City of Angoon v. Hodel

No. A83-234 CIV (D. Alaska October 17, 1985)

The court holds that two sections of the Alaska National Interest Lands Conservation Act (ANILCA) prohibiting timber harvesting and providing for continued subsistence uses within national monuments do not apply to native inholdings in the Admiralty Island National Monument, and ANILCA's subsistence evaluation provisions are not triggered by the issuance of Federal Water Pollution Control Act (FWPCA) permits by the Environmental Protection Agency (EPA) and the Corps of Engineers. The court first rules that ANILCA § 503(d), which prohibits timber harvesting within national monuments, applies only to public lands and not private inholdings. The court rejects plaintiffs' argument that Congress granted the land within Admiralty Island National Monument to Shee Atika, a native corporation, only for the purpose of later exchanging it for other timber land outside the monument and thus intended § 503(d) to apply. Although plaintiffs' argument is supported by statutory language demonstrating that in some instances Congress intended that regulations apply to both public and private lands within a conservation system unit, § 506(c)(1), which conveys the land to Shee Atika, purports to convey the entire surface estate to the corporation. The court holds that § 506(c)(1) grants the lands in question to the corporation free and clear, although Congress may have hoped that an exchange could take place, and that the grant does not prohibit timber harvesting. The language of § 503(d) itself is ambiguous, but its legislative history suggests that it applies to public lands only.

The court next holds that one of the plaintiffs, a native village on Admiralty Island, does not have rights to use Shee Atika's lands for subsistence purposes. The court rules that § 506(a)(2), which provides for the continuation of subsistence opportunities by Admiralty Island residents, applies only to public lands. Although the section allows for continued uses "consistent with Title VIII of this Act," Title VIII places restrictions on public lands only.

The court holdsthat the requirements of ANILCA § 810, which requires that a federal agency prepare an evaluation of the effects on subsistence of uses of public lands, are not triggered by the actions of several federal agencies in connection with Shee Atika's logging operations. The court first holds that EPA's issuance of an FWPCA § 402 discharge permit and the Corps of Engineers' issuance of an FWPCA § 404 permit for the corporation's log transfer facility do not trigger ANILCA § 810. Section 810 requires that there be some action that affects public land, and Shee Atika's lands are private. Plaintiffs' claim that the agencies' determinations involved the use of public land in the form of a navigational servitude fails since title to the servitude must belong to the United States for a servitude to be public land. For the same reasons, the court holds that a loan by the Bureau of Indian Affairs (BIA) to Shee Atika allowing the timber harvesting operation to proceed does not trigger § 810. The court rules that a § 810 evaluation is required only if the federal agency determining whether to permit a use of public lands has primary jurisdiction over those lands. Although Shee Atika's logging operations may have a spillover effect on adjacent public lands, neither EPA, the Corps, nor the BIA has primary jurisdiction over the corporation's lands. The court also rules that a federal agency's failure to exercise authority does not constitute a determination within the meaning of § 810, rejecting plaintiffs' claim that the Forest Service's failure to act pursuant to ANILCA § 503(c) and § 22(k) of the Alaska Native Claims Settlement Act required a § 810 evaluation. The court holds that the Secretary of the Interior was not required to conduct an evaluation prior to transferring the lands to the corporation since the lands are not public lands. For the same reason, the court holds that the Secretary is not allowed to grant access under ANILCA § 811 for subsistence uses to be conducted on Shee Atika's private lands. Finally, the court holds that the federal government has not breached a trust responsibility to the native village plaintiff. Although there is some judicial authority for a trust responsibility in the subsistence context, such a duty is limited to the statutory mandate, and the federal government has not violated ANILCA's subsistence provisions.

