City of Angoon v. Hodel

No. A83-234 CIV (D. Alaska November 27, 1985)

The court holds that plaintiffs have not exhausted their administrative remedies in their challenge to the Secretary of Agriculture's choice of easements pursuant to § 17(b) of the Alaska Native Claims Settlement Act (ANCSA) across lands selected by Shee Atika, an Alaskan native corporation, and that the environmental impact statement (EIS) prepared in connection with a Federal Water Pollution Control Act (FWPCA) § 404 permit for Shee Atika's log transfer facility did not adequately consider alternatives to the project. After initially noting that the provision in ANCSA § 17(b) for public easements across native land must be read in conjunction with the actual conveyance in § 506(c) of the Alaska National Interest Lands Conservation Act (ANILCA), the court holds that the task of selecting easements for public purposes across Shee Atika's land on Admiralty Island rested entirely with the Secretary of Agriculture. The Secretary of Agriculture is required to select easements in compliance with both ANCSA and ANILCA; however, the court holds, plaintiffs have not exhausted their administrative remedies and are therefore not entitled to judicial review. The court holds that review of the ministerial duty of the Secretary of the Interior to reserve the easements in properly before the court, and that the Secretary has properly performed this duty by incorporating each of the easements selected by the Secretary of Agriculture into the conveyance.

The court holds that the permits for Shee Atika's timber operations and the timber operations themselves do not violate the Property Clause of the United States Constitution. The Property Clause is not self-implementing and does not itself create rights or duties. Plaintiffs argue that they are alleging violations of statutes enacted pursuant to the Property Clause, but such violations would be violations of those statutes, not of the Property Clause. The court also holds that possible violations of plaintiffs' due process rights by the Secretary of the Interior in his procedures leading up to the conveyance were mooted by Congress' enactment of the Interior Appropriations Act of 1983. Section 315 of the Act explicitly confirms the conveyance to Shee Atika, including all easements and restrictions. If the Secretary violated plaintiffs' due process rights, Shee Atika's lands remained public lands up until § 315 was enacted; however, even if this was the case, with the enactment of § 315 Congress used its plenary authority under the Property Clause to dispose of these public lands. In a note, the court observes that it does not believe that § 315 mooted challenges to the conveyance based on alleged statutory violations of ANILCA and ANCSA.

Turning to plaintiffs' allegations under the FWPCA, the court holds that plaintiffs have not shown that Shee Atika's timber operations violate the FWPCA's effluent standards for new pollution sources, since plaintiffs have not alleged any facts that would constitute violation of § 306. The court declines to rule on plaintiffs' claims that the timber operations violated § 402 of the FWPCA, but retains jurisdiction over the claims pending the resolution of an appeal concerning Shee Atika's discharge permit. The court next holds that the National Environmental Policy Act (NEPA) does not require that an EIS be prepared for the conveyance to Shee Atika. Section 910 of ANILCA expressly exempts conveyances to native corporations pursuant to ANCSA from NEPA's requirements. The court holds that NEPA likewise does not apply to Shee Atika's timber operations, since these activities are on private lands and therefore are not federal actions.

The court holds, however, that the Corps of Engineers' issuance of a FWPCA § 404 permit to Shee Atika for its log transfer facility did not comply with NEPA. The court holds that the EIS prepared in connection with the log transfer facility is inadequate because it did not consider the possibility that Shee Atika could exchange its lands for other federal timberlands not on Admiralty Island as an alternative to building the log transfer facility. The court rejects defendants' argument that the exchange alternative could not be considered because the possibility of an exchange is remote and speculative. Although Shee Atika's consent is required for any exchange to take place, the possibility that the corporation might refuse future proposals does not render an otherwise reasonable alternative speculative. The facts that congressional approval might be required, that the alternative involves actions by federal agencies other than the Corps, and that there may be no comparable land in southeast Alaska available for exchange also do not make the alternative speculative. The court holds that it would not be improper for the Corps to deny a § 404 permit to Shee Atika on the basis that a fair off-island exchange would better serve the public interest, even if Shee Atika refused to consent to an offered exchange.

