Topic: Land

[*1325] ORDER

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

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

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

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

DISCUSSION

I. Background

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

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

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

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

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

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

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

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

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

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

43 C.F.R. § 2650.5-4.

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

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

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

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

II. Constitutional Due Process

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

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

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

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

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

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

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

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

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

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

CONCLUSION

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

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

IT IS THEREFORE ORDERED:

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

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

HONORABLE JAMES K. SINGLETON

United States District Court Judge 

 

CANBY, Circuit Judge:

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

I.

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

A. The Alaska Native Claims Settlement Act

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

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

B. The Villages’ Section 12(a) Selections

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

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

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

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

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

C. The Terms and Conditions Agreement

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

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

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

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

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

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

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

E. The Deficiency Agreement

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

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

B. CIRI shall reconvey the surface estate of such lands to the Village Corporations within the Region pursuant to an agreement between CIRI and the affected Village Corporations, which agreement is attached as Appendix B to this agreement and which agreement may be modified by the parties thereto.

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

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

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

Deficiency Agreement (emphasis added).

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

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

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

Id., at § 4.

F. The Present Dispute

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

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

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

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

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

II.

A. Standard of Review

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

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

B. The Deficiency Agreement

1. The Plain Language

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

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

2. “Statutory Entitlement”

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

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

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

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

3. Paragraph B

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

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

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

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

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

4. Practical Construction and Denial of Summary Judgment

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

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

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

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

6. Canons of Construction

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

C. Ninilchik

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

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

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

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

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

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

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

III.

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

The judgment of the district court is

AFFIRMED. 

O’Scannlain, Circuit Judge:

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

I

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

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

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

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

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

Leisnoi timely appealed.[5]

II

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

A

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

Section 14(f) reads, in relevant part:

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

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

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

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

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

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

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

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

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

The Village Corporation for each Native village . . .  shall select . . .  all of the township or townships in which any part of the village is located, plus an area that will make the total selection equal to the acreage to which the village is entitled . . . .

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

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

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

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

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

B

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

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

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

1

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

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

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

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

2

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

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

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

a

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

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

b

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

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

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

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

c

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

III

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

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

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

AFFIRMED.

O R D E R of Summary Judgment

I. INTRODUCTION

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

II. BACKGROUND

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

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

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

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

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

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

III. LEGAL STANDARD

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

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

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

IV. DISCUSSION

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

V. CONCLUSION

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

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

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

I

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

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

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

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

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

II

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

III

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

A. Congressional intent

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

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

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

B. Necessity

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

C. Consideration

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

D. Simultaneous conveyance

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

E. Language of the patents

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

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

F. Conclusion

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

IV

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

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

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

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

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

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

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

V

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

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

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

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

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

VI

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

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

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

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

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

CONCLUSION

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

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

AFFIRMED IN PART, VACATED IN PART, AND REMANDED.