Full opinion text
OPINION FITZGERALD, Chief Judge. In 1891 and 1926, Congress extended the operation of the federal townsite laws to Alaska, including the Territory’s Native people, “[u]ntil [it] otherwise ordered.” 26 Stat. 1099, 43 U.S.C. § 732 (repealed 1976); 44 Stat. 629, 43 U.S.C. §§ 733-736 (repealed 1976). The present action raises issues having to do with the impact of two recent congressional enactments, the Alaska Native Claims Settlement Act of 1971 (ANCSA), 43 U.S.C. §§ 1601-1628, and the Federal Land Policy and Management Act of 1976 (FLPMA), 43 U.S.C. §§ 1701-1782, upon the continued operation and administration of the townsite laws in Alaska. This court must now determine whether ANCSA or FLPMA terminated or modified the operation of the townsite laws on lands that had been “segregated” for townsite locations and for which subdivisional surveys had been requested prior to the enactment of ANCSA and FLPMA, but which had not yet been occupied or subdivided until after the legislation became effective. The plaintiffs, three native village corporations organized under the provisions of ANCSA and the village and municipal councils for those villages, contend that ANCSA terminated the operation of the townsite laws on all townsite lands that were vacant and unsubdivided at the time of ANCSA’s passage in 1971. They suggest that the Secretary of the Interior erred when he failed to withdraw these lands from further occupancy under the townsite laws, but instead permitted both native and non-native individuals to initiate claims on these lands under the townsite laws. The intervenors, who are the traditional village councils of two unincorporated native villages, contend that ANCSA did not terminate or alter the applicability of the federal townsite laws on vacant and unsubdivided townsite lands, and agree with the Secretary’s interpretation of ANCSA’s effect on the administration of townsite lands. However, the intervenors contend that the Secretary erred following the enactment of FLPMA in 1976, when he interpreted FLPMA to foreclose any new entries under the townsite laws on townsite lands which were then vacant and unsubdivided. The Secretary has applied ANCSA as not altering the operation of the townsite laws on lands that had been previously segregated for townsites. However, he has interpreted FLPMA to foreclose any new entries under the townsite laws after 1976. All parties have moved for summary judgment. Because I find the Secretary’s interpretation of the statutes to be reasonable, I grant summary judgment in favor of the federal defendants against both the plaintiffs and the intervenors. THE STATUTES 1. Federal Townsite Acts and Regulations In the Townsite Act of March 3, 1891, 26 Stat. 1099, 43 U.S.C. § 732 (repealed 1976), Congress extended the federal townsite laws to Alaska. It provided that the Secretary of the Interior could designate one or more townsite trustees, who would be authorized to “enter” public lands in various parts of Alaska “for town-site purposes,” in compliance with the federal townsite laws, see 43 U.S.C. § 718 (repealed), and who could set aside those lands “for the several use and benefit of the[ir] occupants.” 26 Stat. 1099. Congress also directed the Secretary to promulgate regulations under which trusts could be executed “in favor of the inhabitants of [each] town site,” the lands in each townsite could then be surveyed into lots, and the vacant lots sold, with the proceeds going to the trust. 26 Stat. 1099-1100. In the Alaska Native Townsite Act (ANTA) of May 25, 1926, 44 Stat. 629, 43 U.S.C. §§ 733-736 (repealed 1976), Congress specifically authorized the extension of the townsite laws and the issuance of townsite deeds to Alaskan natives. See S.Rep. No. 793, 69th Cong., 1st Sess. 1-2 (1926). Congress provided that title to any lands conveyed to natives under the town-site laws would be inalienable, except as specifically approved by the Secretary, and that such lands would not be subject to taxation, seizure for nonpayment of debts, or adverse possession. 44 Stat. 629. In 1948, Congress authorized the townsite trustees to issue deeds to natives under the townsite laws that were unrestricted “as to sale, encumbrance, or taxation” (but not as to seizure for nonpayment of debts, other than obligations to the federal government), if the Secretary found that the individual native was “competent to manage his own affairs” and if the native specifically petitioned for an unrestricted deed. 62 Stat. 35, 43 U.S.C. § 737; 43 CFR §§ 2564.-6-2564.7. The Secretary promulgated detailed regulations implementing the statutes and establishing procedures for entering upon and obtaining title to public lands under the townsite laws in Alaska. Occupants taking up lands in a proposed townsite were required to apply to the Bureau of Land Management (BLM) for a survey of the exterior boundaries of the townsite. However, excluded from the proposed townsite were those lands required for government purposes and any claims relating back to Russian occupancy. The exterior boundary survey was performed at government expense. 43 CFR § 2565.1(a); See Memorandum of December 7, 1976 from Regional Solicitor John M. Allen to Townsite Trustee at 4 (indicating that procedures required under 43 CFR § 2565 for “Non-Native Townsites” in Alaska also apply to native townsites). Once the survey of the town-site’s exterior boundaries had been approved by the Secretary, a majority of its occupants had to petition the Secretary for appointment of a townsite trustee and for survey of the townsite’s interior “into lots, blocks, and municipal reservations for public use.” 43 CFR § 2565.1(b). The filing of this petition was noted on the public land records, and the Secretary has held that it operated to “segregate the land from further disposal under the public land laws.” Memorandum of Feb. 20, 1979 from Regional Solicitor John M. Allen to Townsite Trustee at 2-3 [hereinafter cited as Allen Memorandum]; Affidavit of George Gustafson at 2, November 19, 1982 (emphasis in original) [hereinafter cited as Gustafson Affidavit]; see 43 CFR § 2091.4. After the petition was filed, the Secretary designated a trustee, who filed any necessary applications and proof of occupancy for the lands in the townsite, collected any required purchase prices from the inhabitants, and then made formal entry of the townsite. 43 CFR §§ 2565.1(e)-2565.2; Gustafson Affidavit, supra at 2. Following these steps, those areas of the townsite that were occupied were “subdivided by the United States into blocks, lots, streets, alleys, and municipal public reservations,” with the expense of this subdivisional survey borne through lot-by-lot assessment. 43 CFR § 2565.3(a)-(b). The other areas of the townsite remained unsubdivided until they were subsequently occupied. Gustafson Affidavit, supra, at 2. Once the plat of each subdivisional survey was approved by the BLM, the Secretary issued a patent for the lands included in the survey to the trustee, who in turn issued deeds to all occupants who had fully paid any purchase price and assessments required for their lots. 43 CFR §§ 2565.-3(c)-2565.4. Non-natives received unrestricted deeds for their lots, making them freely alienable, taxable, and subject to seizure for non-payment of debts and to adverse possession, whereas natives could either obtain unrestricted or restricted deeds (under which their lots would not be freely alienable or subject to taxes or seizure), depending upon their requests and the Secretary’s determinations concerning their “competen[ce] to manage [their] own affairs.” 