Eklutna, Inc. vs. Municipality of Anchorage

Decision on Appeal

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

Points on Appeal

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

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

Hearing Officer’s Factual Findings

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

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

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

Analysis

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

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

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

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

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

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

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

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

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

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

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

Estoppel and Destruction of Exemption

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

Conclusion

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

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

Brian Shortell, Superior Court Judge

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

I. INTRODUCTION

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

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

II. FACTS AND PROCEEDINGS

A. The Dispute

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

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

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

B. Statutory Background

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

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

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

(a) Aboriginal title extinguishment through prior land and water area conveyances

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

(b) Aboriginal title and claim extinguishment where based on use and occupancy; submerged lands underneath inland and offshore water areas and hunting or fishing rights included

All aboriginal titles, if any, and claims of aboriginal title in Alaska based on use and occupancy, including submerged land underneath all water areas, both inland and offshore, and including any aboriginal hunting or fishing rights that may exist, are hereby extinguished.

(c) Aboriginal claim extinguishment where based on right, title, use, or occupancy of land or water areas; domestic statute or treaty relating to use and occupancy; or foreign laws; pending claims

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

C. Proceedings

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

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

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

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

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

III. STANDARD OF REVIEW

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

IV. DISCUSSION

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

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

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

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

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

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

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

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

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

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

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

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

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

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

b. ANCSA does not distinguish between claims and defenses.

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

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

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

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

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

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

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

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

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

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

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

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

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

V. Conclusion

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

Akiachak Native Community v. Salazar

MEMORANDUM OPINION

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

I. BACKGROUND

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

II. LEGAL STANDARD

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

III. ANALYSIS

A. Statutory Authority to Take Alaska Land Into Trust.

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

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

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

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

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

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

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

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

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

B. Regulatory Authority

i. Effects of 25 C.F.R. § 151.1

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

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

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

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

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

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

ii. Legality of 25 C.F.R. § 151.1

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

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

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

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

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

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

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

IV. CONCLUSION

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

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

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

I

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

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

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

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

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

II

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

III

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

A. Congressional intent

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

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

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

B. Necessity

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

C. Consideration

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

D. Simultaneous conveyance

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

E. Language of the patents

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

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

F. Conclusion

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

IV

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

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

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

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

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

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

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

V

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

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

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

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

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

VI

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

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

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

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

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

CONCLUSION

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

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

AFFIRMED IN PART, VACATED IN PART, AND REMANDED.

City of Seldovia, Alaska vs. Seldovia Native Association, Inc.

Order

This case involves a dispute between a native village corporation and a municipal corporation over a “reconveyance” mandated by 43 U.S.C. § 1613(c)(3). The parties have been unable to resolve their dispute and therefore have submitted it to the Court for resolution. Because this case involves the interpretation and application of a federal statute, this Court has jurisdiction pursuant to 28 U.S.C. § 1331.

Discussion

I. Background

This dispute arises under the Alaska Natives Claims Settlement Act (“ANCSA”). See 43 U.S.C. § 1601-1629e (1988); Aleknagik Natives, Ltd. v. United States, 635 F. Supp. 1477, 1491 (D. Alaska 1985), aff’d, 806 F.2d 924 (9th Cir. 1986). In passing this legislation, Congress declared as a national policy that “there is an immediate need for a fair and just settlement of all claims by Natives and Native groups of Alaska,” and that “settlement should be accomplished rapidly, with certainty, in conformity with the real economic and social needs of Natives, without litigation … .” 43 U.S.C. § 1601(a), (b).”

ANCSA expressly extinguished all aboriginal rights.[1] See 43 U.S.C. § 1603; United States v. Atlantic Richfield Co., 435 F. Supp. 1009 (D. Alaska 1977), aff’d, 612 F.2d 1132 (9th Cir.), cert. denied, 499 U.S. 888 (1980). In exchange, Congress provided for a monetary payment and conveyance of certain lands to Alaskan natives. The land and payments were not conveyed directly to individuals. Instead, conveyances were made to native corporations authorized by the Act. ANCSA created two tiers of native corporations–regional and village–and arranged for payments of land and money to be made to these business organizations. 43 U.S.C. § 1601-1607, 1613.

Congress included provisions in ANCSA to protect those in actual possession of lands subject to transfer under the Act. Congress provided that portions of these lands would be transferred back to three different classes of entities. 43 U.S.C. § 1613. First, the village corporations were to convey the primary place of residence, business, subsistence campsite or “headquarters for reindeer husbandry” to any person who occupied land within the tract conveyed to the village corporation. 43 U.S.C. § 1613(c)(1); Hakala v. Atxam Corp., 753 P.2d 1144 (Alaska 1988). Second, the village corporations were to convey land occupied by any nonprofit organization to the organization. 43 U.S.C. § 1613(c)(2). Finally, and of relevance to the instant case, the village corporations were to convey a specified amount of land to municipal corporations sufficient to meet foreseeable community needs. ANCSA § 14(c)(3), 43 U.S.C. § 1613(c)(3)(“Section 14(c)(3)”). Specifically, Section 14(c)(3) provided:

[T]he Village Corporation shall convey to any Municipal Corporation in the Native village or to the State in trust for any Municipal Corporation established in the Native village in the future, title to the remaining surface estate of the improved land on which the Native village is located and as much additional land as is necessary for community expansion, and appropriate rights-of-way for public use, and other foreseeable community needs: Provided, That the amount of lands to be transferred to the Municipal Corporation or in trust shall be no less than 1,280 acres unless the Village Corporation and the Municipal Corporation or the State in trust can agree in writing on an amount which is less than one thousand two hundred and eighty acres: Provided further, That any net revenues derived from the sale of surface resources harvested or extracted from lands reconveyed pursuant to this subsection shall be paid to the Village Corporation by the Municipal Corporation or the State in trust: Provided, however, That the word “sale”, as used in the preceding sentence, shall not include the utilization of surface resources for governmental purposes by the Municipal Corporation or the State in trust, nor shall it include the issuance of free use permits or other authorization for such purposes;

43 U.S.C. § 1613(c)(3). These conveyances are termed “reconveyances,” because the village corporation must reconvey to third parties land that the federal government has conveyed to it. In order to encourage a final settlement with respect to the land, all conveyances pursuant to Section 14(c)(3) are subject to a one-year statute of limitations period. 43 U.S.C. § 1632(b).