Counsel for Plaintiff
Lewis F. Gordon
Baily & Mason
1130 W. 6th Ave., Anchorage AK 99501
(907) 276-4331

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

Jonathan Tillinghast
Birch, Horton, Bittner, Pestinger & Anderson
One Sealaska Plaza, Ste. 301, Juneau AK 99801
(907) 586-2890

[16 ELR 20776]

von der Heydt, J.:

Memorandum and Order on Subsistence and Trust Responsibility Issues

THIS CAUSE comes before the court on the motions and briefing of the parties on the "subsistence" issues involved in this litigation. Specifically, this memorandum addresses all of plaintiffs' claims arising from Sections 503(c), 503(d), 506(a)(2), 506(c)(1), 810 and 811 of the Alaska National Interest Lands Conservation Act (ANILCA), Pub. L. No. 96-487, 94 Stat. 2371 (1980). Also addressed in this memorandum are plaintiffs' claims relating to an alleged federal trust responsibility growing out of Title VII of ANILCA.

Today the court issues a separate memorandum and order directed to claims arising out of § 22(k) of ANCSA. The remaining issues in plaintiffs' consolidated complaint, filed April 29, 1985, shall be addressed in a subsequent memorandum and order.¹

This action arises out of Shee Atika, Inc.'s selection, confirmed by Congress, of certain lands on Admiralty Island. Shee Atika is the native village corporation, established under the Alaska Native Claims Settlement Act, for those Natives living in Sitka. Shee Atika's land selection is comprised of approximately 23,000 acres on the northwest section of the island. In order to maximize the amount of harvestable timber, the selection extends over several creek drainages and includes lands in the vicinity of Cube Cove, Peanut Lake, Lake Kathleen, Lake Florence, and Ward Creek (hereinafter Cube Cove lands). See ANILCA § 506(c).

At the same time that Congress conveyed the Cube Cove lands to Shee Atika, it also established Admiralty Island National Monument and Wilderness. See ANILCA §§ 503(b) and 703(a)(1). This Wilderness encompasses all of Admiralty Island, with the exception of some lands on the north end of the island around Mansfield Peninsula, the Shee Atika lands, and some lands surrounding the Greens Creek Mineral Deposit.² Further, assuming Shee Atika's position in this litigation is correct, its inholding would be the only lands within the Monument subject to timbering.³ Shee Atika plans to harvest approximately 20,000 acres of their Admiralty Island timberlands and build a log transfer facility (LTF) at Cube Cove. Because of the configuration of the Cube Cove lands, their harvest could affect the widerness character of a large surrounding area of public land as well, perhaps as much as 80,000 additional acres.

Plaintiff City of Angoon, a native village located on Admiralty Island, alleges that this harvest will interfere with the subsistence hunting of its citizens. Plaintiff Sierra Club seeks to preserve the entire island as an undisturbed wilderness. For these reasons, plaintiffs are challenging the conveyance of the Cube Cove lands to Shee Atika and the validity of the government permits associated with harvesting.⁴

I. The Exchange Argument

Plaintiffs' major contention is that Congress, in granting the Cube Cove lands to Shee Atika, intended that the lands be used for exchange purposes only. Accordingly, they argue that Congress intended the timber harvesting prohibition in ANILCA § 503(d) to apply to the Cube Cove lands. As stated in their briefs:

In sum, while Congress conveyed the inholding to Shee Atika, Inc., it did so with the intent that it would be exchanged for other timber lands outside the Monument Wilderness, just as had been done by the other Native Corporation that earlier claimed the same land. Pending an exchange, however, Congress ensured that the inholding would not threaten the surrounding National Monument Wilderness or Angoon's traditional subsistence culture.

Section 503(d) states:

Within the Monuments, the Secretary shall not permit the sale of [sic] harvesting of timber: Provided, That nothing in this subsection shall prevent the Secretary from taking measures as may be necessary in the control of fire, insects, and disease.