43 CFR §§ 2564.4, 2564.6-2564.7. The date that each particular subdivisional survey was approved represented a cutoff date for new occupancy claims on the lands contained in that survey: no individual could begin occupying any of these lands under the townsite laws after that date. 43 CFR § 2565.3(c). Once each subdivisional survey had been completed, all lots within that survey that remained unoccupied and unclaimed could be sold by the trustee at a public sale. 43 CFR § 2564.5. The trustee and the Secretary could use any proceeds from selling these lots to make public improvements in the townsite; if the inhabitants had already formed a municipal corporation, all proceeds were turned over to the municipality “for [its] use and benefit,” and all lots that had not been sold were deeded to the municipality. 43 CFR § 2565.7; Allen Memorandum, supra, at 2. When all lands in the original townsite had been progressively subdivided and distributed in this manner, the townsite trust was terminated. 2. ANCSA’s Impact on the Administration ofTownsites On December 18, 1971, Congress enacted ANCSA and authorized the conveyance of approximately 44 million acres to Alaska native corporations. In order to provide native village corporations with an opportunity to acquire lands in the vicinity of their villages, ANCSA Section 11(a)(1) withdrew all public lands surrounding native villages “from all forms of appropriation under the public land laws,” except for those lands already “subject to valid existing rights.” 43 U.S.C. § 1610(a)(1) (emphasis added). ANCSA section 12(a)(1) gave village corporations three years from the passage of the act to select lands out of these withdrawn areas. 43 U.S.C. § 1611(a)(1). In administering the ANCSA land selection process, the Secretary was required to determine whether ANCSA’s land withdrawal provisions applied to lands that had been “segregated” as townsites prior to ANCSA’s enactment based upon the filing of petitions by their oc.cupants for appointment of townsite trustees and subdivisional survey, but which had not yet been fully distributed under the townsite laws. On June 30, 1972, the Director of the BLM issued an unpublished memorandum which concluded that as long as a group of occupants had filed their petition prior to ANC-SA’s enactment, the lands in their townsite were “subject to valid existing rights” under the terms of ANCSA section 11(a)(1), and therefore had not been withdrawn by ANCSA from further distribution under the townsite laws. The Acting Secretary of the Interior approved this memorandum on July 13, 1972, and its contents were made widely known to native corporations selecting lands under ANCSA. Affidavit of Neil Bassett, Chief of Division of Resources, BLM State Branch of Lands and Mineral Management, at 2, November 18, 1982. In relevant part the memorandum provides: The application for survey as a town-site, when filed, is considered to segregate the lands involved. The interest of the trustee, on behalf of the occupants, therefore constitutes a valid existing right to the lands within the inchoate townsite, within the meaning of Sec. 11(a)(1) of the 1971 Act [ANCSA]. This does not include those tracts settled upon or occupied by individual Natives or groups of Natives where no action has been taken toward application or survey as a Native townsite. The lands occupied by those Natives would be subject to withdrawal and disposition under the terms of Secs. 11 and 14 of the 1971 Act; the segregated inchoate townsite lands would not. In those cases where an application for a townsite survey .is on file, or where the Trustee has made application for patent or final entry has been made by him, and the lands are therefore segregated, all before December 18, 1971, we propose to instruct the Townsite Trustee to complete his trust pursuant to the regulations in 43 CFR 2564, under the authority of the 1926 [Townsite] Act, supra, and other applicable law. Upon approval of the plats of survey for these townsites the Trustee will receive a patent for the surveyed lands and will thereafter issue deeds to the lot occupants, and to each such municipality for the unoccupied and unclaimed lots in the townsite, upon incorporation of the municipality under Alaska law. Memorandum of June 30, 1972 from Director of BLM to Secretary of the Interior, at 1 (emphasis added). The Secretary’s view was that from the moment a proposed townsite became “segregated,” all of the lands it contained were subject to valid existing rights: the rights of occupants to the lands they occupied, and the right of the municipality to all the other unoccupied lands within the town-site’s exterior boundaries. As the Regional Solicitor explained in a February 20, 1979 memorandum, “[a]ll of the land within the segregated townsite is therefore covered by pre-existing rights — held by either individual occupants or the municipality itself.” Allen Memorandum, supra, at 4. Admittedly, the municipality’s rights to unoccupied lands that had not yet been subdivided were “subject to being preempted by an individual occupant until the date of subdivisional survey approval.” Id. at 5. However, despite the possibility that the municipality’s rights to these lands might be partially preempted in the future, the Secretary’s position was that these rights, which existed at the time of ANCSA’s enactment, were sufficient to constitute “valid existing rights” under ANCSA section 11(a)(1), and therefore precluded withdrawal of the lands to which they applied. Id. at 4-5. 3. FLPMA’s Impact on the Administration of Townsites Congress enacted FLPMA in 1976 in order to modernize, simplify, and systematize the nation’s public land laws, “weed out” any statutes relating to public lands that were obsolete, and eliminate any inconsistencies in public lands administration. 43 U.S.C. § 1701; H.R.Rep. No. 1163, 94th Cong., 2d Sess. 1-2, reprinted in 1976 U.S.Code Cong. & Ad.News 6175-76. FLPMA’s legislative history reveals that Congress regarded the townsite laws in general as “obsolete” and inadequate for the needs of “[m]odern urban development”; moreover, the House Report specifically noted that “[t]he Alaska Native Claims Settlement Act [had] granted to the Natives the lands in ‘Native villages,’ [thus] rendering the [Alaska] townsite laws obsolete with respect to Natives.” Id. at 25-26, reprinted at 6199-6200. As a result, FLPMA § 703(a), 90 Stat. 2789-90, repealed the Alaska townsite laws of 1891 and 1926, along with a number of other laws. However, FLPMA’s general savings provision, § 701(a), 90 Stat. 2786, provides that: Nothing in this Act ... shall be construed as terminating any valid lease, permit, patent, right-of-way, or other land use right or authorization existing on the date of approval of this Act [October 21, 1976). FLPMA § 701(a), 90 Stat. 2786 (emphasis added). The Secretary interpreted FLPMA’s provision repealing the Alaska townsite laws in conjunction with its savings provision, and concluded that the effect of FLPMA was to close all townsites to new entries and occupancies after October 21, 1976, while preserving the existing rights of individual occupants and municipalities to townsite lands as they stood on that date. The Regional Solicitor’s February 20, 1979 memorandum to the townsite trustee outlines the