State of Alaska v. Ahtna, Inc., 87-3555

Citation891 F.2d 1401
Decision Date13 December 1989
Docket NumberNo. 87-3555,87-3555
Parties, 20 Envtl. L. Rep. 20,745 STATE OF ALASKA, Plaintiff-Appellee, v. AHTNA, INC.; and Sta-Keh Corporation, Defendants-Appellants, and United States of America; William Clark, Secretary of the Interior; Robert Penfold, Alaska State Director, Bureau of Land Management, Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Robert M. Goldberg, Robert M. Goldberg & Associates, Anchorage, Alaska, for defendants-appellants.

Kenneth C. Powers, Asst. Atty. Gen., Anchorage, Alaska, for plaintiff-appellee.

Blake Watson, Dept. of Justice, Washington, D.C., for defendants-appellees.

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

Geoffrey Y. Parker, Anchorage, Alaska; Michael W. Sewright, Burr, Pease & Kurtz, Anchorage, Alaska, for amicus.

Jan S. Stevens, Supervising Deputy Atty. Gen., Sacramento, Cal., Robert K. Corbin, Atty. Gen. of State of Ariz., Steven S. Michaels and William M. Tam, Deputy Attys. Gen., Honolulu, Hawaii, Jim Jones, Atty. Gen. of State of Idaho, Neil F. Hartigan, Atty. Gen. of State of Ill., William L. Webster, Atty. Gen. of State of Missouri, Mike Greely, Atty. Gen. of State of Mont., Robert Henry, Atty. Gen. of State of Okl., Dave Frohmayer, Atty. Gen. of State of Or., Kenneth O. Eikenberry, Atty. Gen. of State of Wash., Donald J. Hanaway, Atty. Gen. of State of Wis., Joseph B. Meyer, Atty. Gen. of State of Wyo., for amicus.

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

Before O'SCANNLAIN, LEAVY and TROTT, Circuit Judges.

LEAVY, Circuit Judge:

OVERVIEW

The Bureau of Land Management ("BLM") conveyed the lands underlying 30 miles of the lower Gulkana River to Ahtna, Inc. ("Ahtna"), a native regional corporation under the Alaska Native Claims Settlement Act ("ANCSA"), 43 U.S.C.A. §§ 1601-1629(e) (West 1986 & Supp.1989). The district court set aside the conveyance, holding that that segment of the Gulkana was navigable when Alaska became a State in 1959, and therefore, the underlying lands were the property of Alaska, not subject to conveyance by the federal government. Ahtna appeals. We affirm.

FACTS AND PROCEEDINGS

The facts are not disputed. The Gulkana River System ("the River" or "the Gulkana") is composed of clear water streams located in southcentral Alaska. The River flows through diverse lands containing tundra, spruce forests, and lakes. It displaces 3,600 to 4,800 cubic feet per second from May to September, decreasing to 200 to 300 cubic feet per second from November through April, when the River lies frozen. The parties stipulate that the physical characteristics of the River, such as water volume, gradients, geology, and general weather, are the same as they were when Alaska became a State in 1959.

The part of the River at issue in this case is its lower 30 miles ("the lower Gulkana"), extending from Sourdough Campground (River mile 33.5) to the River's mouth at the Copper River (mile 0). The shallowest part of the River, at mile 3.75, is normally a foot and a half deep, diminishing to a foot during low-flow season. On average, however, the River in these lower 30 miles is 125-150 feet wide and 3 feet deep.

The parties agree that today, between mile 3.75 and mile 30, and between mile 0 and mile 3.5, the River is customarily used, or is susceptible to use, by the following types of watercraft: (1) flat or round-bottom aluminum or fiberglass powerboats 16 to 24 feet long by 4 to 10 feet wide, capable of carrying loads between 900 and 2,000 lbs.; (2) inflatable rafts between 12 and 15.5 feet long by 4 to 7 feet wide, with a load capacity of 1,250 to 2,000 lbs.; and (3) square-sterned motorized freight canoes and double-ended paddle canoes 15 to 19 In the years immediately preceding Alaska's admission into the Union, from the 1940's to 1959, hunters and fishermen travelled the River in powered 16 to 24-foot fiberglass and aluminum watercraft. The watercraft had a load capacity of approximately 1,000 lbs.

feet long, capable of carrying loads of 500 to 900 lbs.

Most of the use of the River is recreational. On a typical busy weekend day in June or July, 20 boats will use the lower 30 miles of the River, carrying approximately 60 people.

Since the 1970's it has been possible to take guided fishing and sightseeing trips on the River. The industry employs watercraft of the type stipulated to be customarily used in the Gulkana, that is, 20 to 24-foot long aluminum powerboats and 12 to 15.5-foot long inflatable rafts. Today, the industry employs over 400 people. Rafts usually carry five passengers and one guide, providing for a load often in excess of 1,000 lbs. Average fare is $150.00 per passenger.