II. Procedure for Reconveyance Under Section 14(c)(3)

When Congress enacted Section 14(c)(3) and required that village corporations transfer land to municipal corporations, it apparently envisioned that people with similar interests and cultural backgrounds would belong to the village corporations and their corresponding municipalities, and that the memberships in these groups would overlap. Testimony at trial has indicated that this is the common situation throughout Alaska. However, this paradigm does not apply in the present case. See Janet Klein, A History of Kachemak Bay, the County, the Communities, Homer Society of Natural History, Homer, Alaska (1981) (describing the settlement of Seldovia by European immigrants). Probably as a result of this expectation, Congress overlooked the potential for disputes between village corporations and municipalities. Congress did not enact specific procedures for resolving disputes concerning reconveyances under Section 14(c)(3). The proper procedure to follow and the Court’s proper role in resolving these disputes has been the subject of disagreement in this case and must be addressed in some detail.

The defendant, Seldovia Native Association (“SNA”), proposes the following dispute-resolution procedure. After consultation, if an agreement could not be reached between a village corporation and an affected municipal corporation, then the village would make an offer of 1280 acres to the municipality. If the municipality rejected that offer, it could appeal the issue to the federal district court. The court would then interpret the statutory language of Section 14(c)(3), using traditional tools of statutory interpretation, and derive specific criteria for the selection of lands. For example, the court could determine that the term “necessary” in Section 14(c)(3) means “essential.” If so, then one criteria for any land conveyed would be that it was essential for some use by the municipality.

Once the court determined the selection criteria, it would, under SNA’s proposal, apply those criteria to the parcel of land proposed for reconveyance by the village. However, the court would not apply the criteria de novo, but would instead apply the deferential standard appropriate for reviewing agency decisions to the original selections offered by the village. If the selections do not meet the criteria under the deferential standard of review, then the court would then order the village to prepare a new offer of land, and if the municipality rejected that offer, the appellate process would begin anew until an acceptable resolution was reached.

Judge Kleinfeld, my predecessor in this case, agreed with part of SNA’s position.[2] He interpreted the phrasing of the limitations period as compelling the Court to review decisions made by the village corporation, as opposed to making the original decisions itself. The limitations statute states:

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

43 U.S.C. § 1632. Judge Kleinfeld thought that because the statute discussed “decisions made by a village corporation,” Congress intended that SNA had the initial right to select land for reconveyance, i.e., propose a map describing land to be conveyed, which the Court would review. He refused, however, to afford the village corporation’s decision any special deference.[3]

Under Judge Kleinfeld’s analysis, the village would propose a map, which the court would review for compliance with Section 14(c)(3) criteria. The could would perform this review de novo. Should the map not comply with the criteria, the court would then direct the village to propose another parcel which would be reviewed in similar fashion. The court, however, would not “create its own map.” Docket No. 61 at 37 (transcript of May 28, 1991 oral argument).

A difficulty in the procedure proposed by Judge Kleinfeld is that it does not provide for a final resolution of its dispute. Under this procedure, the municipality and this court would be subject to potentially continuous litigation or, under the threat of continuous litigation, the party with the least resources for litigation would be pressured to accept its opponents’ proposal on its face. Continuous litigation, or the mere threat of continuous litigation, would undermine the primary and overall objective of the legislation, which was to expeditiously resolve disputes over land. See 43 U.S.C. § 1601(a), (b). While this goal remains illusive, it would be at best ironic to incorporate a procedure whereby extensive land disputes are institutionalized by the very legislation intended to resolve them. See Martha Hirschfield, Comment, The Alaska Native Claims Settlement Act: Tribal Sovereignty and the Corporate Form, 101 Yale L. J. 1331, 1332 n. 14 (1992) (hereinafter “Hirschfield”) (discussing continuing problems with ANCSA implementation).

Aside from conflicting with the stated purpose of ANCSA, the procedures proposed by both Judge Kleinfeld and the defendant are inconsistent with constitutional due process requirements. Congress is generally under no obligation to create a property right in any private individual or group. Once Congress decides to vest property rights in an individual, however, those rights are protected by the Due Process Clause. Arnett v Kennedy, 416 U.S. 134, 167 (1974), reh’g denied, 417 U.S. 977, see also Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541 (1985);[4] 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). The Due Process Clause prevents adjudication of a dispute over property rights by men and women who have even an indirect interest in the outcome. Gibson v. Berryhill, 411 U.S. 564, 579 (1973) (board of opticians consisting of independent opticians was prohibited from determining whether other opticians could practice as employees because board members would obtain a financial advantage by eliminating competition from companies who hire opticians); Ward v. Village of Monroeville 409 U.S. 57 (1972); California Tahoe Regional Planning Agency v. Sahara Tahoe Corp., 504 F. Supp. 753, 761 (D. Nev. 1980).

Congress has given the City property rights to 1280 acres of land. The Court cannot, therefore, consider SNA’s decision as to which land to convey as determinative in adjudicating the issue. To do so would, even with de novo review, create a situation where SNA was adjudicating a disputed issue concerning its own property. That would violate the rule discussed in Gibson v. Berryhill, 411 U.S. at 579.

