Aleknagik Natives, Ltd. v. United States, A 77-200 Civil.

• Decision Date: 30 May 1986
• Docket Number: No. A 77-200 Civil.,A 77-200 Civil.
• Citation: 635 F. Supp. 1477
• Parties: ALEKNAGIK NATIVES, LTD., et al., Plaintiffs, v. UNITED STATES of America, et al., Defendants.
• Court: U.S. District Court — District of Alaska

635 F. Supp. 1477

ALEKNAGIK NATIVES, LTD., et al., Plaintiffs, v. UNITED STATES of America, et al., Defendants.

No. A 77-200 Civil.

United States District Court, D. Alaska.

March 19, 1985.

Submitted for Publication May 30, 1986.

James F. Vollintine, Anchorage, Alaska, for plaintiffs.

Michael Spaan, U.S. Atty., Deborah Smith, Asst. U.S. Atty., Anchorage, Alaska, for federal defendants.

Monte Engle, Donald Cooper, Anchorage, Alaska, for intervenors English Bay Village Council and Port Graham Village Council.

Joe P. Josephson, James N. Reeves, Anchorage, Alaska, for assorted non-federal defendants.

Rolfe Watson, Conway, Massachusetts, Basil Atkinson, Ekwok, Alaska, in pro. per.

OPINION

FITZGERALD, Chief Judge.

In 1891 and 1926, Congress extended the operation of the federal townsite laws to Alaska, including the Territory's Native people, "until it otherwise ordered." 26 Stat. 1099, 43 U.S.C. § 732 (repealed 1976); 44 Stat. 629, 43 U.S.C. §§ 733-736 (repealed 1976). The present action raises issues having to do with the impact of two recent congressional enactments, the Alaska Native Claims Settlement Act of 1971 (ANCSA), 43 U.S.C. §§ 1601-1628, and the Federal Land Policy and Management Act of 1976 (FLPMA), 43 U.S.C. §§ 1701-1782, upon the continued operation and administration of the townsite laws in Alaska. This court must now determine whether ANCSA or FLPMA terminated or modified the operation of the townsite laws on lands that had been "segregated" for townsite locations and for which subdivisional surveys had been requested prior to the enactment of ANCSA and FLPMA, but which had not yet been occupied or subdivided until after the legislation became effective.

The plaintiffs, three native village corporations organized under the provisions of ANCSA and the village and municipal councils for those villages, contend that ANCSA terminated the operation of the townsite laws on all townsite lands that were vacant and unsubdivided at the time of ANCSA's passage in 1971. They suggest that the Secretary of the Interior erred when he failed to withdraw these lands from further occupancy under the townsite laws, but instead permitted both native and non-native individuals to initiate claims on these lands under the townsite laws.

The intervenors, who are the traditional village councils of two unincorporated native villages, contend that ANCSA did not terminate or alter the applicability of the federal townsite laws on vacant and unsubdivided townsite lands, and agree with the Secretary's interpretation of ANCSA's effect on the administration of townsite lands. However, the intervenors contend that the Secretary erred following the enactment of FLPMA in 1976, when he interpreted FLPMA to foreclose any new entries under the townsite laws on townsite lands which were then vacant and unsubdivided.

The Secretary has applied ANCSA as not altering the operation of the townsite laws on lands that had been previously segregated for townsites. However, he has interpreted FLPMA to foreclose any new entries under the townsite laws after 1976. All parties have moved for summary judgment. Because I find the Secretary's interpretation of the statutes to be reasonable, I grant summary judgment in favor of the federal defendants against both the plaintiffs and the intervenors.

THE STATUTES

1. Federal Townsite Acts and Regulations

In the Townsite Act of March 3, 1891, 26 Stat. 1099, 43 U.S.C. § 732 (repealed 1976), Congress extended the federal townsite laws to Alaska. It provided that the Secretary of the Interior could designate one or more townsite trustees, who would be authorized to "enter" public lands in various parts of Alaska "for town-site purposes," in compliance with the federal townsite laws, see 43 U.S.C. § 718 (repealed), and who could set aside those lands "for the several use and benefit of their occupants." 26 Stat. 1099. Congress also directed the Secretary to promulgate regulations under which trusts could be executed "in favor of the inhabitants of each town site," the lands in each townsite could then be surveyed into lots, and the vacant lots sold, with the proceeds going to the trust. 26 Stat. 1099-1100.

