Alaska Public Easement Defense Fund v. Andrus

• Decision Date: 19 August 1977
• Docket Number: and A77-17.,A77-16,Civ. No. A75-204
• Citation: 435 F. Supp. 664
• Parties: ALASKA PUBLIC EASEMENT DEFENSE FUND, an unincorporated association, Dale Bondurant, Tom Prunty, Darrell Farmen, Plaintiffs, v. Cecil ANDRUS, Secretary of the Interior, Curt Berklund, Director of the Bureau of Land Management, Department of the Interior, and Curtis McVee, Alaska Director of the Bureau of Land Management, Department of the Interior, Defendants. CALISTA CORPORATION, Chugach Natives, Inc., Cook Inlet Region, Inc., Doyon, Limited, Koniag, Inc., Nana Regional Corporation, Inc., Alaska Federation of Natives, Inc., Plaintiffs, v. Cecil ANDRUS, Secretary of the Interior, Defendant, State of Alaska, Defendant by Intervention. SEALASKA CORPORATION, Plaintiff, v. SECRETARY OF the INTERIOR, Defendant, State of Alaska, Defendant by Intervention.
• Court: U.S. District Court — District of Alaska

435 F. Supp. 664

ALASKA PUBLIC EASEMENT DEFENSE FUND, an unincorporated association, Dale Bondurant, Tom Prunty, Darrell Farmen, Plaintiffs, v. Cecil ANDRUS, Secretary of the Interior, Curt Berklund, Director of the Bureau of Land Management, Department of the Interior, and Curtis McVee, Alaska Director of the Bureau of Land Management, Department of the Interior, Defendants.

CALISTA CORPORATION, Chugach Natives, Inc., Cook Inlet Region, Inc., Doyon, Limited, Koniag, Inc., Nana Regional Corporation, Inc., Alaska Federation of Natives, Inc., Plaintiffs, v. Cecil ANDRUS, Secretary of the Interior, Defendant,

State of Alaska, Defendant by Intervention.

SEALASKA CORPORATION, Plaintiff, v. SECRETARY OF the INTERIOR, Defendant,

State of Alaska, Defendant by Intervention.

Civ. Nos. A75-204, A77-16, and A77-17.

United States District Court, D. Alaska.

July 7, 1977.

As Amended August 19, 1977.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

L. Mark Wine, Land and Natural Resources Div., Dept. of Justice, Washington, D. C., Donald J. Beighle, Juneau, Alaska, David Wolf, Keane, Harper, Pearlman & Copeland, Anchorage, Alaska, for plaintiffs Alaska Public Easement Defense Fund in A75-204 and for Calista Corp. et al. in 77-16 and Sealaska Corp. in 77-17.

James D. Sourant, Sourant & Strandberg, Henry J. Camarot, and Mark A. Sandberg, Merdes, Schaible, Staley & DeLisio, Robert M. Goldberg, Joe P. Josephson, Anchorage, Alaska, James Wickwire, Wickwire, Lewis, Goldmark & Dystel, Seattle, Wash., E. G. Burton, Burr, Pease & Kurtz, Inc., Ben J. Esch, Dickson, Evans & Esch, Robert Wagstaff, Wagstaff & Middleton, A. Robert Hahn, Jr., Hahn, Jewell & Stanfill, John Anthony Smith, Russell J. Gallagher, Gallagher, Cranston & Snow, Kenneth P. Eggers, Groh, Benkert & Walter, Anchorage, Alaska, J. P. Tangen, Robertson, Monagle, Eastaugh & Bradley, Juneau, Alaska, Peter R. Ellis, Ellis, Sund & Whittaker, Inc., Ketchikan, Alaska, James D. Linxwiler, John R. Snodgrass, Graham & James, Douglas B. Baily, Matthews, Dunn & Baily, Anchorage, Alaska, for Alaska Public Easement Defense Fund.

Michael M. Holmes, Falkner, Banfield, Doogan & Holmes, Juneau, Alaska, Thomas Meacham, Asst. Atty. Gen., State of Alaska, Anchorage, Alaska, Edward Weinberg, Duncan, Brown, Weinberg & Palmer, Arthur Lazarus, Jr., Fried, Frank, Harris, Shriver & Kampelman, Washington, D. C., Milton M. Souter, Kodiak, Alaska, Stan B. Stanfill, Hahn, Jewell & Stanfill, Anchorage, Alaska, Richmond F. Allen, Weissbrodt & Weissbrodt, Washington, D. C., for Calista Corp. et al. in 77-16 and for Sealaska Corp. in 77-17.

G. Kent Edwards, U. S. Atty., Dist. of Alaska, Anchorage, Alaska, for defendant.

MEMORANDUM AND ORDER

von der HEYDT, Chief Judge.

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,...