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D. Denardo v. State of Alaska (12/23/94), 887 P 2d 947
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Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501.
THE SUPREME COURT OF THE STATE OF ALASKA
DANIEL DENARDO, )
) Supreme Court No. S-5850
Appellant, )
) Superior Court No.
v. ) 3AN-90-6387 Civil
)
STATE OF ALASKA, ) O P I N I O N
)
Appellee. )
______________________________) [No. 4156 - December 23, 1994]
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Anchorage,
Mark C. Rowland,
Judge.
Appearances: Daniel DeNardo, pro se,
Anchorage. Nancy J. Nolan, Assistant
Attorney General, Anchorage, Bruce M.
Botelho, Attorney General, Juneau, for
Appellee.
Before: Moore, Chief Justice,
Rabinowitz, Matthews, Compton and Eastaugh,
Justices.
MATTHEWS, Justice.
Daniel DeNardo claims interests in five islands which
lie north of Siberia in the Arctic Ocean: Wrangel, Herald,
Henrietta, Bennett and Jeannette. When he attempted to record
these interests in the Nome recording district, the recorder
refused to accept DeNardo's documents, taking the position that
the islands are not within the Nome recording district.
DeNardo sued, seeking equitable relief and damages. He
alleged that "[t]he State of Alaska being responsible for the
designation of the recording district must designate a place of
recordation for plaintiff's property rights as it has recorded
other's [sic] property rights in the state of Alaska."
The State moved to dismiss, claiming that it lacks
authority to designate recording districts for the Arctic
Islands. The State's motion was granted. DeNardo appeals. We
affirm.
The Arctic Islands are not located within the Nome
recording district or any of the State's other thirty-three
recording districts. Under AS 40.17.020(a), DeNardo's documents
may not be recorded in any recording district in Alaska.1
Moreover, the State has no duty to create a recording district
for the Arctic Islands, as it is not governing them. The
question of sovereignty over the Arctic Islands is a subject
committed to the executive and legislative branches of the United
States government. See United States v. Louisiana, 363 U.S. 1,
35 (1960). Until and unless the United States government
indicates that the Arctic Islands are part of the State of
Alaska, the State has no duty to accept for recording documents
affecting title to real property on the islands.2
DeNardo claims that his constitutional right to equal
protection of the law has been violated. The State discriminated
against him since in the past the Nome recorder has accepted
documents of title concerning the Arctic Islands. This claim
lacks merit. In accepting for recording documents concerning the
islands, the State committed an administrative error. Neither
the state nor federal constitutions require that this practice
continue. See State v. Reefer King Co., Inc., 559 P.2d 56, 65
(Alaska 1976) (stating that "an individual who claims that
selective enforcement has deprived him or her of equal protection
under the state constitution must show 'a deliberate and
intentional plan to discriminate,' based upon some unjustifiable
or arbitrary classification").
DeNardo claims that he was a public interest litigant;
therefore, the award of $1200 in attorney's fees against him
should be reversed. DeNardo is not a public interest litigant as
he is seeking to further his own alleged interest in the Arctic
Islands. He is motivated principally by private rather than
public concerns. See Anchorage Daily News v. Anchorage School
District, 803 P.2d 402, 404 (Alaska 1990) (articulating public
interest litigant criteria).
AFFIRMED.
BE IT RESOLVED BY THE LEGISLATURE OF THE
STATE OF ALASKA:
WHEREAS Alaskans and other
Americans remain justifiably grateful for the
fortitude shown by Captain Thomas Long and
the crew of the whaling bark "NILE"from New
London, Connecticut who, on August 14, 1867,
were the first to confirm the existence of a
1,740 square mile island in the Chukchi Sea;
and
WHEREAS Wrangel Island, named by
Captain Long after the former governor of
Russian Alaska Baron Ferdinand Petrovich von
Wrangel, is located some 270 miles northwest
of Cape Lisburne, Alaska and is larger than
the State of Rhode Island; and
WHEREAS Captain Long was the first
to sight and to describe Wrangel Island, and
the first recorded landing on the island
occurred August 12, 1881, when Captain Calvin
L. Hooper, commander of the Bering Sea
Patrol, a division of the U.S. Treasury
Department and as such, the de facto governor
of Alaska, landed at Clark River on the
eastern coast of Wrangel Island and, with his
fellow officers and John Muir (who later
founded the Sierra Club) raised the American
flag and took possession of the island in the
name of the United States; and
WHEREAS Captain Hooper was engaged
in a Congressionally sponsored effort to
rescue the "JEANNETTE,"a vessel engaged in
Arctic research that was locked in ice floes
and subsequently lost and therefore Captain
Hooper had the authority to claim Wrangel
Island for the United States; and
WHEREAS Wrangel Island became a
part of the United States by right of
confirmed discovery and first possession and,
later, a permanent settlement; and
WHEREAS Wrangel Island and its
nearby satellite island Herald Island were
placed by the United States Coast and
Geodetic Service within the District and
later Territory and State of Alaska in
publications from 1900 through 1977; and
WHEREAS the De Long Islands of
Henrietta, Jeannette, and Bennett were first
discovered in the East Siberian Sea and were
claimed and named by U.S. Navy Commander
George W. De Long during his 1879 - 1881
expedition into the Arctic where the
commander and his crew died when their ship,
the "JEANNETTE,"was crushed and sunk by ice
floes; and
WHEREAS the first permanent
settlement on Wrangel Island occurred when
the American ship "SILVER WAVE" landed a
party on the island on September 15, 1921,
and raised the American flag over the island
under the direction of Captain Jack Hammer;
and
WHEREAS the party from the "SILVER
WAVE" landed with provisions for only six
months as they stated that they planned to
