’s interest to delay construction of

the Nome port facility while the question of the Corps

29a

of Engineers’ legal authority to require such a dis-

claimer is resolved;

WHEREAS, this disclaimer is entered without

prejudice to Alaska’s right to file an appropriate ac-

tion to determine whether the Corps of Engineers has

the legal authority to require such a disclaimer prior

to issuing such a permit;

WHEREAS, this disclaimer is fully effective and

binding upon the State of Alaska, but becomes inef-

fective and without force and effect upon a final de-

termination by a court of competent jurisdiction that

the Corps of Engineers does not have of the legal

authority to require such a disclaimer prior to issuing

such a permit; and

WHEREAS, it is the intent of both the United

States and Alaska that this disclaimer remove: the

Attorney General’s and the Solicitor’s objections to

issuance of the permit for construction of the Nome

port facility, thereby allowing the construction to pro-

ceed, while at the same time preserving both the

United States’ legitimate interest is not having

Alaska’s coast line extended if the Corps of Engineers

has the legal authority to require such a disclaimer

prior to issuing such a permit and Alaska’s interest

in not being bound by such a disclaimer if the Corps

of Engineers does not have such legal authority;

THEREFORE, the State of Alaska, acting by and

through the Commissioner of Natural Resources, pur-

suant to the authority granted to the commissioner

by art. VIII, sec. 1 of the Alaska Constitution, AS

38.05.020(b), AS 38.05.027(a), AS 38.05.035(a)

(14), and AS 38.05.0315(a), declares and agrees as

follows:

30a

1. Subject to paragraph 4 below, the State of

Alaska agrees that the coast line and the boundaries

of the State of Alaska are not to be deemed to be in

any way affected by the construction, maintenance, or

operations of the Nome port facility. This document

should be construed as a binding disclaimer by the

State of Alaska to the effect that the state does not,

and will not, treat the Nome port development as

extending its coast line for purposes of the Sub-

merged Lands Act, again subject to paragraph 4

below.

2. This disclaimer is executed solely for the pur-

pose of complying with the conditions recommended

by the Solicitor of the Department of the Interior and

the Attorney General and maintains the status quo

of the baseline and the state-federal boundary. It

does not affect property or claims to which Alaska is

now entitled. It is not an admission by the State of

Alaska or by the United States as to the present loca-

tion of the shoreline, coast line, or the boundaries of

the State of Alaska, and is without prejudice to any

contention that any party may now or hereafter make

regarding such present location.

3. This disclaimer is entered without prejudice to

Alaska’s right to file an appropriate action leading

to a determination whether the Corps of Engineers

has the legal! authority to require such a disclaimer

before issuing a permit for a project which might

affect the coast line.

4, This disclaimer becomes ineffective and without

force and effect upon a final determination by a court

of competent jurisdiction in any appropriate action

that the Corps of Engineers does not have the legal

authority to require such a disclaimer before issuing

8la

a permit for a project which might affect the coast

line.

DATED:

May 9, 1984

STATE OF ALASKA

/8/ Esther C. Wunnicke

ESTHER WUNNICKE,

Commissioner

Department of Natural

Resources

32a

APPENDIX H

U.S. DEPARTMENT OF JUSTICE

OFFICE OF THE SOLICITOR GENERAL

Washington, D.C. 20530

June 15, 1984

Colonel Neil Saling

District Engineer

United States Army

Corps of Engineers

Pouch 898

Anchorage, Alaska 99506

Dear Colonel Saling:

Re: Artificial coastline construction

in the area of Nome, Alaska.

The State of Alaska has now disclaimed any Sub-

merged Land Act consequence of the proposed jetty

for Nome. That disclaimer satisfies any objection

which the Department of Justice might otherwise

have interposed to the issuance of a permit for that

jetty. We have been advised by the Office of the

Solicitor, United States Department of the Interior,

that the disclaimer has likewise satisfied any possible

Submerged Lands Act concern of that Department.

Thank you for giving us the opportunity to review

the application.

Sincerely,

/s/ Louis F. Claiborne

Louis F. CLAIBORNE

Deputy Solicitor General

33a

APPENDIX I

SECTIONS 10 & 404

STATEMENT OF FINDINGS

This concerns the decision to issue a Department of

the Army permit under Section 10 of the River and

Harbor Act of 3 March 1899 (30 Stat. 1151; 33

U.S.C. 403) and Section 404 of the Clean Water Act

(Public Law 95-217) to place approximately 1,477,000

cubie yards of fill to construct an onshore storage

area and roadway system, an offshore storage area-

barge berthing facility, and an earth-filled pier con-

necting the onshore and offshore facilities.

1. I have reviewed and evaluated, in light of the

overall public interest, the documents and factors

concerning the permit application, as well as the

stated views of other interested Federal and non-

federal agencies and the concerned public relative to

the proposed work in waters of the United States.