The plaintiffs argue that "within the Monuments" means within the boundaries of the Monuments; defendants counter that the prohibition only applies to public land within the Monuments.⁵

A number of arguments support plaintiffs' position. First, in the same section, when Congress intended a provision to apply solely to public lands, it specifically so stated. See ANILCA § 503(e); id. § 503(f)(2)(a). The absence of a comparable limitation in § 503(d) is evidence that Congress intended the provision to apply to both public and private lands.⁶ Second, Congress placed similar use restrictions on Kootznoowoo, Ind. lands within the boundaries of the Monument. See § 506(a)(3)(C). That Congress placed restrictions on Kootznoowoo lands indicates an intent to preserve the wilderness nature of the island to the greatest extent possible.⁷ Third, in § 506(d) Congress created a continuing authorization to reimburse Shee Atika for part and future expenses incurred in the exchange process. This again indicates that an off-island exchange was within the contemplation of Congress. Fourth, plaintiffs' position is supported by § 103(c). This section states that Native Corporation lands "shall [not] be subject to the regulations applicable solely to public lands within [a conservation system] unit." (emphasis added). This language demonstrates that, at least in some instances, Congress intended regulations to apply to both private and public lands within a unit. Otherwise, the distinction created in this subsection would not be necessary. Finally, plaintiffs' case is aided by the rule that ambiguities in the subsistence provisions of ANILCA must be construed in favor of subsistence. E.g., People of the Village of Gambell v. Clark, 746 F.2d 572, 581 (9th Cir. 1984). See also Southeast Alaska Conservation Council v. Watson (SEACC III), 697 F.2d 1305, 1309 [13 ELR 20233] (9th Cir. 1983) (requiring ANILCA to be interpreted in light of its underlying protective purposes).

Section 506(c)(1), however, purports to convey the entire surface estate of the Cube Cove lands to Shee Atika. The court finds it unlikely that Congress would, in one section, convey this estate of Shee Atika "[i]n satisfaction of the rights of the Natives Of Sitka" under ANCSA, and then in a different section retain the primary beneficial use of that estate without referring to that restriction in the grant. In the parallel land grant to Kootznoowoo in § 506(a)(3), Congress used specific language to reserve timber rights. See § 506(a)(3)(c)(i). The presence of a logging restriction in § 506(a)(3) casts doubt on plaintiffs' interpretation of § 503(d) for an additional reason as well. If plaintiffs' version of that section were correct, there would be no reason to place a duplicate restriction in § 506. As noted by plaintiffs in their briefs, it is a common rule of statutory construction that, if possible, a statute must be construed to give [16 ELR 20777] meaning to every section, so that no section is rendered surplusage.

Based on the above, the court finds that the language of § 503(d) is ambiguous, and accordingly it turns to legislative history to assist with interpretation.

Initially, the court finds that legislative history supports the presumption, in the absence of clear evidence to the contrary, that placement of Native Corporation land within the boundaries of a conservation system unit was not intended to affect the rights of corporations to use that land. See 126 Cong. Rec. 11194 (daily ed. Aug 19, 1980) (statements of Sen. Stevens & Sen. Jackson); 125 Cong. Rec. H2699 (daily ed. May 4, 1979); id. at H3239-49 (daily ed. May 15, 1979) (statements of Cong. Sieberling).

The court has closely reexamined ANILCA's legislative history. Simply stated, it has found no credible evidence in that history supportive of plaintiffs' position. The evidence all points to the opposite: that the Cube Cove lands were conveyed to Shee Atika for its use and enjoyment, and not for exchange purposes only. This is not to say that Congress did not hope or expect that an exchange would occur. Congress's clear desire was that Shee Atika exchange its lands for off-island lands. However, Congress never intended to force Shee Atika into an exchange that was not voluntary on both sides.

The starting point for an analysis of ANILCA's legislative history is a substitute version of H.R. 39 reported by the Senate Energy Natural Resources Committee to the Senate on November 14, 1979.⁸ The Act as passed, i.e., the Tsongas Substitute (a.k.a. Amendment 1961) was a revision of that bill and built on its structure. See e.g., 126 Cong. Rec. S11116 (daily ed. Aug. 19, 1980) (statement by Sen. Tsongas); id. at S11189. Furthermore, it is in the Senate Committee bill that § 506(c), the Shee Atika land conveyance, first appeared in its present form. See § 508(c), reprinted in S. Rep. No. 96-413, 96th Cong., 1st Sess. 25 (1979).

