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entitled 'Alaska Native Allotments: Conflicts with Utility Rights-of-
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Report to the Chairman, Committee on Appropriations, U.S. Senate:
September 2004:
ALASKA NATIVE ALLOTMENTS:
Conflicts with Utility Rights-of-way Have Not Been Resolved through
Existing Remedies:
GAO-04-923:
GAO Highlights:
Highlights of GAO-04-923, a report to the Chairman, Committee on
Appropriations, U.S. Senate:
Why GAO Did This Study:
In 1906, the Alaska Native Allotment Act authorized the Secretary of
the Interior to allot individual Alaska Natives (Native) a homestead
of up to 160 acres. The validity of some of Copper Valley Electric
Association’s (Copper Valley) rights-of-way within Alaska Native
allotments is the subject of ongoing dispute; in some cases the
allottees assert that Copper Valley’s electric lines trespass on their
land. The Department of the Interior’s (Interior) Bureau of Land
Management (BLM) and Bureau of Indian Affairs (BIA) are responsible
for granting rights-of-way and handling disputes between allotees and
holders of rights-of-way.
GAO determined (1) the number of conflicts between Native allotments
and Copper Valley rights-of-way and the factors that contributed to
these conflicts, (2) the extent to which existing remedies have been
used to resolve these conflicts, and (3) what legislative alternatives,
if any, could be considered to resolve these conflicts.
What GAO Found:
There are 14 cases where conflict exists regarding Copper Valley’s
rights-of-way within Native allotments. In most of these cases, Copper
Valley has been found by Interior to be in trespass because its rights-
of-way have been determined to be invalid. The root of some of these
conflicts is Interior’s application of the so-called “relation back”
doctrine. In these instances, Interior invalidated Copper Valley
rights-of-way because it found that allottees’ rights to the land
began when they first used or occupied the land, predating when Copper
Valley obtained its right-of-way and when the allotment application
was made. Federal courts have dismissed legal challenges to the
relation back doctrine because the U.S. government has not allowed
itself to be sued with regard to this issue. In other cases, conflict
exists because Interior does not recognize state issued rights-of-way
that fall within certain highway easements granted to the state by the
federal government. There are another 4 cases where a BIA realty
service provider has requested that Copper Valley obtain rights-of-way
even though GAO believes it lacks evidence that the electric lines are
in trespass. While BIA has recognized the need to provide realty
training, its March 2004 training course did not include information
on the types of evidence that should be developed before pursuing an
alleged trespass involving rights-of-way.
While a resolution to a number of these conflicts has been
intermittently pursued since the mid-1990s, only a few cases have been
resolved using existing remedies. Copper Valley has three remedies to
resolve these conflicts: (1) negotiating rights-of-way with Native
allottees in conjunction with BIA; (2) relocating its electric lines
outside of the allotment; or (3) exercising the power of eminent
domain, also known as condemnation, to acquire the land. Copper Valley
has ceased trying to resolve these conflicts because it maintains that
the existing remedies are too costly, impractical, and/or potentially
damaging to relationships with the community. More importantly, Copper
Valley officials told GAO that on principle they should not have to
bear the cost of resolving conflicts that they believe the federal
government caused by applying the relation back doctrine and by not
recognizing their state issued rights-of-way.
Several legislative remedies have been identified to resolve these
conflicts, including legislation to: (1) change Interior’s application
of the relation back doctrine so that the date an allotment application
is filed, rather than the date an allottee claimed initial use and
occupancy of the land, is used to determine the rights of allottees
and holders of rights-of-way; (2) allow the U.S. government to be sued
regarding Alaska Native allotments so that legal challenges can be
heard in federal court; (3) ratify the rights-of-way granted by the
State of Alaska within federally granted highway easements; or (4)
establish a federal fund to pay for rights-of-way across Native
allotments. While GAO did not determine the financial costs or the
legal ramifications on the property rights of the Alaska Native
allottees associated with any of these options, the costs and legal
ramifications would need to be assessed.
What GAO Recommends:
GAO recommends that BIA develop a training module for its realty
service providers in Alaska on the types of evidence that should be
developed before pursuing an alleged trespass involving rights-of-way.
Interior agreed with GAO’s recommendation.
www.gao.gov/cgi-bin/getrpt?GAO-04-923.
To view the full product, including the scope and methodology, click on
the link above. For more information, contact Barry T. Hill at (202)
512-3841 or hillbt@gao.gov.
[End of section]
Contents:
Letter:
Results in Brief:
Background:
Conflicts Exist in 14 Cases and Alaska Realty Is Pursuing Four Other
Cases without Evidence of a Trespass:
Existing Remedies Available to Resolve Disputes over the Validity of
Copper Valley Rights-of-way within Native Allotments Have Produced
Limited Results:
Legislative Alternatives to Resolve Conflicts between Native Allotments
and Copper Valley Rights-of-way Have Been Identified:
Conclusion:
Recommendations for Executive Action:
Agency Comments and Our Evaluation:
Appendixes:
Appendix I: Objectives, Scope, and Methodology:
Appendix II: Legal Appendix on the Relation Back Doctrine:
Federal District Court Cases Applying Relation Back Doctrine:
Selected IBLA Cases Applying the Relation Back Doctrine:
Cases Analyzing Whether the Quiet Title Act Precludes Judicial Review
of IBLA Decisions Concerning the Relation Back Doctrine:
Other Applications of Relation Back Doctrine:
Appendix III: Status of the 34 Native Allotments Identified by Alaska
Realty and Copper Valley Where Conflicts Were Suspected to Exist:
Appendix IV: Comments from the Department of the Interior:
Appendix V: Comments from the State of Alaska:
Appendix VI: Comments from the Copper Valley Electrical Association:
GAO Comments:
Appendix VII: GAO Contacts and Staff Acknowledgments:
GAO Contacts:
Staff Acknowledgments:
Tables:
Table 1: Cases Where Conflict Exists between Native Allotments and
Copper Valley's Electric Lines:
Table 2: Native Allotments Where Conflicts Exist Because BLM and Alaska
Realty Have Applied the Relation Back Doctrine:
Table 3: Cases with State Issued Utility Rights-of-way within Federally
Granted Highway Easements That Cross Native Allotments:
Table 4: Native Allotments in Which Copper Valley Was Never Issued a
Valid Right-of-way:
Table 5: Native Allotments for Which Alaska Realty Has Requested Copper
Valley Obtain Rights-of-way without Conclusive Evidence of Trespass:
Table 6: Status of the 34 Native Allotments Identified by Alaska Realty
and Copper Valley Where Conflicts Were Suspected to Exist:
Table 7: Native Allotments Categorized by Certificate Date and Type of
Approval:
Figures:
Figure 1: Map of Copper Valley Electric Association's Service Area and
Location of Native Allotments:
Figure 2: Location of the 14 Cases Where Conflict Exists between Native
Allotments and Copper Valley's Electric Lines:
Figure 3: Key Milestones for Evelyn Hash Koonuk's Native Allotment and
Copper Valley's Right-of-way:
Figure 4: Key Milestones for Carol J. Gurtler Holt's Native Allotment
and Copper Valley's Right-of-way:
Figure 5: Copper Valley's Right-of-way Crossing Graves on Peter Ewan's
Native Allotment (May 2004):
Figure 6: Copper Valley's Underground Electric Line Crossing Howard
Jerue's Native Allotment (May 2004):
Abbreviations:
ANILCA: Alaska National Interest Lands Conservation Act:
BIA: Bureau of Indian Affairs:
BLM: Bureau of Land Management:
IBLA: Department of the Interior's Board of Land Appeals:
PLO: Public Land Order:
Letter September 7, 2004:
The Honorable Ted Stevens:
Chairman, Committee on Appropriations:
United States Senate:
Dear Mr. Chairman:
For over a century, there have been continuing issues regarding the
status and use of lands involving Alaska Natives (Native). In 1906,
Congress passed the Alaska Native Allotment Act, which authorized the
Secretary of the Interior to allot individual Alaska Natives a
homestead of up to 160 acres of land.[Footnote 1] The 160 acres could
be composed of multiple parcels of land. Initially, the Native
Allotment Act was little used by Alaska Natives. It was primarily in
the early 1970s that roughly 10,000 Alaska Natives applied for over
16,000 parcels of land. The Department of the Interior's Bureau of Land
Management (BLM) is still processing many of these applications. As
these allotment applications have been processed over the last three
decades, conflicts have arisen between the property rights of Alaska
Natives and the holders of certain types of rights-of-way.
The Department of the Interior (Interior) and the State of Alaska have
granted rights-of-way in Alaska for a variety of uses such as
electrical transmission lines, oil and gas pipelines, and
highways.[Footnote 2] Some of these rights-of-way cross Native
allotments giving rise to conflicts between Alaska Natives and holders
of rights-of-way. In these conflicts, some Native allottees claim that
utility companies' rights-of-way are invalid and that the utility is
trespassing on the allotment. Conversely, the utilities frequently
claim that they are not in trespass and that they have a valid right-
of-way to use the land. The issue of whether utility companies hold
valid rights-of-way within Native allotments is important because it
raises fundamental questions about equity and fairness for owners of
Native allotments who may not be receiving just compensation for use of
their land and for utility companies that believe they constructed
facilities in good faith under valid rights-of-way.
Two agencies within Interior--the Bureau of Land Management (BLM) and
the Bureau of Indian Affairs (BIA)--as well as the Interior Board of
Land Appeals (IBLA) have key responsibilities with regard to Native
allotments in Alaska. These responsibilities include adjudicating
applications for Native allotments,[Footnote 3] granting rights-of-way
on federal lands, and handling disputes between Native allottees and
holders of rights-of-way. BLM is responsible for adjudicating
applications for Native allotments and granting rights-of-way on BLM
lands. BLM's decisions concerning Native allotments and rights-of-way
can be appealed administratively to the IBLA.[Footnote 4] The IBLA,
among other things, decides appeals by Natives whose allotment
applications have been denied and disputes concerning the validity of
rights-of-way within Native allotments. Once BLM passes title to an
Alaska Native allottee, BIA assumes some management responsibility for
the allotment, including approving any rights-of-way through Native
allotments. BIA also contracts with regional nonprofit corporations or
other Native entities to perform realty services for owners of Native
allotments such as sales, leases, mortgages, and rights-of-way. The
Alaska Realty Consortium (Alaska Realty) provides realty services for
over 160 Native allotments in south-central Alaska.
Since 1987, when addressing disputes concerning the validity of rights-
of-way within Native allotments, Interior has applied the "relation
back" doctrine and invalidated utility companies' rights-of-way across
certain Native allotments. Under this legal principle, Interior grants
priority to allottees if the date of the allottee's claimed initial use
and occupancy of available land predates other uses and rights-of-way,
even if the allotment application was submitted after the right-of-way
was issued. The rights of Alaska Native allottees relate back to when
they first started using the land, not when the allotment was filed or
granted. Prior to 1987, Alaska Native allotments generally were subject
to rights-of-way existing when they were approved.[Footnote 5] Federal
courts have dismissed legal challenges to Interior's use of the
relation back doctrine because the U.S. government has not allowed
itself to be sued with regard to Alaska Native allotments.
One holder of rights-of-way within Native allotments is the Copper
Valley Electric Association (Copper Valley), a rural nonprofit electric
cooperative that was formed in 1955, and currently provides electricity
to about 4,000 members in Alaska's Valdez and Copper River Basin areas.
As early as 1958, Copper Valley obtained rights-of-way permits from
Interior, and later from the State of Alaska, to construct and maintain
electric lines. The validity of some Copper Valley rights-of-way within
Native allotments is the subject of ongoing dispute. Conflicts exist
where Interior and/or Alaska Realty have determined that Copper Valley
is trespassing or allegedly trespassing across Native allotments. In
this context, we determined (1) the number of conflicts that exist
between Copper Valley rights-of-way and Alaska Native allotments and
the factors that contributed to these conflicts, (2) the extent to
which existing remedies have been used to resolve these conflicts, and
(3) what legislative alternatives, if any, could be considered to
resolve these conflicts.
To address these objectives, we reviewed all 34 Native allotments
identified by Copper Valley and Alaska Realty where conflicts were
suspected to exist. To determine whether there was an actual conflict
between a Native allotment and Copper Valley's right-of-way, we
examined BLM allotment adjudication files and all of the rights-of-way
permits (seven federal and two State of Alaska) issued to Copper Valley
for these allotments. We interviewed representatives from BLM, BIA, and
Interior's Alaska Office of the Solicitor. We also met with officials
and reviewed records from Alaska Realty, Copper Valley, the State of
Alaska, and Alaska Natives. We conducted our work between November 2003
and June 2004 in accordance with generally accepted government auditing
standards. Appendix I provides further details about the scope and
methodology of our review.
Results in Brief:
There are 14 cases where conflict exists regarding Copper Valley's
rights-of-way within Native allotments. In most of these cases,
Interior has found that Copper Valley is currently trespassing because
either its rights-of-way have been determined to be invalid or it never
obtained a right-of-way. These conflicts stem from three principal
sources. First, in 5 cases, conflict exists because BLM and Alaska
Realty have applied the relation back doctrine to invalidate or
question Copper Valley's rights-of-way in cases where the Native
allottee's use and occupancy of the land predates the right-of-way. In
these instances, Copper Valley obtained rights-of-way and built
electric lines before the land was awarded as an allotment. Federal
courts have dismissed legal challenges to Interior's use of the
relation back doctrine because the U.S. government has not allowed
itself to be sued with regard to this issue. Second, conflict exists in
6 instances because Interior does not recognize rights-of-way granted
by the State of Alaska to Copper Valley to install electric lines
within certain highway easements granted to the state by the federal
government. Interior's Alaska Office of the Solicitor has taken the
position that the federal government did not convey to the State of
Alaska the authority to grant rights-of-way for utilities within
certain highway easements. As a result, Alaska Realty maintains that
Copper Valley is trespassing on the allotment because it installed
electric lines without acquiring a federal right-of-way across these
allotments. Finally, we found 3 instances where conflict exists because
Copper Valley constructed electric lines even though they were never
issued a right-of-way. There are another 4 cases, where Alaska Realty
is requesting that Copper Valley obtain rights-of-way, where we do not
believe that it has evidence that Copper Valley's electric lines are in
trespass. In the majority of these cases, it appears that Copper Valley
is not in trespass. While BIA has recognized the need to provide realty
training, its March 2004 training course did not include information on
the types of evidence that should be developed before pursuing an
alleged trespass involving rights-of-way. To prevent escalating these
disputes unnecessarily, we are recommending that BIA develop, as part
of its training and technical assistance provided to its realty service
providers in Alaska, a training module on the types of evidence that
should be developed before pursuing an alleged trespass involving
rights-of-way.
While the resolution of a number of these conflicts has been
intermittently pursued since the mid-1990s, only a few cases have been
resolved using existing remedies. Copper Valley currently has three
remedies available to it to resolve conflicts. It could (1) negotiate
rights-of-way with Native allottees in conjunction with BIA; (2)
relocate its electric lines outside of the allotment; or (3) exercise
the power of eminent domain, also known as condemnation, to acquire the
land. Since the mid-1990s, Copper Valley has negotiated rights-of-way
for 3 Native allotments; however, it has not relocated any of its
electric lines and has been reluctant to exercise eminent domain to
resolve other conflicts. With respect to the first option, Copper
Valley began discussions with Alaska Realty in the mid-1990s to obtain
rights-of-way for 13 Native allotments. Copper Valley surveyed 9 of the
allotments, the first step in obtaining a right-of-way. Ultimately, 7
were appraised, and Copper Valley was able to reach an agreement for
rights-of-way across 3 allotments. The other 4 cases that were
appraised remain in conflict, and Copper Valley and the Native
allottees have been unable to agree on the terms of the proposed right-
of-way. Copper Valley has stopped trying to resolve these conflicts
because it maintains that the existing remedies are too costly,
impractical, and/or potentially damaging to relationships with the
community. More importantly, Copper Valley officials told us that on
principle they should not have to bear the cost of resolving conflicts
that they believe the federal government caused by applying the
relation back doctrine and by not recognizing their state issued
rights-of-way. Copper Valley is now seeking legislation to resolve
these conflicts. In addition to the remedies currently available to
Copper Valley, the federal government has the option of forcing the
resolution of these conflicts by bringing trespass actions on behalf of
the allottees against Copper Valley to require that it relocate its
electric lines and pay damages to the allottee. However, according to
Interior's Alaska Office of the Solicitor, the federal government is
unlikely to take this course of action because it would provide Copper
Valley the opportunity to raise its concerns about the relation back
doctrine and other legal issues in federal court.
Several legislative alternatives could be considered to resolve
conflicts over the validity of Copper Valley rights-of-way within
Alaska Native allotments. Copper Valley representatives, Alaska Native
advocates, and GAO have identified alternatives including legislation
to:
* Alternative 1: Change Interior's application of the relation back
doctrine to Alaska Native allotments so that the date an allotment was
filed, rather than the date an allottee claimed initial use and
occupancy of the land, is used to determine the rights of allottees and
holders of rights-of-way.
* Alternative 2: Allow the U.S. government to be sued with regard to
Alaska Native allotments so that legal challenges to the relation back
doctrine and other legal issues can be heard in federal court.
* Alternative 3: Ratify the rights-of-way granted by the State of
Alaska within federally granted highway easements, to provide for a
valid right-of-way dating back to the time the state right-of-way was
granted.
* Alternative 4: Establish a federal fund to pay for rights-of-way
across Alaska Native allotments.
We do not hold an opinion as to which, if any, of these alternatives
might be preferable. Further, while we did not determine the financial
costs or the legal ramifications on the property rights of the Alaska
Native allottees associated with any of these options, these costs and
legal ramifications would need to be assessed. For example,
implementing alternatives one or three would likely benefit Copper
Valley by favoring the holders of rights-of-way over Native allottees.
Furthermore, implementing either of these alternatives may result in
legal challenges by Native allottees claiming that such legislation
constitutes a taking of their property that requires federal
compensation. Finally, alternative four would benefit both Native
allottees and Copper Valley, but the federal government and taxpayers
would bear the entire cost of resolving the conflicts. However, the
cost of alternative four would be similar to the combined cost of
alternatives one and three if they are determined to be takings that
require federal compensation.
We received comments on a draft of this report from Interior, the State
of Alaska and Copper Valley. The three entities generally agreed with
the report's contents. Interior and Copper Valley agreed with the
report's recommendation for BIA to develop, as part of its training and
technical assistance provided to its realty service providers in
Alaska, a training module on the types of evidence that should be
developed before pursuing an alleged trespass involving rights-of-way.
The State of Alaska did not specifically comment on our recommendation.
The State of Alaska commented on each of the alternatives, and
expressed its support for alternative three. Copper Valley also
commented on each of the alternatives and specifically expressed
support for alternatives one and three. Written comments from these
three entities are included in appendixes IV through VI.