2. The possible consequences of this proposed work

have been evaluated and the work is in accordance

with regulations published in 33 CFR, Parts 322 and

323. Factors bearing on my review include conserva-

tion, economics, aesthetics, general environmental

concerns, wetlands, cultural values, fish and wildlife

values, flood hazards, flood plain values, land use,

navigation, shoreline erosion and accretion, recrea-

tion, water supply and conservation, water quality,

energy needs, safety, food and fiber production, min-

eral needs, and, in general, the needs and welfare of

the people.

3. In evaluation of this work and consideration of

comments received from coordination of Public No-

tice NPACO No. 071-OYD-2-820546 dated October

20, 1982 the following points are considered pertinent:

34a

a. Federal Agencies: The U.S. Fish and Wildlife

Service had concerns and requested one special con-

dition. The concerns were resolved by modification of

the applicant’s proposal (causeway breach). The

recommended special condition is incorporated in the

ADEC certification. The National Marine Fisheries

Service requested two special conditions. The first

condition (monitoring program) was incorporated

into the applicant’s proposal. The second condition

was included on the permit. The Environmental

Protection Agency requested one condition (monitor-

ing program). This condition was incorporated into

the applicant’s proposal and referred to in the special

conditioning of this permit. The Department of the

Interior objected to the issuance of the permit unless

an agreement was signed by the State of Alaska to

waive its rights to any additional submerged lands

created by the construction of this project. This

agreement has been signed by the State of Alaska

and approved by the Office of the Solicitor. The U.S.

Coast Guard had no objections to the proposed work,

and informed the applicant of the requirements neces-

sary for this type of project.

b. State & Local Agencies: The Alaska Depart-

ment of Fish and Game had no objection to the pro-

posed project and did not request that any special

conditions be included in the permit. The Alaska

Department of Natural Resources, and the Advisory

Council on Historic Preservation concurred with this

office that the proposed project would not adversely

affect the two historical sites located within the area.

The Alaska Department of Environmental Conserva-

tion (ADEC) issued a Certificate of Reasonable As-

surance pursuant to Section 401 of the Clean Water

Act and in accordance with the Alaska Water Quality

Standards with seven stipulations. In accordance

35a

with 33 U.S.C. 1341, all conditions of the ADEC cer-

tification are incorporated as part of the DE permit;

therefore, they are not listed as special conditions.

The Alaska Division of Governmental Coordination

certified that the proposed work is consistent with the

Alaska Coastal Management Program with the same

stipulations that were included on the ADEC 401

certification.

It is presumed from the comments received from the

State of Alaska and the lack of response from local

agencies that the proposed work conforms with ap-

plicable local laws, regulations, and codes, and is in

keeping with similar activities found in Alaskan

waters.

ce. Individuals or Organized Groups: No individ-

uals or organized groups commented on the proposed

work. The work is not considered to be contrary to

the general public interest.

d. Other Considerations: An ecological evaluation

as required by Section 404(b) (1) of the Clean Water

Act has been made following the evaluation guidance

in 40 CFR 230.4, in conjunction with the evaluation

considerations in 40 CFR 230.5. The proposal was

found to comply with the 404(b) (1) guidelines with

inclusion of the following three special conditions:

(1) That the permittee shall dredge the breach and

entrances to the design depth (8 feet below MLLW),

when deposition has reduced the design depth to a

depth of 3 feet below MLLW. The permittee shall

contact the District Engineer (D.E.) prior to per-

forming any dredging of the breach and entrances.

The dredged material shall be placed at a Bite ap-

proved by the D.E. The breach and entrances shall be

kept open or maintained over the life of the project.

36a

(2) That the permittee shall implement the ap-

proved Littoral Drift Monitoring program prior to

the construction of the causeway or any related struc-

ture. This monitoring program shall continue for the

life of the project, unless determined otherwise by

the D.E.

(3) That siiould the D.E. determine, through the

monitoring program, that significant shoreline ero-

sion is occurring the permittee shall be required to

develop and implement a shoreline protection pro-

gram to the satisfaction of the D.E.

These conditions were included.

4. I find that issuance of the Department of the

Army permit as prescribed by regulations published

in 33 CFR, Part 322 and 323 and with scope of

work as described in the introduction to this docu-

ment, and in accordance with the drawings attached

to Public Notice NAPCO No. 071-OYD-2-820546

dated October 20, 1982 is based on thorough analysis

and evaluation of the various factors enumerated

above; that there are no reasonable alternatives avail-

able to the applicant that will achieve the purposes

for which the work is being conducted; that the pro-

posed work is in accordance with the overall desires

of the public as reflected in the comments of State

and local agencies and the general public; that the

proposed work is deemed to comply with established

State and local laws, regulations, and codes; that

there have been no identified significant adverse en-

vironmental effects related to the work; that the is-

suance of this permit is consonant with national pol-

icy, statutes, and administrative directives; and that

on balance, the total public interest would best be

37a

served by the issuance of a Department of the Army

permit to the city of Nome for the proposed work.