Courts should generally interpret statutes to avoid constitutional difficulties unless such an interpretation is clearly contrary to the intent of Congress. Edward J. DeBartolo Corp. v. Florida Gulf Coast Bld. & Constr. Trades Council, 485 U.S. 568, 575 (1988); Knapp v. Cardwell, 667 F.2d 1253, 1260 (9th Cir. 1982), cert. denied, 459 U.S. 1055 (1982). The Court therefore determines that the phrase, “[D]ecisions made by a Village Corporation,” was intended to establish a moment in time when a right to review would accrue and the limitation period begin, (i.e., when the village corporation made its decision as to its final offer of land for reconveyance). See 43 U.S.C. § 1632(b). The map proposed by the village corporation presents its last and final offer, after which the one year statutory period begins. The offer is no more than one party’s position in a dispute. Indeed, as Judge Kleinfeld noted, it may be a violation of fiduciary duty for a village corporation’s board to make a decision representing anything other than the village corporation’s interest. See Parker v. Northern Mixing Co. 756 P.2d 881, 894 (Alaska 1988) (director of corporation cannot take personal advantage of business opportunity that belongs to the corporation); Bibo v. Jerry’s Restaurant, 770 P.2d 290 (Alaska 1989).

In consideration of constitutional due process limitations, the following procedure appears to be the most suitable for resolving disputes over conveyances under Section 14(c)(3). The municipal corporation is required to present a request for specific land. The parties will then negotiate with each other and, if no agreement can be reached the village will determine its best and final offer. That offer will be rendered in the form of a map, which, when filed, will initiate the one-year statutory limitations period. See 43 U.S.C. § 1632(b). The municipality then can bring suit. The Court will apply the statutory criteria to the competing proposals and decide which parcels of land should be conveyed.

In deciding not to follow the procedure offered by Judge Kleinfeld, the Court is aware that the doctrine of the law of the case limits reexamination of previous rulings in the same case. Richardson v. United States, 841 F.2d. 993, 996, amended, 860 F.2d 357 (9th Cir. 1988), cert. denied, 112 S. Ct. 1473 (1992); Bell Helicopter Textron, Inc. v. United States, 755 F. Supp. 269, 272 (D. Alaska 1990), aff’d, 967 F.2d 307 (9th Cir. 1992), cert denied, 113 S. Ct. 964 (1993). However, under certain circumstances, prior determinations that have become the law of the case may be reexamined. In Milgard Tempering, Inc. v. Selas Corp. of America, 902 F.2d 703, 715 (9th Cir. 1990), the Ninth Circuit stated:

A court properly exercises its discretion to reconsider an issue in only three instances: (1) the first decision was clearly erroneous and would result in manifest injustice; (2) an intervening change in the law has occurred; or (3) the evidence on remand is substantially different.

The instant case presents the rare situation where a previous ruling would contradict two well-established lines of Supreme Court precedent. Supreme Court decisions are, of course, controlling on this Court. In this situation, the Court has little choice but to follow the Supreme Court’s reasoning rather than that of the conflicting previous ruling.

II. Substantive Interpretation of Section 14(c)(3)

The primary objective of a court in interpreting a statute is to determine the intent of Congress. Co Petro Marketing Group, Inc. v. Commodity Futures Trading Comm’n, 680 F.2d 566,570 (9th Cir. 1982); Hughes Air Corp. v. Public Utilities Comm’n, 644 F.2d 1334, 1337 (9th Cir. 1981). The best indication of congressional intent and the starting point for the court is the plain language of the statute itself. Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 756, reh’g denied, 423 U.S. 884 (1975); California Rural Legal Assistance, Inc. v. Legal Services Corp., 917 F.2d 1171, 1175 (9th Cir. 1990). Where the plain meaning of the statute is ambiguous, (i.e., susceptible of two conflicting but reasonable interpretations, each of which would fit the facts of the case being considered), the Court looks to the legislative history of the statute and the overall structure or context of the provision. Perroton v. Gray, 958 F.2d 889, 893 (9th Cir. 1992).

The disputed terms in the instant case are those found in 43 U.S.C. § 1613(c)(3), which provides:

[The Village corporation must convey] title to the remaining surface estate of the improved land on which the Native village is located and as much additional land as is necessary for community expansion, and appropriate rights-of-way for public use, and other foreseeable community needs . . .

43 U.S.C. § 1613(c)(3) (emphasis supplied). SNA argues that Congress intended for the village corporation to convey land that is essential for predictable community needs. According to the evidence presented at trial, city planners rarely forecast a community’s needs beyond the next five to ten years. Thus, SNA argues, in essence, that it is only obligated to convey any lands that are essential (meaning that ownership of the lands is the only way to satisfy some City need) to a community need which will be manifested within the next five to ten years, as shown by a city planning analysis. If the City cannot meet the burden of establishing such needs as to 1280 specific acres of land (and SNA argues that it cannot), then Section 14(c)(3) permits the village to select for reconveyance any 1280-acre parcel which the city is statutorily obligated to accept. In effect, SNA argues that this section establishes dual but independent rights: A right to land essential for foreseeable community needs and, a right to a distinct acreage minimum.

The City disagrees, arguing that Congress intended to provide municipalities with enough land to sustain the community for the next fifty to one hundred years. As it is not possible to determine the essential community needs in fifty years’ time, the City argues that Congress intended “necessary” to mean “useful,” not “essential.” Thus, where the City can show that some tract of land will be useful within the next fifty to one hundred years, that land should be conveyed up to a minimum of 1280 acres.

Evidence introduced at trial established that Congress could not have believed that the overwhelming majority of native villages would be in a position to establish a need for 1280 acres for “essential” community services as SNA defines those terms within the foreseeable future, i.e., ten to twenty years.

Conclusion

Congress has not defined the meaning of the terms “necessary” and “foreseeable community needs” in the context in which those terms are used. The parties have established that the statute is ambiguous by proposing plausible conflicting meanings for these terms. The Court, therefore, must look beyond the plain language of the statute. Perroton, 958 F.2d at 893.

