Topic: Land

THESE CAUSES come before the court on various motions for summary judgment.[1] The motions present to the court the issue of the scope of the authority of the Secretary of the Interior to reserve easements upon lands to be patented to Native corporations under the Alaska Native Claims Settlement Act,[2] 43 U.S.C. § 1601 et seq. (hereinafter ANCSA or Act).

The ANCSA was passed in 1971 to provide a fair and just settlement of all claims by Natives and Native groups of Alaska, based on aboriginal land claims. 43 U.S.C. § 1601 (a). The settlement provided the Natives with nearly one billion dollars and 40 million acres of land in Alaska. Under the Act the twelve Regional Corporations and a multitude of Village Corporations are given the right to select land from the public domain. 43 U.S.C. §§ 1611 and 1613(h). As part of this land selection and conveyancing process the Act provides that the Secretary of the Interior shall reserve public easements upon the lands selected prior to granting the patents. 43 U.S.C. § 1616(b)(3). It is the scope of this authority as well as the Secretary’s authority to reserve easements pursuant to other Acts upon lands patented under the ANCSA which is questioned herein. The court first will consider the Secretary’s authority to reserve easements under the ANCSA.

The entire easement selection process of the Act is contained in section 17(b). 43 U.S.C. § 1616(b). That section contains three subsections and the nature of the interplay among those subsections is a crucial question for decision. Subsection 17(b)(1) provides that:

The Planning Commission shall identify public easements across lands selected by Village Corporations and the Regional Corporations and at periodic points along the courses of major waterways which are reasonably necessary to guarantee international treaty obligations, a full right of public use and access for recreation, hunting, transportation, utilities, docks, and such other public uses as the Planning Commission determines to be important.

43 U.S.C. § 1616(b)(1). The Planning Commission referred to in this subsection is the Joint Federal-State Land Use Planning Commission (hereinafter LUPC) established by subsection 17(a)(1), 43 U.S.C. § 1616(a)(1). The LUPC is composed of ten members, including the Governor of Alaska (or his designate), four members appointed by the Governor (one of whom must be an Alaska Native), one person appointed by the President with the advice and consent of the Senate, and four members appointed by the Secretary of the Interior. 43 U.S.C. §§ 1616(a)(1)(A) and (a)(1)(B). This Commission is given many functions under section 17 and clearly under subsection 17(b)(1) it is to identify public easements which fall within the specifically defined categories. This much is undisputed.

Subsection 17(b)(2) provides that:

In identifying public easements the Planning Commission shall consult with appropriate State and Federal agencies, shall review proposed transportation plans, and shall receive and review statements and recommendations from interested organizations and individuals on the need for and proposed location of public easements: Provided, That any valid existing right recognized by this chapter shall continue to have whatever right of access as is now provided for under existing law and this subsection shall not operate in any way to diminish or limit such right of access.

43 U.S.C. § 1616(b)(2). This subsection establishes certain procedures for the LUPC to aid it in carrying out the function of identifying public easements. Also, by an important proviso, it ensures that in addition to the public easements reserved by the Secretary all other valid existing rights recognized by the Act will continue to have a right of access not limited by the subsection.

The subsection which has created the difficulties culminating in these actions is 17(b)(3). It provides that:

Prior to granting any patent under this chapter to the Village Corporation (sic) and Regional Corporations, the Secretary shall consult with the State and Planning Commission and shall reserve such public easements as he determines are necessary.

43 U.S.C. § 1616(b)(3). The parties to these cases take four positions on the scope of the authority of the Secretary under this subsection. The plaintiff in A77-16, the Calista Regional Corporation, contends that in reserving public easements pursuant to subsection 17(b)(3) that the Secretary is authorized only to choose from among those easements identified by the LUPC pursuant to subsection 17(b)(1). Calista is joined in this position by many of the Village Corporations. Sealaska Regional Corporation, plaintiff in A77-17, and several Village Corporations, assert the more moderate position that although the Secretary is not bound to select from the easements identified by the LUPC he is at least bound in his selections by the public easement criteria contained in subsection 17(b)(1). The Secretary takes the position that his power to reserve easements under subsection 17(b)(3) of the Act is totally independent of subsection 17(b)(1). According to his analysis he is not bound to select from the easements recommended by the LUPC nor to use the 17(b)(1) criteria in reserving easements. The Public Easement Defense Fund, plaintiff in A75-204, maintains that the Secretary is bound by the criteria contained in subsection 17(b)(1) and that one of those criterion, “. . . a full right of public use and access . . . .” has not been followed by the Secretary.

The question of the Secretary’s authority became ripe for judicial review following the issuance of two orders published in the Federal Register. On February 12, 1976, the Secretary published Order No. 2982, dated February 5, 1976, which set forth guidelines applicable to the reservation of public easements under the Act.[3] Under section 5 of the order, the State Director of the Bureau of Land Management is authorized to reserve to the United States a continuous shoreline easement extending 25 feet above mean high tide along the marine coastline of the State. 41 Fed. Reg. 6295 (1976). The order further authorizes the reservation based upon present use, inter alia, of similar linear easements along both navigable and non-navigable rivers and streams.[4]

On March 18, 1976, the Secretary published in the Federal Register Order No. 2987, dated March 3, 1976, instructing the State Director, Bureau of Land Management, to reserve public easements to the United States in all conveyances made pursuant to the Act on mainland Alaska (except for an area in Southeast Alaska) for the transportation of energy, fuel, and natural resources which are the property of the United States or which are intended for delivery to the United States or which are produced by the United States. 41 Fed. Reg. 11331 (1976).[5] By this order the State Director is authorized to determine the specific location of such public easements at an indefinite future date. As written, therefore, the order authorizes the reservation of so-called “floating easements” over most of the lands patented to Village and Regional Corporations.

Finally, in addition to the easements authorized under the orders, the Secretary has reserved in all interim conveyances, and apparently intends to continue to reserve in future patents, a right-of-way for ditches and canals pursuant to 43 U.S.C. § 945, and a right-of-way for construction of railroads, telegraphs, and telephone lines pursuant to 43 U.S.C. § 975d. These last mentioned reservations will be considered at a later point in this memorandum.[6]

As an initial matter the court notes that jurisdiction in this matter is proper under 28 U.S.C. § 1331(a), and further that there is an actual case or controversy extant for which declaratory relief is an appropriate remedy. 28 U.S.C. § 2201.[7]

I.

Standard of Review

The first legal issue which must be considered is what standard of review the court should apply to determine the issues presented. As will subsequently be developed there is a certain amount of ambiguity concerning the scope of the Secretary’s authority to reserve public easements. At one point the Secretary contends that in such a situation his construction of the statute should be given great deference citing Udall v. Tallman, 380 U.S. 1, 13 L. Ed. 2d 616, 85 S. Ct. 792 (1965).[8] The Natives assert that the rule of construction which requires that “statutes passed for the benefit of dependent Indian tribes . . . are to be liberally construed, doubtful expressions being resolved in favor of the Indians.” Bryan v. Itasca County, 426 U.S. 373, 392, 48 L. Ed. 2d 710, 96 S. Ct. 2102 (1976), should tip the balance in their favor. See also Alaska Pacific Fisheries v. United States, 248 U.S. 78, 89, 63 L. Ed. 138, 39 S. Ct. 40 (1918); Squire v. Capoeman, 351 U.S. 1, 6-7, 100 L. Ed. 883, 76 S. Ct. 611 (1956). In response to the Natives’ argument the Secretary maintains that these groups are not dependent Indians but rather are well financed, profit making corporations. The court adopts, in part, the Natives’ position on this point.

The rule of Udall v. Tallman, supra, is subject to many qualifications. It is, of course, settled that when this rule of construction is applicable the interpretation given by the Secretary is not controlling in any instance but is only accorded deference. United States v. National Ass’n of Sec. Dealers, 422 U.S. 694, 719, 45 L. Ed. 2d 486, 95 S. Ct. 2427 (1975). This is but a part of the principle that it is the court, not the Secretary, which must ultimately construe the language used by Congress. Zuber v. Allen, 396 U.S. 168, 193, 24 L. Ed. 2d 345, 90 S. Ct. 314 (1969). In this case, additionally, the Secretary’s interpretation is not “longstanding,” United States v. National Ass’n of Sec. Dealers, supra, nor did the Secretary make known his views in Committee hearings, Zuber v. Allen, supra, nor does this case involve the interpretation of an administrative regulation. Northern Ind. Pub. Serv. Co. v. Walton League, 423 U.S. 12, 14, 46 L. Ed. 2d 156, 96 S. Ct. 172 (1975).

To a certain extent the Natives’ position has merit. While it is true that the Alaska Native Corporations are well financed that financing and the corporations themselves are the result of the Act. Prior to the Act Congress had the power totally to extinguish aboriginal land title without compensation. United States v. Atlantic Richfield Co., 435 F. Supp. 1009, 1029-1030 (D. Alaska 1977); Tee-Hit-Ton Indians v. United States, 15 Alaska 418, 348 U.S. 272, 279 & 285, 99 L. Ed. 314, 75 S. Ct. 313 (1955). Thus, although generally the Alaska Natives were not dependent in the sense that they were on reservations, their fate rested in the hands of Congress and they were dependent upon its protection and good faith. In these circumstances the language used, if ambiguous, should be resolved in their favor. Squire v. Capoeman, 351 U.S. 1, 6-7, 100 L. Ed. 883, 76 S. Ct. 611 (1956).

The court’s approach, therefore, will be to analyze the statutory language and the legislative intent to determine these issues. If ambiguities remain they will be resolved in favor of the Natives.

The Statutory Language

Contrary to the assertions of all parties the language of the statute is susceptible of all of the interpretations urged without violating any rules of statutory construction. It is necessary for a full understanding of the arguments, however, at this point briefly to trace the genesis of section 17(b).[9] During the period from 1969-1971 numerous bills were introduced in Congress concerning the settlement of the Alaska Natives’ land claims. The bill which eventually passed the Senate was S. 35. S. 35, as amended, contained a section 24(d) which was quite similar to the present section 17(b). With some insignificant variation in wording subsections 24(d)(1) and 24(d)(2) of S. 35 were identical to subsections 17(b)(1) and 17(b)(2), respectively, of the Act. The major alteration occurred in subsection 24(d)(3) which provided in S. 35 that:

Prior to granting any patent under this Act the Secretary shall consult with the Planning Commission and shall reserve such public easements as the Planning Commission has identified and recommends. (Emphasis added).

It is readily apparent that under S. 35 the relationship between the subsections was well defined. Under 24(d)(1) the LUPC would have identified public easements and under 24(d)(3) the Secretary would have been bound to reserve those easements which were recommended to him. There was no room for the exercise of discretion and the Secretary’s duty was merely ministerial.

The House version of the Act, H.R. 10367, contained no language pertaining to easements or a Planning Commission. These two bills went to a Conference Committee which made major alterations and compromises in many areas. It was from this Conference Committee that the Act emerged with the present language regarding easements. See U.S. Code Cong. and Admin. News, 92nd Cong., First Sess., p. 2257 (1971). With this basic background the contentions concerning the statutory language become more clear.

In focusing on subsection 17(b)(3) the Secretary presents a plausible interpretation of the statutory language. That section, standing alone, appears to grant the Secretary the power to reserve easements without qualification except that such easements must be necessary. The Natives’ contention, that such an interpretation reads subsection 17(b)(1) out of the Act, is without merit. Even if the Secretary is not bound by the LUPC identified easements or the 17(b)(1) criteria the LUPC would serve an important advisory role.

Nor is the Natives’ assertion, that this construction would leave the Secretary with unfettered and, hence, unreviewable authority, well taken. While it is clear that such an interpretation would broaden the Secretary’s authority over that asserted by the Natives the easement decisions would still be circumscribed by a statutory mandate of necessity. 43 U.S.C. § 1616(b)(3). While in the realm of judicial review of agency actions this limitation may be more theoretical than real, see Tiger Inter., Inc. v. C.A.B., 554 F.2d 926 at 933 (9th Cir. 1977), it does provide some basis for review. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410, 28 L. Ed. 2d 136, 91 S. Ct. 814 (1971).

Similarly, the interpretations adopted by the Natives, which would bind the Secretary either to choose from the LUPC identified easements or compel easement selection based on the 17(b)(1) criteria are plausible. These interpretations look to the statutory language as a whole rather than an isolated section. Cf. Train v. Colorado Public Interest Research Group, 426 U.S. 1, 9-10, 48 L. Ed. 2d 434, 96 S. Ct. 1938 (1976). Their central contention in this respect is that it is rather senseless to delineate specifically the types of easements which are appropriate for the LUPC to identify and then by a separate section give the Secretary the authority to disregard the easements identified by the LUPC and the criteria of 17(b)(1). This argument has some persuasiveness. It does seem to be a somewhat futile gesture to set forth carefully certain criteria and then have the eventual easement decisions be unfettered in any fashion by those criteria.

This construction does not re-establish the LUPC to the position it maintained under S. 35. Even the more radical position of Calista, which would bind the Secretary to choose from the LUPC identified easements would leave room for a choice not allowed under S. 35.

Nor would either Native position make meaningless, as the Secretary and State maintain, the Secretary’s duty under 17(b)(3) to consult with the State prior to selecting easements. Again, assuming the more extreme position, this process would allow some State input in addition to its LUPC membership, prior to a final determination of which easements were to be reserved. Both of these positions are also supported by the rule of construction which would have the term “such” contained in 17(b)(3) refer back to the easements or the criteria contained in 17(b)(1). Pohl v. State Highway Commission, 431 S.W.2d 99, 105 (Mo. 1968).

The precise position of the Public Easement Defense Fund on the issues seems to be that the Secretary is bound by the 17(b)(1) criteria. In this respect its interpretation based on the statutory language is on much the same footing as the Natives’. Having determined that the statutory language is capable of each of the several interpretations urged by the parties the court turns to the legislative history.

Legislative History

The development of section 17(b) has previously been traced. To summarize, this section originated as section 24(d) of S. 35. Under that bill the Secretary would have been required to reserve each easement identified and recommended by the LUPC. The House bill contained no easement provision. In a Conference Committee the language of S. 35 was changed to the language as it exists in the Act.

The portion of the legislative history which is most heavily relied on by the Natives is the Conference Committee Report. In discussing this provision the report states:

Subsection 17(b) of the conference report is substantially the same as section 24(d) of the Senate amendment. This subsection provides for the advance reservation of easements and camping and recreation sites necessary for public access across lands granted to Village and Regional Corporations.

U.S. Code Cong. and Admin. News, 92nd Cong., First Sess., p. 2257 (1971). Indeed, this report, which states that the two sections are substantially the same can be read to support the positions taken by the Natives. As pointed out by the government, however, this section of the report must be taken in context. The Conference Committee met in the waning days of the Congressional session in an attempt to work out a compromise bill from two very different pieces of legislation. This legislation was seen as necessary to clear the way for construction of the trans-Alaska pipeline. Many of the changes made in conference were major and it would not strain credulity to conclude that even the Secretary’s interpretation would have been considered substantially the same as S. 35 when compared with other changes that had been made. See generally Conference Report No. 92-746, Introduction, U.S. Code Cong. and Admin. News, 92nd Cong., First Sess., p. 2247 (1971).