Background:
For over a century, there have been controversies surrounding the
status and use of lands involving Alaska Natives. For generations,
Alaska Natives have used the land to hunt, fish, and gather wild plants
for food. Land use was seasonal, and the intensity of its use depended
on the availability of these subsistence resources. The 1867 Treaty of
Cession transferred all of the lands and waters of Alaska from Russia
to the United States and made them public domain. However, the treaty
failed to clearly define the status of Alaska Natives, their rights, or
their ownership of land.[Footnote 6]
In 1906, Congress passed the Alaska Native Allotment Act, which
authorized the Secretary of the Interior to allot individual Alaska
Natives a homestead of up to 160 acres of land. The 1906 Act stated:
"That the Secretary of the Interior is hereby authorized and empowered,
in his discretion and under such rules as he may prescribe, to allot
not to exceed one hundred and sixty acres of nonmineral land in the
district of Alaska to any Indian or Eskimo of full or mixed blood who
resides in and is a native of said district, and who is the head of a
family, or is twenty-one years of age; and the land so allotted shall
be deemed the homestead of the allottee and his heirs in perpetuity,
and shall be inalienable and nontaxable until otherwise provided by
Congress. Any person qualified for an allotment as aforesaid shall have
the preference right to secure by allotment the nonmineral land
occupied by him not exceeding one hundred and sixty acres."[Footnote 7]
Under Interior's regulations, the 160 acres may be in separate parcels
that need not be contiguous, but each separate tract should be in
reasonably compact form.[Footnote 8] In a 1956 amendment to the act,
Congress required that "[n]o allotment shall be made to any person
under [the 1906] Act until said person has made proof satisfactory to
the Secretary of the Interior of substantially continuous use and
occupancy of the land for a period of five years."[Footnote 9]
Initially, the Native Allotment Act was little used by Alaska Natives.
However, before the law's repeal with passage of the Alaska Native
Claims Settlement Act on December 18, 1971, roughly 10,000 Alaska
Natives applied for over 16,000 parcels of land.[Footnote 10] The
provision that repealed the Native Allotment Act preserved any pending
Native allotment applications "before" Interior as of December 18,
1971. While Interior has processed most of the Native allotment
applications, as of March 2004, applications for about 3,000 parcels
remain to be processed.
Interior's policies in the early 1970s required clear, physical
evidence to support a Native's use and occupancy of an allotment claim.
Since traditional Native land uses, such as hunting, fishing, and
gathering, did not leave much physical evidence, Interior questioned
the legitimacy of many allotment applications and eliminated or reduced
the size of many allotments. In response, many Natives appealed
Interior's decisions regarding their allotment applications. In 1976,
Interior was compelled by a federal appeals court decision to provide
hearings before denying any allotment application for factual
reasons.[Footnote 11] In addition to providing hearings for pending
applications, Interior, as a result of this decision, reopened cases
for applicants that had been denied a hearing in the past, slowing the
allotment adjudication process. Also, in 1979, an Alaska district court
ruled that a Native's right to the land was deemed to have vested as of
the date of first use and occupancy, rather than at the time the
allotment was approved.[Footnote 12] Therefore, a Native's use of an
allotment took priority over other land selections made by the State of
Alaska under the Alaska Statehood Act of 1958.[Footnote 13] This case
also slowed down the allotment adjudication process, because BLM had to
recover land from the state and other entities so it could be
reconveyed as Native allotments. Also, BLM reopened and readjusted
cases that had been denied in the past due to conflicts with other land
selections.
In 1980, in an attempt to get the allotment adjudication process moving
forward again, Congress legislatively approved all pending allotment
applications (with certain exceptions) without regard to the
applicant's actual use of the land, as part of the Alaska National
Interest Lands Conservation Act (ANILCA).[Footnote 14] Section
905(a)(1) of ANILCA states that, "Subject to valid existing rights, all
Alaska Native allotment applications made pursuant to the [1906 Alaska
Native Allotment Act] which were pending before the Department of the
Interior on or before December 18,1971… are hereby approved…"[Footnote
15] Although ANILCA reduced the need for factual investigations and
hearings regarding a Native's use and occupancy of an allotment
approved under the act, conflicting interpretations of the wording and
intent of the statute continued to hamper the allotment adjudication
process. In particular, differing interpretations of the phrase "valid
existing rights" with regard to rights-of-way, set the stage for
conflicts between Native allotees and holders of rights-of-way and
resulted in numerous legal appeals.
Process for Awarding Allotments, Adjudicating Disputes, and Granting
Rights-of-way:
Two agencies within Interior--BLM and BIA--as well as the IBLA have key
responsibilities with regard to Native allotments in Alaska. These
responsibilities include adjudicating applications for Native
allotments, granting rights-of-way on federal lands, and handling
disputes between Native allottees and holders of rights-of-way. BIA is
responsible for the administration and management of Alaska Native
allotments on behalf of the United States. BLM is responsible for
adjudicating applications for Native allotments and granting rights-of-
way on BLM lands. BLM's decisions concerning Native allotments and
rights-of-way can be appealed to the IBLA. The IBLA makes decisions for
Interior on appeals related to actions taken by Interior officials
relating to the use and disposition of public lands. In Alaska,
hundreds of BLM's Native allotment decisions have been appealed to the
IBLA, including those concerning the validity of rights-of-way within
Native allotments.
The allotment adjudication process begins when an Alaska Native files
an application with BLM. The allotment application requires the
applicant to designate the land's location, state his or her age or
head of household status, and specify how and when the land was used.
BIA then certifies that the applicant is an Alaska Native and is
qualified to make an application under the provisions of the 1906
Native Allotment Act. Following BIA certification, BLM is responsible
for the remainder of the application review process. BLM's basic
responsibilities are to (1) determine whether the lands were available
for selection at the time use and occupancy began; (2) perform a field
examination to locate the claimed land and collect information to
determine whether the applicant meets the eligibility requirements; (3)
approve or disapprove the application; (4) if the application is
approved, survey the land; and (5) issue a certificate of allotment.
For allotments legislatively approved under ANILCA, BLM does not need
to perform the field examination and verify the Native's use and
occupancy of the allotment. But BLM would still have to determine
whether the allotment is qualified for legislative approval. Until it
has surveyed an allotment, BLM cannot transfer legal title to the
applicant.
Once BLM approves an allotment and passes title to an Alaska Native,
BIA, which has a fiduciary responsibility for Native lands, assumes
some management responsibility for Native allotments. BIA is generally
the first point of contact for an Alaska Native regarding the
administration of their allotment. They provide realty services such as
providing advice regarding sales, leases, granting rights-of-way, and
investigating trespass claims. As authorized by the Indian Self-
Determination and Education Assistance Act, as amended, BIA also
contracts with regional nonprofit corporations or other Native entities
to perform realty services for owners of Native allotments. Under the
act, as amended, BIA's ability to impose specific performance standards
is limited and, in some cases, prohibited.[Footnote 16] The Aleutian/
Pribilof Islands Association, Inc; Chugachmiut, Inc; and the Copper
River Native Association, Inc; are three Native regional nonprofits in
Alaska that have assumed management of the realty function from BIA for
selected villages within their respective regions. In 1995, these three
regional nonprofits formed Alaska Realty to provide realty services.
Alaska Realty is responsible for about 260 Native allotments across the
three regions, including over 160 allotments in the Copper River area.
Since BIA grants or approves actions affecting Native title on Native
allotments, an applicant must work with BIA or its contractor (realty
service provider) to obtain a right-of-way through an approved Native
allotment. BIA's right-of-way application process generally takes at
least 24 months to complete and begins when the applicant contacts the
BIA, or its realty service provider, for permission to survey the
Native allotment. The BIA, or its realty service provider, would then
contact the owners of the allotment to obtain consent to survey. After
surveying the allotment, the applicant submits the right-of-way
application. The application includes maps, survey field notes, the
landowner's written consent, and requests for the appraisal report.
Other requirements such as timber permits and other regulatory permits
may be necessary. After the appraisal is conducted, the BIA, or its
realty service provider, will negotiate with the allottees and the
right-of-way applicant to discuss the settlement terms. Under federal
regulations, the BIA may not approve or grant a right-of-way for less
than the fair market value unless when waived in writing by the
allotment owner and approved by Interior.[Footnote 17] A right-of-way
is issued after BIA had concurred with and approved the settlement
agreement.
For rights-of-way applications within pending Native allotments, BLM
grants the right-of-way after coordinating with BIA. Since BLM has
administrative jurisdiction while the Native allotment is under
adjudication, the applicant would apply through BLM in the survey and
appraisal process to obtain a right-of-way. Under a 1979 Memorandum of
Understanding between BLM and BIA, BLM coordinates with BIA when
processing right-of-way applications for pending Native allotments, and
BIA assumes responsibility for Native allotments once BLM approves the
allotment.
Conflicts Have Emerged Over the Status of Utility Rights-of-way within
Native Allotments:
As allotment applications have been processed over the last three
decades, conflicts have arisen between the property rights of Alaska
Natives and the holders of rights-of-way. Interior and the State of
Alaska have granted rights-of-way in Alaska for a variety of uses such
as electrical transmission lines, oil and gas pipelines, and highways.
Some of these rights-of-way cross Native allotments, giving rise to
conflicts between Alaska Natives and holders of rights-of-way, which in
many cases are utilities. In some of these conflicts, electric
utilities and other holders of rights-of-way have had their rights-of-
way across Native allotments invalidated.
Prior to 1987, Alaska Native allotments were generally subject to
rights-of-way existing when they were approved.[Footnote 18] However,
in 1987, the IBLA began applying the relation back doctrine to declare
certain existing rights-of-way null and void. Under the relation back
doctrine, the IBLA gives priority to an allottee if the allottee's
claimed initial use and occupancy of the land predated other uses and
rights-of-way, even if the allotment application was submitted after
the right-of-way was issued.[Footnote 19] Legal challenges to
Interior's use of the relation back doctrine in federal court have been
dismissed because the U.S. government has not waived its sovereign
immunity and allowed itself to be sued with regard to Alaska Native
allotments.[Footnote 20] Sovereign immunity is a legal doctrine that
precludes bringing suit against the government without its consent.
Congress has enacted various statutes setting out the circumstances
under which the U.S. government has consented to be sued. Under the
Quiet Title Act, the U.S. government has waived its sovereign immunity
for certain land issues; however, the waiver in the act does not apply
to "trust or restricted Indian lands." Since Alaska Native allotments
are "restricted Indian lands," federal courts have ruled that they do
not have jurisdiction to review the IBLA's decisions concerning the
application of the relation back doctrine to rights-of-way over Native
allotments. Appendix II provides further analysis of the relation back
doctrine.
Copper Valley Electric Association's Rights-of-way and Native
Allotments:
One holder of rights-of-way within Native allotments is Copper Valley,
a rural nonprofit electric cooperative that was formed in 1955 and
currently provides electricity to about 4,000 members in Alaska's
Valdez and Copper River Basin areas via 500 miles of distribution and
transmission lines. There are dozens of Native allotments within Copper
Valley's service area. (See fig.1.) As early as 1958, Copper Valley
obtained rights-of-way permits from Interior, and later from the State
of Alaska, to construct and maintain electric power lines. Copper
Valley built some of these transmission lines in the 1960s. Some
conflicts later arose when BLM approved some Native allotments
containing Copper Valley's transmission lines. Historically,
cooperative utilities in Alaska, as in much of the United States, do
not purchase easements from cooperative members and, in the case of
Copper Valley, its bylaws prohibit the utility from doing so. Rural
electric cooperatives, like Copper Valley, are nonprofit, member-owned
utilities that provide electric service to predominantly rural areas
and were originally formed solely to provide electricity to their
members at cost. Currently, possible conflicts exist regarding the
validity of Copper Valley's rights-of-way within Native allotments.
Figure 1: Map of Copper Valley Electric Association's Service Area and
Location of Native Allotments:
[See PDF for image]
[End of figure]
Conflicts Exist in 14 Cases and Alaska Realty Is Pursuing Four Other
Cases without Evidence of a Trespass:
There are 14 cases where conflict exists regarding the validity of
Copper Valley's rights-of-way within Native allotments.[Footnote 21]
(See table 1 and fig. 2.) In each of these cases, BIA and/or the
allottee believes that Copper Valley has failed to obtain permission
for electric lines on Native property. These conflicts exist for three
reasons. First, in 5 cases BLM and Alaska Realty have applied the
relation back doctrine to invalidate or question Copper Valley's
rights-of-way. Second, conflict exists in 6 cases because Interior does
not recognize rights-of-way to install electric lines granted by the
State of Alaska to Copper Valley within certain highway easements that
were issued by the federal government to the state. Third, conflict
exists in 3 cases because Copper Valley constructed electric lines
across Native allotments even though they were never issued a right-of-
way. Additionally, there are 4 other cases where Alaska Realty is
requesting that Copper Valley obtain rights-of-way without evidence
that Copper Valley is in trespass.
Table 1: Cases Where Conflict Exists between Native Allotments and
Copper Valley's Electric Lines:
BLM and Alaska Realty have applied the relation back doctrine;
Name of Native allotment applicant: Markle F. Ewan, Sr;
Native allotment serial number: A-046337.
BLM and Alaska Realty have applied the relation back doctrine;
Name of Native allotment applicant: Peter Ewan[A];
Native allotment serial number: AA-5896-A.
BLM and Alaska Realty have applied the relation back doctrine;
Name of Native allotment applicant: Evelyn Hash Koonuk;
Native allotment serial number: AA-7242-B.
BLM and Alaska Realty have applied the relation back doctrine;
Name of Native allotment applicant: Carol J. Gurtler Holt;
Native allotment serial number: AA-7552.
BLM and Alaska Realty have applied the relation back doctrine;
Name of Native allotment applicant: Tazlina Joe;
Native allotment serial number: A-031653.
State issued utility rights-of-way within federally granted highway
easements;
Name of Native allotment applicant: Etta Bell;
Native allotment serial number: AA-6014-B.
State issued utility rights-of-way within federally granted highway
easements;
Name of Native allotment applicant: Bacille George;
Native allotment serial number: A-043380.
State issued utility rights-of-way within federally granted highway
easements;
Name of Native allotment applicant: Howard J. Jerue;
Native allotment serial number: AA-7059.
State issued utility rights-of-way within federally granted highway
easements;
Name of Native allotment applicant: Bernice E. Mai;
Native allotment serial number: AA-7600.
State issued utility rights-of-way within federally granted highway
easements;
Name of Native allotment applicant: Harvey B. Seversen;
Native allotment serial number: AA-8032.
State issued utility rights-of-way within federally granted highway
easements;
Name of Native allotment applicant: Roxy Venner;
Native allotment serial number: AA-6034.
Copper Valley was never issued a right-of-way;
Name of Native allotment applicant: Frank Gurtler;
Native allotment serial number: AA-7553.
Copper Valley was never issued a right-of-way;
Name of Native allotment applicant: Mary Ann Gurtler;
Native allotment serial number: AA-7554.
Copper Valley was never issued a right-of-way;
Name of Native allotment applicant: Florence Sabon;
Native allotment serial number: AA-7336.
Sources: GAO analysis of BLM, BIA, Copper Valley, and Alaska Realty
data.
[A] This parcel encompasses 29.02 acres. In 1992, BLM reinstated a
claim by Peter Ewan for an adjoining 130 acres, designated as Parcel B
(AA-5896-B). As of April 2004, BLM was working with the State of
Alaska for a reconveyance of this property. Depending on the specific
terms of the reconveyance from the state, Parcel B may eventually have
the same right-of-way conflict as Parcel A.
[End of table]
Figure 2: Location of the 14 Cases Where Conflict Exists between
Native Allotments and Copper Valley's Electric Lines:
[See PDF for image]
[End of figure]
BLM and Alaska Realty Have Applied the Relation Back Doctrine:
Conflict exists in five cases where BLM and Alaska Realty have
invalidated or questioned Copper Valley rights-of-way because a Native
allottee's use and occupancy of the land predated the right-of-way.
(See table 2.)
Table 2: Native Allotments Where Conflicts Exist Because BLM and
Alaska Realty Have Applied the Relation Back Doctrine:
BLM applied the relation back doctrine[A];
Name of Native allotment applicant: Evelyn Hash Koonuk;
Native allotment serial number: AA-7242-B;
Claimed use and occupancy: 1962;
Right-of-way granted: 1965;
Native allotment application filed: 1972[B];
Native allotment certificate issued: 1996;
BLM action to null and void right-of-way: 1992.
BLM applied the relation back doctrine[A];
Name of Native allotment applicant: Carol J. Gurtler Holt;
Native allotment serial number: AA-7552;
Claimed use and occupancy: 1964;
Right-of-way granted: 1976;
Native allotment application filed: 1972[B];
Native allotment certificate issued: 1995;
BLM action to null and void right-of-way: 1995.
Alaska Realty applied the relation back doctrine;
Name of Native allotment applicant: Markle F. Ewan, Sr;
Native allotment serial number: A-046337;
Claimed use and occupancy: 1947;
Right-of-way granted: 1958;
Native allotment application filed: 1958;
Native allotment certificate issued: 1975;
BLM action to null and void right-of-way: No action.
Alaska Realty applied the relation back doctrine;
Name of Native allotment applicant: Peter Ewan;
Native allotment serial number: AA-5896-A;
Claimed use and occupancy: 1936;
Right-of-way granted: 1958;
Native allotment application filed: 1970;
Native allotment certificate issued: 1983;
BLM action to null and void right-of-way: No action.
Alaska Realty applied the relation back doctrine;
Name of Native allotment applicant: Tazlina Joe;
Native allotment serial number: A-031653;
Claimed use and occupancy: 1936;
Right-of-way granted: 1958;
Native allotment application filed: 1955;
Native allotment certificate issued: 1960;
BLM action to null and void right-of-way: No action.
Sources: GAO analysis of BLM and Alaska Realty data.
[A] In 1991 and 1992, BLM also applied the relation back doctrine to
declare null and void Copper Valley rights-of-way across the Howard
Adams (AA-6726) and Jack Tenas (AA-7164) Native allotments,
respectively. However, the conflicts created by BLM's actions in these
two cases have been resolved by actions taken by Native allottees and
Copper Valley.
[B] Evelyn Hash Koonuk and Carol J. Gurtler Holt signed their Native
allotment applications in 1971. However, their applications were not
received by BLM until 1972.
[End of table]
In two of these cases, conflict exists between Native allotments and
Copper Valley because BLM has applied the relation back doctrine to
declare Copper Valley rights-of-way null and void. For example,
* In 1992, BLM voided Copper Valley's right-of-way across Evelyn Hash
Koonuk's allotment that Copper Valley held for over 27 years. BLM
determined that even though her application for the allotment was not
filed until almost 7 years after the right-of-way was issued her use
and occupancy predated the right-of-way. (See fig. 3.)