Secretary’s position: The October 21, 1976 repeal of the townsite laws was clearly [“aimed at preventing rights from accruing” under the townsite laws] in the future. Existing rights were expressly saved by Section 701(a).... The rights in existence on the date of repeal were the rights of individuals then in occupancy and the right of the municipality to any unoccupied lands. Persons not in occupancy on that date had no rights “existing on the date of approval of this Act” [quoting from FLPMA § 701(a), the general savings provision]. Therefore the repeal in effect closed all townsites to further entry. Allen Memorandum, supra, at 4 (emphasis added). This position of the Secretary is consistent with his position on the interpretation of the term “valid existing rights” in ANC-SA Section 11(a)(1). The Secretary’s position in both instances was that at any given point in the development of a townsite, the only “valid existing rights” to the town-site’s lands are the rights of occupants to the lands they currently occupy and the rights of the municipality to all unoccupied lands within the townsite’s boundaries. According to the Secretary, since ANCSA did not expressly repeal the townsite laws, it left open the possibility that individuals could enter lands that had been previously unoccupied and unsubdivided, and could thus “preempt” the right of the municipality to those lands. In contrast, since FLPMA expressly repealed the townsite laws,' it eliminated the means by which individuals could enter and make claims upon vacant and unsubdivided townsite land, and therefore eliminated any possibility that the municipality’s rights to these lands could be preempted. See Allen Memorandum, supra, at 4-5. FACTUAL BACKGROUND The plaintiffs are the village native corporations, village councils, and municipal councils for Aleknagik, Ekwok, and Nondalton, three native villages located in the Bristol Bay region of southwestern Alaska. In 1960-1961, the village councils for these three villages petitioned the Secretary to establish townsites in their villages under ANTA section 3, 43 U.S.C. § 735. Following the filing of these petitions, the town-site trustee made formal entry of each proposed townsite, and initial subdivisional surveys were performed; the Secretary approved the plats of each subdivisional survey in 1969-1970. Aleknagik’s townsite consisted of 124.5 acres, of which 66.3 acres were left unsubdivided; Ekwok’s townsite encompassed 469.4 acres, of which 413.31 acres were left unsubdivided; and Nondalton’s townsite included 629.89 acres, of which 494.83 acres were left unsubdivided. Between 1972 and 1977, the Secretary issued patents to the townsite trustee for the subdivided portions of all three town-sites, and the trustee awarded deeds to those individuals occupying lots in the subdivided areas on the dates that the subdivisional survey plats were approved. Moreover, the trustee has conveyed all vacant lots in the subdivided areas of these town-sites to the three municipalities of Aleknagik, Ekwok, and Nondalton, in accordance with this court’s decision in City of Klawock v. Gustafson, No. K 74-2 Civil (D. Alaska, unpublished oral opinion of Nov. 12, 1976). See also City of Klawock v. Gustafson, 585 F.2d 428 (9th Cir.1978) (ruling only on city’s request for attorneys’ fees in district court action). During the three-year period for making land selections after the passage of ANC-SA in 1971, the Aleknagik, Ekwok, and Nondalton village corporations were all directed by the BLM not to select any lands that had been segregated within their villages’ townsites, even to the extent that those lands remained unsubdivided. These directions were consistent with the 1972 memorandum written by the BLM Director and approved by the’ Acting Secretary, which had concluded that lands segregated within townsites were “subject to valid existing rights” under ANCSA section 11(a)(1), and therefore were not available for selection by village corporations under ANCSA section 12(a)(1). After the ANCSA land selection period had expired, the BLM advertised that the unsubdivided lands in the three townsites were all open to entry by the general public under the townsite laws. The record indicates that one nonnative, defendant Basil Atkinson, entered the unsubdivided portion of the Ekwok townsite prior to the repeal of the townsite laws on October 21, 1976, and built a residence there.. Between eighty and ninety non-native individuals staked out lots and built improvements upon the unsubdivided portion of the Nondalton townsite during and after the summer of 1977. No town-site deeds were issued to Atkinson or any of these other individuals. The Secretary’s interpretation of FLPMA’s effect on townsite administration, contained in the Regional Solicitor’s February 20, 1979 memorandum, supports the plaintiffs’ claim that all individuals who began their occupancies of townsite lands after 1976 (which would include all eighty to ninety individual, non-federal defendants in this action, except Atkinson) have no entitlement in those lands under the town-site laws, and therefore should be ejected. See Aleknagik Natives Limited v. Andrus, 648 F.2d 496, 504 & n. 4 (9th Cir.1980). The February 20, 1979 memorandum explicitly states that: “Persons whose occupancy of Townsite lands commenced after October 21, 1976, have no rights in those lands under the Townsite laws.” Allen Memorandum, supra, at l. The plaintiffs originally brought this action in 1977. In 1978, they applied for a preliminary injunction to enjoin further encroachment upon their villages’ townsites. This court denied that application and dismissed the plaintiffs’ action for failure to exhaust administrative remedies. The Ninth Circuit reversed, holding that the plaintiffs’ failure to exhaust should not preclude the bringing of their action, and concluding that a preliminary injunction should have been granted, because “the plaintiffs [had] a substantial probability of success on the merits and the balance of hardships tip[ped] in their favor.” Aleknagik Natives Limited v. Andrus, 648 F.2d 496, 504 (9th Cir.1980). The Secretary petitioned for rehearing, and in denying his petition, the Ninth Circuit emphasized the preliminary nature of its decision: Our decision merely requires that the status quo be maintained until this suit can be resolved on the merits. It is true that the plaintiffs have demonstrated a strong likelihood of success on the merits, but it still remains to be decided whether they will ultimately prevail. Id. at 505. The plaintiffs’ action was then remanded to this court, the intervenors joined in the action, and the parties cross-moved for summary judgment. THE PLAINTIFFS’ CONTENTIONS The plaintiffs contend that the Secretary’s interpretation of the effect of ANC-SA section 11(a)(1) on unsubdivided town-site lands, contained in the BLM Director’s June 30, 1972 memorandum, was erroneous. They seek a declaration that ANCSA section 11(a)(1) withdrew from the townsite trustee’s control all townsite lands that were vacant and unsubdivided as of December 18, 1971, that these lands must all be conveyed by the Secretary to the Aleknagik, Ekwok, and Nondalton village corporations, and that any current occupants of these lands must be ejected. The plaintiffs also contend that by failing to elicit native participation prior to arriving at his interpretation of ANCSA section 11(a)(1), and by failing to publish that interpretation in