Appendix — Kalerak v. Hickel

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APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 21,629

Stewart L. Upauu, Secretary of the Interior,

Strate or Axaska, Appellants,

vs.

Anprew J. Kauerak, Jz., ARMAND ©. Sprmetman, Ronatp L.

TureL, Ray McCussins, Lawrence McCussins, Carn

B. Fiscus, ‘C. H. Trompiey, Arvin Gary Tavior, Pzar.

GincEricH, Appellees.

[June 19, 1968]

Appea) from the United States District Court

for ihe District of Alaska

Before: Hamiey and Duniway, Circuit Judges, and

Byrner,* District Judge

Ham iey, Circuit Judge:

Andrew J. Kalerak, Jr. and eight other individuals

brought this action in tue district court to set aside a

decision of the Secretary of ihe Interior rejecting their

individual applications for certain tracts of land in the

federal public domain in Alaska. Stewart L. Udall, Sec-

retary of the Interior (Secretary) was named defendant,

and the State of Alaska was thereafter permitted to

intervene as an additional defendant. The facts are not

in dispute. Both sides moved for summary judgment.

The district court granted plaintiffs’ motion and defend-

ants appeal.

*The Honorable William M. Byrne, Senior United States Dis-

trict Judge for the Central District of California, sitting by

designation.

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Under section 6(b) of the Alaska Statehood Act of July

7, 1958 (Act), 72 Stat. 339, 48 U.S.C. ch. 2, §6(b), (1964),

| Alaska is permitted to select over a twenty-five year

period after its admission into the Union, up to 102,550,000

acres from the public lands of the United States in Alaska

which are vacant, unappropriated, and unreserved at the

time of their selection. This litigation concerns a con-

flict between Alaska’s claim to certain of these public

lands, sought to be selected pursuant to section 6(b), and

plaintiffs’ claims to the same lands based upon their re-

spective notices of location of settlement or occupancy for

homestead purposes.

On March 29, 1949, by Public Land Order 576, 14 F.R.

1614, the United States withdrew the lands in question

from appropriation. On January 8, 1963, while the lands

were still withdrawn from appropriation, and therefore

not available for selection by the state under section 6(b),

Alaska filed with the local land office of the Federal Bu-

: reau of Land Management (land ofnce), its application

No. A-058566 for the selection of 26,880 acres of land as

part of its section 6(b) allotment, such selection including

the lands in question. The selection was posted in the

appropriate land and status records.

On April 8, 1963, by Public Land Order 3022, 28 F.R.

3661, the Secretary revoked the withdrawal of the land

and released it for appropriation. Pursuant to section

6(g) uf the Act, this order provided that Alaska be given

a ninety-day preference period (to July 8, 1963) to claim

the land. During the ninety-day period Alaska did not

: file a new application for the selecting of the 26,880 acres

of land (including those here in question) which were

described in its application of January 8, 1963.

Within that period, however, Alaska filed with the land

office two letters requesting that its original application

No. A-058566 be amended to embrace certain described

lands, none of which were described in the original ap-

plication. These letters were filed on April 8 and May

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24, 1963. After the expiration of that ninety-day period,

Alaska filed in the same office two more letters (March 16

and 17, 1964), making similar requests with respect to

other lands not described in any of the previous applica-

tions.

On October 8, 1964, the land office directed that Alaska

publish a notice of its application in an Anchorage news-

paper for five consecutive weeks. The publication was

carried out within the time allowed and described all

lands applied for, including those described in the orig-

inal application.

Between May 27 and June 17, 1965, Kalerak and the

other plaintiffs sought to file with the land office their

Notice of Location of Settlement or Occupancy Claim.

The land office refused to accept plaintiffs’ notices for

recordation. The Bureau of Land Management, on appeal,

reversed the decision of the land office. The Secretary,

in an appeal by Alaska, reversed the decision of the Bu-

reau of Land Management, thereby restoring the decision

of the land office that the tendered notices of the plain-

tiffs should not be filed. The district court judgment here

under review, in turn, reversed the decision of the Sec-

retary, thereby holding that plaintiffs’ claims to the lands

in question should prevail over Alaska’s claim.

In connection with the problem arising from the fact

that Alaska’s original application for selection was filed

at a time when the lands were withdrawn from selection,

the Secretary held, aiternatively:

(1) Whether or not Alaska’s original selection was de-

fective because made with reference to lands which were

then withdrawn, it nevertheless accomplished a segregation

of those lands such that they were not subject to applica-

tions and appropriations under the public land laws, the re-

sult being that plaintiffs’ claims for settlement or location,

made while such segregation was in effect, were invalid;

and

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(2) Alaska’s four emendments of its original applica-

tion for selection, made after the withdrawal of the lands

had been revoked, amounted to a re-application for selec-

tion of the lands described in the original application, the

result being that plaintiffs’ claims, subsequently tendered

for filing, were properly rejected.

The district court declined to accept either of these rul-

ings by the Secretary.

In our opinion the district court erred in failing to

accept the second of these rulings. While Alaska’s four

amendments of the original application did not include the

land descriptions set out in the criginal application, the state

intended such amendments as a reassertion of the original

land descriptions as well as applications for the selection

of additional lands. This is indicated by the facts that:

(1) the new lands were brought in by amendment of the

original application (referring thereto by number), rather

than by new applications, (2) the améndments referred

to ‘‘additional open lands,’’ indicating Alaska’s view that

it wished to select the lands described ih the original ap-

plication, and add thereto, and (3) the notice published

after the four amendments had been filed, and before any

of the plaintiffs tendered their claims for filing, named all

lands described in the original application as well as the

four amendments.

In view of Alaska’s intent in this regard, and the lack

of prejudice to plaintiffs inasmuch as they had notice

of Alaska’s claim to all such lands before they tendered

their claims, the Secretary did not abuse his discretion in

accepting the amendments as a timely reassertion of

Alaska’s original application.'

1 We need not decide whether the district court erred in declin-

ing to accept the Secretary’s alternative ruling that Alaska’s origi-

nal application, even if defective, accomplished a segregation of

of lands which prevented plaintiffs from acquiring rights therein

while the segregation remained in effect.

5a

Apart from plaintiffs’ challenge to Alaska’s claim based

on the circumstance that the lands were withdrawn at the

time of the original application, plaintiffs argue that

since Alaska sought the lands in question to assist the

City of Anchorage in protecting its water supply, its

selection was invalid because in violation of the alienation

prohibition of section 6(g) of the Act and in derogation

of the Equal Protection Clause of the Fourteenth Amend-

_ Ment.

On March 8, 1962, the City of Anchorage made a re-

quest of the land office that the lands in question be with-

drawn for watershed purposes. In a letter dated Septem-

ber 28, 1962, addressed to the State Division of Lands,

the state office of the Bureau of Land Management stated

that the city was not a proper applicant. In this letter

it was also suggested that the state might file a blanket

selection for the withdrawn lands with an assurance that

the selected lands would be classified for watershed pur-

poses. Responsive to this suggestion the state filed its

application of January 8, 1963, for the selection of 26,880

acres of public land.

In arguing that, under these circumstances, Alaska’s

selection of these lands is in violation of section 6(g),

plaintiffs call attention to the provision of that section

that:

‘‘The authority to make selections shall never be

alienated or bargained away, in whole or in part, by

the State of Alaska.’’

The Secretary rejected this contention, holding that

there was no evidence to support the charge that Alaska

had, or intended to, alienate or bargain away its section

6(b) power to select public lands. The district court

expressed no view on this point.

We are in agreement with the Secretary. The selection

was made by Alaska in its own name and, insofar as the

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record shows, not subject to any contract, conveyance or

other transaction with the City of Anchorage. The lands

in question were initially subject to Public Land Order No.

576, 13 F.R. 1614, for the protection of the water supply

of the Anchorage area. The steps thereafter taken by

Alaska, as described above, were designed and intended

to fulfill this intent. The fact that the interests of the

state and of its political subdivision, the City of Anchorage,

coincide, is without legal significance and, on this record,

in no sense evidences a violation of the prohibition against

alienation contained in section 6(g).

With regard to its equal protection argument, plaintiffs

note that, under section 6(a), Alaska is permitted to select

some 800,000 acres of land for the purposes of furthering

the development and expansion of its communities. In

view of this provision, and of the limitation upon the

number of acres Alaska is entitled to select under section

6(b), plaintiffs contend that Alaska’s intent to use the lands

here in question to protect Anchorage’s water supply dis-

criminates against the rest of the state and the citizens

thereof.

Neither the Secretary nor the district court discussed

this argument. We conclude that it is without merit.

The purpose of the land grants under the Act is to serve

Alaska’s overall economic and social well-being. Some

of the lands so selected will probably be used to protect

mineral deposits. Others will safeguard wildlife. Still

others will be used to protect domestic water supplies.

The lands in question fall in the latter category and are

designed to serve the most populous area of the state. No

deprivation of the equal protection of the laws is remotely

involved.

Reversed.

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APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

No. A-35-66 Civil

Anprew J. Kaerak, Jr., ARMAND C. Spretman, Ronan L.

Tutt, Ray McCussins, Lawrence McCussins, Carn

B. Fiscus, C. H. Trometey, Arvin Gary Taytor, PEarn

GincericuH, Plaintiffs,

VS.

Stewart L. Upauu, Secretary of Interior,

State or Ataska, Defendants.

Memorandum of Decision

The plaintiffs seek judicial review of the final decision

of the Secretary of the Department of Interior file Jan-

uary 20, 1966.

This court has authority to review the Secretary’s deci-

sion under the Administrative Procedure Act, 5 U.S.C.A.

§ 1001, et seq.; Adams v. Witmer, 271 F.2d 29 (9th Cir.

1959); and Denison v. Udall, 248 F. Supp. 942 (D. Ariz.

1965).

