Petition for Writ of Certiorari — Ahtna, Inc. v. Alaska

ee ines Nau |

89- 1446 FILED

WAR 19 1090

ree GOSRPH F. SPARHOL, JA,

. —— CLOAK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

AHTNA, INC.,

Petitioner,

We

STATE OF ALASKA

UNITED STATES OF AMERICA

WILLIAM CLARK, SECRETARY OF THE INTERIOR

ROBERT PENFOLD, ALASKA STATE DIRECTOR,

BUREAU OF LAND MANAGEMENT,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERT M. GOLDBERG

ROBERT M. GOLDBERG & ASSOCIATES

1107 West Seventh Avenue

Of Counsel Anchorage, Alaska 99501

PETER EDELMAN (907) 277-8561

DANIEL G. GROVE Counsel of Record

KECK, MAHIN & CATE

1201 New York Avenue, N.W.

Penthouse Suite

Washington, D.C. 20005

(202) 789-3400

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

QUESTION PRESENTED

Whether Congress’ incorporation by reference of the

Submerged Lands Act of 1953 into the Alaska Statehood

Act should be read as defeating the claims of Alaska Na-

tives to submerged lands when Section 4 of the Alaska

Statehood Act explicitly saves the entire issue of Native

land claims to be handled by Congress at a later date.

(i)

ii

STATEMENT UNDER RULE 29.1

The following are subsidiaries of Ahtna, Inc.:

Ahtna Construction and Primary Products Co.

Ahtna Development Corporation

Ahtna Enterprises, Inc.

TABLE OF CONTENTS

Page

| i

STATEMENT UNDER RULE 239.1 ............00000.0022000222...- ii

Teme OF Bienes dee ............-.............................. iv

Ne ewestasousciueceuesoeterurnts 1

Nee en nesesearebenousenecs 2

CONSTITUTIONAL AND STATUTORY PROVI-

Tee scovncnsabvedacsouce 2

eee Gee eee Gee .....................-...-..----00----. 2

A. Concise Statement of the Case ...........

Ne ccenewewereresaceeererersenecs

Ne eceuecsecceecscereeseses

REASONS FOR GRANTING THE WRIT .................... 8

THIS COURT SHOULD DECLARE THAT, CON- ,

TRARY TO THE DECISION BELOW, SUB-

MERGED LANDS SUBJECT TO NATIVE

CLAIMS WERE OUTSIDE THE SCOPE OF

ALASKA’S STATEHOOD GRANTS AND

THEREBY SELECTABLE BY NATIVES UN-

DER THE ALASKA NATIVE CLAIMS SETTLE-

cr lerencserensacestnieemansacncecwecors- x

a 17

(iii)

iv

TABLE OF AUTHORITIES

CASES Page

Alaska v. Ahtna, Inc., No. 87-8555 (App. A) ........ 8

Alaska v. United States, 662 F. Supp. 455 (D.

Fg Fae I arses nse tsar Os ee me

Alaska Public Easement Defense Fund v. Andrus,

435 F. Supp. 664 (D. Alaska 1977) 16

Alaska v. Udall, 420 F.2d 938 (9th Cir. 1969),

cert. denied, 397 U.S. 1076 (1970) .......... 5, 6, 10, 15, 16

Edwardsen v. Morton, 369 F. Supp. 1359 (D. D.C.

I ie a 10

Montana Power Co. v. Rochester, 127 F.2d 189

SU ie celciiaccciue 9

Moore v. United States, 157 F.2d 760 (9th Cir.

1946), cert. denied, 330 U.S. 827 (1947) ............ 9

Puyallup Indian Tribe v. Port of Tacoma, 717 F.2d

1251 (9th Cir. 1983), cert. denied, 465 U.S. 1049

2 FRRE I SE RPE EY et any ACR 8

The Daniel Ball, 77 U.S. (10 Wall.) 557 (1871)... 8

United States v. Alaska, 197 F. Supp. 834 (D.

SR I eile a oe 10

United States v. Alaska, 423 F.2d 764 (9th Cir.),

cert. denied, 400 U.S. 967 (1970) 0.000. 10

United States v. Atlantic Richfield Co., 435 F.

Supp. 1009 (D. Alaska 1977), aff’d, 612 F.2d

1132 (9th Cir.), cert. denied sub nom. Inupiat

Community of Artic Slope v. Atlantic Richfield

ae 6k | OR a en rene 5, 10, 16

Utah Div. of State Lands v. United States, 482

Sie I MIE i acencaicccseeninisshincheiacheuieell 2, 7, 14, 15, 16

CONSTITUTIONAL PROVISIONS AND STATUTES

pe FE 5 | Sa Lene ane 2

Alaska Statehood Act, 48 U.S.C. note prec. § 21... 2

I ra ne or 3, 5,9, 10, 11

gos Sr a Ba es ee 4,5, 10, 14

ENR ES TO 9

Rea en eS 9,11

Vv

TABLE OF AUTHORITIES—Continued

Page

Alaska Native Claims Settlement Act, 43 U.S.C.

OO I eT nines scree crensniocennrerensionncnsinoneres 2,3

Section 1601 (a)........... SURPASSED Tee BET OM 12

” ESERAE ERs evo ae nD meee Coe 12

oe eeamnempenoneioni 12

I i crsiniamnisiinsineieatnnetenmepbennesinssne 14

a cansaremeanennnnnin 6, 11

i 2 ceca aepmabnees 12

cance gieammmanebneth 13

Section 1616 .................. Due Pes Ee AUN eas me gE AC SEIMEI! 14

ee a Oe ER ee 14

Alaska National Interest Lands Conservation Act,

Pub. L. No. 96-487, 94 Stat. 2371

Oe ee I ciictnrcstendhirencesseccnserevnevonss 2,14

Alaska Statutes, 1962 (1988 ed.) -..................----..------ 15

Submerged Lands Act of 1953, 43 U.S.C. § 1311... 2

i ecenmbenetimnnnnnetnies 2

United States Constitution, Art. I, Sec. 8 -................. 2

OTHER AUTHORITIES

Alaska Land Use Council, ESTIMATES OF LAND TO

I cc nsehatnemssions 5

Berger, VILLAGE JOURNEY (1985) ....................--------- 6

Case, ALASKA NATIVES AND AMERICAN LAWS

5 IREREE RCI RRO PS Arca ace ON ee ee 6

Cohen, HANDBOOK OF FEDERAL INDIAN LAW

(1982) ..... a 4

TNCYCLOPEDIA BRITANNICA, Vol. I (1976)......... 3

Federal Field Committee, ALASKA NATIVES AND

I a aeadniaiaien 4

Naske, AN INTERPRETIVE HISTORY OF ALASKAN

Se ee 3

Rogers, CHANGE IN ALASKA (1970) ....................---. 4

United States Geological Survey, ACTIVITIES OF

THE ALASKA DISTRICT (Anchorage, 1987) ....... 4

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

No.

AHTNA, INC.,

7 Petitioner,

STATE OF ALASKA

UNITED STATES OF AMERICA

WILLIAM CLARK, SECRETARY OF THE INTERIOR

ROBERT PENFOLD, ALASKA STATE DIRECTOR,

BUREAU OF LAND MANAGEMENT,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

The petitioner, Ahtna, Inc. respectfully petitions for a

writ of certiorari to review the judgment of the United

States Court of Appeals for the Ninth Circuit entered

in this proceeding on December 13, 1989.

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Ninth Circuit, not yet reported, appears in Appendix

A to this petition (App. A, at la). The opinion of the

United States District Court, reported at Alaska v.

United States, 662 F. Supp. 455 (D.Alaska 1987), also

appears in Appendix B (App. B, at 12a).

2

JURISDICTION

This Court has jurisdiction to review the judgment be-

low by writ of certiorari under 28 U.S.C. § 1257. The

United States Court of Appeals for the Ninth Circuit

entered judgment in this case on December 13, 1989.

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

United States Constitution, Article I, Sec. 8, provides:

The Congress shall have the power to.. . regulate

commerce with foreign nations, and among the sev-

eral states, and with the Indian tribes... .

The following statutory provisions invoived are set

forth in Appendix D:

1. Submerged Lands Act of 1953, 43 U.S.C. § 1811

‘App. D, at 42a).

2. Alaska Statehood Act, 48 U.S.C. note prec. § 21

(App. D, at 43a).

3. Alaska Native Claims Settlement Act, 43 U.S.C.

§§ 1601 et seg. (App. D, at 44a).

4. Alaska National Interest Lands Conservation Act,

43 U.S.C. §§ 1631 et seg. (App. D, at 47a)

Alaska Constitution, Article VIII (App. D, at

52a).

STATEMENT OF THE CASE

A. Concise Statement of the Case

on

This case concerns the way in which the Alaska State-

hood Act, 48 U.S.C. note prec. § 21, handled the land

claims of Alaska Natives. This case affects the land

entitlements of tens of thousands of Alaska Natives. The

problem: here relates to the disposition at the time of

Statehood of lands submerged under navigable waters.

In applying Utah Div. of State Lands v. United States,

482 U.S. 193 (1987) to the question of Congress’ intent

3

in the Alaska Statehood Act, one must take two aspects of

Alaska’s uniqueness into account. One is its size, and the

other is the unique circumstances of its Native peoples,

including the vast array of land claims they had at the

time of statehood. It would have been impossible for Con-

gress to determine Alaska Native claims to submerged

lands on an individual basis at that time. Therefore, the

only appropriate resolution of the internal tension in the

Statehood Act is to infer that Congress intended to as-

sign itself the responsibility of deciding any submerged

land claims of Alaska Natives at the same time as it

would legislate all other Native land claims.

In this test case the title of Ahtna, Inc. (hereafter

“Ahtna’”), an Alaska Native corporation organized un-

der the Alaskan Native Claims Settlement Act -(here-

after “ANCSA”), 438 U.S.C. §§ 1601 et seqg., to certain

submerged lands beneath the Gulkana River granted to

Ahtna’s predecessor in interest by the United States, is

challenged by the State. The question presented is wheth-

er Native claims to all types of Alaskan lands were pro-

tected by Section 4 of the Alaska Statehood Act, so that

submerged lands could subsequently have been validly

granted by the United States to Ahtna under ANCSA.

B. Facts of the Case

Alaska’s unique status as the one state which is a

subcontinent is, as here, often overlooked. The State has

twenty percent of the total land area of the United States,

most of America’s continental shelf, the greatest part of

its coastline, hundreds of millions of acres of wilderness

and untold resources. At the same time its population is

the smallest of the fifty states and is concentrated in a

few urban centers, ENCYCLOPEDIA BRITANNICA, Vol. I

(1976), at 409-417.

Whether Alaska should have become a State in 1959

is perhaps still debatable. Naske, AN INTERPRETIVE HIs-

4

TORY OF ALASKAN STATEHOOD (1973). There is no ques-

tion that it entered the Union with many handicaps. Not

the least was its immense area and the little knowledge

of what that implied for the State’s people and its re-

sources.

On the road to Statehood, extraordinary schemes, dis-

advantageous to the State and all of its various peoples,

were actively considered as a way of creating economic

growth. Rogers, CHANGE IN ALASKA (1970).

Instead, Congress, in Section 6 of the Statehood Act,

sought to sustain the State with a land grant of

102,000,000 acres and certain rights to submerged lands.

It also recognized that not every problem facing Alaska

could be solved at Statehood. Not the least of these in-

volved the status and land claims of Alaska’s Native

peoples, the Eskimos, Indians and Aleuts.

Something special needed to be done to Alaska’s Na-

tives. Native health was suspect. The average age of

death was thirty-five. Native housing was sub-standard.

Native unemployment was among the nation’s worst.

Federal Field Committee, ALASKA NATIVES AND THE

LAND (1968), at 1-84.

Of critical relevance to this case, understanding Na-

tive land rights would have required considering much

of the State for aboriginal title. Cohen, HANDBOOK OF

FEDERAL INDIAN LAW (1982), at 739-46. Because ab-

original title requires knowledge of Native use and oc-

cupancy and is often defined by hunting, fishing and

travel patterns, greater knowledge of Native life than

that which was possessed in 1959 was critical.

Even to this day, the United States Geological Survey

concedes that “Alaska’s lakes are so numerous they are

essentially uncounted.” United States Geological Survey,

ACTIVITIES OF THE ALASKA DISTRICT (Anchorage, 1987).

And it was known that Alaska had “literally thousands

of river and stream systems.” Federal Field Committee,

5

supra, at 330. To further complicate things, at the time

of Statehood, little of the State had been surveyed and by

the mid-1980’s, eighty percent remained unsurveyed.

Alaska Land Use Council, ESTIMATES OF LAND TO BE

SURVEYED (1984).

Instead of extinguishing Native claims, Congress chose

to elect the status quo until it could sort through prob-

lems. Its choice is clearly spelled out in Section 4 of the

Statehood Act, wherein Congress reserved from award to

the State any land “the right of title to which may be

held by” Alaska Natives, and said such lands would re-

main in the control of the United States “until disposed

of under its authority.” Section 4, 48 U.S.C. note prec.

§ 21.

As events took shape and Alaska began to pursue its

claims to the land which had been granted to it under

Statehood Act entitlements, Section 6, 48 U.S.C. note

prec. § 21, the problem deferred became a crisis. Natives

were concerned that their lands were being taken and

their subsistence and culture destroyed by the State;

numerous Native protests encompassing virtually all of

Alaska were lodged with the Department of Interior.

United States v. Atlantic Richfield Co., 485 F.Supp. 1009,

1017 (D.Alaska 1977), aff'd, 612 F.2d 1132 (9th Cir.),

cert. denied sub nom. Inupiat Community of Artic Slope

v. Atlantic Richfield Co., 449 U.S. 888 (1980).

In 1966, Secretary of Interior Stewart Udall froze the

land from further State selection and conveyance pend-

ing a resolution by Congress of the matter. In 1967, the

State chose to force the issue by challenging the land

freeze. In Alaska v. Udall, 420 F.2d 938 (9th Cir.

1969), cert. denied, 397 U.S. 1076 (1970), the Ninth

Circuit upheld the Secretary’s action. The court said

that State selections under Section 6 must be tested for

Native use and occupancy under Section 4. If such Na-

tive uses were found, the Court indicated that they would

defeat State selection for the tract at issue. The court

6

recognized the complexity of the litigation and suggested

that on remand the District Court could stay any fur-

ther proceedings, while Congress sought to resolve the

issue. Case, ALASKA NATIVES AND AMERICAN LAWS

(1984), at 69.

The Ninth Circuit’s decision in Alaska v. Udall, supra,

is directly contrary to its decision in the present case.

Had that decision occurred in another circuit, there

would be presented to this Court the type of conflict be-

tween circuits that is a classic indicator of a grant of

certiorari.

Congressional action eame in 1971 with the passage

of ANCSA. That Act extinguished Native claims to all

lands, including “submerged land,” 43 U.S.C. § 1603(b),

in exchange for a land grant of 43 million acres, includ-

ing land already selected and patented to the State, and a

monetary settlement.

