Topic: Government

Plaintiff, Cape Fox Corporation (Cape Fox), is a village corporation incorporated under the laws of the State of Alaska pursuant to section 8(a) of the Alaska Native Claims Settlement Act (ANCSA).[1] Plaintiff’s petition was filed in the United States Court of Claims on December 10, 1980, pursuant to an order and judgment on August 4, 1978, by the United States District Court for the District of Alaska, and an amended petition was filed on February 19, 1981. The case was transferred to the United States Claims Court pursuant to section 403(d) of the Federal Courts Improvement Act of 1982.[2]

The amended petition (now complaint) asserts the United States is liable in damages in excess of $8,648,156, plus interest, as a result of the extension of a Forest Service timber sale contract on December 23, 1974, on lands that plaintiff had selected under ANCSA on December 12, 1974. The case is before the court on plaintiff’s motion for partial summary judgment on liability issues and defendant’s cross-motion for summary judgment.

Plaintiff asserts a taking claim under the fifth amendment, or, alternatively, liability for alleged violations of standards established by statute and regulation applicable to extension of timber sale contracts or, for failure to perform fiduciary duties to manage plaintiff’s timber resources. Defendant denies that the extension of the timber sale contract amounts to a fifth amendment taking, and asserts that the court is without jurisdiction to entertain plaintiff’s claims relative to breach of fiduciary duties or violation of statutory standards. Eklutna, Inc., a native village corporation, by counsel, has submitted a statement of interest as amicus curiae on behalf of plaintiff on the scope of the authority of the United States to manage selected lands prior to conveyance of the land to a selecting corporation.

On plaintiff’s motion for partial summary judgment and defendant’s cross-motion, without oral argument, for the reasons that follow, defendant is entitled to prevail.

FACTS

The essential facts have been stipulated or are not in dispute.

On October 17, 1969, the United States entered into the Devil’s Club No. 2 Timber Sale Contract, (contract), with the contract retroactive to June 26, 1969. The contract provided for Annette Timber Corporation, later known as Alaska Timber Corporation (ATC), to harvest an estimated 43.6 million board feet of timber from the Tongass National Forest by December 31, 1974, under standard Forest Service procedures. During calendar years 1969 through 1973, no action was taken toward harvesting timber covered by the contract and there was no logging or road development during those years.

The Devil’s Club sale area covers 1,530 acres on Revillagigedo Island, immediately adjacent to Coon Cove on the east side of George Inlet, about 10 air miles northeast of Ketchikan, Alaska, and entirely within a secondary township which is contiguous to the primary township at Saxman. This township is within the area from which Cape Fox was permitted to make land selections under ANCSA.

The contract was awarded to ATC prior to construction of ATC’s sawmill in Klawock, Alaska. Beginning in 1971, ATC had financial difficulty in completing construction of the mill and the mill did not begin operations until the spring of 1973. Ketchikan Pulp Company (KPC) requested a third party agreement on the contract on March 8, 1973. The proposed third party agreement was never approved by the Forest Service. By contract dated April 27, 1973, KPC assumed performance of the contract as ATC’s purchaser’s representative. ATC remained fully responsible to the Forest Service for performance.

On January 18, 1973, the regional corporation, Sealaska, held a meeting in Saxman at which it was agreed to form a Saxman land selection committee, composed of members elected from the village of Saxman. On April 19, 1973, Forest Service officials and Sealaska representatives discussed the Devil’s Club timber sale contract. Cape Fox filed for incorporation on November 13, 1973. Cape Fox was required to select 23,040 acres of land for conveyance under ANCSA by December 18, 1974. The requirements of ANCSA and its implementing regulations forced Cape Fox to make almost all of its land selections from townships other than the two primary townships in which Saxman is located.

During March 1974, KPC began to build logging roads in the contract area. On April 24, 1974, the Forest Service informed ATC that the contract expired on December 31, 1974, and that it might not qualify for an extension. Subsequent to the notification, KPC, on behalf of ATC, began vigorous efforts to cut timber in order to qualify for an extension and made substantial progress toward harvesting and road building. Logging did not begin until April 1974 and the first logs were removed on August 15, 1974.

On August 13, 1974, in a meeting between representatives of KPC and the Forest Service, the Forest Service informed KPC that the Devil’s Club sale area was within the Cape Fox selection area and that an extension of the contract depended in part on acceptance of a modification that would meet Forest Service environmental standards. KPC was told to limit its operations so that meaningful environmental review would be possible.

On August 23, 1974, the Forest Service wrote ATC and advised it that the contract area was within the Cape Fox selection area, that environmental considerations would change the size of the clear cut units and reduce the total volume upon final extension, that it should confine its harvest to particular areas, and that a failure to do so would result in a denial of the extension. On November 25, 1974, ATC requested a 2-year extension, indicating that as of October 31, 1974, 25 million board feet had been cut.

After July 1974 the Forest Service attempted to contact orally the president of Cape Fox several times, but got no reply. A meeting in December 1974 was held between the president of Cape Fox and the Ketchikan Area Timber Management Officer, to discuss the extension and modification of the timber sale contract. Cape Fox’s president was informed that the Devil’s Club sale area was within the Cape Fox selection area.

On December 2, 1974, a letter was sent by the Forest Supervisor to Cape Fox, that informed plaintiff that the contract probably would be extended.

On December 12, 1974, Cape Fox submitted its selection application pursuant to ANCSA, which included the 1,530 acre area authorized for cutting by the original Devil’s Club contract.

On December 23, 1974, ATC was sent a form to extend conditionally the contract for a short period to allow the environmental report and modification to be completed. No timber was to be cut until the contract was finally extended.

On December 26, 1974, Sealaska Corporation, for itself and Cape Fox, sent a letter to the Regional Forester advising that the contract purchaser had not pursued the contract diligently, that Cape Fox had selected the area, that ANCSA requires the maximum participation of natives in decisions affecting their rights and property, and that Cape Fox opposed the contract extension. The letter stated that Cape Fox opposed the extension until such time as a meeting could be held between Cape Fox and Sealaska personnel and the Forest Service to determine the merits and possible additional conditions of a contract extension.

On January 8, 1975, a letter from the Regional Forester to Sealaska Corporation stated that the purchaser had done enough to qualify for an extension and that a conditional decision to grant the extension had been made which would become final upon approval by the purchaser of the reappraisal and environmental modifications.

After meeting with the Forest Service, Sealaska withdrew its objection to the extension. Cape Fox was informed on April 8, 1975, in a letter from Sealaska, that it had withdrawn its objection. Cape Fox did not communicate in writing its disagreement with Sealaska’s position to the Forest Service until May 1976.

The contract conditionally was extended to March 31, 1975, and then again was extended conditionally to May 31, 1975. On May 2, 1975, the contract was extended to December 31, 1976. The latter extension was conditioned upon the purchaser limiting logging operations to the removal of already felled timber from specified areas until final approval of the environmental modification of the contract by the Regional Forester.

An Environmental Analysis Report concerning the Devil’s Club No. 2 timber sale contract, prepared by the Forest Service, was made final on August 15, 1975, and approved on November 12, 1975. While the environmental analysis and contract modification were being proposed, the Forest Service attempted to contact plaintiff but was unsuccessful. On June 24, 1975, a copy of the contract was sent to plaintiff, and on December 3, 1975, a meeting was held between the Forest Service and plaintiff. Further information was sent on December 12, 1975. On January 13, 1976, plaintiff’s counsel wrote to the Forest Service concerning the timber contract escrow account. None of these communications objected to the environmental modification or to the extension.

The environmental modification of the contract received final approval from the Regional Forester on November 12, 1975. A final agreement to extend and modify the contract until December 31, 1976, was executed on December 31, 1975. The final modification removed eight cutting areas, and reduced the harvest area from 1,530 acres to 700 acres of the timber within the Devil’s Club boundary. The rest of the timber within the Devil’s Club sale area remained available to Cape Fox after selection. The modification was thought to reduce the contract sale to 28.5 million board feet; subsequent calculations revealed that the volume of the sale was approximately 27.7 million board feet.

In a letter dated February 26, 1976, Cape Fox asked the Forest Service to substitute other timber areas for the Devil’s Club area under 43 U.S.C. § 1614. On March 16, 1976, ATC refused to substitute timber areas and the Forest Service advised Cape Fox that substitution under 43 U.S.C. § 1614 did not permit unilateral modification of contract boundaries.

On March 31, 1976, the Bureau of Land Management issued a decision to grant an interim conveyance to the Devil’s Club area subject to the ANCSA restriction for national forests and reservations by the United States. The conveyance inadvertently omitted the reservation required by 43 U.S.C. § 1613(c), Cape Fox prepared a written waiver of its right to object to the omission, but Cape Fox’s waiver contained a typographical error. The Bureau of Land Management refused to accept the written waiver. Further action on the decision to enter an interim conveyance halted upon the refusal of the Bureau of Land Management to accept plaintiff’s oral waiver of its objection to the omission, and plaintiff’s refusal to sign an easement agreement.

At a meeting on May 7, 1976, Cape Fox indicated it wanted to stop the sale and filed suit in Alaska district court on May 21, 1976. As of May 15, 1976, there were standing about 5 million board feet of timber remaining to be cut under the contract. A total of about 4 million additional board feet had been cut and bucked and about 3 million board feet was then in rafts. On May 6, 1977, the Forest Service notified ATC that all contract requirements had been met and the contract was closed.

Subsequent to closure of the contract, plaintiff requested administratively, and in conjunction with the proceedings before the United States District Court of Alaska, that it be allowed to exclude the fallen timber area in the Devil’s Club sale from its land selection, and to substitute, by way of exchange, other national forest lands of its own choice without the withdrawal area of a value equal to the land excluded and without restriction as to their being contiguous or compact in nature. This request was denied.

On August 4, 1978, patent covering the sale area was issued to Cape Fox. Cape Fox signed an easement agreement that permitted interim conveyance while litigation over easements continued.

Cape Fox has received $231,993.26, the total amount of stumpage proceeds due from the escrow account for proceeds of withdrawn lands.

DISPOSITION

Plaintiff’s amended petition invoked the Tucker Act jurisdiction of the Court of Claims, which now is exercised by this court. This jurisdiction now is in 28 U.S.C. § 1491(a)(1), which, in pertinent part provides:

(a)(1) The United States Claims Court shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.

Jurisdiction of plaintiff’s claim must be found in the authority conferred by “the Constitution, or any Act of Congress, or any regulation.” No contract between Cape Fox and the United States has been pleaded, and none is involved. The jurisdiction conferred by the phrase “for liquidated or unliquidated damages in cases not sounding in tort” is not relied upon by plaintiff, and that clause “has never been fully and authoritatively construed.”[3] The Court of Claims also has ruled that this phrase does not include jurisdiction over claims for breach of fiduciary duty unless there also is a statute or regulation that mandates payment of money.[4] The constitutional provisions, statutes and regulations involved in plaintiff’s claim are: the 5th amendment, the provisions of ANCSA, the provisions of the Alaska National Interest Lands Conservation Act (ANILCA)[5] applicable to disposition of proceeds of withdrawn lands, implementing regulations, and statutes and regulations applicable to extension of Forest Service timber sale contracts.

