Topic: Land

Paug-Vik, Inc., the native village corporation of the village of Naknek, has appealed the Superior Court’s decision that Wards Cove Packing Company, Inc., is entitled to continued water appropriations from Seagull Lake,[1] pursuant to the Alaska Water Use Act, AS 46.15.010, et. seq. For the reasons set forth below, we agree with the conclusion reached by the trial court and affirm its decision.

I. FACTUAL AND PROCEDURAL BACKGROUND

Pursuant to the Alaska Native Claims Settlement Act, 43 U.S.C. § 1607(a), [ANCSA] the native inhabitants of Naknek formed the village corporation of Paug-Vik. Under the terms of ANCSA, patents of land surrounding the village have been conveyed to the corporation. Part of Paug-Vik’s “core township,” as defined in 43 U.S.C. § 1610(a)(1)(A), includes lands surrounding and underlying a number of shallow, freshwater lakes. One of those lakes, Seagull Lake, is between 2.3 and 4.5 feet in depth and is located approximately one mile east of the village of Naknek. It is the focal point of this litigation.

Located approximately 3000 feet to the south of Seagull Lake is a cannery owned by appellee, Wards Cove Packing Co., Inc. The cannery draws 400,000 gallons of water per day from the lake, through a 10-inch pipeline constructed in 1930 by the Red Salmon Canning Company, one of Wards Cove’s predecessors in interest. On August 1, 1936, and again on January 17, 1959, the predecessors recorded with the United States Commissioner, Kvichak District at Naknek, Alaska, a Notice of Appropriation of Water Rights, pursuant to 43 U.S.C. § 661.[2] Also in January of 1959, a predecessor filed an application with the Department of the Interior for rights of way for a reservoir, a pipeline, a pumping plant, and a transmission line needed in order to take the water. This was granted in May of 1963 and included a 50 foot wide strip around the lake. Wards Cove filed a Declaration of Appropriation with the Alaska Division of Lands, Department of Natural Resources, on August 24, 1967, declaring the appropriation of water for “cannery operation, domestic use and fire protection.”[3] There have been no competing declarations seeking to use the waters of Seagull Lake.

On July 1, 1976, Paug-Vik protested to the Commissioner of Natural Resources that Wards Cove was not entitled to its requested appropriation. Paug-Vik asserted 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. Their protest was denied and Wards Cove received a Certification of Appropriation of Water, on March 18, 1977. Paug-Vik appealed the Commissioner’s decision to the Superior Court, and Judge Singleton granted Paug-Vik’s request for a trial de novo.[4]

At trial Paug-Vik attempted to prove, as it had before the Commissioner, that the Natives of Naknek had aboriginal title to Seagull Lake at all times prior to the passage of ANCSA.[5] Section 8 of the Organic Act of 1884, according to Paug-Vik, exempted aboriginal title lands from the application of the public land laws extended to Alaska by that act.[6] Among those land laws was 43 U.S.C. § 661, under which Wards Cove claims to have acquired its water rights through its appropriation accomplished in 1930. Paug-Vik’s position throughout these proceedings has been that Wards Cove could not have acquired any valid rights to the water of Seagull Lake because, as aboriginal title land, the lake was exempt from the operation of § 661.

As a consequence, Paug-Vik’s argument continues, Wards Cove has never possessed “valid existing rights” to the water, within the meaning of § 1613(g) of ANCSA.[7] Paug-Vik should thus take fee title to the lake as part of the ANCSA allotment, free of Wards Cove’s invalid right of appropriation.

The court below decided that it was unnecessary to reach the complex issues of whether aboriginal title ever existed in Alaska, what criteria must be met in order to acquire aboriginal title, whether the Natives of Naknek in fact met those criteria and whether any title they might have acquired was abandoned by entry into the cash economy. The trial court, in a thorough and well reasoned opinion, ruled inter alia that, (1) the waters of Seagull Lake were available for appropriation by Wards Cove and its predecessors pursuant to 43 U.S.C. § 661[8] prior to ANCSA, notwithstanding claims of aboriginal title, (2) Wards Cove’s appropriations were validated by § 1603(a) of ANCSA,[9] and (3) § 1603(c) of ANCSA extinguished any claims based on aboriginal title or use and occupancy in derogation of Wards Cove’s right-of-way permit and water appropriation.[10]

II. 43 U.S.C. § 1603(a)

Congress has settled the question of whether conveyances of aboriginal title land under the federal public land laws are valid notwithstanding the non-disturbance language which we have emphasized in setting out the Organic Act of 1884.[11] Congress has declared in § 1603(a) of ANCSA that such conveyances are effective. Transfers so accomplished are among the reasons for the settlement effected by the act.[12]

The question remains whether an appropriation of water under the authority of 43 U.S.C. § 661 effected a conveyance “of public land and water areas . . . . or any interest therein, pursuant to federal law” as those terms are used in § 1603(a). The answer to this question depends on the nature of the right acquired by an appropriation of water under 43 U.S.C. § 661.[13]

“For many years prior to the passage of the Act of July 26, 1866, c. 262, § 9, 14 Stat. 251, 253 (30 USCA § 51 and note 43 USCA § 661, par. 1 and note) the right to the use of waters for mining and other beneficial purposes in California and the arid region generally was fixed and regulated by local rules and customs. The first appropriator of water for a beneficial use was uniformly recognized as having the better right to the extent of his actual use. * * * * The rule generally recognized throughout the states and territories of the arid region was that the acquisition of water by prior appropriation for a beneficial use was entitled to protection * * * *. The rule was evidenced not alone by legislation and judicial decision, but by local and customary law and usage as well. Basey v. Gallagher, 20 Wall, 670, 683-84, 87 U.S. 670, 683 84, 22 L. Ed. 452 (1874); Atchison v. Peterson, 20 Wall, 507, 512-13, 87 U.S. 507, 512-13, 22 L. Ed. 414 (1874).

This general policy was approved by the silent acquiescence of the federal government, until it received formal confirmation of Congress by the Act of 1866, supra. Atchison v. Peterson, supra. Section 9 of that act provides that:

‘Whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same; and the right of way for the construction of ditches and canals for the purposes herein specified is acknowledged and confirmed: * * * *’ * * * * And in order to make it clear that the grantees of the United States would take their lands charged with the existing servitude, the Act of July 9, 1870, c. 235, § 17, 16 Stat. 217, 218 (30 USCA § 52 and note, 43 USCA § 661, par. 2 and note) amending the Act of 1866 provided that:

‘* * * * All patents granted or preemption or homesteads allowed, shall be subject to any vested and accrued water rights, or rights to ditches and reservoirs used in connection with such water rights as may have been acquired under or recognized by the ninth section of the act of which this act is amendatory.’

The effect of these acts is not limited to rights acquired before 1866. They reach into the future as well, and approve and confirm the policy of appropriation for a beneficial use, as recognized by local rules and customs, and the legislation and judicial decisions of the arid-land states, as the test and measure of private rights in and to the nonnavigable waters on the public domain.”

Hunter v. United States, 388 F.2d 148, 151-52 (9th Cir. 1967), quoting California Oregon Power Co. v. Beaver Portland Cement Co., 295 U.S. 142, 154-55, 79 L. Ed. 1356, 55 S. Ct. 725 (1935).

The rights passed by § 661 are dependent on local law in effect at the time of the appropriation. The status of water law in the Territory of Alaska has been reviewed and summarized in Trelease, Alaska’s New Water Use Act, 2 Land and Water Law Review 1, 6-10 (1967). Briefly, territorial law was in accord with “the universal law of the Pacific Coast states and territories,” Miocene Ditch Co. v. Jacobson, 2 Alaska 567, 574 (Alaska 1905), under which the first appropriator of water on public land acquired the right to the water to the extent of his actual use. Id.; see also Eglar v. Barker, 4 Alaska 142 (Alaska 1910). The appropriator’s water rights were vested at the time of the act of appropriation. There was not legal requirement to post or record notices of appropriation. VanDyke v. Midnight Sun Mining & Ditch Co., 177 F. 85 (9th Cir. 1910); Kernan v. Andrus, 6 Alaska 54 (Alaska 1918). Further,

to constitute a valid appropriation of water three elements must always exist: first, an intent to apply it to some beneficial use, existing at the time or contemplated in the future; second, a diversion from the natural channel by means of a ditch, canal, or other structure; and, third, an application of it, within a reasonable time, to some useful industry.

Hoogandorn v. Nelson Gulch Mining Co., 4 Alaska 216, 220 (Alaska 1910) quoting Nevada Ditch Co. v. Bennett, 30 Ore. 59, 45 P. 472 (Or. 1896).

The water right acquired by appropriation under § 661 is an interest in real property. Adamson v. Black Rock Power & Irrigation Co., 12 F.2d 437 (9th Cir. 1926). When it is acquired, it becomes private property. Thayer v. California Development Co., 164 Cal. 117, 128 P. 21 (Cal. 1912). In Broder v. Natoma Water & Mining Co., 101 U.S. 274, 275, 25 L. Ed. 790, 791 (1870) the United States Supreme Court referred to § 661 as “an unequivocal grant.” In Bear Lake & River Water Works & Irrigation Co. v. Garland, 164 U.S. 1, 41 L. Ed. 327, 334, 335, 17 S. Ct. 7 (1896), the court spoke of § 661 as a grant of “title to the right-of way or the use of the water” once the works for the appropriation are completed. [Emphasis added] In Hunter v. United States, 388 F.2d at 153, the Ninth Circuit Court of Appeals stated that a water appropriation under § 661 was “the equivalent of a grant of the use of the waters from the federal government . . . .” and held that the grant was good even against the federal government.[14]

In view of the foregoing, we have no difficulty in concluding that water rights acquired by appropriation under § 661 are conveyances of an interest in public land and water areas pursuant to federal law within the meaning of § 1603(a).[15] They therefore must be regarded as extinguishing aboriginal title to the same interest.

This interpretation is consistent with the general purpose of Congress in enacting § 1603, which is that the extinguishment provisions of that section should be construed broadly to eliminate every claim resting on the assertion of aboriginal title. The Conference Committee Report concerning ANCSA stated:

It is the clear and direct intent of the conference committee to extinguish all aboriginal claims and all aboriginal land titles, if any, of the native people of Alaska and the language of settlement is to be broadly construed to eliminate such claims and titles as any basis for any form of direct or indirect challenge to land in Alaska.

H.R. Conf. Rep. No. 92-746, 92d Cong., 1st Sess. 40, reprinted in [1971] U.S. Code Cong. & News 2196, 2253. [Emphasis in original]. See also United States v. Atlantic Richfield Co., 612 F.2d 1132, 1139 (9th Cir. 1980).

In view of our conclusion that § 1603(a) governs this case it is unnecessary to address any of the alternative grounds on which the lower court based its decision.

The judgment in AFFIRMED.

Compton, Justice, not participating.

The appellants, owners of unpatented mining claims located prior to the enactment of the Alaska Native Claims Settlement Act (ANCSA), 43 U.S.C. § 1601, et seq., 85 Stat. 688, et. seq., December 18, 1971, claim for themselves and all others similarly situated the right to a declaratory judgment and injunctive protection of an alleged vested property right in the ability to patent their mining claims. The district court entered summary judgment in favor of appellees. We affirm.

BACKGROUND

Pursuant to the provisions of ANCSA, the United States has conveyed certain federal lands covered by the Act to Alaskan native corporations. Appellants are three miners, two of whom have valid mining claims on land that was conveyed to native corporations, and one who appears to have a mining claim on land not conveyed. The action was originally brought as a class action. Class certification was denied by the district court.

ISSUES

I. Does ANCSA allow the federal government to convey land covered by the Act which is subject to valid mining claims?

II. Assuming the first issue is answered in the affirmative, is the time limitation on the ability to patent placed on valid mining claims under 43 U.S.C. § 1621 (c) constitutional?

III. Did the district court commit error in denying class certification?

I. 

Section 22 (c) of ANCSA, 43 U.S.C. § 1621 (c), covers the precise factual situation which is before us on this issue. That section provides:

“(c) On any lands conveyed to Village and Regional Corporations, any person who prior to August 31, 1971, initiated a valid mining claim or location under the general mining laws and recorded notice of said location with the appropriate State or local office shall be protected in his possessory rights, if all requirements of the general mining laws are complied with, for a period of five years, and may, if all requirements of the general mining laws are complied with, proceed to patent.” (Emphasis added)

Clearly, the manifest intention of Congress was that lands subject to a “valid mining claim” may be “conveyed to Village and Regional Corporations.” It would have been senseless for Congress to include § 22 (c) unless it intended to grant authority to make such conveyances.

Furthermore, in the legislative history leading up to the passage of this particular section, the sponsor stated: “This is a protection for those who have mining claims in Alaska. If they are valid today and if they continue in the development they will have an additional five years to proceed to patent.” 117 Cong.Rec. 46965 (December 14, 1971). (Emphasis added) True enough, as appellants point out, one of the purposes of § 22 (c) was obviously to assist miners. In doing so, the Congress chose to protect those who had filed valid claims before August 31, 1971, by, among other things, giving them an additional five years to proceed to patent. The fact that Congress did not mention a comparable time on applying for a patent in 43 U.S.C. § 1621 (b) only emphasizes the Congressional intent to apply the specific time limit mentioned in § 22 (c) to holders of valid mining claims. Homesteaders and other entrymen are not given the same protection, but this is readily explainable. A miner need never acquire a title in order to work his claim and protect his rights against third persons. Union Oil Co. v. Smith, 249 U.S. 337, 349, 39 S. Ct. 308, 311, 63 L. Ed. 635 (1919). Consequently, in Alaska as in many other states, many miners never bother to seek patents. Since there is really no incentive for miners to seek patents, it was incumbent upon Congress to place some kind of a time limit which would clearly prevent miners from presenting claims in the distant future.

By 43 C.F.R. 2650.3-2(c), the Secretary of Interior has interpreted § 22 (c) as requiring his Department to reject, for lack of jurisdiction, mineral patent applications filed after December 18, 1976 (or after conveyance, if it is later) on lands conveyed to Village or Regional Corporations. As recently as Andrus v. Idaho, 445 U.S. 715, 729, 100 S. Ct. 1450, 1458, 63 L. Ed. 2d 739 (1980), and Udall v. Tallman, 380 U.S. 1, 16-18, 85 S. Ct. 792, 801-02, 13 L. Ed. 2d 616 (1965), the Supreme Court has emphasized that great deference should be given to the interpretation that the Secretary of the Interior places on the statutes which he administers. See also, Doyon, Ltd. v. Bristol Bay Native Corp., 569 F.2d 491, 496 (CA9 1978), cert. denied, 439 U.S. 954, 99 S. Ct. 352, 58 L. Ed. 2d 345.

Therefore, the answer to the first issue is a definite yes.

II.

The appellants next argue that miners have a valid existing right to require the government to hold open indefinitely the option to apply for a patent. The plain wording of § 22 (c) answers this contention. Section 14 (g) of ANCSA, 43 U.S.C. § 1613 (g), on which the appellants rely, recognizes only “valid existing rights.” Appellants have no such right to a patent or to the opportunity to apply for a patent outside of the time restriction mentioned in § 22 (c). Appellants may well have an existing right to prevent third parties from interfering with their possessory interest. However, they have no right to prevent the government from conveying the legal title to the native corporations.

The argument of appellants that a valid location of a mining claim segregates that area of the claim from the public domain and thus prevents the United States from disposing of the legal title is manifestly unsound. For example, see Clipper Mining Co. v. Eli Mining & Land Co., 194 U.S. 220, 227, 24 S. Ct. 632, 634, 48 L. Ed. 944 (1904). The Court there carefully pointed out that it was not adjudicating any rights against the United States. 194 U.S. at 232-33, 24 S. Ct. at 637. Even more on point is Teller v. United States, 113 F. 273, 283-84 (CA8 1901), where the court held that a valid mining location does not limit the rights of the United States as the paramount title holder.

For that matter, it has been held that the interest of a claimant in a mining claim, prior to the payment of any money for the granting of the patent for the land, is nothing more than a right to the exclusive possession of the land based upon conditions subsequent, a failure to fulfill which forfeits the locator’s interest in the claim. Black v. Elkhorn Mining Co., 163 U.S. 445, 450, 16 S. Ct. 1101, 1103, 41 L. Ed. 221 (1896). We find it unnecessary to discuss in detail the many cases, starting with Shepley v. Cowan, 91 U.S. 330, 23 L. Ed. 424 (1875), and many of which are cited in our Assiniboine & SIOUX TRIBES V. NORDWICK, 378 F.2D 426, 428 (Ca9 1967), cert. denied, 389 U.S. 1046, 88 S. Ct. 764, 19 L. Ed. 2d 838 (1968), which hold that the government may withdraw or convey the title to land subject to valid, unpatented claims. All in substance hold that the land remains subject to the disposing power of the Congress until a homestead or preemption entryman satisfies the conditions imposed by law for the issuance of a patent. Although these cases dealt with homestead and preemption claims, cases such as Black v. Elkhorn Mining Co., supra, and Teller v. United States, supra, are to the same effect.

The interpretations of this legislation by two regional corporations organized pursuant to ANCSA (Doyon, Ltd. and Sealaska Corporation) are not properly before us. In any event, their contention that § 22 (c) is a direction to the Secretary of the Interior to adjudicate the validity of all unpatented mining claims on lands conveyed to native corporations is groundless. We have considered their other suggestions and fail to find anything which requires further discussion.

III. 

In light of our conclusions on Points I and II, it is unnecessary for us to comment on appellants’ contentions with reference to the failure of the court to grant class certification.

CONCLUSION

We conclude that the judgment of the district court must be affirmed.

IT IS SO ORDERED.