FOR THE DISTRICT ENGINEER:

/s/ David B. Barrows

Davip B. BARROWS

Chief, Regulatory Branch

Date 9 Jul 84

38a

APPENDIX J

DEPARTMENT OF THE ARMY

ALASKA DISTRICT CORPS OF ENGINEERS

ANCHORAGE, ALASKA 99506

Regulatory Branch 9 JUL 1984

Permit Processing Section

Lyle Larson, City Manager

Post Office Box 281

Nome, Alaska 99762

Dear Mr. Larson:

Enclosed are the original and one copy of the De-

partment of the Army permit, file number 071-OYD-

2-820546, Norton Sound 36, to place fill material to

construct an earth filled pier connection onshore and

offshore facilities, near Nome, Alaska. Please sign,

date, and return both copies to this office for valida-

tion.

The Alaska Department of Environmental Conser-

vation has issued a Certificate of Reasonable Assur-

ance pursuant to Section 401 of the Clean Water Act

for your project and they have found it to be in ac-

cordance with the Alaska Water Quality Standards.

In addition, the Alaska Division of Environmental

Coordination has certified that your project is con-

sistent with the Alaska Coastal Management Pro-

gram.

It should be understood that this is not an author-

ization to commence construction. No work is to be

performed in the waterway or adjacent wetlands until

you have received a validated copy of the permit.

Sincerely,

DAvipD A. BARROWS

Chief, Regulatory Branch

[Enclosure Omitted]

39a

APPENDIX K

Application No. 071-OYD-2-820546

Name of Applicant City of Nome

Effective Date 25 July 1984

Expiration Date (/f applicable)

File No. Norton Sound 36

DEPARTMENT OF THE ARMY

PERMIT

Referring to written request dated August 25, 1982

for a permit to:

(X) Perform work in or affecting navigable waters

of the United States, upon the recommendation of the

Chief of Engineers, pursuant to Section 10 of the

Rivers and Harbors Act of March 3, 1899 (33 U.S.C.

403) ;

(X) Discharge dredged or fill material into waters of

the United States upon the issuance of a permit from

the Secretary of the Army acting through the Chief

of Engineers pursuant to Section 404 of the Clean

Water Act (33 U.S.C. 1344);

( ) Transport dredged material for the purpose of

dumping it into ocean waters upon the issuance of a

permit from the Secretary of the Army acting

through the Chief of Engineers pursuant to Section

103 of the Marine Protection, Research and Sanc-

tuaries Act of 1972 (86 Stat. 1052; P.L. 92-532);

City of Nome

Post Office Box 281

Nome, Alaska 99762

is hereby authorized by the Secretary of the Army:

to place approximately 1,477,000 cubic yards (cy)

40a

of fill to construct an onshore storage area and road-

way system, an offshore storage area-barge berthing

facility, an earth-filled pier connecting the onshore

and offshore facilities, and to monitor the project in

accordance with the attached monitoring program.

Approximate dimensions for the structures are as

follows:

a. A 3,575’ long x 85’ wide (crown) x 16’ above

sea level (ranging from 16’ to approximately 50’

deep) fill for a pier, which will be protected with ap-

proximately 10-15’ of armor rock; side slopes would

be 1.5:1;

b. a 250’ wide x 800’ long x 40’ deep fill for a

general cargo storage area will be constructed at the

seaward terminus of the pier; a 15’ layer of armor

rock will protect the 1.5:1 side slopes, the dock struc-

ture will consist of 30’ diameter concrete caisons, 31’

on center with grated connections ;

ce. a 520’ lof x 100’ wide marshalling yard will

connect the proposed barge docking facility and a

future phase II oil rig service marshalling area ad-

jacent to “‘b” above;

d. a 1,200’ long x 450’ x 9’ deep fill for an onshore

storage pad west of the pier road; a 26’ crown width

road, with 4:1 side slopes will surround the storage

pads; and =

e. a 2,400’ long x 52’ x 9’ to 16’ (variable) deep

fill for a road system will connect the offshore storage

area to the pier; the following components comprise

this road system;

1. The western spur will be an approximately 260’

long x 16’ wide x 8’-11’ (variable) deep fill, with 4:1

side slopes;

2. the northeastern spur will be an approximately

530’ long x 40’ wide x 6’ deep fill with 2:1 side slopes;

4la

this spur will run from the northeast terminus to a

central tangent point;

3. a 140’ long x 16’ x 6’ deep spur, with 2:1 side

slopes, running southeast from the northeast spur

(in “‘2” above) to the beach;

4. a 400’ long x 52’ wide x 4’-10’ (variable) deep

fill for a road, with 4:1 side slopes, from the shore-

line to the southeast corner of the onshore storage

pad; and

5. an 800’ long x 52’ x 4’-10’ (variable) deep fill

for a road with 4:1 side slopes, running north of the

juncture point (in “4” above) along the east side of

the storage pad approximately 370’ past the northeast

corner of that pad.