Defendant’s cross-motion challenges plaintiff’s statutory and fiduciary claims for failure to overcome the jurisdictional bar of sovereign immunity. The confusion that has arisen as to whether the Tucker Act constitutes a waiver of sovereign immunity, and the relationship of the waiver to the requirement for a money claim, has been clarified by the Supreme Court in Mitchell II.[6]

Historically, the Tucker Act has been interpreted as a waiver of sovereign immunity for the classes of claims described. If a claim falls within the terms of the Tucker Act, the United States presumptively has consented to suit. The Tucker Act, however, does not create any substantive right enforceable against the United States for money damages. A substantive right also must be found in some other source of law.[7] Every claim that is based upon the Constitution, a statute, or regulation, except for a limited authority to issue declaratory judgments or grant injunctive relief, must be for money damages against the United States.[8]

In summary, the Supreme Court described the content of 28 U.S.C. § 1491(a)(1) as follows:

Thus, for claims against the United States “founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department,” 28 U.S.C. § 1491, a court must inquire whether the source of substantive law can fairly be interpreted as mandating compensation by the Federal Government for the damages sustained. In undertaking this inquiry, a court need not find a separate waiver of sovereign immunity in the substantive provision, just as a court need not find consent to suit in “any express or implied contract with the United States.” Ibid. The Tucker Act itself provides the necessary consent.[9]

Where the statutes or regulations require compensation, consent to suit is supplied by the Tucker Act, and the separate statutes and regulations on which the claim is based need not provide a second waiver of sovereign immunity. It is not appropriate to construe such statutes or regulations in the manner appropriate to waivers of sovereign immunity.[10]

When jurisdiction is invoked by a recognized tribe or group of Indians, the relevant statutes and regulations are to be considered in the light of the undisputed existence of a general trust relationship between the United States and the Indian People. The Supreme Court noted and emphasized the dominance of “the distinctive obligation of trust incumbent upon the Government in its dealings with these dependent and sometimes exploited people.”[11] The existence of this general trust relationship, however, does not resolve the scope of the Government’s obligations.

The use or absence of the word “trust” in the relevant statute is not controlling. Where the Federal Government takes on control or supervision over tribal monies or properties, a fiduciary relationship exists with respect to such money or property that imposes a duty to account as a trustee, in the absence of a specific Congressional disclaimer, even though nothing is said expressly in the authorizing or underlying fundamental document about a trust fund, a trust, or a fiduciary connection.[12] Similarly, the timber management statutes, federal statutes governing road building and rights-of-way, and statutes governing Indian funds and government fees, and their supplemental regulations, because they contemplated monetary benefits to the Indians, implicitly imposed a fiduciary relationship upon the United States in its management of forested allotted lands that invokes the normal accountability of a trustee.[13] Conversely, even though the statute stated allotted lands were to be held “in trust,” the General Allotment Act was held to create only a limited or bare trust relationship that did not impose any duty on the Government to manage timber resources.[14]

Where Congress intended and recognized only a limited trust relationship, fiduciary obligations applicable to private trustees are not imposed upon the Government; where the money claim or the alleged fiduciary duty stems from a statute or regulation, such statute or regulation must be capable of being fairly interpreted as mandating compensation by the Federal Government for the damages sustained. The substantive right to money need not be explicitly stated but the obligation for money compensation must be clear and strong.[15]

Plaintiff’s due process and taking claims are based upon property interests provided by the ANCSA. Any liability for extension of the timber sale contract, or for violation of management standards applicable to withdrawn lands, is determined by the relevant terms of the ANCSA.

The ANCSA is comprehensive. It sets out with particularity the rights of the United States, the natives, the State, and third parties, with respect to the lands and revenues to be distributed, and established a time frame in which these rights and duties are to attach.

The ANCSA had one overriding purpose: to clear title, through Congressional action, to all lands within Alaska by settlement of all aboriginal land titles and claims. The settlement was a political decision, made as a matter of grace. Congress was not required to give the natives any compensation for the taking of aboriginal title.[16]

The ANCSA was enacted in 1971 to provide “a fair and just settlement.” It extinguished all claims to aboriginal title based on use and occupancy in Alaska. In exchange, Congress gave the Alaska Natives $962,500,000 and 40 million acres of land in fee simple. The settlement was to be in lieu of litigation, with maximum participation by natives in decisions affecting their rights and property, but “without creating a reservation system or a lengthy wardship or trusteeship.”[17]

To implement land settlement in southeastern Alaska, ANCSA as of December 18, 1971, withdrew from disposition under the public land laws all lands in townships where native villages are located (primary townships) and in contiguous or cornering townships (secondary townships), subject to valid existing rights. From withdrawn land, each village corporation was to select during the next 3-year period 23,040 acres, which were to include available land in the township in which the village is located.[18] The Secretary of the Interior is directed “immediately after selection,” to issue a patent of a surface estate of 23,040 acres to a village corporation found qualified. Prior to granting any patent to a village or regional corporation, however, the Secretary of the Interior is required to consult with the State and with the Joint Federal-State Land Use Planning Commission for Alaska and shall reserve public easements that he determines are necessary.

Prior to conveyance, lands withdrawn from the selection under the Act remain subject to the administration of the Secretaries of the Departments of Interior or Agriculture. The Secretaries’ authority to make contracts and to grant leases, permits, rights-of-way, or easements “shall not be impaired by the withdrawal.”[19] All conveyances made pursuant to ANCSA are “made subject to valid existing rights,” including contracts and leases.[20]

In 1976, the ANCSA was amended to provide for the disposition of proceeds of withdrawn lands pending conveyance of selected lands to regional or village corporations. On and after January 1, 1976, proceeds were to be deposited in an escrow account, and on conveyance of selected lands, the proceeds, together with interest, were to be paid to the appropriate corporation. In 1980, ANILCA expanded the escrow provision to make it retroactive to include proceeds derived from date of withdrawal of the lands. 

There is no provision in ANCSA that 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. Nor is there any provision that expressly authorizes the payment of money damages for mismanagement by the United States of timber or other lands after selection, or for violation by government officials of the provisions applicable to extension of timber sale contracts on selected lands. Any such fiduciary obligations, management duties or liabilities, if they exist, accordingly, must be found from construction of the language of ANCSA, and its legislative history and from the necessary implications of its objectives and policies.

In its amended complaint, plaintiff asserts that a fiduciary relationship was created by the terms of ANCSA between plaintiff and the Department of Agriculture regarding the management of a village corporation’s selected lands during the period after selection and prior to final conveyance. The motion for partial summary judgment identifies the ANCSA provisions that give content to defendant’s fiduciary and management obligations as: the provision of ANCSA that provides for withdrawal of the sale area as of December 18, 1971;[21] the provision which authorizes the Secretary of Agriculture to manage national forest lands that have been selected until conveyance;[22] and the declaration of congressional policy that the settlement should be accomplished with maximum participation by natives in decisions affecting their rights and property.[23]

Any interpretation that these provisions carry an implication that Congress created a fiduciary relationship with village corporations in the management of selected lands would be strained and contrary to the legislative history. There is no indication that Congress in its enactment of ANCSA intended a fiduciary relationship.[24]

ANCSA specifies that all lands withdrawn “shall be subject to valid existing rights,” and that the Secretary’s authority to manage the withdrawn lands prior to conveyance under applicable laws and regulations shall not be impaired by the withdrawal.

In ANCSA, it is clear that Congress intended to avoid a fiduciary relationship between Alaska natives and the United States. The policy declaration notes the Alaska natives were not to be subjected to the creation of a reservation system or lengthy wardship or trusteeship. Statutory language which would have created obligations to village corporations in the management of selected lands, of the type that plaintiff’s asserts was considered and rejected.[25]

During the progress of the settlement legislation through Congress, management of withdrawn lands for the benefit of the natives repeatedly was suggested, but that approach ultimately was rejected. It is clear Congress intended that the settlement of Alaska native claims be accomplished without the establishment of a trustee-beneficiary relationship between Alaska natives and defendant. A system Congress intentionally avoided should not be created by judicial fiat.[26] Since ANCSA does not establish a fiduciary relationship between Cape Fox and defendant, ANCSA does not mandate the monetary relief ordinarily available to a wronged beneficiary for a breach of trust.

In addition to its contention that defendant had a fiduciary duty to manage selected lands for the benefit of village corporations, plaintiff contends that the decision to extend the timber sale violated applicable Forest Service standards. The decision to extend, therefore, allegedly was arbitrary and capricious and resulted in violation of 43 U.S.C. § 1621(i).

No provision of ANCSA indicates, much less “mandates,” that money damages are provided for a departure from management standards or for a violation of the Secretary’s continued authority to make or extend contracts on withdrawn and selected lands. ANCSA does not create or imply a right to money damages for misfeasance by defendant in the administration of selected lands.

Management of selected lands for the benefit of the native corporations would be difficult and impractical. The native corporations have been permitted to over-select their entitlements.[27] Alaska native corporations selected approximately 122,600,000 acres, amounting to about three times their entitlement, and plaintiff on December 12, 1974, had selected approximately 32,000 acres in excess of its entitlement. Because of over-selection, the majority of lands selected will never be conveyed to the corporations. In such circumstances, liability for money damages for departure from management standards would be inappropriate. ANCSA, instead, in the escrow provision provides a specific method to compensate for removal of assets from selected lands.

The 1980 escrow amendment limits a native corporation to proceeds from contracts let on withdrawn lands “to proceeds actually received by the United States plus interest,” and the escrow funds are not paid over until conveyance of the lands from which the funds were derived. Plaintiff has been paid the total amount due from the escrow account, and does not suggest that defendant has breached its duties with respect to proceeds in that account.

Plaintiff contends it is entitled to more than the escrow amounts; that it is entitled to what it could have received if the timber sale had not been extended. Congress believed it was necessary to amend ANCSA so that the native corporations could have a right to receive revenues earned from withdrawn lands. Prior to the escrow amendment, selecting corporations had no right to such present economic benefits, much less a right to speculative prospective benefits. Subsequent legislation declaring the intent of an earlier statute is entitled to great weight.[28]

Extension of the timber sale contract was in accordance with the Forest Service policies and regulations. Plaintiff concedes that ANCSA authorizes the extension of a valid pre-existing timber sale contract on lands that have been selected, if the extension is done in accordance with applicable laws and regulations. Plaintiff contends, however, that extension of the Devil’s Club No. 2 sale was invalid and unlawful because, contrary to Forest Service standards, (1) ATC had failed to cut the 50 percent of the advertised timber volume prior to its application for extension, and (2) the extension granted exceeded the maximum authorized by the Forest Service Manual (FSM).

Forest Service policy applicable to an extension of a timber sale contract in existence at the time the contract was executed, is a part of the contract. The Forest Service is liable for breach of this contract commitment if it erroneously refuses to extend a timber sale eligible for extension.[29]

The FSM provision applicable to the Devil’s Club No. 2 sale was flexible and permitted an extension to be made in an appropriate case notwithstanding a failure to cut 50 percent.[30] The 50 percent guideline was not absolute. It was subject to broad exceptions for market and other developments after award of the contract and for other considerations advantageous to the United States.