All sides agree that the Cube Cove land conveyance, as reported by the Senate Energy Committee, does not require Shee Atika to exchange its grant for lands off Admiralty Island. See id. at 214-15, 404-05; see also Senate Energy and Natural Resources Committee Markup Session on S. 9, October 29, 1979 at 516-47 (Appendix D, attached to Docket #121 A83-234) (supporting view that any exchange was to be voluntary).⁹ Plaintiffs' theory is that the Tsongas substitute, through modifications to § 503(d) to include Admiralty Island and the addition of the subsistence protections in § 506(a)(2), intended to modify the grant in § 506(c) to prohibit harvest of timber. In support of this view, plaintiffs point to the statements of several Senators that seem to indicate that all of Admiralty Island was to be preserved as a wilderness. See, e.g., 126 Cong. Rec. S11119 (Aug. 18, 1980) (statement of Sen. Jackson).

There are a number of reasons why this version of legislative history is inaccurate. First, the Tsongas substitute was a compromise between the more development-oriented Senate version of H.R. 39 and the more protectionist-oriented House version of that bill. It is unlikely that a compromise between those two bills would, in effect, mandate that Shee Atika exchange its lands through the imposition of a timbering prohibition when both Houses previously had in their separate versions of the bill made any future land exchange voluntary.

Second, any reference to protecting "all" of Admiralty Island most likely refers to the Senate's accession to the House's version of the Act that included both the east and west halves of the island in the Wilderness. The prior Senate bill had only designated the eastern half of Admiralty Island as wilderness. See, e.g., 126 Cong. Rec. S11117 (Aug. 18, 1980); id. S11192 (Aug. 19, 1980).

Third, in several instances Senators discussing the Tsongas substitute specifically noted that an exception to the wilderness had been created for Shee Atika. See id. S11125 (Aug. 18, 1980) (statement of Sen. Roth) (stating the bill contains "exclusions for minerals and native needs); id. S11137 (submission of Sen. Gravel) (compromise "retains Shee Atika land selections on northwest side of Admiralty Id.); see also id. S11124 (statement of Sen. Cranston) ("The compromise, however, does not protect in entirety the Admiralty Island National Monument"). The House debate on the Tsongas substitute similarly indicates that the lands were not encumbered by § 503(d). See id. H10550 (Nov. 12, 1980). This passage's reference to ANCSA § 22(k) would be nonsensical unless timbering were allowed on the Cube Cove lands.

Fourth, the Senators attempted, during debate, to create a legislative history for the Tsongas substitute by listing significant changes from the Senate Committee version of the bill. During these discussions no mention is made of the Shee Atika lands. See id. S11117 (Aug. 18, 1980); id. S11189, 11192 (Aug. 19, 1980). Both these lists of changes mention the Kootznoowoo exchange as an amendment, however. Had there been a change regarding the Shee Atika exchange, it almost certainly would have been listed as well. The absence of any such mention strongly suggests that the Senate intended to retain the interpretation of § 506(c) contained in the Committee Report.

Furthermore, for Congress to grant the Cube Cove lands to Shee Atika for exchange purposes only would be unusual. It is not credible to believe that Congress could intend to deprive Shee Atika of any economic use of its lands, thereby depriving Shee Atika of much of its bargaining power and forcing an exchange, without making some mention of that intent in the legislative history. As a point of comparison, when the earlier House version of H.R. 39 attempted to arrange a voluntary land exchange, the bill contained specific statutory exchange language and specific referral was made to the exchange provision in the House Committee print.¹⁰