Breakdown of the fill types and quantities are as

follows:

a. Dredge tailings for the pier and terminal facili-

ties core—700,000 cy;

b. 300,000 cy of quarry rock for the pier and

termial facilities filter;

ec. 254,000 cy quarry rock for the pier and termi-

nal facilities armor slope protection;

d. 63,000 cy of dredge tailings for the road system

between the onshore storage pad and the pier;

e. 93,000 cy non-frost susceptible dredge tailings

for the onshore storage pad;

f. 24,000 cy of dredge tailings for the road system

between the onshore storage pad and the pier; and

g. 10,000 cy of non-frost susceptible dredge tail-

ings for the onshore road system.

in Norton Sound, sections 26 and 27, T. 11 S., R. 34

W., K.R.M. at Nome, Alaska in accordance with the

plans and drawings attached hereto which are in-

corporated in and made a part of this permit (on

drawings, give file number or other definite identifi-

cation marks. )

42a

“PROPOSED: CONSTRUCT PORT FACILITIES;

IN: NORTON SOUND; AT: NOME, ALASKA;

APPLICATION BY: CITY OF NOME; DATED:

OCTOBER 2, 1982; 7 SHEETS; PORT OF NOME

LITTORAL DRIFT MONITORING AND SHORE

PROTECTION PROGRAM, MAY 4, 1984; ALSO

SUBJECT TO ADEC SPECIAL CONDITIONS.”

subject to the following conditions:

I. General Conditions:

a. That all activities identified and_ authorized

herein shall be consistent with the terms and condi-

tions of this permit; and that any activities not spe-

cifically identified and authorized herein shall con-

stitute a violation of the terms and conditiogs of this

permit which may result in the modification, suspen-

sion or revocation of this permit, in whole or in part,

as set forth more specifically in General Conditions j

or k hereto, and in the institution of such legal pro-

ceedings as the United States Government may con-

sider appropriate, whether or not this permit has been

previously modified, suspended or revoked in whole

or in part.

b. That all activities authorized herein shall, if

they involve, during their construction or operation,

any discharge of pollutants into waters of the United

States or ocean waters, be at all times consistent with

applicable water quality standards, effluent limita-

tions and standards of performance, prohibitions, pre-

treatment standards and management practices es-

tablished pursuant to the Clean Water Act (33 U.S.C.

1344), the Marine Protection, Research and Sanc-

tuaries Act of 1972 (P.L. 92-532, 86 Stat. 1052), or

or pursuant to applicable State and local law.

48a

ec. That when the activity authorized herein in-

volves a discharge during its construction or opera-

tion, or any pollutant (including dredged or fill mate-

rial), into waters of the United States, the author-

ized activity shall, if applicable water quality stand-

ards are revised or modified during the term of this

permit, be modified, if necessary, to conform with

such revised or modified water quality standards

within 6 months of the effective date of any revision

or modification of water quality standards, or as di-

rected by an implementation plan contained in such

revised or modified standards, or within such longer

period of time as the District Engineer, in consulta-

tion with the Regional Administrator of the Environ-

mental Protection Agency, may determine to be rea-

sonable under the circumstances.

d. That the discharge will not destroy a threat-

ened or endangered species as identified under the

Endangered Species Act, or endanger the critical

habitat of such species.

e. That the permittee agrees to make every reason-

able effort to prosecute the construction or operation

of the work authorized herein in a manner so as to

minimize any adverse impact on fish, wildlife, and

natural environmental values.

f. That the permittee agrees that he will prose-

cute the construction or work authorized in a manner

so as to minimize any degradation of water quality.

g. That the permittee shall allow the District En-

gineer or his authorized representative(s) or desig-

nee(s) to make periodic inspections at any time neces-

sary in order to assure that the activity being per-

formed under authority of this permit is in accord-

ance with the terms and conditions prescribed herein.

h. That the permittee shall maintain the structure

or work authorized herein in good condition and in

44a

reasonable accordance with the plans and drawings

attached hereto.

i. That this permit does not convey any property

rights, either in real estate or material, or any exclu-

sive privileges; and that it does not authorize any

injury to property or invasion of rights or any in-

fringement of Federal, State, or local laws or regu-

lations.

j. That this permit does not obviate the require-

ment to obtain state or local assent required by law

for the activity authorized herein.

k. That this permit may be either modified, sus-

pended or revoked in whole or in part pursuant to the

policies and procedures of 33 CFR 325.7.

l. That in issuing this permit, the Government has

relied on the information and data which the per-

mittee has provided in connection with his permit

application. If, subsequent to the issuance of this per-

mit, such information and data prove to be mate-

rially incomplete or inaccurate, this permit may be

modified, suspended or revoked, in whole or in part,

and/or the Government may, in addition, institute

apropriate legal proceedings.

m. That any modification, suspension, or revoca-

tion of this permit shall not be the basis for any claim

for damages against the United States.

n. That the permittee shali notify the District

Engineer at what time the activity authorized herein

will be commenced, as far in advance of the time of

commencement as the District Engineer may specify,

and of any suspension of work, if for a period of

more than one week, resumption of work and its

completion.

o. That if the activity authorized herein is not

completed on or before day of , 19 .

