Ogle v. Salamatof Native Ass’n

[*1325] ORDER

Boy Dexter Ogle (“Ogle”) sues Salamatof Native Association, Inc. (“Salamatof”) in equity for specific performance of a federal statutory duty to reconvey land claimed pursuant to 43 U.S.C. § 1613(c). In addition, Ogle seeks damages based upon supplemental state claims. This Court has jurisdiction over the reconveyance claim pursuant to 28 U.S.C. § 1331 and jurisdiction over the supplemental claims pursuant to 28 U.S.C. § 1367.[1]

[**2] Salamatof seeks dismissal pursuant to 43 U.S.C. § 1632(b). Docket Nos. 15 & 21. Salamatof contends that Ogle failed to commence this action within one year of the filing of the map of boundaries, and thereby lost his right to sue. Id. The motion is opposed. Docket No. 18. Ogle argues that he was not given sufficient notice of Salamatof’s actions regarding his claim to satisfy due process. Id. Both parties request oral argument. Docket Nos. 22 & 23. However, the record has been fully developed and oral argument would not be helpful. D. Ak. LR 7.1(i); see United States v. Cheely, 814 F. Supp. 1430, 1436 n.2 (D. Alaska 1992).

The Court has reviewed the record and concludes that the motion to dismiss should be denied in part and granted in part. Ogle has no viable state claim against Salamatof and his supplemental claims will be dismissed. On the other hand, the existing record leaves open the possibility that Ogle did not receive notice of certain significant events in a manner conforming to due process. If, after a full development of the facts, Ogle establishes that due process was violated, he may be entitled to a judicial remedy. Constitutional due process assures [**3] Ogle of notice at two significant stages: First, when the village corporation is preparing its map and considering claims for reconveyance; and second, after the village corporation has considered the claims for reconveyance and proceeds to file its map with the Department of the Interior. The filing of the map effectively announces the village corporation’s ruling on claims of reconveyance. Further proceedings will be necessary to determine whether Ogle had actual, inquiry, or constructive notice at each of these crucial [*1326] points in the determination of his claim. See 58 Am. Jur. 2d, Notice §§ 5-6, 9, & 15 (1989).[2]

[**4] Actual notice has been said to be of two kinds: (1) express, which includes direct information, and (2) implied, which is inferred from the fact that the person charged had means of knowledge which it was his duty to use. 58 Am. Jur. 2d, Notice § 6. Thus, notice is regarded in law as actual where the person sought to be charged therewith either knows of the existence of the particular facts in question or is conscious of having the means of knowing it, even though such means may not be employed by him or her. See Perry v. O’Donnell, 749 F.2d 1346, 1351 (9th Cir. 1984). Similar to implied actual notice is constructive notice. 58 Am. Jur. 2d, Notice § 7. Constructive notice is a legal inference or a legal presumption of notice which may not be disputed or controverted. See Butte & Superior Copper Co. v. Clark-Montana Realty Co., 249 U.S. 12, 63 L. Ed. 447, 39 S. Ct. 231 (1919); Hotch v. United States, 14 Alaska 594, 212 F.2d 280 (9th Cir. 1954). The importance of the classification of notice of this character arises from the fact that constructive notice is a legal inference, while implied actual notice is an inference of fact. 58 Am. Jur. 2d, Notice § 7. Finally, the [**5] closely related concept of inquiry notice exists where a person has knowledge of such facts as would lead a fair and prudent person using ordinary care to make further inquiries. Shacket v. Roger Smith Aircraft Sales, Inc., 651 F. Supp. 675, 690 (N.D. Ill. 1986), aff’d, 841 F.2d 166 (7th Cir. 1988); see discussion at 58 Am. Jur. 2d, Notice §§ 6 & 15 (creating a third type of notice which resembles both constructive and actual notice). Under this theory, a person who fails to diligently inquire is charged with knowledge that would have been required through such inquiry. 58 Am. Jur. 2d, Notice, § 15.

DISCUSSION

I. Background

Central to this case is the Fifth Amendment to the United States Constitution, which provides in relevant part: “No person shall . . . be deprived . . . of property, without due process of law; . . . ‘ This provision acts as a limitation on actions by the United States Government.[3] [**7] The phrase “due process of law,” which also occurs in the Fourteenth Amendment to the Constitution as a limitation on actions by the states, encompasses two general ideas: the protection of substantive rights (substantive due process) and the protection [**6] of procedural fairness (procedural due process). See Zinermon v. Burch, 494 U.S. 113, 125-28, 108 L. Ed. 2d 100, 110 S. Ct. 975 (1990).[4] [**8] [*1327] In this case, we are concerned with procedural due process. Specifically, where it is assumed for the purposes of argument that an Alaska Native has used a parcel of land as a primary residence, a primary place of business, or a subsistence campsite, thereby earning a right to reconveyance under 43 U.S.C. § 1613(c)(1), the Court must determine what process is due before that right to reconveyance may be extinguished.[5]

In context, due process normally requires notice and an opportunity to be heard. Thus, where any proceeding will finally determine a person’s property rights, he is entitled to notice reasonably calculated, under all of the circumstances, to apprise him of the pendency of the proceeding and an opportunity to present his claim or objections. Tulsa Professional Collection Services, Inc. v. Pope, 485 U.S. 478, 484, 99 L. Ed. 2d 565, 108 S. Ct. 1340 (1988). What is “reasonable notice” depends upon all the circumstances and requires a delicate balancing of the people’s interest in a final resolution of disputes and the claimant’s right to protect his property. Id.; see also Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 77 L. Ed. 2d 180, 103 S. Ct. 2706 (1983); Texaco, Inc. v. Short, [**9] 454 U.S. 516, 70 L. Ed. 2d 738, 102 S. Ct. 781 (1982); Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 94 L. Ed. 865, 70 S. Ct. 652 (1950). Actual notice is required as a precondition to a proceeding which will adversely affect the property interests of any party if its name and address are reasonably ascertainable. Tulsa, 485 U.S. at 485. In determining whether the name and address of a claimant is “reasonably ascertainable,” the party having the duty to give notice need only exercise “reasonably diligent efforts” to discover the claim. Id.

In order to resolve this case, we must therefore decide a number of questions: First, whether Salamatof’s role in evaluating and determining section 14(c) claims makes it a federal actor for the purposes of Fifth Amendment analysis; second, whether Salamatof’s actions in developing a map addressing and resolving section 14(c) claims constitutes a “proceeding” which requires notice; third, if a proceeding is contemplated, whether the village corporations must afford section 14(c) claimants, like Ogle, a particular type of “hearing” in order to evaluate their 14(c) claims;[6] and fourth, whether additional [*1328] notice should have [**10] been given to Ogle of the village’s filing of the map and the need to seek judicial review within a definite period or forever be barred from any judicial relief. In order to address these issues in context, it is necessary to review the applicable provisions of the Alaska Native Claims Settlement Act (“ANCSA”).

[**11] The United States Congress enacted ANCSA in 1971. 43 U.S.C. §§ 1601-1629(a) (1995). ANCSA extinguished the Native people of Alaska’s claims to aboriginal land title, and in return federal lands and other consideration were transferred to Alaska Natives. In order to accomplish this purpose, the United States Congress created regional and village corporations that were intended to receive the lands conveyed.

Included in ANCSA are a number of provisions designed to protect the rights of those with existing rights to land conveyed under ANCSA. Existing leases, homesteads, mining claims, and similar sites are protected. See 43 U.S.C. §§ 1613(g), 1621(b), 1621(c). Another provision, commonly known as section 14(c), requires the conveyance of lands by the village corporation to individuals on the basis of their occupancy for a particular purpose rather than their common law property rights. See 43 U.S.C. § 1613(c). The uses deemed sufficient to give rise to such a claim include claims that the property was a primary place of residence, a primary place of business, or a subsistence campsite. 43 U.S.C. § 1613(c)(1).

To facilitate the transfer of section 14(c) properties to lawful [**12] claimants, the Secretary of the Interior enacted regulations requiring the survey of the lands claimed by the villages. See 43 C.F.R. § 2650.5-4. This regulation requires village corporations to file a map delineating its land selections, including tracts that are to be reconveyed under section 14(c). Id. The map is then used by the Bureau of Land Management (“BLM”) as a “plan of survey.” Section 2650.5-4 provides, in pertinent part:

§ 2650.5-4 Village Surveys.
(a) Only the exterior boundaries of contiguous entitlements for each village corporation will be surveyed . . .

(b) Surveys will be made within the village corporation selections to delineate those tracts required by law to be conveyed by the village corporations pursuant to section 14(c) of the Act.

(c) (1) The boundaries of the tracts described in paragraph (b) of this section shall be posted on the ground and shown on a map which has been approved in writing by the affected village corporation and submitted to the Bureau of Land Management. Conflicts arising among potential transferees identified in section 14(c) of the Act, or between the village corporation and such transferees will [**13] be resolved prior to submission of the map.

(2) . . . No surveys shall begin prior to final written approval of the map by the village corporation and the Bureau of Land Management. After such written approval, the map will constitute a plan of survey. No further changes will be made to accommodate additional section 14(c) transferees, and no additional survey work desired by the village corporation or municipality within the area covered by the plan of survey or immediately adjacent thereto will be performed by the Secretary.

43 C.F.R. § 2650.5-4.

The BLM accepted and approved the filing of Salamatof’s map of boundaries on May 14, 1993. Section 1632(b) provides:

Decisions made by a Village Corporation to reconvey land under section 14(c) of the Alaska Native Claims Settlement Act [43 U.S.C.A. § 1613(c)] shall not be subject to judicial review unless such action is initiated before a court of competent jurisdiction [*1329] within one year after the date of the filing of the map of boundaries as provided for in regulations promulgated by the Secretary.

43 U.S.C. § 1632(b). It is undisputed that the § 1632(b) limitations period expired on May 14, 1994, and that [**14] Ogle did not make a claim under section 14(c) within the allotted one year period. However, 43 C.F.R. § 2650.5-4 indicates that the determination of section 14(c) claims is a matter left to the village corporations to resolve.[7] In order to resolve disputes, the village must establish a procedure to identify potential 14(c) claimants and consider their claims. Section 14(c) therefore contemplates that the village corporations will provide reasonable notice to 14(c) claimants both prior to and after filing their map of boundaries with the Department of the Interior. Notice prior to the filing is necessary in order to assure that bona fide claims are recognized in the map, and notice subsequent to the filing of the map is necessary to insure that those whose claims are denied are alerted to their right to judicial review.

[**15] Unfortunately, neither ANCSA nor the regulations provide the village with explicit directions regarding the types of notice that must be given by village corporations.[8] [**16] Prior to filing their map of boundaries, Salamatof published notice of its reconveyance program under section 14(c) in The Peninsula Clarion for fourteen days and in the Tundra Times in five consecutive weekly issues in 1986. In addition, Salamatof gave a similar notice to its shareholders in a newsletter that it published. After filing its map of boundaries with the Department of the Interior, Salamatof made no further efforts to notify potential 14(c) claimants, though the Department of the Interior adopted a policy whereby it published notice for a single day in two [*1330] newspapers, and also sent notice for posting in the Kenai Post Office.[9]

II. Constitutional Due Process

Congress is generally under no obligation to create a property right in any private individual or group. Where, however, Congress creates rights, as it did in the case of 14(c) claimants, the government must make reasonable efforts to alert the possessor of such rights to the risk of loss. The administration of Native land claims is a power traditionally exclusively reserved to the government. When Congress and the Secretary delegated to Salamatof initial responsibility to resolve section 14(c) claims, it became an instrument of the federal government, obligated under the [**17] Fifth Amendment to give adequate notice before depriving anyone of his or her property rights. See Arnett v. Kennedy, 416 U.S. 134, 167, 40 L. Ed. 2d 15, 94 S. Ct. 1633 (1974), reh’g denied, 417 U.S. 977, 41 L. Ed. 2d 1148, 94 S. Ct. 3187 (1974); see also Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541, 84 L. Ed. 2d 494, 105 S. Ct. 1487 (1985); McGraw v. City of Huntington Beach, 882 F.2d 384, 389 (9th Cir. 1989); Dorr v. Butte County, 795 F.2d 875, 877 (9th Cir. 1986). In Loudermill, the Court stated:

The point is straightforward: the Due Process Clause provides that certain substantive rights — life, liberty, and property — cannot be deprived except pursuant to constitutionally adequate procedures. . . . The right to due process ‘is conferred not by legislative grace, but by constitutional guarantee. While the legislature may elect not to confer a property interest . . . it may not constitutionally authorize the deprivation of such an interest, once conferred, without appropriate procedural safeguards.’

470 U.S. at 541. In the absence of proceedings that comport with due process, the property rights that Congress granted to 14(c) [**18] claimants through ANCSA would be rendered meaningless.

Prior to an action which will affect an interest in property protected by the Due Process Clause of the Fourteenth Amendment, a government actor must provide “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane, 339 U.S. at 314. Elaborating upon the principle announced in Mullane, the Supreme Court has more recently held that notice by mail or other means as certain to ensure actual notice is a minimum constitutional precondition to a proceeding which will adversely affect the liberty or property interests of any party, if the party’s name and address are reasonably ascertainable. Mennonite, 462 U.S. at 800.

The Court cannot yet determine whether Ogle’s identity as a 14(c) claimant was known or reasonably ascertainable. Further briefing from the parties will be required to determine whether “reasonably diligent efforts” would have identified Ogle and revealed his claim. Tulsa, 485 U.S. at 485. Ogle’s repeated notification to Salamatof of his ongoing allotment dispute with the [**19] BLM may be relevant to this analysis.[10] Both parties should analyze whether Ogle was provided with actual notice, constructive notice, or notice of facts that would have put him on inquiry notice of the need to file his claim. If the Department of the Interior gave Ogle actual notice of the [*1331] official filing date and the running of the one-year statute of limitations, then the village’s failure to give actual notice may have been harmless error.

Particularly extensive efforts to provide effective notice may often be required when the government [**20] is aware of a party’s inexperience or incompetence. See, e.g., Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 13-15, 56 L. Ed. 2d 30, 98 S. Ct. 1554 (1978).[11] Phrased another way, “When notice is a person’s due, process which is a mere gesture is not due process.” Mullane, 339 U.S. at 315. Questions as to the form that notice must take are distinct from the question of whether service must be personal, by mail, or by publication.

[**21] III. Salamatof had no Fiduciary or Trust Duty to Ogle

Section 14(c) requires village corporations, upon receipt of a patent, to “first convey” to any Native or non-Native occupants title to the tract they occupied on December 18, 1971. 43 U.S.C. § 1613(c). Ogle claims that this created a trust, under which village corporations received and held title to section 14(c) lands for the benefit of section 14(c) claimants. Ogle ignores the ruling of the court in Lee v. United States, 629 F. Supp. 721, 728 (D. Alaska 1985). In Lee, the court stated that ANCSA’s language, structure, and legislative history all demonstrate that Congress intended to provide a “comprehensive and final resolution of all issues relating to Native land claims in Alaska.” Lee, 629 F. Supp. at 728. The court expressly found that common law remedies, such as a constructive trust theory, were nothing more than an attempt to alter the comprehensive legislative scheme adopted by Congress. Id. at 729. Ogle and Salamatof are adversaries, not fiduciaries. The court’s holding in Lee makes clear that a trust will not be created by implication.

IV. There is no Monetary Claim for [**22] Breach of 14(c)

Ogle also contends that even if the statute of limitations is determined to constitute an absolute bar to Ogle’s section 14(c) claim, Ogle still has a cause of action against Salamatof for the wrongful loss of his section 14(c) claim. Ogle’s argument runs contrary to the express purpose and intent of ANCSA to promptly resolve claims without litigation. 43 U.S.C. § 1601. Again, turning to Lee and its stance on the creation of common law surrounding ANCSA, this cause of action does not fill a gap, but rather, creates a new and unwarranted cause of action. This Court refuses to imply or create a cause of action on the part of a 14(c) claimant against an ANCSA corporation.

CONCLUSION

Ideally, potential section 14(c) claimants would be notified of their property interest by the village corporation during the village corporation’s survey of its lands. The 14(c) claimant and the village corporation would seek informal resolution of the claim, and if resolution at the village level was unsuccessful, seek judicial review in the short time permitted after filing the map of boundaries. Salamatof’s filing of the map of boundaries is most properly viewed as the [**23]  village’s last and final decision regarding pending claims. The filing would properly trigger petitions for judicial review by anyone whose claim was not honored. Salamatof is an Alaska business organized for profit and is not an impartial agency. There is no basis for according a special level of deference, such as applying an arbitrary and capricious standard, to decisions made by the village corporation. Judicial review must be de novo.

 [*1332]  Thus, there are two points at which notice is required to comport with due process: (1) at the time the village is finalizing its land selections and preparing its map, so that claims may be made and if possible informally resolved; and (2) after filing its map in order to trigger the statute of limitations. The Court cannot yet decide whether Ogle received the notice that was due from Salamatof prior to its filing the map of boundaries with the Department of the Interior. Nor can the Court yet determine whether the notice afforded by the Department of the Interior alerted Ogle to the running of the one-year statute of limitations. At a minimum, the Court will require further briefing from the parties. It is possible that a factual hearing will [**24]  eventually be necessary.

IT IS THEREFORE ORDERED:

The motion to dismiss at Docket No. 15 is DENIED IN PART AND GRANTED IN PART. Ogle’s state claims are dismissed with prejudice. His federal due process claims require further proceedings. The requests for oral argument at Docket Nos. 22 & 23 are DENIED.

DATED at Anchorage, Alaska this 2nd day of November, 1995.

HONORABLE JAMES K. SINGLETON

United States District Court Judge 

 

Chickaloon-Moose Creek Native Ass’n v. Norton

CANBY, Circuit Judge:

The Alaska Native Claims Settlement Act of 1971 (“ANCSA”), 43 U.S.C. § 1601 et seq., extinguished all aboriginal title in Alaska and, in partial compensation, provided for Native villages to select specified acreages of land from the public domain. Id. at § 1611. The selection process ran into difficulties in the most populous area of Alaska, Cook Inlet. In 1976, the Department of the Interior (“Interior”) and Cook Inlet Region, Inc. (CIRI), an Alaska Native regional corporation, entered into an agreement, known as the Deficiency Agreement, to govern the conveyance of lands from the federal government to CIRI for reconveyance to Alaska Native village corporations within the Region. The agreement described lands eligible for conveyance in two separate appendices to the agreement: Appendix A and Appendix C. The primary issue in this case is whether, under the terms of the agreement and the statute implementing it, all of the lands listed in Appendix A must be transferred before any of the lands in Appendix C will be made available, even though the villages have selected some Appendix C lands in preference to Appendix A lands to fulfill their statutory entitlement. We conclude, as did Interior and the district court, that the Deficiency Agreement requires the Appendix A lands to be exhausted before any Appendix C lands may be transferred to CIRI for reconveyance to the villages. Because the Appendix A lands are sufficient to satisfy the villages’ acreage entitlements, the villages will be required to accept some tracts of Appendix A lands in place of Appendix C lands that they selected as being more desirable.

I.

The Deficiency Agreement arose out of a compromise intended to resolve severe difficulties that had arisen with regard to Village land selections in the Cook Inlet region. In order to provide a context for understanding the dispute over the meaning of the Agreement, it is necessary to recite some of the developments leading up to its adoption.

A. The Alaska Native Claims Settlement Act

ANCSA extinguished all aboriginal title and claims of aboriginal title to lands in Alaska in exchange for the distribution of $ 962,500,000 and over forty million acres of land to Alaska Natives. See 43 U.S.C. §§ 1603(b), 1605(a), 1611. The Act provided for the establishment under state law of regional and village corporations in which Alaska Natives would be the shareholders. See 43 U.S.C. § 1607. The village plaintiffs in this case, Chickaloon-Moose Creek Native Association, Inc., Knikatnu, Inc., Ninilchik Native Association, Inc., Seldovia Native Association, Inc., and Tyonek Native Corporation, (collectively “the Villages”) are all village corporations within the region of a regional corporation known as Cook Inlet Region, Inc. (“CIRI”).

ANCSA did not convey lands directly to village or regional corporations, but provided a method for accomplishing transfer. Among other things, ANCSA required Interior to withdraw all available public lands in the township in which any Native Village was located, as well as all public lands in two concentric rings of townships around the Village. See 43 U.S.C. § 1610(a). It was from this withdrawn land that it was contemplated that the villages could select the acreages to which ANCSA entitled them.

B. The Villages’ Section 12(a) Selections

Cook Inlet region, where the plaintiff Villages are located, lies along Alaska’s south-central coast and is one of the most heavily populated areas of the state. Considerable segments of the land near the Villages are either owned by third parties or are under water. As a consequence, the withdrawals mandated by ANCSA immediately surrounding the Villages were not sufficient to satisfy the Villages’ entitlement. Accordingly, Interior made compensatory “deficiency withdrawals” from the nearest unreserved, vacant and unappropriated lands. See 43 U.S.C. § 1610(a)(3).

Section 12(a) of ANCSA authorized each village to select its designated number of acres from withdrawn lands.[1] These are known as “section 12(a) selections.” ANCSA required that each Village’s section 12(a) selections must be “contiguous and in reasonably compact tracts,” and “shall be . . . wherever feasible, in units of not less than 1,280 acres.” 43 U.S.C. § 1611(a)(2).

In addition to lands received by the Villages pursuant to section 12(a), section 12(b) of the statute required Interior to allocate additional lands to each regional corporation on the basis of Native population until the total acreage from sections 12(a) and 12(b) equaled 22 million acres. See 43 U.S.C. § 1611(b). The regional corporations receiving section 12(b) lands were required to distribute those lands among its constituent village corporations “on an equitable basis.” See id. Villages’ selection of lands to be received from a regional corporation pursuant to this mandate were known as “section 12(b) selections.”

As the district court noted, the process of land withdrawal and selection did not go smoothly in the Cook Inlet region. The Act required the Villages to make their 12(a) selections by December 18, 1974, but as the deadline approached, the eligibility of two villages in CIRI’s region, Salamatoff and Alexander Creek, was unresolved. Due to this uncertainty, Interior did not designate land withdrawals for each village specifically, but withdrew a single block of land for all five plaintiff Villages along with Salamatoff and Alexander Creek. This maneuver forced the Villages to compete for the same land. To resolve this potential conflict, the Villages decided to make and prioritize their selections of various tracts of land in a series of rounds, in a manner roughly similar to that of major league sports teams drafting players. Each of the plaintiff Villages thus ended the process with a list, in order of preference, of lands they elected to receive, often in scattered locations within the withdrawn lands.[2]

Because the Villages divided up their entitlements by selecting lands in rounds, there was a concern that their section 12(a) selections would not satisfy the Act’s requirements that these selections be compact and contiguous, and in minimum sizes of 1,280 acres. Prior to filing their selections, however, Bureau of Land Management (BLM) officials assured the Villages that even if their individual selections did not meet these requirements of the Act, they would be accepted as long as their selections as a whole formed a compact and contiguous block. Relying on those assurances, the Villages filed their section 12(a) selections with Interior on December 17, 1974. The Villages also filed blanket section 12(b) selections on all lands withdrawn for their benefit pending a determination of the specific land to be allocated to CIRI under that section.

C. The Terms and Conditions Agreement

The selection process posed problems for the Villages, the federal government, and the State of Alaska. The Villages complained that Interior’s deficiency withdrawals involved much lower quality land than the original lands surrounding their villages that were deemed ineligible for withdrawal. The Villages accordingly filed a lawsuit, Cook Inlet v. Kleppe, No. 75-2232, challenging the validity of the deficiency withdrawals. The federal government was concerned because it desired some of the lands selected by the Villages in their 12(a) selection draft for the creation of a national park around Lake Clark.[3] As a result, Interior, the State of Alaska, and CIRI entered into a series of negotiations that resulted in an agreement entitled “Terms and Conditions for Land Consolidation and Management in the Cook Inlet Area” (“Terms and Conditions”).

