Wilderness Soc. v. Griles
| Decision Date | 14 July 1987 |
| Docket Number | No. 86-5205,86-5205 |
| Citation | 824 F.2d 4,262 U.S. App. D.C. 277 |
| Parties | , 17 Envtl. L. Rep. 21,117 WILDERNESS SOCIETY, a non-profit corporation, et al., Appellants v. J. Steven GRILES, Assistant Secretary, Department of Interior, et al. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from the United States District Court for the District of Columbia (Civil Action No. 84-01823).
Ronald J. Wilson, Washington, D.C., for appellants.
Roger J. Marzulla, Deputy Asst. Atty. Gen., Dept. of Justice, with whom Robert L. Klarquist and Claire L. McGuire, Attys., Dept. of Justice, Washington, D.C., were on the brief for appellees, Dept. of Interior, et al.
Kenneth C. Powers, Asst. Atty. Gen., State of Alaska, Anchorage, Alaska, for appellee, State of Alaska. John W. Katz, Anchorage, Alaska, also entered an appearance for the State of Alaska.
Kenneth C. Bass III, with whom Steven W. Budd and Arthur Lazarus, Jr., Washington, D.C., were on the brief for appellees, Alaska Federation of Natives, Inc., et al. Jeffrey J. Peck, Washington, D.C., also entered an appearance for Alaska Federation of Natives.
John W. Angus III, Washington, D.C., was on the brief for appellees, Calista Corp. and Kwethluk, Inc.
Before WALD, Chief Judge, EDWARDS and GINSBURG, Circuit Judges.
Opinion for the Court filed by Chief Judge WALD.
Our largest state, estimated at between 357,000,000 and 375,000,000 acres, Alaska remains, to this day, an area with undetermined and shifting land ownership. The Alaska Statehood Act, passed in 1958, authorized the new state to select over 100,000,000 acres of federal land from designated areas during a period of thirty-five years. Outstanding land claims by Alaskan native groups further complicated the uncertainty of land ownership in the state. In 1971, Congress passed the Alaska Native Claims Settlement Act, extinguishing aboriginal claims by granting Alaskan natives approximately 44,000,000 acres of land, also to be selected from designated areas.
The underlying issue in this case involves how claimed land in Alaska is surveyed. In 1983 the Bureau of Land Management (BLM) of the Department of the Interior (DOI) changed the policy governing the allocation of submerged lands underneath nonnavigable waters, providing that all such lands of sufficient size for measurement would be "meandered" (a special method of measuring the acreage of submerged lands) and excluded from the total acreage charged against the relevant group's land grant. (Navigable waters and their submerged lands are subject to state control in all cases.) So, for example, if prior to the new policy the state took a 100 acre parcel that included 20 acres of submerged lands, after the new policy it could take a 120 acre parcel that included the same 20 acres of submerged lands, because those 20 acres would not now be charged against its total grant amount. 1
The Wilderness Society and the Sierra Club, plaintiff-appellants, are conservationist/environmental groups whose members use various wilderness areas and other public lands throughout Alaska for recreational activities. 2 They brought suit in District Court challenging the decision to exclude submerged lands from the amount of acreage charged against the state's or natives' grant as contrary to congressional intent. Plaintiffs claim that the necessary effect of the new allocation policy is to increase the number of acres shifted from federal to either state or native ownership, thereby injuring the groups and their members who use federal lands in Alaska.
The District Court, in an unpublished memorandum and order dated January 30, 1986, held that plaintiffs lack standing to challenge BLM's determination to exclude submerged lands from the total acreage charged against state or native grants. On the current record, we conclude as well that plaintiffs have not shown a sufficient likelihood of future injury to survive a motion for summary judgment. However, we find that the District Court erred in denying plaintiffs discovery pending resolution of defendants' motion to dismiss, and then deciding the standing question on defendants' alternative motion for summary judgment. Accordingly, we remand for further proceedings. 3
a. Alaska Statehood Act. On January 3, 1959, Alaska became our forty-ninth state. Proclamation No. 3269, 24 Fed.Reg. 81 (1959). The Alaska Statehood Act (ASA), passed the previous summer, granted over 100,000,000 acres to the state, "from the public lands of the United States in Alaska which are vacant, unappropriated, and unreserved at the time of their selection," to be selected "within thirty-five years after the admission of Alaska into the Union." Pub.L. No. 85-508, Sec. 6(a) & (b), 72 Stat. 339 (1958), 48 U.S.C. prec. Sec. 21 b. Alaska Native Claims Settlement Act. Congress enacted the Alaska Native Claims Settlement Act (ANCSA) in 1971, extinguishing aboriginal title claims to certain Alaskan lands by granting the natives approximately 44,000,000 acres plus substantial monetary payments. Under ANCSA, local village corporations and broader-based regional corporations may select lands from those withdrawn from public use. 43 U.S.C. Secs. 1610-11. Regulations promulgated pursuant to the Act permit the village and regional corporations to select acreage in excess of their entitlements and to prioritize those selections, though only the statutorily prescribed acreage may actually be conveyed. 43 C.F.R. Secs. 2651.4(f) & 2652.3(f) (1986).
