Rowe v. United States

Citation464 F. Supp. 1060
Decision Date23 February 1979
Docket NumberA76-283 Civil.,No. A76-280 Civil,A76-280 Civil
PartiesRichard ROWE et al., Plaintiffs, v. UNITED STATES of America et al., Defendants. John T. ROWLETT et al., Plaintiffs, v. UNITED STATES of America et al., Defendants.
CourtU.S. District Court — District of Alaska

COPYRIGHT MATERIAL OMITTED

Robert L. Hartig, J. Michael Robbins, Cole, Hartig, Rhodes, Norman & Mahoney, Anchorage, Alaska, for plaintiff Rowe.

W. C. Arnold, R. Eldridge Hicks, Ruskin, Barker & Hicks, Anchorage, Alaska, for plaintiff Rowlett.

Alexander O. Bryner, U. S. Atty., Anchorage, Alaska, Cynthia L. Pickering, Land and Natural Resources Div., Dept. of Justice, Anchorage, Alaska, James E. Brookshire, Land and Natural Resources Div., Dept. of Justice, Washington, D. C., for defendant United States of America.

Kevin F. Kelly, Wickwire, Lewis, Goldmark, Dystel & Schorr, Seattle, Wash., Stephan E. DeLisio, Merdes, Schaible, Staley & DeLisio, Anchorage, Alaska, for defendant Arctic Slope Regional Corp.

MEMORANDUM OPINION AND ORDER

FITZGERALD, District Judge.

These two cases, now before the court on cross-motions for summary judgment, manifest a continuing effort by plaintiffs to secure oil and gas leases on the North Slope of Alaska.1 Plaintiffs are unsuccessful applicants for federal oil and gas leases filed under provisions of the Mineral Leasing Act of 1920.2 The defendants are the United States, the Secretary of the Department of the Interior,3 and the Arctic Slope Regional Corporation,4 one of twelve Native corporations established by Act of Congress in the Alaska Native Claims Settlement Act of 1971.5 In large part, plaintiffs seek judicial review of the Secretary's rulings6 upholding certain land selections and subsequent conveyances made to defendant Regional Corporation pursuant to the Settlement Act. These conveyances, plaintiffs claim, should be made subject to oil and gas leases to which plaintiffs are entitled.7 A review of the history of Alaska Native land claims, and their relationship to the mining laws applicable to Alaska, serves to put the issues in perspective.

I. HISTORY OF THE CASE

Alaska Native land claims extend back in time to the Treaty of Cession of March 30, 1867; however, they were not directly addressed by Congress until passage of the Settlement Act in 1971. Although an earlier opinion of this Court traces this history in considerable detail,8 it bears repeating that when the Mineral Leasing Act was passed in 1920, no provision was included respecting Alaska Native use or occupancy. The first significant statute providing for conveyance of lands to Natives in Alaska, then under territorial status, merely provided procedures whereby Natives might acquire patents to lots within Native townsites.9

For a number of reasons, no treaties were ever executed between the United States and Alaska Native groups either designating reservation lands for Native occupation, or defining Native fish and game rights; and although seven reservations were created by the Secretary, and other lands withdrawn by various Executive Orders for the benefit of certain Native groups, these actions did not affect the Native groups inhabiting the North Slope.10

The situation of the North Slope Natives remained largely unchanged until passage of the Alaska Statehood Act in 1958.11 Congress provided in the Statehood Act that Alaska in making its selection of 102,500,000 acres, "disclaim all right and title . . . to any lands or other property (including fishing rights), the right or title to which may be held by any Indians, Eskimos, or Aleuts . . . or is held by the United States in trust for said Natives." The Act went on to declare that such "lands or other property" would remain within the absolute jurisdiction and control of the United States "until disposed of under its authority, except to such extent as the Congress had prescribed or may hereafter prescribe . . .."12 As a result, Native rights were untouched by the Statehood Act.

