Wisenak, Inc. v. Andrus
| Citation | 471 F. Supp. 1004 |
| Decision Date | 07 June 1979 |
| Docket Number | No. F76-38 Civil.,F76-38 Civil. |
| Parties | WISENAK, INC., an Alaska Corporation, Plaintiff, v. Cecil ANDRUS, Individually and as Secretary of the Interior of the United States of America, Defendant. |
| Court | U.S. District Court — District of Alaska |
COPYRIGHT MATERIAL OMITTED
Alaska Legal Services Corporation, Michael J. Frank, Gregory M. O'Leary, Frederick Torrisi, Anchorage, Alaska, for plaintiff.
Alexander O. Bryner, U. S. Atty. for Alaska, Anchorage, Alaska, for defendant.
THIS CAUSE comes before the court on plaintiff's motion for partial summary judgment and on defendant's motion for summary judgment.
"Native group" is defined in 43 U.S.C. § 1602(d) as "any tribe, band, clan, village, community, or village association of Natives in Alaska composed of less than twenty-five Natives, who comprise a majority of the residents of the locality."
On December 28, 1971, ten days after enactment of ANCSA, the Secretary of Interior through his Assistant Secretary issued Public Land Order (PLO) 5150 which withdrew and reserved various federal public lands, subject to valid existing rights, as a utility and transportation corridor for the Alaska oil pipeline. 36 Fed.Reg. 25410 (December 31, 1971). The land order was issued "by virtue of the authority vested in the President and pursuant to Executive Order 10355 of May 26, 1952 (17 F.R. 4831). . . ." PLO 5150 established a corridor extending from the North Slope of Alaska (Prudhoe Bay) south to Valdez on Prince William Sound.
Regulations promulgated by the Secretary provide that "Native group selections shall not exceed the amount recommended by the regional corporation or 320 acres for each Native member of a group, or 7,680 acres for each Native group, whichever is less." 43 C.F.R. § 2653.6(b)(1) (1978). On December 17, 1973, the plaintiff Wisenak, Inc.,1 filed a selection application for various lands totalling 7,680 acres. All of the lands selected had been withdrawn and reserved from the public domain by PLO 5150 for the Alaska pipeline utility and transportation corridor.
On May 9, 1974, the Alaska State Office of the Bureau of Land Management (BLM) rejected plaintiff's application on the ground that the lands selected by plaintiff were withdrawn under the public land laws and from selection by Native groups. The Alaska Native Claims Appeal Board (ANCAB) affirmed the decision of the BLM. Plaintiff in this lawsuit seeks to reverse the ANCAB decision.
A "Native group" is distinguished from a "Native village" by being composed of less than the twenty-five or more Alaskan Natives required for a "Native village." Compare 43 U.S.C. § 1602(c) with 43 U.S.C. § 1602(d). 43 U.S.C. § 1613(h) authorizes the Secretary to "withdraw and convey 2 million acres of unreserved and unappropriated public lands located outside the areas withdrawn by sections 1610 and 16152 of this title" and provides several ways in which the Secretary may dispose of the land withdrawn.3 One of those ways is to convey to a Native group, if it incorporates under the laws of Alaska, the surface estate4 of no more than 23,040 acres in the group's locality. 43 U.S.C. § 1613(h)(2). As stated previously the Secretary has promulgated regulations which give a Native group the right to select up to 7,680 acres of land. 43 C.F.R. § 2653.6(b) (1978). The court can only conclude from 43 U.S.C. § 1613(h) that the Native group's selection rights are limited to the lands that the Secretary is authorized to withdraw and to convey, namely, unreserved and unappropriated lands.
The authority cited in the order for this withdrawal was the Pickett Act, the Act of June 25, 1910, 36 Stat. 847 (formerly 43 U.S.C. § 141)5 and the implied authority of the President to withdraw public lands from entry or sale.6 The Pickett Act stated:
The President may, at any time in his discretion, temporarily withdraw from settlement, location, sale, or entry any of the public lands of the United States, including Alaska, and reserve the same for water-power sites, irrigation, classification of lands, or other public purposes to be specified in the orders of withdrawals, and such withdrawals or reservations shall remain in force until revoked by him or by an Act of Congress.