The Terms and Conditions were essentially a large land trade between Alaska, the federal government and CIRI. CIRI acquired certain oil producing lands in the Kenai peninsula, the state acquired certain lands, and Interior received some of the lands it wanted in order to create Lake Clark National Park. To accomplish the latter purpose, the Villages (who were not actually parties to the Terms and Conditions) would have to give up their section 12(a) claims to lands surrounding Lake Clark in exchange for other selections. In addition, the federal government wanted to leave open the possibility of expanding the Lake Clark Park into the Chinitna Peninsula, an area that includes many of the Villages’ desired section 12(a) selections that are the subject of this appeal (i.e., they are Appendix C lands in the Deficiency Agreement). Interior therefore wanted to make sure that the only peninsular lands conveyed to the Villages were lands chosen through their section 12(a) selections, not those designated pursuant to section 12(b). Paragraph VII.A of the Terms and Conditions therefore required CIRI’s section 12(b) allocations to come from specified lands, which did not include Chinitna Peninsula. As for the Villages’ 12(a) land selections located in Chinitna, paragraph VII.B of the agreement allowed for the future possibility of a land swap between the Villages and Interior whereby Interior would give the Villages other lands in exchange for their 12(a) selections in Chinitna. Paragraph VIII.A stated that such a trade could not occur without the consent of the affected villages.

The Terms and Conditions required congressional authorization, and Congress ratified the agreement through Pub. L. No. 94-204, 89 Stat. 1145, 43 U.S.C. § 1611 (note) (1976). The legislation, however, contained three preconditions that had to be met before the agreement could go into effect: (1) the State of Alaska had to convey certain lands to the United States for possible reconveyance to CIRI, (2) the Villages had to withdraw their appeal in Cook Inlet v. Kleppe, and (3) the Villages had to relinquish their selections of certain lands around Lake Clark so that Interior could obtain its lands for the park. (The selections identified for relinquishment by the Villages were near Lake Clark, and must be distinguished from the Chinitna Peninsula selections that were identified for a possible future trade in paragraph VII.B.) The three conditions were fulfilled in 1978 and the Terms and Conditions then went into effect.

The Terms and Conditions bear on the present dispute because the Villages contend that the Deficiency Agreement was intended to be consistent with the Terms and Conditions, and that the Terms and Conditions clearly recognized the Villages’ section 12(a) selections in the Chinitna Peninsula and provided that the federal government might later acquire those tracts only by consent of the Villages. The Villages also argue that, if they had known that they were not to receive their 12(a) selections now being denied to them, they would not have fulfilled the statutory conditions — dismissal of the lawsuit and relinquishment of the Lake Clark selections — that permitted the Terms and Conditions to go into effect.

D. Rejection of the Villages’ 12(a) selections

In May 1976, BLM completed its evaluation of the 12(a) selections submitted by the Villages in 1974 and, in a series of decisions, rejected many of the Villages’ selections. The main reason for most of the rejections was that the Villages’ selections did not meet the “compact and contiguous” requirement or the 1,280-acre minimum size requirement of ANCSA. Other selections were rejected because the land was either not authorized for selection or was reserved for selection by other villages. These decisions caused alarm and anger among the Villages, who had been told previously by BLM that their failure to meet the compact and contiguous requirements would not hinder approval of their selections. The rejections had potentially grave consequences for the Villages because ANCSA contained no provisions for allowing the resubmission of new selections after the 1974 statutory deadline. Thus, the Villages were faced with the prospect of losing a significant portion of their statutory land entitlements. They pursued an administrative appeal of the BLM decision.

The rejection decisions also upset several officials at Interior who had negotiated the Terms and Conditions. They feared that the Villages, in light of the rejections of their selections, would no longer agree to meet the preconditions of the Terms and Conditions, and that as a result, Interior would not be able to obtain the lands necessary for the creation of Lake Clark National Park.

E. The Deficiency Agreement

A flurry of communication followed BLM’s rejections of the Village selections, and BLM ultimately secured a remand of its appealed rejections so that a negotiated solution could be reached. The ultimate result of the negotiations was the Deficiency Agreement between CIRI and Interior. Although the Villages were highly interested in the negotiations, they were not parties to the Agreement. The Agreement contemplated transfer of withdrawn lands from the federal government to CIRI, for retransfer to the Villages. The Agreement, in most relevant part, provides:

A. The Secretary shall, subject to valid existing rights, convey, as soon as reasonably possible, the surface and subsurface estate in all public lands described in Appendix A to CIRI.

B. 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 agreement is attached as Appendix B to this agreement and which agreement may be modified by the parties thereto.

C. To the extent the lands conveyed pursuant to paragraph A when added to lands otherwise heretofore received or to be received by such Village Corporations are insufficient to satisfy their statutory entitlement, the Secretary shall, for the purpose stated in paragraph B, convey subject to valid existing rights to Cook Inlet Region, Inc., such additional lands from Appendix C as are necessary to fulfill such entitlement, except to the extent conveyances of such land are inconsistent with the requirements of [the Terms and Conditions statute] and this paragraph C. Conveyances by the Secretary under this paragraph C shall be made from the lands therein listed in Appendix C and in the order therein listed until the requirements of this subsection are met.
* * * *

L. If the provisions of [the Terms and Conditions statute] take effect, the following lands, which are also described in Appendix C to this agreement, shall only be conveyed to CIRI where there are Section 12(a) selections on file with the Bureau of Land Management, December 18, 1974, within such lands or where the provisions of [the Terms and Conditions Statute] permit conveyance.
* * * *

(ii) lands . . . generally known as the Chinitna Peninsula . . . .

Deficiency Agreement (emphasis added).

The agreement between CIRI and the Villages referred to in paragraph B was entitled “12(a) Conveyance Agreement.” It provided that, once CIRI received land from the federal government, it would distribute that land to the Villages in the order in which they had made their section 12(a) selections. In other words, the Villages’ previous selection by rounds would govern the manner in which they would receive their land from CIRI. Interior was not a party to this conveyance agreement.

In order to permit the Deficiency Agreement to be carried out, Congress enacted Pub. L. No. 94-456, 90 Stat. 1935, 43 U.S.C. § 1611 note (1976). Among other things, it stated:

(a) The Secretary is authorized to convey lands under application for selection by Village Corporations within Cook Inlet Region to the Cook Inlet Region, Incorporated, for reconveyance by the Region to such Village Corporations. Such lands shall be conveyed as partial satisfaction of the statutory entitlement of such Village Corporations of lands withdrawn pursuant to [ANCSA]. . . . For the purposes of counting acres received in computing statutory entitlement, the Secretary shall count the number of acres or acre selections surrendered by Village Corporations in any exchange for any other lands or selections.

Id., at § 4.

F. The Present Dispute

In accordance with their § 12(a) Conveyance Agreement with CIRI, the Villages believed that under the Deficiency Agreement, they would receive their lands in the same order and priority as they had made in their round of 12(a) selections. Although many of the Villages’ 12(a) selections involved lands listed in Appendix A of the Deficiency Agreement, others of their 12(a) selections involved lands listed in Appendix C of the agreement.

In 1982, after CIRI had conveyed the Villages’ higher priority 12(a) selections contained in Appendix A, it requested that Interior convey the land next on the list of the Villages 12(a) selection priorities, so that it could reconvey it to the Villages. These lands, comprising approximately 29,000 acres of the Chinitna Peninsula, are listed in Appendix C of the Deficiency Agreement and are the subject of the current dispute.

Initially, at least some responsible Interior officials believed that Interior could convey the land according to paragraphs B and L of the Deficiency Agreement, because those lands were next on the list of the Villages 12(a) selection priorities. Interior conducted further review over the course of several years, and finally, in 1991, it formally notified CIRI that it was not entitled to receive the lands in question because they were contained in Appendix C and there was land remaining in the Appendix A group. CIRI protested, and Interior’s position was upheld by an opinion of the Solicitor in 1994 that was adopted by the Assistant Secretary for Lands and Minerals Management. Because there is no dispute today that the lands described in Appendix A are sufficient in quantity to provide all the acreage to which the Villages are entitled under section 12(a) and section 12(b), Interior’s interpretation of the Deficiency Agreement means that the Villages will receive none of their selections of Appendix C lands — notably those in the Chinitna Peninsula.

The dispute was brought to the attention of Congress, which authorized CIRI and the Villages to bring an action in the District Court for the District of Alaska to contest Interior’s ruling that CIRI and the Villages would receive no lands listed in Appendix C of the Deficiency Agreement. Omnibus Parks and Public Lands Management Act of 1996, Pub. L. No. 104-333, § 1034, 110 Stat. 4093, 4240 (1996), as amended by Pub. L. No. 105-83, § 121, 111 Stat. 1543 (1997). The Act provided that, “if litigation is commenced, at the court trial, any party may introduce any relevant evidence bearing on the interpretation of the 1976 agreement.” Id.

CIRI and the Villages both sued, and the district court consolidated the cases. The district court denied the parties’ cross-motions for summary judgment, stating that clauses of the Agreement appeared to conflict regarding whether land from Appendix C could be conveyed before exhaustion of the Appendix A lands. The court accordingly ordered trial to proceed for the purpose of examining extrinsic evidence in order to ascertain the intended meaning of the Agreement. Following an eight-day bench trial in which many of the participants in the drafting of the Deficiency Agreement testified, the district court ruled that the language of the Agreement was unambiguous and that, according to its plain meaning, Interior could convey lands from Appendix C only if the lands from Appendix A proved insufficient to meet the Villages’ statutory entitlements. Because the lands from Appendix A were sufficient to meet those entitlements, the district court rejected the Villages’ claims and ruled in favor of the government. The Villages and CIRI now appeal.

II.

A. Standard of Review

Federal law governs the interpretation of contracts entered pursuant to federal law where the federal government is a party. See O’Neill v. United States, 50 F.3d 677, 682 (9th Cir. 1995). The determination whether a contract is ambiguous is a question of law that we review de novo, see id., but we review only for clear error the district court’s underlying findings of fact. See DP Aviation v. Smiths Indus. Aerospace & Def. Sys., Ltd., 268 F.3d 829, 836 (9th Cir. 2001).

Interior argues that, because it is the Agency responsible for administering ANCSA, we should defer to its interpretation of contracts made under ANCSA if the interpretation is reasonable. It is true that we have held that Interior’s interpretations of ANCSA are entitled to deference that carries more weight than the canon of construction that ambiguous statutes are to be interpreted in favor of Native Americans. See, e.g., Williams v. Babbitt, 115 F.3d 657, 663 n.5 (9th Cir. 1997); Seldovia Native Ass’n, Inc. v. Lujan, 904 F.2d 1335, 1342 (9th Cir. 1990) (applying Chevron deference to Interior’s interpretation of ANCSA). Here, however, Interior is not interpreting ANCSA but a separate agreement entered into by CIRI and Interior. Although ANCSA may have provided the context for the agreement, the Deficiency Agreement neither calls for Interior to interpret ANCSA in any way nor to use its expertise in its understanding of that statute. In addition, as an interested party to the Deficiency Agreement that stands to gain or lose depending on the outcome of this litigation, the agency should not be accorded any deference. See Transohio Sav. Bank v. Director, Office of Thrift Supervision, 296 U.S. App. D.C. 231, 967 F.2d 598, 614 (D.C. Cir. 1992). Thus, we need not defer to Interior’s interpretation of the Deficiency Agreement.

B. The Deficiency Agreement

1. The Plain Language

The primary issue in this case is whether the Deficiency Agreement requires that land conveyances from the federal government to CIRI must come from Appendix A before any can come from Appendix C or, alternatively, whether it requires that conveyances to CIRI must be made in the order of the Villages’ 12(a) selection priorities regardless of whether those lands are contained in Appendix A or Appendix C. The Villages do not appear to argue that their interpretation of the Deficiency Agreement is the only reasonable interpretation, but instead argue that the contract is ambiguous. They then argue that we should follow the canon of construction that ambiguous terms in statutes and treaties concerning Native Americans, including Native Alaskans, should be construed in their favor. See United States v. Gila Valley Irrigation Dist., 31 F.3d 1428, 1438 (9th Cir. 1994) (explaining the canon); but see United States v. Atlantic Richfield Co., 612 F.2d 1132, 1139 (9th Cir. 1980) (rule of favorable construction may operate with less force in modern day when Natives are represented by illustrious counsel).

We conclude that the unambiguous language of the Deficiency Agreement precludes the conveyance of Appendix C lands if the lands conveyed in Appendix A are sufficient in quantity to satisfy the acreage entitlements of the Villages. We are unable to construe in any other manner the provision that lands in Appendix C can be conveyed “to the extent the lands conveyed pursuant to paragraph A when added to lands otherwise heretofore received by such Village Corporations are insufficient to satisfy their statutory entitlement . . . .” We also agree with the district court that the evidence presented by the parties does not indicate a mutual intent contrary to the plain meaning of the Deficiency Agreement.[4]

2. “Statutory Entitlement”

The Villages argue that paragraph C’s language indicating that Appendix C lands would be conveyed only if Appendix A lands were “insufficient to satisfy their statutory entitlement” is ambiguous because the term “statutory entitlement” could refer either (1) to the Villages’ entitlement under ANCSA to a specified quantity of acreage or (2) to the Villages’ entitlement to receive their 12(a) selections in the order that they made them. Here, again, we find no ambiguity; the Agreement clearly uses “statutory entitlement” as in (1) above. Section D of the Agreement provides:

For the purposes of counting acres received in computing statutory entitlement under paragraphs B and C the Secretary shall count the number of acres surrendered by Village Corporations in any exchange for any other lands or selection rights, not the number of acres received in such exchange.

Deficiency Agreement, § D. This passage makes sense only if “statutory entitlement” refers to the total number of acres allowed a particular Village. Virtually the same language was repeated in the implementing act passed by Congress four days after the Deficiency Agreement was concluded. Pub. L. No. 94-456, § 4(a). Moreover, ANCSA itself refers to “acreage” or “number of acres” to which a village is “entitled.” See, e.g., 43 U.S.C. §§ 1611(a) and (c), 1613(a). Interior’s regulations do the same. See, e.g., 43 C.F.R. §§ 2650.5-1(b), 2651.1, 2651.4(a).

There is another difficulty with the Villages’ interpretation of “statutory entitlement” to mean the Villages’ section 12(a) selections rather than a maximum acreage. Because of uncertainties regarding the availability of some of the withdrawn land, the Villages were permitted to overselect. If their selections as made are their entitlement, then their entitlement exceeds the total allowable acreage under ANCSA. In addition, the Villages are allowed to change their order of priorities, which means that the selections involve considerable uncertainty prior to actual conveyance. See Seldovia Native Ass’n, Inc. v. United States, 144 F.3d 769, 781-82 (Fed. Cir. 1998). For both literal and practical reasons, therefore, we reject the Villages’ contention concerning the meaning of “statutory entitlement.”

3. Paragraph B

The Villages’ most forceful argument concerns the apparent inconsistency between paragraphs B and C of the Deficiency Agreement. Paragraph B requires CIRI to convey land to the Villages pursuant to the attached 12(a) Conveyance Agreement between CIRI and the Villages. That agreement specifies that land will be conveyed in the order that the section 12(a) selections were made by the Villages. Yet that goal cannot be accomplished: Paragraph C requires the Villages to forego their Appendix C selections because there is land remaining in Appendix A which they can select.

Although this contention has its appeal, the inconsistency between paragraphs B and C is more apparent than real. First, at the time (1976) that the Deficiency Agreement was entered, it was entirely possible, even likely, that the Appendix A lands would not be sufficient to fulfill the Villages’ section 12(a) entitlements. Alexander Creek, which was later found ineligible, was seeking to qualify as a village. A large block of so-called state “Mental Health Lands” that had been selected by the Villages was believed to be unavailable for conveyance; that view prevailed until this court decided to the contrary in 1988. See Tyonek Native Corp. v. Sec’y of the Interior, 836 F.2d 1237 (9th Cir. 1988). If these contingencies had been resolved a different way, the Appendix A lands would have been insufficient and the Villages would have been able to pursue their selections in Appendix C (although not in the order they chose).

There are additional reasons that compel us to read the Deficiency Agreement as Interior does: that is, as an agreement between CIRI and Interior that determines, in paragraphs A and C, what land can be conveyed to CIRI and under what circumstances. The attached agreement between CIRI and the Villages, in that view, does not bind the government. The first reason was noted by the district court: paragraph B describes the attached agreement as one between CIRI and the Villages, to which the federal government is not a party. The agreement is “attached,” not incorporated. Moreover, paragraph B states that the agreement between CIRI and the Villages “may be modified by the parties thereto.” It is not a reasonable construction of the Deficiency Agreement that an attached agreement to which the federal government is not a party, and which can be changed without the government’s participation, would bind the government.

Our view is supported by testimony of several of the Deficiency Agreement’s negotiators that they believed that paragraph B governed only the relationship between CIRI and the Villages. Federal negotiators testified that they believed that paragraphs A and C, not paragraph B, set out the operational mechanism for land distribution to CIRI. That distribution scheme necessarily controlled to the extent of its terms the distribution to the Villages because CIRI could not convey what it did not receive from the federal government. The negotiators expected, therefore, that in case of a conflict between the paragraph C priorities and the Villages’ original 12(a) selection priorities, paragraph C would control. Indeed, federal negotiators testified that they were not shown the Conveyance Agreement until late in the Deficiency Agreement’s drafting process, and were not concerned particularly with its contents because it related only to the disposition of land after the federal government conveyed it according to the terms of paragraph A and, if necessary, paragraph C. This testimony is consistent with much other evidence of the negotiations. The district court found the negotiators’ testimony persuasive in supporting the plain language of paragraph C, and we see no reason to disagree.

Moreover, paragraph C of the Deficiency Agreement provides that, if Appendix C lands must be conveyed (because Appendix A lands are insufficient to fulfill the Villages’ entitlement), then they will be conveyed in the order set forth in Appendix C. This provision is consistent with the special solicitude for potential park lands that was reflected both in the Terms and Conditions and in the negotiations leading to the Deficiency Agreement. It is not consistent with an intention that the government be required to convey land in accordance with the attached agreement between CIRI and the Villages, which included selections deviating greatly from the order of priorities set out in paragraph C and Appendix C.

4. Practical Construction and Denial of Summary Judgment

The Villages contend that the Deficiency Agreement must be ambiguous because officials of the BLM originally took the same view as the Villages regarding selections from Appendix C. But mistaken views about an unambiguous agreement do not create ambiguity. See In re Chicago & E.I. Ry. Co., 94 F.2d 296, 299-300 (7th Cir. 1938); 11 Richard A. Lord, Williston on Contracts § 32:14 at 501 (4th ed. 1999). Nor is ambiguity established by the fact that the district court denied summary judgment, and concluded only after trial that the Agreement was unambiguous. The district court originally noted the apparent conflict between paragraphs B and C of the Agreement, but was entitled to conclude, as we do, that there is no ambiguity concerning the Agreement’s mandate for government conveyance of land to CIRI. We note as well that the district court observed that the modern trend is to admit extrinsic evidence to aid in determining the common meaning of the parties to an agreement even in the absence of ambiguity. See O’Neill v. United States, 50 F.3d 677, 684 (9th Cir. 1995). We reject the contention that the district court’s careful approach to the meaning of the Agreement demonstrates ambiguity.

5. Consistency with the Terms and Conditions; Paragraph L of the Deficiency Agreement

Contrary to the contention of the Villages, there is no inconsistency between the Terms and Conditions and our interpretation of the Deficiency Agreement. It is true that Sections VIIB and VIIIA of the Terms and Conditions refer to section 12(a) selections in the Chinitna Peninsula and suggest a future voluntary exchange to support an expanded Lake Clark Park. But nothing in the Terms and Conditions required those section 12(a) selections to mature to conveyance. If they had so ripened (as they well might have if the lands of Appendix A of the Deficiency Agreement had been inadequate to fulfill the Villages’ entitlements), then the prospect of voluntary exchanges is perfectly meaningful. On the other hand, there could be no way of knowing for certain at the time the Terms and Conditions were solidified whether the section 12(a) selections in the Chinitna Peninsula were even valid (or perhaps were part of the Villages’ overselection). Nothing in the Terms and Conditions, therefore, precludes the Deficiency Agreement from being interpreted in present circumstances to preclude section 12(a) selections in the Appendix C area.

The same may be said of paragraph L of the Deficiency Agreement, which was added at the last moment apparently in an attempt to demonstrate consistency with the Terms and Conditions. Paragraph L provides, among other things, that lands within the Chinitna Peninsula “shall only be conveyed to CIRI where there are Section 12(a) selections on file with the Bureau of Land Management, December 18, 1974. . . .” This restriction is consistent with the Terms and Conditions, which reflected the desire of the federal government not to permit conveyance of land in Chinitna Peninsula except as a section 12(a) selection. But paragraph L, like the Terms and Conditions, does not mandate any such conveyances. It allows them, if otherwise permitted. Had the Appendix A lands been insufficient for the Villages’ entitlement, these section 12(a) conveyances (subject to paragraph C ordering) would have been made in Chinitna Peninsula. Paragraph L accordingly does not conflict with, or otherwise nullify the plain words of, paragraph C of the Agreement.

6. Canons of Construction

Because we conclude that the Deficiency Agreement is unambiguous, there is little room for operation of the canon favoring construction of agreements liberally in favor of Native Americans. See United States v. Washington, 759 F.2d 1353, 1358 (9th Cir. 1985) (en banc). The canon may not be used to avoid a contract’s plain language. See Choctaw Nation of Indians v. United States, 318 U.S. 423, 432, 87 L. Ed. 877, 63 S. Ct. 672, 97 Ct. Cl. 731 (1943) (“But even Indian treaties cannot be re-written or expanded beyond their clear terms to remedy a claimed injustice or to achieve the asserted understanding of the parties.”); see also Oregon Dep’t of Fish & Wildlife v. Klamath Indian Tribe, 473 U.S. 753, 774, 87 L. Ed. 2d 542, 105 S. Ct. 3420 (1985) (observing that the principle of resolving ambiguities in favor of Indians does not permit courts to ignore plain language). Because the plain language of the Deficiency Agreement requires exhaustion of Appendix A lands prior to conveyance of Appendix C lands, even a liberal construction of the agreement does not permit us to adopt the Villages’ interpretation. Nor does our investigation of the history and negotiations of the Deficiency Agreement dictate a contrary result. See Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 196, 143 L. Ed. 2d 270, 119 S. Ct. 1187 (1999). Because application of the canon would yield a result at odds with the clear meaning of the Deficiency Agreement, we decline to apply it here.

C. Ninilchik

The Villages argue that the Ninilchik Village Corporation is entitled to receive lands from Appendix C because it has no more 12(a) selections among the lands listed in Appendix A. Thus, although there are lands in Appendix A that remain to be conveyed, Ninilchik argues that it is entitled to receive its original 12(a) selections contained in Appendix C rather than substitute land from Appendix A.[5]

D. The Secretary’s Authority to Convey Lands in Appendix C

Ninilchik’s situation is simply an enactment of the operation of the Deficiency Agreement as interpreted by Interior and confirmed by us. Because Ninilchik is further along in the process than the other Villages, all of its section 12(a) selections in Appendix A have been conveyed. It has not fulfilled its entitlement and it made section 12(a) selections in Section C lands. Because there are Appendix A lands available, it cannot resort to Appendix C and must fulfill its section 12(a) entitlements from Appendix A land not subject to other Villages’ section 12(a) selections. Everything we have said thus far compels this conclusion.