the Federal Register, the Secretary violated ANCSA section 2(b), 43 U.S.C. § 1601(b), ANCSA section 25, 43 U.S.C. § 1624, the Freedom of Information Act, specifically 5 U.S.C. § 552(a)(1)(D), and the Administrative Procedure Act, specifically 5 U.S.C. §§ 553(b) and (d). In the alternative, the plaintiffs contend that even if the unsubdivided townsite lands were not withdrawn under ANCSA section 11(a)(1), the Secretary and townsite trustee violated ANTA section 3 by not administering those lands exclusively for natives. Therefore, the plaintiffs seek an order that all the individual, non-federal defendants must be ejected from their villages’ townsite lands, and that all townsite lands in their villages that were unsubdivided as of December 18, 1971 must be deeded to their municipal corporations. THE INTERVENORS' CLAIMS The traditional village councils of English Bay and Port Graham, two native villages on the southwestern tip of the Kenai Peninsula, have intervened in this action and have brought cross-claims against the federal defendants. These village councils are the only governing bodies for their villages: neither village has organized a municipal corporation. Both village councils petitioned the Secretary to establish townsite trusts in their villages in 1963; initial subdivisional surveys were performed in both villages, and the Secretary approved both survey plats prior to December 18, 1971. The townsite trustee made formal entry of both townsites and was issued patents to the subdivided portion of the English Bay townsite in 1972 and the subdivided portion of the Port Graham townsite in 1975. Both townsites still contain some unsubdivided lands. The intervenors agree with the Secretary (and disagree with the plaintiffs) concerning the validity of the Secretary’s position that lands segregated as townsites prior to December 18, 1971 were “subject to valid existing rights” under ANCSA section 11(a)(1), and were therefore not withdrawn for selection by native corporations. However, they part company with the Secretary concerning his interpretation of the effect of FLPMA’s repeal of the townsite laws upon the administration of already existing townsites. The intervenors contend that the Secretary’s position, expressed in the Regional Solicitor’s February 20, 1979 memorandum, that FLPMA foreclosed the initiation of all new occupancy claims under the townsite laws after October 21, 1976, even in already existing townsites, is erroneous. They contend that in repealing the townsite laws, FLPMA was only intended to preclude the Secretary from creating new townsites, not to prevent the townsite trustee from continuing to administer the land distribution process in existing town-sites and thereby effectuating the purposes for which those townsite trusts had been created. The intervenors maintain that FLPMA’s repeal of the townsite laws did not and could not revoke their established townsite trusts. They assert “vested, beneficial interests, as communities” in having the townsite trustee continue to administer their trusts until all their townsite lands have been subdivided, and in having their individual members permitted to initiate claims to lots in their townsite lands that were unsubdivided as of October 21, 1976. In particular, the intervenors note that one of the main purposes for which their townsite trusts were originally established was to provide the members of their villages with the opportunity to acquire title to lands with protective restrictions upon taxation, execution, and alienation. They contend that if the trustee is not permitted to continue issuing these restricted deeds, and if their unsubdivided townsite lands are simply transferred to a municipal or ANCSA corporation, this important purpose of their townsite trusts will not be effectuated. Therefore, the intervenors seek a declaration from this court requiring the townsite trustee to continue administering their trusts and issuing deeds until their townsite lands are fully subdivided. OTHER AFFECTED INTERESTS The record reveals that the determination in this action of ANCSA’s and FLPMA’s effects upon townsite lands administration will have a significant impact upon many individuals’ entitlements to townsite lands throughout Alaska. At least 295 individuals in 31 villages, including 191 natives and 104 non-natives or entities, have already received lot awards from the townsite trustee, totaling 332 parcels, for townsite lands that were vacant and unsubdivided at the time of ANCSA’s passage. Moreover, many other individuals may still apply for deeds to lands that were vacant and unsubdivided on December 18, 1971, but which they began to occupy prior to October 21, 1976: there are at least 18 villages which were unsubdivided when ANCSA was passed, for which no applications for lot awards have yet been taken. Furthermore, at least 249 deeds to 724 parcels have already been awarded to municipal corporations out of lands that were vacant and unsubdivided on December 18, 1971. All of these lot awards may be at risk if the plaintiffs’ interpretation of ANC-SA section 11(a)(1) is correct. The record is less explicit concerning the number of individuals who will be directly affected by a decision on the validity of townsite occupancies that commenced after October 21, 1976. As noted above, in the Nondalton townsite alone, eighty to ninety individuals began their occupancies after this date. It is likely that other individuals in the state are similarly situated. The records in this case reveal that the townsite trustee may have led individuals to believe that they could still initiate valid townsite occupancies in existing townsites after the passage of FLPMA. See Deposition of BLM State Director Curtis McVee, at 8, 38; Royal Harris, 45 IBLA 87, 88 (1980). Moreover, based upon the arguments of the intervenors, there are presumably a number of natives in Alaska who seek to obtain restricted deeds for their residential lots, which they can acquire only under the terms of the townsite laws and regulations. These individuals will presumably be disadvantaged if the Secretary’s interpretation of the effect of FLPMA upon the townsite laws is upheld. ANALYSIS 1. Scope of Review In reviewing the plaintiffs’ and intervenors’ challenges to the Secretary’s interpretation of ANCSA sections 11(a)(1) and 12(a)(1) and FLPMA section 701(a) and 703(a), and the effect of these provisions upon townsite administration, I must accord the Secretary’s interpretation considerable deference. Markair, Inc. v. Civil Aeronautics Board, 744 F.2d 1383, 1385 (9th Cir.1984); Jones v. Giles, 741 F.2d 245, 249 (9th Cir.1984). The Secretary is entitled to particular deference in the present action, because he is the official primarily responsible for interpreting and implementing ANCSA, FLPMA and the townsite laws, and for promulgating and administering townsite regulations. The Ninth Circuit has indicated that “[p]roperly accorded, such deference entails affirmance of any interpretation ‘within the range of reasonable meanings the words permit,’ comporting with the statute’s clear purpose.” Alcaraz v. Block, 746 F.2d 593, 606 (9th Cir.1984) (citation omitted). It is not this court’s function to substitute its judgment for that of the Secretary: [The court’s] task then, is not to interpret the statutes as we think best, but rather to inquire whether the [agency’s] construction was “sufficiently reasonable” to be accepted. “To satisfy th[is] standard it is not necessary for a court to find that the agency’s construction was the only reasonable one or even the reading the court would have reached if the question initially had arisen in a judicial proceeding.” Kunaknana v. Clark, 742 F.2d 1145, 1150 (9th Cir.1984) (quoting Western Pioneer, Inc. v. United States, 709 F.2d 1331, 1335 (9th Cir.1983)); accord, National Treasury Employees Union v. Federal Labor Relations Authority, 732 F.2d 703, 706 (9th Cir.1984) (“If an agency’s construction of the statute that it is primarily responsible for implementing is reasonably defensible, we may not reject that construction simply because we prefer another view”) (emphasis added). 