Finally, the legislative history of § 503(d) itself suggests that Congress intended it to apply solely to public Monument lands. The section, as first drafted, applied only to the Misty Fjords National Monument. See § 505(c), H.R. 39, as reported in S. Rep. No. 96-413, 96th Cong., 1st Sess. 20 (1979). The section did not apply to Admiralty Island for the reason that the bill did not create a Monument on Admiralty Island. What the bill did create was a Misty Fjords Monument comprised of more lands than the Misty Fjords Wilderness. Compare id. § 505(a) with id. § 703(a)(5). Given that the logging prohibition implicit in § 703(a) of that bill prevented logging in the Wilderness portion of the monument, the purpose of § 505(c) must have been to prevent logging in the remainder of the Monument (which was not declared wilderness to allow mining to occur).¹¹ The Tsongas Substitute for the first time create a National Forest Monument on Admiralty Island. Like the Misty Fjords National Monument in the Senate Committee version of H.R. 39, the Admiralty Island Monument also contained lands not contained in the wilderness. The extension of § 503(d) to Admiralty Island National Monument was thus intended to prevent logging on those Monument lands not in the Wilderness, i.e., the Greens Creek mining district,

The Senate Committee Report's comments on § 503(d) also show that the section was intended to apply solely to public lands. See S. Rep. No. 96-413, 96th Cong., 1st Sess. 209 (1979). In an apparent reference to the effects of § 503(d) (§ 505(c) in Senate Committee version of H.R. 39), the report states that the monument "is closed to the sale or harvest or timber under Forest Service timber sale program." As the timber sale program only applies to public lands, it is reasonable to conclude that § 503(d), as drafted, was intended to apply only to those lands. Given that the language of § 503(d) was not changed when the Tsongas substitute expanded it to cover Admiralty Island Monument, it is improbable that Congress intended to broaden its scope to include non-public lands.

In conclusion, the court holds:

(1) That ANILCA §§ 503(c) and 503(d) do not apply to private lands within a monument and therefore do not apply to Shee Atika's Cube Cove lands; and

(2) That Congress did not intend the conveyance in § 506(c) to be for exchange purposes only. While Congress hoped that an exchange would occur, it intended that any such exchange be voluntary on both sides. Therefore, § 506(c) grants Shee Atika full [16 ELR 20778] economic and beneficial use of its lands, subject of course to the valid existing rights and easements referred to in that section.

II. Section 506(a)(2).

Section 506(a)(2) of ANILCA states "Nothing in this section shall affect the continuation of the opportunity for subsistence uses by residents of Admiralty Island, consistent with Title VIII of this Act." Plaintiffs interpret the language "this section" to refer to § 506 as a whole, including the § 506(c) conveyance of the Cube Cove lands to Shee Atika. They thus claim that this section continues to grant certain subsistence rights to the Cube Cove lands to the villagers of Angoon.

Section 506(a) was not included in ANILCA until the Tsongas substitute. Therefore, little legislative history exists concerning this section.¹² Plaintiffs' theory, however, depends on an interpretation of ANILCA similar to that proposed for § 503(d): namely, that Congress intended to restrict Shee Atika's uses of the Cube Cove lands in order to further an exchange. For the reasons stated previously, the court finds that Congress did not intend to compel any exchange.

The court further finds that the phrase "consistent with Title VIII of this Act" indicates that Congress intended the section to apply solely to public lands, for the reason that Title VIII only places restrictions on such lands. See,e.g., ANILCA § 801(4). Since Shee Atika's lands are not Monument lands or public lands, see ANILCA § 102(3)(C), § 506(a)(2) does not place any restriction on their use.

This conclusion is supported by the fact that § 506(a)(2) is only intended to apply to subsection § 506(a), and not all of § 506. This limited scope of the section is shown (1) by its placement between two other sections, 506(a)(1) and 506(a)(3) that are concerned solely with the Kootznoowoo exchange, and (2) by the fact that § 506(a) was introduced in the Tsongas substitute as a discrete unit. Sections 506(a), (b), and (c) are each designed to stand as independent units. It is thus unlikely that Congress intended only the one subsection within § 506, § 506(a)(2), to apply outside the subsection within which it is found. That § 506(a) was introduced at a later date than 506(c) is additional evidence that Congress did not intend the two sections to modify one another.