(three years from the date of issuance of this permit

45a

unless otherwise specified) this permit, if not pre-

viously revoked or specifically extended, shall auto-

matically expire.

p. That this permit does not authorize or approve

the construction of particular structures, the author-

ization or approval of which may require authoriza-

tion by the Congress or other agencies of the Federal

Government.

q. That if and when the permittee desires to aban-

don the activity authorized herein, unless such aban-

donment is part of a transfer procedure by which the

permittee is transferring his interests herein to a

third party pursuant to General Conditions hereof, he

must restore the area to a condition satisfactory to

the District Engineer.

r. That if the recording of this permit is possible

under applicable State or local law, the permittee

shall take such action as may be necessary to record

this permit with the Register of Deeds or other ap-

propriate official charged with the responsibility for

maintaining records of title to and interests in real

property.

s. That there shall be no unreasonable interference

with navigation by the existence or use of the activity

authorized herein.

t. That this permit may not be transferred to a

third party without prior written notice to the Dis-

trict Engineer, either by the transferee’s written

agreement to comply with all terms and conditions of

this permit or by the transferee subscribing to this

permit in the space provided below and thereby agree-

ing to comply with all terms and conditions of this

permit. In addition, if the permittee transfers the

interests authorized herein by conveyance of realty,

the deed shall reference this permit and the terms

46a

and conditions specified herein and this permit shall

be recorded along with the deed with the Register of

Deeds or other appropriate official.

u. That if the permittee during prosecution of the

work authorized herein, encounters a previously un-

identified archeological or other cultural resource

within the area subject to Department of the Army

jurisdiction that might be eligible for listing in the

National Register of Historic Places, he shall imme-

diately notify the district engineer.

II. Special Conditions: (Here list conditions relating

specifically to the proposed structure or work author-

ized by this permit) :

a. That the permittee shall dredge the breach and

entrances to the design depth (8 feet below MLLW),

when deposition has reduced the design depth to a

depth of 3 feet below MLLW. The permittee shall

contact the District Engineer (D.E.) prior to per-

forming any dredging of the breach and entrances.

The dredged material shall be placed at a site ap-

proved by the D.E. . The breach and entrances shall

be kept open or maintained over the life of the project.

b. That the permittee shall implement the ap-

proved Littoral Drift Monitoring program prior to

the construction of the causeway or any related struc-

ture. This monitoring program shall continue for the

life of the project, unless determined otherwise by the

D.E. .

ce. That should the D.E. determine, through the

monitoring program, that a significant shoreline ero-

sion is occurring the permittee shail be required to

develop and implement a shoreline protection program

to the satisfaction of the D.E. .

47a

The following Special Conditions will be applicable

when appropriate:

STRUCTURES IN OR AFFECTING NAVIGABLE

WATERS OF THE UNITED STATES:

a. That this permit does not authorize the inter-

ference with any existing or proposed Federal proj-

ect and that the permittee shall not be entitled to

compensation for damage or injury to the structures

or work authorized herein which may be caused by

or result from existing or future operations under-

taken by the United States in the public interest.

b. That no attempt shall be made by the permittee

to prevent the full and free use by the public of all

navigable waters at or adjacent to the activity au-

thorized by this permit.

ce. That if the display of lights and signals on any

structure work authorized herein is not otherwise

provided for by law, such lights and signals as may be

prescribed by the United States Coast Guard shall be

installed and maintained by and at the expense of

the permittee.

d. That the permittee, upon receipt of a notice of

revocation of this permit or upon its expiration be-

fore completion of the authorized structure or work,

shall, without expense to the United States in such

time and manner as the Secretary of the Army or his

authorized representative may direct, restore the

waterway to its former conditions. If the permittee

fails to comply with the direction of the Secretary of

the Army or his authorized representative, the Secre-

tary or his designee may restore the waterway to its

former condition, by contract or otherwise, and re-

cover the cost thereof from the permittee.

e. Structure for Small Boats: That permittee

hereby recognizes the possibility that the structure

48a

permitted herein may be subject to damage by wave

wash from passing vessels. The issua.ice of this permit

does not relieve the permittee from taking all proper

steps to insure the integrity of the structure permitted

herein and the safety of boats moored thereto from

damage by wave wash and the permittee shall not

hold the United States liable for any such damage.

MAINTENANCE DREDGING:

a. That when the work authorized herein includes

maintenance dredging, it may be performed under

this permit for years from the date of issu-

ance of this permit (ten years unless otherwise indi-

cated ) ;

b. That the permittee will advise the District En-

gineer in writing at least two weeks before he intends

to undertake any maintenance dredging.

DISCHARGES OF DREDGED OR FILL MATE-

RIAL INTO WATERS OF THE UNITED STATES:

a. That the discharge will be carried out in con-

formity with the goals and objectives of the EPA

Guidelines establishd pursuant to Section 404(b) of

the Clean Water Act and published in 40 CFR 230;

b. That the discharge will consist of suitable ma-

terial free from toxic pollutants in toxic amounts.

ce. That the fill created by the discharge will be

properly maintained to prevent erosion and other non-

point sources of pollution.