Plaintiff is in error in its argument that Forest Service standards applicable to the timber sale limited extensions to a period of 1 year. The FSM in effect at the time the timber sale was executed specified no time limit for extensions,[31] and the provision in effect at the time of the extension allowed extensions of longer than 1 year “if justified in a specific situation.”[32] The contract extension ultimately approved by the Forest Service included a 2-year period beyond the December 31, 1974, expiration date of the original contract. The final extension, executed on December 31, 1975, had been preceded by three conditional extensions, lasting for periods from 3 months to 7 months each. The conditional extensions were appropriate to accommodate the requirements mandated by the environmental statement. The term of the extensions accorded with Forest Service policies then in effect; extensions could be longer than 1 year “if justified in a specific situation.”

Plaintiff asserts defendant failed to consult about the extension of the contract in violation of the requirement in ANCSA’s policy statement, 43 U.S.C. § 1601(b). That provision does not confer on the native corporations a veto power over Forest Service management of withdrawn or selected lands. The policy calls for consultation with the natives during decision-making associated with forest management under existing laws, and for consultation with native corporations and consideration of their views prior to entering into a new contract concerning withdrawn lands. Except for lands in native reserves or reservations which existed prior to ANCSA, consent of the natives is not required. No requirement for consultation directly applicable to extension of a contract predating ANCSA appears in the regulations.

The Forest Service made substantial efforts to consult with the potentially affected native corporations in connection with the Devil’s Club No. 2 sale. During the latter half of 1974, when the decision to extend began to be actively considered, the Forest Service made several unsuccessful attempts to contact the president of Cape Fox to discuss the proposed extension and modification. Prior to filing its selection on December 12, 1974, the president of Cape Fox met with the Forest Supervisor concerning the proposed extension and modification of the sale and did not indicate any objection to extension. The efforts made by the Forest Service to obtain the views of Sealaska and Cape Fox regarding the extension and modification of the Devil’s Club No. 2 contract, were continuing and reasonable.

Taking Claim

Plaintiff’s taking claim is dependent upon the nature of the property interest that accrued under ANCSA on the selection date. Plaintiff views the filing of the selection documents on December 12, 1974, as the creation of a right to immediate possession of the land, with attendant equitable and enforceable rights that are not subject to interference from third parties or from the United States.

It is clear that on the selection date Cape Fox did not acquire legal title or a right to immediate possession. Legal title under ANCSA does not vest until conveyance; the right to possession does not accrue until completion of the numerous procedural steps mandated in the statutory scheme. In the period between selection and conveyance, Congress deliberately permitted defendant’s authority to manage withdrawn lands to continue unimpaired. This authority includes the power to let new contracts and to extend existing contracts. ANCSA makes no special provision for lands that have been selected but not conveyed.

ANCSA establishes a procedure for selection and conveyance of lands to the regional and village corporations. Until those procedures are completed and the land is formally conveyed, the native corporations had a contingent interest that was subject to compliance with the settlement scheme. It was not a vested property interest eligible for compensation under the 5th amendment.

The interest not only was contingent, to some extent, over-selection made it speculative. Most of the lands selected by the regional and village corporations never will be conveyed. Further, any interest that vests on conveyance, is required to be subject to all valid existing rights, including contracts and leases.

Plaintiff argues that, upon completion of the selection process, ANCSA provides that the lands were to be conveyed “immediately”[33] and points to the federal land grant cases for the proposition that selection provided equitable and enforceable rights to the timber sale tract.[34] The land grant cases do not support plaintiff’s argument. The rights of an applicant for land from the Government depend entirely upon the statutory scheme invoked.[35]

ANCSA embodies a congressional scheme that is entirely different from the situation that was addressed by the land grant statutes. The land grant cases cited by plaintiff were involved with the Government’s power to alienate title to property so as to derogate from the rights of an applicant who had taken steps to receive a grant after entry on unoccupied, unreserved, or unappropriated lands. ANCSA is concerned with interim management by the Federal Government under ongoing authority of lands that were subject to outstanding rights and reservations. ANCSA affirmatively directs the Secretaries to manage selected lands under existing rules and regulations.

The word “immediately” in ANCSA cannot be construed as literally as plaintiff contends. ANCSA, in 43 U.S.C. § 1613(b), does not require instantaneous conveyance after selection; conveyance must be within a reasonable time within the statutory scheme.[36]

Plaintiff’s property interest acquired on the selection date was contingent and speculative. The extension of the timber sale contract was authorized under ANCSA. It did not amount to a taking of property that was compensable under the 5th amendment.[37]

Plaintiff also argues that the due process clause in the 5th amendment was violated because notice to plaintiff was inadequate. The Court of Claims consistently has held that there is no jurisdiction over claims for money based upon the Government’s alleged violation of the due process clause.[38]

CONCLUSION

The United States has waived sovereign immunity with respect to plaintiff’s claims, and this court has jurisdiction under 28 U.S.C. § 1491 (a) as to those claims. The just compensation clause of the 5th amendment was not infringed by the extension of the Devil’s Club No. 2 timber sale, and plaintiff has failed to establish any violation of statute or regulation upon which relief can be granted. Plaintiff’s motion for partial summary judgment is denied, defendant’s motion for summary judgment is allowed, and plaintiff’s petition (now complaint) will be dismissed.

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

A jury awarded several Alaska Native corporations almost $6,000,000 for harm caused by the EXXON VALDEZ oil spill. Exxon and the corporations appeal, raising numerous issues. We affirm in all respects but one: The superior court determined that the Oil Pollution Act of 1990 did not assign to the corporations certain federal claims for spill-related harm to federal lands that the corporations had selected under the Alaska Native Claims Settlement Act but that the federal government had not yet conveyed to them. Because we conclude that the Oil Pollution Act did assign these federal claims to the corporations, we hold that the superior court erred in precluding their consideration by the jury.

I. FACTS AND PROCEEDINGS

In the early morning hours of March 24, 1989, the EXXON VALDEZ, owned by the Exxon Shipping Corporation, ran aground near Bligh Reef in Prince William Sound, spilling approximately ten million gallons of crude oil owned by the Exxon Corporation. Currents and winds pushed the spilled oil in a southwesterly direction onto the shores of lands owned by several Alaska Native Corporations, including Chenega Corporation, Port Graham Corporation, and English Bay Corporation (the Corporations). Each of the Corporations is an Alaska Native Corporation organized under the Alaska Native Claims Settlement Act (ANCSA);[1] collectively, they own more than 250,000 acres of wilderness land along western Prince William Sound.

Within a month of the oil spill, the Corporations filed suit in Alaska superior court against the Exxon Shipping Corporation and Exxon Corporation (collectively, Exxon) and the Alyeska Pipeline Service Company (Alyeska). The Corporations alleged that the oil spill affected their lands and damaged coastal archeological sites containing irreplaceable historical evidence of Native people who had used and occupied these lands for thousands of years. They sought compensation on various theories of liability for damage to their real property and archeological sites and artifacts. In September 1990 the trial court entered an order holding Exxon strictly liable for damages proximately caused by the oil spill.

Also in 1990, Congress responded to the oil spill by enacting the Oil Pollution Act of 1990 (OPA 90). Although OPA 90 focuses on preventing oil spills and creates a fund to enable faster response to oil spills,[2] one section of the act, section 8301,[3] vests Alaska Native Corporations with “right, title and interest” to pursue claims arising from the EXXON VALDEZ oil spill that related to federal lands selected by the corporations but not yet conveyed to them under ANCSA.

In 1991, upon learning that the United States and State of Alaska were about to settle spill-related claims with Exxon in federal court, the Corporations intervened in the federal action, seeking injunctive relief to protect their own state-court claims from being impaired. In September 1991 the federal and state governments responded by entering into a consent decree recognizing that the Corporations retained “private claims . . . for all private harms” caused by the oil spill to OPA 90 section 8301 lands.[4]

Before trial the Corporations obtained compensation for spill damage from two alternative sources: In 1991 the Corporations filed claims for damages with the Trans-Alaska Pipeline Liability Fund (TAPL Fund or Fund); the Fund paid them $ 23,266,884 in settlement of their claims. In 1993 Exxon’s codefendant Alyeska entered into a settlement, paying the Corporations $ 5,689,079 in exchange for a release of liability.

Thereafter, the superior court dismissed the Corporations’ state punitive damages claims in deference to a federal court order creating a federal mandatory punitive damages class. The court then held a jury trial on the remaining claims. During trial and at the close of the evidence Exxon moved for a directed verdict. The court denied the motions. The jury returned a verdict totaling $ 5,915,741.87 for the Corporations.[5]

The superior court decided to offset TAPL’s and Alyeska’s pretrial payments against the jury awards. Because the offsets exceeded the jury verdict, the court entered final judgments ordering that the Corporations “take nothing” from Exxon. Exxon moved for a judgment notwithstanding the verdict, but the court denied this motion.

The Corporations appeal, and Exxon cross-appeals.

II. DISCUSSION

A. Instructional Errors

1. Standard of review

The legal sufficiency of jury instructions is a question of law to which this court applies its independent judgment.[6] A legally erroneous instruction warrants reversal only when it prejudices a party[7] — that is, when “substantial rights of the parties were affected or the error had substantial influence.”[8] 

When evidence supports a plaintiff’s theory of the case, the court must ordinarily give an instruction “consonant with the theory.”[9] Furthermore, if it appears from questions submitted by the jury to the court that the jury is confused on a legal issue and “the resolution is not apparent from an earlier instruction, the trial judge has a responsibility to give the jury the required guidance by a lucid statement of the relevant legal criteria.”[10] But so long as the jury instructions given are adequate, the trial court has broad discretion to decide upon the need for additional instructions responding to jury questions, summarizing potentially helpful statutory provisions, or describing the plaintiffs’ theory of the case.[11] Its decision in such cases is subject to review only for abuse of discretion.[12]

2. The court did not abuse its discretion in instructing on the Corporations’ theory of land damages.

The Corporations argue that the superior court erred in instructing the jury that it could award land-use damages only for loss of “actual use” of corporate lands. Citing the Restatement of Torts, they claim that they should not have been required to prove any actual lost monetary use of the damaged lands.[13] They also claim that the court erred in restricting the jury’s consideration of fair market value and in failing to instruct on their specific theory of damages. Before addressing these claims, we will briefly describe the procedural background from which they arise.

a. Background

The Corporations sought damages for the reduced market value and loss of use of their oiled and adjacent lands. They asserted several theories of liability, including trespass, private nuisance, and violation of Alaska’s strict-liability statute prohibiting release of hazardous substances.[14] The Corporations presented expert testimony at trial in support of these damages theories. To establish the value of the Corporations’ lost use, the Corporations’ experts relied on the concept of impaired rental value. They began by positing that the “highest and best use” of the lands was preservation as natural land or archeological sites. After determining the market value based on sales of comparable property, the experts converted this value into a projected annual income stream representing estimated rental value. They then multiplied this income stream by the projected number of years of impairment and discounted to present value.