Calista Corporation which takes the position that the Secretary is bound to choose from the easements identified by the LUPC makes on further argument concerning the Conference Committee compromise. It maintains that as S. 35 gave the Secretary no discretion to choose from the easements identified by the LUPC and that H.R. 10367 gave the Secretary no easement reservation power at all that a compromise could not have given the Secretary broad power. Of course, the court must agree that S. 35 gave the Secretary no discretion. Calista, however, reads too much into the silence of H.R. 10367. The legislative history of that bill indicates that the House was opposed to land use planning concepts in the framework of this legislation. House Report No. 92-523, Committee Amendments, U.S. Code Cong. and Admin. News, 92nd Cong., First Sess., p. 2200-01 (1971). Once the House conferees had agreed to the concept of land use planning in the Act it is not possible to ascertain what their views would be on the appropriate authority of the Secretary to reserve easements. It can just as easily be assumed that they would have granted unfettered discretion. In an analogous context the Supreme Court has stated that “the search for significance in the silence of Congress is too often the pursuit of a mirage.” Scripps-Howard Radio, Inc. v. FCC, 316 U.S. 4, 11, 86 L. Ed. 1229, 62 S. Ct. 875 (1942).

Juxtaposed to these portions of the legislative history, which can at best be considered generalized, are specific statements which forcefully undercut the position that the Secretary is bound by the LUPC identified easements. The Conference Committee Report states in two places that the LUPC is only an advisory body under the compromise legislation. One portion states:

A Joint Federal-State Land Use Planning Commission is established. The Planning Commission has no regulatory or enforcement functions, but has important advisory responsibilities.

Conference Report No. 92-746, U.S. Code Cong. and Admin. News, 92nd Cong., First Sess., p. 2249 (1971). At another point the Report states:

The Planning Commission has been modified by reducing the membership to ten members. In addition, the regulatory powers found in section 24 have been revised so that the Commission’s functions are limited to providing advise (Sic), coordination and making recommendations to State and Federal government.

Id. at 2257. In addition to these statements of the Conference Committee one of the sponsors of S. 35, Senator Jackson, recognized the limitation placed on the LUPC and lamented this change. 117 Cong. Rec. 46967 (Dec. 14, 1971).

The term “advisory” normally indicates that the commission has no power to bind anyone. An “advisory committee” may make recommendations but the receiver of those recommendations is free to ignore that advice. Harrington v. Tate, 435 Pa. 176, 254 A.2d 622, 624 (1969); McGraw v. Marion County Plan Commission, 131 Ind. App. 686, 174 N.E.2d 757, 760 (1961). This definition is in accord with recently enacted Federal legislation. The Federal Advisory Committee Act, 5 U.S.C. App. I, states that in general all matters under consideration by an advisory committee should be determined, in accordance with law, by the official, agency, or officer involved. 5 U.S.C. App. I § 2(b)(6); see also 5 U.S.C. App. I § 9(b).

Recognizing the potential effect of this language, Calista, which adheres to the position that the Secretary must choose from the LUPC identified easements, contends that its interpretation of the Act would cast the LUPC in an advisory role. According to Calista the LUPC would just be giving the Secretary advice and he could then exercise his judgment and actually choose from the easements identified. Such a construction, however, strains the meaning of the word “advisory”. Under Calista’s interpretation the LUPC would be regulatory to the extent that the Secretary could not go beyond its recommendation.

Given the uncertainty in the statutory language and the generalized nature of the legislative history supporting Calista’s position, the court must conclude on the basis of these specific references that the Secretary is not bound to choose from the LUPC recommended easements. As the legislative history on this point is unambiguous there is no need to invoke the rule of construction which would resolve this issue in favor of the Natives.[10]

Of course, the preceding holding, and its rationale, have no effect upon the contention that the Secretary is bound by the public easement criteria contained in subsection 17(b)(1) as is urged principally by Sealaska and joined by the Easement Defense Fund. The quest for a resolution of this issue leads to the consideration of the purpose of the public easement section of the Act.

As previously mentioned the Act grants to the Alaska Natives 40 million acres of land in Alaska. The specific land which comprised the grant to eligible entities was not delineated. Rather the Village and Regional Corporations were to choose their land from the areas designated in conformity with the Act. In such circumstances Congress was justifiably concerned that certain portions of the State which were to remain in the public domain would become inaccessible, or landlocked by Native lands. It appears, therefore, that the public easements were to be reserved to provide access to the lands not selected, and they were not intended to provide the public with a right to use the Native lands for recreational activities. This construction of the Act is supported by its language and legislative history.

Subsection 17(b)(1), in defining the scope of public easements, states that they are to be “across lands” which would indicate an easement for travel.[11] In addition to this language there is support for this construction in the legislative history.

S. 35, the Senate version of the Act, contained two easement provisions. Section 24(d), the predecessor to section 17(b), has already been discussed in detail and it used the term “across”. The bill also contained a section 16(b) which, inter alia, provided the Secretary with the power to grant easements on lands withdrawn under that Act. In explaining this provision the committee stated it provided:

[Easements] or rights-of-way for public purposes upon withdrawn lands only with the approval of the Commission and the giving of a commitment by the grantees to post bond and to conserve natural resources of the land.

S. Rep. No. 92-405, 92nd Cong., First Sess., 146 (1971)(emphasis added).

It thus appears that this section which created easements that the committee referred to as “upon” the land and which required a commitment to preserve natural resources was the section under which use of the Natives’ land for recreation was to occur. The section was omitted from the Act.

In addition the public easement section was included as an integral part of the portion of the Act dealing with the LUPC. As the Senate explained, the principal function of the LUPC was to preserve and protect the public’s interest in federal lands following enactment of the ANCSA:

One of the most important problems facing the State of Alaska and the Federal Government in connection with the settlement of the land claims issue and gradual lifting of the administrative and Secretarial Order “land freeze” that has operated in Alaska over the past five years is to develop rational and coherent land use planning provisions which will operate to preserve the environment and protect the public interest in Federal lands in Alaska. . . .

S. Rep. No. 92-405, 92nd Cong., First Sess., 69 (1971)(emphasis added).

This statutory scheme in section 17 gave the LUPC the duty to plan and make recommendations concerning the public use of lands remaining in the public domain. See 43 U.S.C. §§ 1616(a)(7)(A), (a)(7)(E), and (a)(7)(I). While it was also to undertake some planning functions with respect to Native lands, see 43 U.S.C. §§ 1616 (a)(7)(B) and (a)(7)(C), those functions did not relate to the public use of these lands. This is much the same function that the LUPC had under S. 35.

Had that bill been enacted without the change in its subsection 24(d)(3) which has caused the present controversy there seems little doubt that the public easements identified and recommended by the LUPC would have had to have been to provide access to public lands.[12] Nothing in the changed role of the LUPC under the Act, the elimination of a recreational easement provision or the broader discretion granted the Secretary suggests that the appropriate purpose of the public easements was altered in any way.

With this overall purpose of public easements in mind the court turns to the issue of whether the Secretary is bound in his choices by the specific criteria found in subsection 17(b)(1). The court concludes that he is so bound.

In relegating the LUPC to an advisory role the Conference Committee maintained the criteria which defined the appropriate purposes of public easements. These criteria appear to express a Congressional intent to confine LUPC identified public easements to the specifically enumerated categories. These categories fully conform to the general legislative intent in allowing public easements. While an interpretation of the Act which would utilize these guidelines solely to define the role of the LUPC does not render the criteria meaningless it does certainly relegate them to a position of little consequence. The more logical inference is that these guidelines, which originally were adopted by the Senate as part of its land-use planning provision, continue to express the Congressional intent as to the purposes for and uses of public easements.

The result requested by the Secretary would, in reality, leave the Secretary with virtually unfettered discretion to reserve easements on the Natives’ land. While, as previously pointed out, this discretion would be bounded and reviewable under a statutory mandate of “necessity”, 43 U.S.C. § 1616(b)(3), such a limit would in fact be illusory when considered against the appropriate scope of judicial review of such agency decisions. See generally Tiger Intern., Inc. v. Civil Aeronautics Bd., 554 F.2d 926 (9th Cir. 1977); Henke, Judicial Review of Local Governmental Administrative Decisions in California, 10 U.S.F.L. Rev. 361, 382-85 (1976). This result would potentially allow the Secretary to use this small subsection to negate substantial portions of the ANCSA. It seems unlikely that such an outcome was either anticipated or intended by Congress.

This construction is further supported although not dictated by three additional considerations. The Conference Committee Report on this section did state that it remained “substantially the same as section 24(d) of the Senate amendment.” U.S. Code Cong. and Admin. News, 92nd Cong., First Sess., p. 2257 (1971). As previously developed[13] this language may not automatically eliminate the Secretary’s proposed interpretation but it is certainly more supportive of that adopted herein. Secondly, the term “such public easements” contained in subsection 17(b)(3) can be interpreted to refer back to the types of public easements enumerated in subsection 17(b)(1). Pohl v. State Highway Commission, 431 S.W.2d 99, 105 (Mo. 1968). Finally, this interpretation is supported by the standard of review previously considered. Bryan v. Itasca County, 426 U.S. 373, 392, 48 L. Ed. 2d 710, 96 S. Ct. 2102 (1976).

Section 19 Lands

The final question under the legal issue of the scope of the Secretary’s authority to reserve easements pursuant to section 17(b) concerns lands which were previously reservation lands. Section 19 of the Act, 43 U.S.C. § 1618, revoked most of those reservations and gave the Natives thereon the choice of accepting the benefits of other sections of the Act or taking the surface and subsurface estate in the lands which were previously reservation lands. It is contended that public easements under section 17(b) cannot be reserved upon any lands which were reservation lands prior to the Act.

The court notes at the outset that the Village Corporation raising this issue elected not to take the surface and subsurface title to its prior reservation but rather elected to receive the other benefits under the Act. Hence, the court does not consider the issue of the applicability of section 17(b) to lands which were formerly reserves and the Village chose to retain the surface and subsurface thereof pursuant to section 19(b). The question presented then is whether there may be public easements reserved on lands which are chosen by the Village under other sections of the Act but which formerly were reservation lands.

Section 19(a) of the Act revoked all prior reservations. With the possible exception of the lands not at issue here there is nothing in the Act which evinces an intent to treat these lands differently than other lands. The apparent intent as to Villages which chose to take their benefits under the Act, other than title to the surface and subsurface of their prior reservations, was to treat their lands in precisely the same manner as other land taken under the Act. The fact the section 19 does not mention section 17(b) is of no significance as none of the sections of the Act allowing land distribution refer to the easement section. See e.g., 43 U.S.C. § 1611. 

Tyonek would have the court reach a different conclusion based upon the fact that subsection 17(b)(2) protects valid existing rights of access from impairment by the public easement section. It argues that at the time the ANCSA was enacted it had a valid existing right to the reservation land which may not be diminished by section 17(b). Subsection 17(b)(2), however, speaks only to diminution or limitation on access. Assuming, arguendo, that these former reserves, which were expressly revoked by section 19, create rights under subsection 17(b)(2), the reservation of public easements does not diminish any prior rights of access.

As a second argument Tyonek urges essentially that there could be no valid public use of its reservation lands prior to the Act and as all public easements must be based on such use that none are allowed on these lands. As will be subsequently developed the court does not accept the contention that all easements must be reserved on the basis of valid pre-Act use and this argument must fail.[14]

II

Having determined the scope of the Secretary’s authority to reserve public easements the court turns its consideration to the Secretary’s orders.

Order 2982-Marine Coastline

Order No. 2982 purports to reserve, “… a continuous linear easement 25 feet in width upland of and parallel to the mean high tide. . . .” Section 5(b)(2). In a subsequent section the order states that this easement will not be reserved if prior to conveyance it is determined to be impracticable for use by the general public. Section 5(c)(2)(A). This tentative reservation is challenged as being contrary to the statutory intent of section 17(b).

Prior to proceeding to consider this issue directly it is necessary to present an overview of the ownership and control of various categories of waterways and the lands lying under those waterways in Alaska. Pursuant to the Alaska Statehood Act the Submerged Lands Act of 1953 applies to Alaska. 48 U.S.C. Prec. § 21, Sec. 6(m). The Submerged Lands Act confers to the States:

. . . title to and ownership of the lands beneath navigable waters within the boundaries of the respective States, and the natural resources within such lands and waters . . . .

43 U.S.C. § 1311(a)(1). The Act further states:

Nothing in this chapter shall be construed as affecting . . . the laws of the States which lie wholly or in part westward of the ninety-eighth meridian, relating to the ownership and control of ground and surface waters; and the control, appropriation, use, and distribution of such waters shall continue to be in accordance with the laws of such States.

43 U.S.C. § 1311(e). The court takes judicial notice of the fact that Alaska lies westward of the ninety-eighth meridian. Rule 201(b)(2), Fed. R. Evid. Thus, under federal law ownership and control of the land under navigable waters is confirmed in the State. See also A.S. § 44.03.020.

The ownership of ground and surface waters is to be determined according to State law. Under the Alaska Constitution and State law the right to use such waterways is placed in the people of the State. Alaska Const., Article VIII, Section 3; A.S. § 46.15.030.

Accordingly, the State owns or controls the land beneath navigable waters, and the people of the State have the right to use the water itself on non-navigable rivers and streams.

In apparent recognition of the fact that there would be valid public uses of the State’s water, even when surrounded by lands withdrawn pursuant to the ANCSA, n14a the public easement provision states that easements shall be reserved “at periodic points along the courses of major waterways.” The Natives assert the reservation of the continuous shoreline easement is not the reservation “at periodic points” and, hence, must be voided. This assertion is well taken.

The purpose of the easements along waterways is to provide a place for docks, campsites, and such facilities to service those who are properly using the public waters. This purpose is apparently accommodated by the reservation of site easements under section 5(b)(4) of the order.[15] By specifically stating that the reservation of easements along major waterways was to be “periodic” Congress clearly did not evince an intent to allow an easement of the type reserved here. Thus, this easement must be declared void. United States v. Larionoff, 431 U.S. 864, 873 n. 12, 97 S. Ct. 2150, 53 L. Ed. 2d 48 (1977); Dixon v. United States, 381 U.S. 68, 74, 14 L. Ed. 2d 223, 85 S. Ct. 1301 (1965); Cf. Morton v. Ruiz, 415 U.S. 199, 232, 39 L. Ed. 2d 270, 94 S. Ct. 1055 (1974).

The court does not hold that a continuous easement along portions of the coastline may never be reserved. Such a reservation, however, must be necessary to provide public use and access to other public lands which may, of course, include the lands confirmed to the State pursuant to the Submerged Lands Act. The difficulty with the present reservation is that it exceeds those criteria. It includes among its purposes and criteria recreation, rather than access for recreation as provided in subsection 17(b)(1). It also states that this reservation is for travel along the shore but there is no showing of necessity as is required even by 17(b)(3).

Recreational Rivers and Streams

In another portion or order 2982 the Secretary has attempted to reserve a similar easement 25 feet in width along the banks of rivers and streams having highly significant present recreational use as well as an easement along the beds of those waterways. The reservation of this easement raises issues not present in the marine coastline reservation.

The first issue is whether the term “major waterways” as used in the Act is the same as “major navigable waterways.” If so this section would be extremely limited as a fair inference from the briefs is that there are only five major navigable waterways in Alaska. As previously developed the purpose of the easements at periodic points along major waterways is to provide docking and campsite easements for those using the public waterways. As the public has the right to use all of the waterways in the State it would be an unduly restrictive construction to equate the term waterways to navigable waterways when considered with the purpose of the subsection.

The next issue concerns the date which has been set for ascertaining “present recreational use.” The Natives maintain that all such easements must be reserved on the basis of their use on the date the Act was passed. The Secretary has adopted a date of December 17, 1976, five years later. Because of the population growth and increased use of Alaska’s waterways this is an issue of some significance.

It is claimed by the Natives that the Secretary has delayed distribution of land under the Act and then used his own delay to choose a date far beyond that contemplated by Congress. The Secretary asserts that this court cannot review this decision citing Arizona Power Authority v. Morton, 549 F.2d 1231, 1239-40 (9th Cir. 1977). Arizona Power, however, did not hold such actions absolutely unreviewable and, indeed, stated that if clearly contradictory to legislative intent that such actions may be considered. Cf. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 28 L. Ed. 2d 136, 91 S. Ct. 814 (1971).