In the following years, Native Regional corporations,

including Ahtna, and Native village corporations, includ-

ing Sta-Keh (Gulkana), were formed. Their responsibil-

ities included implementing ANCSA by making land

selections pursuant to ANCSA. In 1979, the United

States Department of the Interior made an interim con-

veyance of submerged lands to the Sta-Keh Corporation,

the Village corporation for Gulkana, Alaska, organized

pursuant to ANCSA. These are the lands at issue in

this case. In 1980, Sta-Keh and Ahtna merged and

Ahtna succeeded to the village’s entitlement.

Subsequent reports demonstrate a growing fear among

Natives that their ANCSA settlement was in jeopardy.

Berger, VILLAGE JOURNEY (1985). Ahtna had faced this

possibility earlier because, in 1980, the State filed this

suit in the United States District Court for Alaska con-

testing Ahtna’s title and claiming that the land belonged

to it pursuant to the Statehood Act. The basis of federal

jurisdiction was 28 U.S.C. § 1331.

C. Proceedings Below

The case was considered by three federal district

judges between 1980 and 1987. Judge James Fitzgerald

of the District of Alaska guided the parties through five

years of pretrial procedures. During this period, the

parties stipulated to facts involving the Gulkana River’s

condition and history. In 1984, the United States dis-

claimed interest in the case. In 1985, Alaska voluntarily

dismissed its claim to federally-held lands under the upper

reaches of the Gulkana River system. The case was sub-

sequently transferred to Senior Judge James A. von der

Heydt, reassigned to Judge Fitzgerald and then assigned

to visiting Judge Laughlin E. Waters.

In Alaska v. United States, supru, Judge Waters chose

to consider the case on Alaska’s Motion for Summary

Judgment filed in 1988. Judge Waters held that the

State of Alaska received at Statehood title to all lands

submerged beneath navigable waters of the State and

that the stipulated facts established as a matter of law

that the waterbody covering Ahtna’s interim conveyance

was navigable for title purposes. The court’s final judg-

ment voided Ahtna’s interim ANCSA conveyance from

the United States and vested title to the parcel of sub-

merged land in the State of Alaska.

Ahtna appealed. In December, 1989, the Ninth Circuit

affirmed the decision of the District Court. The Court of

Appeals, citing Utah Div. of State Lands v. United

States, 482 U.S. 193 (1987), rejected Ahtna’s argument

about the primacy of Native Section 4 Statehood Act

rights over Alaska’s Section 6 Statehood Act entitle-

ments.

8

REASONS FOR GRANTING THE WRIT

THIS COURT SHOULD DECLARE THAT, CONTRARY

TO THE DECISION BELOW, SUBMERGED LANDS

SUBJECT TO NATIVE CLAIMS WERE OUTSIDE THE

SCOPE OF ALASKA’S STATEHOOD GRANTS AND

THEREBY SELECTABLE BY NATIVES UNDER THE

ALASKA NATIVE CLAIMS SETTLEMENT ACT.

Certiorari must be granted if the rights of Alaska Na-

tives to a full and complete land claims settlement, as

anticipated by the Alaska Statehood Act and guaranteed

by ANCSA, are to be realized. The question at issue

goes directly te the type of settlement Natives had rea-

son to expect. Will it be complete and include all lands

which they are entitled to select, or wil! the State of

Alaska compromise the Natives’ entitlement by stripping

submerged lands from their land selection pool? The

answer to this question involves the rights of every

Alaska Native.

The case was made more complex than necessary, be-

cause for a significant period of time the United States

was a full party in interest. Accordingly, issues of nav-

igability consume much of the record below. In addition,

because of a plain error by the District Court in its reci-

tation of the navigability standard in The Daniel Ball,

77 U.S. (10 Wall.) 557 (1871), it was necessary that the

reasoning and the erroneous citation be corrected. The

Ninth Circuit did so at note 3 to its opinion, Alaska v.

Ahtna, No. 87-3555 (App. A, at la).

With that issue now settled, Ahtna’s underlying con-

tention becomes the final and appropriate focus. In this

regard, it has long been established that Congress can

defeat a State’s submerged land entitlement by reserva-

tion of land for the benefit of Indian and other pub-

lic purposes. See Puyallup Indian Tribe v. Port of Ta-

coma, 717 F.2d 1251 (9th Cir. 1983), cert. denied, 465

U.S. 1049 (1984) (creation of reservation implicitly

ee een

9

transferred title to riverbed to the tribe); Moore v.

United States, 157 F.2d 760 (9th Cir. 1946), cert. de-

nied, 330 U.S. 827 (1947) (treaty awarded control of

riverbed and tidelands to tribe) ; Montana Power Co. v.

Rochester, 127 F.2d 189 (9th Cir. 1942) (lake bed held

in trust for tribe). The only question here is wuaether

Congress so acted in this case.

Ahtna’s analysis necessarily begins with the Alaska

Statehood Act. That Act explicitly grants Alaska the

right to select and receive from the federal government

over 102 million acres of the

. .. public lands of the United States in Alaska which

are vacant, unappropriated, and unreserved at the

time of their selection.

Section 6(b), 48 U.S.C. note prec. § 21. The Act also pro-

vides, very simply:

The Submerged Lands Act of 1953 shall be applicable

to the State of Alaska and the State shall have the

same rights as do existing States thereunder.

Id. at § 6(m).

These provisions are, however, not the end of the story.

The grants of land to Alaska were not unconditional.

Congress required the State of Alaska and its people to

disclaim any interest in or right to federal lands in

Alaska that were not granted,

. . . and to any lands or other property (including

fishing rights), the right or title to which may be

held by any Indians, Eskimos, or Aleuts (hereinafter

called natives) or held by the United States in trust

for said natives;

Id. at § 4, and further required the State and its people

to agree

. . . that all such lands or other property (including

fishing rights), the right or title to which may be

held by said natives or is held by the United States

10

in trust for said natives, shall be and remain under

the absolute jurisdiction and control of the United

States until disposed of under its authority except to

such extent as the Congress has prescribed or may

hereafter prescribe, ....

Id.

It is apparent that Sections 4 and 6 of the Statehood

Act are in some tension. The issue is whether Section 6

should be read as “trumping” Section 4 and confirming

the new State’s rights to all relevant submerged lands,

or whether, as Petitioner strongly believes, the only sen-

sible reading is that Native claims to submerged lands

were to be saved out of the generalized grant and kept

as part of the land claims that Congress would address

at a later date.

Subsequent case law firmly establishes that the statu-

tory disclaimer of Native lands and property is a disquali-

fication of parcels held under Native rights of use and

occupancy from the category of “vacant, unappropriated,

and unreserved” lands subject to Alaska’s largest grant

of selection rights, unless Congress provides for the ex-

tinguishment of Native rights. See Alaska v. Udall, supra;

United States v. Alaska, 197 F.Supp. 834 (D.Alaska

1961) ; Edwardsen v. Morton, 369 F.Supp. 13859 (D.D.C.

1973). Case law also verifies that the State’s land entitle-

ments are subordinate to pre-statehood conveyances and

withdrawals for any valid public purpose. United States

v. Alaska, 423 F.2d 764 (9th Cir.), cert. denied, 400

U.S. 967 (1970); see also United States v. Atlantic Rich-

field Co., supra, 435 F. Supp. at 1017 n.30 (Public Land

Order No. 4582, issued January 12, 1969, was a sus-

pension of Alaska’s land selection entitlements by the fed-

eral executive in order to allow “. .. for the determina-

tion and protection of the rights of the Native Aluets,

Eskimos and Indians of Alaska.’’).

In 1971, in ANCSA, Congress extinguished the Alaska

Natives’ aboriginal property rights and provided for the

11

distribution of more than forty-three milion acres of fed-

eral public lands in Alaska, along with other compensa-

tion, in settlement. Of particular importance to the ques-

tion here, Congress specifically extinguished aboriginal

rights, “if any,” to “submerged land underneath all water

areas, both inland and offshore,” 43 U.S.C. § 1603(b).

The clear implication of this extinguishment is that Con-

gress believed aboriginal rights to submerged lands in

Alaska may have existed and been saved by the State-

hood Act from transfer to the State at that time.

Thus, even though Congress in the Alaska Statehood

Act expressly applied the Submerged Lands Act and

granted Alaska “the same rights as . . . other states there-

under,” any lands that were possibly subject to aboriginal

title would not have vested in the State because Alaska

consented to exclusive United States control and juris-

diction over all potential Native lands

. . until disposed of under its authority except to

such extent at the Congress has prescribed or may

hereafter prescribe ....

Section 4, 48 U.S.C. note prec. § 21.

The clear language of ANCSA, from the statement of

Congressional purposes to the definition of lands available

for Native selection to the description of selection and

conveyance procedures, definitely declares that the en-

titlements of Alaska Native Village Corporations are

superior to the grants to the State of Alaska under

Section 6 of the Statehood Act, including the grant of

submerged lands under Section 6(m). That Congress had

the constitutional authority to prefer Native Village sel-

lections is indisputable; that Congress indeed exercised

that authority is shown by the terms of ANCSA, enacted

in response to the public exigency created by the pressure

for settlement of Native land claims.

An examination of the structure of ANCSA confirms

the conclusion that the Alaska Statehood Act must have

12

been intended to exclude Native Claims to submerged

lands from the grant of such land to the new State.

To begin with, Congress intended ANCSA to fulfill its

“immediate need for fair and just settlement of all claims

by Natives and Native groups of Alaska, based on ab-

original land claims. .. .” 48 U.S.C. § 1601(a). (Em-

phasis added). Congress further intended that

the settlement should be accomplished rapidly, with

certainty, in conformity with the real economic and

social needs of Natives, without litigation, with max-

imum participation by Natives in decisions affecting

their rights and property,....

Id. at § 1602(b).

In order to accomplish the settlement and provide the

Natives the maximum participation in land conveyance

decisions, Congress established a pcol of lands available

for Native selection. The first step was to define the

category of “public lands” for the purposes of ANCSA.

See id., at $ 1602(e):

... “Public lands” means all Federal lands and in-

terests therein located in Alaska except: (1) the

smallest practicable tract ... enclosing land actually

used in connection with the administration of any

Federal installation, and (2) land selections of the

State of Alaska which have been patented or tenta-

tively approved under Section 6(g) of the Alaska

Statehood Act, as amended, or identified for selection

by the State prior to January 17, 1969;....

(Emphasis supplied.) Congress did not exclude sub-

merged lands, navigable or not, from this definition.

Congress then withdrew a portion of the “public lands”

from appropriation under the public lands laws and from

selection under the Statehood Act. Jd. at § 1610(a) (1).

The particular public lands withdrawn are those town-

ships enclosing and surrounding Native villages eligible

for land benefits under ANCSA, id., at § 1610(a) (1)

18

(A)-(C), excluding only National Park lands and lands

withdrawn for national defense purposes. Again, Con-

gress declined to segregate submerged lands, navigable

or not.

In the following section of ANCSA, Congress mandated

that

... the Village Corporation for each Native village

identified pursuant to section 1610 of this title shall

select, in accordance with rules established by the

Secretary, all of the township or townships in which

any part of the village is located, plus an area that

will make the total selection equal to the acreage to

which the village is entitled under section 1613 of

this title. The selection shall be made from lands

withdrawn by section 1610(a) of this title; ....

Id., at § 1611(a)(1) (Emphasis supplied.) Yet, again,

presented with an opportunity to exclude submerged lands

from the pool of lands available to the Village Corpora-

tions, Congress declined to so limit village selection rights.

To be sure, Congress refers to lands covered by water

elsewhere, as in § 1611(a) (2). There, however, Congress

describes tracts ‘“‘separated by bodies of water or by lands

which are unavailable for selection,” and provides

... [t]hat the Secretary in his discretion and upon

the request of the concerned Village Corporation, may

waive the whole section requirement where—

(A) (i) a portion of available public iands of a

section is separated from other available public

lands in the same section by lands unavailable

for selection or by a meanderable body of

WEGGRS ..+ «+

Id. (Emphasis supplied.) The clear implication of this

and similar language elsewhere in ANCSA is that the

category of lands “unavailable for selection” does not

include lands beneath bodies of water, meanderable or not.

14

Nothing in ANCSA dispels the inference that Village

Corporations are entitled to select submerged lands

whether or not the state has inchoate rights thereto. With

the exception of the clear statement in 48 U.S.C.

$ 1603(a) that prior patents and tentative approvals of

state selections under section 6(g) of the Statehood Act

shall be retroactively deemed to extinguish aboriginal

title, wherever in ANCSA Congress refers to the selection

rights of the state, one finds nearby a statement that

those rights are subject to the selection rights of Natives

under ANCSA. For example, 43 U.S.C. § 1616 allows the

State and the Native Regional Corporations to initially

identify lands “desired to be selected,”

. Provided, That selection of lands by Village

Corporations pursuant to section 1611 of this title

shall not be affected by such withdrawals and such

lands selected may be patented and such rights

granted as authorized by this chapter... .

Id., at § 1616(d) (2) (E) (Emphasis in original.)

Even the subsequent Alaska National Interest Lands

Conservation Act, Pub. L. No. 96-487, 94 Stat. 2371,

expressly provides:

All conveyances to the State under section 6 of the

Alaska Statehood Act, this Act, or any other law,

shall be subject to valid existing rights, to Native

selection rights under the Alaska Native Claims Set-

tlement Act [43 U.S.C. 1601 et seq.], and to any

right-of-way or easement reserved for or appropri-

ated by the United States prior to selection of the

underlying lands by the State of Alaska.

43 U.S.C. § 1635(1) (1).

Notwithstanding, in its Opinion below the Ninth Cir-

cuit held that the subsequently decided Utah Div. of State

Lands v. United States, supra, defeated Ahtna’s argu-

ment because Congress did not “clearly” intend to ex-

clude Native lands, nor had it acted affirmatively in ex-

cluding the lands when it passed the Statehood Act.

15

The Ninth Circuit erred in its analysis. First, it abso-

lutely failed to take into account the uncharted nature

of much of Alaska’s land. Congress can only identify

that which is known to exist. “Uncounted lakes” are

nothing less, and coupled with “literally thousands of

river and stream systems,” the resulting legislation would

have required enormously long listings. Moreover, Utah,

the test state, is one of the most arid in the nation.

Alaska’s hydrology and geography demand a different

application of Utah Div. of State Lands v. United States,

supra.

Second, as the Ninth Circuit understood in 1968 in

Alaska v. Udall, swpra, these listings would have had to

be individually tested one by one for aboriginal title if

they were to be excluded. Under the Ninth Circuit’s latest

standard, the legislation \vould have had to fill volumes in

order for Congress to make findings as to each piece of

submerged land that might be subject to Native claims.

That, however, was not what Congress chose. Instead, it

opted for deferral.

In fact, it could not have been clearer when in the

report to accompany the Statehood Act, over three dec-

ades ago, Congress in reference to Section 4 stated that:

Finally, the section provides that no attempt will be

made to deal with the legal merits of the indigenous

rights but to leave the matter in status quo for either

future legislative action or judicial determination.

Reported in Vol. I, Alaska Statutes, 1962 (1988 ed.) at

pp. 147, 168. (Emphasis supplied.) This strongly indi-

cates Congress’ intent at the time of Statehood to leave

everything that might be the subject of a Native claim

to later resolution.