Appellants appeal from a partial summary judgment invalidating a permit for the construction and operation of a log transfer facility on Admiralty Island and enjoining its use. Jurisdiction to hear this appeal is provided by 28 U.S.C. § 1292(a)(1). The district court held that the environmental impact statement (EIS) prepared in connection with the permit was inadequate under the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. §§ 4321-4370, because it failed to consider an alternative whereby the land on Admiralty Island could be exchanged for land elsewhere. Appellees cross-appeal from the district court’s dismissal of their claims that proposed timber harvesting on Admiralty Island violates the Alaska Native Claims Settlement Act (ANCSA), 43 U.S.C. §§ 1601-1629a, and the Alaska National Interest Lands Conservation Act (ANILCA), Pub. L. No. 96-487, 94 Stat. 2371 (1980) (codified as amended in scattered sections of 16 and 43 U.S.C.). Jurisdiction to hear this appeal is provided by 28 U.S.C. § 1291. 

We reverse the district court’s judgment invalidating the permit and enjoining use of the log transfer facility. We affirm in all other respects.

I.

FACTS AND PROCEEDINGS BELOW

Appellants, defendants below, are Shee Atika, Inc. (Shee Atika), an Alaska Native Village Corporation that claims a surface estate in some 23,000 acres of Admiralty Island; Sealaska Corporation (Sealaska), an Alaska Native Regional Corporation that owns subsurface rights in land owned by Shee Atika; federal officials in the Department of the Army who issue permits under section 404 of the Clean Water Act, 33 U.S.C. § 1344, and section 10 of the River and Harbor Act of 1899, 33 U.S.C. § 403; and other federal officials who administer laws relating to Native Americans. We refer to appellants collectively as Shee Atika-Sealaska.

Appellee cross-appellants, plaintiffs below, are the City of Angoon (Angoon), the only permanent settlement on Admiralty Island; the Sierra Club, and the Wilderness Society, both national conservation organizations. We refer to appellees collectively as Sierra-Angoon.

This litigation is the latest episode in a twelve-year struggle which reflects badly upon the ability of the three branches of the federal government to resolve disputes reasonably expeditiously. It is a struggle in which Shee Atika attempts to realize economic benefits from the settlement of its aboriginal claims under ANCSA. ANCSA authorized the Secretary of the Interior (Secretary) to convey to Shee Atika a surface estate in some 23,000 acres of land. 43 U.S.C. § 1613(h)(3). In exchange, the Native shareholders of Shee Atika relinquished all their aboriginal claims.

In 1975, Shee Atika designated lands in the southwest portion of Admiralty Island for the exchange. The Sierra Club and Angoon immediately contested the conveyance. The Sierra Club wishes to protect the wilderness character of Admiralty Island. The President and Congress recognized the island’s ecological importance by designating 920,000 of its 1.2 million acres as a national monument. Presidential Proclamation No. 4611, 3 C.F.R. 69 (1978); ANILCA, § 503(b), 94 Stat. 2371, 2399 (1980). Angoon is afraid that timber harvesting will disrupt the traditional subsistence culture of its 500 Tlinget Indian inhabitants.

Responding to pressure, Shee Atika agreed to exchange its land in the southwest of Admiralty Island for land in the northwest of the island. Its new selection is farther from Angoon and was rated environmentally less sensitive by the United States Forest Service. Excerpt of Record (E.R.) at 145. Congress approved the exchange in section 506(c) of ANILCA, 94 Stat. 2371, 2409.

The Sierra Club and Angoon challenged the new conveyance both before the Department of the Interior and in district court. The Sierra Club also filed a notice of lis pendens in the Alaska land records, which prevented Shee Atika from obtaining commercial financing for its timber development plans. Congress responded by enacting section 315 of the Interior Appropriations Act, Pub. L. No. 97-394, 96 Stat. 1998 (1983), which confirmed the conveyance to Shee Atika “in all respects.”[1]

The Sierra Club and Angoon returned to district court to protest Shee Atika’s plans to harvest timber on its land. They objected to the permit issued by the Army Corps of Engineers (Corps) for a log transfer facility on the ground that the Corps had not prepared an EIS as required by NEPA, 42 U.S.C. § 4332. The Corps suspended the permit in March, 1983, pending completion of an EIS. Shee Atika nevertheless harvested timber during the spring of 1983, moving the logs by means less efficient than a log transfer facility. The Sierra Club and Angoon interrupted this activity by obtaining a preliminary injunction against timber harvesting. They claimed, and the district court agreed, that ANILCA prohibits timber harvesting on Shee Atika’s land because it is located within a national monument.

Shee Atika appealed to this court, and we vacated the preliminary injunction. City of Angoon v. Marsh (Angoon I), 749 F.2d 1413 (9th Cir. 1985). From the language and legislative history of ANILCA, we concluded that Congress did not intend to prohibit timber harvesting on private land located within national monuments. We also looked to the purpose of ANCSA, which authorized the conveyance to Shee Atika to settle its claims “in conformity with the real economic and social needs of Natives,” 43 U.S.C. § 1601(b). It was “inconceivable that Congress would have extinguished their aboriginal claims and insured their economic well being by forbidding the only real economic use of the lands so conveyed.” 749 F.2d at 1418.

On remand the district court consolidated four cases involving Shee Atika’s land. Sierra-Angoon filed a consolidated complaint on April 29, 1985. They challenged the original conveyance to Shee Atika of land on Admiralty Island. They objected to the new permit for a log transfer facility which the Corps had issued after completing an EIS. And they protested all timber harvesting on Admiralty Island. Sierra-Angoon based their claims variously on provisions of ANCSA, ANILCA, NEPA, and the Clean Water Act; on the federal trust responsibility owed to Angoon; and on the due process and property clauses of the United States Constitution.

All parties moved for summary judgment. The district court disposed of the motions in two orders dated October 17, 1985; in a third order dated November 27, 1985; and in a partial final judgment dated December 27, 1985. The court granted partial summary judgment for Sierra-Angoon on their claim that the log transfer facility permit was invalid under NEPA because the EIS did not study an alternative by which Shee Atika could exchange its Admiralty Island land for land elsewhere. The court granted partial summary judgment for Shee Atika-Sealaska on all other claims, except a claim arising under section 402 of the Clean Water Act, 33 U.S.C. § 1342, which was still the subject of an administrative appeal.

As already indicated, Shee Atika-Sealaska appeal from so much of the November 27 order as held that the EIS was inadequate. Sierra-Angoon cross-appeal from so much of the judgment of December 27 as dismissed three of their claims. First, they claim that Congress conveyed the Admiralty Island land to Shee Atika intending that Shee Atika exchange it for land elsewhere and not use it for timber harvesting. Second, they claim that Shee Atika’s land is subject to management restrictions under section 22(k) of ANCSA, 43 U.S.C. § 1621(k). Third, they challenge timber harvesting on Admiralty Island because certain federal agencies failed to prepare subsistence evaluations required by section 810 of ANILCA, 16 U.S.C. § 3120, and because the Secretary of the Interior failed to protect access to subsistence resources under section 811 of ANILCA, 16 U.S.C. § 3121. 

II.

STANDARD OF REVIEW

This court reviews de novo a trial court’s grant of summary judgment. Darring v.  Kincheloe, 783 F.2d 874, 876 (9th Cir. 1986). The standard used by the trial court under Fed. R. Civ. P. 56(c) thus governs the appellate court’s review. This court determines, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Id.

III.

NATIONAL ENVIRONMENTAL POLICY ACT

It has been said many times that NEPA is an “essentially procedural” statute. Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 558, 55 L. Ed. 2d 460, 98 S. Ct. 1197 (1978). We enforce NEPA under our authority to “hold unlawful and set aside agency action, findings, and conclusions found to be . . . without observance of procedure required by law,” Administrative Procedure Act, 5 U.S.C. § 706(2)(D). Lathan v. Brinegar, 506 F.2d 677, 692-93 (9th Cir. 1974) (en banc).

One of the procedures prescribed by NEPA is that:

all agencies of the Federal Government shall — . . .

(C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on —

(i) the environmental impact of the proposed action,
(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,
(iii) alternatives to the proposed action,
(iv) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and
(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

42 U.S.C. § 4332(2).

This “detailed statement” is the environmental impact statement (EIS). The present case specifically tests the requirement that an EIS discuss “alternatives to the proposed action.” In applying this requirement, we employ a “rule of reason” in judging whether the agency described “those alternatives necessary to permit a ‘reasoned choice.'” State of California v. Block, 690 F.2d 753, 767 (9th Cir. 1982) (citations omitted). “The touchstone for our inquiry is whether an EIS’s selection and discussion of alternatives fosters informed decision-making and informed public participation.” Id. In particular, an EIS need not consider “remote and speculative” alternatives whose effects cannot be readily ascertained. Vermont Yankee, 435 U.S. at 551 (quoting Natural Resources Defense Council, Inc. v. Morton, 148 U.S. App. D.C. 5, 458 F.2d 827, 837-38 (D.C. Cir. 1972)); See Life of the Land v. Brinegar, 485 F.2d 460, 472 (9th Cir. 1973), cert. denied, 416 U.S. 961, 94 S. Ct. 1979, 40 L. Ed. 2d 312 (1974).

Before reissuing the permit for the log transfer facility, the Corps spent nineteen months preparing an EIS that is over 120 pages long, exclusive of maps, diagrams, and appendices. E.R. at 139. The EIS is technically sophisticated and analytically rigorous. It describes seven alternatives. One, the “no-action” alternative, considers the effects of denying the permit. The other six alternatives involve different ways of transferring logs either to the water for transport or directly on to vessels. The Corps finally approved an alternative that differs slightly from Shee Atika’s original proposal. In addition, the Corps imposed twelve special conditions on the permit in order to mitigate adverse environmental effects. E.R. at 340-42.

The heart of the Sierra-Angoon argument is that the EIS is inadequate because it does not consider in detail the alternative that Shee Atika could exchange its Admiralty Island holdings for land elsewhere. In fact, the Corps adverted to this possibility, but decided not to develop it at length. First, the Corps observed that an exchange would not satisfy the purpose for which Shee Atika sought the permit: “safe, cost effective means of transferring timber harvested on their land to market.” E.R. at 163. Second, the Corps reasoned that the exchange alternative was remote and speculative because it was contingent on congressional action and had not been reduced to a specific proposal. Id. at 153, 170. Third, the Corps noted that, as far as it was concerned, the exchange alternative was equivalent to the no-action alternative because it could do no more to promote a trade. Id. And the Corps doubted whether it could properly withhold a permit in order to force Shee Atika to consent to an exchange that it otherwise would have refused. Id.

The district court considered and rejected each of the Corps’ reasons for its abbreviated discussion of the exchange alternative. The district court attacked the Corps’ statement of the permit’s purpose. Purporting to rely on the Corps’ regulations, the district court restated the purpose in terms of a broad, generic public benefit: “commercial timber harvesting.” E.R. at 55. But the Corps’ regulations recognize that “every application has both an applicant’s purpose and need and a public purpose and need.” 33 C.F.R. Part 230, App. B (11)(b)(4) (1985). The regulations, however, specify that “the EIS shall document a reasonable number and range of alternatives which would satisfy the purpose and need (as described in paragraph 11(b)(4) above) for which the applicant has submitted his proposal.” Id. at (11)(b)(5)(b). The Corps characterized the relevant “purpose and need” as providing a “safe, cost effective means of transferring timber harvested on [Shee Atika’s] land to market,” E.R. at 163, a purpose broader than constructing a specific log transfer facility at a designated location in Cube Cove, as Shee Atika requested. The district court erred when it adopted as the “purpose and need” the even broader concept “commercial timber harvesting.” This formulation appears to make a broad social interest the exclusive “purpose and need.” The Corps’ statement is more balanced. We have said before, “The preparation of [an EIS] necessarily calls for judgment, and that judgment is the agency’s.” Lathan v. Brinegar, 506 F.2d at 693.

Acceptance of the Corps’ statement of purpose makes consideration of the exchange alternative irrelevant. See Trout Unlimited v. Morton, 509 F.2d 1276, 1286 (9th Cir. 1974). When the purpose is to accomplish one thing, it makes no sense to consider the alternative ways by which another thing might be achieved.

However the permit’s purpose is characterized, the exchange alternative is too remote and speculative. Congress explicitly conveyed the Admiralty Island land to Shee Atika, and Congress would have to authorize any substitute conveyance made in exchange. Shee Atika would have to consent. Should the tract to be exchanged be quite valuable, Congress might refuse to offer it; if it is less valuable, Shee Atika might refuse to accept it. To require the Corps to select one or more tracts for exchange which, in its view, might induce both an offer and acceptance is to visit upon it a task that would involve almost endless speculation.

It is true that the fact that an alternative requires legislative action does not automatically justify excluding it from an EIS.[2] The alternatives, however, must be ascertainable and reasonably within reach. Neither condition clearly was met when the EIS was prepared. Sierra-Angoon had not offered a specific, detailed counterproposal that had a chance of success. Those who challenge an EIS bear a responsibility “to structure their participation so that it is meaningful, so that it alerts the agency to the intervenors’ position and contentions.” Vermont Yankee, 435 U.S. at 553. Sierra-Angoon did not meet this responsibility. See Friends of the Earth v. Coleman, 513 F.2d 295, 298 (9th Cir. 1975) (upholds district court decision that EIS did not have to consider alternative sites as sources of fill, where plaintiffs failed to allege specific evidentiary facts showing that the alternative sites were reasonable and viable); Seacoast Anti-Pollution League v. Nuclear Regulatory Comm’n, 598 F.2d 1221, 1231 (1st Cir. 1979) (where petitioners fail to present supporting material, agency need not consider alternative sites for nuclear power plant). It follows, of course, that Sierra-Angoon has not demonstrated that timber harvesting at an alternative location would be environmentally less harmful than timber harvesting on Admiralty Island.[3] Nor can the Corps make this determination until an exchange becomes ascertainable. Until then, the consequences of an exchange are remote and speculative. 

Our position draws support from the fact that since 1979, the federal government has been negotiating with Shee Atika without success for an exchange of the Admiralty Island land. We should not hold a log transfer facility as a hostage to facilitate the resolution of this intractable controversy. Shee Atika’s need to benefit economically from ANCSA is urgent. 43 U.S.C. § 1601(b). To defer meeting this need while the Corps considers alternatives that none unilaterally can bring to pass would more resemble coercion than justice. The Corps properly eschewed development of a detailed exchange alternative.

Therefore we conclude that the EIS in issue here was adequate because it discussed all the alternatives that were reasonably necessary to enable the Corps to make an informed decision to grant the log transfer facility permit. We reverse the district court’s judgment insofar as it invalidates the permit and enjoins use of the log transfer facility. Because the adequacy of an EIS is a legal question and no issue of material fact remains, we direct summary judgment for Shee Atika-Sealaska on the issue of the validity of the log transfer facility permit.

IV.

CONVEYANCE-FOR-EXCHANGE

Cube Cove was conveyed to Shee Atika and Sealaska by section 506 of ANILCA, 94 Stat. at 2409-12, which provides in relevant part:

(c)(1) In satisfaction of the rights of the Natives of Sitka, as provided in section 14(h)(3) of the Alaska Native Claims Settlement Act, the Secretary of the Interior, upon passage of this Act, shall convey subject to valid existing rights and any easements designated by the Secretary of Agriculture, the surface estate in the following described lands on Admiralty Island to Shee Atika, Incorporated:
[description of the Cube Cove land].

Concurrently with this conveyance, the Secretary shall convey the subsurface estate in the above described land to Sealaska, Incorporated. As a condition to such conveyances, Shee Atika, Incorporated, shall release any claim to land selections on Admiralty Island other than those lands described in this subsection (and Sealaska shall release any corresponding subsurface rights).

. . .

(d) In recognition of the considerable land selection costs incurred by Shee Atika, Incorporated (and two other Native Corporations), in determining the validity of land withdrawals on Admiralty Island under section 14(h)(3) of the Alaska Native Claims Settlement Act, and in identifying suitable lands for exchange outside Admiralty Island, the Secretary of the Interior shall reimburse those corporations for such reasonable and necessary land selection costs, including all costs for negotiating land exchanges, court costs, and reasonable attorney’s and consultant’s fees, incurred prior to the date of conveyance of such land to such Native Corporations.

Sierra-Angoon assert that the Cube Cove land was conveyed to Shee Atika solely as a bargaining tool for a future exchange with the Department of Interior for other land, and not for the purpose of timber harvesting at Cube Cove itself.

Sierra-Angoon’s only support for this assertion are some ambiguous, off-hand remarks of Senators in the uncorrected transcript of a Senate Committee mark-up session on ANILCA. Mark-up Session on S.9, Alaska Lands, Transcript of Proceedings, Senate Committee on Energy & Natural Resources, 96th Cong., 1st Sess. 531, 533, 534, 541 (1979). Shee Atika-Sealaska dispute the accuracy of the mark-up comments and offer lengthy and persuasive legislative history indicating that the conveyance was not for exchange purposes only. They particularly point out ANILCA § 1302(b), 16 U.S.C. § 3192(b), which provides that “lands located within the boundaries of a conservation system unit which are owned by . . . a Native Corporation or Native Group which has Natives as a majority of its stockholders . . . may not be acquired by the Secretary without the consent of the owner.”

Sierra-Angoon’s lack of support is telling, because the conveyance-for-exchange is Sierra-Angoon’s major argument in the appeal, and many of the other arguments rely on this one. Most of the restrictions on the use of the Cube Cove land that Sierra-Angoon now urge would defeat any other purpose the conveyance might serve. Only if the conveyance was purely for the purpose of a future exchange are these restrictions compatible with it. We refuse to attribute to Congress the purpose to place such restrictions on land-use absent a clear expression of intent. In light of the history and context of section 506(c), we find the conveyance to Shee Atika was not for purpose of exchange only.

Sierra-Angoon argue at length that section 503(d) of ANILCA, 94 Stat. at 2400, should be applied to prevent timber harvesting on the Cube Cove lands. Section 503(d) provides:

Within the Monuments, the Secretary shall not permit the sale of [sic] harvesting of timber: Provided, That nothing in this subsection shall prevent the Secretary from taking measures as may be necessary in the control of fire, insects, and disease.