This process yielded the unimpaired value of the affected lands. The experts then calculated the impaired rental value of the lands by multiplying the unimpaired value by an impairment factor derived from the ratio of soiled to unsoiled acreage. Finally, by subtracting impaired from unimpaired values, they arrived at an estimated value of lost-use damages. Exxon’s experts acknowledged that the “income stream” method of valuation is commonly used by appraisers in valuing coastal Alaska properties. Near the end of trial, in a hearing on jury instructions, the Corporations acknowledged that essentially all of the land damages they sought were temporary. They agreed to submit their land-damages claims to the jury as temporary lost-use claims rather than as claims for permanent reduction in market value. This approach was consistent with the methodology adopted by the Corporations’ experts, who relied on fair market value as a starting point for calculating annual rental value of corporate lands but did not use reduction in fair market value as a valuation component.

Despite their agreement to limit their claims for land damages to temporary lost use, the Corporations requested permission to refer in closing argument to testimony describing the lost market value of spill-affected lands belonging to other owners. They maintained that the reduced market value of nearby properties tended to support their claims of lost use as to their corporate lands. Exxon objected, contending that reduced market value was no longer a valid measure of the Corporations’ alleged land damages. But the superior court granted the Corporations’ request, ruling that each party could argue its own interpretation of the evidence.

After closing arguments, the trial court instructed the jury that the Corporations’ “first item of claimed loss is damages to real property.”[15] As to this item, the court stated, “The measure of harm to land, in the circumstances of this case, is the ‘fair rental value’ attributable to any use of the property that could have been made but for the Oil Spill.” After defining the concept of “fair rental value” as “the amount of rent that the plaintiff would receive from a fully informed renter . . . in an open rental market,” the court, in Jury Instruction No. 27, cautioned against using other measures of damage, such as impaired marketability or reduction in market value:

Plaintiffs are not asserting any of the following as a basis for any of their claims and, therefore, you may not award damages for:

1. Any alleged harm to plaintiffs’ ability or right to sell or lease any of their property, as a result of the Oil Spill;

2. Any alleged reduction in the market value of any of their properties as a result of the Oil Spill.

Neither harm to plaintiffs’ ability or right to sell or lease, nor reduction in the market value of any of their properties is a lost use for which you may award damages.

On the second day of deliberations, the jury expressed confusion concerning the Corporations’ land-damages claim. First, the jury asked for the transcribed testimony of Dr. Wilbur Mundy, an expert for the Corporations who had described their theory of damages and had estimated the lost fair rental value to their damaged lands. Shortly thereafter, apparently referring to Instruction No. 27, the jury sent the court another note, this time asking:

If “harm to [the Corporations’] ability or right to sell or lease” is not a lost use (for which we may award damages), there is then some unclarity as to what is lost use. What are [the Corporations] asserting?

Just before retiring that evening, the jury voiced similar concerns in three further questions:

Is damage to Market Value of real property actual damage to real property[?]

Can we award damages for mere loss of market value (for whatever cause) or only when actual use is lost, as a result of the Spill?

Is that what Inst. No. 27 means?

Upon learning of these questions, the Corporations proposed supplemental instructions that would inform the jury of numerous claimed uses, indicating in part that “it is not necessary to have previously engaged in each of the uses in order to recover for their loss,” and stating that although “rental value is how the law requires you to calculate the value of [the Corporations’] lost uses, harm to [their] ability or right to sell or lease their lands is evidence of the damage to the lands because of lost use.”[16]

Exxon opposed these supplemental instructions and submitted three proposed supplemental instructions of its own — one responding to each of the jury’s three questions. For the most part, Exxon’s proposed supplemental instructions simply restated information contained in the court’s original instructions. After hearing extensive argument on the issue, the trial court determined that the Corporations’ proposed supplemental instructions did not adequately explain the “component nature” of fair market value in regard to loss of use damages in Dr. Mundy’s testimony. Accordingly, the court approved Exxon’s proposed instructions but gave the Corporations one more opportunity to add language stating the relevance of fair market value under their theory of damages. The Corporations then proposed that the following sentence be added to Exxon’s supplemental instructions: ” Lost market value may be considered by you as evidence of lost or impaired use and as a factor in calculating lost rental value.” Exxon objected that this language would only confuse the jury because the Corporations’ experts had not used reduction of market value to calculate lost rental value. 

The court agreed with Exxon, rejected the Corporations’ proposed supplemental language, and elected to give Exxon’s proposed supplemental instructions without revisions. These instructions, which the court designated as Supplemental Instructions Nos. 5, 6, and 7, reminded the jury that “fair rental value” was the appropriate measure of damages for lost use of corporate lands; they again cautioned against using reduced market value as a measure of lost use; and they defined “lost use” to include any “legal and practical” use the Corporations “could have made of [their] property in the absence of the oil spill.”[17]

After receiving the supplemental instructions, the jury awarded more than $ 3.6 million to the Corporations, cumulatively, for land damages.

b. The trial court did not abuse its discretion in instructing the jury on property damages.

The Corporations contend that the supplemental jury instructions erroneously required loss of “actual use” for recovery of land damages. We disagree. As should be clear from the above background discussion, neither the original nor the supplemental instructions limited the Corporations’ lost-use claims to “actual” lost uses.

Among the original instructions, Jury Instruction No. 23 expressly provided that “the measure of damages for harm to land . . . is the ‘fair rental value’ attributable to any use of the property that could have been made but for the Oil Spill.”[18] Supplemental Instruction No. 5 echoed the original instruction, stating that, although damages based on reduction in market value were not allowed, “you may award damages measured by the fair rental value attributable to any use of the property that could have been made but for the oil spill.”[19] And Supplemental Instruction No. 6 defined “lost use” to include any use that the Corporations “could have made of [their] property in the absence of the oil spill.” Simply put, these instructions did not require that lost uses be actual uses.

The Corporations nonetheless claim that these supplemental instructions were erroneous because they “took the ‘market value’ component from the jury’s consideration, thus leaving the jury with no alternative but to believe that they could only award damages for lost ‘actual use’ by the Village Corporations.” But as we have just observed, the supplemental instructions did not state or imply that lost-use damages could only be awarded for actual uses; instead, they encompassed any potential use of land that might have been permissible. And while they also specified that the appropriate measure of damages was the fair rental value of the lost use, rather than any reduction in the lands’ market value, they did not preclude considering market value as a component in the Corporations’ calculation of fair rental value.

The Corporations’ argument blurs the distinction between “market value,” on the one hand, and “loss of market value,” “reduction in . . . market value,” and “damage to market value,” on the other. Supplemental Instructions Nos. 5 and 7 informed the jury that the Corporations were not making a claim for “damage to market value” and that the jury should not make an award for “mere loss of market value” or “damage to market value.”[20] The concept of reduced, damaged, or lost market value played no role at all in the Corporations’ calculation of rental value: original market value was the starting point for determining fair rental value; and impaired rental value was based on fair rental value and an impairment ratio, which was unrelated to the lands’ reduced market value. Hence, removing reduced market value from the picture as a basis for awarding damages did nothing to preclude consideration of original market value as a component in calculating lost rental value.

The jury’s three questions did indicate confusion as to the nature of the Corporations’ lost-use claims and the manner in which the value of lost use should be measured. But the court directly answered each of the jury’s questions with a concise, straightforward supplemental instruction that accurately restated and amplified the original jury instructions.[21] Because these instructions fully addressed and resolved the apparent confusion, we find no abuse of discretion in the trial court’s refusal to give different ones.

The Corporations also claim, however, that they were entitled to a supplemental instruction explaining their specific theory of damages because of the jury’s confusion on the issue. But the supplemental instructions that the Corporations proposed on their theory were imprecise, overly broad, and one-sided.[22] For this reason, the superior court properly rejected these proposed instructions. Moreover, the Corporations had ample opportunity to discuss their theory in detail during closing arguments. Further elaboration would have shed little additional light on the topic; and by fixing the jury’s attention narrowly and exclusively on the Corporations’ version of damages, while ignoring Exxon’s, the court might have encroached on the jury’s fact-finding function.

Although we recognize that a plaintiff is generally entitled to an instruction “consonant with the theory of [the] case if such enjoys evidentiary support,”[23] the trial court has broad discretion to determine what instructions should be given on the facts of the particular case at hand. Here, we hold that the court did not abuse its discretion in declining to submit the Corporations’ additional proposed instruction on their theory of damages. We further hold that the superior court’s supplemental instructions were not erroneous.

3. The trial court did not abuse its discretion in refusing to instruct the jury that oil is a hazardous substance.

The Corporations also argue that the trial court erred in refusing to instruct that oil is a hazardous substance, contending that the instruction was needed to cure the prejudicial effect of testimony given by Exxon’s appraiser, John D. Dorchester, Jr. But a trial court need only instruct on matters of law necessary to enable the jury to reach a verdict.[24] Given that Exxon, before trial, had conceded liability under AS 46.03.822 for unpermitted release of a hazardous substance, the statute’s inclusion of oil as a “hazardous substance” for purposes of imposing strict liability was not as a matter of law necessary to the jury’s verdict.[25] Nor did Dorchester’s testimony create a necessity.

To impeach an unfavorable damage report that Dorchester had prepared before trial and had relied on as a basis for his trial testimony, the Corporations asked Dorchester on cross-examination to admit that when he wrote his report he did not know that oil was “hazardous waste” under Alaska law. Although oil is a hazardous substance for purposes of AS 46.03.822(a)(2),[26] two other Alaska statutes dealing with hazardous substances exclude oil from the definition of “hazardous substance.”[27] Dorchester accurately responded that “two out of three” times Alaska law did not identify oil as a hazardous substance. Though acknowledging that the strict-liability law under which Exxon was liable, AS 46.03.822-.826, does identify oil as a hazardous substance, Dorchester indicated that in valuing the lost use of the Corporations’ properties he had been more concerned with the market’s perception of the hazards and toxicity of oil than with “arcane law.”

In response to this testimony, the Corporations requested a jury instruction establishing that the oil spilled by the EXXON VALDEZ was a hazardous substance as a matter of law and that Exxon was strictly liable for the damages caused by the oil spill. The trial court rejected this request, reasoning that there was no need to mention “hazardous substance” because liability under the strict-liability statute was uncontested. Instead, the court simply instructed the jury that Exxon was strictly liable for damages caused by the oil spill.

Dorchester did not speak to Exxon’s liability; he testified about damages. Moreover, he accurately characterized Alaska law and expressly acknowledged that the law under which Exxon conceded liability defines oil as a hazardous substance. Finally, in emphasizing that his primary concern was the market’s perception of the oil spill’s impact, and not “arcane law,” he essentially asserted that none of the existing legal definitions of hazardous substances had any bearing on his opinions. Under these circumstances, we hold that the lower court did not abuse its discretion in refusing to instruct that oil is a “hazardous substance.”

4. The jury instructions on the Oil Pollution Act of 1990 were erroneous.

The Corporations claim that the trial court erred by failing to instruct the jury that OPA 90[28] gave the Corporations the right to claim lost-use damages as to certain federal lands. Exxon responds that the superior court’s instructions “were consistent with applicable law and with the measure of damages instructions stipulated to by the Native Corporations.”

a. Background

The Corporations held patents for most of the oil-affected lands as to which they claimed damages, but their claims also encompassed some lands owned by the federal government. ANCSA had authorized the Corporations to select certain federal lands for ownership.[29] The selection process is quite cumbersome: about 90,000 acres of land selected by the Corporations remained in federal hands at the time of trial. The Corporations sought compensation from Exxon for injuries to these selected but not yet conveyed lands, contending that their claims were authorized under section 8301 of OPA 90, which provides:

Solely for the purpose of bringing claims that arise from the discharge of oil, the Congress confirms that all right, title, and interest of the United States in and to the lands validly selected pursuant to the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.) by Alaska Native corporations are deemed to have vested in the respective corporations as of March 23, 1989. This section shall take effect with respect to each Alaska Native corporation only upon its irrevocable election to accept an interim conveyance of such land and notice of such election has been formally transmitted to the Secretary of the Interior.[30]

Based on this provision, the Corporations proposed jury instructions stating that they held equitable title to the selected but not yet conveyed federal lands and were entitled to recover damages for all lost uses of these lands resulting from the spill. Exxon countered that OPA 90 gave the Corporations no right to claim compensation for the federal government’s lost uses of these lands, but only gave them standing to claim damages for their own lost uses. Thus, according to Exxon, to recover lost-use damages as to any of the selected but unconveyed lands, the Corporations had to prove, first, that the federal government had given them authority to use the lands and, second, that the oil spill had interfered with the authorized use. Because the Corporations had conceded that they lacked any more authority to use the selected land before its actual conveyance than the general public would have, Exxon insisted that they had suffered no compensable lost use.

The court agreed with Exxon that damages could be awarded to the Corporations only for those selected lands they could use. Accordingly, it instructed the jury that “for lands that were selected but not conveyed, plaintiffs may bring a claim for damages in this action, but they must establish that they could have used such lands and that they lost some of those uses.” The court went on to explain in another jury instruction that the law “allows the Native corporations to bring claims for selected but not conveyed lands, but it does not mean that the corporations or their shareholders could use such lands at the time of the spill or afterward except with the consent or approval of the federal government.”

The court apparently based these instructions on the portion of OPA 90’s section 8301 stating that title to the selected but not conveyed ANCSA lands was “deemed to have vested” in the Corporations “solely for the purpose of bringing claims that arise from the discharge of oil . . . .” In interpreting this language, the court relied on the September 1991 consent decree, which recognized that the Corporations retained “private claims . . . for all private harms resulting from injuries caused by the Oil Spill, to lands . . . deemed to have vested in the respective Alaska Native Corporation in accordance with the provisions of Section 8301 of the Oil Pollution Act of 1990.”[31]

b. The jury instructions dealing with the selected but unconveyed lands incorrectly interpreted OPA 90 and improperly required the Corporations to establish their own loss of a federally permitted use.

(i) OPA 90 did not merely grant standing to the Corporations to litigate damages to selected but not yet conveyed lands.

The Corporations argue that the trial court erroneously interpreted OPA 90 as merely conferring standing. They insist that OPA 90 properly should be interpreted as an assignment of a portion of the federal government’s proprietary rights in lands irrevocably selected but not yet conveyed to the Corporations.[32] Under this assignment, the Corporations contend that they may recover for the federal government’s spill-related lost uses of these selected but unconveyed lands.

Exxon responds that the opening phrase of OPA 90 section 8301’s first sentence — “solely for the purpose of bringing claims that arise from the discharge of oil”[33] — simply confers standing. We disagree. If Congress had merely intended to confer standing, it could have done so more clearly and directly with the kind of language it employs in many other statutes, where Congress provides that parties “may bring a civil action,” “may sue,” or “may commence a civil suit” under certain conditions.[34] Instead, Congress chose in OPA 90 to “confirm that all right, title, and interest of the United States . . . are deemed to have vested” in the Corporations.[35] Although this language undeniably applies “solely for the purpose of bringing claims that arise from the discharge of oil,”[36] it is not the language of standing. That Congress did not use one of its usual formulas for conferring standing suggests that it had some other purpose; the language it chose is more consistent with the conveyance of an interest in land or an assignment of a right beyond mere standing.[37]

In the superior court, Exxon relied heavily on Cape Fox Corporation v. United States[38] for the proposition that section 8301 of OPA 90 merely conferred standing. That case held in part that ANCSA corporations lack standing to assert claims against the United States for takings of lands selected but not yet conveyed.[39] Exxon argued that section 8301 was merely intended to overrule Cape Fox. But a careful reading of Cape Fox reveals otherwise.

In Cape Fox, the Cape Fox Village Corporation challenged the Forest Service’s management of certain selected but not yet conveyed lands.[40] Among the claims Cape Fox asserted was a takings claim.[41] The United States Court of Claims held that the village corporation could not raise a takings claim because its interest in the subject lands was “contingent” and “speculative” in that “most of the lands selected by the regional and village corporations never will be conveyed,” and “any interest that vests on conveyance . . . is required to be subject to all valid existing rights, including contracts and leases.”[42] Thus, implicitly, the court held that an injury in fact is a prerequisite for a valid claim.[43]

Given the underlying rationale of Cape Fox, it seems unlikely that Congress would have attempted to circumvent the case’s holding by enacting a mere standing provision. Under the reasoning in Cape Fox, if the Corporations were merely given nominal standing to pursue lost-use damages as to the unconveyed federal lands, they would still lack any actual interest in the lands that would enable them to prove an injury in fact. In other words, had Congress conferred mere standing, without an accompanying interest, it would not have altered the reality that the Corporations’ interest in the selected but unconveyed lands was too speculative to sustain a finding of actionable injury.

As evidenced by the statutes we noted above,[44] Congress does frequently confer standing without conferring a substantive interest. But those statutes are distinguishable from OPA 90; each confers standing to parties who have already sustained injuries in fact.[45] In contrast, if section 8301 were construed as a mere standing statute, it would purport to vest the Corporations with a right to sue for injuries not actually sustained. This grant of standing would be ineffectual under the rationale espoused in Cape Fox. Hence, if Congress intended section 8301 to allow the Corporations to recover damages despite Cape Fox, it would not have attained its purpose by enacting a standing provision.

Moreover, if Congress intended section 8301 only to overrule Cape Fox with respect to standing, its action would be constitutionally suspect under the reasoning of Lujan v. Defenders of Wildlife.[46] In Lujan, the United States Supreme Court considered whether Congress could create a purely procedural injury — one not based on an injury in fact — that would support standing.[47] Defenders of Wildlife had alleged that the citizen-suit provisions of the Endangered Species Act created such a procedural right.[48] That provision authorized anyone to sue to force a violating governmental body to comply with the Endangered Species Act. According to Defenders of Wildlife, the provision created a procedural right to governmental compliance; failure to comply was a “procedural injury” that would support standing.[49]

The Supreme Court rejected this argument.[50] It reasoned that a concrete injury in fact was essential under Article III’s case or controversy limits on standing.[51] Congress cannot ignore Article III’s limits, the Court held, by creating “procedural injuries” that are “abstract,” “self contained,” and otherwise independent of any injury in fact.[52] According to the Court, Congress can create legally cognizable rights out of de facto injuries; but it cannot create de jure injuries in the absence of de facto injuries.[53]

If the Corporations lack a legally cognizable interest in selected but not yet conveyed lands under Cape Fox, and thus lack a concrete injury in fact, and if section 8301 of OPA 90 does not vest them with substantive rights with respect to these lands, the statute would create the sort of impermissible “abstract” procedural injury that Lujan condemned.

Validly enacted statutes come to this court with a presumption of constitutionality.[54] Where it is reasonable to do so, we will construe a statute to avoid constitutional problems.[55] Because it would be unreasonable for Congress to adopt a statute that is without effect, we reject Exxon’s proposed reading of section 8301, and we decline to hold that the provision merely confers standing.

(ii) OPA 90 authorized the Corporations to assert the federal government’s private claims for lost use of the selected but unconveyed lands.

Exxon nevertheless suggests that if OPA 90 does more than confer standing, it should be read only to authorize the Corporations to pursue claims for permanent, not temporary, injuries to the selected but not conveyed federal lands. Under this theory, the statute creates a kind of legal fiction. It would require the courts to treat the selected lands as having been conveyed to the Corporations but, at the same time, would provide that the federal government would retain stewardship over the land and all right to use the land pending the actual conveyance. This would mean that the Corporations could not claim damages for the loss of temporary use because they had no actual right to use these lands pending the conveyance. That the Corporations abandoned their efforts to recover any permanent damages as to these lands at trial does not, according to Exxon, suggest a flaw in its proposed interpretation of section 8301; rather, it merely reflects a failure of proof grounded on the fact that the spill ended up causing no permanent damages to the selected lands.

But Exxon’s alternative theory assumes that the Corporations’ permanent interests in the selected but not yet conveyed federal lands are somehow less speculative than their temporary interests. Unless we assume that recovery for permanent injury of the selected lands would be permissible because, despite their present unconveyed status, their eventual conveyance can be predicted with enough certainty to support a finding of eventual injury in fact to the Corporations, Exxon’s alternative theory would necessarily suffer from the same flaw as its theory that section 8301 is merely a standing provision. To accept the theory, we would have to conclude that Congress meant to confer upon the Corporations the right to sue for an “abstract” injury, in the absence of any injury in fact.

In our view, Exxon’s assumption of greater certainty does not withstand scrutiny. Under ANCSA, Alaska Native corporations were allowed to purposefully “over-select” lands for conveyance to assure that they would eventually receive their full entitlement. In making their original selections, ANCSA corporations collectively overselected about 122,600,000 acres.[56] As Exxon acknowledged below, most of these lands would never be conveyed.[57]

Although OPA 90, as implemented by the BLM, greatly reduces the uncertainty regarding future conveyances by requiring that Native corporations prune overselections to five percent when making “irrevocable”[58] selections, there is no way to know exactly which selected lands ultimately will be conveyed to the Corporations. Thus, as to any given parcel of selected but unconveyed federal land, it would be as difficult for the Corporations to prove with certainty “their own” permanent injury in fact as it would be for them to prove “their own” non-permanent injury based on future lost uses.

Moreover, Exxon’s proposal to read section 8301 of OPA 90 as confirming the eventual conveyance of the selected federal lands and allowing the Corporations to recover permanent damages to these lands conflicts with the literal meaning of the statute. Section 8301 expressly uses selection, not conveyance, as the fulcrum for recovery, vesting the Corporations with “all right, title, and interest” in lands “validly selected.“[59] The wording of the statute does not restrict itself to those lands that will ultimately be conveyed. And the Corporations did in fact seek damages for injury to lands that they selected, including thousands of acres in excess of their ANCSA entitlement.

These excess lands, we believe, hold the key to understanding the intended effect of OPA 90. Because section 8301 conveys rights to the overselected lands that will never be held by the Corporations as well as to the selected lands that will, it seems fair to infer that in enacting the provision, Congress intended to convey an actionable right, rather than a fictitious future interest in the selected federal land.

The Corporations propose an interpretation of section 8301 consonant with this inference. They maintain that, with respect to all of the selected but unconveyed lands, OPA 90 simply assigns all of the federal government’s oil-spill claims to the Native corporations.

It is well established that a cause of action or claim for damages with respect to trespass or subsequent injury may be assigned without transfer of title to the underlying property.[60] Section 8301 can plausibly be read as such an assignment: Congress used the language of conveyance — “right, title, and interest” — but by using the words “solely for the purpose of bringing claims that arise from the discharge of oil,”[61] limited the conveyed interest to a cause of action, rather than to any land right. This reading is textually straightforward and would give effect to Congress’s intent that Alaska Native corporations be able to bring claims.

Before OPA 90 was enacted, the interests of ANCSA corporations in the subject lands was too speculative to serve as a basis for proof of injury or to otherwise support standing.[62] Congress sought to eliminate the uncertainty by adopting section 8301. Read in the manner that the Corporations propose, the statute would avoid the uncertainty by allowing ANCSA corporations to pursue all spill-related proprietary claims that the federal government could have pursued in its own right with respect to the selected but unconveyed lands, regardless of whether those lands ever will be conveyed.

(iii) The Lujan Decree does not foreclose the Corporations’ land-use claims.

While the Corporations’ proposed interpretation of section 8301 has much to recommend it, we must consider whether it conflicts with the “Lujan Decree” — the consent decree signed by the Native Corporations and the United States in September 1991 in Native Village of Chenega Bay et al. v. State of Alaska and United States. [63] The Lujan Decree provides, in relevant part:

[Native corporations shall have the right] to the exclusion of the Governments, to pursue private claims, other than claims for Natural Resource Damages, for all private harms resulting from injuries caused by the Oil Spill, to lands either, (a) legally owned by it; or (b) deemed to have vested in the respective Alaska Native Corporation in accordance with the provisions of [OPA 90]. [64]

The superior court accepted Exxon’s “standing” theory of section 8301 in part because of the “private claims” language included in the Lujan Decree. The court agreed with Exxon that the “private claims” mentioned in the decree must have referred to the “private” harms suffered by the Corporations themselves and did not include harms to the federal government’s “public” land.

But when we consider the “private claims” language in the context of the litigation that led up to the Lujan Decree, another meaning emerges. The Lujan Decree was the culmination of efforts by various ANCSA corporations that sought to preserve their rights to claim oil-spill damages by intervening in the federal court settlement between Exxon and the governments of the United States and Alaska. The state and federal governments were settling claims with Exxon for “natural resource damages” recoverable by the governments under various federal laws, including 33 U.S.C. § 1321(f)(5), a provision of the Clean Water Act (CWA).

This CWA provision authorized the federal and state governments to recover “on behalf of the public as trustees” for the cost of restoration, rehabilitation, and replacement of damaged or destroyed natural resources.[65] Although the CWA did not authorize Native corporations or villages to sue in the same “public” capacity,[66] affected villages managed to intervene as private parties in the federal action in part by asserting a claim for damages under a different federal statute.[67] And various affected ANCSA corporations intervened seeking damages under ANCSA itself.[68] Hence, the Lujan Decree’s reference to “private claims” merely recognizes that the federal and state governments had sued as public trustees asserting “public” claims and that their settlement with Exxon did not encompass the non-CWA claims that the intervening villages and corporations sought to assert as private parties.

So construed, the Lujan Decree does no more than preserve the status quo with respect to the Corporations’ private claims: its “private claims” language maintains neutrality as to who might pursue the kind of proprietary, or “private,” federal claims assigned to the Corporations under section 8301.[69]

Because the consent decree’s “private claims” language does not militate against interpreting section 8301 as more than a statute conferring standing, we adopt the Corporations’ proposed reading of the provision. We thus conclude that it was error to treat the statute as a “standing” provision in the jury instructions.

c. The OPA 90 jury instructions were prejudicial.

An erroneous statement of law in a jury instruction warrants reversal if it prejudices a party,[70] substantially influencing the outcome of the case.[71]

In the present case, two jury instructions reflected the incorrect view that section 8301 gave the Corporations standing to sue only for “their own” lost-use damages on the selected but unconveyed federal lands. Jury Instruction No. 25 stated:

For lands that were selected but not conveyed, plaintiffs may bring a claim for damages in this action, but they must establish that they could have used such lands and that they lost some of those uses.

Jury Instruction 26 built on this view of the Corporations’ claims, stating that the “Native corporations do not have a right to use lands that have been selected but not conveyed without the consent or approval of the federal government” and narrowly describing their rights under section 8301 as follows:

In 1990, after the Oil Spill, the Alaska Native Claims Settlement Act was amended to provide that Native corporations could elect to accept interim conveyance of selected but not yet conveyed lands by filing a notice called an irrevocable election. The law provides that, upon filing a notice of irrevocable election, “all right, title and interest in and to the lands” are deemed to have vested in the respective Native corporations as of March 23, 1989. This requirement has been met as I have previously advised you. This law allows the Native corporations to bring claims for selected but not conveyed lands, but it does not mean that the corporations or their shareholders could use such lands at the time of the spill or afterward except with the consent or approval of the federal government.

In determining what damages, if any, were suffered by the plaintiff Native corporations for selected but not conveyed lands, you must consider: (1) whether the Native corporations were permitted to use the selected but not conveyed lands for which they are asserting claims; and (2) whether the corporations suffered any loss or interruption of uses for such lands.

The jury received these instructions against an evidentiary backdrop of testimony from several corporate and former corporate officers who conceded that the federal government had not permitted any specific uses of the selected public lands and that until the lands were actually conveyed the Corporations could engage only in those recreational uses permitted the general public. By precluding any award to the Corporations based on the government’s proprietary uses and by allowing an award only for the Corporations’ own loss of federally permitted uses, the jury instructions virtually foreclosed any damage award for the selected but unconveyed lands.

Had the Corporations been allowed to claim damages for the federal government’s lost proprietary uses, as contemplated by section 8301, the result may well have been different. For the Corporations presented relevant evidence at trial tending to prove that the spill had interfered with the federal government’s preservation and other proprietary uses on the selected lands. And since the jury found that similar evidence with respect to the Corporations’ own lands warranted awarding substantial lost-use damages, we conclude that the section 8301 instructional error was prejudicial.

5. Archeology instruction: the superior court did not err in refusing to instruct the jury regarding the Corporations’ alleged property interest in archeological resources found on state land.

The Corporations’ expert archeologist, Dr. Lora Johnson, testified that various archeological sites for which the Corporations claimed damages lie both above and below the mean high tide line. On cross-examination, Dr. Johnson granted that the Corporations did not own any of the land below the mean high tide line and thus that any artifacts found there belong to the state. Following Exxon’s cross-examination, the Corporations requested that the court take judicial notice of AS 41.35.020,[72] which they contended grants them the “possession and use” of artifacts located on state lands. They asked the court to instruct the jury accordingly, but the court refused. The Corporations now argue that the court erred in failing to give their requested jury instruction and that this error precluded the jury from awarding damages for injury to their statutorily protected property rights. However, we conclude that no prejudicial error occurred.

The Corporations’ theory of damage under AS 41.35.020 has been somewhat fluid. The record reveals two potential bases for the Corporations’ claim that they were entitled to recover for damages to archeological resources below the mean high tide line. First is the theory that damage to the intertidal area damaged the Corporations’ upland sites by impairing the historical context necessary to ensure a full understanding of the portions of the archeological sites located above the mean high tide line. Second is the theory that AS 41.35.020 gives the Corporations a property right in artifacts below the mean high tide line:

Within the bundle of rights the Native corporations have, there is in addition to these common law . . . rights, some statutory basis for an interest in archaeological sites and artifacts below mean high tide. Now it may well be that Natives would have to approach the state and get a license, but it’s our view that they do have a property interest which is cognizable under the law and the court could take notice of that.

Exxon counters that AS 41.35.020 does not give the Corporations an enforceable property right to archeological resources on state-owned lands. It maintains that an award of damages to the Corporations for archeological harm below the mean high tide line would require it to pay twice for the same injury, because it has already settled with the State of Alaska the state’s claims for damages to archeological resources on state lands. We find Exxon’s arguments persuasive for several reasons.

First, we reject the Corporations’ claim to a statutorily created property right. Alaska Statute 41.35.020 expressly reserves to the state “title to all historic, prehistoric, and archeological resources situated on land owned or controlled by the state, including tideland and submerged land” and specifically “reserves to itself the exclusive right of field archeology.”[73] The statute recognizes the “cultural rights and responsibilities”[74] of aboriginal persons to possess and use certain artifacts for study and display, but only in certain limited circumstances where the state’s rights are protected.[75] Thus, while AS 41.35.020 recognizes limited cultural rights, the provision does not create a property right supporting a claim for damage to artifacts not in the Corporations’ actual possession and control.

Second, we conclude that, even if AS 41.35.020 allocates certain rights to the Corporations, Exxon’s settlement with the state precludes the Corporations from recovering for damages sustained below the mean high tide line. If the Corporations were allowed to recover under the statute for damages to archeological resources located below the mean high tide line, then Exxon would be unfairly forced to pay twice for the same injury, having already paid the state for those damages.[76]

Third, the superior court offered the Corporations an opportunity to cure any potential misunderstanding as to Dr. Johnson’s testimony. After Dr. Johnson conceded on cross-examination that the artifacts below the mean high tide line belonged to the state, the Corporations objected to the implication that they had no interest in those artifacts, requesting that Dr. Johnson be allowed to testify further as to her understanding of their interest. The court granted this request, and Dr. Johnson testified again the following day. But the Corporations failed to ask her any further questions concerning the Corporations’ interest in artifacts below the mean high tide line. Having failed to avail themselves of the opportunity to cure any error that might have occurred during Dr. Johnson’s cross-examination, the Corporations may not now claim that they were denied an opportunity to present their theory of statutory rights to the archeological resources below the mean high tide line.

For all of these reasons, we conclude that the trial court did not err in refusing to instruct the jury on AS 41.35.020.

B. The Superior Court Did Not Err in Allowing a Set-Off Against the Corporations’ Jury Award for the TAPL Fund.

The jury awarded the Corporations damages of almost $ 6,000,000. Before the verdicts were entered, the Trans-Alaska Pipeline Liability Fund (the Fund) made settlement payments of approximately $ 23,000,000 to the Corporations for losses they sustained from the EXXON VALDEZ oil spill. The superior court set off the Fund settlement payment amounts against the jury award and, accordingly, entered judgments that the Corporations would take nothing from the verdict. The Corporations argue that the court erred in reducing the jury awards by the amount of the Fund settlement payments.

In general, a court will not reduce a tortfeasor’s liability to a victim when the victim receives compensation from a collateral source.[77] On the other hand, payments made to the victim from non-collateral sources — such as the tortfeasor’s insurance company or a joint tortfeasor — reduce the tortfeasor’s liability.[78]

In adopting the collateral source rule in Ridgeway v. North Star Terminal & Stevedoring Co., this court explained that a tort-feasor is not entitled to have his liability reduced merely because plaintiff was fortunate enough to have received compensation for his injuries or expenses from a collateral source . . . .[79]

A collateral source is “a source [that] is entirely independent of and collateral to a wrongdoer who is legally responsible for the injuries.”[80] Thus, while a victim’s own insurance or a charity may be a collateral source,[81] a tortfeasor’s insurance is not, since it is actually paid for by the tortfeasor.[82]

The collateral source rule thus embodies an attempt to reconcile two competing principles of tort law:[83] (1) that an injured party should recover no more than the amount needed to make the party whole[84] and (2) that the tortfeasor should be held accountable for all damages resulting from the tort.[85] An injured party who is compensated by both a collateral source and the tortfeasor for the same injury obtains a double recovery; but a tortfeasor who is credited for compensation paid to the victim from a collateral source escapes accountability. The common-law collateral source rule resolves this conflict in favor of the injured party: it allows the victim a double recovery if the alternative would be to allow the tortfeasor to escape liability.[86] Alaska Statute 09.17.070 modifies this common-law rule by shifting the balance from the victim toward the tortfeasor. The statute allows the court to reduce an injured party’s jury award to reflect unsubrogated collateral source payments in some circumstances.[87] By doing so, AS 09.17.070 limits the circumstances in which a victim can receive double recovery, while enhancing the chances that a tortfeasor may not be held fully accountable.

The Corporations contend that AS 09.17.070 did not permit the superior court to subtract the Fund settlement payments from the jury awards, because the Fund settlement was a “collateral source payment” and was subrogated. Exxon responds that the Fund is not a collateral source and that, therefore, neither the collateral source rule nor AS 09.17.070 bars reduction. We agree with Exxon.[88]

The Fund was created by 43 U.S.C. § 1653(c) and is underwritten by a fee of five cents per barrel assessed on all oil shipped through the Trans-Alaska Pipeline.[89] The owners of the oil pay the fee.[90] In the event of a spill, the Fund, the owner of the spilling vessel, and the vessel’s operator are strictly liable for the resulting damages in varying amounts: the owner and operator are jointly and severally liable for the first $ 14,000,000 in damages, and the Fund is liable for the balance, up to a $ 100,000,000 limit.[91] In In re Glacier Bay, the Ninth Circuit clarified how 43 U.S.C. § 1653 operates:

[The Act establishing the Fund] is a comprehensive liability scheme . . . . [The Act’s] strict liability provision ensures that . . . oil spill victims receive prompt compensation without resort to prolonged litigation . . . . [The Act includes a] subrogation section, allowing, for example, the Fund to seek reimbursement of its strict liability contribution from the owner in the event that owner negligence caused the spill. . . .

. . . After an oil spill, innocent victims receive prompt compensation. Then, the parties involved with the transportation of the spilled oil and the Fund litigate fault. Ultimately, the costs of the spill are borne by the responsible party.[92]

Following the EXXON VALDEZ spill, the Fund paid the Corporations approximately $ 23,000,000 in settlement of their claims. Pursuant to the settlement agreement, the Corporations released the Fund from further liability and assigned to it all rights that they had against any other party for damages arising out of the spill to the extent of the Fund’s initial payment. The Fund in turn sued Exxon, asserting its statutory subrogation rights under 43 U.S.C. § 1653(c)(3) and its right as assignee of the Corporations’ claims.

The Corporations maintain that, unlike a tortfeasor’s insurer, the Fund has no duty to defend, hold harmless, or indemnify Exxon. Thus they suggest that the Fund is independent of Exxon. Furthermore, they point out that the Fund was established by Congress “for the benefit of oil spill victims, not oil companies.” Accordingly, the Corporations liken the Fund to “victims‘ insurance” and argue that it should be considered a collateral source. Because the Fund has reimbursement rights against Exxon, the Corporations maintain that the Fund is a subrogated collateral source and that its payments to the Corporations therefore do not qualify for a set off under the collateral source rule.

But the Corporations are mistaken in reasoning that the Fund’s commitment to the goal of aiding oil-spill victims renders it “entirely independent of”[93] Exxon or justifies likening it to an insurance policy owned by Exxon’s victims. Exxon and the Fund are co-obligors: by law, they were both strictly liable for the spill; Exxon was liable for the first $ 14,000,000 in damages, and the Fund was liable for $ 86,000,000 in additional damages.[94] Moreover, the Fund’s entitlement to reimbursement from Exxon did not arise from a subrogation agreement with the Corporations. Instead, it arose under federal law as a result of the federally created relationship between the Fund and Exxon.[95] This, then, is not a situation in which denying a set off is necessary to prevent the wrongdoer from escaping accountability.

To the contrary, if we were to consider the Fund a subrogated collateral source, we would not only enable the Corporations to receive a double recovery, but also leave Exxon exposed to double payment — once to the Corporations in damages and again to the Fund in reimbursement of its settlement payments to the Corporations for the same damages. The collateral source rule certainly does not dictate such a result.

Accordingly, we hold that the trial court properly subtracted the Corporations’ $ 23,000,000 Fund settlement from their $ 6,000,000 jury verdict.[96]

C. Exxon’s Cross-Appeal

1. The superior court did not err in denying Exxon’s motions for directed verdict and for judgment notwithstanding the verdicts on the Corporations’ claims for damages to their lands.

On cross-appeal, Exxon argues that the trial court erred in denying its motions for directed verdict and judgment not withstanding the verdicts on the Corporations’ land-damages claims because the Corporations failed to present evidence that any economic use of their property was lost and because they failed to establish any reasonable measure for determining lost-use damages.

a. Preservation is a compensable lost use.

The parties generally agree that the proper measure of damages for injuries to corporate lands is the value of the Corporations’ lost use; their disagreement on damages focuses on what constitutes a lost use and how its value must be measured. The Corporations claim that they used their lands for their “pristine value” and “natural bounty” and that the spill impaired this use. Viewing the Corporations’ preservation of the lands in wilderness status as a non-use, Exxon rejoins that their use is not compensable.

Exxon cites numerous cases to support its contention that the Corporations may only recover for lost uses of their lands that are pecuniary in nature. But, at most, these cases stand for the proposition that a landowner may not recover lost-use damages for uses that are speculative.[97] For example, Exxon relies on City of Los Angeles v. Ricards.[98] But Ricards did not hold that a use must be pecuniary before it can be compensated. In Ricards, the city temporarily impaired access to property that a landowner held solely for “speculation and investment appreciation.”[99] In reversing an award of damages for the impairment, the California Supreme Court simply held that the landowner had failed to show any potential use that the city’s actions might have impaired.[100] In contrast, here the Corporations presented evidence that they held their property for preservation, that this use of the land had value, and that Exxon’s intrusion on the land temporarily impaired this value.

We are not convinced that lost-use damages should be limited to commercial uses. Black’s Law Dictionary defines “use value” as “the value established by the usefulness of an object and not its value for sale or exchange.”[101] Nothing in this definition restricts use value to those values derived from economic uses. To the contrary, the definition’s explicit rejection of “sale or exchange” value implicitly acknowledges that property may have cognizable uses that are not commercial.[102]

The Corporations assert that by preserving large tracts of their lands they enable their shareholders to practice and maintain their cultures and their tradition of subsistence hunting and fishing. As Congress recognized in enacting the Alaska National Interest Lands Conservation Act (ANILCA), “the continuation of the opportunity for subsistence uses . . . by Alaska Natives on Native lands is essential to Native physical, economic, traditional, and cultural existence . . . .”[103] By impairing the lands’ preservation use, Exxon injured the Corporations’ right and duty to hold the lands in their natural state for the benefit of shareholders.

Moreover, in an era marked by worldwide population explosion, an emerging global economy, and industrial development reaching into virtually every corner of the earth, it hardly seems unrealistic to recognize the value of preserving wilderness as a valid use in itself, quite apart from any incidental benefit conservation might have in promoting subsistence living and cultural survival. For example, in United States v. 117,763.00 Acres of Land in Imperial County, California, a federal court recognized that the fact that there is no proof of a market for a particular kind of property does not permit [the defendant] to take useful property for nothing . . . .”[104] We, too, conclude that lost-use damages may be awarded for the tortious impairment of non-economic uses such as preservation.[105]

b. Reasonable basis for measuring lost preservation-use damages

This conclusion leads us to inquire whether the evidence in this case sufficed to prove lost preservation-use damages. “On review of motions for directed verdict or for judgment notwithstanding the verdict, [our role] is not to weigh conflicting evidence or judge the credibility of witnesses, but is rather to determine whether the evidence, when viewed in the light most favorable to the nonmoving party, is such that reasonable [jurors] could not differ in their judgment.”[106]

As we mentioned in describing Exxon’s damages argument, the Corporations’ experts calculated their lost-use estimates by comparing hypothetical income streams for the Corporations’ lands, impaired and unimpaired. They derived the income streams by taking as a fair rental value a percentage of the lands’ fair market value. Exxon challenges the Corporations’ application of this methodology, contending that owners of vacant and unused land are entitled only to what a renter might actually pay to use the land in a real-world market and “not some hypothetical, pipedream rental rate.”[107] Exxon argues that the Corporations’ methodology “bore no relation to what an actual renter would have paid to lease the property.” Thus, according to Exxon, the Corporations failed to provide the jury with a reasonable, market-based estimate of fair rent.

But Exxon overlooks the point that the Corporations are not seeking damages for lost use of unused lands. They are seeking damages because the oil spill impaired their ability to preserve the land as it was.

In 117,763.00 Acres, one of the cases Exxon cites to support its claim of insufficient lost-use evidence, the court rejected the defendant’s valuation method, which was based on a percentage of the purported market value of the land.[108] But, in doing so, the court recognized that “where property . . . has a substantial use value but is not commonly traded,” owners may prove lost-use damages by nonstandard methods.[109] Specifically, the court observed that in such cases compensation for lost use may be calculated based on a percentage of the land’s market value.[110] The court ruled the percentage-of-market-value method inappropriate in the case before it only because it found that the desert land for which damages were being sought “had no proved use except as a gunnery range” and that that was not a “substantial use.”[111]

In our view 117,763.00 Acres supports the proposition that when wilderness lands are shown to have substantial use value in their natural state, impairment of that use is compensable, and the value of the lost use may be proved by expert testimony expressing damages as a percentage of the land’s market value. We thus conclude that the Corporations’ calculation of lost rental value based on a percentage of the underlying market value of the property was an appropriate method for determining damages.[112] This method “provided the jury with a ‘reasonable basis’ for computing the award.”[113] The evidence in the record, when viewed in the light most favorable to the Corporations, “is such that reasonable persons could differ in their judgment as to” the fact, and amount, of damages.[114]

The Corporations’ experts described preservation as a desirable, valuable use of corporate lands; they testified that preservation required intact ecological systems with biological diversity. Other witnesses testified that the oil persisted on the land for a period of time, as did cleanup crews. The Corporations also presented expert testimony that these invasions impaired the value of the lands and their use. Dr. Hayden Green, the Corporations’ expert who calculated the impaired value for the first three years following the spill, specifically depicted how these intrusions affected the preservation use of the land.[115]

Indeed, Exxon’s own expert, Dorchester, relied on similar methodology to calculate lost-use value for some of the affected parcels; this evidence in itself might suffice to permit a reasonable person to conclude that the spill had caused compensable lost-use damages.[116]

Viewing the evidence in the light most favorable to the non-moving party,[117] we conclude that the trial court correctly left this issue to the jury. We therefore affirm the trial court’s denial of Exxon’s motions for directed verdict and judgment notwithstanding the verdicts regarding land damages.