In the Alaska Native Townsite Act (ANTA) of May 25, 1926, 44 Stat. 629, 43 U.S.C. §§ 733-736 (repealed 1976), Congress specifically authorized the extension of the townsite laws and the issuance of townsite deeds to Alaskan natives. See S.Rep. No. 793, 69th Cong., 1st Sess. 1-2 (1926). Congress provided that title to any lands conveyed to natives under the townsite laws would be inalienable, except as specifically approved by the Secretary, and that such lands would not be subject to taxation, seizure for nonpayment of debts, or adverse possession. 44 Stat. 629. In 1948, Congress authorized the townsite trustees to issue deeds to natives under the townsite laws that were unrestricted "as to sale, encumbrance, or taxation" (but not as to seizure for nonpayment of debts, other than obligations to the federal government), if the Secretary found that the individual native was "competent to manage his own affairs" and if the native specifically petitioned for an unrestricted deed. 62 Stat. 35, 43 U.S.C. § 737; 43 CFR §§ 2564.6-2564.7.

The Secretary promulgated detailed regulations implementing the statutes and establishing procedures for entering upon and obtaining title to public lands under the townsite laws in Alaska. Occupants taking up lands in a proposed townsite were required to apply to the Bureau of Land Management (BLM) for a survey of the exterior boundaries of the townsite. However, excluded from the proposed townsite were those lands required for government purposes and any claims relating back to Russian occupancy. The exterior boundary survey was performed at government expense. 43 CFR § 2565.1(a); See Memorandum of December 7, 1976 from Regional Solicitor John M. Allen to Townsite Trustee at 4 (indicating that procedures required under 43 CFR § 2565 for "Non-Native Townsites" in Alaska also apply to native townsites). Once the survey of the townsite's exterior boundaries had been approved by the Secretary, a majority of its occupants had to petition the Secretary for appointment of a townsite trustee and for survey of the townsite's interior "into lots, blocks, and municipal reservations for public use."¹ 43 CFR § 2565.1(b). The filing of this petition was noted on the public land records, and the Secretary has held that it operated to "segregate the land from further disposal under the public land laws." Memorandum of Feb. 20, 1979 from Regional Solicitor John M. Allen to Townsite Trustee at 2-3 hereinafter cited as Allen Memorandum; Affidavit of George Gustafson at 2, November 19, 1982 (emphasis in original) hereinafter cited as Gustafson Affidavit; see 43 CFR § 2091.4. After the petition was filed, the Secretary designated a trustee,² who filed any necessary applications and proof of occupancy for the lands in the townsite, collected any required purchase prices from the inhabitants, and then made formal entry of the townsite.³ 43 CFR §§ 2565.1(c)-2565.2; Gustafson Affidavit, supra at 2.

Following these steps, those areas of the townsite that were occupied were "subdivided by the United States into blocks, lots, streets, alleys, and municipal public reservations," with the expense of this subdivisional survey borne through lot-by-lot assessment.⁴ 43 CFR § 2565.3(a)-(b). The other areas of the townsite remained unsubdivided until they were subsequently occupied. Gustafson Affidavit, supra, at 2. Once the plat of each subdivisional survey was approved by the BLM, the Secretary issued a patent for the lands included in the survey to the trustee, who in turn issued deeds to all occupants who had fully paid any purchase price and assessments required for their lots. 43 CFR §§ 2565.3(c)-2565.4. Non-natives received unrestricted deeds for their lots, making them freely alienable, taxable, and subject to seizure for non-payment of debts and to adverse possession, whereas natives could either obtain unrestricted or restricted deeds (under which their lots would not be freely alienable or subject to taxes or seizure), depending upon their requests and the Secretary's determinations concerning their "competence to manage their own affairs." 43 CFR §§ 2564.4, 2564.6-2564.7.

The date that each particular subdivisional survey was approved represented a cut-off date for new occupancy claims on the lands contained in that survey: no individual could begin occupying any of these lands under the townsite laws after that date.⁵ 43 CFR § 2565.3(c). Once each subdivisional survey had been completed, all lots within that survey that remained unoccupied and unclaimed could be sold by the trustee at a public sale.⁶ 43 CFR § 2564.5. The trustee and the Secretary could use any proceeds from selling these lots to make public improvements in the townsite; if the inhabitants had already formed a municipal corporation, all proceeds were turned over to the municipality "for its use and benefit," and all lots that had not been sold were deeded to the municipality. 43 CFR § 2565.7; Allen Memorandum, supra, at 2. When all lands in the original townsite had been progressively subdivided and distributed in this manner, the townsite trust was terminated.

2. ANCSA's Impact on the Administration of Townsites

On December 18, 1971, Congress enacted ANCSA and authorized the conveyance of approximately 44 million acres to Alaska native corporations. In order to provide native village corporations with an opportunity to acquire lands in the vicinity of their villages, ANCSA Section 11(a)(1) withdrew all public lands surrounding native villages "from all forms of appropriation under the public land laws," except for those lands already "subject to valid existing rights." 43 U.S.C. § 1610(a)(1) (emphasis added). ANCSA section 12(a)(1) gave village corporations three years from the passage of the act to select...