The legislative history of Section 14 is sparse. As originally proposed, ANCSA did not require that villages incorporate as a condition for receiving land. See Joint Conference Report, Alaska Native Claims Act of 1971, Pub. L. No. 92-201, 92d Cong., 1st Sess., (1971), reprinted in 1971 U.S.C.C.A.N. 2247, 2255. As the municipalities themselves and not the village corporations could hold title to the land, reconveyance of lands to municipalities was not necessary. It was only late in the legislative process at a House and Senate conference that the proposed act was altered to require villages to incorporate in order to receive land.

The Conference Committee adopted Section 14 at conference based upon Section 15 in the Senate’s version of the bill. See S. 35, 92d Cong., 1st Sess. § 15(b)(2) (1971). As originally proposed the section stated:

Upon receipt of a patent or patents to selected lands, Village Corporations or the Services Corporation on their behalf . . . (C) shall issue deeds pursuant to subsection 11(g), without payment of any consideration, to any Municipal Corporation in the Native Village or to any Municipal Corporation established in the Native Village or to any Municipal Corporation established in the Native Village within five years of the date of enactment of this Act, to the surface estate of the improved land on which the village is located and of as much additional land as is necessary for community expansion, for appropriate rights-of-way for public use, airport sites, and such other interests in land as are reasonably necessary for public use and for foreseeable community needs . . . And provided further, That the amount of lands to be transferred to the Municipal Corporation shall be no less than one hundred and sixty acres[.]

Id. (emphasis added); see also, Senate Report (Committee on Interior and Insular Affairs) on Alaska Native Claims Settlement Act of 19971, S. Rep. 143, 175, 92d Cong., 1st Sess. § 15(b)(2)(C)(1971). Section 14 was adopted as proposed by the Conference Committee Report with one important substantive change: the village corporation was required to convey 1280 acres to the municipality, not 160 acres. Alaska National Interest Lands Conservation Act, Pub. L. No. 92-203, 85 Stat 688, 1971 U.S.C.C.A.N., 794-95. ANCSA Section 14 was amended in 1980 to allow the village corporations to convey less than 1280 acres to municipalities under certain circumstances. Pub. L. No. 96-487 § 1405, 94 Stat. 2371, 2494 (codified as amended, 43 U.S.C. § 1613(c)(3)(1986)).

Overall, this legislative history indicates that Congress’s intent in enacting Section 14 (c)(3) was to protect the existing users of the lands. See Hakala v. Atxam Corp., 753 P.2d 1144, 1147 (Alaska 1988) (court held that ANCSA § 14(c)(1), was intended to protect the existing rights of those using lands). The fact that, at the final legislative stage, Congress increased the minimum acreage requirement from 160 to 1280 acres, and nine years later, preserved the 1280 acres minimum despite testimony at hearing that 1280 acres was virtually never essential to meet existing or foreseeable municipal needs of native villages, indicates the high value Congress placed on this acreage minimum. The legislative history indicates that Congress intended to ensure that existing municipalities would have at least 1280 acres of land for potential growth, if they so chose.

In light of the legislative history, SNA’s proposed interpretation, requiring a municipality to either establish that a parcel of land is essential to immediately predictable community needs or to accept a random 1280 acre parcel, is unreasonably restrictive. Such an interpretation would have the effect of eliminating the minimum acreage requirement by abolishing its purpose. The evidence in this case establishes that municipalities would rarely be able to show essential need and receive useful land. In virtually all cases, the 1280 acres would consist of land that might be useless to the community. Thus, Congress’s goal-providing municipalities with a minimum of 1280 acres of useful land would be defeated. Interpreting Section 14(c)(3) as establishing dual but independent requirements for acreage and necessity would contradict the congressional intent.

It is more reasonable to interpret Section 14(c)(3) as a single requirement of useful land, which, unless otherwise agreed, must be a minimum of 1280 acres. Such an interpretation would give a meaning to the 1280-acre minimum. See Love v. Thomas, 858 F.2d 1347, 1354 (9th Cir. 1988), cert. denied, 490 U.S. 1035 (1989) (when faced with an apparent conflict courts should interpret a statutory provision to avoid “redundancy or surplusage”). The Court will avoid making the 1280-acre minimum surplusage and will interpret Section 14(c)(3) as a single requirement, compelling the conveyance of 1280 acres of usable land.

Under this interpretation, the meaning of the disputed terms becomes clear. Congress knew and understood the size and the nature of the rural communities. Senate Report (Committee on Interior and Insular Affairs) on Alaska Native Claims Settlement Act of 1971, S. Rep. 143, 143-44, 92d Cong., 1st Sess. § 2, (1971) (discussing financial and physical condition of Alaskan natives). Congress therefore knew that municipalities would not be able to show an essential and immediately predictable need for 1280 acres. Nonetheless, Congress required conveyance of 1280 acres and refused to reduce or eliminate the acreage requirement when it amended Section 14(c)(3) in 1980. Pub. L. No. 96-487 § 1405, 94 Stat. 2371, 2494 (1980) (codified as 43 U.S.C. § 1613(c)(3)(1986)). The Court concludes, therefore, that Congress intended to establish a broad meaning of the terms “necessary” and “foreseeable community needs.”

Congress intended to provide land to the municipalities that was less than “essential” for community expansion. Of the many possible meanings for the term “necessary,” (e.g., essential, very useful, marginally useful and useless), the size of the minimum acreage requirement indicates that Congress intended to mean at least “useful.”

Similarly, Congress intended for “foreseeable community needs” to mean something less restrictive than “immediately predictable by a city planner.” Congress had a stated goal of efficiently resolving land disputes and was aware that the municipalities had limited resources. See 43 U.S.C. § 1601. The Court, therefore, refuses to interpret the statutory language as to effectively require municipalities to spend resources on a detailed five or ten year city plan in order to receive the land to which they have a right. Such an interpretation would delay the Congressional goal of resolving these disputes and would possibly frustrate the ultimate goal of Section 14(c)(3), which is to convey land to municipalities for their growth. Instead, this Court understands that Congress intended “foreseeable community needs” to mean realistic and possible community needs, not theoretical or hypothetical community needs. Also, it is important to note that this conveyance was a one-time transfer of land. Congress attempted to fairly apportion federally owned lands in Alaska. See 43 U.S.C. § 1613, Hirschfield, 101 Yale L. J. at 1335. Limiting the transfer to a parcel describable by a five or ten year city plan would artificially limit the growth of the community.