2. The superior court did not err in denying Exxon’s motion for a directed verdict or for judgment notwithstanding the verdicts on the Corporations’ archeological resources claims.

a. Background

In its cross-appeal, Exxon asserts that the trial court erred in refusing to grant its motion for a directed verdict or for a judgment notwithstanding the verdicts on the Corporations’ archeological resources claims. Exxon asserts that the Corporations presented no evidence of actual physical harm to their archeological sites from the oil spill. Exxon also argues that the Corporations’ lost-confidentiality theory of damages is legally untenable.

The Corporations respond that they did present evidence of actual physical damage as a result of the spill and cleanup. They further argue that they presented evidence of foreseeable future harm to their archeological sites as a result of the loss of the sites’ confidentiality.

In support of their archeological damages claims, the Corporations presented the testimony of two archeologists, Dr. Lora Johnson and Dr. Jack Lobdell. They described two basic types of damage to the sites: (1) loss of confidentiality and (2) “impacts.” According to Dr. Johnson, the Corporations traditionally leave archeologically significant sites alone. Dr. Johnson stated that the Corporations’ philosophy was that “you don’t want to collect things, you don’t want to change things, you want to basically keep it intact as much as possible.” According to Drs. Johnson and Lobdell, the Corporations kept the location of these sites confidential out of fear that the sites would be changed — either by people visiting and inadvertently changing the sites or by vandals and looters deliberately damaging the sites. These experts also testified that the confidentiality of the sites was lost when Exxon moved oil workers into the area to clean up the spill. They feared that the workers, having learned the locations of various sites, would return to damage or loot them.

The other element of the Corporations’ archeological damages claims flowed from “impacts” to the sites. According to the Corporations’ experts, anything that moved an artifact was potentially problematic because the artifact’s “archeological context” is important in reconstructing the history of a site. These kinds of impacts included: cleanup workers walking over intertidal and uplands sites; artifacts being washed into the water with hoses during the cleanup effort; destruction of sites by vandalism; and inadvertent pickup and disposal of artifacts by workers’ use of “tar mats” or “Sorbent cloths.” In addition, the experts viewed the mere presence of oil as harmful — in part because oil contamination of a wooden artifact might preclude or complicate accurate dating.

Dr. Johnson believed that nothing could be done to restore the sites to their pre-spill condition. She thus concluded that in order to mitigate the damage to the sites and remedy the loss of confidentiality, the archeological context of the affected sites should be fully explored and documented. Specifically, she proposed surveying and excavating the sites, collecting and curating artifacts, and publishing scholarly papers to document this work; she also proposed monitoring the sites on an interim basis to ensure site integrity until the project was completed. The estimated total cost of the plan was $ 29.5 million, with completion estimated to take approximately twenty-three years.

In response to the Corporations’ expert archeological testimony, Exxon attempted to establish that the location of the sites was not confidential and, consequently, that there was no lost confidentiality. According to Exxon, a number of the sites were frequent stops for campers, fishermen, and tourists. In addition, Exxon maintains that many of the less traveled sites had been identified in archeological texts readily available to the public.

b. The Corporations presented sufficient evidence of actual physical damage to archeologically significant sites on their lands to support the jury’s verdict.

Exxon maintains that the only proof the Corporations adduced of actual physical damage to their archeological resources was evidence indicating that a line of graffiti had been added to a wall of the Old Chenega Village Schoolhouse. Exxon also maintains that the Corporations were unable to connect this line of graffiti to the spill or to the cleanup, as the schoolhouse was a “favorite camping site” even before the spill and was not a site that was kept confidential. Moreover, Exxon claims, there was no evidence that this additional line of graffiti damaged the site, because the schoolhouse was already extensively defaced.

Exxon dismisses the remainder of the Corporations’ evidence of physical damage as mere conjecture. Specifically, it maintains that the Corporations’ experts speculated that shore-side deposits of artifacts “probably” reside in the vicinity of known archeological sites. The experts presumed, according to Exxon, that since the intertidal areas near these known upland sites were oiled, any related shore-side deposits also must have been oiled. According to Exxon, the experts further speculated that “oiling was tantamount to damage.” Exxon claims that there were only three archeological resources — all owned by Chenega — that might have been oiled. Exxon insists that none was actually damaged by the oil. Exxon further insists that in addition to failing to demonstrate any damages to their sites, the Corporations failed to offer any evidence of a measure of damages appropriate for the alleged archeological harm.

But these tend to construe the record in Exxon’s favor and minimize evidence of injuries that the Corporations claim to have suffered. For purposes of reviewing the denial of a directed verdict or judgment notwithstanding the verdict, we must view the evidence in the light most favorable to the Corporations.[118] The Corporations claimed that their sites were damaged by cleanup workers walking across them and by cleanup activities that may have moved, picked up, or washed away artifacts. Although the Corporations’ evidence on these points could certainly have been clearer, there was at least some evidence of damage to specific sites and artifacts, from which reasonable jurors could have inferred that other similar damage occurred. Altogether, because our review of the record persuades us that the Corporations presented substantial evidence indicating that at least some sites and some artifacts were actually physically injured, we conclude that Exxon has failed to demonstrate that the evidence at trial was insufficient as a matter of law to support an award for physical damage.

c. The Corporations’ claim for loss-of-confidentiality damages is also legally sufficient.

Exxon next challenges as deficient the Corporations’ loss-of-confidentiality theory of damages, which Exxon describes as the “real basis” for the Corporations’ archeological damages claim. Exxon advances several arguments to support its position. It argues that it owed the Corporations no duty of confidentiality because disclosing the location of the sites was necessary to ensure that cleanup workers did not inadvertently damage them. But Exxon incorrectly defines the duty at issue: the duty to transport its oil safely. While the loss of confidentiality resulting from cleanup efforts may indeed have been inevitable once the spill occurred, Exxon was strictly liable for all foreseeable consequences of the spill — avoidable or inevitable.[119]

Next, Exxon argues that the location of the sites was not confidential. It points out that a number of the sites were listed in various publications. But the Corporations’ experts testified that there is a qualitative difference between listing sites in obscure publications and physically exposing the sites to cleanup workers. This evidence of incremental loss created a factual dispute for the jury.

Exxon further contends that if the loss of confidentiality of the Corporations’ sites results in any future harm, that harm would come in the form of theft or vandalism. Exxon insists that such criminal acts would be superseding causes that would preclude the spill from being considered a proximate cause of the future injury. Thus, Exxon reasons, the Corporations have necessarily failed to meet their burden of proving that the spill is a proximate cause of their future injuries.

But Exxon’s theory of superseding causation misperceives the Corporations’ alleged injury. The alleged injury is not the future vandalism itself, but the loss of confidentiality in the Corporations’ archeological sites and the fear of vandalism that this loss engenders. The Corporations presented substantial expert testimony indicating that their fear of future harm is reasonable and that the most reasonable response to this fear is to take immediate action to salvage what they can of their sites. Under this theory, the Corporations’ injury is complete without a single incident of vandalism occurring.

In any event, even assuming that Exxon is correct in characterizing the Corporations’ damages as harm resulting from future acts of vandalism rather than the Corporations’ reasonable fear of future vandalism, the oft-cited maxim that criminal acts are superseding causes is merely a rule of thumb. While a criminal act will ordinarily break the chain of causation, this general rule does not excuse the factfinder from examining the foreseeability of the intervening act. In Williford v. L.J. Carr Investments, Inc., we discussed the theory of superseding causes:

Superseding cause is a variant of the doctrine of proximate cause. This court has explained that the doctrine of superseding cause will relieve a negligent actor of liability only in exceptional cases. We have explained that an action of a third person which intervenes to injure the plaintiff will shield a negligent defendant only where[,] after the event and looking back from the harm to the actor’s negligent conduct, it appears to the court highly extraordinary that it should have brought about the harm. Thus, an act will not constitute a superseding cause where, though unforeseeable by the original negligent actor, it does not appear in retrospect to have been highly extraordinary.[120]

Applying this test, we believe that reasonable jurors might be justified in concluding that Exxon’s spill would be a proximate cause of the future vandalism that the Corporations fear.

Exxon finally contends that the Corporations offered nothing more than speculation and conjecture in support of the theory that their sites would suffer from future vandalism as a result of the oil spill. Exxon argues that speculation and conjecture are not a sufficient basis for an award of damages. Specifically, Exxon points out that during the five years between the spill and the trial, none of the Corporations’ sites had been vandalized. Positing that “the state of facts as they exist at the time of trial is the basis for any prospective damages claim,” Exxon insists that there was insufficient evidence of future harm to present this question to the jury.

But we conclude that the Corporations presented adequate evidence to support their loss-of-confidentiality claim. In City of Fairbanks v. Nesbett, we discussed the nature of proof required to establish future damages:

The law does not permit a recovery of damages which is merely speculative or conjectural. . . . As a general rule, it refuses to allow a plaintiff damages relating to the future consequences of a tortious injury unless the proofs establish with reasonable probability the nature and extent of those consequences. . . . There must be some reasonable basis upon which a jury may estimate with a fair degree of certainty the probable loss which plaintiff will sustain in order to enable it to make an intelligent determination of the extent of this loss. . . . The burden is upon the plaintiff to furnish such proof. If he fails in this respect, the jury cannot supply the omission by speculation or conjecture. . . . The fact that there is some uncertainty as to plaintiff’s damage or the fact that the damage is very difficult to measure will not preclude a jury from determining its value.[121]

The Corporations presented expert testimony that “there is a high likelihood that [oil-spill workers] will be coming back to different sites.” The testimony indicated that the archeologists’ concerns were based on the fact that oil-spill workers were taken out to the sites and were given information regarding how to identify sites. The archeologists’ concerns were also based on incidents of vandalism that occurred during the cleanup. While the Corporations’ theory is not based on hard scientific evidence, neither is it based on rank speculation or conjecture. The expert testimony of Drs. Johnson and Lobdell provides a reasonable basis for the Corporations’ loss-of-confidentiality claims. Whether the Corporations’ fears of vandalism were reasonable is a factual issue that was properly left to the jury.

III. CONCLUSION

Because we conclude that the superior court’s OPA 90 instructions erroneously precluded the jury from awarding the Corporations damages for the selected but not yet conveyed federal lands, we REVERSE with respect to the Corporations’ OPA 90 claims, but we AFFIRM in all other respects. We therefore REMAND this case for a retrial limited to the OPA 90 issues.