sustain themselves by hunting; and
WHEREAS the relief vessel in 1922
was blocked by ice floes; and
WHEREAS when the relief vessel
"DONALDSON"arrived on August 23, 1923, the
only survivor of the 1921 expedition was an
Eskimo seamstress named Ada "Blackjack"
Johnson, who died just a few years ago in
Alaska; and
WHEREAS a new party led by Charles
Wells of Uniontown, Pennsylvania continued
settlement on Wrangel Island; and
WHEREAS on May 13, 1924, Secretary
of State Charles Evans Hughes stated that the
American Lomen Brothers were the proprietary
owners of Wrangel Island; and
WHEREAS on August 20, 1924, an
armed party from the Soviet gunboat "RED
OCTOBER"landed on Wrangel Island, took Wells
and the other Americans by force, and told
them they were being returned to Alaska; and
WHEREAS notwithstanding their
promises, they took the Americans to
Vladivostok and confiscated the pelts that
the American trappers had accumulated during
the 12 bitter months on the island; and
WHEREAS the Americans who survived
their ordeal in Vladivostok were released
following the intervention of the American
consul at Harbin, Manchuria but Charles Wells
and two residents of Alaska died while
detained by the Soviet government; and
WHEREAS the residents of Alaska who
survived their ordeal in Soviet Siberia were
all from Golovin Bay, Alaska and they
survived notwithstanding the severe physical
and emotional trauma resulting from the
assault, kidnapping, false imprisonment,
theft of property together with other
violations of American and Alaska law by the
agents of the Soviet regime; and
WHEREAS after seizing Wrangel
Island, the Soviet government proceeded to
seize more American soil by occupying the
nearby and defenseless Herald Island; and
WHEREAS the Soviet government subse
quently asserted a spurious claim to the
American De Long Islands of Henrietta,
Jeannette, and Bennett; and
WHEREAS these illegal acts by the
Soviet government interrupted 57 years of
peaceful use of these islands by American
seamen, herders, and hunters; and
WHEREAS the Soviet occupation of
what they refer to as Ostrova De Long is an
affront to all Americans, is an insult to the
memory of their brave discoverer, and a
source of embarrassment to the United States
Navy, which memorializes his memory at the
Naval Academy in Annapolis; and
WHEREAS the soil of all five of
these American islands and their surrounding
continental shelf has been held by military
force in contravention of international law
and by conduct that is contrary to what is
recognized as proper by civilized nations;
and
WHEREAS the Soviet government has
typified its uncivilized conduct by
establishing forced labor camps on Wrangel
Island as reported in testimony before the
U.S. Senate Judiciary Committee in January
1973; and
WHEREAS it has been reported that
Wrangel Island was the last known place of
imprisonment of Raoul Wallenberg, the Swedish
Consul in Budapest, Hungary at the end of
World War II who was arrested by Soviet
forces and who was responsible for saving the
lives of thousands of European Jews from the
Nazi Holocaust; and
WHEREAS this conduct on American
soil has continued in defiance of American
law as well as in defiance of the
international rules of conduct resulting from
the Nuremberg war crime trials after World
War II; and
WHEREAS the continuing trespass by
the Soviet government deprives the State of
Alaska and its people of their fundamental
right to use the islands of Wrangel, Herald,
Henrietta, Jeannette, and Bennett together
with the surrounding continental shelf and
its valuable resources; and
WHEREAS unlike the governments of
Canada and Great Britain, the United States
has never surrendered its claims of
sovereignty over these islands; and
WHEREAS the State of Alaska does
not believe that agreements between the
United States and the Soviet Union, whether
they be secret or otherwise, can affect
American claims to these islands until they
have been ratified by the United States
Senate;
BE IT RESOLVED by the Alaska State
Legislature that the Government of the United
States assert and reassert American sovereign
ty over Wrangel Island, Herald Island, and
the De Long Islands of Henrietta, Jeannette,
and Bennett, their resources, and their
territorial shelf in behalf of the American
people; and be it
FURTHER RESOLVED that the
Government of the United States make
satisfactory compensation and restitution to
the State of Alaska and its people for the
loss of this territory resulting from the
neglect of the United States Government to
protect American lives and property when the
lands were seized in 1924; and be it
FURTHER RESOLVED that the State of
Alaska asserts and reasserts its claim to
Wrangel Island, Herald Island, and the De
Long Islands of Henrietta, Jeannette, and
Bennett and their surrounding continental
shelf as an integral part of the State of
Alaska; and be it
FURTHER RESOLVED the Governor of
the State of Alaska is requested to initiate
appropriate legal claims for relief before
the U.S. Foreign Claims Settlement
Commission, the U.S. Court of Claims or other
legal forums of the United States as may be
appropriate.
COPIES of this resolution shall be
sent to the Honorable Ronald Reagan,
President of the United States; to the
Honorable George P. Shultz, Secretary of
State; to the Honorable George Bush, Vice-
President of the United States and President
of the U.S. Senate; the Honorable Jim Wright,
Speaker of the U.S. House of Representatives;
and to the Honorable Ted Stevens and the
Honorable Frank Murkowski, U.S. Senators, and
the Honorable Don Young, U.S. Representative,
members of the Alaska delegation in Congress.
Introduced: 2/4/88.
_______________________________
1 AS 40.17.020(a) states that "[a] conveyance that is
eligible for recording . . . may be recorded only in the records
of the recording district in which land affected by the
conveyance is located."
2 The historical basis for the United States' claim to
the Arctic Islands is set forth in Senate Joint Resolution No. 61
of the Second Session of the Fifteenth Alaska Legislature and
appended hereto.
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