* In 1995, BLM voided Copper Valley's right-of-way across Carol Holt's
allotment that it held for 19 years. Based on the date of use and
occupancy claimed in Carol Holt's application, BLM determined that she
had rights prior to Copper Valley. (See fig. 4.)
Both of these allotments were legislatively approved under ANILCA. In
these two cases, officials from Copper Valley stated that they believe
that the relation back doctrine has, in effect, voided the requirement
in ANILCA that Native allotments are to be approved subject to valid
existing rights. In Copper Valley's view, their rights-of-way are valid
rights, existing at the time the Native allotment applications were
approved. Copper Valley also believes that the relation back doctrine
should be repealed, or at the very least, that an allottee's claimed
date of use and occupancy should not be used to declare their rights-
of-way null and void.
Figure 3: Key Milestones for Evelyn Hash Koonuk's Native Allotment and
Copper Valley's Right-of-way:
[See PDF for image]
[End of figure]
Figure 4: Key Milestones for Carol J. Gurtler Holt's Native Allotment
and Copper Valley's Right-of-way:
[See PDF for image]
[End of figure]
In three other cases conflict exists where Alaska Realty considers
Copper Valley's rights-of-way invalid because it has applied the
relation back doctrine to grant priority to Native allottees whose use
and occupancy of the land began before the right-of-way was issued. In
these three cases, the allotments were certified prior to the IBLA's
introduction of the relation back doctrine in 1987. Additionally, the
applications for these allotments were adjudicated under the 1906 Act;
they were not legislatively approved under ANILCA. To date, BLM has
only used the relation back doctrine to invalidate rights-of-way within
Native allotments that were certified after 1987 and has not gone back
to re-examine rights-of-way across allotments that already have been
certified. However, in these cases, a BIA official told us that because
the allottees' use and occupancy of the land predated Copper Valley's
right-of-way, Alaska Realty does not recognize the right-of-way across
Markle Ewan and Tazlina Joe's allotments as valid. In the case of Peter
Ewan's allotment, a 1988 letter from BIA to Copper Valley stated the
following, "While [Copper Valley] was granted a [right-of-way] across
the subject lands in 1958, this office believes it was granted
erroneously, since Mr. Ewan had by this time already established his
use and occupancy." (See fig. 5.) Alaska Realty is requesting that
Copper Valley obtain a new right-of-way across these allotments.
However, according to Interior's Alaska Office of the Solicitor, Alaska
Realty does not have the authority to require utility companies to
obtain a new right-of-way until Interior has taken the administrative
action to declare an existing right-of-way null and void. Interior has
yet to take this action.[Footnote 22]
Figure 5: Copper Valley's Right-of-way Crossing Graves on Peter Ewan's
Native Allotment (May 2004):
[See PDF for image]
[End of figure]
In addition to the five cases with conflicts discussed earlier, BLM has
also applied the relation back doctrine to declare Copper Valley's
rights-of-way within two other Native allotments null and void.
However, the conflicts created by BLM's actions in these two additional
cases have been resolved by actions taken by Native allottees and
Copper Valley. In one case, in 1992, BLM voided Copper Valley's right-
of-way across Jack Tenas' allotment that it held for 34 years. Six
years after BLM's decision, Jack Tenas' allotment was deeded to a non-
Native, therefore ending the dispute between Copper Valley and the
Native allottee. According to BIA officials, when a Native allotment is
sold to a non-Native, BIA no longer has a fiduciary responsibility;
including pursuing damages for past trespass actions. In the second
case, BLM declared Copper Valley's right-of-way across Howard Adams'
allotment null and void 7 years after it was granted. However,
following BLM's decision, Copper Valley used BIA procedures to
negotiate a valid right-of-way with the Native allottee. In contrast to
the Evelyn Hash Koonuk and Carol Holt allotments, where BLM also
applied the relation back doctrine, the Jack Tenas and Howard Adams
allotments were adjudicated under the 1906 Act, because they did not
meet the criteria for legislative approval under ANLICA.
Finally, while conflicts created by using the relation back doctrine to
declare Copper Valley rights-of-way null and void are relatively few,
the possibility exists that future applications of the doctrine will
create additional conflicts. First, approximately 3,000 Native
allotment applications are still pending. Some of these pending
allotments may give rise to additional conflicts in the Copper River
area. Second, Interior has not systematically re-examined all the
allotments certified before 1987, to determine if the relation back
doctrine is applicable. Although a few cases have been identified so
far in the Copper River area, others may exist. Officials we spoke with
at the Office of the Solicitor in Alaska stated that Interior is not
precluded from taking action under the relation back doctrine to void
rights-of-way for allotments certified prior to 1987.
Interior Does Not Recognize Copper Valley's State Issued Rights-of-way
within Certain Federally Granted Highway Easements:
There are six cases where conflict exists regarding the status of
Copper Valley's rights-of-way within Native allotments because Copper
Valley has a state--but not a federal--right-of-way within a highway
easement granted by the federal government to Alaska. (See table 3.)
The federal government transferred the easements for the Richardson and
Old Edgerton Highways to the State of Alaska under the 1959 Alaska
Omnibus Act.[Footnote 23]
Table 3: Cases with State Issued Utility Rights-of-way within Federally
Granted Highway Easements That Cross Native Allotments:
Name of Native allotment applicant: Bacille George;
Native allotment serial number: A-043380;
Federally granted highway easement: Richardson Highway;
State right-of-way granted: 1962.
Name of Native allotment applicant: Etta Bell;
Native allotment serial number: AA-6014-B;
Federally granted highway easement: Old Edgerton Highway;
State right-of-way granted: 1983.
Name of Native allotment applicant: Howard J. Jerue;
Native allotment serial number: AA-7059;
Federally granted highway easement: Old Edgerton Highway;
State right-of-way granted: 1983.
Name of Native allotment applicant: Bernice E. Mai;
Native allotment serial number: AA-7600;
Federally granted highway easement: Old Edgerton Highway;
State right-of-way granted: 1983.
Name of Native allotment applicant: Harvey B. Seversen;
Native allotment serial number: AA-8032;
Federally granted highway easement: Old Edgerton Highway;
State right-of-way granted: 1983.
Name of Native allotment applicant: Roxy Venner;
Native allotment serial number: AA-6034;
Federally granted highway easement: Old Edgerton Highway;
State right-of-way granted: 1983.
Sources: GAO analysis of BLM and Copper Valley data.
Note: Five of the six allotment certificates contain a reservation for
a highway easement. Howard J. Jerue's allotment certificate does not
contain a reservation for the Old Edgerton Highway. However, his use
and occupancy began in 1966, 7 years after the federal government
conveyed the highway easement to the State of Alaska. For two of the
six allotments--Bacille George and Etta Bell--the use and occupancy
predated all, or a portion of, the road withdrawals for the Richardson
and Old Edgerton Highways. According to a 1982 opinion by Interior's
Alaska Office of the Solicitor, when a Native's use and occupancy
predates the road withdrawal the federal government must seek a
reconveyance of the road easement from the State of Alaska under
Aguilar procedures. In these circumstances, the road easement would be
voided and the Native allottee would be awarded an allotment without
any reservation for a road easement. However, the allottees for Bacille
George's and Etta Bell's Native allotments agreed to have their
allotments made subject to the highway easement rather than forcing a
reconveyance from the state.
[End of table]
In 1962 and 1983, the State of Alaska granted Copper Valley utility
rights-of-way within these federally granted highway easements. For
example, in 1983, the State of Alaska granted Copper Valley a utility
right-of-way within the Old Edgerton Highway easement that crosses
Howard Jerue's allotment. (See fig. 6.) Then in 1989, 30 years after
Alaska became a state and was granted the highway easements from the
federal government, Interior's Alaska Office of the Solicitor issued an
opinion concerning whether a federal grant of a highway easement to the
State of Alaska authorized the state to grant a right-of-way within the
highway easement to a utility.[Footnote 24] The Solicitor concluded
that federal, not state, law governed the issue and that under federal
law, certain federally granted highway easements did not convey to the
state the authority to grant rights-of-way for utility lines because
they are not structures necessary for the use of highway easements but
are new uses being imposed on the land. The Solicitor relied on a
decision of the Court of Appeals for the Ninth Circuit, holding that a
right-of-way issued under Revised Statute 2477[Footnote 25] does not
include the right to install utility lines.[Footnote 26] The
Solicitor's opinion stated that the utility must apply for a federal
right-of-way--in this case from BIA because the power lines crossed a
Native allotment.
Figure 6: Copper Valley's Underground Electric Line Crossing Howard
Jerue's Native Allotment (May 2004):
[See PDF for image]
[End of figure]
Relying on the Solicitor's opinion, Alaska Realty is now requesting
that Copper Valley apply for rights-of-way from BIA on behalf of the
allottee where their electric lines are located within highway
easements that cross Native allotments. Alaska Realty has taken the
position, supported by Interior, that Copper Valley is trespassing on
the allotment because it installed electric lines without acquiring a
federal right-of-way across these allotments. Copper Valley, however,
maintains that its state issued utility easements are sufficient.
Officials from Copper Valley told us that they believe that their
rights-of-way across these six allotments are adequate, pointing to a
1983 Alaska Supreme Court decision that found electric line
construction was an incidental and subordinate use of a highway
easement and that an additional right-of-way from the landowner was not
necessary.[Footnote 27]
Copper Valley Constructed Electric Lines Even Though They Were Never
Issued a Right-of-way:
In three cases conflict exists because Copper Valley built an electric
line across Native allotments where a right-of-way had not been issued.
(See table 4.) In 1965, Copper Valley filed a right-of-way application
with BLM for an electric distribution line, which was built 2 years
later. However, it took BLM until 1982, or 17 years, to act on Copper
Valley's application. In the meantime, several Native allotment
applications were filed where Copper Valley had constructed its
electric lines. BLM received Native allotment applications from Frank
Gurtler, Mary Ann Gurtler, and Florence Sabon in 1972, and they were
subsequently approved in 1983 and 1984. In addition, in 1979, BLM and
BIA signed a Memorandum of Understanding that clarified jurisdictional
responsibilities for granting rights-of-way across pending Native
allotments. Under this memorandum and in accordance with BLM state
director policy, Copper Valley was to have obtained BIA concurrence
before BLM could grant a right-of-way across a pending Native
allotment. As such, in 1982 when BLM acted on Copper Valley's right-of-
way application it determined that Copper Valley's right-of-way
application for the existing electric line would be held for rejection
where it crossed the land of Frank Gurtler, Mary Ann Gurtler, and
Florence Sabon unless Copper Valley received BIA approval to cross
lands that were, at the time, pending approval as Native
allotments.[Footnote 28]
Table 4: Native Allotments in Which Copper Valley Was Never Issued a
Valid Right-of-way:
Name of Native allotment applicant: Frank Gurtler;
Native allotment serial number: AA-7553;
Claimed use and occupancy: 1963;
Native allotment application filed[A]: 1972;
Native allotment approved: 1984;
Native allotment certificate issued: 1984.
Name of Native allotment applicant: Mary Ann Gurtler;
Native allotment serial number: AA-7554;
Claimed use and occupancy: 1964;
Native allotment application filed[A]: 1972;
Native allotment approved: 1983;
Native allotment certificate issued: 1984.
Name of Native allotment applicant: Florence Sabon;
Native allotment serial number: AA-7336;
Claimed use and occupancy: 1954;
Native allotment application filed[A]: 1972;
Native allotment approved: 1983;
Native allotment certificate issued: Pending.
Sources: GAO analysis of BLM, BIA, Alaska Realty, and Copper Valley
data.
Note: In 1982, BLM determined that Copper Valley's right-of-way
application for the existing electric line would be held for rejection
where it crossed Nicolas Tyone's (AA-6495) unapproved Native allotment
unless Copper Valley received BIA approval to cross land that was, at
the time, pending approval as a Native allotment. Because Copper Valley
did not obtain BIA approval, BLM's decision to reject Copper Valley's
application where the right-of-way crossed Nicolas Tyone's Native
allotment took effect. However in 1987, Copper Valley applied to BIA
for a right-of-way across this allotment, which was granted in 1996.
[A] Florence Sabon, Frank Gurtler, and Mary Ann Gurtler signed their
Native allotment applications in 1971. However, their applications were
not received by BLM until 1972.
[End of table]
According to BIA officials and Interior records, Copper Valley did not
obtain BIA approval for a right-of-way across these pending allotments.
Because Copper Valley did not obtain BIA approval, BLM's decision to
reject Copper Valley's application where the right-of-way crossed the
three Native allotments took effect. Following BLM's 1982 decision, the
applications for the three Native allotments were approved by
BLM.[Footnote 29] Since BLM never granted Copper Valley a right-of-way
through these allotments, Alaska Realty is requesting that Copper
Valley obtain a valid utility right-of-way for these electric lines.
Copper Valley officials noted that even if BLM had promptly granted the
right-of-way prior to the filing of the Native allotment applications,
the relation back doctrine could presumably now have been applied to
invalidate their right-of-way. The claimed use and occupancy for the
three allotments all predate Copper Valley's 1965 right-of-way
application. However, since Copper Valley was not granted a right-of-
way across these allotments they are not examples of the relation back
doctrine. In 1982, BLM told Copper Valley to obtain BIA concurrence to
cross the pending Native allotments. Over 20 years later, that is still
essentially what Copper Valley needs to do. Alaska Realty maintains
that Copper Valley needs to obtain a right-of-way for its electric
lines across these allotments in accordance with BLM and BIA
regulations and policies.
Alaska Realty Is Pursuing Four Other Cases Against Copper Valley
without Evidence of a Trespass:
In four cases, Alaska Realty has requested that Copper Valley obtain
rights-of-way even though we believe Alaska Realty lacks evidence that
the company's electric lines cross a Native allotment. Since 1996,
through correspondence and in-person meetings, Alaska Realty has
requested that Copper Valley resolve conflicts over four allotments
despite having insufficient evidence that a Copper Valley right-of-way
was in conflict with a Native allotment. (See table 5.) Over the years,
Alaska Realty contractors developed a list of Native allotments where
it maintains that Copper Valley needs to negotiate rights-of-way.
Representatives from Alaska Realty told us that they did not know what
criteria were used to place allotments on the list; however, some of
the allotments were added to the list because Copper Valley had
requested a right-of-way.
Table 5: Native Allotments for Which Alaska Realty Has Requested Copper
Valley Obtain Rights-of-way without Conclusive Evidence of Trespass:
Name of Native allotment applicant: Adam Bell;
Native allotment serial number: AA-2068-A;
Status: Conflict does not exist.
Name of Native allotment applicant: Verina Estes;
Native allotment serial number: AA-8250;
Status: Conflict does not exist.
Name of Native allotment applicant: Derira George;
Native allotment serial number: A-023391;
Status: Appears to be no conflict.
Name of Native allotment applicant: Caroline L. Mackey;
Native allotment serial number: AA-7102;
Status: Insufficient evidence if conflict exists.
Sources: GAO analysis of Alaska Realty, BLM, and Copper Valley data.
[End of table]
Without proper surveys of Copper Valley electric lines, Native
allotment boundaries, and highway rights-of-way it is impossible to
determine whether Copper Valley is in trespass. In all four cases,
Alaska Realty was unable to demonstrate that it had investigated and
documented the location of electric lines and relevant allotment
boundaries. For example, Alaska Reality has pursued Copper Valley to
obtain a right-of-way across Derira George's allotment even though
Alaska Realty cannot document that it performed an investigation to
determine if Copper Valley's rights-of-way conflict with the Native
allotment. Based on our review of the Master Title Plat, discussions
with BLM, and an inspection of the land, it appears that an electric
line does not cross this allotment and, therefore, that a conflict does
not exist. A professional survey would be required to confirm our
preliminary determination.
In two other cases, Alaska Realty is requesting that Copper Valley
obtain rights-of-way even though electric lines do not cross Native
allotments. Although Copper Valley first initiated the effort to obtain
rights-of-way across Adam Bell and Verina Estes's Native allotments,
Alaska Realty did not investigate to determine if Copper Valley was in
trespass. We reviewed the BLM's adjudication file for Adam Bell's
allotment and found a 1999 BLM decision concluding that the boundary of
Adam Bell's allotment ended at the highway right-of-way; therefore, the
highway right-of-way does not cross the allotment. In addition, our
examination of the allotment found that Copper Valley's electric lines
appeared to be within the highway right-of-way. A similar review of
Verina Estes' BLM adjudication file found that Copper Valley's electric
lines do not cross the Native allotment. Evidently, the original Master
Title Plat for this allotment shows Copper Valley's electric lines
traversing a portion of the allotment. However, in 1989, BLM realized
that the Master Title Plat for this Native allotment was inaccurate and
that the electric lines do not conflict with Verina Estes' allotment.
In the final case, Alaska Realty has requested that Copper Valley
obtain a right-of-way across Caroline Mackey's allotment without
evidence of the electric line's exact location. Alaska Realty's file
has a 1987 BIA appraisal report that adequately documents an electric
line within the allotment without a valid right-of-way. However, in
1996, the Native allotment was partitioned in half and divided equally
between a Native heir and a non-Native heir. The east side of the
allotment belongs to a Native heir and remains under BIA oversight,
while the west side of the allotment was transferred into private
ownership and is not under BIA oversight. Alaska Realty is currently
requesting Copper Valley to obtain a right-of-way for this allotment
even though there is no evidence, such as a survey, to show the precise
location of the electric line within the former Caroline Mackey Native
allotment. This type of documentation is important because if the
electric line is within the unrestricted side of the allotment, Alaska
Realty has no authority to pursue Copper Valley for trespass.
Due to the frequent turnover of staff among its realty service
providers in Alaska and the specialized nature of Native land
transactions, BIA has recognized the need to provide realty training
and technical assistance for its realty service providers. In March
2004, BIA's Alaska Region Realty Office held a basic realty training
course for its realty service providers in the state. The agenda for
the training course covered the basic processes and procedures of
realty transactions, such as sales, mortgages, rights-of-way, leases,
and trespass. According to the BIA's Alaska Regional Realty Office,
this was the first year that BIA offered the basic realty training
course. The course's section on trespass included a discussion of the
types of trespass, how to conduct a site visit and investigation of the
alleged trespass, a field examination checklist, and notices to the
trespasser about the unauthorized use of the land. While BIA's training
materials provided general information on trespass, the materials did
not provide specific information on trespasses involving rights-of-way.
For example, the training materials did not include information on the
types of evidence that should be obtained to determine if a conflict
exists involving rights-of-way, such as the exact location of electric
lines, and the boundaries of Native allotments and highway easements.
