City of Angoon v. Marsh

• Decision Date: 27 December 1984
• Docket Number: No. 84-3819,84-3819
• Citation: 749 F.2d 1413
• Parties: CITY OF ANGOON, et al., Plaintiffs-Appellees, and Sierra Club and the Wilderness Society, Intervenors/Plaintiffs-Appellees, v. John MARSH, Jr., Secretary of the Army, et al., Defendants, and Shee Atika, Inc., Intervenor/Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1413

749 F.2d 1413

CITY OF ANGOON, et al., Plaintiffs-Appellees and Sierra Club and the Wilderness Society Intervenors/Plaintiffs-Appellees, v. John MARSH, Jr., Secretary of the Army, et al., Defendants and Shee Atika, Inc., Intervenor/Defendant-Appellant.

No. 84-3819.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 8, 1984.

Decided Dec. 27, 1984.

Durwood J. Zaelke, Sierra Club Legal Defense Fund, Inc., Washington, D.C., Frederick P. Furth, Furth, Fahrner, Bluemle & Mason, San Francisco, Cal., for appellees.

Richard Baenen, Pierre J. LaForce, Wilkinson, Barker, Knauer & Quinn, Washington, D.C., Robert L. Klarquist, David C. Shilton, Dept. of Justice, Washington, D.C., for intervenor/defendant-appellant.

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

Before WRIGHT, SNEED, and ALARCON, Circuit Judges.

ALARCON, Circuit Judge:

Appellant Shee Atika, Inc. (hereinafter Shee Atika) appeals from the district court's order granting a preliminary injunction enjoining the cutting of timber and related activities on Admiralty Island. The district court held that such activities violated section 503(d) of the Alaska National Interest Lands Conservation Act of 1980, Pub.L. 96-487, 94 Stat. 2371 et seq. (December 2, 1980) (partially codified at 16 U.S.C. Sec. 3101 et seq.) (hereinafter ANILCA). ANILCA Sec. 503(d) prohibits the sale or harvesting of timber on lands "within" National Forest Monuments. Shee Atika contends that the district court erred in holding that its lands were "within the Monument" and therefore subject to the section 503(d) prohibition against timber harvesting.

I

This interlocutory appeal represents the latest episode in the decade long struggle between the Shee Atika and the City of Angoon, the Sierra Club and the Wilderness Society (hereinafter Sierra-Angoon). ¹

Shee Atika is an Alaska Native Corporation established pursuant to the Alaska Native Claims Settlement Act, 43 U.S.C. Sec. 1601 et seq. (hereinafter ANCSA), to receive and administer the ANCSA benefits of the Natives of Sitka, Alaska. Its stockholders are some 1,900 Tlingit, Haida, and Tsimshian Indians.

The Sierra Club and the Wilderness Society are national conservation organizations. Both have long been committed to the maintenance of Admiralty Island as a wilderness area.

Admiralty Island is an island in southeast Alaska consisting of approximately 1.1 million acres of land. The island is sparsely populated. It is largely undeveloped. The City of Angoon, consisting of approximately 500 inhabitants, is the only permanent population center on Admiralty Island.

Congress enacted ANCSA in 1971 to settle the aboriginal claims of Alaskan Natives. ANCSA authorized the payment of almost $1 billion cash and the conveyance of approximately 40 million acres of land to Alaskan Natives as compensation for extinguishment of their claims and to assist them in achieving financial independence and self-sufficiency. See 43 U.S.C. Sec. 1601 et seq. A portion of lands in the Hood Bay area of the southwest section of Admiralty Island was selected by Shee Atika as its ANCSA land entitlement. ²

Sierra-Angoon challenged Shee Atika's selection of land on Admiralty Island by filing actions in the Federal District Court for the District of Alaska. ³ While this litigation was pending, members of Congress proposed a legislative solution to their dispute. This proposal led to the addition of section 506 to ANILCA. Section 506 authorized the conveyance of land located 35 miles from the City of Angoon to Shee Atika. Shee Atika ultimately agreed to accept approximately 23,000 acres in the northwest part of the island for the release of all claims to its selected land in the vicinity of Hood Lake. ⁴

Shee Atika harvested timber on 276 acres during the spring of 1983. It intended to harvest approximately 400 acres during the 1984 season. Sierra-Angoon opposed both the harvest and the transport of the cut timber across these lands, and filed suit on January 13, 1983. On March 22, 1984, Sierra-Angoon filed a motion seeking a preliminary injunction against a continuation of timber harvesting and related activities. The district court granted the preliminary injunction, finding that the lands conveyed to Shee Atika pursuant to section 506(c) of ANILCA were within the Admiralty Island National Monument and thereby subject to the timber harvesting prohibition of section 503(d) of ANILCA.

