Topic: Government

May 30, 1996

This case is before the court after argument on cross-motions for summary judgment. The first question presented is whether plaintiff’s cause of action accrued, for purposes of the statute of limitations, before February 24, 1986 (six years prior to filing its claims). 28 U.S.C. § 2501 (1994). Subsumed within this issue is when and whether Pub. L. No. 94-204, 89 Stat. 1145 (1976), and Pub. L. No. 94-456, 89 Stat. 1934 (1976), can constitute a taking of plaintiff’s vested property rights. These laws modified the Alaska Native Claims Settlement Act as to the pool of lands available from which the Native corporations could select their entitlement. The third question is whether the Court of Federal Claims has jurisdiction to hear breach of fiduciary duty claims and, if so, whether the enactment of Public Law Nos. 94-204 and 94-456 constituted breaches of the Government’s fiduciary duty to plaintiff. 

FACTS

The following facts are undisputed, unless otherwise noted. Seldovia Native Association, Inc.’s (“plaintiff’s”), claims arise out of a series of complicated actions in the mid-1970s aimed at clarifying and resolving aboriginal land claims in Alaska. In 1971 Congress enacted the Alaska Native Claims Settlement Act, 43 U.S.C. §§ 1601-1629e (1994) (the “ANCSA”). Unresolved native claims had clouded Alaska’s authority to lease lands and transfer rights regarding petroleum resources and had hindered development of the Alaskan Pipeline. Congress intended the ANCSA to provide a “fair and just settlement of all claims . . . rapidly, with certainty, [and] in conformity with the real economic and social needs of Natives.” 43 U.S.C. § 1601(a), (b). While the ANCSA did not explicitly acknowledge the existence of prior aboriginal rights, it did expressly extinguish “all aboriginal titles, if any, and claims of aboriginal title in Alaska based on use and occupancy.” 43 U.S.C. § 1603(b). Furthermore, because “all prior conveyances of public land . . . pursuant to Federal law, and all tentative approvals pursuant to section 6(g) of the Alaska Statehood Act,” 72 Stat. 339 (1958), were to extinguish all claims of aboriginal title, the ANCSA envisioned that land owners or users, as well as potential developers, would be free to build property without the uncertainty that potential aboriginal claims created. 43 U.S.C. § 1603(a).

Under the ANCSA land was to be set aside for Native peoples through a complex process. The Native residents of each Native village entitled to receive lands were required to organize as business corporations known as “Village Corporations.” 43 U.S.C. § 1607(a). These villages were grouped into twelve regions “based upon common heritage and . . . common interests.” 43 U.S.C. § 1606(a). Each of the twelve regions formed a “Regional Corporation.” 43 U.S.C. § 1606(d). Eligible Natives received corporate stock in both the Village Corporation, 43 U.S.C. § 1607(c), and the Regional Corporation, 43 U.S.C. § 1606(g), to which they belonged.

Federal public land immediately was set aside for selection by Native peoples in a process known as “withdrawal.” Under withdrawal, federal public lands were recalled from all forms of appropriation under the public land laws, so that Native peoples could select lands of their choosing based upon their statutory entitlement under the ANCSA. These withdrawn public lands fell into three categories. First were townships[1] that enclosed, partially enclosed, were contiguous, or cornered an existing Native village (“first ring townships”). 43 U.S.C. § 1610(a)(1)(A), (B). Next were federal public lands that were contiguous to, bordered, or cornered the first ring townships (“second ring townships”). 43 U.S.C. § 1610(a)(1)(C). Finally, if the Secretary of the Interior (the “Secretary”) determined that the first and second ring townships were insufficient to permit a Village or Regional Corporation to select the acreage to which it was entitled under the ANCSA,[2] the Secretary was to withdraw three times the deficiency of selected lands (a “deficiency withdrawal”) from the nearest available federal public lands (“deficiency withdrawal lands”). 43 U.S.C. § 1610(a)(3)(A).

Under the ANCSA land was to be distributed to the Village Corporations in the following manner: First, the Village Corporation was to select withdrawn federal public lands from “all of the township or townships in which any part of the village is located, plus an area that will make the total selection equal to the acreage to which the village [was] entitled.” 43 U.S.C. § 1611(a). These lands are known as “12(a)” lands.[3] In the event that the Village Corporation was not able to select enough acreage in the first or second ring townships to meet its 12(a) entitlement, the Secretary was to make a deficiency withdrawal, pursuant to 43 U.S.C. § 1610(a)(3)(A), to garner additional lands from which the Village Corporation might make a selection. 

Subsequently, after the Village Corporations made these 12(a) selections, “the difference between the [22] million acres and the total acreage selected by Village Corporations” was to be allocated by the Secretary among the Regional Corporations based upon the population enrolled in each Regional Corporation.[4] 43 U.S.C. § 1611(b). “Each Regional Corporation [was to] reallocate such acreage among the Native villages within the region on an equitable basis after considering historic use, subsistence needs, and population.” 43 U.S.C. § 1611(b). These allocations to Regional Corporations are known as “12(b)” lands. Thus, the Village Corporations would receive lands by both direct selection — 12(a) lands — and by grants from the Regional Corporations — 12(b) lands.

In addition to the lands allocated to the Village Corporations, the ANCSA contained provisions allowing Regional Corporations also to receive land. These are known as “12(c) lands.” As mandated by 43 U.S.C. § 1611(c), 16 million additional acres of land, apart from the 22 million acres of 12(a) and 12(b) lands withdrawn for Village Corporations, were to be allocated to the Regional Corporations.

Plaintiff is among the 200 villages listed in the ANCSA as eligible to select land. 43 U.S.C. § 1610(b)(1). Plaintiff was assigned to the Cook Inlet Region, of which Cook Inlet Region, Inc. (“CIRI”), is the Regional Corporation. Id. Plaintiff’s village is located on the eastern shore of Cook Inlet, and, as such, much of its first and second rings of townships are located under water. Combined with the proximity of other Native villages, this factor made the original land withdrawn by the Secretary for plaintiff’s 12(a) selections insufficient.[5] Consequently, the Secretary withdrew additional “deficiency lands” in 1974 pursuant to 43 U.S.C. § 1610(a)(3)(A). These lands were to be as proximate to plaintiff’s village as possible, and of the same character as the lands in which plaintiff’s village was located. Id.

Deficiency withdrawals were available jointly for plaintiff and the villages of Ninilchik, Salamatoff, Knik, Tyonek, Chickaloon, and Alexander Creek. Plaintiff contends that this joint withdrawal was contrary to the intent of the ANCSA and that the Secretary should have made individualized deficiency withdrawals for each Village Corporation in the region. Multiple village withdrawals occurred in most ANCSA regions, according to defendant. As a result of the joint withdrawals, conflicts developed among Village Corporations that sought to select the same lands from the deficiency withdrawal. CIRI filed suit against the Department of Interior (“Interior”) in the District Court for the District of Alaska alleging that the deficiency withdrawals were insufficient; plaintiff and other Village Corporations intervened. Cook Inlet Region, Inc. v. Morton, No. A40-73 CV (D. Alaska 1973), appeal dismissed sub nom. Cook Inlet Region, Inc. v. Kleppe, No. 75-2232 (9th Cir. Mar. 20, 1978).

While the suit was pending in Alaska District Court, CIRI met with the Village Corporations in 1974 to resolve the conflicts. It was decided in a “Village 12(a) Prioritization Agreement” that the Village Corporations would select their 12(a) lands in a series of rounds. In this manner the selections of lands most prized by one village would subordinate lower priority selections of the same land by other villages. The affected villages filed their 12(a) selections in accordance with this agreement. Plaintiff’s selections were filed timely on December 18, 1974, and included first ring townships, second ring townships, and deficiency withdrawals. Plaintiff maintains that its timely filing of 12(a) selections created equitable and vested property rights protected by the Takings Clause of the Fifth Amendment. See U.S. Const. amend. V.

The Village Corporations and CIRI then began the process of selecting the 12(b) lands, which, under the ANCSA, had to be selected by December 18, 1975. 43 U.S.C. § 1611(c)(3). This selection process was hindered by the fact that Interior now wanted to turn a large portion of the land in CIRI’s region into a national park. This land — around Lake Clark — was desired by several Village Corporations (including plaintiff) for their 12(b) selections. CIRI began discussing a possible land swap with the state and Interior to exchange land around Lake Clark for other lands. CIRI also approached plaintiff and other Village Corporations about relinquishing their selections in the Lake Clark area in exchange for other selections. Plaintiff did not express an interest at that time in relinquishing its intended 12(b) selections in the Lake Clark area. Nonetheless, CIRI, Alaska, and Interior finalized an unexecuted land exchange agreement entitled “Terms and Conditions for Land Consolidation and Management in the Cook Inlet Area” (the “T&C”) on December 10, 1975, shortly before the 12(b) selections had to be made, which was adopted by Congress. Under the T&C Alaska would receive from Interior two and one-half times as much land as it was relinquishing, some of which was subject only to valid village 12(a) selections, and some of which was available for 12(b) selections.[6] See Pub. L. No. 94-204 § 12(b), 89 Stat. 1145, 1151 (1976).

On December 15, 1975, plaintiff filed its 12(b) selections, both individually and in “blanket” form with other Village Corporations in the region. However, these selections did not follow the new T&C guidelines and included lands in the Lake Clark area and other lands specifically listed in the T&C as only available for 12(a) selections. In early January 1976, Congress incorporated the requirements and conditions set forth in the T&C and ratified them as Pub. L. No. 94-204, 89 Stat. 1145 (1976), 43 U.S.C. § 1611 note (1994).[7] However, for the Public Law to take effect, two conditions were mandated. First, the Village Corporations (including plaintiff) were required to withdraw any 12(b) selections in the Lake Clark area; second, CIRI and the intervenor Village Corporations (including plaintiff) were required to withdraw with prejudice their appeal, Cook Inlet Region, No. 75-2232; see Pub. L. No. 94-204, § 12(a)(2), (3), 89 Stat. 1145, 1151 (1976), 43 U.S.C. § 1611 note (1994).[8]

On May 18, 1976 — almost two years after the deadline had passed for filing 12(a) selections [9] — Interior’s Bureau of Land Management (the “BLM”)[10] rejected a number of plaintiff’s timely-filed 12(a) selections. This rejection was problematic because the ANCSA does not provide a method to reselect 12(a) lands if the original selection is invalidated after the deadline for filing has passed (as happened here).[11] The rejected selections were those made from the deficiency withdrawal and were rejected on the grounds that some were not available for 12(a) selection and they were not compact and contiguous. Under the ANCSA land selections “wherever feasible” must be in units of not less than 1,280 acres and “shall be contiguous and in reasonably compact tracts.” 43 U.S.C. § 1611(a)(2). Discretion was conferred on the Secretary to find exceptions to these requirements provided certain conditions were met.[12] 43 U.S.C. § 1611(a)(2).