The Villages argue that, even if Interior was not required to convey Appendix C lands to the Villages according to their original 12(a) priorities, the district court erred in determining that Interior lacked the authority to convey those lands. This point is no longer of consequence, however, in light of our determination that the Secretary has properly interpreted the Deficiency Agreement.

In 1976, when the Deficiency Agreement was reached, the Agreement could not be implemented without congressional approval because ANCSA did not permit the Secretary to convey land selected after the statutory deadline or land that did not meet statutory selection requirements. After the Deficiency Agreement was reached, Congress enabled its performance in a provision of Public Law 94-456 that stated: “The Secretary is authorized to convey lands under application for selection by Village Corporations within Cook Inlet Region to the Cook Inlet Region, Incorporated, for reconveyance to such Village Corporations.” Pub. L. No. 94-456, 90 Stat. 1935, § 4 (1976). The Villages argue that this provision explicitly authorizes the Secretary to convey to the Villages, via CIRI, their original 12(a) selections, regardless of whether they are listed in Appendix A or Appendix C of the Deficiency Agreement.

The purpose of the quoted statutory provision was to permit the Secretary to carry out the provisions of the Deficiency Agreement, which had been entered a mere four days before the enactment of the statute. The statute was broadly worded to permit the Secretary to convey land that he otherwise would have been unable to convey. If the Deficiency Agreement had been worded to require conveyance of all section 12(a) lands just as the Villages had selected them, the statute was written broadly enough to permit the Secretary to convey those lands. The statute authorizes, however; it does not command. It certainly does not command the Secretary to breach the provisions of the Deficiency Agreement, the performance of which the statute was designed to enable.

We need not decide, therefore, whether Public Law 94-456 authorized the Secretary to convey more broadly than the Deficiency Agreement required. The Deficiency Agreement bound the parties and specified the land to be conveyed by the Secretary to CIRI and the order of its conveyance. We cannot overturn the action of the Secretary in adhering to the Deficiency Agreement, even if the statute would have permitted the Secretary to convey in accordance with some other arrangement. The Villages’ argument is therefore of no avail.

III.

There is no question that the Villages feel strongly that they are entitled to their section 12(a) selections just as they made them. In their view, the Deficiency Agreement was simply a vehicle for fully accomplishing that goal. As the Solicitor of Interior pointed out, however, the Deficiency Agreement could have been much more simply written if the only goal was to effectuate all of the Villages’ selections just as they made them. The District Court concluded, after trial, that the evidence supported the plain language of the Agreement as a compromise measure that preserved some, but not all, of the Villages’ selections, while ensuring that the Villages received their full acreage entitlement. The district court also concluded, correctly in our view, that the unambiguous language of the Agreement controlled the government’s conveyances to CIRI, and precluded conveyance of Appendix C lands when there were still lands available in Appendix A.

The judgment of the district court is

AFFIRMED. 

Leisnoi, Inc. vs. Stratman

O’Scannlain, Circuit Judge:

We must determine whether a “Village Corporation” may prevent a “Regional Corporation” from authorizing sand-and-gravel mining near Kodiak under the Alaska Native Claims Settlement Act.

I

In 1971, Congress enacted the Alaska Native Claims Settlement Act (“ANCSA”), see Act of December 18, 1971, Pub. L. No. 92-203, 85 Stat. 688 (codified at 43 U.S.C. § 1601-1629a), a “legislative compromise” designed to resolve land disputes between the federal government, the state of Alaska, Alaskan Natives, and non-native settlers. City of Ketchikan v. Cape Fox Corp., 85 F.3d 1381, 1383 (9th Cir. 1996). Under this compromise, Alaskan Natives received, in exchange for the extinction of all claims of aboriginal title, approximately forty-four million acres of land and nearly $1 billion in federal funds. See 43 U.S.C. § § 1605, 1607, 1613. Much of this land was distributed in fee simple to “Regional Corporations”[1] and to “Village Corporations.”[2] ANCSA divided the state of Alaska into twelve geographic regions, each with a Native-owned Regional Corporation. See 43 U.S.C. § 1606(a). Within these twelve regions are many villages represented by Village Corporations, over 200 in total. See 43 U.S.C. § 1607.

Unfortunately, through the years, the Regional and Village Corporations have often found themselves in court as adversaries. See, e.g., Koniag, Inc. v. Koncor Forest Resource, 39 F.3d 991 (9th Cir. 1994); Tyonek Native Corp. v. Cook Inlet Region, Inc., 853 F.2d 727 (9th Cir. 1988). The litigation has had much to do with the fact that twenty-two million acres of ANCSA land are “dually owned“: The surface estate belongs to the Village Corporations, and the subsurface estate to the Regional Corporations. See 43 U.S.C. § § 1611, 1613. Because of ambiguities in these abutting land rights, controversies have arisen.

This case is yet another chapter in the ongoing saga that pits surface-estate owner against subsurface-estate owner. In 1974, the Department of the Interior certified Leisnoi, Inc., as a Village Corporation for the Native village of Woody Island. Leisnoi thus became eligible to select over 115,000 acres of land, which it would hold and manage on behalf of the Native village of Woody Island. See 43 U.S.C. § § 1611, 1613. In its application for land benefits, Leisnoi indicated that the Native village was located within two townships on the historic, western side of Woody Island. Generally, a Village Corporation like Leisnoi is allowed to select “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” its allotted acreage. 43 U.S.C. § 1611(a)(1) (emphasis added). Leisnoi selected some land on Woody Island, as well as some land on Kodiak Island and Long Island.[3] As explained above, Leisnoi’s interest in this land is only in the surface estate.

The Regional Corporation of Koniag received the subsurface estate in the land that Leisnoi selected on Kodiak Island. This land is located near Kalsin Bay, some twelve miles and a channel of water away from the physical structures that identify the Village of Woody Island. Pursuant to a quitclaim deed, Koniag transferred sand-and-gravel rights in a portion of this land to Omar Stratman, who has thus stepped into Koniag’s shoes for purposes of this appeal. Leisnoi and Stratman are avowed enemies who have found themselves in court on many occasions over the past twenty years. See Leisnoi, Inc. v. Stratman, 835 P.2d 1202, 1214 (Alaska 1992) (summarizing litigation between the two). The dispute in this case arises from Stratman’s mining activity on this “dually owned” land on Kodiak Island. Since July 1996, Stratman has been extracting gravel from his subsurface estate. As one might imagine, such operation can damage the surface estate, see Chugach Natives, Inc. v. Doyon, Ltd., 588 F.2d 723, 732 (9th Cir. 1979), and destroy artifacts buried in the ground. Wishing to prevent these deleterious effects, Leisnoi asserted that Stratman must obtain its consent before proceeding. Not surprisingly, Stratman disagreed.

Seeking injunctive and declaratory relief, Leisnoi filed suit in federal district court. Stratman responded by moving to dismiss the case under Rule 12(b)(6) or, in the alternative, for summary judgment. The district court granted the motion to dismiss.[4] According to the court, under ANCSA, a subsurface-estate owner (such as Stratman) needs to obtain the consent of a Village Corporation (such as Leisnoi) only when he wishes to mine lands “within the boundaries of a[ ] Native village.” Leisnoi, Inc. v. Stratman, No. A96-0361-CV, at 16 (D. Alaska filed Jul. 3, 1997) (quoting 43 U.S.C. § 1613(f) (internal quotation marks omitted)). As the district court saw it, Kodiak Island was simply not within the “boundaries” of the Native village of Woody Island.

Leisnoi timely appealed.[5]

II

Leisnoi contends that the district court misconstrued the section of ANCSA that vests in Village Corporations the power to withhold consent from, and thereby to preclude, mining operations. Section 14(f) of ANCSA provides that the right “to explore, develop, or remove minerals from the subsurface estate in the lands within the boundaries of any Native village shall be subject to the consent of the Village Corporation.” 43 U.S.C. § 1613(f) (emphasis added). According to Leisnoi, the “lands within the boundaries of a[ ] Native village” include all lands patented to the Village Corporation, or at least all such lands that the Native village has historically used. Under either interpretation, the lands within the boundaries of the Village of Woody Island would encompass that portion of Kodiak Island on which Stratman has performed his gravel operation, and Leisnoi would be entitled to an injunction.[6] Stratman counters that the boundaries of a Native village should instead be defined by physical structures that indicate occupancy. If his view prevails, then Leisnoi’s consent is not required, as the Village of Woody Island has structures only on Woody Island, not on Kodiak Island.

A

When construing statutory language, this court assumes “that the legislative purpose is expressed by the ordinary meaning of the words used.” Seldovia Native Ass’n, Inc. v. Lujan, 904 F.2d 1335, 1341 (1990) (quoting Richards v. United States, 369 U.S. 1, 9, 7 L. Ed. 2d 492, 82 S. Ct. 585 (1962) (internal quotation marks omitted)). Of course, because words can have alternative meanings depending on context, we interpret statutes, not by viewing individual words in isolation, but rather by “reading the relevant statutory provisions as a whole.” City of Ketchikan, 85 F.3d at 1385 (internal quotation and citation omitted). We thus interpret the phrase, “lands within the boundaries of any Native village,” by looking, first, to the surrounding words in § 14(f) (the subsection containing the consent proviso), and then, to other provisions in ANCSA.[7]

Section 14(f) reads, in relevant part:

When the Secretary issues a patent to a Village Corporation for the surface estate in lands . . . , he shall issue to the Regional Corporation for the region in which the lands are located a patent to the subsurface estate in such lands . . . : Provided, That the right to explore, develop, or remove minerals from the subsurface estate in the lands within the boundaries of any Native village shall be subject to the consent of the Village Corporation.

43 U.S.C. § 1613(f) (emphasis added). Quite significantly, the statute expressly contemplates two distinct concepts: first, lands “patented to a Village Corporation,” and second, lands “within the boundaries of a[ ] Native village.” Id. Whereas a Village Corporation receives title to all “patented” lands, it has the power to prevent mining, by withholding consent, only on those lands “within the boundaries of a[ ] Native village.”

Congress’s use of two distinct phrases leads us to conclude that two different meanings were intended. See 2A Sutherland, Statutory Construction § 46.06 (5th ed. 1992 & Supp. 1997) (“When the legislature uses certain language in one part of the statute and different language in another, the court assumes different meanings were intended.”). As the district court noted, “had Congress intended the consent term of subsection (f) to have general application, it would have chosen language requiring consent as to all patented lands, not the restrictive ‘within the boundaries’ language.” In other words, if Congress wanted the consent requirement to apply to all patented lands instead of a mere subset of those lands, Congress would have simply written the proviso as follows: “Provided, That the right to explore, develop, or remove minerals from the subsurface estate in all lands patented to any Village Corporation shall be subject to the consent of the Village Corporation.” Thus, we agree with the district court that, because Congress envisioned two different concepts, the boundaries of the Native village do not include all lands patented to the Village Corporation.

Other sections of ANCSA support this construction; they similarly contemplate a distinction between all lands patented and those lands within the boundaries of the Native village. Take, for example, the provision that makes certain federal land available for ANCSA patents by withdrawing it from the pool of land otherwise subject to appropriation under the public-land laws. See 43 U.S.C. § 1610. Significantly, this section withdraws more than those lands that lie within the boundaries of the Native villages. All told, it withdraws:

(A) The lands in each township that encloses all or part of any Native village . . . ;

(B) The lands in each township that is contiguous to or corners on the township that encloses all or part of such Native village; and

(C) The lands in each township that is contiguous to or corners on a township containing lands withdrawn by paragraph (B) of this subsection.

43 U.S.C. § 1610(a)(1). The Native villages are located solely in the townships mentioned in Paragraph (A); no Native village lies within the townships described in Paragraphs (B) or (C). These additional townships are nevertheless available for patents to Village Corporations. Thus, § 1610 confirms that all lands “patented” is a broader concept than those lands “within the boundaries of [the] Native village.”

Another example of how ANCSA contemplates a distinction between these two concepts is the statutory provision that authorizes Village Corporations to select the land they want patented to them. See 43 U.S.C. § 1611. This section reads in relevant part:

The Village Corporation for each Native village . . .  shall select . . .  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 . . . .

43 U.S.C. § 1611(a)(1) (emphasis added). Of course, the word “plus” implies that a Village Corporation is entitled to more area than those “townships in which any part of the village is located.” Because a Village Corporation ends up with more land than that which underlies the Native village, the lands patented to a Village Corporation must be more expansive than the boundaries of the Native village.

Finally, ANCSA provides that, after a Village Corporation selects its land, the Secretary of the Interior shall issue to the corporation a patent to the surface estate in land, a portion of which lies outside the Native village:

The lands patented shall be the lands within the township or townships that enclose the Native village, and any additional lands selected by the Village Corporation from the surrounding townships withdrawn for the Native village . . . .

43 U.S.C. § 1613(b). To be sure, this patent includes more than the lands within the boundaries of the Native village. Not only does the total include all land within the townships enclosing the Native village, but also “any additional lands” from surrounding townships.

Thus, the text of ANCSA draws a clear distinction between the lands patented to the Village Corporation and the boundaries of the Native village. The land within the Native village is a subset of the total patented lands. Hence, when Congress wrote in § 14(f), “that the right to explore, develop, or remove minerals from the subsurface estate in the lands within the boundaries of any Native village shall be subject to the consent of the Village Corporation,” Congress was not requiring consent for mining in “all patented lands.” The plain language of the statute is unambiguous. The district court was correct to reject Leisnoi’s contrary construction.

B

This conclusion, however, does not end our inquiry. We must still determine exactly where the boundaries lie. Although the preceding analysis indicates that the boundaries fall somewhere within the outer limits of the total patented lands, it does not help us decide their precise location. Are the boundaries marked by the Native village‘s historical use, as Leisnoi contends, or occupancy of the land, as Stratman contends?

Turning to this question, we learn that a federal agency has already interpreted the consent provision in ANCSA § 14(f). See 43 C.F.R. § 2651.2(b)(2). Pursuant to ANCSA § 25, which authorizes regulations necessary for carrying out the Act, see 43 U.S.C. § 1624, the Secretary of the Interior has established requirements that a village must meet before it can receive ANCSA land benefits. One of the requirements is that the village must have “an identifiable physical location evidenced by occupancy consistent with the Natives’ own cultural patterns and life style.” 43 C.F.R. § 2651.2(b)(2) (emphasis added). The mere existence of an “identifiable physical location” requirement is unremarkable; the statute itself anticipates each Native village will have a recognizable geographic location. See, e.g., 43 U.S.C. § 1610(a)(1)(A) (withdrawing from public appropriation those “lands in each township that encloses all or part of any Native village”); 43 U.S.C. § 1611(a)(1) (permitting Village Corporation to select land from “the township or townships in which any part of the village is located”). What is relevant to this appeal, we think, is how the Secretary determines this location. The Secretary identifies a Native village by looking for “evidence[ ] [of] occupancy consistent with the Natives’ own cultural patterns and life style.” 43 C.F.R. § 2651.2(b)(2) (emphasis added). Thus, in the Secretary’s view, the “boundaries of a[ ] Native village” are defined by reference to this physical evidence of occupancy.

Because the Secretary of the Interior bears “the principal responsibility for administering [ANCSA],” his interpretations are entitled to “great weight” upon judicial review. Doyon, Ltd. v. Bristol Bay Native Corp., 569 F.2d 491, 496 (9th Cir. 1978); see also Seldovia Native Ass’n, 904 F.2d at 1342 (“An administrative agency’s interpretation of a statute it is charged with administering is accorded substantial deference.”). We may not “simply impose [our] own construction on the statute” without regard to the Secretary’s regulations. Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 843, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984). Rather, we must defer to the Secretary unless his interpretation is inconsistent with the “unambiguously expressed intent of Congress” or is otherwise unreasonable. Id. at 842-43.

1

Leisnoi contends that identifying the boundaries of a Native village by means of occupancy, as the Secretary has done, is indeed inconsistent with express congressional intent. According to Leisnoi, Congress provided a definition of “Native village” that unambiguously requires boundaries to be determined by the Tribe’s historical use – not its occupancy – of the land:

“Native village” means any tribe, band, clan, group, village, community, or association in Alaska listed in sections 1610 and 1615 of this title, or which meets the requirements of this chapter, and which the Secretary determines was . . .  composed of twenty-five or more Natives.

43 U.S.C. § 1602(c) (emphasis added). Leisnoi argues that, because Congress used words such as “tribe, band, clan, group, village, community, [and] association,” Congress must have intended an expansive definition of “Native village,” one which extends to the Natives’ “entire community.” From this premise, Leisnoi jumps to the conclusion that courts should define the “boundaries of a[ ] Native village” by referencing the areas in which the Natives historically hunted, fished, hiked, and camped.

We do not dispute Leisnoi’s premise. At the risk of belaboring the obvious, the simple fact that Congress included “community” in its list of words defining a “Native village” indicates that the boundaries of the village extend over the “entire community.” Nonetheless, there is a fatal flaw in Leisnoi’s reasoning: the conclusion simply does not follow from the premise. There is no reason to believe that “community” must be defined by hiking and fishing instead of by occupancy. Indeed, the ordinary understanding of the word “community” might suggest that the opposite is true. Commonly defined, a “community” is a “people with common interests living in a particular area.” Webster’s Ninth New Collegiate Dictionary 267 (1986) (emphasis added). Hence, contrary to Leisnoi’s contention, ANCSA’s definition of “Native village” is not evidence of congressional intent to determine boundaries by means of historical use; indeed, the definition may actually support the Secretary’s understanding.

2

We thus inquire whether the Secretary’s interpretation is otherwise “reasonable.” See Chevron, 467 U.S. at 843-44; Seldovia Native Ass’n, 904 F.2d at 1342. “The court need not conclude that the agency construction was the only one it permissibly could have adopted to uphold the construction, or even the reading the court would have reached if the question initially had arisen in a judicial proceeding.” Chevron, 467 U.S. at 843 n.11. Instead, we simply ask whether we are “compelled” to reject the Secretary’s construction. See Alaska Wildlife Alliance v. Jensen, 108 F.3d 1065, 1070 (9th Cir. 1997) (internal quotations and citation omitted).

In this case, we are certainly not so compelled. ANCSA expressly contemplates that a Native village has a geographic “location.” See 43 U.S.C. § 1611(a)(1) (authorizing selection of land in “all of the township or townships in which any part of the village is located”); cf. 43 U.S.C. § 1613(b) (“The lands patented shall be the lands within the township or townships that enclose the Native village, and any additional lands selected by the Village Corporation from the surrounding townships . . . .”). In everyday usage, the “location” of a town, city, or village is “a position or site occupied or available for occupancy or marked by some distinguishing feature.” Webster’s Ninth New Collegiate Dictionary 701 (1986) (emphasis added); see also Webster’s Third New International Dictionary 1327 (1986) (defining “location” as “a position or site occupied or available for occupancy (as by a building) or marked by some distinguishing feature”) (emphasis added). Recognizing this ordinary understanding of the word “location,” which is substantially identical to the Secretary’s understanding, we would be hard pressed to say that the Secretary was unreasonable. Indeed, “in the absence of an indication to the contrary, words in a statute are assumed to bear their ‘ordinary, contemporary, common meaning.'” Walters v. Metropolitan Educ. Enters., Inc., 519 U.S. 202, 117 S. Ct. 660, 664, 136 L. Ed. 2d 644 (1997) (quoting Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. Partnership, 507 U.S. 380, 388, 123 L. Ed. 2d 74, 113 S. Ct. 1489 (1993)). Without a contrary statutory definition to unsettle this assumption, the Secretary did not make an unreasonable choice by following the ordinary understanding of the word “location.” Cf. Louisiana-Pacific Corp. v. Asarco Inc., 24 F.3d 1565, 1574 (9th Cir. 1994) (“The reasonableness of this interpretation is demonstrated by our analysis of what we have concluded to be the plain meaning of the statute.”).

Admittedly, in ANCSA, Congress may not have “directly addressed the precise question” of whether boundaries should be defined by occupancy or historical use; Congress’s use of the word “location” may be too casual to constitute an “unambiguous[ ] expression” of intent, as required to disregard an agency interpretation. Chevron, 467 U.S. at 843 (emphasis added). However, the commonly understood meaning of the word is indeed enough to render the Secretary’s regulation “a permissible construction of the statute.” Id.

a

Leisnoi nevertheless challenges this interpretation as unreasonable for three reasons. First, Leisnoi argues, demarcating boundaries by means of occupancy would render nugatory the consent provision insofar as the Native village of Woody Island is concerned. In other words, according to Leisnoi, if we adopt the Secretary’s interpretation, the Native village of Woody Island would have no power to withhold consent and to preclude mining on any land. Leisnoi does not own the surface estate of the land on which the village’s structures and dwellings are located; Leisnoi could not receive patents to such land because it lies within two miles of a “home rule” city, the City of Kodiak. 43 C.F.R. § 2650.6(a) (“Notwithstanding any other provisions of the act, no village or regional corporation may select lands which are within 2 miles from the boundary of any home rule or first-class city . . . .”). Therefore, its argument goes, if Village Corporations may withhold consent only when they own the underlying surface estate, Leisnoi would have no power to withhold consent over any land.

We need not decide whether Leisnoi’s presumption – that the consent power is limited to land which the Village Corporation owns (as well as occupies) – is correct. Assuming it to be true, we hold that the Secretary’s construction, which is consistent with if not recommended by the plain meaning of ANCSA, is nevertheless reasonable. Our conclusion might lead to perceived unfairness in a few rare situations, such as this one, but perfection is not to be expected from a statutory scheme such as ANCSA, which attempts to settle land claims in over 200 villages across the largest state in our Union. Moreover, under Chevron, an agency’s interpretation of a statute need not be flawless to be reasonable. See San Bernardino Mountains Community Hosp. Dist. v. Secretary of Health and Human Servs., 63 F.3d 882, 889 (9th Cir. 1995); see also Appalachian Regional Healthcare, Inc. v. Shalala, 131 F.3d 1050, 1054 (D.C. Cir. 1997) (Sentelle, J., dissenting) (“We are all in agreement that to survive the two-step analysis drawn from [Chevron], the Board’s ruling . . .  need not be perfect, or even the best, but only reasonable.”). We therefore reject Leisnoi’s first argument.

b

Leisnoi’s second argument is that the Secretary’s interpretation is inconsistent with legislative history. We disagree. The passage Leisnoi cites, an excerpt of a House Report, is inconclusive:

Section 14(f) of the Settlement Act provides that the right to explore, develop, or remove minerals from the subsurface estate in the lands within the boundaries of any Native village are to be subject to the consent of the Village Corporation. This provision provides protection to villages from a precipitate decision by Regional Corporations to develop the subsurface estate. This provision seeks to avoid potential conflicts between villages which are holders of the surface estate and which may be made concerned with preserving the use of the land in accordance with traditional local life-styles and subsistence economy and Regional Corporations which are holders of the subsurface estate and which may have as their focus the generation of revenues from the land.

H. Rep. No. 94-729, at 26 (1975), reprinted in 1975 U.S.C.C.A.N. 2376, 2393 (emphasis added). As this court has emphasized, the use of legislative history as a tool for statutory interpretation suffers from a host of infirmities: not only is legislative history “not passed by both houses of Congress and signed into law by the President,” but it also “need not be written with the same care, or scrutinized by those skeptical of the statute with the same care, as statutory language.” See Puerta v. United States 121 F.3d 1338, 1344 (9th Cir. 1997); see also Conroy v. Aniskoff, 507 U.S. 511, 519, 123 L. Ed. 2d 229, 113 S. Ct. 1562 (1993) (Scalia, J., concurring in judgment) (analogizing use of legislative history to “entering a crowded cocktail party and looking over the heads of the guests for one’s friends”). Reliance on such history is particularly suspect when it is inconsistent with the ordinary understanding of the words in the statute and an otherwise reasonable agency interpretation.