Thus, it is absolutely clear that Congress at the time

of Statehood intended a blanket exemption for any sub-

merged land issue or other issue relating to Native claims

pending future action. It is harder to conceive of a

more unambiguous and affirmative reservation. The

16

Ninth Circuit got it right in Alaska v. Udall and this

Court denied certiorari. This time the Ninth Circuit has

gotten it wrong, and this Court needs to step in.

The sum total of Congress’ action leads to the con-

clusion that the United States at the time of Statehood

retained in federal ownership all federal lands which may

have been subject to aboriginal titles in order that Con-

gress could resolve Native land rights later on. The reso-

lution occurred in ANCSA, a statute passed for the ben-

efit of the Alaska Natives, see Alaska Public Easement

Defense Fund v. Andrus, 485 F. Supp. 664, 671 (D.

Alaska 1977), in response to the public exigency arising

from the possibility of aboriginal claims to virtually all

of Alaska. United States v. Atlantic Richfield Co., supra.

The Congressional scheme establishes a pool of federal

lands available for Native selection with specific and

express exclusions. Submerged lands, whether navigable

or not, do not appear among those exclusions. The pro-

visions which do refer to submerged lands repeatedly and

consistently imply that Village Corporations may obtain

title thereto, while other provisions expressly declare that

the rights of Alaska under the Statehood Act are subject

to the selection rights of the villages. Thus, under the

established law of federal land conveyances, submerged

lands must be available for Native selection, so that

justice may be complete for the Alaska Natives and so

that their land claims settlement be kept intact. This

in turn means that the conveyance of the land by the

United States to Sta-Keh in 1979 was valid and that the

courts below were incorrect in ruling for the State of

Alaska.

The decisions below have left Alaska’s Natives in an in-

equitable position. The Ninth Circuit’s application of

Utah Div. of State Lands v. United States, to the Alaska

Statehood Act failed to take into account Alaska’s unique

size and the interaction of that phenomenon with Con-

17

gress’ clear decision to put off resolution of Alaskan Na-

tives’ land claims until a later date. Failure to reverse

the Ninth Circuit’s error will adversely and unjustly af-

fect thousands of Alaskan Natives. This Court should

grant certicrari and reverse the unjust and incorrect

result reached below.

CONCLUSION

For the reasons stated in this petition, this Court should

issue a writ of certiorari.

Respectfully submitted,

ROBERT M. GOLDBERG

ROBERT M. GOLDBERG & ASSOCIATES

1107 West Seventh Avenue

Of Counsel Anchorage, Alaska 99501

PETER EDELMAN (907) 277-8561

DANIEL G. GROVE Counsel of Record

KECK, MAHIN & CATE

1201 New York Avenue, N.W.

Penthouse Suite

Washington, D.C. 20005

(202) 789-3400

March 13, 1990

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APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 87-3555

D.C. No. A-80-359-CIV

STATE OF ALASKA,

Plaintiff-A ppellee.

Vv.

AHTNA, INC.; and STA-KEH CORPORATION,

Defendants-A ppellants,

and

UNITED STATES OF AMERICA;

WILLIAM CLARK, Secretary of the Interior;

ROBERT PENFOLD, Alaska State Director,

Bureau of Land Management,

Defendants-A ppellees.

Appeal from the United States District Court

for the District of Alaska

Laughlin E. Water, District Judge, Presiding

Argued and Submitted

August 8, 1989—Anchorage, Alaska

Filed December 13, 1989

os

Before: Diarmuid F. O’Scannlain, Edward Leavy and

Stephen S. Trott, Circuit Judges.

Opinion by Judge Leavy

COUNSEL

Robert M. Goldberg, Robert M. Goldberg & Associates,

Anchorage, Alaska, for the defendants-appellants.

Kenneth C. Powers, Assistant Attorney General, An-

chorage, Alaska, for the plaintiff-appellee.

Blake Watson, Department of Justice, Washington,

D.C., for the defendants-appellees.

David C. Crosby, Council & Crosby, Juneau, Alaska,

for the amicus.

Geoffrey Y. Parker, Anchorage, Alaska; Michael W.

Sewright. Burr, Pease & Kurtz, Anchorage, Alaska, for

the amicus.

Jan S. Stevens, Supervising Deputy Attorney General,

Sacramento, California, for the amicus.

OPINION

LEAVY, Circuit Judge:

OVERVIEW

The Bureau of Land Management (“BLM”) conveyed

the lands underlying 30 miles of the lower Gulkana River

Ahtna. Ine. (“‘Ahtna”), a native regional ccrporation

under the Alaska Native Claims Settlement Act

(“ANCSA”). 43 U.S.C.A. $§ 1601-1629(e) (West 1986

& Supp. 1989). The district court set aside the convey-

ance, holding that that segment of the Gulkana was

en A a inna eae

3a

navigable when Alaska became a State in 1959, and

therefore, the underlying lands were the property of

Alaska, not subject to conveyance by the federal govern-

ment. Ahtna appeals. We affirm.

FACTS AND PROCEEDINGS

The facts are not disputed. The Gulkana River Sys-

tem (“the River” or “the Gulkana’’) is composed of clear

water streams located in southcentral Alaska. The River

flows through diverse lands containing tundra, spruce

forests, and lakes. It displaces 3,600 to 4,800 cubic feet

per second from May to September, decreasing to 200 to

300 cubic feet per second from November through April,

when the River lies frozen. The parties stipulate that

the physical characteristics of the River, such as water

volume, gradients, geology, and general weather, are the

same as they were when Alaska became a State in 1959.

The part of the River at issue in this case is its lower

30 miles (“the lower Gulkana’’), extending from Sour-

dough Campground (River mile 33.5) to the River’s

mouth at the Copper River (mile 0). The shallowest

part of the River, at mile 3.75, is normally a foot and a

half deep, diminishing to a foot during low-flow season.

On average, however, the River in these lower 30 miles is

125-150 feet wide and 3 feet deep.

The parties agree that today, between mile 3.75 and

mile 30, and between mile 0 and mile 3.5, the River is

customarily used, or is susceptible to use, by the follow-

ing types of water-craft: (1) flat or round-bottom alu-

minum or fiberglass powerboats 16 to 24 feet long by 4

to 10 feet wide, capable of carrying loads between 900

and 2,000 lbs.; (2) inflatable rafts between 12 and 15.5

feet long by 4 to 7 feet. wide, with a capacity of 1,250 to

2,000 lbs.; and (3) square-sterned motorized freight

canoes and double-ended paddle canoes 15 to 20 feet long,

capable of carrying loads of 500 to 900 lbs.

4a

In the years immediately preceding Alaska’s admis-

sion into the Union, from the 1940’s to 1959, hunters and

fishermen travelled the River in powered 16 to 24-foot

fiberglass and aluminum watercraft. The watercraft

had a load capacity of approximately 1,000 lbs.

Most of the use of the River is recreational. On a

typical busy weekend day in June or July, 20 boats will

use the lower 30 miles of the River, carrying approxi-

mately 60 people.

Since the 1970’s it has been possible to take guided

fishing and sightseeing trips on the River. The industry

employs watercraft of the type stipulated to be cus-

tomarily used in the Gulkana, that is, 20 to 24-foot long

aluminum powerboats and 12 to 15.5 foot long inflatable

rafts. Today, the industry employs over 400 people.

Rafts usually carry five passengers and one guide, pro-

viding for a load often in excess of 1,000 lbs. Average

fare is $150.00 per passenger.

On May 16, 1979, the BLM made an administrative

decision finding that (1) the lower Gulkana River was

not navigable, and (2) that the underlying submerged

lands were federally-owned property subject to convey-

ance to village corporations under ANCSA.' Alaska ».

United States, 662 F. Supp. 455, 456-57 (D. Alaska

1987). The BLM thereafter made an interim conveyance

of the submerged lands of the lower Gulkana to Ahtna,

a native regional corporation organized under ANCSA.°

1 ANCSA was designed to provide a fair and just settlement of the

claims by Alaska natives, 43 U.S.C. § 1601(a), following ANCSA’s

extention of aboriginal titles. 43 U.S.C. § 1603. To accomplish the

settlement ANCSA withdrew certain lands from appropriation under

the public lands laws and the Statehood Act, and made these lands

available for selection to Alaskan village corporations. 43 U.S.C.

§§ 1610, 1611. Conveyance of these lands to the corporations fol-

lowed selection. 43 U.S.C. § 1613.

2 The interim conveyance was made to Sta-Keh Corporation, a

village corporation. Sta-Keh subsequently merged with Ahtna, a

regional corporation, making Ahtna the title-holder.

5a

The State of Alaska challenged the conveyance to

Ahtna. States generally hold title to the lands under-

lying navigable rivers within their boundaries. Utah v.

United States, 482 U.S. 1938, 196 (1987). Alaska main-

tained before the district court that the lower Gulkana

was navigable, that title to the underlying lands belonged

to Alaska, and that the BLM’s conveyance was therefore

void. Alaska v. United States, 662 F. Supp. at 456.

The parties stipulated to all the relevant facts.

The district court granted summary judgment in favor

of Alaska. The court concluded that in most cases, in-

cluding this one, a river functions as a “highway for

commerce,” and therefore is navigable, if it is capable

of transporting people or goods. Jd. at 466. Since the

stipulated facts showed that the lower Gulkana has been

and is used for transport of goods and people, the court

concluded the portions of the River here at issue were

navigable. Id. at 467-68.

Ahtna appeals. The United States, which before the

district court endorsed the BLM’s determinations of non-

navigability, now argues as an appellee that the lower

Gulkana is navigable but for reasons other than those

stated by the district court. Amicus Arctic Slope Re-

gional Corporation joins Ahtna in support of a deter-

mination of non-navigability. Amici, affiliates of the Na-

tional Wildlife Federation, outdoor sports organizations,

and several States, join the State of Alaska in support

of a decision of navigability.

STANDARD OF REVIEW

The facts are undisputed. We review de novo the

granting of summary judgment in favor of Alaska.

Gabrielson v. Montgomery Ward & Co., 785 F.2d 762,

764 (9th Cir. 1986).

sa

DISCUSSION

1. The Navigability Determination

The several States ordinarily hold title to the lands

underlying navigable rivers within their boundaries. Two

sources of authority justify this rule. One is the “equal

footing doctrine,” which guarantees to newly-admitted

States the same rights enjoyed by the original thirteen

States and other previously-admitted States. Utah v.

United States, 482 U.S. at 196; Pollard’s Lessee v. Hagan,

44 U.S. (8 How.) 212, 228-29 (1845). One of these

rights is title ownership to the lands underlying navigable

rivers. Utah v. United States, 482 U.S. at 196; see also

United States v. Alaska, 437 F.2d 1081, 1084 (9th Cir.

1971).

The second source of authority for the rule is the

Submerged Lands Act of 1953. By that act, Congress

vested in the States “title to and ownership of the lands

beneath navigable waters within the boundaries of the

respective States.” 43 U.S.C. §1311l(a) (1982). Con-

gress explicitly provided for this rule to apply to Alaska

when Alaska became a State in 1959. 48 U.S.C. Chapter

2 (“the Statehood Act”) note 6(m) prec. sec. 21 (1982).

Thus, the dispositive issue before the district court was

whether the lower thirty miles of the Gulkana were nav-

igable. If navigable, title to the submerged lands passed

to Alaska at statehood, and the BLM was without power

to convey the lands to Ahtna. If non-navigable, the lands

remained federal and available for conveyance to Ahtna

under ANCSA.

Whether a river is navigable is a federal question.

United States v. Holt State Bank, 270 U.S. 49, 55-56

(1926). The relevant navigability test states as follows:

Those rivers must be regarded as public navigable

rivers in law which are navigable in fact. And they

are navigable in fact when they are used, or are sus-

oe

“Ta

ceptible of being used, in their ordinary condition,

as highways for commerce, over which trade and

travel are or may be conducted in the customary

modes of trade and travel on water.

The Daniel Ball, 77 U.S. (19 Wall.) 557, 563 (1870) ;

see, e.g., Oregon v. Riverfront Protection Ass’n, 672 F.2d

792, 794 (9th Cir. 1982).* Although the river must be

navigable at the time of statehood, United States v. Utah,

283 U.S. 64, 75 (1931) (footnote omitted), this only

means that, at the time of statehood, regardless of the

actual use of the river, the river must have been suscepti-

ble to use as a highway for commerce. I/d. at 83.

A river’s use “need not be without difficulty, extensive,

or long and continuous” for the river to be a highway for

commerce. Riverfront Protection, 672 F.2d at 795 (por-

tion of the McKenzie River found navigable when used to

transport “thousands of logs,’’ even though shallow areas

and sand bars made the transport difficult). It is not

essential that the river be used for transportation of

water-borne freight by a carrier whose purpose is to make

money from the transportation. Utah v. United States,

403 U.S. 9, 11 (1971) (ranchers transporting own cattle

from mainland to islands used the rivers as a highway).

% The parties agree the district court misquoted the Daniel Ball

Navigability test, substituting “trade or travel’ for “trade and

travel.” Alaska v. United States, 662 F. Supp. at 463. The district

court reasoned from this disjunctive that there was an “implicit

equation between routes for travel and routes for conducting com-

merce,” id. at 463-64, and that “‘the travel requirement is indeed the

essence of the federal test.”” Jd. at 464 (quotation omitted). How-

ever, the Supreme Court has often stated that a river’s navigability

depends on the river’s susceptibility to useful commerce. See, e.g.,

Holt Bank, 270 U.S. at 56 (“channel for useful commerce”) ; United

States v. Utah, 283 U.S. 64, 82 (1931) (“highway of commerce”).

We therefore do not agree the travel requirement is the essence of

the federal test, and our decision to affirm the district court rests on

our analysis of the Daniel Bal) test as including an element of

commerce.

82

Indeed, it is not even necessary that commerce be in fact

conducted: “The question of .. . susceptibility in the

ordinary condition of the rivers, rather than of the mere

manner of extent of actual use, is the crucial ques-

tion. ... The extent of existing commerce is not the

test.” United States v. Utah, 283 U.S. at 82.

Ahtna and amicus argue that the principal uses of the

Gulkana have always been recreational, and that recrea-

tional uses do not support a finding of navigability. This

argument is unpersuasive. The test is whether the river

was susceptible of being used as a highway for commerce

at statehood, not whether it was actually so used.

Under the facts of this case, we think the present use

of the lower Gulkana is commercial and provides con-

clusive evidence of the lower Gulkana’s susceptibility for

commercial use at statehood. The parties agree that in

1970 guided fishing and sightseeing trips began to be

conducted with watercraft customary for that time period.

A substantial industry of such transportation for profit

emerged in the lower Gulkana, which industry today

employs approximately 400 people. To deny that this

use of the River is commercial because it relates to the

recreation industry is to employ too narrow a view of

commercial activity. “|NJavigability is a flexible con-

cept and ‘[elach application of the [Daniel Ball test]

. is apt to uncover variations and refinements which

require further elaboration.’” Alaska v. United States,

754 F.2d 851, 854 (9th Cir. 1985) (quoting United States

v. Appalachian Elec. Power Co., 311 U.S. 377, 406

(1940) ).