2. Challenges to the Secretary’s Interpretation of ANCSA The plaintiffs challenge the Secretary’s interpretation that land which was vacant and unsubdivided on December 18, 1971, but which had previously been segregated within the exterior boundaries of a townsite, was “subject to valid existing rights” under the terms of ANCSA section 11(a)(1), and therefore was not withdrawn for selection by native village corporations under ANCSA section 12(a)(1). Because I conclude that the Secretary’s interpretation was “ ‘within the range of reasonable meanings [that] the words [of ANCSA section 11(a)(1) ] permit,’ ” and comports with the purposes of ANCSA, I must affirm the Secretary’s interpretation and reject the plaintiffs’ challenge. See Alcaraz, 746 F.2d at 606. The plaintiffs’ challenge centers upon the meaning of the term “valid existing rights,” as it applies to lands segregated for townsites prior to December 18, 1971. This term is not explicitly defined either in the text of ANCSA or in its legislative history. The plaintiffs and Secretary agree that on the date of ANCSA’s passage, individual occupants had “valid existing rights” to those townsite lands they currently occupied, and that village municipal corporations had “valid existing rights” to all unoccupied townsite lands for which a subdivisional survey had previously been approved. However, the plaintiffs reject the Secretary’s conclusion that village municipal corporations also had “valid existing rights” to all unoccupied townsite lands for which no subdivisional survey had yet been approved — rights which, the Secretary acknowledges, were subject to being preempted if individuals began occupying those lands before a subdivisional survey encompassing them was approved. See Allen Memorandum, supra, at 5. What is potentially troubling about the Secretary’s position that municipalities had “existing rights” to unoccupied, unsubdivided townsite lands on December 18, 1971 is that the municipalities neither possessed those lands on that date, nor was there any guarantee that they would ever possess them. Their “right” to the lands must be viewed as somewhat attenuated. It was contingent upon other occupants not taking up those lands under the townsite laws, as well as contingent upon the completion and approval of a subdivisional survey. However, if these two conditions were satisfied for a given set of lands, the municipality would receive title. It was not required to take any further action prior to acquisition. Thus, municipalities appear to have had a recognized property interest or right in the unoccupied lands that had been segregated as a townsite from the public domain. Since the rights of eventual ownership to townsite lands could be preempted only by individuals who fully complied with town-site requirements, municipalities’ entitlements to these lands would be superior to those of all other potential claimants. See 43 C.F.R. § 2091.4; Gustafson Affidavit, supra, at 2. Therefore, it was not unreasonable for the Secretary to conclude that municipalities had an entitlement to these lands under the townsite laws from the time the lands were segregated from the public domain. Moreover, the Secretary’s position is that the rights of municipalities to unoccupied, unsubdivided townsite lands were “valid” and “existing” on the date of ANCSA’s enactment, as those terms were used in ANCSA section 11(a)(1), even though the rights might not be irrevocable. According to the Secretary, even if these rights could someday be preempted, as long as they existed intact on December 18, 1971, they were sufficient, under the terms of section 11(a)(1), to prevent the townsite lands to which they applied from being withdrawn for selection by native villages. See Allen Memorandum, supra, at 5. Although I do not consider the Secretary’s interpretation of the term “valid existing rights” in this context to be the only possible one, I conclude that it is a reasonable reading of the words as they appear in ANCSA section 11(a)(1), and I must accept the Secretary’s interpretation. Moreover, the plaintiffs have failed to establish that the Secretary’s reading of section 11(a)(1) is unreasonable or unfounded. They argue that municipalities have no “vested” rights in townsite lands prior to approval of a subdivisional survey — a position which the Secretary would endorse — but they fail to address the Secretary’s interpretation that municipalities have “valid” rights to unoccupied townsite lands following a subdivisional survey. Plaintiffs contend that the “valid existing rights” which Congress sought to preserve in ANCSA, such as the rights of homestead entrymen, individuals with native allotments, and persons leasing property from the federal government, are all discussed in their own specific provisions in ANCSA. See, e.g., 43 U.S.C. §§ 1613(g) (lessees and permittees of government property), 1617(a) (individuals with native allotments), 1621(b) (homestead entrymen), 1621(c) (mining claimants). As a result, they suggest Congress did not intend to cover any town-site-related rights when it used the term “valid existing rights.” However, this argument proves too much. If the term “valid existing rights” does not encompass any rights or property interests derived from the townsite laws, then all individuals occupying townsite lands on December 18, 1971 who had not yet received deeds to their property must be ejected, and their lands must be conveyed to village corporations. This is clearly not consistent with the plaintiffs’ position. They are willing to concede that these occupants had rights that were protected under ANCSA section 11(a)(1). Furthermore, all of the provisions cited by the plaintiffs as enumerating “valid existing rights” were included in ANCSA because they altered the substantive requirements, timing, or procedures for maintaining these various types of property claims. Under the Secretary’s interpretation of ANCSA § 11(a)(1) and the townsite laws, ANCSA did not alter the requirements or procedure relating to townsite claims, and therefore, no specific provision regarding townsites was necessary. Thus, the absence of a provision discussing townsites in ANCSA is not inconsistent with the Secretary’s interpretation. The plaintiffs have therefore failed to demonstrate that the Secretary’s interpretation of ANCSA section 11(a)(1) conflicts with the provision’s language or that of other ANCSA provisions. The plaintiffs also contend that the Secretary’s interpretation of section 11(a)(1) conflicts with the purposes of ANCSA as a whole, and it is on this ground that they focus their strongest attack. Citing portions of ANCSA’s legislative history, they argue that Congress intended in ANCSA to provide native village corporations with