In any event, the language to which Leisnoi points is ambiguous and arguably consistent with the Secretary’s interpretation of the statute. The House Report simply expresses a desire to allow Village Corporations to “preserve the use of the land in accordance with traditional local life-styles and subsistence economy.” The Report does not identify this land, aside from the fact that it is “within the boundaries of a[ ] Native village.” In other words, the Report does not indicate whether the land referenced is all land historically used (for fishing, hiking, etc.) or only land on which occupancy structures have been built. Because the legislative history is unclear, it cannot displace the Secretary’s understanding of the text of the statute.

c

Finally, Leisnoi contends that the Secretary’s interpretation is in tension with a “Congressional policy of fostering economic growth.” In the preamble of the statute, Congress proclaimed that the ANCSA land settlement “should be accomplished . . . in conformity with the real economic . . . needs of Natives.” 43 U.S.C. § 1601(b). Leisnoi asserts in its brief that defining boundaries by occupancy stifles this policy: Surface estates would “effectively be rendered unmarketable and off-limits to any construction of homes or improvements, since subsurface owners could at any time dig out beneath the foundations of any improvements to exercise what the district court granted as an unfettered right to extract sand and gravel without notice and consent.” We are unpersuaded for two reasons. First, we do not reach the question of whether Alaska property law precludes mining activity that unreasonably interferes with the rights of surface-estate owners. Second, surface and subsurface-estate owners can, of course, resolve potential future disputes by way of contract. Cf. Alaska v. Native Village of Venetie Tribal Gov’t, 140 L. Ed. 2d 30, 118 S. Ct. 948, 951 (1998) (noting that ANCSA does not restrict land transfers by Village or Regional Corporations). Theoretically, at least, given a world of no transaction costs, economic optimality does not depend on the allocation of a property right (such as the power to authorize mining) to one party or another; the two parties can simply bargain to the optimal solution. See R.H. Coase, The Problem of Social Cost, 3 J.L. & Econ. 1, 2-15 (1960). Assuredly, theory might not survive practice; however, the determinations of whether theory prevails and, if not, whether economic growth is maximized by granting the property right to the surface-estate owner, instead of the subsurface-estate owner, should not be made by the judiciary. We are ill-equipped to hypothesize on the consequences of imperfect information or other impediments to bargaining.[8] “Such policy arguments are more properly addressed to legislators or administrators . . .” Chevron, 467 U.S. at 864. Because “the responsibilities for assessing the wisdom of such policy choices and resolving the struggle between competing views of the public interest” are best left to the elected branches of government, id. at 866, we do not hold the Secretary’s interpretation unreasonable. The “boundaries of a[ ] Native village” are defined by occupancy, not historical use.

III

Implementing this test, we simply examine whether the Native village of Woody Island has demonstrated evidence of occupancy on Kodiak Island. It has not. When the Native village applied for land benefits in 1973, pursuant to the Secretary’s regulations, it reported its “location” – defined by occupancy structures – as follows:

The Native Village of Woody Island is located within Townships: T27S and T28S, Range 19W, Seward Meridian, Alaska, as shown on the enclosed map.

These townships, the map reveals, are on Woody Island, not Kodiak Island. The Bureau of Indian Affairs confirmed this location later that year. Although it is conceivable that – through normal village expansion – a Native village‘s boundaries might today be different from what they were in 1973, that is not the case here. Leisnoi has never suggested that the village has expanded to occupy Kodiak Island. Thus, Stratman, having already received a deed from Koniag, does not need Leisnoi’s additional consent to proceed with his mining there. The district court did not err in granting the Rule 12(b)(6) dismissal.

AFFIRMED.

Boy Dexter Ogle vs. Salamatof Native Association, Inc.

Boy Dexter Ogle (“Ogle”) sues Salamatof Native Association, Inc. (“Salamatof”) in equity for specific performance of a federal statutory duty to reconvey land claimed pursuant to 43 U.S.C. § 1613(c). In addition, Ogle seeks damages based upon supplemental state claims. This Court has jurisdiction over the reconveyance claim pursuant to 28 U.S.C. § 1331 and jurisdiction over the supplemental claims pursuant to 28 U.S.C. § 1367.[1]

Salamatof seeks dismissal pursuant to 43 U.S.C. § 1632(b). Docket Nos. 15 & 21. Salamatof contends that Ogle failed to commence this action within one year of the filing of the map of boundaries, and thereby lost his right to sue. Id. The motion is opposed. Docket No. 18. Ogle argues that he was not given sufficient notice of Salamatof’s actions regarding his claim to satisfy due process. Id. Both parties request oral argument. Docket Nos. 22 & 23. However, the record has been fully developed and oral argument would not be helpful. D. Ak. LR 7.1(i); see United States v. Cheely, 814 F. Supp. 1430, 1436 n.2 (D. Alaska 1992).

The Court has reviewed the record and concludes that the motion to dismiss should be denied in part and granted in part. Ogle has no viable state claim against Salamatof and his supplemental claims will be dismissed. On the other hand, the existing record leaves open the possibility that Ogle did not receive notice of certain significant events in a manner conforming to due process. If, after a full development of the facts, Ogle establishes that due process was violated, he may be entitled to a judicial remedy. Constitutional due process assures Ogle of notice at two significant stages: First, when the village corporation is preparing its map and considering claims for reconveyance; and second, after the village corporation has considered the claims for reconveyance and proceeds to file its map with the Department of the Interior. The filing of the map effectively announces the village corporation’s ruling on claims of reconveyance. Further proceedings will be necessary to determine whether Ogle had actual, inquiry, or constructive notice at each of these crucial points in the determination of his claim. See 58 Am. Jur. 2d, Notice §§ 5-6, 9, & 15 (1989).[2]

Actual notice has been said to be of two kinds: (1) express, which includes direct information, and (2) implied, which is inferred from the fact that the person charged had means of knowledge which it was his duty to use. 58 Am. Jur. 2d, Notice § 6. Thus, notice is regarded in law as actual where the person sought to be charged therewith either knows of the existence of the particular facts in question or is conscious of having the means of knowing it, even though such means may not be employed by him or her. See Perry v. O’Donnell, 749 F.2d 1346, 1351 (9th Cir. 1984). Similar to implied actual notice is constructive notice. 58 Am. Jur. 2d, Notice § 7. Constructive notice is a legal inference or a legal presumption of notice which may not be disputed or controverted. See Butte & Superior Copper Co. v. Clark- Montana Realty Co., 249 U.S. 12, 63 L. Ed. 447, 39 S. Ct. 231 (1919); Hotch v. United States, 14 Alaska 594, 212 F.2d 280 (9th Cir. 1954). The importance of the classification of notice of this character arises from the fact that constructive notice is a legal inference, while implied actual notice is an inference of fact. 58 Am. Jur. 2d, Notice § 7. Finally, the closely related concept of inquiry notice exists where a person has knowledge of such facts as would lead a fair and prudent person using ordinary care to make further inquiries. Shacket v. Roger Smith Aircraft Sales, Inc., 651 F. Supp. 675, 690 (N.D. Ill. 1986), aff’d, 841 F.2d 166 (7th Cir. 1988); see discussion at 58 Am. Jur. 2d, Notice §§ 6 & 15 (creating a third type of notice which resembles both constructive and actual notice). Under this theory, a person who fails to diligently inquire is charged with knowledge that would have been required through such inquiry. 58 Am. Jur. 2d, Notice, § 15.

DISCUSSION

I. Background

Central to this case is the Fifth Amendment to the United States Constitution, which provides in relevant part: “No person shall . . . be deprived . . . of property, without due process of law; . . . ‘ This provision acts as a limitation on actions by the United States Government.[3] The phrase “due process of law,” which also occurs in the Fourteenth Amendment to the Constitution as a limitation on actions by the states, encompasses two general ideas: the protection of substantive rights (substantive due process) and the protection of procedural fairness (procedural due process). See Zinermon v. Burch, 494 U.S. 113, 125-28, 108 L. Ed. 2d 100, 110 S. Ct. 975 (1990).[4] In this case, we are concerned with procedural due process. Specifically, where it is assumed for the purposes of argument that an Alaska Native has used a parcel of land as a primary residence, a primary place of business, or a subsistence campsite, thereby earning a right to reconveyance under 43 U.S.C. § 1613(c)(1), the Court must determine what process is due before that right to reconveyance may be extinguished.[5]

In context, due process normally requires notice and an opportunity to be heard. Thus, where any proceeding will finally determine a person’s property rights, he is entitled to notice reasonably calculated, under all of the circumstances, to apprise him of the pendency of the proceeding and an opportunity to present his claim or objections. Tulsa Professional Collection Services, Inc. v. Pope, 485 U.S. 478, 484, 99 L. Ed. 2d 565, 108 S. Ct. 1340 (1988). What is “reasonable notice” depends upon all the circumstances and requires a delicate balancing of the people’s interest in a final resolution of disputes and the claimant’s right to protect his property. Id.; see also Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 77 L. Ed. 2d 180, 103 S. Ct. 2706 (1983); Texaco, Inc. v. Short, 454 U.S. 516, 70 L. Ed. 2d 738, 102 S. Ct. 781 (1982); Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 94 L. Ed. 865, 70 S. Ct. 652 (1950). Actual notice is required as a precondition to a proceeding which will adversely affect the property interests of any party if its name and address are reasonably ascertainable. Tulsa, 485 U.S. at 485. In determining whether the name and address of a claimant is “reasonably ascertainable,” the party having the duty to give notice need only exercise “reasonably diligent efforts” to discover the claim. Id.

In order to resolve this case, we must therefore decide a number of questions: First, whether Salamatof’s role in evaluating and determining section 14(c) claims makes it a federal actor for the purposes of Fifth Amendment analysis; second, whether Salamatof’s actions in developing a map addressing and resolving section 14(c) claims constitutes a “proceeding” which requires notice; third, if a proceeding is contemplated, whether the village corporations must afford section 14(c) claimants, like Ogle, a particular type of “hearing” in order to evaluate their 14(c) claims;[6] and fourth, whether additional notice should have been given to Ogle of the village’s filing of the map and the need to seek judicial review within a definite period or forever be barred from any judicial relief. In order to address these issues in context, it is necessary to review the applicable provisions of the Alaska Native Claims Settlement Act (“ANCSA“).

The United States Congress enacted ANCSA in 1971. 43 U.S.C. §§ 1601-1629(a) (1995). ANCSA extinguished the Native people of Alaska’s claims to aboriginal land title, and in return federal lands and other consideration were transferred to Alaska Natives. In order to accomplish this purpose, the United States Congress created regional and village corporations that were intended to receive the lands conveyed.

Included in ANCSA are a number of provisions designed to protect the rights of those with existing rights to land conveyed under ANCSA. Existing leases, homesteads, mining claims, and similar sites are protected. See 43 U.S.C. §§ 1613(g), 1621(b), 1621(c). Another provision, commonly known as section 14(c), requires the conveyance of lands by the village corporation to individuals on the basis of their occupancy for a particular purpose rather than their common law property rights. See 43 U.S.C. § 1613(c). The uses deemed sufficient to give rise to such a claim include claims that the property was a primary place of residence, a primary place of business, or a subsistence campsite. 43 U.S.C. § 1613(c)(1).

To facilitate the transfer of section 14(c) properties to lawful claimants, the Secretary of the Interior enacted regulations requiring the survey of the lands claimed by the villages. See 43 C.F.R. § 2650.5-4. This regulation requires village corporations to file a map delineating its land selections, including tracts that are to be reconveyed under section 14(c). Id. The map is then used by the Bureau of Land Management (“BLM”) as a “plan of survey.”Section 2650.5-4 provides, in pertinent part:

§ 2650.5-4 Village Surveys. (a) Only the exterior boundaries of contiguous entitlements for each village corporation will be surveyed . . . (b) Surveys will be made within the village corporation selections to delineate those tracts required by law to be conveyed by the village corporations pursuant to section 14(c) of the Act. (c) (1) The boundaries of the tracts described in paragraph (b) of this section shall be posted on the ground and shown on a map which has been approved in writing by the affected village corporation and submitted to the Bureau of Land Management. Conflicts arising among potential transferees identified in section 14(c) of the Act, or between the village corporation and such transferees will be resolved prior to submission of the map.

          (2) . . . No surveys shall begin prior to final written approval of the map by the village corporation and the Bureau of Land Management. After such written approval, the map will constitute a plan of survey. No further changes will be made to accommodate additional section 14(c) transferees, and no additional survey work desired by the village corporation or municipality within the area covered by the plan of survey or immediately adjacent thereto will be performed by the Secretary.

43 C.F.R. § 2650.5-4.

The BLM accepted and approved the filing of Salamatof’s map of boundaries on May 14, 1993. Section 1632(b) provides: Decisions made by a Village Corporation to reconvey land under section 14(c) of the Alaska Native Claims Settlement Act [43 U.S.C.A. § 1613(c)] shall not be subject to judicial review unless such action is initiated before a court of competent jurisdiction within one year after the date of the filing of the map of boundaries as provided for in regulations promulgated by the Secretary. 43 U.S.C. § 1632(b). It is undisputed that the § 1632(b) limitations period expired on May 14, 1994, and that Ogle did not make a claim under section 14(c) within the allotted one year period. However, 43 C.F.R. § 2650.5-4 indicates that the determination of section 14(c) claims is a matter left to the village corporations to resolve.[7] In order to resolve disputes, the village must establish a procedure to identify potential 14(c) claimants and consider their claims. Section 14(c) therefore contemplates that the village corporations will provide reasonable notice to 14(c) claimants both prior to and after filing their map of boundaries with the Department of the Interior. Notice prior to the filing is necessary in order to assure that bona fide claims are recognized in the map, and notice subsequent to the filing of the map is necessary to insure that those whose claims are denied are alerted to their right to judicial review.

Unfortunately, neither ANCSA nor the regulations provide the village with explicit directions regarding the types of notice that must be given by village corporations.[8] Prior to filing their map of boundaries, Salamatof published notice of its reconveyance program under section 14(c) in The Peninsula Clarion for fourteen days and in the Tundra Times in five consecutive weekly issues in 1986. In addition, Salamatof gave a similar notice to its shareholders in a newsletter that it published. After filing its map of boundaries with the Department of the Interior, Salamatof made no further efforts to notify potential 14(c) claimants, though the Department of the Interior adopted a policy whereby it published notice for a single day in two newspapers, and also sent notice for posting in the Kenai Post Office.[9]

In their briefs, neither party provides the Court with a map detailing the relationship between the land to which Ogle asserts his reconveyance rights and the primary location of Salamatof Native Association. Where the land in issue is in the vicinity of the village and all claimants use the village as a base of operations to get mail and supplies and travel to and from the outside, notice posted in the post office or general store may be sufficient if it is coupled with personal notice to those known to the village members. When the land in question may have no historical or geographical connection with the village, and claimants may have no reason to regularly visit the village, notices posted in the village may have no likelihood of reaching claimants. By the same token, claimants might not associate the land they claim with a village which might be far away. Of course, where the village has no past association with or even easy access to the land affected, its burden of discovering potential claimants and giving them notice is increased.

II. Constitutional Due Process

Congress is generally under no obligation to create a property right in any private individual or group. Where, however, Congress creates rights, as it did in the case of 14(c) claimants, the government must make reasonable efforts to alert the possessor of such rights to the risk of loss. The administration of Native land claims is a power traditionally exclusively reserved to the government. When Congress and the Secretary delegated to Salamatof initial responsibility to resolve section 14(c) claims, it became an instrument of the federal government, obligated under the Fifth Amendment to give adequate notice before depriving anyone of his or her property rights. See Arnett v. Kennedy, 416 U.S. 134, 167, 40 L. Ed. 2d 15, 94 S. Ct. 1633 (1974), reh’g denied, 417 U.S. 977, 41 L. Ed. 2d 1148, 94 S. Ct. 3187 (1974); see also Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541, 84 L. Ed. 2d 494, 105 S. Ct. 1487 (1985); McGraw v. City of Huntington Beach, 882 F.2d 384, 389 (9th Cir. 1989);Dorr v. Butte County, 795 F.2d 875, 877 (9th Cir. 1986).In Loudermill, the Court stated:

The point is straightforward: the Due Process Clause provides that certain substantive rights — life, liberty, and property — cannot be deprived except pursuant to constitutionally adequate procedures. . . . The right to due process ‘is conferred not by legislative grace, but by constitutional guarantee. While the legislature may elect not to confer a property interest . . . it may not constitutionally authorize the deprivation of such an interest, once conferred, without appropriate procedural safeguards.’

470 U.S. at 541. In the absence of proceedings that comport with due process, the property rights that Congress granted to 14(c) claimants through ANCSA would be rendered meaningless.

Prior to an action which will affect an interest in property protected by the Due Process Clause of the Fourteenth Amendment, a government actor must provide “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane, 339 U.S. at 314. Elaborating upon the principle announced in Mullane, the Supreme Court has more recently held that notice by mail or other means as certain to ensure actual notice is a minimum constitutional precondition to a proceeding which will adversely affect the liberty or property interests of any party, if the party’s name and address are reasonably ascertainable. Mennonite, 462 U.S. at 800.

The Court cannot yet determine whether Ogle’s identity as a 14(c) claimant was known or reasonably ascertainable. Further briefing from the parties will be required to determine whether “reasonably diligent efforts” would have identified Ogle and revealed his claim. Tulsa, 485 U.S. at 485. Ogle’s repeated notification to Salamatof of his ongoing allotment dispute with the BLM may be relevant to this analysis.[10] Both parties should analyze whether Ogle was provided with actual notice, constructive notice, or notice of facts that would have put him on inquiry notice of the need to file his claim. If the Department of the Interior gave Ogle actual notice of the official filing date and the running of the one- year statute of limitations, then the village’s failure to give actual notice may have been harmless error.

Particularly extensive efforts to provide effective notice may often be required when the government is aware of a party’s inexperience or incompetence. See, e.g., Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 13-15, 56 L. Ed. 2d 30, 98 S. Ct. 1554 (1978).[11] Phrased another way, “When notice is a person’s due, process which is a mere gesture is not due process.” Mullane, 339 U.S. at 315. Questions as to the form that notice must take are distinct from the question of whether service must be personal, by mail, or by publication.

III. Salamatof had no Fiduciary or Trust Duty to Ogle

Section 14(c) requires village corporations, upon receipt of a patent, to “first convey” to any Native or non-Native occupants title to the tract they occupied on December 18, 1971. 43 U.S.C. § 1613(c). Ogle claims that this created a trust, under which village corporations received and held title to section 14(c) lands for the benefit of section 14(c) claimants. Ogle ignores the ruling of the court in Lee v. United States, 629 F. Supp. 721, 728 (D. Alaska 1985). In Lee, the court stated that ANCSA‘s language, structure, and legislative history all demonstrate that Congress intended to provide a “comprehensive and final resolution of all issues relating to Native land claims in Alaska.” Lee, 629 F. Supp. at 728. The court expressly found that common law remedies, such as a constructive trust theory, were nothing more than an attempt to alter the comprehensive legislative scheme adopted by Congress. Id. at 729. Ogle and Salamatof are adversaries, not fiduciaries. The court’s holding in Lee makes clear that a trust will not be created by implication.

IV. There is no Monetary Claim for Breach of 14(c)

Ogle also contends that even if the statute of limitations is determined to constitute an absolute bar to Ogle’s section 14(c) claim, Ogle still has a cause of action against Salamatof for the wrongful loss of his section 14(c) claim. Ogle’s argument runs contrary to the express purpose and intent of ANCSA to promptly resolve claims without litigation. 43 U.S.C. § 1601. Again, turning to Lee and its stance on the creation of common law surrounding ANCSA, this cause of action does not fill a gap, but rather, creates a new and unwarranted cause of action. This Court refuses to imply or create a cause of action on the part of a 14(c) claimant against an ANCSA corporation.

CONCLUSION

Ideally, potential section 14(c) claimants would be notified of their property interest by the village corporation during the village corporation’s survey of its lands. The 14(c) claimant and the village corporation would seek informal resolution of the claim, and if resolution at the village level was unsuccessful, seek judicial review in the short time permitted after filing the map of boundaries. Salamatof’s filing of the map of boundaries is most properly viewed as the village’s last and final decision regarding pending claims. The filing would properly trigger petitions for judicial review by anyone whose claim was not honored. Salamatof is an Alaska business organized for profit and is not an impartial agency. There is no basis for according a special level of deference, such as applying an arbitrary and capricious standard, to decisions made by the village corporation. Judicial review must be de novo.

Thus, there are two points at which notice is required to comport with due process: (1) at the time the village is finalizing its land selections and preparing its map, so that claims may be made and if possible informally resolved; and (2) after filing its map in order to trigger the statute of limitations. The Court cannot yet decide whether Ogle received the notice that was due from Salamatof prior to its filing the map of boundaries with the Department of the Interior. Nor can the Court yet determine whether the notice afforded by the Department of the Interior alerted Ogle to the running of the one-year statute of limitations. At a minimum, the Court will require further briefing from the parties. It is possible that a factual hearing will eventually be necessary.

          IT IS THEREFORE ORDERED:

The motion to dismiss at Docket No. 15 is DENIED IN PART AND GRANTED IN PART. Ogle’s state claims are dismissed with prejudice. His federal due process claims require further proceedings. The requests for oral argument at Docket Nos. 22 & 23 are DENIED.

Polly Creek Estate Trust, et al v. Knikatnu Inc. and Tyonek Native Corporation

O R D E R of Summary Judgment

I. INTRODUCTION

At Docket No. 15, Defendants Knikatnu, Inc. (“Knikatnu”) and Tyonek Native Corporation (“Tyonek”) moved for summary judgment against Plaintiffs Polly Creek Estate Trust, Karen L. Daugherty as Trustee of the Estate of Elaine Swiss, Tyler Swiss, Jack Swiss, and Karen Daugherty (“Plaintiffs”). Defendants request a ruling from this Court that they are not obligated under the Alaska Native Claims Settlement Act (“ANCSA”) to transfer to the Polly Creek Estate Trust a fee interest in an airstrip located near Polly Creek, Alaska, on the west side of the Cook Inlet. The motion has been fully briefed and is ripe for decision. For the reasons outlined below, Defendants’ Motion is GRANTED.

II. BACKGROUND

The Polly Creek Estate Trust (“the Trust”) and the Estate of Elaine Swiss are the successors in interest to the assets of John Swiss, who passed away in 2007. The remaining Plaintiffs are the children of John and Elaine Swiss.

John Swiss first came to Polly Creek in 1949. He filed for a 3.4-acre federal homesite near the mouth of Polly Creek on the southwest shore of Cook Inlet, which was patented in 1960. He later inherited an adjacent 77.8-acre homestead from his brother Henry.

Not long after establishing his homestead in the area, Swiss cleared out a rudimentary airstrip on federal property near the homestead. On March 1, 1964, the Bureau of Land Management (BLM) and Swiss entered into a 20-year public airport lease for 2.5 acres of land at the mouth of Polly Creek, which includes the airstrip. The lease was granted with the express purpose that Swiss would “establish a public airport” which would be “available for public use.”[1] The lease expired in 1984, and at that point Swiss’ interest in the leasehold terminated.