DISPOSAL OF DREDGED MATERIAL INTO

OCEAN WATER:

a. That the disposal will be carried out in con-

formity with the goals, objectives, and requirements

49a

of the EPA criteria established pursuant to Section

102 of the Marine Pyotection, Research and Sanc-

tuaries Act of 1972, published in 40 CFR 220-228.

b. That the permittee shall place a copy of this

permit in a conspicuous place in the vessel to be used

for the transportation and/or disposal of the dredged

material as authorized herein.

This permit shall become effective on the date of

the District Engineer’s signature.

Permittee hereby accepts and agrees to comply with

the terms and conditions of this permit.

/8/ Larry L. Larson 7 7/16/84

City Manager Permittee & Title

BY AUTHORITY OF THE SECRETARY OF

THE ARMY:

/s/ John R. Staser 7/25/84

JOHN R. STASER

CPT, Corps of Engineers, Acting Chief, Regulatory

Branch FOR: DISTRICT ENGINEER,

U.S. ARMY, CORPS OF ENGINEERS, Colonel Neil

E. Saling

Transferee hereby agrees to comply with the terms

and conditions of this permit.

TRANSFEREE DATE

50a

APPENDIX L

DEPARTMENT OF THE ARMY

ALASKA DISTRICT CORPS OF ENGINEERS

ANCHORAGE, ALASKA, 99506

Regulatory Branch

Permit Processing Section

PERMITTEE: City of Nome ~

EFFECTIVE DATE: Sept. 13, 1990

REFERENCE NO. Q-820546

Norton Sound 36

DEPARTMENT OF THE ARMY

PERMIT MODIFICATION

Department of the Army (DA) permit No. 2-

820546, Norton Sound 36, was issued to the City of

Nome on July 25, 1984, and subsequently modified on

October 28, 1987, October 26, 1988, September 8,

1989, and October 27, 1989, for the placement of fill

material to construct a causeway at Nome, Alaska.

The permit is hereby modified to include the follow-

ing additional work:

“place a 10-inch-diameter, effluent outfall line

in the causeway. The outfall diffuser would be

located 400 linear feet south and east of the

causeway terminus.”

If the activity authorized herein is not completed

within 3 years of the date of this letter, the authori-

zation of this modification, if not previously revoked

or specifically extended, shall automatically expire.

All other terms and conditions of the original per-

mit remain in full force and effect.

5la

This authorization and the enclosed modified plans

should be attached to the original permit. Plan sheets

1, 4, and 6 of 11 of DA permit No. 2-890302, Norton

Sound 57 (attached), are hereby incorporated by

reference into this modification.

By Authority of the Secretary of the Army:

/s/ Timothy R. Jennings

TIMOTHY R. JENNINGS

Chief, Northern Unit

Permit Processing Section

Enclosure

[Enclosure Omitted ]

52a

APPENDIX M

STATE OF ALASKA

OFFICE OF THE GOVERNOR

Office of Management and Budget

Division of Governmental Coordination

April 11, 1988

Steve Cowper, Governor

Central Office

P.O. Box AW

Juneau, Alaska 99811-0165

Phone: (907) 465-3562

Southcentral Regional Office

2600 Denali Street

Suite 700

Anchorage, Alaska 99503-2795

Phone: (907) 274-1581

Mr. Alan Powers

Regional Manager

Alaska OCS Region

Southeast Regional Office

431 North Franklin

P.O. Box AW, Suite 101

Juneau, Alaska 99811-0155

Phone: (907) 465-3562

Northern Regional Office

675 Seventh Avenue

Station H

Fairbanks, Alaska 99701-4596

Phone (907) 456-3084

Minerals Management Service

949 East 36th Avenue

Anchorage, AK 99508-4302

Dear Mr. Powers:

The State of Alaska has reviewed the Minerals Man-

agement Service’s (MMS) request for comments and

nominations for a mining lease sale in Norton Sound.

The state is actively participating in the federal-state-

local coordination team effort to help prepare the

Norton Sound lease sale Environmental Impact State-

ment (EIS). Accordingly, the state will be submit-

ting information and reviewing the EIS at several

stages during its development.

53a

Available Data and Literature

The state has submitted (or will shortly) the follow-

ing information for MMS’s use during EIS prepara-

tion:

[Document List Omitted]

Assumptions for EIS Modeling

The state has also reviewed the assumptions MMS is

using for the EIS. These were distributed at the first

coordination team meeting. We recommend changes

to the assumptions regarding dredge size and pre-

dicted area of disturbance. It is probable that either

smaller or larger dredge(s) than those stated in the

MMS assumptions will be utilized for mining. MMS

also assumes that the area dredge each year will be 60

acres year per dredge. This assumption however is

based on current nearshore operations (BIMA) and

does not fully consider that aerial disturbance will

be a function of both dredge size and the depth

dredge. It is probable that in future years a 120

acre/year per dredge disturbance may occur. (Addi-

tionally, please note that this is a permit imposed

limitation.) The state recommends that MMS prepare

mining scenarios with both “low” and “high” as-

sumptions regarding dredge size and bottom disturb-

ance. A model should be developed for a low, high

and mid-point dredge size and bottom disturbance

scenario.

