# Petition for Writ of Certiorari — Ahtna, Inc. v. Alaska > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_1225%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1990 - **Citation:** 495 U.S. 919 ## Text 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 & Pan 230 5 nt REND Se ETRE TEL INS ET EINE IN: AENEAN PETA PRI PLY APPENDICES ae, oS 5 : - Bree <7 ¥ ~ SOE Ae H Pe ‘ Sat “oes: a y, 2 = oe . * la 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 Cor [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_1225%3A1. Public record. Not legal advice.