[A previous opinion on the FWPCA § 402 issue appears at 13 ELR 20849.]

Counsel are listed at 16 ELR 20775.

[16 ELR 20782]

von der Heydt, J.:

Memorandum and Order On Remaining Issues Raised In Consolidated Complaint

THIS CAUSE comes before the court on the motions and briefing of the parties directed to the following issues raised in the Consolidated Complaint dated April 29, 1985:

(1) alleged violations of § 17(b) of the Alaska Native Claims Settlement Act (ANCSA), Pub. L. No. 92-203, 85 Stat. 688 (1971);

(2) alleged violations of the Property Clause of the United States Constitution;

(3) alleged violations of the Due Process Clause of the United States Constitution;

(4) alleged violations of §§ 306, 402 and 404 of the Clean Water Act (CWA), Pub. L. No. 95-500, 86 Stat. 816 (1972);

(5) alleged violations of the National Environmental Policy Act (NEPA) §§ 101 and 102, Pub. L. No. 91-190, 83 Stat. 852 (1970).

Previous memoranda have addressed the subsistence, trust responsibility, and ANCSA § 22(k) issues raised by this litigation.

I. ANCSA Section 17(b)

All three counts of the consolidated complaint allege violations of ANCSA § 17(b); plaintiffs therefore assert that the conveyance, the permits for timber operations, and the timber operations themselves violate the section. Plaintiffs concede in their brief that in regard to the Shee Atika conveyance § 17(b) must be read in conjunction will § 506(c) of ANILCA. The relevant portions of these statutes are set out below.

Section 17(a)(1) of ANCSA established the Joint Federal-State Land Use Planning Commission for Alaska. Section 17(b)(1) required the Commission to

identify public easements across lands selected by Village Corporations and the Regional Corporations and at periodic points along the courses of major waterways which are reasonably necessary to guarantee international treaty obligations, a full right of public use and access for recreation, hunting, transportation, utilities, docks, and such other public uses as the Planning Commission determines to be important.

Section 17(b)(3) provided:

Prior to granting any patent under this Act to the Village Corporation and Regional Corporations, the Secretary shall consult with the State and the Planning Commission and shall reserve such public easements as he determines are necessary.

Pursuant to subsection (a)(10), as amended, the life of the Commission expired in 1979. Accordingly, Congress included in the ANILCA provision authorizing the Shee Atika conveyance an instruction as to how the § 17(b) easements were to be identified and protected:

In the instrument of conveyance provided for in paragraph (1), the Secretary of the Interior shall reserve such easements [16 ELR 20783] as are described in section 17(b)(1) of the Alaska Native Claims Settlement Act, as the Secretary of Agriculture may designate for public access to and utilization of the adjacent Federal lands.

ANILCA § 506(c)(2) (emphasis added). Finally, § 506(c)(1) described in the Cube Cove lands and provided that

the Secretary of the Interior . . . shall convey subject to valid existing rights and any easements designated by the Secretary of Agriculture, the surface estate in the . . . described lands on Admiralty Island to Shee Atika, Incorporated

(emphasis added).

Prior to ANILCA, the Secretary of the Interior had authority, pursuant to ANCSA § 17(b)(3), to make decisions regarding easements after consulting with the Commission and the State. It would have been possible for the Secretary to abuse his discretion in exercising this delegated authority. ANILCA altered the ANCSA procedure in several respects in connection with the Shee Atika conveyance. First, it transferred consideration of the matters listed in ANCSA § 17(b)(1) from the now-defunct Commission to the Secretary of Agriculture. Second it vested the Secretary of Agriculture with decision-making authority, rather than with the merely advisory role the Commission had occupied. Instead of evaluating § 17(b)(1) recommendations submitted by the Commission, the Secretary of the Interior was now given the purely ministerial duty of incorporating in the conveyance any easement designated by the Secretary of Agriculture. Moreover, the Secretary of the Interior did not retain independent authority under § 17(b)(3) to reserve easements in addition to those designated by the Secretary of Agriculture. ANILCA § 506(a)(1) mandated the conveyance that the Secretary of the Interior was to make, and subjected that conveyance to no easements other than those identified by the Secretary of Agriculture.¹ Of course, the Secretary of the Interior "can reserve only what Congress authorizes him to reserve." Leo Sheep Co. v. United States, 570 F.2d 881, 888 (10th Cir. 1977), rev'd on other grounds, 440 U.S. 668 (1979); accord, e.g., Burke v. Southern Pacific R.R., 234 U.S. 669, 699 (1914).