Having visited the site that is in dispute and having carefully discussed the evidence presented, I conclude that the reconveyance proposed by SNA and disputed by the City does not constitute the land most useful for municipal purposes which is owned by SNA in the vicinity of the City. I cannot compel the City to accept this land over its objections. On the other hand, I agree with SNA that Congress intended that land was to be conveyed for municipal purposes, not for speculation or for competition with the village in income-producing activities. The Court therefore cannot approve any existing plan.

Having disapproved the proposed reconveyance, and established criteria for evaluating any future reconveyance, the Court is now prepared to establish procedures for bringing this case to a final conclusion. It is possible that with the guidance provided by this decision, the parties may be able to settle this case. I am not optimistic. Nevertheless, I will allow some time for discussion between the parties, if this case cannot settle.

It is the Court’s intention to appoint three special masters, pursuant to Federal Rule of Civil Procedure (“FRCP”) 53, to review the record and take any additional evidence they feel necessary and, based on the evidence, formulate a plan for the reconveyance of 1280 acres owned by SNA, in the vicinity of Seldovia, which would be useful in meeting foreseeable municipal needs. In evaluating any particular parcel, the masters should consider alternate uses to which SNA has currently committed any specific parcel of land. The Court would allow the masters sixty days to deliver their plan and would allow the parties to file objections, in conformity with FRCP 53. The Court will then rule on the objections and resolve the case.

If the parties can agree on a panel of three men and women, knowledgeable about city planning in Alaska and willing to serve as special masters, and submit their name to the Court, the names submitted will be chosen as masters by the Court.

If the parties cannot agree on three masters, then each party shall choose one person who has some knowledge and understanding of local government or city planning in Alaska and who has no conflict of interest, assure that the person chosen will serve, and submit the name of that person to the Court no later than Monday, May 17, 1993. The two masters chosen by the parties will then meet and confer, at an agreed time and place, and pick the third master according to the same criteria, (i.e., willing to service, no conflict on interest, and knowledge about local government or city planning in Alaska). The masters will be paid by the parties.

The parties shall meet and confer, at an agreed time and place, and prepare a draft order of reference, which is in conformity with Federal Rule of Civil Procedure 53, naming the three masters chosen and indicating their agreement to serve, setting out in detail the directions to the masters for resolving this case and preparing a report and recommendation to the Court. The order of reference should also set out a proposed timetable for completion of the masters’ task and the terms established for payment of the masters’ fees and expenses. The parties should consult with the masters before proposing a timetable.

Is it my expectation that the parties, with the aid of their experienced counsel, should be able to reach general agreement regarding the provisions of the order of reference and file their proposed draft with the Court on or before Monday, May 24, 1993. If there are specific disagreements regarding particular terms, each party shall file a written statement regarding terms in dispute on or before May 24, 1993.

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

I. INTRODUCTION

In September 1961, the U.S. Bureau of Land Management (BLM) issued a right-of-way grant to the Alaska Department of Public Works (now the Department of Transportation and Public Facilities) conveying a “road building material site” along the Denali Highway with no expiration date and no rental fee. The right-of-way grant was issued pursuant to federal statutes and subject to relevant federal highway regulations.

After the Alaska Native Claims Settlement Act (ANCSA) was enacted in 1971,[1] the United States conveyed the surface and subsurface estates encompassing the State’s material site to Ahtna, Inc. (Ahtna), an Alaska Regional Native Corporation created pursuant to ANCSA. The conveyance was “subject to” the “[r]ights-of-way for Federal Aid material sites.”

Section 14(g) of ANCSA[2] allowed the federal government to waive administration of the rights-of-way, which BLM did in 1984. The BLM waiver stated that the State was the grantee of the right-of-way at issue, and instead of providing an expiration date the waiver described the term of duration of the right-of-way as “[p]erpetual.” The waiver entitled Ahtna to “any and all interests previously held by the United States as grantor,” but the waiver explicitly stated that there were no rental or other revenues associated with the right-of-way. The State removed material from the site until 1988, but the State did not use material from the site for the next 20 years. The State began using the site again in 2008.

Ahtna demanded compensation for the removal of gravel from the material site and directed the State to cease and desist further entry onto Ahtna lands. The State responded that its right to remove the gravel pre-existed Ahtna’s title interest.

The State filed suit against Ahtna, and the parties filed cross-motions for summary judgment. The superior court granted summary judgment to the State, concluding that the State had a valid interest in the material site right-of-way for nonuse or abandonment so long as the State operated and maintained the Denali Highway. Ahtna appeals.

We affirm the superior court’s grant of summary judgment to the State.

II. FACTS AND PROCEEDINGS

A. The State’s Material Site Right-Of-Way

On June 6, 1960, the Department of Public Works submitted an application to BLM for a material site easement at milepost 118.5 of the Denali Highway near Cantwell. The State intended to use the 14-acre site to obtain gravel for highway construction. On September 26, 1961, BLM approved the application and granted the State a right-of-way. The grant, F-026069, listed the permitted use for the right-of-way as “[r]oad building material site,” listed the expiration date as “[n]one,” and listed the rental amount as “[n]one.” The grant’s map was labeled “material site easement.” The BLM decision granting the right-of-way indicated it was issued pursuant to “Section 17 of the Federal Highway Act of November 9, 1921 (42 Stat. 216; 23 U.S.C. 18)”[3] and subject to specified federal regulations.