By 1986, the land on which the airstrip sits had been claimed from the federal government by the Cook Inlet Region, Inc. (“CIRI”), an Alaska Native corporation, pursuant to the provisions of the Alaska Native Claims Settlement Act, 43 U.S.C.A. § 1613.[2] In 1987, CIRI transferred the land to Defendants Knikatnu, Inc. and Tyonek, Inc, in separate parcels, such that the Defendants together own the airstrip site.[3]

Swiss filed successive applications with Defendants in 1988, 1990, and again in 2000 to have the airstrip land transferred to him under the provisions of 43 U.S.C. § 1613(c)(1).[4] In a letter dated December 19, 2000, counsel for Swiss described the land Swiss sought from Defendant Tyonek as a “portion of landing strip near homesite[,]” and listed Swiss’ uses of the property as “guiding, air taxi, commercial and subsistence fishing.”[5] All of Swiss’ applications were rejected.

Swiss passed away in 2007. On March 13, 2008, Defendant Tyonek filed a proposed map of boundaries with the Bureau of Land Management and the BLM approved the map on March 17, 2009.[6] Plaintiffs filed this suit in Alaska Superior Court on March 12, 2009, within the statute of limitations for an action under § 1613(c)(1). Plaintiffs’ Complaint asks this Court to enter an “injunction requiring [Defendants] to convey to the Trust title in fee to the Polly Creek airstrip, and a permanent easement as to applicable approach clear zones or safety zones for the airstrip[.]”[7]

III. LEGAL STANDARD

Summary judgment is appropriate if, when viewing the evidence in the light most favorable to the non-moving party, there are no genuine issues of material fact and the moving party is entitled to judgment in its favor as a matter of law.[8] The moving party bears the initial burden of proof as to each material fact upon which it has the burden of persuasion at trial.[9] This requires the moving party to establish, beyond controversy, every essential element of its claim or defense.[10] “When the party moving for summary judgment would bear the burden of proof at trial, it must come forward with evidence which would entitle it to a directed verdict if the same evidence were to be uncontroverted at trial. In such a case, the moving party has the initial burden of establishing the absence of a genuine issue of fact on each issue material to its case.”[11]

Once the moving party has met its burden, the nonmoving party must demonstrate that a genuine issue of material fact exists by presenting evidence indicating that certain facts are so disputed that a fact-finder must resolve the dispute at trial.[12] The court must view this evidence in the light most favorable to the nonmoving party, must not assess its credibility, and must draw all justifiable inferences from it in favor of the nonmoving party.[13]

Plaintiffs’ counsel acknowledged at oral argument that there was no genuine issue of material fact. At this stage of the litigation, the Court need only determine whether Defendants are entitled to summary judgment as a matter of law.

IV. DISCUSSION

In their Complaint, Plaintiffs asked this Court to order Defendants to convey the airstrip land to the Trust because they were entitled to such a transfer under 43 U.S.C. § 1613(c)(1). Section 1613 specifies procedures by which an Alaska Native corporation may obtain title to Alaskan land to which it is entitled under the Alaska Native Claims Settlement Act, (ANCSA). Once the Native Corporation has obtained land under ANCSA, subsection (c)(1) provides that an individual who occupied those lands as of December 18, 1971, may receive, from the Native corporation, title to the lands they used at that time. This conveyance does not require the payment of consideration.[14] The right to reconveyance is limited, however, to four types of occupancy. The land to which the occupant seeks title must have been used, as of December 1971, “as a primary place of residence, or as a primary place of business, or as a subsistence campsite, or as headquarters for reindeer husbandry[.]”[15] Plaintiffs rest their subsection (c)(1) claims on the assertion that the airstrip “provides access to the plaintiffs’ primary place of business and subsistence site at Polly Creek.”[16]

Defendants argue in their motion that the airstrip land does not fit any of the purposes stated in § 1613(c)(1). Defendants further argue that the airstrip cannot fall within the reach of subsection (c)(1) because Congress specifically addressed the disposition of “airport sites” in § 1613(c)(4). Plaintiffs oppose the motion, arguing that “[w]ithout a right of access to the airstrip sought in John Swiss’s §14(c)(1) application, plaintiffs will be unable to safely and conveniently gain access to, and use, their patented lands as the primary place of their commercial fishing business and their subsistence campsite[.]”[17]

Although the facts are not generally in dispute, there remains some factual question as to which of John Swiss’ many business activities was most prevalent at his Polly Creek homesite. Swiss and his heirs have already been allotted a “primary place of business” for Swiss’ guiding activities under subsection (c)(1). In their motion, Defendants assert that Swiss’ primary economic activity at Polly Creek was guiding big game hunts, not subsistence fishing. Thus, according to Defendants, the homesite cannot be recognized as a “primary place of business” for Swiss’ fishing activities because it was instead used primarily for guiding.[18] Meanwhile, Plaintiffs claim that “[m]uch of Swiss’ big game guiding took place on the Alaska Peninsula and in the Interior, while his (and his family’s) seasonal commercial fishing and subsistence activities occurred at and in the vicinity of Polly Creek.”[19]

The Court need not delve into that factual dispute because, regardless of what business Swiss conducted his Polly Creek campsite, it is undisputed that the airstrip itself was neither a “primary place of business” nor a “subsistence campsite.” The airstrip merely provides access to Swiss’ Polly Creek homestead, and Plaintiffs’ own Complaint establishes that Swiss’ fishing operations were conducted at the homestead and the creek itself, not at the airstrip.[20]

Plaintiffs’ litigation position is that subsection (c)(1) requires the transfer of an airstrip if that airstrip is necessary for access to land occupied for a purpose listed in subsection (c)(1). But Plaintiffs have failed to cite any authority which supports this assertion. Plaintiffs cite to Hakala v. Atxam Corp., 753 P.2d 1144 (Alaska,1988), in which the owner of a guiding business was held to be entitled to § 1613(c)(1) reconveyance of a cabin that he used for his guiding operations, along with the curtilage to that cabin. The Hakala court also held that the plaintiff was entitled to use, “to the same extent as the public,” certain public easements which were included in the federal government’s land grant to the defendant Native corporation.[21] Those public easements included the use of a “bush airstrip.”[22]

According to Plaintiffs, Hakala stands for the proposition that, if an airstrip “were necessary for the applicant’s physical access to the 14(c)(1) site, and this improvement lay within the ‘curtilage’ as defined and described in Hakala[,] it would not be precluded from conveyance[.]”[23] The problem with this reading of Hakala is that the airstrip in that case was not held to be part of the cabin’s “curtilage,” despite being “near” to the plaintiff’s cabin.[24] Rather, the plaintiff’s access to airstrip was premised on the public easement which was included in the federal land grant, and could have been used by anyone.[25] Plaintiffs argue that if the airstrip in Hakala had not already been subject to a public easement, the Alaska Supreme Court would have considered it to be part of the cabin’s “curtilage” because “without a right of access to the nearby, existing bush airstrip,” a § 1613(c)(1) reconveyance of the cabin and surrounding property “would be worthless, and meaningless.”[26] But as Defendants note, the Hakala court specifically rejected the notion that “curtilage” consists of “‘access rights to the entire area and reconveyance of the acreage actually utilized by [the plaintiff] in conjunction with’” his business operations.[27] Rather, the Hakala court chose to “apply the traditional definition of curtilage,” which is not nearly expansive enough to include a nearby airstrip such as that used by Swiss.[28]

Plaintiffs would have the Court read § 1613(c)(1) as requiring Native corporations to convey not only the types of property named in the statute, but also any land necessary for aerial access to that property. This requirement is nowhere to be found in the language of the statute itself. In interpreting a statute, the Court must first look at its plain language.[29] The Supreme Court has held that “‘[i[f a literal construction of the words of a statute be absurd, the act must be so construed as to avoid the absurdity.’”[30] The Court could only read § 1613 in the manner urged by Plaintiffs if any other reading would be absurd.

The statute as written does not lead to absurd results, primarily because Congress has specifically addressed the disposition of airports on Native land in § 1613(c)(4), which reads as follows:

[T]he Village Corporation shall convey to the Federal Government, State, or to the appropriate Municipal Corporation, title to the surface estate for airport sites, airway beacons, and other navigation aids as such existed on December 18, 1971, together with such additional acreage and/or easements as are necessary to provide related governmental services and to insure safe approaches to airport runways as such airport sites, runways, and other facilities existed as of December 18,1971[.][31]

Defendants argue that this provision shows that Congress provided only one possible treatment for “public airports” such as the airstrip in this case, which is to transfer them to a governmental body.[32] The Court agrees. A basic principle of statutory construction is that the specific prevails over the general.[33] Congress specifically addressed the disposition of “airports” in subsection (c)(4). To the extent that much of the Alaskan bush is accessible only through air service, Congress has provided a remedy to ensure that owners of § 1613(c)(1) allotments have a way to reach their property. Thus, the Court cannot read an additional, unspoken, remedy into the provisions of subsection (c)(1).

Plaintiffs argue that, because subsection (c)(4) mentions “airway beacons, and other navigation aids,” then “the ‘existing airport sites’ reference in Section 14(c)(4) is not to rudimentary, minimally-cleared bush ‘airstrips,’ but instead to the typical constructed and improved public airport with installed beacons, navigation aids, related services, and designated safe approach zones.”[34] First of all, the Court notes that subsection (c)(4) does not refer to “related services” provided by the airport. It refers to easements which are “necessary to provide related governmental services”.[35] Thus, it makes no sense for Plaintiffs to claim that subsection (c)(4) only covers an “improved public airport with . . . related services,” as if only full-service airports were included. The statute says no such thing. Likewise, there is no reference in the statute to “designated safe approach zones.”

In any event, the references in subsection (c)(4) to “airway beacons” and “other navigational aids” are terms of inclusion, not exclusion. By their own terms, they merely ensure that any subsection (c)(4) transfer of an airport include the land on which the appurtenant navigational aids sit. Certainly the airstrip is not what most people imagine when they think of an “airport.” However, it was this very airstrip that John Swiss once leased on the express condition that he “establish a public airport.”[36] There are many such “airports” in Alaska, and the Court will not presume that Congress inadvertently forgot to exclude them from coverage under § 1613(c)(4). Even if there are airstrips which do not fall under the definition of an “airport” for purposes of subsection (c)(4), the Court must conclude that an airstrip which was expressly maintained as a “public airport” in 1971 does fall within that definition.

The Court notes in passing that it cannot be said that Plaintiffs’ ownership of the Polly Creek homestead would be “worthless” to them if they do not receive title to the airstrip. There are ways for an Alaskan homesteader to gain access to his subsection (c)(1) lands even if the closest airstrip is on Native corporation land, whether by paying for an easement, through the acquiescence of the corporation, or by some other arrangement. Neither John Swiss nor Plaintiffs have held title or any leasehold interest in the airstrip since 1984. Yet Plaintiffs assert that they have “since 1949 used these lands as the base for their seasonal commercial fishing business and a seasonal campsite for their subsistence fishing and hunting activities.”[37] Apparently, their lack of ownership or leasehold interest in the airstrip has not led them to abandon the homestead.

Indeed, Plaintiffs’ counsel indicated at oral argument that Plaintiffs have continued to use the airstrip, although they have been “verbally admonished” not to do so by certain employees of Defendants. In the Court’s view, there is no reason why the parties cannot arrive at some reasonable accommodation which would allow Plaintiffs to use the airstrip with Defendants’ permission.

As a further aside, Plaintiffs’ counsel was quite correct in asserting that Knikatnu’s laches argument, asserted for the first time in its reply brief, should not be entertained because it was not raised in the original motion. The Court will not rule upon the laches issue, which is unrelated to Defendants’ other arguments for summary judgment.

The Ninth Circuit has held that “any ambiguity in a statute must be interpreted liberally in favor of the Native tribes.”[38] Given the plain language of § 1613, the Court will not read into the statute more rights for a subsection (c)(1) applicant than those expressly provided by Congress. The airstrip in this case has never been used for any of the purposes for which Congress has authorized conveyance under 43 U.S.C. § 1613(c)(1).

V. CONCLUSION

The airstrip near Plaintiffs’ Polly Creek homestead does not fit any of the purposes for which a party may request conveyance under 43 U.S.C. 1613(c)(1). It may be an “airport” which is transferrable to the State of Alaska under 43 U.S.C. 1613(c)(4), but Plaintiffs have not included a subsection (c)(4) claim in their complaint. For the foregoing reasons, the Court GRANTS Defendants’ Motion for Summary Judgment at Docket 15.

ENTERED at Anchorage, Alaska, this 13th day of September, 2010.
/s/ TIMOTHY BURGESS
United States District Judge

Nelson vs. Arviq, Inc.

Granting in Part and Denying in Part Motion to Dismiss

I. INTRODUCTION

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

II. BACKGROUND

A. Statutory Background

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

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

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

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

B. Procedural Background

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

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

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

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

III. LEGAL STANDARD

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

IV. DISCUSSION

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

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

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

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

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

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

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

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

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

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

V. CONCLUSION

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

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

Eklutna, Inc. vs. Municipality of Anchorage

Decision on Appeal

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

Points on Appeal

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

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

Hearing Officer’s Factual Findings

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

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

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

Analysis

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

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

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

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

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

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

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

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

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

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

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

Estoppel and Destruction of Exemption

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

Conclusion

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

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

Brian Shortell, Superior Court Judge

Ahtna, Inc. v. State of Alaska, Department of Natural Resources and Department of Transportation & Public Facilities

I. INTRODUCTION

The State claimed the right under Revised Statute 2477 (RS 2477) to clear land and permit the use of boat launches, camping sites, and day use sites within an alleged 100-foot right of way centered on a road on land belonging to an Alaska Native corporation. The Native corporation sued, arguing that its prior aboriginal title prevented the federal government from conveying a right of way to the State or, alternatively, if the right of way existed, that construction of boat launches, camping sites, and day use sites exceeded its scope.

After years of litigation and motion practice the superior court issued two partial summary judgment orders. It held as a matter of law that any preexisting aboriginal title did not disturb the State’s right of way over the land. It also concluded as a matter of law that the right of way was limited to ingress and egress. Because the superior court did not err when it granted the State’s motion regarding aboriginal title, we affirm that grant of partial summary judgment. But because the scope of a particular RS 2477 right of way is a question of fact, we reverse its conclusion as a matter of law that the State’s right of way is limited to ingress and egress.

II. FACTS AND PROCEEDINGS

A. The Dispute

Klutina Lake Road, known locally as the Brenwick-Craig Road, is a single-lane dirt road running approximately 25 miles along the Klutina River from Copper Center on the Richardson Highway to the outlet of Klutina Lake. Much of the road travels over land owned by Ahtna, Inc., the regional Alaska Native corporation.[1] The Ahtna Athabascan people have used and occupied the land for hundreds of years.

In 2007 the State cleared a swath of land along the road and removed one of the “permit fee stations” Ahtna had erected to collect fees for use of its land. The State claimed that it had established a 100-foot wide RS 2477 right of way for the cleared land “as early as 1899” and then again in the 1960s when the State “constructed a more official road.” The State claimed its RS 2477 right of way included a broad scope of activities, such as day use, camping, boat launching, parking, and fishing, as well as the right to travel over the road.

Ahtna objected to the State’s land clearing and destruction of Ahtna’s property. It disputed the existence and width of any State right of way, and it argued that any right of way that might exist permitted only ingress and egress. In early 2008 Ahtna filed a complaint for declaratory judgment and an injunction regarding the State’s alleged trespass on its land. Years of litigation ensued, culminating in the current appeal.

B. Statutory Background

Congress enacted RS 2477 in 1866 as part of the Lode Mining Act.[2] RS 2477 stated in its entirety: “The right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted.”[3] The federal government’s grant of rights of way under RS 2477 “was self-executing, meaning that an RS 2477 right-of-way automatically came into existence ‘if a public highway was established across public land in accordance with the law of Alaska.'”[4]

Congress repealed RS 2477 in 1976 but left existing rights of way intact.[5] In Alaska, however, authorization for RS 2477 rights of way ended no later than January 1969, when the Secretary of the Interior withdrew all public lands not already reserved.[6] Because the statute was self-executing and did not require rights of way to be recorded, the existence of an RS 2477 right of way is frequently a matter of controversy.[7]

When determining the existence and scope of an RS 2477 right of way over Native corporation land, courts must also be mindful of the Alaska Native Claims Settlement Act (ANCSA).[8] Congress enacted ANCSA in 1971 “to settle all land claims by Alaska Natives.”[9] ANCSA “extinguished all claims of the Native people of Alaska based on aboriginal title in exchange for 962.5 million dollars and 44 million acres of public land.”[10] Section 4 of ANCSA addresses aboriginal title:

(a) Aboriginal title extinguishment through prior land and water area conveyances
All prior conveyances of public land and water areas in Alaska, or any interest therein, pursuant to Federal law, and all tentative approvals pursuant to section 6(g) of the Alaska Statehood Act, shall be regarded as an extinguishment of the aboriginal title thereto, if any.

(b) Aboriginal title and claim extinguishment where based on use and occupancy; submerged lands underneath inland and offshore water areas and hunting or fishing rights included
All aboriginal titles, if any, and claims of aboriginal title in Alaska based on use and occupancy, including submerged land underneath all water areas, both inland and offshore, and including any aboriginal hunting or fishing rights that may exist, are hereby extinguished.

(c) Aboriginal claim extinguishment where based on right, title, use, or occupancy of land or water areas; domestic statute or treaty relating to use and occupancy; or foreign laws; pending claims
All claims against the United States, the State, and all other persons that are based on claims of aboriginal right, title, use, or occupancy of land or water areas in Alaska, or that are based on any statute or treaty of the United States relating to Native use and occupancy, or that are based on the laws of any other nation, including any such claims that are pending before any Federal court or the Indian Claims Commission, are hereby extinguished.[11]

C. Proceedings

Ahtna’s 2008 lawsuit sought a declaration that the land in question was “free and clear of an RS 2477 [right of way]” and an injunction to prevent the State from “further trespass upon Ahtna’s lands.” Ahtna acknowledged that the United States had a 60-foot-wide easement allowing public travel on the road, but argued that the State did not have an additional 100-foot-wide RS 2477 right of way. The State counterclaimed, seeking to quiet title to the claimed right of way and arguing that its RS 2477 right of way was superior to the federal one. The parties repeatedly postponed trial in the hope of reaching a settlement. In 2014 Ahtna filed a second amended complaint, which forms the basis for the present litigation.

In 2016 Ahtna moved for partial summary judgement, seeking a declaration that RS 2477 rights of way permit only ingress and egress. The State opposed. In May 2016 the superior court granted the motion. The court determined that “RS 2477, which granted rights-of-way for ‘highways over public lands,’ conveyed the right to pass over the land, and nothing more.”

Ahtna separately moved for summary judgment “to establish that there is no RS 2477 right-of-way along the Klutina Lake Road” because then-existing aboriginal title prevented conveyance of an RS 2477 right of way. The State opposed. In June 2018 the superior court denied Ahtna’s motion for summary judgement based on aboriginal title. The court assumed without deciding that “aboriginal title land was not public land before Congress enacted ANCSA and Ahtna possessed aboriginal title to the land at issue.”[12] It then concluded that ANCSA applied retroactively and that ANCSA extinguished Ahtna’s aboriginal title.

The parties eventually stipulated to entry of final judgment under Alaska Civil Rule 54(b). Ahtna stipulated to the existence of a 100-foot RS 2477 right of way, “50 feet on each side of the centerline of the current location of Klutina Lake Road,” and two additional 100-foot RS 2477 rights of way between the Klutina Lake Road and Klutina River, subject to its right to appeal on the basis of aboriginal title. Both parties dismissed claims, some with prejudice and some without prejudice. However, the parties “agree[d] to preserve the right to appeal legal issues already decided…on motions for summary judgment.”

Ahtna appeals the superior court’s denial of summary judgment concerning aboriginal title. Ahtna also requests that we confirm the court’s assumption “that the Ahtna Athabascan people held aboriginal title to the Klutina River Valley.” The State cross-appeals the court’s partial summary judgment order declaring that any right of way pursuant to RS 2477 is limited to the right of ingress and egress.

III. STANDARD OF REVIEW

“We review grants of summary judgement de novo.”[13] We review a court’s interpretation of statutes de novo and ‘apply our independent judgement, adopting the rule of law that is most persuasive in light of precedent, reason, and policy.'”[14]

IV. DISCUSSION

A. The Superior Court Did not Err By Denying Ahtna’s Motion For Summary Judgment Based On Aboriginal Title.

1.We need not decide whether the land at issue was public or non-public as a matter of law.

The superior court narrowed the issues by assuming without deciding that “aboriginal title land was not public land before Congress enacted ANCSA and Ahtna possessed aboriginal title to the land at issue.” On appeal Ahtna urges us to confirm the superior court’s assumption and explicitly hold that Ahtna possessed aboriginal title to the land surrounding Klutina Lake Road prior to the passage of ANCSA. But such a determination is not necessary. As discussed below, even if Ahtna did possess aboriginal title prior to ANCSA, passage of the statute retroactively validated the RS 2477 right of way. We therefore decline to decide the issue.[15] Like the superior court, we assume without deciding that Ahtna possessed aboriginal title to the land surrounding Klutina Lake Road prior to the passage of ANCSA.

2. The superior court’s decision that ANCSA precluded Ahtna’s aboriginal title arguments is consistent with precedent.

The superior court held that aboriginal title did not prevent an RS 2477 right of way because ANCSA § 4(a) “extinguish aboriginal title as a defense to pre-ANCSA conveyances of federal land encumbered by aboriginal title at the time of conveyance.” Ahtna does not claim that it still possesses aboriginal title over the land surrounding Klutina Lake Road. Instead, it argues that because it had aboriginal title when the federal government was offering RS 2477 rights of way, the land was not “public land” under RS 2477 and was therefore not eligible for an RS 2477 conveyance. Ahtna argues that because the land was never eligible under RS 2477, there was no conveyance, and ANCSA could not have validated a conveyance that did not occur.

Ahtna also claims that its argument is not precluded by ANCSA § 4(c), or which extinguishes “[a]ll claims…based on claims of aboriginal right, title, use, or occupancy of land or water areas in Alaska.”[16] According to Ahtna, § 4(c) precludes only claims, not defenses.

But we have previously rejected the same arguments. “The stare decisis doctrine rests on a solid bedrock of practicality; ‘no judicial system could do society’s work if it eyed each issue afresh in every case that raised it.'”[17] Because this case is not distinguishable from our prior cases addressing the same issues, we affirm the superior court’s order denying Ahtna’s motion for summary judgement based on aboriginal title.

a. Section 4(a) of ANCSA validated the RS 2477 right of way.

Assuming aboriginal title prevented a conveyance of a valid RS 2477 right of way for Klutina Lake Road, the first issue is whether Section 4(a) of ANCSA retroactively validated the RS 2477 right of way. Section 4(a) of ANCSA states: “All prior conveyances of public land and water areas in Alaska, or any interest therein, pursuant to Federal law, and all tentative approvals pursuant to section 6(g) of the Alaska Statehood Act, shall be regarded as an extinguishment of the aboriginal title thereto, if any.”[18]

Ahtna argues that Section 4(a) did not validate the conveyance of an RS 2477 right of way for Klutina Lake Road because aboriginal title prevented such a conveyance from occurring in the first place. The questions of whether ANCSA validated conveyances that would otherwise be barred by aboriginal title has already been answered in Paug-Vik, Inc. v. Wards Cove Packing Co.[19] In Paug-Vik a cannery sought and was granted a declaration confirming its right to use water from Seagull Lake.[20] Wards Cove Packing Company claimed that the 1930 appropriation of water by its predecessor in interest entitled it to water rights under 43 U.S.C. § 661.[21] Paug-Vik, Inc., the local Native corporation, protested the appropriation, arguing that “prior to ANCSA’s passage in 1971 Seagull Lake was used or occupied by the Natives of Naknek, thus conferring ‘aboriginal title’ on them and rendering the lake unavailable for appropriation by non-natives.”[22] When the appropriation was nonetheless granted, Paug-Vik appealed.[23]

We started our analysis in Paug-Vik by observing that “Congress has settled the question of whether conveyances of aboriginal title land under the federal public land laws are valid” because “Congress has declared in § 1603(a) of ANCSA that such conveyances are effective.”[24] After holding that water appropriation rights were conveyances covered by ANCSA, we concluded that such conveyances “therefore must be regarded as extinguishing aboriginal title to the same interest.”[25] We emphasized that our interpretation of ANCSA was consistent with ANCSA’s purpose, “which is that the extinguishment provisions of that section should be construed broadly to eliminate every claim resting on the assertion of aboriginal title.”[26] Our decision in Paug-Vik is directly applicable to this case.