In short, the task of selecting easements for the Shee Atika conveyance rested entirely with the Secretary of Agriculture. No doubt the Secretary of Agriculture was obliged to select the easements in compliance with any applicable provisions of ANCSA and ANILCA, and it is conceivable that he failed to do so.² Plaintiffs' remedy for any such failure, however, was through an administrative appeal pursuant to 36 C.F.R. § 211.18 (formerly 36 C.F.R. § 211.19). Having failed to file such an administrative appeal, plaintiffs may not now challenge the selections of the Secretary of Agriculture.³

Because they have not exhausted their administrative remedies, plaintiffs cannot maintain any of their three causes of action under § 17(b) with respect to the Secretary of Agriculture. Moreover, since the Secretary of Agriculture did not select any easement inconsistent with the Clean Water Act permits for the log transfer facility, the § 17(b) portion of plaintiffs' second claim must fail as to all defendants.

Review of the ministerial duty of the Secretary of the Interior is properly before this court. The court has examined the uncontroverted evidence of the Secretary of Agriculture's selection and the Secretary of the Interior's conveyance. Each of the fourteen trail easements and seven site easements has been incorporated into the conveyance. Federal Defendants' Exhibit HH; Shee Atika Motion to Dismiss at A-3 to A-6, A-11 to A-12. Accordingly, all defendants are entitled to summary judgment on the § 17(b) claims. See Ybarra v. Reno Thunderbird Mobile Home Village, 723 F.2d 675, 677 (9th Cir. 1984).

II. Property Clause

Plaintiffs allege that the permits for timber operations and the timber operations themselves "violate" Article IV, Section 3, Clause 2 of the Constitution, which reads:

The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.

This clause is a grant of legislative authority. It does not create rights or duites that could be violated. In their briefs, plaintiffs explain that they allege violations of statutes enacted pursuant to the Property Clause. Any such violations are violations of those statutes, however; they are not violations of this Constitutional provision. Plaintiffs' allegations pursuant to the Property Clause fail to state a claim upon which relief can be granted.

III. Due Process Clause

The consolidated complaint alleges that the conveyance is invalid because the Secretary's procedures leading to its issuance violated plaintiffs' right to due process. Whatever the merits of this allegation as an original matter, it was mooted by § 315 of the Interior Appropriations Act of 1983, P.L. No. 97-394, 96 Stat. 1966, 1998 (Dec. 30, 1982), which provides:

The titles conveyed by and the easements and restrictions heretofore reserved and imposed by the Secretary of the Interior pursuant to section 506(c) of Public Law 96-487 are hereby confirmed in all respects: Provided, That nothing herein shall be deemed to amend the Alaska National Interest Lands Conservation Act or the Alaska Native Claims Settlement Act.

Congress has unlimited power under Article 4, Section 3, Clause 2 of the Constitution to dispose of public lands as it sees fit. United States v. City and County of San Francisco, 310 U.S. 16, 29-30 (1940); Kidd v. Dep't of Interior, Bureau of Land Management, 756 F.2d 1410, 1411-12 (9th Cir. 1985). If the conveyance was defective owing to due process violations by the Secretary of the Interior, then the Cube Cove lands remained public lands when § 315 was enacted and Congress used its plenary authority at that time to convey the lands to Shee Atika under the terms of the Secretary's conveyance.⁴ See Tameling v. United States Freehold and Emigration Co., 93 U.S. 644, 633 (1876) (confirmatory act "passes the title of the United States as effectually as if it contained in terms a grant de novo").

IV. Clean Water Act

The consolidated complaint alleges that the permits for timber operations and the timber operations themselves violate §§ 402 and 404 of the CWA. It also alleges that the timber operations themselves violate § 306 of the Act. Defendants urge dismissal of all of these claims.