Except for the Cube Cove inholding, Admiralty Island consists entirely of public lands. Sierra-Angoon argue that logging is already prohibited on the public lands on Admiralty Island by virtue of sections 503(b), (c), and (f)(1), relying on “common sense” readings of the sections (i.e., the establishment of a Monument, the provision for its protection, and the withdrawal of the land from disposition imply that the land will not be logged). Subsection (d) must therefore apply to the Cube Cove inholding, Sierra-Angoon argue, or the subsection is superfluous. As Shee Atika-Sealaska point out, however, none of the other sections cited prohibits timber harvesting, either expressly or by reference to another statute. Cf. 16 U.S.C. § 472a(a) (timber harvesting not per se prohibited in National Monuments).

Sierra-Angoon also argue that their interpretation of section 503(d) is compelled by the “underlying protective purposes” of ANILCA. See Southeast Alaska Conservation Council, Inc. v. Watson, 697 F.2d 1305, 1309 (9th Cir. 1983). They cite a number of restrictions on the uses of the public lands on Admiralty Island and argue that allowing Shee Atika unrestricted use of the remainder of the island is anomalous. They also cite a number of restrictions on private land use involving other national preserves and monuments.

All of these are arguments the court considered in Angoon I, 749 F.2d at 1415-18.[4] The court considered the legislative history and the purpose of ANILCA and held that reading section 503(d) to prohibit logging on the Cube Cove inholding would forbid the land’s only real economic use and defeat the purpose of section 506(c)’s conveyance of the land. The court therefore concluded that section 503(d)’s prohibition against the harvest of timber “within the Monument” applied only to public lands within the Monument and not to Shee Atika’s private land. Id. at 1418.

Sierra-Angoon appear to raise one new argument that was not addressed by the Angoon I panel. They argue that timber harvesting is not the only economically feasible use of the Cube Cove land. Sierra-Angoon claim that the Cube Cove land has value that can be realized by exchanging the Cube Cove land for other land that would presumably have more direct utility. Sierra-Angoon note that the government may trade lands of equal or even greater value for the Shee Atika land, See ANILCA § 1302(h), 94 Stat. at 2475; ANCSA § 22(f), 43 U.S.C. § 1621(f), and that many Native Corporations have made such exchanges at premiums as high as thirty percent.

This argument is in essence identical to Sierra-Angoon’s argument that Congress conveyed the Cube Cove inholding to Shee Atika solely for the purpose of a future exchange. If Congress intended the conveyance to confer an economic benefit on Shee Atika and at the same time in section 503(d) prohibited Shee Atika from logging, then Congress must have conveyed the Cube Cove inholding solely for the purpose of exchange. As discussed above with regard to section 506(c) itself, the provision for voluntary exchange makes this conclusion unreasonable.

Sierra-Angoon next argue that, even without section 503(d), section 503(c) of ANILCA, 94 Stat. at 2399-400, imposes a duty on the government to mitigate the effects of any timber harvesting on Admiralty Island. Section 503(c) provides:

Subject to valid existing rights and except as provided in this section, the National Forest Monuments (hereinafter in this section referred to as the “Monuments”) shall be managed by the Secretary of Agriculture as units of the National Forest System to protect objects of ecological, cultural, geological, historical, prehistorical, and scientific interest.

Sierra-Angoon cite a number of other specific statutes that impose such duties on the government and court cases that uphold the government’s power to perform them. Sierra-Angoon then cite the “irreparable damage to the Monument” that would result from timber harvesting at Cube Cove and conclude that the Secretary is required to mitigate this harm. The court concluded in Angoon I that such a reading of section 503(c) would inhibit the only economic benefit of the section 506(c) transfer. This conclusion is still sound and we follow it here.[5]

V.

DURATION OF HARVESTING RESTRICTIONS

Sierra-Angoon also argue that timber harvest on the Cube Cove inholding is subject to section 22(k) of ANCSA, 43 U.S.C. § 1621(k), which provides: 

Any patents to lands under this chapter which are located within the boundaries of a national forest shall contain such conditions as the Secretary deems necessary to assure that:

(1) the sale of any timber from such lands shall, for a period of five years, be subject to the same restrictions relating to the export of timber from the United States as are applicable to national forest lands in Alaska under rules and regulations of the Secretary of Agriculture; and

(2) such lands are managed under the principle of sustained yield and under management practices for protection and enhancement of environmental quality no less stringent than such management practices on adjacent national forest lands for a period of twelve years.

The federal regulations implementing section 22(k) interpret these time limits as running from the date of enactment (Dec. 18, 1971), and thus both time limits have now expired. See 43 C.F.R. § 2650.4-5 (1985). Sierra-Angoon argue that the regulation misinterprets the statute. Because the patent must contain the conditions, they argue, the plain language of the statute requires that the conditions run from the date of conveyance, not the date of enactment.

We will affirm the Secretary’s interpretation of section 22(k) if it is within the range of reasonable meanings of the statute’s language and it comports with the statute’s purposes. See Sudomir v. McMahon, 767 F.2d 1456, 1459 (9th Cir. 1985). Section 22(k) is itself silent about the date from which the time periods are to run, and the remainder of the statute makes Congress’ intent no clearer.

Sierra-Angoon cite a number of other provisions of ANCSA that specify time periods that expressly begin on the date of enactment, e.g., sections 2(c), 7(b), 12(c)(3), and 17(d)(2)(B) (43 U.S.C. §§ 1601(c), 1606(b), 1611(c)(3), and 1616(d)(2)(B)). They ask the court to infer that, by failing to tie the section 22(k) time periods to the date of enactment, Congress intended that the periods run from the only other plausible date, the date of conveyance. This inference is a weak one at best. Other provisions of ANCSA contain similar ambiguous time limitations. The phrase “for a period of five years” appears in a similar context in section 22(c), 43 U.S.C. § 1621(c), and we have construed that time limitation to run from the date of enactment. Alaska Miners v. Andrus, 662 F.2d 577 (9th Cir. 1981). Further, Sierra-Angoon expect a degree of consistency that cannot be presumed in the context of complex legislation such as ANCSA. The substance of section 22(k) appeared for the first time as section 23(v) of S.35 less than two months before final passage of ANCSA, and achieved its present form during a hurried Senate floor debate on the day the Senate passed its version of the bill. 117 Cong. Rec. 38,465-66 (1971). The ambiguity appears to result more from accident than design.

The legislative history is inconclusive. Sierra-Angoon rely on the rejection on the Senate floor of an amendment to the statute that would have explicitly started the time period from the date of enactment. They cite the following exchange:

Mr. GRAVEL. . . . I wonder if we could dot the “i,” and provide the 5 years would run from enactment of this legislation. Would my colleague agree on that point?
Mr. STEVENS. This would make it 5 years. That could be discussed in conference.

117 Cong. Rec. 38,466 (1971) (remarks of Senators Gravel and Stevens). The failure to “dot the ‘i'” might at worst reflect a disagreement about the application of section 22(k) that Congress chose to leave to the Secretary to resolve, not a “rejection” of an amendment. Cf. Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 865, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984) (Congress can leave to appropriate agency resolution of competing statutory policies). Indeed, subsequent legislative history suggests congressional acquiescence to 43 C.F.R. § 2650.4-5. In considering ANILCA, Congress acknowledged the Secretary’s interpretation of section 22(k), but did not see fit to overturn it. The Senate report on ANILCA states that ANCSA “restricts the management of lands conveyed from the national forests to native corporations for 12 years. This 12-year period runs from the date of [ANCSA] through December, 1983.” S. Rep. No. 413, 96th Cong., 1st Sess. 261-62 (1979), reprinted in 1980 U.S. Code Cong. & Ad. News 5070, 5205-06. 

The Secretary has the principal responsibility for administering ANCSA and his interpretation is entitled to deference. Doyon Ltd. v. Bristol Bay Native Corp., 569 F.2d 491, 496 (9th Cir.), cert. denied, 439 U.S. 954, 99 S. Ct. 352, 58 L. Ed. 2d 345 (1978). Sierra-Angoon urge us not to defer to the Secretary’s interpretation because, they argue, the agency has not held a consistent view of the statute. See, e.g., Skidmore v. Swift & Co., 323 U.S. 134, 140, 89 L. Ed. 124, 65 S. Ct. 161 (1944). They note that two proposed versions of 43 C.F.R. § 2650.4-5 measured the section 22(k) time periods from the date of conveyance, see 38 Fed. Reg. 6505-06 (1973); 37 Fed. Reg. 19,636 (1972), while the final regulation adopted time periods from the date of enactment without explaining the change. But the inconsistency the courts have frowned upon is in official interpretations. To hold a final interpretation must be consistent with draft regulations would deprive the rulemaking process of flexibility, transforming proposed regulations into official actions that agencies would be hesitant to reconsider. See International Harvester Co. v. Ruckelshaus, 155 U.S. App. D.C. 411, 478 F.2d 615, 632 (D.C. Cir. 1973).

The Secretary’s interpretation is entitled to great deference as a “longstanding contemporaneous administrative construction,” upon which interested persons are likely to have relied. Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 120, 64 L. Ed. 2d 766, 100 S. Ct. 2051 (1980). Native corporations that built facilities to service the “round log” export market using timber from lands conveyed to them under ANCSA may have relied upon 43 C.F.R. § 2650.4-5 for assurances that their exports would be free of restriction. If we were to read the section 22(k)(1) export restrictions as still operative today, their investments could be impaired. 

Sierra-Angoon urge us not to defer to the agency because the interpretation issue requires no agency expertise. We disagree. The Secretary’s interpretation of section 22(k) involved a reconciliation of competing policies that entailed “more than ordinary knowledge” of the regulated matters. Chevron U.S.A., 467 U.S. at 844 (quoting United States v. Shimer, 367 U.S. 374, 382, 6 L. Ed. 2d 908, 81 S. Ct. 1554 (1961)). Congress intended ANCSA and section 22(k) to accomplish several competing goals, including: (1) to create viable, profitable Native Corporations, See Ukpeagvik Inupiat Corp. v. Arctic Slope Regional Corp., 517 F. Supp. 1255, 1262 (D. Alaska 1981); (2) to prevent “haphazard and disjointed management” of forest lands until the Native Corporations could develop their own management plans to govern the tracts they selected, S. Rep. No. 405, 92d Cong., 1st Sess. 164 (1971); (3) to prevent the Native Corporations from immediately selling off their resources to raise capital the government would be providing them over the ensuing ten years anyway, see 117 Cong. Rec. 46,965 (1971) (remarks of Sen. Stevens); and (4) to cushion the blow to local sawmills that relied on export restrictions applicable to timber taken from Forest Service lands.

The Secretary’s interpretation furthered the creation of profitable Native Corporations by lifting export restrictions at an early date. It also limited “haphazard and disjointed management” by setting a date certain for the expiration of the time limits. Starting the time running from the date of conveyance would result in a confusing, staggered set of limits, especially for Native Corporations (such as Sealaska) that have received different parcels at different times. It limited Native exploitation of the lands for five years, the time period intended to be required for federal distribution of the majority of the money settlements; see ANCSA § 6(a), 43 U.S.C. § 1605(a). And it gave the local timber industry breathing space during a limited transitional period to prepare for the relaxation of import restrictions. The Secretary’s interpretation should not be disturbed unless it is unreasonable. See Chevron U.S.A., 467 U.S. at 844. We find it to be consistent with both the statute’s policies and its literal language.

VI.

SUBSISTENCE RIGHTS

Sierra-Angoon assert that section 810 of ANILCA, 16 U.S.C. § 3120, requires “subsistence evaluations” of various government actions: the Secretary’s conveyance of Cube Cove to Shee Atika under section 506(c) of ANILCA; the issuance of permits by the EPA and Corps for the log transfer facility under sections 402 and 404 of the Clean Water Act, 33 U.S.C. §§ 1342 and 1344; the Bureau of Indian Affairs’ loan to Shee Atika; and the Forest Service’s “duty” pursuant to ANILCA § 503(c) and ANCSA § 22(k) to protect the monument lands. Section 810(a) provides in relevant part: 

In determining whether to withdraw, reserve, lease, or otherwise permit the use, occupancy, or disposition of public lands under any provision of law authorizing such actions, the head of the Federal agency having primary jurisdiction over such lands or his designee shall evaluate the effect of such use, occupancy, or disposition on subsistence uses and needs, the availability of other lands for the purposes sought to be achieved, and other alternatives which would reduce or eliminate the use, occupancy, or disposition of public lands needed for subsistence purposes.

As the language indicates, this provision affects agency determination of “whether to lease or otherwise permit the disposition of public lands.” Village of Gambell v. Clark, 746 F.2d 572, 579 (9th Cir. 1984). The district court concluded that the government had taken no action affecting “public lands” and that section 810(a) was therefore inapplicable.

Sierra-Angoon argue that the spillover effect of the private use of Cube Cove on the subsistence use of the public lands on the rest of Admiralty Island brings the government’s actions within section 810(a). The government’s actions, they argue, make the logging operation both possible (the conveyance) and economically feasible (the log transfer facility permit, the loan), and the logging operation in turn affects the public lands of the monument. Sierra-Angoon urge the court to read section 810 broadly, See Gambell, 746 F.2d at 581, and to focus on the actual effects on public lands of the government actions authorizing use of private lands. Cf. Adler v. Lewis, 675 F.2d 1085, 1091-92 (9th Cir. 1982) (under 49 U.S.C. § 1653(f), highway construction activities that significantly adversely affect public park lands “use” the park lands).[6]

Even if we were to read “public lands” this broadly, however, subsistence evaluations would not be required here for several reasons. First, none of the agencies Sierra-Angoon cite has “primary jurisdiction” over the public lands used for subsistence, as required by section 810. Second, the agency that does have such jurisdiction, the Department of Agriculture, has taken no action regarding the Cube Cove land that would invoke section 810. Cf. Alaska v. Andrus, 591 F.2d 537, 540 (9th Cir. 1979) (inaction insufficient to require an EIS under NEPA). In addition, other provisions of ANILCA tend to belie the applicability of section 810 to private lands. E.g., ANILCA § 802(3), 16 U.S.C. § 3112(3) (“Federal land managing agencies . . . shall cooperate with adjacent landowners and land managers, including Native Corporations . . . .”); id. § 810(d), 16 U.S.C. § 3120(d) (“After compliance . . ., the head of the appropriate Federal agency may manage or dispose of public lands under his primary jurisdiction . . . .”).

It seems likely that, as Sierra-Angoon argue, a subsistence evaluation of the government’s Cube Cove actions would be beneficial and consistent with the purpose of ANILCA. The plain language of the statute, however, cannot fairly be read to require such an evaluation for actions regarding private lands. Sierra-Angoon argue strenuously that they are not advocating regulating private lands but only spillover “use” of public lands. This seems a distinction without a difference. We affirm the district court’s holding that section 810 is inapplicable to Shee Atika’s use of Cube Cove.

Sierra-Angoon also claim that Shee Atika’s activities will violate the Angoon residents’ rights to continued subsistence uses of Admiralty Island under section 506(a)(2) of ANILCA, 94 Stat. at 2407. Section 506(a)(2) provides:

Nothing in this section shall affect the continuation of the opportunity for subsistence uses by residents of Admiralty Island, consistent with title VIII [ANILCA §§ 801-816, 16 U.S.C. §§ 3111-3126] of this Act.

The district court found that section 506(a)(2) did not apply to the conveyance to Shee Atika under section 506(c). We agree. As used in the statute, “this section” refers only to section 506(a), which granted other Admiralty Island lands to a different Native Corporation, Kootznoowoo, Incorporated, and not to the whole of section 506, which includes the grant to Shee Atika. Each of subsections (a), (b), and (c) of section 506 involves a separate Native Corporation and is independent of the others. Subsection 506(a)(2) is placed between two other provisions, subsections 506(a)(1) and 506(a)(3), that exclusively concern the Kootznoowoo grant. We conclude that Congress intended subsection 506(a)(2) to apply only to the Kootznoowoo grant.

Sierra-Angoon argue that “this section” is the whole of section 506 and that the restrictions of 506(a)(2) are compatible with the conveyance to Shee Atika because the land was conveyed for the purpose of exchange (discussed supra, section IV). They also argue that section 506(a)(2) would be superfluous if it did not apply to the Shee Atika inholding because Angoon’s subsistence use of public lands is already protected by sections 503(b), (c), and (f)(1), and title VIII. Under our view that “this section” is only section 506(a), however, the provision has meaning and yet does not affect the Shee Atika conveyance.

In a similar vein, Sierra-Angoon argue that the protections of section 506(a)(2) must be broader than those of title VIII or the former is superfluous. However, Congress probably included the phrase “consistent with title VIII” to ensure section 506(a) did not undermine title VIII, not to provide broader protections.

Sierra-Angoon also assert that the Secretary breached his duty under ANILCA § 811, 16 U.S.C. § 3121, to guarantee residents of Angoon access to their subsistence lands. Section 811(a) provides: 

The Secretary shall ensure that rural residents engaged in subsistence uses shall have reasonable access to subsistence resources on the public lands.

Sierra-Angoon assert that the Angoon residents’ traditional use of Cube Cove as a point of access to the other public lands in the Monument requires the Secretary to restrict Shee Atika’s logging, road building, and other projects in Cube Cove to accommodate that use. Although Shee Atika’s activities may have some of the effects Sierra-Angoon assert, the language of section 811(a) must be stretched a long way to allow — much less require — the Secretary to restrict the use of private land to assure access to subsistence resources on public lands. We affirm the district court’s grant of summary judgment on this issue.

VII.

CONCLUSION

In light of ANILCA’s grant of Cube Cove to Shee Atika, the 1982 legislation confirming it, and the 1986 legislation recognizing it, we hold Congress intended Shee Atika to have the opportunity to harvest timber on the Cube Cove land and not merely to be able to exchange it for another parcel. We reverse the district court’s judgment invalidating the permit for the construction and operation of the log transfer facility and enjoining use of the facility. We affirm in all other respects.

REVERSED IN PART AND AFFIRMED IN PART.

The native Alaskan village corporation Aleknagik and its city and village council brought suit in the district court against the Secretary of the Interior and various individual defendants. The village councils of Port Graham and English Bay intervened as defendants. The district court granted summary judgment for the defendants, and we consider the appeal by the nonprevailing parties. We affirm.