The scope of the review authorized by the Administra-

tive Procedure Act is whether the agency’s action, find-

ings and conclusions were arbitrary, capricious, an abuse

of discretion, or otherwise not in accordance with law;

in excess of statutory jurisdiction, authority, or limita-

tions, or shori of statutory right; or without observance

of procedure required by law. Cf. Coleman v. United

States, Opinion No. 20,227, United States Court of Ap-

peals for the Ninth Circuit, June 21, 1966.

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On January 8, 1963, while the land here involved was

withdrawn from all forms of appropriation by virtue of

PLO 576, dated March 29, 1949, 14 Fed. Reg. 1614, an

application for selection of such land was filed with the

Anchorage Land Office by the State of Alaska.

On April 8, 1963, the Secretary of Interior issued PLO

3022, 24 Fed. Reg. 3661, revoking the withdrawal estab-

lished by paragraph (4) of PLO 576, supra.

During the 90 day period from April 8, 1963, until 10:00

a.m. on July 8, 1963, no selection of the lands involved in

this case was made by the State. During the 90 day period

the State did amend its application but such amendments

merely added to the lanc described in the January 8,

1963, application and did not mention the land that is

here in controversy.

On May 27,1965, more than 22 months after the expira-

tion of the preference period granted the State by sec-

tion 6(g) of the Alaska Statehood Act, Andrew Kalerak,

Jr., and others filed notices of location of settlement or

occupancy claims with the Anchorage Land Office.

Subsequent to the date of the filing of Kalerak’s loca-

tion notice, the State top-filed a blanket selection, Serial

No. 062905, over the same area as its first filing, including

the area embraced by Kalerak’s location notice.

On June 9, 1965, by a letter-decision, the Land Office

held that Kalerak’s location notice was unacceptable for

- recordation because the lands described in his claim were

included in a valid selection by the State and therefore

were segregated from all applications and appropriations

under the public land laws. On appeal, the Office of Ap-

peals and Hearings rejected the State’s selection applica-

tion insofar as it included lands described in paragraph

(4) of PLO 576, supra, and reversed the Land Office

decision insofar as it refused to accept the notice of loca-

tion for recording.

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On appeal to the Secretary of Interior the Secretary, on

January 20, 1966, reversed the decision of the Chief, Of-

fice of Appeals and Hearings, Bureau of Land Manage- ;

ment, and affirmed the decisions of the Land Office re-

fusing the several notices of occupancy or settlement.

The Secretary in his decision of January 20, 1966, ap-

parently relying on section 76.16 of 43 C.F.R., concluded

that the selection filed by the State on January 8, 1963,

which was accepted by the Land Office and posted on the

public land record, segregated the land from all appropria-

tions based on settlement and location so long as it re- :

mained of record, despite the fact that the selected land ‘

was in a withdrawal at the time the State filed its selec-

tion.

In his decision the Secretary recognized the general rule

that an application made for land while it is withdrawn ;

is invalid and does not become valid upon the revocation ;

of the withdrawal. However, he concluded that the rule

against premature filings was adopted for administrative 4

convenience and to insure equality of opportunity to file 4

and where these considerations were not present, amend-

menis to a premature application filed by the State during

a statutory preference right period could thereafter be

accepted as reaffirmations of the original filing and treated

as though the State had refiled its original application at :

the time of the amendments.

The facts are not in dispute. The parties have each

moved for summary judgment on the grounds that there

is no genuine issue as to any material fact and that judg-

ment should be entered as a matter of law.

The issues for determination are, (1) whether the ap- i

plication for selection filed by the State of Alaska on

January 8, 1963, insofar as it embraced lands withdrawn

by PLO 576, supra, was a valid selection in accordance

with the provisions of the Act of July 28, 1956 (70 Stat.

709, 48 U.S.C.A. § 46-3b), and §6(g) of the Alaska State-

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hood Act of July 7, 1958 (72 Stat. 339), hereinafter re-

ferred to as the Act, and the regulations in 43 C.F.R. part

76; and (2) whether the State’s application of January 8,

1963, segregated the land involved and effectively closed

the land to subsequent appropriation.

The function of judicial review of administrative orders

is a dispassionate and disinterested adjudication unmixed

with any concern as to the success of any of the respective

parties. United States v. Morton Salt Co., 338 U.S. 632,

640-641 (1950).

The Act of June 25, 1910, (56 Stat. 847; 43 U.S.C.A.

§ 141) provides as follows:

‘‘The President may, at any time in his discretion,

temporarily withdraw from settlement, location, sale,

or entry any of the public lands of the United States,

including Alaska, and reserve the same for water-

power sites, irrigation, classification of lands, or other

public purposes to be specified in the orders of with-

diawals, and such withdrawals or reservations shall

remain in force until revoked by him or by an act of

Congress.’ (Emphasis supplied.)

Executive Order No. 9337 of April 24, 1943, subsequently

superseded by Executive Order No. 10355 of May 26, 1952,

authorized the President to delegate to the Secretary of

the Interior the authority vested in him by 43 U.S.C.A.

§ 141.

As stated above, by PLO 576, supra, the lands here in

controversy were withdrawn from all forms of appropri-

ation under the public land laws. Lands which have been

withdrawn for a lawful purpose are not public lands and

are to be regarded as excepted from subsequent laws,

grants and disposals which do not specially disclose a

purpose to include them. The withdrawal created by

PLO 576 therefore remained in force until revoked in

part by PLO 3022 on April 8, 1963.

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The Alaska Statehood Act, supra, provided for the ad-

mission of the State of Alaska into the Union. Section

4 of the Act provided in part:

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 subdivisions by or under the authority of

this Act, the right or title to which is held by the

United States or is subject to disposition by the United

States,....

Section 6(b) of the Act provides:

The State of Alaska, in addition to any other grants

made in this section, is hereby granted and shall be

entitled to select, within 25 years after the admission

of Alaska into the Union, not to exceed 102,550,000

acres from the public lands of the United States in

Alaska which are vacant, unappropriated, and unre-

served at the time of their selection: ... {Emphasis

supplied.)

Section 6(g) of the Act provides as follows:

Upon the revocation of any order of withdrawal in

Alaska, the order of revocation shall provide for a

period of not less than 90 days before the date on

which it otherwise becomes effective, ... during which

period the State of Alaska shall have a preferred

right of selection, subject to the requirements of this

Act .... (Emphasis supplied.)

It is readily apparent that section 6(b) and section 6(g)

of the Act deal with two vastly different and distinct

types or classes of land. Section 6(b) pertains to public

lands of the United States in Alaska which are vacant, un-

appropriated, and unreserved at the time of their selec-

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tion, while section 6(g) pertains to lands which have been

withdrawn from all forms of appropriation under the

public land laws.

Congress in section 6(g) has stated in clear and unam-

biguous language that where the land has been withdrawn

that upon the revocation of the order of withdrawal tie

State shall have not less than 90 days, during which period

the State shall have a preferred right of selection. Where,

as here, Congress las expresse¢ itself in clear and un-

ambiguous language it must be held to have meant what

it plainly expressed.

Nothing is contained in the legisiative history of the Act

that wouid indicate thet Congress intended that the State,

with respect to withdrawn lands, should have any right

of preference greater than that expressly set forth in

section 6(g). U.S. Code Cong. & Ad. News, 1958, Vol. 2,

pp. 2933-3009,

423 U.S.C.A. § 1201 provides that:

The Secretary of the Interior, or such officer as he

may designate, is authorized to enforce and carry

into execution, by appropriate regulations, every part

of the provisions of this titie not otherwise specifically

provided for.

Actirg pursuant to this authority the Secretary pre-

scribed ceriain reguiations and published the same in the

Federal Register on June 9, 1959, 24 Fed. Reg. 4657.

Section 76.15 of 43 C.F.R. provides in pertinent part as

follows:

(a) The acts of July 28, 1956 (see §7€ , and July

7, 1958 (see § 76.11), provide that upon the revocation

of any order of withdrawai in Alaska, the order of

revocation shall provide for a period of not less than

90 days before the date on which it otherwise becomes

13a

effective during which period the State of Alaska

shall have a preferred right of selection under the

acts of 1956 and 1958,....

The language in this regulation is for all intents and

puipeses identical to that contained in section 6(g) of

the Act. The words ‘‘upon’’ and ‘‘during which period”’

are words of common usage and understanding and have

no obscure or hidden meaning.

Section 76.16 of part 43 C.F.R. in substance provides

that lands desired by the State will be segregated from

all appropriations when the State files its application for

selection in the appropriate land office. This regulation

is valid insofar as public lands of the United {tates in

Alaska which are vacant, unappropriated and unreserved

at the time of their selection are concerned. The regulation

does not, however, apply to lands that are withdrawn from

all forms of appropriation under the public land laws

such as those involved in the present case. To so hold

would be to add to section 6(g) something vastly different

than that expressed or intended by Congress. This would

be a distortion of congressional intent rather than aa in-

terpretation.

The regulations of an agency of the United States must

be within the powers conferred by Congress. If the

agency regulations go beyond what Congress has author-

ized, they are void. Federat Maritime Commission v.

Angio-Canadian Shipping Co., 355 F.2d 255 (9th Cir. 1964).

To extend the segregative effect of section 76.16 of C.F.R.

to withdrawn lands as well as to vacant, unappropriated

and unreserved lands, wouid result in a preference right

far beyond that contemplated or authorized by Congress

in section 6(g) of the Act and would therefore be void.

There :s no safer nor better canon of interpretation than

that when language is clear and unambiguous it must be

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held io mean what it plainly expresses. (Cf. Easson v.

C.I.R., 294 F.2d 653 (9th Cir. 1961).

It is evident that the Secretary of the Interior experi-

enced no difficulty in understanding the meaning and intent

of section 6(g) of the Act and section 76.15 of 43 C.F.R.

On April 8, 1963, the Secretary issued PLO 3022, 28 Fed.

Reg. 3661, revoking the withdrawal made by paragraph

(4) of PLO 576.