Plaintiff maintains that the BLM specifically had approved the selection method used to resolve the various Village Corporations’ conflicting 12(a) land claims, knowing that the method would result in tracts of less than 1,280 acres in size. Plaintiff states that it relied on the BLM’s approval of this method when it participated in the priority selection process and subsequently filed its 12(a) selections. However, defendant denies that the BLM approved any selection method knowing that it would result in the selection of parcels smaller than 1,280 acres. Furthermore, defendant asserts that “no official at the Department of the Interior had authority to approve selections not in accord with the . . . [ANCSA] and no BLM employee had authority to speak for the Secretary of the Interior in approving any method of selection in advance.” Ans. filed Dec. 30, 1994, P 16.

Plaintiff appealed the BLM’s 1976 12(a) decision to Interior’s Board of Land Appeals (the “IBLA”). However, before the IBLA had a chance to consider the appeal, plaintiff contends that the BLM requested (with plaintiff’s consent) that the matter be remanded for reconsideration. Defendant contends that CIRI and the Village Corporations requested the dismissal so that a legislative solution could be reached.

CIRI did attempt to resolve the 12(a) problems legislatively by working out two agreements in August 1976 that were then adopted and ratified on October 4, 1976. Pub. L. No. 94-456, 90 Stat. 1934 (1976), 43 U.S.C. § 1611 note (1994). The first agreement, entered into on August 28, 1976, involved the Village Corporations (including plaintiff) and is known as the “Village 12(a) Agreement.”[13] The Village 12(a) Agreement was incorporated into the second agreement, which was CIRI’s agreement with Interior on August 31, 1976, and only known as the “CIRI/Interior Deficiency Agreement.” These agreements bound the parties to support legislation which would resolve the 12(a) problems by allowing Interior to convey land to CIRI, which, in turn, would reconvey the lands to the Village Corporations.

Plaintiff states that it only entered the Village 12(a) Agreement because CIRI represented that the agreement was necessary to obtain plaintiff’s 12(a) selections. Plaintiff insists that the Village 12(a) Agreement did not affect its right to select 12(a) lands located outside the specific areas conveyed to CIRI under the Village 12(a) Agreement. However, defendant maintains that the effect of the two agreements was to limit the lands that Village Corporations could select to those lands listed in Appendix A of the CIRI/Interior Deficiency Agreement (or, if those lands were insufficient, to lands in Appendix C, to be withdrawn only insofar as needed to meet the villages’ statutory allotments).

After crafting a solution for the 12(a) selections, CIRI attempted to resolve the 12(b) selections. In early 1978 CIRI requested plaintiff to relinquish its 12(b) selections in the Lake Clark area — pursuant to the Withdrawal, Relinquishment, and Waiver of Selections Agreement — as was necessary under Pub. L. No. 94-204, so that CIRI would receive land in return from Interior. See T&C App. C. P I, adopted by Pub. L. No. 94-204 § 12(b). On March 20, 1978, plaintiff, CIRI and the other Village Corporations withdrew their appeal with prejudice. See Cook Inlet Region, No. 75-2232. The consequence of these two actions was to cause Public Law No. 94-204 to go into full effect. Plaintiff claims that it did not understand that its actions (relinquishment of land in the Lake Clark area and withdrawal of its lawsuit) would have this effect. Plaintiff further asserts that it never intended for Public Law No. 94-204, or the underlying T&C, to go into operation, because plaintiff objected to this modification and elimination of its original rights under the ANCSA.[14]

In July 1981 the BLM rejected some of plaintiff’s 12(b) selections because they were lands conveyed to CIRI, not the Village Corporations, under the T&C. Plaintiff unsuccessfully appealed this decision to the Alaska Native Claims Appeals Board. Seldovia Native Ass’n, Inc., 89 I.D. 74 (1982). In April 1987 the BLM rejected more of plaintiff’s 12(b) selections because those lands were listed in Appendix E of the T&C and were available only to Village Corporations as 12(a) selections. Plaintiff appealed, but the IBLA upheld the BLM’s 1987 12(b) decision. Seldovia Native Ass’n, Inc., 113 IBLA 218 (1990). Plaintiff proffers that in November 1990 the BLM rejected additional 12(a) selections, explaining that the land requested by plaintiff had not yet been conveyed to CIRI and would not be conveyed to CIRI until CIRI had reconveyed to the Village Corporations all the land already allotted to it.

Finally, in March 1991 plaintiff filed suit in the United States District Court for the District of Alaska against CIRI, Alaska, and Interior. Seldovia Native Ass’n, Inc. v. United States, No. A91-076 (D. Alaska Mar. 11, 1991). Before resolution of the district action, plaintiff filed a complaint in the United States Court of Federal Claims on February 24, 1992. In November 1994 the district court granted defendant’s motion for summary judgment in part except for plaintiff’s takings claims, which were dismissed without prejudice to allow filing in this court. Seldovia Native Ass’n, Inc. v. United States, A91-070 CV (D. Alaska Nov. 2, 1994). Due to the prior filing of the district court action, this court granted defendant’s motion to dismiss based on the then-prevailing interpretation of 28 U.S.C. § 1500 (1988). Seldovia Native Ass’n, Inc. v. United States, No. 92-130L (Fed. Cl. Sept. 30, 1992) (unpubl.). Plaintiff filed a notice of appeal on November 20, 1992. However, on November 16, 1994, the Federal Circuit granted defendant’s unopposed request to remand the case to this court in light of Loveladies Harbor, Inc. v. United States, 27 F.3d 1545 (Fed. Cir. 1994). See Seldovia Native Ass’n, Inc. v. United States, 42 F.3d 1409 (Fed. Cir. 1994) (Table).

While the matter was in litigation, defendant continued to act on plaintiff’s various remaining 12(a) and 12(b) selections. In August 1992 the BLM rejected a few more 12(b) selections, but this decision was set aside by the IBLA after the BLM indicated that it wished to amend and clarify its decision. In December 1994 the BLM rejected plaintiff’s remaining 12(a) selections. As of August 1995, plaintiff asserts that the BLM had yet to act upon the 12(b) selections remanded to it by the IBLA in 1992.

Defendant filed a motion to dismiss, or for summary judgment, on the ground that plaintiff’s claims are barred by the statute of limitations. If the claims are ruled to be timely, defendant moved for judgment in its favor on the grounds that plaintiff has no vested property interest in its land selections, that no taking occurred under the Fifth Amendment, and that the court lacks jurisdiction to hear claims based on breach of fiduciary obligations. Plaintiff sought for partial summary judgment on the ground that its land selections are legally cognizable property interests protected by the Fifth Amendment and that Interior’s actions denying plaintiff’s land selections effected a taking and breached Interior’s fiduciary duties.

DISCUSSION

I. Takings claims

1. Jurisdictional standard

The statute of limitations is jurisdictional in the Court of Federal Claims. Henke v. United States, 60 F.3d 795, 798 (Fed. Cir. 1995); Hart v. United States, 910 F.2d 815, 817-18 (Fed. Cir. 1990); Soriano v. United States, 352 U.S. 270, 273, 1 L. Ed. 2d 306, 77 S. Ct. 269 (1957). Absent a contrary statutory provision, “every claim of which the United States Court of Federal Claims has jurisdiction shall be barred unless the petition thereon is filed within six years after such claim first accrues.” 28 U.S.C. § 2501 (1994). In United States v. Kubrick, 444 U.S. 111, 62 L. Ed. 2d 259, 100 S. Ct. 352 (1979), the Supreme Court noted that statutes of limitations “represent a pervasive legislative judgment that it is unjust to fail to put the adversary on notice to defend within a specified period of time and that ‘the right to be free of stale claims in time comes to prevail over the right to prosecute them.'” Id. at 117 (quoting Order of RR. Telegraphers v. Railway Express Agency, 321 U.S. 342, 349, 88 L. Ed. 788, 64 S. Ct. 582 (1944)). Once the Government has met its burden of proof as to the statute of limitations defense, a plaintiff has the burden of proving an exception. See Duvall v. United States, 227 Ct. Cl. 642, 652 F.2d 70 (1981).

2. Summary judgment standard

A motion for summary judgment should be granted when, as to a particular issue, no genuine issues of material fact are in dispute and the moving party is entitled to judgment as a matter of law. RCFC 56(c). Defendant’s motion properly can intercede and prevent trial if the motion demonstrates that trial would be useless because additional evidence, beyond that available in connection with its motion, could not reasonably be expected to change the result. See Pure Gold, Inc. v. Syntex (U.S.A.), Inc., 739 F.2d 624, 626 (Fed. Cir. 1984). “Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed ‘to secure the just, speedy and inexpensive determination of every action.'” Celotex Corp. v. Catrett, 477 U.S. 317, 327, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986) (quoting Fed. R. Civ. P. 1).

Rule 56 must be construed with due regard not only for the rights of persons asserting claims and defenses that are adequately based in fact to have those claims and defenses tried to a jury, but also for the rights of persons opposing such claims and defenses to demonstrate in the manner provided by the Rule, prior to trial, that the claims and defenses have no factual basis.

Celotex, 477 U.S. at 327; see also Universal Life Church, Inc. v. United States, 13 Cl. Ct. 567, 580 (1987) (citing cases), aff’d, 862 F.2d 321 (Fed. Cir. 1988) (Table). In considering cross motions for summary judgment, the court is not permitted to weigh evidence. “Summary judgment in favor of either party is not proper if disputes remain as to material facts. Rather, the court must evaluate each party’s motion on its own merits, taking care in each instance to draw all reasonable inferences against the party whose motion is under consideration.” Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1391 (Fed. Cir. 1987) (citations omitted).

3. Statute of limitations

Ironically, the litigation before the court stems from legislation enacted over 25 years ago with the intent of accomplishing a “settlement of all claims . . . rapidly, with certainty . . . [and] without litigation.” 43 U.S.C. § 1601(a), (b). Despite the fact that the parties have failed to resolve their claims either “rapidly” or “without litigation,” the court will do its utmost to ensure that the claims before it are settled “with certainty.” 

A complicated series of statutes and issues clouds the jurisdictional question presented by this case. As the Federal Circuit recently noted, “when resolution of the contested jurisdiction will entail expenditure of significant judicial resources to no avail, it is not inappropriate for an appellate court to simply assume that the losing party would succeed in establishing the contested jurisdiction, and to terminate the litigation on the merits.” Decker & Co. v. West, 76 F.3d 1573, 1584 (1996). This reasoning is even more apropos at the trial court level. In the case at hand, plaintiff alleges several takings claims to which defendant presents the jurisdictional defenses of the bar of the statute of limitations and lack of subject matter that the Court of Federal Claims can adjudicate. Although the court does not follow the Decker approach, in order to address the statute of limitations issue the court must first address the issue of the nature of plaintiff’s purported property interests in order to determine when plaintiff’s cause of action accrued for statute of limitations purposes.