Existing Remedies Available to Resolve Disputes over the Validity of
Copper Valley Rights-of-way within Native Allotments Have Produced
Limited Results:
While the resolution of a number of these conflicts has been
intermittently pursued since the mid-1990s, only a few cases have been
resolved using existing remedies. Copper Valley currently has three
remedies available to it to resolve conflicts. It could (1) negotiate
rights-of-way with Native allottees in conjunction with BIA or its
realty service provider; (2) relocate its electric lines outside of the
Native allotment; or (3) exercise the power of eminent domain, also
known as condemnation, to acquire the land. Since the mid-1990s, Copper
Valley has negotiated rights-of-way for three Native allotments;
however, it has not relocated any of its electric lines outside of
allotments and has been reluctant to exercise eminent domain to resolve
other conflicts. Finally, in addition to remedies available to Copper
Valley, the federal government could force the resolution of these
conflicts by bringing trespass actions against Copper Valley.
Since the mid-1990s, Few Cases Have Been Resolved Using Existing
Remedies:
While there are several options currently available to resolve
conflicts between Native allotments and Copper Valley rights-of-way,
these remedies have produced limited results. Under the first option,
Copper Valley can negotiate with Alaska Realty to secure a right-of-way
across a Native allotment. Using this remedy, Copper Valley was able to
negotiate and reach an agreement for rights-of-way across 3 of 13
Native allotments on which it had begun negotiations.[Footnote 30]
Copper Valley officials noted that historically, cooperative utilities
in Alaska do not purchase rights-of-way or easements from members.
According to Copper Valley's bylaws and tariffs, as a condition of
service, members or the legal property owner shall without charge to
Copper Valley "execute an easement providing for a suitable right-of-
way for the Association distribution lines crossing the owner's
property and providing service to the consumer."
Since the mid-1990s, Copper Valley began discussions with Alaska Realty
to obtain rights-of-way within 13 Native allotments.[Footnote 31]
Copper Valley had 9 of these Native allotments surveyed, the first step
in obtaining a right-of-way grant. Ultimately, BIA appraised 7 of these
allotments, and Copper Valley was able to reach an agreement for
rights-of-way across only 3 Native allotments. The other 4 cases that
were appraised remain in conflict, and Copper Valley and the Native
allottees have been unable to agree on the terms of the proposed right-
of-way. For example, we spoke with heirs or allottees from Mary Ann
Gurtler's and Carol Holt's allotments who said that for several years
they had been negotiating with BIA, Alaska Realty, and Copper Valley in
an attempt to get electric service to their homes and a right-of-way
for the electric lines that cross their allotments. The allottees claim
that Copper Valley is denying them electric service because of all of
the unresolved conflicts with the rights-of-way in the area. They also
noted that, at this point in time, all they want is to get electric
service and that they are willing to waive compensation for a right-of-
way. Copper Valley in its comments to us disagreed with the allottees'
statements and noted that the association has the goal of servicing
all potentially eligible customers in its service area.
While the amount paid to an allottee for the use of the land in a
right-of-way is generally a couple of thousand dollars, the process for
obtaining a right-of-way can be costly and time consuming. Copper
Valley claims that the cost of negotiating rights-of-way and
compensating the allottees ranges from $10,000 to $30,000 in surveying,
legal, and other administrative costs per allotment and may take
several years to complete. Copper Valley is concerned that purchasing
rights-of-way across Native allotments will, over time, increase
electric rates for members. It is also concerned that purchasing
rights-of-way from select members would alienate members who are not
compensated yet have to pay a higher electric bill for those who do.
Under the second option--relocating its electric lines outside of
Native allotments--Copper Valley officials noted that they had not
removed electric lines from Native allotments as a way to resolve
conflicts over rights-of-way. Removing electric power lines from a
Native allotment and relocating them elsewhere raises cost and
environmental concerns. Relocating electric lines would scar the land
and possibly damage the surrounding areas due to heavy equipment
traversing through the allotment. Copper Valley does not view this
option as very practical given that, in many areas, Native allotments
border the highway on both sides, leaving few options for where to
relocate the lines.
Under the third option, Copper Valley has the authority to resolve
conflicts through condemnation pursuant to 25 U.S.C. § 357, in
conjunction with Alaska Stat. § 42.05.631.[Footnote 32] Copper Valley
is opposed to condemnation and is reluctant to secure a right-of-way in
this manner for two reasons. First, officials maintain that Copper
Valley does not have the funds to compensate the allottees for the land
condemned. Second, Copper Valley believes that condemnation is not
politically feasible and may damage relationships with the community
they serve.
In summary, Copper Valley officials maintain that the options currently
available to resolve conflicts over rights-of-way within Native
allotments are too costly, impractical, and/or potentially damaging to
relationships with the community. Furthermore, Copper Valley takes the
position that on principle they should not have to bear the cost of
resolving conflicts that they believe the federal government caused by
applying the relation back doctrine and by failing to recognize state
issued rights-of-way within federally granted highway easements. Copper
Valley has stopped trying to settle these disputes and is now seeking
legislation to resolve the conflicts.
Federal Government Is Unlikely to Bring Trespass Actions against Copper
Valley:
In addition to remedies available to Copper Valley, the federal
government has the option of resolving these conflicts by bringing
trespass actions against Copper Valley to require that it relocate its
electric lines and pay damages to Native allottees. For example, for
the Evelyn Hash Koonuk allotment, the Interior Alaska Office of the
Solicitor could recommend to the Justice Department that the federal
government bring a trespass action against Copper Valley because it has
not yet negotiated a valid right-of-way. In this case, BLM declared
null and void Copper Valley's 1965 right-of-way through Ms. Koonuk's
allotment, even though Copper Valley had obtained its right-of-way 7
years before Ms. Koonuk filed her allotment application. According to
the Interior Alaska Office of the Solicitor, the federal government is
unlikely to pursue this course of action because it would provide
Copper Valley the opportunity to raise its concerns about the relation
back doctrine and other legal issues in federal court. For this reason,
the Department of Justice is generally unwilling to bring trespass
cases against electric companies.
Legislative Alternatives to Resolve Conflicts between Native Allotments
and Copper Valley Rights-of-way Have Been Identified:
Several legislative alternatives to resolve conflicts over Copper
Valley rights-of-way within Alaska Native allotments have been
identified. Copper Valley representatives, Alaska Native advocates, and
GAO have identified alternatives including legislation to: (1) change
Interior's application of the relation back doctrine with respect to
Alaska Native allotments, (2) allow the U.S. government to be sued with
regard to Alaska Native allotments so that legal challenges to the
relation back doctrine can be heard in federal court, (3) ratify the
rights-of-way granted by the State of Alaska within its highway
easements, and (4) establish a federal fund to pay for rights-of-way
across Native allotments. These alternatives may be combined, and we do
not hold an opinion as to which, if any, of these alternatives might be
preferable. We also note that some of these individual legislative
remedies would address only one specific cause of the conflicts between
Native allottees and Copper Valley rights-of-way. Further, while we did
not determine the financial costs or the legal ramifications on the
property rights of the Alaska Native allottees associated with any of
these options, such costs and legal ramifications would need to be
assessed.
Alternative 1: Change Interior's Application of the Relation Back
Doctrine to Alaska Native Allotments:
Congress could enact legislation directing Interior to use the date an
allotment application is filed, rather than the date an allottee
claimed initial use and occupancy of the land, to determine the rights
of allottees and holders of rights-of-way. This option, which would
rescind application of the relation back doctrine to Native allotments,
would allow Copper Valley to keep its federal rights-of-way as long as
the right-of-way was issued before the allotment application was filed.
Implementing this option would likely benefit Copper Valley by favoring
the holders of rights-of-way and might result in legal challenges by
Native allottees claiming that this action constitutes a taking of
their property. If such challenges were successful, the federal
government would have to compensate Native allottees.
Alternative 2: Allow the U.S. Government to be Sued with Regard to
Alaska Native Allotments:
A second option is for Congress to allow the U.S. government to be sued
with regard to Alaska Native allotments by waiving the U.S.
government's sovereign immunity so that legal challenges involving the
relation back doctrine can be heard in federal court. Under this
option, IBLA decisions regarding the relation back doctrine could be
appealed to the courts, providing an opportunity for judicial review of
these administrative decisions. While this option would allow Copper
Valley and others to challenge Interior's administrative decisions, the
courts may well uphold Interior's decisions. Moreover, appeals would
entail legal costs to Copper Valley and the federal government. In
addition, even if Copper Valley were to prevail, a solution to the
conflict may take years to achieve as these cases make their way
through the courts. Also, a decision would need to be made regarding
whether this alternative would only apply to future IBLA decisions or
whether old cases could also be refiled. For this alternative to apply
to old cases, like the Copper Valley relation back cases from the
1990s, a special exemption would need to be crafted that waived the
statute of limitations for these older cases.
Alternative 3: Ratify Rights-of-way Granted by the State of Alaska
within Certain Federally Granted Highway Easements:
Congress could ratify the rights-of-way granted by the State of Alaska
within certain federally granted highway easements. This option could
provide Copper Valley with a valid right-of-way across the allotments
dating back to the time the state right-of-way was granted. Legislation
providing a right-of-way across Native allotments would have legal and
financial implications. For example, such legislation might constitute
a taking, for which compensation is required.
Alternative 4: Establish a Federal Fund to Pay for Rights-of-Way:
A fourth option is to establish a federal fund to pay for rights-of-way
across Native allotments. This option would benefit both Native
allottees and Copper Valley by compensating allottees for use of their
land and by not requiring Copper Valley to pay for the right-of-way
across a Native allotment. Under this option, the federal government
and taxpayers would bear the entire cost of resolving the conflicts.
However, the cost of alternative four would be similar to the combined
cost of alternatives one and three if they are determined to be takings
that require federal compensation.
Conclusion:
Some of the conflicts over the validity of Copper Valley's rights-of-
way within Native allotments date back over 30 years. Since the mid-
1990s, Alaska Realty, as the new realty service provider for BIA, has
been pursuing Copper Valley to resolve these conflicts. Despite trying
to resolve these conflicts intermittently over the past 9 years,
existing remedies have generally been unsuccessful in settling disputes
between Native allottees and Copper Valley. We have identified several
legislative alternatives to address the issues at the root of these
conflicts. While we did find a number of cases where conflicts
currently exist over the validity of Copper Valley rights-of-way within
Native allotments, we also found cases where Alaska Realty is
requesting Copper Valley to obtain valid rights-of-way without
sufficient proof that a trespass actually exists. In these cases, we
believe Alaska Realty has created unnecessary conflict by requesting
that Copper Valley obtain rights-of-way without adequately
investigating and documenting the boundaries of Native allotments and
the location of electric lines and highway rights-of-way. BIA's ability
to prescribe specific performance standards for Alaska Realty is
limited and, in some cases, prohibited under the Indian Self-
Determination and Education Assistance Act, as amended. While BIA can
and does provide training and technical assistance to its realty
service providers in Alaska, the March 2004 training materials did not
include information on the types of evidence that should be developed
before pursuing an alleged trespass involving rights-of-way, such as
the exact location of electric lines, and the boundaries of Native
allotments and highway rights-of-way.
Recommendations for Executive Action:
To ensure that potential conflicts over the validity of rights-of-way
within Alaska Native allotments are not escalated unnecessarily, we are
recommending that the Secretary of the Interior direct the Assistant
Secretary for Indian Affairs to develop, as part of BIA's training and
technical assistance provided to its realty service providers in
Alaska, a training module identifying the types of evidence that should
be developed before pursuing an alleged trespass involving rights-of-
way.
Agency Comments and Our Evaluation:
We provided copies of our draft report to Interior, the State of
Alaska, and Copper Valley. Interior, the State of Alaska, and Copper
Valley provided written comments. (See appendixes IV through VI,
respectively, for the full text of the comments received from these
three entities and our responses.) Interior and Copper Valley
specifically commented on and agreed with our recommendation. The State
of Alaska did not specifically comment on our recommendation, but did
comment on our four legislative alternatives. Interior and Copper
Valley also provided technical comments that we incorporated where
appropriate.
Interior agreed with our recommendation that BIA develop a training
module identifying the types of evidence that should be developed
before pursuing an alleged trespass involving rights-of-way. Interior
noted that BIA's Alaska Region Realty Office in conjunction with
Interior's Alaska Office of the Solicitor would include evidentiary
standards that should be developed before pursuing an alleged trespass
involving rights-of-way. Interior did not comment on any of the four
legislative alternatives.
The State of Alaska commented that the GAO report was laudable in its
breadth of analysis of conflicts between Alaska Native allotments and
rights-of-ways. The state commented on each of the alternatives,
emphasizing the benefits and limitations of each alternative. In
particular, the state expressed support for alternative three--a
legislative solution that would include a clarification by Congress
that third party rights-of-way granted by the state within federal
highway easements are valid. The State of Alaska also noted that it is
prepared to work cooperatively with the federal government, allotment
advocates, and utility companies on a comprehensive legislative
solution that recognizes the valid existing rights of all parties.
Copper Valley agreed with our recommendation and most of the
alternatives. In its comments, Copper Valley congratulated GAO for
assembling information on all 34 Native allotments in controversy. They
noted that this section is the heart of the report and provides a
cogent summary of these cases. Copper Valley commented on each of the
alternatives and specifically noted that alternative one--changing the
application of the relation back doctrine--and alternative three should
be adopted to resolve the problems. In addition, Copper Valley also
expressed support for the establishment of a fund (alternative four),
as long as the federal government covers all costs and administrative
burdens.
As agreed with your office, unless you publicly announce the contents
of this report earlier, we plan no further distribution until 30 days
from the report date. At that time, we will send copies of this report
to the Secretary of the Interior, the Governor of the State of Alaska,
the Chief Executive Officer of Copper Valley, as well as to appropriate
Congressional Committees, and other interested Members of Congress. We
also will make copies available to others upon request. In addition,
the report will be available at no charge on the GAO Web site at
[Hyperlink, http://www.gao.gov].
If you or your staff have questions about this report, please contact
me at (202) 512-3841. Key contributors to this report are listed in
appendix VII.
Sincerely yours,
Signed by:
Barry T. Hill:
Director, Natural Resources and Environment:
[End of section]
Appendixes:
Appendix I: Objectives, Scope, and Methodology:
Based on an August 25, 2003, request from the Chairman, Senate
Committee on Appropriations, and subsequent discussions with the
Chairman's staff, we reviewed conflicts concerning the validity of the
rights-of-way of Copper Valley Electric Association within Alaska
Native (Native) allotments. Copper Valley, a rural nonprofit electric
cooperative, operates in south-central Alaska, north and east of
Anchorage. Specifically we determined (1) the number of conflicts that
exist between Alaska Native allotments and Copper Valley Electric
Association's rights-of-way and the factors that contributed to these
conflicts; (2) the extent to which existing remedies have been used to
resolve these conflicts; and (3) what legislative alternatives, if any,
could be considered to resolve these conflicts.
To determine the number of conflicts that exist between Alaska Native
allotments and Copper Valley Electric Association's rights-of-way and
the factors that contributed to these conflicts, we reviewed 34 Native
allotments identified by Copper Valley and the Alaska Realty
Consortium, a Bureau of Indian Affairs (BIA) contractor providing
realty services for Native allotments in south-central Alaska, where
either party suggested a conflict existed. To determine whether there
was an actual conflict between Native allotments and Copper Valley's
rights-of-way, we examined the Department of the Interior's Bureau of
Land Management (BLM) allotment adjudication files and all of the
rights-of-way permits (seven federal and two State of Alaska) issued to
Copper Valley for these allotments. We interviewed representatives from
BLM, BIA, and Interior's Alaska Office of the Solicitor. We also met
with officials and reviewed records from Alaska Realty, Copper Valley,
and the State of Alaska, including the Departments of Law,
Transportation and Public Facilities, and Natural Resources. In May
2004, we met with 15 Alaska Native allottees, or their representatives,
at group meetings in Glennallen and Anchorage, Alaska. We also spoke by
telephone with several other allottees that were not able to attend the
meetings.
To determine the extent to which existing remedies have been used to
resolve conflicts between Alaska Native allotments and Copper Valley
Electric Association's rights-of-way, we met with representatives from
Copper Valley, Alaska Realty, and Native allottees. We also visited
some Native allotments in question and several electric line rights-of-
way to obtain a better understanding of the physical features of
various land allotments. In addition, we reviewed records at Copper
Valley and Alaska Realty to obtain information on when Copper Valley
first initiated the right-of-way process, whether Copper Valley had
conducted a survey of the allotment, and if BIA performed any
appraisal.
To determine what legislative alternatives, if any, could be considered
to resolve these conflicts, we developed legislative alternatives based
on our analysis of federal laws and regulations, federal court rulings,
and decisions of Interior's Board of Land Appeals. In addition, we
discussed possible legislative options with federal officials in Alaska
and Copper Valley Electric Association representatives.
We conducted our work between November 2003 and June 2004 in accordance
with generally accepted government auditing standards.
[End of section]
Appendix II: Legal Appendix on the Relation Back Doctrine:
Relation back is a legal doctrine that considers an act performed at
one time to have taken place at an earlier time. In the context of
Alaska Native (Native) allotments, relation back refers to relating an
Alaska Native's rights back to the date the Native first initiated use
and occupancy rather than the date the allotment application was filed.
Under this doctrine, when a Native allotment application is filed, the
Native allotment relates back to the time the Alaska Native began (or
claims he/she began) use and occupancy. When use and occupancy of
available land began before the granting of a highway or utility right-
of-way, the Native allotment is given priority, and the right-of-way is
deemed to be invalid. The doctrine has been applied to Native
allotments by federal courts and the Department of the Interior's Board
of Land Appeals (IBLA).
Federal District Court Cases Applying Relation Back Doctrine:
Aguilar v. United States, 474 F. Supp. 840 (D. Alaska 1979):
Alaska Natives had applied for an allotment under the Alaska Native
Allotment Act of 1906. The Department of the Interior rejected their
application because the land they claimed for the allotment had already
been conveyed to the State of Alaska. In challenging the rejection of
their allotment, the Alaska Natives claimed that the use and occupancy
upon which their allotment was based began before the conveyance of the
land to Alaska. The District Court for the District of Alaska ruled
that the fact that the Natives did not file an application for an
allotment until after the land was selected by and conveyed to Alaska
did not eliminate their preference right in the land. The court ordered
the Department of the Interior to hold a hearing to determine the facts
concerning the existence and sufficiency of the Alaska Natives' use and
occupancy. The court stated that based on the facts determined at the
hearing, if the Department of the Interior had mistakenly or wrongfully
conveyed land to the State of Alaska to which the Alaska Natives had a
superior claim, then the Department of the Interior was responsible to
recover the land.
