ELR Citation: ELR 20782
No(s). A83-234 CIV (D. Alaska Nov 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.