The court therefore holds that § 506(a)(2) does not apply to Shee Atika's holdings on Admiralty Island.

III. Section 810

Plaintiffs argue that a § 810 subsistence evaluation was required for each of the following government actions:

(1) the Corps of Engineers permit required for the log transfer facility under § 404 of the Clean Water Act;

(2) the Environmental Protection Agency permit required for the LTF under § 402 of the Clean Water Act;

(3) the Bureau of Indian Affairs loan to Shee Atika that allowed the timber harvesting operation to proceed;

(4) the Forest Service's failure to act pursuant to § 503(c) and ANCSA § 22(k); and

(5) the Secretary's transfer of the Cube Cove lands to Shee Atika pursuant to § 506(c).

Section 810(a) of ANILCA requires that:

In determining whether to withdraw, reserve, lease or otherwise permit the use, occupancy or disposition of public lands under any provision of law authorizing such actions, the head of the Federal agency having primary jurisdiction over such lands . . . shall evaluate [the effect of the action on subsistence. . . .]

It is thus clear that, before a subsistence evaluation is required under § 810, there must be some action that affects public land. Public land is defined in § 102(1)-(3). Given that Shee Atika's lands on Admiralty Island are not public lands, a use or disposition of those lands is not sufficient to trigger § 810's requirements.

Plaintiffs argue, first, that the EPA's and Corps' granting of permits under Sections 402 and 404 of the Clean Water Act required a § 810 subsistence evaluation because these determinations "used" public "land," which § 102(1) defines to include interests in land. The interest in land allegedly used was a navigational servitude. In order for the servitude to be public land, title thereto must belong to the United States. See § 102(2) ("the term 'Federal land' means lands the title to which is in the United States. . . ."). Since the United States does not hold title to the navigational servitude, the servitude is not public land within the meaning of ANILCA. See United States v. Virginia Electric and Power Co., 365 U.S. 624, 627-28 (1961) (holding servitude is, in fact,"power of government to control and regulate navigable waters in the interest of commerce"). Similarly, the BIA loan, being for the development of Shee Atika's private lands, does not use or dispose of public lands.

Plaintiffs counter that public lands are nevertheless being used for the reason that logging on Shee Atika's private lands will have spillover effects on public lands. For the purpose of this motion, the court assumes that such spillover effects will occur. Nevertheless, the court finds that no § 810 subsistence evaluation is needed. Section 810 only applies to a determination of whether to permit a use of public lands by "the head of the Federal agency having primary jurisdiction over such lands." Thus, § 810 presupposes both a "use" of federal land and a determination of whether to allow the use by the agency head having primary jurisdiction over such land. By implication, the use determination triggering § 810 must be one concerning use of land within the determining agency's jurisdiction. Stated more simply, before § 810 is triggered, there must be (1) a land use determination (2) by an agency having primary jurisdiction over some land (3) regarding a use of the determining agency's land. Conversely, a decision by an agency that does not initially affect land within its primary jurisdiction does not trigger a § 810 subsistence review. Thus, the spillover effects alleged here, without an allegation of use of land within the determining agency's jurisdiction, do not require a § 810 evaluation.

The Forest Service's alleged failure to act pursuant to ANILCA § 503(c) and ANCSA § 22(k) also does not require a § 810 evaluation. The language of § 810 presupposes some land use decision resulting from a "determination." The failure to exercise authority is not a determination within the meaning of ANILCA § 810. See Alaska v. Andrews, 591 F.2d 537 (9th Cir. 1979).

Finally, the Secretary was not required to perform a § 810 evaluation prior to transferring the Cube Cove lands to Shee Atika pursuant to § 506(c). The Cube Cove lands simply are not public lands within the meaning of ANILCA § 810(a). See ANILCA § 102(3)(B). See also id. § 810(c).

IV. Section 811

Plaintiffs argue that Shee Atika's timber harvest is somehow affected by § 811. Section 811 only applies to access to subsistence resources over public lands. See, e.g., § 802, § 811(b). It does not permit the Secretary to control access over private lands. Shee Atika's lands being private, § 811 does not apply.