Alaska v. 13.90 Acres of Land, 625 F. Supp. 1315 (D. Alaska 1985),
aff'd sub nom., Etalook v. Exxon Pipeline Co., 831 F.2d 1440 (9TH Cir.
1987):
An Alaska Native began to occupy the allotment at issue in 1946 and
applied for a Native allotment in 1971. The allotment was issued in
1975. In 1969, Alyeska Pipeline Company applied for rights-of-way for
the Trans-Alaska oil pipeline, including across lands occupied by the
Alaska Native. Alyeska's rights-of-way were granted in 1974, resulting
in a conflict with the Alaska Native's allotment. Alyeska subsequently
obtained rights-of-way for portions of the pipeline that crossed the
allotment from the Alaska Native and for the other portions of the
pipeline that crossed the allotment through a formal condemnation
action. In adjudicating the amount of compensation to be awarded to the
Alaska Native in the condemnation action, the District Court for the
District of Alaska disagreed with Alyeska's argument that its right-of-
way application had priority over the Alaska Native's allotment
application. The court applied the relation back doctrine, ruling that
the use and occupancy of the allotment by the Alaska Native created an
inchoate preference right that became vested upon the filing of a
timely application. Once vested, the preference relates back to the
initiation of occupancy and takes preference over competing
applications filed prior to the Native allotment application.
Selected IBLA Cases Applying the Relation Back Doctrine:
Golden Valley Electric Association (On Reconsideration) (Jennie K.
Irwin Allotment), 98 IBLA 203 (1987):
In this decision, the IBLA reconsidered its 1985 decision in which it
had reversed a BLM decision declaring a portion of a right-of-way for a
power transmission line null and void. In its 1985 decision, the IBLA
had held that the Alaska Native's allotment was subject to the
utility's right-of-way. Golden Valley Electric Ass'n, 85 IBLA 363
(1985). The IBLA reconsidered its decision in light of the Alaska
district court's decisions applying the relation back doctrine in
Aguilar v. United States, 474 F. Supp. 840 (D. Alaska 1979) and Alaska
v. 13.90 Acres of Land, 625 F. Supp. 1315 (D. Alaska 1985).
The IBLA held that an Alaska Native had a preference right to an
allotment of land commencing with the first use and occupancy of the
land. This preference right was not barred by the fact that a Native
allotment application was not filed for the land until after a right-
of-way had been granted across the land. Once the preference right
becomes vested, the preference relates back to the initiation of
occupancy and takes preference over rights-of-way or other uses of the
land filed subsequent to the commencement of use and occupancy by the
Native. Thus, in this case, where a Native allotment application was
filed after a highway right-of-way was issued, the Native allotment
related back and nullified the right-of-way that had already been
granted.
State of Alaska, Golden Valley Electric Association (Dinah Albert
Allotment), 110 IBLA 224 (1989):
Alaska and Golden Valley were granted highway and transmission rights-
of-way in the mid-1960s. Subsequently, an Alaska Native filed Native
allotment applications in 1967 and 1968, asserting use and occupancy
that initiated in 1938. The application was legislatively approved
under the Alaska National Interest Lands Conservation Act (ANILCA) in
1980. In a 1987 decision, the Bureau of Land Management (BLM) declared
the portions of the rights-of-way that crossed the allotment null and
void. In their appeal, Alaska and Golden Valley contended that the
allotment should be made subject to their rights-of-way because the
Native's use and occupancy was not open and notorious and, therefore,
was insufficient to provide notice of her claim.
The IBLA affirmed BLM's decision and held that, where an allotment was
legislatively approved, the legislative approval precluded any
additional inquiry into the facts of the Native's use and occupancy of
the land, including whether the use had been open and notorious. The
IBLA stated that although the legislative approval of the allotment was
subject to valid existing rights, the rights-of-way, approved in the
mid-1960s, cannot be considered valid existing rights since they did
not come into existence until after initiation of Albert's allotment,
which was stated in the record as 1938. The IBLA concluded that the
rights-of-way approved after the reported initiation of the Native's
use and occupancy are not valid and existing rights, and BLM,
therefore, was correct in declaring the rights-of-way null and void.
State of Alaska Department of Transportation & Public Facilities (Irene
Johnson and Jack Craig Allotments), 133 IBLA 281 (1995):
In this decision, the IBLA consolidated appeals from two separate BLM
decisions. Native allotment applications were filed by Johnson and
Craig in the early 1970s. Johnson claimed use and occupancy of the land
beginning in 1940, and Craig claimed use and occupancy beginning in
1937. A materials site right-of-way application was filed with BLM by
the State of Alaska Department of Highways in 1965, after the date
claimed for the initiation of use and occupancy of the allotments, but
before the filing of the allotment applications. The right-of-way was
granted in 1965. BLM later approved the allotment applications of
Johnson and Craig but did not issue a certificate of allotment.
Subsequently, ANILCA was enacted, and BLM held that the applications
were legislatively approved by section 905(a)(1) of ANILCA. BLM did not
state that the allotments would be subject to Alaska's materials site
right-of-way.
Alaska appealed BLM's decisions, contending that the allotments should
be subject to the right-of-way. The IBLA agreed with the state. In its
decision, the IBLA considered whether the allottees had a preference
right that related back to the initiation of use and occupancy that
preempted the right-of-way and concluded that they did not. The IBLA
stated that the authority to allot federal lands under the 1906 Native
Allotment Act is limited to vacant, unappropriated, and unreserved
nonmineral land. The IBLA ruled that, in the cases of Johnson and
Craig, the land applied for was mineral in character and thus not
available for Native allotment during the period of use and occupancy
prior to the creation of the state's right-of-way. The IBLA concluded
that the state right-of-way is a valid existing right to which the
legislative approval of the allotment was subject under section
905(a)(1) of ANILCA.
In its decision, the IBLA noted that its 1987 decision in Golden Valley
(On Reconsideration) "marked a departure from the approach espoused by
the Board in [its 1985 Golden Valley decision] and other cases, holding
that an allotment was subject to a right-of-way granted during the
period of use and occupancy, but prior to the filing of the allotment
application." 133 IBLA at 287 n.8, citing State of Alaska v. Albert, 90
IBLA 14, 21-22 (1985).
State of Alaska Department of Transportation & Public Facilities
(Goodlataw Allotment), 140 IBLA 205 (1997):
Land was withdrawn in 1953 and 1956 for power projects. In 1965, Alaska
filed an application for a channel change right-of-way using some of
these lands. BLM issued the right-of-way in 1966, subject to all valid
rights existing on the date of the grant.
In 1971, BIA filed an amended application for a Native Allotment on
behalf of Goodlataw, claiming use and occupancy commencing in 1954. In
1974, BLM advised Goodlataw that the lands embraced by his amended
application were not vacant and unreserved on the date he filed his
application or on the date he initiated use and occupancy because they
had been withdrawn by the power projects. Subsequently, BLM informed
Goodlataw that the power site withdrawal was no longer an obstacle to
ultimate approval of his application and in 1991 and 1992 issued
decisions to confirm legislative approval of his allotment application
and to declare Alaska's right-of-way null and void, respectively. In
its 1992 decision, BLM noted that the right-of-way had been issued
subject to all valid rights existing on its 1966 issuance date. BLM
stated that Goodlataw's application, which claimed use and occupancy
beginning in 1954, had begun prior to the 1965 filing of the state's
right-of-way. Since the right-of-way had been issued subject to valid
and existing rights, BLM held that the channel change right-of-way was
null and void as to lands within the Native allotment.
Alaska appealed, asserting that its right-of-way is a valid existing
right to which Goodlataw's Native allotment is subject. The IBLA agreed
with Alaska and held that, because Goodlataw's occupancy of the land
began after the land had been withdrawn, his occupancy did not
constitute a valid existing right when the right-of-way was issued to
the state. Accordingly, Goodlataw's allotment application could only
properly be approved subject to Alaska's right-of-way, and the decision
canceling the right-of-way was in error.
State of Alaska Department of Transportation & Public Facilities (Sabon
Allotment), 154 IBLA 57 (2000):
This case involved Alaska's appeal from a BLM decision declaring
Alaska's highway right-of-way null and void to the extent that it
embraced lands within a Native allotment.
In 1966, BLM issued a right-of-way to Alaska for highway purposes
(realignment of a highway), subject to "all valid rights existing on
the date of the grant." The Alaska Native, Florence Sabon, applied for
an allotment in 1971 and claimed use and occupancy starting in 1954. In
1983, BLM determined that Sabon's application had been legislatively
approved under section 905(a)(1) of ANILCA. BLM's decision also stated
that the land was valuable for oil and gas and that the allotment would
be subject to a highway easement transferred to Alaska under the Alaska
Omnibus Act. Subsequently, in a 1998 decision, BLM applied the relation
back doctrine and concluded that part of Alaska's right-of-way was null
and void due to Sabon's allotment.
In considering the state's appeal, the IBLA concluded that Alaska's
right-of-way is a valid existing right to which the Sabon allotment is
subject. The IBLA found that, at the time Sabon claimed she commenced
her use and occupancy, the land had been withdrawn from all forms of
appropriation and reserved for highway purposes by the Department of
the Interior's Public Land Order (PLO) No. 601 (14 Fed. Reg. 5048
(August 16, 1949)). Thus, her allotment could not relate back to that
time, as the land was not available. Subsequently, in 1958, PLO No.
1613 revoked PLO No. 601 and made the lands available for settlement
claims but provided an easement for highway purposes on these
previously withdrawn lands. PLO No. 1613 also prohibited the use of the
lands within the easements for other than the highways except with the
permission of the Secretary of the Interior.
The IBLA concluded that the legislative approval of Sabon's claim
constituted permission under PLO No. 1613. However, while PLO No. 1613
permitted Sabon to commence use and occupancy in 1958, it also made
that use and occupancy subject to the highway easement. Accordingly,
the IBLA reversed BLM's decision as to the portions of the right-of-way
that were located within the easement established by PLO No. 1613 and
ruled that the Sabon allotment must be subject to any portion of the
state's right-of-way within the easement.
Cases Analyzing Whether the Quiet Title Act Precludes Judicial Review
of IBLA Decisions Concerning the Relation Back Doctrine:
The IBLA decisions concerning the relation back doctrine generally
cannot be appealed in the federal courts because the courts lack
jurisdiction under the Quiet Title Act. The Quiet Title Act waives the
sovereign immunity of the United States in actions to adjudicate title
disputes involving real property in which the United States claims an
interest. However, the Quiet Title Act does not apply to "trust or
restricted Indian lands." Federal courts have ruled that, under this
exception, federal courts do not have jurisdiction to review the IBLA's
decisions concerning application of the relation back doctrine to
rights-of-way over Native allotments.
Alaska v. Babbitt (Albert Allotment), 38 F.3d 1068 (9TH Cir. 1994):
The State of Alaska brought suit against the Department of the Interior
seeking judicial review of the IBLA's decision, applying the relation
back doctrine, that Alaska's rights-of-way over a Native allotment were
null and void. The Court of Appeals for the Ninth Circuit affirmed the
district court's dismissal of the lawsuit and held that sovereign
immunity was not waived under the Quiet Title Act. The appeals court
also addressed the IBLA's application of the relation back doctrine and
stated that the IBLA's analysis of relation back in its adjudication of
the Albert allotment was not arbitrary or frivolous.
Alaska v. Babbitt (Foster I), 67 F.3d 864 (9TH Cir. 1995) (amended and
superseded by 75 F.3d 449 (9TH Cir. 1996)):
The State of Alaska brought suit against the Department of the Interior
seeking judicial review of an IBLA decision that a Native allotment
applicant's right to land took preference over the state's highway
right-of-way. The Court of Appeals for the Ninth Circuit held that the
government was immune from suit under the Quiet Title Act. In addition,
the court rejected the state's assertion that the IBLA had restricted
the relation back doctrine.
Alaska v. Babbitt (Foster II), 75 F.3d 449 (9TH Cir. 1996) (amended and
superseded Foster I decision):
The State of Alaska brought action against the Department of the
Interior, seeking judicial review of an IBLA decision that a Native
allotment applicant's preference right to land took preference over the
state's highway right-of-way. The Court of Appeals for the Ninth
Circuit affirmed the district court's dismissal of the lawsuit, holding
that the Quiet Title Act renders the government immune from suit. The
court stated that its decision was based primarily on the authority of
its earlier decision in Alaska v. Babbitt (Albert Allotment), 38 F.3d
1068 (9TH Cir. 1994). The court did not address the merits of the
action, focusing solely on whether the United States had waived its
sovereign immunity to allow an appeal from an IBLA decision. In the
reissued opinion, the court deleted language contained in its earlier
opinion concerning the IBLA's use of the relation back doctrine.
Alaska v. Babbitt (Bryant Allotment), 182 F.3d 672 (9TH Cir. 1999):
The Court of Appeals for the Ninth Circuit held that, under the facts
of this case, sovereign immunity was waived under the Quiet Title Act
and judicial review of an IBLA decision concerning a state materials
site right-of-way over a Native allotment was permitted. In 1961, the
United States granted a material site right-of-way to the State of
Alaska. The grant was amended in 1969. In 1970, Bryant, an Alaska
Native, filed an application for an allotment, based on use beginning
in 1964 (3 years after the initial grant of the right-of-way to
Alaska). BLM approved the allotment. The state's challenge to the
allotment was dismissed by the IBLA, and the state appealed. The
district court dismissed the action for lack of jurisdiction under the
Quiet Title Act. The Ninth Circuit reversed. The appeals court observed
that, subsequent to the IBLA's decision in Bryant's case, the IBLA
changed its interpretation of the law. Specifically, in the 1997
Goodlataw case, the IBLA had held that commencement of the use and
occupancy period for a Native allotment is without "color of law" if
the state already has a right-of-way at the time. The Ninth Circuit
determined that, under Goodlataw, the IBLA would now find that Bryant
was not occupying the land under "color of law" because the state's
right-of-way was in effect when he began using the land. Since the
allottee did not have a colorable claim that the land at issue was
Indian land, the Indian lands exception under the Quiet Title Act did
not apply.
Other Applications of Relation Back Doctrine:
The doctrine of relation back is not unique to Native allotment cases
and, for over a century, has been applied in other contexts, in
particular civil and criminal forfeiture. As with holders of rights-of-
way that cross Native allotments, application of the relation back
doctrine in forfeiture cases can adversely affect the rights of third
parties.
For example, in an 1889 case concerning forfeiture of property used in
a crime, the Supreme Court stated: "By the settled doctrine of this
Court, whenever a statute [provides] that upon the commission of a
certain act specific property used in or connected with that act shall
be forfeited, the forfeiture takes effect immediately upon the
commission of the act . . . and the condemnation, when obtained,
relates back to that time, and avoids all intermediate sales and
alienations, even to purchasers in good faith." United States v.
Stowell, 133 U.S. 1, 16-17 (1889).
One hundred years later, in United States v. 92 Buena Vista Avenue, 507
U.S. 111 (1993), the Supreme Court discussed the relation back doctrine
in a drug trafficking case. In Buena Vista, the government sought to
require a homeowner to forfeit a house that had allegedly been
purchased with drug trafficking proceeds. The issues before the Court
were whether ownership vested in the government at the time the house
was purchased with the drug trafficking proceeds, and whether the
homeowner could assert an innocent owner defense. In analyzing these
issues, the Court stated that the relation back doctrine is not self-
executing and does not make the government an owner of property before
forfeiture has been decreed, thus allowing the purchaser to assert an
innocent owner defense. However, if the government obtains a decree of
forfeiture, the decree establishes the government's title to the
property as of the date of the underlying offense and supersedes all
subsequent transfers to third parties.
In Knapp v. Alexander-Edgar Lumber Co., 237 U.S. 162 (1915), the
Supreme Court applied the doctrine in a case concerning whether a
homesteader was entitled to ownership of property. The Court stated
that once the homesteader fulfilled the conditions entitling him to the
land, his title related back to the date of his first act in meeting
the conditions and cut off intervening claimants. The Court quoted from
an earlier Supreme Court case that explains the purpose of the relation
back principle:
"By the doctrine of relation is meant that principle by which an act
done at one time is considered by a fiction of law to have been done at
some antecedent period. It is usually applied where several proceedings
are essential to complete a particular transaction, such as a
conveyance or deed. The last proceeding which consummates the
conveyance is held for certain purposes to take effect by relation as
of the day when the first proceeding was had. 237 U.S. at 167, quoting
Gibson v. Chouteau, 13 Wall. 92, 100-101 (1871)."
The above are examples of application of the relation back doctrine by
courts under common law principles. The doctrine also has been
incorporated in statutes, including those dealing with drug trafficking
and money laundering. For example, 18 U.S.C. § 981(f) and 21 U.S.C. §
881(h) codify the relation back doctrine, providing that "all right,
title, and interest in property . . . shall vest in the United States
upon the commission of the act giving rise to forfeiture. . . ." Under
these statutes, although a judgment resulting in civil forfeiture takes
place some period of time after the commission of the illegal act,
title to the property passes to the government when the illegal act was
committed. However, in these cases, another statute, the Civil Asset
Forfeiture Act, provides an innocent owner defense. The act states that
"an innocent owner's interest in property shall not be forfeited under
any civil forfeiture statute." 18 U.S.C. § 983(d). Accordingly, for
example, a bona fide purchaser for value may have a defense to
forfeiture of the property.
[End of section]
Appendix III: Status of the 34 Native Allotments Identified by Alaska
Realty and Copper Valley Where Conflicts Were Suspected to Exist:
This appendix contains two tables on the universe of 34 Alaska Native
(Native) allotments identified by Alaska Realty and Copper Valley where
conflicts were suspected to exist. Table 6 shows each of the 34 Native
allotments categorized by its current status.
Table 6: Status of the 34 Native Allotments Identified by Alaska Realty
and Copper Valley Where Conflicts Were Suspected to Exist:
BLM and Alaska Realty have applied the relation back doctrine;
Name of Native allotment applicant: Markle F. Ewan, Sr;
Native allotment serial number: A-046337.
BLM and Alaska Realty have applied the relation back doctrine;
Name of Native allotment applicant: Peter Ewan;
Native allotment serial number: AA-5896-A.
BLM and Alaska Realty have applied the relation back doctrine;
Name of Native allotment applicant: Evelyn Hash Koonuk;
Native allotment serial number: AA-7242-B.
BLM and Alaska Realty have applied the relation back doctrine;
Name of Native allotment applicant: Carol J. Gurtler Holt;
Native allotment serial number: AA-7552.
BLM and Alaska Realty have applied the relation back doctrine;
Name of Native allotment applicant: Tazlina Joe;
Native allotment serial number: A-031653.
State issued utility rights-of-way within federally granted highway
easements;
Name of Native allotment applicant: Etta Bell;
Native allotment serial number: AA-6014-B.