PLO 3022, in pertinent part, provides:

By virtue of the authority vested in the President

and pursuant to Executive Order No. 10355 of May

26, 1952, it is hereby ordered as follows:

1. Public Land Order No. 576 of March 29, 1949,

so far as it withdrew in paragraph numbered four

thereof, an area of approximately 17,800 acres in Tps.

11 and 12 N., Rs. 1 and 2 W., Seward Meridian, for

the protection of the water Supply of the city of

Anchorage, is hereby revoked.

3. Subject to any existing valid rights and the re-

quirements of applicable law, the public lands are

hereby opened to settlement and to filing of such ap-

plications, selections, and locations as are allowable

on unsurveyed lands in accordance with the following:

a. Until 10:00 a.m. on July 8, 1963, the State of

Alaska shall have a preferred right to select the lands

in accordance with provisions of the Act of July 28, ©

1956 (70 Stat. 709; 48 U.S.C. 46-3b), and section 6(g)

of the Alaska Statehood Act of July 7, 1958 (72 Stat.

339), and the regulations in 43 C.F.R. Part 76.

5. The lands will be subject to the operation of the

public land laws generally, including location under

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the United States mining laws, beginning at 10:00

a.m. on July 8, 1963....

Whether it is appropriate to say that PLO 3022 is the

contemporaneous and practical interpretation given sec-

tion 6(g) of the Act is of no consequence. The significance

of PLO 3022 is the fact that therein the Secretary, in

clear and precise language, set forth his understanding

of the requirements of section 6(g) of the Act.

In Udall v. Tallman, 380 U.S. 1 (1965), the Supreme

Court of the United States, in discussing the interpreta-

tion of executive and public land orders by the Secretary

of the Interior, stated as follows (at p. 4):

The Secretary’s interpretation may not be the only

one permitted by the language of the orders, but it

is quite clearly a reasonable interpretation; courts

must therefore respect it... . (Citations omitted.)

The Court also stated (at p. 16):

When faced with a problem of statutory construc-

tion, this Court shows great deference to the inter-

pretation given the statute by the officers or agency

charged with its administration. ‘‘To sustain the

Commission’s application of this statutory term, we

need not find that its construction is the only rea-

sonable one, or even that it is the result we would

have -2ached had the question arisen in the first in-

stance in judicial proceedings.”’ . . .. (Citations

omitted.)

The Court quoted from its earlier decisions in holding

(at pp. 16-17):

‘‘Particularly is this respect due when the adminis-

trative practice at stake ‘involves a contemporaneous

construction of a statute by the men charged with

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the responsibility of setting its machinery in motion,

of making the parts work efficiently and smoothly while

they are yet untried and new.’ ’’ (Citation omitted.)

When the construction of an administrative regulation

rather than a statute is in issue, deference is even

‘more clearly in order.

‘‘Since this involves an interpretation of an admin-

istrative regulation a court must necessarily 'ook to

the administrative construction of the regulation if

the meaning of the words used is in doubt.... [T]he

ultimate criterion is the administrative interpretation,

which becomes of controlling weight unless it is plainly

erroneous or inconsistent with the regulation.’”’....

(Citation omitted.)

The Secretary’s construction, interpretation or state-

ment of his understanding of the express purpose and

intent of section 6(g) of the Act and the regulations in

43 C.F.R. part 76, as evidenced by PLO 3022, is the only

reasonable one and is wholly consistent with the Act and

regulations. It should therefore be controlling, as to the

issues to be determined in this case, on this court and the

subordinate officials of the Department of Interior.

Had the Secretary thought that section 76.16 of part

43 C.F.R. segregated the lands desired by the State from

subsequent appropriation as of the time when the State

filed its application for selection, he most assuredly would

not, on April 8, 1963, have (1) ordered the lands opened

to settlement subject to a 90 day preferred right of selec-

tion on the part of the State; (2) ordered that from April

8, 1963, until 10:00 a.m. on July 8, 1963, the State of Alaska

had a preferred right to select the lands in accordance

with the provisions of the Act of July 28, 1956 (70 Stat.

709; 48 U.S.C. 46-2b), and section 6(g) of the Alaska

Statehood Act of July 7, 1958 (72 Stat. 339), and the

regulations in 43 C.F.R. part 76; or (3) ordered that

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beginning at 10:00 a.m. on July 8, 1963, the lands would

be subject to the operation of the public land laws generally,

including location under the United States mining laws.

Regardless of any reliance that the State may have placed

on the Bureau of Land Management’s interpretation of

the statute and applicable regulations prior to April 8,

1963, no reason existed from that day forward to justify

reliance on the practices, understanding, notices, agree-

ments or interpretation which existed between the City,

the State and the Bureau of Land Management. Section

6(g) of the Act, section 76.15 of the regulations and the

provisions of PLO 3022 specifically and clearly spelled

out what steps the State was required to take to obtain

a preferred right of selection and the precise period of

time within which such right had to be exercised. In

view of this, the State cannot seriously contend that it

was not necessary for it to comply with the law and to d

exercise its preferred right of selection during the 90 day

period afforded it between April 8, 1963, and 10:00 a.m.

on July 8, 1963.

The court concludes as follows:

1. The application filed by the State on January 8, 1963,

was not a selection of the lands in accordance with the

provisions of the Act of July 28, 1956 (70 Stat. 709; 48

U.S.C. 46-3b), and section 6(g) of the Alaske. Statehood

Act of July 7, 1958 (72 Stat. 339), and the regulatiors in

43 C.F.R. part 76. ~

2. The application filed by the State on January 8, 1963,

was at the most only a request that paragraph 4 of PLO

576 be revoked and the application did not segregate the

land from subsequent appropriation.

3. The State did not exercise the preferred right of

selection afforded it by section 6(g) of the Act, section

76.15 of part 43 C.F.R. and PLO 3022.

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4. The application filed by the State on January 8, 1963,

was a nullity. The so-called amendments, or additional

selections during the 90 day period, which did not em-

brace the lands selected on January 8, 1963, did not serve

to validate the prior void selection.

5. Beginning at 10:00 am. on July 8, 1963, the lands

became subject to the operation of the public land laws

generally, including location under the United States mining

laws.

6. Thereafter the plaintiffs’ notices of location or oc-

cupancy were duly tendered for filing and should now be

accepted for recordation.

7. The decision of the Secretary of the Interior filed

on January 20, 1966, is not in accordance with law and,

under the circumstances reflected by the administrative

record, is arbitrary and capricious; in excess of statutory

authority and limitations and short of statutory right; and

without observance of precedure required by law, and

should be set aside.

Accordingly, counsel for plaintiffs, within 15 (fifteen)

days from the date of this memorandum of decision, shall

prepare, serve and submit for the court’s approval an

appropriate form of summary judgment reversing the

decision of the Secretary of the Interior filed January

20, 1966, and remanding this matter to the Manager of

the Anchorage District Land Office for proper recordation

on the records of the Land Office and for other action as

is necessary to establish the prior claim of the plaintiffs

herein for homestead entry and location and trade and

manufacturing entry and location, and that such be ac-

cepted for recordation in such office and that the decision

of the Chief of the Office of Appeals and Hearings of the

Bureau of Land Management be affirmed in all regards.

Although certain assertions appearing in the record

did not enter into the court’s consideration of the merits

19a

of the case, the court makes the following comments with

reference thereto.

It is asserted that the State is being deprived of its

preferred right by a mere technicality. It appears to the

court that a more accurate statement would be that this

right was lost by the failure of the State to exercise

the right in the manner required by law.

It is also asserted that the State and City of Anchorage

will lose irreplaceable watershed land on the basis of what

might be considered, at the most, slightly irregular pro-

cedure. This is regrettable, if true, but it is not a factor

which the court can properly consider in determining the

issues presented. It would seem that if, in fact, the lands

are necessary for an essential public use or purpose, the

State, under its power of eminent domain, as it presently

exists, or under appropriate legislative amendments, could

acquire the land for watershed purposes.

Raymonp KE. PLuMMER

United States District Judge

Dated and entered: Oct. 20, 1966

Copies mailed to:

Messrs. Hughes, Thorsness & Lowe

Richard L. MeVeigh, U. S. Attorney

Theodore E. Fleischer, Asst. Attorney General

Filed October 20, 1966,

J. M. Kgonrncer, Clerk.

an ie

Sane cata lies |

PHOT RITE ATONE ON cent

20a

APPENDIX C

UNITED STATES DEPARTMENT OF THE INTERIOR

OFFICE OF THE SECRETARY

WASHINGTON, D. Cc. 20240

A-30518 : Anchorage 058566, 062515

State of Alaska: State selection rejected

Andrew Kalerak, Jr.: Reversed

Appeal From the Bureau of Land Management

The State of Alaska has appealed to the Secretary of

the Interior from a decision dated July 20, 1965, of the

Chief, Office of Appeals and Hearings, Bureau of Land

Management, rejecting in part its selection application

Anchorage 058566 and reversing a decision dated June 9,

--1965, of the Anchorage district and land office refusing to

accept for recordation a notice of location of a settlement,

Anchorage 058566, submitted by Andrew Kalerak, Jr., for

lands in conflict with the State’s selection.

In addition, Ray W. McCubbins and 10 others have also

appealed to the Director of the Bureau of Land Manage-

ment from letter decisions of the Anchorage district and

land office refusing to accept their respective notices of

settlement or occupancy claims.' Because in our view the

1 The names of the applicants, serial numbers, and type of claim

are as follows:

Anchorage Date Received

Ray W. McCubbins 062524 Homestead May 28, 1965

Lawrence McCubbins 062558 Homestead June 7, 1965

*Carl B. Fiscus 062609 Homestead June 7, 1965

Lawrence J. Wolfgram 062614 Trade & Mfg. Site June 11, 1965

Lawrence J. Wolfgram 062622 Homestead June 14, 1965

Ronald L. Thiel 0€2624 Trade & Mfg. Site June 14, 1965

Ronald L. Thiel 062625 Homestead June 14, 1965

Armand C. Sipielman 062627 Homestead June 15, 1965

Arvil Gary Taylor 062629 Homestead June 15, 1965

Gerald Baxter 062639 Homestead June 16, 1965

C. H. Trombiey 062649 Homestead June 17, 1965

* Fiscus filed a relinquishment of his claim on December 6, 1965.