The case turns on the interpretation of statutes relating to the creation and operation of federal townsite laws in Alaska. In 1891 and 1926, Congress extended the operation of federal townsite laws to Alaska. 43 U.S.C. § 732 (repealed 1976); Alaska Native Townsite Act of 1926, 43 U.S.C. §§ 733-36 (repealed 1976) (ANTA). To bring about formation of a townsite, its occupants were required by ANTA to apply to the Bureau of Land Management for a survey of the proposed exterior boundaries. After the survey, and upon a petition by a majority of the occupants to the Secretary, the townsite’s interior was surveyed to be divided into lots and blocks. The petition also would include a request for the appointment of a townsite trustee. This process had the effect of segregating the land from further disposal under public land laws.

After segregation, the occupied areas of the townsite were subdivided by the United States into blocks, lots, streets, alleys, and municipal public reservations. Lots owned by non-natives paid an assessment for the survey. 43 C.F.R. §§ 2565.3(a), (b) (1970). Other areas of the townsite remained unsubdivided until occupied. Following subdivision, the Secretary issued patents for the land, allowing the trustee to issue deeds to occupants after payment of any purchase price or assessments. The date of the subdivision survey was the last day for new claims within the subdivision. 43 C.F.R. § 2565.3(c) (1970). Once the subdivision survey was complete, all unclaimed lots could be sold by the trustee at a public sale. 43 C.F.R. § 2565.5 (1970). Proceeds of sales went to the municipality. All unsold lots were deeded to the municipality, a provision which is of central importance in this case. 43 C.F.R. § 2565.7 (1970). After all lands within the townsite trust were progressively subdivided and distributed, the townsite trust terminated. Thus, the distribution process had two major steps. The first step was the segregation, which set aside the townsite. The second step was subdivision, which led to distribution and conveyances of the land.

In 1971 Congress enacted the Alaska Native Claims Settlement Act. 43 U.S.C. §§ 1601-28 (1982) (ANCSA). ANCSA authorized the conveyance of some 44 million acres to Alaskan native corporations. One of ANCSA’s key provisions withdrew public lands surrounding native villages from all public appropriations, except for lands “subject to valid existing rights.” 43 U.S.C. § 1610(a)(1) (1982).

In administering ANCSA, the Secretary was required to determine whether townsite land that had been segregated, but not yet subdivided and distributed, was within this exception for “valid existing rights.” In 1972 the Director of the Bureau of Land Management issued a memorandum concluding that if the occupants had filed their petition to segregate, i.e. if the occupants had begun the first step of the process, before ANCSA’s enactment, the land came within the existing rights exception. Shortly after issuance, the Acting Secretary of the Interior approved the memorandum. Although the memorandum was not published, its contents were made known to native corporations.

In 1976 Congress repealed ANTA. Federal Land Policy and Management Act of 1976, Pub. L. No. 94-579, § 703(a), 90 Stat. 2743, 2789-90 (1976). There remains, however, the question whether the Secretary properly allowed distribution of land within townsites between 1971 and 1976. Additionally, the intervenor defendants argued before the district court that the legislation repealing ANTA had been incorrectly interpreted to foreclose new entries, post-1976, on townsite lands under townsite laws, but this argument has not been pursued on appeal. The major issue for our resolution is whether the Secretary’s interpretation of the existing rights exception contained in 43 U.S.C. § 1610(a)(1) should stand.

In an earlier phase of this case, on appeal from the district court’s denial of a preliminary injunction, we concluded that preliminary injunctive relief should be granted to the extent necessary to prohibit the Secretary from granting deeds, so that the status quo would be maintained pending disposition of the entire case. Aleknagik Natives Ltd. v. Andrus, 648 F.2d 496 (9th Cir. 1980). In the course of that opinion, we reached preliminary conclusions that the district court did not adopt after considering arguments by all of the parties below. We now agree with the district court’s analysis, which it reached after a full hearing and careful consideration of the consequences of the Secretary’s interpretation with respect to individual occupants, municipal corporations, and village corporations, including the effect of dividing surface and subsurface rights. Aleknagik Natives, Ltd. v. United States, 635 F. Supp. 1477 (D. Alaska 1985). We adopt the well-reasoned and extensive opinion of the district court as to all of the issues raised on this appeal, and set forth here a summary of those issues and of our conclusions.

Appellants contend that the Secretary’s position was incorrect. They argue that only townsite land which had reached the subdivisional step should fall within the existing rights exception. We reject that argument and uphold the Secretary’s interpretation, as did the district court.

We rule at the outset that we owe the Secretary’s interpretation considerable deference. Kunaknana v. Clark, 742 F.2d 1145, 1150 (9th Cir. 1984); Jones v. Giles, 741 F.2d 245, 249 (9th Cir. 1984). His interpretation was reasonable.

In their challenge to the Secretary’s interpretation, appellants point out that at the time of segregation, municipalities are not certain to receive any land. A municipality’s receipt of any parcel is contingent upon both completion of a subdivision map and an occupant’s not choosing the parcel. These contingencies, appellants assert, take a municipality’s interest outside the statutory phrase “valid existing rights.”

We conclude that “valid existing rights” does not necessarily mean vested rights. Under the Act before its repeal, a municipality, and all individuals who had occupied specific lots within the subdivision limits, had a legitimate claim for municipal control of any unoccupied lots, control which would enhance the corporate sense of community and the powers of the municipality to control its immediate surroundings. It is rational to conclude that when the Congress repealed the law and enacted a savings clause for “existing rights,” that this claim would be preserved. The term “valid existing rights” does not necessarily mean present possessory rights, or even a future interest in the property law sense of existing ownership that becomes possessory upon the expiration of earlier estates. Legitimate expectations may be recognized as valid existing rights, especially where the expectancy is created by the government in the first instance. The claim here is all the more compelling because its holder is the municipality, representing in the corporate sense the individual aspirations of separate lot occupants who were entitled to rely upon the municipality’s ability to own and control unsold and unoccupied lands. A government is most responsible when it recognizes as a right that which is not strictly enforceable but which flows nevertheless from the government’s own prior representations. That in essence is what the Secretary has done here. The Secretary’s reading of the words “valid existing” to mean something other than “vested” is reasonable.

Appellants contend that the legislative history points to a more limited interpretation and argue that Congress intended to provide native village corporations with the central lands in the village, as well as a buffer zone of land around the village. They cite legislative reports that identify the need to “provide protection and a buffer from the intrusions of others.” S. Rep. No. 925, 91st Cong., 2d Sess. 59 (1970). This buffer and protection, appellants claim, will be destroyed if non-natives are allowed to occupy these lands.

Although we agree that resort to legislative history is appropriate, we are unpersuaded by appellants’ interpretation. It would have been reasonable for the Secretary to assume in 1971-72 that most individuals who would benefit from the continuation of settlement would be natives. In fact between 1971 and 1976 almost two-thirds of these deeds went to natives. Further, only through continuation of the townsite distributions could natives receive restricted deeds that would increase the likelihood that they would be able to retain their lands and eliminate any pressure to generate a profit from its sale. 43 C.F.R. §§ 2564.4, 2564.6-2564.7 (1971). The Secretary’s interpretation was reasonably consistent with the buffer zone purpose of ANCSA.

The Secretary’s interpretation also had beneficial effects that are completely consistent with ANCSA’s purpose of setting up a reasonable and rational land allocation system. Under appellants’ proposed interpretation, all vacant, unsubdivided townsite lands would have been withdrawn as of 1971. The surface estate in these lands would then have been conveyed to the local village corporations as part of their total ANCSA entitlements. The subsurface estate, however, would have been conveyed to the corresponding regional corporations. See 43 U.S.C. §§ 1610(a)(1), 1611(a)(1), 1613(f) (1982). Such divided ownership is not necessarily consistent with sound municipal planning.

Appellants make two other arguments, both of which can be dismissed quickly. Appellants contend that even if the Secretary’s interpretation of section 11(a)(1) of ANCSA is upheld, the Secretary violated ANTA section 3, 43 U.S.C. § 735 (repealed 1976), by failing to administer townsite lands exclusively for natives. Section 3 of ANTA does not, however, say “exclusively.” It merely says the Secretary “is authorized to” extend the townsite laws to Indian and Eskimo villages. We need look no further than the words of the statute to reject appellants’ argument on this score.

Finally, appellants argue that the Secretary violated the Administrative Procedure Act, 5 U.S.C. § 553, section 25 of ANCSA, 43 U.S.C. § 1624 (1982), and the Freedom of Information Act, 5 U.S.C. § 552(a) (1) (D), by not publishing the interpretation of ANCSA. We think, however, that the district court properly applied our holdings in Alcaraz v. Block, 746 F.2d 593, 613 (9th Cir. 1984), and Powderly v. Schweiker, 704 F.2d 1092, 1098 (9th Cir. 1983), in reaching the conclusion that the memorandum was not “substantive,” as that term is used in the statutes.

The judgment of the district court is AFFIRMED.

INTRODUCTION

Plaintiff, Tyonek Native Corporation (“Tyonek”), a village corporation organized under the Alaska Native Claims Settlement Act, (“ANCSA”), 43 U.S.C. §§ 1601 et seq., appeals from an adverse judgment in its action against defendant, Cook Inlet Region, Inc., (“Cook Inlet”), one of twelve regional corporations established under ANCSA.

The Alaska Native Claims Settlement Act was enacted into law “to provide an equitable solution to the claims made by the Natives of Alaska through a combination of land and money.” H.R. 92-523, 92nd Cong., 1st Sess., 1971 U.S. Code Cong. & Ad. News 2192, 2193. Under ANCSA, the surface estate in some 22 million acres of land was patented to village corporations such as Tyonek. The subsurface estate in those same lands was patented to regional corporations such as Cook Inlet. 43 U.S.C. §§ 1611, 1613. Lands so divided are referred to as the “dually owned lands.” Another 16 million acres, the “fee lands,” were patented in their entirety to regional corporations, but those corporations are required to distribute most of the revenues from the subsurface estate among all the regional corporations in Alaska. 43 U.S.C. § 1606(j).

This case arises with regard to land dually owned by Tyonek and Cook Inlet. The issue is whether sand and gravel reserves form part of Tyonek’s surface estate or Cook Inlet’s subsurface estate.

DISCUSSION

Against a background of recurring dispute between regional corporations and village corporations over the rights to sand and gravel, Tyonek brought this action for a declaratory judgment. Its brief complaint asked the district court for a declaration of Tyonek’s “surface rights in dually owned lands including their rights to all uses including movement and placement of sand, stone, gravel, pumicite and cinders.” In support of its complaint, Tyonek argued broadly that sand and gravel (which term we take to include stone, pumicite and cinders) is by its nature more appropriately considered part of the surface estate than of the subsurface estate. The district court was of the view that the question was controlled by our decision in Chugach Natives, Inc. v. Doyon, Ltd., 588 F.2d 723 (9th Cir. 1978), and that sand and gravel were generally a part of the subsurface estate. We agree.

Chugach, like this case, presented the question “whether sand and gravel are part of the surface or subsurface estate.” Id. at 725. It held that such deposits were part of the subsurface estate. The issue arose, however, on fee lands that were wholly owned by a regional corporation. For that reason, Tyonek contends that the question was a totally different one, and that Chugach’s decision regarding surface versus subsurface estates on fee lands simply does not address the issue of surface versus subsurface rights on dually owned lands. 

Chugach cannot be brushed aside that easily, however. Important economic rights turned on the distinction between surface and subsurface rights in that case, because revenues from the subsurface estate are broadly shared under ANCSA. 43 U.S.C. § 1606(j). That economic distinction, which was a substantial basis for Chugach’s conclusion that sand and gravel belonged to the subsurface, also exists in this case. Moreover, we stated in Chugach:

Technically, the only issue on appeal here is whether the district court erred in holding that sand and gravel are part of the subsurface estate in lands entirely owned by the Regional Corporations. Our decision on this issue, however, necessarily affects the disposition of sand and gravel on dually owned lands, since, as we discuss below, the term “subsurface estate” under ANCSA must have the same meaning regardless of who owns the surface estate. Thus, we exercise our discretion to review the reasoning and holdings of the district court with respect to dually owned, as well as wholly owned, lands.

588 F.2d at 725 n.7. The district court in this case understandably construed this language to control the issue presented here. It is true, as Tyonek points out, that in Aleut Corp. v. Tyonek Native Corp., 725 F.2d 527 (9th Cir. 1984), we characterized the above passage from Chugach as dictum, but we also stated that it was likely to have a stare decisis effect adverse to Tyonek. Id. at 529-30. That likelihood has now come to pass. Chugach and its reasoning control this case.

Our conclusion that Chugach governs this case necessarily dispenses with many of the arguments of Tyonek, because they were rejected in Chugach. Tyonek’s analogies to provisions of ANCSA permitting village corporations to select surface lands and sand and gravel rights in National Wildlife Refuges or National Petroleum Reserves were rejected in Chugach, 588 F.2d at 729-30, as were its contentions founded on the first Koniag Amendment to ANCSA, id. at 730-31. Also rejected were arguments based on the economic and practical hardships to the villages if they did not own the sand and gravel. Id. at 731-32. Tyonek elaborates on those arguments more fully here than they were treated in Chugach, but any principled application of Chugach still requires their rejection. 

Tyonek invokes a post-Chugach amendment to ANCSA that retains for the villages “revenues from the sale of surface resources harvested or extracted from” village lands conveyed to a municipality. 43 U.S.C. § 1613(c). It argues that resources “extracted” can only be sand and gravel. But the legislative history indicates that Congress was aware of pending disputes over the ownership of gravel, and simply included that reference in case gravel were decided to belong to the surface estate. Alaska National Interest Lands Conservation Act of 1979: Hearings on H.R. 39 Before the House Comm. on Interior and Insular Affairs, 96th Cong., 1st Sess. 1018 (1979)(statement of Morris Thompson, President of Alaska Federation of Natives, Inc.). The same understanding of Congress underlies the second Koniag Amendment, ANILCA § 1427(1), which Tyonek also urges in its support. S. Rep. No. 96-413, 96th Cong., 1st Sett. 325, reprinted in [1980] U.S. Code Cong. & Admin. News 5070, 5269. In sum, we find nothing in any of the legislation urged by Tyonek that impugns or undermines the authority of Chugach and its application to this case. We also find no comfort for Tyonek in Watt v. Western Nuclear, Inc., 462 U.S. 36, 76 L. Ed. 2d 400, 103 S. Ct. 2218 (1983), in which the Supreme Court held that gravel was part of the mineral (i.e., subsurface) estate reserved to the United States in lands conveyed pursuant to the Stock-Raising Homestead Act of 1916.

For all these reasons, we affirm the judgment of the district court that general ownership of sand and gravel on dually owned lands lies with the subsurface estateholder.

Incidental Rights

Tyonek urges this court, as it did the district court, to declare its incidental ownership rights. By “incidental rights” it apparently refers to uses of sand and gravel incidental to the enjoyment of the surface estate. The district court declined to rule on this claim because, unlike Tyonek’s arguments on the broader issue of commercial extraction and sale of sand and gravel, the incidental rights issue had not been extensively or adequately briefed. Tyonek contends that the district court should have addressed this issue and now asks this court to do so.

Except for anecdotal references in the briefs, no facts have been presented which would allow us to rule on a “real and substantial controversy admitting of specific relief through a decree of conclusive character, as distinguished from an opinion advising what the law would be on a hypothetical state of facts.” Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 241, 81 L. Ed. 617, 57 S. Ct. 461 (1937). We have no idea how broad these hypothetical “incidental” uses would be, or the context in which they would be asserted. The function of declaratory relief is precise resolution and not general admonition. United States v. Washington, 759 F.2d 1353, 1357 (9th Cir. 1985) (en banc) cert. denied, 474 U.S. 994, 88 L. Ed. 2d 358, 106 S. Ct. 407 (1985). Tyonek has not brought forth a justiciable controversy.[1] The district court did not abuse its discretion in refusing to rule on the claim of incidental rights. 

CONCLUSION

Chugach controls this case. The district court was therefore correct in concluding that the general ownership of sand and gravel deposits lies with the subsurface estateholder.

The district court did not abuse its discretion in ruling that Tyonek’s claim to the right of incidental uses of sand and gravel was not presented with sufficient concreteness to permit a decision. Whether or not the surface estateholder has a right of incidental use, and the extent of any such right, will have to await decision another day.

The judgment of the district court is AFFIRMED.

This appeal involves the statutory interpretation of the phrase “a primary place of business,” as contained in § 14(c)(1) of the Alaska Native Claims Settlement Act (ANCSA), 43 U.S.C. § 1613 (c)(1) (1986). Section 14(c)(1) requires a village corporation, upon receiving its interim conveyance of land from the federal government, to reconvey to the occupant any land used, as of December 18, 1971, as “a primary place of business.” Since 1969, George Kitchen, later with help from Steven Hakala, guided brown bear hunts on the Canoe Bay lands to which Atxam, a village corporation, now has title. They frequently started and ended their hunts at one particular site, where they erected a small cabin. Kitchen and Hakala claim that, since the cabin and the surrounding lands were “a primary place of business,” Atxam must reconvey title to them pursuant to § 14(c)(1). Kitchen and Hakala appeal the trial court’s grant of summary judgment in favor of Atxam. We conclude that Kitchen and Hakala’s cabin site was “a primary place of business.”

I.

For at least the last 30 years, George Kitchen has made a living as an air taxi pilot and hunting guide. In the fall of 1967, Kitchen began professionally guiding in the Canoe Bay area of the Alaska Peninsula, roughly halfway between the Bering Sea and the Pacific Ocean. Kitchen and his clients hunt predominantly brown bear and some caribou in this area. In 1969, Kitchen erected a prefabricated metal structure on the Canoe Bay site to serve as the base camp for his bear hunting operations. In his deposition, Kitchen described it as ten feet by twelve feet, “a garage type deal made out of more of a plastic than metal,” with no windows. After bears and strong winds tore down the structure, Kitchen re-erected similar prefabricated metal structures in 1970 and again in 1971 or 1972.

In 1974, Kitchen and Steven Hakala, a stepson, built a permanent structure made of plywood to serve as the base camp for the guiding operations.[1] The cabin is a one- room structure, 16 by 20 feet in dimension and contains an oil stove for heat, a cooking stove, five bunks, electric lights and various other pieces of furniture. An outhouse, also built in 1974, stands approximately 20 yards from the cabin. A bush airstrip which Kitchen uses when he flies in customers and supplies, is also located near the cabin.