B. BLM Waives Administration Of The Material Site.

ANCSA was enacted on December 18, 1971.[4] Ahtna is one of the 13 Alaska Native Regional Corporations organized under the terms of ANCSA. Pursuant to ANCSA, on October 23, 1981, the United States conveyed the surface and subsurface estates encompassing certain of the State’s material site rights-of-way to Ahtna through Interim Conveyance 443 (I.C. 443). This conveyance stated that it was “subject to” the “[r]ights-of-way for Federal Aid material sites” and specifically listed F-026069 as one of these rights-of-way. There are at least 61 state material sites on Ahtna’s land including F-026069.

 Section 14(g) of ANCSA addresses the preservation of existing rights on land conveyed to an Alaska Native Corporation and waiver of federal government administration. It states in part:

All conveyances made pursuant to this chapter shall be subject to valid existing rights. Where, prior to patent of any land or minerals under this chapter, a[n] easement… has been issued for the surface or minerals covered under such patent, the patent shall contain provisions making it subject to the… easement, and the rights of the… grantee to the complete enjoyment of all rights, privileges, and benefits thereby granted to him. Upon issuance of the patent, the patentee shall succeed and become entitled to any and all interests of the State or the United States as… grantor, in any such… easements covering the estate patented… The administration of such… easement shall continue to be by the State or the United States, unless the agency responsible for administration waives administration.[5]

When implementing Section 14(g) of ANCSA, the United States Department of the Interior promulgated a regulation making waiver of administration mandatory when the material site was entirely within the conveyance:

Leases, contracts, permits, rights-of-way, or easements granted prior to the issuance of any conveyance under this authority shall continue to be administered by the State of Alaska or by the United States after the conveyance has been issued, unless the responsible agency waives administration. Where the responsible agency is an agency of the Department of the Interior, administration shall be waived when the conveyance covers all the land embraced within a lease, contract, permit, right-of-way, or easement, unless there is a finding by the Secretary that the interest of the United States requires continuation of the administration by the United States.[6]

BLM waived its administration of all the rights-of-way contained in I.C. 443, including material site F-026069, on September 6, 1984. The waiver reiterated that I.C. 443 was “subject to” rights-of-way that had been granted to the State of Alaska. The waiver did not provide an expiration date, instead describing the rights-of-way as “[p]erpetual.” The waiver also stated:

Pursuant to law, the grantee is entitled to all rights, privileges, and benefits granted by the terms of the grants during the term of the grants until they expire, are relinquished, or are modified by mutual consent of Ahtna, Incorporated and the State of Alaska, Department of Transportaion and Public Facilities.

Ahtna, Incorporated is entitled to any and all interests previously held by the United States as grantor in any such grants within the conveyance boundaries.

There are no rental, or other revenues associated with these rights-of-ways.

The State appealed BLM’s waiver decision to the Interior Board of Land Appeals (IBLA), arguing that BLM’s waiver of its administration of these rights-of-way did not transfer administration of the rights-of-way to the Native Corporation. However, in State of Alaska I, the IBLA panel majority held that even though the words “transfer” or “assign” do not appear in Section 14(g) of ANCSA or the implementing regulations, the “effect of such a waiver is to accomplish a transfer of [administration of outstanding rights-of-way] to the Native corporation to which the land has been conveyed.”[7] The IBLA stated, “If [the United States] elects to waive its right of administration, that function must naturally flow to, and be reposed in the owner of the land. There can be no other logical consequence.”[8] The IBLA further explained:

[S]uch waiver and resultant transfer have not in any case impaired or diminished the State’s “complete enjoyment” of its legal rights under the lease or right-of-way held by it. It still enjoys the same right to use the same land in the same manner under the same terms and conditions as before.[9]

Administrative Law Judge Franklin D. Arness issued a vigorous dissent to this opinion. Judge Arness argued there was “no authority” for the majority’s holding that the waiver of administration by BLM “automatically results in a transfer of administration of an affected lease or right-of-way to the Native corporation which has been granted the servient estate.”[10] Judge Arness asserted that because the rights-of-way at issue were created pursuant to the Federal-Aid Highway Act, that statute’s framework for administering the rights-of-way applied.[11] Under the Act, the Secretary of Transportation determined what lands may be appropriated as rights-of-way and material sites, and filed a map identifying those lands with “the Secretary of the Department supervising the administration of such lands or interests in lands” (in this case the Department of the Interior).[12] The administering Secretary in turn had to affirmatively reject the map, or else the Secretary of Transportation could transfer that land to the State highway department.[13] Further, 23 U.S.C. § 317(c) states:

If at any time the need for any such lands or materials for such purposes shall no longer exist, notice of the fact shall be given by the State highway department to the Secretary [of Transportation] and such lands or materials shall immediately revert to the control of the Secretary of the Department from which they had been appropriated [here, the Department of the Interior].

Thus, Judge Arness concluded that the Secretary of Transportation has “primary control” over the rights-of-way until the State notifies the Secretary that it intends to terminate the grant.[14] Only then, Judge Arness reasoned, would the Secretary of the Interior have the authority to exercise his discretion concerning the continued existence of the grant.[15] The State did not appeal the IBLA decision.

In 1987 the IBLA issued another opinion, State of Alaska II, holding that waiver of administration of the rights-of-ways “shift[s] the forum for resolution of the propriety of action taken in the administration of the right-of-way from Federal to State court and bypass[es] the intermediate step of administrative adjudication by the Department [of Interior].”[16] The IBLA also determined that the Native Corporation’s role as grantor of the rights-of-way “include[es] the right to cancel” the grant.[17] The State did not appeal this IBLA decision, either.

C. Ahtna Attempts To Cancel The State’s Material Site Grant.

In 2007 Ahtna and the State began to dispute their respective rights regarding the material sites on Ahtna’s land. On March 30, 2007, Ahtna proposed that the State relinquish any claim to the material sites to clear title for Ahtna. Ahtna also asserted that it expected to receive compensation for past removal of material from the material sites and directed the State to cease and desist entering Ahtna’s lands without the corporation’s written consent. Ahtna wrote another cease-and-desist letter but stated that it would sell material to the State at market rate. The State responded that the public should not be required to pay for a right it already held and which existed before Ahtna’s title interest was created.