The public easement section itself contains no specific date which should be considered in reserving easements. The intent of the section, however, indicates that the date of enactment is not the appropriate date. This section was intended to preserve the right of public access to lands remaining in the public domain after Native selection. It is entirely possible that such lands may not have been used at all prior to December 18, 1976, and that it would still be appropriate to reserve an easement to them for future use. The date chosen by the Secretary is entirely consistent with the purpose of the section.

At various points in the course of the briefs the contention has been made that public easements can be reserved only on the basis of valid existing use. If such an interpretation were correct the argument on the present point and other related issues would be more compelling as the Secretary could not validate use by delaying conveyance. This contention finds its origins in subsection 17(b)(2) which protects access to valid existing uses.

Subsection 17(b)(2), however, which protects access to valid existing uses appears to stand independently from the portions of the section which apply to the reservation of public easements. Its purpose is to ensure that those who have valid existing uses do not lose access rights because of the public easement section. It maintains prior access in spite of the public easement section rather than serving as a limit on the scope of public easements.

With these two preliminary matters considered the court turns to the essence of the argument. The Natives contend here, similar to the coastline easement argument, that easements along the shores of these waterways may only be reserved at periodic points. While the court reaches the same conclusion the footing is a bit more sure. As previously developed these types of easements are intended to provide camping and docking sites for those using the public waterways. With the coastline easement, however, the basis upon which future easements may rest and which was asserted as a reason to validate that portion of the order was in the access to State lands submerged along the coastline. Where necessary these easements may also be reserved along rivers and lakes constituting navigable waterways. As to the hundreds or thousands of other “major waterways,” however, the State does not own the stream bed and such easements in aid of access are unnecessary.

Certainly, if these river-bank easements were intended merely to cross the Natives’ land to reach other public lands they would be as valid as any other such easement. The order in this respect, however, reserves easements far in excess of those necessary for such access and is not predicated upon that need which appears to be an afterthought. United States v. Larionoff, 431 U.S. 864, 873 n. 12, 97 S. Ct. 2150, 53 L. Ed. 2d 48 (1977); Dixon v. United States, 381 U.S. 68, 74, 14 L. Ed. 2d 223, 85 S. Ct. 1301 (1965).

The Secretary offers absolutely no authority for the reservation of the beds of these waterways and there is no apparent justification for those reservations. Hence those easements may not be reserved.

The court has considered the other issues raised regarding this order and finds them not to be appropriate for summary judgment at this time.[16]

Order 2987

Order 2987 was promulgated to establish easements for the transportation of fuel and natural resources. Apparently in recognition of the fact that it would be difficult to establish the precise location of such an easement without knowing the precise location of future mineral deposits this easement was not specifically located but rather was to be reserved in all patents. This creates a so-called “floating easement” which, if valid, will be specifically located when the necessity arises.

The first attack on this easement is that the Secretary’s authority to reserve a pipeline corridor was exhausted with the reservation of the trans-Alaska pipeline corridor pursuant to section 17(c), 43 U.S.C. § 1616(c). Under that section the Secretary was given the authority which later was exercised to reserve a pipeline corridor across Alaska. No land from the pipeline corridor was subject to Native selection. Id. The Natives contend that the Secretary may not now also reserve pipeline easements on Native land under the authority of section 17(b). Rather, they assert that if such a corridor is necessary in the future that the government should condemn the Natives’ land and pay just compensation for the use. The court cannot accept this proposition.

It is true that the pipeline corridor reserved pursuant to section 17(c) exhausted the Secretary’s authority under that section. All of the singular terms “the” and “a” appear to refer to that authority. The issue, however, is whether he may also reserve an easement for transportation of minerals under section 17(b). The criteria set out in subsection 17(b)(1) specifically refer to transportation. It is not in contravention of the language or purposes of section 17(b) to allow easements for the transportation of natural resources from public lands.

The next consideration is whether such transportation easements must be specifically located. If section 17(b) had remained as it was in S. 35, section 24(d), this issue would be more certain. Under that section, as previously developed, the LUPC was to identify and recommend easements which the Secretary was required to reserve.[17] Under that scheme the LUPC was to “identify” easements. Subsection 24(d)(1). It was further stated that the LUPC was to receive input on the proposed “location” of public easements. Subsection 24(d)(2). This language indicates that the LUPC identified easements were to have a specific location and leaves little room for the argument that there were to be floating easements.

With the removal of the mandatory language from subsection 24(d)(3) in the final version of the Act the statutory language provides less guidance. The holding that the Secretary is bound by the LUPC criteria does not necessarily extend to this other language and, therefore, the court turns to different considerations.

The ANCSA was passed to give the Natives a fair and just settlement for their aboriginal land claims. 43 U.S.C. § 1601(a). In granting the Natives land it was assumed that the choices would be made on the basis of economic potential, Aleut Corp. v. Arctic Slope Regional Corp., 421 F. Supp. 862, 866 (D. Alaska 1976); U.S. Code Cong. & Admin. News, 92nd Cong., First Sess., p. 2195 (1971). It seems rather certain from the general purpose of the Act that Congress did not envision the narrow purpose of section 17(b) as creating a cloud on the title and usability of all of the Natives’ land.

The court can certainly understand the motivation of the Secretary in this instance. He is being asked to reserve a specific easement at this time for uncertain future use. Clearly it would be more convenient to reserve the floating easement but convenience is not the touchstone of his authority. The Secretary has not attempted to reserve other floating easements for future unknown public access for recreation and, indeed, he would be hard put to justify such a reservation. While the energy crisis of which the Secretary speaks may make the nature of the material travelling over the utility transportation easement unique, it does not alter the nature or requirements of the easement itself. Nothing in the Act indicates that this easement should be treated differently than others and the overall intent of the Act strongly cuts against such an easement. Hence, this floating easement and order 2987 cannot stand. Dixon v. United States, 381 U.S. 68, 74, 14 L. Ed. 2d 223, 85 S. Ct. 1301 (1965); United States v. Larionoff, 431 U.S. 864, n. 12, 97 S. Ct. 2150, 53 L. Ed. 2d 48 (1977); 45 U.S.L.W. 4650, 4652, n. 12.

III.

Other Statutory Easements

In addition to the previously considered orders the Secretary has reserved and indicates an intent to reserve in the future easements for ditches and canals pursuant to 43 U.S.C. § 945, and for railroads, telegraph and telephone lines pursuant to 43 U.S.C. § 975d. Those sections provide that;

In all patents for lands taken up after August 30, 1890, under any of the land laws of the United States or on entries or claims validated by the Act of August 30, 1890, west of the one hundredth meridian, it shall be expressed that there is reserved from the lands in said patent described a right of way thereon for ditches or canals constructed by the authority of the United States.

43 U.S.C. § 945.

In all patents for lands taken up, entered, or located in Alaska after March 12, 1914, there shall be expressed that there is reserved to the United States a right of way for the construction of railroads, telegraph and telephone lines . . . .

43 U.S.C. § 975d.

The Natives mount several direct attacks on the facial applicability of these two statutes. They contend that these lands were not taken up under any land laws of the United States as is necessary to trigger 43 U.S.C. § 945. As to both sections they assert that these land claims, resting on aboriginal rights, preceded the effective dates of both of these statutes. Finally they assert that these ANSCA conferred lands were not “taken up” within the meaning of these sections. While the court finds some merit in the first and last of these contentions it is not necessary to pass upon those issues.

The ANCSA contains a preemption section which states:

To the extent that there is a conflict between any provision of this Act and any other Federal laws applicable to Alaska, the provisions of this Act shall govern.

Pub. L. 92-203, 85 Stat. 688, Section 26.[18] The easements reserved to the United States under the two non-ANCSA sections are floating easements. For the reasons previously developed the court concludes that such floating easements were not contemplated over ANCSA lands and these provisions must be considered as conflicting and inapplicable.

As a second related basis for this result the court notes that the criteria of subsection 17(b)(1) would appear to allow an easement for these purposes if it were specifically located. This specific right to reserve such easements must be seen as superceding the prior general legislation and would prevail even absent section 26. Cf. State Department of Highways v. Crosby, 410 P.2d 724, 728 (Alaska 1966). This conclusion is further bolstered by the fact that under ANCSA easements there are certain procedural safeguards not present in these other Acts. Accordingly, although reservations of specific easements for these purposes pursuant to subsection 17(b)(1) and 17(b)(3) might be appropriate these easements cannot stand.

Certification

While the memorandum and order and the simultaneously executed judgment entered hereon disposes fully of causes A77-16 and A77-17 it does not so dispose of A75-204. That complaint asserts other claims for relief and as factual issues remain as to this claim which cannot be determined in this memorandum it is not possible to enter a final judgment on this claim in accordance with Rule 54(b), Fed. R. Civ. Pro. In order to allow those entities who are parties to A75-204 to present their appeal at this time and as the court feels that this order involves a controlling question of law as to which there is a substantial ground for difference of opinion and an immediate appeal from this order may materially advance the termination of this litigation the court so certifies in accordance with 28 U.S.C. § 1292(b). Those parties to A75-204 who are not parties to the other actions who wish to appeal at this time should heed carefully the procedural differences between 28 U.S.C. § 1292(b) and the normal appeal process.

Accordingly IT IS ORDERED:

THAT the pending motions for summary judgment and partial summary judgment are granted and denied in conformity with this memorandum.

DATED at Anchorage, Alaska, this 7th day of July, 1977.

JAMES A. VON DER HEYDT / United States District Judge

I. MOTIONS PRESENTED

At docket 45, defendant Dianne Johnson Williams (“Johnson”) moves for leave to file her first amended answer and counterclaim to quiet title based on adverse possession. Plaintiff Ahtna, Inc. (“Ahtna”) opposes the motion at docket 50. Johnson replies at docket 52. Ahtna moves at docket 54 for summary judgment on its claims for declaratory and injunctive relief, and trespass. Johnson opposes the motion at docket 67 and cross moves for summary judgment on her claim of adverse possession at docket 68. Ahtna replies to her opposition and opposes Johnson’s motion at docket 94. Johnson replies at docket 96. Ahtna also moves at docket 64 to strike names from Johnson’s witness list that were not previously disclosed. Johnson opposes the motion at docket 71. Ahtna replies at docket 77. This court set forth its preliminary opinion at docket 99. Oral argument was heard on June 3, 2009. Based on the parties’ arguments, the court now enters its final order.

II. BACKGROUND

The parties do not appear to dispute the relevant facts. Johnson and her former husband, Henry Williams, first occupied Lot 1 U.S.S. 5590 (the “Lot”), a five-acre parcel of land located near Cantwell, AK, in 1965 as a headquarters site. Johnson and Williams filed Headquarters Site Location Notice F-34755 in August 1965, constructed a cabin, developed access to the property, and applied to acquire title to the Lot. However, Johnson and Williams failed to complete their application within the Bureau of Land Management’s (“BLM”) five-year requirement. On August 19, 1970, the statutory life of the William’s entry expired. Johnson and Williams sought to have their application reinstated, but the BLM denied their request on January 26, 1971. Nevertheless, Johnson and Williams remained on the Lot.

On January 17, 1969, the United States issued Public Land Order (“PLO”) 4582, which withdrew all unreserved public lands in Alaska and reserved them under the jurisdiction of the Secretary of the Interior for determination. PLO 4582 was modified on December 8, 1970 to extend the withdrawal period for lands subject to PLO 4582 through September 30, 1971. Shortly after the end of the withdrawal period, on December 18, 1971, Congress enacted the Alaska Native Claims Settlement Act (“ANCSA”), 43 U.S.C. § 1601, et seq.[1] ANCSA was enacted to provide a fair and just settlement of all aboriginal land claims in Alaska. Pursuant to 43 U.S.C. § 1611(a), Ahtna, one of the Regional Corporations created pursuant to ANCSA for the benefit of Alaska Natives, received title to the Lot from the United States on October 23, 1981 by Interim Conveyance No. 443 (“I.C. 443”). On July 26, 1983, Johnson and Williams submitted an application to Ahtna seeking reconveyance of the Lot pursuant to ANCSA § 14(c)(1) (43 U.S.C. § 1613(c)(1)), which Ahtna denied on March 1, 1990 on the ground that BLM had rejected their headquarters site application which rendered them trespassers subject to the judicial interpretation of § 14(c)(1) precluding failed land entrants and trespassers from claiming a right to ANCSA lands.[2]

In 1980, prior to Ahtna’s denial of the application, Congress enacted the Alaska National Interest Lands Conservation Act of 1980 (“ANILCA”), 43 U.S.C. § 1636.[3] ANILCA established the Alaska Land Bank Program, a land conservation measure which provided private land owners the option of placing their undeveloped and unleased lands into a cooperative management program with the Secretary of the Interior, or with the State of Alaska, and provided holders of ANCSA lands certain immunities from claims of adverse possession and real property taxes. In 1988, ANILCA was amended to set forth definitions of “developed” and “leased.”[4] In 1998, ANILCA was again amended by the ANCSA Land Bank Protection Act to specifically exclude from the definition of “developed” “[a]ny lands previously developed by third-party trespassers.”[5] The relevant effect of the amendment was to prevent any adverse possession claims by third-party trespassers who had developed ANCSA lands.

Ahtna filed suit on January 8, 2008 seeking declaratory and injunctive relief with respect to its trespass claim against Williams, who is now deceased, and Johnson, who remains on the Lot. Ahtna also seeks trespass damages for the improvements made to the Lot and nuisance damages arising from alleged environmental hazards “creating a high probability of contamination.” Johnson initially answered Ahtna’s complaint by generally denying the allegations, but has moved for leave to amend her answer to add a counterclaim to quiet title based on adverse possession. Ahtna opposed the motion and argued that Johnson’s amendment would be futile. Ahtna subsequently moved for summary judgment on the ground that Johnson’s adverse possession claim is barred because it was not perfected prior to the 1998 ANILCA amendment which, as discussed above, prohibits claims of adverse possession by third-party trespassers on ANCSA lands. Johnson counters that her claim was perfected prior to 1998 and that the 1998 amendment cannot apply retroactively to bar her adverse possession claim.

On February 2, 2009, Ahtna also moved to strike names not previously disclosed from Johnson’s witness list on the ground that Johnson’s late disclosure is prejudicial to Ahtna’s ability to conduct discovery. Johnson acknowledges her untimeliness, but files a concurrent motion to amend the date of the close of discovery to accommodate Ahtna’s objections to her witness list. Johnson proposes that discovery close 45 days after this court rules on the parties’ cross motions for summary judgment. Ahtna does not oppose the motion to amend the scheduling order. The court considers the parties’ various motions below.

III. STANDARD OF REVIEW

Federal Rule of Civil Procedure 56 provides that summary judgment should be granted when there is no genuine dispute about material facts and when the moving party is entitled to judgment as a matter of law. The moving party has the burden to show that material facts are not genuinely disputed.[6] To meet this burden, the moving party must point out the lack of evidence supporting the nonmoving party’s claim, but need not produce evidence negating that claim.[7] Once the moving party meets its burden, the nonmoving party must demonstrate that a genuine issue exists by presenting evidence indicating that certain facts are so disputed that a fact-finder must resolve the dispute at trial.[8] The court must view this evidence in the light most favorable to the nonmoving party, must not assess its credibility, and must draw all justifiable inferences from it in favor of the nonmoving party.[9]

IV. DISCUSSION

A. Motions for Summary Judgment and Johnson’s Motion for Leave to Amend

The central question raised by the parties’ cross motions for summary judgment and Ahtna’s assertion that the motion to amend is futile is whether Johnson perfected her adverse possession of the Lot prior to the 1998 ANILCA amendment. To Ahtna, Johnson could not have perfected her claim of adverse possession until after the 1998 ANILCA amendment. It is Ahtna’s position that at the earliest, Johnson’s claim could not have been perfected until March 1, 2000, 10 years after Ahtna denied Johnson’s 14(c)(1) application for reconveyance. Alternatively, Ahtna argues that Johnson’s claim could not have been perfected until September 17, 2003, 10 years after her counsel repudiated Ahtna’s superior title to the Lot. According to Johnson, her claim was perfected on October 23, 1991, 10 years after Ahtna received title to the Lot from the United States. Contrary to Ahtna’s contention, Johnson argues that her § 14(c)(1) application did not interrupt her period of adverse occupancy. For the reasons discussed below, the court concludes that Johnson’s claim of adverse possession is barred by 43 U.S.C. § 1636(d)(1)(A)(i).