Kitchen holds a guiding license which he obtained in 1958, and an exclusive area permit which he obtained in 1973 when the State of Alaska first allocated such permits. The exclusive area permit grants Kitchen exclusive rights to guide paying customers in the exclusive area of approximately 400 square miles.[2] In addition to his guiding operations in the Canoe Bay area, Kitchen also ran an air taxi business in the early 1970s and guided out of Teller, Kotzebue, and in the Wrangell and Talkeetna Mountains.

Kitchen’s guiding operations in the Canoe Bay area have typically proceeded as follows: Kitchen takes a maximum of six clients at a time and all necessary supplies into the cabin in the Canoe Bay area, by making several trips back and forth by plane. Although the majority of the time he uses the Canoe Bay cabin as the base camp, Kitchen occasionally uses a cabin at Minos Creek — about twenty miles away — as the base camp. From the base camp, Kitchen guides the group of hunters in the wilderness areas surrounding the base camp, setting up smaller “spike camps” wherever brown bears are spotted. Kitchen’s strategy is to hunt wherever the hunting is good.

Brown bear season was limited to a two-week period of time in May and a two-week period of time in October.[3] As a result, Kitchen’s use of the cabin and its environs was limited to these two-week periods of time with a couple of days added both before and after the two-week seasons to prepare for and clean up after the hunt.

Kitchen charged each hunter $4,000 for his guiding services in Canoe Bay in 1971. This price had risen to $7,000 per hunter by 1987, of which Kitchen profits $1,800 per hunter after expenses. Beginning in 1975, Hakala served as an assistant guide to Kitchen, aiding him in the guiding operations out of Canoe Bay. Kitchen and Hakala have an existing agreement that Hakala will take over Kitchen’s guiding operations when Kitchen, presently 72 years of age, retires.

Atxam Corporation is a Village Corporation. The United States government conveyed title to 12,500 acres in the Canoe Bay area to Atxam by Interim Conveyance No. 159 pursuant to § 14(a)(1) of ANCSA. The interim conveyance is subject to a number of exceptions and easements. Kitchen’s cabin is located on land described in the interim conveyance, to which Atxam presently has title. Accordingly, Atxam sued Kitchen and Hakala in superior court claiming that Kitchen and Hakala have committed and continue to commit a trespass by erecting a cabin on Atxam’s property and by leading hunting expeditions on Atxam’s lands. Atxam sought a permanent injunction against future trespasses, possession of the property and money damages. Kitchen and Hakala claim that they are entitled to have the area upon which the cabin is situated and the hunting areas they use in their guiding operations reconveyed to them under § 14(c)(1) of ANCSA.

After filing its complaint in the Superior Court, Third Judicial District, Atxam moved for partial summary judgment. The superior court granted Atxam’s motion for partial summary judgment, ordered Kitchen and Hakala to give possession of the cabin to Atxam, extinguished any claim that Kitchen and Hakala had to the lands described in the interim conveyance, and enjoined Kitchen and Hakala from entering upon or hunting on the land described in the interim conveyance. Atxam then moved the court to dismiss its claim for a money judgment for past trespasses and for entry of final judgment based on the court’s prior partial summary judgment order. The superior court granted Atxam’s motion and entered final judgment consistent with the summary judgment order. Kitchen and Hakala appeal from the superior court’s grant of partial summary judgment.

II.

The primary issue in this appeal concerns how the court should interpret the phrase “a primary place of business” as contained in § 14(c)(1) of ANCSA. In defending themselves against Atxam’s trespass claim, Kitchen and Hakala claim that they are entitled to have certain portions of Atxam’s land, which they have used as “a primary place of business,” reconveyed to them pursuant to § 14(c)(1) of ANCSA. Atxam’s interim conveyance explicitly states that it is subject to the reconveyance clause in § 14(c) of ANCSA which reads in pertinent part as follows:

Each patent issued pursuant to subsections (a) and (b) of this section shall be subject to the requirements of this subsection. Upon receipt of a patent or patents:

(1) the Village Corporation shall first 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; . . . .

(Emphasis added.) 43 U.S.C. § 1613(c)(1).

To date, no case has interpreted § 14(c)(1), and the legislative history of the Act provides no insight into this particular section. Both sides have provided the court with their interpretations of the phrase “a primary place of business,” neither of which wholly lacks merit.

The first step in interpreting an ambiguous phrase in a statute is to “construe[] [it] in light of the purpose of the enactment.” Commercial Fisheries Entry Comm’n v. Apokedak, 680 P.2d 486, 489-90 (Alaska 1984). Another rule of construction instructs the court to give effect to the plain meaning of the language. Wilson v. Municipality of Anchorage, 669 P.2d 569, 571-72 (Alaska 1983).

In the introductory section of ANCSA entitled “Congressional findings and declaration of policy,” Congress sets out the purposes of the Act:

Congress finds and declares that —
(a) there is an immediate need for a fair and just settlement of all claims by Natives and Native groups of Alaska, based on aboriginal land claims;
(b) 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, . . . .

43 U.S.C. § 1601. In ANCSA, Congress reiterated the United States’ policy of giving Native tribes “title to a portion of the lands which they occupied.” House Comm. on Interior and Insular Affairs, Alaska Native Claims Settlement Act of 1971, H.R. Rep. No. 523, 92d Cong., 1st Sess., reprinted in 1971 U.S. Code Cong. & Admin. News 2192, 2193.

Furthermore, Congress was sensitive to the impoverished condition of Natives and the lack of opportunity Natives have to improve their condition. Id. at 2196. Courts have adopted the policy of construing ambiguities in ANCSA in favor of Natives. United States v. Atlantic Richfield Co., 612 F.2d 1132, 1138-39 (9th Cir. 1980); Alaska Public Easement Defense Fund v. Andrus, 435 F. Supp. 664, 670 (D. Alaska 1977).

We do not, however, believe that Congress intended under ANCSA to convey lands to native corporations to the exclusion of those who had previously utilized the lands in an established, legal and routine fashion. Otherwise, we can find no reason for Congress to have included the reconveyance clause in § 14(c)(1). Thus, we believe that in § 14(c)(1), Congress intended to protect the existing rights of those using lands which would later become subject to an interim conveyance under ANCSA. Accordingly, we adopt an interpretation of the phrase “a primary place of business” which effectuates Congress’ intent to protect a wide array of existing legitimate businesses.

Kitchen and Hakala urge the court to adopt a common-sensical interpretation of “a primary place of business.” In essence, Kitchen and Hakala argue that since the cabin site served as the base camp of their guiding operations, the cabin site must have been Kitchen’s “primary place of business” on the relevant date, December 18, 1971.

Kitchen and Hakala argue that it is significant that Congress chose to use the indefinite article “a” instead of the definite article “the” to precede “primary place of business” in § 14(c)(1) of ANCSA. Kitchen and Hakala argue that in utilizing the article “a” Congress must have meant “that the primary place of business in question does not have to be the only place of business of an individual.” (Emphasis in original.) See Brooks v. Zabka, 168 Colo. 265, 450 P.2d 653, 655 (Colo. 1969) (“the definite article ‘the’ particularizes the subject which it precedes . . . . [and] is a word of limitation as opposed to the indefinite or generalizing force of ‘a'”).

Kitchen and Hakala’s argument requires further development. We recognize that a person can engage in more than one type of business. In fact, Alaskan residents, known for their independent and often untraditional ways of life, often do not engage in just one type of business. Instead, many Alaskans make a living from several different businesses such as fishing, hunting, guiding or some combination of these and other activities. We find that for each business in which a person engages, there can be only one primary place of business.[4] The primary place of any business is that place which serves as the center of activity for that business.

We turn now to Atxam’s proposed interpretation of a “primary place of business” which is more quantitative than Kitchen and Hakala’s. Atxam suggests the fulfillment of three requirements for a finding of “a primary place of business.” First, Atxam would require that the place of business be improved and not an “undeveloped piece of raw wilderness.” Second, Atxam would require some kind of permanent structure. Third, Atxam would require that the  place be used at least six months out of the year for business. Atxam’s definition goes too far. A set of rigid and arbitrary requirements would only serve to defeat Congress’ intent of protecting the valid and existing rights of those previously using the lands in question.

In interpreting the phrase “a primary place of business,” we are particularly mindful of the statutory context in which that phrase appears. Most of the lands subject to conveyance under ANCSA are remote lands, outside the confines of cities, towns and villages. In drafting § 14(c)(1), Congress must have had in mind those particular lands, and the nature of the particular  businesses that are ordinarily conducted on those lands. Much of that business is seasonal, and involves the use of structures that can hardly be considered permanent. [5] Atxam’s proposed requirements of a permanent structure and six months’ occupancy simply are not consonant with the realities of the businesses that Congress must have had in mind — namely, businesses conducted on rural or remote lands.[6] We are unwilling to adopt such a restrictive definition.

Since the facts in this case are undisputed, summary judgment is a proper procedure with which to resolve this case.[7] See Alaska R. Civ. P. 56(c). However, we believe that the undisputed facts dictate a result contrary to the result arrived at by the trial court. The facts indicate that Kitchen used the cabin and the immediate, surrounding area as the base for his brown bear guiding operations. Kitchen was a registered guide and had a state license to hunt in the area. He has guided out of the Canoe Bay area and, in particular, out of the cabin site in question, since 1969. Before Atxam received title to the lands, Kitchen legally operated his business out of the area. It seems clear to us that the reconveyance clause in ANCSA sought to protect existing uses of land such as Kitchen’s. Since the cabin was the nucleus of his guiding business, we conclude that it was a primary place of business.

We hold that, pursuant to § 14(c)(1), Atxam must reconvey the site of the cabin and curtilage to Kitchen because it was “a primary place of business” in 1971. We remand to the trial court to determine the size of the curtilage; that is, a reasonable area surrounding the cabin which Kitchen needs so that he can use the cabin as his own.[8] Additionally, Kitchen and Hakala are allowed to use the public easements, namely the coastline easement and the bush airstrip easement, contained in the interim conveyance to the same extent as the public.[9] However, we do not authorize Kitchen or Hakala to hunt on any of Atxam’s lands which are not in the designated curtilage or subject to the public easements without first getting permission from Atxam. To this extent, we affirm the trial court’s injunction, which enjoins Kitchen and Hakala from entering upon, crossing over or hunting on Atxam’s lands, as an appropriate remedy for a continuing trespass. See Sundquist v. Halloran, 5 Alaska 594, 600 (D. Alaska 1917) (legal remedy of money damages is inadequate and issuance of injunction proper in continuing trespass action due to the necessity of a multiplicity of suits).

The judgment of the superior court is REVERSED and this case is REMANDED for further proceedings consistent with this opinion.

---

Dissent by: RABINOWITZ

Dissent

RABINOWITZ, Justice, dissenting.

I agree with the majority’s acknowledgement that ANCSA was intended to benefit Natives, and that courts, to that end, have adopted the policy of construing ambiguities in favor of Natives. For that reason I cannot agree with the majority’s expansive interpretation of “a primary place of business,” which requires reconveyance of Native lands “to protect a wide array of existing . . . . businesses.”

Furthermore, even assuming arguendo that the majority’s interpretation of “a primary place of business” as “that place which serves as the center of activity for [a] business” comports with Congress’ intent, it does not support the result reached in this case. Although Hakala may have had separate primary places of business for his guiding and air taxi businesses, the cabin at issue here was not the primary place of business for his guiding business. In 1971, the determinative year for purposes of reconveyance, Hakala guided twenty parties. Only two of those twenty parties were guided out of the Canoe Bay cabin. I fail to see how a cabin that served as a base for only one-tenth of the activities of Hakala’s guiding business can be “the center of activity for that business” or the “nucleus of his guiding business” for purposes of Section 14(c)(1). I therefore dissent.

Mark Buettner and Henry G. Hamar brought a quiet title action against Kavilco, Inc., an Alaska native village corporation, claiming title to property under section 1613(c)(1) of the Alaska Native Claims Settlement Act. The district court granted summary judgment in favor of Kavilco, holding that Buettner’s and Hamar’s rights were governed wholly by section 1613(g) of the Act, to the exclusion of section 1613(c)(1). We reverse and remand.

I

FACTS

On July 13, 1971, Mark Buettner obtained a revocable and non-transferable special use permit from the United States Forest Service. The permit granted Buettner permission to build a year-round residence on Lot 7 of the Happy Harbor Residence Group, located on Kasaan Island near Ketchikan, Alaska. The permit, while renewable, expires December 31, 1990.

During the summer of 1971, Buettner and his wife began clearing the Happy Harbor lot and constructing their cabin. Meanwhile, they lived aboard a small cabin cruiser moored in the harbor nearby. By late October, winter was coming on. The Buettners had not completed their cabin, and a combination of the weather and dwindling finances forced them to leave for the winter. They returned to Happy Harbor in the spring of 1972 and finished building the cabin.

On March 13, 1972, Henry Hamar and his wife purchased a cabin located on Lot 8 of the Happy Harbor Residence Group from Carl Porter. The cabin had been used by Porter as his home since the winter of 1969-1970, also pursuant to a United States Forest Service special use permit. The Hamars obtained their own special use permit for Lot 8 in May of 1972. Their permit expires on December 31, 1991.

The native village of Kasaan is located on a separate island approximately five miles from Happy Harbor. Kavilco, Inc. is the native corporation for the village of Kasaan. In December of 1971, Congress passed the Alaska Native Claims Settlement Act, 43 U.S.C. §§ 1601-1629e (1986 & Supp. 1988) (“ANCSA”), which extinguished aboriginal land claims of Alaskan Natives and gave Alaska native corporations the right to select areas of public lands. Kavilco later selected as part of its land allotment under ANCSA the lots located at Happy Harbor. On December 4, 1979, the United States issued a land patent to Kavilco which included the Happy Harbor lots. This patent was issued subject to Buettner’s and Hamar’s special use permits under 43 U.S.C. § 1613(g).

In January 1980, the Forest Service transferred administration of the special use permits to Kavilco pursuant to 43 U.S.C. § 1613(g). Kavilco chose to administer the permits by sending new lease agreements to the permittees. These lease agreements increased the permittees’ rent. Buettner and Hamar refused to sign the new leases and instead sent Kavilco checks for the amounts required by the special use permits. Kavilco rejected the checks and unsuccessfully attempted forcible entry and detainer proceedings against Buettner and Hamar. On January 25, 1983, Buettner and Hamar commenced a quiet title action in Alaska state court. Kavilco removed the case to federal district court on the basis of federal question jurisdiction under 28 U.S.C. § 1441(b). The district court granted summary judgment in favor of Kavilco. Buettner and Hamar appeal.

II

ANALYSIS

A. Standard of Review

We review a grant of summary judgment de novo. Ford v. Manufacturers Hanover Mortgage Corp., 831 F.2d 1520, 1523 (9th Cir. 1987). Viewing the evidence in the light most favorable to the nonmoving party, we must determine whether there are any triable issues of material fact and whether the district court correctly applied the relevant substantive law. Ashton v. Cory, 780 F.2d 816, 818 (9th Cir. 1986). Questions of statutory interpretation are subject to de novo review. Mada-Luna v. Fitzpatrick, 813 F.2d 1006, 1011 (9th Cir. 1987).

B. Interpretation of ANCSA §§ 1613(c)(1) and 1613(g)

This appeal arises out of what the district court perceived as a tension between two subsections of ANCSA § 1613. Buettner and Hamar rely on ANCSA § 1613(c)(1), which provides:

Each patent issued pursuant to subsections (a) and (b) of this section shall be subject to the requirements of this subsection. Upon receipt of a patent or patents:

(1) the Village Corporation shall first 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 a headquarters for reindeer husbandry.

43 U.S.C. § 1613(c)(1). Buettner and Hamar argue that they occupied Lots 7 and 8 as their primary residences as of December 18, 1971, and, therefore, section 1613(c)(1) mandates that Kavilco convey title to these lots to them.

Kavilco contends that section 1613(g), rather than section 1613(c)(1), controls Buettner’s and Hamar’s claims. Section 1613(g) provides in pertinent part:

All conveyances made pursuant to this chapter shall be subject to valid existing rights. Where, prior to patent of any land or minerals under this chapter, a lease, contract, permit, right-of-way, or easement . . . has been issued for the surface or minerals covered under such patent, the patent shall contain provisions making it subject to the lease, contract, permit, right- f-way, or easement, and the right of the lessee, contractee, permittee, or grantee to the complete enjoyment of all rights, privileges, and benefits thereby granted to him. Upon issuance of the patent, the patentee shall succeed and become entitled to any and all interests of the State or the United States as lessor, contractor, permitter, or grantor, in any such leases, contracts, permits, rights-of-way, or easements covering the estate patented. . . . The administration of such lease, contract, permit, right-of-way, or easement shall continue to be by the State or the United States, unless the agency responsible for administration waives administration.

43 U.S.C. § 1613(g). The district court concluded that the Forest Service special use permits held by Buettner and Hamar were “valid existing rights” governed by section 1613(g). Further, the district court held that this precluded Buettner and Hamar from obtaining title to Lots 7 and 8 under section 1613(c)(1).

We disagree. A straightforward reading of section 1613(c)(1) does not preclude claimants like Buettner and Hamar from claiming rights under it. In cases involving statutory construction, “our starting point must be the language employed by Congress,” Reiter v. Sonotone Corporation, 442 U.S. 330, 337, 60 L. Ed. 2d 931, 99 S. Ct. 2326 (1979), and we assume “that the legislative purpose is expressed by the ordinary meaning of the words used.” Richards v. United States, 369 U.S. 1, 9, 7 L. Ed. 2d 492, 82 S. Ct. 585 (1962). Thus, “absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive.” Consumer Product Safety Commission v. GTE Sylvania, Inc., 447 U.S. 102, 108, 64 L. Ed. 2d 766, 100 S. Ct. 2051 (1980). The plain language of ANCSA § 1613(c)(1) requires conveyance of title to the surface estate to anyone occupying the land “as a primary place of residence” on the magic date of December 18, 1971. This section does not exclude Buettner and Hamar because of their permittee status.

Moreover, as permittees, Buettner and Hamar were entitled to occupy the land although it was owned by someone else. One who does not own land but who occupies it is either there with permission or without it. It would be an odd statute indeed which conferred rights to obtain a deed on persons occupying property without permission, but which denied these rights to lawful occupants. Consistent with this view, we recently held in Donnelly v. United States, 841 F.2d 968 (1988), that “trespassers could not take advantage of § 1613(c)(1).” Id. at 975. Also, section 1613(c)(1) does not apply to homesteaders because they are specifically covered by section 1621(b). If trespassers and homesteaders are beyond the reach of section 1613(c)(1), the section must apply to some other class of persons. We hold that permittees such as Buettner and Hamar are within this class. Thus, the district court erred in concluding that because Buettner and Hamar held permits for the occupancy of their lots they were precluded from asserting title claims under ANCSA § 1613(c)(1).

We discern no inconsistency between this plain reading of section 1613(c)(1) and the provisions of section 1613(g). The latter section applies to lessees, contractees, permittees, and grantees of rights-of-way and easements. It is true that a person with rights under section 1613(g) might also have rights under section 1613(c)(1). On the other hand, persons having rights under section 1613(g) will not necessarily come within the scope of section 1613(c)(1). For example, United States Forest Service special use permit-holders who did not occupy their sites as a primary residence on December 18, 1971, would be protected only by section 1613(g).

Finally, we note that our interpretation of section 1613(c)(1) comports with that given it by the Alaska Supreme Court. In Hakala v. Atxam Corporation, 753 P.2d 1144 (Alaska 1988), the Alaska court analyzed the “primary place of business” clause of section 1613(c)(1) in considering the claim of hunting guides who used a cabin site as their primary place of business. The Alaska court opined that while ANCSA was designed to protect rights of Alaska Natives, Congress did not intend “to convey lands to native corporations to the exclusion of those who had previously utilized the lands in an established, legal and routine fashion. Otherwise, [there was no discernible] reason for Congress to have included the reconveyance clause in [section 1613(c)(1)].” Id. at 1147. United States Forest Service permittees like Buettner and Hamar hold long-term, renewable permits. They are required to build and live in their residences. They thus appear to be the logical beneficiaries of section 1613(c)(1). Like the Alaska Supreme Court, we discern “no [other] reason for Congress to have included the reconveyance clause in [section 1613(c)(1)].”

But our holding that Buettner and Hamar may be able to assert rights under section 1613(c)(1) does not mean that they are entitled to prevail in this case. As to Buettner, the district court will have to determine whether, in light of all the relevant facts, he occupied Happy Harbor Lot 7 as his primary residence on December 18, 1971. There is some evidence that the Buettners intended to make this lot their principal residence even though they were temporarily absent from the cabin site on December 18, 1971. By that time they had constructed part of their cabin on the site. When they traveled south for the winter, they allegedly left almost all of their possessions at Happy Harbor. While they were gone they did not establish any other residence. They returned to Happy Harbor as soon as it was feasible for them to do so. When they did return, they finished their cabin and took up permanent residence. Whether these facts, together with such other facts as may be developed at trial, will be sufficient to satisfy the requirements of ANCSA § 1613(c)(1) is something the trial court will have to determine.

As to Hamar, it is clear that he did not occupy Lot 8 on December 18, 1971. But it appears that his predecessor, Porter, did. The trial court did not reach the question whether Hamar could take advantage of Porter’s December 18, 1971 occupancy, or whether apart from any “tacking” considerations this might involve, Porter would be entitled to a deed to Lot 8 in his own right based upon his claim of occupancy on December 18, 1971, and if so, whether Porter would be required to convey title to Hamar. These questions should be resolved by the district court as it considers Hamar’s claim. To do so it would appear that Porter is a necessary party and should be joined in the action. See Fed. R. Civ. P. 19(a)(1).

REVERSED AND REMANDED.

The Seldovia Native Association (SNA) filed this action for declaratory and injunctive relief on January 12, 1981. An amended complaint was filed on April 17, 1987. SNA sought a declaration that the construction of the Alaska Native Claims Settlement Act (ANCSA), 43 U.S.C. §§ 1601-1629e, adopted by the Secretary of the Interior (the Secretary) was invalid. The Secretary’s construction of ANCSA validated the State of Alaska’s grant of leases with purchase options on lands subsequently claimed by SNA pursuant to ANCSA.

SNA and the federal government filed cross-motions for summary judgment. The State filed a motion to dismiss the action. On February 13, 1989, the district court granted summary judgment in favor of the federal defendants and the individual defendants. The cause of action alleged against an individual defendant sued in his official capacity as a state officer was dismissed as barred by the eleventh amendment. Final judgment was entered on March 14, 1989. SNA filed a timely notice of appeal on April 6, 1989.

We must decide whether the purchase options granted by the State of Alaska are “valid existing rights” not subject to selection by Native Alaskans under ANCSA. SNA contends that purchase options are not included within the savings provisions of ANCSA. The State maintains that in enacting ANCSA Congress intended to preserve all prior property interests, and, therefore, purchase options granted by the State of Alaska under the Alaska Statehood Act are “valid existing rights.”

Pertinent Facts

In 1958, Congress enacted the Alaska Statehood Act, Pub. L. No. 85-508, 72 Stat. 339, 340 (1958) (codified at 48 U.S.C. note prec. § 21 (1982)). The Alaska Statehood Act authorized the State of Alaska to select acreage from public lands that were “vacant, unappropriated, and unreserved at the time of their selection.” Alaska Statehood Act § 6(b), 48 U.S.C. note prec. § 21. Section 6(g) of the Alaska Statehood Act provided:

Following the selection of lands by the State and the tentative approval of such selection by the Secretary of the Interior . . . but prior to the issuance of final patent, the State is hereby authorized to execute conditional leases and to make conditional sales of such selected lands.

Id. § 6(g). Pursuant to section 6(g), the State created the “open-to-entry” (OTE) program. Alaska Stat. § 38.05.077 (1968). Under the OTE program, individuals could lease up to five acres of state land classified as “open-to-entry.” Id. § 38.05.077(3), (7). The lessees were granted an option to purchase the land. The option could be exercised by satisfying two conditions: conduct of a survey and payment to the State of the fair market value of the land as of the date of entry. Id. § 38.05.077(4), (8). These options are referred to as “conditional purchase options” or “OTE purchase options.” Under the implementing regulations, the Department of the Interior issued “tentative approval” to the State only “after determining that there is no bar to passing legal title . . . other than the need for a survey of the lands or for the issuance of patent or both.” 43 C.F.R. § 2537.3(d).

In 1959, the State filed selections for land in Kachemak Bay, near the Village of Seldovia. The Bureau of Land Management (BLM) tentatively approved these selections in 1960, 1964, and 1966. The State classified the land as “open-to-entry” under Alaska Stat. § 38.05.077. Between 1968 and 1972, the State issued OTE leases with conditional purchase options to the individual defendants in this case.

Congress passed ANCSA on December 18, 1971, to settle Alaskan Natives’ aboriginal claims to the land and resources of Alaska. H.R.Rep. No. 523, 92d Cong., 1st Sess. 1-4, reprinted in 1971 U.S.Code Cong. & Admin.News 2192, 2192-96. Section 4 of ANCSA, 43 U.S.C. § 1603, provides that all prior conveyances of land under federal law or tentative approvals under section 6(g) of the Statehood Act operated to extinguish aboriginal title at the time the conveyance was made or approval was given, and all remaining claims by Native Alaskans based on aboriginal right, title, use, or occupancy of the land were extinguished as of December 18, 1971. United States v. Atlantic Richfield Co., 612 F.2d 1132, 1134 (9th Cir.), cert. denied, 449 U.S. 888, 101 S. Ct. 243, 66 L. Ed. 2d 113 (1980). In consideration for the relinquishment of claims based on aboriginal title, Congress granted to Native Alaskans $ 962,500,000 and 40 million acres of land. Id.; see also H.R.Rep. No. 523, 92d Cong., 1st Sess. 2, reprinted in 1971 U.S.Code Cong. & Admin.News at 2193. ANCSA established a process whereby land would be withdrawn from selection by the State, made available for selection by Native Alaskans to fulfill their allotment under ANCSA, and then conveyed to Native Alaskans. See 43 U.S.C. §§ 1610(a), 1611(a)(1), 1613(a).

The land granted to Native Alaskans was to come primarily from public lands, defined as “all Federal lands and interests therein located in Alaska,” with the exception of lands used for federal installations and tentatively approved land selections made by the state pursuant to section 6(g) of the Alaska Statehood Act. 43 U.S.C. § 1602(e) (1982). Section 11(a)(1) of ANCSA provides that certain public lands surrounding Native Alaskan Villages are withdrawn from all forms of appropriation under the public land laws and from selection under the Alaska Statehood Act:

The following public lands are withdrawn, subject to valid existing rights, from all forms of appropriation under the public land laws, including the mining and mineral leasing laws, and from selection under the Alaska Statehood Act, as amended:

(A) The lands in each township that encloses all or part of any Native village identified pursuant to subsection (b) of this section;

(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.

The following lands are excepted from such withdrawal: lands in the National Park System and lands withdrawn or reserved for national defense purposes other than Naval Petroleum Reserve Numbered 4.

Id. § 1610(a)(1). Some of the land available for conveyance to Native Alaskans was to come from tentatively approved land. 43 U.S.C. § 1610(a)(2). Section 11(a)(2) provides that tentatively approved land described in section 11(a)(1) was withdrawn from further appropriation and from the creation of new third-party interests by the State:

All lands located within the townships described in subsection (a)(1) hereof that have been selected by, or tentatively approved to, but not yet patented to, the State under the Alaska Statehood Act are withdrawn, subject to valid existing rights, from all forms of appropriation under the public land laws, including the mining and mineral leasing laws, and from the creation of third party interests by the State under the Alaska Statehood Act.

Id. § 1610(a)(2). (emphasis added). As a result, the State could not grant OTE leases under section 6(g) of the Statehood Act after the passage of ANCSA. Rights previously granted, however, were protected as “valid existing rights.” See Id. §§ 1610(a)(1)-(2).

ANCSA established Native Village corporations to hold, manage, and distribute lands granted pursuant to ANCSA on behalf of Native Alaskan Villages. Id. §§ 1602(j), 1607. Section 12(a)(1) allowed the Native Village corporations up to three years after December 18, 1971, to select land withdrawn under section 11(a). Id. § 1611(a)(1). Section 12(a)(1) provides, in pertinent part:

During a period of three years from December 18, 1971, the Village Corporation for each Native village identified pursuant to section 1610 of this title shall select, in accordance with rules established by the Secretary, all of the township or townships in which any part of the village is located, plus an area that will make the total selection equal to the acreage to which the village is entitled under section 1613 of this title. The selection shall be made from lands withdrawn by section 1610(a) of this title. . . .

43 U.S.C. § 1611(a)(1).

Section 14(a) provides that, upon proper selection of withdrawn lands, the Secretary must convey to the Native Village corporation a patent to the surface estate for that land. Id. § 1613(a). All such conveyances to Native Village corporations are subject to valid existing rights:

All conveyances made pursuant to this chapter shall be subject to valid existing rights. Where, prior to patent of any land or minerals under this chapter, a lease, contract, permit, right-of-way, or easement (including a lease issued under section 6(g) of the Alaska Statehood Act) has been issued for the surface or minerals covered under such patent, the patent shall contain provisions making it subject to the lease, contract, permit, right-of-way, or easement, and the right of the lessee, contractee, permittee, or grantee to the complete enjoyment of all rights, privileges, and benefits thereby granted to him. Upon issuance of the patent, the patentee shall succeed and become entitled to any and all interests of the State or the United States as lessor, contractor, permitter, or grantor, in any such leases, contracts, permits, rights-of-way, or easements covering the estate patented, and a lease issued under section 6(g) of the Alaska Statehood Act shall be treated for all purposes as though the patent had been issued to the State. The administration of such lease, contract, permit, right-of-way, or easement shall continue to be by the State or the United States, unless the agency responsible for administration waives administration. In the event that the patent does not cover all of the land embraced within any such leases, contract, permit, right-of-way, or easement, the patentee shall only be entitled to the proportionate amount of the revenues reserved under such lease, contract, permit, right-of-way, or easement by the State or the United States which results from multiplying the total of such revenues by a fraction in which the numerator is the acreage of such lease, contract, permit, right-of-way, or easement which is included in the patent and the denominator is the total acreage contained in such lease, contract, permit, right-of-way, or easement.

Id. § 1613(g). The Secretary is authorized to issue regulations necessary to carry out the purposes of ANCSA. Id. § 1624.

In May 1974, SNA submitted selections for lands surrounding the Village of Seldovia pursuant to 43 U.S.C. § 1611(a). These selections did not include the OTE lands. In September 1974, the BLM notified SNA that SNA was required to select the OTE lands to ensure the “compactness” of SNA’s selection.

In October 1975, the BLM vacated its tentative approval of the OTE lands and approved their conveyance to SNA, subject to valid existing rights. This decision was appealed by SNA, the State, and several individual lessees to the Alaska Native Claims Appeals Board (ANCAB). ANCAB ruled that, although the OTE leases were protected by section 14(g), 43 U.S.C. § 1613(g), the purchase options did not survive conveyance to Native Alaskans. Appeal of Alaska and Seldovia Native Ass’n, Inc., 84 Interior Dec. 349, 375-77 (1977), 2 ANCAB 1, VLS 75-14, 75.15.

ANCAB’s ruling conflicted with an earlier decision of the Interior Board of Land Appeals, State of Alaska, 19 I.B.L.A. 178 (1975). To resolve this conflict, the Secretary issued Secretarial Order No. 3016 (S.O. 3016), 85 Interior Dec. 1 (1977). The Secretary concluded that conditional purchase options are valid existing rights under section 14(g) of ANCSA, 43 U.S.C. § 1613(g). Id. at 18. As a result, a lessee’s right to exercise a purchase option is enforceable against a Native Village corporation. Id. The Secretary determined that S.O. 3016 was not intended to disturb any final administrative decision. Id. at 1.

In April 1978, BLM entered an order conveying the OTE land to SNA. BLM determined that S.O. 3016 did not apply to the controversy between SNA and the lessees because its prior administrative decision was final. The State of Alaska appealed this decision to ANCAB.

Several Native Village corporations became concerned that S.O. 3016 could lead to a divestment of lands they had selected that were subject to conditional purchase options. Pursuant to their request, the Secretary reconsidered S.O. 3016. On November 20, 1978, the Secretary issued Secretarial Order No. 3029 (S.O. 3029), 43 Fed.Reg. 55287 (1978). The Secretary concluded that purchase options are valid existing rights under section 11(a)(2), 43 U.S.C. § 1610(a)(2). Accordingly, the Secretary determined that OTE lands were not available for Native Alaskan selection. 43 Fed.Reg. at 55288-89, 55291. The Secretary left open the possibility of the retroactive application of S.O. 3029. Id. at 55287. In response, ANCAB suspended proceedings in the State of Alaska’s appeal. Order of Suspension, ANCAB VLS 78-41 (January 31, 1979).

On March 27, 1980, the Secretary decided that S.O. 3029 applied retroactively to the OTE lands involved in Appeals of Alaska and Seldovia Native Association, Inc., 84 Interior Dec. 349 (1977). Valid Existing Rights Under the Alaska Native Claims Settlement Act: Departmental Manual Release No. 2246, 601 DM 2 (March 27, 1980). Pursuant to this decision, ANCAB ordered BLM to “reinstate tentative approval of the State’s selection of such land so that the State of Alaska is able to grant title to [OTE leaseholders holding purchase options] as contemplated by Order No. 3029.” Appeal of Alaska, 87 Interior Dec. 366, 367 (1980), 5 ANCAB 4, VLS 78-41.

In this action for injunctive and declaratory relief, SNA challenges the Secretary’s interpretation of section 11(a)(2). Relying on this interpretation, the district court entered an order granting summary judgment to the federal defendants and the individual defendants. The district court dismissed the claims against the individual state officer as barred by eleventh amendment.

Standard of Review

An order entering summary judgment is reviewed de novo. Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir. 1989). This court must determine, viewing the evidence in the light most favorable to SNA, whether there are any genuine issues of material fact and whether the district court correctly applied the substantive law. Tzung v. State Farm Fire & Cas. Co., 873 F.2d 1338, 1339-40 (9th Cir. 1989). Whether the eleventh amendment immunizes a state from suit is a question of law that we also review de novo. BV Engineering v. University of Cal., Los Angeles, 858 F.2d 1394, 1395 (9th Cir. 1988), cert. denied, 489 U.S. 1090, 109 S. Ct. 1557, 103 L. Ed. 2d 859 (1989).

Discussion

The district court accepted the Secretary’s interpretation of “valid existing rights” under ANCSA as including open-to-entry leases with conditional purchase options. Accordingly, the district court concluded that land subject to the OTE leases was not available for selection by SNA under section 11(a)(2) of ANCSA, 43 U.S.C. § 1610(a)(2). In this appeal, SNA argues that OTE purchase options do not survive selection by Native Village corporations because they are not “valid existing rights under ANCSA.”

In considering the administrative construction of statutes that an agency administers, the court must first determine whether “‘Congress has directly spoken to the precise question at issue.'” Tyonek Native Corp. v. Secretary of Interior, 836 F.2d 1237, 1239 (9th Cir. 1988) (quoting Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 842, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984)). “‘If the intent of Congress is clear,'” the court must give effect to that intent. Id. (quoting Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. at 842). “‘If the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.'” Id. (quoting Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. at 843). The court’s starting period thus “‘must be the language employed by Congress.'” Buettner v. Kavilco, Inc., 860 F.2d 341, 343 (9th Cir. 1988) (quoting Reiter v. Sonotone Corp., 442 U.S. 330, 337, 60 L. Ed. 2d 931, 99 S. Ct. 2326 (1979)).