State issued utility rights-of-way within federally granted highway
easements;
Name of Native allotment applicant: Bacille George;
Native allotment serial number: A-043380.
State issued utility rights-of-way within federally granted highway
easements;
Name of Native allotment applicant: Howard J. Jerue;
Native allotment serial number: AA-7059.
State issued utility rights-of-way within federally granted highway
easements;
Name of Native allotment applicant: Bernice E. Mai;
Native allotment serial number: AA-7600.
State issued utility rights-of-way within federally granted highway
easements;
Name of Native allotment applicant: Harvey B. Seversen;
Native allotment serial number: AA-8032.
State issued utility rights-of-way within federally granted highway
easements;
Name of Native allotment applicant: Roxy Venner;
Native allotment serial number: AA-6034.
Copper Valley was never issued a right-of-way;
Name of Native allotment applicant: Frank Gurtler;
Native allotment serial number: AA-7553.
Copper Valley was never issued a right-of-way;
Name of Native allotment applicant: Mary Ann Gurtler;
Native allotment serial number: AA-7554.
Copper Valley was never issued a right-of-way;
Name of Native allotment applicant: Florence Sabon[A];
Native allotment serial number: AA-7336.
Native allotments that appear never to have had a conflict;
Name of Native allotment applicant: Adam Bell;
Native allotment serial number: AA-2068-A.
Native allotments that appear never to have had a conflict;
Name of Native allotment applicant: Richard J. Clark[A];
Native allotment serial number: AA-2918-C.
Native allotments that appear never to have had a conflict;
Name of Native allotment applicant: Verina Estes;
Native allotment serial number: AA-8250.
Native allotments that appear never to have had a conflict;
Name of Native allotment applicant: Derira George;
Native allotment serial number: A-023391.
Native allotments that appear never to have had a conflict;
Name of Native allotment applicant: Marilyn Eskilida Joe[B];
Native allotment serial number: AA-5568-B.
Native allotments that appear never to have had a conflict;
Name of Native allotment applicant: Wilbur Joe[B];
Native allotment serial number: AA-8112.
Native allotments that appear never to have had a conflict;
Name of Native allotment applicant: Henry Peters;
Native allotment serial number: F-031726-A.
Native allotments that appear never to have had a conflict;
Name of Native allotment applicant: Delia E. Renard;
Native allotment serial number: AA-6057-A.
Native allotments that appear never to have had a conflict;
Name of Native allotment applicant: Glenna George Stansell;
Native allotment serial number: AA-6156.
Native allotments that appear never to have had a conflict;
Name of Native allotment applicant: Lorraine A. Stickwan Gordon;
Native allotment serial number: AA-6155.
Native allotments that appear never to have had a conflict;
Name of Native allotment applicant: James C. Tyone;
Native allotment serial number: A-31656.
Native allotments now in fee simple ownership;
Name of Native allotment applicant: Leona Fleury;
Native allotment serial number: A-046452.
Native allotments now in fee simple ownership;
Name of Native allotment applicant: Vivian E.A. Grey Bear;
Native allotment serial number: AA-6033.
Native allotments now in fee simple ownership;
Name of Native allotment applicant: Tenas Jack;
Native allotment serial number: AA-7164.
Copper Valley has negotiated a valid right-of-way;
Name of Native allotment applicant: Howard Adams;
Native allotment serial number: AA-6726.
Copper Valley has negotiated a valid right-of-way;
Name of Native allotment applicant: Delores Lauesen;
Native allotment serial number: F-13814.
Copper Valley has negotiated a valid right-of-way;
Name of Native allotment applicant: Nicholas Tyone;
Native allotment serial number: AA-6495-B.
Native allotments approved subject to Copper Valley's right-of-way;
Name of Native allotment applicant: Sam George;
Native allotment serial number: AA-7068.
Native allotments approved subject to Copper Valley's right-of-way;
Name of Native allotment applicant: Judy L. Jaworski;
Native allotment serial number: AA-7454.
Unknown whether conflict exists or not;
Name of Native allotment applicant: Caroline L. Mackey;
Native allotment serial number: AA-7102.
Sources: GAO analysis of Alaska Realty and Copper Valley data.
[A] Richard J. Clark (AA-2918-C) and Florence Sabon (AA-7336) Native
allotments are pending. As of April 2004, Richard Clark's Native
allotment was pending approval. Florence Sabon's Native allotment was
approved in July 1983, but as of April 2004 it had not been certified.
[B] The electric lines that cross Marilyn Eskilida Joe (AA-5568-B) and
Wilbur Joe's (AA-8112) Native allotments are owned by the State of
Alaska. Copper Valley only holds a 25 percent interest in these
electric lines.
[End of table]
Table 7 shows the list of the 34 Native allotments categorized by the
date the Native allotment was certified. Half of the Native allotments,
17 out of 34, were certified prior to the IBLA's 1987 decision on the
relation back doctrine, including 6 that were certified prior to ANILCA
in 1980. Also, about half of the Native allotments were approved under
the 1906 Native Allotment Act, and about half were legislative
approved under ANILCA.
Table 7: Native Allotments Categorized by Certificate Date and Type of
Approval:
Native allotments certified before ANLICA in 1980;
Name of Native allotment applicant: Tazlina Joe[A];
Native allotment serial number: A-031653;
Year Native allotment certified: 1960;
Type of approval: 1906 Act.
Native allotments certified before ANLICA in 1980;
Name of Native allotment applicant: James C. Tyone;
Native allotment serial number: A-31656;
Year Native allotment certified: 1961;
Type of approval: 1906 Act.
Native allotments certified before ANLICA in 1980;
Name of Native allotment applicant: Derira George;
Native allotment serial number: A-023391;
Year Native allotment certified: 1963;
Type of approval: 1906 Act.
Native allotments certified before ANLICA in 1980;
Name of Native allotment applicant: Leona Fleury;
Native allotment serial number: A-046452;
Year Native allotment certified: 1968;
Type of approval: 1906 Act.
Native allotments certified before ANLICA in 1980;
Name of Native allotment applicant: Markle F. Ewan, Sr.[A];
Native allotment serial number: A- 046337;
Year Native allotment certified: 1975;
Type of approval: 1906 Act.
Native allotments certified before ANLICA in 1980;
Name of Native allotment applicant: Howard J. Jerue[A];
Native allotment serial number: AA- 7059;
Year Native allotment certified: 1978;
Type of approval: 1906 Act.
Native allotments certified after ANILCA but before 1987;
Name of Native allotment applicant: Bernice E. Mai[A];
Native allotment serial number: AA- 7600;
Year Native allotment certified: 1983;
Type of approval: Legislative (ANILCA).
Native allotments certified after ANILCA but before 1987;
Name of Native allotment applicant: Roxy Venner[A];
Native allotment serial number: AA-6034;
Year Native allotment certified: 1983;
Type of approval: Legislative (ANILCA).
Native allotments certified after ANILCA but before 1987;
Name of Native allotment applicant: Peter F. Ewan[A];
Native allotment serial number: AA-5896-A;
Year Native allotment certified: 1983;
Type of approval: 1906 Act.
Native allotments certified after ANILCA but before 1987;
Name of Native allotment applicant: Mary Ann Gurtler[A];
Native allotment serial number: AA- 7554;
Year Native allotment certified: 1984;
Type of approval: Legislative (ANILCA).
Native allotments certified after ANILCA but before 1987;
Name of Native allotment applicant: Caroline L. Mackey;
Native allotment serial number: AA- 7102;
Year Native allotment certified: 1984;
Type of approval: Legislative (ANILCA).
Native allotments certified after ANILCA but before 1987;
Name of Native allotment applicant: Vivian E.A. Grey Bear;
Native allotment serial number: AA- 6033;
Year Native allotment certified: 1984;
Type of approval: Legislative (ANILCA).
Native allotments certified after ANILCA but before 1987;
Name of Native allotment applicant: Frank Gurtler[A];
Native allotment serial number: AA-7553;
Year Native allotment certified: 1984;
Type of approval: Legislative (ANILCA).
Native allotments certified after ANILCA but before 1987;
Name of Native allotment applicant: Marilyn Eskilida Joe;
Native allotment serial number: AA- 5568-B;
Year Native allotment certified: 1984;
Type of approval: 1906 Act.
Native allotments certified after ANILCA but before 1987;
Name of Native allotment applicant: Wilbur Joe;
Native allotment serial number: AA-8112;
Year Native allotment certified: 1985;
Type of approval: 1906 Act.
Native allotments certified after ANILCA but before 1987;
Name of Native allotment applicant: Delores Lauesen;
Native allotment serial number: F-13814;
Year Native allotment certified: 1985;
Type of approval: 1906 Act.
Native allotments certified after ANILCA but before 1987;
Name of Native allotment applicant: Harvey B. Seversen[A];
Native allotment serial number: AA- 8032;
Year Native allotment certified: 1986;
Type of approval: Legislative (ANILCA).
Native allotments certified after the relation back doctrine in 1987;
Name of Native allotment applicant: Etta Bell[A];
Native allotment serial number: AA-6014-B;
Year Native allotment certified: 1988;
Type of approval: Legislative (ANILCA).
Native allotments certified after the relation back doctrine in 1987;
Name of Native allotment applicant: Verina Estes;
Native allotment serial number: AA-8250;
Year Native allotment certified: 1989;
Type of approval: 1906 Act.
Native allotments certified after the relation back doctrine in 1987;
Name of Native allotment applicant: Howard Adams;
Native allotment serial number: AA-6726;
Year Native allotment certified: 1991;
Type of approval: 1906 Act.
Native allotments certified after the relation back doctrine in 1987;
Name of Native allotment applicant: Tenas Jack;
Native allotment serial number: AA-7164;
Year Native allotment certified: 1992;
Type of approval: 1906 Act.
Native allotments certified after the relation back doctrine in 1987;
Name of Native allotment applicant: Nicholas Tyone;
Native allotment serial number: AA-6495-B;
Year Native allotment certified: 1994;
Type of approval: Legislative (ANILCA).
Native allotments certified after the relation back doctrine in 1987;
Name of Native allotment applicant: Judy L. Jaworski;
Native allotment serial number: AA-7454;
Year Native allotment certified: 1994;
Type of approval: Legislative (ANILCA).
Native allotments certified after the relation back doctrine in 1987;
Name of Native allotment applicant: Carol J. Gurtler Holt[A, B];
Native allotment serial number: AA- 7552;
Year Native allotment certified: 1995;
Type of approval: Legislative (ANILCA)[B].
Native allotments certified after the relation back doctrine in 1987;
Name of Native allotment applicant: Evelyn Hash Koonuk[A];
Native allotment serial number: AA- 7242-B;
Year Native allotment certified: 1996;
Type of approval: Legislative (ANILCA).
Native allotments certified after the relation back doctrine in 1987;
Name of Native allotment applicant: Delia E. Renard;
Native allotment serial number: AA-6057-A;
Year Native allotment certified: 1996;
Type of approval: Legislative (ANILCA).
Native allotments certified after the relation back doctrine in 1987;
Name of Native allotment applicant: Bacille George[A];
Native allotment serial number: A- 043380;
Year Native allotment certified: 1996;
Type of approval: 1906 Act.
Native allotments certified after the relation back doctrine in 1987;
Name of Native allotment applicant: Henry Peters;
Native allotment serial number: F-031726-A;
Year Native allotment certified: 1996;
Type of approval: Legislative (ANILCA).
Native allotments certified after the relation back doctrine in 1987;
Name of Native allotment applicant: Lorraine A. Stickwan Gordon;
Native allotment serial number: AA- 6155;
Year Native allotment certified: 1996;
Type of approval: Legislative (ANILCA).
Native allotments certified after the relation back doctrine in 1987;
Name of Native allotment applicant: Glenna George Stansell;
Native allotment serial number: AA- 6156;
Year Native allotment certified: 1996;
Type of approval: Legislative (ANILCA).
Native allotments certified after the relation back doctrine in 1987;
Name of Native allotment applicant: Adam Bell;
Native allotment serial number: AA-2068-A;
Year Native allotment certified: 1999;
Type of approval: 1906 Act.
Native allotments certified after the relation back doctrine in 1987;
Name of Native allotment applicant: Sam George;
Native allotment serial number: AA-7068;
Year Native allotment certified: 2000;
Type of approval: 1906 Act.
Native allotments certified after the relation back doctrine in 1987;
Name of Native allotment applicant: Richard J. Clark;
Native allotment serial number: AA-2918-C;
Year Native allotment certified: Pending;
Type of approval: 1906 Act.
Native allotments certified after the relation back doctrine in 1987;
Name of Native allotment applicant: Florence R. Sabon[A];
Native allotment serial number: AA- 7336;
Year Native allotment certified: Pending;
Type of approval: Legislative (ANILCA).
Source: GAO analysis of BLM data.
[A] One of the 14 Native allotments with a conflict.
[B] BLM legislatively approved the Carol J. Gurtler Holt allotment even
though the State of Alaska had an outstanding protest. The state
appealed BLM's legislative approval to the IBLA (IBLA 84-307). The
appeal was settled by a stipulated agreement, signed by attorneys for
the state, Ms. Holt and the federal government, that made the allotment
subject to an easement for an existing road. The IBLA dismissed the
appeal and the case was remanded to BLM with instructions to act in
accordance with the stipulated settlement.
[End of table]
[End of section]
Appendix IV: Comments from the Department of the Interior:
United States Department of the Interior:
OFFICE OF THE SECRETARY:
Washington, D.C. 20240:
AUG 24 2004:
Mr. Barry T. Hill:
Director, Natural Resources and Environment:
U.S. Government Accountability Office:
441 G Street, N.W.:
Washington, D.C. 20548:
Dear Mr. Hill:
Thank you for the opportunity to comment on the U.S. Government
Accountability Office (GAO) draft report entitled Alaska Native
Allotment: Conflicts with Utility Rights-of-Way Have Not Been Resolved
through Existing Remedies (Report No. GAO 04-923). The Department of
the Interior (DOI) offers the following comments on the subject draft
report.
On page 35 of the draft report, GAO recommends:
"To ensure that potential conflicts over the validity of rights-of-way
with Native Alaska allotments are not escalated unnecessarily we are
recommending that the Secretary of the Interior direct the Assistant
Secretary for Indian Affairs to develop, as a part of BIA's training
and technical assistance provided to its realty service providers in
Alaska, a training module identifying the types of evidence that should
be developed before pursuing an alleged trespass involving rights-of-
way."
As the draft report indicates, the Bureau of Indian Affairs (BIA) has
contracted with regional nonprofit corporations or other Alaska Native
entities to perform certain realty services for owners of Native
allotments. The Alaska Realty Consortium (Alaska Realty) provides
realty services, such as sales, leases, mortgages, and rights-of-way,
for over 160 Native allotments in south-central Alaska. In the course
of the review, four instances were found where Alaska Realty was
requesting that Copper Valley obtain rights-of-way where the GAO did
not believe there was evidence that Copper Valley's electric lines were
in trespass.
The BIA agrees with the recommendation that additional training needs
to be provided to the realty service providers in Alaska to prevent
unnecessary escalation of conflicts over the validity of rights-of-way.
The realty training provided in March 2004 by the BIA's Alaska Region
Realty Office was intended as basic training. The BIA provided advanced
realty training the week of August 23, 2004. The Alaska Region Realty
Office will be reviewing its training to incorporate suggestions in the
GAO draft report. In conjunction with the Office of the Solicitor,
Alaska Regional Office, the BIA's Alaska Region Realty Office will
include evidentiary standards that should be developed before pursuing
an alleged trespass involving rights-of-way.
Due to the frequent turnover of staff among realty service providers,
the Alaska Region Realty Office intends to provide training and
technical assistance periodically. This will allow training materials
to be revised and updated as necessary.
Comments from the Solicitor's Office on the draft report are enclosed.
If you have any questions, please contact Deborah Williams, DOI's GAO
Liaison Officer, on 202-208-3963.
Signed for:
P.Lynn Scarlett:
Assistant Secret Policy, Management, and Budget:
Enclosure:
[End of section]
Appendix V: Comments from the State of Alaska:
STATE OF ALASKA:
DEPARTMENT OF LAW:
OFFICE OF THE ATTORNEY GENERAL:
FRANK H. MURKOWSKI, GOVERNOR:
1031 WEST 4TH AVENUE, SUITE 200:
ANCHORAGE, ALASKA 99501-5903:
PHONE: (907)269-5100:
FAX: (907)276-3697:
August 18, 2004:
Barry T. Hill:
Director for Natural Resources and Environment:
U.S. Government Accountability Office:
441 G Street NW:
Washington, D.C. 20548:
Re: Draft GAO Report on Alaska Native Allotments/Conflicts With Utility
Rights-of-Way:
Dear Mr. Hill:
Enclosed are the comments of the State of Alaska on the draft report
prepared by the GAO on the ongoing conflicts between Alaska Native
Allotments and utility rights-of-way within Alaska. The State
appreciates the opportunity to comment on this report, and is prepared
to work cooperatively with the United States, allotment advocates and
private utilities toward a comprehensive solution to this problem.
Sincerely,
GREGG D. RENKES:
ATTORNEY GENERAL:
Signed By:
John T. Baker:
Assistant Attorney General:
cc: John W. Katz:
Office of the Governor:
State of Alaska's Comments on Draft GAO Report: Alaska Native
Allotments / Utility Rights-of-Way Conflicts:
The State of Alaska ("State") appreciates the opportunity to comment on
the GAO's draft report on conflicts between Alaska Native Allotments
and utility rights-of-way within the state. The State discusses below
two cases that highlight the allotment/right-of-way conflict, then
addresses the four alternatives identified by GAO for legislation.
A. Background: The Parks Highway Cases:
Conflicts between Alaska Native allotments and rights of way actually
are broader than conflicts between utility lines and Native allotments.
Since 1987, portions of the Parks Highway, the primary road between
Anchorage and Fairbanks and the only road to Denali National Park, have
also been declared null and void under the relation back theory. Since
1987, the application by the Department of the Interior of the relation
back doctrine to rights-of-way has resulted in protracted, expensive,
and ultimately fruitless litigation for the state and federal
governments and for allotment owners.
Although the Parks Highway cases, Foster and Bryant, are discussed in
the appendix to the GAO report, the full story of these cases is not
disclosed. We include additional comments concerning these cases to
demonstrate the need for legislation to address these conflicts.
State v. Babbitt (Foster), 75 F.3d 449 (9TH Cir. 1995):
As the GAO report indicates, the Ninth Circuit decision in Foster held
that the United States is immune from actions seeking judicial review
of decisions that approve allotments and void conflicting rights of
way. [NOTE 1] However, Foster's aftermath is not discussed in the
report. The Ninth Circuit has created a jurisdictional void, as the
Foster case amply demonstrates.