Section 306 prohibits violations of effluent standards for new pollution sources. The single § 306 allegation in the consolidated complaint is wholly conclusory; the complaint simply states that "[t]he timber operations . . . violate . . . [section] 306 . . . of the CWA." No facts are alleged that would constitute such a violation, and none have been provided in subsequent briefing. This conclusory allegation fails to provide the fair notice of the nature of claim asserted that is required under F.R. Civ. P. 8(a)(2). See, e.g., Jones v. Community Redevelopment Agency of Los Angeles, 733 F.2d 646, 649 (9th Cir. 1984); Mountain View Pharmacy v. Abbott Laboratories, 630 F.2d 1383, 1386-87 (10th Cir. 1980).

The court declines to dismiss the remainder of plaintiffs' Clean Water Act claims at this time. The § 402 claims grow out of Shee Atika's failure to obtain a National Pollutant Discharge Elimination System (NPDES) permit for its log transfer operations. This court ordered Shee Atika to obtain such a permit on April 10, 1984 (Case No. A84-126). Shee Atika received its NPDES permit on June 3, 1985, but the permit is presently the subject of an appeal. See [16 ELR 20784] Status Report of Shee Atika filed October 25, 1985 (Docket Nos. 162 and 163). Accordingly, the court will retain jurisdiction over the § 402 claims. The § 404 claims are discussed below in conjunction with the related NEPA claims. See Part V, infra.

V. NEPA Sections 101 and 102

Initially, the court may quickly dispose of plaintiffs' claim that the Cube Cove conveyance violated NEPA because it was not preceded by an Environmental Impact Statement. Section 910 of ANILCA provides:

The National Environmental Policy Act of 1969 (83 Stat. 852) shall not be construed, in whole or in part, as requiring the preparation or submission of an environmental impact statement for withdrawals, conveyances, regulations, orders, easement determinations, or other actions which lead to the issuance of conveyances to Natives or Native Corporations, pursuant to the Alaska Native Claims Settlement Act, or this Act.

Hence NEPA has no application to the Cube Cove conveyance.

NEPA likewise has no direct application to Shee Atika's private timber operations on the Cube Cove lands; these operations are not federal actions. The NEPA aspect of plaintiffs' second and third claims may therefore be distilled to the following pair of allegations: that the Section 404 permit for the log transfer facility (LTF) was issued without compliance with NEPA, and that as a result the log transfer portion of Shee Atika's timber operation may not proceed. The parties have cross-moved for summary judgment on these allegations. For the reasons explored below, the court grants summary judgment to plaintiffs and voids the Section 404 permit.

The Section 404 permit at issue was granted in its present form in February, 1985. Preparatory to granting the permit. the Army Corps of Engineers published an environmental impact statement (EIS). Plaintiffs contend that the EIS is inadequate because it fails to consider, pursuant to NEPA § 102(2)(C)(iii), the possibility that as an alternative to building the log transfer facility Shee Atika could exchange its lands for other federal timberlands not on Admiralty Island. Such exchanges are envisioned by ANCSA and ANILCA, and in Shee Atika's case would accord with a Congressional hope that Shee Atika would exchange the Cube Cove lands granted it in ANILCA. See this court's Order regarding subsistence issues, October 17, 1985.

For convenience, the court will adopt the convention of the parties to refer to this option as the "exchange alternative." The exchange alternative can be conceived in two ways. It can be viewed as a branch of the "no action alternative" — the possibility that the Corps could issue no permit at all. On this view the alleged defect of the EIS is that its consideration of the no action alternative is inadequate, failing to evaluate it from the standpoint of promoting an off-island exchange. See 33 C.F.R. Part 230, App. B, P11b(5)(i) (1985); cf. Kilroy v. Ruckelshaus, 738 F.2d 1448, 1453-54 [14 ELR 20774] (9th Cir. 1984). Alternatively, exchange can be viewed as a separate alternative in its own right, one available to the applicant but outside the jurisdiction of the Corps. Failure to consider a reasonable alternative of this nature would likewise render the EIS defective. 33 C.F.R. Part 230, App. B, P11b(5)(b)(ii) (1985); 40 C.F.R. § 1502.14(c) (1985).