1) Nature of plaintiff’s property interests

Plaintiff has alleged a series of constitutional takings claims. Plaintiff claims relief for the modification and diminishment of plaintiff’s 12(b) rights under the CIRI/Interior Deficiency Agreements and the enactment of Public Law Nos. 94-204 and 94-456, arguing that they constitute a taking of plaintiff’s property by the Government. Plaintiff also claims a taking for the conveyance by the Government to CIRI of lands that plaintiff had selected. Finally, plaintiff’s complaint alleges that Public Law Nos. 94-204 and 94-456 diminished its rights under the ANCSA to a full survey of the lands conveyed to plaintiff so as to constitute a taking.

The parties debate whether or not plaintiff possessed vested property rights under the ANCSA. This debate misses the point. Plaintiff did have vested rights under the ANCSA — the right to a certain number of acres. Section 1611 states that the Village Corporations

shall select, in accordance with rules established by the Secretary, all of the township or townships in which any part of the village is located, plus an area that will make the total selection equal to the acreage to which the village is entitled under section 1613 of this title. The selection shall be made from lands withdrawn by section 1610(a) of this title . . . .

43 U.S.C. § 1611. Referring to section 1613, the Village Corporations were allotted a number of acres — not particular lands — depending on the size of their native populations. The statute’s provision sets forth the nature of plaintiff’s vested property right: “The Secretary shall issue to the Village Corporation a patent to the surface estate in the number of acres shown in the following table.” Id. at § 1613(a). The table reflects that plaintiff was entitled to 115,200 acres; however, it does not establish a right to any particular acre.

Section 1610(a) sets forth the complicated system by which a Village Corporation’s acreage allotment is filled. Not surprisingly, the villages were required to “select” the lands on which they were actually situated as the first step of their entitlement under the ANCSA. The selections were to start at the core of the village and expand out as necessary in what came to be known as “township rings.” The first ring of townships comprised “the lands in each township that encloses [sic] all or part of any Native village identified pursuant to subsection (b) of this section.” 43 U.S.C. § 1610(a)(1)(A). The second ring of townships comprised “the lands in each township that is [sic] contiguous to or corners on the township that encloses all or part of such Native village; and . . . the lands in each township that is [sic] contiguous to or corners on a township containing lands withdrawn by paragraph (B) of this subsection.” 43 U.S.C. § 1610(a)(1)(B), (C). In other words, all the statute granted the villages was the land within the village boundaries, along with available connecting lands. It was only if this rather obvious grant was determined to be “insufficient” to fill the acreage allotted by the ANCSA that a Village Corporation would be entitled to more land elsewhere. Section 1610 further provides:

If the Secretary determines that the lands withdrawn by subsections (a)(1) and (2) hereof are insufficient to permit a Village or Regional Corporation to select the acreage it is entitled to select, the Secretary shall withdraw three times the deficiency from the nearest unreserved, vacant and unappropriated public lands.

43 U.S.C. § 1610(a)(3)(A). No provision in the ANCSA conferred on plaintiff a right to any particular acre.[15]

While Public Law Nos. 94-204 and 94-456 altered the pool of lands from which plaintiff was entitled to select, those laws did not alter plaintiff’s right to select its full acreage from a pool of land, which was the extent of plaintiff’s property right under the ANCSA. Plaintiff had no problem selecting the property on which it was actually situated. Plaintiff’s difficulties center around its attempt to fill its statutory allotment of 115,200 acres with tracts of land from other areas. Simply put, plaintiff wanted land that the Government did not offer.

When plaintiff’s first and second ring townships were found to be insufficient to fill the statutory allotment of 115,200 acres, the Secretary withdrew from public lands three times the deficiency from which plaintiff could attempt to fill its allotment. See 43 U.S.C. § 1610(a)(3)(A). It is this process (along with the desire to remove the selections of lands in the Lake Clark area) that generated the controversy, when Public Law Nos. 94-204 and 94-456 — which ratified the T&C and the agreement CIRI made with Interior and incorporated the agreement CIRI made with plaintiff and other Village Corporations — changed the procedures and the pool of lands from which plaintiff could select. Plaintiff knew, or should have known, the ramifications of its agreement with CIRI. The Village 12(a) Agreement explicitly states:

Both the Cook Inlet Region and the Village Corporations desire a legislative resolution that shall insure that the Village Corporations receive their statutory entitlement under ANCSA; and . . . [both] support the legislation attached as Appendix A to this agreement or a version substantially conforming thereto . . . .

The Village 12(a) Agreement also explicitly states that the lands would be conveyed to CIRI for reconveyance to the Village Corporations. Plaintiff has claimed that it had a right to have these lands conveyed directly to it, but the Village 12(a) Agreement, to which it was a party, expressly states otherwise. Plaintiff’s claim that the lands should have been conveyed directly to the Village Corporations is therefore without merit.

As for plaintiff’s claim that it did not understand the effect of the various agreements and Public Law Nos. 94-204 and 94-456, one need merely examine a letter dated May 4, 1976, from Fred H. Elvsaas, President of plaintiff Seldovia Native Association, Inc., to Interior. In that letter Mr. Elvsaas states that the various agreements and enactments

will force the villages to take land that they have previously refused to select — namely, filling the “holes” in the Iniskin Peninsula. If this is so, the legislation means that CIRI will be selecting land for the villages, whereas section 12(b) of the . . . [ANCSA] gives the villages the right to select their own lands.

Plaintiff knew the impact of the agreements and was a party to them. The agreements were adopted by Congress in Public Law Nos. 94-204 and 94-456. Plaintiff understood the effect of those laws when they were enacted, and if any taking of property occurred, plaintiff should have filed suit, at the latest, within six years of the operative date of the last of those Acts.

As for plaintiff’s desire for selections in Appendix C to the CIRI/Interior Deficiency Agreement, that agreement states on its first page that CIRI shall be allotted lands listed in Appendix C only “to the extent the lands conveyed pursuant to paragraph [Appendix] A when added to lands otherwise heretofore received or to be received by such Village Corporations are insufficient to satisfy their statutory entitlement.” In this manner plaintiff was on notice that it was not entitled to select from Appendix C.

In altering substantive rights through enactment of rules of general applicability, a legislature generally provides constitutionally adequate process simply by enacting the statute, publishing it, and, to the extent the statute regulates private conduct, affording those within the statute’s reach a reasonable opportunity both to familiarize themselves with the general requirements imposed and to comply with those requirements.

United States v. Locke, 471 U.S. 84, 108, 85 L. Ed. 2d 64, 105 S. Ct. 1785 (1985) (citing Texaco, Inc. v. Short, 454 U.S. 516, 532, 70 L. Ed. 2d 738, 102 S. Ct. 781 (1982)).

Plaintiff’s objections to its loss of selections in the Lake Clark area, pursuant to Public Law No. 94-204, similarly cannot succeed. That plaintiff’s representative was present at meetings and apprised of the enactment of Public Law Nos. 94-204 and 94-456 indicates that plaintiff knew or should have known of the existence of those public laws and their effect on plaintiff’s Lake Clark selections. See Locke, 471 U.S. at 108. Pub. L. No. 94-204 states:

The provisions of this section shall take effect at such time as all of the following have taken place:
(1) the State of Alaska has conveyed or irrevocably obligated itself to convey lands to the United States for exchange, hereby authorized, with the Region in accordance with the document referred to in subsection (b) [the T&C];
(2) the Region and all plaintiffs/appellants have withdrawn from Cook Inlet against Kleppe, numbered 75-2232, ninth circuit, and such proceedings have been dismissed with prejudice; and
(3) all Native village selections under section 12 of the Settlement Act of the lands within Lake Clark, Lake Kontrashibuna, and Mulchatna River deficiency withdrawals have been irrevocably withdrawn and waived.

Pub. L. No. 94-204, § 12(a)(1)-(3), 89 Stat. at 1151. CIRI outlined the effect of fulfilling these conditions quite clearly in its letter of November 30, 1977, to Mr. Elvsaas. Plaintiff knew, or should have known, that when the requirements set forth in Public Law No. 94-204 were met, the provision would become operative and the areas around Lake Clark no longer would be subject to selection. Public Law No. 94-204 was enacted in January 2, 1976, and plaintiff did not meet the final implementing requirements of the law until March 20, 1978. Consequently, plaintiff had two years to familiarize itself with the effect of the law before agreeing to withdraw its lawsuit and its selections around Lake Clark, thereby implementing the Act. 

Congress is afforded broad discretion when granting a new right, as it did under the ANCSA. Plaintiff had no prior claim to any lands outside its village, and, even if it did, those claims were extinguished by the ANCSA. 43 U.S.C. § 1603. All the acreage that plaintiff now desires was granted to it by Congress; had there been no ANCSA, plaintiff would have had no more acreage than the extent of its village boundaries in 1970. Congress’ decision to change the pool from which plaintiff could select its acreage was hardly unilateral: Extensive discussions and negotiations took place among Interior, Alaska, CIRI, and plaintiff regarding the lands available. Plaintiff was not a party to the T&C, because the T&C involved lands to be conveyed to CIRI as a 12(b) allotment, not lands for plaintiff’s 12(a) selections. Thus, plaintiff’s position on the sidelines of that agreement was appropriate. Plaintiff was directly involved in the agreements surrounding its 12(a) selections — the Village 12(a) Agreement and the CIRI/Interior Deficiency Agreement. Again, these lands did not involve the first or second rings of land composing plaintiff’s actual village and environs, but the pool of lands from which plaintiff could augment its 12(a) selections to garner its full acreage entitlement under the ANCSA. That Congress has the right to condition its grant of a new property interest on reasonable and non-arbitrary conditions is unquestioned. Congress has not deprived plaintiff of the benefits conferred under the ANCSA by enacting Public Law Nos. 94-204 and 94-456; rather, it merely has chosen to adjust the pool of lands available for selection to enable the creation of a national park and to effect a mutually agreeable compromise with the parties involved.

Plaintiff argues that at the time it filed its selections it acquired a vested property interest in those selections. Defendant counters that the act of selection alone is not enough to acquire a vested property interest in those lands. Defendant points to the fact that a Village Corporation may select more land than it was entitled to and then prioritize those selections. 43 C.F.R. § 2651.4. Accordingly, if plaintiff took advantage of this option, it could not have a vested right in all the land selected, since plaintiff could not acquire all the lands selected or know at the time of selection which lands it actually would receive.

Congress has the power to extinguish property interests it has created if the beneficiaries of the grant do not meet any conditions precedent. See, e.g., Locke, 471 U.S. at 84 (upholding Congress’s broad powers to condition retention of government-granted property interests on fulfillment of reasonable administrative procedures); Texaco, 454 U.S. at 516 (constituent to condition retention of state- granted property interest on performance of reasonable actions indicating present intention to retain interest). Conditions that further a legitimate governmental goal are not arbitrary. Texaco, 454 U.S. at 529. “The State surely has the power to condition the ownership of property on compliance with conditions that impose such a slight burden on the owner while providing such clear benefits to the State.” Id. at 529-30. It is a legitimate goal of Congress to rid federal lands of stale claims. Locke, 471 U.S. at 105-06. When it is the beneficiary’s failure to meet the conditions — not the Government’s action that affects the property right granted — no taking is present that requires compensation. Texaco, 454 U.S. at 503.