After the Ninth Circuit issued its Foster decision, Mrs. Foster sued
the state in state superior court for trespass and ejectment based on
the IBLA's approval of her allotment and its voiding of the Parks
Highway easement where it crossed her allotment. The superior court
dismissed Mrs. Foster's complaint because Public Law 280 (28 U.S.C. §
1360(b)) exempts ownership disputes concerning Indian trust lands from
that statute's grant of jurisdiction to the state. The Alaska Supreme
Court affirmed the dismissal in Foster v. State, 34 P.3d 1288 (Alaska
2001).
Thus, neither the state nor Mrs. Foster can obtain judicial redress for
perceived interference with their respective property rights. In State
v. Babbitt (Foster), the Ninth Circuit held that the state could not
obtain judicial review in federal court challenging the IBLA's
cancellation of its right of way for the Parks Highway, while in Foster
v. State, the Alaska Supreme Court held that Mrs. Foster could not
bring an action in state court to eject the state from the right of way
after the IBLA cancelled it. [NOTE 2]
The federal government could fill this void by suing the state in
federal court on Mrs. Foster's behalf, thus waiving its sovereign
immunity and providing a judicial forum in which the competing
ownership claims could be litigated. However, the federal government
has not taken this action and, as the GAO report notes, it is unlikely
to do so because of concerns that litigation would result in allotments
being declared invalid. [NOTE 3]
The upshot of the Foster litigation is that neither state nor federal
courts have jurisdiction to adjudicate conflicts between Native
allotments and rights of way. The status of Mrs. Foster's rights in her
allotment and the status of the state's interest in the Parks Highway
where it crosses the Foster allotment are in limbo. Given the federal
government's understandable reluctance to initiate litigation on Mrs.
Foster's behalf, those rights are likely to stay in limbo for the
foreseeable future.
State v. Babbitt (Bryant), 182 F.3d 672 (9TH Cir. 1999), decision on
remand sub nom., Alaska v. Norton, 168 F.Supp.2d 1102 (D.Alaska 2001):
While Foster demonstrates the jurisdictional void created by the Ninth
Circuit in most allotment-right of way conflict cases, Bryant
demonstrates the unsatisfactory result of litigating an allotment-right
of way conflict in those instances where judicial review is not barred
by sovereign immunity.
In Bryant, the state succeeded in obtaining judicial review of a Native
allotment decision voiding a right of way. The Ninth Circuit held that
the government had no "colorable claim" that Mr. Bryant's allotment was
"Indian land" because the state was granted a material site three years
before Mr. Bryant first started using the land: The land was,
therefore, not available for allotment under the Alaska Native
Allotment Act. Because there was no "colorable claim" that Mr. Bryant's
allotment was Indian land, sovereign immunity did not bar judicial
review of the IBLA decision voiding the state's right of way where it
crossed Mr. Bryant's allotment. [NOTE 4]
On remand to the district court from the Ninth Circuit's decision in
Bryant, the state argued that the Parks Highway right of way was valid,
but sought only to make the allotment subject to the highway right of
way and a portion of the state's original 500-acre material site. [NOTE
5] Nevertheless, because the state's original 500-acre material site
was granted three years before Mr. Bryant first started using his
allotment, the district court held that Mr. Bryant's entire allotment
was void where it conflicted with the original 500-acre site, [NOTE 6]
a result that the state neither sought nor desired.
Norton preserved the state's rights of way but left Mr. Bryant with
only eight of the original 160 acres of land he claimed as an
allotment. Because the deadline for allotment applications had expired
in 1971, Mr. Bryant had no opportunity to commence use on, or apply
for, other allotment lands.
B. The Four Alternatives for Legislation Identified by GAO:
The GAO report identifies four alternatives for legislation to address
conflicts between allotments and rights-of-way: (1) changing Interior's
application of the relation back-doctrine; (2) waiving federal
sovereign immunity to allow disputes between allotments and state or
third party interests to be resolved in federal court; (3) ratifying
rights-of-way granted by the State of Alaska within federally granted
highway easements; and (4) establishing a fund to pay for rights-of-way
across Alaska Native allotments. Each alternative is addressed below.
1. Changing the Application of the Relation-Back Doctrine:
As discussed above, Interior's application of the relation-back
doctrine to rights-of-way issued prior to the filing of the allotment
application has resulted in protracted litigation involving the State,
the United States, and allottees. The conflict dates from 1987, when
the IBLA, in Golden Valley Electric Ass'n (On Reconsideration), 98
IBLA 203 (1987), ruled that an allotment could not be made subject to
a right-of-way issued prior to the filing of the allotment application,
where use and occupancy of the allotment commenced prior to the
issuance of the right-of-way. This ruling overturned longstanding
precedent, and repudiated prior rights granted by the United States to
the State under what has long been recognized as the plenary power of
the Secretary of the Interior over federal public lands, including
occupied Indian lands. [NOTE 7] The State received numerous federal
highway and material site right-of-way grants, pursuant to 23 U.S.C.
317, prior to the filing of Native Allotment applications in which
they are now in conflict as a result of IBLA's ruling in Golden Valley
Electric Ass'n.
Legislation clarifying that allotments are subject to rights of way
granted before an allotment application was filed would avoid
protracted litigation and would preserve the legitimate expectations of
both rights of way grantees and allotment owners in the lands that
allottees and grantees applied for and have used for years. Amending
ANILCA to clarify that right of way grants issued under the Highway Act
are "valid existing rights" to which allotments must be made subject
under 43 U.S.C.§ 1634(a)(1)(A) would be one way to resolve these
conflicts and would do "nothing more than make clear what was
undoubtedly the intent of § 1634(a)(1) in the first place." [NOTE 8]
It should be noted, however, that legislation to correct Interior's
application of the relation-back doctrine should be limited to the
resolution of conflicts with those prior rights-of-way that should
properly be viewed as "valid existing rights." Legislation should not
be so broad as to invalidate the application of the relation-back
doctrine in other respects, as the doctrine is the central premise on
which Interior determines the validity of allotments, where use and
occupancy commenced prior to the segregation of the land from the
public domain. [NOTE 9]
2. Waiving Federal Sovereign Immunity:
Legislation waiving the immunity of the United States to allow for
judicial review of allotment/right-of-way conflict cases would resolve
the. jurisdictional dilemma illustrated by the Foster case, discussed
above. However, unless IBLA's application of the relation-back doctrine
is addressed also, this remedy offers limited help to the holders of
rights-of-way in conflict with allotments. By itself, this alternative
would do nothing to defray the costs of bringing litigation or to bring
expeditious closure to these disputes.
3. Ratifying the Rights-of-Way Granted by the State Within Federally
Granted Highway Easements:
Any legislative solution should include a clarification by Congress
that third-party rights-of-way granted by the State within federal
highway easements granted to the State are valid. As the GAO report
makes clear, the BIA has relied on a 1989 Regional Solicitor's Opinion
concluding that the State lacks the authority to issue rights-of-way to
third party utilities within federally granted highway easements,
because such easements do not include the right to install utility
lines. [NOTE 10] This position is squarely at odds with Alaska law and
with prevailing common law governing the rights attendant to highway
easements.
The use of an easement reserved "for highway purposes" is not limited
to movement of vehicles but, rather, embraces every reasonable method
of over, under and along the right-of-way. [NOTE 11] The easement
acquired by the public in a highway includes every reasonable means
for the transmission of intelligence, the conveyance of persons, and
the transportation of commodities that the advance of civilization may
render suitable for a highway. [NOTE 12] Thus, the installation of
power and telecommunication lines with a highway right-of-way is
permissible so long as the lines are compatible with road traffic
because "they are viewed simply as adaptations of traditional highway
used made because of changing technology." [NOTE 13] Since a highway
may be built within a highway easement, so any "incidental subordinate
use" may be made of the easement, since it imposes no additional burden
or servitude on the underlying fee. [NOTE 14] An easement for a public
highway also permits "inchoate future transportation uses," incidental
to the primary highway purpose, which do not further encroach on the
underlying fee. [NOTE 15]
Interior's position that federal grants of highway easements to states
do not include the right to create third party utility easements is in
conflict, then, not only with Alaska law, but with the prevailing
common law rule as recognized by numerous state courts. The State of
Alaska would support legislation resolving this conflict.
4. Establishing a Federal Fund to Pay for Rights-of-Way:
The last option identified by the GAO report is the establishment of a
federal fund to pay for the acquisition of rights-of-way across
allotments. The effectiveness of this option is obviously constrained
by federal budget realities, although in some cases, the cost of
acquiring a right-of-way may be relatively modest. In addition, if
other legislative alternatives, particularly Alternatives 1 and 3, were
pursued, a federal fund to acquire rights-of-way might not be
necessary.
However, a federal funding source might well be necessary to deal with
any takings claims resulting from legislation action. Requiring the
State and other grantees to compensate allotment owners in order to
clear the conflicts would be manifestly unfair to the State and other
grantees. As the GAO report points out, because of the nature of the
land's use, there was often very little evidence of an allotment
applicant's potentially exclusive use and occupancy of land. Therefore,
initial fieldwork to locate material sites, highways and other rights
of way would not have disclosed that an Alaska Native was using the
land. In the absence of an application filed with BLM, the State and
other grantees had no way of knowing that a parcel of land was being
claimed and had no way of locating projects and material sites so as
to avoid the conflicts. It would be utterly unreasonable, therefore,
to expect the State or other grantees to absorb the cost of resolving
conflicts created by the United States' misapplication of its legal
authority.
C. Conclusion:
The GAO report is laudable in its breadth of analysis of conflicts
between Alaska Native Allotments and rights-of-ways. The State of
Alaska is prepared to work cooperatively with the United States,
allotment advocates, and utility companies on a comprehensive
legislation solution that recognizes the valid existing rights of all
parties.
NOTES:
[1] The lead attorney for the state in six of the nine IBLA and Ninth
Circuit cases discussed in Appendix II to the GAO report has authored a
thorough analysis of the law in this area and has suggested legislation
that would resolve the conflicts. See E. John Athens, Jr., The Ninth
Circuit Errs Again: The Quiet Title Act as a Bar to Judicial Review, 19
ALASKA L. REV. 433 (2002) (hereinafter "Athens").
[2] "There is little reason to question the Alaska Supreme Court's
decision; [Public Law 280's] proscription against state court
jurisdiction is explicit." Athens, at 434 (citations omitted).
[3] This concern is especially relevant in Foster. Under the relation
back theory, Mrs. Foster's interest in her allotment is measured from
the date she first used the land. Mrs. Foster started using her
allotment land in 1964. However, the state was granted a Highway Act
material site covering virtually all of the Foster allotment three
years before Mrs. Foster started using it. The Parks Highway is built
entirely within this material site right of way. Thus, relation back
would not help Mrs. Foster. In litigation where ownership of the land
was adjudicated, Mrs. Foster's allotment would likely be invalidated
because the land was not unappropriated, nonmineral land on the date
Mrs. Foster initiated her use. See Athens at 437-440; see also Alaska
v. Norton, 168 F.Supp.2d 1102 (D.Alaska 2001)(discussed below). Norton
invalidated an allotment under a factual scenario virtually identical
to that in Foster.
[4] Bryant, 182 F.3d at 676-77. The Ninth Circuit's decision in Bryant
highlights the IBLA's unequal application of the relation back
doctrine. Although constrained by Ninth Circuit precedent to deny
judicial review, the district court in Bryant had noted that the IBLA
had unfairly applied the relation back doctrine to the allottee's use
of the land while refusing to apply that doctrine to the state's prior
use of the same land for a material site. Bryant, 182 F.3d at 674. The
district court described the IBLA's decision as "cynical or ...
intellectually dishonest," and "a bunch of garbage." Id. at 675.
[5] Alaska v. Norton, 168 F.Supp.2d at 1108.
[6] Id. at 1107 and n.12.
[7] See Tee-Hit-Ton Indians v. United States, 343 U.S. 272, 279 (1955);
United States v. Clarke, 529 U.S. 984, 986 (9tHCir. 1976); Alaska v.
13.90 Acres of Land, 615 F.Supp. 1315, 1320 (D.Alaska 1985), aff'd d
sub nom. Etalook v. Exxon Pipeline Company, 831 F.2d 1440 (9TH Cir.
1987).
[8] Athens, at 460.
[9] See Aguilar v. United States, 474 F.Supp. 840 (D.Alaska 1979)
(because validity of allotment relates back to date use and occupancy
commenced, United States has trust responsibility to determine
validity of allotment applications filed after date land was
segregated by competing claim).
[10] This conclusion apparently was based on the holding in United
States v. Gates of the Mountain Lake Shore Homes, Inc., 732 F.2d 1411
(9th Cir. 1984).
[11] Fisher v. Golden Valley Elec. Ass'n, Inc., 658 P.2d 127, 129
(Alaska 1983). See also State v. Homar, 798 P.2d 824, 826 (Wyo. 1990);
Bentel v. County of Bannock, 656 P.2d 1383 (Idaho 1983).
[12] Golden Valley Elec. Ass'n, Inc., 658 P.2d at 129.
[13] Id.
[14] Id.
[15] Broadbend Land Company v. Town of Manila, 842 P.2d 907, (Utah
1992).
[End of section]
Appendix VI: Comments from the Copper Valley Electrical Association:
Copper Valley Electric Association, Inc.
PO. Box 45:
Glennallen, Alaska 99588:
Telephone: 907-822-3211:
Facsimile: 907-822-5586:
Valdez: 907-835-4301:
August 13, 2004:
Barry T. Hill:
Director, Natural Resources:
General Accounting Office:
441 G Street, NW:
Washington, DC 20548:
Dear Mr. Hill:
Copper Valley Electric Association (CVEA) has been working with the
General Accounting Office on its draft report #04-923 on Alaska Native
Allotments. This includes a number of meetings in Alaska and
Washington, DC on this report.
CVEA appreciates the opportunity to comment on the GAO's draft report.
Our comments on the draft report are attached for your review. Thank
you for the effort which GAO has taken on this important issue.
Signed by:
Robert A. Wilkinson:
Chief Executive Officer:
Comments of Copper Valley Electric Association On Draft General
Accounting Office Report #04-923:
The Copper Valley Electric Association (CVEA) appreciates the
opportunity to comment on this draft report. The CVEA also appreciates
the time and effort the GAO staff have devoted to this investigation
including two trips to Alaska and one trip to the CVEA service area to
determine the facts surrounding the issues under this investigation and
the federal policies which have created this problem. When combined
with the 1980 blanket approval of Native allotment applications under
section 905 of the Alaska National Interest Lands Act, CVEA is made the
victim of federal policies which act to place its rights of way from
the federal government and State of Alaska in jeopardy.
These policies must be changed by a combination of federal actions,
including legislation. These must include:
1. Passage of legislation to void or change the doctrine of relation
back so that the doctrine does not jeopardize CVEA and other utility
rights of way in Alaska.
2. Recognition by BIA that CVEA rights of way are not in conflict with
allotments and that no trespass actions should be threatened or pursued
by BIA against CVEA.
3. Adoption of the GAO recommendation that no further trespass actions
be permitted until the BIA has developed a training module and that
training module is fully implemented with sufficient training to
prevent the conflicts currently in controversy in the CVEA service
area.
4. Administrative or legislative action to recognize that the CVEA
rights of way within State of Alaska Rights of way are valid and
recognized by the federal government including the BIA.
General Comments:
On pages 3 and 4, GAO states that CVEA is trespassing on allotments.
CVEA takes very strong exception to these statements. CVEA does not
agree that it is in trespass on any allotment. Further, it does not
believe that GAO has either the legal ability or authority to reach
such a conclusion. Only a court of competent jurisdiction can
adjudicate such a finding of trespass. CVEA respectfully urges that
these statements of "trespass" be removed from this document.
On pages 30 and 34, GAO appears to repeat as correct allegations by
individual allottees that electric service has been denied by CVEA as
some sort of tactic or retribution in this allotment dispute. This is
categorically untrue. CVEA has a goal of serving all potentially
eligible customers in its service area. Because this allotment issue
has become so complicated and controversial, it may be helpful to
repeat a basic point: A fundamental requirement for obtaining service
from CVEA under its by-laws is that the customer agree to a blanket
easement across his or her property without cost to CVEA for both the
service lines and distribution lines, and these allottees have never
offered to CVEA to do this. These statements should be removed, or
clarified to reflect that the allotment conflict has caused this
situation.
While CVEA understands and appreciates that this report deals strictly
with the allotment/right of way conflict situation in the Copper River
basis, it is critical that the readers of this report understand this
is not an issue unique to CVEA's service area. CVEA believes that this
is a statewide problem which needs more attention to insure that CVEA's
conflict experience is not repeated in other areas of the state of
Alaska.
There are many other utilities and right of way holders at risk unless
a good soluton to this problem is achieved.
Comments on GAO Draft Report, Conclusions:
CVEA congratulates the GAO for assembling information on all 34
allotments in controversy. This section is the heart of the report
factually and provides a cogent summary of these cases. While CVEA
agrees with many of the conclusions in this part of the report, it does
have comments and a fundamental disagreement with one conclusion, all
of which are provided below.
1. CVEA's 5 "relation back cases"-CVEA agrees that each of the five
cases list in Table 1 as relation back cases are properly categorized
and described. Each of these allotments is located alongside the
Richardson Highway (their consistent proximity to the highway suggests
that these allotments were located where they are precisely because
they were adjacent to the highway and other modern services, such as
electric and telephone utility service). While the facts on these cases
vary, CVEA believes that the Bureau of Land Management (BLM) improperly
voided CVEA rights of way using the relation back doctrine and that
Alaska Realty has improperly asserted that the relation back doctrine
applies even in cases in which there is no native allotment holder.
Without the relation back doctrine, CVEA's rights of way would be
recognized as valid exiting rights and there would be no problem or
controversy. This is why the relation back doctrine must be repealed.
Finally, please note that we strongly believe that the 6 cases which
GAO lists as "no right of way cases" are actually "relation back
cases." The GAO should modify its draft to reflect this and to
eliminate this erroneous "no right of way category." See comments
below.
2. CVEA's "state right-of-way" cases-This is another situation in which
the Department of Interior (DOI) has acted to subsequently void what
were clearly valid existing rights. Each of the 6 allotments in this
category has a valid State of right-of-way crossing it. Until 1989,
there was no problem asserted by Interior with such rights-of-way. Such
problems arose following an Alaska Regional Solicitor's opinion that
stated that the State did not have the right to issue utility easements
to utilities such as CVEA in a manner that would have precedence over
Native allotments. The Solicitor has created a controversy where there
need not have been one. This action, 30 years after the State rights of
way were granted, clearly is in conflict with the ANILCA policy that
native allotments must be subject to valid existing rights.