A. Required Scope of EIS Treatment of Alternatives

The parties do not dispute that the law requires a broad definition of the applicant's project and a broad and generic definition of the purpose of that project. The Corps' regulations governing the preparation of Environmental Impact Statements provide that

every application has both an applicant's purpose and need and a public purpose and need. These may be the same when the applicant is a governmental body or agency. In most instances when an EIS is required and the applicant is not a governmental body or agency, the applicant is a member of the private sector engaged in providing a good or service for profit. At the same time, the applicant is requesting a permit to perform work which, if approved, is considered in the public interest (i.e., provides a public benefit). This public benefit shall be stated in as broad, generic terms as possible. For instance, the need for a water intake structure requiring a Corps permit as part of a fossil fuel power plant shall be stated as the need for energy and not be limited to the need for cooling water. In a similar way, the need for housing near canals or near marinas, etc., shall be expressed as the need for shelter and not as the need for recreation near water.

33 C.F.R. Part 230, App. B, P11b(4) (1985). Applying these principles to the instant case, the purpose of Shee Atika's application is commercial timber harvesting.

The parties likewise do not dispute that the consideration of alternatives pursuant to NEPA § 102(2)(C)(iii) must be addressed to this broad purpose. See 33 C.F.R. Part 230, App. B, P11b(5)(b) (1985). Hence it would be improper to consider only alternative means of moving logs out of Cube Cove, if another alternative not involving the movement of logs from Cube Cove would also enable commercial timber harvesting to go forward.

The EIS declares that the exchange alternative "cannot be considered in detail" because the "the possibility of an exchange is remote and speculative." EIS at 2-4. This ground likewise forms the core of defendants' argument in this litigation. Remote and speculative alternative need not be considered in an EIS. Vermont Yankee Nuclear Power Corp. v. N.R.D.C., 435 U.S. 519, 551 [8 ELR 20288] (1978). Conversely, failure to consider a reasonable alternative renders an EIS inadequate. Citizens for a Better Henderson v. Hodel, 768 F.2d 1051 [15 ELR 20907] (9th Cir. 1985).

Summary judgment may be granted if it appears from the record of the case, after viewing all factual inferences in the light most favorable to the non-moving party, that no genuine issues of material fact exist, and that the moving party is entitled to prevail as a matter of law. International Ladies Garment Workers Union v. Sureck, 681 F.2d 624, 629 (9th Cir. 1982). The moving party has the burden to show that no genuine issue of material fact exists. Ron Tonkin Gran Turismo, Inc. v. Fiat Distributors, Inc., 637 F.2d 1376, 1381 (9th Cir.), cert. denied, 454 U.S. 831 (1981). As will be seen, the relevant facts are not in dispute in the instant case, and the legal defenses interposed by defendants are without merit.

B. Defendants' Argument Regarding Consent

Defendants claim that exchange is remote and speculative because Shee Atika has refused all exchange proposals advanced by the Forest Service, and that since Shee Atika might refuse future proposals the alternative is "inherently speculative." It is true, of course, that no exchange could go forward without Shee Atika's consent. But Corps regulations call for the consideration of such alternatives. 33 C.F.R. Part 230, App. B, P11b(5)(b) (1985). Indeed, virtually no alternative considered in apermit EIS of this type could be accomplished without the applicant's consent. Whenever the Corps deems an alternative preferable to a proposed action and declines to issue or modifies the permit on that basis, the applicant has the option of abandoning its project in preference to adopting the alternative. Not infrequently, it also has an option of proceeding with the project buy bypassing the procedure requiring a permit. Alternatives 2, 4, 5 and 6 considered in the Cube Cove EIS fall into this latter category; in each case, had the Corps fixed on one of these alternatives as preferable to the proposed action, Shee Atika could have refused to adopt the alternative and could instead have conducted commercial timber operations by means of helicopter transfer. With respect to the need for the applicant's consent, the exchange alternative is exactly like Alternatives 2, 4, 5, and 6: Shee Atika would have the options of adopting the alternative, abandoning its project, or proceeding without an LTF.⁵