It was the intent of Congress in the Statehood Act to provide the new state with a solid economic foundation.13 It is therefore not surprising that in addition to the grant of 102,500,000 acres of land, the State of Alaska was granted 90 percent of the revenues received by the United States from coal and mineral leases situated on Alaskan lands retained by the federal government.14

Given this policy of the federal government regarding the disposition of Alaskan lands, it is also not surprising that in the same year as passage of the Statehood Act, the Secretary issued Public Land Order 162115 opening large sections of federally-owned North Slope lands to mineral exploration by private individuals through issuance of oil and gas leases under the Mineral Leasing Act.16

The 1958 lease opening of PLO 1621 amounted to a general release of the lands described. Before designated tracts might be opened to leasing, it was necessary to prepare, approve and file leasing maps and to publish a notice of availability in the Federal Register.17

By early 1964 only two areas had had the proper protraction maps drawn up and filed. Leases were issued for those lands.18 At that time protraction maps existed for the balance of the opened lands, but the Secretary had not yet caused them to be filed. However, the Department did have detailed plans underway to lease approximately 16-18 million acres located between the two areas already leased. This was to be accomplished in four separate openings.19 It is the fourth and last of these openings that is the subject of controversy in these two cases.

An analysis of the essential features of the Mineral Leasing Act as it existed in 1966 is appropriate at this time. Section 226 of the Act grants discretionary authority to the Secretary to issue oil and gas leases on federal lands. Subsection (c), the provision applicable to these cases, concerns the leasing of lands "not within any known geological structure of a producing oil or gas field" and provides that such leasing may occur without competitive bidding, on a priority-in-time basis.20

Two procedures were devised for the noncompetitive leasing of § 226(c) federal lands. Under the first, or "simultaneous filing" method, lease applicants filed offers pursuant to a notice from the Secretary that lands were available for leasing. This was the procedure followed by the plaintiffs in Rowe. On a designated date, the Secretary would hold a drawing to determine the "successful drawee," as between several lease applicants for a particular block of acreage. Once so determined, the successful drawee became the first qualified applicant or offeror for a particular lease.21

The second or noncompetitive leasing method (involving the Rowlett plaintiffs) simply involved the filing of "over-the-counter" lease offers in the designated office of the Bureau of Land Management; the first qualified applicant to file an offer would acquire priority for a lease as against other lease applicants. The Department employed this second method to facilitate the leasing of two types of land: land for which no lease applications had been received under the "simultaneous filing" method but which remained opened and available, and land for which current lease terms had expired under the mandatory ten-year limitation.

Public Land Order 1621, together with Public Land Order 3521, required that a simultaneous filing period be provided for in the four separate openings previously mentioned. Additionally, the Secretary had promulgated extensive regulations governing the two noncompetitive lease filing procedures.22

In September, 1966, the Secretary published the fourth and last notice relating to PLO 3521 lands.23 The September notice provided that those offers to lease filed between September 26, 1966, and November 18, 1966, would be considered as having been simultaneously filed.24 Thereafter over-the-counter offers to lease would be considered for blocks of lands which did not have outstanding simultaneous offers on the date of the drawing.

The Rowe plaintiffs responded to the September notice by filing offers within the simultaneous filing period. The Rowlett plaintiffs thereafter filed over-the-counter offers for a number of the remaining blocks. The Rowlett plaintiffs apparently also filed over-the-counter offers for lands opened by the three earlier notices,25 although all the Rowlett offers were filed between 1966 and 1969.26

Long before the September, 1966 leasing program, Native groups and individuals had voiced protests against State and Federal disposition of lands alleged by the Natives to be subject to claims of aboriginal ownership. Beginning in late 1961 the Bureau of Indian Affairs filed protests on behalf of various Native groups,27 including protests conflicting with 1,750,000 acres of the State's initial selections. As State selections continued through the 1960's, the filing of individual or village protests mounted steadily. By April, 1968, forty protests, covering some 300,000,000 acres, or 80% of the State, had been filed, with the North Slope Native Association laying claim to virtually the entire North Slope.28

The position of the Bureau of Land Management29 shifted somewhat over these years as the number of protests increased. In 1961 the relevant provision of the Department regulations30 required only that "lands occupied by Indians, Aleuts and Eskimos, in good faith will not be subject to entry or appropriation by others." (Emphasis added.) Protests filed for lands falling beyond the narrow scope of the regulations were thus dismissed. The corresponding position of the Regional Solicitor of the Department was to recognize only protests based upon occupancy ultimately leading to grant of allotments under the Alaska Native Allotment Act. Claims based solely on Indian title were to be dismissed. However, in 1962 appeals from dismissals of Native land claims had reached the office of the...

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    ...1980). 16 The cases cited by defendants to the contrary are either inapplicable or factually distinguishable. In Rowe v. United States, 464 F.Supp. 1060 (D.Alaska 1979), modified, 633 F.2d 799 (9 Cir. 1980), cert. denied, 451 U.S. 970, 101 S.Ct. 2047, 68 L.Ed.2d 349 (1981), the court's rese......
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