21a

legal issue governing the disposition of the case on appeal

to the Secretary is the same as that in the cases on appeal

to the Director, they will be considered and decided with

the pending appeal.?

The lands selected by the State, a small part of which is

also sought by the individual applicants, cover approxi-

mately 20,000 acres in Ts. 11 and 12 N., Rs. 1 and 2 W.,

Seward Meridian, Alaska, most of which had been with-

drawn by paragraph (4) of the Public Land Order No.

976 of March 29, 1949, 14 F.R. 1614, from all forms of

appropriation for the protection of the water supply of the

City of Anchorage.

The attempt to transfer the selected lands from the

Federal Government to the State began, apparently, with

a request of March 8, 1962, of the City of Anchorage to the

Anchorage land office that these lands be withdrawn for

watershed purposes for the protection of the city’s water

supply. In a letter dated September 28, 1962, to the State

Division of Lands, the State office of the Bureau of Land

Management said that the city was not a proper applicant

for a withdrawal and that most of the land it desired was

already withdrawn or otherwise segregated. It then offered

as a suggestion for placing the lands in State or local owner-

ship that the State file a blanket selection for the withdrawn

lands with an assurance that the selected lands would be

classified for watershed purposes. The Bureau would then,

the letter continued, request revocation of paragraph (4) of

P.L.O. 576 and, when that was done, the State selection

would become effective immediately.

* The Secretary of the Interior may in the exercise of his super-

visory authority assume jurisdiction over a case pending on appeal

before the Director of the Bureau of Land Management without

awaiting a decision by the Director and a subsequent appeal from

that decision. Public Service Company of New Mezico, 71 I.D. 427

(1964); U. S. v. M. V. Browning, Administrator, 68 I.D. 183

(1961).

Nt LL ID Ae ID Baie 0 Kee A

22a

The Director of the State Division of Lands informed

the land office on January 8, 1963, that the suggested plan

was agreeable to the State and the city. On the same day

the State filed a formal selection application, A-058566,

pursuant to section 6(b) of the act of July 7, 1958, 72 Stat.

739, 48 U.S.C. pp. 9025, 9026,* for 26,880 acres of public

land.*

In accordance with the regular practice the State’s se-

lection was posted in the appropriate land and status

records.

On April 8, 1963, the Department issued P.L.O. 3022, 28

F.R. 3661, revoking the withdrawal made by paragraph

(4) of P.L.O. 576, supra. The order also provided:

‘*3. Subject to any existing valid rights and the re-

quirements of applicable law, the public lands are

hereby opened to settlement and to filing of such appli-

cations, selections, and locations as are allowable on

unsurveyed lands in accordance with the following:

a. Until 10:00 a.m. on July &, 1963, the State of

Alaska shall have a preferred right to select the lands

in accordance with provisions of the Act of July 28,

i956 (70 Stat. 709; 48 U.S.C. 46-3b), and section 6(g)

ot the Alaska Statehood Act of July 7, 1958 (72 Stat.

339), and the regulations in 43 CFR Part 76.

b. All other valid applications and selections under

the nonmineral public lands laws including applica-

tions and offers under the mineral leasing laws for

those lands described in Paragraph 1 hereof, presented

® Section 6(b) granted to the State and entitled it to select not

more than 102,550,000 acres from the public lands which are

‘‘vacant, unappropriated, and unreserved at the time of their

selection.’”

*In the next 14 months the State filed four amendments adding

tracts of various sizes to its selection application. April 8, 1963—

950 acres; May 24, 1963—640 acres; March 13, 1964—3,777 acres;

March 17, 1964—<certain lands restored by P.L.O. 314, 29 F.R.

1327.

23a

at or prior to 10:00 a.m. July 8, 1963, will be consid-

ered as simultaneously filed at that hour. Rights

under such applications and selections filed after that

hour. will be governed by the time of filing.

4. Persons claiming preference rights based upon

valid settlement, statutory vreference, or equitable

cle*ms must enclose properl) corroborated statements

in support of their applications, setting forth all facts

relevant to their claims.

9. The lands will be subject to the operation of the

public land laws generally, including location under

the United States mining laws, beginning at 10:90

a.m. on July 8, 1963. The lands described in Para-

graph 2 hereof, have been open to applications and

offers under the mineral leasing laws

Inquiries concerning the lands should be addressed to

the Manager, Land Office, Bureau of Land Manage-

ment, Anchorage, Alaska.’’ 5

On October 8, 1964, the land office issued a decision di-

recting that the State publish a notice of its application in

an Anchorage newspaper for five consecutive weeks.®

5 Section 6(g) of the act of July 7, 1958, supra, states in part:

“The authority to make selections shall never be alienated or bar-

gained away, in whole or in part, by the State. Upon the revoca-

tion of any order of withdrawal in Alaska, the order of revocation

shall provide for a period of not less than ninety days before the

date on which it otherwise becomes effective, if subsequent to the

admission of Alaska into the Union, during which period the State

of Alaska shall have a preferred right of selection, subject to the

requirements of this Act * * *,”’

® The decision stated :

“<* * * The selected lands are of a class subject to selection under

the Act [sec. 6(b) of the act of July 7, 1958, supra] * * *,

“‘The selected lands are now segregated from all appropriations

uader the public land laws. This segregation will automatically

terminate unless the State publishes first notice of its application

within 60 days of receipt of this decision (43 CFR 76.16) [now

43 CFR 2013.9.4].’’

24a

The publication was carried out within the time allowed,

the notice stating:

‘‘Notice is also given that the above described lands

have, since these dates [the dates on which the original

application and amendments were filed], been segre-

gated from all applications and appropriations under

the public land laws, including settlement under the

homestead and similar laws and locations under the

mining laws. Settlements and locations initiated on

or after these dates are null and void.’’

About 7 months after first publication, Andrew Kalerak,

Jr., on May 27, 1965, filed a Notice of Location of Settle-

ment or Occupancy Claim in Alaska, stating that he had

made a settlement under the homestead laws on May 26,

1965, on unsurveyed lands which would probably be the

NW), see. 19, 'F 12 N., R. 2 W., S.M., Alaska. Kalerak

completed Item 5 of the form, which begins: ‘‘Improve-

ments on the lands * * *,’’ by inserting: ‘‘None, when i

settled. I have staked each corner, marked the boundaries,

post [sic] the land with a copy of this notice, and placed

cement blocks on the land for a start of a foundation.’’

On June 9, 1965, by a letter-decision the land office held

that Kalerak’s location notice was unacceptable for rec-

ordation because the lands described in his claim were in-

cluded in a valid selection by the State and therefore were

segregated from all applications and appropriations under

the public land laws. On appeal, the Office of Appeals and

Hearings rejected the State’s selection application inso-

far as it includes lands described in paragraph (4) of

P.L.O. 576, supra, and reversed the land office decision

insofar as it refused to accept the notice of location for

recording.

™he decision held that on the date that the State filed

its original selection application the land described in

paragraph (4) of P.L.O. 576, supra, was still withdrawn,

29a

that section 6(b) of the act of July 7, 1958, permits selec-

tions only from vacant, unappropriated and unreserved

land, that on the filing date these lands were not eligible

for selection, and that an application filed while land is

withdrawn is invalid. The restoration of the lands by

P.L.O. 3022, supra, it continued, was not effective retro-

activety, and when the State did not file a new application,

or amend its original application to select the lands after

they had been restored either during the preference period

or thereafter, the lands became available for other appli-

cation and settlement at the end of the preference period,

which was 10:00 a.m. on July 8, 1963. Therefore, it con-

cluded, the land embraced in Kalerak’s claim was open to

homestead settlement.

The State in its appeal to the Secretary contends that

(1) the State relied on the Bureau of Land Management’s

interpretation of the applicable statute and regulations and

that these interpretations can be relied upon and will be

accorded great weigkt by the courts, (2) the State’s selec-

tion, even if ineffective when filed, is to be considered as

filed as of the time the land was opened to entry, and (3)

the State can exercise the preference right given it by

section 6(g) of the Statehood Act, supra, for land unavail-

able when the State files, to take effect when the land be-

comes available.

Kalerak, in opposition, maintains that the interpretation

of the statute and regulations by the local Bureau office

permitting blanket selections of lands whether available or

not is erroneous and that no selections could be made of

lands withdrawn by P.L.O. 576 while it was in effect, that

the State has not established an administrative interpreta-

tion of the statute which is controlling, and that an agree-

ment between the local Bureau office and the State cannot

bind or stop the Secretary from making his own inde-

pendent examination of the merits of the local post office

practice, that P.L.O. 3022 did not allow the States to file

prior to the revocation of P.L.O. 576 and, finally, that the

Canoe:

26a

State, by making the selection on behalf of the city, has

violated the prvhibition in 6(g): of the Statehood Act,

supra, which provides that:

‘‘The authority to make selections shall never be

alienated or bargained away, in whole or in part, by

the State.’’

Although the issue on appeal to the Secretary has be-

come the validity of the State’s selection insofar as it

covers lands formerly in F’.L.O. 576, the issue on appeal to

the Director in the Kalerak case was, and in the 11 other

cases being considered here is, whether the notices sub-

mitted by the settlers and other appellants should have

been accepted for recordation by the land office. The land

office refused to accent the notices on the ground that the

land described in each of them was segregated by the

State selection from all applications and appropriations

under the public land laws, includine the mining laws.

The pertinent regulation provides for the return of the

filing fee required to accompany a notice of settlement

claim ‘‘where the notice is not acceptable to the land office

for recording because the land is not subject to homestead

settlement.’’ 43 CFR 2211.9-1(d).’

