State of Alaska v. US

• Decision Date: 22 April 1987
• Docket Number: No. A80-359 Civil (Gulkana River).,A80-359 Civil (Gulkana River).
• Citation: 662 F. Supp. 455
• Parties: STATE OF ALASKA, Plaintiff, v. UNITED STATES of America, Donald Hodel, Secretary of the Interior; Robert Penford, Alaska State Director, Bureau of Land Management; Ahtna, Inc., and STA-KEH Corporation, Defendants.
• Court: U.S. District Court — District of Alaska

662 F. Supp. 455

STATE OF ALASKA, Plaintiff, v. UNITED STATES of America, Donald Hodel, Secretary of the Interior; Robert Penford, Alaska State Director, Bureau of Land Management; Ahtna, Inc., and STA-KEH Corporation, Defendants.

No. A80-359 Civil (Gulkana River).

United States District Court, D. Alaska.

April 22, 1987.

Harold M. Brown, Atty. Gen., Micheal W. Sewright, Kenneth C. Powers, Asst. Attys. Gen., Dept. of Law, Office of the Atty. Gen., Anchorage, Alaska, for State of Alaska.

Larry Martin Corcoran, Dept. of Justice, Land and Natural Resources Div., General Litigation Section, Benjamin Franklin Station, Washington, D.C., for defendant U.S.

Robert M. Goldberg, Robert M. Goldberg and Associates, Anchorage, Alaska, for defendant Ahtna, Inc.

David C. Crosby, Wickwire, Lewis, Goldmark & Schorr, Seattle, Wash., Baily & Mason, Anchorage, Alaska, for amicus curiae Arctic Slope Regional Corp.

SECOND AMENDED ORDER RE PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT and UNITED STATES' CROSS MOTION FOR JUDGMENT ON THE PLEADINGS

LAUGHLIN E. WATERS, Senior District Judge.

This case raises difficult questions concerning application of the well settled principle that a state is vested with title to the beds underlying navigable waterbodies at the time the state enters the Union. The State of Alaska has filed this suit in part for the purpose of obtaining review pursuant to 43 U.S.C. § 1631 of a determination by the Bureau of Land Management that the lower 30 miles of the Gulkana River is a non-navigable waterway belonging to the United States.¹ Alaska claims that this portion of the Gulkana is navigable and that therefore title to the riverbed has at all times belonged to the State of Alaska. Ahtna, Inc.,² to whom the United States transferred purported title to the lower 30 miles of the Gulkana River, is also named by Alaska as a defendant. Presently pending before the court is Alaska's motion for summary judgment and the United States' cross motion for judgment on the pleadings. For the reasons set forth below, the court now grants Alaska's motion and denies the United States' cross motion.

Background

The Alaska Native Claims Settlement Act ("ANCSA") permits Native Alaskans to select through regional and village native corporations approximately 44 million acres of public land in Alaska in settlement of aboriginal land claims they had to lands held by the United States at the time Alaska entered the Union. See 43 U.S.C. § 1601 et seq. The Alaska Statehood Act, 48 U.S.C. note prec. § 21, permits the State of Alaska to select approximately 103.5 million acres of public land in Alaska. However, under the "equal footing doctrine," see Pollard's Lessee v. Hagan, 44 U.S. (3 How.) 212, 229, 11 L.Ed. 565 (1845), and its codification in the Submerged Lands Act of 1953, 43 U.S.C. § 1301 et seq., title to the beds of navigable inland waterbodies passes from the United States to the state when the state enters the Union. Utah v. United States, 403 U.S. 9, 10, 91 S.Ct. 1775, 1776, 29 L.Ed.2d 279 (1971); Bonelli Cattle Co. v. Arizona, 414 U.S. 313, 324 n. 19, 94 S.Ct. 517, 525 n. 19, 38 L.Ed.2d 526 (1973), overruled on other grounds, Oregon v. Corvallis Sand & Gravel Co., 429 U.S. 363, 97 S.Ct. 582, 50 L.Ed.2d 550 (1977); Oregon v. Riverfront Protection Ass'n., 672 F.2d 792, 794 (9th Cir.1982); Alaska v. United States, 754 F.2d 851, 853 n. 3 (9th Cir.), cert. denied, 474 U.S. 968, 106 S.Ct. 333, 88 L.Ed.2d 317 (1985). Because title to the beds of navigable waterbodies passed automatically to Alaska at the time of statehood, they are neither available for selection nor chargeable to either the ANCSA or the Alaska Statehood Act entitlements. See generally 43 U.S.C. §§ 1602(e), 1610-1611, 1615, 1631 and 48 U.S.C. prec. 21, Sec. 6(a) and (b). Conversely, the beds of non-navigable waterbodies are available for selection and, if selected, are chargeable against the recipient's entitlement. The United States Department of Interior is responsible for processing the State and native corporation selections and for transferring title to them. See 43 U.S.C. §§ 1611, 1613 and 48 U.S.C. prec. 21, Sec. 6(a) and (g). In processing native corporation selections, the Bureau of Land Management ("BLM") of the Department of Interior makes administrative determinations of navigability. 43 U.S.C. § 1631(b); 43 C.F.R. 2650.5-1(b) (1983); see Alaska v. United States, 754 F.2d 851, 852 n. 2 (9th Cir.), cert. denied, 474 U.S. 968, 106 S.Ct. 333, 88 L.Ed.2d 317 (1985).