Ahtna attempts to distinguish Paug-Vik by arguing that Paug-Vik addressed different statutory language and answered a different question by focusing on “the nature of the right acquired by an appropriation of water.” But Ahtna ignores Paug-Vik’s key holdings. While the main issues in Paug-Vik was whether the appropriation of water rights fell under the umbrella of § 1603(a) conveyance.[27] we also held that conveyances extinguish aboriginal title under ANCSA § 4(a).[28]

Ahtna’s attempt to distinguish the relevant statutory language is not persuasive. The statute at issue in Paug-Vik conveyed a right to water appropriation “[w]henever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes, have vested and accrued.”[29] there is no reason Ahtna’s theory — that aboriginal title meant there was no conveyance rather than an invalid conveyance curable by ANCSA — would not have applied in Paug-Vik. If that theory were correct, no conveyance could have occurred in Paug-Vik because aboriginal title would have prevented water rights from accruing in the first place. As the superior court observed, Ahtna’s reading of ANCSA § 4(a) “would only extinguish aboriginal title on land that was not encumbered by aboriginal title. Or, in other words, it would do nothing.”

Federal cases interpreting ANCSA also support the superior court’s holding. In United States v. Atlantic Richfield Co. the Ninth Circuit addressed trespass claims based on aboriginal title.[30] The Ninth Circuit held that ANCSA applied retroactively and “extinguished not only the aboriginal titles of all Alaska Natives, but also every claim ‘based on’ aboriginal title in the sense that the past or present existence of aboriginal title is an element of the claim.”[31] In Edwardsen v. Morton a federal district court rejected a challenge to pre-ANCSA conveyances despite recognizing that the conveyances were “void when granted.”[32] As the court explained, “Congress could constitutionally, and did in effect, give the State good title…by removing the only impediment to the validity of the approvals rather than by making a new conveyance of title.”[33] Because its decision was mandated by precedent, the superior court did not err when it decided that ANCSA § 4(a) retroactively validated the conveyance of an RS 2477 right of way for Klutina Lake Road.

b. ANCSA does not distinguish between claims and defenses.

Ahtna attempts to distinguish these earlier cases by arguing that ANCSA’s language applies only to affirmative claims, not defenses.[34] Ahtna points out that ANCSA § 4(c) refers to “claims” but argues that “[n]o court has ever held that ANCSA § 4(c) precludes a litigant from defending against an RS 2477 claim on the basis of…then-unextinguished aboriginal title.” But Paug-Vik made just such an argument when it used aboriginal title as a defense to a pre-ANCSA conveyance.[35] As the superior court noted, “[t]here is no meaningful distinction between the circumstances in Paug-Vik and this case.”

Ahtna supports its theory by citing Edwardsen, in which the court differentiated between “challenges to the validity of certain titles to land” and “claims for compensation for alleged trespasses.”[36] While it is true that Edwardsen interpreted ANCSA’s extinguishment of claims more narrowly than Atlantic Richfield, Edwardsen did not distinguish between defensive claims and affirmative claims. Instead, the Edwardsen court distinguished between trespass claims based on the loss of aboriginal title.[37] It rejected claims invoking aboriginal title to invalidate a conveyance.[38] Thus, even the Edwardsen court’s narrower interpretation of ANCSA would not support Ahtna’s theory. Because Ahtna’s argument that ANCSA extinguishes only affirmative claims has no support in the statute or precedent, the superior court did not err in rejecting that argument.

B. It was Error to Conclude As A Matter Of Law That The Klutina Lake Road RS 2477 Right Of Way Was Limited To Ingress And Egress.

The State cross-appeals, arguing that the superior court erred when it held the RS 2477 right of way is inherently “limited to ingress and egress, and cannot, as a matter of law, accommodate activities associated with travel in Alaska such as boat launching, camping, parking, and day use.” We agree in part: RS 2477 rights of way are limited to highway purposes, which are broader in scope than mere “ingress and egress” but narrower in scope than the State advocates. Because the superior court took such a narrow view of the RS 2477 right of way’s scope as a matter of law without actually considering the factual underpinning of each use the State proposed, we remand for further proceedings about specific uses consistent with the following discussion of relevant law.

RS 2477 was self-executing; a “right-of-way automatically came into existence ‘if a public highway was established across public land in accordance with'” state law.[39] Alaska recognizes RS 2477 rights of way through two means: “the public must use the land ‘for such a period of time and under such conditions as to prove that the grant has been accepted,’ or appropriate public authorities of the state must act in a way that clearly manifests their intention to accept the grant.”[40] After considerable litigation in the parties in this case stipulated that the Klutina Lake Road is a 100-foot wide RS 2477 right of way centered on the roadway.

RS 2477 rights of way are limited in scope.[41] The full text of the statute stated: “The right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted.”[42] “Highways” granted by RS 2477 are rights of ways synonymous with easements, not fee simple interests, and therefore create only a right of use.[43] Subject to the limitations inherent in the federal grant of a highway easement, the scope of the easement’s use is defined by, and occasionally limited by, state law.[44] The relevant state law is the law in effect when the offer of RS 2477 grants was withdrawn — not contemporary highway laws and regulations.[45] Federal Public Land Order 4582 withdrew public lands in Alaska and prevented the establishment of new or expanded RS 2477 rights of way after January 17, 1969.[46] Congress then preserved existing rights of way when it repealed RS 2477 on October 21, 1976.[47] The scope of RS 2477 highway easements in Alaska therefore had to be established by January 17, 1969.[48] In 1969 former AS 19.05.130(8) defined “highway” to include “a highway (whether included in primary or secondary systems), road, street, trail, walk, bridge, tunnel, drainage structure and other similar or related structure or facility, and right-of-way thereof,…whether operated solely inside the state or to connect with a Canadian highway, and any such related facility.”[49]

Although RS 2477 rights of way tend to be liberally construed such that “[w]hatever may be construed as a highway under State law is a highway under [RS 2477],” state law does not “override federal requirements or undermine federal land policy.”[50] For example, the Ninth Circuit Court of Appeals held that even though “Montana law in 1901 [allegedly] recognized a right to run utilities along a highway right of way,…Congress had adopted a federal rule that power transmission is not within the scope of an R.S. 2477 highway right of way and had excluded any implied borrowing a state law on this point.”[51] And the Tenth Circuit Court of Appeals has similarly recognized “that R.S. 2477 rights of way are limited to highway purposes, and do not encompass ancillary uses such as utility lines, notwithstanding state law to the contrary.”[52] We have previously construed RS 2477 grants to permit “only a right of use” as a right of way, not the construction of ancillary facilities such as a park.[53]

The legal concepts of “right of way” and “highway” in 1969 similarly suggest a relatively narrow scope for RS 2477 rights of way. Black’s Law Dictionary defined “right of way” as “a servitude imposed by law or by convention, and by virtue of which one has a right to pass on foot, or horseback, or in a vehicle, to drive beasts of burden or carts, through the estate of another.”[54] A “highway” was defined as 

[a]n easement acquired by the public in the use of a road or way for thoroughfare. A free and public roadway, or street; one which every person has the right to use. Its prime essentials are the right of common enjoyment on the one hand and the duty of public maintenance on the other.[55]

Black’s Law Dictionary also listed examples of highways: “carriage-ways, bridle-ways, foot-ways, bridges, turnpike roads, railroads, canals, ferries or navigable rivers.”[56]

The State urges us, based on Dillingham Commercial Co. v. City of Dillingham, to hold that RS 2477 rights of way include any use “consistent with public travel,” including boat launches, camping, and day use. The State’s quotation is correct, but Dillingham merely permitted an existing RS 2477 right of way across the servient estate to a beach for cargo loading to include access to a new loading dock that did not exist when the right of way was established and was not located on the servient estate; it does not support expanding the right of way’s scope to include uses other than travel-related activities.[57] In Dillingham we explicitly rejected the argument that an RS 2477 right of way allowed the government to “use the land for any purpose, such as a park.”[58] And although the State is correct that in Dickson v. State, Department of Natural Resources we disavowed any notion that historic use is relevant once an RS 2477 right of way is established, we did not address whether the right of way’s scope included uses inconsistent with relevant definitions of “highway.”[59]

Akin to typical right of way easements, where the holder is limited to reasonable use of the easement, the holder of an RS 2477 right of way is “authorized to make any use…reasonably necessary for the convenient enjoyment of the easement”[60] subject to the terms and “purposes for which the servitude was created.”[61] The State may maintain and modernize the road, but any expansions must be consistent with the scope of the federally granted right of way: as a highway defined and limited by relevant state of law.[62] For example, we recently affirmed a superior court’s determination that maintenance activities — such as “grading and compacting the road and plowing snow and other debris off the side of the road” — which caused an “[i]ncidental widening” of a right of way easement did not constitute unreasonable interference with the servient estate despite damage to the bordering “trees and brush.”[63]

Fact finding is necessary to determine which of the State’s proposed projects along Klutina Lake Road are reasonably necessary for and within the scope of a highway, as the term was used in 1969. This requires the superior court, within its discretion, to balance the interests of the servient and dominant estates.[64] In light of the length, condition, and purpose of the RS 2477 right of way, some of the State’s proposed projects may more reasonably relate to those factors than others. Projects such as occasional pull-outs for travelers to rest or a restroom facility may better fit within the scope of a 1969 highway than removing vegetation to provide river views or potential fishing sites. A boat ramp at the end of the road, like the dock in Dillingham, may be more reasonable than a series of ramps with associated parking lots along the length of the road. In short, the State must demonstrate that its proposed projects relate to facilitating highway transportation, i.e., that the projects are reasonably necessary for highway purposes as defined in 1969, not simply that the projects would be nice facilities along the highway. And the superior court must use its discretion to determine whether the State’s proposed projects would unreasonably interfere with Ahtna’s reasonable use of the land. Because the State has not had an opportunity to present its proposed projects to the court and litigate Ahtna’s opposition to those proposed projects, a remand for further proceedings on this aspect of the dispute is required.

V. Conclusion

 The superior court’s grant of partial summary judgment regarding aboriginal title is AFFIRMED. But its grant of partial summary judgment establishing that as a matter of law the scope of the RS 2477 right of way use is limited to ingress and egress is VACATED and REMANDED for further proceedings consistent with our decision.

Akiachak Native Community v. Salazar

MEMORANDUM OPINION

Four tribes of Alaska Natives and one individual Native brought this suit to challenge the Secretary of the Interior’s decision to leave in place a regulation that treats Alaska Natives differently from other native peoples. The challenged regulation governs the taking of land into trust under Section 5 of the Indian Reorganization Act, 25 U.S.C. § 465; it provides that, with one exception, the regulatory procedures “do not cover the acquisition of land in trust status in the State of Alaska.” 25 C.F.R. § 151.1. The plaintiffs argue that this exclusion of Alaska Natives — and only Alaska Natives — from the land-into-trust application process is void under 25 U.S.C. § 476(g), which nullifies regulations that discriminate among Indian tribes. The State of Alaska has intervened to argue that the differential treatment is required by the Alaska Native Claims Settlement Act (“ANCSA” or the “Claims Settlement Act”), which (on the State’s account) deprived the Secretary of the statutory authority to take most Alaska land into trust. The Secretary disagrees, but nonetheless seeks to justify the regulation by references to ANCSA. For the reasons explained below, the court concludes that the Secretary retains his statutory authority to take land into trust on behalf of all Alaska Natives, and that his decision to maintain the exclusion of most Natives from the land-into-trust regulation violates 25 U.S.C. § 476(g), which provides that contrary regulations “shall have no force or effect.” The court therefore grants summary judgment to the plaintiffs, and orders additional briefing on the question of the proper remedy.

I. BACKGROUND

The land claims of Alaska Natives remained unresolved for the first century of our history in Alaska. The Treaty of Cession, by which Russia conveyed Alaska to the United States, provided that “[t]he uncivilized tribes will be subject to such laws and regulations as the United States may, from time to time, adopt in regard to aboriginal tribes of that country.” Treaty of Cession, U.S.-Russia, art. 3, Mar. 30, 1867, 15 Stat. 542. When the Organic Act of 1884 established a civil government in Alaska, it also declared “[t]hat the Indians or other persons in said district [that is, the Territory of Alaska] shall not be disturbed in the possession of any lands actually in their use or occupation or now claimed to them.” Organic Act of 1884, § 8, 23 Stat. 24, 26. However, the establishment of “the terms under which such persons may acquire title to such lands” was “reserved for future legislation by Congress.” Id. The Supreme Court has explained that both the Organic Act of 1884 and the Act of June 6, 1900, 31 Stat. 321, were “intended… to retain the status quo” regarding the land claims of Alaska Natives “until further congressional or judicial action was taken.” Tee-Hit-Ton Indians v. United States, 348 U.S. 272, 278 (1955).

Congress enacted a series of laws providing land for Alaska Natives without resolving their claims of aboriginal right. A reservation was established by Congress in 1891 for the Metlakatla Indians, who had recently moved to Alaska from British Columbia. See Metlakatla Indians v. Egan, 369 U.S. 45, 48 (1962). In the year that followed, other reserves were established by executive order. See COHEN’S HANDBOOK OF FEDERAL INDIAN LAW § 4.07[3] [b] [iii], at 337-38 (Nell Jessup Newton ed., 2012); DAVID S. CASE & DAVID A. VOLUCK, ALASKA NATIVES AND AMERICAN LAWS 81-110 (3d ed. 2012) (both discussing the history of reservation policy in Alaska). While those reserves were being established, Congress enacted Alaska Native Allotment Act, Pub. L. No. 59-171, 34 Stat. 197 (1906), and the Alaska Native Townsite Act, Pub. L. No. 69-280, 44 Stat. 629 (1926). The Allotment Act allowed Alaska Natives to acquire title to as much as one hundred and sixty acres of land that they used and occupied, while the Townsite Act “provid[ed] for the patenting of lots within Native townsites.” United States v. Atlantic Richfield Co., 435 F Supp. 1009, 1015 (D. Alaska 1977), aff’d 612 F.2d 1132 (9th Cir. 1980). “Both acts placed restrictions on the title conveyed so that lands could not be alienated or taxed until… certain federally prescribed conditions were met.” CASE & VOLUCK at 113; see also Atlantic Richfield, 435 F. Supp. at 1015 (“Native townsite residents received a restricted deed, inalienable except by permission of the townsite trustee.”).

In 1934, Congress enacted the Indian Reorganization Act, Pub. L. No. 73-383, 48 Stat. 984. Section 5 of the IRA provided that:

The Secretary of the Interior is hereby authorized, in his discretion, to acquire through purchase, relinquishment, gift, exchange, or assignment, any interest in lands… within or without existing reservations, including trust or otherwise restricted allotments… for the purpose of providing land for Indians.

48 Stat. 985 (codified at 25 U.S.C. § 465). At the time of its enactment, Section 5 was inapplicable "to any of the Territories, colonies, or insular possessions of the United States," 48 Stat. 986 (codified at 25 U.S.C. § 473), but it was extended to the Territory of Alaska two years later, Act of May 1, 1936, Pub. L. No. 74-538, § 1, 49 Stat. 1250 (codified at 25 U.S.C. § 473a). That enactment also authorized the Secretary to designate reservations on certain Alaska lands. Id. § 2, 49 Stat. 1250-51. Seven reservations were established under that authority, see COHEN'S HANDBOOK § 4.07[3] [b] [iii], at 338, and three properties containing canneries were also taken into trust on behalf of Alaska Natives, AR 246 (Memorandum from Thomas L. Sansonetti, Solicitor, Department of the Interior ("Sansonetti Memo.") at 112 n.277 (Jan. 11, 1993)).

In 1971, Congress enacted the Alaska Native Claims Settlement Act, Pub. L. No. 92-203 § 2(b), 85 Stat. 688, “a comprehensive statute designed to settle all land claims by Alaska Natives,” Alaska v. Native Village of Venetie, 522 U.S. 520, 523 (1998). Congress declared its intention that,

the settlement should be accomplished rapidly, with certainty, in conformity with the real economic and social needs of Natives, without litigation, with maximum participation by Natives in decisions affecting their rights and property, without establishing any permanent racially defined institutions, rights, privileges, or obligations, without creating a reservation system or lengthy wardship or trusteeship, and without adding to the categories of property and institutions enjoying special tax privileges or to the legislation establishing special relationships between the United States Government and the State of Alaska[.]

ANCSA, § 2(b), 85 Stat. 688 (codified at 43 U.S.C. § 1601 (b)). To that end, the Claims Settlement Act "revoked 'the various reserves set aside... for Natives use' by legislative or Executive action, except for the Annette Island Reserve inhabited by the Metlakatla Indians, and completely extinguished all aboriginal claims to Alaska land." Venetie, 522 U.S. at 524 (citing ANCSA, § 4 and quoting id., § 19(a) (codified at 43 U.S.C. §§ 1603, 1618(a))). The terms of the extinguishment were as follows:

All aboriginal titles, if any, and claims of aboriginal title in Alaska based on use and occupancy… are hereby extinguished…

All claims against the United States, the State [of Alaska], and all other persons that are based on claims of aboriginal right, title, or occupancy of land or water areas in Alaska, or that are based on any statute or treaty of the United States relating to Native use and occupancy… are hereby extinguished.

ANCSA, § 4(b)-(c) (codified at 43 U.S.C. § 1603(b)-(c)). "In return, Congress authorized the transfer of $962.5 million in state and federal funds and approximately 44 million acres of Alaska land to state-chartered private business corporations that were to be formed pursuant to the statute; all off the shareholders of these corporations were required to be Alaska Natives." Venetie, 522 U.S. at 524 (citing ANCSA, §§ 6, 8, 14 (codified at 43 U.S.C. §§ 1605, 1607, 1613)). "The ANCSA corporations received title to the transferred land in fee simple, and no federal restrictions applied to subsequent land transfers by them." Id. The Alaska Native tribes did not receive either land or money in the settlement; rather, their members received stock in the Native-owned corporations that received settlement land and funds. In that way, ANCSA "attempted to preserve Indian tribes, but simultaneously attempted to sever them from the land; it attempted to leave them as sovereign entities for some purposes, but as sovereigns without territorial reach." Venetie, 522 U.S. at 526 (quoting Venetie, 101 F.3d 1286, 1303 (9th Cir. 1996) (Fernandez, J., concurring)).

ANCSA repealed the Allotment Act, although the Secretary retained the power to process pending applications. ANCSA, § 18(a) (codified at 43 U.S.C. § 1617(a)). Five years later, Congress and the President enacted the Federal Land Policy and Management Act of 1976 (“FLPMA”), Pub. L. No. 94-579, 90 Stat. 2743, which repealed both the Townsite Act and Section 2 of the Act of May 1, 1936, 49 Stat. 1250–51, which authorized the Secretary to establish reservations in Alaska. See FLPMA § 704(a), 90 Stat. 2792. FLPMA did not repeal Section 1 of the 1936 Act, 49 Stat. 1250 (codified at 25 U.S.C. § 473a), which (among other provisions) authorized the Secretary to take Alaska land into trust on behalf of Alaska Natives.

In the years after the Claims Settlement Act, the question arose whether the Secretary’s land-into-trust authority had survived ANCSA and FLPMA, or whether one or both of those statutes had withdrawn a portion of that power. In 1978, the Secretary proposed a regulation to govern the taking of land into trust; the proposed rule made no special mention of Alaska. See Land Acquisitions, 43 Fed. Reg. 32,311 (July 19, 1978). Several months after that proposed rule was published, the Associate Solicitor for Indian Affairs signed an opinion letter addressing the question of whether the Secretary could take former reservation land into trust. The Associate Solicitor concluded that, in light of the Claims Settlement Act, “it would . . . be an abuse of the Secretary’s discretion to attempt to use Section 5 of the IRA (which, along with §§ 1, 7, 8, 15, and 17 of the IRA still apply to Alaska pursuant to the unrepealed portion of the Act of May 1, 1936) to restore the former Venetie Reserve to trust status.” AR 3 (Memorandum from Thomas W. Fredericks, Associate Solicitor, Indian Affairs, Department of the Interior (“Fredericks Memo.”) at 3 (Sept. 15, 1978)). The Associate Solicitor explained that:

The intent of Congress [in ANCSA] to permanently remove all Native lands in Alaska from trust status is unmistakable. The declaration of policy states that “the settlement should be accomplished… without creating a reservation system or lengthy wardship or trusteeship, and without adding to the categories of property and institutions enjoying special tax privileges…” 43 U.S.C. § 1601(b).

In analyzing the declaration of policy, the Senate Report stated: “A major purpose of this Committee and the Congress is to avoid perpetuating in Alaska the reservation and the trustee system.” S. Rep. No. 405, 92[nd] Cong., 1st Sess. (1971) at 108. This theme was oft repeated in the floor debates. . . .

The structure and legislative history of Section 19 itself precludes the restoration of former reservations to trust status. Section 19 revokes all reservations (except for Metlakatla) and directs that the land be conveyed to the ANSCA village corporation, not to the IRA entities. It does not allow Natives to vote for continued trust status. . . .

Also significant is the repeal, in Section 704(a) of the Federal Land Policy and Management Act of 1976, 90 Stat. 2743, of Section 2 of the Act of May 1, 1936, 49 Stat. 1250, 25 U.S.C. § 496, which . . .  gave the Secretary the authority to designate certain lands in Alaska as Indian reservations. . . .

In conclusion, Congress intended permanently to remove from trust status all Native land in Alaska except allotments and the Annette Island Reserve.

Id. at 1-3; see also Sansonetti Memo. at 112 n.276, AR 246 ("In 1978, the Acting Solicitor accepted the conclusion of the Associate Solicitor, Division of Indian Affairs, that although § 5 of the IRA, 25 U.S.C. § 465 (authority to acquire lands in trust for Indians), was not repealed with respect to Alaska, in light of the clear expression of congressional intent in ANCSA not to create trusteeship or a reservation system, it would be an abuse of discretion for the Secretary to acquire lands in trust in Alaska for the Natives of Venetie and Arctic Village.")).

When the final land-into-trust regulation was published in 1980, its preamble noted that, during the notice-and-comment period “[i]t was… pointed out that the Alaska Native Claims Settlement Act does not contemplate the further acquisition of land in trust status, or the holding of land in such status, in the State of Alaska, with the exception of acquisitions for the Metlakatla Indian Community.” Land Acquisitions, 45 Fed. Reg. 62,034, 62,034 (Sept. 18, 1980). “[C]onsequently a sentence [was] added… to specify that the regulations do not apply, except for Metlakatla, in the State of Alaska.” Id. That sentence, which is the subject of this litigation, reads as follows: “These regulations do not cover the acquisition of land in trust status in the State of Alaska, except acquisitions for the Metlakatla Indian Community of the Annette Island Reserve or it[s] members.” Id. at 62,036 (presently codified at 25 C.F.R. § 151.1). The court will refer to this provision as the “Alaska exception,” as its effect is disputed here.