Even with respect to vested property rights, a legislature generally has the power to impose new regulatory constraints on the way in which those rights are used, or to condition their continued retention on performance of certain affirmative duties. As long as the constraint or duty imposed is a reasonable restriction designed to further legitimate legislative objectives, the legislature acts within its powers in imposing such new constraints or duties.

Locke, 471 U.S. at 104 (citations omitted). “Legislation readjusting rights and burdens is not unlawful solely because it upsets otherwise settled expectations.” Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 16, 49 L. Ed. 2d 752, 96 S. Ct. 2882 (1976) (citations omitted). Moreover, Congress need not compensate erstwhile owners of a property interest for the consequences of their own neglect: “Regulation of property rights does not ‘take’ private property when an individual’s reasonable, investment-backed expectations can continue to be realized as long as he complies with reasonable regulatory restrictions the legislature has imposed.” Locke, 471 U.S. at 107 (citations omitted).

Section 1613(a) of the ANCSA states: “Immediately after selection by a Village Corporation . . . the Secretary shall issue to the Village Corporation a patent to the surface estate.” Section 1613(c) is entitled, in part: “Patent requirements; order of conveyance; vesting date.” The word “vesting” is not actually used in the text of the section, but the section provides that upon receipt of a patent “the Village Corporation shall first convey to any Native . . . title to the surface estate in the tract occupied as of December 18, 1971,” thereby implying that this date acts as a retroactive vesting date under section 1613(c)(1). Reading these sections together, the clear implication is that until the patent is granted — i.e. until the 12(a) and/or 12(b) selections are approved — there is no vested interest.

A “patent” is defined as the instrument by which a state or government grants public lands to an individual. Black’s Law Dictionary 1125 (6th ed. 1990). It has also been defined as the official document issued by the United States attesting that fee title to the land is in the private owner. Kunkes v. United States, 78 F.3d 1549, 1551 (Fed. Cir. 1996). Until lands are patented, title remains in the United States. Best v. Humboldt Placer Mining Co., 371 U.S. 334, 336, 9 L. Ed. 2d 350, 83 S. Ct. 379 (1963). In determining the validity of claims against public lands, the Supreme Court has held that

no right arises from an invalid claim of any kind. All must conform to the law under which they are initiated . . . . Of course, the land department has no power to strike down any claim arbitrarily, but so long as the legal title remains in the Government it does have power, after proper notice and upon adequate hearing, to determine whether the claim is valid and, if it be found invalid, to declare it null and void.

Cameron v. United States, 252 U.S. 450, 460, 64 L. Ed. 659, 40 S. Ct. 410 (1920). Extending this reasoning to the ANCSA, the BLM had the right to determine whether plaintiff’s selections were valid and to issue a patent only if the claims were proper. Therefore, until that patent issued, plaintiff had no vested rights in the lands selected.

The property interest held by Village Corporations, like plaintiff, has been construed to be merely a contingent one, subject to compliance with the settlement scheme outlined in the ANCSA. See e.g., Cape Fox Corp. v. United States, 4 Cl. Ct. 223, 236 (1983). If this claim had been timely filed, the court would have found that plaintiff had no vested right in particular lands eligible for compensation under the Fifth Amendment. Id.[16] However, as discussed below, the court has concluded that plaintiff failed to file its claim within the statute of limitations. Consequently, the court lacks jurisdiction and need not rule definitively on the constitutional takings issue. See Soriano, 352 U.S. at 270. 

2) Accrual

In order for jurisdiction to exist in this court over a takings claim, the complaint must be filed within six years of accrual. 28 U.S.C. § 2501. Thus, determination of the date of accrual is of great import. A claim has accrued when operative facts exist that are not inherently unknowable. Menominee Tribe of Indians v. United States, 726 F.2d 718, 720-22 (Fed. Cir. 1984), cert. denied, 469 U.S. 826, 83 L. Ed. 2d 50, 105 S. Ct. 106 (1985). All events necessary to fix the liability of a defendant must have occurred for the plaintiff to have a legal right to maintain his own action. Creppel v. United States, 30 Fed. Cl. 323, 329 (1994), aff’d in part, rev’d in part, 41 F.3d 627 (Fed. Cir. 1994) (citing Catawba Indian Tribe v. United States, 982 F.2d 1564, 1570 (Fed. Cir.), cert. denied, 509 U.S. 904, 113 S. Ct. 2995, 125 L. Ed. 2d 689 (1993)). A cause of action under the Fifth Amendment accrues when the taking occurs. Creppel, 41 F.3d at 633; Alliance of Descendants of Texas Land Grants v. United States, 37 F.3d 1478, 1481 (Fed. Cir. 1994).

Plaintiff has suggested that vested rights to land under the ANCSA do not accrue until “completion of the numerous procedural steps mandated in the statutory scheme.” Cape Fox, 4 Cl. Ct. at 236. This implies that a takings claim could not ripen until all those “numerous procedural steps” have been pursued to their conclusion. Under this interpretation it might appear that plaintiff’s 12(b) claims remanded to the BLM in 1992 have not yet ripened, rendering this action premature. However, the IBLA’s December 23, 1992 remand order makes clear that those selections involved land conveyed to the State under Public Law No. 94-456. Because plaintiff is challenging Congress’ decision to transfer certain lands to the State, the date for filing such claims would be within six years of the enactment of Public Law No. 94-456. No requirement is present that plaintiff must exhaust administrative remedies before the statute of limitations can begin to run, because no action by the Interior, at any level, can alter the pool of lands made available to plaintiff by Congress.

With respect to statute of limitations issues, “exhaustion [of administrative remedies] is the rule in the vast majority of cases.” Bowen v. City of New York, 476 U.S. 467, 486, 90 L. Ed. 2d 462, 106 S. Ct. 2022 (1986). Exhaustion of administrative remedies is required where Congress imposes an exhaustion requirement by statute. See, e.g., Weinberger v. Salfi, 422 U.S. 749, 766-67, 45 L. Ed. 2d 522, 95 S. Ct. 2457 (1975); Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51, 82 L. Ed. 638, 58 S. Ct. 459 (1938).

Where a statutory requirement of exhaustion is not explicit, “courts are guided by congressional intent in determining whether application of the doctrine would be consistent with the statutory scheme.” Patsy v. Board of Regents, 457 U.S. 496, 502 n.4, 73 L. Ed. 2d 172, 102 S. Ct. 2557 (1982). Moreover, “a court should not defer the exercise of jurisdiction under a federal statute unless it is consistent with that intent.” Id. at 501-502.

Exhaustion is generally required as a matter of preventing premature interference with agency processes, so that the agency may function efficiently and so that it may have an opportunity to correct its own errors, to afford the parties and the courts the benefit of its experience and expertise, and to compile a record which is adequate for judicial review.

Weinberger, 422 U.S. at 765.

Regulations applicable to the ANCSA state that “[a] decision of the Board [of Land Appeals] shall constitute final agency action,” and that “[a] petition for reconsideration need not be filed to exhaust administrative remedies.” 43 C.F.R. § 4.403 (1995). The conjunction of these two sentences within the same section implies that pursuit of an IBLA decision is required to exhaust administrative remedies. However, because plaintiff is claiming a right to particular lands that Congress denied it through legislation, the basis for plaintiff’s takings claim is not an agency taking, but, rather, a taking by congressional enactment. No administrative decision could give plaintiff what Congress has denied. Therefore, the doctrine of administrative exhaustion does not apply in this case. It is Congress that interfered with plaintiff’s alleged property interest. As a consequence the statute of limitations began to run, at the latest, from the date that Public Law No. 94-204 became operative, not the date of the exhaustion of administrative remedies.

Plaintiff’s takings claims spring from its desire to select lands that Congress, though Public Law Nos. 94-204 and 94-456, made off limits. Any claim by plaintiff that Congress appropriated its vested rights in specific land selections thus accrued, at the latest, on the day the last of these enactments became operative. Furthermore, as noted above, plaintiff was on notice of the impact of the various provisions. Plaintiff has relied on Lee v. United States, 22 Cl. Ct. 457 (1991), aff’d, 954 F.2d 735 (Fed. Cir. 1992) (Table), to argue that the statute of limitations has not run on its action. In Lee a homesteader claimed equitable title to lands transferred to a Native corporation under the ANCSA. The court held that the homesteader could not have brought his claim until the transfer of land to the Native corporation was completed. Id. at 462. In that case the homesteader had to wait to see which Native corporation would take legal title to the land on which he was squatting, so the statute of limitations did not begin to run until the transfer. Id.

In this case plaintiff did not have to wait for any transfer to occur; plaintiff wanted land that it could not get because of clear and unambiguous agreements and congressional enactments. Plaintiff should have filed suit when Public Law Nos. 94-204 and 94-456 became operative and conveyed to the State and CIRI lands plaintiff wanted. Public Law No. 94-204 became law on January 2, 1976, and became operative on March 20, 1978 — when plaintiff complied with its conditions — and Public Law No. 94-456 became law on October 4, 1976. To meet the statute of limitations, plaintiff had to file its claim, at the latest, by March 20, 1984, which it failed to do. Plaintiff’s claims are barred by the statute of limitations. [17]

In addition to its takings claims, plaintiff also makes several claims that the Government breached fiduciary duties. First, plaintiff claims that the Government breached its fiduciary duty by agreeing to convey to Alaska lands the Government had obligated itself to convey to Seldovia. Second, plaintiff claims that the Government breached its fiduciary duty by modifying and diminishing plaintiff’s 12(b) rights by enacting Public Law Nos. 94-204 and 94-456. Third, plaintiff claims that the Government’s failure to inform it of changed rights under the new laws also breached its fiduciary duties. Fourth, plaintiff makes a similar charge regarding lands conveyed to CIRI. Fifth, plaintiff alleges a breach of fiduciary duty by the Government’s entering into the CIRI/Deficiency Agreement. Finally, plaintiff claims a breach of fiduciary duty by the Secretary’s actions pursuant to the CIRI/Deficiency Agreement.

The Supreme Court in United States v. Mitchell, 463 U.S. 206, 226-27, 77 L. Ed. 2d 580, 103 S. Ct. 2961 (1983) (known as Mitchell II), outlined two basic requirements which must be met to give rise to federal fiduciary responsibilities: 1) A federal statutory or regulatory scheme imposes certain broad management responsibilities of Indian resources upon the Government, and 2) these management responsibilities require the Government to generate revenue from the Indian resources under management. No express provision in the ANCSA creates a trust or fiduciary relationship between the Government and Village Corporations or Regional Corporations. To the contrary, the first section of the Act establishes that Congress intended to avoid establishing any “wardship or trusteeship” under the ANCSA. 43 U.S.C. § 1601(b). The legislative history shows that the Senate considered and rejected language that would have created such obligations. The Senate Report accompanying the bill stated: 

A major purpose of this Committee and the Congress is to avoid perpetuating in Alaska the reservation and the trustee system which has characterized the relationship of the Federal Government to the Indian peoples in the contiguous 48 states.

