Vol. 28, No.12 Week of March 19, 2023
Providing coverage of Alaska and northern Canada's oil and gas industry

Court remands ANWR boundary case to IBLA to consider 1951 maps

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Kristen Nelson

Petroleum News

U.S. District Court Judge Sharon Gleason ruled March 9 in favor of the state of Alaska on the state’s motion to supplement the administrative record in a case based on appeal of a 2020 decision by the Interior Board of Land Appeals.

The issue before the IBLA involved some 20,000 acres on the boundary of the Arctic National Wildlife Refuge between the Canning and Staines rivers and along the northwestern boundary of ANWR which the state claims. The U.S. Department of the Interior disagrees.

The case is based on Public Land Order No. 2214 issued by the U.S. Fish and Wildlife Service in 1960 which established ANWR. The state claims some 20,000 acres and has requested that acreage be conveyed to it; Interior’s Bureau of Land Management rejected the state’s request. BLM also filed a Notice of Filing of Plats of Survey describing formally a portion of the disputed land based on a 2012 survey adopting a boundary along the Staines River. The state protested.

The state appealed those actions to the IBLA, which affirmed the actions in 2020. The state seeks judicial review of the decision pursuant to the Administrative Procedure Act.

“At the heart of the challenged IBLA decision is the meaning of language in PLO 2214 describing ANWR’s northwestern boundary as ‘the mean high water mark of the extreme west bank of the Canning River,’” the court said, language which originated with the USFWS in the 1957 land withdrawal for ANWR.

Language issue

The state maintains that the language establishes the ANWR boundary as the western bank of the Canning River, while federal defendants maintain that the 1957 withdrawal application language and PLO 2214 language, “the westernmost distributary of the Canning River,” actually refer to the Staines River, the court said.

The March 9 decision and remand comes after the state moved to supplement the administrative record with 20 U.S. Geological Survey topographic maps dated 1951.

“For reasons left untold,” Gleason said in her ruling, “the State did not present the 1951 Maps to the IBLA during the underlying proceedings, so the IBLA did not review them and they did not become part of the Administrative Record designated in this case.”

The federal defendants’ primary evidence is a metes and bounds description and accompanying map prepared by USFWS in 1957 and a “nearly identical description of the boundary” in the 1957 Withdrawal Application and the official legal description of the boundary in PLO 2214, the court said.

IBLA reviewed and cited in its decision three USGS quadrangle maps submitted by the state which contain the year 1955. “Despite the 1955 marking, neither party identifies when, exactly, the USGS finalized and published these maps,” the court said, with the state claiming they are based on aerial photographs taken in 1955 but not published until later.

The court said the issue of the year is critical, because the state maintains “that no government entity had physically surveyed ANWR’s proposed boundary by 1957 when USFWS drafted the metes and bounds description adopted in the 1957 Withdrawal Application and PLO 2214.”

1951 maps

The state argues the court must look to USGS quadrangle maps published before 1957 and has moved to supplement the record with 20 USGS topographic maps dated 1951.

The court said while it is unclear why the state failed to present the 1951 maps to the IBLA, it did properly raise “the general argument those maps support during the administrative proceedings.”

“That argument, to be clear, is that the documents available to USFWS when it drafted the legal description of ANWR in the 1957 Withdrawal Application showed that the Canning and Staines Rivers were distinct hydrologic features,” the court said. “Before the IBLA, the State called into question the topographic maps BLM used to support its determination of ANWR’s boundaries, characterizing them as ‘not field-checked.’”

The court said while the state is seeking to present new evidence, it is not seeking to raise new arguments.

There is no indication, the court said, that the state was aware of the importance of the 1951 maps during the IBLA proceedings. “To the contrary, the State raised concerns regarding the use of non-field-checked topographic maps during the IBLA proceedings, and then the IBLA issued a decision that heavily relied on the 1955 Maps.”

Map updating issues

The court said the state “strongly suggests” that the 1951 maps were used in drafting the ANWR boundary legal description in PLO 2214, and presented a declaration from the Alaska Department of Natural Resources’ Division of Mining, Land and Water’s chief surveyor, who said “the 1955 Maps are an updated version of the 1951 Maps but ‘had not been published in 1957,’ meaning that ‘the update was in the process of being compiled in 1957 or that work on an update began after 1957.’” Thus, in 1957, the update was in the process of being compiled or work began after 1957, so in 1957 “the available USGS 1:250,000 quadrangle maps were” the 1951 maps, the court said.

The IBLA, however, relied on the 1955 maps in determining the drafters’ intent, which the state believes creates a gap in the administrative record, the court said.

The court said there is an inclination to supplement administrative records when “the proffered documents are relevant” and help the court “evaluate whether the agency considered all the relevant factors.”

The court said it “finds that the IBLA should consider and address the 1951 Maps in determining ANWR’s boundary.”

It grants the state’s motion to supplement the administrative record and remands “the matter to the IBLA to undertake a reasoned inquiry into how, if at all, the 1951 Maps affect its analysis and decision.”

The court said it will retain jurisdiction during the remand and said if the state seeks to proceed with its administrative appeal after reviewing IBLA’s decision on remand, the parties are to meet and file a proposed scheduling order setting out deadlines for their merits briefs.


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