The State hired a third-party contractor to crush gravel from material site F-026069 in early 2008, but Ahtna sought to prevent this work. On April 25, 2008, Ahtna sent an “official notice of cancellation” to the State stating that all material right-of-way grants including F-02069 were “null and void” having “expired and/or been abandoned.” The State responded that Ahtna did not have the authority to terminate the State’s rights and the State did not recognize the termination. Both parties agree that the State had not used F-026069 for gravel extraction for 20 years, from 1988 to 2008.

D. Procedural Background

On April 24, 2008, the State filed a complaint in the superior court against Ahtna to quiet title and for interference with contract. The State requested that the superior court quiet title to F-026069 in favor of the State and enter an injunction directing Ahtna to refrain from interfering with the State’s use of the material site. Ahtna filed a counterclaim seeking a judgment declaring the material site right-of-way null and void and quieting title to the subsurface estate in favor of Ahtna.

The parties filed cross-motions for summary judgment; both parties agreed there were no genuine issues of material fact in the case. Superior Court Judge Michael A. MacDonald granted summary judgment to the State concluding: (1) “the State continues to hold a valid interest in Material Source Right-of-Way Grant F-026069… under the Federal-Aid Highway Act;” (2) “Ahtna does not have administrative authority over the grant;” (3) if the State intends to relinquish its interest in F-026069, “the State must affirmatively abandon [its] interest in the grant and therefore Ahtna cannot unilaterally revoke the State’s interest;” and (4) “the grant cannot be deemed abandoned so long as the State operates and maintains the Denali Highway.” In reaching its conclusion that Ahtna does not have administrative authority over the grant, the superior court agreed with Administrative Law Judge Arness’s dissent in the IBLA case State of Alaska I that “[t]he BLM waiver amounts to only a giving up of the administrative authority” but “does not constitute a transfer of that authority to Ahtna.” Ahtna appeals the superior court’s summary judgment rulings.

III. STANDARD OF REVIEW

We review grants of summary judgment de novo.[18] We consider “whether any genuine issue of material fact exists and whether on the established facts, the moving party is entitled to judgment as a matter of law.”[19]

Because we agree with the parties that the material facts in this case are not in dispute, the issues presented are pure questions of law. We interpret statutes and regulations “according to reason, practicality, and common sense, taking into account the plain meaning and purpose of the law as well as the intent of the drafters.”[20] The law in force at the time the grant was made controls.[21]

IV. DISCUSSION

Assuming BLM’S Waiver Transferred Administrative Authority To Ahtna, That Authority Did Not Include The Right To Cancel The State’s Interest In The Material Site for Nonuse Or Abandonment Without Consent From The State.

The superior court concluded that “[t]he BLM waiver amounts to only a giving up of the administrative authority. It does not constitute a transfer of that authority to Ahtna.” The superior court explained, “Ahtna did not inherit the power or authority to administer the right-of-way as a quasi-governmental entity.”

Ahtna argues that under the doctrine of collateral estoppel, the IBLA decision in State of Alaska I precludes the superior court from concluding that BLM’s waiver did not transfer administrative authority over the State’s material site to Ahtna.

Collateral estoppel “bars the relitigation of issues actually determined in [earlier] proceedings.”[22] Collateral estoppel is applicable where:

(1) the party against whom the preclusion is employed was a party to or in privity with a party to the first action; (2) the issue precluded from relitigation is identical to the issue decided in the first action; (3) the issue was resolved in the first action by a final judgment on the merits; and (4) the determination of the issue was essential to the final judgement.[23]

We have recognized:

Principles of finality may be applied to the decisions of administrative agencies if, after case-specific review, a court finds that the administrative decision resulted from a procedure that seems an adequate substitute for judicial procedure and that it would be fair to accord preclusive effect to the administrative decision.[24]

For purposes of this opinion, we assume that the superior court was bound by the IBLA’s determination in State of Alaska I under the doctrine of collateral estoppel and that the BLM waiver constituted a transfer of administration and should have been given preclusive effect by the superior court. However, even assuming BLM’s waiver transferred administrative authority to Ahtna, we hold that authority did not include the power for Ahtna to cancel the right-of-way grant for nonuse or abandonment without the State’s consent.[25]

A. The plain language of the right-of-way grant and waiver of administration does not authorize Ahtna to cancel the grant for nonuse or abandonment without the State’s consent.

The plain language of the grant and waiver of administration shows that Ahtna has no authority to cancel the grant for nonuse or abandonment without the State’s consent. The grant provided that the expiration date was “[n]one.” The waiver’s language reinforced this when it described the right-of-way’s term as “[p]erpetual” and stated, “[T]here are no rental, or other revenues associated with these rights-of-way.” Most significantly, the waiver stated:

Pursuant to law, the grantee is entitled to all rights, privileges, and benefits granted by the terms of the grants during the terms of the grants until they expire, are relinquished, or are modified by mutual consent of Ahtna, Incorporated and the State of Alaska, Department of Transportaion and Public Facilities.

(Emphasis added.) Because the right-of-way does not expire, has not been relinquished by the State, and has not been modified by mutual consent of Ahtna and the State, the grant does not cease to exist by nonuse or abandonment.

B. The grant’s controlling statutes and regulations do not allow Ahtna to cancel the grant without the State’s consent.

Ahtna also argues the grant is subject to regulations allowing for cancellation without the State’s consent. The grant states that it is subject to federal regulation “43 CFR, Part 244, Subparts A and G” as well as “[a]ll regulations” in “[c]ircular numbers 1915, 2001, 2004, [and] 2012.” Ahtna asserts that two regulations under 43 C.F.R. Part 244 (1955) (recodified as 43 C.F.R. Group 2800 (1971)), the regulations applicable at the time of the grant, allow cancellation without consent. First, Ahtna argues that 43 C.F.R. § 244.7(a), which would characterize the right-of-way as a revocable permit subject to the discretion of an authorized officer, applies. Second, Ahtna argues that 43 C.F.R. § 244.15(b), which allowed a cancellation of rights-of-way by the authorized officer for abandonment or nonuse, applies.