A. The Plain Language of ANCSA

When construing statutory language, “we assume ‘that the legislative purpose is expressed by the ordinary meaning of the words used.'” Id. (quoting Richards v. United States, 369 U.S. 1, 9, 7 L. Ed. 2d 492, 82 S. Ct. 585 (1962)). We determine the plain meaning of a statute by looking “to the particular statutory language at issue, as well as the language and design of the statute as a whole.” K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291, 100 L. Ed. 2d 313, 108 S. Ct. 1811 (1988). “Absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive.” Consumer Product Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 64 L. Ed. 2d 766, 100 S. Ct. 2051 (1980).

Congress did not define the meaning of “valid existing rights” in the text of ANCSA. To clarify Congress’ intent in using this term, we turn to an examination of the legislative history. Blum v. Stenson, 465 U.S. 886, 896, 79 L. Ed. 2d 891, 104 S. Ct. 1541 (1984).

B. The Legislative History of ANCSA

ANCSA’s legislative history does not demonstrate that Congress intended that land subject to conditional purchase options granted under the Alaska Statehood Act was available for selection by a Native Village corporation. To the contrary, the legislative history of ANCSA supports the conclusion that conditional purchase options are “valid existing rights.” The Conference Report of the House and Senate Committees on Interior and Insular Affairs states that “all valid existing rights, including inchoate rights of entrymen and mineral locators, are protected.” Conf. Rep. No. 746, 92d Cong., 1st Sess. 4, reprinted in 1971 U.S.Code Cong. & Admin.News 2192, 2250. A conditional purchase option would appear to be such an inchoate right. Because conditional purchase options are not expressly referred to in either the statute or its legislative history, however, we turn to an examination of the Secretary’s construction of “valid existing rights.”

C. Administrative Construction of “Valid Existing Rights”

The district court accepted as reasonable the Secretary of the Interior’s construction of “valid existing rights” under ANCSA. The appellees assert that this deference to the Secretary’s interpretation of ANSCA was error, relying on the canon of statutory construction that “statutes benefiting Native Americans should be construed liberally in their favor.” Tyonek Native Corp. v. Secretary of the Interior, 836 F.2d at 1239 (citing Three Affiliated Tribes of the Fort Berthold Reservation v. Wold Eng’g, 467 U.S. 138, 149, 81 L. Ed. 2d 113, 104 S. Ct. 2267 (1984)). We recently rejected the application of this canon to ANCSA. We stated in Haynes v. United States, 891 F.2d 235 (9th Cir. 1989) that “while this court has recognized this canon of construction, . . . it has also declined to apply it in light of competing deference given to an agency charged with the statute’s administration.” Id. at 239.

“To the extent necessary for decision and when presented, the reviewing court shall decide all relevant questions of law [and] interpret constitutional and statutory provisions. . . .” 5 U.S.C. § 706 (1988). Although the judiciary is the final arbiter of issues of statutory construction, an administrative agency’s interpretation of a statute it is charged with administering is accorded substantial deference. Haynes v. United States, 891 F.2d at 238-39. We have previously stated that “the principal responsibility for administering the [ANCSA] lies with the Secretary and his interpretations of the statutes are entitled to ‘great weight’ upon judicial review.” Doyon, Ltd. v. Bristol Bay Native Corp., 569 F.2d 491, 496 (9th Cir.), cert. denied, 439 U.S. 954, 58 L. Ed. 2d 345, 99 S. Ct. 352 (1978); see also City of Angoon v. Hodel, 803 F.2d 1016, 1026 (9th Cir. 1986) (deference is given to Secretary’s interpretation of ANCSA), cert. denied, 484 U.S. 870, 98 L. Ed. 2d 148, 108 S. Ct. 197 (1987). “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,” but only that the agency’s interpretation is reasonable and is not contrary to congressional intent. Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. at 843 n.11 (citations omitted).

1. Reasonableness of the Secretary’s Construction

The Secretary decided in S.O. 3029 that, if lands tentatively approved for state selection had been leased with an option to buy by the State of Alaska under the state’s open-to-entry program prior to the enactment of ANCSA, those lands were withdrawn from Native Alaskan selection as valid existing rights under section 11(a)(2). Secretarial Order No. 3029, 43 Fed.Reg. 55287, 55287-88 (1978). Because the open-to-entry leases are rights leading to the acquisition of title, the Secretary determined that these lands should be excluded from Native Alaskan selection, consistent with 43 C.F.R. 2650.3-1(a). Id. at 55291.

A. OTE Purchase Options are “Valid Existing Rights” Under ANCSA

The Secretary’s construction of “valid existing rights” is consistent with judicial interpretation of section 11(a)(1), 43 U.S.C. § 1610(a)(1). In Aleknagik Natives Ltd. v. United States, 806 F.2d 924 (9th Cir. 1986), we reviewed the Secretary’s construction of “valid existing rights” under section 11(a)(1). The Secretary had determined that townsite land in Alaska that had been segregated, but not yet subdivided and distributed, was not available for Native Alaskan selection under section 11(a)(1). We held that a municipality’s right to the land did not vest at the time of segregation, because it was contingent upon other occupants not taking up those lands under the townsite laws and on the completion and approval of a subdivisional survey.

Aleknagik Natives, Ltd. v. United States, 635 F. Supp. 1477 at 1489 (D. Alaska 1985). The Secretary concluded that the municipalities had an entitlement to the lands under the townsite laws from the time the lands were segregated from the public domain, thus creating “valid existing rights” under section 11(a)(1). Id. In accepting the Secretary’s construction, we stated:

The term “valid existing rights” does not necessarily mean present possessory rights, or even a future interest in the property law sense of existing ownership that become possessory upon the expiration of earlier estates. Legitimate expectations may be recognized as valid existing rights, especially where the expectancy is created by the government in the first instance.

Aleknagik Natives Ltd. v. United States, 806 F.2d at 926-27. Similarly, the holders of conditional purchase options granted under the Alaska Statehood Act have legitimate expectations in obtaining title to land that should be protected as “valid existing rights.”

The Secretary’s construction is based upon 43 C.F.R. § 2650.3-1(a), which draws a fundamental distinction between temporary rights, such as leases, and rights leading to the acquisition of title, such as purchase options. This construction is consistent with the Supreme Court’s interpretation of the phrase in the context of the federal homestead laws. In Stockley v. United States, 260 U.S. 532, 67 L. Ed. 390, 43 S. Ct. 186 (1923), a Presidential Order withdrew from appropriation under the Homestead laws certain lands, “subject to existing valid claims.” Id. at 536. The Supreme Court found that a homesteader’s lawful entry upon land subject to homesteading was excepted from this withdrawal order. Id. at 544. The Supreme Court explained:

Obviously this means something less than a vested right, such as would follow from a completed final entry, since such a right would require no exception to insure its preservation. The purpose of the exception evidently was to save from the operation of the order claims which had been lawfully initiated and which, upon full compliance with the land laws, would ripen into a title.

Id. Because the preliminary entry gave the entryman an exclusive right to possession, his inchoate right to proceed to patent was protected. Id. Just like a homesteader’s preliminary entry, the grant of a conditional purchase option ripens into title upon compliance with the State of Alaska’s land laws. See Alaska Stat. § 38.05.077 (option to purchase tentatively approved land may be exercised by causing survey to be made of entry and paying negotiated price). The Supreme Court’s analysis in Stockley supports the conclusion that a grant of a conditional purchase option is a “valid existing right.”

OTE conditional purchase options thus satisfy the requirements of a valid existing right. Because they are granted by the State of Alaska pursuant to an Act of Congress, they create legitimate expectations of property interests. In addition, they are rights leading to the acquisition of title. We conclude, therefore, that the Secretary’s construction of “valid existing rights” under ANCSA to include OTE conditional purchase options is reasonable.

b. Land Subject to OTE Purchase Options is Excluded from Native Selection

The Secretary determined that land subject to OTE purchase options is excluded from Native Alaskan selection under section 11(a)(2), 43 U.S.C. § 1610(a)(2). Secretarial Order No. 3029, 43 Fed.Reg. at 55291. This interpretation is based on the language of 43 C.F.R. § 2650.3-1(a), which excludes from any conveyance of land selected by Native Alaskans any “lawful entries or entries which have been perfected under, or are being maintained in compliance with, laws leading to the acquisition of title.” The Secretary’s interpretation is reasonable. It avoids the necessity of reconveying land selected by Native Alaskans under ANCSA to an option holder because he has a valid existing right. It also protects the Native Alaskans’ rights to their full allotment of land under section 1613 of ANCSA.

In Lee v. United States, 629 F. Supp. 721 (D.Alaska 1985), aff’d on other grounds, 809 F.2d 1406 (9th Cir. 1987), cert. denied, 484 U.S. 1041, 98 L. Ed. 2d 859, 108 S. Ct. 772 (1988), the district court reviewed the Secretary’s construction of section 22(b). Section 22(b) protects claims made under the federal homestead laws. 43 U.S.C. § 1621(b). As a result, there was no dispute that these claims were “valid existing rights” under ANCSA. The plaintiffs, however, contended that lands subject to homestead claims were not excluded from Native Alaskan selection under section 11(a)(1), but were conveyed as “subject to” lands under section 14(g). The Secretary construed section 11(a)(1) to require the exclusion of these lands from Native Alaskan selection, even if the claimant had not yet fulfilled all the requirements of federal law to receive a patent. See 43 U.S.C. § 1621(b). The district court found that this construction was reasonable because “‘all conveyances issued under the act shall exclude any lawful entries or entries which have been perfected under, or are being maintained in compliance with, laws leading to the acquisition of title.'” Lee v. United States, 629 F. Supp. at 731 (quoting 43 C.F.R. § 2650.3-1(a)). Because the Secretary determined the validity of all homestead claims, and because valid homestead claims would defeat Native Alaskans’ ownership rights, land subject to homestead claims was excluded from selection by and conveyance to Native Alaskans. Id. at 731-32; see also Aleknagik Natives, Ltd. v. United States, 635 F. Supp. at 1488-90 (employing similar reasoning to exclude federal townsite lands from selection under section 11(a)(1), 43 U.S.C. § 1610(a)(1)).

Like land subject to homestead claims in Lee v. United States, land subject to OTE purchase options is excluded from Native Alaskan selection by the Secretary’s application of 43 C.F.R. § 2650.3-1(a). Under ANCSA, the Secretary is directed to issue a patent to federal lands “immediately after selection by a Village corporation . . . which the Secretary finds is qualified for land benefits under this chapter.” 43 U.S.C. § 1613(a). Native Village corporations have rights to receive patents to a limited amount of land based on their census population in 1970. See id. § 1613(a). Their rights to obtain title to land withdrawn from State selection by section 11(a)(2), id. § 1610(a)(2), are even more limited. See id. § 1611(a)(1). Because OTE purchase options are valid state-created rights under section 11(a)(2), land subject to OTE purchase options would count against the Native Village corporations’ conveyance limit if available for selection by Native Alaskans. See id. § 1613(a). If the options are exercised, Native Alaskans would be divested of their fee interest in the OTE land and their allotment under ANCSA would be reduced commensurately. This result does not effect “maximum participation by Natives in decisions affecting their rights and property.” Id. § 1601(b); see also Lee v. United States, 629 F. Supp. at 731-32 (discussing the effect of including section 22(b) lands in conveyances under section 14(a)). In contrast, the exclusion of land subject to OTE purchase options, pursuant to section 11(a)(2), 43 U.S.C. § 1610(a)(2), gives Native Alaskans complete fee ownership of all land selected under ANCSA. While still subject to valid state and federal rights pursuant to section 14(g), id. § 1613(g), title to land selected by Native Alaskans will remain intact. Thus, the Secretary’s application of 43 C.F.R. § 2650.3-1(a) to exclude land subject to purchase options from Native Alaskan selection is reasonable.

c. Consistency of the Construction

SNA asserts that the Department of the Interior’s construction of “valid existing rights” with regard to OTE lands has been inconsistent. It notes that two ANCAB opinions held that purchase options are not valid existing rights under ANCSA. See Appeal of Eklutna, ANCAB VLS 75-10 (Dec. 10, 1976); Appeal of Seldovia, ANCAB VLS 75-14, 75-15 (June 9, 1977).

The Secretary’s construction of “valid existing rights,” promulgated in S.O. 3016 and re-adopted in S.O. 3019, was intended to resolve the uncertainty caused by the two ANCAB decisions cited by SNA. See Secretarial Order No. 3016, 85 Interior Dec. 1 (1977); Secretarial Order No. 3029, 43 Fed.Reg. 55287 (1978). In promulgating S.O. 3016 and S.O. 3029, the Secretary was acting within his paramount power; he was not bound by the construction formulated by a subordinate body such as ANCAB. See Ideal Basic Indus. v. Morton, 542 F.2d 1364, 1367-68 (9th Cir. 1976) (“[The Secretary] has a continuing jurisdiction with respect to these lands until a patent issues, and he is not estopped by the principles of res judicata or finality of administrative action from correcting or reversing an erroneous decision by his subordinates or predecessors in interest.”). Moreover, the Secretary’s construction of “valid existing rights” in S.O. 3016 and S.O. 3029 conformed to a long line of Interior Department decisions construing that phrase. See, e.g., Solicitor’s Opinion M-36910 (Supp.), 88 Interior Dec. 909, 912 (1981) (under Federal Land Policy and Management Act, 43 U.S.C. §§ 1701-1784, valid existing rights are “those rights short of vested rights that are immune from denial or extinguishment by the exercise of secretarial discretion”); Authority to Extend Coal Prospecting Permits: Effect of Sec. 4 of the Federal Coal Leasing Amendments Act of 1975, Solicitor’s Opinion No. M 36894, 84 Interior Dec. 415, 416-17 (1977) (“Both Congress and the Executive Branch have used the phrase ‘valid existing right’ . . . when they intended to terminate the opportunity for a person to acquire new rights, but intended to allow those who had initiated but had not fully earned a claim to continue to pursue those rights.”); Executive Withdrawal Order of November 26, 1934, as Affecting Taylor Grazing Act and Other Prior Legislation, 55 Interior Dec. 205, 210 (1935) (“All prior valid applications for entry, selection, or withdrawal should be considered as constituting valid existing rights. . . .”); Williams v. Brening, 51 Interior Dec. 225, 226 (1925) (“The withdrawal here in question saved ‘any valid existing rights in and to’ the lands so withdrawn, and a preferred right which had been earned, although not actually awarded, prior to the withdrawal is entitled to protection.”).

Even if the Secretary’s construction of “valid existing rights” is consistent with prior interpretations, SNA contends that the Secretary’s decision to exclude OTE lands from Native Alaskan selection under section 11(a)(2) is a product of this litigation. The Secretary’s exclusion of OTE lands from Native Alaskan selection, however, pre-dated this litigation. The exclusion of OTE lands from Native Alaskan selection originated in S.O. 3029, issued in 1978. See Secretarial Order No. 3029, 43 Fed.Reg. at 55291 (Secretary concludes “that lands subject to open-to-entry leases which were issued prior to December 18, 1971, and which are within a Native selection should not be included in or counted against lands conveyed to Native corporations.”).

S.O. 3029 did, however, reverse the Secretary’s conclusion in S.O. 3016 that OTE lands would be conveyed as “subject to” lands under § 14(g), 43 U.S.C. § 1613(g). See Secretarial Order No. 3016, 85 Interior Dec. 1, 8 (1977). We must examine the reversal of this interpretive rule.

When an agency reverses a prior policy or statutory interpretation, its most recent expression is accorded less deference than is ordinarily extended to agency determinations. INS v. Cardoza-Fonseca, 480 U.S. 421, 446 n.30, 94 L. Ed. 2d 434, 107 S. Ct. 1207 (1987); Watt v. Alaska, 451 U.S. 259, 273, 68 L. Ed. 2d 80, 101 S. Ct. 1673 (1981). The agency will be required to show not only that its new policy is reasonable, but also to provide a reasonable rationale supporting its departure from prior practice. See Motor Vehicle Mfrs. Ass’n of the United States v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 42, 77 L. Ed. 2d 443, 103 S. Ct. 2856 (1983) (overturning an agency reversal because the agency had provided no explanation for its change in policy); Mesa Verde Constr. Co. v. Northern Cal. Dist. Council of Laborers, 861 F.2d 1124, 1130-34 (9th Cir. 1988) (en banc) (upholding an agency reversal after finding that the previous policy had been unworkable in practice.). However, a reversal of prior policy or statutory interpretation does not wholly vitiate deference to agency determinations. NLRB v. International Ass’n of Bridge Structural and Ornamental Ironworkers, 434 U.S. 335, 351, 54 L. Ed. 2d 586, 98 S. Ct. 651 (1978). “Although the consistency of an agency’s interpretation is one relevant factor in judging its reasonableness, an agency’s interpretation . . . is nevertheless entitled to deference, so long as the agency acknowledges and explains the departure from its prior views.” Mobil Oil Co. v. EPA, 276 U.S. App. D.C. 352, 871 F.2d 149, 152 (D.C.Cir. 1989) (emphasis in original). 

The Secretary recognized that exclusion of OTE lands from Native Alaskan selection would reverse S.O. 3016. Secretarial Order No. 3029, 43 Fed.Reg. at 55291. The Secretary noted that exclusion would be consistent with 43 C.F.R. § 2650.3-1(a). Id. In addition, exclusion allows the State of Alaska to determine whether entrymen have satisfied the state law conditions for the exercise of their options. Id. “If the lessee fails to exercise the option to purchase, the affected Native corporation can either have the land conveyed as part of its original entitlement or, if the entitlement is otherwise satisfied, then by exchange.” Id. Furthermore, exclusion is consistent with the treatment of federal homestead claims under section 11(a)(1), which are essentially options to buy that can be exercised against the United States by meeting the statutory criteria. Id. Because the Secretary acknowledged and explained the modification of S.O. 3016, his construction can be accorded the same deference ordinarily given to an administrative interpretation of statutory language.

2. Retroactive Application of the Secretary’s Construction

S.O. 3029 was applied to all non-final proceedings at the date of its promulgation. Valid Existing Rights Under the Alaska Native Claims Settlement Act: Departmental Manual Release No. 2246, 601 DM 2 (March 27, 1980). SNA contends that the retroactive application of S.O. 3029 is impermissible.