In 1994, three tribes of Alaska Natives petitioned the Secretary to revise the land-into-trust regulations to “include within [their] scope all federally recognized Alaska Native tribes.” AR 275 (Petition for Rulemaking at 1 (Oct. 11, 1994)). The Secretary put that petition out for notice and comment, describing it as a request that the Secretary “remove the portion of the existing regulation that prohibits the acquisition of land in trust status in the State of Alaska for Alaska Native villages other than Metlakatla.” Land Acquisitions, 60 Fed. Reg. 1,956, 1,956 (Jan. 5, 1995).

Although the Secretary proposed a revision to the land-into-trust regulation in 1999, he noted that “[t]he proposed regulations would… continue the bar against taking Native land in Alaska in trust.” Acquisition of Title to Land in Trust, 65 Fed. Reg. 17,574, 17,578 (Apr. 12, 1999). The Secretary explained that, “[t]he regulatory bar to acquisition of title in trust in Alaska in the original version of these regulations was predicated on an opinion of the Associate Solicitor, Indian Affairs… which concluded that the Alaska Native Claims Settlement Act (ANCSA) precluded the Secretary from taking land into trust for Natives in Alaska (again, except for Metlakatla). Although that opinion has not been withdrawn or overruled, we recognize that there is a credible legal argument that ANCSA did not supersede the Secretary’s authority to take land into trust in Alaska under the IRA.” Id. at 17,577-78 (citations omitted). The Secretary noted that “if land were taken in trust by the Secretary, such trust land then would qualify as Indian country and an Alaskan tribe would have all the powers that pertain within Indian country” and invited “comment on the continued validity of the Associate Solicitor’s opinion and issue raised by the petition noticed at 60 FR 1956 (1995).” Id. at 17,578.

In 2001, the Secretary published a final rule and his Solicitor withdrew the Associate Solicitor’s opinion. The Solicitor announced that although “the Associate Solicitor for Indian Affairs concluded that the Alaska Native Claims Settlement Act (ANCSA) precludes the Secretary from taking land in trust for Alaska Natives except for members of the Metlakatla Indian Community… I have concluded that there is substantial doubt about the validity of the conclusion reached in the 1978 Opinion.” AR 619 (Memorandum from John Leshy, Solicitor, Department of the Interior (“Leshy Memo.”) at 1 (Jan. 16, 2001)). The Solicitor explained his conclusion as follows:

Among other things, the Associate Solicitor found “significant” that in 1976 Congress repealed section 2 of the Indian Reorganization Act (IRA). That section had extended certain provisions of the IRA to Alaska, and had given the Secretary the authority to designate certain lands in Alaska as Indian reservations. See U.S.C. § 704(a), 90 Stat. 2743, repealing 49 Stat. 1250, 25 U.S.C 496. The 1978 Opinion gave little weight to the fact that Congress had not repealed section 5 of the IRA, which is the generic authority by which the Secretary takes Indian land into trust, and which Congress expressly extended to Alaska in 1936. See 25 U.S.C. § 473a. The failure of Congress to repeal that section, when it was repealing others affecting Indian status in Alaska, five years after Congress enacted the Alaska Native Claims Settlement Act in 1971, raises a serious question as to whether the authority to take land in trust in Alaska still exists…

Because of my substantial doubt about the validity of the conclusion in the 1978 Opinion, and in order to clear the record so as not to encumber future discussions over whether the Secretary can, as a matter of law, and should, as a matter of policy, consider taking Native land in Alaska into trust, I am hereby rescinding the Associate Solicitor’s 1978 Opinion.

Leshy Memo. at 1-2, AR 619-20. Although that opinion was withdrawn, the "Department... in its final Part 151 regulations... decided in its sound discretion to continue to place the bar against taking Native land in Alaska into trust (other than Metlakatla)." AR 620. The preamble to the revised regulation announced that.

the position of the Department has long been, as a matter of law and policy, that Alaska native lands ought not to be taken in trust. Therefore, the Department has determined that the prohibition in the existing regulations on taking Alaska lands into trust (other than Metlakatla) ought to remain in place for a period of three years during which time the Department will consider the legal and policy issues involved in determining whether the Department ought to remove the prohibition on taking Alaska lands into trust. If the Department determines that the prohibition on taking lands into trust in Alaska should be lifted, notice and comment will be provided.

Acquisition of Title to Land in Trust, 66 Fed. Reg. 3,452, 3,454 (Jan. 16, 2001). The revised regulation amended the "prohibition on taking Alaska lands into trust," id., to read, "We will not accept title to land in trust in the State of Alaska, except for the Metlakatla Indian Community of the Annette Island reserve of Alaska or its members," id. at 3,460 (to be codified at 25 C.F.R. § 151.3(c)). In proposing a nearly-identical amendment, the Secretary had explained that the revised language "would make no change in the current regulations and would continue the bar against taking Native land in Alaska in trust." Acquisition of Title to Land in Trust, 65 Fed. Reg. at 17,578.

After delaying its effectiveness several times, the Secretary withdrew the revised land-into-trust rule later that same year. See Acquisition of Title to Land in Trust, 66 Fed. Reg. 56,608, 56, 609 (Nov. 9, 2001). This suit followed.

II. LEGAL STANDARD

 “[W]hen a party seeks review of agency action under the APA, the district judge sits as an appellate tribunal. The ‘entire case’ on review is a question of law,” Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001), and the “complaint, properly read… presents no factual allegations, but rather only arguments about the legal conclusion to be drawn about the agency action,” Marshall Cnty. Health Care Auth. v Shalala, 988 F.2d 1221, 1226 (D.C. Cir. 1993); accord Rempfer v. Sharfstein, 583 F.3d 860, 865 (D.C. Cir. 2009); Univ. Med. Ctr. of S. Nev. v. Shalala, 173 F.3d 438, 440 n. 3 (D.C. Cir. 1999); James Madison Ltd. v. Ludwig, 82 F.3d 1085, 1096 (D.C. Cir. 1996). The district court’s review “is based on the agency record and limited to determining whether the agency acted arbitrarily or capriciously,” Rempfer, 583 F.3d at 865, “or otherwise not in accordance with law,” 5 U.S.C. § 706(2) (A), or another statutory standard.

III. ANALYSIS

A. Statutory Authority to Take Alaska Land Into Trust.

Despite the length and complexity of the history recounted above, the legal questions in this case are relatively straightforward. The first question is whether the Secretary still possesses the statutory authority to take land into trust for the benefit of Alaska Natives outside of Metlakatla.[1] Alaska land-into-trust authority was conferred in 1936, Act of May 1, 1936, § 1, 49 Stat. 1250 (codified at 25 U.S.C. § 473a), along with the authority to create Alaska reservations, id. § 2, 49 Stat. 1250-51. The reservation authority was repealed by FLPMA in 1976, see FLPMA § 704(a), 90 Stat, 2792, but the land-into-trust authority has not been explicitly repealed. And unlike some other claims settlement acts, ANCSA did not explicitly revoke the Secretary’s land-into-trust authority. Cf. Maine Indian Claims Settlement Act of 1980, Pub. L. No. 96-420, § 5(e), 94 Stat. 1785, 1791 (codified at 25 U.S.C. § 1724(e)) (“Except for the provisions of this subchapter, the United States shall have no other authority to acquire lands or natural resources in trust for the benefit of Indians or Indian nations, or tribes, or bands of Indians in the State of Maine.”).

The plaintiffs argue that, absent the explicit repeal of the Secretary’s Alaska land-into-trust authority – either by an amendment to the 1936 Act or a provision of the sort found in the Maine Claims Settlement Act – that authority should be understood to have survived ANCSA. After many ambiguous pronouncements and years of internal debate, the Secretary now agrees. Compare Fredericks Memo. at 3, AR 3 (“Congress intended permanently to remove from trust status all Native land in Alaska except allotments and the Annette Island Reserve.”) and Leshy Memo. at 1, AR 619 (concluding that there is a “serious question as to whether the authority to take land in trust in Alaska still exists”) with Defs.’ Reply [Dkt. #67] at 1-2 (arguing that “the Secretary… has discretionary authority to take Indian lands into trust status in the State of Alaska” and that ANCSA and FLPMA “have not removed the Secretary’s discretionary authority to take Indian lands into trust status in the State of Alaska”). Although “[t]he Secretary is not estopped from changing a view she believes to have been grounded upon a mistaken legal interpretation,” the Supreme Court has held that “the consistency of an agency’s position is a factor in assessing the weight that position is due.” Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 417 (1993); see also United States v. Mead Corp., 533 U.S. 218, 228 (2001) (“The fair measure of deference to an agency administering its own statute has been understood to vary with circumstances, and courts have looked to the… agency’s… consistency…”) (footnotes omitted). “An agency interpretation of a relevant provision which conflicts with the agency’s earlier interpretation is ‘entitled to considerably less deference’ than a consistently held agency view.” INS v. Cardoza-Fonseca, 480 U.S. 421, 446 n.30 (1987) (quoting Watt v. Alaska, 451 U.S. 259, 273 (1981)). For that reason, the court will accord the Secretary’s views on the question of his statutory authority only “the weight derived from their ‘power to persuade.'” Landmark Legal Found. v. IRS, 267 F.3d 1132, 1136 (D.C. Cir. 2001) (quoting, among other things, Skidmore v. Swift & Co., 323 U.S. 134, 140 (1994)).

The State of Alaska takes the position that the Claims Settlement Act implicitly repealed the Secretary’s statutory authority to take Alaska land into trust outside of Metlakatla. “While a later enacted statute… can sometimes operate to amend or even repeal an earlier statutory provision… ‘repeals by implication are not favored’ and will not be presumed unless the ‘intention of the legislature to repeal [is] clear and manifest.'” Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 662 (2007) (quoting Watt v. Alaska, 451 U.S. 259, 267 (1981)) (brackets in original). Because of this “cardinal rule” of statutory construction, Morton v. Mancari, 417 U.S. 535, 549 (1974) (quoting Posadas v. Nat’l City Bank, 296 U.S. 497, 503 (1936)), a court “will not infer a statutory repeal ‘unless the later statute “expressly contradict[s] the original act”‘ or unless such a construction ‘is absolutely necessary… in order that [the] words [of the later statute] shall have any meaning at all,'” Nat’l Ass’n of Home Builders, 551 U.S. at 662 (quoting Traynor v. Turnage, 485 U.S. 535, 548 (1988), which quotes Radzanower v. Touche Ross & Co., 526 U.S. 148, 153 (1976), which in turn quotes THEODORE SEDGWICK, THE INTERPRETATION AND CONSTRUCTION OF STATUTORY AND CONSTITUTIONAL LAW 98 (2d ed. 1874)) (alterations in original); see also Hunter v. FERC, 2013 WL 1003666, at *5 (D.C. Cir. Mar. 15, 2013) (noting the “strong presumption against implied repeals”); Fogg v. Gonzales, 492 F.3d 447, 453 (D.C. Cir. 2007) (applying the “interpretive norm against implied repeals”).

The State points first to ANCSA’s extinguishment of “[a]ll claims against the United States, the State [of Alaska], and all other persons that are based on claims of aboriginal right, title, use, or occupancy of land… or that are based on any statute or treaty of the United States relating to Native use and occupancy.” ANCSA, § 4(c) (codified at 43 U.S.C. § 1603(c)). If a petition to have Alaska land taken into trust is indeed such a “claim,” then ANCSA forecloses the Secretary’s authority to grant it. But, as the plaintiffs argue,[2] petitions to have land taken into trust are not “claims,” because to grant or deny those petitions is within the discretion of the Secretary, see 25 U.S.C. § 465, and a “claim” is necessarily an assertion of right, see Orenberg v. Thecker, 143 F.2d 375, 377 n.6 (D.C. Cir. 1944) (“‘Claim,’ in its primary meaning, is used to indicate the assertion of an existing right. In its secondary meaning, it may be used to indicate the right itself.”) (internal quotation marks omitted); BLACK’S LAW DICTIONARY 281-82 (9th ed. 2009) (defining “claim” as “[t]he assertion of an existing right”). Evidence from the legislative history of ANCSA indicates that Congress understood the word in this way.[3] And that the Claims Settlement Act speaks of “claims against the United States, the State [of Alaska], and all other persons,” ANCSA, § 4(c) codified at 43 U.S.C. § 1603(c)) (emphasis added), strengthens the conclusion by emphasizing that a claim is necessarily adverse to the interests of another party. Moreover, the fact that ANCSA included a separate, explicit provision repealing the Allotment Act, see id. § 18(a) (codified at 43 U.S.C. § 1617(a)), which would have been unnecessary if Congress understood ANCSA § 4(c) to “extinguish all claims by Alaska Natives, as Alaska Natives, to land in Alaska, whether the claim originated from aboriginal title… or was based on a statutory property right,” as the State has argued, Defs.’ Mot. [Dkt. # 76] at 26, suggests that Congress did not understand ANCSA’s extinguishment of claims to sweep as broadly as the State would have it. (The subsequent, explicit repeal of the Townsite Act and section 2 of the 1936 Act, see FLMPA, § 704(a), 90 Stat. 2792, would have been similarly redundant under the State’s interpretation.) And, finally, the State’s position would require the court to conclude that ANCSA eliminated the Secretary’s authority to take land in trust for the benefit of Metlakatla Indians, whose land claims were extinguished along with all other claims by Alaska Natives. If a petition to have land taken into trust is, as the State argues, a “claim[] against the United States… based on [a] statute or treaty of the United States relating to Native use and occupancy,” ANCSA, § 4(c) (codified at 43 U.S.C. § 1603(c)), then Metlakatlans are barred from submitting such petitions. But not even the State believes that that is true.

The State does not argue with any particular force that petitions to have land taken into trust are “claims” within the usual meaning of that word, and the court concludes that, because they are not, the Secretary’s authority to consider them is unaffected by ANCSA § 4(c).

The State turns to ANCSA’s declaration of congressional purpose, which indicates that “the settlement should be accomplished… without establishing any permanent racially defined institutions, rights, privileges, or obligations, without creating a reservation system or lengthy wardship or trusteeship, and without adding to the categories of property and institutions enjoying special tax privileges.” Id. § 2(b) (codified at 43 U.S.C. § 1601 (b)). To that end, ANCSA lands were conveyed to village and to regional corporations in fee simple. See Venetie, 522 U.S. at 524. Alaska Native tribes received neither land nor money in settlement, which disestablished all reservations except for Metlakatla. See ANCSA, § 19(a) (codified at 43 U.S.C. § 1618(a)). For the Secretary to now take trust title on behalf of Alaska Natives would, the State argues, create precisely the “lengthy… trusteeship” that ANCSA was designed to avoid. The State argues from both the structure of ANCSA, which converted large tracts of trust land into fee simple ownership while creating no new trust land, and the intention of its drafters and proponents,[4] many of whom associated trust land with paternalism and dependency,[5] to the conclusion that the Claims Settlement Act necessarily prevents the Secretary from taking additional Alaska land into trust.[6]

This statement of purpose could only effect an implicit repeal if it was an “irreconcilable conflict” with the Secretary’s land-into-trust authority, Branch v. Smith, 538 U.S. 254, 273 (2003) (quoting Posadas, 296 U.S. at 503), or to infer a repeal of that authority was “absolutely necessary in order that the words of the later statute shall have any meaning at all,” Nat’l Ass’n of Home Builders, 551 U.S. at 662 (brackets, ellipses, and internal quotation marks omitted). Although the Claims Settlement Act “sought to end the sort of federal supervision over Indian affairs that had previously marked federal Indian policy,” Venetie, 522 U.S. at 523-24, the terms of the settlement are “capable of co-existence” with the power to take Alaska land into trust, see Traynor, 485 U.S. at 548 (“The courts are not at liberty to pick and choose among congressional enactments, and when two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective.” (quoting Morton v. Mancari, 417 U.S. 535, 551 (1974)). There may be a tension between ANCSA’s elimination of most trust property in Alaska[7] and the Secretary’s authority to create new trust land, but a tension is not an “irreconcilable conflict.”[8] It is perfectly possible for land claims to be settled by transferring land and money to tribal corporations, while the Secretary retains the discretion – but not the obligation – to take additional lands (or, perhaps, those same transferred lands) into trust. Although ANCSA instructed that “the settlement should be accomplished… without creating a… lengthy… trusteeship,” ANCSA, § 2(b) (codified at 43 U.S.C. § 1601(b)), the fact that the settlement would not create a trusteeship does not necessarily mean that it prohibits the creation of any trusteeship outside of the settlement. Because it is possible to give effect to both ANCSA and the statute giving the Secretary land-into-trust authority in Alaska, it is the court’s obligation to do so.[9]

The text of ANCSA and its structure, read alongside FLPMA, suggest that the Secretary retains the authority to take Alaska land into trust. Congress explicitly – and, on the State’s view, redundantly – repealed the Allotment Act, the Townsite Act, and, the Secretary’s authority to establish reservations in Alaska. Congress did not explicitly eliminate the grant of authority to take Alaska land into trust. If the Secretary’s authority to take land into trust had been implicitly repealed, it would follow that his authority to establish reservations was repealed by an even stronger implication. But Congress felt the need to explicitly repeal the Secretary’s reservation authority in FLPMA. And the simple fact that the statute conferring land-into-trust authority in Alaska survives is a strong indication that the Secretary’s authority to take Alaska land into trust also survives.[10]

 From the weight of the textual and structural evidence, and the strength of the presumption against implicit repeals, the court concludes that ANCSA left intact the Secretary’s authority to take land into trust throughout Alaska and turns to the effect and legality of his land-into-trust regulations.[11]

B. Regulatory Authority

i. Effects of 25 C.F.R. § 151.1

The land-into-trust regulations state that they “do not cover the acquisition of land in trust status in the State of Alaska, except acquisitions for the Metlakatla Indian Community of the Annette Island Reserve or it[s] members.” 25 C.F.R. § 151.1. The Secretary argues[12] that this Alaska exception does not prohibit him from exercising his discretionary authority to take Alaska land into trust outside of Metlakatla, but only bars him from doing so by means of the regulations that he has promulgated. On the Secretary’s account, the Alaska exception means precisely what it says, and the court should not interpret “do not cover” to mean anything more than that. Yet he also admits that “there are no procedures in place that would allow the Secretary to consider… a request” to take Alaska lands into trust. Def.’ Supplemental Br. [Dkt. #101] at 11, and suggests that he would only consider such a request if regulations were “amended or promulgated to provide a process and decisional criteria for the exercise of the discretion to acquire land in trust for Alaska Natives,” id. at 10.

The court “owe[s] the Secretary ‘substantial deference'” for his interpretation of his own regulation. Tozzi v. U.S. Dep’t of Health & Human Servs., 271 F.3d 301, 311 (D.C. Cir. 2001) (quoting Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994)). To adopt his reading, the court “need not find that the agency’s construction is the only possible one, or even the one that the court would have adopted in the first instance.” Id. (quoting Wyo. Outdoor Council v. United States Forest Serv., 165 F.3d 43, 52 (D.C. Cir. 1999)); see also Thomas Jefferson, 512 U.S. at 512 (“Our task is not to decide which among several competing interpretations best serves the regulatory purpose.”). Instead, the court must “give the agency’s interpretation ‘controlling weight,'” Tozzi, 271 F.3d at 311 (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945)), “unless an ‘alternative reading is compelled by the regulation’s plain language or by other indications of the Secretary’s intent at the time of the regulation’s promulgation,'” id. (quoting Consolidation Coal Co. v. Fed. Mine Safety & Health Review Comm’n, 136 F.3d 819, 822 (D.C. Cir. 1998)) (internal quotation marks and citation omitted in original); accord Thomas Jefferson, 512 U.S. at 512, Gardebring v. Jenkins, 485 U.S. 415, 430 (1988).

The mere fact that “the Secretary’s interpretation” of a regulation is first announced “in the form of a legal brief… does not… make it unworthy of deference.” Auer v. Robbins, 519 U.S. 452, 462 (1997); see also Nat’l Wildlife Fed’n v. Browner, 127 F.3d 1126, 1129 (D.C. Cir. 1997) (“The mere fact that any agency offers its interpretation in the course of litigation does not automatically preclude deference to the agency.”). As the D.C. Circuit has explained, “[t]here are at least three preconditions for applying this so-called Auer deference.” Drake v. FAA, 291 F.3d 59, 68 (D.C. Cir. 2002). One precondition is that “there must be ‘no reason to suspect that the interpretation does not reflect the agency’s fair and considered judgment on the matter in question.'” Id. (quoting Auer, 519 U.S. at 462); see also Bigelow v. Dep’t of Defense, 217 F.3d 875, 878 (D.C. Cir. 2000). “In conducting this inquiry,” a court must “consider whether the agency has ‘ever adopted a different interpretation of the regulation or contradicted its [current] position….'” Drake, 291 F.3d at 69 (quoting Nat’l Wildlife, 127 F.3d at 1129).

When the Secretary promulgated 25 C.F.R. § 151.1, he explained that the Alaska exception had been added to the regulation after it was “pointed out that the Alaska Native Claims Settlement Act does not contemplate the further acquisition of land in trust status, or the holding of land in such status, in the State of Alaska, with the exception of acquisitions for the Metlakatla Indian Community.” Land Acquisition, 45 Fed. Reg. 62,034. Since that time, he has said that “the current… regulations bar the acquisition of trust title in land in Alaska, unless an application for such acquisition is presented by the Metlakatla Indian Community or one of its members.” Acquisition of Title to Land in Trust, 64 Fed. Reg. at 17,577; see also Acquisition of Title to Land in Trust, 66 Fed. Reg. at 3,454 (discussing “the bar in the existing regulations to the acquisition of trust title in land in Alaska (other than for the Metlakatla Indian Community of its members)”). He has also referred to this bar as a “prohibition.” Acquisition of Title to Land in Trust, 66 Fed. Reg. at 3,454 (discussing “the prohibition in the existing regulations on taking Alaska lands into trust (other than Metlakatla)”); see also Land Acquisitions, 60 Fed. Reg. at 1,956 (referring to 25 C.F.R. § 151.1 as “the portion of the existing regulation that prohibits the acquisition of land in trust status in the State of Alaska for Alaska Native villages other than Metlakatla”). Finally, when the Secretary promulgated the revised (and since withdrawn) land-into-trust regulations, he amended the Alaska exception to read, “We will not accept title to land in trust in the state of Alaska, except for the Metlakatla Indian Community of the Annette Island reserve of Alaska or its members.” Acquisition of Title to Land in Trust, 66 Fed. Reg. at 3,460 (to be codified at 25 C.F.R. § 151.3(c)). In proposing the revision, he explained that this new language “would make no change in the current regulations.” Acquisition of Title to Land in Trust, 64 Fed. Reg. at 17,578.

The position that the Secretary has taken here – that the Alaska exception does not prohibit him from taking Alaska land into trust outside of Metlakatla – is contradicted both by evidence of his understanding at the time that the exception was promulgated, and by his own repeated descriptions of the exception as a “bar” or a “prohibition.” In these circumstances, the court cannot defer to the Secretary’s interpretation. See Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 213 (1988) (“Deference to what appears to be nothing more than an agency’s convenient litigation position would be entirely inappropriate.”).

The Alaska exception represents the Secretary’s considered judgment that he will not take Alaska land into trust outside of Metlakatla, as his repeated characterizations and the withdrawn regulation make clear. Whether this judgment can be accurately described as a “bar” is, finally, beside the point. The question is whether it is legally valid.

ii. Legality of 25 C.F.R. § 151.1

The plaintiffs argue that the Alaska exception is “not in accordance with law,” 5 U.S.C. § 706(2)(A), because it violates 25 U.S.C. § 476(g), which provides:

Any regulation or administrative decision or determination of a department or agency of the United States that is in existence or effect on May 31, 1994, and that classifies, enhances, or diminishes the privileges and immunities available to a federally recognized Indian tribe relative to the privileges and immunities available to other federally recognized tribes by virtue of their status as Indian tribes shall have no force or effect.