V. Trust Responsibility

Plaintiffs claim that the conveyance, the permits for timber operations, and the timber operations themselves all violate a federal trust responsibility owed to Angoon. The alleged breach of trust is the basis for Angoon's Prayer for a damage award against the federal defendants.

Plaintiffs concede that in this context the federal government does not owe Natives a generalized fiduciary duty that exists in the abstract. E.g., Inupiat Community of the Arctic Slope v. United States, 548 F. Supp. 182, 188 (D. Alaska 1982), aff'd, 746 F.2d 570 (9th Cir. 1984). Rather, any trust responsibility must be rooted in a statute, treaty, or executive order. Plaintiffs assert that Title VIII and the related § 506(a)(2) of ANILCA provide the basis for such a responsibility, because the Ninth Circuit Court of Appeals has characterized Title VIII as "Indian legislation." People of Village of Gambell v. Clark, supra, 746 F.2d at 581.

In Gambell the Court of Appeals merely held that Title VIII is Indian legislation for the purpose of statutory construction. It does not follow that it creates a fiduciary relationship between the federal government and Native beneficiaries. A broad fiduciary relationship may be found where a statute establishes "elaborate control" over Native property, or where it expressly mandates in broad terms that federal agents act for the benefit of Natives. United States v. Mitchell, 463 U.S. 206, 224-26 (1983) (Mitchell II). A more limited trust responsibility arises in connection with statutes governing Native property but lacking the above characteristics. United States v. Mitchell, 445 U.S. 535, 543-47 (1980) (Mitchell I); see also Aguilar v. United States, 474 F. Supp. 840 (D. Alaska 1979). Title VIII, however, governs public lands, not Native lands. Moreover, while the title is aimed at protection of Native interests and therefore is "Indian legislation" for the purpose of statutory construction, it [16 ELR 20779] differs from the statutes interpreted in Gambell, Aguilar, and the Mitchell cases in that it has a broader thrust: It also aims to protect non-Native subsistence interests. Sec. 801(1). There is no precedent binding on this court that supports a finding that Title VIII creates a fiduciary relationship between the United States and the people of Angoon.

There is authority outside this district that does support a finding of a trust responsibility of some nature in the context of a statute, such as Title VIII, that protects subsistence. See People of Togiak v. United States, 470 F. Supp. 423, 428 (D.D.C. 1979); Pyramid Lake Paiute Tribe of Indians v. Morton, 354 F. Supp. 252, 255-58 (D.D.C. 1973), rev'd in part on other grounds, 499 F.2d 1095 [4 ELR 20660] (D.C. Cir. 1974). But any such responsibility would be limited to a duty to obey the dictates of Title VIII.¹³ In an analogous case involving environmental statutes protecting resources used by Natives for subsistence, the Court of Appeals for the District of Columbia Circuit found no independent substantive duties arising out of federal trust responsibility:

[T]he substantive interests of the Natives and of their native environment are congruent. The protection given by the Secretary to one, as we have held, merges with the protection he owes to the other.

North Slope Borough v. Andrus, 642 F.2d 589, 612 [10 ELR 20832] (D.C. Cir. 1980). Since this court holds that the federal defendants have not violated Title VIII, it follows that they have violated no trust responsibility growing out of that title.

Accordingly, IT IS ORDERED:

(1) THAT Shee Atika's motion for summary judgment on subsistence counts, dated Oct. 31, 1983, is granted (see Docket #81, A84-126 CIV);

(2) THAT Angoon's cross-motion for summary judgment on ANILCA § 811(a) is denied;

(3) THAT Sierra Club's cross-motion for summary judgment on ANILCA § 810 is denied;

(4) THAT plaintiffs' claims pursuant to ANILCA §§ 503(c), 503(d), 506(a)(2), 506(c)(1), 810, and 811 are dismissed;

(5) THAT plaintiffs' claims pursuant to the federal trust responsibility to Natives are dismissed;