S. Rep. No. 92-405, 92d Cong., 1st Sess. 108 (1971). The House of Representatives rejected a version of the bill which would have had the Secretary holding lands “in trust” for the villages until the villages qualified to receive the patent to the property. See H.R. Conf. Rep. No. 92-746, 92d Cong., 1st Sess. 37 (1971), reprinted in 1971 U.S.C.C.A.N. 2247. A court should not recognize rights under a statute that Congress expressly excluded from the statute. See Gulf Oil Corp. v. Copp Paving Co., Inc., 419 U.S. 186, 200-01, 42 L. Ed. 2d 378, 95 S. Ct. 392 (1974).

As the Court of Federal Claims has noted, “no provision in [the] ANCSA . . . expressly creates a trust or fiduciary relationship between a village corporation and the United States that is to be operative before or after land selection.” Cape Fox, 4 Cl. Ct. at 233. Consequently, “there is no indication that Congress in its enactment of the ANCSA intended a fiduciary relationship.” Id. Because the ANCSA created no federal fiduciary duties, plaintiff’s claims that various actions by the Government breached certain fiduciary duties cannot survive. Defendant consequently is granted summary judgment on those claims in plaintiff’s complaint that allege a breach of a fiduciary duty.

CONCLUSION

Accordingly, based on the foregoing, defendant’s motion for summary judgment is granted. Plaintiff’s cross-motion for partial summary judgment is denied. The Clerk of the Court shall dismiss plaintiff’s complaint without prejudice for lack of subject matter jurisdiction.

IT IS SO ORDERED.

No costs.

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September 12, 1996

On May 30, 1996, an opinion and order issued granting defendant’s motion for summary judgement. Seldovia Native Ass’n, Inc. v. United States, 35 Fed. Cl. 761 (1996). Thereafter, plaintiff, pursuant to RCFC 59(a)(1), moved for reconsideration, arguing that the court had made “erroneous findings and conclusions.” Plf’s Br. filed June 14, 1996, at 2. Plaintiff presents two basic claims in its motion: 1) Plaintiff seeks the opportunity to brief the issue of the extent of its knowledge of the T&C and the CIRI/Intenor Deficiency Agreement; and 2) plaintiff asserts that the court made erroneous legal and factual findings. Defendant responded that plaintiff could not justify a need for additional briefing and that “Seldovia’s allegations of errors are either incorrect or irrelevant.” Def’s Br. filed July 23, 1996, at 16.

1. Standard of review

RCFC 59(a)(1) states: “A new trial or rehearing or reconsideration may be granted . . . for any of the reasons established by the rules of common law or equity applicable as between private parties in the courts of the United States.” When addressing such a motion, the court is directed “to consider motions for rehearing [or reconsideration] with exceptional care.” Carter v. United States, 207 Ct. Cl. 316, 318, 518 F.2d 1199 (1975). It has long been the view that motions for reconsideration should not be entertained upon “the sole ground that one side or the other is dissatisfied with the conclusions reached by the court, otherwise the losing party would generally, if not always, try his case a second time, and litigation would be unnecessarily prolonged.” Roche v. District of Columbia, 18 Ct. Cl. 289, 290 (1883).

A motion for reconsideration is addressed at the discretion of the court. Yuba Natural Resources, Inc. v. United States, 904 F.2d 1577, 1583 (Fed. Cir. 1990). For a movant to prevail on a RCFC 59 motion, that movant must point to a “manifest error of law, or mistake of fact” and demonstrate that the motion “is not intended to give an unhappy litigant an additional chance to sway the court.” Circle K Corp. v. United States, 23 Cl. Ct. 659, 664-65 (1991). The movant “should not . . . be permitted to attempt an extensive re-trial based on evidence which was manifestly available at the time of the hearing.” Gelco Builders & Burjay Constr. Corp. v. United States, 177 Ct. Cl. 1025, 1036-37 n.7, 369 F.2d 992, 1000 n.7 (1966). To sustain its burden, the movant must show 1) an intervening change in controlling law, 2) that previously unavailable evidence has been discovered, or 3) that the motion is necessary to prevent manifest injustice. See Bishop v. United States, 26 Cl. Ct. 281, 286 (1992). This showing is necessary because “the litigation process rests on the assumption that both parties present their case once, to their best advantage;” a motion for reconsideration thus should not be based on evidence that was readily available at the time the motion was heard. Aerolease Long Beach v. United States, 31 Fed. Cl. 342, 376, aff’d, 39 F.3d 1198 (Fed. Cir. 1994) (Table).

2. Whether additional briefing should be allowed

Plaintiff seeks “an opportunity to brief the issue of the extent of Seldovia’s knowledge, or lack thereof, of the T&C and the CIRI/Interior Deficiency Agreement.” Plf’s Br. filed June 14, 1996, at 1. Plaintiff bases this request on findings that, despite plaintiff’s contention that it did not understand the nature and effect of the agreements and enactments at issue, the agreements and enactments speak for themselves and that plaintiff failed to allege fraud, duress, or undue influence so as to cast doubt upon them. See Seldovia, 35 Fed. Cl. at 774 n.16, 776 n.17. Plaintiff argues that the effects of these agreements and enactments “were objectively unknowable until the Secretary had interpreted and implemented them.” Plf’s Br. filed Aug. 9, 1996, at 3.

Plaintiff’s request for additional briefing on this issue is without merit. The parties have been afforded ample opportunity to brief the issues presented by the cross-motions for summary judgment. Based on this thorough and protracted briefing, including post-argument briefs, plaintiff’s claim that it did not understand the nature and effect of the agreements and enactments at issue had been placed fully on the record before the opinion issued. Unfortunately, plaintiff fails to comprehend the central legal findings underlying the court’s opinion. The court ruled that under the Alaska Native Claims Settlement Act, 43 U.S.C. §§ 1601-1629e (1994) (the “ANCSA”), plaintiff was entitled to receive 115,200 acres, but the statute “does not establish a right to any particular acre.” Seldovia, 35 Fed. Cl. at 771. Furthermore, even if plaintiff had selected certain lands under the statute, the mere act of selecting lands does not itself give rise to a compensable property interest. Id. at 774-75.

The agreements and enactments at issue changed the pool of lands from which plaintiff could select. Plaintiff claims that, at the time the enactments became effective, plaintiff could not have known exactly what lands it would receive. In its motion for reconsideration, plaintiff places great reliance on Catawba Indian Tribe v. United States, 982 F.2d 1564 (Fed. Cir.), cert. denied, 509 U.S. 904, 125 L. Ed. 2d 689, 113 S. Ct. 2995 (1993), for the proposition that the statute of limitations begins to run if legislative action in question strips a party of a particular right or interest. Because plaintiff could not know whether it would be allotted all the lands it selected until the procedures established by the ANCSA were implemented and completed, plaintiff takes the position that its case is distinguishable from Catawba. However, the distinction between the cases is that, unlike in Catawba, plaintiff had no right to receive the particular selections at issue. Rather, plaintiff had a right to receive an amount of land equal to the acreage allotted to it by the statute. Moreover, the essence of plaintiff’s claim is its desire to select lands “that Congress, though Public Law Nos. 94-204 and 94-456, made off limits.” Seldovia, 35 Fed. Cl. at 776. It is clear and unambiguous from these enactments that they voided a significant portion of plaintiff’s selections.

Thus, at the time of the enactments, plaintiff knew or should have known that the ANCSA did not recognize plaintiff’s alleged right to its selections, and plaintiff then could have sought redress in court. The fact that plaintiff might not have known the full extent of its alleged injury was not a bar to bringing suit. See Fallini v. United States, 56 F.3d 1378, 1382 (Fed. Cir. 1995) (“It is not necessary that the damages from the alleged taking be complete and fully calculable before the cause of action accrues.”), cert. denied, 135 L. Ed. 2d 189, 116 S. Ct. 2496, U.S. , 116 S. Ct. 2496 (1996); Catawba, 982 F.2d at 1570 (holding that statute of limitations begins to run at effective date of statute regardless of party’s subjective understanding of statute). The statute of limitations began to run on the effective date of the enactments. Consequently, plaintiff’s argument that it had some subjective misunderstanding of the documents and enactments is irrelevant, and additional briefing on this issue is unnecessary.

3. Whether legal and factual errors are present

In its motion for reconsideration, plaintiff alleged 13 instances in which the court made erroneous legal or factual findings. These alleged errors will be addressed in the order in which they are discussed in plaintiff’s brief.

1) First alleged error

In its opinion the court stated that it would not consider “a one-sentence typed amendment — uninitialed and unauthenticated — on [plaintiff’s] Withdrawal, Relinquishment, and Waiver of Selections Agreement from the Lake Clark area that states: ‘All other 12(b) selections made by Seldovia Native Association, Inc. shall remain valid.'” Seldovia, 35 Fed. Cl. at 768 n. 14. Plaintiff argues that this determination was in error because the amendment was authenticated by the affidavit of Fred Elvsaas. In the affidavit Mr. Elvsaas stated: “Seldovia conditioned its relinquishment of its 12(b) selections in those areas, however, on the remainder of its 12(b) selections remaining valid.” Affidavit of Fred Elvsaas, Aug. 3, 1995, P 17. This hardly suffices as authentication; it is merely a description of the amendment and it does not explain how it was added to the document or prove its enforceability.

Moreover, in his March 31, 1992, affidavit, Mr. Elvsaas admits that this amendment was added unilaterally to the document, by plaintiff, at the time it executed the waiver and relinquishment agreement. See Affidavit of Fred Elvsaas, Mar. 31, 1992, P 41. Finally, even if the court were to have considered the amendment at issue, it would not impact the merits of this case, because, as at least one other court has found, the amendment does not diminish or condition the effect of the relinquishment agreement or, ultimately, the T&C. See Seldovia Native Ass’n, Inc. v. United States, A91-076 Civ. (D. Alaska Dec. 16, 1994) (stating that T&C intended all Appendix E lands in the State of Alaska despite plaintiff’s objections).

2) Second alleged error

Plaintiff argues that the court “mischaracterizes Seldovia’s property right as a right to a certain number of acres, but no right to any particular parcel.” Plf’s Br. filed June 14, 1996, at 3. The basis of plaintiff’s argument is a provision of section 1613(a) of the ANCSA, defining the number of acres to which each Village Corporation is entitled, which states: “The lands patented shall be those selected.” 43 U.S.C. § 1613(a) (1994). Plaintiff attempts to imply that this “patent” language in the statute creates a right to receive particular acres.

The court found that, with one exception, the ANCSA gives plaintiff a right to receive 115,200 acres, but it does not give plaintiff a right to any particular acre. Seldovia, 35 Fed. Cl. at 771. The act of merely selecting lands does not give rise to a property interest because Village Corporations may select more acres than their statutory allotment, in case some of their selections conflict with the selections of other Village Corporations. Id. at 773. Thus, the act of making a selection itself does not lead automatically to issuance of a patent for that selection. As a result, the “patent” language in section 1613(a) is irrelevant to the court’s ruling that plaintiff does not have a right to receive any particular acre. Plaintiff may disagree with the legal determination, but there has been no mischaracterization.