1. The State has a material site easement, not a revocable permit.

Ahtna and the State disagree as to what kind of property interest the State possesses. Ahtna asserts that it is a revocable permit while the State asserts it is a right-of-way easement. 43 C.F.R. § 244.7(a) states:

The interest granted shall consist of an easement, license, or permit in accordance with the terms of the applicable statute; no interest shall be greater than a permit revocable at the discretion of the authorized officer unless the applicable statute provides otherwise.

(Emphasis added.) While Ahtna argues that the Federal-Aid Highway Act does not “provide[] otherwise” and therefore the grant is a revocable permit, we disagree. The Act expressly authorized the State to determine when the right-of-way would terminate:

If at any time the need for any such lands or materials for such purposes shall no longer exist, notice of the fact shall be given by the State highway department to the Secretary [of Transportation] and such lands or materials shall immediately revert to the control of the Secretary of the Department from which they had been appropriated [here, the Department of the Interior].[26]

This language indicates that the Act provided a specific mechanism for ending the right-of-way under the statute. The statute requires an affirmative act by the State rather than leaving the fate of the right-of-way to the discretion of “the authorized officer.”[27]

Further, no document related to the conveyance of the material site characterizes the interest as a revocable permit. Rather, the plain language of the grant and the interim conveyance to Ahtna indicates that the State has a right-of-way easement. The phrase “right-of-way” is used in the title as well as in the text of the grant. The map attached to the grant displaying the right-of-way along the Denali Highway characterizes the right-of-way as a “material site easement.” I.C. 443 Paragraph 16 also states that Ahtna’s grant of lands is subject to “Rights-of-way for Federal Aid material sites.”

Case law also supports the conclusion that the State’s interest is a material site easement. In Southern Idaho Conference Association of Seventh Day Adventists v. United States, the Ninth Circuit held that a material site “appropriated by the United States through the Department of Interior and transferred to the State of Idaho pursuant to the provisions of 23 U.S.C. § 317” was a material site easement.[28] And in Tetlin Native Corporation v. State, we considered a material site granted to the State by the Bureau of Indian Affairs under the Federal-Aid Highway Act to be a “material site easement.”[29] Material site F-026069 is a right-of-way easement, not a revocable permit.

2. The State’s right-of-way grant cannot be canceled for nonuse or abandonment.

Under the terms of the grant, the State’s right-of-way is subject to 43 C.F.R. § 244.15(b) (1955), which provided:

(b) Nonconstruction, abandonment, or nonuse. Unless otherwise provided by law, rights-of-way are subject to cancellation by the authorized officer for failure to construct within the period allowed and for abandonment or nonuse.[30]

Ahtna argues that it is the authorized officer,[31] and therefore has “the discretion and authority to cancel the State’s interest in the material site for either abandonment or nonuse.” (Emphasis in original.) The State asserts that Ahtna is not an authorized officer. Whether Ahtna is or is not the authorized officer is irrelevant because this regulation applies “[u]nless otherwise provided by law.”[32] The Federal-Aid Highway Act’s provision, 23 U.S.C. § 317(c) (1958), as discussed above, “otherwise… provide[s]” the exclusive procedure the State must follow to relinquish control of the material site. The Act expressly authorizes the State to determine when to terminate the right-of-way; therefore 43 C.F.R. § 244.15(b) is inapplicable.

Ahtna also argues that this court has previously held that a Native Corporation has the power to terminate the State’s interest in material sites under federal regulations. Ahtna points out that in Tetlin Native Corporation v. State, we stated that a Native Corporation “as a successor-in-interest to the Federal Government has the power to terminate the material site easements if the State abandons or discontinues the use for which the sites were granted.”[33] But the context of the conveyance of the land containing the material site easements to Tetlin Native Corporation was significantly different than the circumstances of the conveyance in this case, and the regulatory authority creating the power to terminate material site easements in Tetlin is not the authority governing the material site easement in this case.

In Tetlin Native Corporation, the material site easements at issue were located on the Tetlin Native Reserve, land owned by the United States but occupied by the Tetlin Native people.[34] The land was subsequently conveyed to the Tetlin Native Corporation under terms contained in ANCSA; the “Tetlin Native Corporation… elected to receive fee simple title to its former reserve and forego participation in the monetary settlement authorized by ANCSA.”[35] In this context we said, “Tetlin as successor-in-interest to the Federal Government has the power to terminate the material site easements if the State abandons or discontinues the use for which the sites were granted. 25 C.F.R. § 169.20.”[36] Our citation to 25 C.F.R. § 169.20 is significant. Title 25 C.F.R. § 169.20 by its own terms applies only to “[a]ll rights-of-way granted under the regulations in this part.[37] Part 169 of Title 25 of the Code of Federal Regulations pertains to rights-of-way over Indian lands, like the Tetlin Native Reserve. But Title 25 C.F.R. Part 169 does not apply to the Federal-Aid Highway grant in this case; rather Title 43 C.F.R. Part 244 provides the applicable regulations, and as explained above, because the Federal-Aid Highway Act provides otherwise, even the provisions of 43 C.F.R. § 244.15(b) pertaining to cancellation by nonconstruction, abandonment, and nonuse do not apply. To summarize, the State’s right-of-way grant cannot be canceled for nonuse or abandonment because the Federal-Aid Highway Act’s provisions preempt the applicability of 43 C.F.R. § 244.15(b), and no other regulation permitting termination for nonuse or abandonment applies.

VI. CONCLUSION

We AFFIRM the superior court’s grant of summary judgment to the State.