The question to be asked, however, is simply whether an off-island exchange is "reasonable." Better Henderson, supra, 768 F.2d at 1057. If the exchange alternative is objectively reasonable, it is not remote and speculative; Shee Atika cannot render an objectively reasonable alternative remote and speculative simply by refusing to adopt it. See Friends of the River v. F.E.R.C., 720 F.2d 93, [13 ELR 21020] (D.C. Cir. 1983) (courts do not waive requirement of serious environmental decisionmaking merely "on the ground that such an enterprise would not change the party's mind").

C. Alleged Need for Legislative Authorization for Exchange

Defendants argue that the exchange alternative is remote and speculative because it might require legislative approval for implementation. As more fully explained in Subpart E, however, the [16 ELR 20785] court interprets ANILCA § 1302(h) to authorize an exchange that would entail little or no legislative involvement. Moreover, "[t]he mere fact that an alternative requires legislative implementation does not automatically establish it as beyond the domain of what is required for discussion." N.R.D.C. v. Morton, 458 F.2d 827, 837 [2 ELR 20029] (D.C. Cir. 1972); accord, e.g., Kilroy v. Ruckelshaus, 728 F.2d 1448, 1454 [14 ELR 20774] (9th Cir. 1984); Coalition for Responsible Regional Development v. Brinegar, 518 F.2d 522, 527 n.4 [5 ELR 20432] (4th Cir. 1975). This is because an EIS is intended to inform a broad spectrum of decisionmakers, including those at the legislative level. N.R.D.C. v. Morton, supra, 458 F.2d at 833, 837. While NEPA does not mandate consideration of alternatives that would entail repeal of basic legislation such as the antitrust laws, id. at 837, or the Clean Water Act, Kilroy, supra, 738 F.2d at 1453-54, reasonable alternatives involving minor legislative adjustment or approval are within the compass of the EIS process. The boundary adjustments or funding appropriations that might involve Congress in an off-island exchange are in the latter category. See generally Sierra Club v. Froehlke, 359 F. Supp. 1289, 1338-39 [3 ELR 20248] (S.D. Tex. 1973).

D. Consideration of Matters Beyond Corps' Jurisdiction

Defendants apparently suggest that the exchange alternative is remote and speculative because it entails action by Federal agencies other than the Corps. This argument is meritless. See, e.g., 33 C.F.R. Part 230, App. B, P11b(5)(b)(iv); 40 C.F.R. § 1502.14(c).

E. Availability of Lands for Exchange

Defendants also aver that the exchange alternative is remote and speculative because no land is available in Southeast Alaska for an exchange. While this reasoning is not advanced in the EIS, the court will consider it on the assumption that, if valid, it could establish that the EIS is not materially deficient.

To show that in the 16,815,000 acres of Tongass National Forest insufficient land is available to exchange for Shee Atika's 23,000-acre holding, defendants rely principally upon an unelaborated statement by the Chief of the Forest Service to a Senate committee that "There are no unallocated lands available." Hearing Before Senate Select Comm. on Indian Affairs on An Inquiry With the Affairs of Shee Atika, Inc., 98th Cong., 1st See. at 294-95 (1983) (testimony of R. Max Peterson). Mr. Peterson did not indicate the nature of the allocation, nor that it is irrevocable. The court need not decide whether this feeble showing could establish a material issue of fact with respect to the availability of comparable lands for exchange.⁶ Defendants' argument is based on a non sequitur: that if no comparable tract can be found for exchange, the exchange alterantive is remote and speculative. The conclusion does not follow the premise because the Secretary of Agriculture is authorized to offer cash as well as land in proposing an exchange to a Native corporation. ANILCA § 1302(h). Even if no comparable and exchangeable lands could be found, therefore, a cash-for-land or cash-and-land-for-land exchange would be possible.