the central lands in their villages, as well as with a “buffer zone” of surrounding lands, which would insulate these villages from outside influences and enable village residents to engage in non-commercial and subsistence activities. As a result, the plaintiffs argue, Congress intended to prevent lands in native villages from being appropriated by parties other than village corporations after 1971, and especially intended to prevent non-natives from entering and settling on these lands. Therefore, the plaintiffs maintain that the Secretary violated Congress’ intent and the purposes of ANCSA when he permitted the settlement of townsite lands to continue in native villages after 1971. While I agree with the plaintiffs that a major purpose of ANCSA was to preserve the integrity of native villages and native peoples’ ability to protect their traditional way of life, I do not agree that this was the sole purpose of ANCSA or that this purpose could only be achieved by turning over all vacant, unsubdivided townsite lands to village corporations. Congress was attempting in ANCSA to balance a great number of diverse interests, and to produce a fair, lasting, and comprehensive resolution of the issues relating to native land claims in Alaska. See 43 U.S.C. § 1601. I conclude that leaving village townsite lands intact and not withdrawing them under ANCSA section 11(a)(1) served many of Congress’ objectives in enacting ANCSA and benefitted Alaska natives as a whole. Therefore, even though continuing to administer these village townsites enabled some non-natives to settle on village lands and enabled a number of native and non-native individuals to acquire title to village lands after 1971, I cannot conclude that this policy violated the principles and purposes of ANCSA. I cannot accept the contention that merely because the Secretary’s interpretation of section 11(a)(1) enabled non-natives to set-tie on village lands, it therefore conflicted with ANCSA’s purposes. There is nothing in ANCSA’s text or legislative history to indicate that Congress intended to exclude non-natives from lands in the villages or to convert the villages into all-native enclaves. On the contrary, ANCSA contains several provisions specifically designed to protect the rights of non-natives (as well as natives) to remain on lands conveyed by ANC-SA to village corporations. See, e.g., 43 U.S.C. § 1613(c) (protecting rights to primary places of residence or business); 43 U.S.C. § 1613(g) (protecting rights to lands previously leased or acquired under a permit from the federal government). Moreover, Congress specifically announced its intent to protect all valid existing rights in ANCSA, regardless of the individuals to whom they belonged or the location of the lands to which they applied. See Conf.Rep. No. 746, 92d Cong., 1st Sess. 37, reprinted in 1971 U.S.Code Cong. & Ad.News 2192, 2247, 2250 (“All valid existing rights ... are preserved”). Therefore, I cannot agree that because the Secretary’s interpretation of section 11(a)(1) indirectly permitted some non-natives to settle in native villages after 1971, it is inconsistent with the principles of ANCSA. Nor can I agree with the plaintiffs’ contention that the Secretary’s interpretation of section 11(a)(1) violated ANCSA’s principles by permitting parties other than village corporations to appropriate village lands after 1971. In support of this argument, the plaintiffs cite a portion of ANC-SA’s legislative history, which indicates that Congress intended lands to be withdrawn under ANCSA section 11(a)(1) in part “to insure that the land selection rights of Native Villages ... will not be frustrated by ... the creation of new interests in lands under the public lands laws.” Conf.Rep. No. 746, 92d Cong., 1st Sess. 43, reprinted in 1971 U.S.Code Cong. & Ad.News 2247, 2256 (emphasis added); see also Aleknagik Natives Limited v. Andrus, 648 F.2d 496, 503 (9th Cir.1980) (quoting this passage). This argument misses the thrust of the Secretary’s interpretation of section 11(a)(1). According to his interpretation, segregated townsite lands were already “subject to [the] valid existing rights” of municipal corporations on December 18, 1971. The municipalities’ interests in these lands were not “new” or created after the passage of ANCSA. They were like any other valid interests in land that predated ANCSA, and thus, the lands to which they applied were not available for selection by village corporations under sections 11(a)(1) and 12(a)(1). Like other lands that were “subject to valid existing rights” on December 18, 1971, and which were therefore not available for village corporation selection, these townsite lands could be freely conveyed or transferred in ownership after 1971 without violating ANCSA. The legislative history cited by the plaintiffs is thus inapposite. It only asserts that those lands not subject to valid existing rights on December 18, 1971 should all be made available for selection by village corporations. Finally, I cannot accept the plaintiffs’ contention that the Secretary’s interpretation of section 11(a)(1) violated the principles and purposes of ANCSA because it failed to withdraw centrally located, vacant lands in native villages, which Congress intended to convey to the village corporations. According to the plaintiffs, Congress intended to provide these lands to village corporations so that they could preserve the traditional native and subsistence way of life in their villages, as well as engage in economic development. While I agree that Congress regarded village corporations as an important mechanism for promoting native self-determination and economic development in the villages, I cannot agree that Congress regarded these corporations as the only entities capable of preserving the integrity of the villages. Moreover, I cannot agree that the Secretary’s interpretation of section 11(a)(1) has thwarted the operations of village corporations, or that it conflicts with ANCSA’s objectives of protecting natives’ traditional and subsistence way of life. After a careful examination of the Secretary’s and the plaintiffs’ proposed interpretations of section 11(a)(1), I must conclude that the Secretary’s interpretation better serves ANC-SA’s purposes and the needs of Alaska natives. Under the plaintiffs’ proposed interpretation of section 11(a)(1), all vacant, unsubdivided townsite lands would have been withdrawn on December 18, 1971. The surface estate in these lands would then have been conveyed to the local village corporations as part of their total ANCSA entitlements, and the subsurface estate would have been conveyed to the corresponding regional corporations. See 43 U.S.C. §§ 1610(a)(1), 1611(a)(1), 1613(f). No individuals occupying these lands after the passage of ANC-SA would have acquired any rights to them under the townsite laws. Moreover, once they had received their ANCSA entitlement lands, the village corporations would then have been required, under ANCSA section 14(c)(3), 43 U.S.C. § 1613(c)(3), to convey to their corresponding municipal corporations “title to ... the improved land on which the Native village is located and as much additional land [not less than 1,280 acres] as is necessary for community expansion.” 