Our conclusion that the present commercial use of the

lower Gulkana provides conclusive evidence of its suscep-

tibility for commerce at statehood follows from the facts

stipulated by the parties. The parties stipulated that the

River’s physical characteristics have remained unchanged

since statehood. They also agreed that the watercraft

customary for the River’s use at statehood included pow-

9a

ered boats with a load capacity of approximately 1,000

lbs. We note that-the rafts employed today in the guided

and fishing industry have a maximum load capacity of

2,000 lbs. We therefore think that the watercraft custo-

mary at statehood could have at least supported com-

mercial activity of the type carried on today, with minor

modifications due to a more limited load capacity and

rudimentary technology. We therefore conclude that the

lower Gulkana was susceptible for use as a highway for

commerce at statehood.

II. Reservation of the Riverbed at Statehood

Assuming the lower Gulkana was navigable at state-

hood, Ahtna argues on appeal that title to the underlying

lands did not pass to Alaska because Congress intended to

reserve title to the submerged lands of the lower Gulkana

for the United States at the time Alaska became a State.

Ahtna’s argument is based on note 4 of the Statehood

Act, which provides:

As a compact with the United States said State

[Alaska] and its people do agree and declare that

they forever disclaim all right and title to any lands

or other property not granted or confirmed to the

State ... under the authority of this Act, the right

or title to which is held by the Unted States .. ., and

to any lands or other property (including fishing

rights), the right or title to which may be held by

any Indians, Eskimos, or Aleuts (hereinafter called

natives) or held by the United States in trust for

said natives ....

48 U.S.C. note 4 prec. sec. 21 (1982) (emphasis added).

According to Ahtna, note 4 meant to reserve the lands

underlying Alaska’s navigable rivers because ANCSA

later provided that Alaskan natives may have held title to

those lands, bringing them within the reservation of note

4. See 43 U.S.C. § 1603(b) (extinguishing “[a]ll abor-

10a

iginal titles, if any, and claims of aboriginal title in

Alaska based on use and occupancy, including submerged

land underneath all water areas... .”) (emphasis added).

Alaska and amici first contend that Ahtna’s argument

is not properly before this court because it was raised

for the first time on appeal. We discuss the merits of

Ahtna’s argument because the issue is purely legal and

the facts are fully developed. See Romain v. Shear, 799

F.2d 1416, 1419 (9th Cir. 1986).

Ahtna’s argument fails. The federal government has

the power to convey a Territory’s lands underlying nav-

igable waters prior to that Territory becoming a State,

thereby defeating the future State’s right to the lands.

Utah v. United States, 482 U.S. at 197. The Government

could probably likewise reserve unto itself the same lands

prior to statehood. See id. at 201. Nevertheless, “[g]iven

the [federal government’s longstanding policy of holding

land under navigable waters for the ultimate benefit of

the States, . .. [the Supreme Court will] not infer an

intent to defeat a State’s equal footing entitlement from

the mere act of reservation itself.” Jd. at 202. The

party seeking to defeat the State’s interest has to show

that (1) Congress clearly intended to include land under

navigable waters within the federal reservation, and (2)

Congress affirmatively intended to defeat the future

State’s title to such land. 7d.

In Utah v. United States, the Court decided whether

the federal government had effectively reserved for itself

the bed of the Utah Lake by laws enacted prior to state-

hood. To meet the first prong of the test, the Court re-

quired clear reference to the particular lands in the re-

spective legislation. The court noted that “ ‘Congress has

never undertaken by general laws to dispose of land

under navigable waters.” Jd. at 203 (quoting Shively v.

Bowlby, 152 U.S. 1, 48 (1894)). The bed of Utah Lake

was therefore not reserved by a law purporting to re-

serve “ ‘all the lands which may hereafter be designated

ila

or selected ... for sites for reservoirs.’” Jd. at 198

(quoting the Sundry Appropriations Act of 1888, 25 Stat.

505). The law’s generality was not cured by the fact

that, prior to Utah’s statehood and pursuant to the reser-

vation law, a United States Geological Survey reported

the reservation of the “site of the Utah Lake” pursuant

to the reservation law, but not the bed of the lake.* Id.

at 199, 206-07. The Court concluded that other references

to the bed of the lake did not unambiguously reflect con-

gressional intent to reserve the bed of the lake, and so

failed to definitely declare “or otherwise [make] very

plain” Congress’ intention to reserve title to the sub-

merged lands. /d. at 207 (quotation omitted).

Ahtna contends that note 4 reserves title to the lands

underlying Alaska’s navigable rivers to the United States.

We are not persuaded that such interpretation of note 4

could survive the first prong of the test articulated in

Utah v. United States. Note 4 not only omits specific

reference to the lands underlying the lower Gulkana, it

also omits reference to any submerged lands. Thus, note

4 embodies too general a statement from which we could

“infer an intent to defeat [Alaska’s] equal footing en-

titlement.” Utah v. United States, 482 U.S. at 202. We

need not reach the issue of whether note 4 would survive

the second prong of the test. See id.

CONCLUSION

We will not infer congressional intent to deprive Alaska

of its title to submerged lands of navigable rivers within

its boundaries based on the geenral language contained

in note 4 of the Statehood Act. Because the lower Gul-

kana was susceptible for use as a highway of commerce

at statehood, the lower Gulkana was navigable, and title

to its submerged lands vested in Alaska at statehood.

AFFIRMED.

4 The reservation law was subsequently repealed, but the repeal

did not affect lands already selected, such as the site of Utah Lake.

Utah v. United States, 482 U.S. at 199.

12a

APPENDIX B

UNITED STATES DISTRICT COURT

D. ALASKA

No. A80-359 Civil (Gulkana River)

STATE OF ALASKA,

Plaintiff,

V.

UNITED STATES OF AMERICA, DONALD HODEL, Secretary

of the Interior; ROBERT PENFoRD, Alaska State Direc-

tor, Bureau of Land Management; AHTNA, INC., and

STA-KEH CORPORATION,

Defendants.

April 22, 1987

Harold M. Brown, Atty. Gen., Micheal W. Sewright,

Kenneth C. Powers, Asst. Attys. Gen., Dept. of Law,

Office of the Atty. Gen., Anchorage, Alaska, for State of

Alaska.

Larry Martin Corcoran, Dept. of Justice, Land and

Naiural Resources Div., General Litigation Section, Ben-

jamin Franklin Station, Washington, D.C., for defendant

US.

Robert M. Goldberg, Robert M. Goldberg and Associ-

ates, Anchorage, Alaska, for defendant Ahtna, Ine.

David C. Crosby, Wickwire, Lewis, Goldmark & Schorr,

Seattle, Wash., Baily & Mason, Anchorage, Alaska, for

amicus curiae Arctic Slope Regional Corp.

13a

SECOND AMENDED ORDER RE PLAINTIFF’S MO-

TION FOR SUMMARY JUDGMENT AND UNITED

STATES’ CROSS MOTION FOR JUDGMENT ON

THE PLEADINGS

LAUGHLIN E. WATERS, Senior District Judge.

This case raises difficult questions concerning applica-

tion of the well settled principle that a state is vested

with title to the beds underlying navigable waterbodies

at the time the state enters the Union. The State of

Alaska has filed this suit in part for the purpose of

obtaining review pursuant to 43 U.S.C. § 1631 of a de-

termination by the Bureau of Land Management that

the lower 30 miles of the Gulkana River is a non-naviga-

ble waterway belonging to the United States.’ Alaska

claims that this portion of the Gulkana is navigable and

that therefore title to the riverbed has at all times be-

longed to the State of Alaska. Ahtna, Inc.,? to whom the

United States transferred purported title to the lower

80 miles of the Gulkana River, is also named by Alaska

as a defendant. Presently pending before the court is

Alaska’s motion for summary judgment and the United

States’ cross motion for judgment on the pleadings. For

the reasons set forth below, the court now grants Alaska’s

motion and denies the United States’ cross motion.

1 This court has jurisdiction over this suit pursuant to 28 U.S.C.

§ 13831. Oregon v. Riverfront Protection Ass’n., 672 F.2d 792, 794

(9th Cir. 1982). See infra note 6.

2 As is discussed infra, Ahtna, Inc. is a regional corporation or-

ganized under the Alaska Native Claims Settlement Act (ANCSA),

43 U.S.C. § 1601 et seq., and occupies the area in which the disputed

portion of the Gulkana River is located. Sta-Keh Corporation, a

village corporation organized under ANCSA, was also a transferee

of the title conveyed by the United States and is also named as a

defendant in this suit. However, Sta-Keh Corporation and Ahtna,

Inc. have since merged, with Ahtna, Inc. being the surviving corpora-

tion and successor to interest to Sta-Keh Corporation. Answer of

Ahtna, Inc., paragraph VII.

l4a

Background

The Alaska Native Claims Settlement Act (“ANCSA”)

permits Native Alaskans to select through regional and

village native corporations approximately 44 million acres

of public land in Alaska in settlement of aboriginal land

claims they had to lands held by the United States at the

time Alaska ertered the Union. See 43 U.S.C. § 1601

et seg. The Alaska Statehood Act, 48 U.S.C. note prec.

§ 21, permits the State of Alaska to select approximately

103.5 million acres of public land in Alaska. However,

under the “equal footing doctrine,” see Pollard’s Lessee v.

Hagan, 44 U.S. (8 How.) 212, 229, 11 L.Ed. 565 (1845),

and its codification in the Submerged Lands Act of 1953,

43 U.S.C. § 1301 et seq., title to the beds of navigable

inland waterbodies passes from the United States to the

state when the state enters the Union. Utah v. United

States, 403 U.S. 9, 10, 91 S.Ct. 1775, 1776, 29 L.Ed.2d

279 (1971); Bonelli Cattle Co. v. Arizona, 414 U.S. 313,

324 n. 19, 94 S.Ct. 517, 525 n. 19, 88 L.Ed.2d 526 (1973),

overruled on other grounds, Oregon v. Corvallis Sand &

Gravel Co., 429 U.S. 363, 97 S.Ct. 582, 50 L.Ed.2d 550

(1977); Oregon v. Riverfront Protection Ass’n., 672

F.2d 792, 794 (9th Cir.1982); Alaska v. United States,

754 F.2d 851, 853 n. 3 (9th Cir.), cert. denied, 474 U.S.

968, 106 S.Ct. 333, 88 L.Ed.2d 317 (1985). Because title

to the beds of navigable waterbodies passed automatically

to Alaska at the time of statehood, they are neither avail-

able for selection nor chargeable to either the ANCSA

or the Alaska Statehood Act entitlements. See generally,

43 U.S.C. $$ 1602(e), 1610-1611, 1615, 1631 and 48

U.S.C. prec. 21, Sec. 6(a) and (b). Conversely, the beds

of non-navigable waterbodies are available for selection

and, if selected, are chargeable against the recipient’s

entitlement. The United States Department of Interior

is responsible for processing the State and native corpora-

tion selections and for transferring title to them. See 43

U.S.C. §§ 1611, 1613 and 48 U.S.C. prec. 21, Sec. 6(a)

and (g). In processing native corporation selections, the

15a

Bureau of Land Management (‘““‘BLM’’) of the Depart-

ment of Interior makes administrative determinations of

navigability. 43 U.S.C. § 1631(b) ; 43 C.F.R. 2650.5-1 (b)

(1983); see Alaska v. United States, 754 F.2d 851, 852

n. 2 (9th Cir.), cert. denied, 474 U.S. 968, 106 S.Ct. 333,

88 L.Ed.2d 317 (1985).

On May 16, 1979, BLM issued an administrative de-

cision finding the lower 30 miles of the Gulkana River

system non-navigable. On June 29, 1979, the United

States made an interim conveyance pursuant to ANCSA

of the same lower 30 miles of the Gulkana River system

to Ahtna, Inc., an ANCSA regional corporation. In re-

sponse, Alaska, on November 25, 1980, filed the instant

suit.

In its pleadings, Alaska alleged that the very possibility

the United States might declare the portions of the Gul-

kana River not conveyed to Ahtna, Inc. non-navigable

created a cloud over Alaska’s title to those portions of

the river. As a consequence, in addition to specifically

challenging the conveyance of the lower 30 miles of the

Gulkana to Ahtna, Inc., Alaska sought by its suit to quiet

title in the entirety of the Gulkana River System. Alaska

also sought a declaratory judgment*, pursuant to 28

U.S.C. § 2201, concerning (1) the navigability of the

Gulkana River System and (2) the relevancy of the cri-

teria applied by BLM in making navigability determina-

tions while processing claims under ANCSA to Gulkana

River System lands. Alaska has since represented to this

court that in the event summary judgment was entered

in its favor on the quiet title portion of the suit, Alaska

3 Alaska also seeks a permanent injunction prohibiting the federal

defendants from “patenting, conveying, transferring title to, or

otherwise disposing of any land, or interest in land, underlying any

part of the Gulkana and connected lakes.” Second Amended Com-

plaint, paragraph 5, at p. 12. Alaska has not attempted to demon-

strate however that issuance of an injunction is necessary to pro-

tect or enforce its substantive legal rights.

l6a

would not elect to pursue the portion of the suit seeking

the foregoing declaratory judgment‘. Alaska’s Reply to

United States’ Opposition to Alaska’s Motion for Re-

consideration at p. 7; Alaska’s Memorandum in Support

of Motion for Reconsideration at p. 6.

On June 27, 1984, the United States disclaimed pur-

suant to 28 U.S.C. § 2409a(d) ownership interest in all

but the upper reaches of the Gulkana River System. This

disclaimer was confirmed by the court on September 24,

1984. On March 1, 1985, the State of Alaska moved to

voluntarily dismiss with prejudice any claim to the re-

maining upper reaches of the Gulkana River System

in which the United States still claimed an interest.® This

motion was granted on March 4, 1985. As a consequence

of the United States’ disclaimer and Alaska’s voluntary

dismissal, no concrete dispute remains between the United

States and Alaska as to the ownership of the Gulkana

River System and the court is without jurisdiction over

the United States with respect to the quiet title portion of

Alaska’s suit. See 28 U.S.C. § 2409a(d). However, the

Court retains jurisdiction over the United States pur-

suant to 43 U.S.C. § 1631 to review the Secretary of In-

terior’s determination that the lower 30 miles of the

Gulkana River is non-navigable.* See McIntyre v. United

4 Because the declaratory judgment portion of Alaska’s suit is

not before the Court on these motions, the Court expresses no

opinion as to the merits of the request for a declaratory judgment.

5 Alaska had previously withdrawn its claim to a very small por-

tion of the Gulkana. See ..laska’s Withdrawal vf Claim, filed Feb-

ruary 14, 1986.

® The belated suggestion of the United States that this Court lost

all jurisdiction over the United States as a consequence of the dis-

claimer is without merit. 28 U.S.C. § 2409a(d) provides that juris-

dictiun of the District Court ‘“‘shall cease” if the United States

disclaims interest in the property at issue “unless [the court] has

jurisdiction of the civil action or suit on ground other than and

independent of the authority conferred by [28 U.S.C. § 1346(f) (the

statutory grant of jurisdiction over quiet title actions involving

17a

States, 490 F.Supp. 880 (D.Alaska 1980). Moreover, be-

cause Ahtna, Inc. did not join in the United States’ dis-

claimer, a live controversy remains between Alaska and

Ahtna, Inc. as to title to the lower 30 miles of the Gul-

kana River System. Ahtna, Inc. has joined in the United

States’ cross motion for judgment on the pleadings.

Ahtna, Ine.’s Opposition to Motion for Summary Judg-

ment at pp. 1-2 (filed June 17, 1983).

Conveyance by BLM of a parcel of submerged land to

a Native Corporation is subject to de novo review in Dis-

trict Court. See 43 U.S.C. § 1631(a). The execution of

an interim conveyance by BLM conveying a parcel of

submerged land is the “final agency action” with respect

to a decision by the Secretary of Interior that the water

covering the parcel is not navigable. 43 U.S.C. § 1631 (b).

property in which the United States claims an interest) ].’’ Here

the Court has federal question jurisdiction. arising under 43 U.S.C.

§ 1631 and that jurisdiction is independent of the authority con-

ferred by 28 U.S.C. § 1346(f). As a consequence, the disclaimer

filed by the United States pursuant to § 2409a(d) does not, by the

terms of § 2409a(d), divest this Court of jurisdiction over the

United States. It should also be noted that the disclaimer of the

United States in no way renders moot Alaska’s suit against the

U.S. By making its disclaimer the United States did not concede

the navigability of the lower 30 miles of the Gulikana River, see

“Stipulation Concerning Extent of Gulkana River System Litiga-

tion,” filed May 2, 1984, nor is there any evidence that BLM has

attempted to rescind or disavow its determination that the Gulkana

is not navigable.

The jurisdiction of this court over Ahtna, Inc. has not been

challenged. The same federal question—that of the navigability of

the Gulkana River—is raised by Alaska against both Ahtna, Inc.

and the federal defendants. Wholly apart from jurisdiction pursu-

ant to 43 U.S.C. § 1631, federal question jurisdiction has been

found to exist in title navigability suits. See, e.g., United States

v. Oregon, 295 U.S. 1, 14, 55 S.Ct. 610, 615, 79 L.Ed. 1267 (1935).

This is true even where title to the river bed is not claimed by the

federal government, but merely descends from purported fderal

title. Oregon v. Riverfront Protection Ass’n., 672 F.2d 792, 794

(9th Cir. 1982). Thus, this court unquestionably has jurisdiction

over Ahtna, Inc.

18a

Discussion

As indicated above, resolution of the parties’ claims

turns on the question of whether the contested 30 miles

of the Gulkana River System are “navigable” as that

term is defined under federal law. The federal test for

navigability was first articulated in The Daniel Ball’,

77 U.S. (Wall.) 557, 563, 19 L.Ed. 999 (1870):

Those rivers must be regarded as public navigable |

rivers in law which are navigable in fact. And they |

are navigable in fact when they are used, or are

susceptible of being used, in their ordinary condition,

as highways for commerce, over which trade or travel

are or may be conducted in the customary modes of

trade or travel on water.

See also Utah v. United States, 403 U.S. 9, 10, 91 S.Ct.

1775, 1776, 29 L.Ed.2d 279 (1971).

7Under federal law, there are three instances in which the

“navigability” of a waterway must be determined: (1) to establish

the parameters of the admirality jurisdiction of a federal court,

The Montello, 87 U.S. (20 Wall.) at 438 (1874); (2) to define the

scope of federal regulatory jurisdiction conferred by authority of

the commerce clause, United States v. Appalachian Electric Power

Co., 311 U.S. 377, 61 S.Ct. 291, 85 L.Ed. 243 (1940); Puget Sound

Power & Light Co. v. Federal Energy Regulatory Comm’'n., 644

F.2d 785 (9th Cir.), cert. denied, 454 U.S. 1053, 102 S.Ct. 596, 70

L.Ed.2d 588 (1981); Gibbons v. Ogden, 22 U.S. (Wheat) 1, 6 L.Ed.

23 (1824); and (3) to establish title to the waterbed underlying an

inland waterway. Martin v. Waddell, 41 U.S. (16 Pet.) 367, 10

L.Ed. 997 (1842).

The Daniel Ball concerned the parameters of admiralty jurisdic-

tion, not title to the beds of inland waterways. Nevertheless, be-

cause the Supreme Court has consistently employed the Daniel Ball

test in determining “navigability for title,” see, e.g., Utah v. United

States, 403 U.S. 9, 91 S.Ct. 1775, 29 L.Ed.2d 279 (1971); United

States v. Oregon, 295 U.S. 1, 55 S.Ct. 610, 79 L.Ed. 1267 (1935) ;

United States v. Utah, 283 U.S. 64, 51 S.Ct. 438, 75 L.Ed. 844

(1931), it is well settled that that test applies in title navigability

cases. Alaska v. United States, 754 F.2d 851, 854 (9th Cir.), cert.

denied, 474 U.S. 968, 106 S.Ct. 533. 88 L.Ed.2d 317 (1985); Oregon

v. Riverfront Protection Ass’n., 672 F.2d 792, 794 (9th Cir. 1982).

a

19a

This much the parties agree on. What the parties dis-

agree about is how the Daniel Ball test should be applied.

As the United States would have it, a navigability deter-

mination would be a two step process: the first step

would be to select the customary commercial watercraft

in use in Alaska at the time of statehood (the craft that

would be selected is referred to by the United States in

its papers as the “magic boat”), and the second step

would be to examine the river to determine if it is usable

by the craft. The State of Alaska, on the other hand,

rejects the first step of the United States’ two step proc-

ess. According to Alaska, navigability is not established

by identification of a “magic boat” but rather is estab-

lished by determining (1) the capability of the waterbody

to be used for transportation of people or goods from

point to point on the water, (2) whether the watercraft

used or capable of being used on the waterbody are cus-

tomary means of transporting people or goods; and (3)

whether the use or susceptibilty to use of the waterbody

for transporting persons or goods existed in the natural

and ordinary condition of the water on the date of state-

hood.

Careful examination of the positions of the United

States and Alaska reveals that the difference between

them stems in significant part from differing conceptions

of how the Daniel Ball test meshes with the equal footing

doctrine. The United States’ position assumes that the

fact that under the equal footing doctrine navigability

“at the time of statehood” determines title means that

the elements of the Daniel Ball test concerning suscepti-

bility to use “as a highway for commerce” “in the cus-

tomary modes of trade and travel’ must be applied with

reference to the nature of commerce and the customary

modes of travel at the time of statehood. Alaska’s posi-

tion, on the other hand, assumes that the requirement of

the equal footing doctrine that a waterway must have

been navigable at the time of statehood for title to have

passed to the state means only that changes which have

20a

occurred in the physical configuration of the waterway

since the time of statehood are to be disregarded for the

purpose of determining title navigability. At this stage

of the analysis then the court is confronted with the ques-

tion of how, if at all, the equal footing doctrine bears on

application of the Daniel Ball test for title purposes.

Navigability was originally created as a legal concept

for the purpose of distinguishing those portions of a

waterbody which could be privately owned from those por-

tions which could not. See MacGrady, The Navigability

Concept in the Civil and Common Law, 3 Fla.St.U.L.Rev.

511, 511-512 (1975). At common law, navigable water-.

bodies belonged to the sovereign who held them as a pub-

lic trust while non-navigable waterbodies were subject

to private ownership.* See, e.g., Rex v. Smith, 99 Eng.

8 There is, however, debate as to whether the Crown owned only

the beds of waterbodies subject to the “ebb and flow of the tide” or

if instead the Crown owned the bed of navigable waterbodies re-

gardless of whether the waterbody was subject to the ebb and flow

of the tide. See MacGrady, The Navigability Concept, 3 Fla. St.

U.L. Rev. at 569-587. In the Ninteenth century, American and

English courts concluded that in England there are no waterbodies

beyond the ebb and flow of the tide large enough to be navigable

and that as a consequence in England navigable waterbodies and

waterbodies subject to the ebb and flow of the tide were co-extensive.

The Propeller Genesse Chief v. Fitzhugh, 53 U.S. (12 How.) 443,

454-455, 13 L.Ed. 1058 (1851); Murphy v. Ryan, 2 Ir.R.C.L. 143,

151-153 (1868); The Daniel Ball, 77 U.S. (10 Wall.) 557, 563, 19

L.Ed. 999 (1870). By so concluding, previous cases which held that

the Crown held title to the beds of navigable waterbodies were

reconciled with cases which had found that the Crown held title

only to the beds of tidewaters. The court would note that the asser-

tion that in England there are no waterbodies beyond those subject

to the ebb and fiow of the tide which are large enough to be navi-

gable seems implausible. See MacGrady, The Navigability Concept,

3 Fla. St. U.L. Rev. at 571. This, however, is a problem of the Eng-

lish law of title navigability, not the American law of title naviga-

bility, because under American law, navigable waterbodies are not

limited to those subject to the ebb and flow of the tide. The Daniel

Ball, 77 U.S. (10 Wall.) 557, 563, 19 L.Ed. 999 (1870); see infra

note 9.

2la

Rep. 283, 285 (K.B. 1780) (“The soil of a navigable

river belongs to the King.”); see also MacGrady, The

Navigability Concept, 3 Fla.St.U.L.Rev. at 583-587. De-

spite the obvious differences between American and Eng-

lish notions of sovereignty, American courts adopted the

English common law principle that navigable water-

bodies are held by the sovereign in trust for the public.°

In Martin v. Waddell, 41 U.S. (16 Pet.) 367, 10 L.Ed.

997 (1842), the Supreme Court found that title to navi-

gable waterbodies in the former colonies, formerly held

by the King of England in trust for the public pursuant

to the common law doctrine of navigable waterbodies, was

by virtue of the Revolution vested in the states. Id. at

410; accord Mumford v. Wardell, 73 U.S. (6 Wall.) 423,

436, 18 L.Ed. 756 (1867). Thus, as the legal concept of

navigability was first transplanted in the original 13

colonies, no violence was done to its underlying purpose:

the states stood in the position of the King, holding as

a public trust the title to the beds underlying navigable

waterbodies.

Other considerations unique to the American system of

government came into play when applying the doctrine of

® American courts did not, however, adopt the English definition

of navigability, which requires that the waterbody be subject to

the ebb and flow of the sea. See note 8, supra; The Daniel Ball,

77 U.S. (10 Wall.) 557, 563, 19 L.Ed. 999 (1870). American courts

declined to adopt the English tidewater test based on the perception

that whereas in England no navigable waterbodies were to be found

in inland areas unaffected by the tide of the sea, see supra, note 8,

in the United States “rivers are as navigable for many hundreds of

miles above as they are below the limits of tidewater, and some of

them are navigable for great distances . . . which are not even

affected by the tide at any point during their entire iength.” The

Daniel Ball, 77 U.S. (10 Wall.) at 563; see also The Propeller

Genesee Chief v. Fitzhugh, 53 U.S. (12 How.) 443, 454-457, 15

L.Ed. 1358 (1851). Thus, the differences between the English and

American definitions of navigability stem from perceived differ-

ences between American and English geography, and not from

differing perceptions as to the iegal purpose of the concept of

navigability.

22a

title navigability to waterbodies lying outside the original

13 colonies. Under the equal footing doctrine, new states

“have the same rights, sovereignity and jurisdiction . . .

as the original states possess within their respective

borders.” Mumford v. Wardell, 73 U.S. (6 Wall.) 423,

436, 18 L.Ed. 756 (1867); see also Pollard’s Lessee v.

Hogan, 44 U.S. (3 How.) 212, 228-229, 11 L.Ed. 565

(1845). These rights include ownership of the lands un-

derlying the navigable waters within the state’s bound-

aries. Pollard’s Lessee, 44 U.S. (3 How.) at 229 (1845):

Mumford, 73 U.S. (6 Wall.) at 486 (1867): Oregon v.

Riverfront Protection Ass’n., 672 F.2d 792, 794 (9th Cir.

1982). Thus, states admitted to the Union after the

Revolution, being entitled to the same rights as the orig-

inal 13 states, were, like the original 13 states, entitled

to the beds underlying navigable waterways. Pollard’s

Lessee, 44 U.S. (3 How.) at 228-229: accord Montana v.

United States, 450 U.S. 544, 551, 101 S.Ct. 1245, 1251.

67 L.Ed.2d 493 (1981). In the newly admitted states,

however, land not owned by the state generally was owned

by the federal government. As a consequence, in the newly

admitted states, the concept of navigability served the

purpose of distinguishing not public from private, but

rather state from federal. It is to be noted though that

the public/private distinction still has relevance in the

American law of title navigability. Under the American-

ized version of the common law doctrine of navigability,

by virtue of the rights gained in the Revolution and con-

firmed by the Constitution, it is the state, as opposed to

the federal government, which holds title in public trust

of “public waterbodies,” and it is through application of

the definition of navigability that the determination is

made of which waterbodies are public and which are not.

The purpose then of the equal footing doctrine as ap-

plied to questions of title navigability is to ensure that

all states are vested with the same right of safeguarding

“public,” that is “navigable,” waterbodies. However, this

conclusion says nothing about how navigability is to be

enema

23a

defined. On at least a theoretical level, defining naviga-

bility with reference oniy to the state of commerce at the

time of statehood, as the United States urges this court

to do, does not undermine the above described policies and

purposes of the equal footing and navigability doctrines.

If one were to accept the proposition that as the nature

of commerce varies notions of what is “navigable” and

hence “public” vary accordingly, it would follow that

navigability should be determined with reference to the

state of commerce at the time of statehood. The fact that

each state has an equal right to the title of navigable or

public waterbodies does not in and of itself compel the

conclusion that the concept of what is “navigable,” and

hence “public,” is static and non-malleable. In short,

while it is clear the equal footing doctrine guarantees all!

states equal rights in navigable waterbodies, the doctrine

does not guarantee that the concept of navigability is

static and not subject to change over the years.

However, the United States fails to cite a case that

supports the proposition that the elements of the Daniel

Ball test concerning susceptibility of the waterway to use

“as a highway for commerce,” “in the customary modes

of trade and travel” must be applied with reference to

the nature of commerce and “the customary modes of

trade and travel” at the time of statehood. The majority

of courts which have applied the Daniel Ball test for the

purpose of determining title, while careful to note that

navigability is to be determined at the time of statehood,

have not made or required specific findings with respect

to the “customary mode of trade and travel” at the time

of statehood. See, e.g., Utah v. United States, 403 U.S.

9, 91 S.Ct. 1775, 29 L.Ed.2d 279 (1971); United States

y. Utah, 283 U.S. 64, 51 S.Ct. 438, 75 L.Ed. 844 (1931) ;

United States v Holt State Bank, 270 U.S. 49, 46 S.Ct.

197, 70 L.Ed. 465 (1925); Oregon v. Riverfront Protec-

tion Ass’n., 672 F.2d 792, 795 (9th Cir.1982). There is

dictum in a couple of cases which could be construed as

supporting the United States’ position. See North Dakota

24a

ex rel. Bd. of Univ. and State Lands v. Andrus, 671 F.2d

271, 278 (8th Cir.1982), rev’d on other grounds sub nom.

Block v. North Dakota ex rel. Bd. of Univ. and State

Lands, 461 U.S. 273, 103 S.Ct. 1811, 75 L.Ed.2d 840

(1983) (“. ..[Wle must bear in mind that the issue is

one of potential commercial use and hence navigability

at the time of statehood, not in the present day... .