The Act authorized the President7 to withdraw public lands from disposal temporarily for public purposes. United States v. Consolidated Mines & Smelting Co., 455 F.2d 432, 442-43 (9th Cir. 1971); Mecham v. Udall, 369 F.2d 1 (10th Cir. 1966). There is no dispute that the withdrawal order operated upon public lands.
In Mecham v. Udall a withdrawal that was in effect for 36 years was held to be temporary. The withdrawal in that case involved oil shale lands. The court stated:
We cannot say that from the Government's viewpoint and considering its permanence compared to the life of man, and the significance of oil shale as a national resource, that this withdrawal has not been temporary. . . . The Pickett Act and the Executive Order both expressly provide for revocation of the withdrawal by either the President or by Congress. Thus appellants can seek a revocation by either if they feel the withdrawal has extended beyond what a temporary one should.
369 F.2d at 4. See also United States v. Consolidated Mines & Smelting Co., 455 F.2d at 444-45.
That the withdrawal of the pipeline corridor was for a public purpose can hardly be doubted. Cf. United States v. Alaska, 423 F.2d 764 (9th Cir. 1970) (). In the Alaska Native Claims Settlement Act the Congress recognized that the Secretary of Interior had the power to withdraw a pipeline corridor. 43 U.S.C. § 1616(c) states:
In the event that the Secretary withdraws a utility and transportation corridor across public lands in Alaska pursuant to his existing authority, the State, the Village Corporations and the Regional Corporations shall not be permitted to select lands from the area withdrawn.
(emphasis added)
In addition, the trans-Alaska Pipeline Authorization Act, which was passed after the withdrawal order, recognized that the "early development and delivery of oil and gas from Alaska's North Slope to domestic markets is in the national interest . . .." 43 U.S.C. § 1651(a).
In addition to the Pickett Act, Public Land Order 5150 cited the implied authority of the Executive to withdraw lands from the public domain to protect the national interest. At the time8 the order was issued the Executive clearly possessed such implied power. United States v. Midwest Oil Co., 236 U.S. 459, 35 S.Ct. 309, 59 L.Ed. 673 (1915); Mason v. United States, 260 U.S. 545, 43 S.Ct. 200, 67 L.Ed. 396 (1923); Grisar v. McDowell, 6 Wall. 363, 73 U.S. 363, 18 L.Ed. 863 (1867); United States v. Consolidated Mines & Smelting Co., 455 F.2d 432, 442-43 (9th Cir. 1971); Portland General Electric v. Kleppe, 441 F.Supp. 859 (D.Wyo.1977); Brennan v. Udall, 251 F.Supp. 12 (D.Colo.1966.)
Despite the strong authority for the Executive power to withdraw public lands for important national purposes such as the pipeline corridor,9 the plaintiff contends that the order does not apply to it. However, the order on its face applies to "Native groups." The plaintiff's argument is two-fold. First, plaintiff contends that it possesses valid existing rights which are not and cannot be disturbed by the order. Second, plaintiff contends that Native groups have rights to select land within the pipeline corridor that village and regional corporations do not have by virtue of 43 U.S.C. § 1616(c).
There is no dispute that the plaintiff did not select the land until after PLO 5150 was issued. The plaintiff's rights in any particular parcel of land did not vest until it filed its land selections. This is much like the well-established principle in mining law that a claim located on land which is not open to appropriation confers no rights on the locator. United States v. Consolidated Mines & Smelting, 455 F.2d 432 (9th Cir. 1971); Portland General Electric Co. v. Kleppe, 441 F.Supp. 859, 862-63 (D.Wyo.1977). After the Secretary promulgated the regulations on Native group selections, the plaintiff had rights to make land selections, but had acquired no valid existing rights in the particular land eventually selected. The plaintiff attempts to establish valid existing rights by referring to prior use and occupancy by the Natives. Unlike other acts, such as the Alaska Native Allotment Act,10 the selection rights under ANCSA have no direct relationship to land used or occupied by the Natives. On the contrary, the Act extinguished aboriginal...
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