25 U.S.C. § 476(g). The plaintiffs' argument is straightforward: the Alaska exception is a regulation that diminishes the privileges of non-Metlakatlan Alaska Natives relative to all other Indian tribes, by providing that the Secretary will not consider their petitions to have land taken into trust. It is therefore void by the plain text of 25 U.S.C. § 476(g).

The Secretary makes two attempts to counter this argument. First, he notes that 25 U.S.C. § 476(g) was enacted in response to congressional disapproval of the Secretary’s interpretation of Section 16 of the Indian Reorganization Act, which concerns tribal elections, and not in response to any concerns over Section 5, which provides the general grant of land-into-trust authority. See 140 Cong. Rec. 11,234 (1994) (statement of Sen. John McCain) (“The purpose of the amendment is to clarify that section 16 of the Indian Reorganization Act was not intended to authorize the Secretary of the Department of the Interior to create categories of federally recognized Indian tribes.”). That is true enough, but 25 U.S.C. § 476(g) plainly applies to “[a]ny regulation” that violates its prohibition. Congress commonly enacts statutes that address more than the precise concern that gave rise to them, and courts should “not resort to legislative history to cloud a statutory text that is clear.” Ratzlaf v. United States, 510 U.S. 135, 147-48 (1994); accord Davis v. Michigan Dep’t of Treasury, 489 U.S. 803, 808 n.3 (1989) (“Legislative history is irrelevant to the interpretation of an unambiguous statute.”). Nothing in the text of 25 U.S.C. § 476(g) suggest that it is limited in the way that the Secretary suggests, and the court will not read such a limitation into the statute.

The Secretary’s second argument is that 25 U.S.C. § 476(g) only prohibits discrimination between “similarly situated” tribes, and, Alaska Natives are not “similarly situated” to any other tribes because of the Claims Settlement Act. But “similarly situated” appears nowhere in the statutory text, and the Secretary cannot invent a limitation on the statute any more than he could import one from the public statements of individual legislators. “[W]here, as here, the statute’s language is plain, ‘the sole function of the courts is to enforce it according to its terms.'” United States v. Ron Pair Enterps., Inc. 489 U.S. 235, 241 (1989) (quoting Caminetti v. United States, 242 U.S. 470, 485 (1917)); Hercules Inc. v. EPA, 938 F.2d 276, 281 (D.C. Cir. 1991) (same).

The Secretary does not deny that his regulation diminishes the privileges available to tribes of Alaska Natives (except for the Metlakatlans) relative to the “privileges… available to all other federally recognized tribes by virtue of their status as Indian tribes.” 25 U.S.C. § 476(g). Instead he asks the court to adopt limiting constructions that have no basis in the statutory text. But a law “is not susceptible to a limiting construction” when “its language is plain and its meaning unambiguous.” City of Houston v. Hill, 482 U.S. 451, 468 (1987). The Secretary offers no other arguments, and the challenged regulation shall therefore “have no force or effect.” 25 U.S.C. § 476(g).

The court will order briefing as to the scope of the remedy in this case: whether it is only the Alaska exception that is deprived of “force or effect,” or whether some larger portion of the land-into-trust regulation must fall.

IV. CONCLUSION

For the reasons set out above, the plaintiffs’ motions for summary judgment will be granted, and the State’s and the Secretary’s motions will be denied. An order for additional briefing on the question of the appropriate remedy will follow.

Koniag, Inc. vs. Koncor Forest Resource Management Company et al.

In Tyonek Native Corp. v. Cook Inlet Region, Inc., 853 F.2d 727 (9th Cir.1988), we held that rock, sand, and gravel are part of the subsurface estate in dually owned lands conveyed to native regional corporations under the Alaska Native Claims Settlement Act, and that village corporations that own the surface have no right to these materials for the purpose of commercial extraction and sale. We left open, however, the question whether a village corporation has any right to use rock, sand, and gravel on site, incidental to the enjoyment of its surface estate. That question is now before us. We conclude that when there is no other practical source for these materials, the subsurface owner on these dually owned lands may not unreasonably deny the surface owner access to rock, sand, and gravel necessary for surface development.

I

Congress enacted the Alaska Native Claims Settlement Act (ANCSA), 43 U.S.C. section 1601 et seq., to settle, through grants of a combination of land and money, all “claims by Natives of Alaska.” H.R.Rep. No. 92-523, 92d Cong., 1st Sess. 3, reprinted in 1971 U.S.C.C.A.N. 2193 (hereinafter H.R.Rep. 92- 523). To administer this land and money, the state was divided into twelve geographic regions, and the Natives within each region became shareholders in a regional corporation organized under Alaska law. 43 U.S.C. section 1606. Additionally, each of approximately 200 Native villages was required to form a village corporation with its villagers as shareholders. 43 U.S.C. section 1607.

The United States patented to the village corporations the surface estate in approximately 22 million acres of land. 43 U.S.C. sections 1611, 1613 (1978). The underlying subsurface estate was patented to the appropriate regional corporation. Id. Lands divided in this way are referred to as “dually owned lands.” Tyonek, 853 F.2d at 728. The regional corporations also received both the surface and subsurface estate in an additional 16 million acres. 43 U.S.C. section 1611(c). These wholly owned lands are referred to as “fee lands.” Tyonek, 853 F.2d at 728.

Koncor Forest Resource Management Company is a partnership whose general partners are the wholly owned subsidiaries of four Native village corporations. Two of Koncor’s partners hold title to surface estates on Afognak Island, south of Anchorage, Alaska, and have assigned to Koncor their rights to the timber on that land, “and all rights necessary to harvest the timber.”[1] Koniag is the regional corporation that holds title to the subsurface including rock, sand, and gravel underlying Koncor’s timber. Since it began harvesting timber over ten years ago, Koncor has used Koniag’s rock[2] for road building and other construction connected with its logging operations. Despite Koniag’s repeated demands, Koncor consistently has refused to pay for the rock it uses.

In 1988, Koniag brought this action in federal district court, seeking an injunction ordering Koncor to stop using rock except on terms and conditions acceptable to Koniag, and seeking damages for the rock Koncor already had used. Koncor counterclaimed, seeking, inter alia, a declaration that it has a right to use Koniag’s rock to the extent necessary to harvest its timber, without payment to Koniag. The district court denied both parties the primary relief they requested. Although it awarded Koniag damages for Koncor’s past use of rock, it issued a permanent injunction authorizing Koncor to use Koniag’s rock at a price set by the court, provided Koniag does not have a competing use. It also authorized Koncor to use rock in “cut-and-fill” operations without payment.

Koncor appeals, arguing that it should be permitted to use Koniag’s rock without payment. In the alternative, it argues that the district court’s definition of “cut-and-fill” is too narrow. Koniag cross-appeals, arguing that Koncor should be enjoined from using rock without Koniag’s consent.

II

Koncor’s position is simply stated. It maintains that Congress intended that it benefit economically from the land it received under ANCSA. It notes, however, that it is faced with a potential barrier to the realization of that goal. Its land is valuable principally as a source of timber, which cannot be harvested without using rock to build roads and other facilities. The only practical source of rock for those purposes is the subsurface estate owned by Koniag. Consequently, if Koniag has absolute control over the disposition of its rock, it can block Koncor’s timber harvesting by setting an unreasonably high price, or by refusing to sell rock at all. Koncor contends that such control, with its potential for reducing the value of Koncor’s land to zero, is inconsistent with Congress’s intent that Koncor be able to develop its land. It argues, therefore, that when the United States simultaneously conveyed the surface estate to Koncor and the subsurface to Koniag, it must also have granted Koncor, by implication, the right to use rock from the subsurface to the extent necessary to harvest its timber, thus imposing a servitude on the subsurface estate. In short, Koncor contends that it has, in effect, an easement of necessity to use Koniag’s rock. We agree to a point.

III

In determining whether land patented from the United States is burdened by an implied servitude, we look to several factors, including congressional intent, the degree of necessity for the easement, whether consideration was given for the land, whether the claim is against the United States or against a simultaneous conveyee, and the terms of the patent itself. See Superior Oil Co. v. United States, 353 F.2d 34, 36-37 & n. 5 (9th Cir.1965).[3] Analysis of each of these factors indicates that Koniag’s land is subject to a servitude whereby Koniag may not unreasonably deny Koncor access to rock.

A. Congressional intent

Congress’s intent in granting Koncor its land is an important factor in determining the existence and extent of Koncor’s rights to use Koniag’s land. See Superior Oil, 353 F.2d at 36 & n. 2; cf. Watt v. Western Nuclear, Inc., 462 U.S. 36, 53-56, 103 S.Ct. 2218, 2228-30, 76 L.Ed.2d 400 (1983) (congressional intent as to surface use paramount in determining extent of mineral reservation). ANCSA’s legislative history makes clear that Congress contemplated that land granted under ANCSA would be put primarily to three uses village expansion, subsistence, and capital for economic development. See H.R.Rep. 92-523 at 5, 1971 U.S.C.C.A.N. at 2195. Of these potential uses, Congress clearly expected economic development would be the most significant: The 40,000,000 acres is a generous grant by almost any standard…. The acreage occupied by the Villages and needed for normal village expansion is less than 1,000,000 acres. While some of the remaining 39,000,000 acres may be selected by the Natives because of its subsistence use, most of it will be selected for its economic potential…. [T]here will be little incentive for the Natives to select lands for subsistence use because during the foreseeable future the Natives will be able to continue their present subsistence uses regardless of whether the lands are in Federal or State ownership. Id. (emphasis added). See also Chugach Natives, Inc. v. Doyon, Ltd., 588 F.2d 723, 731 (9th Cir.1978). While the Act itself does not speak directly to this congressional expectation, it is reflected in ANCSA’s requirement that Natives form corporations to receive and administer the land they receive. There would be little purpose in this requirement if Congress did not expect Natives to benefit from the economic development of their land.

Koniag contends, nonetheless, that because village corporations were required to select land near their villages, and because some villages are in areas where the surface has little economic potential, Congress could not have intended that all village corporations develop their land. We agree, but find the argument irrelevant. On the basis of the legislative history and the Act’s requirement that Natives incorporate, we have no doubt that Congress intended, at least, that those Native corporations that did select land for its economic potential would be able to develop that land and to realize that potential.

Koncor carefully selected its land for the value of the timber on it. Accordingly, we conclude that Congress did not intend to grant Koncor land whose value could be reduced to zero by fiat of a subsurface owner that refused to sell it rock needed for development, or that charged an unreasonably high price for that rock. See Hunter v. United States, 388 F.2d 148, 153-54 (9th Cir.1967) (noting the “well-settled rule that the grant of a right in real property includes all incidentals possessed by the [grantor] and without which the property granted cannot be fully enjoyed.”)

B. Necessity

There is no dispute that Koncor has no other practical source of rock required for its timber harvesting, and that without reasonable access to Koniag’s rock its land is economically worthless. This degree of necessity points strongly in favor of the easement Koncor claims. See Restatement of Property section 476, comment g. (“If the necessity of an easement is such that without it the land cannot be effectively used, nothing less than explicit language in the conveyance negating the creation of the easement will prevent its implication.”)

C. Consideration

Although ANCSA land grants were not made as part of a direct sale, they must reasonably be viewed as having been supported by valuable consideration. The ANCSA grants were made to settle Native aboriginal claims to land in Alaska, and to compensate Alaska Natives for past takings of aboriginal title. United States v. Atlantic Richfield Co., 435 F.Supp. 1009, 1020-21 (D.Alaska 1977), aff’d, 612 F.2d 1132 (9th Cir.1980), cert. denied, 449 U.S. 888, 101 S.Ct. 243, 66 L.Ed.2d 113 (1980). Construing Koncor’s and Koniag’s titles to their respective estates in a way that potentially renders worthless Koncor’s estate would be inconsistent with Congress’s compensatory goals.

D. Simultaneous conveyance

Ordinarily, when the United States grants land, reserving certain rights to itself, doubts over the extent of the reservation are to be resolved in favor of the United States. See Andrus v. Charlestone Stone Prods. Co., 436 U.S. 604, 617, 98 S.Ct. 2002, 2009-10, 56 L.Ed.2d 570 (1978). Here, however, the United States did not retain an interest in the land, but simultaneously conveyed both the surface and the subsurface to third parties. Therefore, we need not indulge in this normal presumption; Koniag does not stand in the shoes of the United States. Moreover, as a general rule, when an estate is split and simultaneously conveyed to two parties, the case for an implied easement is much stronger than when the grantor retains his interest. See Restatement of Property section 476, comment f. (“It is reasonable to infer that a conveyor who has divided his land among simultaneous conveyees intends that very considerable privileges of use shall exist between them.”)

E. Language of the patents

Koniag notes that its patent to the subsurface underlying Koncor’s estate contains certain restrictions. For example, Koniag’s title to the subsurface is subject to valid rights existing at the time of the conveyance. 43 U.S.C. section 1613(g). Similarly, its right to develop any portion of its estate within the boundaries of a Native village is subject to the consent of the village corporation. 43 U.S.C. section 1613(f). Citing Andrus v. Glover Constr. Co., 446 U.S. 608, 616-17, 100 S.Ct. 1905, 1910-11, 64 L.Ed.2d 548 (1980), Koniag contends that because Congress enumerated these specific restrictions on its title, we should not read additional restrictions into its patent. Glover, however, stands only for the proposition that, “where Congress explicitly enumerates certain exceptions to a general prohibition, additional exceptions are not to be implied, in the absence of evidence of contrary legislative intent.” Id. (emphasis added). To the extent that this rule of construction is relevant in the present context, it presents no barrier to our conclusion; as discussed above, we find a clear congressional intent that Koncor benefit from development of its surface estate.

Koniag’s citation to United States v. Wood, 466 F.2d 1385, 1387 (9th Cir.1972) is similarly unavailing. In Wood we stated that a patent from the United States conveys the entire interest possessed by the United States except that which is specifically reserved. Id. Koniag contends, therefore, that because there is no specific reservation of an easement in its patent, Wood prohibits us from finding one by implication. However, in Wood, we carefully qualified our statement of the general rule by noting the possibility of finding an easement by implication or by estoppel. Id. at 1388 n. 3. We have found one.

F. Conclusion

Consideration of these factors, particularly Congress’s intent that Native corporations benefit from the land they selected, and the fact that Koncor has no other source of the rock needed to utilize its land, compels the conclusion that when the United States conveyed dually owned land to Koncor and Koniag, it conveyed to Koncor, as surface owner, a right not to be unreasonably denied access to subsurface rock as long as there is no other practical source. Koniag’s estate is burdened with a corresponding servitude.[4] The district court, therefore, properly denied Koniag’s request for an injunction that would have given it absolute control over the disposition of its rock.

IV

Our conclusion does not imply, however, that Koncor has a right to use Koniag’s rock without payment.

Koncor proposes what it describes as the “dormant estate” theory in support of its contention that it has a right to use Koniag’s rock without paying for it. According to Koncor, Koniag’s subsurface estate is “dormant,” because Koniag has no potential buyers for its rock. In this circumstance, Koncor argues, it ought to be able to use the rock free of charge because in doing so it will not be depriving Koniag of money it might otherwise receive for that rock.

The obvious flaw in this argument is that Koniag has a potential buyer for its rock: Koncor. When Koncor uses rock without paying for it, Koniag loses the money that Koncor otherwise would be paying, along with the opportunity to sell the rock at some time in the future, when there may be other buyers. The fact that Koniag presently lacks other potential buyers for its rock does not render the rock worthless. Koncor’s position as the sole current potential purchaser for Koncor’s rock is counterbalanced by Koniag’s monopoly over rock on the island.

A greater flaw in Koncor’s position is that it conflicts with the purpose underlying one of ANCSA’s most important provisions. ANCSA section 7(i) (43 U.S.C. section 1606(i)), requires regional corporations to redistribute to other regional corporations 70% of all income derived from their subsurface resources.[5] Congress imposed this requirement in recognition that Native corporations would not all receive land of equal value. Chugach, 588 F.2d at 732. The redistribution of revenue partially mitigates the disparity in the quality of land various corporations received, and therefore helps “achieve a rough equality in assets among all the Natives.” Id.

We relied on section 7(i) in Chugach and Tyonek, where we determined that rock, sand, and gravel are part of the subsurface estate both on fee land (Chugach ) and on dually owned land (Tyonek ). We reasoned: Sand and gravel are resources that are only valuable if located near developing centers. The high cost of transportation makes it unprofitable to ship them over great distances. Construing sand and gravel to be part of the surface estate would give those Corporations near large cities and developing areas a significant economic advantage over the others. Chugach, 588 F.2d at 732. Because “it is precisely this unequal distribution of resources that section 7(i) is intended to counter,” we concluded that rock, sand, and gravel must be part of the subsurface estate. Id. (quoting Aleut Corp. v. Arctic Slope Regional Corp., 421 F.Supp. 862, 867 (D.Alaska 1976)); Tyonek, 853 F.2d at 729.

The surface of Afognak Island, with Koncor’s active timber harvesting, is the kind of developing region we referred to in Chugach. Allowing Koncor to use Koniag’s rock without payment would allow Koncor, which is not required to share its revenues with other Native corporations, to capture the entire value of the rock it uses rock which we determined in Chugach and Tyonek must be subject to section 7(i)‘s revenue sharing provisions.[6]

Accordingly, while Koniag may not unreasonably deny Koncor access to rock necessary for its timber harvesting operations, Koncor must pay a reasonable price for the rock it uses. This requirement ensures that, in the situation presented in this case, ANCSA’s goals are not thwarted. That Koniag may not unreasonably deny Koncor access to its rock achieves ANCSA’s purpose of allowing Koncor to benefit economically from its surface estate. That Koncor must pay for the rock it uses promotes ANCSA’s equally important goal of ensuring that revenues derived from subsurface resources be shared among all Natives.

V

The district court’s injunction requires Koniag to sell Koncor rock at $0.30 per cubic yard, gravel at $0.30 per cubic yard, and sand at $0.75 per cubic yard. For the reasons set out below, we vacate the injunction.

Koncor’s right of access to Koniag’s rock is limited in two important respects. First, it is conditioned on there being no other practical source of rock for Koncor’s needs. Second, it is not a right to free access; it is a right to reasonable access. Therefore, before Koncor can expect courts to intervene on its behalf, it must establish two things. First, it must demonstrate that Koniag owns the only practical source of material for development of its surface estate. It already has done this. Second, Koncor has the burden of showing that it has been unreasonably denied access to Koniag’s rock. Unless Koncor can demonstrate that Koniag is unreasonably denying it access to rock it needs for development, it suffers no injury, and therefore has no standing to seek the aid of the court. See Lujan v. Defenders of Wildlife, – U.S. –, –, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992).

The district court never addressed this second issue. Instead, it determined that $0.30 per cubic yard is a “fair price” for Koniag’s rock. However, even if $0.30 per cubic yard is a fair price,[7] it does not follow that the price Koniag is demanding currently $0.75 per cubic yard is unreasonable. What counts as a reasonable price is not subject to precise mathematical definition. In any location, for any resource, there will be a range of prices, perhaps a wide range, none of which are unreasonable. On the record before us, we cannot conclude that the price Koniag is demanding clearly falls outside or inside that reasonable range.

Accordingly, we vacate the district court’s injunction. If the parties do not settle on a mutually agreeable price, on remand Koncor has the burden of showing that the price[8] Koniag demands for rock is unreasonably high, or that Koniag is refusing to sell Koncor rock at any price. If Koncor carries this burden, the district court may issue an injunction requiring Koniag to sell Koncor rock, sand, and gravel at prices that the district court determines are reasonable.

If Koncor fails to carry its burden, then it either must pay the price Koniag demands, or stop using its rock. If it continues to use the rock without paying a reasonable price, as it has in the past, the district court may, in its discretion, issue an injunction ordering Koncor to stop using Koniag’s rock unless it pays the reasonable price Koniag demands.[9]

VI

Cut-and-fill construction involves preparing land by leveling those portions that are above the desired grade, and using the material thus removed to fill in those portions that are below the desired grade. The district court’s injunction provides that Koncor can use rock in cut-and-fill operations without payment, as long as it is used in the “same project” from which it was obtained. According to the injunction, ” ‘same project’ refers to such things as camp sites, log sort yards, or log transfer sites, each considered separately.” In the case of road construction, the injunction provides that Koncor need not pay for cut-and-fill material provided that it is moved no more than 500 feet for use in the same roadbed. Any material “blasted, hauled by truck, put through a crusher or obtained from a borrow pit or quarry” is not considered cut-and-fill.

Once again, both parties are unhappy with the terms of the injunction. Koniag contends that Koncor must pay for all rock it uses. Koncor contends that the “same project” and 500 foot limits placed on its use of cut- and-fill are too narrow. It insists that whenever it needs to cut down some surface, it ought to be able to use the material thus removed whenever and wherever it wishes, without payment.

A district court has broad discretion in fashioning equitable relief. S.E.C. v. United Fin. Group, 474 F.2d 354, 358-59 (9th Cir.1973). We find no abuse of discretion in this instance. Koniag does not dispute that Koncor has a right to prepare sites by cutting down high spots or digging depressions when necessary. Nor does it contend that Koncor must necessarily pay for material it so removes. It contends, instead, that Koncor must pay for that material only if Koncor uses it as fill. Yet if Koncor may remove material without payment, it makes no legal or economic sense to compel Koncor to pay for that material merely because it happens to dispose of it in a manner beneficial to Koncor, rather than in a manner that is of no benefit to anyone. Koniag cites, and we can discover, no decision holding that a surface owner must compensate a subsurface owner for material thus moved. Therefore, we reject Koniag’s position that Koncor must pay for any and all rock it moves in cut-and-fill construction.

This case, however, presents some unique concerns. In what we imagine is the ordinary case, cut-and-fill construction involves relocation of relatively valueless material, of no concern to the subsurface owner. Such is not the case here. Therefore, any ruling that Koncor may use all rock obtained by necessary cutting without compensating Koniag is open to potential abuse. For example, rather than cutting only when necessary, Koncor could maximize its use of cut-and-fill construction by choosing to route roads along the sides of hills rather than over flat land. Similarly, it could choose to site camps on land that requires a great deal of leveling and grading. There is evidence in the record that Koncor does precisely these things. Such tactical decisions, made not because they are topographically necessary, but in order to obtain as much rock as possible without paying for it, unfairly deprive Koniag of revenues from the sale of rock, and fall outside the range of what we consider legitimate incidental uses that do not require payment to Koniag.

The limitations the district court placed on the definition of cut-and-fill are intended to minimize the potential for such abuses, with a minimum of future judicial intervention. In creating those limitations, the district court did not abuse its discretion. Koncor appealed to the court’s equitable powers, and the court, in our view, fashioned an equitable solution, protecting the rights of both parties. Accordingly, we affirm that portion of the district court’s injunction concerned with cut-and-fill.

CONCLUSION

Apart from Koniag’s rock, there are no practical sources of rock for development of Koncor’s surface estate, consistent with the intent of ANCSA. Therefore, Koncor, as surface owner, has a right not to be unreasonably denied use of rock from Koniag’s subsurface estate. The benefits and burdens of this servitude run with the respective estates.

However, on the record before us, there is insufficient evidence to determine whether Koniag presently is violating Koncor’s right to reasonable access. Accordingly, we vacate the district court’s injunction except insofar as it applies to cut-and-fill operations, and remand to the district court for further proceedings not inconsistent with this opinion. Each party will bear its own costs on appeal.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED.