ELR Citation: ELR 20775
No(s). A83-234 CIV (D. Alaska Oct 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 holds that 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