{[C]anoe travel at the time of North Dakota’s statehood

represented a viable means of transporting persons and

gzoods.”); Alaska v. United States, 754 F.2d 851, 854

(9th Cir.), cert. denied, 474 U.S. 968, 106 S.Ct. 333, 88

L.Ed.2d 317 (1985) (“ .. [Wle have liberally con-

strued the phrase ‘customary modes of trade and travel

on water,’ [citations omitted], taking into account trans-

portation methods in use at the time of statehood.”).

These cases, however, hold nothing more than that the

“customary modes of trade and travel” at the time of

statehood are relevant to the determination of title naviga-

bility. The cases do not hold, as the United States here

contends, that a determination of title navigability de-

pends exclusively on the customary modes of trade and

travel in use at the time of statehood.

The case which sheds the most light on the relationship

between the equal footing doctrine and the Daniel Ball

title navigability test is United States v. Utah, 283 U.S.

64, 51 S.Ct. 438, 75 L.Ed. 844 (1931). There, the United

States had brought a quiet title action against the State of

Utah claiming that portions of the Green, Grand and

Colorado rivers were non-navigable. In taking exception

to certain findings of navigability made by a special mas-

ter, the United States argued that the absence of historical

evidence of actual use by Indiana, fur traders, or early

explorers was “weighty evidence” of non-navigability.

Noting that the region at issue was unexplored at the time

of statehood, the Supreme Court rejected this argument

on the ground that a title navigability determination can-

not be made to depend upon the relative development or

25a

lack of development of a state at the time of its admission

to the Union:

It is true that the region through which the rivers

flow is sparsely settled. ... In view of past condi-

tions, the government urges that the consideration of

future commerce is too speculative to be entertained.

Rather it is true that, as the title of a state depends

upon the issue, the possibilities of growth and future

profitable use are not to be ignored. Utah, with its

equality of right as a state of the Union, is not to be

denied title to the beds of such of its rivers as were

navigable in fact at the time of the admission of the

state either because the location of the rivers and the

circumstances of the exploration and settlement of

the country through which they flowed had made re-

course to navigation a late adventure or because com-

mercial utilization on a large scale awaits future

demands. The question remains one of fact as to the

capacity of the rivers in their ordinary condition to

meet the needs of commerce as they may arise in con-

nection with the growth of the population, the multi-

plication of activities, and the development of natural

resources. And this capacity may be shown by physi-

cal characteristics and experimentation as well as by

the uses to which the streams have been put.

United States v. Utah, 283 U.S. 64, 83, 51 S.Ct. 438, 443-

44, 75 L.Ed. 844 (1931).

The holding of the Supreme Court that a state’s

“equality of right as a state of the Union” is not to be

denied because of the state’s under-development at the

time of statehood undermines the United States’ conten-

tion that the determination of navigability is limited by

“the customary mode of commerce” at the time of state-

hood. If a state’s “equality of right as a state of the

Union” is not to be denied because of a state’s relative

under-development at the time of statehood and if “the

question [of title navigability] remains one of fact as to

26a

the capacity of the rivers in their ordinary condition to

meet the needs of commerce as these may arise,” (em-

phasis added), it necessarily follows that neither the ex-

tent nor the nature of commerce in the region at the time

of statehood is relevant to title navigability determina-

tions. Rather, it appears that the Supreme Court in

United States v. Utah approached the problem of title

navigability with fixed, if unstated, concepts of ‘“com-

merce” and “ordinary modes of commerce” in mind and

simply held that those concepts of “commerce” and “ordi-

nary modes of commerce” were to be applied to the river

at issue without regard to the extent or nature of actual

past or present commercial development in the region sur-

rounding the river.

It must be noted that the Supreme Court in United

States v. Utah found only that lack of actual navigation

at the time of statehood on a waterbody due to the eco-

nomic under-development of the region surrounding the

waterbody is not evidence of non-navigability; the Su-

preme Court did not directly address the theoretical pos-

sibility that a state’s right to the title to beds of navigable

waterbodies is itself a relative right which varies accord-

ing to existing concepts of what constitutes commerce,

navigability and publicness. However, to the extent that

the Supreme Court did not in United States v. Utah re-

ject the application of this malleable concept of naviga-

bility in making title navigability determinations, this

court, for the reasons set forth below, does.

On a purely theoretical level, the notion that as con-

cepts of what constitutes commerce vary concepts of what

is “navigable” vary accordingly has a certain appeal.

As a practical matter, however, if such a malleable defini-

tion were given to the concept of navigability, the naviga-

bility or non-navigability of waterbodies, and hence title

to those waterbodies, would be in constant flux. This

would plainly be an untenable result. It might be argued

that this problem could be solved by permanently fixing

27a

title according to the navigability of the waterbody at

the time of statehood. However, by making title a con-

stant while at the same time using a malleable definition

of navigability, and hence of title itself, an equally un-

tenable situation results: as the nature of commerce and

navigability changed, states would be found to have title

to non-navigable waterways and without title to navigable

waterways. This is, of course, contrary to what the law

provides. Thus, as a purely practical matter, it does not

make sense to fix title according to prevailing modes of

conducting commerce at the time of statehood.

In sum, then, although there is little authority directly

on point, the inference to be drawn from existing au-

thority is clearly that the admonition of the equal footing

doctrine that title is to be determined at the time of state-

hood does not mean that the “usual mode of commerce”

element of the Daniel Ball test must be applied with

reference to how commerce was conducted at the time of

statehood. In addition, if the malleable, relativistic con-

cept of navigability urged by the United States were

adopted, title to waterbodies could not be kept constant

without undermining the well established principle that

the states hold title to the beds underyling navigable

waterbodies. This court consequently concludes that the

requirement that title navigability be determined at the

time of statehood means only that when making a title

navigability determination, the Daniel Ball test is to be

applied to the physical dimensions and configuration of

the river existing at the time of statehood.

Having concluded that the “commerce” and “ordinary

modes of trade and travel” elements of the Daniel Ball

test need not be construed with reference only to the

“commerce” and “ordinary modes of trade and travel’’ in

existence at the time of statehood, the court is left with

the question of how those elements of the Daniel Ball test

are to be defined and applied in a given case. Alaska ad-

vances in the alternative three independent arguments

28a

conce: ing the application and definition of the commerce

element of the test. Alaska’s first argument is that the

term “commerce” no longer has any application in title

navigability determinations. As a fall back position,

Alaska argues that commerce is not limited to “freight-

hauling” activities, but rather encompasses activities such

as fishing, camping, sightseeing, trapping, hunting and

governmental activities. As a final alternative, Alaska

argues that even if the foregoing non “freight-hauling”

activities are not commerce, they constitute relevant evi-

dence of a waterbody’s susceptibility to bearing tradi-

tional forms of commerce. The United States does not dis-

pute the validity of this third argument, nor does the

court. United States v. Utah, 288 U.S. 64, 82-83, 51

S.Ct. 438, 443-444, 75 L.Ed. 844 (19381); Utah v. United

States, 403 U.S. 9, 11, 91 S.Ct. 1775, 1776, 29 L.Ed.2d

279 (1971). The United States does dispute the first two

arguments advanced by Alaska and those arguments will

be addressed in turn.

Alaska contends that the key element of the federal

title navigability test is not that the waterbody at issue

be susceptible to commercial use, but rather that it be

susceptible to utilization as a transportation route. At

first glance, Alaska’s position would seem to be contrary

to all existing law. Indeed, the well established federal

title navigability test explicitly provides that a waterbody

is navigable if it is susceptible to being used as a “high-

way for commerce,” and courts have consistently cited

and applied this commercial use requirement when mak-

ing title navigability determinations.

Nevertheless, the court finds substantial merit in

Alaska’s position. It is to be noted that the federal test

essentially equates the use of a waterbody for transporta-

tion and as a “highway for commerce”: “. . . as a high-

way for cotfmerce, over which . . . trade or travel may

be conducted... .’’ (emphasis added). This implicit

equation between routes for travel and routes for conduct-

Dies cesheneeenmeieneteemenaninnammematial

29a

ing commerce comports with common sense notions of

what is required to conduct commerce by means of a

waterbody. It is difficult to imagine a situation in which

a waterbody is susceptible to use as a transportation

route yet not susceptible to use as a highway for com-

merce. The reverse situation, on the other hand, is not

difficult to imagine and indeed is probably always the

case: where a waterbody is not susceptible to use as a

transportation route, it is highly unlikely that the water-

body is susceptible to use as a highway for commerce.

As a practical matter then, requiring only that a water-

body be susceptible to use as a transportation route would

rarely, if ever, alter the result of a given application of

the Daniel Ball test. Although this court would not go so

far as to hold that susceptibility to use as a highway for

commerce is no longer required under the federal title

navigability test, it appears to the court that the travel

requirement ordinarily subsumes the commerce require-

ment and that as a consequence, the travel requirement

is indeed “the essence of the federal test.” Utah v. United

States, 403 U.S. 9, 11, 91 S.Ct. 1775, 1776, 29 L.Ed.2d

279 (1971).

This analysis is supported by the facts and holding of

the Supreme Court in Utah v. United States, 403 U.S. 9,

91 S.Ct. 1775, 29 L.Ed.2d 279 (1971). There the United

States contested a finding by a special master that the

Great Salt Lake was navigable. The special master had

found that the lake had been used by ranchers to transport

livestock by boat from the mainland to an island in the

lake. The United States contended that use of the water-

body for ranching was not evidence of commercial use.

Rejecting this argument, the Supreme Court found that

the feature which distinguishes between navigability and

non-navigability is use of the waterbody as a “highway”

and that the purpose for which travel is conducted on the

waterbody is “an irrelevant detail”:

“The hauling apparently was done by the owners of

the livestock, not by a carrier for the purpose of mak-

30a

ing money. Hence it is suggested that this was not

use of the lake as a navigable highway in the cus-

tomary sense of the word. ... We think that is an

irrelevant detail. The lake was used as a highway

and that is the gist of the federal test.”” 403 U.S. at

11, 91 S.Ct. at 1776.

Likewise here, the court finds that the paramount con-

sideration in applying the Daniel Ball test is whether the

waterbody at issue is susceptible to use as a route for

transportation.

By emphasizing the susceptibility of a waterbody to

being used as a transportation route when applying the

title navigability test, difficult questions regarding how

the “commerce” element of the title test is to be applied

are resolved in a manner which is both sensible and con-

sistent with the policy considerations underlying the title

navigability test. The nature of commerce and the man-

ner in which it is conducted varies substantially from his-

torical period to historical period and from geographical

region to geographical region. As a consequence, emphasis

of the “commerce” element of the title navigability test

would lead to widely varying results depending on where

and when the title test was applied. This, as demonstrated

above, is an undesirable result because it would under-

mine the stability of title determinations as well as the

equality of the states’ right to hold the title in public

trust. By emphasizing the capability of the waterbody to

serve as a route for transportation, these problems are

avoided. Regardless of region or historical period, craft

capable of providing transportation must be of a certain

minimum size. Assuming, as this court does, that a water-

body capable of serving as a transportation route is in

the ordinary case also susceptible to use as a highway for

commerce, the task then of a court in applying the “high-

way for commerce” element of the Daniel Ball test is

much simplified. When determining the title navigability

of a waterbody in this manner a court need not specifically

——

3la

concern itself with when and how commerce has or could

he conducted in the region surrounding the waterbody;

rather the court need only inquire if the waterbody is

susceptible to the most basic form of commercial use:

the transportation of people or goods.

The effect of equating a waterbody’s susceptibility to

use as a transportation route and its susceptibility to use

as a “highway for commerce” is to define commerce in its

most elemental form and disregard the regional and his-

torical variations in the manner in which it is conducted.

There is nothing, however, in the historical development of

the title navigability test that indicates that navigability

should depend on the regional and historical characteris-

tics of the commerce conducted in the area surrounding

the waterbody. As pointed out above, the concept of

navigability was developed to distinguish that which can

be privately owned from that which is to be held in public

trust by the sovereign. Underlying the use of the concept

of navigability to distinguish between public and private

is the notion that large waterbodies subject to commercial

exploitation should be kept public while waterbodies so

small as to not be useful for commercial transportation

are suitable for private ownership. MacGrady, The Navi-

gability Concept in the Civil and Common Law, 3 Fla.St.

U.L.Rev. 511, 574-575 (1975). This policy, however, is

not served by declaring a waterbody capable of transport-

ing goods non-navigable simply because commerce in the

region at that time is customarily conducted in vessels

too large for the waterbody. See, e.g., The Montello, 87

U.S. (20 Wall.) 430, 441, 22 L.Ed. 391 (1874) (“It

would be a narrow rule to hold that . . . unless a river

was capable of being navigated by steam or sail vessels,

it could not be treated as a public highway.”). This is

undoubtedly why the Daniel Ball test provides that a

waterbody need only be “susceptible” to use as a high-

way for commerce. As pointed out above, when a water-

body is susceptible to use as a conduit for transportation

82a

of any substantial sort, it generally will also be susceptible

to use as a highway for commerce.

Alaska’s second argument, is, as indicated above, that

“commerce” is not limited to freight hauling activities,

but rather encompasses activities such as fishing, camp-

ing, sightseeing, trapping, hunting and governmental ac-

tivities such as surveying and enforcement of game laws.

As the court understands it, Alaska’s argument here is

not that these are activities which when conducted on a

waterbody are evidence of commercial use of the water-

body. Rather, it appears that Alaska is arguing tnat

utilization of a waterbody is an artery of transportation

for the purpose of conducting these activities constitutes

use of the waterbody as a “highway for commerce.” So

construing Alaska’s argument, the analysis applied by

the court with respect to Alaska’s first argument is

equally applicable here: when a waterbody is susceptible

to being used as a route for transporting people or goods,

it generally will also be susceptible to use as a “highway

for commerce.” Again, in the court’s view, in the ordi-

nary case there is no material difference between sus-

ceptibility to use as a route of transportation and sus-

ceptibility to use as a “highway for commerce.” As a

consequence, it is unnecessary for the court to decide if

utilization of a waterbody as an artery of transportation

for the purpose of reaching fishing, trapping or game

spots is actual use of the waterbody as a “highway for

commerce” or merely evidence of the waterbody’s sus-

ceptibility to use as a “highway for commerce’’; where

a waterbody is used as a transportation route, for what-

ever purpose, ordinarily the waterbody will also be sus-

ceptible to use as a highway for commerce. As is well

established, susceptibility of a waterbody to use as a high-

way for commerce in the absence of actual use as a high-

way for commerce suffices to establish navigability.

United States v. Utah, 288 U.S. 64, 88, 51 S.Ct. 438, 443-

444, 75 L.Ed. 844 (1931). The court does note, however,

that when a waterbody is utilized as a means of trans-

33a

portation for conducting some of the activities referred to

in Alaska’s second argument there may be instances when

there is no longer an essential equivalence between use of

the waterbody as a route of transportation and the sus-

ceptibility of the waterbody to use as a “highway for

commerce.” It is easy, for example, to imagine a situa-

tion in which a fishing or trapping site near a waterbody

could be reached only with a single person kayak. Because

it is doubtful whether commerce can be conducted in a

single person kayak, the fact that the waterbody was used

as a highway for reaching the fishing or trapping spot

might not necessarily support a finding that the water-

body was susceptible to use as a highway for commerce.