43 U.S.C. § 1613(c)(3). In contrast, under the Secretary’s interpretation, all vacant, unsubdivided townsite lands in the villages would remain in town-site status. Eventually, subdivisional surveys would be approved for these lands, and a substantial portion of them (including both the surface and subsurface estates) would be conveyed to local municipal corporations. Village corporations would initially receive the same quantity of lands as under the plaintiffs’ interpretation (since this amount is prescribed in ANCSA), but there would be two significant distinctions: first, in most cases, they would not need to turn over any of these lands to their municipal corporations under section 14(c)(3), and would therefore end up with a larger quantity of lands, and second, the lands they would receive would be outside the exterior boundaries of their villages’ segregated townsites. Individuals who initiated occupancies of townsite lands between December 18, 1971 and October 21, 1976 and who complied with townsite laws and regulations would eventually receive deeds to the lots they occupied. Natives among this number would be given the option of receiving unrestricted or restricted deeds to their lots. Thus, in 1971-1972, when the Secretary was formulating his interpretation of section 11(a)(1), it was completely reasonable for him to conclude that the interpretation he ultimately adopted would best serve the purposes of ANCSA and the needs of Alaska natives. Under his interpretation, village corporations would almost always end up with a larger quantity of lands than under the plaintiffs’ interpretation, since these corporations would generally not need to turn over any of their ANCSA entitlement lands to their corresponding municipal corporations. In addition, under the Secretary’s interpretation, village municipal corporations, which in most villages would be controlled by natives, would be provided with a substantial quantity of land — eventually amounting to over two-thirds of all townsite parcels conveyed by the townsite trustee between 1971 and 1976 —which they would not receive at all under the plaintiffs’ interpretation. To the extent that these lands being conveyed to municipal corporations would be centrally located or especially significant to the integrity or future of their villages, as the plaintiffs contend they often would be, municipal corporations would probably be better suited to exert and retain control over these lands than village corporations. First, municipal corporations would control both the surface and subsurface estate of these lands, as contrasted to village corporations, which can only acquire the surface estate. See 43 U.S.C. § 1613(f). Second, municipal corporations would probably receive broader tax exemptions for these lands over time than village corporations, and would probably be less concerned about generating profits from them than village corporations, which would often be organized as for-profit corporations. See 43 U.S.C. §§ 1607(a), 1620(cHd). Thus if it were important for a village to leave certain lands undeveloped, either to insulate itself from outside influences or to enable its members to engage in non-commercial or subsistence activities, the village’s municipal corporation would probably have more economic flexibility to maintain the lands in this condition than its village corporation. Moreover, even if lands within the possession of a village’s municipal corporation were needed by its corresponding village corporation for some economic use, there is nothing in ANCSA’s text or legislative history to prohibit the municipality from selling, trading, leasing, or otherwise conveying those lands to the village corporation. As a result, there does not appear to be any disadvantage in terms of ANC-SA’s purposes to providing lands formerly within village townsites to municipal corporations. The legislative history cited by the plaintiffs does not establish otherwise. The plaintiffs cite excerpts of ANCSA’s legislative history which identify “the need to grant each eligible village lands for community expansion and to provide protection and a buffer from the intrusion by others,” and which espouse the belief that “each village should have the opportunity to select land to protect its immediate environment.” S.Rep. No. 925, 91st Cong., 2d Sess. 59 (1970) (discussing S. 1830, a predecessor of ANCSA); Hearings on S. 35, S. 1835 and S. 1571 Before the Senate Committee on Interior and Insular Affairs, 92d Cong., 1st Sess., vol. 2, at 447 (1971) (comments of Secretary Rogers Morton). The plaintiffs also cite a passage from the legislative history expressing the concern that: [W]ithout title to the lands they use and occupy, Alaska Natives are defenseless against commercial development which changes the character of and sometimes depletes subsistence resources, and against the population influx which disorganizes indigenous ways of life. S.Rep. No. 405, 92d Cong., 1st Sess. 72 (1971). None of these passages indicates that Congress’ intent in providing lands to villages would be undermined by the Secretary’s interpretation of section 11(a)(1), which would provide more land to village and municipal corporations than the plaintiffs’ interpretation, and which would provide two entities, instead of one, with the wherewithal to preserve the integrity of the villages. Furthermore, the interpretation of section 11(a)(1) adopted by the Secretary enabled individuals to continue settling on segregated townsite lands, and to eventually acquire title. It would have been reasonable for the Secretary to predict in 1971-1972 that most individuals who would benefit from the continuation of townsite settlement during the next few years would be natives. In fact, between 1971 and 1976, almost two-thirds of those individuals receiving townsite deeds were natives. Moreover, natives receiving town-site deeds during this period could opt for restricted deeds, which would increase the likelihood that they would be able to retain their lands over time and would eliminate any pressure to generate a profit from those lands. Thus, it was reasonable for the Secretary to conclude that leaving townsite lands open to settlement would benefit natives and not violate the principles of ANCSA. Finally, the Secretary could reasonably have believed in 1971-1972 that his interpretation of section 11(a)(1) would reduce the likelihood of litigation over land ownership in the villages, and thereby ensure that village corporations would receive clear title to their ANCSA lands. ANCSA section 2(b), 43 U.S.C. § 1601(b), provides that “the [ANCSA] settlement should be accomplished rapidly, with certainty ... [and] without litigation.” 