Defendants argue that § 1302(h) does not cover the Cube Cove lands becuase those lands are within a National Forest Wilderness, and therefore are excluded from the general exchange authority granted in ANILCA § 1302(a). Section 1302(h), however, begins with the phrase "Notwithstanding any other provision of law." It then grants a broader exchange authority than does § 1302(a) with respect to certain enumerated landholders. If the § 1302(a) restriction were applied to § 1302(h), the entire first sentence of § 1302(h) would become surplus language, a consequence to be avoided in statutory construction. Tabor v. Ulloa, 323 F.2d 823, 824 (9th Cir. 1963). For further evidence of Congressional intent regarding the exchangeability of Shee Atika's 23,000-acre holding, see ANILCA § 103(b), (c).

F. Alleged Impropriety of Denying Permit on Ground that Exchange is Preferable

The EIS declares that "[d]enying a permit . . . for the sole purpose of forcing Shee Atika to accept exchange proposals it would otherwise refuse cannot be deemed a proper alternative." EIS at 2-4. Defendants' briefs echo this position, although neither the EIS nor the briefs articulate a rationale for it. If an objectively reasonable exchange were offered, but Shee Atika nonetheless refused to consent to it, it would not be improper for the Corps to deny a permit, pursuant to its authority under 33 U.S.C. § 1344(c). The Corps is obligated to consider the public interest in evaluating a permit application, and is entitled to deny a permit that would be contrary to the public interest. 33 C.F.R. § 320.4(a); see also, e.g., Buttrey v. United States, 690 F.2d 1170, 1183-86 [13 ELR 20085] (5th Cir. 1982), cert. denied, 461 U.S. 927 (1983). The point of the EIS process, of course, is to ascertain the public interest. If evaluation showed that an exchange would better serve environmental and other public values while protecting Shee Atika's commercial interests, denial of a permit would promote the public interest by encouraging (though not compelling) the exchange. The Corps is under no obligation to assist an applicant in pursuing an unnecessarily damaging means of accomplishing its goal. Because it would be proper for the Corps to deny a permit on the basis that a fair off-island exchange would better serve the public interest, it would be proper for the Corps to evaluate an off-island exchange as an alternative in the EIS.⁷

G. Plaintiffs' Right to Summary Judgment

In the EIS process, the "agency bears the primary responsibility to investigate serious alternatives." Seacoast Anti-Pollution League v. N.R.C., 598 F.2d 1221, 1231 [9 ELR 20384] (1st Cir. 1979). Plaintiffs met their minimal burden of suggesting the exchange alternative during the comment period (indeed, in light of past exchanges the alternative may have been sufficiently obvious that the Corps was obligated to raise it on its own). It was then up to the Corps to decide whether or not the proposal was reasonable, and to dispose of it accordingly.

Plaintiffs' burden in this litigation is to show, under the "hard look" standard applicable to an EIS, that the Corps' determination that exchange is remote and speculative is an erroneous determination. See, e.g., Texas Committee on Natural Resources v. Marsh, 741 F.2d 823, 824 [14 ELR 20796] (5th Cir. 1984). To do so, they need not prove that exchange is the best alternative. E.g., Better Henderson, supra, 768 F.2d at 1057. They must show only that exchange is possible and that it is not remote and speculative. Exchange in this context is inherently possible because even if sufficient lands are unavailable for exchange the government is able to substitute money for land in an exchange proposal. The undisputed fact that other Native corporations have exchanged the same or similar tracts establishes than an exchange is not a remote and speculative idea. The EIS therefore should have evaluated the merits of the exchange alternative.

Accordingly, IT IS ORDERED:

(1) THAT the dispositive motions of Shee Atika and the Federal defendants are granted in part as follows:

(a) defendants are granted summary judgment with respect to plaintiffs' claims pursuant to ANCSA § 17(b);

(b) plaintiffs' claims pursuant to the Property Clause of the United States Constitution are dismissed for failure to state a claim upon which relief can be granted;

(c) plaintiffs' claim pursuant to the Due Process Clause of the United States Constitution are dismissed for failure to state a claim upon which relief can be granted;

(d) plaintiffs' claim pursuant to § 306 of the Clean Water Act is dismissed for failure to state a claim upon which relief can be granted;