We conclude that the district court erred in reading section 503(d) to prohibit timber harvesting on the land conveyed to Shee Atika by section 506(c).

II

An order granting a preliminary injunction must be affirmed unless the court abused its discretion or based its decision on an erroneous legal premise. Lydo Enterprises, Inc. v. City of Las Vegas, 745 F.2d 1211 (9th Cir.1984); Apple Computer v. Formula Int'l, Inc., 725 F.2d 521, 523 (9th Cir.1984). We have determined that a preliminary injunction should be issued upon a clear showing of either (1) probable success on the merits and possible irreparable injury or (2) sufficiently serious questions going to the merits to make them fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief. City of Las Vegas, at 1212. These are not really entirely separate tests, but are merely extremes of a single continuum. Lopez v. Heckler, 725 F.2d 1489, 1498 (9th Cir.1984), petition for cert. filed, 53 U.S.L.W. 3070 (U.S. July 20, 1984) (No. 84-115); Benda v. Grand Lodge of International Association of Machinists & Aerospace Workers, 584 F.2d 308, 315 (9th Cir.1978), cert. denied, 441 U.S. 937, 99 S.Ct. 2065, 60 L.Ed.2d 667 (1979).

In holding that a preliminary injunction was appropriate in this instance, the district court found that Sierra-Angoon had demonstrated a fair chance of success on the merits of their claim that Shee Atika's lands were contained within the Monument and thereby subject to the timber harvesting prohibition contained in section 503(d). The court also found that the balance of hardships in the absence of an injunction tipped sharply in favor of the plaintiffs, and that the public interest reflected in section 503(c) favored an injunction. We disagree with the court's conclusions. Contrary to the district court's analysis, both the language and the legislative history of ANILCA clearly establish that the harvesting ban in section 503(d) applies only to public lands.

III

Sometime after the passage of ANCSA, Congress became aware of the need for a legislative means of maintaining the proper balance between the designation of national conservation areas and the necessary disposition of public lands for more intensive private use. Thus, ANILCA was passed to furnish guidelines for the protection for the national interest in the scenic, natural, cultural and environmental values of the public lands in Alaska and to provide an adequate opportunity for satisfaction of the economic and social needs of the people of Alaska. See 16 U.S.C. Sec. 3101. In fulfillment of this dual purpose, ANILCA provides directions to both the Secretary of the Interior, who is in charge of the Native Alaskan affairs, including ANCSA land selections, and the Secretary of Agriculture, who is in charge of the National Forest System. See 16 U.S.C. Sec. 3102(12) (the term "Secretary" means the Secretary of the Interior, except that when such term is used with respect to any unit of the National Forest System, such term means Secretary of Agriculture).

Section 503(d) of ANILCA 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." (emphasis added). Notwithstanding the plain language of the statute, limiting its application to land "within the Monument" the district court found that all lands within the boundaries of a National Forest System Monument come within the harvesting prohibition of section 503(d). This was an erroneous interpretation of the statute. The phrase "within the Monument" was never intended to apply to private lands which are within the boundaries of a national forest conservation system unit.

Section 503(b) specifically identifies Admiralty Island National Monument as being composed of "approximately 921,000 acres of public lands ..." (emphasis added). Public lands are defined as land situated in Alaska which, after December 2, 1980, are Federal lands, except land selections of a Native Corporation made under ANCSA. 16 U.S.C. Sec. 3102(3)(B). Federal lands are defined as "lands the title to which is in the United States after December 2, 1980 ...," 16 U.S.C. Sec. 3102(2). Thus, it is clear that the "Monument," by definition, consists solely of public or federally owned lands. Sierra-Angoon concede, and the district court found, that Shee Atika's lands are private lands.

The legislative history of section 503(d) plainly indicates that it was proposed to constrain the Secretary of Agriculture's management of federally owned or public lands. Section 503(d) was drafted by the Senate Committee on Energy and Natural Resources to apply to Misty Fjords National Monument. It was later extended, without change, to cover Misty Fjords and Admiralty Island National Monuments. The language of the Senate Committee Report is revealing. It provided that the Misty Fjords Monument would be made up of "public lands" and would be managed by the United States Forest Service. S.Rep. No. 96-413, 96th Cong., 1st Sess. (1979). It further states:

The committee amendment provides statutory direction to the Forest Service regarding management of the monument. The area is to continue to be managed as part of the Tsongas National Forest subject to specific exceptions ....

(2) The area is closed to the sale or harvest of timber under...