43 U.S.C. § 1601(b). Had the Secretary simply withdrawn all vacant, unsubdivided townsite lands and conveyed them to village corporations, as the plaintiffs suggest, it is likely that many municipal corporations would have initiated litigation against him, claiming that they had valid existing rights (or trust-related rights) to those lands, and would thereby have tied up lands that had been conveyed to village corporations. The Secretary’s decision to take a cautious approach, especially where there was no overall sacrifice to native interests, in order to avoid this type of scenario seems completely reasonable. For all these reasons, the Secretary’s interpretation of section 11(a)(1) appears to serve the needs of Alaska natives and the purposes of ANCSA better than the plaintiffs’ proposed interpretation. The plaintiffs’ other arguments challenging the Secretary’s interpretation of section 11(a)(1) are also without merit. The plaintiffs contend that the Secretary’s interpretation of the provision has been inconsistent over the years, and therefore is unworthy of deference. Yet after examining the material cited by the plaintiffs, I am unable to agree. The Secretary issued his official interpretation of section ll(a)(l)’s effect upon segregated townsite lands in 1972, reiterated that position in a passing remark contained in a 1977 Decision and Memorandum concerning valid existing rights under ANCSA, and then, as noted above, issued a 1979 Memorandum concerning the effect of FLPMA’s repeal of the townsite laws that reaffirmed his original 1972 interpretation. See Memorandum of June 30, 1972 from Director of BLM to Secretary of the Interi- or; “Valid Existing Rights under the Alaska Native Claims Settlement Act,” Secretarial Order No. 3016, 85 Interior Dec. 1, 6 (1977) (indicating that in ANCSA, “Congress ... intended to protect [the valid existing] rights of municipalities [and] individuals leading to the acquisition of title under such Federal laws as the Townsite Act [and] the Homestead Act”); Allen Memorandum, supra. The plaintiffs have not cited any specific decisions of the Secretary that are in conflict with his 1972 interpretation. Therefore, I must reject their claims of inconsistency. The plaintiffs also suggest that the Secretary’s interpretation of section 11(a)(1) and his whole administration of the town-site program were “malevolent” and involved bad faith. There is nothing in the record to support these claims. Finally, the plaintiffs contend that the Secretary’s interpretation of section 11(a)(1) resulted in continued administration of then-existing townsites, and thus ran afoul of ANCSA section 2(b), 43 U.S.C. § 1601(b), which provides that the ANCSA “settlement should be accomplished rapidly ... without creating a ... lengthy ... trusteeship.” 43 U.S.C. § 1601(b) (emphasis added). I cannot accept this claim. In finding that ANCSA did not discontinue the townsite program where it already existed, the Secretary did not interpret ANCSA to “create” any trusteeship; he simply interpreted ANCSA not to terminate townsite trusts. Moreover, there was no guarantee when the Secretary issued his interpretation of section 11(a)(1) in 1972 that any continued administration of existing town-sites would be “lengthy.” As events transpired, the townsite program continued in full force only for another four years, until 1976. Therefore, I cannot conclude that the Secretary’s interpretation of section 11(a)(1) violated ANCSA’s policy against establishing a “lengthy trusteeship.” For all these reasons, I conclude that the Secretary’s interpretation of section 11(a)(1) was reasonable and comported with the purposes of ANCSA. I therefore reject the plaintiffs’ challenges to his interpretation. The plaintiffs’ remaining claims against the Secretary are also without merit. The plaintiffs claim that the Secretary violated the Administrative Procedure Act (APA), 5 U.S.C. §§ 553(b) and (d), the Freedom of Information Act (FOIA), 5 U.S.C. § 552(a)(1)(D), and ANCSA section 25, 43 U.S.C. § 1624, by failing to publish his interpretation of ANCSA section 11(a)(1) in the Federal Register. However, the Secretary’s analysis of section ll(a)(l)’s effect upon townsite lands was an “interpretative,” rather than a “substantive,” ruling, since it did not “effect a change in existing law or policy,” but instead “ ‘merely clarif[ied] or explain[ed]’____‘what the [Secretary] th[ought] the statute [meant].’ ” Alcaraz, 746 F.2d at 613 (citations omitted); Powderly v. Schweiker, 704 F.2d 1092, 1098 (9th Cir.1983). Therefore, the Secretary was not required under the APA to publish notice of his interpretation in the Federal Register. Alcaraz, 746 F.2d at 613; Powderly, 704 F.2d at 1098; 5 U.S.C. § 553(b)(A). Moreover, since the Secretary’s interpretation of section 11(a)(1) only “clarified” the meaning of that provision and did not itself change the substantive rights of natives or village corporations under ANC-SA, the Secretary was also not required under the FOIA to publish his interpretation in the Federal Register. Powderly, 704 F.2d at 1098; 5 U.S.C. § 552(a)(1)(D). Furthermore, even if the Secretary had been required under the FOIA to publish his interpretation, the record indicates that the plaintiffs had “actual and timely notice” of his interpretation, and were not prejudiced by his failure to publish it. Thus, the plaintiffs do not have a basis for a viable FOIA claim under any circumstances. See 5 U.S.C. § 552(a)(1); Zaharakis v. Heckler, 744 F.2d 711, 714 (9th Cir.1984). Finally, ANCSA section 25 does not require the Secretary to publish regulations or interpretations relating to ANC-SA’s provisions, as the plaintiffs appear to suggest. It merely “authorizes” him to publish such information. See 43 U.S.C. § 1624. Thus, all the plaintiffs’ claims based upon the Secretary’s failure to publish his interpretation of section 11(a)(1) must fail. The plaintiffs also contend that the Secretary violated ANCSA section 2(b), 43 U.S.C. § 1601(b), requiring “maximum participation by Natives in decisions affecting their rights and property,” by issuing his interpretation of section 11(a)(1) without first consulting various native groups. However, the plaintiffs have failed to cite any authority to indicate that section 2(b) provides them with any additional substantive or procedural rights beyond those already enumerated in the APA, the FOIA, and ANCSA’s other provisions. See Koniag, Inc., Village of Uyak v. Andrus, 580 F.2d 601, 610 (D.C.Cir.1978). Thus, the plaintiffs’ ANCSA section 2(b) claim must also fail. Finally, the plaintiffs contend that even if the secretary’s interpretation of section 11(a)(1) was correct and ANCSA did not withdraw unsubdivided townsite lands for selection by village corporations, the Secretary and townsite trustee nevertheless violated ANTA section 3 by failing to administer those townsite lands exclusively for natives. This court previously rejected this precise claim in its 1976 decision in City of Klawock v. Gustafson, No. K 74-2, at 9, 14 (D. Alaska, unpublished oral opinion of November 12, 1976). In that action, this court ruled, based primarily upon the text and legislative history of ANTA, that ANTA had been “enacted [in 1926] to supplement the 1891 [Alaska Townsite] Act and thereby [to] extend its benefits [for the first time] to non-citizen Alaska Natives”; Thus, ANTA’s provisions relating to town-sites in native villages were “not intended to foreclose non-Natives from occupying land in Native townsites and applying for trustee deeds,” since non-natives’ rights to settle in townsites were already protected by existing townsite laws. Id. at 14, 17. After reviewing the City of Klawock decision, I continue to believe that its analysis of ANTA is correct, and I hereby incorporate its analysis by reference in this decision. I therefore reject the plaintiffs’ claim based on ANTA section 3. 3. Challenges to the Secretary’s Interpretation of FLPMA The Secretary’s position, as enunciated in the Regional Solicitor’s February 20, 1979 memorandum, is that after FLPMA’s repeal of the townsite laws in 1976, no new rights could arise under the townsite laws, and therefore, no valid new occupancies could be initiated in existing townsites. His position is challenged by the intervenors and by the non-federal defendants other than Basil Atkinson, all of whom began occupying their townsite lots after 1976. Becau