SNA’s first argument is that retroactive application of S.O. 3029 is a taking without due process of law in violation of the fifth amendment. SNA asserts that its property interest in the lands at issue vested when the entrymen failed to appeal the ANCAB decision. See 43 C.F.R. § 4.5(a)(2) (giving Secretary authority to review ANCAB decision). As a result, this interest could not be taken away without payment of just compensation. See U.S. Const. amend. V.

This argument fails because SNA has no vested property right in the finality of an ANCAB decision. See Reed v. Morton, 480 F.2d 634, 642-43 (9th Cir.) (Secretary may reopen administrative decision if legal title remains in United States), cert. denied, 414 U.S. 1064, 38 L. Ed. 2d 469, 94 S. Ct. 571 (1973). As long as legal title to land remains in the United States, “there is continuing jurisdiction in the Department [of the Interior] to consider all issues in land claims.” Schade v. Andrus, 638 F.2d 122, 124-25 (9th Cir. 1981); see also Ideal Basic Indus. v. Morton, 542 F.2d at 1368 (“So long as the legal title remains in the Government, the Secretary has the power and duty upon proper notice and hearing to determine whether the claim is valid.”); cf. Best v. Humboldt Placer Mining Co., 371 U.S. 334, 337-38, 9 L. Ed. 2d 350, 83 S. Ct. 379 (1963) (discussing mining claims). Because patents to the OTE lands had not issued as of the date of S.O. 3029’s retroactive application, legal title remained in the United States despite selection by the Native Alaskans. See 43 U.S.C. § 1613(a) (1982); Reed v. Morton, 480 F.2d at 642 (“Prior to patent the Secretary retains jurisdiction over public lands.”).

SNA’s second argument is that S.O. 3029 may not be applied retroactively because it constitutes administrative rulemaking that is subject to the notice and comment provisions of the Administrative Procedure Act (APA). 5 U.S.C. § 553 (1988). Interpretive rules, however, are excepted from the procedural requirements of section 553. See 5 U.S.C. § 553(b)(A), (d)(2). Interpretive rules are rules that “‘merely clarify or explain existing law or regulations.'” Alcaraz v. Block, 746 F.2d 593, 613 (9th Cir. 1984) (quoting Powderly v. Schweiker, 704 F.2d 1092, 1098 (9th Cir. 1983)). These rules “are essentially hortatory and instructional in that they go more ‘to what the administrative officer thinks the statute or regulation means, when applied in particular, narrowly defined, situations.” Id. (quoting Gibson Wine Co. v. Snyder, 90 U.S. App. D.C. 135, 194 F.2d 329, 331 (D.C.Cir. 1952)). Substantive rules, on the other hand, “‘are those which effect a change in existing law or policy.'” Id. (quoting Powderly v. Schweiker, 704 F.2d at 1098)).

The Secretary’s decision that OTE conditional purchase options are “valid existing rights” under ANCSA did not effect a change in existing law or policy. Instead, S.O. 3029 interpreted an existing statute and “clarified the law’s terms as applied situationally.” Id. Because S.O. 3029 was an exercise of the Secretary’s interpretive authority, it was not subject to the notice and comment provisions of the APA.

SNA’s third argument is that the Secretary is equitably estopped from retroactively applying S.O. 3029. When S.O. 3016, which defined OTE purchase options as “valid existing rights” under section 14(g), was issued, representatives of SNA became concerned that it would be applied to reverse the two favorable ANCAB decisions. SNA received two responses from the Department of the Interior in response to its inquiries. The first, dated December 28, 1977, was signed by James Joseph, an Undersecretary of the Department of the Interior. It stated that the ANCAB decisions would “be implemented as originally decided,” so SNA would not be deprived of its benefits. Plaintiff’s Brief in Support of Motion for Summary Judgment, Affidavit of Fred Elvsaas, Ex. C. The second, dated March 3, 1978, was signed by Leo Krulitz, the Solicitor of the Department of the Interior. It stated that “all final prior cases were left unaffected” by S.O. 3016. Id., Ex. D. SNA contends that these communications estop the Department from applying S.O. 3029 retroactively.

This court has held that “‘”where justice and fair play require it,” estoppel will be applied against the government. . . .'” Watkins v. United States Army, 875 F.2d 699, 706 (9th Cir. 1989) (en banc) (quoting Johnson v. Williford, 682 F.2d 868, 871 (9th Cir. 1982) (quoting United States v. Lazy FC Ranch, 481 F.2d 985, 988-89 (9th Cir. 1973))). A party seeking to assert equitable estoppel against the government must establish two additional elements beyond those required for traditional estoppel: first, “‘”affirmative misconduct going beyond mere negligence”‘”; and second, a “‘”serious injustice,”‘” the imposition of liability for which will not unduly damage the public’s interest. Id. at 707 (quoting Wagner v. Director, Fed. Emergency Management Agency, 847 F.2d 515, 519 (9th Cir. 1988) (quoting Morgan v. Heckler, 779 F.2d 544, 545 (9th Cir. 1985))). Affirmative misconduct requires “an affirmative misrepresentation or affirmative concealment of a material fact by the government.” Id.

In this case, SNA cannot prove affirmative misconduct by the Department of the Interior. S.O. 3029 states:

This Order is not intended to disturb any administrative determination contained in a final decision by any duly authorized departmental official. The question of retroactive application of this Order shall be addressed by the solicitor under proceedings which shall be announced by him within 30 days of this Order’s effective date.

Secretarial Order No. 3029, 43 Fed. Reg. at 55287. By its express terms, S.O. 3029 left open the question of retroactive application. An ANCAB order suspending the proceedings in SNA’s administrative appeal informed SNA of the potential retroactive application of the S.O. 3029. See Appellant’s Opening Brief, at 47. Thus, the events reflect a change in an interpretive ruling that was ignored by SNA, rather than an affirmative misrepresentation upon which it relied.

SNA’s fourth argument is that the Secretary incorrectly applied the law of retroactivity. This court has developed a five-part analysis to balance the interests in considering the retroactive application of an administrative construction. Oil Workers Int’l Union, Local 1-547 v. NLRB, 842 F.2d 1141, 1145 (9th Cir. 1988). These factors are:

(1) whether the particular case is one of first impression, (2) whether the new rule represents an abrupt departure from well established practice or merely attempts to fill a void in an unsettled area of law, (3) the extent to which the party against whom the new rule is applied relied on the former rule, (4) the degree of the burden which a retroactive order imposes on a party, and (5) the statutory interest in applying a new rule despite the reliance of a party on the old standard.

Id.

As the district court noted, S.O. 3029 clarifies a previously unsettled area of the law, rather than representing “an abrupt departure from well-established administrative practice.” Although SNA relied on the ANCAB decisions in negotiating a land trade that included the OTE land with the State of Alaska, this agreement was not signed until May 1979 – after the publication of S.O. 3029 notified SNA that retroactive application was possible. See Plaintiff’s Brief in Support of Motion for Summary Judgment, Affidavit of Fred Elvsaas, at 7. Furthermore, this case involves a contest between two private parties. As the district court noted, “only one of these groups can succeed to title; in simple terms, one group will win and the other must lose.” As a result, the burden factor is not helpful. Finally, retroactive application is necessary to preserve the entrymen’s rights under ANCSA. Retroactive application thus effects congressional intent by preserving valid existing rights. See 43 U.S.C. §§ 1610(a), 1613(g). For these reasons, the Secretary’s retroactive application of S.O. 3029 is consistent with the legal principles set forth in Oil Workers Int’l Union, Local 1-547 v. NLRB.

In its final argument on this issue, SNA asserts that the Secretary erred in applying S.O. 3029 to the ANCAB decision involving its lands, see Appeal of Seldovia, 84 Interior Dec. 349 (1977), 2 ANCAB 1, VLS 75-14, 75-15, and not applying it to the ANCAB decision involving Eklutna Native Village Corporation’s lands. See Appeal of Eklutna, ANCAB VLS 75-10. The lands in dispute in Eklutna, however, unlike the lands in dispute in Seldovia, had already been conveyed. See Solicitor’s Opinion No. 2246, 45 Fed.Reg. 1692. As a result, the Department no longer had jurisdiction over those lands. See Schade v. Andrus, 638 F.2d at 124-25. We conclude that the Secretary did not err in applying S.O. 3029 retroactively.

II. State Selection of OTE Land

SNA contends that the selection and tentative approval of the OTE land violated the Alaska Statehood Act. SNA notes that only “vacant, unappropriated and unreserved” lands could be selected by the State of Alaska pursuant to section 6(b) of the Alaska Statehood Act, 72 Stat. 339 (1958), 48 U.S.C. note prec. § 21 (1982). SNA asserts that pursuant to section 6(b), a factual finding that lands are vacant, unappropriated and unreserved must be made before the Secretary can give tentative approval to the State of Alaska’s selection. Because such a factual finding was not made with regard to the OTE lands, SNA argues that the Secretary’s tentative approval of the State’s selection is void. SNA relies on State of Alaska v. Udall, 420 F.2d 938 (9th Cir. 1969), cert. denied, 397 U.S. 1076, 90 S. Ct. 1522, 25 L. Ed. 2d 811 (1970), and Edwardsen v. Morton, 369 F. Supp. 1359 (D.D.C. 1973), for this proposition.

SNA’s argument is unpersuasive. Alaska v. Udall involved a challenge to a selection made by the State of Alaska by a Native Village on a claim of aboriginal title. We commented in Alaska v. Udall that the enactment of ANCSA “would probably resolve all or most of the issues involved” in that litigation. 420 F.2d at 940. As the district court recognized in Edwardsen v. Morton, 369 F. Supp. at 1377-78, ANCSA extinguished all claims of “aboriginal right, title, use, or occupancy of land or water areas in Alaska.” 43 U.S.C. § 1603(c). In addition, ANCSA validated all tentative approvals of State selections made pursuant to section 6(g) of the Alaska Statehood Act. 43 U.S.C. § 1603(a). In consideration for the extinguishment of aboriginal title, Native Alaskans were granted $ 962,500,000 and approximately 40,000,000 acres of land. H.R.Rep. No. 523, 92d Cong., 1st Sess. 4, reprinted in 1971 U.S.Code Cong. & Admin.News 2192, 2195. Thus, SNA cannot assert its right to the OTE lands based on its prior use and occupancy. United States v. Atlantic Richfield Co., 612 F.2d at 1134.

III. Publication of Notice of Selection

43 C.F.R. § 2627.4(c) requires the publication of a notice of State selection of federal land. This notice must be published “in the vicinity of the land affected thereby.” 43 C.F.R. § 1824.1- (a). SNA charges that the State failed to publish a notice of the Kachemak Bay selections in the vicinity of Kachemak Bay.

Under 43 C.F.R. § 1824.1-1(a), the notice must be published in “a newspaper of established character and of general circulation.” The Bureau of Land Management has discretionary authority to determine which newspapers satisfy the publication requirement. 43 C.F.R. § 1824.1-2(a). In the instant matter, the BLM published the notice in the Anchorage Daily News and the Anchorage Times. SNA does not contend that these newspapers lack established character and of general circulation. As a result, this challenge must fail.

IV. Eleventh Amendment Bar

The allegations in SNA’s sixth cause of action described conduct by the State of Alaska contrary to state law. The complaint provides as follows:

47. The State of Alaska issued patents to the individual defendants for the “open to entry” tracts described hereinabove without receiving payment therefor of the fair market value of said tracts as required by state law.

48. The State of Alaska did not hold public hearings in the area of the “open to entry” lands in question in this case before declaring said lands as “open to entry” lands. Failure to hold such hearings was a violation of state law.

49. The procedures by which state open to entry leases and patents were issued to the individual defendants herein were so flawed that any rights held by the individual defendants are not valid existing rights within the meaning of §§ 11 and 14 of A.N.C.S.A. (43 U.S.C. §§ 1610 and 1613).

The district court dismissed this cause of action as barred by the eleventh amendment. SNA argues that this dismissal was in error because the relief requested is against the federal government: an order from the court directing “the federal government to convey the lands in question to it.” Appellant’s Opening Brief, at 43.

The eleventh amendment provides:

The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state.

U.S. Const. amend. XI. Although the eleventh amendment expressly refers to suits brought against a state by citizens of another state, the Supreme Court has interpreted its language as applying to actions brought against a state by citizens of the same state. Papasan v. Allain, 478 U.S. 265, 276, 92 L. Ed. 2d 209, 106 S. Ct. 2932 (1986); Hans v. Louisiana, 134 U.S. 1, 33 L. Ed. 842, 10 S. Ct. 504 (1890). Furthermore, a corporation chartered by Congress may not sue a state. Smith v. Reeves, 178 U.S. 436, 44 L. Ed. 1140, 20 S. Ct. 919 (1900). This bar exists whether the relief sought is legal or equitable. Papasan v. Allain, 478 U.S. at 276 (citing Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 100, 79 L. Ed. 2d 67, 104 S. Ct. 900 (1984)).

Because SNA has named the Director of Forest Land and Water Management for the State of Alaska as a defendant, rather than the State of Alaska itself or one of its agencies, the court must determine whether the limited exception to the eleventh amendment recognized in Ex Parte Young, 209 U.S. 123, 52 L. Ed. 714, 28 S. Ct. 441 (1908), applies. In Ex Parte Young, the Supreme Court concluded that the eleventh amendment did not bar a suit for equitable relief against a state official whose actions were taken under the authority of an unconstitutional state enactment. Id. at 159-60. Ex Parte Young, however, “does not foreclose an Eleventh Amendment challenge where the official action is asserted to be illegal as a matter of state law alone.” Papasan v. Allain, 478 U.S. at 277. The bar operates because a federal court’s grant of relief against state officials on the basis of state law “does not vindicate the supreme authority of federal law.” Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 106, 79 L. Ed. 2d 67, 104 S. Ct. 900 (1984). “It is difficult to think of a greater intrusion on state sovereignty than when a federal court instructs state officials on how to conform their conduct to state law.” Id.

SNA alleged a violation of state and not federal law in its sixth cause of action. As a result, the eleventh amendment bars this action.

This court recently confronted the scope of eleventh amendment immunity to suits brought by Native Alaskans based on state-created rights against the State of Alaska. In Native Village of Noatak v. Hoffman, 896 F.2d 1157 (9th Cir. 1990), the plaintiffs, three Native Alaskan Villages, brought an action against the Commissioner of the Department of Community and Regional Affairs of the State of Alaska (the Commissioner). The plaintiffs based their action on an Alaska law that provided that “the state shall pay $ 25,000 to a Native Village government for a village which is not incorporated as a city under this title.” Id. at 1159 (citing Alaska Stat. § 29.89.050 (1980)). In their first cause of action, the plaintiffs alleged that the Commissioner was guilty of invidious racial discrimination against the individual members of the Native Alaskan Villages in violation of the federal constitution and 42 U.S.C. § 1983. Id. The plaintiffs asserted as a second cause of action that the dilution of funds available violated federal laws and policy intended to further tribal self-government. Id. The plaintiffs alleged in count three of their complaint that the Commissioner’s conduct violated 25 U.S.C. § 476. Id. The plaintiffs alleged in their fourth cause of action that their freedom of religion and association under the first amendment was violated by the Commissioner’s action. Id. slip op. at 1492. The plaintiffs also alleged several pendent state claims. The district court dismissed the action as barred by the eleventh amendment.

We reversed and remanded, holding that eleventh amendment immunity does not apply to suits brought by Native Alaskans against the State of Alaska. Id. slip op. at 1502. We construed Article I, Section 8, Clause 3 of the Constitution, as providing “consent by the states to federal jurisdiction” in suits by Indian tribes. Id. 896 F.2d at 1162 (quoting U.S. Const. art. I, § 8, cl. 3). We reasoned that, because “Indian affairs are sui generis and . . . this unique area concern[s] relations with non-foreign governmental units, the surrender of state sovereignty carried with it a surrender of immunity from suit.” Id. at 1164.

SNA, however, is not a “non-foreign governmental unit.” SNA is a Native Village corporation. ANCSA describes such an entity as “an Alaska Native Village Corporation organized under the laws of the State of Alaska as a business for profit or nonprofit corporation to hold, invest, manage and/or distribute lands, property, funds, and other assets for and on behalf of a Native Village in accordance with the terms of this chapter.” 43 U.S.C. § 1602(j). SNA’s duties are created, defined and limited by ANCSA. See, e.g., 43 U.S.C. § 1607 (organization of village corporations); id. § 1611 (selections by village corporations); id. § 1613 (conveyances to village corporations). Unlike the Native Alaskan Villages in Native Village of Noatak v. Hoffman, SNA is not a governmental unit with a local governing board organized under the Indian Reorganization Act, 25 U.S.C. §§ 461-479 (1982). Because SNA is not a governing body, it does not meet one of the basic criteria of an Indian tribe. Montoya v. United States, 180 U.S. 261, 266, 45 L. Ed. 521, 21 S. Ct. 358 (1901); cf. Navajo Tribal Utility Auth. v. Arizona Dept. of Revenue, 608 F.2d 1228, 1231 (9th Cir. 1979) (for the purposes of jurisdiction under 28 U.S.C. § 1362, “‘Native corporations are not tribes or bands.'”) (quoting Cape Fox Corp. v. United States, 456 F. Supp. 784 798 (D. Alaska 1978), rev’d in part and remanded in part, 646 F.2d 399 (9th Cir. 1981)).

In summary, we conclude that Native Village of Noatak v. Hoffman does not apply to a Native Village corporation organized under ANCSA. Because SNA alleges a violation of state and not federal law, the limited exception to eleventh amendment immunity recognized in Ex Parte Young is not applicable. The district court did not err in dismissing SNA’s sixth cause of action against the Director of Forest Land and Water Management for the State of Alaska because it is barred by the eleventh amendment.

CONCLUSION

Conditional purchase options are “valid existing rights” under ANCSA. The exclusion of land subject to OTE conditional purchase options from selection under section 11(a)(2) of ANCSA furthers congressional intent by protecting “valid existing rights.” A Native Village corporation is barred by the eleventh amendment from suing an Alaskan state official for violation of Alaskan law.

AFFIRMED.