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Angoon, City of v. Hodel

Citation: 17 ELR 20180
No. Nos. 85-4413 et al., 803 F.2d 1016/25 ERC 1235/(9th Cir., 10/31/1986) District court decisions aff'd in part, rev'd in part per curiam

The court holds that the district court erred in invalidating an Alaska native corporation's Federal Water Pollution Control Act (FWPCA) § 404 permit for its log transfer facility because an environmental impact statement (EIS) did not discuss an alternative by which the corporation would exchange its land holdings on Admiralty Island for land elsewhere, but upholds the lower court's rulings rejecting plaintiffs' claims under the Alaska National Interest Lands Conservation Act (ANILCA) and the Alaska Native Claims Settlement Act (ANCSA). The court first holds that the district court erred in considering commercial timber harvesting to be the purpose of the § 404 permit, rather than accepting the Corps of Engineers' determination that the permit's purpose was to provide Shee Atika, the corporation, with a safe, cost-effective means of transporting its timber to market. Although every application for a § 404 permit does have both an applicant's purpose and a public purpose, the EIS must consider alternatives which satisfy the purpose for which the applicant submitted its proposal. The Corps' characterization of the purpose was already broader than the formulation requested by Shee Atika; the district court's formulation results in a broad social interest becoming the exclusive purpose. The court next holds that, regardless of how the permit's purpose is characterized, the land exchange alternative was too remote and speculative to require the Corps to include a detailed discussion of it in the EIS. Congress explicitly conveyed the Admiralty Island land to Shee Atika, and any exchange would require both congressional approval and acceptance by the corporation. Not only have plaintiffs not offered any reasonably specific counterproposal, but the federal government's attempts to negotiate an exchange with Shee Atika have not met with success.

The court next holds that the conveyance in ANILCA § 506(c)(1), granting the land in question to Shee Atika and the subsurface estate to another native corporation, was not for purposes of exchange only. There is virtually no support in ANILCA's legislative history for plaintiffs' position; moreover, ANILCA § 1302(b) prohibits acquisition by the federal government of private lands located within the boundaries of any conservation system unit without the owner's consent. The court holds that ANILCA § 503(d), which prohibits timber harvesting within Admiralty Island National Monument, applies only to public lands within the monument, not to Shee Atika's private holdings. The court rules that ANILCA § 503(c), which directs the Secretary of Agriculture to manage and protect national forest monuments in Alaska, does not impose a duty on the Secretary to mitigate the effects of timber harvesting on Admiralty Island.

The court upholds as reasonable the Secretary of the Interior's interpretation that the time limitations in ANCSA § 22(k), which provides for timber export and management restrictions on private lands within the boundaries of a national forest in Alaska, run from ANCSA's date of enactment in 1971. It is true that § 22(k) is silent on this issue and other sections of ANCSA explicitly specify that a time period begins to run as of the statute's date of enactment, but this is insufficient to show that Congress intended the periods in § 22(k) to run from the date of an actual conveyance. The court rejects plaintiffs' arguments that the Secretary's interpretation should not be given much weight because the Department of the Interior has demonstrated inconsistency in its interpretation of the provision. Although the Department initially proposed regulations which would have measured the time periods in § 22(k) from the date of conveyance and its final regulation adopted the date of enactment measurement without explaining the change, the court only looks to inconsistency in final regulations.

The court holds that the government's actions in connection with Shee Atika's logging operations do not trigger ANILCA § 810, which requires that a federal agency prepare an evaluation of the effects on subsistence uses of public lands. None of the agencies involved has primary jurisdiction over the public lands used for subsistence, as required by § 810, and the agency that does have jurisdiction, the Department of Agriculture, has taken no action. In addition, other provisions of ANILCA suggest that § 810 does not apply to private lands, even if, as plaintiffs argue, activities on those lands may affect adjacent public lands. The court notes that a subsistence evaluation would probably be beneficial, but declines to read into the statute a requirement that an evaluation be done for actions concerning private lands. The court also holds that ANILCA § 506(a)(2), which provides for the continuation of subsistence uses by Admiralty Island residents after a conveyance to another native corporation, does not apply to the Shee Atika conveyance in § 506(c). Finally, the court holds that the provision in ANILCA § 811 requiring the Secretary of the Interior to ensure that subsistence users have reasonable access to subsistence resources on public lands does not require the Secretary to restrict Shee Atika's logging project and road construction.

[The district court decisions appear at 16 ELR 20775, 20779, and 20782. A related decision is published at 13 ELR 20849.]

Counsel for Appellants
F. Henry Habicht II, Ass't Attorney General
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2701

Jacquelyn R. Luke
Middleton, Timme & McKay
Suite 420, 601 W. 5th Ave., Anchorage AK 99501
(907) 276-3390

Counsel for Appellees
Durwood Zaelke
Sierra Club Legal Defense Fund, Inc.
330 Pennsylvania Ave. SE, Washington DC 20003
(202) 547-1141

Before Sneid, Kennedy and Wiggins, JJ.