As far as Kalerak and the other individual applicants are

concerned, the issue is whether the land was subject to

homestead settlement or to occupancy as a trade or manu-

facturing site. They contend that the State’s selection is

defective because it was filed prematurely, and, that, as a

result, the State selection erected no obstacle to their at-

tempts to establish their claims. In other words, they base

their position upon the premise that a defective State selec-

tion cannot close the land selected to later appropriation.

7 Essentially the same provision is found in the homesite and

headquarters site regulation, 43 CFR 2233.9-2(e), and in the trade

and manufacturing site regulation, 43 CFR 2213.1-1(d).

27a

Before examining the validity of the State’s selection,

we will first consider the soundness of the individual ap-

plicants’ premise.

At the time the State first filed its selection the pertinent

regulation described the effect of the State’s action as

follows:

‘‘Lands desired by the State under the regulations

of this part will be segregated from all appropriations

based upon application cr settlement and location, in-

cluding locations under the mining laws, when the State

files its application for selection in the appropriate land

office properly describing the lands as provided in

§ 76.9(2) (3), (4), and (5). Such segregation will auto-

matically terminate unless the State publishes first

notice as provided by § 76.17 within 60 days of service

of such notice by the appropriate officer of the Bureau

of Land Management.’’ ®

The regulation requires only that the State describe the

lands properly to bring into play the segregative effect of

its filing; it does not demand that the lands applied be

available for filing, that they be eligible for selection, or

that the selection be finally carried to patent. The regula-

tion is merely a formal restatement of a rule that the

Department has long followed. Keeping in mind that

the land office treated the State selection as regular, ac-

cepted it, recorded it, and posted it, we find that the De-

partment has held:

‘¢* * * the Department has invariably adhered to

the rule of long standing that a selection, regular on

its face when filed, * * * has the same segregative effec.

as a homestead or other entry under the general land

laws, as against all subsequent claims presented, other

843 CFR, 1964 rev., 76.16; now with minor changes 43 CFR

2222.9-5(b).

28a

than those asserted by the Government, thus withdraw-

ing the land in the meantime from appropriation by

later applications * * *.’? State of New Mexico (on

petition) 46 L.D. 217, 222 (1912), overruled on other

grounds by Administrative Order, 48 L.D. 97, 98

(1921) ; Circular 768, 48 L.D. 172 (1921).

In a later decision in a case involving a school land in-

demnity selection, in which after filing .t developed that

the State had tendered defective base land, the Department

reviewed its prior rulings and concluded:

‘‘The effect of filing and allowance of a school land

indemnity selection is to segregate the land selected,

even though it may thereafter be found that there are

defects which render cancellation necessary, and such

a selection, even though erroneously received, segre-

gates the land so that no other application therefore

may be received or rights initiated by its tender.’

State of Arizona, 55 L.D. 249 (1935), syllabus.®

The Depariment made a particularly relevant application

of the rule in Youngblood v. State of New Mexico (on

rehearing), 46 L.D. 109 (1917). There the State had filed

a school land indemnity selection for land on August 5, 1914.

Youngblood alleged that he made a settlement on the land

on February 6, 1916, and on February 12, 1916, he filed a

homestead application. Thereafter when it was discovered

that a portion of the land assigned as base had already been

_ used in another selection, the Commissioner of the General

Land Office (now Bureau of Land Management) cancelled

the selection in part. The State then filed an application

to amend in order to cure the defect.

® Accord: Hodges v. Colcord, 193 U.S. 192 (1904) ; McMichael v.

Murphy, 197 U.S. 304 (1905) ; Joyce A. Cabot et ai., 63 I.D. 122

(1956) ; R. B. Whitaker et al., 63 I.D. 124 (1956).

29a

The Department rejected Youngblood’s homestead appli-

cation and on rehearing stated:

‘‘In the former Departmental decsion it was held

that inasmuch as the selection was intact and prima

facie valid at the time Youngblood filed his application,

the land was not subject to such application, and, there-

fore, he gained no rights by filing the same. Further-

more, it was held that his alleged settlement on the land

under date of February 6, 1916, was likewise invalid

because of the pending State selection, which segre-

gated the land from settlement and entry.

‘The decision complained of is in harmony with the

recent Departmental decision of March 17, 1917, in the

case of California and Oregon Land Company v. Hulen

and Hunnicutt (46 L.D., 55), wherein it was held:

‘Land segregated from .he public domain, whether

by patent, reservation, entry, selection, or otherwise,

is not subject to settlement or any other form of ap-

propriation until its restoration to the public domain

is noted upon the records of local land office.’ ”’

While the cited decisions do not involve the segregative

effect of an application or entry improperly allowed because

the funds applied for were unavailable, the rule is equally

pertinent in that situation. In Keating et al. v. Dell, 48

L.D. 199 (1921), the Department held that a homestead

entry allowed whiie the land was still withdrawn as part of

a national forest segregated the land and required the rejec-

tion of applications filed later although the application for

entry was prematurely filed prior to the date set for open-

ing the land to entry and was otherwise defective.

These decisions made it abundantly ciear that the lands

covered by the State selection, whether or not it was defec-

tive, were not open to the initiation of claims by settiement

or location and that all attempts to do so were invalid.

Ri.

30a

As the discussion below examines in greater detail, this

rule is founded on the principle that all persons should

have an equal opportunity to file for public land. If ap-

plications or settlements for lands noted on the public

records as covered by a State selection which purports to

segregate them were permitted, those who knew that the

State selection was defective would have a marked ad-

vantage over those who relied upon the records to inform

them whether or not the lands were available.

The just and equitable practice is the one followed by

the Department. That is, while the State can gain no ad-

vantage by a premature or defective selection, a selection

once filed and posted segregates the land until it is rejected

and the public land records so noted. Any other course

would undermine the Department’s salutary policy of giv-

ing all applicants un equal chance to acquire public land.

Accordingly, the land office, as required by the pertinent

regulation, supra, properly rejected the notices of settle-

ment or oecupancy.

With the claims of the individual applicants removed

from the appeal, we may now consider the status of the

State’s selection.

As we have seen, the Director relied upon the general

rule that an application made for land while it is withdrawn

is invalid and does not become valid upon the revocation

of the withdrawal. Atherton Sinclair Burlingham et al.,

71 I.D. 126, 128, 129 (1964) ; Hunt v. State of Utah, 59 I.D.

44 (1945). While this principle is sound and controlling in

most similar situations, it is necessary to examine both

the reasons underlying it and Departmental practice to de-

termine whether it requires the rejection of the State’s

selection here.

There are, it appears, two fundamental objections io al-

lowing applications to be filed for lands before they are

open to disposition. One is administrative. As the De-

3la

partment said in refusing to hold in suspense an oil and

gas application for lands then unavailable for ieasing :

““* * * the rule is founded upon sound administra-

tive practice. It prevents the public land records from

being burdened with thousands of appl «tions on

which there is no possibility that action can be taken

in the foreseeable future. If one person can maintain

an application for land not available for leasing several

or a hundred can. [Footnote omitted. ]

In view of the hundreds of thousands of acres of

public land which are not available for leasing for one

reason or another, it is plain that the problem of ad-

ministering premature offers would be considerable.

***” J. G. Hatheway et al., 68 LD. 48, 52 (1961).

The second reason is equitable—that is, it avoids giving

an applicant a preference right to which he has no right

and assures to all the public equality of opportunity to file.

As the Department held in a case involving the rejection

of an oil and gas lease offer for lands which the records

showed to be in an existing lease which had in fact termi-

nated and the land then had been leased again and the

second lease terminated, all without notation:

“* * * [T]he overriding objective of the rule has

been to assure to all the public equality of opportunity

to file. This has been stated on many occasions. Ger-

manta Iron Co. v. James, 89 Fed. 811 (8th Cir. 1898),

appeal dismissed, 195 U.S. 638; George B. Friden,

A-26402 (October 8, 1952); 8. E. Van Arsdale, 62 1.D.

475 (1955) ; E. A. Vaughey, supra; M. A. Machris, Mel-

vin A. Brown, 63 L.D. 161 (1956).

‘This being the primary objective of the notation

rule, to notify the public so that all will have an equal

opportunity to file for iand, it would be manifestly un-

fair to say that although there was an outstanding

trap ational

SS rr emcee neerreniemencr in enters un

g Re Ee ee Te NIT ITI TTY ARN OP RES ee em) sce DORR Oe grep yg se per ecen

32a

a

entry of record in the tract book of an oil and gas lease

(Evanston 09156 (b)) covering the lands in secs. 2 and

11, no notation of termination of the lease was neces-

sary to open the land to filing because, entirely out-

side the record, another lease (Wyoming 0257) had

been issued and terminated following the termination

of the first lease. This would give an unfair advantage

to those who by chance knew of the issuance of the

second lease. Those who relied on the tract book would

have no notice of the second lease but would await the

notation of termination of Evanston 09156(b) in the

tract book before filing for the land. It would be no

answer to say that others could have ascertained the

issuance of Wyoming 0257 by checking the serial reg-

ister and plats. The fact is that the Department has

said that the tract book is the record which will be

determinative of whether Jand is open for filing, and

there is no reason why the public should have to resort

to other records.’’ Max L. Krueger, Vaughan B. Con-

nelly, 65 I.D. 185, 191 (1958).

In an earlier case in which the Department considered

the effect of State exchange applications filed for lands still

in « temporary withdrawal, the State, while admitting that

the selections were invalid and properly subject to rejec-

tion, asked that the selections be allowed to remain of

record and that action be suspended until the withdrawal

was revoked. In refusing to do so the Department held:

‘‘The obvious purpose in asking for the suspension

of these selections is to place the State in a situation

where it will have a preferred right to exchanges over

others under the provisions of section 8 of the Taylor

Grazing Act, the assumption being made that, upon

revocation of the withdrawal that now constitutes the

bar to the selections, the rights of the State would

attach eo imstanti and shut out all subsequent appli-

33a

cants for the same laud which might lawfully be filed

under the same section of the act. In other words,

these invalid selections would operate as segregation

of the land applied for from other appropriation at-

tempted when the land became subject to such filing.