In Alaska, claims of adverse possession are governed by AS 09.10.030. Under AS 09.10.030, Johnson may claim title to the Lot by adverse possession only if she shows by clear and convincing evidence[10] that she has adversely possessed the property for ten consecutive years. AS 09.10.030 provides:

“[A] person may not bring an action for the recovery of real property or for the recovery of the possession of it unless the action is commenced within 10 years. An action may not be maintained under this subsection for the recovery unless it appears that the plaintiff, an ancestor, a predecessor, or the grantor of the plaintiff was seized or possessed of the premises in question within 10 years before the commencement of the action.”[11]

“[I]n order to acquire title by adverse possession, the claimant must prove, by clear and convincing evidence, . . . that for the statutory period his use of the land was continuous, open and notorious, exclusive and hostile to the true owner.”[12] Hostility of possession means that one in possession of the land claims the exclusive right to that land. Mere possession does not show hostility to the owner or adversity.[13] However, proof of permissive possession by an occupant destroys adversity.[14] Possession that is accompanied by any express or inferable recognition of the right of the real owner cannot be adverse.[15] “In an action based on adverse possession, the law as it exists at the time the adverse possession is perfected and title passes controls, rather than the law as it exists at the beginning of the adverse occupation.”[16]

As noted above, Johnson filed a claim to the Lot with Ahtna under § 14(c)(1) on July 26, 1983, which Ahtna rejected on March 1, 1990. Ahtna denied the claim pursuant to Donnelly v. United States, which held that § 14(c)(1) could not operate as “a sort of amnesty provision extending rights to individuals who are merely trespassers, failed homesteaders, or land users without any vested rights prior to December 1, 1971, because there was no indication of congressional intent to override the established principle that individuals could obtain no rights to withdrawn lands.”[17] However, Ahtna noted in its denial letter that it would be possible for Johnson to “negotiate a long-term lease or other mechanism that would allow continued occupancy of the [Lot].”[18] Johnson declined to pursue Ahtna’s offer and retained counsel to contest its denial of the § 14(c)(1) application and its August 19, 1993 demand that she remove her personal belongings from the property within 30 days. Johnson’s counsel repudiated Ahtna’s claim of title on September 17, 1993.

Johnson vigorously argues that her adverse occupancy commenced no later than October 23, 1981, the date when Ahtna was granted title to the Lot by I.C. 443. However, the court concludes that Johnson’s possession of the Lot could not have been adverse until September 17, 1993. From 1981 to 1993, Ahtna permitted Johnson to remain on the land. This is supported by the fact that Ahtna appears to have known of the occupancy by virtue of Johnson’s § 14(c)(1) application, but did not demand that Johnson vacate the Lot until August 1993. It is also supported by the fact that Johnson affirmatively recognized Ahtna’s superior title to the Lot when she applied to Ahtna in 1983 for a reconveyance of the Lot pursuant to § 14(c)(1). At oral argument, counsel for Johnson suggested that Ahtna had acquiesced to, but did not permit, Johnson’s occupancy, citing McDonald v. Harris, which held that “[t]he key difference between acquiescence and permission is that a permissive use requires the acknowledgment by the possessor that he holds in subordination to the owner’s title.”[19] As mentioned above, Johnson’s § 14(c)(1) claim represented an acknowledgment that she held the Lot in subordination to Ahtna’s title, rendering Johnson’s possession permissive under Alaska law. Therefore, because Johnson’s possession of the parcel was permissive until 1993, her claim of adversity is necessarily destroyed.

Johnson contends that her application had no legal effect because § 14(c)(1) imposes a mandatory obligation on Native corporations to reconvey land. This strikes the court as “bootstrapping,” for there is no obligation to convey to a trespasser. In other words, the Native corporation’s § 14(c)(1) duty owed generally to legitimate occupants does not change the fact that Ahtna possessed title to this particular property. To elaborate, because § 14(c)(1) was intended to require a Native corporation to reconvey land only where an applicant demonstrated legal right to the occupied land, only an applicant with a valid executory interest would be entitled to a reconveyance. Johnson’s right to the Lot was withdrawn by the United States in 1971 pursuant to PLO 4582 and the passage of ANCSA, which the BLM confirmed on January 26, 1971. The BLM’s withdrawal of the land rendered Johnson a failed entrant. Thus, any executory interest Johnson might otherwise have claimed was extinguished. Johnson also urges this court to adopt the holdings of the Alaska Supreme Court’s decisions in Kenai Peninsula Borough v. Cook Inlet Region, Inc., 807 P.2d 487 (Alaska 1991) and Kenai Peninsula Borough v. Tyonek Native Corp., 807 P.2d 502 (Alaska 1991). Both decisions predate the Land Bank Protection Act of 1998, and neither involves the precise question of whether land “developed” by an alleged adverse occupant is subject to a claim of adverse possession, this court declines to apply their holdings to the instant matter. In any event, a review of these decisions indicates that the Alaska Supreme Court’s reasoning was based on an attempt to reconcile the definition of “developed” as used in an Alaska property tax statute with its use in ANCSA. Here, the question is decidedly different – viz., whether Ahtna is subject to adverse possession claims of title asserted by third-party trespasser/developers under § 1636(d)(1)(A)(i). Finally, because Williams failed to perfect her adverse occupancy prior to passage of the Land Bank Protection Act of 1998, the court sees no need to address her statutory retroactivity argument concerning § 1636(d)(1)(A).

As discussed at oral argument, the court cannot rule on Ahtna’s claim for injunctive relief until the parties have adequately addressed how and when Johnson is expected to vacate the land, the fate of her improvements to the land, and other issues associated with a permanent injunction. To the extent Ahtna’s motion for summary judgment seeks a permanent injunction, it must be denied without prejudice.

B. Motion to Strike Names Not Previously Disclosed from Witness List

Johnson’s unopposed motion to amend the court’s scheduling order at docket 72 was granted at docket 91. This extended discovery to 45 days from the court’s final decision on the pending substantive motions. The extension of discovery reduces the prejudice to Ahtna in allowing Johnson to make a late disclosure of witnesses. In addition, this order affords Ahtna substantial relief which virtually eliminates any prejudice to Ahtna. Under these circumstances, Ahtna’s motion at docket 64 to strike names not previously disclosed from Johnson’s final witness list is denied.

V. CONCLUSION

For the reasons above, Ahtna’s motion for summary judgment at docket 54 is GRANTED in part and DENIED in part as follows: the court grants Ahtna’s motion with respect to Counts I and III, but not Count II. On the other side of the coin, Johnson’s motions at dockets 45 and 68 are DENIED. Finally, Ahtna’s motion at docket 64 is DENIED.

DATED at Anchorage, Alaska, this 4th day of June 2009.

/s/ John W. Sedwick

UNITED STATES DISTRICT JUDGE

Paug-Vik, Inc., the native village corporation of the village of Naknek, has appealed the Superior Court’s decision that Wards Cove Packing Company, Inc., is entitled to continued water appropriations from Seagull Lake,[1] pursuant to the Alaska Water Use Act, AS 46.15.010, et. seq. For the reasons set forth below, we agree with the conclusion reached by the trial court and affirm its decision.

I. FACTUAL AND PROCEDURAL BACKGROUND

Pursuant to the Alaska Native Claims Settlement Act, 43 U.S.C. § 1607(a), [ANCSA] the native inhabitants of Naknek formed the village corporation of Paug-Vik. Under the terms of ANCSA, patents of land surrounding the village have been conveyed to the corporation. Part of Paug-Vik’s “core township,” as defined in 43 U.S.C. § 1610(a)(1)(A), includes lands surrounding and underlying a number of shallow, freshwater lakes. One of those lakes, Seagull Lake, is between 2.3 and 4.5 feet in depth and is located approximately one mile east of the village of Naknek. It is the focal point of this litigation.

Located approximately 3000 feet to the south of Seagull Lake is a cannery owned by appellee, Wards Cove Packing Co., Inc. The cannery draws 400,000 gallons of water per day from the lake, through a 10-inch pipeline constructed in 1930 by the Red Salmon Canning Company, one of Wards Cove’s predecessors in interest. On August 1, 1936, and again on January 17, 1959, the predecessors recorded with the United States Commissioner, Kvichak District at Naknek, Alaska, a Notice of Appropriation of Water Rights, pursuant to 43 U.S.C. § 661.[2] Also in January of 1959, a predecessor filed an application with the Department of the Interior for rights of way for a reservoir, a pipeline, a pumping plant, and a transmission line needed in order to take the water. This was granted in May of 1963 and included a 50 foot wide strip around the lake. Wards Cove filed a Declaration of Appropriation with the Alaska Division of Lands, Department of Natural Resources, on August 24, 1967, declaring the appropriation of water for “cannery operation, domestic use and fire protection.”[3] There have been no competing declarations seeking to use the waters of Seagull Lake.

On July 1, 1976, Paug-Vik protested to the Commissioner of Natural Resources that Wards Cove was not entitled to its requested appropriation. Paug-Vik asserted that prior to ANCSA’s passage in 1971 Seagull Lake was used or occupied by the Natives of Naknek, thus conferring “aboriginal title” on them and rendering the lake unavailable for appropriation by non-natives. Their protest was denied and Wards Cove received a Certification of Appropriation of Water, on March 18, 1977. Paug-Vik appealed the Commissioner’s decision to the Superior Court, and Judge Singleton granted Paug-Vik’s request for a trial de novo.[4]

At trial Paug-Vik attempted to prove, as it had before the Commissioner, that the Natives of Naknek had aboriginal title to Seagull Lake at all times prior to the passage of ANCSA.[5] Section 8 of the Organic Act of 1884, according to Paug-Vik, exempted aboriginal title lands from the application of the public land laws extended to Alaska by that act.[6] Among those land laws was 43 U.S.C. § 661, under which Wards Cove claims to have acquired its water rights through its appropriation accomplished in 1930. Paug-Vik’s position throughout these proceedings has been that Wards Cove could not have acquired any valid rights to the water of Seagull Lake because, as aboriginal title land, the lake was exempt from the operation of § 661.

As a consequence, Paug-Vik’s argument continues, Wards Cove has never possessed “valid existing rights” to the water, within the meaning of § 1613(g) of ANCSA.[7] Paug-Vik should thus take fee title to the lake as part of the ANCSA allotment, free of Wards Cove’s invalid right of appropriation.

The court below decided that it was unnecessary to reach the complex issues of whether aboriginal title ever existed in Alaska, what criteria must be met in order to acquire aboriginal title, whether the Natives of Naknek in fact met those criteria and whether any title they might have acquired was abandoned by entry into the cash economy. The trial court, in a thorough and well reasoned opinion, ruled inter alia that, (1) the waters of Seagull Lake were available for appropriation by Wards Cove and its predecessors pursuant to 43 U.S.C. § 661[8] prior to ANCSA, notwithstanding claims of aboriginal title, (2) Wards Cove’s appropriations were validated by § 1603(a) of ANCSA,[9] and (3) § 1603(c) of ANCSA extinguished any claims based on aboriginal title or use and occupancy in derogation of Wards Cove’s right-of-way permit and water appropriation.[10]

II. 43 U.S.C. § 1603(a)

Congress has settled the question of whether conveyances of aboriginal title land under the federal public land laws are valid notwithstanding the non-disturbance language which we have emphasized in setting out the Organic Act of 1884.[11] Congress has declared in § 1603(a) of ANCSA that such conveyances are effective. Transfers so accomplished are among the reasons for the settlement effected by the act.[12]

The question remains whether an appropriation of water under the authority of 43 U.S.C. § 661 effected a conveyance “of public land and water areas . . . . or any interest therein, pursuant to federal law” as those terms are used in § 1603(a). The answer to this question depends on the nature of the right acquired by an appropriation of water under 43 U.S.C. § 661.[13]

“For many years prior to the passage of the Act of July 26, 1866, c. 262, § 9, 14 Stat. 251, 253 (30 USCA § 51 and note 43 USCA § 661, par. 1 and note) the right to the use of waters for mining and other beneficial purposes in California and the arid region generally was fixed and regulated by local rules and customs. The first appropriator of water for a beneficial use was uniformly recognized as having the better right to the extent of his actual use. * * * * The rule generally recognized throughout the states and territories of the arid region was that the acquisition of water by prior appropriation for a beneficial use was entitled to protection * * * *. The rule was evidenced not alone by legislation and judicial decision, but by local and customary law and usage as well. Basey v. Gallagher, 20 Wall, 670, 683-84, 87 U.S. 670, 683 84, 22 L. Ed. 452 (1874); Atchison v. Peterson, 20 Wall, 507, 512-13, 87 U.S. 507, 512-13, 22 L. Ed. 414 (1874).

This general policy was approved by the silent acquiescence of the federal government, until it received formal confirmation of Congress by the Act of 1866, supra. Atchison v. Peterson, supra. Section 9 of that act provides that:

‘Whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same; and the right of way for the construction of ditches and canals for the purposes herein specified is acknowledged and confirmed: * * * *’ * * * * And in order to make it clear that the grantees of the United States would take their lands charged with the existing servitude, the Act of July 9, 1870, c. 235, § 17, 16 Stat. 217, 218 (30 USCA § 52 and note, 43 USCA § 661, par. 2 and note) amending the Act of 1866 provided that:

‘* * * * All patents granted or preemption or homesteads allowed, shall be subject to any vested and accrued water rights, or rights to ditches and reservoirs used in connection with such water rights as may have been acquired under or recognized by the ninth section of the act of which this act is amendatory.’

The effect of these acts is not limited to rights acquired before 1866. They reach into the future as well, and approve and confirm the policy of appropriation for a beneficial use, as recognized by local rules and customs, and the legislation and judicial decisions of the arid-land states, as the test and measure of private rights in and to the nonnavigable waters on the public domain.”

Hunter v. United States, 388 F.2d 148, 151-52 (9th Cir. 1967), quoting California Oregon Power Co. v. Beaver Portland Cement Co., 295 U.S. 142, 154-55, 79 L. Ed. 1356, 55 S. Ct. 725 (1935).

The rights passed by § 661 are dependent on local law in effect at the time of the appropriation. The status of water law in the Territory of Alaska has been reviewed and summarized in Trelease, Alaska’s New Water Use Act, 2 Land and Water Law Review 1, 6-10 (1967). Briefly, territorial law was in accord with “the universal law of the Pacific Coast states and territories,” Miocene Ditch Co. v. Jacobson, 2 Alaska 567, 574 (Alaska 1905), under which the first appropriator of water on public land acquired the right to the water to the extent of his actual use. Id.; see also Eglar v. Barker, 4 Alaska 142 (Alaska 1910). The appropriator’s water rights were vested at the time of the act of appropriation. There was not legal requirement to post or record notices of appropriation. VanDyke v. Midnight Sun Mining & Ditch Co., 177 F. 85 (9th Cir. 1910); Kernan v. Andrus, 6 Alaska 54 (Alaska 1918). Further,

to constitute a valid appropriation of water three elements must always exist: first, an intent to apply it to some beneficial use, existing at the time or contemplated in the future; second, a diversion from the natural channel by means of a ditch, canal, or other structure; and, third, an application of it, within a reasonable time, to some useful industry.