3) Third alleged error

Plaintiff argues that the court erred by quoting a section of a document that itself contained a potential error. The court quoted the following section of the Village 12(a) Agreement:

Both the Cook Inlet Region and the Village Corporations desire a legislative resolution that shall insure that the Village Corporations receive their statutory entitlement under ANCSA; and . . . [both] support the legislation attached as Appendix A to this agreement or a version substantially conforming thereto . . . .

Id. at 771-72. Plaintiff states that there was no Appendix A attached to the agreement. Defendant concedes that no Appendix A is attached to the agreement currently and that defendant has been unable to locate this alleged appendix. The court was not aware of this fact and corrects its May 30, 1996 opinion insofar as the mysterious status of Appendix A should be noted. Nevertheless, the court did not rely on the existence of Appendix A for any of its findings in this matter, and the parties’ revelation that it might not exist does not affect the court’s ruling.

4) Fourth alleged

Plaintiff claims that the court erred when, in the context of its discussion of the Village 12(a) Agreement — which allowed 12(a) selections to be conveyed directly to the CIRI — it ruled that “plaintiff’s claim that the lands should have been conveyed directly to the Village Corporations is therefore without merit.” Id. at 772. Plaintiff objects because its complaint contains claims regarding the transfer of both 12(a) and 12(b) selections to the CIRI. Plaintiff contends that the court cannot base its finding that plaintiff’s “claim” — meaning its entire claim — has no merit on an agreement that applies only to 12(a) selections, not 12(b) selections.

The court made this finding in the context of the Village 12(a) Agreement. It is fairly obvious that when a finding is made based upon a particular agreement, that finding relates to those issues covered by that agreement. The court’s above finding was directed only to plaintiff’s “claim” regarding the transfer of the 12(a) selections to CIRI — not the transfer of 12(b) selections to CIRI. Although such a conclusion should be implicit, to the extent that the court was insufficiently precise in its finding, the May 30, 1996 opinion is corrected insofar as the above-quoted sentence should read: “Plaintiff’s claim, relating to 12(a) selections, that lands should have been conveyed directly to the Village Corporations is therefore without merit.” As for the transfer of the 12(b) selections to CIRI, as the opinion notes, that was approved by the CIRI/Interior Deficiency Agreement, which was ratified by Public Law No. 94-456, 89 Stat. 1934 (1976). Id. at 772.

5) Fifth alleged error

Plaintiff argues that the court erroneously relied on a statement made by Mr. Elvsaas in a May 4, 1976 letter to conclude that plaintiff understood the impact of the various agreements and enactments. Id. at 772. This statement by Mr. Elvsaas was quoted because it demonstrates that he understood the general impact of the agreements and enactments at issue. As plaintiff notes, however, this letter was written on May 4, 1996, before the August 31, 1976 CIRI/Interior Deficiency Agreement and before Public Law No. 94-456, 89 Stat. 1934, which became law on October 4, 1976. In this respect the court should have communicated that it was using this statement by Mr. Elvsaas to demonstrate his general understanding, not his particular knowledge of specific documents and enactments. Thus, the opinion is corrected insofar as the finding, based upon the letter, that “plaintiff knew the impact of the agreements” should read: “Plaintiff had a general knowledge and understanding of the eventual impact of the agreements.” Id. Finally, as noted in the above discussion regarding the claim for additional briefing, plaintiff’s alleged confusion regarding the effect of the various agreements and enactments does not undermine the court’s ruling.

6) Sixth alleged error

Plaintiff alleges that the court erroneously concluded that plaintiff was on notice that it was not entitled to select the lands listed in Appendix C of the CIRI/Interior Deficiency Agreement because “that agreement states on its first page that CIRI shall be allotted lands listed in Appendix C only ‘to the extent the lands conveyed pursuant to paragraph [Appendix] A when added to lands otherwise heretofore received or to be received by such Village Corporations are insufficient to satisfy their statutory entitlement.'” Seldovia, 35 Fed. Cl. at 772 (quoting CIRI/Interior Deficiency Agreement P C). Plaintiff contends that this is an incorrect interpretation of this agreement.

Plaintiff premises its argument upon its belief that the CIRI/Interior Deficiency Agreement protected its 12(a) selections because paragraph B of that document states that “CIRI shall reconvey the surface estate of such lands to the Village Corporations within the Region pursuant to an agreement between CIRI and the affected Village Corporations,” which is the Village 12(a) Agreement. That agreement states in paragraph 3:

Upon receipt of a conveyance of such satisfactory land from the Secretary of the Interior pursuant to the legislation attached as Appendix A, Cook Inlet Region will reconvey the surface estate to such land to the Village Corporation entitled thereto under their Section 12(a) selections as rapidly as possible. . . .

Thus, plaintiff is arguing that paragraph 3 of the Village 12(a) Agreement was incorporated or ratified by the CIRI/Interior Deficiency Agreement, thereby protecting its 12(a) selections.

The CIRI/Interior Deficiency agreement is clear that plaintiff may receive the lands listed in Appendix C only if, after being conveyed lands pursuant to paragraph A of the agreement, it still is entitled to additional acres to fulfill its statutory allotment. As for the above-quoted paragraph, it proves nothing and is subject to the following condition in paragraph 3(B) of the very same agreement, which states that a Village Corporation has the right to receive the 12(a) selections only when “it is clear that a Village Corporation will be eligible for the land.” This eligibility standard is governed by the CIRI/Interior Deficiency Agreement, which by its terms defeats plaintiff’s claim.

7) Seventh alleged error

Plaintiff takes issue with the finding that plaintiff was apprised of the effect of Public Law No. 94-204, 89 Stat. 1145 (1976), on its selections in the Lake Clark area, id. at 772-73, although plaintiff admits that this finding “may be true.” Plf’s Br. filed June 14, 1996, at 5. In fact, plaintiff alleges no error whatsoever regarding this finding. Plaintiff simply is using this alleged error as an opportunity to re-argue the merits of the finding. The purpose of a motion for reconsideration is not to reargue the case. See Roche, 18 Ct. Cl. at 290. Since plaintiff has alleged no error, plaintiff’s argument on this point is rejected.

8) Eighth alleged error

Plaintiff alleges that the court erred when it stated: “Plaintiff was not a party to the T&C, because the T&C involved lands to be conveyed to CIRI as a 12(b) allotment, not lands for plaintiff’s 12(a) selections.” Seldovia, 35 Fed. Cl. at 773. Plaintiff’s objection is, as follows: “12(b) lands are not to be conveyed to Regional Corporations as an allotment. Regional Corporations are ‘allocated’ a certain amount of acreage and that acreage is reallocated to the villages from which the villages then select their 12(b) lands.” Plf’s Br. filed June 14, 1996, at 5.

Plaintiff is correct that the sentence in question contains some confusing terminology and one error. The May 30, 1996 opinion is corrected insofar as the sentence should read: “Plaintiff was not a party to the T&C, because the T&C involved lands to be transferred to CIRI in partial satisfaction of CIRI’s 12(c) allotment, not lands for plaintiff’s 12(a) selections.” The court regrets this error, but it does not affect the conclusion that it was appropriate for plaintiff to be on the sidelines of the T&C because the T&C involved allocations directly to CIRI and because plaintiff would not be bound by the T&C unless it met the implementing requirements set forth in Public Law No. 94-204, §§ 12(a)(1)-(3), 89 Stat. 1145, 1151. See Seldovia, 35 Fed. Cl. at 772-73.

9) Ninth alleged error

Plaintiff alleges that the court incorrectly asserts that plaintiff was involved directly in the CIRI/Interior Deficiency Agreement. The court stated: “Plaintiff was directly involved in the agreements surrounding its 12(a) selections — the Village 12(a) Agreement and the CIRI/Interior Deficiency Agreement. Id. at 773. The statement was not in error. Plaintiff was directly involved in and a party to the Village 12(a) Agreement. That agreement’s provisions regarding plaintiff’s 12(a) selections were incorporated into the CIRI/Interior Deficiency Agreement. Thus, plaintiff’s participation in crafting the Village 12(a) Agreement was manifested directly in the CIRI/Interior Deficiency Agreement. Consequently, with regard specifically to plaintiff’s 12(a) selections, plaintiff was directly involved in and had an opportunity to influence both the Village 12(a) Agreement and ultimately, by implication, the CIRI/Interior Deficiency Agreement.

10) Tenth alleged error

In footnotes Nos. 16 and 19, the court rejected plaintiff’s claim that it did not understand the nature and effect of the various agreements and enactments, stating that plaintiff’s “averments of ignorance” failed to create triable issues and noting that plaintiff failed to charge the Government with perpetrating “fraud, duress, or undue influence” so as to prevent plaintiff from understanding the nature and effect of the various agreements and enactments. Id. at 774 n.16, 776 n.17. Having failed to make this argument until the filing of this motion, plaintiff now attempts to put forth an argument that the Government, indeed, did act fraudulently. Motions for reconsideration are not a vehicle for parties to present arguments that they should have made during the regular briefing. General Elec. v. United States, 189 Ct. Cl. 116, 117-18, 416 F.2d 1320, 1321 (1969) (per curiam).

Plaintiff’s argument is not only tardy; it is timid. Plaintiff is not even willing to make a claim of fraudulent action directly; rather, it merely states that the Government provided information that was “tainted with misadvice. ” Plf’s Br. filed June 14, 1996, at 6. Plaintiff’s reluctance to use the term “fraud” is understandable when one examines the evidence plaintiff proffers to support its accusation. That evidence includes, among other things, accusations in a portion of a complaint filed in a prior case before a different court and a tortured reading of a June 18, 1976 letter from Chris Farrand, Assistant Secretary of the Department of Interior, to United States Senator Ted Stevens. The paucity of plaintiff’s proof proves the point. Plaintiff did not argue fraud in the briefing on cross-motions for summary judgment and now, even giving itself an improper opportunity to make the claim in the context of a motion for reconsideration, still cannot bring itself to assert fraud. Plaintiff’s claim of error is groundless.

11) Eleventh alleged error

Plaintiff alleges that the court erred when it stated: “Plaintiff has suggested that vested rights to land under the ANCSA do not accrue until ‘completion of the numerous procedural steps mandated in the statutory scheme.'” Seldovia, 35 Fed. Cl. at 775 (quoting Cape Fox Corp. v. United States, 4 Cl. Ct. 223, 236 (1983)). Plaintiff contends that “this is not an entirely accurate characterization of Seldovia’s claim. Seldovia contends that its selection rights vested at the moment of selection. Its taking claims, however, did not accrue until the takings occurred, which was, with respect to any particular selection, when the selection was rejected.” Plf’s Br. filed June 14, 1996, at 8.