On May 16, 1979, BLM issued an administrative decision finding the lower 30 miles of the Gulkana River system non-navigable. On June 29, 1979, the United States made an interim conveyance pursuant to ANCSA of the same lower 30 miles of the Gulkana River system to Ahtna, Inc., an ANCSA regional corporation. In response, Alaska, on November 25, 1980, filed the instant suit.

In its pleadings, Alaska alleged that the very possibility the United States might declare the portions of the Gulkana River not conveyed to Ahtna, Inc. non-navigable created a cloud over Alaska's title to those portions of the river. As a consequence, in addition to specifically challenging the conveyance of the lower 30 miles of the Gulkana to Ahtna, Inc., Alaska sought by its suit to quiet title in the entirety of the Gulkana River System. Alaska also sought a declaratory judgment³, pursuant to 28 U.S.C. § 2201, concerning (1) the navigability of the Gulkana River System and (2) the relevancy of the criteria applied by BLM in making navigability determinations while processing claims under ANCSA to Gulkana River System lands. Alaska has since represented to this court that in the event summary judgment was entered in its favor on the quiet title portion of the suit, Alaska would not elect to pursue the portion of the suit seeking the foregoing declaratory judgment⁴. Alaska's Reply to United States' Opposition to Alaska's Motion for Reconsideration at p. 7; Alaska's Memorandum in Support of Motion for Reconsideration at p. 6.

On June 27, 1984, the United States disclaimed pursuant to 28 U.S.C. § 2409a(d) ownership interest in all but the upper reaches of the Gulkana River System. This disclaimer was confirmed by the court on September 24, 1984. On March 1, 1985, the State of Alaska moved to voluntarily dismiss with prejudice any claim to the remaining upper reaches of the Gulkana River System in which the United States still claimed an interest.⁵ This motion was granted on March 4, 1985. As a consequence of the United States' disclaimer and Alaska's voluntary dismissal, no concrete dispute remains between the United States and Alaska as to the ownership of the Gulkana River System and the court is without jurisdiction over the United States with respect to the quiet title portion of Alaska's suit. See 28 U.S.C. § 2409a(d). However, the Court retains jurisdiction over the United States pursuant to 43 U.S.C. § 1631 to review the Secretary of Interior's determination that the lower 30 miles of the Gulkana River is non-navigable.⁶See McIntyre v. United States, 490 F.Supp. 830 (D.Alaska 1980). Moreover, because Ahtna, Inc. did not join in the United States' disclaimer, a live controversy remains between Alaska and Ahtna, Inc. as to title to the lower 30 miles of the Gulkana River System. Ahtna, Inc. has joined in the United States' cross motion for judgment on the pleadings. Ahtna, Inc.'s Opposition to Motion for Summary Judgment at pp. 1-2 (filed June 17, 1983).

Conveyance by BLM of a parcel of submerged land to a Native Corporation is subject to de novo review in District Court. See 43 U.S.C. § 1631(a). The execution of an interim conveyance by BLM conveying a parcel of submerged land is the "final agency action" with respect to a decision by the Secretary of Interior that the water covering the parcel is not navigable. 43 U.S.C. § 1631(b).

Discussion

As indicated above, resolution of the parties' claims turns on the question of whether the contested 30 miles of the Gulkana River System are "navigable" as that term is defined under federal law. The federal test for navigability was first articulated in The Daniel Ball⁷, 77 U.S. (Wall.) 557, 563, 19 L.Ed. 999 (1870):

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 or travel are or may be conducted in the customary modes of trade or travel on water.

See also Utah v. United States, 403 U.S. 9, 10, 91 S.Ct. 1775, 1776, 29 L.Ed.2d 279 (1971).

This much the parties agree on. What the parties disagree about is how the Daniel Ball test should be applied. As the United States would have it, a navigability determination would be a two step process: the first step would be to select the customary commercial watercraft in use in Alaska at the time of statehood (the craft that would be selected is referred to by the United States in its papers as the "magic boat"), and the second step would be to examine the river to determine if it is usable by the craft. The State of Alaska, on the other hand, rejects the first step of the United States' two step process. According to Alaska, navigability is not established by identification of a "magic boat" but rather is established by determining (1) the capability of the waterbody to be used for transportation of people or goods from point to point on the water; (2) whether the watercraft used or capable of being used on the waterbody are customary means of transporting people or goods; and (3) whether the use or susceptibility to use of the waterbody for transporting persons or goods existed in the natural and ordinary condition of the water on the date of statehood.

Careful examination of the positions of the United States and Alaska reveals that the difference between them stems in significant part from differing conceptions of...