We also recommend that in addition to estimating

bottom disturbance in terms of acres, that the amount

of cubic yardage disturbed and the depth of disturb-

ance be noted. These two additional parameters will

aid in estimating potential mining related impacts.

54a

Proposed Lease Sale Deletions

Subsequent to the construction of the Nome causeway,

the State of Alaska executed a waiver of claims to

additional submerged lands based on the use of cause-

ways to delimit Alaska’s seaward boundary, unless a

court of competent jurisdiction finds that the U.S.

does not have’ the legal authority to require such a

waiver. The state intends to file an appropriate ac-

tion to resolve this issue, and in the meantime, re-

spectfully requests MMS to delete the disputed acre-

age from the lease sale. The enclosed protraction

sheets delineate the disputed 1082.16 acres.

Conclusion

The state looks forward to continued cooperation with

MMS ‘*rough the coordination team process. We will

continue to provide MMS with information and re-

view of the lease sale EIS, based upon our knowledge

and experience with the offshore mining industry.

Please call me or Barbara Sheinberg at 465-3562 if

you have any questions regarding the state’s com-

ments or recommendations.

Sincerely,

/s/ Robert L. Grogan

ROBERT L. GROGAN

Director

Enclosure

ec: Members of Alaska-OCS Mining Program

Coordination Team

[Enclosure Omitted]

55a

APPENDIX N

STATE OF ALASKA

DEPARTMENT OF LAW

Office of the Attorney General

Steve Cowper, Governor

REPLY TO:

O) 1031 W 4th Avenue Suite 200

Anchorage, Alaska 99501-1994

Phone: (907) 276-3550

FAX: (907) 276-3697

OO 1st National Center

100 Cushman St. Suite 400

Fairbanks, Alaska 99701-4679

Phone: (907) 452-1568

FAX: (907) 456-1317

Y¥ P.O. Box K—State Capitol

Juneau, Alaska 99811-0300

Phone: (907) 465-3600

FAX: (907) 463-5295

May 22, 1990

Honorable Donald P. Hodel

Secretary of the Interior

Department of the Interior

C & 18th Streets, N.W.

Washington, D.C. 2-0249-0000

Re: Notice of intent to file suit

Dear Secretary Hodel:

Pursuant to 28 U.S.C. §$ 2409a(m), the State of

Alaska hereby gives notice that it intends to file suit

to quiet title to a tract of submerged land in North-

west Alaska. For ease of reference, the tract is re-

ferred to as the “Port of Nome tract.” A full legal

description of the tract is enclosed as Exhibit A, and

56a

the tract is generally depicted on the enclosed terri-

torial sea boundary diagram, Exhibit B.

In general terms, the Port of Nome tract consists

of the submerged lands which are more than three

miles from the natural shore line but within three

miles of the low water line on a solid fill causeway

which serves as a dock for the City of Nome. Such a

causeway ordinarily constitutes an extension of a

state’s coast line “or delimiting that state’s three-mile

grant under the Submerged Lands Act of 1953, 43

U.S.C. §§ 1301 et seq. See, eg., United Sfiates v.

Louisiana, 389 U.S. 155, 158 (1967).

Because of objections by the United States Attor-

ney General and the Solicitor of the Department of

the Interior, however, the Corps of Engineers refused

to issue a permit for construction of the causeway

until the State of Alaska waived any claims to addi-

tional submerged lands which it might make as a

result of the causeway’s construction. On May 9,

1984, the state filed a conditional disclaimer to addi-

tional submerged lands to satisfy the Attorney Gen-

eral’s and Solicitor’s objections, a copy of which is

enclosed as Exhibit C.

At the same time, Alaska contended that the Corps

of Engineers did not have the legal authority to re-

quire such a disclaimer as a condition precedent to the

issuance of a permit and, in the absence of such a dis-

claimer, to deny a permit solely on the basis of the

Attorney General’s and the Solicitor’s objections. See

1980 Inf. Op. Att’y Gen. (Oct. 30; 663-80-0477), a

copy of which is enclosed as Exhibit D. Any dispute

over submerged land ownership which might arise as

a result of causeway construction is not one of the

factors which the Corps of Engineers is to consider as

part of its public interest review process. Indeed, 33

57a

C.F.R. 320.4(g) provides in part: “The dispute over

property ownership will not be a factor in the Corps

public interest decision.” (Emphasis added.) Also see

Mall Properties, Inc. v. Marsh, 672 F. Supp. 561,

566-71 (D. Mass. 1987), appeal dismissed 841 F.2d

440 (lst Cir.), cert. denied sub nom. City of New

Haven v. Mass., 109 S. Ct. 128 (1988) (the Corps of

Engineers’ authority to consider economic impacts in

its public interest review is limited to those economic

effects caused by the project’s impacts on the physical

environment); Missouri Coalition for the Environ-

ment v. Corps of Engineers, 678 F. Supp. 790, 802

(E.D. Mo. 1988), aff’d 866 F.2d 1025, 1033-34 (8th

Cir. 1989) (the Corps of Engineers is not to make

political decisions as to which entity’s economic in-

terests ought to be preferred, citing Mall Properties,

Ine.).