To so hold would be in direct conflict with the ruling

in Hendricks v. Damon (44 L.D. 205), which has been

cited and applied in cases without number in the ad-

ministration of the public land law. There is rothing

in section 8 of the Taylor Grazing Act which accords

preference to the States in exchanges made thereunder,

and no circumstances appear in connection with these

selections that might be deemed equities that could be

made the basis of preference if and when the land

becomes subject to exchanges. Action suspending these

selections, for the purpose of effecting segregations in

favor of the State the moment the land is released

from the withdrawal of July 9, 1934, is tantamount to

provisions in the order of restoration that exchanges

under section 8 filed by the State shall be preferred

over others that may lawfully be filed, a provision for

which there is no statutory warrant. The applications

here involved are void and do not become validated by

the removal of the withdrawal.’’ State of Arizona,

A-18816, ete. (October 16, 1935).?°

The question then is whether the considerations underly-

ing the general rule are pertinent here and, if they are not,

whether cessante ratione legis, cessat et ipsa lex, a differ-

ent result should follow.

Examining the problem first again in its administrative

aspect to ascertain whether the State’s method impeses an

undue burden on the land office, we note that the State is

the only applicant whom the land office permits to file

‘‘prematurely.’’ Tuere is, thus, no likelihood that hun-

10 Accord: Hunt v. State of Utah, supra, 46-47.

Qerreee» Sane

34a

dreds of other applicants will clutter the records with their

filings.

Considering next the equitable aspects, we observe im-

mediately that the State has a preference right to all land

restored from withdrawal, granted to it by section 6(g)

of the act of July 7, 1958, supra. Therefore, the fact that

the State did get an opportunity to file on the restored land

before anyone else is not inequitable or unfair or contrary

to the statutory scheme. It merely advanced a bit the

time in which the State could make its statutory preference

known. Since the State has a statutory preference right,

it is not inequitable to give it a chance to take advantage

of it.

The force of the other argument—equality of opportunity

to all to file—is dissipated by the same reasoning. If the

statute intends that there be no equality of filing, then no

individual is harmed if the State is allowed to file some-

what sooner than that general practice permits.

Therefore we couclude that in the circumstances there

are no reasons of policy which require that the Department

reject the State selection.

Furthermore, as we noted earlier, the State amended its

application four times, twice within the preference right

period and twice thereafter and all before publication and

before Kalerak or any of the other appellants sought to

establish any rights to the lands in their applications or

settlements.

In such circumstances is the Department bound to insist

on a new filing to replace the original premature one or

can it accept the amendments as a demonstration of the

State’s interest in its selection and relieve it of the neces-

sity filing anew? We believe that it can.

In Hunt v. State of Utah, supra, the Department in a

somewhat similar situation adopted a solution relieving the

35a

State from the necessity of strict compliance with the

regular procedure. After holding that the State gained

no priority by a premature filing of an application to select

certain land, it having no preference right to the land

scught, even after restoration of the land, the Department

gave effect to the State’s selection thus:

‘*It is possible, however, to treat the Commissioner’s

action in reinstating the [State’s] application as a

ruling that in the circumstances the filing of a new

application would be an unnecessary formality, and

that upon reinstatement the original application should

be regarded as having effect only as of the time of

such reinstatement and therefore being subject to such

rights as Hunt might be deemed to have acquired by

his prior [valid] application.’’ (59 Z.D. at 47.)

in other words, although the State’s original and only

application should have gained it nothing, the Department

allowed it to be treated as though it nad been filed as of

the aay the Commissioner purported to reinstate it.

So here the filiag of an amendment to an application, in

the absence of any reason not to so consider it, can be

deemed the refiling of the original selection and the State’s

rights can be determined as though the original selection

had been filed then. Since the first two amendments came

within the preference period, the State, then, has exercised

its preference right and has established its claim to the

selected lands.

In another case where a railroad had filed an indemnity

selection list for lands held by the Department not to be

open to such filing, but which were thereafter made avail-

able for selection by statute, the Department held that in

the absence of intervening rights the original selection list

could be treated as valid from the date the Commissioner

of the General Land Office instructed the local officers to

allow the selection, if otherwise proper, and to require the

le ‘¢

TN EN TFN BEY: CAN FNC LORETTA emt Seenete he

EET RI

OPP BENT NG SRNL AE: EU SMT MSN ate

36a

railroad to submit supplemental lists of tracts which were

free from other claims and those to which adverse claim~

were asserted, despite the fact that a homestead applica-

tion was filed by another before the railroad filed its supple-

mental lists. In affirming the validity of the railroad’s

selection the Department said:

‘<The selection, in so far as the tracts free from ad-

verse claim were concerned, was, in fact, treated, and

properly so, in the nature of a new selection, effective

and pending from and after the date of receipt of the

Commissioner’s letter by the local officers, but not prior

thereto.

It devolved upon the Department, as hereinbefore

stated, to dispose of said lists under the law then in

force and the action taken by the Commissioner was

to relieve from suspension the railway selection. The

land at the date the Commissioner took that action,

being subject to appropriation by the railway company

and the railway company having at all times prior

thereto manifested its desire and intent to select the

same, it would have been a useless and burdensome

requirement to compel the railway company to file

new selection papers, practically a duplication of the

selection then before the Department. The original

selection could have been and was allowed as to the

tracts free from adverse claim, as above stated, irre-

spective of the supplemental lists. The supplemental

lists were in nowise a prerequisite of the taking of

appropriate action on the original selection under the

act of March 3, 1911, supra.

It is, therefore, held that movant, not being a party

in interest at the date of receipt of the Commissioner’s

letter of September 30, 1913, by the local officers, will

not be heard to question the Department’s authority to

relieve from suspension the pending railway selection,

the disposition of which appears regular and in accord-

37a

ance with the law.’’ Trott v. Northern Pacific Ry. Co..

45 L.D. 193, 196 (1916).

Again we see that the Department need not insist upon

a mere formality when there are no adverse rights to be

considered. Here the State has at all times shown its in-

tention to acquire the selected lands and it would have

served no useful purpose to require it to file a duplicate

of the application already on file.

Therefore we conclude that the amendments filed by the

State during and after the preference right period were re-

affirmations of the State’s original selection and, in the

circumstances, are to be treated as though the State had

refiled its original application at the time of the amend-

ments.”

There remains Kalerak’s contention that the State has

alienated or bargained away its authority to make selections

in violation of the prohibition in 6(g) of the Statehood Act,

supra. There is no evidence to support this charge. The

mere fact that the State is making a selection for land that

the city desires does not mean that the State has sold or

otherwise disposed of its authority to make this selection or

any other.

In his supplemental pleadings on appeal Kalerak has

raised several new issues. First, in rebuttal to an asser-

It is also interesting to note that the practice of allowing a

State to file premature applications so long as it did not prejudice

any applicant filing on the day the lands became available is not

of recent origin. For a time State selections filed prior to the filing

of a township plat of survey were recognized as being filed on the

proper date and in turn after all those present at the land office

at the time of opening on the proper date. State of California v.

Koontz et al., 32 L.D. 648 (1904) ; 33 L.D. 643 (1905).

The Department soon formalized its practice by a regulation

limiting the State to a period of three days prior to the regular

opening day in which to submit premature selections. Regulations

paragraph 12, June 23, 1910, 39 L.D. 39, 41 (1910). This provision

was later omitted from the regulation, 43 CFR, 1938 ed., 270.12.

RE ne ee ee ee

38a

tion of the State, he denies that the lands sought by Kalerak

and others are necessary to protect the watershed. This

issue is irrelevant, for the validity of the State’s selection

does not denend on the purpose for which it is made. The

statute requires no particular purpose to justify a selection

and none is required by the Department. The State’s

motivations are its own concern.

Next Kalera urges that the United States District Court

for the District of Alaska has already decided the case in

Taylor et al. v. Greater Anchorage Area Borough et al.,

No. A-91-65 Civ., October 15, 1965. This was an action by

several homestead settlers or entrymen to enjoin the

Borough from restricting the plaintiffs from full enjoyment

of their rights under the homestead laws, or, specifically,

from preventing the plaintiffs from access to or erecting

structures on their homesteads. The Court issued a pre-

liminary injunction effective only against the Borough

which it said would ‘‘remain in effect until the Department

of Interior has determined the dispute now appealed to it

by the State of Alaska in the Kalerak case.”

The Court emphasized that the injunction would not

apply to either the State or Alfred P. Steger, described in

the complaint as “Chief Records and Public Service,

Anchorage District and Land Office, Bureau of Land

Management.”’

While the Court did say that it found the State’s original

selection was “invalid against the rights of any others

lawfully claiming rights under or against rights to said

Federal Land,’’ it also recognized that the issue was before

the Secretary on appeal and that it would reexamine the

matter when the Department had rendered its decision. In

other words, it was not attempting to supersede the Secre-

tary’s duty to dispose of the appeal or to substitute its

judgment for his. The Secretary remains free to examine

the issues and to decide the case in accordance with his

understanding of the law.

39a

Finally, Kalerak has requested that an oral argument

be held primarily to present his position that the lands in

his entry are not needed to protect the watershed with

which the City of Anchorage is so concerned. As we have

seen, the controlling issues in the case are legal, not factual,

and the issue of whether all or any of the selected lands are

part of the watershed is not really material to their resolu-

tion. The issues have been extensively briefed and oral

argument would add little, if anything, to the written dis-

cussions Therefore Kalerak’s request for oral argument

is denied.

Pursuant to the authority delegated to the Soliciter by

the Secretary of the Interior (210 DM 2.2A (4) (a); 24 F.R.