Hoogandorn v. Nelson Gulch Mining Co., 4 Alaska 216, 220 (Alaska 1910) quoting Nevada Ditch Co. v. Bennett, 30 Ore. 59, 45 P. 472 (Or. 1896).

The water right acquired by appropriation under § 661 is an interest in real property. Adamson v. Black Rock Power & Irrigation Co., 12 F.2d 437 (9th Cir. 1926). When it is acquired, it becomes private property. Thayer v. California Development Co., 164 Cal. 117, 128 P. 21 (Cal. 1912). In Broder v. Natoma Water & Mining Co., 101 U.S. 274, 275, 25 L. Ed. 790, 791 (1870) the United States Supreme Court referred to § 661 as “an unequivocal grant.” In Bear Lake & River Water Works & Irrigation Co. v. Garland, 164 U.S. 1, 41 L. Ed. 327, 334, 335, 17 S. Ct. 7 (1896), the court spoke of § 661 as a grant of “title to the right-of way or the use of the water” once the works for the appropriation are completed. [Emphasis added] In Hunter v. United States, 388 F.2d at 153, the Ninth Circuit Court of Appeals stated that a water appropriation under § 661 was “the equivalent of a grant of the use of the waters from the federal government . . . .” and held that the grant was good even against the federal government.[14]

In view of the foregoing, we have no difficulty in concluding that water rights acquired by appropriation under § 661 are conveyances of an interest in public land and water areas pursuant to federal law within the meaning of § 1603(a).[15] They therefore must be regarded as extinguishing aboriginal title to the same interest.

This interpretation is consistent with the general purpose of Congress in enacting § 1603, which is that the extinguishment provisions of that section should be construed broadly to eliminate every claim resting on the assertion of aboriginal title. The Conference Committee Report concerning ANCSA stated:

It is the clear and direct intent of the conference committee to extinguish all aboriginal claims and all aboriginal land titles, if any, of the native people of Alaska and the language of settlement is to be broadly construed to eliminate such claims and titles as any basis for any form of direct or indirect challenge to land in Alaska.

H.R. Conf. Rep. No. 92-746, 92d Cong., 1st Sess. 40, reprinted in [1971] U.S. Code Cong. & News 2196, 2253. [Emphasis in original]. See also United States v. Atlantic Richfield Co., 612 F.2d 1132, 1139 (9th Cir. 1980).

In view of our conclusion that § 1603(a) governs this case it is unnecessary to address any of the alternative grounds on which the lower court based its decision.

The judgment in AFFIRMED.

Compton, Justice, not participating.

The appellants, owners of unpatented mining claims located prior to the enactment of the Alaska Native Claims Settlement Act (ANCSA), 43 U.S.C. § 1601, et seq., 85 Stat. 688, et. seq., December 18, 1971, claim for themselves and all others similarly situated the right to a declaratory judgment and injunctive protection of an alleged vested property right in the ability to patent their mining claims. The district court entered summary judgment in favor of appellees. We affirm.

BACKGROUND

Pursuant to the provisions of ANCSA, the United States has conveyed certain federal lands covered by the Act to Alaskan native corporations. Appellants are three miners, two of whom have valid mining claims on land that was conveyed to native corporations, and one who appears to have a mining claim on land not conveyed. The action was originally brought as a class action. Class certification was denied by the district court.

ISSUES

I. Does ANCSA allow the federal government to convey land covered by the Act which is subject to valid mining claims?

II. Assuming the first issue is answered in the affirmative, is the time limitation on the ability to patent placed on valid mining claims under 43 U.S.C. § 1621 (c) constitutional?

III. Did the district court commit error in denying class certification?

I. 

Section 22 (c) of ANCSA, 43 U.S.C. § 1621 (c), covers the precise factual situation which is before us on this issue. That section provides:

“(c) On any lands conveyed to Village and Regional Corporations, any person who prior to August 31, 1971, initiated a valid mining claim or location under the general mining laws and recorded notice of said location with the appropriate State or local office shall be protected in his possessory rights, if all requirements of the general mining laws are complied with, for a period of five years, and may, if all requirements of the general mining laws are complied with, proceed to patent.” (Emphasis added)

Clearly, the manifest intention of Congress was that lands subject to a “valid mining claim” may be “conveyed to Village and Regional Corporations.” It would have been senseless for Congress to include § 22 (c) unless it intended to grant authority to make such conveyances.

Furthermore, in the legislative history leading up to the passage of this particular section, the sponsor stated: “This is a protection for those who have mining claims in Alaska. If they are valid today and if they continue in the development they will have an additional five years to proceed to patent.” 117 Cong.Rec. 46965 (December 14, 1971). (Emphasis added) True enough, as appellants point out, one of the purposes of § 22 (c) was obviously to assist miners. In doing so, the Congress chose to protect those who had filed valid claims before August 31, 1971, by, among other things, giving them an additional five years to proceed to patent. The fact that Congress did not mention a comparable time on applying for a patent in 43 U.S.C. § 1621 (b) only emphasizes the Congressional intent to apply the specific time limit mentioned in § 22 (c) to holders of valid mining claims. Homesteaders and other entrymen are not given the same protection, but this is readily explainable. A miner need never acquire a title in order to work his claim and protect his rights against third persons. Union Oil Co. v. Smith, 249 U.S. 337, 349, 39 S. Ct. 308, 311, 63 L. Ed. 635 (1919). Consequently, in Alaska as in many other states, many miners never bother to seek patents. Since there is really no incentive for miners to seek patents, it was incumbent upon Congress to place some kind of a time limit which would clearly prevent miners from presenting claims in the distant future.

By 43 C.F.R. 2650.3-2(c), the Secretary of Interior has interpreted § 22 (c) as requiring his Department to reject, for lack of jurisdiction, mineral patent applications filed after December 18, 1976 (or after conveyance, if it is later) on lands conveyed to Village or Regional Corporations. As recently as Andrus v. Idaho, 445 U.S. 715, 729, 100 S. Ct. 1450, 1458, 63 L. Ed. 2d 739 (1980), and Udall v. Tallman, 380 U.S. 1, 16-18, 85 S. Ct. 792, 801-02, 13 L. Ed. 2d 616 (1965), the Supreme Court has emphasized that great deference should be given to the interpretation that the Secretary of the Interior places on the statutes which he administers. See also, Doyon, Ltd. v. Bristol Bay Native Corp., 569 F.2d 491, 496 (CA9 1978), cert. denied, 439 U.S. 954, 99 S. Ct. 352, 58 L. Ed. 2d 345.

Therefore, the answer to the first issue is a definite yes.

II.

The appellants next argue that miners have a valid existing right to require the government to hold open indefinitely the option to apply for a patent. The plain wording of § 22 (c) answers this contention. Section 14 (g) of ANCSA, 43 U.S.C. § 1613 (g), on which the appellants rely, recognizes only “valid existing rights.” Appellants have no such right to a patent or to the opportunity to apply for a patent outside of the time restriction mentioned in § 22 (c). Appellants may well have an existing right to prevent third parties from interfering with their possessory interest. However, they have no right to prevent the government from conveying the legal title to the native corporations.

The argument of appellants that a valid location of a mining claim segregates that area of the claim from the public domain and thus prevents the United States from disposing of the legal title is manifestly unsound. For example, see Clipper Mining Co. v. Eli Mining & Land Co., 194 U.S. 220, 227, 24 S. Ct. 632, 634, 48 L. Ed. 944 (1904). The Court there carefully pointed out that it was not adjudicating any rights against the United States. 194 U.S. at 232-33, 24 S. Ct. at 637. Even more on point is Teller v. United States, 113 F. 273, 283-84 (CA8 1901), where the court held that a valid mining location does not limit the rights of the United States as the paramount title holder.

For that matter, it has been held that the interest of a claimant in a mining claim, prior to the payment of any money for the granting of the patent for the land, is nothing more than a right to the exclusive possession of the land based upon conditions subsequent, a failure to fulfill which forfeits the locator’s interest in the claim. Black v. Elkhorn Mining Co., 163 U.S. 445, 450, 16 S. Ct. 1101, 1103, 41 L. Ed. 221 (1896). We find it unnecessary to discuss in detail the many cases, starting with Shepley v. Cowan, 91 U.S. 330, 23 L. Ed. 424 (1875), and many of which are cited in our Assiniboine & SIOUX TRIBES V. NORDWICK, 378 F.2D 426, 428 (Ca9 1967), cert. denied, 389 U.S. 1046, 88 S. Ct. 764, 19 L. Ed. 2d 838 (1968), which hold that the government may withdraw or convey the title to land subject to valid, unpatented claims. All in substance hold that the land remains subject to the disposing power of the Congress until a homestead or preemption entryman satisfies the conditions imposed by law for the issuance of a patent. Although these cases dealt with homestead and preemption claims, cases such as Black v. Elkhorn Mining Co., supra, and Teller v. United States, supra, are to the same effect.

The interpretations of this legislation by two regional corporations organized pursuant to ANCSA (Doyon, Ltd. and Sealaska Corporation) are not properly before us. In any event, their contention that § 22 (c) is a direction to the Secretary of the Interior to adjudicate the validity of all unpatented mining claims on lands conveyed to native corporations is groundless. We have considered their other suggestions and fail to find anything which requires further discussion.

III. 

In light of our conclusions on Points I and II, it is unnecessary for us to comment on appellants’ contentions with reference to the failure of the court to grant class certification.

CONCLUSION

We conclude that the judgment of the district court must be affirmed.

IT IS SO ORDERED.

Appellants appeal from a partial summary judgment invalidating a permit for the construction and operation of a log transfer facility on Admiralty Island and enjoining its use. Jurisdiction to hear this appeal is provided by 28 U.S.C. § 1292(a)(1). The district court held that the environmental impact statement (EIS) prepared in connection with the permit was inadequate under the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. §§ 4321-4370, because it failed to consider an alternative whereby the land on Admiralty Island could be exchanged for land elsewhere. Appellees cross-appeal from the district court’s dismissal of their claims that proposed timber harvesting on Admiralty Island violates the Alaska Native Claims Settlement Act (ANCSA), 43 U.S.C. §§ 1601-1629a, and the Alaska National Interest Lands Conservation Act (ANILCA), Pub. L. No. 96-487, 94 Stat. 2371 (1980) (codified as amended in scattered sections of 16 and 43 U.S.C.). Jurisdiction to hear this appeal is provided by 28 U.S.C. § 1291. 

We reverse the district court’s judgment invalidating the permit and enjoining use of the log transfer facility. We affirm in all other respects.

I.

FACTS AND PROCEEDINGS BELOW

Appellants, defendants below, are Shee Atika, Inc. (Shee Atika), an Alaska Native Village Corporation that claims a surface estate in some 23,000 acres of Admiralty Island; Sealaska Corporation (Sealaska), an Alaska Native Regional Corporation that owns subsurface rights in land owned by Shee Atika; federal officials in the Department of the Army who issue permits under section 404 of the Clean Water Act, 33 U.S.C. § 1344, and section 10 of the River and Harbor Act of 1899, 33 U.S.C. § 403; and other federal officials who administer laws relating to Native Americans. We refer to appellants collectively as Shee Atika-Sealaska.

Appellee cross-appellants, plaintiffs below, are the City of Angoon (Angoon), the only permanent settlement on Admiralty Island; the Sierra Club, and the Wilderness Society, both national conservation organizations. We refer to appellees collectively as Sierra-Angoon.

This litigation is the latest episode in a twelve-year struggle which reflects badly upon the ability of the three branches of the federal government to resolve disputes reasonably expeditiously. It is a struggle in which Shee Atika attempts to realize economic benefits from the settlement of its aboriginal claims under ANCSA. ANCSA authorized the Secretary of the Interior (Secretary) to convey to Shee Atika a surface estate in some 23,000 acres of land. 43 U.S.C. § 1613(h)(3). In exchange, the Native shareholders of Shee Atika relinquished all their aboriginal claims.

In 1975, Shee Atika designated lands in the southwest portion of Admiralty Island for the exchange. The Sierra Club and Angoon immediately contested the conveyance. The Sierra Club wishes to protect the wilderness character of Admiralty Island. The President and Congress recognized the island’s ecological importance by designating 920,000 of its 1.2 million acres as a national monument. Presidential Proclamation No. 4611, 3 C.F.R. 69 (1978); ANILCA, § 503(b), 94 Stat. 2371, 2399 (1980). Angoon is afraid that timber harvesting will disrupt the traditional subsistence culture of its 500 Tlinget Indian inhabitants.

Responding to pressure, Shee Atika agreed to exchange its land in the southwest of Admiralty Island for land in the northwest of the island. Its new selection is farther from Angoon and was rated environmentally less sensitive by the United States Forest Service. Excerpt of Record (E.R.) at 145. Congress approved the exchange in section 506(c) of ANILCA, 94 Stat. 2371, 2409.

The Sierra Club and Angoon challenged the new conveyance both before the Department of the Interior and in district court. The Sierra Club also filed a notice of lis pendens in the Alaska land records, which prevented Shee Atika from obtaining commercial financing for its timber development plans. Congress responded by enacting section 315 of the Interior Appropriations Act, Pub. L. No. 97-394, 96 Stat. 1998 (1983), which confirmed the conveyance to Shee Atika “in all respects.”[1]

The Sierra Club and Angoon returned to district court to protest Shee Atika’s plans to harvest timber on its land. They objected to the permit issued by the Army Corps of Engineers (Corps) for a log transfer facility on the ground that the Corps had not prepared an EIS as required by NEPA, 42 U.S.C. § 4332. The Corps suspended the permit in March, 1983, pending completion of an EIS. Shee Atika nevertheless harvested timber during the spring of 1983, moving the logs by means less efficient than a log transfer facility. The Sierra Club and Angoon interrupted this activity by obtaining a preliminary injunction against timber harvesting. They claimed, and the district court agreed, that ANILCA prohibits timber harvesting on Shee Atika’s land because it is located within a national monument.

Shee Atika appealed to this court, and we vacated the preliminary injunction. City of Angoon v. Marsh (Angoon I), 749 F.2d 1413 (9th Cir. 1985). From the language and legislative history of ANILCA, we concluded that Congress did not intend to prohibit timber harvesting on private land located within national monuments. We also looked to the purpose of ANCSA, which authorized the conveyance to Shee Atika to settle its claims “in conformity with the real economic and social needs of Natives,” 43 U.S.C. § 1601(b). It was “inconceivable that Congress would have extinguished their aboriginal claims and insured their economic well being by forbidding the only real economic use of the lands so conveyed.” 749 F.2d at 1418.

On remand the district court consolidated four cases involving Shee Atika’s land. Sierra-Angoon filed a consolidated complaint on April 29, 1985. They challenged the original conveyance to Shee Atika of land on Admiralty Island. They objected to the new permit for a log transfer facility which the Corps had issued after completing an EIS. And they protested all timber harvesting on Admiralty Island. Sierra-Angoon based their claims variously on provisions of ANCSA, ANILCA, NEPA, and the Clean Water Act; on the federal trust responsibility owed to Angoon; and on the due process and property clauses of the United States Constitution.