(e) plaintiffs' claim in paragraph 32 of the Consolidated Complaint pursuant to the National Environmental Policy Act is [16 ELR 20786] dismissed for failure to state a claim upon which relief can be granted;

(2) THAT the First Claim of plaintiffs' Consolidated Complaint is dismissed in its entirety;

(3) THAT the dispositive motions of Shee Atika and the Federal defendants are denied with respect to plaintiffs' claims in paragraphs 34 and 35 of the Consolidated Complaint pursuant to the National Environmental Policy Act and §§ 402 and 404 of the Clean Water Act;

(4) THAT plaintiffs' cross-motion for partial summary judgment re inadequacy of EIS for failing to study exchange alternative is granted;

(5) THAT the court declares that the Clean Water Act § 404 permit issued to Shee Atika for the Cube Cove Log Transfer Facility on February 28, 1985, is void;

(6) THAT as of December 11, 1985, Shee Atika shall be enjoined from all use of the Cube Cove Log Transfer Facility until a valid § 404 permit has been obtained;

(7) THAT Shee Atika shall within fifteen days of the date of this order submit a proposed form for partial final judgment;

(8) THAT all other parties shall have ten days of the date of lodging of the proposed form of partial final judgment to file any objections to the same;

(9) THAT Shee Atika's "Motion for Entry of Rule 54(b) Order" (Docket No. 166) shall be held in abeyance pending compliance with item (7) above.

1. Plaintiffs do not maintain, and apparently could not maintain, that any of the easements they advocate could be characterized as "valid existing rights" preserved under § 506(c)(1).

2. After public hearings in Juneau and Angoon, the Secretary of Agriculture selected fourteen 25-foot-wide trail easements with an aggregate length of approximately ten miles, and seven one-acre cabin or campsite easements. Federal Defendants' Exhibit HH. The Cube Cove conveyance totals about 36 square miles.

3. The court observes that the Regional Forester was under the mistaken impression that the selections were advisory. Federal Defendants' Exhibit HH, attached Environmental Assessment at page 1. Had the Department of Agriculture held to this view, administrative appeal would have been denied. 36 C.F.R. § 211.18(b)(3). Plaintiffs were nonetheless obliged to attempt the appeal.

4. Of course, Congress did not thereby "override" or "amend" the due process clause; it simply conveyed the lands in a manner that mooted any prior due process violations by the Secretary.

Because of the concluding proviso added to § 315 in conference, the court does not believe § 315 was intended to moot challenges to the conveyance arising out of ANILCA and ANCSA.

5. The record does not establish whether commercially viable timber operations could proceed indefinitely without an LTF. Defendants and the EIS concede that denial of the permit would increase economic pressure for an exchange.

6. Mr. Peterson's reference to allocation was presumably a reference to prior administrative or legislative allocation. As was shown in Subpart C, supra, alternatives that involve adjustments to existing legal structures are not beyond the scope of an EIS. Moreover, it is undisputed that other Native corporations have successfully exchanged their Admiralty Island holdings; Gold Belt exchanged the very lands Shee Atika now holds. ANILCA §§ 506(a)(3), 506(b). Finally, substantial evidence indicates that off-island lands may still be readily available for exchange. See Tongass Land Management Plan, Appendix 2 (Exhibit 4 to plaintiffs' cross-motion, Docket Nos. 117 and 142); Draft ANILCA § 706(b) Report No. 1 at 10, Table 5 (July 19, 1985) (Supplemental Exhibit filed as Docket No. 149) (indicating that Forest Service continues to reserve 9,000,000 board feet of annual timber volume in anticipation of possible exchange with Shee Atika).

7. Because the purpose of this EIS is to foster informed discussion and decisionmaking by persons other than the Corps — including Shee Atika, the public, the Forest Service, and Congress — it is arguable that the EIS should include an evaluation of off-island exchange even if for some reason it were not proper for the Corps itself to deny a permit on the ground that exchange is preferable. See, e.g., Better Henderson, supra, 768 F.2d at 1056; N.R.D.C. v. Morton, supra, 458 F.2d at 833; see also 33 C.F.R. Part 230, App. B, P11b(5)(b)(ii) (1985).