The above finding was made in the context of discussion of accrual of plaintiff’s claim. The court merely was attempting to note that plaintiff argues that its claim did not accrue for statute of limitations purposes until all the various procedural steps — i.e., the final acceptance or rejection of its selections — occurred. This is what the above-quoted section from the opinion was intended to convey. Nevertheless, the sentence does create a slight ambiguity; thus, in the interest of clarity the court’s opinion is corrected insofar as the above-quoted sentence should read: “Plaintiff has suggested that its claims regarding its vested rights to land under ANCSA do not accrue until ‘completion of the numerous procedural steps mandated in the statutory scheme.'”

12) Twelfth alleged error

Plaintiff contends that the court incorrectly stated that “the IBLA’s December 23, 1992 remand order makes clear that those selections involved land conveyed to the State under Public Law No. 94-456.” Id. at 775.

Plaintiff is correct. This sentence incorrectly identifies the lands that were the subject of this IBLA appeal. However, the point the court was attempting to make with this sentence was merely illustrative, and the court’s error does not affect the ruling in this case. The sentence is stricken from the opinion.

13) Thirteenth alleged error

Plaintiff takes issue with the finding that “no action by the Interior, at any level, can alter the pool of lands made available to plaintiff by Congress.” Id. at 775. After taking issue with this statement, plaintiff fails to allege that it is in error. Rather, plaintiff states that the court “misapprehends Seldovia’s argument.” Plf’s Br. filed June 14, 1996, at 8. The court does not misapprehend plaintiff’s argument; it rejects the argument. A motion for reconsideration is not a proper method for a plaintiff to state simply that it disagrees with the court’s conclusion.

CONCLUSION

Accordingly, based on the foregoing, plaintiff’s motion for reconsideration is granted to the extent consistent with this order and is otherwise denied.

IT IS SO ORDERED

Christine Odell Cook Miller, Judge

Granting in Part and Denying in Part Motion to Dismiss

I. INTRODUCTION

Defendant Arviq, Inc. has a Motion to Dismiss at Docket No. 32. Arviq argues that the Court lacks subject matter jurisdiction over this case because the Plaintiff John Nelson’s claims under the Alaska Native Claims Settlement Act (“ANCSA”) are not yet ripe for review by this Court. Specifically, Arviq argues that Nelson cannot pursue any judicial remedy until his petition to Arviq under Section 14(c) of ANCSA is ruled upon. For the reasons set forth below, Arviq’s Motion to Dismiss is GRANTED IN PART AND DENIED IN PART.

II. BACKGROUND

A. Statutory Background

The United States Congress enacted ANCSA in 1971.[1] ANCSA extinguished the Native people of Alaska’s claims to aboriginal land title, in exchange for federal lands and other consideration that were transferred to Alaska Natives.[2] In order to accomplish this purpose, Congress created regional and village corporations that were intended to receive the lands conveyed.[3] The process for selection of land by Native corporations is set forth in Section 12 of ANCSA, codified at 43 U.S.C. 1611.

ANCSA contains a number of provisions “designed to protect the rights of those with existing rights to land conveyed under ANCSA,”[4] such as existing leases, homesteads, mining claims, and similar sites.[5] Section 14(c) of ANCSA, codified at 43 U.S.C. § l613(c), requires the conveyance of lands by the village corporation to individuals on the basis of their occupancy of the lands for a particular purpose, such as a primary place of residence, a primary place of business, or a subsistence campsite.[6] To facilitate the transfer of section 14(c) properties to lawful claimants, the Secretary of the Interior enacted regulations requiring the survey of the lands claimed by the villages.[7] This regulation requires village corporations to file a map delineating its land selections, including tracts that are to be reconveyed to petitioners under section 14(c).[8] The map is then used by the Bureau of Land Management (“BLM”) as a “plan of survey.”

Although Congress’ intent under ANCSA was to quickly convey land to the Native corporations, “delays in conveyances have gone on for years,” as Arviq notes.[9] Indeed, Arviq claims that it “is in the minority of Village Corporations” that are “actually proceeding on [their] 14(c) process.’’[10] Under 43 U .S.C. § 1621(j)(l ). the BLM may make an interim conveyance of land to the corporation before the map of boundaries has been finalized. Such interim conveyances give the corporation alienable title to the land.[11]

As set forth in 43 U.S.C. 1632, “Decisions made by a Village Corporation to reconvey land under section 14(c) of [ANCSA] shall not be subject to judicial review unless such action is initiated before a court of competent jurisdiction within one year after the date of the filing of the map of boundaries as provided for in regulations promulgated by the Secretary.”[12]

B. Procedural Background

Arviq is an Alaska Native Village Corporation established under ANCSA, owned by the Alaska Native residents of Platinum, Alaska. In the early 1980s, Arviq applied to the Bureau of Land Management for title to 69,120 acres of land around the area of Platinum. The Bureau of Land Management (“BLM”) adjudicated the Section 12(a) petition in 1982, granting an interim conveyance of some of the lands selected, pursuant to Section 14(a) of ANCSA and 43 C.F.R.. § 2650.7.

On or about September 26, 1983, Plaintiff John Nelson, along with others, submitted an application to Arviq for reconveyance of land under section 14(c)(l) of ANCSA. Arviq has never adjudicated the claim. Nelson filed this suit under ANCSA on February 19, 2009, requesting several forms of relief, including: l) an order declaring Nelson’s interest in the land described in his Section 14(c) application; 2) an order requiring Arviq to convey the land to Nelson; 3) damages; and 4) “Such other relief as this Court deems just.”[13]

At the time the suit was filed, Arviq still had not ruled on Nelson’s l4(c) application, despite the passage of over 25 years since it was filed. Arviq, however, says that it “recently received patent to its ANCSA 12(a) lands, has established its 14(c) policies and is ready to adjudicate Mr. Nelson’s claim.”[14] Arviq also asserts that “after all 14(c) applications have been adjudicated by Arviq, Arviq will file its map of boundaries with the BLM.”[15]

At Docket No. 28, Nelson has filed a “Motion for Settlement Order”, in which he argues that Arviq had previously agreed to the terms of a settlement, but has reneged on that agreement by refusing to sign the settlement papers.

III. LEGAL STANDARD

A Rule 12(b)(1) motion may raise a facial or factual challenge to the court’s subject matter jurisdiction.[16] A facial challenge is directed at the legal sufficiency of a claim.[17] The burden of proof is on the party asserting jurisdiction.[18] When assessing a Rule 12(b)(l) facial challenge to the court’s subject matter jurisdiction, the non-moving party receives the same protections as those under a Rule 12(b)(6) motion, and the court applies a standard comparable to that used for Rule 12(b)(6) motions.[19] The court “will accept the [non-moving party’s] allegations as true, construing them most favorably to the [non-moving party], and will not look beyond the face of the complaint to determine jurisdiction.”[20] The court will not dismiss a claim under 12(b)(1) unless it appears without any merit.[21]

IV. DISCUSSION

Before ruling on the merits of Arviq’s Motion to Dismiss, the Court must first acknowledge Nelson’s argument that the Court has jurisdiction to rule on his “Motion for a Settlement Order.” Although Nelson’s motion was filed prior to the motion to dismiss, the Court cannot rule on his motion so long as the Court’s subject matter jurisdiction is in doubt. The issue of a lack of subject matter jurisdiction “may be raised at any time.”[22] The Court must address Arviq’ s jurisdictional arguments before addressing any other requests for substantive relief.

In their briefing, the parties attempted to address [sic] what on its face should be a simple question: Does this Court have the power to entertain a claim for conveyance of land based on Section 14(c) of ANCSA before the Native corporation has rendered its own administrative decision on the request for conveyance? Arviq argues that the Court does not have that power, citing 43 U.S.C. 1632(b): “Decisions made by a Village Corporation to reconvey land under section 14(c) of [ANCSA] shall not be subject to judicial review unless such action is initiated before a court of competent jurisdiction within one year after the date of the filing of the map of boundaries as provided for in regulations promulgated by the Secretary.” According to Arviq, this means that no action to enforce a right under Section 14(c) may be brought in federal court before the corporation has filed its map of boundaries.

Nelson argues that the provision is not a bar to jurisdiction, but that it is merely a statute of limitations. As Nelson notes, the statute prohibits a 14(c) action in district court one year after the filing of a map of boundaries, but it is silent as to an action initiated before the map boundaries is filed. Nelson argues that if a 14(c) petitioner cannot bring an action before the map of boundaries is filed, then a Native corporation could avoid any judicial review by simply ignoring a 14(c) petition. Nelson cites Wright v. Ahtna, inc., an Alaska Superior Court case in which the court ordered the defendant Native corporation to request lands from the BLM for conveyance to the plaintiffs under § 14(c), after the corporation had failed to act on the plaintiffs’ 14(c) claim for many years.[23]

Arviq argues that Wright was wrongly decided, and that no judicial relief on a 14(c) application may be granted before a final map of boundaries has been filed with the BLM. Nelson argues that, if no such relief were available, “Village corporations could, if they chose, ‘wait out’ meritorious [14(c)] applicants until they die.” and “[c]laimants under Section 14(c) would be left with a right without a remedy against such corporations.”[24] In response, Arviq asserts that “there is nothing in ANCSA that imposes a deadline on a Village Corporation to complete its l4(c) process.”[25] Indeed, Arviq asserts that “there is no requirement that it file[] its map of boundaries by a date certain, or really, at all.”[26]

The Court agrees with Arviq that Nelson cannot obtain substantive relief under Section 14(c) prior to an adjudication by Arviq and the filing of Arviq’ s map of boundaries with the BLM. “[W]hen legislation expressly provides a particular remedy or remedies, courts should not expand the coverage of the statute to subsume other remedies.”[27] Congress has provided l4(c) applicants with a remedy. Through ANCSA and its pertinent regulations, Congress “delegated” to the Native corporations the “initial responsibility to resolve section 14(c) claims.”[28] It would be improper for this Court to “imply or create a cause of action on the part of a 14(c) claimant against an ANCSA corporation.”[29] If this Court were to hold that substantive relief were available in federal district court prior to the adjudication of a § 14(c) claim by the village corporation, then the administrative review process provided by ANCSA would be superfluous. Section 14(c) applicants could simply use the district court as a court of first resort.

However, the Court cannot accept Arviq’s contention that it need not adjudicate Nelson’s claim or file a map of boundaries “at all” The plain language of ANCSA could not be clearer in requiring village corporations to “convey to any Native or non-Native occupant, without consideration, title to the surface estate in the tract occupied as of December 18, 1971 [ … ]as a primary place of residence, or as a primary place of business, or as a subsistence campsite, or as headquarters for reindeer husbandry.”[30] While the timing of the conveyance is not spelled out in the statute, the obligation of a village corporation to convey the land described in § 14(c) is unquestionable. It simply cannot be the case that, because no specific timetable is set forth in the statute, a village corporation may simply ignore its obligation to convey, or to even adjudicate § 14(c) claims.