c. Alaska National Interest Lands Conservation Act. Though plaintiffs do not allege its violation, the Alaska National Interest Lands Conservation Act (ANILCA) is nonetheless relevant to the case for three reasons. First, it authorizes the state to select acreage in excess of its entitlement under ASA, and to prioritize such selections. 43 U.S.C. Sec. 1635(f). Second, its section on "Status of lands within units" helps explain how federal wilderness lands may be affected by the challenged decision. Third, along with ASA and ANCSA, ANILCA provides the support for our conclusion that plaintiffs pass the "zone of interests" standing test.
The state and natives may select their entitlements from either public lands under BLM management (BLM lands), which are generally open to either state or native selection, or from Conservation System Units (CSUs), established by ANILCA, which include national parks, national wildlife refuges, national conservation and recreation areas, national forests, and national wild and scenic rivers. 4 An ANILCA section entitled "Status of lands within units" helps explain how CSUs may be transferred from federal to state or native hands:
(1) Notwithstanding any other provision of law, subject to valid existing rights any land withdrawn pursuant to section 17(d)(1) of the Alaska Native Claims Settlement Act [43 U.S.C. Sec. 1616(d)(1) ] and within the boundaries of any conservation system unit, national recreation area, national conservation area, new national forest or forest addition, shall be added to such unit and administered accordingly unless, before, on, or after December 2, 1980, such land has been validly selected by and conveyed to a Native Corporation, or unless before December 2, 1980, such land has been validly selected by, and after December 2, 1980, is conveyed to the State. At such time as the entitlement of any Native Corporation to land under the Alaska Native Claims Settlement Act is satisfied, any land within a conservation system unit selected by such Native Corporation shall, to the extent that such land is in excess of its entitlement, become part of such unit and administered accordingly: Provided, That nothing in this subsection shall necessarily preclude the future conveyance to the State of those Federal lands which are specified in a list dated October 19, 1979, submitted by the State of Alaska and on file with the Office of the Secretary: Provided further, That nothing in this subsection shall affect any conveyance to the State pursuant to subsections (b), (c), (d), or (g) of this section.
(2) Until conveyed, all Federal lands within the boundaries of a conservation system unit, national recreation area, national conservation area, new national forest or forest addition, shall be administered in accordance with the laws applicable to such unit.
43 U.S.C. Sec. 1635(o ).
Thus, if land within a CSU is validly selected by and conveyed to a native corporation at any time, it passes to native ownership and out of the CSU. Similarly, land selected before and conveyed after the passage of ANILCA may pass validly into state hands. Hence, it is clear that CSU lands may be affected by state or native selections. 5
On December 5, 1983, BLM published an "Interim Waiver of Regulations and Establishment of Policy," which was summarized in the Federal Register as follows:
This rule waives 43 CFR 2650.5-1(b) pending the publication of final rules reflecting the Department's change in policy related to the chargeability of submerged lands, and establishes a policy that will not require that certain submerged lands be charged against the entitlement of Alaska Native corporations pursuant to the Alaska Native Claims Settlement Act or against the entitlement of the State of Alaska pursuant to the Alaska Statehood Act.
48 Fed.Reg. 54,483 (1983). Thus, the rule changed the published regulations regarding the chargeability of submerged lands against native entitlements, and it altered an unpublished policy regarding the chargeability of submerged lands against state entitlements.
BLM took no further action with regard to the state; thus, the "establishment of policy" announced in the rule, by itself, determined that submerged lands would not be charged against the state entitlement. As for...
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