On May 16, 1979, the BLM made an administrative decision finding that (1) the lower Gulkana River was not navigable, and (2) that the underlying submerged lands were federally-owned property subject to conveyance to village corporations under ANCSA. 1 Alaska v. United States, 662 F.Supp. 455, 456-57 (D.Alaska 1987). The BLM thereafter made an interim conveyance of the submerged lands of the lower Gulkana to Ahtna, a native regional corporation organized under ANCSA. 2

The State of Alaska challenged the conveyance to Ahtna. States generally hold title to the lands underlying navigable rivers within their boundaries. Utah v. United States, 482 U.S. 193, 196, 107 S.Ct. 2318, 2320, 96 L.Ed.2d 162 (1987). Alaska maintained before the district court that the lower Gulkana was navigable, that title to the underlying lands belonged to Alaska, and that the BLM's conveyance was therefore void. Alaska v. United States, 662 F.Supp. at 456. The parties stipulated to all the relevant facts.

The district court granted summary judgment in favor of Alaska. The court concluded that in most cases, including this one, a river functions as a "highway for commerce," and therefore is navigable, if it is capable of transporting people or goods. Id. at 466. Since the stipulated facts showed that the lower Gulkana has been and is used for transport of goods and people, the court concluded the portions of the River here at issue were navigable. Id. at 467-68.

Ahtna appeals. The United States, which before the district court endorsed the BLM's determinations of nonnavigability, now argues as an appellee that the lower Gulkana is navigable but for reasons other than those stated by the district court. Amicus Arctic Slope Regional Corporation joins Ahtna in support of a determination of nonnavigability. Amici, affiliates of the National Wildlife Federation, outdoor sports organizations, and several States, join the State of Alaska in support of a decision of navigability.

STANDARD OF REVIEW

The facts are undisputed. We review de novo the granting of summary judgment in favor of Alaska. Gabrielson v. Montgomery Ward & Co., 785 F.2d 762, 764 (9th Cir.1986).

DISCUSSION
I. The Navigability Determination

The several States ordinarily hold title to the lands underlying navigable rivers The second source of authority for the rule is the Submerged Lands Act of 1953. By that act, Congress vested in the States "title to and ownership of the lands beneath navigable waters within the boundaries of the respective States." 43 U.S.C. § 1311(a) (1982). Congress explicitly provided for this rule to apply to Alaska when Alaska became a State in 1959. 48 U.S.C. Chapter 2 ("the Statehood Act") note 6(m) prec. sec. 21 (1982).

                within their boundaries.   Two sources of authority justify this rule.   One is the "equal footing doctrine," which guarantees to newly-admitted States the same rights enjoyed by the original thirteen States and other previously-admitted States.  Utah v. United States, 482 U.S. at 196, 107 S.Ct. at 2320;  Pollard's Lessee v. Hagan, 44 U.S.  (3 How.) 212, 228-29, 11 L.Ed. 565 (1845).   One of these rights is title ownership to the lands underlying navigable rivers.  Utah v. United States, 482 U.S. at 196, 107 S.Ct. at 2320;  see also United States v. Alaska, 437 F.2d 1081, 1084 (9th Cir.1971)
                

Thus, the dispositive issue before the district court was whether the lower thirty miles of the Gulkana were navigable. If navigable, title to the submerged lands passed to Alaska at statehood, and the BLM was without power to convey the lands to Ahtna. If non-navigable, the lands remained federal and available for conveyance to Ahtna under ANCSA.

Whether a river is navigable is a federal question. United States v. Holt State Bank, 270 U.S. 49, 55-56, 46 S.Ct. 197, 199, 70 L.Ed. 465 (1926). The relevant navigability test states as follows:

Those rivers must be regarded as public navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water.

The Daniel Ball, 77 U.S. (19 Wall.) 557, 563, 19 L.Ed. 999 (1870); see, e.g., Oregon v. Riverfront Protection Ass'n, 672 F.2d 792, 794 (9th Cir.1982). 3 Although the river must be navigable at the time of statehood, United States v. Utah, 283 U.S. 64, 75, 51 S.Ct. 438, 440, 75 L.Ed. 844 (1931) (footnote omitted), this only means that, at the time of statehood, regardless of the actual use of the river, the river must have been susceptible to use as a highway for commerce. Id. 283 U.S. at 83, 51 S.Ct. at 443.

A river's use "need not be without difficulty, extensive, or long and continuous" for the river to be a highway for commerce. Riverfront Protection, 672 F.2d at 795 (portion of the McKenzie River found navigable when used to transport "thousands of logs," even though shallow areas and sand bars made the transport difficult). It is not essential that the river be used for the transportation of water-borne freight by a carrier whose purpose is to make money from the...

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