Under 28 U.S.C. § 1361, the Court has “original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.”[31] By virtue of Congress’ delegation of authority to adjudicate § 14(c) claims under ANCSA, a village corporation is an “instrument of the federal government” for the purpose of such adjudications.[32] Nelson argues that the Court has mandamus jurisdiction to order Arviq to convey the lands to him. The Court disagrees that any such cause of action exists, for the reasons stated above. But while the Court cannot rule on the merits of Nelson’s 14(c) claim, neither can it rule out the availability of some form of mandamus relief. “[I]t is well recognized that a writ of mandamus can be issued to compel a public officer to exercise the judgment or discretion which is reposed in him by law.”[33] Such relief may be appropriate in the “deplorable situation in which the responsible federal officials have failed to rule one way or the other” on the plaintiffs claim for relief.[34] As the U.S. Supreme Court has said. “A writ of mandamus may be used to compel an inferior tribunal to act on a matter within its jurisdiction, but not to control its discretion while acting.”[35] Thus, Nelson may be entitled to mandamus relief ordering Arviq to take action on his § 14(c) petition.

Arviq contends that Nelson did not specifically request mandamus relief in his Complaint, and that therefore his contention that he is entitled to mandamus is insufficient to defeat the motion to dismiss. But Nelson did request “[s]uch other relief as this Court deems just.”[36] If the facts alleged in the Complaint support a request for mandamus, then the Court will not dismiss the Complaint for failure to request that specific form of relief. Moreover, his request that the Court order Arviq to convey the land implicitly includes an order that Arviq take action on his § 14(c) petition. The Court does not take the position that Nelson is entitled to mandamus relief, but the facts set forth in his complaint can support such a request for relief, sufficient to defeat a motion to dismiss.

Arviq claims that Nelson cannot seek relief under ANCSA because the statute’s intended beneficiaries were the Native corporations. But § 14(c) of ANCSA was plainly “designed to protect the rights of those with existing rights to land conveyed under ANCSA[.]”[37] Arviq also argues that all other potential claimants to Arviq ‘s land under § 14(c) are necessary and indispensable parties to this action, and Nelson’s failure to join them is fatal. If the Court had jurisdiction to rule on the substance of Nelson’s § 14(c) petition and order a particular disposition of land title, then Arviq would be able to make such an argument. But if the only possible relief for Nelson is to order Arviq to take action on his petition, then no other parties are necessary.

Nor does Arviq’s promise that it is “ready to adjudicate Mr. Nelson’s claim”[38] necessarily render the action moot. Given Arviq’s stated position that it has no obligation to ever file a final map of boundaries with the BLM, it is hardly unreasonable for Nelson to wonder whether “Arviq may once again lose its motivation” to rule on his § 14(c) claim once the Court has dismissed this case.

V. CONCLUSION

While the Court lacks jurisdiction to rule on the merits of Nelson’s § 14(c) claim, the facts alleged by Nelson are sufficient to support a request for mandamus relief requiring Arviq to rule on his § l4(c) claim. Although Nelson has not specifically requested this form of relief: that is a defect which he may correct by way of amendment. In so ruling, the Court does not take the position as to whether Nelson is in fact entitled to such relief, nor the form which such relief might take. But the Court cannot adopt Arviq’s assertion that an Alaska Native Village corporation may refrain from ruling on a § 14(c) petition in perpetuity, without recourse in the federal courts. For the foregoing reasons, Arviq’s Motion to Dismiss at Docket No. 32 is GRANTED with regard to all of Nelson’s requests Trustor substantive relief under § 14(c) of ANCSA, but DENIED with regard to a request for procedural mandamus relief as described above.

IT IS SO ORDERED.
Dated at Anchorage, Alaska, this 27th day of April, 2011
/s/ Timothy Burgess
TIMOTHY M. BURGESS U.S. DISTRICT JUDGE

Decision on Appeal

The appellant (“Eklutna”) appeals an administrative hearing officer’s final administrative decision regarding a tax assessment against property owned by Eklutna. The hearing officer determined that the subject property was not entitled to a tax exemption under federal law. The property is a large lot located in downtown Anchorage. Eklutna received the property in a 1988 land exchange with the state, and Eklutna then sold the property to Knakanen (a wholly owned subsidiary of Eklutna’s). In 1994, Knakanen subdivided the property from one lot (Lot 1A, Block 112A) into two lots, 2A and 2B. Eklutna (which now owns the property after dissolution of Knakanen) leases Lot 2A, but claimed that Lot 2B is exempt from taxes because it is owned by a native corporation and it is not developed as per 43 U.S.C. 1620(d), or because it is a “remainder” parcel under 43 U.S.C. 1636(d).

Points on Appeal

Eklutna raises a number of issues. Each states that the hearing officer erred in his conclusions of law. See Statement of Points on Appeal. Eklutna argues that the hearing officer erred as to the following points: (1) Eklutna is not entitled to an exemption from taxes; (2) Lot 2B (except for the portion used for parking) is “developed” under 43 U.S.C. 1620(d), 43 U.S.C. 1636(d), and AS 29.45.030; (3) Lot 2B is not a remainder parcel under 43 U.S.C. 1636(d); (4) there is a potential use and potential users for the parcel; and (5) the property is in a state of present gainful and productive use.

The appellant does not specifically challenge any of the hearing officer’s findings of fact. Eklutna does, however, present issues which are mixed questions of law and fact because it appeals conclusions of law which are based on facts determined at the hearing. The standard of review for conclusions of law is the substitution of judgment test. Handley v. State Dept. of Revenue, 838 P.2d 1231, 1233 (Alaska 1992). In reviewing factual conclusions, the reviewing court uses the substantial evidence test. Substantial evidence exists when, considering the record as a whole, there is sufficient relevant evidence that a reasonable mind might accept as adequate to support the conclusion. Miller v. ITT Arctic Services, 577 P.2d 1044, 1046 (Alaska 1978). The court does not independently weigh evidence, but determines only whether substantial evidence exists. Bouse v. Fireman’s Fund Ins. Co., 932 P.2d 222, 231 (Alaska 1997).

Hearing Officer’s Factual Findings

Because the legal conclusions challenged in the appeal present mixed questions of law and fact, the factual basis on which the hearing officer’s legal conclusions are based should be summarized:

1. Lot 2B is level, cleared, and near-grade. It is zoned B-2B (allowing office buildings, retail, hotel, and high density residential uses);
2. Lot 2B has a variety of improvements, including surrounding paved city streets, and it has electric, natural gas, storm drain, sewer, telephone, cable and water service. There are public utility and right of access easements in place;
3. Downtown lots vary from about 7,000 square feet to a city block and larger. There are numerous developments in the downtown area one city block in size or larger;
4. The real estate market is depressed, and growth is especially slow in the area where Lot 2B is located; and
5. Typically, an owner does not subdivide property unless the owner has a particular project in mind.

Again, Eklutna does not challenge any of these findings, only the legal conclusions based on them.

Analysis

Although the appellant lists five points on appeal, its arguments actually involve only two questions: first, is Lot 2B “developed” as defined in federal and state statutes, and second, is Lot 2B a “remainder” parcel?

If a property is “developed”, it no longer qualifies as tax exempt. “Developed” is defined as:

a purposeful modification of land or an interest in land, from its original state that effectuates a condition of gainful and productive present use without further substantial modification. Surveying, construction of roads, providing utilities, or other similar actions, which are normally considered to be component parts of the development process but do not create the condition described in the preceding sentence, shall not constitute a developed state within the meaning of this clause

43 U.S.C. 1636(d)(2)(A)(I).

The hearing officer reasoned that there are current, potential uses for the property, and thus it is in a condition of “gainful and productive present use without further substantial modification.” Decision at 10-12. I agree. The evidence supports the conclusion that it is presently suitable for sale — other large lots have been sold and developed in the downtown area, the lot has sewer, electricity, developed roads, etc., and Knakanen marketed the property in its current configuration for development. The appellant argues that there is currently no buyer for such a large lot of land, and thus the property is not presently productive. The record, however, reflects that Lot 2B is “practically and legally suitable for sale to the ultimate user.” See Kenai Peninsula Borough, 807 P.2d at 498.

The remaining question is whether Lot 2B is a “remainder” parcel:

[L]and subdivided by a State or local platting authority on the basis of a subdivision plat submitted by the holder of the land or its agent, shall be considered developed by such a holder or agency unless the subdivided property is a remainder parcel.

43 U.S.C. 1636 (d)(2)(B)(iii). The hearing officer stated that “Under that provision [43 U.S.C. 1636(d)(2)(B)(iii)], even raw land is transformed into ‘developed’ land merely by the filing of the plat. The ‘remainder parcel’ clause mitigates the effect of the provision, by carving out an exception for what is left after the subdivision is accomplished.” Decision at 12-13.

The hearing officer concluded that “developed” land cannot be rendered a tax-exempt remainder parcel by further subdivision under Section 1636(d)(B)(iii)[sic]. Decision at 13. I agree with this statement; Lot 2B was developed prior to subdivision, and thus the remainder parcel exception does not apply.

The hearing officer stated that “[E]ven raw land is transformed into “developed” land merely by the filing of the plat.” In Kenai Peninsula Bor. v. Cook Inlet Reg., 807 P.2d 487 (Alaska 1991), the court analyzed whether certain property which was subdivided was tax exempt. After noting that the plat creating 142 lots had been approved and recorded, that utilities were available, and that the lots had not been cleared or leveled, the court held that “[a]s the subdivision has made these lots suitable for sale, they are developed within the meaning of section 21(d) of ANCSA.” Id. at 498-99. Mere filing of a plat, then, did not automatically render the land taxable; the court also analyzed the current state of the property to determine taxability.

The effect of subdivision should be analyzed where land is undeveloped prior to filing of a plat in order to determine whether land is tax exempt. However, subdivision does not automatically render land taxable. Practically speaking, of course, subdivision into small lots normally creates suitability for sale and thus subdivision may often destroy any tax exemption. But in this case, Lot 2B is “developed” because it is practically and legally suitable for sale, and because it is not a “remainder” parcel.

Estoppel and Destruction of Exemption

The Appellant also raises the issue of estoppel (arguing that the Municipality of anchorage had not taxed the property for years and had taken contrary positions over the years regarding taxability). As pointed out by the appellee, this argument was not raised below. In Gates v. City of Tenakee Springs, 822 P.2d 455, 460-61 (Alaska 1991), the court concluded that “new issues or new theories presented on appeal” will not be considered. Accordingly, the appellant’s argument regarding estoppel will not be considered. The appellee also discusses whether the transfer of the property from Eklutna to Knakanen destroyed any exemption enjoyed by Eklutna. While the appellee did raise this argument below (see Decision at 9), the hearing officer did not analyze the issue because he determined the property was already developed prior to transfer. I agree with the hearing officer, and thus I will not analyze the effect of the transfer on a tax exemption.

Conclusion

For the reasons stated above, the decision of the hearing officer is AFFIRMED.

DONE this 30th day of December 1997, at Anchorage, Alaska.

Brian Shortell, Superior Court Judge