In such a case, it would then be necessary to decide the

issue of whether utilization of a waterbody as a “highway

for reaching fishing spots” is the equivalent of utilization

of the waterbody as a highway for commerce. The facts

of this case are not such that the court need decide this

issue.

In sum then, the title navigability of a particular

waterbody is not dependent on the nature of commerce

conducted in the region surrounding the waterbody at

a given time. A waterbody which is capable of transport-

ing people or goods will in the ordinary case also be sus:

ceptible to use as a “highway for commerce.”’ With these

precepts in mind, the court now turns to the facts of this

case.

Ahtna, Inc. and Alaska have entered into extensive

stipulations of fact concerning the physical configuration

of the portion of the Gulkana River here at issue and the

uses to which it has been put.'® These factual stipulations

10 While the United States has not joined in this stipulation, it

has represented to the court that it is “willing” to do so. United

States’ Opposition to Alaska’s Motion for Reconsideration at 7.

Whether the United States does or does not actually join in the

stipulation is not crucial however because the United States has not

disputed Ahtna’s and Alaska’s description of the physical char-

acteristics of the lower 30 miles of the Gulkana.

OE

34a

provide more than a sufficient basis for applying the legal

principles the court has concluded to be applicable in this

case. Consequently, resolution of this case on the cross

motions before the court is appropriate. See Oregon ».

Riverfront Protection Ass’n., 672 F.2d 792, 794 (9th Cir.

1982).

In view of the stipulated facts, there is no question that

the portion of the Gulkana River here at issue (herein-

after the court will refer to the portion of the river at

issue as simply “the river” or “the Gulkana”) is capable

of transporting people and goods and consequently is

“susceptible to use as a highway for commerce.” Much of

the river is ordinarily slow moving and 3-6 feet deep and

about 150 feet wide. Other areas are characterized by

unbroken, comparatively fast running (2-3 m.p.h.) waters

2-4 feet deep under average conditions. These stretches

are interrupted by shorter segments of alternating riffles

and pools. In a three mile stretch between points 7.5 miles

and 10.5 miles above the river’s confluence with the

Copper River there are segments ranging from just a few

feet to a couple hundred feet in length which contain

standing waves up to three feet high, capable of swamp-

ing an open canoe in places and requiring maneuvering

to avoid. These waves are no obstacle to other more stable

watercraft such as riverboats and inflatable rafts which

are larger and wider than canoes.

The shallowest spot reported is a gravel shoal area

a couple hundred feet long located about a quarter mile

above the Richardson Highway Bridge (3.75 miles above

the Gulkana’s confluence with the Copper River) crossing

the Gulkana River. At this spot the water depth is nor-

mally about a foot and a half deep, and it can drop down

to a foot during low water conditions which sometimes

occur after mid-July. Just below the Richardson High-

way Bridge, there is another gravel shoal maybe 50 feet

long where the deepest channel, to the right side of the

river heading downstream, is normally about two feet

35a

deep. The water level at this spot sometimes drops to

16-18 inches after mid-July and at times drops another

3 to 4 inches in late August or September. Below this

point the entire river slows and is several feet deep as

it approaches its confluence with the Copper River.

There could be some question as to whether the river

is navigable in its shallowest spot, that is, the couple of

hundred feet stretch above the Richardson Highway

Bridge where the water is normally only a foot and a half

deep and at times only a foot deep.'! This stretch, how-

ever, is very short and neither the United States nor

Ahtna, Ine. has produced any evidence that navigation

over this stretch is not possible. Moreover, it is well es-

tablished that “navigability, in the sense of the law, is not

destroyed because the watercourse is interrupted by oc-

casional natural obstructions or portages.” Economy

Light & Power Co. v. United States, 256 U.S. 113, 122,

41 S.Ct. 409, 412, 65 L.Ed. 847 (1921); accord North

Dakota ex rel. Bd. of Univ. and School Lands v. Andrus,

671 F.2d 271, 277 (8th Cir.1982), rev’d on other grounds

sub nom. Block v. North Dakota ex rel. Bd. of Univ. and

School Lands, 461 U.S. 2738, 103 S.Ct. 1811, 75 L.Ed.2d

840 (1983); United States v. Utah, 283 U.S. 64, 86-87,

51 S.Ct. 438, 444-445, 75 L.Ed. 844 (19381); see United

States v. Holt State Bank, 270 U.S. 49, 56-57, 46 S.Ct.

197, 199-200, 70 L.Ed. 465 (1925) (waterbody at issue

11 Tt is axiomatic that navigability is a question of fact, The

Daniel Ball, 77 U.S. (10 Wall.) 557, 563, 19 L.Ed. 999 (1870), and

that as a consequence analogies to other waterways found to be

navigable are not always helpful. Nevertheless, the court would

note that even the most difficult passage of the portion of the Gul-

kana at issue here compares favorably with waterbodies found to

be navigable in other cases. See, e.g., North Dakota ex rel. Bd. of

Univ. and School Lands v. Andrus, 671 F.2d 271 (&th Cir. 1982),

rev'd on other grounds sub nom. Block v. North Dakota ex rel. Bd.

of Univ. and School Lands, 461 U.S. 273, 103 S.Ct. 1811, 75 L.Ed.2d

840 (1983) (Little Missouri River found navigable despite report

that maximum depth of river was two and one-half feet).

36a

found navigable despite difficulties to navigation posed by

sand bars and vegetation) ; Oregon v. Riverfront Protec-

tion Ass’n., 672 F.2d 792, 795 (9th Cir.1982) (portion

of McKenzie river found navigable as a matter of law

despite fact that portion of river at issue at times had

exposed gravel bars, boulders and shoals). Thus, even

assuming that navigation of the short stretch of shallow

water above the Richardson Highway Bridge might be

difficult, the impediment to navigation posed by the stretch

is not of sufficient magnitude to compel a finding that the

river is non-navigable.

Any concern that any segment of the river is non-

navigable is put to rest by the evidence concerning the

various uses that have actually been made of the river.

The first reported use '° of this section the Gulkana River

is one told by Ahtna Natives of a short-statured Gulkana

area chief who traded copper for furs with the Tanana

people at Isabel Pass (9 miles north of Paxson Lake),

had the furs loaded into Native boats, and then trans-

ported them down the Gulkana River to a village for re-

distribution to other Ahtna groups in the Copper River

Valley. The village was reportedly located at the com-

bined mouths of Bear Creek and the Gulkana River, about

12 Ahtna, Inc. and Alaska have stipulated that the “natural and

ordinary condition of the [Gulkana Rivers System] is the same now

as it was at statehood in terms of location and general physical

characteristics such as water volume, gradients, geology and general

weather and water level conditions.’’ Stipulation of Facts, filed

November 21, 1984, at p. 8. There is nothing in the record to indi-

cate that the physical characteristics of the Gulkana were at anv

time prior to statehood significantly different than they are at

present. As a consequence, when considering evidence of actual

use of the Gulkana in determining whether the Gulkana was sus-

ceptible at the time of statehood to use as a “highway for com-

merce,” it is irrelevant when the actual use occurred. Oregon v.

Riverfront Protection Ass’n., 672 F.2d 792, 795 (9th Cir. 1982):

see Utah v. United States, 403 U.S. 9, 9-10, 91 S.Ct. 1775, 1776,

29 L.Ed.2d 279 (1971); United States v. Utah, 283 U.S. 64, 82, 51

S.Ct. 438, 443-444, 75 L.Ed. 844 (1931).

37a

2.3 miles above the river’s confluence with the Copper

River. This story, set in the late 1700’s or early 1800’s,

is not documented, but is considered historical by the

Ahtna who tell it. It is known that for the period of the

story the Ahtna had villages and hunting camps within

the Gulkana River drainage, that inter-tribal trade existed

between the Ahtna and other native groups, and that the

commonly shared Ahtna technology included canoe-type

craft constructed by birch bark or animal skins sewn to-

gether over a wooden frame. These crafts were cus-

tomarily about 17 feet long, 4 feet wide and 2 feet deep.

The craft were primarily used for down stream travel.

Today watercraft are commonly used within this 30

mile section of river in connection with the fishing and

camping activities which take place within the river cor-

ridor. Travel on this section is most frequently between

the Sourdough Campground (33 miles above the con-

fluence of the River with the Copper River) and the

Richardson Highway Bridge, which provide access to the

river by road. Use of watercraft between the bridge and

the confluence of the river with the Copper River is also

prevalent. These river stretches are customarily used, and

susceptible to use, by the following craft: (1) powered

square-sterned flat-bottomed riverboats and skiffs and

V-nosed round bottomed lake boats, most commonly con-

structed of aluminum but also fiberglass or wood, between

16 to 24 feet long by 4 to 10 feet wide, capable of carry-

ing loads ranging between 900 and 2,000 pounds on the

river, with the draft for the metal boats of this type

commonly running between 3-6 inches unloaded and 2-4

inches more when loaded to capacity and sitting still in

the water, and powered by contemporary jet units, large

outboard propeller motors or air propeller engines which

can reduce or increase the real draft of the boat once

under power; (2) inflatable rafts most commonly ranging

between 12 and 151% feet long and 5 to 7 feet wide, with

a river load capacity between 1,250-2,000 pounds and a

draft of 6-8 inches when loaded to capacity, and used

38a

almost exclusively for downstream travel using rowing

frames and oars; (3) square-sterned motorized freight

canoes and double-ended paddle canoes 15 to 19 feet long.

Most travel within this section is by recreationalists in

their own craft to reach fishing and camping spots on the

river between the mouth and Sourdough. Traffic is most

pronounced during mid-June through July, while the sal-

mon are running in the river. During a busy weekend

day between a dozen and 20 boats carrying 60 or so

people are commonly in use within this section. Power-

boats are the craft most commonly used, followed by in-

flatable rafts and canoes.

Facts in addition to the above are stipulated to by

Alaska and Ahtna, Inc. It is not necessary, however, to

reiterate those additional facts because the facts already

recited are more than sufficient to support a finding that

the portion of the Gulkana River here at issue is sus-

ceptible to use as a highway for commerce, over which

trade or travel may be conducted in the customary modes

of trade or travel on water.'* Accordingly, the court,

finding the lower 30 miles of the Gulkana River to

be navigable as a matter of law, hereby GRANTS the

13 The Gulkana is frozen over approximately six months out of

the year. Stipulation of Facts, filed November 21, 1984, at p. 7.

However, it is well established that climatic changes rendering a

waterbody non-navigable on a seasonal] basis do not preclude a find-

ing of overall navigability. Oregon v. Riverfront Protection Ass’n.,

672 F.2d 792, 795 (9th Cir. 1982) ; North Dakota ex rel. Bd. of Univ.

and School Lands v. Andrus, 671 F.2d 271, 277-278 (8th Cir. 1982)

rev'd on other grounds sub nom. Block v. North Dakota ez rel. Bd.

of Univ. and School Lands, 461 U.S. 273, 103 S.Ct. 1811, 75 L.Ed.2d

840 (1983). Thus, in light of the above finding that the Gulkana

is navigable when not frozen over, it is not necessary for the court

to decide whether evidence of ice use can be admitted to prove

navigability. The court would observe, however, that the holding

of the Ninth Circuit in Alaska v. United States, 754 F.2d 851 (9th

Cir.), cert. denied, 474 U.S. 968, 106 S.Ct. 333, 88 L.Ed.2d 317

(1985), would appear to preclude admission of evidence of ice use.

39a

State of Alaska’s motion for summary judgment and

DENIES the United States’ cross motion for judgment

on the pleadings.

IT IS SO ORDERED.

40a

APPENDIX C

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

Case No. A80-359 Civ (Gulkana River)

STATE OF ALASKA,

Plaintiff,

V.

UNITED STATES OF AMERICA, DONALD HODEL, Secretary

of the Interior; ROBERT PENFORD, Alaska State Direc-

tor, Bureau of Land Management; AHTNA, INC., and

STA-KEH CORPORATION,

Defendants.

FINAL JUDGMENT

[Filed April 22, 1987]

This matter came before the Court as an action filed

by the State of Alaska against the United States of

America, Department of Interior officials, Ahtna, Inc.

and Sta-Keh Corporation. The State of Alaska moved

for sun:mary judgment and the United States, joined by

Ahtna, Inc., cross moved for judgment on the pleadings.

Concurrently herewith the Court is filing its Second

Amended Order granting the State of Alaska’s motion

for summary judgment, denying the United States’ cross

motion for judgment on the pleadings, and finding the

portion of the Gulkana River contained within the con-

veyance of purported title to Ahtna, Inc. and Sta-Keh

Corporation to be navigable as a matter of law.

Accordingly, the issues having been considered and a

decision having been rendered,

4la

IT IS HEREBY ORDERED AND ADJUDGED:

1. The United States of America, Aetna, Inc. and

Sta-Keh Corporation have no ownership of or interest in

title to the bed of the portions of the Gulkana River sys-

tem purportedly conveyed by the United States to Sta-

Keh Corporation by interim conveyance No. 209, dated

June 29, 1979.

2. The portion of the interim conveyance No. 209 by

the United States of America to Sta-Keh Corporation,

dated June 29, 1979, which purports to convey title to

the bed of the Gulkana River to Sta-Keh Corporation

(since merged into Ahtna, Inc.) is declared null and

void and without effect, and the same is ordered cancelled.

The Clerk of the Court is directed to enter this Final

Judgment forthwith.

Dated: April 16, 1987

s/ Laughlin E. Waters

LAUGHLIN E. WATERS

Sr. United States District Judge

June 04, 1987

Total costs taxed in favor of Plaintiff and against the

U.S. in the amount of $3,602.49 representing the amount

allowed herein and the amount of $716.50 allowed May

12th.

42a

APPENDIX D

STATUTORY PROVISIONS

THE SUBMERGED LANDS ACT OF 1953

43 U.S.C. sec. 1311

(a) It is hereby determined and declared to be in the

public interest that (1) title to and ownership of the

lands beneath navigable waters within the boundaries of

the respective States, and the natural resources within

such lands and waters, and (2) the right and power to

manage, administer, lease, develop, and use the said

lands and natural resources all in accordance with appli-

cable State law be, and they are hereby, subject to the

provisions hereof, recognized, confirmed, established, and

vested in and assigned to the respective States or the

persons who were on June 5, 1950, entitled thereto under

the law of the respective States in which the land is

located, and the respective grantees, lessees, or successors

in interest thereof:

(b) (1) The United States hereby releases and relin-

quishes unto said States and persons aforesaid, except as

otherwise reserved herein, all right, title, and interest of

the United States, if any it has, in and to all said lands,

improvements, and natural resources; .. .

(d) Nothing in this subchapter or subchapter I of this

chapter shall affect the-tse, development, improvement,

or control by or under the constitutional authority of the

United States of said lands and waters for the purposes

of navigation or flood control or the production of power,

or be construed as the release or relinquishment of any

rights of the United States arising under the constitu-

tional authority of Congress to regulate or improve nev-

igation, or to provide for flood control, or the production

of power;

(e) Nothing in this subchapter or subchapter I of

this chapter shall be construed as affecting or intended to

43a

affect or in any way interfere with or modify the laws

of the States which lie wholly or in part westward of the

ninety-eighth meridian, relating to the ownership and

control of ground and surface waters; and the control,

appropriation, use and distribution of such waters shall

continue to be in accordance with the laws of such States.