The State's right to grant rights of way easements for utility purposes
is critical to providing utility service to CVEA and other utility
customers in the State. The clear solution is for the Congress to
validate the State right-of-way for all transportation purposes,
including utility easements granted thereunder, and/or directly
validate the existing CVEA rights of way to insure that they are deemed
valid existing rights for all purposes.
3. CVEA's cases with "no right-of-way" are "relation back" doctrine
cases-It is and would have been futile for CVEA to seek BIA consent to
these rights-of-way because of the "relation back" doctrine. CVEA
respectfully disagrees with the findings of GAO on these cases, Frank
and May Ann Gurtler and Florence Sabon, described at pages 24 26 of the
draft report. These cases should be considered as "relation back" cases
-fundamentally no different from the other five "relation back" cases
described earlier and listed in the first section of Table 1 on page
15. In other words, CVEA believes there are 11, not 5, "relation back"
cases.
In these cases, CVEA applied for a BLM right-of-way in 1965 and
constructed the line in 1967; the BLM did not act on the CVEA
application until 1982, some 17 years later. In the meantime, the
Native applicants applied for these allotments in 1971-72 and claimed
initiation of use and occupancy prior to the time of the CVEA
application, ANILCA was passed in 1980 approving the allotment
applications, and the Natives were granted allotment certificates in
1982. Then, in 1982, CVEA was required to obtain the consent of the BIA
to the grant of a right-or-way across the allotment.
The GAO Report states that these allotments are different from the
"relation back" cases discussed above, because no consent to the right-
of-way across the allotment was ever issued by BIA. However, it is
perfectly obvious that seeking consent from the BIA for these rights of
way is, and would have been, completely futile because the BIA would
have taken the position these allotments were subject to the relation
back doctrine because the date of initiation of use and occupancy
predated the application by CVEA. GAO distinguishes these cases from
the other "relation back" cases on a fact that does not make a
difference-the real reason, the only reason, that there is no consent
and no right-of-way in these cases is the "relation back" doctrine.
CVEA also wishes to note that the Sabon allotment is currently the
subject of an ongoing administrative appeal before IBLA. This appeal is
taken from a BLM order denying CVEA a right-of-way and granting CVEA
the right to appeal. We believe that the GAO report inappropriately
states, in footnote 27, that the BLM action was "in error". We
understand that the Regional Solicitor and Alaska Legal Services may
take this view, and may attempt in the future to withdraw or invalidate
the BLM order granting CVEA a right to appeal. If they are successful
then this action perhaps will leave CVEA without an appeal, and perhaps
without any legal remedy at all in this case. We believe it is
incorrect and improper for GAO to comment on the merits of cases
currently in active litigation, and we believe this portion of the
discussion should be removed from the report.
4. CVEA's Cases "without trespass"-While CVEA believes that it is not
in trespass on any of the 34 cases examined, it certainly agrees with
the GAO conclusions on these four cases discussed on pages 26-28. The
actions taken by BIA through its contractor, Alaska Realty Consortium,
demonstrates the real problem here. Neither BIA nor Alaska Realty has
any rules governing its actions. This leads to Alaska Realty making
demands based on inaccurate facts. No further action by Alaska Realty
should be permitted by DOI until a full revamping of this program is
accomplished.
5. The existing status of this issue requires only innocent private
parties to bear the resulting costs-Any discussion of the costs of
legislative remedies should consider the current imposition of costs on
innocent third parties, and that what would occur in the event the
United States assumed the costs of its allotment policies would simply
be to reallocate the cost of the issue from innocent third parties to
the United States, where it belongs.
The Report contains a discussion, at pp. 6-7, of four possible remedies
and the costs of these remedies. The four possible remedies identified
are: (1) do away with the "relation back" doctrine; (2) waive federal
sovereign immunity to allow CVEA to sue; (3) ratify state grants of
utility easements to CVEA in highway rights of way; (4) pay the
allottees for the CVEA rights of way. It is then discussed that options
1 and 3 could result in the US being sued for a taking of possible
allottee rights, and that the cost of option 4 approximately equals the
cost to the United States of options 1 and 3.
This discussion carefully sidesteps the crux of CVEA's concern with
this entire issue: the current situation has shifted AWAY FROM THE
UNITED STATES and TO A COMPLETELY INNOCENT THIRD PARTY the entire cost
of the federal policies relative to Native allotments, including their
approval in ANILCA without any adjudication, and the invalidation of
rights of way through the "relation back" doctrine. CVEA did nothing to
the allottees, and the allottees had no rights contrary to CVEA when
CVEA obtained its rights-of-way and constructed its lines. The entire
costly imposition of this regime on CVEA has occurred by unilateral
Federal action which occurred without any consideration at all of the
impacts on CVEA or other innocent third parties like it that would
result, and with the costs imposed on CVEA as a result.
Specific Comments on Draft Report:
The CVEA makes the following comments on the draft report:
Page 1-It is critical that the US government recognize the need to fix
this problem by federal legislative or administrative action. These
problems were created by federal legislative or administrative actions.
The only legal remedies that CVEA may have are costly and time-
consuming. It should not be the responsibility of CVEA to solve these
problems. The US government, and specifically the Congress must act to
remedy he situation.
Page 3-As stated at the top of the page, the principal problem is that
since 1987, The BLM no longer recognizes the validity of previously
located right-of-way easements. This creates the conflict that cannot
be resolved by litigation because the US refuses to waive sovereign
immunity to allow CVEA to contest the validity of the relation back
doctrine. This is a classic "catch 22" situation. CVEA has no effective
remedy in these cases.
Page. 4-As stated above, CVEA does not agree that it is in trespass on
any allotment. CVEA believes that the three cases which GAO refers to
as cases in which CVEA constructed electric lines without a right-of-
way are more property considered "relation back" cases.
Page 5-This page describes how difficult, time consuming and expensive
it is for CVEA to pursue a solution without federal administrative or
legislative action.
Page 5-CVEA is not "hoping for " a legislative solution" Rather CVEA is
"seeking" legislative amendments to existing law to solve the problems
described in this report.
Page 6-This problem can only be solved by the adoption of at least
remedies numbers 1 and 3. CVEA does not believe authorizing litigation
by waiving sovereign immunity is a viable solution.. This will only
prolong the solution to this problem. CVEA believes that if
establishing a fund under remedy number 4 is selected as one of the
remedies, this must be structured to insure that all costs and
administrative burden is borne by the federal government.
Page 9-CVEA believes it is absolutely clear that the term "valid
existing rights" in Section 905 of ANILCA was specifically intended to
protect the State's and CVEA's rights of way. If these rights-of-way
are not considered valid, the operation of the relation back doctrine
will effectively void ANY right-of-way since most claims of occupancy
predate Alaska Statehood and the issuance of virtually all other uses
which would qualify as valid existing rights.
Page 10-The GAO correctly states that BLM makes no examination of the
facts of any application which qualifies for legislative approval. This
is the critical issue. Since BLM now assumes that the facts of any
affidavit of use and occupancy are correct, there is no opportunity for
BLM or CVEA to question when or if occupancy actual occurred as stated
in the affidavit.
Since an affidavit of previous use and occupancy will void a right-of-
way under the relation back doctrine, the CVEA has very limited tools
with which to protect its otherwise valid existing right.
Page 26-One of the fundamental "on the ground issues" is the inability
of any party to easily and correctly identify the exterior boundaries
of an allotment because almost all have not been surveyed. The report
needs to reflect this as a major difficulty which cannot be ignored by
BIA or its contractor. Instead, ARC has boldly demanded easements based
on little or no factual basis. This practice must cease and the
difficulties created by lack of adequate surveys must be recognized.
Page 31-As stated above, regarding page 5, CVEA is seeking legislative
amendments to existing law to solve the problems described in this
report.
Page 32-CVEA restates its previously stated position that only
implementation of at least remedies number 1 and 3 can solve this
problem. Congress must act to protect CVEA and other utility rights of
way.
Comments on Appendices:
CVEA has no comments on the appendices except to note that the five
cases involving the relation back doctrine indicate how difficult it is
to understand the current state of the law. In two cases, the federal
courts have upheld the State right-of-way as a valid existing right to
which a Native allotment is subject even though legislatively approved
or that the land on which the allotment was located was not actually
open to occupation by a native allotment application.
It was this confusion of facts and law that led the Congress to
legislatively approve thousands of allotment applications encompassing
hundreds of thousand of acres. However, the protection of valid exiting
rights cannot be left to individual adjudication. This would only
defeat the purpose of the decision to approve these allotments. This
situation is made even more difficult by the fact that sovereign
immunity prevents any case to adjudicate the validity of the relation
back doctrine.
This can lead only one conclusion. Congress must act on this matter as
described below.
Conclusion:
CVEA congratulates the GAO for assembling a comprehensive and generally
accurate draft report.
However, this problem can only be solved if the U.S. government,
including the Department of Interior, acts on the recommendations
contained in the report. This must include at a minimum the following:
1. Changing the Relation Back Doctrine so that it does not act to void
CVEA's existing rights of way;
2. Ratifying the State's rights of way so that its grant to CVEA cannot
be questioned as to validity by the federal government or third
parties.
3. Complete reworking of any future action by BIA or Alaska Realty to
insure that action is taken only after a full investigation with facts
to support any demand for a right of way;
4. Suspension of any activities in the CVEA service area pending
implementation of number 3 above particularly on the 20 allotment
applications on which GAO has found no conflicts.
The following are GAO's comments on the Copper Valley Electrical
Association's letter dated August 13, 2004.
GAO Comments:
Copper Valley commented on our recommendation and the legislative
options, both of which are discussed in the Agency Comments and Our
Evaluation section of this report. Copper Valley also provided
technical comments, which we incorporated as appropriate. In addition,
discussed below are GAO's corresponding detailed responses to some of
Copper Valley's comments.
1. GAO has not concluded that Copper Valley is trespassing on
allotments, rather, our report states that Interior and/or Alaska
Realty have determined that Copper Valley is trespassing or allegedly
trespassing across Native allotments.
2. We acknowledge Copper Valley's goal of serving all potentially
eligible customers in its service area and its requirement that
customers agree to a blanket easement across their property without
cost to Copper Valley. However, Copper Valley has been inconsistent in
how it has dealt with securing rights-of-way across Native allotments.
For example, as stated in our report Copper Valley has negotiated a
right-of-way and compensated Native allottees for use of the land in
the following cases: Howard Adams (1998 right-of-way), Delores Lausen
(1997 right-of-way), and Nicolas Tyone (1996 right-of-way).
3. Yes, as noted in our report, we state that while several relation
back cases have been identified so far in the Copper River area, other
cases may exist.
4. Yes, we agree that in these cases the relation back doctrine could
presumably have been applied to invalidate Copper Valley's right-of-
way, if Copper Valley had obtained a right-of-way. As our report notes,
because Copper Valley did not obtain BIA approval and was not granted a
right-of-way through these Native allotments, they are not examples of
the relation back doctrine. BLM's 1982 right-of-way decision affecting
these Native allotments was 5 years before Interior started applying
the relation back doctrine to Native allotments. The decision was based
on a 1979 Memorandum of Understanding between BLM and BIA and not on
the relation back doctrine.
5. GAO has no position on this case and did not intend to comment on
the merits of this case. We have revised the footnote by deleting the
phrase "in error" and we have noted Copper Valley's appeal to the IBLA.
[End of section]
Appendix VII: GAO Contacts and Staff Acknowledgments:
GAO Contacts:
Barry T. Hill, (202) 512-3841 Jeffery D. Malcolm, (202) 512-6536:
Staff Acknowledgments:
In addition to those individuals named above, John Delicath, Doreen
Stolzenberg Feldman, José Alfredo Gómez, Paul Staley, Carrie Wilks, and
Arvin Wu made key contributions to this report.
(360421):
FOOTNOTES
[1] Act of May 17, 1906, ch. 2469, 34 Stat. 197 (1906). Repealed by
Pub. L. No. 92-203, § 18(a), 85 Stat. 688, 710 (1971).
[2] The terms right-of-way and easement are used interchangeably to
describe the right of one party to use a specific part of the land of
another for certain designated purposes, such as building, using, or
maintaining a road or utility line.
[3] Adjudication in this context is the administrative process for
determining a Native applicant's entitlement to an allotment.
[4] 43 C.F.R. § 4.410.
[5] See, e.g., Golden Valley Electric Ass'n, 85 IBLA 363 (1985),
vacated, 98 IBLA 203 (1987).
[6] Treaty concerning the Cession of the Russian Possessions in North
America by his Majesty the Emperor of all Russias to the United States
of America. Article III states that "[t]he uncivilized tribes will be
subject to such laws and regulations as the United States may, from
time to time, adopt in regard to aboriginal tribes of that country." 15
Stat. 539, 542 (1867).
[7] Act of May 17, 1906, ch. 2469, 34 Stat. 197 (1906).
[8] 43 C.F.R. § 2561.0-8.
[9] Act of August 2, 1956, ch. 891, 70 Stat. 954 (1956). The 1956 Act
also authorized Native allotees, or their heirs, to sell their
allotments.
[10] Pub. L. No. 92-203, § 18(a), 85 Stat. 688, 710 (1971). However,
under what is commonly called the Alaska Native Vietnam Veterans
Allotment Act (Pub. L. No. 105-276, § 432, 112 Stat. 2461, 2516-2518
(1998), as amended by Pub. L. No. 106-559, § 301 114 Stat. 2778, 2782
(2000), codified at 43 U.S.C. § 1629g), Congress allowed certain Alaska
Native Vietnam-era veterans who missed applying for an allotment due to
military service, to apply for a Native allotment under terms of the
1906 Native Allotment Act. Subsequently, there were an additional 743
applications for about 1,000 allotment parcels submitted before the
January 2002 deadline.
[11] Pence v. Kleppe, 529 F.2d 135 (9TH Cir. 1976).
[12] Aguilar v. United States, 474 F. Supp. 840 (D. Alaska 1979).
[13] Pub. L. No. 85-508, § 6(a)-(b), 72 Stat. 339, 340 (1958).
[14] Pub. L. No. 96-487, § 905(a), 94 Stat. 2371, 2435-36 (1980).
[15] 94 Stat. 2435, codified at 43 U.S.C. § 1634.
[16] The act, as amended, directs Interior at the request of a Native
entity, to contract with Indian tribes or tribal organizations to carry
out the services and programs the federal government provides to
Indians. Interior must accept a tribal organization's contract proposal
unless the Secretary makes certain specific findings that the
organization cannot adequately carry out the program or function. Pub.
L. No. 93-638, 88 Stat. 2203, 2206 (1975), as amended by Pub. L. No.
103-413, 108 Stat. 4250, 4270 (1994), codified at 25 U.S.C. § 450f and
25 U.S.C. § 458cc, respectively.
[17] 25 C.F.R. § 169.12.
[18] See, e.g., State of Alaska v. Heirs of Dinah Albert (Albert
Allotment), 90 IBLA 14 (1985) and Golden Valley Electric Ass'n (Irwin
Allotment), 85 IBLA 363 (1985), citing United States v. Flynn, 53 IBLA
208 (1981). According to the IBLA opinion on the Albert allotment, the
State of Alaska had represented in a brief that where state right-of-
way grants preceded the filing of an allotment application, but
postdated the alleged use and occupancy, BLM had, in the past, issued
allotment certificates subject to such state rights-of-way. 90 IBLA at
19, n.7. On reconsideration of the Golden Valley Electric case, the
IBLA shifted its policy and adopted the relation back rule, voiding the
rights-of way. 98 IBLA 203 (1987).
[19] See, e.g., Golden Valley Electric Ass'n (On Reconsideration), 98
IBLA 203, 207 (1987); State of Alaska, Golden Valley Electric Ass'n,
110 IBLA 224 (1989).
[20] See, e.g., Alaska v. Babbit (Foster), 75 F.3d 449 (9TH Cir. 1995);
Alaska v. Babbit (Albert), 38 F.3d 1068 (9TH Cir. 1994).
[21] See appendix III for the status of all 34 Native allotments that
Alaska Realty and Copper Valley identified as having possible
conflicts.
[22] There is precedent for Interior to readjudicate Native allotment
land conveyances. After the district court's decision in Aguilar v.
United States, 474 F. Supp. 840 (D. Alaska 1979) (when Interior finds
that an Alaska Native is entitled to an allotment that has been
conveyed to a third party, it has a duty to initiate proceedings to
recover title to the land), Interior has held "Aguilar hearings" to
determine whether land was inappropriately conveyed, and if so, to
recover title to the land.
[23] Pub. L. No. 86-70, 73 Stat. 141 (1959).
[24] The utility in this case was Copper Valley.
[25] Revised Statue 2477 (R.S. 2477) provided that: "the right-of-way
for the construction of highways over public lands, not reserved for
public uses, is hereby granted." Congress repealed R.S. 2477 as part of
its enactment of the Federal Land Policy and Management Act of 1976
(Pub. L. No. 94-579, § 706(a), 90 Stat. 2793 (1976)), but it expressly
preserved R.S. 2477 rights-of-way that already had been established.
[26] United States v. Gates of the Mountains Lakeshore Homes, Inc., 732
F.2d 1411 (9TH Cir. 1984).
[27] Fisher v. Golden Valley Electric Ass'n, Inc., 658 P.2d 127 (Alaska
1983).
[28] BLM's 1982 action also covered Nicolas Tyone's (AA-6495)
unapproved Native allotment. However in 1987, Copper Valley applied to
BIA for a right-of-way across this allotment, which was granted in
1996.
[29] Florence Sabon's allotment, however, has yet to be certified.
Additionally, it should be noted in the case of Florence Sabon's
allotment, that while Copper Valley never obtained a right-of-way for
the electric line across the allotment, BLM nevertheless, applied the
relation back doctrine to declare the nonexistent right-of-way null and
void. As a result, the Florence Sabon allotment is generally considered
an example of the relation back doctrine rather than as an allotment
for which Copper Valley never obtained a valid right-of-way. Copper
Valley has appealed BLM's decision; the appeal is currently before the
IBLA (IBLA 98-351).
[30] The three cases in which Copper Valley was able to negotiate a
right-of-way and compensate Native allottees for use of the land are:
Howard Adams (1998 right-of-way), Delores Lausen (1997 right-of-way),
Nicolas Tyone (1996 right-of-way).
[31] Not included in the 13 cases, are several Native allotments where
Copper Valley had initiated the right-of-way process for a new line to
be constructed along the Old Edgerton Highway. This proposed line has
not yet been built.
[32] Lands allotted in severalty to Indians may be condemned for any
public purpose under the laws of the State or Territory where they are
located in the same manner as land owned in fee may be condemned, and
the money awarded as damages shall be paid to the allottee (25 U.S.C. §
357). Under Alaska state law a public utility may exercise the power of
eminent domain for public utility uses (Alaska Stat. § 42.05.631).
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