(6) THAT Shee Atika's motion for partial summary judgment, dated Sept. 21, 1983 (see Docket #8, A83-234) is granted in part as follows:

(a) The court declares that the lands conveyed to Shee Atika by the Secretary of Interior on December 9, 1981, pursuant to Section 506(c) of ANILCA, are private lands, not subject to any of the subsistence provisions of ANILCA; and

(b) The court declares that the lands conveyed to Shee Atika on December 9, 1981, pursuant to Section 506(c) of ANILCA, are "Settlement Act lands" that may be developed commercially by plaintiff, and that such lands need not be managed as the Admiralty Island National Monument lands are managed; and

(7) THAT Shee Atika's motion for decision on subsistence counts, in light of this order, is denied as moot.

DATED at Anchorage, Alaska, this 17th day of October 1985.

1. The court finds plaintiffs have waived those issues raised in prior complaints not included in the consolidated complaint.

2. While the Admiralty Island National Monument contains 921,000 acres, the Wilderness only contains 900,000 acres. Compare ANILCA § 503(b) with § 703(a)(1). The two sections apparently refer to the same map. See Ex. 2, attached to Docket Entry #111. This map establishes different boundaries for the two near Greens Creek, at the north end of Monument. The 21,000 acre difference is further explained by legislative history. See 126 Cong. Rec. S11125 (Aug. 18, 1980) (statement of Sen. Roth); id. S11137 (material submitted by Sen. Gravel); Id. S11194-95 (Aug. 19, 1980) (statement of Sen. Jackson).

3. The Greens Creek lands cannot be logged. ANILCA § 503(d).

4. For additional background information, see City of Angoon v. Marsh, 749 F.2d 1413 (9th Cir. 1984).

5. Initially, the court finds that it is not bound by the prior Ninth Circuit opinion in this action in that that opinion is not the law of the case. See Golden State Transit Corp. v. City of Los Angeles, 754 F.2d 830, 832 n.3 (9th Cir.), cert. granted, 105 S. Ct. 3475 (1985). Accordingly, this court considers this argument de novo.

6. Plaintiffs apparently concede in their briefs that the Cube Cove lands are private lands. See also City of Angoon v. Marsh, 749 F.2d at 1416; ANILCA §§ 102(3)(B), 103(c).

7. Conversely, however, the absence of a similar restriction in § 506(c) may indicate that Congress did not intend a similar restriction be placed on the Cube Cove lands.

8. This court discussed the Act's legislative history in greater detail in its earlier order issuing a Preliminary Injunction. That discussion is hereby incorporated into this memorandum by reference. See Memorandum and Order of May 15, 1984, A84-126, at 7-11.

9. Furthermore, none of the previous House bills had mandatory exchange provisions. See e.g., H.R. 39, § 606(b)(4) as reported by the House Committee on Interior and Insular Affairs, reprinted in H. Rep. No. 96-97, Part I, 96th Cong. 1st Sess. 37 (1979); H. Rep. No. 96-97, Part I, 96th Cong., 1st Sess. 225, 275-276 (1979); H. Rep. No. 96-97, Part II, 96th Cong., 1st Sess. 35 (1979).

10. As further evidence of Congress's intent that any land exchange be voluntary, see § 506(a)(8)(A). It is unlikely that Congress would have made the Kootznoowoo exchange voluntary while making the Shee Atika exchange mandatory.

11. See, e.g., S. Rep. No. 96-413, 96th Cong., 1st Sess. 403 (1979). That § 703 prohibits logging within a wilderness is shown by the fact that Congress did not feel it necessary to explicitly prohibit logging in any other National Forest Wilderness.

12. What little legislative history there is makes no mention of any restriction on the Cube Cove lands. See 126 Cong. Rec. S11117 (Aug. 18, 1980); Id. at S11137; Id. at S11192 (Aug. 19, 1980).

13. Such a fiduciary duty coextensive with the terms of the statute would not be superfluous, for it could give rise to an action for damages where one might not otherwise exist. Mitchell II, supra.