All parties moved for summary judgment. The district court disposed of the motions in two orders dated October 17, 1985; in a third order dated November 27, 1985; and in a partial final judgment dated December 27, 1985. The court granted partial summary judgment for Sierra-Angoon on their claim that the log transfer facility permit was invalid under NEPA because the EIS did not study an alternative by which Shee Atika could exchange its Admiralty Island land for land elsewhere. The court granted partial summary judgment for Shee Atika-Sealaska on all other claims, except a claim arising under section 402 of the Clean Water Act, 33 U.S.C. § 1342, which was still the subject of an administrative appeal.

As already indicated, Shee Atika-Sealaska appeal from so much of the November 27 order as held that the EIS was inadequate. Sierra-Angoon cross-appeal from so much of the judgment of December 27 as dismissed three of their claims. First, they claim that Congress conveyed the Admiralty Island land to Shee Atika intending that Shee Atika exchange it for land elsewhere and not use it for timber harvesting. Second, they claim that Shee Atika’s land is subject to management restrictions under section 22(k) of ANCSA, 43 U.S.C. § 1621(k). Third, they challenge timber harvesting on Admiralty Island because certain federal agencies failed to prepare subsistence evaluations required by section 810 of ANILCA, 16 U.S.C. § 3120, and because the Secretary of the Interior failed to protect access to subsistence resources under section 811 of ANILCA, 16 U.S.C. § 3121. 

II.

STANDARD OF REVIEW

This court reviews de novo a trial court’s grant of summary judgment. Darring v.  Kincheloe, 783 F.2d 874, 876 (9th Cir. 1986). The standard used by the trial court under Fed. R. Civ. P. 56(c) thus governs the appellate court’s review. This court determines, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Id.

III.

NATIONAL ENVIRONMENTAL POLICY ACT

It has been said many times that NEPA is an “essentially procedural” statute. Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 558, 55 L. Ed. 2d 460, 98 S. Ct. 1197 (1978). We enforce NEPA under our authority to “hold unlawful and set aside agency action, findings, and conclusions found to be . . . without observance of procedure required by law,” Administrative Procedure Act, 5 U.S.C. § 706(2)(D). Lathan v. Brinegar, 506 F.2d 677, 692-93 (9th Cir. 1974) (en banc).

One of the procedures prescribed by NEPA is that:

all agencies of the Federal Government shall — . . .

(C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on —

(i) the environmental impact of the proposed action,
(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,
(iii) alternatives to the proposed action,
(iv) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and
(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

42 U.S.C. § 4332(2).

This “detailed statement” is the environmental impact statement (EIS). The present case specifically tests the requirement that an EIS discuss “alternatives to the proposed action.” In applying this requirement, we employ a “rule of reason” in judging whether the agency described “those alternatives necessary to permit a ‘reasoned choice.'” State of California v. Block, 690 F.2d 753, 767 (9th Cir. 1982) (citations omitted). “The touchstone for our inquiry is whether an EIS’s selection and discussion of alternatives fosters informed decision-making and informed public participation.” Id. In particular, an EIS need not consider “remote and speculative” alternatives whose effects cannot be readily ascertained. Vermont Yankee, 435 U.S. at 551 (quoting Natural Resources Defense Council, Inc. v. Morton, 148 U.S. App. D.C. 5, 458 F.2d 827, 837-38 (D.C. Cir. 1972)); See Life of the Land v. Brinegar, 485 F.2d 460, 472 (9th Cir. 1973), cert. denied, 416 U.S. 961, 94 S. Ct. 1979, 40 L. Ed. 2d 312 (1974).

Before reissuing the permit for the log transfer facility, the Corps spent nineteen months preparing an EIS that is over 120 pages long, exclusive of maps, diagrams, and appendices. E.R. at 139. The EIS is technically sophisticated and analytically rigorous. It describes seven alternatives. One, the “no-action” alternative, considers the effects of denying the permit. The other six alternatives involve different ways of transferring logs either to the water for transport or directly on to vessels. The Corps finally approved an alternative that differs slightly from Shee Atika’s original proposal. In addition, the Corps imposed twelve special conditions on the permit in order to mitigate adverse environmental effects. E.R. at 340-42.

The heart of the Sierra-Angoon argument is that the EIS is inadequate because it does not consider in detail the alternative that Shee Atika could exchange its Admiralty Island holdings for land elsewhere. In fact, the Corps adverted to this possibility, but decided not to develop it at length. First, the Corps observed that an exchange would not satisfy the purpose for which Shee Atika sought the permit: “safe, cost effective means of transferring timber harvested on their land to market.” E.R. at 163. Second, the Corps reasoned that the exchange alternative was remote and speculative because it was contingent on congressional action and had not been reduced to a specific proposal. Id. at 153, 170. Third, the Corps noted that, as far as it was concerned, the exchange alternative was equivalent to the no-action alternative because it could do no more to promote a trade. Id. And the Corps doubted whether it could properly withhold a permit in order to force Shee Atika to consent to an exchange that it otherwise would have refused. Id.

The district court considered and rejected each of the Corps’ reasons for its abbreviated discussion of the exchange alternative. The district court attacked the Corps’ statement of the permit’s purpose. Purporting to rely on the Corps’ regulations, the district court restated the purpose in terms of a broad, generic public benefit: “commercial timber harvesting.” E.R. at 55. But the Corps’ regulations recognize that “every application has both an applicant’s purpose and need and a public purpose and need.” 33 C.F.R. Part 230, App. B (11)(b)(4) (1985). The regulations, however, specify that “the EIS shall document a reasonable number and range of alternatives which would satisfy the purpose and need (as described in paragraph 11(b)(4) above) for which the applicant has submitted his proposal.” Id. at (11)(b)(5)(b). The Corps characterized the relevant “purpose and need” as providing a “safe, cost effective means of transferring timber harvested on [Shee Atika’s] land to market,” E.R. at 163, a purpose broader than constructing a specific log transfer facility at a designated location in Cube Cove, as Shee Atika requested. The district court erred when it adopted as the “purpose and need” the even broader concept “commercial timber harvesting.” This formulation appears to make a broad social interest the exclusive “purpose and need.” The Corps’ statement is more balanced. We have said before, “The preparation of [an EIS] necessarily calls for judgment, and that judgment is the agency’s.” Lathan v. Brinegar, 506 F.2d at 693.

Acceptance of the Corps’ statement of purpose makes consideration of the exchange alternative irrelevant. See Trout Unlimited v. Morton, 509 F.2d 1276, 1286 (9th Cir. 1974). When the purpose is to accomplish one thing, it makes no sense to consider the alternative ways by which another thing might be achieved.

However the permit’s purpose is characterized, the exchange alternative is too remote and speculative. Congress explicitly conveyed the Admiralty Island land to Shee Atika, and Congress would have to authorize any substitute conveyance made in exchange. Shee Atika would have to consent. Should the tract to be exchanged be quite valuable, Congress might refuse to offer it; if it is less valuable, Shee Atika might refuse to accept it. To require the Corps to select one or more tracts for exchange which, in its view, might induce both an offer and acceptance is to visit upon it a task that would involve almost endless speculation.

It is true that the fact that an alternative requires legislative action does not automatically justify excluding it from an EIS.[2] The alternatives, however, must be ascertainable and reasonably within reach. Neither condition clearly was met when the EIS was prepared. Sierra-Angoon had not offered a specific, detailed counterproposal that had a chance of success. Those who challenge an EIS bear a responsibility “to structure their participation so that it is meaningful, so that it alerts the agency to the intervenors’ position and contentions.” Vermont Yankee, 435 U.S. at 553. Sierra-Angoon did not meet this responsibility. See Friends of the Earth v. Coleman, 513 F.2d 295, 298 (9th Cir. 1975) (upholds district court decision that EIS did not have to consider alternative sites as sources of fill, where plaintiffs failed to allege specific evidentiary facts showing that the alternative sites were reasonable and viable); Seacoast Anti-Pollution League v. Nuclear Regulatory Comm’n, 598 F.2d 1221, 1231 (1st Cir. 1979) (where petitioners fail to present supporting material, agency need not consider alternative sites for nuclear power plant). It follows, of course, that Sierra-Angoon has not demonstrated that timber harvesting at an alternative location would be environmentally less harmful than timber harvesting on Admiralty Island.[3] Nor can the Corps make this determination until an exchange becomes ascertainable. Until then, the consequences of an exchange are remote and speculative. 

Our position draws support from the fact that since 1979, the federal government has been negotiating with Shee Atika without success for an exchange of the Admiralty Island land. We should not hold a log transfer facility as a hostage to facilitate the resolution of this intractable controversy. Shee Atika’s need to benefit economically from ANCSA is urgent. 43 U.S.C. § 1601(b). To defer meeting this need while the Corps considers alternatives that none unilaterally can bring to pass would more resemble coercion than justice. The Corps properly eschewed development of a detailed exchange alternative.

Therefore we conclude that the EIS in issue here was adequate because it discussed all the alternatives that were reasonably necessary to enable the Corps to make an informed decision to grant the log transfer facility permit. We reverse the district court’s judgment insofar as it invalidates the permit and enjoins use of the log transfer facility. Because the adequacy of an EIS is a legal question and no issue of material fact remains, we direct summary judgment for Shee Atika-Sealaska on the issue of the validity of the log transfer facility permit.

IV.

CONVEYANCE-FOR-EXCHANGE

Cube Cove was conveyed to Shee Atika and Sealaska by section 506 of ANILCA, 94 Stat. at 2409-12, which provides in relevant part:

(c)(1) In satisfaction of the rights of the Natives of Sitka, as provided in section 14(h)(3) of the Alaska Native Claims Settlement Act, the Secretary of the Interior, upon passage of this Act, shall convey subject to valid existing rights and any easements designated by the Secretary of Agriculture, the surface estate in the following described lands on Admiralty Island to Shee Atika, Incorporated:
[description of the Cube Cove land].

Concurrently with this conveyance, the Secretary shall convey the subsurface estate in the above described land to Sealaska, Incorporated. As a condition to such conveyances, Shee Atika, Incorporated, shall release any claim to land selections on Admiralty Island other than those lands described in this subsection (and Sealaska shall release any corresponding subsurface rights).

. . .

(d) In recognition of the considerable land selection costs incurred by Shee Atika, Incorporated (and two other Native Corporations), in determining the validity of land withdrawals on Admiralty Island under section 14(h)(3) of the Alaska Native Claims Settlement Act, and in identifying suitable lands for exchange outside Admiralty Island, the Secretary of the Interior shall reimburse those corporations for such reasonable and necessary land selection costs, including all costs for negotiating land exchanges, court costs, and reasonable attorney’s and consultant’s fees, incurred prior to the date of conveyance of such land to such Native Corporations.

Sierra-Angoon assert that the Cube Cove land was conveyed to Shee Atika solely as a bargaining tool for a future exchange with the Department of Interior for other land, and not for the purpose of timber harvesting at Cube Cove itself.

Sierra-Angoon’s only support for this assertion are some ambiguous, off-hand remarks of Senators in the uncorrected transcript of a Senate Committee mark-up session on ANILCA. Mark-up Session on S.9, Alaska Lands, Transcript of Proceedings, Senate Committee on Energy & Natural Resources, 96th Cong., 1st Sess. 531, 533, 534, 541 (1979). Shee Atika-Sealaska dispute the accuracy of the mark-up comments and offer lengthy and persuasive legislative history indicating that the conveyance was not for exchange purposes only. They particularly point out ANILCA § 1302(b), 16 U.S.C. § 3192(b), which provides that “lands located within the boundaries of a conservation system unit which are owned by . . . a Native Corporation or Native Group which has Natives as a majority of its stockholders . . . may not be acquired by the Secretary without the consent of the owner.”

Sierra-Angoon’s lack of support is telling, because the conveyance-for-exchange is Sierra-Angoon’s major argument in the appeal, and many of the other arguments rely on this one. Most of the restrictions on the use of the Cube Cove land that Sierra-Angoon now urge would defeat any other purpose the conveyance might serve. Only if the conveyance was purely for the purpose of a future exchange are these restrictions compatible with it. We refuse to attribute to Congress the purpose to place such restrictions on land-use absent a clear expression of intent. In light of the history and context of section 506(c), we find the conveyance to Shee Atika was not for purpose of exchange only.

Sierra-Angoon argue at length that section 503(d) of ANILCA, 94 Stat. at 2400, should be applied to prevent timber harvesting on the Cube Cove lands. Section 503(d) provides:

Within the Monuments, the Secretary shall not permit the sale of [sic] harvesting of timber: Provided, That nothing in this subsection shall prevent the Secretary from taking measures as may be necessary in the control of fire, insects, and disease.

Except for the Cube Cove inholding, Admiralty Island consists entirely of public lands. Sierra-Angoon argue that logging is already prohibited on the public lands on Admiralty Island by virtue of sections 503(b), (c), and (f)(1), relying on “common sense” readings of the sections (i.e., the establishment of a Monument, the provision for its protection, and the withdrawal of the land from disposition imply that the land will not be logged). Subsection (d) must therefore apply to the Cube Cove inholding, Sierra-Angoon argue, or the subsection is superfluous. As Shee Atika-Sealaska point out, however, none of the other sections cited prohibits timber harvesting, either expressly or by reference to another statute. Cf. 16 U.S.C. § 472a(a) (timber harvesting not per se prohibited in National Monuments).

Sierra-Angoon also argue that their interpretation of section 503(d) is compelled by the “underlying protective purposes” of ANILCA. See Southeast Alaska Conservation Council, Inc. v. Watson, 697 F.2d 1305, 1309 (9th Cir. 1983). They cite a number of restrictions on the uses of the public lands on Admiralty Island and argue that allowing Shee Atika unrestricted use of the remainder of the island is anomalous. They also cite a number of restrictions on private land use involving other national preserves and monuments.

All of these are arguments the court considered in Angoon I, 749 F.2d at 1415-18.[4] The court considered the legislative history and the purpose of ANILCA and held that reading section 503(d) to prohibit logging on the Cube Cove inholding would forbid the land’s only real economic use and defeat the purpose of section 506(c)’s conveyance of the land. The court therefore concluded that section 503(d)’s prohibition against the harvest of timber “within the Monument” applied only to public lands within the Monument and not to Shee Atika’s private land. Id. at 1418.

Sierra-Angoon appear to raise one new argument that was not addressed by the Angoon I panel. They argue that timber harvesting is not the only economically feasible use of the Cube Cove land. Sierra-Angoon claim that the Cube Cove land has value that can be realized by exchanging the Cube Cove land for other land that would presumably have more direct utility. Sierra-Angoon note that the government may trade lands of equal or even greater value for the Shee Atika land, See ANILCA § 1302(h), 94 Stat. at 2475; ANCSA § 22(f), 43 U.S.C. § 1621(f), and that many Native Corporations have made such exchanges at premiums as high as thirty percent.

This argument is in essence identical to Sierra-Angoon’s argument that Congress conveyed the Cube Cove inholding to Shee Atika solely for the purpose of a future exchange. If Congress intended the conveyance to confer an economic benefit on Shee Atika and at the same time in section 503(d) prohibited Shee Atika from logging, then Congress must have conveyed the Cube Cove inholding solely for the purpose of exchange. As discussed above with regard to section 506(c) itself, the provision for voluntary exchange makes this conclusion unreasonable.

Sierra-Angoon next argue that, even without section 503(d), section 503(c) of ANILCA, 94 Stat. at 2399-400, imposes a duty on the government to mitigate the effects of any timber harvesting on Admiralty Island. Section 503(c) provides:

Subject to valid existing rights and except as provided in this section, the National Forest Monuments (hereinafter in this section referred to as the “Monuments”) shall be managed by the Secretary of Agriculture as units of the National Forest System to protect objects of ecological, cultural, geological, historical, prehistorical, and scientific interest.