1348), the decision of the Chief, Office of Appeals and Hear-

ings, Bureau of Land Management, is reversed and the de-

cisions of the land office refusing to record the several

notices of occupancy or settlement are affirmed.

Epwarp WEINBERG,

Deputy Solicitor.

very siete |

ee

40a

APPENDIX D

UNITED STATES DEPARTMENT OF THE INTERIOR

Bureau of Land Management

Washington, D. C. 20240

Decision

Andrew Kalerak, Jr. Homestead Location Notice

State of Alaska State Selection Application

Land Office Decision Reversed

- - Selection App ¥gggion Rejected in Part

Andrew Kalerak, Jr., has appealed from a letter-decision

of the Anchorage District and Land Office, dated June 9,

1965, notifying him that his Notice of Location of Settle-

ment or Occupancy Claim in Alaska, Anchorage 062515, for

a homestead entry, could not be accepted for recordation.

The stated reason for this determination was that the land

involved is included in a valid selection, Anchorage 058566,

made by the State of Alaska pursuant to section 6(b) of

the Act of July 7, 1958 (72 Stat. 339-343), and is therefore

segregated from all applications and appropriations under

the public land laws, including the mining laws.

The appellant contends, among other things, that the

selection application, Anchorage 058566, filed by the State

of Alaska on January 8, 1963, is not valid because the sub-

ject land, along with other land selected by the State, was

withdrawn by Public Land Order 576, but that his home-

stead claim is valid as the land was not reserved when he

tiled his notice of location [on May 27, 1965]. The appel-

lant indicates that he will continue to work and spend time

and money on his claim until the matter is settled, and re-

quests that his claim be placed on the ‘‘public land record

map books’’, until the issue is resolved. (The appellant

states in his notice of location that he occupied the subject

land on May 26, 1965, by staking the corners, marking the

boundaries, and placing concrete blocks on the land for the

4la

start of a foundation, presumably for a dwelling). The

appellant has also resubmitted the required $10 recording

fee, which had been returned to him by the land office.

The appellant’s contention that the selection application

filed by the State of Alaska is not valid, bas merit.

The Act of July 7, 1958, supra, grants to the State of

Alaska the right to select, within 25 years from January

3, 1959, not to exceed 102,550,000 acres from the public

lands of the United States which are vacant, unappro- )

priated and unreserved at the time of their selection. (Em- '

phasis supplied). a ax-a& -G —

It. cannot be said that the subject land was vacant, un-

appropriated and unreserved, at the time the State of

Alaska filed its selection application on January 8, 1963.

The record shows that the land in question was included :

in some 17,800 acres of lands which were withdrawn by

paragraph 4 of Public Land Order 576 of March 29, 1949,

from all forms of appropriation under the public land laws,

including the mining and mineral leasing laws, and reserved

under the jurisdiction of the Secretary of the Interior for

the protection of the water supply of the City of Anchorage.

The lands were so withdrawn at the time it filed its selec- |

tion application in the land office on January 8, 1963, and :

even though the State requested in its selection application

with regard to the 17,800 acres, that paragraph 4 of Public

Land Order 576 be revoked in order that the State’s pref-

erence right of selection be included in the revocation order

simultaneously with the filing of the selection application,

these lands were not subject such application. The De-

partment has consistently held that ar. application filed for

land while the land is withdrawn is invalid. The fact that

the land was later restored from the withdrawal does not {

validate the application. Charles W. Trounson, 60 I.D. 182

(1948). See also John Rovetto, A-2752 (December 9, 1957) ;

Robert L. Miller, 68 I.D. 81 (1961). While the cases cited :

involve applications filed by private individuals under vari-

PR RR EE 7 TRE RS

“ SPOT COR OF wr ne

42a

ous land laws, the same principle applies to selection ap-

plications filed by the State of Alaska.

In view of the foregoing, the selection application, An-

chorage 058566, must be and is hereby rejected insofar as __

it includes the lands described in paragraph 4 of Public

Land Order 576.’

The lands described in paragraph 4 of Public Land Order

576 were restored by Public Land Order 3022 of April 8,

1963. There is no provision in this order making the res-

toration retroactive to the filing of the selection application

by the State of Alaska on January 8, 1963. The order

provided that until 10:00 AM, July 8, 1963, the State of

Alaska had a preference right to select the lands under the

provisions of the Act of July 28, 1956 (48 U.S.C., 46-3b),

and section 6(b) of the Act of July 7, 1958, supra. The

State of Alaska did not file a new application, or amend

its original application to select the lands after they had

been restored, either during the preference right period pro-

vided by the restoration order, or subsequent to that time.

The lands in question, therefore, became available and sub-

ject to other applications and settlement under the public

land laws, including the mining and mineral leasing laws

as of 10:00 AM, July 8, 1963.

It can only be concluded then that the land embraced in

the homestead claim of the appellant, Andrew Kalerak, Jr.,

was in fact open to settlement or occupancy as a homestead

entry as claimed in his notice of location filed in the land

office on May 27, 1965. Therefore, the appellant’s notice

of location is proper for acceptance and recordation as of

the date of its filing in the land office.

1The Directer of the Bureau of Land Management has the au-

thority at any time to take up and dispose of any matter pending

in a land office or to review any decision of a subordinate officer

with or without an appeal. State of Utah, 71 I.D. 392 (1964).

43a

Accordingly, the decision appealed from is reversed

insofar as it refused to accept the notice of location for

recordation.

When this decision becomes final, the homestead case of

Andrew Kalerak, Jr., will be remanded to the Manager,

Anchorage District and Land Office for proper recordation

on the records of the land office, and for any other action

as is necessary in the circumstances. This decision does

not prejudice the right of the State of Alaska to file a

new selection application for the lands restored by Public

Land Order 3022 of April 8, 1963, which wil) be considered

on its merits.

The State of Alaska is allowed the right of appeal to the

Secretary of the Interior in accordance with the regulations

contained in 43 CFR Part 1840. See enclosed Form WO

1844-1 and Circular 2137. No filing fee is required. In

taking an appeal there must be strict compliance with the

regulations. If an appeal is taken the appellant will have

the burden of proving by submitting positive and substan-

tial evidence wherein the decision appealed from is in

error.

If an appeal is taken the adverse party to be served by

the State of Alaska is:

Mr. Andrew Kalerak, Jr.

2910 Eureka Drive

Spenard, Alaska

JAMEs F’, Doy.e

Chief, Office of Appeals and

Hearings

Qrvere DRAM MET MALIN Pes

Se ee ee

44a

APPENDIX E

Statute, Regulations and Public Land Orders Involved

Alaska Statehood Act (Publ. Law 85-508, July 7, 1958),

72 Stat. 339-352 (48 U.S.C., Ch. 2), provides in pertinent

part:

Sec. 6(a). For the purpose of furthering the development

of and expansion of communities, the State of Alaska is

hereby granted and shall be entitled to select, within twenty-

five years after the date of the admission of the State of

Alaska into the Union, . . . other public lands of the United

States in Alaska which are vacant, unappropriated, and un-

reserved at the time of their selection not to exceed another

four hundred thousa.d acres of land, all of which shall be

adjacent to established communities or suitable for prospec-

tive community centers and recreational areas.

Sec. 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 twenty-five years after the ad-

mission of Alaska into the Union, not to exceed one hundred

and two million five hundred 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.

Sec. 6(g). Except as provided in subsecticn (a), all

lands granted in quantity to and authorized to be selected

by the State of Alaska by this Act shall be selected in such

manner as the laws of the State may provide, and in con-

formity with sucn regulations as the Secretary of the In-

terior may prescribe. * * * The authority to make selec-

tions shall never be alienated or bargained away, in whole

or in part, by the State. Upon the revecation of any order

of withdrawal in Alaska, the order of revocation shall

provide for a period of not less than ninety days before

the date on which it otherwise becomes effective, if sub-

sequent to the admission of Alaska into the Union, during

45a

which period the State of Alaska shall have a preferred

right of selection, subject to the requirements of this Act,

except as against prior existing valid rights or as against

equitable claims subject to allowance and confirmation.

The Interior Department regulations provide in pertinent

part:

43 C.F.R, § 1821.6-6 (formerly 43 C.F.R., § 104.13). Entry

improperly allowed not to be amended.

Where entries, selections, or locations are improperly

allowed, as where the lands are not subject to such entries,

selections, or locations, amendments will not be allowed,

because such claims, being invalid, should be canceled, and

upon cancellation thereof a new entry, selection, or location

may be allowed as though the former had never been made.

43 C.F.R. § 222.9-3 (formerly 43 C.F.R. 76.7-76.10) :

(c) Applications for Selection. (1) Applications for

selecticn of lands under the act will be made by the proper

selecting agent of the State and will be filed, in duplicate,

in the land office of ine district in which such selected lands

are situated. No special form is required but it must be

typewritten and must contain the following information:

(i) A reference to the act of J uly 28, 1956 (70 Stat. 709),

as supplemented.

(ii) A certificate by the selecting agent showing:

(a) That the selection is made under and pursuant {o

the laws of the State.

(6) The acreage selected and the cumulative acreage of

all prior selection lists pending and finally approved for

clear-listing or patenting.

ian see ee ee af

BCR asin

46a

(c) His official title and his authority to make the selec-

tion on behalf of the State.

(ad) That no portion of the selected land is occupied for

any purpose by the United States and that to the best of

his knowledge and belief the land is unoccupied, unim-

proved, and unappropriated by any person claiming the

land other than the applicant, and that at the date of the

application no part of the land claimed or occupied under

the mining laws.

(e) That the selected land does not extend more than

160 rods along the shore of any navigable water or that

such restriction has been waived or should be waived.

(§ 2024.2 of this chapter.)

(f) All the facts relative to medicinal or hot springs or

other waters upon the selected lands.

(iii) If the selected lands are surveyed, the legal descrip-

tion of the lands in acordance with official plats of survey.