THE ALASKA STATEHOOD ACT

48 U.S.C. note prec. sec. 21

Sec. 4.. As a compact with the United States said State

and its people do agree and declare that they forever

disclaim all right and title to any lands or other property

not granted or confirmed to the State or its political sub-

divisions by or under the authority of this Act, the right

of title to which is held by the United States or is sub-

ject to disposition by the United States, and to any lands

or other property (including fishing rights), the right

or title to which may be held by any Indians, Eskimos, or

Aleuts (hereinafter called natives) or held by the United

States in trust for said natives; that all such lands or

other property (including fishing rights), the right or

title to which may be held by said natives or is held by

the United States in trust for said natives, shall be and

remain under the absolute jurisdiction and control of the

United States until disposed of under its authority except

to such extent as the Congress has prescribed or may

hereafter prescribe....

See. 6...

(b) The State of Alaska, in addition to any other

grants made in this section, is hereby granted and shall

be entitled to select, within thirty-five years after the

admission of Alaska into the Union, not to exceed one

hundred and two million five hundred and fifty thousand

acres from the public lands of the United States in Alaska

which are vacant, unappropriated, and unreserved at the

time of their selection; .. .

ee

44a

(m) The Submerged Lands Act of 1953 (Public Law

31, Eighty-third Congress, first session; 67 Stat. 29)

shall be applicable to the State of Alaska and the said

State shall have the same rights as do existing States

thereunder.

THE ALASKA NATIVE CLAIMS SETTLEMENT ACT

43 U.S.C. secs. 1601 et seq. |

Sec. 1601. Congress finds and declares that—

(a) there is an immediate need for a fair and just

settlement of all claims by Natives and Native groups

of Alaska, based on aboriginal land claims;

(b) the settlement should be accomplished rapidly, with

certainty, in conformity with the real economic and social

needs of Natives, without litigation, with maximum

participation by Natives in decisions affecting their rights

and property,...

Sec. 1602. For the purposes of this chapter, the

term—

. (e) “Public lands” means all Federal lands and

interests therein located in Alaska except: (1) the small-

est practicable tract, as determined by the Secretary, en-

closing land actually used in connection with the admin-

istration of any Federal installation, and (2) land selec-

tions of the State of Alaska which have been patented or

tentatively approved under section 6(g) of the Alaska

Statehood Act, as amended, or identified for selection by

the State prior to January 17, 1969; ...

Sec. 1603.

(a) All prior conveyances of public land and water

areas in Alaska, or any interest therein, pursuant to

Federal law, and all tentative approvals pursuant to sec-

tion 6(g) of the Alaska Statehood Act, shall be regarded

as an extinguishment of the aboriginal title thereto, if

any.

45a

(b) All aboriginal titles, if any, and claims of abor-

iginal title in Alaska based on use and occupancy, in-

cluding submerged land underneath all water areas, both

inland and offshore, and including any aboriginal hunting

or fishing rights that may exist, are hereby extinguished.

Sec. 1610.

(a) (1) The following public lands are withdrawn, sub-

ject to valid existing rights, from all forms of appropria-

tion under the public land laws, including the mining and

mineral leasing laws, and from selection under the Alaska

Statehood Act, as amended:

(A) The lands in each township that encloses all or

part of any Native village identified pursuant to subsec-

tion (b) of this section;

(B) The lands in each township that is contiguous to

or corners on the township that encloses all or part of

such Native village; and

(C) The lands in each township that is contiguous to

or corners on a township containing lands withdrawn by

paragraph (B) of this subsection.

The following lands are excepted from such withdrawal:

lands in the National Park System and lands withdrawn

or reserved for national defense purposes other than

Naval Petroleum Reserve Numbered 4.

(2) All lands located within the townships described

in subsection (a) (1) hereof that have been selected by,

or tentatively approved to, but not yet patented to, the

State under the Alaska Statehood Act are withdrawn,

subject to valid existing rights, from all forms of appro-

priation under the public land laws, including the mining

and mineral leasing laws, and from the creation of third

party interests by the State under the Alaska Statehood

Act.

' 46a

(3)(A) If the Secretary determines that the lands

withdrawn by subsections (a) (1) and (2) hereof are in-

sufficient to permit a Village or Regional Corporation to

select the acreage it is entitled to select, the Secretary

shall withdraw three times the deficiency from the nearest

unreserved, vacant and unappropriate public lands... .

(b) Native villages not listed in subsection (b) (1)

hereof shall be eligible for land and benefits under this

chapter and lands shall be withdrawn pursuant to this

section if the Secretary within two and one-half years

from December 18, 1971, determines that—

(A) twenty-five or more Natives were residents of an

established village on the 1970 census enumeration date

as shown by the census or other evidence satisfactory to

the Secretary, who shall make findings of fact in each

instance; and

(B) the village is not of a modern and urban character,

and a majority of the residents are Natives.

Sec. 1611.

(a)(1) During a period of three years from Decem-

ber 18, 1971, the Village Corporation for each Native vil-

lage identified pursuant to section 1610 of this title shall

select, in accordance with rules established by the Secre-

tary, all of the township or townships in which any part

of the village is located, plus an area that will make the

total selection equal to the acreage to which the village is

entitled under section 1613 of this title. The selection

shall be made from lands withdrawn by section 1610(a)

of this title; ...

(2) Selections made under this subsection (a) of this

section shall be contiguous and in reasonably compact

tracts, except as separated by bodies of water or by lands

which are unavailable for selection, and shall be in whole

sections and, wherever, feasible, in units of not less than

1,280 acres. Provided, That the Secretary in his discre-

tion and upon the request of the concerned Village Corpo-

ration, may waive the whole section requirement where—

47a

(A) (i) a portion of available public lands of a section

is separated from other available public lands in the same

section by lands unavailable for selection or by a mean-

derable body of water;...

Sec. 1612.

(a) The Secretary shall survey the areas selected or

designated for conveyance to Village Corporations pur-

suant to the provisions of this chapter. He shall monu-

ment only exterior boundaries of the selected or desig-

nated areas at angle points and at intervals of approxi-

mately two miles on straight lines. No ground survey or

monumentation will be required along meanderable water

bodies.

Sec. 1616.

(d)(2)(E) Notwithstanding any other provision of

this subsection, initial identification of lands desired to

be selected by the State pursuant to the Alaska Statehood

Act and by the Regional Corporations pursuant to sec-

tion 1611 of this title may be made within any area with-

drawn pursuant to this subsection (d), but such lands

shall not be tentatively approved or patented so long as

the withdrawals of such areas remain in effect: Provided,

That selection of lands by Village Corporations pursuant

to section 1611 of this title shall not be affected by such

withdrawals and such lands selected may be patented and

such rights granted as authorized by this chapter... .

ALASKA NATIONAL INTEREST LANDS

CONSERVATION ACT

43 U.S.C. secs. 1631 et seq.

See. 1631.

(a) Notwithstanding any other provision of law, the

ownership by a Native Corporation or Native Group of a

parcel of submerged land conveyed to such Corporation

or Group pursuant to the Alaska Native Claims Settle-

48a

ment Act or this Act, or a decision by the Secretary of

the Interior that the water covering such parcel is not

navigable, shall not be subject to judicial determination

unless a civil action is filed in the United States District

Court within five years after the date of execution of the

interim conveyance if the interim conveyance was exe-

cuted after December 2, 1980, or within seven years after

December 2, 1980, if the interim conveyance was executed

on or before December 2, 1980. If a parcel of submerged

land was conveyed by a patent rather than an interim

conveyance, the civil action described in the preceding sen-

tence shall be filed within five years after the date of

execution of the patent if the patent was executed after

December 2, 1980, or within seven years after December

2, 1980, if the patent was executed on or before December

2, 1980. The civil action described in this subsection shall

be a de novo determination of the ownership of the parcel

which is the subject of the action.

(b) No agency or board of the Department of the In-

terior other than the Bureau of Land Management shall

have authority to determine the navigability of water

covering a parcel of submerged land selected by a Native

Corporation or Native Group pursuant to the Alaska Na-

tive Claims Settlement Act unless a determination by the

Bureau of Land Management that the water covering a

parcel of submerged land is not navigable was validly

appealed to such agency or board prior to December 2,

1980. The execution of an interim conveyance or patent

by the Bureau of Land Management conveying a parcel

of submerged land to a Native Corporation or Native

Group shall be the first agency action with respect to a

decision by the Secretary of the Interior that the water

covering such parcel is not navigable, unless such deci-

sion was validly appealed prior to December 2, 1980, to

an agency or board of the Department of the Interior

other than the Bureau of Land Management.

(ec) If the court determines that a parcel of submerged

land which is the subject of a civil action described in

49a

subsection (a) of this section is owned by the Native Cor-

poration or Native Group to which it was conveyed pursu-

ant to the Alaska Native Claims Settlement Act or this

Act, each defendant Native Corporation and Native

Group shall be awarded a money judgment against the

plaintiffs in an amount equal to its cost and attorney’s

fees, including costs and attorney’s fees incurred on ap-

peal.

(d) No Native Corporation or Native Group shall be

determined to have been conveyed its acreage entitlement

under the Alaska Native Claims Settlement Act until—

(1) the statutes of limitation set forth in subsection

(a) of this section have expired with respect to every

parcel of submerged land conveyed to such Corpora-

tion or Group; and

(2) a final judgment or order not subject to an ap-

peal has been obtained ir every civil action filed pur-

suant to subsection (a) of this section.

(e)(1) Whenever a parcel of submerged land to be

conveyed to a Native Corporation or Native Group is lo-

cated outside the boundaries of a conservation system until

such Corporation or Group and the State of Alaska may

mutually agree that such parcel may be selected by and

conveyed to the State under the provisions of section 6(b)

of the Alaska Statehood Act.

(2) In any instance in which the State could have se-

lected a parcel of submerged land pursuant to an agree-

ment between the State and a Native Corporation or Na-

tive Group pursuant to paragraph (1) if such parcel had

not previously been conveyed to such Corporation or

Group, such Corporation or Group is authorized to re

convey such parcel to the Secretary, and the Secretary

shall accept such reconveyance. If the surface estate and

subsurface estate of such parcel are owned by different

Native Corporations or Native Groups, every Corporation

and Group with an interest in such parcel shall reconvey

its entire interest in such parcel to the Secretary.

50a

(3) In any agreement made between a Native Corpora-

tion or Native Group and the State of Alaska pursuant to

paragraph (1), and in any reconveyance executed by a

Native Corporation or Native Group pursuant to para-

graph (2), each affected Corporation or Group shall dis-

claim its interest in the parcel which is the subject of

the agreement or reconveyance. If such parcel underlies

a lake having a surface area of fifty acres or greater or

a stream having a width of three chains or greater, the

Secretary shall determine the acreage contained in the

pareel. If such parcel underlies a lake having a surface

area of less than fifty acres or a stream having a width

of less than three chains, the Secretary, the State, and

the affected Native Corporation or Native Group shall

determine the acreage contained in the parcel by mutual

agreement. The ailected Native Corporation or Native

Group shall receive replacement lands in an amount equal

to the acreage of the parcel as determined by the process

set forth in this paragraph.

(4) Upon receipt by the Secretary of an agreement ex-

ecuted pursuant to paragraph (1) or a reconveyance exe-

cuted pursuant to paragraph (2), the parcel which is the

subject of the agreement or reconveyance shall be deemed

vacant, unappropriated, and unreserved public land avail-

able for selection by the State pursuant to section 6 of

the Alaska Statehood Act, and the State is authorized to

file a land seleetion application for such parcel pursuant

to section 6(b) of the Alaska Statehood Act. The acreage

within such parcel shall be charged against the State’s

land entitlement. If the water covering a parcc: of sub-

merged land selected by or conveyed to the State pursuant

to this subsection is iater determined by a court of com-

petent jurisdiction to be navigable and title to such parcel

to be vested in the State pursuant to section 6(m) of the

Alaska Statehood Act, such selection or conveyance shal]

not diminish the State’s land entitlement under section

6(b) of the Alaska Statehood Act, nor shall such judicial

determination of navigability affect the land entitlement

5la

of any Native Corporation or Native Group pursuant to

the Alaska Native Claims Settlement Act. Land selec-

tions made by the State pursuant to this subsection shall

not be subject to the size limitations of section 6(g) of

the Alaska Statehood Act or this Act. Notwithstanding

the survey requirements of section 6(g) of the Alaska

Statehood Act and section 18 of the Alaska Native Claims

Settlement Act, no ground survey or monumentation shall

be required on any parcel selected by and conveyed to the

State or excluded from a conveyance to any Native Cor-

poration or Native Group pursuant to this subsection.

(5) Any Native Corporation or Native Group which is

entitled to receive conveyance of replacement acreage in

lieu of acreage within a parcel of submerged land relin-

quished or reconveyed pursuant to this subsection shall re

ceive conveyance of such replacement acreage from

among existing selection made by such Corporation or

Group pursuant to the Alaska Native Claims Settlement

Act or this Act. If such selections are insufficient to ful-

fill the acreage entitlement of such Corporation or Group

pursuant to the Alaska Native Claims Settlement Act, the

provisions of section 1410 shall apply to such Corporation

or Group, but no land within the boundaries of a con-

servation system unit shall be withdrawn for such Cor-

poration or Group pursuant to section 1410 unless such

land was withdrawn under section 1l(a) of the Alaska

Native Claims Settlement Act. Any replacement acreage

conveyed to a Native Corporation or Native Group from

lands withdrawn pursuant to section 1410 shall be sub-

ject to the provisions of section 12, 14, 16, 17, and 22 of

the Alaska Native Claims Settlement Act.

(f) The procedures and statutes of limitation set forth

in this section shall not apply to administrative or judicial

determinations of the navigability of water covering a

parcel of submerged land other than a parcel conveyed

to a Native Corporations or Native Group pursuant to the

Alaska Native Claims Sett!cment Act or this Act.

(g) As used in this section, the terms “navigable” and

‘“navigability” means navigable for the purpose of deter-

| | |

52a

mining title to lands beneath navigable waters, as between

the United States and the several States, pursuant to the

Submerged Lands Act of 1953, and section 6(m) of the

Alaska Statehood Act.

(h) Notwithstanding any other provision of law, any

civil action contesting the legality or authority of the

United States to legislate on the subject matter of this

section shall be barred unless the complaint is filed within

one year after December 2, 1980. The purpose of this

limitation on suits is to ensure that, after the expiration

of a reasonable period of time, the right, title, and inter-

est of Native Corporations and Native Groups in sub-

merged lands conveyed to them under the Alaska Native

Claims Settlement Act and this Act will vest with cer-

tainty and finality and may be relied upon by such Cor-

porations and Groups and all other persons in their rela-

tions among themselves and with the State and the United

States.

ALASKA CONSTITUTION

Article VIII

Section 3. Wherever occurring in their natural state,

fish, wildlife and waters are reserved to the people for

common use.

Section 14. Free access to the navigable or public wa-

ters of the State, as defined by the legislature, shall not

be denied any citizen of the United States or resident of

the State, except that the legislature may by general law

regulate and limit such access for other beneficial uses or

public puxposes.