Sierra-Angoon cite a number of other specific statutes that impose such duties on the government and court cases that uphold the government’s power to perform them. Sierra-Angoon then cite the “irreparable damage to the Monument” that would result from timber harvesting at Cube Cove and conclude that the Secretary is required to mitigate this harm. The court concluded in Angoon I that such a reading of section 503(c) would inhibit the only economic benefit of the section 506(c) transfer. This conclusion is still sound and we follow it here.[5]

V.

DURATION OF HARVESTING RESTRICTIONS

Sierra-Angoon also argue that timber harvest on the Cube Cove inholding is subject to section 22(k) of ANCSA, 43 U.S.C. § 1621(k), which provides: 

Any patents to lands under this chapter which are located within the boundaries of a national forest shall contain such conditions as the Secretary deems necessary to assure that:

(1) the sale of any timber from such lands shall, for a period of five years, be subject to the same restrictions relating to the export of timber from the United States as are applicable to national forest lands in Alaska under rules and regulations of the Secretary of Agriculture; and

(2) such lands are managed under the principle of sustained yield and under management practices for protection and enhancement of environmental quality no less stringent than such management practices on adjacent national forest lands for a period of twelve years.

The federal regulations implementing section 22(k) interpret these time limits as running from the date of enactment (Dec. 18, 1971), and thus both time limits have now expired. See 43 C.F.R. § 2650.4-5 (1985). Sierra-Angoon argue that the regulation misinterprets the statute. Because the patent must contain the conditions, they argue, the plain language of the statute requires that the conditions run from the date of conveyance, not the date of enactment.

We will affirm the Secretary’s interpretation of section 22(k) if it is within the range of reasonable meanings of the statute’s language and it comports with the statute’s purposes. See Sudomir v. McMahon, 767 F.2d 1456, 1459 (9th Cir. 1985). Section 22(k) is itself silent about the date from which the time periods are to run, and the remainder of the statute makes Congress’ intent no clearer.

Sierra-Angoon cite a number of other provisions of ANCSA that specify time periods that expressly begin on the date of enactment, e.g., sections 2(c), 7(b), 12(c)(3), and 17(d)(2)(B) (43 U.S.C. §§ 1601(c), 1606(b), 1611(c)(3), and 1616(d)(2)(B)). They ask the court to infer that, by failing to tie the section 22(k) time periods to the date of enactment, Congress intended that the periods run from the only other plausible date, the date of conveyance. This inference is a weak one at best. Other provisions of ANCSA contain similar ambiguous time limitations. The phrase “for a period of five years” appears in a similar context in section 22(c), 43 U.S.C. § 1621(c), and we have construed that time limitation to run from the date of enactment. Alaska Miners v. Andrus, 662 F.2d 577 (9th Cir. 1981). Further, Sierra-Angoon expect a degree of consistency that cannot be presumed in the context of complex legislation such as ANCSA. The substance of section 22(k) appeared for the first time as section 23(v) of S.35 less than two months before final passage of ANCSA, and achieved its present form during a hurried Senate floor debate on the day the Senate passed its version of the bill. 117 Cong. Rec. 38,465-66 (1971). The ambiguity appears to result more from accident than design.

The legislative history is inconclusive. Sierra-Angoon rely on the rejection on the Senate floor of an amendment to the statute that would have explicitly started the time period from the date of enactment. They cite the following exchange:

Mr. GRAVEL. . . . I wonder if we could dot the “i,” and provide the 5 years would run from enactment of this legislation. Would my colleague agree on that point?
Mr. STEVENS. This would make it 5 years. That could be discussed in conference.

117 Cong. Rec. 38,466 (1971) (remarks of Senators Gravel and Stevens). The failure to “dot the ‘i'” might at worst reflect a disagreement about the application of section 22(k) that Congress chose to leave to the Secretary to resolve, not a “rejection” of an amendment. Cf. Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 865, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984) (Congress can leave to appropriate agency resolution of competing statutory policies). Indeed, subsequent legislative history suggests congressional acquiescence to 43 C.F.R. § 2650.4-5. In considering ANILCA, Congress acknowledged the Secretary’s interpretation of section 22(k), but did not see fit to overturn it. The Senate report on ANILCA states that ANCSA “restricts the management of lands conveyed from the national forests to native corporations for 12 years. This 12-year period runs from the date of [ANCSA] through December, 1983.” S. Rep. No. 413, 96th Cong., 1st Sess. 261-62 (1979), reprinted in 1980 U.S. Code Cong. & Ad. News 5070, 5205-06. 

The Secretary has the principal responsibility for administering ANCSA and his interpretation is entitled to deference. Doyon Ltd. v. Bristol Bay Native Corp., 569 F.2d 491, 496 (9th Cir.), cert. denied, 439 U.S. 954, 99 S. Ct. 352, 58 L. Ed. 2d 345 (1978). Sierra-Angoon urge us not to defer to the Secretary’s interpretation because, they argue, the agency has not held a consistent view of the statute. See, e.g., Skidmore v. Swift & Co., 323 U.S. 134, 140, 89 L. Ed. 124, 65 S. Ct. 161 (1944). They note that two proposed versions of 43 C.F.R. § 2650.4-5 measured the section 22(k) time periods from the date of conveyance, see 38 Fed. Reg. 6505-06 (1973); 37 Fed. Reg. 19,636 (1972), while the final regulation adopted time periods from the date of enactment without explaining the change. But the inconsistency the courts have frowned upon is in official interpretations. To hold a final interpretation must be consistent with draft regulations would deprive the rulemaking process of flexibility, transforming proposed regulations into official actions that agencies would be hesitant to reconsider. See International Harvester Co. v. Ruckelshaus, 155 U.S. App. D.C. 411, 478 F.2d 615, 632 (D.C. Cir. 1973).

The Secretary’s interpretation is entitled to great deference as a “longstanding contemporaneous administrative construction,” upon which interested persons are likely to have relied. Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 120, 64 L. Ed. 2d 766, 100 S. Ct. 2051 (1980). Native corporations that built facilities to service the “round log” export market using timber from lands conveyed to them under ANCSA may have relied upon 43 C.F.R. § 2650.4-5 for assurances that their exports would be free of restriction. If we were to read the section 22(k)(1) export restrictions as still operative today, their investments could be impaired. 

Sierra-Angoon urge us not to defer to the agency because the interpretation issue requires no agency expertise. We disagree. The Secretary’s interpretation of section 22(k) involved a reconciliation of competing policies that entailed “more than ordinary knowledge” of the regulated matters. Chevron U.S.A., 467 U.S. at 844 (quoting United States v. Shimer, 367 U.S. 374, 382, 6 L. Ed. 2d 908, 81 S. Ct. 1554 (1961)). Congress intended ANCSA and section 22(k) to accomplish several competing goals, including: (1) to create viable, profitable Native Corporations, See Ukpeagvik Inupiat Corp. v. Arctic Slope Regional Corp., 517 F. Supp. 1255, 1262 (D. Alaska 1981); (2) to prevent “haphazard and disjointed management” of forest lands until the Native Corporations could develop their own management plans to govern the tracts they selected, S. Rep. No. 405, 92d Cong., 1st Sess. 164 (1971); (3) to prevent the Native Corporations from immediately selling off their resources to raise capital the government would be providing them over the ensuing ten years anyway, see 117 Cong. Rec. 46,965 (1971) (remarks of Sen. Stevens); and (4) to cushion the blow to local sawmills that relied on export restrictions applicable to timber taken from Forest Service lands.

The Secretary’s interpretation furthered the creation of profitable Native Corporations by lifting export restrictions at an early date. It also limited “haphazard and disjointed management” by setting a date certain for the expiration of the time limits. Starting the time running from the date of conveyance would result in a confusing, staggered set of limits, especially for Native Corporations (such as Sealaska) that have received different parcels at different times. It limited Native exploitation of the lands for five years, the time period intended to be required for federal distribution of the majority of the money settlements; see ANCSA § 6(a), 43 U.S.C. § 1605(a). And it gave the local timber industry breathing space during a limited transitional period to prepare for the relaxation of import restrictions. The Secretary’s interpretation should not be disturbed unless it is unreasonable. See Chevron U.S.A., 467 U.S. at 844. We find it to be consistent with both the statute’s policies and its literal language.

VI.

SUBSISTENCE RIGHTS

Sierra-Angoon assert that section 810 of ANILCA, 16 U.S.C. § 3120, requires “subsistence evaluations” of various government actions: the Secretary’s conveyance of Cube Cove to Shee Atika under section 506(c) of ANILCA; the issuance of permits by the EPA and Corps for the log transfer facility under sections 402 and 404 of the Clean Water Act, 33 U.S.C. §§ 1342 and 1344; the Bureau of Indian Affairs’ loan to Shee Atika; and the Forest Service’s “duty” pursuant to ANILCA § 503(c) and ANCSA § 22(k) to protect the monument lands. Section 810(a) provides in relevant part: 

In determining whether to withdraw, reserve, lease, or otherwise permit the use, occupancy, or disposition of public lands under any provision of law authorizing such actions, the head of the Federal agency having primary jurisdiction over such lands or his designee shall evaluate the effect of such use, occupancy, or disposition on subsistence uses and needs, the availability of other lands for the purposes sought to be achieved, and other alternatives which would reduce or eliminate the use, occupancy, or disposition of public lands needed for subsistence purposes.

As the language indicates, this provision affects agency determination of “whether to lease or otherwise permit the disposition of public lands.” Village of Gambell v. Clark, 746 F.2d 572, 579 (9th Cir. 1984). The district court concluded that the government had taken no action affecting “public lands” and that section 810(a) was therefore inapplicable.

Sierra-Angoon argue that the spillover effect of the private use of Cube Cove on the subsistence use of the public lands on the rest of Admiralty Island brings the government’s actions within section 810(a). The government’s actions, they argue, make the logging operation both possible (the conveyance) and economically feasible (the log transfer facility permit, the loan), and the logging operation in turn affects the public lands of the monument. Sierra-Angoon urge the court to read section 810 broadly, See Gambell, 746 F.2d at 581, and to focus on the actual effects on public lands of the government actions authorizing use of private lands. Cf. Adler v. Lewis, 675 F.2d 1085, 1091-92 (9th Cir. 1982) (under 49 U.S.C. § 1653(f), highway construction activities that significantly adversely affect public park lands “use” the park lands).[6]

Even if we were to read “public lands” this broadly, however, subsistence evaluations would not be required here for several reasons. First, none of the agencies Sierra-Angoon cite has “primary jurisdiction” over the public lands used for subsistence, as required by section 810. Second, the agency that does have such jurisdiction, the Department of Agriculture, has taken no action regarding the Cube Cove land that would invoke section 810. Cf. Alaska v. Andrus, 591 F.2d 537, 540 (9th Cir. 1979) (inaction insufficient to require an EIS under NEPA). In addition, other provisions of ANILCA tend to belie the applicability of section 810 to private lands. E.g., ANILCA § 802(3), 16 U.S.C. § 3112(3) (“Federal land managing agencies . . . shall cooperate with adjacent landowners and land managers, including Native Corporations . . . .”); id. § 810(d), 16 U.S.C. § 3120(d) (“After compliance . . ., the head of the appropriate Federal agency may manage or dispose of public lands under his primary jurisdiction . . . .”).

It seems likely that, as Sierra-Angoon argue, a subsistence evaluation of the government’s Cube Cove actions would be beneficial and consistent with the purpose of ANILCA. The plain language of the statute, however, cannot fairly be read to require such an evaluation for actions regarding private lands. Sierra-Angoon argue strenuously that they are not advocating regulating private lands but only spillover “use” of public lands. This seems a distinction without a difference. We affirm the district court’s holding that section 810 is inapplicable to Shee Atika’s use of Cube Cove.

Sierra-Angoon also claim that Shee Atika’s activities will violate the Angoon residents’ rights to continued subsistence uses of Admiralty Island under section 506(a)(2) of ANILCA, 94 Stat. at 2407. Section 506(a)(2) provides:

Nothing in this section shall affect the continuation of the opportunity for subsistence uses by residents of Admiralty Island, consistent with title VIII [ANILCA §§ 801-816, 16 U.S.C. §§ 3111-3126] of this Act.

The district court found that section 506(a)(2) did not apply to the conveyance to Shee Atika under section 506(c). We agree. As used in the statute, “this section” refers only to section 506(a), which granted other Admiralty Island lands to a different Native Corporation, Kootznoowoo, Incorporated, and not to the whole of section 506, which includes the grant to Shee Atika. Each of subsections (a), (b), and (c) of section 506 involves a separate Native Corporation and is independent of the others. Subsection 506(a)(2) is placed between two other provisions, subsections 506(a)(1) and 506(a)(3), that exclusively concern the Kootznoowoo grant. We conclude that Congress intended subsection 506(a)(2) to apply only to the Kootznoowoo grant.

Sierra-Angoon argue that “this section” is the whole of section 506 and that the restrictions of 506(a)(2) are compatible with the conveyance to Shee Atika because the land was conveyed for the purpose of exchange (discussed supra, section IV). They also argue that section 506(a)(2) would be superfluous if it did not apply to the Shee Atika inholding because Angoon’s subsistence use of public lands is already protected by sections 503(b), (c), and (f)(1), and title VIII. Under our view that “this section” is only section 506(a), however, the provision has meaning and yet does not affect the Shee Atika conveyance.

In a similar vein, Sierra-Angoon argue that the protections of section 506(a)(2) must be broader than those of title VIII or the former is superfluous. However, Congress probably included the phrase “consistent with title VIII” to ensure section 506(a) did not undermine title VIII, not to provide broader protections.

Sierra-Angoon also assert that the Secretary breached his duty under ANILCA § 811, 16 U.S.C. § 3121, to guarantee residents of Angoon access to their subsistence lands. Section 811(a) provides: 

The Secretary shall ensure that rural residents engaged in subsistence uses shall have reasonable access to subsistence resources on the public lands.

Sierra-Angoon assert that the Angoon residents’ traditional use of Cube Cove as a point of access to the other public lands in the Monument requires the Secretary to restrict Shee Atika’s logging, road building, and other projects in Cube Cove to accommodate that use. Although Shee Atika’s activities may have some of the effects Sierra-Angoon assert, the language of section 811(a) must be stretched a long way to allow — much less require — the Secretary to restrict the use of private land to assure access to subsistence resources on public lands. We affirm the district court’s grant of summary judgment on this issue.

VII.

CONCLUSION

In light of ANILCA’s grant of Cube Cove to Shee Atika, the 1982 legislation confirming it, and the 1986 legislation recognizing it, we hold Congress intended Shee Atika to have the opportunity to harvest timber on the Cube Cove land and not merely to be able to exchange it for another parcel. We reverse the district court’s judgment invalidating the permit for the construction and operation of the log transfer facility and enjoining use of the facility. We affirm in all other respects.

REVERSED IN PART AND AFFIRMED IN PART.

The native Alaskan village corporation Aleknagik and its city and village council brought suit in the district court against the Secretary of the Interior and various individual defendants. The village councils of Port Graham and English Bay intervened as defendants. The district court granted summary judgment for the defendants, and we consider the appeal by the nonprevailing parties. We affirm.

The case turns on the interpretation of statutes relating to the creation and operation of federal townsite laws in Alaska. In 1891 and 1926, Congress extended the operation of federal townsite laws to Alaska. 43 U.S.C. § 732 (repealed 1976); Alaska Native Townsite Act of 1926, 43 U.S.C. §§ 733-36 (repealed 1976) (ANTA). To bring about formation of a townsite, its occupants were required by ANTA to apply to the Bureau of Land Management for a survey of the proposed exterior boundaries. After the survey, and upon a petition by a majority of the occupants to the Secretary, the townsite’s interior was surveyed to be divided into lots and blocks. The petition also would include a request for the appointment of a townsite trustee. This process had the effect of segregating the land from further disposal under public land laws.