As a result, the disclaimer filed by the state pro-

vided in part: “This disclaimer becomes ineffective

and without force and effect upon a final determina-

tion by a court of competent jurisdiction in any ap-

propriate action that the Corps of Engineers does not

have the legal authority to require a disclaimer before

issuing a permit for a project which might affect the

coastline.” Alaska intends to seek such a determina-

tion in a quiet title action with respect to the Port

of Nome tract.

Having notified you of Alaska’s intention to file

suit and the basis therefore, and having provided you

with a description of the lands to be included in the

suit, we have satisfied the notice requirements of 28

U.S.C. § 2409a(m) for filing a quiet title action 180

days after you receive this letter.

This notice is not intended to delay or otherwise

adversely affect the proposed offshore mining lease

58a

sale near Nome, and preparation for that sale should

continue. The Port of Nome tract, however, should

either be deleted from any proposed offshore mining

lease sale pending resolution of the ownership ques-

tion or be the subject of an agreement under section

7 of the Outer Continental Shelf Lands Act, 43 U.S.C.

§ 1336, and Alaska Statute 38.05.027. This would

allow the tract to be leased with the revenues placed

in escrow pending final resolution of the ownership

issue.

We naturally would like to resolve these matters

without resort to litigation. If you or members of

your staff have any suggestions for resolution without

litigation, please contact us at your convenience.

Sincerely yours,

Douglas B. Baily

Attorney General

By: /s/ G. Thomas Koester

G. THOMAS KOESTER

Assistant Attorney General

GTK :tg

Enclosures [4]

ee w/encls. :

Allen D. Powers, Regional Director

Alaska OCS Region

U.S. Army Engineer, Alaska District

OCS Survey Group MD 625

P.O. Box 25165

Denver, Colorado 80225

.

.

‘

\

;

;

)

59a

Michael W. Reed, Attorney

General Litigation Section

United States Department of Justice

Lennie Gorsuch, Commissioner

Department of Natural Resources

John Katz, Special Counsel

State/Federal Relations

Robert Grogan, Director

Div. of Governmental Coordination

Jim Spargo

Coastal Boundary Section, DNR/ANC

John Briscoe, Esq.

[Enclosures B-D Omitted ]

60a

PORT OF NOME

A tract of tide and submerged land described by Uni-

versal Transverse Mercator (U.T.M.), NAD 1927,

grid bearings and distances, located within Township

12 South, Range 34 West, Sections 8, 14, 15, 16 and

17, Kateel River Meridian, Alaska, as generally de-

picted on the State of Alaska Territorial Sea Bound-

ary Diagram for said township and range and more

particularly described as follows:

Beginning for reference at the unmonumented north-

east corner of protracted Township 12 South, Range

34 West, thence South 25°26'40” West 4863.394

meters to the true point of beginning for this descrip-

tion, thence 2601.530 meters along a curve concave to

the north with a radius of 5556 meters, and a radius

point at U.T.M. coordinates North 7,151,924.352 East

478,970.694, thence 3254.734 meters along a curve

concave to the north with a radius of 5556 meters,

and a radius point at North 7,151,927.511 East

478,955.925, thence South 76°10'59” East 90.108

meters, thence South 75°11’42” East 540.049 meters,

thence South 73°56'35” East 330.015 meters to a

curve, thence 347.774 meters along said curve being

coneave to the north with a radius of 5556 meters,

and a radius point at U.T.M. coordinates North 7,-

153,125.790 East 477,452.600, thence South 75°44’11”

East 347.717 meters, thence South 77°31'46” East

770.826 meters to a curve, thence 2.936 meters along

said curve being concave to the north with a radius

of 5556 meters, and a radius point at U.T.M. coor-

dinates North 7,152,959.340 East 478,205.240, thence

South 77°33'34” East 525.560 meters, thence South

75 32'35” East 157.259 meters to a curve, thence

1920.311 meters along said curve being concave to

a ln

6la

the north with a radius of 5556 meters, and a radius

point at U.T.M. coordinates North 7,152,345.360 East

480,169.310, thence 112.647 meters along a curve

concave to the north with a radius of 5556

meters, and a radius point at U.T.M. coordinates

North 7,152,338.830 East 480,221.320, thence South

71°03'10” East 69.696 meters, thence South 70 °30'29”

East 445.587 meters to a curve, thence 69.950 meters

along said curve being concave to the north with a

radius of 5556 meters, and a radius point at U.T.M.

coordinates North 7,151,882.300 East 481,954.850,

thence South 71°09’28” East 230.294 meters to the

true point of beginning.

This tract contains 2,953,085.62 square meters (ap-

proximately 730 acres) more or less.

Exhibit A

Page 1 of 1

(“Port of Nome’’)

62a

APPENDIX O

CAUSEWAY

3 MILE GEOGRAPHIC BOUNDARY WITHOUT NOME CAUSEWAY

3 MILE GEOGRAPHIC BOUNDARY WITH NOME CAUSEWAY

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