City of Angoon v. Hodel

Decision Date31 October 1986
Docket Number86-3617 and 86-3618,86-3582,Nos. 85-4413,s. 85-4413
Parties, 17 Envtl. L. Rep. 20,180 CITY OF ANGOON, the Sierra Club, the Wilderness Society, et al., Plaintiffs- Appellees, v. Donald HODEL, Secretary of the Interior, et al., Shee Atika, Inc. and Sealaska Corp., Defendants-Appellants. CITY OF ANGOON, the Sierra Club, the Wilderness Society, et al., Plaintiffs- Appellants, v. Donald HODEL, Secretary of the Interior, et al., Defendants, and Shee Atika, Inc., Defendant-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Frederick P. Furth, Jeffrey Glick, Furth, Fahrner, Bleumle & Mason, San Francisco, Cal., for City of Angoon.

Durwood Zaelke, Sierra Club Legal Defense Fund, Inc., Washington, D.C., for Sierra Club.

F. Henry Habicht, II, Asst. Atty. Gen., Bruce Landon, Atty., Dept. of Justice, Anchorage, Alaska, Robert L. Klarquist, David C. Shilton, Dept. of Justice, Washington, D.C., for Federal defendants-appellants.

Jonathan K. Tillinghast, Stephen F. Sorensen, Birch, Horton, Bittner, Pestinger & Anderson, Juneau, Alaska, for Sealaska Corp.

Richard Anthony Baenen, Pierre J. LaForce, Wilkinson, Barker, Knauer & Quinn, Washington, D.C., Jacquelyn R. Luke, Middleton, Timme & McKay, Anchorage, Alaska, for Shee Atika, Inc.

Appeal from the United States District Court for the District of Alaska.

Before SNEED, KENNEDY, and WIGGINS, Circuit Judges.

PER CURIAM:

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. Sec. 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. Secs. 4321-4370a, 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. Secs. 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. Sec. 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. Sec. 1344, and section 10 of the River and Harbor Act of 1899, 33 U.S.C. Sec. 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. Sec. 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, Sec. 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. Sec. 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. Sec. 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. Sec. 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. Sec. 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. Sec. 3120, and because the Secretary of the Interior failed to protect access to subsistence resources under section 811 of ANILCA, 16 U.S.C. Sec. 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...

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