After segregation, the occupied areas of the townsite were subdivided by the United States into blocks, lots, streets, alleys, and municipal public reservations. Lots owned by non-natives paid an assessment for the survey. 43 C.F.R. §§ 2565.3(a), (b) (1970). Other areas of the townsite remained unsubdivided until occupied. Following subdivision, the Secretary issued patents for the land, allowing the trustee to issue deeds to occupants after payment of any purchase price or assessments. The date of the subdivision survey was the last day for new claims within the subdivision. 43 C.F.R. § 2565.3(c) (1970). Once the subdivision survey was complete, all unclaimed lots could be sold by the trustee at a public sale. 43 C.F.R. § 2565.5 (1970). Proceeds of sales went to the municipality. All unsold lots were deeded to the municipality, a provision which is of central importance in this case. 43 C.F.R. § 2565.7 (1970). After all lands within the townsite trust were progressively subdivided and distributed, the townsite trust terminated. Thus, the distribution process had two major steps. The first step was the segregation, which set aside the townsite. The second step was subdivision, which led to distribution and conveyances of the land.

In 1971 Congress enacted the Alaska Native Claims Settlement Act. 43 U.S.C. §§ 1601-28 (1982) (ANCSA). ANCSA authorized the conveyance of some 44 million acres to Alaskan native corporations. One of ANCSA’s key provisions withdrew public lands surrounding native villages from all public appropriations, except for lands “subject to valid existing rights.” 43 U.S.C. § 1610(a)(1) (1982).

In administering ANCSA, the Secretary was required to determine whether townsite land that had been segregated, but not yet subdivided and distributed, was within this exception for “valid existing rights.” In 1972 the Director of the Bureau of Land Management issued a memorandum concluding that if the occupants had filed their petition to segregate, i.e. if the occupants had begun the first step of the process, before ANCSA’s enactment, the land came within the existing rights exception. Shortly after issuance, the Acting Secretary of the Interior approved the memorandum. Although the memorandum was not published, its contents were made known to native corporations.

In 1976 Congress repealed ANTA. Federal Land Policy and Management Act of 1976, Pub. L. No. 94-579, § 703(a), 90 Stat. 2743, 2789-90 (1976). There remains, however, the question whether the Secretary properly allowed distribution of land within townsites between 1971 and 1976. Additionally, the intervenor defendants argued before the district court that the legislation repealing ANTA had been incorrectly interpreted to foreclose new entries, post-1976, on townsite lands under townsite laws, but this argument has not been pursued on appeal. The major issue for our resolution is whether the Secretary’s interpretation of the existing rights exception contained in 43 U.S.C. § 1610(a)(1) should stand.

In an earlier phase of this case, on appeal from the district court’s denial of a preliminary injunction, we concluded that preliminary injunctive relief should be granted to the extent necessary to prohibit the Secretary from granting deeds, so that the status quo would be maintained pending disposition of the entire case. Aleknagik Natives Ltd. v. Andrus, 648 F.2d 496 (9th Cir. 1980). In the course of that opinion, we reached preliminary conclusions that the district court did not adopt after considering arguments by all of the parties below. We now agree with the district court’s analysis, which it reached after a full hearing and careful consideration of the consequences of the Secretary’s interpretation with respect to individual occupants, municipal corporations, and village corporations, including the effect of dividing surface and subsurface rights. Aleknagik Natives, Ltd. v. United States, 635 F. Supp. 1477 (D. Alaska 1985). We adopt the well-reasoned and extensive opinion of the district court as to all of the issues raised on this appeal, and set forth here a summary of those issues and of our conclusions.

Appellants contend that the Secretary’s position was incorrect. They argue that only townsite land which had reached the subdivisional step should fall within the existing rights exception. We reject that argument and uphold the Secretary’s interpretation, as did the district court.

We rule at the outset that we owe the Secretary’s interpretation considerable deference. Kunaknana v. Clark, 742 F.2d 1145, 1150 (9th Cir. 1984); Jones v. Giles, 741 F.2d 245, 249 (9th Cir. 1984). His interpretation was reasonable.

In their challenge to the Secretary’s interpretation, appellants point out that at the time of segregation, municipalities are not certain to receive any land. A municipality’s receipt of any parcel is contingent upon both completion of a subdivision map and an occupant’s not choosing the parcel. These contingencies, appellants assert, take a municipality’s interest outside the statutory phrase “valid existing rights.”

We conclude that “valid existing rights” does not necessarily mean vested rights. Under the Act before its repeal, a municipality, and all individuals who had occupied specific lots within the subdivision limits, had a legitimate claim for municipal control of any unoccupied lots, control which would enhance the corporate sense of community and the powers of the municipality to control its immediate surroundings. It is rational to conclude that when the Congress repealed the law and enacted a savings clause for “existing rights,” that this claim would be preserved. The term “valid existing rights” does not necessarily mean present possessory rights, or even a future interest in the property law sense of existing ownership that becomes possessory upon the expiration of earlier estates. Legitimate expectations may be recognized as valid existing rights, especially where the expectancy is created by the government in the first instance. The claim here is all the more compelling because its holder is the municipality, representing in the corporate sense the individual aspirations of separate lot occupants who were entitled to rely upon the municipality’s ability to own and control unsold and unoccupied lands. A government is most responsible when it recognizes as a right that which is not strictly enforceable but which flows nevertheless from the government’s own prior representations. That in essence is what the Secretary has done here. The Secretary’s reading of the words “valid existing” to mean something other than “vested” is reasonable.

Appellants contend that the legislative history points to a more limited interpretation and argue that Congress intended to provide native village corporations with the central lands in the village, as well as a buffer zone of land around the village. They cite legislative reports that identify the need to “provide protection and a buffer from the intrusions of others.” S. Rep. No. 925, 91st Cong., 2d Sess. 59 (1970). This buffer and protection, appellants claim, will be destroyed if non-natives are allowed to occupy these lands.

Although we agree that resort to legislative history is appropriate, we are unpersuaded by appellants’ interpretation. It would have been reasonable for the Secretary to assume in 1971-72 that most individuals who would benefit from the continuation of settlement would be natives. In fact between 1971 and 1976 almost two-thirds of these deeds went to natives. Further, only through continuation of the townsite distributions could natives receive restricted deeds that would increase the likelihood that they would be able to retain their lands and eliminate any pressure to generate a profit from its sale. 43 C.F.R. §§ 2564.4, 2564.6-2564.7 (1971). The Secretary’s interpretation was reasonably consistent with the buffer zone purpose of ANCSA.

The Secretary’s interpretation also had beneficial effects that are completely consistent with ANCSA’s purpose of setting up a reasonable and rational land allocation system. Under appellants’ proposed interpretation, all vacant, unsubdivided townsite lands would have been withdrawn as of 1971. The surface estate in these lands would then have been conveyed to the local village corporations as part of their total ANCSA entitlements. The subsurface estate, however, would have been conveyed to the corresponding regional corporations. See 43 U.S.C. §§ 1610(a)(1), 1611(a)(1), 1613(f) (1982). Such divided ownership is not necessarily consistent with sound municipal planning.

Appellants make two other arguments, both of which can be dismissed quickly. Appellants contend that even if the Secretary’s interpretation of section 11(a)(1) of ANCSA is upheld, the Secretary violated ANTA section 3, 43 U.S.C. § 735 (repealed 1976), by failing to administer townsite lands exclusively for natives. Section 3 of ANTA does not, however, say “exclusively.” It merely says the Secretary “is authorized to” extend the townsite laws to Indian and Eskimo villages. We need look no further than the words of the statute to reject appellants’ argument on this score.

Finally, appellants argue that the Secretary violated the Administrative Procedure Act, 5 U.S.C. § 553, section 25 of ANCSA, 43 U.S.C. § 1624 (1982), and the Freedom of Information Act, 5 U.S.C. § 552(a) (1) (D), by not publishing the interpretation of ANCSA. We think, however, that the district court properly applied our holdings in Alcaraz v. Block, 746 F.2d 593, 613 (9th Cir. 1984), and Powderly v. Schweiker, 704 F.2d 1092, 1098 (9th Cir. 1983), in reaching the conclusion that the memorandum was not “substantive,” as that term is used in the statutes.

The judgment of the district court is AFFIRMED.

INTRODUCTION

Plaintiff, Tyonek Native Corporation (“Tyonek”), a village corporation organized under the Alaska Native Claims Settlement Act, (“ANCSA”), 43 U.S.C. §§ 1601 et seq., appeals from an adverse judgment in its action against defendant, Cook Inlet Region, Inc., (“Cook Inlet”), one of twelve regional corporations established under ANCSA.

The Alaska Native Claims Settlement Act was enacted into law “to provide an equitable solution to the claims made by the Natives of Alaska through a combination of land and money.” H.R. 92-523, 92nd Cong., 1st Sess., 1971 U.S. Code Cong. & Ad. News 2192, 2193. Under ANCSA, the surface estate in some 22 million acres of land was patented to village corporations such as Tyonek. The subsurface estate in those same lands was patented to regional corporations such as Cook Inlet. 43 U.S.C. §§ 1611, 1613. Lands so divided are referred to as the “dually owned lands.” Another 16 million acres, the “fee lands,” were patented in their entirety to regional corporations, but those corporations are required to distribute most of the revenues from the subsurface estate among all the regional corporations in Alaska. 43 U.S.C. § 1606(j).

This case arises with regard to land dually owned by Tyonek and Cook Inlet. The issue is whether sand and gravel reserves form part of Tyonek’s surface estate or Cook Inlet’s subsurface estate.

DISCUSSION

Against a background of recurring dispute between regional corporations and village corporations over the rights to sand and gravel, Tyonek brought this action for a declaratory judgment. Its brief complaint asked the district court for a declaration of Tyonek’s “surface rights in dually owned lands including their rights to all uses including movement and placement of sand, stone, gravel, pumicite and cinders.” In support of its complaint, Tyonek argued broadly that sand and gravel (which term we take to include stone, pumicite and cinders) is by its nature more appropriately considered part of the surface estate than of the subsurface estate. The district court was of the view that the question was controlled by our decision in Chugach Natives, Inc. v. Doyon, Ltd., 588 F.2d 723 (9th Cir. 1978), and that sand and gravel were generally a part of the subsurface estate. We agree.

Chugach, like this case, presented the question “whether sand and gravel are part of the surface or subsurface estate.” Id. at 725. It held that such deposits were part of the subsurface estate. The issue arose, however, on fee lands that were wholly owned by a regional corporation. For that reason, Tyonek contends that the question was a totally different one, and that Chugach’s decision regarding surface versus subsurface estates on fee lands simply does not address the issue of surface versus subsurface rights on dually owned lands. 

Chugach cannot be brushed aside that easily, however. Important economic rights turned on the distinction between surface and subsurface rights in that case, because revenues from the subsurface estate are broadly shared under ANCSA. 43 U.S.C. § 1606(j). That economic distinction, which was a substantial basis for Chugach’s conclusion that sand and gravel belonged to the subsurface, also exists in this case. Moreover, we stated in Chugach:

Technically, the only issue on appeal here is whether the district court erred in holding that sand and gravel are part of the subsurface estate in lands entirely owned by the Regional Corporations. Our decision on this issue, however, necessarily affects the disposition of sand and gravel on dually owned lands, since, as we discuss below, the term “subsurface estate” under ANCSA must have the same meaning regardless of who owns the surface estate. Thus, we exercise our discretion to review the reasoning and holdings of the district court with respect to dually owned, as well as wholly owned, lands.

588 F.2d at 725 n.7. The district court in this case understandably construed this language to control the issue presented here. It is true, as Tyonek points out, that in Aleut Corp. v. Tyonek Native Corp., 725 F.2d 527 (9th Cir. 1984), we characterized the above passage from Chugach as dictum, but we also stated that it was likely to have a stare decisis effect adverse to Tyonek. Id. at 529-30. That likelihood has now come to pass. Chugach and its reasoning control this case.

Our conclusion that Chugach governs this case necessarily dispenses with many of the arguments of Tyonek, because they were rejected in Chugach. Tyonek’s analogies to provisions of ANCSA permitting village corporations to select surface lands and sand and gravel rights in National Wildlife Refuges or National Petroleum Reserves were rejected in Chugach, 588 F.2d at 729-30, as were its contentions founded on the first Koniag Amendment to ANCSA, id. at 730-31. Also rejected were arguments based on the economic and practical hardships to the villages if they did not own the sand and gravel. Id. at 731-32. Tyonek elaborates on those arguments more fully here than they were treated in Chugach, but any principled application of Chugach still requires their rejection. 

Tyonek invokes a post-Chugach amendment to ANCSA that retains for the villages “revenues from the sale of surface resources harvested or extracted from” village lands conveyed to a municipality. 43 U.S.C. § 1613(c). It argues that resources “extracted” can only be sand and gravel. But the legislative history indicates that Congress was aware of pending disputes over the ownership of gravel, and simply included that reference in case gravel were decided to belong to the surface estate. Alaska National Interest Lands Conservation Act of 1979: Hearings on H.R. 39 Before the House Comm. on Interior and Insular Affairs, 96th Cong., 1st Sess. 1018 (1979)(statement of Morris Thompson, President of Alaska Federation of Natives, Inc.). The same understanding of Congress underlies the second Koniag Amendment, ANILCA § 1427(1), which Tyonek also urges in its support. S. Rep. No. 96-413, 96th Cong., 1st Sett. 325, reprinted in [1980] U.S. Code Cong. & Admin. News 5070, 5269. In sum, we find nothing in any of the legislation urged by Tyonek that impugns or undermines the authority of Chugach and its application to this case. We also find no comfort for Tyonek in Watt v. Western Nuclear, Inc., 462 U.S. 36, 76 L. Ed. 2d 400, 103 S. Ct. 2218 (1983), in which the Supreme Court held that gravel was part of the mineral (i.e., subsurface) estate reserved to the United States in lands conveyed pursuant to the Stock-Raising Homestead Act of 1916.

For all these reasons, we affirm the judgment of the district court that general ownership of sand and gravel on dually owned lands lies with the subsurface estateholder.

Incidental Rights

Tyonek urges this court, as it did the district court, to declare its incidental ownership rights. By “incidental rights” it apparently refers to uses of sand and gravel incidental to the enjoyment of the surface estate. The district court declined to rule on this claim because, unlike Tyonek’s arguments on the broader issue of commercial extraction and sale of sand and gravel, the incidental rights issue had not been extensively or adequately briefed. Tyonek contends that the district court should have addressed this issue and now asks this court to do so.

Except for anecdotal references in the briefs, no facts have been presented which would allow us to rule on a “real and substantial controversy admitting of specific relief through a decree of conclusive character, as distinguished from an opinion advising what the law would be on a hypothetical state of facts.” Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 241, 81 L. Ed. 617, 57 S. Ct. 461 (1937). We have no idea how broad these hypothetical “incidental” uses would be, or the context in which they would be asserted. The function of declaratory relief is precise resolution and not general admonition. United States v. Washington, 759 F.2d 1353, 1357 (9th Cir. 1985) (en banc) cert. denied, 474 U.S. 994, 88 L. Ed. 2d 358, 106 S. Ct. 407 (1985). Tyonek has not brought forth a justiciable controversy.[1] The district court did not abuse its discretion in refusing to rule on the claim of incidental rights. 

CONCLUSION

Chugach controls this case. The district court was therefore correct in concluding that the general ownership of sand and gravel deposits lies with the subsurface estateholder.

The district court did not abuse its discretion in ruling that Tyonek’s claim to the right of incidental uses of sand and gravel was not presented with sufficient concreteness to permit a decision. Whether or not the surface estateholder has a right of incidental use, and the extent of any such right, will have to await decision another day.

The judgment of the district court is AFFIRMED.