(iv) If the selected lands are unsurveyed and are

described by approved protraction diagrams of the

rectangular system of surveys, such description is required.

(v) If the selected lands are unsurveyed and are not

described by approved protraction diagrams, a description

of the lands and a map or maps, in duplicate, sufficient to

permit ready identification of the location, boundaries, and

area of the lands.

(2) Selections must be accompanied by a filing fee of

$10 for each 5,760 acres or fraction thereof in the selection

which fee is not returnable.

43 C.F.R. § 2222.9-4 (formerly 43 C.F.R. §76.11-16).

Grant for general purposes.

(a) Statutory authority. (1) The act of July 7, 1958

(72 Stat. 339-343), referred to in paragraph (a) to (d) of

this section as ‘‘the act,’’ grants to the State of Alaska the

47a

right to select, within 25 years from January 3, 1959, not

to exceed 102,550,000 acres from the public lands in Alaska

which are vacant, unappropriated and unreserved at the

time of selection. The act of September 14, 1960 (74 Stat.

1024), defines vacant unappropriated, unreserved public

lands in Alaska to include the retained or reserved interest

of the United States in lands which have been disposed of

with a reservation to the United States of all minerals or

any specified mineral or minerals.

(2) The act further provides that no selection shall be

made in the area north and west of the line described in

section 10 thereof (72 Stat. 345) without the approval of

the President or his designated representative,

(b)(2) Under the act, the State may select any vacant,

unappropriated, and unreserved public lands in Alaska,

whether or not they are surveyed and whether or not they

contain mineral deposits.

(b)(3) Patents will be issued for all selections approved

under the act by the authorized officer of the Bureau of

Land Management but such patents will not issue unless or

until the exterior boundaries of the selected area are

officially surveyed.

(c) Applications for selection. (1) Applications for

selection under the act must conform with the requirements

of § 2222.9-3(c) (1) and (2), and with the following modi-

fications of :

(i) Section 2222.9-3(¢)(1)(i) is modified to require a

reference to the act of J uly 7, 1958 (72 Stat. 709).

(ii) Section 2222.9-3(c)(1)(i) is modified to require a

statement that the selection, together with other selections

under the act pending or approved, does not exceed

102,550,000 acres (400,000 acres where one of the grants

for community purposes is involved).

(2) All selections shall be made in reasonably compact

tracts, taking into account the situation and potential uses

ee een

OUD iti 0s Bait esa ee

48a

of the lands involved. A tract will not be considered com-

pact if it excludes other public lands available for selection

within its exterior boundary. Each tract selected shall con-

tain at least 5,760 acres unless isolated from other tracts

open to selection.

(3) If the selected iands are in the area north and west

of the line described in section 10 of the act, all selection[s]

made or confirmed by the act must be accompanied by a

statement of the President or his designated representative

showing that he approves the selection.

(4) Lands selected must be described as provided by

§ 2222.9-3(c).

(5) Section 2222.9-3(c) (1) (ii), and paragraph (a)(1) of

this section do not apply to the extent that an application

embraces a reserved or retained interest.

43 C.F.R. § 2222.9-5. All grants.

(a) State preference right of selection; waivers. (1) The

acts of July 28, 1956 (see § 2222.9-3(a)), and July 7, 1958

(see paragraph (a) of this section), provide that upon the

revocation of any order of withdrawal in Alaska, the order

of revocation shell provide for a period of not less than

90 days before the date on which it otherwise becomes

effective during which period the State of Alaska shall have

a preferred right of selection under the acts of 1956 and

1958, except as against prior existing valid rights, equitable

claims subject to allowance and confirmation and other

preferred rights of application conferred by law.

(2) Where the proper selecting agent of the State files

in writing in the appropriate land office a waiver of the

preference provisions of paragraph (a) of this section in

connection with the proposed revocation of an order of

withdrawal, the order affecting such revocation will not

provide for such preference.

49a

(b) Segregative effect of applications. Lands desired

by the State under the regulations of this part will be

segregated from all appropriations based upon application

or settlement and location, including locations under the

mining laws, when the State files its application for selec-

tion in the appropriate land office properly describing the

lands as provided in § 2222.9-3(c)(1) (iii), (iv), and (v).

Such segregation will automatically terminate unless the

State publishes first notice as provided by paragraph (c)

of this section within 60 days of service of such notice by

the appropriate officer of the Bureau of Land Management.

(c) Publications and protests. (1) The State will be

required to publish once a week for five consecutive weeks

in accordance with 1824.4 of this chapter, at its own expense,

in a designated newspaper, and in a designated form, a

notice allowing all persons claiming the land adversely to

file in the appropriate office their objections to the issuance

of patent or certification for lands selected under the regula-

tions of this part. A protestant must serve on the State

a copy of the objections and furnish evidence of service to

the appropriate land office.

(2) The State must file a statement of the publisher,

accompanied by a copy of the notice published, showing

that publication has been had for the required time.

ee

Public Land Order 576, 14 F.R. 1614 provides in pertinent

part as follows:

By virtue of the authority vested in the President and

pursuant to Executive Order No. 9337 of April 24, 1943 and

section 4 of the act of May 24, 1928, 45 Stat. 729 (49 U.S.C.,

214), it is ordered as follows:

* & ® @ @

Subject to valid existing rights and withdrawals, the

public lands within the following-described areas are hereby

withdrawn from all forms of appropriation under the

RP Ll Be Oo,

50a

public-land laws, including the mining and mineral-leasing

laws, and reserved as follows:

* * * * *

(4) [describes certain lands including those involved

herein. ]

hate

Public Land Order 3022, 28 F.R. 3661, provides in per-

tinent part as follows:

By virtue of the authority vested in the President and

pursuant to Executive Order No. 10355 of May 26, 1952, it

is hereby ordered as follows:

1. Public Land Order No. 576 of March 29, 1949, so far

as it withdrew in paragraph numbered four thereof, an

area of approximately 17,800 acres in Tps. 11 and 12 N.,

Rs. 1 and 2 W., Seward Meridian, for the protection of the

water Supply of the city of Anchorage, is hereby revoked.

3. Subject to any existing valid rights and the require-

ments of applicable law, the public lands are hereby opened

to settlement and to filing of such applications, selections,

and locations as are allowable on unsurveyed lands in

accordance with the following:

a. Until 10:00 a.m. on July 8, 1963, the State of Alaska

shall have a preferred right to select the lands in accordance

with provisions of the Act of July 28, 1956 (70 Stat. 709;

48 U.S.C. 46-3b), and section 6(g) of the Alaska Statehood

Act of July 7, 1958 (72 Stat. 339), and the regulations in

43 C.F.R. Part 76.

5. The lands will be subject to the operation of the public

land laws generally, including location under the United

States mining laws, beginning at 10:00 a.m. on July 8,

oer

5la

APPENDIX F

STATE OF ALASKA

DEPARTMENT OF NATURAL RESOURCES

DIVISION OF LANDS

344 Sixth Avenue

Auchorage, Alaska

January 7, 1963

[Filed Anchorage Land Office J anuary 8, 1963]

Bureau of Land Management

Anchorage Land Office

Sixth and Cordova

Anchorage, Alaska

Ref: S-1209

(City of Anchorage Watershed)

Gentlemen:

Under the provisions of the Act of July 7, 1958, Section

6 (b) and pursuant to Chapter 169, SLA 1959 application

is hereby made for the land described on the attached sheet.

(See Exhibit A.)

In support of the application, the applicant hereby

certifies that:

This selection is being made under and pursuant to the

laws of the State of Alaska, spec-fically, under the authority

of Article II, Section 5 (12), Chapter 169, SLA 1959.

The area described contains approximately 26,800.00

acres. The cumulative acreage of all prior selection lists

pending and finally approved for clear-listing or patenting

totals 11,919,929.99 acres, and does not exceed the

102,550,000 acres allowed by law.

No portion of the selected land is occupied for any

purpose by the U.S., and to the best of my knowledge and

belief, the land is uncecupied, unimproved, and unappro-

OM, Wana tt acts Blame aesvciec

2

i

a

"

52a

priated by any person claiming the land other than the

applicant.

The land applied for does extend for more than 160 rods

along the shore of any navigable water, and it is requested

that this restriction be waived.

There are no known medicinal, hot springs or other

waters known to the applicant on the selected lands.

Sincerely yours,

/s/ Roscor EK. Beir

Roscoe E. Bell, Director

EXHIBIT A

Page 1 S.-1209

Anch. 058566

6.1 General Grant Selection (Act of July 7, 1958)

Section 6(b)

State of Alaska

Division of Lands

344 Sixth Avenue

Anchorage, Alaska

(City of Anchorage Watershed)

* * * * ae

[describes certain lands herein including the lands in-

volved. ]

Approx. Total 17,800 acres

The above lands withdrawn by Paragraph 4, PLO - 576

[Pp. 2-3 of Ex. A are omitted. They deal with lands not

withdrawn by PLO 576 and not involved herein.]

U.S. Code

Provision

43 U.S.C. § 852

43 U.S.C. § 863

43 U.S.C. § 282

43 U.S.C. § 298

43 U.S.C. § 315(m)

Se ail ai) Ses i is NRE. ok Shea

d3a

APPENDIX G

Laws Granting Preference to States or Individuals To Enter

Public Lands

- Length of

Beneficiary and Purpose Preference

To states for deticiencies in

scheduled land selections 6 months

To states with respect to certain

lands surveyed at the State’s

request 60 days

To World War ITI and Korean

War veterans* 90 days

Qualified private individuals

for stock-raising homestead

entries 90 days

Owners, homesteaders, lessees and To be de-

other lawful occupants of con- termined

tiguous lands for grazing by the

Secretary

of the

Interior

43 U.S.C. § 326

—_—

Qualified individuals for

desert lands 90 days

* Expired September 27, 1959. Similar preferences had been

granted to veterans of prior wars. See 43 U.S.C. § 271.